Bankruptcy No. BK-S-00-10533 Jointly Administered With: No. BK-S-00-10534, No. BK-S-00-10535, No. BK-S-00-10536, No. BK-S-00-10537United States Bankruptcy Court, D. Nevada
October 10, 2000
JAMES J. KEIGHTLEY, WILLIAM G. BEYER, STEPHEN D. SCHREIBER, BRUCE H. JAMES, Washington, DC, Counsel for Pension Benefit Guaranty Corporation
Deborah D. Williamson, Esq., Cox Smith, Inc., San Antonio, TX, Counsel for the Usecured Creditors Committe
William P. Weintraub, Esq., Pachulski, Stang, Ziehl, Young
Jones, PC, San Francisco, CA, Counsel for Debtors in Possession
STIPULATION AND ORDER WITH RESPECT TO CLAIMS OF THE PENSION BENEFIT GUARANTY CORPORATION
LINDA B. RIEGLE, United States Bankruptcy Judge
Now comes the Pension Benefit Guaranty Corporation (“PBGC”), on its own behalf and on behalf of the Peterson Seed Company, Inc. Pension Plan (the “Pension Plan”), AgriBioTech, Inc (“ABT”)., AgriBioTech, Canada, Inc., Las Vegas Fertilizer Co., Garden West Distributors Co., Inc., and the George W. Hill Co. (collectively the “Debtors”), and the Unsecured Creditors Committee (the “Committee”) who stipulate as follows:
1. The PBGC is a wholly-owned United States Government corporation established under 29 U.S.C. § 1302(a) to administer the pension plan termination insurance program created by Title IV of the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1301-1461 (1994 and Supp IV 1998). A principal purpose of the PBGC is to assure the timely payment of certain guaranteed pension benefits to participants in pension plans that terminate when covered by Title IV. 29 U.S.C. § 1302(a)(2), 1321, 1322. The PBGC is a “governmental unit” as that phrase is defined in 11 U.S.C. § 101(27).
2. The Debtors each filed a voluntary Chapter 11 bankruptcy petition in this Court on January 25, 2000 (the “Petition Date”). On that day the Court ordered that the Debtors’ cases be jointly administered.
3. On February 8, 2000, the Debtors sent notices (“Bar Date Notice”) to creditors stating, inter alia, that July 5, 2000, would be the last day for general creditors to file proofs of claim, and that the bar date for governmental units would be 180 days after January 25, 2000.
4. The PBGC was not served with the Bar Date Notice.
5. ABT is the contributing sponsor of the Pension Plan, as that phrase is defined by 29 U.S.C. § 1301(a)(13). The Pension Plan provides pension benefits for certain employees of ABT’s Peterson Seed Co. division. The Pension Plan is covered under Title IV of ERISA. See29 U.S.C. § 1321.
6. The Debtors are members of a “controlled group,” within the meaning of 29 U.S.C. § 1301(a)(14), with respect to the Pension Plan.
7. The Debtors may be or become liable to the PBGC and/or the Pension Plan under 29 U.S.C. § 1307, 1362. To date the PBGC lacks sufficient information to determine the amount the Debtors might owe, if anything. However, according to ABT’s actuaries, the Pension Plan is fully funded and is in compliance with the minimum funding requirements of 26 U.S.C. § 412.
8. Nevertheless, the PBGC still wishes to file unliquidated proofs of claim. Copies of the proofs of claim the PBGC intends to file are attached as Exhibits 1 through 15 (the “PBGC Claims”).
9. In light of the foregoing, the Debtors and the Creditors’ Committee agree that the PBGC’s proofs of claim should be filed and treated as if they were filed before the Bar Date.
THEREFORE, the Debtors and the Creditors Committee stipulate with the PBGC that it should be given leave by the Court to file its proof of claims as if they had been filed before the Bar Date.