Exhibit 99.28
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
In re: )
)
) Chapter 11
AMERISERVE FOOD ) Case Nos. 00-358 (PJW) and
DISTRIBUTION, INC., et al,(1) ) 00-373 (PJW) through 00-385 (PJW)
) JOINTLY ADMINISTERED
)
)
Debtors. )
- -------------------------------------------)
DEBTORS' THIRD AMENDED JOINT LIQUIDATING PLAN
OF REORGANIZATION PURSUANT TO CHAPTER 11
OF THE UNITED STATES BANKRUPTCY CODE
James H.M. Sprayregen Laura Davis Jones
James A. Stempel Michael R. Seidl
Matthew N. Kleiman PACHULSKI, STANG, ZIEHL,
Geoffrey A. Richards YOUNG & JONES P.C.
Chris L. Dickerson 919 North Market Street, 16th Floor
KIRKLAND & ELLIS P.O. Box 8705
200 East Randolph Street Wilmington, DE 19899-8705 (Courier 19801)
Chicago, Illinois 60601 (302) 652-4100
(312) 861-2000 Co-Counsel for Debtors and
Co-Counsel for Debtors and Debtors in Possession
Debtors in Possession
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(1) The Debtors are the following entities: AmeriServe Food
Distribution, Inc., NEBCO EVANS Holding Company, Holberg Warehouse Properties,
Inc., AmeriServe Transportation, Inc., PSD Transportation Services, Inc.,
Chicago Consolidated Corporation, ASNSC, Inc., Delta Transportation, Ltd., PSC
Services of Florida, Inc., Northland Transportation Services, Inc., ProSource
Mexico Holdings, Inc., NAVC Corp., North American Vantix Corp., and Vantix
Logistics Ltd.
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS ........................................................... 1
1.1 Adequate Protection Agreements ............................... 1
1.2 Ad Hoc Senior Secured Noteholder Committee ................... 1
1.3 Ad Hoc Reclamation Committee ................................. 1
1.4 Ad Hoc Senior Secured Noteholder Committee Professional
Fees ......................................................... 1
1.5 Ad Hoc Senior Secured Noteholder Committee Professionals ..... 1
1.6 Administrative Claims Bar Date ............................... 2
1.7 Administrative Expense Claim ................................. 2
1.8 AFD .......................................................... 2
1.9 AFD Interest ................................................. 2
1.10 Affiliate .................................................... 2
1.11 Agent ........................................................ 2
1.12 Allowed Administrative Expense Claim ......................... 2
1.13 Allowed Claim/Allowed Interest ............................... 2
1.14 Allowed General Unsecured Claim .............................. 3
1.15 Allowed NEHC Claim ........................................... 3
1.16 Allowed PACA Claim ........................................... 3
1.17 Allowed Priority Tax Claim ................................... 3
1.18 Allowed Reclamation Claim .................................... 3
1.19 Allowed Secured Claim ........................................ 3
1.20 Allowed Senior Secured Noteholder Claim ...................... 3
1.21 Allowed Tranche A Lender Claim ............................... 3
1.22 Allowed Tranche B Lender Claim ............................... 3
1.23 Allowed Tricon Claim ......................................... 3
1.24 Allowed Tricon Unsecured Claim ............................... 3
1.25 Alternative Sale Transaction ................................. 3
1.26 AmeriServe Capital ........................................... 3
1.27 ASNSC ........................................................ 3
1.28 ASNSC Interest ............................................... 3
1.29 ATI .......................................................... 4
1.30 ATI Interest ................................................. 4
1.31 Bailed Inventory ............................................. 4
1.32 Ballot ....................................................... 4
1.33 Ballot Date .................................................. 4
1.34 Bankruptcy Causes of Action .................................. 4
1.35 Bankruptcy Code .............................................. 4
1.36 Bankruptcy Court ............................................. 4
1.37 Bankruptcy Rules ............................................. 4
1.38 Base Reserve Amount .......................................... 4
1.39 BKC .......................................................... 4
i
1.40 Business Day ................................................. 5
1.41 Cash ......................................................... 5
1.42 Cash Collateral Stipulations ................................. 5
1.43 Cash Equivalents ............................................. 5
1.44 CCC .......................................................... 5
1.45 CCC Interest ................................................. 5
1.46 Chapter 11 Cases ............................................. 5
1.47 Claim ........................................................ 5
1.48 Class ........................................................ 5
1.49 Collateral ................................................... 5
1.50 Collateral Support Reimbursement Obligation .................. 6
1.51 Confirmation Date ............................................ 6
1.52 Confirmation Hearing ......................................... 6
1.53 Confirmation Order ........................................... 6
1.54 Credit Agreement ............................................. 6
1.55 Creditor ..................................................... 6
1.56 Creditors' Committee ......................................... 6
1.58 Debtors ...................................................... 6
1.59 Debtors in Possession ........................................ 6
1.60 Delta Transportation ......................................... 7
1.61 Delta Transportation Interest ................................ 7
1.62 DIP Facility ................................................. 7
1.63 DIP Facility Claim ........................................... 7
1.64 DIP Financing Order .......................................... 7
1.65 Disclosure Statement ......................................... 7
1.66 Disputed Claim; Disputed Interest ............................ 7
1.67 Disputed Claim Amount ........................................ 7
1.68 Distribution Agreement ....................................... 7
1.69 DLJ .......................................................... 7
1.70 D&O Releasees ................................................ 8
1.71 Effective Date ............................................... 8
1.72 8 _% Senior Unsecured Notes .................................. 8
1.73 Encumbered Residual Assets ................................... 8
1.74 Entity ....................................................... 8
1.75 Equity Security .............................................. 8
1.76 Excess Transition Costs ...................................... 8
1.77 15% Senior Convertible Notes ................................. 8
1.78 Final Order .................................................. 9
1.79 Finco ........................................................ 9
1.80 General Claims Bar Date ...................................... 9
1.81 General Unsecured Claim ...................................... 9
1.82 Holberg ...................................................... 9
1.83 HWPI ......................................................... 9
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1.84 HWPI Interest ................................................ 9
1.85 Intercompany Affiliate ....................................... 9
1.86 Intercompany Claims .......................................... 9
1.87 Interest ..................................................... 9
1.88 IRC .......................................................... 9
1.89 IRS .......................................................... 9
1.90 Lien ......................................................... 9
1.91 McLane ....................................................... 10
1.92 McLane Purchase Agreement .................................... 10
1.93 McLane Proceeds .............................................. 10
1.94 NAVC ......................................................... 10
1.95 NAVC Interest ................................................ 10
1.96 NEDI ......................................................... 10
1.98 NEHC ......................................................... 10
1.99 NEHC Interest ................................................ 10
1.100 North American Vantix ........................................ 10
1.101 North American Vantix Interest ............................... 10
1.102 NTSI ......................................................... 10
1.103 Noteholder Distribution ...................................... 10
1.104 Noteholder Proportion ........................................ 10
1.105 NTSI Interest ................................................ 10
1.106 PACA Account ................................................. 10
1.107 PACA Cash Amount ............................................. 11
1.108 PACA Claim ................................................... 11
1.109 Parent Guaranty .............................................. 11
1.110 Party in Interest Matrix ..................................... 11
1.111 Person ....................................................... 11
1.112 Petition Date ................................................ 11
1.113 Plan ......................................................... 11
1.114 Plan Administrator ........................................... 11
1.115 Plan Supplement .............................................. 11
1.116 POC .......................................................... 11
1.117 Post-Confirmation Administrative Expense Advances ............ 11
1.118 Post-Effective Date Administrative Expense Budget ............ 12
1.119 Post-Confirmation Estate ..................................... 12
1.120 Post-Confirmation Estate Agreement ........................... 12
1.121 Post-Confirmation Estate Assets .............................. 12
1.122 Priority Non-Tax Claim ....................................... 12
1.123 Priority Tax Claim ........................................... 12
1.124 Professional Compensation and Reimbursement Claims ........... 12
1.125 Pro Rata Share ............................................... 12
1.126 ProSource Mexico ............................................. 13
1.127 ProSource Mexico Interest .................................... 13
iii
1.128 PSC Services ................................................. 13
1.129 PSC Services Interest ........................................ 13
1.130 PSD Transportation ........................................... 13
1.131 PSD Transportation Interest .................................. 13
1.132 Reclamation Claim ............................................ 13
1.133 Reclamation Committee Designee ............................... 13
1.134 Record Date .................................................. 13
1.135 Replacement Collateral ....................................... 13
1.136 Replacement Collateral Obligations ........................... 13
1.137 Sale Transaction ............................................. 14
1.139 Schedules .................................................... 14
1.140 Secured Claim ................................................ 14
1.141 Secured Lender Causes of Action .............................. 14
1.142 Secured Lender Claims ........................................ 14
1.143 Secured Lenders .............................................. 14
1.144 Senior AFD Indenture ......................................... 14
1.145 Senior AFD Indenture Trustee ................................. 15
1.146 Senior Secured Indenture ..................................... 15
1.147 Senior Secured Indenture Trustee ............................. 15
1.148 Senior Secured Loan .......................................... 15
1.149 Senior Secured Noteholders ................................... 15
1.150 Senior Secured Noteholder Claims ............................. 15
1.151 Senior Secured Noteholder Proceeds ........................... 15
1.152 Senior Secured Notes ......................................... 15
1.153 Subordinated AFD Indenture ................................... 15
1.154 Subordinated AFD Indenture Trustee ........................... 15
1.155 Subordinated NEHC Indenture .................................. 15
1.156 Subordinated NEHC Indenture Trustee .......................... 15
1.157 Subsidiary Guaranty .......................................... 16
1.158 10 _% Senior Subordinated Notes .............................. 16
1.159 13% Junior Subordinated Notes ................................ 16
1.160 13 1/4% Senior Unsecured Notes ............................... 16
1.161 Tranche A Lender Claims ...................................... 16
1.162 Tranche A Lenders ............................................ 16
1.163 Tranche B Interest ........................................... 16
1.164 Tranche B Lender ............................................. 16
1.165 Tranche B Lender Claims ...................................... 16
1.166 Tranche B Recovery ........................................... 16
1.167 Tranche B Reserve ............................................ 16
1.168 Tricon ....................................................... 16
1.169 Tricon Claims ................................................ 17
1.170 Tricon Designee .............................................. 17
1.171 Tricon Funding ............................................... 17
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1.172 Tricon Parties ............................................... 17
1.173 Tricon Prepetition Receivable ................................ 17
1.174 Tricon Reimbursement Claim ................................... 17
1.175 12 _% Senior Discount Notes .................................. 17
1.176 Unknown Causes of Action ..................................... 17
1.177 Unsecured Claim .............................................. 17
1.178 Unsecured Notes .............................................. 17
1.179 Vantix Logistics ............................................. 17
1.180 Vantix Logistics Interest .................................... 17
1.181 Other Definitions ............................................ 18
ARTICLE II
COMPROMISE AND SETTLEMENT OF DISPUTES;ASSUMPTION OF OBLIGATIONS
UNDER THE PLAN ........................................................ 18
2.1 Compromise and Settlement .................................... 18
ARTICLE III
SUBSTANTIVE CONSOLIDATION OF DEBTORS; CANCELLATION OF INTERCOMPANY
CLAIMS ................................................................ 18
3.1 Substantive Consolidation .................................... 18
3.2 Cancellation of Intercompany Claims .......................... 18
ARTICLE IV
PROVISIONS FOR PAYMENT OF ADMINISTRATIVE EXPENSE CLAIMS AND
PRIORITY TAX CLAIMS ................................................... 18
4.1 Administrative Expense Claims ................................ 18
4.2 Payment of Priority Tax Claims ............................... 19
ARTICLE V
CLASSIFICATION OF CLAIMS AND INTERESTS ................................ 19
ARTICLE VI
PROVISIONS FOR TREATMENT OF PACA CLAIMS (CLASS 1) ..................... 20
6.1 Payment of Allowed PACA Claims ............................... 20
ARTICLE VII
PROVISION FOR TREATMENT OF PRIORITY NON-TAX CLAIMS (CLASS 2) .......... 20
7.1 Payment of Allowed Priority Non-Tax Claims ................... 20
ARTICLE VIII
PROVISION FOR TREATMENT OF SECURED CLAIMS (CLASS 3) ................... 20
8.1 Treatment of Secured Claims .................................. 20
ARTICLE IX
PROVISION FOR TREATMENT OF TRANCHE A LENDER CLAIMS (CLASS 4) .......... 20
9.1 Allowance of Tranche A Lender Claims ......................... 20
9.2 Treatment of Allowed Tranche A Lender Claims ................. 21
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ARTICLE X
PROVISION FOR TREATMENT OF TRANCHE B LENDERCLAIMS (CLASS 5) ........... 21
10.1 Treatment of Tranche B Lender Claims ......................... 21
ARTICLE XI
PROVISION FOR TREATMENT OF SENIOR SECURED NOTEHOLDER CLAIMS
(CLASS 6) ............................................................. 22
11.1 Allowance of Senior Secured Noteholder Claims ................ 22
11.2 Treatment of Senior Secured Noteholder Claims ................ 22
ARTICLE XII
PROVISION FOR TREATMENT OF TRICON CLAIMS (CLASS 7) .................... 24
12.1 Allowance of Tricon Claims ................................... 24
12.2 Non-Recourse Recoveries ...................................... 24
12.3 Proceeds of Post-Confirmation Estate Assets .................. 24
ARTICLE XIII
PROVISIONS FOR CLASSIFICATION AND TREATMENT OF GENERAL UNSECURED
CLAIMS (CLASS 8) ...................................................... 25
13.1 Classification of General Unsecured Claims ................... 25
13.2 Treatment of General Unsecured Claims ........................ 25
ARTICLE XIV
PROVISION FOR TREATMENT OF RECLAMATION CLAIMS (CLASS 9) ............... 26
14.1 Treatment of Reclamation Claims .............................. 26
ARTICLE XV
PROVISION FOR TREATMENT OF NEHC CLAIMS (CLASS 10) ..................... 27
15.1 Treatment of NEHC Claims ..................................... 27
ARTICLE XVI
PROVISION FOR CANCELLATION OF INTERESTS IN DEBTORS (CLASS 11) ......... 27
16.1 Cancellation of Interests .................................... 27
ARTICLE XVII
PROVISIONS FOR IMPLEMENTATION OF THE PLAN ............................. 27
17.1 Sale of Assets ............................................... 27
17.2 Funding of the Plan .......................................... 27
17.3 Tricon Contract Assumption ................................... 29
17.4 Establishment of the Post-Confirmation Estate ................ 29
17.5 Funding Expenses of the Post-Confirmation Estate ............. 29
17.6 Corporate Action ............................................. 30
17.7 Preservation of Rights of Action ............................. 30
17.8 Appointment of Plan Administrator ............................ 36
17.9 Oversight Committee .......................................... 36
17.10 Tricon Funding Performance ................................... 37
17.11 Cancellation of Notes, Instruments, Debentures and Equity
Securities ................................................... 37
17.12 Surrender of Notes ........................................... 38
17.13 Survival of Certain Terms of Indentures ...................... 38
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ARTICLE XVIII
PROVISIONS FOR TREATMENT OF DISPUTED CLAIMS UNDER THE PLAN ............ 38
18.1 Objections to Claims; Prosecution of Disputed Claims ......... 38
18.2 Estimation of Claims ......................................... 39
18.3 Payments and Distributions on Disputed Claims ................ 39
ARTICLE XIX
POST-CONFIRMATION ESTATE; THE PLAN ADMINISTRATOR ...................... 39
19.1 Generally .................................................... 40
19.2 Purpose of the Post-Confirmation Estate ...................... 40
19.3 Transfer of Assets ........................................... 40
19.4 Valuation of Assets .......................................... 40
19.5 Distribution; Withholding .................................... 40
19.6 Post-Confirmation Estate Implementation ...................... 41
19.7 Disputed Claims Reserve ...................................... 41
19.8 Termination of Post-Confirmation Estate ...................... 41
19.9 Termination of Plan Administrator ............................ 42
19.10 Exculpation; Indemnification ................................. 42
ARTICLE XX
ACCEPTANCE OR REJECTION OF PLAN; EFFECT OF REJECTION BY ONE OR MORE
CLASSES OF CLAIMS OR INTEREST ......................................... 43
20.1 Impaired Classes to Vote ..................................... 43
20.2 Acceptance by Class of Creditors and Holders of Interests .... 43
20.3 Cramdown ..................................................... 43
ARTICLE XXI
IDENTIFICATION OF CLAIMS AND INTERESTS IMPAIRED AND NOT IMPAIRED BY
THE PLAN .............................................................. 43
21.1 Impaired and Unimpaired Classes .............................. 43
21.2 Impaired Classes to Vote on Plan ............................. 43
21.3 Controversy Concerning Impairment ............................ 43
ARTICLE XXII
PROVISIONS REGARDING DISTRIBUTIONS .................................... 43
22.1 Manner of Payment under the Plan ............................. 44
22.2 Delivery of Distributions .................................... 44
22.3 Undeliverable Distributions .................................. 44
22.4 Compliance with Tax Requirements/Allocation .................. 44
22.5 Time Bar to Cash Payments .................................... 44
22.6 Distributions after Effective Date ........................... 45
22.7 Fractional Dollars; De Minimis Distributions ................. 45
22.8 Set-Offs ..................................................... 45
22.9 Subordination Rights ......................................... 45
22.10 Settlement of Claims and Controversies ....................... 45
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ARTICLE XXIII
CREDITORS' COMMITTEE .................................................. 46
23.1 Creditors' Committee Composition and Term .................... 46
ARTICLE XXIV
EXECUTORY CONTRACTS AND UNEXPIRED LEASES .............................. 46
24.1 Rejection of Executory Contracts and Unexpired Leases ........ 46
24.2 Cure of Defaults for Assumed Executory Contracts and
Unexpired Leases ............................................. 46
24.3 Rejection Damage Claims ...................................... 47
24.4 Indemnification and Reimbursement Obligations ................ 47
ARTICLE XXV
CONDITIONS PRECEDENT TO CONFIRMATION AND EFFECTIVE DATE OF THE PLAN ... 47
25.1 Conditions Precedent to Confirmation Date of the Plan ........ 48
25.2 Conditions Precedent to Effective Date of the Plan ........... 48
25.3 Waiver of Conditions Precedent ............................... 48
ARTICLE XXVI
RETENTION OF JURISDICTION ............................................. 48
26.1 Retention of Jurisdiction .................................... 48
ARTICLE XXVII
MODIFICATION, REVOCATION, OR WITHDRAWAL OF THE PLAN ................... 50
27.1 Modification of Plan ......................................... 50
27.2 Revocation or Withdrawal ..................................... 50
ARTICLE XXVIII
MISCELLANEOUS PROVISIONS .............................................. 51
28.1 Disallowance of Claims ....................................... 51
28.2 Title to Assets .............................................. 51
28.3 Injunction ................................................... 51
28.4 Injunction as to Tricon, BKC and PepsiCo., Inc. .............. 51
28.5 Term of Existing Injunctions or Stays ........................ 52
28.6 Injunction as to D&O Releasees ............................... 52
28.7 Limited Releases by and of Certain Parties ................... 53
28.8 Exculpation .................................................. 53
28.9 Preservation of Rights of Action ............................. 53
28.10 Surrender of Notes ........................................... 54
28.11 Survival of Certain Terms of Indentures ...................... 54
28.12 Payment of Statutory Fees .................................... 54
28.13 Post-Effective Date Fees and Expenses ........................ 54
28.14 Section 1146 Exception ....................................... 54
28.15 Severability ................................................. 54
28.16 Conflicts .................................................... 54
28.17 Governing Law ................................................ 55
28.18 Notices ...................................................... 55
28.19 Closing of Cases ............................................. 55
28.20 Section Headings ............................................. 56
viii
AmeriServe Food Distribution, Inc., NEBCO EVANS Holding Company,
Holberg Warehouse Properties, Inc., AmeriServe Transportation, Inc., PSD
Transportation Services, Inc., Chicago Consolidated Corporation, ASNSC, Inc.,
Delta Transportation, Ltd., PSC Services of Florida, Inc., Northland
Transportation Services, Inc., ProSource Mexico Holdings, Inc., NAVC Corp.,
North American Vantix Corp., and Vantix Logistics Ltd. hereby propose the
following third amended joint liquidating plan of reorganization pursuant to
sections 1121(a) and (c) and 1123 of the Bankruptcy Code.
ARTICLE I
DEFINITIONS
As used in the Plan, the following terms shall have the respective
meanings specified below and be equally applicable to the singular and plural of
terms defined:
1.1 ADEQUATE PROTECTION AGREEMENTS: Collectively, (i) the Interim
Stipulation and Order Authorizing the Use of Cash Collateral and Granting
Replacement Liens entered in the Chapter 11 Cases on February 2, 2000; (ii) the
Second Interim Stipulation and Order Authorizing the Use of Cash Collateral and
Granting Replacement Liens entered in the Chapter 11 Cases on March 17, 2000;
(iii) the Third Interim Stipulation and Order Authorizing the Use of Cash
Collateral and Granting Replacement Liens entered in the Chapter 11 Cases on
March 24, 2000; (iv) the DIP Financing Order; and (v) the Security Agreement
dated as of February 2, 2000 executed in favor of the Agent by BKC and Tricon
Restaurant Services Group, Inc.
1.2 AD HOC SENIOR SECURED NOTEHOLDER COMMITTEE: Oakhill Securities
Fund, L.P., Oaktree Capital Management, LLC, Conseco Capital Management, Inc.
and Morgens, Waterfall, Vintiadis & Company, Inc.
1.3 AD HOC RECLAMATION COMMITTEE: Kraft Foods, Nestle USA, Inc.,
ConAgra, Inc., Archer Daniels Midland Company, H.J. Heinz Co., General Mills,
Inc., Dean Foods Co., McCormick & Co., J.R. Simplot Co., Diary Farmers of
America, Campbell Soup Co., Ventura Foods LLC, The Pillsbury Co., International
Paper Food Service and Fort James Corporation.
