IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
IN RE: Chapter 11
FRUEHAUF TRAILER CASE NO. 96-1563 (PJW)
CORPORATION,
MARYLAND SHIPBUILDING &
DRYDOCK COMPANY, F.G.R., INC.,
JACKSONVILLE SHIPYARDS, INC.,
FRUEHAUF INTERNATIONAL, Jointly Administered
LIMITED, FRUEHAUF CORPORATION,
THE MERCER CO., DEUTSCHE
FRUEHAUF HOLDING CORPORATION,
MJ HOLDINGS, INC., and
E. L. DEVICES, INC.,
Debtors.
---------------------------------------
DEBTORS' FIRST AMENDED JOINT PLAN OF
REORGANIZATION DATED JUNE 24, 1998
---------------------------------------
i
TABLE OF CONTENTS
Page
ARTICLE 1
DEFINITIONS 2
Rules of Interpretation 2
ARTICLE 2
DESIGNATION OF CLAIMS AND INTERESTS 7
2.1 Summary 8
ARTICLE 3
TREATMENT OF UNCLASSIFIED CLAIMS 8
3.1 Administrative Claims 8
(a) General 8
(b) Payment of Statutory Fees 9
(c) Bar Date for Administrative Claims 9
(i) General Provisions 9
(ii) Professionals 9
(iii)Tax Claims 9
3.2 Treatment of Pre-Petition Tax Claims 10
ARTICLE 4
CLASSIFICATION AND TREATMENT OF CLASSIFIED CLAIMS AND INTERESTS 10
4.1 Class 1 - Priority Claims 10
4.2 Class 2 - Secured Claims of Holders of Senior Notes 11
4.3 Class 3 - Secured Claims Other Than Claims of Holders
of Senior Notes 11
4.4 Class 4 - General Unsecured Claims 11
4.5 Class 5 - Old Common Stock 11
4.6 Class 6 - Old Warrants 12
4.7 Class 7 - Securities Claims 12
ARTICLE 5
ACCEPTANCE OR REJECTION OF THE PLAN 12
5.1 Voting Classes 12
5.2 Presumed Acceptance of Plan 12
5.3 Presumed Rejection of Plan 12
ARTICLE 6
MEANS FOR EXECUTION AND IMPLEMENTATIONOF THE PLAN 12
6.1 Funding of the Distribution Fund 12
6.2 Transfer of Wabash Securities to Indenture Trustee 12
6.3 Change of Plan Sponsorship for the Management and Union
Plans 12
6.4 Transfer of Hogan's Creek Property and Picketville Property 13
ii
6.5 Foreclosure by Holders of Senior Notes 13
6.6 Transfer by Debtors of Assets to the Liquidating Trust 13
6.7 Ratification of Liquidating Trust Agreement 13
(a) Powers and Duties 13
(b) Compensation of Trustee 13
(c) Limitation of Liability 13
(d) Indemnity 13
(e) Right to Hire Professionals 14
(f) Right to Pursue all Causes of Action of the Debtors 14
(g) Treatment of Distribution Fund Surplus 14
(h) Limitation on the Trustee 14
(i) Distribution of Trust Certificates 14
(j) Tax Treatment of the Liquidating Trust 14
(k) Termination of Liquidating Trust 15
6.8 Dissolution of Corporate Entities 15
6.9 Cancellation of Old Securities 15
6.10 Registration Exemption for Debtors' Wabash Securities and
Beneficial Interests in the Liquidating Trust 15
6.11 Corporate Action 15
6.12 Preservation of Rights of Action 15
6.13 Objections to Claims 16
6.14 Exemption from Stamp and Similar Taxes 16
ARTICLE 7
FUNDING AND METHODS OF DISTRIBUTION ANDPROVISIONS FOR
TREATMENT OF DISPUTED CLAIMS 16
7.1 Funding of Distributions Under the Plan 16
7.2 Cash Distributions 16
7.3 Distribution Procedures 16
7.4 Distributions to Holders of Allowed Administrative
Expense Claims, Pre-Petition Tax Claims and Class 1
Priority Claims 16
7.5 (a) Distributions to Holders of Allowed Class 2 Claims 17
(b) Certification of Claims by Indenture Trustee 17
(c) Surrender and Cancellation of Old Securities 17
(d) Ballot Record Date; Distributions to Holders of
Senior Notes 17
7.6 Disputed Claims 18
7.7 Delivery of Distributions and Undeliverable or
Unclaimed Distributions 18
(a) Delivery of Distributions in General 18
(b) Undeliverable Distributions 18
(i) Holding and Investment of Undeliverable Property 18
(ii) Distribution of Undeliverable Property After
it Becomes Deliverable and Failure to Claim
Undeliverable Property 18
7.8 Distributions on Account of Unsecured Class 4 Claims 18
7.9 De Minimis Distributions 19
7.10 Failure to Negotiate Checks 19
7.11 Compliance with Tax Requirements 19
7.12 Setoffs 19
7.13 Fractional Interests 19
iii
ARTICLE 8
TREATMENT OF EXECUTORY CONTRACTSAND UNEXPIRED LEASES 19
8.1 Rejection of All Executory Contracts and Leases Not Assumed19
8.2 Bar Date for Filing of Rejection Claims 19
ARTICLE 9
EFFECTS OF PLAN CONFIRMATION 20
9.1 Transfers to Liquidating Trust are Free and Clear
of Claims Against Debtors 20
9.2 No Liability for Solicitation or Participation 20
9.3 Limitation of Liability 20
9.4 Other Documents and Actions 20
9.5 Post-Consummation Effect of Evidences of Claims or Interests 20
9.6 Term of Injunctions or Stays 21
ARTICLE 10
CONFIRMABILITY OF PLAN AND CRAMDOWN 21
ARTICLE 11
RETENTION OF JURISDICTION 21
ARTICLE 12
MISCELLANEOUS PROVISIONS 22
12.1 Fractional Dollars 22
12.2 Modification of Plan 22
12.3 Withdrawal of Plan 22
12.4 Governing Law 23
12.5 Time 23
12.6 Payment Dates 23
12.7 Headings 23
12.8 Successors and Assigns 23
12.9 Severability of Plan Provisions 23
12.10 No Admissions 23
12.11 Dissolution of Unsecured Creditors' Committee 23
12.12 Notices 23
1
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
IN RE: Chapter 11
FRUEHAUF TRAILER CASE NO. 96-1563 (PJW)
CORPORATION, MARYLAND SHIPBUILDING
& DRYDOCK COMPANY, F.G.R., INC.,
JACKSONVILLE SHIPYARDS, INC.,
FRUEHAUF INTERNATIONAL, Jointly Administered
LIMITED, FRUEHAUF CORPORATION,
THE MERCER CO., DEUTSCHE
FRUEHAUF HOLDING CORPORATION,
MJ HOLDINGS, INC., and
E. L. DEVICES, INC.,
Debtors.
DEBTORS' FIRST AMENDED JOINT PLAN OF
REORGANIZATION DATED JUNE 24, 1998
Fruehauf Trailer Corporation, Maryland Shipbuilding &
Drydock Company, F.G.R., Inc., Jacksonville Shipyards, Inc.,
Fruehauf International Limited, Fruehauf Corporation, The Mercer
Co., Deutsche-Fruehauf Holding Corporation, MJ Holdings, Inc.,
and E.L. Devices, Inc. (collectively, the "Debtors"), as debtors
and debtors-in-possession, propose this First Amended Joint Plan
of Reorganization dated June 24, 1998 (the "Plan") pursuant to
section 1121(a) of Title 11 of the United States Code for the
resolution of the Debtors' outstanding creditor claims and equity
interests. Reference is made to the Debtors' Disclosure
Statement (the "Disclosure Statement") for a discussion of the
Debtors' history, business, properties and results of operations,
and for a summary of this Plan and certain related matters.
All holders of Claims and Interests are encouraged to read
the Plan and the Disclosure Statement in their entirety before
voting to accept or reject this Plan. No materials, other than
the Disclosure Statement and any exhibits and schedules attached
thereto or referenced therein, have been approved by the Debtors
for use in soliciting acceptances or rejections of this Plan.
2
ARTICLE 1
DEFINITIONS
Rules of Interpretation. As used herein, the
following terms have the respective meanings specified below,
and such meanings shall be equally applicable to both the
singular and plural, and masculine and feminine, forms of the
terms defined. The words "herein," "hereof," "hereto,"
"hereunder" and others of similar import, refer to the Plan as
a whole and not to any particular section, subsection or
clause contained in the Plan. Captions and headings to
articles, sections and exhibits are inserted for convenience
of reference only and are not intended to be part of or to
affect the interpretation of the Plan. The rules of
construction set forth in section 102 of the Bankruptcy Code
shall apply. In computing any period of time prescribed or
allowed by the Plan, the provisions of Bankruptcy Rule
9006(a) shall apply. Any capitalized term used but not
defined herein shall have the meaning ascribed to such term
in the Bankruptcy Code. In addition to such other terms as
are defined in other sections of the Plan, the following
capitalized terms have the following meanings when used in the
Plan.
1.1 "Administrative Claim" means a Claim for costs
and expenses of administration allowed under section 503(b) of
the Bankruptcy Code and referred to in section 507(a)(1) of
the Bankruptcy Code.
1.2 "Affiliate" means (a) an entity that directly
or indirectly owns, controls or holds with power to vote,
twenty percent or more of the outstanding voting securities of a
Debtor, other than an entity that holds such securities
(i) in a fiduciary or agency capacity without sole
discretionary power to vote such securities or (ii) solely to
secure a debt, if such entity has not in fact exercised such
power to vote, or (b) a corporation twenty percent or more
of whose outstanding voting securities are directly or
indirectly owned, controlled or held with power to vote, by a
Debtor, or by an entity that directly or indirectly owns,
controls or holds with power to vote, twenty percent or more
of the outstanding voting securities of a Debtor, other than
an entity that holds such securities (i) in a fiduciary
or agency capacity without sole discretionary power to vote
such securities or (ii) solely to secure a debt, if such
entity has not in fact exercised such power to vote.
