1-43
(Commission File Number)
|
DELAWARE
(State or other jurisdiction of
incorporation)
|
38-0572515
(I.R.S. Employer
Identification No.)
|
401 S. Old Woodward, Suite 370
Birmingham, Michigan
(Address of Principal Executive Offices)
|
48009
(Zip Code)
|
o |
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
|
o |
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17-CFR 240.14a-12)
|
o |
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
|
o |
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
|
·
|
the GUC Trust, which is responsible for administrating certain post-Effective Date responsibilities under the Plan, including distributing New GM Securities to holders of Allowed General Unsecured Claims and resolving outstanding Disputed Claims;
|
·
|
the Environmental Response Trust, which is responsible for conducting, managing, and/or funding Environmental Actions with respect to certain real property owned by the Debtors after the consummation of the 363 Sale;
|
·
|
the Asbestos Trust, which is responsible for directing the processing, liquidation, and payment of all Asbestos Personal Injury Claims; and
|
·
|
the Avoidance Action Trust, which is responsible for liquidating and distributing any proceeds of the Term Loan Avoidance Action.
|
·
|
Class 1: Secured Claims;
|
·
|
Class 2: Priority Non-Tax Claims;
|
·
|
Class 3: General Unsecured Claims;
|
·
|
Class 4: Property Environmental Claims;
|
·
|
Class 5: Asbestos Personal Injury Claims; and
|
·
|
Class 6: Equity Interests in the Company.
|
·
|
Class 1: Except to the extent that a holder of an Allowed Secured Claim agrees to a different treatment of such claim, on the Effective Date, or as soon thereafter as is reasonably practicable, each holder of an Allowed Secured Claim shall receive, at the option of the Debtors, and in full satisfaction of such claim, either (i) cash in an amount equal to one hundred percent (100%) of the unpaid amount of such Allowed Secured Claim, (ii) the proceeds of the sale or disposition of the collateral securing such Allowed Secured Claim, net of the costs of disposition of such collateral, (iii) the collateral securing such Allowed Secured Claim, (iv) such treatment that leaves unaltered the legal, equitable, and contractual rights to which the holder of such Allowed Secured Claim is entitled, or (v) such other distribution as is necessary to satisfy the requirements of section 1129 of the Bankruptcy Code.
|
·
|
Class 2: Except to the extent that a holder of an Allowed Priority Non-Tax Claim agrees to a different treatment of such claim, on the Effective Date, or as soon thereafter as is reasonably practicable, each such holder shall receive, in full satisfaction of such claim, an amount in cash equal to the Allowed amount of such claim.
|
·
|
Class 3: As soon as is reasonably practicable after the Effective Date, each holder of an Allowed General Unsecured Claim as of the Distribution Record Date shall receive from the GUC Trust its Pro Rata Share of (i) the New GM Securities or the proceeds thereof, if any, and (ii) the GUC Trust Units, in accordance with the terms of the GUC Trust and the GUC Trust Agreement, as further described herein. The GUC Trust shall make subsequent distributions of New GM Securities and GUC Trust Units to holders of Disputed General Unsecured Claims as of the Distribution Record Date whose Claims are subsequently Allowed in accordance with the terms of the GUC Trust and the GUC Trust Agreement.
|
·
|
Class 4: On the Effective Date, Property Environmental Claims shall be satisfied and treated in accordance with the terms of the Environmental Response Trust Agreement, the ERT Settlement Agreement, and the Priority Order Sites Consent Decrees and Settlement Agreements, as further described herein. In addition, certain non-owned sites are subject to the terms of the March 29 Settlement Agreement, as further described herein.
|
·
|
Class 5: On the Effective Date, or as soon thereafter as is reasonably practicable, all Asbestos Personal Injury Claims shall be channeled to the Asbestos Trust and all Asbestos Personal Injury Claims shall be satisfied in accordance with the terms of the Asbestos Trust, the Asbestos Trust Distribution Procedures, and the Asbestos Trust Agreement, as further described herein.
|
·
|
Class 6: On the Effective Date, all existing equity securities issued by the Company were cancelled and one new share of Company common stock was issued by the Company to the GUC Trust as custodian, who shall hold such share for the benefit of the holders of such former equity securities consistent with their former economic entitlements. The equity securities of the other Debtors shall also be cancelled as the Debtors are dissolved or merged out of existence pursuant to the Plan. Each holder of an existing equity interest shall neither receive nor retain any property or interest in property on account of such equity interest unless all Allowed Claims have been satisfied in full, in which case the holders of such equity interests may receive a pro rata distribution of any remaining assets of the Debtors. The Company does not expect holders of equity interests to receive any distribution because the creditors of the Company are not expected to be paid in full.
|
Number
|
Description
|
2.1
|
Findings of Fact and Conclusions of Law and Order pursuant to sections 1129(A) and (B) of the Bankruptcy Code and Rule 3020 of the Federal Rules of Bankruptcy Procedure Confirming Debtors Second Amended Joint Chapter 11 Plan signed on March 29, 2011.
|
2.2
|
Debtors’ Second Amended Joint Chapter 11 Plan filed with the U.S. Bankruptcy Court for the Southern District of New York on March 18, 2011.
|
3.1
|
GUC Trust Agreement, dated March 30, 2011, by and among the Debtors, Wilmington Trust Company and FTI Consulting, Inc.
|
3.2
|
Environmental Response Trust Consent Decree and Settlement Agreement, effective March 31, 2011, by and among the Debtors and the Environmental Response Trust Administrative Trustee, the United States of America, the States of Delaware, Illinois, Indiana, Kansas, Michigan, Missouri, New Jersey, New York, Ohio, Wisconsin, Commonwealth of Virginia, the Louisiana Department of Environmental Quality, the Massachusetts Department of Environmental Protection, the Department of Environmental Protection of the Commonwealth of Pennsylvania, and the Saint Regis Mohawk Tribe.
|
3.3
|
Environmental Response Trust Agreement, effective March 31, 2011, by and among the Company, Remediation and Liability Management Company, Environmental Corporate Remediation Company, Inc., EPLET, LLC, the Unites States of America, the States of Delaware, Illinois, Indiana, Kansas, Michigan, Missouri, New Jersey, New York, Ohio, Wisconsin, Commonwealth of Virginia, the Louisiana Department of Environmental Quality, the Massachusetts Department of Environmental Protection, the Department of Environmental Protection of the Commonwealth of Pennsylvania, and the Saint Regis Mohawk Tribe.
|
3.4
|
MLC Asbestos PI Trust Agreement, dated March 31, 2011, by and among the Debtors, the Legal Representative for Future Claimants, the Official Committee of Unsecured Creditors Holding Asbestos-Related Claims, the Asbestos PI Trustee, Wilmington Trust Company, and the members of the Trust Advisory Committee identified on the signature pages thereto.
|
3.5
|
Avoidance Action Trust Agreement, dated March 30, 2011, by and among the Debtors, Wilmington Trust Company and FTI Consulting, Inc.
|
99.1
|
Consent Decree and Settlement Agreement, dated March 3, 2011 and effective March 31, 2011, by and among the Company, Remediation and Liability
|
Management Company, Environmental Corporate Remediation Company, Inc. and the United States of America re: the Harvey Knott site. | |
99.2
|
Consent Decree and Settlement Agreement, dated March 3, 2011 and effective March 31, 2011, by and among the Company, Remediation and Liability Management Company, Environmental Corporate Remediation Company, Inc., the United States of America and the State of Iowa re: the Sioux City site.
|
99.3
|
Consent Decree and Settlement Agreement, dated March 3, 2011 and effective March 31, 2011, by and among the Company, Remediation and Liability Management Company, Environmental Corporate Remediation Company, Inc., the United States of America and the State of Indiana re: the Scatterfield site.
|
99.4
|
Consent Decree and Settlement Agreement, dated March 3, 2011 and effective March 31, 2011, by and among the Company, Remediation and Liability Management Company, Environmental Corporate Remediation Company, Inc., the United States of America and the State of Ohio re: the Delphi Harrison site.
|
99.5
|
Consent Decree and Settlement Agreement, dated March 3, 2011 and effective March 31, 2011, by and among the Company, Remediation and Liability Management Company, Environmental Corporate Remediation Company, Inc., the United States of America and the State of Ohio re: the Garland Road site.
|
99.6
|
Consent Decree and Settlement Agreement, dated March 3, 2011 and effective March 31, 2011, by and among the Company, Remediation and Liability Management Company, Environmental Corporate Remediation Company, Inc., the United States of America and the State of Wisconsin re: the Wheeler Pit site.
|
99.7
|
Consent Decree and Settlement Agreement, dated March 3, 2011 and effective March 31, 2011, by and among the Company, Remediation and Liability Management Company, Environmental Corporate Remediation Company, Inc. and the United States of America re: the final non-owned site.
|
99.8
|
Press Release, dated March 31, 2011, titled “Motors Liquidation Company Chapter 11 Plan Consummated.”
|
MOTORS LIQUIDATION COMPANY
(Registrant)
|
|||
April 4, 2011
|
By:
|
/s/ James Selzer
|
|
(Date)
|
James Selzer
|
||
Vice President and Treasurer
|
|||
Number
|
Description
|
2.1
|
Findings of Fact and Conclusions of Law and Order pursuant to sections 1129(A) and (B) of the Bankruptcy Code and Rule 3020 of the Federal Rules of Bankruptcy Procedure Confirming Debtors Second Amended Joint Chapter 11 Plan signed on March 29, 2011.
|
2.2
|
Debtors’ Second Amended Joint Chapter 11 Plan filed with the U.S. Bankruptcy Court for the Southern District of New York on March 18, 2011.
|
3.1
|
GUC Trust Agreement, dated March 30, 2011, by and among the Debtors, Wilmington Trust Company and FTI Consulting, Inc.
|
3.2
|
Environmental Response Trust Consent Decree and Settlement Agreement, effective March 31, 2011, by and among the Debtors and the Environmental Response Trust Administrative Trustee, the United States of America, the States of Delaware, Illinois, Indiana, Kansas, Michigan, Missouri, New Jersey, New York, Ohio, Wisconsin, Commonwealth of Virginia, the Louisiana Department of Environmental Quality, the Massachusetts Department of Environmental Protection, the Department of Environmental Protection of the Commonwealth of Pennsylvania, and the Saint Regis Mohawk Tribe.
|
3.3
|
Environmental Response Trust Agreement, effective March 31, 2011, by and among the Company, Remediation and Liability Management Company, Environmental Corporate Remediation Company, Inc., EPLET, LLC, the Unites States of America, the States of Delaware, Illinois, Indiana, Kansas, Michigan, Missouri, New Jersey, New York, Ohio, Wisconsin, Commonwealth of Virginia, the Louisiana Department of Environmental Quality, the Massachusetts Department of Environmental Protection, the Department of Environmental Protection of the Commonwealth of Pennsylvania, and the Saint Regis Mohawk Tribe.
|
3.4
|
MLC Asbestos PI Trust Agreement, dated March 31, 2011, by and among the Debtors, the Legal Representative for Future Claimants, the Official Committee of Unsecured Creditors Holding Asbestos-Related Claims, the Asbestos PI Trustee, Wilmington Trust Company and the members of the Trust Advisory Committee identified on the signature pages thereto.
|
3.5
|
Avoidance Action Trust Agreement, dated March 30, 2011, by and among the Debtors, Wilmington Trust Company and FTI Consulting, Inc.
|
99.1
|
Consent Decree and Settlement Agreement, dated March 3, 2011 and effective March 31, 2011, by and among the Company, Remediation and Liability Management Company, Environmental Corporate Remediation Company, Inc. and the United States of America re: the Harvey Knott site.
|
99.2
|
Consent Decree and Settlement Agreement, dated March 3, 2011 and effective March 31, 2011, by and among the Company, Remediation and Liability Management Company, Environmental Corporate Remediation Company, Inc., the United States of America and the State of Iowa re: the Sioux City site.
|
99.3
|
Consent Decree and Settlement Agreement, dated March 3, 2011 and effective March 31, 2011, by and among the Company, Remediation and Liability Management Company, Environmental Corporate Remediation Company, Inc., the United States of America and the State of Indiana re: the Scatterfield site.
|
99.4
|
Consent Decree and Settlement Agreement, dated March 3, 2011 and effective March 31, 2011, by and among the Company, Remediation and Liability Management Company, Environmental Corporate Remediation Company, Inc., the United States of America and the State of Ohio re: the Delphi Harrison site.
|
99.5
|
Consent Decree and Settlement Agreement, dated March 3, 2011 and effective March 31, 2011, by and among the Company, Remediation and Liability Management Company, Environmental Corporate Remediation Company, Inc., the United States of America and the State of Ohio re: the Garland Road site.
|
99.6
|
Consent Decree and Settlement Agreement, dated March 3, 2011 and effective March 31, 2011, by and among the Company, Remediation and Liability Management Company, Environmental Corporate Remediation Company, Inc., the United States of America and the State of Wisconsin re: the Wheeler Pit site.
|
99.7
|
Consent Decree and Settlement Agreement, dated March 3, 2011 and effective March 31, 2011, by and among the Company, Remediation and Liability Management Company, Environmental Corporate Remediation Company, Inc. and the United States of America re: the final non-owned site.
|
99.8
|
Press Release, dated March 31, 2011, titled “Motors Liquidation Company Chapter 11 Plan Consummated.”
|
: | ||
In re | : | Chapter 11 Case No. |
: | ||
MOTORS LIQUIDATION COMPANY, et al., | : | 09-50026 (REG) |
f/k/a General Motors Corp., et al. | : | |
: | ||
: | ||
Debtors. | : | (Jointly Administered) |
: | ||
: |
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890-1615
|
|
Attn:
|
Corporate Trust Administration
|
Telephone:
|
(302) 636-6000
|
Telecopier:
|
(302) 636-4140
|
E-mail:
|
guctrustadministrator@wilmingtontrust.com
|
Gibson, Dunn & Crutcher LLP
200 Park Avenue
New York, New York 10166-0193
|
|
Attn:
|
Matthew J. Williams, Esq.
|
Keith R. Martorana, Esq.
|
|
Telephone:
|
(212) 351-4000
|
Telecopier:
|
(212) 351-4035
|
E-mail:
|
mjwilliams@gibsondunn.com
|
kmartorana@gibsondunn.com
|
FTI Consulting
One Atlantic Center
1201 West Peachtree Street, Suite 500
Atlanta, Georgia 30309
|
|
Attn:
|
Anna Phillips
|
Telephone:
|
(404) 460-6272
|
Telecopier:
|
(404) 460-6230
|
E-mail:
|
anna.phillips@fticonsulting.com
|
Elliott P. Laws, Esq.
1001 Pennsylvania Avenue, N.W.
Washington, DC 20004-2595
|
|
Telephone:
|
(202) 624-2798
|
Telecopier:
|
(202) 628-5116
|
E-mail:
|
ELaws@crowell.com
|
Michael O. Hill, Esq.
2300 Wisconsin Avenue, NW. Suite 300
Washington, DC 20007
|
|
Telephone:
|
(202) 558-2100
|
Telecopier:
|
(202) 558-2127 |
E-mail:
|
mhill@hillkehne.com |
Kirk P. Watson, Esq.
2301 Woodlawn Boulevard
Austin, Texas 78703
|
|
Telephone:
|
(512) 478-6695
|
Telecopier:
|
(512) 478-6697 |
E-mail:
|
kirkpwatson@gmail.com |
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890-1615
|
|
Attn:
|
Corporate Trust Administration
|
Telephone:
|
(302) 636-6000
|
Telecopier:
|
(302) 636-4140
|
E-mail:
|
guctrustadministrator@wilmingtontrust.com
|
Gibson, Dunn & Crutcher LLP
200 Park Avenue
New York, New York 10166-0193
|
|
Attn:
|
Matthew J. Williams, Esq.
|
Keith R. Martorana, Esq.
|
|
Telephone:
|
(212) 351-4000
|
Telecopier:
|
(212) 351-4035
|
E-mail:
|
mjwilliams@gibsondunn.com
|
kmartorana@gibsondunn.com
|
FTI Consulting
One Atlantic Center
1201 West Peachtree Street, Suite 500
Atlanta, Georgia 30309
|
|
Attn:
|
Anna Phillips
|
Telephone:
|
(404) 460-6272
|
Telecopier:
|
(404) 460-6230
|
E-mail:
|
anna.phillips@fticonsulting.com
|
Dated: |
New York, York
|
|
|
March 29, 2011 |
|
|
|
|
|
|
|
|
|
/s/ Robert E. Gerber | ||
United States Bankruptcy Judge
|
UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF NEW YORK
|
||
x | ||
In re | : | Chapter 11 Case No. |
: | ||
MOTORS LIQUIDATION COMPANY, et al., | : | 09-50026 (REG) |
f/k/a General Motors Corp., et al. | : | |
: | ||
: | (Jointly Administered) | |
Debtors. | : | |
x |
Definitions and Interpretation
|
1
|
|||
1.1
|
363 Transaction
|
1
|
||
1.2
|
Administrative Expenses
|
1
|
||
1.3
|
ADR Procedures
|
2
|
||
1.4
|
Allowed
|
2
|
||
1.5
|
Asbestos Claimants’ Committee
|
2
|
||
1.6
|
Asbestos Claims
|
2
|
||
1.7
|
Asbestos Insurance Assets
|
2
|
||
1.8
|
Asbestos Insurance Assets Trust
|
3
|
||
1.9
|
Asbestos Personal Injury Claim
|
3
|
||
1.10
|
Asbestos Property Damage Claim
|
3
|
||
1.11
|
Asbestos Trust
|
4
|
||
1.12
|
Asbestos Trust Administrator
|
4
|
||
1.13
|
Asbestos Trust Agreement
|
4
|
||
1.14
|
Asbestos Trust Assets
|
4
|
||
1.15
|
Asbestos Trust Claim
|
4
|
||
1.16
|
Asbestos Trust Distribution Procedures
|
5
|
||
1.17
|
Asbestos Trust Transfer Date
|
5
|
||
1.18
|
Avoidance Action
|
5
|
||
1.19
|
Avoidance Action Trust
|
5
|
||
1.20
|
Avoidance Action Trust Administrative Cash
|
5
|
||
1.21
|
Avoidance Action Trust Administrator
|
5
|
||
1.22
|
Avoidance Action Trust Agreement
|
6
|
||
1.23
|
Avoidance Action Trust Assets
|
6
|
||
1.24
|
Avoidance Action Trust Claims Reserve
|
6
|
||
1.25
|
Avoidance Action Trust Monitor
|
6
|
||
1.26
|
Avoidance Action Trust Transfer Date
|
6
|
||
1.27
|
Ballot
|
6
|
||
1.28
|
Bankruptcy Code
|
6
|
1.29
|
Bankruptcy Court
|
6
|
||
1.30
|
Bankruptcy Rules
|
7
|
||
1.31
|
Budget
|
7
|
||
1.32
|
Business Day
|
7
|
||
1.33
|
Cash
|
7
|
||
1.34
|
Causes of Action
|
7
|
||
1.35
|
Chapter 11 Cases
|
7
|
||
1.36
|
Claim
|
7
|
||
1.37
|
Claim Settlement Procedures
|
7
|
||
1.38
|
Class
|
8
|
||
1.39
|
Collateral
|
8
|
||
1.40
|
Commencement Date
|
8
|
||
1.41
|
Confirmation Date
|
8
|
||
1.42
|
Confirmation Hearing
|
8
|
||
1.43
|
Confirmation Order
|
8
|
||
1.44
|
Creditors’ Committee
|
8
|
||
1.45
|
Debtors
|
8
|
||
1.46
|
Demand
|
8
|
||
1.47
|
DIP Credit Agreement
|
8
|
||
1.48
|
DIP Credit Agreement Claims
|
9
|
||
1.49
|
DIP Lenders
|
9
|
||
1.50
|
DIP Lenders’ Avoidance Actions
|
9
|
||
1.51
|
DIP Lenders’ Avoidance Assets
|
9
|
||
1.52
|
DIP Lenders’ Collateral
|
9
|
||
1.53
|
Disclosure Statement
|
9
|
||
1.54
|
Disputed
|
9
|
||
1.55
|
Distribution Record Date
|
10
|
||
1.56
|
District Court
|
10
|
||
1.57
|
EDC
|
10
|
1.58
|
Effective Date
|
10
|
||
1.59
|
ENCORE
|
10
|
||
1.60
|
Encumbrance
|
10
|
||
1.61
|
Entity
|
10
|
||
1.62
|
Environmental Action
|
10
|
||
1.63
|
Environmental Laws
|
10
|
||
1.64
|
Environmental Response Trust
|
11
|
||
1.65
|
Environmental Response Trust Administrative Funding Account
|
11
|
||
1.66
|
Environmental Response Trust Administrative Trustee
|
11
|
||
1.67
|
Environmental Response Trust Agreement
|
11
|
||
1.68
|
Environmental Response Trust Assets
|
11
|
||
1.69
|
Environmental Response Trust Consent Decree and Settlement Agreement
|
12
|
||
1.70
|
Environmental Response Trust Parties
|
12
|
||
1.71
|
Environmental Response Trust Properties
|
12
|
||
1.72
|
Environmental Response Trust Transfer Date
|
12
|
||
1.73
|
Equity Interest
|
12
|
||
1.74
|
Eurobond Claim
|
12
|
||
1.75
|
Final Order
|
12
|
||
1.76
|
Fiscal and Paying Agency Agreements
|
13
|
||
1.77
|
Fiscal and Paying Agents
|
13
|
||
1.78
|
Future Claimants’ Representative
|
13
|
||
1.79
|
General Unsecured Claim
|
13
|
||
1.80
|
Governmental Authorities
|
13
|
||
1.81
|
GUC Trust
|
13
|
||
1.82
|
GUC Trust Administrative Fund
|
13
|
||
1.83
|
GUC Trust Administrator
|
14
|
||
1.84
|
GUC Trust Agreement
|
14
|
||
1.85
|
GUC Trust Assets
|
14
|
||
1.86
|
GUC Trust Monitor
|
14
|
1.87
|
GUC Trust Transfer Date
|
14
|
||
1.88
|
GUC Trust Units
|
14
|
||
1.89
|
Indentures
|
14
|
||
1.90
|
Indenture Trustee/Fiscal and Paying Agent Reserve Cash
|
16
|
||
1.91
|
Indenture Trustees
|
16
|
||
1.92
|
Indirect Asbestos Claim
|
16
|
||
1.93
|
Initial Debtors
|
17
|
||
1.94
|
Medical Liens
|
17
|
||
1.95
|
MLC
|
17
|
||
1.96
|
MSPA
|
17
|
||
1.97
|
New GM
|
17
|
||
1.98
|
New GM Securities
|
18
|
||
1.99
|
New GM Stock
|
18
|
||
1.100
|
New GM Warrants
|
18
|
||
1.101
|
Note Claim
|
18
|
||
1.102
|
Nova Scotia Guarantee Claims
|
18
|
||
1.103
|
Nova Scotia Wind-Up Claim
|
19
|
||
1.104
|
Person
|
19
|
||
1.105
|
Plan
|
19
|
||
1.106
|
Plan Supplement
|
20
|
||
1.107
|
Post-Effective Date MLC
|
20
|
||
1.108
|
Priority Non-Tax Claim
|
20
|
||
1.109
|
Priority Order Sites
|
20
|
||
1.110
|
Priority Order Sites Consent Decrees and Settlement Agreements
|
20
|
||
1.111
|
Priority Tax Claim
|
20
|
||
1.112
|
Pro Rata Share
|
20
|
||
1.113
|
Property or Properties
|
21
|
||
1.114
|
Property Environmental Claim
|
21
|
||
1.115
|
Protected Party
|
21
|
1.116
|
REALM
|
22
|
||
1.117
|
Registered Holder
|
22
|
||
1.118
|
Residual Wind-Down Assets
|
22
|
||
1.119
|
Schedules
|
22
|
||
1.120
|
Secured Claim
|
22
|
||
1.121
|
Solicitation Procedures
|
23
|
||
1.122
|
Tax Code
|
23
|
||
1.123
|
Term Loan Avoidance Action
|
23
|
||
1.124
|
Term Loan Avoidance Action Beneficiaries
|
23
|
||
1.125
|
Trusts
|
23
|
||
1.126
|
Unliquidated Litigation Claim
|
23
|
||
1.127
|
U.S. Treasury
|
23
|
||
1.128
|
U.S. Trustee
|
23
|
||
1.129
|
Voting Deadline
|
23
|
||
Article II.
