IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
IN RE: S Chapter 11
S
FRUEHAUF TRAILER S CASE NO. 96-1563 (PJW)
CORPORATION, S
MARYLAND SHIPBUILDING & S
DRYDOCK COMPANY, F.G.R., INC., S
JACKSONVILLE SHIPYARDS, INC., S
FRUEHAUF INTERNATIONAL, S Jointly Administered
LIMITED, FRUEHAUF CORPORATION, S
THE MERCER CO., DEUTSCHE- S
FRUEHAUF HOLDING S
CORPORATION, MJ HOLDINGS, INC., S
and E. L. DEVICES, INC., S
S
Debtors. S
ORDER AND JUDGMENT CONFIRMING THE DEBTORS'
AMENDED JOINT PLAN OF REORGANIZATION UNDER
CHAPTER 11 OF THE UNITED STATES BANKRUPTCY CODE
AND GRANTING RELATED RELIEF
On September 16, 1998, a hearing was held concerning
confirmation (the "Confirmation Hearing") of the Debtors'
Amended Joint Plan of Reorganization, dated July 28, 1998
(together with any and all modifications and supplements thereto
as of the date hereof, the "Plan"), that was filed by 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");
On the basis of the record of this case, including the
evidence presented at the Confirmation Hearing, and on the basis
of the Findings of Fact and Conclusions of Law entered
contemporaneously herewith (whose definitions and the
definitions contained in the Plan are incorporated herein by
reference) and which are incorporated herein by reference, and
the Court's oral Findings of Fact and Conclusions of Law on the
record at the hearing on Confirmation of the Plan, which also
are incorporated herein by reference, a transcript of which
shall be filed by the Debtors as soon as practicable;
The Court, having considered all objections ("Objections") to
confirmation of the Plan, including the objections of
Kelsey-Hayes Company, the Authorized Representative of Retirees,
California Portland Cement, and Furnival/State Machinery
Company, and to this Order and Judgment (hereinafter, "Order");
Now, upon request of the Debtors and after due deliberation,
the Court ORDERS, ADJUDGES AND DECREES THAT:
1. This Order shall be effective according to its terms upon
the entry thereof. The provisions ofparagraph 2 -10, 21, 26, 29,
30-38, 44-47, and this paragraph 1, shall be operative upon the entry of
this Order, and the remaining provisions of this Order shall be
operative solely as of the Effective Date.
2. The Plan complies with all applicable provisions of the
Bankruptcy Code and applicable Bankruptcy Rules relating to
confirmation, including those provisions contained in section
1129(b) pertaining to "cram down." The Plan and all provisions
thereof, including the Liquidating Trust Agreement, as modified
by agreements announced on the record in open Court and by the
Court's ruling on the record, are hereby confirmed in all
respects. All settlements and compromises provided pursuant to
the terms and provisions of the Plan are approved pursuant to
Bankruptcy Rule 9019(a) in the overall context of the Plan as
just, equitable, reasonable, and non-discriminatory compromises
of the controversies and/or Claims resolved by such settlements.
3. The First Modifications filed by the Debtors on September 16,
1998 to the Plan or to the Liquidating Trust Agreement are
hereby approved in accordance with Section 12.2 of the Plan and
applicable provisions of the Bankruptcy Code and Bankruptcy
Rules.
4. The record of the Confirmation Hearing is closed.
5. To the extent any Objections to confirmation of the Plan have
not been resolved or withdrawn prior to entry of this Order or
are not cured by the relief granted herein, all such Objections
are overruled, except to the extent such Objections are deemed
Claims objections, as to which Claims objections no ruling is
being made. All withdrawn Objections are deemed withdrawn with
prejudice.
6. Pending the occurrence of the Effective Date, the Debtors
shall be subject to all of the provisions of the Bankruptcy
Code, except as specifically provided in the Plan, the
Liquidating Trust Agreement, or this Order. Without limiting
the generality of the foregoing, pending the occurrence of the
Effective Date:
a. The Debtors are authorized to operate and manage their
businesses and assets in compliance with the terms and
provisions of the Plan, and in accordance with the Bankruptcy
Code.
b. All property to be transferred or otherwise dealt with in
the Plan shall remain property of the Debtors' bankruptcy
estates, and such bankruptcy estates shall continue until the
occurrence of the Effective Date.
c. Unless otherwise ordered by the Court, all injunctions or
stays provided for in the Reorganization Case pursuant to
sections 105 or 362 of the Bankruptcy Code or otherwise in
effect on the Confirmation Date shall continue in effect until
the Effective Date, provided however, that this provision shall
not affect prior orders of this Court granting relief from the
stay.
d. Notwithstanding Confirmation of the Plan, this Court
retains jurisdiction as is provided in Article 11 of the Plan.
