Fleetwood Enterprises, Inc.

OCR transcription for search; preserved printed pages are authoritative

om wo 6 HN HD wo FF WY LY

mW NM je OS YS UY OY ON RB RP SP Re SEO ll LU
oo ~~ TK A BSB BH YB SF SG BO we HN NO US USL UL

AUTHENTIC
U.S. GOVERN
INFORMATI

Case 6:09-bk-14254-M] —_Do O Entered 04/08/10 17:04:48 Deg

MainfDHcibneh ge 1 of 38
ENTERED
oLER Dery ORNIA APR 98 2010
CENTRALD Deputy Clerk
Ss comin

UNITED STATES BANKRUPTCY COURT
CENTRAL DISTRICT OF CALIFORNIA
RIVERSIDE DIVISION
In re: Case No. 09-14254-M7

Fleetwood Enterprises, Inc.,
et al.,

Chapter 11

[Jointly Administered]
Debtors.

eee ee

OPINION ON MOTION FOR
TURNOVER OF COMMITMENT FEE

Date: December 16, 2009

The Official Committee of Creditors Holding Unsecured
Claims of Fleetwood Enterprises, Inc. and its affiliated debtors
and debtors-in-possession filed a motion seeking turnover under
§ 542! of a $2.4 million commitment fee that debtors paid to
Bank of America, National Association (“BofA”) in connection
with a court-approved postpetition debtor-in-possession (“DIP”)
interim financing order.

For the reasons set forth below, the court DENIES the

Committee’s motion.

1 Unless otherwise indicated, all chapter, section and rule
references below are to the Bankruptcy Code, 11 U.S.C. §§ 101-
1532, and to the Federal Rules of Bankruptcy Procedure, Rules
1001-9037.

-1-

ED
ENT
IN
PO

Cc

ia 2 ee — - e

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Case 6:09-bk-14254-MJ Doc 2035 _ Filed 04/08/10 Entered 04/08/10 17:04:48 Des
Main Document Page 2 of 38

I. FACTS AND PROCEDURAL BACKGROUND

Debtors filed their voluntary chapter 11 petitions on March
10, 2009 and continue to operate their businesses as debtors-in-
possession under §§ 1107 and 1108. When debtors sought
protection under chapter 11, their financial picture was bleak.
As a consequence, debtors determined the best option for
reorganization was to sell various divisions. (Decl. of Andrew
M. Griffiths in Support of First Day Pleadings 47 53, 57 Dkt.
No. 10.) In the meantime, they needed funds to continue
operations and maintain the value of their businesses.

By way of first day motions filed on March 12, 2009,
debtors sought the interim use of cash collateral subject to the
security of the lenders represented in court by BofA. After a
hearing on March 13, 2009, an interim order for use of cash
collateral was entered by stipulation on that date, scheduling a
final hearing on March 26, 2009. The use of cash collateral
under the interim order expired on March 29, 2009. In the
meantime, as represented by debtors to the court on March 13,
2009, debtors sought postpetition financing with BofA and any
other viable lenders.

Ultimately, BofA was the only lender willing to lend to

debtors on terms which were economically viable.* BofA agreed

? BofA was acting as the administrative agent for a
syndicate of lenders.

-2-

DOD fo YN HD tH Bp We Be

NO wo Ww BD WN NO NO KO KR Re RR OR Oe eee RR le
So SI DH Ww fF WwW YO | S&F BO 6B SS DO CA FF WD NH SK GS

Case 6:09-bk-14254-MJ_ Doc 2035 _ Filed 04/08/10 Entered 04/08/10 17:04:48 Des
Main Document Page 3 of 38

to lend debtors an amount not to exceed $80 million, including a
$65 million sub-limit for existing letters of credit; to do so,
BofA required the payment of numerous fees and expenses under
the financing agreement, including the $2.4 million commitment
fee.

Instead of seeking final approval of use of cash collateral
as scheduled on March 26, 2009, on March 24, 2009 debtors filed
an Emergency Motion for Entry of Interim and Final Orders (1)
Authorizing Debtors to Obtain Postpetition Secured Financing,

(2) Authorizing the Use of Cash Collateral, (3) Granting Liens
and SuperPriority Claims, (4) Modifying the Automatic Stay and
(5) Setting a Final Hearing. As part of the motion, debtors
requested the court to enter an interim order authorizing it to
borrow from BofA as a postpetition lender.

The motion and supporting evidence showed that debtors had
an urgent need for postpetition financing in order to continue
their operations and preserve the value of their businesses.
Debtors proposed to obtain the financing by providing
superpriority claims, security interests and liens to BofA under
§ 364(c) (1), (2), and (3) and § 364(d). Due to debtors’
immediate need for access to cash collateral and other funds,
the court held expedited hearings on March 26, 27 and 31, 2009.

At the March 26, 2009 hearing, numerous parties objected

co Oo eo SY THN OS UY UN

1]
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Case 6:09-bk-14254-MJ_ Doc 2035 Filed 04/08/10 Entered 04/08/10 17:04:48 Deg
Main Document Page 4 of 38

orally to the proposed financing, including the Committee.* The
Committee alleged, among other things, that debtors did not need
to borrow new money until sometime in April. According to the
Committee, the urgent nature of the motion was due to covenants
in the existing cash collateral order — debtors would be in

default if the financing was not approved on an interim basis.

(Tr. 27:1-10, March 26, 2009.) The Committee further objected
to the commitment fee, referring to it as “outrageous”. (Id.
28:22.) Due to these issues and others, and the abundance of

pleadings and documents filed within a very short time, the
Committee suggested the interim financing order provide a
blanket reservation of rights with respect to the issues that
were raised. (Id. at 17-20.) BofA refused the request.

At the court’s urging, further negotiations regarding a
broad reservation of rights ensued, but the parties were unable
to resolve all of the issues. The parties appeared before the
court for a second hearing on March 27, 2009. BofA’s counsel
confirmed that the commitment fee, along with certain other
provisions pertaining to new security if advances were made, was
a non-negotiable point and that the lenders required payment of
the fee prior to any lending. BofA explained that the lenders’

view was that they were making the commitment now, they were

> Deutsche Bank Trust Company Americas and Whippoorwill
Associates filed written objections which raised issues not
pertinent to this motion.

oOo 628 “SYN DR A BP WD WY

NO bY b WV NV NH KN VY Re RR RB Re Re OO Eee OO SO le
oOo YD DH th BB WH HB KH OD Oo CO aS DH wT RP YY BY SS SS

Case 6:09-bk-14254-MJ Doc 2035 Filed 04/08/10 Entered 04/08/10 17:04:48 Deg
Main Document Page 5 of 38

agreeing that their capital would be set aside for DIP financing
loans and as a result they should be entitled to the commitment
fee when the commitment was actually made (as opposed to waiting
until the final order). (Tr. 7:19-25, March 27, 2009.)

Further, BofA was unwilling to move forward without a full
comprehension of its rights and obligations during the interim
period.

The Committee again objected to the fee, commenting that it
was “obscenely high" for what it perceived to be a $20 million
credit facility. (Id. 13:17.) Debtors reiterated that the
“market was tough” and the fee lowered their interest rate.

(Id. 24:15-17.) Given the reduced interest rate and the amount
of the loan, the court observed that the amount of the
commitment fee was not necessarily unreasonable. (Id. 35:16;
36:5-12.)

On March 31, 2009 the court held a third hearing at which
the Committee again raised its concern about the fee.* (Tr.
5:9-22, March 31, 2009.) After hearing oral argument, the court
approved the heavily negotiated terms of the DIP loan and
entered an interim order on April 1, 2009. The interim order
scheduled a final hearing for April 21, 2009, which was

rescheduled for April 30, 2009 at debtors’ request.

“A hastily negotiated interim agreement extended debtors’

use of cash collateral to March 31, 2009.