|
Administrative Expenses and Priority Tax Claims
|
24
|
||
2.1
|
Administrative Expenses
|
24
|
||
2.2
|
Compensation and Reimbursement Claims
|
24
|
||
2.3
|
Priority Tax Claims
|
24
|
||
2.4
|
DIP Credit Agreement Claims
|
24
|
||
2.5
|
Special Provisions Regarding Fees and Expenses of Indenture Trustees and Fiscal and Paying Agents
|
26
|
||
Article III.
|
Classification of Claims and Equity Interests
|
26
|
||
Article IV.
|
Treatment of Claims and Equity Interests
|
27
|
||
4.1
|
Class 1 – Secured Claims
|
27
|
||
4.2
|
Class 2 - Priority Non-Tax Claims
|
27
|
||
4.3
|
Class 3 - General Unsecured Claims
|
27
|
||
4.4
|
Class 4 – Property Environmental Claims
|
30
|
||
4.5
|
Class 5 – Asbestos Personal Injury Claims
|
30
|
||
4.6
|
Class 6 - Equity Interests in MLC
|
31
|
||
Article V.
|
Provisions Governing Distributions
|
32
|
5.1
|
Distribution Record Date
|
32
|
||
5.2
|
Method of Distributions Under the Plan
|
32
|
||
a.
|
Payments and Transfers on Effective Date
|
32
|
||
b.
|
Repayment of Excess Cash to DIP Lenders
|
33
|
||
c.
|
Payment of Cash or Certain Assets to Charitable Organizations
|
34
|
||
d.
|
Distributions of Cash
|
35
|
||
e.
|
Sale of New GM Warrants About to Expire
|
35
|
||
5.3
|
Delivery of Distributions and Undeliverable Distributions
|
35
|
||
5.4
|
Withholding and Reporting Requirements
|
36
|
||
5.5
|
Time Bar to Cash Payments
|
37
|
||
5.6
|
Minimum Distributions and Fractional Shares or Units
|
37
|
||
5.7
|
Setoffs
|
38
|
||
5.8
|
Transactions on Business Days
|
38
|
||
5.9
|
Allocation of Plan Distribution Between Principal and Interest
|
38
|
||
5.10
|
Surrender of Existing Publicly-Traded Securities
|
39
|
||
5.11
|
Class Proofs of Claim
|
39
|
||
Article VI.
|
Means for Implementation and Execution of the Plan
|
40
|
||
6.1
|
Substantive Consolidation
|
40
|
||
6.2
|
The GUC Trust
|
40
|
||
a.
|
Execution of GUC Trust Agreement
|
40
|
||
b.
|
Purpose of GUC Trust
|
40
|
||
c.
|
GUC Trust Assets
|
41
|
||
d.
|
Governance of GUC Trust
|
41
|
||
e.
|
GUC Trust Administrator and GUC Trust Monitor
|
41
|
||
f.
|
Role of GUC Trust Administrator
|
42
|
||
g.
|
Role of GUC Trust Monitor
|
41
|
||
h.
|
Transferability of GUC Trust Interests
|
42
|
||
i.
|
Cash
|
42
|
||
j.
|
Costs and Expenses of GUC Trust Administrator
|
42
|
k.
|
Compensation of GUC Trust Administrator
|
42
|
||
l.
|
Distribution of GUC Trust Assets
|
43
|
||
m.
|
Retention of Professionals by GUC Trust Administrator and GUC Trust Monitor
|
43
|
||
n.
|
U.S. Federal Income Tax Treatment of GUC Trust
|
43
|
||
o.
|
Dissolution
|
44
|
||
p.
|
Indemnification of GUC Trust Administrator and GUC Trust Monitor
|
44
|
||
q.
|
Closing of Chapter 11 Cases
|
45
|
||
6.3
|
The Asbestos Trust
|
45
|
||
a.
|
Execution of Asbestos Trust Agreement
|
45
|
||
b.
|
Purpose of Asbestos Trust
|
45
|
||
c.
|
Assumption of Certain Liabilities by Asbestos Trust
|
45
|
||
d.
|
Asbestos Trust Assets
|
45
|
||
e.
|
Governance of Asbestos Trust
|
46
|
||
f.
|
The Asbestos Trust Administrator
|
46
|
||
g.
|
Role of Asbestos Trust Administrator
|
46
|
||
h.
|
Nontransferability of Asbestos Trust Interests
|
46
|
||
i.
|
Cash
|
46
|
||
j.
|
Costs and Expenses of Asbestos Trust
|
46
|
||
k.
|
Resolution of Asbestos Personal Injury Claims
|
46
|
||
l.
|
Distribution of Asbestos Trust Assets
|
47
|
||
m.
|
Retention of Professionals by Asbestos Trust Administrator
|
47
|
||
n.
|
U.S. Federal Income Tax Treatment of Asbestos Trust
|
47
|
||
o.
|
Dissolution
|
48
|
||
p.
|
Indemnification of Asbestos Trust Administrator
|
48
|
||
6.4
|
The Environmental Response Trust
|
48
|
||
a.
|
Environmental Response Trust Agreement and Environmental Response Trust Consent Decree and Settlement Agreement
|
48
|
b.
|
Purpose of Environmental Response Trust
|
49
|
||
c.
|
Environmental Response Trust Assets
|
49
|
||
d.
|
Governance of Environmental Response Trust
|
50
|
||
e.
|
Role of Environmental Response Trust Administrative Trustee
|
50
|
||
f.
|
Nontransferability of Environmental Response Trust Interests
|
50
|
||
g.
|
Cash
|
50
|
||
h.
|
Indemnification of Environmental Response Trust Administrative Trustee
|
50
|
||
i.
|
U.S. Federal Income Tax Treatment of Environmental Response Trust
|
51
|
||
6.5
|
The Avoidance Action Trust
|
51
|
||
a.
|
Execution of Avoidance Action Trust Agreement
|
51
|
||
b.
|
Purpose of Avoidance Action Trust
|
52
|
||
c.
|
Avoidance Action Trust Assets
|
52
|
||
d.
|
Governance of Avoidance Action Trust
|
52
|
||
e.
|
Avoidance Action Trust Administrator and Avoidance Action Trust Monitor
|
52
|
||
f.
|
Role of Avoidance Action Trust Administrator
|
52
|
||
g.
|
Role of Avoidance Action Trust Monitor
|
53
|
||
h.
|
Nontransferability of Avoidance Action Trust Interests
|
53
|
||
i.
|
Cash
|
53
|
||
j.
|
Distribution of Avoidance Action Trust Assets
|
53
|
||
k.
|
Costs and Expenses of Avoidance Action Trust
|
54
|
||
l.
|
Compensation of Avoidance Action Trust Administrator
|
54
|
||
m.
|
Retention of Professionals by Avoidance Action Trust Administrator and Avoidance Action Trust Monitor
|
54
|
||
n.
|
U.S. Federal Income Tax Treatment of Avoidance Action Trust
|
54
|
||
o.
|
Dissolution
|
58
|
p.
|
Indemnification of Avoidance Action Trust Administrator and Avoidance Action Trust Monitor
|
59
|
||
6.6
|
Securities Law Matters
|
59
|
||
6.7
|
Cancellation of Existing Securities and Agreements
|
60
|
||
6.8
|
Equity Interests in MLC Subsidiaries Held by the Debtors
|
61
|
||
6.9
|
Administration of Taxes
|
61
|
||
6.10
|
Dissolution of the Debtors
|
61
|
||
6.11
|
Determination of Tax Filings and Taxes
|
62
|
||
6.12
|
Books and Records
|
63
|
||
6.13
|
Corporate Action
|
64
|
||
6.14
|
Effectuating Documents and Further Transactions
|
64
|
||
6.15
|
Continued Applicability of Final Order Approving DIP Credit Agreement
|
65
|
||
Article VII.
|
Procedures for Disputed Claims
|
65
|
||
7.1
|
Objections to Claims and Resolution of Disputed Claims
|
65
|
||
7.2
|
No Distribution Pending Allowance
|
66
|
||
7.3
|
Estimation
|
67
|
||
7.4
|
Allowance of Disputed Claims
|
67
|
||
7.5
|
Dividends
|
67
|
||
Article VIII.
|
Executory Contracts and Unexpired Leases
|
67
|
||
8.1
|
Executory Contracts and Unexpired Leases
|
67
|
||
8.2
|
Approval of Rejection of Executory Contracts and Unexpired Leases
|
68
|
||
8.3
|
Rejection Claims
|
68
|
||
Article IX.
|
Effectiveness of the Plan
|
68
|
||
9.1
|
Condition Precedent to Confirmation of Plan
|
68
|
||
9.2
|
Conditions Precedent to Effective Date
|
68
|
||
9.3
|
Satisfaction and Waiver of Conditions
|
69
|
||
9.4
|
Effect of Nonoccurrence of Conditions to Consummation
|
69
|
||
Article X.
|
Effect of Confirmation
|
70
|
10.1
|
Vesting of Assets
|
70
|
||
10.2
|
Release of Assets
|
70
|
||
10.3
|
Binding Effect
|
70
|
||
10.4
|
Term of Injunctions or Stays
|
71
|
||
10.5
|
Term Loan Avoidance Action; Setoffs
|
71
|
||
10.6
|
Injunction
|
71
|
||
10.7
|
Injunction Against Interference with Plan
|
71
|
||
10.8
|
Special Provisions for Governmental Units
|
71
|
||
Article XI.
|
Retention of Jurisdiction
|
72
|
||
11.1
|
Jurisdiction of Bankruptcy Court
|
72
|
||
Article XII.
|
Miscellaneous Provisions
|
74
|
||
12.1
|
Dissolution of Committees
|
74
|
||
12.2
|
Substantial Consummation
|
75
|
||
12.3
|
Effectuating Documents and Further Transactions
|
75
|
||
12.4
|
Exemption from Transfer Taxes
|
75
|
||
12.5
|
Release
|
76
|
||
12.6
|
Exculpation
|
76
|
||
12.7
|
Post-Confirmation Date Fees and Expenses
|
77
|
||
a.
|
Fees and Expenses of Professionals
|
77
|
||
b.
|
Fees and Expenses of GUC Trust Administrator, Asbestos Trust Administrator, Environmental Response Trust Administrative Trustee, and Avoidance Action Trust Administrator
|
78
|
||
12.8
|
Payment of Statutory Fees
|
78
|
||
12.9
|
Modification of Plan
|
78
|
||
12.10
|
Revocation or Withdrawal of Plan
|
78
|
||
12.11
|
Courts of Competent Jurisdiction
|
79
|
||
12.12
|
Severability
|
79
|
||
12.13
|
Governing Law
|
79
|
||
12.14
|
Exhibits
|
79
|
12.15
|
Successors and Assigns
|
79
|
||
12.16
|
Time
|
79
|
||
12.17
|
Notices
|
80
|
UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF NEW YORK
|
||
x | ||
In re | : | Chapter 11 Case No. |
: | ||
MOTORS LIQUIDATION COMPANY, et al., | : | 09-50026 (REG) |
f/k/a General Motors Corp., et al. | : | |
: | ||
: | (Jointly Administered) | |
Debtors. | : | |
x |
Class
|
Designation
|
Impairment
|
Entitled
to Vote
|
Class 1
|
Secured Claims
|
Unimpaired
|
No (deemed to accept)
|
Class 2
|
Priority Non-Tax Claims
|
Unimpaired
|
No (deemed to accept)
|
Class 3
|
General Unsecured Claims
|
Impaired
|
Yes
|
Class 4
|
Property Environmental Claims
|
Unimpaired
|
No (deemed to accept)
|
Class 5
|
Asbestos Personal Injury Claims
|
Impaired
|
Yes
|
Class 6
|
Equity Interests in MLC
|
Impaired
|
No (deemed to reject)
|
Respectfully submitted, | |||
Motors Liquidation Company | |||
|
By:
|
/s/ Ted Stenger | |
Name: Ted Stenger | |||
Title: Executive Vice President | |||
MLC of Harlem, Inc.
MLCS, LLC
MLCS Distribution Corporation
Remediation and Liability Management Company, Inc.
Environmental Corporate Remediation Company, Inc.
|
||||
By: Motors Liquidation Company, as agent for each of the foregoing entities |
|
By:
|
/s/ Ted Stenger | |
Name: Ted Stenger | |||
Title: Executive Vice President | |||
DI = (
|
AI
--------
CI
|
) x (I)
|
and
|
GI = (GO – HO)
|
|
Where—
|
|
DI
|
is the initial distribution that the holder of an Initial Allowed General Unsecured Claim will be entitled to receive (rounded in the case of New GM Common Stock and each series of New GM Warrants in accordance with Section 5.6(a) hereof);
|
|
AI
|
is the amount of the Initial Allowed General Unsecured Claim;
|
|
CI
|
is the Current Total Amount as of the Initial Distribution Record Date; and
|
|
S GI
|
is all amounts of all assets, by respective asset type, available for distribution as of the Effective Date, net of deductions
|
|
GI
|
is the amount of the respective asset type available for distribution as of the Effective Date, net of deductions;
|
|
GO
|
is all amounts of all assets, by respective asset type, available for distribution (whether by the GUC Trust Administrator or directly by the Debtors) as of the Effective Date (consisting of a total of 150 million shares of New GM Common Stock and 136,363,635 New GM Warrants in each of the two series); and
|
|
HO
|
is the sum of the Protective Holdback, the Additional Holdback, the Reporting Transfer Holdback and the Taxes on Distribution Holdback, each allocated to the respective asset type, and the amount of GUC Trust Distributable Assets of the respective asset type sold or to be sold by the Debtors pursuant to Section 2.3(e) hereof as of the Initial Distribution Record Date; 1
|
1
|
See Exhibit A-1 for an illustrative calculation of the distribution to holders of Initial Allowed General Unsecured Claims. For the avoidance of doubt, Section 5.2 of this Trust Agreement shall govern in the event of any inconsistencies with Exhibit A-1.
|
|
Where—
|
|
DU
|
is the distribution of Excess GUC Trust Distributable Assets that a holder of Units will be entitled to receive (with Cash payable in lieu of fractional shares of New GM Common Stock and fractional New GM Warrants in accordance with Section 5.6(b) hereof);
|
|
UH
|
is the number of Units held by the holder;
|
|
UO
|
is the total number of Units outstanding (including Units distributed, or to be distributed to holders of Resolved Allowed General Unsecured Claims during the current calendar quarter;
|
|
X
|
is all amounts, by asset type, of the Excess GUC Trust Distributable Assets as of the last day of the prior calendar quarter;
|
|
GX
|
is the amount of the Excess GUC Trust Distributable Assets for each asset type, respectively, as of the last day of the prior calendar quarter;
|
|
GE
|
is the amount of the respective asset type available for distribution (whether by the GUC Trust Administrator or directly by the Debtors) as of the Effective Date (consisting of a total of 150 million shares of New GM Common Stock and 136,363,635 New GM Warrants in each of the two series) plus, in the case of New GM Common Stock, the amount of Additional Shares received by the Debtors or the GUC Trust, as applicable, as of the prior Excess Distribution Record Date;
|
|
T
|
is the Total Allowed Amount as of the last day of the prior calendar quarter;
|
|
C
|
is the Current Total Amount as of the last day of the prior calendar quarter;
|
|
S
|
is the number of Additional Shares received by the Debtors or the GUC Trust, as applicable, since the prior Excess Distribution Record Date;
|
|
L
|
is the aggregate amount of all (i) Disputed General Unsecured Claims disallowed during the preceding calendar quarter (or, in the case of a calculation taking place during the second calendar quarter, since the Initial Distribution Record Date), (ii) Unresolved Term Loan Avoidance Action Claims to the extent resolved (including by way of settlement) in favor of the respective defendants during the preceding calendar quarter (or, in the case of a calculation taking place during the second calendar quarter, since the Initial Distribution Record Date); and (iii) all Unresolved Other Avoidance Action Claims to the extent resolved (including by way of settlement) in favor of the respective defendants during the preceding calendar quarter (or, in the case of a calculation taking place during the second calendar quarter, since the Initial Distribution Record Date); and
|
|
H
|
is the sum of the Protective Holdback, the Additional Holdback, the Reporting Transfer Holdback and the Taxes on Distribution Holdback, each allocated to the respective asset type, the amount of GUC Trust Distributable Assets of the respective asset type sold or to be sold by the Debtors pursuant to Section 2.3(e) hereof, and the amount of any GUC Trust Distributable Assets of the respective asset type sold or pledged pursuant to Section 6.1 as of the last day of the preceding calendar quarter.2
|
2
|
See Exhibit A-3 for an illustrative calculation of a distribution to holders of Units. For the avoidance of doubt, Section 5.4 of this Trust Agreement shall govern in the event of inconsistencies with Exhibit A-3.
|
Amounts
|
Reporting Times or Periods
|
|
A.
|
Number of Units Outstanding
|
As of the end of (i) the relevant calendar quarter or calendar year; (ii) the next preceding calendar quarter (or, in the case of a report for the first calendar quarter, the Effective Date) and (iii) the next preceding calendar year.
|
B.
|
GUC Trust Common Stock Assets
GUC Trust Warrant Assets
GUC Trust Dividend Assets
other GUC Trust Distributable Cash
(whether held by MLC or the GUC Trust)
|
As of the end of (i) the relevant calendar quarter or calendar year; (ii) the next preceding calendar quarter (or, in the case of a report for the first calendar quarter, the Effective Date) and (iii) the next preceding calendar year.
|
C.
|
Total Allowed Amount
Maximum Amount of all Disputed General Unsecured Claims (in the
|
As of the end of (i) the relevant calendar quarter or calendar year; (ii) the next preceding calendar quarter (or, in the case of a report for the first calendar quarter, the Effective Date) and (iii) the
|
aggregate)
Maximum Amount of all Unresolved Term Loan Avoidance Action Claims (in the aggregate)
Maximum Amount of all Unresolved Other Avoidance Action Claims (in the
aggregate)
Aggregate Maximum Amount
Current Total Amount
|
next preceding calendar year. | |
D.
|
Protective Holdback
Additional Holdback
Reporting and Transfer Holdback
Taxes on Distribution Holdback
|
As of the end of (i) the relevant calendar quarter or calendar year; (ii) the next preceding calendar quarter (or, in the case of a report for the first calendar quarter, the Effective Date) and (iii) the next preceding calendar year.
|
E.
|
Resolved Allowed General Unsecured Claims allowed
Disputed General Unsecured Claims
disallowed
Unresolved Term Loan Avoidance Action Claims resolved (including by way of settlement) in favor of the respective defendants
Other Avoidance Action Claims, resolved (including by way of settlement) in favor of the respective defendants
|
During (i) the relevant calendar quarter or calendar year; and (ii) the period beginning on the Initial Distribution Record Date and ending on the last day of the relevant calendar quarter or calendar year.
|
F.
