Case KJC Doc 4627 Filed 01/26/16 Page 1 of 25 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE.

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1 Case KJC Doc 4627 Filed 01/26/16 Page 1 of 25 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE In re: Chapter 11 EXIDE TECHNOLOGIES, Reorganized Debtor. 1 Case No (KJC) Hrg./Status Conference Date: February 2, 2016 at 10:00 a.m. Eastern Standard Time Related Docket No.: 4414, 4503, 4504, 4505, 4507, 4528, 4559, 4560, 4561, 4562, 4563, 4604, 4605, 4606, 4607 THE SOUTH COAST AIR QUALITY MANAGEMENT DISTRICT S STATUS CONFERENCE STATEMENT Pursuant to the Order Granting Parties Agreed Schedule [Docket No. 4528] (the Scheduling Order ), the South Coast Air Quality Management District (the District ) respectfully submits this status conference statement in connection with the three fully briefed matters before this Court: (i) the GUC Claims Motion 2 ; (ii) the Administrative Claim Objection 3 ; 1 The last four digits of the Reorganized Debtor s taxpayer identification number are The Reorganized Debtor s corporate headquarters are located at Deerfield Parkway, Building 200, Milton, Georgia The GUC Claims Motion is [The District s] Motion for Entry of an Order Concerning the Timeliness of Its General Unsecured Claims Against Exide [Docket No. 4503]. Papers filed in connection with the GUC Claims Motion are the objection thereto [Docket No. 4562], the reply in support thereof [Docket No. 4607], the request for judicial notice in connection therewith [Docket No. 4504] (the GUC RJN ), and the Reorganized Debtor s limited objection [Docket No. 4560] to the GUC RJN. 3 The Administrative Claim Objection is Reorganized Debtor s (Substantive) Objection Pursuant to Bankruptcy Code Section 503(b) and Bankruptcy Rule 3007 to Proof of Administrative Expense Claim Filed by the [District] (Claim No. 4123) [Docket No. 4507]. Papers filed in connection with the Administrative Claim Objection are the opposition thereto [Docket No. 4559] (the Administrative Claim Opposition ), the reply in support thereof [Docket No. 4604] (the Administrative Claim Reply ), the request for judicial notice in connection therewith [Docket No. 4563] (the Administrative Claim RJN ), and the Reorganized Debtor s objection [Docket No. 4605] to the Administrative Claim RJN. 1

2 Case KJC Doc 4627 Filed 01/26/16 Page 2 of 25 and (iii) the Excepted-from-Discharge Motion The parties filed and briefed the GUC Claims Motion, Administrative Claim Objection, and Excepted-from-Discharge Motion pursuant to the Order Resolving the Reorganized Debtor s Motion [to Enforce] [Docket No. 4414] (the Resolving Order ), which resolved Exide s Motion to Enforce. 5 In its Motion to Enforce, Exide asserted that the District s continued prosecution of the Third Amended Complaint [Pfister Decl. Ex. 21] 6 in the California State Action violated the discharge injunction in this Court s Confirmation Order. The District disputed Exide s assertion on the ground that, inter alia, the parties had agreed in the March 2014 Stipulation [Pfister Decl. Ex. 6] that the District could prosecute the California State Action 4 The Excepted-from-Discharge Motion is [The District s] Motion for a Determination that It Has Alleged a Prima Facie Case for Application of the 11 U.S.C. 1141(d)(6) Exception to Discharge [Docket No. 4505]. Papers filed in connection with the Excepted-from-Discharge Motion are the objection thereto [Docket No. 4561] ( EFD Objection ), and the reply in support thereof [Docket No. 4606]. 5 The Motion to Enforce is The Reorganized Debtor s Motion for Entry of an Order (I) Enforcing the Plan Injunction Under the Confirmation Order and the Confirmed Plan of Reorganization and (II) Awarding Costs and Attorney s Fees [Docket No. 4023]. Papers filed in connection with the Motion to Enforce are the exhibit thereto [Docket No. 4029], the joinders thereto [Docket Nos & 4299], the District s objection to the Motion to Enforce [Docket No. 4247], and Exide s reply [Docket No. 4291] (the Motion to Enforce Reply ). 6 References to the Pfister Declaration are to the Declaration of Robert J. Pfister in Opposition to the Reorganized Debtor s Motion [to Enforce] [Docket No ] and the exhibits thereto. Capitalized terms used but not defined herein have the meanings ascribed in the Pfister Declaration. The Pfister Declaration was admitted into evidence at the July 7, 2015 hearing on the Motion to Enforce. The Pfister Declaration includes all primary documents relied upon or referenced by the District in its filings, with the exception of: (i) Exide s answer in the California State Action (GUC RJN Ex. 1); (ii) a publicly available governmental report and supporting appendix (Admin. Claim RJN Exs. A B); and (iii) the Stipulated 2009 Documents referenced in the District s opposition to Exide s Administrative Claim Objection (Admin. Claim RJN Exs. C E). Exide does not appear to dispute that the materials attached to the GUC RJN and Administrative Claim RJN are subject to judicial notice; indeed, it has attached at least one of the documents (its answer in the California State Action) to one of its own filings as an exhibit. The District used the request for judicial notice device (which is common in California courts, both state and federal) as essentially the equivalent of a sponsoring declaration by counsel. 2

