IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE

Transcription

1 Case KG Doc 2219 Filed 04/09/18 Page 1 of 3 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE In re: ) Chapter 11 ) FAH LIQUIDATING CORP., et al.,' ) Case No (KG) (f/k/a FISKER AUTOMOTIVE HOLDINGS, INC.), ) ) Jointly Administered Debtors. ) Docket Nos. 706, 1753 and 1793 ) CERTIFICATION OF COUNSEL REGARDING ORDER APPROVING STIPULATION REGARDING AMENDED CLAIM OF QUEBEC INC. The undersigned counsel to Emerald Capital Advisors Corp., the Liquidating Trustee (the "Liquidating Trustee") for the FAH Liquidating Trust (the "Liquidating Trust"), appointed in the above-captioned proceedings of FAH Liquidating Corp. (f/k/a Fisker Automotive Holdings, Inc.), et al., hereby certifies that: 1. On February 10, 2014, Quebec Inc. ("Claimants" and, together with the Trustee, the "Parties") filed proof of claim numbered 602 ("Claim 602"), asserting a general unsecured claim. 2. On March 14, 2014, the Debtors filed the Debtors' First Omnibus Objection to Certain Proofs of Claim (Amended and Superseded Claims, Duplicate Claims, Late Filed Claims, and Equity Claims) (Non-Substantive) [Docket No. 706] (the "First Omnibus Objection"), which identified Claim 602 as a Late Filed Claim and sought to disallow and expunge Claim 602 on the grounds that Claim 602 was filed after the General Bar Date. 3. The Claimant filed an informal response to the First Omnibus Objection and the Debtors subsequently agreed to withdraw the First Omnibus Objection as to Claim 602. The Debtors, together with the last four digits of each Debtor's federal tax identification number, are FAH Liquidating Corp. (f/k/a Fisker Automotive Holdings, Inc.) (9678) and FA Liquidating Corp. (f/k/a Fisker Automotive, Inc.) (9075). The service address for the Debtors is 3080 Airway Avenue, Costa Mesa, California

2 Case KG Doc 2219 Filed 04/09/18 Page 2 of 3 4. On June 27, 2014, the Bankruptcy Court entered an Order Approving Stipulation By and Among the Debtors and Quebec Inc. Resolving the Debtors' Outstanding Objection to and Reassigning Claim Number 602 [Docket No. 1030]. 5. On December 21, 2015, the Liquidating Trustee filed The Liquidating Trustee 's Eleventh Omnibus Objection to (I) No Liability Claims and (II) Overstated Claims (Non- Substantive) [Docket No. 1753] (the "Eleventh Omnibus Objection"), in which the Liquidating Trustee identified Claim 602 as a No Liability Claim and requested that Claim 602 be disallowed and expunged. 6. On January 22, 2016, the Bankruptcy Court entered an Order Granting, In Part, The Liquidating Trustee's Eleventh Omnibus Objection to (I) No Liability Claims and (II) Overstated Claims (Non-Substantive) [Docket No. 1793] (the "Order"), in which the Bankruptcy Court disallowed and expunged Claim 602 as a No Liability Claim. 7. Subsequent to the entry of the Order, the Claimant filed proof of claim numbered 682 ("Claim 682"), purporting to amend Claim 602 and asserting a general unsecured claim against the Debtors in the amount of $70, After an exchange of information and arm's length negotiations, the Parties have determined that it is in the best interests of all Parties to resolve any and all issues between them relating to Claim Nos. 602 and 682, the Eleventh Omnibus Objection and the Order. The Parties have entered into a stipulation (the "Stipulation") memorializing the agreement between the Parties. 9. A proposed form of order approving the Stipulation is attached hereto as Exhibit A (the "Proposed Order") and the Stipulation is attached as Exhibit 1 to the proposed order. 2

3 Case KG Doc 2219 Filed 04/09/18 Page 3 of 3 WHEREFORE, the Liquidating Trustee respectfully requests that the Court enter the Proposed Order, substantially in the form attached hereto as Exhibit A, approving the Stipulation and such other and further relief as is just and proper. Dated: April 9, 2018 SAUL EWING ARNSTEIN & LEHR LLP Mark Minuti (DE Bar No. 2659) 1201 North Market Street, Suite 2300 P.O. Box 1266 Wilmington, Delaware Telephone: (302) Facsimile: (302) Counsel to the Liquidating Trustee 3