1.4 AD HOC SENIOR SECURED NOTEHOLDER COMMITTEE PROFESSIONAL FEES: The
sum of (i) accrued fees and expenses and (ii) retainers approved by the Ad Hoc
Senior Secured Noteholder Committee which are to be distributed by the Debtors
to the Ad Hoc Senior Secured Noteholder Committee Professionals on the Plan
Effective Date.
1.5 AD HOC SENIOR SECURED NOTEHOLDER COMMITTEE PROFESSIONALS: The
following legal and financial professionals retained by the Ad Hoc Senior
Secured Noteholder Committee in connection with these Chapter 11 Cases: Skadden,
Arps, Slate, Meagher & Flom LLP, Conway Del Genio Gries & Co., LLC and Kasowitz,
Benson, Torres & Friedman LLP.
1.6 ADMINISTRATIVE CLAIMS BAR DATE: October 20, 2000, which is the date
set by the Bankruptcy Court as the last date for timely submission of a proof of
Claim on account of an Administrative Expense Claim.
1.7 ADMINISTRATIVE EXPENSE CLAIM: Any Claim (other than a Tricon Claim)
constituting a cost or expense of administration of the Chapter 11 Cases
asserted under sections 503(b) and 507(a)(1) of the Bankruptcy Code, including,
without limitation, any actual and necessary costs and expenses of preserving
the estates of the Debtors, any actual and necessary costs and expenses of
operating the businesses of the Debtors in Possession, any indebtedness or
obligations incurred or assumed by the Debtors in Possession in connection with
the administration and implementation of the Plan, the administration,
prosecution or defense of Claims by or against the Debtors and for distributions
under the Plan, any Claims for compensation and reimbursement of expenses
arising during the period from and after the Petition Date and prior to the
Effective Date or otherwise in accordance with the provisions of the Plan, any
Professional Compensation and Reimbursement Claims and any fees or charges
assessed against the Debtors' estates pursuant to 28 U.S.C. ss. 1930.
1.8 AFD: AmeriServe Food Distribution, Inc., a Delaware corporation.
1.9 AFD INTEREST: An Interest in AFD.
1.10 AFFILIATE: Any Entity that is an "affiliate" of the Debtors within
the meaning of section 101(2) of the Bankruptcy Code.
1.11 AGENT: Bank of America, N.A., as administrative agent and
collateral agent for the Secured Lenders under the Credit Agreement, its
successors in interest and assigns.
1.12 ALLOWED ADMINISTRATIVE EXPENSE CLAIM: An Administrative Expense
Claim, to the extent it is or has become an Allowed Claim.
1.13 ALLOWED CLAIM/ALLOWED INTEREST: Any Claim against or Interest in
the Debtors, (i) proof of which was filed on or before the date designated by
the Bankruptcy Court as the last date for filing proofs of Claim against or
Interests in the Debtors, (ii) if no proof of Claim or Interest has been timely
filed, which has been or hereafter is listed by the Debtors in their Schedules
as liquidated in amount and not disputed or contingent or (iii) any Interest
registered in the stock register or partnership documents maintained by or on
behalf of the Debtors as of the Record Date and, in each such case in clauses
(i), (ii) and (iii) above, a Claim or Interest as to which no objection to the
allowance thereof has been interposed within the applicable period of limitation
fixed by the Plan, the Bankruptcy Code, the Bankruptcy Rules or a Final Order,
or as to which an objection has been interposed and such Claim or Interest has
been allowed in whole or in part by a Final Order. For purposes of determining
the amount of an "Allowed Claim", there shall be deducted therefrom an amount
equal to the amount of any claim which the Debtors may hold against the holder
thereof, to the extent such claim may be set off pursuant to section 553 of the
Bankruptcy Code.
2
1.14 ALLOWED GENERAL UNSECURED CLAIM: A General Unsecured Claim, to the
extent it is or has become an Allowed Claim.
1.15 ALLOWED NEHC CLAIM: A NEHC Claim, to the extent it is or has
become an Allowed Claim.
1.16 ALLOWED PACA CLAIM: A PACA Claim, to the extent it is or has
become an allowed Claim.
1.17 ALLOWED PRIORITY TAX CLAIM: A Priority Tax Claim, to the extent it
is or has become an Allowed Claim.
1.18 ALLOWED RECLAMATION CLAIM: A Reclamation Claim, to the extent it
is or has become an Allowed Claim.
1.19 ALLOWED SECURED CLAIM: A Secured Claim, to the extent it is or has
become an Allowed Claim.
1.20 ALLOWED SENIOR SECURED NOTEHOLDER CLAIM: A Secured Senior
Noteholder Claim, to the extent it is or has become an Allowed Claim.
1.21 ALLOWED TRANCHE A LENDER CLAIM: A Tranche A Lender Claim, to the
extent it is or has become an Allowed Claim.
1.22 ALLOWED TRANCHE B LENDER CLAIM: A Tranche B Lender Claim, to the
extent it is or has become an Allowed Claim.
1.23 ALLOWED TRICON CLAIM: A Tricon Claim, to the extent it is or has
become an Allowed Claim.
1.24 ALLOWED TRICON UNSECURED CLAIM: A Tricon Unsecured Claim, to the
extent it is or has become an Allowed Claim.
1.25 ALTERNATIVE SALE TRANSACTION: In the event that a higher and
better offer for the assets set forth in the McLane Purchase Agreement is
accepted by the Debtors and approved by the Bankruptcy Court, the sale of
certain of the Debtors' assets through an alternative asset purchase agreement
which shall be consummated on or prior to the Effective Date.
1.26 AMERISERVE CAPITAL: AmeriServe Capital Corporation, a Delaware
corporation.
1.27 ASNSC: ASNSC, Inc., a Delaware corporation.
1.28 ASNSC INTEREST: An Interest in ASNSC.
3
1.29 ATI: AmeriServe Transportation, Inc., a Nebraska corporation.
1.30 ATI INTEREST: An Interest in ATI.
1.31 BAILED INVENTORY: Inventory purchased and owned by the DIP Lenders
(and defined in the DIP Financing Order) that has been entrusted to AFD by the
DIP Lenders.
1.32 BALLOT: The form distributed to each holder of an impaired Claim
on which is to be indicated acceptance or rejection of the Plan.
1.33 BALLOT DATE: November 16, 2000, which is the date set by the
Bankruptcy Court as the last date for timely submission by a Creditor of a
ballot accepting or rejecting the Plan.
1.34 BANKRUPTCY CAUSES OF ACTION: All claims, actions, causes of
action, choses in action, suits, debts, dues, sums of money, accounts,
reckonings, bonds, bills, specialities, covenants, contracts, controversies,
agreements, promises, variances, trespasses, damages, judgments, third-party
claims, counterclaims, and crossclaims (including, but not limited to, all
claims and any avoidance, recovery, subordination or other actions against
insiders and/or any other Entities under the Bankruptcy Code, including sections
506, 510, 542, 543, 544, 545, 547, 548, 549, 500, 551, and 553 of the Bankruptcy
Code or otherwise) of the Debtors, the Debtors in Possession, and/or the Post
Confirmation Estate (including, but not limited to, those actions listed in
Section 17.7 of the Plan) that are or may be pending on the Effective Date or
instituted by the Plan Administrator, on behalf of the Post Confirmation Estate,
after the Effective Date against any Entity, based in law or equity, including,
but not limited to, under the Bankruptcy Code, whether direct, indirect,
derivative, or otherwise and whether asserted or unasserted as of the date of
entry of the Confirmation Order.
1.35 BANKRUPTCY CODE: Title 11 of the United States Code, as applicable
to the Chapter 11 Cases.
1.36 BANKRUPTCY COURT: The United States Bankruptcy Court for the
District of Delaware or such other court having jurisdiction over the Chapter 11
Cases.
1.37 BANKRUPTCY RULES: The Federal Rules of Bankruptcy Procedure, as
promulgated by the United States Supreme Court under 28 U.S.C.ss.2075 and any
Local Rules of the Bankruptcy Court, as amended.
1.38 BASE RESERVE AMOUNT: The projected reserves for payment of Allowed
Administrative Expense Claims (including Professional Compensation and
Reimbursement Claims), Allowed Priority Tax Claims and Allowed Priority Non-Tax
Claims as set forth in the pre-Effective Date budget annexed to the Plan
Supplement as EXHIBIT C.
1.39 BKC: Burger King Corporation, a Florida corporation.
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1.40 BUSINESS DAY: A day other than a Saturday, a Sunday or any other
day on which commercial banks in Dallas, Texas are required or authorized to
close by law or executive order.
1.41 CASH: Lawful currency of the United States of America.
1.42 CASH COLLATERAL STIPULATIONS: Collectively, the Interim
Stipulation and Order Authorizing the Use of Cash Collateral and Granting
Replacement Liens entered by the Bankruptcy Court on February 2, 2000 and the
Final Stipulation and Order Authorizing the Use of Cash Collateral and Granting
Replacement Liens entered by the Bankruptcy Court on April 3, 2000.
1.43 CASH EQUIVALENTS: Equivalents of Cash in the form of readily
marketable securities or instruments issued by a person other than the Debtors,
including, without limitation, readily marketable direct obligations of, or
obligations guaranteed by, the United States of America, commercial paper of
domestic corporations carrying a Moody's Rating of "A" or better, or equivalent
rating of any other nationally recognized rating service, or interest-bearing
certificates of deposit or other similar obligations of domestic banks or other
financial institutions having a shareholders' equity or equivalent capital of
not less than One Hundred Million Dollars ($100,000,000), having maturities of
not more than one (1) year, at the then best generally available rates of
interest for like amounts and like periods.
1.44 CCC: Chicago Consolidated Corporation, an Illinois corporation.
1.45 CCC INTEREST: An Interest in CCC.
1.46 CHAPTER 11 CASES: The cases commenced under chapter 11 of the
Bankruptcy Code by the Debtors on the Petition Date, styled IN RE AMERISERVE
FOOD DISTRIBUTION, INC., Chapter 11 Case No-0358 (PJW), Jointly Administered,
currently pending before the Bankruptcy Court.
1.47 CLAIM: Any right to payment from the Debtors, whether or not such
right is reduced to judgment, liquidated, unliquidated, fixed, contingent,
matured, unmatured, disputed, undisputed, legal, equitable, secured, or
unsecured, known or unknown; or any right to an equitable remedy for breach of
performance if such breach gives rise to a right of payment from the Debtors,
whether or not such right to an equitable remedy is reduced to judgment, fixed,
contingent, matured, unmatured, disputed, undisputed, secured, or unsecured.
1.48 CLASS: A category of holders of Claims or Interests as set forth
in Article V of the Plan.
1.49 COLLATERAL: Any property or interest in property of the estates of
the Debtors that is subject to an unavoidable Lien to secure the payment or
performance of a Claim.
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1.50 COLLATERAL SUPPORT REIMBURSEMENT OBLIGATION: The reimbursement
claim asserted by Tricon against the Debtors for an amount equal to the positive
difference between (i) the aggregate sums paid by Tricon on the Effective Date
to the Debtors and for the benefit of the PACA Claims, the Tranche A Lenders
Claims, the Tranche B Lenders Claims and the Senior Secured Noteholder Claims,
and (ii) the aggregate net proceeds paid to Tricon by the Post-Confirmation
Estate in respect of the Encumbered Residual Assets.
1.51 CONFIRMATION DATE: The date upon which the Clerk of the Bankruptcy
Court has entered the Confirmation Order on the docket in each of the Chapter 11
Cases.
1.52 CONFIRMATION HEARING: The hearing to consider confirmation of the
Plan in accordance with section 1129 of the Bankruptcy Code, as the same may be
adjourned from time to time.
1.53 CONFIRMATION ORDER: The order of the Bankruptcy Court confirming
the Plan in accordance with the provisions of chapter 11 of the Bankruptcy Code.
1.54 CREDIT AGREEMENT: That certain Fifth Amended and Restated Credit
Agreement, dated as of December 8, 1999, by and among AFD, the Agent, the
Tranche A Lenders, the Tranche B Lender, and Finco and any of the documents and
instruments related thereto.
1.55 CREDITOR: Any Entity that has a Claim against the Debtors that
arose or is deemed to have arisen on or prior to the Petition Date, including,
without limitation, a Claim against the Debtors' chapter 11 estates of a kind
specified in sections 348(d), 502(f), 502(g), 502(h) or 502(i) of the Bankruptcy
Code.
1.56 CREDITORS' COMMITTEE: The statutory committee of unsecured
creditors appointed in the Chapter 11 Cases pursuant to section 1102 of the
Bankruptcy Code as constituted from time to time up to the Effective Date.
1.57 CREDITORS' COMMITTEE DESIGNEES: The members of the POC designated
by the Creditors' Committee and their successors appointed pursuant to the
Post-Confirmation Estate Agreement.
1.58 DEBTORS: AmeriServe Food Distribution, Inc., NEBCO EVANS Holding
Company, Holberg Warehouse Properties, Inc., AmeriServe Transportation, Inc.,
PSD Transportation Services, Inc., Chicago Consolidated Corporation, ASNSC,
Inc., Delta Transportation, Ltd., PSC Services of Florida, Inc., Northland
Transportation Services, Inc., ProSource Mexico Holdings, Inc., NAVC Corp.,
North American Vantix Corp. and Vantix Logistics Ltd.
1.59 DEBTORS IN POSSESSION: The Debtors as debtors in possession
pursuant to sections 1107(a) and 1108 of the Bankruptcy Code.
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1.60 DELTA TRANSPORTATION: Delta Transportation, Ltd., a Wisconsin
corporation.
1.61 DELTA TRANSPORTATION INTEREST: An Interest in Delta
Transportation.
1.62 DIP FACILITY: The debtor in possession loan facilities provided to
the Debtors pursuant to the terms of the DIP Financing Order.
1.63 DIP FACILITY CLAIM: The unpaid balance (as agreed to by the
Debtors and Tricon in writing) of the DIP Facility as of the Effective Date.
1.64 DIP FINANCING ORDER: Collectively, the Interim Order Pursuant to
11 U.S.C. ss.ss. 363 and 364 Approving Borrowing, Granting Liens, and
Authorizing Certain Postpetition Transactions entered by the Bankruptcy Court on
February 2, 2000 and the Final Order Pursuant to 11 U.S.C. ss.ss. 363 and 364
Approving Borrowing, Granting Liens, and Authorizing Certain Postpetition
Transactions entered by the Bankruptcy Court on or about March 17, 2000, and any
amendments or modifications thereof.
1.65 DISCLOSURE STATEMENT: The disclosure statement related to the Plan
and approved by the Bankruptcy Court in accordance with section 1125 of the
Bankruptcy Code.
1.66 DISPUTED CLAIM; DISPUTED INTEREST: Any Claim against or Interest
in the Debtors, to the extent the allowance of which is the subject of a timely
objection or request for estimation in accordance with the Plan, the Bankruptcy
Code, the Bankruptcy Rules or the Confirmation Order, or is otherwise disputed
by the Debtors in accordance with applicable law, which objection, request for
estimation or dispute has not been withdrawn or determined by a Final Order.
1.67 DISPUTED CLAIM AMOUNT: The lesser of (a) the amount of a Disputed
Claim as filed with the Bankruptcy Court and (b) if the Bankruptcy Court has
estimated such Disputed Claim pursuant to section 502(c) of the Bankruptcy Code,
the amount of a Disputed Claim as estimated by the Bankruptcy Court; PROVIDED,
HOWEVER, that nothing contained in the Plan is intended to or shall affect any
Entity's rights under section 502(j) of the Bankruptcy Code.
1.68 DISTRIBUTION AGREEMENT: The Amended and Restated Sales and
Distribution Agreement, effective as of November 1, 1998, by and among AFD and
the Tricon Parties, as amended from time to time.
1.69 DLJ: Donaldson, Lufkin & Jenrette, Inc., Donaldson, Lufkin &
Jenrette Securities Corporation, DLJ Capital Funding, Inc., DLJ Merchant
Banking, L.P., DLJ Merchant Banking, L.P. II, each of their affiliates
(including the Tranche B Lender) and each of their predecessors in interest,
successors in interest and assigns.
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1.70 D&O RELEASEES: All officers, directors, employees, financial
advisors, consultants, accountants, attorneys, investment bankers, agents and
representatives of any of the Debtors who served in such capacity on or after
the Petition Date.
1.71 EFFECTIVE DATE: The date selected by the Debtors which is a
Business Day after the Confirmation Date on which all conditions specified in
Section 25.2 of the Plan have been satisfied or waived. When used in the Plan,
Effective Date means on the Effective Date or as soon as reasonably practicable
thereafter.
1.72 8 _% SENIOR UNSECURED NOTES: Those certain senior unsecured notes
due October 15, 2006 issued by AFD in the original aggregate principal amount of
Three Hundred Fifty Million Dollars ($350,000,000) in accordance with the terms
and conditions of the Senior AFD Indenture.
1.73 ENCUMBERED RESIDUAL ASSETS: All assets belonging to the Debtors or
their respective estates existing on or after the Effective Date (and after
giving effect to closing of the Sale Transaction or the Alternative Sale
Transaction) except for (i) Cash on hand on the Effective Date, the Tricon
Funding proceeds and the McLane Proceeds (or the proceeds resulting from an
Alternative Sale Transaction), (ii) Bankruptcy Causes of Action, (iii) assets
sold to McLane in connection with the Sale Transaction or such other purchaser
pursuant to the terms of an Alternative Sale Transaction and (iv) proceeds of
any insurance policies not resulting from the loss or destruction of Encumbered
Residual Assets.
1.74 ENTITY: A Person, a corporation, a general partnership, a limited
partnership, a limited liability company, a limited liability partnership, an
association, a joint stock company, a joint venture, an estate, a trust, an
unincorporated organization, a Governmental Unit or any subdivision thereof or
any other entity.
1.75 EQUITY SECURITY: A (i) share in a corporation, whether or not
denominated "stock", or similar security, (ii) an interest of a limited partner
in a limited partnership, (iii) an interest of a general partner in a general
partnership or (iv) a warrant or right, other than a right to consent, to
purchase, sell, or subscribe to a share, security, or interest of a kind
specified in (i), (ii), (iii), or (iv) of this definition.
1.76 EXCESS TRANSITION COSTS: Cash or Cash Equivalents, if any,
advanced or contributed by Tricon prior to the Effective Date to the Debtors to
fund transition costs and other administrative expenses of the Debtors' estates
that are in excess of the DIP Facility.
1.77 15% SENIOR CONVERTIBLE NOTES: Those certain senior unsecured
convertible notes due December 15, 2008 issued by NEHC to NEDI in the original
aggregate principal amount of Five Million Dollars ($5,000,000).
8
1.78 FINAL ORDER: An order of the Bankruptcy Court or any other court
of competent jurisdiction as to which the time to appeal, petition for
certiorari or move for reargument or rehearing has expired and as to which no
appeal, petition for certiorari or other proceedings for reargument or rehearing
shall then be pending; and if an appeal, writ of certiorari, reargument or
rehearing thereof has been sought, such order shall have been affirmed by the
highest court to which such order was appealed, or certiorari shall have been
denied or reargument or rehearing shall have been denied or resulted in no
modification of such order, and the time to take any further appeal, petition
for certiorari or move for reargument or rehearing shall have expired; PROVIDED,
HOWEVER, that the possibility that a motion under Rule 59 or Rule 60 of the
Federal Rules of Civil Procedure or any analogous rule under the Bankruptcy
Rules, may be but has not then been filed with respect to such order, shall not
cause such order not to be a Final Order.
1.79 FINCO: AmeriServe Finance Trust, a Delaware limited purpose
business trust.
1.80 GENERAL CLAIMS BAR DATE: September 12, 2000, which is the date set
by the Bankruptcy Court as the last date for timely submission of a proof of
Interest or proof of Claim for all Claims other than Administrative Expense
Claims.
1.81 GENERAL UNSECURED CLAIM: An Unsecured Claim, other than an
Intercompany Claim, Reclamation Claim or a NEHC Claim.
1.82 HOLBERG: Holberg Industries, Inc., a Delaware corporation.
1.83 HWPI: Holberg Warehouse Properties, Inc., a Delaware corporation.
1.84 HWPI INTEREST: An Interest in HWPI.
1.85 INTERCOMPANY AFFILIATE: Any of the Debtors other than NEHC and any
direct or indirect subsidiary of AFD.
1.86 INTERCOMPANY CLAIMS: Any Claim held by any Intercompany Affiliate
against any Debtor.
1.87 INTEREST: means any ownership interest in any Debtor, including,
but not limited to, an interest in any issued, unissued, authorized or
outstanding shares or stock and other Equity Security together with any
warrants, options or contractual rights to purchase or acquire such interests at
any time and all rights arising with respect thereto.
1.88 IRC: The Internal Revenue Code of 1986, as amended from time to
time.
1.89 IRS: The Internal Revenue Service, an agency of the United States
Department of the Treasury.
1.90 LIEN: Any charge against or interest in property to secure payment
of a debt or performance of an obligation.
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1.91 MCLANE: McLane Company, Inc., a Texas corporation.
1.92 MCLANE PURCHASE AGREEMENT: That certain Asset Purchase Agreement,
dated as of August 18, 2000, by and among certain of the Debtors and McLane,
together with such amendments and/or modifications to such Agreement made in
accordance with its terms, pursuant to which the Debtors will, as of the
Effective Date, sell and transfer certain assets and assume and assign certain
contracts and leases to McLane, subject to the Debtors' receipt and acceptance
of higher and better offers.
1.93 MCLANE PROCEEDS: The amount of Cash and Cash Equivalents received
by the Debtors prior to and on the Effective Date pursuant to the terms of the
McLane Purchase Agreement.
