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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported)
JANUARY 8, 1996
FREYMILLER TRUCKING, INC.
(Exact name of registrant as specified in its charter)
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(State or other jurisdiction (Commission File Number) (IRS Employer
of incorporation) Identification No.)
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OKLAHOMA 0-15503 73-1016728
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8621 NORTH ROCKWELL, OKLAHOMA CITY, OKLAHOMA 73132
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (405) 720-6555
Not Applicable
(Former name or former address, if changed since last report.)
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ITEM 3. BANKRUPTCY OR RECEIVERSHIP
On January 8, 1996, the United States Bankruptcy Court for the Western
District of Oklahoma ("Bankruptcy Court"), confirmed the First Amended Plan
of Reorganization of Freymiller Trucking, Inc., as Amended ("Plan of
Reorganization").
The Plan of Reorganization will be consummated on the Effective Date.
The Effective Date is a business day to be determined by Freymiller Trucking,
Inc. ("Registrant"), in its sole discretion, after January 8, 1996, on which (a)
no stay of the order confirming the Plan of Reorganization is in effect and (b)
all of the conditions to the Plan of Reorganization have been satisfied or
waived.
On the Effective Date, the name of the Registrant will be changed from
"Freymiller Trucking, Inc." to "Freymiller Liquidating Corp."
The Plan of Reorganization provides for the sale, on the Effective
Date, by the Registrant of certain assets of the Registrant to AmeriTruck
Distributing Corp. ("AmeriTruck") or its designee in exchange for a purchase
price of $2,475,989, subject to certain limited adjustments. The assets to be
sold to AmeriTruck include substantially all of the operating assets of the
Registrant, other than its accounts receivable and certain property, including
tractors and trailers, which are being abandoned to secured creditors. The Plan
of Reorganization also provides for the liquidation by the Registrant of its
then remaining assets. The proceeds of those sales are required, under the Plan
of Reorganization, to be used to fund distributions to the creditors of the
Registrant.
The Plan of Reorganization provides for the cancellation, on the
Effective Date, of all of the issued and outstanding shares of Common Stock, par
$0.01 per share ("Common Stock"). Following such cancellation, the Registrant
will have 10,000,000 authorized shares of Common Stock, none of which will be
issued and outstanding.
No distribution will be made under the Plan of Reorganization to
holders of Common Stock. The Plan of Reorganization further requires the
Registrant, as soon as practicable after the Effective Date, to make the
appropriate filing to deregister the shares of Common Stock under the Securities
Exchange Act of 1934, as amended.
After the liquidation and the distributions required by the Plan of
Reorganization have been completed, the Registrant will be dissolved.
Information with respect to the assets and liabilities of the
Registrant, presented in the form in which presented to the Bankruptcy Court, is
contained in the Estimated Results of Implementation of the Plan, which is
attached as Exhibit 99.1, and the Liquidation Analysis, which is attached as
Exhibit 99.2. These documents are based on assumptions with respect to the
market value of the assets of the Registrant and the liabilities of the
Registrant
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which management believes to be reasonable. However, there is no assurance
that those assumptions will prove to be accurate. If any assumption does not
prove to be accurate, the information presented in those documents may prove
to be inaccurate.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
The following exhibits are filed with this Current Report on Form 8-K:
2.1 First Amended Plan of Reorganization of Freymiller Trucking,
Inc., as Amended
4.1 Form of First Amendment to Amended and Restated Articles of
of Incorporation of Freymiller Liquidating Corp. (formerly
Freymiller Trucking, Inc.)
99.1 Estimated Results of Implementation of Plan
99.2 Liquidation Analysis
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
as amended, the Registrant has duly caused this report to be signed on its
behalf by the undersigned hereunto duly authorized.
Date: January 26, 1996 Freymiller Trucking, Inc.
/s/ Richard E. Kuehn
-----------------------------------
Richard E. Kuehn
Executive Vice President and Chief
Operating Officer
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EXHIBIT 1
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UNITED STATES BANKRUPTCY COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
IN RE: )
)
FREYMILLER TRUCKING, INC., ) Case No. 95-12095-BH
) Chapter 11
Debtor. )
FIRST AMENDED PLAN OF REORGANIZATION OF FREYMILLER
TRUCKING, INC. INCORPORATING ALL TECHNICAL AMENDMENTS
Freymiller Trucking, Inc., an Indiana corporation ("Debtor"), hereby
proposes this First Amended Plan of Reorganization of Freymiller Trucking, Inc.
("Plan") to resolve claims against, and interests in, the Debtor. The Debtor is
the proponent of the Plan within the meaning of Section 1129 of the Bankruptcy
Reform Act of 1978, as amended ("Bankruptcy Code").
The Disclosure Statement for the First Amended Plan of Reorganization
of Freymiller Trucking, Inc. ("Disclosure Statement") provides certain
information with respect to the Debtor and the Plan.
Nothing in the Plan should be construed as constituting a solicitation
of acceptances of the Plan unless and until the Disclosure Statement has been
approved and distributed to all holders of claims and interests to the extent
required by Section 1125 of the Bankruptcy Act.
All holders are encouraged to read the Disclosure Statement and the
Plan in their entirety before voting to accept or to reject the Plan.
ARTICLE I
DEFINED TERMS AND RULES OF INTERPRETATION
A. DEFINED TERMS. A capitalized term used in the Plan and not otherwise
defined shall have the meaning, if any, assigned to the capitalized term in this
Article I and, if no meaning is assigned to the capitalized term in this Article
I, shall have any meaning assigned to the capitalized term in the Bankruptcy
Code or the Bankruptcy Rules (as defined herein).
1. ADMINISTRATIVE CLAIM. The term "Administrative Claim" means a
Claim for administrative expenses allowed under Section 503(b), Section 507(b)
or Section 1114(e)(2) of the Bankruptcy Code.
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2. ALLOWED CLAIM. The term "Allowed Claim" means (a) a Claim that
has been reflected by the Debtor in the schedule of liabilities filed by the
Debtor pursuant to Section 521 of the Bankruptcy Code as other than disputed,
contingent or unliquidated and to which neither the Debtor nor any other
interested person has not objected by any applicable date set by the Bankruptcy
Court or established by the Plan or (b), if a proof of claim with respect to a
Claim has been timely filed or is deemed to have been timely filed, the Claim
either is not a Disputed Claim or has been allowed by a Final Order.
3. ALLOWED . . . CLAIM. The term "Allowed . . . Claim" means an
Allowed Claim of the type described or in the Class described, as the case may
be.
4. ALLOWED INTEREST. The term "Allowed Interest" means an Interest
that is registered on the Effective Date in the stock register that either is
maintained by, or on behalf of, the Debtor and that is not a Disputed Interest
or has been allowed by a Final Order.
5. ALLOWED . . . INTEREST. The term "Allowed . . . Interest" means
an Allowed Interest of the type described or in the Class described, as the case
may be.
6. ARTICLES OF INCORPORATION. The term "Articles of Incorporation"
means the Amended and Restated Articles of Incorporation of Freymiller Trucking,
Inc. as in effect on the Petition Date.
7. BANK IV. The term "Bank IV" means Bank IV Oklahoma, N.A.
8. BANKRUPTCY CODE. The term "Bankruptcy Code" means the Bankruptcy
Reform Act of 1978, as amended.
9. BANKRUPTCY COURT. The term "Bankruptcy Court" means the United
States Bankruptcy Court for the Western District of Oklahoma or, if the United
States Bankruptcy Court for the Western District of Oklahoma ceases to exercise
jurisdiction over the Case, the court that exercises jurisdiction over the Case
in lieu of the United States Bankruptcy Court for the Western District of
Oklahoma.
10. BANKRUPTCY RULES. The term "Bankruptcy Rules" means,
collectively, the Federal Rules of Bankruptcy Procedure, as amended, and the
Local Bankruptcy Rules for the United States District Court for the Western
District of Oklahoma, as amended.
11. BUSINESS DAY. The term "Business Day" means any day, other than
a Saturday, a Sunday or a "legal holiday" (as defined in Rule 9006(a) of the
Bankruptcy Rules).
12. BYLAWS. The term "Bylaws" means the Restated Bylaws of
Freymiller Trucking, Inc. as in effect on the Petition Date.
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13. CAPTIVE RESOURCES. The term "Captive Resources" means Captive
Resources Company.
14. CASE. The term "Case" means the case styled IN RE FREYMILLER
TRUCKING, INC., Case No. 95-12095-BH, pending before the Bankruptcy Court with
respect to the Debtor.
15. CLAIM. The term "Claim" means a claim (as defined in Section
101(5) of the Bankruptcy Code).
16. CLARENDON. The term "Clarendon" means Clarendon National
Insurance Company.
17. CLASS. The term "Class" means a class of Claims against, or
Interests in, the Debtor.
18. COMMITTEE. The term "Committee" means the Official Creditors'
Committee.
19. CONFIRMATION DATE. The term "Confirmation Date" means the date
on which the Bankruptcy Court enters the Confirmation Order on its docket.
20. CONFIRMATION HEARING. The term "Confirmation Hearing" means the
hearing before the Bankruptcy Court on the confirmation of the Plan pursuant to
Section 1129 of the Bankruptcy Code.
21. CONFIRMATION ORDER. The term "Confirmation Order" means the
order of the Bankruptcy Court confirming the Plan pursuant to Section 1129 of
the Bankruptcy Code.
22. COTTINGHAM. The term "Cottingham" means Cottingham & Butler,
Inc.
23. DEBTOR. The term "Debtor" means Freymiller Trucking, Inc., an
Indiana corporation.
24. DISCLOSURE STATEMENT. The term "Disclosure Statement" means the
Disclosure Statement for the First Amended Plan of Reorganization of Freymiller
Trucking, Inc. that relates to the Plan and that is approved by the Bankruptcy
Court pursuant to Section 1125 of the Bankruptcy Code.
25. DISPUTED CLAIM. The term "Disputed Claim" means (a), if no proof
of claim with respect to a Claim has been timely filed but a proof of claim has
been deemed timely filed because the Claim has been scheduled by the Debtor in
the schedule of liabilities filed by the Debtor pursuant to Section 521 of the
Bankruptcy Code as other than disputed, contingent or unliquidated, and the
Debtor or any other party in interest has objected to the Claim and such
objection has not been withdrawn or resolved by a Final Order or (b), if a proof
of claim with respect to a Claim has
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been timely filed or has been deemed timely filed, an objection has been
filed by the Debtor or any other party in interest and such objection has not
been withdrawn or resolved by a Final Order.
Prior to the time that an objection has been or may be timely filed,
for the purposes of the Plan, a Claim asserted in a proof of claim is deemed a
Disputed Claim in its entirety if (a) the amount reflected in the proof of claim
exceeds the amount of any corresponding Claim reflected by the Debtor in the
schedule of liabilities, (b) any corresponding Claim in the schedule of
liabilities has been scheduled as disputed, contingent or unliquidated,
irrespective of the amount scheduled, or (c) no corresponding Claim has been
scheduled by the Debtor in the schedule of liabilities.
26. DISPUTED INTEREST. The term "Disputed Interest" means any
Interest to which an objection has been filed by the Debtor or any other party
in interest and which objection, if timely filed, has not been withdrawn or
resolved by a Final Order.
27. DISTRICT COURT. The term "District Court" means the United
States District Court for the Western District of Oklahoma.
28. EFFECTIVE DATE. The term "Effective Date" means a Business Day
determined by the Debtor, in its sole discretion, after the Confirmation Date
and on which date (a) no stay of the Confirmation Order is in effect and (b) all
conditions to the Effective Date set forth in Section IX(A) have been satisfied
or waived as provided in Article IX(B).
29. ESTATE. The term "Estate" means the estate created for the
Debtor in the Case pursuant to Section 541 of the Bankruptcy Code.
30. EXISTING FREYMILLER COMMON STOCK. The term "Existing Freymiller
Common Stock" means the shares of common stock, par value $0.01 per share, of
the Debtor issued and outstanding on the Petition Date.
31. FINAL ORDER. The term "Final Order" means an order issued by the
Bankruptcy Court or another court of competent jurisdiction (a) which has not
been reversed, vacated or stayed and (b) as to which the time to appeal or to
seek certiorari has expired and no appeal or petition for certiorari has been
timely taken or as to which any appeal that has been or may be taken or any
petition for certiorari that has been or may be filed has been resolved by the
highest court to which the order was appealed or from which certiorari was
sought.
32. FIREMEN'S FUND. The term "Firemen's Fund" means Firemen's Fund
Insurance Company.
33. FIRST ENTERPRISE BANK. The term "First Enterprise" means First
Enterprise Bank.
34. GECC. The term "GECC" means General Electric Capital
Corporation.
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35. IBM CREDIT. The term "IBM Credit" means IBM Credit Corporation.
36. INSURED CLAIM. The term "Insured Claim" means any Claim arising
from an incident or an occurrence that is covered under a contract of insurance
covering the Debtor.
37. INSURER. The term "Insurer" means any person or any entity that
provides insurance to the Debtor pursuant to a contract of insurance.
