UNITED STATES BANKRUPTCY COURT DISTRICT OF DELAWARE IN RE: . . . NEW CENTURY TRS HOLDINGS, . INC., et al., . . Debtors. . . . . . . . . . . . . . . . . . . Case No.

07-10416-KJC

824 Market Street Wilmington, DE 19801 April 19, 2007 3:09 p.m.

TRANSCRIPT OF HEARING BEFORE HONORABLE KEVIN J. CAREY UNITED STATES BANKRUPTCY COURT JUDGE APPEARANCES: For the Debtors: O'Melveny & Myers LLP By: SUZZANNE UHLAND, ESQ. Embarcadero Center West 275 Battery Street San Francisco, CA 94111-3305 O'Melveny & Myers LLP By: BRIAN METCALF, ESQ. 400 South Hope Street Los Angeles, CA 90071-2899 For Carrington Capital Management, LLC & Carrington Mortgage Services, LLC: Audio Operator: Mayer, Brown, Rowe & Maw LLP By: THOMAS S. KIRIAKOS, ESQ. SEAN SCOTT, ESQ. 71 S. Wacker Chicago, Illinois 60606-4637 Brandon McCarthy

Proceedings recorded by electronic sound recording, transcript produced by transcription service. _______________________________________________________________ J&J COURT TRANSCRIBERS, INC. 268 Evergreen Avenue Hamilton, New Jersey 08619 E-Mail: jjcourt@optonline.net (609) 586-2311 Fax No. (609) 587-3599

2 APPEARANCES (Cont'd.) For Carrington Capital Management, LLC & Carrington Mortgage Services, LLC: For the Unsecured Creditors Committee: Womble Carlyle Sandridge & Rice By: STEVEN K. KORTANEK, ESQ. 222 Delaware Avenue, 15th Floor Wilmington, DE 19801 Blank Rome, LLP By: BONNIE GLANTZ FATELL, ESQ. Chase Manhattan Centre 1201 Market Street Suite 800 Wilmington, DE 19801 Hahn & Hessen LLP By: MARK T. POWER, ESQ. 488 Madison Avenue 14th and 15th Floor New York, NY 10022 For the U.S. Trustee: Office of the U.S. Trustee By: JOSEPH McMAHON, ESQ. 844 King Street Suite 2313 Lockbox 35 Wilmington, DE 19801 Rosenthal, Monhait, Gross & Goddess, PA. By: NORMAN M. MONHAIT, ESQ. 919 Market Street Suite 1401 P.O. Box 1070 Wilmington, DE 19899 Weil, Gotshal & Manges LLP By: ROBERT JORDAN, ESQ. JACQUELINE MARCUS, ESQ. 767 Fifth Avenue New York, NY 10153 Hennigan, Bennett & Dorman, LLP By: BRUCE BENNETT, ESQ. JOSHUA D. MORSE, ESQ. BRENT TRUITT, ESQ. 601 South Figueroa Street Suite 3300 Los Angeles, CA 90017 J&J COURT TRANSCRIBERS, INC.

For Kochak:

For Lehman:

For the Debtors:

3 APPEARANCES (Cont'd.) Richards, Layton & Finger, P.A. By: MARCOS A. RAMOS, ESQ. MARK COLLINS, ESQ. CHRISTOPHER M. SAMIS, ESQ. One Rodney Square 920 N. King Street P.O. Box 551 Wilmington, DE 19899 For GECC: Gebhardt & Smith LLP By: MIKE GALLERIZZO, ESQ. 401 East Pratt Street Ninth Floor World Trade Center Baltimore, MD 21202 Kirkland & Ellis, LLP By: SHIRLEY CHO, ESQ. 777 South Figueroa Street Los Angeles, CA 90017 Munsch Hardt Kopf & Harr By: MARK RALSTON, ESQ. 3800 Lincoln Plaza 500 N. Akard Street Dallas, TX 75201-6659 Fox Rothschild By: ANTHONY M. SACCULLO, ESQ. Citizens Bank Center, Suite 1300 919 North Market Street Wilmington, DE For RBC: Monzack and Monaco, P.A. By: RACHEL B. MERSKY, ESQ. FRANK MONACO, ESQ. 1201 North Orange Street Suite 400 Wilmington, DE 19899 Nixon Peabody, LLP By: DENNIS J. DREBSKY, ESQ. 437 Madison Avenue New York, NY 10022

For Greenwich:

For Positive Software:

For Deutsche Bank National Trust Co.:

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4 APPEARANCES (Cont’d): Pepper Hamilton, LLP By: DAVID B. STRATTON, ESQ. Hercules Plaza Suite 5100 1313 Market Street P.O. Box 1709 Wilmington, DE 19899 Stevens & Lee By: JOSEPH GREY, ESQ. JOSEPH HUSTON, ESQ. 1105 North Market Street Wilmington, DE 19801 Bernstein & Shur By: ROBERT KEACH, ESQ. 100 Middle Street West Tower Portland, ME 04101 For Wells Fargo/C-Bass: Hunton & Williams By: J.R. SMITH, ESQ. Riverfront Plaza East Tower 951 East Byrd Street Richmond, VA 23219 Eckert Seamans By: MICHAEL BUSENKELL, ESQ. 300 Delaware Avenue Suite 1210 Wilmington, DE 19801 For UBS: Ashby & Geddes By: GREGORY ALAN TAYLOR, ESQ. 500 Delaware Avenue 8th Floor P.O. Box 1150 Wilmington, Delaware 19899 Potter, Anderson & Corroon, LLP By: LAURIE SELBER SILVERSTEIN, ESQ. Hercules Plaza 1313 North Market Street Wilmington, DE 19801

For Premier:

For Bank of America, N.A.:

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5 APPEARANCES (Cont'd.): For Countrywide & GMAC CF: Edwards & Angell, Palmer & Dodge, LLP By: WILLIAM CHAPMAN, ESQ. 919 North Market Street Wilmington, DE 19801 Campbell & Levine, LLC By: MARK T. HURFORD, ESQ. 800 N. King Street Suite 300 Wilmington, DE 19801 Klehr, Harrison, Harvey, Branzburg & Ellers LLP By: MICHAEL YURKEWICZ, ESQ. 260 South Broad Street Philadelphia, PA 19102-5003 Morris, Nichols, Arsht & Tunnell LLP By: GREGORY W. WERKHEISER, ESQ. Chase Manhattan Centre, 18th Floor 1201 North Market Street Wilmington, DE 19899-1347 Squire, Sanders & Dempsey, L.L.P. By: JOSEPH RODGERS, ESQ. 4900 Key Tower 127 Public Square Cleveland, OH 44114 Bingham McCutchen, LLP By: RICHARD AGINS, ESQ. One State Street Hartford, CT 06103 Kaye Scholer LLP By: NICHOLAS CREMONA, ESQ. 425 Park Avenue New York, NY 10022 Murray Capital Management, Inc. By: MARTI MURRAY

For Citi Corp.:

For Alaska Seaboard Limited Partners:

For Morgan Stanley Company:

For Squire, Sanders & Dempsey:

For Deutsche Bank:

For Bank of America:

For Murray Capital Management, Inc.:

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6 APPEARANCES (Cont'd.) For DB Structured Products: Young, Conaway, Stargatt & Taylor By: ROBERT BRADY, ESQ. 1000 West Street 17th Floor Wilmington, DE 19801 Connolly Bove Lodge & Hutz By: MARC PHILLIPS, ESQ. The Nemours Building 1007 North Orange Street Wilmington, DE 19899

For Washington Mutual:

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7 INDEX WITNESSES DAVID S. KURTZ Cross Examination by Mr. Gallerizzo Cross Examination by Mr. Power ANTHONY MEOLA Cross Examination by the Court Redirect Examination by Ms. Uhland EXHIBIT UST-1 D-1 Privacy Policy New Century Mortgage Corporation bylaws I.D. 43 132 PAGE 77 79 134 135 EVD. 44 133

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8 1 2 THE COURT: MR. RAMOS: Good morning. Marcos Ramos, Richards Layton & Finger on Your Honor, with your indulgence, we

3 behalf of the debtor.

4 would like to take one matter from the agenda out of order if 5 we could. Your Honor has scheduled a status conference in the

6 matter of Alaska Seaboard v. New Century. 7 8 THE COURT: MR. RAMOS: Yes. We thought that it might make some sense

9 to just try to address that matter first if Your Honor allows 10 that. 11 12 THE COURT: MR. RAMOS: All right. Your Honor, I believe our co-counsel, Mr.

13 Brent Truitt of the law firm of Hennigan Bennett might be on 14 the telephone. 15 That’s -Yes, Your Honor. This is Brent Truitt

MR. TRUITT:

16 of Hennigan Bennett & Dorman. 17 18 19 20 status. THE COURT: MR. TRUITT: MR. RAMOS: Good morning. Morning. Your Honor, I can give you just a brief There was an The parties

Last week the complaint was filed.

21 application made for temporary restraining order.

22 have been engaged in discussion since then and I think it would 23 be fair to characterize the discussions as positive. 24 Nonetheless, we understand that counsel for Alaska Seaboard 25 would like to have a hearing schedule, if Your Honor’s calendar J&J COURT TRANSCRIBERS, INC.

9 1 permits. And from our perspective, Your Honor, we would ask

2 that any hearing that might be scheduled be scheduled no 3 earlier than next Friday which would be April 27th. We think

4 that that date would accommodate several interests including 5 the parties continuing discussions as well as the travel 6 schedule for our co-counsel who’s located on the west coast. 7 And obviously, also the need to file any responsive pleadings 8 to the application that was filed. 9 And, Your Honor, counsel for Alaska Seaboard is here

10 as well and I’ll defer to him at this time. 11 12 THE COURT: Very well. Good morning, Your Honor. Michael

MR. YURKEWICZ:

13 Yurkewicz from Klehr, Harrison, Harvey, Branzburg & Ellers on 14 behalf of Alaska Seaboard Limited Partners. First of all I’d

15 like to thank the Court for your indulgence of hearing this 16 this morning. And I also like to thank the debtors for their

17 indulgence of -- and cooperation in accommodating us in some of 18 our scheduling issues. 19 With that being said, we’d also characterize the And

20 discussions in this matter towards resolution as positive. 21 we’re optimistic that a resolution can be had in this case.

22 However, we would like to have a hearing date scheduled in case 23 there is -- discussions do not come to fruition. 24 THE COURT: Well, rather than creating a new date on

25 the calendar for this case, is there some reason why we can’t J&J COURT TRANSCRIBERS, INC.

10 1 add it to the April 24th omnibus hearing? 2 MR. YURKEWICZ: We would have -- that would be next

3 Tuesday, Your Honor? 4 to that date. 5 week.

We would have no opposition to adding it

We certainly would not want it to slip past next

The debtors have expressed to us some concern that -But from our perspective, the

6 their ability to meet that date. 7 24th would be fine. 8 9 going on. 10 MR. TRUITT: THE COURT: Okay.

I do understand there’s a lot

Your Honor, this is Brent Truitt.

Is it

11 correct to say that Your Honor is proposing just to put another 12 status conference as opposed to a hearing on the merits for the 13 24th? And the reason I ask is, obviously, we would have to

14 focus on responding to the motion rather than focusing on these 15 efforts to settle at this point. 16 17 18 THE COURT: Well -Your Honor, if I may --

MR. YURKEWICZ: THE COURT:

-- I would be surprised if activities

19 weren’t going on on a parallel track, but I understand that 20 this case has been front loaded and there’s a lot going on. 21 All right. Well, if I schedule it for the 27th, what

22 would the parties propose as a response date? 23 24 the 25th. 25 MR. TRUITT: That’s fine with the debtors. MR. YURKEWICZ: Your Honor, we would propose perhaps

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11 1 2 1:30. 3 THE COURT: All right. We’ll make it April 27th at

Is that time suitable for the hearing? MR. YURKEWICZ: Yes, Your Honor. From our

4 perspective it is. 5 6 MR. TRUITT: THE COURT: Yes, Your Honor. Then the response date will be April 25th And with that,

7 at 4:00 we’ll say.

Prevailing eastern time.

8 the order on the motion to shorten notice has been signed. 9 10 11 12 MR. YURKEWICZ: THE COURT: MR. TRUITT: Thank you, Your Honor.

You’re welcome. Thank you, Your Honor. Your Honor, that’s the only matter I I ask to be excused from the hearing?

MR. YURKEWICZ:

13 have before this Court. 14 15 16 THE COURT:

Very well. Thank you, Your Honor. May I

MR. YURKEWICZ: MR. TRUITT:

Your Honor, this is Brent Truitt.

17 be excused? 18 19 20 THE COURT: MR. TRUITT: MR. RAMOS: You may. Thank you. Thank you very much, Your Honor. Thank you. Suzanne With the I’ll

21 now defer the podium to Ms. Uhland. 22 MS. UHLAND:

Good morning, Your Honor.

23 Uhland of O’Melveny Myers on behalf of New Century.

24 Court’s further indulgence, we’d like to do a little more of 25 rearranging of this morning’s calendar. We would like to take

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12 1 the -- the first matter we would like to take, Your Honor, is 2 the procedures motion with respect to the servicing -- the sale 3 of the servicing aspects. 4 5 THE COURT: MS. UHLAND: Number two on today’s agenda. Number two on today’s agenda. Then,

6 Your Honor, we’re -- pending discussions with the Creditors 7 Committee, at this time we expect to come back at the 8 conclusion of the hearing and request that the Court continue 9 the hearing with respect to the loan origination procedures 10 that the Creditors Committee request. 11 THE COURT: All right. What remains in the way of And the reason

12 objection to loan servicing bidding procedures?

13 I ask is, you know, ten minutes before the hearing today, I was 14 handed a stack of papers which I saw for the first time, both 15 in connection with servicing and origination transactions. And

16 it puts me really at an unacceptable disadvantage when it comes 17 to these things. 18 I’m willing to accommodate the parties’ request for But

19 shortened notice and hearings and you’ve experience that.

20 I’ll do it only under circumstances under which I can come to 21 the bench fully prepared for the matters that are scheduled. 22 And I can’t do that on ten minutes notice. 23 MS. UHLAND: We appreciate that, Your Honor. I

24 believe that the deadline for the loan origination procedures 25 was the matter that should have been -- that had the objection J&J COURT TRANSCRIBERS, INC.

13 1 deadline of yesterday. 2 THE COURT: I was also handed some things in

3 connection with servicing today, too. 4 MS. UHLAND: Right. With respect to the servicing

5 matter, Your Honor, we believe that the lion share of those 6 objections are resolved. There are -- my understanding is the And that we’ve

7 United States Trustee’s objection is resolved.

8 been working to resolve the objection of Citi Group, Deutsche 9 Bank. 10 And we’ve been working -- there may be some remaining

11 issues with the Wells Fargo and C-Bass (phonetic) objections, 12 but we don’t view them as -- they’re procedural matters that we 13 believe we can address with the Court today. 14 And then finally, the objections from General We can address

15 Electric Capital we believe can be deferred.

16 their bidding procedure and that the balance of their objection 17 is a matter for the sale hearing. 18 THE COURT: Well, let me ask this. Am I hearing that

19 if the parties had a little more time now, some of the 20 servicing objections could be resolved? 21 of them could be? 22 MS. UHLAND: Your Honor, I think that we’ve taken -Or some bigger portion

23 we’ve been working, particular the Creditors Committee and 24 Carrington have been working intensely over the last 36 hours, 25 36 to 48 hours, to reach an agreed order and that the balance J&J COURT TRANSCRIBERS, INC.

14 1 of the issues that have not been resolved, we’ve been working 2 to resolve with the parties and we just have some isolated 3 remaining open issues that I don’t believe further discussion 4 will assist. I think we’ll have to -- perhaps after the

5 presentations to the Court of those objections, at that point, 6 we may an opportunity for further discussion. 7 But we’ve been working very hard to resolve all the

8 objections and I think we’re at the point now where we should 9 proceed to see what’s remaining. 10 11 today? 12 MS. UHLAND: Your Honor, what I would propose to do THE COURT: How would the debtors like to proceed

13 is to make an initial presentation on the motion and then 14 actually have the Creditors Committee counsel walk through the 15 blackline changes to the order since he was in large part the 16 author of those changes. 17 Thereafter, to the extent the objectors -- and we

18 believe -- and walked through hell, we’ve address the 19 objections in that order. 20 Thereafter, to the extent there are objections

21 remaining after the presentation of that order, we’d like to 22 have those objectors come forward and then have the debtors 23 have an opportunity to respond. 24 25 THE COURT: MS. UHLAND: All right. Your Honor, this motion that we’re

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15 1 setting forth is for the bid procedures for the proposed sell 2 of our servicing rights and servicing platforms. 3 The debtors loan servicing rights, which are

4 contractual rights, provide them the right to provide the 5 servicing for over 100,000 loans and an unpaid balance of 6 approximately 18 and a half billion dollars. This portfolio of

7 loans includes both first lien loans and second lien loans. 8 These loans are contained in securitization trusts, 12 of which 9 are controlled by the Carrington entities, they are the 10 proposed -- the bidders here. 11 securitization trusts. 12 The servicing platform in addition to these servicing And the balance are in separate

13 rights includes other contractor related to the servicing 14 business, a different real property leases, other equipment and 15 files as well as with respect to the proposal by Carrington, 16 the debtors servicing employees. Carrington has committed to

17 provide opportunities for employment for all the debtors’ 18 employees in the servicing business. 19 The key economic bids -- key economic features of the 50 basis points on the Carrington-related

20 bid are as follows:

21 -- the loans in the securitization pools controlled by 22 Carrington. That’s approximately, as of today, because those

23 principal balances vary as they get paid off, the price will 24 vary, is approximately 42.8 million. 25 With respect to the other, there’s also 50 basis J&J COURT TRANSCRIBERS, INC.

16 1 points on the remaining approximately 10 billion of loans or 2 another approximately 50 million. 3 In addition, as part of the proposal, Carrington is

4 providing purchase price for -- which is effectively refinances 5 our servicing advance line that’s been currently provided by 6 Citi Bank and may be refinanced by our DIP. So they are

7 providing $40 million for advances made a servicer on first 8 lien loans and that’s approximately 90 percent -- or it is 90 9 percent of the 44.4 million outstanding today. And they also

10 are providing 90 percent on any second lien advance amounts 11 which is about 600,000. 12 This results to a net proceeds after the repayment of

13 the amounts financed on the servicing advances of approximately 14 100 and 1.8 million dollars. 15 Other material economic portions of this deal include

16 a provision for a hold-back of the cash purchase price of 10 17 percent related to certain indemnities. And, of course,

18 certain adjustments, in particular with respect to the floating 19 amount of the purchase price based on the principal amounts of 20 the loans, preimposed closing. 21 Because Carrington does not currently have the

22 necessary licenses to provide for servicing, the parties have 23 included in this -- their agreement with Carrington an ability 24 to have Carrington enter into lease transactions with the 25 debtors so that Carrington may operate under the debtors’ J&J COURT TRANSCRIBERS, INC.

17 1 licenses pending Carrington obtaining their own licenses, such 2 as those that are required for the servicing business. 3 There are, as we discussed at our first-day hearing,

4 certain states that require licenses similar to the loan, 5 origination licenses, even for loan servicing. A subset of

6 those that require -- states that require those licenses for 7 loan origination. 8 THE COURT: Excuse me, I’m hearing noise from the Everyone on the phone should have their Go ahead.

9 telephone connection. 10 phone on mute. 11

Thank you.

MS. UHLAND:

The Carrington proposal and agreement

12 that was reached by the debtors and Carrington was the result 13 of a significant pre-petition marketing of these assets by the 14 debtors. The debtors contacted or had serious conversations

15 with eight parties with respect to these servicing assets and 16 received four offers. The Carrington offer was the best offer

17 received by the debtors, providing the highest purchase price 18 and was the only proposal that contemplated no diligence or 19 regulatory approval conditions. 20 Carrington provided the most detailed proposal and

21 was furthest along and most likely to move to a signed 22 agreement in the time frame required by the debtors. 23 Further, the Carrington proposal for these assets

24 indicated that Carrington to acquire the entire servicing 25 platform, not just the master servicing -- the mortgage J&J COURT TRANSCRIBERS, INC.

18 1 servicing rights, relieving the company of potential shut-down 2 liabilities and therefore providing a more beneficial proposal 3 for the debtors’ estates collectively. 4 The Carrington proposal included the provision of

5 certain bid protections as did the other proposals that were 6 obtained or bids that were obtained by the debtors from the 7 four bidders prior to the bankruptcy. 8 The debtors believe the bid perceptions pre-petition Nonetheless, since the entering into the --

9 were reasonable.

10 the debtors entering into this agreement, there have been 11 further modifications to those bid proposals. 12 Briefly, where those bid protections stand now and

13 these procedures can be described in more detail when we walk 14 through the order, is the current proposed break-up fee for 15 Carrington is $2 million, or approximately 1.5 percent, plus an 16 expense reimbursement which is upon some certain termination 17 conditions which is capped at $2 million. The prior -- that’s The prior deal

18 a collective economic decrease, collectively.

19 was 3 percent and a $1.5 million expense reimbursement. 20 The minimum overbid which had been a 10 percent, or The

21 110 percent of the purchase price is reduced as follows.

22 minimum topping bid must equal $5 million if the party is not 23 bidding on the servicing platform. I’m sorry, if the party is

24 bidding on the servicing platform, but it is required to be $10 25 million if a platform shut-down is contemplated by the other J&J COURT TRANSCRIBERS, INC.

19 1 bid. I’m sorry, did I -- okay, well, let me -- to get the

2 record straight, if you can clarify that. 3 MR. POWER: Your Honor, Mark Power from Hahn & Your Honor, I apologize for

4 Hessen, counsel for the Committee.

5 the last minute -- literally at three a.m., we were still going 6 through this and that’s why you got it today. 7 One of the last issues which counsel for the debtor

8 just mentioned was a last minute negotiation that occurred, I 9 guess, very early this morning. 10 line issue is this. There -- basically, the bottom

This Carrington bid provides for an

11 acquisition of the servicing platform including the people in 12 the office, potentially -- you know, a lot of the offices and 13 equipment. Other bidders may be interested in submitting a

14 non-conforming bid, possibly not wanting all the offices, you 15 know, or all the people. So basically we’ve agreed --

16 Carrington requested that we agree to a value of $5 million if 17 you don’t take the servicing platform with the servicing rights 18 that would be served. 19 We have basically not agreed to that and the

20 mechanism currently provides and the bid procedures provide 21 that the debtor has the right to value any bid received based 22 on the increased or decreased liabilities as a result of that 23 non-conforming bid. And we’ll basically advise the bidder

24 whether or not that bid be some minimal bid amount and whether 25 it’s a qualifying bid. And the Committee and Carrington have

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20 1 reserved the right to object to that. 2 So basically, if the debtor says, well, you haven’t

3 assumed these contracts and we think that increases liability 4 by a million, but you hired these additional people and that 5 decreases the number, the debtor will come to a number working 6 with financial advisors, the Committee will work with them, and 7 the bidders will all know exactly how we’re pricing the various 8 bids. And basically, if somebody doesn’t agree, particularly So there is no fixed

9 Carrington, they have a right to object. 10 number as -11 THE COURT:

Well, when you say object, you mean, at

12 the auction? 13 MR. POWER: At the sale hearing, Your Honor. If we

14 go to an auction and basically Carrington doesn’t believe that 15 a bidder has submitted a minimum bid, they reserve the right to 16 come back to Your Honor and say, Your Honor, we think the 17 debtor and the -- it’s Committee -18 THE COURT: Yeah. I’m assuming it’s going to go

19 something like this. 20 bidding -21 22 MR. POWER: THE COURT:

There will be -- assuming there’s

Yes. -- there will be a round of bidding. The

23 bids will be evaluated.

The bidders will be told, usually in

24 writing, how their bids have been evaluated and they may be 25 going to the next round, the next round, next round in similar J&J COURT TRANSCRIBERS, INC.

21 1 fashion. But at some point, the debtor will make a decision

2 and then come to the Court and at the sale hearing, we’ll vent 3 whatever objections there are. 4 5 one thing. MR. POWER: That’s correct, Your Honor. Except for

Carrington is very concerned that -- obviously they

6 don’t want an auction if they think the bid submitted is below 7 the minimum criteria. So the debtor has to make that And they will do that and So thank you.

8 assessment based on the initial bid. 9 parties will have a right to object. 10 MS. UHLAND:

So the more complicated formula is that

11 there’s a $5 million incremental bid subject to the parties 12 reviewing it in the process just outlined to determine whether 13 it is a minimum bid that is -- satisfies the auction 14 requirement. And thereafter, the auction will proceed as the

15 Court just described. 16 17 THE COURT: MS. UHLAND: Very well. Another provision of the revised order

18 which counsel can walk through in detail, I’d like to outline 19 briefly for the Court because it is something that we talked to 20 the Court about before, but not in this context. 21 As the Court may remember from the original -- the

22 initial first-day hearing in this matter, we described the fact 23 that one of the warehouse lenders, Morgan Stanley, had a pledge 24 of certain residual interests of the securitization trust. 25 That pledge or subject -- they’re subject to a repurchase J&J COURT TRANSCRIBERS, INC.

22 1 agreement as -- we won’t get into the UCC nomenclature here, 2 but there are certain interests -- residual interests in the 3 securitization trust that are subject to a master purchase 4 agreement with Morgan Stanley that was entered into in the 5 weeks prior to the bankruptcy filing. 6 Morgan Stanley has publically noticed a proposed

7 foreclosure-type sale of those residual interests which is what 8 their repurchase agreement provides for the disposition of 9 those assets under the repurchase agreement. 10 Those residual interests are the residual interests

11 in a portion of the securitization trust for which we are 12 proposing to sell the master servicing rights in this sale. So

13 there is a, you know, parties that believe and sometimes that 14 it is -- there are transactions where parties transfer 15 servicing rights with the residual interest in the same trust 16 for which you have servicing rights. 17 Therefore, it was the desire to the extent it can be

18 accomplished, to make an effort to coordinate the Morgan 19 Stanley sale with the sale of the servicing rights. 20 Now, the parties are in discussion with Morgan

21 Stanley about having their proposed sale by Morgan Stanley, the 22 proposed auction of Morgan Stanley of those residual interests, 23 having a coordinated effort with the company. It is still a

24 Morgan Stanley sale, but having Morgan Stanley look to the 25 debtors or coordinating that sale with the proposed auction J&J COURT TRANSCRIBERS, INC.

23 1 process with these master servicing rights. 2 So the bidding proposal, the revised bid order and

3 the details can be walked through, provide that if such an 4 agreement can be reached with Morgan Stanley with respect to 5 the sell of those residual interests, we propose a certain -6 that they be coordinated in a certain order for the process of 7 those two sales that affect the debtors and the Creditors 8 Committee’s process, that they’ll be -- will be monitoring or 9 will be managing for the sale of the different servicing 10 assets. 11 And then what we’re proposing is then thereafter, if

12 I’ve got the proposed sequence right, proceeding with the -13 you know, hopefully the sale by Morgan Stanley with the 14 debtors’ input and assistance. 15 THE COURT: Okay. But the proposed form of order

16 would not purport to take it, and I haven’t seen the blackline, 17 would not propose to give the Court’s informate to something 18 over which -- well, which had not been the subject of a motion. 19 20 21 MS. UHLAND: THE COURT: MS. UHLAND: That’s correct, Your Honor. All right. The sole matter in this procedure, in

22 this motion says that if Morgan Stanley reach an agreement and 23 obtain an appropriate court order at a later date, then with 24 respect to -- we’re sort of -- this is really saying what 25 Carrington will agree to with respect to their procedures and J&J COURT TRANSCRIBERS, INC.

24 1 that -- and those procedures with respect to Morgan Stanley. 2 3 THE COURT: All right. Good morning, Your Honor. Gregory

MR. WERKHEISER:

4 Werkheiser, Morris Nichols Arsht & Tunnell LLP on behalf of 5 Morgan Stanley Mortgage Capital, Inc. 6 Your Honor, we’re co-counsel in this matter with

7 Milbank Tweed and I unfortunately couldn’t catch everything 8 that counsel was saying in respect to this matter from the back 9 of the room because of the sound from the forced air. But we

10 have had some preliminary discussions with the debtor and the 11 Committee on this matter and are amenable, at least, to 12 exploring this issue with them of tracking the sales together. 13 We have not specifically agreed to anything in that regard. 14 my knowledge, no one on our side has seen this specific 15 language before today, so I’m not in a position to agree to the 16 specific language that’s in paragraph 18 of the order, 17 blackline version, Your Honor. 18 But to the extent it is clear that what is contained To

19 in there is subject to the sole and absolute discretion of 20 Morgan Stanley, I’m not per se objecting to the order, but I 21 just want the record to absolutely clear that we are simply at 22 the state of having preliminary discussions and that anything 23 that is contained in paragraph 18 is subject to our discussion 24 and our consent. 25 Thank you. That is consistent with the debtors’

MS. UHLAND:

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25 1 understanding. Your Honor, I think it would be helpful to go

2 ahead and have, at this point, counsel for the Creditors 3 Committee walk through the blackline with the Court of the 4 order and thereafter we can determine whether there remain any 5 pending objections to the order that we’re prepared to address. 6 7 8 9 THE COURT: MS. UHLAND: THE COURT: MR. POWER: Okay. Your Honor, may I approach? Yes. Thank you. Again, Mark

Good morning, Your Honor.

10 Power from Hahn Hessen, co-counsel to the Committee in this 11 case. First of all, Your Honor, again, thank you for your

12 indulgence for the rush nature of this. 13 This is, we think, in this case the largest asset The We

14 that currently is for sale and is a significant asset.

15 Committee is very excited about this sale as is the debtor. 16 think this is a terrific business. 17

The Committee agrees with the debtor that this sale

18 process should go forward and we agree with the debtor that it 19 should be done on a relatively expedited basis. However, we

20 are seeking to extend the dates and give bidders a little more 21 time to get up to speed. But within that time frame, we agree

22 with the debtor that this is a sale that should go forward and 23 we are very hopeful that we will have a robust auction. 24 Your Honor, when we last met last week, we adjourned

25 this motion and we have worked very hard with Carrington in J&J COURT TRANSCRIBERS, INC.

26 1 good faith to try to come out to a deal that we think is 2 acceptable to the Committee and resolves a lot of the other 3 objections in the case. 4 And our goal, basically, here is to come to a level

5 playing field, have an auction that we think is fair to 6 everybody who may bid. And we think we have succeeded in that

7 with the debtors assistance and Carrington. 8 As counsel to the debtor indicated, just in

9 economics, the original breakup fee and expense reimbursement 10 which, I personally view as the same component on the expense 11 fee estate was approximately 4.1 percent. We’ve been able to

12 reduce it and that basically would, we think, be about 5.6 13 million for the breakup -- I’m sorry, 4.1 million for the 14 breakup fee and 1.5 for the expenses which totals 5.6. 15 We now have an agreement to reduce that to $4 million And that new

16 and it may be less if the expenses are less.

17 percentage on a gross basis of about 2.8 percent, which we 18 think is right within or even slightly below the appropriate 19 procedures in this Court to approve breakup fee and expense 20 reimbursements. And we are happy to reach that deal and we

21 appreciate Carrington’s cooperation on that. 22 The other big issue I think was raised by -- a

23 concern by the Committee and also some bidders was the topping 24 bid which was basically 110 percent of the gross purchase 25 price, although counsel indicated that some of that is really J&J COURT TRANSCRIBERS, INC.

27 1 to replace some servicer advances which is kind of close to 2 money in our view. 3 Carrington was cooperative on this and we very much

4 appreciate basically coming up with what we think is a very 5 reasonable topping bid which is, in essence, the breakup fee, 6 the expense reimbursement of it’s max and $1 million. So that,

7 in essence, reduces from what could have been and 11 to 14 8 million dollar topping bid down to a basically five million 9 dollar topping bid or roughly 4.5 percent. And we think that

10 was an extremely reasonable compromise that will help the 11 auction process. 12 The bid increments will stay at $500,000, Your Honor,

13 which is consistent with what the debtor and Carrington had 14 agreed. 15 In connection with deadlines, the -- originally the The parties have

16 proposed deadline for bids was April 26th. 17 agreed to move that to May 10th. 18 during the week of April 30th. 19 that to May 16. 20

The auction was originally

The parties have agreed to move

The third component, Your Honor, is really subject to

21 Your Honor’s discretion, but we would ask some flexibility, 22 assuming Your Honor’s calendar can move it. If Carrington is

23 the only bidder and there are no other bids and Carrington has 24 asked that the sale hearing be scheduled for the 18th of May, 25 which I think is a Friday. If there are bids, then we’d ask to

J&J COURT TRANSCRIBERS, INC.

28 1 move it to the first part of the next week, which is May 21 or 2 22, with the notion, Your Honor, that the parties would try to 3 close probably in early June and proceed in that manner. 4 We don’t yet know, but we’re hopeful this auction is

5 a long auction with a lot of value, but we have tried to 6 include enough flexibility so we don’t give Your Honor 7 basically something ten minutes before the hearing and we can 8 basically resolve a lot of the issues if they come up. And we

9 think this schedule works for everybody’s benefit to do that. 10 So subject -- we can do that at the end of the

11 hearing, but, Your Honor, if Your Honor -- those are the time 12 frames that we’re proposing. 13 Your Honor, I will -- there’s a couple other issues.

14 The Morgan Stanley piece, I’ll just basically explain, that the 15 Committee felt that these -- there may be bidders who are 16 interested in buying the residuals which are significant, 17 several hundred million dollars, and also obtain the control 18 over the servicing rights. 19 So we fought very hard, and Carrington understandably

20 was somewhat concerned about basically different bids on 21 different assets, because any bidder was concerned about that, 22 but we fought hard to have the right. If anybody’s interested

23 in buying the residuals and having the ability to buy the 24 servicing rights, that we provide that at the auction, 25 understanding that Morgan Stanley, under it’s repo, had J&J COURT TRANSCRIBERS, INC.

29 1 basically it’s it’s collateral or it basically owns those 2 residual rights and has to agree to the whole procedure. 3 So all we provided, a very simple mechanism, that if

4 we can agree with Morgan Stanley and they agree to share or 5 piggyback on our auction, we can give a lot which permits the 6 sale of those residuals, subject to Morgan Stanley’s approval. 7 And that, at least, gives the bidders the ability to have -- go 8 to the auction knowing they have the ability to get both sets 9 of assets. 10 The one thing that Carrington agreed to which was

11 hard fought, is Carrington agreed that a bidder can condition 12 its bid on the residuals on also being the successful bidder on 13 the servicing assets, on these assets that are currently before 14 Your Honor. 15 So basically, at the end of the auction, we would

16 know if we have one bidder for both or we have basically two 17 different bidders. The Morgan Stanley piece may not even be It may

18 before this Court because it may be a separate sale. 19 also be, if we can work that out with Morgan Stanley. 20 21 THE COURT: MR. POWER: When will I know?

You -- the deadline is April 30th to

22 enter a bid procedures order to sell the Morgan Stanley piece 23 pursuant to what we’re describing to Your Honor. So one of the

24 things that I was going ask is a placeholder so that we can do 25 that. It’s obviously an expedited motion. J&J COURT TRANSCRIBERS, INC.

30 1 We do not believe, given the circumstances, that

2 there should be any objections since Morgan Stanley, in 3 essence, holds these collaterals pursuant to its repo. And

4 under the current Bankruptcy Code provisions, has a lot of 5 rights to exercise. So, we are hopeful that if we can agree to

6 proceed with the debtor and Morgan Stanley, that it should be 7 not a contested hearing. 8 I think.

The -- so Carrington agreed, after a lot of

9 negotiations, to link the two bids provided, however, that in 10 no event shall the debtor or the Committee agree to accept any 11 bid on Carrington’s lot that is less than the maximum price. 12 In other words, the successful bidder, the highest bidder wins. 13 So we have a situation where we try to take a lower bid because 14 we got more on the residuals. 15 concession. 16 In addition, Your Honor, we’ve agreed, late last And we’ve agreed to that

17 night, to -- the order for the bidding, as counsel said, you 18 bid first on the Carrington piece and close that auction so 19 that there’s no further bidding on that piece. And then on the

20 -- then we go to the residuals and we bid second on the 21 residuals. 22 approval. 23 But basically, Your Honor, otherwise these procedures And, again, this is all subject to Morgan Stanley’s

24 do not change the structure that the Carrington piece is going 25 to approve today and Morgan Stanley will go later on. J&J COURT TRANSCRIBERS, INC. So that

31 1 -- you’re not asked to do anything with Morgan Stanley today. 2 Your Honor, I’ve kind of -- and rather than go

3 through the order, I’m just giving you the highlights because I 4 think that’s really what’s appropriate here. There were a

5 number of slight changes, I think to deal with, certain issues. 6 And maybe what I’ll do is turn to those. There’s also two

7 slight issues which the Committee reserves on which I’ll just 8 mention for the record. 9 But we’ll do that at the end. Your

Let me just quickly go through the order.

10 Honor, I guess really the first material change is with respect 11 to Morgan Stanley and on the order, I think it’s paragraph 18. 12 That is the provision that provides for the possibility of 13 adding the Morgan Stanley residuals to the auction on a 14 parallel track. And that’s new language that we really -But Carrington and

15 Morgan Stanley’s counsel just saw today.

16 the Committee and the debtor are okay with those procedures. 17 18 Honor. That’s pretty much the only change to the order, Your In connection with the bid procedures which are

19 attached and were heavily negotiated, I think I’ve mentioned 20 substantially all the terms. There are a number of changes

21 which basically, let’s say, make the Committee’s participation 22 more robust while preserving the debtors’ business judgment 23 with respect to the auction. 24 agreed to that. 25 In terms of qualified bids, Your Honor, there’s J&J COURT TRANSCRIBERS, INC. And I think the parties have

32 1 basically, in paragraph 7, there’s procedures basically where a 2 party becomes a qualified prior to submitting a bid. 3 Carrington and the debtor have reserved -- and the Committee 4 have reserved the ability to basically have their input into 5 that decision. 6 Just going through to see if there’s any sustenance In connection to paragraph

7 so we can streamline this somewhat.

8 9, Your Honor, of the procedures, as I understand it, I wasn’t 9 a part of this negotiations, but obviously the trustee to the 10 servicing agreements in connection with these trusts have 11 independent obligations to make sure the loans are being 12 serviced properly. They want adequate assurance of future

13 performance from any bidder to make sure that bidder is 14 qualified and can perform properly. They have insisted

15 independent in exercise of their fiduciary duties to make sure 16 that those parties are financially qualified. 17 This new provision in paragraph 9 basically says that

18 if you’re a bidder, you have to basically -- you will provide 19 information to the trustee to satisfy that issue prior to 20 coming before Your Honor to approve that party. Obviously, if

21 we can’t agree, Your Honor, we’ll have a hearing and we’ll see 22 what happens. But that’s basically the mechanism to deal with

23 that type of objection. 24 There’s nothing else, I believe, in this procedure

25 that is different than Your Honor sees frequently which is J&J COURT TRANSCRIBERS, INC.

33 1 providing for parties -- reservation of parties rights to 2 object at the sale hearing on terms of assumptions. There is a

3 mechanism that if you don’t, obviously, file an objection to 4 the cure amounts, you’re then deemed to waive it. But

5 otherwise, it’s the standard procedures Your Honor sees in 6 these sales. 7 Paragraph 11, Your Honor, provides the minimum bid The last sentence in

8 requirements that we just discussed.

9 paragraph 11, which is the redline, deals with the issue that 10 we had a colloquy on a little bit earlier which is basically 11 that the debtor has -- the debtor has agreed that it will do 12 what it always does in these situations, is non-conforming bids 13 will be valued. 14 to object to it. 15 And the Committee and Carrington have a right We think that satisfies that criteria.

Your Honor, the -- let me just first just look -- I

16 think in terms of anything else, the procedure is basically, 17 are consistent generally with what the Court -- what was filed 18 with the motion. 19 Your Honor. And those are really the material changes,

I will inform the Court that in addition to the

20 bid procedures, we have also, over the last several days and 21 really last week, negotiated hard with Carrington on the asset 22 purchase agreement to try to clarify -- or they would argue 23 retrade, but basically try to clarify a lot of provisions on 24 the asset purchase. 25 I will inform the Court that they have engaged in J&J COURT TRANSCRIBERS, INC.

34 1 those discussion in good faith and we are confident that we 2 will have an asset purchase agreement that we think is a very 3 good stocking horse agreement to submit for the sale of these 4 assets. 5 6 And I think that will be done today. THE COURT: MR. POWER: I was going to say when. Well, I think there’s a conference call

7 in a half an hour to go through those -- I think a half an 8 hour, 11:30 to go through those changes. It’s a moving target,

9 but I think the parties would say by this afternoon we will 10 have a final agreement. I think the debtor and Carrington are And

11 working on schedules and they’re trying to finalize those. 12 so, some -- later on today, we would like to submit on the 13 certification a final order with an APA and schedules. 14 15 16 THE COURT: MR. POWER: Okay. Let me just check.

MR. KIRIAKOS:

Your Honor, tom Kiriakos, Mayer Brown

17 Rowe and Maw LP on behalf of Carrington Capital Management, LLC 18 and Carrington Mortgage Services, LLC. 19 That is certainly as Mr. Power indicated. That is

20 certainly our -- not only our intent, but something we’ve been 21 insisting on in terms of this process with the APA and 22 certainly with respect to the schedules, has just gone on much 23 too long from our perspective. So yes, we have every intention

24 and every insistence that the APA be done today and the 25 schedules be done and an entire agreement be filed with the J&J COURT TRANSCRIBERS, INC.

35 1 Court. 2 The one caveat of which I’m aware of with respect to

3 that is my understanding is the debtors’ view certain of the 4 material on certain of the schedules to be confidential or 5 proprietary. So in terms of what’s filed with the public, But in terms of once a potential bidder

6 those may be redacted.

7 signs a confidentiality agreement, they would have access to 8 those redacted portions of the schedules. 9 confirm that. 10 11 THE COURT: MR. POWER: Thank you. Your Honor, I’m about to sit down and be But yes, I can

12 quiet, but there are two issues I just want to alert the Court 13 to that the Committee still haven’t resolved just because if we 14 come back before Your Honor, I want to make sure Your Honor’s 15 aware of it. 16 Given the lightening speed in which we’ve been moving

17 in this case, we have been requesting from Carrington 18 financials to make them a qualified bidder. This order That issue is

19 provides that they are financially qualified. 20 just reserved.

We’re going to, after this hearing, sit down

21 with them and go through that issue and hopefully resolve it. 22 We do reserve the right to raise that if we can’t and we’ll 23 inform the Court that we have a problem. We don’t anticipate a

24 problem at all, but we’re -- we need to reserve that issue. 25 THE COURT: Well, for resolution before the entry of

J&J COURT TRANSCRIBERS, INC.

36 1 an order? 2 MR. POWER: Yes, Your Honor. Because this sort of And the

3 provides that Carrington is financially qualified. 4 Committee really thinks that will happen.

We want to make Truthfully,

5 sure, so we’re asking for a little due diligence.

6 we’ve been so busy trying to get the deal done that we just 7 have to turn to that right now. We have set up a mechanism

8 with the Committee to get a sign-off and we will do that today 9 hopefully. 10 The second issue, just to make it clear I think,

11 there were intimations in some of the objections that this may 12 be an inside deal or an inside transaction. The Committee has

13 not seen any indication of that and it’s had assurances from 14 the debtor and from Carrington that’s not the case. We have

15 requested information from Carrington to just confirm that, you 16 know, in disclosure issues if there’s any relatedness. 17 18 faith. That issue is, to us, a sale issue in terms of good We don’t think there will be any problem, but that

19 issue we reserve the right to raise later on at the sale 20 hearing. 21 22 THE COURT: MR. POWER: All right. Subject to those two reservations, Your

23 Honor, the Committee supports this proposal, thinks it’s fair 24 and reasonable. And we will have a, hopefully, a robust

25 auction in a few weeks. J&J COURT TRANSCRIBERS, INC.

37 1 2 THE COURT: All right. Thank you.

MR. KIRIAKOS:

Your Honor, Tom Kiriakos again for

3 Carrington.

If I would just make several points with respect

4 to that the Committee counsel has just gone through. 5 First I need to apologize. Carrington added to that We filed a response

6 stack of paper you have this morning.

7 which, in addition to laying out the resolution as we 8 understood it, and I believe accurately, and addressing the 9 objections to the extent they still remain, also lays out to 10 Mr. Power’s last point, the insider question and the other 11 issues of good faith. And Carrington lays out much more --

12 lays out information regarding Carrington that’s intended to, 13 not only provide that information, but also to clear up any 14 misconceptions or misinformation regarding Carrington that may 15 exist in this case. 16 So, one of the main purposes of what we filed this

17 morning was to do that and it does lay out that this is not an 18 insider deal, and in fact, this is a very honest deal in terms 19 of the negotiations and what’s led to this point. 20 The additional points that I want to make very

21 quickly are that while the Committee may be hopeful that we’ll 22 be under the $2 million expense reimbursement cap, this process 23 has been extremely expensive because of the debtors -- the 24 state of the debtors’ books and records. And our point in

25 agreeing to the entire package, our point specifically with J&J COURT TRANSCRIBERS, INC.

38 1 respect to the expense reimbursement is that we think that 2 we’ll be right at 2 million or over 2 million. 3 very expensive process. It’s been a

So I don’t want to mislead anybody

4 into thinking that we think it’s going to be substantially 5 under 2 million because we don’t. 6 Second, with respect to the shutdown of the platform,

7 Your Honor, as Committee counsel indicated, we think the fact 8 that we are taking the platform and taking the operations and 9 hiring the employees is an inherent value added part of our 10 bid. And conversely, to the extent that someone’s just looking

11 to take the servicing rights and use their own employees, that 12 would, in real economic terms, give the estate less because it 13 would create the administrative expenses relating to the 14 shutdown of the platform. 15 As Committee counsel said, we had hoped that we could We couldn’t

16 agree as to what that inherent added value was.

17 reach that number and, in fact, one of the points that counsel 18 to the Committee made was that it may not be all or nothing in 19 terms of complete shutdown versus the Carrington deal. 20 be a 50 percent shutdown or whatever. 21 So we’ve agreed to the language in the bidding It may

22 procedures that provides that process for taking that into 23 account. It’s a very important part of the process and we

24 consider it to be a very important part of our bid. 25 With respect to the Morgan Stanley procedures, I just J&J COURT TRANSCRIBERS, INC.

39 1 want to make sure this is clear on the record. As we say in

2 our response, we consider this to be a major concession and 3 agreement on Carrington’s part. Among other things, it not

4 only takes our time frame out from what we originally 5 negotiated for and extends the time frame, but it also 6 complicates what we’re trying to do by definition in terms of 7 adding another very large moving part. 8 As Committee counsel indicated, we got to an But just so there’s no confusion, one, our

9 agreement on that.

10 agreement and these bidding procedures are not dependent 11 whatsoever on the debtor and/or the Committee being able to 12 reach an agreement with Morgan Stanley. I mean, they become

13 operative if they do, but if they don’t, the rest of the 14 bidding procedures are still enforceable. 15 Second, our willingness to do this is dependent upon

16 the conditions -- the other conditions laid out in paragraph 17 18, one of those being that the servicing platform auction, if 18 one, in fact -- if there is, in fact, a topping bid for our 19 assets and we go to auction which is an important point. 20 there’s no topping bid, we don’t go to auction. If

We come to you

21 and seek approval -- the debtor comes see you and seeks 22 approval of our deal. But if there is the auction, the auction I mean, that is a

23 for the servicing platform has to go first.

24 material part of our agreement to agree to this. 25 And so, while the order is clear that Morgan Stanley J&J COURT TRANSCRIBERS, INC.

40 1 has complete discretion over whether it agrees to anything with 2 the debtors and in connection with that agreement, has complete 3 discretion over it’s own auction procedures or whatever, it 4 doesn’t have the right to reorder the order of the auction or 5 change the other terms that relate to Carrington. I just want

6 to make sure the record is crystal clear about that. 7 THE COURT: Well, the important thing is that the

8 order is crystal clear. 9 MR. KIRIAKOS: Yes, the order is crystal clear on

10 that, Your Honor. 11 12 THE COURT: All right. Committee counsel is right, the

MR. KIRIAKOS:

13 addition to, I believe, paragraph 9 of the bidding procedures 14 is intended to resolve Duetsche Bank’s objection. And my

15 understanding is the language is what I negotiated yesterday 16 with Duetsche’s counsel and does resolve the balance of their 17 objection. 18 And finally, Your Honor, we -- as Committee counsel

19 said, we have a structure in place to give the Committee the 20 requisite financial information that they’re asking for so 21 there’s no question about our status as a qualified bidder. 22 But that issue, of course, needs to be resolved before the 23 order is entered. 24 Thank you very much, Your Honor. You’re welcome. All right. Let me

THE COURT:

25 canvass those who filed objections and ask where they stand J&J COURT TRANSCRIBERS, INC.

41 1 with them based on what’s been described to the Court so far. 2 MR. MCMAHON: Your Honor, good morning. Joseph

3 McMahon for the United States Trustee. 4 followup, Your Honor.

A few points of

With respect to the objection which we

5 had filed to the bidding procedures, there’s a few more items 6 that have not been described by counsel to the debtors or to 7 Carrington that we’d like to make part of the record. 8 First, our objection referred to the Consumer Privacy And to be clear

9 issue which we broached at the last hearing.

10 about this, Your Honor, servicing rights are being transferred 11 pursuant to this sale. It has been represented to me and

12 consistent with the language in the asset purchase agreement 13 itself, actual interest in mortgage loans are not being 14 transferred. So we have the initial question here, Your Honor,

15 under 363(b)(1) whether personally identifiable information is 16 actually being sold. 17 But just so that the record is clear on this point,

18 Your Honor, we went through the privacy policy at the last 19 hearing under the Greenwich sale. That policy provides that --

20 and is communicated by New Century to the persons who it 21 engages in mortgage origination transactions with, that it does 22 not provide personally identifiable information about you to 23 third parties other than its lending parties unless it has the 24 consent of those parties or the disclosure is permitted or 25 required by law. J&J COURT TRANSCRIBERS, INC.

42 1 And, Your Honor, the relevant section of the Gramm-

2 Leach-Biley Act, which indicated that the Greenwich sale was 3 authorized by law, also references sales of servicing rights on 4 the secondary market. So we have satisfied ourselves, Your

5 Honor, that this particular transfer would actually be 6 consistent with the privacy policy to the extent that you could 7 -- the point would be that personally identifiable information 8 was being transferred. 9 And just so that the record is complete on that

10 point, Your Honor, I would like to make a copy of the privacy 11 policy a part of the record if we may do so as Exhibit U.S. 12 Trustee 1. 13 14 15 THE COURT: MS. UHLAND: THE COURT: Very well. Is there any objection?

No, Your Honor. All right. We’ll mark it UST-1 which is

16 admitted without objection. 17 MR. MCMAHON: Thank you, Your Honor. Consistent with

18 Your Honor’s ruling with respect to the 363(o) language, it 19 will be included in the sale order. I don’t believe that the

20 debtors and Carrington have any objection on that point. 21 And the third point, with respect to the expense

22 reimbursement that has been referenced, Carrington has agreed 23 to provide our offices -- office with the invoices for review. 24 And with those three points, Your Honor, we are -- the revised 25 terms that have been represented to you on the record do J&J COURT TRANSCRIBERS, INC.

43 1 resolve the remaining points of our objection. 2 3 THE COURT: Very well, thank you. Good morning, Your Honor. Mark Hurford Thank you.

MR. HURFORD:

4 of Campbell Levine on behalf of Citi Group Global Markets 5 Realty Corporation. 6 I recognize Your Honor wasn’t -- well, received these

7 filings late, in particular the filing that responds to 8 Carrington Capital Management, but from our point of view, it 9 was appreciated that it was filed. And at the very end of that

10 filing, there’s a heading that reference Citi Group and 11 confirms that the debtors and Carrington have resolved the 12 limited objection filed by Citi Group. 13 There’s a short paragraph there that’s kind of a high

14 level summary of the resolution, but with that resolution, 15 which was actually confirmed in email with specific language 16 that will be added to the asset purchase agreement, our limited 17 objection is resolved. Obviously, the only outstanding issue

18 is that we need to see the actual finalized asset purchase 19 agreement. But we don’t have any concerns that the language we So

20 agreed to will make it into that asset purchase agreement. 21 with that, our objection is resolved. 22 23 24 THE COURT: Thank you. Thank you. Good morning, Your Honor.

MR. HURFORD:

MR. BUSENKELL:

Michael

25 Busenkell of Eckert Seamans here on behalf of C-Bass and Wells J&J COURT TRANSCRIBERS, INC.

44 1 Fargo. With me in the courtroom today is Mr. J.R. Smith from

2 the Hunton & Williams firm. 3 We did file pro hoc papers. It’s my understanding

4 that those have been signed.

It doesn’t appear that they have

5 been docketed yet and in an abundance of caution, I’d ask that 6 he’d be permitted to appear on a pro hoc basis. He’s admitted

7 in good standing in the courts of the Commonwealth of Virginia. 8 And with the Court’s permission, I’d ask that he be permitted 9 to appear on a pro hoc basis. 10 11 THE COURT: MR. SMITH: Very well. Good morning, Your Honor. J.R. Smith

12 from Hunton Williams here on behalf, first, of Wells Fargo 13 Bank. I would note for Your Honor that Mr. Bill Fay (phonetic)

14 from Wells Fargo Bank is here with me in the courtroom this 15 morning. 16 Wells Fargo Bank is the trustee for five of the

17 securitization trusts for which the debtor serve as servicer, 18 the servicing rights are among the assets the debtor is 19 proposing ultimately to sell. 20 Wells Fargo Bank has a fiduciary duty, Your Honor, to

21 insure that, among other things, that the servicer is a 22 qualified servicer as that qualifications are spelled out in 23 the pooling and servicing agreements that created the trust and 24 essentially control the way that it’s managed. 25 Wells Fargo’s objection stems largely from the fact J&J COURT TRANSCRIBERS, INC.

45 1 that the propose stocking horse bidder, in Wells Fargo’s 2 belief, is not currently a qualified servicer under those 3 pooling and servicing agreements. And from the fact that the

4 initially proposed bid protections afforded that stocking horse 5 bidder all but insured, in Wells Fargos belief, that the 6 stocking horse bidder had a significant advantage, given the 7 good faith negotiations between the Committee, Carrington, the 8 debtors and Wells Fargo Bank. 9 At this point, Wells Fargo Bank would like to

10 withdraw its objection without prejudice, reserving expressly 11 the right to object at the sale hearing including items as to 12 whether the proposed winning bidder is a qualified servicer 13 under the relevant pooling and servicing agreements and whether 14 that entity can provide adequate assurance to future 15 protection. 16 17 18 19 THE COURT: MR. SMITH: THE COURT: MR. SMITH: Very well. Thank you, Your Honor. What about C-Bass? In respect to C-Bass, Your Honor, C-Bass

20 is also withdrawing its objection given the good faith 21 negotiations that have occurred. It would only note, Your

22 Honor, that in connection with the asset purchase agreement 23 that has been proposed, the post-stocking horse bidders are 24 required to undertake an audit that would look at three things. 25 First, it would look at the whole loan balances, essentially, J&J COURT TRANSCRIBERS, INC.

46 1 on the loans that will essentially fix the portion of the 2 purchase price. It will look at the advance facility that has It also will look at the

3 been put in place by Citi Group.

4 actual advances that have been made by the servicer which 5 ultimately also will form, on a percentage basis, a portion of 6 the purchase price. 7 The results of that audit ultimately will not become

8 available, it’s our understanding, until after bids have been 9 submitted. That creates a little bit of a problem for Additional, presumably, a part of the

10 potential bidders.

11 expense reimbursement that Carrington would be entitled to as a 12 stocking horse bidder stems from the cost of undertaking such 13 an audit. 14 C-Bass merely would request that, if possible, that

15 audit be taken in a timely fashion and provide -- the results 16 provided to bidders. If that is not possible, at a minimum,

17 that audit result should be provided to the ultimate winning 18 bidder, whether that’s Carrington or a third party. 19 Your Honor. 20 MR. KIRIAKOS: Your Honor, Tom Kiriakos on behalf of Thank you,

21 Carrington again.

I won’t get into the C-Bass point on the But with respect

22 audit at this point unless you’d like me to.

23 to Wells Fargo, I would like him -- a clarification. 24 My understanding of Wells Fargo’s reservation of its

25 objection goes to the issues of whether, under the pooling and J&J COURT TRANSCRIBERS, INC.

47 1 servicing agreements, we will be able to be a successor 2 servicer. And our view of those issues is that they are sale

3 hearing issues and based on my understanding of what Wells 4 Fargo’s counsel has just said, that is their view also and we 5 don’t have a problem with that. They can, in connection with

6 the sale hearing, they can -- we think that long before that we 7 will -- we think we frankly have given them enough now to be 8 satisfied that we’ll get there by the sale hearing. But we

9 certainly believe by the sale hearing we will have satisfied 10 them on that point. But that’s a sale hearing issue. We

11 understand they’re reserving that. 12 13 reserving. But my understanding is that’s the only thing they’re They’re not reserving the right at the sale hearing

14 to come forward and suddenly raise that -- issues as to the 15 procedures of the bidding process in terms of the amount of the 16 breakup fee or the auction procedure that we’ve laid out. 17 mean, I would like clarification on that. 18 THE COURT: Well, I don’t need clarification on that So I

19 because the objection’s been withdrawn. 20 21 MR. KIRIAKOS: THE COURT: Okay.

And I would certainly hope that once the

22 order’s entered, unless there’s some irregularity for some 23 reason, but I wouldn’t have such objections. 24 25 MR. KIRIAKOS: THE COURT: Thank you, Your Honor.

So, sorry to answer for you, but --

J&J COURT TRANSCRIBERS, INC.

48 1 2 3 think. 4 MR. SMITH: Actually, Your Honor did a very good job MR. KIRIAKOS: THE COURT: Thank you.

We’re only going to do this once, I

5 answering for me. 6 7

Thank you. Thank you. Good morning, Your Honor. Mike

THE COURT:

MR. GALLERIZZO:

8 Gallerizzo on behalf of General Electric Capital Corporation. 9 General Electric has filed an objection to the

10 bidding procedures motion premised upon five grounds which fall 11 under four categories. The first deals with the breadth of the

12 motion and it may have just been a scribbler’s error, but when 13 reading the motion in its entirety, the caption, for example, 14 asked for an approval of an order approving the sale itself. 15 16 THE COURT: Yes. Move to the next one. Yeah, the next one, okay. In

MR. GALLERIZZO:

17 addition, there were -- the second objection is premised upon 18 the lack of some information. There’s no specificity in

19 regards to the specific assets that are going to be sold, the 20 least assets that are going to be assumed and assigned. Given

21 the fact that we’re moving so quickly, at a minimum, Your 22 Honor, there’s no specific time frame within which at least the 23 list of the assets is going to be provided. I’ve had We had

24 discussions with Mr. Ramos, counsel for the debtor.

25 hoped that a list would have been provided before today’s J&J COURT TRANSCRIBERS, INC.

49 1 hearing. That is not the case. The same holds true with

2 respect to the list of least assets that would be assumed and 3 assigned. 4 At a minimum we would ask Your Honor require that

5 those lists be provided within a reasonable time frame, maybe 6 ten days after this hearing, so that secured creditors such as 7 GE, at least creditors such as GE have plenty of time to review 8 those lists. Some of those lists are massive, Your Honor.

9 They’re very extensive and involve thousands of pieces of 10 equipment. 11 In addition, our objection was premised upon the fact

12 that there was no allocation contemplated, at least for the 13 moment, in the particular APA that was filed. There was Once again,

14 reference in the APA to an allocation schedule.

15 like the list of assets that are being sold and the list of 16 assets that are to be assumed and assigned, you will find that 17 that list is also missing. 18 There’s some additional language in the APA that says

19 that that allocation list must be mutually agreeable between 20 the parties and that mutual agreement must occur within 120 21 days after closing which is vague and ambiguous. I think this

22 debtor should be required to provide that allocation list 23 substantially prior to the hearing on the sale so that, once 24 again, creditors, such as GE, can make a determination as to 25 whether what’s being allocated to their particular assets is J&J COURT TRANSCRIBERS, INC.

50 1 fair and reasonable. 2 3 one. THE COURT: Last -Well, let me -- you know, that’s a tough

I mean, I don’t know what the debtor’s prepared to say or

4 not say at this point, but, you know, there’s allocation for 5 different purposes obviously. And the buyer and the seller,

6 the ultimate buyer and seller, are largely concerned, I’m 7 assuming, in tax allocation. At this point, you’re more And I -- I guess my

8 concerned about value, I understand.

9 thought is it might or might not be an issue at the sale 10 hearing. 11 Then, of course, identifying values prior to the

12 auction might not, from a strategic standpoint, be in the 13 estate’s best interest. But I just mentioned that and we’ll

14 hear what the debtor has to say in response, but that’s a -- I 15 think that’s tougher than requiring, you know, lists of assets. 16 MR. GALLERIZZO: And I appreciate Your Honor’s

17 comments and with sales that move this quickly, they are tough 18 issues. They’re very, very tough issues. But my client’s left

19 in the dark in regards to what’s going to happen and the -- I 20 guess the problem with not making that decision early on is it 21 becomes fraught with problems down the road because then there 22 needs to be a determination as to what, you know, the 23 allocation is, how that’s going to be determined, you know, in 24 terms of value. The assets are already gone. You know,

25 they’ve already been conveyed to a third party. J&J COURT TRANSCRIBERS, INC.

51 1 I’ve been through this, done this before and it’s a And it just -- it brings

2 problem not doing it a head of time. 3 about a lot of litigation.

I’m trying to avoid that and maybe

4 through discussions with the debtor we can do that without 5 impeding the estate’s ability to maximize value. 6 7 that out. 8 MR. GALLERIZZO: The last point we raise is the fact THE COURT: You’ll have some time, perhaps, to work

9 that the way the credit bidding has been established pursuant 10 to the bidding procedures order or as is proposed in the 11 bidding procedures order effectively negates GE’s right to 12 credit bid it’s specific assets. In this particular case, GE

13 has two leases of telephone systems and we have a number of 14 loans that are secured by thousands of computers. Under the

15 lease, leases, we are approximately owed about a million and a 16 half dollars whereas under the loans, we are approximately owed 17 somewhere in the vicinity of seven and a half million dollars. 18 We have no idea what portion of those loans, what

19 portion of those leases relate to the sale because we don’t 20 have a list of what’s being sold and what’s being assumed and 21 assigned. But if we just take it in the abstract and presume

22 that half of the assets belong to this sale and half belong to 23 the loan origination sale, there’s no -- by allowing a credit 24 -- by allowing bidding in the fashion that the debtors’ 25 proposed, there’s no way for GE, for example, to bid its three J&J COURT TRANSCRIBERS, INC.

52 1 and a half million dollars or $3.75 million owed to it on its 2 assets at the sale because the sale contemplates the next bid 3 being a $5 million topping bid over $139 million. 4 As I read 363(k), and I think as the commentators

5 read 363(k), it’s specifically requires credit -- or allows 6 credit bidding as to specific assets that a creditor has. The

7 Third Circuit in Submicron recognized that a creditor such as 8 GE has the right to bid the full amount of its claim 9 irrespective of what the value of its asset is. And this

10 particular procedure that they’ve created effectively negates 11 our credit bid rights. There has been no testimony, no proof

12 that cause justifies doing that. 13 And I suggest, Your Honor, that it doesn’t because GE

14 could be left with its credit bid rights and this particular 15 purchaser could top our credit bid rights if they’d like to. 16 And they could overall bid for the sale and the debtor could 17 determine that that was the best bid. But by doing so, they

18 would effectively preserve our credit bid rights and have the 19 right to set the value of those assets at that point in time, 20 if we decided to go forward with credit bidding. 21 So, we ask -- I think that is a bidding procedures

22 question of serious issue and -23 THE COURT: And the debtor would agree with you. And

24 of course the argument in opposition to that is, but look, all 25 of what you say may be true. My words are not their’s

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53 1 necessarily. But there’s nothing in the Code which requires us

2 to style -- to structure our bidding process and sale process 3 to benefit you. 4 5 MR. GALLERIZZO: THE COURT: But how do you get around --

The sale process is designed to maximize And the debtors’ suggesting here, as are

6 value for the estate.

