Hearing Date: May 27, 2009 at 10:00 a.m.

Objection Deadline: May 19, 2009 at 4:00 p.m.

WHITE & CASE LLP

1155 Avenue of the Americas
New York, New York 10036-2787
(212) 819-8200
Glenn M. Kurtz

Wachovia Financial Center, Suite 4900

200 South Biscayne Blvd.
Miami, Florida 33131
(305) 371-2700
Thomas E Lauria (admitted pro hac vice)

ATTORNEYS FOR THE

INDIANA STATE TEACHERS RETIREMENT FUND,
INDIANA STATE POLICE PENSION TRUST, AND
INDIANA MAJOR MOVES CONSTRUCTION FUND

IN THE UNITED STATES BANKRUPTCY COURT

FOR THE SOUTHERN DISTRICT OF NEW YORK

)
In re ) Chapter 11
)
CHRYSLER, LLC, et al., ) Case No. 09-50002 (AJG)
) Jointly Administered
Debtors. )
)

CORRECTED OBJECTION OF INDIANA PENSIONERS TO DEBTORS’

MOTION FOR AN ORDER (A) AUTHORIZING THE SALE OF SUBSTANTIALLY
ALL OF THE DEBTORS’ OPERATING ASSETS, FREE AND CLEAR OF LIENS,
CLAIMS, INTERESTS AND ENCUMBRANCES, (B) AUTHORIZING THE
ASSUMPTION AND ASSIGNMENT OF CERTAIN EXECUTORY CONTRACTS AND
UNEXPIRED LEASES IN CONNECTION THEREWITH AND RELATED
PROCEDURES AND (C) GRANTING CERTAIN RELATED RELIEF

TO THE HONORABLE ARTHUR J. GONZALEZ,

UNITED STATES BANKRUPTCY JUDGE:

The Indiana State Teachers Retirement Fund and the Indiana State Police Pension Trust,

which are fiduciaries for the investment of retirement assets for approximately 100,000 civil

servants, including policeman, school teachers and their families, and the Indiana Major Moves

Construction Fund, an infrastructure construction fund (collectively, the “Indiana Pensioners”),

NEWYORK 7166067 (2K)

by and through their undersigned counsel, hereby file this objection (the “Objection”) to the

Motion of Chrysler, LLC (“Chrysler”) and the above-captioned debtors and debtors in

possession (collectively, the “Debtors”), for an order (A) authorizing the sale of substantially all

of the Debtors’ operating assets, free and clear of liens, claims, interests and encumbrances, (B)

authorizing the assumption and assignment of certain executory contracts and unexpired leases in

connection therewith and related procedures, and (C) granting certain related relief [Docket No.

190] (the “Sale Motion”). In support of their Objection, the Indiana Pensioners respectfully state

and represent as follows:

PRELIMINARY STATEMENT

The Indiana Pensioners are holders of first lien debt, secured by substantially all of the

Debtors’ assets. In their Sale Motion, the Debtors seek authority to sell substantially all such

collateral, and to distribute the proceeds of such collateral to unsecured creditors, primarily trade

creditors and the UAW. Following such proposed sale and distribution, there will be nothing

substantive left in this case. Indeed, the government has repeatedly stated its objective of

reorganizing Chrysler within a 30-day time period. To do so, the government needed to avoid

the requirements of Chapter 11. The government has done exactly that, by seeking approval of a

sub rosa plan without following any of the required procedures for confirmation. The Debtors’

position that its business is effectively a “melting ice cube” provides no grounds of approval of

an illegal sub rosa plan. The courts can approve the sale of “melting” assets, but there is no

authority for approving a distribution scheme in a Section 363 sale. Indeed, not a single court

has ever approved a sale and distribution of proceeds as proposed here.

In addition to being an illegal sub rosa plan, the Debtors’ Sale Motion seeks to extinguish

the property rights of the secured lenders, trampling the most fundamental tenets of creditor

rights in disregard of over 100 years of bankruptcy jurisprudence. The Debtors’ proposed

NEWYORK 7166067 (2K) 2

restructuring of stakeholders’ rights seeks to make payments of billions of dollars to unsecured

creditors, while paying the secured creditors only 29 cents on the dollar.

In addition, the financing proposed by the section 363 sale is illegal. The United States

Treasury Department (the “Treasury Department”) is accessing funds under the Troubled Asset

Relief Program (“TARP”). TARP, however, provides funds only for the purchase of trouble

assets from financial institutions. Chrysler is an automotive company, not a financial institution.

The Treasury Department is also improperly controlling Chrysler, without authority, before it

even purports to purchase any assets. The Debtors’ motion must be denied.

BACKGROUND1

1. On April 30, 2009 (the “Petition Date”), the Debtors filed voluntary petitions for

relief under chapter 11 of the Bankruptcy Code, thereby commencing their respective chapter 11

cases (collectively, the “Chapter 11 Cases”). The Debtors purport to be operating their

businesses as debtors and debtors in possession pursuant to sections 1107 and 1108 of the

Bankruptcy Code. The Chapter 11 Cases are being jointly administered for procedural purposes.

2. Chrysler and certain of its affiliates are parties to that certain Amended and

Restated First Lien Credit Agreement, dated as of August 3, 2007 (as may have been amended or

supplemented, the “Senior Credit Agreement”) with JPMorgan Chase Bank N.A., as

administrative agent (the “Administrative Agent”), and certain lenders party thereto from time to

time (the “Senior Secured Lenders”), under which the Senior Secured Lenders are owed $6.9

billion (the “Senior Secured Debt”) secured by a first lien on substantially all of the Debtors’

assets, including their plants, equipment, inventory, bank accounts, and almost every other U.S.

1
Certain of the facts set forth herein are based upon the representations of the Debtors in the Sale Motion. The
Indiana Pensioners reserve the right to challenge such representations, and nothing herein shall constitute a waiver
of such right.

NEWYORK 7166067 (2K) 3

asset owned by the Debtors (the “Collateral”). (Senior Credit Agreement; Affidavit of Ronald E.

Kolka (“Kolka Aff.”) ¶ 28 [Docket No. 23].)

3. On May 3, 2009, the Debtors filed the Sale Motion. On May 5, 2009, the Court

held a hearing to consider proposed bidding procedures. On May 7, 2009, the Court approved

the bidding procedures and set the hearing to consider the Sale for Motion for May 27, 2009.

I. The Secured Lenders Loan Billions Of Dollars To Chrysler

4. The Indiana Pensioners are holders of first priority secured claims. Their claims

arise out of nearly $10 billion of loans taken in 2007. (Senior Credit Agreement § 2.1; Kolka

Aff. ¶ 26.) These loans financed the purchase of the company, and were hailed at the time for

returning Chrysler to U.S. control.

5. The Senior Secured Lenders made the loans because the Senior Secured Debt was

secured by first priority liens on the Collateral. (Senior Credit Agreement § 3.14; Kolka Aff. ¶

28.) These liens, and the security they afforded, are crucial to the Indiana Pensioners because

they are responsible for investing billions of dollars on behalf of approximately 100,000 of

ordinary Americans, including teachers and police officers. This responsibility caused the

Indiana Pensioners to seek the safety of secured loans, and they paid for this security by

accepting a comparatively low interest rate.

II. The Global Financial Crisis And TARP

6. In December of 2007, less than a month after the Senior Secured Lenders’ loan to

Chrysler, the United States economy entered into the worst recession since the Great Depression,

which resulted in an unprecedented response from the United States government (the

“Government”). Perhaps the most widely reported element of that response was the Emergency

Economic Stimulus Act (“EESA”), which was passed by Congress and signed by President

George W. Bush on October 3, 2008. 12 U.S.C. § 5202. One critical component of the EESA

NEWYORK 7166067 (2K) 4

was the TARP, which gives the Secretary of the Treasury the power to purchase “troubled

assets” from “financial institutions.” 15 U.S.C. § 211. TARP authorized the Government to

inject hundreds of billions of dollars into the national banking system in order to restore

confidence in the economy and reestablish the flow of credit.

7. Chrysler (along with the rest of the automotive industry) suffered tremendous

losses in 2008, following drastic reductions in automobile sales. (See Chrysler Plan for Long-

Term Viability, Feb. 17, 2009 at U32-37 (the “Feb. 17, 2009 Viability Report”); Kolka Aff. ¶¶

55-58.) By the end of 2008, it was very clear that Chrysler was running out of money, as it had

only $1.898 billion of cash left. (Kolka Aff. Schedule 3.)

III. Chrysler Seeks Government Assistance

8. By the fourth quarter of 2008, Chrysler’s deteriorating cash position caused it to

seek financial assistance from the Government. (See Dec. 2, 2008 Viability Report; Kolka Aff. ¶

59.) Shortly before that request, then-Treasury Secretary Henry Paulson testified that TARP

authorized investment in financial institutions, and “auto companies fall outside of that purpose.”

(See Oversight of Implementation of the Emergency Economic Stabilization Act of 2008 and of

Government Lending and Insurance Facilities; Impact on Economy and Credit Availability:

Hearing Before the H. Comm. on Fin. Servs., 110th Cong. 19 (Nov. 18, 2008) (statements of

Henry M. Paulson, Jr.).) Subsequently, Chrysler was instructed to seek Congressional

authorization if it wanted Government assistance.

9. Chrysler then lobbied for such authorization and, although on December 10, 2008,

the House of Representatives passed the Auto Industry Financing Restructuring Act (H.R. 7321,

110th Cong. § 10 (2008)), the Senate did not and the bill was not enacted into law.

