Escolar Documentos
Profissional Documentos
Cultura Documentos
Gottesman (LG-7061) Michelle McMahon (MM-8130) 1290 Avenue of the Americas New York, New York 10104 (212) 541-2000
Objections Due: February 1, 2011 Reply Due: February 4, 2011 Hearing Date: None selected
Attorneys for Wells Fargo Bank, N.A., as trustee for the registered holders of Credit Suisse First Boston Mortgage Securities Corp. Commercial Mortgage Pass-Through Certificates, Series 2007-C1 and U.S. Bank National Association, as successor to LaSalle Bank N.A., formerly known as LaSalle National Bank, as Trustee for the registered holders of ML-CFC Commercial Mortgage Trust 2006-4, Commercial Mortgage Pass-Through Certificates, Series 2006-4 and LNR Securities Holdings, LLC UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK x In re: INNKEEPERS USA TRUST, et al., Debtors. : : (Jointly Administered) : : x MOTION OF TRUSTS AND LNR SECURITIES HOLDINGS, LLC SEEKING JUDICIAL DETERMINATION OF PARTY IN INTEREST STATUS UNDER SECTION 1109(b) OF THE BANKRUPTCY CODE, OR IN THE ALTERNATIVE GRANTING INTERVENTION IN THESE BANKRUPTCY CASES PURSUANT TO FEDERAL RULE OF BANKRUPTCY 2018 The Trusts (defined below) and LNR Securities Holdings, LLC (LNR Securities; jointly with the Trusts, Movants) hereby move this Court for a determination that each Movant is a party in interest under 11 U.S.C. 1109(b), or in the alternative for entry of an order permitting Movants to intervene in the above-captioned bankruptcy cases pursuant to Rule 2018 Chapter 11 Case No.: 10-13800 (SCC)
of the Federal Rules of Bankruptcy Procedure (the Rules). In support of this Motion, Movants state as follows: JURISDICTION AND VENUE 1. The Court has jurisdiction to consider this Motion pursuant to 28 U.S.C. 157
and 1334. This is a core proceeding pursuant to 28 U.S.C. 157(b). 2. 3. Venue lies properly with this Court pursuant to 28 U.S.C. 1408 and 1409. The statutory bases for the relief requested herein are section 1109(b) of chapter
11 of title 11 of the United States Code (the Bankruptcy Code) and Rule 2018. FACTUAL BACKGROUND The Debtors Bankruptcy Cases 4. On July 19, 2010 (the Petition Date), the Debtors filed voluntary petitions for
relief under chapter 11 of the Bankruptcy Code commencing these bankruptcy cases. 5. The Debtors are debtors-in-possession and continue to operate their businesses
pursuant to 11 U.S.C. 1107 and 1108. 6. July 28, 2010. The Trusts 7. Wells Fargo Bank, N.A., as trustee for the registered holders of Credit Suisse First An official committee of unsecured creditors (the Committee) was appointed on
Boston Mortgage Securities Corp. Commercial Mortgage Pass-Through Certificates, Series 2007-C1 (CSFB 2007-C1) and U.S. Bank National Association, as successor to LaSalle Bank N.A., formerly known as LaSalle National Bank, as Trustee for the registered holders of MLCFC Commercial Mortgage Trust 2006-4, Commercial Mortgage Pass-Through Certificates, Series 2006-4 (ML-CFC 2006-4; jointly with CSFB 2007-C1, the Trusts) hold secured claims 2
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(collectively, the Trust Secured Loans) in the aggregate principal amount of approximately $160 million against certain of the Debtors. Included among the Trust Secured Loans is a secured claim held by CSFB 2007-C1 in the principal amount of approximately $37.6 million (the Garden Grove Secured Loan) secured by, inter alia, the hotel commonly known as the Garden Grove Residence Inn. The Trust Secured Loans have been fully described in prior pleadings filed by the Trusts, including but not limited to the Declaration of Edward C. Brown in Support of the Objections of Certain Prepetition Lenders [Docket No. 258], the terms of which are incorporated by reference. LNR SECURITIES 8. LNR Securities holds certain certificates (the Certificates) issued by the LB-
UBS Commercial Mortgage Trust 2007-C7 (the C7 Trust). The C7 Trust holds one half of the $825 million secured mortgage loan referred to in these cases as the Fixed Rate Loan (the Fixed Rate Loan). The other one half of the Fixed Rate Loan is held by the LB-UBS Commercial Mortgage Trust 2007-C6 (the C6 Trust). The Fixed Rate Loan is currently specially serviced by Midland Loan Services, a division of PNC Bank, National Association (Midland). Midland, Five Mile and CRES1 9. As more particularly set forth in the applicable governing documents,2 the Fixed
Rate Loan was to be serviced under the C6 Trust pooling and servicing agreement (the C6
LNR reserves all of its rights with respect to issues raised in the litigation against CRES regarding the appointment of the special servicer for the Fixed Rate Loan, which is currently pending before this Court: LNR Partners, LLC and LNR Securities Holdings, LLC v. CRES Investment No. II, LP, Adv. Pro. 10-04237.
Copies of the relevant documents have been filed in connection with the Complaint and Plaintiffs Memorandum of Law in Support of Application for Temporary and Preliminary Injunctive Relief [Docket no. 1, Exhibits B and C] in the adversary proceeding referenced in footnote 1 above.
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PSA), with Midland appointed as the initial special servicer with respect to the Fixed Rate Loan, subject to its resignation or replacement by the majority interest in the Controlling Class (as defined in the C6 PSA) of the C6 Trust or the Controlling Class Representative (as defined in the C7 Trust pooling and servicing agreement) of the C7 Trust. Pursuant to the applicable pooling and servicing agreements, Midland may be replaced as special servicer with or without cause. Upon information and belief, Five Mile Capital Partners LLC or an affiliate thereof holds a majority interest in the Controlling Class of the C6 Trust and CRES Investment No. II, LP or an affiliate thereof (CRES) is the Controlling Class Representative of the C7 Trust. Upon information and belief, Five Mile has also purchased a controlling interest in CRES and now controls CRES and its ability to appoint the special servicer for the Fixed Rate Loan.3 10. Five Mile Capital Partners LLC is an affiliate of the proposed stalking horse
bidder Five Mile Capital II Pooling REIT LLC (jointly, Five Mile). The Bid Procedures Motion 11. On January 14, 2011, the Debtors filed the Motion for Entry of an Order (I)
Authorizing the Debtors to Enter into the Commitment Letter with Five Mile Capital II Pooling REIT LLC, Lehman ALI, Inc., and Midland Loan Services, (II) Approving the New Party/Midland Commitment Between the Debtors and Midland Loan Services, (III) Approving Bidding Procedures, (IV) Approving Bid Protections, (V) Authorizing an Expense Reimbursement to Bidder D, and (VI) Modifying Cash Collateral Order to Increase Expense Reserve [Docket No. 820] (the Bid Procedures Motion).