7 others, that this framework is best suited to maximizing value 8 for the estate. 9 MR. GALLERIZZO: But when you juxtapose 363, the sale

10 be in 363(k), 363(k), the language, the Legislature drafted it, 11 contemplates a single asset creditor having the right to bid. 12 It -- you know, it contemplates that. 13 THE COURT: It certainly does. But it doesn’t say,

14 as is being argued, that that must -- well, that that must 15 dictate how every sale is to be structured. I mean, it’s kind

16 of like, my words, not the objectors, the tail wagging the dog. 17 Especially in a sale of this magnitude. 18 MR. GALLERIZZO: But it’s the only way to protect a And I think the Legislature, in

19 single asset secured creditor. 20 its wisdom, indicated such.

Now, if they can show a chilling

21 effect on the sale, I think maybe they would be able to show 22 cause. But I don’t believe a small creditor such as my client

23 against 150 or 140 million dollar sale, that that is going to 24 chill this sale. 25 THE COURT: I understand your argument.

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54 1 MR. GALLERIZZO: So, based upon these -- what we’re

2 asking for, Your Honor, as to the informational requests, we’re 3 just asking a time frame be set, a reasonable time frame to 4 provide the lists that are lacking. 5 allocation lists. And we’d also ask for the

And on the credit bidding, that we be

6 permitted to credit bid to the extent of our debt against our 7 specific assets that we have liens against. 8 9 10 THE COURT: Very well. Thank you very much. Are

MR. GALLERIZZO: THE COURT:

Let me just ask for the record.

11 there any other objectors or parties who wish to be heard in 12 connection with the proposed bidding procedures? 13 MR. DREBSKY: Good morning, Your Honor. Dennis

14 Drebsky from Nixon Peabody on behalf of Georgia Bank National 15 Trust Company. 16 motion. I could brief vis-a-vis the bidding procedures

Our concerns have been addressed, of course, vis-a-vis We reserve all our rights. But we have resolved our

17 the sale. 18 objection. 19

THE COURT:

Very well, thank you.

Anyone else?

I

20 hear no response.

All right.

Would you indulge me for a five-

21 minute recess at this point? 22 23 24 minutes. 25 (Recess) J&J COURT TRANSCRIBERS, INC. MS. UHLAND: THE COURT: Certainly, Your Honor. All right. Thank you. Just five

55 1 MS. UHLAND: Your Honor, shall I proceed to address

2 the GECC objections? 3 4 THE COURT: MS. UHLAND: If you please. Your Honor, there’s three objections

5 sort of remaining of the Court’s dialogue that we’d like to 6 address. The first one is a request that the schedules, I

7 heard, that the schedule of assets be filed within ten days. 8 And that’s acceptable to us. 9 10 THE COURT: MS. UHLAND: All right. We’ll make that representation. We, in

11 fact, hope to file those later today as we indicated. 12 With respect to the allocation issue and the debtor’s

13 allocation issue between the debtors and Carrington, that is a 14 document that’s going to have several purposes between the 15 debtors and Carrington and their tax allocations and other 16 matters. 17 We are not proposing by that allocation to value,

18 under 506, the claims of the secured creditor GE with respect 19 to their secured loans. And further, our proposed sale

20 provides that their liens, whatever they are to the extent of 21 their value and validity will attach to the proceeds. So we

22 believe that they -- providing an allocation in advance of when 23 it’s required by the APA is unnecessary and further, that they 24 are not prejudice by the failure to receive it ahead of time. 25 THE COURT: No, I would -- and I wouldn’t consider

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56 1 them bound by your agreement. 2 MS. UHLAND: And nor are they bound by our agreement.

3 We would agree with that, Your Honor. 4 5 THE COURT: MS. UHLAND: All right. And finally, with respect to the 363(k) Your Honor, we believe

6 matter and their rights to credit bid.

7 that there certainly is cause, at least cause to the extent 363 8 could be construed in anyway to rewrite a court’s bid 9 procedures that provided the lot on which bids were going to be 10 accepted. 11 rights. 12 We do not believe 363(k) dictates that in every case There would be cause to limit those credit bid

13 where there’s an individual secured creditor, that that 14 creditor is allowed to rewrite the parties in an agreed -- in a 15 court’s ordered bid procedures to provide for a going concern 16 sale. 17 We’re proposing that the bidding be on, you know, the

18 assets that are the subject, the purchased assets of the 19 Carrington sale and it would certainly damage the debtors and 20 the bid process if the proposed buyers believed that they could 21 end up with a business as a going concern that didn’t have a 22 phone system or many of its computers. So we believe there is

23 cause to the extent 363(k) could be viewed as some kind of over 24 item bid procedures which we don’t believe it is. 25 Further, Your Honor, we are not limiting their rights J&J COURT TRANSCRIBERS, INC.

57 1 to credit bid. To the extent GECC desires to bid on the bids -

2 - on the global assets that we’re setting forth, we do agree 3 that they have credit bid rights. If they want to become a

4 proposed bidder, we may need to work with them and with the 5 Committee to allocate the loan -- the loans on the different 6 assets to clarify which portion of their secured bids -- their 7 secured loans apply to the assets that we’re actually selling 8 in the servicing business because they knew -- maybe some of 9 the computers that we’re not trying to sell as part of this. 10 But we would engage in those discussions to allocate

11 that portion of their loans so they could credit bid in good 12 faith. But they’re -- that -- and they could credit bid a

13 portion of their proposal and we’re not proposing that they be 14 estopped from raising that. 15 THE COURT: And I think that’s all, it seems to me, So --

16 they’re asking for really. 17 18 MS. UHLAND: THE COURT:

That --- where’s really the point of

19 disagreement? 20 MS. UHLAND: To the extent that is what they’re

21 asking for, we don’t disagree, Your Honor. 22 23 THE COURT: Okay. No, Your Honor. What I was

MR. GALLERIZZO:

24 suggesting was that be left with our credit bid rights on our 25 specific assets separately. That we not be required to bid on

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58 1 the entire gambit of assets because by doing that, that 2 effectively negates our credit bid rights. 3 THE COURT: I’m sorry, I don’t -- I didn’t hear from

4 the debtor that’s what -- I thought the debtor was suggesting 5 -- maybe I’m just misunderstanding. 6 MR. GALLERIZZO: I think what she’s suggested, and if

7 I may paraphrase, is that we would have to make a bid on the 8 entire assets of, I think the number would be 144 million. Of

9 that 144, let’s say we were owed three and a half million on 10 the phone and the computer assets. That would -- we would be

11 able to credit bid that portion and then would have to pay cash 12 for the remaining amounts. 13 14 were you? 15 16 that. 17 THE COURT: And why in the world would you think that MS. UHLAND: Your Honor, actually I was suggesting THE COURT: Ms. Uhland, you weren’t suggesting that,

18 would be an appropriate resolution of this objection? 19 MS. UHLAND: Your Honor, they are preserving their

20 credit bid rights.

We have a bid procedure that provides for

21 the incremental first overbid of 144 or, you know, however it’s 22 calculated. And were any -- and in order to be a qualified

23 bid, you have to provide a minimum overbid on substantially -24 on the assets that are for sale. Not an overbid to be a

25 qualified bid to put us to auction on subset of the assets that J&J COURT TRANSCRIBERS, INC.

59 1 are being -- that we’re proposing to sell. 2 So the issue isn’t whether there’s a portion of debt It is, you know, that we’re not

3 that can be credit bid.

4 willing to rewrite our bid procedures to parse out the separate 5 assets that the debtors are proposing to sell as part of the 6 auction. 7 THE COURT: But it seems to me, and you’ve already

8 agreed, to identify those assets which are to be -- proposed to 9 be sold, okay. So it seems to me that, at least from a

10 practical standpoint, GECC could make a bid individually on its 11 assets. And I guess my question is, what would be the harm in

12 permitting that? 13 MS. UHLAND: Your Honor, we would permit that and

14 then we could, of course, consider that and they could make the 15 bid and we would consider it the way that the debtors and the 16 Committee are considering it in determining whether that would 17 be a bid that we would consider sufficient to go forward with 18 the auction or consider as part of the auction process. 19 MR. POWER: Your Honor, no, the Committee does not GE

20 agree with that and the harm is very specific, Your Honor.

21 -- there are no -- Your Honor has not approved procedures for 22 the sale of those assets separately. There is no notice.

23 There is no ability for other parties to bid on those assets. 24 So GECC is proposing to the Court that we set the floor, and we 25 unilaterally got to pick the value, the fair market value of J&J COURT TRANSCRIBERS, INC.

60 1 those assets, so we come later to this Court and argue what the 2 value of its collateral is, they say we bad and that sets the 3 price. 4 Your Honor, what we are saying to the Court is simply GECC is adequately protected in this They can

5 overrule the objection. 6 situation.

The sale proceeds will be escrowed.

7 reserve their rights and they will reserve -- they’ll have lien 8 on those sale proceeds to the extent we sell their collateral. 9 Later on, after the sale, we will have a hearing, if we can’t 10 resolve it, as to what the fair market value of that collateral 11 is. GECC can come before your court and say, Your Honor, I

12 would have bid $5 million for that stuff and we’ll say, Your 13 Honor, the stuff is worth 3 million and we’ll resolve it. 14 THE COURT: Well, the other thing they might say is We have users

15 that, you know what, we do this all the time.

16 for that stuff that in the end is going to provide much more 17 economic benefit than that value which the Court or you or 18 anybody ascribes to it. Now, I don’t mean to put words in your

19 mouth, but it strikes me that’s a possibility. 20 MR. POWER: Your Honor, we don’t disagree with that.

21 And I think -22 THE COURT: And it seems to me that might be one of

23 the reasons that bidding, credit bidding, is generally 24 permitted. 25 MR. POWER: Your Honor, no. I would submit to you

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61 1 that that is the reason why GECC will take the view that the 2 value of the collateral is worth more. And they can

3 demonstrate and they have not -- we’re not asking for waiver of 4 any right -- to convince this Court that, in fact, those assets 5 are worth more. But the notion that they can basically set up

6 a bid separately to basically somehow prejudice the estate in 7 creating kind of a somewhat false premise. 8 9 THE COURT: MR. POWER: Well -I mean, those assets aren’t permitted. Anybody who’s interested in those

10 We’re not noticing those.

11 assets doesn’t have the ability -- the auction’s not set up 12 that way. 13 right. And all we’re saying, Your Honor, they have that

If they think the assets are worth more because they They reserve

14 have a unique buyer, we’re not prejudicing that. 15 all rights to argue valuation at a later date.

And they’re not

16 -- they’re adequately protected because the money is sitting 17 there to protect them in the full amount of their claim. 18 So we would ask that the procedures not be modified.

19 And then -- and Your Honor, quite frankly, when you think about 20 it, it really wouldn’t work. I mean, quite frankly, from

21 Carrington’s perspective, they’re buying a whole business and 22 all the equipment. GE’s bid is obviously the high one. No one

23 else is bidding on that piece, but we have 150-40 some million 24 dollar bid that’s going to win. It’s somewhat of a -- to me And I don’t

25 anyway, it doesn’t work in this auction procedure. J&J COURT TRANSCRIBERS, INC.

62 1 -- GE is protected. 2 worth more. 3 4 They can simply argue those assets are

And if we can’t resolve it, we’ll litigate it. Thank you. Your Honor, Tom Kiriakos again for

THE COURT:

MR. KIRIAKOS:

5 Carrington.

One of the major process of the Bankruptcy Code is And if 363(k) worked the

6 to maximize the value of the estate.

7 way that counsel’s suggesting, it would really undermine the 8 ability ever to have a going concern sale and attain going 9 concern value for a business as a business because various 10 individual secured creditors could unilaterally take their 11 assets and go home, destroying the overall -- the going concern 12 value of the overall whole. And Congress, in fact, addressed And that is

13 and limited 363(k) offset rights for cause shown. 14 cause shown. 15

Clearly the whole supposition of this sale is that

16 the whole is worth more to the estate and worth more to any 17 potential purchaser than a sum of its parts. 18 statutory argument. 19 In addition, Your Honor, the deal in front of you in So that is the

20 terms of what you’re being asked to approve with respect to the 21 bidding procedures is for all of these assets. Carrington has

22 not agreed and it’s clear that it hasn’t agreed, that the 23 debtor could stand up at the auction and say, while 24 Carrington’s agreement is for all these assets, we are now 25 going to offer individual lots for the servicing rights with J&J COURT TRANSCRIBERS, INC.

63 1 respect to the Carrington securitization separately and then 2 we’re going to offer the servicing rights with respect to the 3 Carrington trust separately. 4 5 agreement. I mean, that -- the debtor can’t do it under the It’s not what we bargained for. It’s not what

6 we’re asking you to approve. 7 variant of that.

And so this would just be another

And as debtors’ counsel pointed out, it’s

8 hard to run the servicing business without phones and 9 computers. So it really would have the effect and the

10 potential, not only in this -- not only with respect to this 11 sale, but all going concern sales of taking it off the table. 12 THE COURT: Well, although, in today’s world, phones I mean, I haven’t heard

13 and computers, pretty easy to replace.

14 anything that tells me there’s anything unique about this 15 collateral. 16 MR. KIRIAKOS: Well, but they’re pretty easy to

17 replace, but what does that do to -- as we now bidding -- do we 18 have to know pay less than we’re paying because we have to do 19 -- is it just an allocation of the purchase price we’re paying? 20 Or is it something else? I mean, it clearly can’t result in

21 our incurring more expense than what we’re bargained to incur. 22 THE COURT: I understand. All right. Before we go

23 back to those I’ve heard from, let me ask if anyone else cares 24 to be heard on this issue. 25 MR. CHAPMAN: Good morning, Your Honor. For the

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64 1 record William Chapman, Edwards Angell Palmer and Dodge and I 2 rise merely -- we represent -- merely to get some guidance from 3 Your Honor. 4 We represent GMAC Commercial Finance, LLC,

5 Countrywide Home Loans, Inc., Countrywide Financial Corp., 6 Countrywide Warehouse Lending, Countrywide Bank and Countrywide 7 Securities Corporation. I’ll collectively refer those to those

8 creditors as Countrywide. 9 10 motion. Your Honor, we did not object to this particular We did object, however, to the loan origination And we raised almost identical issues that

11 platform motion.

12 were raised by GECC. 13 I just want to make sure that my silence on this

14 motion will not preclude my arguing the same issues -15 16 17 18 THE COURT: Well, you are a careful guy, counsel. -- on the next motion, Your Honor.

MR. CHAPMAN: THE COURT:

I wouldn’t worry about it. And we do support GECC’s position here,

MR. CHAPMAN:

19 Your Honor.

And how this is normally dealt with, and Your

20 Honor’s seen this numerous times, is you allow parties to come 21 in and if they want to bid on a portion, they do. And then if

22 there’s an aggregate bid greater than the bid for the entire 23 organization, the debtor can consider it. 24 have to consider it. The debtor doesn’t

But it should allow for the ability for

25 secured creditors to credit bid under 363(k). J&J COURT TRANSCRIBERS, INC.

65 1 THE COURT: Well, I see you’ve drawn me into the next Then what? I mean,

2 question, so.

Let’s say I permit it.

3 hasn’t the buyer bought the excess?

Unless I make some

4 determination that in the context of the overall larger bid, 5 that bid is greater than the credit bid. And then, see, then

6 you’re opening yet another door of perhaps, you know, some 7 problems. 8 MR. CHAPMAN: I don’t think that that’s how it The debtors always, with the

9 normally happens, Your Honor.

10 Committee, have the right to determine what the highest and 11 best bid is. So if we submitted a bid for $10 million for our

12 assets, hypothetically, and that’s the only bid and we credit 13 bid, and they compare that bid to the bid of Carrington for the 14 entire organization, obviously we’re not going to win. But at

15 least we preserved our right to credit bid under 363(k). 16 That’s all I’m saying, Your Honor. 17 18 way. THE COURT: But you know -- well, let’s put it this

Anything can happen, I suppose, at an auction and in a But the number is always going to be And, I mean, I -- well, okay,

19 way, we all hope it does.

20 bigger than what GECC proposes. 21 thank you. 22 MR. CHAPMAN:

We don’t know that until the auction’s Thank you.

23 over, Your Honor, is my point. 24 25 THE COURT:

It’s bigger now overall. But there may be bidders who want to

MR. CHAPMAN:

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66 1 bid on other portions of the business and combined altogether, 2 that’s -3 THE COURT: And see, and that’s -- that’s the evil And

4 against which the debtor and Carrington here are arguing.

5 defeats, really, probably mostly the purpose behind setting 6 bidding procedures. 7 you the last work. 8 MR. GALLERIZZO: Thank you. I just wanted to join in All right. Let me hear GECC. I’ll give

9 counsel’s comments because my suggestion was going to be that 10 we see many sales where the parts are sold, the whole is sold, 11 and then there’s an ultimate highest bid that’s taken. 12 This bidding procedures could have been set up that

13 way and preserved our credit bidding rights, preserved the 14 right to Carrington to bid for the whole and we wouldn’t be 15 arguing this objection. 16 way, Your Honor. I don’t know why is wasn’t done that

That’s the way you preserve credit bidding

17 without prejudicing GE or the purchaser in this particular 18 case. 19 Leaving our credit bid right in place, I don’t see

20 any prejudice to this particular debtor or to the purchaser 21 because we bid whatever amount we bid, they’re going to over 22 bid us and that’s the end of it. But we’ve sat and we That’s --

23 protected our credit bid for later on down the road.

24 the Submicron case says we can kind of set what the value of 25 that collateral is by our bid rights, okay. We can go in and

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67 1 bid right up to the amount of our debt and I want to protect 2 that right. 3 THE COURT: Well, but see, wouldn’t you still be able

4 to protect that as a result of objecting to the sale ultimately 5 when the auction is completed. You can still come in and

6 argue, wait a minute, I -- you know, for my portion of the 7 assets, the bid isn’t high enough. And then it would be

8 incumbent upon the debtor to demonstrate that the price was 9 adequate, wouldn’t it? 10 MR. GALLERIZZO: Well, except that if Submicron says

11 I can bid the full amount of my debt irrespective of what the 12 value of the equipment is, that sets the price for those 13 assets. And by taking away those credit bid rights, you’ve We’re a small creditor,

14 taken away that essential right. 15 that’s why it’s there. 16 THE COURT:

But see, then you make the argument that

17 the debtor makes, really, that if that were the case here, 18 cause does exist to deny the relief that you’re requesting 19 because otherwise, again, has the tail wagging the dog. And

20 that can’t be what’s intended when the ultimate overriding goal 21 is to maximize the value of the sale of these assets for the 22 estate. 23 MR. GALLERIZZO: But by allowing us to credit bid,

24 that’s -- we’re not going to preclude that from happening, Your 25 Honor. Your Honor has indicated that the offer that’s here is J&J COURT TRANSCRIBERS, INC.

68 1 going to beat us. 2 3 it will. THE COURT: Well, put it this way, it’s likely that

But, you know, I’ve tested -- I’m trying to test both

4 positions here and come to what I think is the appropriate 5 solution. 6 7 MR. GALLERIZZO: THE COURT: Sure. Anything further in support

All right.

8 of your objection? 9 10 11 12 13 MR. GALLERIZZO: THE COURT: No, Your Honor.

Thank you. Thank you very much.

MR. GALLERIZZO: THE COURT: MS. UHLAND:

You’re welcome. Your Honor, we would stand by and

14 perhaps I didn’t understand the Court’s objection before which 15 caused the -- or proposal before. As I said before, if they --

16 as part of a bid that’s consistent with our bid procedures, 17 credit bid a portion -18 19 THE COURT: MS. UHLAND: No, I understood. -- alternatively, if they can combine

20 with other bidders to prepare a qualified bid, if it’s on all 21 assets, they can credit bid their portion. Basically what

22 these parties were talking about happening sometimes at an 23 auction, if they’re able to come up with that part of the 24 auction -25 THE COURT: Those’s alternatives under these

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69 1 circumstances strike me as being just as unpractical as 2 permitting what GECC has requested frankly. 3 appreciate your effort. 4 MS. UHLAND: Then, thereafter, Your Honor, again, to Not that I don’t

5 the extent that 363(k) can be viewed as a constraint on the 6 bidding -- the procedures, we do believe that cause does exist 7 to prohibit the credit bid on a portion of the assets 8 inconsistent with our bidding procedures and that, you know, 9 simply a -- the rights under Submicron we realize, you know, 10 that statutory or that case law derived right to establish 11 value is overridden, in effect, by our bidding procedures 12 orders and the cause shown to maximize value in our estate. 13 We believe they still have their full rights under And therefore,

14 506 to establish the value of their collateral.

15 there is cause and that there’s not substantial prejudice to 16 those creditors because of that preservation. So we would ask

17 the Court to overrule the objection with the commitment on the 18 record, with the ten days, we will insure that the asset 19 schedules are provided. 20 THE COURT: All right. Now, let me ask this. Is it

21 the debtors’ position that on the credit bidding issue, that 22 that’s a strictly legal matter and that there are no facts 23 which need to offered in support of that? 24 25 MS. UHLAND: THE COURT: Your Honor -I don’t have an answer in mind, but

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70 1 that’s why I’m asking the question. 2 MS. UHLAND: Your Honor, I believe that on the for

3 cause matter that the facts set forth in the debtors’ motion 4 with respect to the necessity to adopt these bidding procedures 5 in order to obtain -- including the breakup fees and the total 6 package of bid procedures was necessary for the debtors to 7 secure the stocking horse bid of Carrington, and in their 8 totality, are in the best interest of the estate. 9 We’re prepared to provide evidence of the -- to the

10 extent further evidence is required as a factual matter on the 11 overall necessity for this entire package of bid procedures to 12 be approved in their entirety, if the Court views that cause 13 matter is a factual matter. 14 THE COURT: Well, let me ask GECC’s counsel whether

15 he has a view. 16 17 question. 18 THE COURT: The question was whether -- I asked the MR. GALLERIZZO: Your Honor, I didn’t hear the

19 debtor whether the debtor thought that the objection could be 20 resolved strictly on legal grounds or whether there were 21 factual disputes in connection with having to resolve that 22 issue. 23 MR. GALLERIZZO: I think there is in the necessity,

24 if the Court is going to entertain the issue of cause, for 25 there to be a factual hearing on that issue. J&J COURT TRANSCRIBERS, INC.

71 1 2 THE COURT: Oh, I’m going to entertain it. Yeah. I think there is the

MR. GALLERIZZO:

3 necessity, Your Honor, for factual evidence to be placed before 4 this Court to show the harm that has been argued today. 5 THE COURT: All right. Well, I’ll ask at least for a

6 proffer and we’ll se whether GECC wishes to cross examine. 7 8 MS. UHLAND: (Pause) Your Honor, I would like to proffer the

9 testimony of David Kurtz who is the co-head of global 10 restructuring for Lazard Frères and a managing director. 11 Kurtz is present in the courtroom. 12 If called to testify, Mr. Kurtz would describe his Mr. Kurtz is a managing Mr.

13 background and position as follows:

14 director in the restructuring group of Lazard and is leading 15 the engagement of Lazard in connection with New Century. 16 Mr. Kurtz joined Lazard from the Chicago office of

17 Skadden Arps Slate Meagher & Flom where he was a senior 18 partner. And his restructuring assignments at Lazard have

19 included the representation of Adelphia Communications Group, 20 Northwestern Corporation, Excel Energy Corporation, Safety 21 Clean Corp., American National Power, the Creditors Committee 22 of Calpine Corporation, the Creditors Committee of Northwest 23 Airline, United States Air Transportation and Stabilization 24 Board in connection with the U.S. Airways and ATA Airlines. 25 Prior to joining Lazard, while he was at Skadden J&J COURT TRANSCRIBERS, INC.

722 7 1 Arps, he served as lead counsel on several large corporate 2 restructuring including Polaroid Corporation, Washington Group 3 International, Montgomery Ward, Transworld Airlines in their 4 initial Chapter 11, Morrison Knudsen, ICG Communications and 5 Phillips Services. Mr. Kurtz has over 24 years of

6 restructuring experience. 7 Mr. Kurtz would further testify that he was, in

8 connection with his role as lead -- leading the engagement of 9 Lazard with respect to New Century, intimately involved in the 10 negotiations with Carrington with respect to the -- their 11 purchase agreement and bid protections that are the subject of 12 the debtors’ motion today. 13 Mr. Kurtz would further testify that the bid

14 protections contained in the debtors -- I’m sorry, in 15 connection with the Carrington proposal which included detailed 16 -- a detailed bid procedures order including both the topping 17 fees -- or breakup fees, termination fees, but also the 18 detailed procedures for the bid process including the bidding, 19 qualifications for bidding and the assets subject to bid were 20 part of the negotiations with Carrington and necessary to 21 induce Carrington to provide its overall asset purchase 22 agreement in stocking horse proposal. 23 He would further testify that the negotiation of all

24 aspects of the bid protections were the subject of arms length 25 negotiations by Carrington and New Century and that J&J COURT TRANSCRIBERS, INC.

733 7 1 negotiations were led by professionals at Lazard and outside 2 counsel on behalf of New Century as well as outside 3 representatives of the -- of Carrington and evidence of 4 substantial give and take by both parties. These negotiations

5 included negotiations with respect to the various bid 6 procedures. 7 He would further testify that the ultimate procedures

8 and breakup fees were both designed to enhance bidding and 9 maximize value to the estate, that the current proposed 10 procedures that were attached to the notice has evidenced that 11 it did not show any bidding, that over 25 parties have emerged 12 as potential bidders since the debtors filed their motions and 13 proposed procedures motions. And that the -- further, that the

14 filing with the stocking horse bid on these assets made them 15 more marketable and beyond that, had a stabilizing influence on 16 preserving the ongoing enterprise serving as an important 17 employee retention tool. 18 He would further indicate that the debtors, the

19 Creditors Committee and Carrington have had extensive 20 negotiations and discussions over the past several days with 21 respect to the bidding process and the proposed auction process 22 and the current bid procedures set forth to the Court as a 23 result of the involvement of the professionals of Carrington, 24 but more importantly, of the debtor and the Creditors Committee 25 and that each proposal was concurred by the professionals for J&J COURT TRANSCRIBERS, INC.

744 7 1 the debtors and the Creditors Committee and protection for the 2 investment bankers for the Creditors Committee to structure 3 those -- I’m sorry, the investment bankers for the debtors and 4 the financial advisors for the Creditors Committee to structure 5 those as a method to both best maximize value for the debtors’ 6 estate and run an auction that is designed to maximize the 7 value for the debtors’ estate. 8 He would further testify that the bidding procedures

9 and others -- the bidding procedures as well as the breakup fee 10 and other expense reimbursement, other provisions, are 11 reasonable. They are now supported by the Creditors Committee,

12 that they induced the buyer to continue to do work and 13 diligence that it would not have otherwise done, and therefore 14 would satisfy the O’Brien factor set forth in that court’s 15 decision. 16 17 18 right. 19 20 21 MR. GALLERIZZO: THE COURT: THE CLERK: Just here, Your Honor? Your Honor, that would conclude proffer of Mr. Kurtz. THE COURT: Anyone care to examine Mr. Kurtz? All

Okay. Please raise your right hand, place your

22 left hand on the Bible. 23 24 DAVID KURTZ, DEBTOR’S WITNESS, SWORN THE CLERK: Would you please state for the record

25 your entire name and spell your last. J&J COURT TRANSCRIBERS, INC.

Kurtz - Cross/Gallerizzo 1 2 3 4 5 BY MR. GALLERIZZO: 6 Q 7 A 8 Q Good morning, Mr. Kurtz. Good morning. Can you tell the Court what discussions were had between THE WITNESS: THE CLERK: David Steven, K-u-r-t-z.

75

You may be seated. Thank you. CROSS EXAMINATION

THE WITNESS:

9 you, representatives of the debtor and the Carrington Group 10 regarding GE’s collateral which would consist of primarily the 11 computer equipment that’s at issue in this particular matter? 12 A I don’t recall -- excuse me -- I don’t recall

13 participating in any such discussions. 14 Q Okay. Do you believe that the Carrington Group would walk

15 away from the offer that they’ve placed on the table for all 16 the assets if GE were allowed to credit bid just the computer 17 equipment? 18 A I have no way of knowing what Carrington would either do

19 or not do. 20 Q Okay. Do you know why all the assets of this particular

21 loan servicing portfolio were not offered separately and then 22 together as a group? And then a determination would be made

23 where the highest bid came from? 24 A Yes. That would make for a very disorganized, messy sale

25 that, in my view, could ultimately reduce the overall value of J&J COURT TRANSCRIBERS, INC.

Kurtz - Cross/Gallerizzo 1 the process.

76

And if we literally had to offer in separate lots

2 this -- the assets securing the claims of every secured 3 creditor, those assets are subject to the sale, I’ve never seen 4 it done that way in my entire career and if -5 Q 6 A 7 Q 8 A Well -- okay. Can I finish my answer. Sure. And I think it would make things needlessly complicated

9 when there is another alternative, another process that I’m 10 personally familiar with in my experience which is everybody’s 11 rights attached to the proceeds and those rights are dealt with 12 after we’ve created a pot of cash, maximized the creation of 13 that cash by conducting the cleanest possible sale and the 14 Judge will determine who’s entitled to what and all arguments 15 are preserved. 16 Q Okay. Let me just backtrack a little bit on what you just Basically, what I suggested was you have an And you have separate bidding on

17 commented on.

18 overall sell of the assets. 19 specific assets.

And it’s your believe that that would cause

20 the overall bid to be less than what Carrington offered? 21 A 22 Q 23 A It absolutely could do that. And why is that again? Complexity of having to offer, and I don’t know how many

24 different lots we would have to offer as part of this sale, but 25 the more complexity one introduces into the sale, the greater J&J COURT TRANSCRIBERS, INC.

Kurtz - Cross/Power 1 risk that one does not maximize value. 2 Q 3 lot? 4 A How about if you just had one additional lot? That wouldn’t be complex, would it? Just GE’s

77

I -- if we had only one, we could probably manage our way

5 through that. 6 Q 7 8 Honor. 9 10 Mr. Kurtz? 11 MR. POWER: Yes, Your Honor. Mark Power from Hahn THE COURT: Does anyone else care to cross examine Okay. MR. GALLERIZZO: I have no further questions, Your

12 Hessen, counsel for the Committee 13 14 BY MR. POWER: 15 Q Mr. Kurtz, during your negotiations with Carrington in CROSS EXAMINATION

16 this deal, was it your understanding that Carrington was 17 looking to buy the entire servicing platform as an operating 18 business? 19 A 20 Q Correct. In your experience, if the bidder -- a very successful

21 bidder, do you think they would be able to close within the 22 time period set forth in the asset purchase agreement and also 23 be able to replace all of the thousands of pieces of equipment 24 that GE has subject to it’s lien? 25 MR. GALLERIZZO: Objection, Your Honor.

J&J COURT TRANSCRIBERS, INC.

Kurtz - Cross/Power 1 2 THE COURT: Basis? Basis.

78

MR. GALLERIZZO:

Basis for the answer?

I don’t know

3 that he has the basis to answer that. 4 5 6 7 THE COURT: Foundation is the objection. Foundation.

MR. GALLERIZZO: THE COURT: MR. POWER:

Any response? Well, Your Honor, I believe it’s clear in

8 the proffer that this gentleman is extremely experience both in 9 terms of sales as a counsel for Skadden Arps and also as an 10 investment banker. He’s certainly familiar with the

11 negotiations with Carrington and he understands what it is to 12 sell an operating business and what it would involve to remove 13 pieces of equipment from hundreds of locations across the 14 country. 15 So I think he’s qualified for that issue. THE COURT: Well, why don’t you lay just a little bit

16 of foundation. 17 Q Mr. Kurtz, in connection with your -- well, let me do it Are you familiar with the debtors’ operations?

18 this way. 19 Generally? 20 A 21 Q

Yes, I am. Could you briefly describe for the Court exactly how many

22 offices are located in connection with this business and how 23 many pieces of equipment are involved in the sale of the 24 servicing business generally. 25 A There are two main bases of operation with regard to the J&J COURT TRANSCRIBERS, INC.

Kurtz - Cross/Power 1 servicing business. The majority, the vast majority of the

79

2 employees associated with that business are located in Santa 3 Ana, California. Then there are also a smaller group of As to how many computer

4 employees that are located in Indiana.

5 terminals they have, I don’t know the answer to that question. 6 Q Well, let me ask this question. Is it -- you understand

7 the service business? 8 business generally? 9 A 10 Q 11 A 12 Q Yes.

You’re familiar with the service

Is that a technology-based business? Yes, very much so. To your knowledge, do those hundreds of employees all

13 utilize computers as part of their performing their -14 A 15 Q I believe most if not all. And is the computers and the telephone system a crucial --

16 in your experience in this business, a crucial element of the 17 sale of that business and the way it operates? 18 A Yeah, exactly. It goes to the heart of what these

19 employees do.

I mean, their job is to collect, to process

20 payments that come into the door with respect to the mortgage 21 loans that they’re servicing. And most importantly, to very

22 quickly reach out to delinquent debtors with respect to 23 mortgage loans that have fallen into default. Experience has

24 proven that the sooner one reaches out to those delinquent 25 debtors, the greater likelihood that one can restore them to J&J COURT TRANSCRIBERS, INC.

Kurtz - Cross/Power 1 good standing. And so they’re -- these employees are highly

80

2 dependent upon the technology associated with their computers 3 and with their telephones. 4 jobs without it. 5 Q Now, in connection with the debtor’s operations and the They literally couldn’t do their

6 debtor’s computer systems, are you aware that the debtor has 7 certain software on those computers that is important for the 8 servicing of those mortgage loans? 9 A 10 Q Yes. And now, let’s do the scenario which is being proposed to

11 the Court, where basically you would permit a lot which would 12 permit the bulk of that equipment to be sold separately. Do

13 you think -- and understanding this debtor’s business and the 14 bid that Carrington made -- that we’d be able -- the debtor 15 would be able to close on this sale within the time frame of a 16 little -- we’re at a month approximately, and also replace all 17 the equipment that GECC would be bidding on? 18 A I think that would be virtually, if not impossible, if not I mean, if we couldn’t control those

19 literally impossible.

20 assets, it would be extremely harmful to our ability to realize 21 value and close this sale. When I gave my earlier answer as to

22 whether it could be managed or not, I was assuming that a -- as 23 long as the total bid exceeded the amount of the credit bid for 24 that equipment, we could continue to control those assets. If

25 this creates and opportunity to lose control of those assets, J&J COURT TRANSCRIBERS, INC.

Kurtz - Cross/Power 1 then we are literally jeopardizing the entire transaction. 2 Q Now, let’s look to the separate lot for GECC.

81

Has the --

3 is the debtor in position today to notice -- let me -4 5 Q MR. POWER: Strike that, Your Honor.

Has the debtor made an inventory, to your knowledge, of

6 all of its assets that are subject to this sale and is in a 7 position within the next few days to notice separate sales of 8 all that equipment that may be subject to a lien? 9 A 10 Q I don’t know if we could do that or not. Is your office, which would be running this auction, in a

11 position where it could notice all potential purchasers of all 12 those individual assets that are subject to GECC’s lien in 13 order to insure the Court and the creditors that we’re getting 14 the maximum bids on that lot? 15 A 16 Q Sorry, I don’t think I followed. Let me -- under the following scenario where a lot is set

17 up for the GECC collateral involving hundreds of pieces of 18 equipment and telephone systems is sold separately, is your 19 office prepared in the next few days to create a list of all 20 the potential purchasers of those type of assets such that you 21 can insure this Court and creditors that the bids received on 22 that lot at the auction are maximum value for this estate? 23 A 24 Q I wouldn’t even know how to go about doing that. But it’s fair to say that you couldn’t do that within the

25 procedures and keeping the Carrington deal in place and also do J&J COURT TRANSCRIBERS, INC.

Kurtz - Cross/Power 1 that within this time frame? 2 A 3 Q In a credible way it seems virtually impossible. So in your judgment, based on your experience, GECC’s

82

4 credit bid is not designed to show fair market value for those 5 assets in a open noticed auction? 6 view? 7 8 9 MR. GALLERIZZO: THE COURT: Objection, Your Honor. Was that your opinion, your

Basis? Basis is he’s asking him for a legal

MR. GALLERIZZO:

10 conclusion. 11 12 A THE COURT: Overruled. You may answer, sir.

This doesn’t strike me as having anything to do with fair It seems to me this is all about tactics and

13 market value. 14 leverage. 15 Q

And you said previously in your testimony in response to

16 GECC’s counsel that in your view GECC’s protected as to the 17 fair market value of its collateral because it’s liens will be 18 attached to the proceeds, will succeed the entire debt and the 19 valuation issue can be reserved, isn’t that right? 20 A I actually went one step further than that. What I said

21 was all of their rights can be protected with regard to those 22 proceeds and ultimately determined by the Bankruptcy Court. 23 Q So in your view, does the fact that GECC may credit bid in

24 an auction it really hasn’t been noticed properly and hasn’t 25 been vetted for the best possible values, does that have any J&J COURT TRANSCRIBERS, INC.

83 1 reflection on what the fair market value of that collateral may 2 actually be at the end of the day? 3 A 4 5 No. MR. POWER: THE COURT: Your Honor, no further questions. Anyone else like to examine this witness?

6 Is there any redirect? 7 8 9 10 MS. UHLAND: THE COURT: No, Your Honor. Thank you, sir. Thank you. Your Honor, with that, we would again You may step down.

THE WITNESS: MS. UHLAND:

11 request the Court overrule the objection and argue that cause 12 is certainly set forth with respect to 363(k) to not permit the 13 credit bidding except as previously described as part of an 14 overall qualified bid. 15 THE COURT: All right. Is there anyone who I have

16 not yet heard from who wishes to be heard in connection with 17 this motion? 18 I hear no response. All right.

This is a circumstance under which permitting the

19 relief that GECC here requests in connection with credit bid I 20 think creates more problems than it solves. 21 Kurtz. I agree with Mr.

It has the strong potential to create a disorganized

22 sale and potentially to reduce the overall value of the going 23 concern that the debtor here is attempting to capture. Not

24 only that, but it would make for a destructive transition based 25 upon the testimony of Mr. Kurtz which I find credible. J&J COURT TRANSCRIBERS, INC. Yet, on

84 1 the other hand, GECC is fully protected with respect to the 2 value of its liens which will attach to proceeds. 3 Under these circumstances, I do find that cause Neither will I

4 exists and will not permit the credit bid.

5 require an allocation prior to the sale as requested by GECC. 6 The debtor has agreed already to provide the list of assets. 7 So that part of the objection has become moot and therefore 8 what remains of the objection is overruled for those reasons. 9 I find otherwise that with respect to the proposed

10 bidding procedures, especially in light of support of the 11 Committee and the resolution of the objection of the U.S. 12 Trustee and of others that they provide an appropriate basis to 13 frame the auction. I conclude that the breakup fee and expense

14 reimbursements specifically are of value to the estate and meet 15 the administrative expense priority required by O’Brien and in 16 part help frame the bidding and auction procedures, all to the 17 value and benefit of the estate. So I’m prepared, upon

18 submission of the appropriate order under certification 19 accompanied by a final form of APA, to approve the bidding 20 procedures. 21 22 right. 23 Are there any questions about that ruling? I hear none. I’m sorry. Yes, Your Honor. On the allocation All

MR. GALLERIZZO:

24 issue, we do plan to come back in response to the sale motion 25 and raise that issue again. Can I ask the Court to indulge us

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85 1 to raise it once again if I could? 2 THE COURT: I don’t think you need my indulgence.

3 Today’s ruling was with respect to bidding procedures only -4 5 MR. GALLERIZZO: THE COURT: Okay.

-- and was not intended to be with

6 prejudice to any ground for objection you might have with 7 respect to the sale. 8 9 10 MR. GALLERIZZO: THE COURT: MS. UHLAND: Yes, Your Honor.

All right. Your Honor, I think the only remaining

11 matter is one of setting two dates for possible sale hearings. 12 One is if there is an auction and one if there’s not. 13 THE COURT: Okay. If Carrington is the only bidder,

14 you’re requested a hearing of May 21st or 22nd. 15 MS. UHLAND: No, if there is -- if they’re the only

16 bidder, we ask for May 18th. 17 18 19 THE COURT: MS. UHLAND: THE COURT: Eighteenth. Which I believe is a Friday. It’s Friday. May 18th at 10:00. By the Does

20 way, I did not ask, but I’ll do so for the record now.

21 anyone have an objection to structuring the sale hearings in 22 that matter? I hear no response. Okay. I didn’t mean to

23 foreclose anyone from commenting on that. 24 MS. UHLAND: And then we’ve requested the 21st which

25 should be a Tuesday. J&J COURT TRANSCRIBERS, INC.

86 1 2 3 4 5 THE COURT: MS. UHLAND: THE COURT: MS. UHLAND: THE COURT: No, that’s a Monday. It’s a Monday? Yeah. Okay. Yes.

And Tuesday the 22nd is booked.

Is Monday the 21st available? Well, the answer’s yes, but I need to be I need

6 out of here -- I would set the hearing for the morning. 7 to be out of here by 1:00 in the afternoon. 8 MS. UHLAND:

And then if it were -- if we didn’t

9 finish then, for some reason, it would be continued to 10 Wednesday or is the -11 THE COURT: No, I have four trial days, full trial I guess -- well,

12 days scheduled the 22nd through the 25th. 13 we’ll do one of two things.

We’ll either come back later in

14 the day on the 21st or somehow squeeze you in, you know, within 15 the next couple of days after that. 16 17 18 MS. UHLAND: THE COURT: MS. UHLAND: Thank you, Your Honor. So at 10:00 Monday, May 21st. All right. We’ll fill those dates in in

19 the order that we’re submitting. 20 21 THE COURT: MS. UHLAND: All right. Other -- oh, Your Honor may need to Double

22 track back the proposed objection deadlines as well. 23 check. 24 25 We had May 15th as the proposed objection -THE COURT: MS. UHLAND:

Well, the auction was going to be -Oh, sorry.

J&J COURT TRANSCRIBERS, INC.

87 1 THE COURT: -- April, now it’s going to be May 16th.

2 Do I have that correct? 3 4 5 MS. UHLAND: THE COURT: MS. UHLAND: Yes, Your Honor. And you propose as an objection -Objections to the sale would be due the

6 day before the auction. 7 8 9 10 11 MS. UHLAND: THE COURT: MS. UHLAND: MR. POWER: Does that make sense? What? Oh, you want to do it earlier?

Your Honor, could we have one second? (Pause) All right, Your Honor, we’d like to

12 revise and have -- and we’ll again conform the order, to 13 provide that objections other than those to adequate assurance 14 be due May 14, so it’s a little bit earlier. And that adequate

15 assurance objections due May 17th which would be after the 16 auction. 17 18 19 THE COURT: MS. UHLAND: THE COURT: Yeah. 4:00. Now, I want to have all the papers in Say by 4:00?

20 hand prior to the hearing on the 18th, say by 8:30. 21 MS. UHLAND: We will have that completed, Your Honor. If there’s

22 Well, at least from the -- all the papers we can.

23 no auction and then the hearing is on the 18th, there’s a -- at 24 4 p.m. the day before we would still be getting the adequate 25 assurance objections. So anything other than that we could

J&J COURT TRANSCRIBERS, INC.

88 1 have to the Court by 8:30. 2 3 hearing. 4 5 MS. UHLAND: THE COURT: Oh, okay. I need more than 10 minutes, that’s all THE COURT: No, I meant 8:30 on the morning of the

6 I’m saying. 7 MS. UHLAND: We’ll make sure that happens. I think Again,

8 that’s it on this matter on the calendar, Your Honor.

9 we’re going to work to submit -- before I speak too quickly, 10 let me make sure that I’ve covered everything. 11 12 THE COURT: Okay. Your Honor, Tom Kiriakos again on

MR. KIRIAKOS:

13 behalf of Carrington. 14 have.

If I can point out an issue that we

The APA’s going to have a drop dead date which is pegged

15 in terms of at least clearing a number of days from the entry 16 of the sale order to the expiration of the appeal period. And

17 if, on May 21st, which is really the hearing date -- May 18th, 18 while hopefully will be perfunctory because we’ll be prevailing 19 bidder and there wouldn’t have been a topping bid, so there 20 aren’t going to be the number of objections, et cetera, you 21 would assume, is probably a workable date and time. 22 If there are -- if there is an auction and competing

23 bids and everything else, May 21 has a much more likely 24 situation for a hearing that goes beyond those days. So if we

25 could ask that what those additional days might be so we can J&J COURT TRANSCRIBERS, INC.

89 1 then look at the date we have for the termination date and at 2 least move it out so going in we haven’t structured something 3 that doesn’t work, I’d be appreciative. I don’t know if I’m

4 making our problem clear enough on the record or not. 5 THE COURT: Well, no. Is what I had initially

6 thought was that we squeeze it in sometime before, during, 7 after the trial sessions -8 9 10 MR. POWER: THE COURT: MR. POWER: Right. -- in the remainder of the week. I understand. I know that’s the goal. But just in the event

11 And we appreciate the accommodation. 12 that we don’t get there. 13 THE COURT:

Are you asking me what day the following Or are you telling me something

14 week I might carry it over to? 15 else? 16 17 18 19 20 21 22 23 MR. POWER: THE COURT: MR. POWER: THE COURT: MR. POWER: THE COURT: MR. POWER: MS. UHLAND: No --

Don’t be shy. No, I’m asking you that, Judge. Well, it wouldn’t be Monday, the 28th. Right. We could do 10:00 on the 29th. Thank you, Your Honor. Thank you, Your Honor. Very much. So our proposal

24 would be to bring the agreed order today back to the Court and 25 it will be available to sign that. We do have an issue of

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90 1 getting our noticing out for this. 2 THE COURT: Yeah, I have an internal meeting sometime I have the hearing at three. I’ll be

3 between now and three.

4 here, I’m guessing, at least until four. 5 6 MS. UHLAND: THE COURT: All right. And if you’re -- you know, but if you’re I might stay. Your

7 going to have something in at 4:05, let me know. 8 MS. UHLAND: All right.

Thank you, Your Honor.

9 Honor, with the balance of the agenda, what we propose to do is 10 continue the hearing on the loan origination platform to next 11 Tuesday at 10 a.m., which is Item 3. 12 THE COURT: All right. All right. And then the remaining matter for today, The 24th at 10. No, it will

13 be the 24th at 2:30. 14 MS. UHLAND:

15 Your Honor, is a portion of the employee matter that remains 16 from -- our employee motion that remains from last week with 17 respect to participants in our pre-petition commission, bonus 18 replacement plan with titles of senior vice-president and 19 above. 20 21 22 THE COURT: MS. UHLAND: THE COURT: What’s left? That is left. Also, Your Honor --

Well, what of that -- what of the relief

23 requested remains? 24 MS. UHLAND: There’s two items, one of which we’d Or one of them we’d like to proceed

25 like to continue today.

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91 1 with as soon as the Court is available. I don’t know whether

2 we want to take a lunch break and go forward, but what remains 3 is with respect to the pre-petition portion that’s payable 4 post-petition of what we refer to as our wholesale retention 5 plan for six employees who are paid compensation on a quarterly 6 basis; five with the senior vice-president title and one with 7 an executive vice-president title that were parties to that 8 plan. 9 The debtors would like to come today. We have a

10 witness here today and more detailed factual basis to walk 11 through two elements; one -- two reasons that they do not fall 12 under 503. One is the ordinary course basis of their And second, the absence of

13 compensation pursuant to this plan.

14 insider status by these six individuals notwithstanding their 15 titles. So we have a further factual showing to make to

16 address the Trustee’s objection to our wage motion to require 17 us -- or to object to those payments to the extent prohibited 18 by 503. The Committee had already agreed to those payments.

19 So that’s the balance of that issue. 20 We’d also agreed to put off a second part of our

21 production, that same adoption of that plan, which is the post22 petition portion of that plan. The plan is also in effect for We are --

23 April for those employees for payment in May.

24 reserve our right with respect to whether Court approval is 25 required for those, what we believe are ordinary course J&J COURT TRANSCRIBERS, INC.

92 1 compensation. But we’re hoping to continue to work with the

2 Committee so we don’t need to litigate that issue and we can 3 just have it pursuant to an agreed order. 4 As of 12/20, my understanding is the Committee’s not Oh, Your Honor, may have one

5 yet ready to have a resolution? 6 moment on that issue.

Oh, and I’m sorry, Your Honor, perhaps

7 we can take a -- we could take a brief break during -- while I 8 confer with Committee counsel. I understand that the Court

9 requested a scheduling on the motion for the Committee with the 10 deferred compensation claimants and they’ve asked to be heard 11 ahead, if that’s okay with Your Honor. 12 13 THE COURT: MR. HUSTON: That’s fine. Good morning, Your Honor. May it please

14 the Court, Joseph Huston of Stevens Lee on behalf of the 15 movants in Docket Item 307 which is an emergency motion for an 16 order directing the U.S. Trustee to appoint a separate 17 committee for certain deferred compensation claimants. 18 moved -- also move the Court to expedite that limit in 19 shortened notice. Our requested dates were to try to hook it And we

20 onto the omnibus date of next -- of April the 24th and chambers 21 called and asked if we would show up today to discuss that. 22 Our co-counsel, Robert Keach, whom I believe Your

23 Honor knows and has granted pro hoc status is on the telephone 24 and I think it’s appropriate for him to take the lead assuming, 25 of course, that Your Honor doesn’t have -- first have questions J&J COURT TRANSCRIBERS, INC.

93 1 for us to address. 2 3 4 5 THE COURT: MR. HUSTON: THE COURT: MR. HUSTON: Not first. You’re first. I said I do not have questions first. Oh, okay, fine. Did you have an idea

6 about -- in terms of scheduling, sir? 7 THE COURT: Well, let me first ask whether the U.S.

8 Trustee cares to be heard on this request. 9 MR. HUSTON: And, Your Honor, so it’s clear, I think

10 it was in our motion, but we have been talking with the United 11 States Trustee and we wish to continue to talk with the U.S. 12 Trustee and other parties-in-interest. But just because of the

13 trajectory of this case, we’re concerned that if we didn’t get 14 something teed up, ready to be moving on now, that we would end 15 up having completely missed the train down the line. 16 17 18 Shur. 19 20 THE COURT: MR. KEACH: All right. And, Your Honor, Robert Keach, Bernstein

I am on the phone for the named beneficiaries. THE COURT: All right. Your Honor, good afternoon. Jim

MR. MCMAHON:

21 McMahon for the U.S. Trustee.

Your Honor, we do not oppose We just ask that the

22 expedited consideration of the motion.

23 objection deadline be set at a time, I believe the requested 24 date was the 24th. To the extent that it will be heard on the

25 24th, we’d like the objection deadlines set perhaps on the 23rd J&J COURT TRANSCRIBERS, INC.

94 1 at 4 p.m. I don’t know whether the debtors or other parties

2 here have a position with respect to scheduling. 3 MR. HUSTON: And, Your Honor, that was also our

4 proposed objection deadline, 4:00 on the 23rd. 5 6 heard? 7 8 Committee. MR. POWER: Yes, Your Honor. Mark Power for the THE COURT: All right. Does anyone else care to be

Your Honor, we do object to the expedited hearing Quite frankly, we’ve gotten some documents in

9 on this matter.

10 the last couple of days which set forth what we think is the 11 claim or position of the -- in essence, the trustee for this 12 group. This motion requires some discovery because as far as

13 we can tell, this is really simply one creditor arguing its 14 position in this case as opposed to a group of creditors which 15 need representation as a group. 16 But that issue needs to be vetted factually before we So we would ask that the

17 can basically hear by this Court.

18 Court not set the hearing for Tuesday because, quite frankly, 19 we’re not going to get it done. But simply set a hearing a

20 little further out, give us some time to have discovery on that 21 issue and we’ll try to do that expeditiously. And quite

22 frankly, the movant here can -- it has the right to be heard 23 and anything that comes up in the next four days, well, the 24 next -- until the hearing is set, that movant can be heard as a 25 creditor of the estate. J&J COURT TRANSCRIBERS, INC.

95 1 But at this stage, Your Honor, we’re just telling you

2 that Tuesday is really productive given the factual issues that 3 are involved in this motion. 4 THE COURT: What would you suggest in the way of a

5 time frame? 6 MR. POWER: Well, we were thinking something in the

7 two week range to get documents and basically understand 8 further the parties claimants -- claims and then schedule the 9 hearing in that range. There is a date of May 7, going off There’s also May 15

10 memory, Your Honor, that is in this case. 11 although that may have to be adjourned.

But something in that

12 range I think would be a fair compromise to give us a chance to 13 look at the facts and at the same time, make sure that this 14 party is not waiting for a long time for the motion to be 15 heard. 16 17 THE COURT: MR. KEACH: Does anyone else care to be heard? Your Honor, Mr. Keach for the

18 beneficiaries.

We have laid out our position in the motion.

19 We do think that, as a number of parties have commented today, 20 this case is proceeding at lightening speed and the 21 beneficiaries do feel as if they will be left at the station on 22 a number of issues if we can’t proceed quickly. 23 24 Committee. We’re certainly willing to cooperate with the I’ve had one conversation with Committee counsel

25 and supplied any information they wanted about the beneficiary J&J COURT TRANSCRIBERS, INC.

96 1 group and the statistics relating thereto. And we certainly

2 would authorize the debtor to provide information in this 3 respect as well. But waiting until May 7th on this issue seems

4 longer than is necessary to resolve the factual issues that the 5 Committee raises. 6 7 THE COURT: MS. UHLAND: Debtor care to be heard? Your Honor, on this matter we’re going

8 to be deferring to the Creditors Committee both as to timing 9 and substance. 10 11 THE COURT: MR. HUSTON: All right. Your Honor, on the one point about that In the footnote 3 to our -- to

12 this is only a single creditor.

13 the substantive motion, it recites that as of April the 9th, if 14 you will, the primary movant, Mr. Schroeder, had been contacted 15 by over 70 former employees. There are 570 people potentially

16 going to be affected by this, all under one of two plans that 17 are virtually the same. So this is not just a one-off issue. So I don’t want to

18 It’s going to affect a number of people.

19 minimize the -- minimize or maximize where we are today on 20 this. 21 THE COURT: Well, how would you describe I guess the

22 overall interest of your clients in connection with the speed 23 with which you’d like the matter to be heard? I mean, what

24 between now and May 7th would your clients suffer in the way of 25 prejudice if -J&J COURT TRANSCRIBERS, INC.

97 1 MR. HUSTON: I can answer that, but I think I’d defer

2 to Mr. Keach to do that. 3 4 THE COURT: MR. KEACH: All right. Mr. Keach. Robert Keach Bernstein

Yes, Your Honor.

5 Shur for the beneficiaries.

First, let me just contribute a The -- this has

6 couple of facts to what Mr. Huston just said.

7 been somewhat of a moving target as the beneficiaries get 8 further information about the case, Your Honor. But we have

9 actually had email contact with now over 125 potential 10 beneficiaries. We think that there are approximately 575

11 beneficiaries with total contributions into the deferred comp 12 plans in excess of $40 million. 13 We also understand but have not been able to confirm

14 that the amount of those contributions affect the funds 15 respecting those contributions are in a separate account being 16 managed by the designated trustee under the deferred comp plan, 17 but we don’t know that. 18 We also, Your Honor, don’t know whether or not the

19 notice contemplated by the Rabbi Trust arrangement which would 20 direct that trustee to hold those claims for others than the 21 beneficiaries has or has not been sent. 22 So one of the things we want to be able to do

23 immediately is move Your Honor for an order either continuing 24 or causing the segregation of those funds so that they cannot 25 be accessed by the debtor or by anyone else during the J&J COURT TRANSCRIBERS, INC.

98 1 litigation over these matters. 2 The interest of these beneficiaries is in asserting,

3 Your Honor, that those funds belong to the beneficiaries and 4 they’re not available for anyone else. If we are not able to

5 prevail on that issue, then the beneficiaries as a whole 6 constitute one of the larger creditor groups, at least one of 7 the larger creditor groups with a known non-contingent claim. 8 And we therefore have an interest in maximizing the value of 9 this estate for the benefit of unsecured creditors. And

10 particularly, maximizing the liquidity of the estate for the 11 benefit of unsecured creditors. 12 And as Your Honor already knows, a lot is happening

13 with respect to the sale of these assets and otherwise during 14 the time frame that we’re discussing -15 THE COURT: And I’m trying in my mind to connect the

16 necessity to have the hearing on April 24th with what’s 17 transpiring. 18 And I can’t make the connection. Well, I think, Your Honor, we have in

MR. KEACH:

19 many respects the same interests as the Committee -- as the 20 Official Committee does, in seeing that the various matters go 21 forward towards the direction of maximizing the estates for the 22 benefit of the unsecureds. And it’s certainly possible that

23 provided that we are informed and can weigh in on an individual 24 basis that we could push this matter beyond the 24th. And then

25 perhaps, if the Committee’s willing to share information with J&J COURT TRANSCRIBERS, INC.

99 1 us with respect -- and I think the indications early on were 2 they were -- that we can accommodate their needs to get 3 additional information. 4 And if the 7th is the first day we can get to that,

5 I’m sure, with some accommodations to keep this group in the 6 loop and permit us to have an affective voice, we can probably 7 accommodate that request. 8 THE COURT: I’m going to set it for May 7th.

9 Frankly, I -- before taking the bench, I had contemplated 10 setting it even later date since there was nothing that told me 11 that -- I haven’t heard anything today to say there’s something 12 on the verge a bad thing happening that needs to you to be 13 formulated if that’s what I ultimately ordered before then. 14 But, you know, I remember when everyone started to use FedEx. 15 All of a sudden we forgot regular mail. 16 technology’s advanced beyond that. 17 case is moving quickly. Of course,

And I acknowledge that the

But that doesn’t mean everything has And I think May 7th will

18 to move with breakneck speed.

19 probably give everyone enough time to sort through some of 20 those issues and maybe come to the necessary accommodations. 21 In any event, I can either mark up the order that’s

22 been submitted or you can give me a new one if you like. 23 24 25 order? J&J COURT TRANSCRIBERS, INC. MR. HUSTON: MR. POWER: At your pleasure, sir. Your Honor, may I have one just for the

100 1 2 THE COURT: MR. POWER: Yes. We actually agree with movants on one

3 issue which is that I think may -- in order to avoid litigation 4 and coming back, why don’t we consent to a freezing of the 5 status quo with respect to these funds basically until that 6 hearing date. We’re okay with that arrangement assuming

7 movants -- the last thing I want to do is have some kind of a 8 TRO in the pending period. And we understand that just as long

9 we freeze things where they are today, that we’ll basically 10 come to the Court on the 7th and then see what we do with the 11 motion. 12 THE COURT: All right. Does the debtor have any

13 problem with that? 14 15 MS. UHLAND: MR. HUSTON: No, Your Honor. Well, Your Honor, do you want us to

16 massage the order a little bit and put that in? 17 18 THE COURT: MR. HUSTON: I think so. And an objection date? Is that

May the 7th, I can’t remember.

19 a 10:00 hearing? 20 21 22 me. 23

I know it’s on only one item, I believe. It’s a 10:00 hearing, 10:00 hearing. And I don’t have my little Gameboy with It would be -It’s going to make

THE COURT: MR. HUSTON:

What day of the week is that, sir? THE COURT:

Seventh is a Monday.

24 April 30th the response date? 25 MR. HUSTON: Very good, sir. And I would like to

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101 1 thank the Court and all the parties here for letting us hop in 2 and get this disposed of. 3 4 5 Honor. 6 7 8 9 10 11 12 briefly? THE COURT: MR. KEACH: And with that, may we be --

Always good to see you, Mr. Huston. Mr. Keach for the beneficiaries, Your

I pass along similar thanks for the indulgences. THE COURT: MR. HUSTON: THE COURT: MR. HUSTON: MR. KEACH: You’re welcome. And may we be excused until -Yes. Thank you. Thank you, Your Honor. Your Honor, may I address the Court

MR. RALSTON:

Mark Ralston of Munsch Hardt Kopf and Harr on behalf

13 of one of the objecting parties to the motion to approve bid 14 procedures as to the loan origination platform. We filed a

15 substantial objection yesterday afternoon, was not aware that 16 this was going to be continued today. 17 18 THE COURT: Me neither. Yes. And that’s part of my problem, I understand that now --

MR. RALSTON:

19 Your Honor.

The cost and expense to my client having me fly up

20 here for the evening and then just to find out that there’s 21 nothing going on substantively is rather upsetting, will be 22 upsetting to my client. 23 We would request that -- I don’t know what the I understand Tuesday at 10:00 is

24 Court’s agenda is on Tuesday. 25 the reset hearing date.

We’d just request that the Court

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102 1 consider whether there is sufficient time to have this matter 2 heard and if not, maybe suggest an additional date. 3 4 THE COURT: It’s 2:30. It’s on at 2:30. And because we have a

MR. RALSTON:

5 substantial objection to this and it’s going to take some time 6 and I wanted to make sure that the Court was apprized of that 7 for its purposes and to try to limit costs to my client. 8 THE COURT: Well, I can tell you the courtroom will

9 be in use beginning at it’s either 5 or 5:30. 10 MR. RALSTON: Okay, Your Honor. Well, that’s -- we Also, if I

11 have three hours.

I think we can get a lot done.

12 would -- I would request that if there’s -- if maybe not, Your 13 Honor, maybe we’ll work a resolution between now and then, that 14 if there is going to be an additional continuance request so 15 that the hearing doesn’t go forward, I would appreciate the 16 courtesy that someone with the debtor or other party contact me 17 before I take the trip up. 18 THE COURT: I’m certain that every effort will be

19 made to accommodate your situation. 20 MR. RALSTON: Thank you, sir. Appreciate it. May I

21 be excused? 22 23 THE COURT: MS. MERSKY: Yes. Your Honor, Rachel Mersky of Monzack and

24 Monaco on behalf of RBC, also in connection with the loan 25 platform business. While we’re here today and didn’t know J&J COURT TRANSCRIBERS, INC.

103 1 definitively until that would be -- that that would continued 2 until Tuesday, that is not as much our concern as on Tuesday, 3 we understand now that the extent of the assets being sold may 4 be substantially limited such that it might not apply at all to 5 the issues raised by my client. And we just want to make sure

6 that there is adequate notice if, in fact, the platform 7 business is reduced and will no longer include whole portions 8 of the business, that that be formally noticed with enough time 9 so the parties do not have to unnecessarily appear or have co10 counsel appear. 11 MS. UHLAND: Two things, Your Honor. First, I do

12 apologize on the timing on the continuance.

The debtors and

13 the Creditors Committee were in discussions until late 14 yesterday on this matter and still trying to resolve those 15 issues. 16 With respect to both of the prior objections, they

17 may be rendered moot to the extent the debtors scaled back what 18 they’re proposing to sell. We will endeavor by, say, 9 a.m.

19 eastern time Monday morning to identify if there’s a reduction 20 in the assets for sale, to possibly avoid both of those 21 objections. 22 THE COURT: All right. I am going to take a break Any notion in terms of timing

23 before we begin the next matter. 24 what you anticipate? 25 MS. UHLAND:

How many witnesses do you have and -One witness and argument and then the

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104 1 United States Trustee objection. I would like to put on the

2 record the results of my conversations with the Creditors 3 Committee so we can provide the Court with an update on that 4 before we break. And then I don’t know -- I would assume that

5 a half an hour would be adequate for that portion of the 6 hearing. 7 MR. MCMAHON: Your Honor, I’d be surprised if any

8 cross examination that we would have would take more than three 9 to five minutes. 10 11 THE COURT: MS. UHLAND: All right. Thank you.

Your Honor, with respect to the prior --

12 we sort have sort of a temporal issue with the Creditors 13 Committee and a ranking issue with the United States Trustee 14 with respect to this matter. And our prior entered order

15 indicated an order with respect to the payments in April for 16 the pre-petition period. We believe we have an agreement with

17 the Creditors Committee with respect to the April payments, the 18 payments for the April period to be paid in May under certain 19 conditions similar to those that we agreed to with respect to 20 the March payments paid in April. 21 That is part of a global agreement that we’re -- or

22 settlement that we’re working on them with respect to both the 23 sell of the loan origination platform and with respect to that 24 compensation matter. We would hope to submit -- we had hoped

25 to submit both agreed orders on the loan origination and J&J COURT TRANSCRIBERS, INC.