38. INTEREST. The term "Interest" means the right of a holder of
Existing Freymiller Common Stock, including any right or claim against Debtor
arising out of the purchase or ownership of said stock, including any claim
arising out of any right to rescind the purchase of said stock or to compel the
repurchase of said stock or for damages based upon any misrepresentation or
failure to disclose any material fact in connection with the purchase or
ownership of said stock.
39. LIQUIDATION COMMITTEE. The term "Liquidation Committee" means
the members of the Committee who shall serve in the capacity described in
Article IV(M) of the Plan.
40. LOAN STIPULATION. The term "Loan Stipulation" means the
Stipulation for Secured Borrowing and Use of Cash Collateral executed by the
Debtor and Norwest and filed with the Bankruptcy Court on May 23, 1995, as
approved and modified by the Order Authorizing Debtor to Enter Into and to
Perform Financing Agreement entered by the Bankruptcy Court on June 2, 1995, as
subsequently amended.
41. LUMBERMENS. The term "Lumbermens" means Lumbermens Mutual
Casualty Company.
42. MERCEDES. The term "Mercedes" means Mercedes-Benz Credit Corp.
43. MIDWEST. The term "Midwest" means Midwest Employers Casualty
Company.
44. NORWEST. The term "Norwest" means Norwest Business Credit, Inc.
45. ORDINARY COURSE ADMINISTRATIVE CLAIMS. The term "Ordinary Course
Administrative Claims" means all post-petition employee payroll, payroll taxes,
health and workers' compensation insurance, owner/operator settlements, road
service costs including fuel, over the road costs, building rent, communications
and utilities, and computer leases incurred by the Debtor in the ordinary course
of its business during the period immediately preceding the Effective Date which
are required by the Purchaser to be paid from the Sale Proceeds under ordinary
business terms.
46. ORIX. The term "Orix" means Orix Credit Alliance, Inc.
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47. PETITION DATE. The term "Petition Date" means April 20, 1995.
48. PLAN. The term "Plan" means the First Amended Plan of
Reorganization of Freymiller Trucking, Inc.
49. PRIORITY TAX CLAIM. The term "Priority Tax Claim" means a Claim
entitled to priority pursuant to Section 507(a)(8) of the Bankruptcy Code.
50. PROFESSIONAL. The term "Professional" means a professional
employed in the Case pursuant to Section 327 or Section 1103 of the Bankruptcy
Code or a professional seeking compensation or reimbursement of expenses
pursuant to Section 503(b)(4) of the Bankruptcy Code.
51. PURCHASER. The term "Purchaser" means AmeriTruck Distribution
Corp. or another person or entity designated by AmeriTruck Distribution Corp.
pursuant to the Purchase and Sale Agreement.
52. QUALCOMM. The term "Qualcomm" means the Allowed Secured Claim of
Qualcomm Incorporated.
53. PURCHASE AND SALE AGREEMENT. The term "Purchase and Sale
Agreement" means that certain agreement between AmeriTruck Distribution Corp.
and the Debtor.
54. SALE PROCEEDS. The term "Sale Proceeds" means (a) the sum of (i)
the purchase price of $2,475,989 paid by the Purchaser to the Debtor pursuant to
Section IV(C) plus (ii) the aggregate amount, if any, received by the Debtor
from persons and entities to which the Debtor has prepaid costs and expenses for
the period after the Effective Date less (b), to the extent that the Effective
Date occurs after December 31, 1995, the additional amount which the Purchaser
must pay to GECC, such additional amount to be equal to the product of (A) the
number of days elapsed after December 31, 1995, multiplied by (b) $814.49.
55. SECURED CLAIM. The term "Secured Claim" means a Claim that is
secured by a lien on, or a security interest in, property in which the Estate
has an interest or that is subject to setoff under Section 553 of the Bankruptcy
Code to the extent of the value of the holder's interest in the interest of the
Estate in such property or to the extent of the amount subject to setoff, as the
case may be, as determined pursuant to Section 506(a) of the Bankruptcy Code.
56. STATUTORY FEES. The term "Statutory Fees" means all of the fees
payable to the United States Trustee pursuant to 28 U.S.C. Section 1930.
57. TIP. The term "TIP" means Transport International Pool, Inc.
58. TRAFFIC INSURANCE. The term "Traffic Insurance" means Traffic
Insurance Ltd.
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59. UNSECURED CLAIM. The term "Unsecured Claim" means any Claim that
is not an Administrative Claim, a Priority Tax Claim or a Secured Claim.
60. WELLS FARGO. The term "Wells Fargo" means Wells Fargo Bank,
National Association.
B. RULES OF INTERPRETATION. The following rules shall be used in
construing and interpreting the Plan:
1. APPLICATION OF SECTION 102 OF THE BANKRUPTCY CODE. The rules of
construction contained in Section 102 of the Bankruptcy Code apply to the
construction and interpretation of the Plan.
2. ARTICLE AND SECTION REFERENCES. Unless otherwise expressly
stated in the Plan, all references to Articles and Sections shall refer to the
Articles and the Sections of the Plan.
3. CALCULATION OF TIME. Any period of time under the Plan shall be
computed in accordance with Rule 9006(a) of the Bankruptcy Rules.
4. SINGULAR AND PLURAL TERMS. Whenever the context is appropriate,
each term, whether stated in the singular or the plural, shall include both the
singular and the plural.
5. USE OF ARTICLE AND SECTION HEADINGS. Headings for Articles and
Sections have been inserted in the Plan solely for convenience of reference and
are not intended to be a part of, or to affect the construction or the
interpretation of, the Plan.
ARTICLE II
CLASSES OF CLAIMS AND INTERESTS
A. CLASSIFICATION OF CLAIMS AND INTERESTS. All Claims and Interests
(other than Administrative Claims, Priority Tax Claims and Statutory Fees) are
classified in the following Classes:
1. CLASS 1. Class 1 consists of Allowed Unsecured Claims which are
entitled to priority under Section 507(a)(3), Section 507(a)(4) or Section
507(a)(6) of the Bankruptcy Code.
2. CLASS 2. Class 2 consists of the Allowed Secured Claim of
Norwest.
3. CLASS 3. Class 3 consists of the Allowed Secured Claim of Bank
IV and/or Don H. Freymiller.
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4. CLASS 4. Class 4 consists of the Allowed Secured Claim of
Clarendon and/or Cottingham in connection with the insurance policy issued by
Clarendon.
5. CLASS 5. Class 5 consists of the Allowed Secured Claim of First
Enterprise.
6. CLASS 6. Class 6 consists of the Allowed Secured Claim of GECC.
7. CLASS 7. Class 7 consists of the Allowed Secured Claim of IBM
Credit.
8. CLASS 8. Class 8 consists of the Allowed Secured Claim of
Lumbermens and/or Cottingham in connection with the insurance policy issued by
Lumbermens.
9. CLASS 9. Class 9 consists of the Allowed Secured Claim of
Mercedes.
10. CLASS 10. Class 10 consists of the Allowed Secured Claim of
Orix.
11. CLASS 11. Class 11 consists of the Allowed Claims of Qualcomm.
12. CLASS 12. Class 12 consists of the Allowed Claims of TIP.
13. CLASS 13. Class 13 consists of the Allowed Secured Claim of
Captive Resources, Firemen's Fund, Traffic Insurance and/or Cottingham in
connection with the insurance policy issued by Firemen's Fund.
14. CLASS 14. Class 14 consists of the Allowed Secured Claim of
Wells Fargo.
15. CLASS 15. Class 15 consists of all other Allowed Secured Claims.
16. CLASS 16. Class 16 consists of the Allowed Unsecured Claims
which are covered by an insurance policy issued by Clarendon.
17. CLASS 17. Class 17 consists of the Allowed Unsecured Claims
which are Indiana and North Carolina workers' compensation claims and which are
covered by a bond issued by Midwest.
18. CLASS 18. Class 18 consists of the Allowed Unsecured Claims
which are Oklahoma workers' compensation claims under the self-insurance program
maintained by Freymiller.
19. CLASS 19. Class 19 consists of the Allowed Unsecured Claims
(other than Allowed Unsecured Claims in Class 16, Class 17 or Class 18).
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20. CLASS 20. Class 20 consists of the Allowed Claims, if any, for
exemplary or punitive damages, for fines, for forfeitures or for penalties to
the extent such Allowed Claims are not compensation for actual pecuniary injury
sustained by the holders.
21. CLASS 21. Class 21 consists of the Allowed Claims which have
been subordinated to the other Allowed Claims pursuant to Section 510 of the
Bankruptcy Code.
22. CLASS 22. Class 22 consists of the Allowed Interests.
A Claim or an Interest is classified in a Class only to the extent
that Claim or that Interest falls within the description of that Class and is
classified in another Class to the extent that Claim or that Interest falls
within the description of the other Class. For purposes of receiving a
distribution under the Plan, a Claim or an Interest is classified in a Class
only to the extent that the Claim or the Interest is an Allowed Claim or an
Allowed Interest in that Class and only to the extent the Claim or the Interest
has not been otherwise satisfied prior to the date on which any distribution is
to be made under the Plan.
B. UNCLASSIFIED CLAIMS. Administrative Claims, Priority Tax Claims and
Statutory Fees are not classified under the Plan.
C. OBJECTION TO CLASSIFICATION. The Debtor or the Liquidation Committee
may object to any classification made by a holder of a Claim or an Interest on a
ballot and may seek a determination by the Bankruptcy Court of the proper
classification of the Claim or the Interest.
ARTICLE III
TREATMENT OF CLAIMS AND INTERESTS
A. PAYMENT OF ADMINISTRATIVE CLAIMS IN GENERAL. To the extent that
sufficient unencumbered funds are available, the Debtor shall pay to each holder
of an Allowed Administrative Claim cash in an amount equal to the amount of the
Administrative Claim (unless the holder agrees to other treatment or unless
otherwise provided herein) on the later of (1) the Effective Date and (2) 30
days after the date on which the order allowing the Allowed Administrative Claim
becomes a Final Order.
B. PAYMENT OF STATUTORY FEES. The Debtor shall pay to the United States
Trustee in cash all of the Statutory Fees to the extent that the Debtor has not
previously paid the Statutory Fees, such payment to be made on the Effective
Date.
C. PRIORITY TAX CLAIMS. To the extent that sufficient unencumbered funds
are available, the Debtor shall pay the holder of each Allowed Priority Tax
Claim cash in an amount equal to the amount of the Allowed Priority Tax Claim
(unless the holder agrees to other treatment).
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To the extent that sufficient unencumbered funds are available, the
Debtor shall pay each Allowed Priority Tax Claim on the later of (1) the
Effective Date and (2) 30 days after the date on which the order allowing the
Allowed Priority Tax Claim becomes a Final Order.
D. TREATMENT OF UNIMPAIRED CLASSES. Claims in Class 1, Class 3, Class 4,
Class 5, Class 8 and Class 13 are not impaired. The unimpaired Claims will be
treated in the following manner under the Plan:
1. CLASS 1. The Debtor shall pay each holder of a Class 1 Claim
cash equal to the amount of the Class 1 Claim on the later of (a) the Effective
Date; (b) 30 days after the date on which the order allowing the Class 1 Claim
becomes a Final Order; and (c) the date when Debtor has unencumbered funds
available for such payment.
2. CLASS 3 CLAIM. The Debtor shall be deemed to reject the Lease
dated September 1, 1994, with respect to its corporate headquarters and to
reject the Lease dated March 16, 1995, with respect to the raw land intended for
a new maintenance terminal. The Purchaser shall purchase the collateral of the
holders of the Class 3 Claim in full satisfaction of the claim and shall make
arrangements satisfactory to the holders of the Class 3 Claims which result in
the release to the Debtor of the collateral which secures the Class 3 Claim.
3. CLASS 4 CLAIM. The Debtor shall satisfy the Class 4 Claim by
permitting the holders of the Class 4 Claim to apply the security deposit held
to secure the Class 4 Claim against the Class 4 Claim on the later of (a) the
Effective Date and (b) 30 days after the order allowing the Class 4 Claim
becomes a Final Order. The holders shall immediately pay to the Debtor the
amount, if any, by which such security deposit exceeds the Class 4 Claim.
4. CLASS 5 CLAIM. The Debtor shall satisfy the Class 5 Claim, at
the option of the Debtor, by (a) paying to the holder of the Class 5 Claim the
proceeds from the consummation of the sale of the collateral securing the Class
5 Claim to Swift Transportation, Inc. pursuant to the Order Authorizing
Freymiller Trucking, Inc. to Assume Contracts on Sale of Maintenance Terminal
entered by the Bankruptcy Court on May 5, 1995, or to any other purchaser
approved by the Bankruptcy Court or (b) surrendering to the holder of the Class
5 Claim the collateral securing the Class 5 Claim. Such payment or such
surrender shall be made on the later of (a) the Effective Date and (b) 30 days
after the order allowing the Class 5 Claim becomes a Final Order.
5. CLASS 8 CLAIM. The Debtor shall satisfy the Class 8 Claim by
permitting the holders of the Class 8 Claim to apply the security deposit held
to secure the Class 8 Claim against the Class 8 Claim on the later of (a) the
Effective Date and (b) 30 days after the order allowing the Class 8 Claim
becomes a Final Order. The holders shall immediately pay to the Debtor the
amount, if any, by which such security deposit exceeds the Class 8 Claim.
