<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
AMENDMENT NO. __
UNDER THE SECURITIES EXCHANGE ACT OF 1934
Walter Industries, Inc.
- --------------------------------------------------------------------------------
(NAME OF ISSUER)
Common Stock, par value $.01 per share
- --------------------------------------------------------------------------------
(TITLE OF CLASS OF SECURITIES)
93317 Q 10 5
- --------------------------------------------------------------------------------
(CUSIP NUMBER)
Gary P. Kreider, Esq.
Keating, Muething & Klekamp
One East Fourth Street, 18th Floor
Cincinnati, Ohio 45202
(513) 579-6411
- --------------------------------------------------------------------------------
(NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON
AUTHORIZED TO RECEIVE NOTICES AND COMMUNICATIONS)
May 30, 1997
- --------------------------------------------------------------------------------
(DATE OF EVENT WHICH REQUIRES FILING OF THIS STATEMENT)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box [ ].
Check the following box if a fee is being paid with this statement. [ ]
<PAGE> 2
CUSIP NO. 93317 Q 10 5 13D PAGE 2 OF 10 PAGES
1 NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
Asbestos Settlement Trust 59-3304089
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [ ]
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
Not Applicable
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEM 2(d) or 2(e) [ ]
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Florida
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF 10,941,326
SHARES --------------------------------------------------
BENEFICIALLY
OWNED BY 8 SHARED VOTING POWER
EACH --------------------------------------------------
REPORTING
PERSON WITH 9 SOLE DISPOSITIVE POWER
10,941,326
--------------------------------------------------
10 SHARED DISPOSITIVE POWER
--------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
10,941,326
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
19.9%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
OO
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE> 3
ITEM 1. SECURITY AND ISSUER.
This Schedule 13D relates to common stock, par value $.01 per
share, of Walter Industries, Inc., a Delaware corporation. The address of Walter
Industries is 1500 North Dale Mabry Highway, Tampa, Florida 33607.
ITEM 2. IDENTITY AND BACKGROUND.
ASBESTOS SETTLEMENT TRUST
(a) Asbestos Settlement Trust
(b) c/o Kevin E. Irwin, Keating, Muething & Klekamp,
1800 Provident Tower, One East Fourth Street,
Cincinnati, Ohio 45202
(c) The Trust was established May 31, 1997 to hold
assets for and process claims on behalf of
persons and properties incurring injury from
asbestos products. The establishment of the
Trust was pursuant to a Modified Joint Plan of
Reorganization under Chapter 11 of the United
States Bankruptcy Code for The Celotex
Corporation and Carey Canada Inc. in the United
States Bankruptcy Court for the Middle District
of Florida, Tampa Division.
(d) Not Applicable.
(e) Not Applicable.
(f) Florida
TRUSTEE
(a) Frank Andrews
(b) 4315 Lovers Lane, Dallas, Texas 75209
(c) Frank Andrews was born October 23, 1947 in
Houston, Texas. He earned a Bachelor of Arts
degree in 1971 from the University of Texas at
Austin and received a law degree from Southern
Methodist University in 1974. He practiced law
with the Dallas, Texas law firm of Scott and
Andrews from 1974 through 1986. He then became a
Texas District Judge for the 116th District
Court for Dallas County, Texas serving from
January 1, 1987 through July 7, 1996. Judge
Andrews served on the Tort Claimants' Creditors'
Committee in the A.H. Robins bankruptcy case and
was the pre-trial judge from 1992 to 1996 for
the Dallas County Consolidated Silicone
- 3 -
<PAGE> 4
Gel Breast Implant Litigation. He is also a
frequent speaker and author on various topics.
(d) Frank Andrews, during the last five years, has
not been convicted in a criminal proceeding
(excluding traffic violations or similar
misdemeanors).
(e) Frank Andrews, during the last five years, has
not been a party to a civil proceeding of a
judicial or administrative body of competent
jurisdiction which resulted in Mr. Andrews being
at any time subject to a judgment, decree or
final order enjoining future violations of, or
prohibiting or mandating activities subject to,
federal or state securities laws or finding any
violation with respect to such laws.
TRUSTEE
(a) John H. Laeri, Jr.
(b) Meadowcroft Associates, Inc., 9 Burr Road,
Westport, Connecticut 06880- 4220
(c) John H. Laeri, Jr. is the Chairman and a
Managing Director of MAI. He spent 32 years on
Wall Street before founding MAI and has been
involved in all phases of investment banking
including research, capital raising, mergers and
acquisitions and corporate reorganizations. He
has served as Managing Director of The First
Boston Corporation and Vice Chairman of
Donaldson, Lufkin & Jenrette. He is a graduate
of Williams College and served in the United
States Marine Corps Reserve for six years. In
early 1982, Mr. Laeri established the
reorganization group at The First Boston
Corporation and built it into the largest such
group on Wall Street. From 1982 to 1990, the
reorganization group, which specializes in
advising corporate debtors and creditors in
restructuring financial obligations and in
reorganizing entities that have filed for
bankruptcy, handled more than 60 restructuring
assignments. Mr. Laeri is currently Chairman of
the UNR Asbestos-Disease Claims Trust. The Trust
was established as part of a reorganization plan
under which UNR Industries, Inc. (a
publicly-traded, Chicago-based
telecommunications company) emerged from
bankruptcy in 1989.
(d) John Laeri, Jr., during the last five years, has
not been convicted in a criminal proceeding
(excluding traffic violations or similar
misdemeanors).
(e) John Laeri, Jr., during the last five years, has
not been a party to a civil proceeding of a
judicial or administrative body of competent
jurisdiction which resulted in Mr. Laeri being
at any time subject to a judgment, decree
- 4 -
<PAGE> 5
or final order enjoining future violations of,
or prohibiting or mandating activities subject
to, federal or state securities laws or finding
any violation with respect to such laws.
(f) United States citizen.
TRUSTEE
(a) Francis E. McGovern
(b) Duke University School of Law, Box 90360,
Towerview Road and Science Drive, Durham, North
Carolina 27708-0360
(c) Francis E. McGovern was born November 4, 1945 in
Charlottesville, Virginia. He received his
Bachelor of Arts degree from Yale University in
1967 and his law degree in 1973 from the
University of Virginia. From 1968 through 1971,
he served in the United States Marine Corps and
held the rank of Captain. Professor McGovern is
the present Francis H. Hare Professor of Torts
at The University of Alabama School of Law.
Following four years in private practice with
the Houston, Texas law firm of Vinson & Elkins,
Professor McGovern served as a professor and
Associate Dean of Cumberland School of Law in
Birmingham, Alabama. He joined the faculty of
The University of Alabama in 1985 and has served
as visiting professor at Boston University
School of Law, Massachusetts Institute of
Technology, Duke University School of Law and
the University of Fribourg (Switzerland).
Professor McGovern holds a number of advisory
and leadership positions in various legal
organizations and is an accomplished writer,
having published several dozen articles and
books principally concerning complex litigation
matters and issues related to mass torts.
Professor McGovern has served as special master,
court expert or neutral in numerous high-profile
cases including the bankruptcy cases involving
A.H. Robins, Johns-Manville, National Gypsum and
UNR.
(d) Francis E. McGovern, during the last five years,
has not been convicted in a criminal proceeding
(excluding traffic violations or similar
misdemeanors).
(e) Francis E. McGovern, during the last five years,
has not been a party to a civil proceeding of a
judicial or administrative body of competent
jurisdiction which resulted in Mr. McGovern
being at any time subject to a judgment, decree
or final order enjoining future violations of,
or prohibiting or mandating activities subject
to, federal or state securities laws or finding
any violation with respect to such laws.
(f) United States citizen.
- 5 -
<PAGE> 6
TRUSTEE
(a) Sharon M. Meadows
(b) 356 West Road, New Canaan, Connecticut 06840
(c) Sharon M. Meadows received her Bachelor of Arts
degree in June, 1974 from Wayne State University
of Detroit, Michigan. Ms Meadows earned a
Masters Degree in Business Administration in
May, 1976, from the University of Michigan
Graduate School of Business Administration. From
1976 to 1983, Ms. Meadows was employed by
Citibank, N.A. in New York serving as an Account
Manager in the Real Estate Industries Division
and as Vice President for Institutional Recovery
Management. From 1983 to 1994, Ms. Meadows was
employed by CS First Boston Corporation in New
York. Ms. Meadows' responsibilities at First
Boston included heading a 20 member group that
provided financial advisory services to troubled
companies and their creditors. Ms. Meadows also
served as Managing Director of First Boston's
Structured Finance Group where she was the
co-head of a 40 person group responsible for
financing non-investment grade clients in the
high yield market. Since 1994, Ms. Meadows has
served as director of the Stillwater Mining
Company, a $400 million NASDAQ-listed platinum
mining company in Denver, Colorado. She is also
a director of The Gladney Fund in Fort Worth,
Texas. The Gladney Fund is a multi-million
dollar fund responsible for financing the
activities of a large Texas not-for-profit
organization dedicated to assisting young women
with problem pregnancies.
(d) Sharon M. Meadows, during the last five years,
has not been convicted in a criminal proceeding
(excluding traffic violations or similar
misdemeanors).
(e) Sharon M. Meadows, during the last five years,
has not been a party to a civil proceeding of a
judicial or administrative body of competent
jurisdiction which resulted in Ms. Meadows being
at any time subject to a judgment, decree or
final order enjoining future violations of, or
prohibiting or mandating activities subject to,
federal or state securities laws or finding any
violation with respect to such laws.
(f) United States citizen.
- 6 -
<PAGE> 7
TRUSTEE
(a) James W. Stevens
(b) Sixth Floor, 450 Park Avenue, New York, New York
10122
(c) James W. Stevens received his Bachelor of Arts
degree in 1958 from Williams College in
Williamstown, Massachusetts. He earned his
M.B.A. in Banking and Finance with distinction
from New York University in 1964. Mr. Stevens
joined First National City Bank, New York (now
known as Citicorp/Citibank) in June, 1958 and
served as a Vice President from 1967- 1969. In
September, 1969, he joined George T. Weymouth
and Family in Wilmington, Delaware where he
served as President of Six Plus, Inc., a
Weymouth/Hobbs family holding company and
Executive Vice President of Laird, Inc. In
November, 1974, Mr. Stevens joined
Citicorp/Citibank, New York, New York and worked
in a variety of management positions, including
Senior Vice President in charge of money market
division, in charge of underwriting and
distribution of federal, state and municipal
securities; Senior Corporate Officer for Europe
and South Africa; Group Executive, Capital
Markets Group, responsible for Western
Hemisphere merchant banking and investment
management activities; and Chairman of Citicorp
Venture Capital. In April, 1985, Mr. Stevens
joined Dillon Reed & Co., Inc. in New York as
Managing Director. In October, 1987, Mr. Stevens
joined Prudential Insurance Company of America
where he served as Executive Vice President,
Chairman and CEO from August of 1993 to December
of 1994. Mr. Stevens presently serves as a
director or trustee of numerous corporate and
charitable organizations.
(d) James W. Stevens, during the last five years,
has not been convicted in a criminal proceeding
(excluding traffic violations or similar
misdemeanors).
(e) James W. Stevens, during the last five years,
has not been a party to a civil proceeding of a
judicial or administrative body of competent
jurisdiction which resulted in Mr. Stevens being
at any time subject to a judgment, decree or
final order enjoining future violations of, or
prohibiting or mandating activities subject to,
federal or state securities laws or finding any
violation with respect to such laws.
(f) United States citizen.
John H. Laeri, Jr. was elected Executive Director of the Trust
pursuant to its bylaws. The Trust expects to elect additional officers.
- 7 -
<PAGE> 8
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
Walter Industries, Inc., formerly known as Hillsborough Holdings
Corporation, filed for reorganization under Chapter 11 of the Bankruptcy Code in
the United States Bankruptcy Court for the Middle District of Florida, Tampa
Division on December 27, 1989. Walter Industries was named as co-defendant with
The Celotex Corporation in lawsuits seeking damages for asbestos injuries.
During the course of that bankruptcy, litigation ensued as to whether the
corporate veil between Celotex and Walter Industries, which was the parent of
Celotex for a period prior to filing of the two bankruptcies, should be pierced
with the effect of providing liability against the Walter Industries bankruptcy
estate for all claims against Celotex. These matters were settled in 1995
through the transfer of cash, debt securities of Walter Industries, since
redeemed, and 10,941,326 shares of Walter Industries Common Stock to a
settlement fund account. The account was established pursuant to an escrow order
of the Bankruptcy Court. Upon closing of the Plan of Reorganization of Celotex
on May 30, 1997, the Asbestos Settlement Trust was funded and assumed control of
the settlement fund, including the 10,941,326 shares of Common Stock of Walter
Industries.
ITEM 4. PURPOSE OF TRANSACTION.
The purpose of the Trust is to assume the liabilities of The
Celotex Corporation and Carey Canada Inc. arising from or relating to asbestos
claims and utilize the Trust assets and income to pay holders of allowed
asbestos claims. This purpose extends to the Walter Industries Common Stock held
by the Trust.
None of the Trustees are directors or officers of Walter
Industries and the Trust and the Trustees do not participate in the management
of Walter Industries.
The Trust has no plans to sell or purchase any of the Common
Stock of Walter Industries. However, its plans in this regard could change
depending upon various factors, such as the price of the Common Stock, the
extent of the Trust's holdings, its availability of funds and the benefit of any
such transaction to the Trust.
Other than as stated above, the Trust has no plans or proposals
which relate to or would result in:
(a) The acquisition by any person of additional
securities of Walter Industries, or the
disposition of securities of Walter Industries;
(b) An extraordinary corporate transaction, such as
a merger, reorganization or liquidation,
involving Walter Industries or any of its
subsidiaries;
(c) A sale or transfer of a material amount of
assets of Walter Industries or of any of its
subsidiaries;
- 8 -
<PAGE> 9
(d) Any change in the present board of directors or
management of Walter Industries, including any
plans or proposals to change the number or term
of directors or to fill any existing vacancies
on the board;
(e) Any material change in the present
capitalization or dividend policy of Walter
Industries;
(f) Any other material change in Walter Industries's
business or corporate structure;
(g) Changes in Walter Industries's charter, bylaws
or instruments corresponding thereto or other
actions which may impede the acquisition of
control of Walter Industries by any person;
(h) Causing a class of securities of Walter
Industries to be delisted from a national
securities exchange or to cease to be authorized
to be quoted in an inter-dealer quotation system
of a registered national securities association;
(i) A class of equity securities of Walter
Industries becoming eligible for termination of
registration pursuant to Section 12(g)(4) of the
Securities Act of 1934; or
(j) Any action similar to any of those enumerated
above.
ITEM 5. INTEREST IN SECURITIES OF ISSUER.
The Trust is the beneficial owner of 10,941,326 shares of Common
Stock of Walter Industries which constitutes 19.9% of such stock outstanding
based on the Issuer's Form 10-Q for the quarter ended February 28, 1997.
The Trust has the sole power to vote and dispose of the Common
Stock. None of the Trustees individually owns any of the Common Stock.
Except as reported above, neither the Trust nor any of the
Trustees has effected any transactions in Walter Industries Common Stock during
the past 60 days.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH
RESPECT TO SECURITIES OF THE ISSUER.
The Trust is bound by a Stockholders' Agreement between Walter
Industries, Inc. and The Celotex Corporation, in its capacity as the Celotex
Settlement Fund Recipient, dated March 17, 1995. That Agreement requires the
Trust to vote its Walter Industries stock in proportion to the votes cast by the
other holders of that stock. The Trust is required to be present, in person or
by proxy, at all meetings so that its stock may be counted for the purpose of
determining a
- 9 -
<PAGE> 10
quorum. These provisions apply to any other voting securities of Walter
Industries acquired by the Trust as a result of its ownership of that stock,
whether by reason of reclassification, split or similar action. The Trust may
not sell, give, assign, hypothecate, grant a security interest in or otherwise
dispose of that stock to a beneficiary of the Trust or a creditor of Celotex
unless that person agrees to be bound by these terms.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
1. Trust Agreement executed May 31, 1997
2. Modified Joint Plan of Reorganization under Chapter 11 of
the United States Bankruptcy Code for the Celotex
Corporation and Carey Canada Inc.
3. Stockholders' Agreement between Walter Industries, Inc.
and The Celotex Corporation, in its capacity as the
Celotex Settlement Fund Recipient dated March 17, 1995.
4. Power of Attorney.
ASBESTOS SETTLEMENT TRUST
Dated: June 9, 1997 BY:/s/John H. Laeri, Jr.
-----------------------------------------
John H. Laeri, Jr., Executive Director
- 10 -
<PAGE> 1
CLOSING BINDER INDEX TAB NO. _____
ASBESTOS SETTLEMENT TRUST AGREEMENT
This Settlement Trust Agreement (the "TRUST AGREEMENT"),
dated the date set forth on the signature page hereof and effective as of
Confirmation, is among The Celotex Corporation, a Delaware corporation, a
debtor and debtor-in-possession in case number 90- 10016-8B1 in the United
States Bankruptcy Court for the Middle District of Florida, Tampa Division
("CELOTEX"), and Carey Canada Inc., a Canadian corporation, a debtor and
debtor-in-possession in case number 90-10017-8B1 in the United States
Bankruptcy Court for the Middle District of Florida, Tampa Division ("CAREY
CANADA") (Celotex and Carey Canada are sometimes referred to herein
individually as a "DEBTOR" and collectively as the "DEBTORS"), as settlors
(sometimes collectively referred to as the "SETTLORS"), the Legal
Representative, the individual trustees identified on the signature page hereof
and appointed at Confirmation (the "TRUSTEES"), pursuant to the Modified Joint
Plan of Reorganization Under Chapter 11 of the United States Bankruptcy Code
for The Celotex Corporation and Carey Canada Inc. dated as of October 7, 1996
(the "PLAN"), as such Plan may be amended, modified or supple mented from time
to time.
WHEREAS, at the time of the entry of the order for relief in
the Chapter 11 Cases, Celotex and Carey Canada were named as defendants in
personal injury, wrongful death, and property damage actions seeking recovery
for damages allegedly caused by the presence of, or exposure to, asbestos or
asbestos-containing products; and
WHEREAS, the Debtors have reorganized under the provisions of
Chapter 11 of the Bankruptcy Code in cases pending in the United States
Bankruptcy Court for the Middle District of Florida known as In the Matter of
Celotex Corporation, et al. Chapter 11, Consolidated Case Nos. 90-10016-8B1 and
90-10017-8B1; and
WHEREAS, the Plan, filed by the Debtors, the Legal
Representative for Unknown Claimants (the "LEGAL REPRESENTATIVE"), the Asbestos
Health Claimants' Committee (the "INJURY CLAIMANTS' COMMITTEE") and the Trade
Creditors' Committee (the "TRADE CREDITORS' COMMITTEE") and consented to by the
Asbestos Property Damage Claimants' Committee (the "PD COMMITTEE") has been
confirmed by the Bankruptcy Court; and
WHEREAS, the Plan provides, inter alia, for the creation of
the Asbestos Settlement Trust ("TRUST"); and
WHEREAS, pursuant to an order of the Bankruptcy Court, dated
March 30, 1995, a segregated custodial account was established to receive and
hold the Veil Piercing Settlement Fund, and such Settlement Account was
established as a qualified
<PAGE> 2
CLOSING BINDER INDEX TAB NO. _____
settlement fund within the meaning of Section 468B of the IRC and Treasury
Regulation Section 1.468B-1, et seq.; and
WHEREAS, the Plan contemplates that the Settlement Account
will constitute a trust account under this Trust Agreement and that the
Settlement Account, as supplemented by the contribution of additional assets
under the Plan, will be used to pay and satisfy all Asbestos Personal Injury
Claims and Asbestos Property Damage Claims (the "ASBESTOS CLAIMS"); and
WHEREAS, pursuant to the Plan, the Trust is to use its assets
and income to pay Asbestos Claims, as defined in the Plan, against the Debtors;
and
WHEREAS, pursuant to the Plan, the Trust is intended to
qualify as a "Qualified Settlement Fund" within the meaning of Section 1.468B-1
of the Treasury Regulations promulgated under Section 468B of the Internal
Revenue Code; and
WHEREAS, it is the intent of the Settlors, the Trustees, the
Legal Representative and the other parties that the Trust be administered,
maintained and operated at all times as a Qualified Settlement Fund through
mechanisms that provide reasonable assurance that the Trust will value, and be
in a financial position to pay, Asbestos Claims and Demands that involve
similar claims in substantially the same manner, in strict compliance with the
terms of this Trust Agreement; and
WHEREAS, the Plan provides, among other things, for the
complete treatment of all liabilities and obligations of the Debtors with
respect to Asbestos Claims; and
WHEREAS, the Bankruptcy Court has determined that the Trust
and the Plan satisfy all the prerequisites for the Injunctions, including the
injunctions pursuant to Section 524(g) of the Bankruptcy Code, (collectively
the "ASBESTOS PERMANENT CHANNELING INJUNCTION"), which Asbestos Permanent
Channeling Injunction has been entered in connection with the Confirmation
Order confirming the Plan;
NOW, THEREFORE, it is hereby agreed as follows:
ARTICLE 1
DEFINITIONS
All capitalized terms used herein and not defined in this
Article 1 or in another provision of this Trust Agreement shall have the
meanings assigned to them in the Plan, or the APDCRP, which definitions are
incorporated herein by reference. All
- 2 -
<PAGE> 3
CLOSING BINDER INDEX TAB NO. _____
capitalized terms not defined herein or defined in the Plan, but defined in the
Bankruptcy Code, shall have the meanings ascribed to them by the Bankruptcy
Code, which definitions are incorporated herein by reference. All capitalized
terms used herein and not defined herein, in the Plan or in the Bankruptcy
Code, but which are defined in the Asbestos Claims Resolution Procedures shall
have the meanings ascribed to them in the Asbestos Claims Resolution
Procedures.
1.1 LEGAL REPRESENTATIVE. The Legal Representative shall be
David S. Shrager, Esquire or his successor chosen pursuant to Article 6.2.
1.2 PDCA. The Property Damage Claims Administrator ("PDCA")
shall be an individual selected by the PD Committee and shall be the officer
responsible for implementation of the Asbestos Property Damage Claims
Resolution Procedures ("APDCRP") (attached as Annex C) and day-to-day
processing of Asbestos Property Damage Claims ("PD CLAIMS").
1.3 THE REPRESENTATIVE INDIRECT ASBESTOS CLAIMANT. The
Representative Indirect Asbestos Claimant identified in Section IX of the
APICRP (as hereinafter defined) shall be Anne Cohen. The Trustees shall provide
the Representative Indirect Asbestos Claimant with such notices and
information, and shall communicate with the Representative Indirect Asbestos
Claimant, as is required by Section IX of the APICRP (as hereinafter defined).
1.4 UNKNOWN ASBESTOS PERSONAL INJURY CLAIMANTS. Unknown
Asbestos Personal Injury Claimants means all Entities who, after the
Confirmation Date, may in the future assert an Asbestos Personal Injury Claim,
so long as such Asbestos Personal Injury Claim has not previously been
asserted.
ARTICLE 2
AGREEMENT OF TRUST
2.1 CREATION AND NAME. The Settlors hereby create a trust
known as the "Asbestos Settlement Trust" ("AST"), which is the Trust provided
for and referred to in the Plan. The Trustees of the Trust may transact the
business and affairs of the Trust in the name, "Asbestos Settlement Trust."
2.2 PURPOSE. The purpose of the Trust is to assume the
liabilities of the Debtors, their successors in interest and their affiliates,
arising from or relating to Asbestos Claims and to use the Trust's assets and
income to pay holders of Allowed Asbestos Claims in accordance with the Trust
Agreement and in such a way that all holders of similar Asbestos Personal
Injury Claims are each treated in a substantially equivalent manner and all
holders
- 3 -
<PAGE> 4
CLOSING BINDER INDEX TAB NO. _____
of Allowed PD Claims are each to be paid in substantially the same manner as
Allowed Asbestos Personal Injury Claims; and to otherwise comply in all
respects with the requirements of a trust set forth in Section 524(g)(2)(B)(i)
of the Bankruptcy Code.
2.3 TRANSFER OF ASSETS. The Settlors pursuant to the Plan
have transferred and assigned to the Trust the property set forth in Article 5
of the Plan (herein the "ASSETS" or "TRUST ASSETS"). The Settlors shall execute
and deliver such documents as the Trustees reasonably deem necessary to
transfer and assign the property.
2.4 ACCEPTANCE OF ASSETS AND ASSUMPTION OF LIABILITIES.
(a) In furtherance of the purposes of the Trust, the
Trustees, on behalf of the Trust, hereby expressly accept the transfer and
assignment to the Trust of the Trust Assets in the time and manner as
contemplated in the Plan.
(b) In furtherance of the purposes of the Trust, the
Trustees, on behalf of the Trust, expressly assume all liability for all
Asbestos Claims. Except as otherwise provided in the Asbestos Personal Injury
Claims Resolution Procedures ("APICRP"), and the APDCRP (collectively the
"CRP"), the Trust or the PDCA, as the case may be, shall have all defenses,
cross- claims, offsets, and recoupments regarding Asbestos Claims that Celotex
has or would have had under applicable law; provided, however, that with
respect to Indirect Asbestos Claims asserted under theories of contribution (as
opposed to indemnification) governed by Section IX of the APICRP the Trust
shall not assert defenses based upon 11 U.S.C. Section 502(e).
(c) The Debtors and their successors in interest or their
affiliates shall be entitled to indemnification from the Trust for any
expenses, costs, and fees (including attorneys' fees and costs), judgments,
settlements, or other liabilities arising from or incurred in connection with,
any action, related to an Asbestos Claim, including, but not limited to,
indemnification or contribution for Asbestos Claims prosecuted against
Reorganized Celotex. Nothing in this section or any other section of this Trust
Agreement shall be construed in any way to limit the scope, enforceability, or
effectiveness of the Asbestos Permanent Channeling Injunction issued in
connection with the Plan or the Trust's assumption of all liability with
respect to Asbestos Claims.
- 4 -
<PAGE> 5
CLOSING BINDER INDEX TAB NO. _____
ARTICLE 3
POWERS AND TRUST ADMINISTRATION
3.1 POWERS.
(a) The Trustees are and shall act as fiduciaries to the
Trust in accordance with the provisions of this Trust Agreement and the Plan.
The Trustees shall, at all times, administer the Trust and the Trust Assets in
a manner consistent with 11 U.S.C. Section 524(g) to provide reasonable
assurance that the Trust will value, and be in a financial position to pay,
Asbestos Claims and Demands that involve similar claims in substantially the
same manner and to maximize the value of the Trust Assets. Subject to the
limitations set forth in this Trust Agreement, the Trustees shall have the power
to take any and all actions that, in the judgment of the Trustees, are necessary
or proper to fulfill the purposes of the Trust, including, without limitation,
each power expressly granted in this Article 3.1, any power reasonably
incidental thereto, and any trust power now or hereafter permitted under the
laws of the State of Florida.
(b) Except as otherwise specified herein, the Trustees
need not obtain the order or approval of any Court in the exercise of any power
or discretion conferred hereunder.
(c) Without limiting the generality of Article 3.1(a)
above, the Trustees shall have the power to:
(i) receive and hold the Trust Assets, vote the
Reorganized Celotex Common Stock, exercise all rights with respect to, and sell
any securities issued by Reorganized Celotex that are included in the Trust
Assets, subject to any restrictions set forth in the articles of incorporation
of Reorganized Celotex;
(ii) invest the monies held from time to time by the
Trust;
(iii) sell, transfer, or exchange any or all of the
Trust Assets at such prices and upon such terms as they may consider proper,
consistent with the other terms of this Trust Agreement;
(iv) pay liabilities and expenses of the Trust,
including, but not limited to, Trust Expenses;
(v) establish such funds, reserves and accounts
within the Trust estate, as deemed by the Trustees to be useful in carrying out
the purposes of the Trust;
- 5 -
<PAGE> 6
CLOSING BINDER INDEX TAB NO. _____
(vi) sue and be sued and participate, as a party or
otherwise, in any judicial, administrative, arbitrative or other proceeding;
(vii) amend the Bylaws, a copy of which is annexed
hereto as Annex A (the "BYLAWS");
(viii) establish, supervise and administer the Trust
in accordance with the CRP and to administer, amend, supplement or modify the
APICRP;
(ix) appoint such officers and hire such employees
and engage such legal, financial, accounting, investment, auditing and
forecasting and other consultants or alternative dispute resolution panelists,
and agents as the business of the Trust requires, and to delegate to such
persons such powers and authorities as the fiduciary duties of the Trustees
permit and as the Trustees, in their discretion, deem advisable or necessary in
order to carry out the terms of this Trust;
(x) pay employees, legal, financial, accounting,
investment, auditing and forecasting, and other consultants, advisors and
agents reasonable compensation, including without limitation, compensation at
rates approved by the Trustees for services rendered prior to the execution
hereof;
(xi) compensate the Trustees, the disinterested
members of the Trust Advisory Committee (the "TAC"), the PDCA, the
disinterested members of the PD Advisory Committee, the Legal Representative,
and their employees, legal, financial, accounting, investment and other
advisors, consultants and agents and reimburse to them all reasonable
out-of-pocket costs and expenses incurred by such persons in connection with
the performance of their duties hereunder, including without limitation costs
and expenses incurred prior to the execution hereof; notwithstanding anything
contained in this Trust Agreement to the contrary, any increase in such
compensation or reimbursement, prior to becoming effective, must be filed with
and approved by the Bankruptcy Court;
(xii) execute and deliver such instruments as the
Trustees consider proper in administering the Trust;
(xiii) enter into such other arrangements with third
parties as are deemed by the Trustees to be useful in carrying out the purposes
of the Trust, provided such arrangements do not conflict with any other
provision of this Trust Agreement;
(xiv) in accordance with Article 5.6 indemnify (and
purchase insurance indemnifying) the Trustees, the Legal Representative, the
TAC, the PDCA, the PD Advisory Committee, the Debtors, Reorganized Celotex and
Reorganized Carey Canada and members, officers, employees, agents, advisors and
representatives of the Trust, the Legal Representative, the TAC, the PDCA, the
PD
- 6 -
<PAGE> 7
CLOSING BINDER INDEX TAB NO. _____
Advisory Committee, the Debtors, Reorganized Celotex and Reorganized Carey
Canada to the fullest extent that a corporation or trust organized under the
law of the Trust's situs is from time to time entitled to indemnify and/or
insure its directors, trustees, officers, employees, agents, advisors and
representatives;
(xv) delegate any or all of the authority herein
conferred with respect to the investment of all or any portion of the Trust
Assets to any one or more reputable individuals or recognized institutional
investment advisors or investment managers without liability for any action
taken or omission made because of any such delegation, except as provided in
Article 5.4;
(xvi) consult with Reorganized Celotex at such times
and with respect to such issues relating to the conduct of the Trust as the
Trustees consider desirable;
(xvii) make, pursue (by litigation or otherwise),
collect, compromise or settle any claim, right, action or cause of action
included in the Trust Assets; provided that settlement of actions before the
Bankruptcy Court require the approval of the Bankruptcy Court after notice to
Reorganized Celotex; and
(xviii) merge or contract with other claims
resolution facilities that are not specifically created by this Agreement, the
APICRP or APDCRP (as to the APDCRP, subject to the consent of the PDCA);
provided that such merger or contract shall not (a) subject the Reorganized
Debtors or any successor in interest to any risk of having any Asbestos Claim
asserted against it or them, or (b) otherwise jeopardize the validity or
enforceability of the Asbestos Permanent Channeling Injunction.
(d) The Trustees shall not have the power to guaranty any
debt of other Persons.
