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Exhibit 10.1
AGREEMENT TERMINATING
ADMINISTRATIVE CLAIMS GUARANTY
This AGREEMENT (the "Agreement") is entered into as of
January 25, 2007 (the "Effective Date"), by and among the Post
Confirmation Trust (the "PCT") and Core-Mark Holding Company, Inc.
("Core-Mark" or the "Guarantor"). Each of the signatories hereto
are referred to hereinafter collectively as the "Parties" or
individually as a "Party."
RECITALS
A. The PCT and Core-Mark are parties to that certain Amended and
Restated Administrative Claims Guaranty Agreement, entered into as
of August 31, 2004 (the "Administrative Guaranty").
B. Pursuant to (i) the Third Amended and Revised Plan of
Reorganization of Fleming Companies, Inc. and its Filing
Subsidiaries Under Chapter 11 of the United States Bankruptcy Code
(the "Plan"), which was confirmed by the United States Bankruptcy
Court for the District of Delaware (the "Bankruptcy Court"), in the
jointly administered chapter 11 cases captioned In re Fleming
Companies, Inc., et al. , Ch. 11 Case No. 03-10945 (MFW),
and (ii) the PCT Agreement dated August 19, 2004
(particularly the waterfall provisions contained in Article IV. 4.
4. thereof), the PCT is required to reimburse Core-Mark for
payments that it has made under the Administrative Guaranty before
making any cash distributions to unsecured creditors.
C. The PCT does not realistically foresee any circumstance under
which Core-Mark would ever be required to pay any amounts under the
Administrative Guaranty, and as such, the Administrative Guaranty
is unnecessary to ensure that the PCT can satisfy all
Administrative Claims, as defined in the Plan, including the
Relevant Administrative Claims.
D. Section 3.4 of the Administrative Guaranty provides:
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No amendment, modification, termination or waiver of any
provision of this Guaranty, and no consent to any departure by
Guarantor of the PCT therefrom, shall in any event be effective
without the prior written concurrence of the Guarantor, the PCT and
the RCT. Any such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which it is
given.
E. The RCT has been dissolved in accordance with the Order
Granting Joint Motion of Reclamation Creditors’ Trust and
Post-Confirmation Trust to Approve Agreement Concerning Winddown
and Dissolution of Reclamation Creditors’ Trust, entered by
the Bankruptcy Court on August 23, 2006 [Docket
No. 13244].
F. Core-Mark and the PCT have agreed to terminate the
Administrative Guaranty.
G. By motion, dated December 4, 2006 (the
"Motion") [Docket No. 13383], the PCT sought entry of an order
in aid of implementation of the Plan.
H. In the Motion, the PCT sought entry of an order
(i) approving its $2.4 billion estimate of allowed general
unsecured claims, with a corresponding $164 million reserve for
disputed claims; and (ii) authorizing a cash distribution of
approximately $57.5 million, which results from a 2 1/2 cent
distribution on every dollar of Allowed General Unsecured Claims
(as defined in the Plan). Additionally, although the PCT believes
that, pursuant to Section 3.4 of the Administrative Guaranty
quoted above, it can terminate the Administrative Guaranty without
having to obtain approval from the Bankruptcy Court, out of an
abundance of caution, pursuant to the Motion, the PCT also sought
an order authorizing and directing a release of the Administrative
Guaranty.
I. Termination of the Administrative Guaranty will facilitate
the distributions contemplated in the Motion.
J. By order, dated January 23, 2007 [Docket
No. 13410], the Bankruptcy Court approved the Motion in all
respects.
NOW, THEREFORE, IT IS HEREBY AGREED, by and among the
undersigned, as follows:
ARTICLE I
TERMINATION OF ADMINISTRATIVE GUARANTY
Section 1.1. Termination of Guaranty . As of the
Effective Date, the Administrative Guaranty is terminated.
Section 1.2. Effect of Termination .
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