1.94 NAVC: NAVC Corp., a Nevada corporation.
1.95 NAVC INTEREST: An Interest in NAVC.
1.96 NEDI: NEBCO EVANS Distributors, Inc., a Delaware corporation.
1.97 NEHC CLAIM: A Claim against NEHC.
1.98 NEHC: NEBCO EVANS Holding Company, Inc., a Delaware corporation.
1.99 NEHC INTEREST: An Interest in NEHC.
1.100 NORTH AMERICAN VANTIX: North American Vantix Corp., a Delaware
corporation.
1.101 NORTH AMERICAN VANTIX INTEREST: An Interest in North American
Vantix Corp.
1.102 NTSI: Northland Transportation Services, Inc., a Nebraska
corporation.
1.103 NOTEHOLDER DISTRIBUTION: Defined in Section 11.2 of the Plan.
1.104 NOTEHOLDER PROPORTION: Defined in Section 11.2 of the Plan.
1.105 NTSI INTEREST: An Interest in NTSI.
1.106 PACA ACCOUNT: The account established by the Debtors from which
all distributions to holders of PACA Claims have been and will be satisfied.
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1.107 PACA CASH AMOUNT: $55.5 million, the maximum amount of Cash
necessary to satisfy distributions to holders of PACA Claims.
1.108 PACA CLAIM: A Claim asserted pursuant to the Perishable
Agricultural Commodity Act, 7 U.S.C.ss.499a et seq., the Packers and Stockyards
Act, 7 U.S.C.ss.181 et seq., or state statutes of similar import.
1.109 PARENT GUARANTY: That certain Amended and Restated Secured Parent
Guaranty, dated as of May 21, 1998, by NEHC in favor of the Agent and the
Secured Lenders.
1.110 PARTY IN INTEREST MATRIX: Defined in Section 17.7 of the Plan.
1.111 PERSON: An individual.
1.112 PETITION DATE: January 31, 2000 and February 1, 2000, the dates
on which AFD and the other Debtors, respectively, filed their voluntary
petitions for relief under chapter 11 of the Bankruptcy Code commencing the
Chapter 11 Cases.
1.113 PLAN: The Debtors' Third Amended Joint Liquidating Plan of
Reorganization Pursuant to Chapter 11 of the Bankruptcy Code, including, without
limitation, any exhibits and schedules hereto and the Plan Supplement, either in
its present form or as the same may be amended, modified or supplemented from
time to time in accordance with the terms and provisions hereof.
1.114 PLAN ADMINISTRATOR: The Person to be designated by the Debtors
and retained, as of the Effective Date, by the Post-Confirmation Estate as set
forth in the Post-Confirmation Estate Agreement, with the approval of the
Bankruptcy Court, as the employee or fiduciary responsible for, among other
things, the matters described in Article XIX hereof.
1.115 PLAN SUPPLEMENT: A separate volume, to be filed with the Clerk of
the Bankruptcy Court, containing, among other things, the Post-Confirmation
Estate Agreement, the Party in Interest Matrix, the Pre-Effective Date budget
and the Post-Effective Date Administrative Expense Budget. The Plan Supplement
(containing drafts or final versions of the foregoing documents) shall be filed
with the Clerk of the Bankruptcy Court as early as practicable (but in no event
later than ten (10) days) prior to the commencement of the hearing to consider
confirmation of the Plan, or on such other date as the Bankruptcy Court may
establish. Any drafts contained in the Plan Supplement may be superseded by
final versions that are filed with the Bankruptcy Court on December 8, 2000.
1.116 POC: The Post-Confirmation Estate Oversight Committee, created
pursuant to the terms of the Post-Confirmation Estate Agreement.
1.117 POST-CONFIRMATION ADMINISTRATIVE EXPENSE ADVANCES: Cash advanced
or contributed by Tricon to the Debtors or the Post-Confirmation Estate
subsequent to the Effective Date to fund administrative expenses of the Debtors,
the Post Confirmation Estate or the Plan Administrator that are not directly
related to recoveries on the Encumbered Residual Assets and that are in addition
to amounts to be funded by Tricon in accordance with the Post-Effective Date
Administrative Expense Budget.
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1.118 POST-EFFECTIVE DATE ADMINISTRATIVE EXPENSE BUDGET: The budget for
wind-down expenses (exclusive of the $5 million litigation fund) projected to be
incurred by the Post-Confirmation Estate, which budget shall be agreed upon by
the Debtors, Tricon and the Creditors' Committee and annexed as EXHIBIT D to the
Plan Supplement.
1.119 POST-CONFIRMATION ESTATE: The trust to be created on the
Effective Date in accordance with the provisions of Articles XVII and XIX of the
Plan and the Post-Confirmation Estate Agreement for the benefit of holders of
certain Allowed Claims.
1.120 POST-CONFIRMATION ESTATE AGREEMENT: The trust agreement,
substantially in the form attached as EXHIBIT A to the Plan Supplement, that
documents the Post-Confirmation Estate, describes the powers, duties and
responsibilities of the Plan Administrator and the liquidation and distribution
of proceeds of the Post-Confirmation Estate Assets.
1.121 POST-CONFIRMATION ESTATE ASSETS: All assets of all of the
Debtors' chapter 11 estates remaining after the consummation of the Sale
Transaction or the Alternative Sale Transaction (including without limitation,
any and all rights to any insurance recoveries and any and all rights relating
to insurance policies or proceeds thereof); provided that the reserves for
Allowed Administrative Claims and Allowed Priority Claims shall be properly
administered by the Post-Confirmation Estate as agent for the Holders of such
Claims and any excess reserves shall constitute Post-Confirmation Estate Assets.
1.122 PRIORITY NON-TAX CLAIM: Any Claim against the Debtors, other than
an Administrative Expense Claim, a Tricon Claim or a Priority Tax Claim,
entitled to priority in payment under section 507(a) of the Bankruptcy Code, but
only to the extent entitled to such priority.
1.123 PRIORITY TAX CLAIM: Any Claim against the Debtors entitled to
priority in payment under section 507(a)(8) of the Bankruptcy Code, but only to
the extent entitled to such priority.
1.124 PROFESSIONAL COMPENSATION AND REIMBURSEMENT CLAIMS: Any Claim in
the Chapter 11 Cases entitled to payment in accordance with section 330 or 331
of the Bankruptcy Code or entitled to priority in payment under section
503(b)(2), 503(b)(3), 503(b)(4) or 503(b)(5) of the Bankruptcy Code.
1.125 PRO RATA SHARE: With respect to Allowed Claims within the same
Class, the proportion that an Allowed Claim bears to the sum of (a) all Allowed
Claims within such Class and (b) all Disputed Claim Amounts within such Class.
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1.126 PROSOURCE MEXICO: ProSource Mexico Holdings, Inc., a Delaware
corporation.
1.127 PROSOURCE MEXICO INTEREST: An Interest in ProSource Mexico.
1.128 PSC SERVICES: PSC Services of Florida, a Delaware corporation.
1.129 PSC SERVICES INTEREST: An Interest in PSC Services.
1.130 PSD TRANSPORTATION: PSD Transportation Services, Inc., a Nevada
corporation.
1.131 PSD TRANSPORTATION INTEREST: An Interest in PSD Transportation.
1.132 RECLAMATION CLAIM: Any unpaid Claim arising out of a vendor sale
and delivery of goods to the Debtors prior to the Petition Date and in the
ordinary course of such vendor's business, as to which goods the vendors
demanded in writing reclamation within 10 days after receipt of such goods by
Debtors (or, if such 10-day period expired after the Petition Date, before 20
days after the receipt of such goods by the Debtors), and, at the time
reclamation was demanded, the Debtors had such goods in their possession with
respect to which the vendor would have been entitled to relief under section
546(c) of the Bankruptcy Code if the Debtors had been insolvent at the time of
delivery of such goods; provided however, that the treatment of Reclamation
Claims in the Plan shall not be deemed an admission of the insolvency of the
Debtors or evidence thereof.
1.133 RECLAMATION COMMITTEE DESIGNEE: The member of the POC designated
by the Ad Hoc Reclamation Committee and such designee's successor appointed
pursuant to the Post-Confirmation Estate Agreement, it being understood that an
alternate designee may be designated by such Committee to serve in the
Reclamation Committee Designee's absence, and such alternate shall be treated
for all purposes while so serving as the Reclamation Committee Designee.
1.134 RECORD DATE: October 20, 2000, which is the date to be
established by the Bankruptcy Court in the Confirmation Order for the purpose of
determining those holders of Allowed Claims that can receive distributions
pursuant to the Plan.
1.135 REPLACEMENT COLLATERAL: (a) postpetition inventory owned and
postpetition receivables owned by the Debtors, (b) Cash on deposit in the Cash
Collateral Account (as defined in the DIP Financing Order), (c) Bailed Inventory
and (d) receivables generated by the sale of Bailed Inventory and proceeds
thereof.
1.136 REPLACEMENT COLLATERAL OBLIGATIONS: Obligations of the DIP
Lenders to provide Replacement Collateral pursuant to the terms of the Cash
Collateral Stipulations and the Security Agreement (as defined in the Adequate
Protection Agreements).
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1.137 SALE TRANSACTION: The sale of certain of the Debtors' property
rights pursuant to the McLane Purchase Agreement which sale shall be consummated
on or prior to the Effective Date.
1.138 SATISFACTION EVENT: The occurrence of both (i) the distribution
to Tricon of Cash, other than proceeds of Encumbered Residual Assets, in an
amount equal to the sum of (a) Two Hundred Twenty Million Dollars
($220,000,000), (b) the aggregate amounts advanced by Tricon to fund priority
claim reserves in excess of the Base Reserve Amount, (c) amounts advanced by
Tricon to fund Post-Confirmation Administrative Expense Advances and (d) that
part of the Five Million Dollar ($5,000,000) litigation expense advance actually
funded by Tricon, and (ii) the termination of any commitment by Tricon to extend
further advances to the Debtors, the Plan Administrator or the Post-Confirmation
Estate.
1.139 SCHEDULES: The respective schedules of assets and liabilities,
the list of Interests, and the statements of financial affairs filed by the
Debtors in accordance with section 521 of the Bankruptcy Code and the Official
Bankruptcy Forms of the Bankruptcy Rules as such schedules and statements have
been or may be supplemented or amended.
1.140 SECURED CLAIM: A Claim against the Debtors, other than a Secured
Lender Claim, that is secured by a Lien on Collateral or that is subject to
setoff under section 553 of the Bankruptcy Code, to the extent of the value of
the Collateral or to the extent of the amount subject to setoff, as applicable,
as determined in accordance with section 506(a) of the Bankruptcy Code.
1.141 SECURED LENDER CAUSES OF ACTION: Claims, counterclaims, rights,
defenses and remedies (whether now existing or hereafter arising and whether at
law or in equity) against Bank of America Securities L.L.C. and/or any one or
more of the Tranche B Lender and the Senior Secured Noteholders (including,
without limitation, each of Bank of America Securities L.L.C.'s and each of the
Tranche B Lenders' and each Senior Secured Noteholder's predecessors in
interest, successors in interest and assigns), including, without limitation,
the following: (a) all Bankruptcy Causes of Action; (b) the actions of Bank of
America Securities L.L.C. (and its affiliates) in its capacity as underwriter of
any of the Debtors' securities; and (c) the actions of DLJ in any matters
involving, affecting or influencing the Debtors.
1.142 SECURED LENDER CLAIMS: Any Claims of the Secured Lenders, the
Agent or the Senior Secured Indenture Trustee arising from or related to (i) the
Credit Agreement, including, without limitation, fees and expenses associated
with rights and remedies thereunder, (ii) the Parent Guaranty and (iii) the
Subsidiary Guaranty.
1.143 SECURED LENDERS: The Tranche A Lenders, the Tranche B Lender,
Finco and the Senior Secured Noteholders and each of their successors and
assigns.
1.144 SENIOR AFD INDENTURE: That certain indenture, dated as of October
15, 1997, between AFD, the Subsidiary Guarantors and the Senior AFD Indenture
Trustee, as may have been supplemented from time to time.
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1.145 SENIOR AFD INDENTURE TRUSTEE: U.S. Bank National Association,
successor to State Street Bank and Trust Company.
1.146 SENIOR SECURED INDENTURE: That certain indenture, dated as of
October 1, 1999, between Finco, AmeriServe Capital, NEDI and the Senior Secured
Indenture Trustee, as may have been supplemented from time to time.
1.147 SENIOR SECURED INDENTURE TRUSTEE: United States Trust Company of
New York.
1.148 SENIOR SECURED LOAN: The loan made by Finco to AFD in the amount
of Two Hundred Million Two Hundred Ninety Seven Thousand Three Hundred Dollars
($200,297,300) under the Credit Agreement.
1.149 SENIOR SECURED NOTEHOLDERS: The holders of the Senior Secured
Notes.
1.150 SENIOR SECURED NOTEHOLDER CLAIMS: The Secured Lender Claims of
the Senior Secured Noteholders, the Senior Secured Indenture Trustee and the
Agent in its capacity as agent for Finco and the Senior Secured Indenture
Trustee, as successor to Finco's rights under the Credit Agreement.
1.151 SENIOR SECURED NOTEHOLDER PROCEEDS: The distribution(s) from the
Post-Confirmation Estate to holders of Allowed Senior Secured Noteholder Claims.
1.152 SENIOR SECURED NOTES: The 12% senior secured notes issued by
Finco and AmeriServe Capital in the amount of Two Hundred Five Million Dollars
($205,000,000) due September 15, 2006 pursuant to the terms of the Senior
Secured Indenture and guaranteed by NEDI.
1.153 SUBORDINATED AFD INDENTURE: That certain indenture, dated as of
July 11, 1997, between AFD, the Subsidiary Guarantors, and the Subordinated AFD
Indenture Trustee, as may have been supplemented from time to time.
1.154 SUBORDINATED AFD INDENTURE TRUSTEE: State Street Bank and Trust
Company.
1.155 SUBORDINATED NEHC INDENTURE: That certain indenture, dated as of
July 11, 1997, between NEHC and the Subordinated NEHC Indenture Trustee as may
have been supplemented from time to time.
1.156 SUBORDINATED NEHC INDENTURE TRUSTEE: HSBC Bank USA, successor to
State Street Bank and Trust Company.
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1.157 SUBSIDIARY GUARANTY: That certain Second Amended and Restated
Secured Guaranty Agreement, dated as of May 21, 1998, by CCC, Delta
Transportation, NTSI, PSC Services, PSD Transportation, ATI and ASNSC in favor
of the Agent and the Secured Lenders.
1.158 10% SENIOR SUBORDINATED NOTES: Those certain senior unsecured
subordinated notes due July 15, 2007 issued by AFD in the original aggregate
principal amount of Five Hundred Million Dollars ($500,000,000) in accordance
with the terms and conditions of the Subordinated AFD Indenture.
1.159 13% JUNIOR SUBORDINATED NOTES: Those certain junior subordinated
notes due December 15, 2008 issued by AFD to Holberg in the amount of Fifteen
Million Dollars ($15,000,000).
1.160 13 1/4% SENIOR UNSECURED NOTES: Those certain senior unsecured
notes due December 8, 2000 issued by AFD to Tricon in the amount of Fifteen
Million Dollars ($15,000,000).
1.161 TRANCHE A LENDER CLAIMS: The Secured Lender Claims of the Agent,
in its capacity as agent for the Tranche A Lenders, and the Tranche A Lenders.
1.162 TRANCHE A LENDERS: The banks or financial institutions that are
parties to the Credit Agreement and identified therein as "Tranche A Revolving
Lenders", including the Agent in its capacity as a "Tranche A Revolving Lender",
under the Credit Agreement and each of their successors and assigns.
1.163 TRANCHE B INTEREST: Defined in Section 10.1 of the Plan.
1.164 TRANCHE B LENDER: Food Distribution Funding, Inc. and its
successors and assigns.
1.165 TRANCHE B LENDER CLAIMS: The Secured Lender Claims of the Agent,
in its capacity as agent for the Tranche B Lender, and the Tranche B Lender.
1.166 TRANCHE B RECOVERY: Any recovery or consideration from the
Tranche B Lenders or on account of the Tranche B Claims for any claims held by
the Senior Secured Noteholders (i.e., any claim held by any single Senior
Secured Noteholders or claims by many or all of the Senior Secured Noteholders
as members of one or more classes) except as Tricon may otherwise agree.
1.167 TRANCHE B RESERVE: Defined in Section 10.1 of the Plan.
1.168 TRICON: Collectively, Tricon Global Restaurants, Inc. and, as of
the Petition Date, those affiliates specified on SCHEDULE 1.168 to the Plan
other than any such affiliates that were or are franchisees in the Tricon
system.
16
1.169 TRICON CLAIMS: All Claims of Tricon which Tricon asserts are
entitled to treatment other than as an Unsecured Claim, including the following:
(i) the DIP Facility Claim, (ii) the Tricon Reimbursement Claim, (iii) the
Collateral Support Reimbursement Obligations, (iv) the Excess Transition Costs
(if any) and (v) the Post-Confirmation Administrative Expense Advances.
1.170 TRICON DESIGNEE: The member of the POC designated by Tricon and
such designee's successor appointed pursuant to the Post-Confirmation Estate
Agreement.
1.171 TRICON FUNDING: Defined in Section 17.2(b) of the Plan.
1.172 TRICON PARTIES: Tricon Global Restaurants, Inc., Pizza Hut, Inc.,
Taco Bell Corp., Kentucky Fried Chicken Corporation and Kentucky Fried Chicken
of California, Inc. (n/k/a Kentucky Fried Chicken of Southern California, Inc.).
1.173 TRICON PREPETITION RECEIVABLE: The prepetition accounts
receivable owed by Tricon (subject to asserted defenses) to the Debtors in the
approximate amount of One Hundred One Million Dollars ($101,000,000).
1.174 TRICON REIMBURSEMENT CLAIM: The Debtors' obligation to reimburse
Tricon for proceeds of Tricon-owned postpetition receivables that were paid to
parties other than Tricon.
1.175 12 _% SENIOR DISCOUNT NOTES: Those certain senior unsecured
discount notes due July 15, 2007, issued by NEHC in the original aggregate
principal amount of One Hundred Million Three Hundred Eighty Seven Thousand
Dollars ($100,387,000) in accordance with the terms and conditions of the
Subordinated NEHC Indenture.
1.176 UNKNOWN CAUSES OF ACTION: Defined in Section 17.7 of the Plan.
1.177 UNSECURED CLAIM: Any Claim against any of the Debtors (including,
without limitation, any Reclamation Claim and any Claim relating to the
Unsecured Notes, the Senior AFD Indenture, the Subordinated AFD Indenture and
the NEHC Indenture), other than an Administrative Expense Claim, a PACA Claim, a
Priority Non-Tax Claim, a Priority Tax Claim, a Secured Claim, a Secured Lender
Claim (including Tranche A Lender Claims, Tranche B Lender Claims and Senior
Secured Noteholder Claims) or a Tricon Claim.
1.178 UNSECURED NOTES: Collectively, the 8 7/8% Senior Unsecured Notes,
the 15% Senior Convertible Notes, the 10 1/8% Senior Subordinated Notes, the 13%
Junior Subordinated Notes, and the 13 1/4% Senior Unsecured Notes.
1.179 VANTIX LOGISTICS: Vantix Logistics, Ltd., a Texas limited
partnership.
1.180 VANTIX LOGISTICS INTEREST: An Interest in Vantix Logistics.
17
1.181 OTHER DEFINITIONS: Unless the context otherwise requires, any
capitalized term used and not defined herein or elsewhere in the Plan but that
is defined in the Bankruptcy Code shall have the meaning assigned to that term
in the Bankruptcy Code. Unless otherwise specified, all section, schedule or
exhibit references in the Plan are to the respective section in, article of, or
schedule or exhibit to, the Plan, as the same may be amended, waived, or
modified from time to time. The words "herein," "hereof," "hereto," "hereunder,"
and other words of similar import refer to the Plan as a whole and not to any
particular section, subsection, or clause contained in the Plan.
ARTICLE II
COMPROMISE AND SETTLEMENT OF DISPUTES;
ASSUMPTION OF OBLIGATIONS UNDER THE PLAN
2.1 COMPROMISE AND SETTLEMENT: The Plan incorporates proposed
compromises and settlements (i) among the Debtors, Tricon and the Senior Secured
Noteholders and (ii) among the Debtors, Tricon and holders of Unsecured Claims,
including holders of Reclamation Claims, which are an integral part of the Plan.
The treatment of Claims in Classes 4, 5, 6, 7, 8 and 9 reflect these compromises
and settlements, which, upon the Effective Date, shall be binding upon the
Debtors, all Creditors, and all Entities receiving any payments or other
distributions under the Plan. The compromises and settlements are more fully
described in the Disclosure Statement.
ARTICLE III
SUBSTANTIVE CONSOLIDATION OF DEBTORS;
CANCELLATION OF INTERCOMPANY CLAIMS
3.1 SUBSTANTIVE CONSOLIDATION: On the Effective Date, the Chapter 11
Cases (other than the Chapter 11 Case of NEHC) shall be deemed to be
substantively consolidated for all purposes of the Plan. The assets and
liabilities of the Debtors (other than NEHC) shall be pooled and all Claims
shall be satisfied from the assets of a single consolidated estate. Any Claims
against one or more of the Debtors based upon a guaranty, indemnity,
co-signature, surety or otherwise, of Claims against another Debtor, including,
without limitation, the Parent Guaranty and the Subsidiary Guaranty, shall be
treated as a single Claim against the consolidated estates of the Debtors and
shall be entitled to distributions under the Plan only with respect to such
single Claim.
3.2 CANCELLATION OF INTERCOMPANY CLAIMS: On the Effective Date, all
Intercompany Claims shall be extinguished.