(e) The Trustees shall give the Approving Entities prompt
notice of any act performed or taken pursuant to Article 3.1(c)(i), (ii),
(iii), (v), (vi), (vii), (viii), (xv), (xvii), (xviii) and Article 3.2(f).
3.2 GENERAL ADMINISTRATION.
(a) The Trustees shall act in accordance with the Bylaws.
To the extent not inconsistent with the terms of this Trust Agreement, the
Bylaws govern the affairs of the Trust. In the event of an inconsistency
between the Bylaws and this Trust Agreement, the latter shall govern.
(b) The Trustees shall timely file such income tax and
other returns and statements and comply with all withholding obligations, as
required under the applicable provisions of the
- 7 -
<PAGE> 8
CLOSING BINDER INDEX TAB NO. _____
Internal Revenue Code and of any state law and the regulations promulgated
thereunder and shall timely pay all taxes required to be paid.
(c) (i) The Trustees shall cause to be prepared and filed
with the Bankruptcy Court, as soon as available, and in any event within one
hundred and twenty (120) days following the end of each fiscal year, an annual
report containing financial statements of the Trust (including, without
limitation, a balance sheet of the Trust as of the end of such fiscal year and
a statement of operations for such fiscal year) audited by a firm of
independent certified public accountants selected by the Trustees and
accompanied by an opinion of such firm as to the fairness of the financial
statements' presentation of the cash and investments available for the payment
of claims and as to the conformity of the financial statements with generally
accepted accounting principles. The Trustees shall provide a copy of such
report to the TAC, the Legal Representative, the PDCA, the PD Advisory
Committee (collectively, the "APPROVING ENTITIES") and Reorganized Celotex when
such reports are filed with the Bankruptcy Court.
(ii) Simultaneously with delivery of each set of
financial statements referred to in Article 3.2(c)(i) above, the Trustees shall
cause to be prepared and filed with the Bankruptcy Court a report containing a
summary regarding the number and type of claims disposed of during the period
covered by the financial statements. The Trustees shall provide a copy of such
report to the Approving Entities and Reorganized Celotex when such report is
filed.
(iii)All materials required to be filed with the
Bankruptcy Court by this Article 3.2(c) shall be available for inspection by
the public in accordance with procedures established by the Bankruptcy Court
and shall be filed with the Office of the United States Trustee for the Middle
District of Florida.
(d) The Trustees, with the input of the PDCA with respect
to the administration of the APDCRP, shall cause to be prepared as soon as
practicable prior to the commencement of each fiscal year a budget and cash
flow projections covering such fiscal year and the succeeding four fiscal
years. The Trustees shall provide a copy of the budget and cash flow to the
Approving Entities and Reorganized Celotex.
(e) The Trustees shall consult with (i) the TAC and the
Legal Representative on the implementation and administration of the APICRP
(attached as Annex B); (ii) without limiting or abridging Article 3.3(c), the
PDCA and the PD Advisory Committee on the implementation and administration of
the APDCRP; and (iii) each of the foregoing entities on the implementation and
administration of the Trust.
- 8 -
<PAGE> 9
CLOSING BINDER INDEX TAB NO. _____
(f) The Trustees shall be required to obtain the consent
of the TAC and the consent of the Legal Representative, in addition to those
instances elsewhere enumerated, in order:
(i) to add to or change the schedule of Asbestos
Related Disease Categories or Values or criteria, pursuant to Articles 5.1(c)
and 5.4(m) of the APICRP; or
(ii) to merge or participate in the handling of
bodily injury claims with any claims resolution facility that was not
specifically created under this Trust Agreement or the APICRP; or
(iii) to amend any provision of the Trust Agreement,
the By-Laws or the APICRP; or
(iv) to terminate the Trust pursuant to Article 9.2
herein; or
(v) to terminate discounted cash payments or change
the amounts, requirements or procedures for future discounted cash payments
pursuant to Article 5.3 of the APICRP; or
(vi) to reduce the number of Trustees and to appoint
successor Trustees.
(g) Issues Raised By The Approving Entities. The
Trustees, upon notice from any of the Approving Entities, shall at their next
regular meeting or, if appropriate, at a specially called meeting, place on
their agenda and consider issues requested by such Approving Entity.
3.3 CLAIMS ADMINISTRATION.
(a) General Principles.
The Trustees shall promptly proceed to implement the
CRP. Because the terms of the APICRP and the APDCRP differ, payments might not
be paid simultaneously to holders of Asbestos Personal Injury Claims and PD
Claims. However, the Trustees shall promptly pay both Asbestos Personal Injury
Claims and PD Claims under the terms of both the APICRP and the APDCRP, as
applicable, and shall not give preference in timing nor advance or delay
payments to either Asbestos Personal Injury Claim holders or PD Claim holders
relative to the other. Notwithstanding anything to the contrary in the CRP, the
Trustees may accelerate the liquidation and Allowance (but not payment) of a
Claim under the CRP where such Claimant demonstrates that the Claimant has a
trial date on a court docket for a trial on claims related to the Claimant's
Asbestos Claim.
- 9 -
<PAGE> 10
CLOSING BINDER INDEX TAB NO. _____
(b) Asbestos Claims.
(i) The Trustees shall favor settlement over
arbitration or other form of alternative dispute resolution, arbitration or
other form of alternative dispute resolution over resort to the tort system,
and fair and efficient resolution of claims in all cases, while endeavoring to
preserve and enhance the Trust estate.
(ii) The Trustees shall employ mechanisms such as the
review of estimates of the numbers and values of Asbestos Claims, or other
comparable mechanisms, that provide reasonable assurance the Trust will value,
and be in a financial position to pay, present Asbestos Claims and future
Demands that involve similar claims in substantially the same manner.
(iii) The Trustees shall administer the processing
and payment of Asbestos Personal Injury Claims in accordance with the APICRP,
as the same may be amended from time to time, in accordance with the provisions
hereof and thereof.
(iv) The Trust may elect to prosecute before the
Bankruptcy Court (and all appellate courts) to a final, non-appealable order
objections to Asbestos Claims filed prior to the Effective Date. Between
Confirmation and the Effective Date, prosecution of objections to Asbestos
Claims filed between Confirmation and the Effective Date shall be stayed. Upon
allowance of any part of such Asbestos Claim by a final, non-appealable order
or settlement, the claimant will be paid in accordance with CRP.
(c) PD Claims. The Allowance of PD Claims shall be
administered by the PDCA exclusively in accordance with the APDCRP. The
Trustees shall not interfere with the actions and decisions of the PDCA that
are consistent with the APDCRP nor shall the Trustees interfere with the
independence of the PDCA in administering the APDCRP. The Trustees shall not
amend the APDCRP without the consent of the PD Advisory Committee. Payment of
PD Claims shall be made by the Trustees in the amount determined by the PDCA
pursuant to the APDCRP.
3.4 CLAIMS PAYMENT.
(a) Periodic Estimates. There is inherent uncertainty
regarding Celotex's and Carey Canada's total liabilities to holders of Asbestos
Claims as well as the total value of the Trust Assets available to pay Allowed
Asbestos Claims. Consequently, there is inherent uncertainty whether or not
similar amounts can be paid in respect of all similar present and future
Allowed Asbestos Personal Injury Claims and of all Allowed PD Claims. To ensure
substantially equivalent treatment, the Trustees must determine the percentage
of the Allowed Amount of all present and future Asbestos Claims that would
likely be paid to holders of
- 10 -
<PAGE> 11
CLOSING BINDER INDEX TAB NO. _____
such Claims ("PAYMENT PERCENTAGE") prior to making distributions to claimants,
other than those who have elected the discounted cash payment described in the
CRP. The Trustees must base this determination, on the one hand, on estimates
of the number, types, and amounts of present and expected future Asbestos
Claims and, on the other hand, on the value of the Trust Assets, the liquidity
of those assets, the Trust's expected future expenses and income, and other
material matters that are reasonable and likely to affect the sufficiency of
funds to pay a comparable percentage of full value to all holders of Asbestos
Claims. Therefore, after the second anniversary of the Effective Date, but no
less frequently than once every two (2) years, the Trustees shall consider
their determination of the Payment Percentage to assure that it is based on
credible, current information and forecasts, and may, after such consideration,
change the Payment Percentage. When making these determinations, the Trustees
shall recognize that both present and future claimants bear a risk that the
Payment Percentage will be incorrect, either too low or too high respectively.
In setting the Payment Percentage, the Trustees shall not prefer either present
or future claimants by giving greater protection from such risks to either.
Rather, the Trustees shall determine the recalculation of the Payment
Percentage based on their best estimates of total Trust Assets and Asbestos
Claims.
(b) Initial Payment Percentage. During the first two
years of operation, the Trustees will have difficulty in calculating the
Payment Percentage because of uncertainties in the total number, quality and
value of Asbestos Claims and the actual value of the Trust Assets. During the
first two years following the Effective Date, while these matters are
particularly uncertain, the Trust can and shall rely upon the calculation of
the Initial Payment Percentage, as described in the Plan and use the Initial
Payment Percentage in paying (i) Prepetition Liquidated Claims or claims under
the Individualized Review Process pursuant to the APICRP and (ii) PD Claims
liquidated and Allowed prior to the Effective Date which shall be paid within
six (6) months of the Effective Date. If the Trustees conclude that use of the
Initial Payment Percentage will adversely affect the interests of future
claimants or present claimants who have not yet been liquidated and Allowed,
the Trustees shall either suspend payments until they are able to determine an
appropriate Payment Percentage, or exercise their powers as set forth herein
and in the CRP. During the first two (2) years following the Effective Date,
Claims that are liquidated and Allowed but as to which payments have been
suspended, shall receive when such payments resume, through installments or
otherwise, the Payment Percentage in force at the time of liquidation and
Allowance. Claims that are liquidated and Allowed during the first two (2)
years following the Effective Date, but after a decision by the Trustees to
reduce the Initial Payment Percentage to a new Payment Percentage, shall
receive payments in the future, in installments or otherwise (but for a period
no longer than ten (10) years after the date of liquidation and Allowance),
equal to any increase in the Payment Percentage,
- 11 -
<PAGE> 12
CLOSING BINDER INDEX TAB NO. _____
but in no event shall such claimant receive more than the Initial Payment
Percentage times the Allowed Amount of such claimant's Claim.
(c) Payment. The Trustees shall have complete discretion
to determine the timing and the appropriate method for making payments, subject
to the requirements of the CRP with respect to the processing and ordering of
claims for payment. Such methods may include, in the discretion of the
Trustees, a method for the payment on an installment basis, in which case each
installment payment shall be subject to the Payment Percentage in effect at the
time such installment payment is made, except that the last installment will be
in an amount that would produce a total payment to the claimant equal to the
Allowed Amount of the Claim times the Payment Percentage in effect at the time
of such last payment. Because of the initial uncertainties about assets and
liabilities, during the first two years after the Effective Date, the Trustees
shall only pay Prepetition Claimants electing Individualized Review under the
APICRP and Category 1 Claimants electing payment deferral under the APDCRP on
an installment basis with an initial payment determined by the Initial Payment
Percentage in Article 1 of the Plan times fifty (50%) percent of the Allowed
Amount of the Claim. The Trust will make a second payment to such claimants
after the second anniversary of the Effective Date, but no later than
thirty-six (36) months after the Effective Date, or after the Trustees have
considered and, if necessary redetermined, the Payment Percentage, so that the
total amount received by the claimant is equal to the Allowed Amount times the
then current Payment Percentage. During the first two years after the Effective
Date, the Trustees shall only pay non-Prepetition Claims filed before the Bar
Date electing Individualized Review under the APICRP and Category 2 and
Category 3 Claimants electing payment deferral under the APDCRP on an
installment basis with an initial payment determined by the Initial Payment
Percentage in Article 1 of the Plan times fifty (50%) percent of the Allowed
Amount of the Claim. The Trust will make a second payment to such claimants
after the third anniversary of the Effective Date, but no later than
forty-eight (48) months after the Effective Date, or after the Trustees have
considered and, if necessary redetermined, the Payment Percentage, so that the
total amount received by the claimant is equal to the Allowed Amount times the
then current Payment Percentage.
(d) Auditing, Monitoring and Verifying. The Trustees
shall conduct random or other audits to verify information submitted in
connection with the CRP in a manner consistent with the CRP.
(e) Discretion To Alter Order Of Processing Or Suspend
Payments.
(i) In the event that the Trustees determine it is
advisable, they may suspend their normal order of processing
- 12 -
<PAGE> 13
CLOSING BINDER INDEX TAB NO. _____
or payment in favor of claimants who elect discounted cash payment under any
future discounted cash payment election programs offered by the Trust.
(ii) In the event that the Trust faces temporary
periods of limited liquidity or the Trustees conclude that use of the current
Payment Percentage will adversely affect the interests of future claimants or
present claimants who have not yet been paid, the Trustees may temporarily
limit or suspend payments altogether.
(iii) Consistent with the provisions hereof, the
Trustees and the PDCA shall proceed as quickly as possible to liquidate claims,
and the Trustees shall make payments to holders of Allowed Asbestos Claims
promptly as funds become available, while maintaining sufficient resources to
pay future Allowed Asbestos Claims in substantially the same manner. Because
decisions about payments must be based on estimates and cannot be made
precisely, such decisions may have to be revised in light of experience over
time, and a claimant who receives payment early in the life of the Trust may
receive a smaller or larger percentage of the Allowed Amount of such claimant's
Asbestos Claim than a claimant who receives payment in the middle of or late in
the life of the Trust. Therefore, there can be no guarantee of any specific
level of payment to claimants. However, the Trustees shall use their best
efforts to treat similar, Allowed Asbestos Claims in a substantially equivalent
manner, consistent with their duties as Trustees in these circumstances, the
purposes of the Trust, and given the practical limitations imposed by the
inability to predict the future with precision.
ARTICLE 4
ACCOUNTS, INVESTMENTS, AND PAYMENTS
4.1 ACCOUNTS. That Trustees may, from time to time,
create such accounts and reserves within the Trust estate as they may deem
necessary, prudent or useful in order to provide for the payment of expenses
and valid Asbestos Claims and may, with respect to any such account or reserve,
restrict the use of monies therein.
4.2 INVESTMENTS. Investment of monies held in the Trust shall
be administered in the manner in which individuals of ordinary prudence,
discretion and judgment would act in the management of their own affairs,
subject to the following limitations and provisions:
(a) The Trust shall not acquire, directly or indirectly,
equity in any Person (other than those that are Trust Assets under the Plan and
subsidiaries or affiliates of Trust
- 13 -
<PAGE> 14
CLOSING BINDER INDEX TAB NO. _____
Assets, now or hereafter acquired, or any successor to Reorganized Celotex) or
business enterprise if, immediately following such acquisition, the Trust would
hold more than 5% of the equity in such Person or business enterprise. The
Trust shall not hold, directly or indirectly, more than 10% of the equity in
any Person (other than a Person constituting a Trust Asset under the Plan
including Reorganized Celotex and its subsidiaries or affiliates, now or
hereafter acquired, or any successor to Reorganized Celotex) or business
enterprise.
(b) The Trust shall not acquire or hold any long-term
debt securities unless (i) such securities are Trust Assets under the Plan,
(ii) such securities are rated "Baa" or higher by Moody's Investors Service,
Inc. ("MOODY'S"), "BBB" or higher by Standard & Poor's corporation ("S&P'S")
or have been given an equivalent investment grade rating by another nationally
recognized statistical rating agency, or (iii) have been issued or fully
guaranteed as to principal and interest by the United States of America or any
agency or instrumentality thereof.
(c) The Trust shall not acquire or hold for longer than
ninety (90) days any commercial paper unless such commercial paper is rated
"Prime-1" or higher by Moody's or "A-1" or higher by S&P's or has been given an
equivalent rating by another nationally recognized statistical rating agency.
(d) The Trust shall not acquire or hold any preferred
stock unless such preferred stock is rated "AA" or higher by Moody's or "A" or
higher by S&P's or has been given an equivalent investment grade rating by
another nationally recognized statistical rating agency.
(e) The Trust shall not acquire any securities or other
instruments issued by any person (other than debt securities or other
instruments issued or fully guaranteed as to principal and interest by the
United States of America or any agency or instrumentality thereof) if,
following such acquisition, the aggregate Market Value of all securities and
instruments issued by such Person held by the Trust would exceed 2% of the
Aggregate Value of the Trust Estate. The Trust shall not hold any securities or
other instruments issued by any Person (other than debt securities or other
instruments issued or fully guaranteed as to principal and interest by the
United States of America or any agency or instrumentality thereof) to the
extent that the aggregate Market Value of all securities and instruments issued
by such Person held by the Trust would exceed 5% of the Aggregate Value of the
Trust Estate.
(f) The Trust shall not acquire or hold any certificates
of deposit unless all publicly held, long-term debt securities, if any, of the
financial institution issuing the certificate of deposit and the holding
company, if any, of which
- 14 -
<PAGE> 15
CLOSING BINDER INDEX TAB NO. ___
such financial institution is a subsidiary, meet the standards set forth in
Section 4.03(b).
(g) The Trust may acquire and hold any securities or
instruments issued by Reorganized Celotex, Jim Walter Company, or Walter
Industries, Inc., or their subsidiaries, affiliates, or successors, without
regard to the limitations set forth in Subsections (a) - (f) above.
(h) The Trust shall not acquire or hold any repurchase
obligations unless, in the opinion of the Trustees, they are adequately
collateralized.
(i) The Trust shall not acquire or hold any options.
4.3 SOURCE OF PAYMENTS. All Trust expenses, payments and all
liabilities with respect to Asbestos Claims shall be payable solely out of the
Trust estate. Neither Celotex, Reorganized Celotex, the Debtors, their
subsidiaries, any successor in interest or the present or former directors,
officers, employees or agents of Celotex, Reorganized Celotex, the Debtors or
their subsidiaries, nor the Trustees, the Approving Entities or any of their
officers, agents, advisors or employees shall be liable for the payment of any
Trust expense or any other liability of the Trust.
ARTICLE 5
TRUSTEES
5.1 NUMBER. There shall be five (5) Trustees designated by
the TAC and the Legal Representative. Upon the unanimous vote of the TAC and
with the consent of the Legal Representative, the number of Trustees can be
reduced to three (3) Trustees. The initial Trustees shall be those persons
named on the signature page hereof. One (1) Trustee shall be designated
Chairperson annually by vote of the remaining Trustees.
5.2 TERM OF SERVICE.
(a) The initial Trustees named pursuant to Article 5.1
shall serve until the earlier of (i) the expiration of his or her term, (ii)
his or her resignation pursuant to Article 5.2(c), (iii) his or her removal
pursuant to Article 5.2(d), or (iv) the termination of the Trust pursuant to
Article 9.2, at which time the term shall terminate automatically. The Trustees
shall serve for staggered terms, the duration of which shall be five (5) years,
six (6) years, seven (7) years, eight (8) years and nine (9) years,
- 15 -
<PAGE> 16
CLOSING BINDER INDEX TAB NO. _____
respectively. Term durations shall be assigned among the Trustees by lot.
(b) Successor Trustees shall serve until the earlier of
(i) the expiration of his or her term, which shall be of the same duration as
that of his or her predecessor Trustee, (ii) his or her resignation pursuant to
Article 5.2(c), (iii) his or her removal pursuant to Article 5.2(d), (iv) the
termination of the Trust pursuant to Article 9.2, or at which time the term
shall terminate automatically.
(c) Any Trustee may resign at any time by written notice
to each of the remaining Trustees, the Legal Representative and the TAC. Such
notice shall specify a date when such resignation shall take effect, which
shall not be less than 90 days after the date such notice is given, where
practicable.
(d) Any Trustee may be removed in the event that such
Trustee becomes unable to discharge his or her duties hereunder due to accident
or physical or mental deterioration, or for other good cause. Good cause shall
be deemed to include, without limitation, any failure to comply with Article
3.2, a consistent pattern of neglect and failure to perform or participate in
performing the duties of the Trustees hereunder, or repeated non-attendance at
scheduled meetings. Such removal shall require the unanimous decision of the
other Trustees. Such removal shall take effect at such time as the other
Trustees shall determine.
5.3 APPOINTMENT OF SUCCESSOR TRUSTEE.
(a) In the event of a vacancy in the position of Trustee,
the vacancy shall be filled by the unanimous vote of the remaining Trustees.
(b) Immediately upon the appointment of any successor
Trustee, all rights, titles, duties, powers and authority of the predecessor
Trustee hereunder shall be vested in, and undertaken by, the successor Trustee
without any further act. No successor Trustee shall be liable personally for
any act or omission of his or her predecessor Trustee.
5.4 LIABILITY OF TRUSTEES, OFFICERS AND EMPLOYEES. No
Trustee, officer, employee, agent or consultant of the Trust shall be liable to
the Trust, to any person holding an Asbestos Claim, or to any other Person
except for such individual's own breach of trust committed in bad faith, or for
gross negligence or willful misappropriation. No Trustee, officer, or employee
of the Trust shall be liable for any act or omission of any other officer,
employee, agent, or consultant of the Trust, unless the Trustee, officer or
employee acted with bad faith or was grossly negligent in the selection or
retention of such officer, employee, agent, or consultant.
- 16 -
<PAGE> 17
CLOSING BINDER INDEX TAB NO. _____
5.5 COMPENSATION AND EXPENSES OF TRUSTEES.
(a) Each of the Trustees shall receive compensation from
the Trust for his or her services as Trustee in the amount of $50,000 per
annum, plus a per diem allowance for meetings or other Trust business attended
in the amount of $2,000. The Trustees shall determine the scope and duration of
activities that constitute a meeting and, if the Trustees elect to provide for
payment for activities of less than a full day's duration, may provide for
partial payment of per diem amounts on a proportional basis for activities of
less than a full day's duration. The per annum compensation payable to the
Trustees hereunder shall be reviewed every three (3) years and increased with
the consent of the TAC and the Legal Representative.
(b) The Trust will promptly reimburse all Trustees and
the Chairperson for all reasonable out-of-pocket costs and expenses incurred by
the Trustees in connection with the performance of their duties hereunder.
(c) The Trust will include in the report to be filed
pursuant to Article 3.2(c)(i) of this Trust Agreement, and in a separate
semi-annual report to be filed in the same manner, a description of the amounts
paid under this Article 5.5.
5.6 INDEMNIFICATION OF TRUSTEES AND ADDITIONAL INDEMNITEES.
(a) The Trust shall indemnify and defend the Trustees,
the Trust's officers, its agents, advisors, consultants or employees, to the
fullest extent that a corporation or trust organized under the laws of the
Trust's situs is from time to time entitled to indemnify and defend its
directors, trustees, officers, employees, agents and advisors against any and
all liabilities, expenses, claims, damages or losses incurred by them in the
performance of their duties hereunder. Notwithstanding the foregoing, the
Trustees shall not be indemnified or defended in any way for any liability,
expense, claim, damage or loss for which they are liable under Article 5.4.
Additionally, each member of the Injury Claimants'
Committee, the PD Committee and their respective professionals, and the
Approving Entities, their members and their respective professionals,
Reorganized Celotex and its professionals, Reorganized Carey Canada and its
professionals (collectively, the "ADDITIONAL INDEMNITEES") who was or is a
party, or is threatened to be made a party to any threatened, pending judicial,
or administrative or arbitrative action, by reason of any act or omission of
such Additional Indemnitees with respect to (i) the Reorganization Cases, (ii)
the liquidation of any Asbestos Claims, (iii) the administration of the Trust
and the implementation of the CRP, or (iv) any and all activities in connection
with the Trust Agreement shall be indemnified and defended by the Trust against
- 17 -
<PAGE> 18
CLOSING BINDER INDEX TAB NO. _____
expenses, costs and fees (including attorneys' fees and costs), judgments,
awards, amounts paid in settlement, and liabilities of all kinds incurred by
each Additional Indemnitee in connection with or resulting from such action,
suit, or proceeding, if he or she acted in good faith and in a manner such
Additional Indemnitee reasonably believed to be in, or not opposed to, the best
interests of the holders of Asbestos Claims whom the Additional Indemnitees
represent.
(b) Reasonable expenses, costs and fees (including
attorneys' fees and costs) incurred by or on behalf of a Trustee or Additional
Indemnitee in connection with any action, suit, or proceeding, whether civil,
administrative or arbitrative from which they are indemnified by the Trust
pursuant to Article 5.6(a), shall be paid by the Trust in advance of the final
disposition thereof upon receipt of an undertaking, by or on behalf of such
Trustee or Additional Indemnitee, to repay such amount in the event that it
shall be determined ultimately by final order that such Trustee or Additional
Indemnitee is not entitled to be indemnified by the Trust.
(c) The Trustees shall have the power, generally or in
specific cases, to cause the Trust to indemnify the employees and agents of the
Trust to the same extent as provided in this Article 5.6 with respect to the
Trustees.
(d) Any indemnification under Article 5.6(c) of this
Agreement shall be made by the Trust upon a determination that indemnification
of such Person is proper in the circumstances.
(e) The Trustees may purchase and maintain reasonable
amounts and types of insurance on behalf of an individual who is or was a
Trustee, officer, employee, agent or representative of the Trust or Additional
Indemnitee against liability asserted against or incurred by such individual in
that capacity or arising from his or her status as a Trustee, officer,
employee, agent or representative.
5.7 TRUSTEES' LIEN. The Trustees shall have a first priority
lien upon the Trust Assets to secure the payment of any amounts payable to them
pursuant to Articles 5.5 and 5.6.
5.8 TRUSTEES' EMPLOYMENT OF EXPERTS. The Trustees may, but
shall not be required to, retain and/or consult with counsel, accountants,
appraisers, auditors and forecasters and other parties deemed by the Trustees
to be qualified as experts on the matters submitted to them and the opinion of
any such parties on any matters submitted to them by the Trustees shall be full
and complete authorization and protection in respect of any action taken or not
taken by the Trustees hereunder in good faith and in accordance with the
written opinion of any such party.
- 18 -
<PAGE> 19
CLOSING BINDER INDEX TAB NO. _____
5.9 TRUSTEES' INDEPENDENCE. No Trustee shall, during the term
of his or her service, hold a financial interest in, act as attorney or agent
for, or serve as any other professional for Reorganized Celotex or Reorganized
Carey Canada. No Trustee shall act as an attorney for any person who holds an
Asbestos Claim.
5.10 TRUSTEES' SERVICE AS DIRECTORS OF REORGANIZED CELOTEX
PROHIBITED. The Trustees are prohibited from serving as directors of
Reorganized Celotex.
5.11 BOND. The Trustees shall not be required to post any
bond or other form of surety or security unless otherwise ordered by the
Bankruptcy Court.
ARTICLE 6
THE LEGAL REPRESENTATIVE
6.1 DUTIES. The Trustees must consult with the Legal
Representative on matters identified in Article 3.2(e) and may consult with the
Legal Representative on any matter affecting the Trust. Where provided in this
Trust Agreement or the APICRP, actions of the Trustees are subject to the
consent of the Legal Representative.
6.2 TERM OF OFFICE.
(a) The Legal Representative shall serve until the
earlier of (i) his or her death; or (ii) his or her resignation pursuant to
Article 6.2(b); (iii) his or her removal or (iv) the termination of the Trust
pursuant to Article 9.2, at which time his or her term shall terminate
automatically.
(b) The Legal Representative may resign at any time by
written notice to the Trustees. Such notice shall specify a date when such
resignation shall take effect, which shall not be less than ninety (90) days
after the date such notice is given, where practicable.
(c) The Legal Representative may be removed in the event
he or she becomes unable to discharge his or her duties hereunder due to
accident, physical deterioration, mental incompetence, or a consistent pattern
of neglect and failure to perform or to participate in performing the duties
hereunder, such as repeated non-attendance at scheduled meetings. Such removal
shall be made by the unanimous decision of the Trustees.
6.3 APPOINTMENT OF SUCCESSOR. A vacancy caused by the
resignation or death of the Legal Representative shall be filled with an
individual nominated by the Legal Representative, or, in
- 19 -
<PAGE> 20
CLOSING BINDER INDEX TAB NO. _____
the absence of a nomination by the Legal Representative, upon the unanimous
nomination of the Trustees, and, in either case, upon Bankruptcy Court
approval.
6.4 LEGAL REPRESENTATIVE'S EMPLOYMENT OF EXPERTS. The Legal
Representative may retain and/or consult with counsel, accountants, appraisers,
auditors, forecasters, asbestos experts and other parties deemed by the Legal
Representative to be qualified as experts on matters submitted to them, and the
opinion of any such parties on any matters submitted to them shall be full and
complete authorization and protection in support of any action taken or not
taken by the Legal Representative hereunder in good faith and in accordance
with the written opinion of any such party, and in the absence of gross
negligence. The Legal Representative and his or her experts shall at all times
have complete access to the Trust's officers, employees and agents, and the
accountants, appraisers, auditors, forecasters and other experts retained by
the Trust as well as all information generated by them or otherwise available
to the Trust or Trustees.
6.5 COMPENSATION AND EXPENSES OF THE LEGAL REPRESENTATIVE.
(a) The Legal Representative shall receive compensation
from the Trust for his or her services as the Legal Representative at his or
her hourly rate.
(b) The Trust will promptly reimburse, or pay directly if
so instructed, the Legal Representative for all reasonable out-of-pocket costs
and expenses, including fees and costs associated with employment of experts
pursuant to Article 6.4 incurred by the Legal Representative in connection with
the performance of his or her duties hereunder. Such reimbursement or direct
payment shall be deemed a Trust Expense.
6.6 PROCEDURE FOR OBTAINING CONSENT OF THE LEGAL
REPRESENTATIVE.
(a) In the event the consent of the Legal Representative
is required pursuant to the terms hereof, the Trustees shall promptly provide
the Legal Representative and his or her counsel with notice and with all
information regarding the matter in question.
(b) The Legal Representative must consider in good faith
any request by the Trustees and may not withhold his or her consent
unreasonably.
- 20 -
<PAGE> 21
CLOSING BINDER INDEX TAB NO. _____
6.7 LACK OF CONSENT OF THE LEGAL REPRESENTATIVE. In the event
the Trustees are unable to obtain the consent of the Legal Representative to
any action or decision for which consent is required after following the
procedure set forth in Article 6.6 of this Trust Agreement, or if the Trustees
and the Legal Representative are unable to reach agreement on any matter on
which such consent is required, the matter may be submitted promptly to ADR if
mutually agreeable to the Trustees and the Legal Representative.
If the disagreement is not resolved by ADR, the Trustees
may apply to the Bankruptcy Court on an expedited basis for approval of such
action or decision, and only if such approval is given by the Bankruptcy Court
by entry of an appropriate order, shall the Trustees have the authority to
implement such action or decision without the Legal Representative's consent.
ARTICLE 7
TRUST ADVISORY COMMITTEE
7.1 FORMATION; DUTIES. The TAC shall be formed. For the first
year following Confirmation, the TAC shall be composed of six (6) members,
Frederick M. Baron, Esquire, Paul T. Gillenwater, Esquire, Leonard C. Jaques,
Esquire, Steven Kazan, Esquire, Gene Locks, Esquire and Joseph F. Rice,
Esquire. The Trustees must consult with the TAC on matters identified in
Article 3.2(e) and may consult with the TAC on any matter affecting the Trust.
The TAC and its members shall serve in a fiduciary capacity representing all
holders of Asbestos Personal Injury Claims (excluding, however, holders of
Demands). Where provided in this Trust Agreement or the APICRP, actions by the
Trustees are subject to the consent of the TAC.
7.2 NUMBER; CHAIRPERSON.
(a) On and after the first anniversary, the TAC shall be
reduced to three (3) members, Frederick M. Baron, Esquire, Joseph F. Rice,
Esquire and Gene Locks, Esquire. At such time, the TAC may vote to expand its
membership to five (5) and the additional members shall be selected by the TAC.
The TAC shall act in all cases by majority vote.
