Case No. 02-B-02-48191 (Jointly Administered)United States Bankruptcy Court, N.D. Illinois.
November 21, 2003
James H.M. Sprayregen, P.C, Marc Kieselstein David R. Seligman, KIRKLAND ELLIS LLP, Counsel for the Debtors and Debtors in Possession
Jack J. Rose, Nicolas P. Stable, WHITE CASE LLP, New York, Counsel for WestLB AG
Peter J. Gurfein, Esq., AKIN GUMP STRAUSS HAUER FELD, LLP, Los Angeles, CA, Counsel for WestLB AG
James H.M. Sprayregen, Mart Kieselstein, David R. Seligman, KIRKLAND ELLIS LLP, New York, NY, Counsel for WestLB AG
STIPULATION AND AGREED ORDER REGARDING PROOF OF CLAIM NUMBERS 36406.35501 40369 AND 40368
EUGENE WEDOFF, Bankruptcy Judge
WHEREAS, WestLB AG (f/k/a Westdeutsche Landesbank Girozentrale), c/o 1211 Avenue of the Americas, New York N.Y. 10036 (“WestLB”), is a Certificate Holder under the Trust Indenture and Mortgage (1989 D) dated as of March 15, 1989 (together with the Trust Agreement and Trust Indenture and Mortgage Supplement (1989 D) dated March 30, 1989 by the Owner Trustee (as defined below), the “N353 Trust Indenture”) between Wilmington Trust Company, not in its individual capacity, except as expressly provided therein, but solely as Owner Trustee (the “N353 Owner Trustee”) and U.S. Bank National Association (as successor in Interest to, and as agent for, State Street Bank and Trust Company, itself a successor to The Connecticut Bank and Trust Company, National Association), as Mortgagee (in such capacity, the “N353Mortgagee”) in connection with the leveraged lease transaction (the “N353 Leveraged Lease Transaction”) contemplated by the Lease Agreement (1989 D) dated as of March 15, 1989 as amended by the First Amendment to Lease Agreement (1989 D) dated as of October 1, 1991 (together with the Lease Supplement No. 1 (1989 D) dated March 30, 1989 between the Owner Trustee and United (as defined below), the “N353Lease”) between the Owner Trustee, as
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Lessor, and United Air Lines, Inc. (“United”), as Lessee with respect to the aircraft having U.S. Registration Number N353UA (the “N353 Aircraft”);
WHEREAS, WestLB is also a party to an ISDA Master Agreement dated as of January 27, 1999, together with the Schedule thereto (collectively, the “ISDA Master Agreement”) between WestLB and United;
WHEREAS, WestLB is a Liquidity Provider in respect of certain aircraft financing transactions, the documents for which arc set forth in (i)Schedule A attached hereto (the “PEG TransactingDocuments”), entered into pre-petition among United and others (the “PBG Transaction”), and (ii) Schedule B attached hereto (the “EETC Transaction Documents”), entered into pre-petition among United and others (the “EETC Transactions”);
WHEREAS, Bank One Trust Company, N.A., is the Indenture Trustee (the “PBG Indenture Trustee”), and/or Collateral Agent (collectively, the “PBG Trustee”) in the PBG Transaction, pursuant to the PBG Transaction Documents;
WHEREAS, U.S. Bank National Association, as successor to or agent for State Street Bank and Trust Company, is the Subordination Agent (the “Subordination Agent”) and/or trustee (collectively, the “EETC Trustee”) in respect of the EETC Transactions;
WHEREAS, the above-captioned debtors (the “Debtors”) established May 12, 2003 as the claims bar date pursuant to that certain Order Pursuant to Sections 105(a), 501, 502 and 1111(a) of the Bankruptcy Code and Bankruptcy Rules 2002(a)(7), 3003(c)(3) and 5005(a) Establishing a Bar Date for Filing Proofs of Claim and Proofs of Interest and Approving Form and Manner of Notice Thereof entered by the Bankruptcy Court on February 27, 2003;
WHEREAS, on May 9, 2003, WestLB timely filed a proof of claim (claim number 36406) against United (the “WestLB Claim”) with respect to (i) the N353 Leveraged Lease
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Transaction (the “WestLB N353 Claim”), (ii) the ISDA Master Agreement (the “WestLB ISDA Claim”), (Hi) the PBG Transaction (the “WestLB PBG Claim”), and (iv) the EETC Transactions (the “WestLB EETC Claims”):
WHEREAS, the N353 Mortgagee timely filed a separate proof of claim (claim number 35501) (the “N353 Mortgagee Claim”) on May 9, 2003 setting forth its claims, including claims for the benefit of the WestLB and NIB Capital, N.V. in connection with the N353 Leveraged Lease Transaction and the documents related thereto in respect of the N353 Aircraft;