6. CLASS 13 CLAIM. The Debtor shall satisfy the Class 13 Claim by
permitting the holders of the Class 13 Claim to apply the security deposit held
to secure the Class 13 Claim
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against the Class 13 Claim on the later of (a) the Effective Date and (b) 30
days after the order allowing the Class 13 Claim becomes a Final Order. The
holders shall immediately pay to the Debtor the amount, if any, by which such
security deposit exceeds the Class 13 Claim.
E. TREATMENT OF IMPAIRED CLASSES. Claims and Interests in Class 2, Class
6, Class 7, Class 9, Class 10, Class 11, Class 12, Class 14, Class 15, Class 16,
Class 17, Class 18, Class 19, Class 20, Class 21 and Class 22 are impaired. The
impaired Classes of Claims and Interests will be treated in the following manner
under the Plan:
1. CLASS 2. Pursuant to express terms of the Loan Stipulation, as
amended, Norwest shall continue to provide a working capital and letter of
credit facility to the Debtor through the Effective Date.
On the Effective Date, the Debtor shall no longer request advances or
letters of credit under the working capital and letter of credit facility
provided by Norwest to the Debtor; provided, however, payees under letters of
credit issued thereunder shall be permitted to make the draws on such letters of
credit in accordance with the Plan. The Loan Stipulation, including all of
Norwest's rights and remedies thereunder and all of the Debtor's obligations
thereunder (to include, without limitation, the Debtor's obligations to provide
cash to collateralize such letters of credit and to pay Norwest in full,
including interest, fees, costs and charges as set forth in the Loan
Stipulation), shall continue in full force and effect.
On the Effective Date, upon receipt of the Sale Proceeds, the liens
and the security interests of Norwest on all collateral to be sold to
Purchaser pursuant to the Plan shall be deemed released. Norwest shall
execute and deliver such documentation and take such other actions as may be
reasonably requested by Purchaser in connection with such release of liens.
In exchange for such release, Norwest shall receive duly perfected first
priority liens and security interests in the Sale Proceeds received by the
Debtor from the Purchaser; provided, however, that Debtor shall be authorized
to pay the Ordinary Course Administrative Claims in a total amount not to
exceed $1,500,000 in the ordinary course of business from the Sale Proceeds
received from the Purchaser. Norwest shall also continue to hold its
existing liens on all assets of the Estate including, without limitation,
accounts receivable. The Debtor shall execute and deliver such documentation
and take such other actions as may be reasonably requested by Norwest in
connection with the perfection of such liens and such security interests.
The Purchaser shall collect the accounts receivable which secure the
Class 2 Claim in accordance with Article IV(E) and Norwest shall apply the
proceeds of such collection, as well as the proceeds of any of Norwest's other
collateral, against the Class 2 Claim until the Class 2 Claim is satisfied.
Upon the satisfaction of the Class 2 Claim, the liens and the security interests
of Norwest in the assets of the Debtor shall be deemed released and Norwest
shall execute such documentation and take such actions as may be reasonably
requested by the Debtor in connection with such release. Norwest shall promptly
pay to the Debtor all proceeds of such accounts receivable received after
satisfaction of the Class 2 Claim and adequate cash is deposited with
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Norwest to fully collateralize any unfunded letters of credit. If Norwest is
not fully paid on the 60th day following the Effective Date, Norwest shall be
entitled to direct Bank IV or such other depository bank where the Sale
Proceeds from the Purchaser are deposited pursuant to the Plan, to pay
Norwest the lesser of (a) the account balance or (b) such amount as is
necessary to pay Norwest in full from the cash collateral in such account.
To the extent the balance of such account is insufficient to pay Norwest in
full, Norwest shall continue to have all liens, rights and remedies under the
Loan Stipulation and Plan until such time as Norwest is paid in full.
2. CLASS 6. The Debtor shall satisfy the Class 6 Claim by
abandoning to the holder of the Class 6 Claim the collateral securing the Class
6 Claim and shall execute such documents as are necessary to convey title to the
collateral to the holder of the Class 6 Claim. The Purchaser shall acquire such
collateral from the holder of the Class 6 Claim for an amount equal to
$2,801,804.81 plus $814.49 per day for each day from and after December 31,
1995, until the Effective Date.
3. CLASS 7. The holder of the Class 7 Claim shall retain the
liens on the collateral securing the Class 7 Claim to the extent of the Class
7 Claim. The Purchaser shall purchase the collateral securing the Class 7
Claim subject to such liens and the Purchaser shall satisfy the Class 7 Claim
by making deferred cash payments (based on the present terms) to the holder
of the Class 7 Claim.
4. CLASS 9. The Debtor shall satisfy the Class 9 Claim by
abandoning to the holder of the Class 9 Claim the collateral securing the Class
9 Claim and shall execute such documents as are necessary to convey title to the
collateral to the holder of the Class 9 Claim. On the Effective Date (a) the
Purchaser shall lease a minimum of three and a maximum of five of the 1992
tractors which are not owner-operator units, (b) the Purchaser shall lease a
minimum of nine and a maximum of thirteen of the 1993 tractors which are not
owner-operator units,(c) the Purchaser shall either purchase from the holder of
the Class 9 Claim the eighty-seven 1994 tractors at a unit cash price of $47,000
or lease from the holder of the Class 9 Claim the eighty-seven 1994 tractors
and (d) the Purchaser shall purchase the 1991 tractors, the 1992 tractors, the
1993 tractors and the 1994 tractors which are owner-operator units by assuming
the obligations of the Debtor to the holder of the Class 9 on such tractors.
The 1992 tractors and the 1993 tractors to be leased by the Purchaser
as specified above shall be leased on a month-to-month basis for $850 per
tractor per month, with a maximum term of six months. If the Purchaser leases
more than three 1992 tractors and/or more than nine 1993 tractors, the holder of
the Class 9 Claim shall be entitled to an administrative claim of $1,900 per
additional 1992 tractor or 1993 tractor leased by the Purchaser; provided
however, the Administrative Claim shall not exceed $11,400.00.
The 1994 tractors shall either be purchased or leased on the Effective
Date. Any lease shall be for a unit rental of $1,000.00 per month, with the
rental payments due monthly in advance. The first payment shall be due on the
earlier of the Effective Date or January 31, 1996. Payments shall be due monthly
on the same day of each month thereafter. The lease shall be documented on the
standard form of TRAC Lease used by the holder of the Class 9 Claim.
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The holder of the Class 9 Claim shall not be entitled to any payment
with respect to rental payments which the Debtor was required, but failed, to
make for the months of November, 1995, and thereafter (except as specifically
provided herein with respect to the lease of more than three 1992 tractors and
the lease of more than nine 1993 tractors).
5. CLASS 10. The Debtor shall satisfy the Class 10 Claim by
abandoning to the holder of the Class 10 Claim the collateral securing the Class
10 Claim and shall execute such documents as are necessary to convey title to
the collateral to the holder of the Class 10 Claim. The Purchaser shall acquire
such collateral from the holder of the Class 10 Claim for an amount equal to
$589,644.45 plus $147.41 per day for each day from and after December 31, 1995,
until the Effective Date.
6. CLASS 11. The Debtor will satisfy the Class 11 Claim by (a)
transferring, on the Effective Date, to Qualcomm title to the message
communications terminals and all related equipment and software not previously
sold pursuant to order of the Bankruptcy Court, (b) surrendering, as soon as
practicable and, in any event, within 30 days after the Effective Date, to
Qualcomm all message communications terminals not needed by the Purchaser for
its operations after the Effective Date or not previously sold pursuant to order
of the Bankruptcy Court prior to the Confirmation Date and (c) the Purchaser
entering into, as of the Effective Date, a lease with Qualcomm under which the
Purchaser leases the message communications terminals and related equipment and
software needed for its operations after the Effective Date. The lease will
have a term of two years and provide for base message charges of $60 per month,
with the same service and maintenance charges as prior to lease, and will
otherwise be in form and substance satisfactory to the Purchaser and Qualcomm.
Qualcomm will also receive an Allowed Unsecured Claim in an amount
equal to the difference between (a) $2,634,257.88 less (b) the proceeds of any
sale of the Qualcomm message communications terminals sold prior or subsequent
to the Confirmation Date and (c) the sum of (i) the product of the number of
message communications terminals surrendered by the Debtor to Qualcomm
multiplied by $1,200 and (ii) its Allowed Administrative Claim.
Qualcomm will also receive an Allowed Administrative Claim in an
amount equal to the charges due after the Petition Date and prior to the
Effective Date for base message services, excess message services and
maintenance parts at the rates specified in the pre-petition agreement between
the Debtor and Qualcomm with respect to the message communications terminals
utilized by the Debtor during such period plus an amount of $120,000 for use of
equipment since the Petition Date. The treatment specified herein shall be in
full satisfaction of all claims including but not limited to administrative
claims of the holder of the Class 11 Claim.
7. CLASS 12. Debtor shall reject the leases of the holder of the
Class 12 Claim. The Purchaser will purchase the 1991 trailers leased to the
Debtor for $21,000.00 per trailer for a total amount of $4,263,000. The
Purchaser and the holder of the Class 12 Claim shall enter into a lease on
agreed terms under which the Purchaser shall lease 1990 trailers previously
leased to Debtor
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for $600.00 per month on a month to month lease pursuant to the terms of a
lease to be executed by the holder of the Class 12 Claim and the Purchaser.
The holder of the Class 12 Claim shall be allowed to retain the security
deposit securing the Class 12 Claim. The treatment specified herein shall be
in full satisfaction of all claims including but not limited to
administrative claims of the holder of the Class 12 Claim.
8. CLASS 14. The holder of the Class 14 Claim shall retain its lien
on the collateral securing the Class 14 Claim to the extent of the Class 14
Claim. The Debtor shall retain the collateral securing the Class 14 Claim until
July 15, 1996. During such holding period, the Debtor, the Liquidation Committee
and the holder of the Class 14 Claim shall cooperate in diligently marketing for
sale the collateral securing the Class 14 Claim. The holder of the Class 14
Claim shall be entitled to take any action it deems reasonable and prudent to
attempt to sell, lease or otherwise dispose of the collateral provided that
during such holding period, any such sale, lease or other disposition shall be
conditioned upon approval by the Liquidation Committee and, if such approval is
not given, upon approval of the Bankruptcy Court. The Debtor and the
Liquidation Committee shall promptly notify the holder of the Class 14 Claim of
all bona fide offers received for purchase or lease of the Collateral. The
holder of the Class 14 Claim shall promptly notify the Debtor or the Liquidation
Committee of all bona fide offers received for purchase or lease of the
Collateral.
Debtor and/or the Liquidation Committee are authorized to enter into
leases of the collateral on a month-to-month basis, provided, however, that such
leases shall be subject to the approval of the holder of the Class 14 Claim.
The Debtor and/or the Liquidation Committee shall promptly pay the holder of the
Class 14 Claim all proceeds of any lease of the collateral or any other revenue
generated by the collateral. All property taxes and costs of insurance,
maintenance and security for the collateral shall be paid by the holder of the
Class 14 Claim and to the extent such payments exceed the proceeds paid to the
holder of the Class 14 Claim, such amounts shall be added to the Class 14 Claim.
If the collateral is sold within said holding period, the holder of
the Class 14 Claim shall be paid in full including all principal, accrued
interest and reasonable attorney's fees. Any remaining proceeds of the sale of
the collateral after such payment to the holder of the Class 14 Claim, shall be
property of the estate and available for distribution to other creditors in
accordance with the terms of this Plan. To the extent the holder of the Class 14
Claim, in its sole discretion, determines that its interests or the value of its
collateral are impaired in any manner during said holding period, the holder of
the Class 14 Claim shall be authorized to file a Motion with the Bankruptcy
Court seeking relief from the provisions of the Plan, to allow the holder of the
Class 14 Claim to proceed with its remedies allowed under its loan documents or
by law. If the collateral securing the Class 14 Claim has not been sold within
said holding period, the collateral shall be abandoned to the holder of the
Class 14 Claim in full satisfaction of the Class 14 Claim and the Debtor or the
Liquidating Committee, on behalf of the Debtor, shall be authorized to execute a
quit claim deed conveying the collateral to the holder of the Class 14 Claim.
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9. CLASS 15. The Debtor shall satisfy each Class 15 Claim by
surrendering to the holder of the Class 15 Claim the collateral securing the
Class 15 Claim.
10. CLASS 16. The Debtor shall satisfy each Class 16 Claim by
permitting the holder of the Class 16 Claim to recover its Class 16 Claim in
accordance with the insurance policy issued by Clarendon and in accordance with
any excess insurance policy issued by any other Insurer upon completion of the
claims resolution process set forth in Article VIII. Clarendon shall draw the
funds available under the letter of credit provided to Clarendon by Norwest in
connection with each insurance policy, deposit the funds in an interest bearing
account, which Clarendon shall hold to fund payments to the Class 16 Claims and
to pay for the expenses to resolve the Class 16 Claims in accordance herewith.
Upon the completion of the claims resolution process with respect to
each Class 16 Claim, to the extent that funds are available from the draw made
under the letter of credit, Clarendon shall promptly pay, from the proceeds of
the draw, to the holder of the Class 16 Claim, an amount in cash equal to the
lesser of (a) the allowed amount of the Class 16 Claim and (b) the amount of
liability retained by the Debtor under the applicable insurance policy with
respect to the Class 16 Claim.
