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UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK Case No. 10-13800-scc - - - - - - - - - - - - - - - - - - - - -x In the Matter of:

INNKEEPERS USA TRUST, et al,

Debtor.

- - - - - - - - - - - - - - - - - - - - -x

United States Bankruptcy Court One Bowling Green New York, New York

August 30, 2010 11:00 AM

B E F O R E: HON. SHELLEY C. CHAPMAN U.S. BANKRUPTCY JUDGE

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Page 2 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 Motion for the Entry of an Order Authorizing the Debtors to Obtain Postpetition Financing from an Affiliate of Lehman ALI Inc. on a Priming Basis Pursuant to Sections Debtors' Motion for an Order (A) Authorizing the Debtors to Assume the Plan Support Agreement and (B) Granting Related Relief Debtors' Motion for the Entry of an Order Authorizing the Continued Use of (I) Existing Cash Management System, as Modified Herein, (II) Existing Bank Accounts, (III) Existing Business Forms, and (IV) Certain Existing Investment Guidelines Debtors' Motion for the Entry of Interim and Final Orders (A) Authorizing the Debtors to (I) Use the Adequate Protection Parties' Cash Collateral and (II) Provide Adequate Protection to the Adequate Protection Parties Pursuant to 11 U.S.C. 361, 362, and 363, (B) to the Extent Approved in the Final Order, Granting Senior Secured, Priming Liens on Certain Postpetition Intercompany Claims, (C) to the Extent Approved in the Final Order, Granting Administrative Priority Status to Certain Postpetition Intercompany Claims, and (D) Scheduling a Final Hearing Pursuant to Bankruptcy Rule 4001(b) Pre-trial Status Conference

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Page 3 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 Transcribed by: Zipporah Geralnik Motion of Ad Hoc Committee of Preferred Shareholders for Order Directing Appointment of Examiner Pursuant to Section 1104(c)(1)-(2) of the Bankruptcy Code Debtors' Motion for the Entry of an Order Authorizing the Debtors to Obtain Postpetition Financing from Five Mile Capital Partners on a Priming Basis Pursuant to Sections 364(c)(1), 364(c)(2), 364(c)(3), and 364(e) of the Bankruptcy Code 364(c)(1), 364(c)(2), 364(c)(3), 364(d)(1), and 364(e) of the Bankruptcy Code

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Page 4 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: DAVID M. NEFF, ESQ.

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A P P E A R A N C E S : KIRKLAND & ELLIS LLP Attorneys for Debtor 300 North LaSalle Chicago, IL 60654

BY:

ANUP SATHY, P.C.

KIRKLAND & ELLIS LLP Attorneys for Debtor 655 Fifteenth Street, N.W. Washington, D.C. 20005

BY:

DANIEL T. DONOVAN, ESQ.

PERKINS COIE LLP Attorneys for CWCapital Asset Management LLC and C-3 Asset Management, LLC. 131 South Dearborn Street, Suite 1700 Chicago, Illinois 60603

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Page 5 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: PHILIP K. WANG, ESQ. DUANE MORRIS LLP Attorneys for LNR Partners LLC 1540 Broadway New York, NY 10036 BY: LORENZO MARINUZZI, ESQ. MORRISON FOERSTER LLP Attorneys for Official Committee of Unsecured Creditors 1290 Avenue of the Americas New York, NY 10104 BY: ADAM L. SHIFF, ESQ. DANIEL A. FLIMAN, ESQ. A P P E A R A N C E S (continued): KASOWITZ, BENSON, TORRES & FRIEDMAN LLP Attorneys for Five Mile 1633 Broadway New York, NY 10019

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A P P E A R A N C E S (continued): PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP Attorneys for Apollo 1285 Avenue of the Americas New York, NY 10019

BY:

ANDREW J. EHRLICH, ESQ. ALAN W. KORNBERG, ESQ. EVAN R. ZISHOLTZ, ESQ.

HAYNES AND BOONE LLP Attorneys for Midland Loan Services, Inc. 2323 Victory Avenue Suite 700 Dallas, TX 75219

BY:

LEONARD M. PARKINS, ESQ. JOHN D. PENN, ESQ.