10. Less than a week after having failed to obtain congressional authority to provide

financing to Chrysler, the Treasury Department remarkably declared Chrysler, an automobile

NEWYORK 7166067 (2K) 5

company, a “financial institution,” so that the Treasury Department could access TARP funds.

That complete reversal of its prior admission is plainly without merit.

11. On December 31, 2008, Chrysler and the Treasury Department entered into a

Loan and Security Agreement (“Treasury Loan and Security Agreement”), pursuant to which the

Government loaned Chrysler $4 billion on a third-priority secured basis at approximately 5%

interest. (Appendix A, Supplement to Treasury Loan and Security Agreement § 2.01; Treasury

Loan and Security Agreement §§ 2.05, 4.01.) Thus, the Government took a security interest in

Chrysler’s assets that was junior in priority to the existing liens of the Indiana Pensioners.

Although the maturity date of the loan was December 30, 2011, the Government had the right to

accelerate the entire amount due if Chrysler failed to submit a restructuring plan, or “viability

plan,” acceptable to the Government by February 17, 2009 (after the inauguration of a new

president). (Treasury Loan and Security Agreement § 7.20(a); Kolka Aff. ¶ 68.)

12. This loan agreement left Chrysler at the mercy of the Treasury Department in a

number of ways. First, the amount of the loan was not nearly enough to fund a meaningful

restructuring. The $4 billion was simply an interim lifeline that would postpone Chrysler’s

collapse until after the new administration took office in January, 2009. Second, the Treasury

Department would have complete discretion to determine whether Chrysler’s viability plan was

satisfactory. If the Government chose to reject the plan, it would have the right to call the full

amount of the loan. Third, even if Chrysler put forth a reasonable viability plan, the Government

made no commitment to provide the additional funds necessary to allow Chrysler to implement

its plan.

IV. The Government Rejects Chrysler’s Plan And Chrysler Cedes Control

13. Chrysler submitted its plan to the President’s Task Force on the Auto Industry on

February 17, 2009. (Kolka Aff. ¶ 68.) The viability plan submitted by Chrysler called for a

NEWYORK 7166067 (2K) 6

reorganization of Chrysler on a stand-alone basis. Feb. 17, 2009 Viability Report at 13. In the

viability plan, Chrysler admitted that it could not survive absent relief from the Senior Secured

Lenders’ debt, the debt owed under the Treasury Loan and Security Agreement, and the

obligations owed to the United Auto Workers’ Voluntary Employment Benefit Association

(“VEBA”). (Kolka Aff. ¶¶ 79, 80.) In that regard, Chrysler stated its intention of obtaining $50

billion of aggregate relief from those three lender groups, and speculated that the debt would be

exchanged for some combination of common stock, preferred stock, new debt, and cash. (Feb.

17, 2009 Viability Report at 13.) Chrysler also stated that during the course of this

reorganization and following it, Chrysler would seek to finalize an alliance with Fiat S.p.A

(“Fiat”). (Feb. 17, 2009 Viability Report at 13, 81-97).

14. On March 30, 2009, newly-elected President Barack Obama announced the

rejection of Chrysler’s viability plan. The President sought to override the determination by

Chrysler’s management that Chrysler was viable as a stand-alone going concern. (See Remarks

by the President on the American Automotive Industry (March 30, 2009),

http://www.whitehouse.gov/the_press_office/Remarks-by-the-President-on-the-American-

Automotive-Industry-3/30/09, (the “Remarks by the President”)) The President informed the

country that the Government would give Chrysler thirty days to reach an agreement with Fiat, its

unions, and its creditors (including the Senior Secured Lenders) under which Chrysler and Fiat

would combine to form a new entity. (Id.) Also, the President required Chrysler to restructure

itself in a way that enabled it to (a) gain access to Fiat’s technology, thus enabling Chrysler to

produce the type of smaller cars the Government wants manufactured, (b) satisfy the demands of

unsecured creditors such as the VEBA trust and union laborers, and (c) provide some of

Chrysler’s equity to the Government—all components of a political agenda imposed on

NEWYORK 7166067 (2K) 7

Chrysler’s management. (Id.) In doing so, the President reversed the business judgment of

Chrysler’s management, which had determined a stand-alone reorganization was in the best

interests of Chrysler’s stakeholders. (Transcript of Hearing on First-Day Relief (“Hr’g Tr.”)

122:13-124:21 (May 4, 2009).)

15. Following the President’s announcement, Chrysler began working at the behest of

the U.S. Government to make the President’s strategic vision a reality. (Kolka Aff. ¶¶ 84-85.)

Chrysler’s agreement to this political agenda marked the end of independent management. In

clear violation of its fiduciary duties, Chrysler stopped functioning as a private company and

became an instrument of a third-lien lender, the U.S. Government.

V. Chrysler Files For Bankruptcy To Force Fiat Sale And Wipe Out Secured Debt

16. On April 30, 2009, the Debtors commenced these Chapter 11 cases. As with its

other major business decisions, the timing of the filing and the venue were made by the

Government. (See Press Background Briefing on Auto Industry (April 30, 2009),

www.whitehouse.gov/the_press_office/Background-Briefing-on-Auto-Industry-4/30/2009

(emphasis supplied).) Even though the cases were filed under chapter 11 of the Bankruptcy

Code, it is very clear that the Debtors have no intention (or even possibility) of reorganizing

these estates. Instead, the Debtors have filed the Sale Motion seeking to sell substantially all of

their assets, free and clear of liens, to a newly formed company created for the purpose of this

transaction (“New Chrysler”). (Sale Motion at 57; Kolka Aff. ¶ 88).

17. The purpose of this transaction is to transfer value from the Senior Secured

Lenders’ collateral to junior Chrysler stakeholders without regard to the well established legal

priority of creditor claims. For example, though the Senior Secured Lenders will recover only

29% of their secured claims, Chrysler’s unsecured creditors will receive over $20 billion over

time. Robert Manzo, the Debtors’ financial advisor, testified that over $20 billion in liabilities

NEWYORK 7166067 (2K) 8

would be assumed and paid out by New Chrysler with respect to worker and retiree healthcare

and other benefits, prepetition auto parts and service supplier invoices, warranty and parts

obligations, and pension obligations. (Hr’g Tr. 236:7-238:25; 242:16-244:20.) In particular, the

VEBA trust (which has an unsecured claim of approximately $10 billion), will receive a new

note with a value of $4.5 billion as well as 55% of the equity interest in New Chrysler. (Hr’g Tr.

234:3-235:6.) Fiat, one of the Debtors’ foreign competitors, is slated to receive 20% of New

Chrysler (with the right to acquire a total of 51%) in exchange for granting access to its “small

car” technology. (Id.) Fiat is not paying any cash for its stake in New Chrysler. (Id.) The

Treasury Department, a creditor with liens on the Collateral that are still junior to those of the

Senior Secured Lenders, is slated to receive an 8% equity interest in New Chrysler. (Id.)

18. Following the sale the Debtors will cease to function as a going concern and will

be left with only those assets New Chrysler deems essentially worthless. The Debtors describe

the sale as of “substantially all” of their assets. (Id.)

19. Even though this transaction will reorder the economic interests of every Chrysler

stakeholder, the Debtors have ignored fundamental issues related to this transaction. The

Debtors made no effort to determine whether selling its assets to New Chrysler as a going

concern would bring creditors a better recovery than a liquidation of Chrysler’s component parts.

(Hr’g Tr. 252:3-253:18.) Indeed, the Debtors cannot make this judgment, as they claim not to

know either the liquidation value or the going concern value of the company. (Hr’g Tr. 251:7-

252:18) Given this, it is not surprising that the Debtors admit to not having considered its

fiduciary duty to work for the benefit of all stakeholders or how to protect against conflicts of

interest among various stakeholders. (H’rg Tr. 256:23-258:1.)

NEWYORK 7166067 (2K) 9

 20. The Debtors have likewise ignored the structure of the sale transaction. The

Debtors’ chief financial officer does not know the value of New Chrysler, the amount of debt it

can support, or the value of the New Chrysler stock being distributed under the sale transaction

or why it was allocated as proposed in the Sale Motion. (Hr’g Tr. 235:9-236:6.) The Debtors

did not play any role in negotiating the capital structure of New Chrysler and did not decide what

any of its stakeholders would receive as part of the transaction. (Hr’g Tr. 235:9-236:6; 246:10-

19; 130:16-23.)

21. The Debtors abdicated each of these critical management decisions to the

Treasury Department, whose only legally cognizable interest in these cases is that of a third-lien

lender.

VI. The Government Strong Arms Lenders To Consent To Its Plan

22. Unlike any other bankruptcy in history, Chrysler’s bankruptcy was announced by

the President of the United States. President Obama’s announcement made clear that he had

made the decision to put Chrysler into bankruptcy. He blamed this decision on certain Senior

Secured Lenders that had not received TARP funds and, therefore, had not bowed to the

Government’s pressure to accept an unfair 29 cents recovery where unsecured creditors were

receiving all recoveries. The President branded those Senior Secured Lenders with fiduciary

duties to their own investors as “speculators” who were unwilling to make “sacrifices.”

(www.whitehouse.gov/the_press_office/remarks-by-the-president-on-the-Auto-Industry

4/30/2009.) He accused these lenders of refusing to compromise and instead seeking “an

unjustified taxpayer-funded bailout.” Id. This was not true.