3 Case KJC Doc 4627 Filed 01/26/16 Page 3 of 25 in California State Court an agreement reiterated in Paragraph 31 of the Confirmation Order, which reads: Notwithstanding any otherwise applicable injunction in the Plan or in the confirmation order, the South Coast Air Quality Management District shall be permitted to prosecute its [California State Action] subject to, and in accordance with the terms of, [the March 2014 Stipulation]. Conf. Order 31. The District further observed that in addition to being the forum for liquidation of the District s prepetition general unsecured claims (the sole topic addressed in the Motion to Enforce), the California State Action is also the forum in which the District s timely Administrative Claim [Pfister Decl. Ex. 22] and excepted-from-discharge claims are being liquidated. 2. At the July 7, 2015 hearing on the Motion to Enforce, the parties agreed that the issues presented by the Motion to Enforce (Resolving Order 7) would be adjudicated via the three sets of filings that are now fully briefed: (i) the GUC Claims Motion, in which the District seeks a determination by this Court that all prepetition claims asserted in the Third Amended Complaint in the District s California State Action may be pursued by the District, Resolving Order 2; (ii) the Administrative Claim Objection, by which Exide objects to the District s Administrative Claim [Pfister Decl. Ex. 22], see Resolving Order 4; and (iii) the Exceptedfrom-Discharge Motion, in which the District seek[s] to demonstrate a prima facie case regarding its alleged claims and application of the exception to discharge contained in 11 U.S.C. 1141(d)(6), Resolving Order 3. The District agreed to a stay of the California State Action while this process unfolded. See id. 8; July 7, 2015 Tr. at 36:21 37:8. 3. On October 14, 2015, the Court held a scheduling/case management conference on the GUC Claims Motion, Administrative Claim Objection, and Excepted-from-Discharge Motion. At that hearing, the parties agreed to a briefing schedule (which is now complete) and 3

4 Case KJC Doc 4627 Filed 01/26/16 Page 4 of 25 the Court set a non-evidentiary hearing or status conference (Scheduling Order at 2) that was subsequently rescheduled for February 2, Each party was invited to file a status conference report setting forth its suggestions for the process regarding the Court s disposition of the briefed matters. Scheduling Order 1. This is the District s status conference report. 4. GUC Claims Motion: Resolution of the GUC Claims Motion will dispose of the sole issue originally raised in Exide s Motion to Enforce, which is the scope of the District s prepetition general unsecured claim. The District timely filed its Original Proof of Claim [Pfister Decl. Ex. 7], which seeks approximately $40 million in fines and penalties for violations of the District s rules, on the governmental bar date (December 9, 2013). Approximately eight months later (on August 22, 2014), and well before the April 30, 2015 deadline for amending proofs of claim, see Plan 10.7, the District filed its Amended Proof of Claim [Pfister Decl. Ex. 14]. The Amended Proof of Claim attached and incorporated by reference the District s First Amended Complaint [Pfister Decl. Ex. 13]. 5. To resolve the GUC Claims Motion, the Court need only determine that the portions of the Third Amended Complaint addressing prepetition conduct assert[] a claim or defense that arose out of the conduct, transaction, or occurrence set out or attempted to be set out in the original pleading, Fed. R. Civ. P. 15(c)(1)(B), i.e., the Original Proof of Claim [Pfister Decl. Ex. 7] (which was timely filed on the bar date) and/or the Amended Proof of Claim [Pfister Decl. Ex. 14] (a timely amendment to the Original Proof of Claim). This is a pure question of law. Krupski v. Costa Crociere S.p.A., 560 U.S. 538, 553, 130 S. Ct. 2485, 2496 (2010) ( Rule [15(c)] mandates relation back once the Rule s requirements are satisfied; it does not leave the decision whether to grant relation back to the district court s equitable discretion. ). 6. Moreover, the issue for the Court to resolve in connection with the GUC Claims 4

