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IN THE UNITED STATES BANKRUPTCY COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION In re: COLLINS & AIKMAN CORPORATION,

et al. Debtors. Chapter: 11 Case No. 05-55927 (SWR) Jointly Administered Hon. Steven W. Rhodes

OBJECTION OF K. J. EGLESTON, ET AL., KLEINPETER-FLECK, ET AL., MORRIS AKERMAN, ET AL., JOHN DOES 1-1000, AND JANE DOES 1-1000 TO THE FIRST AMENDED JOINT PLAN OF COLLINS & AIKMAN AND ITS DEBTOR SUBSIDIARIES K. J. Egleston, et al., Kleinpeter-Fleck, et al., Morris Akerman, et al., John Does 1-1000, and Jane Does 1-1000 (Class Action Plaintiffs, as further described below) hereby submit this objection (the "Objection") to the First Amended Joint Plan Of Collins & Aikman And Its Debtor Subsidiaries (the "Plan"), and state the following: BACKGROUND 1. On May 17, 2005, the Debtors1 filed voluntary petitions for relief under

Chapter 11 of the United States Bankruptcy Code. 2. K.J. Egleston is the lead plaintiff on behalf of himself and all other

persons or entities who purchased or otherwise acquired the publicly traded securities of Collins & Aikman (C&A or the Debtors) during the period August 6, 2002 through May 17, 2005, inclusive (respectively the "Class Period" and the putative Class). The Class includes both purchasers of common stock and of bonds, and the definition of the Class includes such purchasers whether they currently hold those or other securities of the Debtor or not. That action, originally filed in the Southern District of New York and subsequently transferred, is currently pending in the Eastern District of Michigan (the "District Court") under the docket Egleston v. Heartland Industrial Partners, L.P., et al,
1

Capitalized terms shall have the meanings ascribed to them in the Disclosure Statement unless otherwise defined herein.

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0555927070507000000000062

2:06-cv-13555-AJT-SDP. This litigation will be referred to hereinafter as the Class Action. 3. The Complaint alleges violations of Sections 20(a) and 10(b) of the

Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder against Heartland Industrial Partners, L.P., and Heartland Industrial Associates, L.L.C. (collectively, the "Heartland Defendants")2 and David A. Stockman, J. Michael Stepp, and Bryce M. Koth (collectively, the "Individual Non-Debtor Defendants");3 the Heartland Defendants and the Individual Non-Debtor Defendants are, collectively, the "Defendants." The Complaint describes both (i) the relationship between the Debtor and the Heartland Defendants and (ii) the Individual Non-Debtor Defendants' positions with and duties and responsibilities to the Debtor and the Heartland Defendants. 4. Debtors are not named as a defendant in the Collins & Aikman Securities The Class Action is

Class Action pursuant to the dictates of the automatic stay. proceeding against the Defendants. OBJECTION 5.

Class Action Plaintiffs object to the Plan because the Plan may potentially

be read as purporting to release various non-Debtors (including Defendants in the Class Action) despite that the requisite unusual circumstances and consideration justifying such non-Debtor releases are not present. As discussed below, the Plan should be clarified in the confirmation order to eliminate any such potential release. In addition, because the Plan appears to compel litigation claimants such as Class Action Plaintiffs to be bound by the Plan injunctions in order to qualify for a distribution as a Class 6 and/or 7 member, it discriminates against such creditors. See 11 to 15, infra. Furthermore, the treatment
2

The Heartland Defendants owned approximately 41% of the Debtor's common stock as of January 1, 2005. The Individual Non-Debtor Defendants include former officers and directors of the Debtor and the Heartland Defendants.

and classification of all claims subject to subordination under 11 U.S.C. 510(b) in the same class is improper. See 32 to 41, infra. Finally, because this appears to be a liquidating plan, the Debtors are not entitled to a discharge. See 42 to 44, infra. I. THE PLAN IS NOT CONFIRMABLE WITHOUT CLARIFICATION A. The Plan Contains Broad and Ambiguous Releases And Injunction Provisions. Pursuant to the Plan, third-party claims against certain non-Debtors are

6.