-S-

co bo Se SI BH AH FP BY YS

NM BN NP NK YD NR NR Ree Be SE ES OO
oOo WN KH OA F&F Be NS UD OUlUlUlmwOmlmlUlUGlUDN UCR ODN

Case 6:09-bk-14254-MJ Doc 2035 Filed 04/08/10 Entered 04/08/10 17:04:48 Deg
Main Document Page 6 of 38

On April 1, 2009 the commitment fee was charged against
debtors’ DIP loan account.* (Decl. of Todd R. Eggertsen,
November 18, 2009, 1:24-25.) The Committee did not appeal the
interim order.®

Less than twenty-four hours before the final hearing,
debtors informed BofA that they were withdrawing their request
to proceed with the DIP loans. Debtors, realizing that they
could survive on the use of cash collateral alone, filed a new
motion for use of cash collateral and thereafter negotiated a
series of interim agreements to continue using cash collateral,
which culminated in a Final Order Extending Authorization to Use
Cash Collateral entered on September 10, 2009, extending the use
to January 31, 2010.’

On November 2, 2009 the Committee filed its Motion for

Turnover of Property of the Estate Pursuant to 11 U.S.C. § 542.°

> The Committee asserts that although the underlying credit
agreement authorized BofA to charge the commitment fee to
debtors’ loan account, debtors instead paid the fee from their
operating cash. (Notice of Motion and Motion for Turnover of
Property of the Estate Pursuant to 11 U.S.C. § 542 filed November
2, 2009, 4:14-16). The Committee contends that the operating
cash constituted property of debtors’ estate. (Id.). Given the
court's conclusion, it is unnecessary to resolve this factual
inconsistency.

6 Whether the order was “final” and therefore automatically
appealable is discussed below.

7 This order has since been extended by agreement.

® The Committee obtained standing to file the turnover
motion by a court-approved stipulation with debtors entered on

-6-

Cc

vA FF WS bw

Oo FF “IP A

10
1]
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Case 6:09-bk-14254-MJ_ Doc 2035 Filed 04/08/10 Entered 04/08/10 17:04:48 Deg
Main Document Page 7 of 38

After hearing oral argument on December 16, 2009, the court took

the matter under submission.

II. JURISDICTION
This court has jurisdiction to determine this matter
pursuant to 28 U.S.C. § § 1334 and 157(b) (1) and General Order
No. 329 of the United States District Court for the Central
District of California. This is a core proceeding under
28 U.S.C. § 157(b) (2) (A) and (E).
III. ISSUES
A. Whether the commitment fee constitutes an
administrative expense claim under § 503(b) (1) (A) subject to the
requirements that it directly and substantially benefit debtors’
estates;
B. Whether the commitment fee is entitled to protection
under the safe harbor of § 364(e6); and
on Whether modification of the interim order is
appropriate under either Fed. R. Civ. P. 60(b) (6), incorporated
by Rule 9024 or § 105(a).
Iv. DISCUSSION
Summarized, the Committee’s arguments are: (1) turnover is

appropriate because the commitment fee did not benefit debtors’

August 10, 2009. The court and parties agreed that the Committee
would seek turnover of the commitment fee by motion and,
therefore, no adversary proceeding was necessary.

-7F-

-

Oo fo ~s KH Tr

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Case 6:09-bk-14254-MJ Doc 2035 Filed 04/08/10 Entered 04/08/10 17:04:48 Deg
Main Document Page 8 of 38

estates or otherwise meet the requirements as an actual or

necessary expense under § 503(b) (1) (A); (2) the court has the

inherent equitable power to reexamine its prior ruling because
the interim order is interlocutory and the equities weigh in
favor of the unsecured creditors; or, alternatively, (3) if the

interim order is a final order, Fed. R. Civ. P. 60(b) (6)

provides a basis for this court to grant the Committee relief.

On the other hand, BofA asserts that turnover of the fee is
precluded by the explicit language of the interim order and
§ 364(e). BofA contends it is too late for any relief regarding
the fee since the Committee failed to appeal this court’s
interim order within ten days from the entry of the order.
Finally, BofA argues that even if the court has discretion to
reconsider the interim order with respect to the commitment fee
provision, the evidence shows that debtors received a direct and
substantial benefit by having access to the funds during the
interim period.

The resolution of this matter turns on the statutory
construction of § 364(c) (1) and (e) and the unambiguous terms of
the interim order.

A. The Plain Language Of § 364({c)(1} Does Not Incorporate The
Requirements for Allowance of Administrative Expenses
Under § 503({b) (1) (A)

Initially, the court observes that the issue whether BofA

could establish an administrative expense priority claim for the

-8-

Rh wi Nh

Oo co “I HW A

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Case 6:09-bk-14254-MJ Doc 2035 Filed 04/08/10 Entered 04/08/10 17:04:48 Des
Main Document Page 9 of 38

commitment fee under § 503 (b) (1) (A) was not raised or addressed
during the three March 2009 hearings which culminated in the
interim order. Now, after the fact, the Committee argues that
the fee did not benefit debtors’ estates or otherwise meet the
requirements as an actual or necessary expense under
§ 503 (b) (1) (A).

The interim order approving the financing agreement between
BofA and debtors specifically provides that the fees incurred in
connection with the DIP loan, including the commitment fee,
would be paid on a superpriority basis under § 364(c)({1). There
is no reference to §503(b) in the order.

Paragraph 5 of the interim financing order provides in
relevant part:

[A]ny and all fees paid or required to be paid in

connection with the DIP Loan Documents .. . are

hereby authorized and shall be paid . . . each with

the same priority as the Postpetition Obligations and

without further notice to or order of the Court

Paragraph 9(c), entitled “Superpriority Claims” provides in
relevant part:

All Postpetition Obligations, subject only to the

Carve-Out, hereby constitute under Section 364 (c) (1)

allowed superpriority administrative expense
claims ... . (emphasis added).

The Bankruptcy Code does not use the term “superpriority”,
but it is generally understood as a short-hand term “to

articulate the priority that § 364(c)(1) confers over

-g-

2a © © 4 DBD Ww FF WD NH

NM 6B BH WB KN ND BND OR ORDO ae
foe nS >) © oS Ps Loo a o> ©) © i | he) ns 2 i

Case 6:09-bk-14254-MJ Doc 2035 Filed 04/08/10 Entered 04/08/10 17:04:48 Des
Main Document Page 10 of 38

administrative expense claims.” Matter of Mayco Plastics, Inc.,

379 B.R. 691, 701-02 (Bankr. E.D. Mich. 2008). In fact, not all
parties use the same terms in this area of the law. The court’s
cursory examination of case law in this area reveals that courts
and practitioners use terms to describe § 364(c) (1) claims as
those with “super-super priority”, “superpriocrity status” or
“administrative priority claims” or, like debtors did here,
“superpriority administrative expense claims.”

However, this court is not bound by the terminology of the
parties and must follow the plain language of the statute.

United States v. Ron Pair Enters., Inc., 489 U.S. 235, 241-42

(1989) (if the words of the statute are clear, the court must
apply the statute by its terms unless to do so would lead to
absurd results). Besides the plain language, the court also
examines “the specific context in which that language is used,
and the broader context of the statute as a whole.” Hough v.

Fry (In re Hough}, 239 B.R. 412, 414 (9th Cir. BAP 1999)

(citation omitted).
Section 364 provides in relevant part:

(ob) The court, after notice and a hearing, may
authorize the trustee to obtain unsecured credit or to
incur unsecured debt... , allowable under section
503 (b) (1) of this title as an administrative expense.

(c) If the trustee is unable to obtain unsecured
credit allowable under § 503(b) (1) of this title as an
administrative expense, the court, after notice and a
hearing, may authorize the obtaining of credit or the
incurring of debt —

-10-

wv & WwW

oOo fO& YA

10
1]
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Case 6:09-bk-14254-MJ_ Doc 2035 Filed 04/08/10 Entered 04/08/10 17:04:48 Deg
Main Document Page 11 of 38

(1) with priority over any or all administrative
expenses of the kind specified in section 503(b) or 507 (b)
of this title;

The language of § 364(c) (1) is clear enough — a debtor’s
authority to obtain unsecured credit under that subsection is
expressly premised on its inability to obtain credit under
§ 503(b) (1}, i.e. as an allowable administrative expense under
§ 364(b). There is no other legislative requirement under the
statute.

Here, debtors were unable to obtain unsecured credit from
BofA by giving it an allowable administrative expense under
§ 503(b) (1). In fact, nowhere does their motion or the interim
order mention § 364(b) or obtaining unsecured administrative
priority debt. Rather, BofA required the greater protection
under § 364(c) (1) of a priority claim “over any or all
administrative expenses of the kind specified in section 503 (b)
or 507(b) of this title.”