As part of the documents requests served on January 21, 2011, the Trusts and LNR Securities sought production of documents from CRES and Five Mile regarding any purchase of an interest in CRES or CRES interests in the C7 Trust.
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12.
The Bid Procedures Motion seeks to enshrine Five Mile as the proposed stalking
horse based upon the Five Mile/Lehman Bid (as defined in the Bid Procedures Motion). The Five Mile/Lehman Bid would, among other things, (i) materially alter and impair the Trust Secured Loans, by (a) reducing the principal balance of the Garden Grove Secured Loan by approximately $12.1 million, (b) eliminating current amortization provisions for the Trust Secured Loans, (c) extending the maturity dates for the Trust Secured Loans and (d) eliminating prepayment, yield maintenance and defeasance provisions with respect to the Trust Secured Loans and (ii) reduce the principal balance of the Fixed Rate Loan from approximately $825 million to $622.5 million. 13. The Bid Procedures Motion seeks approval of, among other things, certain Bid
Procedures (as defined in the Bid Procedures Motion). The proposed Bid Procedures provide that in order to be a Qualified Bid (as defined in the Bid Procedures Motion), a bid must be made on an enterprise value basis only, such that the marketing process for and reorganization of the Debtors obligated on Trust Secured Loans is inextricably tied to that of the Debtors obligated on Fixed Rate Loan and the Debtors as a singular whole. See Bid Procedures Motion, Ex. A, Ex. 2 3(c)(ii)(A) (Bidding Procedures). Thus, any and all aspects of the proposed Bid Procedures directly affect the Trusts pecuniary interests inasmuch as the likelihood of the submission of, and , as the potential terms of, any competing bid that would improve the treatment of the Trust Secured Loans are a function of and subject to the Bid Procedures.4 While the purpose of this Motion is not to brief the myriad defects in the proposed Bid Procedures (and the Movants fully reserve their rights with respect thereto), the Movants submit that the proposed Bid Procedures
The notion that the Debtors will consider bids that are not Qualified Bids pursuant to the so-called fiduciary out provision is illusory.
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will render it highly unlikely that there will be competing bids submitted, thereby locking in the substantial impairment to the Fixed Rate Loan and the Trust Secured Loans embodied in the Five Mile/ Lehman Bid. For example, the Bid Procedures request that any Qualified Bid pay the Lehman claim solely in cash poses a substantial obstacle to the submission of any competing bids, particularly in view of the short marketing period provided for by the Bid Procedures Motion. The Bid Procedures Motion proposes to modify the Final Cash Collateral Order (as defined in the Bid Procedures Motion) to increase the Debtors Expense Reserve (as defined in the Final Cash Collateral Order) for certain closing and emergence costs, including potential success fees by $14.5 million (from $4.5 million to $18.5 million). See Bid Procedures Motion 34. Such a dramatic increase in the amount of the Debtors Expense Reserve could reduce or eliminate the adequate protection payments to the Trusts and the Fixed Rate Loan under the Final Cash Collateral Order. ARGUMENT Movants are Parties in Interest under Section 1109(b) 14. Section 1109(b) provides:
A party in interest, including the debtor, the trustee, a creditors committee, an equity security holders committee, a creditor, an equity security holder, or any indenture trustee, may raise and may appear and be heard on any issue in a case under this chapter. 11 U.S.C. 1109(b) (emphasis added). The term party in interest is not defined in the Bankruptcy Code, but has been construed broadly by the courts to insure fair representation of all constituencies impacted by the debtors bankruptcy case. See, e.g., In re Amatex Corp., 755 F.2d 1034, 1042 (3d Cir. 1985) (Section 1109(b) continues the pattern of permitting interested parties in bankruptcy cases the absolute right to be heard and to insure their fair representation), citing, In re Johns-Manville Corp., et al, 36 B.R. 743, 748-49 (Bankr. S.D.N.Y. 1984) (finding 6
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that section 1109(b) was broad enough to encompass the interest of future asbestos claimants based in part on finding that to deny party in interest status to such claimants would deny them the ability to participate in a reorganization that included their interests). The basic test under section 1109(b) is whether the prospective party in interest has a sufficient stake in the outcome of the proceeding so as to require representation. In re Stone Barn Manhattan LLC, 405 B.R. 68, 74 (Bankr. S.D.N.Y. 2009) (citations omitted). 15. The Movants are indisputably parties in interest and therefore entitled to be heard
under section 1109(b). Each of the Trusts, as a holder of the applicable Trust Secured Loans, is a creditor. As creditors of the Debtors, the Trusts have an express right under section 1109(b) to be heard on any issue, including the Bid Procedures Motion and any aspect thereof. See, e.g., Term Loan Holder Committee v. Ozer Group, LLC (In re The Caldor Corp.), 303 F.3d 161, 16779 (2d Cir. 2002) (finding that the plain language of the statute permits any party in interest to be heard on any issue in a case); In re Marin Motor Oil, Inc., 689 F.2d 445, 451 (3d Cir. 1982) (stating that it would be a strained construction of the unqualified language of section 1109 to read it to be limited to participation in only the general administrative aspects of the case and holding that creditors committee had standing to appear in an adversary proceeding); In re First Humanics Corp., 124 B.R. 87, 92-93 (Bankr. W.D. Mo. 1991) (finding that movant as a creditor was entitled to appear and be heard based on movants unsecured claims, which were acquired post-petition with the acknowledged purpose of eliminating any question as to whether movant was a party in interest). 16. The Trusts claims are materially impaired by the Five Mile/Lehman Bid --
losing valuable rights, including the rights to current amortization, to payment in full no later than the existing scheduled maturity date, to receive prepayment and yield maintenance
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payments, and in the case of the Garden Grove Secured Loan, to be paid the full principal balance.5 Because the Bid Procedures provide that only an enterprise bid will be deemed to be a Qualified Bid (as defined in the Bid Procedures Motion) and because the Bid Procedures pose substantial if not insurmountable hurdles to any competing bid, the treatment of the Trust Secured Loans is inextricably tied to and affected by the entire relief sought by the Bid Procedures Motion. The Bid Procedures Motion not only seeks approval of the process by which the Debtors will market and conduct an auction of the right to sponsor a plan of reorganization for the Debtors, but also of the proposed stalking horse agreement with Five Mile and Lehman, which contains many significant terms of the anticipated plan of reorganization for all of the Debtors. The proposed bid procedures would also require Qualified Bids to include a similar whole enterprise structure and many of the terms of the stalking horse bid as they relate to the Debtors plan of reorganization, including valuations and allocation of any enhanced value received following the auction. See Bid Procedures Motion, Ex. A, Ex. 1 (Commitment Letter) and Ex. A, Ex. 2, 4(b)(iii) (Bidding Procedures). The Bid Procedures Motion, and the marketing process and plan of reorganization it contemplates, will determine the entire restructuring of all of the Debtors. 17. LNR Securities is also a party in interest because the Bid Procedures and the Five
Mile/Lehman Bid will necessarily directly affect LNR Securities pecuniary interests as a Certificate holder in the C7 Trust. See Stone Barn Manhattan LLC, 405 B.R. at 74 (finding that the official committee of unsecured creditors for the estates of the successor to the debtors,
The suggestion by Midlands counsel that the Trusts claims are not impaired because the Five Mile/Lehman Bid does not seek to reduce the principal balance of four of the five Trust Secured Loans ignores both other material terms of the proposed treatment of the Trust Secured Loans as well as the express language of section 1124 of the Bankruptcy Code. In any event, the standing granted to creditors by section 1109(b) is by no means limited to creditors whose claims are impaired, as even unimpaired creditors retain an interest in the integrity and feasibility of the bankruptcy process.
