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UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF COLORADO

In re Case No. 12-24882 ABC CORDILLERA GOLF CLUB, LLC dba The Club at Cordillera, Chapter 11 Tax ID / EIN: 27-0331317 Debtor.

SUPPLEMENT BY DEBTOR AND DEBTOR-IN-POSSESSION TO APPLICATION OF THE DEBTOR AND DEBTOR-IN-POSSESSION FOR AN ORDER AUTHORIZING THE RETENTION AND EMPLOYMENT OF FOLEY & LARDNER LLP AS GENERAL BANKRUPTCY COUNSEL TO THE DEBTOR NUNC PRO TUNC TO THE PETITION DATE; AND RESPONSE TO OBJECTIONS FILED

Debtor and Debtor-in-Possession, Cordillera Golf Club, LLC, dba The Club at Cordillera (the "Debtor"), by and through its undersigned counsel, hereby respectfully submit this Supplement to Application of the Debtor for an Order Authorizing the Retention and Employment of Foley & Lardner LLP as General Bankruptcy Counsel to the Debtor Nunc Pro Tunc to the Petition Date (the "Application"); and Response to (1) the objection filed the Official Committee of Unsecured Creditors (the "OCC"); (2) the joinder to the OCC's objection filed by Cheryl M. Foley, et. al. (the "Member Representatives"); and (3) the objection filed the United States Trustee (the "UST"). I. INTRODUCTION The OCC, the Member Representatives and the UST have objected to the employment of Foley & Lardner LLP ("Foley" or the "Firm") as co-counsel to the Debtor. The objections are couched with the stated concerns that the Firm has such a close connection and relationship with David Wilhelm ("Wilhelm"), the Debtor's indirect
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principal, that the appearance of that close connection requires disqualification because the Firm cannot be expected to discharge its fiduciary duties to the estate, and as a result of the "appearance" of a close connection to the ultimate principal of the Debtor, the Firm is not "disinterested" within the meaning of 327(a). In short, the objections assert that Wilhelm, individually, is so important to the Firm, that the Firm could not exercise its judgment in favor of the estate or creditors if that judgment were indeed adverse to Wilhelm. For the reasons set forth below, Foley and the Debtor contend otherwise. In addition, certain objecting parties have requested clarification of certain items, and that clarification and additional information is set forth below. As this Court is aware from the detailed declaration of Christopher Celentino [Dkt. No. 115] (the "Celentino Declaration") regarding the Firm's disinterestedness submitted in support of the Application, the Firm and Mr. Celentino take the disclosure requirements very seriously. The Celentino Declaration painstakingly details -- perhaps so much to have created unnecessary confusion -- each and every contact or connection it has with the Debtor, Wilhelm, and affiliated entities, as well as the many creditors and parties in interest in this Case. II. BACKGROUND A. Procedural Background. On June 26, 2012 (the "Petition Date"), the Debtor filed its voluntary petition for relief under chapter 11 of title 11 U.S.C., as amended (the "Bankruptcy Code"), in the United States Bankruptcy Court for the District of Delaware (the "Delaware Court") commencing bankruptcy case number 12-11893. The Debtor is operating its business and managing its properties as a debtor-in-possession pursuant to 1107(a) and 1108 of the Bankruptcy Code. On July 6, 2012, the United States Trustee filed its Notice of Appointment of Committee of Unsecured Creditors forming the OCC.