WHEREAS, the PBG Trustee timely filed proofs of claim in respect of the PBG Transaction on behalf of, among others, WestLB in the United Air Lines, Inc., and Air Wisconsin, Inc. bankruptcy cases (claim numbers 40369 and 40368) (the “PBG Trustee Claims”):
WHEREAS, the EETC Trustee timely filed proofs of claim in respect of the EETC Transactions on behalf of, among others, WestLB in the United Air Lines, Inc. bankruptcy cases (claim numbers 35841, 35840, 35839, 35838, 35837, 38536, 35829, 35858, 35857 and 35856) (the “EETCTrustee Claims”);
WHEREAS, on October 22, 2003, the Debtors filed their Fourth Omnibus Objection to Claims (Single Debtor Duplicate; Multiple Debtors Duplicate; Superseded; Aircraft Debt; Bondholder Redundant; Books and Records; Reclassify) (the “Objection”) seeking to expunge, inter alia, the WestLB Claim which the Debtors deemed duplicative or otherwise redundant of other claims filed by an indenture trustee, security trustee or sublessor with respect to the same or similar underlying aircraft financing arrangements; and
WHEREAS, the Debtors seek to reduce the number of claims asserted against them, but do not intend to divest WestLB of its right to assert claims to which it is entitled in respect of (a)
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the N353 Leveraged Lease Transaction and the documents related thereto, (b) the ISDA Master Agreement and the transactions thereunder, (c) the PBG Transaction and the documents related thereto, and (d) the EETC Transactions and the documents related thereto.
NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED by and between the undersigned parties (the “Stipulation”) that:
The ISDA Master Agreement
1. Upon Court approval of this Stipulation, and in resolution of the Objection, the WestLB ISDA Claim shall survive and not be expunged, without prejudice to the Debtors* right to object to such claim at any time hereafter.
The PBG Transaction
2. Upon Court approval of this Stipulation, and in resolution of the Objection, the WestLB PBG Claim shall be deemed amended to expunge only the portions of the WestLB PBG Claim contained therein which are duplicative of and included in the PBG Trustee Claims, including the components of such claims and any other of the claims that are included in the PBG Trustee Claims with respect to the PBG Transaction.
3. The foregoing notwithstanding, the WestLB PBG Claim shall not be deemed expunged to the extent that WestLB has claims against United which WestLB is entitled to assert directly against United, rather than the PBG Trustee asserting such claims on WestLB’s behalf, and which are not included in the PBG Trustee Claims (the “WestLB PBG SurvivingClaims”); provided that WestLB will use its best efforts to coordinate with the Debtors and the PBG
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Trustee and not to duplicate claims which it believes have been validly and adequately asserted by the PBG Trustee.
4. Notwithstanding anything contained herein, the Debtors reserve any and all claims, rights, defenses, counterclaims or actions in respect of any of the WestLB PBG Surviving Claims and any claims asserted by the PBG Trustee on behalf of WestLB and nothing contained herein shall be deemed a waiver thereof by the Debtors or any other party in interest. Nothing herein shall impair, amend, or alter the PBG Trustee’s rights with respect to the PBG Trustee Claims or otherwise.
The EETC Claims
5. Upon Court approval of this Stipulation, the WestLB EETC Claims shall be deemed amended to expunge only the portions of the WestLB EETC Claims contained therein that arc duplicative of and included in the EETC Trustee Claims, including the components of such claims and any other of the claims that are included in the EETC Trustee Claims with respect to the EETC Transactions.
6. The foregoing notwithstanding, the WestLB EETC Claims shall not be deemed expunged to the extent that WestLB has claims against United which WestLB is entitled to assert directly against United, rather than the EETC Trustee asserting such claims on WestLB’s behalf, and which are not included in the EETC Trustee Claims (the “WestLB EETC SurvivingClaims”): provided that WestLB will use its best efforts to coordinate with the Debtors and the EETC Trustee and not to duplicate claims which it believes have been validly and adequately asserted by the EETC Trustee.