Upon completion of the claims resolution process with respect to each
Class 16 Claim, in addition to any payment made from the proceeds of the draw,
Clarendon and any other Insurer shall promptly pay to the holder of the Class 16
Claim the remaining balance of the Class 16 Claim up to the limits of coverage
provided under the insurance policies issued by Clarendon and any other Insurer.
To the extent that, upon the liquidation of all of the Class 16
Claims, there are any funds remaining from the draw made under the letter of
credit, Clarendon shall immediately pay such funds to the Liquidation Committee
in accordance with any instructions provided by the Liquidation Committee.
11. CLASS 17. The Debtor shall satisfy each Class 17 Claim by
permitting the holder of the Class 17 Claim to recover its Class 17 Claim in
accordance with the bonds issued by Midwest to cover Indiana and North Carolina
workers' compensation claims. Upon resolution and allowance of the Claims of
holders of Class 17 Claims, Midwest shall pay in cash to the holder of the
Allowed Class 17 Claim the amount of the resolved Class 17 Claim; provided,
however, that Midwest shall not be required to pay in the aggregate more than
the face amount of the bonds.
After the applicable period for reopening any claim entitled to
recovery pursuant to the bonds has expired, upon the liquidation of all of the
Class 17 Claims and reimbursement to Midwest of any and all costs and expenses
to the extent provided in the bonds and/or the letter of credit, to the extent
that Midwest continues to hold any funds as a result of its draw on the letter
of credit previously posted by Debtor, Midwest shall immediately pay such
remaining funds to the Liquidation Committee.
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12. CLASS 18. The Debtor shall satisfy the Class 18 Claims by
permitting the Workers' Compensation Court to draw the funds available under the
letter of credit issued to the Worker's Compensation Court in connection with
the self-insurance program of the Debtor. The holders may recover their Class
18 Claims from the funds held by the Workers' Compensation Court as a result of
the draw and, upon exhaustion of such funds, from the Individual Self-Insured
Guaranty Fund.
To the extent that, upon the liquidation of all of the Class 18 Claims
and any Allowed Administrative Claims for Worker's Compensation under the laws
of the State of Oklahoma, the Workers' Compensation Court continues to hold any
funds as a result of its draws on the letters of credit, the Workers'
Compensation Court shall immediately pay such remaining funds to the Liquidation
Committee.
13. CLASS 19. The Liquidation Committee shall distribute to the
holders of Class 19 Claims their pro rata share of the funds, if any, remaining
after payment of all other Claims required to be paid by the Debtor or the
Liquidation Committee (subject to the funding of the reserve required by Article
VII (C) and the retention of the funds necessary to fund its operations). The
Liquidation Committee shall make an initial payment to each holder of a Class 19
Claim on the later of (a) 60 days after the Debtor or the Liquidation Committee
have paid or provided for the payment of all of the other Claims required to be
paid under the Plan and (b) 30 days after the date on which the order allowing
the Class 19 Claim becomes a Final Order, provided, however, that if the reserve
for Disputed Claims at such time is sufficiently large so that the distribution
to be made to the holders of Class 19 Claims would not be justified considering
the administrative cost of making the distribution, the Liquidation Committee
may defer said distribution. The Liquidation Committee shall make one or more
supplemental payments to the holders of Class 19 Claims when all Disputed Claims
have been resolved.
14. CLASS 20. The holders of the Class 20 Claims shall not receive
any distribution on account of the Class 20 Claims.
15. CLASS 21. The holders of the Class 21 Claims shall not receive
any distribution on account of the Class 21 Claims.
16. CLASS 22. The holders of the Class 22 Interests shall not
receive any distribution on account of the Class 22 Interests.
ARTICLE IV
MEANS FOR IMPLEMENTATION OF THE PLAN
A. OPERATION AS DEBTOR IN POSSESSION UNTIL THE EFFECTIVE DATE.
During the period from the Confirmation Date through the Effective Date, the
Debtor shall continue to operate
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its business as debtor in possession pursuant to Section 1107 and Section 1108
of the Bankruptcy Code.
B. VESTING OF ASSETS IN THE DEBTOR. On the Effective Date, all
property of the Estate and all of the property acquired by the Debtor shall vest
in the Debtor, free and clear of all Claims and of all liens and all security
interests securing such Claims (other than liens and security interests
expressly contemplated by the Plan) and other than the obligation to distribute
the Estate as provided in this Plan.
C. SALE OF ASSETS. On the Effective Date, the Debtor shall sell
pursuant to Section 363 of the Bankruptcy Code the following assets to the
Purchaser, free and clear of all liens and all security interests (other than
liens and the security interests securing any indebtedness assumed by the
Purchaser in the Plan):
(a) the automobiles of the Debtor listed on Exhibit A to the
Purchase and Sale Agreement;
(b) the computer hardware and software of the Debtor listed on
Exhibit B to the Purchase and Sale Agreement;
(c) the furniture and fixtures of the Debtor listed on Exhibit C
to the Purchase and Sale Agreement;
(d) the intangible personal property of the Debtor listed on
Exhibit D to the Purchase and Sale Agreement;
(e) the inventory of the Debtor listed on Exhibit E to the
Purchase and Sale Agreement;
(f) the rights of the Debtor under the leases listed on Exhibit
F to the Purchase and Sale Agreement;
(g) the leasehold improvements of the Debtor listed on Exhibit G
to the Purchase and Sale Agreement;
(h) the revenue-producing equipment of the Debtor listed on
Exhibit H to the Purchase and Sale Agreement (excluding any message
communications terminals contained therein); and
(i) the shop equipment of the Debtor listed on Exhibit I to the
Purchase and Sale Agreement.
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The Purchaser shall only purchase, and the Debtor shall only sell, the
limited assets of the Debtor described herein and the assets to be purchased by
the Purchaser under the Purchase and Sale Agreement shall not include unbilled
or billed accounts receivable for loads placed on trucks before 12:01 a.m.,
Oklahoma City, Oklahoma time, on the Effective Date, and shall not include the
assets to be retained by the Debtor or the Liquidation Committee pursuant to the
Plan. The Debtor will pay all costs and expenses associated with delivery of
all loads placed on trucks prior to 12:01 a.m., Oklahoma City, Oklahoma time, on
the Effective Date and such costs will be Ordinary Course Administrative Claims
as that term is defined herein.
On the Effective Date, in exchange for the assets being purchased by
the Purchaser from the Debtor, the Purchaser (a) shall pay to the Debtor the
Sale Proceeds in immediately available funds and (b) shall assume or pay the
Secured Claims which relate to the assets being purchased by the Purchaser
(other than the Class 2 Claims) as provided herein. The Purchaser shall not
assume any other liabilities of the Debtor, all of which other liabilities shall
be satisfied as provided herein.
The Debtor shall take and shall cause its officers, its employees and
its agents to take such actions as may be appropriate or advisable in connection
with the sale and are not inconsistent with the Plan, including, without
limitation, the execution and the delivery of all documents and all instruments
appropriate or advisable in connection with the sale and not inconsistent with
the Plan.
The consummation of the purchase shall be deemed to occur at 12:01
a.m., Oklahoma City, Oklahoma time, on the Effective Date and all loads placed
on trucks thereafter and all accounts receivable with respect thereto shall be
deemed assets of the Purchaser and all costs and expenses incurred thereafter
shall be deemed costs and expenses of the Purchaser.
The Purchaser shall cooperate with the Debtor in winding up the
affairs of the Debtor, including, without limitation, making reasonably
available any personnel employed by the Purchaser who are necessary in
connection therewith and providing access to any records with respect to the
Debtor within its possession.
D. USE OF SALE PROCEEDS. On the Effective Date, the Debtor shall receive
the Sale Proceeds in immediately available funds from the Purchaser. The Debtor
shall deposit the Sale Proceeds and all other cash received by the Debtor from
the liquidation of its assets, in a segregated debtor-in-possession account at
Bank IV or in such other account with a financial institution reasonably
acceptable to Debtor, Norwest, and the Liquidation Committee, and Norwest shall
have a first priority lien on such funds. Debtor and Bank IV or such other
approved depository bank shall execute such documentation as Norwest may
reasonably request to evidence and perfect such segregated lien and to protect
Norwest's lien therein. No amount shall be paid from such segregated account
prior to the satisfaction of the Class 2 Claim other than payments for the
Ordinary Course Administrative Claims, not to exceed a total of $1,500,000,
which shall be paid in the ordinary course of business and on normal business
terms from the Sale Proceeds in such segregated account. On the satisfaction of
the Class 2 Claim, and adequate cash being deposited to fully collateralize any
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undrawn letters of credit, as provided in Article III(E)(1) above, all amounts
remaining in the segregated account shall be released to the Debtor.
E. COLLECTION OF ACCOUNTS RECEIVABLE. The Purchaser will complete the
billing for any unbilled accounts receivable and will collect, on behalf of the
Debtor and Norwest, at no charge, the accounts receivable attributable to loads
placed on trucks prior to 12:01 a.m., Oklahoma City, Oklahoma time on the
Effective Date, which are collateral securing the Class 2 Claim. On or before
the Confirmation Date, the Purchaser, Debtor and Norwest shall execute an
agreement relating to the collection of such accounts receivable. All payments
will continue to be made by the account debtors to Norwest's lockbox and Norwest
shall be entitled to apply the proceeds of such accounts receivable against the
Class 2 Claim until the Class 2 Claim is satisfied. All proceeds of such
accounts receivable collected after the satisfaction of the Class 2 Claim shall
be promptly paid by Norwest to the Debtor. Norwest shall continue to enjoy all
of its rights and remedies with respect to such accounts receivable until the
Class 2 claim is paid in full, including, without limitation, the right to
inspect the Debtor's books and records and any books and records maintained by
the Purchaser with respect to its collection of such accounts receivable, to
contact account debtors, and to enforce collective rights thereto. The
agreement among Norwest, Debtor and the Purchaser regarding billing and
collection of accounts receivable shall contain terms which afford to Norwest
the same types of protections and rights which Norwest enjoys as to receivables
pursuant to the Loan Stipulation.
F. LIQUIDATION OF OTHER ASSETS. On and after the Effective Date, the
Liquidation Committee and/or the Debtor under the direction and control of the
Liquidation Committee shall liquidate, as expeditiously as possible, all of the
other assets of the Debtor to maximize the funds available for distribution
under the Plan. The Debtor and/or the Liquidation Committee may, but are not
required to, obtain the approval of the Bankruptcy Court for any such
liquidation.
The Liquidation Committee or the Debtor under the control and
direction of the Liquidation Committee shall take such actions as may be
appropriate or advisable in connection with the liquidation of the remaining
assets of the Estate.
G. AVOIDING POWERS. The Liquidation Committee in its own name or in
the name of the Debtor, at its option, shall prosecute, settle or abandon the
Estate's claims and causes of action, including any claims pursuant to sections
502, 544, 545, 547, 548 or 549 of the Bankruptcy Code, as is consistent with the
exercise of reasonable business judgment.
H. CANCELLATION OF EXISTING FREYMILLER STOCK. On the Effective Date, the
Existing Freymiller Common Stock shall be cancelled and shall be of no further
force and effect.
I. DEREGISTRATION OF EXISTING FREYMILLER COMMON STOCK. As soon as
practicable after the Effective Date, unless the Debtor has previously
terminated such registration, the Debtor shall make the appropriate filing with
the Securities and Exchange Commission to terminate its registration under
Section 12(g) of the Securities Exchange Act of 1934, as amended, and shall take
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such other actions as may be appropriate and advisable in connection with the
termination of such registration and are not inconsistent with the Plan.
The Debtor shall continue to make all filings required under the
Securities Exchange Act of 1934, as amended, until its obligations to make such
filings have been terminated in accordance therewith.
The Debtor shall take and shall cause its officers, its employees and
its agents to take such actions as may be appropriate or advisable in connection
with such deregistration and such compliance and are not inconsistent with the
Plan.
J. DISSOLUTION OF THE DEBTOR. As soon as practicable after the Effective
Date, the Debtor shall be dissolved. The Debtor shall take such actions as may
be appropriate or advisable in connection with such dissolution and are not
inconsistent with the Plan.
K. OTHER FILINGS. The Debtor shall make such filings and take such other
actions with respect to regulatory requirements as may be appropriate or
advisable in connection with the Plan and as are not inconsistent therewith.
L. FURTHER ACTIONS. The Debtor shall take, and shall cause its officers,
its employees and its agents to take such actions as may be appropriate or
advisable in connection with the consummation of the Plan and are not
inconsistent with the Plan, including, without limitation, the execution and the
delivery of all documents and all other instruments appropriate or advisable in
connection with the Plan and not inconsistent with the Plan.
