ANY DOUBT??? 08-13555-jmp Doc 32652 Filed 12/07/12 Entered 12/07/12 17:31:00 Main Document
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TO THE HONORABLE JAMES M. PECK
UNITED STATES BANKRUPTCY JUDGE:
Lehman Brothers Holdings Inc. (“LBHI” and the “Plan Administrator”), as Plan
Administrator under the Modified Third Amended Joint Chapter 11 Plan of Lehman Brothers
Holdings Inc. and Its Affiliated Debtors (the “Plan”) for the entities in the above-referenced
chapter 11 cases (the “Chapter 11 Estates”), respectfully represents as follows:
Relief Requested
1. The proofs of claim listed on Exhibit A annexed hereto relate in whole or
in part to securities identified by ISIN XS0282978666 or ISIN XS0301813522 (the “Preferred
Securities”) issued by Lehman Brothers UK Capital Funding IV L.P. (“LB UK IV”) or Lehman
Brothers UK Capital Funding V L.P. (“LB UK V” and, together with LB UK IV, the “Trusts”),
non-Debtor entities. LBHI issued guarantees in connection with the Preferred Securities
(together, the “Subordinated Guarantees”) which rank LBHI’s obligations, if any, junior to all
subordinated liabilities of LBHI and pari passu with LBHI’s preferred equity. Accordingly, the
Plan Administrator files this objection, pursuant to sections 502(b) and 510(a) of title 11 of the
United States Code (the “Bankruptcy Code”), Rule 3007(d) of the Federal Rules of Bankruptcy
Procedure (the “Bankruptcy Rules”), and this Court’s order approving procedures for the filing
of omnibus objections to proofs of claim filed in these chapter 11 cases (the “Procedures Order”)
[ECF No. 6664], to classify as equity interests, all portions of the claims listed on Exhibit A
annexed hereto that relate to the Preferred Securities or the Subordinated Guarantees (such
portions the “Subordinated Guarantee Claims”)
LBHI’s Obligations Under the Subordinated Guarantees are
Subordinated to All Liabilities of LBHI and Equivalent with Preferred Equity of LBHI
9. Section 502(b)(1) of the Bankruptcy Code provides, in relevant part, that a
claim may not be allowed to the extent that “such claim is unenforceable against the debtor and
property of the debtor, under any agreement or applicable law.” 11 U.S.C. § 502(b)(1). Section
510(a) of the Bankruptcy Code provides that “[a] subordination agreement is enforceable … to
11. A copy of the Subordinated Guarantee for the Preferred Securities issued
by LB UK IV (“Subordinated Guarantee IV”) is attached hereto as Exhibit B. A copy of the
Subordinated Guarantee for the Preferred Securities issued by LB UK V (“Subordinated
Guarantee V”) is attached hereto as Exhibit C. The Subordinated Guarantees provide that any
claims arising from, in connection with, or in any way relating to, any failure of LBHI to pay
under the Subordinated Guarantee shall have the same priority as, and no greater priority than,
preferred stock interests in LBHI.
12. Specifically, section 2.9 of Subordinated Guarantee IV states that LBHI’s
obligations, if any, under the Subordinated Guarantee for the Preferred Securities issued by LB
UK IV:
…constitute unsecured obligations of LBHI subordinated in right
of payment to Senior Creditors and will at all times rank: (a) junior
to all subordinated liabilities of LBHI … (b) pari passu with Parity
Securities, … and (c) senior to the Junior Share Capital of LBHI.
…constitute unsecured obligations of LBHI subordinated in right
of payment to Senior Creditors and will at all times rank: (a) junior
to all subordinated liabilities of LBHI … (b) pari passu with Parity
Securities, … and (c) senor to the Junior Share Capital of LBHI.
13. Accordingly, the Plan Administrator respectfully requests that the Court
classify the Subordinated Guarantee Claims, whether liquidated, unliquidated or undetermined,
in LBHI Class 12 of the Plan and equivalent with the preferred equity in LBHI.