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Page 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 BY: IRENA M. GOLDSTEIN, ESQ. DEWEY & LEBOEUF LLP Attorneys for the Ad Hoc Committee Preferred Shareholders 1301 Avenue of the Americas New York, NY 10019 BY: MICHAEL J. SAGE, ESQ. BRIAN E. GREER, ESQ. DECHERT LLP Attorneys for Lehman ALI, Inc. 1095 Avenue of the Americas New York, NY 10036 BY: LAWRENCE P. GOTTESMAN, ESQ. A P P E A R A N C E S (continued): BRYAN CAVE LLP Attorneys for LNR Partners, LLC 1290 Avenue of the Americas New York, NY 10104

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A P P E A R A N C E S (continued): KILPATRICK STOCKTON LLP Attorneys for TriMont Real Estate Advisors Suite 2800, 1100 Peachtree Street Atlanta, GA 30309

BY:

TODD C. MEYERS, ESQ.

SHEPPARD MULLIN RICHTER & HAMPTON LLP 30 Rockefeller Plaza, 24th Floor New York, NY 10112

By:

Blanka K. Wolfe

U.S. DEPARTMENT OF JUSTICE Office of the United States Trustee 33 Whitehall Street, 21st Floor New York, NY 10004

BY:

PAUL K. SCHWARTZBERG, ESQ.

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Innkeepers USA Trust

Page 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 THE COURT: P R O C E E D I N G S Okay. Good morning, everyone. Thank you

all for coming down this morning. some housekeeping matters first?

Why don't we take care of And I guess the gating one is

confidentiality and the extent to which we need to insure that the folks in the room and on the phone -- and I'll take those appearances in a moment -- are covered by the confidentiality state -- I'm not certain that anything we're going to actually talk about today is confidential. People are squiggling their But one of the things

noses and nodding at me which is fine.

that I want to talk about today is the extent to which, going forward, these various sealing orders a, need to be continued to be filed, I got another one thing morning, and b, the extent to which they can be lifted. inclined to go. So it's a threshold matter. I'll be okay proceeding Which is where I'm very much

and agreeing that we're not going to discuss anything that is, as of the moment, covered by the sealing orders in the confidentiality solely for the purposes of conducting this pretrial. MR. SATHY: THE COURT: MR. PARKINS: THE COURT: Your Honor, for the debtors, that's fine. All right. Midland is fine, Your Honor. All right. IS there anyone -- and I

assume -- is everyone in this room, at least at the moment,

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Page 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 signatory to the protective order and therefore in the zone of confidentiality? MR. SCHWARTZBERG: the U.S. Trustee's office. THE COURT: Your Honor, Paul Schwartzberg for I haven't even seen them. Does anyone have an issue with All right, Mr.

All right.

Mr. Schwartzberg remaining in this hearing? Schwartzberg, you're in. MR. SCHWARTZBERG: THE COURT:

Thank you, Your Honor. Why don't we find out who's on

All right.

the phone and then we'll continue. MR. NEFF: Good morning, Judge. Yeah, this is David

Neff, N-E-F-F, on behalf of CWCapital Asset Management, LLC and C-3 Asset Management, LLC. THE COURT: MR. WANG: All right. Good morning, Mr. Neff. This is Philip

Good morning, Your Honor.

Wang, W-A-N-G, of Duane Morris, on behalf of -- LNR Partners, LLC. THE COURT: All right. Good morning, Mr. Wang. Very well. Is anyone from the press Is

anybody else on the phone?

All right.

Second housekeeping matter. I the room? Good morning.

Last week there was published an

account so just -- I asked if everybody in the room was covered by confidentiality. You folks should have raised your hands You're welcome to stay but I

and let me know you were here.

need to be aware of who's here and who's covered by protective

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Page 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 orders so next time when I ask that question, please let me know that you're here. Secondly, our chambers contacted the debtors last week because a report that we read in Bankruptcy 360, inaccurately reflected the result of the hearing that was conducted here on the committee's motion for 2004. Ordinarily, I'm not going to

be the police with respect to what's reported in the press but it was our view that that report was so erroneous that it needed to be corrected. And the debtors undertook to have a

conversation and I understand that somewhere on line there's been a modified version of that story filed. It just troubled me that there was a report that the examiner had been appointed before we had a hearing. I'm sure,

if some of you read that, that took you by surprise as well. So, you know, generally speaking, obviously the press is welcome. I would suggest to you that if you ever have any

questions leaving a hearing, there's plenty of lawyers that can answer any questions that you have in a big public case such as this and it's important that the marketplace have accurate information. Okay. The principal purpose of getting you all

together today was to talk about how you want to proceed over the next two days. 1. We are scheduled for hearing on September

We had discussed the possibility of starting some things on So I

October -- October, wishful thinking -- on August 31st.