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which was itself a debtor, had standing to object to a proposed settlement which would be paid from an escrow account in which the successors estate had a contingent interest). Thus, LNR Securities is a party in interest under section 1109(b) and is entitled to be heard with respect to any issue in the Debtors bankruptcy cases. See, e.g., Term Loan Holder Committee v. Ozer Group, LLC (In re The Caldor Corp.), 303 F.3d at 167-69. 18. Bankruptcy Judge Peck of this district recently permitted certificate holders to be
heard in a bankruptcy case, stating that efforts to restrict the certificate holders ability to participate and be heard in the bankruptcy case would violate the constitution of the United States by violating the certificate holders rights of freedom of assembly and speech. In re Extended Stay Inc., et al., Case no. 09-13764, Transcript from hearing held on September 10, 2009 (the ES Sept. 10, 2009 Tr.), pp. 74-75. See also In re Extended Stay Inc., et al., Case no. 09-13764, Transcript from hearing held on June 16, 2009, p.25:15-20 (permitting all parties, including certificate holders, to appear and be heard on a motion to approve interim use of cash collateral).6 In Extended Stay, certain senior certificate holders negotiated pre-petition with the debtors regarding the terms of a potential plan of reorganization, which plan was filed on the first day of the bankruptcy case. Certain junior certificate holders subsequently sued the senior certificate holders under the applicable pooling and servicing agreement and sought, inter alia, to enjoin the senior certificate holders from negotiating with the debtors on behalf of the trust. The Extended Stay Court denied a motion to remand on the basis of finding that the issues raised in the complaint were within its core jurisdiction because it was so apparent to me from the
The debtors in Extended Stay were able to negotiate a consensus among the special servicer and the certificate holders with respect to final approval of the use of cash collateral and the dispute as to who was authorized to appear and be heard was not before the Court at the hearing on the final use of cash collateral. In re Extended Stay Inc., et al., Case no. 09-13764, Transcript from hearing held on June 29, 2009, pp. 34:6-25 and 35:1-6. Copies of the cited portions of the Extended Stay transcripts are attached hereto as Exhibits A-C.
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argument that what was being sought in the complaint appeared to me to have a direct impact upon the ability of parties with economic interests to negotiate with the debtor. ES Sept. 10, 2009 Tr. at 153:5-10. 19. Recognition of LNR Securities status as a party in interest is particularly
important given the circumstance of these bankruptcy cases where the stalking horse bid is submitted by parties holding or controlling the two largest secured claims owed by the Debtors. For all practical purposes and for whatever reason, Midland has been acting in a manner that makes clear that it is advancing the interests of Five Mile, rather than the interests of all of the certificate holders that Midland is obligated to represent. These cases present the unique fact pattern in which the stalking horse bidder, whose bid will determine the recovery of all creditors, currently has the ability to replace the special servicer for the single largest creditor, and where, notwithstanding its obligations to the contrary, the special servicer is acting in a manner designed to advance the interests of the stalking horse bidder rather than the trusts whose interests it is obligated to protect.7 This is evidenced by Midlands singular support for Five Mile as a stalking horse bidder throughout this case, and most recently by Midlands commitment to support the Five Mile and Lehman stalking horse bid. See Bid Procedures Motion, Ex. E, App. C. Midland is unwilling to use the full leverage of its position as special servicer for the largest secured debt so as to obtain the highest recovery for the holders of the Fixed Rate Loan. Midland has consistently aligned with Five Mile and has rejected the suggestion that it seek to negotiate with other potential plan sponsors in addition to Five Mile even though such competition would have incentivized Five Mile to improve its offer or resulted in a better stalking horse bid from a third
LNR reserves all of its rights with respect to issues raised in the litigation against CRES regarding the appointment of the special servicer for the Fixed Rate Loan, which is currently pending before this Court: LNR Partners, LLC and LNR Securities Holdings, LLC v. CRES Investment No. II, LP, Adv. Pro. 10-04237.
