FILED: NEW YORK COUNTY CLERK 04/25/2012 INDEX NO /2011 NYSCEF DOC. NO. 56 RECEIVED NYSCEF: 04/25/2012

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1 FILED NEW YORK COUNTY CLERK 04/25/2012 INDEX NO /2011 NYSCEF DOC. NO. 56 RECEIVED NYSCEF 04/25/2012 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK x Plaintiffs, against DAVID BONDERMAN, et al., Defendants x CORTLANDT STREET RECOVERY CORP., and WILMINGTON TRUST COMPANY, as Trustee, Index No /2011 AFFIRMATION OF ROBERT S. FISCHLER ROBERT S. FISCHLER, an attorney duly admitted to practice before the courts of the State of New York, hereby affirms as follows 1. I am member of the law firm Ropes & Gray LLP, attorneys for defendant Apax Partners LLP ( Apax ) and the Moving Defendants (defined below) affiliated with or employed by Apax (collectively, the Apax Defendants ). I submit this affirmation in support of the motion of the Apax Defendants and defendant TPG Capital Management, L.P. (formerly known as TPG Capital, L.P.) ( TPG ), and the Moving Defendants affiliated with or employed by TPG (together with the Apax Defendants, the Moving Defendants ), to dismiss the complaints on grounds of prior dissolution, lack of personal jurisdiction, inconvenient forum, lack of standing, and failure to state a cause of action, in two related actions the action bearing Index No /2011 (the PIK Notes Action ) and the action bearing Index No /2011 (the Sub Notes Action, and together with the PIK Notes Action, the Actions ). 1 1 The Moving Defendants are Apax, TPG, David Bonderman, James Coulter, Martin Halusa, John F. Megrue, Jr., Matthias Calice, TPG Capital-New York, Inc. (incorrectly named as TPG Capital-N.Y., LLP, see Affidavit of Clive Bode 5 (filed herewith)), Apax Partners, L.P., TPG Partners IV, L.P., TPG Advisors IV, Inc., TPG GenPar IV, L.P., TPG Advisors II, Inc., T 3 GenPar II, L.P., T 3 Partners II, L.P., T 3 Parallel II, L.P., Apax Partners Europe Managers Ltd,

2 2. Copies of the complaints in the PIK Notes Action and the Sub Notes Action are annexed hereto as Exhibits A and B, respectively. Relevant excerpts from the exhibits to the complaints are included in Exhibits A and B. 3. In the PIK Notes Action, plaintiffs allege that the Moving Defendants are liable for losses incurred by the holders of certain payment-in-kind notes (the PIK Notes ) issued in December 2006 by Hellas Telecommunications Finance, S.C.A. ( Hellas Finance ), a Luxembourg partnership limited by shares. The PIK Notes were guaranteed by Hellas Telecommunications I, S.à r.l., a Luxembourg private limited liability company. Plaintiffs allege that the PIK Notes went into default in November Ex. A In the Sub Notes Action, plaintiff alleges that the Moving Defendants are liable for losses incurred by the holders of certain subordinated notes (the Sub Notes ) issued in December 2006 by Hellas Telecommunications II, S.C.A. ( Hellas II ), a Luxembourg partnership limited by shares. Plaintiff alleges that the Sub Notes went into default in October Ex. B Both complaints primarily assert fraudulent conveyance claims against the Moving Defendants. Specifically, plaintiffs challenge payments made in December 2006 by Hellas Telecommunications, S.à r.l. ( Hellas ), a Luxembourg private limited liability company that was the ultimate parent of Hellas Finance and Hellas II, to redeem certain securities ( CPECs ) from Hellas s owners (the Sponsors ) in December Ex. A ; Ex. B The Sponsors were investment funds located outside of New York in Guernsey, the Apax Europe VI GP Co. Limited, Apax Europe VI GP., L.P., Apax Europe VI-A, L.P., Apax Europe VI-I, L.P., Troy L.P. Inc., Apax WW Nominees Ltd., TPG Troy LLC, and T3 Troy LLC. 2 Annexed hereto as Exhibit C is a copy of the terms and conditions from the CPEC issuance in January