(b) The TAC shall have a Chairperson who shall act as the
TAC's liaison, coordinate and schedule meetings of the TAC, and handle all
administrative matters that come before the TAC.
- 21 -
<PAGE> 22
CLOSING BINDER INDEX TAB NO. _____
7.3 TERM OF OFFICE.
(a) Each member of the TAC shall serve until the earlier
of (i) his or her death; (ii) his or her resignation pursuant to Article
7.3(b), (iii) his or her removal pursuant to Article 7.3(c) or (iv) the
termination of the Trust pursuant to Article 9.2, at which time his or her term
shall terminate automatically.
(b) Any member of the TAC may resign at any time by
written notice to each of the remaining TAC members. Such notice shall specify
a date when such resignation shall take effect, which shall not be less than
ninety (90) days after the date such notice is given, where practicable.
(c) Any member of the TAC may be removed in the event
such member becomes unable to discharge his or her duties hereunder due to
accident, physical deterioration, mental incompetence, or a consistent pattern
of neglect and failure to perform or to participate in performing the duties of
such member hereunder, such as repeated non-attendance at scheduled meetings.
Such removal shall be made by the unanimous decision of the remaining members
of the TAC.
7.4 APPOINTMENT OF SUCCESSOR. A vacancy in the TAC caused by
the resignation, death or removal of a TAC member shall be filled with an
individual, not a firm, approved by the unanimous vote of all remaining members
of the TAC.
7.5 TAC'S EMPLOYMENT OF EXPERTS. The TAC may retain and/or
consult with counsel, accountants, appraisers, auditors, forecasters, asbestos
experts and other parties deemed by the TAC to be qualified as experts on
matters submitted to them, and the opinion of any such parties on any matters
submitted to them shall be full and complete authorization and protection in
support of any action taken or not taken by the TAC hereunder in good faith and
in accordance with the written opinion of any such party, and in the absence of
gross negligence. The TAC and its experts shall at all times have complete
access to the Trust's officers, employees and agents, and the accountants,
appraisers, auditors, forecasters and other experts retained by the Trust as
well as information generated by them or otherwise available to the Trust or
Trustees.
7.6 COMPENSATION AND EXPENSES OF THE TAC.
(a) Each disinterested TAC member shall receive
compensation of $1,500 per diem from the Trust for his or her ser vices as a
TAC member.
(b) The Trust will promptly reimburse, or pay directly if
so instructed, the TAC member for all reasonable out-of-pocket costs and
expenses, including fees and costs associated with employment of experts
pursuant to Article 7.5 incurred by the
- 22 -
<PAGE> 23
CLOSING BINDER INDEX TAB NO. _____
TAC member in connection with the performance of his or her duties hereunder.
Such reimbursement or direct payment shall be deemed a Trust Expense.
7.7 PROCEDURE FOR OBTAINING CONSENT OF THE TAC.
(a) In the event the consent of the TAC is required
pursuant to the terms hereof, the Trustees shall promptly provide the TAC and
its counsel with notice and with all information regarding the matter in
question.
(b) The members of the TAC must consider in good faith
any request by the Trustees and no member of the TAC may withhold his or her
consent unreasonably.
7.8 LACK OF CONSENT OF THE TAC.
In the event the Trustees are unable to obtain the
consent of the TAC, any action or decision for which consent of the TAC is
required, after following the procedure set forth in Article 7.7 of this Trust
Agreement, or if the Trustees and the TAC are unable to reach agreement on any
matter on which the TAC's consent is required, then the matter may be submitted
promptly to binding ADR if mutually agreeable to the Trustees and the TAC.
If the disagreement is not resolved by ADR, the Trustees
may apply to the Bankruptcy Court on an expedited basis for approval of such
action or decision, and only if such approval is given by the Bankruptcy Court
by entry of an appropriate order shall the Trustees have the authority to
implement such action or decision without the TAC's consent.
ARTICLE 8
PD ADVISORY COMMITTEE AND PDCA CONSENT
8.1 FORMATION; DUTIES. The PD Advisory Committee shall be
formed and shall exist from the Confirmation Date until the date the Trust pays
the last Allowed PD Claim and all disallowed PD Claims have been disallowed by
final, non-appealable order. The PD Advisory Committee shall be composed of
Daniel A. Speights, Esquire, Martin Dies, Esquire and Karen Ruth Cordry,
Esquire. The Trustees must consult with the PD Advisory Committee on matters
identified in Article 3.2(e). The PD Advisory Committee and its members shall
serve in a fiduciary capacity representing all holders of PD Claims. Where
provided in this Trust Agreement or the APDCRP, actions by the Trustees are
subject to the consent of the PD Advisory Committee.
- 23 -
<PAGE> 24
CLOSING BINDER INDEX TAB NO. _____
8.2 NUMBER; CHAIRPERSON.
(a) The PD Advisory Committee shall have three (3)
members. On and after the first anniversary, the PD Advisory Committee may vote
to expand its membership to five (5) and the additional members shall be
selected by the PD Advisory Committee. The PD Advisory Committee shall act in
all cases by majority vote.
(b) Daniel A. Speights, Esquire shall serve as
Chairperson of the PD Advisory Committee and in such capacity shall act as the
PD Advisory Committee's liaison, coordinate and schedule meetings of the PD
Advisory Committee, and handle all administrative matters that come before the
PD Advisory Committee.
8.3 PROCEDURE FOR OBTAINING CONSENT OF THE PD ADVISORY
COMMITTEE AND THE PDCA.
(a) In the event the consent of the PD Advisory Committee
and the PDCA is required pursuant to the terms hereof, the Trustees shall
promptly provide the PD Advisory Committee and the PDCA and their respective
counsel with notice and with all information regarding the matter in question.
(b) The members of the PD Advisory Committee and the PDCA
must consider in good faith any request by the Trustees and no member of the PD
Advisory Committee or the PDCA may withhold his or her consent unreasonably.
8.4 LACK OF CONSENT OF THE PD ADVISORY COMMITTEE OR THE PDCA.
In the event the Trustees are unable to obtain the
consent of the PD Advisory Committee or the PDCA, any action or decision for
which consent of the PD Advisory Committee or the PDCA is required, after
following the procedure set forth in Article 8.3 of this Trust Agreement, or if
the Trustees and the PD Advisory Committee or the PDCA are unable to reach
agreement on any matter on which the PD Advisory Committee's or the PDCA's
consent is required, then the matter may be submitted promptly to binding ADR
if mutually agreeable to the Trustees, the PD Advisory Committee and the PDCA,
as applicable.
If the disagreement is not resolved by ADR, the Trustees
may apply to the Bankruptcy Court on an expedited basis for approval of such
action or decision, and only if such approval is given by the Bankruptcy Court
by entry of an appropriate order shall the Trustees have the authority to
implement such action or decision without the PD Advisory Committee's or the
PDCA's consent, as applicable.
8.5 THE PDCA.
- 24 -
<PAGE> 25
CLOSING BINDER INDEX TAB NO. _____
(a) The PDCA shall be appointed by the PD Committee and
shall be W.D. Hilton, Jr.. The PDCA shall serve from the Confirmation Date
until the earlier of (i) his or her death, resignation or removal by the
Bankruptcy Court or (ii) the date the Trust pays the last Allowed PD Claim and
all disallowed PD Claims have been disallowed by final, non-appealable order.
In the event of a vacancy, the PD Advisory Committee may nominate a successor,
the final selection of which will be upon Bankruptcy Court approval.
(b) The PDCA may resign at any time by written notice to
the Trustees and the PD Advisory Committee. Such notice shall specify a date
when such resignation shall take effect, which shall not be less than ninety
(90) days after the date such notice is given, where practicable.
(c) The PDCA may be removed by the PD Advisory Committee
in the event he or she becomes unable to discharge his or her duties hereunder
due to accident, physical deterioration, mental incompetence, or a consistent
pattern of neglect and failure to perform or to participate in performing the
duties hereunder or under the APDCRP.
(d) A vacancy caused by the resignation, death or removal
of the PDCA shall be filled with an individual, not a firm, appointed by the PD
Advisory Committee.
(e) The PDCA may retain and/or consult with counsel,
accountants, appraisers, auditors, forecasters, asbestos experts and such other
parties deemed by the PDCA, upon the advice and consent of the PD Advisory
Committee, to be qualified as experts on the matters submitted to them by the
PDCA and the opinion of any parties on any matters submitted to them by the
PDCA shall be full and complete authorization and protection in support of any
action taken or not taken by the PDCA and the PD Advisory Committee in good
faith and in accordance with the written opinion of any such party, and in the
absence of gross negligence. The PD Advisory Committee and the PDCA, as well as
his or her experts, shall at all times have complete access to the Trust's
officers, employees, agents, professionals, and experts for purposes of
evaluating the Trustees' determination of the Payment Percentages from time to
time.
(f) The PDCA may contract at the expense of the Trust,
with other claims resolution facilities that are not expressly created by this
Trust Agreement for the use (whether by license, purchase or otherwise) of
claims resolution and payment software, systems and facilities; provided,
however, such contracts shall not (i) subject the Reorganized Debtors or any
successor in interest to any risk of having any Asbestos Claim asserted against
it; or (ii) otherwise jeopardize the validity or enforceability of the Asbestos
Permanent Channeling Injunction.
- 25 -
<PAGE> 26
CLOSING BINDER INDEX TAB NO. _____
(g) The PDCA shall have the power and authority, subject
to the advice and consent of the PD Advisory Committee, to sue and participate,
as a party or otherwise, in any judicial, administrative, arbitration or other
proceeding as contemplated in the APDCRP, including, without limitation, to
prosecute and settle claims against Dana which revert to the PDCA pursuant to
the APDCRP.
8.6 COMPENSATION AND EXPENSES OF THE PDCA AND THE PD ADVISORY
COMMITTEE.
(a) The PDCA shall receive the following compensation
from the Trust for his or her services: (i) $200 per hour with a minimum
monthly compensation of $9,000 and a maximum monthly compensation of $14,000;
such compensation shall be reviewed annually by the PD Advisory Committee; and
(ii) an Incentive Bonus if the PDCA Facility successfully reviews, evaluates
and makes final determinations of Allowed Costs for less than the expense
target of 1.5% of the Total Allowed Costs; on a sharing of the savings basis,
20% of the savings would be paid to the PDCA who will then have the authority
to pay a substantial portion of the Incentive Bonus to the staff of the PDCA
Facility, as a reward to be paid at the conclusion of the claims resolution
process, thus providing an incentive for the staff of the PDCA Facility to
remain engaged until the end of the project.
(b) Each disinterested member of the PD Advisory
Committee shall receive compensation of $1,500 per diem from the Trust for his
or her services as a PD Advisory Committee member.
(c) The Trust will promptly reimburse, or pay directly if
so instructed, all reasonable out-of-pocket costs and expenses incurred by the
PDCA and the members of the PD Advisory Committee, incurred by the PDCA and the
members of the PD Advisory Committee in connection with the performance of his
or her duties hereunder, including costs and fees of professionals and experts.
Such reimbursement or direct payment shall be deemed a Trust Expense.
ARTICLE 9
GENERAL PROVISIONS
9.1 IRREVOCABILITY. The Trust is irrevocable.
9.2 TERMINATION.
(a) The Trust shall automatically terminate on the date
(the "TERMINATION DATE") ninety (90) days after the first to occur of the
following events:
- 26 -
<PAGE> 27
CLOSING BINDER INDEX TAB NO. _____
(i) the Trustees in their sole discretion decide to
terminate the Trust because (A) they deem it unlikely that new Asbestos Claims
will be filed against the Trust and (B) all Asbestos Claims duly filed with the
Trust have been Allowed and paid to the extent provided in this Trust Agreement
and the CRP or disallowed by a final, non-appealable order, to the extent
possible based upon the Funds available through the Plan, and twelve (12)
consecutive months have elapsed during which no new Asbestos Claim has been
filed with the Trust;
(ii) if the Trustees have procured and have in place
irrevocable insurance policies and have established claims handling agreements
and other necessary arrangements with suitable third parties adequate to
discharge all expected remaining obligations and expenses of the Trust in a
manner consistent with this Trust Agreement, and the APICRP, the date on which
the Bankruptcy Court enters an order approving such insurance and other
arrangements and such order becomes a final, non-appealable order; or
(iii) to the extent that any rule against
perpetuities shall be deemed applicable to the Trust, twenty-one (21) years
less ninety-one (91) days pass after the death of the last survivor of all of
the descendants of Joseph P. Kennedy, Sr., of Massachusetts living on the date
hereof.
(b) On the Termination Date, after payment of all the
Trust's liabilities have been provided for, all monies remaining in the Trust
estate shall be given to such organization(s) exempt from federal income tax
under Section 501(c)(3) of the Internal Revenue Code, which tax-exempt
organization(s) shall be selected by the Trustees using their reasonable
discretion; provided, however, that (i) if practicable, the tax-exempt
organization(s) shall be related to the treatment of, research on, or the
relief of suffering of individuals suffering from asbestos related lung
disorders, and (ii) the tax-exempt organization(s) shall not bear any
relationship to Reorganized Celotex within the meaning of Section 468(d)(3) of
the Internal Revenue Code.
9.3 AMENDMENTS. The Trustees, after consultation with the
Approving Entities, and subject to the consent of the Approving Entities where
so provided, may modify or amend this Trust Agreement or any document annexed
to it, including, without limitation, the Bylaws or the APICRP. Any
modification or amendment made pursuant to this Article must be done in
writing. Notwithstanding anything contained in this Trust Agreement to the
contrary, neither this Trust Agreement, the Bylaws, any annexed document nor
the CRP shall be modified or amended in any way that could jeopardize the
efficacy or enforceability of the Asbestos Permanent Channeling Injunction or
Qualified Settlement Fund status.
- 27 -
<PAGE> 28
CLOSING BINDER INDEX TAB NO. _____
9.4 MEETINGS. A TAC member, a PD Advisory Committee member,
the Legal Representative or a Trustee shall be deemed to have attended a
meeting in the event such person spends a substantial portion of the day
conferring, by phone or in person, on Trust matters with TAC members, PD
Advisory Committee members, the Legal Representative, or Trustees, as
applicable. The Trustees shall have complete discretion to determine whether a
meeting, as described herein, occurred for purposes of Articles 5.5, 6.5, 7.6
and 8.6.
9.5 SEVERABILITY. Should any provision in this Trust
Agreement be determined to be unenforceable, such determination shall in no way
limit or affect the enforceability and operative effect of any and all other
provisions of this Trust Agreement.
9.6 NOTICES. Notices to persons asserting claims shall be
given at the address of such person, or, where applicable, such person's legal
representative, in each case as provided on such person's claim form submitted
to the Trust with respect to his or her or its Asbestos Claim.
Any notices or other communications required or permitted
hereunder shall be in writing and delivered at the addresses designated below,
or sent by telex, telecopy or facsimile pursuant to the instructions listed
below, or mailed by registered or certified mail, return receipt requested,
postage prepaid, addressed as follows, or to such other address or addresses as
may hereafter be furnished by any of the Notice Recipients, the Trustees, the
Approving Entities or Reorganized Celotex to the other notice recipients in
compliance with the terms hereof.
- 28 -
<PAGE> 29
CLOSING BINDER INDEX TAB NO. _____
To the Trust through
the Trustees: The Honorable Frank Andrews
4315 W. Lovers Lane
P.O. Box 7829
Dallas, Texas 75209
John H. Laeri, Jr.
Meadowcroft Associates, Inc.
9 Burr Road
Westport, Connecticut 06880-4220
Francis E. McGovern
Duke University School of Law
Box 90360
Towerview Road and Science Drive
Durham, North Carolina 27708-0360
Sharon M. Meadows
356 West Road
New Canaan, Connecticut 06840
James W. Stevens
Sixth Floor
450 Park Avenue
New York, New York 10022
To the Legal Representative: David S. Shrager
Shrager, McDaid, Loftus, Flum
& Spivey
32nd Floor
Two Commerce Square
2001 Market Street
Philadelphia, Pennsylvania 19103
To the TAC: Frederick M. Baron
Baron & Budd
Suite 1100
3102 Oak Lawn Avenue
Dallas, Texas 75219
Paul T. Gillenwater
Gillenwater, Nichol & Ames
6401 Baum Drive
Knoxville, Tennessee 37919
Leonard C. Jaques
The Jaques Admiralty Law Firm
1370 Penobscot Building
Detroit, Michigan 48226
Steven Kazan
- 29 -
<PAGE> 30
CLOSING BINDER INDEX TAB NO. _____
Kazan, McClain, Edises & Simon
Suite 300
171 12th Street
Oakland, California 94607
Gene Locks
Greitzer & Locks
1500 Walnut Street
Philadelphia, Pennsylvania 19102
Joseph F. Rice
Ness, Motley, Loadholt, Richardson
& Poole
Suite 600
154 Meeting Street
P.O. Box 1137
Charleston, South Carolina 29402
To Reorganized Celotex and
Reorganized Carey Canada: George N. Wood
The Celotex Corporation
4010 Boy Scout Boulevard
Tampa, Florida 33607
Jean-Paul Bolduc
Carey Canada Inc.
C.P./P.O. Box 310
East Broughton (Quebec)
Canada GON 1GO
To the PDCA: W.D. Hilton, Jr.
310 East I-30, Suite 270
Garland, Texas 75043
To the PD Advisory
Committee: Karen Ruth Cordry
National Association of Attorneys
General
750 First Street N.E.
Suite 1110
Washington, DC 20002
Daniel A. Speights
Speights & Runyan
304 Lee Avenue
P.O. Box 685
Hampton, South Carolina 29924
- 30 -
<PAGE> 31
CLOSING BINDER INDEX TAB NO. _____
All such notices and communications if mailed shall be effective when
physically delivered at the designated addresses or, if electronically
transmitted, when the communication is received at the designated addresses and
confirmed by the recipient by return electronic transmission.
9.7 SUCCESSORS AND ASSIGNS. The provisions of this Trust
Agreement shall be binding upon and inure to the benefit of the Settlors, the
Trust, and the Trustees and their respective successors and assigns, except
that neither the Settlors, nor the Trust, nor any Trustee may assign or
otherwise transfer any of its, or his or her rights or obligations under this
Trust Agreement except, in the case of the Trust and the Trustees, as
contemplated by Article 3.1.
9.8 LIMITATION ON CLAIM INTERESTS FOR SECURITIES LAWS
PURPOSES. Asbestos Claims, and any interests therein (a) shall not be assigned,
conveyed, hypothecated, pledged or otherwise transferred, voluntarily or
involuntarily, directly or indirectly, except by will or under the laws of
descent and distribution; (b) shall not be evidenced by a certificate or other
instrument; (c) shall not possess any voting rights; and (d) shall not be
entitled to receive any dividends or interest; provided, however, that the
foregoing shall not apply to the holder of an Indirect Asbestos Claim that is
subrogated to an Asbestos Claim as a result of its satisfaction of such
Asbestos Claim.
9.9 ENTIRE AGREEMENT; NO WAIVER. The entire agreement of the
parties relating to the subject matter of this Trust Agreement is contained
herein and in the documents referred to herein, and this Trust Agreement and
such documents supersede any prior oral or written agreements concerning the
subject matter hereof. No failure to exercise or delay in exercising any right,
power or privilege hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any right, power or privilege hereunder preclude
any further exercise thereof or of any other right, power or privilege. The
rights and remedies herein provided are cumulative and are not exclusive of
rights under law or in equity.
9.10 HEADINGS. The headings used in this Trust Agreement are
inserted for convenience only and neither constitute a portion of this Trust
Agreement, nor in any manner affect the construction of the provisions of this
Trust Agreement.
9.11 GOVERNING LAW. This Trust Agreement shall be governed
by, and construed in accordance with, the laws of the State of Florida without
regard to Florida conflict of laws principles.
9.12 SETTLORS' REPRESENTATIVE AND COOPERATION. Celotex is
hereby irrevocably designated as the representative of the Settlors, and it is
hereby authorized to take any action required
- 31 -
<PAGE> 32
CLOSING BINDER INDEX TAB NO. _____
of the Settlors in connection with the Trust Agreement. Settlors agree to
cooperate in implementing the goals and objectives of this Trust.
9.13 DISPUTE RESOLUTION. Any disputes that arise under this
Agreement or under the annexes hereto shall be resolved by the Bankruptcy Court
pursuant to the Plan, except as otherwise provided herein or in the annexes
hereto. Notwithstanding anything else herein contained, to the extent any
provision of this Trust Agreement is inconsistent with any provision of the
Plan, the Plan shall control.
9.14 ENFORCEMENT AND ADMINISTRATION. The provisions of this
Trust Agreement and the annexes hereto shall be enforced by the Bankruptcy
Court pursuant to the Plan. The parties hereby further acknowledge and agree
that the Bankruptcy Court shall have exclusive jurisdiction over the settlement
of the accounts of the Trustees.
9.15 EFFECTIVENESS. This Trust Agreement shall not become
effective until it has been executed and delivered by all the parties hereto.
9.16 COUNTERPART SIGNATURES. This Trust Agreement may be
executed in any number of counterparts, each of which shall constitute an
original, but such counterparts shall together constitute but one and the same
instrument.
[SIGNATURES APPEAR ON NEXT PAGE]
- 32 -
<PAGE> 33
CLOSING BINDER INDEX TAB NO. _____
IN WITNESS WHEREOF, the parties have executed this Trust
Agreement this _____ day of ______________________, 1997.
SETTLORS:
THE CELOTEX CORPORATION
BY: ________________________
Name: ________________________
Title:________________________
CAREY CANADA INC.
BY: ________________________
Name: ________________________
Title:________________________
TRUSTEES
-----------------------------
Name: Frank Andrews
-----------------------------
Name: John H. Laeri, Jr.
-----------------------------
Name: Francis E. McGovern
-----------------------------
Name: Sharon M. Meadows
-----------------------------
Name: James William Stevens
- 33 -
<PAGE> 34
CLOSING BINDER INDEX TAB NO. _____
LEGAL REPRESENTATIVE
-----------------------------
David S. Shrager, Esquire
- 34 -
<PAGE> 1
UNITED STATES BANKRUPTCY COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
IN RE:
Chapter 11
THE CELOTEX CORPORATION and Consolidated Case Nos.:
CAREY CANADA INC. 90-10016-8B1 and
Debtors. 90-10017-8B1
MODIFIED JOINT PLAN OF REORGANIZATION
UNDER CHAPTER 11 OF THE UNITED STATES BANKRUPTCY
CODE FOR THE CELOTEX CORPORATION AND CAREY CANADA INC.
<TABLE>
<S> <C>
YOUNG, CONAWAY, STARGATT & TAYLOR MONTGOMERY, MCCRACKEN, WALKER & RHOADS
James L. Patton, Jr. Stephen A. Madva
David W. O'Connor Baldo M. Carnecchia, Jr.
11th Floor, Rodney Square North Natalie D. Ramsey
P.O. Box 391 123 South Broad Street
Wilmington, Delaware 19899-0391 Philadelphia, Pennsylvania 19110
(302) 571-6684 (215) 772-1500
Co-Counsel for the Legal Representative Special Counsel for the Debtors
SALEM, SAXON & NIELSEN HONIGMAN MILLER SCHWARTZ AND COHN
Richard A. Nielsen Sheldon S. Toll
One Barnett Plaza 2290 First National Building
101 E. Kennedy Blvd., Suite 3200 660 Woodward Avenue
P.O. Box 3399 Detroit, Michigan 48226-3583
Tampa, Florida 33601 (313) 256-7800
(813) 224-9000 Counsel for the Asbestos Health
Co-Counsel for the Legal Representative Claimants Committee
JOHNSON, BLAKELY, POPE, BOKOR, RUPPEL BUSH ROSS GARDNER WARREN & RUDY, P.A.
& BURNS, P.A. Jeffrey W. Warren
Charles M. Tatelbaum H. Bradley Staggs
911 Chestnut Street 220 South Franklin Street
Clearwater, Florida 34616 Tampa, Florida 33602
(813) 461-1818 (813) 224-9255
Counsel for the Trade Creditors Committee Counsel for the Debtors
</TABLE>
Dated: October 21, 1996 (Includes Supplement To Modified Joint Plan of
Reorganization dated October 22, 1996 and
Supplemental Technical Modifications dated November
27, 1996)
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C> <C> <C>
ARTICLE 1
DEFINITIONS.................................1
ARTICLE 2
TREATMENT OF ADMINISTRATIVE
CLAIMS AND PRIORITY TAX CLAIMS
2.1 Administrative Claims....................................20
2.2 Priority Tax Claims......................................20
ARTICLE 3
CLASSIFICATION OF CLAIMS AND INTERESTS
3.1 Generally ...............................................21
3.2 Unclassified Claims .....................................21
3.3 Classes .................................................21
ARTICLE 4
TREATMENT OF CLAIMS AND INTERESTS
4.1 Unclassified Claims .....................................23
4.2 Classes Of Claims And Interests .........................23
ARTICLE 5
THE TRUST
5.1 Establishment And Purpose Of Trust ......................26
5.2 Receipt Of Trust Assets .................................27
5.3 Settlement Account .....................................27
</TABLE>
- i -
<PAGE> 3
<TABLE>
<S><C> <C>
5.4 Discharge Of Liabilities To Holders
Of Asbestos Claims ......................................27
5.5 Investment Guidelines ...................................27
5.6 Excess Trust Assets .....................................28
5.7 Trust Expenses ..........................................28
5.8 Selection Of The Initial Trustees .......................28
5.9 Advising The Trust ......................................28
ARTICLE 6
TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES
6.1 Assumption And Rejection Of Unexpired
Leases And Executory Contracts ..........................29
6.2 Rejected Unexpired Leases And
Executory Contracts .....................................29
6.3 Continuation Of Product Warranties ......................29
6.4 Damages Upon Rejection ..................................30
6.5 Assumption Of Corporate Indemnities .....................30
ARTICLE 7
ACCEPTANCE OR REJECTION OF THE PLAN
7.1 Each Impaired Class Entitled To Vote
Separately...............................................30
7.2 Acceptance By Impaired Classes Of Claims ................30
7.3 Acceptance Pursuant To Section 524(g)
Of The Bankruptcy Code ..................................31
7.4 Presumed Acceptance Of Plan .............................31
7.5 Confirmability And Severability Of The Plan..............31
ARTICLE 8
CONDITIONS TO CONFIRMATION AND EFFECTIVENESS
8.1 Conditions To Confirmation ..............................31
8.2 Conditions To Effectiveness .............................33
</TABLE>
- ii -
<PAGE> 4
<TABLE>
<S> <C> <C>
ARTICLE 9
IMPLEMENTATION OF THE PLAN
9.1 Trust Funding ...........................................34
9.2 Cancellation Of Existing Stock ..........................34
9.3 Issuance Of New Stock ...................................34
9.4 Transactions With Affiliates ............................35
9.5 Intercompany Claims And The
The Russellville Bond....................................35
9.6 Execution Of Other Documents ............................35
9.7 Certificate Of Incorporation And Bylaws .................36
9.8 Management Of Reorganized Celotex
And Reorganized Carey Canada ............................36
9.9 Compensation Programs ...................................36
9.10 Dissolution Of Celotex Inactive Subsidiaries ............36
9.11 Withholding Of Taxes ....................................36
9.12 Unclaimed Property.......................................36
9.13 Exoneration And Reliance.................................37
9.14 Plan Documents...........................................38
9.15 Plan Distributions ......................................38
9.16 Further Authorizations...................................38
9.17 Transfer Taxes ..........................................38
9.18 Recordable Order ........................................38
9.19 Effectuating Documents And Further
Transactions ............................................38
9.20 Corporate Action ........................................39
ARTICLE 10
INJUNCTIONS, RELEASES AND DISCHARGE
10.1 Discharge And Release ...................................39
10.2 Discharge Injunction ....................................40
10.3 The Supplemental Injunction, The Third Party
Injunction And The VPSA Injunction ......................40
10.4 Dismissal And Release Of Affiliate Action
And Equitable Subordination Action.......................44
10.5 Reservation Of Rights ...................................45
10.6 Rights Against Non-Debtors Under
Environmental Laws ......................................45
10.7 Disallowed Claims And Disallowed Interests...............45
</TABLE>
- iii -
<PAGE> 5
<TABLE>
<S> <C> <C>
ARTICLE 11
MATTERS INCIDENT TO PLAN CONFIRMATION
11.1 Term Of Certain Injunctions And
Automatic Stay ..........................................46
11.2 Certain Settled Matters Relating To
The Wellington Agreement ................................46
11.3 No Liability For Tax Claims .............................47
11.4 No Successor Liability...................................47
11.5 No Liability To The Jasper Parties
Or The Drummond Interests ...............................47
11.6 Asbestos Insurance Actions...............................47
11.7 Supersedeas Bond Actions.................................48
11.8 Indemnity Rights Against Dana............................49
11.9 Institution And Maintenance Of Legal
And Other Proceedings....................................49
11.10 Revesting................................................49
11.11 Retention And Enforcement Of Trust
Causes Of Action.........................................49
11.12 Preservation Of Insurance Claims.........................50
ARTICLE 12
RESOLUTION OF DISPUTED CLAIMS
12.1 Disputed Claims..........................................50
ARTICLE 13
MISCELLANEOUS
13.1 Jurisdiction.............................................51
13.2 General Retention........................................51
13.3 Specific Purposes........................................51
13.4 Interpretation of Certain Terms..........................53
13.5 Cooperation..............................................53
13.6 The Official Committees And
The Legal Representative ................................53
13.7 Revocation Of Plan.......................................54
13.8 Modification Of Plan.....................................54
13.9 Modification Of Payment Terms............................54
13.10 Entire Agreement.........................................54
13.11 Headings.................................................54
</TABLE>
- iv -
<PAGE> 6
<TABLE>
<S> <C> <C>
13.12 Administrative Claims Bar Date...........................54
13.13 Governing Law............................................55
13.14 Severability.............................................55
13.15 No Interest..............................................55
13.16 Limitation On Allowance..................................55
13.17 Estimated Claims ........................................55
13.18 Consent To Jurisdiction..................................55
13.19 Setoffs..................................................55
13.20 Successors And Assigns...................................56
13.21 Non-Debtor Waiver of Rights .............................56
13.22 Notices..................................................56
</TABLE>
- v -
<PAGE> 7
EXHIBITS
Exhibit 1 Trust Agreement
Exhibit 2 Assumed Executory Contracts and Unexpired Leases
Exhibit 3 Certificate of Incorporation of Reorganized Celotex
Exhibit 4 Bylaws of Reorganized Celotex
Exhibit 5 JWC Stock Purchase Agreement
Exhibit 6 Intentionally Omitted
Exhibit 7 Celotex Long-Term Incentive Plan
Exhibit 8 Executive Severance Agreement
Exhibit 9 Job Elimination Allowance Plan
Exhibit 10 Celotex Supplemental Retirement Plan
Exhibit 11 Executive Employment Agreement
Exhibit 12 Claims Agreement
- vi -
<PAGE> 8
MODIFIED JOINT PLAN OF REORGANIZATION
UNDER CHAPTER 11 OF THE UNITED STATES BANKRUPTCY
CODE FOR THE CELOTEX CORPORATION AND CAREY CANADA INC.
The Celotex Corporation, a Delaware corporation, and Carey
Canada Inc., a Canadian corporation, the Debtors and Debtors in Possession in
these Reorganization Cases, along with the Official Committee of Trade
Creditors, the Official Committee of Asbestos Health Claimants and the Legal
Representative for Unknown Asbestos Bodily Injury Claimants, propose this
Modified Joint Plan of Reorganization under Chapter 11 of the United States
Bankruptcy Code for The Celotex Corporation and Carey Canada Inc.