ARTICLE IV
PROVISIONS FOR PAYMENT OF ADMINISTRATIVE EXPENSE
CLAIMS AND PRIORITY TAX CLAIMS
4.1 ADMINISTRATIVE EXPENSE CLAIMS: On the later to occur of (a) the
Effective Date and (b) the date on which such Claim shall become an Allowed
Claim, the Debtors or the
18
Post-Confirmation Estate, as applicable, shall (i) pay to each holder of an
Allowed Administrative Expense Claim, in Cash, the full amount of such Allowed
Administrative Expense Claim, or (ii) satisfy and discharge such Allowed
Administrative Expense Claim in accordance with such other terms as may be
agreed upon by and between the holder thereof and the Debtors or the
Post-Confirmation Estate, as the case may be. On the Effective Date, there shall
be escrowed all estimated amounts relating to the Professional Compensation and
Reimbursement Claims (including all potential success fees) accrued and unpaid
through the Confirmation Date pending entry of a Final Order on each such
professional's fee applications in addition to any other success fees or change
of control fees owing by the Debtors.
4.2 PAYMENT OF PRIORITY TAX CLAIMS: On the Effective Date, each holder
of an Allowed Priority Tax Claim shall be entitled to receive distributions in
an amount equal to the full amount of such Allowed Priority Tax Claim. At the
sole option and discretion of the Debtors or the Post-Confirmation Estate, such
payment shall be made (a) in full, in Cash, on the Effective Date, (b) in
accordance with section 1129(a)(9)(C) of the Bankruptcy Code, in full, in Cash,
in up to twenty-four (24) equal quarterly installments, commencing on the first
(1st) Business Day following the date of assessment of such Allowed Priority Tax
Claim, together with interest accrued thereon at a rate to be determined by the
Bankruptcy Court, or (c) by mutual agreement of the holder of such Allowed
Priority Tax Claim and the Debtors or the Post-Confirmation Estate.
ARTICLE V
CLASSIFICATION OF CLAIMS AND INTERESTS
- ------------------ -------------------------------------------- ----------------------- ----------------------------
CLASS CLAIM STATUS VOTING RIGHTS
- ------------------ -------------------------------------------- ----------------------- ----------------------------
1 PACA Claims Unimpaired Not entitled to vote
- ------------------ -------------------------------------------- ----------------------- ----------------------------
2 Priority Non-Tax Claims Unimpaired Not entitled to vote
- ------------------ -------------------------------------------- ----------------------- ----------------------------
3 Secured Claims Unimpaired Not entitled to vote
- ------------------ -------------------------------------------- ----------------------- ----------------------------
4 Tranche A Lender Claims Impaired Entitled to vote
- ------------------ -------------------------------------------- ----------------------- ----------------------------
5 Tranche B Lender Claims Unimpaired Not entitled to vote
- ------------------ -------------------------------------------- ----------------------- ----------------------------
6 Senior Secured Noteholder Claims Impaired Entitled to vote
- ------------------ -------------------------------------------- ----------------------- ----------------------------
7 Tricon Claims Impaired Entitled to vote
- ------------------ -------------------------------------------- ----------------------- ----------------------------
8 General Unsecured Claims
- ------------------ -------------------------------------------- ----------------------- ----------------------------
8A Claims Arising Under Senior AFD Indenture Impaired Entitled to vote
- ------------------ -------------------------------------------- ----------------------- ----------------------------
8B Claims Arising Under Subordinated AFD Impaired Entitled to vote
Indenture
- ------------------ -------------------------------------------- ----------------------- ----------------------------
8C General Unsecured Claims of Senior Secured Impaired Entitled to vote
Noteholders
- ------------------ -------------------------------------------- ----------------------- ----------------------------
8D All Other General Unsecured Claims Impaired Entitled to vote
- ------------------ -------------------------------------------- ----------------------- ----------------------------
9 Reclamation Claims Impaired Entitled to vote
- ------------------ -------------------------------------------- ----------------------- ----------------------------
10 NEHC Claims Impaired Entitled to vote
- ------------------ -------------------------------------------- ----------------------- ----------------------------
11 Equity Interests Impaired Not entitled to vote
- ------------------ -------------------------------------------- ----------------------- ----------------------------
19
ARTICLE VI
PROVISIONS FOR TREATMENT OF PACA CLAIMS (CLASS 1)
6.1 PAYMENT OF ALLOWED PACA CLAIMS: Each holder of an Allowed PACA
Claim shall be paid the full amount of its Allowed PACA Claim in Cash from the
PACA Account as soon as practicable following the later of (a) the Effective
Date, (b) the date each PACA Claim becomes an Allowed PACA Claim and (c) such
other date as may be agreed upon by the Debtors or the Post-Confirmation Estate
and the holder of the Allowed PACA Claim. Such payment is in full satisfaction
of all claims of PACA Claimants, including Claims assertable against the Debtors
and any claims assertable against non-Debtors.
ARTICLE VII
PROVISION FOR TREATMENT OF PRIORITY NON-TAX
CLAIMS (CLASS 2)
7.1 PAYMENT OF ALLOWED PRIORITY NON-TAX CLAIMS: Unless otherwise
mutually agreed upon by the holder of an Allowed Priority Non-Tax Claim and the
Debtors or the Post-Confirmation Estate, each holder of an Allowed Priority
Non-Tax Claim shall be paid in full, in Cash, in an amount equal to such Allowed
Priority Non-Tax Claim on the later of the Effective Date and the date such
Allowed Priority Non-Tax Claim becomes an Allowed Priority Non-Tax Claim, or as
soon thereafter as is practicable. The Tricon Claims will be treated in
accordance with Article XII of the Plan.
ARTICLE VIII
PROVISION FOR TREATMENT OF SECURED
CLAIMS (CLASS 3)
8.1 TREATMENT OF SECURED CLAIMS: On the Effective Date, or as soon
thereafter as is practicable, each holder of an Allowed Secured Claim shall
receive one of the following distributions: (a) the payment of such holder's
Allowed Secured Claim in full, in Cash; (b) the sale or disposition proceeds of
the property securing any Allowed Secured Claim to the extent of the value of
their respective interests in such property; (c) the surrender to the holder or
holders
20
of any Allowed Secured Claim of the property securing such Claim; or (d) such
other distributions as shall be necessary to satisfy the requirements of chapter
11 of the Bankruptcy Code. The manner and treatment of each Allowed Secured
Claim shall be determined by the Debtors, in their sole and absolute discretion,
on or before the Confirmation Date, and upon notice to each Creditor holding a
Secured Claim.
ARTICLE IX
PROVISION FOR TREATMENT OF TRANCHE A LENDER
CLAIMS (CLASS 4)
9.1 ALLOWANCE OF TRANCHE A LENDER CLAIMS: The Tranche A Lender Claims
shall be deemed allowed in the amount of (y) the sum of (i) One Hundred Twenty
Two Million Four Hundred Thousand Dollars ($122,400,000), (ii) all reasonable
fees, costs and expenses incurred by the Tranche A Lenders as agreed to by the
Tranche A Lenders and the Post-Confirmation Estate or the Debtors (or, if no
such agreement is reached, then as determined by the Bankruptcy Court) and (iii)
accrued interest on the unpaid principal balance owed to the Tranche A Lenders
at the non-default contract rate relating to the period up to but not including
the Effective Date (it being understood that the Debtors (and, therefore, the
Post-Confirmation Estate) reserve their right to contest the allocation to
interest, fees and/or principal made by the Tranche A Lenders) minus (z) all
amounts paid to the Agent and the Tranche A Lenders on or after the Petition
Date on account of their Claims. Notwithstanding the allowance provided above,
the Debtors (and, therefore, the Post-Confirmation Estate) expressly reserve any
and all Secured Lender Causes of Action against, among others, Bank of America
Securities L.L.C.
9.2 TREATMENT OF ALLOWED TRANCHE A LENDER CLAIMS: On the Effective
Date, each holder of an Allowed Tranche A Lender Claim shall receive the payment
of such holder's Pro Rata Share of Cash in an amount equal to the Allowed
Tranche A Lender Claims; PROVIDED, HOWEVER, that on the Effective Date, the
Debtors shall deposit Cash into a reserve account (the "Tranche A Reserve") in
an amount equal to the unpaid professional fees asserted by the Tranche A
Lenders pending the allowance of such fee claims pursuant to section 506 of the
Bankruptcy Code. The distributions to the Tranche A Lenders on the Effective
Date and the funding of the Tranche A Reserve shall constitute a full
satisfaction of any Claims held by the Tranche A Lenders, and shall fully
satisfy any Claims assertable by the Tranche A Lenders (or the Agent acting on
behalf of the Tranche A Lenders) in respect of the Replacement Collateral
Obligations or the Tricon Prepetition Receivable.
21
ARTICLE X
PROVISION FOR TREATMENT OF TRANCHE B LENDER
CLAIMS (CLASS 5)
10.1 TREATMENT OF TRANCHE B LENDER CLAIMS: On the Effective Date, the
Debtors shall deposit Cash into a reserve account (the "Tranche B Reserve") for
the benefit of the Tranche B Lenders in an amount equal to One Hundred Million
Dollars ($100,000,000) plus unpaid interest at the default contract rate
relating to the period up to but not including the Effective Date (the "Tranche
B Interest"). The Tranche B Lender Claims shall be paid from the Tranche B
Reserve when and to the extent such Claims become Allowed Tranche B Lender
Claims by Final Order of the Bankruptcy Court. The funding of the Tranche B
Reserve shall constitute a full satisfaction of any Claims held by the Tranche B
Lenders, and shall fully satisfy any Claim assertable by the Tranche B Lenders
(or the Agent acting on behalf of the Tranche B Lenders) in respect of the
Replacement Collateral Obligations or the Tricon Prepetition Receivable. The
Debtors (and, therefore, the Post-Confirmation Estate) expressly reserve any and
all Secured Lender Causes of Action as they may pertain to the Tranche B Lender.
In the event that all or a portion of the Tranche B Lender Claims are disallowed
or subordinated to other rights of other Creditors, the portion of the Tranche B
Reserve proceeds that are so disallowed or subordinated will be distributed in
accordance with the Final Order disallowing or subordinating such Claims.
Beginning on or about the Effective Date, Cash in the Tranche B Reserve
(i.e., the approximately One Hundred Fifteen Million Dollars ($115,000,000) in
Cash that is being set aside by the Debtors on account of the Tranche B Lender
Claims) will accrue interest at a rate per annum equal to the 3 month Treasury
Bill rate in effect on the Effective Date as reflected in THE WALL STREET
JOURNAL, National Edition, and reset at three month intervals thereafter until
the Cash in the Tranche B Reserve is distributed by order of the Bankruptcy
Court. Notwithstanding any other provision of the Plan to the contrary, such
interest will be available to pay costs, fees and post-Effective Date interest
on the Tranche B Lender Claims, if such costs fees and interest become Allowed
Tranche B Lender Claims, pro rated to the extent that the Tranche B Lender
Claims become Allowed Tranche B Lender Claims.
ARTICLE XI
PROVISION FOR TREATMENT OF
SENIOR SECURED NOTEHOLDER CLAIMS (CLASS 6)
11.1 ALLOWANCE OF SENIOR SECURED NOTEHOLDER CLAIMS: The Senior Secured
Noteholder Claims shall be deemed allowed in the amount of the sum of (i) Two
Hundred Million Two Hundred Ninety Seven Thousand Three Hundred Dollars
($200,297,300), and (ii) accrued and unpaid interest at the nondefault contract
rate of 12% per annum relating to the period up to but not including the
Petition Date.
11.2 TREATMENT OF SENIOR SECURED NOTEHOLDER CLAIMS: On the Effective
Date, the Debtors will distribute (a) to the Senior Secured Indenture Trustee,
Cash in an amount equal
22
to 32.5% of the face amount (i.e. $205 million) of the Senior Secured Noteholder
Claims MINUS the sum of (i) 50% of the Tranche B Interest (such percentage, the
"Noteholder Proportion"), and (ii) the Ad Hoc Senior Secured Noteholder
Committee Professional Fees, and (b) to the Ad Hoc Senior Secured Noteholder
Committee Professionals, the Ad Hoc Senior Secured Noteholder Committee
Professional Fees.
The Senior Secured Indenture Trustee shall distribute to the Senior
Secured Noteholders their Pro Rata Share after making all necessary adjustments
for payments previously paid by members of the Ad Hoc Senior Secured Noteholder
Committee to the Ad Hoc Senior Secured Noteholder Committee Professionals.
Subsequent to the Effective Date, but no less than every ninety (90) days
following the Effective Date, the amount of Cash in the PACA Account equal to
the amount of all PACA Claims that are disallowed or reduced by order of the
Bankruptcy Court during such ninety (90) day period shall be distributed as
follows: First, to Tricon until Tricon has been repaid an amount that is equal
to the difference between (i) the amounts on deposit in or deposited into the
PACA Account on the Effective Date plus the aggregate distributions made to PACA
Claimants prior to the Effective Date minus (ii) $53 million; and second, to the
Senior Secured Indenture Trustee for the benefit of (and for pro rata
distribution to) the Senior Secured Noteholders (net of the amount of any
outstanding Ad Hoc Senior Secured Noteholder Committee Professional Fees which
amount shall first be paid to such professionals). In no event shall the Senior
Secured Noteholders have any obligation to fund the PACA Claims.
In addition, the Noteholder Proportion shall be refunded to the Senior
Secured Noteholders on the following terms: (i) if and to the extent that the
Tranche B Lender Claims relating to Tranche B Interest are disallowed by a Final
Order, the Senior Secured Noteholders shall be entitled to receive the
Noteholder Proportion; (ii) if Tranche B Lender Claims as to Tranche B Interest
are allowed and (x) there is no Tranche B Recovery, then no later than five (5)
days following the entry of a Final Order determining claims relating to the
Tranche B Recovery, the Senior Secured Noteholders shall receive a refund from
Tricon in an amount equal to the Noteholder Proportion; (y) if there is a
Tranche B Recovery and it is equal to or greater than the Noteholder Proportion,
then the Senior Secured Noteholders shall not be entitled to any refund of the
Noteholder Proportion; and (z) if there is a Tranche B Recovery and it is less
than the Noteholder Proportion, then no later than five (5) days following the
entry of a Final Order determining claims relating to the Tranche B Recovery,
the Senior Secured Noteholders shall receive a refund of the difference between
such Tranche B Recovery and the remaining Noteholder Proportion. Any refund of
the Noteholder Proportion shall be paid to the Senior Secured Indenture Trustee
for pro rata distribution to the Senior Secured Noteholders, except that, in
calculating a Senior Secured Noteholder's Pro Rata Share of such refund, the
Senior Secured Indenture Trustee shall reduce a Senior Secured Noteholder's
share by the amount of any Tranche B Recovery. For purposes of the foregoing,
any subordination of the Tranche B Lender Claims to the Senior Secured Notes
shall be a Tranche B Recovery of the Noteholder Proportion to the extent of such
subordination (provided that the Noteholders receive the benefit of such
subordination), and, to the extent that the Senior Secured Noteholders become
entitled to a portion (or all) of the Tranche B Interest as a consequence of the
subordination (whether partial or whole) of the Tranche B Lender Claims to the
Senior Secured Notes, the Senior Secured
23
Noteholders shall waive such Tranche B Interest. The Senior Secured Noteholders
will accept the distributions to the Senior Secured Noteholders or for their
benefit, as described herein (the "Noteholder Distribution"), in full
satisfaction of any claims assertable by the Senior Secured Noteholders (or the
Agent acting on behalf of the Senior Secured Noteholders) in respect of the
Replacement Collateral Obligations or the Tricon Prepetition Receivable.
After giving effect to the Noteholder Distribution, the Senior Secured
Notes shall be allowed as secured claims to the extent of the value of any
remaining Collateral (if any) and as General Unsecured Claims to the extent of
any deficiency in an amount equal to the difference between the unpaid principal
amount of plus accrued and unpaid interest on Claims on the Petition Date and
the sum of the payments equaling the Noteholder Distribution; provided, however,
that nothing in the Plan shall in any way limit or impair the Senior Secured
Noteholders' rights (if any) to recover the funds reserved for the Tranche B
Lenders if and to the extent the Senior Secured Noteholders succeed in equitably
subordinating the Tranche B Lender Claims only to the Senior Secured Notes and
shall not impair the Senior Secured Noteholders' rights (if any) to recover
amounts payable to the Tranche B Lenders in the event that the Tranche B Lender
Claims are equitably subordinated to the Senior Secured Noteholder Claims and
not to any other Creditors.
Subject to any superior liens to the extent not satisfied in full
pursuant to the Plan, the liens securing the Senior Secured Notes will attach to
the proceeds to be distributed to or reserved for the PACA Claims and the
Secured Lenders under the Plan to the extent of the allowed secured claim of the
Senior Secured Noteholders, without prejudice to any party's rights to challenge
the amount of such secured claim.
ARTICLE XII
PROVISION FOR TREATMENT OF TRICON
CLAIMS (CLASS 7)
12.1 ALLOWANCE OF TRICON CLAIMS: The Tricon Claims shall be allowed as
first priority claims in the amount of Two Hundred Twenty Million Dollars
($220,000,000) and shall be paid in the manner specified in Section 12.3 below.
To the extent that a portion of the $220 million priority claim is allocable to
the DIP Facility Claim, distribution of such sums among Tricon and any DIP
Facility assignees shall be effected by Tricon in a manner agreed to by Tricon
and such DIP Facility assignees. In addition, Tricon shall be entitled to
receive the non-recourse recoveries specified in Section 12.2 below, which
non-recourse recoveries will not reduce Tricon's $220 million priority claim.
21.2 NON-RECOURSE RECOVERIES: Tricon shall be entitled to receive (i)
all funds (if any) remaining in the Tranche A Reserve after a Final Order is
entered in respect of the Tranche A Lender Claims, (ii) fifty percent (50%) of
that portion (if any) of the Tranche B Interest that is disallowed by Final
Order, (iii) the first $2.5 million of Cash, if any, remaining in the PACA
Account after the satisfaction in full of all allowed PACA Claims, (iv) all
funds reserved for Administrative Expense Claims, Priority Tax Claims and
Priority Non-Tax Claims,
24
in each case to the extent any such Claims are disallowed by Final Order, and
(v) all Cash and other recoveries (net of recovery costs) in respect of
Encumbered Residual Assets realized by the Post-Confirmation Estate or Tricon.
12.3 PROCEEDS OF POST-CONFIRMATION ESTATE ASSETS: Net recoveries
realized by the Post-Confirmation Estate resulting from the liquidation of the
Post-Confirmation Estate Assets (other than Encumbered Residual Assets) shall be
distributed as follows: First, up to $5 million to a reserve maintained by the
Plan Administrator (the "Post-Effective Date Reserve"), in accordance with the
terms of the Post-Confirmation Estate Agreement, to fund prospective
post-confirmation administrative expenses. Second, to Tricon until Tricon has
been reimbursed for all Post-Confirmation Administrative Expense Advances other
than litigation expenses advances extended by Tricon. Third, to Tricon until
Tricon has been reimbursed for all priority claim reserves and administrative
claim reserves funded by Tricon in excess of the Base Reserve Amount, but only
to the extent that such excess priority claims and administrative claims are
allowed. Fourth, to Tricon to reimburse Tricon for litigation expense advances
made pursuant to Section 17.5 below. And fifth, all remaining net recoveries
shall be shared between Tricon and holders of Allowed General Unsecured Claims
according to the following chart until such time as Tricon has received, in
addition to the reimbursements prescribed above and the non-recourse recoveries
specified in Section 12.2 above, $220 million:
- --------------------------------------------------------------------------------------------------------------------
PERCENTAGE SPLIT ON NET RECOVERIES BETWEEN
ALLOWED TRICON CLAIMS AND
ALLOWED GENERAL UNSECURED CLAIMS
- --------------------------------------------------------------------------------------------------------------------
NET RECOVERY AMOUNT ALLOWED TRICON CLAIMS ALLOWED GENERAL UNSECURED CLAIMS
- --------------------------------- ---------------------------------- -----------------------------------------------
Up to $50 million 80% 20%
Next $50 million 70% 30%
Next $50 million 60% 40%
Next $50 million 60% 40%
Next $50 million 50% 50%
Next $50 million 40% 60%
Next $50 million 40% 60%
Next $50 million 40% 60%
Additional Net Recoveries 0% All Additional Net Recoveries
- --------------------------------- ---------------------------------- -----------------------------------------------
25
Provided, however, that the Plan Administrator may distribute funds in
accordance with the formula described in "fifth" above prior to actual payment
to Tricon as described in "third" above (but not "fourth" above) only if the
Plan Administrator has first reserved sufficient funds to reimburse Tricon for
unresolved priority claims and administrative claims in excess of the Base
Reserve Amount for which Tricon has funded a reserve.
ARTICLE XIII
PROVISIONS FOR CLASSIFICATION AND TREATMENT
OF GENERAL UNSECURED CLAIMS (CLASS 8)
13.1 CLASSIFICATION OF GENERAL UNSECURED CLAIMS: General Unsecured
Claims are divided into four separate subclasses - subclasses 8A, 8B, 8C and 8D
- - each of which is treated identically in the Plan. Subclass 8A consists of
Claims arising under the Senior AFD Indenture. Subclass 8B consists of Claims
arising under the Subordinated AFD Indenture. Subclass 8C consists of General
Unsecured Claims of the Senior Secured Noteholders. Subclass 8D consists of all
other General Unsecured Claims.
13.2 TREATMENT OF GENERAL UNSECURED CLAIMS: Commencing on the
Effective Date, each holder of an Allowed General Unsecured Claim shall be
entitled to receive such holders' Pro Rata Share of net recoveries realized by
the Post-Confirmation Estate resulting from the liquidation of Post-Confirmation
Estate Assets (other than Encumbered Residual Assets) according to the chart in
Section 12.3 above remaining after the full satisfaction of amounts payable (a)
in connection with the administration of the Post-Confirmation Estate, (b) on
account of (or reserved on account of) Post-Confirmation Administrative Expense
Advances and (c) otherwise payable under the Post-Confirmation Estate Agreement.