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7. Notwithstanding anything contained herein, (he Debtors reserve any and all claims, rights, defenses, counterclaims or actions in respect of any of the WestLB EETC Surviving Claims and any claims asserted by the EETC Trustee on behalf of WestLB and nothing contained herein shall be deemed a waiver thereof by the Debtors or any other party in interest. Nothing herein shall impair, amend, or alter the EETC Trustee’s rights with respect to the EETC Trustee Claims or otherwise.
The N353 Leveraged Lease Transaction
8. Upon Court approval of this Stipulation, and in resolution of the Objection, the WestLB N353 Claim shall be deemed amended to expunge the portions of the WestLB N353 Claim in respect of the N353 Leveraged Lease Transaction contained therein that are duplicative of and included in the N353 Mortgagee Claim, including, but not limited to, any claims made by WestLB for principal, interest or rent; provided that if this Court determines that the N353 Mortgagee was not the proper party to assert a claim on behalf of WestLB, WestLB may assert such claim on its own behalf For the avoidance of doubt, any claims contained in the WestLB Claim in respect of the N353 Leveraged Lease Transaction, which are not duplicative of or not included in the N353 Mortgagee Claim shall survive and not be expunged, without prejudice to the Debtors’ right to object to such claims at any time hereafter; further provided, and notwithstanding any provision herein, that it is understood that there shall be no double recovery with respect to any item included in both the N353 Mortgagee Claim and the WestLB Claim with respect to the N353 Leveraged Lease Transaction.
9. Notwithstanding anything contained herein, any claims or causes of action that WestLB may have against the Debtors under or in connection with the N353 Leveraged Lease Transaction or applicable law (in the context of the Leveraged Lease Transaction), including,
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without limitation, any and all claims that WestLB may have against the Debtors for, among other things, costs, expenses or indemnification (the “Surviving WestLB N353 Claims”) may be asserted by WestLB directly against the Debtors (subject to Section 10 below) by amending or supplementing the Surviving WestLB N353 Claim, Notwithstanding anything contained herein, the Debtors reserve any and all claims, rights, defenses, counterclaims or actions in respect of any proof of claim or claim asserted by WestLB and nothing contained herein shall be deemed a waiver thereof by the Debtors or any other party in interest.
10. Prior to asserting any Surviving WestLB N353 Claims directly against the Debtors, WestLB agrees to consult with the N353 Mortgagee to avoid the assertion of a claim or claims that arc also included in the N353 Mortgagee Claim.
General
11. Except as otherwise specifically provided herein, WestLB reserves any and all claims, rights, defenses, counterclaims or action it may have against the Debtors, it being understood that, subject to Sections 1, 2, 3, 5, 6, 8 and 9 of this Stipulation, such claims, rights, defenses, counterclaims or action may be brought by WestLB and shall be preserved in the WestLB Claim, and nothing contained herein shall be deemed a waiver or expungement thereof.
12. Each undersigned counsel represents that he/she is authorized to execute this Stipulation on behalf of his/her respective client.
13. This Stipulation may be executed in multiple counterparts, any of which may be transmitted by facsimile and each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
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14. Stipulation may not be modified, altered, amended or vacated without the written consent of all parties hereto.
15. This Bankruptcy Court shall retain jurisdiction to resolve any disputes or controversies arising from or related to this Stipulation, Any motion or application brought before this Bankruptcy Court to resolve a dispute arising from or related to this Stipulation shall be brought on proper notice and in accordance with relevant Federal Rules of Bankruptcy Procedure and the local rules of the Bankruptcy Court.
16. This Stipulation shall not be effective unless and until approved by the Bankruptcy Court, Upon approval hereof, this Stipulation shall inure to the benefit of and be binding upon the parties hereto as well as all creditors, administrative agents and parties in interest and their successors and assigns.