Notably, the plain language of the statute does not say
that to establish priority “over any or all administrative
expenses” under § 364(c) (1), lenders must also independently
prove their claim qualifies as an allowable administrative

expense under § 503 (b) (1) (A). f. Mark IV Props., Ince. v. Club

Dev. & Mgmt. Corp. (In re Club Dev. & Mgmt. Corp.), 27 B.R. 610,

611-12 (9th Cir. BAP 1982) (holding that an order granted

-11-

Oo co NJ BR Ww F&F We LH

[ee OO o> I NO NO SO NO SE OO i co
foo es © = ONO > => ©) ©, i ~ ) )

Case 6:09-bk-14254-MJ_ Doc 2035 Filed 04/08/10 Entered 04/08/10 17:04:48 Des

Main Document Page 12 of 38

pursuant to § 364(b) must be supported by a finding that the
debt was an actual, necessary cost and expense of preserving the
estate). Such a result would render subsection (b) superfluous
and put additional burdens on lenders who do not agree to
administrative expense priority but instead require priority
over those very types of claims.

[A] debt authorized under § 364(c) (1) is not just a
kind of an administrative expense under § 503{b). It
is by its nature different, indeed superior, in the
sense that it must be paid with ‘priority’ over all
administrative expenses. To state it another way, the
statutory requirement that a § 364(c) (1) claim must be
paid before all administrative expenses are paid
precludes that § 364(c) (1) claim from also,
simultaneously, being itself a kind or form of an
administrative expense allowable under § 503(b) (1) of
the Bankruptcy Code.

Mayco Plastics, 379 B.R. at 701-02. Although Mayco Plastics is

factually distinguishable from this matter, the court finds the
court’s statutory analysis and rationale persuasive under these
circumstances.’

In short, the court declines to read words or requirements
into the statute that are not there. The priority of a claim
under § 364(c) (1) is established under the statute when a court
authorizes such priority due to a debtor’s inability to obtain

unsecured credit on an administrative expense priority basis

? In Mayco Plastics, the issue was whether a postpetition

lender with a priority claim under § 364(c)({1) also had standing
as an administrative expense claimant for purposes of objecting
to the debtor’s plan under § 1129(a) (9).

-12-

oOo SF SN DH A

10
1
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Case 6:09-bk-14254-MJ Doc 2035 _ Filed 04/08/10 Entered 04/08/10 17:04:48 Des
Main Document Page 13 of 38

under § 364(a) or (b). Application of the statute by its terms
does not lead to absurd results. Accordingly, the court is not
required to find the fee was a necessary expense which actually
benefitted the estate. Plainly stated, the Committee’s
administrative expense argument was a time-consuming foray under
the wrong legal standard and does not support its turnover
motion.
B. The Commitment Fee is Protected Under § 364(e)

BofA argues that the commitment fee is protected under
§ 364(e) because the interim order, by its very terms,
incorporates the protection offered under the statute. (Interim
Order § 26.) Section 364(e) provides:

The reversal or modification on appeal of an

authorization under this section to obtain credit or

incur debt, or of a grant under this section of a

priority or a lien, does not affect the validity of

any debt so incurred, or any priority or lien so

granted, to an entity that extended such credit in

good faith, whether or not such entity knew of the

pendency of the appeal, unless such authorization and

the incurring of such debt, or the granting of such

priority or lien, were stayed pending appeal.
It is well-settled that the overall policy behind § 364 is to

encourage lenders to provide financing to debtors by offering

them incentives for their risk taking. Burchinal v. Cent. Wash.

Bank (In re Adams Apple, Inc.), 829 F.2d 1484, 1488 (9th Cir.

1987).

The Committee argues that the safe harbor of § 364(e) is

-13-

i?)

fb

Oo SS Ss OO

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Case 6:09-bk-14254-MJ Doc 2035 Filed 04/08/10 Entered 04/08/10 17:04:48 Des
Main Document Page 14 of 38

applicable only to appeals. This argument arises from the words
of the statute, but that limitation in the context of this
motion is refuted by two circumstances. First, the policy
behind §364(e) strongly implicates its applicability when the
order in question is challenged in the bankruptcy court after
the lender has relied on the order‘’s protections. Second, the
incorporation of the language of §364{e) into the interim order
has the effect of making that protection part of the relief
ordered by the court such that it applies pre-appeal.

Lenders who deal with debtors and request and receive court
approval for interim financing arrangements rely on provisions
contained in interim orders just as they would rely on
provisions contained in a final, appealable order. Adams Apple,
829 F.2d at 1489 (noting that the policies behind § 364 (e)
indicate that a claim is moot as soon as a lender has relied on
the authorization). Accordingly, lenders commonly seek, and
obtain, § 364(e) protection for transactions in court-approved
interim orders. Under these circumstances, to allow an interim
financing order which is non-modifiable on its face to be
modified subsequent to its issuance is inconsistent with the
protection given to BofA as a DIP lender under § 364(e). Put
simply, § 364(e) would offer little incentive to lenders if its
protection was limited only to appeals since the bankruptcy

court’s modification of its own orders during the interim period

-14-

-_ WwW

Oo -2o SN DH tr

10
ll
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Case 6:09-bk-14254-MJ_ Doc 2035 Filed 04/08/10 Entered 04/08/10 17:04:48 Des
Main Document Page 15 of 38

“poses the same risks as does reversal on appeal.” See Kham &

Nate's Shoes No. 2, Inc. v. First Bank of Whiting (In re Kham &

Nate’s Shoes No. 2, Inc.), 908 F.2d 1351, 1355 (7th Cir. 1990);

see also, Vafer Inv. Group, LLC v. Case {In re Visionaire

Corp.), 299 B.R. 530, 535 (8th Cir. BAP 2003) (finding that it
would an abuse of discretion if the bankruptcy court modified
interim financing order after lender made advances during
interim period but noting that lender was not protected for
advances once interim period expired without final order).

The court concludes that the fee falls squarely within the
meaning of § 364(e). In this circuit, the law is settled that
§ 364(e) “broadly protects any requirement or obligation that
was part of a postpetition creditor’s agreement to finance
and therefore any agreements or conditions necessary to obtain
that credit were protected by § 364(e).” Weinstein v. Gill (In
re Cooper Commons, LLP, 430 F.3d 1215, 1219 (9th Cir. 2005); see
Adams Apple, 829 F.2d 1484.

In Adams Apple, the Ninth Circuit provided guidance for
determining whether a particular provision falls within the
meaning of § 364(e). Creditors appealed the district court’s
affirmance of the bankruptcy court’s authorization of a
financing order that contained a cross-collateralization clause.
Before reaching the merits of the cross-collateralization issue,

the Ninth Circuit considered whether the appeal was statutorily

-15-

co Oo 7S SS HO OH FF HS NY

NN BP we BD NR RD ND OBR OR
oc, Og SO cor oo = 1 i 2 Pl

Case 6:09-bk-14254-MJ Doc 2035 Filed 04/08/10 Entered 04/08/10 17:04:48 Deg
Main Document Page 16 of 38

moot under § 364(e) by examining the plain language of the
statute and the policy behind it. The court found that reversal
or modification of the cross-collateralization clause would
affect the “validity of the debt” within the meaning of

§ 364{e). Moreover, the court construed the statute to align
with congressional intent, viz that it was “designed to overcome
a good faith lender’s reluctance to extend financing in a
bankruptcy context by permitting reliance on a bankruptcy
judge's authorization.” Adams Apple, 829 B.R. at 1488.

In including cross-collateralization clauses within the
protection of § 364(e), the court recognized that a lender’s
reliance on a court’s order approving such clauses in connection
with postpetition DIP financing was paramount. Thus, Adams
Apple teaches that a lender is entitled as a matter of law to
rely on a bankruptcy court’s financing orders, unless shown to
act in bad faith.

The court concludes that the analysis and rationale set
forth in Adams Apple applies with equal force to interim
financing orders. The Committee seeks to undo a requirement and
precondition of the financing. Here, the good faith of BofA is
not at issue. Moreover, there can be little dispute about
BofA's reliance. The evidence before the court showed that the
financing offered by BofA was the “only deal” debtors could

obtain and that the terms, including the up-front payment of the

-16-

& WwW bb

Oo CO SS DW Ww

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Case 6:09-bk-14254-MJ_ Doc 2035 Filed 04/08/10 Entered 04/08/10 17:04:48 Des
Main Document Page 17 of 38

commitment fee, were heavily negotiated. Undoubtedly, the fee
was an integral part of the bargained-for consideration for BofA
to provide the financing.