|
Distributions of in respect of Resolved Allowed General Unsecured Claims of—
GUC Common Stock Assets
GUC Trust Warrant Assets
GUC Trust Dividend Assets
other GUC Trust Distributable Cash
|
During (i) the relevant calendar quarter or calendar year; and (ii) the period beginning on the Effective Date and ending on the last day of the relevant calendar quarter or calendar year.
|
G.
|
Distributions in respect of Units of—
GUC Common Stock Assets
GUC Trust Warrant Assets
|
During (i) the relevant calendar quarter or calendar year; and (ii) the period beginning on the Effective Date and ending on the last day of the relevant calendar quarter or calendar year.
|
GUC Trust Dividend Assets
other GUC Trust Distributable Cash
|
||
H.
|
Excess GUC Trust Distributable Assets reserved for distribution to holders of Units (but not yet distributed or withheld from distribution) of—
GUC Common Stock Assets
GUC Trust Warrant Assets
GUC Trust Dividend Assets
other GUC Trust Distributable Cash
(whether held by MLC or the GUC Trust)
|
As of the end the relevant calendar quarter or calendar year.
|
I.
|
Additional Shares received
(whether held by MLC or the GUC Trust)
|
During (i) the relevant calendar quarter or calendar year; and (ii) the period beginning on the Effective Date and ending on the last day of the relevant calendar quarter or calendar year.
|
(C)
|
if to any GUC Trust Beneficiary, in the case of a holder of an Allowed General Unsecured Claim, to the last known address of such GUC Trust Beneficiary according to the Debtors’ Schedules or such GUC Trust Beneficiary’s proof of claim, and, in the case of holder of Units (i) if and for so long as the Units are represented by Global Unit Certificate(s) held through DTC, in accordance with the practices and procedures of DTC; and otherwise (ii) to such address as appears on the books and records of the GUC Trust Administrator, or such other address as may be designated from time to time by notice given in accordance with the provisions of this Section 13.6.
|
(1)
|
U.S. Treasury
|
(2)
|
EDC
|
Motors Liquidation Company | ||||
|
By:
|
/s/ Ted Stenger | ||
Name: | Ted Stenger | |||
Title: | Executive Vice President | |||
MLC of Harlem, Inc.
|
||||
|
By:
|
/s/ Ted Stenger | ||
Name: | Ted Stenger | |||
Title: | Executive Vice President | |||
MLCS, LLC | ||||
|
By:
|
/s/ Ted Stenger | ||
Name: | Ted Stenger | |||
Title: | Executive Vice President | |||
MLCS Distribution Corporation | ||||
|
By:
|
/s/ Ted Stenger | ||
Name: | Ted Stenger | |||
Title: | Executive Vice President | |||
Remediation and Liability Management Company, Inc. | ||||
|
By:
|
/s/ Ted Stenger | ||
Name: | Ted Stenger | |||
Title: | Executive Vice President | |||
Environmental Corporate Remediation Company, Inc. | ||||
|
By:
|
/s/ Ted Stenger | ||
Name: | Ted Stenger | |||
Title: | Executive Vice President | |||
Wilmington Trust Company, as
GUC Trust Administrator and trustee
|
||||
|
By:
|
/s/ Ted Stenger | ||
Name: | David A. Vanaskey, Jr. | |||
Title: | Vice President | |||
– and –
|
FTI Consulting, Inc., as GUC Trust Monitor
|
||||
|
By:
|
/s/ Ted Stenger | ||
Name: | Anna Phillips | |||
Title: | Senior Managing Director |
Number of shares of New GM Common Stock available for distribution on the Effective Date (GI):2
|
150,000,000
|
Number of New GM $10.00 Warrants available for distribution on the Effective Date (GI):
|
136,363,636
|
Number of New GM $18.33 Warrants available for distribution on the Effective Date (GI):
|
136,363,636
|
Total Allowed Amount (sum of Initial Allowed General Unsecured Claims) as of the Initial Distribution Record Date:
|
$32,000,000,000
|
Aggregate Maximum Amount on the Initial Distribution Record Date (sum of the Maximum Amounts of all Disputed General Unsecured Claims, Unresolved Term Loan Avoidance Action Claims and Unresolved Other Avoidance Action Claims):
|
$10,000,000,000
|
Current Total Amount (sum of the Initial General Unsecured Claims and Aggregate Maximum Amount) as of the Initial Distribution Record Date (CI):
|
$42,000,000,000
|
Unit Issuance Ratio:
|
1 Unit/$1,000
of Allowed Claim
|
Shares of New GM Common Stock
|
$1,000,000 ÷ $42,000,000,000 x 150,000,000 = 3,571 shares
|
New GM $10.00 Warrants
|
$1,000,000 ÷ $42,000,000,000 x 136,363,636 = warrants to acquire 3,247 shares
|
1
|
This illustration is purely hypothetical, uses hypothetical numbers for the amounts of allowed/disputed claims, and is not representative of the actual dollar amounts of claims in any respect.
|
New GM $18.33 Warrants
|
$1,000,000 ÷ $42,000,000,000 x 136,363,636 = warrants to acquire 3,247 shares
|
Units
|
1,000 Units
|
Total Amount of Resolved Allowed General Unsecured Claims:
Amount of Resolved Allowed General Unsecured Claims as of the Initial Distribution Record Date:
Amount of Resolved Allowed General Unsecured Claims which are Allowed since the Initial Distribution Record Date:
Total:
|
$0
$2,000,000,000
$2,000,000,000
|
Amount of General Unsecured Claims disallowed since the Initial Distribution Record Date:
|
$500,000,000
|
Aggregate Maximum Amount (sum of the Maximum Amounts of all Disputed General Unsecured Claims, Unresolved Term Loan Avoidance Action Claims and Unresolved Other Avoidance Action Claims):
|
$7,500,000,000
|
Total Allowed Amount (sum of amounts all Initial Allowed General Unsecured Claims and all Resolved General Unsecured Claims):
|
$34,000,000,000
|
Current Total Amount (C) (Sum of the Total Allowed Amount and Aggregate Maximum Amount):
|
$41,500,000,000
|
|
1 This illustration is purely hypothetical, uses hypothetical numbers for the amounts of allowed/disputed claims, and is not representative of the actual dollar amounts of claims in any respect.
|
Corresponding to the Distribution to the Holders of
Initial Allowed Claims
|
Corresponding to the First Quarter Distribution to
Holders of Units*
|
Total
|
|
Shares of New GM Common Stock
|
3,571 shares
|
43 shares
|
3,614 shares
|
New GM $10.00 Warrants
|
warrants to acquire 3,247 shares
|
warrants to acquire 39 shares
|
warrants to acquire 3,286 shares
|
New GM $18.33 Warrants
|
warrants to acquire 3,247 shares
|
warrants to acquire 39 shares
|
warrants to acquire 3,286 shares
|
Units
|
1,000 Units
|
|
* See Exhibit A-3 for a calculation of the first quarter distribution of Excess GUC Distributable Assets to holders of Units.
|
Total Amount of Resolved Allowed General Unsecured Claims:
Amount of Resolved Allowed General Unsecured Claims as of the end of the prior calendar quarter:
Amount of Resolved Allowed General Unsecured Claims during the calendar quarter:
Total:
|
$2,000,000,000
$1,000,000,000
$3,000,000,000
|
Amount of General Unsecured Claims disallowed as of the end of the calendar quarter:
Amount of Claims disallowed as of the end of the prior calendar quarter:
Amount of Claims disallowed during the calendar quarter (L):
Total
|
$500,000,000
$700,000,000
$1,200,000,000
|
Aggregate Maximum Amount at the time:
|
$5,800,000,000
|
Total Allowed Amount (sum of Initial Allowed General Unsecured Claims and Resolved Allowed General Unsecured Claims) (T)
|
$35,000,000,000
|
Current Total Amount (C):
|
$40,800,000,000
|
Corresponding to the Distribution to the Holders of
Initial Allowed Claims
|
Corresponding to the First Quarter Distribution to
Holders of Units*
|
Corresponding to the Second Quarter Distribution to
Holders of Units*
|
Total
|
|
Shares of New GM Common Stock
|
3,571 shares
|
43 shares
|
62 shares
|
3,676 shares
|
New GM $10.00 Warrants
|
warrants to acquire 3,247 shares
|
warrants to acquire 39 shares
|
warrants to acquire 56 shares
|
warrants to acquire 3,342 shares
|
New GM $18.33 Warrants
|
warrants to acquire 3,247 shares
|
warrants to acquire 39 shares
|
warrants to acquire 56 shares
|
warrants to acquire 3,342 shares
|
Units
|
1,000 Units
|
|
* See Exhibit A-3 for a calculation of the first and second quarter distributions of Excess GUC Distributable Assets to holders of Units.
|
Number of shares of New GM Common Stock available for distribution on the Effective Date (GI): 2
|
150,000,000
|
Number of New GM $10.00 Warrants available for distribution on the Effective Date (GI):
|
136,363,636
|
Number of New GM $18.33 Warrants available for distribution on the Effective Date (GI):
|
136,363,636
|
Total Allowed Amount as of the Initial Distribution Record Date(sum of Initial Allowed General Unsecured Claims):
|
$32,000,000,000
|
Aggregate Maximum Amount (sum of Maximum amounts of Disputed General Unsecured Claims, Unresolved Term Loan Avoidance Action Claims, and Unresolved Other Avoidance Action Claims):
|
$10,000,000,000
|
Current Total Amount (sum of Total Allowed Amount and Aggregate Maximum Amount):
|
$42,000,000,000
|
Unit Issuance Ratio:
|
1 Unit/$1,000
of Allowed Claim
|
Number of Units issuable:
|
42,000,000
|
1 This illustration is purely hypothetical, uses hypothetical numbers for the amounts of allowed/disputed claims, and is not representative of the actual dollar amounts of claims in any respect.
|
Total Amount of Resolved Allowed General Unsecured Claims:
Amount of Resolved Allowed General Unsecured Claims as of the Initial Distribution Record Date:
Amount of Resolved Allowed General Unsecured Claims since the Initial Distribution Record Date:
Total
|
$0
$2,000,000,000
$2,000,000,000
|
Amount of General Unsecured Claims disallowed since the Initial Distribution Record Date (L):
|
$500,000,000
|
Aggregate Maximum Amount (sum of Maximum amounts of Disputed General Unsecured Claims, Unresolved Term Loan Avoidance Action Claims, and Unresolved Other Avoidance Action Claims):
|
$7,500,000,000
|
Total Allowed Amount (sum of Initial Allowed General Unsecured Claims and Resolved Allowed General Unsecured Claims) (T):
|
$34,000,000,000
|
Current Total Amount (C):
|
$41,500,000,000
|
Number of Units outstanding as of Effective Date
|
32,000,000
|
UO (total number of Units outstanding, including Units distributed, or to be distributed to holders of Resolved Allowed General Unsecured Claims during the calendar quarter)
|
34,000,000
|
H (Protective Holdback and other deductions)3
|
0
|
GX shares = (GI – H) * [T/C – T/(C +L)]
GX warrants = (GI – H) * [T/C – T/(C +L)]
|
1,462,995
1,329,995
|
Shares of New GM Common Stock
|
In respect of 34,000,000 Units:
1,462,995 shares:
On a 1,000 Unit basis:
1,000 ÷ 34,000,000 x 1,462,995 = 43 shares
|
New GM $10.00 Warrants
|
In respect of 34,000,000 Units:
warrants to acquire 1,329,995 shares
On a 1,000 Unit basis:
1,000 ÷ 34,000,000 x 1,329,995= warrants to acquire 39 shares
|
New GM $18.33 Warrants
|
In respect of 34,000,000 Units:
warrants to acquire 1,329,995 shares
On a 1,000 Unit basis:
1,000 ÷ 34,000,000 x 1,329,995= warrants to acquire 39 shares
|
Total Amount of Resolved Allowed General Unsecured Claims as of the end of the calendar quarter:
Amount of Resolved Allowed General Unsecured Claims as of the end of the prior calendar quarter:
Amount of Resolved Allowed General Unsecured Claims during the calendar quarter:
Total
|
$2,000,000,000
$1,000,000,000
$3,000,000,000
|
Amount of General Unsecured Claims disallowed as of the end of the calendar quarter:
Amount of Claims disallowed as of the end of the prior calendar quarter:
Amount of Claims disallowed during the calendar quarter (L):
Total
|
$500,000,000
$700,000,000
$1,200,000,000
|
Aggregate Maximum Amount at the time:
|
$5,800,000,000
|
Total Allowed Amount (sum of Initial Allowed General Unsecured Claims and Resolved Allowed General Unsecured Claims) (T)
|
$35,000,000,000
|
Current Total Amount (C):
|
$40,800,000,000
|
Total number of Units outstanding at the end of the prior quarter
|
34,000,000
|
UO (total number of Units outstanding, including Units distributed, or to be distributed to holders of Resolved Allowed General Unsecured Claims during the calendar quarter)
|
35,000,000
|
H (Protective Holdback and other deductions)4
|
0
|
GX shares = (GI – H) * [T/C – T/(C +L)]
GX warrants = (GI – H) * [T/C – T/(C +L)]
|
2,170,446
1,973,133
|
Shares of New GM Common Stock
|
In respect of 35,000,000 Units:
2,170,446 shares
On a 1,000 Unit basis:
1,000 ÷ 35,000,000 x 2,170,446 = 62 shares
|
New GM $10.00 Warrants
|
In respect of 35,000,000 Units:
warrants to acquire 1,973,133 shares
On a 1,000 Unit basis:
1,000 ÷ 35,000,000 x 1,973,133= warrants to acquire 56 shares
|
New GM $18.33 Warrants
|
In respect of 35,000,000 Units:
warrants to acquire 1,973,133 shares
On a 1,000 Unit basis:
1,000 ÷ 35,000,000 x 1,973,133= warrants to acquire 56 shares
|
1
|
On March 29, 2011, the United States Bankruptcy Court for the Southern District of New York entered an order confirming the Second Amended Joint Chapter 11 Plan dated March 18, 2011, of Motors Liquidation Company et al (f/k/a General Motors Corporation).
|
2
|
If the Plan does not become effective and/or the other conditions described in the order confirming the Plan are not satisfied, you may not be entitled to receive all or a portion of the stock, warrants and units described in this letter.
|
|
You must designate a broker, bank or other financial institution with which you maintain a securities account to receive your General Motors Company common stock and warrants and your trust units on your behalf. You will not receive any distribution from the Motors Liquidation Company GUC Trust unless and until you designate a broker in accordance with the instructions below.
|
•M&T Securities, Inc.
(877) 405-1791
|
•Morgan Stanley Smith Barney
(800) 780-0718
|
This form must be completed and returned to the Trust Administrator with a completed Form W-9 or Form
W-8BEN (or other applicable Form W-8) via facsimile to (610) 296-1935 or via email to mlcguctrust@wilmingtontrust.com.
|
In re:
|
) | |
) |
Case No. 09-50026 (REG)
|
|
MOTORS LIQUIDATION COMPANY, et al.,
|
) |
Chapter 11
|
f/k/a General Motors Corp., et al.,
|
) |
(Jointly Administered)
|
) | ||
Debtors. | ) |
I.
|
DEFINITIONS
|
6
|
||
II.
|
JURISDICTION
|
11
|
||
III.
|
PARTIES BOUND; SUCCESSION AND ASSIGNMENT
|
11
|
||
IV.
|
PURPOSES AND FORMATION OF THE ENVIRONMENTAL RESPONSE TRUST
|
11
|
||
Funding Adjustments
|
17
|
|||
Appointment and Duties of the Administrative Trustee
|
22
|
|||
Environmental Response Trust Administration and Accounts
|
24
|
|||
a.
|
Cleanup and Redevelopment Managers
|
24
|
||
b.
|
Approval of Annual Cleanup Budgets and Emergency
|
|||
Environmental Actions
|
26
|
|||
c.
|
Administrative Funding Account
|
29
|
||
d.
|
Cushion Funding Account
|
32
|
||
e.
|
Minimum Estimated Property Funding Accounts and Reductions
|
35
|
||
f.
|
Reserve Property Funding Accounts and Reductions
|
36
|
||
g.
|
Transfer of Excess Funds in Property Funding Accounts
|
37
|
||
.
|
GM-IFG Syracuse Site
|
37
|
||
Sale or Transfer of Environmental Response Trust Property
|
38
|
|||
Notice of the Sale
|
38
|
|||
Criteria for the Sale
|
38
|
|||
Proceeds from the Sale
|
39
|
|||
Cleanup as Part of the Sale
|
39
|
|||
GMNA Car – Wilmington Site
|
40
|
|||
Protections from Future Environmental Liability
|
41
|
|||
Coordination of Redevelopment and the Environmental Action
|
43
|
|||
Sales of Property After Execution of Settlement Agreement But Prior to the Effective Date
|
44
|
|||
Audits of the Environmental Response Trust
|
45
|
|||
Completion of Environmental Actions
|
45
|
|||
Access to Property
|
46
|
|||
Existing Financial Assurance in Massachusetts
|
46
|
|||
Existing Financial Assurance in Illinois
|
47
|
|||
Existing Financial Assurance in Michigan
|
47
|
|||
Disposition of Estate Assets Upon Termination of Trust
|
48
|
|||
Miscellaneous Provisions
|
49
|
|||
V.
|
ALTERNATIVE DISPUTE RESOLUTION
|
53
|
||
VI.
|
OUTSTANDING OBLIGATIONS
|
53
|
||
VII.
|
COVENANTS NOT TO SUE
|
55
|
||
Financial Assurance
|
56
|
|||
VIII.
|
RESERVATION OF RIGHTS AND REGULATORY AUTHORITY
|
59
|
||
IX.
|
CONTRIBUTION PROTECTION
|
63
|
||
X.
|
PUBLIC COMMENT
|
64
|
||
XI.
|
JUDICIAL APPROVAL
|
65
|
||
XII.
|
PLAN
|
65
|
||
XIII.
|
RETENTION OF JURISDICTION
|
65
|
||
XIV.
|
EFFECTIVENESS OF SETTLEMENT AGREEMENT
|
66
|
||
XV.
|
SIGNATORIES/SERVICES
|
66
|
·
|
Prospective Purchaser Agreements or equivalent agreements under applicable State law (PPAs);
|
·
|
Bona Fide Prospective Purchaser Work Agreements or equivalent agreements under applicable State law (BFPP Work Agreements); or
|
·
|
Comfort/Status Letters or equivalent letter under applicable State practice.
|
|
1.
|
Undertake efforts to be informed about and knowledgeable of the
environmental condition of the Property.
|
|
2.
|
Comply with or institute land use restrictions and not impede the effectiveness or integrity of the ongoing or completed cleanup and institutional controls;
|
|
3.
|
Take reasonable steps to stop any continuing release, prevent any threatened future release and prevent or limit any human, environmental, or natural exposure to any previously released Hazardous Substances. This will be a site-specific, fact-based inquiry;
|
|
4.
|
Provide cooperation, assistance and access to governmental agencies and their representatives; and
|
|
5.
|
Comply with information requests and administrative subpoenas and provide legally required notices.
|
(i)
|
any action to enforce their rights under this Settlement Agreement;
|
(ii)
|
any general unsecured claim with respect to the release of Hazardous Substances into Lower Ley Creek, the Lake Bottom Subsite, or the Salina Landfill Subsite, which are part of the Onondaga Lake Superfund Site in Onondaga County, New York or the Old Ley Creek Channel in Onondaga County, New York. “Lower Ley Creek” for purposes of this Settlement Agreement shall mean the entire portion of Ley Creek which is downstream from the Route 11 Bridge;
|
(iii)
|
any general unsecured claim arising from costs incurred by a Lead Agency or Support Agency for Environmental Actions with respect to a Property prior to June 1, 2009, with respect to MLC and prior to October 9, 2009, with respect to REALM and ENCORE;
|
(iv)
|
any claim or cause of action for response costs and injunctive relief under CERCLA Sections 106 and 107, RCRA Sections 3008, 7002 and 7003 or State environmental statutes for future acts taken by the Debtors after the Effective Date that create liability under CERCLA, RCRA, or state law;
|
(v)
|
criminal liability;
|
(vi)
|
any general unsecured claim arising from damages or injury to, destruction of, or loss of natural resources, and for the costs of any natural resource damage assessments;
|
(vii)
|
all rights with respect to any site that is not a Property, other than claims or causes of action for migration of Hazardous Substances emanating from a Property; and
|
(viii)
|
all rights with respect to enforcement of state laws related to removal, collection or recovery of mercury-containing switches from end-of-life vehicles.