ARTICLE 1
DEFINITIONS
Unless the context requires otherwise, the following terms
shall have the following meanings when used in initially capitalized form in
the Plan. Such meanings shall be equally applicable to both the singular and
plural forms of such terms. Any term used in capitalized form that is not
defined in the Plan but that is defined in the Bankruptcy Code or the
Bankruptcy Rules shall have the meaning ascribed to such term by the Bankruptcy
Code or the Bankruptcy Rules (with the Bankruptcy Code controlling in the case
of a conflict or ambiguity). The rules of construction set forth in Section 102
of the Bankruptcy Code shall apply in construction of the Plan. All references
to the "Plan" herein shall be construed, where applicable, to include
references to this document and all its exhibits, appendices, schedules and
annexes (and any amendments thereto made in accordance with the Bankruptcy
Code).
1.1 "Administrative Claim" means any claim for the payment of
an Administrative Expense.
1.2 "Administrative Convenience Claim" means any Claim that
is classified as a Celotex Class 3 Claim or a Carey Canada Class 3 Claim, as
the case may be.
1.3 "Administrative Expense" means (a) any cost or expense of
administration of the Reorganization Cases under Section 503(b) of the
Bankruptcy Code including, but not limited to (1) any actual and necessary
postpetition cost or expense of preserving the Estates or operating the
businesses of the Debtors, (2) any payment to be made under the Plan to cure a
default on an assumed executory contract or unexpired lease, (3) any
postpetition cost, indebtedness or contractual obligation duly and validly
incurred or assumed by the Debtors in the ordinary course of business, and (4)
compensation or reimbursement of expenses of professionals to the extent
allowed by the Bankruptcy Court under Sections 330(a) or 331 of the Bankruptcy
Code, and (b) any fee or charge assessed against the Estates under 28 U.S.C.
Section 1930.
<PAGE> 9
1.4 "Affiliate" shall have the meaning ascribed to such term
in Section 101(2) of the Bankruptcy Code.
1.5 "Affiliate Action" means that suit brought on July 21,
1995 by the Asbestos Property Damage Claimants Committee and the Asbestos
Health Claimants Committee against the Jasper Parties, JWC, CAE, JWIC, Walter
F. Johnsey and William B. Long in the District Court alleging certain
preference and fraudulent conveyance causes of action.
1.6 "Affiliate Asset Purchase Agreements" mean the Affiliate
Asset Purchase Agreements as described in Article 9.4 of the Plan, which
agreements shall contain substantially those terms and conditions acceptable to
the Plan Proponents contained in the agreements filed with the Bankruptcy Court
on or before the Plan Documents Filing Date.
1.7 "Aggregate Claims Amount" means, with respect to any
Class or Classes of Claims, the total amount of Claims (including estimated
amounts of any unliquidated, contingent or Disputed Claims, but excluding
disallowed Claims) in such Class or Classes.
1.7A "Agreement Regarding Disputed Claims" means the
agreement to be entered into by and among Celotex, Carey Canada and the Trust.
1.8 "Allied" means Allied Chemical Corporation, subsequently
known as Allied Corporation, and its parent, AlliedSignal, Inc., as the context
requires.
1.9 "Allowed" means, with respect to any Claim (other than a
Disputed Claim, an Asbestos Claim or a Bonded Claim) or Interest, (a) any Claim
or Interest, proof of which was timely filed with the Bankruptcy Court or its
duly appointed claims agent, or, by order of the Bankruptcy Court, was not
required to be filed, or (b) any Claim or Interest that has been, or hereafter
is, listed in the Schedules as liquidated in amount and not disputed or
contingent, and, in (a) and (b) above, as to which either (1) no objection to
the allowance thereof has been filed within the applicable period of limitation
fixed by the Plan, the Bankruptcy Code, the Bankruptcy Rules or the Bankruptcy
Court or (2) the Claim or Interest has been allowed by a Final Order (but only
to the extent so allowed). "Allowed" means, with respect to any Asbestos Claim
other than a Bonded Claim, any Asbestos Claim that is liquidated and allowed
pursuant to the applicable Asbestos Claims Resolution Procedures or, if
applicable, pursuant to a Final Order of the Bankruptcy Court (but only to the
extent so allowed). "Allowed" means, with respect to any Bonded Claim, any
Claim that qualifies as a Bonded Claim under the applicable definitions of the
Plan, but only to the extent the Claim so qualifies. An Asbestos Claim that is
"Allowed" shall constitute a final, non-appealable judgment against the Trust
as successor to the liabilities of Celotex or Carey Canada, as appropriate.
1.10 "Allowed Amount" means the dollar amount in which a
Claim is Allowed.
1.11 "Apache" means Apache Products Company, a Florida
corporation.
- 2 -
<PAGE> 10
1.12 "Asbestos Claim" means any Asbestos Personal Injury
Claim or Asbestos Property Damage Claim.
1.13 "Asbestos Claims Resolution Procedures" means the
Asbestos Personal Injury Claims Resolution Procedures and the Asbestos Property
Damage Claims Resolution Procedures (or either of them), substantially in the
form attached to the Trust Agreement.
1.14 "Asbestos Health Claimants Committee" means the Official
Committee of Asbestos Health Claimants appointed in the Reorganization Cases by
the United States Trustee.
1.15 "Asbestos In-Place Insurance Coverage" means any
insurance coverage, not reduced to Cash settlement proceeds, available for the
payment or reimbursement of liability, indemnity or defense costs arising from
or related to Asbestos Claims or Trust Expenses under any Asbestos Insurance
Policy or any Asbestos Insurance Settlement Agreement.
1.16 "Asbestos Insurance Action" means any claim, cause of
action, or right of Celotex, Reorganized Celotex, Carey Canada, or Reorganized
Carey Canada against any Asbestos Insurance Company, arising from or related
to: (a) any such Asbestos Insurance Company's failure to provide or pay under
Asbestos In-Place Insurance Coverage, (b) the refusal of any Asbestos Insurance
Company to compromise and settle any Asbestos Claim under or pursuant to any
Asbestos Insurance Policy, or (c) the interpretation or enforcement of the
terms of any Asbestos Insurance Policy with respect to any Asbestos Claim.
1.17 "Asbestos Insurance Action Recoveries" means (a) certain
Cash derived from and paid pursuant to Asbestos Insurance Settlement Agreements
entered into prior to the Confirmation Hearing, (b) the right to receive
proceeds of Asbestos In-Place Insurance Coverage, and (c) the right to receive
the proceeds or benefits of any Asbestos Insurance Action.
1.18 "Asbestos Insurance Company" means any insurance
company, insurance broker, guaranty association or any other Entity with
liability under an Asbestos Insurance Policy.
1.19 "Asbestos Insurance Policy" means any insurance policy
in effect at any time on or before the Effective Date naming the Debtors (or
any predecessor, subsidiary, or past or present Affiliate of the Debtors) as an
insured, or otherwise affording the Debtors indemnity or insurance coverage,
upon which any claim has been or may be made with respect to any Asbestos
Claim.
1.20 "Asbestos Insurance Settlement Agreement" means any
settlement agreement with a Settling Asbestos Insurance Company relating to any
Asbestos Claim.
1.21 "Asbestos Personal Injury Claim" means (a) any claim or
demand (including, but not limited to, any Claim or Demand) whenever and
wherever arising or
- 3 -
<PAGE> 11
asserted against the Debtors, their predecessors, successors, subsidiaries or
Affiliates, or their present or former officers, directors or employees and (b)
any debt, obligation or liability (whether or not reduced to judgment,
liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed,
undisputed, legal, equitable, secured or unsecured), whenever and wherever
arising or asserted, of the Debtors, their predecessors, successors,
subsidiaries or Affiliates, or their present or former officers, directors or
employees (including, but not limited to, all thereof in the nature of or
sounding in tort, contract, warranty, or any other theory of law, equity or
admiralty); in either case (a) or (b) for, relating to, or arising by reason
of, directly or indirectly, physical, emotional, bodily or other personal
injury or damages (including, but not limited to, any claim or demand for
compensatory damages, loss of consortium, proximate, consequential, general,
special or punitive damages, reimbursement, indemnity, warranty, contribution
or subrogation) whether or not diagnosable before the Confirmation of the Plan
or the close of the Reorganization Cases, caused or allegedly caused, in whole
or in part, directly or indirectly, by asbestos or asbestos-containing
products, whether or not arising or allegedly arising, directly or indirectly,
from acts or omissions of the Debtors, their predecessors, subsidiaries or
Affiliates, or their present or former officers, directors or employees, or any
other Entity for or with which the Debtors or their successors are or may be
liable, including, but not limited to, Indirect Asbestos Claims arising from or
relating to Asbestos Personal Injury Claims, Bonded Asbestos Personal Injury
Claims and Wellington Claims.
1.22 "Asbestos Personal Injury Claims Resolution Procedures"
means the Asbestos Personal Injury Claims Resolution Procedures substantially
in the form attached to the Trust Agreement.
1.23 "Asbestos Personal Injury Expenses" means all costs,
taxes and expenses of or imposed on the Trust attributable or allocable to
Asbestos Personal Injury Claims, including, but not limited to, trustee
compensation, employee compensation, insurance premiums, legal, accounting and
other professional fees and expenses, overhead, disbursements, and expenses
relating to the implementation of the Asbestos Personal Injury Claims
Resolution Procedures, but excluding payments to holders of Asbestos Personal
Injury Claims on account of such Claims or reimbursements of such payments.
1.24 "Asbestos Property Damage Claim" means (a) any claim
(including, but not limited to, any Claim) whenever and wherever arising or
asserted against the Debtors, their predecessors, successors, subsidiaries or
Affiliates, or their present or former officers, directors or employees and (b)
any debt, obligation or liability (whether or not reduced to judgment,
liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed,
undisputed, legal, equitable, secured or unsecured), whenever and wherever
arising or asserted, of the Debtors, their predecessors, successors,
subsidiaries or Affiliates, or their present or former officers, directors or
employees (including, but not limited to, all thereof in the nature of or
sounding in tort, contract, warranty, or any other theory of law, equity or
admiralty); in either case (a) or (b) for, relating to, or arising by reason
of, directly or indirectly, property damage (including, but not limited to,
diminution in the value thereof) or economic loss related thereto (including,
but not limited to, any claim for compensatory damages, proximate,
consequential, general, special or punitive damages, reimbursement,
- 4 -
<PAGE> 12
indemnity, warranty, contribution or subrogation) caused or allegedly caused,
in whole or in part, directly or indirectly, by the presence of asbestos or
asbestos-containing products in or on buildings or other property, whether or
not arising or allegedly arising, directly or indirectly, from acts or
omissions of the Debtors, their predecessors, subsidiaries or Affiliates, or
their present or former officers, directors or employees, or any other Entity
for or with which the Debtors or their successors are or may be liable,
including, but not limited to, Indirect Asbestos Claims arising from or
relating to Asbestos Property Damage Claims.
1.25 "Asbestos Property Damage Claimants Committee" means the
Official Committee of Asbestos Property Damage Claimants appointed in the
Reorganization Cases by the United States Trustee.
1.26 "Asbestos Property Damage Claims Resolution Procedures"
means the Asbestos Property Damage Claims Resolution Procedures substantially
in the form attached to the Trust Agreement.
1.27 "Asbestos Property Damage Expenses" means all costs,
taxes and expenses of or imposed on the Trust attributable or allocable to
Asbestos Property Damage Claims, including, but not limited to, Property Damage
Claims Administrator compensation, employee compensation, insurance premiums,
legal, accounting, and other professional fees and expenses, overhead,
disbursements, and expenses relating to the implementation of the Asbestos
Property Damage Claims Resolution Procedures, but excluding payments to holders
of Asbestos Property Damage Claims on account of such Claims or reimbursements
of such payments.
1.28 "Bankruptcy Code" means title 11 of the United States
Code, 11 U.S.C. Sections 101, et seq., as in effect on the Petition Date,
together with all amendments and modifications thereto that were subsequently
made applicable to the Reorganization Cases.
1.29 "Bankruptcy Court" means the United States Bankruptcy
Court for the Middle District of Florida, Tampa Division, or, as the context
requires, the District Court.
1.30 "Bankruptcy Rules" means the Federal Rules of Bankruptcy
Procedure and the local rules of the Bankruptcy Court, as in effect on the
Petition Date, together with all amendments and modifications thereto that were
subsequently made applicable to the Reorganization Cases.
1.31 "Bond Sureties/Insurers" means Century Indemnity Company
as successor to CIGNA Specialty Insurance Company (formerly known as California
Union Insurance Company), Insurance Company of North America, Home Insurance
Company, Home Indemnity Company, Allstate Insurance Company (successor in
interest to Northbrook Excess & Surplus Insurance Company), Northbrook Property
and Casualty Insurance Company, National Union Fire Insurance Company of
Pittsburgh, PA and Aetna Casualty and Surety Company.
- 5 -
<PAGE> 13
1.32 "Bonded Asbestos Personal Injury Claim" means any
Asbestos Personal Injury Claim relating to a judgment as to which, but only to
the extent that, a supersedeas bond was posted by the Debtors, provided and to
the extent that the Bankruptcy Court determines by Final Order, or the Trustees
and the holder of such Bonded Asbestos Personal Injury Claim agree, that such
holder is entitled to some or all of (a) the proceeds of the supersedeas bond,
as such supersedeas bond may be increased by the Debtors pursuant to Final
Order of the Bankruptcy Court, or (b) any other assets provided by the Debtors
pursuant to Final Order of the Bankruptcy Court to protect such holder.
1.33 "Bonded Claim" means any Bonded Asbestos Personal Injury
Claim or Bonded Non-Asbestos Claim.
1.34 "Bonded Non-Asbestos Claim" means any Claim other than
an Asbestos Claim relating to a judgment as to which, but only to the extent
that, a supersedeas bond was posted by the Debtors, provided and to the extent
that the Bankruptcy Court determines by Final Order, that the holder of such
Claim is entitled to some or all of (a) the proceeds of the supersedeas bond,
as such supersedeas bond may be increased by the Debtors pursuant to Final
Order of the Bankruptcy Court, or (b) any other assets provided by the Debtors
pursuant to Final Order of the Bankruptcy Court to protect such holder.
1.35 "Business Day" means any day other than a Saturday,
Sunday or legal holiday (as such term is defined in Bankruptcy Rule 9006(a)).
1.36 "CAE" means Center for Applied Engineering, Inc., a
Delaware corporation.
1.37 "Carey Canada" means Carey Canada Inc., a Canadian
corporation, a Debtor and Debtor in Possession in these Reorganization Cases.
1.38 "Carey Canada Cash" means all Cash of Carey Canada
(other than the Restricted Carey Canada Cash and Cash otherwise to be
distributed pursuant to the Plan) that would be shown on its balance sheet,
prepared in accordance with generally accepted accounting principles as of the
Effective Date, less the amount of working capital deemed necessary by the Plan
Proponents on the Effective Date.
1.39 "Cash" means lawful currency of the United States of
America and its equivalents.
1.40 "Celotex" means The Celotex Corporation, a Delaware
corporation, a Debtor and Debtor in Possession in these Reorganization Cases.
1.41 "Celotex Cash" means all Cash of Celotex (other than the
Restricted Celotex Cash and Cash otherwise to be distributed pursuant to the
Plan) that would be shown on its balance sheet, prepared in accordance with
generally accepted accounting principles as of the Effective Date, less the
amount of working capital deemed necessary by the Plan Proponents on the
Effective Date.
- 6 -
<PAGE> 14
1.42 "Celotex Inactive Subsidiaries" means Jim Walter Export,
Inc., a Delaware corporation, Insul-Coustic Corporation, a New Jersey
corporation, Big Horn Gypsum Company, a Delaware corporation, Alger-Sullivan
Company, a Florida corporation, Jim Walter Transportation Corporation, a
Delaware corporation, and Celotex-Canada, Inc., a Canadian corporation.
1.43 "Celotex Long-Term Incentive Plan" means the agreement,
substantially in the form attached to the Plan as Exhibit 7, regarding certain
compensation of certain executives.
1.44 "Celotex Supplemental Retirement Plan" means the
agreement, substantially in the form attached to the Plan as Exhibit 10,
regarding the retirement benefits of certain executives.
1.45 "Claim" shall have the meaning ascribed to such term in
Section 101(5) of the Bankruptcy Code, and shall include, but not be limited
to, Asbestos Claims and interests other than Interests.
1.46 "Claims Agreement" means the agreement, substantially in
the form attached to the Plan as Exhibit 12, regarding the treatment of certain
Claims held by certain of the Consolidated Affiliates and Apache.
1.47 "Class" means a category of Claims or Interests, as
classified in Article 3 of the Plan.
1.48 "Compensation Programs" means the Celotex Long-Term
Incentive Plan, the Executive Employment Agreements, the Executive Severance
Agreement, the Job Elimination Allowance Plan and the Celotex Supplemental
Retirement Plan, or any similar type of program.
1.49 "Confirmation" or "Confirmation of the Plan" means the
approval of the Plan by the Bankruptcy Court at the Confirmation Hearing.
1.50 "Confirmation Date" means the date on which the
Confirmation Order is entered on the docket of the Bankruptcy Court.
1.51 "Confirmation Hearing" means the hearing(s) which will
be held before the Bankruptcy Court in which the Plan Proponents will seek
Confirmation of the Plan.
1.52 "Confirmation Order" means the order of the Bankruptcy
Court confirming the Plan pursuant to Section 1129 and other applicable
sections of the Bankruptcy Code.
1.53 "Consolidated Affiliates" means JWC, JWIC, CAE and MMI
(and their subsidiaries, if any, including Celotex and its subsidiaries).
- 7 -
<PAGE> 15
1.54 "Dana" means Dana Corporation, a Delaware corporation.
1.55 "Dana Liabilities" means the liabilities or other
obligations of Dana to the Debtors for certain Asbestos Personal Injury Claims
and Asbestos Property Damage Claims arising from the liabilities of Smith &
Kanzler Company, based upon several corporate transactions occurring between
1964 and 1972 and the application of various legal theories, including, but not
limited to, indemnification, relating to such corporate transactions or any
product manufactured, sold or installed by, or actions or omissions of Smith &
Kanzler Company.
1.56 "Debtors" means Celotex and Carey Canada (or either of
them).
1.57 "Debtors in Possession" means Celotex and Carey Canada
(or either of them), as debtors in possession.
1.58 "Demand" means a demand for payment, present or future,
that (a) was not a Claim during the Reorganization Cases, (b) arises out of the
same or similar conduct or events that gave rise to Asbestos Personal Injury
Claims and (c) pursuant to the Plan is to be paid by the Trust.
1.59 "Disbursing Agent" means Reorganized Celotex or any
Person selected by Reorganized Celotex (with approval of the Bankruptcy Court),
as agent of the Bankruptcy Court, to hold and distribute the consideration to
be distributed to the holders of Allowed Claims (other than Allowed Asbestos
Claims) under the Plan.
1.60 "Discharge Injunction" means the injunction described in
Article 10.2 of the Plan.
1.61 "Disclosure Statement" means the Disclosure Statement
With Respect To The Modified Joint Plan Of Reorganization Under Chapter 11 Of
The United States Bankruptcy Code For The Celotex Corporation And Carey Canada
Inc., dated October 21, 1996, including all exhibits, appendices, schedules and
annexes attached thereto, as submitted by the Plan Proponents pursuant to
Section 1125 of the Bankruptcy Code and approved by the Bankruptcy Court, as
such Disclosure Statement may be further amended, supplemented or modified from
time to time.
1.62 "Disputed Claim" means any Claim (other than an Asbestos
Claim that is not a Bonded Claim) that has not been allowed by a Final Order as
to which (a) a Proof of Claim has been filed with the Bankruptcy Court or its
duly appointed claims agent, or is deemed filed under applicable law or order
of the Bankruptcy Court, and (b) an objection has been or may be timely filed
or deemed filed under applicable law and any such objection has not been (1)
withdrawn, (2) overruled or denied by a Final Order or (3) granted by a Final
Order. For purposes of the Plan, a Claim that has not been Allowed by a Final
Order shall be considered a Disputed Claim, whether or not an objection has
been or may be timely filed, if (A) the amount of the Claim specified in the
Proof of Claim exceeds the amount of any corresponding Claim scheduled in the
Schedules, (B) the classification of the Claim specified
- 8 -
<PAGE> 16
in the Proof of Claim differs from the classification of any corresponding
Claim scheduled in the Schedules, (C) any corresponding Claim has been
scheduled in the Schedules as disputed, contingent or unliquidated, (D) no
corresponding Claim has been scheduled in the Schedules or (E) such Claim is
reflected as unliquidated or contingent in the Proof of Claim filed in respect
thereof.
1.63 "Distribution Date," when used with respect to an
Allowed Claim (other than an Asbestos Claim that is not a Bonded Claim), means
the date which is as soon as reasonably practicable after the later of: (a) the
Effective Date, and (b) the first Business Day of the next calendar quarter
after the date upon which the Claim becomes Allowed, unless the Claim becomes
Allowed within fifteen Business Days before the first Business Day of the next
calendar quarter, in which case the Distribution Date shall be the first
Business Day of the next succeeding calendar quarter.
1.64 "District Court" means the United States District Court
for the Middle District of Florida, Tampa Division, or the unit thereof having
jurisdiction over the matter in question.
1.65 "Drummond Company" means the Drummond Company, Inc., a
Delaware corporation.
1.66 "Drummond Interests" means Jasper, Apache, Drummond
Company, their respective subsidiaries and affiliates, G.N. Drummond, Sr., E.A.
Drummond, Walter F. Johnsey, William B. Long and all of the past and present
officers and shareholders of Jasper or Drummond Company, as well as the
employees, agents, trustees, beneficiaries and directors of Jasper, JWC,
Apache, Drummond Company and any of their respective subsidiaries or affiliates
other than Dana, Rapid-American and Allied.
1.67 "Effective Date" means, and shall occur on, the first
Business Day immediately following the first day upon which all of the
conditions to occurrence of the Effective Date contained in Article 8.2 of the
Plan have been satisfied or waived pursuant to Article 8.2.
1.68 "Employee Benefit Plan" means any employment, pension,
medical, surgical, hospital, dental, healthcare, bonus, incentive compensation,
retirement, savings, workers' compensation or other benefit or severance plan
or arrangement for the benefit of the directors, officers or employees (both
active and retired) of the applicable Debtor, but excluding the Compensation
Programs.
1.69 "Employee Benefit Plan Claim" means any Claim that is
neither secured nor entitled to priority under the Bankruptcy Code or a Final
Order of the Bankruptcy Court, arising from or relating to an Employee Benefit
Plan.
1.70 "Entity" means any Person, estate, trust, Governmental
Unit, or the United States Trustee.
- 9 -
<PAGE> 17
1.71 "Environmental Claim" means any Claim, other than an
Asbestos Claim, asserted by any Entity, arising out of, or related to, any
Environmental Law, including, but not limited to, any Claim: (a) to restrict or
enjoin, or recover damages, costs or expenses to remedy any release,
environmental pollution, contamination or nuisance or to require the Debtors or
the Consolidated Affiliates to remedy or to reimburse, pay or incur costs to
remedy any release, environmental pollution, contamination or any nuisance, (b)
to remedy, reimburse, compensate or pay any damage, penalty, fine or forfeiture
for, or to restrict or enjoin any violation of or alleged violation of, any
Environmental Law, (c) to pay any contractual claim with respect to any
Environmental Law or (d) to pay or reimburse any Entity for personal injury
(including worker's compensation, sickness, disease or death), tangible or
intangible property damage or natural resource damage arising out of, or
relating to, any release, environmental pollution, contamination or nuisance,
whether or not contemplated in paragraphs (a) through (c) above, including, but
not limited to, any related Indirect Non-Asbestos Claim.
1.72 "Environmental Laws" means (a) the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended by
the Superfund Amendments and Reauthorization Act of 1986, 42 U.S.C. Sections
9601, et seq., (b) the Resource Conservation and Recovery Act, as amended by
the Hazardous and Solid Waste Amendment of 1984, 42 U.S.C. Sections 6901, et
seq., (c) the Clean Air Act, 42 U.S.C. Sections 7401, et seq., (d) the Clean
Water Act of 1977, 33 U.S.C. Sections 1251, et seq., (e) the Toxic Substances
Control Act, 15 U.S.C. Sections 2601, et seq., (f) all statutes or laws issued
or promulgated by any Governmental Unit, as they may be amended from time to
time, relating to environmental contamination or pollution, air pollution, water
pollution, noise control and/or the handling, discharge, existence, release,
disposal or recovery of on-site or off-site hazardous, toxic or dangerous
wastes, substances, chemicals or materials, and (g) the ordinances, rules,
regulations, orders, notices of violation, requests, demands and requirements
issued or promulgated by any Governmental Unit in connection with such statutes
or laws.
1.73 "Equitable Subordination Action" means that suit brought
on February 20, 1996 by the Legal Representative against JWC, JWIC, CAE, Apache
and JWC Holdings in the Bankruptcy Court alleging that the Claims of those
parties should be equitably subordinated pursuant to Section 510 of the
Bankruptcy Code.
1.74 "Estate" means, as to each Debtor, the estate created
for that Debtor by Section 541 of the Bankruptcy Code upon the commencement of
its Reorganization Case.
1.75 "Executive Employment Agreement" means that agreement,
substantially in the form attached to the Plan as Exhibit 11, regarding the
employment of certain executives.
1.76 "Executive Severance Agreement" means that agreement,
substantially in the form attached to the Plan as Exhibit 8, regarding certain
executive severance benefits.
- 10 -
<PAGE> 18
1.77 "Existing Carey Canada Stock" means the shares of the
common stock of Carey Canada held by Celotex, Cdn $100 par value, issued by
Carey Canada and outstanding on the Petition Date.
1.78 "Existing Celotex Stock" means (a) the shares of the
common stock of Celotex held by JWC, no par value, issued by Celotex and
outstanding on the Petition Date, and (b) the shares of redeemable preferred
stock ($5,137,000 aggregate liquidation preference) held by JWC, no par value,
issued by Celotex and outstanding on the Petition Date.
1.79 "Final Order" means an order, the implementation,
operation or effect of which has not been stayed and as to which order (or any
revision, modification or amendment thereof) the time to appeal or seek review,
rehearing or writ of certiorari has expired and as to which no appeal or
petition for review, rehearing or certiorari has been taken and is pending.
1.80 "Financial Accommodations" means the credit facilities,
capital notes or other obligations entered into by Celotex with the Trust and,
if necessary, with third party lenders.
1.81 "Governmental Unit" means any domestic, foreign,
provincial, federal, state, local or municipal (a) government, or (b)
governmental agency, commission, department, bureau, ministry or other
governmental entity.
1.82 "HHC" means Hillsborough Holdings Corporation, a
Delaware corporation, now known as Walter Industries, Inc.
1.83 "Indirect Asbestos Claim" means any Asbestos Personal
Injury Claim or Asbestos Property Damage Claim for contribution, reimbursement,
subrogation or indemnity (as those terms are defined by the non-bankruptcy law
of any relevant jurisdiction) and any other derivative or indirect Asbestos
Personal Injury Claim or Asbestos Property Damage Claim of any kind whatsoever,
whether in the nature of or sounding in contract, tort, warranty or any other
theory of law, equity or admiralty. Indirect Asbestos Claims shall expressly
include Claims asserted by Rapid-American or Allied, all Wellington Claims and
all deductibles, retrospective premium adjustments or other charges relating to
any Asbestos Insurance Policy.
1.84 "Indirect Non-Asbestos Claim" means any Claim (other
than an Asbestos Claim) based on a right of contribution, reimbursement,
subrogation or indemnity (as those terms are defined by the non-bankruptcy law
of any relevant jurisdiction) and any other derivative or indirect Claim (other
than an Asbestos Claim) of any kind whatsoever, whether in the nature of or
sounding in contract, tort, warranty or any other theory of law, equity or
admiralty. Indirect Non-Asbestos Claims do not include any Wellington Claims.
1.85 "Initial Payment Percentage" means 12% or such other
Payment Percentage as the Trustees shall determine in accordance with the Trust
Agreement.
- 11 -
<PAGE> 19
1.86 "Injunctions" means the Discharge Injunction, the
Supplemental Injunction, the Third Party Injunction, the VPSA Injunction, and
any other injunctions entered by Order of the Bankruptcy Court in these cases.
1.87 "Insurance Cooperation Agreements" means the (a)
Insurance Cooperation Agreement to be entered into by and among JWC,
Reorganized Celotex and Reorganized Carey Canada, and (b) the Agreement to be
entered into by and among the Trust, the Legal Representative, the Property
Damage Claims Administrator, the PD Advisory Committee and the members of the
Trust Advisory Committee.
1.88 "Intercompany Claim" means any Claim held by the
Consolidated Affiliates (or any one of them) against the Debtors, including any
Claim held by one Debtor against another Debtor.
1.89 "Interest" means any equity interest in the Debtors
represented by the Existing Celotex Stock or the Existing Carey Canada Stock.
1.90 "IRC" means the Internal Revenue Code of 1986, as
amended.
1.91 "Jasper" means Jasper Corp., a Delaware corporation.
1.92 "Jasper Parties" means Jasper, Apache and JWC Holdings
(or any one or more of them).
1.93 "Job Elimination Allowance Plan" means the agreement,
substantially in the form attached to the Plan as Exhibit 9, regarding the job
elimination benefits for certain employees.
1.94 "JWC" means Jim Walter Corporation, a Florida
corporation.
1.95 "JWC Holdings" means JWC Holdings Corporation, formerly
a Florida corporation that was dissolved on August 11, 1995.
1.96 "JWC Stock Purchase Agreement" means the JWC Stock
Purchase Agreement, to be effective on or shortly after the Effective Date,
substantially in the form of Exhibit 5 attached hereto or such other form as is
acceptable to the Plan Proponents and Jasper, which final agreement shall be
filed with the Bankruptcy Court on or before the Plan Documents Filing Date.
1.97 "JWIC" means Jim Walter International Corporation, a
Florida corporation.
1.98 "Legal Representative" means David S. Shrager, Esq., who
was appointed by the Bankruptcy Court pursuant to an Order dated February 13,
1995.
- 12 -
<PAGE> 20
1.99 "Lien" means, with respect to any asset or property, any
mortgage, lien, pledge, charge, security interest, encumbrance or other
security device of any kind pertaining to or affecting such asset or property.
1.100 "MMI" means Medical Marketplace International, Inc., a
Florida corporation.
1.101 "Official Committees" means the Asbestos Health
Claimants Committee, the Asbestos Property Damage Claimants Committee, and the
Trade Creditors Committee (or any one or more of them).
1.102 "Payment Percentage" means the percentage set pursuant
to Article 3.4(a) of the Trust Agreement and such term shall include the
Initial Payment Percentage.
1.103 "PD Advisory Committee" means that committee appointed
and serving in accordance with Article 5 of the Plan and having the powers,
duties and obligations set forth in the Trust Agreement.
1.104 "Person" means any person, individual, partnership,
corporation, limited liability company, joint venture company, association or
other entity or being of whatever kind, whether or not operating or existing
for profit, including, but not limited to, any "person" as such term is defined
in Section 101(41) of the Bankruptcy Code, but excluding any Governmental Unit.
1.105 "Petition Date" means October 12, 1990.
1.106 "Plan Documents" means all documents, attachments and
exhibits, including, but not limited to, the Trust Documents, the Agreement
Regarding Disputed Claims, the documents relating to the Financial
Accommodations, the Affiliate Asset Purchase Agreements, the JWC Stock Purchase
Agreement, the Insurance Cooperation Agreements, and the Tax Cooperation and
Indemnification Agreement, and any amendments thereto made in accordance with
the Bankruptcy Code, that aid in effectuating the Plan, which documents,
attachments and exhibits shall be filed by the Plan Proponents with the
Bankruptcy Court on or before the Plan Documents Filing Date.