purportedly released, waived and/or discharged regardless of whether the Holder of a Claim or Equity Interest votes in favor of the Plan, against the Plan or does not vote at all. D.S., V, J, 3: Plan, XII, C. Specifically, the Plan provides: each Releasing Party will be deemed to forever release, waive and discharge all claims . . . causes of action and any other debts . . . suits, damages, actions . . . and liabilities . . . whether known or unknown foreseen or unforeseen, suspected or unsuspected, liquidated or unliquidated, contingent or fixed, currently existing or hereafter arising that are based in whole or in part on any act, omission, transaction or other occurrence taking place on or prior to the Effective Date in any way relating to a Debtor . . . that such Person has, had or may have against any Third Party Releasee. Plan, Art XII. C, at 41-42. The Plan further states that entry of the Confirmation Order: will constitute the Bankruptcy Court's finding that such release [the release described in 13 supra] is (1) in exchange for good and valuable consideration provided by the Debtor Releasees and the Releasing Parties, representing good faith settlement and compromise of the claims released herein; (2) in the best interests of the Debtors and all Holders of Claims; (3) fair, equitable and reasonable; (4) approved after due notice and opportunity for hearing; and (5) a bar to any of the Releasing Parties asserting any claim released by this Article 3

XII. C against any of the Third Party Releasees or their respective property. Plan, Art. XII. C, at 42. 7. In order to fully understand the breadth and the impact of the Third Party

Releases that the Plan attempts to provide, a party in interest must navigate through several intricate definitions in Article I of the Plan, including the following: (a) "Releasing Parties" includes: each Holder of a Claim that votes in favor of the Plan and . . . each Person that has held, holds or may hold a Claim or at any time was a Holder of a Claim of any of the Debtors and that does not vote on the Plan or votes against the Plan. Plan, Art. I. A. 119, at 11. (b) Third Party Releasees are "the Debtors and the Debtor Releasees." Plan, Art. I. A. 147, at 13. (c) Debtor Releasees includes: (a) all officers and directors and employees and their respective subsidiaries employed by the Debtors at any time on or after November 1, 2006, (b) all attorneys, financial advisors, accountants, investment bankers, investment advisors, actuaries, professionals, agents, affiliates and representatives of the Debtors and their subsidiaries and (c) the Releasing Parties, their respective predecessors and successors in interest, and all of their respective current and former members, officers, directors, employees, partners, attorneys, financial advisors, accountants, investment bankers, investment advisors, actuaries, professionals, agents, affiliates and representatives. Plan, Art. I. A. 35, at 3-4. 4

8.

Though the Class Action Plaintiffs interpretation of these provisions is

that it excludes current or potential parties against whom the Class Action Plaintiffs have claims, the provisions are highly technical, and could potentially be interpreted to provide releases to the Defendants (or potential additional defendants) in the Class Action. 9. Further, although the Non-Released Parties (appearing on Exhibit A to the

Plan) are purportedly not being released from third-party claims, the Exhibit is ambiguous.4 10. Moreover, in addition to the broad and ambiguous releases under the Plan,

the Plan permanently enjoins any Holder of a Claim or Interest that accepts any distribution under the Plan or whose claim is released under the Plan from continuing or commencing any action, in any manner, in any place that does not comply with or is inconsistent with the provisions of the Plan. Plan, XII, E. This again is, at best, very broad and ambiguous, and in the absence of unusual circumstances and adequate consideration, is not permissible. 11. The Plan further provides that if a creditor accepts a distribution under the

Plan, he or she is deemed to have consented to these Plan injunctions. Plan, Art. XII. E. 3, at 43. This provision is discriminatory with respect to holders of claims in more than one Class under the Plan or holders of claims against non-Debtors, such as the members of the Class Actions putative Class. Holders of claims in more than one Plan Class and claims against non-Debtors may be forced to release claims for which they receive no

Debtors filed Exhibit A and an amended Exhibit A on January 16, 2007, ultimately consisting of more than 2000 pages of parties to the Retained Actions. This apparently is a list of parties against whom the Debtors have certain causes of action as identified on the Exhibit. Because the list of causes of action does not appear to include those causes of action belonging to third-parties, such third-party claims are not definitively preserved and may be released.

consideration under the Plan, while members of that same Plan Class without such claims give up nothing in order to participate in a distribution. 12. Members of the putative Class include current and former holders of the

Senior Notes and the Senior Subordinated Notes. As some putative Class members hold or held different debt instruments, they may fall into a class under the Plan that receives a distribution and therefore would be forced to release claims in the Class Action in order to benefit from the Plan distribution. 13. Holders of Senior Notes are in Plan Class 6 and holders of Senior