|
/s/ ROBERT G. DREHER | /s/ Natalie N. Kuehler | |
ROBERT G. DREHER
Acting Assistant Attorney General
Environment and Natural Resources
Division
U.S. Department of Justice
|
PREET BHARARA
United States Attorney
Southern District of New York
By: David S. Jones
Natalie N. Kuehler
Assistant U.S. Attorneys
|
Date:
|
10/15/10 |
Date:
|
October 19, 2010 |
/s/ Alan S. Tenenbaum | ||
Alan S. Tenenbaum
National Bankruptcy Coordinator
Patrick Casey
Senior Counsel
Environment and Natural Resources Division
Environmental Enforcement Section
U.S. Department of Justice
|
Date:
|
10/15/10 |
/s/ CYNTHIA GILES | ||
CYNTHIA GILES
Assistant Administrator
Office of Enforcement and Compliance
Assurance
U.S. Environmental Protection Agency
|
Date:
|
10/9/10 |
Date:
|
October 19, 2010 | /s/ Ted Stenger | |
Ted Stenger
Executive Vice President
Motors Liquidation Company, as agent for each of the foregoing entities
500 Renaissance Center, Suite 1400
Detroit, MI 48243
Tel.: (313) 486-4044
Fax: (313) 486-4259
Email: tstenger@alixpartners.com
|
Date:
|
October 19, 2010 | /s/ James M. Redwine | |
James M. Redwine
Vice President of Environmental Affairs
Motors Liquidation Company, as agent for each of the foregoing entities
|
Date:
|
October 19, 2010 | /s/ David R. Berz | |
David R. Berz
Weil, Gotshal & Manges LLP
Attorneys for Debtors and Debtors in Possession
1300 Eye Street, NW, Suite 900
Washington, D.C. 20005
Tel.: (202) 682-7000
Fax: (202) 857-0939
Email: david.berz@weil.coms
|
EPLET, LLC in its Representative Capacity as the Environmental Response Administrative Trustee of The Environmental Response Trust
|
|||
Date:
|
October 19, 2010 |
By
|
/ /s/ Elliott P. Laws |
Name: Elliott P. Laws
Title: Managing Member
|
Date:
|
10/12/10 |
By
|
/s/ Michael O. Hill |
Michael O. Hill
Chief Operating Officer and General Counsel
The Environmental Response Trust
|
Date:
|
12 October 2010 | /s/ Collin P. O’Mara | |
Collin P. O’Mara, Secretary
Delaware Department of Natural Resources
and Environmental Control
|
Date:
|
10/12/10 |
/s/ Robert S. Kuehl
|
|
Robert S. Kuehl
Deputy Attorney General
Delaware Department of Justice
|
FOR THE STATE OF ILLINOIS
LISA MADIGAN, Attorney General of the State of Illinois
MATTHEW J. DUNN, Chief
Environmental Enforcement/Asbestos Litigation Division
|
|||
Date:
|
10-18-10 | /s/ THOMAS E. DAVIS | |
THOMAS E. DAVIS, Chief
Environmental Bureau
Assistant Attorney General
500 South Second Street
Springfield, IL 62706
|
FOR THE ILLINOIS ENVIRONMENTAL PROTECTION AGENCY
|
|||
Date:
|
/s/ JOHN J. KIM | ||
JOHN J. KIM
Chief Legal Counsel
|
Indiana Department of
Environmental Management
|
Gregory F. Zoeller,
Attorney General of Indiana
Atty. No. 1958-98
|
|||
By:
|
/s/ Thomas W. Easterly |
By:
|
/s/ Patricia Orloff Erdmann | |
Thomas W. Easterly
Commissioner
|
Patricia Orloff Erdmann
Chief Counsel for Litigation
Atty. No. 17664-49A
|
By:
|
/s/ Bruce H Palin |
By:
|
/s/ Timothy J. Junk | |
Bruce H Palin,
Assistant Commissioner
Office of Land Quality
Ind. Dept. of Environmental Mgmt
100 North Senate Avenue
MC 50-01, ICGN 1301
Indianapolis, IN 46204
|
Timothy J. Junk
Deputy Attorney General
Atty. No. 5587-02
Office of the Attorney General
Indiana Government Center South, Fifth Floor
302 West Washington Street
Indianapolis, IN 46204
|
Date:
|
Date:
|
Date:
|
/s/ RODERICK L. BREMBY | ||
RODERICK L. BREMBY
Secretary
Kansas Department of
Health and Environment
|
Date:
|
/s/ | ||
Michael A. Cox
Attorney General
Celeste R. Gill (P52484)
Assistant Attorney General
Environment, Natural Resources and
Agriculture Division
6th Floor, G. Mennen Williams Building
525 West Ottawa Street
P.O. Box 30755
Lansing, MI 48909
Tel.: (517) 373-7540
Fax: (517) 373-1610
gillc1@michigan.gov
Attorneys for the Michigan Department
of Natural Resources and Environment
|
Date:
|
/s/ | ||
CHRIS KOSTER
Attorney General for the State of Missouri
JOHN K. McMANUS
Chief Counsel
Agriculture and Environment Division
P.O. Box 899
Jefferson City, Missouri 65102
Tel.: (573) 751-8370
Fax: (573) 751-8796
Email: jack.mcmanus@ago.mo.gov
|
Date:
|
/s/ | ||
Leanne Tippett Mosby
Director
Division of Environmental Quality
Missouri Department of Natural Resources
P.O. Box 176
Jefferson City, Missouri 65102
|
Date:
|
/s/ | ||
PAULA T. DOW
Attorney General for the State of New Jersey
|
|||
By:
|
Richard F. Engel
Deputy Attorney General
Richard J. Hughes Justice Complex
25 Market Street
P.O. Box 093
Trenton, New Jersey 08625-0093
Tel.: (609) 984-4863
Fax: (609) 341-5030
|
ANDREW M. CUOMO
Attorney General
|
|||
Date:
|
/s/ | ||
By:
|
Maureen Leary
Assistant Attorney General
Chief, Toxics Section
NYS Department of Law
Environmental Protection Bureau
The Capitol
Albany, New York 12224-0341
Tel.: (518) 474-7154
Fax: (518) 473-2534
maureen.leary@ag.ny.gov
|
Date:
|
/s/ | ||
RICHARD CORDRAY
Attorney General for the State of Ohio
|
|||
By:
|
Michelle T. Sutter
Principal Assistant Attorney General
30 E. Broad Street, 26th Floor
Columbus, Ohio 43215
Tel.: (614) 752-4316
Fax: (866) 483-1104
Email: michelle.sutter@ohioattorneygeneral.gov
|
KENNETH T. CUCCINELLI, II
ATTORNEY GENERAL
|
|||
Date:
|
By:
|
/s/ | |
Kerri L. Nicholas, VSB # 47230
Assistant Attorney General
Environmental Section
Virginia Office of the Attorney General
900 East Main Street
Richmond, Virginia 23219
(804) 371-8721
knicholas@oag.state.va.us
|
MATTHEW J. FRANK
Secretary
|
|||
Date:
|
/s/ | ||
ALLEN K. SHEA
Deputy Secretary
Wisconsin Department of Natural Resources
|
|||
Approved as to form:
|
/s/ | ||
J.B. VAN HOLLEN
Attorney General
|
Date:
|
/s/ | ||
ANNE C. MURPHY
Assistant Attorney General
State Bar # 1031600
Attorneys for the State of Wisconsin
|
Date:
|
/s/ | ||
Cheryl Sonnier Nolan
Assistant Secretary
Office of Environmental Services
Louisiana Department of Environmental Quality
|
MASSACHUSETTS DEPARTMENT OF
ENVIRONMENTAL PROTECTION
By its attorney,
|
|||
MARTHA COAKLEY,
ATTORNEY GENERAL
|
|||
Date:
|
By:
|
/s/ | |
Carol Iancu, MA BBO # 635626
Assistant Attorney General
Environmental Protection Division
Massachusetts Office of the Attorney General
One Ashburton Place, 18th Floor
Boston, MA 02108
(617) 963-2428
carol.iancu@state.ma.us
|
Date:
|
/s/ | ||
Susan Shinkman
Chief Counsel
Office of Chief Counsel
Rachel Carson State Office Building
400 Market Street
Harrisburg, Pennsylvania 17101-2301
|
Date:
|
/s/ | ||
McNAMEE, LOCHNER, TITUS
& WILLIAMS, P.C.
John J. Privitera, Esq.
Jacob F. Lamme, Esq.
677 Broadway
Albany, New York 12207
Tel.: (518) 447-3200
Fax: (518) 426-4260
|
ARTICLE 1 DEFINITIONS AND PRINCIPLES OF CONSTRUCTION
|
2
|
|
1.1
|
Definitions
|
2
|
1.2
|
Principles of Construction
|
9
|
ARTICLE 2 ESTABLISHMENT OF THE ENVIRONMENTAL RESPONSE TRUST
|
9
|
|
2.1
|
Name
|
9
|
2.2
|
Establishment of Environmental Response Trust
|
9
|
2.3
|
Purpose of the Environmental Response Trust
|
10
|
2.4
|
Transfer of Ownership
|
10
|
2.5
|
Transfer of Funds and Creation of Environmental Response Trust Accounts
|
11
|
2.6
|
Holder of Environmental Response Trust Assets
|
12
|
2.7
|
Management of Environmental Response Trust Assets
|
12
|
2.8
|
Investment and Safekeeping of Environmental Response Trust Assets
|
13
|
2.9
|
Insurance Policy to Cover Cost Overruns with Respect to Future Response Actions
|
14
|
2.10
|
Access and Institutional Controls
|
14
|
2.11
|
Internal Accounting
|
15
|
2.12
|
Inspection of Book
|
15
|
2.13
|
Independent Audits
|
15
|
2.14
|
Termination
|
16
|
2.15
|
Property Disposition
|
17
|
ARTICLE 3 WORK AND DISTRIBUTIONS
|
17
|
|
3.1
|
Budgets for and Payments by the Environmental Response Trust
|
17
|
3.2
|
Manner of Payment
|
19
|
3.3
|
Unclaimed Distributions
|
20
|
ARTICLE 4 THE ENVIRONMENTAL RESPONSE TRUST ADMINISTRATIVE TRUSTEE
|
20
|
|
4.1
|
Appointment
|
20
|
4.2
|
General Authority
|
21
|
4.3
|
Powers
|
21
|
4.4
|
Cleanup Managers
|
23
|
4.5
|
Redevelopment Manager
|
24
|
4.6
|
Retention of Professionals
|
24
|
4.7
|
Executive Compensation
|
25
|
4.8
|
Limitation of the Environmental Response Trust Administrative Trustee's Authority
|
25
|
4.9
|
Reliance by the Environmental Response Trust Protected Parties
|
25
|
4.10
|
Cost Reimbursement of the Environment Response Trust Administrative Trustee
|
26
|
4.11
|
Liability of Environmental Response Trust Protected Parties
|
26
|
4.12
|
Exculpation and Indemnification
|
27
|
4.13
|
Termination of the Environmental Response Trust, Replacement or Removal of the Environmental Response Trust Administrative Trustee
|
28
|
4.14
|
Appointment of Successor Environmental Response Trust Administrative Trustee
|
30
|
4.15
|
No Bond
|
30
|
ARTICLE 5 ENVIRONMENTAL RESPONSE TRUST BENEFICIARY AND POWERS AND RIGHTS HOLDERS
|
30
|
|
5.1
|
Environmental Response Trust Beneficiary
|
30
|
5.2
|
Identification of Environmental Response Trust Beneficiary
|
30
|
5.3
|
Settlors and Powers and Rights Holders
|
32
|
5.4
|
Transfer of Beneficial Interests, Rights and Powers
|
40
|
ARTICLE 6 REPORTING AND TAXES
|
40
|
|
6.1
|
Reports
|
40
|
6.2
|
Other
|
41
|
6.3
|
Reports in Support of Insurance Claims
|
41
|
6.4
|
Tax Treatment of the Environmental Response Trust
|
41
|
6.5
|
Taxable Entity
|
41
|
6.6
|
Trustee as Administrator
|
42
|
6.7
|
Fiscal Year
|
42
|
6.8
|
Property Taxes
|
42
|
6.9
|
Expedited Determination
|
43
|
ARTICLE 7 MISCELLANEOUS PROVISIONS
|
43
|
|
7.1
|
Amendments and Waivers
|
43
|
7.2
|
Cooperation
|
43
|
7.3
|
Situs of the Environmental Response Trust
|
44
|
7.4
|
Headings
|
44
|
7.5
|
Severability
|
44
|
7.6
|
Sufficient Notice
|
45
|
7.7
|
Counterparts
|
45
|
7.8
|
Actions Taken on Other Than Business Day
|
45
|
7.9
|
Compliance with Laws
|
45
|
7.10
|
Preservation of Privilege
|
45
|
7.11
|
No Partnership
|
46
|
7.12
|
Uniform Trust Act
|
46
|
7.13
|
Dispute Resolution
|
46
|
EXHIBIT “A” -
|
Legal Description of Properties Transferred to the Environmental Response Trust
|
|
EXHIBIT “B” -
|
Form of Quitclaim Deed
|
|
EXHIBIT “C” -
|
List of Transferred Contracts
|
|
1.1
|
Definitions
|
1.1.1
|
“Administrative Expenses” means the expenses incurred in administering the Environmental Response Trust, including but not limited to property taxes, liability insurance, security, personnel costs, utilities, maintenance, professional fees, Property marketing costs, and demolition costs unrelated to Environmental Actions.
|
1.1.2
|
“Administrative Funding Account” means the funding held by the Environmental Response Trust for the costs necessary for the
|
1.1.3
|
“Administrative Funding Reserve Account” means the funding held by the Environmental Response Trust in a separate dedicated account for the express purpose of being used by the Administrative Trustee to fund actual or projected shortfalls in the Administrative Funding Account identified by the Administrative Trustee prior to the third anniversary of the Effective Date. Such shortfalls are strictly limited to unexpectedly high demolition costs and Property holding costs and unexpectedly low proceeds derived from rental of Properties or proceeds derived from the sale of Properties or personalty. The Administrative Funding Reserve Account shall not be used under any circumstances to fund any Environmental Action or any administrative or personnel matters, including legal or professional matters.
|
1.1.4
|
“Administrative Trustee” or “Environmental Response Trust Administrative Trustee” means (i) EPLET, LLC, not individually but solely in its representative capacity as Administrative Trustee, by and through Elliott Laws, not individually but solely in his representative capacity as president, manager or managing member of the Administrative Trustee, of the Environmental Response Trust that is created pursuant to this Environmental Response Trust Agreement, the Settlement Agreement, and the Debtors’ Plan of Liquidation, as detailed in, inter alia, paragraphs 29 through 32 of the Settlement Agreement, and (ii) any successor thereto.
|
1.1.5
|
“Agreement” means this Environmental Response Trust Agreement.
|
1.1.6
|
“Bankruptcy Court” means the United States Bankruptcy Court for the Southern District of New York.
|
1.1.7
|
“Bankruptcy Code” means chapter 11 of title 11 of the United States Code, 11 U.S.C. § 101 et seq., as amended.
|
1.1.8
|
“Beneficiary” or “Environmental Response Trust Beneficiary” means the United States.
|
1.1.9
|
“CERCLA” means the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §§ 9601 et seq., as amended.
|
1.1.10
|
“Chapter 11 Cases” means the voluntary petitions for relief under chapter 11 of title 11 of the Bankruptcy Code in the Bankruptcy Court filed by MLC and certain of its affiliates and subsidiaries on June 1, 2009, and by REALM and ENCORE on October 9, 2009.
|
1.1.11
|
“Cleanup Manager” or “Environmental Response Trust Cleanup Manager” means an employee of the Environmental Response Trust or the Environmental Response Trust Administrative Trustee with responsibilities for certain Environmental Actions and related activities at Properties located in a specified geographic area, as described and designated pursuant to, inter alia, Paragraphs 45-47 of the Settlement Agreement.
|
1.1.12
|
“Confirmation Order” means the order of the Bankruptcy Court confirming the Plan of Liquidation pursuant to section 1129 of the Bankruptcy Code.
|
1.1.13
|
“Court” means the Bankruptcy Court or, if the Bankruptcy Court abstains from exercising jurisdiction or is otherwise without jurisdiction over any matter arising out of this Agreement, a United States District Court having competent jurisdiction with respect to such matters.
|
1.1.14
|
“Cushion Funding Account” means the funding held by the Environmental Response Trust that is available for Environmental Actions at any of the Properties under the circumstances described in Paragraphs 57 and 58 of the Settlement Agreement.
|
1.1.15
|
“Debtors” means MLC, REALM and ENCORE.
|
1.1.16
|
“EDC” means the Government of Canada and the Government of Ontario, through the Export Development Canada, Canada’s export trading agency.
|
1.1.17
|
“Effective Date” means the day on which the Plan of Liquidation becomes effective in accordance with its terms and the Confirmation Order.
|
1.1.18
|
“Environmental Action” means any response, removal, investigation, sampling, remediation, reclamation, closure, post-closure, corrective action, engineering controls, institutional controls, deed restrictions, oversight costs and OMM activities authorized or required under law with respect to a Property.
|
1.1.19
|
“Environmental Costs” means the costs and expenses of implementing Environmental Actions with respect to any Property that are part of an approved budget.
|
1.1.20
|
“Environmental Cost Account” shall mean each of the Minimum Estimated Property Funding Account, Reserve Property Funding Account and Long Term OMM Property Funding Account.
|
1.1.21
|
“Environmental Response Trust” means the Environmental Response Trust as such term is defined in the Plan of Liquidation and the Settlement Agreement. Actions of the Environmental Response Trust shall be performed by or at the direction of the Administrative Trustee.
|
1.1.22
|
“Environmental Response Trust Account” shall have the meaning given in Section 2.5.2. hereof.
|
1.1.23
|
“Environmental Response Trust Assets” means the funding placed in the Environmental Response Trust Accounts and the assets transferred to the Environmental Response Trust in accordance with this Agreement, the Settlement Agreement and the Plan, but shall not include any General Motors, LLC (“New GM”) securities. The Environmental Response Trust Assets are comprised of (i) Cash in the amount of no less than $641,414,653 million, as adjusted pursuant to Paragraphs 36 and 37 of the Settlement Agreement; (ii) the Properties listed in Exhibit “A” to this Trust Agreement; (iii) personal property, including equipment, related to certain of the Properties; (iv) all leases of Environmental Response Trust Assets with New GM; (v) all Transferred Contracts; and (vi) such other assets acquired or held by the Environmental Response Trust from time to time pursuant to this Agreement, the Settlement Agreement and the Plan of Liquidation, or an order of the Court.
|
1.1.24
|
“Environmental Response Trust Protected Parties” means the Administrative Trustee, individually and/or in its capacity as official representative of the Environmental Response Trust, and the Environmental Response Trust’s and the Administrative Trustee’s shareholders, members, officers, managers, directors, employees (including but not limited to the Cleanup Managers and the Redevelopment Manager), attorneys and agents, if any, solely in their capacities as such. Each of the Environmental Response Trust Protected Parties is, individually, an Environmental Response Trust Protected Party. For avoidance of doubt, the Environmental Response Trust is not an Environmental Response Trust Protected Party.
|
1.1.25
|
“Environmental Response Trust Proceeds” means income, interest earned and proceeds of any liquidation, sale, lease, recovery or other disposition of or other proceeds with respect to the Environmental Response Trust Assets.
|
1.1.26
|
“Environmental Response Trust Beneficiary” or “Beneficiary” means the United States of America (“United States”).
|
1.1.27
|
“Environmental Law” means any applicable federal, tribal, state or local law, statute, ordinance, rule, regulation or code, any license, permit, authorization, administrative or court order, judgment, decree or injunction, including all common law, related to pollution, protection or restoration of health, safety or the environment, or the use, storage, recycling, treatment, generation, transportation, processing, handling, labeling, production, release or disposal of pollutants or Hazardous Substances, including, without limitation, CERCLA; RCRA; the Clean Air Act, 42 U.S.C. Section 7401, et seq.; the Federal Water Pollution
|
1.1.28
|
“Final Order” means a court order that has not been reversed, stayed, modified, or amended, and as to which (i) the time to appeal, seek review, rehearing or remand, or petition for certiorari has expired and no timely filed appeal or petition for review, rehearing, remand or certiorari is pending; or (ii) any appeal taken or petition for certiorari filed has been resolved by the highest court to which the order or judgment was appealed or from which certiorari was sought.
|
1.1.29
|
“Funds” or “Funding” means those funds contributed by the Debtors to the Environmental Response Trust in an amount no less than $641,414,653 in order to pay Environmental Costs and Administrative Expenses of the Properties and the Environmental Response Trust, and to fulfill the purposes of the Environmental Response Trust consistent with this Agreement and the Settlement Agreement.
|
1.1.30
|
“Governments” means the United States, the States, and the Tribe.
|
1.1.31
|
“Hazardous Substances” means all materials, substances, or wastes defined, designated, regulated or classified as hazardous, toxic or radioactive, under any Environmental Laws, whether by type or by quantity, and includes but is not limited to petroleum or any derivative or by-product thereof and asbestos containing materials.
|
1.1.32
|
“Indemnifiable Expenses” has the meaning set forth in Section 4.12.2.
|
1.1.33
|
“Internal Revenue Code” or “IRC” means title 26 of the Internal Revenue Code of 1986, as amended, 26 U.S.C. §§ 1 et seq.
|
1.1.34
|
“Lead Agency” means the agency designated as such for each Property, as reflected on Attachment A Column 7 to the Settlement Agreement. For each Property, the Lead Agency shall either be the U.S. EPA, or an agency of the State in which the Property is located. The U.S. EPA and the State in which a Property is located may provide the Administrative Trustee with joint written notice that the Lead Agency for the Property has changed.
|
1.1.35
|
“Long Term OMM Property Funding Account” means the funding (if any) to be held by the Environmental Response Trust and to be set aside in
|
1.1.36
|
“Minimum Estimated Property Funding Account” means the funding to be held by the Environmental Response Trust and to be set aside in separate dedicated subaccounts for each Property that has been estimated as the minimum amount of funding with respect to Environmental Actions with respect to each Property.
|
1.1.37
|
“MSPA” means the Amended and Restated Master Sale and Purchase Agreement by and among General Motors Corporation and its debtor subsidiaries, as Sellers, and NGMCO, Inc., as successor in interest to Vehicle Acquisition Holdings LLC, a purchaser sponsored by the U.S. treasury, as purchaser, dated as of June 26, 2009, together with all related documents and agreements as well as all exhibits, schedules, and addenda thereto, as amended, restated, modified, or supplemented from time to time.
|
1.1.38
|
“OMM” means operation, monitoring and maintenance activities required as Environmental Actions.
|
1.1.39
|
“Parties” means the Settlors, the Environmental Response Trust Administrative Trustee and the Governments.