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party. Accordingly, in order to ensure that those whose economic interests are most affected by the Bid Procedures Motion are fully heard, the Court should recognize the status of the C7 Trust Certificate holders as parties in interest entitled to be heard. Absent the relief requested, the interests of the beneficial holders of the Fixed Rate Loan will not be adequately represented with respect to the Bid Procedures Motion and the marketing process and plan of reorganization contemplated thereby. ES Sept. 10, 2009 Tr., pp. 71:15-22 (describing certificate as certainly have economic stakes to protect in the bankruptcy and denying remand based on finding that relief seeking to bar such certificate holders from actively in determining their own economic fate in this bankruptcy case was within the Courts core jurisdiction). See also Bank of America, N.A., et al. v. Lightstone Holdings, LLC, et al. (In re Extended Stay, Inc., et al.), Adv. Pro. 09-01353, Docket No. 25, Memorandum Decision pp. 12-13 (denying remand based on finding that the issues raised in the complaint were within its core jurisdiction because [t]he inability of such significant stakeholders to meaningfully participate in the plan process presents an issue that very clearly is unique to and uniquely affected by the Debtors bankruptcy cases), affirmed by Five Mile Capital II SPE ESH LLC, et al. v. Cerberus Capital Management, et al. (In re Extended Stay, Inc., et al.), Case No. 09-9196, Docket No. 18, Opinion and Order. Alternatively, LNR Securities Should be Permitted to Intervene in the Debtors Bankruptcy Cases Pursuant to Rule 2018 20. Permissive intervention provides the Bankruptcy Courts with a mechanism to
allow entities that do not technically qualify as parties in interest to participate in proceedings when such participation is necessary to protect the parties interest. Southern Boulevard, Inc. v. Martin Paint Stores, 207 B.R. 57, 62 (S.D.N.Y. 1997). Rule 2018(a) provides in pertinent part: In a case under the Code, after hearing on such notice as the court directs and for cause shown, the court may permit any interested entity to intervene generally or with respect to any specified matter. 11
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Fed. R. Bank. P. 2018(a). Permissive intervention under Rule 2018(a) may be permitted for cause. Cause is an economic or similar interest in the case or one of its aspects. In re Public Service Co. of New Hampshire, 88 B.R. 546, 551 (Bankr. N.H. 1988). The factors that the courts consider in determining whether to permit intervention under Rule 2018 are: (i) whether the intervenors interests are already adequately represented and (ii) whether intervention would result in undue delay or prejudice to the original parties. See e.g., id. The courts have authorized a very broad and elastic interpretation of those parties entitled to participate in a case as parties in interest or intervenors under section 1109(b) and Rule 2018(a). Id. 21. As set forth in detail above, LNR Securities economic interests in the Debtors
bankruptcy cases would be negatively affected by the relief sought in the Bid Procedures Motion and the marketing process and plan of reorganization contemplated thereby. See, supra 12-13 and 17. These interests are not already adequately represented by Midland; indeed, Midland has acted in a manner adverse to these interests. Midlands unwavering support for Five Miles efforts to acquire the Debtors and for the proposed Five Mile/Lehman Bid is inconsistent with its obligation to maximize recovery for the Fixed Rate Loan for the benefit of all Certificate holders. 22. Finally, permitting LNR Securities intervention will not result in any delay or
prejudice to the parties. In determining whether to permit intervention, the principal consideration is whether intervention will unduly delay or prejudice adjudication of the rights of the original parties. Public Service Co. of New Hampshire, 88 B.R. at 544. The discovery and briefing schedule with respect to the Bid Procedures Motion has already been established and anticipates significant involvement by LNR Securities. Moreover, all parties are fully aware of LNR Securities interests and intent to participate actively in the Debtors bankruptcy cases to protect those rights, so there can be no prejudice. Accordingly, LNR Securities satisfies all of
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the criteria necessary to demonstrate cause why it should be permitted to intervene in the Debtors bankruptcy cases. CONCLUSION 23. As set forth in detail above, Movants have the right to participate in the Debtors
bankruptcy cases to protect their interests as secured creditors and Certificate holders. Each Movant is a party in interest under section 1109(b) of the Bankruptcy Code and as such is entitled to appear and be heard on any issue. Additionally, LNR Securities has demonstrated cause supporting its request to intervene under Rule 2018. In order for the bid procedures ultimately approved by this Court and the marketing process and plan of reorganization contemplated thereby to be the result of a truly fair process, the interests of all affected parties should be heard. Dated: New York, New York January 25, 2011 BRYAN CAVE LLP /s/ Lawrence P. Gottesman Lawrence P. Gottesman (LG-7061) Michelle McMahon (MM-8130) 1290 Avenue of the Americas New York, New York 10104 Tel: (212) 541-2000; Fax: (212) 541-4630 Counsel for the Trusts and LNR Securities Holdings, LLC