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On July 16, 2012, venue of the Case was transferred to the United States Bankruptcy Court for the District of Colorado, commencing bankruptcy case number 1224882-ABC (the "Case"). B. Events Leading to Bankruptcy. On or about June 26, 2009, the Debtor borrowed $13.7 Million from Alpine Bank. On or about June 23, 2010, and thereafter, Wilhelm loaned the Debtor approximately another $7.5 Million to make dramatic improvements to the Club at Cordillera (the "Club"). By all accounts, the quality of the facilities and services were noted as greatly improved by everyone affiliated with the Club. The current direct and indirect equity owners of the Club (collectively, the "Owners") acquired the Club under unusual circumstances in 20091, and indeed such circumstances led to the need to borrow the funds set forth above. Prior to the time when the current Owners acquired the Club, some of the current Owners were minority owners of the Club. The then-majority owners sought to sell the Club to a group of members at a purchase price of $24.5 Million, an amount that would have returned virtually nothing to the minority owners, and an amount which proved to be roughly 50% of the Club's then appraised value. The then-minority owners asserted that the Club could not be sold absent their consent, and commenced litigation. The arbitrator ultimately agreed with the minority owners, and entered a significant judgment in favor of the minority owners. In satisfaction of the judgment, the majority owners transferred all of their ownership of the Club to the minority owners, who are now directly and indirectly the 100% owners of the Club but the transfer did not occur before the majority owners drained all the cash from the Club. The Club had no choice but to borrow funds to keep the Club alive. Beginning in approximately August 2010, relationships between the Debtor, some of the Club's members, and some of the surrounding non-member homeowners, began to
The members of the Club have no ownership or equity interest in the Club or any of the Debtor's property. 3
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sour. The Debtor filed litigation against some of these parties in the Spring of 2011, asserting claims for $96 Million in damages, and that case is currently pending in District Court, Eagle County, State of Colorado ("Colorado State Court") as Case No. 2011 CV 456, Cordillera Golf Club, Inc., et al. v. Cordillera Transition Corporation, Inc., et al. (the "CTC Litigation"). See, Excerpt attached to Debtor's CRO Supplement as Exhibit "A", incorporated herein by reference, from the Transcript of Hearing Before Honorable Christopher S. Sontchi, United States Bankruptcy Judge, dated July 16, 2012 at p. 14:13 [Dkt. No. 230-1]. In response, about a month later, certain persons filed a Class Action case against the Debtor seeking at least $12 Million in damages, contending that some of those alleged damages "may be subject to treble damages", for alleged breach of contract, and that case is currently pending in the Colorado State Court as Case No. 2011 CV 552, Cheryl M. Foley, et al. v. Cordillera Golf Club LLC, et al. (the "Class Acton Litigation"). Id., at p. 15:20-22. The Debtor filed this chapter 11 case because its loan to Alpine Bank came due on June 26, 2012, and prior to that time, Alpine Bank had been unwilling to extend the due date on terms that were acceptable to the Debtor. The Debtor faces financial difficulties because, after undertaking the expenditure of several millions of dollars in facility and service improvements since acquiring the Club in early 2009, many members refused to pay dues in 2011 and/or 2012. As a result of the cash flow problems caused by the significant failure to pay dues, the Club was forced to cut back services. The cutback fueled further issues between the parties. This Chapter 11 case is about a rehabilitation of the Club, and not a liquidation or wholesale 363 sale, which rehabilitation the Debtor believes will benefit all of the members of the Club.

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III. ARGUMENT A. Role of Counsel. When the Case was filed in Delaware, it was contemplated that

the Firm would serve as lead counsel to the Debtor, and Young Conaway Stargatt & Taylor, LLP ("Young Conaway") would serve as local and conflicts counsel. The Application on file herein was not modified due to the transfer, and has been pending in the form as filed in Delaware. Since venue has been transferred to Denver, however, the Debtor has retained Harvey Sender, David Wadsworth, and the firm Sender & Wasserman, P.C. ("Sender & Wasserman") as its counsel. The Court entered its order approving the employment of Sender & Wasserman on July 26, 2012 [Dkt. No. 262]. In light of Mr. Sender's experience, including his more than 27 years as a panel trustee in this District, the Debtor requests that Mr. Sender and his firm be treated as and considered lead counsel in the Case, with the Foley firm serving in the role of supporting counsel. It will be incumbent upon both counsel to come forward with a division of labor that avoids substantial duplication -- a division, based upon the combined experience, that will not be difficult to master, and as to which the Court will retain jurisdiction. In this manner, Sender & Wasserman and the Debtor can take advantage of the substantial institutional knowledge and golf course and related plan experience possessed by Foley; the specific transaction and finance expertise of the attorneys at Foley; and can take the lead in handling those matters that caused the stated concerns set forth in the objections. As set forth in the Application, and in light of the presence of Sender & Wasserman as lead counsel in the Case, the Firm has an executed conflict waiver with Wilhelm, and affiliates, confirming that the Firm will not represent anyone other than the Debtor in this bankruptcy proceeding, and that each person or entity will secure separate legal counsel in connection with all other matters related to the Debtor. B. Status of Matters and Connections. In the oppositions to the Foley employment,