|
1.1.40
|
“Person” means any individual, corporation, limited liability company, partnership, joint venture, association, joint-stock company, trust, charitable foundation, unincorporated organization, government or any agency or political subdivision thereof or any other entity.
|
1.1.41
|
“Plan of Liquidation” means the Chapter 11 Plan of Liquidation filed by Debtors on August 31, 2010, as amended, modified and supplemented from time to time and incorporating the Settlement Agreement.
|
1.1.42
|
“Properties” means each of the 89 properties that are set forth and more particularly described in Attachment A to the Settlement Agreement including, without limitation, all Settlor-owned fixtures, improvements, and equipment located thereon as of the Effective Date and all appurtenances, rights, easements, rights-of-way, mining rights, mineral rights, mineral claims, appurtenant groundwater rights, associated surface water rights, claims and causes of actions, and filings or other interests relating to or benefitting such properties.
|
1.1.43
|
“RCRA” means the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq., as amended.
|
1.1.44
|
“Redevelopment Manager” means the employee of the Environmental Response Trust Administrative Trustee with responsibilities relating to the
|
1.1.45
|
“Reserve Property Funding Account” means the funding to be held by the Environmental Response Trust and to be set aside in separate dedicated subaccounts for each Property that has been estimated as an appropriate minimum amount of reserve funding with respect to Environmental Actions with respect to each Property for use in performing Environmental Actions upon exhaustion of the Minimum Estimated Property Funding Account.
|
1.1.46
|
“Settlement Agreement” means the Environmental Response Trust Consent Decree and Settlement Agreement Among Debtors, the Administrative Trustee, the United States and Certain States dated October 20, 2010.
|
1.1.47
|
“Settlors” means MLC, REALM and ENCORE.
|
1.1.48
|
“States” means the States (or Commonwealths) of Delaware, Illinois, Indiana, Kansas, Michigan, Missouri, New Jersey, New York, Ohio, Pennsylvania, Virginia, and Wisconsin, and the Louisiana Department of Environmental Quality, the Massachusetts Department of Environmental Protection, and the Department of Environmental Protection of the Commonwealth of Pennsylvania.
|
1.1.49
|
“Superfund” means the “Hazardous Substance Superfund” established by 26 U.S.C. § 9507 or, in the event such Hazardous Substance Superfund no longer exists, any successor fund or comparable account of the Treasury of the United States to be used for removal or remedial actions to address releases or threats of releases of Hazardous Substances.
|
1.1.50
|
“Support Agency” means the agency listed as such for each Property on Attachment A Column 8 to the Settlement Agreement. Where a State environmental agency is the Lead Agency, U.S. EPA will be the Support Agency; where U.S. EPA is the Lead Agency, the State and, where applicable, Tribal environmental agency will be the Support Agency.
|
1.1.51
|
“Transferred Contracts” means those contracts and agreements relating to the Properties listed in Exhibit “C” to this Agreement.
|
1.1.52
|
“Treasury Regulations” means the Treasury Regulations promulgated under the Internal Revenue Code.
|
1.1.53
|
“Tribe” means the Saint Regis Mohawk Tribe.
|
1.1.54
|
“United States” means the United States of America, and all of its agencies, departments, and instrumentalities, including the U.S. EPA and the United States Department of the Treasury.
|
1.1.55
|
“U.S. EPA” means the United States Environmental Protection Agency and any successor departments or agencies of the United States.
|
1.1.56
|
“U.S. Treasury” means the United States Department of the Treasury and any successor departments or agencies of the United States.
|
1.2
|
Principles of Construction
|
1.2.1
|
The meanings set forth for defined terms in Section 1.1 or elsewhere in this Agreement shall be equally applicable to both the singular and plural forms of the terms defined.
|
1.2.2
|
All references to “this Agreement” or “hereof” and other like terms mean, unless the context requires otherwise, this Agreement, including the Exhibits hereto, as it may be amended, modified or supplemented from time to time in accordance with the terms of this Agreement.
|
1.2.3
|
The section headings contained in this Agreement are solely for convenience of reference and shall not affect the meaning or interpretation of this Agreement or of any term or provision hereof.
|
1.2.4
|
References in this Agreement to Sections and Exhibits, unless otherwise specified, are to Sections of and Exhibits to this Agreement.
|
1.2.5
|
To the extent reasonably possible, the provisions of this Agreement shall be interpreted in a manner consistent with the Plan of Liquidation and the Settlement Agreement. Where the provisions of this Agreement are irreconcilable with the provisions of the Plan of Liquidation, the terms of this Agreement shall govern. Where the provisions of this Agreement are irreconcilable with the provisions of the Settlement Agreement, the terms of the Settlement Agreement shall govern.
|
2.1
|
Name
|
2.2
|
Establishment of Environmental Response Trust
|
2.3
|
Purpose of the Environmental Response Trust
|
2.4
|
Transfer of Ownership
|
2.5
|
Transfer of Funds and Creation of Environmental Response Trust Accounts
|
|
2.5.1
|
Funding. On the Effective Date, the Settlors shall (i) transfer or cause to be transferred to the Environmental Response Trust or at the direction of the Environmental Response Trust Administrative Trustee cash in the amount of no less than $641,414,653, which constitutes the Environmental Response Trust Funds; (ii) pay or cause to be paid to the Expendable Trust as defined in Paragraph 79 of the Settlement Agreement the amount of $786,944; and (iii) pay or cause to be paid to the 807 Trust Fund as defined in Paragraph 80 of the Settlement Agreement the amount of $102,390. Upon the Settlors’ transfer of the Properties listed in Exhibit “A” and Funds pursuant to this Agreement and the Settlement Agreement, Debtors shall have no further obligation to transfer any additional properties or funds under this Agreement, the Settlement Agreement or otherwise for the purpose of paying Environmental Costs, the costs of administering the Environmental Response Trust or for any other purpose relating to the Properties.
|
|
2.5.2
|
Environmental Response Trust Accounts. Upon receipt of the Properties and the Funds, the Environmental Response Trust Administrative Trustee shall set aside in separate segregated trust subaccounts (each an “Environmental Cost Account”), the Funding for Environmental Costs with respect to each Property as follows: (i) minimum estimated property funding shall be placed in a Minimum Estimated Property Funding Account containing funding amounts for each Property as set forth on Table A Column 2 attached to the Settlement Agreement and totaling $294,977,592, (ii) reserve property funding shall be placed in a Reserve Property Funding Account containing funding amounts for each Property as set forth on Table A Column 3 attached to the Settlement Agreement and totaling $52,054,867, and (iii) a Long Term OMM Property Funding Account containing funding amounts (if any) for each Property as set forth in Table A Column 4 attached to the Settlement Agreement and totaling $84,099,794. The Environmental Response Trust Administrative Trustee shall also set aside into a separate segregated trust subaccount the Cushion Funding totaling $68,282,400 (the “Cushion Funding Account”). The Environmental Response Trust Administrative Trustee shall further set aside into a separate segregated trust subaccount the Administrative Funding in an amount no less than $102 million (the “Administrative Funding Account”), and into a further separate segregated trust subaccount the Administrative Reserve Funding totaling $40 million (the “Administrative Funding Reserve Account”). The separate subaccounts are referred to in this Agreement individually as an “Environmental Response Trust Account” and collectively as the “Environmental Response Trust Accounts.” The initial Funds for each of the Environmental Response Trust Accounts shall be as set forth in Paragraph 32 of the Settlement Agreement, subject to adjustment as provided by Paragraphs 36 and 37 of the Settlement Agreement. Subject to Section 2.7
|
2.6
|
Holder of Environmental Response Trust Assets
|
2.7
|
Management of Environmental Response Trust Assets
|
2.7.1
|
Consistent with this Agreement and the Settlement Agreement, including but not limited to Paragraphs 60 through 62 of the Settlement Agreement, the Environmental Response Trust shall use (i) the Minimum Estimated Property Funding Account for each of the Properties to perform or fund Environmental Actions and to reimburse the Lead Agency for Environmental Actions it conducts with respect to that Property; (ii) the Reserve Property Funding Account to perform or fund Environmental Actions applicable to that Property, and to reimburse the Lead Agency for Environmental Actions it conducts with respect to that Property, after the Property’s Minimum Estimated Property Funding Account has been exhausted; and (iii) the Long Term OMM Account to fund or perform OMM at the Property, if any, beginning ten years after the Effective Date and to reimburse the Lead Agency for OMM it conducts with respect to that Property. The Environmental Response Trust Administrative Trustee shall also use the Cushion Funding Account to fund Environmental Actions at Properties under certain circumstances as provided for under the terms of this Agreement and the Settlement Agreement, including but not limited to Paragraphs 55 through 59 of the Settlement Agreement. The Environmental Response Trust Administrative Trustee shall further fund administrative expenses from the Administrative Funding Account as provided for under the terms of this Agreement and the Settlement Agreement, including but not limited to Paragraphs 52 and 54 of the Settlement Agreement.
|
2.7.2
|
Consistent with Paragraph 101 of the Settlement Agreement, the Environmental Response Trust Administrative Trustee may enter into a consent decree or consent order or agreement with the United States and/or a State or Tribe with regulatory authority, and may perform or cause to be performed work pursuant to administrative orders issued unilaterally by U.S. EPA or a State or Tribe under applicable law to
|
2.7.3
|
The Environmental Response Trust Administrative Trustee shall transfer Funds from or among the Environmental Cost Accounts as provided for under the Settlement Agreement, including but not limited to Paragraphs 60 through 62 of the Settlement Agreement. The Environmental Response Trust Administrative Trustee shall also transfer Funding from the Administrative Funding Account and the Administrative Funding Reserve Account as provided for under the Settlement Agreement, including but not limited to Paragraphs 52 through 54 of the Settlement Agreement.
|
2.8
|
Investment and Safekeeping of Environmental Response Trust Assets
|
2.8.1
|
The Environmental Response Trust Assets, until sold or otherwise disposed of as provided under the terms of this Agreement, the Settlement Agreement and the Plan of Liquidation, shall be held in trust. The Environmental Response Trust Administrative Trustee shall be under no liability for interest or producing income on any moneys received by the Environmental Response Trust hereunder and held for distribution or payment as provided in this Agreement, except as such interest is actually received by the Environmental Response Trust. Investments of any moneys held by the Environmental Response Trust shall be administered in a manner consistent with the standards and requirements of Section 704(a)(1) and (a)(2) of the Bankruptcy Code; provided, however, that the right and power of the Environmental Response Trust to invest the Environmental Response Trust Assets, the Environmental Response Trust Proceeds, or any income earned by the Environmental Response Trust, shall be limited to the right and power to invest such assets (pending periodic distributions in accordance with Article 3 hereof) in demand and time deposits, such as certificates of deposit, in banks or other savings institutions whose deposits are federally insured, or other liquid investments, such as U.S. Treasury bills, or such other investment as approved by the Governments; and provided further, that the scope of any such permissible investments shall be limited to include only those investments, or shall be expanded to include any additional investments, as the case may be, that a liquidating trust, within the meaning of the Treasury Regulations section 301.7701-4(d), may be permitted to hold, pursuant to Treasury Regulations, or any modification in the IRS guidelines, whether set forth in IRS rulings, other IRS pronouncements or otherwise (although the Parties acknowledge and agree that the Environmental Response Trust is intended to be properly characterized for U.S. federal and applicable state and local tax purposes as a qualified settlement fund within the meaning of Section 1.468B-1 of the Treasury
|
2.8.2
|
Consistent with Paragraph 35 of the Settlement Agreement, “separately dedicated subaccounts” may be accomplished by accounting entries and nothing herein shall preclude the Administrative Trustee from commingling funds solely for investment or administrative purposes, provided, however, that the Administrative Funding Account and Administrative Funding Reserve Account shall not be commingled with any other accounts under any circumstances and that the Environmental Response Trust Administrative Trustee is expressly prohibited from holding any or all of the Funds in a common, commingled or collective trust fund with the assets of any other entity.
|
2.8.3
|
Nothing in this Section 2.8 shall be construed as authorizing the Environmental Response Trust Administrative Trustee to cause the Environmental Response Trust to carry on any business or to derive any gains therefrom, including without limitation, the business of an investment company, or a company “controlled” by an “investment company,” required to register as such under the Investment Company Act of 1940, as amended. The sole purpose of this Section 2.8 is to authorize the investment of the funds in the Environmental Response Trust Accounts or any portions thereof as may be reasonably prudent pending use of the proceeds for the purposes of the Environmental Response Trust.
|
2.9
|
Insurance Policy to Cover Cost Overruns with Respect to Future Response Actions
|
2.10
|
Access and Institutional Controls
|
2.11
|
Internal Accounting
|
2.12
|
Inspection of Books
|
2.13
|
Independent Audits
|
2.14
|
Termination
|
2.14.1
|
Consistent with the terms of this Agreement, the Settlement Agreement and the Plan of Liquidation, the Environmental Response Trust Administrative Trustee shall not unduly prolong the duration of the Environmental Response Trust and shall at all times endeavor to resolve, settle or otherwise dispose of all claims against Environmental Response Trust Assets and to effect the distribution of Environmental Response Trust Assets and other receipts relating thereto in accordance with the terms of this Agreement and the Settlement Agreement, and to terminate the Environmental Response Trust as soon as practicable consistent with this Agreement, the Settlement Agreement and the Plan of Liquidation.
|
2.14.2
|
The Parties agree that the rule against perpetuities does not apply to the Environmental Response Trust, but to the extent that any rule against perpetuities or a rule governing or limiting vesting, accumulations, the suspension of alienation or the like shall be deemed applicable, the Environmental Response Trust shall automatically terminate on the date 90 days after the date on which 21 years less 91 days pass after the death of the last survivor of all of the descendants of the late Joseph P. Kennedy, Sr., father of the late President John F. Kennedy, living on the date hereof, and provided further that if the Environmental Response Trust owns real property located in any jurisdiction that sets a maximum duration for interests in real property located in such jurisdiction held in trust under a rule against perpetuities or a rule governing or limiting vesting, accumulations, the suspension of alienation, or the like, that for the Environmental Response Trust is shorter than the date 90 days after the date on which 21 years less 91 days pass after the death of the last survivor of all of the descendants of the late Joseph P. Kennedy, Sr., father of the late President John F. Kennedy, living on the date hereof, the Environmental Response Trust shall automatically terminate as to such Property upon the expiration of the maximum period authorized pursuant to the laws of such jurisdiction. If the Environmental Response Trust is terminated in whole or in part pursuant to this Section 2.14.2, title to the relevant Property or Properties as to which the Environmental Response Trust is terminated shall be transferred outright and free of trust to or at the direction of the United States in consultation with any of the States in which the relevant Property or Properties are located (or the Tribe in the case of the Massena Property), provided, however, in accordance with Paragraph 83 of the Settlement Agreement, that the disposition of all relevant Property or Properties shall be governed by applicable state and federal law, or by agreement of the Environmental Response Trust Administrative Trustee, the United States and the applicable State or Tribe, or by order of the Court, and further provided that neither the
|
2.15
|
Property Disposition
|
2.15.1
|
The United States, the State in which a Property is located (or the Tribe in the case of the Massena Property), or a governmental unit that is a designee thereof, may at any time propose in writing to take ownership of any of the Properties or any part thereof. Any such proposed transfer and the terms thereof are subject to the notice to and consultation with the United States, the State or Tribe in whose jurisdiction the Property is located, and the affected communities. Any Property owned by the Environmental Response Trust may be sold or transferred by the Administrative Trustee after the Administrative Trustee provides notice to and consults with the United States and the applicable State or Tribe, and affected communities where the Property is located. Any sale or other disposition of a Property owned by the Environmental Response Trust shall be consistent with the provisions of Paragraphs 64 through 67 and 69 through 75 of the Settlement Agreement.
|
3.1
|
Budgets for and Payments by the Environmental Response Trust
|
|
3.1.1
|
Administrative Expenses of the Environmental Response Trust. Within ninety (90) days after the Effective Date, and on or before January 1 of each year thereafter, the Environmental Response Trust Administrative Trustee shall provide the United States with a proposed annual budget for all expenditures from the Administrative Funding Account based on the most cost-effective use of the Funds. The Administrative Trustee shall provide a copy of the proposed annual budget for the Administrative Funding Account to the U.S. Treasury for approval. The Administrative Trustee shall provide a copy of the approved annual budget for the Administrative Funding Account to the Governments. Along with each annual budget, the Administrative Trustee shall provide a separate forecast of administrative expenditures with annual details for at least the next three years (or such longer period as the United States shall reasonably request). The Administrative Trustee is authorized to expend Administrative Funding Account funds consistent with the terms of this Agreement, the Settlement Agreement and the approved annual budget described in this paragraph. The Environmental Response Trust shall
|
|
3.1.2
|
Remuneration for Environmental Response Trust Administrative Trustee’s Start-Up Fees and Expenses. The Environmental Response Trust Administrative Trustee shall, in connection with the first annual budget, be entitled to remuneration from the Environmental Response Trust Administrative Funding Account of up to $165,000 per month for its fees and expenses, including attorneys’ fees, incurred from August 22, 2010, through the Effective Date in connection with the formation of the Environmental Response Trust, up to a maximum amount of $950,000. The Environmental Response Trust Administrative Trustee shall submit documentation of its expenses as part of the approval process of the first annual budget. The Environmental Response Trust Administrative Trustee shall coordinate with the Settlors to avoid duplication of efforts.
|
|
3.1.3
|
Environmental Expenses of the Environmental Response Trust. Consistent with Paragraph 49 of the Settlement Agreement, the Environmental Response Trust Administrative Trustee shall oversee the preparation of balance sheets, financial statements and proposed annual budgets of projected expenditures for Environmental Costs from each of the Environmental Cost Accounts and the Cushion Funding Account. The first proposed budgets for the remainder of the current calendar year and the next calendar year shall be prepared within ninety (90) days following the Effective Date and annual budgets shall be prepared thereafter on or before each January 1 during the term of the Environmental Response Trust. The applicable Lead Agencies shall have the authority to approve or disapprove the proposed budgets consistent with Paragraph 49 of the Settlement Agreement. If disapproved, a budget shall be revised and resubmitted as expeditiously as possible. No expenses to be paid from an Environmental Cost Account may be incurred or paid by the Environmental Response Trust Administrative Trustee that are inconsistent with an approved budget, unless the Lead Agency approves an amended budget consistent with Paragraph 49 of the Settlement Agreement or any dispute relating to the budget is resolved by the Court or informal dispute resolution as set forth in Paragraphs 50 and 51 of the Settlement Agreement; provided, however, that the Environmental Response Trust Administrative Trustee may incur or pay ongoing or recurring expenses approved in the prior year’s budget that occur between the time a proposed annual budget or proposed amended annual budget is submitted and the time it is approved. The Environmental Response Trust Administrative Trustee shall pay expenses and fees due to contractors, professionals or consultants hired consistent with the applicable approved annual budget or approved amended annual budget from the relevant
|
|
3.1.4
|
Emergency Environmental Action. Consistent with the provisions of Paragraph 49(ii) of the Settlement Agreement, in the event of an emergency at a Property requiring performance of an Environmental Action within hours or days of the Environmental Response Trust Administrative Trustee first receiving notice of the emergency, the Environmental Response Trust Administrative Trustee shall be authorized to utilize funding from a Property’s Minimum Estimated Property Funding Account and/or Reserve Property Funding Account to conduct the emergency Environmental Actions or reimburse the Lead Agency or Support Agency for conducting the emergency Environmental Actions.
|
|
3.1.5
|
Annual Reports. By March 1 of each year during the term of the Environmental Response Trust and within nine (9) months after termination of the Environmental Response Trust, the Environmental Response Trust Administrative Trustee shall prepare and submit to the Governments an annual report with respect to each of the Environmental Response Trust Accounts. The annual report shall pertain to the prior calendar year, or if the report is a final report, such period from the most recent annual report to the termination of the Environmental Response Trust Accounts. After receipt of an annual report, the States and Tribe shall have the right upon fourteen (14) days written notice delivered to the Environmental Response Trust Administrative Trustee to inspect the Environmental Response Trust’s books and records as related to the annual report.
|
3.2
|
Manner of Payment
|
3.3
|
Unclaimed Distributions
|
4.1
|
Appointment
|
4.1.1
|
Debtors, after approval by the United States, hereby appoint, not individually but solely in its representative capacity as Environmental Response Trust Administrative Trustee, to serve as the Environmental Response Trust Administrative Trustee, and the Environmental Response Trust Administrative Trustee hereby accepts such appointment and agrees to serve in such representative capacity, beginning on the Effective Date of this Agreement. Subject to the provisions of Section 4.11 herein, the term of the Environmental Response Trust Administrative Trustee shall be for five years at which time the Environmental Response Trust Administrative Trustee may be re-appointed or terminated as provided for under Paragraph 42 of the Settlement Agreement. Any successor Environmental Response Trust Administrative Trustee shall be appointed in accordance with Paragraph 42 of the Settlement Agreement. If the Environmental Response Trust Administrative Trustee is not reappointed and no successor Environmental Response Trust Administrative Trustee is appointed by the expiration of the Environmental Response Trust Administrative Trustee’s term, the Court may, on an interim basis, reappoint the Environmental Response Trust Administrative Trustee or appoint a successor Environmental Response Trust Administrative Trustee until a successor is appointed in accordance with Paragraph 42 of the Settlement Agreement.