7. In accordance with section 1142 of the Bankruptcy Code, the
Debtors, the Indenture Trustee and the Liquidating Trustee, and
any and all other parties-in-interest herein are authorized and
directed, without the necessity of any further corporate action
or other approval, to immediately take any action necessary or
appropriate to implement, effectuate and consummate the Plan and
the Liquidating Trust, including all modifications thereto as of
the date hereof and any other modifications hereafter approved
in accordance with this Order (the "Approved Modifications"),
and any transactions contemplated thereby or by this Order in
accordance with their respective terms, as such terms may be
amended from time to time (collectively, the "Provisions") in
accordance with the applicable provisions of the Plan and the
Bankruptcy Code and Rules, including, without limitation, the
issuance, execution, and delivery of the Liquidating Trust
Agreement and any other document, certificate, agreement or
instrument and the transfer of any security.
8. Upon entry of this Order (and prior to the Effective Date),
the Debtors are authorized and directed to form and to
incorporate in accordance with the laws of the state of
Delaware, JSI Property Corp. and Pension Corp. The Debtors are
authorized to prepare and execute Bylaws and Certificates of
Incorporation for JSI Property Corp. and Pension Corp. and to
capitalize such corporations in the minimum amount required by
the laws of the state of Delaware.
9. Upon entry of this Order (either prior to the Effective Date
or after 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 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.
10. Any of the Chief Executive Officer, the President, any Vice
President and the Secretary of the Debtors, and, after the
Effective Date, the Liquidating Trustee, is authorized and
designated, upon the entry of this Order, to execute any
agreements, and any other certificates, instruments or documents
that such officer deems necessary or advisable in order to
consummate and effectuate the Plan and the Provisions as of the
time they are to become effective. No further approval of the
Board of Directors or shareholders of the Debtors shall be
required with respect to the implementation and consummation of
the Plan or the Provisions.
11. The Debtors, the Indenture Trustee and the Liquidating
Trustee are authorized, directed and instructed to take all
steps necessary to implement the terms of the Plan in accordance
with the terms thereof both prior to and as of the Effective
Date. On the Effective Date, the following transactions are
approved and ratified and are directed to occur:
a. The Debtors' estates shall be substantively consolidated for
purposes of distributions under the Plan. Pursuant to Section
6.14 of the Plan, a creditor who had a pre-petition right of
recovery against more than one Debtor for the same Claim will be
limited to one Allowed Claim in the Allowed amount owed to the
creditor. Accordingly, all duplicate claims listed under the
column "Claims To Be Disallowed" in Exhibit B of the Plan are
hereby disallowed in full and expunged. All intercompany claims
shall be extinguished.
b. In response to the Debtors' Motion to Fix the Distribution
Fund, the Court fixes the Distribution Fund at $4,059,971.37.
The Debtors shall deposit $4,059,971.37 into the Distribution
Fund and shall transfer the Distribution Fund to the
Liquidating Trust on behalf of and for the benefit of the
holders of Allowed Administrative, Priority and Pre-Petition Tax
Claims.
c. The Debtors shall 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.
d. Jacksonville Shipyards, Inc. shall transfer the Hogan's
Creek Property and Pickettsville Property to JSI Property Corp.
e. The Indenture Trustee shall 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.
f. 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 holders of
Class A Beneficial Interests in the Liquidating Trust.
g. 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.
h. The Debtors shall be dissolved or liquidated and such
dissolutions shall be deemed authorized and approved in all
respects and on the Effective Date, the 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; provided however, that the non-Debtor
subsidiaries of the Debtors transferred to the Liquidating Trust
shall not be dissolved.