23. First, the Senior Secured Lenders not accepting the unfair deal—including the

Indiana Pensioners—are not “speculators.” They invested in first-lien secured debt, which is (or

at least should be) a conservative investment. Second, certain of the Senior Secured Lenders did

NEWYORK 7166067 (2K) 10

offer to compromise. They offered to accept a 50% reduction of their debt, even though they

might receive a better recovery in chapter 7 liquidation. Their offer was in stark contrast to other

Chrysler stakeholders, whose “compromise” will enable them to receive a much larger recovery

then they are entitled to receive under the Bankruptcy Code. Finally, the Indiana Pensioners

have never sought a Government bailout. Indeed, they are among the few Chrysler stakeholders

that can make that statement. Unlike Chrysler and the TARP banks, who accepted billions of

taxpayer dollars, the Indiana Pensioners have not received a dime of bailout money from the

Government. To the contrary, it was the Government that was taking from them. Under the

Government’s plan, billions of dollars of collateral belonging to the Senior Secured Lenders will

be taken away and given to unsecured and junior lien creditors and (ironically) Fiat, a foreign

automaker. Because certain of the Senior Secured Lenders asked to be paid for their interests in

that collateral, they were vilified.

OBJECTION

I. The Proposed Sale Constitutes An Illegal Sub Rosa Plan That Distributes
The Value Of The Collateral Among Creditor Classes

24. An expedited sale of substantially all of a debtor’s assets, coupled with a

distribution to the debtor’s creditors of the value derived from the sale, which effectively

terminates the debtor’s business, is universally recognized as an impermissible sub rosa plan of

reorganization. Here, the proposed sale goes far beyond what courts permit for an expedited

sale. And it is far more than a sale of assets to preserve the value of a wasting asset, which is the

conventional rationale for expedited sales under section 363. Instead, the proposed sale

transaction is part of a multi-faceted plan that would allocate the value of the on-going enterprise

and virtually all of its assets among creditor classes without the protections of the plan process.

NEWYORK 7166067 (2K) 11

 A. The Debtors Attempt To Short Circuit The Plan Process

25. As shown below, courts have refused to approve section 363 sales that “short

circuit” the requirements of chapter 11. The sale proposed by the Debtors is designed primarily

to benefit certain junior unsecured creditors, without affording the Senior Secured Lenders the

protections and requirements of a plan, disclosure statement and confirmation procedures as

contemplated in sections 1122 to 1129 of the Bankruptcy Code.

26. The seminal case prohibiting sales as sub rosa plans is Braniff: “The debtor and

the Bankruptcy Court should not be able to short circuit the requirements of Chapter 11 for

confirmation of a reorganization plan by establishing the terms of the plan sub rosa in

connection with a sale of assets.” PBGC v. Braniff Airways, Inc. (In re Braniff Airways, Inc.),

700 F.2d 935, 940 (5th Cir. 1983). In Braniff, the terms of the proposed sale included (a) the

issuance of scrip that would only be used in a plan and only to fund obligations to former

employees and shareholders, (b) that debt would be required to vote a portion of its deficiency

claims in favor of any future plan approved by a majority of the Official Committee of

Unsecured Creditors, and (c) releases in favor of Braniff and its directors and officers. Id. at

939-40. The court recognized the potential for mischief if a section 363 sale of substantially all

of a debtor’s assets is not closely scrutinized. The court held that where a proposed sale:

attempts to specify the terms whereby a reorganization plan is to be adopted, the

parties and the district court must scale the hurdles erected in Chapter 11 . . . .
Were this transaction approved, and considering the properties proposed to be
transferred, little would remain save fixed based equipment and little prospect or
occasion for further reorganization.

Id. at 940; see also In re Abbotts Dairies of Pa., 788 F.2d 143, 150 (3d Cir. 1986) (holding that

the “good faith” requirement of a section 363 sale is to be used to assure that by means of an

asset sale a debtor does not abrogate the protections afforded to creditors by section 1129 of the

Bankruptcy Code and the plan confirmation process).

NEWYORK 7166067 (2K) 12

 27. The court’s analysis in In re Westpoint Stevens Inc., 333 B.R. 30 (S.D.N.Y.

2005), is particularly instructive with respect to the increased scrutiny that must be applied to the

sale of substantially all of a company’s assets outside the context of a chapter 11 plan. In

Westpoint, the bankruptcy court approved a sale of substantially all of the debtors’ assets in

exchange for cash and a transfer of certain unregistered securities and subscription rights to

acquire securities of the corporate parent of the purchaser. Id. at 33-34. The sale order (i)

provided that certain secured creditors would receive replacement liens in the securities, (ii)

placed a value on the securities, (iii) directed a distribution of a portion of the securities to the

senior secured creditors in full and complete satisfaction of their claims, and (iv) a partial

distribution of the securities to junior lienholders, free and clear of the senior secured creditors’

liens. Id.

28. The senior secured creditors appealed, arguing that the sale order converted more

than $240 million of secured monetary claims against the debtors into an illiquid minority equity

interest in the parent of successor entities of the debtor. Id. at 34. The district court for the

Southern District of New York reversed, holding that the rights of the senior secured creditors

could not be abrogated and that the bankruptcy court lacked authority to approve such a

transaction under section 363 of the Bankruptcy Code. The court then warned of the dangers of

a “powerful creditor” and debtor creating a proposed sale to create value for “favored

constituencies”—the very situation the instant case presents:

The Bankruptcy Court pointed to no authority, nor has this court despite the
extensive research efforts of counsel and the undersigned’s own chambers found
any, standing for the proposition that an action in permanent derogation of a
senior creditor’s contractual rights can be forced upon that creditor for the
purpose of providing ‘adequate protection’ to a junior creditor . . . . Taken to its
logical extreme, the Bankruptcy Court’s notion of adequate protection would
allow a powerful creditor and a debtor anxious to achieve some value for its
favored constituencies to run roughshod over disfavored creditors’ rights, so long

NEWYORK 7166067 (2K) 13

 as a section 363(b) asset sale transaction could be defended as an exercise of
reasonable business judgment in the context of dire economic circumstances.

Id. at 49-50.

29. The district court also reversed the provisions of the sale order relating to

imposition of the distribution, claim satisfaction and lien-elimination provisions, holding that

nothing in sections 363 or 105 of the Bankruptcy Code provides authority to impair the claim

satisfaction rights of objecting creditors or to eliminate the replacement liens granted by the

court. Id. at 55. Specifically, “section 363(b) is not to be utilized as a means of avoiding Chapter

11’s plan confirmation procedures.” Id. at 52. As the Westpoint court explained, “[w]here it is

clear that the terms of a section 363(b) sale would preempt or dictate the terms of a Chapter 11

plan, the proposed sale is beyond the scope of section 363(b) and should not be approved under

that section.” Id.; see also Clyde Bergemann, Inc. v. The Babcock & Wilcox Co. (In re The

Babcock & Wilcox Co.), 250 F.3d 955, 960 (5th Cir. 2001) (“[T]he provisions of § 363 . . . do

not allow a debtor to gut the bankruptcy estate before reorganization or to change the

fundamental nature of the estate’s assets in such a way that limits a future reorganization plan.”);

Institutional Creditors of Continental Air Lines, Inc. v. Continental Air Lines, Inc. (In re

Continental Air Lines, Inc.), 780 F.2d 1223, 1226-28 (5th Cir. 1986) (“When a proposed

transaction specifies terms for adopting a reorganization plan, ‘the parties and the district court

must scale the hurdles erected in Chapter 11.’ ” (citations omitted) “[A] debtor in Chapter 11

cannot use § 363(b) to sidestep the protection creditors have when it comes time to confirm a

plan of reorganization . . . .”).

30. As the court further explained, section 363 cannot be used to abrogate Chapter 11

plan protections: “If a debtor were allowed to reorganize the estate in some fundamental fashion

pursuant to § 363(b), creditor’s [sic] rights under, for example 11 U.S.C. §§ 1125, 1126,

NEWYORK 7166067 (2K) 14

1129(a)(7), and 1129(b)(2) might become meaningless. Undertaking reorganization piecemeal

pursuant to § 363(b) should not deny creditors the protection they would receive if the proposals

were first raised in the reorganization plan.” Id.

31. The Westpoint court’s analysis is on point here. Under the transaction proposed

by the Debtors, the Debtors would sell substantially all of their assets—including the

Collateral—to New Chrysler. The Debtors then propose that New Chrysler would provide the

Senior Secured Lenders with $2 billion—far less then the current amount of $6.9 billion due and

owing—while satisfying favored unsecured creditors in the amount of over $20 billion. (See

Sale Motion, at ¶¶ 41 & 58.) Just as in Westpoint, the Debtors cannot use Section 363 to force

the Senior Secured Lenders to take a distribution of other property in satisfaction of their liens.

Such a transaction is an impermissible sub rosa plan that, if approved, would abrogate the

Chapter 11 plan protections of section 1129 of the Bankruptcy Code.

B. The Proposed Allocations Among Creditor Classes Violate The Priority

Scheme Established By The Bankruptcy Code

32. The Sale Motion dedicates the first five pages of the argument section to the

proposition that reorganization is an important object of bankruptcy. Yet the Debtors

conveniently ignore that the equitable remedies that may be available in a chapter 11 case to

achieve the goal of reorganization are circumscribed by the Bankruptcy Code. Norwest Bank

Worthington v. Ahlers, 485 U.S. 197, 202 (1988). The U.S. Supreme Court in Ahlers rejected a

plan which sought to favor certain equity holders over certain creditors based on the purported

contribution of future “labor, experience, and expertise.” Id. at 199, 204-05. The Court held that

“whatever equitable powers remain in the bankruptcy courts must and can only be exercised

within the confines of the Bankruptcy Code” and that a “fair and equitable” reorganization is one

which complies with the Bankruptcy Code. Id. at 206-207.

