FOR THE DISTRICT OF DELAWARE In re: ) Chapter 11 FAH ...€¦ · in the united states bankruptcy court for the district of delaware in re: fah liquidating corp., et a/., 1 (f/k/a

IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE

In re: ) Chapter 11

) FAH LIQUIDATING CORP., el al.,' ) Case No. 13-13087 (KG)

(f/k/a FISKER AUTOMOTIVE ) HOLDINGS, INC.), )

Debtors. ) )

CERTIFICATION OF COUNSEL REGARDING ORDER APPROVING STIPULATION REGARDING CLAIM OF TRANSMISIONES Y

EQUIPOS MECANICOS, S.A. DE C.V. (TREMEC) (CLAIM NO. 644)

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 FA Liquidating Corp. (f/k/a Fisker Automotive, Inc.) ("FAT") and FAH

Liquidating Corp. (f/k/a Fisker Automotive Holdings, Inc.), ("FAH", and together with FAT, the

"Debtors"), by and through its undersigned counsel, hereby certifies as follows:

1. Prior to the Petition Date, the Debtors and Transmisiones Y Equipos Mecanicos,

S.A. de C.V. ("TREMEC") entered into an agreement (as amended, and with all appendices,

addenda, exhibits and schedules thereto, collectively referred to herein as the "TREMEC

Agreement").

2. On June 6, 2014, TREMEC filed a proof of claim asserting a general unsecured

claim against the Debtors in the amount of $8,797,966.00 in connection with the TREMEC

Agreement ("Claim No. 644").

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.

664300.1 6/2/17

Jointly Administered Re: Docket Nos. 1505, 1866 and 1908

Case 13-13087-KG Doc 2151 Filed 06/02/17 Page 1 of 3

3. On May 22, 2015, the Liquidating Trustee filed Eighth Omnibus Objection to

Claims (Insufficient Documentation) (Non-Substantive) [D.I. 1505] (the "Eighth Claim

Objection"), in which the Liquidating Trustee identified Claim No. 644 as an Insufficient

Documentation Claim and sought to reduce Claim No. 644 to a "Modified Claim

Amount/Classification" in the amount of $546,649.45, which amount is consistent with the

Debtors' books and records.

4. On April 14, 2016, TREMEC filed the Response of Transmisiones Y Equipos

Mecanicos, S.A. de C. V. (TREMEC) to Eighth Omnibus Objection to Claims [D.I. 1866] (the

"Response").

5. On May 19, 2016, the Trustee filed the Reply qf Liquidating Trustee (I) to

Response of Transmisiones Y Equipos Mecanicos, S.A. de C. V. (TREMEC) to Eighth Omnibus

Objection to Claims and (II) in Further Support of the Liquidating Trustee's Eighth Omnibus

Objection with Respect to Claim 644 filed by TREMEC (the "Reply") [D.I. 1908].

6. 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 in connection

with Claim No. 644, the TREMEC Agreement, the Eighth Claim Objection, the Response and

the Reply. The Parties have entered into a stipulation (the "Stipulation") memorializing the

agreement between the Parties.

7. 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.

664300.1 6/2/17

2


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: June 2, 2017 SAU

'Mark Minuti -No. 26 ) Monique B. DiSabatino (DE Bar No. 6027) 1201 North Market Street, Suite 2300

P.O. Box 1266 Wilmington, DE 19899 Telephone: (302) 421-6840 Facsimile: (302) 421-5873

Counsel to the Liquidating Trustee

664300.1 6/2/17 3


EXHIBIT A

PROPOSED ORDER

664300.1 6/2/17

Case 13-13087-KG Doc 2151-1 Filed 06/02/17 Page 1 of 11


In re:

FAH LIQUIDATING CORP., et a/., 1

(f/k/a FISKER AUTOMOTIVE HOLDINGS, INC.),

Debtors.

) Chapter 11

) Case No. 13-13087 (KG)

) Jointly Administered ) Re: Docket Nos. 1505, 1866, 1908

) and

ORDER APPROVING STIPULATION REGARDING CLAIM OF TRANSMISIONES Y EQUIPOS MECANICOS, S.A. DE C.V. (TREMEC) (CLAIM NO. 644)

Upon consideration of the Stipulation Regarding Claim of Transmisiones Y Equipos

Mecanicos, S.A. de C, V. (TREMEC) (Claim No. 644), 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 established in

connection with the above-captioned bankruptcy cases of FA Liquidating Corp. (f/k/a Fisker

Automotive, Inc.) and its affiliated debtor FAH Liquidating Corp. (f/k/a Fisker Automotive

Holdings, Inc.), and (ii) Transmisiones Y Equipos Mecanicos, S.A. de C.V., and after due

deliberation and sufficient cause appearing therefor, it is HEREBY ORDERED THAT:

1. The Stipulation is approved on the terms set forth herein.

2. Claim No. 644 shall be Allowed as a Class 5B — General Unsecured Claim under

the Plan in the amount of Two Million Nine Hundred Thousand Dollars ($2,900,000.00), and

shall be treated in accordance with the Plan. No part of Claim No. 644 shall be entitled to

priority treatment.