1.3 "Allowed Claim" means a Claim that is (1) not
a Disputed Claim or (b) a Claim that has been allowed by a
Final Order.
1.4 "Ballots" means the written Ballots for acceptance
or rejection of the Plan.
1.5 "Ballot Record Date" means , 1998.
1.6 "Ballot Return Date" means 5:00 p.m. Eastern
Daylight Time on , 1998, unless and to the
extent such date is extended by the Debtors in accordance with
the Disclosure Statement.
1.7 "Bankruptcy Code" or "Code" means Title 11 of
the United States Code as now in effect or hereafter amended.
1.8 "Bankruptcy Court" means the United States
Bankruptcy Court for the District of Delaware, which presides
over this proceeding, or if necessary, the United States
District Court for said District having original jurisdiction
over this case.
1.9 "Bankruptcy Rules" means, collectively (a) the
Federal Rules of Bankruptcy Procedure, and (b) the local rules
of the Bankruptcy Court, as applicable from time to time
in the Reorganization Case.
3
1.10 "Beneficial Interestholders" shall mean the holders
of the Class A Beneficial Interests and the holders of the
Class B Beneficial Interests.
1.11 "Bondholders' Committee" means the Unofficial
Committee of Senior Secured Noteholders.
1.12 "Business Day" means any day, other than a
Saturday, Sunday or "legal holiday" (as defined in
Bankruptcy Rule 9006(a)).
1.13 "Cash" means cash, wire transfer, certified check,
cash equivalents and other readily marketable
securities or instruments, including, without limitation,
readily marketable direct obligations of the United States of
America, certificates of deposit issued by banks, and
commercial paper of any Person, including interests accrued or
earned thereon, or a check from the Liquidating Trust.
1.14 "Claim" means any right to payment from the
Debtors arising before the Confirmation Date, whether or not
such right is reduced to judgment, liquidated,
unliquidated, fixed, contingent, matured, unmatured,
contested, uncontested, legal, equitable, secured, or
unsecured; or any right to an equitable remedy for breach of
performance if such breach gives rise to a right of payment
from the Debtors prior to the Confirmation Date, whether or
not such right to an equitable remedy is reduced to judgment,
fixed, contingent, matured, unmatured, contested,
uncontested, secured or unsecured.
1.15 "Class" means one of the classes of Claims or
Interests defined in Article III hereof.
1.16 "Class A Beneficial Interest" means the
respective rights and interests of the holders of Allowed
Class 2 Claims and, if Class 4 accepts the Plan, the holders
of Allowed Class 4 Claims in the Liquidating Trust, subject to
the interest of the holders of Allowed Administrative, Priority
and Pre-Petition Tax Claims in the Distribution Fund.
1.17 "Class B Beneficial Interest" means the
respective rights and interests of the holders of Allowed
Administrative, Priority and Pre-Petition Tax Claims in the
Liquidating Trust's Distribution Fund.
1.18 "Company" means Fruehauf Trailer Corporation,
a Delaware Corporation, and its Affiliates.
1.19 "Confirmation" means the entry of a Confirmation
Order confirming this Plan at or after a hearing pursuant to
section 1129 of the Bankruptcy Code.
1.20 "Confirmation Date" means the date the
Confirmation Order is entered on the docket of the Bankruptcy
Court.
1.21 "Confirmation Order" means the order entered by
the Bankruptcy Court confirming the Plan pursuant to section
1129 of the Bankruptcy Code.
1.22 "Debtors" means Fruehauf Trailer Corporation,
Maryland Shipbuilding & Drydock Company, F.G.R., Inc.,
Jacksonville Shipyards, Inc., Fruehauf International
Limited, Fruehauf Corporation, The Mercer Co.,
Deutsche-Fruehauf Holding Corporation, MJ Holdings, Inc., and
E.L. Devices, Inc.
1.23 "Disclosure Statement" means the Disclosure
Statement filed by the Debtors as approved by the Bankruptcy
Court for submission to the Creditors, Interest
holders, and parties-in-interest of the Debtors, as it may
have been amended or supplemented from time to time.
4
1.24 "Disputed Claim" means a Claim as to which a proof
of claim has been Filed or deemed Filed under applicable law, as
to which an objection has been or may be timely Filed and
which objection, if timely Filed, has not been withdrawn on or
before any date fixed for Filing such objections by the Plan or
Order of the Bankruptcy Court and has not been overruled or
denied by a Final Order. Prior to the time that an objection
has been or may be timely Filed, for the purposes of this Plan,
a Claim shall be considered a Disputed Claim to the extent that:
(i) the amount of the Claim specified in the proof of claim
exceeds the amount of any corresponding Claim listed by the
Debtors in their respective Schedules to the extent of such
excess; (ii) any corresponding Claim listed by the Debtors in
their respective Schedules has been scheduled as
disputed, contingent, or unliquidated, irrespective of the
amount scheduled; or (iii) no corresponding Claim has been
listed by the Debtors in their respective Schedules.
Disputed Claims also includes Claims subject to a pending
action for equitable subordination of such Claims.
1.25 "Distribution Fund" means the portion of the
Debtors' Cash on the Effective Date which shall be
transferred to the Liquidating Trust, on behalf of and for
the benefit of the holders of Allowed Administrative,
Priority and Pre-Petition Tax Claims. The amount of Cash in
the Distribution Fund shall equal the aggregate of (a) the
allowed amount of all Administrative Claims, Pre-Petition Tax
Claims and Priority Claims; and (b) the asserted amount or
court-estimated amount of Disputed or undetermined (i)
Administrative Expense Claims, (ii) Pre-Petition Tax Claims,
and (iii) Priority Claims. With respect to
Administrative Claims for compensation and reimbursement
of expenses of professionals or other persons pursuant to
sections 328, 330, 331 and 503(b) of the Bankruptcy Code, the
amount of Cash to be deposited shall be the amount sought or
the maximum amount estimated to be sought for such compensation
and expenses. The Distribution Fund shall not include interest
earned on the Distribution Fund after the Effective Date.
1.26 "Distribution Fund Surplus" shall be the amount
of Cash, if any, remaining in the Distribution Fund after
the payment of all Allowed Administrative Expense Claims,
Allowed Priority Claims and Allowed Pre-petition Tax Claims.
1.27 "Distributions" means the properties or interests
in property to be paid or distributed hereunder to the holders
of Allowed Claims.
1.28 "Docket" means the docket in the Reorganization
Case maintained by the Clerk.
1.29 "Effective Date" means the date selected by the
Debtors which is between the first (1st) and forty fifth (45th)
business days on which no stay of the Confirmation Order is and
remains in effect. The Effective Date may be specified in the
Confirmation Order or in a separate document filed with the
Bankruptcy Court. If no designation is made, it shall be the
first day of that period.
1.30 "Estates" means the estates created in
the Reorganization Case under section 541 of the Bankruptcy Code.
1.31 "Executory Contract" means any unexpired lease
and/or executory contract as set forth in section 365 of the
Code. 1.32 "File" or "Filed" means filed with the
Bankruptcy Court in the Reorganization Case.
1.33 "Final Order" means an order or judgment of
the Bankruptcy Court, or other court of competent
jurisdiction, as entered on the Docket in the Reorganization
Case, which has not been reversed, stayed, modified or amended.
5
1.34 "Foreclosed Assets" means the Debtors' assets on
which the Indenture Trustee shall be deemed to have
foreclosed the liens of the holders of the Senior Notes
pursuant to Section 6.5 of this Plan. The Foreclosed Assets
shall include all assets of the Debtors, including, but not
limited to, the stock of JSI Property Corp., Pension Corp.
and Fruehauf de Mexico and all rights to receive tax
refunds, but excluding the Distribution Fund and the Wabash
Securities.
1.35 "Hogan's Creek Property" means the 3.43 acres of
real property located in Duval County, Florida, owned by
Jacksonville Shipyards, Inc.
1.36 "Impaired" as to a Class means the Plan alters
the legal, equitable or contractual rights of a Claim or
Interest holder within the meaning of 11 U.S.C. 1124.
1.37 "Indenture" means the Indenture, dated as of May
1, 1995 between Fruehauf Trailer Corporation and IBJ Schroder
Bank & Trust Company, as Trustee, as amended, relating to the
Senior Notes.
1.38 "Indenture Trustee" means IBJ Schroder Bank &
Trust Company, as trustee under the Indenture.
1.39 "Interest" means the rights of the owners
and/or holders of outstanding share or shares of the Company's
Class A Common Stock and Class B Common Stock with respect
of such Interest as of the date immediately preceding the
Petition Date.
1.40 "JSI Property Corp." means a newly-created
Delaware corporation to which the Hogan's Creek Property
and the Picketville Property shall be transferred by
Jacksonville Shipyards, Inc.
1.41 "Liquidating Trust" or "Trust" means that certain
trust substantially in the form of Exhibit "A" attached to the
Plan.
1.42 "Liquidating Trust Account" means the
segregated account created by the Liquidating Trustee for
the initial deposit of all funds received by the Liquidating
Trust.
1.43 "Liquidating Trust Proceeds" shall be the net
proceeds of all assets held by the Liquidating Trust,
excluding the Distribution Fund.
1.44 "Liquidating Trustee" or "Trustee" means Chriss
Street or his successor selected in accordance with the
Liquidating Trust Agreement, as trustee for the Liquidating
Trust.