NEWYORK 7166067 (2K) 15

 33. Here, the Debtors specifically seek to obtain the benefits of the section 1129

confirmation process, through an accelerated section 363 transaction, while flatly ignoring the

requirements and creditor protection of section 1129 of the Bankruptcy Code.2 Among other

things, allowing the Debtors to ignore the priority scheme established by the Bankruptcy Code

while selling substantially all of their assets, in permanent derogation of the Indiana Pensioners’

property rights, would turn the law on its head.3 Accordingly, the sale should not be approved

except through the plan process, which assures creditors and other parties in interest full

disclosure, the opportunity to vote on their fates and the protections of a fully noticed

confirmation process. Indeed, as an initial matter, the Administrative Agent has taken the

position that the objecting Senior Secured Lenders do not even have the right to object because

the Senior Credit Agreement permits the sale to be approved by Required Lenders (51%) and

such approval has already been obtained. Clearly, such an argument would be irrelevant if the

transaction were properly put forth as a plan, and the very fact that the argument is being made is

evidence of the fact that the transaction has at least in part been structured so as to eliminate (or

clearly has the effect of eliminating) voting and objection rights that would otherwise exist.

Moreover, if a majority in number rejected the plan, then the plan could only be confirmed if the

Senior Secured Lenders got the indubitable equivalent for their secured claims, and to the extent

that did not reflect their full claim amount, their deficiency claim could not be unfairly
2
Section 1129(b)(1) of the Bankruptcy Code requires, among other things, that a plan does not discriminate
unfairly among similarly situated creditors and is fair and equitable. Here, the proposed transaction violates both
principles. Not only does the transaction improperly provide value to unsecured creditors at the expense of the
Senior Secured Lenders, such as the Indiana Pensioners, but it also favors certain unsecured creditors over others,
including any potential deficiency claims.
3
The absolute priority rule is a fundamental tenet of bankruptcy law. The absolute priority rule provides that “the
holder of any claim or interest that is junior to the claims of [a] class will not receive or retain under the plan on
account of such junior claim or interest any property.” In re Adelphia Communications Corp., 544 F.3d 420, 427 n.
5 (2d Cir. 2008) (citing 11 U.S.C. § 1129(b)(2)(B)(ii)) (internal quotations omitted). “A court may approve such a
compromise or settlement only when it is fair and equitable.” Id. (internal citations omitted). “The words ‘fair and
equitable’ are terms of art-they mean that ‘senior interests are entitled to full priority over junior ones.’” Id. (citing
SEC v. Am. Trailer Rentals Co., 379 U.S. 594 (1965); Protective Committee v. Anderson, 390 U.S. 414 (1968)).

NEWYORK 7166067 (2K) 16

discriminated against vis-a-vis other pari passu unsecured claims (such as trade claims and the

VEBA claim). The proposed sale provides no such protection before substantially all the value

of the Debtors’ estates is distributed out to other stakeholders in satisfaction of their claims.

34. The flaw in the Debtors’ logic in support of the sale is further exposed by the fact

that the Senior Secured Lenders’ claims are supposedly getting full satisfaction (based on a

disputed liquidation value). First of all, in a contested plan confirmation process, the Senior

Secured Lenders would be able to fully test and challenge the Debtors’ view of liquidation value;

an opportunity the present process deprives them of. More importantly, however, assuming the

validity of the Debtors’ view, there is no provision for the treatment of the Senior Secured

Lenders’ approximately $5 billion deficiency claim even though other substantial unsecured

claims are going to receive significant consideration. Results so patently offensive to the

fundamental principles of the chapter 11 process should not be permitted—at least not without

all the protections of the chapter 11 plan process.

II. The Government’s Actions Exceed Its Statutory Authority and Are Improper

35. It is axiomatic that the Executive Branch’s authority must derive either from an

act of Congress or from the Constitution itself. Youngstown Sheet & Tube Co., 343 U.S. 579,

585 (1952). As cautioned by Justice Jackson in Youngstown, in language that is equally

applicable here:

That comprehensive and undefined presidential powers hold both practical

advantages and grave dangers for the country will impress anyone who
has served as legal adviser to a President in time of transition and public
anxiety.

* * *

The opinions of judges, no less than executives and publicists, often suffer
the infirmity of confusing the issue of a power’s validity with the cause it
is invoked to promote, of confounding the permanent executive office
with its temporary occupant. The tendency is strong enough to emphasize

NEWYORK 7166067 (2K) 17

 transient results upon policies—such as wages or stabilization—and lose
sight of enduring consequences upon the balanced structure of our
Republic.

36. It is this very infirmity that the Government apparently seeks to exploit in this

case. The assault on the contract rights of the Senior Secured Lenders here is of particular

concern. As James Madison wrote in the Federalist Papers in 1788, “laws impairing the

obligation of contracts are contrary to the first principles of the social compact, and to every

principle of sound legislation.” THE FEDERALIST No. 44 (James Madison).

37. Here, the Executive Branch relies on TARP. TARP, however, limits the spending

to purchases of “troubled assets” of “financial institution[s]” only. 12 U.S.C. § 5211(a). Here,

the EESA was explicit that troubled assets only were to be purchased from “financial

institution[s].” 12 U.S.C. § 5211(a)(1).

38. And the EESA expressly lists the types of entities that are financial institutions as

“any bank, savings association, credit union, security broker or dealer, or insurance company”

clearly not encompassing automakers. Another federal statute the Bank Holding Company Act

(“BHCA”), further illustrates the definition of financial institution, defining the activities that are

“financial in nature” as including:

(A) Lending, exchanging, transferring, investing for others, or safeguarding

money or securities.

(B) Insuring, guaranteeing, or indemnifying against loss, harm, damage,

illness, disability, or death, or providing and issuing annuities, and acting
as principal, agent, or broker for purposes of the foregoing, in any State.

(C) Providing financial, investment, or economic advisory services, including

advising an investment company (as defined in section 3 of the Investment
Company Act of 1940 [15 U.S.C.A. § 80a-3]).

(D) Issuing or selling instruments representing interests in pools of assets

permissible for a bank to hold directly.

(E) Underwriting, dealing in, or making a market in securities.

NEWYORK 7166067 (2K) 18

 (F) Engaging in any activity that the Board has determined, by order or
regulation that is in effect on November 12, 1999, to be so closely related
to banking or managing or controlling banks as to be a proper incident
thereto (subject to the same terms and conditions contained in such order
or regulation, unless modified by the Board).

(G) Engaging, in the United States, in any activity that—

(i) a bank holding company may engage in outside of the United

States; and

(ii) the Board has determined, under regulations prescribed or

interpretations issued pursuant to subsection (c)(13) of this section
(as in effect on the day before November 12, 1999) to be usual in
connection with the transaction of banking or other financial
operations abroad.

12 U.S.C. § 1843(k)(4).4 Again, making and selling cars obviously does not qualify.

39. That TARP was aimed at financial institutions—that is the types of already

regulated institutions listed in the TARP definition of “financial institution”—and not auto

manufacturers, is also confirmed by the other sections of EESA which expand previously

authorized statutory mandates for the Federal Reserve, FDIC and Treasury Department. See 12

U.S.C. §§ 5233 (EESA § 126 regarding FDIC authority), 5235 (EESA § 129 regarding the

Federal Reserve’s loan authority), 5236 (EESA § 131 regarding the Treasury’s authority as to the

Exchange Stabilization Fund), and 5241 (regarding an increase in FDIC deposit and share

insurance).

40. In his testimony before Congress on November 18, 2008, Treasury Secretary

Paulson unequivocally stated “that the auto companies fall outside that purpose [of TARP].”

(See Oversight of Implementation of the Emergency Economic Stabilization Act of 2008 and off

4
The BHCA also includes certain other categories of activity that are considered “financial in nature,” which relate
to certain types of potential acquisitions by bank holding companies, and do not affect the analysis here. See 12
U.S.C. § 1843(k)(4)(H)-(I).

NEWYORK 7166067 (2K) 19

Government Lending and Insurance Facilities; Impact on Economy and Credit Availability:

Hearing Before the H. Comm. on Fin. Servs., 110th Cong. 19 (Nov. 18, 2008)).

41. The House of Representatives further reiterated this inescapable conclusion when

it attempted to authorize the Executive Branch to bailout the automotive manufacturing industry

after enacting TARP, an act that would have been unnecessary if TARP was available for such

purpose. The Auto Industry Financing and Restructuring Act, H.R. 7321, 110th Cong. § 10

(2008), passed by the House of Representatives attempted, and failed, to authorize the Executive

Branch to do what the Treasury Department is attempting to do here. That legislation failed in

the Senate. As a result, the Executive Branch (including the Treasury Department) never

received Congressional authorization to bail out auto manufacturers, as it is attempting to do

here.

42. Even the Treasury Department has recognized that TARP funds are available only

to financial institutions. In its December 18, 2008 determination, Secretary Paulson concluded

that TARP funds would be made available to Chrysler because “such thrift and other holding

companies engaged in the manufacturing of automotive vehicles and the provision of credit and

financing in connection with the manufacturing and purchase of such vehicles are ‘financial

institutions’ . . . .” (Treasury Department Determination dated Dec. 19, 2009 (Docket No. 69, Ex.