12. The Liquidating Trust Agreement, in the form presented at
the Confirmation Hearing, is approved and the Liquidating
Trustee shall, on and after the Effective Date, have the duties
and responsibilities outlined in such Liquidating Trust
Agreement. The Debtors are authorized to engage the services of
Chriss Street as Liquidating Trustee on substantially the terms
described in Section IV(L) of the Disclosure Statement and, by
entry of this Order, his retention is hereby approved. The
Liquidating Trustee shall be entitled to retain employees and
professionals to assist in the performance of his duties in
accordance with the terms of the Liquidating Trust. The
Liquidating Trustee may pay the professionals he retains without
further court approval.
13. The Trust Advisory Committee shall be comprised of Kevin
Schweitzer and Thomas L. Kempner, Jr.
14. The Official Committee of Unsecured Creditors (the
"Creditors' Committee") and the Unofficial Committee of Senior
Secured Noteholders (the "Bondholders' Committee") shall 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 and liabilities related to
or arising from the Reorganization Case. Furthermore, the
Authorized Representative of the Retirees shall be released and
discharged of and from further authority, duties,
responsibilities and liabilities related to or arising from the
Reorganization Case after the Effective Date.
15. The Indenture Trustee for the Senior Notes may continue to
provide services after the Effective Date in accordance with the
terms of the Plan and shall be entitled to compensation and
reimbursement for services rendered and expenses incurred in
connection with making the initial distributions to the holders
of the Senior Notes after the Effective Date. Distributions
16. The treatments for classes and claims set forth in Articles
3 and 4 of the Plan and the distributions procedures set forth
in Article 7 of the Plan comply with the applicable provisions
of the Bankruptcy Code and Rules and are hereby approved as
reasonable and appropriate.
17. 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.
18. Distributions required to be made on a particular date, or
any other actions pertaining to distributions that are 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.
19. Distributions to the holders of Allowed Administrative,
Priority and Pre-petition Tax Claims shall be made by the
Liquidating Trustee from the Distribution Fund. The holders of
Allowed Administrative, Priority and Pre-petition Tax Claims
shall have a beneficial interest in the Liquidating Trust's
interest in the Distribution Fund and shall not have a
beneficial interest in any other assets of the Liquidating Trust.
20. The Liquidating Trustee shall deliver the Requisite
Percentage of Class A Beneficial Interests to the Indenture
Trustee on the Effective Date. The Indenture Trustee shall
distribute the Wabash Securities and the Class A Beneficial
Interests, Pro Rata, to the holders of the Senior Notes.
21. The Indenture Trustee shall, if it has not already done so,
certify to the Debtors a list of the registered holders of the
Senior Notes as of the Ballot Record Date (August 7, 1998)
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. Notwithstanding the existence of proofs
of claim that may have been filed in these Reorganization Cases
by alleged holders of Senior Notes, or information in the
Debtors' Schedules of Liabilities listing record holders of
Senior Notes on the Petition Date, the Indenture Trustee shall
distribute all distributions of property to be made pursuant to
the Plan to the record holders of Senior Notes, as of the Ballot
Record Date, unless, prior to such 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 subsequent transfer of such Claim, in which
event the Indenture Trustee shall distribute, or cause to be
distributed, all distributions of property to the holder of such
Claim as of the distribution date, pursuant to Bankruptcy Rule
3021.
22. The Liquidating Trustee shall pay all reasonable fees and
expenses of the Indenture Trustee in acting as distribution
agent to the holders of the Senior Notes, as and when such fees
and expenses become due, without further order of the Bankruptcy
Court. The payments shall not be made from the Distribution
Fund.
23. The transfer of the Wabash Securities to the Indenture
Trustee, the transfer of the Distribution Fund to the
Liquidating Trust, the transfer of the Hogan's Creek Property
and Pickettsville Property to JSI Property Corp., the deemed
foreclosure of the Foreclosed Assets by the Indenture Trustee,
and the transfers by the Debtors to the Liquidating Trust
contemplated by the Plan and in the preceding paragraphs of this
Order, will be legal, valid, binding and effective transfers of
property and will, to the fullest extent permitted by the
Bankruptcy Code, vest in the transferee good title to such
property, free and clear of all liens, Claims and encumbrances,
except as otherwise provided in the Plan or this Order.
24. 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.
The voiding of the indentures and Old Securities shall not act
as a bar to the assertion by the Indenture Trustee of a Claim
for services rendered after the Effective Date. The Debtors
retain the right to object to such Claims on other grounds.
25. On the Effective Date, all outstanding stock option
agreements under any plans from which stock option rights derive
or any other option agreements, together with such plans, shall
each be canceled and terminated and each shall be deemed void
and of no force, effect or value.
