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.
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DEBTORS' AMENDED JOINT PLAN OF
REORGANIZATION DATED JULY 28, 1998
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i
TABLE OF CONTENTS Page
ARTICLE 1 DEFINITIONS 2
Rules of Interpretation 2
ARTICLE 2 DESIGNATION OF CLAIMS AND INTERESTS 8
2.1 Summary 8
ARTICLE 3 TREATMENT OF UNCLASSIFIED CLAIMS 9
3.1 Administrative Claims 9
(a) General 9
(b) Payment of Statutory Fees 9
(c) Bar Date for Administrative Claims 9
(i) General Provisions 9
(ii) Professionals 9
(iii)Tax Claims 10
3.2 Treatment of Pre-Petition Tax Claims 10
ARTICLE 4 CLASSIFICATION AND TREATMENT OF CLASSIFIED
CLAIMS AND INTERESTS 11
4.1 Class 1 - Priority Claims 11
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 12
4.5 Class 5 - Old Common Stock 12
4.6 Class 6 - Old Warrants 12
4.7 Class 7 - Securities Claims 12
ARTICLE 5 ACCEPTANCE OR REJECTION OF THE PLAN 13
5.1 Voting Classes 13
5.2 Presumed Acceptance of Plan 13
5.3 Presumed Rejection of Plan 13
ARTICLE 6 MEANS FOR EXECUTION AND IMPLEMENTATIONOF THE PLAN 13
6.1 Funding of the Distribution Fund 13
6.2 Transfer of Wabash Securities to Indenture Trustee 13
6.3 Change of Plan Sponsorship for the Management and Union Plans 13
6.4 Transfer of Hogan's Creek Property and Picketville Property 13
6.5 Foreclosure by Holders of Senior Notes 14
6.6 Transfer by Debtors of Assets to the Liquidating Trust 14
6.7 Ratification of Liquidating Trust Agreement 14
(a) Powers and Duties 14
(b) Compensation of Trustee 14
(c) Limitation of Liability 14
(d) Indemnity 14
(e) Right to Hire Professionals 14
(f) Right to Pursue all Causes of Action of the Debtors 14
(g) Treatment of Distribution Fund Surplus 15
(h) Limitation on the Trustee 15
(i) Distribution of Trust Certificates 15
(j) Tax Treatment of the Liquidating Trust 15
(k) Termination of Liquidating Trust 16
6.8 Dissolution of Corporate Entities 16
6.9 Cancellation of Old Securities 16
6.10 Registration Exemption for Debtors' Wabash Securities and
Beneficial Interests in the Liquidating Trust 16
6.11 Corporate Action 16
6.12 Preservation of Rights of Action 16
6.13 Objections to Claims 16
6.14 Exemption from Stamp and Similar Taxes 17
ARTICLE 7 FUNDING AND METHODS OF DISTRIBUTION AND
PROVISIONS FOR TREATMENT OF DISPUTED CLAIMS 17
7.1 Funding of Distributions Under the Plan 17
7.2 Cash Distributions 17
7.3 Distribution Procedures 17
7.4 Distributions to Holders of Allowed Administrative
Expense Claims, Pre-Petition Tax Claims and Class 1
Priority Claims 18
7.5 (a) Distributions to Holders of Allowed Class 2 Claims 18
(b) Certification of Claims by Indenture Trustee 18
(c) Surrender and Cancellation of Old Securities 18
(d) Ballot Record Date; Distributions to Holders of
Senior Notes 19
7.6 Disputed Claims 19
7.7 Delivery of Distributions and Undeliverable or
Unclaimed Distributions 19
(a) Delivery of Distributions in General 19
(b) Undeliverable Distributions 19
(i) Holding and Investment of Undeliverable Property 19
(ii) Distribution of Undeliverable Property After
it Becomes Deliverable and Failure to Claim
Undeliverable Property 20
7.8 Distributions on Account of Unsecured Class 4 Claims 20
7.9 De Minimis Distributions 20
7.10 Failure to Negotiate Checks 20
7.11 Compliance with Tax Requirements 20
7.12 Setoffs 20
7.13 Fractional Interests 21
ARTICLE 8 TREATMENT OF EXECUTORY CONTRACTSAND UNEXPIRED LEASES 21
8.1 Rejection of All Executory Contracts and Leases Not Assumed 21
8.2 Bar Date for Filing of Rejection Claims 21
ARTICLE 9 EFFECTS OF PLAN CONFIRMATION 21
9.1 Transfers to Liquidating Trust are Free and Clear
of Claims Against Debtors 21
9.2 No Liability for Solicitation or Participation 21
9.3 Limitation of Liability 21
9.4 Other Documents and Actions 22
9.5 Post-Consummation Effect of Evidences of Claims or Interests 22
9.6 Term of Injunctions or Stays 22
ARTICLE 10 CONFIRMABILITY OF PLAN AND CRAMDOWN 23
ARTICLE 11 RETENTION OF JURISDICTION 23
ARTICLE 12 MISCELLANEOUS PROVISIONS 24
12.1 Fractional Dollars 24
12.2 Modification of Plan 24
12.3 Withdrawal of Plan 24
12.4 Governing Law 25
12.5 Time 25
12.6 Payment Dates 25
12.7 Headings 25
12.8 Successors and Assigns 25
12.9 Severability of Plan Provisions 25
12.10 No Admissions 25
12.11 Dissolution of Unsecured Creditors' Committee 25
12.12 Notices 26
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' AMENDED JOINT PLAN OF
REORGANIZATION DATED JULY 28, 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 Amended Joint Plan of
Reorganization dated July 28 , 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.
