HTML Document View

Full title: Stipulation By WMLP Liquidation Trust and Kemmerer Operations, LLC and Cummins, Inc. dba Cummins Sales and Service. Does this document include an agreed order or otherwise request that the judge sign a document? Yes. (Filed By WMLP Liquidation Trust ). (Wertz, Jennifer) (Entered: 01/15/2021)

Document posted on Jan 14, 2021 in the bankruptcy, 10 pages and 0 tables.

Bankrupt11 Summary (Automatically Generated)

Specifically, the WMLP Debtors are: (a) WMLP; (b) Westmoreland Kemmerer, LLC; (c) Oxford Mining Company, LLC; (d) Harrison Resources, LLC; (e) Oxford Mining Company-Kentucky, LLC; (f) Daron Coal Company, LLC; (g) Oxford Conesville, LLC; and (h) Westmoreland Kemmerer Fee Coal Holdings, LLC. 3 “WLB Debtors” means Debtors Westmoreland Coal Company, Absaloka Coal, LLC, Basin Resources, Inc., Buckingham Coal Company, LLC, Dakota Westmoreland Corporation, Haystack Coal Company, San Juan Coal Company, San Juan Transportation Company, Texas Westmoreland Coal Company, WCC Land Holding Company, Inc., WEI-Roanoke Valley, Inc., Western Energy Company, Westmoreland Coal Company Asset Corp., Westmoreland Coal Sales Company, Inc., Westmoreland Energy Services New York, Inc., Westmoreland Energy Services, Inc., Westmoreland Energy, LLC, Westmoreland Mining LLC, Westmoreland North Carolina Power LLC, Westmoreland Partners, Westmoreland Power, Inc., Westmoreland Resources Inc., Westmoreland San Juan Holdings, Inc., Westmoreland San Juan, LLC, Westmoreland Savage Corporation, Westmoreland Texas WHEREAS, pursuant to the WMLP Plan and WMLP Liquidation Trust Agreement, the WMLP Liquidation Trust, through the WMLP Liquidation Trustee, among other things, reviews, reconciles, settles, or objects to all Claims as provided in the WMLP Plan; WHEREAS, on December 11, 2018, Creditor filed Proof of Claim No. 35-1 (DRC Claim No. 645) against Kemmerer on the claims register in Case No. 18-35696 (the “Cummins Claim”), in the total amount of $51,457.15, of which the Creditor asserted $23,365.59 as a priority claim (the “Priority Claim”) and general unsecured claim in the amount of $28,091.56 (the “General Unsecured Claim”);[Docket No. 2081], whereby the Cummins Claim was modified to be a claim in the total amount of $26,196.83 (the “Modified Cummins Claim”), of which $295.14 constituted a priority claim (the “Modified Priority Claim”) and $25,901.69 constituted a general unsecured claim (the “Modified General Unsecured Claim”); WHEREAS, the WMLP Liquidation Trust satisfied the Modified Priority Claim during the course of its administration, therefore, only the Modified General Unsecured Claim remained outstanding under the Modified Cummins Claim; WHEREAS, prior to the Petition Date, on March 30, 2018, Creditor issued Invoice No. 024-62999 in the total amount of $468,908.00 to Westmoreland Kemmerer Inc.5 for a CRM engine rebuild and an engine core (the “First Invoice”), which related to Purchase Order No. 910083 000 WHEREAS, prior to the Petition Date, Kemmerer timely returned the engine core related to the Second Invoice; WHEREAS, prior to the Petition Date, Kemmerer paid the Creditor the full amounts due under the First Invoice and Second Invoice without accounting for the credits available under each; WHEREAS, although actually a pre-Petition Date credit, Cummins issued a core credit in the amount of $96,625.00 (the “First Core Credit”) related to the Firs