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Page 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 partner. first? want to get reviews on how much time you think each matter is going to take, in what order you think it makes sense to proceed and also I'd be delighted to hear about any resolutions you've reached with respect to the many matters that are contested. So that being said, why don't I hear from the debtors Also we'll deal with Marriot at some point today but

let's leave that for the end because that has a whole separate host of sealing issues. MR. SATHY: THE COURT: MR. SATHY: Good morning, Your Honor. Good morning. Anup Sathy from Kirkland. Dan Donovan, my

Your Honor, the -- I think the current status is that

we have the two DIP motions, cash collateral, plan support agreement and the examiner. buckets -THE COURT: MR. SATHY: Right. -- if that's the best way to describe it. So I'd sort of put them into those

I think our perspective is that while they're all related in some way and they all touch each other, that we could, if we were to do it in a specific order, move to have the DIP hearings and cash collateral if the parties wanted to try to move those first but that there's some logic to that sequence. The objections -- and while this entire case has been contested, I think the objections with respect to DIP and cash

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Page 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 collateral are not as strenuous, frankly. the DIP lenders to resolve objections. taxing authorities -THE COURT: MR. SATHY: Right. -- the creditors committee, LNR's We're working with

For example, Texas

objection, which is basically they want to be able to stand in to the tranche b and trance c and we're working with them and with Marriot and the Five Mile Group on the -- with respect to the Dip to try to resolve that objection. there's still a lot of work to do on that. So, I think there's some logic if the parties wanted -- if fact, we're open to do whatever the Court wants and the parties. We can move tomorrow, we can move Wednesday. But there might be some logic to We're hopeful but

It's -- we're very flexible.

moving with cash collateral and the DIPS either at the beginning of the day Wednesday or tomorrow afternoon to try to resolve those issues. I think that, with respect to cash

collateral, I think it's frankly the same issues that Your Honor heard on the first day. THE COURT: MR. SATHY: new issues. Right. I don't think there are really any really

Some of the same issues maybe with a new spin or a But I think,

new twist and some additional circumstance.

frankly, the core of the cash collateral dispute is the same as Your Honor heard on the first day. So there is some logic --

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Page 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 THE COURT: MR. SATHY: those first. Right. -- if the parties wanted to move with

I don't know -- with respect to testimony, we --

I think our current intention is not to call Mr. Cook who's -or Mr. Derrough but submit their declarations, both in favor of the Dip for Mr. Derrough and cash collateral with respect to Mr. Cook, make them available -THE COURT: MR. SATHY: Available. -- if parties wanted to cross-examine but

not to have a direct testimony from either one of those parties. I think the issues are relatively straightforward and

if they wanted to be cross-examined, certainly we would have them here and available with respect to those -- that group of pleadings. THE COURT: All right. Let me hear from Midland with

respect to cash collateral because I assume that Midland is going to continue to take the laboring or -- on that group of objections. MR. PENN: That's correct, Your Honor. John Penn on

behalf of Midland Loan Services.

And on the cash collateral we

would agree we have one declaration with cash collateral that's Mr. Greenspan. I'm double checking now his calendar to see if We know he's available for

he's available for Tuesday.

Wednesday I just had never asked the question about Tuesday. But otherwise --

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Page 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 Lehman. THE COURT: Okay. I mean I don't want to -- I will

only accelerate something to Tuesday if it works in terms of everybody's availability. No one's going to be prejudiced by, My concern is the obvious

frankly, my desire to be efficient. one.

That the main event, the PSA, and perhaps to a lesser

extent although I have no idea what people are going to do on the examiner, I think we're staring at a very full day on September 1st. So to the extent that we can get cash

collateral out of the way tomorrow, I think that would be a good thing. I'm of two minds with respect to the DIP because on the one hand I feel that that the longer you talk to each other, maybe the more you get resolved although at a certain point you'll either get there or you won't. And what I'm

thinking in terms of when to start, subject to everyone's availability would be to do an afternoon session tomorrow starting at 2 o'clock and run as long as we could tomorrow. And that way you have the remainder of today to get ready and to continue to negotiate. So that's kind of -- those are my hypothetical coming in to this morning. something. MR. SAGE: Michael Sage from Dechert on behalf of I think Mr. Sage wants to tell me