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 August 7, 1998.
1.6 "Ballot Return Date" means 4:00 p.m. Eastern Daylight Time
on September 9, 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.
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.
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.
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. S 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
an 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.
1.50 "Pension Corp." means a newly-created Delaware corporation
which will be owned by Fruehauf Trailer Corporation, will become
the 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. SS 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.
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.
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.
(b) Payment of Statutory Fees. All fees payable pursuant to 28
U.S.C. S 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
forty-five (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.
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. S 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.
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.
(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.
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 Liquidating Trustee. The Liquidating
Trustee shall be entitled to receive from the Trust Estate
compensation for his services as Liquidating 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
Liquidating 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.
(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 Liquidating 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 Liquidating Trustee is required before the
Liquidating 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. However, after
consultation with the Official Committee for Unsecured Creditors
and the Securities and Exchange Commission, the Debtors may seek
to have the Trust Certificates issued in two classes to Class A
Beneficial Interestholders, Class A(1) for Class 2 Creditors and
Class A(2) for Class 4 Creditors, if it is possible to avoid the
requirement to register the Liquidating Trust under Section
12(g) of the Exchange Act.
(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.
(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.
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 Treatment of Identical Claims Asserted by Single Creditor
Against Multiple Debtors. Because all of the Debtors' assets
are fully encumbered by liens securing the Senior Notes, absent
the agreement of the Senior Noteholders, holders of Allowed
Administrative, Priority, Pre-Petition Tax and Unsecured Claims
would receive no distribution under the Plan. The Senior
Noteholders have agreed to the distribution of the Distribution
Fund to holders of Allowed Administrative and Priority Claims
and the distribution of 5.5% of the Class A Beneficial Interests
in the Liquidating Trust to holders of Allowed Unsecured Claims
if Class 4 accepts the Plan. That agreement is conditioned upon
the Claims against the Debtors being consolidated so that a
single creditor who has a 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. Attached as
Exhibit "B" to the Plan is a schedule of creditors that filed
multiple claims for the same liability. The maximum amount of
the Allowed Claim of any of these creditors shall be the amount
indicated as the "Surviving Claim." The Liquidating Trust
reserves the right to object to the Surviving Claim.
6.15 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. S 1146(c).
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.
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 Liquidating 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.
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 and, in the case of a Class 2
creditor, the Indenture Trustee 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 or the Indenture Trustee, as the case may
be, 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 or the
Indenture Trustee, as the case may be, 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.
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 an 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 or Trust Certificates 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 or Trust
Certificate. The number of shares of Wabash Securities or Trust
Certificates 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 or Trust
Certificates 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 of stock 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.
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 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.
9.4 Other Documents and Actions. The Debtors, the
Debtors-In-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.
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.
9.7 Reorganization Incentive Payments to Officers. The officers
will receive the following bonuses on the Effective Date of the
Plan:
Chriss W. Street $350,000
Worth W. Frederick $100,000
James Wong $50,000
Courtney Watson $50,000
These bonuses reward the officers for the significant results
they achieved in liquidating the Debtors' assets and the
substantial work performed before becoming employees of the
Debtors as well as after assuming these positions. The Debtors
do not intend to seek Court approval of these bonuses by
separate motion. These bonuses will be paid pursuant to this
Section 9.7 of the Plan, and the Debtors will request that
approval of the bonuses be included in the order approving the
Plan.
ARTICLE 10
CONFIRM ABILITY 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;
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.
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.
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
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
United States Trustee
Attn: Daniel K. Astin, Esq.
The Curtis Center
601 Walnut Street, Suite 950W
Philadelphia, PA 19106
Dated: July 28, 1998
MORRIS, NICHOLS, ARSHT & TUNNELL
/s/ William H. Sudell, Jr.
-----------------------------
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
EXHIBIT "A" TO THE PLAN
EXHIBIT "B" TO THE PLAN
LIQUIDATING TRUST AGREEMENT DATED JULY 28, 1998