5 Case KJC Doc 4627 Filed 01/26/16 Page 5 of 25 Motion is quite narrow given: (i) Exide s concession that the District may properly liquidate its prepetition general unsecured claim via the California State Action, see Mot. to Enforce Reply at 7 n.9 ( The District can prosecute the Third Amended Complaint in the California State Court, but not the New Claims contained therein. ); and (ii) the absence of any excusable neglect argument (a fact-intensive, discretionary inquiry that is not implicated by the GUC Claims Motion). Each side s points and authorities have been amply briefed, and the District will be prepared to argue the GUC Claims Motion at the February 2, 2016 non-evidentiary hearing. 7. Administrative Claim Objection: The District s Administrative Claim [Pfister Decl. Ex. 22] was timely filed on May 30, It attaches and incorporates by reference the Third Amended Complaint [Pfister Decl. Ex. 21]. A gating issue with respect to the District s Administrative Claim is the applicability of the Third Circuit s decision in Pennsylvania Department of Environmental Resources v. Tri-State Clinical Laboratories, Inc., 178 F.3d 685 (3d Cir. 1999). The District contends that Tri-State does not preclude the allowance of an administrative expense claim for violation of the environmental laws under Pennsylvania Department of Environmental Resources v. Conroy, 24 F.3d 568 (3d Cir. 1994), but rather carves an exception to the general rule of administrative expense priority for post-petition violations for criminal violations. In contrast, Exide contends that the entire Administrative Expense Claim may be disallowed as matter of law under Tri-State. To the extent Tri-State is read more broadly, as the Debtor urges, to apply to civil penalties of the kind applicable here, it conflicts with published decisions from the First, Fourth, and Eleventh Circuits, 7 such that if this 7 See, e.g., Cumberland Farms, Inc. v. Fla. Dep t of Envtl. Prot., 116 F.3d 16, 21 (1st Cir. 1997); Ala. Surface Mining Comm n v. N.P. Mining Co. (In re N.P. Mining Co.), 963 F.2d 1449, 1458 (11th Cir. 1992); Dep t of Interior v. Elliott (In re Elkins Energy Corp.), 761 F.2d 168, 172 (4th Cir. 1985). 5

6 Case KJC Doc 4627 Filed 01/26/16 Page 6 of 25 bankruptcy case had been filed in one of those other circuits, the District s claim would be entitled to administrative priority. Admin. Claim Opp n Both sides agree that the applicability of Tri-State (a pure question of law) could be dispositive. See, e.g., Admin. Claim Reply 33 (arguing that the District s request for administrative expense priority should be rejected as a matter of law under Tri-State ). If the Court agrees with the District that Tri-State does not preclude any administrative expense claim, then Exide s Administrative Claim Objection should be overruled without prejudice to renewing the fact-intensive arguments when the District returns to this Court at the conclusion of the California State Action, which will provide a full factual record upon which Exide can make its arguments about parsing particular dates. If the Court agrees with Exide that Tri-State compels disallowance of the District s Administrative Claim as a matter of law, then Exide s Administrative Claim Objection should be sustained on that basis. That will allow the appellate process to unfold with respect to a collateral issue of law (administrative priority for postpetition environmental fines and penalties) while the parties litigate the balance of their disputes in the California State Court, as contemplated by Paragraph 31 of the Confirmation Order. 9. Exide disagrees, and asks the Court to go beyond the Tri-State legal issue. Notwithstanding its contention that Tri-State compels a ruling in Exide s favor as a matter of law, Exide invites the Court to wade into contested factual issues that pertain to only a subset of its conduct: that which straddles the Petition Date and/or occurred while the Vernon Facility was 8 See also Admin. Claim Reply 21 n.25 ( The District s reliance on non-third Circuit law, where other courts have awarded administrative priority to non-compensatory postpetition fines, must be rejected in light of Tri-State s contrary holding. ); 29 ( Whether the District s claims would be entitled to administrative priority under non-controlling case law is beside the point. This case is pending in the Third Circuit, and under Tri-State, there is no administrative priority for such claims. ). 6