|
|
4.1.2
|
The Environmental Response Trust Administrative Trustee is authorized, consistent with the requirements of Paragraphs 46, 47, 49 and 50 of the Settlement Agreement to obtain the services of outside environmental contractors (“Contractors”) and consultants (“Consultants”) to implement the Environmental Actions. The Contractors and Consultants shall obtain environmental, general and professional liability insurance in the sum of no less than $25,000,000 or such lesser amount as agreed to by the Environmental Response Trust Administrative Trustee after consultation with the Governments. Additional insureds or other beneficiaries of the insurance policies shall be the Environmental Response Trust and the insurance policies shall cover negligence committed by the Contractors
|
4.2
|
General Authority
|
4.3
|
Powers
|
4.3.1
|
to receive, manage, invest, supervise and protect the Environmental Response Trust Assets, withdraw, make distributions and pay taxes and other obligations owed by the Environmental Response Trust or the Environmental Response Trust Accounts from funds held by the Environmental Response Trust Administrative Trustee and/or the Environmental Response Trust (or the Environmental Response Trust
|
4.3.2
|
to invest in, and only in, demand and time deposits such as certificates of deposit, in banks or other savings institutions or other liquid investments, such as a U.S. Treasury bills as permitted by Section 345 of the Bankruptcy Code or as otherwise permitted by the Bankruptcy Court or agreed to by the Governments, but including only those investments, and expanded to include any additional investments, as the case may be, that a liquidating trust, within the meaning of Treasury Regulation Section 301.7701-4(d), may be permitted to hold, pursuant to Treasury Regulations, or any modification in the IRS guidelines, whether set forth in IRS rulings, other IRS pronouncements or otherwise;
|
4.3.3
|
to incur or assume liabilities in furtherance of or in connection with the Environmental Response Trust Administrative Trustee’s or the Environmental Response Trust’s duties, powers, authority, and obligations under this Agreement and the Settlement Agreement and determine and satisfy any and all liabilities created, incurred or assumed by the Environmental Response Trust;
|
4.3.4
|
to make distributions of the Environmental Response Trust Assets from the Environmental Response Trust Accounts for the purposes contemplated in this Agreement, the Settlement Agreement and the Plan of Liquidation;
|
4.3.5
|
to engage and retain employees, counsel and other professionals in a manner not inconsistent with the terms of this Agreement and the Settlement Agreement to assist the Environmental Response Trust Administrative Trustee with respect to the responsibilities described herein, on such terms as the Environmental Response Trust Administrative Trustee deems appropriate, without Bankruptcy Court approval;
|
4.3.6
|
to perform duties, exercise the powers, and assert the rights of a trustee under Sections 704(a)(1) and 704(a)(2) of the Bankruptcy Code;
|
4.3.7
|
to obtain general liability insurance, pollution legal liability insurance for third-party bodily injury and property damage risks and other reasonable insurance coverage, including errors and omissions and directors and officers liability insurance, with respect to the Environmental Response Trust Administrative Trustee’s liabilities and obligations as Environmental Response Trust Administrative Trustee under this Agreement and the Settlement Agreement (in the form of an errors and omissions policy or otherwise) and indemnification for the Environmental Response Trust
|
4.3.8
|
to request any appropriate tax determination with respect to the Environmental Response Trust, protest, contest or otherwise object to any such tax determination, and make any tax election, settle or compromise any tax liability, or consent to any claim or assessment relating to taxes;
|
4.3.9
|
to effect all actions and execute all agreements, instruments and other documents necessary to implement this Agreement and the Settlement Agreement, including to exercise such other powers as may be vested in or assumed by the Environmental Response Trust and/or the Environmental Response Trust Administrative Trustee pursuant to this Agreement and any order of the Court or as may be necessary and proper to carry out the provisions of this Agreement. No Person dealing with the Environmental Response Trust shall be obligated to inquire into the authority of the Environmental Response Trust Administrative Trustee in connection with the protection, conservation or disposition of Environmental Response Trust Assets. The Environmental Response Trust Administrative Trustee is authorized to execute and deliver all documents on behalf of the Environmental Response Trust to accomplish the purposes of this Agreement and the Settlement Agreement;
|
4.3.10
|
to prosecute and defend lawsuits or administrative actions or proceedings on behalf of the Environmental Response Trust;
|
4.3.11
|
to take all other appropriate action with respect to the Environmental Trust Assets to the extent consistent with the purpose of the Environmental Response Trust; and
|
4.3.12
|
to file, if necessary, any and all tax and information returns with respect to the Environmental Response Trust, and pay taxes, if any, payable by the Environmental Response Trust.
|
4.4
|
Cleanup Managers
|
4.4.1
|
In connection with the administration of the Environmental Response Trust, the Environmental Response Trust Administrative Trustee is authorized to, consistent with the requirements of Paragraph 45 of the Settlement Agreement, employ on behalf of the Environmental Response Trust Cleanup Managers who will report to, and be subject to the supervision of, the Environmental Response Trust Administrative Trustee.
|
4.4.2
|
As provided for by Paragraph 45 of the Settlement Agreement, the Cleanup Managers shall be acceptable to the Lead Agencies with jurisdiction over Properties within the respective Cleanup Manager’s responsibilities, and each Cleanup Manager is subject to the disapproval of the applicable Lead Agencies. Any Lead Agency may request that the
|
4.5
|
Redevelopment Manager
|
4.5.1
|
In connection with the administration of the Environmental Response Trust, the Environmental Response Trust Administrative Trustee is authorized to, consistent with the requirements of Paragraph 48 of the Settlement Agreement, employ on behalf of the Environmental Response Trust a Redevelopment Manager who will report to, and be subject to the supervision of, the Environmental Response Trust Administrative Trustee, to assist the Environmental Response Trust Administrative Trustee in dealing with the sale, lease or redevelopment of Properties.
|
4.5.2
|
As provided for under Paragraph 48 of the Settlement Agreement, the Redevelopment Manager’s duties will include consulting with applicable federal and state officials working on redevelopment issues and affected communities where the Property is located, and the Redevelopment Manager’s expenses will be paid from the Administrative Funding Account.
|
4.6
|
Retention of Professionals
|
4.7
|
Executive Compensation
|
4.8
|
Limitation of the Environmental Response Trust Administrative Trustee’s Authority
|
|
4.8.1
|
engage in any trade or business with respect to the Environmental Response Trust Assets or collect any proceeds therefrom except as, and to the extent the same is deemed in good faith by the Environmental Response Trust Administrative Trustee, to be reasonably necessary or proper for the conservation or protection of the Environmental Response Trust Assets, or the fulfillment of the purposes of the Environmental Response Trust;
|
|
4.8.2
|
take any action in contravention of this Agreement, the Settlement Agreement, the Plan of Liquidation, the Confirmation Order or applicable law, or any action that would make it impossible to carry on the activities of the Environmental Response Trust; or
|
|
4.8.3
|
except as otherwise set forth in this Agreement or the Settlement Agreement, possess property of the Environmental Response Trust or assign the Environmental Response Trust’s rights in specific property for other than purposes of the Environmental Response Trust.
|
4.9
|
Reliance by the Environmental Response Trust Protected Parties
|
4.10
|
Cost Reimbursement of the Environmental Response Trust Administrative Trustee
|
4.11
|
Liability of Environmental Response Trust Protected Parties
|
4.12
|
Exculpation and Indemnification
|
|
(a)
|
the ownership of Environmental Response Trust Assets;
|
|
(b)
|
the discharge of duties and powers conferred upon the Environmental Response Trust and/or Environmental Response Trust Administrative Trustee by this Agreement, the Settlement Agreement and the Plan of Liquidation, any order of the Court, or applicable law or otherwise, including the performance of an Environmental Action on behalf of the Environmental Response Trust and the making of payments in accordance with this Agreement, the Settlement Agreement and the Plan of Liquidation, or any order of court, and the implementing of the provisions of this Agreement, the Settlement Agreement and the Plan of Liquidation or any order of court; or
|
|
(c)
|
any claim by or against Settlors.
|
|
4.12.1
|
Exculpation. The Environmental Response Trust Protected Parties and the Environmental Response Trust are exculpated by all persons, including without limitation, holders of claims and other parties in interest, of and from any and all claims, causes of action and other assertions of liability arising out of or in connection with the matters contained in Section 4.12 (a), (b), and (c). No person, including without limitation, holders of claims and other parties in interest, shall be allowed to pursue any claims or cause of action against any Environmental Response Trust Protected Party or the Environmental Response Trust for any claim against the Debtors, for making payments in accordance with the Settlement Agreement or any order of court, or for implementing the provisions of this Agreement, the Settlement Agreement, the Plan or any order of court. However, nothing in this Section 4.12.1 or this Agreement or the Settlement Agreement shall preclude the Governments from enforcing their rights under this Agreement or the Settlement Agreement, including but not limited to any rights relating to a finding by Final Order of fraud or willful misconduct.
|
|
4.12.2
|
Indemnification. The Environmental Response Trust shall indemnify, defend and hold harmless (without the Environmental Response Trust Protected Parties having to first pay from their personal funds) the Environmental Response Trust Protected Parties from and against any and all claims, causes of action, liabilities, obligations, losses, costs, taxes, judgments, damages or expenses (including attorneys’ fees and expenses) and any other assertion of liability arising out of or in connection with the matters contained in the provisions of Section 4.12 (a), (b) and (c) (collectively, the “Indemnifiable Expenses”), to the fullest extent
|
|
4.12.3
|
It shall be an irrebuttable presumption that any action taken, or inaction, consistent with Court approval or approval of another court of competent jurisdiction shall not constitute willful misconduct or fraud.
|
4.13
|
Termination of the Environmental Response Trust, Replacement or Removal of the Environmental Response Trust Administrative Trustee.
|
|
4.13.1
|
Termination. The duties, responsibilities and powers of the Environmental Response Trust Administrative Trustee will terminate on the date the Environmental Response Trust is terminated under applicable law in accordance with this Agreement and the Settlement Agreement, or
|
|
4.13.2.
|
Resignation. The Environmental Response Trust Administrative Trustee may resign by giving not less than ninety (90) days prior written notice thereof to the Court.
|
|
4.13.3
|
Replacement. Consistent with the provisions of the Settlement Agreement, the Environmental Response Trust Administrative Trustee may be replaced upon completion of any five (5) year term, however, this Section and Sections 4.9, 4.11 and 4.12 above shall survive such replacement.
|
|
4.13.4
|
Removal. The Environmental Response Trust Administrative Trustee may be removed, if such removal is consistent with the terms of the Settlement Agreement, by:
|
(1)
|
The entry of a Final Order by the Court, finding that the Administrative Trustee: (i) committed fraud or willful misconduct after the Effective Date in relation to the Environmental Response Trust Administrative Trustee’s duties under the Environmental Response Trust; (ii) has in any material respect, as a result of negligence, exacerbated conditions at any of the Properties; (iii) has been seriously or repeatedly deficient or seriously or repeatedly negligent or late in the performance of its duties, or (iv) has violated the provisions of the Settlement Agreement or this Agreement. In the event of a finding by the Bankruptcy Court of the occurrence of the events set forth in the foregoing clauses (i), (ii), (iii), or (iv), the United States and the State in which, or Tribe in whose territory, the relevant Property is located may jointly direct that the Environmental Response Trust Administrative Trustee be replaced in accordance with this Agreement. The removal of the Environmental Response Trust Administrative Trustee under this Section 4.13.4(1) and 4.13.4.(2) shall become effective immediately upon notice of appointment of a temporary or permanent successor. The provisions of this Section and Section 4.9, 4.11 and 4.12 above shall survive the removal of the Environmental Response Trust Administrative Trustee.
|
(2)
|
Other than with respect to removal for fraud or willful misconduct, the Environmental Response Trust Administrative Trustee shall continue to be compensated and his expenses reimbursed until a successor Environmental Response Trust Administrative Trustee is in place.
|
4.14
|
Appointment of Successor Environmental Response Trust Administrative Trustees
|
4.15
|
No Bond
|
5.1
|
Environmental Response Trust Beneficiary
|
5.2
|
Identification of Environmental Response Trust Beneficiary
|
|
5.2.1
|
In order to determine the actual names and addresses of the authorized representatives of the United States, the Environmental Response Trust and the Environmental Response Trust Administrative Trustee shall be entitled to rely conclusively on the name and address of the authorized representative for the United States listed below in Section 5.2.3, who may
|
|
5.2.2
|
The Environmental Response Trust Administrative Trustee shall send copies of all reports, budgets, annual balance statements, and other documents that the Environmental Response Trust Administrative Trustee is required to submit to the United States under this Agreement and the Settlement Agreement, and related implementation documents including any unilateral administrative orders, consent decrees, or administrative orders on consent to the following person(s), as applicable:
|
Email: | David.Jones6@usdoj.gov |
Natalie.Kuehler@usdoj.gov | |
Email: | roberts.robert@epa.gov |
Email: | Wieder.Marla@epa.gov |
Singerman.Joel@ epa.gov |
Email: | Felitti.Peter@epamail.epa.gov |
Cisneros.Jose@epamail.epa.gov |
Email: | OFSChiefCounselNotices@do.treas.gov |
5.3
|
Settlors and Powers and Rights Holders
|
|
5.3.1
|
In order to determine the actual names and addresses of the authorized representatives of a State or Tribe, the Environmental Response Trust and the Environmental Response Trust Administrative Trustee shall be entitled to rely conclusively on the name and address of the authorized
|
|
5.3.2
|
The Environmental Response Trust Administrative Trustee shall send copies of all reports, budgets, annual balance statements, and other documents that the Environmental Response Trust Administrative Trustee is required to submit to a State or the Tribe under this Agreement and the Settlement Agreement, and related implementation documents including any unilateral administrative orders, consent decrees, or administrative orders on consent to the following person(s), as applicable:
|
Email: | OFSChiefCounselNotices@do.treas.gov |
Email: | OFSChiefCounselNotices@do.treas.gov |
Email: | OFSChiefCounselNotices@do.treas.gov |
Email: | james.kropid@illinois.gov |
Email: | tim.junk@atg.in.gov |
Email: | msickels@idem.in.gov |
Email: | pmarx@kdheks.gov |
Email: | montgomeryd1@michigan.gov |
Email: | monroeb@michigan.gov |
Email: | gillc1@michigan.gov |
Email: | harry.bozoian@dnr.mo.gov |
Email: | david.lamb@dnr.mo.gov |
Email: | jack.mcmanus@ago.mo.gov |
Email: |
maureen.leary@ag.ny.gov
|
Email: | laurie.stevenson@epa.state.oh.us |
Email: | dale.vitale@ohioattorneygeneral.gov |
Email: | Darsi.Foss@wisconsin.gov |
Email: | janet.dimaggio@wisconsin.gov |
Email: | Kathleen.Strasbaugh@wisconsin.gov |
Email: | MurphyAC@doj.state.wi.us |
Email: | chris.ratcliff@la.gov |
Email: | deberle@state.pa.us |
Email: | privitera@mltw.com |
ATTN: | Kenneth Jock |
Email: | ken.jock@srmt-nsn.gov |
5.4
|
Transfer of Beneficial Interests, Rights and Powers
|
6.1
|
Reports
|
6.2
|
Other
|
6.3
|
Reports in Support of Insurance Claims
|
6.4
|
Tax Treatment of the Environmental Response Trust
|
6.5
|
Taxable Entity
|
6.6
|
Trustee as Administrator
|
6.7
|
Fiscal Year
|
6.8
|
Property Taxes
|
|
6.8.1.
|
Settlors shall pay all property and ad valorem taxes relating to the Properties and other assets owned by the Environmental Response Trust that are due on or prior to the Effective Date (and the Environmental Response Trust shall not be liable for such taxes), and the Environmental Response Trust shall pay all property and ad valorem taxes relating to the Properties and other assets owned by the Environmental Response Trust that are due after the Effective Date.
|
|
6.8.2.
|
Following the Effective Date, subject to Sections 6.16(a) and (d) of the MSPA, the Environmental Response Trust Administrative Trustee shall have the sole right, at its expense, to control, conduct, compromise, and settle any tax contest, audit, or administrative or court proceeding relating to any liability for property and ad valorem taxes attributable to the Properties and shall be authorized to respond to any such tax inquiries relating to the Properties.
|
|
6.8.3.
|
Following the Effective Date, subject to the MSPA, the Environmental Response Trust shall be entitled to the entire amount of any refunds or credits (including interest thereon) with respect to or otherwise relating to any property and ad valorem taxes attributable to the Properties, including for any taxable period ending on, prior to, or after the Effective Date.
|
|
6.8.4.
|
Each of the Debtors and the Environmental Response Trust Administrative Trustee shall cooperate fully with each other regarding the implementation of this Section 6.8 (including the execution of appropriate powers of attorney) and shall make available to the other as reasonably requested all information, records, and documents relating to property and ad valorem taxes governed by this Section 6.8 until the expiration of the applicable statute of limitations or extension thereof or at the conclusion of all audits, appeals, or litigation with respect to such taxes. Without limiting the generality of the foregoing, the Debtors shall execute on or prior to the Effective Date a power of attorney authorizing the Environmental Response Trust Administrative Trustee to correspond, sign, collect, negotiate, settle, and administer tax payments and tax returns
|
6.9
|
Expedited Determination
|
7.1
|
Amendments and Waivers
|
7.2
|
Cooperation
|
7.3
|
Situs of the Environmental Response Trust
|
7.4
|
Headings
|
7.5
|
Severability
|
7.6
|
Sufficient Notice
|
7.7
|
Counterparts
|
7.8
|
Actions Taken on Other Than Business Day
|
7.9
|
Compliance with Laws
|
7.10
|
Preservation of Privilege
|
7.11
|
No Partnership
|
7.12
|
Uniform Trust Act
|
7.13
|
Dispute Resolution
|
ROBERT G. DREHER
|
PREET BHARARA
|
|||
Acting Assistant Attorney General
|
United States Attorney
|
|||
Environment and Natural Resources
|
Southern District of New York
|
|||
Division
|
By: David S. Jones
|
|||
U.S. Department of Justice
|
Natalie N. Kuehler
|
|||
Assistant U.S. Attorneys
|
||||
Date:
|
Date:
|
|||
Alan S. Tenenbaum
|
||||
National Bankruptcy Coordinator
|
||||
Patrick Casey
|
||||
Senior Counsel
|
||||
Environment and Natural Resources Division
|
||||
Environmental Enforcement Section
|
||||
U.S. Department of Justice
|
||||
Date:
|
||||
CYNTHIA GILES
|
||||
Assistant Administrator
|
||||
Office of Enforcement and Compliance
|
||||
Assurance
|
||||
U.S. Environmental Protection Agency
|
||||
Date:
|
|||
Ted Stenger
|
|||
Executive Vice President
|
|||
Motors Liquidation Company, as agent for each of the foregoing entities
|
|||
401 S. Old Woodward Avenue
|
|||
Suite 370
|
|||
Birmingham, MI 48009
|
|||
Tel.: (313) 486-4044
|
|||
Fax: (313) 486-4259
|
|||
Email: tstenger@alixpartners.com
|
|||
Date:
|
|||
Jim M. Redwine
|
|||
Vice President of Environmental Affairs
|
|||
Motors Liquidation Company, as agent for each of the foregoing entities
|
|||
Date:
|
|||
David R. Berz
|
|||
Weil, Gotshal & Manges LLP
|
|||
Attorneys for Debtors and Debtors in Possession
|
|||
1300 Eye Street, NW, Suite 900
|
|||
Washington, D.C. 20005
|
|||
Tel.: (202) 682-7000
|
|||
Fax: (202) 857-0939
|
|||
Email: david.berz@weil.com
|
EPLET, LLC in its Representative Capacity as the Environmental Response Administrative Trustee of The Environmental Response Trust
|
|||
Date:
|
By:
|
||
Name: Elliott P. Laws
|
|||
Title: Managing Member
|
|||
Date:
|
By:
|
||
Michael O. Hill
|
|||
Chief Operating Officer and General Counsel
|
|||
The Environmental Response Trust
|
|
|||
Date:
|
|||
Collin P. O’Mara, Secretary
|
|||
Delaware Department of Natural Resources
|
|||
and Environmental Control | |||
Date:
|
|||
Robert S. Kuehl
|
|||
Deputy Attorney General
|
|||
Delaware Department of Justice
|
|
FOR THE STATE OF ILLINOIS | ||
LISA MADIGAN, Attorney General of the State of Illinois
|
|||
|
|||
MATTHEW J. DUNN, Chief
|
|||
Environmental Enforcement/Asbestos Litigation Division
|
|||
|
|||
|
|||
|
|||
Date: |
|
||
THOMAS E. DAVIS, Chief
|
|||
Environmental Bureau | |||
Assistant Attorney General | |||
|
500 South Second Street | ||
Springfield, IL 62706
|
|||
|
|||
|
|||
|
FOR THE ILLINOIS ENVIRONMENTAL PROTECTION AGENCY | ||
|
|||
|
|||
|
|||
Date: |
|
||
JOHN J. KIM
|
|||
Chief Legal Counsel
|
|||
|
|||
|
Indiana Department of Environmental Management
|
Gregory F. Zoeller,
Attorney General of Indiana
Atty. No. 1958-98
|
||||
By:
|
By:
|
||||
Thomas W. Easterly
Commissioner
|
Patricia Orloff Erdmann
Chief Counsel for Litigation
Atty. No. 17664-49A
|
||||
By:
|
By:
|
||||
Bruce H Palin,
Assistant Commissioner
Office of Land Quality
Ind. Dept. of Environmental Mgmt
100 North Senate Avenue
MC 50-01, ICGN 1301
Indianapolis, IN 46204
|
Timothy J. Junk
Deputy Attorney General
Atty. No. 5587-02
Office of the Attorney General
Indiana Government Center South, Fifth Floor
302 West Washington Street
Indianapolis, IN 46204
|
||||
Date:
|
Date:
|
|
Date:
|
|||
RODERICK L. BREMBY
|
|||
Secretary
|
|||
Kansas Department of
|
|||
Health and Environment
|
Date:
|
|||
Bill Schuette
|
|||
Attorney General
|
|||
Celeste R. Gill (P52484)
|
|||
Assistant Attorney General
|
|||
Environment, Natural Resources and
|
|||
Agriculture Division
|
|||
6th Floor, G. Mennen Williams Building
|
|||
525 West Ottawa Street
|
|||
P.O. Box 30755
|
|||
Lansing, MI 48909
|
|||
Tel.: (517) 373-7540
|
|||
Fax: (517) 373-1610
|
|||
gillc1@michigan.gov
|
|||
Attorneys for the Michigan Department
|
|||
of Natural Resources and Environment
|
Date:
|
|||
CHRIS KOSTER
|
|||
Attorney General for the State of Missouri
|
|||
JOHN K. McMANUS
|
|||
Chief Counsel
|
|||
Agriculture and Environment Division
|
|||
P.O. Box 899
|
|||
Jefferson City, Missouri 65102
|
|||
Tel.: (573) 751-8370
|
|||
Fax: (573) 751-8796
|
|||
Email: jack.mcmanus@ago.mo.gov
|
|||
Date:
|
|||
Leanne Tippett Mosby
|
|||
Director
|
|||
Division of Environmental Quality
|
|||
Missouri Department of Natural Resources
|
|||
P.O. Box 176
|
|||
Jefferson City, Missouri 65102
|
Date:
|
||||
PAULA T. DOW
|
||||
Attorney General for the State of New Jersey
|
||||
By:
|
Richard F. Engel
|
|||
Deputy Attorney General
|
||||
Richard J. Hughes Justice Complex
|
||||
25 Market Street
|
||||
P.O. Box 093
|
||||
Trenton, New Jersey 08625-0093
|
||||
Tel.: (609) 984-4863
|
||||
Fax: (609) 341-5030
|
ERIC T. SCHNEIDERMAN
|
||||
Attorney General
|
||||
Date:
|
||||
By:
|
Maureen Leary
|
|||
Assistant Attorney General
|
||||
Chief, Toxics Section
|
||||
NYS Department of Law
|
||||
Environmental Protection Bureau
|
||||
The Capitol
|
||||
Albany, New York 12224-0341
|
||||
Tel.: (518) 474-7154
|
||||
Fax: (518) 473-2534
|
||||
maureen.leary@ag.ny.gov
|
Date:
|
||||
MICHAEL DEWINE
|
||||
Attorney General for the State of Ohio
|
||||
By:
|
Dale T. Vitale
|
|||
Assistant Attorney General
|
||||
30 E. Broad Street, 25th Floor
|
||||
Columbus, Ohio 43215
|
||||
Tel.: (614) 466-2766
|
||||
Fax: (614) 644-1926
|
||||
Email: dale.vitale@ohioattorneygeneral.gov
|
|
KENNETH T. CUCCINELLI, II
|
|||
ATTORNEY GENERAL
|
||||
Date:
|
By:
|
|||
|
|
Kerri L. Nicholas, VSB # 47230
|
||
Assistant Attorney General
|
||||
Environmental Section
|
||||
Virginia Office of the Attorney General
|
||||
900 East Main Street
|
||||
Richmond, Virginia 23219
|
||||
(804) 371-8721
|
||||
knicholas@oag.staet.va.us
|
CATHY STEPP
|
|||
Secretary
|
|||
Date:
|
|||
MATT MORONEY
|
|||
Deputy Secretary
|
|||
Wisconsin Department of Natural Resources
|
|||
Approved as to form:
|
|||
J.B. VAN HOLLEN
|
|||
Attorney General
|
|||
Date:
|
|||
ANNE C. MURPHY
|
|||
Assistant Attorney General
|
|||
State Bar # 1031600
|
|||
Attorneys for the State of Wisconsin
|
|||
Date:
|
|||
Cheryl Sonnier Nolan
|
|||
Assistant Secretary
|
|||
Office of Environmental Services
|
|||
Louisiana Department of Environmental Quality
|
MASSACHUSETTS DEPARTMENT OF ENVIRONMENTAL PROTECTION
|
|||
By its attorney,
|
|||
MARTHA COAKLEY,
|
|||
ATTORNEY GENERAL
|
|||
MASSACHUSETTS DEPARTMENT OF ENVIRONMENTAL PROTECTION
|
|||
Date:
|
By:
|
||
Carol Iancu, MA BBO # 635626
|
|||
Assistant Attorney General
|
|||
Environmental Protection Division
|
|||
Massachusetts Office of the Attorney General
|
|||
One Ashburton Place, 18th Floor
|
|||
Boston, MA 02108
|
|||
(617) 963-2428
|
|||
carol.iancu@state.ma.us
|
|||
Date:
|
|||
Susan Shinkman
|
|||
Chief Counsel
|
|||
Office of Chief Counsel
|
|||
Rachel Carson State Office Building
|
|||
400 Market Street
|
|||
Harrisburg, Pennsylvania 17101-2301
|
Date:
|
|||
McNAMEE, LOCHNER, TITUS
|
|||
& WILLIAMS, P.C.