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CERTIFICATE OF SERVICE I, Lawrence P. Gottesman, hereby certify, under penalty of perjury, that on January 25, 2011, I caused a copy of the Motion of Trusts and LNR Securities Holdings, LLC Seeking Judicial Determination of Party in Interest Status under Section 1109(b) of the Bankruptcy Code, or in the Alternative Granting Intervention in these Bankruptcy Cases pursuant to Federal Rule of Bankruptcy 2018 to be served by First Class US Mail upon the parties listed on the attached service list. BRYAN CAVE LLP /s/ Lawrence P. Gottesman ________________ Lawrence P. Gottesman (LG-7061) 1290 Avenue of the Americas New York, New York 10104-3300 (212) 541-2000 (tel) (212) 541-4630 (fax)
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Arnold & Porter LLP Attn: Marc Daniel Counsel to Five Mile 399 Park Avenue New York, NY 10022 FAX: 212-715-1399 Email: Marc.Daniel@aporter.com
Arnold & Porter LLP Attn: Michael Canning Counsel to Five Mile 399 Park Avenue New York, NY 10022 FAX: 212-715-1399 Email: michael.canning@aporter.com
Arnold & Porter LLP Attn: Michael J. Canning Counsel for Five Mile Capital II Pooling International LLC 399 Park Avenue New York, New York 10022 FAX: (212) 715-1399 Email: michael.canning@aporter.com
Barlett Hackett Feinberg P.C. Attn: Frank F. McGinn Counsel for Iron Mountain Information Management, Inc. 155 Federal Street 9th Floor Boston, MA 02110 FAX: 617-422-0383 Email: ffm@bostonbusinesslaw.com
Best Western International Inc 6201 North 24th Parkway Phoenix, AZ 85016 FAX: 602-957-5641
Bryan Cave LLP Attn: Lawrence P. Gottesman, Esq 1290 Avenue of the Americas New York, NY 10104 FAX: 212-541-4630 Email: lawrence.gottesman@bryancave.com
Bryan Cave LLP Attn: Michelle McMahon, Esq 1290 Avenue of the Americas New York, NY 10104 FAX: 212-541-4630 Email: michelle.mcmahon@bryancave.com
Capmark Finance Inc. Attn: Portfolio Manager, Specialty Asset Management 1600 Tysons Blvd Suite 1100 McLean, VA 22102
Centerline Servicing, Inc. Attn: Steve Oltmann 5221 N OConnor Blvd, Suite 600 Irving, TX 75039 Email: soltmann@centerline.com
CSE Mortgage, LLC 4445 Willard Avenue 12th Floor Chevy Chase, MD 20815 FAX: 301-841-2340
CW Capital Asset Management LLC 18500 Von Karman Avenue, Suite 515 Attn: Ira Haynie Irvine, CA 92612
CWCapital Performing Loan Management- CMBS Ira Haynie, Associate-Asset Manager 18500 Von Karman Avenue, Suite 515 Irvine, CA 92612 Email: ihaynie@cwcapital.com
Dechert LLP Attn: Nicole B. Herther-Spiro 1095 Avenue of the Americas NewYork, NY 10036 FAX: (212) 698-3599 Email: nicole.hertherspiro@dechert.com
Dechert LLP c/o Stephanie M. Tita 30 Rockefeller Plaza New York, NY 10112 FAX: 212-698-3599 Email: stephanie.tita@dechert.com
Dechert LLP Counsel to Lehman Attn: Andrew L. Buck 1095 Avenue of the Americas New York, NY 10036 FAX: 212-698-3599 Email: Andrew.Buck@dechert.com
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Deutsche Banc Mortgage Capital, LLC Attn: Director, Mortgage Backed Securities 60 Wall Street 10th Floor New York, NY 10005
Deutsche Bank Securities Inc. Attn: General Counsel 1301 Avenue of the Americas 8th Floor New York, NY 10019
Dewey & Leboeuf LLP Attn: Irena M. Goldstein, Esq. 1301 Avenue of the Americas New York, NY 10019 FAX: 212-259-6333 Email: igoldstein@dl.com
Dewey & Leboeuf LLp Attn: Martin J. Bienenstock, Esq 1301 Avenue of the Americas New York, NY 10019 FAX: 212-2559-6333 Email: mbienenstock@dl.com
Dewey & Leboeuf LLP Attn:Timothy Q. Karcher, Esq. 1301 Avenue of the Americas New York, NY 10019 FAX: 212-259-6333 Email: tkarcher@dl.com
Doubletree Hotel Systems, Inc. 9336 Civic Center Drive Attn: General Counsel Beverly Hills, CA 90210 FAX: (310)205-7655
Duane Morris LLP Attn: Phillip K. Wang Counsel for LNR Partners, LLC, One Market Plaza, Spear Tower Suite 2200 San Francisco, CA 94105-1127 FAX: (415) 358-4725 Email: pwang@duanemorris.com
Ecolab Pest Elimination 3535 S 31st Street PO Box 6007 Grand Forks, ND 58206 FAX: 701-775-2536
Elite Heating & Air 214 Cherry Avenue Voorhees, NJ 08043 FAX: 856-354-8655
Eric Ryan Corporation 1 Early Street Ellwood City, PA 16117 FAX: 724-752-8999
Fire & Oak 55 Route 17 South Rochelle Park, NJ 07662 FAX: 201-307-1200
Global Restaurant Design, Corp 31368 Via Colinas Suite #108 Westlake Village, CA 91362 FAX: 818-706-7701
Goldenbock EisemanAssor Bell & Peskoe LLP Attn: Jonathan L. Flaxer, ESQ. 437 Madison Avenue New York, NY 10022 FAX: 212-754-0330 Email: jflaxer@golenbock.com
Guest Supply, Inc. PO Box 910 Monmouth Juction, NJ 08852 FAX: 609-514-2692
Haynes and Boone, LLP Attn: John D. Penn, Esq. Counsel for Midland Loan Services, Inc. 201 Main Street, Suite 2200 Fort Worth, TX 76102 FAX: (817) 348-2300 Email: john.penn@haynesboone.com
Haynes and Boone, LLP Lenard M. Parkins, Esq. Mark Elmore, Esq. Counsel for Midland Loan Services, Inc. 1221 Avenue of the Americas, 26th Floor New York, NY 10020 FAX: (212) 884-8211 Email: lenard.parkins@haynesboone.com
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Hyatt Summerfield Suites 194 Park Ave. Morristown, NJ 07960 FAX: 973-971-0013
Jenkins/Gales & Martinez 5933 West Century Blvd Suite #1000 Los Angeles, CA 90045 FAX: 310-670-8721
JMC Global 7 Grogans Park Drive Ste 11 The Woodlands, TX 77380 FAX: 832-381-2495