Accordingly, the court finds that ordering turnover of the
commitment fee would affect the “priority so granted” within the
meaning of § 364(e). Further, this case does not simply involve
BofA's reluctance to extend financing, but its outright refusal,
when queried by the court, to extend credit without an up-front
payment of the commitment fee. In reality, there would be no
financing unless the commitment fee was paid immediately and in
conjunction with the interim order. Thus, the circumstances of
this case offer a compelling reason to uphold the policy under
§ 364(e) which is to protect a lender by allowing it to rely on
the court’s authorization of bargained-for terms.

In addition to this policy consideration, the exact
language in § 26 of the interim order compels the prohibition on
modification by the bankruptcy court:

Any stay, modification, reversal, or vacatur of this

Interim Order shall not affect the validity of any

Postpetition Obligations outstanding immediately prior

to the effective time of such stay, modification or

vacatur, or the validity or enforceability of any

Lien, priority, right, privilege or benefit authorized

hereby with respect to any such Postpetition

Obligations. Notwithstanding any such stay,

modification or vacatur, any postpetition Obligations

outstanding immediately prior to the effective time of

such modification, stay or vacatur shall be governed

in all respects by the original provisions of this

Interim Order, and the Postpetition Agent and the DIP
Lenders shall be entitled to all of the rights,

-17-

T)

So © wo HM KR BR OY ON Oe

Re MN MN BO BD BRD BRD BRD OBR Om memes
eo 4S KN UO FF YS VY KH CO Oo me ON ON OlUlUlUlUMhLaLULN UL

Case 6:09-bk-14254-MJ_ Doc 2035 _ Filed 04/08/10 Entered 04/08/10 17:04:48 Des
Main Document Page 18 of 38

privilege and benefits, including, without limitation,

the Liens and priorities granted herein, with respect

to all such Postpetition Obligations.

These sentences, standing alone, make no reference to an appeal
and their only purpose is to provide the anti-modification
protections in the bankruptcy court.

The Committee argues that there was no indication at the
hearings on the interim financing or in the interim order itself
that the court intended the commitment fee to be “earned on
receipt” or otherwise nonrefundable regardless of whether the
proposed DIP financing materialized for the benefit of the
estate. However, this argument misses the mark because it is
not the court’s intent that controls, but the agreement between
the parties. At the hearing, BofA stated it was the lenders’

position that, under the contract, the commitment fee was earned

once they made the funds available. See In re Arlington

Hospitality, Inc., 368 B.R. 702, 713 (Bankr. N.D. Ill.

2007) (noting that the court’s role is to approve the agreement
presented and that it is the agreement, not the order approving
it, that is the contract). Commitment fee provisions have been

enforced under the same theory advanced by BofA. See The Matter

of Four Seasons Nursing Ctrs. of Am., Inc., 483 F.2d 599, 603

(10th Cir. 1973) (holding that commitment fee was fixed and fully
earned when loan commitment agreement was signed and fact debtor

did not borrow full amount was of no consequence).

-18-

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Case 6:09-bk-14254-MJ_ Doc 2035 Filed 04/08/10 Entered 04/08/10 17:04:48 Des
Main Document Page 19 of 38

The Committee also argues that § 364(e}) protection should
not be afforded to postpetition lenders in the absence of
significant postpetition financing.*® (Reply Br. 7:13-25; 8:1-
3). This argument is a red-herring because turnover of the
commitment fee involves a narrow issue which does not require
this court to decide whether a lender is protected under
§ 364(e) as to money it did, or did not, disburse. Further,

Adams Apple instructs the court to focus on the particular

provision at hand to determine whether it fits within the scope

of § 364(e). Adams Apple, 829 F.2d at 1486, 1489 (finding
appeal moot even though post-petition lender advanced $450,000
of a $775,000 credit line). Accordingly, the actual amount of
the financing extended before debtor decided not to proceed with
additional financing does not enter into the equation under
these circumstances.’

Additionally, there are no allegations that BofA was not
ready, willing and able to loan the amount of funds authorized
under the interim order. Rather, through no fault of BofA,

debtors decided not to borrow past the interim period. Simply

1° BofA contends that throughout the interim period, the
lenders advanced funds under the terms of the DIP loan as
authorized by the interim order. The Committee disputes this
contention and asserts that the DIP lenders did not advance a
single dollar to debtors under the proposed DIP financing.

11 Tt also is an immaterial argument, as the Committee bases
its argument on the requirements of §503(b) administrative
priority, not required here as discussed above.

-19-

wo fo ~S DH A SF WY NH

MB BF BO BO BBO BRO ND ROR Oe ee ee ea ee
lo =e © Ss Ss > a Ol °c! ©) ) i ~ s > S o

Case 6:09-bk-14254-MJ_ Doc 2035 Filed 04/08/10 | Entered 04/08/10 17:04:48 Des
Main Document Page 20 of 38

CJ

put, BofA performed its part of the bargain and requiring it to
now turn over the fee runs afoul of § 364(e)’'s policy of
protecting lenders who offer financing on terms authorized by
the bankruptcy court.’? C£. In re The Korea Chosun Daily Times,
Inc., 337 B.R. 773, 778-81 (Bankr. E.D.N.Y. 2005) (finding that
debtor's failure to close postpetition loan that was approved by
court triggered lender’s right to commitment fee and payment of
reasonable expenses when it was a term of the underlying
agreement and lender was not at fault).

In sum, the court holds that § 364(e) protects the
commitment fee.

Cc. Modification of the Interim Order is not Appropriate
Under Fed. R. Civ. Proc. 60(b) (6) or § 105(a)

The court now considers whether modification of the interim
order under Fed. R. Civ. Proc. 60({(b) (6) or § 105{(a} is
appropriate.

Fed. R. Civ. P. 60(b) (6) applies by its terms only to final

orders.’*? Bankruptcy courts have taken a pragmatic approach to

“% Tt goes without saying that § 364(e) would not protect
BofA had it backed out of the financing. Rather, BofA would not
have been entitled to keep the commitment fee under a contract
analysis. Arlington Hospitality, 368 B.R. at 720 (noting that
financing orders under § 364 approve financing agreements, but
when it comes to enforcing those orders contractual principles

apply).

13 At the December 16, 2009 hearing, the Committee asserted
for the first time that § 18 of the September 10, 2009 cash
collateral order stated that the parties agreed the interim order
was not final. This assertion was incorrect and misleading. The

-20-

Oo co ~~} HW woh SS Ww KN —

BS Bb BO BRO BR ND ND BRD ORDO eee
eS ~T DB Ww BP WH NYO KY BOD CO Se SF HB Hh BP WH WH — BS

Case 6:09-bk-14254-MJ Doc 2035 Filed 04/08/10 | Entered 04/08/10 17:04:48 Des
Main Document Page 21 of 38

finality. Elliott v. Four Seasons Props. (In re Frontier

Props., inc.), 979 F.2d 1358, 1363 (9th Cir. 1992). “This

‘pragmatic approach’ to finality in bankruptcy focuses on
whether the decision appealed from ‘effectively determined the
outcome of the case.’” Id. In Frontier Properties, the Ninth
Circuit held that a bankruptcy order is appealable where it 1)
resolves and seriously affects substantive rights and 2) finally
determines the discrete issue to which it is addressed. Id, In
Wiersma, the Ninth Circuit explained further that an order is
final if it “constitutes a complete adjudication of the issues
and clearly evidences the judge’s intention it be final,”

Wiersma v. Bank of the West (In re Wiersma), 483 F.3d 933, 938

(9th Cir. 2007).

Here, the court concludes the test for finality is easily
met. The interim order resolved and seriously affected the
substantive rights of the parties with respect to the
availability and advancement of credit during the interim
period. Each of the discrete issues, including debtors’ up-
front payment of the commitment fee and its superpriority status

under § 364(c) (1), were finally determined. Additionally, the

language of 4 18 very clearly provided that nothing in the
September 10 order would have any effect on whether the interim
order was final and preserved the rights of both the Committee
and BofA to argue about the finality of that order in this
turnover motion. The tactics of the Committee in raising this
meritless argument at the hearing are questionable advocacy.