The only point we would make or the only iteration on

all that is that we would ask the Court, with respect to cash

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Page 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 collateral, even if other parties are inclined to have that go forth fully tomorrow, to hold the order on that until Wednesday, until the PSA date. Because in our view there are

some ties between cash collateral and the PSA. So while we are fully supportive of going forward on the DIP tomorrow, we prefer that if cash collateral testimony happens, arguments or others technically during cash collateral day, they're not being ordered on that until Wednesday at the earliest. THE COURT: Okay. But you're going to have to walk me

through a little bit of the logic with that -MR. SAGE: THE COURT: stands on its own. Sure. -- because cash collateral, in my mind, I understand that the PSA gives Lehman --

in the event the PSA were to be approved, Lehman has rights on a termination event to terminate its consent to cash collateral. MR. SAGE: THE COURT: That's exactly the -- I'm sorry. But we get through cash collateral and

hypothetically we agree on what I order, that the cash collateral be approved, and then hypothetically the PSA doesn't get approved. Is that -- I mean -That's exactly the concern. Okay. So --

MR. SAGE: THE COURT: MR. SAGE:

That there are termination events and

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Page 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 triggers tied to the PSA that are related to cash -THE COURT: MR. SAGE: THE COURT: don't have to. Right. But --

-- that are under cash collateral. But if you -- you have to approach -- you

You can do whatever you want. I will. But I would think that in the record of

MR. SAGE: THE COURT:

the cash collateral hearing, we have to deal with the scenario in which the PSA gets approved and the PSA doesn't get approved because the company has to use cash collateral in some, you know -MR. SAGE: I understand. And I'm not suggesting I'm

there'd be a termination on Tuesday of cash collateral.

just saying that we view it in nature of a bridge order, from Tuesday to Wednesday, and -THE COURT: Well, I think you can operate -- I mean

continue to operate under the interim until I enter the final. MR. SAGE: THE COURT: MR. SAGE: THE COURT: Exactly. So that's not the issue. Exactly. That's right.

The issue is we go through a cash

collateral hearing -- and this is all hypothetical, I'm not ruling on anything. MR. SAGE: THE COURT: I understand. We go through a cash collateral hearing

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Page 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 and at the end of the hearing, hypothetically, I approve the debtors' motion to use cash collateral. Then we get to the PSA Do we then have Because that

and, hypothetically, I don't approve the PSA. to reopen the record of the cash collateral? really can't so much happen. MR. SAGE:

What I'm suggesting is that Tuesday and So that, to me, the record It just

Wednesday are like one long day.

hasn't closed on Tuesday at the end of the day.

hasn't -- we haven't had an order -- a final order yet of the Court until Wednesday because they are still, in our minds, connected. We negotiated cash collateral and the PSA together

and our consent to the form of cash collateral order and its permutations are all tied to the PSA. So, from my perspective, it would change how we approach this case with the company if cash collateral gets approved. I mean, that's not the end of the world if we have

to go there because the Court's leaned that that's what we have to do. And we just view it as a potential termination event if So I'm not so, you know, firm on this

we didn't get the PSA.

that I think it's absolutely the only way to go. THE COURT: But you're only -- we're only in the world So we have

of termination events if the PSA gets approved. a -MR. SAGE:

But our consent -- our consent is a

daily -- in other words, we don't -- we are consenting going

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Page 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 that. path. into the hearing. So we approach this hearing -- I'm not We wouldn't necessarily be in that

Midland in a consent mode.

mode if we didn't have a PSA. THE COURT: I understand. So -- but then we have the

situation where, in essence, you are -- there's a contingent objection out there waiting to happen. MR. SAGE: THE COURT: MR. SAGE: Yes, that's right. Right? And we'd prefer not to be -- we'd prefer

not to go down that path. THE COURT: MR. SAGE: THE COURT: Right. We think it's inefficient. No, I know you prefer not to go down that

I'm just trying to understand how we -- you know, we get

to the end of the day on Wednesday and hypothetically, hypothetically only, that if I were going to not approve PSA, then you're saying -- you're telling me that you're going to take the position that we have to go back into cash collateral because you then would no longer be not objecting? MR. SAGE: I would like at least the opportunity to do

That's -- because we negotiated it all as one, it would

be hard for me to, right now, say that I'm fine with the cash collateral regardless of what happens at PSA. THE COURT: MR. SAGE: All right. And maybe that's where the Court ends up

