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STIPULATION AND ORDER BETWEEN THE DEBTORS
AND
THE ITALIAN BANKING ASSOCIATION
IN THE NAME AND ON BEHALF OF THE ITALIAN BANKS
PROVIDING FOR LIMITED MODIFICATION TO THE BAR DATE ORDER
Motors Liquidation Company (f/k/a General Motors Corporation) (“MLC”) and
certain of its subsidiaries, as debtors and debtors in possession in the above-captioned chapter 11
cases (collectively, the “Debtors” or “MLC”), and the Italian Banking Association (“ABI ” and
together with the Debtors, the “Parties”), acting in the name and on behalf of the Italian banks
associated with ABI and their affiliates (each such Italian bank and its affiliates, an “Italian
Bank”), by and through their respective undersigned counsel, hereby enter into this Stipulation
and Agreed Order (this “Stipulation”) and stipulate as follows:
RECITALS
A. On June 1, 2009 (the “Commencement Date”), the Debtors commenced with this
Court voluntary cases (the “Chapter 11 Cases”) under chapter 11 of title 11 of the United States
Code (the “Bankruptcy Code”). The Debtors are authorized to continue to operate their
businesses and manage their properties as debtors in possession pursuant to sections 1107(a) and
1108 of the Bankruptcy Code. No trustee or examiner has been appointed. On or about June 3,
2009, an Official Committee of Unsecured Creditors (the “Committee”) was appointed in the
chapter 11 cases. The Chapter 11 Cases are being jointly administered pursuant to Rule 1015(b)
of the Bankruptcy Rules.
B. On September 16, 2009, the Court entered an order (the “Bar Date Order”)
establishing November 30, 2009 at 5:00 p.m. (Eastern Time) (the “General Bar Date”) as the
deadline for each person or entity (including without limitation, each individual, partnership,
joint venture, corporation, estate, or trust) to file a proof of claim (a “Proof of Claim”) against
any Debtor to assert any claim (as defined in section 101(5) of the Bankruptcy Code) (a
“Claim”) that arose prior to the Commencement Date.
C. In the Debtors’ notice of the Bar Dates1 (the “Bar Date Notice”), the Debtors
provide that certain persons or entities are not required to file a Proof of Claim on or before the
applicable Bar Date, including persons or entities holding claims (a “Debt Claim”) limited
exclusively to the repayment of principal, interest and other fees and expenses on or under any
agreements governing any debt security issued by any of the Debtors pursuant to an indenture
(together, the “Debt Instruments”), if the indenture trustee or similar fiduciary under the
applicable indenture or fiscal and paying agency agreement files a Proof of Claim against the
applicable Debtor on or before the Bar Date, on account of all Debt Claims against such Debtor
under the applicable Debt Instruments; provided, however, that any holder of a Debt Claim
wishing to assert a claim arising out of or relating to a Debt Instrument, other than a Debt Claim,
is required to file a Proof of Claim with respect to such claim on or before the Bar Date.
D. The Bar Date Notice expressly referenced certain agreements as Debt
Instruments, including inter alia (i) the Fiscal and Paying Agency Agreement, dated as of July 3,
2003 (the “July 3 Agreement”), between MLC, Deutsche Bank AG London (“DB AG”), as
fiscal agent and paying agent, and Banque Générale du Luxembourg S.A. (“Banque Générale”),
as paying agent;2 and (ii) the Fiscal and Paying Agency Agreement, dated as of July 10, 2003
(the “July 10 Agreement” and together with the July 3 Agreement, the “Agreements”), between
General Motors Nova Scotia Finance Company, MLC, as guarantor, Deutsche Bank
Luxembourg S.A. (“DB Luxembourg”), as fiscal agent and paying agent, and Banque Générale,
as paying agent.3
E.
On October 13, 2009, DB AG notified all holders of the 2013 Notes and the 2033
Notes that it would not be filing Proofs of Claim on behalf of any such holders. While DB
Luxembourg and Banque Generale have not given a similar notice, neither has indicated that it
will file a Proof of Claim on behalf of holders of Debt Instruments.