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SCHEDULE A DOCUMENTS FOR THE PBG TRANSACTION
(a) Trust Indenture, dated as of August 17, 1998, by and among Wilmington Trust Company, not in its individual capacity except as expressly provided herein but solely as Issuer Trustee, PBG Capital Partners, L.L.C., as Trust Depositor, and The First National Bank of Chicago, not in its individual capacity except as expressly provided herein but solely as Indenture Trustee;
(b) Amended and Restated Trust Indenture and Security Agreement, dated as of August 17, 1998, by and among Wilmington Trust Company, not in its individual capacity except as expressly provided herein but solely as Issuer Trustee, each Owner Trustee defined herein, not in its individual capacity except as expressly provided herein but solely as Owner Trustee, PBG Capital Partners, L.L.C., The First National Bank of Chicago, as Indenture Trustee, Pitney Bowes Credit Corporation, as Servicer, Westdeutsche Landesbank Girozentrale, New York Branch, as Liquidity Provider, and The First National Bank of Chicago, not in its individual capacity except as expressly provided herein but solely as Collateral Agent;
(c) Irrevocable Revolving Credit Agreement Class A Aircraft Notes, dated August 17, 1998, by and between The First National Bank of Chicago, not in its individual capacity but solely as Collateral Agent and Westdeutsche Landesbank Girozentrale, New York Branch, as Liquidity Provider, relating to $154,256,000 6.765% Notes; and
(d) Irrevocable Revolving Credit Agreement Class B Aircraft Notes, dated August 17, 1998, by and between The First National Bank of Chicago, not in its individual capacity but solely as Collateral Agent, and Westdeutsche Landesbank Girozentrale, New York Branch as Liquidity Provider, relating to $27,985,000 6.848% Notes,
(collectively “Financing Agreements”)[1] each entered into by, between, and/or among, WestLB and United.
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SCHEDULE BI. 2001-1 EETC Transaction Documents
1. Revolving Credit Agreement, dated as of August 22, 2001, between State Street Bank and Trust Company of Connecticut, National Association, as Subordination Agent (“Subordination Agent”), as agent and trustee for the United Airlines 2001-1 A-1 Pass Through Trust, as Borrower, and Westdeutsche Landesbank Girozentrale, New York Branch, as Liquidity Provider, relating to $291,037,000 6.071% Enhanced Pass Through Certificates;
2. Revolving Credit Agreement, dated as of August 22, 2001, between State Street Bank and Trust Company of Connecticut, National Association, as Subordination Agent, as agent and trustee for the United Airlines 2001-1 A-2 Pass Through Trust, as Borrower, and Westdeutsche Landesbank Girozentrale, New York Branch, as Liquidity Provider, relating to $263,614,000 6.201% Enhanced Pass Through Certificates;
3. Revolving Credit Agreement, dated as of August 22, 2001, between State Street Bank and Trust Company of Connecticut, National Association, as Subordination Agent, as agent and trustee for the United Airlines 2001-1 A-3 Pass Through Trust, as Borrower, and Westdeutsche Landesbank Girozentrale, New York Branch, as Liquidity Provider, relating to $372,987,000 6.602% Enhanced Pass Through Certificates;
4. Revolving Credit Agreement, dated as of August 22, 2001, between State Street Bank and Trust Company of Connecticut, National Association, as Subordination Agent, as agent and trustee for the United Airlines 2001-IB Pass Through Trust, as Borrower, United Airlines 2001-1B Pass Through Trust and Westdeutsche Landesbank Girozentrale, New York Branch, as Liquidity Provider, relating to $150,168,000 6.932% Enhanced Pass Through Certificates;
5. Revolving Credit Agreement, dated as of August 22, 2001, between State Street Bank and Trust Company of Connecticut, National Association, as Subordination Agent, as agent and trustee for the United Airlines 2001-1C Pass Through Trust, as Borrower, and Westdeutsche Landesbank Girozentrale, New York Branch, as Liquidity Provider, relating to $251,885,000 6.831% Enhanced Pass Through Certificates; and
6. Intel-creditor Agreement, dated as of August 22, 2001, between State Street Bank and Trust Company of Connecticut, National Association, not in its individual capacity but solely as Trustee under the United Airlines 2001-1A-1 Pass Through Trust, United Airlines 2001-1A-2 Pass Through Trust, United Airlines 2001-1A-3 Pass Through Trust, United Airlines 2001-1B Pass Through Trust, United Airlines 2001-1C Pass Through Trust, and United Airlines 2001-1D Pass Through Trust and Westdeutsche Landesbank Girozentrale, New York Branch, as Class A-1 Liquidity Provider, Class A-2 Liquidity Provider, Class A-3 Liquidity Provider,