Distributions to holders of subclass 8A Claims (e.g., holders of the
8 7/8% Senior Unsecured Notes) shall be payable, first to the Senior AFD
Indenture Trustee in satisfaction of the Senior AFD Indenture Trustee's Claims
arising under the Senior AFD Indenture. Distributions to holders of subclass 8B
Claims (e.g., the 10 1/8% Senior Subordinated Notes) shall be payable, first, to
the Subordinated AFD Indenture Trustee in satisfaction of the Subordinated AFD
Indenture Trustee's Claims arising under the Subordinated AFD Indenture. Tricon
shall be deemed to waive and release any right of recovery it may have on
account of any Unsecured Claims.
ARTICLE XIV
PROVISION FOR TREATMENT OF
RECLAMATION CLAIMS (CLASS 9)
14.1 TREATMENT OF RECLAMATION CLAIMS: Commencing on the Effective Date,
each holder of an Allowed Reclamation Claim shall be entitled to receive
distributions as if such Claimant had an Allowed General Unsecured Claim in an
amount equal to 2 1/2 times the allowed amount of such Allowed Reclamation
Claim, plus any Allowed General Unsecured Claim held by such holder. By way of
example, if a Reclamation Claimant has a total Claim of $1.5 million,
26
of which $500,000 constitutes an Allowed Reclamation Claim, and $1 million is an
Allowed General Unsecured Claim, the Allowed Reclamation Claim would be treated
as an Allowed General Unsecured Claim in the amount of $1.25 million ($500,000 x
2.5), in addition to the Allowed General Unsecured Claim of $1 million, for a
total Allowed General Unsecured Claim of $2.25 million.
Notwithstanding the foregoing, in the event that any Reclamation
Claimant (i) objects to the Plan, (ii) votes not to accept the Plan, (iii) after
November 1, 2000 (which date may be extended at the Debtors' sole and absolute
discretion) seeks treatment of such Claim in any manner inconsistent with the
settlement described herein or (iv) that has objected to the Debtors' Motion for
Further Order Establishing Procedure for Valuation of Allowed Reclamation Claims
filed on September 13, 2000 and has not withdrawn such objection on or before
November 1, 2000 (which date may be extended at the Debtors' sole and absolute
discretion), then such Reclamation Claimant shall be entitled to receive
distributions on account of the allowed portion of such Reclamation Claim as if
such holder had an Allowed General Unsecured Claim equal to the amount of such
Allowed Reclamation Claim rather than equal to 2 1/2 times such amount;
provided, however, that holders of Reclamation Claims entitled to the 2.5 times
treatment described above shall not be deemed to have waived any new value
defenses to a Bankruptcy Cause of Action under section 547(c) of the Bankruptcy
Code.
Holders of Reclamation Claims may file Administrative Expense Claims in
the event that the Plan is not confirmed.
ARTICLE XV
PROVISION FOR TREATMENT OF NEHC
CLAIMS (CLASS 10)
15.1 TREATMENT OF NEHC CLAIMS: Each holder of an Allowed NEHC Claim
(including Claims relating to the 12 3/8% Senior Discount Notes and any other
Claims arising under the Subordinated NEHC Indenture) shall receive such
holder's Pro Rata Share of Post-Confirmation Estate Assets remaining after the
full satisfaction in accordance with the terms of the Plan of (a) amounts
payable in connection with the administration of the Post-Confirmation Estate,
(b) Allowed General Unsecured Claims, and (c) Allowed Reclamation Claims.
ARTICLE XVI
PROVISION FOR CANCELLATION OF INTERESTS IN DEBTORS (CLASS 11)
16.1 CANCELLATION OF INTERESTS: On the Effective Date, all NEHC
Interests, AFD Interests, HWPI Interests, PSD Transportation Interests, ATI
Interests, CCC Interests, ASNSC Interests, Delta Transportation Interests, PSC
Services Interests, NTSI Interests, ProSource Mexico Interests, NAVC Corp.
Interests, North American Vantix Corp. Interests and Vantix Logistics Interests
shall be deemed extinguished and the certificates and all other documents
representing such Interests shall be deemed canceled and of no force and effect.
27
ARTICLE XVII
PROVISIONS FOR IMPLEMENTATION OF THE PLAN
17.1 SALE OF ASSETS: The Debtors shall consummate the sale of
substantially all of the Debtors' assets that are used by the Debtors to
distribute food items, paper goods and cleaning supplies primarily to Taco Bell,
Kentucky Fried Chicken, Pizza Hut, and Long John Silver's pursuant to the terms
of the McLane Purchase Agreement in connection with the Sale Transaction or an
Alternative Sale Transaction.
17.2 FUNDING OF THE PLAN:
(1) On the Effective Date, the Debtors shall convey, transfer,
assign and deliver the assets purchased by McLane in connection with the Sale
Transaction or such offeror who submits a higher and better offer pursuant to
the terms of the Alternative Sale Transaction free and clear of all liens and
interests in exchange for the purchase price to be paid pursuant to (i) the
McLane Purchase Agreement or (ii) to the Alternative Sale Transaction.
(2) Subject to the other provisions of the Plan, on the Effective
Date Tricon will fund to the Debtors (the "Tricon Funding"), for the benefit of
the Debtors and the Creditors, Cash in an amount which, when added to the McLane
Proceeds or the purchase price pursuant to the Alternative Sale Transaction and
the Debtors' Cash on hand immediately after the closing of the Sale Transaction
or the Alternative Sale Transaction, equals the sum of the following:
(i) the difference between (y) Fifty Five Million Five
Hundred Thousand Dollars ($55,500,000), and (z) the
sum of aggregate distributions to PACA Claimants
prior to the Effective Date and the amount of Cash in
the PACA Account on the Effective Date;
(ii) the amount in which the Tranche A Lender Claims shall
be deemed allowed in accordance with Section 9.1 of
the Plan, minus funded reserves established for the
Tranche A Lender Claims;
(iii) One Hundred Million Dollars ($100,000,000) in respect
of the loan made by the Tranche B Lender to the
Debtors (net of any reserves held for the Tranche B
Lender);
(iv) fifty percent (50%) of the Tranche B Interest;
(v) thirty two and one half percent (32.5%) of the face
amount (i.e., $205 million) of the Senior Secured
Notes; and
(vi) the Base Reserve Amount, plus $28.1 million to fund
reserves in respect of disputed administrative,
priority and secured claims that are in excess of the
Base Reserve Amount.
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In addition, (1) Tricon shall be obligated to fund the
Post-Effective Date Administrative Expense Budget (not to exceed $15.5 million
in the aggregate) in accordance with such budget (together with such
modifications as to timing and expense category as may be approved by the Plan
Administrator in his discretion), and (2) if after the Effective Date the
Debtors are required pursuant to Section 11.2 above to refund to the Noteholders
a portion (or all) of the Noteholder Proportion in respect of Tranche B Interest
that has been allowed by a Final Order, Tricon will remit to the Debtors, for
distribution to the Noteholders, the amount of such refund; provided, however,
if Tricon fails to so fund, the Plan Administrator may fund any unfunded amount
by using proceeds of the Post-Confirmation Estate Assets and/or Encumbered
Residual Assets as each would be otherwise distributed to Tricon to satisfy such
funding obligation, and (3) if both the funding available under the
Post-Effective Date Administrative Expense Budget and the cash deposited (and on
deposit) in the Post-Effective Date Reserve are inadequate for Post-Effective
Date Administrative Expenses, Tricon will advance (and such advances shall
constitute additional Post-Confirmation Administrative Expense Advances) up to
$5 million MINUS cumulative sums deposited into (and on deposit in) the
Post-Effective Date Reserve. On the Effective Date, Tricon shall have issued on
its behalf a letter of credit naming the Post-Confirmation Estate as the
beneficiary in the face amount equal to $15.5 million MINUS Cash funded by
Tricon on the Effective Date under the Post-Confirmation Administrative Expense
Budget.
(3) Nothing contained in the Plan shall impair the right of the
Plan Administrator to seek Bankruptcy Court approval to use proceeds of
Bankruptcy Causes of Action to fund post-confirmation administrative expenses
for which the Tricon Funding is insufficient.
In consideration of the Tricon Funding, the Debtors shall, INTER ALIA,
(i) dismiss with prejudice within five (5) Business Days after the Effective
Date the lawsuit titled Case No. 00-358 (PJW); United States Bankruptcy Court,
District of Delaware; AMERISERVE FOOD DISTRIBUTION, INC., AMERISERVE FUNDING
CORP., ET AL. V. TRICON GLOBAL RESTAURANTS, INC.; (ii) remit proceeds of the
Encumbered Residual Assets to Tricon: (iii) pay Tricon on account of its Allowed
Tricon Claims in the manner provided in s 12.2 and 12.3; and (iv) provide the
release in favor of Tricon set forth herein.
17.3 TRICON CONTRACT ASSUMPTION: On the Effective Date, Tricon and its
franchisees constituting at least 85% of the restaurants served by the Debtors
for each of the Pizza Hut, Kentucky Fried Chicken and Taco Bell concepts shall
consent to the Debtors' assumption and assignment to McLane of the distribution
agreements of each of them, as modified by the amendments annexed to the McLane
Purchase Agreement. These assumptions and assignments will neither diminish nor
elevate the status or priority of Tricon Unsecured Claims or those of its
franchisees against the Debtors (if any) that arose prior to the Petition Date.
Other than McLane's commitment to perform its obligations under the distribution
agreements (as so amended by the transactions to be consummated in connection
with the execution of the McLane Purchase Agreement), Tricon and Tricon
franchisees hereby waive and release any
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requirement of adequate assurance of future performance under section 365 of the
Bankruptcy Code or otherwise in connection with the Sale Transaction.
17.4 ESTABLISHMENT OF THE POST-CONFIRMATION ESTATE: On the Effective
Date, the Debtors, on their own behalf and on behalf of holders of Claims in
Classes 6, 7, 8, 9 and 10 shall execute the Post-Confirmation Estate Agreement
and shall take all other steps necessary to establish the Post-Confirmation
Estate. On the Effective Date, and in accordance with and pursuant to the terms
of the Plan, the Debtors shall transfer to the Post-Confirmation Estate all of
their right, title, and interest in all of the Post-Confirmation Estate Assets
(including the purchase price paid by McLane or such offeror whose higher and
better offer is accepted by the Debtors). In connection with the transfer of
these assets, including rights and causes of action (including Bankruptcy Causes
of Action), any attorney-client privilege, work-product privilege, or other
privilege or immunity attaching to any documents or communications (whether
written or oral) transferred to the Post-Confirmation Estate shall vest in the
Post-Confirmation Estate and its representatives, and the Debtors and the
Post-Confirmation Estate are authorized to take all necessary actions to
effectuate the transfer of such privileges.
17.5 FUNDING EXPENSES OF THE POST-CONFIRMATION ESTATE: As part of the
Tricon Funding, Tricon will fund up to Five Million Dollars ($5,000,000) to the
Post-Confirmation Estate in the form of a Post-Confirmation Administrative
Expense Advance for the purpose of funding costs associated with litigating and
settling Bankruptcy Causes of Action and any other causes of action. Tricon will
fund Two Million Dollars ($2,000,000) to the Post-Confirmation Estate on the
Effective Date. The remaining Three Million Dollars ($3,000,000) will be funded
by Tricon from the proceeds of the Tranche B Reserve or, if such proceeds are
not timely available, then such amount will be funded directly by Tricon. The
Debtors shall have no obligation to provide any funding with respect to the
Post-Confirmation Estate after they transfer the Post-Confirmation Estate Assets
to the Post-Confirmation Estate. As more fully described in the
Post-Confirmation Estate Agreement, any Cash in the Post-Confirmation Estate
shall be applied, first, to the fees, costs, expenses and liabilities of the
Plan Administrator, second, to satisfy any other administrative and wind down
expenses of the Post-Confirmation Estate and, third, to reimburse Tricon for
Post-Confirmation Administrative Expense Advances; provided, however, that costs
and expenses associated with the realization of proceeds on Post-Confirmation
Estate Assets (other than Encumbered Residual Assets ) shall not be satisfied
from proceeds of the Encumbered Residual Assets. Interest that accrues on any
reserves (including, but not limited to, the Tranche A Reserve and the reserve
established for Disputed Claims) other than the Tranche B Reserve shall be
available in an amount equal to the lesser of (y) Two Million Dollars
($2,000,000) and (z) twenty-five percent (25%) of such interest for use by the
Plan Administrator to cover the fees, costs, expenses and liabilities of the
Plan Administrator (to the extent used, the "Interest Supplement"); provided,
however, that Tricon shall be entitled to be reimbursed for all Interest
Supplements used by the Plan Administrator as Post-Confirmation Administrative
Expense Advances.
17.6 CORPORATE ACTION: Upon the entry of the Confirmation Order by the
Bankruptcy Court, all matters provided under the Plan involving the corporate
structure of the Debtors shall be deemed authorized and approved without any
requirement of further action by
30
the Debtors, the Debtors' shareholders or the Debtors' boards of directors. The
Debtors (and their boards of directors) shall dissolve or otherwise terminate
their existence following the Effective Date and are authorized to dissolve or
terminate the existence of wholly-owned non-Debtor subsidiaries following the
Effective Date.
17.7 PRESERVATION OF RIGHTS OF ACTION
(1) The Debtors are currently investigating whether to pursue
potential Bankruptcy Causes of Action against other Entities. The investigation
has not been completed to date, and under the Plan, the Plan Administrator, on
behalf of the Post-Confirmation Estate, retains all rights on behalf of the
Debtors and the Post-Confirmation Estate to commence and pursue any and all
Bankruptcy Causes of Action (under any theory of law or equity, including,
without limitation, the Bankruptcy Code, and in any court or other tribunal
including, without limitation, in an adversary proceeding filed in the Chapter
11 Cases) discovered in such an investigation to the extent the Plan
Administrator, on behalf of the Post-Confirmation Estate, deems appropriate in
accordance with the terms of the Post-Confirmation Estate Agreement. Potential
Bankruptcy Causes of Action currently being investigated by the Debtors, which
may but need not (if at all), be pursued by the Debtors prior to the Effective
Date and by the Plan Administrator, on behalf of Post-Confirmation Estate, after
the Effective Date to the extent warranted, include, without limitation, the
following Bankruptcy Causes of Action set forth below:
o Any lawsuits for, or in anyway involving, the collection of
accounts receivable or any matter related thereto including,
without limitation, against those parties set forth on the
list of parties in interest filed or to be filed with the
Clerk of the Bankruptcy Court as EXHIBIT B to the Plan
Supplement (the "Party in Interest Matrix");
o The lawsuit titled Case No. 71-181-00280-00; American
Arbitration Association Commercial Arbitration; AMERISERVE
FOOD DISTRIBUTION V. KING CONN ENTERPRISES, INC., ET AL. and
any other causes of action arising out of the
circumstances, events, transactions or other facts giving rise
to this claims and/or causes of action in the above numbered
adversary proceeding;
o The lawsuit titled Case No. 71-Y-181-00281-00; American
Arbitration Association Commercial Arbitration; AMERISERVE
FOOD DISTRIBUTION, INC. V. POTOMAC FOODS, INC. and any other
causes of action arising out of the circumstances, events,
transactions or other facts giving rise to this claims and/or
causes of action in the above numbered adversary proceeding;
o The lawsuit titled Case No. 71-Y-181-00282-00; American
Arbitration Association, Commercial Arbitration; AMERISERVE
FOOD DISTRIBUTION, INC. V. RON DEVINE, NOVA KING, INC.,
VIRGINIA FOODS, INC. AND A/R FOODS and any other causes of
action arising out of the circumstances, events, transactions
or other facts giving rise to this claims and/or causes of
action in the above numbered adversary proceeding;
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o The lawsuit titled Case No. 00-000618 (PJW); United States
Bankruptcy Court, District of Delaware; AMERISERVE FOOD
DISTRIBUTION, INC. V. JOHN HOLTEN, HOLBERG INCORPORATED,
HOLBERG INDUSTRIES INC., AND NEBCO EVANS DISTRIBUTORS, INC.
and any other causes of action arising out of the
circumstances, events, transactions or other facts giving
rise to this claims and/or causes of action in the above
numbered adversary proceeding;
o The lawsuit titled Case No. 00-3601; District Court of Dallas
County, Texas, F-116th Judicial Circuit; AMERISERVE FOOD
DISTRIBUTION, INC. V. MBM CORPORATION, RICK RUTH, AND ROY
DERIDDER and any other causes of action arising out of the
circumstances, events, transactions or other facts giving rise
to this claims and/or causes of action in the above numbered
adversary proceeding;
o The lawsuit titled AMERISERVE FOOD DISTRIBUTION, INC. V.
MARMIJA, INC., ROB-HIN, INC., HIN-ROB, INC., HINBO, INC. and
any other causes of action arising out of the circumstances,
events, transactions or other facts giving rise to this claims
and/or causes of action in the above numbered adversary
proceeding;
o Potential claims for prepetition breaches of fiduciary duty,
negligent management and wasting of corporate assets and
corporate opportunity and/or arising under the Debtors'
Directors and Officers Insurance policies against the Debtors'
prepetition directors and officers, among others;
o Any and all potential claims against the prepetition members
of the Debtors' Boards of Directors and/or officers,
including, without limitation, the right to equitably
subordinate claims held by such directors and/or officers
pursuant to section 510(c) of the Bankruptcy Code;
o Any and all claims, including, but not limited to, breach of
contract and breach of fiduciary duty against DLJ in
connection with various acquisitions and debt offerings;
o Any and all fraudulent conveyance claims against PepsiCo.,
Inc. in any way related to the Debtors' purchase of PFS, BKC
(including without limitation against BKC franchisees), and
the shareholders of ProSource, Inc. (including, without
limitation, Onyx) in any way related to the Debtors' purchase
of ProSource;
o Potential claims for breach of a prepetition contract and
otherwise related to actions or inactions by the Debtors'
prepetition consultants and service providers, including,
without limitation, JD Edwards and other consultants set forth
on the Party in Interest Matrix;
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o Claims arising out of, and in connection with, the prepetition
management, operation and/or reporting of financial and other
information against all persons and entities having any
responsibility with respect thereto, whether such claims are
legal, equitable or statutory in nature, including, without
limitation, those claims listed on the Party in Interest
Matrix;
o Claims to recover amounts improperly awarded to employees
under the terms of any prepetition employment or change in
control agreement, including, without limitation, those listed
on the Party in Interest Matrix;
o All violations against third parties with respect to
prepetition violations of applicable federal or state
securities laws;
o All claims or causes of action arising out of or that relate
to prepetition acquisitions or financings;
o Any and all actual or potential breach of contract claims
against BKC and its franchisees related to the amendment of
the distribution contracts with the Debtors and/or the
termination/expiration thereof;
o The collection of monies due from customers and vendors listed
on the Party in Interest Matrix;
o Any and all actual or potential breach of contract claims
against BKC, Restaurant Services, Inc. and Chick-fil-A, Inc.
related to, among other things, the amendment of the
distribution contracts with the Debtors and/or the
termination/expiration thereof and/or the termination by other
customers, employees and other business relations of their
relationships with the Debtors;
o Any and all actual or potential breach of contract claims
against BKC franchisees (and the owners thereof) relating to
nonpayment of accounts receivables including North Carolina
Franchise Group, North Illinois Franchise Group, Southern King
Enterprises, Cimm's, Inc., Virginia Cimm's, Inc., Hawaii
Cimm's, Inc., Oahu Restaurants, Inc., Southwest Cimm's, Inc.,
Lawrence P. Cimmarusti, Amilia M. Cimmarusti, Ralph J.
Cimmarusti, Hallie D. Cimmarusti and Sydran Systems, Inc.;
o Any and all actual or potential breach of contract claims
against Brinker International, RTM, Inc., Sybra, Inc., ICH
Corporation, Main St. Mains, Inc., Carlson Restaurants
Worldwide, Inc., TGI Friday's, Inc., International Dairy Queen
and/or any and all customers who improperly exited the
Debtors' system and/or have improperly asserted or taken
action through setoff;
o Any and all actual or potential Secured Lender Causes of
Action;
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o All claims or causes of action arising out of or that relate
to the Debtors' purchase from Dan Crippen of his 50% interest
in Post Holdings Company;
o Any and all claims or causes of action against William Woodall
relating to the Debtors' payment of $875,000 to Mr. Woodall in
or about January of 1999;
o All claims or causes of action arising out of or that relate
to transactions identified in the "Certain Relationships and
Related Transactions" section of AFD's or NEHC's public
filings; and
o Any and all actual or potential claims or causes of action
against NEDI, Holberg, Inc., Holberg Industries, Inc., and
their respective shareholders (including but not limited to
John Victor Holten) arising out of or related to the accounts
receivable balance of approximately $11.3 million now listed
as being owed by NEDI to NEHC, but which prior to December 8,
1999 was owed by Holberg Industries, Inc. to NEHC and AFD.
(2) In addition, potential Bankruptcy Causes of Action which may
be pursued by the Debtors prior to the Effective Date and by the Plan
Administrator, on behalf of the Post-Confirmation Estate after the Effective
Date, also include, without limitation the following: (1)
o Any other actual or potential Bankruptcy Causes of Action,
whether legal, equitable or statutory in nature, arising out
of, or in connection with the Debtors' businesses or
operations, including, without limitation, the following:
possible claims against vendors, landlords, sublessees,
assignees, customers or suppliers for warranty, indemnity,
back charge/set-off issues, overpayment or duplicate payment
issues and collections/accounts receivable matters; deposits
or other amounts owed by any creditor, lessor, utility,
supplier, vendor, landlord, sublessee, assignee, or other
entity; employee, management or operational matters; claims
against landlords, sublessees and assignees arising from
various leases, subleases and assignment agreements relating
thereto, including, without limitation, claims for overcharges
relating to taxes, common area maintenance and other similar
charges; financial reporting; environmental, and product
liability matters; actions against insurance carriers relating
to coverage, indemnity or other matters; counterclaims and
defenses relating to notes or other obligations; contract or
tort claims which may exist or subsequently arise; and
o Except for the express waiver of certain claims in the Plan,
any and all actual or potential avoidance claims pursuant to
any applicable section of the Bankruptcy Code, including,
without limitation sections 544, 545, 547, 548, 549, 550, 551,
553(b) and/or 724(a) of the Bankruptcy Code, arising from any
transaction involving or concerning the Debtors.
