IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
In re: ) Chapter 11
)
FRUEHAUF TRAILER )
CORPORATION, et. al. ) Case Nos. 96-1563
) Through 96-1572 (PJW)
)
) (Jointly Administered)
)
Debtors )
ORDER AMENDING (A) THE DEBTORS' AMENDED
JOINT PLAN OF REORGANIZATION, (B) THE ORDER AND
JUDGEMENT CONFIRMING THE DEBTORS' PLAN AND
(C) THE ELEVENTH OMNIBUS ORDER
On October 8, 1998, a hearing (the "Hearing") was held
concerning the motion of the above-captioned debtors and
debtors-in-possession (the "Debtors") dated October 5, 1998 (the
"Motion") to (a) the Debtors' Amended Joint Plan of
Reorganization dated July 28, 1998 (the "Plan"), (b) the Order
and Judgement Confirming the Plan under Chapter 11, dated and
entered September 17, 1998 (Docket No. 1524) (the "Confirmation
Order"), and (c ) the Order on Allowance of Claims dated
September 16, 1998 (the "Eleventh Omnibus Order");
On the basis of the record of this case, including the
evidence presented at the Hearing; and the Court, having
considered the motion dated September 28, 1998, of Certain
Underwriters at Lloyd's, London and Certain London Market
Insurance Companies (collectively, the "London Insurers") to
amend the Confirmation Order and Eleventh Omnibus Order, and any
objections to the relief requested herein and the arguments of
counsel at the hearing on behalf of Furnival/State Machinery
Company, the London Insurers, certain individuals who filed
unsecured proofs of claim against Maryland Shipbuilding & Dry
Dock Company and who are represented by the Offices of Peter G.
Angelos, Esq., 5905 Harford Road, Union Park Center, Baltimore,
Maryland 21214, Attn: Paul Matheny, Esq. and were the subject of
the Eleventh Omnibus Order, National Union Fire Insurance of
Pittsburgh, Pa. And related companies that filed proof of claim
number 8761 ("National Union"), the Unofficial Committee of
Senior Secured Noteholders, the Official Committee of Unsecured
Creditors, and the Debtors (collectively, the "Parties");
Now, upon request of the Debtors and after due
deliberation, the Court ORDERS, ADJUDGES AND DECREES THAT:
1. The Motion is granted to the extent set forth below.
2. All terms not otherwise defined herein shall have the
meanings ascribed to them in the Plan.
3. On September 17, 1998, the Bankruptcy Court entered the
Findings of Fact and Conclusions of Law Regarding Order and
Judgement Confirming the Debtos' Plan (the "Findings of Fact")
(Docket No. 1523), the Confirmation Order and the Amended First
Modifications to the Debtors' Plan (the "Plan Modifications")
(Docket No. 1525).
4. This Court has jurisdiction over this matter pursuant to 28
U.S.C. SS 157 and 1334, and the Orders in this District dated
July 23, 1984 and June 13, 1994 referring to the bankruptcy
judges cases arising under title 11 and proceedings arising
under title 11 or arising in or related to a case under title
11, which Orders remain applicable in these cases. This is a
core proceeding pursuant to 28 U.S.C. SS 157(b)(2). Venue is
proper before this Court pursuant to 28 U.S.C. SS 1408 and 1409.
The statutory basis for the relief sought herein is section 1127
of the Bankruptcy Code.
5. The Amendments to the Plan, the Confirmation Order and the
Eleventh Order set forth below are approved.
6. A new Section 1.31a is added to the Plan to state:
"FrudeMex" means FRUDEMEX, INC., a newly created Delaware
corporation which will own the stock of Fruehauf de Mexico and
which will be owned by each Debtor which contributes its stock
in Fruehauf de Mexico.
7. Section 1.34 of the Plan is amended to state:
"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 Frudemex, and all rights to
receive tax refunds, but excluding the Distribution Fund, the
stock of Fruehauf de Mexico and the Wabash Securities.