1.45 "Management Plan" means the Fruehauf
Trailer Corporation Retirement Plan sponsored by Fruehauf
Trailer Corporation.
1.46 "Old Common Stock" means the Common Stock of
Fruehauf Trailer Corporation.
1.47 "Old Securities" means the Senior Notes, the Old
Common Stock and the Old Warrants.
1.48 "Old Warrants" means the Company's common
stock warrants issued May 3, 1995 and any other Company
warrants outstanding on the Effective Date.
1.49 "Order" means an order or judgment of the
Bankruptcy Court as entered on the Docket.
6
1.50 "Pension Corp." means a newly-created
Delaware corporation which will be owned by Fruehauf Trailer
Corporation, will become sponsor of the Pension Plans and will
be foreclosed by the holders of the Senior Notes and
conveyed to the Liquidating Trust.
1.51 "Pension Plans" means the Management Plan and the
Union Plan.
1.52 "Person" means any individual, corporation,
general partnership, limited partnership, association,
joint stock company, joint venture, estate, trust,
indenture trustee, government or any political subdivision,
governmental unit (as defined in the Bankruptcy Code),
official committee appointed by the United States Trustee,
unofficial committee of creditors or equity holders or other
entity.
1.53 "Petition Date" means October 7, 1996, the date
on which Debtors filed their voluntary Chapter 11 petitions.
1.54 "Picketville Property" means the 6.16 acre
landfill located in Duval County, Florida, owned by
Jacksonville Shipyards, Inc.
1.55 "Plan" means this Joint Plan of Reorganization in
its present form, or as it may be amended, modified,
and/or supplemented from time to time in accordance with the
Bankruptcy Code, or by agreement of all affected parties, or by
order of the Bankruptcy Court, as the case may be.
1.56 "Pre-Petition Tax Claim" means a Tax Claim that
arises prior to the Petition Date.
1.57 "Priority Claim" means all Claims entitled to
priority under 11 U.S.C. 507(a) of the Bankruptcy Code, other
than an Administrative Claim or a Tax Claim.
1.58 "Pro Rata" means proportionately, based on
the percentage of the distribution made on account of a
particular Allowed Claim bears to the distributions made on
account of all Allowed Claims of the Class in which the
Allowed Claim is included.
1.59 "Rejection Claim" means a Claim resulting from
the rejection of a lease or executory contract by a Debtor.
1.60 "Reorganization Case" means, collectively, the
Debtors' cases under Chapter 11 of the Bankruptcy Code that were
commenced on the Petition Date.
1.61 "Requisite Percentage of Class A Beneficial
Interests" shall mean the percentage of Class A Beneficial
Interests to which holders of Allowed Class 2 Claims are
entitled to share Pro Rata, such percentage being 100% if Class
4 rejects the Plan and 94.5% if Class 4 accepts the Plan.
1.62 "Schedules" means the Schedules of Assets
and Liabilities, Statement of Financial Affairs and
Statement of Executory Contracts that may be filed by the
Debtors with the Bankruptcy Court, as amended or supplemented
on or before the Confirmation Date, listing the liabilities
and assets of the Debtors.
1.63 "Secured Claim" means any Claim that is secured by
a lien on property in which the Estates have an interest or that
is subject to setoff under section 553 of the Bankruptcy Code,
to the extent of the value of the Claim holder's interest in
the Estates' interest in such property or to the extent of the
amount subject to setoff, as applicable, as determined
pursuant to section 506(a) of the Bankruptcy Code.
7
1.64 "Securities Claims" means (i) any Claim arising
from rescission of a purchase or sale of Old Common Stock
or for damages arising from the purchase or sale of Old Common
Stock, or (ii) any Claim for indemnity, reimbursement, or
contribution on account of any such Claim.
1.65 "Security Agreement" means the documentation
under which a lien against property is reflected.
1.66 "Senior Notes" means the 14.75% Senior Secured
Notes due 2002.
1.67 "Tax Claim" means either (a) an Unsecured Allowed
Claim of a governmental entity as provided by section 507(a)(8)
of the Code, or (b) an Allowed Claim of a governmental entity
secured by a lien on property of the Debtors under applicable
state law.
1.68 "Trust Certificates" means the written
instruments evidencing the Class A Beneficial Interest in the
Liquidating Trust of a holder of an Allowed Claim in Class 2
and if Class 4 accepts the Plan, an Allowed Claim in Class 4.
1.69 "Union Plan" means the Pension Plan for Hourly
Rated (Union) Employees of Jacksonville Shipyards, Inc.
sponsored by Jacksonville Shipyards, Inc.
1.70 "Unsecured Claim" means any Claim that is not
an Administrative Claim, Priority Claim, Pre-Petition Tax Claim
or Secured Claim.
1.71 "Unsecured Creditors' Committee" means the
Official Committee of Unsecured Creditors appointed in the
Reorganization Case by the United States Trustee pursuant to
section 1102 of the Bankruptcy Code, as constituted by the
addition or removal of members from time to time.
1.72 "Wabash" means Wabash National Corporation.
1.73 "Wabash Securities" means the Wabash Common
and Preferred Stock owned by Debtor on the Effective Date.
1.74 "Warrant Notes" means the Company's
unsecured promissory notes in the approximate amount of $8.5
million due October, 1998.
ARTICLE 2
DESIGNATION OF CLAIMS AND INTERESTS
This Plan substantively consolidates the Claims against
the Debtors and their treatment. Substantive consolidation for
Plan purposes is appropriate in this case because all of the
Debtors' assets are encumbered by liens in favor of the holders
of Senior Notes and without their agreement to the
distributions provided by the Plan, unsecured creditors,
including holders of Administrative and Priority Claims,
would receive nothing on their Claims. This Plan shall serve
as a request by the Debtors, in lieu of a separate motion, to
the Bankruptcy Court, that it grant substantive
consolidation of the Debtors' estates. Substantive
consolidation will result in extinguishment of
intercompany claims between the various Debtors' estates.
8
2.1 Summary. The following is a designation of the
classes of Claims and Interests under this Plan. In
accordance with section 1123(a)(1) of the Bankruptcy Code,
Administrative Claims and Tax Claims described in Article 3 of
this Plan have not been classified and are excluded from the
following classes. A Claim or Interest is classified in a
particular class only to the extent that the Claim or
Interest qualifies within the description of that class,
and is classified in another class or classes to the extent
that any remainder of the Claim or Interest qualifies within the
description of such other class or classes. A Claim or
Interest is classified in a particular class only to the
extent that the Claim or Interest is an Allowed Claim or
Allowed Interest in that class and has not been paid, released
or otherwise satisfied before the Effective Date; a Claim
or Interest which is not an Allowed Claim or Allowed Interest is
not in any Class. Notwithstanding anything to the contrary
contained in this Plan, no distribution shall be made on
account of any Claim or Interest which is not an Allowed
Claim or Allowed Interest.
Class Status
------ --------
A. Secured Claims
- -------------------
Class 2: Secured Claims of holders Impaired entitled to vote
of Senior Notes
Class 3: Secured Claims other than Impaired entitled to vote
Senior Note Claims
B. Unsecured Claims
- ---------------------
Class 1: Priority Claims Unimpaired - no right to vote
Class 4: All Unsecured Claims Against Impaired-entitled to vote
the Debtors
C. Interests
- --------------
Class 5: Old Common Stock Impaired deemed to have rejected
Class 6: Old Warrants Impaired deemed to have rejected
Class 7: Securities Claims Impaired deemed to have rejected
ARTICLE 3
TREATMENT OF UNCLASSIFIED CLAIMS
3.1 Administrative Claims.
(a) General. Subject to the bar date
provisions herein, unless otherwise agreed to by the parties,
each holder of an Allowed Administrative Claim shall receive
Cash equal to the unpaid portion of such Allowed Administrative
Claim or such other amount as agreed between the Debtors and the
holder of such Claim on the later of (a) the Effective Date or
as soon as practicable thereafter, (b) the date on which such
Claim becomes an Allowed Administrative Claim and (c) such
other date as is mutually agreed upon by the Debtors and
the holder of such Claim. All holders of Allowed
Administrative Claims shall have a beneficial interest in the
Liquidating Trust's Distribution Fund, and the Distribution
Fund shall be the sole source of payment of such Claims.
9
(b) Payment of Statutory Fees. All fees
payable pursuant to 28 U.S.C. 1930 shall be paid in Cash equal
to the amount of such Administrative Claim when due.
(c) Bar Date for Administrative Claims.
(i) General Provisions. Subject to
the exceptions provided in sections 3.1(c)(ii) and (iii), by
Order dated August 13, 1997, the Court established October 6,
1997 as the date by which certain holders of
Administrative Claims arising prior to August 13, 1997 must
have filed Administrative Proofs of Claim in lieu of requests
for payment of Administrative Claims. Holders of
Administrative Claims that have not filed such Proofs of
Claim by the applicable Administrative Claim bar date shall be
forever barred from asserting such Claims against the Debtors,
the Liquidating Trust or any of the Debtors' property.
(ii) Professionals. All professionals or
other entities requesting compensation or reimbursement of
expenses pursuant to sections 327, 328, 330, 331, 503(b) and
1103 of the Bankruptcy Code for services rendered before the
Effective Date (including, without limitation, any compensation
requested by any professional or any other entity for
making a substantial contribution in the Reorganization Case)
shall File and serve on the Liquidating Trustee at 1111
Bayside Drive, Suite 100, Corona del Mar, California
92625-1755; Haynes and Boone, L.L.P. (Attn.: Robin Phelan),
901 Main Street, Dallas, Texas 75202-3789, as counsel to the
Bondholders' Committee; Camhy Karlinsky & Stein LLP (Attn:
David Neier), 1740 Broadway, New York, NY 10019; Morris,
Nichols, Arsht & Tunnell (Attn: William H. Sudell, Jr.), 1201
North Market Street, Wilmington, Delaware 19801; and The
Honorable Patricia A. Staiano, United States Trustee
(Attn.: Daniel K. Astin), The Curtis Center, 601 Walnut
Street, Suite 950W, Philadelphia, PA 19106; an application for
final allowance of compensation and reimbursement of expenses no
later than fortyfive (45) days after the Effective Date.