M. DISSOLUTION OF COMMITTEES AND APPOINTMENT OF LIQUIDATION COMMITTEE.
On the Effective Date, the Committee shall automatically dissolve and all
members of the Committee shall be discharged from all rights and all duties
arising from, or related to, their membership (other than their right to obtain
reimbursement of Administrative Expenses pursuant to Section 503(b) of the
Bankruptcy Code). On the Effective Date, the persons who were serving as
members of the Committee immediately prior to its dissolution shall be deemed
appointed to the Liquidation Committee. As liquidating agents, the Liquidation
Committee shall supervise the affairs of the Debtor, including, without
limitation, the liquidation of its assets, the making of distributions and the
claims objection process and shall exercise all of the powers of the Debtor
hereunder, including, without limitation, general oversight of its director and
its officers. In the event, the officers and director of Debtor resign or are
otherwise unable to continue with their duties, the Liquidation Committee shall
be authorized to take all actions on behalf of the Debtor or to appoint new
officers and directors of the Debtor. After payment in full of the Ordinary
Course Administrative Claims and the Class 2 Claim, including adequate cash to
fully collateralize any unfunded letters of credit, the Liquidation Committee
shall be authorized in its sole discretion to transfer all remaining assets to
the Liquidation Committee to be held in trust for purposes of liquidation and
distribution in accordance with the terms of this Plan. After distribution of
the assets of the Estate or at such earlier
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time as the Liquidation Committee shall determine, the Liquidation shall
request the Bankruptcy Court to enter a final decree in the case.
The Liquidation Committee shall be authorized to employ such
professionals, agents and employees, upon reasonable terms, as it determines are
needed to assist the Liquidation Committee in liquidation and distribution of
the assets of the estate in accordance with the Plan. To the extent the
Liquidation Committee requires assistance or information from the professionals
employed by the Debtor during the bankruptcy proceeding, the Liquidation
Committee shall make arrangements to compensate such professionals for their
time and expenses in providing such assistance or information.
ARTICLE V
CORPORATE GOVERNANCE
A. CORPORATE GOVERNANCE. On the Effective Date, the Articles of
Incorporation shall be amended to change its corporate name to a name other than
"Freymiller Trucking, Inc." determined by the Board of Directors and shall
otherwise be amended in the following manner:
1. SECTION 5.1. Section 5.1 of the Articles of Incorporation shall
be amended to read in its entirety as follows:
Section 5.1 AUTHORIZED CLASS AND NUMBER OF SHARES.
The capital stock of the Corporation shall be of
one class and kind, which may be referred to as
common shares. The total number of shares which
the Corporation shall have the authority to issue
shall be 10,000,000 shares with a par value $0.01
per share.
All of the shares of capital stock issued prior to
[EFFECTIVE DATE] have been cancelled by that
certain Plan of Reorganization of Freymiller
Trucking, Inc. confirmed by the United States
Bankruptcy Court for the Western District of
Oklahoma on [CONFIRMATION DATE].
The Corporation is prohibited from issuing any nonvoting equity securities.
2. SECTION 5.2. Section 5.2 of the Articles of Incorporation shall
be amended to read in its entirety as follows:
SECTION 5.2. VOTING RIGHTS OF SHARES. The
Corporation's shares shall have unlimited voting
rights and each outstanding share shall, when
validly issued by the Corporation, entitle
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the record holder thereof to one vote at all
shareholders' meetings on all matters submitted to
a vote of the shareholders of the Corporation.
Except as otherwise expressly provided in this Plan of Reorganization, the
Articles of Incorporation and the Bylaws shall remain in full force and effect
(until amended, repealed or restated in accordance with applicable law or the
dissolution of the Debtor in accordance with the Plan).
B. MANAGEMENT. On the Effective Date, the Board of Directors of the
Debtor shall consist of one directorship. The sole director of the Debtor on
the Effective Date shall be Don H. Freymiller. The sole director shall hold his
directorship on the terms and subject to the conditions set forth in the
Articles of Incorporation and the Bylaws, in each case as amended pursuant to
Article V(A).
On the Effective Date, the Debtor shall have two officers, Don H.
Freymiller, who shall serve as Chairman of the Board and President, and Richard
E. Kuehn, who shall serve as Executive Vice President and Secretary. Each
person shall hold his or her office on the terms and subject to the conditions
set forth in the Articles of Incorporation and the Bylaws, in each case as
amended pursuant to Article V(A).
C. NECESSARY CORPORATE ACTION. All of the corporate actions appropriate
or advisable to carry out the Plan shall be deemed to have occurred on the
Effective Date and such actions shall be authorized and approved in all respects
without any requirement of further action by either the Board of Directors of
the Debtor or the shareholders of the Debtor.
ARTICLE VI
EXECUTORY CONTRACTS AND UNEXPIRED LEASES
A. ASSUMPTION OF CERTAIN EXECUTORY CONTRACTS AND UNEXPIRED LEASES.
Except as otherwise provided in the Plan, the Debtor will assume, on the
Confirmation Date, each of the executory contracts and the unexpired leases
identified at the Confirmation Hearing or identified in a pleading filed with
the Bankruptcy Court on or before the Confirmation Hearing. All executory
contracts and unexpired leases so identified shall be assigned by the Debtor to
the Purchaser on the Effective Date.
The identification of a contract or a lease by the Debtor shall not
constitute an admission by the Debtor that the contract or the lease is an
executory contract or an unexpired lease, as the case may be, or that the Debtor
has any liability under the contract or the lease.
B. CONFIRMATION ORDER AS APPROVAL OF ASSUMPTION AND ASSIGNMENT. The
Confirmation Order shall constitute an order of the Bankruptcy Court approving
the assumption and
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assignment of the executory contracts and the unexpired leases described in
Article VI (A) on the Confirmation Date pursuant to Section 365 of the
Bankruptcy Code.
C. PAYMENT OF CURE AMOUNTS. The Purchaser shall satisfy any monetary
amounts by which any executory contract or any unexpired lease assumed and
assigned to the Purchaser under the Plan is in default pursuant to Section
365(b)(1) of the Bankruptcy Code or as otherwise agreed by the Purchaser and the
other party to the executory contract or unexpired lease or as otherwise
provided in the Plan.
If there is a dispute concerning (1) the amount of any cure payment,
(2) the ability of the Purchaser to provide "adequate assurance of future
performance" (within the meaning of Section 365 of the Bankruptcy Code) under
the executory contract or the unexpired lease to be assumed or (3) any other
matter pertaining to the assumption of an executory contract or an unexpired
lease, the Purchaser shall not make the payment required by thisArticle VI(C)
with respect to that executory contract or that unexpired lease until the entry
of a Final Order resolving the dispute and approving the assumption and
assignment. The Purchaser shall make any payment that would otherwise have been
due prior to the entry of the Final Order within 30 days after the entry of the
Final Order.
D. REJECTION OF OTHER EXECUTORY CONTRACTS AND UNEXPIRED LEASES. On the
Confirmation Date, each executory contract and each unexpired lease that has not
previously expired or been terminated pursuant to its respective terms (other
than any executory contract or any unexpired lease that has been previously
assumed or rejected by the Debtor or that is assumed and assigned by the Debtor
pursuant toArticle VI(A)) shall be deemed rejected by the Debtor pursuant to
Section 365 of the Bankruptcy Code.
The Confirmation Order shall constitute an order of the Bankruptcy
Court approving the rejection by the Debtor of the executory contracts and the
unexpired leases described in thisArticle VI(D) pursuant to Section 365 of the
Bankruptcy Code on the Confirmation Date.
If the rejection of an executory contract or an unexpired lease
pursuant to thisArticle VI(D) gives rise to a Claim by the other party to the
executory contract or the unexpired lease, the Claim shall be forever barred
unless a proof of claim with respect to the Claim is filed with the Bankruptcy
Court within 30 days after the Confirmation Date.
ARTICLE VII
DISTRIBUTIONS
A. TRANSFER OF ESTATE TO LIQUIDATION COMMITTEE. After payment in full of
the Ordinary Course Administrative Claims and the Class 2 Claim, including cash
to fully collateralize any unfunded letters of credit, the Liquidation
Committee, in its sole discretion, may, but is not required to, cause the Debtor
to transfer all remaining property of the Estate to the Liquidation
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Committee to be held in trust for holders of administration claims and all
other Allowed Claims against the Estate. Prior to any such transfer, the
Liquidation Committee shall be entitled to direct and control the liquidation
and distribution of the assets of the Estate in accordance with the terms of
the Plan.
B. DISTRIBUTIONS TO HOLDERS OF CERTAIN ADMINISTRATIVE CLAIMS. Pursuant
to normal business terms, Debtor shall make payment to the Ordinary Course
Administrative Claims from the Sale Proceeds paid by the Purchaser as provided
in Article IV(D).
C. DISTRIBUTIONS BY THE LIQUIDATION COMMITTEE. Except for the payments
under Article VII(B) and the rights of Norwest to collect accounts receivable
and other sums as set forth in Articles III(E)(1) and IV(E) above, the
Liquidation Committee shall be responsible for making all of the distributions
required by the Plan. The Liquidation Committee may make those distributions
(except the Ordinary Course Administrative Claims) or may employ another person
or another entity to make, or to assist in the making of, those distributions.
Any person or any entity employed by the Liquidation Committee shall be employed
on such terms and subject to such conditions as may be determined by the
Liquidation Committee, in its sole discretion, which terms may include, without
limitation, the payment of reasonable compensation to any such person or any
such entity and the reimbursement of the reasonable out-of-pocket expenses
incurred by any such person. Subject to the provisions of the Plan, including
but not limited to the rights of Norwest to be paid in full from the collection
of accounts receivable and other sums as set forth in Article III(E)(1), the
Liquidation Committee shall make any such payment or any such reimbursement out
of the funds available to the Liquidation Committee for distribution to the
holders of Claims. Neither the Liquidation Committee nor any person or any
entity employed by the Liquidation Committee shall be required to provide any
bond in connection with the making of those distributions. The Liquidation
Committee shall reserve reasonable funds necessary to pay the expenses of
liquidation of the assets of the estate before making distributions under the
Plan. The Liquidation Committee shall make the distributions in accordance with
the priorities of Section 507 of the Bankruptcy Code and this Plan. The
Liquidation Committee shall pay or establish a reserve for payment of all
expenses and claims having such priority in full before paying any expenses and
claims of lower priority. To the extent the Liquidation Committee has
insufficient funds to pay all expenses and claims in any priority or class in
full, the holders of such expenses and claims shall be paid prorata.
D. DATE OF DISTRIBUTION. Subject to the provisions of the Plan,
including but not limited to Article VII (B) and Article III (E)(1), and to the
extent funds are available, the Liquidation Committee shall make all
distributions required to be made with respect to Allowed Claims on the later of
(1) 60 days after the Effective Date and (2) the date the Class 2 Claim is
satisfied in full in accordance with the Plan, except as otherwise ordered by
the Bankruptcy Court or as otherwise provided by the Plan, provided, however,
that if the reserve for Disputed Claims at such time is sufficiently large so
that the distribution to be made to the holders of any class of Claims would not
be justified considering the administrative cost of making the distribution, the
Liquidation Committee may defer said distribution to said class of Claims. The
Liquidation Committee shall
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make one or more supplemental payments to the holders of Claims when all
Disputed Claims have been resolved. Any such distribution shall be deemed
made as of the Effective Date if made on the Effective Date or as promptly
thereafter as practicable.
After payment in full of the Class 2 Claim, the Liquidation Committee
shall make all distributions (except the Ordinary Course Distributions) required
to be made with respect to Claims that are allowed after the Effective Date
pursuant to Article III and Article VIII.
E. DELIVERY OF DISTRIBUTIONS. Subject to Rule 9010 of the Bankruptcy
Rules, all distributions to the holder of an Allowed Claim required by the Plan
shall be made at the address of the holder set forth on any proof of claim filed
by the holder or, if the holder has not filed or been deemed to have filed a
proof of claim, at the last known address of the holder according to the records
of the Debtor.
If a distribution is returned to the Liquidation Committee as
undeliverable, the Liquidation Committee shall not be required to take any
further action with respect to the delivery of the distribution unless and until
the earlier of (1) the date on which the Liquidation Committee is notified in
writing of the then current address of the holder entitled to receive the
distribution and (2) 60 days after the distribution is returned. If the
Liquidation Committee is notified in writing of the then current address of the
holder prior to the sixtieth day after the distribution is returned, the
Liquidation Committee shall promptly make the distribution required by the Plan
to the holder at the then current address. If, on the sixtieth day after a
distribution is returned as undeliverable, the Liquidation Committee continues
to hold any distribution returned to the Liquidation Committee as undeliverable,
the amount that would otherwise be distributable shall be placed in the reserve
established for Disputed Claims in Article VIII(D)(2); provided, however, if no
Disputed Claims remain and if the distribution of excess funds provided in
Article VIII(D)(6) has occurred, such amount shall be contributed by the
Liquidation Committee to a charity selected by the Liquidation Committee.
F. MEANS OF PAYMENTS. The Liquidation Committee shall make each
distribution to be made by the Liquidation Committee in cash in United States
dollars by a check drawn on a financial institution selected by the Liquidation
Committee, in its sole discretion.