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Page 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 but that's how -THE COURT: All right. Well, I guess we're just going

to have to cross that bridge when we come to it. THE COURT: THE COURT: MR. MEYERS: Thank you, Your Honor. So -- okay. Good morning, Your Honor. Todd Meyers,

Kilpatrick Stockton, on behalf of TriMont Real Estate Advisors. Your Honor, as I think you are aware, TriMont in the mezzanine lender both with respect to the floating rate pool and also with respect to the Anaheim property. Your Honor, TriMont I believe we have

filed an objection to the Lehman DIP loan.

the only objection to that loan and I don't -THE COURT: MR. MEYERS: You are. I don't want Mr. Sathy's comments to

understate the importance of that issue to us because we believe that if that DIP is approved in its current form, it is going to substantially impair my client's rights to protect its collateral if not completely eliminate those rights. THE COURT: I understand. So --

I don't -- I think that he

was speaking in relative and volume terms with respect to the amount of paper that I have but you don't have to argue the merits now. I understand. Right. And I would agree that

MR. MEYERS:

notwithstanding the importance of it, I'm not sure that it's going to take all that long to make argument on it. We may

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Page 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 need to cross-examine Mr. Derrough. decision on that. I haven't made a final

I would also note, with respect to the

declaration of Mr. Derrough, that while we're okay with allowing that declaration to come in as -- in general as his direct, which may be a little different than what you're going to hear about Mr. Beilinson's declaration in a few minutes. But with respect to Mr. Derrough's declaration, we do have a problem with paragraph 15. I think it lacks foundation.

It talks about -- in paragraph 15 of Mr. Derrough's declaration, it says "the debtors' ability to obtain postpetition financing from alternative parties, especially on terms other than a senior, secured, superpriority basis however, is complicated by several factors including the debtors' substantial amount of undersecured debt and lack of any significant unencumbered assets." And I just -- I think that there's a -- you know, the undersecured nature of the debtor lacks foundation. think there's been valuation testimony in this case. you know, he can -THE COURT: MR. MEYERS: Okay. -- state his opinion as to how he I don't And so --

approached it but I don't want to come in as any kind of valuation testimony. THE COURT: All right. I'm not making any evidentiary

rulings today and I think when we get there tomorrow or the

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Page 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 next day, you know, you can make that objection. it. We'll rule on

He'll be here for cross-examination in any event and we'll But I understand your -- you

just see how that plays out. don't want to be waiving -MR. MEYERS: THE COURT: MR. MEYERS:

Understood. -- any of your rights. And the last point I'll make is that we

submitted a declaration of Travis Shelhorse in support of our declaration -- in support of our objection. I was not aware

that we were -- that tomorrow Williams Street under consideration for the DIP hearing. Mr. Shelhorse is in Atlanta

and he's not due to arrive in New York until tomorrow evening. I don't know if the debtors plan to cross -THE COURT: All right. Look, I started -- at the

outset I said nobody's rights are going to be prejudiced by the non-availability of a witness. We put the 31st date out there,

as a possibility to ease the burden on everybody and if he's not available, we just won't st -- and we need him, and you need him, we won't start without him. MR. MEYERS: Well, we're going to submit his

declaration but the debtors may want to cross him and, in any event, I think he should be -- would want to be present at the hearing in either event. certainly like to -THE COURT: All right. So, I appreciate it and we'd

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Page 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 forward? MR. SATHY: Your Honor, we are -- we're working to We're working to MR. MEYERS: --- minimize the first as well. I think

the DIP has to be dealt with on the first. THE COURT: we're down to -MR. MEYERS: THE COURT: Thank you, Your Honor. -- what about the other DIP? Can that go On the 1st. Okay. That's fine. So then

resolve LNR -- Mr. Gottesman is standing up.

resolve LNR's objection to the -- and the committee's objections which I think are resolvable. We're frankly waiting

to hear back from Five Mile on a proposed resolution that we think will resolve -THE COURT: MR. SATHY: THE COURT: MR. SATHY: committee. THE COURT: MR. SATHY: THE COURT: MR. SATHY: Right. Of course. Yeah. We're working through that. You know, Right. Oh sure. -- and the committee. Of course. Right. The creditors But you also got the ad hoc --

ultimately our hope is to get them all resolved or they get resolved by tomorrow afternoon. THE COURT: All right.

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Page 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 whatever. first. MR. SATHY: We would certainly try to. Just to Mr.