-21-

Md

No

Oo So SN DBD UH FS Ww

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Case 6:09-bk-14254-MJ Doc 2035 Filed 04/08/10 | Entered 04/08/10 17:04:48 Des
Main Document Page 22 of 38

court evinced the finality of the order when, in approving the
financing, it stated that some aspects of the order were
irreversible and what might be modified at the time of the final
order would be any additional lending made by BofA. (Tr. 29:10-
24, March 31, 2009). Thus, Fed. R. Civ. P. 60(b) (6} applies.

Courts in this circuit have been instructed that Fed. R.
Civ. P. 60(b) (6) “should be ‘used sparingly as an equitable
remedy to prevent manifest injustice’ and ‘is to be utilized
only where extraordinary circumstances prevented a party from
taking timely action to prevent or correct an erroneous

judgment.'”" United States v. Wash., 394 F.3d 1152, 1157 (9th

Cir. 2005). Further, although courts are given wide discretion
to reconsider their orders under Fed. R. Civ. P. 60({b), their
discretion is limited to those circumstances were no intervening
rights have vested in reliance on the order. Zurich Am. Ins.

Co. v. Int’]l Fibercom, Inc. (In re Int'l Fibercom, Inc.), 503

F.3d 933, 941 (9th Cir. 2007). “Accordingly, a party who moves
for such relief ‘must demonstrate both injury and circumstances
beyond his control that prevented him from proceeding with
the action in a proper fashion.’” Id.

Here, the court finds the facts of this case do not justify
relieving the Committee from the provisions in the interim order
which exhibited finality. The equities clearly weigh in favor

of BofA. Though hindsight revealed that the interim financing

-22-

Oo 8 s Dw Ww Se Ww WN

NO BND BRD ND ORD RD ee
fo aa © Ss i © o> ©, + cn i 2 i | © Ss o> ar

Case 6:09-bk-14254-MJ Doc 2035 Filed 04/08/10 —_ Entered 04/08/10 17:04:48 Des
Main Document Page 23 of 38

may have been unnecessary to the preservation of debtors’
estate, this was not the fault of BofA, which maintained all its
obligations throughout the interim period. The court observes
that debtors could have bargained for a refundable fee, but they
did not.** Thus, the court does not perceive a manifest
injustice will result by upholding the fee when BofA performed
under the agreement.

Furthermore, having found § 364(e) protects the commitment
fee, it would be inappropriate to allow modification of the
interim order when BofA’s rights have vested in reliance on the
order. Int’l Fibercom, 503 F.3d at 941.

Finally, while it goes without saying that unsecured
creditors suffer an injury when estate funds are paid to higher
priority creditors, the Committee has not demonstrated
circumstances beyond its control that prevented it from filing
an appeal. The circumstances actually suggest otherwise.

First, BofA made clear that the fee was a non-negotiable point
in extending DIP postpetition financing. Second, the court
expressed its view on the record that its decision approving the
commitment fee could not later be undone. Next, the interim
order made its provisions “effective as of the date of signature
by the Court.” (Interim Order §{ 32} Thus, upon issuance, the

order itself triggered the Committee’s obligation to, at

“ At least, not successfully.

-?3-

RR Be Nh

Co 6S SS DO

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Case 6:09-bk-14254-MJ Doc 2035 _ Filed 04/08/10 _ Entered 04/08/10 17:04:48 Deg
Main Document Page 24 of 38

minimum, immediately seek a stay. Last, although the Committee
contends that it reserved its rights, reserving rights on the
record alone does not toll the time for filing an appeal.”
Accordingly, for all these reasons, the court concludes that
relief under Fed. R. Civ. P. 60(b) (6) is not available.

Nor is the Committee entitled to relief under § 105(a).
Section 105(a) authorizes bankruptcy courts to “issue any order,
process or judgment that is necessary or appropriate to carry
out the provisions of [the Bankruptcy Code].” Relief under
§ 105(a) complements that under Fed. R. Civ. P. 60(b). Int‘l
Fibercom, 503 F.3d at 940. But that power cannot be used to
circumvent the requirements of Fed. R. Civ. P. 60(b) or other

clear statutory language. Missoula Fed. Credit Union v.

Reinerston {In re Reinerston), 241 B.R. 451, 456 (9th Cir. BAP

1999),
Even if the interim order was not a final order, the
balance of equities in this case do not support a modification

of the interim order under § 105(a).

15 The court also observes that the assertion by the
Committee that it “reserved its rights” is disingenuous on this
record. The court recessed the initial hearing on March 26, 2009
for the express purpose of giving the Committee the opportunity
to bargain for a broad reservation of rights with BofA. The
transcript of the March 27, 2009 hearing makes it clear the
Committee was unsuccessful in achieving any such reservation
pertaining to the commitment fee.

-34-

Cc

Oo CO ~~) DH WA ff

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Case 6:09-bk-14254-MJ Doc 2035 Filed 04/08/10 — Entered 04/08/10 17:04:48 Deg
Main Document Page 25 of 38

IIIT. CONCLUSION

For the reasons stated above, the court denies the
Committee’s motion.

This Memorandum Decision constitutes findings of fact and
conclusions of law under Federal Rule of Bankruptcy Procedure
7052. Counsel for BofA is directed to file with this Court an
order in conformance with this Opinion within ten (10) days from

the date of the entry hereof.

Dated: [yor 4 S rane | ane PEWNWwav

, MEREDI TH A. ap,
United States Bankr Judge

-25-

Cc

Case 6:09-bk-14254-MJ Doc 2035 Filed 04/08/10 Entered 04/08/10 17:04:48 Desc
Main Document _ Page 26 of 38

In re:

Fleetwood Enterprises, Inc. Et al., CHAPTER: #1

CASE NUMBER: RS 6:09-bk-14254 MJ

Debtor(s}.

NOTE TO USERS OF THIS FORM:
1) Attach this form to the last page of a proposed Order or Judgment. Do not file as a separate document.
2) The title of the judgment or order and all service information must be filled in by the party lodging the order.
3) Category |. below: The United States trustee and case trustee (if any) will always be in this category.
4) Category Il. below: List ONLY addresses for debtor (and attorney), movant (or attorney) and person/entity (or attorney) who filed an
opposition to the requested relief. DO NCT list an address if person/entity is listed in category I.

NOTICE OF ENTERED ORDER AND SERVICE LIST

Notice is given by the court that the attached order was entered on the date indicated as “Entered” on the first page of this
judgment or order and will be served in the manner indicated below:

l. SERVED BY THE COURT VIA NOTICE OF ELECTRONIC FILING (“NEF”) - Pursuant to controlling General Order(s)
and Local Bankruptcy Rule(s), |, deputy clerk who is making this entry; certify that service on all parties under Section II
was completed, the foregoing document was served on the following person(s) by the court via NEF and hyperlink to the
judgment or order. The following person(s) are currently on the Electronic Mail Notice List for this bankruptcy case or
adversary proceeding to receive NEF transmission at the email address(es) indicated below.

Andrew K Alper on behalf of Creditor GE Commercial Distribution Finance Corporation and GELCO
Corporation dba GE Capital Fleet Services
aalper@frandzel.com, efiling@frandzel.com;ekidder@frandzel.com

Lawrence Bass on behalf of Creditor Philips Products, Inc.
Ibass@faegre.com

Dennis G Bezanson on behalf of Creditor Flexsteel Industries, Inc.
dennis.bezanson@bbklaw.com, arthur.johnston@bbklaw.com;kenneth.burgess@bbklaw.com;bknotices@bbklaw.co

Mark § Blackman on behalf of Creditor 21st Mortgage Corporation
MBlackman@AlpertBarr.Com

Bradley D Blakeley on behalf of Defendant Gibraltar Insurance Company, Ltd., a corporation
bblakeley@blakeleyllp.com

William C Bollard on behalf of Debtor Fleetwood Enterprises, Inc.
eal@jbblaw.com, kmg@jbblaw.com;dritchie@jbblaw.com;william@jbblaw.com

Timothy Bortz on behalf of Creditor Timothy Bortz
tbortz@state.pa.us

John A Boyd on behalf of Interested Party Courtesy NEF
fednotice@tclaw.net

Mark Bradshaw on behalf of Interested Party Courtesy NEF

This form is mandatory. It has been approved for use by the United States Bankruptcy Court for the Central District of California.