1)). The Chrysler entity that extends credit is Chrysler Financial, which is not one of the Debtors

in this case, and is not the recipient of any of the TARP funds. Consequently, under the Treasury

Department’s own determination, TARP funds are not available to fund the Debtors’

reorganization.

43. The Treasury Department now ignores the statutory language, intent, purpose and

its own prior determinations and the failed auto bailout bill, proceeding on the remarkable

NEWYORK 7166067 (2K) 20

position that TARP funds can be used to purchase assets of “any institution” that is “established

and regulated under the laws of the United States and have significant operations in the United

States.” (Statement of the United States Department of the Treasury in Support of the

Commencement of Chrysler LLC’s Chapter 11 Case, Exhibit B [Docket No. 69].). The Treasury

Department has simply, and improperly, read out of the definition of “financial institution” the

word “financial” as well as the list of representative financial institutions that confirms the limits

on the scope of TARP. 12 U.S.C. § 5202(5). The Treasury Department’s “interpretation”

eviscerates the clear Congressional intent of TARP and is squarely at odds with well-settled

principles of statutory construction concerning the definition of “financial institution” as set forth

in the EESA. If the phrase “any institution” were to be interpreted to mean literally any

institution of any nature, regardless of whether it was financial in nature, the qualifier “financial”

and the listing of types of financial institutions that follows would be utterly meaningless and

effectively written out of the statute. See Leocal v. Ashcroft, 543 U.S. 1, 12 (2004) (“we must

give effect to every word of a statute wherever possible”).5

5
1. In Hibbs v. Winn, 542 U.S. 88, 101 (2004), the Supreme Court examined whether the term “assessment” in
the phrase “enjoin, suspend or restrain the assessment, levy or collection of any tax under State law” was so broad as
to signify the entire taxing plan. In rejecting that view, the Court explained:
We do not focus on the word “assessment” in isolation, however. Instead, we follow “the cardinal
rule that statutory language must be read in context [since] a phrase gathers meaning from the
words around it.” General Dynamics Land Systems, Inc. v. Cline, 540 U.S. 581, 596, 124 S.Ct.
1236, 1246, 157 L.Ed.2d 1094 (2004) (internal quotation marks omitted). In § 1341 and tax law
generally, an assessment is closely tied to the collection of a tax, i.e., the assessment is the official
recording of liability that triggers levy and collection efforts.
The rule against superfluities complements the principle that courts are to interpret the words of a
statute in context. See 2A N. Singer, Statutes and Statutory Construction § 46.06, pp. 181-186
(rev. 6th ed. 2000) (“A statute should be construed as that effect is given to all its provisions, so
that no part will be inoperative or superfluous, void or insignificant . . .” (footnotes omitted)). If,
as the Director asserts, the term “assessment,” by itself, signified “[t]he entire plan or scheme
fixed upon for charging or taxing,” Brief for Petitioner 12 (quoting Webster’s New International
Dictionary of the English Language 166 (2d ed. 1934)), the TIA would not need the words “levy”
or “collection”; the term “assessment,” along, would do all the necessary work.
See also Rapanos v. United States, 547 U.S. 715, 731-32 (2006) (noting that the qualifier “navigable” in the term
“navigable waters” is not devoid of significance).

NEWYORK 7166067 (2K) 21

 A. The Sale Motion Violates The Plain Language Of The EESA And
Is An Unconstitutional Taking

44. TARP also contains express language prohibiting the impairment of the Senior

Secured Lenders’ rights, which is being attempted through the guise of the section 363 sale.

Section 119(b)(2) of the EESA provides that “[a]ny exercise of the authority of the Secretary

pursuant to this chapter shall not impair the claims or defenses that would otherwise apply with

respect to persons other than the Secretary.” 12 U.S.C. § 5229(b)(2).

45. As discussed above, if the Debtors are successful in obtaining approval of the

section 363 sale, $2 billion would be distributed to the Senior Secured Lenders, representing

approximately 29% on their Senior Secured Debt. Meanwhile, New Chrysler would receive

billions of dollars in new loans based on the very same Collateral, which would allow New

Chrysler to repay many of the Debtors’ former unsecured creditors at or close to par—and at a

higher recovery rate than paid to the Senior Secured Lenders or than those creditors would have

received under a chapter 11 plan. As such, the Debtors’ plan is to use section 363 to strip itself

of the assets pledged to the Senior Secured Lenders and put those assets to the benefit of

unsecured creditors instead of the Senior Secured Lenders even though the Senior Secured

Lenders will not have been paid in full (including on any unsecured deficiency claims).

46. By mandating a treatment of the Debtors’ assets that precludes any unsecured

deficiency claims of the Senior Secured Lenders from being paid while allowing inferior

creditors to receive substantial value from the estate, the Treasury Department also is causing the

Debtors to ignore the priority rules embodied in the Bankruptcy Code as applied by the Supreme

Court in Bank of America Nat’l Trust & Sav. Ass’n v. 203 North LaSalle Street Partnership, 526

U.S. 434 (1999). There, the court held that a debtor could not refuse to consider alternative plan

structures where the proposed plan permitted the debtor’s pre-bankruptcy equity holders, over

NEWYORK 7166067 (2K) 22

the objection of a senior secured class of creditors, to contribute new capital and receive

ownership interests in the reorganized entity while the senior creditor’s unsecured deficiency

claims went unpaid. As noted above, that is exactly what is being mandated here by the

proposed 363 sale transaction being scripted by the Treasury Department.

47. Not only do the Government’s actions far exceed its statutory authority, they also

subject the Government to potential lender liability and equitable subordination actions. “[A]

creditor will be held to an insider standard where it is found that it dominated and controlled the

debtor.” Official Comm. Of Unsecured Creditors of the Debtors v. Austin Fin. Servs. (in re KDI

Holdings, Inc.), 277 B.R. 493, 511 (Bankr. S.D.N.Y. 1990). When such a creditor

overwhelmingly dominates the debtor, there is a merger of identity and the creditor will be held

to a fiduciary standard. Id. at 512; see also Schubert v. Lucent Techs., Inc. (In re Winstar

Commc’ns, Inc.), 554 F.3rd 382, 411-12 (3d Cir. 2009) (finding “egregious” conduct where the

creditor had exerted such influence and control as to qualify as an “insider” acting to the

detriment of other creditors); In re Process-Manz Press Inc., 236 F. Supp. 333 (N.D. Ill. 1964)

(upholding the Referee’s ruling that the claimant was “in substance the owner” of the bankrupt

and therefore a fiduciary), rev’d on jurisdictional grounds, 369 F.2d 513 (7th Cir. 1966).

48. Here, the Government has taken control over Chrysler’s business, and has used

that control to impose its own plan of reorganization at the expense of other creditors. This

would normally subject a party to liability. See, e.g., Melamed v. Lake County Nat’l Bank, 727

F.2d 1399 (6th Cir. 1984) (finding that lender’s actions to “salvage” the corporate borrower were

sufficient to state a claim of tortious interference with the debtor’s business relationships).

49. The Supreme Court long ago recognized that a secured creditor’s interest in

specific property is protected in bankruptcy under the Fifth Amendment. Louisville Joint Stock

NEWYORK 7166067 (2K) 23

Land Bank v. Radford, 295 U.S. 555, 589, 594 (1935). That case involved a Depression-era

statute that was intended to help bankrupt farmers avoid losing their land in mortgage

foreclosure. But rather than mandate some form of moratorium, which had been upheld, see

Home Building & Loan Ass’n v. Blaisdell, 290 U.S. 398 (1934), the statute in Radford took a

unique approach to the bankruptcy process. The bankrupt debtor could achieve a release of the

security interests either (i) with the lender’s consent, purchasing the property at its then appraised

value by making deferred payments for two to six years at statutorily-set interest rates; or (ii) if

the lender refused the purchase option, by having the bankruptcy court stay the proceedings for

up to five years during which time the debtor could use the property by paying a rent set by the

court, which payments would be for the benefit of all creditors, with a purchase option at the end

of that period. Id. at 575-76.

50. Justice Brandeis noted that the “essence of a mortgage” is the right of the secured

party “to insist upon full payment before giving up his security [i.e., the property pledged].” Id.

at 580. In invalidating the statute, the Court noted that no bankruptcy law had ever “sought to

compel the holder of a mortgage to surrender to the bankrupt either the possession of the

mortgaged property or the title, so long as any part of the debt thereby secured remained unpaid.”

Id. at 581-82. Commenting on the law allowing the debtor to repay less than the full amount

owing and keep the property, the Court also noted that no prior law had “attempted to enlarge the

rights or privileges of the mortgagor as against the mortgagee” including by going beyond

reducing the debtor’s liabilities to “supply [the debtor] with capital with which to engage in

business in the future.” Id. at 582.

51. Holding that secured creditors could not be treated this way, the Court stated that

“[t]he bankruptcy power . . . is subject to the Fifth Amendment,” and that the pernicious aspect

NEWYORK 7166067 (2K) 24

of this law was its “taking of substantive rights in specific property acquired by the bank prior to

the act.” Id. at 589-90.6 Thus, Congress could not pass a law that could be used to deny to

secured creditors their rights to realize upon the specific property pledged to them or “the right to

control meanwhile the property during the period of default.” Id. at 595.7 That is precisely what

the Treasury Department would have Chrysler do here.

