Case 13-13087-KG Doc 1743 Filed 12/15/15 Page 1 of 2 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE In re: ) FAH LIQUIDATING CORP., etal.,' ) ) (f/k/a FISKER AUTOMOTIVE ) HOLDINGS, INC.), ) Debtors. ) Chapter 11 Case No. 13-13087 (KG) Jointly Administered Re: Docket Nos. 1549 CERTIFICATION OF COUNSEL REGARDING ORDER APPROVING STIPULATION REGARDING CLAIM OF POLYTEC CAR STYLING HORSCHING GMBH 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. (the "Debtors"), by and through its undersigned counsel, hereby certifies as follows: 1. On January 23, 2014, Polytec Car Styling Horsching GmbH ("Polytec") filed a proof of claim asserting a general unsecured claim in the amount of $317,172.24 (Claim No. 237). 2. On July 15, 2015, the Liquidating Trustee filed the Liquidating Trustee's Ninth Omnibus Objection to (I) No Liability Claims, (II) Duplicate Claims, (III) Amended and Superseded Claims, (IV) Equity Claims and (V) Overstated Claims (Non-Substantive) [DJ. No. 1549], in which the Liquidating Trustee sought to modify Claim 237 to a reduced "Modified Claim Amount/Classification" on the grounds that the amounts asserted in Claim 237 do not tie to the Debtors' Books and Records. 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 92626. 647821.1 12/15/15
Case 13-13087-KG Doc 1743 Filed 12/15/15 Page 2 of 2 3. After an exchange of information and arm's length negotiations between Polytec and the Liquidating Trustee (collectively with Polytec, the "Parties"), the Parties have determined that it is in the best interests of all Parties to resolve any and all issues in connection with Claim No. 237. The Parties have entered into a stipulation (the "Stipulation") memorializing the agreement between the Parties. 4. 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. 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: December 15, 2015 SAUL EWING LLP Mark Minuti (DE Bar No. 2659) Lucian B. Murley (DE Bar No. 4892) 222 Delaware Avenue, Suite 1200 P.O. Box 1266 Wilmington, DE 19899 Telephone: (302) 421-6840 Facsimile: (302) 421-5873 Counsel to the Liquidating Trustee 647821.1 12/15/15 2
Case 13-13087-KG Doc 1743-1 Filed 12/15/15 Page 1 of 10 Exhibit A Proposed Order
Case 13-13087-KG Doc 1743-1 Filed 12/15/15 Page 2 of 10 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. 13-13087 (KG) Jointly Administered Re: Docket Nos. 1549 and ORDER APPROVING STIPULATION REGARDING CLAIM OF POLYTEC CAR STYLING HORSCHING GMBH Upon consideration of the Stipulation Regarding Claim of Polytec Car Styling Horsching GmbH, attached hereto as Exhibit 1 (the "Stipulation"), 2 by and between Emerald Capital Advisors Corp., in its capacity as Liquidating Trustee of the FAH Liquidating Trust (the "Liquidating Trustee") and Polytec Car Styling Horsching GmbH (the "Claimant"), 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 237 shall be Allowed as a Class 5B - General Unsecured Claim 3 under the Plan in the amount of One Hundred Thousand, Seven Hundred Eighteen Dollars and Forty- Forty Cents ($100,718.44). No part of Claim 237 shall be entitled to priority treatment. 2 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 92626. Capitalized terms used but not defined herein have the meanings given them in the Stipulation. 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) [D.I. 1059] (as amended and supplemented, the "Plan"). 647821.1 12/15/15
Case 13-13087-KG Doc 1743-1 Filed 12/15/15 Page 3 of 10 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 provision of the Stipulation. 5. This Court retains exclusive jurisdiction with respect to all matters arising from or related to the implementation, interpretation, or enforcement of this Order. Dated:,2015 The Honorable Kevin Gross United States Bankruptcy Judge 647821.1 12/15/15 2
Case 13-13087-KG Doc 1743-1 Filed 12/15/15 Page 4 of 10 Exhibit 1 Stipulation