Plan Implementation/Effect
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26. Each of the actions taken, payments made and liens and
security interests granted on, after, or before the Effective
Date pursuant to the provisions of the Plan and this Order shall
be valid, binding and enforceable and not preferential,
fraudulent or an otherwise avoidable transfer under the
Bankruptcy Code or under applicable law of the United States or
any state, province or other jurisdiction.
27. In accordance with section 1141 of the Bankruptcy Code, the
Plan and each of its provisions and the Liquidating Trust
Agreement, together with all Approved Modifications, shall be
binding upon the Debtors, each Person or entity acquiring or
receiving property under the Plan, each lessor or lessee of
property to or from the Debtors, each holder of a Claim against
or Equity Interest in the Debtors, whether or not the Claim or
Equity Interest of such Creditor or Equity Interest Holder is
impaired under the Plan and whether or not such Creditor or
Equity Interest Holder has filed, or is deemed to have filed, a
proof of Claim or Equity Interest, or has accepted or rejected
the Plan, and each party to this case, and irrespective of
whether such provision of the Plan is specifically mentioned or
otherwise referred to in this Order.
28. In accordance with section 1141 of the Bankruptcy Code and
except as provided in the Plan, any property transferred or
otherwise dealt with in the Plan shall be free and clear of all
Claims against and Equity Interests in the Debtors. An
exception to the foregoing is set forth in Section 3.1(c)(iii)
and Section 3.2 of the Plan, which provides that to the extent
that the holder of a Tax Claim or a Pre-petition Tax Claim holds
a lien to secure its Claim under applicable state law, to the
extent that such lien survives the deemed foreclosure by the
holders of the Senior Notes on the Effective Date, the lien
shall be released from all assets of the Debtors and shall
attach on the Effective Date to the Distribution Fund. To the
extent that a Pre-petition or post-petition Tax Claim is a
Disputed Claim, any lien securing such Disputed Claim under
applicable state law that survives the deemed foreclosure by the
holders of the Senior Notes shall attach to the Distribution
Fund reserve for such Claim. Upon disallowance of a Disputed
Tax Claim or allowance and payment of a Tax Claim, any lien
securing such Claim shall be released. Either the Debtors or
the Liquidating Trustee may surrender the property securing a
Tax Claim to the holder of such Claim in full satisfaction of
its Claim.
29. None of the Debtors, their officers and directors and the
professional Persons employed by them, 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 Authorized Representative of
Retirees and its professional Persons; 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.
30. Pursuant to sections 1123(a) and 1142(a) of the Bankruptcy
Code, the provisions of this Order, the Plan and the Liquidating
Trust Agreement, as modified by the Approved Modifications and
announced in open Court at the Confirmation Hearing, and all
other agreements and documents executed and delivered pursuant
to the Plan shall apply and be enforceable notwithstanding any
otherwise applicable nonbankruptcy law.
31. The Liquidating Trustee shall have the right, to the full
extent permitted by section 1142 of the Code, to apply to this
Court for an order, notwithstanding any otherwise applicable
nonbankruptcy law, directing any appropriate entity to execute
and deliver an instrument or perform any other act necessary to
implement the Plan or the provisions of this Order.
32. No claims of the Debtors against any person or entity shall
be discharged, released or compromised pursuant to the Plan or
this Order except to the extent specifically set forth in the
terms and provisions of the Plan.
Exemptions
- ----------
33. Pursuant to section 1145 of the Code, distribution of the
Wabash Securities to the holders of the Allowed Class 2 Claims
and the delivery of the evidence of the Beneficial Interests to
holders of Allowed Class 2 and Class 4 Claims is exempt from the
registration requirements set forth in Section 5 of the
Securities Act of 1933, as amended (15 U.S.C. S 77(e), as
amended) (the "Securities Act") and from any state or local law
requiring registration for the offer or sale of a security or
registration or licensing of an issuer of, underwriter of, or
broker or dealer in, a security. Subsequent resales of the
Wabash Securities or the evidence of Beneficial Interests may be
effected without registration under Section 5 of the Securities
Act or compliance with Rule 144 thereunder, provided that the
selling holders are not "underwriters," as defined in Section
1145(b)(1) of the Bankruptcy Code.