Meyer's points, we're not intending to cross-examine his declarant but if he wants to be here for the hearing, of course, we understand that. THE COURT: MR. SATHY: his clients. THE COURT: All right. So I think where we are is Okay. You know, this is an important hearing for

that subject to your conferring with one another, we could go forward with cash collateral tomorrow afternoon starting at 2, subject to confirmation of everybody's availability. And you

want to leave it open for the rest of the day as to whether or not we go forward with the Five Mile DIP. I mean, subject to

your ability to let everybody in this room -MR. SATHY: THE COURT: Of course. -- know or put notice on the docket or

And for the Lehman DIP, we will wait until the So that takes care of the first matter.

All right?

With respect to the first then, my view is that the PSA should be heard before the examiner motion and I'd like to get some sense from all of you how long you think your presentations are going to take. MR. DONOVAN: THE COURT: MR. DONOVAN: Good morning, Your Honor. Good morning. Dan Donovan, Kirkland. I think our

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Page 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 direct evidence on the PSA -- we intend to submit affidavits, we probably will supplement it with some direct testimony plus argument. direct. I'd say probably an hour including our argument and I don't know how long cross will be but that's our

current intention. THE COURT: MR. PARKINS: Okay. Thank you. Leonard

Your Honor, good morning.

Parkins with Hayes & Boone for Midland. THE COURT: MR. PARKINS: had a call last night. Good morning, Mr. Parkins. I would think -- the special servicers We're going to try to -- we're going to

try to come in organized on Wednesday and we will take the lead with the assistance of the other special servicers with respect to their issues or if I forget something which I'm sure I will with respect to going forward. It's hard to say because we are not going to agree to be limited by the scope of direct. We will want to call

witnesses like Mr. Beilinson as adverse direct in our case in chief. And so, that being the case, it's hard to say. I would

say three to four hours total for our side.

We have, last

night, circulated exhibits as of midnight that we had put together to I think Kirkland and others with respect to taking a look at the exhibits which we want to put into evidence and consider. We haven't gotten anything back from anybody else

but we put those in play yesterday, or this morning really,

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Page 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 early this morning so that people could take a look at them so we'll try, between now and then, expedite the presentation with respect to exhibits and authenticity, admissibility, things like that. We'll try to get as much of that -All right. -- as we can done. And then you're going to -- when you get

THE COURT: MR. PARKINS: THE COURT:

through that process, you're going to supply us with a copy? MR. PARKINS: Yes. We would probably call -- I think

that there's a consensus on our side that we would not accept much of Mr. Beilinson's declaration as either hearsay, attempt to testify as an expert. We would want either to object to the

proffer of it and have him testify directly or we clearly intend to call him as an adverse witness on direct of our case in chief because we don't want to be limited by the scope of their direct. Mr. Lasher ph.), a gentleman from Lehman Mr.

Brothers, we intend to call as an adverse witness. Greenspan we intend to call. our thought is -THE COURT: MR. PARKINS: THE COURT: All right. -- with respect to our case.

And -- as of now, that's where

Well, those two gentlemen are obviously

key players in the dispute or at least have -MR. PARKINS: THE COURT: Yes. -- been identified as such. And I think

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Page 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 that it makes sense that I hear from them directly and that there not be proffers and there not be declarations. MR. PARKINS: THE COURT: MR. PARKINS: information. Well -Let's just have them --- I don't think Mr. Lasher submitted

I think Mr. Beilinson did submit a declaration. He did, Your Honor. I'm happy to do it

MR. DONOVAN:

but I will need more time if that's what I'm going to do with him because I was hoping to do a lot of his background stuff. But if there's objections -THE COURT: MR. DONOVAN: THE COURT: Well --- we'll do it. -- if you could agree on the -- you know,

on the background stuff that's -- you know, I don't need to hear half an hour of every case, you know, and all of their qualifications. I mean, if you guys could agree to do that by

way of a proffer or a declaration -MR. PARKINS: THE COURT: MR. PARKINS: THE COURT: We will try. -- that would certainly -We will try. -- be terrific. But in terms of the I think

actual -- who said what to whom and the controversy. we should just have that live. MR. PARKINS:

But as I say, we're not going to want to

be limited by the scope of their direct examination so we will

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Page 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 call them -THE COURT: MR. PARKINS: THE COURT: MR. PARKINS: THE COURT: I understand. -- as our own case in chief. All right. Thank you. Is there anybody else who plans to take up

a sizable amount of time at the hearing on the plan support agreement? All right. I understand everybody's rights are

reserved, of course. MS. GOLDSTEIN: Yeah. Irena Goldstein, Dewey & I

LeBoeuf, for the ad hoc committee of preferred shareholders. think we will need about an hour or so on cross on the PSA. And also, I just want to raise one issue. We still have not

received all the discovery we've requested from the debtors. Hopefully we can resolve that consensually but I just wanted to raise that to Your Honor in case I have to reach out -THE COURT: All right. That's discovery that's non-

duplicative of things that you've received or have been produced pursuant to other's discovery? MS. GOLDSTEIN: THE COURT: Goldstein. MR. SHIFF: THE COURT: MR. SHIFF: Your Honor, Adam Shiff -Yes. -- Kasowitz, Benson, Torres & Friedman -Correct. All right. Thank you, Ms.

Okay.

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Page 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 but -THE COURT: MR. SATHY: Five Mile -THE COURT: And I know that Appaloosa and Five Mile -All right. -- clearly with respect to Appaloosa and go ahead. MR. SATHY: I stand to make the standing agreement. THE COURT: MR. SHIFF: Good morning. -- on behalf of Five Mile. Good morning.

I don't know if this would qualify as substantial time but I think we would expect to take, if necessary, about fifteen minutes of cross and maybe, briefly, fifteen to twenty minutes of argument, obviously subject to everyone else's at this table's ability to get everything else done. But I just wanted

to alert the Court that we may briefly do some cross and some arguing. I don't know it that qualifies as substantial. THE COURT: I have a feeling I know what's coming but

You obviously read our brief. THE COURT: MR. SATHY: I did. It's crystal clear from my perspective.

If we need to address that issue -THE COURT: MR. SATHY: All right. And --

-- first thing Wednesday we should do that

they're in the same boat -MR. SATHY: Absolutely.

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Page 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 THE COURT: -- with respect to the standing argument.

My preliminary view, having spent a lot of quality time with the papers over the weekend, is that there's a lot of people saying the same thing and that I'm very hard pressed to find something that Five Mile, in the context of the PSA objection, and Appaloosa, in the context of the PSA objection, are saying that's not already being said by many other parties. So, everybody has whatever rights they have but I prefer not to go onto a side road and have to get into an extended argument about standing at this point when the points are going to be made anyway. But if Appaloosa or Five Mile

want to do their thing, so to speak, we'll have to address that issue at the time. But I've read the parties' position and I

understand the debtors' position and I guess we'll just wait and see what happens. So -- all right, so with respect to the examiner, Ms. Goldstein, let me bring you back. Can you give me a preview of

what -- of your presentation on the examiner motion? MS. GOLDSTEIN: THE COURT: I mean I --

Are you planning on calling a witness? No. I think we would use the witness'

MS. GOLDSTEIN:

testimony in connection with the PSA. THE COURT: Okay. We view those things as linked.

MS. GOLDSTEIN: THE COURT:

All right.

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Page 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 MS. GOLDSTEIN: THE COURT: MR. SATHY: THE COURT: And otherwise, we'd be oral argument. And the debtors?

Okay.

Yes, same thing. Okay. So not a huge amount of time. But

when you add up all the numbers, it's -- and given that you guys are always off by at least fifty percent, it's going to be a long day on Thursday. Okay. So, I think I have a sense of

where we are and where we are is that we're going to start the cash collateral hearing at 2 o'clock tomorrow, subject to confirmation that anybody who needs to be here can be here. And I'm going to put the burden on the debtors to get the definitive word out on that by some reasonable time today. And then we will also do on -- tomorrow, after cash collateral, we'll do the Five Mile DIP. impediment to that. person. MR. GOTTESMAN: Yes, Your Honor. As debtors' counsel I think there was no

Or that we needed a confirmation from one

has indicated, there are discussions that would resolve our objection. We are awaiting language. But assuming we get that

and it's acceptable -THE COURT: All right. -- that will go away. Look, all of this is subject to I don't want to put the --

MR. GOTTESMAN: THE COURT:

Right.

your ability to work something out.

my desire to start the hearing ahead of my desire for things to

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Page 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 it -THE COURT: takes care of that. Circulate it. All right. Okay. That's great. That morning. sealing. be settled. regards. Now, are the 1st, we are starting at 8:30 in the I think now would be a good time to talk about My view is that -- and I've -- as I've said, I've And I'm hard pressed to identify much of So you'll just keep us posted in real time in that

read a lot of paper.