52. The Treasury Department is demanding that the Collateral be stripped away from

the Senior Secured Lenders’ liens—thereby impairing the rights of the Senior Secured Lenders

to realize upon those assets—so that it may be put in New Chrysler. The plan is then to use

those assets to benefit unsecured creditors in this proceeding, who will then recover

substantially more than the Senior Secured Lenders, who also will realize nothing on their

unsecured deficiency claims. Radford specifically disallowed this type of procedure as

antithetical to the idea of a lien on property. That the Treasury Department would do this to help

the United States address difficult economic times is not an answer. Indeed, the same

justification was expressly rejected in Radford, where Justice Brandeis noted that a statute which

violated secured creditors’ rights, but which was passed for sound public purposes relating to the

Great Depression, could not be saved because “the Fifth Amendment commands that, however

great the nation’s need, private property shall not be thus taken even for a wholly public use

without just compensation.” Id. at 602.

6
The legislative history relating to adequate protection under section 363 echoes this commitment under the Fifth
Amendment to protecting the value of property pledged to secured creditors. See S. Rep. No. 95-989, at 49, 53,
reprinted in 1978 U.S.C.C.A.N. 5787, 5835, 5839 (citing Radford and finding that “the purpose of the section is to
insure that the secured creditor receives the value for which he bargained”); H.R. Rep. No. 95-595, at 339, reprinted
in 1978 U.S.C.C.A.N. 5963, 6295 (to similar effect).
7
Tellingly, in Wright v. Union Central Life Ins. Co., 311 U.S. 273, 278 (1940), the Court upheld the revised version
of the statute at issue in Radford based on safeguards “to protect the rights of secured creditors, throughout the
proceedings, to the extent of the value of the [pledged] property.”

NEWYORK 7166067 (2K) 25

 B. The EESA And TARP Do Not Authorize The Government to Control
Chrysler Or Its Bankruptcy

53. In addition to the fact that TARP funds cannot be used to purchase troubled assets

of car manufacturers, rather than financial institutions, and that use here improperly impairs the

Senior Secured Lenders’ rights, the statute also does not permit the Treasury Department to take

effective possession of Chrysler, impose new management and dictate the terms of its continued

operations and ultimate survival. See Youngstown, 343 U.S. at 588-89. There is no statutory

authority for the Treasury Department’s actions in effectively causing the marshaling and sale of

the Debtors’ assets by way of a particular sale process so as to ensure that the Senior Secured

Lenders’ rights as first lien secured lenders are paid only 29 cents on the dollar and their

unsecured deficiency claims left unpaid while also ensuring that unsecured creditors who have

no secured status are paid in full or receive equity in New Chrysler. This may be the type of

authority that the Treasury Department or its sub-agencies may exercise with respect to financial

institutions, but those powers come with specific Congressional authorization and are expressly

limited by the scope of the enabling statutes in question. The very specificity of those statutes

shows that Congress knows how to cloak an agency with such powers—something Congress

never did in the EESA or TARP. See, e.g., 12 U.S.C. § 1821(d)(2) (powers of FDIC with respect

to failed depositary institutions); 45 U.S.C. 701, et seq. (“Railroad Reorganization Act”)

(establishing detailed procedures for railroad reorganizations under the bankruptcy laws); 11

U.S.C. § 1163 (detailing authority of Transportation Secretary in railroad bankruptcy

proceeding).

54. Absent such express statutory authority, even the federal banking regulators do

not have unlimited power in marshaling assets and classifying creditors. See, e.g., Wheeler v.

Greene, 280 U.S. 49 (1929) (Federal Farm Loan Bank as receiver had no authority under statute

NEWYORK 7166067 (2K) 26

to maintain suit to enforce stockholders’ liability); Sharpe v. F.D.I.C., 126 F.3d 1147, 1155 (9th

Cir. 1997) (FDIC exceeded statutorily granted powers in attempting to record a reconveyance of

the debtor’s deed of trust for which it did not pay full consideration); Adagio Inv. Holding Ltd. v.

F.D.I.C., 338 F. Supp.2d 71, 73 (D.D.C. 2004) (noting broad FDIC powers under section 1821,

but finding that “none of these broad powers encompasses the right to reclassify deposits without

authorization…”). TARP contains no reference—or even hint—of Treasury Department

authority to direct the course of a Chapter 11 proceeding as to a private company like Chrysler.

C. This Proceeding Also Violates The EESA’s Conflict Of Interest Rules

55. The EESA also provides that in acting, the Treasury Department must avoid

conflicts of interest and must issue regulations designed to manage or prohibit conflicts. 12

U.S.C. § 5218. The relevant regulations relating to the EESA and TARP are found in 31 C.F.R.

Part 31. There, the Treasury Department defined a conflict of interest, inter alia, as “a situation

in which [a] retained entity has an interest or relationship that could cause a reasonable person

with knowledge of the relevant facts to question the retained entity’s objectivity or judgment to

perform under the arrangement.” 31 C.F.R. § 31.201. It also prohibited concurrent conflicts of

interest: “[i]f [a] retained entity advises Treasury Department with respect to a program for the

purchase of troubled assets, the retained entity, management officials performing work under the

arrangement, and key individuals shall not, during the term of the arrangement, sell or offer to

sell, or act on behalf of anyone with respect to a sale or offer to sell, any assets to Treasury under

the terms of that program.” 31 C.F.R. § 31.214.

56. Here, one of the Government’s key legal advisors is Simpson, Thacher & Bartlett

LLP (“STB”). Starting in October 2008, and continuing through the present, STB entered into

two contracts with the Treasury Department to provide it with a broad range of legal advice with

regard to the implementation of the TARP program, including “guidance in the development of

NEWYORK 7166067 (2K) 27

equity and debt investments and co-investment programs instituted pursuant to the Emergency

Economic Stabilization Act of 2008.” See Contract Numbers T0S09007 (Dec. 10, 2008) and

TOFS-09-D-001 (Feb. 20, 2009). In this proceeding, however, STB is now representing the

Administrative Agent for all the Senior Secured Debt that has acted to solicit consents for the

very actions being pursued by the Treasury Department which violate EESA. See (Comments of

Peter V. Pantaleo, Esq., Hr’g Tr. at 28) (“JPMorgan is the first lien administrative agent. . . . [A]t

the company’s request in concluding negotiations over the amount by which the required lenders

would agree to liquidate the collateral in this case in the context of a sale to Fiat, the agent

solicited written consents from each of the holders of the first lien debt”). Neither the

Government nor the Debtors have provided any explanation as to why this overlapping

representation does not create an improper conflict of interest that also infects these proceedings.

III. A Sale Of Substantially All Of A Debtor’s Assets Is Subject To Close Scrutiny

And A Heightened Burden, That Debtors Fail To Satisfy

57. Section 363(b)(1) of the Bankruptcy Code provides the general authority for a

debtor to sell assets outside the ordinary course of business. However, when a debtor proposes

to sell substantially all of its assets and without the structure of a chapter 11 disclosure statement

and plan, courts impose higher scrutiny, recognizing that such a sale constitutes an essential

termination of the debtor’s on-going business, leaving only the orderly distribution of the sale

proceeds to be performed under the law governing the priority of creditors.

A. Close Scrutiny And A Heightened Burden Apply

58. Courts are required to ensure that a debtor does not use the cover of a section 363

sale to effect a plan of reorganization without compliance with the rigors mandated in a judicial

confirmation of a plan. In re Channel One Communications, Inc., 117 B.R. 493, 496 (Bankr.

E.D. Mo. 1990) (citing In re Industrial Valley Refrigeration & Air Conditioning Supplies, Inc.,

NEWYORK 7166067 (2K) 28

77 B.R. 15, 17 (Bankr. E.D. Pa. 1987) (the transaction “must be closely scrutinized and the

proponent bears a heightened burden of proving the elements necessary for authorization.”)); In

re Wilde Horse Enterprises, Inc., 136 B.R. 830, 841 (Bankr. C.D. Cal. 1991); Western Auto

Supply Co. v. Savage Arms, Inc., 43 F.3d 714, 720 n.9 (1st Cir. 1994) (order confirming a

chapter 11 liquidation sale warrants special “bankruptcy court scrutiny”); 3 COLLIER ON

BANKRUPTCY, ¶ 363.02[3]; see, e.g., Stephens Indus., Inc. v. McClung, 789 F.2d 386 (6th Cir.

1986) (due to the fact that “there is some danger that a section 363 sale might deprive parties of

substantial rights inherent in the plan confirmation process, sales of substantial portions of a

debtor’s assets under section 363 must be scrutinized closely by the court”)); In re CGE

Shattuck, LLC, 254 B.R. 5, 12 (Bankr. D. N.H. 2000) (looking through form to substance and

rejecting creditor disclosure that would circumvent the requirements of chapter 11 of the

Bankruptcy Code).

59. The Debtors must prove the following elements to gain approval of the Sale

Motion: (i) the existence of a sound business purpose for conducting the sale without a

disclosure statement and plan; (ii) there has been accurate and reasonable notice of the sale; (iii)

the price to be paid is fair and reasonable; and (iv) the sale will not unfairly benefit insiders or

the prospective purchasers, or unfairly favor a creditor or class of creditors. Channel One,

117 B.R. at 496 (emphasis added); see also In re Engman, 395 B.R. 610, 620 (Bankr. W.D.

Mich. 2008) (sales must be “fair and reasonable in price and made in ‘good faith’” and must be

“in the best interests of the estate and creditors”) (internal quotations and citations omitted). As

demonstrated below, the Debtors cannot satisfy the required elements of a section 363 sale.

