Case KG Doc 2115 Filed 02/10/17 Page 1 of 4 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE.

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1 Case KG Doc 2115 Filed 02/10/17 Page 1 of 4 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE In re: FAH LIQUIDATING CORP., et al. 1 (f/k/a FISKER AUTOMOTIVE HOLDINGS, INC.), Debtors. Emerald Capital Advisors Corp., in its capacity as Liquidating Trustee of the FAH Liquidating Trust, Appellant, Chapter 11 Bankruptcy Case No (KG) Jointly Administered Appeal from the Bankruptcy Court Civil Action No (GMS) v. Hunse Investments, L.P. et al. Appellees. APPELLEES COUNTER-DESIGNATION OF ITEMS TO BE INCLUDED IN THE RECORD ON APPEAL AND COUNTER-STATEMENT OF THE ISSUE ON APPEAL The undersigned, bankruptcy counsel for Hunse Investments, L.P., Sandor Master Capital Fund, John S. Lemak IRA Rollover, Atlas Capital Management, L.P., Southwell Partners, Dane C. Andreeff, Pinnacle Family Office Investments, L.P., SAML Partners, and Brian C. Smith (the Appellees ) in this matter, has reviewed the Designation of the Record on Appeal and Statement of Issue to be Presented submitted by Emerald Capital Advisors Corp., in its capacity as Liquidating Trustee of the FAH Liquidating Trust [Docket No. 2109] ( Appellant s Designation ), and designates the following additional items to be included in the record on appeal and makes the following counterstatement of the issue to be presented on appeal: 1 The Debtors are FAH Liquidating Corp. (f/k/a Fisker Automotive Holdings, Inc.) and FA Liquidating Corp. (f/k/a Fisker Automotive, Inc.) /2 02/10/

2 Case KG Doc 2115 Filed 02/10/17 Page 2 of 4 COUNTER-DESIGNATION OF ITEMS TO BE INCLUDED IN THE RECORD ON APPEAL 1. The Appellees designate the following additional items from Case No (KG) for inclusion in the record on appeal. Such counter-designation of pleadings and matters of record includes all exhibits attached or referred to in such pleadings and matters of record: a. Plaintiffs' Motion Seeking Hearing on Shortened Notice Regarding Plaintiffs' Motion for Leave to File Sur-Reply to Liquidating Trustee's Third Omnibus Objection to Certain Proofs of Claim (Equity Claims and Reclassification Claims) (Substantive) [Docket No. 2038]. b. Plaintiffs' Motion for Leave to File Sur-Reply to Reply of Liquidating Trustee (I) In Response to Plaintiffs' Response to Debtors' Third Omnibus Objection to Certain Proofs of Claim (Equity Claims and Reclassification Claims) (Substantive) And (II) In Further Support of the Debtors' Third and the Liquidating Trustee's Fifth Omnibus Objections with Respect to the Direct Purchaser Proofs of Claim and Membership Unit Purchaser Proofs of Claim Filed by the Securities Plaintiffs [Docket No. 2039]. c. Order Shortening Notice Regarding Plaintiffs' Motion for Leave to File Sur-Reply to Liquidating Trustee's Third Omnibus Objection to Certain Proofs of Claim (Equity Claims and Reclassification Claims) (Substantive) [Docket No. 2048]. d. Order Authorizing Plaintiffs to File Sur-Reply in Response to the Liquidating Trustee's Reply in Support of the Omnibus Objection [Docket No. 2050]. e. Middlebury Ventures II LLC Confidential Private Placement Memorandum, admitted into evidence at the hearing on Debtors Third Omnibus Objection to Certain Proofs of Claim (Equity Claims and Reclassification Claims) (Substantive) and Fifth Omnibus Objection to Certain Proofs of Claim (Amended and Superseded Claims, Wrong Debtor Claim, Duplicate Claims, Late Filed Claims, and Equity Claims) (Non-Substantive), held November 29, See November 29, 2016 Hr g Tr. at 50 [Docket No. 2087]. f. Proof of Claim No. 211 submitted on behalf of Hunse Investments, L.P. g. Proof of Claim No. 215 submitted on behalf of Sandor Master Capital Fund. h. Proof of Claim No. 218 submitted on behalf of John S. Lemak IRA Rollover. -2-