the objecting parties seek additional disclosure concerning the details of the
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representations disclosed by Foley in the initial Application and the Celentino Declaration. Foley and the Debtor apologize to the extent that the detailed Celentino Declaration may have created confusion. As is set forth below, there are certain matters in which Foley has been involved relative to this Debtor, and as to which Foley's expertise will greatly streamline a resolution of this Case. 1. Cordillera-related representation. As a supplement to the Celentino

Declaration, the Debtor hereby discloses the relevant matters for which Foley represented this Debtor prior to the bankruptcy filing. a. Acquisition of the Debtor. As set forth in the Application, Foley

represented Wilhelm in the litigation with his former majority members which resulted in Wilhelm's ultimate, although indirect, acquisition of the Club. As with many successful real estate developers and entrepreneurs, the acquisition was handled through a series of limited liability companies. Each entity, as a separate legal entity, can therefore own various aspects of the overall business, and undertake to take investment from third parties for specific purposes. Foley was involved in the formation of the limited liability companies, and ultimately the dissolution of several of the limited liability companies (certain assets once held in limited liability companies, such as the liquor license for the restaurants, were ultimately returned to the Debtor and the independent limited liability company dissolved). From time to time, organizational documents relating to the Debtor, and various parties' interests in the Debtor or its affiliates, were prepared by Foley, including amendments, consent actions, etc. The institutional knowledge possessed by Foley will be helpful to lead counsel, Sender & Wasserman, in developing a reorganization strategy in the Case. b. Alpine Bank Loan. Foley served as counsel to the Debtor in

connection with the Debtor's loan transaction with Alpine Bank. As disclosed in the Application, as part of that transaction, Foley gave an opinion regarding the loan, an opinion that is typical of these types of transactions. The furnishing of this opinion
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represents nothing out of the ordinary, and certainly does not impact Foley's disinterestedness regarding representing the Debtor in its dealings with its creditors, including Alpine Bank. c. Wilhelm Loan. In or about June 2010, Foley represented the

Debtor, and not Wilhelm, who was represented by separate counsel (Greenburg Trauig) in the borrowing of funds from Wilhelm which were utilized by the Debtor in its operations. Thereafter, various modifications were made to such loan, and again Foley did not represent Wilhelm. Most recently, Wilhelm was represented by Duane Morris with respect to its loan to the Debtor. Foley was adverse to Wilhelm in that transaction, and submits that the documents are customary, ordinary, and not overreaching in any regard. That loan transaction was nothing out of the ordinary. Moreover, Foley represented the Debtor and therefore nothing concerning this transaction affects Foley's disinterestedness regarding representing the Debtor and the estate in its dealings with its creditors. There is no current or ongoing work related to this transaction. d. Rush Family Trust Loan. Foley represented the Debtor, and not

Wilhelm, Dr. Rush or the Rush Family Trust (collectively, "Rush"), in connection with loan transactions in which Rush loaned money to Wilhelm, then loaned to the Debtor and utilized by the Debtor in its operations, and as to which the Debtor executed an unsecured guaranty in favor of Rush. Foley was adverse to Wilhelm and Rush in this transaction and subsequent modifications, and submits that the documents are customary, ordinary, and not overreaching in any regard. This loan transaction is nothing out of the ordinary. Moreover, Foley represented the Debtor and therefore nothing concerning this transaction affects Foley's disinterestedness regarding representing the Debtor or the estate in its dealings with its creditors. There is no current or ongoing work relating to this transaction.

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e.