4 Case KG Doc Filed 04/09/18 Page 1 of 11 Exhibit A Proposed Order

5 Case KG Doc Filed 04/09/18 Page 2 of 11 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE In re: FAH LIQUIDATING CORP., et al.,' (f/k/a FISKER AUTOMOTIVE HOLDINGS, INC.), Debtors. ) Chapter 11 ) Case No (KG) ) Jointly Administered ) Docket Nos. 706, 1753, 1793 and ORDER APPROVING STIPULATION REGARDING AMENDED CLAIM OF QUEBEC INC. Upon consideration of the Stipulation Regarding Amended Claim of Quebec Inc., a copy of which is attached hereto as Exhibit 1 (the "Stipulation",) 2 as agreed to by and between (i) Emerald Capital Advisors Corp., as liquidating trustee (the "Liquidating Trustee") for the FAH Liquidating Trust (the "Liquidating Trust") and (ii) Quebec Inc. (the "Claimant," and together with the Liquidating Trustee, the "Parties"), and after due deliberation and sufficient cause appearing therefor, it is HEREBY ORDERED THAT: 1. The Stipulation is approved, and all terms and provisions of the Stipulation are incorporated fully herein; 2. Claim 682 shall be Allowed as a Class 5B - General Unsecured Claim under the Plan in the amount of Seventy Thousand Dollars and 00/100 Cents ($70,000.00) (the "Allowed The Debtors, together with the last four digits of each Debtor's federal tax identification number, are FAH Liquidating Corp. (f/k/a Fisker Automotive Holdings, Inc.) (9678) and FA Liquidating Corp. (f/lc/a Fisker Automotive, Inc.) (9075). The service address for the Debtors is 3080 Airway Avenue, Costa Mesa, California Capitalized terms used but not defined herein shall have the definitions contained in the Stipulation.

6 Case KG Doc Filed 04/09/18 Page 3 of 11 Claim"), 3 and shall be treated in accordance with the Plan. No part of Claim 682 shall be entitled to priority treatment; 3. Rust/Omni is authorized to update the claims register to reflect the relief granted in this Order; 4. The Liquidating Trustee and Rust/Omni are authorized to take all actions necessary to effectuate the relief granted in this Order in accordance with the terms and provisions of the Stipulation; 5. Nothing herein shall modify the Bankruptcy Court's prior disallowance of Claim 602, pursuant to the Order; and 6. This Court retains jurisdiction with respect to all matters arising from or related to the implementation, interpretation, and enforcement of this Order. Dated: April, 2018 The Honorable Kevin Gross United States Bankruptcy Judge 3 As such Claims are treated under the Debtors' Second Amended Joint Plan of Liquidation Pursuant to Chapter 11 of the Bankruptcy Code (With Technical Modifications) [Docket No. 1059] (as amended and supplemented, the "Plan"). 2

7 Case KG Doc Filed 04/09/18 Page 4 of 11 Exhibit 1 Stipulation

8 Case KG Doc Filed 04/09/18 Page 5 of 11 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE In re: Chapter 11 FAH LIQUIDATING CORP., et al.,' ) Case No (KG) (f/k/a FISKER AUTOMOTIVE HOLDINGS, INC.), ) ) Jointly Administered Debtors. ) Docket Nos. 706, 1753 and 1793 STIPULATION REGARDING AMENDED CLAIM OF QUEBEC INC. THIS STIPULATION (this "Stipulation") is made and entered into as of this day of April, 2018, by and among (i) Emerald Capital Advisors Corp., as liquidating trustee (the "Liquidating Trustee") for the FAH Liquidating Trust (the "Liquidating Trust"), established in connection with the bankruptcy cases of FA Liquidating Corp. (f/k/a Fisker Automotive, Inc.) ("MI") and its affiliated debtor FAH Liquidating Corp. (f/k/a Fisker Automotive Holdings, Inc.) (together with FAI, the "Debtors"), administered under case number (KG) (the "Chapter 11 Cases") in the United States Bankruptcy Court for the District of Delaware (the "Bankruptcy Court") and (ii) Quebec Inc. ("Claimant"). The Liquidating Trustee and Claimant are referred to separately herein as a "Party" and all are referred to collectively as the "Parties". WHEREAS, on November 22, 2013, the Debtors commenced these Chapter 11 Cases under title 11 of the United States Code (the "Bankruptcy Code") before the Bankruptcy Court; WHEREAS, on December 30, 2013, the Bankruptcy Court entered an Order (I) Setting a Bar Date for Filing Proofs of Claim, Including Claims Arising Under Section 503(b)(9) of the The Debtors, together with the last four digits of each Debtor's federal tax identification number, are FAH Liquidating Corp. (f/k/a Fisker Automotive Holdings, Inc.) (9678) and FA Liquidating Corp. (f/k/a Fisker Automotive, Inc.) (9075). The service address for the Debtors is 3080 Airway Avenue, Costa Mesa, California