34. The transfer of the stock of Pension Corp., JSI Property
Corp. and Fruehauf de Mexico is exempt from the registration
requirements of the Securities Act pursuant to Section 1145 of
the Code because the Stock is the Stock of "affiliates" of the
Debtors who are participating in the Plan with the Debtors.
35. The issuances, transfers or exchanges of securities under
the Plan (including the issuance of the Class A Beneficial
Interests and transfers of the Wabash Securities, the transfer
of the Pension Corp., JSI Property Corp. and Fruehauf de Mexico
Stock to the Liquidating Trust, and the transfer of the Class A
Beneficial Interests to holders of Allowed Class 2 and Class 4
Claims), the transfers of property pursuant to the Plan, as well
as any sale of such property by the Liquidating Trust, and the
making or delivery of an instrument of transfer, shall be exempt
from tax to the fullest extent permitted by Section 1146(c) of
the Bankruptcy Code.
Timing/ Procedures
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36. The Effective Date shall occur on October 1, 1998 if no
stay of the Confirmation Order is in effect. The Debtors shall
file a Notice of Effective Date with the Court on or prior to
the Effective Date. Upon the filing of the notice, without
further order of the Court or other action, the Effective Date
of the Plan shall be deemed to have occurred, the Plan shall be
fully effective, and the provisions of this Order and the Plan
related to the period on or after the Effective Date shall come
into full force and effect. The Debtors shall serve copies of
the notice of the Effective Date of the Plan, as soon as
practicable after the Effective Date and cause such notice to be
published, in the same manner as specified in paragraph 38 below with
respect to this Order.
37. "Substantial consummation" of the Plan as defined in section
1101(2) of the Code, shall be deemed to occur upon (1) the
Debtors' funding of the Distribution Fund; (2) the distribution
of the Wabash Securities to the holders of Allowed Class 2
Claims; (3) the deemed foreclosure of the Debtors' assets by the
Indenture Trustee on behalf of the holders of Senior Notes and
the transfer of such assets to the Liquidating Trust on behalf
of and for the benefit of the holders of Class A Beneficial
Interests in the Liquidating Trust; and (4) the Debtors'
transfer of any other assets, free and clear of claims, to the
Liquidating Trust.
38. Pursuant to Bankruptcy Rule 3020(c), the Debtors shall (a)
within five (5) business days after the entry of this Order
serve notice of the entry of this Order as provided in
Bankruptcy Rule 2002(f) to all persons and entities listed on
the 2002 Service List, to be sent by first class mail, postage
prepaid, except to such parties who may be served by hand or
facsimile or overnight courier, which service is hereby
authorized, and (b) cause such notice to be published as soon as
practicable in The Wall Street Journal, national edition and
such other publications as the Debtors may designate.
39. The Debtors are authorized to reject on 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 prior
to the Confirmation Date. All proofs of claim with respect to
Claims arising from the rejection of executory contracts or
unexpired leases for which no earlier bar date has been
established shall be filed with the Bankruptcy Court within
forty-five (45) days after the mailing of notice of Confirmation
Order. Any Claims arising from any such rejection not filed
within such times shall be forever barred from assertion against
the Debtors, their estates and property, or any successor to the
Debtors.
40. All applications for final compensation of professional
persons employed by the Debtors, the Creditors' Committee, the
Authorized Representative or the Bondholders' Committee,
pursuant to orders entered by the Bankruptcy Court, on account
of services rendered prior to the Effective Date, and all other
requests for payment of administrative costs and expenses
incurred prior to the Effective Date pursuant to Code sections
507(a)(1) or 503(b) shall be filed with the Bankruptcy Court and
served on the Liquidating Trustee no later than forty-five (45)
days after the Effective Date. Holders of Administrative Claims
that are required to File a request for payment of such Claims,
Claims of professionals requesting compensation or reimbursement
of expenses and the holders of any Claims for federal, state or
local taxes that do not File such requests by the applicable bar
date shall be forever barred from asserting such Claims against
the Debtors, the Liquidating Trust, any of their affiliates or
any of their respective property. With regard to professional
persons employed pursuant to orders entered by the Bankruptcy
Court, nothing in this paragraph or Order precludes them from
receiving (or the Debtors or Liquidating Trust from paying)
interim amounts due and owing to such professionals, pursuant to
the Administrative Order Under 11 U.S.C. SS 105(a) and 331
Establishing Procedures for Interim Compensation and
Reimbursement of Expenses of Professionals entered on October 8,
1996 in this case, for services rendered prior to the Effective
Date. All such interim amounts paid to such professionals will
be subject to final approval of the Bankruptcy Court according
to the process outlined in this paragraph.