1.107 "Plan Documents Filing Date" means the date for the
filing of the Plan Documents (or any of them) which shall be either (a) the
date, as determined by the Plan Proponents, that is as soon as practicable, but
that in no event is later than three calendar days before the commencement of
the Confirmation Hearing or (b) such other date (or dates) as determined by the
Bankruptcy Court.
1.108 "Plan Documents Review Center" means the offices of
Celotex located at 4010 Boy Scout Boulevard, Tampa, Florida 33607, at which any
party in interest may review all of the Plan Documents once such Plan Documents
are filed.
- 13 -
<PAGE> 21
1.109 "Plan Proponents" means the Debtors, the Legal
Representative, the Asbestos Health Claimants Committee and the Trade Creditors
Committee.
1.110 "Predecessor Settlement Agreements" means any agreement
approved by the Bankruptcy Court prior to the Confirmation Date with any
predecessor entities of the Debtors, including, but not limited to, Allied,
Dana and Rapid-American, in respect of the settlement or resolution of
asbestos-related liabilities.
1.111 "Prepetition Settlement and Bonding Agreements" means
the agreements listed as items 7, 8, 9 and 10 on Exhibit 2 of the Plan, which
agreements shall be assumed pursuant to the Plan.
1.112 "Priority Claim" means any Claim (other than an
Administrative Claim or a Priority Tax Claim) to the extent such Claim is
entitled to a priority in payment under Section 507(a) of the Bankruptcy Code.
1.113 "Priority Tax Claim" means any Claim to the extent that
such Claim is entitled to a priority in payment under Section 507(a)(7) of the
Bankruptcy Code.
1.114 "Pro Rata" means the same proportion an Allowed Claim
in a particular Class bears to the Aggregate Claims Amount of all Claims in
such Class.
1.115 "Proof of Claim" means any proof of claim filed with
the Bankruptcy Court or its duly appointed claims agent with respect to the
Debtors pursuant to Bankruptcy Rules 3001 or 3002.
1.116 "Property Damage Claims Administrator" means that
Person appointed and serving in accordance with Article 5 of the Plan and
having the powers, duties and obligations set forth in the Trust Agreement.
1.117 "Protected Party" means any of the following parties:
(a) the Debtors, Reorganized Celotex, Reorganized Carey
Canada, the Consolidated Affiliates, the Official Committees and the Legal
Representative, and any of their post-Confirmation Date officers, directors,
agents, employees, members, representatives, advisors, financial advisors,
accountants and attorneys;
(b) the Trust, and any of its Trustees, officers,
directors, agents, employees, representatives, advisors, financial advisors,
accountants and attorneys;
(c) any Entity that, pursuant to the Plan or after the
Confirmation Date, becomes a direct or indirect transferee of, or successor to,
any assets of the Debtors, Reorganized Celotex, Reorganized Carey Canada or the
Trust, provided, however, that this subsection (c) shall not render an Entity a
Protected Party solely by reason of such Entity's receipt of a transfer or
distribution (i) pursuant to the Plan on account of a Claim or Interest or (ii)
after the reorganization of the Debtors on account of a claim, demand or
interest;
- 14 -
<PAGE> 22
(d) any Entity that, pursuant to the Plan or after the
Confirmation Date, makes a loan to the Debtors, Reorganized Celotex,
Reorganized Carey Canada or the Trust or to a successor to, or transferee of,
any assets of the Debtors, Reorganized Celotex, Reorganized Carey Canada or the
Trust to the extent that liability is asserted to exist by reason of such
lending relationship or to the extent any Lien created in connection with such
a loan is sought to be challenged or impaired;
(e) at the option of the Plan Proponents, any other
Entity that may be or is alleged to be co-liable with the Debtors and provides
value to the Debtors or the Trust or any of the respective successors or
assigns thereof; and
(f) each Settling Asbestos Insurance Company named in
the Confirmation Order and each contributor of funds, proceeds or other
consideration under a Predecessor Settlement Agreement; provided, however,
except to the extent any of them qualify under subsection (f), Dana,
Rapid-American and Allied are not Protected Parties.
1.118 "Rapid-American" means Rapid-American, Inc., a Delaware
corporation.
1.119 "Released Party" means each of (a) the Debtors,
Reorganized Celotex, Reorganized Carey Canada and the Consolidated Affiliates,
any of their respective successors or assigns and each of their present and
former directors, officers, agents, attorneys, accountants, financial advisors,
investment bankers and employees, (b) the Official Committees, their members
and representatives, and the Legal Representative, (c) the professionals or
experts retained by any of the Debtors, the Official Committees or the Legal
Representative, (d) the designated representative (as defined in Section 7.1 of
the Settlement Agreement), (e) the Veil Piercing Claimants' Representative (as
defined in the VPSA), (f) the Settling Asbestos Insurance Companies named in
the Confirmation Order (but only to the extent such Settling Asbestos Insurance
Companies specifically contracted (i) to obtain the benefits of the
Supplemental Injunction or (ii) to be a Released Party), (g) the Jasper Parties
and the Drummond Interests, and (h) each contributor of funds, proceeds or
other consideration under a Predecessor Settlement Agreement; provided,
however, that except to the extent any of them qualify under subsection (h),
Dana, Rapid-American and Allied are not Released Parties.
1.120 "Reorganization Cases" means the cases currently
pending under Chapter 11 of the Bankruptcy Code of Celotex and Carey Canada
before the Bankruptcy Court.
1.121 "Reorganized Carey Canada" means Carey Canada on and
after the Effective Date as reorganized pursuant to the Plan.
1.122 "Reorganized Carey Canada Common Stock" means all of
the issued and outstanding shares of common stock of Reorganized Carey Canada.
- 15 -
<PAGE> 23
1.123 "Reorganized Celotex" means Celotex on and after the
Effective Date as reorganized pursuant to the Plan.
1.124 "Reorganized Celotex Common Stock" means all of the
issued and outstanding shares of common stock of Reorganized Celotex.
1.125 "Restricted Carey Canada Cash" means all Cash that
would be shown on a balance sheet, prepared in accordance with generally
accepted accounting principles, of Carey Canada as of the Effective Date that
is restricted for specific uses including, but not limited to, environmental
remediation collateral requirements, workers' compensation program collateral
requirements and loss reserves, casualty insurance program collateral
requirements and loss reserves and tax liability escrow requirements.
1.126 "Restricted Celotex Cash" means all Cash that would be
shown on a balance sheet, prepared in accordance with generally accepted
accounting principles, of Celotex as of the Effective Date that is restricted
for specific uses including, but not limited to, environmental remediation
collateral requirements, workers' compensation program collateral requirements
and loss reserves, casualty insurance program collateral requirements and loss
reserves and tax liability escrow requirements.
1.127 "Russellville Bond" means that Industrial Revenue Bond
held by JWC in the approximate current amount of $9.0 million, issued in 1981
by the Industrial Development Board of the City of Russellville, Alabama to
fund construction of Celotex's manufacturing facility located in Russellville,
Alabama.
1.128 "Schedules" means the Schedules, Statements and Lists
filed by the Debtors with the Bankruptcy Court pursuant to Bankruptcy Rule
1007, as they have been and may be amended or supplemented from time to time.
1.129 "Secured Claim" means any Claim that is (a) secured in
whole or part, as of the Petition Date, by a Lien which is valid, perfected and
enforceable under applicable law and is not subject to avoidance under the
Bankruptcy Code or applicable non-bankruptcy law, or (b) subject to setoff
under Section 553 of the Bankruptcy Code, but, with respect to both (a) and (b)
above, only to the extent of the value, net of any senior Lien, of the
particular Estate's interest in the assets or property securing any such Claim
or the amount subject to setoff, as the case may be.
1.130 "Settlement Account" means the segregated, custodial
account at Bank of America Illinois designated by Order of the Bankruptcy Court
dated March 30, 1995 as the Celotex Settlement Fund Recipient (as defined in
the VPSA), which Settlement Account was established to receive the Veil
Piercing Settlement Fund and is a qualified settlement fund pursuant to Section
468B of the IRC and the regulations issued pursuant thereto.
1.131 "Settling Asbestos Insurance Company" means any
Asbestos Insurance Company that enters into an Asbestos Insurance Settlement
Agreement that is sufficiently comprehensive in the determination of the Plan
Proponents.
- 16 -
<PAGE> 24
1.132 "Supersedeas Bond Action" means any claim, cause of
action or right of Celotex, Reorganized Celotex, Carey Canada or Reorganized
Carey Canada against any holder of a Bonded Claim or any Bond Surety/Insurer,
arising from or related to any supersedeas bond posted in favor of a holder of
a Bonded Claim, including, but not limited to, all claims, causes of action or
rights arising from or related to the Supersedeas Bond Adversary Proceeding.
1.133 "Supersedeas Bond Adversary Proceeding" means the
adversary proceeding commenced by the Debtors in the Bankruptcy Court captioned
The Celotex Corporation, et al. v. Allstate Insurance Company et al., Adversary
Proceeding No. 92-584.
1.134 "Supersedeas Bond Recoveries" means the property,
rights and assets of the Debtors used (a) to secure or obtain any supersedeas
bond posted in favor of a holder of a Bonded Claim, or (b) pursuant to Order of
the Bankruptcy Court dated May 29, 1992 to provide protection to a holder of a
Bonded Claim, in either case (a) or (b) remaining, if any, after satisfaction
of the underlying Allowed Bonded Claim.
1.135 "Supplemental Injunction" means the injunction
described in Article 10.3(a) of the Plan.
1.136 "Tax Cooperation and Indemnification Agreement" means
the agreement to be executed on the Effective Date among the Trust and the
corporations that are members of the Jasper consolidated group as of October
21, 1996, requiring, among other things, that any tax liabilities and refunds
attributable to implementation of the Plan be allocated among such
corporations.
1.137 "Tax Escrow Agreement" means the Escrow Agreement,
dated as of April 21, 1988, among HHC, Celotex, Jasper and Sun Bank of Tampa
Bay, as Escrow Agent.
1.138 "Tax Escrow Proceeds" means any proceeds or other funds
distributed pursuant to the Tax Escrow Agreement to Celotex or Reorganized
Celotex.
1.139 "Third Party Injunction" means the injunction described
in Article 10.3(b) of the Plan.
1.140 "Trade Creditors Committee" means the Official
Committee of Trade Creditors of the Debtors appointed in the Reorganization
Cases by the United States Trustee.
1.141 "Trust" means the trust established pursuant to the
Trust Agreement, which is a "qualified settlement fund" pursuant to Section
468B of the IRC and the regulations issued pursuant thereto.
1.142 "Trust Advisory Committee" means that committee
appointed and serving in accordance with Article 5 of the Plan and having the
powers, duties and obligations set forth in the Trust Agreement.
- 17 -
<PAGE> 25
1.143 "Trust Agreement" means that certain Settlement Trust
Agreement, effective as of the Confirmation of the Plan, substantially in the
form of Exhibit 1 attached hereto.
1.144 "Trust Assets" means, in addition to the assets in the
Settlement Account, the following assets and any income, profits and proceeds
derived from such assets subsequent to the transfer of such assets to the
Trust: (a) 100% of the common stock of each of Reorganized Celotex and
Reorganized Carey Canada, (b) directly or indirectly, 100% of the common stock
of JWC and the other Consolidated Affiliates, (c) the Celotex Cash, (d) the
proceeds or other consideration resulting or in any way derived from the
Financial Accommodations, (e) the Carey Canada Cash, (f) the Asbestos Insurance
Actions and the Asbestos Insurance Action Recoveries, (g) the Tax Escrow
Proceeds, (h) the Supersedeas Bond Action and the Supersedeas Bond Recoveries,
(i) the proceeds or other consideration resulting or in any way derived from
any Predecessor Settlement Agreement, (j) the Asbestos Insurance Settlement
Agreements, (k) the Trust Causes of Action, (l) any unclaimed property
described in Article 9.12 of the Plan, (m) the Insurance Cooperation Agreements
and (n) the certain benefits under the Tax Cooperation and Indemnification
Agreement.
1.145 "Trust Causes of Action" means any and all of the
Debtors' actions, claims, rights, defenses, counterclaims, suits and causes of
action (but excluding all Asbestos Insurance Actions), whether known or
unknown, in law, equity or otherwise, including, without limitation: (a) the
Debtors' rights against Dana (including, but not limited to, the Dana
Liabilities), Allied and Rapid-American, (b) avoidance actions granted pursuant
to and existing under Sections 502, 542, 543, 544, 545, 547, 548, 549, 550, 551
and 553 of the Bankruptcy Code (other than those which are released or
dismissed as part of and pursuant to the Plan, including those asserted in the
Affiliate Action and the Equitable Subordination Action), (c) rights of the
Debtors against any Entity in respect of the Wellington Agreement, (d) defenses
to any Asbestos Claim including, but not limited to, all defenses under Section
502 of the Bankruptcy Code, (e) rights of setoff, recoupment, contribution,
reimbursement, subrogation or indemnity (as those terms are defined by the
non-bankruptcy law of any relevant jurisdiction) and any other indirect claim
of any kind whatsoever, whenever and wherever arising or asserted and (f) any
other claims or rights with respect to Asbestos Claims that the Debtors would
have had under applicable law if the Reorganization Cases had not occurred and
the holder of such Asbestos Claim had asserted it by initiating civil
litigation against the Debtors.
1.146 "Trust Documents" means the Trust Agreement, the
Asbestos Claims Resolution Procedures and the other agreements, instruments and
documents governing the establishment, administration and operation of the
Trust, which shall be substantially in the form set forth in the Plan, as they
may be amended or modified from time to time in accordance with the Plan and
the Trust Agreement.
1.147 "Trust Expenses" means any of the Asbestos Personal
Injury Expenses and the Asbestos Property Damage Expenses, and any other
liabilities, costs or expenses of or imposed upon or in respect of the Trust
(except for payments to holders of Asbestos Claims on account of such Asbestos
Claims). "Trust Expenses" shall also expressly include any and
- 18 -
<PAGE> 26
all liabilities, costs and expenses incurred subsequent to the Confirmation of
the Plan in connection with the prosecution of any and all Asbestos Insurance
Actions and Supersedeas Bond Actions, whether or not any such action results in
a recovery for the Trust, and, claims for premiums (whether incurred, arising
or covering a period prior or subsequent to Confirmation of the Plan) for bonds
provided by the Bond Sureties/Insurers and any amounts which may be or become
due under or in connection with the Prepetition Settlement and Bonding
Agreements.
1.148 "Trustees" means the Persons appointed pursuant to
Article 5 of the Plan for the purpose of acting as trustees of the Trust in
accordance with the terms and conditions contained in the Trust Documents, the
Plan and the Confirmation Order.
1.149 "United States Trustee" means the United States Trustee
for the Middle District of Florida.
1.150 "Unsecured Claim" means any Claim (regardless of
whether such Claim is covered by insurance) that is neither secured nor
entitled to priority under the Bankruptcy Code or by a Final Order of the
Bankruptcy Court, including, but not limited to: (a) any claim arising from the
rejection of an executory contract or unexpired lease under Section 365 of the
Bankruptcy Code, and (b) any portion of a Claim to the extent the value of the
holder's interest in the applicable Estate's interest in the property securing
such Claim is less than the amount of the Claim, or to the extent that the
amount of the Claim subject to setoff is less than the amount of the Claim, as
determined pursuant to Section 506(a) of the Bankruptcy Code. "Unsecured
Claims" shall also expressly include (x) Environmental Claims, (y) Indirect
Non-Asbestos Claims and (z) Claims arising from the provision of goods or
services to the Debtors prior to the Petition Date, to the extent that such
Claims in (x), (y) and (z) above are neither secured nor entitled to priority
under the Bankruptcy Code or a Final Order of the Bankruptcy Court.
1.151 "Veil Piercing Claimants" shall have the meaning
ascribed to such term in the VPSA.
1.152 "Veil Piercing Settlement Fund" means that certain
settlement fund established under the VPSA for the exclusive benefit of the
Veil Piercing Claimants, which fund was distributed to the Settlement Account
in accordance with the VPSA and pursuant to Order of the Bankruptcy Court.
1.153 "VPSA" means that certain Second Amended and Restated
Veil Piercing Settlement Agreement, dated as of November 22, 1994, by and among
(a) HHC and other debtors in their administratively consolidated bankruptcy
cases 89-9715-8P1, et seq. previously pending in the Bankruptcy Court, (b)
certain creditors and creditor groups in that consolidated case, (c) Celotex
and the Official Committees, (d) certain asbestos defendants named as
defendants in Adversary Proceeding Nos. 90-0003 and 90-0004 filed in the
Bankruptcy Court, and (e) certain attorneys.
- 19 -
<PAGE> 27
1.154 "VPSA Injunction" means the injunction described in
Article 10.3(c) of the Plan.
1.155 "VPSA Released Parties" means those Entities listed in
part X of Appendix A of the VPSA.
1.156 "Wellington Agreement" means the Agreement Concerning
Asbestos-Related Claims dated as of June 19, 1985, by and between the Debtors
and various other parties, including the appendices thereto.
1.157 "Wellington Claims" means all Claims in connection
with, arising out of or relating to the Wellington Agreement, other than the
Wellington Credit Claims and the Wellington Prospective Adjustment Claims.
1.158 "Wellington Credit Claims" means the Asbestos Claims
and any other Claims arising from the additional adjustment for claims settled
between September 30, 1983 and the opening of the claims facility provided for
in Appendix A-1(B) of the Wellington Agreement.
1.159 "Wellington Prospective Adjustment Claims" means the
Asbestos Claims and any other Claims arising from the adjustment of subscribing
producer allocation percentages provided for in Appendix A-1(G) of the
Wellington Agreement.
ARTICLE 2
TREATMENT OF ADMINISTRATIVE
CLAIMS AND PRIORITY TAX CLAIMS
2.1 Administrative Claims. Each holder of an Allowed
Administrative Claim (except any holder that agrees to different treatment)
shall receive the Allowed Amount of its Administrative Claim, in Cash, in full
satisfaction, settlement, release, extinguishment and discharge of such Claim,
on the Distribution Date; provided, however, that Allowed Administrative Claims
representing (a) postpetition liabilities incurred in the ordinary course of
business by the Debtors and (b) postpetition contractual liabilities arising
under loans or advances to the Debtors, whether or not incurred in the ordinary
course of business, shall be paid by Reorganized Carey Canada or Reorganized
Celotex, as applicable, in accordance with the terms and conditions of the
particular transactions relating to such liabilities and any agreements
relating thereto.
2.2 Priority Tax Claims. Each holder of an Allowed Priority
Tax Claim (except any holder that agrees to different treatment) shall receive
the Allowed Amount of its Priority Tax Claim, in Cash, in full satisfaction,
settlement, release, extinguishment and discharge of such Claim on the
Distribution Date.
- 20 -
<PAGE> 28
ARTICLE 3
CLASSIFICATION OF CLAIMS AND INTERESTS
3.1 Generally. Pursuant to Section 1122 of the Bankruptcy
Code, set forth below is a designation of Classes of Claims and Interests. A
Claim or Interest is classified in a particular Class only to the extent that
the Claim or Interest qualifies within the description of the Class and is
classified in a different Class to the extent the Claim or Interest qualifies
within the description of that different Class.
3.2 Unclassified Claims. In accordance with Section
1123(a)(1) of the Bankruptcy Code, Administrative Claims and Priority Tax
Claims are not classified and are excluded from the following Classes. The
treatment accorded Administrative Claims and Priority Tax Claims is set forth
in Article 2 of the Plan.
3.3 Classes.
(a) Celotex Claims And Interests. The following
constitute the Classes of Claims against and Interests in Celotex:
(1) Celotex Class 1 - Celotex Priority Claims.
Celotex Class 1 consists of all Priority Claims against Celotex.
(2) Celotex Class 2 - Celotex Secured Claims. Celotex
Class 2 consists of all Secured Claims against Celotex, each of which will be
within a separate subclass, with each such subclass to be deemed a separate
Class for all purposes.
(3) Celotex Class 3 - Celotex Administrative
Convenience Claims. Celotex Class 3 consists of (A) all Unsecured Claims
against Celotex, in an amount equal to or less than $2,500, that would be
classified as Celotex Class 4 Claims under the Plan if such Claims exceeded
$2,500; and (B) any Unsecured Claim against Celotex that would otherwise be
classified as a Celotex Class 4 Claim except that the holder of such Claim has
elected voluntarily in writing on the ballot for voting on the Plan to reduce
the Allowed Amount of such Claim to $2,500 by the date on which ballots
accepting or rejecting the Plan must be returned, as fixed by the Bankruptcy
Court; provided, however, that only holders of Unsecured Claims against Celotex
otherwise included in Celotex Class 4 may elect to reduce their Claims to
qualify for treatment under Celotex Class 3.
(4) Celotex Class 4 - Celotex Unsecured Claims.
Celotex Class 4 consists of all Unsecured Claims against Celotex; provided,
however, that Celotex Class 4 does not include Employee Benefit Plan Claims
against Celotex, Asbestos Claims against Celotex, Bonded Claims against Celotex
and Administrative Convenience Claims against Celotex.
- 21 -
<PAGE> 29
(5) Celotex Class 5 - Celotex Employee Benefit Plan
Claims. Celotex Class 5 consists of all Employee Benefit Plan Claims against
Celotex.
(6) Celotex Class 6 - Celotex Asbestos Personal
Injury Claims. Celotex Class 6 consists of all Asbestos Personal Injury Claims
against Celotex; provided, however, that Celotex Class 6 does not include
Bonded Claims against Celotex.
(7) Celotex Class 7 - Celotex Bonded Claims. Celotex
Class 7 consists of all Bonded Claims against Celotex.
(8) Celotex Class 8 - Celotex Asbestos Property
Damage Claims. Celotex Class 8 consists of all Asbestos Property Damage Claims
against Celotex.
(9) Celotex Class 9 - Interests In Celotex. Celotex
Class 9 consists of all Interests in Celotex.
(b) Carey Canada Claims and Interests. The following
constitute the Classes of Claims against and Interests in Carey Canada:
(1) Carey Canada Class 1 - Carey Canada Priority
Claims. Carey Canada Class 1 consists of all Priority Claims against Carey
Canada.
(2) Carey Canada Class 2 - Carey Canada Secured
Claims. Carey Canada Class 2 consists of all Secured Claims against Carey
Canada, each of which will be within a separate subclass, with each such
subclass to be deemed a separate Class for all purposes.
(3) Carey Canada Class 3 - Carey Canada
Administrative Convenience Claims. Carey Canada Class 3 consists of (A) all
Unsecured Claims against Carey Canada, in an amount equal to or less than
$2,500, that would be classified as Carey Canada Class 4 Claims under the Plan
if such Claims exceeded $2,500; and (B) any Unsecured Claim against Carey
Canada that would otherwise be classified as a Carey Canada Class 4 Claim
except that the holder of such Claim has elected voluntarily in writing on the
ballot for voting on the Plan to reduce the Allowed Amount of such Claim to
$2,500 by the date on which ballots accepting or rejecting the Plan must be
returned, as fixed by the Bankruptcy Court; provided, however, that only
holders of Unsecured Claims against Carey Canada otherwise included in Carey
Canada Class 4 may elect to reduce their Claims to qualify for treatment under
Carey Canada Class 3.
(4) Carey Canada Class 4 - Carey Canada Unsecured
Claims. Carey Canada Class 4 consists of all Unsecured Claims against Carey
Canada, provided, however, that Carey Canada Class 4 does not include Employee
Benefit Plan Claims against Carey Canada, Asbestos Claims against Carey Canada,
Bonded Claims against Carey Canada and Administrative Convenience Claims
against Carey Canada.
- 22 -
<PAGE> 30
(5) Carey Canada Class 5 - Carey Canada Employee
Benefit Plan Claims. Carey Canada Class 5 consists of all Employee Benefit Plan
Claims against Carey Canada.
(6) Carey Canada Class 6 - Carey Canada Asbestos
Personal Injury Claims. Carey Canada Class 6 consists of all Asbestos Personal
Injury Claims against Carey Canada; provided, however, that Carey Canada Class
6 does not include Bonded Claims against Carey Canada.
(7) Carey Canada Class 7 - Carey Canada Bonded
Claims. Carey Canada Class 7 consists of all Bonded Claims against Carey
Canada.
(8) Carey Canada Class 8 - Carey Canada Asbestos
Property Damage Claims. Carey Canada Class 8 consists of all Asbestos Property
Damage Claims against Carey Canada.
(9) Carey Canada Class 9 - Interests In Carey Canada.
Carey Canada Class 9 consists of all Interests in Carey Canada.
ARTICLE 4
TREATMENT OF CLAIMS AND INTERESTS
Claims and Interests shall be treated in the manner set forth
in this Article 4. Except as specifically provided elsewhere in the Plan, the
treatment of, and the consideration to be received by, holders of Allowed
Claims and holders of Allowed Interests pursuant to the Plan shall be in full
satisfaction, settlement, release, extinguishment and discharge of their
respective Allowed Claims and Allowed Interests.
4.1 Unclassified Claims. Each holder of an Allowed
Administrative Claim or an Allowed Priority Tax Claim shall receive the
treatment set forth in Article 2 of the Plan.
4.2 Classes Of Claims And Interests.
(a) Celotex Claims And Interests. The following
constitutes the treatment under the Plan of the Claims against and Interests in
Celotex.
(1) Celotex Class 1 - Celotex Priority Claims. On the
Distribution Date, each holder of an Allowed Priority Claim against Celotex
shall receive either (A) the Allowed Amount of its Priority Claim, in Cash or
(B) such other treatment as may be agreed to in writing by such holder and
Reorganized Celotex. This Class is unimpaired.
- 23 -
<PAGE> 31
(2) Celotex Class 2 - Celotex Secured Claims. Each
holder of an Allowed Secured Claim against Celotex shall retain, unaltered, the
legal, equitable and contractual rights (including, but not limited to, any
Liens that secure such Allowed Secured Claim) to which such Allowed Secured
Claim entitles such holder. This Class (or these subclasses) is unimpaired.
(3) Celotex Class 3 - Celotex Administrative
Convenience Claims. On the Distribution Date, each holder of an Allowed
Administrative Convenience Claim against Celotex shall receive the Allowed
Amount of its Administrative Convenience Claim in Cash. This Class is
unimpaired.
(4) Celotex Class 4 - Celotex Unsecured Claims.
Except to the extent that a holder of an Allowed Class 4 Claim against Celotex
has agreed to receive a lump-sum payment or other treatment, on the
Distribution Date, each such holder shall receive a distribution equal to 90%,
in Cash, of the Allowed Amount of its Class 4 Claim. This Class is impaired.
(5) Celotex Class 5 - Celotex Employee Benefit Plan
Claims. On the Confirmation Date, Celotex as Debtor, and after the Effective
Date as Reorganized Celotex, shall continue, automatically and without further
act or deed, the Employee Benefit Plans maintained by Celotex, and each holder
of an Allowed Employee Benefit Plan Claim against Celotex shall retain,
unaltered, the legal, equitable and contractual rights to which such Allowed
Employee Benefit Plan Claim entitles such holder. This Class is unimpaired.
(6) Celotex Class 6 - Celotex Asbestos Personal
Injury Claims. As of the Confirmation Date, liability for all Asbestos Personal
Injury Claims against Celotex shall be automatically and without further act or
deed, transferred to, vested in and assumed by the Trust. Each Asbestos
Personal Injury Claim against Celotex shall be addressed (i.e., Allowed or
disallowed and, if Allowed, paid) by the Trust pursuant to and in accordance
with the Asbestos Personal Injury Claims Resolution Procedures. This Class is
impaired.
(7) Celotex Class 7 - Celotex Bonded Claims. Subject
to Article 11.7 of the Plan, on the Distribution Date and pursuant to the terms
of the Trust Documents, each holder of an Allowed Bonded Claim against Celotex
shall receive from Celotex, or at the Trustees' election from the applicable
Bond Surety/Insurer (consistent with the terms of the supersedeas bond and the
Prepetition Settlement and Bonding Agreement pursuant to which such bond was
provided or obtained), either (A) the Allowed Amount of its Bonded Claim in
Cash or (B) such other treatment as may be agreed upon in writing by such
holder and the Trustees. This Class is unimpaired.
(8) Celotex Class 8 - Celotex Asbestos Property
Damage Claims. As of the Confirmation Date, liability for all Asbestos Property
Damage Claims against Celotex shall be automatically and without further act or
deed, transferred to, vested in and assumed by the Trust. Each Asbestos
Property Damage Claim against Celotex shall be addressed (i.e., Allowed or
disallowed and, if Allowed, paid) by the Trust pursuant to and in
- 24 -
<PAGE> 32
accordance with the Asbestos Property Damage Claims Resolution Procedures. This
Class is impaired.
(9) Celotex Class 9 - Interests In Celotex. On the
Effective Date, all Interests in Celotex shall be cancelled, annulled and
extinguished, and the holders thereof shall not be entitled to receive or
retain any property or distribution pursuant to the Plan on account of such
Interests. All holders of Interests in Celotex consent to this treatment. This
Class is impaired.
(b) Carey Canada Claims And Interests. The following
constitutes the treatment under the Plan of the Claims against and Interests in
Carey Canada.
(1) Carey Canada Class 1 - Carey Canada Priority
Claims. On the Distribution Date, each holder of an Allowed Priority Claim
against Carey Canada shall receive either (A) the Allowed Amount of its
Priority Claim, in Cash or (B) such other treatment as may be agreed to in
writing by such holder and Reorganized Carey Canada. This Class is unimpaired.
(2) Carey Canada Class 2 - Carey Canada Secured
Claims. Each holder of an Allowed Secured Claim against Carey Canada shall
retain, unaltered, the legal, equitable and contractual rights (including, but
not limited to, any Liens that secure such Allowed Secured Claim) to which such
Allowed Secured Claim entitles such holder. This Class (or these subclasses) is
unimpaired.
(3) Carey Canada Class 3 - Carey Canada
Administrative Convenience Claims. On the Distribution Date, each holder of an
Allowed Administrative Convenience Claim against Carey Canada shall receive the
Allowed Amount of its Administrative Convenience Claim in Cash. This Class is
unimpaired.
(4) Carey Canada Class 4 - Carey Canada Unsecured
Claims. Except to the extent that a holder of an Allowed Class 4 Claim against
Carey Canada has agreed to receive a lump-sum payment or other treatment, on
the Distribution Date, each such holder shall receive a distribution equal to
90%, in Cash, of the Allowed Amount of its Class 4 Claim. This Class is
impaired.
(5) Carey Canada Class 5 - Carey Canada Employee
Benefit Plan Claims. On the Confirmation Date, Carey Canada as Debtor, and
after the Effective Date as Reorganized Carey Canada, shall continue,
automatically and without further act or deed, the Employee Benefit Plans
maintained by Carey Canada, and each holder of an Allowed Employee Benefit Plan
Claim against Carey Canada shall retain, unaltered, the legal, equitable and
contractual rights to which such Allowed Employee Benefit Plan Claim entitles
such holder. This Class is unimpaired.
(6) Carey Canada Class 6 - Carey Canada Asbestos
Personal Injury Claims. As of the Confirmation Date, liability for all Asbestos
Personal Injury Claims against Carey Canada shall be automatically and without
further act or deed, transferred to,
- 25 -
<PAGE> 33
vested in and assumed by the Trust. Each Asbestos Personal Injury Claim against
Carey Canada shall be addressed (i.e., Allowed or disallowed and, if Allowed,
paid) by the Trust pursuant to and in accordance with the Asbestos Personal
Injury Claims Resolution Procedures. This Class is impaired.