Case 13-13087-KG Doc 1743-1 Filed 12/15/15 Page 5 of 10 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE In re: FAH LIQUIDATING CORP., et al., 4 (f/kja FISKER AUTOMOTIVE HOLDINGS, INC.) Debtors. Chapter 11 Case No. 13-13087 (KG) (Jointly Administered) Re: Docket No. 1549 STIPULATION REGARDING CLAIM OF POLYTEC CAR STYLING HORSCHING GMBH THIS STIPULATION (this "Stipulation") is made and entered into as of this 14th day of December, 2015, by and among (i) FAH Liquidating Trust (the "Liquidating Trust"), established in connection with the bankruptcy cases of FA Liquidating Corp. (f/k/a Fisker Automotive, Inc.) ("FAI") and its affiliated debtor FAH Liquidating Corp. (f/k/a Fisker Automotive Holdings, Inc.) ("FAH," and, together with FAI, the "Debtors"), administered under case number 13-13087 (KG) (the "Chapter 11 Cases") in the United States Bankruptcy Court for the District of Delaware (the "Bankruptcy Court") and (ii) Polytec Car Styling Horsching GmbH ("Claimant"). The Liquidating Trust and Claimant are referred to separately herein as a "Party" and all are referred to collectively as the "Parties." WHEREAS, prior to the Petition Date (as defined below), the Debtors and Claimant entered into a contract or series of contracts (with all appendices, addenda, amendments, exhibits, and schedules thereto, collectively referred to herein as the "Polytec Contract"), pursuant to which Claimant agreed to provide goods and services to the Debtors; 4 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). For the purpose of these chapter II cases, the service address for the Debtors is: 3080 Airway Avenue, Costa Mesa, California 92626.
Case 13-13087-KG Doc 1743-1 Filed 12/15/15 Page 6 of 10 WHEREAS, on November 22, 2013 (the "Petition Date"), 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 3, 2013, FAI filed its schedules of assets and liabilities pursuant to Bankruptcy Code section 521 and Bankruptcy Rule 1007 [Docket No. 95] (the "Schedules"). On Schedule "F," Claimant was identified as being owed a Trade Payable in the amount of $97,654.07, and on Schedule "G" the Polytec Contract was identified as an executory contract of the Debtors; WHEREAS, on January 23, 2014, Claimant filed with the Debtors' designated Claims and Noticing Agent, Rust Consulting/Omni Bankruptcy ("Rust/Omni"), proof of claim number 237 ("Claim 237") asserting a general unsecured claim against FAI in the amount of $317,172.24 in connection with the Polytec Contract; WHEREAS, on July 28, 2014, the 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") 5 ; 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 'Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Plan, the Confirmation Order, and the Ninth Omnibus Objection, as applicable. 2
Case 13-13087-KG Doc 1743-1 Filed 12/15/15 Page 7 of 10 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. 11731 on August 13, 2014, and upon such date the Plan and the Liquidating Trust went effective and the Liquidating Trust became the successor in interest to the Debtors for purposes specified in the Trust Agreement; WHEREAS, on July 15, 2015, the Liquidating Trustee filed the Liquidating Trustee's Ninth Omnibus Objection to (I) No Liability Claims, (II) Duplicate Claims, (III) Amended and Superseded Claims, (IV) Equity Claims and (V) Overstated Claims (Non-Substantive) [Docket No. 1549] (the "Ninth Omnibus Objection"), in which the Liquidating Trustee sought to modify Claim 237 to a reduced "Modified Claim Amount/Classification" on the grounds that the amounts asserted in Claim 237 do not tie to the Debtors' Books and Records; WHEREAS, after an exchange of information and arm's-length negotiations among the Parties, the Parties have determined that it is in the best interests of all Parties to resolve any and all issues in connection with Claim 237, the Allowed Claim, the Polytec Contract, and these Chapter 11 Cases upon the terms set forth herein; WHEREAS, the Parties have agreed to the treatment of Claim 237 as provided for in this Stipulation in order to permit the claims register to reflect Claim 237 as an Allowed Class 5B - General Unsecured Claim under the Plan; NOW, THEREFORE, in consideration of the foregoing and of the mutual promises hereinafter set forth and for other good cause and valuable consideration, the sufficiency of which is hereby acknowledged, the Parties agree as follows: 3