41. After the Effective Date, the Liquidating Trust shall retain
and have the exclusive right to object to Claims on any basis.
Except as provided for with respect to applications of
professionals for compensation and reimbursement of expenses
(see paragraph 42 below), 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 and twenty (120) days
after the Effective Date, and (b) one hundred and 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.
42. Objections to Administrative Claims of professionals seeking
reimbursement from the estate timely filed in accordance with
this Order must be filed no later than seventy (70) days after
the Effective Date. Except as otherwise provided herein,
applications need not be filed for payment of any claim arising
on or after the Effective Date.
43. Except as otherwise provided in the Plan, or in any
contract, instrument, release, or other agreement entered into
in connection with the Plan, on and after the Effective Date, in
accordance with section 1123(b) of the Bankruptcy Code, the
Liquidating Trust 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 Trustee or any successor to or designee
of the Liquidating Trust may pursue those rights of action, as
appropriate, in accordance with what is in the best interests of
the holders of the Class A Beneficial Interests of the
Liquidating Trust.
44. Pursuant to section 12.2 of the Plan, the Debtors shall have
the right to modify or amend the Plan and the Liquidating Trust
Agreement to the fullest extent permitted by law. Any such
modifications shall be heard by the Court on such expedited
notice as the Debtors shall request and the Court shall
determine is reasonable under the circumstances given. 45. At
all times prior to the Effective Date, without further order of
the Court, the Debtors are authorized to make non-substantive
modifications to the Liquidating Trust Agreement in order to
make corrections or modifications of a typographical and
ministerial nature.
46. Notwithstanding the entry of this Order or the occurrence of
the Effective Date, this Court shall retain such jurisdiction
over the Reorganization Case after the Effective Date as is set
forth in Article 11 of the Plan.
47. To the extent any Claim is payable, in whole or in part,
pursuant to an insurance policy or policies, issued by an
insurance company on behalf of a Debtor, or any predecessor to a
Debtor, holders of such Claim shall be entitled to maintain
actions after the Effective Date against the applicable Debtor
and/or insurance company; provided, however, that any award
granted in any such action shall be recoverable only from the
applicable insurance company and shall be net of any deductible,
self insured retention or similar contractual undertaking.
Neither confirmation of the Plan nor the dissolution of the
Debtors pursuant to the Plan shall alter an allegedly injured
party's right to coverage under any insurance policy. The
Liquidating Trustee shall provide cooperation to the extent
reasonably practicable given the Liquidating Trustee's staff, to
any Claimant seeking information regarding the existence and
terms of any such insurance policy.
48. All creditors' rights to setoffs under section 553 of the
Bankruptcy Code, with respect to Claims asserted by the Debtors
or on behalf of the Liquidating Trust, shall be preserved and
are not impaired by the Plan, provided that a set off may not be
exercised without permission from this Court.
49. Subject to final documentation in a stipulated Order which
will be presented to the the Court, the Court approves a
settlement put on the record at the confirmation hearing on
September 16, 1998, by and between the Debtor and Kelsey-Hayes
Company.
50. Having approved a settlement between the Debtors and
Congress Financial Corporation ("Congress") by Order dated
September 16, 1998, the Court, at the request of Congress,
hereby orders the ballot submitted by Congress to reject the
Plan to be withdrawn.
51. Having heard the objection of the Authorized Representative
of Retirees to confirmation of the Plan and the responses
thereto by the Debtors and the Unofficial Committee Senior
Secured Noteholders, with the consent of the Debtors, it is
hereby ordered that, nothing herein or in the Plan shall
prejudice the rights of retirees to object (or pursue any other
lawful remedy) if and when the Debtors seek to recapture
residual assets in a pension plan pursuant to ERISA S 4044(d) ,
29 U.S.C. S 1344(d)(1), or any other law, rule or regulation .
All such rights of retirees are expressly reserved.
52. This is a final order immediately subject to appeal.
SIGNED this 17th day of September, 1998.
/s/Peter J. Walsh
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HONORABLE PETER J. WALSH
UNITED STATES BANKRUPTCY JUDGE