(7) Carey Canada Class 7 - Carey Canada Bonded
Claims. Subject to Article 11.7 of the Plan, on the Distribution Date and
pursuant to the terms of the Trust Documents, each holder of an Allowed Bonded
Claim against Carey Canada shall receive from Carey Canada, or at the Trustees'
election from the Bond Surety/Insurer (consistent with the terms of the
supersedeas bond and the Prepetition Settlement and Bonding Agreement pursuant
to which such bond was provided or obtained), either (A) the Allowed Amount of
its Bonded Claim in Cash or (B) such other treatment as may be agreed upon in
writing by such holder and the Trustees. This Class is unimpaired.
(8) Carey Canada Class 8 - Carey Canada Asbestos
Property Damage Claims. As of the Confirmation Date, liability for all Asbestos
Property Damage Claims against Carey Canada shall be automatically and without
further act or deed, transferred to, vested in and assumed by the Trust. Each
Asbestos Property Damage Claim against Carey Canada shall be addressed (i.e.,
Allowed or disallowed and, if Allowed, paid) by the Trust pursuant to and in
accordance with the Asbestos Property Damage Claims Resolution Procedures. This
Class is impaired.
(9) Carey Canada Class 9 - Interests In Carey Canada.
On the Effective Date, the Interests in Carey Canada shall be cancelled,
annulled and extinguished, and the holders thereof shall not be entitled to
receive or retain any property or distribution pursuant to the Plan on account
of such Interests. All holders of Interests in Carey Canada consent to this
treatment. This Class is impaired.
ARTICLE 5
THE TRUST
5.1 Establishment And Purpose Of Trust. On the Confirmation
Date, the Trust shall be established in accordance with the Trust Documents.
The Trust is a "qualified settlement fund" within the meaning of Section 468B
of the IRC and the regulations issued pursuant thereto. The purpose of the
Trust shall be to, among other things, (a) direct the liquidation and
resolution of all Asbestos Claims in accordance with the Plan and the Asbestos
Claims Resolution Procedures and (b) preserve, hold, manage and maximize the
Trust Assets for use in paying and satisfying Allowed Asbestos Claims. The
Asbestos Claims Resolution Procedures shall provide for the allowance and
payment or disallowance of Asbestos Claims pursuant to the terms of the Trust
Documents. The Trust shall pay Allowed Asbestos Claims based upon the Payment
Percentage, subject to the powers of the Trustees to modify the Payment
Percentage.
- 26 -
<PAGE> 34
5.2 Receipt Of Trust Assets. On the Effective Date, all Trust
Assets shall be, automatically and without further act or deed, transferred to,
vested in and assumed by the Trust, subject to the notification requirements
contained in Articles 11.6, 11.7, 11.8 and 11.9 of the Plan; provided, however,
that to the extent that certain Trust Assets, because of their nature or
because they will accrue subsequent to the Effective Date, cannot be
transferred to, vested in and assumed by the Trust on the Effective Date, such
Trust Assets shall be, automatically and without further act or deed,
transferred to, vested in and assumed by the Trust as soon as practicable after
the Effective Date; and, further provided, that the common stock or assets of
JWC and the other Consolidated Affiliates will be transferred pursuant to the
terms of the JWC Stock Purchase Agreement or any applicable Affiliate Asset
Purchase Agreement. The transfer of the Supersedeas Bond Recoveries and the
Debtors' rights under the Supersedeas Bond Action to the Trust shall give the
Trust no greater right to receive any payment from any of the Bond
Sureties/Insurers than the Debtors, Reorganized Celotex or Reorganized Carey
Canada may have, and the transfer of the Supersedeas Bond Recoveries and the
Debtors' rights under the Supersedeas Bond Action to the Trust shall not
impair, compromise or otherwise adversely affect any rights of recoupment or
setoff or any other defense to such payment that any of the Bond
Sureties/Insurers may have, as shall be determined or, if resolved by
settlement among the parties, approved by Final Order of the Bankruptcy Court
(or a court on appeal or certiorari from an Order of the Bankruptcy Court).
Such rights of recoupment and setoff, if any, and any claims or defenses of the
Bond Sureties/Insurers which pertain to such rights of recoupment and setoff,
to the Supersedeas Bond Action or to payment under the Prepetition Settlement
and Bonding Agreements shall survive Confirmation of the Plan and the Effective
Date, subject only to judicial determination thereof by Final Order of the
Bankruptcy Court (or a court on appeal or certiorari from an Order of the
Bankruptcy Court).
5.3 Settlement Account. On the Effective Date, the Settlement
Account shall constitute a trust account of the Trust as contemplated by the
Plan and shall be administered and managed under the terms of the Trust
Agreement.
5.4 Discharge Of Liabilities To Holders Of Asbestos Claims.
Except as provided in the Plan, the transfer to, vesting in and assumption by
the Trust of the Trust Assets as contemplated by the Plan shall discharge,
release and extinguish all obligations and liabilities of the Released Parties
and their respective estates, affiliates and subsidiaries, for or in respect of
all Asbestos Claims, including, but not limited to, all Indirect Asbestos
Claims, against the Debtors, Reorganized Celotex, Reorganized Carey Canada and
their respective Estates, Affiliates and subsidiaries (and the Confirmation
Order shall so provide for such discharge, release and extinguishment). The
Trust shall assume sole responsibility and liability for all Asbestos Claims,
including, but not limited to, Indirect Asbestos Claims, against the Debtors,
Reorganized Celotex, Reorganized Carey Canada and their respective Estates,
Affiliates and subsidiaries and such Claims shall be paid solely by the Trust
from the Trust Assets.
5.5 Investment Guidelines. Pursuant to Section 4.2 of the
Trust Agreement, all monies held in the Trust shall be invested, subject to the
investment limitations and provisions enumerated in the Trust Agreement. In
addition to permitted investments under
- 27 -
<PAGE> 35
Section 4.2 of the Trust Agreement, Section 4.2(g) of the Trust Agreement
expressly permits the Trust to hold any item of property or asset included in
kind in the Trust Assets.
5.6 Excess Trust Assets. To the extent there are any Trust
Assets remaining after the payment of all Allowed Asbestos Claims and the
payment, in full, of all Trust Expenses, such excess Trust Assets shall be
transferred to such charitable purposes as the Trustees, in their reasonable
discretion, shall determine, which charitable purposes, if practicable, shall
be related to the treatment of, research regarding or payment of claims related
to asbestos-caused disorders.
5.7 Trust Expenses. The Trust shall pay all Trust Expenses
from the Trust Assets. Neither the Plan Proponents, Reorganized Celotex nor
Reorganized Carey Canada shall have any obligation to pay any Trust Expenses.
5.8 Selection Of The Initial Trustees. The five initial
Trustees of the Trust shall be those identified in the Trust Agreement. All
successor Trustees shall be appointed in accordance with the terms of the Trust
Agreement. For purposes of performing their duties and fulfilling their
obligations under the Trust Agreement and the Plan, each Trustee shall be
deemed to be (and the Confirmation Order shall so provide) a "party in
interest" within the meaning of Section 1109(b) of the Bankruptcy Code.
5.9 Advising The Trust.
(a) The Trust Advisory Committee. The Trust Advisory
Committee shall have six members and shall have the functions and rights
provided in the Trust Agreement. On or before the Confirmation Date, the six
initial members of the Trust Advisory Committee shall be selected by the
Asbestos Health Claimants Committee.
(b) Property Damage Claims Administrator. The Property
Damage Claims Administrator shall have the functions and rights provided in the
Trust Agreement. On or before the Confirmation Date, the Property Damage Claims
Administrator shall be selected by the Asbestos Property Damage Claimants
Committee.
(c) PD Advisory Committee. The PD Advisory Committee
shall have three members and shall have the functions and rights provided in
the Trust Agreement. On or before the Confirmation Date, the three initial
members of the PD Advisory Committee shall be selected by the Chairman of the
Asbestos Property Damage Claimants' Committee.
(d) Successor Committee Members Or Property Damage Claims
Administrator. Each member of the Trust Advisory Committee and the PD Advisory
Committee shall serve until the earlier of such member's death, resignation or
removal. All successor committee members shall be selected in accordance with
the terms and conditions contained in the Trust Agreement. The Property Damage
Claims Administrator shall serve until such Person's death, resignation or
removal. A successor Property Damage Claims Administrator shall be selected in
accordance with the terms and conditions contained in the Trust Agreement.
- 28 -
<PAGE> 36
ARTICLE 6
TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES
6.1 Assumption And Rejection Of Unexpired Leases And
Executory Contracts.
(a) Rejection. Any unexpired lease or executory contract
that has not been expressly assumed by the Debtors with the Bankruptcy Court's
approval on or prior to the Confirmation Date shall, as of the Confirmation
Date (subject to the occurrence of the Effective Date), be deemed to have been
rejected by the Debtors unless there is pending before the Bankruptcy Court on
the Confirmation Date a motion to assume such unexpired lease or executory
contract.
(b) Assumption. Notwithstanding subpart (a) of this
Article 6.1, the Debtors shall assume those executory contracts and unexpired
leases listed on Exhibit 2 hereto (as such list may be amended or supplemented
up to and including the Confirmation Date), and the Debtors shall likewise
assume any unexpired lease or executory contract the Debtors entered into after
the Petition Date to the extent such contract or lease is executory or
unexpired, respectively, under Section 365 of the Bankruptcy Code.
(c) Reservation. Notwithstanding anything in subparts (a)
or (b) of this Article 6.1 to the contrary, this Article 6.1 shall not apply to
any unexpired lease or executory contract that is treated otherwise under the
Plan.
6.2 Rejected Unexpired Leases And Executory Contracts.
Notwithstanding anything to the contrary set forth in Article 6.1 hereof, the
Debtors hereby expressly reject, pursuant to Section 365 of the Bankruptcy
Code, the following executory contracts and unexpired leases: (a) all product
warranties of the Debtors (including any obligation of the Debtors to pay any
costs or expenses related to such product warranties) which relate to asbestos
or asbestos-related products that were made, mined, manufactured, produced,
distributed, sold, marketed or supplied by the Debtors, whether or not the
liabilities or obligations resulting thereunder constitute or will be treated
as Asbestos Claims pursuant to the Plan; and (b) all product warranties of the
Debtors (including any obligation to pay any costs or expenses related to such
warranties), which relate to products no longer made, mined, manufactured,
produced, distributed, sold, marketed or supplied by the Debtors.
6.3 Continuation Of Product Warranties. Celotex as Debtor,
and after the Effective Date as Reorganized Celotex, may elect to honor any
product warranty as to non-asbestos products rejected pursuant to Article 6.2
of the Plan if honoring such product warranty would, in the judgment of
Celotex, confer a reasonably comparable benefit upon Celotex.
- 29 -
<PAGE> 37
6.4 Damages Upon Rejection. The Bankruptcy Court shall
determine the dollar amount, if any, of the Claim of any Entity seeking damages
by reason of the rejection of any executory contract or unexpired lease;
provided, however, that such Entity must file a Proof of Claim with the
Bankruptcy Court before thirty calendar days following the Confirmation Date.
To the extent any such Claim is Allowed by the Bankruptcy Court by Final Order,
such Claim shall become, and shall be treated for all purposes under the Plan
as, a Celotex Class 4 Claim or Carey Canada Class 4 Claim, or if the Claim is
an Asbestos Claim, a Celotex Class 6 Claim, a Carey Canada Class 6 Claim, a
Celotex Class 8 Claim or a Carey Canada Class 8 Claim, as the case may be, and
the holder thereof shall receive distributions as a holder of an Allowed Claim
in such Class or Classes pursuant to the Plan. The Plan shall constitute notice
to Entities which may assert a Claim for damages from the rejection of an
executory contract or unexpired lease of this bar date for filing a Proof of
Claim in connection therewith; provided, however, that the Debtors shall have
no obligation to notify such Entities that Confirmation has occurred.
6.5 Assumption Of Corporate Indemnities. Any obligations of
the Debtors, pursuant to their respective corporate charters and bylaws, or
pursuant to law, to indemnify their respective directors, officers, agents,
employees, attorneys, accountants, financial advisors and representatives, with
respect to all present and future actions, suits and proceedings against the
Debtors or any of such officers, directors, agents, employees, attorneys,
accountants, financial advisors or representatives, based upon any act or
omission related to service with, or for or on behalf of, the Debtors, shall
not be discharged or impaired by Confirmation of the Plan, but shall be deemed
and treated as executory contracts that are assumed by the applicable Debtor
pursuant to the Plan and Section 365 of the Bankruptcy Code, except to the
extent any such obligation has been released pursuant to the Plan. Accordingly,
such indemnification obligations shall survive unaffected by the Plan and shall
be performed and honored by Reorganized Celotex and Reorganized Carey Canada.
ARTICLE 7
ACCEPTANCE OR REJECTION OF THE PLAN
7.1 Each Impaired Class Entitled To Vote Separately. The
holders of Claims or Interests in each impaired Class of Claims or Interests,
other than the holders of Interests in Celotex Class 9 and Carey Canada Class
9, shall be entitled to vote separately to accept or reject the Plan. All
holders of Interests in Celotex Class 9 and Carey Canada Class 9 support the
Plan and have consented to the treatment provided under the Plan.
7.2 Acceptance By Impaired Classes Of Claims. Pursuant to
Section 1126(c) of the Bankruptcy Code, an impaired Class of Claims shall have
accepted the Plan if (a) the holders of at least two-thirds in dollar amount of
the Allowed Claims actually voting in such Class (other than Claims held by any
holder designated pursuant to Section 1126(e) of the Bankruptcy Code) have
voted to accept the Plan and (b) more than one-half in number of
- 30 -
<PAGE> 38
such Allowed Claims actually voting in such Class (other than Claims held by
any holder designated pursuant to Section 1126(e) of the Bankruptcy Code) have
voted to accept the Plan.
7.3 Acceptance Pursuant To Section 524(g) Of The Bankruptcy
Code. The Plan shall have been voted upon favorably to the extent required by
Section 524(g)(2)(B)(ii)(IV)(bb) of the Bankruptcy Code.
7.4 Presumed Acceptance Of Plan. Celotex Classes 1, 2, 3, 5
and 7 and Carey Canada Classes 1, 2, 3, 5 and 7 are not impaired. Under Section
1126(f) of the Bankruptcy Code, the holders of Claims in such Classes are
conclusively presumed to have voted to accept the Plan.
7.5 Confirmability And Severability Of The Plan. The
Confirmation requirements of Section 1129 of the Bankruptcy Code must be
satisfied separately with respect to each Debtor. Therefore, notwithstanding
the combination of the separate plans of reorganization of Celotex and Carey
Canada in this Plan for purposes of, among other things, economy and
efficiency, the Plan shall be deemed a separate Chapter 11 plan for Celotex and
for Carey Canada. Should either of such separate plans not be confirmed, the
other Debtor may withdraw the other separate plan.
ARTICLE 8
CONDITIONS TO CONFIRMATION AND EFFECTIVENESS
8.1 Conditions To Confirmation. Confirmation of the Plan
shall not occur unless each of the following conditions has been satisfied or
waived by the Plan Proponents; provided, however, that none of the conditions
set forth in subpart (a) of this Article 8.1 shall be waivable. These
conditions to confirmation, which are designed, among other things, to ensure
that the Injunctions, releases and discharges set forth in Article 10 shall be
effective, binding and enforceable, are as follows:
(a) The Bankruptcy Court shall have made the following
findings in substantially the following form:
(i) The Supplemental Injunction, the Third Party
Injunction and the VPSA Injunction are to be implemented
in connection with the Trust;
(ii) As of the Petition Date, the Debtors had been
named as defendants in personal injury, wrongful death or
property damage actions seeking recovery for damages
allegedly caused by the presence of, or exposure to,
asbestos or asbestos-containing products;
- 31 -
<PAGE> 39
(iii) The Trust, upon Confirmation, shall assume the
liabilities of the Debtors with respect to Asbestos
Claims;
(iv) The Trust is to be funded in whole or in part by
the securities of one or more of the Debtors and by the
obligations of such Debtors to make future payments,
including dividends;
(v) The Trust is to own a majority of the voting
shares of Reorganized Celotex and Reorganized Carey
Canada;
(vi) The Trust is to use its assets or income to pay
Asbestos Claims;
(vii) The Debtors are likely to be subject to
substantial future Demands for payment arising out of the
same or similar conduct or events that gave rise to the
Asbestos Personal Injury Claims, which are addressed by
the Supplemental Injunction, the Third Party Injunction
and the VPSA Injunction;
(viii) The actual amounts, numbers and timing of
future Demands cannot be determined;
(ix) Pursuit of Demands outside the procedures
prescribed by the Plan is likely to threaten the Plan's
purpose to deal equitably with Claims and future Demands;
(x) The terms of the Supplemental Injunction, the
Third Party Injunction and the VPSA Injunction, including
any provisions barring actions against third parties, are
set out in the Plan and in the Disclosure Statement;
(xi) Pursuant to court orders or otherwise, the Trust
shall operate through mechanisms such as structured,
periodic or supplemental payments, pro rata
distributions, matrices or periodic review of estimates
of the numbers and values of Asbestos Personal Injury
Claims or other comparable mechanisms, that provide
reasonable assurance that the Trust shall value, and be
in a financial position to pay, Asbestos Personal Injury
Claims that involve similar Asbestos Personal Injury
Claims in substantially the same manner;
(xii) The Legal Representative was appointed by the
Bankruptcy Court as part of the proceedings leading to
the issuance of the Supplemental Injunction, the Third
Party Injunction and the VPSA Injunction for the purpose
of, among other things, protecting the rights of persons
that might subsequently assert Demands of the kind that
are
- 32 -
<PAGE> 40
addressed in the Supplemental Injunction, the Third Party
Injunction and the VPSA Injunction and transferred to the
Trust;
(xiii) Identifying each Debtor or beneficiary of the
Supplemental Injunction, the Third Party Injunction and
the VPSA Injunction, as applicable, in such Injunctions
with respect to Demands is fair and equitable with
respect to the persons that might subsequently assert
Demands against each such Debtor or beneficiary in light
of the benefits provided, or to be provided, to the Trust
on behalf of such Debtor or such beneficiary; and
(xiv) The Plan otherwise complies with Section 524(g)
of the Bankruptcy Code.
(b) Confirmation Order. The Bankruptcy Court shall have
made such findings and determinations regarding the Plan as shall enable the
entry of the Confirmation Order (including, inter alia, compliance with the
requirements of Article 11.8 of the Plan), and any other order entered in
conjunction therewith, in form and substance acceptable to the Plan Proponents.
8.2 Conditions To Effectiveness. Notwithstanding any other
provision of the Plan or the Confirmation Order, the Effective Date of the Plan
shall not occur unless and until each of the following conditions has been
satisfied or waived by the Plan Proponents.
(a) Disclosure Statement. The Bankruptcy Court shall have
approved the Disclosure Statement in a Final Order.
(b) Confirmation Order. The Confirmation Order shall have
been issued or affirmed by the District Court, and the Confirmation Order shall
have become a Final Order; provided, however, that the Effective Date may occur
at a point in time when the Confirmation Order is not a Final Order at the sole
option of the Plan Proponents unless the effectiveness of the Confirmation
Order has been stayed or vacated, in which case the Effective Date may be,
again at the sole option of the Plan Proponents, the first Business Day
immediately following the expiration or other termination of any stay of
effectiveness of the Confirmation Order; and, further provided, however, that
the conditions set forth in this subpart 8.2(b) shall not be waivable without
the consent of Jasper.
(c) Trust. The Trust Assets shall have been transferred
to, vested in and assumed by the Trust in accordance with Article 5.2 of the
Plan other than any of the Trust Assets to be transferred to, vested in and
assumed by the Trust after the Effective Date.
(d) Corporate Documents. The Trust Documents, the
Insurance Cooperation Agreements, the JWC Stock Purchase Agreement and the
other applicable corporate documents necessary or appropriate to implement the
Plan shall have been executed, delivered and, where applicable, filed with the
appropriate governmental authorities; provided,
- 33 -
<PAGE> 41
however, that the conditions set forth in this subpart 8.2(d) shall not be
waivable without the consent of Jasper.
(e) United States Trustee's Fees. The fees of the United
States Trustee then owing by the Debtors shall have been paid in full.
(f) Other Assurances. The Plan Proponents shall have
obtained tax rulings, decisions, opinions or other assurances regarding certain
tax consequences of the Plan, as they deem satisfactory.
ARTICLE 9
IMPLEMENTATION OF THE PLAN
9.1 Trust Funding. No later than ten calendar days after the
Effective Date, (a) Reorganized Celotex shall transfer the Celotex Cash to the
Trust as part of the consideration to be paid by Celotex to the Trust for the
Trust's assumption of Celotex's Asbestos Claims and (b) Reorganized Carey
Canada shall transfer the Carey Canada Cash to the Trust as part of the
consideration to be paid by Carey Canada to the Trust for the Trust's
assumption of Carey Canada's Asbestos Claims. No later than ten calendar days
after the Effective Date, Reorganized Celotex shall transfer or issue to the
Trust the Financial Accommodations (not otherwise needed for distribution
pursuant to the Plan or for operations of Reorganized Celotex) as additional
consideration to be paid by Celotex to the Trust for the Trust's assumption of
Celotex's Asbestos Claims.
9.2 Cancellation Of Existing Stock. On the Effective Date,
all Existing Celotex Stock, unexercised warrants and other rights to purchase
Existing Celotex Stock, and any other rights attached to the ownership of any
equity securities of Celotex shall be deemed cancelled and of no further force
and effect. Also on the Effective Date, all Existing Carey Canada Stock,
unexercised warrants and other rights to purchase Existing Carey Canada Stock,
and any other rights pertaining to the ownership of any equity securities of
Carey Canada shall be deemed cancelled and of no further force and effect.
9.3 Issuance Of New Stock.
(a) On the Effective Date, Reorganized Celotex shall
issue the Reorganized Celotex Common Stock to the Trust as part of the
consideration to be paid by Celotex to the Trust for the Trust's assumption of
Celotex's Asbestos Claims. The Reorganized Celotex Common Stock shall consist
of 1500 shares of common stock, which shares shall constitute all of the
authorized stock of Reorganized Celotex.
(b) On the Effective Date, Carey Canada shall issue the
Reorganized Carey Canada Common Stock to the Trust as part of the consideration
to be paid by Carey
- 34 -
<PAGE> 42
Canada to the Trust for the Trust's assumption of Carey Canada's Asbestos
Claims. The Reorganized Carey Canada Common Stock shall consist of 100 shares
of common stock, which shares shall constitute all of the authorized stock of
Reorganized Carey Canada.
9.4 Transactions With Affiliates.
(a) Acquisition Of JWC Stock. On the Effective Date or
shortly thereafter, pursuant to the JWC Stock Purchase Agreement, substantially
in the form attached hereto as Exhibit 5, the Trust shall obtain, either
directly or indirectly, all outstanding and issued stock or other equity
interests in JWC.
(b) Acquisition Of Assets By Reorganized Celotex. On the
Effective Date or shortly thereafter, in the sole determination of the Plan
Proponents, pursuant to the Affiliate Asset Purchase Agreements, Reorganized
Celotex may acquire (i) certain operating assets of JWC and/or (ii) either all
of the outstanding and issued stock or other equity interests in JWIC and CAE
or certain operating assets of JWIC and CAE.
(c) Consideration. In consideration for the acquisition
of the stock and other equity interests in JWC described in subpart 9.4(a),
and, except as set forth in the JWC Stock Purchase Agreement, as satisfaction
for any other Claims of any of the Jasper Parties against any of the Debtors,
Reorganized Celotex, Reorganized Carey Canada or the Consolidated Affiliates,
upon the consummation of the transactions contemplated by the Plan and in
further consideration of the benefits conferred by or on behalf of Jasper and
the Drummond Interests under the Plan, Jasper will receive $30 million in Cash
and Jasper and the Drummond Interests will receive the releases and injunctions
described in the Plan.
(d) Return of Bankruptcy Rule 3020 Deposit. If, by the
Effective Date, the Bankruptcy Court has not ordered that the Rule 3020 deposit
made by Jasper in contemplation of the Debtors' previous plan of reorganization
be returned to Jasper, but instead has ordered or otherwise allowed such
deposit to remit to the Debtors' Estates or to the Trust, then, in addition to
the payment described in subpart 9.4(c), Jasper shall be paid such deposit and
any interest on such deposit that has been remitted to the Debtors' Estates or
to the Trust.
9.5 Intercompany Claims And The Russellville Bond. On the
Effective Date, based upon, among other things, the Claims Agreement, and
except as otherwise provided for in the JWC Stock Purchase Agreement, all
Intercompany Claims, other than the Russellville Bond and any claim relating
thereto (to the extent it is an Intercompany Claim) shall be deemed
extinguished and expunged and shall receive no distribution under the Plan. On
the Effective Date, JWC shall contribute the Russellville Bond, or the right to
receive payments thereunder, to the Trust in consideration for the releases and
injunctions described in the Plan.
9.6 Execution Of Other Documents. On the Effective
Date, the following documents, among others, shall be executed to effectuate
the Plan: (a) the Financial
- 35 -
<PAGE> 43
Accommodations, (b) the Insurance Cooperation Agreements, (c) the Tax
Cooperation and Indemnification Agreement and (d) the Agreement Regarding
Disputed Claims.
9.7 Certificate Of Incorporation And Bylaws. The Certificate
of Incorporation of Reorganized Celotex shall, as of the Effective Date, be
amended in its entirety substantially in the form set forth in Exhibit 3
hereto, and the Bylaws of Reorganized Celotex shall be amended in their
entirety substantially in the form set forth in Exhibit 4 hereto. Consistent
with Section 1123(a)(6) of the Bankruptcy Code, the amended Certificate of
Incorporation of Reorganized Celotex shall, among other things, prohibit the
issuance of non-voting equity securities as part of the Reorganization Cases.
The Certificate of Incorporation of Carey Canada shall also be amended to,
among other things, prohibit the issuance of non-voting equity securities as
part of the Reorganization Cases.
9.8 Management Of Reorganized Celotex And Reorganized Carey
Canada. On and after the Effective Date, the business and affairs of
Reorganized Celotex and Reorganized Carey Canada will be managed by the boards
of directors of Reorganized Celotex and Reorganized Carey Canada, respectively.
On the Effective Date, the Certificate of Incorporation and the Restated Bylaws
of Celotex (each substantially in the form attached hereto) and Carey Canada,
respectively, will provide that the board of directors of Celotex shall consist
of seven or nine directors and that the board of directors of Carey Canada
shall consist of three directors, the initial directors of each such board of
directors to be named at the Confirmation Hearing.
9.9 Compensation Programs. The Compensation Programs shall be
implemented by Reorganized Celotex on the Effective Date, and when implemented,
shall become binding and effective. Nothing in the Plan shall be construed to
modify, supersede or reject any Employee Benefit Plan, which shall remain in
full force and effect following Confirmation. Reorganized Celotex and
Reorganized Carey Canada shall pay to certain executive employees and other
employees the retention awards adopted by the boards of directors of the
Debtors.
9.10 Dissolution Of Celotex Inactive Subsidiaries. On or
subsequent to the Effective Date, Reorganized Celotex shall take such actions
as may be necessary or appropriate to effect the dissolution or other
disposition of the Celotex Inactive Subsidiaries.
9.11 Withholding Of Taxes. The Disbursing Agent or the Trust,
as applicable, shall withhold from any assets or property distributed under the
Plan any assets or property which must be withheld for foreign, federal, state
and local taxes payable with respect thereto or payable by the Person entitled
to such assets to the extent required by applicable law.
9.12 Unclaimed Property. Any Cash, assets, and other property
to be distributed under the Plan that remain unclaimed (including by an
Entity's failure to negotiate a check issued to such Entity) or otherwise not
deliverable to the Entity entitled thereto before the later of (a) one year
after distribution or (b) 120 calendar days after an order allowing such
Entity's Claim becomes a Final Order, shall become vested in, and shall be
transferred
- 36 -
<PAGE> 44
and delivered to, the Trust for the benefit of holders of Asbestos Claims. In
such event, such Entity's Claim shall no longer be deemed to be Allowed and
such Entity shall be deemed to have waived its rights to such payments or
distributions under the Plan pursuant to Section 1143 of the Bankruptcy Code
and shall have no further Claim in respect of such distribution and shall not
participate in any further distributions under the Plan with respect to such
Claim.
9.13 Exoneration And Reliance. The Plan Proponents, the
Asbestos Property Damage Claimants Committee, Reorganized Celotex, Reorganized
Carey Canada, the designated representative (as defined in Section 7.1 of the
Settlement Agreement) and the Veil Piercing Claimants' Representative (as
defined in the VPSA) and their respective stockholders, directors, officers,
agents, employees, members, attorneys, accountants, financial advisors and
representatives shall not be liable other than for willful misconduct or gross
negligence to any holder of a Claim or Interest or any other Entity with
respect to any action, omission, forbearance from action, decision, or exercise
of discretion taken during the period from the Petition Date to the Effective
Date in connection with: (a) the management or operation of the Debtors,
Reorganized Celotex, or Reorganized Carey Canada, or the discharge of their
duties under the Bankruptcy Code, (b) the implementation of any of the
transactions provided for, or contemplated in, the Plan or the Plan Documents,
(c) any action taken in connection with either the enforcement of the Debtors'
rights against any Entities or the defense of Claims asserted against the
Debtors with regard to the Reorganization Cases, (d) any action taken in the
negotiation, formulation, development, proposal or implementation of the Plan
or any previous plan proposed or filed in these Reorganization Cases, (e) any
action taken in connection with the Debtors' or as successor to the Debtors,
the Trust's rights against Dana, including, without limitation, the provision
of information to parties concerning Dana, Smith and Kanzler Company a/k/a
Smith & Kanzler Company, Smith and Kanzler Corporation a/k/a Smith & Kanzler
Corporation, Panacon Corporation or the Debtors' claims against Dana or the
assignment of the S & K Claims, as defined in the Asbestos Property Damage
Claims Resolution Procedures, in connection with any proceeding or action
relating to the Reorganization Cases or as provided in the Plan or the Plan
Documents or (f) the administration of the Plan or the Trust or the assets and
property to be distributed pursuant to the Plan. The Plan Proponents, the
Asbestos Property Damage Claimants Committee, Reorganized Celotex and
Reorganized Carey Canada and their respective stockholders, directors,
officers, agents, employees, members, attorneys, accountants, financial
advisors and representatives may reasonably rely upon the opinions of counsel,
accountants, and other experts or professionals employed by the Plan
Proponents, the Asbestos Property Damage Claimants Committee, Reorganized
Celotex or Reorganized Carey Canada and such reliance, if reasonable, shall
conclusively establish good faith and the absence of gross negligence or
willful misconduct; provided, however, that a determination that such reliance
is unreasonable shall not, by itself, constitute a determination or finding of
bad faith, gross negligence or willful misconduct. In any action, suit or
proceeding by any holder of a Claim or Interest or any other Entity contesting
any action by, or non-action of, the Plan Proponents, the Asbestos Property
Damage Claimants Committee, Reorganized Celotex or Reorganized Carey Canada or
their respective stockholders, directors, officers, agents, employees, members,
attorneys, accountants, financial advisors and representatives as not being in
good faith, the reasonable attorneys' fees and costs of the prevailing party
shall be paid by the losing party and as a condition to going forward with such
action, suit, or proceeding at the outset thereof, all
- 37 -
<PAGE> 45
parties thereto shall be required to provide appropriate proof and assurances
of their capacity to make such payments of reasonable attorneys' fees and costs
in the event they fail to prevail.
9.14 Plan Documents. By the Plan Documents Filing Date, the
Plan Proponents shall file with the Bankruptcy Court unexecuted copies of the
Plan Documents, together with all necessary exhibits or schedules thereto, as
may be necessary or appropriate to effectuate the terms and conditions of the
Plan. Any party in interest may review the Plan Documents on any Business Day
during normal business hours (9:00 a.m. to 4:30 p.m., Eastern Standard Time) in
the Plan Documents Review Center.