Subordinated Notes are in Plan Class 7.5 Those members of the putative Class who no longer hold all or some of their Senior Notes or Senior Subordinated Notes have litigation claims subject to subordination under 11 U.S.C. 510(b) for damages arising from the purchase or sale of a security of the Debtors and are in Plan Class 9.6 14. Pursuant to Art. XII. E. 3 of the Plan, the holder of Claims in different

Plan Classes who receives a distribution as a member of one Plan Class, but not another Plan Class, is deemed to have consented to the wide-ranging injunctions in Article XII. E of the Plan and is effectively enjoined from taking any action with respect to not only the Claim for which he or she received the distribution, but also for the Claim for which he or she did not receive anything and to pursue those Claims against non-Debtors. The injunctive provisions affect creditors whether they vote in favor of or against the Plan or do not even vote all. To impose such extraordinary injunctive relief, especially as against a creditor who receives nothing under the Plan for his or her claim against non-Debtors is patently discriminatory and should not be allowed.

Based upon the current distribution allocation, members of Plan Class 6 will receive a distribution from the Recovery Trust, but members of Plan Class 7 may not. See 32 to 41, infra, for the objection to the treatment of such subordinated claims.

15.

The Plan injunction could be read to release non-Debtors from any and all

liabilities for claims that may be asserted by Class Action Plaintiffs or others, despite the fact that they are receiving nothing for such release,7 and if so, it discriminates against those holders of claims in multiple Plan Classes, who also stand to benefit from the Class Action but for the potential impact of the Plan injunction. 16. While much of the case law addresses non-consensual releases of claims

against a non-debtor, the same law is applicable to injunctions, because they essentially provide a release of such claims by prohibiting an action from going forward. 17. Class Action Plaintiffs doubt that Debtors intended to attempt to effectuate

releases of the non-Debtor former officers and directors who are the defendants in the suit brought by the Class Action Plaintiffs. In the event that no such release was intended, any ambiguity can be eliminated by the addition of the clarifying language to the confirmation order as suggested in paragraph 31 below. However, in the event that such a release was indeed intended, Class Action Plaintiffs contend that such a release is impermissible, as discussed in depth below. B. Releases Or Injunctions Protecting Non-Debtors Are Impermissible Under The Circumstances Of This Case. 18. Although the Sixth Circuit has held that 11 U.S.C. 524(e) may not

prohibit the release of a non-debtor, it follows the majority rule that that non-debtor releases may only be permitted under certain unusual circumstances. See Class 5 Nevada Claimants v. Dow Corning Corporation (In re Dow Corning Corp.), 280 F.3d 648 (6th Cir. 2002), cert. denied, 537 U.S. 816, 123 S. Ct. 85, 154 L. Ed.2d 21 (2002). In Dow Corning, the court held that section 524(e) does not expressly prohibit a bankruptcy court
7

Although a creditor may receive a distribution on account of its Allowed Class 6 and/or 7 Claims, that is not sufficient consideration as contemplated by the line of cases set forth herein, infra. There is no evidence that any consideration is being provided to claimants by the parties being released.

from issuing third-party injunctions that protect non-debtors and therefore, enjoining claims against nondebtors in order to uphold a reorganization plan is consistent with the bankruptcy courts primary function. Id. at 656-657. Nevertheless, the Sixth Circuit noted that enjoining third parties from suing non-debtors is a dramatic measure which must be used cautiously and is only appropriate in unusual circumstances. Id. at 658. And in order to determine whether unusual circumstances exist, the court held that when seven factors are present, the bankruptcy court may issue such an injunction.8 See also In re National Staffing Services, LLC, 338 B.R. 35, 37 (Bankr. N. D. Ohio 2005) (citing Dow Corning, at 658, "the Sixth Circuit has therefore held that before such an injunction may be imposed, 'unusual circumstances' must exist"). 19. Here, at least five of the first six factors weigh heavily against allowing

release of non-debtors. The non-debtors have contributed nothing to the reorganization (factor 2), and the injunction prohibiting suits against the non-debtors is not essential to the reorganization (factor 3). The Class Action Plaintiffs, who are not asserting claims against the estate, are not part of any impacted class which might vote overwhelmingly for this reorganization (factor 4). The Plan does not provide for any recovery to the Class Action Plaintiffs (factor 5). Finally, the Plan, if the release is not removed from it, does not provide an opportunity for non-settling claimants to recover in full (factor 6).