60. The proposed sale fails to satisfy the heightened standards applicable to sales in

substantially all a debtor’s assets. As addressed below, (i) the proposed sale violates absolutely

NEWYORK 7166067 (2K) 29

priority, (ii) was not negotiated in good, (iii) does not serve the best interest of the estate and

creditors (other than certain unsecured creditors), (iv) is an illegal sub rosa plan, and (v)

eliminates all of the protections of a Chapter 11 reorganization.

1. No Sound Business Purpose Exists For Approval Of The Sale

Motion And Redistribution Of Value

61. To determine if an asset sale under section 363(b) is permissible, the “judge

determining [the] § 363(b) application [must] expressly find from the evidence presented before

him [or her] at the hearing [that there is] a good business reason to grant such an application.”

Comm. of Equity Sec. Holders v. Lionel Corp. (In re Lionel Corp.), 722 F.2d 1063, 1070-1 (2d

Cir. 1983) (a debtor should not sell substantially all of its assets outside the ordinary course of

business under section 363(b) absent an “articulated business justification”); see also Stephens

Indus., Inc., v. McClung, 789 F.2d 386, 390 (6th Cir. 1986); In re Montgomery Ward Holding

Corp., 242 B.R. 147, 153 (D. Del. 1999); In re Exaeris, Inc., 380 B.R. 741, 744 (Bankr. D. Del.

2008). Here, no legitimate reason exists to take value properly belonging to the Indiana

Pensioners and distribute it to unsecured and junior creditors. Although the Debtors claim that

they are preserving “going concern” value, they have no intention of remaining a going concern.

Instead, they plan to sell everything to New Chrysler, which entity ultimately will benefit from

any “going concern” value purchased by paying junior claims. Preservation of value for a non-

Debtor to the detriment of Senior Secured Lenders hardly can be considered a good business

reason for the estates.

62. Indeed, the Debtors have produced no evidence indicating why the proposed

transaction could not be accomplished in a plan process other than that such sale likely would not

satisfy the Chapter 11 confirmation standards. Courts should not approve proposed sales under

section 363, however, when the proposed transaction would not be approved if proposed in a

NEWYORK 7166067 (2K) 30

plan. See Protective Committee for Independent Stockholders of TMT Trailer Ferry, Inc. v.

Anderson, 390 U.S. 414, 450 (1968) (finding that expedition does not justify abandoning proper

standards); In re Continental Airlines, Inc., 780 F.2d 1223, 1226 (5th Cir. 1986) (“When a

proposed transaction specifies the terms for adopting a reorganization plan, the parties and the

district court must scale the hurdles erected in Chapter 11.”) (internal citation omitted); In re

Lionel Corp., 722 F.2d 1063, 1071 (2d Cir. 1983) (rejecting proposed sale because it “ignores the

equity interests required to be weighed and considered under Chapter 11” and holding that “[t]he

need for expedition . . . is not justification for abandoning proper standards”) (internal citation

omitted).

2. The Debtors Did Not Provide Accurate And Reasonable Notice

63. The Debtors acted as if they were selling a Chrysler LeBaron and not a

multinational corporation with billions of dollars in assets. Indeed, the sales procedures

proposed by the Debtors were designed to do nothing more than give the appearance of

legitimacy to the proposed sale that is nothing more than an illegal sub rosa plan. The sales

procedures effectively precluded anyone but the Government from bidding on the Debtors’

assets, and thus, were inherently unfair and did not comply with the fundamental purpose for

bidding procedures—to maximize the sale price for the Debtors’ assets.

64. The sale procedures provided just over one week for potential bidders to put in a

final offer for substantially all of the Debtors’ assets with no due diligence or financial

contingency. The Debtors themselves recognize this to be absurd. For example, Scott R.

Garberding, Senior Vice President and Chief Procurement Officer, testified that it took four

months and over 200 people to put the Fiat deal together, and acknowledged that a one-week

time period is an enormously shortened time period for a multibillion dollar transaction. (Hr’g

NEWYORK 7166067 (2K) 31

Tr. at 89-92) Mr. Garberding also agreed that one week to conduct due diligence and come

forward with a bid would eliminate bidders. (Hr’g Tr. at 97)

65. To compound the absurdity of seeking bids within a week, the Debtors mandated

virtually every term of a potential bid, with each restriction designed not to generate bids but

rather to discourage them. For example, the Debtors required that the purchase price and terms

as well as the conditions of bids be substantially the same as those set forth in the proposed

Purchase Agreement (even requiring a “redline” of any proposed agreement reflecting changes

against the Purchase Agreement). The Debtors required bids to be made without the protection

of any due diligence, financing contingencies, or other bid protections, another absurdity for bids

amounting to billions of dollars. Finally, the Debtors required a bidder to assume billions in

liabilities held by certain favored unsecured creditors, and assume certain collective bargaining

agreements, whether or not doing so maximizes value for the estates. The Debtors cannot

establish a business reason for requiring competing bids that includes terms that provide no

benefit to the estate, and such requirement simply demonstrates that the Debtors are not

exercising any business judgment, but are merely implementing the direction of the Treasury

Department.

66. Also telling is that the sale procedures provided broad rights to reject bids upon

consultation with, among others, the Treasury Department—one of the sponsors of the Debtors’

proposed sale transaction. The sale procedures simply further evidence the Debtors’ and the

Government’s attempt to push through this Court the prearranged Government-Chrysler-UAW-

Fiat sub rosa plan, without concern for the law.

3. The Sale Price Is Not Fair And Reasonable

67. No evidence exists regarding what value the Debtors could receive, outside of the

proposed sale the Debtors and the Government are bulldozing through this Court. Indeed, the

NEWYORK 7166067 (2K) 32

Debtors’ own analysis indicates that a liquidation of the Debtors (who, according to the Sale

Motion at ¶11, had assets of over $39 billion as of December 31, 2008) could achieve more value

for the Senior Secured Lenders. Hr’g Tr. 235:9—236:6. Even more importantly, though, aside

from the sale price itself, it is the allocation of proceeds that is grossly unfair to the Indiana

Pensioners, as discussed in section 5 below.

4. The Sale And Redistribution Of Value Unfairly Benefits Insiders

Or The Prospective Purchaser

68. Importantly, the sale of assets by the Debtors to New Chrysler is not a sale that

was negotiated by independent parties at arms’ length. Rather, it is a sale that was orchestrated

entirely by the Treasury Department and foisted upon the Debtors without regard to corporate

formalities, the fiduciary duties of the Debtors’ officers and directors or the other important

checks and balances typically found in good faith sales. Indeed, well before the filing, the

Debtors had ceased to function as an independent company and had become an instrumentality

of the Government. President Obama, in his public statements made it clear that the Debtors

would be required to pursue the sale transaction with Fiat and ordered the Debtors to cease all

efforts to pursue any other transaction. Both actions are clearly inconsistent with the

requirements of a good faith sale. And the Government exerted extreme pressure to coerce all of

the Debtors’ constituencies into accepting a deal which is being done largely for the benefit of

unsecured creditors at the expense of senior creditors. Under the circumstances, New Chrysler

simply cannot establish that it is a good faith purchaser in connection with the proposed sale.

5. The Sale And Redistribution Of Value Favors Certain

Creditors And/Or Classes Of Creditors And Is Unfair

69. A fundamental tenet of bankruptcy law is that unfair treatment of creditors is

prohibited, and that the debtors bear the burden to prove that creditors are being treated fairly.

Channel One, 117 B.R. at 496; see also In re Engman, 395 B.R. at 620 (sale must be made in

NEWYORK 7166067 (2K) 33

“good faith” and must be “in the best interests of the estate and creditors”); In re Dow Corning

Corp., 198 B.R. 214, 222 (Bankr. E.D. Mich. 1996) (sale must be “fair and equitable,” “in good

faith” and “in the best interests of the estate”). The Debtors cannot show that the proposed sale

treats the Senior Secured Lenders fairly.

IV. The Debtors Have Failed To Satisfy The Requirements Of 11 U.S.C. § 363(f)

70. A sale free and clear of third party interests must comply with one of the

provisions of section 363(f)(1) though (5). Here, the Debtors rely on subsections (2) and (3)8

that provide as follows:

(2) such entity consents;

(3) such interest is a lien and the price at which such property is to be sold is

greater than the aggregate value of all liens on such property.

11 U.S.C. §§ 363(f)(2)-(3). The Debtors’ proposed sale does not comply with any of these

requirements.9

A. The Debtors Have Failed To Satisfy 11 U.S.C. § 363(f)(2)

71. Section 363(f)(2) authorizes a sale free and clear of the Senior Secured Lenders’

liens only if “such entity consents.” 11 U.S.C. § 363(f)(2). “There is no indication within

Section 363 itself or its underlying legislative history that Congress intended ‘consents’ to have

any meaning other than that which it is commonly understood to have. ‘Consent,’ when used as

a verb, means ‘to give assent or approval.’” In re Roberts, 249 B.R. 152, 155 (Bankr. W.D.

8
To the extent that the Debtors seek to argue for approval under section 363(f)(5) in footnote 10 of the Sale Motion,
that argument fails. Section 363(f)(5) applies only where the secured party can be compelled to have its lien
replaced by a payment or some other interest that provides adequate protection. 11 U.S.C. § 363(f)(5); 3 Collier on
Bankruptcy, ¶ 363.06[6]; see also Clear Channel Outdoor 391 B.R. at 39-40, 44-45 (363(f)(5) applies only when a
proceeding exists to force a creditor’s interest to be completely satisfied without full payment of the amount owed
such as a liquidated damages clause or a buy-out arrangement among partners); see also, Richardson v. Pitt County
(In re Stroud Wholesale, Inc.), 47 B.R. 999, 1003 (E.D.N.C. 1985), aff’d without opinion, 983 F.2d 1057 (4th Cir.
1986) (“money satisfaction” as used in section 363(f)(5) means full satisfaction of an interest).
9
The Sale Motion does not seek relief under 11 U.S.C. § 363(f)(1) or (4).