Objections to applications of professionals for compensation
or reimbursement of expenses must be Filed and served on the
Liquidating Trustee and the professionals to whose
application the objections are addressed no later than
seventy (70) days after the Effective Date. Any
professional fees and reimbursements or expenses incurred
by the Liquidating Trust subsequent to the Effective Date may
be paid by the Liquidating Trust without application to the
Bankruptcy Court. The Liquidating Trustee shall pay the
reasonable fees and expenses of the professionals of
the Bondholders' Committee incurred prior to the Effective Date
and the fees and expenses of the Indenture Trustee incurred
prior to the Effective Date as determined by the Court.
(iii) Tax Claims. All requests for payment
of Administrative Claims and other Claims by a governmental unit
for taxes (and for interest and/or penalties related to such
taxes) for any tax year or period, all or any portion of which
occurs or falls within the period from and including the
Petition Date through and including the Effective Date
("Post-petition Tax Claims") and for which no bar date has
otherwise been previously established, must be Filed on or
before the later of (i) 45 days following the Effective Date;
and (ii) 90 days following the filing with the applicable
governmental unit of the tax return for such taxes for such
tax year or period. Any holder of any Post-petition Tax
Claim that is required to File a request for payment of such
taxes and does not File such a Claim by the applicable bar
date shall be forever barred from asserting any such
Post-petition Tax Claim against any of the Debtors, the
Liquidating Trust or their respective properties, whether
any such Post-petition Tax Claim is deemed to arise prior to,
on, or subsequent to the Effective Date. To the extent that
the holder of a Tax Claim holds a lien to secure its Claim
under applicable state or federal law that survives the deemed
foreclosure by the holders of the Senior Notes, the surviving
lien shall attach to the Distribution Fund and remain in
effect until the Tax Claim has been paid in full. To the
extent that a Tax Claim is a Disputed Claim, any lien
securing such Disputed Claim under applicable state or
federal law shall attach to the Distribution Fund for such
Disputed Claim. Upon disallowance of a Disputed Tax Claim or
allowance and payment of such claim, such lien shall be
released. Failure by the Liquidating Trustee to make a
payment on an Allowed Tax Claim pursuant to the terms of the
Plan shall be an event of default. If the Liquidating Trustee
fails to cure an event of default as to an Allowed Tax Claim
within twenty (20) days after service of written notice of
default from the holder of such Allowed Tax Claim, then the
holder of such Allowed Tax Claim may enforce the entire
amount of its Claim, plus interest as provided under
this Plan, against the Liquidating Trust in accordance with
applicable state or federal law remedies. At the option of the
Liquidating Trustee and as an alternative to the treatment
provided above, the Liquidating Trustee may surrender the
property securing the post-petition Tax Claim and allow the
holder to foreclose upon the property. Surrendering the
property will satisfy the Tax Claim in full.
10
3.2 Treatment of Pre-Petition Tax Claims. Each holder
of an Allowed Pre-Petition Tax Claim shall have a
beneficial interest in the Liquidating Trust's Distribution Fund
and be paid in Cash from the Distribution Fund on the latest
of: (i) the first practicable date after the Effective Date,
(ii) 30 calendar days after the date on which an Order allowing
such Claim becomes a Final Order, (iii) the last day the taxes
may be paid under applicable law without incurring penalties
or interest, and (iv) such other time or times as may be
agreed by the holder of such Claim and the Trustee. To the
extent that the holder of a Tax Claim holds a lien to secure
its Claim under applicable state law following the deemed
foreclosure by the holders of the Senior Notes, the surviving
lien shall attach to the Distribution Fund and remain in
effect until such Allowed Pre-petition Tax Claim has been
paid. To the extent that a Tax Claim is a Disputed Claim,
any lien securing such Disputed Claim under applicable state
law shall either remain in effect or attach to the
Distribution Fund reserve for such Disputed Claim.
Upon disallowance of a Disputed Tax Claim or allowance and
payment of such claim, such lien shall be released.
Subject to the limitations of 11 U.S.C. 506(b), Allowed
Pre-Petition Tax Claims that are secured by liens under
applicable state or federal law shall accrue interest, but
not penalties, at the rates provided under applicable state
or federal law up to the Effective Date, and thereafter, to
the extent the liens have survived the deemed foreclosure
by the holders of the Senior Notes, shall accrue interest
at the rate of 7% per annum. Failure by the Liquidating
Trustee to make a payment on an Allowed Tax Claim pursuant
to the terms of the Plan shall be an event of default. If
the Liquidating Trust fails to cure an event of default as
to an Allowed Tax Claim within twenty (20) days after service
of written notice of default from the holder of such Allowed
Tax Claim, then the holder of such Allowed Tax Claim may
enforce the entire amount of its Claim, plus interest as
provided under this Plan, against the Liquidating Trust in
accordance with applicable state or federal law remedies. At
the option of the Liquidating Trustee and as an alternative to
the treatment provided above, the Liquidating Trustee may
abandon the property securing the Pre-petition Tax Claim and
allow the holder to foreclose upon the property. Abandoning
the property will satisfy the Tax Claim in full.
ARTICLE 4
CLASSIFICATION AND TREATMENT OF CLASSIFIED CLAIMS AND INTERESTS
4.1 Class 1 - Priority Claims.
(a) Classification: Class 1 consists of all non-tax Priority Claims.
--------------
(b) Treatment:
---------- Class 1 is unimpaired
and, accordingly, the members of Class 1 are not entitled to
vote on the Plan. Unless otherwise agreed to by the parties,
each holder of an Allowed Claim in Class 1 will receive a
beneficial interest in the Liquidating Trust's Distribution Fund
and will be paid the Allowed amount of such Claim in full in
Cash by the Liquidating Trust from the Distribution Fund on
or before the later of (a) the first practicable date after
the Effective Date, (b) the date such Claim becomes an Allowed
Claim, and (c) such other date as is mutually agreed upon by
the Debtor and the holder of such Claim.
11
4.2 Class 2 - Secured Claims of Holders of Senior Notes
(a) Classification: Class 2 consists of the Allowed Secured Claims
-------------- of the holders of the Senior Notes.
(b) Treatment: Class 2 is impaired and,accordingly, members of
---------- Class 2 are entitled to vote on the Plan.
Each holder of an Allowed Claim in Class 2 will receive (1)
its Pro Rata share of the Wabash Securities free and clear
of liens, claims and interests and, (2), either (a) its Pro
Rata share of 100% of the Class A Beneficial Interests in the
Liquidating Trust, or (b) if Class 4 accepts the Plan, its Pro
Rata share of 94.5% of the Class A Beneficial Interests in the
Liquidating Trust.
4.3 Class 3 - Secured Claims Other Than Claims of Holders of Senior Notes.
(a) Classification: Class 3 consists of all Allowed Secured Claims
------------- other than the Claims of holders of Senior Notes.
(b) Treatment: Class 3 is impaired, and the holders of Allowed Claims
---------- in such Class are entitled to vote
on the Plan. At the Debtors' option, on the Effective Date (a)
the Plan may leave unaltered the legal, equitable, and
contractual rights of the holder of an Allowed Secured Claim,
or (b) the Debtors may assume and assign the contract or
agreement governing an Allowed Secured Claim pursuant to section
365(b) of the Bankruptcy Code, or (c) the Debtors may pay an
Allowed Secured Claim in such manner as may be agreed to
between the Debtors and the holder of such Claim, or (d) the
Debtors may (i) pay an Allowed Secured Claim in full, in cash,
or (ii) the Debtors may surrender to the holder of an
Allowed Secured Claim the property securing such Claim, in all
of such events, the value of such holder's interest in such
property shall be determined (A) by agreement of the Debtors
or the Liquidating Trustee and the holder of such Allowed
Secured Claim or (B) if they do not agree, by the
Bankruptcy Court.
4.4 Class 4 - General Unsecured Claims
(a) Classification: Class 4 consists of all Allowed Unsecured Claims
-------------- against any of the Debtors,
including trade Claims, Claims arising out of the Warrant
Notes, the Rejection Claims, any indemnification Claims, and
any products liability or personal injury Claims.
(b) Treatment: If Class 4 accepts the Plan (i.e. of those holders of
---------- Allowed Claims in Class 4 that vote
on the Plan, the holders of at least two-thirds (2/3) in amount
and more than one-half (1/2) in number of Allowed Claims in
Class 4 vote in favor of the Plan), each holder of an Allowed
Class 4 Claim will receive its Pro Rata share of 5.5% of the
Class A Beneficial Interests in the Liquidating Trust. If
Class 4 rejects the Plan, the holders of Allowed Claims will
receive no distribution under the Plan.
4.5 Class 5 - Old Common Stock.
(a) Classification: Class 5 consists of all Interests in Old Common
--------------- Stock.
12
(b) Treatment: Holders of Interests in Class 5 will receive no
--------- distribution under the Plan and the Old Common
Stock will be canceled.
4.6 Class 6 - Old Warrants
(a) Classification: Class 6 consists of all Interests of holders of
-------------- Old Warrants.
(b) Treatment: Holders of Old Warrants will receive no distribution
--------- under the Plan and all Old Warrants shall be
canceled.