8. A new Section 6.4a is added to the Plan to state:
On or prior to the Effective Date, each Debtor which owns stock
in Fruehauf de Mexico shall receive a pro rata share of the
stock in FrudeMex in exchange for consideration of each Debtors'
stock in Fruehauf de Mexico.
9. Section 6.10 of the Plan is amended to state:
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
FrudeMex, 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.
10. Paragraph 34 of the Confirmation Order is amended to state:
The transfer of the stock of Pension Corp., JSI Property Corp.
and FrudeMex 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.
11. Section 6.15 of the Plan is amended to state:
The issuance and transfer of the Wabash Securities, the issuance
and distribution of the Pension Corp., FrudeMex 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. SS 1146(c ).
12. Paragraph 35 of the Confirmation Order is amended to state:
The issuance, 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 FrudeMex 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.
13. Paragraph 47 of the Confirmation Order, Paragraph 10 of the
Plan Modification and Section 9.8 of the Plan are amended to
state:
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 if such actions can otherwise be
maintained under applicable law; provided, however, that any
award or settlement, if any, granted in any such action shall be
recoverable only from the proceeds of any applicable insurance
policy and shall be net of any deductible, self insured
retention or similar contractual undertaking, provided that the
foregoing shall not preclude National Union from paying the full
amount of its obligations. Neither confirmation of the Plan nor
the dissolution of the Debtors pursuant to the Plan shall alter
an allegedly injured parties' right to coverage under any
insurance policy or any rights of any insurer under any
applicable law; not shall confirmation of the Plan or the
dissolution of the Debtors pursuant to the Plan limit or
otherwise prejudice the ability of any Debtor or insurance
company to raise any defense that the Debtor has against any
Claimant or any other insurance company. 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
or any such insurance policy. The Liquidating Trustee shall
further provide cooperation to the extent reasonably practicable
given the Liquidating Trustee's staff , to any insurance company
seeking information with respect to insurance claims. The
Parties and all other parties in interest reserve the right to
seek further or additional commitments from the Liquidating
Trustee on notice and motion to the Parties and to the United
States Trustee within 120 days from the date of docketing of
this Order.
National Union has provided insurance services to the Debtors
and asserts rights to hold and use certain collateral (the
"Collateral"). The Debtors have objected to National Union's
proofs of claim and have commenced an adversary proceeding
against National Union for turnover of the Collateral. National
Union shall not settle any insured claim where such settlement
may adversely affect a substantive interest of the Debtors'
estates, including without limitation, the Collateral, without
the approval of the Liquidating Trustee or authorization of this
Court. Nothing herein shall limit National Union's rights, if
any, against the Debtors or the Collateral.
14. Paragraph 3 of the Eleventh Omnibus Order is amended to
state:
Nothing contained herein shall (a) constitute a finding that any
insurance exists or is applicable to the Claimants' Claims; or
(b) be deemed to expand the coverage provided by the London
Insurers or other insurers. In addition, all the London
Insurers or other insurers' rights and defenses under the
Policies are hereby preserved. The Liquidating Trustee shall
further provide cooperation to the extent reasonably practicable
given the Liquidating Trustee's staff, to London Insurers or any
other applicable insurance company seeking information with
respect to insurance claims. The Parties and all other parties
in interest reserve the right to seek further or additional
commitments from the Liquidating Trustee on notice and motion to
the Parties and to the United States Trustee within 120 days
from the date of docketing of this Order.
15. Section 11.5 of the Plan is amended to state:
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 the court could have decided prior to the
confirmation date under the jurisdiction granted pursuant to 28
U.S.C. SS 157 and 1334.
16. Paragraph 36 of the Confirmation Order is amended to state:
The Effective Date shall occur on October 19, 1998, or three
business days after the Court enters this Order, whichever is
later, 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.
17. This is a final order immediately subject to appeal.
Signed this 20th day of October, 1998.
/s/ Peter J. Walsh
-----------------------
HONORABLE PETER J. WALSH
UNITED STATES BANKRUPTCY JUDGE