The CTC Litigation. In or about May 2011, the Debtor and others

filed the CTC litigation. The Debtor and the others involved in that litigation retained legal counsel to represent them and Foley is not counsel to any party in that litigation. Foley does consult from time to time with the Debtor regarding such litigation as it relates to the Debtor's assets, claims, and the Class Action Litigation. f. Class Action Litigation. About a month after the filing of the CTC

Litigation, the Class Action Litigation was commenced against the Debtor, Wilhelm, the Debtor's direct equity owner Cordillera Golf Holdings, LLC ("Holder"), WFP Investments, LLC ("WFP"), the equity holder CGH Manager, LLC ("CGH") (the Debtor's Manager under its operating agreement), Cordillera F & B, LLC, and Patrick Wilhelm, an alleged officer of the parent. The defense of the Class Action Litigation was tendered to Zurich American Insurance Company ("Zurich"), the Debtor's insurer, and the defense was accepted. After a false start with another law firm, Zurich ultimately appointed Gordon & Rees LLP as lead counsel, and Foley as supporting co-counsel (with a defined limited role), to all the defendants in that case. As is often the case in similar cases, each individual defendant asserted indemnification rights as against the entity of which each served as an officer. Zurich is responsible for substantially all of the fees owing to Foley, although there is a modest hourly rate differential for which the nondebtor parties are responsible to Foley. The total unpaid amount (billed and work in process) in this litigation for which Zurich is primarily responsible as of the petition date is approximately $243,000; the non-debtor parties portion of this (i.e. the rate differential amount) is approximately $42,206. Pursuit of the action against the Debtor is stayed as a result of the bankruptcy filing. As is customary and common in cases in which one firm represents multiple defendants, Foley's agreement, as disclosed in the Application, provides that Foley's representation of all defendants is subject to the continued pursuit of a common interest, and for so long as the defendants' interests remain aligned. To the extent that any conflict
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should develop as to any party, Foley shall resign from the representation of the conflicted party. As the objecting parties are aware, for much of the last year, and right up until the filing of the petition, Foley attorneys worked diligently to attempt to settle the Class Action Litigation a settlement which would and could have settled the CTC Litigation and avoided a bankruptcy to no avail. As a result of the strenuous efforts to attempt to settle the entirety of the matters, and then the last-minute push to prepare and file the Case when it became evident that Alpine Bank would not extend the due date on the Debtor's loan obligation, Foley's insolvency counsel were consulted with an eye toward a possible chapter 11 case. Insolvency counsel analyzed the Debtor's transactional documents, reviewed and developed business plans and budgets, participated in the interview of potential professionals, and negotiated with possible lenders, tried to settle the CTC and Class Action Litigation, and provided other insolvency counseling services in anticipation of the chapter filing. In calendar year 2012, and prior to the filing of the petition, the firm incurred fees in the amount of approximately $325,000, exclusive of the fees in the Class Action Litigation for which Zurich remains primarily responsible, for the services set forth above. The firm received payment of $100,000 from the Debtor to be applied towards its services on or about April 17, 2012. As of the date of the bankruptcy petition, combined accounts receivable and work in process on Cordillerarelated matters, exclusive of the Zurich portion for the Class Action Litigation, was approximately $650,000. The Firm has agreed to not collect any outstanding pre-petition balance owing by the Debtor, although certain of the non-debtor affiliates, including Wilhelm, remain obligated to the firm for payment of such services. The Firm, unlike the other professionals in the Case, did not require a pre-petition retainer for the Case, and the Firm has no agreement with anyone to pay or guaranty the payment to the Firm of its fees incurred in the Case. Contrary to the assertion in the objections, the Firm has taken

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its duties to the Debtor, the estate and its creditors to the highest level, leaving itself as risk, with no guaranty, for a successful result in the Case. The objections to Foley's employment seem to suggest that, since the Member Representatives and the OCC believe that the Debtor's ability to "resolve" its disputes with its members is central to Debtor's reorganization, that Foley's participation in the defense of this litigation on behalf of the Debtor creates a conflict because of the dual representation of the Debtor, Wilhelm and the other affiliates who are defendants. Although nothing could be further from the truth, to avoid any possible concern in this regard, if it would provide greater comfort to the Court, the Office of the United States Trustee and other parties in interest, Foley will immediately withdraw from its role as supporting co-counsel in the defense of the Class Action Litigation. Of course, to the extent that the resolution of that litigation is indeed central to the reorganization and related to the Case (e.g. treatment of claims and the like), it will be the estate, and not Zurich, who will bear the burden of the fees associated with that matter once the withdrawal is effectuated. Of course, Foley's knowledge of the details and facts of that case will be very helpful to Sender & Wasserman in their handling of the Case as lead Chapter 11 counsel. 2. Unrelated Representation of Affiliated Entities. a. Past Representation. Roaring Fork Club. Foley represented