Page 1

IN THE UNITED STATES BANKRUPTCY COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION § In re: § Chapter 11 § WESTMORELAND COAL COMPANY, et al.1 § Case No. 18-35672 (DRJ) § Debtors. § (Jointly Administered) § STIPULATION AND AGREED ORDER RESOLVING PROOF OF CLAIM NO. 35-1 (DRC CLAIM NO. 645) FILED BY CUMMINS INC. DBA CUMMINS SALES AND SERVICE The WMLP Liquidation Trust, Kemmerer Operations, LLC (the “Kemmerer Purchaser”), and Cummins Inc. dba Cummins Sales and Service (“Creditor,” and together with the WMLP Liquidation Trust and Kemmerer Purchaser, the “Parties”) hereby enter into this stipulation and agreed order (this “Stipulation and Agreed Order”) as follows: WHEREAS, on October 9, 2018 (the “Petition Date”), the WMLP Debtors2 and WLB Debtors3 (collectively, the “Debtors”) filed voluntary petitions for relief under chapter 11 of the 1 Due to the large number of debtors in these chapter 11 cases, for which joint administration has been granted, a complete list of the debtors and the last four digits of their tax identification, registration, or like numbers is not provided herein. A complete list of such information may be obtained on the website of the claims and noticing agent in these chapter 11 cases at www.donlinrecano.com/westmoreland. Westmoreland Coal Company's service address for the purposes of these chapter 11 cases is 9540 South Maroon Circle, Suite 300, Englewood, Colorado 80112. 2 Specifically, the WMLP Debtors are: (a) WMLP; (b) Westmoreland Kemmerer, LLC; (c) Oxford Mining Company, LLC; (d) Harrison Resources, LLC; (e) Oxford Mining Company-Kentucky, LLC; (f) Daron Coal Company, LLC; (g) Oxford Conesville, LLC; and (h) Westmoreland Kemmerer Fee Coal Holdings, LLC. 3 “WLB Debtors” means Debtors Westmoreland Coal Company, Absaloka Coal, LLC, Basin Resources, Inc., Buckingham Coal Company, LLC, Dakota Westmoreland Corporation, Haystack Coal Company, San Juan Coal Company, San Juan Transportation Company, Texas Westmoreland Coal Company, WCC Land Holding Company, Inc., WEI-Roanoke Valley, Inc., Western Energy Company, Westmoreland Coal Company Asset Corp., Westmoreland Coal Sales Company, Inc., Westmoreland Energy Services New York, Inc., Westmoreland Energy Services, Inc., Westmoreland Energy, LLC, Westmoreland Mining LLC, Westmoreland North Carolina Power LLC, Westmoreland Partners, Westmoreland Power, Inc., Westmoreland Resources Inc., Westmoreland San Juan Holdings, Inc., Westmoreland San Juan, LLC, Westmoreland Savage Corporation, Westmoreland Texas

Page 2

United States Bankruptcy Code in the United States Bankruptcy Court for the Southern District of Texas (the “Bankruptcy Court”). These chapter 11 cases have been consolidated for procedural purposes only and are being jointly administered pursuant to Bankruptcy Rule 1015(b) [Docket No. 71]; WHEREAS, on October 18, 2018, the United States Trustee for the Southern District of Texas (the “U.S. Trustee”) appointed an official committee of unsecured creditors pursuant to § 1102 of the Bankruptcy Code (the “Committee”) [Docket No. 206]; WHEREAS, the Bankruptcy Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1334, this matter is a core proceeding within the meaning of 28 U.S.C. § 157(b)(2), and venue is proper pursuant to 28 U.S.C. §§ 1408 and 1409; WHEREAS, on June 5, 2019, the Bankruptcy Court entered the Order Approving Disclosure Statement and Confirming Amended Joint Plan of Liquidation for the WMLP Debtors, as Modified (the “WMLP Confirmation Order”) [Docket No. 1967] confirming the WMLP Debtors’ plan of liquidation (the “WMLP Plan”); WHEREAS on June 5, 2019, the Court entered the Order (I) Approving the Sale of the Kemmerer Mine and Certain Other Assets Free and Clear of Substantially All Liens, Claims, Encumbrances, and Interests Pursuant to a Credit Bid from Secured Lenders, (II) Authorizing the Assumption and Assignment of Certain Executory Contracts and Unexpired Leases and (III) Granting Related Relief [Docket No. 1966] (the “Kemmerer Sale Order”) for the sale (the “Kemmerer Sale”) of the Kemmerer Assets4, including, but not limited to, the Kemmerer Mine and all claims and Causes of Action (other than Excluded Causes of Action) of Debtor Jewett Coal Company, Westmoreland-Roanoke Valley, LP, and WRI Partners, Inc., and for the avoidance of doubt, does not include any of the WMLP Debtors. 4 As defined in the Kemmerer Sale Order.