January 2009 F 9021-1.1

Case 6:09-bk-14254-MJ Doc 2035 Filed 04/08/10 _ Entered 04/08/10 17:04:48 Desc
Main Document __ Page 27 of 38

In re:
Fleetwood Enterprises, Inc. Et al.,

Debtor(s}.

CHAPTER: 11

CASE NUMBER: RS 6:09-bk-14254 MJ

mbradshaw@)shblip.com

Bradley E Brook on behalf of Defendant Kelly Schalmo
bbrook@bbrooklaw.com, jimmy@bbrooklaw.com

Andrew W Caine on behalf of Creditor Committee Official Committee of Creditors Holding Unsecured Claims

acaine@pszyjw.com

Rebecca J Callahan on behalf of Creditor First American Trust Company, as Trustee of the Century Trust

reallahan@callahanlaw. biz

Craig C Chiang on behalf of Interested Party Courtesy NEF
cchiang@buchalter.com

Louis J Cisz on behalf of Creditor California Self-Insurers’ Security Fund

Icisz@nixonpeabody.com

Fred M Cohen on behalf of Creditor Sandra Dinsmore
fmcbktaxiaw@hotmail.com

Sidney A Cotlar on behalf of Creditor Conrad Budd
scotlar@hhke.com

Peter A Davidson on behalf of Plaintiff Alicia Rice
pdavidson@ecjlaw.com

Caroline Djang on behalf of Creditor Atwood Mobile Products LLC
crd@jmbm.com

Lynsey M Eaton on behalf of Creditor Cast Products Corporation
leaton@gglts.com

Richard T Egger on behalf of Interested Party Courtesy NEF
richard.egger@bbklaw.com

Amanda N Ferns on behalf of Defendant Bluelinx Corporation
aferns@fernslaw.com

Travis W Feuerbacher on behalf of Defendant Cast Products Corporation

tfeuerbacher@gglts.com

Abram Feuerstein on behalf of U.S. Trustee United States Trustee (RS)

abram.s.feuerstein@usdoj.gov

This form is mandatory. It has been approved for use by the United States Bankruptcy Court for the Central District of California.

January 2009

F 9021-1.1

Case 6:09-bk-14254-MJ Doc 2035 Filed 04/08/10 _ Entered 04/08/10 17:04:48 Desc

Main Document _ Page 28 of 38

In re: ;
Fleetwood Enterprises, Inc. Et al., CHAPTER: II

Debtor(s). CASE NUMBER: RS 6:09-bk-14254 MJ

Wayne S Flick on behalf of Creditor Bank of America, N.A.
wayne.s.flick@Iw.com, colleen.rico@lw.com

Donald L Gaffney on behalf of Interested Party Courtesy NEF
dgaffney@swlaw.com

Jeffrey K Garfinkle on behalf of Creditor Oracle USA, Inc.
bkgroup@buchalter.com, jgarfinkle@buchalter.com

Matthew B George on behalf of Creditor Ronald Doud
mbg@girardgibbs.com

Kenneth A Glowacki on behalf of Debtor Fleetwood Enterprises, Inc.
kglowacki@gibsondunn.com

Jeffrey T Gwynn on behalf of Creditor Dave Carter & Associates, Inc.
jgwynn@egwynn-law.com

Michael J Heyman on behalf of Creditor AL-KO Kober Corporation
michael. heyman@klgates.com

Mark D Houle on behalf of Interested Party New York Mellon Trust Co., N.A.
mark. houle@pillsburylaw.com

Sophie A Hubscher on behalf of Creditor Peggy Richan
sophie@korperlemonlaw.com

Jay W Hurst on behalf of Creditor Texas Comptroller of Public Accounts
jay. hurst@oag.state.tx.us, sherri.simpson@oag.state.tx.us

Yale K Kim on behalf of Creditor Brigade Capital Management, LLC
ykim@allenmatkins.com

Alan J Kornfeld on behalf of Creditor Committee Official Committee of Creditors Holding Unsecured Claims

akornfeld@pszjlaw.com, akornfeld@pszjlaw.com

Solmaz Kraus on behalf of Debtor Fleetwood Enterprises, Inc.
skraus@gibsondunn.com, skraus@gibsondunn.com

John F Kurtz on behalf of Creditor Boise Cascade, L.L.C.
jkurtz@hawleytroxell.com

This form is mandatory. It has been approved for use by the United States Bankruptcy Court for the Central District of California.

January 2009 F 9021 ~1 1

Case 6:09-bk-14254-MJ Doc 2035 Filed 04/08/10 _ Entered 04/08/10 17:04:48 Desc
Main Document _— Page 29 of 38

In re:

Fleetwood Enterprises, Inc. Et al., CHAPTER: 1

Debtor(s), CASE NUMBER: RS 6:09-bk-14254 MJ

Lewis R Landau on behalf of Interested Party Courtesy NEF
lew@landaunet.com

Mary D Lane on behalf of Creditor Committee Official Committee of Creditors Holding Unsecured Claims
mlane@pszjlaw.com

Daniel C Lapidus on behalf of Plaintiff Robert Myers
dan@lapiduslaw.com

Jean LeBlanc on behalf of Creditor Power Gear, a division of Actuant Corporation
jleblanc@mwe.com

Scott Lee on behalf of Creditor Philips Products, Inc.
slee@lbbslaw.com

Matthew A Lesnick on behalf of Creditor AT&T Capital Services Inc.
matt@lesnicklaw.com

Gabriel Liao on behalf of Creditor CRIC YUMA, LLC
gliao@perkinscoie.com

Elizabeth A Lossing on behalf of U.S. Trustee United States Trustee (RS)
elizabeth. lossing@usdoj.gov

Donald K Ludman on behalf of Creditor SAP America, Inc.
dludman@brownconnery.com

Gregory O Lunt on behalf of Creditor Bank of America, N.A.
gregory.lunt@lw.com

Rose D Manos on behalf of Creditor FEMA Trailer
rmanos@nexsenpruet.com

Rose D Manos on behalf of Defendant Allen Dailet
manos@nexsenpruet.com

Frank F McGinn on behalf of Interested Party Courtesy NEF
ffm@bostonbusinesslaw.com

David W. Meadows on behalf of Creditor American Electric Power
david@davidwmeadowslaw.com

Craig Millet on behalf of Debtor Continental Lumber Products, Inc.

This form is mandatory. Ithas been approved for use by the United States Bankruptcy Court for the Central District of California.

January 2009 F 9021-1.1

Case 6:09-bk-14254-MJ Doc 2035 _ Filed 04/08/10 _ Entered 04/08/10 17:04:48 Desc
Main Document — Page 30 of 38

In re:

Fleetwood Enterprises, Inc. Et al., CHAPTER: 11

Debtor(s), CASE NUMBER: RS 6:09-bk-14254 MJ

cmillet@gibsondunn.com, pcrawford@gibsondunn.com;cmillet@gibsondunn.com

Christopher Minier on behalf of Creditor Courtesy Ford, Inc.
becky@ringstadlaw.com

Byron Z Moldo on behalf of Plaintiff Alicia Rice
bmoldo@ecjlaw.com, tmelendez@ecjlaw.com

John D Monte on behalf of Creditor Maytag Corporation
montelaw@earthlink.net

Harvey M Moore on behalf of Interested Party Progressive Casualty Insurance Company
hmoore@bidnakeys.com

Randall P Mroczynski on behalf of Defendant Fluor Corporation, a corporation
randym@cookseylaw.com

Randy P Orlik on behalf of Creditor ISIS Lending, LLC
rorlik@coxcastle.com

Todd L Padnos on behalf of Creditor Deutsche Bank Trust Company Americas
tpadnos@dl.com, dkennedy@dl.com;sholstrom@dl.com;rkeenan@dl.com;tboothe@dl.com

Leo D Plotkin on behalf of Creditor Textron Financial Corporation
Iplotkin@Isl-la.com, dsmall@Isl-la.com

David M Poitras on behalf of Creditor Atwood Mobile Products LLC
dpoitras@jmbm.com

Kimberly A Posin on behalf of Creditor Latham & Watkins LLP
kim.posin@lw.com

Samuel Price on behalf of Creditor National General Assurance Company
sprice@donahoeyoung.com

Hamid R Rafatjoo on behalf of Creditor Committee Official Committee of Creditors Holding Unsecured Claims
hrafatjoo@pszjlaw.com, hrafatjoo@pszjlaw.com

Michael Reed on behalf of Creditor Bell County TAD, et al
othercourts@mvbalaw.com

Jeffrey H. Reeves on behalf of Defendant Fleetwood Enterprises, Inc.
jreeves@gibsondunn.com

This form is mandatory. It has been approved for use by the United States Bankruptcy Court for the Central District of California.