G. DE MINIMIS DISTRIBUTIONS. The Liquidation Committee shall not be
required to make a distribution that would otherwise consist of $5.00 or less in
cash. The Liquidation Committee shall continue to hold any such distribution
until the earlier of (1) the date on which the Debtor receives a written request
from the person or the entity entitled to receive such distribution that the
distribution be made and (2) 90 days after the Effective Date. If the
Liquidation Committee receives such a written request in writing prior to the
ninetieth day after the Effective Date, the Liquidation Committee shall promptly
make the distribution required by the Plan. If, on the ninetieth day after the
Effective Date, the Liquidation Committee continues to hold any distribution
that would otherwise consist of $5.00 or less in cash, the right of the holder
to receive the
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distribution shall terminate and such amount shall be placed in the reserve
established for Disputed Claims in Article VIII(D)(2).
H. COMPLIANCE WITH TAX REQUIREMENTS. The Liquidation Committee shall
comply with all applicable federal and state tax requirements in connection with
the distributions to be made under the Plan, including, without limitation, any
applicable back-up withholding requirements. Notwithstanding anything else
contained in the Plan, all distributions to be made under the Plan shall be
subject to any applicable back-up withholding requirements.
I. SETOFF. The Liquidation Committee may, pursuant to Section 553 of the
Bankruptcy Code, set off any distribution to be made under the Plan to a holder
of an Allowed Claim with respect to the Allowed Claim any amount owed to the
Debtor by the holder. A failure by the Liquidation Committee to effect such a
setoff shall not affect the obligation of the holder to pay to the Liquidation
Committee the amount owed to the Debtor by the holder.
ARTICLE VIII
PROCEDURES FOR RESOLVING CLAIMS AND INTERESTS
A. BAR DATES FOR CLAIMS AND INTERESTS GENERALLY. All holders of Claims
(other than holders of Administrative Claims and the United States Trustee) and
Interests shall file proofs of claim or proofs of interest, as the case may be,
with the Bankruptcy Court (1) no later than the bar dates previously established
by the Bankruptcy Court or (2), to the extent such holders were not subject to
such bar date, (a) within 30 days after the Effective Date or (b) by such other
date as may be established by the Bankruptcy Court. Any holder who does not
file a proof of claim with respect to such a Claim or a proof of interest with
respect to such an Interest shall be forever barred from asserting the Claim or
the Interest unless the Claim is listed on the schedules filed by the Debtor
pursuant to Section 521 of the Bankruptcy Code or the Interest is registered on
the Effective Date in the stock register that either is maintained by, or on
behalf of, the Debtor.
B. BAR DATES FOR ADMINISTRATIVE CLAIMS. All requests for payment of
Administrative Claims shall be filed with the Bankruptcy Court in the following
manner:
1. GENERAL ADMINISTRATIVE CLAIMS. All requests for payment of
Administrative Claims (other than Administrative Claims of Professionals) shall
be filed with the Bankruptcy Court within 30 days after the Effective Date. Any
holder of an Administrative Claim that does not file a request for payment of
the Administrative Claim within such 30 day period shall be forever barred from
asserting the Administrative Claim.
2. ADMINISTRATIVE CLAIMS OF PROFESSIONALS. All applications by
Professionals for compensation or reimbursement of expenses pursuant to Section
327, Section 328, Section 330, Section 331, Section 503(b) or Section 1103 of
the Bankruptcy Code for services rendered on or before the Effective Date must
be filed for final allowance no later than 30 days after the Effective Date.
Any Professional that does not file an application within such 30 day period
shall be forever
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barred from asserting the Administrative Claim. All compensation or
reimbursement of expenses of Professionals for services rendered after the
Effective Date shall be subject to the approval of the Liquidation Committee,
pursuant to such procedures as it may establish.
C. PROSECUTION OF OBJECTIONS. After the Effective Date, the Liquidation
Committee shall have the sole authority to object to Claims and Interests. The
Liquidation Committee shall also have the sole authority after the Effective
Date to litigate any Claim or any Interest to judgment, to settle or to
compromise any Claim or any Interest or to withdraw any objection to any Claim
or any Interest.
Unless another date is established by the Bankruptcy Court or the
Plan, any objection to a Claim or an Interest shall be filed with the Bankruptcy
Court and served on the holder of the Claim or the Interest within 90 days after
the later of (1) the Effective Date and (2) the date that a proof of claim or a
proof of interest, as the case may be, with respect to the Claim or the Interest
is filed or is deemed to have been filed with the Bankruptcy Court. The
Liquidation Committee shall have the right to petition the Bankruptcy Court for
an extension of said date if a complete review of the Disputed Claims cannot be
completed by said date.
If no objection has been filed to a Claim or an Interest within the
applicable period, the Claim or the Interest shall be treated as an Allowed
Claim or an Allowed Interest to the extent that the Claim or the Interest has
not been previously allowed or disallowed by the Bankruptcy Court.
D. TREATMENT OF DISPUTED CLAIMS AND DISPUTED INTERESTS. Disputed Claims
and Disputed Interests shall be treated in the following manner:
1. ABSENCE OF PAYMENT. Notwithstanding anything else contained in
the Plan, the Liquidation Committee shall not be required to make any
distribution with respect to any Disputed Claim or any Disputed Interest until
the Disputed Claim becomes an Allowed Claim or the Disputed Interest becomes an
Allowed Interest.
2. ESTABLISHMENT OF RESERVES. Within 90 days after the Effective
Date, the Liquidation Committee shall estimate, with respect to each Class
(other than Class 16, Class 17 and Class 18) the maximum amount which the
Liquidation Committee expects that it will be required to pay the holders of all
of the then Disputed Claims. On the later of (1) 90 days after Effective Date
and (2) the date Ordinary Course Administrative Claims and the Class 2 Claim
are paid in full, the Liquidation Committee shall, to the extent funds are
available, deposit such maximum amount in an account established by the
Liquidation Committee in a financial institution selected by the Liquidation
Committee, in its sole discretion. The Liquidation Committee shall not be
required to establish a reserve with respect to Class 16, Class 17 and Class 18.
3. METHOD OF RESOLUTION - GENERAL. Each Disputed Claim (other than
a Disputed Claim which involves a personal injury, property damage or wrongful
death claim or which
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would be classified as a Class 18 Claim) and each Disputed Interest shall be
resolved by the Bankruptcy Court.
4. METHOD OF RESOLUTION - PERSONAL INJURY AND WRONGFUL DEATH CLAIMS.
Each Disputed Claim which involves a personal injury, property damage or
wrongful death claim shall be resolved in the following manner:
a. INFORMATION ASSEMBLY. Within 30 days after the Effective
Date, the Liquidation Committee shall mail to each holder of such a Disputed
Claim a form prepared by the Liquidation Committee requesting such information
as the Liquidation Committee believes is necessary to evaluate such Disputed
Claim.
No later than 30 days after each holder of such a Disputed Claim
receives such form, the holder shall return the completed form to the
Liquidation Committee and any Insurer on such Claim. The completed form must be
signed, under penalty of perjury, by the holder and the holder's counsel, if
any, and the signature of the holder must be notarized. Each form must have the
following documentation attached to such form:
(i) For personal injuries and wrongful death claims, (A)
copies of all medical bills, (B) copies of all medical
reports, (C) copies of all expert reports, (D) copies
of all tax returns for the last five years, (E) copies
of all x-rays, (F) copies of all MRI's, (G) copies of
all wage statements, W-2 forms, W-4 forms, and 1099
forms for the past five years, (H) copies of all
pictures of any accident scene, (I) an executed
SSA-7004-SM, Social Security Administration Request for
Earnings and Benefit Statement, designating a person
specified by the Liquidation Committee as addressee,
(J) an executed IRS 4506 Form, Request for Copy of
Transcript of Tax Form, designating a person specified
by the Liquidation Committee as the recipient of the
documents, and (K), in the case of wrongful death
claims, copies of all autopsy reports.
(ii) For property damage claims, (A) copies of all repair
invoices and records and (B) copies of all expert
reports.
If the form is not returned in accordance herewith within the required 30 day
period, the Disputed Claim shall be deemed disallowed.
Within 90 days from the date on which the Liquidation Committee and
the Insurer, if any, receive a form returned in accordance herewith, the
Liquidation Committee or, if there is an Insurer, the Insurer shall:
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(i) offer to settle the Disputed Claim;
(ii) deny the Disputed Claim; or
(iii) request additional information from the holder of
the Disputed Claim, including, without limitation,
for personal injury claims, submission to an
independent medical examination.
If an offer of settlement is made, the holder must accept or reject
the offer of settlement within 30 days after the offer of settlement is made.
If the offer of settlement is not accepted or rejected within such 30 day
period, the Disputed Claim shall be deemed disallowed. If the holder accepts
the offer of settlement, the Disputed Claim shall be deemed allowed on the date
on which the Debtor or the Insurer, as the case may be, receives notice of such
acceptance.
If additional information is requested, the holder must provide such
additional information within 30 days of the request. If the holder fails to
provide such additional information within such 30 day period, the Disputed
Claim shall be deemed disallowed. If the requested additional information is
provided within such 30 day time period, the Liquidation Committee or, if there
is an Insurer, the Insurer must make an offer of settlement or deny a Disputed
Claim within 90 days after it receives such additional information.
If a holder of a Disputed Claim rejects an offer of settlement within
30 days after the offer of settlement is made or the Disputed Claim is denied,
the holder shall notify the Liquidation Committee and the Insurer, if any, that
mediation is requested. If a holder fails to request mediation, the Disputed
Claim shall be deemed disallowed.
b. MEDIATION. Each such Disputed Claim for which mediation is
requested shall be submitted to mediation by a mediator assigned by the
Bankruptcy Court. Such mediator shall work with all persons and all entities
involved, including, without limitation, any Insurer, to negotiate a mutually
satisfactory resolution with respect to the Disputed Claim. Within 30 days of
the date on which a mediator is appointed, the mediator shall schedule a
mediation conference in Oklahoma City, Oklahoma at which all persons and all
entities involved shall either (i) appear personally or (ii) be represented by a
person authorized to enter into a binding settlement agreement on behalf of such
involved person or such involved entity. The mediator shall give each such
involved person and each such involved entity at least 10 days prior written
notice of the date, the time and the place of the conference. If any involved
person or any involved entity which has received notice of such mediation (or
his, her or its designated representative) fails to appear at such mediation
conference, any other person or any other entity may petition the Bankruptcy
Court for an award of costs, including, without limitation, reasonable
attorneys' fees against the non-attending person or the non-attending entity.
In addition, if the holder or the holder's counsel, if any, fails to attend, the
Disputed Claim shall be deemed disallowed.
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At the conclusion of the mediation conference, each person and each
entity (or its designated representative) shall sign before the mediator a
statement (i) stating that the Disputed Claim has been resolved by mutual
agreement (subject to approval of the Bankruptcy Court) and stating the basis of
such resolution, (ii) stating that the Disputed Claim shall be submitted to
binding arbitration or (iii) stating that the Disputed Claim shall proceed
before the District Court.
c. ARBITRATION. If a Disputed Claim is submitted to binding
arbitration, the Disputed Claim shall be resolved by binding arbitration
conducted in accordance with the Commercial Arbitration Rules of the American
Arbitration Association. No person or entity involved in such arbitration shall
be permitted to appeal any award except as expressly permitted by Section 10 of
the Federal Arbitration Act, as amended, and there shall be no right to a de
novo trial subsequent to the arbitration.
d. TRIAL. Upon compliance with the procedures set forth in
this Article VIII(D)(4), the holder of a Disputed Claim subject to this Article
VIII(D)(4) shall have the right to pursue such Disputed Claim in the District
Court in accordance with 28 U.S.C. Section 157(b)(5) and the Federal Rules of
Civil Procedure. Any case filed prior to the Petition Date shall be transferred
from the forum in which it is pending to the District Court and, regardless of
whether a case has been filed prior to the Petition Date, the District Court
shall determine the court in which the Disputed Claim shall be decided. The
Disputed Claim shall be prosecuted in the court determined by the District
Court.
e. EXPENSES OF RESOLUTION OF PERSONAL INJURY AND WRONGFUL DEATH
CLAIMS. The expenses of the resolution of personal injury and wrongful death
claims in Class 16 shall be paid by Clarendon from the proceeds of the letter of
credit provided to Clarendon and the interest earned on the proceeds of the
letter of credit. Such expenses shall include the costs of mediation and
arbitration, and the expenses incurred by the Debtor and/or the Liquidation
Committee in connection with their participation in the claims resolution
process.
5. PAYMENT OF DISPUTED CLAIMS AND DISPUTED INTERESTS. Upon the
resolution of any Disputed Claim (other than a Class 16 Claim, Class 17 Claim or
a Class 18 Claim), the Liquidation Committee shall distribute to the holder of
the resolved Disputed Claim from the reserve established by the Liquidation
Committee pursuant to Article VIII(D)(2) for that Class the funds which the
holder would have already received on account of such resolved Disputed Claim
had such Disputed Claim been allowed on the Effective Date.
Upon resolution of any Disputed Claim which is a Class 16, Class 17,
or Class 18 Claim, the holder shall receive the distribution provided by Article
III.
6. RETURN OF EXCESS FUNDS. Upon the resolution of all Disputed
Claims in any Class for which a reserve has been established, the Liquidation
Committee shall promptly distribute the remaining funds (to the extent in excess
of $2,000 in the aggregate) which it then holds in reserve for the Disputed
Claims to the holders of Class 19 Claims pro rata based on the allowed amount of
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their respective Class 19 Claims (subject to the retention of amounts necessary
to fund the operations of the Liquidation Committee). If the Liquidation
Committee holds less than $2,000 in the aggregate, such amount shall be
contributed to a charity selected by the Liquidation Committee.