Page 3

Westmoreland Kemmerer, LLC (“Kemmerer”), and certain other assets to the Kemmerer Purchaser; WHEREAS, on June 21, 2019, the effective date of the WMLP Plan occurred (the “WMLP Effective Date”) [Docket No. 2068]; WHEREAS, on the WMLP Effective Date, the WMLP Debtors irrevocably transferred all of their rights, title, and interest in and to the Liquidation Trust Assets (as defined in the WMLP Plan) to the WMLP Liquidation Trust and executed the Liquidation Trust Agreement and Declaration of Trust (the “WMLP Liquidation Trust Agreement”), appointing gtCFOservices LLC, a single-member California limited liability company, of which Gerald A. Tywoniuk is the sole member (the “WMLP Liquidation Trustee”); WHEREAS, pursuant to the WMLP Plan and WMLP Liquidation Trust Agreement, the WMLP Liquidation Trust, through the WMLP Liquidation Trustee, among other things, reviews, reconciles, settles, or objects to all Claims as provided in the WMLP Plan; WHEREAS, on December 11, 2018, Creditor filed Proof of Claim No. 35-1 (DRC Claim No. 645) against Kemmerer on the claims register in Case No. 18-35696 (the “Cummins Claim”), in the total amount of $51,457.15, of which the Creditor asserted $23,365.59 as a priority claim (the “Priority Claim”) and general unsecured claim in the amount of $28,091.56 (the “General Unsecured Claim”); WHEREAS, on May 10, 2019, the WMLP Liquidation Trust filed the Debtors’ Sixteenth Omnibus Objection to Certain Proofs of Claim (Modified Claims) [Docket No. 1830], whereby the WMLP Liquidation Trust objected to the Cummins Claim on the basis that the Priority Claim and General Unsecured Claim were partially satisfied;

Page 4

WHEREAS, on June 25, 2019, the Court entered the Order Sustaining Debtors’ Sixteenth Omnibus Objection to Certain Proofs of Claim (Modified Claims) [Docket No. 2081], whereby the Cummins Claim was modified to be a claim in the total amount of $26,196.83 (the “Modified Cummins Claim”), of which $295.14 constituted a priority claim (the “Modified Priority Claim”) and $25,901.69 constituted a general unsecured claim (the “Modified General Unsecured Claim”); WHEREAS, the WMLP Liquidation Trust satisfied the Modified Priority Claim during the course of its administration, therefore, only the Modified General Unsecured Claim remained outstanding under the Modified Cummins Claim; WHEREAS, prior to the Petition Date, on March 30, 2018, Creditor issued Invoice No. 024-62999 in the total amount of $468,908.00 to Westmoreland Kemmerer Inc.5 for a CRM engine rebuild and an engine core (the “First Invoice”), which related to Purchase Order No. 910083 000 OP issued by Kemmerer. The Creditor’s First Invoice provided that if the engine core was returned within 30 days, Creditor would issue a full credit in the amount of $96,625.00; WHEREAS, prior to the Petition Date, Kemmerer timely returned the engine core related to the First Invoice; WHEREAS, prior to the Petition Date, on May 3, 2018, Creditor issued Invoice No. 024-63734 in the total amount of $269,516.00 to Westmoreland Kemmerer Inc. 6 for a CRM engine rebuild and an engine core (the “Second Invoice”), which related to Purchase Order No. 908357 000 OP issued by Kemmerer. The Creditor’s Second Invoice provided that if the engine core was returned within 30 days, Creditor would issue a full credit in the amount of $70,066.00; 5 On the date of the Invoice, Westmoreland Kemmerer, Inc. was actually known as Westmoreland Kemmerer, LLC. 6 On the date of the Invoice, Westmoreland Kemmerer, Inc. was actually known as Westmoreland Kemmerer, LLC.

Page 5

WHEREAS, prior to the Petition Date, Kemmerer timely returned the engine core related to the Second Invoice; WHEREAS, prior to the Petition Date, Kemmerer paid the Creditor the full amounts due under the First Invoice and Second Invoice without accounting for the credits available under each; WHEREAS, although actually a pre-Petition Date credit, Cummins issued a core credit in the amount of $96,625.00 (the “First Core Credit”) related to the First Invoice on March 5, 2019; WHEREAS, although actually a pre-Petition Date credit, Cummins issued a core credit in the amount of $70,066.00 (the “Second Core Credit”) related to the Second Invoice on March 5, 2019; WHEREAS, the WMLP Liquidation Trust and Creditor agree that the First Core Credit and Second Core Credit were credits incurred and/or accrued pre-Petition Date; and WHEREAS, the Parties have agreed to resolve the remaining portion of the Modified Cummins Claim and issues related to the First Core Credit and Second Core Credit, as provided herein. NOW, THEREFORE, in consideration of the foregoing recitals, which are incorporated into this Stipulation and Agreed Order, the Parties hereby stipulate and agree as follows: 1. The WMLP Liquidation Trust hereby agrees that the Creditor shall be entitled to exercise its right to setoff and apply the First Core Credit against the Modified General Unsecured Claim in the amount of $25,901.69 asserted in the Modified Cummins Claim.