Kasowitz, Benson, Torres & Friedman LLP Attn: Adam L. Shiff, Esq. Counsel for Five Mile Capital Partners LLC 1633 Broadway New York, NY 10019 FAX: 212-506-1800 Email: ashiff@kasowitz.com
Kasowitz, Benson, Torres & Friedman LLP Attn: Daniel A. Fliman Counsel for Five Mile Capital Partners LLC 1633 Broadway New York, NY 10019 FAX: 212-506-1800 Email: dfliman@kasowitz.com
Kasowitz, Benson, Torres & Friedman LLP Attn: David M. Friedman Counsel for Five Mile Capital Partners LLC 1633 Broadway New York, NY 10019 FAX: 212-506-1800 Email: dfriedman@kasowitz.com
Kaufmann Gildin Robbins & Oppenheim LLP Attn: Bruce R. Alter, Esq. Counsel to Hilton Worldwide, Inc. 550 Mamaroneck Avenue, Suite 510 Harrison, New York 10528 FAX: (914) 670-0031 Email: info@altergoldlaw.com
Kaufmann Gildin Robbins & Oppenheim LLP David J. Kaufmann, Esq. Kevin M. Shelley, Esq. Counsel for Hilton Worldwide, Inc. 777 Third Avenue, 24th Floor New York, New York 10017 FAX: (212) 755-3174 Email: dkaufmann@kaufmanngildin.com
Kilpatrick & Associates, P.C. Attn: Richardo I. Kilpatrick Counsel for Creditor Oakland County Treasurer 903 North Opdyke Road, Suite C Auburn Hills, MI 48326 Email: ecf@kaalaw.com
Kilpatrick Stockton LLP Attn: Jonathan E. Polonsky, Esq. Counsel for TriMont Real Estate Advisors, Inc. 31 West 52nd Street 14th Floor New York, NY 10019 FAX: (212) 775- 8819 Email: jpolonsky@kilpatrickstockton.com
Kilpatrick Stockton LLP Attn: Mark A. Fink, Esq. Counsel for TriMont Real Estate Advisors, Inc. Suite 2800 1100 Peachtree Street, NE Atlanta, GA 30309-4530 FAX: 404-815-6555 Email: mfink@kilpatrickstockton.com
Kilpatrick Stockton LLP Attn: Rex R. Veal, Esq. Counsel for TriMont Real Estate Advisors, Inc. Suite 2800 1100 Peachtree Street, NE Atlanta, GA 30309-4530 FAX: 404-815-6555 Email: rveal@kilpatrickstockton.com
Kilpatrick Stockton LLP Attn: Todd C. Meyers, Esq. Counsel for TriMont Real Estate Advisors, Inc. Suite 2800 1100 Peachtree Street, NE Atlanta, Georgia 30309-4530 FAX: (404) 815-6555 Email: tmeyers@kilpatrickstockton.com
Kirkland & Ellis, LLP Attn: Jennifer Marines, Associate Citigroup Center 601 Lexington Avenue New York, NY 10022 FAX: 212-446-6460 Email: jennifer.marines@kirkland.com
Kirkland & Ellis, LLP Attn: Marc Carmel, Partner 300 North La Salle Chicago, IL 60654 FAX: 312-862-2200 Email: marc.carmel@kirkland.com
Kohner, Mann & Kailas, S.C. Attn: Samuel C. Wisotzkey Counsel for Ecolab Inc. 4650 North Port Washington Road Milwaukee, WI 53212-1059 FAX: (414) 962-8725 Email: swisotzkey@kmksc.com
LAMCO LLC Susanne Frey 1271 Avenue of the Americas, 39th Floor New York, NY 10020 Email: susanne.frey@lamcollc.com
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Lehman ALI, Inc. Attn: Charlene Thomas 399 Park Avenue New York, NY 10022 FAX: 646-758-4544
Lehman ALI, Inc. Attn: Michael E. Lascher 1271 Avenue of the Americas 39th Floor NEW YORK, NY 10020 FAX: 646-758-4544
Lehman ALI, Inc. Attn: Michael E. Lascher 1271 Avenue of the Americas, 39th Floor New York, NY 10020 FAX: 646.285.9336
Lehman ALI, Inc. c/o David Forti, Esq. 2929 Arch Street Philadelphia, PA 19103 FAX: 215-994-2222 Email: david.forti@dechert.com
Linebarger Goggan Blair & Sampson, LLP Attn: Elizabeth Weller 2323 Bryan Street Suite 1600 Dallas, TX 75201 FAX: 469-221-5002 Email: dallas.bankruptcy@publicans.com
Linebarger Goggan Blair & Sampson, LLP Counsel for Bexar County 711 Navarro, Suite 300 San Antonio, TX 78205 FAX: (210) 225-6410 Email: sanantonio.bankruptcy@publicans.com
LNR Partners, Inc. Attn: Chris Brown 1601 Washington Avenue, Suite 700 Miami Beach, FL 33139 FAX: (305) 695-5601 Email: CBrown@LNRProperty.com
LNR Partners, Inc. Attn: Director of Servicing 1601 Washington Avenue Suite 700 Miami, FL 33139 Email: cbrown@Lnrproperty.com
LNR Property Corporation 1601 Washington Avenue, Suite 800 Miami Beach, FL 33139
Marriott International, Inc. 10400 Fernwood Road Franchise Attorney Law Department 52/923.25 Bethesda, MD 20817
Marriott International, Inc. 10400 Fernwood Road VP Owner and Franchise Services Bethesda, MD 20817
Marx Realty & Improvement Co. 708 Third Ave. 21st Floor New York, NY 10017-4146 FAX: 212-983-4532 Email: Stephanie.T@marxrealty.com
Merrill Lynch Mortgage Lending Inc. Four World Financial Center 16th Floor New York, NY 10080
Midland Loan Services, Inc. 10851 Mastin Suite 700 Overland Park, KS 66210
Midland Loan Services, Inc. Attn: President P.O. Box 25965 Shawnee Mission, KS 66225 FAX: 913-253-9001
Morrison & Foerster, LLP Attn: Lorenzo Marinuzzi Counsel for Official Committee of Unsecured Creditors 1290 Avenue of the Americas New York, NY 10104-0050 FAX: (212) 468-7900 Email: LMarinuzzi@mofo.com
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Oak Roofing, Inc. 220 Hemlock Wood Dale, IL 60191 FAX: 630-238-0288
Office of Attorney General State of Florida The Capitol PL-01 Tallahassee, FL 32399-1050 FAX: 850-488-5865
Office of the Attorney General 100 West Randolph Street Chicago, IL 60601 FAX: 312-814-3589
Office of the Attorney General 1125 Washington Street SE PO Box 40100 Olympia, WA 98504-0100 FAX: 360-664-0228 Email: rob.mckenna@atg.wa.gov
Office of the Attorney General 1300 I Street, Suite 1740 Sacramento, CA 95814 FAX: 916-323-5341
Office of the Attorney General 1412 Main Street Suite 810 Dallas, TX 75202 FAX: 214-969-7615 Email: greg.abbott@oag.state.tx.us
Office of the Attorney General 1525 Sherman St., 5th Floor Denver, CO 80203 FAX: 303-866-5691 Email: cab@state.co.us
