Opinion
BK-03-52103-GWZ and BK-03-52790-GWZ, Jointly Administered under BK-03-52103-GWZ
June 7, 2004
SQUIRE, SANDERS DEMPSEY L.L.P., Craig D. Hansen and Sean T. Cork, Attorneys for the Debtors and Debtors-in-Possession.
LOOPER, REED McGRAW P.C. Paul B. Geilich, Attorney for Creditor.
STIPULATION BETWEEN REORGANIZED DEBTORS, GENERAL ELECTRIC CAPITAL BUSINESS ASSET FUNDING CORP., GENERAL ELECTRIC CAPITAL CORP., AND GENERAL ELECTRIC CREDIT CORP. OF TENNESSEE RESOLVING OMNIBUS OBJECTION TO GUARANTY CLAIMS AS TO CLAIM NUMBERS 367, 371, 372, 373, AND 374 ONLY.
ORDER APPROVING STIPULATION
STIPULATION
AMERCO and Amerco Real Estate Company, reorganized debtors and reorganized debtors-in-possession in the above-captioned, jointly administered chapter 11 cases (the "Reorganized Debtors"), and General Electric Capital Business Asset Funding Corporation ("GE Asset Funding"), General Electric Capital Corporation ("GE Capital") and General Electric Credit Corporation of Tennessee ("GE Credit", and, together with GE Asset Funding and GE Capital, the "Creditor"), through their respective counsel, stipulate as follows:
1. AMERCO commenced its bankruptcy proceeding on June 20, 2003 (the "AMERCO Petition Date"), under chapter 11 of title 11 of the United States Code (the "Bankruptcy Code"). Amerco Real Estate Company ( "AREC") commenced its Chapter 11 bankruptcy case on August 13, 2003 (the "AREC Petition Date").
2. On February 20, 2004, the Court entered an order (the "Confirmation Order") (Docket No. 796) confirming the Debtors' First Amended Joint Plan of Reorganization (the "Plan"). The Plan became effective on March 15, 2004 (the "Effective Date").
3. On September 30, 2003, the Court entered an order (the "Bar Date Order") (Docket No. 415) setting November 10, 2003 as the bar date for filing proofs of claim in these Chapter 11 cases (the "Bar Date"). The Bar Date Order provides that proofs of claim filed after the Bar Date will not be allowed in these Chapter 11 cases.
4. GE Credit filed Claim No. 367 on November 7, 2003, which asserted an unsecured, unliquidated, contingent claim against AMERCO. The basis of this claim was the execution, before the AMERCO Petition Date, by GE Credit and AMERCO, of that certain Corporate Guaranty dated as of November 17, 2000, (the "GE Credit Guaranty Agreement"). Under the GE Credit Guaranty Agreement, AMERCO guaranteed certain obligations of U-Haul Co. of Oregon for the benefit of Creditor. Accordingly, Claim No. 367 asserted a claim against AMERCO only to the extent that AMERCO's guaranty obligations under the GE Credit Guaranty Agreement become due and owing to GE Credit.
5. GE Asset Funding filed Claim No. 371 on November 7, 2003, which asserted an unsecured, unliquidated, contingent claim against AMERCO. The basis of this claim was the execution, before the AMERCO Petition Date, by GE Asset Funding and AMERCO, of that certain Guarantee (Leasing) dated as of September 26, 1996 (the "GE Asset Funding Guaranty Agreement"). Under the GE Asset Funding Guaranty Agreement, AMERCO guaranteed certain obligations of U-Haul Leasing Sales Co. for the benefit of GE Asset Funding. Accordingly, Claim No. 371 asserted a claim against AMERCO only to the extent that AMERCO's guaranty obligations under the GE Asset Funding Guaranty Agreement become due and owing to GE Asset Funding.
6. GE Capital filed Claim No. 372 on November 7, 2003, which asserted an unsecured, unliquidated, contingent claim against AMERCO. The basis of this claim was the execution, before the AMERCO Petition Date, by GE Capital and AMERCO, of that certain Guaranty Agreement (Leasing) dated as of March 15, 1994 (e "First GE Capital Guaranty Agreement", and, together with the GE Credit Guaranty Agreement and the GE Asset Funding Guaranty Agreement, the "GE Guaranty Agreements"). Under the First GE Capital Guaranty Agreement, AMERCO guaranteed certain obligations of U-Haul Leasing Sales Co. for the benefit of GE Capital. Accordingly, Claim No. 372 asserted claims against AMERCO only to the extent that AMERCO's guaranty obligations under the First GE Capital Guaranty Agreement become due and owing to GE Capital.