105 1 employee matter, but if there’s pending objections to the loan 2 origination, you know, we’ll be submitting, you know, a 3 proposed order and hopefully an agreed order on the employee 4 matter, submitting that probably before the hearing on next 5 Tuesday. 6 7 8 THE COURT: MS. UHLAND: MS. FATELL: Okay. Is that accurate? Good afternoon, Your Honor. Bonnie

9 Fatell for the Creditors Committee. 10 out a little bit.

Just wanted to round that

The piece that is being asked to be paid to

11 the employees goes to the employees who otherwise would have 12 been earning commissions if they could originate loans during 13 this time period. And we appreciate that it’s important to

14 keep those people in place so that we can try and maximize the 15 value for the loan origination platform. We’re also balancing

16 that with the -- all of the costs to run that platform or keep 17 it in place in the event -- until the sale process, but also 18 trying to determine if, in fact, the sale process will be 19 successful and maximize value. 20 21 together. So, we’re balancing those. We’re trying to tie that

Preliminarily the Committee has agreed to the

22 payment subject to our final agreement on all of the bid 23 procedures. 24 25 THE COURT: MS. UHLAND: All right. Anything else before break?

That’s it, Your Honor, for now.

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106 1 2 at 1:15? 3 4 5 recess. 6 7 MS. UHLAND: (Recess) Good afternoon, Your Honor. To MS. UHLAND: THE COURT: That sounds appropriate, Your Honor. All right. The court will stand in THE COURT: Okay. I’m thinking we should reconvene

8 reiterate the matter we’re addressing today with respect to the 9 employee motion is the following. The debtors had filed a

10 motion at the commencement of the case with respect to their 11 pre-petition wages and in that regard, requested that certain 12 pre-petition wages be paid in accordance with the debtors 13 adopted policy to address the commission replacements program. 14 At the conclusion of the hearing, the Court left open

15 to address at a later date, which we will address today, the 16 payments of those pre-petition wages with respect to, as it 17 turns out, six individuals. In essence, the Court ruled that

18 those were the title of senior vice-president or higher should 19 be -- we want to -- you know, a further factual showing with 20 respect to the compliance of the debtors’ proposal with Section 21 503 of the Bankruptcy Code. 22 THE COURT: Well, strictly speaking, there were two And I don’t -- I think what I

23 individuals identified before.

24 said was I deny without prejudice, at least the request with 25 respect to those individuals. So it’s not six not two.

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107 1 2 3 MS. UHLAND: THE COURT: MS. UHLAND: Yes. Okay. There was the -- we knew for certain

4 that the, quote, unquote, highest ranking were one senior vice5 president who is in charge -- the senior vice-president for the 6 debtors’ consumer direct business and the executive vice7 president in charge of the wholesale production. In addition,

8 there are four senior vice-presidents who report to the 9 executive vice-president. So there are a total of six as the

10 total number of senior -- so five senior vice-presidents, one 11 executive vice-president in the program. 12 13 THE COURT: MS. UHLAND: Okay. Your Honor, what we would like to do

14 today is first to discuss the nature of those parties 15 participation of the effect of the current plan, as I said, who 16 named a wholesale retention plan by the debtors’ pre-petition, 17 although we do not believe that it is a retention plan. And to

18 walk through the mechanics as to who those plans apply to the 19 compensation for these six individuals who have paid on a 20 quarterly basis with respect to the payments covered by -- that 21 we are discussing here. 22 And second, walk through the factual showing with

23 respect to what those employees, in fact -- their legal or 24 their assigned duties in the corporation and contract those 25 with the assigned duties and responsibilities of others who we J&J COURT TRANSCRIBERS, INC.

108 1 admit are officers and insiders of the corporation. 2 THE COURT: Okay. Before you do that, let me just

3 reconfirm with the U.S. Trustee the extent of her objection. 4 If I recall correctly, was this a “I’ll put the debtor to its 5 proofs” objection or is it more specific than that, Mr. 6 McMahon? 7 MR. MCMAHON: Your Honor, Joseph McMahon. Consistent

8 with the position that we talked at the last hearing, we 9 believe that these payments fall within the ambient of 503(c) 10 meaning that they do have primarily a retentive purpose. 11 12 THE COURT: So (c)(1)? That’s correct. And also, again,

MR. MCMAHON:

13 consistent with the position that we took at the last hearing, 14 these persons constitute officers and by extension, insiders as 15 such that they would not be eligible to be paid under that 16 subsection. 17 THE COURT: All right. Thank you. All right. Am I

18 to understand that it’s the debtors’ position that these are 19 not 503(c)(1) payments? 20 MS. UHLAND: Yes, our position is they are neither

21 insiders -- the effected individuals are neither insiders nor 22 are they retention payments. 23 THE COURT: And if I were to find that the payments

24 were subject to the 503(c)(1) standards, is it the debtors’ 25 position -- well, I’ll say it another way. I take it it’s the

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109 1 debtors’ position that it could not been those standard? 2 haven’t said that, but I’m supposing that to be the case. 3 am I wrong about that? 4 MS. UHLAND: Your Honor, I do not believe we can meet You Or

5 the standards, particularly with respect to all the individuals 6 with respect (c)(1)(A). 7 8 THE COURT: MS. UHLAND: Okay. Proceed.

Your Honor, prior to my proffer, I’d

9 like to walk through, just because I think it helps to frame 10 it, the -- revisit the terms of these plans and then I’ll 11 support that in the proffer. 12 The six individuals at issue, as we discussed in

13 prior hearings on this, receive substantial portion of their 14 payment in discretionary or bonus compensation. Partly, their

15 -- these bonus or quarterly payments that they receive are 4 to 16 500 percent of the base salary that they’re paid. 17 With respect to these individuals, their quarterly

18 payment is targeted each quarter and they are paid in recent 19 months, or recent years, have received 90 to approximately 120 20 percent of their target bonus based on discreet performance 21 criteria. 22 In prior quarters, the way that this performance They were

23 criteria payment was calculated was as follows.

24 established, as I said, fixed criteria based on quantifiable 25 factors prior to the quarter. And after the close of the

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110 1 fiscal quarter, the debtors would finish their financial 2 reconciliations and pay the appropriate amount with a time lag 3 as appropriate for the performance of the prior quarter. 4 When the debtors ceased loan origination in -- on

5 March 10th, they were 10 weeks into their 13 week fiscal 6 quarter. And the debtors determined with respect to these six

7 individuals, in lieu of a proposal to have the percentage 8 determined after the close of the quarter, since many of the 9 performance criteria were no long applicable, that in 10 accordance with their -- they made a policy determination to 11 fix, for those -- these six individuals, their compensation at 12 75 percent of their target bonus. This was in effect the

13 temporal proration of the time period where the debtors were 14 originating loans during the fiscal quarter. 15 The payment, timing of the payment based on prior In other words, the payment

16 experience was to be consistent.

17 was not going to be received for the quarter until after the 18 close of the fiscal quarter. This has created the issue, and

19 why it was included in our pre-petition motion, is that we were 20 seeking post-petition to pay for wages earned pre-petition. 21 But in essence, again, with respect to these

22 employees, the sole impact of the, quote, unquote, retention 23 plan was an incorporated sentence in there that stated with 24 respect to these quarterly employees -- or the quarterly 25 bonused employees are that they would get this determination of J&J COURT TRANSCRIBERS, INC.

111 1 the 75 percent in advance of the close of the fiscal quarter. 2 Based on that understanding and factual underpinning

3 of what this policy decision was, we do not believe that this 4 short-term -- if it could be called an incentive plan or policy 5 decision is something that falls within the retention programs 6 that are covered by Section 503. And we think that Judge’s --

7 Judge Gross’s decision in Global Home Products, which drew a 8 distinction between 503 plans and ordinary incentive plans or 9 compensation plans that went into the debtors -- by the debtors 10 pre-petition provides guidance here. 11 THE COURT: But isn’t -- I mean, haven’t you just

12 described an adjustment that was made out of the ordinary 13 course of business while -- even if everyone were to concede 14 that -- I’m not asking the U.S. Trustee to acknowledge this, 15 but even if we were to concede that such plans could exist in 16 the ordinary course and would not be subject to 503(c) scrutiny 17 or standards, haven’t you just described a situation in which 18 it’s absolutely outside the ordinary course? 19 MS. UHLAND: I think setting compensation policy to

20 address performance is not outside the ordinary course of the 21 debtors business. 22 THE COURT: Not generically. That’s -- we’ll concede But even given

23 that point for purposes of this discussion. 24 that, that’s not what happened here. 25 MS. UHLAND:

Well, and then I suppose further, Your

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112 1 Honor, what I would state is if the policies had an existing 2 provision that expressed -- that addressed the proration issue 3 prior to the decision to adopt such a proration -- you know, if 4 the debtors had thought ahead, that that could have been 5 incorporated. But the plan was silent with respect to what to

6 do if there was an appropriate determination under certain 7 circumstances that, you know, perhaps because of what was going 8 on in the company’s business, you should prorate. 9 THE COURT: Well, let’s talk about that for a minute.

10 And I know -- I’m pretty sure at the last hearing we went 11 through this time line and I’m sure it’s in the first day 12 affidavits. But among the pre-petition events, like the

13 company acknowledging it needed to restate earnings and a 14 commencement of an FCC investigation and subpoenaed by the U.S. 15 Attorney’s office and the commencement of class actions, give 16 me just the general time frames during which they occurred. 17 MS. UHLAND: Your Honor, so the compensation we’re The debtors

18 talking about is for January, February and March.

19 announced the restatement on February 7th and that had, you 20 know, some disruption. That caused civil litigation. On March

21 2nd, the debtors announced the FCC investigation and the 22 further restatement. And the debtors, on -- trying to think it

23 was -- I believe it was March 12th is when the debtors ceased 24 originating loans and thereafter again, so 10 weeks into this 25 13-week cycle, it as at that point that the debtors adopted the J&J COURT TRANSCRIBERS, INC.

113 1 plan with respect to the commission-based account executives 2 that we talked about before, constructing a commission 3 replacement. But with respect to these employees, again, it

4 was simply a -- in fact, a reduction in fixing other 5 performance targets for the balance of the fiscal quarter. 6 THE COURT: Now, the restatement was announced on

7 February 7th.

And they’re -- understand the question I’m about

8 -- the answer to the question I’m about to ask may have other 9 ramifications. And if you choose, at least today, not to But when did the company become

10 answer it, I will understand.

11 aware that it was going to have to restate earnings for those 12 three quarters? 13 MS. UHLAND: Unfortunately I don’t know the answer to

14 that question, so. 15 16 7th. THE COURT: It had to be sometime prior to February

Maybe it was a day, maybe it was a month, maybe it was I don’t know. But I guess my point is, it seems

17 longer.

18 likely to me that during virtually the entire period that this 19 compensation right would have accrued, nothing was in the 20 ordinary course. 21 22 MS. UHLAND: THE COURT: Well, Your Honor -Maybe that’s an overstatement, but you

23 understand what I mean by that. 24 MS. UHLAND: I think that if -- if the debtors

25 restatement was at the financial level which had to do with J&J COURT TRANSCRIBERS, INC.

114 1 the, what I’ll call the capital markets side of the business, 2 what we’re talking about here was a plan to keep the loan 3 origination platform operating and then we’re talking about now 4 with these six individuals are the managers of the account 5 executives that deal with the wholesale loan origination 6 platform. 7 So that, you know, one, I mean, these individuals

8 certainly would have had no knowledge of anything with respect 9 to the restatement before February 2nd. And their -- what

10 their performance criteria was in the loan origination aspect 11 of this with respect to the individual borrowers and brokers 12 with whom they’re working are not connected to their 13 performance criteria. 14 15 16 THE COURT: MS. UHLAND: THE COURT: Well -To the -- in the restatement issues. That’s a factor that might be important

17 to me, but I agree it’s different from the issue that I was 18 raising. And let’s assume for the moment it’s true. It

19 doesn’t mean the company was operating in the ordinary course. 20 I mean, things developed rapidly as they continue to do. And I

21 just wonder whether an adjustment that’s made or a plan that’s 22 adopted, while the things that were going on here were going 23 on, could under these circumstances and maybe not ever under 24 any circumstances be considered ordinary course. 25 point. J&J COURT TRANSCRIBERS, INC. That’s my

115 1 MS. UHLAND: Well, Your Honor, we -- I think that I don’t think it’s any I think the question

2 there’s two criteria in 503(c).

3 transaction outside the ordinary course.

4 is in the -- again, in the Global Home Products case, the 5 question is was the compensation, even if different than pre6 extraordinary circumstances compensation, was it primarily for 7 retention. And one of the factors considered, I mean, was it

8 a, quote, unquote, pay to se (phonetic). 9 And I think in this case, even though, as we’ve

10 discussed, not paying people at all certainly has the opposite 11 of retention effect, a dispelling effect, perhaps, on 12 employees. That if it is a plan or a policy that is, you know,

13 substantially identical to the plan previously used and adopted 14 and that it was not purely to induce the individuals to remain 15 through the emergence from bankruptcy, or in our situation, 16 through the emergence of their, you know, then -- at the time 17 they didn’t think they’d be going into bankruptcy, I mean, just 18 a difficult period -- that it is not one that is within the 19 scope of 503(c). And that, therefore, because it was simply a

20 modification of their compensation system to address the 21 circumstances they were in, to be fair to the employees in 22 light of the changed business, that that does not propel it 23 into a retention plan. 24 THE COURT: Well, let me be as precise as I can. I

25 guess initially what I want to do is press the debtor, well, so J&J COURT TRANSCRIBERS, INC.

116 1 that I can focus in on what standard I’m suppose to apply. 2 that follows from what section provides the basis for the 3 relief that’s being requested. And I guess what I’m, at least And

4 preliminarily thinking is that 363 just doesn’t get you there 5 because it’s outside of the ordinary course. 6 Now, that doesn’t mean that it limits you to relief I don’t know, but

7 under 503(c)(1) and maybe it’s 503(c)(3).

8 that’s -- to be clear, that seems to be the widest path for me 9 right now. 10 MS. UHLAND: Well, the payments, I mean, I believe

11 that in our initial motion is really made under 105. 12 THE COURT: Well, it was and I think I expressed some

13 scepticism at the time about that as a basis even given Maurama 14 (phonetic) and what the Supreme Court says 105 can be used for, 15 at least in that context. 16 MS. UHLAND: Well, I suppose, Your Honor, if 503

17 doesn’t apply and Section 363 does apply and it is out of the 18 ordinary course of business, then we would submit that it does 19 meet the standards of 363 because it’s within the debtors’ 20 business judgment in the -- and we’ve conferred with the 21 Creditors Committee to make these payments and have their 22 support for making the payments, that it’s in the best interest 23 of the estate in order to do so. 24 THE COURT: Well, it’s outside the ordinary course. Now, you may argue that, well,

25 It doesn’t fall into 503(c)(3).

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117 1 okay, it doesn’t matter because it’s business judgment standard 2 at least in your view in any event. 3 something different. I think maybe it means

Haven’t yet come to a view of how much

4 different because in terms of those plans which I’ve been asked 5 to approve so far under this new provision, you know, I found, 6 at least what I think, was necessary on 503(c)(3) plans to get 7 the relief there. 8 Or not, as the case may be. I understand your position and I’m

But, okay.

9 prepared to hear whatever else you’d like submit in support of 10 the relief. 11 MS. UHLAND: Again, Your Honor, I mean, we believe

12 since the 75 percent would be effectively a temporal proration 13 of the amount of time that would be provided by the plan, it 14 was, in effect, with respect to these individuals that -- a 15 policy modification rather than adoption of a plan that we’re 16 out of 503(c) and that it -- you know, as a pre-petition plan, 17 would be exempt from 363 if we call it an assumption of a -- or 18 confirmation post-petition of a pre-petition transaction, that 19 we would submit we address also 363. 20 THE COURT: But see, even if you wanted to, as you

21 said initially when we talked about this, even if you wanted me 22 to use a critical vendor type of analysis, isn’t that analysis 23 geared to keep vendors selling to the company? 24 that retention? 25 503(c)(1)? I mean, isn’t

And if it is, aren’t you dragged back into

I’m not -J&J COURT TRANSCRIBERS, INC.

118 1 2 MS. UHLAND: THE COURT: I mean, I -I’m not trying to figure out ways not to

3 grant the relief. 4 5 MS. UHLAND: THE COURT: It -I’m trying to be true to what Congress

6 wanted us to do. 7 MS. UHLAND: It is a -- I think that if we were

8 trying to say that true insiders -- and, like I say, I’m going 9 to go forward and discuss the insider issue -- that, you know, 10 I think that there could be, if someone was trying to piece 11 together 105 and 363 to circumvent with respect to true 12 insiders, I could see, you know, that those -- that 13 intersection of things could be seen as a circumvention. But

14 here, and it may be primarily in reliance on the second point 15 here, I don’t think there is a circumvention. 16 So, like I said, our primary -- and I think this is We want -- we raise this issue on the

17 sort of a -- the focus.

18 503 last time and again, I think one of our challenges has been 19 the nomenclature associated with the plan that raises the 20 question on the purpose. But, you know, our primary issue that

21 we wanted to discuss here today was the fact that we do not 22 believe that notwithstanding these titles, that these 23 individuals fall within the definition of insiders with respect 24 to 503(c). 25 We do understand that within the definition of J&J COURT TRANSCRIBERS, INC.

119 1 insider, it includes a quote, unquote, officer of the debtor. 2 But in the Court’s construing that definition, initially with 3 respect to the preference litigation and more recently in the 4 CEP Holdings, LLC case that was cited, it’s out of the Northern 5 District of Ohio. 6 LEXUS 3305. I have a Lexus cite for you. It’s 2006

The court adopted a similar rubric for determining

7 insider status with respect to 503. 8 9 10 11 MS. UHLAND: THE COURT: MS. UHLAND: Who was the judge, do you know? It’s a three-named judge. (Pause) Thanks. It’s Marilyn Shea-Stonum. In

12 connection with the preference analysis which was the primary 13 focus of the insider statute before the amendments, the courts 14 considered the closeness between the transferee and the debtor 15 and the degree of controller influence that, in that case, the 16 transferee would have exerted over the debtor and whether the 17 transaction was at arms length. 18 In connection with the analysis under 503, and

19 applying that similar rubric, the court in the CEP Holdings 20 matters indicated that to determine whether a person is a 21 person in control of the debtor or an insider should again 22 focus on the specific transaction at issue. In other words, it

23 should be, at least in part, considered whether the person is 24 in control over this -- the proposed plan, the compensation or 25 the formulation or control or input of the proposed J&J COURT TRANSCRIBERS, INC.

120 1 compensation or plan that’s at issue here. And then employees

2 who do not exert such control should not be considered insiders 3 of the debtor. 4 THE COURT: Sounds like a very limited definition of Don’t you agree?

5 insider for this purpose. 6 MS. UHLAND:

I would agree that is limited and I

7 think there are additional factors that should be considered. 8 Clearly, one of the factors that the courts are considered is 9 the title and the bylaws. But I think in addition to sort of

10 the narrow question of whether they had control of their 11 compensation, or the particular compensation and transaction at 12 issue, is the general control that these individuals have with 13 respect to the overall enterprise. 14 And we have prepared our proffer today to discuss the

15 roles of these individuals which are really focused on 16 managerial roles with respect to the loan origination platform 17 individuals, that they do not have ability to set corporate 18 policy with respect to New Century Mortgage, they do not 19 control the financial decisions of New Century Mortgage, nor do 20 they control their own compensation decisions. 21 So the -- I -- you know, our position is consistent

22 with this -- the CEP Holdings case which we’re citing for this 23 sort of more comprehensive view of assessing whether a named 24 officer is an insider, citing the NNI Systems case from the 25 District of Columbia, that the considerations include not only J&J COURT TRANSCRIBERS, INC.

121 1 the bylaws, but the function and responsibility of the 2 individuals with a focus on whether the individual, in 3 addition, had any control over the transaction at issue. 4 So we would propose, in the testimony we’re about to

5 proffer, to explain that the individuals that we are seeking 6 the approval for today are not insiders because, 7 notwithstanding their title, and notwithstanding the 8 possibility, although not the certainty, that they were, in 9 effect, board-appointed because we don’t have the specific 10 resolutions for them, that we acknowledge it is a possibility 11 that there exists a board resolution appointing them to their 12 title, that they are not insiders by virtue of the limited 13 scope and focus of their job responsibilities in contrast with 14 the individuals that we do put forth as the insiders of 15 Mortgage and are not seeking to have these type of payments or 16 any other type of 503 payments made with respect to in this 17 case. 18 19 THE COURT: MS. UHLAND: You may proceed. Your Honor, I would like to proffer the Mr. Meola’s here in the courtroom.

20 testimony of Anthony Meola. 21

Anthony Meola joined -- if called to testify, would He’d testify with respect to his current That he joined New Century

22 testify as follows.

23 position and background as follows.

24 in May 2006 as executive vice-president for production and he 25 serves in that capacity at New Century Financial Corporation J&J COURT TRANSCRIBERS, INC.

122 1 and New Century Mortgage Corporation. That he is responsible

2 for managing and expanding the company’s national production 3 franchise, increasing productivity to enhance competitions, and 4 that his job responsibilities include setting policies with 5 respect to pricing, deployment of capital resources and 6 developing marketing strategies. 7 Mr. Meola would further testify that he is an active

8 participant of the executive management committee of NCF, the 9 parent company, which consists of the officers of NCF 10 implementing board policy and managing operating of 11 subsidiaries. He also sits on the financial committee, the

12 asset liability committee and the pricing committee and is a 13 voting member setting policy and governing. 14 He is the EVP of wholesale production and the six

15 individuals that we’re going to be discussing, the executive 16 vice-president in charge of wholesale production reports to Mr. 17 Meola. The senior vice-president in charge of consumer direct And the remaining four division managers

18 reports to Mr. Meola.

19 that have the senior vice-president title report to the 20 executive vice-president of wholesale. 21 Prior to joining New Century, Mr. Meola was executive

22 vice-president of Mortgage Banking Production for Washington 23 Mutual where he was responsible for directing retail, wholesale 24 and lending operations in the U.S. Mr. Meola has more than 19

25 years experience at the senior management level in the mortgage J&J COURT TRANSCRIBERS, INC.

123 1 industry. 2 He joined Washington Mutual in 2000 as the head of

3 loan servicing for the home loans, insurance and services 4 group. Previously, Mr. Meola was the chief operations officer

5 at PMC Mortgage responsible for all customer acquisitions, in 6 addition to marketing and service for all customer acquisition 7 channels. 8 Prior to joining PMC, he spent seven years at Citi

9 Corp Mortgage as a senior vice-president of mortgage 10 operations. 11 Mr. Meola is a member of the Mortgage Banker

12 Association, Residential Board of Governors, Chicago Public 13 Education Fund and has a Bachelor of Science degree from 14 Rutgers University. 15 Mr. Meola testified as follows with respect to the New Century

16 management of New Century Mortgage Corporation.

17 Mortgage Corporation is a wholly-owned subsidiary of NCF; that 18 it is managed by the executive management committee of NCF 19 which ultimately reports to the Board of Directors. 20 With respect to the compensation of all officers or

21 all individuals with titles of vice-president and above, both 22 at national New Century Mortgage Corporation and NCF, their 23 compensation is ultimately set by the compensation committee of 24 the Board of Directors of NCF. 25 Further, with respect to the loan origination J&J COURT TRANSCRIBERS, INC.

124 1 business of New Century Mortgage Corporation, which is one of 2 the businesses of New Century Mortgage Corporation which also 3 includes the servicing business which is not at issue today, he 4 would testify that the following individuals exert primary 5 operating control over the loan origination business: Brad

6 Morrice who is vice-president of NCF, he is CEO and president 7 of both NCF and New Century Mortgage Corp; Taj Bindra who is 8 executive vice-president and chief financial officer of both 9 New Century Mortgage Corporation and New Century Financial; 10 Robert Lambert who is the senior vice-president of leadership 11 and organizational development, effectively in charge of all 12 human resources matters at both New Century Mortgage 13 Corporation and New Century Financial; Joseph Eckroth, 14 executive vice-president, chief operating officer and chief 15 information officer of both New Century Mortgage Corporation 16 and New Century Financial; as well as himself, Anthony Meula 17 who holds the positions of executive vice-president of 18 production at both New Century Financial and New Century 19 Mortgage Corporation. 20 With respect to the production business, he would

21 note that he is primarily responsible for in addition to -- in 22 essence managing the national franchise, that he is responsible 23 for setting the pricing and policy and deploying the capital 24 and making the expenditure decisions for the wholesale 25 division; and that he is responsible for recommending J&J COURT TRANSCRIBERS, INC.

125 1 compensation commissions decisions to the compensation 2 committee of the Board with respect to the individuals, the 3 subject of this plan. 4 With respect to the six individuals that we’re

5 discussing today -6 THE COURT: And who are they? Forgive me for the

7 interruption. 8 MS. UHLAND: They are Steven Lemon, executive vice-

9 president, wholesale production; Ralph Melbourne (phonetic), 10 senior vice-president, consumer direct division; and Rick 11 Gordano (phonetic), Phil Garcia, Steven Holland and John 12 Warnock (phonetic) who hold the titles senior vice-presidents, 13 wholesale, common division managers. 14 He would testify with respect to this group of six

15 individuals that they are paid with a quarterly bonus based on 16 performance that is 4-500 percent of their base salary; that in 17 recent periods, these individuals earned in a range of 95-100 18 percent of the target bonus based on the specific performance 19 matrix and that these performance calculations are typically 20 done and the bonuses paid after the close of the fiscal 21 quarters. 22 Specifically, with respect to the responsibilities of With respect

23 these individuals, he would testify as follows.

24 to Mr. Steven Lemon, the executive vice-president of wholesale 25 production, that his job would include hiring, evaluating and J&J COURT TRANSCRIBERS, INC.

126 1 managing employees in his sales force; that he is responsible 2 for recommending pricing strategies to Mr. Meola and executing 3 marketing other programs as well as their evaluation and 4 measurement and the reporting of the same to senior management 5 through Mr. Meola. 6 He would indicate that prior to the cessation of the

7 loan originations, that the lions share of the compensation was 8 earned through his quarterly bonus and that the amounts earned 9 or weighted 80 percent based on the performance of the 10 wholesale division and a portion based on the performance of 11 New Century Mortgage Corporation as a whole; and that a minimum 12 performance threshold was required to receive and earn the 13 payout. 14 He would further indicate that since the second week

15 of March when the debtor ceased funding loans, that the minimum 16 threshold necessary to calculate the amount for the quarter 17 could not be determined. The debtors did not have a policy of

18 prorating this compensation and, instead, instituted the 19 formula of the 75 percent for the first quarter to ensure that 20 Mr. Lemon would be paid for the amount he otherwise earned, but 21 for the cessation of the loan origination. 22 He would further indicate that Mr. Lemon does not

23 exercise overall authority with respect to any corporate 24 decision of New Century Mortgage Corporation; that he is not in 25 a position to exert undue influence over the debtor’s corporate J&J COURT TRANSCRIBERS, INC.

127 1 decision regarding payment of claims or payment of 2 compensation; and that he had no input in or negotiation of the 3 retention plan of the amount of compensation that he would be 4 paid pursuant to the revised policy. 5 With respect to Mr. Ralph Melbourne, the senior vice-

6 president of consumer direct, he would testify that his 7 responsibilities are as follows. That Mr. Melbourne was in --

8 retained to improve and increase New Century’s direct to 9 consumer telephone and internet lending segments; that his 10 responsibilities including preparing business plans to be 11 submitted to Mr. Meola and thereafter the executive committee 12 to increase -- with the goal of increasing market share and 13 loan origination volume through the consumer direct business; 14 that he is responsible for hiring and firing employees in the 15 telephone operation centers as well as executing marketing 16 business development plans. 17 That Mr. Melbourne -- he would further testify that

18 Mr. Melbourne reports directly to Mr. Meola and that he does 19 not have authority to implement strategic directions with 20 respect to business plans, but can make recommendations to the 21 executive management committee through Mr. Meola. 22 He would testify that prior to the second week of

23 March, that the compensation for the bonus component -- or the 24 quarterly component of Mr. Melbourne’s compensation, it was 25 rated 70 percent based on the performance of the consumer J&J COURT TRANSCRIBERS, INC.

128 1 direct division and 30 percent based on the performance of 2 Mortgage as a whole. 3 He would further testify that when the loan

4 origination ceased in the second week of March, that there was 5 not a way to determine the minimum performance threshold for 6 that quarter and since the debtors did not have a policy for 7 prorating plans, they instituted the policy to set the bonus at 8 75 percent of targets to ensure that employees would be paid 9 the amounts they otherwise would have earned but for the 10 cessation of platform. 11 He would testify that Mr. Melbourne does not have

12 authority to set overall corporate policy -- that he does not 13 exercise overall authority for any corporate decisions; that he 14 does not -- is not in a position to execute -- to exert undue 15 influence over the corporate decision regarding claims; and had 16 no input in the negotiation or the amount of compensation that 17 he would receive in accordance with the changed debtor’s 18 policy. 19 With respect to Rick Gordano, Phil Garcia, Steven

20 Holland and John Warnock, they hold the titles of senior vice21 president, division managers; their responsibilities are as 22 follows. The division manage, recommend market prices and

23 strategies and recommend credit exceptions to Mr. Lemon, 24 executive vice-president of the wholesale production. These

25 individuals report directly to Mr. Lemon, executive viceJ&J COURT TRANSCRIBERS, INC.

129 1 president of wholesale production. 2 Each of the division manager is located -- is

3 assigned a territory and in their position, they are located 4 within a field typically operating in the largest operating 5 center in their assigned geographic territory. 6 The division managers do not have final decision

7 making authority with respect to policy changes, but again, can 8 make recommendations to Mr. Lemon who can, in turn, make 9 recommendations to Mr. Meola. 10 The quarterly compensation for these individuals was

11 based on a quantified program that is weighed on -- that 12 weighed a number of factors and tended to measure performance 13 of the wholesale business including volumes of loans, rate 14 sheet deviation, loans funded through operations, payment 15 defaults and pretext profit. 16 When the debtors stopped funding loans at the

17 beginning of March 2007, these minimum performance thresholds 18 necessary to calculate the amounts for the entire quarter, 19 while they could potentially be prorated, the plan did not 20 provide for this, so the amounts could not be determined. 21 At that time, the debtors adopted the policy of

22 prorating those payments to provide for 75 percent of payment 23 of the target for the 10 weeks of the quarter prior to the 24 shutdown of the loan origination platform to ensure that those 25 employees would be paid the amounts they otherwise earned but J&J COURT TRANSCRIBERS, INC.

130 1 for the cessation of the platform. 2 With respect to these individuals, Mr. Meola would

3 testify that their compensation is nearly identical to the 4 compensation they would have received had the incentive plans 5 been, or the prior plans with respect to their bonuses been in 6 effect, that the compensation awarded to them is reasonable, 7 typical and common industry and that these division managers 8 are not active in setting overall corporate policy; that these 9 division managers do not exercise overall authority with 10 respect to the debtors corporate decisions; that these division 11 managers are not in a position to exert undue influence over 12 the debtors corporate decision-making regarding payment of 13 claims and that they had no input on the negotiation of the 14 revised policy with respect to their payment or the amount of 15 compensation that they would receive. 16 With respect to all the amounts sought to be paid in

17 connection with the request today, Mr. Meola would testify that 18 the compensation that we’re describing for the first quarter 19 combined with the other compensation that’s previously been 20 paid to these individuals is reasonable, typical and common in 21 the industry. And that all payments under the proposed to be And that that assessment of

22 made are within market norms.

23 market compensation is based on his extensive experience with 24 the mortgage industry. 25 Your Honor, that would conclude my proffer of Mr. J&J COURT TRANSCRIBERS, INC.

131 1 Meola. 2 3 THE COURT: Anyone care to examine Mr. Meola? Your Honor, can I confer with debtors’

MR. MCMAHON:

4 counsel for a minute? 5 6 7 MS. UHLAND: THE COURT: Yeah. (Pause) Your Honor, in -- at the prior hearing, We

8 we did not -- we had only the New Century Financial bylaws. 9 now have the New Century Mortgage Corporation bylaws and the 10 U.S. Trustee’s asked that we submit those to -- into the 11 record. 12 13 MR. MCMAHON: MS. UHLAND: That is correct. And we are willing to do that.

They --

14 slightly different wording, but a similar provision with 15 respect to officers as the New Century Financial bylaws. 16 These bylaws provide that the corporation may We were not able

17 designate officers pursuant to resolutions.

18 to locate the resolutions appointing these individuals as 19 officers. We believe it is corporate policy to periodically

20 provide cleanup annual resolutions that are submitted to the 21 Board of New Century Mortgage Corporation, all of whom are 22 officers of New Century Financial Corporation to submit a 23 cleanup resolution with respect to officer appointments. 24 There are two recent hires, or those -- one about a

25 year and one less than a year, within the individuals J&J COURT TRANSCRIBERS, INC.

132 1 described. We think it is -- we will stipulate, based on our

2 understanding of corporate practice, that there were 3 resolutions appointing the four. The two recent hires, we were

4 -- we don’t know that any resolutions have yet been adopted by 5 the Board of Mortgage to appoint them as officers. 6 7 8 9 10 MS. UHLAND: THE COURT: THE COURT: MS. UHLAND: And so which four are we talking about? Let me confirm with Mr. Meola. (Pause) Ralph Melbourne and Rick Gordano. And they’re the ones that don’t have

11 resolutions? 12 13 14

Or you don’t know where their resolutions are? That’s correct. Okay. We will stipulate even though we have

MS. UHLAND: THE COURT: MS. UHLAND:

15 not identified that resolutions were likely adopted, or were 16 adopted -- for the purpose of the record today, were adopted 17 for the other four. 18 19 20 THE COURT: MS. UHLAND: THE COURT: Okay. Should I hand up the -We’ll mark it D-1 which will be admitted

21 without objection. 22 23

Thank you. (Pause)

MR. MCMAHON:

Your Honor, with that addition to Mr.

24 Meola’s proffer, we do not wish to cross examine. 25 THE COURT: Does anyone else wish to examine Mr.

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Meola - Cross/Court 1 Meola? 2 Well, I do. THE CLERK: If you would come forward, sir.

133

Would you raise your right hand, please

3 your left on the Bible. 4 5 ANTHONY MEOLA, DEBTOR’S WITNESS, SWORN THE CLERK: For the record, please state your full

6 name and spell your last. 7 8 9 10 11 BY THE COURT: 12 Q Mr. Meola, to the extent you know, how is it determined And by THE WITNESS: THE CLERK: Anthony Thomas, M-e-o-l-a.

You may be seated. Thank you. CROSS EXAMINATION

THE WITNESS:

13 who is called what in the way of title at the company? 14 that, I mean the combined companies. 15 A

Your Honor, there be two ways that we establish title.

16 One is one that Your Honor is most familiar with in 17 corporations, Section 16, insiders, those types of folks which 18 I would call, you know, executives, director types. 19 In the sales organization, in the field sales

20 organization, there are titles of SVP, senior vice-president, 21 executive vice-president, vice-president that are what are 22 commonly referred to in the business as business card titles so 23 that when they represent the company to clients, they’re 24 represented at a fairly high level in the clients’ eyes and 25 presented well for the organization. J&J COURT TRANSCRIBERS, INC.

Meola - Redirect/Uhland 1 So there are two basic ways. There’s our sales

134

2 organization that has a set of titles and then the remainder of 3 the organization that has the more familiar corporate titles. 4 5 6 7 BY MS. UHLAND: 8 Q Would you describe the six individuals we’ve discussed THE COURT: MS. UHLAND: Anyone like to follow up? Just briefly, Your Honor. REDIRECT EXAMINATION

9 today as members of the sales organization? 10 A 11 Q Yes. And therefore -- and what was the purpose for assigning

12 them the titles that they have? 13 A As I told the Judge, the purpose there is in the field and The leaders of those organizations

14 for recruiting purposes.

15 carry those titles in order to attract the top producers, to 16 meet with clients and the like. 17 18 19 20 21 22 23 THE COURT: MS. UHLAND: THE COURT: Your Honor, I have no further. All right. Mr. McMahon, any questions?

MR. MCMAHON: THE COURT:

No, Your Honor.

Thank you, sir, you may step down. Thank you. (Witness excused) All right. Anything further in support

THE WITNESS:

24 of the motion? 25 MS. UHLAND: No, Your Honor.

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135 1 2 THE COURT: All right. Mr. McMahon. Talk to me.

MR. MCMAHON:

I will, Your Honor, as best as I can.

3 Your Honor, I guess I should top at the -- start at the top 4 which is this issue of whether even under Section 503(c)(1), 5 which is a point the debtor’s counsel raised and you discussed 6 with debtor’s counsel, the ordinary course label appears no one 7 -- nowhere in the explicit text of Section 503(c)(1). And,

8 Your Honor, the distinction between Section 363 and 503(c) is 9 somehow -- one would cover ordinary course things and not 10 ordinary course things isn’t always so clear. 11 When you look at 503(b), wages, salaries and

12 commissions for services rendered after the commencement of the 13 case, 503(b)(1)(A)(1), now that’s a thing that’s typically paid 14 by the debtor in the ordinary course without a court order. 15 Really what we need to focus on here is the plain language in 16 Section 503(c) and the fact that it deals with, broadly, 17 transfers made to or obligations incurred for the benefit of an 18 insider. 19 Now, going back to a topic that we discussed at the

20 last hearing which is how we defined insider. 21 22 23 24 25 THE COURT: Well, for the purpose of retention. I’m sorry?

MR. MCMAHON: THE COURT:

For the purpose of retention. Correct.

MR. MCMAHON: THE COURT:

Okay.

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136 1 MR. MCMAHON: And, Your Honor, Your Honor denied the

2 payments for these individuals without prejudice at the last 3 hearing. And I appreciate the fact that in argument, debtor’s

4 counsel have, I guess, argued that they were incentive payments 5 as opposed to retention payments. 6 In paragraph 22 of the motion, the plans were labeled And, under the circumstances here, Your

7 retention plans.

8 Honor, they are a salary substitute. 9 Now, I don’t think that it’s a inference that a -- is

10 an inference that you need to hear evidence about for Your 11 Honor to infer that without this plan in place, these people 12 walk. 13 14 that. That’s clear -- we’re not here if that’s not the case. THE COURT: Well, here’s a question I have about

If, in fact, these payments or proposed payments are

15 salary substitutes, one question in my mind is, well, if there 16 had been no bankruptcy and they were paid when they were due, 17 ordinarily quarterly, they wouldn’t have been considered 18 retention. I mean, at least no more than any other salary

19 would be considered retention if, in fact, they’re really 20 salary substitutes. 21 So the question -- one question in my mind is, now

22 that we have the bankruptcy, and because of that the payments 23 need to be made now, why would you make them for other than 24 retention purposes? 25 I mean, I tend to agree with you and I -And, Your Honor, to follow up on that

MR. MCMAHON:

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137 1 point, we agree fully. I mean, the reason why the plan was put

2 in place was because we’re not dealing with the ordinary 3 course. I mean, in fact, it was the shutdown of the

4 origination business, certainly not an ordinary course event, 5 that put us in the position where -- that put the debtors in a 6 position where they needed to implement this plan. 7 Again, I think we need to get away from the words I think they cause a level of confusion here But to

8 ordinary course.

9 insofar as how to address the relief that’s requested.

10 the extent that it is informative in terms of understanding the 11 reason -- or at least the reason why this is not just the 12 regular incentive payment that goes to an executive when the 13 company is operating, then certainly it’s relevant to 14 understand that. 15 16 a moment. THE COURT: Let’s talk about the insiders status for

And the issue for the Court is -- well, it’s At the last hearing,

17 statutory construction and line drawing.

18 I said, okay, you have a number of individuals who hold the 19 office of vice-president. They have -- and it was conceded,

20 and I based my decision in part upon the debtors apparently 21 undisputed representation that some may have had some 22 management responsibility with respect to the various stores. 23 But they’re officers. And under the definitions in But I permitted those

24 the Bankruptcy Code, they’re insiders. 25 payments.

And the theory was that whatever Congress intended J&J COURT TRANSCRIBERS, INC.

138 1 to implement the language to exclude anyone with an office like 2 that in an organization like this would lead to a result that 3 didn’t make sense to me. 4 The problem is I’ve crossed a bridge. I’d like to

5 cross another one on the same theory.

And I don’t know -- I’m

6 not sure why, I shouldn’t, if the same proofs I find have been 7 offered in support of others who hold different titles. But in

8 terms of corporate management, no greater responsibilities than 9 those to whom payments were permitted. 10 MR. MCMAHON: Yeah. Well, Your Honor, I think I can First, our office’s

11 understand that and respond to it clearly.

12 position was that if you are an officer under the bylaws, you 13 shouldn’t be getting the payments, period. And I appreciate

14 the question that Your Honor asked me at the last hearing 15 regarding that, leading to absurd results. But really from our

16 perspective, it’s not, you know, an absurdity in terms of -17 question in terms of statutory construction. 18 consistency point. 19 Your Honor is clearly familiar with the cases It’s a

20 construing the term under Section 327 when we deal with the 21 definition of officer. And one I’d like to reference

22 specifically is Judge Walrath in the Essential Therapeutic 23 case. In that case, Your Honor, there is a law firm that

24 came forward and they had a partner of the law firm that 25 served as an officer pre-petition. And, you know, our

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139 1 office objected and argued that that officer’s status and such 2 should be imputed to the entire law firm, the law firm should 3 be disqualified from being employed under Section 327(a). 4 And so the argument went, the partner was less of an

5 officer, he held the title of corporate secretary, appointed an 6 officer under the bylaws. He was less of an officer because he

7 just showed up at the Board of Directors’ meetings and took 8 notes. In other words, his tasks were merely administerial,

9 perfunctory. 10 And Judge Walrath rejected that argument out of hand. “The words of

11 And she used these words to address the point. 12 Section 101.14 are not ambiguous.

They preclude retention if

13 the professional served as an officer of the debtors within two 14 years of the petition date. Congress did not state that

15 disqualification is mandated only if the officer was an 16 executive or had more than an administerial role. Therefore,

17 we conclude that we should not inquire into what role the 18 officer had, may have played, but need determine only whether 19 the professional was, in fact, an officer within the prescribed 20 time. In this case, the debtors concede this fact. The

21 debtors’ bylaws do provide that the secretary is an officer of 22 the debtors.” 23 In other words, for this Court, in the 327(a) And on this

24 context, Your Honor, the bylaws were enough. 25 record, we’re clearly in that zone.

And Your Honor’s

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140 1 specifically referring to the quotation from the Ohio case, CEP 2 Holdings. We were dealing there with just a straight title

3 case, meaning clearly your -- we’re going to give someone a 4 label for the purpose of having -- them having a title. 5 were not dealing in that situation with a bylaw officer. 6 7 opinion. Let me read you from that -- a portion from that This is on page -- star 4, close quote -- open quote. We

8 “The debtor’s statement of financial affairs lists only one 9 officer, Mr. Malack (phonetic). In response to questioning by

10 the Court, debtor’s counsel confirmed that only Mr. Malack had 11 been the subject of a directors or managing members’ resolution 12 of election of an officer. 13 This leads to question whether the inclusion of

14 officer title such as, ‘executive vice-president, 15 customers/sales’ and ‘VP Purchasing’ on the plan schedules 16 automatically confers officer status for the purpose of Section 17 503(c).” 18 That’s not the question, Your Honor, that we’re It’s clearly these people are within

19 dealing with here today.

20 the bylaw ambit and this Court has held in the Section 327(a) 21 context that those people are officers. End of discussion. It

22 doesn’t matter whether they -- all they had on their desk was a 23 pencil and pen, they turned off their computer once a week. 24 Certainly, Your Honor, on this record some of the

25 individuals we’re talking about had more responsibility than J&J COURT TRANSCRIBERS, INC.

141 1 that. The ability to hire and manage employees. Certainly an

2 important responsibility.

But I think we need to come back to

3 the essential point that once we’re talking about corporate 4 officers, end of discussion. We don’t need to get into an And that is

5 argument about who’s more important than the next. 6 the -7 8 9 THE COURT:

Well, so what you’re saying --- gravamen of our position. So what you’re saying is I

MR. MCMAHON: THE COURT:

All right.

10 was in error when I made the last decision with respect to 11 those titled vice-president and I would be in error to award 12 the relief that’s requested with respect to these six 13 individuals? 14 MR. MCMAHON: Your Honor, our position is fairly

15 clear on this point.

Yes, we believe that to extend this

16 further opens up, say, a lot of side consequences that frankly 17 become -- would be even problematic in a Section 327(a) 18 context. I mean, does that meet -- does this ruling -- if a

19 ruling of granting these people relief today, Your Honor, would 20 that mean that, for example, the executive vice-president or 21 senior vice-president could have a consulting company that did 22 business with the debtor. 23 under Section 327(a). 24 These are not minor questions from our office’s They’re important ones. So I think that the And that firm could be employed

25 perspective.

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142 1 bright line rule -- the definition of insiders under Section 2 101.31 includes officer. And under this -- other rulings of

3 this Court, officer means -- if you’re an officer under the 4 bylaws, you’re an officer. And the individuals we’re talking

5 about today clearly have that status. 6 That’s the core of our position, Your Honor. I don’t

7 know how much further I can put it.

But we’re definitely

8 concerned about narrowing these definition of insider down to 9 the point where it includes no one, in fact, contradicts the 10 debtors’ own corporate actions. 11 THE COURT: What about the fact that -- well, I’m not Okay. Anything further, Mr.

12 going to ask that question. 13 McMahon? 14 15 16 MR. MCMAHON: THE COURT: MS. UHLAND:

I don’t, Your Honor, thank you.

All right. With respect to this officer insider

17 issue, I do think there is a difference and the Court has and 18 the Court should continue to draw a distinction, for what 19 transaction we’re considering someone to be a corporate 20 officer, an inside, more appropriately of the debtor. And the

21 327(a) context is different than the type of situation that we 22 have today. I’m not saying that we wouldn’t meet that standard But I do not believe that

23 with these individuals as insiders.

24 the Court’s ruling today with respect to this issue is a 25 construction under 327(a). J&J COURT TRANSCRIBERS, INC.

143 1 THE COURT: See, here’s the rub for me. You know,

2 Congress said, for example, you know, evaluations for different 3 purposes can come out differently. But there’s no distinction You

4 in the Code with respect to an insider or an officer.

5 know, to the extent there are differences, it’s been developed 6 by decisional law. 7 language itself. 8 MS. UHLAND: Well, applying -- again, looking at the But it doesn’t come from the statutory

9 construction of officer for the rubric that we’re suggesting is 10 the one that’s been applied to preference statutes and, you 11 know, basically backing into what is an insider and then 12 there’s an enumerated officer for that purpose. And it’s the So I

13 same sort of definition of insider that 503 looks to. 14 don’t think by proposing that the insider standard -15 16 statute? THE COURT:

But how do I divine that from the That

Where is it in the statute that tells me this?

17 there ought to be a distinction? 18 19 officer. 20 THE COURT: Or in 503? I mean, we know generally MS. UHLAND: In the definition of insider for

21 that this section came about because of what were perceived as 22 excesses which occurred in the corporate and bankruptcy world 23 with respect to payments to insiders. 24 MS. UHLAND: Your Honor, nor does the statute say

25 that the CEO and anyone with a vice-president title is deemed J&J COURT TRANSCRIBERS, INC.

144 1 an insider. It says an officer of the debtor. And I think the

2 definition of officer is what we’re talking today, is what is 3 an officer of the debtor. Is anyone holding a title, even if

4 the corporation, which I’d like to talk about in a minute, has 5 the bylaws that we have, is the -- is having a title the 6 definition of “officer of the debtor” as intended by Congress. 7 And it is that that I think is ambiguous and that we -- is 8 subject to statutory construction. 9 Because what is an officer of the debtor. Is an

10 officer of the debtor a senior vice-president-divisional 11 manager. Is -- you know, I would posit that the officers of

12 the debtor are the aforementioned chief executive officer of 13 the corporation’s -- the president of the corporation, the CEO 14 of the corporation. 15 So I think that that is where consistent with the

16 statute and we’re not just thwarting the statutory reading, but 17 instead interpreting what it means when we go to the more 18 functional analysis of what is an officer of the debtor. 19 Further, Your Honor, we passed up the bylaws of New The bylaws provide permissive It

20 Century Mortgage Corporation.

21 appointment of different titles by the Board of Directors. 22 provides that the Board of Directors can appoint a vice23 chairman of the Board. And then it goes on to say, “one or

24 more vice-presidents, a treasurer, one or more assistant 25 secretaries, one or more assistant treasurers,” and it says, J&J COURT TRANSCRIBERS, INC.

145 1 “such other officers may be appointed in accordance with 2 Section 3 of this article and one person may hold one or more 3 officers.” 4 It then goes on to Section 3 of the article to And

5 describe what they call subordinate officers, et cetera.

6 says that the “Board of Directors may appoint by resolution and 7 may empower the chairman of the Board, if there is to be such 8 an officer, or the president to appoint such other officers as 9 the business or the corporation may required. Each of them

10 shall office for such period, have such authority and perform 11 such duties as determined by time to time by resolution of the 12 Board.” 13 The provision of these permissive articles that allow

14 a Board of Directors to affect, act on the parties who were 15 given titles for different purposes should not be dispositive 16 that those parties are, in effect, officers of the debtor with 17 the executive authority and functional control of the debtor. 18 Again, we believe that the company at issue here, consistent 19 with these detailed bylaws may have had corporate cleanup 20 resolutions to confirm the appointed, nomenclature for the 21 different individuals in their sales organization. 22 happened with the lag. Mostly this

It wasn’t a Board authorized issue in

23 each effect, but it was probably an after-the-fact confirmation 24 of the title by the Board to be consistent with their own 25 policies set into place. J&J COURT TRANSCRIBERS, INC.

146 1 But the fact that they have these provisions in their

2 bylaws should not be dispositive of what creates -- the fact 3 that the Board had the authority to designate the different 4 titles before or after the fact should not be dispositive in 5 determining who is, in effect, an officer of the corporation. 6 In that instance, what is happening is a more

7 elaborate corporate process and a more formal corporate process 8 is causing sort of a proliferation of potential corporate 9 officers which wasn’t the -- for the purposes of what the 10 bankruptcy Code was trying to address here certainly not the 11 intent of the business people who formed their own bylaws and 12 designated this own method to govern their own disposition of 13 titles. 14 So for that reason, while yes, the courts do consider

15 the -- the courts have considered in the corporate officer 16 issue what the debtor’s bylaws say, where you have permissive 17 bylaws here, I do not believe that that is dispositive nor have 18 the courts who have looked at it view that as a dispositive 19 fact. 20 Now, accordingly, you know, we believe that

21 determining whether someone is an officer of the debtor, we 22 should look to the factors the courts have looked to determine 23 that position in prior transactions which is while -- we’re 24 saying while the titles and bylaws are certainly matters to -25 that can be weighed in that, we take the position that given J&J COURT TRANSCRIBERS, INC.

147 1 the facts here, as testified by Mr. Meola, that, one, the large 2 purpose for deriving the titles in this situation was the 3 external factor of providing a sales organization common with 4 the industry of providing those individuals titles both to 5 recruit those individuals into those positions and to insure 6 their ability to recruit other individuals. 7 And further, that the business purpose served with

8 those titles was a client driven purpose, that that factor 9 should also be weighed. 10 And perhaps most importantly, that while these

11 individuals have certain hiring and firing authority, their 12 inability to set corporate policy, including pricing, and their 13 inability to set or influence their own compensation and the 14 compensation plan before the Court is dispositive that with 15 respect to these individuals in these sales -- in the wholesale 16 production plan, that they should not be considered officers of 17 the debtor in accordance with the statute. 18 should not be considered insiders. 19 THE COURT: Is there any thing in the record which And therefore, they

20 reflects their annual compensation? 21 MS. UHLAND: I don’t believe there’s anything in the

22 record except that it’s -- we could probably take a break and 23 obtain that information. But right now, the compensation

24 information that’s in the record is that it’s consistent with 25 the additional -- with the payments we’re discussing here, that J&J COURT TRANSCRIBERS, INC.

148 1 it’s consistent with industry norms, consistent with their 2 prior period pay and reasonable as Mr. Meola has proffered. 3 THE COURT: What’s the aggregate amount proposed to

4 be paid to these individuals for this quarter that’s the 5 subject of request for relief? 6 MS. UHLAND: I have -- if I may break, I can total

7 that amount up. 8 9 MS. UHLAND: (Pause) The aggregate for the six individuals is

10 approximately $560,000. 11 THE COURT: I would like to know what the annual, you

12 know, either average or within a range compensation of these 13 individuals are. 14 you need -15 16 17 MS. UHLAND: THE COURT: MS. UHLAND: No, I can provide that, Your Honor. Thank you. The high end of the range is Mr. Lemon And the division managers of And I would take a break for that purpose if

18 at approximately $1.2 million. 19 825,000.

That represents based salary plus 4-500 percent of So the base salaries

20 the balances set forth in a target bonus. 21 range from 200,000 to 150,000. 22 THE COURT:

See, I -- when you start looking behind

23 the expressed language, you know, it’s -- there’s always a 24 danger in that, especially given the absolute overwhelming push 25 by the Supreme Court and in the Circuit for plain language J&J COURT TRANSCRIBERS, INC.

149 1 interpretation, along the lines of what the U.S. Trustee’s 2 arguing here. 3 But, the debtor convinced me I should look beyond But if

4 that with respect to the earlier relief that I granted.

5 you take the titles of the six involved here and you take the 6 salary level, compensation level, it seems to me Congress, you 7 know, if you want to try to divine an intent, always a risky 8 enterprise, they would think those compensation levels are a 9 lot of money. 10 I just, on this record and because of the language of

11 the statute, I just can’t be pushed over that second bridge. 12 And I said this before, it’s not because those involved aren’t 13 important to the debtor’s business. It’s not because they’re It’s simply a

14 not deserving of those compensation levels.

15 matter of trying to be true to implementation of the statute 16 that the Congress -- that I am subject to and that Congress has 17 passed. 18 And under these circumstances, I can’t say they’re

19 not insiders and I can’t say these payments at this stage 20 aren’t primarily for the purpose of retention. I can’t say I’m not

21 that they’re in any sense in the ordinary course. 22 going to grant this relief for those reasons.

And I understand

23 that it may cause some anguish, not just for the individuals 24 involved, but for the debtor. 25 anything else for today? J&J COURT TRANSCRIBERS, INC. But that’s my ruling. Is there

150 1 2 MS. UHLAND: THE COURT: No, Your Honor. You know, we may --

I’m not saying there might not be some

3 other way to give value to these individuals. 4 MS. UHLAND: And I was going to mention, we may be

5 back and may be saying again it’s one more emergency, but if we 6 are able to structure something with the Creditors Committee to 7 enable us to come with a proposal with Your Honor, we would 8 probably want to have that heard -9 10 way. 11 12 13 MS. UHLAND: THE COURT: Okay. Thank you, Your Honor. THE COURT: I’m not foreclosing that there may be a

Mr. McMahon. A couple of things, Your Honor. With

MR. MCMAHON:

14 respect to whatever proposal the debtors and the Committee may 15 come back to -- with on that point, I just ask that our office 16 get noticed, say, a week before the scheduled hearing such that 17 we would have an opportunity to take a look at whatever’s being 18 proposed. 19 20 Is that acceptable? MS. UHLAND: MR. MCMAHON: Yes, Your Honor. And then second, Your Honor, and this The

21 just a housekeeping matter from our office’s perspective. 22 list of items on for the 24th is rather extensive.

And we have

23 provided the debtor’s informal comments with about -- I want to 24 say about eight items, relating to eight items on the agenda. 25 I have a personal commitment to attend a funeral J&J COURT TRANSCRIBERS, INC.

151 1 tomorrow morning and making the agenda deadline, having 2 objections filed by noon tomorrow was probably going to be a 3 bit difficult. I’d just ask the Court’s indulgence to the To the

4 extent that we get them filed by midnight tomorrow.

5 extent that the matter’s going forward on the 24th, that the 6 Court would entertain those responses or objections. 7 8 9 10 McMahon. THE COURT: MS. UHLAND: THE COURT: Is there any objection? No, Your Honor. Very well. That’s fine with me, Mr.

Let’s see, let me look through my list and make sure

11 that I didn’t have any housekeeping matters. 12 MS. FATELL: Your Honor, excuse me, Bonnie Fatell for I don’t have the agenda for the 24th

13 the Creditors Committee.

14 in front of me, but we have been working with the debtor on a 15 number of issues and we would request the same extension from 16 the Court. 17 18 19 20 for today? 21 hearing. 22 23 24 25 J&J COURT TRANSCRIBERS, INC. THE COURT: MS. UHLAND: THE COURT: All right. Any objection? No, Your Honor. All right. Thank you. Very well. Anything further

That concludes this

The Court will stand in recess until 3:00. * * * * *

152 1 2 3 4 I, Susan Holcomb, court approved transcriber, certify C E R T I F I C A T I O N

5 that the foregoing is a correct transcript from the official 6 electronic sound recording of the proceedings in the above7 entitled matter. 8 9 /s/ Susan Holcomb 10 Susan Holcomb AAERT CET **00273 Date: April 30, 2007

11 J&J COURT TRANSCRIBERS, INC. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 J&J COURT TRANSCRIBERS, INC.

UNITED STATES BANKRUPTCY COURT DISTRICT OF DELAWARE . . Chapter 11 . New Century TRS Holdings, . Inc., et al., . . Debtor(s). . Bankruptcy #07-10416 (KJC) ............................................................. IN RE: Wilmington, DE May 7, 2007 10:00 a.m. TRANSCRIPT OF MOTIONS HEARING BEFORE THE HONORABLE KEVIN J. CAREY UNITED STATES BANKRUPTCY JUDGE APPEARANCES: For The Debtor(s): Suzzanne S. Uhland, Esq. O'Melveny & Myers, LLP 275 Battery Street San Francisco, CA 94111 Ben H. Logan, Esq. O'Melveny & Myers, LLP 275 Battery Street San Francisco, CA 94111 Robert J. Stern, Jr., Esq. Richards Layton & Finger, PA One Rodney Square Wilmington, DE 19801 Michael J. Merchant, Esq. Richards Layton & Finger, PA One Rodney Square Wilmington, DE 19801 Marcos A. Ramos, Esq. Richards Layton & Finger, PA One Rodney Square Wilmington, DE 19801

2 Christopher M. Samis, Esq. Richards Layton & Finger, PA One Rodney Square Wilmington, DE 19801 For The Official Committee: of Unsecured Creditors Mark Indelicato, Esq. Hahn & Hessen, LLP 488 Madison Ave. New York, NY 10022 Mark Power, Esq. Hahn & Hessen, LLP 488 Madison Ave. New York, NY 10022 Janine M. Cerbone, Esq. Hahn & Hessen, LLP 488 Madison Ave. New York, NY 10022 Bonnie Glantz Fatell, Esq. Blank Rome, LLP One Logan Sq. 130 N. 18th St. Philadelphia, PA 19103 Regina S. Kelbon, Esq. Blank Rome, LLP One Logan Sq. 130 N. 18th St. Philadelphia, PA 19103 For UBS: Keith W. Miller, Esq. Paul Hastings Park Ave. Tower 75 E. 55th St-1st Fl. New York, NY 10022 Richard Chesley, Esq. Paul Hastings 191 N. Wacker Drive Chicago, IL 60606 Gregory A. Taylor, Esq. Ashby & Geddes 500 Delaware Ave.-8th Fl. Wilmington, DE 19899

3 Bruce Bennett, Esq. Hennigan Bennett 865 S. Figueroa St-Ste. 2900 Los Angeles, CA 90017 For Bank of America: Laurie S. Silverstein, Esq. Potter Anderson & Corroon, LLP Hercules Plaza 1313 N. Market Street Wilmington, DE 19899 Rachel B. Mersky, Esq. Monzack & Monaco, PA 1201 N. Orange Street Wilmington, DE 19899

For RBC:

For Deferred Comp. Claimants: Robert Keach, Esq. Bernstein Shur 100 Middle Street Portland, ME 04104 Joseph H. Huston, Esq. Stevens & Lee, PC 1105 N. Market St., 7th Fl. Wilmington, DE 19801 For Kodiak Funding: Matthew Botica, Esq. Winston & Strawn, LLP 35 W. Wacker Drive Chicago, IL 60601 David W. Wirt, Esq. Winston & Strawn, LLP 35 W. Wacker Drive Chicago, IL 60601 Norman Monhait, Esq. Rosenthal Monhait & Goddess, PA 919 Market St.-Ste. 1401 Wilmington, DE 19899 For Deutsche Bank Structured: Robert Brady, Esq. Products Young Conaway Stargatt & Taylor, LLP 1000 West Street-17th Fl. Wilmington, DE 19899

4 For Ellington Management: Group Van Durrer, Esq. Skadden Arps Slate Meagher & Flom, LLP 300 S. Grand Ave.-Ste. 3400 Los Angeles, CA 90071 Laura Davis Jones, Esq. Pachulski Stang Ziehl Young Jones & Weintraub, LLP 919 N. Market Street-17th Fl. Wilmington, DE 19899 Bennett Spiegel, Esq. Kirkland & Ellis, LLP 777 S. Figueroa Street Los Angeles, CA 90017 For Goldman Sachs Mortgage: Co. Lisa M. Schweitzer, Esq. Cleary Gottlieb Steen & Hamilton, LLP One Liberty Plaza New York, NY 10006

For Greenwich Capital: Financial Products

(Via Telephone) For Deutsche Bank Sructured: Products Andrew J. Gallo, Esq. Bingham McCutchen, LLP 150 Federal Street Boston, MA 02110 Richard Agins, Esq. Bingham McCutchen, LLP 150 Federal Street Boston, MA 02110 For Bank of America: Nicholas J. Cremona, Esq. Kaye Scholer, LLP 425 Park Ave. New York, NY 10022 Shirley Cho, Esq. Kirkland & Ellis, LLP 777 S. Figueroa Street Los Angeles, CA 90017 Christy Rivera, Esq. Chadbourne & Parke 30 Rockefeller Plaza New York, NY 10112

For Greenwich Capital Financial Products

For Credit Suisse First: Boston

5 For the U.S. Trustee: Joseph McMahon, Esq. Office of the United States Trustee 844 King St.-Ste. 2207 Lockbox 35 Wilmington, DE 19801 Matt Yovino Writer's Cramp, Inc. 6 Norton Rd. Monmouth Jct., NJ 08852 732-329-0191

Audio Operator: Transcribing Firm:

Proceedings recorded by electronic sound recording, transcript produced by transcription service.

6 Index Further Direct Cross Redirect Recross Redirect Witnesses For The Debtor: Ms. (by (by (by Etlin Mr. Stern) Mr. Power) Mr. McMahon) 141 173 180 201 204 208 219 198

Mr. Glassner (Voir Dire) Mr. Glassner (by Mr. Stern) (by Mr. McMahon) Witnesses For The Creditor's Committee: Mr. Warren (by Mr. Power)

82

EXHIBITS: US Trustee-1 Order Authorizing Retention

Marked 211

Received 222

SUMMATION BY: Mr. Mr. Stern Mr. Indelicato Mr. McMahon Rebuttal Mr. Stern The Court: Finding 112 258 222 244 248 255

As To Motion As To Motion

7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE CLERK: THE COURT: ALL: All rise. You may be seated.

Good morning all.

Good morning, Your Honor. Good morning, Your Honor, Suzzanne We're

MS. UHLAND:

Uhland of O'Melveny & Myers on behalf of New Century. here this morning on a variety of matters.

Generally we'd like

to proceed in the order of the agenda, but we understand that an agreement has been reached with respect to the last matter on the agenda, the UBS motion, and accordingly -- or largely been reached with respect to that matter. So we would propose

to go ahead and proceed with that and have Mr. Bennett explain where the parties are with respect to that -THE COURT: MS. UHLAND: THE COURT: MR. BENNETT: Very well. -- if that's okay with the Court. Yes, that's fine. Good morning, Your Honor, Bruce Bennett

of Hennigan Bennett & Dorman, special -- proposed special litigation counsel. At least for a little while. I -- Your

Honor, I was not on the telephonic hearing that you conducted on Friday, but I've heard about it, and based upon receiving papers pretty late and not being able to find people on the weekend and wanting to do this in an orderly fashion, what we've agreed to do is escrow $2.67 million into a separate interest bearing account, mechanics to be defined. And to

schedule a hearing on what would be a Preliminary Injunction

8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1:30. Motion for, here's our proposal, either June 11th or June 15th were two dates that are about the time frame that would work for the parties. I don't know what Your Honor's schedule is

but we're looking for some advice in that regard. THE COURT: Do we have any yet? Nancy, what are our June hearing dates? The 11th I will be out of town. Okay.

