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UNITED STATES BANKRUPTCY COURT DISTRICT OF DELAWARE

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In re: WASHINGTON MUTUAL, INC. et al., Debtors.

Chapter II Case No. 08-12229 (MFW) Jointly Administered


Objection Deadline: January 4, 2012 at 4:00p.m. (ET) Hearing Date: January II, 2012 at 2:00p.m. (ET) Related Docket Nos.: 9178,9179,9180,9181

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WHITEBOX'S OBJECTION TO THE ADEQUACY OF THE DISCLOSURE STATEMENT FOR THE SEVENTH AMENDED JOINT PLAN OF AFFILIATED DEBTORS PURSUANT TO CHAPTER 11 OF THE UNITED STATES BANKRUPTCY CODE

Whitebox Asymmetric Partners, LP, Whitebox Multi Strategy Partners, L.P., Whitebox Concentrated Convertible Arbitrage Partners, L.P., Whitebox Credit Arbitrage Partners, L.P., lAM Mini-Fund 14 Limited, Pandora Select Partners, L.P. and Whitebox Special Opportunities Fund LP, Series B (collectively, "Whitebox")--each of whom hold Approved PIERS Claimsby and through their undersigned attorneys, hereby submit this Objection to the adequacy of the Disclosure Statement for the Seventh Amended Joint Plan of Affiliated Debtors Pursuant to Chapter 11 of the United States Bankruptcy Code (Docket No. 9179) (the "Disclosure Statement").' In support of this Objection, Whitebox respectfully states as follows:
SUMMARY OF ARGUMENT
1.

0q6=,!$ (y 0812229120104000000000008

The Disclosure Statement fails to adequately apprise the PIERS class that ( 1) the

question of which interest rate they are responsible for (federal or contract) is worth $743 million to them, (2) substantial, good faith appeals on that issue are pending, (3) those appeals are at risk of being equitably mooted if the Seventh Amended Plan is approved as is, and (4) a reserve Unless otherwise defined herein, capitalized terms shall have the meanings assigned to them in the Disclosure Statement.

would cure this defect in the plan, at no prejudice to the senior Noteholders, and make the Plan one that the PIERS class could approve without placing a significant portion of their recovery at risk. Whitebox therefore objects to the Disclosure Statement.
FACTUAL AND PROCEDURAL BACKGROUND The Debentures and the Trust Securities.

2.

In 2001, Debtor Washington Mutual, Inc. ("WMI") issued $1.15 billion in face

amount of Junior Subordinated Debentures, pursuant to the PIERS Indenture. 2 3. At the same time, Washington Mutual Capital Trust 2001 ("WMCT") was

established to purchase the debentures from WMI. WMCT sold units to investors in order to obtain the funds necessary to purchase the Debentures.
The Bankruptcy

4.

On September 26, 2008, the Debtors filed a voluntary case pursuant to Chapter II

of the Bankruptcy Code in the United States Bankruptcy Court for the District of Delaware. 5. In its January 28, 2010 order (Docket No. 2262), the Court allowed the PIERS

Trustee's Proof of Claim as a general unsecured claim in the total allowed amount of $789,353,506.50 (which included both preferred and common securities). This $789 million did not include post-petition interest.
The Modified Sixth Amended Joint Plan

6.

The Debtors presented the Modified Sixth Amended Joint Plan of Affiliated

Debtors (Docket No. 7040) for court approval in early 20 II. The Modified Sixth Amended Plan provided for the payment of post-petition interest of creditors' claims at their contract rate of interest rather than the federal judgment rate. By the "PIERS Indenture," Whitebox means the April 30, 2001 Indenture between WMI and The Bank of New York (as initial Trustee), as supplemented by the April 30, 2001 First Supplemental Indenture, together with the Base Indenture.
2
2

7.

Following numerous objections and briefing on both sides, on September 13,

2011, the Court denied confirmation of the Modified Sixth Amended Joint Plan, but recommended certain modifications to that Plan that, if made, would permit confirmation of the Debtors' later plan.