9.15 Plan Distributions. The Disbursing Agent shall make all
distributions required under the Plan (other than distributions to holders of
Asbestos Claims). Distributions shall be made on the Distribution Date (unless
otherwise provided herein or ordered by the Bankruptcy Court) with respect to
all Claims except for Asbestos Claims. With respect to Asbestos Claims,
distributions to holders of Asbestos Personal Injury Claims and Asbestos
Property Damage Claims shall be made in accordance with the applicable Asbestos
Claims Resolution Procedures. Distributions to be made on the Distribution Date
shall be deemed actually made on the Distribution Date if made either (a) on
the Distribution Date or (b) as soon as practicable thereafter, but in no event
later than ten Business Days after the Distribution Date, except as otherwise
provided for herein, or except as may be ordered by the Bankruptcy Court.
Except where the Plan contemplates deferred payment or delivery of property or
securities, payments to be made by the Disbursing Agent pursuant to the Plan
shall be made in Cash or by check drawn on a domestic bank or by wire transfer
from a domestic bank.
9.16 Further Authorizations. The Plan Proponents, Reorganized
Celotex and Reorganized Carey Canada, if and to the extent necessary, shall
seek such orders, judgments, injunctions and rulings that any of them deem
necessary to carry out further the intentions and purposes of, and give full
effect to the provisions of, the Plan.
9.17 Transfer Taxes. The issuance, transfer, or exchange of
any of the securities issued under, or the transfer of any other assets or
property pursuant to the Plan or the making or delivery of an instrument of
transfer under the Plan shall not (and the Confirmation Order shall so order),
pursuant to Section 1146 of the Bankruptcy Code, be taxed under any law
imposing a stamp tax, transfer tax or other similar tax.
9.18 Recordable Order. The Confirmation Order shall be
declared to be in recordable form, and shall be accepted by any recording
officer for filing and recording purposes without further or additional orders,
certifications or other supporting documents.
9.19 Effectuating Documents And Further Transactions. The
Chief Executive Officer, President, or any Vice President of each Debtor shall
be authorized to execute, deliver, file or record such contracts, instruments,
releases, indentures and other agreements or documents and take or direct such
actions as may be necessary or appropriate to effectuate and further evidence
the terms and conditions of the Plan. The Secretary or any Assistant
- 38 -
<PAGE> 46
Secretary of each Debtor shall be authorized to certify or attest to any of the
foregoing actions.
9.20 Corporate Action. All matters provided for under the
Plan involving the corporate structure of the Debtors, Reorganized Celotex or
Reorganized Carey Canada, or any corporate action to be taken by, or required
of the Debtors, Reorganized Celotex or Reorganized Carey Canada, shall be
deemed to have occurred and be effective as provided herein, and shall be
authorized and approved in all respects without any requirement for further
action by the stockholders or directors of any of such entities. Upon the
Confirmation Date, and until the Trust as shareholder shall have elected
members of the board of directors of Reorganized Celotex, the board of
directors of Celotex shall be composed of three directors. These three
directors of Celotex upon the Confirmation Date shall be Dennis M. Ross, Walter
F. Johnsey and William B. Long. Mr. Ross, Mr. Johnsey and Mr. Long shall serve
until replaced by order of the Bankruptcy Court, shareholder action or the
election of a board of directors by the Trust as shareholder, whichever is
first. Further, the shareholder(s) of Celotex and the Plan Proponents may agree
prior to the Effective Date that Jasper will elect Mr. Ross as the sole
director to serve until replaced by order of the Bankruptcy Court or the
election of a board of directors by the Trust, whichever is first. The
corporate charter and bylaws of Celotex shall be amended to permit the board of
directors to be composed of a sole director as soon as practicable following
the Confirmation Date. Also upon the Confirmation Date, and until the Trust as
shareholder shall have elected members of the board of directors of Reorganized
Carey Canada, the board of directors of Carey Canada shall be composed of two
directors. These two directors of Carey Canada upon the Confirmation Date shall
be Jean Paul Bolduc and Jacques Plante. Mr. Bolduc and Mr. Plante shall serve
until replaced by order of the Bankruptcy Court or the election of a board of
directors by the Trust as shareholder, whichever is first.
ARTICLE 10
INJUNCTIONS, RELEASES AND DISCHARGE
10.1 Discharge And Release. Except as specifically provided
in the Plan or in the Confirmation Order, effective on the Effective Date,
Confirmation shall (a) discharge the Debtors, Reorganized Celotex, Reorganized
Carey Canada and the Trust from any and all Claims including any Claim of a
kind specified in Section 502(g), 502(h) or 502(i) of the Bankruptcy Code,
whether or not (i) a proof of claim based on such Claim was filed or deemed
filed under Section 501 of the Bankruptcy Code, or such Claim was listed on the
Schedules of either Debtor, (ii) such Claim is or was Allowed under Section 502
of the Bankruptcy Code, or (iii) the holder of such Claim has voted on or
accepted the Plan and (b) terminate all rights and interests of holders of
Interests in respect of the Debtors, Reorganized Celotex, Reorganized Carey
Canada or the Trust. Except as specifically provided in the Plan to the
contrary, the rights that are provided in the Plan shall be in complete
settlement, satisfaction, release and discharge of and shall void and
extinguish (x) all Claims
- 39 -
<PAGE> 47
against, Liens on and Interests in the Debtors, Reorganized Celotex,
Reorganized Carey Canada or the Trust or the assets and properties of the
Debtors, Reorganized Celotex, Reorganized Carey Canada or the Trust, (y) all
causes of action, whether known or unknown, either directly or derivatively
through the Debtors, Reorganized Celotex or Reorganized Carey Canada against
the Released Parties or the VPSA Released Parties based on the same subject
matter as any of the Claims, Liens or Interests described in subpart (x) of
this Article 10.1, and (z) all causes of action of the Debtors, Reorganized
Celotex and Reorganized Carey Canada, whether known or unknown, against the
Released Parties and the VPSA Released Parties. Further, but in no way limiting
the generality of the foregoing, except as otherwise specifically provided in
the Plan, any Entity accepting any distributions or rights pursuant to the Plan
shall be presumed conclusively to have released the Released Parties and the
VPSA Released Parties from any cause of action based on the same subject matter
as the Claim or Interest on which the distribution or right is received.
10.2 Discharge Injunction. Except as specifically provided in
the Plan to the contrary, the satisfaction, release and discharge set forth in
Article 10.1 shall also operate as an injunction prohibiting and enjoining the
commencement or continuation of any action, the employment of process or any
act to collect, recover from or offset (a) any Claim against or Interest in the
Debtors, Reorganized Celotex, Reorganized Carey Canada or the Trust by any
Entity and (b) any cause of action, whether known or unknown, against the
Released Parties or the VPSA Released Parties based on the same subject matter
as any Claim or Interest described in subpart (a) of this Article 10.2.
10.3 The Supplemental Injunction, The Third Party Injunction
And The VPSA Injunction. In order to supplement the injunctive effect of the
Discharge Injunction, and pursuant to Sections 524(g) or 105(a) of the
Bankruptcy Code (or both), the Confirmation Order shall provide for the
following injunctions to take effect as of the Confirmation Date:
(a) Supplemental Injunction.
(1) Terms. In order to preserve and promote the
settlements contemplated by and provided for in the Plan and to supplement,
where necessary, the injunctive effect of the discharge both provided by
Sections 1141 and 524 of the Bankruptcy Code and as described in this Article,
and pursuant to the exercise of the equitable jurisdiction and power of the
Bankruptcy Court under Sections 524(g) or 105(a) of the Bankruptcy Code (or
both), all Entities which have held or asserted, which hold or assert or which
may in the future hold or assert any claim, demand or cause of action
(including, but not limited to, any Asbestos Claim, or any claim or demand for
or respecting any Trust Expense) against the Released Parties (or any of them)
based upon, relating to, arising out of, or in any way connected with any
Claim, whenever and wherever arising or asserted (including, but not limited
to, all thereof in the nature of or sounding in tort, contract, warranty or any
other theory of law, equity or admiralty) or Interest shall be permanently
stayed, restrained and enjoined from taking any action for the purpose of
directly or indirectly collecting, recovering or receiving payments,
satisfaction or recovery with respect to any such claim, demand, cause of
action or Interest, including, but not limited to:
- 40 -
<PAGE> 48
(A) commencing or continuing in any manner any
action or other proceeding of any kind with respect to any such claim, demand,
cause of action or Interest against any of the Released Parties, or against the
property of any Released Party with respect to any such claim, demand, cause of
action or Interest;
(B) enforcing, attaching, collecting or
recovering, by any manner or means, any judgment, award, decree or order
against any of the Released Parties or against the property of any Released
Party with respect to any such claim, demand, cause of action or Interest;
(C) creating, perfecting or enforcing any Lien of
any kind against any Released Party or the property of any Released Party with
respect to any such claim, demand, cause of action or Interest;
(D) except as otherwise specifically provided in
the Plan, asserting or accomplishing any setoff, right of subrogation,
indemnity, contribution or recoupment of any kind against any obligation due
any Released Party or against the property of any Released Party with respect
to any such claim, demand, cause of action or Interest; and
(E) taking any act, in any manner, in any place
whatsoever, that does not conform to, or comply with, the provisions of the
Plan, the Plan Documents or the Trust Documents relating to such claim, demand,
cause of action or Interest.
(2) Reservations. Notwithstanding anything to the
contrary above, this Supplemental Injunction shall not impair:
(A) the rights of Entities to assert any claim
(including, but not limited to, any Claim), demand, debt, obligation or
liability against (i) Dana, (ii) Rapid-American or (iii) Allied;
(B) the rights of Entities to the treatment
accorded them under Articles 2 and 4, as applicable, including the rights of
Entities with Asbestos Claims to assert such Asbestos Claims solely against the
Trust in accordance with the Asbestos Claims Resolution Procedures;
(C) the rights of Entities to assert any Claim,
debt, obligation or liability for payment of Trust Expenses solely against the
Trust;
(D) the rights of the Trust, Reorganized Celotex
or Reorganized Carey Canada to prosecute any Asbestos Insurance Action;
(E) the rights of the Bond Sureties/Insurers as
set forth in the Plan, including Articles 5.2 and 11.7 of the Plan; or
- 41 -
<PAGE> 49
(F) the rights of Entities to assert any Claim,
debt, obligation or liability for payment against an Asbestos Insurance Company
that is not a Released Party unless otherwise enjoined by order of the Court.
(b) Third Party Injunction.
(1) Terms. In order to preserve and promote the
settlements contemplated by and provided for in the Plan and agreements
previously approved by the Bankruptcy Court and pursuant to the exercise of the
equitable jurisdiction and power of the Bankruptcy Court under Sections 524(g)
or 105(a) of the Bankruptcy Code (or both), all Entities which have held or
asserted, which hold or assert or which may in the future hold or assert any
claim or demand (including, but not limited to, any Asbestos Claim, or any
claim or demand for or respecting any Trust Expense), against the Protected
Parties (or any of them) based upon, relating to, arising out of, or in any way
connected with any Asbestos Claim (a "Third Party Claim") shall be permanently
stayed, restrained and enjoined, from taking any action for the purpose of
directly or indirectly collecting, recovering or receiving payments or recovery
with respect to any such Third Party Claim, including, but not limited to:
(A) commencing or continuing in any manner any
action or other proceeding of any kind with respect to any such Third Party
Claim against any Protected Party or against the property of any Protected
Party with respect to any such Third Party Claim;
(B) enforcing, attaching, collecting or
recovering, by any manner or means, any judgment, award, decree or order
against any Protected Party or against the property of any Protected Party with
respect to any such Third Party Claim;
(C) creating, perfecting or enforcing any Lien of
any kind against any Protected Party or the property of any Protected Party
with respect to any such Third Party Claim;
(D) commencing any action or other proceeding of
any kind or enforcing, attaching, collecting or recovering, by any manner or
means, any judgment, award, decree or order, with respect to any such Third
Party Claim against a Protected Party that pursuant to the Plan or after the
Confirmation Date makes a loan to any of the Released Parties, or creating,
perfecting, enforcing, attaching, recovering, upsetting or impairing any Lien
made in connection with such loan by reason of any such Third Party Claim;
(E) except as otherwise specifically provided in
the Plan, asserting or accomplishing any setoff, right of subrogation or
contribution or recoupment of any kind against any obligation due any Protected
Party or against the property of any Protected Party with respect to any such
Third Party Claim; and
- 42 -
<PAGE> 50
(F) taking any act, in any manner, in any place
whatsoever, that does not conform to, or comply with, the provisions of the
Plan, the Plan Documents or the Trust Documents relating to such Third Party
Claim.
(2) Reservations. Notwithstanding anything to the
contrary above, this Third Party Injunction shall not impair:
(A) the rights of Entities to assert any claim
(including, but not limited to, any Claim), demand, debt, obligation or
liability against (i) Dana, (ii) Rapid-American or (iii) Allied, except to the
extent that such entity has executed and performed under a Predecessor
Settlement Agreement;
(B) the rights of Entities with Asbestos Claims
to assert such Asbestos Claims solely against the Trust in accordance with the
Asbestos Claims Resolution Procedures;
(C) the rights of Entities to assert any Claim,
debt, obligation or liability for payment of Trust Expenses solely against the
Trust;
(D) the rights of the Trust, Reorganized Celotex
or Reorganized Carey Canada to prosecute any Asbestos Insurance Action;
(E) the rights of the Bond Sureties/Insurers as
set forth in the Plan, including Articles 5.2 and 11.7 of the Plan; or
(F) the rights of Entities to assert any Claim,
debt, obligation or liability for payment against an Asbestos Insurance Company
that is not a Protected Party unless otherwise enjoined by order of the Court.
(c) Veil Piercing Settlement Injunction.
(1) Terms. In order to preserve and promote the
settlements contemplated by and provided for in the Plan, including the VPSA,
and pursuant to the VPSA and the exercise of the equitable jurisdiction and
power of the Bankruptcy Court under Sections 524(g) or 105(a) of the Bankruptcy
Code (or both), the Confirmation Order shall contain a permanent injunction in
favor of the VPSA Released Parties, which shall:
(A) enjoin forever all Entities from taking any
legal action against any of the VPSA Released Parties for the purpose of
directly or indirectly collecting, recovering or receiving payment or recovery
with respect to any Claim or Interest addressed by the Plan, including without
limitation, any Asbestos Claim;
(B) bar forever any action against any of the
VPSA Released Parties which alleges or seeks in any way to establish that such
VPSA Released Party is directly or indirectly liable for Claims (including,
without limitation, Asbestos Claims) against any of the Debtors by reason of
such VPSA Released Party's:
- 43 -
<PAGE> 51
(i) ownership of a financial interest in a
Debtor, in a past or present Affiliate of a Debtor or in a predecessor in
interest of a Debtor;
(ii) involvement in the management of a
Debtor, of a past or present Affiliate of a Debtor or of a predecessor in
interest of a Debtor;
(iii) service as an officer, director or
employee of a Debtor, of a past or present Affiliate of a Debtor or of a
predecessor in interest of a Debtor;
(iv) provision of insurance to a Debtor; or
(v) involvement in a transaction changing the
corporate structure of, or in a loan, dividend, spinoff, acquisition,
disposition or other financial transaction affecting the financial condition
of, a Debtor or a "related party" (as defined in Section 524(g)(4)(A)(iii) of
the Bankruptcy Code) of a Debtor, including, but not limited to, involvement in
providing financing (debt or equity) or advice to an Entity involved in such a
transaction, or acquiring or selling a financial interest in an Entity as part
of such a transaction; and
(C) direct that all Asbestos Claims shall be
forever channeled to and enforceable solely against the Trust.
(2) Reservations. Notwithstanding anything to the
contrary above, this Veil Piercing Settlement Injunction shall not impair:
(A) the rights of Entities to assert any claim
(including, but not limited to, any Claim), demand, debt, obligation or
liability against (i) Dana, (ii) Rapid-American or (iii) Allied, except to the
extent that such entity has executed and performed under a Predecessor
Settlement Agreement;
(B) the rights of Entities with Asbestos Claims
to assert such Asbestos Claims solely against the Trust in accordance with the
Asbestos Claims Resolution Procedures;
(C) the rights of Entities to assert any Claim,
debt, obligation or liability for payment of Trust Expenses solely against the
Trust;
(D) the rights of the Trust, Reorganized Celotex
or Reorganized Carey Canada to prosecute any Asbestos Insurance Action; or
(E) the rights of the Bond Sureties/Insurers as
set forth in the Plan, including Articles 5.2 and 11.7 of the Plan.
10.4 Dismissal And Release Of Affiliate Action And Equitable
Subordination Action. Notwithstanding any other provision of the Plan to the
contrary, on the Effective
- 44 -
<PAGE> 52
Date the Affiliate Action and the Equitable Subordination Action shall be
deemed dismissed with prejudice without further action of the parties thereto
and all causes of action asserted therein shall be released and extinguished.
If any Entity commences or reinstates the Affiliate Action or Equitable
Subordination Action against JWC, Jasper, Apache, Drummond Company, or their
respective affiliates, officers, directors, shareholders, employees, agents or
beneficiaries, and secures a judgment against any of said parties that inures
to the benefit of the Trust, then the Trust shall indemnify said parties for
the portion of said payment by said parties that inures to the benefit of the
Trust.
10.5 Reservation Of Rights. Notwithstanding any other
provision of the Plan to the contrary, the satisfaction, release and discharge
and the Injunctions set forth in Articles 10.1, 10.2 and 10.3, respectively,
shall not serve to satisfy, discharge, release or enjoin claims by the Trust,
Reorganized Celotex, Reorganized Carey Canada, or any other Entity, as the case
may be, against (a)(1) Dana (including, but not limited to, the Dana
Liabilities) (2) Rapid-American or (3) Allied, to the extent any such party has
not executed and performed under a Predecessor Settlement Agreement, (b) the
Trust for payment of Asbestos Claims in accordance with the Asbestos Claims
Resolution Procedures, (c) the Trust for the payment of Trust Expenses or (d)
any Asbestos Insurance Company that has not executed and performed under an
Asbestos Insurance Settlement Agreement.
10.6 Rights Against Non-Debtors Under Environmental Laws.
Notwithstanding anything to the contrary contained herein, the injunctions and
releases set forth in this Article 10 shall not impair the rights or causes of
action of the United States of America against non-debtor parties under
applicable Environmental Laws, and such rights and causes of action shall not
be discharged or otherwise adversely affected by the Plan.
10.7 Disallowed Claims And Disallowed Interests. On and after
the Effective Date, the Debtors shall be fully and finally discharged of any
liability or obligation on a disallowed Claim or a disallowed Interest, and any
Order creating a disallowed Claim or a disallowed Interest which is not a Final
Order as of the Effective Date solely because of an Entity's right to move for
reconsideration of such Order pursuant to Section 502 of the Bankruptcy Code or
Bankruptcy Rule 3008 shall nevertheless become and be deemed to be a Final
Order on the Effective Date. The Confirmation Order, except as otherwise
provided herein, shall constitute an Order: (a) disallowing all Claims (other
than Asbestos Claims) and Interests to the extent such Claims and Interests are
not allowable under any provision of Section 502 of the Bankruptcy Code,
including, but not limited to, time-barred Claims and Interests, and Claims for
unmatured interest, and (b) except as the Trust Documents may otherwise provide
with respect to Bonded Asbestos Personal Injury Claims, disallowing or
subordinating, as the case may be, any Claims for penalties or punitive damages
or any other damages not constituting compensatory damages.
- 45 -
<PAGE> 53
ARTICLE 11
MATTERS INCIDENT TO PLAN CONFIRMATION
11.1 Term Of Certain Injunctions And Automatic Stay.
(a) All of the injunctions and/or automatic stays
provided for in or in connection with the Reorganization Cases, whether
pursuant to Section 105, Section 362 or any other provision of the Bankruptcy
Code or other applicable law, in existence immediately prior to Confirmation
shall remain in full force and effect until the Injunctions become effective,
and thereafter if so provided by the Plan, the Confirmation Order or by their
own terms. In addition, on and after Confirmation, the Plan Proponents may seek
such further orders as they may deem necessary to preserve the status quo
during the time between Confirmation and the Effective Date.
(b) Each of the Injunctions shall become effective on the
Effective Date and shall continue in effect at all times thereafter.
Notwithstanding anything to the contrary contained in the Plan, all actions in
the nature of those to be enjoined by the Injunctions shall be enjoined during
the period between the Confirmation Date and the Effective Date.
(c) In order to preserve the Debtors' and the Trust's
ability to obtain effective relief in connection with the avoidance and other
claims that the Debtors have asserted in the Supersedeas Bond Adversary
Proceeding, all outstanding injunctions entered by the Bankruptcy Court,
pursuant to Section 105 of the Bankruptcy Code or otherwise, enjoining holders
of Bonded Claims from seeking to proceed against any supersedeas bonds securing
judgments against the Debtors or against any Bond Sureties/Insurers that
provided or obtained such supersedeas bonds, shall, except as otherwise
provided herein and except those as to which the Debtors, the Trustees and the
holder of the applicable Bonded Claim shall have agreed otherwise with
Bankruptcy Court approval, remain in full force and effect after the
Confirmation Date; provided, however, that the Bankruptcy Court shall have
authority by Final Order to vacate or modify any such injunction, except any
permanent injunction entered by Final Order. The Order Granting Debtors' Motion
for Order Authorizing and Directing Transfer of Released Bond Proceeds to the
Debtors by the Sureties, entered by the Bankruptcy Court and dated October 21,
1992, shall, subject to further order of the Bankruptcy Court, remain in full
force and effect after the Confirmation Date.
11.2 Certain Settled Matters Relating To The Wellington
Agreement. As a settlement of the Wellington Credit Claims and the Wellington
Prospective Adjustment Claims among the Debtors and the holders of such Claims,
the holders of the Wellington Credit Claims shall be deemed to have Allowed
Administrative Claims collectively in the aggregate amount of $6,779,721 and
the holders of the Wellington Prospective Adjustment Claims shall be deemed to
have Allowed Administrative Claims collectively in the aggregate amount of
$220,279. Such amounts shall be paid on or before the Effective Date and the
unpaid balance thereof shall accrue interest from and after the Confirmation
Date at the Federal Funds Rate.
- 46 -
<PAGE> 54
11.3 No Liability For Tax Claims. Unless a taxing authority
has asserted a Claim against the Debtors before the bar date established
therefor, no Claim of such authority shall be Allowed against the Debtors,
Reorganized Celotex or Reorganized Carey Canada for taxes, penalties, interest,
additions to tax or other charges arising out of the failure, if any, of the
Debtors, the Consolidated Affiliates, the Jasper Parties or any other Entity to
have paid tax or to have filed any tax return (including, but not limited to,
any income tax return or franchise tax return) in or for any prior year or
arising out of an audit of any return for a period before the Petition Date.
11.4 No Successor Liability. Except as otherwise expressly
provided in the Plan, the Plan Proponents, Reorganized Celotex, and Reorganized
Carey Canada do not, pursuant to the Plan or otherwise, assume, agree to
perform, pay or indemnify creditors or otherwise have any responsibilities for
any liabilities or obligations of the Debtors relating to or arising out of the
operations of or assets of the Debtors, whether arising prior to, on or after
the Confirmation Date. Neither the Plan Proponents, Reorganized Celotex,
Reorganized Carey Canada nor the Trust is, or shall be, a successor to any of
the Debtors by reason of any theory of law or equity, and none shall have any
successor or transferee liability of any kind or character, except that
Reorganized Celotex, Reorganized Carey Canada and the Trust shall assume the
obligations specified in the Plan and the Confirmation Order.
11.5 No Liability To The Jasper Parties Or The Drummond
Interests. Except for the payments contemplated by Article 9.4 of the Plan and
the duties and obligations set forth in the JWC Stock Purchase Agreement, the
Tax Cooperation and Indemnification Agreement and the Claims Agreement, none of
the Plan Proponents, the Asbestos Property Damage Claimants Committee,
Reorganized Celotex, Reorganized Carey Canada and their respective officers,
directors, stockholders, members, representatives, attorneys, accountants,
financial advisors and agents, nor the Consolidated Affiliates, shall have any
liability to any of the Jasper Parties or the Drummond Interests.
11.6 Asbestos Insurance Actions. The Asbestos Insurance
Actions shall be preserved by the Debtors for prosecution by Reorganized
Celotex or Reorganized Carey Canada subsequent to the Confirmation of the Plan.
As of such date subsequent to the Effective Date on which the Trustees shall
confirm in writing that the Trust is in a position to assume such
responsibility, such actions, along with the rights and obligations of the
Debtors, Reorganized Celotex and Reorganized Carey Canada with respect to
insurance for Asbestos Claims, shall be assigned to and vested in the Trust as
the representative of the Estates of Celotex or Carey Canada, as the case may
be, each being appointed by the Bankruptcy Court in accordance with Section
1123(b)(3) of the Bankruptcy Code without any further action by the Debtors,
Reorganized Celotex, Reorganized Carey Canada, the Trust or the Bankruptcy
Court. Such Asbestos Insurance Actions shall be so vested free and clear of all
Liens, security interests and other Claims or causes of action, except as
otherwise provided in the Plan. On or after the Effective Date, Reorganized
Celotex and Reorganized Carey Canada, until such time as the Asbestos Insurance
Actions have been vested in the Trust, and then the Trust, shall be entitled to
compromise or settle the Asbestos Insurance Actions; provided, however, that
any such compromise or settlement shall require the consent of the Legal
Representative and the Trust Advisory Committee and the approval of the
Bankruptcy Court.
- 47 -
<PAGE> 55
Notwithstanding anything to the contrary contained herein, the Trust shall not
compromise or resolve insurance coverage under any Asbestos Insurance Policy
except with respect to Asbestos Claims and Trust Expenses.
11.7 Supersedeas Bond Actions.
(a) Preserved Actions. The Supersedeas Bond Actions shall
be preserved by the Debtors for prosecution by Reorganized Celotex or
Reorganized Carey Canada subsequent to the Confirmation of the Plan.
(b) Assumption By The Trust. As of such date subsequent
to the Effective Date on which the Trustees shall confirm in writing that the
Trust is in a position to assume such responsibility, such Supersedeas Bond
Actions, along with the rights and obligations of the Debtors, Reorganized
Celotex and Reorganized Carey Canada shall be assigned to and vested in the
Trust as the representative of the Estates of Celotex or Carey Canada, as the
case may be, each being appointed by the Bankruptcy Court in accordance with
Section 1123(b)(3) of the Bankruptcy Code without any further action by the
Debtors, Reorganized Celotex, Reorganized Carey Canada, the Trust or the
Bankruptcy Court. Such Supersedeas Bond Actions shall be so vested free and
clear of all Liens, security interests and other Claims or causes of action,
except as otherwise provided in the Plan.
(c) Reservation of Bond Sureties/Insurers Rights.
Notwithstanding anything to the contrary contained herein, nothing in the Plan
shall be deemed to impair, compromise or otherwise affect any defense or
counterclaim asserted by any of the Bond Sureties/Insurers or any other
defendant in the Supersedeas Bond Actions to any claim of the Debtors,
including, but not limited to, any defense based on a right of setoff or
recoupment asserted therein by any of the Bond Sureties/Insurers. Moreover,
nothing in the Plan shall be deemed to enjoin or prevent the assertion and
exercise of, or otherwise compromise or impair in any way, any right of setoff
or recoupment, or any other right, claim or defense to payment, that any of the
Bond Sureties/Insurers may have under the Prepetition Settlement and Bonding
Agreements or applicable law, as shall be determined, or, if resolved by
settlement among the parties (subject to subpart (d) of this Article 11.7,
below) approved, by the Bankruptcy Court (or a court on appeal or certiorari
from an Order of the Bankruptcy Court). Any right of setoff or recoupment shall
be satisfied out of the assets in the possession of the Bond Sureties/Insurers
and any claims or liabilities including, but not limited to, claims for
premiums for bonds provided by the Bond Sureties/Insurers and any amounts which
may be or become due under or in connection with the Prepetition Settlement and
Bonding Agreements shall be paid by the Trust.
(d) Compromising and Settling. Until a Final Order is
entered confirming the Plan, the Plan Proponents, with the exception of the
Debtors, may compromise and settle any Supersedeas Bond Actions, and, upon such
compromise or settlement, the Debtors will promptly seek Court approval of such
settlements; provided, however, that no such settlements shall have the direct
or indirect effect of causing Jasper or Apache or any of their respective
officers, directors or employees to have any liability whether direct, indirect
or by way of indemnity or contribution. On or after the Effective Date,
Reorganized Celotex
- 48 -
<PAGE> 56
and Reorganized Carey Canada, until such time as the Supersedeas Bond Actions
have been vested in the Trust, and then the Trust, shall be entitled to
compromise or settle the Supersedeas Bond Actions; provided, however, that any
such compromise or settlement shall require the consent of all of the Trustees
and the approval of the Bankruptcy Court on notice to all parties to the
Supersedeas Bond Action.
11.8 Indemnity Rights Against Dana. Unless Dana shall have
entered into a Predecessor Settlement Agreement, Celotex's indemnity and other
rights against Dana (including, but not limited to, the Dana Liabilities),
relating to Asbestos Claims or Asbestos Insurance Policies shall be preserved
for prosecution subsequent to the Confirmation of the Plan, and such rights
against Dana (including, but not limited to, the Dana Liabilities), if any,
shall be deemed to be transferred to the Trust and shall be vested in the
Trust, as of the Effective Date, as the representative of the Estate of
Celotex, being appointed by the Bankruptcy Court in accordance with Section
1123(b)(3) of the Bankruptcy Code, and a finding to such effect shall be made
in, and be a part of, the Confirmation Order, without any further action by
Celotex, Reorganized Celotex, the Trust or the Bankruptcy Court. The Trust
shall have the authority and obligation to afford to holders of Allowed
Asbestos Claims whatever may be required to enable such holders to enforce the
Trust's indemnity rights against Dana (including, but not limited to, the Dana
Liabilities), which holders shall have the same authority granted to the Trust
under Section 1123(b)(3) of the Bankruptcy Code. Such indemnity and other
rights shall be so vested free and clear of all Liens, security interests and
other Claims or causes of action, except as otherwise provided in the Plan.
11.9 Institution And Maintenance Of Legal And Other
Proceedings. As of such date subsequent to the Effective Date on which the
Trustees shall confirm in writing that the Trust is in a position to assume
such responsibility, the Trust shall be empowered to initiate, prosecute,
defend and resolve all legal actions and other proceedings related to any
asset, liability or responsibility of the Trust, including Asbestos Insurance
Actions, Supersedeas Bond Actions, Indirect Asbestos Claims, actions with
respect to Wellington Claims and actions against Dana, Allied or
Rapid-American. The Trust shall be empowered to initiate, prosecute, defend and
resolve all such actions in the name of Celotex or Carey Canada if deemed
necessary or appropriate by the Trust. The Trust shall be responsible for the
payment of all damages, awards, judgments, settlements, expenses, costs, fees
and other charges incurred subsequent to Confirmation arising from or
associated with any legal action or other proceeding which is the subject of
this Article 11.9 and shall pay or reimburse all deductibles, retrospective
premium adjustments or other charges (not constituting Indirect Asbestos
Claims) which may arise from the receipt of insurance proceeds by the Trust.
11.10 Revesting. Except as otherwise expressly provided in
the Plan, on the Effective Date, Reorganized Celotex and Reorganized Carey
Canada each shall be vested with all of the assets and property of their
respective former Estate, free and clear of all Claims, Liens, charges and
other interests of holders of Claims or Interests, and may each operate its
business free of any restrictions imposed by the Bankruptcy Code or by the
Bankruptcy Court.