34
In addition, there may be numerous other Bankruptcy Causes of Action
which currently exist or may subsequently arise that are not set forth herein,
because the facts upon which such Bankruptcy Causes of Action are based are not
fully or currently known by the Debtors and, as a result, cannot be raised
during the pendency of the Chapter 11 Cases (collectively, the "Unknown Causes
of Action"). The failure to list any such Unknown Cause of Action herein is not
intended to limit the rights of the Plan Administrator, on behalf of the
Post-Confirmation Estate, to pursue any Unknown Cause of Action to the extent
the facts underlying such Unknown Cause of Action become fully known to the
Debtors.
The potential net proceeds from the Bankruptcy Causes of Action
identified herein, or which may subsequently arise or be pursued, are
speculative and uncertain and therefore no value has been assigned to such
recoveries. The Debtors and the Post-Confirmation Estate do not intend, and it
should not be assumed that because any existing or potential Bankruptcy Causes
of Action have not yet been pursued by the Debtors or are not set forth herein,
that any such Bankruptcy Causes of Action have been waived.
Unless Bankruptcy Causes of Action against an Entity are expressly
waived, relinquished, exculpated, released, compromised or settled in the Plan
or any Final Order, the Debtors expressly reserve all Bankruptcy Causes of
Action and Unknown Causes of Action, including the Bankruptcy Causes of Action
described herein, as well as any other Bankruptcy Causes of Action or Unknown
Causes of Action, for later adjudication and, therefore, no preclusion doctrine,
including, without limitation, the doctrines of res judicata, collateral
estoppel, issue preclusion, claim preclusion, estoppel (judicial, equitable or
otherwise) or laches shall apply to such Bankruptcy Causes of Action upon or
after the confirmation or consummation of the Plan. In addition, the Debtors
expressly reserve the right to pursue or adopt any claims alleged in any lawsuit
in which the Debtors are a defendant or an interested party, including the
lawsuits described herein, against any Entity, including, without limitation,
the plaintiffs and co-defendants in such lawsuits.
Except as otherwise provided in the Plan or in any contract,
instrument, release, indenture or other agreement entered into in connection
with the Plan, in accordance with section 1123(b)(3) of the Bankruptcy Code, any
claims, rights, and Bankruptcy Causes of Action that the respective Debtors or
the Post-Confirmation Estate may hold against any Entity, including but not
limited to those Bankruptcy Causes of Action listed herein, shall vest in the
Post-Confirmation Estate, and the Plan Administrator, on behalf of the
Post-Confirmation Estate, shall retain and may exclusively enforce, as the
authorized representative of the Post-Confirmation Estate, any and all such
claims, rights, or Bankruptcy Causes of Action, as appropriate, in accordance
with the best interests of the Post-Confirmation Estate and the terms of the
Post-Confirmation Estate Agreement. The Plan Administrator, on behalf of the
Post-Confirmation Estate, shall have the exclusive right, authority, and
discretion to institute, prosecute, abandon, settle, or compromise any and all
such claims, rights, and Bankruptcy Causes of Action without the consent or
approval of any third party and without any further order of court except as
otherwise provided in the Post-Confirmation Estate Agreement. Nothing in this
Section 17.7 is intended to impair any causes of action or theories of recovery
that are owned directly by Creditors.
35
Notwithstanding the foregoing, the Debtors have investigated the
actions and conduct of the Agent (solely in its capacity as Agent for the
Tranche A Lenders) and the Tranche A Lenders (solely in their capacity as
Tranche A Lenders) related to the Credit Agreement. Based upon this
investigation, the Debtors do not reserve any claims or causes of action against
the Agent (solely in its capacity as Agent for the Tranche A Lenders) or the
Tranche A Lenders (solely in their capacity as Tranche A Lenders) relating to
the Credit Agreement or the disgorgement of any payments to the Tranche A
Lenders (solely in their capacity as Tranche A Lenders) under the Credit
Agreement or pursuant to the Plan.
The Debtors have preserved and continue to reserve their rights to
contest the validity, priority, extent and amount of the asserted liens and
asserted security interests of the Agent (on behalf of the Secured Lenders) in
the following categories of assets:
o Motor vehicles that, as of the Petition Date, resided in
jurisdictions that have certificate of title laws and require
the lien to be noticed on that certificate of title in order
for a lien to be perfected;
o Cash deposited in bank accounts prior to and after the
Petition Date (i) which bank accounts are not covered by
blocked account or lockbox agreements to which the Agent is a
party or (ii) which cash is deposited with banks that are not
signatories to the Credit Agreement;
o Assets (or proceeds thereof) located in the State of
Massachusetts prior to and after the Petition Date;
o Real property or fixtures owned by the Debtors other than real
property located in Mecklenburg County, North Carolina and
covered by that Deed of Trust, Assignment of Leases and Rents,
Security Agreement and Financing Statement dated as of April
22, 1996;
o Deposits with utilities, landlords or other third parties;
o Letters of credit proceeds;
o Unearned insurance premiums funds and refunds due from
insurance carriers and other third parties (including
Governmental Units);
o Rent received by the Debtors as sublessors of real property
(other than the real property located in Mecklenburg County,
North Carolina); and
o Stock owned by the Debtors in their foreign affiliates.
17.8 APPOINTMENT OF PLAN ADMINISTRATOR: On the Effective Date,
compliance with the provisions of the Plan shall become the general
responsibility of the Plan Administrator and the Plan Administrator shall be
appointed in accordance with the Post-Confirmation Estate Agreement.
36
17.9 OVERSIGHT COMMITTEE: On the Effective Date, the POC shall be
appointed as described in the Post-Confirmation Estate Agreement, with the
rights and authority described therein. The Committee Designees, the Reclamation
Designee and the Tricon Designee shall be the initial members of the POC. The
POC shall adopt its own bylaws; provided that such bylaws shall contain the
following provisions and other provisions consistent with the Post-Confirmation
Estate Agreement:
(i) If for any reason a Committee Designee ceases to
be a member of the POC, the remaining Committee Designees may
select a successor to that Committee Designee; provided,
however, that at all times, at least one-half of the Committee
Designees shall be prepetition trade vendors of the Debtors.
(ii) If for any reason the Reclamation Designee
ceases to be a member of the POC, the ad hoc committee of
Reclamation Claimants may select a successor to fill the
vacancy.
(iii) If for any reason prior to Tricon's receipt of
the Satisfaction Amount, the Tricon Designee ceases to be a
member of the POC, Tricon shall select a successor to fill the
vacancy.
The Plan Administrator shall not be required to obtain Bankruptcy Court approval
with respect to any proposed action or inaction to which the POC has consented.
The POC shall be deemed to have consented to a proposed action or inaction by
the Plan Administrator if (i) so long as Tricon is a member of the POC, the
Tricon Designee has provided its written consent and (ii) a majority of the POC
members who are Committee Designees and the Reclamation Designee provide their
written consent. With respect to any litigation directly or indirectly involving
any member of the POC, such POC member(s) shall recuse themselves from any
decision affecting such litigation. The Tricon Designee shall recuse him or
herself from any votes upon any matters relating to the initiation of litigation
against PepsiCo., Inc. and/or its current and former officers, directors and
affiliates. Tricon's membership on the POC shall immediately cease and the
powers of the Tricon Designee shall immediately terminate upon the Satisfaction
Event.
17.10 TRICON FUNDING PERFORMANCE: On the Effective Date, the proceeds
of the Tricon Funding shall be conveyed and transferred to the Debtors for the
benefit of Creditors in accordance with the Plan. Once Tricon has fully funded
the Tricon Funding, the Debtors shall (i) fund the PACA Account in an amount
equal to the difference between the PACA Cash Amount and the amount of Cash in
the PACA Account on the Effective Date, (ii) fund the Tranche B Reserve, (iii)
fund 50% of the Tranche B Interest and (iv) pay all Claims required to be paid
on the Effective Date. The Debtors will then transfer the Post-Confirmation
Estate Assets (which include the Debtors' interest in the PACA Account, the
Tranche B Reserve and the Tranche B Interest) to the Post-Confirmation Estate in
accordance with the terms hereof.
17.11 CANCELLATION OF NOTES, INSTRUMENTS, DEBENTURES AND EQUITY
SECURITIES: On the Effective Date, except to the extent provided otherwise in
the Plan, all notes, instruments,
37
certificates and other documents evidencing Claims and all Equity Securities in
any of the Debtors shall be canceled and deemed terminated other than the Senior
Secured Notes. On the Effective Date, the Senior AFD Indenture, the Subordinated
AFD Indenture and the Subordinated NEHC Indenture, shall be deemed canceled as
permitted by section 1123(a)(5)(F) of the Bankruptcy Code.
17.12 SURRENDER OF NOTES: Except as otherwise ordered by the Bankruptcy
Court, in order to receive any distribution under the Plan, each holder of a
Tranche A Lender Claim, a Tranche B Lender Claim or an Unsecured Note issued
under an indenture will be required to surrender all of its notes to the
appropriate indenture trustee for cancellation. Failure to comply with such
requirements will bar a holder from receiving any distribution under the Plan.
Notwithstanding the foregoing, all such notes shall be deemed surrendered,
canceled and of no further force or effect as of the Effective Date, whether or
not such notes are delivered to the appropriate indenture trustee. The manner
and procedure to be followed for surrendering notes and for providing necessary
affidavits and bonds shall be prescribed by the indenture trustees, upon
reasonable notices sent to all holders of such notes.
17.13 SURVIVAL OF CERTAIN TERMS OF INDENTURES: Notwithstanding the
termination of the indentures and notes issued under any indenture, the
provisions of the indentures governing the relationships of the indenture
trustee and their respective holders of notes, including those provisions
relating to distributions, the indenture trustee's rights to payment, liens on
property to be distributed to holders of such notes, and the indenture trustees'
rights of indemnity, if any, shall not be affected by the confirmation of the
Plan.
ARTICLE XVIII
PROVISIONS FOR TREATMENT OF DISPUTED CLAIMS
UNDER THE PLAN
18.1 OBJECTIONS TO CLAIMS; PROSECUTION OF DISPUTED CLAIMS:
(a) The Debtors or the Post-Confirmation Estate shall object to the
allowance of Claims or Interests filed with the Bankruptcy Court with respect to
which they dispute liability or allowance in whole or in part. All objections
shall be litigated to Final Order; PROVIDED, HOWEVER, that the Plan
Administrator (within such parameters as may be established by the
Post-Confirmation Estate Agreement) shall have the authority to file, settle,
compromise or withdraw any objections to Claims, without approval of the
Bankruptcy Court; and PROVIDED, FURTHER, that this Section 18.1 does not
preclude the Senior Secured Noteholders from objecting to any of the Tranche B
Lender Claims.
(b) Notwithstanding the foregoing, the Plan Administrator, on behalf of
the Post-Confirmation Estate, shall have the exclusive right to object to the
allowance of Administrative Expense Claims and Secured Claims for (i) ninety
(90) days from the Effective Date if no deadline to object to such Claims is set
by the Bankruptcy Court or (ii) up to the forty-fifth (45th) day prior to any
deadline to object to such claims ordered by Bankruptcy Court. After the time
periods expire in the case of either clause (i) or (ii) above, Tricon may send a
written notice to the Plan Administrator requesting that the Plan Administrator
object to one or more Administrative Expense Claims or Secured Claims. If,
within five Business Days of the Plan Administrator's receipt of such notice,
the Plan Administrator fails to consent in writing to Tricon's request, then
Tricon may object to those Claims to which the Plan Administrator has declined
to object.
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(1) The Plan Administrator shall notify Tricon in writing of its
intent to settle any Administrative Expense Claim or Secured Claim in an amount
in excess of $500,000 describing in reasonable detail the proposed settlement.
Tricon shall have five Business Days from the date it receives such notice to
object in writing to the Plan Administrator to the settlement of any such Claims
in excess of $500,000. If Tricon timely objects to such settlement, then the
Plan Administrator only may settle any such Claim with either the written
consent of Tricon or an order of the Bankruptcy Court.
18.2 ESTIMATION OF CLAIMS: The Debtors or the Post-Confirmation Estate
may at any time request that the Bankruptcy Court estimate any contingent or
Disputed Claim pursuant to section 502(c) of the Bankruptcy Code regardless of
whether the Debtors or the Plan Administrator previously have objected to such
Claim or whether the Bankruptcy Court has ruled on any such objection, and the
Bankruptcy Court will retain jurisdiction to estimate any Claim at any time
during litigation concerning any objection to any Claim, including, without
limitation, during the pendency of any appeal relating to any such objection.
Subject to the provisions of section 502(j) of the Bankruptcy Code, in the event
that the Bankruptcy Court estimates any contingent or Disputed Claim, the amount
so estimated shall constitute the maximum allowed amount of such Claim. If the
estimated amount constitutes a maximum limitation on the amount of such Claim,
the Debtors or the Post-Confirmation Estate may pursue supplementary proceedings
to object to the allowance of such Claim. All of the aforementioned objection,
estimation and resolution procedures are intended to be cumulative and not
necessarily exclusive of one another. Claims may be estimated and subsequently
compromised, settled, withdrawn or resolved by any mechanism approved by the
Bankruptcy Court.
18.3 PAYMENTS AND DISTRIBUTIONS ON DISPUTED CLAIMS: No interest shall
be paid on Disputed Claims that later become Allowed Claims or with respect to
any distribution to such holder. No distribution shall be made with respect to
all or any portion of any Claim, a portion of which or all of which is a
Disputed Claim pending the entire resolution thereof in the manner prescribed in
Section 18.1 hereof.
ARTICLE XIX
POST-CONFIRMATION ESTATE; THE PLAN ADMINISTRATOR
19.1 GENERALLY: The powers, authority, responsibilities and duties of
the Post-Confirmation Estate and the Plan Administrator are set forth in and
shall be governed by the Post-Confirmation Estate Agreement.
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19.2 PURPOSE OF THE POST-CONFIRMATION ESTATE: The Post-Confirmation
Estate shall be established for the primary purpose of liquidating its assets,
in accordance with Treasury Regulation Section 301.7701-4(d), with no objective
to continue or engage in the conduct of a trade or business, except to the
extent reasonably necessary to, and consistent with, the liquidating purpose of
the Post-Confirmation Estate. The Post-Confirmation Estate shall not be deemed a
successor of the Debtors. It is not anticipated that the Debtors will incur any
United States federal income tax liability from the transfer of the
Post-Confirmation Estate Assets to the Post-Confirmation Estate.
19.3 TRANSFER OF ASSETS:
(1) The transfer of the Post-Confirmation Estate Assets to the
Post-Confirmation Estate (after taking into account the payment by the Debtors
to and/or funding of the Allowed and projected Administrative Expense Claims,
the PACA Account, the Tranche A Reserve and the Tranche B Reserve) shall be
made, as provided herein, for the benefit of the holders of Allowed Claims in
Classes 6, 7, 8, 9 and 10 only to the extent such holders are entitled to
distributions under the Plan. On the Effective Date, and after the Debtors'
payments and/or funding of such reserves, on behalf of the holders of Allowed
Administrative Expense Claims and Allowed Claims in Classes 6, 7, 8, 9 and 10,
the Debtors shall transfer title to all remaining assets and such reserves
(subject only to such specified liabilities) to the Post-Confirmation Estate.
Upon the transfer of the Post-Confirmation Estate Assets to the
Post-Confirmation Estate, the Debtors shall have no interest in or with respect
to the Post-Confirmation Estate Assets or the Post-Confirmation Estate.
Notwithstanding the foregoing, to the extent the Debtors determine that any such
transfer may implicate an exclusion in any Debtors' Director and Officer
Insurance Policy, the cause of action at issue shall be assigned in another
manner determined by the Debtors.
(2) For all federal income tax purposes, all parties (including,
without limitation, the Debtors, the Plan Administrator and the beneficiaries of
the Post-Confirmation Estate) shall treat the transfer of assets to the
Post-Confirmation Estate in accordance with the terms of the Plan, as a transfer
by the Debtors to the holders of Allowed Claims in Classes 6, 7, 8, 9 and
followed by a transfer by such holders to the Post-Confirmation Estate, and the
beneficiaries of the Post-Confirmation Estate shall be treated as the grantors
and owners thereof.
(3) After the Effective Date, and upon ten (10) Business Day's
written notice from Tricon to the Plan Administrator, the Plan Administrator
shall turn over to Tricon the Encumbered Residual Assets.
19.4 VALUATION OF ASSETS: As soon as possible after the Effective Date,
the Post-Confirmation Estate shall value the Post-Confirmation Estate Assets
based on the good faith determination of the Post-Confirmation Estate and the
Post-Confirmation Estate shall apprise the beneficiaries of the
Post-Confirmation Estate of such valuation. The valuation shall be used
consistently by all parties (including the Debtors, the Plan Administrator and
the beneficiaries of the Post-Confirmation Estate) for all federal income tax
purposes. Any dispute regarding the valuation of these assets shall be resolved
by the Bankruptcy Court.
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19.5 DISTRIBUTION; WITHHOLDING: At least annually, the Plan
Administrator shall distribute to the beneficiaries of the Post-Confirmation
Estate all net cash income plus all net cash proceeds from the liquidation of
assets (including as Cash for this purpose, all Cash Equivalents); PROVIDED,
HOWEVER, that the Post-Confirmation Estate may retain such amounts (i) as are
necessary in the sole discretion of the Plan Administrator to meet contingent
liabilities and to maintain the value of the Post-Confirmation Estate Assets
during liquidation, (ii) to pay administrative expenses (including any taxes
imposed on the Post-Confirmation Estate or in respect of the Post-Confirmation
Estate Assets) and (iii) to satisfy other liabilities incurred or assumed by the
Post-Confirmation Estate (or to which the Post-Confirmation Estate Assets are
otherwise subject) in accordance with the Plan or the Post-Confirmation Estate
Agreement. All such distributions shall be subject to the terms of the Plan and
the Post-Confirmation Estate Agreement; PROVIDED, FURTHER, that of the net
amount distributable, the Plan Administrator shall reserve, in accordance with
Section 19.7 hereof, such amounts as would be distributable in respect of
Disputed Claims (treating such Claims, for this purpose, as if they were Allowed
Claims). The Post-Confirmation Estate may withhold from amounts distributable to
any Entity any and all amounts, determined in the Plan Administrator's
reasonable sole discretion, to be required by any law, regulation, rule, ruling,
directive or other governmental requirement.
19.6 POST-CONFIRMATION ESTATE IMPLEMENTATION: On the Effective Date,
the Post-Confirmation Estate will be established and become effective for the
benefit of the holders of Claims in Classes 6, 7, 8, 9 and 10. The
Post-Confirmation Estate Agreement shall contain provisions customary to trust
agreements utilized in comparable circumstances, including, but not limited to,
any and all provisions necessary to ensure the continued treatment of the
Post-Confirmation Estate as a grantor trust and the holders of Allowed Claims as
the grantors and owners thereof for federal income tax purposes. All parties
(including the Debtors, the Plan Administrator and holders of Claims in Classes
6, 7, 8, 9 and 10) shall execute any documents or other instruments as necessary
to cause title to the applicable assets to be transferred to the
Post-Confirmation Estate.
19.7 DISPUTED CLAIMS RESERVE: The Post-Confirmation Estate shall
maintain, in accordance with the Post-Confirmation Estate's powers and
responsibilities as described herein and in the Post-Confirmation Estate
Agreement, a reserve of any distributable amounts required to be set aside on
account of Disputed Claims. Such amounts shall be distributed, as provided
herein, as such Disputed Claims are resolved by Settlement or Final Order, and
shall be distributable in respect of such Disputed Claims as such amounts would
have been distributable had the Disputed Claims been Allowed Claims as of the
Effective Date.
19.8 TERMINATION OF POST-CONFIRMATION ESTATE: The Post-Confirmation
Estate will terminate no later than the fifth (5th) anniversary of the Effective
Date; provided, however, that, on or prior to the date six (6) months prior to
such termination, the Bankruptcy Court, upon motion by a party in interest, may
extend the term of the Post-Confirmation Estate for a finite period, if such
extension is necessary to the liquidation of the Post-Confirmation Estate
Assets. Notwithstanding the foregoing, multiple extensions can be obtained so
long as Bankruptcy Court approval is obtained at least six (6) months prior to
the expiration of each extended term;
41
PROVIDED, HOWEVER, that the Plan Administrator receives an opinion of counsel or
a favorable ruling from the IRS that any further extension would not adversely
affect the status of the Post-Confirmation Estate as a grantor trust for federal
income tax purposes.
19.9 TERMINATION OF PLAN ADMINISTRATOR: The duties, responsibilities
and powers of the Plan Administrator shall terminate in accordance with the
terms of the Post-Confirmation Estate Agreement.