In

re

Washington

Mutual.

Inc.,

No.

08-12229

(MFW),

--- B.R. ----, 2011 WL 4090757 (Bankr. D. Del. Sept. 13, 2011) (Docket No. 8612). 8. In its September order, the Court concluded, among other things, that "the better

vtew is that the federal judgment rate is the appropriate rate to be applied under section 726(a)(5), rather than the contract rate." !d. at *30. 9. The Court then addressed the arguments of Wells Fargo (the PIERS Trustee) and

another PIERS holder that, given the Court's holding that Debtors were obligated to pay the federal judgment rate of interest, then "that is all the senior creditors are entitled to receive and the subordinated creditors are not obligated to pay them the difference between what the Debtors pay and their contract rate of interest." !d. at *37. 3 The senior Noteholders disagreed with the PIERS holders, arguing that the subordination provisions in the various creditors' contracts required that the subordinated creditors pay them contract interest. !d. In so arguing, the senior Noteholders relied on the language of the relevant subordination provision, which requires subordination to Senior Indebtedness, defined as "principal of, premium, if any, interest (including all interest accruing subsequent to the commencement of any bankruptcy or similar proceeding, whether or not a claim for post-petition interest is allowable as a claim in any such proceeding)." !d. at *38. 10.
3

The Court agreed with the senior Noteholders, holding that the

Wells Fargo Bank, National Association ("Wells Fargo")-in its capacity as PIERS Trustee-and Normandy Hill Capital L.P. ("Normandy Hill")-a PIERS holder-both argued that PIERS holders should only be obligated to pay interest to senior Noteholders at the federal judgment rate, not the contract rate (Docket Nos. 7939 and 7475, respectively).

subordination provisions adequately apprised the subordinated creditors that their payments were subordinate to all contractual post-petition interest, even if the Court allowed none. They certainly, therefore, were on notice that they were subordinate to contractual post-petition interest if the Court allowed some. Therefore, the Court concludes that to the extent the Rule of Explicitness is still applicable, the indentures at issue in this case meet its requirements. Therefore, the Plan provisions that give effect to the subordination provisions in the indentures and require subordinated creditors to pay senior creditors post-petition interest at the contract rate even though the Debtors are only required to pay interest at the federal judgment rate are not violative of the Bankruptcy Code.
!d. (emphasis in original).

11.

Wells Fargo and Normandy Hill filed their notices of appeal from the Court's

September Order on October 10,2011 and September 27,2011, respectively (Docket Nos. 8771 and 8671, respectively).
The Current Plan: The Seventh Amended Plan

12.

The Seventh Amended Joint Plan of Affiliated Debtors Pursuant to Chapter II of

the United States Bankruptcy Code (Docket No. 9178) ("Seventh Amended Plan") sets forth a Subordination Model which "implements the Debtors' interpretation of the respective subordination provisions" in the various indentures and other agreements and which sets forth the "relative priorities among" the holders of various claims-including Senior Notes Claims and PIERS Claims-and "the order in which such holders are entitled to receive payment of their Allowed Claims, Intercreditor Interest Claims and Postpetition Interest Claims." Disclosure Statement at 41-43; Seventh Amended Plan, Ex. H. As the Disclosure Statement describes, the Subordination Model incorporates the Court's decision that subordinated creditors-such as PIERS holders-must pay senior creditors post-petition interest at the contract rate. The Model defines an "Intercreditor Interest Claim," in pertinent part, as a Claim for interest accrued in respect of an outstanding obligation or liability during the period from the Petition Date up to and including the date of final payment in full of such Claim, arising from contractual subordination rights and payable in accordance with the Subordination Model, as required by section