ARTICLE IX
CONDITIONS PRECEDENT TO CONSUMMATION OF THE PLAN
A. CONDITIONS TO CONSUMMATION. The Plan shall not become effective
unless and until each of the following conditions have been satisfied or have
been waived in accordance with Article IX(B):
1. ENTRY OF THE CONFIRMATION ORDER. The Bankruptcy Court shall have
entered the Confirmation Order on its docket.
2. SALE OF ASSETS. The Debtor shall have consummated the sale of
certain of its assets to the Purchaser contemplated in the Plan.
3. AVAILABILITY OF WORKING CAPITAL FACILITY. Norwest shall have
provided to the Debtor a working capital and letter of credit facility through
the Effective Date in accordance with the Plan.
4. RELEASE OF CLASS 3 COLLATERAL. The Purchaser shall have arranged
for the release to the Debtor of the collateral securing the Class 3 Claim.
5. SUFFICIENT FUNDS HELD BY THE LIQUIDATION COMMITTEE. The
Liquidation Committee and/or the Debtor shall have available for use in
connection with the funding of the distributions under the Plan and the payment
of other amounts under the Plan, which amount may be available through the asset
sale to the Purchaser and the liquidation of the other assets of the Debtor.
6. REGULATORY APPROVALS. The Debtor shall have received all
required regulatory approvals, if any.
7. SELF-INSURED STATUS OF PURCHASER. The Purchaser shall have
received approval by the Workers Compensation Board for self-insured status
under the laws of the State of Oklahoma and applicable regulations.
8. ACCOUNTS RECEIVABLE BILLING AND COLLECTION AGREEMENT. The
Debtor, the Purchaser and Norwest shall have executed an Accounts Receivable
Billing and Collection Agreement in form and substance satisfactory to each on
or before the Confirmation Date.
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9. AGREEMENTS BETWEEN CREDITORS AND PURCHASER. The Purchaser and
each of the holders of Class 7, 9, 10, 11, and 12 Claims shall have executed
agreements with respect to the assumption of such claims by Purchaser as
provided in the plan in form and substance satisfactory to each on or before the
Confirmation Date. Further, at the option of the Purchaser, such agreements may
provide that the collateral securing the claims of the holders of Class 7, 9,
10, 11, and 12 Claims shall be abandoned by the Debtor and assigned to each of
such holders and purchased and/or leased, as appropriate, directly from such
holders by the Purchaser.
These conditions are intended solely as prerequisites to the
effectiveness of the Plan. No person or entity (other than the Debtor or the
Purchaser in connection with the condition in Article IX(A)(4) only) has any
affirmative obligation to satisfy or to cause the satisfaction of any of these
conditions.
B. RIGHTS OF THE DEBTOR AND/OR PURCHASER. Each of the conditions (except
the condition in Article IX(A)(7), (8) and (9)) to consummation of the Plan is
intended for the benefit of the Debtor. The Debtor and/or the Liquidation
Committee may assert the failure to satisfy a condition and the absence of a
waiver of the condition, regardless of the circumstances giving rise to such
failure and absence, including, without limitation, any action or any omission
on the part of the Debtor.
The Debtor, with the written consent of the Liquidation Committee,
may waive any condition to consummation of the Plan in whole or in part. The
failure by the Debtor to exercise any of its rights under this Article IX(B)
does not waive any other right and each such right is an on-going right,
which may be asserted by the Debtor at any time.
The conditions in Article IX(A)(7) and (9) are intended for the
benefit of the Purchaser. The Purchaser may waive such conditions in whole or
in part. The condition in Article IX(A)(8) is intended for the benefit of
Norwest. Norwest may waive such condition in whole or in part.
C. VACATION OF CONFIRMATION ORDER. Each of the conditions contained
in Article IX(A) must either be satisfied or be waived on or prior within 30
days after the Confirmation Date. If any such condition has not been satisfied
or waived within 30 days after the Confirmation Date, the Bankruptcy Court
shall, upon motion by any party in interest and upon notice to such parties in
interest as the Bankruptcy Court may direct, vacate the Confirmation Order
unless the Bankruptcy Court determines that additional time for satisfaction
of any such condition should be allowed. Notwithstanding the foregoing, the
Bankruptcy Court shall not vacate the Confirmation Order if, prior to the time
at which the Bankruptcy Court would otherwise enter an order vacating the
Confirmation Order, all of the conditions contained in Article IX(A) have
either been satisfied or been waived. If Bankruptcy Court vacates the
Confirmation Order, the Plan shall be null and void and nothing contained in
the Plan shall (1) constitute a waiver or release of any Claims by or against,
or any Interests in, the Debtor or (2) prejudice in any manner the rights of
the Debtor.
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ARTICLE X
CONFIRMABILITY AND SEVERABILITY OF A PLAN AND CRAMDOWN
The Debtor may request the Bankruptcy Court to confirm the Plan
pursuant to Section 1129(b) of the Bankruptcy Code if an impaired Class does not
accept the Plan pursuant to Section 1126 of the Bankruptcy Code. To the extent
that the Debtor requests the Bankruptcy Court to confirm the Plan pursuant to
Section 1129(b) of the Bankruptcy Code, the Debtor may modify the Plan to the
extent, if any, that confirmation under Section 1129(b) of the Bankruptcy Code
requires such modification. The right of the Debtor to modify the Plan under
this Article X does not limit the ability of the Debtor to modify the Plan under
Article XIV(B).
ARTICLE XI
DISCHARGE, TERMINATION AND INJUNCTION
A. DISCHARGE. Except as provided in the Confirmation Order or the Plan,
the rights afforded under the Plan are in exchange for, and in complete
satisfaction, discharge and release of, all of the Claims against, and Interests
in, the Debtor. Except as provided in the Confirmation Order or the Plan, the
confirmation of the Plan shall (1) discharge the Debtor from all Claims and
other debts that arose before the Confirmation Date and all debts of the kind
specified in Section 502(g), Section 502(h) or Section 502(i) of the Bankruptcy
Code, whether or not (a) a proof of claim based on such debt is filed or deemed
filed pursuant to Section 501 of the Bankruptcy Code, (b) a Claim based on such
debt is allowed pursuant to Section 502 of the Bankruptcy Code or (c) the holder
of a Claim based on such debt has accepted the Plan, and (2) terminate all
Interests provided for by the Plan.
B. PRECLUSION. On the Confirmation Date, except as provided in the
Confirmation Order or the Plan, all persons and all entities shall be precluded
from asserting against the Debtor, any successor or assign of the Debtor or any
property of the Debtor any other or further Claim or any other or further
Interest based upon any action or omission of any kind that occurred prior to
the Confirmation Date. Except as provided in the Confirmation Order or the
Plan, the Confirmation Order shall be a judicial determination of discharge of
all of such Claims against the Debtor and termination of all of such Interests
pursuant to Section 524 and Section 1141 of the Bankruptcy Code and such
discharge shall void any judgment obtained against the Debtor at any time to the
extent that such judgment relates to a discharged Claim.
C. INJUNCTION. On the Confirmation Date, except as otherwise provided in
the Confirmation Order or the Plan, all persons and all entities that have held,
currently hold or may hold a Claim that is discharged or an Interest that is
terminated are permanently enjoined from taking any of the following actions on
account of any such discharged Claim or any such terminated Interest:
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(1) commencing or continuing any action or other proceeding against
the Debtor or the property of the Debtor;
(2) enforcing, attaching, collecting or recovering in any manner any
judgment, award, decree or order against the Debtor or the property of the
Debtor;
(3) creating, perfecting or enforcing any lien or any security
interest against the Debtor or the property of the Debtor;
(4) asserting a setoff, right of subrogation or recoupment of any kind
against any obligation due to the Debtor or the property of the Debtor; or
(5) commencing or continuing any action, in any manner, in any place
that does not comply with, or is inconsistent with, the Plan.
D. INSURED CLAIMS. Confirmation of the Plan shall not discharge the duty
of an Insurer under a contract of insurance to continue to provide coverage to
all parties covered under the contract of insurance in accordance with the terms
and subject to the conditions of the contract of insurance.
ARTICLE XII
RETENTION OF JURISDICTION
After the Effective Date and until the entry of a final decree closing
the Case, the Bankruptcy Court shall retain jurisdiction over the Case and any
proceedings arising from, or relating to, the Case to the fullest extent
permitted by the Bankruptcy Code and any other applicable law. Without limiting
the generality of the foregoing, the Bankruptcy Court shall retain the following
jurisdiction:
A. CLAIM DETERMINATIONS. The Bankruptcy Court shall retain the
jurisdiction to allow, to disallow, to liquidate, to classify, to estimate or to
determine the priority of any Claim (other than a non-Class 18 Claim for
personal injury or wrongful death) and to determine the validity and priority of
any lien or any security interest securing such Claim, including, without
limitation, the resolution of any request for payment of any Administrative
Claim and the resolution of any objection to Claims. The Bankruptcy Court shall
also retain the jurisdiction to hear avoidance actions.
B. COMPENSATION AND EXPENSE DETERMINATIONS. The Bankruptcy Court shall
retain the jurisdiction to grant or to deny any application for allowance of
compensation or reimbursement of expenses authorized to be paid pursuant to the
Bankruptcy Code or the Plan with respect to periods ending on or before the
Effective Date.
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C. EXECUTORY CONTRACT AND LEASE DETERMINATIONS. The Bankruptcy Court
shall retain the jurisdiction to decide or to resolve any motions pending before
the Bankruptcy Court on the Effective Date to assume, to assume and assign or to
reject any executory contract or unexpired lease to which the Debtor is a party
or with respect to which the Debtor may be liable and to hear, to determine and,
if necessary, to liquidate any Claim arising therefrom.
D. ASSURANCE OF DISTRIBUTIONS. The Bankruptcy Court shall retain the
jurisdiction to ensure that distributions to the holders of Allowed Claims and
Allowed Interests are accomplished in accordance with the Plan.
E. PENDING MOTIONS AND ADVERSARY PROCEEDINGS. The Bankruptcy Court shall
retain the jurisdiction to decide or to resolve any motion, to grant or to deny
any applications involving the Debtor, or to hear and determine any adversary
proceedings that are pending on the Effective Date or are subsequently filed
with the Bankruptcy Court.
F. IMPLEMENTATION OF THE PLAN. The Bankruptcy Court shall retain the
jurisdiction to enter such orders as may be appropriate or advisable to
consummate the Plan and any instrument or any other agreement created in
connection with, or contemplated by, the Plan.
G. RESOLUTION OF CONTROVERSIES. The Bankruptcy Court shall retain the
jurisdiction to resolve any controversy that may arise in connection with the
consummation, the interpretation or the enforcement of the Plan or the rights or
the obligations of any person or any entity under the Plan.
H. MODIFICATIONS. To the extent authorized by the Bankruptcy Code, the
Bankruptcy Court shall retain the jurisdiction to modify the Plan before
consummation of the Plan under Section 1127 of the Bankruptcy Code, to remedy
any defect or any omission and to reconcile any inconsistency in any order
entered by the Bankruptcy Court, the Plan and any instrument or any other
agreement created in connection with, or contemplated by, the Plan in such
manner as may be appropriate or advisable to consummate the Plan.
I. RESTRAINT OF INTERFERENCE. The Bankruptcy Court shall retain
jurisdiction to issue such orders as may be appropriate or advisable to restrain
interference by any person or any entity with the consummation or the
enforcement of the Plan.
J. MODIFICATION, STAY, REVERSAL, REVOCATION OR VACATION OF THE
CONFIRMATION ORDER. The Bankruptcy Court shall retain jurisdiction to enter
such orders as may be appropriate or advisable if the Confirmation Order is
modified, stayed, reversed, revoked or vacated for any reason.
K. AVOIDANCE AND PREFERENCE ACTIONS. The Bankruptcy Court will retain
jurisdiction to determine any avoidance and preference actions brought by the
Liquidation Committee subsequent to confirmation of the Plan.
35
<PAGE>
L. OTHER DETERMINATIONS. The Bankruptcy Court shall retain the
jurisdiction to determine any other matter arising out of, or in connection
with, the Confirmation, the Plan or any instrument or any other agreement
created in connection with, or contemplated by, the Plan.
M. RECOVERY OF ASSETS. The Bankruptcy Court shall retain the
jurisdiction to enter such orders as may be appropriate or advisable in
connection with the recovery of the assets of the Debtor and the Estate,
wherever located.
N. FINAL DECREE. The Bankruptcy Court shall retain the jurisdiction to
enter an order concluding the Case.
ARTICLE XIII
AVOIDANCE OF LIENS AND SECURITY
INTERESTS AND SUBORDINATION OF CLAIMS
A. EFFECT OF AVOIDANCE. If a Final Order is entered which provides that
a lien or a security interest securing a Claim is void, the Claim shall be
treated in accordance with Article III.