Wilhelm and his related entities in a connection with various ongoing operational matters involving the Roaring Fork Club in Basalt, Colorado. Foley's involvement was limited. Foley was not involved (and therefore did not represent Wilhelm and his related entities) in the original development of the Roaring Fork Club. Furthermore, Foley was not involved (and did not represent Wilhelm and his related entities) in the disposition of their interest in the Roaring Fork Club to his joint venture partner. Cordillera Premier and Charter Members in good standing have limited rights under their membership arrangements to play golf at Roaring Fork, but Foley has no involvement with and no
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longer represents any party relative to the Roaring Fork Club, and this matter was closed pre-petition. b. Board Membership. Van Tengberg, a partner at Foley, serves as

one of three independent and neutral board members of WFP Investments, an entity associated with the Wilhelm family and certain of its family members. WFP Investments does not have any ownership or other equity interest in Debtor or Cordillera or in any of the other entities affiliated with Debtor or Cordillera. WFP Investments only involvement with Debtor and Cordillera is that WFP Investments is one of the coguarantors of the Alpine Bank Loan and the Rush Trust Loan, which was required by the applicable lenders. As disclosed in the Application, to avoid any possible concern in this regard, if it would provide greater comfort to the Court, the Office of the United States Trustee and other parties in interest, Mr. Tengberg will resign his position as a neutral board member in WFP Investments. c. Mayacama Golf Club, LLC. Foley represents Wilhelm and related

entities in connection with Mayacama Golf Club located in Northern California. Foley's involvement has been limited. Foley was not involved (and therefore did not represent Wilhelm and his related entities) in the original development of Mayacama Golf Club. Furthermore, all of the operational control and decision making authority concerning Mayacama Golf Club is currently held by the joint venture partners in Mayacama Golf Club. In other words, neither Wilhelm nor any of his affiliates have any voting control or decision making authority as to Mayacama Golf Club. Currently, the joint venture partner in Mayacama Golf Club is selling its interest, and Foley represents Wilhelm and his entities in that matter. The lawyers in Foley primarily responsible for that matter are not working on the bankruptcy matter, and the matter primarily involves the sale of the joint venture partner's interest in Mayacama Golf Club. Wilhelm and his affiliates are not selling or otherwise disposing of their interest in Mayacama Golf Club and will remain involved. There is no guarantee that the transaction will close. Nevertheless, to avoid
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any possible concern in this regard, if it would provide greater comfort to the Court, the Office of the United States Trustee and other parties in interest, Foley will immediately withdraw from its role in that transaction. 3. Foley's Economic Relationship with Wilhelm. The objecting parties