7 Case KJC Doc 4627 Filed 01/26/16 Page 7 of 25 allegedly idle. Exide characterizes these as limited and discrete fact issues. Id. 34. In reality, the factual questions are neither limited nor discrete. They implicate complex issues of causation and require a fully developed record of the kind that will necessarily be developed in the California State Action. Moreover, these intensely factual issues are not dispositive. It is undisputed that the Vernon facility operated (under any definition of the verb to operate ) during a meaningful portion of the bankruptcy case, and Exide asserts only that the majority of the District s [postpetition] claims are based on continuations of prepetition conduct, id. 27 (emphasis added) implicitly conceding that certain challenged conduct was entirely postpetition under any definition of the adjectives prepetition and postpetition. 10. In light of the foregoing, the District will ask the Court at the February 2, 2016 non-evidentiary hearing to overrule the Administrative Claim Objection insofar as it is based upon a blanket application of Tri-State. 11. Excepted-from-Discharge Motion: The core of the dispute between the parties on the Excepted-from-Discharge Motion is whether the District has set out a prima facie case for application of the discharge exception a precise standard incorporated into the Resolving Order. See Resolving Order 3 (directing the District to file a motion seeking to demonstrate a prima facie case regarding its alleged claims and application of the exception to discharge contained in 11 U.S.C. 1141(d)(6). (emphasis added)) The Court can and should resolve the Excepted-from-Discharge Motion at this time. A prima facie case is simply what is required to support entry of a default judgment if the 9 The Court should decline Exide s invitation to revisit this agreed-upon standard. See EFD Obj. 48 n.24 (requesting that even if the Court agrees with the District, the District still should not be permitted to pursue any of the allegedly nondischargeable claims in the California State Action until this Court determines whether such claims are in fact nondischargeable on the merits. (emphasis added)). 7

8 Case KJC Doc 4627 Filed 01/26/16 Page 8 of 25 opposing party does not appear or defend. 10 The Third Amended Complaint, as further explicated by the Excepted-from-Discharge Motion, sets out detailed allegations of fraud and fraud-like conduct by Exide. Had Exide defaulted, the District s allegations would amply suffice to support a default judgment in the District s favor. Exide never asserts that the District s allegations are insufficiently precise. Nor does it argue that the District s entitlement to relief is implausible. Its opposition is instead based on legal and policy arguments about the relationship between the various discharge exceptions enumerated in section 523(a), and ultimately rests on a misreading of the Supreme Court s decision in Cohen v. de la Cruz, 523 U.S. 213, 118 S. Ct (1998). At prior hearings, Exide s chief argument regarding the District s excepted-fromdischarge claims was that such claims are categorically time-barred. See, e.g., July 7, 2015 Tr. at 15:5 6; 25:19 21; 31: That argument now barely appears in Exide s opposition to the Excepted-from-Discharge Motion, relegated to three paragraphs at the end and relying exclusively on a single now-reversed, out-of-circuit bankruptcy court decision. 13. As is the case with the GUC Claims Motion, each side s points and authorities have been amply briefed, the matter can be resolved as a matter of law, and the District will be prepared to argue the Excepted-from-Discharge Motion at the February 2, 2016 non-evidentiary hearing. 14. Stay of the State Court Action: The briefing contemplated by the Resolving Order is now complete and the Court has the full picture of what claims the District is pursuing 10 See, e.g., Gen. Elec. Cap. Corp. v. Bui (In re Bui), 188 B.R. 274, 276 (Bankr. N.D. Cal. 1995) ( A plaintiff must demonstrate a prima facie case by competent evidence in order to obtain a Default Judgment. ); Citibank (S.D.), N.A. v. Spradley (In re Johnson), 313 B.R. 119, 126 (Bankr. E.D.N.Y. 2004) (same); Pfeiffer v. Wulster (In re Wulster), 2011 WL , at *2 (Bankr. D.N.J. Mar. 17, 2011) (same), aff d, 2012 WL (D.N.J. Feb. 22, 2012). 8