4.7 Class 7 - Securities Claims
(a) Classification: Class 7 consists of Securities Claims (if any
-------------- exist).
(b) Treatment: Any Allowed Securities Claims shall be treated
---------- respectively with the same priorities
as the Old Common Stock and the Old Warrants pursuant to
section 510(b) of the Bankruptcy Code, and the holders of
such Allowed Securities Claims shall receive no distribution
under the Plan.
ARTICLE 5
ACCEPTANCE OR REJECTION OF THE PLAN
5.1 Voting Classes. The holders of Claims in Classes 2,
3 and 4 are impaired and shall be entitled to vote to accept
or reject the Plan.
5.2 Presumed Acceptance of Plan. Class 1 is
unimpaired under the Plan, and therefore, is conclusively
presumed to accept the Plan.
5.3 Presumed Rejection of Plan. The holders of
Interests in Classes 5, 6 and 7 are not being solicited to
accept or reject the Plan and will be deemed to have rejected
the Plan.
ARTICLE 6
MEANS FOR EXECUTION AND IMPLEMENTATION OF THE PLAN
6.1 Funding of the Distribution Fund. On the
Effective Date, the Debtors shall first fund the Distribution
Fund which shall be transferred to the Liquidating Trust on
behalf of and for the benefit of the holders of Allowed
Administrative, Priority and Pre-Petition Tax Claims.
6.2 Transfer of Wabash Securities to Indenture Trustee.
On the Effective Date, the Debtors shall then transfer the
Wabash Securities to the Indenture Trustee for distribution
to the holders of the Senior Notes in accordance with the terms
of this Plan.
6.3 Change of Plan Sponsorship for the Management and
Union Plans. Prior to or on the Effective Date, the Debtors
shall transfer sponsorship of the current Management Plan and
Union Plan to Pension Corp. The current sponsors are Fruehauf
Trailer Corporation for the Management Plan and Jacksonville
Shipyards, Inc. for the Union Plan. The Board of
Directors of the respective sponsors shall approve the change
in sponsorship. The administrative provisions of the Management
Plan and Union Plan allow for a change in plan sponsorship.
The appropriate notices and governmental filings to comply
with federal law shall be provided in a timely manner to the
appropriate parties. Once the change in sponsorship has been
completed, Pension Corp. may elect to merge the Management
Plan and Union Plan to form a single plan.
13
6.4 Transfer of Hogan's Creek Property and
Picketville Property. On the Effective Date, Jacksonville
Shipyards, Inc. shall next transfer the Hogan's Creek
Property and Picketville Property to JSI Property Corp.
6.5 Foreclosure by Holders of Senior Notes. On
the Effective Date, the Indenture Trustee will be deemed to
have foreclosed the liens of the holders of the Senior Notes
on the Foreclosed Assets and to have transferred the
Foreclosed Assets to the Liquidating Trust. The
Foreclosed Assets shall be transferred to the Liquidating
Trust on behalf of and for the benefit of the holders of
Class A Beneficial Interests in the Liquidating Trust.
6.6 Transfer by Debtors of Assets to the Liquidating
Trust. On the Effective Date, the Debtors shall convey all
of their remaining assets to the Liquidating Trust free and
clear of all liens, claims and encumbrances on behalf of and
for the benefit of the creditors who will receive a
beneficial interest in the Liquidating Trust.
6.7 Ratification of Liquidating Trust Agreement. On
the Effective Date, each holder of each Claim will be deemed to
have ratified and become bound by the terms of the Liquidating
Trust Agreement. The Liquidating Trustee is empowered to
execute the Liquidating Trust Agreement on behalf of each
holder of a Claim.
(a) Powers and Duties. The Liquidating Trustee
shall have the powers, duties and obligations specified in
this Plan and the Liquidating Trust Agreement.
(b) Compensation of Trustee. The Liquidating
Trustee shall be entitled to receive from the Trust Estate
compensation for his services as Trustee substantially in
accordance with the description at section IV.F.7.b. of the
Disclosure Statement which compensation shall be approved
by the Court at the Confirmation Hearing. The Liquidating
Trustee shall also be reimbursed by the Trust Estate for
all reasonable out-of-pocket expenses incurred by the Trustee
in the performance of his duties.
(c) Limitation of Liability. The Liquidating
Trustee shall use reasonable discretion in exercising each of
the powers herein granted. No Liquidating Trustee or any
attorney, agent, or servant of the Liquidating Trustee shall
be personally liable in any case whatsoever arising in
connection with the performance of obligations under this Plan,
whether for their acts or their failure to act unless they
shall have been guilty of willful fraud or gross negligence.
The Liquidating Trustee may consult with
attorneys, accountants, and agents, and the opinions of the
same shall be full protection and justification to the
Liquidating Trustee and his employees for anything done or
admitted or omitted or suffered to be done in accordance
with said opinions. The Liquidating Trustee shall not be
required to give any bond for the faithful performance of his
duties hereunder.
(d) Indemnity. The Liquidating Trustee and
his employees and agents will be indemnified by the Liquidating
Trust against claims arising from the good faith performance of
duties under the Bankruptcy Code or this Plan.
14
(e) Right to Hire Professionals. The
Liquidating Trustee shall have the right to reasonably utilize
the services of attorneys or any other professionals which, in
the discretion of the Liquidating Trustee, are necessary to
perform the duties of the Liquidating Trustee. Reasonable
fees and expenses incurred by the attorneys, accountants or
other agents of the Liquidating Trustee shall be paid by the
Liquidating Trust.
(f) Right to Pursue all Causes of Action of
the Debtors. After the transfers contemplated by Sections 6.5
and 6.6 of this Plan, the Liquidating Trust shall own all
causes of action, including preference claims previously
owned by the Debtors, and shall be authorized to pursue any
causes of action for the benefit of the Liquidating Trust and
the holders of the Class A Beneficial Interests.
(g) Treatment of Distribution Fund Surplus. After
the payment of the Allowed Administrative Expense Claims,
Priority Claims and Pre-petition Tax Claims of the Class B
Beneficial Interestholders, any remaining funds in the
Distribution Fund shall be available for distribution to the
holders of the Class A Beneficial Interests in the Liquidating
Trust.
(h) Limitation on the Trustee. Two holders of
Senior Notes will serve as the Trust Advisory Committee.
Either Bankruptcy Court approval or unanimity among the Trust
Advisory Committee members and Trustee is required before the
Trustee can:
(1) borrow money in excess of $500,000 or grant liens on any
part of the Trust Estate in excess of $500,000;
(2) sell assets of the Trust Estate with a value in excess of
$500,000;
(3) modify the Plan;
(4) initiate and prosecute litigation, including but not limited
to claim objections with expected fees and costs in excess
of $250,000;
(5) dispose of or settle any claim or litigation with a
potential value to the Liquidating Trust in excess of
$500,000; and
(6) forego making the annual distribution to Certificate
Holders required by Section 6.2 of the Liquidating Trust.
If unanimity does not exist regarding the
proposed action and Bankruptcy Court approval is
requested, the Liquidating Trust shall pay the attorneys fees
incurred by the objecting Committee member, up to $25,000 per
member during the term of the Liquidating Trust.
The Liquidating Trust Agreement may be modified
only with the written approval of the Class A
Beneficial Interestholders holding over 50% of the Class A
Beneficial Interests.
(i) Distribution of Trust Certificates.
The Liquidating Trust shall distribute Trust Certificates to
the holders of the Class A Beneficial Interests in the
Liquidating Trust which shall reflect each holder's proportional
interest in the Liquidating Trust, subject to the interest of
the holders of Class B Beneficial Interests in the Distribution
Fund.
(j) Tax Treatment of the Liquidating Trust. It
is intended that the Liquidating Trust will be treated
as a "liquidating trust" within the meaning of Treasury
Regulations Section 301.7701-4(d). Accordingly, for federal
income tax purposes, the transfer and assignment of the
Debtors' assets shall be treated as a deemed transfer and
assignment of such assets to the holders of Claims followed by
a deemed transfer and assignment by such holders to the
Liquidating Trust. The Liquidating Trust shall provide the
holders of Claims with a valuation of the assets transferred
to the Liquidating Trust and such valuation shall be used
consistently for all federal income tax purposes. All items of
income, deduction, credit or loss of the Liquidating Trust
shall be allocated for federal, state and local income tax
purposes among the holders of Claims as set forth in the
Liquidating Trust agreement; provided, however, that to the
extent that any item of income cannot be allocated in the
taxable year in which it arises, the Liquidating Trust shall
pay the federal, state and local taxes attributable to such
income (net of related deductions) and the amount of such taxes
shall be treated as having been received by, and paid on behalf
of, the holders of Claims receiving such allocations
when such allocations are ultimately made.
15
(k) Termination of Liquidating Trust. The
duties, powers and responsibilities of the Liquidating
Trustee shall terminate upon the liquidation and distribution
to Beneficial Interestholders of all proceeds in the
Liquidating Trust estate in accordance with this Plan.
6.8 Dissolution of Corporate Entities. Following
the creation of the Distribution Fund, the transfer of the
Wabash Securities to the Indenture Trustee, the deemed
foreclosure of the Foreclosed Assets by the Indenture Trustee,
and the transfer of any remaining assets to the Liquidating
Trust on behalf of and for the benefit of the Beneficial
Interestholders, the Debtors shall be dissolved or liquidated.
6.9 Cancellation of Old Securities. On the Effective
Date, all Old Securities shall be terminated and canceled,
and the indentures or statements of resolution governing
such Old Securities shall be rendered void.