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.

2

Capitalized terms used but not defined herein have the meanings given to them in the Stipulation.

664300.1 6/2/17


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 other actions

necessary to effectuate the relief granted herein.

5. This Court shall retains exclusive jurisdiction with respect to all matters arising

from or related to the implementation, interpretation, or enforcement of this Order.

Dated: ,2017

The Honorable Kevin Gross United States Bankruptcy Judge

664300.1 6/2/17

2


EXHIBIT 1

Stipulation

664300.1 6/2/17


In re

FAH LIQUIDATING CORP. (f/k/a FISKER AUTOMOTIVE HOLDINGS, INC.), et al.,'

Debtors.


Chapter 11

Case No. 13-13087 (KG)

(Jointly Administered)

Related to D.I. 1505, 1866, 1908

STIPULATION REGARDING CLAIM OF TRANSMISIONES Y EOUIPOS MECANICOS, S.A. DE C.V. (TREMEC) (CLAIM NO. 644)

THIS STIPULATION (this "Stipulation") is made and entered into this 1st day of June,

2017, by and between (i) Emerald Capital Advisors Corp., in its capacity as liquidating trustee

(the "Trustee") of the FAH Liquidating Trust (the "Liquidating Trust") established in connection

with the above-captioned bankruptcy cases administered under case number 13-13087 (KG) (the

"Chapter 11 Cases") of FAH Liquidating Corp. (f/k/a Fisker Automotive Holdings, Inc., or

"FAH") and FA Liquidating Corp. (f/k/a Fisker Automotive, Inc., or "FAI") (FAH together with

FM, the "Debtors"), administered in the United States Bankruptcy Court for the District of

Delaware (the "Bankruptcy Court" or "Court") and (ii) Transmisiones Y Equipos Mecanicos,

S.A. de C.V. (TREMEC) ("TREMEC" or "Claimant"). 2 The Trustee and Claimant are each

referred to separately herein as a "Party" and are referred to collectively as the "Parties".

WHEREAS, prior to the Petition Date (as defined below), FAT and Claimant entered into

an agreement (as amended, and with all appendices, addenda, exhibits, and schedules thereto,

collectively referred to herein as the "TREMEC Contract");

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 11 cases, the service address for the Debtors is

3080 Airway Avenue, Costa Mesa, California 92626.

2

Capitalized terms used but not defined herein have the meanings given them in the Plan (defined below).


WHEREAS, on November 22, 2013 (the "Petition Date"), the Debtors commenced the

Chapter 11 Cases under title 11 of the United States Code (the "Bankruptcy Code") before the

Bankruptcy Court;

WHEREAS, on December 3, 2013, the Debtors filed their schedules of assets and

liabilities and executory contracts and unexpired leases and statements of financial affairs [DJ.

94-96], as required by section 521 of the Bankruptcy Code, and filed amended schedules on July

25, 2014 [D.I. 1126] (collectively, the "Schedules");

WHEREAS, on May 22, 2014, the Debtors filed the Notice of (A) Rejection of Certain

Unexpired Leases and Executory Contracts, (B) Assumption of Certain Unexpired Leases and

Executory Contracts, (C) and Extension of Retention Period With Respect to Certain Unexpired

Leases and Executory Contracts [Docket No. 923] (the "Rejection Notice"), in which the

Debtors, among other things, rejected certain executory contracts (the "Rejected Contracts")

effective June 1, 2014;

WHEREAS, one of the Rejected Contracts was the TREMEC Contract;

WHEREAS, on June 6, 2014, Claimant filed with the Debtors' designated Claims and

Noticing Agent, Rust Consulting/Omni Bankruptcy ("Rust/Omni"), proof of claim number 644

("Claim No. 644"), asserting a general unsecured claim against the Debtors in the amount of

$8,797,966.00 for amounts purportedly owed to TREMEC in connection with the TREMEC

Contract;

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) [D.I. 1059] (the "Plan") and entered an Order Confirming Debtors'

2


Second Amended Joint Plan of Liquidation Pursuant to Chapter II of the Bankruptcy Code (with

Technical Modifications) [D.I. 1137] (the "Confirmation Order");

WHEREAS, on August 4, 2014, the Debtors filed the Notice of Filing of the Liquidating

Trust Agreement [.I. 1158] and attached thereto as Exhibit A the Liquidating Trust Agreement

(the "Trust Agreement") entered into by and between the Debtors and the Trustee, pursuant to

which the Liquidating Trust was established;

WHEREAS, on August 13, 2014, the Debtors filed the Notice of (I) Entry of

Confirmation Order, (II) Occurrence of Effective Date, and (III) Related Bar Dates [D.I. 1173],

and upon such date the Plan and the Trust Agreement went effective and the Trustee became the

successor-in-interest to the Debtors (solely for the purposes enumerated in the Plan and Trust

Agreement);