51 O(a) of the Bankruptcy Code, calculated at the contract rate set forth in any agreement related to such Claim. Disclosure Statement at 41 (emphasis added); see also id. at 4 7 (describing that the Seventh Amended Plan "effectuates the payover by holders of Allowed PIERS Claims of some or all of the distributions from the Debtors ... to those holders of Allowed Claims that are ... senior in recovery to holders of Allowed PIERS Claims" "to the extent that such senior holders' Intercreditor Interest Claims (which are calculated at the applicable contract rate) exceed such holders' Postpetition Interest Claims (which are calculated at the federal judgment rate)"); id. Ex. C at v & n.( 4) (estimating recoveries based on assumption that "intercreditor claims are paid on a contractual rate basis"); Seventh Amended Plan, Ex. H. 13. Exhibit C to the Disclosure Statement, the Updated Liquidation Analysis, sets

forth the "estimated Cash proceeds, net of liquidation-related costs that would be available to the Debtors' creditors if the Debtors were to be liquidated in Chapter 7 cases." Ex. C at ii. The Updated Liquidation Analysis estimates that, of the $84 3 million owed to PIERS holders (between their approved claim of approximately $789 million and $54 million in post-petition interest), PIERS holders will recover only $74 million (for a 9% recovery), after they are subordinated to the more senior creditors. !d. at v. By contrast, the senior Noteholders are estimated to recover, on average, 115% of their pre-petition claims after various contribution issues are settled. !d. If PIERS holders were not so subordinated, the Updated Liquidation

Analysis estimates that they would recover $817 million, including all of their pre-petition losses. !d. The difference between what PIERS holders would receive if they were not so

subordinated and what they will receive after subordination at contract rates is thus $743 million.
I d.

ARGUMENT

TO BE APPROVED, A DISCLOSURE STATEMENT MUST CONTAIN ADEQUATE INFORMATION TO ALLOW A CREDITOR TO MAKE AN INFORMED JUDGMENT ABOUT THE PLAN. 14. In a Chapter 11 proceeding, creditors are given the right to vote on whether a plan

of reorganization should be accepted or rejected. See 11 U.S.C. 1126(a). In order to give meaning to creditors' voting rights, the Bankruptcy Code requires that, before voting, creditors be given a Court-approved disclosure statement describing any proposed plan. See id. 1125(b). 15. In order to be approved, the Disclosure Statement must contain adequate

information about the Seventh Amended Plan, "information of a kind, and in sufficient detail ... that would enable ... a hypothetical investor of the relevant class to make an informed judgment about the plan." 11 U.S.C. 1125(a)(l); see also Krystal Cadillac-Oldsmobile GMC Truck, Inc. v. General Motors Corp., 337 F.3d 314, 321 (3d Cir. 2003). The burden of proving that the Disclosure Statement contains adequate information falls on the Debtors. See In re Michelson, 141 B.R. 715,719 (Bankr. E.D. Cal. 1992). 16. The importance of full and adequate disclosure as required by section 1125 is not Courts have repeatedly held that "[t]he importance of full disclosure is

to be minimized.

underlaid by the reliance placed upon by the disclosure statement by the creditors and the court. Given this reliance, we cannot overemphasize the debtor's obligation to provide sufficient data to satisfy the Code standard of 'adequate information."' Oneida Motor Freight, Inc. v. United Jersey Bank, 848 F.2d 414, 417 (3d Cir. 1988); see also Momentum Mfg. Corp. v. Employee Creditors Comm. (In re Momentum Mfg. Corp.), 25 F.3d 1132, 1136 (2d Cir. 1994) ("Of prime importance in the reorganization process is the principle of disclosure."). 17. "[A] proper disclosure statement must clearly and succinctly inform the average

unsecured creditor what it is going to get, when it is going to get it, and what contingencies there

are to getting its distribution." In re Ferretti, 128 B.R. 16, 19 (Bankr. D.N.H. 1991); see also In re Stanley Hotel, Inc., 13 B.R. 926, 929 (Bankr. D. Colo. 1981) (noting that the purpose of a disclosure statement is to inform creditors, "as fully as possible, about the probable financial results of acceptance or rejection of a particular plan"). A disclosure statement should contain "[a]ll factors presently known to the plan proponent that bear upon the success or failure to the proposals contained in the plan." In re Microwave Prods. of America, Inc., 100 B.R. 376, 377 (Bankr. W.D. Tenn. 1989) (internal quotations and citation omitted); see also In re Cardinal Congregate I, 121 B.R. 760, 765 (Bankr. S.D. Ohio 1990) ("Generally, a disclosure statement must contain all pertinent information bearing on the success or failure of the proposals in the plan of reorganization."). THE DISCLOSURE STATEMENT DOES NOT CONTAIN ADEQUATE INFORMATION ABOUT THE RISK OF EQUITABLE MOOTNESS, DESPITE PIERS HOLDERS' MERITORIOUS APPEALS
A.