Office of the Attorney General 200 St. Paul Place Baltimore, MD 21202 Email: oag@oag.state.md.us
Office of the Attorney General 25 Market Street CN 080 Trenton, NJ 08625 FAX: 609-292-3508
Office of the Attorney General 40 Capitol Square SW Atlanta, GA 30334 FAX: 404-657-8733
Office of the Attorney General 55 Elm Street Hartford, CT 06141 FAX: 860-808-5389
Office of the Attorney General 6 State House Station Augusta, ME 04333 FAX: 207-626-8518
Office of the Attorney General 900 East Main Street Richmond, VA 23219 FAX: 804-786-1991
Office of the Attorney General 9001 Mail Service Center Raleigh, NC 27699-9001 FAX: 919-716-6750
Office of the Attorney General California Department of Justice Attn: Public Inquiry Unit PO Box 944255 Sacramento, CA 94244-2550 FAX: 916-323-5341
Office of the Attorney General Deputy AG Jeff Koziar 25 Market Street CN 080 Trenton, NJ 08625 FAX: 609-292-3508
Office of the Attorney General G. Mennen Williams Building, 7th Floor 525 W. Ottawa St. PO Box 30212 Lansing, MI 48909 FAX: 517-373-3042
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Office of the Attorney General PO Box 629 Raleigh, NC 27602 FAX: 919-716-6750
Office of the Attorney General The Capitol 2nd Floor Albany, NY 12224-0341
Office of the Attorney General The Capitol, Room 116 700 Capitol Avenue Frankfort, KY 40601-3449 FAX: 502-696-5389 Email: attorney.general@ag.ky.gov
Paul, Weiss, Rifkand, Wharton & Garrison, LLP Attn: Alan W. Kornberg, Esq. Counsel to Apollo Investment Group 1285 Avenue of the Americas New York, NY 10019-6064 FAX: 212-757-3990 Email: akornberg@paulweiss.com
Paul, Weiss, Rifkand, Wharton & Garrison, LLP Attn: Andrew J. Ehrlich Counsel to Apollo Investment Group 1285 Avenue of the Americas New York, New York 10019-6064 FAX: (212) 757-3990 Email: aehrlich@paulweiss.com
Paul, Weiss, Rifkand, Wharton & Garrison, LLP Attn: Lauren Shumejda Counsel to Apollo Investment Group 1285 Avenue of the Americas New York, New York 10019-6064 FAX: (212) 757-3990 Email: lshumejda@paulweiss.com
Pdq Consulting, Inc. 407 Wood Lake Drive Allen TX 75013 FAX: 972-767-3472
Pennsylvania Office of the Attorney General 16th Floor, Strawberry Square Harrisburg, PA 17120 FAX: 717-787-8242
Perkins Coie Counsel for CWCapital Performing Loan Management- CMBS Attn: Beth Understahl 2901 North Central Avenue Suite 2000 Phoenix, AZ 85012-2788 Email: BUnderstahl@perkinscoie.com
Perkins Coie LLP Attn: David Neff 131 South Dearborn Street Suite 1700 Chicago, IL 60603 FAX: 312-324-9689 Email: DNeff@perkinscoie.com
Promus Hotels, Inc. 9336 Civic Center Drive Attn: General Counsel Beverly Hills, CA 90210 FAX: (310)205-7655
Romala Stone, Inc. 315 S. Beverly Drive Suite 506 Beverly Hills, CA 90212-4316
Romero Law Firm Attn: Martha E. Romero Counsel for San Bernardino County, a California Taxing Authority BMR Professional Building 6516 Bright Ave. Whittier, CA 90601 FAX: 562-907-6820 Email: romero@mromerolawfirm.com
Saul Ewing LLP Attn: Jeffrey C. Hampton Counsel for U.S. Foodservice, Inc. Centre Square West 1500 Market Street, 38th Floor Philadelphia, PA 19102 FAX: (215) 972-1848 Email: jhampton@saul.com
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Skadden, Arps, Slate, Meagher & Flom LLP Four Times Square New York, NY 10036 FAX: 212-735-2000
Starwood Hotels & Resorts Worldwide Inc. Attn: Sandy Olson 9841 Airport Blvd., Ste 812 Los Angeles, CA 90045 FAX: 914-640-8310
State of Michigan, Department of Treasury Michael A. Cox, Attorney General Juandisha M. Harris, Assistant Attorney General Cadillac Place, Ste. 10-200 3030 W. Grant Blvd. Detroit, MI 48202 Email: harrisjm@michigan.gov
Summerfield Hotel Company LLC Attn: SVP Franchising 20 West Monroe 8th Floor Chicago, IL 60606
Sunset Pools, Inc. 1808-1 I Street NW Ste 201 Washington, DC 20006 FAX: 703-933-0077
Swank Audio Visuals, LLC 639 E. Garvois Bluffs St. Louis, MO 63026 FAX: 636-680-2898
Tashjian & Padian Gerald Padian, Esq. & Bradley M. Rank, Esq. Counsel for CWCapital Asset Management, LLC and C-III Asset Management LLC 729 Seventh Avenue New York, NY 10019 FAX: (212) 319-9883 Email: gpadian@tashpad.com
Texas Attorney General's Office Hal F. Morris & Ashley F. Bartram Bankruptcy & Collections Div. PO Box 12548, MC-008 Austin, TX 78711-2548 FAX: 512-475-2994
The Sheraton LLC 600 Galleria Parkway Suite 1700 Attn: General Counsel - Franchise Division Atlanta, GA 30339
The Sheraton LLC c/o Starwood Hotels and Resorts Worldwide 1111 Westchester Ave Attn: General Counsel White Plains, NY 10604
United States Trustees Office Region 2 33 Whitehall Street, 21st Floor New York, NY 10004 FAX: (212) 668-2255
Wells Fargo Bank Carol Anderson, Asset Manager 1901 Harrison St, 2nd Floor Oakland, CA 94612
Wells Fargo, N.A. c/o Capmark Finance Inc. Attn: Portfolio Managers Three Ravina Drive, Suite 200 Atlanta, GA 30346
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Creditors:
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EXHIBIT A
UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK Case No. 09-13764-JMP Adv. Case No.09-01354 - - - - - -x In the Matter of: EXTENDED STAY INC., et al., Debtor. - -x LINE TRUST CORPORATION LTD. and DEUCE PROPERTIES LTD., Plaintiffs, -againstDAVID LICHTENSTEIN, LIGHTSTONE HOLDINGS LLC, WELLS FARGO BANK, N.A. in its capacity as Trustee, WACHOVIA BANK, N.A., BANK OF AMERICA, NA.A. U.S. BANK NATIONAL ASSOCIATION, CERBERUS CAPITAL MANAGEMENT, L.P. CENTERBRIDGE PARTNERS, L.P. Defendants.