insinuate that, because of the alleged significant economic importance of Wilhelm to the Firm, the Firm could or would put the interests of the Debtor, its estate and creditors. The facts suggest the opposite. Foley is a firm of approximately 900 lawyers with 22 offices worldwide. Wilhelm and his entities are but a few of the approximately 8,000 clients of the Firm. The Firm takes great pride in that it endeavors to provide the highest level of personal service to its clients, and prides itself that each and every client of the Firm is made to feel that they are the Firm's most important client, and the Firm tries to prove that to its clients everyday by making all of its lawyers available to its clients on a 24/7 basis. However, the assertion that Wilhelm is such an important client, or such an economic engine, that the Firm or any of its lawyers trade its integrity because of this alleged significance, is objectionable, unsubstantiated and unsupportable. The United States Trustee expressed confusion as to the Firm's intention in its disclosures regarding Court approval of its representation in matters outside the bankruptcy matter that was not the intention. At least when the Application was pending in Delaware, and before the decision to have Sender & Wasserman serve as lead counsel to the Debtor, the Firm sought to have this Court confirm its appointment in this Case notwithstanding its disclosure of its role in the Class Action Litigation and related and unrelated matters. The Firm's willingness to withdraw for the ancillary representations of Wilhelm and his affiliated entities, in the Class Action Litigation and the unrelated representations, evidences the Firm's commitment to the Debtor and the reorganization of the Debtor's estate. Wilhelm and his entities have been clients of Foley since in or about January 2004, although Mr. Tengberg's representation of Wilhelm and
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certain affiliates predates that date, before Mr. Tengberg joined Foley. Aggregate billings in all Wilhelm and affiliated matters in fiscal year 2011 amounts to only .0003 of Foley fiscal 2011 year billings; and even if one aggregates total of all gross billings to Wilhelm and his affiliates over the 8-year period since 2004, as a percentage of Foley's billings in fiscal year 2011, that would have amounted to only approximately .012 of Foley's 2011 fiscal year billings. To suggest that the Firm, or any lawyer in it, would jeopardize its stellar reputation for providing legal services of the highest quality and with the highest degree of ethics, boarding on the offensive. Furthermore, in this Case, the fear complained about is tempered and mitigated by the fact that the Firm will serve in the role of supporting counsel to Mr. Sender. The Firm would expect Sender & Wasserman, as an officer of this Court and as a distinguished, well respected and experienced legal professional and trustee, to report to the Court any concern of any nature. The Firm has no concern that any circumstances will arise that will require any such report to be made. IV. CONCLUSION This is not a case where the Debtor seeks to employ Foley as its exclusive bankruptcy counsel. To the contrary, the Debtor seeks to employ Foley as supporting counsel to its lead counsel, Sender & Wasserman. Foley asserts that the Firm is disinterested, and can serve as counsel in this Case under Section 327(a) the Firm does not currently hold or represent any interest adverse to this estate; indeed, the Firm has shown the highest standards of ethics to date by requiring Wilhelm to have independent counsel represent him in the context of his loan to the Debtor and other bankruptcy matters. On a going forward basis, if requested by the Court, the United States Trustee or other parties in interest, the Firm will withdraw from any representation of persons or entities related to the Debtor during the pendency of the Case and while representing the Debtor (as debtor and debtor-in-possession), notwithstanding a written agreement from such entities that the Firm's primary representation is of this Debtor. Further, the Firm
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asserts it can serve in its role as supporting counsel to Sender & Wasserman under Section 327(e) of the Bankruptcy Code. To the extent any of the concerns expressed as to the Firm's "appearance" of impropriety would manifest themselves, there are many checks and balances available in this Case to ensure that the Firm discharges its duties as appropriate. Mr. Sender, lead counsel, will have an active role in ensuring compliance, and commitment to the interests of the Debtor and its estate. The Court can take judicial notice that there is an active Committee in the Case, which will undoubtedly monitor the actions of all counsel in the Case. In exactly this type of Case, where there are significant checks and balances among the parties to move the Case forward to resolution, and where the expertise of co-counsel is clearly of benefit to the estate and its creditors, employment is appropriate. In re 7677 East Berry Avenue Associates, L.P., 419 B.R. 833 (2009). Dated: July 27, 2012

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SENDER & WASSERMAN, P.C. /s/ David V. Wadsworth Harvey Sender, #7546 David V. Wadsworth, #32066 1660 Lincoln Street, Sutie 2200 Denver, CO 80264 Telephone: 303-296-1999 Facsimile: 303-296-7600 Email: dvw@sendwass.com Counsel for Debtor and Debtor in Possession -andChristopher Celentino (CA No. 131688) Mikel Bistrow (CA No. 102978) Dawn A. Messick (CA No. 236941) Admitted Pro Hac Vice 402 West Broadway, Suite 2100 San Diego, California 92101 Telephone: 619-234-6655 Facsimile: 619-234-3510 Email: ccelentino@foley.com Email: mbistrow@foley.com Email: dmessick@foley.com Proposed Counsel for Debtor and Debtor in Possession

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