PIERS Holders Have Meritorious Appeals from the Court's September Order.

18.

As noted above, both Wells Fargo and Normandy Hill have filed notices of appeal

from the Court's September Order. This Court undoubtedly believes that the Order correctly decided the interest rate issue. But at a minimum, for the reasons discussed below and in Wells Fargo and Normandy Hill's objections (Docket Nos. 7939 and 7475, respectively), the issue is one for which a strong argument may be made on behalf of the PIERS holders. 19. First, under New York law-which governs the interpretation of the varwus In re Southeast

indentures-courts "can and should recognize the Rule of Explicitness."

Banking Corp., 93 N. Y.2d 178, 186 (N.Y. 1999) 4 The Rule of Explicitness requires "notice of

The indentures at issue are governed by New York law. E.g., In re Washington Mutual, 2011 WL 4090757, at *38 n.37.

precisely to what obligations one is agreeing to subordinate before that particular subordination will be enforced." Chemical Bank v. First Trust ofN Y., Nat 'I Ass 'n (In re Southeast Banking
Corp.), 188 B.R. 452, 465 (Bankr. S.D. Fla. 1995).

20.

According to the New York Court of Appeals, "New York law would require

specific language in a subordination agreement to alert a junior creditor to its assumption of the risk and burden of allowing the payment of a senior creditor's post-petition interest demand." In
re Southeast Banking Corp., 93 N. Y.2d at 186. The Court of Appeals' decision was based on its

understanding that the Rule of Explicitness was intended "to rectify the perceived inequity that results when, pursuant to a subordination agreement, a junior creditor's potential distributions go first to satisfy post-petition interest of a senior creditor." Id. at 185. To address this inequity,

courts have required "that the language of the instrument make absolutely clear that a subordinated creditor intended also to subordinate post-petition interest entitlements." !d. Other courts have come to similar holdings, even after the enactment of section 51 O(a) of the Bankruptcy Code (which some parties to this proceeding have argued undermined the Rule of Explicitness, an argument this Court rejected). In re Bank of New England Corp., 404 B.R. 17, 39 (Bankr. D. Mass. 2009), aff'd 426 B.R. 1 (D. Mass. 2010). 21. Here, as noted above, the Supplemental PIERS Indenture requires that PIERS

holders are to be subordinated to Senior Indebtedness, defined as "principal of, premium, if any, interest (including all interest accruing subsequent to the commencement of any bankruptcy or similar proceeding, whether or not a claim for post-petition interest is allowable as a claim in any such proceeding)." Docket No. 7939, Ex. A 1.1; see also id art. VI. Although the

Supplemental Indenture clearly provides that PIERS holders are subordinate to post-petition interest in the event of WMI's bankruptcy, it does not provide a definition of the term "interest."

See id. art. I. Nor does it provide that such subordination must be at the interest rate set forth in

the senior instrument, as did an example of language that the court in In re Ionosphere Clubs,
Inc. relied on as sufficient to put junior creditors on notice of their obligation to subordinate post-

petition interest at a particular rate. 134 B.R. 528, 535 n.l4 (Bankr. S.D.N.Y. 1991) (using the following illustration of "explicit language": "holders of Senior Debt shall be entitled to receive payment in full of ... the Senior Debt (including interest after the commencement of any such proceeding at the rate specified in the applicable Senior Debt, whether or not such interest is an allowable claim in any such proceeding)" (emphasis added)). Nor does the Supplemental