F. Counsel to ABI has advised the Debtors that over 10,000 of the retail customers
of the Italian Banks (the “Customers”) hold Debt Claims related to the Agreements (the
“Customer Debt Claims”). While each of the above-described Debt Instruments related to the
Agreements are ultimately held of record by and are registered in the name of a central securities
depository (such as Euroclear or Clearstream) or its nominee, the Customers, through the
relevant Italian depositary bank, and possibly other intermediaries, ultimately hold the beneficial
and economic interests therein.
G.
Many of the Customers are individuals who reside outside the United States, do
not speak English and lack familiarity with U.S. bankruptcy laws and the claims filing process in
a U.S. bankruptcy case. Allowing each Italian Bank to file a global proof of claim in respect of
its Customer Debt Claims would facilitate the orderly, economic and efficient processing of
claims and reduce any unnecessary expenses to the Debtors’ estates that would be incurred by
requiring each Customer to file a separate proof of claim, and the Debtors to review and
reconcile numerous claims.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth in this Stipulation, it is agreed between the Parties as follows:
AGREEMENT
1.
Notwithstanding anything to the contrary in the Bar Date Order, the Italian Banks are
each permitted to file a global Proof of Claim (a “Global Proof of Claim”) on behalf of such
Italian Bank's Customers (each, a “Participating Customer”) solely with respect to such
Customer’s Debt Claims. A Global Proof of Claim in respect of Customer Debt Claims of
Participating Customers will set forth therein: (i) the ISIN or CUSIP number of the issue, series
or class of the Debt Instruments in respect to which such Global Proof of Claim is filed (the
“Covered Debt Instruments), (ii) the aggregate principal amount of the Customer Debt Claims
in respect of each such issue, class or series of such Covered Debt Instruments as to which such
Global Proof of Claim is filed, setting forth separately the aggregate claim for principal and the
aggregate claim for interest accrued until May 31, 2009 included of all such Customer Debt
Claims for each such issue, class or series of Covered Debt Instruments, and (iii) a Euroclear
electronic instruction reference number, a Clearstream blocking reference number, or other
depository blocking reference number, as appropriate, for each Participating Customer’s
Customer Debt Claim covered by such Global Proof of Claim, where the relevant common
depository provides for such blocking reference number. No documentation supporting the
Customer Debt Claims covered by a Global Proof of Claim is required to be attached to or
submitted with such Global Proof of Claim, including any relevant power of attorney or
authorization to be granted by the Customers to the relevant Italian Bank; provided, however,
that the Debtors and other parties in interest reserve the right to seek production of all
documentation in connection with the claims reconciliation process and any objections that may
be filed. For the avoidance of doubt, except as provided above, an Italian Bank shall not be
required to provide identifying information for any holders of any Customer Debt Claims for
which it files a Global Proof of Claim.
The filing of a Global Proof of Claim by an Italian Bank
shall be deemed a consent by such Italian Bank to, and authorization by such Italian Bank of,
Clearstream, Euroclear or any other depositary to disclose to the Debtors (for the purpose of
reconciling claims and distributions in respect of Customer Debt Claims relating to Covered
Debt Instruments) the holdings of Covered Debt Instruments by such Italian Bank.
2. The form of the Global Proof of Claim will be substantially similar to the Proof of
Claim Form or the Official Bankruptcy Form No. 10 (“Official Form 10”). Other than as
specifically provided herein, all provisions of the Bar Date Order apply to holders of Claims
under any Debt Instrument, and except as expressly provided herein, holders of Claims based on
Debt Instruments are required to comply with all provisions of the Bar Date Order.
3. All Customer Debt Claims in respect of the Covered Debt Instruments will be
stated both in the stated currency thereof and in United States dollars, using the exchange rate in
effect on the Commencement Date, June 1, 2009 (1.4186 Euros/Dollar; 1.645 GBP/Dollar).
4. Customer Debt Claims based on any Covered Debt Instrument in respect of which
a timely Global Proof of Claim has been filed, shall not be disallowed on the ground that such
Customer Debt Claims were not filed by the proper party or an authorized agent, as contemplated
by Bankruptcy Rule 3001(b).
5.
The filing by an Italian Bank of a Global Proof of Claim, shall be deemed to be
the filing of such Proof of Claim by each Participating Customer covered by such Global Proof
of Claim with respect to such Participating Customer’s Customer Debt Claim.