|
|||
John J. Privitera, Esq.
|
|||
Jacob F. Lamme, Esq.
|
|||
677 Broadway
|
|||
Albany, New York 12207
|
|||
Tel.: (518) 447-3200
|
|||
Fax: (518) 426-4260
|
SECTION 1 — Agreement of Trust
|
3
|
||
1.1
|
Creation and Name
|
3
|
|
1.2
|
Purpose
|
3
|
|
1.3
|
Transfer of Assets
|
3
|
|
1.4
|
Acceptance of Assets and Assumption of Liabilities
|
4
|
|
1.5
|
Certain Tax Matters
|
4
|
|
SECTION 2 — Powers and Trust Administration
|
5
|
||
2.1
|
Powers
|
5
|
|
2.2
|
General Administration
|
8
|
|
2.3
|
Claims Administration
|
12
|
|
SECTION 3 — Accounts, Investments, and Payments
|
12
|
||
3.1
|
Accounts
|
12
|
|
3.2
|
Investments
|
13
|
|
3.3
|
Source of Payments
|
15
|
|
SECTION 4 — Trustee; Delaware Trustee
|
15
|
||
4.1
|
Number
|
15
|
|
4.2
|
Term of Service
|
16
|
|
4.3
|
Appointment of Successor Trustee
|
16
|
|
4.4
|
Liability of Trustee, Members of the TAC and
|
||
the Futures Representative
|
17
|
||
4.5
|
Compensation and Expenses of Trustee
|
17
|
|
4.6
|
Indemnification
|
18
|
|
4.7
|
Lien
|
19
|
|
4.8
|
Trustee’s Employment of Experts; Delaware Trustee’s Employment of Counsel
|
19
|
|
4.9
|
Trustee’s Independence
|
20
|
|
4.10
|
Bond
|
20
|
|
4.11
|
Delaware Trustee
|
20
|
SECTION 5 — Trust Advisory Committee
|
22
|
||
5.1
|
Members
|
22
|
|
5.2
|
Duties
|
22
|
|
5.3
|
Term of Office
|
22
|
|
5.4
|
Appointment of Successor
|
23
|
|
5.5
|
TAC’s Employment of Professionals
|
24
|
|
5.6
|
Compensation and Expenses of the TAC
|
25
|
|
5.7
|
Procedures for Consultation With and Obtaining the Consent of the TAC
|
26
|
|
(a)
|
Consultation Process
|
26
|
|
(b)
|
Consent Process
|
27
|
|
SECTION 6 — The Futures Representative
|
28
|
||
6.1
|
Duties
|
28
|
|
6.2
|
Term of Office
|
28
|
|
6.3
|
Appointment of Successor
|
29
|
|
6.4
|
Futures Representative’s Employment of Professionals
|
29
|
|
6.5
|
Compensation and Expenses of the Futures Representative
|
30
|
|
6.6
|
Procedures for Consultation with and Obtaining the Consent of the Futures Representative
|
31
|
|
(a)
|
Consultation Process
|
31
|
|
(b)
|
Consent Process
|
32
|
|
SECTION 7 — General Provisions
|
33
|
||
7.1
|
Irrevocability
|
33
|
|
7.2
|
Term; Termination
|
33
|
|
7.3
|
Amendments
|
35
|
|
7.4
|
Meetings
|
36
|
|
7.5
|
Severability
|
36
|
|
7.6
|
Notices
|
36
|
|
7.7
|
Successors and Assigns
|
38
|
|
7.8
|
Limitation on Claim Interests for Securities Laws Purposes
|
38
|
|
7.9
|
Entire Agreement; No Waiver
|
39
|
|
7.10
|
Headings
|
39
|
|
7.11
|
Governing Law
|
39
|
|
7.12
|
Settlors’ Representative and Cooperation
|
39
|
|
7.13
|
Dispute Resolution
|
39
|
|
7.14
|
Enforcement and Administration
|
40
|
|
7.15
|
Effectiveness
|
40
|
|
7.16
|
Counterpart Signatures
|
40
|
5.5
|
TAC’s Employment of Professionals.
|
(a)
|
Consultation Process.
|
(b)
|
Consent Process.
|
6.2
|
Term of Office.
|
|
6.6
|
Procedures for Consultation with and Obtaining the Consent of the Futures Representative.
|
(a)
|
Consultation Process.
|
(b)
|
Consent Process.
|
Hon. Dean M. Trafelet (Ret.)
P.O. Box 518
9130 Wild Lane
Baileys Harbor, WI 54202
Fax: (920) 839-9438
dtrafelet@sbcglobal.net
|
and
|
Hon. Dean M. Trafelet (Ret.)
50 West Schiller
Chicago, IL 60610
Fax: (312) 335-8015
|
Motors Liquidation Company | MLCS Distribution Corporation | |||||
By: | /s/ Ted Stenger | By: |
/s/ Ted Stenger
|
|||
|
|
|||||
Title: |
EVP
|
Title: |
EVP
|
MLC of Harlem, Inc. |
Remediation and Liability Management
Company, Inc.
|
|||||
By: |
/s/ Ted Stenger
|
By: |
/s/ Ted Stenger
|
|||
|
|
|||||
Title: |
EVP
|
Title: |
EVP
|
MLCS, LLC |
Environmental Corporate Remediation
Company, Inc.
|
|||||
By: |
/s/ Ted Stenger
|
By: |
/s/ Ted Stenger
|
|||
|
|
|||||
Title: |
EVP
|
Title: |
EVP
|
TRUSTEE | ACC | |||||
/s/ Kirk P. Watson | By: | (ILLEGIBLE SIGNATURE) | ||||
Name: Kirk P. Watson, Esq. |
|
DELAWARE TRUSTEE
|
||||||
|
By: |
(ILLEGIBLE SIGNATURE)
|
TRUST ADVISORY COMMITTEE
/s/ John D Cooney_________________________________
Name: John D. Cooney, Esq.
Expiration Date of Initial Term: _3rd__ Anniversary of
the date of this PI Trust Agreement
/s/ Steven Kazan__________________________________
Name: Steven Kazan, Esq.
Expiration Date of Initial Term: _5th__ Anniversary of
the date of this PI Trust Agreement
/s/ Perry Weitz___________________________________
Name: Perry Weitz, Esq.
Expiration Date of Initial Term: _4th__ Anniversary of
the date of this PI Trust Agreement
|
|
FUTURES REPRESENTATIVE
/s/ Dean M. Trafelet_______________________________
Hon. Dean M. Trafelet (Ret.)
|
D = (
|
A
------
C
|
) x G
|
|
D
|
is the distribution that the holder of an Initial Allowed General Unsecured Claim (or the holder of a Resolved Allowed General Unsecured Claim pursuant to Section 5.3(c)) will be entitled to receive;
|
|
A
|
is the amount of the Initial Allowed General Unsecured Claim (or the holder of a Resolved Allowed General Unsecured Claim pursuant to Section 5.3(c));
|
|
C
|
is the Current Total Amount as of the last day of the calendar quarter next preceding the respective Distribution Date; and
|
|
G
|
is the amount available for distribution determined as of the last day of the calendar quarter next preceding the respective Distribution Date, after taking account of any Holdback, or the application of such Holdback, pursuant to Section 6.1(b).
|
|
DU
|
is the distribution of Excess GUC Distributable Trust Assets that a holder of Units will be entitled to receive;
|
|
UH
|
is the number of Units held by the holder;
|
|
UO
|
is the total number of Units outstanding (including Units distributed to holders of Resolved Allowed General Unsecured Claims pursuant to Section 5.3(b)(ii) on such Distribution Date);
|
|
is the sum of the amounts that are or were available for distribution to holders of Initial Allowed General Unsecured Claims (and holders of Resolved Allowed General Unsecured Claims pursuant to Section 5.3(c)) on the relevant Distribution Date and each prior Distribution Date;
|
|
TU
|
is the Total Allowed Amount as of the Excess GUC Distributable Trust Assets Determination Date;
|
|
CU
|
is the Current Total Amount as of the Excess GUC Distributable Trust Assets Determination Date;
|
|
L
|
is the aggregate amount of all (i) Disputed General Unsecured Claims disallowed since the next preceding Excess GUC Distributable Trust Assets Determination Date (or, in the case of the first Excess GUC Distributable Trust Assets Determination Date, since the Initial GUC Record Date), (ii) Unresolved Term Loan Avoidance Action Claims to the extent resolved (including by way of settlement) in favor of the respective defendants since the next preceding Excess GUC Distributable Trust Assets Determination Date (or, in the case of the first Excess GUC Distributable Trust Assets Determination Date, since the Initial GUC Record Date); and (iii) all Unresolved Other Avoidance Action Claims to the extent resolved (including by way of settlement) in favor of the respective defendants since the next preceding Excess GUC Distributable Trust Assets Determination Date (or, in the case of the first Excess GUC Distributable Trust Assets Determination Date, since the Initial GUC Record Date); and
|
|
H
|
is the amount, if any, of any holdback pursuant to Section 6.1 that was not otherwise deducted from the amounts available for distribution on a Distribution Date.
|
(1)
|
in the case of a DIP Lender,
|
(2)
|
in the case of a holder of an Allowed General Unsecured Claim, to the last known address of such holder according to the Debtors’ Schedules and/or such holder’s proof of claim; and
|
(3)
|
in the case of holder of Units, to such address as appears on the books and records of the Trust Administrator, or such other address as may be designated from time to time by notice given in accordance with the provisions of this Section 13.6.
|
Motors Liquidation Company | ||||
|
By:
|
/s/ Ted Stenger | ||
Name: | Ted Stenger | |||
Title: | Executive Vice President | |||
MLC of Harlem, Inc.
|
||||
|
By:
|
/s/ Ted Stenger | ||
Name: | Ted Stenger | |||
Title: | Executive Vice President | |||
MLCS, LLC | ||||
|
By:
|
/s/ Ted Stenger | ||
Name: | Ted Stenger | |||
Title: | Executive Vice President | |||
MLCS Distribution Corporation | ||||
|
By:
|
/s/ Ted Stenger | ||
Name: | Ted Stenger | |||
Title: | Executive Vice President | |||
Remediation and Liability Management Company, Inc. | ||||
|
By:
|
/s/ Ted Stenger | ||
Name: | Ted Stenger | |||
Title: | Executive Vice President | |||
Environmental Corporate Remediation Company, Inc. | ||||
|
By:
|
/s/ Ted Stenger | ||
Name: | Ted Stenger | |||
Title: | Executive Vice President | |||
Wilmington Trust Company, as
Trust Administrator and trustee
|
||||
|
By:
|
/s/ Ted Stenger | ||
Name: | David A. Vanaskey, Jr. | |||
Title: | Vice President | |||
– and –
|
FTI Consulting, Inc., as Trust Monitor
|
||||
|
By:
|
/s/ Ted Stenger | ||
Name: | Anna Phillips | |||
Title: | Senior Managing Director |
In re | Chapter 11 | |
MOTORS LIQUIDATION COMPANY, et al., | Case No. 09-50026 (REG) | |
f/k/a General Motors Corp., et al. | ||
Debtors. | (Jointly Administered) | |
(i)
|
any action to enforce their rights under this Harvey & Knott Settlement Agreement;
|
(ii)
|
any claim or cause of action for response costs and injunctive relief under CERCLA Sections 106 and 107, RCRA Sections 3008, 7002 and 7003or state environmental law for future acts taken by the Debtors after the Effective Date that create liability under CERCLA, RCRA, or state law;
|
(iii)
|
criminal liability;
|
(iv)
|
any general unsecured claim arising from damages or injury to, destruction of, or loss of natural resources, and for the costs of any natural resource damage assessments; and
|
(v)
|
all rights with respect to any site that is not the Priority Order Site.
|
FOR THE UNITED STATES:
|
PREET BHARARA
|
|
|
United States Attorney for the
|
|
|
Southern District of New York
|
|
|
|
|
|
/s/ ROBERT G. DREHER
|
/s/ Natalie N. Kuehler | |||
ROBERT G. DREHER
|
David S. Jones
|
|||
Acting Assistant Attorney General
|
Natalie N. Kuehler
|
|||
Environment and Natural Resources
|
Assistant U.S. Attorneys
|
|||
Division
|
86 Chambers St., 3rd Floor
|
|||
U.S. Department of Justice
|
New York, NY 10007
|
|||
|
||||
Date:
|
12/13/10 |
Date:
|
12/13/10 | |
/s/ Alan S. Tenenbaum
|
||||
Alan S. Tenenbaum
|
||||
National Bankruptcy Coordinator
|
||||
Patrick Casey
|
||||
Senior Counsel
|
||||
Environment and Natural Resources Division
|
||||
Environmental Enforcement Section
|
||||
U.S. Department of Justice
|
||||
Date:
|
12/14 /10 | |||
/s/ Cynthia Giles | ||||
Cynthia Giles | ||||
Assistant Administrator
|
||||
Office of Enforcement and Compliance
|
||||
Assurance
|
||||
U.S. Environmental Protection Agency
|
||||
Date:
|
11/17 /10 |
Date:
|
/s/ Ted Stenger
|
||
Ted Stenger
|
|||
Executive Vice President
|
|||
Motors Liquidation Company, as agent for
each of the foregoing entities,
|
|||
500 Renaissance Center, Suite 1400
|
|||
Detroit, MI 48243
|
|||
Tel.: (313) 486-4044
|
|||
Fax: (313) 486-4259
|
|||
Email: tstenger@alixpartners.com
|
|||
|
/s/ Jim M. Redwine
|
||
Jim M. Redwine
|
|||
Vice President of Environmental Affairs
|
|||
Motors Liquidation Company, as agent for
each of the foregoing entities
|
|||
Date:
|
12/6/10 |
/s/ David R. Berz
|
|
David R. Berz
|
|||
Weil, Gotshal & Manges LLP
|
|||
Attorneys for Debtors and Debtors in Possession
|
|||
1300 Eye Street, NW, Suite 900
|
|||
Washington, D.C. 20005
|
|||
Tel.: (202) 682-7000
|
|||
Fax: (202) 857-0939
|
|||
Email: david.berz@weil.com
|
In re | Chapter 11 | |
MOTORS LIQUIDATION COMPANY, et al., | Case No. 09-50026 (REG) | |
f/k/a General Motors Corp., et al. | ||
Debtors. | (Jointly Administered) | |
(i)
|
any action to enforce their rights under this Sioux City Site Settlement Agreement;
|
(ii)
|
any claim or cause of action for response costs and injunctive relief under CERCLA Sections 106 and 107, RCRA Sections 3008, 7002 and 7003, or state environmental law for future acts taken by the Debtors after the Effective Date that create liability under CERCLA, RCRA, or state law;
|
(iii)
|
criminal liability; and
|
(iv)
|
all rights with respect to any site that is not the Priority Order Site.
|
FOR THE UNITED STATES:
|
PREET BHARARA
|
|
|
United States Attorney for the
|
|
|
Southern District of New York
|
|
|
|
|
|
/s/ Robert G. Dreher | /s/ Natalie N. Kuehler | |||
Robert G. Dreher
|
David S. Jones
|
|||
Acting Assistant Attorney General
|
Natalie N. Kuehler
|
|||
Environment and Natural Resources
|
Assistant U.S. Attorneys
|
|||
Division
|
86 Chambers St., 3rd Floor
|
|||
U.S. Department of Justice
|
New York, NY 10007
|
|||
|
||||
Date:
|
12/13/10 |
Date:
|
12/14/10 | |
/s/ Alan S. Tenenbaum | ||||
Alan S. Tenenbaum
|
||||
National Bankruptcy Coordinator
|
||||
Patrick Casey
|
||||
Senior Counsel
|
||||
Environment and Natural Resources Division
|
||||
Environmental Enforcement Section
|
||||
U.S. Department of Justice
|
||||
Date:
|
12/14/10 | |||
/s/ Cynthia Giles | ||||
Cynthia Giles | ||||
Assistant Administrator
|
||||
Office of Enforcement and Compliance
|
||||
Assurance
|
||||
U.S. Environmental Protection Agency
|
||||
Date:
|
11/29/10 |
|
By:
|
/s/ Wayne Gresilman for David L. Dorff | By: |
/s/ David L. Dorff
|
|
Patricia L. Boddy, Interim Director |
David L. Dorff
|
|||
Iowa Department of Natural Resources |
Assistant Attorney General
|
|||
Environmental Law Division
|
||||
Office of the Attorney General
|
||||
321 E. 12th St., Room 018 | ||||
Des Moines, IA 50319
|
||||
Tel.: (515) 281-5351
|
||||
Fax: (515) 242-6072
|
||||
Email: ddorff@ag.state.is.us | ||||
Date:
|
12-3-10 | Date: | 12/3/10 | |
|
||||
|
||||
|
Date:
|
/s/ Ted Stenger | ||
Ted Stenger
|
|||
Executive Vice President
|
|||
Motors Liquidation Company, as agent for
each of the foregoing entities,
|
|||
500 Renaissance Center, Suite 1400
|
|||
Detroit, MI 48243
|
|||
Tel.: (313) 486-4044
|
|||
Fax: (313) 486-4259
|
|||
Email: tstenger@alixpartners.com
|
|||
Date:
|
/s/ James M. Redwine | ||
James M. Redwine
|
|||
Vice President of Environmental Affairs
|
|||
Motors Liquidation Company, as agent for
|
each of the foregoing entities | |||
Date:
|
12/6/10 | /s/ David R. Berz | |
David R. Berz
|
|||
Weil, Gotshal & Manges LLP
|
|||
Attorneys for Debtors and Debtors in Possession
|
|||
1300 Eye Street, NW, Suite 900
|
|||
Washington, D.C. 20005
|
|||
Tel.: (202) 682-7000
|
|||
Fax: (202) 857-0939
|
|||
Email: david.berz@weil.com
|
In re | Chapter 11 | |
MOTORS LIQUIDATION COMPANY, et al., | Case No. 09-50026 (REG) | |
f/k/a General Motors Corp., et al. | ||
Debtors. | (Jointly Administered) | |
(i)
|
any action to enforce their rights under this Scatterfield Settlement Agreement;
|
(ii)
|
any claim or cause of action for response costs and injunctive relief under CERCLA Sections 106 and 107, RCRA Sections 3008, 7002 and 7003 or state environmental law for future acts taken by the Debtors after the Effective Date that create liability under CERCLA, RCRA, or state law;
|
(iii)
|
criminal liability; and
|
(iv)
|
all rights with respect to any site that is not the Priority Order Site.