Indenture provide that the PIERS holders might be obligated to pay a higher rate of interest than would be allowed by a court to the senior Noteholders' on their claims for post-petition interest. 22. Second, this Court agreed with the senior Noteholders that the subordination

provision of the Supplemental Indentures gave PIERS holders sufficient notice of the potential application of two different interest rates. In re Washington Mutual, 2011 WL 4090757, at *38 (holding that the "subordination provisions adequately apprised the subordinated creditors that their payments were subordinate to all contractual post-petition interest, even if the Court allowed none" (emphasis in original) and thus, that creditors "were on notice that they were subordinate to contractual post-petition interest if the Court allowed some" (emphasis added)). 23. Respectfully, this conclusion was incorrect. Notification that PIERS holders

would be subordinated to payment of "interest" (a term undefined in the Supplemental Indenture) even if the Court allowed no post-petition interest, does not notify holders that
different rates of interest might apply. To conclude otherwise requires an inferential leap.

24.

Moreover, construing the term "interest" in two different ways-as the federal

judgment rate when measuring the amount of post-petition interest but as the contract rate when

measuring the amount of intercreditor interest-contradicts the general rule of construction in New York that the same terms appearing in different places in a contract or statute should be given the same meaning. See, e.g., Pierre v. Providence Wash. Ins. Co., 99 N.Y.2d 222, 241 (N.Y. 2002) ("Pursuant to settled federal rules of statutory construction, where the same word or phrase is used in different parts of a statute or act, the same meaning must attach to each.");

Barber Asphalt Paving Co. v. Standard Asphalt Co., 39 A.D. 617, 623, 58 N.Y.S. 405, 408 (1st
Dep't 1899) (applying the rule to construe a contract); In re Van Hoesen 's Will, 192 Misc. 689, 697, 81 N.Y.S.2d 392, 399 (Surrogate's Ct. Monroe County 1948) (applying the rule to construe a will); see also Taracorp, Inc. v. NL Indus., Inc., 73 F.3d 738, 744-745 (7th Cir. 1996) ("This principle of contract interpretation parallels the principle that we use when interpreting statutes to determine the intent of legislatures: we assume that the same words have the same meaning in a given act."). Given this widely-accepted default rule, the Court should not have concluded that PIERS holders should have expected the application of two different interest rates given the language of the Supplemental Indenture, which contemplated only that PIERS holders would be obligated to pay some measure of interest if the Court decided to award none to the senior creditors. 25. Wells Fargo and Normandy Hill can be expected to raise these arguments among

others in their appeals from the Court's September Order. Although the Disclosure Statement does mention the pending Wells Fargo and Normandy Hill appeals, see, e.g., Disclosure Statement at 5, it does not detail the reasons that Wells Fargo and Normandy Hill are appealing.

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B.

If PIERS Holders Are Not Informed About the Risk That Piers Holders' Appeals Will Be Deemed Equitably Mooted if the Plan is Confirmed, They Will Not Have Adequate Information to Make an Informed Decision About Whether to Approve or Reject the Plan.

26.

Despite the strength of the Wells Fargo and Normandy Hill appeals, confirmation

of the Seventh Amended Plan will risk that those appeals will be equitably mooted by the time they are heard on appeal. The Disclosure Statement makes no reference at all to this risk. 27. As the Third Circuit has recognized, the doctrine of equitable mootness "dictates

that an appeal should be dismissed, even if a court has jurisdiction and is in a position to grant relief, if 'implementation of that relief would be inequitable."' In re Zenith Elecs. Corp., 329 F.3d 338, 343 (3d Cir. 2003) (citing In re PWS Holding Corp., 228 F.3d 224, 236 (3d Cir. 2000)). In this context, the term "mootness" serves as a "shortcut for a court's decision that the fait accompli of a plan confirmation should preclude further judicial proceedings." !d. In such situations, although an appellate court may be in a position to grant relief, it may decline to do so because a contrary ruling would lead to a perverse outcome in upsetting a plan that has been confirmed and substantially consummated. E.g., id. at 343-44; see also Magten Asset Mgmt. Corp. v. Northwestern Corp. (In re Northwestern Corp.), No. 03-12872 JLP, CIVA 04-1389 JJF, 2006 WL 2801871, at *2 (D. Del. Sept. 29, 2006) (dismissing appeal as equitably moot); Grimes
v. Genesis Health Ventures, Inc (In re Genesis Health Ventures, Inc.), 280 B.R. 339, 343 (D.