Page 6

2. The Creditor and the WMLP Liquidation Trust agree that after such setoff and application of a portion of the First Core Credit to the Modified General Unsecured Claim asserted in the Modified Cummins Claim, the Modified Cummins Claim has been satisfied in full. 3. The Parties agree that after such setoff and application, the First Core Credit is hereby modified and reduced to $70,723.31 (the “Modified First Core Credit”). 4. The Parties agree that pursuant to the Kemmerer Sale Order, the Modified First Core Credit in the amount of $70,723.31 and the Second Core Credit in the amount of $70,066.00 are considered Purchased Assets (as defined in the Kemmerer Sale Order) of the Kemmerer Purchaser and the Kemmerer Purchaser is entitled to all right, title, and interest in the Modified First Core Credit and the Second Core Credit in the total amount of $140,789.31. 5. The terms and conditions of this Stipulation and Agreed Order shall be immediately effective and enforceable upon entry by the Bankruptcy Court. 6. This Stipulation and Agreed Order is intended by the Parties to be binding upon their successors, agents, assigns, including bankruptcy trustees and estate representatives, and any parent, subsidiary, or affiliated entity of the Parties. 7. The undersigned hereby represent and warrant that they have full authority to execute this Stipulation and Agreed Order on behalf of the respective parties and that the respective parties have full knowledge of, and have consented to, this Stipulation and Agreed Order. 8. The Parties agree that each of them, through their respective counsel, has had a full opportunity to participate in the drafting of this Stipulation and Agreed Order and, accordingly, any claimed ambiguity shall be construed neither for nor against either of the Parties.

Page 7

9. This Stipulation and Agreed Order constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior discussions, agreements, and understandings, both written and oral, among the Parties with respect thereto. 10. This Stipulation and Agreed Order shall not be modified, altered, amended or supplemented except by a writing executed by the Parties or their authorized representatives. 11. The Bankruptcy Court retains jurisdiction with respect to all matters arising from or related to the implementation of this Stipulation and Agreed Order, and the Parties hereby consent to such jurisdiction to resolve any disputes or controversies arising from or related to this Stipulation and Order. IT IS SO ORDERED. Signed: __________, 2021 Houston, Texas DAVID R. JONES UNITED STATES BANKRUPTCY JUDGE

Page 8

IN WITNESS WHEREOF, the Parties, by their authorized counsel or on their own behalf, executed this Stipulation and Agreed Order as of the date written below. Dated: January 15, 2021 Jackson Walker LLP 1401 McKinney Street, Suite 1900 Houston, Texas 77010 (713) 752-4200 – Main Telephone (713) 752-4221 – Main Facsimile /s/ Jennifer F. Wertz Matthew D. Cavenaugh State Bar No. 24062656 Direct Dial: (713) 752-4284 Email: mcavenaugh@jw.com Jennifer F. Wertz State Bar No. 2407282 100 Congress Avenue, Suite 1100 Austin, Texas 78701 Direct Dial: (512) 236-2247 Email: jwertz@jw.com Vienna F. Anaya State Bar No. 24091225 2323 Ross Avenue, Suite 600 Dallas, Texas 75201 Direct Dial: (214) 953-6047 Email: vanaya@jw.com COUNSEL TO THE WMLP LIQUIDATION TRUST

Page 9

IN WITNESS WHEREOF, the Parties, by their authorized counsel or on their own behalf, executed this Stipulation and Agreed Order as of the date written below. Dated: January 15, 2021 Foley & Lardner LLP 555 South Flower Street, Suite 3300 Los Angeles, CA 90071-2418 (213) 972-4500 – Main Telephone /s/ Matthew J. Stockl Matthew J. Stockl CA State Bar No. 329366 Direct Dial: (213) 972-4601 Email: mstockl@foley.com Jill L. Nicholson IL State Bar No. 6257217 321 N. Clark Street, Suite 3000 Chicago, IL 60654 Direct Dial: (312) 832-4522 Email: jnicholson@foley.com COUNSEL TO THE CREDITOR, CUMMINS INC. D/B/A CUMMINS SALES AND SERVICE

Page 10

IN WITNESS WHEREOF, the Parties, by their authorized counsel or on their own behalf, executed this Stipulation and Agreed Order as of the date written below. Dated: January 15, 2021 /s/ Gerry Tywoniuk Gerry Tywoniuk Chief Executive Officer Kemmerer Operations, LLC Kemmerer Mine P.O. Box 950 6520 Elkol County Road 304 Kemmerer, WY 83101 KEMMERER OPERATIONS, LLC