B. EFFECT OF EQUITABLE SUBORDINATION. If a Final Order which provides
that a Claim should be equitably subordinated to the Unsecured Claims, then the
Claim shall be treated in accordance with Article III.
C. PARTIAL AVOIDANCE OR EQUITABLE SUBORDINATION. To the extent that a
Claim is allowed in part as a Secured Claim and in part as an Unsecured Claim,
or equitably subordinated in part, or liens or security interest avoided in
part, then the Claim shall be treated in accordance with the portions of Article
III.
ARTICLE XIV
MISCELLANEOUS PROVISIONS
A. EXCULPATION. The Debtor and the directors, the officers, the
employee and the agents of the Debtor, and the members of the Liquidation
Committee, shall neither have, nor incur any liability to, any person or any
entity for any action taken or omitted to be taken in connection with the
formulation, the preparation, the dissemination, the confirmation or the
consummation of the Plan, the Disclosure Statement or any instrument or other
agreement created in connection with, or contemplated by, the Plan (except as
expressly provided by the Plan); provided, however, that this Article XIV(A)
shall have no effect on the liability of any person or any entity that would
otherwise result from any such action or any such omission to the extent that
any such action or omission is determined in a Final Order to have constituted
gross negligence or willful misconduct.
36
<PAGE>
B. MODIFICATION OF THE PLAN. The Debtor may, subject to Section 1127 of
the Bankruptcy Code, modify the Plan at any time and from time to time before
substantial consummation of the Plan.
C. REVOCATION OF THE PLAN. The Debtor may revoke or withdraw the Plan at
any time prior to the Confirmation Date. If the Debtor revokes or withdraws the
Plan prior to the Confirmation Date or if confirmation of the Plan does not
occur, the Plan shall be null and void and nothing contained in the Plan shall
(1) constitute a waiver or release of any Claims by or against, or any Interests
in, the Debtor or (2) prejudice in any manner the rights of the Debtor in any
further proceedings involving the Debtor.
D. PAYMENT OF POST-PETITION INTEREST OR ATTORNEY FEES. Unless otherwise
provided in the Plan, or allowed by order of the Bankruptcy Court, the Debtor
shall not be required to pay any holder of a Claim any post-petition interest or
attorneys' fees with respect to the Claim.
E. GOVERNING LAW. Except to the extent that the Bankruptcy Code or the
Bankruptcy Rules are applicable, the Plan shall be governed by, and construed
and interpreted in accordance with, the internal laws of the State of Oklahoma.
F. NOTICES. After the Effective Date, any notice or other communication
to the Debtor and/or the Liquidation Committee required or permitted under the
Plan shall be in writing and shall be hand delivered or sent by certified or
registered mail, postage pre-paid, return receipt requested, as follows:
TO THE DEBTOR AT THE FOLLOWING ADDRESS:
Freymiller Trucking, Inc.
c/o Judy Hamilton Morse
Crowe & Dunlevy
1800 Mid-America Tower
20 N. Broadway
Oklahoma City, OK 73102
Telephone: (405) 235-7759
Telecopy: (405) 239-6651
Attorneys for Debtor
with a copy to:
37
<PAGE>
Lucinda Dennis
Bronson, Bronson & McKinnon
444 South Flower Street, 24th Floor
Los Angeles, CA 90071-2925
Telephone: (213) 627-2000
Telecopy: (213) 627-2277
Attorneys for Liquidation Committee
TO THE LIQUIDATION COMMITTEE AT THE FOLLOWING ADDRESS:
Lucinda Dennis
Bronson, Bronson & McKinnon
444 South Flower Street, 24th Floor
Los Angeles, CA 90071-2925
Telephone: (213) 627-2000
Telecopy: (213) 627-2277
Attorneys for Liquidation Committee
After the Effective Date, any notice or other communication to a
holder of a Claim or an Interest required or permitted under the Plan shall be
hand delivered or shall be sent by certified or registered mail, postage
pre-paid, return receipt requested, to the holder at the address set forth on
any proof of claim filed by the holder or, if the holder has not filed or been
deemed to have filed a proof of claim, at the last known address of the holder
as reflected by the records of the Debtor.
A notice or other communication sent pursuant to this Article XIV(G)
shall be deemed given and received upon delivery if hand delivered and three
business days after deposited in the United States mail if sent by registered or
certified mail.
G. SUCCESSORS AND ASSIGNS. The rights of any person or any entity named
or referred to in this Plan shall inure to the benefit of, and the obligations
of any person or any entity named or referred to in this Plan shall be binding
on, any successor or assign of such person or such entity.
Dated this 13th day of December, 1995.
FREYMILLER TRUCKING, INC.
By: /s/RICHARD E. KUEHN
-----------------------------------
Richard E. Kuehn
Executive Vice President
38
<PAGE>
CROWE & DUNLEVY,
A Professional Corporation
By:/s/ JUDY HAMILTON MORSE
--------------------------------------
Judy Hamilton Morse, OBA #6450
Roger A. Stong, OBA #11710
David L. Nunn, OBA #14512
1800 Mid-America Tower
20 North Broadway
Oklahoma City, Oklahoma 73102
(405) 235-7700
ATTORNEYS FOR FREYMILLER TRUCKING,
INC.
39
<PAGE>
EXHIBIT 4
<PAGE>
FIRST AMENDMENT
TO
AMENDED AND RESTATED ARTICLES OF INCORPORATION
OF
FREYMILLER LIQUIDATING CORP.
(FORMERLY FREYMILLER TRUCKING, INC.)
Freymiller Liquidating Corp., formerly Freymiller
Trucking, Inc. ("Corporation"), hereby files this First Amendment
to Amended and Restated Articles of Incorporation ("First
Amendment") pursuant to Section 23-1-38-8 of the Indiana Business
Corporation Law.
1. The name of the Corporation prior to the filing of
this First Amendment is "Freymiller Trucking, Inc." Effective
upon the filing of this First Amendment, the name of the
Corporation is changed to "Freymiller Liquidating Corp."
2. The text of the amendments approved by the United
States Bankruptcy Court for the Western District of Oklahoma
("Bankruptcy Court") are set forth on EXHIBIT A.
3. The amendments were approved by order of the
Bankruptcy Court entered on January 8, 1996.
4. The title of the reorganization proceeding in
which the order was entered is IN RE FREYMILLER TRUCKING, INC.,
DEBTOR, Case No. 95-12095-BH, which is pending before the
Bankruptcy Court.
5. The Bankruptcy Court has jurisdiction over the
reorganization proceeding pursuant to the United States
Bankruptcy Code, a federal statute.
IN WITNESS WHEREOF, the undersigned has hereunto set
its hand this day of January, 1996.
Freymiller Liquidating Corp.
(formerly Freymiller Trucking,
Inc.)
By: /s/ Richard E. Kuehn
------------------------------
Richard E. Kuehn
Executive Vice President
<PAGE>
EXHIBIT A
1. Article I of the Amended and Restated Articles of
Incorporation is amended to read in its entirety as follows:
The name of the Corporation is Freymiller Liquidating Corp.
2. SECTION 5.1. Section 5.1 of the Amended and Restated Articles
of Incorporation is amended to read in its entirety as follows:
Section 5.1. AUTHORIZED CLASS AND NUMBER OF SHARES. The capital
stock of the Corporation shall be of one class and kind, which may be
referred to as common shares. The total number of shares which the
Corporation shall have the authority to issue shall be 10,000,000 shares
with a par value $0.01 per share.
All of the shares of capital stock issued prior to January ,
1996, have been cancelled by that certain First Amended Plan of
Reorganization of Freymiller Trucking, Inc., as amended, confirmed by
the United States Bankruptcy Court for the Western District of
Oklahoma on January 8, 1996.
The Corporation is prohibited from issuing any nonvoting equity
securities.
3. SECTION 5.2. Section 5.2 of the Articles of Incorporation
is amended to read in its entirety as follows:
Section 5.2. VOTING RIGHTS OF SHARES. The Corporation's shares
shall have unlimited voting rights and each outstanding share shall, when
validly issued by the Corporation, entitle the record holder thereof to one
vote at all shareholders' meetings on all matters submitted to a vote of the
shareholders of the Corporation.
<PAGE>
EXHIBIT 99.1
<PAGE>
EXHIBIT D
ESTIMATED RESULTS OF IMPLEMENTATION OF PLAN
<TABLE>
<S> <C> <C> <C>
PAYMENT FROM PURCHASER 2,475,989 (1)
ESTIMATED COSTS & EXPENSES FOR ORDINARY COURSE
ADMINISTRATIVE CLAIMS REQUIRED TO BE
PAID FROM PURCHASER'S PAYMENT:
Driver & Owner/Operator Pay 1,020,000
Office Payroll on Retained Employees 135,898
Health & Workers' Comp. Insurance 5,913
Employer Taxes on Payroll (est. at 8%) 43,512
Road Service Cost (Fuel, etc.) 43,750
Reported Unpaid Road & Fuel Taxes 33,000
Over the Road Cost (Pallets, etc.) 13,125
Building Rent 15,000
Communications, Utilities, etc. 25,000
Computer Lease 9,500
---------
Subtotal (1,344,698)
OTHER ADMINISTRATIVE CLAIMS & EXPENSES:
Estimated Professional Fees Over Retainers on
Effective Date 500,000
Equipment Leases 25,500
Employee Health Insurance 250,000
IBM Lease Payments 50,000
Unpaid and Unreported Road & Fuel Taxes 525,000
QualComm Post-Petition Equipment Use 120,000
Open Post-Petition Accounts Payable 667,000
---------
Subtotal (2,137,500)
----------
NET BEFORE OTHER CASH ASSETS TO BE LIQUIDATED (1,006,209)
</TABLE>
_______________________________
(1) This amount is subject to adjustment at closing on the Effective
Date. See Article I (A)(54) of the Plan.
<PAGE>
<TABLE>
<S> <C> <C> <C>
OTHER CASH ASSETS TO BE LIQUIDATED
Projected Collections of Accounts Receivable
Over Outstanding Line Balance to Norwest (2) 1,018,000
Rockwell Office lease Deposit (Bank IV) 177,500
Adriatic Insurance Own-Risk Insurance Deposit 96,000
----------
NET BEFORE OTHER ASSETS TO BE LIQUIDATED 285,291
OTHER ASSETS TO BE LIQUIDATED (ALL ESTIMATED): HIGH LOW
---- ---
Indiana Workers' Comp. Bond in Excess of Claims 200,000 100,000
Citation Workers' Comp. Litigation 600,000 240,000
Subrogation Claims 75,000 40,000
Shop Warranty Receivable 16,000 16,000
Bakersfield Property 800,000 200,000
Preference/Avoidance and Other Litigation Unknown Unknown
Claims ------- -------
Subtotal 1,691,000 596,000
ESTIMATED EXPENSES OF LIQUIDATION OF ALL OTHER ASSETS (100,000) (100,000)(3)
--------- --------
1,591,000 496,000
ESTIMATED NET TO CLASS 19 UNSECURED CREDITORS (LOW) 781,291
----------
----------
ESTIMATED NET TO CLASS 19 UNSECURED CREDITORS (HIGH) (4) 1,876,291
----------
----------
</TABLE>
_______________________________
(2) See accounts receivable liquidation analysis in Article X(D)(1) of the
Disclosure Statement.
(3) Because liquidation of these assets may involve litigation, the costs
of liquidation could significantly exceed this estimate.
(4) Estimate does not include possible preference/avoidance claim
recoveries. There can be no assurance that any recovery will be obtained on
such claims.
<PAGE>
EXHIBIT 99.2
<PAGE>
LIQUIDATION ANALYSIS
<TABLE>
<CAPTION>
ASSETS BOOK VALUE ESTIMATED
(unaudited 9/30/95) LIQUIDATION VALUE
- ---------------------------------------------------------------------
- ---------------------------------------------------------------------
<S> <C> <C>
Cash -0- -0-
- ---------------------------------------------------------------------
Receivables 5,509,000 4,958,000
- ---------------------------------------------------------------------
Revenue Equipment 16,531,000 9,341,0000
- ---------------------------------------------------------------------
Deposits 489,000 489,000
- ---------------------------------------------------------------------
Inventories 407,000 200,000
- ---------------------------------------------------------------------
Prepaid Expenses 468,000 50,000
- ---------------------------------------------------------------------
PP&E, Net 3,024,000 950,000
- ---------------------------------------------------------------------
Other Asssets, Net 3,683,000 2,250,000
- ---------------------------------------------------------------------
TOTAL ASSETS 30,111,000 18,238,000
- ---------------------------------------------------------------------
- ---------------------------------------------------------------------
Estimated Liquidation Value 18,238,000
- ---------------------------------------------------------------------
Estimated Cost of Liquidation -1,915,000
- ---------------------------------------------------------------------
Secured Claims -19,133,000
- ---------------------------------------------------------------------
TOTAL -2,810,000
- ---------------------------------------------------------------------
Post-Petition Wage Claims -565,000
- ---------------------------------------------------------------------
Post-Petition Tax Claims -0-
- ---------------------------------------------------------------------
Professional Fees -720,000
- ---------------------------------------------------------------------
Available for Unsecureds -4,095,000
- -------------------------------------------------------------------
</TABLE>
ESTIMATED RETURN FOR UNSECURED CREDITORS 0%