19.10 EXCULPATION; INDEMNIFICATION: From and after the Effective Date,
the Plan Administrator, the Plan Administrator's and the Post-Confirmation
Estate's employees and each of their professionals and representatives shall be
and hereby are exculpated by all Persons and Entities, including, without
limitation, holders of claims and other parties in interest, from any and all
claims, causes of action and other assertions of liability arising out of the
discharge of the powers and duties conferred upon such Plan Administrator by the
Plan or any Order of the Bankruptcy Court entered pursuant to or in furtherance
of the Plan, or applicable law, or otherwise, except only for actions or
omissions to act to the extent determined by an order of a court of competent
jurisdiction (with such order becoming a final, non-appealable order) to be due
to their own respective gross negligence or willful misconduct from and after
the Effective Date. No holder of a claim or other party in interest will have or
pursue any claim or cause of action against the Plan Administrator, the
Post-Confirmation Estate or the employees or professionals or representatives of
either the Plan Administrator or the Post-Confirmation Estate for making
payments in accordance with the Plan or for implementing the provisions of the
Plan. Any act or omission taken with the approval of the Bankruptcy Court or the
POC will be conclusively deemed not to constitute gross negligence or willful
misconduct. The Post-Confirmation Estate shall indemnify, defend and hold
harmless the Plan Administrator, the Plan Administrator's and the
Post-Confirmation Estate's employees, professionals and representatives from and
against any and all claims, causes of action, liabilities, losses, damages and
expenses (including attorneys' fees and expenses) (other than to the extent
determined by an order of a court of competent jurisdiction (with such order
becoming a final, non-appealable order) to be due to their own respective gross
negligence or wilful misconduct) to the fullest extent permitted by applicable
law. The obligations of the Debtors to indemnify and reimburse the D&O Releasees
against and for any obligations pursuant to articles of incorporation, codes of
regulations, bylaws, applicable state law, or specific agreement, or any
combination of the foregoing with respect to postpetition acts or omissions,
shall be assumed by the Post-Confirmation Estate to the extent covered by this
Plan. The Plan Administrator shall not be deemed a successor of the Debtors. The
Plan Administrator and the Post-Confirmation Estate shall be authorized to
obtain (by using Cash in the Post-Confirmation Estate) insurance coverage with
respect to the responsibilities, liabilities and obligations of the Plan
Administrator and the Post-Confirmation Estate and those Entities hired by the
Plan Administrator and the Post-Confirmation Estate to discharge such
responsibilities, liabilities and obligations. The exculpation provisions of
this Section shall apply with equal force to the Tricon Designee and those
members of the Creditors' Committee and the Ad Hoc Committee of Reclamation
Claimants who serve on the POC, their professionals and their designees (all in
such capacity on the POC).
42
ARTICLE XX
ACCEPTANCE OR REJECTION OF PLAN; EFFECT OF REJECTION
BY ONE OR MORE CLASSES OF CLAIMS OR INTERESTS
20.1 IMPAIRED CLASSES TO VOTE: Each holder of a Claim or Interest in an
impaired Class shall be entitled to vote separately to accept or reject the Plan
unless such holder is deemed to accept or reject the Plan.
20.2 ACCEPTANCE BY CLASS OF CREDITORS AND HOLDERS OF INTERESTS: An
impaired Class of holders of Claims shall have accepted the Plan if the Plan is
accepted by at least two-thirds (2/3) in dollar amount and more than one-half
(1/2) in number of the Allowed Claims of such Class that have voted to accept or
reject the Plan. An impaired Class of holders of Interests shall have accepted
the Plan if the Plan is accepted by at least two-thirds (2/3) in amount of the
Allowed Interests of such Class that have voted to accept or reject the Plan. A
Class of holders of Claims shall be deemed to accept the Plan in the event that
no holder of a Claim within that Class submits a Ballot by the Ballot Date.
20.3 CRAMDOWN: In the event that any impaired Class of Claims or
Interests shall fail to accept the Plan in accordance with section 1129(a) of
the Bankruptcy Code, the Debtors reserves the right to request that the
Bankruptcy Court confirm the Plan in accordance with section 1129(b) of the
Bankruptcy Code or amend the Plan.
ARTICLE XXI
IDENTIFICATION OF CLAIMS AND INTERESTS
IMPAIRED AND NOT IMPAIRED BY THE PLAN
21.1 IMPAIRED AND UNIMPAIRED CLASSES: Claims in Classes 1, 2, 3 and 5
of the Plan are not impaired under the Plan. Claims and Interests in Classes 4,
6, 7, 8, 9, 10 and 11 are impaired under the Plan.
21.2 IMPAIRED CLASSES TO VOTE ON PLAN: The Claims included in Classes
4, 6, 7, 8, 9 and 10 of the Plan are impaired and are therefore entitled to vote
to accept or reject the Plan. The Interests included in Class 11 of the Plan are
deemed to have rejected the Plan in accordance with the provisions of section
1126(g) of the Bankruptcy Code.
21.3 CONTROVERSY CONCERNING IMPAIRMENT: In the event of a controversy
as to whether any Class of Claims or Interests is impaired under the Plan, the
Bankruptcy Court shall, after notice and a hearing, determine such controversy.
ARTICLE XXII
PROVISIONS REGARDING DISTRIBUTIONS
22.1 MANNER OF PAYMENT UNDER THE PLAN: Any payment in Cash to be made
by the Debtors or the Plan Administrator shall be made, at the election of the
Debtors or the Plan Administrator, as the case may be, by check drawn on a
domestic bank or by wire transfer from a domestic bank.
43
22.2 DELIVERY OF DISTRIBUTIONS: Subject to the provisions of Rule
2002(g) of the Bankruptcy Rules, and except as otherwise provided herein,
distributions and deliveries to holders of Allowed Claims shall be made at the
address of each such holder as set forth on the Schedules filed with the
Bankruptcy Court unless superseded by the address set forth on proofs of claim
filed by such holders, or at the last known address of such a holder if no proof
of claim is filed or if the Debtors has been notified in writing of a change of
address.
22.3 UNDELIVERABLE DISTRIBUTIONS:
(1) HOLDING OF UNDELIVERABLE DISTRIBUTIONS: If any distribution
to any holder is returned to the Plan Administrator as undeliverable, no further
distributions shall be made to such holder unless and until the Plan
Administrator is notified, in writing, of such holder's then-current address.
Undeliverable distributions shall remain in the possession of the Plan
Administrator until such time as a distribution becomes deliverable. All
Entities ultimately receiving undeliverable Cash shall not be entitled to any
interest or other accruals of any kind. Nothing contained in the Plan shall
require the Plan Administrator to attempt to locate any holder of an Allowed
Claim or an Allowed Interest.
(2) FAILURE TO CLAIM UNDELIVERABLE DISTRIBUTIONS: After the first
(1st) anniversary of the Effective Date, the Plan Administrator shall file a
list with the Bankruptcy Court setting forth the names of those Entities, if
any, for which distributions have been made hereunder and have been returned as
undeliverable as of the date thereof. Any holder of an Allowed Claim that does
not assert its rights pursuant to the Plan to receive a distribution within six
(6) months from and after the date such distribution is returned as
undeliverable shall have its Claim for such undeliverable distribution
discharged and shall be forever barred from asserting any such Claim against the
Post-Confirmation Estate, the Plan Administrator or the Post-Confirmation Estate
Assets. In such case, any consideration held for distribution on account of such
Claim or Interest shall revert to the Post-Confirmation Estate for distribution
to the beneficiaries of the Post-Confirmation Estate in accordance with the
terms of the Plan.
22.4 COMPLIANCE WITH TAX REQUIREMENTS/ALLOCATION: To the extent
applicable, the Post-Confirmation Estate shall comply with all tax withholding
and reporting requirements imposed on it by any Governmental Unit, and all
distributions pursuant to the Plan shall be subject to such withholding and
reporting requirements. For tax purposes, distributions received in respect of
Allowed Claims will be allocated first to the principal amount of such Claims,
with any excess allocated to unpaid accrued interest.
22.5 TIME BAR TO CASH PAYMENTS: Checks issued by the Plan
Administrator on account of Allowed Claims shall be null and void if not
negotiated within ninety (90) days from and after the date of issuance thereof.
Requests for reissuance of any check shall be made directly to the Plan
Administrator by the holder of the Allowed Claim with respect to which such
check
44
originally was issued. Any claim in respect of such a voided check shall be made
on or before the later of (a) the first (1st) anniversary of the Effective Date
or (b) one hundred eighty (180) days after the date of issuance of such check.
After such date, all Claims in respect of voided checks shall be discharged and
forever barred and the Post-Confirmation Estate shall retain all moneys related
thereto for distribution to the beneficiaries of the Post-Confirmation Estate in
accordance with the terms of the Plan.
22.6 DISTRIBUTIONS AFTER EFFECTIVE DATE: Distributions made after the
Effective Date to holders of Claims that are not Allowed Claims as of the
Effective Date, but which later become Allowed Claims, shall be deemed to have
been made on the Effective Date.
22.7 FRACTIONAL DOLLARS; DE MINIMIS DISTRIBUTIONS: Notwithstanding
anything contained herein to the contrary, payments of fractions of dollars will
not be made. Whenever any payment of a fraction of a dollar under the Plan would
otherwise be called for, the actual payment made will reflect a rounding of such
fraction to the nearest dollar (up or down), with half dollars being rounded
down. The Plan Administrator will not make any payment of less than One Hundred
Dollars ($100) with respect to any Claim unless a request therefor is made in
writing to the Plan Administrator.
22.8 SET-OFFS: The Plan Administrator may, pursuant to section 553 of
the Bankruptcy Code or applicable nonbankruptcy law, set off against any Allowed
Claim and the distributions to be made pursuant to the Plan on account thereof
(before any distribution is made on account of such Claim), the claims, rights
and causes of action of any nature that the Debtors may hold against the holder
of such Allowed Claim; PROVIDED, HOWEVER, that neither the failure to effect
such a set-off nor the allowance of any Claim hereunder shall constitute a
waiver or release by the Debtors of any such claims, rights and causes of action
that the Debtors may possess against such holder.
22.9 SUBORDINATION RIGHTS: Except as otherwise ordered by the
Bankruptcy Court and Section 11.2 of the Plan, on the Effective Date, each
holder of a Claim shall be deemed to have waived all contractual, legal and
equitable subordination rights which they may have, whether arising under
general principles of equitable subordination, section 510(c) of the Bankruptcy
Code or otherwise, with respect to any and all distributions to be made under
the Plan, and all such contractual, legal or equitable subordination rights that
each holder of a Claim has individually and collectively with respect to any
such distribution made pursuant to this Plan shall be discharged and terminated,
and all actions related to the enforcement of such subordination rights will be
permanently enjoined. If so otherwise ordered, then, all subordination rights
and claims determined by such order related to subordination shall remain valid,
enforceable and unimpaired in accordance with section 510 of the Bankruptcy Code
or otherwise.
22.10 SETTLEMENT OF CLAIMS AND CONTROVERSIES: Pursuant to Bankruptcy
Rule 9019 and in consideration for the distributions and other benefits provided
under the Plan, the provisions of this Plan shall constitute a good faith
compromise and settlement of claims or controversies relating to the
contractual, legal and subordination rights that a holder of a Tricon
45
Claim, Tranche A Lender Claim, Reclamation Claim and Senior Secured Noteholder
Claim may have with respect to any Allowed Claim with respect thereto, or any
distribution to be made on account of such an Allowed Claim. The entry of the
Confirmation Order shall constitute the Bankruptcy Court's approval of the
compromise or settlement of all such claims or controversies and the Bankruptcy
Court's finding that such compromise or settlement is in the best interests of
the Debtors and their respective estates and holders of Claims and is fair,
equitable and reasonable. The provisions of the Plan regarding distributions
with respect thereto apply to all applicable contractual, legal and
subordination rights that holders of such Claims maintain and, from and after
the Effective Date, the holders of such Claims shall be entitled to rely upon
the validity and enforceability of any such provisions in accordance with the
provisions of section 510(a) of the Bankruptcy Code. Nothing in this Section
22.10 is intended to release or settle any claims directly owned by the Senior
Secured Noteholders other than claims against Tricon.
ARTICLE XXIII
CREDITORS' COMMITTEE
23.1 CREDITORS' COMMITTEE COMPOSITION AND TERM: From the Confirmation
Date up to and including the Effective Date, the members of the Creditors'
Committee appointed pursuant to section 1102 of the Bankruptcy Code, and their
duly appointed successors, shall continue to serve. On the Effective Date, the
Creditors' Committee shall be dissolved and the members thereof and the
professionals retained by the Creditors' Committee in accordance with section
1103 of the Bankruptcy Code shall be released and discharged from their
respective fiduciary obligations. The dissolution of the Creditors' Committee
shall not impair the ability of its members to serve on the POC which members
shall be appointed to the POC on the terms and conditions contained in the
Post-Confirmation Estate Agreement.
ARTICLE XXIV
EXECUTORY CONTRACTS AND UNEXPIRED LEASES
24.1 REJECTION OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES: Any
executory contracts or unexpired leases which have not expired by their own
terms on or prior to the Effective Date, which have not been assumed and
assigned or rejected with the approval of the Bankruptcy Court, or which are not
the subject of a motion to assume the same pending as of the Effective Date
shall be deemed rejected by the Debtors in Possession on the Effective Date and
the entry of the Confirmation Order by the Bankruptcy Court shall constitute
approval of such rejections pursuant to sections 365(a) and 1123 of the
Bankruptcy Code.
24.2 CURE OF DEFAULTS FOR ASSUMED EXECUTORY CONTRACTS AND UNEXPIRED
LEASES: Any monetary amounts required as cure payments on each executory
contract and unexpired lease to be assumed pursuant to the Plan shall be
satisfied, pursuant to section 365(b)(1) of the Bankruptcy Code, by payment of
the cure amount in Cash on the Effective Date or upon such other terms and dates
as the parties to such executory contracts or unexpired leases otherwise
46
may agree. In the event of a dispute regarding (a) the amount of any cure
payment, (b) the ability of the Debtors or any assignee to provide "adequate
assurance of future performance" (within the meaning of section 365 of the
Bankruptcy Code) under the contract or lease to be assumed or (c) any other
matter pertaining to assumption, the cure payments required by section 365(b)(1)
of the Bankruptcy Code shall be subject to the jurisdiction of the Bankruptcy
Court and made following the entry of a Final Order resolving such dispute.
24.3 REJECTION DAMAGE CLAIMS: Not later than November 14, 2000, the
Debtors shall file with the Bankruptcy Court a definitive list of executory
contracts and unexpired leases to be assumed by the Debtors pursuant to the
Purchase Agreement as of the Effective Date, and such executory contracts and
unexpired leases shall be deemed assumed as of the Effective Date. If the
rejection of an executory contract or unexpired lease by the Debtors results in
damages to the other party or parties to such contract or lease, any claim for
such damages, if not heretofore evidenced by a filed proof of claim, shall be
forever barred and shall not be enforceable against the Debtors, or its
properties or agents, successors, or assigns, unless a proof of claim is filed
with the Bankruptcy Court and served upon counsel for the Debtors on or before
thirty (30) days after the later to occur of (a) the Confirmation Date and (b)
the date of entry of an order by the Bankruptcy Court authorizing rejection of a
particular executory contract or unexpired lease.
24.4 INDEMNIFICATION AND REIMBURSEMENT OBLIGATIONS: Notwithstanding any
other provision of the Plan to the contrary, the obligations of the Debtors to
indemnify, defend and reimburse the D&O Releasees against and for any
obligations in respect of those claims relating to post-Petition Date actions or
omissions covered by the Plan, pursuant to articles of incorporation (to the
fullest extent permitted under applicable law), codes of regulations, bylaws (to
the fullest extent permitted under applicable law), or specific agreement, or
any combination of the foregoing, shall be deemed assumed by the
Post-Confirmation Estate on the Effective Date without any further action by any
Entity.
ARTICLE XXV
CONDITIONS PRECEDENT TO CONFIRMATION
AND EFFECTIVE DATE OF THE PLAN
25.1 CONDITIONS PRECEDENT TO CONFIRMATION DATE OF THE PLAN: The
occurrence of the Confirmation Date shall be subject to satisfaction of the
following conditions precedent:
(1) The entry of the Confirmation Order in form and substance
satisfactory to the Debtors.
(2) The Bankruptcy Court shall have entered an order providing
that no Reclamation Claims shall be treated as Administrative Expense Claims,
Secured Claims or Priority Non-Tax Claims.
(3) Class 6 shall have voted to accept the Plan.
47
(4) The Sale Transaction or the Alternative Sale Transaction shall
not have been terminated.
25.2 CONDITIONS PRECEDENT TO EFFECTIVE DATE OF THE PLAN: The
occurrence of the Effective Date and the substantial consummation of the Plan
are subject to satisfaction of the following conditions precedent:
(1) CONFIRMATION ORDER: The Confirmation Order shall be in full
force and effect and shall not be subject to a stay.
(2) EXECUTION OF DOCUMENTS; OTHER ACTIONS: All other actions and
documents necessary to implement the Plan shall have been effected or executed,
including the Post-Confirmation Estate Agreement.
(3) SALE TRANSACTION; ALTERNATIVE SALE TRANSACTION: The Debtors
shall have consummated either (i) the Sale Transaction pursuant to and in
accordance with the terms of the McLane Purchase Agreement or (ii) the
Alternative Sale Transaction.
(4) TRICON FUNDING OBLIGATION: Payment of Cash by Tricon to the
Debtors in the amount of the Tricon Funding in accordance with the Plan.
(5) ABILITY TO MEET PROJECTED CASH NEEDS: The Post-Confirmation
Estate shall have sufficient Cash to permit payment of all of its and the Plan
Administrator's projected fees, expenses and wind down costs.
25.3 WAIVER OF CONDITIONS PRECEDENT: To the extent legally permissible,
each of the conditions precedent in Section 25.1 or Section 25.2, may be waived,
in whole or in part, by the Debtors in their sole discretion (and by the Debtors
and Tricon in the case of Sections 25.1(b) and (d) and Sections 25.2(a) and
(c)). Any such waiver of a condition precedent may be effected at any time,
without notice or leave or order of the Bankruptcy Court and without any formal
action other than proceeding as if such condition did not exist.
ARTICLE XXVI
RETENTION OF JURISDICTION
26.1 RETENTION OF JURISDICTION: The Bankruptcy Court shall retain and
have exclusive jurisdiction over any matter arising under the Bankruptcy Code,
arising in or related to the Chapter 11 Cases or the Plan, or that relates to
the following, in each case to the greatest extent permitted by applicable law:
(1) to resolve any matters related to the assumption, assumption
and assignment or rejection of any executory contract or unexpired lease to
which any of the Debtors is a party or with respect to which the Debtors may be
liable and to hear, determine and, if necessary, liquidate, any Claims arising
therefrom, including those matters related to the
48
amendment after the Effective Date of the Plan, to add any executory contracts
or unexpired leases to the list of executory contracts and unexpired leases to
be rejected;
(2) to enter such orders as may be necessary or appropriate to
implement or consummate the provisions of the Plan and all contracts,
instruments, releases, and other agreements or documents created in connection
with the Plan;
(3) to determine any and all motions, adversary proceedings,
applications and contested or litigated matters that may be pending on the
Effective Date or that, pursuant to the Plan, may be instituted by the Plan
Administrator or the Post-Confirmation Estate after the Effective Date;
PROVIDED, HOWEVER, that the Plan Administrator and the Post-Confirmation Estate
shall reserve the right to commence collection actions, actions to recover
receivables and other similar actions in all appropriate jurisdictions;
(4) to ensure that distributions to holders of Allowed Claims are
accomplished as provided herein;
(5) to hear and determine any timely objections to Administrative
Expense Claims or to proofs of Claim and Interests filed, both before and after
the Confirmation Date, including any objections to the classification of any
Claim or Interest, and to allow, disallow, determine, liquidate, classify,
estimate or establish the priority of or secured or unsecured status of any
Claim, in whole or in part;
(6) to enter and implement such orders as may be appropriate in
the event the Confirmation Order is for any reason stayed, revoked, modified,
reversed or vacated;
(7) to issue such orders in aid of execution of the Plan, to the
extent authorized by section 1142 of the Bankruptcy Code;
(8) to consider any modifications of the Plan, to cure any defect
or omission, or reconcile any inconsistency in any order of the Bankruptcy
Court, including the Confirmation Order;
(9) to hear and determine all applications for awards of
compensation for services rendered and reimbursement of expenses incurred prior
to the Confirmation Date;
(10) to hear and determine disputes arising in connection with or
relating to the Plan or the interpretation, implementation, or enforcement of
the Plan or the extent of any Entity's obligations incurred in connection with
or released or exculpated under the Plan;
(11) to issue injunctions, enter and implement other orders or
take such other actions as may be necessary or appropriate to restrain
interference by any Entity with consummation or enforcement of the Plan;
49
(12) to determine any other matters that may arise in connection
with or are related to the Plan, the Disclosure Statement, the Post-Confirmation
Estate Agreement, the Confirmation Order or any contract, instrument, release or
other agreement or document created in connection with the Plan, the Disclosure
Statement, the settlement agreement (between, among others, Tricon and the
Senior Secured Noteholders) to be executed in connection with the Plan or the
Post-Confirmation Estate Agreement;
(13) to hear and determine matters concerning state, local and
federal taxes in accordance with sections 346, 505, and 1146 of the Bankruptcy
Code;
(14) to hear any other matter or for any purpose specified in the
Confirmation Order that is not inconsistent with the Bankruptcy Code;
(15) to hear and determine any matters that may arise in
connection with the Sale Transaction, the Alternative Sale Transaction or any
order of the Bankruptcy Court with respect to either the Sale Transaction or an
Alternative Sale Transaction;
(16) to hear and determine any matters that may arise in
connection with the McLane Purchase Agreement or any order of the Bankruptcy
Court with respect thereto; and
(17) to enter a final decree closing the Chapter 11 Cases.
ARTICLE XXVII
MODIFICATION, REVOCATION, OR WITHDRAWAL OF THE PLAN
27.1 MODIFICATION OF PLAN: The Debtors reserve the right, in accordance
with the Bankruptcy Code and the Bankruptcy Rules, to amend or modify the Plan
at any time prior to the entry of the Confirmation Order. Upon entry of the
Confirmation Order, the Debtors may, upon order of the Bankruptcy Court, amend
or modify the Plan, in accordance with section 1127(b) of the Bankruptcy Code,
or remedy any defect or omission or reconcile any inconsistency in the Plan in
such manner as may be necessary to carry out the purpose and intent of the Plan.