9 Case KJC Doc 4627 Filed 01/26/16 Page 9 of 25 and the legal basis of such pursuit. Exide and the District continue to disagree as to certain bankruptcy-specific legal issues (all of which are now fully briefed and before this Court), but there can be no serious claim that the District is the rogue regulator that Exide tried to depict in its Motion to Enforce (which alleged that the District willfully violated a federal injunction, i.e., this Court s Confirmation Order). 15. There is no basis for a continued stay of the California State Action. The District s lawsuit was never subject to the automatic stay, 11 which is why it was filed and actively litigated during Exide s bankruptcy case. Litigation included: (i) removal to and remand by the federal district court; (ii) repeated consensual amendments of the pleadings to accurately frame the allegations; (iii) production of more than 150,000 pages of documents; and (iv) an Exide-requested transfer to a special division of the California State Court that handles complex cases. This last development is particularly revealing. In February 2015 (only four months before filing the Motion to Enforce), Exide submitted a Complex Civil Case Questionnaire urging the California State Court to designate the California State Action as complex under that court s rules. Exide represented to the court: Case will involve discovery and testimony from percipient and expert witnesses regarding highly complex issues related to lead smelting, design and operation of smelting furnaces and air pollution control systems, source testing, facility permitting and interpretation of permits and air regulations, and air quality rules and rulemaking. The Second Amended Complaint contains 109 paragraphs of allegations and 20 causes of action relating to alleged violations all of which Exide denies of various permit conditions and environmental laws and regulations (including 12 different Air Quality Management District Rules and several Health and Safety Code statutes) dating back many years. Each cause of action or 11 See 11 U.S.C. 362(b)(4) (police and regulatory exception). See also March 2014 Stip. [Pfister Decl. Ex. 6] 1 (confirming that the District shall be permitted to prosecute the [California State Action] [n]otwithstanding the provisions of Bankruptcy Code section 362 ). 9

10 Case KJC Doc 4627 Filed 01/26/16 Page 10 of 25 group will require evaluation of separate alleged incidents involving separate facts, which could require testimony from more than 20 witnesses. Exide contends that each alleged violation could essentially be a separate mini-trial. Complex Civil Case Questionnaire (attached hereto as Exhibit A) 2(h) It was only after Exide s Plan went effective that Exide changed course and filed the Motion to Enforce, suddenly claiming that the District was acting improperly and in violation of the Confirmation Order. Critically, Exide identified one and only one basis for its Motion to Enforce: the Confirmation Order itself. 13 But the Confirmation Order states: Notwithstanding any otherwise applicable injunction in the Plan or in the confirmation order, the [District] shall be permitted to prosecute its [California State Action] subject to, and in accordance with the terms of, [the March 2014 Stipulation]. Conf. Order 31 (emphasis added). Exide s initial framing of the issue (its claim that the District was violating a federal court order and should be enjoined) was thus never the right vehicle for the Court to resolve the issues Exide sought to raise. 14 At the hearing on the Motion to Enforce, the District agreed to a voluntary stay of the California State Action to permit the parties to frame the bankruptcy- 12 See also id. 7(e) ( The parties are working relatively cooperatively through discovery disputes, but anticipate that given the magnitude of the case and issues involved there will be discovery motions or case management orders that will require the Court s involvement. Exide expects that there will be numerous summary judgment and in limine motions, which will involve substantial briefing and hearings. ). 13 See, e.g., Mot. to Enforce 20 (asserting that the District acted in violation of the clear mandate of the discharge and Plan Injunction, which are contained in the Confirmation Order); 3 n.3 (explaining that the relief sought in the Motion to Enforce is based on the Confirmation Order, obviating the need for an adversary proceeding (citing Fed. R. Bankr. P. 7001(7)). 14 Among other deficiencies, the Motion to Enforce was premised entirely on Exide s disagreement as to the scope of the District s prepetition general unsecured claim. The Motion to Enforce never addressed the District s timely filed Administrative Claim or the District s arguments based on Bankruptcy Code section 1141(d)(6). 10

11 Case KJC Doc 4627 Filed 01/26/16 Page 11 of 25 specific issues implicated by the Motion to Enforce in a procedurally proper context. 17. Now that the issues raised by the already-resolved Motion to Enforce are before the Court in an orderly and procedurally proper posture, and given Exide s concession that the California State Action will, at a minimum, go forward with respect to the District s prepetition claims (at least some of which Exide concedes are timely), see Mot. to Enforce Reply at 7 n.9 ( The District can prosecute the Third Amended Complaint in the California State Court, but not the New Claims contained therein. ), the District intends to argue at the February 2, 2016 nonevidentiary hearing that the parties should resume litigation in California State Court. 18. Resumption of the California State Action need not interfere with continued proceedings on any of the three matters before the Court (the GUC Claims Motion, Administrative Claim Objection, and Excepted-from-Discharge Motion), which may proceed in the ordinary course (including through any appeals). The District has always agreed that it would return to this Court at the conclusion of the California State Action so that this Court can determine questions of allowability, administrative priority, nondischargeability, and the like. Dated: January 26, 2016 Of Counsel: Neal Katyal HOGAN LOVELLS US LLP Columbia Square 555 Thirteenth Street, NW Washington, D.C and- Thomas P. Schmidt HOGAN LOVELLS US LLP 875 Third Avenue New York, New York /s/ Jack Shrum J Jackson Shrum, Esq. WERB & SULLIVAN 300 Delaware Avenue, Suite 1300 Wilmington, Delaware Telephone: (302) Facsimile: (302) and - Thomas E. Patterson (Pro Hac Vice) Robert J. Pfister (Pro Hac Vice) KLEE, TUCHIN, BOGDANOFF & STERN LLP 1999 Avenue of the Stars, Thirty-Ninth Floor Los Angeles, California Attorneys for the South Coast Air Quality Management District 11

