Case 13-13087-KG Doc 923 Filed 05/22/14 Page 1 of 29 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE ) In re: ) Chapter 11 ) FAH LIQUIDATING CORP., et al.,1 ) Case No. 13-13087 (KG) (f/k/a FISKER AUTOMOTIVE ) HOLDINGS, INC.) ) ) Debtors. ) (Jointly Administered) ) ) Re: Docket Nos. 508, 653 NOTICE OF (A) REJECTION OF CERTAIN UNEXPIRED LEASES AND EXECUTORY CONTRACTS, (B) ASSUMPTION OF CERTAIN UNEXPIRED LEASES AND EXECUTORY CONTRACTS, (C) AND EXTENSION OF RETENTION PERIOD WITH RESPECT TO CERTAIN UNEXPIRED LEASES AND EXECUTORY CONTRACTS PLEASE TAKE NOTICE that on January 23, 2014, the United States Bankruptcy Court for the District of Delaware (the “Court”) entered the Order (I) Approving Bid Procedures in Connection with the Sale of Certain Assets of the Debtors; (II) Scheduling Hearing to Consider Approval of the Sale of Assets; (III) Approving Form and Manner of Notice Thereof; (IV) Authorizing the Debtors to Enter Into Stalking Horse Purchase Agreements; (V) Approving Expense Reimbursement; and (VI) Granting Related Relief [Docket No. 508] (the “Bidding Procedures Order”).2 PLEASE TAKE FURTHER NOTICE that on February 19, 2014, the Court entered the Order (I) Authorizing (A) the Sale of Certain Assets of the Debtors Free and Clear of all Claims, Liens, Liabilities, Rights, Interests and Encumbrances, (B) the Debtors’ Entry Into and Performance of their Obligations Under the Asset Purchase Agreement and Ancillary Agreements, and (C) the Debtors’ Assumption and Assignment of Certain Executory Contracts and Unexpired Leases; and (II) Granting Related Relief [Docket No. 653] (the “Sale Order”), pursuant to which, among other things, the Court authorized the sale of substantially all assets of the above-captioned debtors and debtors in possession (collectively, the “Debtors”) pursuant to the terms of that certain Asset Purchase Agreement by and among each of the Debtors as Sellers and Wanxiang America Corporation or its specified designee(s) as Buyers, dated as of January 27, 2014 (as subsequently amended, collectively with all ancillary documents and agreements, the “Purchase Agreement”) and specifically approved the procedures governing 1 The Debtors, together with the last four digits of each Debtor’s federal tax identification number, are: FAH Liquidating Corp. (f/k/a Fisker Automotive Holdings, Inc.) (9678); and FA Liquidating Corp. (f/k/a Fisker Automotive, Inc.) (9075). For the purpose of these chapter 11 cases, the service address for the Debtors is: 3080 Airway Avenue, Costa Mesa, California 92626. 2 Capitalized terms used but not herein defined shall have the meanings set forth in the Bidding Procedures approved as part of the Bidding Procedures Order. Case 13-13087-KG Doc 923 Filed 05/22/14 Page 2 of 29 Designated Contracts (as defined in the Purchase Agreement) set forth in Section 1.5(c) of the Purchase Agreement. The Closing Date (as defined in the Purchase Agreement) occurred on March 24, 2014. Leases and Contracts to Be Rejected; Rejection Damage Claims PLEASE TAKE FURTHER NOTICE that on May 13, 2014, in accordance with the terms of Section 1.5(c) of the Purchase Agreement and the Sale Order, the Buyer (as defined in the Purchase Agreement) delivered a Rejection Notice (as defined in the Purchase Agreement) to the Debtors, notifying the Debtors of the Buyer’s intent not to assume certain Designated Contracts (as defined in the Purchase Agreement), which automatically resulted in such Designated Contracts being deemed Excluded Contracts (as defined in the Purchase Agreement). PLEASE TAKE FURTHER NOTICE that the Debtors hereby provide this Notice of Rejection of Unexpired Leases and Executory Contracts (the “Notice of Rejection”) of their intent to reject all unexpired leases and executory contracts to which one or more of the Debtors is party that are identified on Schedule A hereto (the “Leases and Contracts to Be Rejected”). Pursuant to the terms of the Bidding Procedures Order and Section 1.5(c) of the Purchase Agreement, the Leases and Contracts to Be Rejected: (a) were deemed Excluded Contracts (as defined in the Purchase Agreement) as of May 13, 2014; and (b) shall be deemed to have been rejected ten (10) days from the date of service of this Notice of Rejection (the “Effective Date of Rejection”). PLEASE TAKE FURTHER NOTICE that counterparties to Leases and Contracts to Be Rejected that wish to file a rejection damages claim relating to the rejection of such Leases and Contracts to Be Rejected must do so by the later of: (a) the deadline, or “bar date,” set by the Court for the filing of claims against the Debtors; and (b) thirty (30) days from the Effective Date of Rejection. Any such rejection damages claims must be filed with the Debtors’ claims and noticing agent, Rust Consulting/Omni Bankruptcy, Attn.: FAH Liquidating Corp. (f/k/a Fisker Automotive, Inc.), 5955 DeSoto Avenue, Suite 100, Woodland Hills, California 91367. PLEASE TAKE FURTHER NOTICE THAT IF YOU DO NOT PROPERLY AND TIMELY FILE SUCH PROOF OF CLAIM, YOU SHALL BE FOREVER BARRED FROM ASSERTING