WHEREAS, on May. 22, 2015, the Trustee filed the Eighth Omnibus Objection to

Claims (Insufficient Documentation) (Non-Substantive) [Docket No. 1505] (the "Eighth

Omnibus Objection"), in which the Trustee identified Claim No. 644 on Schedule 1 thereof as an

Insufficient Documentation Claim and sought to reduce Claim No. 644 to a "Modified Claim

Amount/Classification" in the amount of $546,649.45, which amount is consistent with the

Debtors' books and records (the "Books and Records");

WHEREAS, on April 14, 2016, TREMEC filed the Response of Transmisiones Y

Equipos Mecanicos, SA. de C.V. (TREMEC) To Eighth Omnibus Objection to Claims [Docket

No. 1866] (the "TREMEC Response"), in which TREMEC requested that (i) the Court overrule

the Eighth Omnibus Objection with respect to Claim No. 644, and (ii) Claim No. 644 be allowed

in the amount of $7,056,062.00;

3


WHEREAS, on May 19, 2016, the Trustee filed the Reply of Liquidating Trustee (I) To

the Response of Transmisiones Y Equipos Mecanicos, S.A. de C. V. (TREMEC) to Eighth

Omnibus Objection to Claims and (II) In Further Support of the Liquidating Trustee's Eighth

Omnibus Objection With Respect to Claim 644 Filed By TREMEC [D.I. 1908] (the "Trustee

Reply");

WHEREAS, after a further exchange of information and continued arm's-length

negotiations between the Parties, the Parties have determined that it is in their respective best

interests to resolve any and all issues between them relating to Claim No. 644 (including without

limitation, and for the avoidance of doubt, the TREMEC Contract, the Eighth Omnibus

Objection, the TREMEC Response, and the Trustee Reply) on the terms set forth herein;

WHEREAS, the Parties have agreed to the treatment of Claim No. 644 as provided for in

this Stipulation;

NOW, THEREFORE, in consideration of the foregoing and of the mutual promises

hereinafter set forth, 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 or on

behalf of the Parties and is approved by order of the Bankruptcy Court that becomes final and

non-appealable (the "Effective Date").

3. On the Effective Date, Claim No. 644 shall be Allowed as a Class 5B - General

Unsecured Claim under the Plan in the amount of Two Million Nine Hundred Thousand

Dollars ($2,900,000.00) (the "Allowed Claim"). No part of Claim No. 644 shall be entitled to

4


priority treatment. Claimant shall 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 Trustee shall 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

described in paragraph 3 supra, Claimant, on behalf of itself and each of its respective successors,

assigns, officers, directors, managers, and employees, shall forever waive, release, and discharge

the Debtors, their bankruptcy estates, the Trustee, and the Liquidating Trust, and their respective

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, whether at law or in equity, now known or unknown, now existing or arising

hereafter, or asserted or unasserted, with respect to, arising out of, or relating to Claim No. 644,

the TREMEC Contract, the Eighth Omnibus Objection, the TREMEC Response, the Trustee

Reply, and these Chapter 11 Cases.

5. On the Effective Date, the Trustee, on behalf of itself and the Liquidating Trust

and each of their respective successors, assigns, officers, directors, managers, and employees, the

Liquidating Trust, as well as in its capacity as successor-in-interest to the Debtors (solely for the

purposes enumerated in the Plan and Trust Agreement), shall forever waive, release, and

discharge 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,

obligations, and demands whatsoever, whether at law or in equity, now known or unknown, now

existing or arising hereafter, or asserted or unasserted, with respect to, arising out of, or relating


to Claim No. 644, the TREMEC Contract, the Eighth Omnibus Objection, the TREMEC

Response, the Trustee Reply, 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 or written understandings, agreements, or arrangements between them with respect to

the subject matter hereof. There is no other consideration for this Stipulation other than the

consideration set forth herein.

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 to this Stipulation are acceptable and will be considered original signatures.

8. The Bankruptcy Court shall retain jurisdiction over any dispute arising out of or

relating to this Stipulation or Claim No. 644.

9. This Stipulation shall be binding on and inure solely to the benefit of the Parties

hereto and their respective successors and assigns.

10. No amendment, waiver, or modification of any provision 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.

12. For the avoidance of doubt, nothing herein is intended to or shall modify or

otherwise affect any rights granted to the Claimant in the Plan.

6


IN WITNESS WHEREOF, the Parties have caused this Stipulation to be executed by

their respective, duly authorized signatories.

BROWN RUDNICK LLP

- C nstopher M. oyd, Esq. akst One Financial Center oor at Ford Field Boston, Massachusetts 02111 1901 St. Antoine Street

Detroit, MI 48226 Counsel to the Trustee

Dated: June f,2017 Counsel to Claimant

Dated: June', 2017

62780428 v3


Documents

FOR THE DISTRICT OF DELAWARE In re: ) Chapter 11 FAH ...€¦ · in the united states bankruptcy court for the district of delaware in re: fah liquidating corp., et a/., 1 (f/k/a