- - - - - - - - - - - - - - - - - - - - -x
United States Bankruptcy Court One Bowling Green New York, New York September 10, 2009 10:04 AM B E F 0 R E: HON. JAMES M. PECK, U.S. BANKRUPTCY JUDGE
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connection with any plan of reorganization, similar to claims they've made in the other two cases that are being heard today. But that's something that they've made up out of thin air. There is no grand strategy. The plaintiff recognizes it is a
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mere trust certificate holder and it does not seek in the action it has brought to block any reorganization plan or even to influence one. Ra.ther, it seeks to enforce contractual
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rights which require, according to the plaintiffs, the defendants to abide by the terms of the contract they agreed to in connection with their purchase of trust certificates. It's clear that in our case the plaintiff does not seek any relief against the debtors. It does not seek any
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relief against any property of the debtors and it does not seek to assert any claim on behalf of the debtors. THE COURT: Aren't you seeking, however, to influence
the manner in which the plan in this bankruptcy case is to be negotiated by outside of the bankruptcy court seeking to obtain orders that would prevent certificate holders who may be parties in interest and certainly have economic stakes to protect, from sitting down and making agreements, perhaps side by side with the special servicer, but participating actively in determining their own economic fate in this bankruptcy case. MR. GOLENBOCK: Your Honor, what we're trying to do
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and it is true, Your Honor, that what we are trying to do is to enforce what we believe is the terms of this agreement which
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declaratory judgment so that the Court can rule on what this means because we know there's a dispute as to what it means. THE COURT: Well, without going to the merits -Yes, Your Honor. but simply dealing with the procedural
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question that's before the Court, if what you're seeking has potential impact upon the ability of economic interests actively represented by counsel that participate in the bankruptcy case, I believe that you have a problem in terms of your remand. If, however, you are simply dealing with a prepetition event which may be a case of no harm no foul because that term sheet has led nowhere so far, then you can, I suppose, pursue a
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meritless lawsuit in state court. MR. GOLENBOCK: Your Honor, I'm not going to sit here
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and tell you that the only subject matter of our lawsuit is what's already happened. As I said, we don't know what has
happened and we are seeking declaratory judgment that this provision bars the defendants, the other certificate holders, from negotiating with the debtor. And if they do that and it
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causes damages, then we believe we have a cause of action against them. So it's both -- it both deals with what has
happened and what may happen in the future, although we don't know that it will happen. But to the extent that the defendants are arguing that
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what we're trying to do is to stop them from participating in discussions, that isn't true. When the parties purchased
when the various certificate holders purchased these certificates and the mortgage trust they agreed to abide by the governance principles. And those governance principles talk
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about -- provide authority to the special servicer to speak for the trust and to engage in negotiations and so on. There is
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nothing in our suit that would prevent the defendants, in any way, from negotiating with the special servicers, as undoubtedly they have done and negotiating with the other certificate holders. All we're trying to do, and we are trying
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to do it, is to enjoin them from -- to stop them from negotiating with the debtor. But it's still the case THE COURT: Sounds like you're seeking to invoke some
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kind of rule that would violate the constitution of the United States. You're basically dealing with freedom of assembly and
speech here. MR. GOLENBOCK: THE COURT: and talk? MR. GOLENBOCK: trying to violate -THE COURT: that you're seeking. I'm just trying to understand the relief Your Honor, I don't think we are No, Your Honor.
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things of that nature. THE COURT: MR. ORBACH: THE COURT: expected argument. Understood. Thank you, Your Honor. Okay. This has been a longer-than-
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bench, in the Five Mile Capital case, in part because it was so apparent to me from the argument that what was being sought in that complaint appeared to me to have a direct impact upon the ability of parties with economic interests to negotiate with the debtor. That I view as clearly core.
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As to the two other matters that have been argued this morning, the Line Trust matter and the Bank of America case, I want to give some more thought, in particular, to some of the arguments that have been made about federal preemption and the right court to consider questions of the enforceability of nonrecourse guarantees under circumstances that are really unprecedented. is controlling. Everybody is citing to case authority as if it And I think we all recognize that there is no
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controlling authority that deals with the issues that are currently before me. I also believe that Mr. Meister is right in noting that there are significant transactions not in bankruptcy potentially to be affected by this ruling, not necessarily whether or not these two cases should or should not be remanded to the state court for further proceedings, but rather the
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EXHIBITB
UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK Case No. 09-13764-jmp - - - - - - - - - -x In the Matter of:
Debtors.
- - - - - - - - - - - - - - - - - - - - -x
United States Bankruptcy Court One Bowling Green New York, New York
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understanding with, again, a significant group of the certificate holders, who I assume, now that the trustee is represented, will be talking to the trustee and counsel. So we
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believed that was an important step for the debtor and that it is helpful to move this case through the court as quickly as possible to at least have an agreement in principle with an ad hoc mortgage lending group. THE COURT: I appreciate what you're saying. And my
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question was not intended to create an argliment over something which I expect we'll be developing over the course of the case. Additionally, to the extent that we have touched upon some issues that relate to cash collateral, we'll be addressing that during the course of this morning's hearing. MS. GOLDSTEIN: THE COURT: Yes, Your Honor. And maybe --
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to cash collateral who has filed an objection will have an opportunity to speak. And given the shortness of notice,
anybody who has a significant issue with respect to cash collateral who wishes to be heard will have an opportunity to speak even if they haven't filed objection papers. MS. GOLDSTEIN: Your Honor, this may be a good time,
since we're getting to the heart of what we are seeking here today, to speak to the motions. THE COURT: Fine. What I would like to request of the
MS. GOLDSTEIN:
EXHIBITC
UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK Case No. 09-13764-jrnp
- - - - - - - - - -x
In the Matter of:
Debtors.
- - - - - - - - - - - - - - - - - - - - -x
United States Bankruptcy Court One Bowling Green New York, New York
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holders representing, according to what was stated on the record, approximately twenty-five percent of the certificates. That may or may not be the right number, but let's just use that MS. MARCUS: THE COURT: It is, Your Honor. -- as a point of reference. In light of
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Mr. Miller's comment and in light of the fact that references to those supporting certificate holders and their law firms as notice parties no longer appear in the form of order, it raises a couple of questions. One is, to what extent does that group
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of certificate holders continue to have a seat at the table for purposes of discussing cash collateral? And the other question
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is, to what extent is their plan term sheet, which was part of the first day affidavit, a matter of current concern and interest, and to what extent has that dropped by the wayside in terms of moving forward with the case? That's not to say it's
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of no use, but I note that it's no longer a trigger event for use of cash collateral. MS. MARCUS: Okay. Let me take those in the order in The special servicer,
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I think, has asserted the position that those certificate holders do not have a seat at the table. to dealing with the interim and, in fact, The debtors' approach the final use of cash
collateral, is to try to develop a consensus among the special servicer, as well as those supporting certificate holders with
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whom we had previously negotiated; because to our mind, there was no point having a knock-down drag-out battle on that point if both parties who were seeking a seat at the table could agree on the terms of the use of cash collateral. has, indeed, occurred. issue for another day. With respect to the second question, to what extent is their plan term sheet a matter of current interest: the And that
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debtors still would like to proceed with the term -- the deal reflected in that term sheet. We recognize that the special
servicer has taken the position that they have to do all their diligence and get comfortable and come to a conclusion as to appropriate valuations, and we're prepared to work with them in that regard. So we're not rushing ahead to do anything until
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the special servicer has an opportunity to become a player at the table that has as much background as everybody else involved. But I think it would be incorrect to say that the
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debtors have abandoned that proposed term sheet. To Mr. Miller's point, with respect to the final order, the litigation reserve, the debtors intend to include the litigation reserve. As I indicated, we're still discussing
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that, or we haven't even begun discussing that with the special servicer yet. But the final cash collateral order doesn't have
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embedded in it the term sheet that was originally filed with the Teichman declaration. I hope that answers your questions.
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