ANY CLAIMS FOR SUCH REJECTION DAMAGES REGARDING THE LEASES AND CONTRACTS TO BE REJECTED. PLEASE TAKE FURTHER NOTICE that the Debtors and the Buyer have agreed to extend the Retention Period (as defined in Section 1.5(c) of the Purchase Agreement) with respect to the remaining Designated Contracts through and including June 23, 2014. The Designated Contracts which remain subject to possible assumption by the Debtors and assignment to the Buyer, or possible rejection, are identified on Schedule B hereto. Assumed Contracts and Assumed Leases PLEASE TAKE FURTHER NOTICE that the Assumed Contracts and Assumed Leases (as defined in the Sale Order) which have been assigned to the Buyer pursuant to the Bidding Procedures Order, the Sale Order, and the Purchase Agreement are identified on Schedule C hereto. 2 Case 13-13087-KG Doc 923 Filed 05/22/14 Page 3 of 29 Reservation of Rights PLEASE TAKE FURTHER NOTICE that the Debtors do not waive any claims that they may have against counterparties to Leases and Contracts to Be Rejected, whether or not such claims arise under, are related to the rejection of, or are independent of such Leases and Contracts to Be Rejected. Additionally, nothing herein shall be deemed an admission with respect to whether a contract or lease is executory or unexpired. Additional Information PLEASE TAKE FURTHER NOTICE that all documents filed with the Court in connection with these chapter 11 cases, including orders of the Court and a copy of this Rejection Notice, may be obtained (a) at the website of the Debtors’ claims and noticing agent, Rust Consulting/Omni Bankruptcy (http://www.omnimgt.com/fiskerautomotive) or by calling 1.866.989.3043; and (b) through the webpage for the Court (www.deb.uscourts.gov) (access via this link requires registration with Pacer Service Center at (800) 676-6856 or on-line at www.pacer.gov). [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.] 3 Case 13-13087-KG Doc 923 Filed 05/22/14 Page 4 of 29 Dated: May 22, 2014 /s/ Peter J. Keane Wilmington, Delaware Laura Davis Jones (DE Bar No. 2436) James E. O’Neill (DE Bar No. 4042) Peter J. Keane (DE Bar No. 5503) PACHULSKI STANG ZIEHL & JONES LLP 919 North Market Street, 17th Floor P.O. Box 8705 Wilmington, Delaware 19899-8705 (Courier 19801) Telephone: (302) 652-4100 Facsimile: (302) 652-4400 Email: [email protected] [email protected] [email protected] - and - James H.M. Sprayregen, P.C. (admitted pro hac vice) Anup Sathy, P.C. (admitted pro hac vice) Ryan Preston Dahl (admitted pro hac vice) KIRKLAND & ELLIS LLP 300 North LaSalle Street Chicago, Illinois 60654 Telephone: (312) 862-2000 Facsimile: (312) 862-2200 Email: [email protected] [email protected] [email protected] Attorneys for the Debtors and Debtors in Possession Case 13-13087-KG Doc 923 Filed 05/22/14 Page 5 of 29 Schedule A Leases and Contracts to Be Rejected Case 13-13087-KG Doc 923 Filed 05/22/14 Page 6 of 29 COUNTERPARTY DESCRIPTION 893353 Alberta Inc./ The Dilawri Group Retailer Agreement Acument Global Technology Requirements Contract - 45001463 Acument Global Technology Requirements Contract - 45001464 Acument Global Technology Requirements Contract – 5500000429 Acument Global Technology Requirements Contract - 5500000445 Acument Global Technology Requirements Contract - 5500000446 Acument Global Technology Requirements Contract - 5500000447 Acument Global Technology Requirements Contract - 5500000448 Advanced Auto Antennas, S.L. Requirements Contract Aero-X AG Requirements Contract Air International, Inc. Requirements Contract - 2168 - Control Module Air International, Inc. Requirements Contract - 45000266 - CRFM Air International, Inc. Requirements Contract - 45001188 - Interooler Air International, Inc. Indemnification Agreement All Seals, Inc. Requirements Contract Alpha Requirements Contract Alps Automotive Inc. Requirements Contract - 45000185 - Brake Analog Sensor Alps Automotive Inc. Requirements Contract - 45000381 - Switch- Mirror-Rearview-Side A-M, LLC Third-Party Logistics Services Agreement Amino North America General Terms and Conditions of Purchase Anac (Amino NA) Requirements Contract Case 13-13087-KG Doc 923 Filed 05/22/14 Page 7 of 29 COUNTERPARTY DESCRIPTION Android Industries, L.L.C. Production Control & Logistics Services Agreement Armada Rubber Manufacturing Company Requirements Contract Asbury St Louis FSKR, L.L.C. Retailer Agreement Asbury Texas D FSKR, L.L.C Retailer Agreement ATF Inc. Requirements Contract Autoline Industries Indiana Supplier Agreement Automatic Systems, Inc. Design and Installation Services Agreement Bayerische Motoren Werke Aktiengesellschaft Purchase, Supply and Development Agreement (N20 4-Cylinder Gasoline Engines, Parts and Components) Bayerische Motoren Werke Aktiengesellschaft Amendment to the Supply Contract (BMW) BBA S.r.L Requirements Contract BCP Systems Requirements Contract BD Otomotiv ve Elekltrikli Araclar Sanayi ve Logistics and Sales Addendum Ticarat A.S. BD Otomotiv ve Elekltrikli Araclar Sanayi ve Distributorship Agreement Ticaret A.S. Behr GmbH & Co.