MR. BENNETT:

(Pause in proceedings) THE COURT: There's an omnibus set for June 14th at

Would that suit, counsel? MR. BENNETT: That's actually a problem for me. If

-- the choices are the 14th at 1:30 or the 27th? THE COURT: 27th at 10. Well, if the Debtor wanted

to move its omnibus from the 14th to the 15th I would do that. MR. BENNETT: That helps me a lot. 14th is a

Thursday, 15th is a Friday. MS. UHLAND: THE COURT: That's fine, Your Honor. All right. Well, we'll move the omnibus

hearing that's now set for June 14th at 1:30 to June 15th at 10 o'clock. And we'll schedule the preliminary injunction hearing

for the same day and time. MR. BENNETT: the parties. Okay. I think that's acceptable to all

There will be an order to follow. All right. Thank you, Your Honor.

THE COURT: MR. BENNETT:

9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. CHESLEY: Your Honor, Richard Chesley, Paul That is acceptable. We appreciate

Hastings, on behalf of UBS.

the Court's indulgence on the schedule. THE COURT: MR. POWER: for the Committee. the adversary. Certainly.

Thank you.

Your Honor, Mark Power from Hahn & Hessen Your Honor, two things in connection with

One is we've been over the weekend working with

the Debtor and UBS to try to get to this point and schedule the hearing. As a part of that the parties have consented to the Originally we were

Committee intervening in the action.

stepping -- we were not intervening because it was an accounting matter. We're now getting into legal issues So the

regarding property rights and secured versus unsecured. Committee has a direct interest in that. And I think the

parties will agree to that and we'll submit that under stipulation to Your Honor. MR. CHESLEY: An Intervention Motion.

Your Honor, we'll simply include that

in the order if that's acceptable to the Court. THE COURT: MR. CHESLEY: It's fine with me. That's fine, thank you, Your Honor.

(Pause in proceedings) THE COURT: Let me ask, will the order cover matter

#10 on the agenda as well in UBS? MR. CHESLEY: THE COURT: Excuse me, Your Honor, matter 10 was -It's UBS's motion to file an exhibit.

10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Honor. THE COURT: MR. CHESLEY: THE COURT: MS. UHLAND: Very well. Thank you. Thank you. Your Honor, the next matter on the MR. CHESLEY: Your Honor, I -- was that granted on --

at the hearing on Friday or was it -THE COURT: MR. CHESLEY: THE COURT: MR. CHESLEY: Maybe -I believe it was. Okay, maybe I did. We can include that in the order just

to clarify that because there is no actual order entered if you -THE COURT: Yes, I remember the supplemental

memorandum being a subject of the request but not specifically the exhibit. But -We'll include that in the order, Your

MR. CHESLEY:

agenda is the application of the Debtors to employ O'Melveny & Myers as co-counsel for the Debtors. prior hearing. This was continued from a

We received a request from the United States

Trustee for some additional disclosures and additional review of the Debtors -- of O'Melveny's client base to check not only the Parties-In-Interest but also all the potential purchasers of assets. This morning we prepared that supplemental declaration and

11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 question. we've submitted it to the United States Trustee to review, and have filed that supplement declaration this morning. With that

filing my understanding is that the U.S. Trustee's issues are resolved and we're prepared to submit the order. THE COURT: that was made today. look at? MS. UHLAND: THE COURT: Your Honor, I have a copy, if I may? Thank you. All right. I have not seen the filing

Does someone have a copy I can take a

(Pause in proceedings) THE COURT: All right, I note that in the O'Melveny Was To

affidavit that there was $190,000 unbilled prepetition. that amount the subject of a prior request for relief? apply it? Or am I thinking of something else? MS. UHLAND:

In our application we asked to apply the

retainer to -- as part of our application we asked Your Honor to the extent something was billed but not yet -- or unbilled at the time of filing that we be allowed upon billing and approve invoice to apply it to the retainer. in our request. THE COURT: Okay. All right, anyone else care to be That was included

hear in connection with this matter? ALL: (No verbal response). I hear no response. That was my only

THE COURT:

Do you have a Form of Order?

12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MS. UHLAND: THE COURT: Yes, I do, Your Honor. Thank you.

(Pause in proceedings) THE COURT: MS. UHLAND: That order has been signed. Thank you, Your Honor. Your Honor, the

next matter is the Debtor's Motion for an Order Authorizing the Payment of Sale Related Incentive Pay to Senior Management and Retention and Incentive Pay to Certain Employees pursuant to section 105, 363 and 503 of the Bankruptcy Code. Your Honor,

we originally filed this motion on April 11th, and we filed an amendment to that motion last Tuesday. What we propose to do at the -- to address the hearing today and the Court's interest in creating a sufficient or hearing testimony to support the Debtor's motion is I will walk through the relief sought by the motion and walk the Court through some of the changes that were made first from the original filing to the amendment, and then some further changes that have been made more recently since -- as a result of further negotiations and discussions with the Creditors Committee. THE COURT: hearing on Friday? There been any developments since the Any further developments? No further developments, Your Honor.

MS. UHLAND:

The Debtors and the Committee have worked to just document the economic agreement that they had reached previously.

13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: All right. And the U.S. Trustee is

pressing her objection? MR. MCMAHON: Your Honor, Joseph McMahon. We are and

we haven't seen the documentation of what's before the Court today. Be nice if we could see a copy of it. THE COURT: Ms. Uhland, I didn't specifically direct

it, but I would have hoped that the U.S. Trustee would have been provided with any documentation prior to today's hearing. I mean one of the arguments that the U.S. Trustee made Friday was, you know, we haven't had time to look at this. MS. UHLAND: THE COURT: Your Honor -I would have thought that immediately

after having voiced that -- maybe it wasn't ready until this morning. I don't know. MS. UHLAND: Explain that if you would. Yes, Your Honor. The changes are not

very complicated to the economics reached with the Committee. But it did take, Your Honor,'til late last night to run those changes and work out the language through the plans. So Your

Honor, we -- it was, like I said, very late last night with travel and we have blackline changes to the plans that we can walk through. But given the late hour I determined to simply But they just simply

walk through -- with them with the Court. were not ready. Previously.

THE COURT:

Well, I'm inclined to grant the U.S.

Trustee's request then.

14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MS. UHLAND: Your Honor, what I would propose we do,

as I said, the changes are rather straightforward, as perhaps we can provide these changes to the Trustee this morning -- the revised plans. These would be the revisions from the exhibits I said, they're very

to the order that were filed on Tuesday. minor modifications.

Perhaps we can adjourn this part of the

hearing 'til 1 o'clock and the Trustee can have an opportunity to review those minor economic changes. THE COURT: MR. MCMAHON: Mr. McMahon? Your Honor, part of this process has

been receiving on an employee by employee basis the specific payments which are proposed to be made under the two plans that are issue in the motion. We started out with a spread sheet

that contained roughly 120 people, and after the amended motion was filed last Tuesday we're down to 90. Now I'm being asked

to, I guess, accept information at some point this morning while we have a hearing going on in other matters, and completing some type of review such that I can be informed for an evidentiary hearing this afternoon. On the employee by employee analysis, Your Honor, I can't say that I'm prepared to do that. And I would agree with Your

Honor that the appropriate thing to do is to move this matter to the 15th pending the consideration of the Trustee Examiner Motion. MR. INDELICATO: Your Honor, Mark Indelicato from

15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Hahn & Hessen on behalf of the Committee. Your Honor, I

sympathize with the U.S. Trustee and I heard the Court's -well, not a direction, suggestion on Friday. But to be fair to

the Debtor, Your Honor, I believe the e-mail was circulated late last night. -THE COURT: You know, I'm not -- please don't We are trying to go through the changes today

interpret my comments as criticism. MR. INDELICATO: THE COURT: No, no, I --

I understand that the process, with

everything that's going on it moves at a number of different levels and eats up all kinds of resources, both legal and otherwise. And that's not my issue. My issue is trying to

balance the need for the quick action that the Debtor here is requesting and that the Committee is consenting to against the objector here, who's raised, I think, some very serious objections about the payments. to, you know, other things. MR. INDELICATO: And what I was gonna get to, Your You know, from officer status

Honor, and I thought what was the Court's suggestion on Friday is, I think there is an essential need that this get resolved today. I think one way or the other. I think the Court needs

to hear the evidence. What I was suggesting is that I'm not so sure giving Mr. McMahon an hour or two to go through it is going to address

16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 his concern on an employee by employee basis. But that may

come out in the testimony that the Court is gonna hear today. The only way you're gonna get that information is from the Debtors. And instead of unfortunately sitting down with the

Debtors maybe we're forced to do it in the evidentiary hearing. Because I think, Your Honor -THE COURT: But see, if the Committee were the

objector here and the Debtor had proposed to proceed in that fashion, you would be objecting. MR. INDELICATO: I would, Your Honor. But the

difference here is, and what we're hearing from the Debtor and what we're hearing from potential bidders is it's imperative that these employees be kept in place and that this -THE COURT: I don't dispute that proposition. You

know, and maybe there are -- except for the U.S. Trustee, who has, maybe there are a few others who would. MR. INDELICATO: Well, Your Honor, what I'm

suggesting is that give us an alternative to try and satisfy the U.S. Trustee and the Court, and I think as the Court laid out, if you're not satisfied and the U.S. Trustee is not satisfied at the end of the testimony we could address that issue then. THE COURT: Well, what I had anticipated was that at

the point -- before we came to the hearing today that the U.S. Trustee would have in her hands whatever would be necessary --

17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 what the Debtors was proposing today. And I find out, again

understanding the circumstances, I'm not necessarily accusing anyone of moving too slowly. true, some have said. In fact the opposite might be

It's the fact that the U.S. Trustee is And what I'm

being forced to come to the hearing unprepared.

hearing you say is, well, Mr. McMahon can listen to the testimony and -MR. INDELICATO: THE COURT: You know, Your Honor -I had

-- that will be good enough.

wanted to hear testimony to convince myself that the need for the speed which was being pursued here was real. And that's I was

really why I didn't grant the Trustee's motion Friday.

giving the proponent here a chance to say, okay, here's -- it's real, we need it now, and I wanted evidence of that. argument of counsel. Not just

But there's an objector here, and it just

seems to me to be putting the U.S. Trustee, and the Court perhaps, at an unfair disadvantage with respect to something that may have some serious issues connected with it. MR. INDELICATO: All I was suggesting, Your Honor, is

give us the opportunity, or give the Debtor the opportunity. And then if the U.S. Trustee, if it has not addressed his concerns it's without prejudice for him to renew his Motion to Adjourn, and maybe there's some way that we could balance his issues against the employee issues and come to resolution. I understand it's not a perfect settlement. It's not a

18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 perfect case. But what I'm just concerned about is just a mere So

adjournment will send a wrong message to the employees. that's what I'm trying to fashion, Your Honor.

I am trying to

balance all the issues, and I certainly appreciate what we're asking the U.S. Trustee to do. issues. THE COURT: Well, I've said from time to time that I But we're trying to balance the

don't view myself as being in the message sending business. More like in the dispute resolution business. that sometimes there are consequences to that. MS. UHLAND: Your Honor, one other point I would -But I understand

we reviewed the United States Trustee's objection, and the changes that we're talking about from the filed motion go to the economics. The Trustee's objections raise issues of the

insider status, and the -- sort of the incentive nature of the plan, none of which have been changed by the virtue of the changes we've agreed to with the Creditors Committee. So we

are here today prepared to address the United States Trustee's objection with our evidentiary record. The fact that we've made further economic reductions in the plan by virtue of our agreement with the Creditors Committee really does not -- in my mind does not alter at all our response to the U.S. Trustee's objections. So we're not

asking the Trustee to respond in realtime to our proposed -you know, to address the changes. We're prepared to, in

19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 affect, proceed on the record on the motion from last Tuesday, as I said with some minor economic modifications. THE COURT: Well, here's what I'm going to do. I

will temporarily adjourn the matter to some point this afternoon, and we'll decide what time it is. break. I will need to

I have a commitment which I entered into before setting So we're going to --

this hearing date that I intend to keep.

I don't know how long the rest of the agenda will take, but we're going to break at 12:15 and probably won't come back until about 2:15 in any event. least that time. So we'll push in matter to at

And then after the U.S. Trustee has had a

chance to review the latest iteration of the proposed plans then we'll take up her request again. MR. MCMAHON: Your Honor, if I could make a request.

As I noted for the record, I have yet to see the employee by employee analysis and spread sheet format, and I'm wondering whether the Debtors can provide that this morning before that hearing. THE COURT: MS. UHLAND: Well, I think they ought to. Yes, Your Honor, I'll just need to

clarify with Mr. McMahon exactly what he's looking for and we'll get it. THE COURT: matter for now. MS. UHLAND: Your Honor, the next motion is the All right, thank you. We'll pass this

20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that one? MR. LOGAN: Your Honor, many of the changes are just Debtors -- the final hearing for the D-I-P financing, and Ben Logan will be handling that for us. MR. LOGAN: Thank you, Your Honor. We were before

the Court on April 3 to have a hearing -- the interim hearing on the Debtor-In-Possession financing. committee's been appointed. Since then obviously a

We had substantial dialogue with

the committee over the terms of the Debtor-In-Possession financing agreement. And indeed we had a hearing originally

set for April 24, was the date initially set for the final hearing on the Debtor-In-Possession credit agreement. That was

continued to today largely to let us continue to pursue issues that the Creditors Committee had raised. And I'm pleased to

report that we have an agreement with the Creditors Committee. There is a revised version of the Final Order, revised from the version that was submitted with the moving papers that reflects the agreements between the Debtor-In-Possession Lenders, the Creditors Committee and the Debtors, which I could hand up to the Court. THE COURT: MR. LOGAN: THE COURT: If you would. It's both.

Your Honor, may I approach? Yes. Okay, well, does it differ from

to reflect the fact that it's a Final Order, as opposed to an Interim Order. But let me just highlight a few examples of

21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 things that with were discussed with the Creditors Committee and reflected in a revised verse of the order. One, in paragraph numbered 3 there is an addition that three days notice had to be given to the Creditors Committee of any proposed amendments to the D-I-P credit agreement. And

just let me add parenthetically there, there was one amendment that occurred during this time frame pursuant to the similar provision of the Interim Order which extended the period of time during which the Debtors and the D-I-P Lenders could agree do provide traunch B. I'm not sure if Your Honor remembers,

traunch B was a supplemental facility that would have been used to take out the Citigroup service or advance facility. So

those negotiations continued on longer than was contemplated at the time of the original D-I-P credit agreement. Paragraph 5, the parenthetical added there reflects the agreement on limiting fees that was undertaken in connection with what we used to call the Greenwich sale. it now the Ellington sale. to bring the two into sync. The Creditors Committee added the paragraph at the bottom that their rights to challenge the cost and expenses for reasonableness are reserved. it's now explicit. Perhaps most significantly, paragraph 7, and there's some corresponding changes throughout the document, liens on That was probably implicit, but I guess we call

But that just is a cross reference

22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 avoiding powers have been stricken. The original motion

contemplated that the D-I-P Lenders would have liens on avoiding powers, not at the time of the interim hearing but they were requesting one at the time of the final hearing. Your Honor gave them a heads up at the time of the interim hearing that that was going to be a tough road to hoe, and it's not being hoed. So that is stricken. And

There's a corresponding change to carve out from the administrative priority any proceeds from avoiding powers. That's found on paragraph 17, for otherwise not granting any lien on avoiding powers would be a little bit illusory, since if they had an administrative priority they could get to the same result. Paragraph 18, paragraph(b), there's been some clarification as to what the Committee can do with the carve out funds. They can investigate the extent, validity, There is some

perfection, et cetera, the liens and the claims.

language in the original order about preventing, hindering or unreasonably delaying, which the parties agreed was a little bit broad. I'm not sure how one investigates or does other So that was clarified.

things the D-I-P Lenders don't like.

Perhaps the next significant change is found in paragraph #21, where the Committee was successful in clarifying that during -- well, first off, extending the notice period before the Secured Lenders can exercise certain remedies from three

23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 business days to five business days, giving us two business days additional time. And adding the language at the end that

during that five business day period the Debtors or the Committee may seek an order from the Court trying to enjoin the D-I-P Lenders from exercising those remedies. And Your Honor, most of the other changes I believe are really just in the nature of clean up. Oh, excuse me. This is a

Paragraph #42 was added at the Committee's request. joint and several borrowing facility.

It is possible that some

of the Debtors may borrow funds under the D-I-P facility and have other Debtors repay those funds. There is a substantial

overlap among the Debtors as to how they're jointly and severally liable on many of the Debtor's credit agreements prepetition, but not entirely. And the Committee quite

properly raised a question as to whether or not if one Debtor borrows the money and another Debtor repays the D-I-P money shouldn't there be a right of contribution that's entitled to an administrative priority? D-I-P Lenders didn't care. the order. The Debtors agreed with that. The

And so we added this paragraph to

It really is part and parcel of the same thing that

was included in the Cash Management Order at the outset of the case. To the extent they're intercompany borrowings they're

entitled to an administrative priority. And that is it as far as the Committee is concerned. should report to the Court that negotiations continue. In I

24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 fact, there's a meeting of the D-I-P Lenders Credit Committee this morning about providing additional availability under the Debtor-In-Possession credit facility. have $50 million of availability. that facility this week. Presently the Debtors

They expect to start using

We are hopeful, optimistic, and if

the sun shines on the D-I-P Lenders Creditor -- Credit, not Creditors Committee, Credit Committee, this morning that facility should be expanded. We think it important that it be

expanded in order to allow sufficient liquidity to make sure the Debtors can get to the sale of the servicing business. THE COURT: Well, the five-day forecast I saw in the

news this morning looked pretty good. MR. LOGAN: Good. It's beautiful today. So all I

really care about is today, I hope, Your Honor, because hopefully the sun will continue to shine today and we'll get the good news there. be done. The facility does provide that that can

The Creditors Committee -- Creditors Committee is on They understand the process. And we're

board with that.

hopeful that there will be some additional liquidity opened up. There were two objections we received, Your Honor. They're a little bit old now because this was -- they were filed before the April 24 hearing. One was an objection filed

by Morgan Stanley, and they simply wanted to make sure that some of the very artful language that was put into the Interim Order continued on into the Final Order. It does. We provided

25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 them a copy of the redline of the Order, and I think that they are satisfied. They should be satisfied because it's verbatim

what was in the old order. Second, Goldman Sachs raised an issue that really doesn't relate to the D-I-P loan. They had four loans that were

financed with New Century Warehouse Corporation, the company also known as Access Lending. And those loans were shown to

New Century Mortgage Corporation, one of the Debtors, as a possible take-out investor, and Goldman Sachs raised a question as to whether or not those loans had been returned to them. They initially had -- New Century Mortgage Corporation decided not to take out the loans, and so the loan papers should have been given back to Deutsche Bank, which is the custodian for Goldman Sachs. Goldman Sachs initially said they couldn't find the loan files for four of them. By the time of the April 24 hearing We checked

they'd found two, so the issue was down to two.

with the folks at Access Lending and they think they sent all four back to Deutsche Bank and sent tracking numbers to Goldman Sachs. So I think that issue's resolved. But even if it isn't

it doesn't have anything to do with the Debtor-In-Possession facility for -- we're not purporting to grant liens on any of those loans to the Debtor-In-Possession Lenders. So those are the objections. If the Court prefers, I

could make a proffer very similar to the proffer we made at the

26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 reading. first hearing. Mr. Mondava is here again. About the need for

the D-I-P facility, quite frankly, I would suggest, given the absence of any objections to the substance and the Creditors Committee's endorsement of the proposal that we take judicial notice of that prior proffer. But if the Court or other

parties disagree I'm more than happy to go forward. THE COURT: I see no need to repeat the dramatic

I'll consider that as -MR. LOGAN: It's scintillating, Your Honor.

(Laughter) THE COURT: MR. LOGAN: THE COURT: I don't know, I was here. Yes. I'll consider that as part of this

record, but ask whether anyone else cares to be heard? MS. SCHWEITZER: Your Honor, good morning, I'm Lisa

Schweitzer from Cleary Gottlieb Steen & Hamilton for Goldman Sachs Mortgage Company. I am -- we do not have an objection to

the D-I-P Order being entered as it is based on the representation of Mr. Logan on behalf of the Debtors that the two loans in dispute are not being pledged. But obviously

reserve our rights with respect to everything else he said. The tracking numbers and other information were provided to us like midnight going on Saturday. dig into the facts. So we haven't had any time to

But as long as everyone's clear the loans

are not being affected by the D-I-P Order it's not an issue for

27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 today's hearing. THE COURT: MS. KELBON: All right, thank you. Good morning, Your Honor. Regina Stango

Kelbon from Blank Rome on behalf of the Official Creditors Committee. Mr. Logan has accurately stated the changes that

were made in the order, and the Committee was appreciative of the adjournment of the D-I-P Lender and the Debtors from the April 24th hearing because we did use that time to get comfortable with the facility, the necessity, the fees. As Mr.

Logan mentioned, traunch B was never activated by the deadline. So the only thing remaining for the Debtor is the second half of traunch A, which we are hoping today that the D-I-P Lenders will activate so that the Debtor will have further liquidity. But having said that we are in agreement and in support of the D-I-P financing facility. THE COURT: MS. KELBON: THE COURT: MR. RILEY: THE COURT: MR. RILEY: Thank you. Thank you, Your Honor. Does anyone else care to be heard? Yes, Your Honor. Yes, go ahead. My name is Jack Riley. I'm the Trustee

for the Rose Townson Trust at PO Box 13474, Spokane, Washington, 99203. 509-216-6080. 99213, excuse me. My phone number is First I'd

And my fax number is 509-326-4891.

like to apologize for not being able to find a Delaware

28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 attorney on such short notice, as I'm representing myself and the trust. And I didn't receive a notice of the Court

Bankruptcy from my attorney until the 26th of April. I've written out a -- if the Court would allow me to, I've written everything down here as best I can, as I'm not an attorney. But if I could read it to you. THE COURT: Well, tell me first whether you are

objecting to the entry of the order that's been presented to the Court? MR. RILEY: Yes, I'm objecting to the order. The

Rose Townson Trust had a prior lien before New Century took out a lien on a piece of property belonging to Darryl Johnson and Sally Arnay at 4223 South Madison Road, Spokane, Washington, 99206, and the Rose Townson had an existing lien prior to New Century making a lien to -- making a loan on the property, which their New Century title insurance company failed to notify New Century of the Rose Townson Trust existing lien. New Century has recourse to go back at their title insurance company for the amount of their lien, as far as I can understand. And on August the 20th -- August the 3rd the

Townson Trust filed a request for the determination of summary judgment adding a first priority lien in relation and the real estate of Darryl Johnson and Sally Arnay with Judge Patricia C. Williams, U.S. Bankruptcy Court Judge, Eastern District of Washington, bankruptcy case #05-09692-PCW-13. Adversary

29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 proceeding #06-09692-PCW-13. Based on the Court's own ruling

on the Plaintiff's motion for summary judgment on September 22nd, 2006, it is hereby ordered Plaintiff Rose Townson Trust has the first priority lien in the real estate. On October 6

of 2006 attorney Daniel J. Gibbons of law office firm of Paine Hamblin Kaufman Brooke & Miller in Spokane, attorneys for New Century Mortgage. Their address is 717 West Sprague Avenue,

S-P-R-A-G-U-E, Suite 1200, Spokane, Washington, 99201-3505. Phone #509-455-6000. They filed a -- the attorneys -- their attorneys filed a statement of appeal, a notice of appeal, an election from the Bankruptcy Courts order granting the Plaintiff's Motion for Summary Judgment, docket #88, heard by the District Court. Case #05-09692-W-13. New Century filed a Chapter 13. On October 26th the Rose

Adversary proceeding 06-80040.

Townson Trust attorney, Scott R. Smith of Stampa Root Spockman Smith in Spokane, address 720 West Boon Avenue, Suite 200, Spokane, Washington, 9201. case #05-09692-W-13. Phone #509-326-4800. Bankruptcy New

Adversary proceeding #06-80040.

Century Mortgage memorandum in support for stay pending appeal for posting supersedes bond in the amount of $612,591.21. THE COURT: Mr. Riley, excuse me for interrupting,

but what I'd like you to tell me is why you are objecting to the entry of the order. MR. RILEY: Well, we're objecting to the order -- in

30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 other words, our lien was priority lien before New Century made the loan to these people. And they have appealed Judge

Williams’ ruling that we were allowed the case, and let me read this to you. THE COURT: MR. RILEY: THE COURT: MR. LOGAN: No, don't read anything else. Okay. Let me hear from the Debtor. Your Honor, nothing in the

Debtor-In-Possession financing would adversely or positively or negatively affect anything -- I didn't catch his name, but the person on the phone -THE COURT: MR. LOGAN: made various loans. Mr. Riley. Mr. Riley's talking about. New Century They

They may be subject to first liens.

may be subject to second liens. dispute.

They -- the priority may be in

All the Debtor-In-Possession loan facility does is

grant a lien in New Century's loans, whatever priority they may or may not have, to the D-I-P Lenders. And disputes Mr. Riley

may have concerning the priority of a loan New Century made is an interesting issue, but just not relevant to the Debtor-In-Possession financing. THE COURT: Mr. Riley, do you understand what

Debtor's counsel has just said? MR. RILEY: Yes, but if he let me finish -- it's --

Judge Bonnie R. Sucal, United States District Bankruptcy Judge

31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Mr. Riley. MR. RILEY: THE COURT: MR. RILEY: THE COURT: MR. RILEY: THE COURT: Okay. But the point -The parties raise -Mr. Riley? Yes. The point of it is that if you're for Eastern District of Washington ordered a stay in the case that says, "Before this Court is the parties joint oral request to stay this case in light of New Century's April 2nd, 2007 filing for bankruptcy in the District of Delaware. case #07-10416. THE COURT: I know what the case number is, Bankruptcy

involved in litigation outside of this Court which has been stayed by virtue of the bankruptcy filing, two things. One,

there is a method that can be employed to ask this Court for permission to let that litigation proceed. But secondly, the

point -- and I guess what's before me today is the question which you raised of whether the orders I'm being asked to enter with respect to the financing in any way adversely affects the priority dispute that you have, and it does not. So if that's

the basis for the objection, and again, it's an oral objection, I've seen nothing in writing, I will overrule it. Now is there some other ground upon which you think this order should not be entered?

32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 attorney. THE COURT: MR. RILEY: Well, you may need to employ one. I can't find one is my problem. I've It MR. RILEY: Well, according to the -- Judge Sucal it

says the Court -- that this litigation cannot forward until the automatic stay of proceedings in bankruptcy -- pending bankruptcy is lifted. THE COURT: And according -That may be correct. And there is a way

for you to come to this Court and ask that the stay be lifted. MR. RILEY: THE COURT: counsel about. MR. RILEY: I see. But I don't have a Delaware Okay. But I'll leave that for you to consult

tried and they're all tied up with this Chapter 11 case. says -- one more thing.

It says, "According to the parties

joint motion for stay is granted the case shall remain stayed until such time either party files a motion to lift the stay." Hello? THE COURT: MR. RILEY: I'm here. Oh. And what we're -- what I'm concerned

about is that if New Century files -- has a sale of that piece of property or the lien on it, their mortgage, where do we stand as far as our lien is concerned? THE COURT: Well, again that's something about which

you should consult counsel, but the rules would require that if

33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 New Century were to undertake a -- or a transaction or request relief from this Court which would affect your interest you would receive notice of that. But again, under the

circumstances I encourage you to consult counsel, and if you wish to move forward with requesting relief from the stay there is a way to do that. And again, if you're doing so on behalf

of the trust you must do so with the aid of counsel. MR. RILEY: I see. And would my attorney here in

Spokane tell me how I could do that or -THE COURT: Well, I don't know what your attorney

knows about bankruptcy, but I'm sure there are plenty of competent bankruptcy counsel somewhere near you. MR. RILEY: again, Your Honor? THE COURT: Okay, now this is -- what is this called It's to lift the stay or -Yes, you need to file a motion asking for

this Court to lift the stay. MR. RILEY: THE COURT: Ask the Court to lift the stay. And it may very well be that under the Now I'm not saying that it

circumstances the Debtor may agree. will or it won't.

But it's not unusual to have such disputes

resolved outside of this Court. MR. RILEY: THE COURT: I see. But that's not for me for here today.

Anything further, Mr. Riley? MR. RILEY: No, that should complete it.

34 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: MR. RILEY: THE COURT: Thank you, sir. Thank you, sir. Does anyone else care to be heard in

connection with the D-I-P Order? ALL: (No verbal response). I hear no response. Your Honor, did I hand up the order? You did. And I've signed it. All right,

THE COURT: MR. LOGAN: THE COURT: what's next? MS. UHLAND:

Next, Your Honor, we have the Debtor's

motion to approve the sale of their LNFA and certain residual assets. THE COURT: outstanding? MS. UHLAND: Your Honor, we delivered our proposed Which of the objections are still

language to resolve the State of Ohio objection to the State of Ohio last week. We have not heard back from them either way.

But based on our prior conversations we understand that that resolves their objection. Your Honor, we received -- the objection from the Creditors Committee's resolved. There are objections from the -- objections H and I, which are objections from certain Texas taxing authorities. We have

contacted them and informed them that there's no tangible personal property located in Texas. That's been transferred so

35 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 night. like. MS. UHLAND: If you would, Your Honor. I believe objection. THE COURT: Told they were filed late on Friday I'll hand you my copies if you'd I do not believe they are further pressing those objections. And with respect to the National City objection, we are not transferring any of their -- the property listed in those schedules. The United States Trustee filed earlier objections with respect to the sale at the time of the bid procedures. We've

included some language and now some additional language, and I believe that some of it was being reviewed this morning by the Purchaser. agreed to. I'm checking to see whether that had been finally So with those final agreements and language the

United States Trustee's objections are also resolved. So my understanding, Your Honor, is that there are no objections being pressed to the sale. THE COURT: just came in? MS. UHLAND: Your Honor, I'm not sure I saw that What about Maricopa County filings which

Not on the agenda.

since we're not selling any personal -- or tangible personal property, that's I believe in Arizona -- we're selling only loans. We're not selling any of the foreclosed properties as a That we could make the same

result of the loans.

36 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 representation that we could to the Texas taxing authorities that no tangible or real personal property in Arizona is being transferred in accordance with the sale. THE COURT: Okay. And it seems to me the objection Okay. Any -- before you proceed,

is directed to that issue.

let me just ask our -- would any of the objectors, or prior objectors, care to be heard? MR. POWER: Your Honor, real briefly, Mark Power for Your Honor, first of all, we'd be

the Creditors Committee.

remiss if we didn't complement the Debtor and the professionals in the auction that occurred last week. run and highly professional in our view. The Debtor worked well with the Committee and we were able to resolve all the issues we raised in connection with the original Asset Purchase Agreement. There were a number of It was very smoothly

provisions that were of concern to us, and the final bidders were able to negotiate in good faith and resolve every one of those issues. So we can withdraw our objection.

Your Honor, I can report to the Court that there was lively bidding at the auction. evening. It lasted pretty much up to the

And that the Committee was very satisfied that the

results of the competitive bidding and the good faith nature of the bidders that the results achieved today represent fair value. And this is the maximum value for these assets. So the

Committee withdraws its objection and supports the sale.

37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: MS. UHLAND: Thank you. Thank you, Your Honor. Your Honor,

we're seeking approval today of the sale to the winning bidder, Ellingin -- I'm sorry. Ellington Management Group, LLC for a The purchased assets, as we

purchase price of $58 million.

previously described, consist of approximately 2000 loans owned by the Debtor. Refer to those as loans not financed anywhere. Some

And certain residual interests and securitization trusts.

of these are net interest margin interest, and others are other types of equity residuals. As we described previously at the prior hearing, these assets were difficult for the Debtors to sell prepetition because of the fact that the loans that we're discussing are loans that are frequently lower quality loans. They've been --

either have a documentation issue or for some other reasons have come back into the Debtor's possession. And with respect

to the residual interests that were being sold, some of them are later in life, and also certain of those have documentation issues. Since the Court approved the bidding procedures the Debtors and Lazard engaged in a continuing marketing process, and set the bid deadline pursuant to the procedures as revised as April 30th. The Debtors received five qualified bids. They

received those qualified bids from Countrywide Home Loans; DB Structured Products, Inc.; Credit Based Asset Servicing and

38 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Securitization, LLC, which we refer to as C BASS; Ellington Management Group, LLC; and a joint bid by GMAC Residual Funding Company, LLC, and Oakhill. After those bids were received the

Debtors working with the Creditors Committee analyzed the bids, as well as the proposed forms of asset purchase agreements received by each of those bidders. In connection with that process the Debtors worked closely with the Creditors Committee in an effort to resolve the Creditors Committee's objections and addressed their concerns with respect to the asset purchase agreement. On May 1st the Debtors determined that the Countrywide bid was at that time the highest and best bid. That was based not

only on price but also the fact that the Countrywide bid had several document -- or contract improvements from the Greenwich bid, including the following. First, with respect to the hold back amount, that the hold back would apply not only to the designated items in a -previously identified in the Greenwich purchase agreement would in fact -- but would in fact be applied to all of the reps and warranties contained in the agreements. That it would clarify

that any reduction from the hold back amount, or reduction in purchase price as a result of the breach of reps was only in accordance with the agreed percentage -- or the agreed price reduction percentage that applied to the hold back amounts. In

other words, there could not be -- we were in affect tapping or

39 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 predetermining the damage amount with respect to any breach of representation. Further, the Debtors made, and Countrywide agreed to make clarifications with respect to the provisions with the certain residual interests where the certificates had been lost. was the concern by the Creditors Committee there was some ambiguity that there may be some closing delivery requirements while the Debtors did not believe this to be the case with the Greenwich transaction. We clarified that so that it was clear There

that the Debtors, to the extent the certificates were lost, were not required to deliver them to close the sale. With those -- further, instead of a one-year time period on the rep and warranty there is a 90-day period with respect to the effectiveness of the reps and warranties, after which time no claims made on the hold back, the hold back must be returned. On May 2nd, the date of the auction, the Debtors, their representatives, Lazard, the Creditors Committee and its financial advisors all participated at the auction in O'Melveny's offices in New York, commencing approximately 11:30. I will set forth further in a more detailed proffer,

but in essence, Your Honor, over the next 11½ hours there were nine rounds of bidding at which each -- and in each round the economic and noneconomic terms of the bids were announced. after each round of bidding the Debtors, together with the And

40 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Creditors Committee, determined which bid would be the lead bid for the next round of bidding. At the conclusion of that process in the final round of bidding only two bidders remained, Ellington and CBASS. In the

final round the Ellington bid was 58 million, and the CBASS bid was 57.4 million. Thus Ellington was declared the highest and

best bidder, and deemed the successful bidder for the assets, and CBASS was declared the back up bidder. The Ellington and the CBASS purchase agreements contain the modifications previously requested by the Debtors and the Creditors Committee, and were agreed to in connection with the Countrywide bid with respect to the escrow, the hold back amount, the Debtor's representations and warranties, and the clarifications with respect to the residual certificates. In addition, Your Honor, Ellington agreed to allow the Debtors to in affect address some of the issues with respect to the Ohio loans that are the subject, or potentially the subject of the injunction, allowing the Debtors to, if they can, place those loans with -- if they can't transfer the loans to put those loans effectively to Ellington during the 90-day period, provided that if Ellington does not desire to take those loans they may decline to do so but without a reduction of purchase price. Your Honor, based on this record on this bidding the Debtors and the Creditors Committee determined for the

41 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 documentation reasons and overall price that this bid is the highest and best bid and would seek Court approval of that bid today. Proceeding, Your Honor, that an approximately 20% increase over the purchase price, the Debtors will be paying out the break-up fee, or propose to pay out, and the order provides that they pay the break-up fee to Greenwich as previously agreed and set forth in this Court's order. Your Honor, we would propose to submit a -- I'll try to summarize, but brief proffer to provide the appropriate evidence for the findings in the order, and then, Your Honor, walk through the changes to the order to the one originally proposed. THE COURT: All right. Can we take just a

five-minute break before you proceed? MS. UHLAND: THE COURT: (Court in recess) THE CLERK: MR. LOGAN: All rise. Be seated please. Yep. All right, five minutes.

Your Honor, just a very brief update on The sun did

the Debtor-In-Possession financing facility. shine.

The facility has been up sized to $100 million. THE COURT: MS. UHLAND: Very well, thank you. Some good news today. Your Honor, I'd Mr. O'Dowd

like to proffer the testimony of Mr. Blake O'Dowd.

42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 is in the Courtroom today. with Lazard Freres. Mr. O'Dowd is a managing director

Mr. -- he's one of the senior members of Mr. O'Dowd has been involved in He

Lazard's restructuring groups.

the restructuring of troubled companies for over 12 years.

has been the lead banker on a number of major restructurings, including Fruit of the Loom, Kaiser Aluminum, National Energy Group, and Sun Health Care. He's been involved in several other restructurings in and out of Court, including ATA Airlines, Sellatext, Fox Myer Corp., Marvel Entertainment, Simmons Upholstered Furniture and Wireless One. Mr. O'Dowd has a BA from Duke University and an MBA from New York University. Mr. O'Dowd is one of the managing directors with Lazard leading the engagement, along with Mr. Kurtz in representation of the Debtors. Called to testify Mr. O'Dowd would further testify that since the Court approved the bidding procedures that -- with respect to the Greenwich assets that Lazard had approximately six to eight of its employees devoted to the marketing of the assets and the auction and sale process. That they collected a

diligence materials on the assets and established a data room where perspective bidders could review and evaluate those materials. Lazard always initiated communications with parties they

43 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 previously identified as potential bidders such that they contacted approximately 75 potentially interested parties, approximately 40 of which executed -- expressed interest, and 31 executed nondisclosure agreements with the Debtors with respect to these assets. Following the extensive marketing of the assets, Mr. O'Dowd would testify that the Debtors received five qualified bids for the assets, and that the parties -- by the deadline of the April 30th, and that the parties submitting the qualified bids included Countrywide Home Loans, Inc.; DB Structured Products, Inc.; Credit Based Asset Servicing and Securitization, LLC, or CBASS; Ellington Management Group, LLC; and a joint bid by GMAC Residential Funding Company, LLC, and Oakhill. He would testify that after the bids were received the Debtors, Lazard and the Creditors Committee evaluated and discussed the economic terms of the bids as well as other terms and conditions of the asset purchase agreements by the bidders. They also analyzed the methods in which, pursuant to the auction process, they could improve the terms of the asset purchase agreements in both economic and noneconomic aspects and maximized the value of the assets and the recovery for the Estates. On May 2nd representatives of the Debtors, Lazard and the Creditors Committee and its advisor, FTI, the stalking horse

44 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 bidder, Greenwich, and the qualified bidders Countrywide, Deutsche Bank, CBASS, Ellington, and GMAC/Oakhill Venture assembled at the offices of O’Melveny & Myers in New York at 10 a.m. for the auction. Prior to commencing the auction the Debtors, Lazard and the Creditors Committee discussed with Countrywide its initial bid, which was at the time the highest at approximately $49 million, and certain terms of the asset purchase agreement to determine if Countrywide would agree to approve the terms of its agreement. Mr. O'Dowd would further testify that Countrywide did agree to the modifications in the asset purchase agreement, including an agreement to reimburse the Debtors for any servicing expenses commencing on April 2nd and thereafter, a willingness to close without obtaining physical certificates for the lost -- where the residuals -- for those that had been lost. A put on any loans that may be subject to a preliminary Capping all liabilities for claims arising

injunction in Ohio.

under the purchase agreement to the $3 million hold back, and setting the amount of damages for any particular loan that could not be transferred based on the predetermined percentage for the unpaid balance of that loan. The Debtors thereafter

commenced the auction with the Countrywide bid of 49 million and improved asset purchase agreement terms. Mr. O'Dowd would further testify that over the next 11½

45 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 hours the Debtors conducted nine rounds of spirited and competitive bidding during which the bidders would announce the economic and noneconomic terms of their bid. After each round

of bidding the Debtors in consultation with the Creditors Committee would select the bid they deemed the highest and best bid for the assets. Further, each bidder was given the opportunity to pass during a single round of bidding. However, if they declined to

submit a bid in two consecutive rounds of bidding they were required to withdraw. Mr. O'Dowd would testify that frequently there were breaks between the rounds of biddings for the parties to consider the economic and noneconomic terms offered by the highest and best bid in the previous round and to evaluate the bids they could make for the assets. During these periods the Debtors, Lazard

and the Creditors Committee extensively discussed with the bidders the terms of their bid and made suggestions on how to improve their bids. These suggestions often included

improvements to the asset purchase agreements that the Debtors, Lazard and the Creditors Committee believed to be more favorable to the Estate and greater benefits in addition to maximizing the economic consideration for the assets. Over the subsequent rounds of bidding the purchase price and other terms of the transactions were significantly improved, and as one would expect, the number of bidders

46 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 willing to continue to increase their bids and remain in the auction gradually declined. He would testify that in the final round of bidding, the 9th round, only two bidders remained, Ellington and CBASS. In

the final round of bidding Ellington bid 58 million and CBASS bid 57.4 million for the assets. Thus Ellington was declared

the highest and best bidder and the successful bidder for the assets, and CBASS was declared the back-up bidder. At approximately 9:30 p.m. eastern standard time, or it's actually eastern daylight time, I believe, on May 2nd the auction was concluded. Mr. O'Dowd would further testify in declaring Ellington the highest and best bidders the Debtors, Lazard and the Creditors Committee considered several factors, including that 1) Ellington offered the highest overall purchase price of the assets compared to other bidders, 2) the formula and price calculations employed by Ellington resulted in the smallest amount that could be taken from the hold back and effectively deducted from the purchase price, 3) Ellington agreed to the modifications to the asset purchase agreement and the Sale Order requested by the parties which were part of the Estate additional economic and noneconomic benefits. Mr. O'Dowd would further testify that in his opinion throughout the auction and sales process the assets were aggressively and adequately marketed by the Debtor and Lazard,

47 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 and in his opinion the auction was properly advertised and announced, including a publish of notice of the sale hearing and auction in the Wall Street Journal, and Lazard's independent effort to solicit interest from approximately 75 potential buyers. He would further testify that in his opinion the auction that took place over 11½ hours and 9 rounds of bidding involving 5 qualified bidders was well-conducted and caused the bidders to submit highly competitive bids in increasing amounts, and that the efforts of the Debtors, Lazard and the Creditors Committee to encourage bidders to improve their economic terms facilitated the auction process and the submission of improved bids. He would further testify that the parties and the bidders engaged in hard fought and arm's length negotiations at all times, and that at all times the participants in the auction acted in good faith with respect to their bids submitted. Finally, he would submit that in his opinion the Ellington bid is the highest and best bid for the assets, represents the maximum value that could be obtained for the assets under the circumstances, and that a well-conducted sale and auction process took place. He would further testify that the other terms Ellington has agreed to incorporate in the asset purchase agreement provide additional benefits to the Estate and the Creditors and

48 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 further improve the value of the Ellington bid, as opposed to other bidders. That concludes the proffer of Mr. O'Dowd. THE COURT: ALL: Does anyone care to examine Mr. O'Dowd?

(No verbal response). I hear no response. Anything further in

THE COURT: support of the sale? MS. UHLAND:

Your Honor, only, Your Honor, to submit

the proposed Order and walk the Court briefly through the changes. THE COURT: Okay.

(Pause in proceedings) MS. UHLAND: Your Honor, let me confirm that the

final language is actually in the order that I'm about the hand up. (Pause in proceedings) MS. UHLAND: Your Honor, I'd like to walk the Court

through the changes but we received -- we made some finer modifications in response to some language requests from the United States Trustee's office, so we're gonna need to run those and bring this back this afternoon. So Your Honor, what

I would propose to hand up to you is -- oh, I do have a -- I have a blackline with all of those change -- with all the changes, but I don't have a clean right now. THE COURT: Okay.

49 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MS. UHLAND: THE COURT: May I approach with the blackline? Yes. Thank you.

(Pause in proceedings) MS. UHLAND: Your Honor, the first three pages of --

where there's changes simply update to correct to the actual purchaser of the assets is. On page 4 of the blackline we've

included some additional language in paragraph (d) requested by the purchaser. THE COURT: Well, this is proposed as a -- well, I What in the record could you point to

guess a finding of fact. to support that finding? MS. UHLAND:

Your Honor, we have submitted the signed

-- previously connected with the Greenwich asset purchase agreement we have submitted a signed asset purchase agreement where the Debtors have made the representations and represented that they're true and correct. THE COURT: MS. UHLAND: That doesn't do it for me. Your Honor, may I -- as I said, this was Maybe I can have the counsel for

a request of the purchaser.

the purchaser come so we can come up with some proposed language. MR. DURRER: Good morning, Your Honor, Van Durrer,

Skadden Arps Slate Meagher & Flom on behalf of Ellington Management Group and its client funds. We had requested that

there be a finding as to this reference instead of incorporated

50 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 -- instead of incorporating certain provisions of the asset purchase agreement in the record. I believe there was also a

declaration submitted in connection with the initial motion that described that the Debtors were willing and able to close the sale. We didn't had any reps and warranties that weren't

in the asset purchase agreement that were material from what was originally submitted. So I think there is evidentiary

record foundation for this finding. THE COURT: Well, in the absence of objection I think

I gave pretty wide latitude to what the parties suggest I should make as findings. And it may be that they are all true,

but I don't think there's anything in this record that supports that. It's just -- for me it's just a little bit over that

line, that's all. (Pause in proceedings) THE COURT: I'd take a proffer from the Debtor or its

representative in support of that. MS. UHLAND: MR. DURRER: MS. UHLAND: Right. Yeah, that's what we were actually – Right.

(Pause in proceedings) MS. UHLAND: Your Honor, the Debtors have in the

Courtroom today a Mr. Suni Mondava with Lazard, who is very familiar with the asset purchase agreement and the representations made therein by the Debtor. So the Debtors

51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 could at the conclusion walk you through this order, propose a brief proffer of Mr. Mondava to support that. THE COURT: MS. UHLAND: Very well, thank you. Your Honor, proceeding to the next

changes at the request of the purchaser, they're located on page 6. Notably in paragraph (m) representing that its the

market value and in paragraph (o), establishing it's not entering into improper fraudulent purpose. Your Honor, on page 8, paragraph (s) is the language we've addressed with the United States Trustee with respect to the Debtor's privacy policies. Also on page 8 in the operative

provisions, paragraph 4 we've agreed to change empowered from directed. To directed from empowered. Page 10, paragraph 8 to

clarify that persons receiving notice or have actual knowledge are in addition to Creditors of the Debtors requested to take action to release documents as appropriate of the purchase assets. The next -- paragraph 11 on page 11, take a minute to walk through. This paragraph was included again to clarify the There's two

issues with respect to the lost residual interest. parts of this paragraph.

First, the Debtors are the owners of

the certificates of the residual interest, and the -- they are the owners of the record in the registrar's list of holders of the certificates. The first sentence of this is simply an

instruction to the registrar or the indentured Trustee in this

52 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 case, to recognize the transfer and change the name of the owner. The second sentence is designed that if -- to provide

that if there is a -- the purchaser delivers an acceptable letter of indemnity that's acceptable to the registrar that the registrar or indentured Trustee will issue replacement certificates. This is not compelling the issuance of the

replacement certificates, unless this letter of indemnity or similar insurance is in form and substance satisfactory to the indentured Trustee. On paragraph 15, just a further description with respect to the types of liabilities the buyer is not assuming. On page 13 the superpriority provisions previously afforded Greenwich were eliminated and certainly less relevant in light of the break-up fee issues. And then in paragraph 17 there was some clarifications to this language to respond to concerns by the Creditors Committee that it may be too broad. On page 15 some paragraph -- prior paragraph 22 is deleted because of the -- it's no longer relevant if Greenwich is not the purchaser. And then in what is new paragraph 23 is where we address some of the other objections. Paragraph 23(a) addresses the Trustee's concern that this transfer not be in some way inconsistent with new section 363(o) of the Bankruptcy Code.

53 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Section -- paragraph, subparagraph (b) is the language that we delivered last week to the State of Ohio to assure the State of Ohio that defaulted or delinquent loans would not be transferred or sold except in accordance with the existing injunction with respect to the State of Ohio, which requires their consent to transfer delinquent loans. Finally, paragraph 3 relates to -- or addresses the concerns of Deutsche Bank as one of the indentured Trustees to be clear that the residual interests remain subject to the servicing agreements. In other words, we're not stripping away

any obligations or rights, frankly, with respect to the -those interests that are being sold. Paragraph 24 is some language we worked out with the D-I-P Lenders to clarify because there's certain mandatory prepayment provisions that apply in connection with the D-I-P agreement and the sale. There are -- the Debtors, Creditors Committee,

D-I-P Lender have worked to clarify that the efforts of the Debtors to calculate the net cash proceeds resulting from the sale and to provide for their payment as appropriate in accordance with the D-I-P credit agreement. And finally, Your Honor, there's a provision directing the Debtors to pay the break-up fee to Greenwich. Two other, just clarifications, or items to put on the record. The purchaser did want a clarification commitment from

the Debtors that to the extent that the Debtors delivered any

54 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 documentation directing any payments to the D-I-P Lenders directly with respect to these residual interests the Debtors will undertake to correct that and provide a new direction immediately, and we've agreed to do that. Second, Your Honor, in the addition to the changes that I described to -- at a high level to sort of the specific provisions of the asset purchase agreement to address the Creditors Committees and to generally make the bid economically better the Debtors did request and the buyer did agree to include some express document preservation language in the asset purchase agreement that the Debtors have been endeavoring to insure that to the extent there's any regulatory or Federal investigation or any ongoing investigation that we have all documents preserved. Accordingly, Your Honor, what we would propose to do is bring back a clean copy of this this afternoon with the attached executed asset purchase agreement and submit it to the Court at that time. THE COURT: Very well.

(Pause in proceedings) MR. POWER: Your Honor, sorry for the distraction.

We're trying to work through the issue in the, I think (g) in the order regarding the representations. The investment banker

while can certainly testify as to the process and the notice in making sure the highest value was received, cannot testify as

55 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 anyway. MR. POWER: then, because we -THE COURT: You'll -- yes, we're going to, as I said, Okay. Well, can we get a break on that today. today? MR. POWER: Yes, Your Honor, we'll make him available to the actual assets being sold. During the auction there were

several issues raised as to what exactly was being sold and the rights associated with the residuals. Representations were

made to this buyer that certain rights were included with those residuals, and the Debtor I think is comfortable with those representations. The buyer rightfully wants to make sure that

those are accurate today. So since the witness for that specific factual evidence is in California we suggest that we submit an affidavit, if nobody objects today, that would provide basically evidence into the record that the Debtor indeed owns those rights as represented at the auction, so then the buyer is satisfied. And if Your

Honor is satisfied we think Your Honor can enter the order as proposed. That's our current solution. We recognize the

parties can't cross examine, but if nobody objects to that process we think that's appropriate. THE COURT: Is the witness available by telephone

If that's acceptable we can do it that way as well. THE COURT: It's fine with me. Probably simpler,

56 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 adjourn no later than 12:15 and come back like 2:15 I think. MR. POWER: THE COURT: Thank you, Your Honor. Okay. Does anyone else care to be heard

in connection with the proposed sale? ALL: (No verbal response). I hear no response. All right, we'll

THE COURT:

leave the evidentiary record open only for the purpose of taking that one witness by telephone. MS. UHLAND: Okay, Your Honor, thank you very much. I'd like He'll

And we'll bring back the order as well at that time.

to turn this over to Mr. Merchant from Richards Layton. be handling the balance of the matters on this morning's agenda. THE COURT: Very well. Good morning, Your Honor, Mike

MR. MERCHANT:

Merchant of Richards Layton on behalf of the Debtors.

Your

Honor, matter #6 on the agenda is the Debtor's motion to retain the Hennigan Bennett firm as special litigation counsel. Office of United States Trustee raised certain informal concerns with respect to that retention. concerns through an amended Form of Order. We've resolved those Perhaps it's best The

that I approach and hand up the order and I can walk Your Honor through the changes. THE COURT: All right.

(Pause in proceedings)

57 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. MERCHANT: First off, Your Honor, we agree with

the United States Trustee to change the retention from a 327(e) retention to a 327(a) retention. The basis for that change is

that the firm did not represent the Debtors prior to the petition date. Second, Your Honor, there is now a provision in the order specifically disclosing the matters that the Hennigan firm is working on. Specifically the UBS adversary proceeding, the DB

Structured Products adversary proceeding, the Alaska Seaboard Partners adversary proceeding, and then there is potential for future representations, Your Honor, to the extent that 327(a) counsel is conflicted. The Hennigan firm has agreed to file

every 30 days a disclosure with the Court disclosing all matters that they're working on. Additionally, Your Honor, the order makes clear that the Hennigan firm will be paid in accordance with the applicable rules and any orders of this Court, rather than pursuant to the terms of their engagement letter. And finally, Your Honor, there was some language in the original engagement letter regarding the Debtors giving their consent to the Hennigan firm to work on certain matters in the future. The order now makes clear at the request of the United

States Trustee that the Debtor's right to object to any future representations that haven't been disclosed or that may arise in the future are preserved.

58 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Honor. I think that summarizes all the changes to the order, Your Honor. This morning the Hennigan firm did file a supplemental

affidavit verifying that they are disinterested and that they will file additional supplemental disclosures based on further conflicts. THE COURT: Okay. I read the other affidavit. Other

than saying now because the nature of the representation has been changed to a 327(a) representation and that they are disinterested, is there any additional disclosure or difference between that affidavit and the one previously submitted? MR. MERCHANT: No, I don't believe there is, Your

They ran the same conflict check that O'Melveny ran,

that Richards Layton ran, but I think they do claim that they attempted to run additional conflict checks based on the various sales going on and notice to the Creditors Committee, and if there are any additional things that need to be disclosed they will file a supplemental disclosure to that affect. THE COURT: All right. Does anyone else care to be

heard in connection with this application? MR. MCMAHON: Your Honor, good morning, Joseph In connection with the

McMahon for the United States Trustee.

switch of Hennigan Bennett’s retention from a section (e) to a section (a) application, it was important to our office to circumscribe the scope of the retention such that Hennigan

59 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Bennett will be only performing those matters that exist in 327(a) counsel can provide services with respect to. And in

light of that, Your Honor, you know, our rights with respect to existing 327(a) counsel are reserved. Clearly to the extent

that Hennigan Bennett’s employment were to expand to a certain degree perhaps our office will be taking a look at issues relating to existing counsel. THE COURT: ALL: Thank you. Anyone else care to be heard?

(No verbal response). I hear no response. Do you have a Form

THE COURT: of Order for me?

MR. MERCHANT: THE COURT:

I do, Your Honor, if I may approach?

Yes.

(Pause in proceedings) THE COURT: That order has been signed. Thank you, Your Honor. The next

MR. MERCHANT:

matter on the agenda is the Debtor's motion for approval of certain ordinary course professionals procedures. There were

concerns raised with respect to this motion by both the Creditors Committee and the Office of the United States Trustee. I believe we've resolved all of those concerns If I may approach I'll hand

through an amended Form of Order. up a blackline for Your Honor. THE COURT: You may.

(Pause in proceedings)

60 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. MERCHANT: Your Honor, there are a number of Perhaps I

changes to walk through with respect to this order. can go through them one by one.

First, at the request of the

Office of the United States Trustee we've added language that requires all ordinary course professionals to file their affidavits within 30 days of the latter of the entry of this order or the date that they start providing services. Second, we've agreed with the Office of the United States Trustee that all affidavits, including affidavits for the professionals that will be identified on Exhibit-A of the order, will go out on 20 days notice so that the Office of the United States Trustee will have an opportunity to look at the disclosures and determine whether further objection is warranted. Third, Your Honor, as many of the ordinary course professionals are providing foreclosure services relating to underlying mortgage loans we've agreed with the Creditors Committee to add language whereby we'll agree to provide notice to the foreclosure professionals of the sale of any underlying mortgage loans, thereby notifying them that they're no longer providing services for the Debtors, and it will be up to the purchaser of those loans as to whether their services will continue. Fourth point, Your Honor, at the request of the Creditors Committee we've added -- we've agreed to add a cap to the total

61 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 payments to be made to all foreclosure professionals under this order. The cap will be $805,000, absent written consent from

the Committee to increase that cap or an order of this Court authorizing us to increase that cap. Fifth point, Your Honor, is also at the request of the Creditors Committee. We've agreed to add an individual cap

with respect to the all of the other professionals on the order. When I say all the other I mean other than the Each of them will have a $150,000

foreclosure professionals.

cap for the case, subject to increase with the consent of the Committee, or by further order of the Court. Sixth point, Your Honor, at the request of the Creditors Committee we've added a provision making clear that the terms of this order are subject to any further Sale Orders entered into this case. Your Honor, seventh point is at the request of both the Committee and the Office of the United States Trustee. We've

agreed to remove certain professionals from Exhibit-A to the motion. I can identify those professionals very quickly. It's

Gibson Dunn & Crutcher; Howry, LLP; Bout & Titis, LLP; Wildman Harrold; Gardeer Winsule; Hanes & Boone; and Sussman Godfrey. We've agreed to remove them, and to the extent necessary we'll file separate applications to retain those professionals. We've also agreed to remove Shapiro Priceman, LLC from Exhibit-A based on a call from their -- from that professional

62 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that they're actually a member of Fisher & Shapiro, LLC, which is also listed, and therefore they don't need to be listed twice. Based on negotiations with the Office of the United States Trustee and the Creditors Committee we've also agreed to amend the caps with respect to the certain of the professionals, and these cap amendments will be reflected in the revised Exhibit-A that I'll pass up with the clean order. Those amendments are as follows. be reduced to $25,000. $10,000. Mayor Brown's cap will

Rodesal & Anders cap will be reduced to Wolf &

Segrew Mian, PLLC will be reduced to $25,000. Broad & Castle were

Wineman will be reduced to $20,000. reduced to $15,000. reduced to $10,000. $10,000.

Carlton Desanta & Frudenberger will be Crane Catin & James also reduced to Deutsche

The Curtis Law Group reduced to $10,000.

Carrigan & Styles would be reduced to $10,000. Tucker will be reduced to $10,000.

And Rutan &

An additional professional listed on Exhibit-A, Your Honor, is Neil Gerber & Eisenberger. They did work for the

Debtors post petition, but the contact at that firm has since left, and I understand that the Debtors will no longer be using their services. So while they are listed as an ordinary course

professional on Exhibit-A we've represented to the Committee that we will not be using their services any longer. And finally, Your Honor, at the request of the Office of

63 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 comment. THE COURT: Go ahead. I think there was one professional It the United States Trustee a form affidavit of disinterestedness is attached to the revised Order as Exhibit-B. covers all the changes to the order, Your Honor. I think that I don't know

if anybody has any comments, or if Your Honor has any questions. THE COURT: Anyone else care to be heard in

connection with this application -- motion? MR. MCMAHON: United States Trustee. Your Honor, Joseph McMahon for the It's my understanding, and I'd just

like counsel to confirm for the record that proposed ordinary course professionals in two areas of services, specifically providing representation to the Debtor's directors in connection with certain litigation, securities class action litigation and derivative suits brought against the company prepetition, as well as services relating to the Audit Committee's investigation of the prepetition accounting and financial statement irregularities that have been well publicized with respect to New Century, professionals providing services in those two areas have been removed from the ordinary course professionals list. MR. MERCHANT: Your Honor, I can respond to that

MR. MERCHANT:

that was listed on there that falls into those categories.

64 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 of Order? MR. MERCHANT: I do, Your Honor. The revised list of was unintentional, by mistake, and has since been removed. THE COURT: MS. KELBON: Official Committee. All right, thank you. Regina Stango Kelbon on behalf of the One other representation that the Debtors

have made is that none of the professionals listed on Exhibit-A perform work solely in connection with the mortgage origination platform since that has been shut down and is -- there were no bids received by the bid deadline. the -- our understanding. MR. MERCHANT: THE COURT: So those also are part of

Thank you, Your Honor. That is correct, Your Honor. Does anyone else care to be

All right.

heard in connection with this motion? ALL: (No verbal response). I hear no response. Do you have a Form

THE COURT:

professionals, with the appropriate professionals taken off and the caps revised is Exhibit-A. of disinterestedness. THE COURT: Thank you. Or I should say 327(a) affidavit, Your Exhibit-B is the form affidavit

MR. MERCHANT:

Honor, not disinterestedness. (Pause in proceedings) THE COURT: That order has been signed. Thank you, Your Honor.

MR. MERCHANT:

65 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. HUSTON: Good morning, Your Honor. May it please

the Court, Joseph Huston of Stevens & Lee on behalf of the Movants in -- on agenda item #8, which is the Emergency Motion of certain deferred compensation Beneficiaries for an order directing the United States Trustee to appoint a separate committee for those Beneficiaries. With me today is our

co-counsel Robert Keach of the Bernstein Shur firm from Portland, Maine who has been admitted pro hac vice. The -- we filed -- the original objection deadline was set at noon on Thursday, and because of the Committee's involvement in the auction process we agreed to extend the Committee's deadline until 4 o'clock that day. They filed that day. We

filed a response late on Friday, and we had a copy delivered to Chambers. Did Your Honor get it? THE COURT: MR. HUSTON: This morning. Forgive me on that. We did our best to

get it in early enough to hit the agenda, and we were defeated by the technology gremlins, which were hard at work on Friday. That explains the lateness. And we have additional copies here

if there's anyone in the copy that wishes a copy of that. Mr. Keach will handle the presentation, Your Honor. And as my

namesake found no room at the inn, there is no room at the inn today. So I'll sit back in the gallery, unless Your Honor Thanks. Thank you, Mr. Huston.

wants me to do something else. THE COURT:

That's fine.

66 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. KEACH: Your Honor, Robert Keach from Berstein

Shur for Mr. Schroeder, et al., the former employees and plan Beneficiaries, with respect to the New Century Financial Corp. deferred compensation fund. As Your Honor is aware, we filed

our 1102 Motion only after an unsuccessful attempt to seat a Beneficiary on the Official Committee, and then to interface with the U.S. Trustee's office in the hopes that the U.S. Trustee's office would appoint a Special Committee of Beneficiaries without the need for coming to Court. certainly don't fault the U.S. Trustee's office. moving at an incredibly rapid pace. We

This case is

I think we just ran out of In any event, Your

time, I hope, in terms of our exchange.

Honor, I won't summarize our entire motion or our entire reply memorandum. I would start by saying, Your Honor, that we do have one witness present. I'm prepared to proffer that witness'

testimony or to put him on live, whatever the parties prefer. He is Mr. Martin Warren. He's a former employee of New Century

Mortgage, and a plan Beneficiary. Before I get to that proffer, Your Honor, what we have offered both in the original motion and in the reply memorandum is to establish that these Beneficiaries have a more than colorable claim to the plan assets, that notwithstanding the contentions of both of the -- Official Committee of Unsecured Creditors primarily, and the suggestion by the U.S. Trustee's

67 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 office. This is not an issue where the Estates or un-Estates entitlement to these assets is clear. litigated. the issue. We think it will be

If the Beneficiaries have the capacity to litigate Because we believe that this plan is not a

so-called top hat plan under ERISA, and that these assets are in fact being held in trust for the exclusive benefit of the Beneficiaries. We don't expect that the Court is gonna rule on That is a fact intensive inquiry. But just on

that issue today, of course.