7. GE Capital filed Claim No 373 on November 7, 2003, which asserted an unsecured, unliquidated, contingent claim against AMERCO. The basis of this claim was the execution, before the AMERCO Petition Date, by GE Capital and AMERCO, of that certain Guarantee dated as of May 5, 2000 (the "Second GE Capital Guaranty Agreement", and, together with the GE Credit Guaranty Agreement and the GE Asset Funding Guaranty Agreement, the "GE Guaranty Agreements"). Under the Second GE Capital Guaranty Agreement, AMERCO guaranteed certain obligations of U-Haul Leasing Sales Co. for the benefit of GE Capital. Accordingly, Claim No 373 asserted claims against AMERCO only to the extent that AMERCO's guaranty obligations under the Second GE Capital Guaranty Agreement become due and owing to GE Capital.
8. GE Capital filed Claim No 374 on November 7, 2003, which asserted an unsecured, unliquidated, contingent claim against AMERCO. The basis of this claim was the execution, before the AMERCO Petition Date, by GE Capital and AMERCO, of that certain Guarantee (Leasing) dated February 10, 2000 (the "Third GE Capital Guaranty Agreement", and, together with the GE Credit Guaranty Agreement and the GE Asset Funding Guaranty Agreement, the "GE Guaranty Agreements"). Under the Third GE Capital Guaranty Agreement, AMERCO guaranteed certain obligations of U-Haul Leasing Sales Co. for the benefit of GE Capital. Accordingly, Claim No. 374 asserted claims against AMERCO only to the extent that AMERCO's guaranty obligations under the Third GE Capital Guaranty Agreement become due and owing to GE Capital.
9. All of the claims filed by Creditor assert guaranty claims against AMERCO, and, as such, constitute Class 11 Claims under the Plan. Article 5.11 of the Plan provides for the treatment of all guaranty obligations in Class 11 by reinstating such guaranty obligations as of the Effective Date and curing certain non-monetary defaults under such guaranty obligations. The Plan identifies the guaranty obligations of Creditor as being reinstated on the Effective Date.
10. On April 29, 2004, the Reorganized Debtors filed the "Reorganized Debtors' Tenth Omnibus Objection to Guaranty Claims" (the "Objection") (Docket No. 918). The Objection seeks the disallowance of guaranty claims filed against the estates on the basis that Article 5.11 of the Plan satisfied such claims in full, and thus no amounts are owing to the holders of such claims. Creditor's claims are subject to the Objection.
11. The Reorganized Debtors and Creditor agree that the GE Guaranty Agreements were reinstated under Article 5.11 of the Plan, that no amounts are currently due or owing to Creditor under the GE Guaranty Agreements, and that the Objection and Creditor's claims should be resolved consensually.
12. Based upon the foregoing, the Reorganized Debtors and Creditor stipulate and agree that Claim Nos. 367, 371, 372, 373, and 374 (collectively, the "Claims") have been adequately treated under the Plan, and that no cash distributions need to be made on account of such Claims, that the Claims should be withdrawn, and that the Objection should be withdrawn as to the Creditor's Claims only.
13. Accordingly, the Reorganized Debtors, and Creditor stipulate to the proposed Order set forth below withdrawing the Claims.
WHEREFORE, the parties request an order approving and granting relief consistent with this Stipulation.
ORDER
Based on the stipulation of the parties, and good cause appearing,
IT IS ORDERED that:
1. Claim Nos. 367, 371, 372, 373, and 374 filed by Creditor (the "Claims") are withdrawn, and Creditor shall receive no further distributions from the Reorganized Debtors' estates on account of such Claims. The withdrawal of these Claims will not impact the reinstatement of any guarantee obligations of Creditor under Section 5.11 of the Plan.
2. Creditor's withdrawal of the Claims will not impair or prejudice any rights or remedies it may have under the GE Guaranty Agreements should an event of default arise under the GE Guaranty Agreements after the Effective Date.
3. The Reorganized Debtors' Objection is withdrawn only as to Claim Nos. 367, 371, 372, 373, and 374 of the Creditor.