Del. 2002) (same). 28. As the Third Circuit described, the doctrine has been crafted to apply in those

situations where "a successful appeal would undo a complicated plan of reorganization." In re Zenith, 329 F.3d at 347. It is particularly apt to apply the equitable mootness doctrine when the liquidation is a complex one that does not involve "discrete and relatively simple transactions aimed at disposing of the debtor's assets in the short term." In re New Century TRS Holdings,

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Inc., 407 B.R. 576, 588 (D. Del. 2009); see also In re Zenith, 329 F.3d at 345 (describing prior
appeal as equitably mooted where the "plan required eighteen months of negotiation between several parties regarding hundreds of millions of dollars, restructured the debt, assets, and management of a major corporation, and successfully rejuvenated [the debtor)" and where plan could only be reversed with "great difficulty and inequity"). 29. As this Court well knows, this liquidation is tremendously complex. The Seventh

Amended Plan is the result of years of negotiations and involves billions of dollars. 30. Accordingly, it is possible that if the plan is confirmed, the appeals by Wells

Fargo and Normandy Hill, regardless of their underlying strength, may be found to be equitably mooted. The Disclosure Statement makes no mention at all of this risk.
It is therefore

inadequate because it fails to provide PIERS holders with an understanding of "what [they are] going to get, when [they are] going to get it, and what contingencies there are to getting its distribution."
E.g., In re Ferretti, 128 B.R. at 19.

It fails to provide PIERS holders with

"information of a kind, and in sufficient detail ... that would enable ... a hypothetical investor of the relevant class to make an informed judgment about the plan." II U.S. C. 1125(a)(l). Corrective disclosures are therefore necessary. 31. Alternatively, if the Plan were to provide for a reserve in the amount of at least

$743 million, such a reserve would prevent the risk that the Wells Fargo and Normandy Hill appeals will be equitably mooted. A reserve would preserve the status quo until the appeal could be decided. The Disclosure Statement is inadequate because it makes no mention of the fact that a reserve of the amount at issue would eliminate the risk of equitable mootness and enable PIERS holders to approve the Plan without sacrificing significant rights. If such a reserve is not necessary because sufficient cash exists, the Disclosure Statement should explain how that would

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be so not only on the first day after confirmation but for the many months afterward in which an appeal might be pending. In any event, corrective disclosures are necessary. THE DISCLOSURE STATEMENT DOES NOT CONTAIN ADEQUATE INFORMATION REGARDING THE IMPACT OF THE COURT'S DECISION THAT PIERS HOLDERS ARE OBLIGATED TO PAY SENIOR CREDITORS AT CONTRACT RATES 32. Seeking confirmation of the Seventh Amended Plan, the Disclosure Statement

outlines the costs from further delay in confirmation. E.g., Disclosure Statement at 10-11, 237 (noting, for example, that the "detrimental effects of further delay in confirmation and consummation of a plan in the Chapter 11 Cases-now over three years old-should not be underestimated" and that "[ e]ach day of delay is accompanied by a continued accrual of interest and fees and the attendant depletion of estate assets and increase in total Claims, all of which results in eroded recoveries for the Debtors' junior-most Creditors"). The Disclosure Statement also notes that "Debtors estimate that if the Effective Date is delayed even three (3) months past February 29, 2012, recovery for holders of Allowed PIERS Claims in Class 16 ... will be wiped
out." ld. at 10 (emphasis in original).

33.