11.11 Retention And Enforcement Of Trust Causes Of Action.
Pursuant to Section 1123(b)(3)(B) of the Bankruptcy Code, except as otherwise
provided in the Plan, the
- 49 -
<PAGE> 57
Trust shall retain and have the exclusive right to enforce against any Entity
any and all of the Trust Causes of Action, with the proceeds of the recovery of
any such actions to be deposited in the Trust; provided, however, that nothing
herein shall alter, amend or modify the injunctions, releases or discharges
provided herein.
11.12 Preservation Of Insurance Claims. The Debtors' and the
Released Parties' discharge and release from all Claims as provided herein
shall neither diminish nor impair the enforceability of any of the Asbestos
Insurance Policies or the indemnity and other rights against Dana. The Trust
is, and shall be deemed to be, for all purposes, including, but not limited to,
for purposes of insurance and indemnitee, the successor to Celotex and Carey
Canada in respect of Asbestos Claims. It shall be a condition precedent to the
determination, allowance or payment of any Allowed Asbestos Claim, irrespective
of the manner of resolution thereof, that any insurer or indemnitor from whom
coverage, reimbursement or indemnitee is sought with respect to such Asbestos
Claim has been tendered the opportunity to participate in the resolution and
defense of such Asbestos Claim. The opportunity to participate in the
resolution and defense of such Asbestos Claim shall be in all respects subject
to the Claims Resolution Procedures provided for in the Trust Agreement and
limited to contentions that the Claim should not be Allowed or should be
Allowed in a lesser amount under such procedures. An Allowed Asbestos Claim
shall be, and be deemed to be, a judgment against the Trust (as successor for
all purposes to the liabilities of Celotex and Carey Canada in respect of
Asbestos Claims) in the Allowed Amount of such Allowed Asbestos Claim.
ARTICLE 12
RESOLUTION OF DISPUTED CLAIMS
12.1 Disputed Claims.
(a) Objection Deadline. As soon as practicable, but in no
event later than six months after the entry of the Confirmation Order, unless
otherwise ordered by the Bankruptcy Court, objections to Claims (other than
Asbestos Claims, which shall be treated as provided in the Asbestos Claims
Resolution Procedures) shall be filed with the Bankruptcy Court, provided that
the Reorganized Debtors may seek to extend such period (or any extended period)
for cause.
(b) Prosecution Of Objections. After the Effective Date,
only Reorganized Celotex and Reorganized Carey Canada shall have authority to
file objections to Claims (other than Asbestos Claims) and litigate to
judgment, settle or withdraw such objections to Disputed Claims. After the
Effective Date, only the Trust (and to the extent applicable, the Property
Damage Claims Administrator) shall have authority to file objections to
Asbestos Claims and litigate to judgment, settle or withdraw such objections to
Asbestos Claims, all in accordance with the Trust and the Asbestos Claims
Resolution Procedures.
- 50 -
<PAGE> 58
ARTICLE 13
MISCELLANEOUS
13.1 Jurisdiction. Until the Reorganization Cases are closed,
the Bankruptcy Court shall retain the fullest and most extensive jurisdiction
that is permissible, including that necessary to ensure that the purposes and
intent of the Plan are carried out. Except as otherwise provided in the Plan,
the Bankruptcy Court shall retain jurisdiction to hear and determine all Claims
against and Interests in the Debtors, and to adjudicate and enforce the
Asbestos Insurance Actions, the Supersedeas Bond Actions, and all other causes
of action which may exist on behalf of the Debtors. Nothing contained herein
shall prevent the Debtors, Reorganized Celotex, Reorganized Carey Canada or the
Trust from taking such action as may be necessary in the enforcement of any
Asbestos Insurance Action, Supersedeas Bond Action or other cause of action
which the Debtors have or may have and which may not have been enforced or
prosecuted by the Debtors, which Asbestos Insurance Action, Supersedeas Bond
Action or other cause of action shall survive Confirmation of the Plan and
shall not be affected thereby except as specifically provided herein.
13.2 General Retention. Following the Confirmation of the
Plan, the administration of the Reorganization Cases will continue at least
until the completion of the transfers contemplated to be accomplished on the
Effective Date. Moreover, the Trust shall be subject to the continuing
jurisdiction of the Bankruptcy Court in accordance with the requirements of
Section 468B of the IRC and the regulations issued pursuant thereto. The
Bankruptcy Court shall also retain jurisdiction for the purpose of
classification of any Claim and the re-examination of Claims which have been
Allowed for purposes of voting, and the determination of such objections as may
be filed with the Bankruptcy Court with respect to any Claim. The failure by
the Plan Proponents to object to, or examine, any Claim for the purposes of
voting, shall not be deemed a waiver of the right of the Debtors, Reorganized
Carey Canada, Reorganized Celotex or the Trust, as the case may be, to object
to or reexamine such Claim in whole or part.
13.3 Specific Purposes. In addition to the foregoing, the
Bankruptcy Court shall retain jurisdiction for the following specific purposes
after Confirmation of the Plan:
(a) to modify the Plan after Confirmation, pursuant to
the provisions of the Bankruptcy Code and the Bankruptcy Rules;
(b) to correct any defect, cure any omission, reconcile
any inconsistency or make any other necessary changes or modifications in or to
the Plan, the Trust Documents (in the case of the Asbestos Property Damage
Claims Resolution Procedures, or in the case of the Trust Agreement, matters
that alter the powers of the Property Damage Claims Administrator or the PD
Advisory Committee or the payment by the Trust of Allowed Property Damage
Claims ("PD Amendments"), with the consent or upon the motion of the
- 51 -
<PAGE> 59
Property Damage Claims Administrator) or the Confirmation Order as may be
necessary to carry out the purposes and intent of the Plan, including the
adjustment of the date(s) of performance under the Plan in the event the
Effective Date does not occur as provided herein so that the intended effect of
the Plan may be substantially realized thereby;
(c) to assure the performance by the Disbursing Agent and
the Trust of their respective obligations to make distributions under the Plan;
(d) to enforce and interpret the terms and conditions of
the Plan, the Plan Documents, and the Trust Documents;
(e) to enter such orders or judgments, including, but not
limited to, injunctions (i) as are necessary to enforce the title, rights and
powers of the Debtors, Reorganized Celotex, Reorganized Carey Canada and the
Trust and (ii) as are necessary to enable holders of Claims to pursue their
rights against any Entity that may be liable therefor pursuant to applicable
law or otherwise, including, but not limited to, Court Orders;
(f) to hear and determine any motions or contested
matters involving taxes, tax refunds, tax attributes, tax benefits and similar
or related matters with respect to the Debtors, Reorganized Celotex,
Reorganized Carey Canada or the Trust arising on or prior to the Effective
Date, arising on account of transactions contemplated by the Plan, or relating
to the period of administration of the Reorganization Cases;
(g) to hear and determine all applications for
compensation of professionals and reimbursement of expenses under Sections 330,
331 or 503(b) of the Bankruptcy Code;
(h) to hear and determine any causes of action arising
during the period from the Petition Date through the Effective Date, or in any
way related to the Plan or the transactions contemplated hereby, against the
Debtors, Reorganized Celotex, Reorganized Carey Canada, the Trust, the
Trustees, the Official Committees or the Legal Representative and their
respective officers, directors, stockholders, employees, members, attorneys,
accountants, financial advisors, representatives and agents;
(i) to determine any and all motions pending as of
Confirmation for the rejection, assumption or assignment of executory contracts
or unexpired leases and the allowance of any Claim resulting therefrom;
(j) to determine such other matters and for such other
purposes as may be provided in the Confirmation Order;
(k) to consider and act on the compromise and settlement
of any Claim against or Interest in the Debtors or their Estates;
(l) to determine all questions and disputes regarding
title to the assets of the Debtors or their Estates or the Trust;
- 52 -
<PAGE> 60
(m) to construe, enforce and resolve all questions and
disputes relating to collective bargaining or employment agreements existing or
approved by the Bankruptcy Court at or before Confirmation;
(n) to hear and determine the Asbestos Insurance Actions
and the Supersedeas Bond Actions, to construe and take any action to enforce
any Asbestos Insurance Settlement Agreement or settlement of any Supersedeas
Bond Action and the releases executed and exchanged in connection therewith,
and to issue such orders as may be necessary for the execution, consummation
and implementation of any Asbestos Insurance Settlement Agreement or settlement
of any Supersedeas Bond Action, and to determine all questions and issues
arising under or with respect to any Asbestos Insurance Settlement Agreement or
settlement of any Supersedeas Bond Action;
(o) to hear and determine any other matters related
hereto, including the implementation and enforcement of all orders entered by
the Bankruptcy Court in these Reorganization Cases; and
(p) to enter such orders as are necessary to implement
and enforce the Injunctions and the other injunctions described herein.
13.4 Interpretation of Certain Terms. When used in the Plan,
the term "Claim" shall be broadly construed to include all manner and type of
claim, whenever and wherever such claim may arise, and shall include, but not
be limited to, Asbestos Claims. Likewise, when used in the Plan, the term
"Asbestos Personal Injury Claim" shall be broadly construed and shall include,
but not be limited to, claims that may or may not presently constitute "claims"
within the meaning of Section 101(5) of the Bankruptcy Code and demands that
may or may not constitute "demands" within the meaning of Section 524(g)(5) of
the Bankruptcy Code.
13.5 Cooperation. The former Insiders and Affiliates of
Reorganized Celotex shall execute assignments of such insurance policies or
choses in action related thereto as may be necessary to effectuate the purposes
and intent of the Plan.
13.6 The Official Committees And The Legal Representative.
The Official Committees and the Legal Representative shall continue in
existence until the Effective Date, with the Debtors to pay the reasonable fees
and expenses of the Official Committees and the Legal Representative through
that date as well, in accordance with the fee and expense procedures
promulgated during the Reorganization Cases (but only to the extent such fees
and expenses are not Trust Expenses, in which case those portions of such fees
and expenses shall be paid as Trust Expenses in accordance with the Trust
Agreement, with the remainder to be paid by the Debtors). After the Effective
Date, the Legal Representative shall continue in existence and the rights,
duties and responsibilities of the Legal Representative shall be as set forth
in the Trust Agreement. On the Effective Date, the Official Committees shall be
dissolved and the members thereof released and discharged of and from all
further authority, duties, responsibilities, liabilities and obligations
related to, or arising from, the Reorganization Cases.
- 53 -
<PAGE> 61
13.7 Revocation Of Plan. The Plan Proponents reserve the
right to revoke and withdraw the Plan as to either or both Debtors before the
entry of the Confirmation Order. If the Plan Proponents revoke or withdraw the
Plan, or if Confirmation of the Plan as to either or both of the Debtors does
not occur, then, with respect to such Debtor or Debtors, as the case may be,
the Plan shall be deemed null and void and nothing contained herein shall be
deemed to constitute a waiver or release of any Claims by or against such
Debtor or Debtors, as the case may be, or any other Entity (including the Plan
Proponents), or to prejudice in any manner the rights of such Debtor or
Debtors, as the case may be, or such Entity (including the Plan Proponents) in
any further proceedings involving such Debtor.
13.8 Modification Of Plan. The Plan Proponents may propose
amendments to or modifications of the Plan, other than PD Amendments, under
Section 1127 of the Bankruptcy Code at any time prior to the Confirmation Date.
After Confirmation, the Plan Proponents may remedy any defects or omissions or
reconcile any inconsistencies in the Plan, other than PD Amendments, or the
Confirmation Order or any other order entered for the purpose of implementing
the Plan in such manner as may be necessary to carry out the purposes and
intent of the Plan so long as the interests of the holders of Allowed Claims
are not adversely affected. Anything in the Plan or in any Plan Document to the
contrary notwithstanding, following Confirmation no Plan Document shall be
modified, supplemented, changed or amended in any material respect except with
the consent of Celotex as Debtor, and after the Effective Date as Reorganized
Celotex, or, in the absence of such consent, with the approval of the
Bankruptcy Court on notice to Celotex and such other Entities as the Bankruptcy
Court may require. In the event of a conflict between the terms or provisions
of the Plan and the Trust Documents, the terms of the Plan shall control the
Trust Documents.
13.9 Modification Of Payment Terms. The Plan Proponents
reserve the right to modify the treatment of any Allowed Claim, as provided in
Section 1123(a)(4) of the Bankruptcy Code, at any time after the Effective Date
upon the consent of the holder of such Allowed Claim.
13.10 Entire Agreement. The Plan Documents set forth the
entire agreement and undertakings relating to the subject matter thereof and
supersedes all prior discussions and documents. No Entity shall be bound by any
terms, conditions, definitions, warranties, understandings, or representations
with respect to the subject matter hereof, other than as expressly provided for
herein or as may hereafter be agreed to by the parties in writing.
13.11 Headings. Headings are utilized in the Plan for
convenience and reference only and shall not constitute a part of the Plan for
any other purpose.
13.12 Administrative Claims Bar Date. Unless otherwise
ordered by the Bankruptcy Court, the Confirmation Order shall operate to set a
bar date for Administrative Claims (the "Administrative Claims Bar Date"),
which bar date shall be the first Business Day that is at least sixty days
after the Effective Date. Claimants holding Administrative Claims against the
Debtors not paid on the Effective Date may submit a Request for Payment of
Administrative Expense on or before such bar date. The notice of Confirmation
to be delivered pursuant to Bankruptcy Rules 2002 and 3020(c) will set forth
such date and
- 54 -
<PAGE> 62
constitute notice of the Administrative Claims Bar Date. The Plan Proponents
and any other party in interest will have ninety days after the Administrative
Claims Bar Date to review and object to such Claims before a hearing for
determination of such Administrative Claims is held by the Bankruptcy Court,
provided that such ninety day period of review may be extended by the
Bankruptcy Court upon the request of any of the Plan Proponents.
13.13 Governing Law. Except to the extent that federal law
(including, but not limited to, the Bankruptcy Code and the Bankruptcy Rules)
is applicable or where the Plan provides otherwise, the rights and obligations
arising under the Plan shall be governed by, and construed and enforced in
accordance with, the laws of the State of Florida, without giving effect to the
principles of conflicts of law thereof.
13.14 Severability. Should the Bankruptcy Court determine,
prior to the Confirmation Date, that any provision in the Plan is either
illegal on its face or illegal as applied to any Claim or Interest, such
provision shall be unenforceable either as to all holders of Claims or
Interests or as to the holder of such Claim or Interest as to which the
provision is illegal, respectively. Such a determination of unenforceability
shall in no way limit or affect the enforceability and operative effect of any
other provision of the Plan.
13.15 No Interest. Except as expressly stated in the Plan or
otherwise Allowed by Final Order of the Bankruptcy Court, no interest, penalty
or late charge arising after the Petition Date shall be Allowed on any Claim or
Interest.
13.16 Limitation On Allowance. No attorneys' fees, punitive
damages, penalties, exemplary damages, or interest shall be paid with respect
to any Claim or Interest except as specified herein or as Allowed by a Final
Order of the Bankruptcy Court.
13.17 Estimated Claims. To the extent any Claim is estimated
for any purpose other than for voting, then in no event shall such Claim be
Allowed in an amount greater than the estimated amount.
13.18 Consent To Jurisdiction. Upon default under the Plan,
the Debtors, Reorganized Celotex, Reorganized Carey Canada, the Trust and the
Trustees consent to the jurisdiction of the Bankruptcy Court, or any successor
thereto, and agree that it shall be the preferred forum for all proceedings
relating to such default.
13.19 Setoffs. Subject to the limitations provided in Section
553 of the Bankruptcy Code, the Debtors or the Trust, as applicable, may, but
shall not be required to, setoff against any Claim and the payments or other
distributions to be made pursuant to the Plan in respect of such Claim, claims
of any nature whatsoever the Debtors may have against the holder of such Claim,
but neither the failure to do so nor the allowance of any Claim hereunder shall
constitute a waiver or release by the Debtors of any such claim that the
Debtors may have against such holder.
- 55 -
<PAGE> 63
13.20 Successors And Assigns. The rights, duties and
obligations of any Entity named or referred to in the Plan shall be binding
upon, and shall inure to the benefit of, the successors and assigns of such
Entity.
13.21 Non-Debtor Waiver of Rights. Non-debtor parties shall
have the right to voluntarily waive any rights, benefits or protections that
are afforded to them under the provisions of the Plan or any order issued in
furtherance of the Plan, and such waiver shall supersede such rights, benefits
or protections. Any such waiver shall only be effective if such party expressly
and specifically waives in writing one or more of such rights, benefits or
protections.
13.22 Notices. All notices, requests, elections or demands in
connection with the Plan shall be in writing and shall be mailed by registered
or certified mail, return receipt requested, to:
If to the Debtors:
The Celotex Corporation
4010 Boy Scout Blvd.
Tampa, Florida 33607
Attn: George N. Wood, Esq.
With mandatory copies to:
Bush Ross Gardner Warren & Rudy, P.A.
220 South Franklin Street
Tampa, Florida 33602
Attn: Jeffrey W. Warren, Esq.
- and -
Montgomery, McCracken, Walker & Rhoads
The Fidelity Building
123 South Broad Street
Philadelphia, Pennsylvania 19110
Attn: Stephen A. Madva, Esq.
Baldo M. Carnecchia, Jr., Esq.
- 56 -
<PAGE> 64
If to the Legal Representative:
Young, Conaway, Stargatt & Taylor
11th Floor, Rodney Square North
Wilmington, Delaware 19801-0391
Attn: James L. Patton, Jr., Esq.
- and -
Salem, Saxon & Nielsen, P.A.
101 East Kennedy Boulevard
Suite 3200
Tampa, Florida 33602
Attn: Richard A. Nielsen, Esq.
If to the Asbestos Health Claimants Committee:
Honigman Miller Schwartz and Cohn
2290 First National Building
Detroit, Michigan 48226
Attn: Sheldon S. Toll, Esq.
If to the Asbestos Property Damage Claimants Committee:
Kozyak Tropin & Throckmorton, P.A.
2800 First Union Financial Center
200 South Biscayne Boulevard
Miami, Florida 33131-2335
Attn: John W. Kozyak, Esq.
- and -
Stroock & Stroock & Lavan
3300 First Union Financial Center
200 South Biscayne Boulevard
Miami, FL 33131-2385
Attn: Scott L. Baena, Esq.
If to the Trade Creditors Committee:
Johnson, Blakely, Pope, Bokor, Ruppel & Burns, P.A.
911 Chestnut Street
Clearwater, Florida 34616
Attn: Charles M. Tatelbaum, Esq.
- 57 -
<PAGE> 65
If to the Veil Piercing Claimants Representatives:
Greitzer and Locks
1500 Walnut Street
Philadelphia, Pennsylvania 19102
Attn: Gene Locks, Esq.
- and -
Baron & Budd
3102 Oak Lawn Avenue
Suite 1100
Dallas, Texas 75219-4281
Attn: Frederick M. Baron, Esq.
- and -
Ness, Motley, Loadholt, Richardson & Poole
P.O. Box 365
Barnwell, South Carolina 29812
Attn: Joseph Rice, Esq.
If to the Jasper Parties:
Holland & Knight
400 North Ashley Drive
Suite 2300
Tampa, Florida 33602
Attn: Robert J. Grammig, Esq.
- and -
Hoyt, Colgan & Andreu, P.A.
101 East Kennedy Boulevard
Suite 3000
Tampa, Florida 33602
Attn: Michael B. Colgan, Esq.
- 58 -
<PAGE> 66
HONIGMAN MILLER SCHWARTZ AND COHN SALEM, SAXON & NIELSEN, P.A.
Richard A. Nielsen
/s/ 101 East Kennedy Boulevard
- ------------------------------------- Suite 3200
Sheldon S. Toll Tampa, Florida 33602
2290 First National Building (813) 224-9000
Detroit, Michigan 48226
(313) 256-7800
Counsel for the Asbestos Health Claimants Committee
YOUNG, CONAWAY, STARGATT & TAYLOR
/s/
----------------------------------
James L. Patton, Jr.
David W. O'Connor
11th Floor, Rodney Square North
Wilmington, Delaware 19801-0391
(302) 571-6684
Co-Counsel for the Legal
Representative
BUSH ROSS GARDNER WARREN & RUDY, P.A.
JOHNSON, BLAKELY, POPE, BOKOR, RUPPEL
/s/ & BURNS, P.A.
- --------------------------------------
Jeffrey W. Warren
H. Bradley Staggs /s/
220 South Franklin Street ---------------------------------------
Tampa, Florida 33602 Charles M. Tatelbaum
(813) 224-9255 Lisa Dodge
Counsel for the Debtors 911 Chestnut Street
Clearwater, Florida 34616
MONTGOMERY, MCCRACKEN, WALKER & RHOADS (813) 461-1818
Stephen A. Madva Counsel for the Trade Creditors
Baldo M. Carnecchia, Jr. Committee
Natalie D. Ramsey
The Fidelity Building
123 South Broad Street
Philadelphia, Pennsylvania 19110
(215) 772-1500
Special Counsel for the Debtors
Dated: October 21, 1996 (Includes Supplement To Modified Joint Plan of
Reorganization dated October 22, 1996 and Supplemental Technical
Modifications dated November 27, 1996)
- 59 -
<PAGE> 1
===============================================================================
STOCKHOLDER'S AGREEMENT
between
WALTER INDUSTRIES, INC.
AND
THE CELOTEX CORPORATION, IN
ITS CAPACITY AS THE CELOTEX
SETTLEMENT FUND RECIPIENT
----------------------------------
March 17, 1995
----------------------------------
===============================================================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
1. Restrictions on Transfer of Shares Owned by Celotex.......................1
2. Voting of Common Stock Owned by Celotex...................................1
3. After-Acquired Securities.................................................2
4. Stock Certificate Legend..................................................2
5. Representations and Warranties of the Parties.............................2
5.1 Authority............................................................2
5.2 Binding Obligations..................................................3
5.3 No Conflicts/Approvals...............................................3
6. Specific Performance......................................................3
7. Miscellaneous.............................................................3
7.1 Notices..............................................................3
7.2 Severability.........................................................4
7.3 Third-Party Beneficiary..............................................4
7.4 Amendment............................................................4
7.5 Waiver...............................................................4
7.6 Variations in Pronouns...............................................5
7.7 Governing Law........................................................5
7.8 Further Assurance....................................................5
7.9 Successors and Assigns...............................................5
7.10 Counterparts.........................................................5
</TABLE>
-i-
<PAGE> 3
STOCKHOLDER'S AGREEMENT
STOCKHOLDER'S AGREEMENT, dated as of March 17, 1995, by and between
Walter Industries, Inc., a Delaware corporation (the "Company"), and The
Celotex Corporation, solely in its capacity as the Celotex Settlement Fund
Recipient under the Second Amended and Restated Veil Piercing Settlement
Agreement dated as of November 22, 1994 ("Celotex"), as the same may be amended
or modified (the "VPSA").
WHEREAS, each of Celotex, solely as the Celotex Settlement Fund
Recipient, and holders of Allowed Claims in Classes S-1, S-2, S-6, U-4, U-5,
U-6 and holders of Class E-1 Interests will acquire shares of New Common Stock,
par value $.01 per share, of the Company pursuant to the Amended Joint Plan of
Reorganization dated as of December 9, 1994, as the same may be amended or
modified (the "Consensual Plan").
All capitalized terms used herein and not otherwise defined herein
have the meaning ascribed to them in the Consensual Plan.
NOW, THEREFORE, in consideration of the mutual promises and agreements
set forth herein, the adequacy of which are hereby acknowledged, the parties
hereto agree as follows:
1. Restrictions on Transfer of Shares Owned by Celotex. Celotex shall
not, nor shall Celotex permit any of its Affiliates to, offer, sell, transfer,
give, assign, hypothecate, pledge, encumber, grant a security interest in or
otherwise dispose of (whether by operation of law or otherwise) (collectively,
"transfer") any shares of New Common Stock or any right, title or interest
therein or thereto to any Person that is (a) a successor to Celotex as a
Celotex Settlement Fund Recipient, (b) a beneficiary of the Celotex Settlement
Fund Recipient or (c) as creditor of The Celotex Corporation, in its capacity
as such, unless in each case such Person delivers to the Company in instrument,
in form and substance reasonably satisfactory to the Company, pursuant to which
it agrees to be bound by the terms and conditions of this Agreement to the same
extent as Celotex is bound.
2. Voting of Common Stock Owned by Celotex. In any vote or action by
written consent by holders of New Common Stock voting or taking action by
written consent on any matter submitted to a vote of stockholders of the
Company, Celotex will vote or execute written consents with respect to its
shares of New Common Stock for and/or against such matter in proportion to the
votes cast or consents executed and delivered by the other holders of New
Common Stock who voted or executed and delivered written consents, as votes,
and Celotex shall have no responsibility for the
<PAGE> 4
- 2 -
determination thereof. Celotex shall be present, in person or by proxy, at all
meetings of holders of New Common Stock so that all shares of New Common Stock
beneficially owned by Celotex may be counted for the purpose of determining the
presence of a quorum at such meeting.
3. After-Acquired Securities. All of the provisions of this Agreement
shall apply to all of the shares of New Common Stock or other voting securities
of the Company now owned or which may be issued or transferred hereafter to
Celotex as a result of its ownership of New Common Stock, whether such issuance
or transfer is in respect of, in exchange for, in substitution of or in
reclassification of, any shares of New Common Stock, or is in consequence of
any purchase as a result of its exercise of option or other rights granted in
connection with its ownership of New Common Stock, corporate reorganization or
any other form of recapitalization, consolidation, merger, share split or share
dividend or otherwise.
4. Stock Certificate Legend. A copy of this Agreement shall be filed
with the Secretary of the Company and kept with the records of the Company.
Each certificate representing shares of New Common Stock or other voting
securities of the Company referred to in Section 3 above now held or hereafter
acquired by or issued or transferred to Celotex shall, for as long as this
Agreement is effective, bear a legend as follows:
The securities represented by this Certificate are restricted by the
terms of the Stockholder's Agreement, dated as of March 17, 1995
between the Company and The Celotex Corporation, in its capacity as
the Celotex Settlement Fund Recipient, a copy of which may be
inspected at the Company's principal office.
5. Representations and Warranties of the Parties. Celotex represents
and warrants to the Company that:
5.1 Authority. The execution, delivery and performance of
this Agreement by it has been duly authorized by all necessary action.
5.2 Binding Obligation. It has duly and validly executed
and delivered this Agreement, and this Agreement constitutes its
legal, valid and binding obligation, enforceable against it in
accordance with its terms.
5.3 No Conflicts/Approvals. The execution, delivery and
performance of this Agreement will not conflict with or result
<PAGE> 5
- 3 -
in the breach or violation of any of the terms or conditions of, or
constitute (or with notice or lapse of time or both, would constitute)
a default under (i) its constituting or governing documents; (ii) any
instrument, contract or other agreement by or to which it is a party
or its assets are bound or subject; (iii) any statute, regulation,
order, judgment or decree of any court of governmental or regulatory
body; or (iv) any license, permit, order or approval of any
governmental or regulatory body respecting it or its business. No
approval or consent of any foreign, Federal, state, county, local or
other governmental or regulatory body or court or other Person is
required in connection with the execution, delivery or performance of
this Agreement by it.
6. Specific Performance. The parties hereto intend that the Company
has the right to seek specific performance i the event that Celotex fails to
perform its obligations hereunder. Therefore, if the Company shall institute
any action or proceeding to enforce the provisions hereof, Celotex hereby
waives any claim or defense therein that the Company has an adequate remedy at
law.
7. Miscellaneous.
7.1 Notices. All notices or other communication required or
permitted hereunder shall be in writing and shall be delivered
personally, telegraphed or telexed, or sent by facsimile transmission
or sent by certified, registered or express mail or, if mailed, give
days after the date of deposit in the United States mail, as follows:
(i) If to the Company, to it at:
Walter Industries, Inc.
1500 North Dale Mabry Highway
Tampa, Florida 33607
Facsimile: (813) 871-4430
Attention: Kenneth J. Matlock
William H. Weldon
with a copy to:
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, New York 10017
Facsimile: (212) 455-2502
Attention: Peter J. Gordon
<PAGE> 6
- 4 -
(ii) if to Celotex, to it at:
The Celotex Corporation
4010 Bay Scout Boulevard
Tampa, Florida 336076
Facsimile: (813) 873-4294
Attention: John Borreca
with a copy to:
Bush Ross Gardens Warren & Rudy, P.A.
220 South Franklin Street
Tampa, Florida 33602
Facsimile: (803) 223-9620
Attention: Jeffrey Warren, Esq.
Any party may by notice given in accordance with this Section 7.1
designate another address or person for receipt of notices hereunder.
7.2 Severability. In the event any provision hereof is held
void or unenforceable by any court, then such provisions shall be
severable and shall not affect the remaining provisions hereof.
7.3 Third-Party Beneficiary. Each stockholder of the Company
is a third-party beneficiary to this Agreement and is entitled to the
rights and benefits hereunder, and each Person who beneficially owns,
as such term is defined in Rule 13d-3 of the Securities Exchange Act
of 1934, as amended, 5% or more of the outstanding New Common Stock
(each, a "5% Third Party Beneficiary") may enforce the provisions
hereof as it if were a party hereto.
7.4 Amendment. This Agreement may be amended from time to
time by a written amendment duly executed and delivered by the parties
hereto, with the consent of each 5% Third Party Beneficiary.
7.5 Waiver. Any failure by a party hereto to comply with any
obligation, agreement or condition herein may be expressly waived in
writing by each of the other parties hereto and with the consent of
each 5% Third Party Beneficiary, but such waiver or failure to insist
upon strict compliance with such obligation, agreement or condition
shall
<PAGE> 7
- 5 -
not operate as a waiver of, or estoppel with respect to, any such
subsequent or other failure.
7.6 Variations in Pronouns. All pronouns and any variations
thereof refer to the masculine, feminine or neuter, singular or
plural, as the context may require.
7.7 Governing Law. This Agreement shall be governed and
construed in accordance with the laws of the State of Delaware
applicable to agreements made and to be performed entirely within such
State.
7.8 Further Assurances. Each of the parties shall, and shall
cause their respective Affiliates to, execute such instruments and
take such action as may be reasonably required or desirable to carry
out the provisions hereof and the transactions contemplated hereby.
This Agreement shall be binding upon and inure to the benefit of the
parties and their respective successors and legal representatives.
7.9 Successors and Assigns. This Agreement shall insure to
the benefit of the parties hereto and their respective successors and
assigns and shall be binding on successors and assigns of Celotex to
the extent provided in Section 3.22(c) of the Consensual Plan and
Appendix A paragraph P to the VPSA.
7.10 Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned have executed, or have caused to
be executed, this Agreement as of the date first written above.
WALTER INDUSTRIES, INC.
BY: /s/ KENNETH J. MATLOCK
-----------------------------
Name: Kenneth J. Matlock
Title: Executive Vice President
<PAGE> 8
- 6 -
THE CELOTEX CORPORATION
in its capacity as the
Celotex Settlement Fund
Recipient
BY: /s/ KENNETH E. HYATT
------------------------------
Name: Kenneth E. Hyatt
Title: President and
Chief Executive Officer
<PAGE> 1
EXHIBIT 4
POWER OF ATTORNEY
I, JOHN H. LAERI, JR., Executive Director of The Asbestos
Settlement Trust, hereby appoint KEVIN E. IRWIN and GARY P. KREIDER, or either
of them, as my true and lawful attorney-in-fact to sign on my behalf as said
Executive Director and to file with the Securities and Exchange Commission any
schedules or other filings or amendments thereto made by me pursuant to Section
13(d) of the Securities Exchange Act of 1934.
IN WITNESS WHEREOF, I have hereunto set my hand this 9th day of
June, 1997.
/s/John H. Laeri, Jr.
---------------------
JOHN H. LAERI, JR.