It will require more discovery than we've taken.

the informal disclosures that we've gotten from the Debtors, and I commend the Debtors on their cooperation in getting as much information out to us as was feasible, given the track of these cases, but based on that information alone it is apparent that there are serious issues as to whether or not this plan is a top hat plan, and serious issues as to whose assets these are. That, however, is not the only issue upon which the Beneficiaries need representation, and we believe need an Official Committee. Even if the Beneficiaries were to lose

that issue, Your Honor, the Official Committee could -- and I would hasten to add I think the obvious, and that is that the Official Committee opposes the Beneficiaries on that issues. We are diametrically opposed on the issue of ownership of the assets. Even if we were to lose that issue, and we certainly

68 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 don't expect to, there are serious issues that limit the Official Committee's ability, or any other party's ability to represent these Beneficiaries, all of whom are now former employees after last Thursday. The access of any Creditors to plan assets, even in the case of a top hat plan, and even in a case of a properly functioning rabbi trust is a function of the trust language itself. This trust language, and we attach copies of the trust

to our papers, this trust language says very clearly that the only invasion of the trust assets in the event that insolvency is found and the trust otherwise operates the way it's supposed to operate, is for general Creditors of New Century Financial Corp. I don't think any of us knows sitting here today who those Creditors are, because I certainly haven't seen consolidating statements, as opposed to consolidated statements and 10Qs. I

don't think we know -- I don't specifically know, I'm sure the Debtor may know by now, but we've had no disclosure of what obligations New Century Financial Corp. has as opposed to its affiliates, whether those are contingent or liquidated. And

whether or not they're in the forms of guarantees or otherwise. But it may be that the universe of general Creditors of New Century Financial Corp. is far smaller, and just based on the disclosures and the 10Qs it would apparently -- it'll obviously be far smaller than all of the obligations of all of

69 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 these affiliates. Our position is that even if we lost the top

hat issue the only Creditors we share with are general Creditors of New Century Financial Corp. General Creditors has

been defined in the Molina decision, in fact as a common definition, to mean only Unsecured Creditors, Your Honor. not Secured Creditors with deficiency claims. The Warehouse Lenders, to the extent they have claims against New Century Financial Corp., and again, I don't know that they do, I don't know that anybody other than the Debtor know that at this point, we believe will not share in those assets even if we lose. That is not an issue upon which the The Committee is a fiduciary for And

Committee can represent us.

all of the Unsecured Creditors of all of these Estates, given that it is a unified Committee in a multiDebtor case, and it cannot take the position that the assets are limited to a particular group of Creditors. Your Honor, I think it's

obvious the Debtor can't protect us on that position either. For that very same reason there may be issues, for example, like substantive consolidation where we will be diametrically opposed to the Official Committee. With respect to the issue of the Warehouse Lender's claims and who they're against and what they are and what size they are and whether or not they've properly exercised their rights, this is an issue we care very much about to the extent those are Creditors of New Century Financial. It is an issue that a

70 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Creditors Committee dominated by Warehouse Lenders would find very difficult to address it seems to us. So there are issues

that I think make it apparent that the Committee cannot represent us. And that no other party in the case can

represent these interests. If one were to look at the 1102 factors, Your Honor, this is certainly a large, complex case. I don't think that's

necessarily a determinative factor, but I think also in the -when one is looking at nature of the case as a factor, you also have a look at other factors like the velocity of the case. Like whether or not it's a liquidating or reorganizing case. In a liquidating case where you now have over 500 Beneficiaries of this plan, you have well over 3,000 former employees, about 2,000 of which I understand were laid off last week, employee interests are substantial. And in this case if one looks at

the declared liquidating unsecured claims from the original top 50 list the Beneficiaries with $43 million of contingent potential claims in the aggregate are one of the largest interests in the case. With respect to the factor of groups of Creditors and their interest, Your Honor, you have very different interests between the Beneficiaries, obviously, and the Warehouse Lenders on the Committee, and the other members of the Committee. We've already pointed out the very serious issues of difference with respect to the critical issues to the Beneficiaries.

71 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 With respect to the composition of the Committee, as the U.S. Trustee's response points out, these are substantially financial institutions, but more importantly, that issue goes to whether or not we're otherwise represented on the Committee. We're not. And if one looks at virtually every case that was

sited by the Official Committee and by the U.S. Trustees's office in opposition the Winn-Dixie case the Enron case, Dana, in Gardenridge, in every one of those cases the moving class already had representatives on the Official Committee. And the

issue was whether or not there were intracommittee conflicts that prevented those Committees from functioning, and the issue was whether or not those parties would be outvoted. This is an

issue where we even get a chance to be outvoted, Your Honor, but not at the table. THE COURT: Well, are you suggesting that if the U.S.

Trustee were to add the Beneficiary representative to the Committee that that would solve your problem? MR. KEACH: I don't know that it would -- I think it It

might solve our problem in terms of being at the table.

might give the existing Committee some serious intracommittee conflicts. assets. Particularly on the issue of the ownership of the

And I'm not sure, frankly, how a unified -- and with

respect to this issue of substantive consolidation, or joint and several liability. I'm frankly not sure how a unified It would

Committee could effectively deal with those issues.

72 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 certainly be a very difficult governance problem. I've been involved in cases where with respect to intracompany issues, for example, the Committee has been broken into subcommittees to deal with issues like that. And we have

the Revco example of a Committee being bifurcated when there were problems. insurmountable. So I'm not suggesting that it is But it would be difficult. We do think that a

separate Committee of the Beneficiaries is superior, certainly, to the Beneficiaries, and we think probably would operate more smoothly than simply adding us to the Committee. But being

added to the Committee would be better than not being here. The issues that waive to this -- or I should say go to this Court's exercise of discretion, and I'll be brief, because far be it for me to talk to the Court about how to exercise its discretion. THE COURT: (Laughter) MR. KEACH: Well, let me make a couple, Your Honor. Oh, I get suggestions all the time.

The -- we think this is a case and a situation that does cry out for the exercise of discretion to form a Committee. There

are well over 500 -- our belief is there are 570 Beneficiaries, all of whom are potential Claimants, depending on the outcome of the issue over ownership of the assets. They are admittedly

contingent Claimants with respect to monetary claims, but as Dow Corning teaches us, there is no prohibition on a committee

73 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 of contingent claims. of that type. The Official Committee, as I've already pointed out, is going to be opposed to the Beneficiaries on critical issues. We filed this motion as timely as possible, as soon as we were aware we were not going to be on the Committee, and as soon as we were not able to get a timely response from the U.S. Trustee's office, and again, I don't mean that by way of criticism, it just didn't happen. There's also no other effective avenue, Your Honor, for these parties to be represented. It's not at all clear that a And in fact many cases have Committees

503 substantial contribution claim would lie, for example, if the parties were successful in excluding the assets. say that it wouldn't be, but it's far from clear. The -- it is not at all clear, for example, that a contingent fee arrangement could ever be worked out in a case like this that would be effective. It is -- and our witness I don't

will testify, and I'll go through that proffer in a second, it is not likely that even though we have a very large group of Beneficiaries with a lot of money at stake that they would be able to individually or collectively fund their involvement. THE COURT: Well, one question I have is, while there

are some amounts that were listed in the initial motion, I think -MR. KEACH: Sure.

74 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: of Beneficiaries -MR. KEACH: THE COURT: Sure. -- I mean, where do the numbers fall? I -- given the number of -- alleged number

mean, what's -- if that information's in the papers I didn't see it. MR. KEACH: Sure. Actually, we did put some numbers

in the papers to the extent we were able to get them, Your Honor. But let me briefly summarize. The nature of this plan

is that it is very top heavy in terms of the large amounts, but the way you get the large numbers like this, and this goes to our top hat issue, there are a large number of Beneficiaries, in the hundreds, who have relatively small amounts here. I

believe, and I -- we need to get some discovery to back this up, but I believe that half of the Beneficiaries of the plan have amounts less -- certainly less than $100,000, and it may be that an extremely large number of numbers of less than $50,000. I would hasten to point out, Your Honor, that the -- the obvious, but the fact that there is money sitting in trust somewhere also doesn't mean that it's in the pockets of these Beneficiaries. The fact that there is a large amount at stake As

is not a reflection of their individual liquidity.

Mr. Warren would testify, based on his efforts in attempting -and the efforts of others in attempting to organize this group

75 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 of Beneficiaries, they simply don't have the kind of liquidity that would permit them, even collectively, to fund the kind of litigation and involvement in these cases that's necessary for the protection of their interest. Mr. Warren would testify, and I'll go to the whole proffer in a second, that even though he has over $830,000, I believe, in the plan, that he individually could not afford to fund the kind of involvement that would be necessary to protect his interest. It -- you simply are dealing with a large unemployed population in an industry that is at least partially collapsing. necessarily. There are not jobs for these people to run to, And the obvious, you know, is occurring. And

that is that they need to ration their assets and their funds in order to get to the next job. THE COURT: See, the question in my mind -- and we

are going to break soon. MR. KEACH: THE COURT: I understand that, Your Honor. But to give you something to think about

over the break, on one level the argument made by the U.S. Trustee and the Committee that a Court shouldn't appoint this Committee for the purpose of saddling the Estate with the cost of litigation of the whose-money-is-it issue. agree with that. And I tend to

But that doesn't foreclose in my mind the

other reasons that you've stated for approving such a

76 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 committee. For example, creating a committee that would be If the Court had authority to do that.

limited in its purpose.

And/or saying that fees for certain services would not be compensable by the Estate. And/or limiting on a monthly basis These are the kinds

the Estate's liability for such services.

of things that are going through my mind, and you might want to think about over the break. And you know, it might be that

you've anticipated that as well. MR. KEACH: Sure. Your Honor, we certainly will

think about them over the break, and I understand we're coming close to the time when Your Honor did indicate that a break would be necessary. Let me only add quickly that I think that, you know, this group, and is our firm to the extent we're chosen to be counsel to this Committee, and approved as such, is willing to be flexible with respect to these issues. It may be, for example,

that the existing retainer funds, as modest as they currently are, could be set aside for the litigation point. Whereas

other services might be compensable out of the Estate upon an appropriate application. We certainly don't have any problem We

with submitting budgets or agreeing to reasonable caps.

have no desire to overlap with all of the functions of the Official Committee. And while I know there are cases out there

that say that additional Committees are supposed to be on a par with other Official Committees, other Courts have been creative

77 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 2:15. (Court in recess) THE CLERK: THE COURT: MR. KEACH: All rise. All right. Be seated please. Where were we? break? ALL: (No verbal response). Okay, Court will stand in recess until and we're certainly willing to be creative with limiting the scope of Committees by limiting the scope of what their appointed professionals are able to do. that. We're amenable to

We certainly think that's appropriate under the

circumstances. I'm happy, Your Honor, to do the proffer now, but I see that we're a couple minutes from the break. It may be more

appropriate for me to just start it when we get back. THE COURT: I think it would be. And to the extent

the kinds of things that you and I have just discussed might serve the basis for some agreement, you might want to explore them over the break. make a decision. MR. KEACH: We're -- we have been willing since we If not, we'll have the hearing and I'll

first surfaced, Your Honor, and we remain willing to talk with any constituency here about such issues. THE COURT: All right. Anything else before we

THE COURT:

Your Honor, Robert Keach from Bernstein

78 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 feet. MS. FATELL: Thank you, Your Honor. Bonnie Fatell Before the Shur for Mr. Schroeder and colleagues. I think where we broke, Let

Your Honor, I was about to do the proffer of Mr. Warren.

me start by acknowledging that the parties did take the Court's suggestion. We did have some conversations during the break. We're not in

Some suggestions I think were made by both sides.

a position where I can report that we have reached any understanding, but they were constructive exchanges. I do think that we're at the point where there probably is not likely to be movement on either side, despite, I think, good faith. We're sort of at an impasse, I think. And it's

probably appropriate for us to make the proffer and for the parties to argue the motion. I am prepared to make some

suggestions about containment of cost, along the lines that Your Honor indicated. And I can do that before or after the

proffer, whatever is preferable. THE COURT: Well, I see that Ms. Fatell is on her

from Blank Rome for the Creditors Committee.

proffer is tendered to the Court we'd like to have an offer of proof. I'm not sure where counsel's taking the testimony, and

we think that there are a lot of issues that have been raised in their papers that are not relevant to the hearing today. So

we'd like to hear where -- what's proposed in the proffer if we may.

79 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. KEACH: Certainly. Your Honor, I intended to

have Mr. Warren testify if he were called to testify on really on two issues, and they would be short. The first would be the

efforts to pull together the group of Beneficiaries into some kind of Ad Hoc Committee and to fund their involvement in the case, and the specifics of that and the difficulties in doing that, and the prospects based upon Mr. Warren's direct involvement in that effort for that to continue. That seemed

to me to go directly to the issue of their ability to represent themselves. The second point, and I have a feeling this is the point the Committee wants to talk about, was to simply put in some very limited testimony on the way the plan operated and to whom it was extended. That goes only to this issue that we raised

in the papers that there was a bonafide issue on ownership of the assets. We don't expect that to be litigated today. We

don't expect there to be a decision on that today.

But we did

think it was important to establish that there is a bonafide colorable issue with respect to that. If the Committee wants

to stipulate to that, that i.e., that there's an issue then we can dispense with that portion of the proof. THE COURT: Well, all I'll say on that one is after

having read the papers it sure has to look and feel of an issue. Ms. Fatell? MS. FATELL: Your Honor, we acknowledge that there's

80 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 a dispute. We don't think that this Court needs to hear

testimony as to whether it's a {quote}, "bonafide dispute or colorable dispute." There's a dispute. It exists. And so we

would object to any testimony as to how the plan's been interpreted or how it's been treated, or any of that because -THE COURT: MS. FATELL: THE COURT: And I don't think I have to --- we think that's inappropriate. -- reach it -- frankly, I think on that

aspect of it I just need to make a determination of some identifiable interest. pretty clearly. MR. KEACH: with that then. Thank you, Your Honor. We can dispense And I think the papers demonstrate that

With respect to the proffer on the other

aspects the Beneficiaries’ witness is Mr. Martin Warren. Mr. Warren is, as I said, a former employee of New Century Mortgage Corporation. He has been terminated. Prior to his

termination his last position with New Century Mortgage was that he was in a management position over an office consisting of more than 60 employees. That during the period of his

employment he did make contributions to the deferred compensation plan. In other words, he is a Beneficiary. That

he has himself approximately $830,000 at risk contributed to the plan and remaining in the plan. That Mr. Warren has been

personally involved in the effort to form an Ad Hoc Beneficiaries Committee, if you will. That he has been

81 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 directly in contact with other former employees who are Beneficiaries. He would testify that it has been extremely difficult to pull that group together because of their individual circumstances, the fact that they are far flung geographically, and their own economic limitations. He would testify that he

has been personally involved in the attempt to raise a fund to finance this effort, including litigation over ownership of the assets, as well as participation in these cases on the other issues that are mentioned in our papers. That to date 98

Beneficiaries have contributed enough on an individual basis to form a retainer of just under $38,000. That those

contributions continue at a very modest and declining rate. And that based on his experience that it would be extremely unlikely that funding would continue from individuals with respect to full participation in these cases by the Beneficiaries, and perhaps even with respect to that litigation. He would testify as to his own circumstance, being a party with $830,000 plus or minus at risk, that if there is no collective action either by an Ad Hoc Committee where hundreds, or at least a hundred or more people are making contributions, or an Official Committee that he could not personally fund the kind of participation that would be required to protect his own interest, including litigating the ownership of the assets.

82 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. POWER: Q. Good afternoon, Mr. Warren. I'm Mark Power, I represent That would be his testimony, Your Honor. the issue of representation. THE COURT: MS. FATELL: the witness. THE COURT: MR. KEACH: All right. Mr. Warren is here. Does anyone care to examine Mr. Warren? Your Honor, we have a few questions of We would offer it on

MARTIN WARREN, CLAIMANT'S WITNESS, SWORN MR. WARREN: THE CLERK: MR. WARREN: Martin Warren, W-A-R-R-E-N. Thank you. Thank you. DIRECT EXAMINATION

the Creditors Committee in this case. A. Q. A. Q. Hi Mark. I just have a few questions. Sure. You personally have approximately 130,000 at stake in this

trust? A. Q. A. Q. Actually, I have, as of -I mean, 830,000. Actually as of Saturday I had $942,000 in there. Are you aware of other individuals who also have similar

amounts in the trust?

Warren - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. A. Q. Yes, sir. And approximately how many people is that? Have this sort of dollar amount in here? Yes. Oh, probably maybe a dozen or so.

83

Have you proposed to all those people about contributing

towards the -- defense of the trust position in this case? A. Q. A. Q. Yes, sir. And have any of those people contributed? Yes, sir. Are those all included in the 90 some thousand, that Of the 90 some people who the counsel

counsel -- I'm sorry.

mentioned were interested in participating, are those people all involved in that? A. I don't know if all of them are. Some of them I guess were

laid off on Thursday, so just a matter of communicating with these individuals. Q. So there's approximately a dozen or so individuals who all

have roughly a million dollars give or take -A. Maybe not that many, but you know, between -- I would say,

you know, over 150,000 to -- I think I'm one of the larger contributors at 942,000. Q. So it's somewhere in that range, and there's at least a

dozen in that range. A. Right.

Warren - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q.

84

And your testimony to this Court is that those folks aren't

-- don't have the means to be able to support on their own the defense of their position before this Court? A. Q. Correct. Okay. And have you looked at the personal financial

situation of everyone in that group? A. Q. No, I can't say I have, no. So when you come here and testify to the Court you're

talking about yourself personally? A. Q. Correct. You're not able to testify as to everyone else's economic

situation? A. Q. No, sir. Okay. Let's talk about the steps that you look to in terms

of getting the reputation besides paying your attorney full rates. Have you spoken to any attorneys about doing this on a

contingency fee basis? A. Q. No, sir. Have you talked to any attorneys about doing this on a

class action basis, a class action lawsuit? A. Well, the Ad Hoc Committee is our, you know, our action,

our class -Q. It's not a formal class -- do you understand what a class

action would involve? A. Yes, yes.

Warren - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. You could form a class, create members and then the

85

attorneys could basically be paid out of any recoveries that class receives. A. Q. Are you aware --

We did not do that, no. Are you familiar with the fact that a group of employees

who were just laid off in this case filed an action here as on behalf of a class? A. Q. Yes, sir. And they are seeking to have their position represented who

have similar disputes with this Estate and before this Court as a class action. A. Q. A. Q. Are you familiar with that?

Yeah, based on the WARN Act? Based on the WARN Act -Yes, sir. -- that's correct. But in your case you decided not to go

that route but instead ask this Court to give you special relief and appoint a Committee so your fees can be paid by this Estate separately, is that -MR. KEACH: Your Honor, objection. I think that's

testimony and not a question. MR. POWER: MR. KEACH: I'm asking is that -There's a question buried in that

somewhere but that's not a question. THE COURT: MR. KEACH: Maybe you could -A, argumentative and B --

Warren - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. POWER: MR. KEACH: THE COURT: MR. POWER: THE COURT: BY MR. POWER: Q. A. You elected not to go by class action, is that correct? Well, you know, Mark, we felt that this was our money. I could --- leading -Rephrase. I'll withdraw, Your Honor. Okay.

86

This is the dollars that we individually put into this employee benefit plan. You know, the dollars came out of our pocket, I can show you paychecks for So therefore we

not out of New Century's pocket.

five years of it coming out of our pocket.

felt that it was our money, and you know, unfortunately a lot of these people lost their jobs, including myself. You know, a

lot of those people, including myself, haven't retained or gotten employment, and we want what is rightfully ours. Q. Sir, I'm not questioning that you're entitled to assert If the Court decides you're entitled

what's rightfully yours. to it you'll get it. A. Q. You bet.

My question is the different avenues to get to that point.

One of the avenues that's very legitimate is a class action suit. And in fact that's being done currently, and I'm asking

you whether -- what steps have you taken to look into that avenue as opposed to the current one?

Warren - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 are able. A. the -THE COURT: Overruled. question. provision. MR. POWER: question. MR. KEACH: First -THE COURT: BY MR. POWER: Q. Sustained.

87

Your Honor, objection to the form of the

Let me just -- what steps have you taken to look into class

action suits in this case? A. Q. We have not. You have not. Have you spoken to any counsel, and I may

have asked this but I'm gonna ask it again, about any contingency fee arrangement as opposed to full fees to counsel to represent the -A. Q. No, no, sir. Have you considered whether you might be able to -- strike Are you aware, sir, that there are processes in the

that.

Bankruptcy Code which permit you to seek reimbursement for expenses that are pursued that benefit the Estate? aware of that? MR. KEACH: Your Honor, objection to the form of the Are you

He misstates the actual law relating to that

Your Honor, I'm generally referring to

You may answer, sir, if you

Just, you know, I'll be honest, I wasn't familiar with the

Warren - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 bankruptcy proceedings and the law because I'd never gone through it.

88

Obviously being an employee of New Century now I

know as much as I do, you know, regrettably so, as I, you know, learn more about it. know, your question. BY MR. POWER: Q. But generally speaking, there is a process by which if you I am familiar a little bit about, you

take certain actions and it benefits the Estate you can seek to have those expenses reimbursed. A. Q. Okay. Did you consider pursuing that as a source of recovery in

this case? A. Q. No. So basically the only thing that you and the Committee has

done is basically the current proposal that's set before the Court, is that correct? A. Right. What we've done is we've raised money and we've,

you know, retained the employees that have money into the plan to try to get what's rightfully, we feel is ours. Q. Now, sir, if it’s your view that the trust funds that are

there that are frozen right now belong to the trust and belong to the Beneficiaries -A. Q. Yes, sir. -- would that satisfy the need for the Committee and you

wouldn't need the Committee any further, is that correct?

Warren - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. MR. KEACH: Your Honor. A.

89

Objection to the form of the question,

I don't understand it and I assume --

Well, yeah, I mean, we'll take the money and we'll call it

a day -THE COURT: -- you know. Overruled.

BY MR. POWER: Q. So the goal of the Committee is purely to establish its

rights to the funds in that trust -A. Q. A. Q. A. Q. A. Q. Yes, sir. -- that's -If we -The only reason you're -Right. -- here before the Court today? Yes, sir, absolutely. And it's not really to deal with any other issues in the

case? A. I have nothing to do with -- you know, I -- my office is

part of the class action lawsuit, you know, in regard to the WARN Act, but our goal for this Committee is to just get that money back. Q. And so is it fair to say that your group, the group of

employees, is satisfied with the representation of the Official Committee with respect to their unsecured claim, with respect

90 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 down. A. Okay, thank you, Your Honor. MR. KEACH: Your Honor, I'll briefly close. Because to all of the claims except for the trust fund moneys? A. Q. Just for the trust fund money, correct. And that's where you dispute that the Committee does not

represent your interest, is that correct? A. Q. Yes, sir. Okay. MR. POWER: THE COURT: BY MR. POWER: Q. A. Thank you. Okay, thanks, Mark. MR. POWER: THE COURT: MR. KEACH: THE COURT: No further. Is there any other cross examination? And no redirect either, Your Honor. All right, thank you, sir, you may step Your Honor, can I just have one second? Yes.

I did -- as I said, we did consider Your Honor's suggestions over the break, and let me say that we -- one of the discussions we had with the U.S. Trustee's office, and I've asked the U.S. Trustee's office if there's a problem disclosing this, and he's indicated it's not so let me throw that out. There was some discussion about expanding the existing Official Committee to add -- and I don't want to suggest this was an

91 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 offer, but there was a suggestion that the existing Committee be expanded to add a Beneficiary member and one other member to get to nine, as opposed to having an even number. The Committee -- after consideration the Beneficiary's Committee decided that that -- or the Ad Hoc Committee decided that was not a proposal that we wish to pursue. As we said,

that is a -- we think it's a good second choice, but a very poor second choice to the first choice. Primarily because, as

I said earlier, we think it creates more problems than it solves, both for the Official Committee and for the Beneficiary member. Some of those problems are inherent in being a minority member and we don't argue that those are unique to this case, but there are some special issues. Not the least of which is

the employees who would be likely to serve are management and former management employees who are already possessed of information. It would be very difficult issues in terms of

dealing with, for example, confidential information they already possess. That information is, to some degree, to the extent it's not completely confidential, useful in the pursuit of the remedies they wish to pursue here, and it may in fact inhibit the ability of the people to recover the funds, rather than further it. asset issue. On top of which we don't think this is a single Or a single issue Committee. It's a multiple

92 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 issue Committee along the four issues we talked about. It is,

yes, certainly, first and foremost that they would be able to draw a fence around these funds and have their funds returned to them. But should that fail, and we don't expect it to, but

should that fail there are other issues relating to substantive consolidation, relating to who gets to share, relating to the size of the Warehouse Lender claims that we're particularly interested in and where we don't think that the Official Committee is poised to represent our interests. With respect to cost containment, Your Honor, one set of ideas we had were as follows, and I don't throw these out as absolutes but as suggestions. First is that the work to date

to either get on the Committee or form the Committee would be compensable from the Estate subject to the usual review by filing a fee application, but not be subject to nuc pro tunc analysis. And secondly, that future work for the Beneficiary's

Committee would be compensable in the typical way that fees are requested, other than what we'll call the declaratory judgment litigation work. With respect to the litigation work, the issue Your Honor raised about the Beneficiaries being paid for that work, we would propose that that would be capped. We would cap the We would have --

amount that would be taken from the Estate. that cap would be a hard cap.

We would take the existing

retainer money and also put it towards that effort,

93 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 live. particularly towards things like expenses for experts in discovery and the like. And if that cap were exceeded it would

have to be funded either out of funds of the Beneficiaries themselves or we would reserve rights under 503 and under ERISA’s attorney's fees provision, although there are potential limitations in both of those circumstances. But ERISA does

have an attorney's fees provision for successful recoveries by participants, and I said that in this interest of full disclosure, where it would be paid from the fund itself. But

again, that only works if you win, and it's subject to its own set of limitations that Courts have to apply in awarding those fees. But we would reserve those issues -- our suggestion is And

to have a hard cap on the litigation budget at $250,000. if we go above that we're at risk.

Those are all conditions under which the Committee could I'm sure we could -- we're open to other suggestions

from the Court, and ultimately we'll live with what the Court proposes. But we do think this is a case that cries out for We don't think

representation for these former employees.

they'll be able to represent themselves on this multitude of issues otherwise. Thank you. Thank you. Good afternoon, Your Honor. Again,

THE COURT: MS. FATELL:

Bonnie Fatell for the record for the Creditors Committee. First of all, we'd like to say that we recognize we are dealing

94 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 with former employees. They have sympathetic claims. We

understand that many of them may not have found work since they were terminated by the Debtor. But unfortunately, we can't let

that cloud the judgment and the law that the Court is supposed to follow in terms of whether in fact the Committee, as constituted, adequately represents their interest. And if the

Court finds that it does then that's the end of the question. If the Court finds that it does not the Court then goes to the second question, which is should the Court exercise its discretion considering all of the facts of the case, the burden to the Estate, and a number of other factors I'll get into, and decide that the U.S. Trustee should be directed to appoint a second committee? THE COURT: the inquiry. Well, let's talk about the first step in

And there's kind of an odd dynamic in that

Committees often have members against whose interest the Committee as a whole chooses to act. So that in and of itself

doesn't strike me as a turning point, except that in these circumstances, and the papers that have been submitted in this connection, clearly reflect that while the Committee may very well have, at least initially, made a determination that the funds that are at issue here are, at least in the Committee's view, clearly property of the Estate, this group of interest that seeks the formation of an Official Committee takes a completely opposite view.

95 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 So it seems to me that as a practical matter the Unsecured Creditors Committee is going to be acting adversely, completely adversely, to this group of interest. So while I recognize

that there are often conflicting interests among Committee members, or between a member and the Committee as a whole, it seems to me that in this case this Committee is no friend of this group of Beneficiaries. MS. FATELL: Your Honor, on that narrow issue of

whether in fact this fund is subject to the general Creditors' claims or whether it is a trust fund for these individuals, the Court is correct, we are directly adverse. issue. As to if in fact they are not entitled to that fund then they're general Unsecured Creditors, just like everybody else that the Committee represents. And the fact that they may have That is a single

claims that those funds should not inure to the benefit of all general Unsecured Creditors, and some group may be carved out of that, that's an issue that the Committee, as well as the Debtor, will have to grapple with in terms of proposing a plan of liquidation. In terms of whether in fact there are substantive consolidation issues. deal with it every day. The Committee will deal with that. They

In fact, Your Honor, in the amendments

that were made to the D-I-P Order that was submitted to the Court earlier today, paragraph 42 was added by the Committee to

96 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 specifically address the concerns of the other Estates and the Creditors of those Estates in the event that there were moneys going back and forth between the various entities. So the Committee's very sensitive to that issue, and is very active on all the issues that will affect Committee's -the Creditors getting a recovery in this case. So I don't But

disagree that on that narrow issue they will be adverse. is that sufficient to justify this Estate incurring the expense, the interference, the possible banging heads of

different Committees and so many factions breaking up in this case because there's one single issue that this group of Ad Hoc Committee people believe that they're entitled to pursue, and they believe this Estate should fund their right to pursue that? And that's where -THE COURT: MS. FATELL: THE COURT: Well I think the answer --- we take issue with it, Your Honor. Yes, and the answer to that question I

think depends on step two in the analysis. MS. FATELL: And we think that in terms of whether

they are adequately represented -- all the Committee has done with respect to determining if this is a top hat plan or rabbi trust is look at the documents that have been provided. There's been no discovery. There's been no even informal So the If it turns

discussions or complete production of documents. Committee's going on the face of the documents.

97 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 agreement? out that the Committee is wrong then there will be discussions about that, and we're certainly open to looking at what the law is and what the facts are and determining what that issue is. But on its face the Committee has to take the position, because that’s what the documents say, that upon insolvency those funds are property of the Estate. THE COURT: And what if I were to deny the request What would

for the formation of an additional Committee?

happen to the funds that apparently now exist in some identifiable form, pending some judicial determination about to whom they belong? MS. FATEL: Your Honor, we have agreed with the

Debtor at the last hearing, and I believe with the Ad Hoc Committee, that those funds would remain in a segregated account. We certainly would suggest that those funds continue

to remain in that segregated account until there’s a final resolution. THE COURT: Is there a temporal limitation on that

Has it been embodied in an Order? MS. FATEL: It is. I believe it is in the Order

that raised this emergency hearing. THE COURT: MS. FATEL: Okay. And we would agree that that should

continue in place with respect to that. THE COURT: All right.

98 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MS. FATEL: So, we don’t think that they’re in

jeopardy that those funds are going to be dissipated or distributed to all Unsecured Creditors. Your Honor, there are And And

Unsecured Creditors, as I said, until proven otherwise. all Unsecured Creditors in this case have the same goal. that’s to maximize value. It’s to ensure that there’s

integrity in the process, that all of the assets are being exposed to good faith negotiations and an auction process, to the extent that’s appropriate, to reduce claims so that there’s more money available to go around to Creditors. And we don’t

think that the Creditors Committee -- it’s not aligned with this group of Creditors on all of those issues. this is a single issue. They argue, and they go through a series of arguments as to why their interests are different. They say that this is a We think that

large and complex case, that it’s moving quickly, and that things needed to be sorted out quickly in terms of who wants what and who had claims. concern. The Creditors Committee has that same

We don’t think that that gives any credibility to

there having to be a separate committee, because the Unsecured Creditors Committee is addressing all of that. They say that there are various groups of Creditors with different interests, and that these employees are seeking a narrow issue. We acknowledge that. That’s why we think that They talk

they should not have their own separate Committee.

99 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 about the composition of the Committee not being sufficiently varied. The composition of the Committee was created by the

Office of the United States Trustee after consideration of all of the questionnaires that were submitted, after interviewing various parties that were at the organizational meeting in an effort to be a participant on the Official Creditors Committee. And in the U.S. Trustee’s discretion, they determined that this was a Committee that was representative of all Creditor interests. interest? Is it representative of somebody that has a $40,000 Yes. It may not be of the same magnitude that the

people have who is on the Committee, but certainly they are representing all Creditors. And to the extent that something

enures to the benefit of those holding larger unsecured claims, it also enures to the benefit of those holding smaller unsecured claims. They talk about the –- one of the issues is the inability of the Committee to function. There’s been no question that There are

this Committee is not functioning appropriately.

issues that come up from time to time where there are Committee members that may have a different view than the Committee. There are also some issues that come up where a Committee member has to recuse itself. That’s done all the time. To the

extent that there are issues where there need to be subcommittees formed, again that is done all the time. in every large case, and it’s very effective. It’s done

100 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 On the other hand, to create multiple committees –- and again we just heard that there is a WARN Act Class Action Committee that is acting as an Ad Hoc Committee. If this Court

were to grant this group of employees a Committee, what would be –- there would be no reason for the Ad Hoc Committee for the WARN Act Claimants to come in and argue that they too have a different view, and they’re not represented by the Unsecured Creditors Committee. This case could be burdened with

multiple, multiple committees. And it’s not unlike any other large case where there are divergent interests and there’s one Committee. And the

committee represents all of those Unsecured Creditor interests. So, we wholly dispute that that should be a basis to say that they are not adequately represented. In fact, Your Honor, it For the

is rare and unusual to have additional Committees.

number of cases that they –- there are multiple cases where Committees have been denied. I’d like to just read briefly, if I may, from a Law Review article that, in fact, the Movants cited in their materials. It’s from the Marquette Law Review in the summer of 1990, titled “Creditors Committees Under Chapter 11 of the United States Bankruptcy Code, Creation, Composition, Powers and Duties.” And at page 593 and 594, the authors state, “Adequate

representation exists through a single Committee, as long as the diverse interests of the various Creditor groups are

101 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 represented on and have participated in that Committee. The

Court,” referring to the Sharon Steel Court, which is a Western District of Pennsylvania Court in this Circuit, “noted that the appointment of separate Committees is an extraordinary remedy, and emphasized its concerns that separate Committees often complicate negotiations, add delay to the reorganization process, and add an additional layer of administrative expense on the Debtor’s Estate. The Sharon Court added that separate

Committees and the separate teams of professionals that they entail {quote} ‘rarely contribute to the spirit of compromise that is intended as the guiding star of Chapter 11.’” {close quote}. Your Honor, we think that that is particularly relevant to this case. Committees. have. There will be the potential for multiple This particular committee has one focus that they

It will create a lot of tension if they are on the Then they are within the

Committee, as has been proposed. Committee.

They can raise the issues that they have concerns

with, separate and apart from the one issue we know there will be litigation over. Any other issues that they have, they’re

welcome to and encouraged to raise them to the Committee, and the Committee will consider them and take appropriate action. Your Honor, as far as the testimony that we’ve heard, I beg to differ with counsel’s characterization of it, because the witness conceded that they do have a single issue. That

102 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 their focus is on getting these funds that they think they are entitled to. And that they don’t have an issue with anything Now, I appreciate

else that the Unsecured Creditors is doing.

that the witness is not a lawyer, and his lawyer may have other views, but, Your Honor, this is a single focus. the goal. And this is

And there is no reason why this Estate should fund

this litigation or any other litigation that is adverse to the Estate or to Creditors. There are a whole host, I’m sure, of

issues out there where Creditors are adverse to the Estate. Why shouldn’t they come into this Court and say, “I’m not being adequately represented. fees.” I want this Estate to fund my legal The people who they’re

They have raised some money.

talking about, are people who are at the higher level of income in this company, both former and present employees. And it seems surprising to me that if they believe that they are correct, and this is not rabbi trust, and they are entitled to those funds and that they are not subject to the general claims of Creditors, then I would think that if they’re making income at the level that they are to put in that kind of money into a trust, that they would be able to gather enough resources together to fund litigation. are –THE COURT: I hear in that argument echoes of a D-IAlternatively, there

P Lender seeking to limit the amount of investigation costs that a Committee might incur, and be reimbursed for out of its

103 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 minute. MS. FATEL: THE COURT: Okay. If they win in their position, is it cash collateral or loan proceeds. MS. FATEL: Your Honor, the point I wanted to add is They have not

that they have not pursued other options.

considered coming in for a significant contribution reimbursement. They have not looked at –Well ––- class action, et cetera. –- let me –- let’s talk about that for a

THE COURT: MS. FATEL: THE COURT:

conceivable that the Estate should pay their fees? MS. FATEL: I don’t know why the Estate would pay

their fees if they win. THE COURT: And that’s why 503, I think, goes away

as a potential source of recovery. MS. FATEL: million, potentially. If they win, they’re gonna get $42 It seems to me that that fund should be

able to cover their legal fees. THE COURT: It may very well. All I’m saying is

that if they win, I don’t see how relief under 503 could be granted. But maybe I’m missing something. MS. FATEL: Well, no. The point I wanted to add,

Your Honor, is if they don’t win, and they have their own Committee --

104 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: MS. FATEL: That’s ––- then a) they’re duplicative of the

Creditors Committee; and b) if they do add value, they have an avenue to come in and ask for reimbursement for their expenses. THE COURT: The only way they add value to the

Estate is by losing, it seems to me, arguably. MS. FATEL: Your Honor. Well, I think that’s where we come out, We’re

And that’s what’s so troubling about this.

asking –- we’re being asked by a single group of Creditors to fund litigation that will be adverse to the Estate, and will, if they are correct, enure solely to their benefit. We just

don’t see that the law supports that the Court should exercise its discretion and appoint a Committee for that purpose. you. THE COURT: MR. MCMAHON: Thank you. Your Honor, good afternoon, Joseph I’d like to step back Thank

McMahon for the United States Trustee.

and just go over some of the procedural steps which occurred up to the point of the plan Beneficiaries filing the instant motion. Your Honor, we filed –- excuse me –- our office formed

an Official Committee of Unsecured Creditors on the first Monday in April. And as it’s noted in the motion, Mr.

Schroeder, I believe, submitted a questionnaire on behalf of himself individually, and also on behalf of the Ad Hoc Group, however defined or undefined it was as of that date, for

105 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 representation on the Committee. They came to the table seeking seats on the Official Committee of Unsecured Creditors. that. There’s no question about And

And our office appointed a 7-member Committee.

neither Mr. Schroeder nor any other Ad Hoc Committee members were appointed to the Committee at that time. A few days later, we received a letter from the plan Beneficiaries through Mr. Keach. exhibit to our objection. And it’s attached as an

And that letter requested The idea of getting a seat

appointment of this Committee only.

on the Official Committee of Unsecured Creditors had apparently been abandoned by the plan Beneficiaries. So as is our typical

course of action in these types of circumstances, our office forwarded that correspondence to, and I’ll call it, the Court of Constituencies in the case, the Debtors, the Official Committee of Unsecured Creditors, and also the D-I-P Lenders, and offered them an opportunity to respond to the letter by April 20. I believe that a couple days short of that deadline,

the instant motion was filed prior to our having, I guess, the opportunity to review those responses pre-filing. So, Your

Honor, our paper lays out, I think, what our essential position is on the legal issues with respect to adequate representation and whether this Court should exercise its discretion in terms of appointing a Committee. I’d like to address a few points that the Court raised in

106 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that regard. First, there’s –- the Court in its comments

immediately prior to the break for lunch, suggested that there possibly could be –- draw a distinction between the services that were performed relating to the pursuit of the asserted trust funds, and separate out or to call other case-related services. It is I think at best unclear at this point, Your There are

Honor, whether there would be such unique division.

certainly the –- first, the risk that there would be a collateral litigation initiated by the Committee, if formed, where the bankruptcy case, the main case, could be used as a front with respect to obtaining leverage or addressing issues that really should be addressed in connection with the core is this property of the Estate or not litigation. And issues like substantive consolidation, who gets to share in the proceeds, in the event that there is an adverse ruling, it seems to me, Your Honor, that they really are, as you say, secondary issues to the lead issue of whether or not a Committee should be appointment. And with recognizing that,

Your Honor, given that the Committee is willing to represent today on the record that those funds can remain segregated, presumably pending an up or down ruling on that point, I think that we’ve really taken care of basically, essentially all the purposes that were going to be served by this Committee that Your Honor had suggested could be compensated, or would be, I guess, potentially proper to be compensated from the Estate,

107 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 because there’s no dissipation risk. We’ll have presumably the And the chips will

litigation on that issue will go forward. fall where they will.

The issues of whether the Estate should be substantively consolidated and who gets to share, I mean, I suggest, Your Honor, that in its normal course of operation, the Official Committee of Unsecured Creditors in these large jointly administered cases has a host of representatives from varying Estates, and it routinely deals with the substantive consolidation issue. Meaning that you will have

representatives of one Estate potentially squaring off against the representatives of another Estate, and debate about the issue. And the Committee formation process deriving, I guess, That

the representation of multiple Estates can handle that. is an issue that the Committee can address as it is constituted.

And there’s really no suggestion by the plan Beneficiaries that somehow the Committee, as it’s presently constituted, is unable to address substantive consolidation issues per se. any substantive suggestion simply wouldn’t square with the history of practice in this District. So at the end of the day, Your Honor, I think another point to emphasize is that –- is the witness’ testimony. And I And

found the end of the questioning to be rather illustrative as to really what’s going on here and how Your Honor should weigh

108 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the so-called –- the other services, or the collateral services in deciding whether or not to exercise its discretion in appointing a Committee. about the money. The witness clearly said that this is

Meaning whether we get our money or not.

And, again, any issues involved on the case with respect to substantive consolidation or who gets to share, simply is secondary to that consideration. So based upon the evidentiary record which was developed on cross examination by counsel for the Official Committee of Unsecured Creditors, I think there’s a clear basis for supporting the conclusion that the relief that’s requested in the motion can be denied today. Your Honor, one other point. With respect to the proposal

that’s been made, my understanding is that the Committee’s proposal going forward, to the extent that the Court would grant relief, would encompass fees relating work to getting a Committee appointed. And, Your Honor, to be clear, we

categorically oppose the formation of the Committee that’s being requested. But one point I did want to make clear is that if it is –the Committee begins its work when it’s appointed. And it is

far from, I guess, a clear conclusion that a Committee that –I’m sorry, the fees that are incurred by a Creditor or Creditors in seeking to have an Official Committee formed, constitutes a substantial contribution under 503(b). That is

109 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 just simply a side note that I wanted to make in terms of the proposal which counsel has floated. So, again, I think the core legal issues are laid out well in our papers, Your Honor. questions or concerns –THE COURT: Mr. Keach’s remarks. Just one, Mr. McMahon, that I take from Is the U.S. Trustee still open to adding Unless the Court has any specific

to the Committee a Beneficiary representative? MR. MCMAHON: THE COURT: Your Honor, may I have a moment? Yes, you may.

(Pause in proceedings) MR. MCMAHON: Your Honor, in the to and fro of phone

calls during the lunch hour, we did discuss this topic with the Committee’s representatives. that possibility. We are still open to discussing

The problem is we’ve never got to a point of

passing it along to the people that we need to, because it was basically rejected –THE COURT: MR. MCMAHON: THE COURT: MR. MCMAHON: THE COURT: MR. MCMAHON: THE COURT: I understand. –- by the Committee’s representatives. All right. But we are open to the possibility. Thank you. Thank you. All right. Anyone else? Before I go Okay,

back to the Movants here, anyone else care to be heard?

110 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 quickly. briefly. MR. KEACH: Let me just address a few points very

First, the issue of escrowing the funds, while

certainly appreciated by the Beneficiaries –- two points. First, the trust document itself now provides that the funds, even after the point of insolvency, cannot be disbursed without a Court Order –- without the Order of a Court of competent jurisdiction. So while we’re certainly happy to have done that

through an Order of this Court into a concession of the various constituencies, it’s what the trust provides. And –- but more importantly, it does not put money in the pockets of the Beneficiaries. And while it’s easy to focus on

the dozen or so people who have 150,000 up to 8 or 900,000 in the fund, that does not address the dire needs of those people who have, you know, 50,000 or less in the fund and who are now employed –- unemployed, I should say, and now need this money to pay their own mortgages. So, Your Honor, it’s nice to

escrow the money, but these are issues that need to be addressed very promptly. On this issue of expense and interference, while we don’t suggest that no expense is at issue here, what we did indicate was that we capped the litigation amount at 250. we’re open on that. And certainly

The rest of –- you know, we spent I think

in the neighborhood of 50 or $60,000 to get here between both sets of counsel. And going forward with respect to the non-

111 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 litigation issues, I expect those fees would be very modest. And with all due respect to my colleagues in the Courtroom, you know, if that all adds up to 3 or $400,000, that’s not a good day in these cases –- in some cases. layers of expense here. So, we’re not adding huge

We’re talking about fairly modest

expense for the benefit of nearly 600 former employees, most of whom desperately need this money. And the interests of the

typical case dealing with conflicting interest don’t deal with 600 claimants. When you’re dealing with 600 claimants with

claims in the aggregate of this size, you’re usually dealing with retirees or bondholders or other people that are so diverse that, in fact, additional Committees do get formed. With respect to this issue that this will lead to a floodgate of additional Committees, I think, Your Honor, that’s just not likely. More importantly, to the extent they’re

concerned about the WARN Act employees, one of the suggestions I thought about making in the papers and withheld because it’s not really our prerogative, is that certainly this Committee could be the springboard for a Committee of former employees. They will soon constitute in number one of the largest Claimant classes in this case. And it would not create an undue

conflict for us, for example, to have the WARN Act Claimants joining this Committee. That’s not our prerogative. That But that That

would be something for the U.S. Trustee to consider.

doesn’t mean there has to be two additional Committees.

The Court - Finding 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 just means this Committee might expand its scope.

112

In closing, Your Honor, I think it’s somewhat ironic that we have a –- and I mean no disrespect to the financial institutions involved. institutions. I’m sure they’re all wonderful

But we have a Committee consisting, among

others, of Deutsche Bank, Credit Suisse, and Sea Bass, who are financial institutions who unquestionably could afford their own lawyers to finance their interests as deficiency claimants in these cases, arguing that the employees, some of whom have $50,000 or less at stake, should not get any assistance with respect to their legitimate claims in the case. that’s assisting the process. perversion of the process. need this representation. It’s interesting that two –- I think at least two, if not three members of the Committee, either themselves or their affiliates, were bidders at the last auction. I mean that’s I don’t think

I think to some degree that’s a

And that these employees really do

not a typical Committee in any circumstances, unless you’re in a sub-prime mortgage case. But these are legitimate interests

of legitimate employees who are desperately in need of the money. I would submit that if you look at the history and

policy of this section, this is what Congress had in mind when it gave the Court power to exercise its discretion. would ask the Court to do so. THE COURT: Thank you. All right. I’m prepared to And we

113 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 make my ruling now. In looking at the factors that a Court

should consider –- and I don’t think the parties disagree about that –- I look at whether the Unsecured Creditors Committee, as presently constituted, can provide adequate representation to this set of Claimants. There are often disagreements between

or among Committee members, and between those members and the Committee as a whole. This is one of those circumstances in

which the Claimants and the Committee are diametrically opposed. And I don’t suppose as the dispute ensues, that And ultimately it may fall to this Court to But the

that’ll change.

make a determination about entitlement to those funds.

fact that there is this dispute does not, I think as the Code and the law anticipates, mean that within that language, this Committee can’t adequately represent the Claimants. Now, even if that were so, even if I concluded that this Committee could not adequately represent the Claimants, I look at other factors. I look at the cost to the Estate. I have

not changed my initial view -- while there hasn’t been much of a record made in the way of how much it would cost to fund this litigation. I haven’t changed my initial view, based upon the

submissions and now upon argument of counsel and the testimony given, that I don’t think the process was intended to have the Estate fund this litigation issue. It just –- it doesn’t make

sense to me that that should occur, even if there is some difficulty involved with many of the Beneficiaries, at least as

114 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 it’s been alleged, in their being able to afford their own representation. Lots of bankruptcy cases, probably most of

them I see, have lots of Claimants who are owed very small amounts. Yes, it might be argued that Unsecured Creditors Committees are more suited or better suited to representing their interests, unlike the situation here. enough of a situation here to sway me. But that’s not

I don’t think this

case, at least as far as this goes, is particularly complex and requires that there be an added Committee to represent these interests. Nor do I think, necessarily, that adding it would

make the case all that more complex, because of the narrow issue involved. And with respect to the narrow issue involved, the papers are clear that at least right now the issue is entitlement to the funds. And the witness confirmed this. And while I

appreciate counsel’s efforts to say, “Well, there may be other issues which would require a separate Committee,” and there may be, the record made today doesn’t support the creation of an additional Committee at this time. alternatives that might be pursued. has discussed them. There are other And counsel for both sides

It could be that maybe in connection with

the WARN Act Claimants there could be a Former Employee Committee which would deal with the narrow issue and others. And that’s not necessarily an invitation. All it is, is the

115 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Court’s impression and determination that there are other alternatives, including the U.S. Trustee acknowledging that she’s still open to adding a member of this constituency to the Committee. Now, I understand that there may be situations in

which that means if one member is added, there may be a number of seven to one votes. But that's not necessarily unusual in

Committees with divergent interests, and certainly not enough, at least on this record, to tell me that that would make this Committee dysfunctional. So for these reasons, I am going to

deny the relief without prejudice and ask that counsel confer and submit an order under certification which provides for this ruling that I made for the reasons I've stated on the record, and to the extent that the Movants wish to have it, to include a provision that indicates the funds should remain segregated until further order of this Court. about what should go in the order? MR. KEACH: No, Your Honor, and we certainly would Are there any questions

like to continue at the invitation of the other parties the order that segregates the funds until further order. THE COURT: the next matter. All right, thank you. Let's move on to

Or let me ask this, at what point did we want

to do our telephone witness in connection with the sale? MR. HUSTON: THE COURT: MR. HUSTON: Pardon me, Your Honor -Yes, Mr. Huston. -- Joseph Huston on behalf of the

116 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 his voice? MS. UHLAND: THE COURT: I can, Your Honor. All right, lets have him sworn in then. Deferred Comp. Claimants. There are some -- my folks have some At this point, our

travel connections that they need to make. business is concluded. THE COURT: MR. HUSTON: MS. UHLAND: May we be excused? You may. Thank you very much.

Your Honor, I think we can do -I think we can do that

address the Greenwich Sale Order now. rather quickly. THE COURT: MS. UHLAND: Okay.

Hold on one second.

All right, Your

Honor, we now have the original reflecting the changes we discussed this morning. I just want to confirm that we have

Mr. Kevin Dwyer on the telephone. MR. DWYER: MS. UHLAND: THE COURT: Ms. Uhland? MS. UHLAND: THE COURT: Yes, I do. And can you confirm that you recognize Yes, I'm on, Suzzanne. Thank you. Let me just -- do you know Mr. Dwyer,

KEVIN DWYER, DEBTORS' WITNESS, SWORN THE CLERK: Please state your full name and spell

your last name for the Court.

117 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. DWYER: THE CLERK: MS. UHLAND: Kevin Joseph Dwyer, D-W-Y-E-R. Thank you. Your Honor, to facilitate his

testimony, I was going to proffer the contents of his testimony and then make him available for cross and for questions of the Court. THE COURT: MS. UHLAND: All right, go ahead. Mr. Dwyer, who's on the phone, if

called to testify, would testify that he is a Vice President of New Century Mortgage Corporation and has been since September of 2005, and that he is the Vice President with responsibility for the Debtors' secondary market operations. He would further

testify that he is familiar with the Debtors' activities with respect to the sale of its loans, including its loans not financed anywhere, as well as the Debtors' matters with respect to its residuals and sale of those residuals. Mr. Dwyer would further testify that he was involved in the negotiation and documentation process originally of the Greenwich Asset Purchase Agreement, including in that respect reviewing the representations made by the Debtor in connection with the Asset Purchase Agreement and assisting in and reviewing the schedules to the Asset Purchase Agreement prepared by New Century. He would further testify that he has

reviewed the Asset Purchase Agreement proposed to be entered into between the Debtors and Ellington, including the changes

118 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 made by Ellington to the representations that had previously -the Debtor had previously made to Greenwich. Mr. Dwyer would further testify that the representations and warranties of the seller set forth in section -- excuse me, Article 4 of those -- of that agreement are true and correct as of the date made. He would further testify with respect to the

purchased assets that the Debtors own the purchased assets identified in the Asset Purchase Agreement as defined therein, which purchased assets include the defined term "residuals," which means the Debtor's interests, rights and titles to the residuals set forth on the schedule to the Asset Purchase Agreement and the related securitization clean-ups calls to the extent the clean-up calls are held by the owner of the residuals. And that would conclude Mr. Dwyer's testimony with

respect to the accuracy of the representations and warranties. THE COURT: All right. Ms. Uhland, the blackline

Form of Order that I was shown earlier says, "All of the representations of the sellers in the APA are true and correct as of the date hereof," which is the date of the order. heard from the proffer, Mr. Dwyer would testify that the representations were true and correct as of the date they were made. MS. UHLAND: Your Honor, I asked -- I did not Let us -- if we could As I

observe that provision in the order.

just confirm with Mr. Dwyer that they are -- I don’t know if I

119 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 signed. MS. UHLAND: Thank you, Your Honor. can ask a direct question? THE COURT: MS. UHLAND: Go ahead. Mr. Dwyer, are the representations and

warranties in the agreement true and correct as of today's date? MR. DWYER: THE COURT: Yes, they are. All right, thank you. Does anyone else Mr. Dwyer,

care to examine Mr. Dwyer? thank you very much. MR. DWYER: MS. UHLAND:

I hear no response.

You’re welcome, Your Honor, thank you. Your Honor, I now have the final -- the

original of the Asset Purchase Agreement -- I mean, I'm sorry, the Asset Sale Order, if I may pass it up? THE COURT: Yes, you may. I assume others have had

a chance to review it at this point? MS. UHLAND: THE COURT: Yes, they have, Your Honor. All right. Does anyone care to be heard

on the final revised draft of the Form of Order? ALL: (No verbal response). I hear no response. That order has been

THE COURT:

(Pause in proceedings) MS. UHLAND: Your Honor, we'd now like to turn to

the Retention and Incentive Plan Motion.

120 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: MR. MCMAHON: McMahon again. All right. Mr. McMahon? Joseph

Your Honor, good afternoon.

Your Honor, we approach today with a hearing on

the United States Trustee's Motion to Continue the Hearing on this particular motion, the Incentive Retention Plan Motion, scheduled as per Friday's teleconference. And Your Honor

indicated that he wanted to hear the full evidentiary record developed before ruling on that motion. The matter which I

presume I'm being asked to address right now is the fact that as of the time this Omnibus Hearing started at 10 o'clock a.m. this morning, I had not been presented with the latest documentation relating to the negotiated plans in the form they are being presented to the Court; and my understanding is the Court had not either. Your Honor, I received the employee grid, which breaks down by employee what payments the Debtors are proposing to make to the plan participants around 11:15 this morning, and between being at this hearing and getting back to my desk and doing some type of -- conducting negotiations with the plan Beneficiaries' counsel, I will represent to the Court that I haven't had a detailed opportunity to take a look at the paper that I've been presented with. Do I generally understand the

fact that they -- the negotiations proceeded in a manner that the Committee negotiated some additional changes that are presumably favorable to the Debtors' estates such that the

121 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 proposal -- the total amount of dollars proposed to be paid out has been reduced? Yes, I do understand that. But again, if

the question being posed to our office is would we appreciate the additional time to review the plans to discuss them internally, perhaps to communicate with the representatives of the estates regarding the plans, we would. where our office stands on this issue. THE COURT: MS. UHLAND: All right, thank you. Your Honor, briefly just on that issue, There's two That's basically

and I don't -- I'll talk about it a little more. changes that were made to the plans.

One is the continuing

negotiations with the Creditors Committee to provide them concessions. The other reason that the plans were difficult to

change is the plan totals decrease as the number of participants decrease, and we are structuring the plans by pools. The Debtors have continued to lose employees every day,

and particularly after last week's events, lost a substantial number of employees, including eight or nine of the plan participants between Wednesday, when we gave the roster to McMahon, to Sunday night. So keeping that roster updated to

keep track of the people who are being lost is the primary reason that we were unable to get the completed revised roster to Mr. McMahon before today. I'm very concerned that the

Debtors, who are in desperate need of their employees, not be punished for the fact that they, you know, are already losing

122 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the employees that these plans are intended to retain and -and trying to accurately reflect that, and further that we're making economic concessions with the Creditors Committee, something would seem sort of contrary to sort of the purpose the Debtors and Creditors Committee jointly view, you know, the intended purpose of these plans. Those are the two main

reasons, the economic concessions and the loss of participants that flow through the documents that made the documentation difficult to provide. Your Honor, what we would propose to do today is walk through the plans, which in structure are the plans that we filed with the -- the amended plans we filed with the Court on Tuesday. Walk through those plans. And I'd like to provide

the Court with some additional exhibits/Cliff Note versions of the plans, it might be more readable, and explain to the Court the economic changes that we've waled through. But the Trustee's primary objections, as we understand them, are to the linking the plans to incent -- to making sure that the plans truly to incent the behavior intended and are not {quote} {unquote} "lay-ups"; that these plans are necessary to the sale process and are properly calibrated. The Trustee's

other primary objection relates to clarifying the insider status of the participants to ensure compliance with 503. On

both of those points, Your Honor, the Debtors again feel that these plans are unchanged from those filed last week, and

123 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 further, the Debtors intend to make an evidentiary record through direct testimony that Mr. Stern of Richards Layton's going to be handling the witnesses second. So I'd like to take

some time going through the structure of the plans and then presenting both of those issues through the witness testimony. We'll be having Ms. Holly Etlin of Alex Partners testifying on the business need, and Mr. Frank Glassner, who's the Debtors' compensation expert, also testifying on the plan structure. THE COURT: All right, let's do this. I'll allow

the Debtor to proceed in that manner, and at the conclusion of the evidentiary hearing, I'll hear again from the U.S. Trustee. MS. UHLAND: Thank you, Your Honor. Your Honor, to

start, I'd propose to hand up and make available to the parties in the Courtroom a brief summary of the terms of the plan as they currently stand. (Pause in proceedings) THE COURT: MS. UHLAND: THE COURT: Almost on cue. May I approach, Your Honor? You may.

(The Court receives document) THE COURT: Thank you.

(Pause in proceedings) MS. UHLAND: Your Honor, when the Debtors originally

constructed these plans, they constructed them such that the participants in the plans would by motivated to assist and

124 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 participate and maximize value in the Debtors' sale process. Further, with respect to the lower level employees that were participants in the plan, the Debtors proposed to make retention payments. Before getting to these plans that were

filed last week, between the time they were originally filed and the time we filed them last week, we made three important changes to the plan. The sale structure and targets were unchanged as far as the thresholds to meet for the sales. But what the Debtors did

do in light of the previous rulings in this case with respect to the scope of insider status is they restructured what was previously their retention plan to leave in the retention plan a limited number of employees and, instead, created a new incentive plan that would include a broader range of what we might call senior employees that the Debtors did not take a position -- or officers -- but based on ruling in this case and in an abundance of caution, the Debtors re-drew the lines on who should be included in the incentive plan. Further, out of

the Debtors' eight executives originally in the incentive plan, only four executives were included in the new Key Employee Incentive Plan. In drawing the line on who was in the incentive plan, the Debtors included all titled employees at the parent company, NCF, and all titled employees with the title of Senior Vice President or Executive Vice President at the mortgage company

125 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 or other operating companies. Further, the Debtors did a

further review of the Vice Presidents at New Century Mortgage Company to determine if there were any who could arguably be in policy making positions or had any influence over the terms of this plan. Accordingly, there are certain Vice Presidents in

Human Resources and the legal department and finance who were moved, though they had the Vice President title at the operating company, were moved up into the incentive plan to avoid any arguments with respect to their status. Now as constructed, and I'll return back to this -- our term sheet here, we have 33 employees in the incentive plan. This includes six of the individuals who were previously in the wholesale retention plan that this Court approved with respect to the lower level employees for New Century Mortgage. includes, as I had mentioned, four EMC members. It also

Those four EMC

members, as we set out in our papers, include the company's General Counsel, Chief Operating Officer, who's also responsible for the Debtors' intellectual -- the Debtors' IT Department, Mr. Anthony Meola, with whom this Court is familiar as one of the Executive Vice Presidents of the Company, and Mr. Robert Lambert, who's the Debtors' -- leads the Debtors' Human Resources Department. The new revised incentive plan provides for award targets in a range from 10 to 30% of annual base salary. This is the

total amount paid if all three stalking horse bids and targets

126 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 are met, thresholds are met. The targets contribute to the --

or each sale contributes in a different way, and these percentages have shifted as we've continued to make concessions with the Creditors Committee. But in essence, the balance of

the total incentive payment reflects the difficulty of achieving the desired sale. Accordingly, looking at this

second to last bullet point, for the LNFA transaction that was just approved, that would contribute to the total target at 13% at threshold. assets, 45%. million. For the servicing, it's sale, 42%, on the other The target price for these other assets is 32.5

The Debtors did not previously disclose that number

because we were still in the process of collecting or soliciting bids for the loan platform origination business, and the financial advisors requested that we not present a price that might be taken by the market one way or the other. Included in these other assets, then, would be the technology that remains that supported our loan origination platform. To the extent that the sale of the Access business

results in proceeds to the Debtors, that would be included in these other assets, the Access transaction that the Court approved on the 24th. Further, the Debtor has remaining

financial assets, including it's membership interests or their partnerships interests in the Carrington funds, that's separate from the Carrington Servicing documentation, which assets may be difficult to sell and they have transferability issues.

127 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Expressly not included in these other assets because it's not an asset that's going to be sold under 363 is the Debtors' tax refund claim. That's not considered a saleable asset for the

purposes of these plans. The Debtors' second plan is largely a retention plan, except for the very top tiers of employee who have some portion of their compensation tied as well to incentive in order to align those employees with the Debtors' senior management. The

total target -- and this can be a combination of incentive and retention for those in the top tier, is 10 to 25% of base salary. And for these top tiers, approximately 40% is a

retention payment and 60% based on achieving the performance metrics. For the servicing employees in the plan, the retention date is an earlier date, and there are approximately 20 servicing employees out of the 83 in the plan. Those employees

need to remain through June 9th to receive their retention payments, whereas others need to remain through July 9th. The threshold prices work as follows, and it's been, again, another thing that's sort of, I think, complicated the documentation somewhat is the threshold prices are based on formulating a pool that's contributed to the two plans for the incentive payment, and then each participant in a plan gets a set percentage of the amount. And that percentage will be

determined based on when the roster is final, we'll have target

128 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 numbers in there for the dollar amount of award, and then those will all be converted to percentages. The plan is not a pool plan such that if any of the employees voluntarily terminates prior to the award being made, the pool does not increase or remain the same size for the other employees, so we will -- we set these numbers -- we'll set them as of today, but if there are voluntary terminations or terminations for cause, again, these plans -- the total numbers and the expense to the estate will be altered -reduced. So with respect to the Carrington -- I'm sorry, the Greenwich/Ellington transaction, the plan will provide a total funding in both plans at the stalking horse price of 265,234. And then because of the provision that it would allow 2% of the sale price above 47.25 million, the total contribution at 58 million would be -- this is the total, inclusive of the 265 -482-34. We are not paying amounts -- we are not contributing

to the plan and paying to the employees the amounts that are subject to holdback until paid. Accordingly, before the

holdback, only 420-234,000 will be paid. With respect to the servicing transaction, because of the structure of the servicing sale which is based on a basis point as a percentage basis because the number of loans that are subject to the servicing fluctuate and therefore the total proceeds to the Debtor will be determined at the sale price

129 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 based on the audit. But when the Debtors are comparing the

bids to get a better bid, it's really based on a percentage basis for the loans that are being serviced in connection with the servicing rights. Accordingly, the Carrington bid is at a

50 basis points at present, and so the pool that's contributed for the servicing assets is 829,969. Now, the Carrington bid is currently the subject of a -as currently structured also has a cash holdback, so notwithstanding that it's being priced on a basis point mechanism, if there is a held-back amount, the pool will be -the amount will be reduced based on any amounts held back. with a 10% holdback, only 90% of that amount will be paid. Similarly, if we receive a payment -- a bid of 10% greater than the 55 basis points -- I'm sorry, of the bid of 50 basis points -- did I flip my numbers -- 90% will be paid on the current proposal given the Carrington holdback. If the deal increases So

on a percentage basis, the starting amount of the 829 will be increased on the same percentage basis. With respect to the other assets, which are the group I described before, largely the loan origination platform technology and the other financial assets, including the membership interests in the Carrington funds, no amounts will be paid until proceeds reach 32.5 million. As Ms. Etlin will

describe, the disposition process of those is just started and has not even started for some of those assets. Upon reaching

130 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that, the pools will be funded at a $908,164. And in a even

more updated economic agreement with the Creditors Committee, we've agreed that the sharing above that amount or the contribution above that amount for the first 5 million -- or it's not quite 5 million -- up to 37.375 million, 2% of the proceeds will go to contribute the fund, and above that sort of second target amount, 6% of the proceeds will go to contribute the funds. As I noted before, no payments will be made to employees who voluntarily terminate or for employees terminated for cause. Further, no payments will made to any plan participant

pending any internal investigation of such participant's conduct. Now, I note -- I will note briefly here that the

United States Trustee noted that provision, but wanted to raise the additional concern about the SEC's investigation with respect to employees. In that regard, the Debtors provided

initially the complete roster to the Securities Exchange Commission and, in fact, made some deletions at the request of the Securities and Exchange Commission. Accordingly, the

revised plan roster is -- we've reviewed with the Securities and Exchange Commission and they've raised no objection. So

that part of the review was done prior to the completion of the roster that we're asking to be approved today. I'd like to pass up one other summary that we've also provided to the United States Trustee that gives a little more

131 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 detail about the categories of employees that are subject to the plan, if I may hand this up? THE COURT: MS. UHLAND: Yes. Thank you.