anything that's properly within the scope of 9018 and that really needs to remain sealed. So, I'd like there to be

somebody to prepare and order or the debtors to prepare an order unsealing everything subject to anybody in this room identifying something specifically that need to remain under seal. I'm not talking about Marriot. I'm just talking about

everything else that's being held under seal. Anybody want to be heard on that point? And I think

we went down this path and I know I now have found myself scratching my head as to why -- why we're down it. So can I

have the debtors submit an appropriate order and that way we can conduct the hearing -- we can conduct the hearings unsealed. stuff. MR. SATHY: Yeah, we'll prepare an order and circulate And we're set up for overflow and all that good

I think the final thing then And I'm not going to say

to deal with today is Marriot.

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Page 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 tomorrow. anything confidential. under seal. There was a settlement that was filed I

There was a limited objection that was field.

also received a declaration of -- I think Mr. Penn, sending some -- attaching some correspondence back and forth. So I guess the first question is -- and there was some confusion about whether it will be heard at 10 because that's when the resentment time was but nothings been properly noticed for now and I don't know if everybody who needs to be in the room is in the room. first question. Wednesday? So I guess the question is -- that's the

Should we set it for sometime tomorrow or I'll do whatever, you know, you

Can we do it now?

tell me is appropriate to do but we have to make sure that the notice is correct. MR. SATHY: THE COURT: MR. SATHY: What my -- I don't know if -I don't think they're here. Marriot is here. We could say -- we could

take it first thing tomorrow right before -THE COURT: MR. SATHY: THE COURT: MR. SATHY: Why don't --- just so that people know -Right. -- that that's going to happen so we're

not surprising people today. THE COURT: MR. SATHY: Right. We could just have the hearing first thing

I think it's a very discreet issue --

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Page 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 it. MR. PENN: open issue. THE COURT: MR. SATHY: THE COURT: MR. SATHY: THE COURT: MR. SATHY: THE COURT: Okay. There's no objection to the actual -I understand. -- settlement itself -Right. -- to be clear. I understand there's one very discreet All right. Then, in that That's correct, Your Honor. It is still an THE COURT: MR. SATHY: THE COURT: MR. SATHY: It is. -- but -And it's still not resolved at this point? I don't think it is. Doesn't sound like

issue that seems to be in play.

case, just trying to think if we're going to start sealed because of that one issue. I think we do. Because I'd like

there to be a statement on the record, a plain English explanation of the settlement because I think it has a bearing on the issue that's in play. MR. SATHY: THE COURT: I agree. I'm going to leave it that cryptic because A suggestion has just

I do think that that's properly sealed.

been made to me that I think is useful and that is to have that particular piece be heard at 1:30 and that way the main

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Page 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 pushed. THE COURT: Okay. That's all I have. Does anybody All right. Honor. hearing, assuming we get the unsealing order done, can just be open and we don't have to worry about that. MR. SATHY: THE COURT: MR. SATHY: That's fine. THE COURT: be the game plan. MR. PENN: Your Honor, I rise. We had filed a motion All right. All right, so that's going to Okay. So -That's fine with us. That's fine, Your That's fine.

that the Court referenced. THE COURT: MR. PENN: Yes. Based on the Court's ruling on the big

sealing motion, I understand you're probably inclined to deny the motion to seal. THE COURT: MR. PENN: present it. THE COURT: All right. You don't have to answer this I would love to deny the motion to seal. So would we. We felt compelled to at least

question but are you filing the motion imminently or are you waiting to see what happens this week? pushing the button. MR. PENN: Pushing -- the button is ready to be Leaving here and

else have anything that they want to raise today?

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Page 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 That's the game plan. my chambers. If there needs to be any changes, call

Otherwise, I will see some subset of you at 1:30

and I will see the larger group at 2 o'clock. All right. Thank you. We're adjourned.

(Proceedings concluded at 11:34 AM)

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Page 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 Date: August 31, 2010 Veritext 200 Old Country Road Suite 580 Mineola, NY 11501 I, Zipporah Geralnik, certify that the foregoing transcript is a true and accurate record of the proceedings. C E R T I F I C A T I O N

Zipporah Geralnik ______________________________________

Digitally signed by Zipporah Geralnik DN: cn=Zipporah Geralnik, c=US Reason: I am the author of this document Date: 2010.08.31 13:51:31 -04'00'

ZIPPORAH GERALNIK AAERT Certified Electronic Transcriber (CET**D-489)

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