Case 13-13087-KG Doc 1743-1 Filed 12/15/15 Page 8 of 10 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"). 3. On the Effective Date, Claim 237 shall be an Allowed Class 5B - General Unsecured Claim under the Plan in the amount of one hundred thousand, seven hundred and eighteen dollars and 44/100 cents ($100,718.44) (the "Allowed Claim"). No part of Claim 237 shall be entitled to priority treatment. Claimant will receive proportionately the same in payments or distributions (including with respect to the timing and type of payments or distributions) in respect of the Allowed Claim as is received under the Plan by other holders of Allowed Class 5B - General Unsecured Claims. The Liquidating Trust shall promptly cause Rust/Omni to update the claims register to reflect same. 4. On the Effective Date, Claimant hereby forever waives, releases and discharges the Debtors, the Liquidating Trust, their bankruptcy estates and their successors, assigns, officers, directors, managers, employees and attorneys of and from all manner of claims, causes of action, suits, debts, accounts, agreements, obligations and demands whatsoever in law or in equity, now known or unknown, or hereafter becoming known, asserted or unasserted with respect to, arising out of, or relating to the Polytec Contract, Claim 237, the Allowed Claim and these Chapter 11 Cases. 5. On the Effective Date, the Liquidating Trust hereby forever waives, releases and discharges Claimant and its successors, assigns, officers, directors, managers, employees and attorneys of and from all manner of claims, causes of action, suits, debts, accounts, agreements, 4
Case 13-13087-KG Doc 1743-1 Filed 12/15/15 Page 9 of 10 obligations and demands whatsoever in law or in equity, now known or unknown, or hereafter becoming known, asserted or unasserted with respect to, arising out of, or relating to the Polytec Contract, Claim 237, the Allowed Claim and these Chapter 11 Cases. 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 all prior oral and written understandings, agreements and arrangements between them with respect to the subject matter addressed herein. There is no other consideration for this Stipulation other than the consideration set forth in this Stipulation. 7. This Stipulation may be executed in any number of counterparts, and all such counterparts, taken together, constitute one and the same instrument. Facsimile or electronic copies of signatures of this Stipulation are acceptable and will be considered original signatures. 8. The Bankruptcy Court will retain exclusive jurisdiction over any dispute arising out of or relating to this Stipulation or Claim 237. 9. This Stipulation shall be binding upon and inure solely to the benefit of the Parties hereto and their respective successors and assigns. 10. 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. 11. Each individual signing this Stipulation on behalf of any Party hereto acknowledges and, with respect to his or her own signature below, warrants and represents that he or she is authorized to execute this Stipulation in his or her representative capacity with binding effect, as reflected below and on behalf of the Party indicated. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 5
Case 13-13087-KG Doc 1743-1 Filed 12/15/15 Page 10 of 10 IN WITNESS WHEREOF, as of the Effective Date, the Parties have executed this Stipulation by and through their respective duly authorized signatories. FAH Li uidatin T By: Name: Christopher M. oyd, Brown Rudnick LLP Title: Counsel for Emerald Capital Advisors Corp., as Liquidating Trustee for the FAH Liquidating Trust, the successor-in-interest to FA Liquidating Corp. (f/k/a Fisker Automotive, Inc.) Polvtec Car Styling Horschina GmbH By: Name: Title: in A. SchwaW, Schwarz & Co., P.C. Authorized Representative of Polytec Car Styling Horsching GmbH 6