A holder of a Claim that has accepted the Plan shall be deemed to have accepted
the Plan as modified if the proposed modification does not materially and
adversely change the treatment of the Claim of such holder.
27.2 REVOCATION OR WITHDRAWAL:
(1) The Plan may be revoked or withdrawn prior to the Confirmation
Date by the Debtors.
(2) If the Plan is revoked or withdrawn prior to the Confirmation
Date, then the Plan shall be deemed null and void. In such event, nothing
contained herein shall be deemed to constitute a waiver or release of any claims
by the Debtors or any other Entity or to prejudice in any manner the rights of
the Debtors or any other Entity in any further proceedings involving the
Debtors.
50
ARTICLE XXVIII
MISCELLANEOUS PROVISIONS
28.1 DISALLOWANCE OF CLAIMS: All Claims held by Entities against whom
the Debtors have or have asserted a cause of action under sections 542, 543,
550, 551 or 552 of the Bankruptcy Code, or that is a transferee of a transfer
avoidable under sections 544, 545, 547, 548, 549 or 553 of the Bankruptcy Code
shall be deemed disallowed pursuant to section 502(d) of the Bankruptcy Code,
and holders of such Claims may not vote to accept or reject the Plan, both
consequences to be in effect until such time as such causes of action against
that Entity have been settled or a Final Order entered and all sums due the
Debtors by that Entity are turned over to the Debtors or the Post-Confirmation
Estate.
Any and all Claims filed with the Bankruptcy Court after the Bar Date
shall be disallowed and holders of such Claims may not vote to accept or reject
the Plan.
28.2 TITLE TO ASSETS: Except as otherwise provided by the Plan, on the
Effective Date, title to all assets and properties encompassed by the Plan shall
vest in the Post-Confirmation Estate in accordance with section 1141 of the
Bankruptcy Code.
28.3 INJUNCTION: Except as otherwise expressly provided in the Plan,
all Entities (other than Governmental Units) who have held, hold or may hold
Claims or Interests are permanently enjoined, from and after the Effective Date,
from (a) commencing or continuing in any manner any action or other proceeding
of any kind on account of any such Claim or Interest against the Debtors, the
Plan Administrator, the Post-Confirmation Estate or any of their professionals,
(b) the enforcement, attachment, collection or recovery by any manner or means
of any judgment, award, decree or order against the Debtors, the Plan
Administrator, the Post-Confirmation Estate or any of their professionals, (c)
creating, perfecting, or enforcing any encumbrance of any kind against the
Debtors, the Plan Administrator, the Post-Confirmation Estate or any of their
professionals or against the property or interests in property of the Debtors,
the Plan Administrator, the Post-Confirmation Estate or their professionals and
(d) asserting any defense or right of setoff, subrogation or recoupment of any
kind against any obligation due from the Debtors, the Plan Administrator, the
Post-Confirmation Estate or their professionals or against the property or
interests in property of the Debtors, the Plan Administrator, the
Post-Confirmation Estate or their professionals with respect to any such Claim
or Interest. This injunction shall not preclude any cause of action against any
Entities not included within the described injunction.
28.4 INJUNCTION AS TO TRICON, BKC AND PEPSICO., INC.: Except as
otherwise provided in the Plan, from and after the Effective Date, the Debtors
and Creditors (other than Governmental Units) shall be enjoined from asserting
any Claims (i) against Tricon regarding matters that occur prior to the
Effective Date, including, without limitation, any Claims relating to the
Replacement Collateral Obligations, the DIP Facility or the Tricon Prepetition
Receivable, (ii) against BKC regarding the Replacement Collateral Obligations
and the DIP Facility and
51
(iii) against PepsiCo., Inc. with respect to any further funding obligations
under the DIP Facility. This injunction does not apply to, with respect to BKC,
(1) the Bankruptcy Causes of Action or other causes of action reserved by the
Debtors in accordance with Section 17.7 of the Plan or any postpetition
contractual obligations, other than the DIP Facility and the Replacement
Collateral Obligations (including without limitation BKC's obligations under the
BKC Transition Agreement dated May 8, 2000 and approved by the Bankruptcy Court
and otherwise with respect to the reconciliation of opening inventory balances
and BKC's obligations, if any, in respect thereof), and (2) any and all claims
and causes of action of Tricon against BKC, including, but not limited to,
claims arising under that certain letter agreement, dated May 9, 2000, as
amended and restated on May 16, 2000 (the "BKC/Tricon Letter Agreement");
provided, however, that Tricon will have no claim against BKC (y) for any
"Residual Share" (as defined in paragraph 5 of the BKC/Tricon Letter Agreement,
or (z) arising out of the second sentence of paragraph 9 of the BKC/Tricon
Letter Agreement. This injunction also does not apply to, with respect to
Tricon, any postpetition contractual obligations other than the DIP Facility and
Replacement Collateral Obligations; provided, however, that this injunction
shall not apply to any and all claims and causes of action of BKC against
Tricon.
28.5 TERM OF EXISTING INJUNCTIONS OR STAYS: Unless otherwise provided,
all injunctions or stays provided for in the Chapter 11 Cases pursuant to
sections 105, 362 or 525 of the Bankruptcy Code, or otherwise, and in existence
on the Confirmation Date, shall remain in full force and effect until the
Effective Date.
28.6 INJUNCTION AS TO D&O RELEASEES: As of the Effective Date, all
Entities (other than Governmental Units) are permanently enjoined from
commencing or continuing in any manner, any action or proceeding against any of
the D&O Releasees, whether directly, derivatively, on account of or respecting
any claim, debt, right or cause of action based in whole or in part upon any act
or omission, transaction, agreement, event or other occurrence taking place
during the period commencing on the Petition Date and ending on the Effective
Date. For the avoidance of doubt, this injunction does not apply to prepetition
claims or liabilities (i) in respect of any loan, advance or similar payment by
the Debtors or their affiliates to any such Entity, or (ii) in respect of any
contractual obligation owed by such Entity to the Debtors or their affiliates.
For the avoidance of doubt, the D&O Releasees are intended third party
beneficiaries of this Plan.
52
28.7 LIMITED RELEASES BY AND OF CERTAIN PARTIES: Except as otherwise
specifically provided in the Plan, for good and valuable consideration,
including, but not limited to the Tricon Funding, (a) Tricon shall be released
from any and all Claims or causes of action of any kind that belong to the
Debtors or their estates that arose prior to the Effective Date including, but
not limited to, Claims in respect of the Replacement Collateral Obligations, the
DIP Facility and the Tricon Prepetition Receivable, (b) BKC shall be released
only from any Claims in respect of the Replacement Collateral Obligations and
the DIP Facility and (c) PepsiCo., Inc. shall be released only from any further
funding obligations under the DIP Facility. This release does not apply to, with
respect to BKC, (1) the Bankruptcy Causes of Action or other causes of action
reserved by the Debtors in accordance with Section 17.7 of the Plan or any
postpetition contractual obligations, other than the DIP Facility and the
Replacement Collateral Obligations (including without limitation BKC's
obligations under the BKC Transition Agreement dated May 8, 2000 and approved by
the Bankruptcy Court and otherwise with respect to the reconciliation of opening
inventory balances and BKC's obligations, if any, in respect thereof) and (2)
any and all claims and causes of action of Tricon against BKC, including, but
not limited to, claims arising under the BKC/Tricon Letter Agreement; provided,
however, that Tricon will have no claim against BKC (y) for any "Residual Share"
(as defined in paragraph 5 of the BKC/Tricon Letter Agreement), or (z) arising
out of the second sentence of paragraph 9 of the BKC/Tricon Letter Agreement.
This release also does not apply to, with respect to Tricon, Claims by the
Debtors against Tricon system franchisees, including, without limitation, Golden
West Tacos, Bankruptcy Causes of Action or other causes of action reserved by
the Debtors in accordance with Section 17.7 of the Plan or any postpetition
contractual obligations other than the DIP Facility and Replacement Collateral
Obligations; provided, however, that this release shall not apply to any and all
claims and causes of action of BKC against Tricon.
28.8 EXCULPATION: The Debtors, the Plan Administrator, the
Post-Confirmation Estate, the D&O Releasees, the Senior Secured Noteholders in
their capacity as Senior Secured Noteholders, the Ad Hoc Senior Secured
Noteholder Committee, the Ad Hoc Reclamation Committee, the Creditors' Committee
and its members (each in their capacity as members of such Committees), and
Entities employed pursuant to sections 327 and 1103 of the Bankruptcy Code
(acting in such capacity) shall neither have nor incur any liability to any
Entity for any act taken or omitted to be taken in connection with or related to
the formulation, preparation, dissemination, implementation, administration,
confirmation or consummation of the Plan, the Disclosure Statement or any
contract, instrument, release or other agreement or document created or entered
into in connection with the Plan, including the Post-Confirmation Estate
Agreement, or any other act taken or omitted to be taken in connection with the
Chapter 11 Cases.
28.9 PRESERVATION OF RIGHTS OF ACTION: Except as otherwise provided in
the Plan or in any contract, instrument, release or other agreement entered into
in connection with the Plan, in accordance with section 1123(b) of the
Bankruptcy Code, the Post-Confirmation Estate shall retain sole and exclusive
authority to enforce any claims, rights or causes of action that the Debtors or
their chapter 11 estates may hold against any Entity, including any Bankruptcy
Causes of Action as set forth in Section 17.7 herein. The Plan Administrator may
pursue such retained rights or causes of action, as appropriate, in accordance
with the best interests of the Post-Confirmation Estate.
53
28.10 SURRENDER OF NOTES: Except as otherwise ordered by the Bankruptcy
Court, in order to receive any distribution under the Plan, each holder of a
Secured Lender Claim or an Unsecured Note issued under an indenture will be
required to surrender all of its notes to the appropriate indenture trustee for
cancellation. Failure to comply with such requirements will bar a holder from
receiving any distribution under the Plan. Notwithstanding the foregoing, all
such notes shall be deemed surrendered, canceled and of no further force or
effect as of the Effective Date, whether or not such notes are delivered to the
appropriate indenture trustee.
The manner and procedure to be followed for surrendering notes and for
providing necessary affidavits and bonds shall be prescribed by the indenture
trustees, upon reasonable notices sent to all holders of such notes.
28.11 SURVIVAL OF CERTAIN TERMS OF INDENTURES: Notwithstanding the
termination of the indentures and notes issued under any indenture, the
provisions of the indentures governing the relationships of the indenture
trustee and their respective holders of notes, including those provisions
relating to distributions, the indenture trustees' rights to payment, liens on
property to be distributed to holders of such notes, and the indenture trustees'
rights of indemnity, if any, shall not be affected by the confirmation of the
Plan.
28.12 PAYMENT OF STATUTORY FEES: All fees payable pursuant to 28
U.S.C.ss.1930, as determined by the Bankruptcy Court at the Confirmation
Hearing, shall be paid on and after the Effective Date from the
Post-Confirmation Estate to the extent required by applicable law.
28.13 POST-EFFECTIVE DATE FEES AND EXPENSES: From and after the
Effective Date, the Post-Confirmation Estate shall, in the ordinary course of
business and without the necessity for any approval by the Bankruptcy Court, pay
the reasonable professional fees and expenses incurred by the Post-Confirmation
Estate related to implementation and consummation of the Plan.
28.14 SECTION 1146 EXCEPTION: Pursuant to section 1146(c) of the
Bankruptcy Code, the issuance, transfer or exchange of any security under the
Plan, or the making or delivery of an instrument of transfer under the Plan, the
Sale Transaction or the Alternative Sale Transaction, may not be taxed under any
law imposing a stamp tax or similar tax.
28.15 SEVERABILITY: The provisions of this Plan shall not be severable
unless such severance is agreed to by the Debtors and such severance would
constitute a permissible modification of the Plan pursuant to section 1127 of
the Bankruptcy Code.
28.16 CONFLICTS: Except as set forth below, to the extent that any
provision of the Disclosure Statement, the Post-Confirmation Estate Agreement,
the DIP Financing Order, or the Confirmation Order (or any exhibits, schedules,
appendices, supplements or amendments to the foregoing) conflict with or are in
any way inconsistent with the terms of the Plan, the Plan shall govern and
control. Notwithstanding the foregoing, nothing contained in the Plan shall be
deemed to relieve the Debtors of their respective obligations under the
documents executed by and among the Debtors and McLane in connection with the
Sale Transaction.
54
28.17 GOVERNING LAW: Except to the extent that the Bankruptcy Code or
other federal law is applicable, or to the extent that an exhibit hereto or
document contained in the Plan Supplement provides otherwise, the rights, duties
and obligations arising under this Plan shall be governed by, and construed and
enforced in accordance with, the Bankruptcy Code and, to the extent not
inconsistent therewith, the laws of the State of Delaware without giving effect
to principles of conflicts of laws.
28.18 NOTICES: All notices, requests, and demands to or upon the
Debtors or the Plan Administrator to be effective shall be in writing, including
by facsimile transmission, and, unless otherwise expressly provided herein,
shall be deemed to have been duly given or made when actually delivered to all
of the following or, in the case of notice by facsimile transmission, when
received by all of the following, addressed as follows or to such other
addresses as filed with the Bankruptcy Court.
AmeriServe Food Distribution, Inc.
c/o AFD Fund
P.O. Box 9016
Addison, Texas 75001-9016
Attention: Plan Administrator
Telecopier: (972) 361-3552
Telephone: (972) 361-3500
With a copy to:
Kirkland & Ellis
200 East Randolph
Chicago, Illinois 60601
Attention: James H.M. Sprayregen, Esq.
Telecopier: (312) 861-2200
Telephone: (312) 861-2000
-and-
Pachulski, Stang, Ziehl, Young & Jones PC
919 North Market Street, 16th Floor
Wilmington, Delaware 19801
Attention: Laura Davis Jones, Esq.
Telecopier: (302) 652-4200
Telephone: (302) 652-4100
28.19 CLOSING OF CASES: The Plan Administrator shall, promptly upon the
full administration of the Chapter 11 Cases, file with the Bankruptcy Court all
documents required by Bankruptcy Rule 3022 and any applicable order of the
Bankruptcy Court.
55
28.20 SECTION HEADINGS: The section headings contained in this Plan are
for reference purposes only and shall not affect in any way the meaning or
interpretation of the Plan.
56
Dated: Dallas, Texas
______________, 2000
AMERISERVE FOOD DISTRIBUTION, INC.
DEBTOR AND DEBTOR IN POSSESSION
By:_____________________________________________
Name: Kevin J. Rogan
Title: Senior Vice-President and General Counsel
AMERISERVE TRANSPORTATION, INC.
DEBTOR AND DEBTOR IN POSSESSION
By:_____________________________________________
Name: Kevin J. Rogan
Title: Vice-President and Assistant Secretary
ASNSC, INC.
DEBTOR AND DEBTOR IN POSSESSION
By:_____________________________________________
Name: Kevin J. Rogan
Title: Senior Vice-President and Secretary
CHICAGO CONSOLIDATED CORPORATION
DEBTOR AND DEBTOR IN POSSESSION
By:_____________________________________________
Name: Kevin J. Rogan
Title: Vice-President
DELTA TRANSPORTATION, LTD.
DEBTOR AND DEBTOR IN POSSESSION
By:_____________________________________________
Name: Kevin J. Rogan
Title: Vice-President and Assistant Secretary
HOLBERG WAREHOUSE PROPERTIES, INC.
DEBTOR AND DEBTOR IN POSSESSION
By:_____________________________________________
Name: Kevin J. Rogan
Title: Vice-President
NAVC CORP.
DEBTOR AND DEBTOR IN POSSESSION
By:_____________________________________________
Name: Kevin J. Rogan
Title: Vice-President
NEBCO EVANS HOLDING COMPANY
DEBTOR AND DEBTOR IN POSSESSION
By:_____________________________________________
Name: Kevin J. Rogan
Title: Senior Vice-President, General Counsel
and Secretary
NORTH AMERICAN VANTIX CORP.
DEBTOR AND DEBTOR IN POSSESSION
By:_____________________________________________
Name: Kevin J. Rogan
Title: Secretary
NORTHLAND TRANSPORTATION SERVICES, INC.
DEBTOR AND DEBTOR IN POSSESSION
By:_____________________________________________
Name: Kevin J. Rogan
Title: Vice-President and Assistant Secretary
PRO SOURCE MEXICO HOLDINGS, INC.
DEBTOR AND DEBTOR IN POSSESSION
By:_____________________________________________
Name: Kevin J. Rogan
Title: Vice-President and Assistant Secretary
PSC SERVICES OF FLORIDA, INC.
DEBTOR AND DEBTOR IN POSSESSION
By:_____________________________________________
Name: Kevin J. Rogan
Title: Vice-President and Secretary
PSD TRANSPORTATION SERVICES, INC.
DEBTOR AND DEBTOR IN POSSESSION
By:_____________________________________________
Name: Kevin J. Rogan
Title: Senior Vice-President and Secretary
VANTIX LOGISTICS, LTD.
By:_____________________________________________
Name: Kevin J. Rogan
Title: Vice-President
58
SCHEDULE 1.168
SUBSIDIARIES OF TRICON
Name of Subsidiary State or Country of Incorporation
A & M Food Services, Inc. Nevada
Calny, Inc. Delaware
Changsha KFC Co., Ltd. China
Chengdu KFC China
Chongqing KFC Co., Ltd. China
Dalian Kentucky Fried Chicken Co., Ltd. China
El KrAm, Inc. Iowa
Glenharney Insurance Company Vermont
Guangdong KFC Co., Ltd. China
Hangzhou KFC China
Kentucky Fried Chicken (Great Britain) Limited United Kingdom
Kentucky Fried Chicken Beijing Co., Ltd. China
Kentucky Fried Chicken Corporate Holdings Ltd. Delaware
Kentucky Fried Chicken Corporation Delaware
Kentucky Fried Chicken de Mexico, S.A. de C.V. Mexico
Kentucky Fried Chicken Espana, S.L. Spain
Kentucky Fried Chicken Global B.V. Netherlands
Kentucky Fried Chicken International Holdings, Inc. Delaware
Kentucky Fried Chicken Japan Ltd. Japan
Kentucky Fried Chicken of California, Inc. Delaware
Kentucky Fried Chicken of Southern California, Inc. California
Kentucky Fried Chicken Worldwide B.V. Netherlands
KFC Corporation Delaware
KFC Enterprises, Inc. Delaware
KFC France SAS France
KFC International (Thailand) Ltd. Thailand
KFC Management Pte. Ltd. Singapore
KFC National Management Company Delaware
KFC Pty. Ltd. Australia
KFCC/TRICON Holdings Ltd. Canada
Nanjling KFC Co. Ltd. China
PCNZ Investments Ltd. Mauritius
PCNZ Ltd. Mauritius
PepsiCo Eurasia Limited Delaware
PHM de Mexico S.A. de C.V. Mexico
Pizza Belgium B.V.B.A. Belgium
Pizza France S.N.C. France
Pizza Gida Isletmeleri A.S. Turkey
Pizza Hut (U.K.) Ltd. United Kingdom
Pizza Hut International (UK) Ltd. United Kingdom
60
Name of Subsidiary State or Country of Incorporation
Pizza Hut International, LLC Delaware
Pizza Hut Korea Co., Ltd. Korea
Pizza Hut Mexicana S.A. de C.V. Mexico
Pizza Hut of America, Inc. Delaware
Pizza Hut of Puerto Rico, Inc. Delaware
Pizza Hut Singapore Pte. Ltd. Singapore
Pizza Hut West, Inc. California
Pizza Hut, Inc. California
Pizza Huts of the Northwest, Inc. Minnesota
Pizza Management, Inc. Texas
Qingdao Kentucky Fried Chicken Co. Ltd. China
Red Raider Pizza Company Delaware
Restaurant Holdings Ltd. United Kingdom
SEPSA S.N.C. France
Shanghai Kentucky Fried Chicken China
Shanghai Pizza Hut Co. Ltd. China
Shenyang KFC Co., Ltd. China
Shenzhen KFC Co., Ltd. China
Spizza 30 S.A.S. France
Suzhou KFC China
Taco Bell Corp. California
Taco Bell of America, Inc. Delaware
Taco Bell of California, Inc. California
Taco Caliente, Inc. Arizona
Taco Del Sur, Inc. Georgia
Taco Enterprises, Inc. Michigan
TB Holdings California
TBLD Corp. California
Tenga Taco, Inc. Florida
Tianjin KFC Co. China
Tricon (China) Investment Company, Ltd. China
Tricon (Shanghai) Consulting Co., Ltd. China
Tricon Global Restaurants (Canada), Inc. Canada
Tricon Global Restaurants of Puerto Rico, Inc. Delaware
Tricon Global Restaurants S.A. de C.V. Mexico
Tricon International Participations S.a.r.l. Luxembourg
Tricon Restaurant Services Group, Inc. Delaware
TRICON Restaurants (Taiwan) Co., Ltd. Taiwan
TRICON Restaurants Australia Pty Ltd. Australia
Tricon Restaurants International (India) Pvt. Ltd. India
Tricon Restaurants International Ltd. & Co. K.G. Germany
Name of Subsidiary State or Country of Incorporation
Tricon Restaurants International, Ltd. Cayman Islands
Tricon Restaurants Poland Sp.Zo.o. Poland
Tricon Restaurants South Africa Pty. Ltd. South Africa
Tricon Singapore Holdings Pte. Ltd. Singapore
Upper Midwest Pizza Hut, Inc. Delaware
Von Karman Leasing Corp. Delaware
Wuhan KFC Co. Ltd. China
Wuxi KFC Co., Ltd. China
Xiamen - KFC Co., Ltd. China