The Disclosure Statement's discussion of the costs from a delay in confirmation is

one-sided, as it contains no discussion of the magnitude of the Court's decision that PIERS holders are obligated to compensate senior Noteholders at contract rates (and the Seventh Amended Plan's incorporation of that decision). Rather, it is left for PIERS holders to piece together that this one decision will cost PIERS holders $743 million and may have the effect of putting equity before the PIERS holders. The Disclosure Statement must be corrected to note the financial impact of this issue. Only then will PIERS holders have sufficient information to

enable them "to make an informed judgment about the plan," as is required by II U.S.C.
ll25(a)(l ).

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RESERVATION OF RIGHTS

34.

To the extent that the Debtors modify, amend, or supplement the Disclosure

Statement, Whitebox hereby fully reserves its rights to file a further objection to the adequacy of the Disclosure Statement. Whitebox also reserves all rights to join in any objections to the adequacy of the Disclosure Statement or confirmation of the Seventh Amended Joint Plan that may be asserted by others.
CONCLUSION WHEREFORE, Whitebox respectfully requests that the Court order the Debtors to issue

corrective disclosures consistent with this Objection. Dated: January 4, 2012 Respectfully submitted,
MACAULEY LLC

Thomas G. Macauley ( 300 Delaware Ave., S e 760 Wilmington, DE 19801 Telephone: (302) 656-0100 Facsimile: (302) 562-6141
-and-

ROSS & ORENSTEIN LLC Jeff Ross John B. Orenstein Kelly K. Pierce 222 South Ninth Street, Suite 470 Minneapolis, MN 55402 Telephone: (612) 436-9800 Facsimile: (612) 436-9819 ATTORNEYS FOR WHITEBOX

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CERTIFICATE OF SERVICE
I hereby certify that on this 4 1h day ofJanuary 2012,2011, a copy of the foregoing was served in the marmer indicated on: Charles E. Smith, Esquire Washington Mutual, Inc. 925 Fourth Avenue, Suite 2500 Seattle, WA 981 04 FedEx Brian S. Rosen, Esquire Wei! Gotshal & Manges LLP 767 Fifth Avenue New York, NY 10153 Fax: (212) 310-8007 Peter Calamari, Esquire Quinn Emanuel Urquhart & Sullivan, LLP 55 Madison Avenue, 22"d Floor New York, NY 10010 Fax: (212) 849-7100 Fred S. Hodara, Esquire Akin Gump Strauss Hauer & Field LLP One Bryant Park New York, NY I 0036 Fax: (212) 872-1002 David B. Stratton, Esquire Pepper Hamilton LLP Hercules Plaza, Suite 51 00 1313 N. Market Street Wilmington, DE 1980 I Fax: 421-8390 Robert A. Sacks, Esquire Sullivan & Cromwell LLP 125 Broad Street New York, NY I 0004 Fax: (212) 558-3588 Jane Leamy, Esquire Office of the United States Trustee 844 King Street, Room 2207 Lock Box 35 Wilmington, DE 19899 Fax: (302) 573-6497 Mark D. Collins, Esquire Richards Layton & Finger P.A. One Rodney Square 920 N. King Street Wilmington. DE 19801 Fax: 651-7701 Neil R. Lapinski, Esquire Elliott Greenleaf II 05 Market Street, Suite 1700 Wilmington, DE 19801 Fax: 384-9399 Edgar G. Sargent, Esquire Susman Godfrey, L.L.P. 120 I Third Avenue, Suite 3800 Seattle, WA 98101 Fax: (206) 516-3883 William P. Bowden, Esquire Ashby & Geddes, P.A. 500 Delaware Avenue, 81h Floor Wilmington, De 19801 Fax: 654-2067 Adam G. Landis, Esquire Landis Rath & Cobb LLP 919 Market Street, Suite 1800 Wilmington, DE 19801 Fax: 467-4450

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Thomas Califano, Esquire DLA Piper US LLP 1251 Avenue of the Americas New York, NY 10020 Fax: (212) 335-4501

Blake M. Cleary, Esquire Young Conaway Stargatt & Taylor, LLP The Brandywine Building 1000 West Street, 171h Floor Wilmington, DE 1980 I Fax: 571-1253

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