The totals on this exhibit split out

between the two plans the numbers I just described for the asset pools and, in addition, describes by general area the categories -- or participants in the plans. Briefly, because we are going to have discussions or testimony to describe the business purpose of the plans, at a high level, again, the structure was to create a sales related plan on the incentive portion and to create a distribution of proceeds to balance between the efforts required for the different plans and to ensure that there was an incentive structure such that the employees would, you know, on a very successful result receive substantially more payment. And

again, this is why -- one of the reasons that the bulk of the plan is weighted and the incentive plan is weighted toward the other asset categories. As the Court is aware, that bar, you

know, has been raised, even lately, with the fact that the Debtors received no bids for their loan origination platform and are now going to be attempting to achieve that goal based on the sale of their other assets, you know, other remaining assets under 363. Between -- as I noted before, between filing the original plans and this plan, the Debtors made substantial reductions in

132 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the economics and made the changes I described above to move anyone who could be, by rule of this case or by the Debtors' own concern on the policy review standard, an insider up into the second plan. Since filing the Tuesday plan, the Debtors engaged in continued and further discussions with the Creditors Committee. And I'd like to walk through briefly what the economic changes were between the filing of the Tuesday plans and the plans today. Most importantly, and the key economic change -- or

there's really two key economic changes made by the Debtors since the Tuesday plan. First, the target for the other asset

pool was reduced by approximately 25%; in other words, the total pool that would be available on distribution of those amounts. And while the pool was reduced the -- there was sort

of to create a more incentive structure, while the initial -the floor pool was reduced for remaining threshold, the sharing on the upside was increased such that instead of a flat 2% above the target of 32.5, it's now the stepped 2.5% and 6% I previously described. Further, and this is another point that should address one of the issues raised by the United States Trustee, the discretionary incentive pool, or critical retention pool, we've used both names, was reduced from $250,000 to $175,000. And

again, I believe this does address the U.S. Trustee's concern on this matter, no individual can be paid more than $40,000 or

133 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 20% of their base salary without Creditors Committee consent. Also at the Creditors Committee's request, the Debtors and the Creditors Committee clarified the provisions with respect to the holdbacks; in other words, that at the time the sale closes that the pool will be funded net of any held back amount, with the held back amount only to be paid as received. This was a two-fold interest of encouraging the Debtors and their representative to both minimize amounts immediately, you know, held back out of sales and further encourage the employees to maximize the recoveries from any holdbacks or escrows in the asset transactions. And finally, Your Honor, with respect to the delivery of the release, the Creditors Committee requested that we be clear that the release be delivered by the participants prior to payment instead of thereafter, similar to the release provisions that the Debtors and the Creditors Committee worked out in connection with the wholesale retention plan payments that the Court previously approved. Again, Your Honor, those are the modifications, in addition to the loss of employees that have changed since Tuesday. Notably, we've reduced the total number of employees

participating in the plan; I believe that the are 11 fewer employees since Tuesday -- 11 employees who are no longer participating, which is a substantial attrition over the last week. It's been a very -- last week was a very difficult week

134 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 with the Debtors with the reduction in force, as well as -- and these were -- these were voluntary terminations, not parties who were RIF'd by the Debtors. And then further, there was one

employee added in to sort of address the fact to compensate in an area where the other employees had been -- were no longer going to be employees of the Debtors. Accordingly, as we now -- if we're looking at the revised detailed schedule, the total cost, if all targets are met, would be -- and the full discretionary pool is paid, would be approximately 3.2 million. If all targets are met just at

target, we expect to -- we can add to that, and we've now calculated the amount that we would receive with the Ellington transaction, so that would amount would increase with the holdback by an approximately another $160,000. So

approximately 3.37 million if we hit every target with the Greenwich overbid and if all employees remain employed and therefore remain entitled to all the payments. Your Honor, I believe on the legal objections, that as we've -- both the restructuring that we did and filed on Tuesday, that we've addressed the issues the United States Trustee raised with respect to 503. After the conclusion of With

the testimony we will walked through that issue again.

respect to the incentive nature of the plans, Your Honor, we believe that's best addressed through the testimony of Ms. Etlin, who can talk about why the plans address -- why the

135 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 plans are motivating and necessary and are not {quote} {unquote} "lay-ups" as the case law warns us against. And with

respect to the U.S. Trustee's legal objections, we believe as restructured and with the additional information which was presented into the Court today, that the Trustee's concerns about the Securities and Exchange Commission investigations have been addressed, as have the U.S. Trustee's concerns about the payments to be made to individuals in connection with the additional pool. With that, Your Honor, I'd like to turn it over to Mr. Stern to present our evidence. THE COURT: All right. Before we do that, let's And before the evidentiary

take a short break, say 10 minutes.

presentation, I'd just like -- I would like to hear first briefly from the U.S. Trustee to see what objections, if any, remain. MS. UHLAND: THE COURT: (Court in recess) MR. MCMAHON: Your Honor, good afternoon. Prior to Thank you, Your Honor. Court will stand in recess.

the break, Your Honor asked for a presentation from our office as to whether the plans as revised resolved our objections in any way, and the answer to that question is no. As our

objection notes, there are two concerns under -- having to do with sub-section 503(c)(1), and then four concerns dealing with

136 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 50C -- 503(c)(3), excuse me. With respect to 503(c)(1), the

two issues are, first, whether this plan as it is currently postured is a disguised retention program. The second issue is

whether the plans seek to make retention payments to insiders. And in that regard, Your Honor, I note that while the Debtors have, I guess, attempted to shift Senior Vice Presidents and Vice Presidents across the company, across various corporations, as a result of our previous consideration of the insider issue in a different context, there are still, admittedly, in the text of the amendment Vice Presidents and Assistant Vice Presidents who are, by definition, corporate officers, they have been appointed officers pursuant to the bylaws, who are slated to receive retention payments under the plans; specifically, the retention plan. With respect to (c)(3), Your Honor, we have argued the plans have to be justified by the facts and circumstances of the cases. And the first consideration basically mirrors the The second

point about the targets not being real incentives.

point is -- has to do with the rational relationship between the incentives and the work performed by the various employees who either were creating a second class of investment bankers who really aren’t. The third has to do with the existence of

the critical retention pool, and the fourth has to do with the pending investigations and whether we should be going forward with this issue. And I guess you could probably collapse out

137 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 McMahon. MR. MCMAHON: MR. STERN: Okay. Good afternoon, Your Honor. May it with the consideration of our Motion to Continue. Honor would like me to -THE COURT: No, thank you, I appreciate that, Mr. Unless Your

please the Court, Bob Stern from Richards, Layton & Finger on behalf of the Debtors. Your Honor, I’ve been asked to present

Debtors' Motion to Approve its Incentive and Retention Plans. Before I do that, however, we filed, I believe it was today or perhaps sometime earlier, a redacted version of the employee roster; in other words, all of the folks who we propose to have receive either incentive or retention pay under these plans, and that roster provides specific information about employee, position, and amounts that they might receive under certain sales or for retention. The U.S. Trustee has asked us to file an unredacted version of that roster, but we feel we can only do so if it is filed under seal, so at the request of the U.S. Trustee this afternoon, we are making now an Oral Motion under Section 107(b) to File the Entire List Under Seal, and I’ll briefly explain the basis of that motion, but I’ve added at the end of Ms. Etlin’s testimony the facts Your Honor would need in order to grant that motion. So I’ll simply alert the Court that

we’re making that motion now, give the Court a quick preview of

138 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the basis for that motion, and otherwise table it until we finish and Your Honor’s had a chance to hear Ms. Etlin’s testimony. THE COURT: unredacted list? MR. STERN: THE COURT: MR. STERN: Yes. All right. We’re not hiding that from him. We just Does the U.S. Trustee have a copy of the

don’t want it to be part of the public record. THE COURT: MR. STERN: I understand. Okay. The basis, Your Honor, for our

Oral Motion under Section 107(b) is that we want to protect the company’s confidential information. Frankly, the data on the

amounts that employees could or would receive is competitively sensitive information, among other things. As Ms. Etlin will

testify, such information could be used by competitors to essentially hire away the employees that we have deemed most critical. All they really need to do is see what we propose to

pay them to incentivize them to stick around and top it, and then we are at risk of losing those employees. Moreover, as a general matter, the company does not disclose specific employee compensation information because of a concern that it may cause some dissension among the ranks, frankly; one employee looking at what the other employee’s getting and getting disgruntled. So very generally, but

139 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 probably primarily for the reason of a concern about the ability of competitors to use this data, we would like to keep it confidential. And Ms. Etlin will

provide such testimony, and then I suppose we’ll return to the motion under 107(b) at the end of the day. Your Honor, turning to the motions, as the Court is aware, on April 11th, the Debtors filed their Motion Seeking Approval of the Incentive and Retention Plans. Now, I think it’s fair

to say a lot has happened since then, and Ms. Uhland has summarized many of the events, and I’ll spare everyone a repetition of that summary. I think suffice to say, we come to

Court today with plans that have been modified to address the concerns of the Committee, and in our view, concerns previously expressed by the Court and the U.S. Trustee. It bears

emphasizing, Your Honor, that the Committee, which in essence is writing the checks for these plans, is fully on board with and supports the plans. Your Honor has already heard the general basis for the U.S. Trustee’s objections to our plans, and with due respect to the U.S. Trustee, Your Honor, we believe we can refute those objections today as a matter of fact and as a matter of law. We will demonstrate that the incentive plans are indeed true incentive plans. We will demonstrate that the participants in

the retention plan, there’s about 28 Vice Presidents and Assistant Vice Presidents among the approximately 90 total

140 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 participants in that plan, give or take, are not officers as that term is used in the Bankruptcy Code. And we will

demonstrate that the plans themselves represent informed exercises of the Debtors business judgment and are entitled to approval under Section 503(c) -- 503(3)(c), excuse me. Your

Honor, we will, at the end of the day, ask the Court to approve the plans today, as in our view it is critical that the plans be approved today. Frankly, and you’ll hear some of this in

the testimony, we simply cannot wait to afford any longer. Now, this afternoon, Your Honor, I’m going to proceed as follows. First I’m going to call two witnesses. The first one

is Holly Etlin of Alex Partners, the Debtors' financial advisors. I think in terms of ordering, then it would make Then

sense for me to present Ms. Etlin for cross examination.

I’ll proceed to Frank Glassner of Compensation Design Group. Mr. Glassner -- or I should say Compensation Design Group are the Debtors' compensation advisors. Of course, then, if anyone

wants to cross examine Mr. Glassner, they’ll be free to do so. And then we’ll discuss, Your Honor, the applicable legal standards, the application of the facts that have been presented today to those standards, and why the Debtors believe the plans should be approved. I suspect when I sit down, the

Committee and the U.S. Trustee may have some things to say as well. Your Honor, may I call my first witness? THE COURT: You may.

141 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. STERN: Q. A. Q. A. Q. A. Q. A. Q. Ms. Etlin, by whom are you employed? Alex Partners. And what is your position, ma’am? I’m a managing director. Did you join the firm as a managing director? Yes, I did. And when was that? In January of this year. Would you please provide a brief overview of Alex Partners' the stand. HOLLY ETLIN, DEBTORS' WITNESS, SWORN THE CLERK: Please state your full name and spell MR. STERN: Your Honor, Debtors call Holly Etlin to

your last name for the record. MS. ETLIN: Holly Felder Etlin, E-T-L-I-N. DIRECT EXAMINATION

business? A. Certainly, Alex Partners is a over 600 person international

consulting firm, and while it has multiple lines of business, it is best known as being one of the preeminent crisis and turnaround management consulting firms in the world. Q. Do officers or employees of Alex Partners occasionally

serve as or serve in officer roles at distressed businesses? A. Yes, we frequently serve as CRO and CEO and often CFO

Etlin - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 titles, as well. Q. Okay.

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Would you please summarize your responsibilities as

a managing director of Alex Partners? A. Managing director is the highest level of professional We are responsible for directing the cases

within the firm.

that the firm has, actually taking those officer roles, as well as selling and marketing work on behalf of the firm. Q. A. Q. A. Ma’am, by whom were you employed before Alex Partners? Crossroads Solutions Group. Okay, and what is Crossroads Solutions Group? It is also a crisis management and turnaround firm of

smaller scale than Alex Partners. Q. A. What was your last position at Crossroads? I was a principal, which is the highest title in that firm,

and the co-leader of the restructuring practice for the firm. Q. A. Q. A. And how long were you with Crossroads? Four years. By whom were you employed prior to Crossroads? For 23 years I was with Deloitte Consulting, the last 5 of

which I was the national leader of their restructuring practice. Q. So how many years of experience, ma’am, do you have in

providing financial advice in restructuring or reorganization engagements? A. Slightly in excess of 27 years.

Etlin - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. A. Do you have any professional certifications? Yes, I do. And what are those? I am a CTP, a Certified Turnaround Professional, and a

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CIRA, which is Certified Insolvency and Reorganization Advisor. Q. A. Are you a member of any professional organizations? Yes, I’m a member of the ABI, the AIA, which is the

Association of Insolvency Advisors, the IWIRC, the International Women’s Insolvency Reorganization Confederation, INSOL, as well as the Turnaround Management Association. Q. Have you had any upper level positions with the Turnaround

Management Association? A. Yes, Turnaround Management Association is an 8,000 member

professional association, the largest in our business, and I’m the immediate past Chairman of that association. Q. A. Q. When was Alex Partners retained by the Debtors? On March 21st of this year. Are you the lead professional for Alex Partners on the

engagement? A. Q. Yes, I am. Okay. What type of services has Alex Partners provided to

the Debtors? A. We have -- we were engaged to provide a variety of crisis

management services to the Debtors, including but not limited to management of the treasury and cash forecasting function for

Etlin - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the company, assisting the company with the preparation for operating within a Chapter 11 environment, assisting both

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counsel and management with those issues, assisting the company with stabilizing its servicing operation, and dealing with vendors and others who were disturbed by the company’s precipitous decline in financial condition, working with the management team on the various operational issues the company has had, including the reductions in force that have occurred, conversations with vendors, landlords and others pertaining to the current condition the company is in. Q. Since your engagement by the Debtors in March, have you

spent literally 100% of your professional time working for the Debtors? A. Q. Yes, I have. Okay. And as a result of your work for the Debtors, have

you become familiar with the Debtors' business operations? A. Q. Yes. Okay. Can you generally describe what the Debtors'

business was pre-petition and what’s happened to the business since then? A. Certainly. The company, as I think has been stated in this

Court on several occasions, was the second largest originator of sub-prime mortgage loans in the country last year. They

originated approximately $50 billion in mortgage loans, which at an average of $200,000 apiece is a lot of mortgage loans.

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Unfortunately, in the early part of March, the company found itself without its warehouse lines of credit, which were lines that it utilized in order to continue to make loans, and found itself unable to make mortgage loans. Therefore, given that

the origination of mortgage loans was a primary source of revenue for the company, the company effectively found itself in early March without any form of revenue. Q. A. And what happened next? Well, the company engaged in Lazard to assist them in

evaluating a variety of strategic options and attempted to find a buyer or equity investor for the business who would do so outside the context of a Chapter 11 filing. They had a number

of parties who came through the company, who spoke with them, who attempted to look at the company. Unfortunately, those

parties concluded that they were not interested in doing such an investment outside the context of a Chapter 11 filing. Therefore, the company proceeded to prepare for and file itself for protection under Chapter 11. In addition, as part of that process, the management team became convinced that the size the company was at the time was not going to be a size that anyone, even in the context of a Chapter 11 filing, was going to be interested in buying. so on the first day of the filing we executed a lay off of approximately 50% of the company’s employees. We downsized the And

business by over 3,000 people to try to bring the size of the

Etlin - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 loan origination platform business to a size that the management team thought would ultimately be saleable. Of

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course, I think the newspaper accounts and things that happened last week tell the story on that. Unfortunately, there were no

offers for that business and the Debtor executed a further reduction in force last week. We currently have slightly less

than 1,000 employees left at the company, approximately 370 of which are at corporate, and slightly over 500 of which are employed in the servicing operations of the business. Q. You said there’s currently less than 1,000 employees at the

company? A. Q. That is correct. Just for comparison purposes, how many employees,

approximately, were at the company 2 months ago? A. Q. Almost 6,300. Okay. Ma’am, are you involved with the Debtors' sale

efforts? A. Q. Yes, I am. Okay, and can you describe your involvement just summarily

please? A. Certainly. Our rule is to assist Lazard and the management

team in developing due diligence materials for the process with regard to all of the various sales, working closely with the management team, getting those up on an internet based data site, an interlink site, to facilitate the various bidders due

Etlin - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 diligence, and also coordinating the various kinds of interviews and on-site visits that occur with regard to the various business operations. Q.

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I’ll ask you to go into some more detail about the sales

processes and the assets being sold and things like that in a moment, but just to give us a starting point, can you briefly identify the categories of assets that are being sold? A. Certainly. They’re basically the assets that are covered

by the plans that are subject to this hearing today, and then there are certain other assets of the Debtors, but those are not subject to a 363 sale process. So the first is the sale

that was just completed this morning, which was the sale of loans not financed anywhere, which are loans that have either been put back to the Debtors or for which the Debtors did not originally securitize them or put them in a securitization facility, as well as certain residual interests that the Debtors owned in assets that were previously securitized and owned by others; so that’s sort of the first category. The second category is an operating business, and that is the servicing platform business. That platform continues to

service loans owned by the Debtor, by Carrington, and also by Morgan Stanley. That’s the business that employs slightly more It operates in Santa Ana, California,

than 500 people today.

and is continuing to collect money on behalf of those parties, process loans, also perform reconciliations associated with the

Etlin - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 various activities of the warehouse lenders. The third

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category consists of a variety of other assets, which have been previously described in Court. The interest in the Carrington

funds, access lending, which was the subject of a sale hearing previously in this Court. business. There’s a small title insurance

There are -- obviously, we had hoped to sell the

loan origination platform and were not successful doing so and unfortunately had to lay off many of those employees, but the company still does hope to sell the actual custom technology that was created for that loan origination platform, as well as certain IT assets and potentially employees who will go with that custom design software and help with training, et cetera, for the buyer of that asset. Q. Okay. I’m going to return to each of those three

categories and we’re going to talk about the steps that have been taken done so far for these sales, and the steps that remain to be taken. the Ellington sale. approved today? A. Q. Yes, it is. Okay. What have the Debtors' employees done so far, say Let’s start with, I guess what I’ll call Is that the name of the purchaser that was

through today, in order to support or facilitate the Ellington sale? A. So the Ellington sale is not simply a single financial It is a pool of approximately 2,000 loans, and each of

asset.

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those loans has documentation associated with it, performance criteria, past performance criteria that had to be extracted from the Debtors' records and made available to parties, as well as then the residual interests which, again, the Debtor had to be capable of providing documentation that those interests were actually owned and what they consisted of and all of the various documentation that goes along with the performance of the pools of assets to which those residuals might be related. So that the Debtors management team was

involved in a fairly comprehensive process to extract that data, as well as to make it available to potential parties who were interested in buying those assets. Q. Notwithstanding the fact that the Ellington sale was

approved today, is there work yet to be done by the Debtors' employees to consummate the Ellington sale? A. Yes, very substantial work. The Ellington sale documents

require, specifically, the delivery of all of that documentation successfully to Ellington, and there’s actually a holdback that the Debtors would like to ultimately receive that’s pending the actual documentation, the receipt of the documentation, and the transfer of all of that data successfully to the buyer. Q. A. Q. And how much is that holdback? So I believe it’s approximately $3 million. Now what happens if the Debtors' employees don’t perform

Etlin - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 all this hard work and provide the information to the purchaser? A.

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So, well, in one case the deal could not close, potentially

not close at all in the most extreme view, and it’s -- and in the less extreme view, you could have an issue with actually receiving the full amount of the proceeds under the holdback. Q. Let’s chat for a moment, if we could, about the second

category, the Carrington sale, if I can use that to summarize it. What is the status of the Carrington servicing platform

asset sale? A. No, the Carrington stalking horse agreement was filed, if

not at the exact same time, we sought protection under Chapter 11, shortly thereafter. However, because of the speed with

which that agreement was put together, Carrington has continued, subsequent to that date through today’s date, to do additional due diligence on their own behalf with regard to that transaction. In addition, they’re actively in the

servicing platform, have had professionals in the servicing platform making substantial information requests. My team in

the servicing platform, the Alex Partners team, is responsible for helping manage and fulfill those requests so that they don’t significantly interfere with the day-to-day operations of the servicing platform. But the fact of the matter is is that

a lot of people and a lot of data have to be involved in making sure that Carrington’s requests are satisfied. Carrington’s

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not the only interested party in this business so there have been other parties doing due diligence, coming on site to have meetings, and doing other kinds of activities with regard to the sale process right through today’s date. Q. I think you’ve probably answered, in large part, my next

question, but I’ll ask it anyway to see if you want to add anything to your answer. What have the Debtors' employees done

so far in support of the Carrington sale? A. There’s been very substantial data associated with that.

Carrington, as any bidder for this kind of asset, would want to know that the company had adequate systems and people and expertise in place to properly service a long portfolio the size that the company currently services. They would want to

know that the company was complying with the terms and agreements of those servicing contracts, and so there’s been a very substantial amount of data gathering associated with that, as well as understanding the company’s policies and procedures with regard to the non-performing portions of the loans in those portfolios, given that this is a sub-prime loan portfolio, which requires a lot more hands-on attention and activity than a regular credit rated portfolio of mortgage loans. Q. And what remains to be done by the Debtors' employees in

order to consummate the Carrington sale? A. Well, the first threshold issue is we’re required to retain

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a minimum number of them in order to close that transaction in the first place. So the first thing they have to do is at There is

least agree to stick around, which is no small issue.

a competitive servicer of loans who opened up a brand new facility and held extensive job fairs in the second week of this case, and who has been actively trying to recruit the company’s personnel. But in addition to that, it’s not a fait

accompli that Carrington will be the purchaser of those assets, it may be some other party, but if it were to be Carrington, Carrington does not currently have the licenses necessary to actually take over, close and operate a servicing operation. And so we would be obligated, under the terms of a transition services agreement, to continue to assist them in operating those businesses until such time they obtain their own licenses and were able to take over the operation of those servicing businesses. And there’s a lot of transition that would occur. If a

buyer were to actually be a current operator of a servicing platform, it would still take approximately 3 to 4 weeks to set up for the actual transfer of the service assets to that buyer, and then there’s about a 30 to a 60 day tail whereby you still continue to receive checks from borrowers and other kinds of reconciliation activity that you need to do to support the full and complete transfer of that business over to the successful buyer.

Etlin - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q.

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You referenced, I think, a requirement under the Carrington

agreement that the Debtors essentially deliver a certain number of employees identified by the purchaser under the agreement, is that right? A. That is correct. It’s a certain percentage. If I recall

correctly, I think it’s 75% of the employees that were in the platform at the time the stalking horse agreement was signed. Q. A. And what happens if we don’t deliver the 75% of employees? I believe at Carrington’s option they have an option of not

closing. Q. Okay. Now, while all of these things that you’ve just

described have been going on at the servicing business and the related businesses, do the employees still need to run those businesses? A. Oh, absolutely. There’s a lot of activity going on, not

just the running of the actual servicing business, but frankly, we’re, as of last week, only 30 days into this case. And so

there are huge amounts of activity that are ongoing in every aspect of the business operation of the company, not only pertaining to the issues with regard to the very rapid downsizing of the business, the need to dispose of properly facilities and leases and assets and those kinds of things, but also all of the ongoing issues associated with the various -the SEC investigation, the various regulatory departments in every state in which the company has done business, there’s

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very active contact with each state, and those are licensing issues. And again, we have to maintain the licenses in order

to be able to transfer an operating business to Carrington or another purchaser on the servicing side, so there are lots of different kinds of activities ongoing at the company, in addition to just supporting the sale process. Q. Let’s talk about the status of the last bucket of assets, What is the status of

which we’ll just call "other assets." the sale of the other assets? A.

That process has only just barely commenced with regard to We don’t have any stalking horse bids for

the other assets.

any of those items other than the Access transaction, which this Court has already heard, but which I think the Court will remember, while there is a nominal value placed on that sale, it is subject to an actual earn-out provision. And so there

are things that need to happen in order to actually ultimately receive those proceeds from Access. Q. And just so that the Court understands what’s going on with

this business as well, or these businesses I think I should say, what have the Debtors' employees done so far in support of selling these other assets? A. So, well, first the Debtors employees had to and have been

continuing to identify all of the various kinds of smaller miscellaneous assets that the company has that are not particularly hard assets; you know, they’re not tables and

Etlin - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 chairs, or leases. to find.

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Those are the things that are kind of easy

It’s the company’s investment in Carrington and the

issues associated with the potential transferability of that, it’s Access, it’s -- again, I mentioned the small title insurance company and other kinds of things like this. And of

course we were, until unfortunately last week, very actively marketing the origination platform. And there were huge

activities associated with preparing the materials associated with that sale process, supporting Lazard in the sale process, the demos of the IT component of that operating business, and then, now, the continuing process associated with trying to market and successfully sell just the IT components since the employees have actually been terminated as of last week. Q. And just to round out the record, although I think you’ve

probably mentioned some of these things already, what remains to be done by the employees to hopefully consummate sales of these other assets? A. Well, probably the most important issue is that the

servicing platform and its IT requirements were not set up to be separate and easily segregable from the normal IT operations of the company. And many systems are linked together. We need

to figure out what goes with the servicing platform, what is related to the technology sale, and what, frankly, systems and data the ongoing estates need in order to properly perform their function of filing a Plan of Reorganization and winding

Etlin - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 down the process as it pertains to the remainder of the business.

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So that’s one example of several activities that are

still ongoing and require some fairly substantial technical input of the company’s employees. Q. You mentioned previously that with respect to the other What’s the outlook for the

assets, there’s no stalking horse. sale of the other assets? A.

Well, it’s -- we would hope that it was good, but obviously

that component of this plan is much more highly speculative than the other components. The other components are And certainly, for

speculative as to timing and amount.

example, in the case of Carrington, there could be a downward adjustment just as easy as there could be an upward adjustment, based upon the ongoing due diligence efforts. But at least

there is, I think, a sense among the company’s employees that that business -- there will be a successful buyer. The other

assets pieces, it’s not necessarily known what the sale might bring. Commensurately, we’ve tried to structure the incentive

compensation to reflect some of the risks that the employees perceive potentially with the successful sale of those assets. Q. Now, all the work that you’ve just described in great

detail that has been done by the Debtors' employees so far to support and facilitate the asset sales and that remains to be done to support and facilitate the asset sales, could that work be done by the Debtors' investment bankers?

Etlin - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. No.

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Lazard’s job is to work with the various buyers in the Lazard works at a much higher level. And

negotiations.

certainly they do not have nearly the kind of detailed knowledge with regard to these assets and businesses that the company’s employees do. And so there is a logical break

between the role of the company’s employees, frankly our role as advisors to the business, and Lazard’s role. Q. Now, in addition to participate -- and I think you In addition to

discussed a little bit of this a moment ago.

participating in the sales processes and otherwise running the various businesses, what other kinds of work have the Debtors' employees been doing? A. Well, we have just completed -- unfortunately, going from

6,300 employees to less than 1,000, so the HR and benefits portion of the company has been completely consumed with just getting the appropriate documentation to people that you would normally deliver to them as part of their termination; the COBRA notification and everything associated with that process, making sure that we get, you know, security passes and lap tops back from people and that we secure the various office sites that have been vacated by the Debtors as the various two rounds of downsizing that have occurred. Now, one round was on April 2nd, the second round was just last week, about 30 days later. There’s a huge amount of

follow-on activity associated with all that process.

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Substantially all of the company’s desks and chairs and file cabinets are subject to various forms of equipment financing, equipment leasing arrangements, identifying which are on which agreement, and what the rights or those various lenders or lessors are and how we go about seeing that their rights are protected with regard to these assets and making sure that we maximize the value of these assets, which now constitute, you know, used office furniture. There’s just a whole host of Of course,

different kinds of activities that are going on.

the schedules and (indiscern.) preparation is the thing that’s now consuming the accounting department, for example. Q. Let’s turn to the plans that are proposed for approval

today, the Key Employee Incentive Plan, and the Key Employee Incentive Retention Plan. plans? A. Q. A. Q. A. Yes, I am. Okay, do you know how the plans were developed? Yes. How were they developed? A joint effort between the compensation committee of the Ma’am, are you familiar with those

Board of Directors, CDG, O'Melveny, input from me, and then input from the senior management team as to the potential participants in the plans and the basis for the plans. Q. A. Okay, and did you personally have a role with the plans? Yes, I’m the individual from Alex Partners who was involved

Etlin - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 in the discussions around the development of the plans, and also the potential participants in those plans. Q. Did you assist in identifying employees who should be

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included to, for example, accomplish the sales in the plans? A. Yes. I interacted with every member of the -- what’s

called the EMC of the company, the Executive Management Committee of the company, the top eight employees who direct all of the significant business units of the company. And I

had direct interactions with each of them with regard to critical employees within their portions of the business and the role they would potentially play as part of this process. Q. A. Q. A. Q. A. Have the Debtors approved the plans? Yes. Okay. Yes. Why did you do that? Because I think it’s in the best interests of the estates. And did you advise the Debtors to approve the plans?

I believe that while we don’t have as many employees in these plans as we would have probably preferred to have under other circumstances, that the employees that are in these plans are the bare minimum necessary to really see us through the balance of the process without significant disruption. Q. Is there generally, among the employee ranks, uncertainty

regarding the business? A. Yes, that would be an understatement.

Etlin - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Are there currently high levels of turnover? Yes.

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The company has had -- in addition to the downsizes

that were planned, the company was experiencing extremely high turnover when I first walked in the door on March 21st, and while that has somewhat slowed, again, I think it has been noted earlier today that when we first filed this plan, there were 11 people in this plan who are no longer with us because since we have been attempting to get this plan approved, they have voluntarily resigned. Q. Are the employees who the Debtors have identified for

inclusion in the two plans easily replaced? A. No, many of them have either very specific technical

knowledge associated with the actual industry that the company is in, or very specific supervisorial or managerial knowledge regarding how the company actually operates that would be very difficult, frankly, to replace if they were to depart. Q. A. Is this an easy time for the company to hire replacements? No. When I’m not here in Court I spend full time at the And unfortunately, the amount

company in Irvine, California.

of press that the company has received, the unfortunate derogatory comments that have been made by the U.S. Trustee’s Office and others that have then been picked up by the press have really contributed to, frankly, just absolute -- it’s almost hard to describe. to happen next. People just don’t know what’s going

They don’t -- you know, normally we would file

Etlin - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 a bankruptcy and we would communicate to employees, "Okay, we’re in, we've got this approved for you, we’ve got that

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approved for you, and we’re gonna -- you know, we’re gonna have this course of action, and it’s going to take about this long, and this is what your expectations could be." But they

continue to read just horrible things being said about the company in the press, and so they don’t know what to believe, and particularly with regard to people who are part of the U.S. Government saying some of those things. They don’t know

whether that reflects, frankly, the view of Your Honor or something else. These are the kinds of questions I get on a daily basis from people who, normally in my experience, at this point in the case, we would have been able to substantially calm them down, have them focus on the work at hand, and not be worried about maybe next week someone will change their mind and they won’t get paid out their vacation or their pay check will bounce or the other kinds of things that you typically have happen with an employee being concerned about in the first 4 or 5 days of a case, as opposed to now 30 days into the case still being worried about that. Q. Are the Debtors asking these plan participants, these

identified employees, to take on additional responsibilities and expend significantly more time and energy than contemplated by the normal terms of their employment in order to assist the

Etlin - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Debtors in, you know, accomplishing these asset sales? A. Yes, all of this other stuff comes on top of the things

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that they need to do day-to-day.

Now, while we no longer have

the origination business so people who had a heavy portion of their day-to-day business activity devoted to that have been able to switch over to some of these activities, I think it’s fair to say that all of the company’s employees are working much longer hours and much more extensively than they’re used to doing in the past. Q. Do the Debtors have authority to honor pre-petition

incentive plans for these employees? A. Q. No, they do not. And in the past, has a substantial portion of the New

Century employees' compensation been incentive and performance based? A. Yes, in addition to the commission retention program which

we talked about early on in the days of these cases, a very large percentage, I think, you know, 25, 30% of the average middle management employee's total compensation package was part of the incentive programs of the company, and that includes the people in the General Counsel’s Office, people in Accounting, HR, and other places. And they’re obviously very

conscious of the fact that those incentives are no longer in place. Q. So in essence, because those incentives are no longer in

Etlin - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 place, are the employees essentially working for a pay cut? A. Q. So, yes, and I hear about it fairly frequently.

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Ma’am, are the employees listed in the plans essential to

the successful consummation of the sales of the Debtors' assets? A. Q. A. Yes. And why is that? Because the functions that they’re being asked to perform

as part of this process are essential to successfully closing those sales and transitioning those assets and businesses to the buyers. Q. Do the individuals who were identified for participation in

the plans have specialized knowledge? A. Q. Yes, they do. Okay. Now, why do the plans provide for incentive pay for

consummation of sales of assets for which the Debtor already has or had stalking horse bids? A. Well, again, I think we previously discussed the fact that,

for example, Carrington was subject to substantial additional due diligence, and the price on Carrington could just as easily have gone down rather than up as a result of this continuing due diligence. In addition, that original Asset Purchase

Agreement was signed without all of the schedules to the agreement being fully complete because of the timing under which it was done. So there are a lot of fine point details,

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because of the speed with which these sales have needed to be made in order to preserve the most value for the estate that needed follow-on, even after the transaction was initially inked. And of course, then, all of the competing bidders for

those assets had continuing due diligence after that process. Again, sometimes in these sale transactions, in determining a stalking horse, we’ve had substantial due diligence occur at the company already. In this case, substantially all the due

diligence with regard to the bidders occurred after some of the stalking horse bids were entered into. There were some parties

involved early on, but many more of those involved in the sale process were involved after those bids were filed with the Court. And then, of course, there’s the issue with regard to

documentation and transfer of those assets. Q. And do the stalking horse agreements have closing

conditions? A. Q. Yes, they all have fairly extensive closing conditions. Now, let me backtrack for just one moment cause I want to We

address a question to some testimony you gave previously. already discussed the fact that pre-petition, the Debtors provided incentive based compensation for their employees, right? A. Q. Yes. Okay.

And you’ll recall your testimony that the Debtors

have not continued post-petition with their pre-petition

Etlin - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 incentive plans, right? A. Q. That’s correct. Okay.

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Now, at the time the employees were working on the

stalking horse bids, do you believe they expected to continue to receive some form of incentive pay? A. Q. Yes, I do. Okay, but as things currently stand, they would not receive

such incentive pay, would they? A. Q. A. That’s correct. Okay. We did not, however, have time or, frankly, have sorted

through at the time the ability to say that the employees definitively one way or the other what form of incentives we might be in a position to provide them. So they continued to

work under an assumption that the portions of their compensation that were available to them pre-petition would continue to be available post-petition. Q. So absent approval of these plans today, those employees

would not have, I guess, their beliefs fulfilled, would they? A. Q. That’s correct. Ma’am, would you describe the consummation of the stalking

horse bids as "lay-ups"? A. Q. A. No. And why not? Well, again, I think I’ve testified that as it pertains to

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Carrington, they’ve probably done more extensive due diligence since the signing of the stalking horse bid than after, and we’re, you know, continuing to hear feedback from them with regard to that process, as well as the other parties coming through. The same, by the way, is true, frankly, of the

Ellington transaction in that there were very, very extensive documentation issues that have to occur in order for the sale to actually close. Company’s employees in the capital markets

area have been working very extensively on making sure that we can actually provide that documentation at the time of closing. Q. Now, why did the Debtors tie the incentive pay for all of

the plan participants to the asset sales? A. Because of the nature of where the company is today,

there’s not going to be a Reorganized Debtor, and the thought was that we should pick those things that are most easily identifiable and measurable for the included employee. employee knows what the transaction is. The

The employee can very

clearly identify it, and the amount of the transaction is measurable. Q. Are the sales essentially the most important activities

that the company is currently engaged in? A. Yes, by far and away they are the activities that will

generate the most value for the estates, in addition to the tax return preparation, which will hopefully yield a fairly large income tax receivable.

Etlin - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q.

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By using sales as the measure for incentive pay, does it

allow the Debtors to keep the plan structure simpler? A. Yes, again, one of the key issues with an incentive plan,

and particularly one in a post-petition environment, is you want the employee to believe that the measurement criteria for the plan are readily identifiable. measuring them on soft issues. You don’t want to be

You want to be measuring them

on something very hard and measurable and relatively public. Q. Is it practical to come up with 100 different incentive

plans for 100 different employees? A. No, it’s very impractical, and particularly given all the

other things the Debtors are doing, the fact that we even have three different pools is a little more complex than many of the plans that I’ve put in place in similar cases. Q. Are all the plan participants in one way or another engaged

in activities that support the asset sales? A. Q. Yes. Are the plan participants required to waive any other post-

petition incentive or retention compensation or claims such as Warn Act claims in order to qualify for payment under the plans? A. Q. Yes, they are. Okay. If a plan participant voluntarily terminates or is

terminated with cause, can the participant receive incentive or retention pay?

Etlin - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. No, they cannot.

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If the participant is subject to investigation by the Audit

Committee, do the Debtors have the right to delay payment in order to complete the investigation to determine if the employee should be terminated for cause? A. That’s correct. Any amount that’s due that employee under

the incentive plan pursuant, for example, to Ellington, since the Ellington transaction has just been approved by the Court, would be escrowed until such time as a determination was made whether or not the employee was eligible to receive that money. Q. Ma’am, given all you’ve told us about the plans, do you

have a view regarding the reasonableness of the plans? A. Q. A. Q. A. Q. Yes, I do. What’s your view? They’re reasonable. For the reasons you’ve already discussed in detail? That’s correct. Okay. Ma’am, do you have a view of what might happen if

the plans are not approved? A. Q. A. Yes, I do. And what is your view? We’ll continue to have the turnover that we have I would suspect that we will rapidly lose some

experienced.

substantial percentage of the employees covered by these retention plans, and more importantly, we’ve got 371 corporate

Etlin - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 employees and we’ve got over 500 servicing employees.

169 The lack

of approval of this plan would send a message to the balance of the company’s employees, even if they aren’t covered by this plan, that there is some risk with regard to all of their other compensation arrangements. No matter what I could say to them,

at that point they would be -- have sufficient disbelief that, frankly, I think a large portion of them would be out looking for jobs. Q. Ms. Etlin, if the plans are not approved, and are not

approved immediately, do you think that could adversely affect the Debtors' ability to consummate their sales? A. Q. A. Yes. Okay. Are there currently morale problems at the Debtors?

Yeah, I think I’ve already alluded to the fact that there

are very difficult morale problems at the company. Q. Tell me about what happened with the reduction in force

last week? A. Last week was very, very sad. Brad Maurice, the CEO of the

company, gathered the employees in the corporate headquarters, and I was physically there for that announcement, into a room and announced the fact that the company was unable to find a buyer for the origination platform. tears in the room and a great upset. There were substantial After that, frankly, the

company emptied out and by approximately 12:30, 1 o’clock in the afternoon, there were very few people left in the company

Etlin - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 headquarters that day. Q. A. day. Q. Has the current delay, and I don’t use that word Did even people who had not been RIF'd, leave? That’s correct.

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Almost everyone left and went home for the

pejoratively, has the delay in getting the plans put into place so far caused any employees who we wanted to stay, who we had originally listed as participants in the plans, to leave? A. Q. Yes. And in fact, I think we heard earlier that’s why we had to

revise the plans, 'cause some of the folks are leaving, aren’t they? A. That’s correct, and the fact that -- because the listing --

while we couldn’t tell employees that we could assure them that the plan would be approved, we did attempt to tell them that they were included individually in the plan, and while we couldn’t guarantee them what the amounts might ultimately be because we were negotiating with the Committee and it was subject to Court approval, we did give them an idea of the range of the payments in the plan. And then they asked when it

was we thought it would be approved, and we told them when it was. And unfortunately in several cases, they didn’t believe

that they could wait. Q. Thank you. Ms. Etlin, I want to ask you just a few more

questions.

First, a couple of questions that relate to the

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U.S. Trustee’s position that some of the Vice Presidents and Assistant Vice Presidents are officers and, accordingly, insiders. Let’s discuss some of the plan participants' role at You’re generally familiar with the participants That’s

the Debtors.

set forth in the Key Employee Incentive Retention Plan. the lower level plan, right? A.

Yes, there are actually many of those employees I work with

day to day. Q. Okay. And you’re aware of the fact that 28 participants in

that plan have the title of either Vice President or Assistant Vice President? A. Q. Yes, I am. Okay. Why were those individuals included in the Key

Employee Incentive Retention Plan, sorry, the lower level plan, as opposed to the Key Employee Incentive Plan? A. Because of the nature of their jobs. Again, I think it’s

been discussed in Court previously that this is a financial institution, and as such, you know, practically everyone including the janitor has a VP or AVP title. And so while many

of those employees may have that title, the nature of their job function is more supervisorial or middle and lower level management, as opposed to something constituting an actual officer or policy maker of the company. Q. A. Is that pretty common in the financial services industry? Yes, it is.

Etlin - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Okay. And let’s just chat about those individuals for The 28 participants in the Key Employee

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another moment.

Incentive Retention Plan, who have the title of Vice President or Assistant Vice President, are any of them officers of the parent company? A. Q. No, they’re not.. Okay. Do any of them function in the role of a senior

officer with regards to policy making, for instance? A. No. MR. STERN: Okay. Your Honor, I’m now just going to

ask a couple of questions about the confidentiality issues that we discussed and then I’ll close. BY MR. STERN: Q. Ms. Etlin, if detailed information about the proposed

incentive and retention payments to these participants was publicly disclosed, would that information be useful to the Debtors' competitors? A. Q. A. Yes, it would be. And why’s that. Well, it sets the bar for how much of a signing bonus you If you know

have to give to somebody you’re trying to hire.

that they’re subject to an incentive retention plan that could pay a range of let’s say 25 to $50,000, all you have to do is include that to up the ante to the extent that you want to recruit them.

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So competitors could use that same information to hire away

our critical employees? A. Yes, and in addition, given that you know that the awards

are a range of salary, that also gives you a pretty good proxy for what the employee’s actually making and disclosing confidential employee compensation information. Q. So, disclosing this information could, at the end of the

day, defeat the purpose of the incentive and retention plans, couldn’t it? A. Yes, well, the other issue obviously is it’s a matter of

general business practice that people do not disclose inside a company what other employees make. Q. A. Q. Is that because it could cause dissension within the ranks? Absolutely. Thank you, Ms. Etlin, I have no further questions. MR. STERN: cross examination. THE COURT: All right, let me ask, before we go to And Your Honor, I tender Ms. Etlin for

the U.S. Trustee, anyone else who’s in support of the plan to - who wishes to examine Ms. Etlin to step up now. MR. POWER: Your Honor, I have a couple of

Give me one second. THE COURT: MR. POWER: All right. Your Honor, I’ll be brief. CROSS EXAMINATION

Etlin - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. POWER: Q. Ms. Etlin, I heard your testimony.

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Could you please focus

a little bit -- I’d like to focus on the claim side, and these people are part of this plan, and what they will do to assist the estate in terms of dealing with claims. with the term EPD? A. Q. A. Q. A. Q. Yes, I am. And what does that term mean to you? So, it’s an early payment discount. Well, early payment default. Default, yes. And it’s actually in connection with the warehouse lenders The -– Are you familiar

and their claims, if they find that their loans they put back that they assert are in early payment defaults, the company has to take those back? A. Q. Yes. And are you familiar that -- with those potential claims in

this estate? A. Q. Yes. And do you have a sense of what the volume of those claims Are they in the tens of millions, hundreds of

might be?

millions, any sense? A. Q. I think they’re in something that begins with a billion. A billion, okay. Is it your understanding that some of the

people who are part of this are company people who have

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knowledge of how those claims work and how the arrangements for warehouse lenders work? A. Yes, specifically the capital markets, people in the plan,

as well as a number of the accounting department people in the plan, are the primary parties with knowledge of refuting those potential claims that would come from the various parties, not only the warehouse lenders, which you mentioned, but the parties of securitizations, which also have those kinds of potential rights, whole loan purchasers, and others. Q. Now those people are being incentivized to stay and help

the company and you yourself work through those claims and try to resolve them so this Court doesn’t have a huge amount of litigation to deal with, is that correct? A. Q. That’s correct. Do you have a view as to what -THE COURT: (Laughter) MR. POWER: We’re working hard, Your Honor. I have You’re doing that all for me?

another reason, though, I'm about to ask. THE COURT: BY MR. POWER: Q. Which is do you have a view of whether it would be less Okay.

expensive for the estate to retain those people to help resolve those claims or to retain outside professionals, such as accountants and financial advisors, to resolve those claims?

Etlin - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Well, it’s way less expensive. It’s always way less

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expensive to retain the people who have the greatest knowledge with regard to the claims, be they a vendor claim, a lender claims, the claims we’ve been discussing, and others. And

that’s the reason that I fought so hard to retain the core group of people that we’ve retained at the company, so that we can actually have an accelerated claims reconciliation process as part of this case and really get to a timely claims pool for purposes of a plan. Q. So not only is the plan designed to assist in getting the

sales done, it’s also designed to cut costs in terms of professionals and get to a plan sooner, is that -– A. Absolutely. If I ended up with a large amount of turnover

on this case, not only would it necessitate hiring of lots of people from organizations like account-temps and others, but I would have to also put a large number of additional Alex Partners people on site, and frankly, it is way more efficient and effective to use the company’s own people who have that great accumulated knowledge to do the process. Q. Thank you. Let’s talk briefly about the origination

platform. equipment.

I think you described generally the leases and the Let’s talk about the volume. Approximately how

many leases and locations were part of that platform around the country? A. Do you know?

300 approximately.

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And is the company currently now, because it’s shut down,

have to work through rejecting those leases, and getting the equipment, and assembling all that information for 300 locations throughout the country? A. Yes, and in addition, to comply with the requests of the

SEC and others, all data associated with -- confidential data associated with the actual operations of the loan process in those branches, and all of the IT equipment has to be specially lifted out, secured, categorized, and shipped back to Southern California where it will be retained until such time as we’re free to wipe the hard drives and return things and destroy actual paper records. So there’s a very complex process. It’s

not just sort of abandoning or selling off the actual furniture in those locations. It’s actually lifting out all of those

assets associated with that information gathering process. Q. And are the Debtors' employees, with the assistance and

oversight of Alex Partners, going to try to vacate those places so the leases can be rejected? A. Yes, we’re in the process of trying to do that as quickly

as possible now. Q. And will that help decrease the claims that are asserted

against this estate? A. Q. Yes. And those are administrative priority claims currently, for

the post-petition period?

Etlin - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A.

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For the post-petition rent as well, yes, and we’re having

negotiations simultaneously with as many landlords as we can possibly handle in an attempt to also minimize the landlords ultimate claim for the rejection of that lease. Q. One other area, if you could you briefly describe to the

Court where you started with the plan, and I guess through the good faith negotiations, where you’re ending up just in terms of gross numbers, so the Court can get a sense of the efforts made by the Debtor in terms of making this plan reasonable, at least in our view? A. Yeah, I’m trying to remember exactly back to the original

plan that was filed with the Court, Mr. Powers, I think –Q. A. Wasn’t it slightly more than $7 million when you first -– Yeah, I think it has been reduced by over half from the

original plan that was contemplated. Q. And the original plan that was contemplated also had senior

management involved, including the Chairman and other people, is that correct? A. Yes, the entire executive management team of the company

was originally included in the plan, and as we previously announced, the company and the management team and the Board agreed that a number of them would step aside and voluntarily remove themselves from the plan in order to facilitate the timely approval for the company’s employees. Q. So in addition to basically more than 50% reduction in the

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dollar amount and the taking out of the senior people, was also the focus of the plan shifted from basically guaranteed payments to incentive based payments based on sales and performance? A. Is that fair to characterize it that way?

Yes, there were a greater number of people that actually

had a retention component to their overall compensation under the plan, and now a greater number of people are in solely the incentive portion. And only those people who are not officers

of the company are down in the portion that has a retention portion. Q. Just one more question. Are you aware of certain buyers or

potential buyers of the assets expressing concern about retaining employees? A. Q. Yes, we hear it fairly regularly. And is that something that they’ve indicated was a major

risk factor in terms of being able to purchase the business? A. Yes, as I had previously indicated, it’s actually

documented in the Carrington deal that we must retain a certain minimum percentage of the employees in the servicing platform in order to have them remain committed under the Asset Purchase Agreement. MR. POWER: Thank you, Your Honor, no further

All right, anyone else on the proponent

Okay, U.S. Trustee.

Etlin - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. MCMAHON: Q. Ms. Etlin, good evening. CROSS EXAMINATION

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You’re not an investment banker,

would that be a fair statement? A. Q. That’s correct, I’m a turnaround and crisis manager. And you don’t provide executive search consultant services,

is that accurate? A. Q. A. Q. That’s accurate. You’re not an economist, would that be a fair statement? That’s correct. And would it be a fair statement that AP Services, your

firm, doesn’t provide services in any of the three aforementioned areas which I just mentioned? A. I believe so, other than temporarily taking officer roles

which might fall under the, you know, executive search I guess is how you -- area, I don’t believe so. Q. Well, executive search I would define as assisting

executives in becoming employed at other places within a given industry. A. Q. No, we’re not engaged in that business. Okay. Now, with respect to the plans that are before the

Court today, when did the construction of the plans begin? A. There was a discussion ongoing with regard to the need for

the plans when I walked in the door, you know, on March 21st. I don’t know how much earlier that discussion had been

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occurring, but clearly there was a significant concern on the part of management with regard to the extensive turnover the company was having and expected it would continue to have through this process. Q. Okay, and do you know when the plans were in the form that

they’re presented to the Bankruptcy Court with the initial filing of the motion were finalized? A. I believe they were finalized just very shortly before the

actual filing of the motion. Q. So it would have been in very late March or early April,

would that be fair? A. Oh, no, by before the filing of the motion, I mean within

24 to 48 hours before the filing of the motion. Q. Okay. Now, prior to the submission to the Bankruptcy

Court, were the completed incentive and retention plans presented to senior management for their review? A. I don’t believe that the senior management was, other than

the one or two of them that sit on the Compensation Committee, were asked to attend Compensation Committee meetings, were actually involved in the detail review of those plans. The

primary responsibility for the review of those plans rested with the Compensation Committee and the Board of Directors. know Mr. Maurice and Mr. Lambert, in their respective positions, were involved extensively in those discussions. Q. Okay. At the time the plans were presented to New I

Etlin - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Century’s Compensation Committee, who was on the committee? A.

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The Compensation Committee consists of Fred Forester, who’s

the Chairman of the Board, and Don Lang, who is a member of the Board of Directors. I also believe Mr. Maurice sits on the

committee, and Mr. Lambert does attend some meetings of the committee, but I don’t believe, since he is not a director of the business, he sits, I think, at their invitation, because he is the SVP in charge of the compensation benefits and Human Resources area of the company. Q. Okay. And the Compensation Committee reviewed and approved

those plans, correct? A. Q. Yes. Okay. Were they ever presented to the full Board prior to

being filed with the Bankruptcy Court? A. Q. Yes. Okay, so the review, if I got the chronology correct, it

went to Compensation Committee, the Board subsequently as a whole approved the plans, and then they were filed, correct? A. Q. That is correct. And that entire process occurred within, you know, 24 to 48

hours before the filing of the motion? A. That’s correct. The Debtors' Board has been meeting very

actively, and I believe at that time were still in the mode of meeting if not every day, every other day. Q. Okay. Now, the plans were presented to the Compensation

Etlin - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Committee in the form of a proposal, I presume, correct? A. Yes, the Compensation Committee, I believe, gave a

183

direction to CDG to think through the kinds of provisions that one might include in this kind of a plan and asked for assistance from the company’s professionals, O'Melveny and us with regard to the scope or the kinds of people that might be included in such a plan and what kinds of typical provisions there were, those kinds of things. Q. Okay. And at the time the plans were initially presented

to the Compensation Committee, was it your view that the plans as they were presented then were the bare minimum necessary to achieve the goals you wanted to achieve by implementing the plans? A. Well, there were multiple revisions, so let me -- I think

the first revision, as is often the case -- the first draft, as is often the case, included a lot of people and some fairly substantial amounts of money to be paid to those people. And

part of our role and part of the role of the company’s counsel is then to talk through the reasonableness, given the context of the case, and whether that amount is, you know, high, low or otherwise. So I do not believe that it would be fair to

characterize the initial drafts of the plan that I saw as being ones that would be the bare minimum. there today. Q. So your testimony is, then, that even before the plans in I think we certainly are

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the forms that they were filed with the Bankruptcy Court made it to that point, that there were drafts that included more employees, more money, is that correct? A. Q. Yes. Okay. Now, you working in conjunction with CDG, the other

professionals, made a -- presented something to the Compensation Committee, the plans in the proposed form, correct? A. Actually, CDG made the presentation, and we were asked by

the Compensation Committee -- I and the other professionals were asked for commentary as the Compensation Committee reviewed those things. But the plans were actually -- the sort

of laboring oar for the development of the plans themselves and the structure of the plans belong to CDG. The inclusion of the

employees was the role of management and myself and others. Q. Were there any -- was there anything in the plans as they

were proposed to the Compensation Committee on the eve of the filing of the motion that was rejected by the Compensation Committee? Any recommendations that you made, that CDG made,

that the Compensation Committee said, "No, can’t have this"? A. Q. A. Yes. What? I think there were several revisions to take the plan down,

and there was discussion of some of the provisions that ultimately ended up in the plan with regard to the employees

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who might be subject to investigation by the Audit Committee, that kind of thing. Q. Okay. And you turned around and made certain revisions

along the lines of what you just described, correct? A. I made them, management made them, when we went back to

certain people within management and said it’s really too many people, what can we do; you know, those kinds of things. It

was a very collaborative process with multiple points of input. Q. Okay. The presentation to the Board’s Compensation

Committee, who was present at that presentation of the plans, if you will? MR. STERN: which time? MR. MCMAHON: We’re talking -- I think we’ve only I’ll rephrase to make Excuse me, I’m sorry, objection. At

referenced one meeting in the testimony. it clearer. Thank you.

BY MR. MCMAHON: Q. With respect to the presentation of the plans to the

Compensation Committee prior to the filing of the motion with the Bankruptcy Court, there was presentation that you referenced which CDG led, correct? A. Yes, there were actually multiple meetings, but you’re

talking about the one just prior to the formal approval, correct? Q. Correct.

Etlin - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Yes. What date did that occur on? I don’t specifically recall. I believe I’ve already

186

testified it was within 24 to 48 hours of filing the motion. Q. A. Now, who was present at that meeting? I believe the individuals that I previously referenced, I think the company’s I know Ms.

either in person or on the phone.

General Counsel typically participates, as well.

Uhland was present, Mr. Glassner from CDG, the members of the Comp Committee. Q. A. And yourself? I don’t recall whether I was present at that particular

meeting or the one right before -- I can’t specifically say I was specifically present at that final meeting at which that approval was given. Q. Okay. Now, at a certain point, the Debtors communicated to

the proposed plan participants their status as such, correct? You had to let them know that they were being incentivized or designated to be retained, correct? A. Yes, there were quiet conversations. Again, there was no

formal written notice because obviously anything we do is subject to approval by the Bankruptcy Court. So you can’t, you

know, provide written notice to employees until such time as the plan is approved. But there were quiet conversations

between the members of the EMC and many, if not all, of the

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employees that were potentially covered by the plans; not right away, but fairly shortly after filing the motion. Q. Okay. So in fact, the employees were not informed that

they were designated as plan participants until after the motion was filed, is that your testimony? A. The employees who were actually covered by the ultimate

plan that was filed were informed after the plan was filed. However, there was substantial conversation internally at the company, and people wondering about when we were going to file it, and whether or not they were going to be included prior to the filing of that motion. Q. Okay, now, let’s put this in context then. When did the

company retain Lazard? A. Well, I think it was March 12th, but I’m not entirely sure.

It was sometime in that portion of March. Q. Okay, and Lazard immediately started its work of leading

the Debtors' sale efforts, correct? A. Q. Yes. Lazard put together offer and sale materials with respect

to the sale of what I’ll call the LNFA and the residuals portfolio, correct? A. Q. Yes. Lazard put together materials to sell the servicing

business, correct? A. Yes, all of those things were in the process when we were

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They weren’t all complete at the time, for example, I

walked in the door. Q. When did the Debtors enter into a confidentiality agreement

with Greenwich Capital with respect to the LNFA residual portfolio? A. Q. I don’t specifically recall. And when did the Debtors enter into -- begin negotiations

over the terms of an Asset Purchase Agreement with respect to the LNFA residuals portfolio with Greenwich? A. Those conversations were already somewhat under way when I

walked in the door, but I don’t have a specific recollection of when they commenced. Q. Okay. And do you recall when the actual Asset Purchase

Agreement with Greenwich was executed? A. Q. No, I don’t. Basically, would it be fair to say it was at or around the

time the Debtors filed for bankruptcy protection? A. Q. Yes. You basically walked into Bankruptcy Court with that deal

on the table, correct? A. Q. That is correct. Let’s switch to the servicing business. Do you have an

understanding as to when the Debtors began their negotiate -oh, strike that. Do you understand as to when Carrington

executed a confidentiality agreement with respect to its

Etlin - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 pursuit of the servicing business? A. Q. No. Do you have an understanding as to whether that event

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occurred before or after you came on board? A. Q. I do not. Okay. Do you have an understanding as to when Carrington

began negotiating with the Debtors over the terms of the proposed servicing sale? A. Q. I do not. Do you have an understanding as to whether those

negotiations commenced prior to the bankruptcy filing or not? A. Well, I would assume they did, given that we filed with the

bankruptcy filing and Asset Purchase Agreement it was filed shortly after the filing, but how much prior I wouldn’t know. Q. Just out of curiosity, in light of some of your testimony,

what is your precise role on this engagement for Alex Partners? A. I believe I’ve already described that. Would you like me

to repeat it? Q. Well, sure, I would like to understand specifically what

your sale related role is. A. Certainly. We are responsible for assisting the company

with gathering all of the due diligence materials necessary to support the various sale processes, vetting those between management and Lazard to make sure that they’re accurate, and then making those available in an organized form to the various

Etlin - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 parties. Q.

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So the company walks -- the company files for bankruptcy

protection, and it almost immediately thereafter filed the Greenwich Sale Motion and the Carrington Sale Motion, correct? A. Q. That’s correct. All right. And basically simultaneously, it also filed the

Motion Seeking Approval of the plans that are before the Bankruptcy Court today, correct? MR. STERN: I’m sorry, objection. Are you asking

whether the Plan Motion was filed at the same time as the petitions were filed? MR. MCMAHON: it clearer. THE COURT: BY MR. MCMAHON: Q. At or around the same time you filed the Motion to Sell the All right. I may have mis-heard. No, I’ll rephrase the question to make

Servicing Assets and the LNFA residual portfolio, you also filed the Motion to Approve the Incentive and Retention Plans as they existed at that time, correct? MR. STERN: Sorry, Your Honor, can I object? I

think it’s of record the date that the Motion to Approve the Incentive Plans was filed. I’m not sure if the dates are as I can say that the motion to

close as the U.S. Trustee thinks.

-- the original Motion to Approve the Plans, my understanding just based on looking at the motion, as April 11th, if that

Etlin - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 helps anyone. MR. MCMAHON: Your Honor, I’ll just move on. I

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think we can establish this some other way. THE COURT: BY MR. MCMAHON: Q. Now, from the company’s perspective, which representatives Thank you.

of the company actually communicated to the employees that they were going to be plan participants? A. I think I’ve already testified that those would have been

the responsible members of the Executive Management Committee of the company, the top eight people in the company. It was

their responsibility to communicate as appropriate, quietly with their directly supervised employees their inclusion in the plan. Q. Okay. You did not directly participate in any of those

discussions, did you? A. The initial discussion, no. I’ve had discussions with a

number of employees included in the plan with regard to the context of the plan. You know, there are questions from

employees practically every day about the plan. Q. All right, but the initial communication of their plans,

their status as plan participants was handled by the eight members of that management committee, correct? A. Yeah, that would be appropriate. Those are the people --

those are the bosses of the people who work at the company.

Etlin - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Okay. Given your role with the company, did you

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participate in the process of identifying the sale related performance metrics under the plans? A. If by sale performance related metrics you mean the

potential threshold values and the percentages, I was part of the discussions with regard to what might be appropriate, yes. Q. Okay. Which of the Debtors' other representatives or

employees were involved in that discussion? A. Well, the primary party involved in the design of the plans

was obviously CDG, Mr. Frank Glassner, who is present in Court today. And he was sort of the primary party for organizing the

thought process around that, but frankly, all of the Debtors' professionals participated in and contributed thoughts and comments with regards to the potential structure of those plans and what might be appropriate incentive based compensation given the circumstances. Q. Okay. Were there any persons with investment banking

experience involved in that discussion? A. Yes, Lazard was involved and consulted with regard to the

threshold values and some of the asset groupings. Q. Okay. And would it be fair to say that -- was it Lazard

that actually provided the threshold values, the target numbers that were part of the plans as they were originally filed? A. I don’t know whether they -- it’s proper to characterize I think that they had substantial

that they provided them.

Etlin - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 input.

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Frankly, part of them were already documented, and two

of them were documented in Asset Purchase Agreements, and the third is an estimate based upon a multi-party discussion, and that’s the value attributed to the other asset segment. Q. Now, in constructing the incentive and retention plans,

would it be fair to say that retaining these employees is the primary goal? A. No, I think it’s fair to say that compensating these

employees for the extraordinary effort being asked of them to make sure that these sales close successfully is the primary goal. Q. A. Okay. So -- but would retention be one of the goals?

Well, as to the employees in the bottom tier plan, there’s

a specific retention portion, so yes it is one of the goals. Q. Okay. And with respect to the incentive plans, your

testimony is that retention of these employees, keeping them aboard, is not a goal of the plan? MR. STERN: Objection, that was not the testimony.

The question was is it the primary goal of the incentive plan, and that’s what her testimony addressed. THE COURT: BY MR. MCMAHON: Q. With respect to the incentive plan, is retention one of the Sustained.

goals of the plan? A. Certainly, it’s one of the hoped for outcomes. If you

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provide someone with an incentive and tell them that if they voluntarily resign they won’t receive it, you certainly want them to stick around. Q. Okay. Now during your time of being assigned to this

particular engagement, are you generally aware of the -- become generally familiar with the company’s operations? A. Yes, I believe I already asked that question -- answered

that question. Q. All right, and with respect to the designation of employees

as plan participants under the plans, you previously identified I guess two considerations which factored into that analysis. The first was their -- any specialized knowledge they had relating to the industry, was that a factor, is that correct? A. There was a discussion of the importance of the specialized

knowledge the employee had with regard to the industry, yes. Q. And was their importance to completing the proposed sale A factor in determining which plan

processes a factor as well?

participants were actually selected for participation? A. Yes, as I think I previously testified, there was a

substantial concern, and frankly, it did occur with regard to the Ellington sale, that the initial stalking horse bid was subsequently reduced because certain assets were determined to not be saleable as part that process. And the stalking horse

bid was reduced from 50 million to 47.25 million as a result of that. There were similar concerns with regard to the

Etlin - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Carrington deal. Q.

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Well, were there any other factors that were considered in

determining whether to make someone a plan participant, aside from the two factors we just discussed? MR. STERN: I guess objection, Your Honor, There were a number of things

especially at this late hour.

that were discussed earlier in the testimony, and I think now it’s just a memory game as to what Ms. Etlin can recall that she testified before. THE COURT: MR. MCMAHON: Any response? Your Honor, I believe the witness’

testimony was -- there was testimony elicited as to two factors. I think on cross I’m entitled to confirm whether or

not there were any additional factors that played into the determination as to whether these individuals should be plan participants or not. THE COURT: repetitious. MR. MCMAHON: Sure. I'll allow it, but let’s not be

Would you please repeat the question?

BY MR. MCMAHON: Q. Sure. Aside from the factors we just discussed, are there

any other factors that the company considered in determining whether to designate someone as a plan participant? A. The -- and I’ll just go through them from top to bottom, as

Etlin - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I can’t remember exactly which two factors we’ve already previously discussed.

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Specialized knowledge is one, which is There’s also

specialized knowledge of the industry.

accumulated historical knowledge with regard to their job function within the company and the transactions and various activities that passed over their desk, where the documents are, how to go about obtaining them from the various systems, et cetera. There’s also the ability to replicate that

knowledge; the ease with which we might replicate that knowledge from the outside should that employee choose to take a job elsewhere and the affect that might have on the sale process, both as to timing and potentially as to amount because of the contingencies associated with that. be the primary factors. I think those would I can’t

There may be others.

specifically recall as I sit here today. Q. All right. I have a few more questions for you, Ms. Etlin.