Notwithstanding the foregoing, such termination will not
impair the rights and duties under any indenture as between
the Indenture Trustee and the beneficiaries of the trust
created thereby (the holders of the Senior Notes) including,
but not limited to, the rights of the Indenture Trustee to
receive payment of its fees and expenses, to the extent not paid
by the Company, from amounts distributable to holders of Senior
Notes.
6.10 Registration Exemption for Debtors' Wabash
Securities and Beneficial Interests in the Liquidating
Trust. The Confirmation Order shall provide that (a) the
distribution of the Wabash Securities to holders of Allowed
Class 2 Claims, (b) the transfer to the Liquidating Trust of
the stock of Pension Corp. and JSI Property Corp., and (c)
the issuance and transfer pursuant to the Plan of the
beneficial interests in the Liquidating Trust and the Trust
Certificates and any resale of such property shall be exempt
from any and all federal, state and local laws requiring the
registration of such security, to the fullest extent provided
by section 1145 of the Bankruptcy Code.
6.11 Corporate Action. Upon entry of the
Confirmation Order, the dissolutions contemplated by Section
6.8 shall be deemed authorized and approved in all
respects and on the Effective Date, such corporate
dissolutions shall be deemed to have occurred and shall be in
effect from and after the Effective Date pursuant to applicable
state laws without any requirement of further action by the
stockholders or directors of the Debtors. On the Effective
Date, the Indenture Trustee and the Liquidating Trustee shall
be authorized and directed to take all necessary and
appropriate actions to effectuate the transactions
contemplated by the Plan and Disclosure Statement.
6.12 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 Liquidating Trust, as ultimate successor
to the Debtors, shall retain and may enforce any claims,
rights and causes of action that the Debtors or the Estates
may hold against any entity, including, without limitation,
any claims, rights or causes of action arising under sections
544 through 551 or other sections of the Bankruptcy Code or any
similar provisions of state law, or any other statute or legal
theory. The Liquidating Trust or any successor to or
designee thereof may pursue those rights of action, as
appropriate, in accordance with what is in the best interests
of the Liquidating Trust and those holding interests in the
Liquidating Trust.
16
6.13 Objections to Claims. Except as otherwise provided
for with respect to applications of professionals for
compensation and reimbursement of expenses under Article 3, or
as otherwise ordered by the Bankruptcy Court after notice
and a hearing, objections to Claims, including Administrative
Claims, shall be Filed and served upon the holder of such
Claim or Administrative Claim not later than the later of (a)
one hundred twenty (120) days after the Effective Date, and
(b) one hundred twenty (120) days after a proof of claim or
request for payment of such Administrative Claim is Filed,
unless this period is extended by the Court. Such extension
may occur ex parte. After the Effective Date, the
Liquidating Trust shall have the exclusive right to object to
Claims.
6.14 Exemption from Stamp and Similar Taxes. The
issuance and transfer of the Wabash Securities, the
issuance and distribution of the Pension Corp. and JSI
Property Corp. Stock, and the transfer and ultimate sale of
the Foreclosed Assets as provided in this Plan shall not be
taxed under any law imposing a stamp tax or similar tax in
accordance with 11 U.S.C. 1146(c).
16
ARTICLE 7
FUNDING AND METHODS OF DISTRIBUTION AND
PROVISIONS FOR TREATMENT OF DISPUTED CLAIMS
7.1 Funding of Distributions Under the Plan. The
Debtors have liquidated 800,000 shares of the Wabash Common
Stock. A portion of the sale proceeds was used to pay
the Debtors' obligations to Bank of America as
Debtor-In-Possession lender. From the remaining proceeds and
other cash on hand, the Debtors will fund the Distribution
Fund. The Debtors may seek one or more orders of the
Bankruptcy Court estimating or limiting the amount of property
to be deposited in the Distribution Fund. The Distribution
Fund shall be the sole source of funds for the payment of
Allowed Administrative Claims, Pre-petition Tax Claims and
Priority Claims.
7.2 Cash Distributions. All Cash distributions
made pursuant to the Plan shall be made by the Liquidating
Trustee from the Liquidating Trust estate. Any such payments
may be made either by check or wire transfer, at the option of
the payor.
7.3 Distribution Procedures. Except as otherwise
provided in the Plan, all distributions of Cash and other
property shall be made by the Liquidating Trustee on the later
of the Effective Date or the date on which such Claim is
Allowed, or as soon thereafter as practicable. Distributions
required to be made on a particular date shall be deemed to
have been made on such date if actually made on such date
or as soon thereafter as practicable. No payments or
other distributions of property shall be made on account of
any Claim or portion thereof unless and until such Claim or
portion thereof is Allowed.
7.4 Distributions to Holders of Allowed
Administrative Expense Claims, Pre-Petition Tax Claims and
Class 1 Priority Claims. Commencing on the Effective
Date, the Liquidating Trustee shall, in accordance with
Article 3 of the Plan, distribute to each holder of a then
unpaid Allowed Administrative Expense Claim, Allowed
Pre-Petition Tax Claim, or Allowed Priority Claim Cash in
the Allowed amount of such holder's Claim. The Distribution
Fund shall be distributed to the holders of Disputed
Administrative Expense Claims, Pre-Petition Tax Claims and
other Priority Claims pursuant to Article 3 of the Plan if and
to the extent that the balance, if any, of such Claims is
Allowed by Final Order. The Liquidating Trust must hold
the Distribution Fund in a segregated account for the benefit of
the holders of Allowed Administrative, Priority and Pre-Petition
Tax Claims until all Disputed Claims that are alleged to
be Administrative, Pre-Petition Tax or Priority Claims have
been Allowed or disallowed.
17
7.5 (a) Distributions to Holders of Allowed Class
2 Claims. The Debtors shall deliver all of the Wabash
Securities and Trust Certificates representing the Requisite
Percentage of Class A Beneficial Interests to the Indenture
Trustee. The Indenture Trustee shall make the Pro Rata
distribution required by Section 4.2 of the Plan to the
holders of the Senior Notes. The Liquidating Trust shall pay
all reasonable fees and expenses of the Indenture Trustee in
acting as distribution agent as and when such fees and
expenses become due without further order of the Bankruptcy
Court.
(b) Certification of Claims by Indenture Trustee.
The Indenture Trustee shall certify to the Liquidating Trustee a
list of the registered holders of the Senior Notes as of the
Ballot Record Date, designating the name, address,
taxpayer identification number (if known), certificate number,
and the amount of unpaid principal and accrued interest owed
to each holder on their respective securities.
(c) Surrender and Cancellation of Old Securities.
As a condition to receiving the Wabash Securities and
Trust Certificates distributable under the Plan, the holders of
Senior Notes shall surrender their Senior Notes to the Indenture
Trustee for the holders of Senior Notes. When a holder
surrenders its Senior Notes to the Indenture Trustee, the
Indenture Trustee shall hold the instrument in "book entry
only" until such instruments are canceled. Any holder of
Senior Notes whose instrument has been lost, stolen,
mutilated or destroyed shall, in lieu of surrendering such
instrument, deliver to the Indenture Trustee: (a) evidence
satisfactory to the Indenture Trustee of the loss, theft,
mutilation or destruction of such instrument, and (b) such
security or indemnity that may be reasonably required by
the Indenture Trustee to hold the Indenture Trustee harmless
with respect to any such representation of the holder. Upon
compliance with the preceding sentence, such holder shall, for
all purposes under the Plan, be deemed to have surrendered
such instrument. Any holder of a Senior Note which has
not surrendered or been deemed to have surrendered its Senior
Notes prior to the time that the Indenture Trustee
distributes the Wabash Securities and Trust Certificates or
the Trustee makes a distribution to holders of Trust
Certificates may have its distribution reduced by any taxes
that the Indenture Trustee or Liquidating Trustee has paid
on account of such distribution. Any holder of a Senior Note
which has not surrendered or been deemed to have
surrendered its Senior Notes within two years after the
Effective Date, shall have its Claim as a holder of Senior
Notes disallowed, shall receive no distribution on account of
its Claim as a holder of Senior Notes, and shall be forever
barred from asserting any Claim on account of its Senior
Notes. Any Wabash Securities and Trust Certificates
held for distribution by the Indenture Trustee on
account of such disallowed claims of holders of Senior Notes
shall be distributed Pro Rata to the remaining holders of
Allowed Class 2 claims if the value of such Wabash
Securities and Trust Certificates appears, in the sole
discretion of the Indenture Trustee, to have a value justifying
the cost of such distribution. In all other cases, the
Indenture Trustee shall deliver such Wabash Securities and Trust
Certificates to the Liquidating Trust.
As of the Effective Date, all Senior Notes
shall represent only the right to participate in the
distributions provided in the Plan on account of such Senior
Notes.
(d) Ballot Record Date; Distributions to Holders
of Senior Notes. The Indenture Trustee shall distribute
all distributions of property to be made by the Indenture
Trustee pursuant to the Plan to the record holders of Senior
Notes, as of the Ballot Record Date, unless, at least five (5)
business days prior to a distribution, the holder of any such
Claim furnishes (or causes its transferee to furnish) the
Indenture Trustee, or its agent, with sufficient evidence (in
the Indenture Trustee's or its agent's sole and absolute
discretion) of the transfer of such Claim, in which event
the Indenture Trustee shall distribute, or cause to be
distributed, all such distributions of property to such
transferee. Following the conveyance of the Foreclosed
Assets and Debtors' Assets to the Liquidating Trust, all
distributions to the holders of Senior Notes shall be made by
the Liquidating Trustee.
18
7.6 Disputed Claims. Notwithstanding any other
provisions of the Plan, no payments or distributions shall
be made on account of any Disputed Claim until such Claim
becomes an Allowed Claim, and then only to the extent that it
becomes an Allowed Claim.