|
FOR THE UNITED STATES:
|
PREET BHARARA
|
|
|
United States Attorney for the
|
|
|
Southern District of New York
|
|
|
|
|
|
/s/ Robert G. Dreher | /s/ Natalie N. Kuehler | |||
Robert G. Dreher
|
David S. Jones
|
|||
Acting Assistant Attorney General
|
Natalie N. Kuehler
|
|||
Environment and Natural Resources
|
Assistant U.S. Attorneys
|
|||
Division
|
86 Chambers St., 3rd Floor
|
|||
U.S. Department of Justice
|
New York, NY 10007
|
|||
|
||||
Date:
|
12/13/10 |
Date:
|
12/16/10 | |
/s/ | ||||
Alan S. Tenenbaum
|
||||
National Bankruptcy Coordinator
|
||||
Patrick Casey
|
||||
Senior Counsel
|
||||
Environment and Natural Resources Division
|
||||
Environmental Enforcement Section
|
||||
U.S. Department of Justice
|
||||
Date:
|
12/14/10 | |||
/s/ Cynthia Giles | ||||
Cynthia Giles | ||||
Assistant Administrator
|
||||
Office of Enforcement and Compliance
|
||||
Assurance
|
||||
U.S. Environmental Protection Agency
|
||||
Date:
|
11/17/10 |
Indiana Department of | Gregory F. Zoeller, | |||
Environmental Management |
Attorney General of Indiana
|
|||
Atty. No. 1958-98
|
||||
|
||||
|
||||
By: | /s/ Thomas W. Easterly | By: | /s/ Patricia Orloff Erdman | |
Thomas W. Easterly |
Patricia Orloff Erdman
|
|||
Commissioner |
Chief COunsel for Litigation
|
|||
Atty No. 17664-49A | ||||
Ind. Dept. of Environmental Mgmt | ||||
100 North Senate Avenue | ||||
MC 50-01, ICGN 1301 | ||||
|
By: | /s/ Timothy J. Junk | ||
Timothy J. Junk
|
||||
Deputy Attorney General
|
||||
Atty. No. 5587-02
|
||||
Office of the Attorney General | ||||
|
Indiana Government Center South, | |||
Fifth Floor | ||||
302 West Washington Street | ||||
Indianapolis, IN 46204 | ||||
Date:
|
November 15, 2010 |
Date:
|
/s/ Ted Stenger | ||
Ted Stenger
|
|||
Executive Vice President
|
|||
Motors Liquidation Company, as agent for
each of the foregoing entities,
|
|||
500 Renaissance Center, Suite 1400
|
|||
Detroit, MI 48243
|
|||
Tel.: (313) 486-4044
|
|||
Fax: (313) 486-4259
|
|||
Email: tstenger@alixpartners.com
|
Date:
|
/s/ James M. Redwine | ||
James M. Redwine
|
|||
Vice President of Environmental Affairs
|
|||
Motors Liquidation Company, as agent for
each of the foregoing entities
|
Date:
|
12/6/10 | /s/ David R. Berz | |
David R. Berz
|
|||
Weil, Gotshal & Manges LLP
|
|||
Attorneys for Debtors and Debtors in Possession
|
|||
1300 Eye Street, NW, Suite 900
|
|||
Washington, D.C. 20005
|
|||
Tel.: (202) 682-7000
|
|||
Fax: (202) 857-0939
|
|||
Email: david.berz@weil.com
|
In re | Chapter 11 | |
MOTORS LIQUIDATION COMPANY, et al., | Case No. 09-50026 (REG) | |
f/k/a General Motors Corp., et al. | ||
Debtors. | (Jointly Administered) | |
(i)
|
any action to enforce their rights under this Delphi Harrison Settlement Agreement;
|
(ii)
|
any claim or cause of action for response costs and injunctive relief under CERCLA Sections 106 and 107, RCRA Sections 3008, 7002 and 7003 or state environmental law for future acts taken by the Debtors after the Effective Date that create liability under CERCLA, RCRA, or state law;
|
(iii)
|
criminal liability; and
|
(iv)
|
all rights with respect to any site that is not the Priority Order Site.
|
FOR THE UNITED STATES:
|
PREET BHARARA
|
|
|
United States Attorney for the
|
|
|
Southern District of New York
|
|
|
|
|
|
/s/ Robert G. Dreher | /s/ Natalie N. Kuehler | |||
Robert G. Dreher
|
David S. Jones
|
|||
Acting Assistant Attorney General
|
Natalie N. Kuehler
|
|||
Environment and Natural Resources
|
Assistant U.S. Attorneys
|
|||
Division
|
86 Chambers St., 3rd Floor
|
|||
U.S. Department of Justice
|
New York, NY 10007
|
|||
|
||||
Date:
|
12/13/10 |
Date:
|
12/14/2010 | |
/s/ Alan S. Tenenbaum | ||||
Alan S. Tenenbaum
|
||||
National Bankruptcy Coordinator
|
||||
Patrick Casey
|
||||
Senior Counsel
|
||||
Environment and Natural Resources Division
|
||||
Environmental Enforcement Section
|
||||
U.S. Department of Justice
|
||||
Date:
|
12/14/10 | |||
/s/ Cynthia Giles | ||||
Cynthia Giles | ||||
Assistant Administrator
|
||||
Office of Enforcement and Compliance
|
||||
Assurance
|
||||
U.S. Environmental Protection Agency
|
||||
Date: | 11/17/10 |
Date:
|
11/22/10 | /s/ Michelle T. Sutter | ||
RICHARD CORDRAY
|
||||
Attorney General for the State of Ohio
|
||||
|
||||
By: |
|
|||
Michelle T. Sutter | ||||
Principal Assistant Attorney General | ||||
30 E. Broad Street, 25th Floor
|
||||
Columbus, Ohio 43215
|
||||
Tel.: (614) 466-2766 | ||||
Fax: (614) 483-1104 | ||||
Email:michelle.sutter@ohioattorneygeneral.gov |
Date:
|
/s/ Ted Stenger | ||
Ted Stenger
|
|||
Executive Vice President
|
|||
Motors Liquidation Company, as agent for
each of the foregoing entities,
|
|||
500 Renaissance Center, Suite 1400
|
|||
Detroit, MI 48243
|
|||
Tel.: (313) 486-4044
|
|||
Fax: (313) 486-4259
|
|||
Email: tstenger@alixpartners.com
|
|||
Date:
|
/s/ James M. Redwine | ||
James M. Redwine
|
|||
Vice President of Environmental Affairs
|
|||
Motors Liquidation Company, as agent for
each of the foregoing entities,
|
Date:
|
12/6/10 | /s/ David R. Berz | |
David R. Berz
|
|||
Weil, Gotshal & Manges LLP
|
|||
Attorneys for Debtors and Debtors in Possession
|
|||
1300 Eye Street, NW, Suite 900
|
|||
Washington, D.C. 20005
|
|||
Tel.: (202) 682-7000
|
|||
Fax: (202) 857-0939
|
|||
Email: david.berz@weil.com
|
In re | Chapter 11 | |
MOTORS LIQUIDATION COMPANY, et al., | Case No. 09-50026 (REG) | |
f/k/a General Motors Corp., et al. | ||
Debtors. | (Jointly Administered) | |
(i)
|
any action to enforce their rights under this Garland Road Settlement Agreement;
|
(ii)
|
any claim or cause of action for response costs and injunctive relief under CERCLA Sections 106 and 107, RCRA Sections 3008, 7002 and 7003 or state environmental law for future acts taken by the Debtors after the Effective Date that create liability under CERCLA, RCRA, or state law;
|
(iii)
|
criminal liability; and
|
(iv)
|
all rights with respect to any site that is not the Priority Order Site.
|
FOR THE UNITED STATES:
|
PREET BHARARA
|
|
|
United States Attorney for the
|
|
|
Southern District of New York
|
|
|
|
|
|
/s/ Robert G. Dreher | /s/ | |||
Robert G. Dreher
|
David S. Jones
|
|||
Acting Assistant Attorney General
|
Natalie N. Kuehler
|
|||
Environment and Natural Resources
|
Assistant U.S. Attorneys
|
|||
Division
|
86 Chambers St., 3rd Floor
|
|||
U.S. Department of Justice
|
New York, NY 10007
|
|||
|
||||
Date:
|
12/13/10 |
Date:
|
12/14/2010 | |
/s/ Alan S. Tenenbaum | ||||
Alan S. Tenenbaum
|
||||
National Bankruptcy Coordinator
|
||||
Patrick Casey
|
||||
Senior Counsel
|
||||
Environment and Natural Resources Division
|
||||
Environmental Enforcement Section
|
||||
U.S. Department of Justice
|
||||
Date:
|
12/14/10 | |||
/s/ Cynthia Giles | ||||
Cynthia Giles | ||||
Assistant Administrator
|
||||
Office of Enforcement and Compliance
|
||||
Assurance
|
||||
U.S. Environmental Protection Agency
|
||||
Date: | 11/17/10 |
Date:
|
11/22/10 | /s/ Michelle T. Sutter | ||
RICHARD CORDRAY
|
||||
Attorney General for the State of Ohio
|
||||
|
||||
By: |
|
|||
Michelle T. Sutter | ||||
Principal Assistant Attorney General | ||||
30 E. Broad Street, 25th Floor
|
||||
Columbus, Ohio 43215
|
||||
Tel.: (614) 466-2766 | ||||
Fax: (614) 483-1104 | ||||
Email:michelle.sutter@ohioattorneygeneral.gov |
Date:
|
/s/ Ted Stenger | ||
Ted Stenger
|
|||
Executive Vice President
|
|||
Motors Liquidation Company, as agent for
each of the foregoing entities,
|
|||
500 Renaissance Center, Suite 1400
|
|||
Detroit, MI 48243
|
|||
Tel.: (313) 486-4044
|
|||
Fax: (313) 486-4259
|
|||
Email: tstenger@alixpartners.com
|
|||
Date:
|
/s/ James M. Redwine | ||
James M. Redwine
|
|||
Vice President of Environmental Affairs
|
|||
Motors Liquidation Company, as agent for
each of the foregoing entities
|
Date:
|
12/6/10 | /s/ David R. Berz | |
David R. Berz
|
|||
Weil, Gotshal & Manges LLP
|
|||
Attorneys for Debtors and Debtors in Possession
|
|||
1300 Eye Street, NW, Suite 900
|
|||
Washington, D.C. 20005
|
|||
Tel.: (202) 682-7000
|
|||
Fax: (202) 857-0939
|
|||
Email: david.berz@weil.com
|
In re | Chapter 11 | |
MOTORS LIQUIDATION COMPANY, et al., | Case No. 09-50026 (REG) | |
f/k/a General Motors Corp., et al. | ||
Debtors. | (Jointly Administered) | |
(i)
|
any action to enforce their rights under this Wheeler Pit Settlement Agreement;
|
(ii)
|
any claim or cause of action for response costs and injunctive relief under CERCLA Sections 106 and 107, RCRA Sections 3008, 7002 and 7003 or state environmental law for future acts taken by the Debtors after the Effective Date that create liability under CERCLA, RCRA, or state law;
|
(iii)
|
criminal liability; and
|
(iv)
|
all rights with respect to any site that is not the Priority Owned Site.
|
FOR THE UNITED STATES:
|
PREET BHARARA
|
|
|
United States Attorney for the
|
|
|
Southern District of New York
|
|
|
|
|
|
/s/ Robert G. Dreher | /s/ | |||
Robert G. Dreher
|
David S. Jones
|
|||
Acting Assistant Attorney General
|
Natalie N. Kuehler
|
|||
Environment and Natural Resources
|
Assistant U.S. Attorneys
|
|||
Division
|
86 Chambers St., 3rd Floor
|
|||
U.S. Department of Justice
|
New York, NY 10007
|
|||
|
||||
Date:
|
12/13/10 |
Date:
|
12/14/2010 | |
/s/ Alan S. Tenenbaum | ||||
Alan S. Tenenbaum
|
||||
National Bankruptcy Coordinator
|
||||
Patrick Casey
|
||||
Senior Counsel
|
||||
Environment and Natural Resources Division
|
||||
Environmental Enforcement Section
|
||||
U.S. Department of Justice
|
||||
Date:
|
12/14/10 | |||
/s/ Cynthia Giles | ||||
Cynthia Giles | ||||
Assistant Administrator
|
||||
Office of Enforcement and Compliance
|
||||
Assurance
|
||||
U.S. Environmental Protection Agency
|
||||
Date: | 11/17/10 |
J.B. VAN HOLLEN
|
||||
Attorney General
|
||||
|
||||
|
||||
Date: | 12/2/10 | By: | /s/ | |
ANNE C. MURPHY
|
||||
Assistant Attorney General
|
||||
Department of Justice
|
||||
P.O. Box 7857
|
||||
|
Madison, WI 53707-7857
|
|||
MATTHEW J. FRANK
|
||||
Secretary
|
||||
Date:
|
12/2/10 | By: | /s/ ALLEN K. SHEA | |
ALLEN K. SHEA
|
||||
Deputy Secretary
|
||||
Wisconsin Department of Natural Resources
|
||||
P.O. Box 7921
|
||||
Madison, WI 53707-7921
|
Date:
|
/s/ Ted Stenger | ||
Ted Stenger
|
|||
Executive Vice President
|
|||
Motors Liquidation Company, as agent for
each of the foregoing entities,
|
|||
500 Renaissance Center, Suite 1400
|
|||
Detroit, MI 48243
|
|||
Tel.: (313) 486-4044
|
|||
Fax: (313) 486-4259
|
|||
Email: tstenger@alixpartners.com
|
Date:
|
/s/ James M. Redwine | ||
James M. Redwine
|
|||
Vice President of Environmental Affairs
|
|||
Motors Liquidation Company, as agent for
each of the foregoing entities
|
Date:
|
12/6/10 | /s/ David R. Berz | |
David R. Berz
|
|||
Weil, Gotshal & Manges LLP
|
|||
Attorneys for Debtors and Debtors in Possession
|
|||
1300 Eye Street, NW, Suite 900
|
|||
Washington, D.C. 20005
|
|||
Tel.: (202) 682-7000
|
|||
Fax: (202) 857-0939
|
|||
Email: david.berz@weil.com
|
In re | Chapter 11 | |
MOTORS LIQUIDATION COMPANY, et al., | Case No. 09-50026 (REG) | |
f/k/a General Motors Corp., et al. | ||
Debtors. | (Jointly Administered) | |
a.
|
“Allowed General Unsecured Claim” has the meaning set forth in the Plan of Liquidation.
|
b.
|
“Bankruptcy” has the meaning set forth in the recitals.
|
c.
|
“Bankruptcy Code” has the meaning set forth in the recitals.
|
d.
|
“Bankruptcy Court” or the “Court” has the meaning set forth in the recitals.
|
e.
|
“CERCLA” has the meaning set forth in the recitals.
|
f.
|
“Claim” has the meaning provided in section 101(5) of the Bankruptcy Code.
|
g.
|
“Effective Date” means the date an order is entered by the Bankruptcy Court approving this Settlement Agreement.
|
h.
|
“EPA” has the meaning set forth in the recitals.
|
i.
|
“EPA Allowed Claim” means the total amount of Allowed General Unsecured Claims by EPA in settlement and satisfaction of its claims concerning the Settled Non-Owned Sites.
|
j.
|
“GUC Trust” has the meaning set forth in the Plan.
|
k.
|
“Hazardous Substance Superfund” means the Hazardous Substance Superfund established by 26 U.S.C. § 9507.
|
l.
|
“Initial Distribution” has the meaning set forth in the Plan.
|
m.
|
“MLC” has the meaning set forth in the recitals.
|
n.
|
“New Proof of Claim” means the proof of claim filed by the United States within thirty days after the Effective Date concerning any sites not resolved by this or any other settlement agreement between the United States and Debtors.
|
o.
|
“NPL” means the National Priorities List, 40 C.F.R. Part 300.
|
p.
|
“Parties” has the meaning set forth in the recitals.
|
q.
|
“Petition Date” means June 1, 2009, in the case of the Initial Debtors, and October 9, 2009, in the case of REALM and ENCORE.
|
r.
|
“Plan of Liquidation” or “Plan” means the Debtors’ Joint Chapter 11 Plan, dated August 31, 2010 (as revised, amended, and supplemented from time to time).
|
s.
|
“Settlement Agreement” means this Consent Decree and Settlement Agreement between the Debtors and the United States of America.
|
t.
|
“Settled Non-Owned Sites” has the meaning set forth in the recitals.
|
u.
|
“United States” means the United States of America and all of its agencies, departments, and instrumentalities, including EPA, DOI and NOAA.
|
v.
|
“U.S. Proof of Claim” has the meaning set forth in the recitals.
|
FOR THE UNITED STATES:
|
PREET BHARARA
|
|
|
United States Attorney for the
|
|
|
Southern District of New York
|
|
|
|
|
|
Robert G. Dreher
|
David S. Jones
|
|||
Acting Assistant Attorney General
|
Natalie N. Kuehler
|
|||
Environment and Natural Resources
|
Assistant U.S. Attorneys
|
|||
Division
|
86 Chambers St., 3rd Floor
|
|||
U.S. Department of Justice
|
New York, NY 10007
|
|||
|
||||
Date:
|
Date:
|
|||
Alan S. Tenenbaum
|
||||
National Bankruptcy Coordinator
|
||||
Patrick Casey
|
||||
Senior Counsel
|
||||
Environment and Natural Resources Division
|
||||
Environmental Enforcement Section
|
||||
U.S. Department of Justice
|
||||
Date:
|
||||
Cynthia Giles | ||||
Assistant Administrator
|
||||
Office of Enforcement and Compliance
|
Date:
|
Date:
|
|||
Ted Stenger
|
|||
Executive Vice President
|
|||
Motors Liquidation Company, as agent for
each of the foregoing entities,
|
|||
401 South Old Woodward Avenue
|
|||
Suite 370
|
|||
Birmingham, MI 48009
|
|||
Tel.: (313) 486-4044
|
|||
Fax: (313) 486-4259
|
|||
Email: tstenger@alixpartners.com
|
Date:
|
|||
James M. Redwine
|
|||
Vice President of Environmental Affairs
|
|||
Motors Liquidation Company, as agent for
each of the foregoing entities
|
401 South Old Woodward Avenue
|
|||
Suite 370
|
|||
Birmingham, MI 48009
|
|||
Tel.: (214) 906-2146
|
|||
Fax: (313) 486-4259
|
|||
Email: jredwine@alixpartners.com
|
Date:
|
|||
David R. Berz
|
|||
Weil, Gotshal & Manges LLP
|
|||
Attorneys for Debtors and Debtors in Possession
|
|||
1300 Eye Street, NW, Suite 900
|
Washington, D.C. 20005
|
|||
Tel.: (202) 682-7000
|
|||
Fax: (202) 857-0939
|
|||
Email: david.berz@weil.com
|
Motors Liquidation Company
401 S. Old Woodward Ave.
Suite 370
Birmingham, MI 48009
Phone: 313.486.4044
Fax: 313.486.4259
|
www.motorsliquidation.com
|
·
|
Pittsburgh Stamping
|
·
|
Moraine (Ohio) Assembly
|
·
|
Grand Rapids (Mich.) Stamping
|
·
|
Parma (Ohio) complex and land
|
·
|
Pontiac (Mich.) Assembly
|
·
|
Pontiac Centerpoint Central
|
·
|
Pontiac Centerpoint West
|
·
|
Pontiac Site 15
|
·
|
Pontiac Site 17
|
·
|
Pontiac Site 25
|
·
|
Pontiac building
|
·
|
Wilmington (Del.) Assembly, sold to Fisker Automotive Inc. for the production of hybrid electric cars.
|
·
|
Pontiac (Mich.) Centerpoint Campus, sold to Raleigh Studios Inc. for the creation of a movie studio supporting Michigan’s film industry.
|
·
|
Strasbourg (France) Powertrain, sold to General Motors and saving approximately 1,200 jobs.
|