The seven Dow Corning factors include: (1) There is an identity of interests between the debtor and the third party, usually an indemnity relationship, such that a suit against a non-debtor is, in essence, a suit against the debtor or will deplete the assets of the estate; (2) The non-debtor has contributed substantial assets to the reorganization; (3) The injunction is essential to reorganization, namely, the reorganization hinges on the debtor being free from indirect suits against parties who would have indemnity or contribution claims against the debtor; (4) The impacted class, or classes, has overwhelmingly voted to accept the plan; (5) The plan provides a mechanism to pay for all, or substantially all, of the class or classes affected by the injunction; (6) The plan provides an opportunity for those claimants who choose not to settle to recover in full and; (7) The bankruptcy court made a record of specific factual findings that support its conclusions. Id. at 658.

20.

Further, the Plan release and injunction are nonconsensual and are not

supported by any consideration. 21. Cases from other jurisdictions also support Class Action Plaintiffs

position here. The underlying facts here do not even remotely resemble the factual underpinnings for the releases allowed in SEC v. The Drexel Burnham Lambert Group, Inc. (In re The Drexel Burnham Lambert Group, Inc.), 960 F.2d 285 (2d Cir. 1992); cert. dismissed, 506 U.S. 1088, 122 L. Ed.2d 497, 1133 S.Ct. 1070 (1993); Abel v. Shugrue (In re Ionosphere Clubs, Inc.), 184 B.R. 648 (S.D.N.Y. 1995); and Menard-Sanford v. Mabey (In re A.H. Robins Co., Inc.), 880 F.2d 694 (4th Cir. 1989), cert. denied, 493 U.S. 959, 110 S.Ct. 376, 107 L.Ed.2d 362 (1989). The Debtors herein fail to provide in either the Plan or Disclosure Statement any factual basis to establish the required unusual circumstances which justify confirmation of a plan containing such extraordinary relief. 22. In In re St. Johnsbury Trucking Co., Inc., 185 B.R. 687 (S.D.N.Y. 1995),

the federal government sought a stay of the order confirming the debtors plan because the plan provided for the release of certain non-debtors from claims under the federal environmental and tax statutes. The district court noted that the debtor failed to conclusively establish the propriety of . . . the releases. 185 B.R. at 689. The court recognized the requirement that clear and discrete circumstances be established to justify non-debtor releases. 23. In The LTV Corp. v. The Aetna Casualty and Surety Co. (In re

Chateauguay Corp.), 167 B.R. 776 (S.D.N.Y. 1994), the court noted that the broad power provided to the Bankruptcy Court by 11 U.S.C. 105(a) does not give unfettered discretion to discharge a non-debtor from liability. Id. at 780. In addition to Drexel, the court considered MacArthur v. Johns-Manville Corp., 837 F.2d 89, 93 (2d Cir. 1988), 9

cert. denied, 488 U.S. 868, 109 S.Ct. 176, 102 L.Ed.2d 145 (1988) and A.H. Robins, supra, where the debtors provided clear factual support and unusual circumstances existed so as to allow the respective courts to conclude that the releases were essential to the reorganization because the released parties were making substantial contributions to the reorganizations. 24. The Third Circuit in Gillman v. Continental Airlines (In re Continental

Airlines), 203 F.3d 203 (3d. Cir. 2000), provides a thorough analysis of third party releases, supporting the rationale of those cases which have permitted third parties releases and injunctions where the parties that were enjoined (creditors) were provided with some meaningful consideration for the loss of their rights against non-debtors. Continental, at 212. Drexel, supra, at 293; Kane v. Johns-Manville Corp. (In re JohnsManville Corp.), 843 F.2d 636, 640, 649 (2d Cir. 1988); A.H. Robins, supra, 880 F.2d at 702. The consideration was provided through substantial contributions paid by the nondebtor parties in exchange for their releases. Continental at 213. 25. To sum up, neither the Plan nor the Disclosure Statement demonstrates

that the potential releases satisfy any of the Dow Corning factors. Indeed, no unusual circumstances exist here. 26. Confirmation of a plan requires that the plan satisfy all of the elements of

11 U.S.C. 1129(a). The Plan shall comply with the applicable provisions of [Title 11 of the United States Codes; i.e., the Bankruptcy Code]. 11 U.S.C. 1129(a)(1). 27. Here, the Plan does not comply with the applicable provisions of Title 11,

specifically 11 U.S.C. 524(e) and 1123(a)(4). 28. 11 U.S.C. 524(e) provides that:

10

the discharge of a debt of a debtor does not affect the liability of any other entity on, or the property of any other entity for such debt. 29. If it is the Debtors intention to enjoin suits against non-Debtor third

parties without demonstrating unusual circumstances, then the Plan is unconfirmable on its face. This principle applies here. The Plan-or at least those portions purporting to enjoin claims against non-Debtors without providing adequate justification and consideration-do not satisfy the Bankruptcy Codes confirmation requirements. 30. The Plan, in effect, creates a trap for the unwary, potentially imposing an

involuntary release of claims in favor of numerous non-debtor insiders and agents with no corresponding benefit or consideration to the affected parties. Hence, any ambiguity that creates the impression that such a release is being provided must be eliminated. 31. Class Action Plaintiffs suggest that a simple provision be added to the

confirmation order: Confirmation of the Debtors Plan does not affect the prosecution by the Class Action Plantiffs or their claims against any parties other than the Debtors bankruptcy estates. II. The Classification And Treatment Of All Subordinated Securities Claims In One Class Are Improper. 32. Under the Plan, Class 9 consists of all Subordinated Securities Claims,

Plan, Art. III. C. 7, which are defined as Claims described in 11 U.S.C. 510(b). Plan, Art. I. A. 143. 33. 11 U.S.C. 510(b) provides that: a claim . . . for damages arising from the purchase or sale of [a security of the debtor or an affiliate of the debtor] . . . shall be subordinated to all claims or interests that are senior to or equal the claim or interest represented by such security, except that if such security is common stock, such claim has the same priority as common stock. (Emphasis added.) 11

34. Classification of claims is governed by 11 U.S.C. 1122(a), which provides that only substantially similar claims may be placed in the same class under a plan. 35. Although classification of claims may be in the discretion of the plan proponent, that discretion is not unlimited. There must be some limitation on the debtors power to classify creditorsif the classification scheme violates basic priority rights, the plan cannot be confirmed. In re 500 Fifth Avenue Associates, 148 B.R. 1010, 1018 (Bankr. S.D.N.Y. 1993), quoting In re Bryson Properties, XVIII, 961 F.2d 496, 502 (4th Cir. 1992), quoting In re Holywell Corp., 913 F.12d 873, 880 (11th Cir. 1990). 36. The Class Action Plaintiffs submit that including all Subordinated

Securities Claims in the same class (Class 9) is improper and violates the priorities established under the Bankruptcy Code and relevant case law. 37. The language of 11 U.S.C. 510(b) is clear: claims subject to 510(b)

shall be subordinated to all claims or interests that are senior to or equal the claim or interest represented [by the subject security]. Classification of a claim subject to

subordination under section 510(b) is dictated by the treatment of the underlying security upon which the claim is based. 38. With respect to equity holders, the legislative intent of the Bankruptcy

Code is to treat the claims of defrauded stock purchasers the same as the claims of the current stockholders. If the security is an equity security, the damages or rescission claim is subordinated to all creditors and treated the same as the equity security itself. In re Computer Devices, Inc., 51 B.R. 471, 479 (Bankr. D.Mass. 1985), citing Notes of the Committee on the Judiciary, Senate Report No. 95-989, Bankruptcy Code, Rules and Forms, at 118 (West 1983); see 11 U.S.C. 510(b) (if the security on which the claim is based is common stock, then the claim has the same priority as common stock). 12

39.

However, with respect to a 510(b) subordinated claim whose underlying

security is a debt instrument, the damage or rescission claim will be granted the status of a general unsecured claim, Committee on the Judiciary, id.; Computer Devices, 51 B.R. at 479. And, where the claim subordinated under 510(b) arises from a security whose current holders have claims with priority over general unsecured claims, the 510(b) claim has a similar priority as it is subordinated only to claims that are senior to or equal the claim of the underlying security. In other words, a claim that is subordinated under 510(b) is subordinated only to the claims of holders of the security on which the subordinated claim is based or to claims greater than or equal in priority to that claim. Hence, the 510(b) claims of former holder of the Senior Notes and the Senior Subordinated Notes can be subordinated only to the claims of current holders of the Senior Notes (Class 6) and the Senior Subordinated Notes (Class 7), respectively. Because it appears from the Plan that holders of Class 6 Claims have a priority over general unsecured claims (as evidenced by their treatment in the proposed allocation of the Litigation Recovery Interests), then the corresponding 510(b) claims of the former holders should also have priority above general unsecured claims. 40. Although a note holder may no longer hold the C&A Notes, he or she may

nonetheless have been damaged and therefore holds a claim against the Debtors and should be compensated. There is no basis to disenfranchise a significant group of former C&A Note holders, who were defrauded by the Debtors and others, from participation in any distribution under the Plan. 41. In order to comply with 11 U.S.C. 510(b) and relevant case law, those