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26 Case KJC Doc Filed 01/26/16 Page 1 of 2 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE In re: Chapter 11 EXIDE TECHNOLOGIES, Case No (KJC) Reorganized Debtor. 1 CERTIFICATE OF SERVICE The undersigned certifies that on January 26, 2016, I caused a true and correct copy of the foregoing to be served upon all parties via CM/ECF and upon the persons below in the manner indicated. Date: January 26, 2016 /s/ Jack Shrum J Jackson Shrum (#4757) 1 The last four digits of the Reorganized Debtor s taxpayer identification number are The Reorganized Debtor s corporate headquarters are located at Deerfield Parkway, Building 200, Milton, Georgia

27 Case KJC Doc Filed 01/26/16 Page 2 of 2 By Fax: The Debtor, Exide Technologies Attn: Phillip A. Damaska (fax: ) Office of the U.S. Trustee for the District of Delaware, Attn: Mark S. Kenney, Esq. (fax: ) By Counsel to the Reorganized Debtor, Skadden, Arps, Slate, Meagher & Flom LLP, Attn: Kenneth S. Ziman, Esq., J. Eric Ivester, Esq., Anthony Clark, and James J. Mazza, Jr. (ken.ziman@skadden.com, eric.ivester@skadden.com, anthony.clark@skadden.com, and james.mazza@skadden.com) Counsel to the Agent under the DIP Financing, Davis, Polk & Wardwell LLP, Attn: Damian S. Schaible, Esq. (damian.schaible@davispolk.com), and Richards, Layton & Finger, P.A., Attn: Mark D. Collins, Esq. (collins@rlf.com) Counsel to the Agent for the Debtor s Prepetition Secured Lenders, Greenberg Traurig, LLP, Attn: David B. Kurzweil, Esq. and Dennis A. Meloro, Esq. (kurzweild@gtlaw.com and melorod@gtlaw.com) Indenture Trustee for the Debtor s secured bond issuances, Foley & Lardner LLP, Attn: Mark F. Hebbeln (mhebbeln@foley.com) Indenture Trustee for the Debtor s Unsecured Bond Issuances, U.S. Bank, N.A., Global Corporate Trust Services, Attn. Cindy Woodward (cindy.woodward@usbank.com), and Arent Fox LLP, Attn: Andrew Silfen, Esq. (andrew.silfen@arentfox.com) Counsel to the Unofficial Committee of Senior Secured Noteholders, Paul, Weiss, Rifkind, Wharton & Garrison LLP, Attn: Alice Belisle Eaton, Esq. (aeaton@paulweiss.com) and Young Conaway Stargatt & Taylor, LLP, Attn: Pauline K. Morgan, Esq. (pmorgan@ycst.com) Counsel to the Official Committee of Unsecured Creditors, Lowenstein Sandler LLP, Attn: Kenneth A. Rosen, Esq., Sharon L. Levin, Esq, and Gerald C. Bender, Esq. (krosen@lowenstein.com, slevine@lowenstein.com, gbender@lowenstein.com, and Morris Nichols Arsht & Tunnell LLP, Attn: Robert J. Dehney, Esq. (rdehney@mnat.com) Counsel to the GUC Trust Trustee, Kelley Drye & Warren LLP, Attn. Dana P. Kane (dkane@kelleydrye.com) and Morris Nichols Arsht & Tunnel, Attn: Erin R. Fay (efay@mnat.com) Fee Examiner, Robert J. Keach, Esq. (rkeach@bernsteinshur.com) By Overnight Delivery (FedEx): Indenture Trustee for the Debtor s secured bond issuances, Wells Fargo Bank, N.A., 150 East 42nd Street, 40th Floor, New York, NY 10017, Attn: James R. Lewis The GUC Trust Trustee, Peter S. Kravitz, Province, Inc., 9209 Canwood Street, Suite 210, Agoura Hills, CA 91301