3 Case KG Doc 2115 Filed 02/10/17 Page 3 of 4 i. Proof of Claim No. 224 submitted on behalf of Atlas Capital Management, L.P. j. Proof of Claim No. 250 submitted on behalf of Southwell Partners. k. Proof of Claim No. 261 submitted on behalf of Dane C. Andreeff. l. Proof of Claim No. 300 submitted on behalf of Pinnacle Family Office Investments, L.P. m. Proof of Claim No. 498 submitted on behalf of SAML Partners. n. Proof of Claim No. 569 submitted on behalf of Brian C. Smith. 2. The Appellees counter-designated items include all exhibits, appendices, and other attachments thereto. Appellees hereby re-designate each of the items identified in Appellant s Designation to include any such exhibits, appendices, and other attachments. COUNTER-STATEMENT OF ISSUE ON APPEAL 3. The Appellees submit the following counter-statement of the issue on appeal: Whether the Bankruptcy Court correctly determined that Appellees claims based upon the purchase of membership units in a special purpose vehicle that owned the Debtor s preferred stock but was not a Debtor or an affiliate of the Debtor pursuant to 11 U.S.C. 101(2) are subject to mandatory subordination under 11 U.S.C. 510(b) of the Bankruptcy Code. Date: February 10, 2017 By: /s/ Norman M. Monhait Norman M. Monhait [DE 1040] ROSENTHAL, MONHAIT & GODDESS, P.A. 919 N. Market Street, Suite 1401 P.O. Box 1070 Wilmington, Delaware (Telephone) (Facsimile) -and- -3-

4 Case KG Doc 2115 Filed 02/10/17 Page 4 of 4 Michael S. Etkin, Esq. Nicole M. Fulfree, Esq. LOWENSTEIN SANDLER LLP 65 Livingston Avenue Roseland, New Jersey (Telephone) (Facsimile) Bankruptcy Counsel to Appellees KLAFTER OLSEN & LESSER LLP Kurt B. Olsen, Esq Connecticut Ave., N.W. Suite 200 Washington, DC (Telephone) (Facsimile) BERGER & MONTAGUE, P.C. Todd S. Collins, Esq Locust Street Philadelphia, PA (Telephone) (Facsimile) Counsel to Appellees -4-

5 Case KG Doc Filed 02/10/17 Page 1 of 2 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE In re: FAH LIQUIDATING CORP., et al (f/k/a FISKER AUTOMOTIVE HOLDINGS, INC.), Debtors. Emerald Capital Advisors Corp., in its capacity as Liquidating Trustee of the FAH Liquidating Trust, Appellant, Chapter 11 Bankruptcy Case No (KG) Jointly Administered Appeal from the Bankruptcy Court Civil Action No (GMS) v. Hunse Investments, L.P. et al. Appellees. CERTIFICATE OF SERVICE I, Norman M. Monhait, hereby certify that on this 10 th day of February, 2017, I caused the foregoing Appellees Counter-Designation Of Items To Be Included In The Record On Appeal And Counter-Statement Of The Issue On Appeal to be served electronically on all parties registered with the CM/ECF System for the United States Bankruptcy Court for the District of Delaware in this case and upon the following in the manner indicated. Hand Delivery Mark Minuti, Esquire SAUL EWING LLP 1201 North Market Street, Suite 2300 P.O. Box 1266 Wilmington, Delaware Via First Class Mail William R. Baldiga, Esquire BROWN RUDNICK LLP Seven Times Square New York, NY 10036

6 Case KG Doc Filed 02/10/17 Page 2 of 2 Via First Class Mail Sunni P. Beville, Esquire Brian T. Rice, Esquire BROWN RUDNICK LLP One Financial Center Boston, Massachusetts /s/ Norman M. Monhait Norman M. Monhait (Bar No. 1040)