3 British Virgin Islands, the United Kingdom, the Cayman Islands, and Delaware. Ex. A 49; Ex. B 53. The Sponsors were advised by affiliates of Apax and TPG, which are private equity firms organized as limited partnerships under United Kingdom and Texas law, respectively. 6. In addition to the Sponsors, several individuals and entities affiliated with Apax and TPG are named as defendants. As alleged, with the exception of two entities (that were not involved in the events underlying plaintiffs claims), none of the Apax or TPG-related defendants are domiciled in New York; indeed, many are domiciled in Europe or other locations outside the United States. Ex. A 30-31, 38, 40-41, 48-49; Ex. B 31-32, 39, 41-42, According to published reports, in the first quarter of 2007, just a few months after the CPEC redemptions underlying plaintiffs claims, the Sponsors sold all of their Hellas shares to Weather Investments S.p.A. ( Weather ), a company limited by shares under the laws of Italy. As reported, Weather paid approximately 3.4 billion (including assumed debt) for Hellas. See Exhibit D. 8. In November 2009, Hellas II, the issuer of the Sub Notes, was placed into administration (similar to a Chapter 11 bankruptcy proceeding in the United States) in London, England under the auspices of The High Court of Justice of the United Kingdom and Wales (the High Court of Justice ). In November 2011, the administration was converted to a compulsory liquidation, and liquidators were appointed to represent Hellas II and its creditors. A copy of the judgment of the High Court of Justice converting the Hellas II administration to a liquidation is annexed hereto as Exhibit E. 9. On or about December 16, 2011, the Hellas II liquidators commenced a lawsuit in Luxembourg (the Luxembourg Proceeding ) seeking relief under Luxembourg law concerning 3

4 the CPEC redemptions. A copy of a certified English translation of the civil summons served in the Luxembourg Proceeding is annexed hereto as Exhibit F. 10. Investigation by my firm and counsel for the TPG-related defendants indicates that substantially all of the relevant documents and witnesses with knowledge of the relevant facts are in Luxembourg or elsewhere in Europe, and none are in New York. Such witnesses include, among others the officers, managers, and directors of Hellas and its affiliates who approved or otherwise played a role in the CPEC redemptions; 3 the financial and legal advisors who advised Hellas or the Sponsors in connection with the CPEC redemptions; the Apax and TPG personnel who are knowledgeable about the Hellas investment generally and the CPEC redemptions specifically; and representatives of Weather, the entity that owned and operated Hellas for almost three years before the PIK Notes and Sub Notes went into default. 11. In addition, many of the PIK Notes and Sub Notes holders that plaintiffs are purporting to represent in this Court appear to reside in Europe. For example, plaintiff Cortlandt Street Recovery Corporation ( Cortlandt ) alleges that it is acting on behalf of SPQR Capital LLP ( SPQR ), a London-based hedge fund that claims to hold substantial positions in both the PIK Notes and the Sub Notes. Annexed hereto as Exhibit H is a copy of the Affidavit of Laurence Sudwarts of SPQR, dated June 15, 2011, filed by Cortlandt in its initial suit on the PIK Notes in this Court (Index No /2010) ( Cortlandt I ). Mr. Sudwarts states that SPQR own[s] more than 25% of the outstanding PIK Notes.... Ex. H 2. 3 Annexed hereto as Exhibit G is a copy of the December 21, 2006 redemption agreement among Hellas and the Sponsors. It recites that the redemption price for the CPECs was determined by [Hellas s] Board of Managers... by resolutions adopted on December 18, On information and belief, all of the members of the Hellas Board of Managers at the time of the CPEC redemptions reside in Europe. 4

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