C&A Note claims subject to subordination under 11 U.S.C. 510(b) must be treated and classified separately from other Subordinated Securities Claims under the Plan. At the very least, whether and to what extent these particular securities litigation claimants are entitled to a distribution under the Plan should not be determined until all of the relevant issues are placed before the Court in a separate proceeding. 13

III.

The Debtors Are Not Entitled To A Discharge. 42. Implementation of the Plan (Plan Art. IV. A) will be accomplished by the

sale of all or substantially all of the Debtors assets through the Remaining Sales Transactions, which are defined as the sale[s] of all or substantially all of the Debtors assets prior to and subsequent to confirmation of the Plan. See Plan, Art. I. A. 121. These transactions result in and constitute a liquidation of all of the Debtors assets through a series of orchestrated sales. 43. Pursuant to 11 U.S.C. 1141(d)(3)(A), a debtor shall not be discharged

from its debts if the plan provides for the liquidation of all or substantially all of the property of the estate. 44. Clearly, although not expressly couched as such, the Plan is a liquidating

plan and the Debtors may not be discharged. Assuming the Debtors clear the hurdles, through modification of the Plan, of all of the other objections set forth herein, any Order confirming the Plan must provide that the Debtors are not entitled to a discharge under 11 U.S.C. 1141. CONCLUSION

45.

Based on the foregoing, Class Action Plaintiffs respectfully request that an

order be entered (i) denying confirmation of the Plan, and (ii) granting such other and further relief as the Court deems just and proper. Dated: May 7, 2007 Respectfully submitted, ALLARD & FISH, P.C. /S/Ralph R. McKee 2600 Buhl Building 535 Griswold Avenue Detroit, Michigan 48226 Telephone: (313) 961-6141 Facsimile: (313) 961-6142 Email: rmckee@allardfishpc.com P39484 14

Co-Counsel for Class Action Plaintiff WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP Thomas H. Burt, Esq. Paulette S. Fox, Esq. 270 Madison Avenue New York, New York 10016 Telephone: (212) 545-4600 Facsimile: (212) 545-4653
U:\31\043\pld\Objection to Plan.doc

15

UNITED STATES BANKRUPTCY COURT FOR THE EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION In re: COLLINS & AIKMAN CORPORATION, et al. Debtors. _________________________________________________/ Case No. 05-55927-SWR Chapter 11 Jointly Administered Honorable Steven W. Rhodes

CERTIFICATE OF SERVICE I, Regina Drouillard, hereby certify that on May 7, 2007, I electronically filed the following: Objection of K. J. Egleston, et al., Kleinpeter-Fleck, et al., John Does 1-1000, and Jane Does 1-1000 to the First Amended Joint Plan of Collins & Aikman and its Debtor Subsidiaries.

with the Clerk of the Court using the ECF and I hereby certify that the Courts ECF system has served all registered users. I have either electronically or via facsimile served the following non-ECF participants: Kirkland & Ellis, LLP Richard M. Cieri, Esq. Citigroup Center 153 East 53rd Street New York, NY 10022 rcieri@kirkland.com Simpson Thacher & Bartlett, LLP Peter V. Pantaleo, Esq. Alice B. Eaton, Esq. 425 Lexington Ave. New York, NY 10017 (212) 455-2502 (Facsimile) Kirkland & Ellis, LLP Attn: David L. Eaton, Esq. 200 East Randolph Drive Chicago, IL 60601 deaton@kirkland.com Akin, Gump, Strauss, Hauer & Feld L.L.P. Michael S. Stamer, Esq. 590 Madison Avenue New York, NY 10022 mstamer@akingump.com

Wachtell, Lipton, Rosen & Katz Harold S. Novikoff, Esq. Gregory E. Pessin, Esq. 51 West 52nd Street New York, NY 10019 hsnovikoff@wlrk.com gepessin@wlrk.com

ALLARD & FISH, P.C.

/S/Regina Drouillard 535 Griswold 2600 Buhl Building Detroit MI 48226 (313) 961-6141

Dated: May 7, 2007


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