First, would it be fair to characterize these bankruptcy cases as liquidating Chapter 11 cases, based upon your experience? A. Yes, we’re attempting -- I mean, there’s obviously a broad We’re attempting to sell

variety of liquidating Chapter 11's.

as much as an operating business and to preserve employee jobs as possible, but that certainly falls under that broad category. Q. Okay. And the Debtors -- you testified the Debtors have They’re compensating Lazard, what, some

retained Lazard.

Etlin - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

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figure north of $5 million for their work in leading the sale processes, is that correct? A. I guess. Again, I wasn’t a party to Lazard’s fee I assume they’re going to be compensated for the

negotiation.

extensive work they’ve incurred here. Q. Okay. Turning to, specifically, the Vice Presidents and

Assistant Vice Presidents that are part of the retention plans, do you have an understanding as to what their base salary ranges were in 2006, say exclusive of bonus compensation? A. Q. Not that I can specifically recall as I sit here today. Okay. Do you know what their total compensation

arrangements were, salary plus bonus? A. No, if I can’t recall the first item, I certainly can’t

recall the second. Q. Now, in the last version of the plans that were proposed to

the Bankruptcy Court, six employees of the wholesale division were added to the plans, correct? A. That is correct. Those were the employees that were

excluded from participation in the commission guarantee program that the Debtors had put in place prior to the filing. Q. Okay, so they were the subject of the -- I guess the prior

litigation between our office and the Debtors regarding the Wage Motion, correct? A. Q. Yes, that is correct. So let me get this straight. The Debtors come forward to

Etlin - Redirect 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. STERN: Q. redirect? MR. STERN: questions, Your Honor. questions, Ms. Etlin. REDIRECT EXAMINATION I think I have just three or four the Bankruptcy Court seeking relief. We object. The Court

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overrules that relief, and then you come back to the Court and you propose that they receive incentive compensation, is that it? A. Is that the progression? So -- sir, I was present in the Court that day, and I heard And I, frankly,

what was said with regard to those employees. disagree with your characterization.

It was determined that

they were inappropriate to include in the form of the plan that was being approved in conjunction with the First Day Motions, and the Debtor was, I believe in my opinion, encouraged to come back and include them in some form of further retention plan, and the Debtor chose to do so. Q. Okay. Now -- so the Debtors added these individuals to the

plans. that.

I presume that their compensation is -- well, strike

MR. MCMAHON: this witness. THE COURT:

I don’t have any further questions for

All right, thank you.

Is there any

And they’re going to be very general

There were a lot of questions asked of you about, I guess,

Etlin - Redirect 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 work that Lazard did prior to the petition date. some testimony on that subject? A. Q. Yes. Okay. If Lazard, for instance, was putting packages of

199 Do you recall

information together for providing to potential purchasers, where was Lazard going to get that information? A. From the company’s employees and from us. As a matter of

fact, that was one of our first most specific tasks was to help them with an extraordinary volume of information that needed to be obtained from a variety of company employees where there just wasn’t time enough in the day for them to do it. Q. And I think we addressed this point in your direct, but it At the time the employees were working on

may bear repeating.

the sales pre-petition, even if the plans themselves with all their specifics were not yet on file, do you believe that the employees were operating under a belief that they would eventually be provided with some form of incentive pay? A. Q. Yes, I do. Okay. Do you think that we need the employees that have

been identified in the incentive and retention plans to get across the finish line on the sales that have been proposed? MR. MCMAHON: THE COURT: BY MR. STERN: Q. One or two questions on the Assistant Vice Presidents and Objection, asked and answered. Sustained.

Etlin - Redirect 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 able to. A. the Vice Presidents. These are the individuals, as you’ll

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recall, who have been proposed for the retention plan, okay, the retention portion of the plan. There may or may not be

some incentive compensation for some of them, but even though you don’t know their exact compensation, all 28 of them, are these Assistant VP’s and VP’s among the most highly compensated individuals at the Debtors? A. No. As a matter of fact, I previously characterized them

as the individuals that would often bear, in other companies that I’ve worked with, the supervisor title. They’re middle

management to lower middle management individuals. Q. If I were to suggest a range of approximately 45,000 to

200,000 would that help to refresh your recollection as to approximately the salaries of these individuals? MR. MCMAHON: Objection. The witness previously

testified she doesn’t know. THE COURT: Overruled. You may answer if you're

That would, for that level of employee -- and again, about

a third of them I’ve actually had personal interaction with at this point, and so, you know, I would expect that that would be sort of the normal compensation range for somebody of that level of the company. But again, I have -- as I testified

previously, I have no specific knowledge of what they actually make.

Glassner - Voir Dire 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. STERN: Q. A. Q. Mr. Glassner by whom are you employed? Compensation Design Group. S-S-N-E-R. THE CLERK: Thank you. VOIR DIRE Glassner. FRANK B. GLASSNER, DEBTOR’S WITNESS, SWORN THE CLERK: down. MR. STERN: THE COURT: MR. MCMAHON: THE COURT: No further questions, Your Honor. Okay. Is there any recross?

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No, Your Honor. All right, thank you. You may step

We’ll take a 10 minute recess and resume with the next

witness. (Court in recess) MR. STERN: -- appreciate the Court's indulgence.

The next witness will be a lot shorter and then we'll hopefully proceed to argument. THE COURT: MR. STERN: Very well. Your Honor, Debtor’s call Frank

Could you state your full name and spell

your last name for the record. MR. GLASSNER: My name is Frank B. Glassner, G-L-A-

If I refer to that entity as CDG, will you know what I’m

talking about?

Glassner - Voir Dire 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Yes, I would. Okay, what’s your position at CDG?

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I’m the Chief Executive Officer and also the leader of the

Executive Pay Practice. Q. A. Q. A. Q. A. Q. A. Sir, did you found CDG? Yes, I did. And when was that? That was 1991. And you have been with CDG since 1991? Yes, I have. What does CDG do? Compensation Design Group is a compensation consulting

firm. Q. A. Does CDG have any areas of specialty? Yes, it does. In the field of executive pay, incentive

pay, wage and salary administration, performance management, performance appraisal as it relates to compensation programs, sales and marketing incentives, and board of directors pay and compensation issues as it relates to a board of directors. Q. A. Q. A. Q. A. Sir, where were you employed before CDG? At Deloitte & Touche. How many years were you there? Approximately four. And what was your last position at Deloitte & Touche? I had a D Firms Global Rewards Practice.

Glassner - Voir Dire 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. A. Q. A. Q. A.

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And what was the Deloitte & Touche Global Rewards Practice? It was the compensation practice. Where were you employed before Deloitte & Touche? KPMG Pete Marwick. And how many years were you there? Approximately five. Last position at KPMG? The head of the Western U.S. and Asia Pacific Compensation

Practice. Q. Sir, if my math is correct, you’ve spent the last 30 plus

years working in the field of Compensation and Strategy Consulting, is that correct? A. Q. Yes, sir. Do you have experience providing advice on compensation and

incentive plans to clients in either bankruptcy proceedings or reorganizations? A. Q. Yes. Okay. And approximately how many engagements, for

companies in either bankruptcy proceedings or that were going through reorganizations, have you had? A. Q. Approximately 25. Okay. Has a substantial portion of your consulting

experience revolved around developing strategically oriented compensation and incentive plans? A. Yes.

Glassner - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. STERN: Q. Mr. Glassner, has CDG previously provided compensation Q.

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Do you consider yourself to be an expert in the development

of compensation and incentive plans? A. Q. A. Yes. And why is that? I’ve spent the better part, if not my entire career, doing

that. Q. Okay. Have you ever been qualified as an expert in your

field -- excuse me, have you ever been qualified as an expert in the field of compensation? A. Q. A. Q. A. Yes, I have. And how many times was that? Twice. And what court was that in? The State of California Superior Court Family Law Division. MR. STERN: Your Honor, Debtor’s proffer Mr.

Glassner as an expert on compensation and incentive plans. THE COURT: MR. MCMAHON: Your Honor. THE COURT: MR. STERN: You may proceed. Thank you, Your Honor. DIRECT EXAMINATION Is there any objection? No objection from the U.S. Trustee,

consulting services to the Debtors?

Glassner - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. Yes. When did you start? Approximately 2003.

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And have you, personally, provided compensation -- excuse

me, have you personally provided advice to the Debtors since 2003? A. Q. Yes. Okay. And what type of advice has CDG provided to the

Debtors since 2003? A. Advice in the field of its executive pay plans, select

incentive plans, board of director’s pay plans, and compensation issues as it relates to advising the Compensation Committee. Q. As a result of the work that you’ve done for the Debtors

over the last three plus years, have you become generally familiar with the Debtors and their business operations? A. Q. Yes. And are you, generally, familiar with the -- excuse me,

compensation structure for the Debtor’s employees? A. Q. Yes. Are you familiar with the Debtor’s Key Employee Incentive

Plan and Key Employee Incentive Retention Plan? A. Q. A. Yes. Did you play a role with respect to those plans? Yes.

Glassner - Direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. What was your role? Assisted in the design of those programs.

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And when you say you assisted in the design, can you help

me with that a bit? A. Yes, the company, you know, presented the situation of its

reorganization to us, as well as a number of metrics, employees, et cetera., and we designed the plans. Q. So the company provided the goals and the positions

involved and you designed the plans around that? A. Q. A. Q. Yes. Okay. And did you advise the Debtors to adopt the plans?

Yes, we did. Okay. And did you participate in discussions with other

representatives of the Debtors and other folks regarding the plans? A. Q. Yes. Who else was involved in the discussions in which you

participated? A. Select senior management and, where appropriate, the Board

of Directors, specifically the Compensation Committee. Q. Okay. And who are the members of the Compensation

Committee? A. The Compensation Committee would consist of Fred Forrester,

who’s also the Lead Independent Director and Chairman, Dr. Harold K. Black, Donald Lang, and Michael Sachs.

Glassner - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Was the CEO present for discussions concerning the

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incentive and retention Plans? A. Yes, where appropriate. However, discussions involving the

Chief Executive Officer, himself, he was asked to leave the room. Q. A. Q. Okay. And did he do that?

Yes, he did. Okay. Sir, do you have an opinion as to the reasonableness

of the plans? A. Q. A. Q. A. Yes. And what is your opinion? The plans are reasonable. Okay. And why do you believe the plans are reasonable?

Given the magnitude of the situation, as well as the

devastating effect that, from a situational standpoint, it has on its employees, we believe the plan appropriate, as well as important. Q. Okay. Do you have an opinion as to whether the incentives

in the plans are likely to motivate employees to meet the objectives of the plans? A. Q. A. Yes. And what’s that opinion? They would certainly lead them to achieve the successful

disposition of the assets. Q. And do you have an opinion as to whether the payment

Glassner - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. MCMAHON: amounts under the plans are conservative? A. Q. They’re reasonable towards the conservative side, yes. Okay.

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Do you have an opinion of what might happen if the

plans are not approved? A. Q. A. Yes. And what is your opinion? That that would probably provide another significant

incentive for not having a successful disposition of assets and, for that matter, an incentive to leave. Q. A. So people would leave and the sales would fail? I don’t know to the degree that they would fail, but that

would certainly be an incentive, you know, not for the maximization and disposition of assets or possibly could cause it to fail, yes. Q. Let me ask it this way. People may leave and the sales may

fail? A. Q. Yes. Okay. Thank you Mr. Glassner. No further questions at

this time. THE COURT: MR. POWER: questions, Your Honor. THE COURT: All right, U.S. Trustee. CROSS EXAMINATION The Committee have any questions? One second, Your Honor. I have no

Glassner - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Mr. Glassner, good evening. In how many Chapter 11

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bankruptcy cases filed after October 17th of 2005 has CDG been retained in? A. Q. Can you clarify the question? Sure. I’m asking for bankruptcy cases that filed for

protection, Chapter 11 cases have filed for protection after October 17th of 2005, how many cases has CDG been retained in? A. Q. A. Q. Two. Can you name them? Yes, United Airlines and New Century. I’ll just adjust my hearing aid, I apologize, it was United

Airlines? A. Q. That’s correct. Okay. Now United Airlines was a reorganizing case,

correct? A. Q. Yes. So New Century is the only Chapter 11 case which filed New Century is the

after October 17th of 2005 -- strike that.

only Chapter 11 case after October 17th, 2005 that CDG has been involved in, which was a liquidation or is a liquidation? A. I’m not actually sure whether it’s a liquidation or a

reorganization at this point. Q. A. Q. You don’t know? I don’t. Okay. All right, how many clients in the sub-prime

Glassner - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 mortgage lending industry does CDG have, aside from New Century? A. Q. Just New Century. Okay. We heard your qualifications, sir, you’re not an

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investment banker, is that correct? A. Q. A. Q. A. Q. That’s correct. Right. You’re not an executive search consultant, correct?

Absolutely not. And you’re not an economist, either, correct? No. And CDG doesn’t provide services with respect to any of

three aforementioned areas, correct? A. Q. No. All right. Given your expertise, sir, are you aware of any

empirical studies of liquidating Chapter 11 cases which address the correlation between employee productivity and the prices obtained for the sales of assets? A. Q. Could you clarify the question, I’m confused? Sure. Are you aware, given your expertise, are you aware

of any empirical studies of liquidating Chapter 11 cases which address whether there is a correlation between employee productivity on the one hand and the prices obtained for the sale of the company’s assets on the other? A. As I’ve stated, sir, I’m not an economist and I’m not

qualified to draw those conclusions.

Glassner - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Honor. THE COURT: Certainly. Thank you. Q. Okay.

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You’re not familiar with any such studies based upon

your current position from reading materials in journals and the like? A. Again, I’m not an economist. I’m not qualified to draw

those conclusions. Q. Very good. Now when was CDG retained for the purpose of

putting together the compensation plans that are the subject of the present motion? A. Q. CDG has had retention since 2003. Let me re-ask my question. There’s a motion on file,

correct? A. Q. To the best of my knowledge, yes. All right, and CDG was retained to provide services in

connection with constructing the plans that were -- are the subject of that motion, correct? A. Q. Yes. CDG was retained to provide advice to the Compensation

Committee in connection with the plans that are the subject of the motion, correct? A. Yes. MR. MCMAHON: I’d like to mark an exhibit, Your

(U.S. Trustee’s Exhibit-1 marked for identification) BY MR. MCMAHON:

Glassner - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. Sir, I’m gonna ask you to take a look at Exhibit U.S.

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Trustee-1 and tell me if you recognize the document? (Witness reviews document) Yes, I do. What is the document? The document is an Application of Debtors and Debtors-in-

Possession for Order Authorizing the Retention and Employment of Compensation Design Group, this compensation specialist to the Debtors, nunc pro tunc, to the Petition Date pursuant to Sections 327 Sub (e), and 328 of the Bankruptcy Code and Bankruptcy Rules 2014, 2016, and 5002. Q. Now if we take a look at Exhibit B to the application,

there are two separate engagement letters appended thereto, correct? A. Q. Can you direct me to them? Sure it’s Exhibit B, I want to say it’s in the middle of

the document, and the first engagement letter is dated March 9th and it’s entitled “Engagement Letter for Management Services.” Do you see that? A. Q. Yes, I do. Okay. Now under this first engagement letter here, which

is entitled “Engagement Letter for Management Services,” the letter indicates there in paragraph 1.1 that the -- you were retained to provide advice regarding {quote} “total compensation arrangements” {end quote} related to the

Glassner - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

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management, the company, and its board of directors, correct? A. Q. Yes. Now under the second engagement letter, which is appended

at the end of the first, it’s entitled “CDG Engagement Letter for NCFC Board of Directors.” front of you? A. Q. Yes. All right, and if you would describe for me, sir, how the Do you have that document in

services in the second engagement letter differ from the services you’re providing in connection with the first? A. 1.1 under this letter states that CDG agrees to provide

assistance to the NCFC Board of Directors, through it’s Compensation Committee or the Chairman of the Board of Directors, by providing consulting services concerning executive and board compensation arrangements as related to the Board’s responsibilities set forth in its charter. CDG

acknowledges and agrees that the engagement shall be directly with the Board. With respect to any services rendered by CDG

to the Board, CDG and the Board acknowledge that any changes to this agreement must be approved by the Board and CFC shall not be a party to such engagement and the Board shall assume the rights and obligations of NCFC hereunder. Q. Okay. Now the -- so under the first engagement letter Would that

you’re constructing a compensation plan, correct?

be fair, you’re providing advisory service related to the

Glassner - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. construction of a compensation plan? A.

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No, I think that what would be a fair statement would be

that we were advising the company on its total compensation arrangements up to, and including, but not limited to, its base salary arrangements, its incentive pay, its executive pay, et cetera. And it would be fair to state that under the

engagement letter for the NCFC Board of Directors, under best practices, that we would be providing counsel to the NCFC Board of Directors, through its Compensation Committee, to all of their arrangements or things that they had oversight under, as it states under their charter, including the company’s total compensation programs, executive pay as it relates to its Section 16 officers, as well as their own pay, as well as their general oversight of the company. Q. Sir, with respect to the services that are contemplated -MR. STERN: I’m sorry, I’d like the witness to be

able to finish his answer. THE COURT: Thank you. I would too.

BY MR. MCMAHON: Q. A. With respect to the services that are -May I finish my answer? THE COURT: Go ahead. I will restate that as it relates

Thank you, Your Honor.

to the Board of Directors, that we provide advisory services to

Glassner - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

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them and the Board of Directors under all things that they have under their charter, including oversight of the company’s total compensation programs, executive pay arrangements, and for that matter, total compensation arrangements as it relates, specifically, to Section 16 officers, as well as their own arrangements, the arrangements of the Board of Directors. in general, the Board of Directors, through its charter and best practices, has general oversight of the company’s total compensation programs. BY MR. MCMAHON: Q. And you’re providing advice both to management and the So,

Board, with respect to the total compensation arrangements, is that accurate? A. Q. That is correct. Okay. Now paragraph 22 of the application that’s before

you is Exhibit U.S. Trustee-1 indicates that you and a Mr. Jason Taylor were the CDG employees that were providing the bulk of the services -A. Q. A. Q. A. Can you direct me? -- under the engagement letters, is that accurate? On what page is that, sir? It’s paragraph 22 of the application. There’s many paragraphs here, maybe you can direct me to

it, just to save the Court’s time. Q. Page 8.

Glassner - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. Yes, sir.

216

Now in preparing your advice and recommendations relating

to the compensation plans, did you consult with any employees or professionals of the Debtors on the subject of identifying potential plan participants? A. I -- can you ask me the first question, you had mentioned

someone’s name? Q. A. Q. Sure, let me break it down. Yes. Did you provide any advice or recommendation to New

Century’s management regarding who should be a participant in the compensation plans that are the subject of this motion? A. Specifically with regard to the Key Employee Incentive

Plans? Q. A. Q. A. Correct. Yes. All right. And I might clarify that, we were presented with the

participants of the plan, we did not advise them on the choice of employees. Q. Okay. With respect to your advice or recommendations

relating to the plans, did you consult with any employees or professionals on the subject of the sale related performance metrics that are embodied in the plan? A. To the degree that we were advised of those metrics, yes,

Glassner - Cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

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we were advised of those metrics by company employees, as well as the Board of Directors. Q. So you did not say -- you did not generate or come up with

those metrics, you were learned of them from the company, is that accurate? A. We were advised of them by the company and the Board of

Directors, who I believe were also advised, or I should say, specifically, the Compensation Committee, who reviewed them with the Finance & Audit Committee to assure that those metrics were correct and then we were given those metrics. Q. Now New Century ultimately acted on your advice and filed

the motion that’s before the Court, correct? MR. STERN: I’m sorry, there’s a motion that’s an

exhibit and there’s a motion that we’re talking about today. I’m sorry to interrupt, I just to make sure I know which motion you’re talking about. MR. MCMAHON: Sure, we’re talking about the motion

that was filed initially with the Court. A. I’m still confused. I’m not sure which motion you’re

talking about. MR. STERN: Is it the Retention Application or the

Motion to Approve the Plans, I’m sorry, is my question, sir? BY MR. MCMAHON: Q. Let me back up and rephrase. What form did the advice

which you provided to management take?

Glassner - Redirect 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. The advice was on the specific architecture of the plan

218

presented. Q. Okay. Did you comment on the plans that were presented in

writing or did you have oral communications with the company’s management or both? A. Q. Both. Did either the Debtors, you know, the company’s management

or New Century’s Board reject any recommendations you made relating to which employees should be designated as participants? A. Q. We did not state which employees should be in the plan. You didn’t make any recommendations on that subject, one

way or the other? A. No. MR. MCMAHON: Your Honor, I don’t have any further

questions for this witness. THE COURT: BY THE COURT: Q. Mr. Glassner, without regard to the purpose of either plan, All right.

how would you describe to me the similarities and differences between the two? A. Q. A. The similarity and differences between the two -Plans that the Court is being asked to approve today. The similarities between the two of them are both plans,

from the standpoint of being an incentive expert, both plans

Glassner - Redirect 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. STERN: Q. Sir, you were asked some questions about having two are really incentives for the successful disposition of the

219

assets and the maximization of the disposition of the assets for the Creditors. Q. What are the differences? How would you describe the

differences? A. The differences are is that the lower plan, the Key

Employee Incentive Retention Plan, has a retention element to it, where appropriate, that would assure, where appropriate, that those employees are retained for a specific period of time with a guaranteed retention portion for the period of time that they stay with the company. THE COURT: MR. STERN: Any redirect? I have just, I think, literally one or

two questions, Your Honor, and with due respect to Mr. McMahon, I think it was because there was almost a little bit of discovery taken on the retention application and I just want to make sure the record is clear on a couple of points. REDIRECT EXAMINATION

different engagement letters, do you recall being asked questions about them? A. Q. Yes, I do. Is having two different engagement letters, one -- and I

think was described as being -- and you were providing services

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220

to management and the other to the Board of Directors, is that accurate? A. Yeah, I think it was directed to me, personally, and, no, Our firm Compensation Design Group

that is not correct.

provides counsel to the company, both to the Board of Directors and to management. Generally, in best practices to the degree

that advice is given directly to management or based on the company’s compensation programs, that is conducted primarily by Jason Taylor with oversight by me, Frank Glassner. I primarily

provide counsel and direction to the Board of Directors with input from Jason and other senior executives. Q. I guess what I wanted to ask you, is having these, you

know, two different engagement letters consistent with best practices? A. Q. A. Yes, absolutely. And are there any studies that support that? Yes, there’s a recently completed Blue Ribbon Panel that

was put together by Dr. Carolyn Brancato, on behalf of the Conference Board with a panel of experts, as well as input from over 370 public company directors, which basically concluded that there was no evidence that better governance was given by one consulting firm or two consulting firms. As a matter of

fact, you know, quite contrary to it, with regard to Home Depot, Pfizer, the New York Stock Exchange, Global Crossing, et cetera., both companies were represented at the board level and

Closing Argument - Mr. Stern 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A.

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management level by, in fact, two different compensation firms and I think that, without going into depth, the end results of those were obvious. To the degree that companies use one

consulting firm to advise, or I should say a public company using one consulting firm to advise both the board or directors and senior management, that we have stringently followed those guidelines. MR. STERN: THE COURT: MR. MCMAHON: THE COURT: Okay, no further questions, Your Honor. Any recross? No, Your Honor. Thank you, sir, you may step down.

Thank you, Your Honor. (Witness steps down) THE COURT: All right, does the Debtor have any

other evidence in support of its motion? MR. STERN: I think we’re done with our witnesses,

Your Honor, and would like to proceed with argument, if that’s okay with you. THE COURT: she has any evidence. Well let me ask the U.S. Trustee whether I take it there are no witnesses, but is

there any other evidence you’d like to offer in support of your objection? MR. MCMAHON: Your Honor, just to complete the

record, I would like to move the admission of Exhibit U.S. Trustee-1 and also have the Court take judicial notice of the

Closing Argument - Mr. Stern 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 point. THE COURT: MR. STERN: Is there any objection to either? No, I think I’d have a hard time

222

Debtor’s Application to Employ Lazard in the Retention Order. I have copies here available for the Court. THE COURT: MR. MCMAHON: Right. I don’t think that’s a controversial

objecting to either, Your Honor. THE COURT: All right, they’re admitted.

(U.S. Trustee Exhibit-1 admitted into evidence) THE COURT: Thank you. All right, does the

Committee have any evidence it wishes to offer? MR. POWER: on the record -THE COURT: MR. POWER: THE COURT: MR. STERN: All right. -- clearly before the Court. Let’s proceed with argument then. Okay, Your Honor, you’ve heard the I think it’s helpful to go back No, Your Honor. The Committee will rely

facts, let’s look at the law.

to the specific bases for the U.S. Trustee’s objection because then we can walk through those bases and, respectfully, I hope prove to the Court that those, the objection should be overruled. The U.S. Trustee’s arguments essentially fall into -- or objections, Your Honor, essentially fall into three buckets.

223 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 The first argument is that the Key Employee Incentive Plan may be a disguised retention plan because in the U.S. Trustee’s view the goals are too easily met, which makes it more like a retention plan. And, accordingly, the Key Employee Incentive

Plan may violate 503(c)(1) because the participants are insiders. The second argument is that as to the 28 Vice Presidents and Assistant Vice Presidents in the Key Employee Incentive Retention Plan who will receive retention payments, that plan violates 503(c)(1) because these 28 V.P.’s and Assistant V.P.’s, supposedly, are officers and, thus, insiders. And the last argument really, although it’s got many subparts, is that the plans are not justified by the facts and circumstances of the case. And, Your Honor, we respectfully

submit that the facts that were presented to the Court today, as well as the applicable law, are contrary to the U.S. Trustee’s positions. And let me break those three positions

down and address them individually. Let’s start out with the Key Employee Incentive Plan. Your Honor, the Key Employee Incentive Plan is just that. is an incentive plan. It

While every good incentive plan has some

retention component because it motivates employees to -- excuse me, because it motivates employees to stay to earn the incentive. You can’t earn the incentive if you leave. The

question is, and as I think Your Honor, himself, has previously

224 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 recognized, what is the primary purpose of the incentive plan? Is it incentive or is it retention? And based on the evidence

that was presented today, Your Honor, it is clear that the primary purpose of the Key Employee Incentive Plan is incentives not retention. The employees are -- entitlement to

payment under that is not based on employment through a specified date. They can stay on the job forever, quite

frankly, Your Honor, but if the business goals aren’t accomplished the participants don’t get paid their incentive bonus. Everyone agrees, by the way, that those business goals The testimony that Your Honor

are beneficial to the Estate.

heard today was that the business goals are not lay ups and that there accomplishment is not assured. The participants And, Your

have important roles to play to achieve those goals.

Honor, the evidence on those points today is un-rebutted and un-refuted. The U.S. Trustee cites two cases in opposition, one of them is In Re: Dana, where the Court observed that certain EBIDAR targets at issue were not lay ups, and In Re: Nobex, where there was incentive pay based upon achieving a sale price in excess of a very low $3.5 million stalking horse bid and the incentive plan in that case actually expressly recognized specific tiers up to and in excess of $15 million. In other

words, about four times the size of the low stalking horse bid. Now neither of those cases says that you can’t use the

225 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 achievement of a stalking horse bid as a trigger for incentive pay, which is essentially what the U.S. Trustee is arguing today. In fact, the U.S. Trustee cites no case that says you

can’t use the achievement of a stalking horse bid as a trigger for incentive pay. And, Your Honor, that’s not surprising The facts of record

because each case turns on it’s own facts.

here demonstrate that the employees of the Debtors have already engaged in a incredible amount of work in reliance on the belief that they would receive some form of incentive pay and that there is still an incredible amount of work for these employees to do in order to consummate these sales. Your

Honor, selling these assets is not like selling a car, where you simply agree on price and the purchaser drives off. Now a similar incentive plan, to the plans before the Court, Your Honor, was approved by Judge Gross in the Global Home Products case, which we cite in our motion. And the order

in that case reflects the fact that there was some similarity between the plans. And I’d just like to take a moment and hand

up a copy of that order because if walk through it we’ll, in fact, see that there was similarities in the plan in that case and the ones that were seeking to have approved today. hand up the copy of the order, Your Honor? THE COURT: Yes. Can I

(The Court receives document) MR. STERN: Let’s essentially walk through the

226 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 findings on the second page in this order. a few paragraphs, Your Honor. I just want to read

There is a great risk at this

hour that I may turn into mush mouth, but I’ll do my best not to. “It is hereby found, and determined, that the motion involves the creation of a performance based management incentive plan, as such plan has been modified as set forth in the record at the hearing. Conditioned and payable upon the

closing of a going concerned sale of substantially all assets of the Burns Group, Debtors. Given the financial condition of

the Burns Group, Debtors, a prompt sale of substantially all of the assets of the Burns Group is critical to maintaining the going concerned value of such business. The Debtors have

proposed a going concerned sale of substantially all assets of the Burns Group, Debtors, for a purchase price of approximately $33.5 million, subject to certain adjustments. The modified

incentive plan is designed to appropriately compensate the Burns sale employees to ensure that they remain motivated to perform the requisite tasks to effectuate a going concerned sale of the Burns Group, Debtors, given the enormous additional burdens placed on the Burns sale employees from the time of the decision to sell the assets through the approval of the sale procedures, and that will be required of those employees through the closing of the sale.” MR. MCMAHON: Your Honor, Joseph McMahon, just one

227 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 point. I would -- and say, object to the Court’s acceptance of I don’t know what

this document by itself under the record.

the point is trying to be made, other than on one day in this district a plan was approved. But we don’t have the underlying I think, at a

motion, we don’t know what the metrics are.

minimum, it’s appropriate to limit whatever notice that the Court is taking with respect to what was just given to you. THE COURT: MR. STERN: Comments are noted. Your Honor, I would note, simply, that

this order was expressly cited in our motion, so it shouldn’t be a surprise that we’re discussing it. But, and in fact, I

looked for -- we tried to find a copy of the transcript of this hearing and, apparently, it was never transcribed, so we’ve got what we got. But anyway, Judge Gross goes on to say “the Debtors have demonstrated a compelling and sound business justification for authorizing the modified incentive plan and the terms of such plan are fair and reasonable, under the circumstances, and provide a substantial benefit to the estates. And the modified

incentive plan is a performance based plan that is not subject to the limitations on retention and severance plans set forth in Section 503(c) of the Bankruptcy Code.” I provide this, simply, as an example because when one reads the U.S. Trustee’s objection, one would think that the type of plan we are proposing is very unusual. In fact, it is

228 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 not. case. Every plan depends on the facts and circumstances of the Frankly, if you look at Exhibit A to the order that I’ve

just handed up to the Court in Global Home Products, when you look at the incentives as a percentage of annual salary on the last page, I mean, this plan is rather rich, the plan in Global Home Products, compared to our incentive plans, which typically don’t go up that high. And anyway, as here, the incentive pay in Global Home was conditioned on closing of a going concerned sale already in hand. As here, the incentive pay in Global Home was designed And

to motivate employees to complete a sale already in hand. Judge Gross ruled that the plan was not retention and severance, or severance, and he approved the plan. Now, Your Honor, the point here is there is nothing unusual about our incentive plans.

At the end of the day, once

again, it’s a matter of what are the facts, what are the circumstances, and, you know, Your Honor’s ruling thereon. And

we believe the facts and the circumstances that we’ve presented to the Court today clearly demonstrate that this is an incentive plan, not a disguised retention plan. Your Honor, the basis of the second objection that the U.S. Trustee has raised -- fair enough, Ms. Uhland reminds me that half of our incentive plan doesn’t even have a stalking horse. Thank you very much. This has to do

Turn to the second objection, Your Honor.

229 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 with the 28 Vice Presidents and Assistant Vice Presidents who will receive retention payments under the Key Employee Incentive Retention Plan. And the question is, are they

officers, and as a result, insiders, under the Bankruptcy Code? Now the U.S. Trustee says this is a no-brainer, Your Honor. Regardless of the facts and circumstances of the case or the context, if your position is listed as an officer in the bylaws, you are an officer under 10131(b)(ii). Now I’ll pause

for a moment to note that that conclusion is not in the statute and it’s not in any legislative history cited by the U.S. Trustee. The U.S. Trustee’s position is based, essentially, on

a single case, Essential Therapeutics, decided in a different context whether an employee was a disinterested person under Section 10114 for purposes of retention under Section 327(a) and on different facts. The employee was a corporate

secretary, which if you reviewed enough bylaws you know that that position, almost always, is one of the officer positions that’s expressly required because the secretary has certain duties at the corporate level. Now certainly the U.S. Trustee, Your Honor, cites no precedential Third Circuit or even District of Delaware case that instructs you that you must conclude that all positions that are listed as officers in the bylaws must be deemed officers and, therefore, insiders under the Bankruptcy Code in all circumstances for every purpose. I would respectfully

230 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 submit, Your Honor, that the U.S. Trustee’s position is that the Court should ignore the facts and circumstances of the case and just look at the bylaws. THE COURT: But I’d like --

I think their position is I should read

the Bankruptcy Code in it’s plain meaning. MR. STERN: Well the Bankruptcy Code, in its plain

meaning, just says “officers,” it doesn’t tell you who are officers for purposes of the Bankruptcy Code. It’s not in the

legislative history, it’s not expressly defined in the statute. It just says “officers.” There are analogies to be drawn, and

I’ll talk about them in a moment, to Securities Law and cases decided where officers’ fiduciary duties are at hand. And in

both of those circumstances as well, which I’ll get to in a moment, even officers -- and that position is mentioned under the Securities Laws, the Courts engage in a facts and circumstances analysis to determine what is meant by officers for application of a Securities Laws, they don’t just look at the bylaws. And we’re gonna come to that in just a minute

because I want to talk, first, about the implications of the position the U.S. Trustee is advocating if the Court were to adopt them today. If you spent any part of your legal career

in the traditional corporate practice, which frankly is where I spent the first decade of mine, Your Honor, you’d know where most bylaws come from. their computer systems. Law firms have form bylaws sitting on And when a law firm is asked to set up

231 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 a corporation, they get a call from someone saying we want to set up a corporation, the attorney involved calls up the form bylaws on the computer, inserts the company’s name, maybe makes a few other tweaks particular to that company, sends out the bylaws, and they typically get adopted. Now let’s assume that the Court were to adopt the U.S. Trustee’s argument that the employee positions identified as officers in bylaws are automatically officers and thus, insiders, under the Bankruptcy Code. Honor’s ruling today. Assume that’s Your

After the hearing is over, I’m going to

walk back to my office, if any of my partners are still there, I’m going to seek out one of my corporate partners, and I’m gonna ask to see my firms form bylaws. I’m gonna take out my

red pen and I’m gonna hack out the reference to Vice Presidents and that’s gonna be our new form bylaws. So a few years from

now, when we’re back before the Court, perhaps with some unfortunate company that we helped to set up that ultimately they went bankrupt, and that same company is filing a 503 motion and there is V.P.’s and Assistant V.P.’s of that company in a retention plan, those same folks won’t be officers under the Bankruptcy Code because I struck those positions from the bylaws. And that would be the case, under the Trustee’s

analysis, even if those Vice Presidents and Assistant Vice Presidents, in our hypothetical company three years from now, were performing the exact same functions as the Vice

232 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Presidents, sorry I’m losing my voice, and the Assistant Vice Presidents who were in the retention plans before the Court today. Now that result really doesn’t make any sense, but that

is the natural consequence of the U.S. Trustee’s position. It also illustrates why the Court needs to review the facts of the case and not just the bylaws. I’m not saying

they’re irrelevant, but they’re not dispositive, in order to determine whether these Vice Presidents and Assistant Vice Presidents are officers as that term is used, undefined, in the Bankruptcy Code and, thus, insiders for purposes of 10131 and, ultimately, 503. Now the cases cited in our motion and amended motion essentially tell us precisely this. In order to determine

whether an employee is an officer under the Bankruptcy Code, the Court needs to focus on the facts and circumstances of the case, including whether the employee exercised control or policy making functions. And the case I was eluding to just a

moment ago that dealt with Securities Laws issues and breach of fiduciary duty issues is the NMI case that is cited in our motion, and I think that’s particularly instructive. In the

NMI case, which by the way was decided by the Bankruptcy Court in the District of D.C. in 1995, the Court was evaluating insider status for purposes of Section 547. And the individual The Court The Court

Defendant who was involved was a Vice President.

said a couple of things that I believe are helpful.

233 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 said {quote} “the definition the company was using of officers may not be the same as the definition of officer under 11 U.S.C. Section 10131.” applies here. Well that same observation really

Now, of course, because the Bankruptcy Code does

not define the word officer for guidance the Court in the NMI case, looked to cases involving Federal Securities Law and Common Law Fiduciary Duties. Whereas with the Bankruptcy Code,

the law did not specifically define what an officer is, leaving it to a case by case determination and applying by analogy securities and fiduciary duty law, the Bankruptcy Court looked at whether the employee Defendant, the Vice President, was privy to confidential inside information for purposes of analyzing -- or analogizing the securities laws, or was active in setting corporate policy for the fiduciary duty claims. in that case, the answer was no. Now one other thing that the NMI Court said, and I think it’s noteworthy here and it really helps to encapsulate what the NMI Court was looking at to guide it in it’s determination. The Court said the employee’s functions and status viewed relative to the statute’s goals, in using the term officer, ought to control whether the person is an officer. talk about the goals of Section 503. Well let’s And

I wasn’t here for the Does anyone in

prior hearings, but I’ve read the transcripts.

this room really think that when Senator Kennedy proposed Section 503, he wanted to net the little fish along with the

234 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 big ones that he was perturbed about? I don’t think so and

there’s no evidence in any legislative history that he did. And frankly, I think Your Honor recognized all of this as reflected in prior transcripts, in prior hearings in this case. Your Honor evaluated the facts and circumstances that were presented to you in order to determine whether certain employees were officers and, thus, insiders. And specifically

with respect to the Vice Presidents and Assistant Vice Presidents that were presented to you in prior hearings, Your Honor concluded that they were rank and file and, accordingly, not insiders. Your Honor concluded that treating them as Frankly, I would

insiders would lead to an absurd result.

respectively submit that’s law of the case at this point. Now the 28 individuals at issue, the Vice Presidents or Assistant Vice Presidents, the testimony is they’re at the subsidiary level. The, again, un-refuted and un-rebutted

testimony establishes that these individuals don’t exercise control, they don’t participate in policy making functions. Accordingly, Your Honor, under the facts as have been presented to you today, and the case law as we’ve discussed it, these individuals are not officers under 10131(b)(ii). Accordingly,

they’re not insiders under 10131 and, thus, the Key Employee Incentive Retention Plan cannot violate 503(c)(1) because 503(c)(1) doesn’t apply. Now let’s turn to the last issue that’s the biggest

235 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 bucket, the Trustee’s position, essentially, that this case, these plans, are not justified, Your Honor, by the facts and circumstances. To the contrary, Your Honor, we believe the

evidence presented to the Court today demonstrates that the facts and circumstances compel the adoption and approval of these plans. Let’s just pause for a moment and talk about the standard under Section 503(c)(3). The U.S. Trustee asserts that Section

503(c)(3) does not expressly incorporate the business judgment standard and, therefore, the Court must evaluate the facts and circumstances. Your Honor, that’s really just semantics. It’s

clear that the business judgment standard applies under the 503(c)(3) facts and circumstances test. In fact, it’s in our

motion, it’s on page 21 of the original motion, and we cite Judge Walwrath’s ruling in Nobex on precisely this point where she says {quote} “Section (c)(3) was meant to provide a standard, albeit not as clear, for any other transfers or obligations outside the ordinary course of business. I read

(c)(3) to be the catch all and the standard under 3(c) for any transfers or obligations made outside the ordinary course of business are those that are justified by the facts and circumstances of the case. I find it, quite frankly, nothing

more than a reiteration of the standard under 363 under which courts have previously authorized transfers outside the ordinary course of business and that are based on the business

236 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 judgement of the Debtor.” So that’s what we’re talking about

with respect to facts and circumstances, have we demonstrated that they -- that the Debtor properly exercised it’s business judgment in approving these plans? We all know that the It

business judgment standard is a deferential standard.

shields the Debtors from second guessing by, among others, the United States Trustee. But the United States Trustee does,

indeed, seek to second guess the Debtor’s business judgment. And with due respect to the United States Trustee, because I know it’s just doing it’s job, the U.S. Trustee simply wants, really at the end of the day, the Court to reject the Debtor’s business judgment in favor of the U.S. Trustee’s judgment. The U.S. Trustee contends, Your Honor, that the plans are not justified by the facts and circumstances for four reasons. The first of those reasons is that, according to the U.S. Trustee, the Debtors have not explained why closing on the floor bids, to use the U.S. Trustee’s terms, constitutes an achievement which justifies payment to employees who are otherwise obligated to assist the Debtor with the sale in exchange for salary and benefits. Your Honor, her extensive

testimony today, the employees have done a lot already. There’s still a lot to do. The incentive targets are not lay

ups and without the continuing participation of the employees, and most particularly the identified plan participants, there is a real concern of, by the Debtors and their professionals,

237 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 and a real risk that these sales will not happen. That is the

un-refuted, un-rebutted testimony Your Honor heard today. Moreover, since a substantial portion of New Century employees pre-petition compensation was incentive based, and those incentives are not currently available to the employees, they’re currently working at a substantial pay cut. Now we’re

simply trying to restore some form of the incentive base compensation with an eye at the same time towards accomplishing what are, indisputably, the Debtor’s most important current business goals. The second reason why the U.S. Trustee asserts that these plans are not justified by the facts and circumstances is the U.S. Trustee contends that the Debtors are not justified in tying compensation to the sale process, especially where these sales are being conducted by an investment banker. Now with

due respect to the U.S. Trustee, that position reflects a fundamental misunderstanding of what the plan participants will be doing. We are not looking to have 100 auctioneers. Your

Honor has heard substantial testimony today, again, unrebutted, un-refuted as to what these plan participants need to do to continue to run these businesses, to take the steps that will maximize value and will help complete the sales. Those

steps, those processes, will go on long after the gavel has banged and a winning bidder has been declared. In the Debtor’s

business judgment we need participants, not investment bankers,

238 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 to do this and there is no evidence that the investment bankers could do this. Your Honor, the evidence establishes that, absent the adoption of the incentive and retention plans, it may indeed be difficult for the Debtors to complete their asset sales. And

with due respect to the U.S. Trustee, the U.S. Trustee offers no contrary evidence on that point today. Your Honor, the third point that the U.S. Trustee makes on the facts and circumstances test is the U.S. Trustee complains that the Debtors have, this is really sort of a narrow point, unfeddered discretion on the critical retention pool, that was originally $250,000, you know, when we filed last week as a -you know, even if that was a valid complaint when the U.S. Trustee filed the objection, as a result of agreements reached with the Committee, it’s no longer true. The amount has been

reduced to $175,000 and without Committee approval no individual may received more than $40,000 or 20% of his or her salary. The last point the U.S. Trustee raises, Your Honor, and it’s, on the one hand an argument in connection with the facts and circumstances test, on the other hand it’s a separate motion filed by the U.S. Trustee to continue the hearing, is the U.S. Trustee contends that these plans should be tabled, indefinitely, pending the completion of an investigation by the SEC, by the U.S. Attorney’s Office, and any trustee or examiner

239 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that the Court may or not choose to appoint a week from now. Your Honor, and, again, with due respect to the U.S. Trustee, if someone asked me to come up with a recipe for disaster for these cases, I would be hard pressed to come up with a better one that what the U.S. Trustee has proposed because let’s be clear, Your Honor, the U.S. Trustee’s proposal, in effect, means there will be no incentive or retention plans and the Debtor’s sale processes will be jeopardized. THE COURT: Well here’s a concern that I share with What

the U.S. Trustee and it’s from the Court’s standpoint. assurances does this record hold that there would be no

incentive payment, of any kind, made to an individual who might have been involved in any of the what’s been referred to, generally, as irregularities which were described in the First Day Affidavit? I mean, other than that, there’s been no

evidence in any of the series of hearings we’ve had, and I’m not suggesting there needed to have been, of who did what to whom when. What assurance can you give the Court that

incentive payments won’t be made to somebody who for those reasons, arguably, shouldn’t get anything else? MR. STERN: Your Honor. I think I would respond in two ways,

First, there’s two pieces of evidence, I think,

before Your Honor today to give Your Honor some comfort that it’s unlikely that would happen. One of the pieces of evidence

240 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 is the fact that the SEC, which as you know is conducting an investigation, has looked at this roster and said okay. They

don’t have a problem with the individuals who are included. And the second one is that the company’s own Audit Committee, which of course is conducting an investigation as well, has the right, and the ability, that if anyone happens to be in these plans who is under investigation, the Audit Committee has the right to essentially cause that payment not to be made and to be escrowed pending completion of that investigation as to whether the individual should be cleared and as a result paid, or not cleared and as a result terminated with cause, and under the plans they won’t get the payment. THE COURT: being completed? MR. STERN: By the Audit Committee? I can’t answer Well when will such an investigation

that other than to say I’m not sure that we need -- I’m not sure that that’s the ultimate determinative point since even if the Investment Committee is simply looking at someone right now, and hasn’t completed the investigation, they have the ability to escrow the payment until they’re done. THE COURT: MS. UHLAND: Well payments are to be made -Let me add one point. The initial

phase of the internal investigation has been completed and an initial report provided to the Audit Committee and the current roster reflects, actually in cases where the current roster, in

241 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 fact, rather than relying on this particular division, eliminated any individuals that would have been subject to question by the Audit Committee. So that the initial part of

the review has been already undertaken, we still have the fall back provision with respect to escrowing additional payments if there’s further individuals investigated. THE COURT: Well are further individuals being

investigated at this point? MR. UHLAND: My understand is not by the internal --

by the Audit Committee their initial phase should be done in light of our -- the fact that we’re in Chapter 11 and there’s other formal investigations being undertaken. The plan is not

to incur the additional expense of having independent legal counsel continue the investigation. THE COURT: MR. STERN: All right. Your Honor, the second point I wanted to

make and I think it’s -- I mean, we need to be candid with the Court. Can I stand here and absolutely guarantee to you that

there’s no chance that one of these hundred and some odd individuals someday will be determined to have engaged in irregularities? I mean, I can’t say that, but I can say that

steps have been put in place to make that highly unlikely, which I think is the best we can do. And in the event that it

were to turn out the unlikely event that someone received a payment who engaged in irregularity, we would have to deal with

242 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that issue at that time. But I think the important thing,

also, to remember is that not approving these plans because of the possibility that someone may someday have been determined to have engaged in an irregularity, truly, would be to throw the baby out with the bath water because we would run a serious risk, as the un-refuted testimony is today, of undermining these sales without these incentive plans. And frankly, Your Honor, the U.S. Trustee has not provided us -- I certainly understand Your Honor’s concerns, but there’s certainly no case law that we’ve seen that suggests delaying an important incentive or retention plan to complete pending investigations. The U.S. Trustee hasn’t offered any other And, you know, the sales really are, at

cases that do that.

the end of the day -- I mean we’re here for a very important reason, Your Honor saw how concerned Ms. Etlin is. These sales Your

are probably the most critical events in these cases.

Honor heard what’s happening at the company with the employees. We need these incentive and retention plans in place now. mean that’s why we’re all here at 7:00, and I apologize for that, in the evening in order to properly motivate the employees over the next few months. a pay cut. They’re already working at I

They’re already, you know, in I guess I would call

an adverse work environment in terms of just how upset people are as to what’s been going on. If these plans are delayed or

denied, Your Honor has heard testimony that many more employees

243 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 are likely to simply leave. I mean why would they stay?

I would also note, Your Honor, that it would be, ultimately, a bad idea to delay implementation of these plans pending completion of investigations, when we truly have no idea when these investigations will be completed. In the case

of any trustee or examiner that Your Honor might appoint in a week, we don’t even know when an investigation is gonna start. Every day that these plans are not approved, they lose a bit of their effectiveness, we lose some employees. It would not be

wise, I respectfully submit, Your Honor, to risk further attrition in the employee ranks. I think Your Honor will be happy to hear these words. In

conclusion, the testimony today establishes, Your Honor, that the plans are reasonable. The business goals triggering the The incentives aren’t paid if

incentives, are important ones. the goals aren’t met.

The goals, themselves, are not lay ups.

The un-rebutted and un-refuted testimony of the Debtor’s compensation expert is that the plans are reasonable, and in fact, conservative. Absent adoption of the plans now, employee

moral will be hurt and the Debtor’s business goals jeopardized. The Debtors also are obtaining something in return. heard this from Ms. Etlin. You’ve

Any participants who are going to

receive incentive or retention compensation under the plan are required to forego any other post-petition incentive or retention compensation or WARN Act claims. These plans, Your

Closing Argument - Mr. Indelicato 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Committee. MR. INDELICATO: Honor, reflect a classic exercise of the Debtor’s business

244

judgment and I would, once again, note importantly are fully supported as you’ll hear in a moment by the Committee, the folks who are writing the check. Your Honor, we need the plans, we need them now. Accordingly, we would respectfully request that Your Honor grant the motion. Thank you. Thank you. Let me hear from the

THE COURT:

Your Honor, Mark Indelicato from And I will only

Hahn & Hessen on behalf of the Committee.

repeat two or three words that were said by Debtor’s Counsel. The plans, as they exist today, are reasonable. Your Honor, we have gotten to the same point as the Debtor today in supporting the plans by two very different routes. The plan as originally filed, as has been brought to the Court’s attention, provided for $7 million in payments. At

that amount, Your Honor, we would have been standing shoulder to shoulder with the U.S. Trustee objecting to the amounts. We

worked diligently with the Debtor in attempts to get a plan in which we thought was reasonable and a plan in which we shifted from retention to incentive, the amounts that would be paid to the various employees. It was very important to the Committee,

Your Honor, that this plan did one thing and one thing only, maximize the value to the Estate from these various sales. And

245 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 we had three buckets of sales. We had the Greenwich Sale,

which is now the Ellington Sale, we have the Carrington Sale coming up and we have the sale of the other assets which has no stalking horse bidder yet. Your Honor, as we were negotiating it, events overtook us. So we were negotiating, in fact, on the night that the Greenwich sale with the sale to Ellington was concluded, or at least the bidding process was concluded. And one thing I will

say for the Debtor, Your Honor, at a time when they received an additional $11 million, they didn’t try and take another bite at the Committee and say we’ve achieved success here, we want to increase that piece. They were, at least, fair on that.

And they negotiated in good faith on the basis of the other two portions of the sale. But what we said to them is you need to

take from the minimum bid and we need to push that to, particularly with the rest of the assets, we need to push that to an incentive piece. So we reduced the amount that they

would receive, significantly, with respect as Ms. Etlin testified, 25% on the rest of the assets which have no stalking horse. You need to reduce that by 20% and we’ll work with you

to get there, based on the additional value that you receive. And, in fact, those negotiations continued through lunch today until we came to the resolution that’s before the Court. With respect to the Carrington Sale and the Greenwich Sale, there were two additional concessions that we got the

246 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Debtor to make. The Debtor, initially, wanted to pay the We said, no, there are hold

bonuses on the gross sales price. backs on that.

We need the employees to stay around to work Between the

out those hold backs, that’s very important to us.

two sales, without any modifications, that’s $14 million, three for the Greenwich and eleven for the Carrington Sale, and we want the employees motivated to get that money in. So, in

fact, we will agree to pay it, but we will agree to pay it as, and when, those retentions -- those hold backs come in. that was a significant concession made by the Debtor. Some other changes that were insisted by the Committee, Your Honor, were the releases, and the broad releases, that these employees are gonna be required to sign before they can receive any payment. It’s not gonna be a release if, and when, These are releases that they must So that So

they can get around to it.

sign before they’re entitled to any of the payments.

we know that once we make these payments for the services provided, we’re not gonna have further litigation regarding any employment related claim. the Committee insisted on. Your Honor, what the Committee was looking for in structuring this plan, is to address a lot of the concerns that the U.S. Trustee had. initial stages. plan. And we had those same concerns at the So that was another condition that

We believe that this is truly an incentive

Now is it a perfect plan, no, but it is the best we

247 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 could negotiate under the facts and circumstances of this case to maximize the incentive and the value to the Estate. I will not repeat the arguments made by Mr. Stern with respect to the officers and the directors and who they are and who the officers are, but I think to -- suffice it to say is I’ll give you how the Committee looked at it. We looked at it,

Your Honor, as this is an industry in which there’s title inflation. And that these Assistant Vice Presidents and Vice

Presidents, in reality, are no more than titles to go out to deal with the people they were dealing with in putting on the loans. So, in fact, do we look at this as giving management,

officers and directors, retention bonuses and bonuses, no we don’t. We look at this as a means of compensating the rank and

file and an incentive manner to maximize the value to the Estate. In fact, the original plan contained all eight of the We cut that down to four in

Executive Management Committee.

working with the Debtor, so we understood the concerns of the Court, we understood the concerns of the U.S. Trustee, we weren’t out to reward the very senior executives who are, in this plan, who are in charge of the company. So, Your Honor, we believe that this was an exercise of the Debtor’s business judgments. After some prodding by the

Committee, after some intense negotiation with Alex Partners, we got to a proposal in which the Committee could support and tell the Court that we believe that this was necessary to

Closing Argument - Mr. McMahon 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 achieve the maximum value for the Estate.

248

One final thing, Your Honor, because I do want to keep it short is, I know the Court had some concern with respect to the ongoing investigations regarding employees. And let me state,

categorically, that the Committee is not waiving any of its rights to the extent we’re conducting our own investigation, assuming the Court enters our 2004 order. To the extent we

determine that anybody who’s received any payments that they should not have received it because they were involved in any way, shape or form in any of the activities eluded to by the Court, the Committee fully intends to exercise all of its rights and the powers of the Bankruptcy Code to seek disgorgement of those funds to the extent appropriate. So, Your Honor, the Committee is vigilant in this case. They have worked, and worked diligently, to get this thing -this plan down to an amount which we could support. We think

we have achieved those objectives and based on the skinny down plan that’s before the Court today, we believe it’s essential to maximize the value of the Estate and we would ask the Court to approve it. THE COURT: MR. MCMAHON: Thank you. Your Honor, good evening. Prior to

the taking of testimony and the admission of exhibits, I briefly outlined our, say, six points that are of concern to our office in connection with this motion. And while I don’t

249 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 want to suggest that the Motion to Continue is of less importance than other elements, it is of significant concern. I’ll just follow along the roadmap which Debtor’s Counsel followed. THE COURT: Well let me address that now. I’m

convinced, based on this record, that the U.S. Trustee’s Motion to Continue the Hearing on this motion should be denied. will deny it. MR. MCMAHON: Okay. Your Honor, the -- there are And I

two 503(c)(1) issues that our office raised in connection with the motion. And I want to address both of them.

The first is that there was -- the incentive plan represents a disguised retention plan and, Your Honor, the primary purpose of the plan has to be retention based upon this record. Your Honor heard Ms. Etlin’s undisputed testimony

regarding the time line, which is just critical to understanding exactly what is being proposed by the Debtors. The Debtors went out to market, soliciting bids, obtained the two stalking horse bids at which the target incentive prices are being set, meaning that they are the vesting targets, the amount of those two bids. And then, after those two sale

motions or substantially contemporaneous with the filing of those two sale motions, filed a incentive and retention motion, and then disclosed to the participants that they were going to be a part of the plans that were at issue. Now that testimony

250 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 is un-controverted and it’s the Debtor’s own witness. And I

appreciate the fact that on redirect, Debtor’s Counsel got up here and said -- asked Ms. Etlin whether or not there was some generalized expectation that there was gonna be an incentive plan put in place or something, some form of bonus, given to these people for staying around. And that’s fine. Perhaps the

company made that representation, but until these bankruptcy cases were filed, until those communications occurred, by Ms. Etlin’s own testimony, they had no idea what the incentive formula was, period. End of discussion. How could they be I

incentivized to do something that they weren’t aware of? don’t understand it.

Forget Dana, forget lay ups, these people It’s beyond me

didn’t even know they were playing basketball.

that the Debtors can stand here and argue that this is not a disguised KERP. It is, it has to be based upon that testimony. I don’t know And if

They didn’t even know they were in the game.

what, you know, how you get around that essential fact.

there’s ever a plan that’s gonna be called a disguised KERP, it’s one where the employees didn’t even know what the incentives were until they had been achieved. I mean, in other It

words, until after the facts those bids had been signed on. speaks for itself.

That is, that is the elephant in the room. And you didn’t even

That is what Ms. Etlin’s testimony was.

hear Debtor’s Counsel try to even address that point because it doesn’t help their effort today, Your Honor. How could you be

251 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 incentivized to do something, under such circumstances, to up or to maximize the value of the Debtor’s assets? me, it really is. It’s beyond

And I think that, if there’s one thing that

Your Honor can rule for the U.S. Trustee on today, it’s that one point. These are retention plans, based upon the testimony

of the Debtor’s own witness. With respect to the point, Your Honor, about officers. Your Honor, we reviewed each and every case which the Debtor cited in their papers, and the Debtor’s advocacy in those papers I would describe as, as I said, not addressing the central point of the case. They’re rather aggressive And if Your Honor would take a

interpretations of the cases.

look at the relevant paragraphs from our objection, which are paragraphs 15 and 16, we go case by case through the authorities that are cited for the proposition that the Debtor’s are trying to make here today. None of them, not one,

say that when a -- conclude that when a company appoints a person, as an officer according to its bylaws, that person is not an insider based upon the degree of control that they have. In fact, each and every case as demonstrated by the parentheticals which we cite in paragraph 16, make the clear point that if these persons were, in fact, appointed officers pursuant to the bylaws, then they would be what are called statutory insiders, meaning that they would fall within the enumerated categories of Section 10131. And the Debtors really

252 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 are the parties that are seeking to go to legislative history and/or some interpretation that we have to get in to involve an analysis of control or where they fall within the organization. We don’t. We don’t have to go there. We can rest upon the

plain meaning of the statute and arrive at the conclusion that when the Debtors said individuals are officers, they’re officers, end of discussion. It’s the conclusion that It’s the conclusion

Essential Therapeutics arrives at.

supported by each and every authority, which they cite in their papers. That’s another point the Debtors don’t want to talk I think it’s critical to go -

about in their closing argument.

- to addressing the issue that’s before the Court. The only issue today, Your Honor, is if this Court is gonna look past the plain meaning of the statute. And it,

certainly, is not an observed result, notwithstanding what the Debtors say, for the people who the Debtors consider to be officers to be officers. Completely irrational conclusion.

With respect to our four points under 503(c)(3), Your Honor, with respect to the incentives being real hurdles, I think the testimony of Ms. Etlin, again, addresses that point, which is the following: How can you be working towards It’s beyond me, They

something that you don’t even know exists yet?

frankly, how this structure is designed to incentivize.

were let known about the incentives after the sale processes were well under way, or virtually done. And those standards

253 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 are not incentivizing. With respect to the point about a second class of investment bankers, Your Honor, I think what the testimony today demonstrates, it certainly supports the U.S. Trustee’s position in this regard, is that the Debtors didn’t need these people to be providing direct interfacing, or services, relating to the sales insofar as directly marketing the assets, directly communicating with the potential bidders. As Debtor’s Well

Counsel, himself, said “We don’t a hundred auctioneers.” that’s fine.

The converse of that, Your Honor, is that what

the Debtors did need these people to do is stay where they’re at and continue what it was they were doing. Completely

consistent with the U.S. Trustee’s interpretation of the record that the primary purpose of this plan is to keep them right where they are. Again, when you -- I mean, you might as well

just, you know, create another metric that is completely unrelated to what they’re doing for the company. These people

have no control or ability to drive the sale price upward directly. What is essential to the company, and what you have

heard from the testimony, is that it is essential to keep them there to support that sale effort. And I just noted, as

perhaps a slip, I think before the break Mr. Indelicato got up to the podium, after the break I think Ms. Uhland and or other counsel got up to the podium, and what did they say, “We need to retain these people. That’s the reason why you have to

254 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 approve this today.” It’s retain them, it has nothing to do Because it’s not a

with driving the sale price north.

reasonable expectation, Your Honor, that no matter how well these people perform their specific functions, that there’s no testimony in record, there’s no person with investment banking experience to explain how the employees could actually effect, or drive, a sale price north by providing such support services. Third, Your Honor, with respect to the slush fund, or called the bonus pool that’s undefined in terms of who participates in it right now, we would suggest that it suffers, essentially, from the same problems that the sale performance metrics do, which is that people don’t know whether or not to participate or getting it. Again, the issue is what’s it’s

purpose, what’s it doing for the company? And finally, Your Honor, I will address the -- our Motion to Continue -- strike that, Your Honor. We do note and share

the -- excuse me, Your Honor, I forgot about the prior ruling on that point, but I do want to note that we do share the Court’s concern about the progress of the U.S. Attorney’s investigation and making sure that these plans do justice to the situation, rather than worsen it. So, when we come back to the critical point that I want to make here, Your Honor, it’s the following. That these plans

were not designed to incentivize based upon the testimony of

Rebuttal Argument - Mr. Stern 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the Debtor’s own witness.

255

And if this plan is not a disguised

retention plan, I don’t know what is. THE COURT: MR. MCMAHON: THE COURT: MR. STERN: Thank you. Thank you, Your Honor. Briefly. I’ll do my best, Your Honor. I don’t

have much of a voice left anyway, so there’s not much to worry about. Honor. My friend ably argued several points, first addressing the 503(c)(1) issues. It seems that the Trustee’s main point in I just want to make a couple of points, I think, Your

this whole proceeding is that the incentive plans are disguised retention plans. stay. It focuses on the fact that we want people to To me

In fact, he calls that the elephant in the room.

it’s a unicorn, it doesn’t exist, but we can call it whatever animal we want. At the end of the day, it is always the case

that -- I mean, there’s two things that are, I guess, indisputable here. get paid. If the goals aren’t met, the people don’t

You can stay as long as you want, this is with

respect to the incentive plan, stay as long as you want, but if the goals don’t get met and there’s no assurance they will get met as we’ve heard the un-refuted testimony today, you can’t get paid. That’s an incentive plan. Every good incentive plan

has, and Your Honor has recognized this, I know it because I read it in one of the transcripts of the hearings I didn’t

256 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 attend, that every good incentive plan has a retention component. You can’t get the incentive if you don’t stay. The

question is what is the primary purpose?

The primary purpose

here, clearly, is to incentivize these folks (a) to complete the sales and (b) to get the best sales price. Now there was some questions, or some statements, made about this is clearly a retention plan because how could the employees be acting on an incentive where a plan, essentially, had not yet been filed. There’s really two responses to that.

Number one, and again this is the un-refuted testimony to the employees, even though there was not a specific plan out there because there couldn’t be at that time, had a general expectation that they would continue to receive some form of incentive pay, as they had in the past. But let’s just ignore

that for a moment, let’s even forget about everything that’s happened in the past. My friend simply ignores, and never

addresses, all the things that the folks that we’re trying to incentivize still need to do. close. None of these deals can just

The un-refuted testimony was that there is still a And let’s talk about the

tremendous amount of work to do.

other assets for a second, there’s not even a stalking horse. Folks just have to take, rather, really for assets that they’ve had difficulty with so far, these are gonna be difficult sales. I think Ms. Etlin testified they were -- this is the most speculative. They’re really gonna have to work hard if they

257 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 want to make some money on these sales. And as far as, I think there was a related point made, and I just want to make sure I hit it. You know, if I can’t

remember it, it can’t be important enough to hit it at 7:30 in the evening, Your Honor. It’s just the fact that these

employees still have a lot to do in order to get the sales accomplished. As far as the officers go, I mean, look 503(c) is a pretty new statute. and don’t say. I mean we can all talk about what the cases do The U.S. Trustee doesn’t cite any case that

says under 503(c) if you’re in the bylaws as an officer, you’re an officer. So we’re all just dealing with the case law as it

currently exists, really pre-503(c) and we’re trying to figure out what did Congress mean when it adopted 503(c). And we

believe the better case law, which we’ve cited and which I’ve discussed in detail today, says you have to look at the purposes of the statute and make your own determination, Your Honor, and at some point I suspect there will precedent to guide us. Right now, there’s not a whole not. There is some

precedent in this case, which I respectfully submit law of the case, where Your Honor said Assistant V.P.’s and V.P.’s are not officers for purposes of Section 503. The last thing I think I would say, Your Honor, is that the facts that have been submitted to the record today, our expert has said this is a reasonable plan and it is an

The Court - Finding 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 incentive plan. There’s no contrary expert testimony.