9 Case KG Doc Filed 04/09/18 Page 6 of 11 Bankruptcy Code, (B) Setting a Bar Date for the Filing of Proofs of Claim by Governmental Units, (C) Setting a Bar Date for the Filing of Requests for Allowance of Administrative Expense Claims, (D) Setting an Amended Schedules Bar Date, (E) Setting a Rejection Damages Bar Date, (F) Approving the Form of and Manner for Filing Proofs of Claim, (G) Approving Notice of the Bar Dates, and (H) Granting Related Relief [Docket No. 252], which established January 27, 2014 as the Claims Bar Date for the filing of general unsecured claims against the Debtors (the "General Bar Date"); WHEREAS, on February 10, 2014, Claimant filed with the Debtors' designated Claims and Noticing Agent, Rust Consulting/Omni Bankruptcy ("Rust/Omni"), proof of claim number 602 ("Claim 602") asserting a general unsecured claim against the Debtors in the amount of $138,999.03; WHEREAS, on March 14, 2014, the Debtors filed the Debtors' First Omnibus Objection to Certain Proofs of Claim (Amended and Superseded Claims, Duplicate Claims, Late Filed Claims, and Equity Claims) (Non-Substantive) [Docket No. 706] (the "First Omnibus Objection"), which identified Claim 602 as a Late Filed Claim and sought to disallow and expunge Claim 602 on the grounds that Claim 602 was filed after the General Bar Date; WHEREAS, after Claimant filed an informal response to the First Omnibus Objection, on June 26, 2014, the Debtors filed a Certification of Counsel Regarding Order Approving Stipulation By and Among the Debtors and Quebec Inc, Resolving the Debtors' Outstanding Objection to and Reassigning Claim Number 602 [Docket No. 1026] (the "Certification of Counsel"), in which the Debtors agreed in the form of a stipulation with Claimant (the "Stipulation") wherein the Debtors agreed to withdraw the First Omnibus Objection solely with respect to Claim 602; 2

10 Case KG Doc Filed 04/09/18 Page 7 of 11 WHEREAS, on June 27, 2014, the Bankruptcy Court entered an Order Approving Stipulation By and Among the Debtors and Quebec Inc. Resolving the Debtors' Outstanding Objection to and Reassigning Claim Number 602 [Docket No. 1030], in which the Bankruptcy Court approved the Stipulation; WHEREAS, on July 28, 2014, the Bankruptcy Court confirmed the Debtors' Second Amended Joint Plan of Liquidation Pursuant to Chapter 11 of the Bankruptcy Code (With Technical Modifications) [Docket No. 1059] (as amended and supplemented, the "Plan"), and entered its Order Confirming Debtors' Second Amended Joint Plan of Liquidation Pursuant to Chapter 11 of the Bankruptcy Code (With Technical Modifications) [Docket No. 1137] (the "Confirmation Order") 2 ; WHEREAS, on August 4, 2014, the Debtors filed the Notice of Filing of the Liquidating Trust Agreement [Docket No. 1158], and attached thereto as Exhibit A the executed version of the Liquidating Trust Agreement (the "Trust Agreement"), by and between the Debtors and Emerald Capital Advisors Corp. (the "Liquidating Trustee"), under which the Liquidating Trust was established; WHEREAS, the Debtors filed the Notice of (I) Entry of Confirmation Order, (II) Occurrence of Effective Date, and (III) Related Bar Dates [Docket No. 1173] on August 13, 2014, and upon such date the Plan and the Liquidating Trust went effective and the Liquidating Trustee became the successor-in-interest to the Debtors for purposes specified in the Trust Agreement; WHEREAS, on December 21, 2015, the Liquidating Trustee filed The Liquidating Trustee's Eleventh Omnibus Objection to (I) No Liability Claims and (II) Overstated Claims 2 Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Plan, the Confirmation Order, and the Eleventh Omnibus Objection, as applicable. 3