January 2009 F 9021-1.1

Case 6:09-bk-14254-MJ Doc 2035 _ Filed 04/08/10 _ Entered 04/08/10 17:04:48 Desc
Main Document Page 31 of 38

In re:

Fleetwood Enterprises, Inc. Et al., CHAPTER: 11

Debtor(s), CASE NUMBER: RS 6:09-bk-14254 MJ

Michael B Reynolds on behalf of Creditor Cavco Industries
mreynolds@swlaw.com, kcollins@swlaw.com

Christopher P Ridout on behalf of Creditor Conrad Budd
¢.ridout@ridoutlyonlaw.com

Martha E Romero on behalf of Creditor San Bernardino County Tax Collector
Romero@mremerolawfirm.com

Diane W Sanders on behalf of Creditor McLennan County
austin.bankruptcy@publicans.com

Scott A Schiff on behalf of Creditor Maricopa County Treasurer
sas@soukup-schiff.com

Mark C Schnitzer on behalf of Creditor Esco Industries, Inc.
mschnitzer@rhlaw.com

Daniel R Shapiro on behalf of Creditor Christie Davis
dnalaw@sbeglobal.net

Pamela E Singer on behalf of Creditor Committee Official Committee of Creditors Holding Unsecured Claims
psinger@pszjlaw.com, ksuk@pszjlaw.com

Ramesh Singh on behalf of Interested Party Courtesy NEF
claims@recoverycorp.com

Howard Steinberg on behalf of Other Professional Greenhill & Co. LLC
hsteinberg@irell.com, awsmith@irell.com

Jason D Strabo on behalf of Creditor Power Gear, a division of Actuant Corporation
jstrabo@venable.com, losangelestrialdocket@mwe.com

United States Trustee (RS)
ustpregion16.rs.ecf@usdoj.gov

Anne A Uyeda on behalf of Debtor Fleetwood Enterprises, Inc.
auyeda@ gibsondunn.com

Gary R Wallace on behalf of Creditor Shaw Industries, Inc.
gwallace@hbblaw.com

This form is mandatory. It has been approved for use by the United States Bankruptcy Court for the Central District of California.

January 2009 F 9021 -1 1

Case 6:09-bk-14254-MJ Doc 2035 Filed 04/08/10 _ Entered 04/08/10 17:04:48 Desc

Main Document

Page 32 of 38

In re:
Fleetwood Enterprises, Inc. Et al.,

CHAPTER: 11

CASE NUMBER: R&S 6:09-bk-14254 MJ

Debtor(s}.

Madeleine C Wanslee on behalf of Creditor Maricopa County Treasurer

mwanslee@gustlaw.com, rstein@gustlaw.com

Michael D Warner on behalf of Creditor IDG USA LLC d/b/a Boring-Smith an Industrial Distribution Group,

Inc. Company
echou@warerstevens.com

Martha A Warriner on behalf of Creditor Esco Industries, Inc.

mwarriner@rhlaw.com

Sharon Z Weiss on behalf of Creditor LazyDays RV Supercenter, Inc.
sweiss@richardsonpatel.com, bkdeptnef@richardsonpatel.com

Joseph M Welch on behalf of Creditor Flexsteel Industries, Inc.

joseph. welch@bbklaw.com, kenneth.burgess@bbklaw.com;bknotices@bbklaw.com;joseph.welch@bbklaw.com;art!

Elizabeth Weller on behalf of Creditor Dallas County - Tarrant County

dallas. bankruptcy@publicans.com

Rebecca J Winthrop on behalf of Creditor Westchester Fire Insurance Company

winthropr@ballardspahr.com

Alan Z Yudkowsky on behalf of Creditor Southpaw Koufax LLC

ayudkowsky@stroock.com

O Service information continued on attached page

li. SERVED BY THE COURT VIA U.S. MAIL: | deputy clerk who is making this entry; certify that service on all parties
under Section Ii was completed, A copy of this notice and a true copy of this judgment or order was sent by United States
Mail, first class, postage prepaid, to the following person(s) and/or entity(ies) at the address(es) indicated below:

Terry L Baker on behalf of Plaintiff Robert Barabino
Makler & Baker LLP

820 Bay Ave Ste 230J

Capitola, CA 95010

John T Banks on behalf of Creditor Kendall County
3301 Northland Dr Ste 505
Austin, TX 78731

Patrick Barrows
721 N 8th
Ellin, OR 97827

Annette Bax
1004 NE 72nd Street Apt 31
Vanc, WA 98665

This form is mandatory. It has been approved for use by the United States Bankruptcy Court for the Central District of California.

January 2009

F 9021-1.1

Case 6:09-bk-14254-MJ Doc 2035 Filed 04/08/10 _ Entered 04/08/10 17:04:48 Desc

Main Document

Page 33 of 38

In re:
Fleetwood Enterprises, Inc. Et al.,

CHAPTER: 11

Debtor(s). CASE NUMBER: RS 6:09-bk-14254 MJ

Raul R Bencomo on behalf of Defendant Carl Tasker
Bencomo & Associates

639 Loyola Ave

Ste 2110

New Orleans, LA 70113

Howard M. Bidna on behalf of Plaintiff First
American Trust Company, as Trustee of the Century T
Bidna & Keys APLC

5120 Campus Dr.

Newport Beach, CA 92660

rust

Bluelinx Corporation

c/o Ferns, Adams & Associates
2815 Mitchell Drive

Suite 210

Walnut Creek, CA 94598

Richard E. Bromley on behalf of Creditor American
Industrial Partners LP

Nixon Peabody LLP

555 West Fifth St 46th F]

Los Angeles, CA 90013-1010

Bradley Brook

Law Offices of Bradley Brook
523 W., Sixth Street, Suite 215
Los Angeles, CA 90014

Richard L Brown on behalf of Plaintiff Fleetwood
Enterprises, Inc A Delaware corporation

Julander Brown & Bollard

9110 Irvine Center Drive

Irvine, CA 92618

Joseph M Bruno on behalf of Defendant Carl Tasker
Law Office of Joseph M. Bruno

855 Baronne St

3rd fl

New Orleans, LA 70113

Stephen P Bruno on behalf of Defendant Jean Joseph
Bruno & Bruno LLP

855 Baronne St

New Orleans, LA 70113

Richard J Burdge on behalf of Creditor FEMA Trailer
Howrey LLP

550 S Hope St

Los Angeles, CA 90071

Roberta L Burns on behalf of Defendant Tina Ladner
Law Offices of Sidney D. Torres, III, AP

8301 W Judge Perez Dr

Chalmette, LA 70043

Nick Clavijo
Box 237
Mt Mourne, NC 28123

G Bret Culbreth on behalf of Creditor Allstate
Insurance Company

Culbreth Schroeder LLP

2945 Ramco Street Ste 180

West Sacramento, CA 95691

This form is mandatory. It has been approved for use by the United States Bankruptcy Court for the Central District of California.

January 2009

F 9021-1.1

Case 6:09-bk-14254-MJ Doc 2035 Filed 04/08/10 _ Entered 04/08/10 17:04:48 Desc

Main Document

Page 34 of 38

In re:
Fleetwood Enterprises, Inc. Et al.,

Debtor(s).