7.7 Delivery of Distributions and Undeliverable
or Unclaimed Distributions.
(a) Delivery of Distributions in General. Except
as provided below in section 7.7(b)(ii) for holders of
undeliverable distributions, distributions to holders of Allowed
Claims shall be distributed by mail as follows: (a) except in
the case of the holders of Senior Notes, (1) at the addresses
set forth on the respective proofs of claim filed by such
holders; (2) at the addresses set forth in any written
notices of address changes delivered to the Debtors or the
Liquidating Trustee after the date of any related proof of
claim; or (3) at the address reflected on the Schedule of
Assets and Liabilities Filed by the Debtors if no proof of
claim or proof of interest is Filed and the Debtors have not
received a written notice of a change of address; and (b) in
the case of the holder of Senior Notes (1) to the latest
mailing address maintained of record by the Indenture Trustee
on the Ballot Record Date; or (2) at the addresses set forth
in any written notices of address change delivered to the
Indenture Trustee or the Liquidating Trustee at least five
(5) business days prior to the applicable distribution.
(b) Undeliverable Distributions.
(i)Holding and Investment of
Undeliverable Property. If the distribution to the holder of
any Claim is returned to the Liquidating Trust or the
Indenture Trustee as undeliverable, no further distribution
shall be made to such holder unless and until the
Liquidating Trust is notified in writing of such holder's
then current address. Subject to Section 7.7(b)(ii),
undeliverable distributions shall remain in the possession of
the Liquidating Trust pursuant to this section until such times
as a distribution becomes deliverable.
Unclaimed Cash shall be held in trust in
a segregated bank account in the name of the Liquidating Trust,
for the benefit of the potential claimants of such funds, and
shall be accounted for separately. Undeliverable securities
shall be held in trust for the benefit of the potential
claimants of such securities by the Liquidating Trust or, in the
case of a holder of an Allowed Class 2 Claim, by the
Indenture Trustee, in a number of shares sufficient to
provide for the unclaimed amounts of such securities, and shall
be accounted for separately.
(ii) Distribution of Undeliverable
Property After it Becomes Deliverable and Failure to Claim
Undeliverable Property. Any holder of an Allowed Claim who does
not assert a claim for an undeliverable distribution held by
the Liquidating Trust within two (2) years after the Effective
Date shall no longer have any claim to or interest in
such undeliverable distribution, and shall be forever barred
from receiving any distributions under this Plan. In such
cases, any cash or securities held for distribution on
account of such Claims shall become property of the Liquidating
Trust.
7.8 Distributions on Account of Unsecured Class 4
Claims. If Class 4 accepts the Plan, Trust Certificates
representing 5.5% of the Class A Beneficial Interests in the
Liquidating Trust shall be distributed, Pro Rata, to holders
of Allowed Claims in Class 4. The Liquidating Trust shall
not be required to make distributions of Trust Certificates to
holders of Allowed Claims in Class 4 until the
Liquidating Trust has resolved its objections to Disputed
Claims in Class 4, a process which shall be completed no later
than the first anniversary of the Effective Date. Any
distributions of Cash to which the holders of Trust
Certificates become entitled during this claims resolution
period shall be distributed to the holders of Allowed Claims in
Class 4, Pro Rata, with any accrued interest thereon at the time
the Trust Certificates are distributed; provided, however,
that such distribution shall be reduced by any taxes
paid by the Liquidating Trust on account of interest or
other income earned thereon.
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7.9 De Minimis Distributions. No Cash payment of less
than twenty dollars ($20.00) to holders of Allowed Claims
shall be made to any holder on account of an Allowed Claim
unless a request therefor is made in writing to the Liquidating
Trust.
7.10 Failure to Negotiate Checks. Checks issued in
respect of distributions to holders of Allowed Administrative
Claims and Allowed Priority Claims (including Allowed
Pre-Petition Tax Claims) under the Plan shall be null and void
if not negotiated within 60 days after the date of issuance.
Any amounts returned to the Liquidating Trust in respect of
such checks shall be held in the Distribution Fund by the
Liquidating Trust. Requests for reissuance of any such
check may be made directly to the Liquidating Trust by the
holder of the Allowed Claim with respect to which such check
originally was issued. Any claim in respect of such voided
check is required to be made within six months of the original
issuance date of the check. Thereafter, all amounts represented
by any voided check shall become unrestricted funds of the
Liquidating Trust. All Claims in respect of void checks and
the underlying distributions shall be discharged and forever
barred from assertion against the Liquidating Trust and
its property.
7.11 Compliance with Tax Requirements. In connection
with the Plan, to the extent applicable, the Liquidating Trust
shall comply with all 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.
7.12 Setoffs. Unless otherwise provided in a Final Order
or in this Plan, the Liquidating Trust may, but shall not
be required to, set off against any Claim and the payments to
be made pursuant to the Plan in respect of such Claim, any
claims of any nature whatsoever the Debtors may have against
the holder thereof or its predecessor, but neither the failure
to do so nor the allowance of any Claim hereunder shall
constitute a waiver or release by any Debtor or the Liquidating
Trust of any such Claims the Debtors or the Liquidating Trust
may have against such holder or its predecessor.
7.13 Fractional Interests. The calculation of
the percentage distribution of Wabash Securities to be
made to holders of certain Allowed Claims as provided
elsewhere in this Plan may mathematically entitle the holder
of such an Allowed Claim to a fractional interest in such
Stock. The number of shares of Wabash Securities to be
received by a holder of an Allowed Claim shall be rounded to
the next lower whole number of shares. The total number of
shares of Wabash Securities to be distributed to a class of
Claims shall be adjusted as necessary to account for the
rounding provided for in this section. Any fractional shares
that are rounded down and not issued to holders of Senior Notes
shall be contributed to the Liquidating Trust.
ARTICLE 8
TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES
8.1 Rejection of All Executory Contracts and Leases
Not Assumed. The Plan constitutes and incorporates a motion by
the Debtors to reject, as of the Effective Date, all
pre-petition executory contracts and unexpired leases to which
the Debtors are a party, except for any executory contract or
unexpired lease that (i) has been assumed or rejected pursuant
to a Final Order, or (ii) is the subject of a pending motion
for authority to assume the contract or lease Filed by the
Debtors prior to the Confirmation Date.
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8.2 Bar Date for Filing of Rejection Claims. Any Claim
for damages arising from the rejection under this Plan
of an executory contract or unexpired lease that was not
subject to an earlier bar date must be Filed within thirty (30)
days after the mailing of notice of Confirmation or be
forever barred and unenforceable against the Debtors, the
Estates, any of their affiliates and their properties and
barred from receiving any distribution under this Plan.
ARTICLE 9
EFFECTS OF PLAN CONFIRMATION
9.1 Transfers to Liquidating Trust are Free and Clear
of Claims Against Debtors. As a result of the foreclosure and
sale of the Debtors' assets contemplated by Articles 6.5 and
6.6 of this Plan, the assets transferred to the Liquidating
Trust on behalf of and for the benefit of the holders of
Allowed Claims shall be held by the Liquidating Trust free
and clear of all liens, claims or interests in such property
that arose before the Confirmation Date.
9.2 No Liability for Solicitation or Participation.
As specified in section 1125(e) of the Bankruptcy Code, Persons
that solicit acceptances or rejections of the Plan and/or
that participate in the offer, issuance, sale, or
purchase of securities offered or sold under the Plan, in good
faith and in compliance with the applicable provisions of the
Bankruptcy Code, are not liable, on account of such solicitation
or participation, for violation of any applicable law,
rule, or regulation governing the solicitation of acceptances
or rejections of the Plan or the offer, issuance, sale, or
purchase of securities.
9.3 Limitation of Liability. None of the
Unsecured Creditors' Committee and its members and the
professional Persons employed by the Unsecured Creditors'
Committee; the Indenture Trustee and any professional
Persons retained by it; the Bondholders' Committee and its
members and professional Persons employed by the Bondholders'
Committee; the Liquidating Trust and any professional Persons
retained by it; the Liquidating Trustee; Morris, Nichols, Arsht
& Tunnell; Camhy Karlinsky & Stein; Price Waterhouse; Haynes
and Boone, L.L.P.; Alvarez & Marsal, Inc.; and Oppenheimer &
Co., Inc.; any of their affiliates nor any of their officers,
directors, partners, associates, employees, members or agents
(collectively the "Exculpated Persons"), shall have or incur
any liability to any Person for any act taken or omission made
in good faith in connection with or related to the
Bankruptcy Cases or actions taken therein, including
negotiating, formulating, implementing, confirming or
consummating the Plan, the Disclosure Statement, or any
contract, instrument, or other agreement or document created
in connection with the Plan. The Exculpated Persons shall
have no liability to any Creditors or Equity Security
Holders for actions taken under the Plan, in connection
therewith or with respect thereto in good faith, including,
without limitation, failure to obtain Confirmation of the Plan
or to satisfy any condition or conditions, or refusal to waive
any condition or conditions, precedent to Confirmation or to
the occurrence of the Effective Date. Further, the Exculpated
Persons will not have or incur any liability to any holder of
a Claim, holder of an Interest, or party-in-interest herein or
any other Person for any act or omission in connection
with or arising out of their administration of the Plan or the
property to be distributed under the Plan, except for gross
negligence or willful misconduct as finally determined by the
Bankruptcy Court, and in all respects such persons will be
entitled to rely upon the advice of counsel with respect
to their duties and responsibilities under the Plan.
9.4 Other Documents and Actions. The Debtors, the
DebtorsIn-Possession, the Indenture Trustee and Liquidating
Trustee may execute such documents and take such other action
as is necessary to effectuate the transactions provided for in
the Plan.