11 Case KG Doc Filed 04/09/18 Page 8 of 11 (Non-Substantive) [Docket No. 1753] (the "Eleventh Omnibus Objection"), in which the Liquidating Trustee identified Claim 602 as a No Liability Claim and requested that Claim 602 be disallowed and expunged; WHEREAS, on January 22, 2016, the Bankruptcy Court entered an Order Granting, In Part, The Liquidating Trustee's Eleventh Omnibus Objection to (I) No Liability Claims and (II) Overstated Claims (Non-Substantive) [Docket No. 1793] (the "Order"), in which the Bankruptcy Court disallowed and expunged Claim 602 as a No Liability Claim; WHEREAS, subsequent to the entry of the Order, the Claimant filed proof of claim number 682 ("Claim 682"), purporting to amend Claim 602 and asserting a general unsecured claim against the Debtors in the amount of $70,000.00; WHEREAS, after an exchange of information and arm's-length negotiations among the Parties, the Parties determined that it is in the best interests of all Parties to resolve any and all issues in connection with Claims 602 and 682, the Eleventh Omnibus Objection, the Order, and these Chapter 11 Cases upon the terms set forth herein; NOW, THEREFORE, in consideration of the foregoing, and for other good cause and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: 1. The recitals set forth above form an integral part of this Stipulation and are incorporated fully herein. 2. This Stipulation shall not become effective unless and until it is executed by the Parties or their respective counsels and this Stipulation is approved by the Bankruptcy Court (the "Effective Date"). 4

12 Case KG Doc Filed 04/09/18 Page 9 of On the Effective Date, Claim 682 shall be an Allowed Class 5B - General Unsecured Claim under the Plan in the amount of seventy thousand dollars and 00/100 cents ($70,000.00) (the "Allowed Claim"). No part of Claim 682 shall be entitled to priority treatment. The Allowed Claim shall receive the same treatment (including with respect to the timing and type of payments or distributions) as is received under the Plan by other holders of Allowed Class 5B - General Unsecured Claims. The Liquidating Trustee shall promptly cause Rust/Omni to update the claims register to reflect same. 4. On the Effective Date, and other than with respect to the Allowed Claim as described above, Claimant hereby forever waives, releases and discharges the Debtors, the Debtors' bankruptcy estates, the Liquidating Trustee, the Liquidating Trust, and their bankruptcy estates and their successors, assigns, officers, directors, managers, employees and attorneys of and from any and all manner of claims, causes of action, suits, debts, accounts, agreements, obligations and demands whatsoever in law or in equity, now known or unknown, existing or hereafter arising, or asserted or unasserted, with respect to, arising out of, or otherwise relating to any of Claim 602, Claim 682, the Eleventh Omnibus Objection, the Order, or these Chapter 11 Cases, 5. Nothing in this Stipulation is intended to or shall modify the Bankruptcy Court's prior disallowance of Claim 602, pursuant to the Order; 6. This Stipulation constitutes the full, complete, and entire understanding, agreement, and arrangement of and between the Parties with respect to the subject matter hereof and supersedes any and all prior oral and written understandings, agreements, and arrangements of and between them with respect thereto ,1 4/9/18 5

13 Case KG Doc Filed 04/09/18 Page 10 of This Stipulation may be executed in any number of counterparts (including electronically), and all such counterparts, taken together, constitute one and the same instrument. 8. The Bankruptcy Court will retain jurisdiction over any and all disputes with respect to, arising out of, or otherwise relating to any of Claim 602, Claim 682, the Eleventh Omnibus Objection, the Order, or these Chapter 11 Cases. 9. No amendment, waiver, or modification of any provisions of this Stipulation shall be effective unless the same shall be in writing and signed by the Parties and approved by the Bankruptcy Court. 10. Each individual signing this Stipulation on behalf of a Party acknowledges and, with respect to his own signature below, warrants and represents to the other Party that he is authorized to execute this Stipulation and to bind such Party to the same, and that no further authorization is required with respect thereto. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 6

14 Case KG Doc Filed 04/09/18 Page 11 of 11 WIINESs NA I VI(LOF, the Partk..!i havc (.01,vedI h tipu1a1iot, ;,, hf! abw, Fut d Ad% kors 'or ok. uidni or 14 FAH Liquidating Trust Name: Title Tristan a Axelrod, Brown Rudnick LL Counsel to Liquidating Trustee 1) Queltec Inc, By: Name: Title: Kevin Malakouti Authorized.signatory for Quebec Inc. '624587Y,