CHAPTER: II

CASE NUMBER: RS 6:09-bk-14254 MJ

Debt Acquisition Company of America V, LLC
1565 Hotel Circle South

Suite 310

San Diego, CA 92108

John P. Dillman on behalf of Creditor Fort Bend Coun
PO Box 3064
Houston, TX 77253-3064

Richard E Donahoo on behalf of Creditor Jose Rosales
Donahoo & Associates

440 West First St Ste 101

Tustin, CA 92780

Engineering Systems Inc
3851 Exchange Ave
Aurora, IL 60504

FTI Consulting
633 West 5th Street Ste 1600
Los Angeles, CA 90071

Matthew B George on behalf of Plaintiff Curtis Howe
601 California St 14th Floor
San Francisco, CA 94108

Eric H Gibbs on behalf of Creditor Ronald Doud
601 California St, Suite 1400
San Francisco, CA 94108

Jason C Gless on behalf of Plaintiff Robert Barabino
Wood Smith Henning & Berman

3801 University Ave Ste 710

Riverside, CA 92501

R. L. Goodrich
22365 Barton Road, Suite 220
Grand Terrace, CA 92313

Lance G Greene on behalf of Creditor Daniel Bancroft
1875 Century Park East
Century City, CA 90067

Jim S Hall on behalf of Defendant Allen Dailet
Jim S Hall & Associates

800 N Causeway Blvd Ste 100

Metairie, LA 70113

Lee Harrington on behalf of Creditor Fleetwood RV In|
Nixon & Peabody
100 Summer St
Boston, MA 02110

Dale C Hoy on behalf of Plaintiff People Of The
State Of California

4075 Main St

1st Floor

Riverside, CA 92501

Dylan Hughes on behalf of Plaintiff Brian Tucker
601 California St 14th Fl
San Francisco, CA 94108

y

This form is mandatory. It has been approved for use by the United States Bankruptcy Court for the Central District of Catifornia.

January 2009

F 9021-1.1

Case 6:09-bk-14254-MJ Doc 2035 Filed 04/08/10 _ Entered 04/08/10 17:04:48 Desc

Main Document

Page 35 of 38

In re:
Fleetwood Enterprises, Inc. Et al.,

Debtor(s).

CHAPTER: 11

CASE NUMBER: RS 6:09-bk-14254 MJ

Scott R Kamrath on behalf of Creditor State Farm
Mutual Automobile Insurance Company

Law Offices of Scott R Kamrath

22845 Ventura Blvd Ste 523

Woodland Hills, CA 91364-1202

Richard D Keys on behalf of Plaintiff First American
Trust Company, as Trustee of the Century Trust
Bidna & Keys APLC

5120 Campus Drive

Newport Beach, CA 92660

Lane County Assessment and Taxation
125 East 8th Ave
Eugene, OR 97401-2968

Ryan D Lapidus on behalf of Plaintiff Robert Myers
177 8 Beverly Dr
Beverly Hills, CA 90212

Alan M Mansfield on behalf of Creditor Jesse Browden
Consumer Law Group

9466 Black Mountain Road

San Diego, CA 92126

Gerald Meunier on behalf of Defendant Markiesha Ber
Gainsburgh Benjamin David Meunier, et al

1100 Poydras, St. 2800 Energy Centre

New Orleans, LA 70163

nett

Timothy D Murphy on behalf of Creditor Pat and
Mary Lafferty

The Law Offices of James Jay Seltzer

3300 Powell Street, Ste 201

Emeryville, CA 94608

Ramona Neal on behalf of Creditor Hewlett-Packard Co

11311 Chinden Blvd
Mailstop 314
Boise, ID 83714-0021

Rod Pacheco on behalf of Plaintiff People Of The
State Of California

4075 Main St

Ist fl

Riverside, CA 92501

Pachulski Stang Zieh on behalf of Creditor
Committee Official Committee of Creditors Holding
Unsecured Claims

10100 Santa Monica Blvd

Los Angeles, CA 90067

Richard Pachulski on behalf of Plaintiff Official
Committee of Creditors Holding Unsecured Claims
10100 Santa Monica BI Ste 1100

Los Angeles, CA 90067-4003

David B Pillemer on behalf of Creditor State Farm
Mutual Automobile Insurance Company

Pillemer & Pillemer

14724 Ventura Blvd Ste 401

Sherman Oaks, CA 91403-3510

Vincent E Rhynes
1514 W Manchester Ave #5
Los Angeles, CA 90047

David P Riley
14 E Duke Ave
Pensacola, FL 32534

This form is mandatory. It has been approved for use by the United States Bankruptcy Court for the Central District of California.

January 2009

F 9021-1.1

Case 6:09-bk-14254-MJ Doc 2035 Filed 04/08/10 _ Entered 04/08/10 17:04:48 Desc

Main Document

Page 36 of 38

In re:
Fleetwood Enterprises, Inc. Et al.,

Debtor(s),

CHAPTER: 11

CASE NUMBER: RS 6:09-bk-14254 MJ

Robert S Robinson on behalf of Defendant Maytag
Corporation dba Magic Chef, a corporation
Bowman & Brooke LLP

879 W 190th St Ste 700

Gardena, CA 90248

Mark € Schnitzer

Reid & Hellyer A Professional Corp
P O Box 1300

Riverside, CA 92502-1300

Andrea Teves Smith on behalf of Creditor Jeaneen Gof

Peterson & Meyers PA
POB 24628
Lakeland, FL 33802

=

Dean P Sperling on behalf of Creditor State Farm
Mutual Automobile Insurance Company

201 E Sandpointe Ste 220

Santa Ana, CA 92870

Tennessee Department of Revenue
c/o TN Attorney General's Office
PO Box 20207

Nashville, TN 37202-0207

Travelers

National Accounts

Attn: Chantel Pinnock

| Tower Sq - SMN
Hartford, Ct 06183-4044

Daniel F Vidas on behalf of Creditor North Pacific

Clifton L Wiseman on behalf of Creditor California

Group, Inc Suncoast Inc et al

851 SW Sixth Avenue Ste 1500 West & Miyamoto

Portland, OR 5151 Verdugo Way Ste 203
Camarillo, CA 93012

Richard J Wittbrodt on behalf of Creditor Tristar Bank of America, N.A.

Distributing Inc Latham & Watkins LLP

1880 Century Park E 12th FL
Los Angeles, CA

355 South Grand Ave.
Los Angeles, CA 90071-1560

Gregory O Lunt Craig Millet

Latham & Watkins LLP 3161 Michelson Dr, Ste 1200
355 S Grand Ave, Ste 100 Irvine, CA 92612

Gibson Dunn & Crutcher Todd L Padnos

3161 Michelson Drive Suite 1200
Irvine, CA 92612-4412

1950 University Ave Ste 500
East Palo Alto, CA 94303

This form is mandatory. It has been approved for use by the United States Bankruptcy Court for the Central District of California.

January 2009

F 9021-1.1

Case 6:09-bk-14254-MJ Doc 2035 Filed 04/08/10 _ Entered 04/08/10 17:04:48 Desc
Main Document Page 37 of 38

Tn re:

Fleetwood Enterprises, Inc. Et al. CHAPTER: I]

CASE NUMBER: RS 6:09-bk-14254 MJ

Debtor(s).
Elizabeth A Lossing Yale K Kim
3685 Main St Ste 300 515 S Figueroa St 7th Flr
Riverside, CA 92501 Los Angeles, CA 90071-3398

. Cadwalader Wickersham & Taft LLP
Allen Matkins Leck Gamble Peter M. Friedman

Mallory & Natsis LLP 1201 F St NOTICE WAIVED
1900 Main Street, Fifth Floor Washington, DC 20004
Irvine, CA 92614-7321

[ Service information continued on attached page

Wl. TO BE SERVED BY THE LODGING PARTY: Within 72 hours after receipt of a copy of this judgment or order which
bears an “Entered” stamp, the party lodging the judgment or order will serve a complete copy bearing an “Entered” stamp
by U.S. Mail, overnight mail, facsimile transmission or email and file a proof of service of the entered order on the following
person(s) and/or entity(ies) at the address(es), facsimile transmission number(s), and/or email address(es) indicated
below:

O Service information continued on attached page

This form is mandatory. ithas been approved for use by the United States Bankruptcy Court for the Central District of California.

January 2009 F 9021 -1 1

Case 6:09-bk-14254-MJ Doc 2035 Filed 04/08/10 _ Entered 04/08/10 17:04:48 Desc
Main Document Page 38 of 38

In re:
Fleetwood Enterprises, Inc. Et ai., CHAPTER: 11

CASE NUMBER: RS 6:09-bk-14254 MJ

Debtor(s).

ADDITIONAL SERVICE INFORMATION (if needed):

This form is mandatory. It has been approved for use by the United States Bankruptcy Court for the Central District of California.

January 2009 F 9021 -1 1