Opinion
Case No. 09-17787 (DWK)
09-27-2012
In re: TMST, Inc. f/k/a Thornburg Mortgage, Inc., et al., Debtors.
WHITEFORD TAYLOR PRESTON LLP John F. Carlton (Bar No. 06591) Todd M. Brooks (Bar No. 28515) - and - Douglas K. Mayer, Esquire David C. Bryan, Esquire A.J. Martinez, Esquire WACHTELL, LIPTON, ROSEN & KATZ Counsel for Credit Suisse Securities (USA) LLC, Collateral Agent SHAPIRO SHER GUINOT & SANDLER Joel I. Sher (Bar No. 00719) Richard M. Goldberg (Bar No. 07994) Daniel J. Zeller (Bar No. 28107) Counsel to Joel I. Sher, Chapter 11 Trustee
SO ORDERED
______________________
U. S. BANKRUPTCY JUDGE
Chapter 11
(Jointly Administered)
STIPULATION AND CONSENT ORDER RESETTING DEADLINE FOR THE FILING OF
OBJECTIONS TO CHAPTER 11 TRUSTEE'S MOTION PURSUANT TO SECTION 506(c)
WHEREAS, on May 9, 2012, the Court held a status conference (the "Status Conference") in Credit Suisse Securities (USA) LLC, as Collateral Agent v. TMST, Inc., et al., AP No. 09-00574 (DWK) (Bankr. D. Md. Aug. 28, 2009) (the "Adversary Proceeding");
WHEREAS, at the Status Conference, the parties agreed that Joel I. Sher, Chapter 11 Trustee (the "Trustee"), would file a motion pursuant to section 506(c) of 11 U.S.C. §§ 101 et seq. (the "Bankruptcy Code") for any costs and expenses that the Trustee seeks to recover against property determined in the Adversary Proceeding to be the collateral of Credit Suisse Securities (USA) LLC, Credit Suisse International, UBS AG (as successor to UBS Securities, LLC), Citigroup Global Markets, Ltd., JPMorgan Chase Funding Inc. (as successor to Bear Stearns Investment Products Inc.), Royal Bank of Scotland plc, RBS Securities Inc. (f/k/a Greenwich Capital Markets, Inc.), and Greenwich Capital Derivatives (collectively, the "Counterparties");
WHEREAS, Credit Suisse Securities (USA) LLC initiated and prosecuted the Adversary Proceeding as Collateral Agent on behalf of the Counterparties (the "Collateral Agent");
WHEREAS, on May 21, 2012, the Court entered an Order Setting Deadline for the Trustee to File 506(c) Motion (the "Preliminary Scheduling Order"), [No. 09-17787, D.I. 1578], providing "that if the Trustee files such a motion under Section 506(c), and there is any objection or response thereto, then the opposing parties shall consult and file such report as would be appropriate if the contested matter were an adversary proceeding and therefore Federal Rule [] 26(f) will apply to this matter. Such report shall include a proposed schedule";
WHEREAS, on May 31, 2012, the Trustee filed the Chapter 11 Trustee's Motion Pursuant to Section 506(c) (the "Motion"), [No. 09-17787, D.I. 1583];
WHEREAS, in the Motion, the Trustee seeks allowance to surcharge the Collateral Agent's and Counterparties' share of certain proceeds of collateral (the "MSR Sale Proceeds"), pursuant to, inter alia, section 506(c) of 11 U.S.C. §§ 101 et seq. (the "Bankruptcy Code"), to obtain reimbursement to the Debtors' estates for certain out-of-pocket costs and expenses (the "Sale Expenses") and to create a reserve from the MSR Sale Proceeds for the later payment of any compensation that may ultimately be determined to be payable to the Trustee out of the MSR Sale Proceeds (which the Collateral Agent and the Counterparties dispute may be surcharged against the MSR Sale Proceeds) pursuant to, inter alia, Section 326 of the Bankruptcy Code (the "Compensation," and, together with the Sale Expenses, the "Requested Surcharge Amounts").
WHEREAS, in July 2012, the parties to the Adversary Proceeding, as well as the Counterparties (the "Parties"), agreed to a settlement of all litigation pending in the Adversary Proceeding (the "Settlement Agreement"), for which a motion seeking approval of the Proposed Settlement Agreement was filed with the Court (the "Settlement Motion"), [No. 09-17787, D.I. 1628];
WHEREAS, pursuant to the Settlement Agreement, the Parties agreed that they would attempt a resolution of an agreed amount of all or part of the Requested Surcharge Amounts, for which a reserve was made and is held by the Trustee;
WHEREAS, on August 28, 2012, this Court entered an Order granting the Settlement Motion and approving the Settlement Agreement in all respects, [No. 09-17787, D.I. 1638];
WHEREAS the Court entered a Stipulation and Consent Order Continuing Deadline for the Filing of Objections to Chapter 11 Trustee's Motion Pursuant to 506(c), (the "Stipulation and Consent Order"), [No. 09-17787, D.I. 1630], providing that the deadline for the Collateral Agent and the Counterparties to file an objection to the Motion is September 28, 2012;
WHEREAS the Collateral Agent, the Counterparties and the Trustee have reached an agreement in principal for the terms of a settlement agreement concerning the Sale Expenses, for which a motion seeking approval thereof will be filed with the Court once finalized and executed by the parties;
WHEREAS the Collateral Agent has advised the Trustee that it will file an objection with respect to the Compensation; and
WHEREAS the parties have agreed to an extension of the deadline for filing objections to the Motion, with all parties reserving all rights, including (but not limited to) any argument as to the standing of any party to file an objection to the Motion;
IT IS HEREBY STIPULATED, AGREED AND ORDERED that
(1) the deadline for the Collateral Agent and the Counterparties to file objections to the Motion shall be October 12, 2012; and
(2) in accordance with the Preliminary Scheduling Order, if any objection(s) to the remaining issues raised in the Motion is/are filed, the Trustee and any objector(s) will consult and file a report in accordance with Rule 26(f) of the Federal Rules of Civil Procedure, including a proposed schedule. WHITEFORD TAYLOR PRESTON LLP ______________________
John F. Carlton (Bar No. 06591)
Todd M. Brooks (Bar No. 28515)
- and - Douglas K. Mayer, Esquire
David C. Bryan, Esquire
A.J. Martinez, Esquire
WACHTELL, LIPTON, ROSEN & KATZ
Counsel for Credit Suisse Securities (USA)
LLC, Collateral Agent
SHAPIRO SHER GUINOT & SANDLER ______________________
Joel I. Sher (Bar No. 00719)
Richard M. Goldberg (Bar No. 07994)
Daniel J. Zeller (Bar No. 28107)
Counsel to Joel I. Sher, Chapter 11 Trustee