6. An Italian Bank, by filing the Global Proof of Claim in respect of the Covered
Debt Instruments, consents to and hereby is deemed to be the claimant for the purpose of
receiving notices and distributions, if any, except as otherwise provided in a confirmation order
related to a plan of organization filed in the Chapter 11 Cases, and may (but shall not be
required to) respond to any objections interposed as to any Claims asserted in the Global Proof of
Claim. Notice to the Italian Bank filing a Global Proof of Claim shall be, and shall be deemed to
be, sufficient notice to all Participating Customers covered by such Global Proof of Claim.
7. Amounts received by an Italian Bank in respect to any Customer Debt Claim
covered by a Global Proof of Claim shall be remitted by it to the relevant Customer in
accordance with the agreement between such Italian Bank and such Customer.
8. Nothing in this Stipulation shall impose a duty or obligation on any Italian Bank
to file a Global Proof of Claim or to include therein a Customer Debt Claim of any Customer or,
except as expressly provided herein, to take any other action on behalf of any Customer or in
respect of any Debt Claim.
9. The Debtors’ agreement herein to permit the filing by the Italian Banks of Global
Proofs of Claim is intended solely for the purpose of administrative convenience and neither this
Stipulation and Order nor the filing of any Global Proof of Claim shall (I) affect the substantive
rights of any Italian Bank or any Customer, including without limitation any right of any Italian
Bank and each Customer (a) to vote independently on any plan of reorganization proposed in the
Debtors’ chapter 11 cases or (b) to file a proof of claim other than one based on the Debt Claim;
or (II) in any way prejudice the right of any Debtor or any other party in interest to object to the
allowance of any Global Proof of Claim.
10. This Court shall retain jurisdiction to resolve any disputes or controversies arising
from or relating to this Stipulation and Order and to the filing of the Global Proofs of Claim
pursuant to this Stipulation.
11.
This Stipulation is subject to the approval of this Court and shall become effective
upon the entry of an order by the Court approving this Stipulation. If this Stipulation is not
approved by the Court, then this Stipulation shall be deemed null and void, and shall not be
referred to or used for any purpose by any party in either the Chapter 11 Cases or in any other
forum.
12. This Stipulation sets forth the entire understanding of the Parties hereto with
respect to the matters addressed herein and is intended to be the complete and exclusive
statement of the terms thereof and may not be modified or amended except by a writing signed
by the Parties and/or their counsel, which shall be so-ordered by the Court. Accordingly, the
Parties have independently verified all facts and/or conditions of facts that they have determined
are necessary to their decision to enter into this Stipulation, and they have not relied upon any
representations, written or oral, express or implied, of any other person in verifying and
satisfying themselves as to such facts and/or condition of facts.
13. The Parties represent and warrant to each other that the signatories to this
Stipulation have full power and authority to enter into this Stipulation.
14. This Stipulation may be executed in multiple counterparts, each of which shall be
deemed an original but all of which together shall constitute one and the same instrument.
Delivery of signed counterparts of this Stipulation by facsimile transmission or as PDF
attachment to an email message shall have the same effect as the manual delivery of an original
signed counterpart of this Stipulation, and all signatures on such counterpart will be deemed to
be as valid as an original signature whether or not a Party delivers manually an original signed
counterpart of this Stipulation, although it is the Parties’ intention to deliver original signed
counterpart after any facsimile or email delivery.
Date: November 10, 2009
New York, New York
WEIL, GOTSHAL & MANGES LLP
Attorneys for the Debtors and Debtors in
Possession
767 Fifth Avenue
New York, New York 10153
Attn: Harvey R. Miller
Stephen Karotkin
Joseph H. Smolinsky
Tel: (212) 310-8000
Fax: (212) 310-8007
Email:
[email protected]
/s/ Stephen Karotkin
ALLEN & OVERY LLP
Counsel to Associazione Bancaria Italiana
1221 Avenue of the Americas
New York, New York 10020
Attn: Daniel Guyder
Tel: (212) 756-1132
Fax: (212) 610-6399
Email:
[email protected]
/s/ Daniel Guyder
http://docs.motorsliquidationdocket.com/pdflib/4439_50026.pdf