258 All the

testimony that you’ve heard today talks about just how critical these plans are and how we need them. And I guess maybe I’ll try to finish with a little flare. I remember a sort of a phrase I read in the newspaper a couple of weeks ago, Your Honor. I don’t remember the context, I

don’t remember who said it, but the statement was “the greatest enemy of a good plan is the dream of a perfect plan.” know that this is a perfect plan. and prod at it? it? I don’t

You know, can people poke

Can the U.S. Trustee complain about pieces of

I’m sure that’s true, but it is a good plan and that’s all Thank you, Your Honor. Okay. Let me start by determining the

that the law requires. THE COURT:

standard that I’m applying in deciding whether to grant the relief that’s been requested. First, I don’t think this is a -

- this relief is properly requested under Section 105 or under 363. I will apply a 503(c)(3) standard because, consistent

with my prior ruling with respect to those individuals holding the office of Vice President and Assistant Vice President, they are not, under these circumstances, to be considered officers for purposes of 503. It may be, at some point, there will be a

larger body of case law, to which perhaps I’ll contribute, which addresses the issue in a more detailed manner. Frankly,

I’d probably prefer that opportunity, but the circumstances here don’t permit that.

259 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 There are a number of issues I’d like to address in terms of how I view this record and, unfortunately, they may come out in no particular order, but I’ll begin. First, by addressing an overall concern. The Trustee

complains that the Debtor, after having been rebuffed in early request for relief, has come back and repackaged, in substance, the same request, but in a different form. Frankly, given a

couple of things, one the newness of 503(c) and some black letter rules about how plans should be designed, there have been a number of different plans proposed in this Court, and other courts, that really go a lot of different ways and take a lot of different forms. Secondly, I think it’s a good thing that the Debtor went away, tried to rethink and restructure it’s plans, consulted and negotiated with the Committee, heard the U.S. Trustee’s objections and came up with a revised plan. And I, frankly,

think the Debtor ought to be -- well let’s put it this way, I think have might have been necessary for the Debtor to do that, under these circumstances, rather than simply to say there’s no way we can package an incentive plan in an acceptable form. The Debtor argues, persuasively, and Ms. Etlin’s testimony, I think, was very strong on these points, some of the services yet to be performed are sale related from due diligence to transition and other sale related services, to the requirement of at least one buyer that a certain number of

260 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 employees be available to continue in the business, other downsizing functions that have to be performed, including the extensive human relations and benefits issues that have to be worked through with respect to the thousands of employees who’ve been laid off, responding to the SEC investigation, other regulatory interface, later on down the line claim support, lease review. Right now, with respect to the sales

particularly, they are the most important activity of the company at the moment. The activity, most likely, to produce And to incentivize employees to

the most value for the Estate.

achieve those goals and perform those activities, which would not otherwise be within their normal job descriptions, I think is necessary under these circumstances. These employees,

according to Ms. Etlin’s testimony, have specific technical or other knowledge about the business or the industry, which is necessary for the conduct of the Debtor’s business and for achieving and taking sales to their conclusion. With respect to the criteria that the Debtor has chosen, in a non-liquidating plan you could argue there are lots of other metrics that could be used, like EBIDTA just to name one, increasing cash flows. Those things can’t be used It makes no sense and the

appropriately in this type of case.

U.S. Trustee has suggested that there’s no viable alternative for the use of criteria. I also note that these employees, as the Debtor has

261 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 alleged from the beginning even in its earlier iteration of incentive, proposed incentive plans, that the employees compensation, historically, has been based on things other than, in addition to, base salary. So it’s entirely credible

for the Debtor to take the position that there is an expectation by these employees that there’s -- there would some incentive compensation as a component of their overall compensation, and the fact of the timing of the request for approval and the development of the sales asserted by the Trustee is being a reason alone to deny the relief, I think, is wrong. I think it’s off the mark. And I think it ignores the

situation that these Debtors are facing. There’s another element that strikes me, and I mean and it strikes me as an important element, and although it’s been mentioned, it hasn’t been mentioned in quite the way I look at it, and that is the total amount to be paid is about 3.3 million or so, which has already been reduced by over half as a result of negotiations with the Committee. But this amount is

a fraction of the total value to be achieved and preserved by this Estate, and it’s a small fraction. So it seems to me that

in the Debtor’s business judgment, if it spends this amount of money, it can preserve literally tens of millions of dollars, or potentially more, worth the value for the Estate, it seems to me to be a very small amount of money well spent. So I conclude that these payments are justified under the

262 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 facts and circumstances of this case and I’m prepared to sign an order awarding the relief that the Debtor has requested. Oh, I also wanted to mention the discretionary fund. understand the U.S. Trustee’s concern that it could be a {quote} “slush fund,” but it seems to me, again, given the very limited amount that’s been placed into the fund and with the Committee oversight, that there’s very little likelihood, if any, that award of funds from the discretionary fund would be, in any way, abusive or unwarranted. MS. UHLAND: Thank you very much, Your Honor. The I

plans themselves are exhibits to the proposed order that we would like to submit and there is some final language changes we are incorporating in them to reflect the agreements that we’ve reached with the Committee. What we would propose to do,

Your Honor, is to prepare the revised order with the complete plans and submit it with the Court tomorrow. THE COURT: All right, and please recite that the

relief is being granted for the reasons I’ve stated on the record today and please also include a denial of the U.S. Trustee’s Motion to Continue this hearing based upon my earlier ruling. Yes, Mr. McMahon? MR. MCMAHON: Just one question, Your Honor, there

is a finding, Letter E, specifically indicating that the Debtor’s have demonstrated a compelling and sound business justification for authorizing the restructured plans and I’m

263 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 wondering whether, in light of Your Court’s ruling, would be better to change that to -- that the Court has found that the Debtors have justified plans under the facts and circumstances of the case. THE COURT: statutory language. MS. UHLAND: THE COURT: MS. UHLAND: THE COURT: MR. MCMAHON: Yes, Your Honor, we’ll revise that -All right. -- paragraph. Any other questions about the order? Not this one, Your Honor. I believe It would be consistent with the

there’s the open matter of the Motion to Seal. THE COURT: MR. MCMAHON: Is there any objection? Your Honor, based upon the record that

was put before the Court and the Debtor’s agreement to leave these, you know, six participants, the six top participants under the plans unsealed. Their information will be of public

record, but we are not taking the position based upon Ms. Etlin’s testimony. THE COURT: Anyone else care to be heard with I’ll grant it. This is normally

respect to the oral motion?

the type of information that is, indeed, kept confidential and I do conclude, based on this record, that revealing such information would put the Debtor at a competitive disadvantage at a very critical time. I guess in it’s soon to be over

264 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 CERTIFICATION I certify that the foregoing is a correct transcript from the electronic sound recording of the proceedings in the aboveentitled matter. adjourned. (Court adjourned) history. well. And you should prepare an order to that effect as

You can include it in the one order if you like. MS. UHLAND: Okay, Your Honor, and then we’ll be

filing that under -- taking appropriate precautions to file the redacted version under seal shortly. THE COURT: MS. UHLAND: All right. Any other questions?

No, Your Honor, I just thank you for

the Court’s and the Court’s staff’s indulgence to stay this late. THE COURT: MS. UHLAND: THE COURT: Your welcome. All right. Thank you very much. Court is

That concludes this hearing.

Lewis Parham
___________________________ Signature of Transcriber

5/18/07 __________ Date

UNITED STATES BANKRUPTCY COURT DISTRICT OF DELAWARE

IN RE:

) ) NEW CENTURY TRS HOLDINGS INC.,) ) ) Debtor. ) ) ) )

Case No. 07-10416-KJC Chapter 11 Courtroom No. 5 824 Market Street Wilmington, Delaware 19801 June 15, 2007 10:04 A.M.

TRANSCRIPT OF OMNIBUS HEARING BEFORE HONORABLE KEVIN J. CAREY UNITED STATES BANKRUPTCY JUDGE APPEARANCES: For the Debtors: Richards Layton & Finger, PA By: MICHAEL MERCHANT, ESQ. RUSS SILBERGLIED, ESQ. One Rodney Square, P.O. Box 551 Wilmington, Delaware 19899 O'Melveny & Myers LLP By: SUZZANNE UHLAND, ESQ. 400 South Hope Street Los Angeles, California 90071 For the U.S. Trustee: Office of the U.S. Trustee By: JOSEPH J. McMAHON, JR., ESQ. 844 King Street Wilmington, Delaware 19899 Jason Smith

ECRO:

Proceedings recorded by electronic sound recording, transcript produced by transcription service. ______________________________________________________________ 435 Riverview Circle, New Hope, Pennsylvania 18938
e-mail CourtTranscripts@aol.com

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215-862-1115 (FAX) 215-862-6639

2 Appearances: (Continued) For Bank of America: Potter Anderson & Corroon, LLP By: GABRIEL MACDONAILL, ESQ. Hercules Plaza, P.O. Box 951 1313 N. Market Street Wilmington, Delaware 19899-0951 Kaye Scholer By: MARGO SCHONHOLTZ, ESQ. NICHOLAS CREMONA, ESQ. 425 Park Avenue New York, New York 10022-3598 For Deutsche Bank Structured Products: Bingham McCutchen LLP By: ANDREW GALLO, ESQ. One State Street Hartford, Connecticut 06103-3178 Saul Ewing, LLP By: MARK MINUTI, ESQ. 222 Delaware Avenue, Suite 1200 P.O. Box 1266 Wilmington, Delaware 19899 Kirkpatrick & Lockhart Preston Gates Ellis LLP By: MICHAEL MISSAL, ESQ. EDWARD FOX, ESQ. REBECCA KLINE DUBHILL, ESQ. 1601 K Street, NW Washington, DC, 20006-1600 For N.Y.S. Teachers Retirement System: Lowenstein Sandler PC By: MICHAEL ETKIN, ESQ. 65 Livingston Avenue Roseland, New Jersey 07068 Baker & Hostetler LLP By: JACK FITZGERALD, ESQ. 45 Rockefeller Plaza New York, New York 10111

For Examiner:

For Fidelity National Information Services et al.:

3 Appearances: (Continued)

For Greenwich Capital Financial:

Pachulski Stang Ziehl Young Jones & Weintraub By: TIM CAIRNS, ESQ. 919 North Market Street, 16th Fl. Post Office Box 8705 Wilmington, Delaware 19899-8705 Kirkland & Ellis By: SHIRLEY CHO, ESQ. BENNETT SPIEGEL, ESQ. 200 East Randolph Drive Chicago, Illinois 60601

For Daniel Rubio, et al: Connolly Bove Lodge & Hutz, LLP By: KAREN BIFFERATO, ESQ. The Nemours Building 1007 North Orange Street P.O. Box 2207 Wilmington, Delaware 19899 Trush Law Firm By: JIM TRUSH, ESQ. Suite 300, 2424 S.E. Bristol Street Newport Beach, California 92660 For the Committee: Blank Rome, LLP By: JASON STAIB, ESQ. Chase Manhattan Centre 1201 Market Street, Suite 800 Wilmington, Delaware 19801 Hahn & Hessen LLP By: MARK POWER, ESQ. MARK INDELICATO, ESQ. 488 Madison Avenue 14th and 15th Floors New York, New York 10022

4

Appearances: (Continued) Appearing: Rosenthal, Monhait & Goddess, P.A., By: EDWARD ROSENTHAL, ESQ. 919 Market Street, Suite 1401 P.O. Box 1070 Wilmington, Delaware 19899-1070 Murray Capital Management, Inc. By: MARTI MURRAY David J. Stern, P.A. By: FREDERIC J. DISPIGNA, ESQ. Suite 500, 801 South University Drive Plantation, Florida 33324-3314 Paul Hastings Janofsky & Walker By: KIMBERLY NEWMARCH, ESQ. 191 N. Wacker Drive 30th Floor Chicago, Illinois Manatt Phelps & Phillips By: IVAN L. KALLICK, ESQ. ELLEN MARSHALL, ESQ. Chadbourne & Park, LLP By: DOUGLAS E. DEUTSCHE, ESQ. 30 Rockefeller Plaza New York, New York 10112 Mayer, Brown, Rowe & Maw LLP by: THOMAS KIRIAKOS, ESQ. SEAN SCOTT, ESQ. 71 S. Wacker Chicago, Illinois 60606-4637 ICP Consulting, LLC By: MIKE FLYNN

For Murray Capital Management, Inc.: For David J. Stern:

For UBS Real Estate Securities, Inc.:

For Manatt Phelps & Phillips: For Credit Suisse First Boston, et al:

For Carrington Capital Management, LLC:

For ICP Consulting, LLC:

5 Appearances: (Continued) For TRS Holdings, Inc.: Irell & Manella LLP By: JEFF REISNER, ESQ. Suite 900, 1800 Avenue of the Stars Los Angeles, California 90067-4276 Jeffer, Mangels, Butler & Marmaro LLP By: BARRY FREEMAN, ESQ. 1900 Avenue of the Stars Seventh Floor Los Angeles, California 90067 Skadden Arps Slate Meagher & Flom By: ERIC DAVIS, ESQ. One Rodney Square, P.O. Box 636 Wilmington, Delaware 19899-0636

For Union Bank of California:

For Skadden, et al:

6 1 2 3 THE COURT: Good morning, all. Good morning, Your Honor. Mike

UNIDENTIFIED ATTORNEY: MR. MERCHANT:

Good morning, Your Honor.

4 Merchant from Richards Layton and Finger on behalf of the 5 debtors. 6 Your Honor, I think we’d like to take the last matter

7 on the agenda first, which is the status report regarding the 8 first meeting with the examiner. 9 10 THE COURT: MS. UHLAND: Very well. Good morning, Your Honor. Suzzanne

11 Uhland of O'Melveny and Myers for the debtors. 12 you -13 14 MR. MISSAL: MR. FOX:

And why don’t

Good morning, Your Honor.

Mike Missal.

Good morning, Your Honor.

Edward Fox from

15 Kirkpatrick and Lockhart Preston Gates Ellis as proposed 16 counsel for the examiner. 17 18 19 THE COURT: MR. FOX: Good morning and welcome.

Thank you, sir. Your Honor, we met yesterday. The

MS. UHLAND:

20 counsel for the debtors, the counsel for the Creditors’ 21 Committee and the examiner, his counsel, and members of the 22 Office of the United States Trustee. We had an initial meeting

23 yesterday to discuss things as sort of some of the mechanics on 24 privilege issues and confidentiality, as well as to provide the 25 examiner an overview of the issues so that they could start

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7 1 thinking about different discovery or, you know, pacing 2 (sic/phonetic) items. 3 We had a very productive meeting. One benefit as a

4 result of the prior investigation, New Century has already been 5 developing a document database that’s coded by issues, and 6 we’re working to get the examiner and his counsel access today 7 so they can start having the same access to the document 8 information that we have on file. 9 We’re also working to coordinate with the companies

10 counsel to the independent counsel that conducted the company’s 11 investigation to provide that work product to the examiner, 12 both to accelerate the process and to hopefully reduce expense 13 to the estates as part of that investigation. 14 On a -- on a mechanic, taking actually from other

15 cases where there’s been an examiner order, and I think the 16 parties have a chance to sit down and talk and reflect on some 17 -- what some of the issues might be, the parties will be 18 working together with the Trustee’s Office, the Committee and 19 Examiner to have a sort of modest request to the have the Court 20 a further stipulation or a further order really to address 21 three issues: 22 First, the mechanics of how we’ll be filing our What

23 proposal and -- on -- how we’ll file the Court’s order.

24 we intend to do is have it filed -- have the examiner file it 25 under seal with a motion to unseal whatever -- all or whatever

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8 1 portions the examiner believes should be unsealed. That was a

2 process that I believe the Trustee’s Office worked through in 3 the -- was it the Revco (phonetic) case, Joe? I think it was -

4 - one of the cases that -- that represented to the Trustee’s 5 Office I had previous had experience in. 6 MR. McMAHON: Your Honor, good morning. Joseph

7 McMahon for the United States Trustee. 8 We did discuss this idea in concept yesterday where

9 the Examiner’s report would be filed under seal, but the -10 with a motion to unseal filed by either our Office or the 11 Examiner, we’ll work out the logistics. 12 But the -- the burden to -- with respect to 107 would In other words, it would just

13 remain on the objecting parties.

14 be like a reverse mechanic designed to ensure that the report 15 is filed with the Court actually before parties in interest get 16 to see the final work product. 17 And with respect to the issues that debtors’ counsel

18 is discussing, we had a discussion about concepts yesterday, 19 Your Honor. My understanding is that the debtors’ counsel has

20 taken the laboring oar insofar as drafting up the order as to 21 the specific issues that Ms. Uhland is outlining. 22 We would obviously like to take a look at the order

23 and reserve the right to be heard on that at the appropriate 24 time. 25 MS. UHLAND: Yes, Your Honor. I envision that we’ll

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9 1 have a -- a certificate of counsel that -- or a certification 2 of counsel that it’s completely consensual, or we obviously 3 will come back. 4 5 But that’s the plan.

The other two issues, I think, were simpler: One, we wanted to make sure that the work product of

6 the Examiner was maintained as confidential, sort of post 7 filing the report within issues -- uh -- in other cases where 8 civil litigants have sought to get the examiner’s work papers. 9 And then we would like to have some -- I think we’ve

10 been sort of sorting the privilege issues, just a more -- a 11 refined language to ensure that the privilege is protected and 12 the debtors and the Committee, to the extent they share 13 privileged information, the Examiner can be assured of their 14 protection. 15 Like I said, I envision this to be a rather short

16 order and we’ll be circulating drafts of that to the parties 17 early next week. 18 19 meeting. And I think that’s all I had to report on from the I don’t know whether Examiner’s counsel had any

20 further reports. 21 MR. MISSAL: Yes, Your Honor. I’d just like to I found it very

22 underscore what was said about the meeting. 23 productive and helpful. 24 this point. 25

Everybody is cooperating very well at

We also met separately with counsel for the

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10 1 Creditors’ Committee to discuss their specific concerns, as 2 well. I think we had a good dialogue and I believe we’re off

3 to a good start. 4 5 6 7 MR. MERCHANT: THE COURT: MS. UHLAND: Very well. Thank you.

Thank you, Your Honor. (Pause) Your Honor, Mike Merchant again, for

8 the record. 9 10 items: 11 12 Agenda Items 1 through 6 have been continued. And on Agenda Items 7 through 12, CNOs were filed and If we could walk through the agenda on the other

13 I believe Your Honor has entered orders on all of those. 14 15 THE COURT: I have. Agenda Item Number 16 is the motion to This was before

MR. MERCHANT:

16 retain A.P. Services, LLC as crisis managers.

17 Your Honor at the last hearing at which we told you that we 18 were working on a consensual form of order. 19 get there, but we’ve gotten there. 20 We have an agreed form of order with the Office of And It took a while to

21 the United States Trustee that resolves their concerns.

22 perhaps the best thing for me to do would -- would hand up a 23 clean copy and a black line of the order and walk Your Honor 24 through the changes. 25 THE COURT: Very well.

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11 1 2 3 4 5 6 7 MR. MERCHANT: MR. MERCHANT: THE COURT: MR. MERCHANT: (Pause) Your Honor, there have been -(Pause) If I may have one moment, Your Honor.

All right. (Pause) Your Honor, there have been two The first amendment was

8 amendments to the engagement letter.

9 filed prior to the last hearing, and I think is included in the 10 hearing binder. 11 The second amendment to the engagement letter was It was just entered into this week, and I have a copy of it

12 just filed yesterday.

13 I don’t know whether Your Honor’s seen it. 14 with me, if I may approach. 15 16 17 18 THE COURT:

Notice of second amendment? Yes.

MR. MERCHANT:

THE COURT: I have that. MR. MERCHANT: Okay. I don’t know if Your Honor’s But sort of the concept set

19 had an opportunity to review it.

20 forth in that second amendment are incorporated into the form 21 of order, and the United States Trustee wanted me to just point 22 that out to Your Honor. 23 THE COURT: All right. Why don’t you -- before we go

24 through the order, why don’t you give me a current report on 25 the status of debtors’ management?

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12 1 2 3 MR. MERCHANT: THE COURT: MS. UHLAND: Ms. Uhland can provide it.

Thank you. Thank you, Your Honor. The debtors are,

4 prior to these turnover -- the current turnover, was managed 5 largely by their CEO, Brad Morrice, as well as their CFO, Taj 6 Bindra. 7 And then in addition there’s what they call an

8 Executive Management Committee, which includes the general 9 counsel, Joseph Eckroth, the Chief Operating Officer, and those 10 that I would say would be the four primary officers on the EMC, 11 which also included the -- the head of Human Resources, Robert 12 Lambert and the head of Loan Production, Anthony Meola, who 13 this Court has -- has seen in court, as well as the head of 14 Capital Markets, Kevin Cloyd. As head of Capital Markets, that

15 really his role also included head of Servicing -- or does 16 include head of Servicing. 17 So, what has happened is the CFO, Mr. Bindra, who’s a His services have been replaced

18 public company CFO, resigned.

19 by Michael Tinsley of AlixPartners, given that the role of CFO 20 is largely a bankruptcy reporting function at this point. 21 company felt that it was more appropriate to bring in a 22 restructuring person simply and -- and since Michael Tinsley 23 had been the controller. 24 The head of Loan Production, Mr. Meola, really once The

25 the -- the platform sale did not go forward, his usefulness to

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13 1 the company and the efforts, it was not longer apparent, and 2 didn’t really have much function at the company. So, we’ve

3 been trying to, as the company has been shrinking, trying to 4 identify the more expensive officers and relieving them of 5 their duties. 6 So, Mr. Meola and Mr. Morrice, who’s the CEO, were

7 both terminated on last Friday. 8 Holly Etlin, who had been appointed recently as CRO

9 was also appointed CEO. 10 What we expect going forward is that the core

11 leadership will be Holly running as the CEO, serving really as 12 a CRO to finish the asset sales and take the company through 13 the Chapter 11, supported by Michael Tinsley as her CFO. 14 The core -- I’ll call core business competencies that

15 are remaining are the former general -- the current general 16 counsel, Terry Theologides is still with the company, and still 17 in management. We expect him to be sort of -- through our next

18 phase of getting through this transition, he’s going to be 19 taking on a leadership role with that. 20 And Kevin Cloyd, who’s the head of Capital Markets,

21 who’s been helpful in the servicing sale and the person who is 22 sort of leading the sales of the LNF -- the LNFA sales and 23 these remaining asset sales is also sort of the industry expert 24 who is sort of staying on in senior management to guide us 25 through this next phase.

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14 1 And then our head of H.R. -- and our H.R. Department

2 is still pretty complete because of the continuing employee 3 issues that we’re seeing there. 4 And, as well, our COO is remaining, certainly through But, again, as a large

5 the sale of some of this technology.

6 high level CF -- COO, you know, it’s -- I expect at some point 7 this summer, he’ll also be transitioning. And we’ll be really

8 staying with, like I said, these -- the two -- the general 9 counsel and head of Capital Markets as our core industry 10 specialists. 11 12 THE COURT: Thank you. With that, Your Honor, I can walk Your

MR. MERCHANT:

13 Honor through the changes in the form of order, the material 14 changes. 15 16 THE COURT: All right. If Your Honor will look to the recital

MR. MERCHANT:

17 paragraph, there is references to the two amendments to the 18 engagement letter. 19 the Court. 20 Paragraph 3 makes clear that the success fee is not That’s being put off for a later Like I said, both of them were filed with

21 being approved by this order.

22 day and all rights of the Committee and the U.S. Trustee to 23 object to the nature and amount of any success fee are fully 24 reserved. 25 In Paragraph 4, APS has agreed to waive the break

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15 1 fee, which is contemplated under Paragraph 4 of Schedule 1 to 2 their engagement letter. 3 Paragraph 5 relates to the indemnification of APS That makes clear that they

4 employees serving in officer roles.

5 shall not provide -- the debtor shall not provide 6 indemnification to employees not serving in officer roles. 7 And Paragraph 7 makes clear that the retainer It will be

8 provided to APS is not a replenishing retainer. 9 drawn down as the case moves on. 10

Paragraph 8 makes clear that personnel serving in

11 officer capacity are subject to the same fiduciary duties and 12 obligations as are applicable to other persons serving in such 13 capacity as corporate officers under applicable law. 14 And Paragraph 9 contain a number of other provisions

15 that were lifted directly from the JayAlix protocol. 16 I think that summarizes all the changes to your -- to The U.S. Trustee is standing, he may

17 the order, Your Honor. 18 have further comment. 19 20 THE COURT:

Mr. McMahon? Your Honor, good morning. We’re

MR. McMAHON:

21 satisfied with the form of order.

And just to underscore one

22 point in that last section regarding the JayAlix protocol. 23 Consistent with the protocol, neither Ms. Etlin nor any other 24 A.P. Services personnel will be assuming a position on the 25 debtors’ Board of Directors. That’s to maintain a clear

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16 1 division between the people who would serve as the function and 2 the officers who are operating the company. 3 THE COURT: Very well. Thank you. Does anyone else

4 care to be heard in connection with this motion or the proposed 5 form of order as it’s been modified? 6 7 8 9 10 THE COURT: (No audible response heard) THE COURT: I hear no response. (Pause) The order’s been signed. Thank you, Your Honor. Your Honor,

MR. MERCHANT:

11 Agenda Item 17 is the application to retain Sheppard Mullin 12 Richter and Hampton, LLP. 13 There were concerns raised to that application by the We’ve been able to resolve

14 U.S. Trustee and the Committee.

15 those concerns through a consensual form of order. 16 Sheppard Mullin will serve as special counsel and

17 litigation counsel to the debtors, which will include defense 18 in the Rubio litigation, which Your Honor will hear a little 19 bit more about today; counsel with respect to the sale of non20 debtor New Century Warehouse’s assets, which Your Honor has 21 already previously approved. And they’ll also provide limited

22 services incident to corporate matters on which they were 23 working on prior to the petition date. 24 25 order. Like I said, Your Honor, there is a revised form of If I may approach, I can walk Your Honor through the

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17 1 changes. 2 THE COURT: I’ll tell you what. Before you do that,

3 I’d rather address this in the big picture. 4 5 6 7 MR. MERCHANT: THE COURT: Sure.

The Committee filed an omnibus objection. Yes.

MR. MERCHANT: THE COURT:

Obviously in a concern which is shared by

8 the Court, that the case not be suffocated by the weight of its 9 professional. And that is not a criticism of any professional,

10 and I’m aware of the -- you know, the breadth of the company’s 11 operations and the need for certain specialized assistance. 12 But give me the big picture on how this was resolved

13 with the various -14 15 MR. MERCHANT: THE COURT: Sure. And then -And if

-- proposed professionals.

16 and then we can deal with them on an individual basis.

17 the Committee also wants to respond to that, I would appreciate 18 it. 19 MR. MERCHANT: Sure. Your Honor, we heard the And I think

20 Committee’s concerns, and it’s a valid concern. 21 we’ve -- we’ve addressed that in two ways: 22

We’ve worked with the Office of the United States

23 Trustee and we’ve worked with the Committee to be very specific 24 in these orders as to the discreet matters that these 25 professionals will be working on.

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18 1 In addition to that, we had a number of calls with And as a result of those calls, in-house

2 the Committee.

3 counsel to New Century prepared a description of what each 4 professional is working on and a range of their anticipated 5 fees and costs with respect to the work that they will be 6 doing. 7 Based on that sort of fee forecast that we provided

8 to the Committee, they came back to us with proposed caps, 9 either monthly or case caps, or going forward caps with respect 10 to the work that those professionals will be working on based 11 on where the Committee views things as going. We took those

12 caps to the professionals, and I think most of the orders that 13 you’re going to see have caps. 14 So, now the Committee, you know, can rest assured

15 that absent us coming back to the Court, you know, the fees or 16 expenses for a certain professional will not exceed the capped 17 amount on a monthly or a case basis. 18 resolved most of the concerns. 19 20 heard? 21 MR. INDELICATO: Good morning, Your Honor. Mark THE COURT: All right. Does the Committee wish to be And that’s how we’ve

22 Indelicato from Hahn and Hessen on behalf of the Committee. 23 Your Honor, let -- let me just take you back a step The

24 and so you’ll understand where the Committee came from.

25 Court asked before for an update on the management of the

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19 1 debtor, and Ms. Uhland gave you a synopsis of where we are 2 today. 3 But what we didn’t go through was the role that the The Committee is very concerned,

4 Committee has been playing.

5 and you’re going to hear that deemed throughout, with the costs 6 in the case and the costs associated with the professionals and 7 with the operations and with the debtors’ management. And so

8 we’ve been working with the debtor and Ms. Uhland and Ms. Etlin 9 to work down a wind down scenario and budget and procedure so 10 that we can control the cost. 11 When we -- when we looked at all of the

12 professionals that were being retained, the Committee had a 13 number of issues: 14 One is we have very reputable firms in -- in -- in

15 Ms. Uhland’s and in RLF, why can’t they do a lot of these 16 things? And in that regard, we asked the debtors’ in-house

17 counsel to provide us an analysis of what was being done, why 18 it needed to be done by this particular firm, and what the 19 costs would be. 20 And to the extent there was a firm that was doing --

21 winding down its operations, limiting its fees going forward, 22 or was related to an asset that was going to be recovered, the 23 Committee focused on that. 24 You -- there’s going to be two items, Irell and

25 Manella and ICP, which the Committee hasn’t yet really gotten

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20 1 their hands around and become comfortable with the fees being 2 charged. 3 So, we’re going to adjourn those and we’ll get to

4 that and sort of maybe take those in steps and pieces and see 5 if we can resolve the Committee’s concerns. 6 be back to the Court. 7 So, what we did is to the extent there was a finite And if not, we’ll

8 function, that they were providing either for the servicing of 9 the servicing platform or the sale of the assets, we defined 10 those -- the parameters, we asked them what they were going to 11 be going forward, and we put a monthly cap and an overall cap 12 on the fees. So, that to the extent you’re going to see -- and

13 there are a lot of firms being retained, but we felt with the 14 institutional knowledge that they had, and the caps that we put 15 in place, at least we felt, although we weren’t thrilled with 16 the number of firms and the potential for the duplication of 17 efforts, we felt that we would put a harness around that with 18 the fee caps on a monthly basis and an overall cap. 19 So, that was the Committee’s way of saying, okay, we

20 hear what the debtor is saying, we understand these -- these 21 firms have institutional knowledge, but we’re just not going to 22 open the checkbook and let it, you know, every firm that wants 23 to get retained in this case be retained without some collars. 24 So, -- and we’ll go through them more specifically as we go 25 through the individuals, but that was the parameters under

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21 1 which the Committee’s approached its objection and approached 2 the resolution. 3 4 5 THE COURT: Thank you. You’re welcome.

MR. INDELICATO: THE COURT:

Anyone else care to be heard

6 preliminarily? 7 8 9 (No audible response heard) THE COURT: All right. Let’s proceed.

MR. MERCHANT:

And Mr. Indelicato is correct, we --

10 you know, we’re only going forward today with respect to the 11 professionals where we were able to get them comfortable, and 12 we have an agreed form of order. Wherever there’s an

13 outstanding issue, we’re going to continue that to a later 14 hearing and continue to work with them. 15 So, if I may approach, Your Honor, I have a clean and

16 a black line of the Sheppard Mullin order. 17 THE COURT: I’ll tell you what, can you give me --

18 give them all -- all to me together? 19 20 MR. MERCHANT: THE COURT: Absolutely.

Not that I want to deprive you of any

21 exercise, but maybe it’s more efficient that way. 22 MR. MERCHANT: I have separate folders for each

23 professional. 24 line. 25

Each contains a clean, each contains a black

THE COURT:

All right.

Thank you.

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22 1 MR. MERCHANT: If Your Honor looks at the black line

2 of the Sheppard Mullin order, the second so ordered paragraph 3 specifically defines the discreet matters that Sheppard Mullin 4 will be working on. 5 It also includes a monthly fee cap of twenty-five

6 hundred dollars for corporate matters on which they were 7 working on prior to the petition date. 8 The fourth so ordered paragraph, Your Honor, contains

9 a -- well, provides that the aggregate amount of fees from June 10 1st, 2007 going forward shall not exceed $35,000. And that’s

11 not inclusive of the twenty-five hundred dollar monthly cap on 12 the corporate matters. 13 Your Honor, I’ll also point out that Sheppard Mullin

14 filed a supplemental affidavit of Mette Kurth addressing 15 certain conflicts and disclosure issues raised by the Office of 16 the United States Trustee. 17 That was filed late yesterday, Your Honor. I do have

18 a copy, if Your Honor would like to view it. 19 THE COURT: No, that won’t be necessary. All right.

20 Anyone else care to be heard in connection with this 21 application? 22 MR. INDELICATO: Your Honor, Mark Indelicato from

23 Hahn and Hessen again. 24 And I just -- I think -- I’ll say this once, and I But the Committee

25 don’t think we need to say it for each one.

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23 1 has agreed to monthly caps and fee caps. Obviously that’s We have

2 subject to the Committee’s review for reasonableness.

3 put all of the professionals on warning that we want to make 4 sure there’s no duplication of effort. 5 To the extent there are discreet matters that they But -- but we are

6 need to handle, they will be paid for it.

7 going to look at these fee applications very carefully. 8 THE COURT: Yeah, and I -- I’m still reviewing the

9 second set of recommendations for fee auditor in this case. 10 And I, hopefully within the next week, will have one appointed. 11 And I will ask the fee auditor to give particular You know, not

12 attention to possible duplication of services.

13 just limited to when the lawyers are talking to each other, but 14 to anything else that might fall into that category. 15 16 17 18 19 THE COURT: MR. INDELICATO: THE COURT: Thank you, Your Honor.

All right. (Pause) That order has been signed. Thank you, Your Honor. The next

MR. MERCHANT:

20 application, Agenda Item 18, is the application to retain 21 Manatt, Phelps and Phillips, LLP as special securitization 22 counsel to the debtors. 23 Their work includes reviewing and analyzing the

24 agreements under which mortgage loan servicing is performed for 25 loans owned by Securitization Trust and other third persons,

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24 1 and interfacing with bankruptcy counsel regarding the 2 aforementioned contracts and industry practice relating to such 3 contracts, and providing advice and services relating to the 4 sale of such assets in connection with these Chapter 11 cases. 5 Again, we’ve revised the order to address concerns

6 raised by Office of the United States Trustee and the 7 Committee. 8 THE COURT: Does anyone else care to be heard in

9 connection with this application? 10 11 12 13 14 THE COURT: (No audible response heard) THE COURT: I hear no response. (Pause) That order has been signed. Thank you, Your Honor. Agenda Item Your

MR. MERCHANT:

15 Number 19 is the application to retain ICP Consulting.

16 Honor, we have continued this to the omnibus hearing scheduled 17 for June 27th at 10 A.M. 18 Agenda Item 20 is the Committee’s application to Your Honor, that was mistakenly put on

19 retain Hahn and Hessen. 20 the agenda.

I believe it was approved at the last hearing.

21 So, we’ve strucken it from the amended agenda. 22 23 THE COURT: All right. Agenda Item 21 is the stay relief I don’t believe there have been

MR. MERCHANT:

24 motion filed by Midfirst Bank.

25 any objections filed to that, but I can cede the podium to

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25 1 Midfirst Bank’s counsel. 2 3 4 THE COURT: THE COURT: All right. (Pause) Apparently not. I didn’t see a form of Did I just miss

5 order in the papers. 6 it? 7

Is there one somewhere?

MR. MERCHANT:

I honestly don’t recall, Your Honor.

8 It’s not our motion, but I don’t think our client has a problem 9 with the relief requested in the motion. 10 THE COURT: All right. Well, will you follow-up with

11 movant’s counsel then? 12 13 14 MR. MERCHANT: THE COURT: I will.

All right. I will. Agenda Item 22 is the Your Honor, this is

MR. MERCHANT:

15 application to retain Irell and Manella.

16 another application where we’re still working with the 17 Committee. 18 We’d like to continue this to a further date. Irell and Manella has -- has asked -- they’ve

19 inquired as to whether there’s a possibility of the application 20 being continued to the June 21st hearing. 21 omnibus date. It’s a special hearing. That’s not an

I think there’s one

22 motion on for that hearing at this point. 23 24 25 THE COURT: That’s fine. Thank you, Your Honor.

MR. REISNER: MR. POWER:

Your Honor, Mark Power from Hahn and

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26 1 Hessen. 2 That motion’s going to move to the 27th. So, this

3 would be the only thing on for the 21st.

And respectfully, you

4 know, we’d prefer if it could move to the 27th because -5 6 on. 7 8 9 MR. POWER: THE COURT: MR. POWER: We’re -But that’s going to be moved? I’m going to tell you a little bit, we’re THE COURT: I thought that other matters was still

10 going to move that to the 27th. 11 THE COURT: Okay. Then, yes, let’s move this matter

12 to the 27th, as well. 13 MR. POWER: Maybe counsel could appear by phone if

14 that’s necessary. 15 16 THE COURT: Yes, that’s fine with me. Your Honor, this is Jeffrey Reisner of

MR. REISNER:

17 Irell and Manella. 18 19 THE COURT: Yes. We appreciate the Court’s calendar and

MR. REISNER:

20 related issues. 21 We also should report to the Court that we have an

22 agreement with the Committee that in the event that our 23 application’s ultimately disapproved by the Court, that we will 24 be -- that we will be entitled to fees subject to 25 reasonableness, of course, through the date that the Court

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27 1 makes that decision. 2 The reason that’s very important is Irell continues

3 to actively assist the debtor with respect to defense of the 4 WARN Act litigation and with respect to certain employee 5 benefit matters. That assistance is needed now. It’s been on

6 -- it’s been ongoing.

And it’s the only way to really prevent

7 further prejudice potentially to Irell. 8 MR. INDELICATO: Your Honor, this is Mark Indelicato

9 from Hahn Hessen again. 10 They are correct. We had a discussion last night.

11 When we were unable to come to a resolution on the overall 12 retention application, what I did commit to them is to the 13 extent they’ve incurred fees that are reasonable and necessary 14 and to protect the estate, particularly even for the adjourned 15 hearing, that to the extent ultimately the application is not 16 allowed, subject to the reasonableness, we would not oppose the 17 payment of their fees just because their ultimate application 18 was not approved. 19 We do have some concerns, again, and this is one. We’re going to try

20 And we’ve addressed our concerns with them.

21 and they’re going to provide us with information to give us 22 budgets on a piecemeal basis for each stage of the litigation 23 so that we understand what the cost is going to be going 24 forward. 25 And we understand, and we think the Court

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28 1 understands, that although there is a WARN Act litigation out 2 there, as WARN Acts are treated outside of bankruptcy, they are 3 treated much differently in bankruptcy, and we just want to 4 make sure that to the extent there is any liability, we’re not 5 sure there is any, we use the estate funds to settle it as 6 opposed to litigate it and conserve estate assets. 7 So, that’s really what we’re focusing on with this.

8 We had told them, subject to the Court’s calendar, we would try 9 and get it on next week because of their issue. But we will

10 still commit to them that we will work next week to try and get 11 it resolved. And if we come to a resolution, either we will

12 come back on the 27th and maybe submit it under certification 13 of counsel, whichever the parties agree. But we have agreed

14 that their fees will be paid to the extent it’s reasonable, and 15 we will work to come to some resolution on some discreet 16 budgets on the phases of the litigation. 17 18 THE COURT: Thank you. Your Honor, good morning. Joseph

MR. McMAHON:

19 McMahon for the United States Trustee. 20 We are not taking the position with respect to Irell That is whether or

21 and Manella’s qualification to be employed.

22 not they hold an interest adverse and consistent with Section 23 327(e). But the only, I guess, qualified objection that I

24 would have to the Committee’s proposal is that in the event 25 that this Court were to find that there was a problem in that

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29 1 regard, then I think that the -- I guess paying the -- Irell 2 and Manella for that stub period would become an issue. 3 I don’t, you know, I guess, come to the podium to

4 create an issue, but just merely to identify our concern with 5 respect to the proposed resolution in that regard. 6 THE COURT: All right. Well, the Court need make no

7 ruling on that today. 8 All right. 9 10 11 12 excused? 13 14 15 THE COURT: MR. REISNER: MR. McMAHON: MR. REISNER:

And so I’ll leave that to a later day.

Your Honor -Thank you. -- this is Jeffrey Reisner. May I be

You may. Thank you. Your Honor, Agenda Item Number 23 is

MR. REISNER: MR. MERCHANT:

16 the application to retain Skadden Arps Slate Meagher and Flom, 17 LLP as special regulatory counsel. 18 Again, Your Honor, we’ve reached agreement and a There are basically two changes to

19 consensual form of order. 20 the form of order: 21

The effective date of -- the retention has been

22 revised to April 16th, 2007 as opposed to the petition date. 23 And Skadden has agreed to an aggregate case cap of

24 $230,000 with the understanding that the cap will be revised if 25 litigation in connection with the regulatory action in the

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30 1 State of Ohio is to heat up. 2 MR. INDELICATO: The only point being, Your Honor, is

3 if it’s revised, it’s going to be revised subject to Court 4 order, and all parties reserve their rights to then reexamine 5 the issue. 6 THE COURT: All right. I do have a question or two

7 about this one.

And that is in light of the other

8 representations that the firm has in connection or related to 9 the bankruptcy, I’d like specifically to know what, if any, 10 other ongoing representations in connection with the bankruptcy 11 Skadden intends to maintain, other than the representation of 12 the debtor? 13 MR. INDELICATO: Your Honor, I’ll let Skadden answer

14 that question.

But I will tell the Court that this was an And in

15 issue that was of particular concern to the Committee.

16 the interest of full disclosure, one of the members of the 17 Committee is represented by Skadden. They were not involved in

18 the discussions, they did recuse themselves. 19 We have asked the question of whether appropriate And we’ve been assured

20 ethical walls have been established.

21 that since the inception of the case and the inception of the 22 representations of the various parties, appropriate ethical 23 walls have been established. 24 We also spoke to the debtor about the need for We have been assured by

25 Skadden with respect to this item.

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31 1 debtors’ in-house counsel that on these issues, not only has 2 Skadden been involved for some period of time, it has enormous 3 institutional knowledge, but that also they are the premier 4 experts on this issue in this area. 5 And that given the constraints of the budgets that

6 we’ve put in place, the debtors’ representations, Skadden’s 7 representations regarding the ethical walls, the Committee felt 8 is was the best use of the estate’s funds to sort of let them 9 be retained to finalize what they’re doing. And then if

10 anything else comes up, we reserve the right to sort of 11 reexamine that. 12 13 THE COURT: MR. DAVIS: Very well. Good morning, Your Honor. Eric Davis

14 from Skadden Arps Slate Meagher and Flom LLP. 15 At this point, let me just explain the ethical walls

16 that we’ve created, Your Honor, and then with -- to your 17 pointed question, Mr. Baker represents McGuire, which is on the 18 Committee. And Mr. Durrer, who’s been before this Court

19 before, represents Ellington. 20 There is -- there was another purchaser that was

21 interested at one point, but I do not believe that’s ongoing. 22 That was D.E. Shaw. And the other representation in there that

23 was related to the case involved a former director of the -24 the company. 25 Century. But that is, again, not in connection with New

It’s in connection with his involvement with some

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32 1 Federal matters, and not -- not with respect to New Century. 2 It’s not a representation of New Century or against New 3 Century. 4 We actually began the process back in March, Your

5 Honor, when we took on representations that would be related to 6 the New Century matter. We created ethical walls within the

7 firm, specifically setting up teams that were divested from 8 each other. 9 The point about the Skadden representation in New There

10 Century is only related to State Regulatory matters. 11 were I think, 12 matters in the beginning.

It’s a very small

12 team out of -- out of D.C., and they have no involvement in the 13 bankruptcy case. I’m the only actual bankruptcy attorney

14 involved on the New Century side, and that’s just for retention 15 purposes. 16 Otherwise, there are no bankruptcy attorneys at

17 Skadden involved in the case and we’re not providing any type 18 of advice with respect to the bankruptcy case. It’s all just

19 with respect to State Regulatory matters at this point. 20 THE COURT: Well, are there -- for example, are there And whether -- in

21 any ongoing sale related representations?

22 the pipeline or which have been approved or which have closed, 23 but which might require further or might give rise to further 24 regulatory issues? See, one concern I have is you might be on

25 both sides of that fence.

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33 1 MR. DAVIS: We haven’t been on both sides of that The Ellington representation

2 mess at all.

I don’t believe so.

3 is the only one that’s actually before this Court with respect 4 to assets at this time. 5 I saw that -- again, I stayed so far apart from that

6 process that I just read in the DDR that there’s going to be a 7 further sale of assets to Ellington of about four -- a little 8 over $4 million. But there’s no involvement at all -- no due

9 diligence or anything from the Skadden Arps team that handled 10 regulatory matters for New Century. 11 debtors to provide information. 12 What they do is they interact with the State They’re not asked by the

13 Regulatory agencies with respect to the origination business, 14 and they’re not involved in the asset process at all in that 15 end. 16 17 THE COURT: MR. DAVIS: All right. So, there’s no both sides of the issue,

18 Your Honor, on that. 19 THE COURT: All right. Or in connection with any

20 other matter. 21 22 23 MR. DAVIS: THE COURT: MR. POWER: Not that I’m aware of. All right. Your Honor, it’s Mark Power from Hahn and

24 Hessen, counsel for the Committee. 25 I should mention, Skadden definitely is involved I --

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34 1 with buyers and potential buyers of asset sales that are 2 currently before the Court, and that will be going forward. I

3 am not aware of any regulatory matters in connection with those 4 asset sales that they would then be representing the debtor on 5 the other side. 6 I should also report that the sale that Ellington did Previously taken

7 prevail on which was the 170 million LNFA’s.

8 out of that sale were the Ohio based loans that were not 9 purchased by Ellington. And Skadden, on behalf of the debtor,

10 is assisting the debtor in the regulatory matters in Ohio. 11 So, I believe that issue, which clearly would have

12 been a conflict, I think, from the Committee’s point of view, 13 and probably from the Court’s, has been separated because 14 Ellington basically carved that out of what they acquired. 15 they’re not on both sides of that transaction. So,

And that’s the

16 only one that I’m aware of, which would have that kind of 17 problem. 18 19 THE COURT: MR. DAVIS: All right. And just to be totally clear, we’re not

20 going to be on both sides of any transaction with respect to 21 regulatory matters, Your Honor. 22 The -- the lawyers involved out of D.C. are not They are regulatory

23 involved in M and A transactions.

24 attorneys handling State Regulatory matters with respect to 25 doing business in particular jurisdictions. They’re not

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35 1 involved in drafting A.P.’s or anything along that line. 2 3 McMahon? 4 MR. McMAHON: Your Honor, we had a -- a discussion THE COURT: All right. Thank you, Mr. Davis. Mr.

5 with Skadden regarding the very issue that you -- the Court 6 identified with respect to the conflict concern. 7 And after speaking with Skadden, reviewing the

8 application, and considering, I guess, the -- what the 9 possibilities would be if we were to raise that issue 10 specifically with the Court, we did arrive at a -- some -- a 11 resolution, in part, with Skadden reflected in the start date 12 for the employment. There are economic consequences to that.

13 And I just wanted to note that for the Court. 14 THE COURT: All right. Thank you. Does anyone else

15 care to be heard in connection with this application? 16 MS. UHLAND: Your Honor, just briefly. Skadden

17 reflected that they were involved in the regulatory matters for 18 the loan origination platform. But because they’re also, in

19 effect, involved in all of the regulatory matters, in effect, 20 for the servicing licenses, and as the Court knows, we are -21 we are planning to have a transition services arrangement with 22 Carrington, so the maintenance of these -- this ability to 23 service our loans is critical, and that’s one of the reasons 24 the debtors and the Creditors’ Committee are so -- feel it’s so 25 important that we continue this retention.

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36 1 2 3 THE COURT: THE COURT: All right. Thank you.

(Pause) That answers my questions. The order has

4 been signed. 5 MR. MERCHANT: Thank you, Your Honor. The next

6 matter on the agenda is Agenda Item Number 24, it’s the 7 application to retain Howrey LLP, special outside counsel to 8 the Special Investigative Committee, Subcommittee of the Audit 9 Committee of the Board of Directors. 10 Again, we’ve revised the form of order to address

11 certain issues raised by the Office of the United States 12 Trustee and the Committee. 13 through those changes. 14 15 THE COURT: If you would. If Your Honor looks at the third soI’m happy to walk Your Honor

MR. MERCHANT:

16 ordered paragraph, it makes clear that the compensation to be 17 paid to Howrey is subject to the applicable sections of the 18 Bankruptcy Code, the Bankruptcy Rules, the Local Rules, and any 19 administrative order of this Court. 20 The fourth so ordered paragraph, Your Honor, makes

21 clear that to the extent the debtors seek to retain either of 22 the professionals mentioned in Paragraph 3 of the retainer 23 agreement, and those are entities related to Howrey, the 24 debtors will file further applications with the Court. And I

25 don’t think there’s any anticipation that we will be seeking to

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37 1 retain those professionals. 2 If Your Honor looks at the fifth so ordered

3 paragraph, it makes clear that the debtors are not waiving any 4 future undisclosed connections Howrey may have with any 5 interested party. 6 The sixth so ordered paragraph makes clear that the

7 Court shall have jurisdiction over any issues relating to 8 Howrey’s employment or compensation. 9 And the seventh so ordered paragraph provides a

10 $25,000 aggregate cap for all fees incurred from June 1st, 2007 11 going forward. 12 THE COURT: Does anyone else care to be heard in

13 connection with this application? 14 MR. INDELICATO: Your Honor, both with respect to

15 Howrey and Hillarim (phonetic), and which we’ll hear from 16 later, these are counsel that was retained by the debtors -- of 17 the Board of Directors Audit Committee to conduct a special 18 investigation. Howrey was conducted for a very specific person

19 -- to investigate a very specific issue and individual. 20 The Committee agreed to the increase in cap, the But the reason they agreed it is

21 $25,000, reluctantly.

22 apparently we’ve been informed that they haven’t made their 23 presentations yet, and they’re going to make their 24 presentations to the Board and to the Committee and to the 25 Examiner, and that’s why we’ve agreed to it.

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38 1 But with respect to both of them, and we’ve made this

2 point to the debtor, and we’d like to make it to the Court is 3 that our view is that the Audit Committee has done their job. 4 They are needed to transfer the information to the Examiner. 5 To the extent the Audit Committee believes there is any 6 additional investigations going forward, the Committee would 7 object to that unless we had consented to it, and maybe the 8 Examiner is required to consent, as well, and bring it to this 9 Court. 10 So, we have agreed to it, and we’ve dealt with that But that’s really our concern with

11 in the orders in the caps.

12 those -- those entities going forward. 13 14 THE COURT: MS. UHLAND: Thank you. And just to confirm, Your Honor, from

15 the debtors’ point of view, we completely agree with the 16 Committee. 17 Our view is that the Audit and the -- the Special

18 Investigation Committee and this additional Subcommittee should 19 report to the Committee at this point exactly where they are, 20 what their work product is, and if the Committee and the 21 Examiner collectively feel that in the cost benefit -- on a 22 cost benefit basis it makes more sense for them to complete 23 something, and they all agree on that, then that’s appropriate. 24 And otherwise, the goal is to, in effect, transition -25 transition this to the Committee and the examiner.

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39 1 2 3 4 THE COURT: THE COURT: All right. Thank you.

(Pause) The order’s been signed. Tank you, Your Honor. I believe the

MR. MERCHANT:

5 last retention application today is the application to retain 6 Grant Thornton, LLP as tax accountant for the debtors. 7 The Office of the United States Trustee did file a The issues raised by the

8 formal objection to the application.

9 Office of the United States Trustee have been revised to -- a 10 revised -- have been addressed through a revised form of order 11 and the filing of a supplemental affidavit. 12 13 of order. 14 15 THE COURT: Yes, please. Most of the changes are in Paragraph 3 I can walk Your Honor through the changes to the form

MR. MERCHANT:

16 to the order, Your Honor. 17 With respect to the tax compliance services,

18 Paragraph 2 of the Attachment A in their engagement letter will 19 be deleted in its entirety. And that relates to

20 indemnification and limitation of liability provisions. 21 With respect to tax consulting services, Paragraphs

22 2A and 2C of Attachment A will be deleted in their entirety. 23 And Paragraph 2B will be modified by the language

24 contained in the order, which basically subjects those 25 provisions to the Planet Hollywood language.

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40 1 In addition to those changes to your order -- to the

2 order, Your Honor, we’ve also filed a supplemental affidavit of 3 Donald Dahl, which attaches a payment run for the 90 days 4 preceding the petition date, and sets forth the agreement of 5 Grant Thornton to pay back $6,770 relating to an invoice that 6 the United States Trustee believes is arguably preferential. 7 The affidavit also contains the agreement of Mr. Dahl

8 to waive any claim relating to that repaid amount. 9 10 THE COURT: All right. And I believe that addresses all of

MR. MERCHANT:

11 the U.S. Trustee’s concerns, Your Honor. 12 THE COURT: Does anyone else care to be heard in

13 connection with this application? 14 15 (No audible response heard) THE COURT: I hear no response. I’ve reviewed it.

16 And based upon the changes that have been made, have no 17 questions. 18 19 MR. MERCHANT: THE COURT: Thank you, Your Honor.

Other than I don’t know why I keep seeing

20 applications that parties know I’m not going to approve over 21 the objection of the U.S. Trustee that have these provisions in 22 them. 23 MR. MERCHANT: I understand, Your Honor. A number of

24 those engagement letters were entered into pre-petition before 25 we had an opportunity to voice our opinions. So --

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41 1 2 THE COURT: All right. We knew there were issues, and we

MR. MERCHANT:

3 worked with the U.S. Trustee on them. 4 5 THE COURT: Thank you. Agenda Item Number 26, Your Honor, is We’ve continued that

MR. MERCHANT:

6 the motion of GECC for relief from stay. 7 to the June 27th hearing. 8 9 THE COURT: All right.

MR. MERCHANT:

And Agenda Item Number 27 is the And

10 motion of Daniel J. Rubio and others for relief from stay.

11 I believe there may be some form of agreement on a continuance 12 there, but I will cede the podium to my colleague, Mr. 13 Silberglied, and the movant, to address those issues. 14 15 THE COURT: Very well. Good morning, Your Honor. Karen

MS. BIFFERATO:

16 Bifferato on behalf of the Rubio plaintiffs.

I wanted to

17 introduce my co-counsel, Jim Trush from the Trush Law Firm. 18 He’s previously in this case been admitted pro hac vice. 19 20 THE COURT: MR. TRUSH: Welcome. Good morning, Your Honor. James Trush of

21 the Trush Law Office, counsel in the Rubio action in the 22 Central District of California, and appearing here pro hac 23 vice, along with co-counsel, Karen Bifferato. 24 MR. SILBERGLIED: Your Honor, for the record, Russ

25 Silberglied, Richards Layton and finger.

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42 1 We -- I hate to do this after Your Honor has prepared Um -- uh -- while the hearing had already

2 for the hearing.

3 started this morning, we were made a settlement proposal -4 settlement, not on the case itself, but on the stay relief 5 motion. 6 I have no authority whatsoever to accept that stay It’s not even business hours in California yet.

7 relief motion.

8 I haven’t talked to the Creditors’ Committee about the 9 proposal. 10 I don’t know whether it’s something that we will

11 entertain or not, but at the minimum, it makes sense to 12 continue the hearing so we could consider this and talk to our 13 client and talk to the Creditors’ Committee about it. 14 We don’t like to do that anymore because I actually

15 have a witness here who was ready to go and came in from 16 California, but with Your Honor’s permission, we would put this 17 over to the hearing on the 27th. 18 THE COURT: All right. Does anyone else care to be

19 heard on this request? 20 21 (No audible response heard) MR. SILBERGLIED: The stay will stay in effect

22 pursuant to this agreement until we’ve considered this, talked 23 to the Creditors’ Committee, and come back to the Court either 24 way. 25 MR. TRUSH: Your Honor, James Trush for the movants.

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43 1 We had a couple details of the continuance proposal that may be 2 appropriate for putting on the record. We had proposed that

3 Mr. Silberglied’s witness provide us with a proffered testimony 4 so that if we could potentially stipulate to that and the 5 witness wouldn’t have to come back next time. 6 And the other proposal was I think we agreed that

7 there weren’t going to be any further response or opposition 8 filed by the debtor in advance of the next time that this 9 matter’s heard if it’s not settled prior to that. 10 that was our agreement. 11 MR. SILBERGLIED: Well, I certainly agree to the I believe

12 latter, and it’s in compliance with the Local Rules, which 13 don’t permit me to file a surreply. 14 doing so. 15 With respect to the former in providing him with So, we had no intention of

16 proposed proffered testimony, I think I said I’d consider it. 17 I’m not sure I agreed to it. 18 19 THE COURT: Well, sounds like you did -Certainly if we can stipulate the

MR. SILBERGLIED:

20 facts, we would like to do so. 21 22 THE COURT: Sounds like you didn’t agree to it yet. Yes. We would certainly like to But how much we’re

MR. SILBERGLIED:

23 agree to stipulate to facts, if possible.

24 going to do so, I -- we have not yet determined. 25 THE COURT: Yeah. And I’d prefer not to get into

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44 1 evidentiary presentations now, especially if he who is offering 2 the witness isn’t inclined to do so. 3 4 5 6 All right. Thank you. Thank you, Your Honor.

MR. SILBERGLIED: THE COURT:

Put it over to the 27th. Your Honor, Agenda Number 28 is the

MR. MERCHANT:

7 omnibus relief from stay motion filed by the law office of 8 David J. Stern, P.A. 9 omnibus hearing. 10 I -- I believe movant’s counsel is on the phone. But This matter was continued from the last

11 I can report that they provided us with information in advance 12 of the last hearing. 13 client. We took that information back to our

My client has informed me that we have no objection

14 to the requested stay relief with respect to any of the 206 15 loans. 16 So, we would be fine with movant submitting a form of

17 order under certification of counsel. 18 19 THE COURT: All right. Frederic Dispigna, Your Honor, on

MR. DISPIGNA:

20 behalf of the movant. 21 22 23 24 THE COURT: Yes, do you wish to be heard? No, that’s fine.

MR. DISPIGNA: THE COURT:

All right. I’ll -- I’ll have a -- a proposed

MR. DISPIGNA:

25 order by, uh, Mr. Merchant.

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45 1 2 3 4 5 6 THE COURT: Very well. Thank you. May I be excused?

MR. DISPIGNA: THE COURT:

Thank you.

Yes. Your Honor, that -That -- I’m sorry. That’s all right. Your

MR. INDELICATO: THE COURT:

Oops.

MR. INDELICATO:

Too quick.

7 Honor, the only thing the Committee would request if the debtor 8 has done an analysis, if they would just share that with the 9 Committee so that we are comfortable that they have no interest 10 in any of the 260 (sic) loans, then we could, you know, consent 11 to the entry of the order. But we haven’t seen their analysis,

12 so we’d like to see that before we make a determination. 13 14 15 THE COURT: All right. Thank you.

MR. INDELICATO: MR. MERCHANT:

Your Honor, Agenda Item Number 29 is That was continued to the

16 the adequate protection motion. 17 hearing on the 21st.

But I believe Mr. Power has indicated

18 that that’s going to be continued to the omnibus date scheduled 19 for the 27th. 20 MR. POWER: Good morning, Your Honor. Mark Power

21 from Hahn and Hessen. 22 I’m shocked we’re going to be done today on Friday by But this matter, Your Honor, is a moving target.

23 11, I think.

24 We have been in -- the debtor and the Committee have worked 25 closely. But we did provide counsel for a number of the

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46 1 parties involved in this a draft order. They have given back -2 they have worked together actually and assisted us in giving 3 back collective comments on that order which were extensive and 4 we got that back a few days ago. 5 Given the amount of parties involved and the amount

6 of issues involved, and the logistics of the parties, what 7 we’ve decided to do is the debtor and the Committee have 8 committed to provide these parties a response to that order on 9 Monday -- by Monday. 10 And the -- we’re trying to save the Court and all the

11 parties a tremendous amount of expense dealing with the tracing 12 issues that are involved in this matter, which can be 13 tremendous, by trying to work with the debtors to have can be 14 produced and what’s feasible. And we’ve had some productive

15 conversations in that regard with debtors’ counsel and 16 Committee’s counsel and some of the people. 17 We would anticipate trying to work through a We decided -- originally we were But when

18 consensual order next week.

19 going to go to the 21st for this continued hearing.

20 we looked at the logistics, we decided it was more practical to 21 put this on for the 27th. 22 I have been in communication with all the counsel and

23 basically advised them of this and I am not aware of anybody 24 objecting to the adjournment to the 27th of this matter. 25 We will -- the debtor has agreed and the Committee

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47 1 has agreed to certain conditions as a part of that adjournment: 2 First, that this does not end up pushing off the In other words, we

3 reconciliation deadline of June 29.

4 originally advised your Court that we were going to try to -5 the debtor was going to try to get the reconciliations done, 6 and the Committee review it. 7 deadline. 8 Second, the Committee and the debtor have agreed that We’re going to stick with that

9 when the for Carrington closes, funds will be escrowed from 10 that. And we will continue to agree to that, we’re not

11 changing our position. 12 So, when that sale, which is scheduled to close

13 before the end of June, those monies will be escrowed, if not 14 sooner. 15 Depending on what happens in the case. Third is we’ve committed to certain deadlines to try And I think we’re

16 to move this forward, and we’ve done that.

17 going to try to have a meeting next week in New York and then 18 hopefully resolve it. 19 The fourth item, Your Honor, is if the parties do

20 have a consensual order that everyone can agree to, and we can 21 submit a certification, we will try to do that by the end of 22 next week. And, therefore, not need a hearing before Your But we’re working towards that

23 Honor on the 27th, God willing. 24 goal. 25

I should give Your Honor forewarning, and this is a

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48 1 moving target. But the order basically provides for the escrow Provides for the production of And then in essence, the parties

2 and the adequate protection. 3 information to the parties.

4 have a period to come back and respond and try to work out 5 those issues so we don’t litigate over, you know, thousands of 6 entries and back accounts. 7 And then the parties are supposed to have a stay

8 period in which they will try to meet, lay out the legal 9 positions of everybody and see if they can resolve the matter 10 consensually before we get into the next round, which would 11 either be litigation or some form of alternative dispute 12 resolution mechanism. 13 We haven’t agreed to that now. So, what we’ve agreed And then we’ll

14 to is stay everything. 15 see where we go. 16

Everybody will freeze.

I should mention also, not to -- UBS is part of these They have a separate piece, but it’s related to

17 discussions. 18 this.

And they have been intimately involved in the whole So, it may be that we can fold all that in.

19 negotiation. 20

So, that’s an update I’ve -- I told counsel that I And that’s why we were happy to tell

21 would provide the Court.

22 the Court we don’t think we’ll need the hearing for the 21st, 23 so Your Honor can mark that off the calendar, and we’ll move it 24 to the 27th. 25 THE COURT: Very well. Thank you.

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49 1 MR. MERCHANT: Your Honor, I believe that’s all we

2 have for today.

Agenda Item Number 30 has also been continued So, there’s nothing further. Well, given how the 27th is

3 to the hearing on the 27th. 4 THE COURT:

All right.

5 shaping up, anybody have any notion of what kind of time you 6 will need on that day. I know that there are things which are

7 in process, which may affect the answer, but just as an initial 8 matter. 9 MS. UHLAND: Your Honor, I think we’re going to If the Rubio motion goes forward, I would say hour and a half. There’s a

10 require substantial time.

11 that’s an evidentiary matter. 12

We’ve moved the technology sale motion.

13 number of contracts to be signed there.

So, there could be --

14 I think it’s been taking us an hour and a half to two hours, 15 kind of on average on our record on that. And then this

16 adequate protection matter based on preference agreements is 17 another -18 19 20 a half. (Attorneys conferring off-the-record) MS. UHLAND: -- another transact -- another hour and

And then we have a further asset sale motion that we

21 sought on shortened time. 22 23 24 25 THE COURT: MS. UHLAND: THE COURT: MS. UHLAND: All right. So, we’re starting at ten, aren’t we? Yes, we are. Oh, good. Okay.

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50 1 2 3 4 5 6 hearing. 7 8 9 10 11 12 I, Karen Hartmann, certify that the foregoing is a C E R T I F I C A T I O N THE COURT: MS. UHLAND: THE COURT: And I’ve scheduled nothing else. All right. All right. Thank you, Your Honor. Anything further for today?

(No audible response heard) THE COURT: Thank you, all. That concludes this

Court will stand in recess. (Proceedings Adjourn at 10:59 A.M.)

13 correct transcript to the best of my ability, from the 14 electronic sound recording of the proceedings in the above15 entitled matter. 16 17 /s/ Karen Hartmann Date: June 24, 2007

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