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9.5 Post-Consummation Effect of Evidences of Claims
or Interests. Senior Notes, Old Common Stock certificates,
Old Warrants and other evidences of Claims against or
Interests in the Debtors shall, effective upon the Effective
Date, represent only the right to participate in the
distributions contemplated by the Plan. Holders of Old
Common Stock, Old Warrants, and Securities Claims will receive
no distribution.
9.6 Term of Injunctions or Stays. Unless
otherwise provided, all injunctions or stays provided for
in the Reorganization Case pursuant to sections 105 or
362 of the Bankruptcy Code or otherwise and in effect on the
Confirmation Date shall remain in full force and effect until
the Effective Date.
ARTICLE 10
CONFIRMABILITY OF PLAN AND CRAMDOWN
The Debtors request Confirmation under section 1129(b)
of the Bankruptcy Code if any impaired class does not accept
the Plan pursuant to section 1126 of the Bankruptcy Code. In
that event, the Debtor reserves the right to modify the Plan
to the extent, if any, that Confirmation of the Plan under
section 1129(b) of the Bankruptcy Code requires modification.
ARTICLE 11
RETENTION OF JURISDICTION
Notwithstanding the entry of the Confirmation Order or
the occurrence of the Effective Date, the Bankruptcy Court
shall retain such jurisdiction over the Reorganization Case
after the Effective Date as is legally permissible,
including, without limitation, jurisdiction to:
1. Allow, disallow, determine, liquidate, classify
or establish the priority or secured or unsecured status of
or estimate any Claim or Interest, including, without
limitation, the resolution of any request for payment of any
Administrative Claim or Indenture Trustee expenses and the
resolution of any and all objections to the allowance or
priority of Claims or Interests;
2. Grant or deny any and all applications
for allowance of compensation or reimbursement of expenses
authorized pursuant to the Bankruptcy Code or the Plan, for
periods ending on or before the Effective Date;
3. Resolve any motions pending on the Effective
Date to assume, assume and assign or reject any executory
contract or unexpired lease to which the Debtors are parties or
with respect to which the Debtors may be liable and to hear,
determine and, if necessary, liquidate, any and all Claims
arising therefrom;
4. Ensure that distributions to holders of
Allowed Claims and Allowed Interests are accomplished pursuant
to the provisions of the Plan;
5. Decide or resolve any and all
applications, motions, adversary proceedings, contested or
litigated matters and any other matters or grant or deny any
applications involving the Debtors that may be pending on the
Effective Date;
22
6. 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 or
the Disclosure Statement;
7. Resolve any and all controversies, suits or
issues that may arise in connection with the
consummation, interpretation or enforcement of the Plan or
any entity's obligations incurred in connection with the Plan,
including the provisions of Article 9 hereof;
8. Modify the Plan before or after the Effective
Date pursuant to section 1127 of the Bankruptcy Code, or to
modify the Disclosure Statement or any contract, instrument,
release, or other agreement or document created in connection
with the Plan or the Disclosure Statement; or remedy any
defect or omission or reconcile any inconsistency in any
Bankruptcy Court Order, the Plan, the Disclosure Statement
or any contract, instrument, release, or other agreement or
document created in connection with the Plan or the Disclosure
Statement, in such manner as may be necessary or appropriate to
consummate the Plan, to the extent authorized by the Bankruptcy
Code;
9. 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;
10. Enter and implement such orders as are
necessary or appropriate if the Confirmation Order is for
any reason modified, stayed, reversed, revoked or vacated;
11. Determine any other matters that may arise
in connection with or relate to the Plan, the Disclosure
Statement, the Confirmation Order or any contract, instrument,
release, or other agreement or document created in connection
with the Plan or the Disclosure Statement; and
12. Enter an order concluding the Reorganization Case.
If the Bankruptcy Court abstains from exercising jurisdiction
or is otherwise without jurisdiction over any matter arising
out of the Reorganization Case, including, without
limitation, the matters set forth in this Article, this
Article shall have no effect upon and shall not control,
prohibit, or limit the exercise of jurisdiction by any
other court having competent jurisdiction with respect to
such matter.
ARTICLE 12
MISCELLANEOUS PROVISIONS
12.1 Fractional Dollars. Any other provision of the
Plan notwithstanding, no payments of fractions of dollars will
be made to any holder of an Allowed Claim. Whenever any
payment of a fraction of a dollar to any holder of an
Allowed Claim would otherwise be called for, the actual
payment made will reflect a rounding of such fraction to the
nearest whole dollar (up or down).
12.2 Modification of Plan. The Debtors reserve the
right, in accordance with the Bankruptcy Code, to amend or
modify the Plan prior to the entry of the Confirmation Order.
After the entry of the Confirmation Order, the Debtors and,
after the liquidation of the Debtors, the Liquidating
Trustee 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.
23
12.3 Withdrawal of Plan. The Debtors reserve the right,
at any time prior to entry of the Confirmation Order, to revoke
or withdraw the Plan. If the Debtors revoke or withdraw the
Plan under this section 12.3 or if the Effective Date does not
occur, then the Plan shall be deemed null and void. In that
event, nothing contained in the Plan shall be deemed to
constitute a waiver or release of any Claims by or against the
Debtors or any other person, or to prejudice in any manner
the rights of the Debtors or any other person in any further
proceedings involving the Debtors.
12.4 Governing Law. Except to the extent the
Bankruptcy Code, the Bankruptcy Rules or the Delaware General
Corporation Law are applicable, the rights and obligations
arising under the Plan shall be governed by, and construed
and enforced in accordance with the laws of the State of
Delaware, without giving effect to the principles of conflicts
of law thereof.
12.5 Time. In computing any period of time prescribed
or allowed by this Plan, the day of the act, event, or default
from which the designated period of time begins to run shall
not be included. The last day of the period so computed
shall be included, unless it is not a Business Day or, when the
act to be done is the filing of a paper in court, a day on
which weather or other conditions have made the clerk's office
inaccessible, in which event the period runs until the end of
the next day which is not one of the aforementioned days.
When the period of time prescribed or allowed is less than
eight days, intermediate days that are not Business Days shall
be excluded in the computation.
12.6 Payment Dates. Whenever any payment to be made
under the Plan is due on a day other than a Business Day, such
payment will instead be made, without interest, on the next
Business Day.
12.7 Headings. The headings used in this Plan are
inserted for convenience only and neither constitute a portion
of the Plan nor in any manner affect the provisions of the Plan.
12.8 Successors and Assigns. The rights, benefits
and obligations of any entity named or referred to in the Plan
shall be binding on, and shall inure to the benefit of, any
heir, executor, administrator, successor or assign of such
entity.
12.9 Severability of Plan Provisions. If prior
to Confirmation any term or provision of the Plan, which does
not govern the treatment of Claims or Interests or the
conditions of the Effective Date, is held by the
Bankruptcy Court to be invalid, void, or unenforceable, the
Bankruptcy Court shall have the power to alter and interpret
such term or provision to make it valid or enforceable to
the maximum extent practicable, consistent with the original
purpose of the term or provision held to be invalid, void,
or unenforceable, and such term or provision shall then be
applicable as altered or interpreted. Notwithstanding any
such holding, alteration or interpretation, the remainder of
the terms and provisions of the Plan will remain in full force
and effect and will in no way be affected, impaired, or
invalidated by such holding, alteration, or
interpretation. The Confirmation Order shall constitute
a judicial determination and shall provide that each term
and provision of the Plan, as it may have been altered or
interpreted in accordance with the foregoing, is valid and
enforceable pursuant to its terms.
12.10 No Admissions. Notwithstanding anything herein
to the contrary, nothing contained in the Plan shall be deemed
as an admission by the Debtors with respect to any matter set
forth herein, including, without limitation, liability on any
Claim or the propriety of any Claims classification.
12.11 Dissolution of Unsecured Creditors'
Committee. The Unsecured Creditors' Committee will be dissolved
on the day after the Effective Date, and the members
thereof shall be released and discharged of and from further
authority, duties, responsibilities, liabilities and
objections related to and arising from the Reorganization
Case.
24
12.12 Notices. Notices to be provided under this Plan
shall be transmitted as follows:
LIQUIDATING TRUSTEE
Chriss Street, Liquidating Trustee
Chriss Street & Company
1111 Bayside Drive, Suite 100
Corona del Mar, CA 92625-1755
with a copy to:
MORRIS, NICHOLS, ARSHT & TUNNELL
William H. Sudell, Jr. (No. 463)
Robert J. Dehney (No. 3578)
1201 North Market Street
P.O. Box 1347
Wilmington, Delaware 19899-1347
CAMHY KARLINSKY & STEIN LLP
David Neier
Elaine M. Laflamme (EL 7200)
Christina Chiaramonte (CC 9667)
1740 Broadway, 16th Floor
New York, New York 10019-4315
HAYNES AND BOONE, L.L.P.
Robin E. Phelan
901 Main Street, Suite 3100
Dallas, TX 75201
with a copy to:
John D. Penn
Haynes and Boone, L.L.P.
201 Main Street, Suite 2200
Fort Worth, TX 76102-3126
25
Dated: _____________, 1998
MORRIS, NICHOLS, ARSHT & TUNNELL
_________________________________
William H. Sudell, Jr.(No. 463)
Robert J. Dehney (No.3578)
Derek C. Abbott (No.3376)
1201 N. Market Street
P.O. Box 1347
Wilmington, DE 19899
(302) 658-9200
and
CAMHY KARLINSKY & STEIN LLP
David Neier (DN 5391)
1740 Broadway, 16th Floor
New York, New York 10019-4315
Attorneys for Debtors
26
EXHIBIT "A" TO THE PLAN
LIQUIDATING TRUST AGREEMENT DATED JUNE 24, 1998