NEWYORK 7166067 (2K) 34

Mich. 2000) (citing Webster’s Third New International Dictionary (unabridged) (1986))

“[C]onsent’ [as used in § 363(f)(2)] obligates the trustee to approach the lienholder and secure

the lienholder’s assent if the trustee wishes to sell the property free and clear of the lien.” Id.

When a debtor attempts to sell estate property free and clear of the liens of multiple lienholders

pursuant to section 363(f)(2), the debtor must obtain unanimous consent from all lienholders.

See In re Mulberry Corp., 265 B.R. 468, 469 (Bankr. M.D. Fla. 2001) (denying a motion to sell

estate property free and clear of multiple liens pursuant to section 363(f)(2) on grounds that the

debtor failed to obtain unanimous consent of all lienholders to the proposed sale); see also In re

Bobroff, 40 B.R. 526, 528 n.3 (Bankr. E.D. Pa. 1984).

72. Here, the Indiana Pensioners oppose the sale. Thus, the Debtors fail to satisfy the

standard required by section 363(f)(2). To the extent the Debtors contend that consent has

somehow been conferred through the Administrative Agent, that contention is misplaced. The

Indiana Pensioners are parties in interest and have not consented. Yet, the loan agreement

between the Debtors and the Senior Lienholders unambiguously requires, among other things,

that each of the Senior Lienholders must provide “written consent” before the Collateral can be

released.

73. Section 9.1(a) of the Senior Credit Agreement expressly identifies certain

instances where the Administrative Agent may not act on behalf of the Indiana Pensioners. In

pertinent part, section 9.1 provides:

(a) Neither this Agreement, any other Loan Document, nor any terms hereof or
thereof may be amended, supplemented or modified except in accordance with the
provisions of this Section 9.1 or as otherwise expressly provided herein. The
Required Lenders and the Company (on its own behalf and as agent on behalf of
any other Loan Party party to the relevant Loan Document) may, or, with the
written consent of the Required Lenders, the Administrative Agent and the
Company (on its own behalf and as agent on behalf of any Loan Party party to the
relevant Loan Document) may, from time to time, (i) enter into written

NEWYORK 7166067 (2K) 35

 amendments, supplements or modifications hereto and to the other Loan
Documents for the purpose of adding any provisions to this Agreement or the
other Loan Documents or changing in any manner the rights or obligations of the
Lenders or of the Loan Parties hereunder or thereunder or (ii) waive, on such
terms and conditions as the Required Lenders or the Administrative Agent, as the
case may be, may specify in such instrument, any of the requirements in this
Agreement or other Loan Documents or any Default or Event of Default and its
consequences; provided, however, that no waiver and no such amendment,
supplement or modification shall:
...
(iii) reduce any percentage specified in the definition of
Required Lenders, consent to the assignment or transfer by or
release of the Company of any of its rights and obligations under
this Agreement and the other Loan Documents, release all or
substantially all of the Collateral or release all or substantially all
of the Subsidiary Guarantors or Holdings from their obligations
under the Guarantee or the Security Agreement (except as
otherwise provided in the Loan Documents), in each case without
the written consent of all Lenders.

Senior Credit Agreement, § 9.1(a)(iii) (emphasis added). The plain language of section

9.1(a)(iii) unequivocally provides that the Administrative Agent does not have the authority to

release all or substantially all of the Collateral on behalf of any other lender party to the Senior

Credit Agreement without the written consent of all the Senior Secured Lenders. Without that

consent, section 9.1(a)(iii) expressly prohibits the Administrative Agent from engaging in any

acts that would release all or substantially all of the Collateral.

74. Moreover, the Administrative Agent may not consent on behalf of the Indiana

Pensioners to satisfy section 9.1(a)(iii) because such consent is outside the scope of its delegated

powers under the Senior Credit Agreement. Under New York law,10 an agent’s authority to bind

a principal is limited by what powers the principal grants to the agent. In re Parmalat Securities

Litig., 594 F. Supp. 2d 444, 451-52 (S.D.N.Y. 2009) (quoting Merrill Lynch Interfunding, Inc. v.

Argentis, 155 F.3d 113, 122 (2d Cir. 1998) (applying New York law)).

10
New York law applies pursuant to section 9.11 of the First Lien Credit Agreement.

NEWYORK 7166067 (2K) 36

 75. No provision in the Senior Credit Agreement or the accompanying loan

documents expressly delegates to the Administrative Agent the power to release all or

substantially all of the Collateral on behalf of Senior Secured Lenders without each such lender’s

written consent. In fact, as discussed above, section 9(a)(iii) expressly prohibits the

Administrative Agent from taking such action. Based on the clear and unambiguous language of

section 9(a)(iii), the Indiana Pensioners never granted to the Administrative Agent the authority

to release all or substantially all of the Collateral on behalf the Senior Secured Lenders without

all of their written consent. Accordingly, the Administrative Agent cannot consent to the

proposed sale on behalf of the Indiana Pensioners.

76. Indeed, according to the Debtor and the Treasury Department, and reflecting their

knowledge that the credit documents do not permit the Administrative Agent to approve the

proposed sale on behalf of the Indiana Pensioners, the bankruptcy was filed because they did not

get 100% consent from the secured lenders.

B. The Debtors Have Failed To Satisfy 11 U.S.C. § 363(f)(3)

77. Section 363(f)(3) authorizes a sale free and clear of the Senior Secured Lenders

liens only if “the price at which such property is to be sold is greater than the aggregate value of

all liens on such property.” 11 U.S.C. § 363(f)(3). The Debtors selectively identify a handful of

decisions and suggest that the weight of authority supports their argument that section 363(f)(3)

authorizes a sale if the sale price exceeds the economic value of the liens against the assets sold.

It does not. In fact, the Debtors ignore the true state of the law.11

78. The language of section 363(f)(3) is clear (as is the statutory scheme). Most

courts now recognize this clarity and hold that “greater than the aggregate value of all liens”

11
The Debtors abjectly fail to cite any of the decisions that are directly contrary to the proposition of the few cases
supporting the Debtors’ position. This omission of relevant authority is notable and telling.

NEWYORK 7166067 (2K) 37

means the sale must be for more than the entire debt asserted against the property. See Clear

Channel Outdoor, Inc. v. Nancy Knupfer, Chapter 11 Trustee, et al. (In re PW, LLC), 391 B.R.

25, 40-1 (9th Cir. B.A.P. 2008) (holding that section 363(f)(3) of the Bankruptcy Code does not

authorize the sale free and clear of a lienholder’s interest if the price of the estate property is

equal to or less than the aggregate amount of all claims held by creditors who hold a lien or

security interest in the property being sold); see also Matter of Riverside Investment P’ship, 674

F.2d 634, 640-1 (7th Cir. 1982); Richardson v. Pitt County (In re Stroud Wholesale, Inc.), 47

B.R. 999, 1002 (E.D. N.C. 1985), aff’d mem., 983 F.2d 1057 (4th Cir. 1986) (free and clear sale

not allowed unless the sale proceeds will fully compensate all secured lienholders); Scherer v.

Fed. Nat’l Mortgage Ass’n (In re Terrace Chalet Apartments, Ltd.), 159 B.R. 821, 828 (N.D. Ill.

1993) (same); In re Perroncello, 170 B.R. 189, 190-2 (Bankr. D. Mass. 1994) (same); In re

Feinstein Family P’ship, 247 B.R. 502, 508 (Bankr. M.D. Fla. 2000) (same); In re Canonigo, 276

B.R. 257, 262-3 (Bankr. N.D. Cal. 2002) (same); Criimi Mae Servs. Ltd. P’ship v. WDH Howell,

LLC (In re WDH Howell, LLC), 298 B.R. 527, 531 (D. N.J. 2003) (same); In re Healthco Int’l,

Inc., 174 B.R. 174, 176 (Bankr. D. Mass. 1994) (same); In re Heine, 141 B.R. 185, 189 (Bankr.

D. S.D. 1992) (“‘value’ as used in 11 U.S.C. § 363(f)(3) is synonymous with amount”); In re

Julien Co., 117 B.R. 910, 919 (Bankr. W.D. Tenn. 1990) (sale not allowed under section

363(f)(3) because the total liens and interests claimed against the asset exceed the value of the

asset); Matter of Rouse, 54 B.R. 31, 33 (Bankr. W.D. Mo. 1985) (“[I]n order for a sale free and

clear of the liens to be authorized, it must be demonstrated that such a sale has a reasonable

promise of realizing excess value over the balances due on the existing liens which can go into

the bankruptcy estate. When the plaintiffs, according to their own contentions, request to sell the

property for less than the liens, it appears that the prerequisites for a sale free and clear of liens

NEWYORK 7166067 (2K) 38

cannot be met.”); In re Red Oak Farms, Inc., 36 B.R. 856, 857-58 (Bankr. W.D. Mo. 1984) (the

debtors could not sell property of the estate free and clear of all liens because the debtors

contended that the value of the asset did not exceed the amount owed to the lienholder).

Although a select few courts have held that the aggregate value of all liens refers only to the

economic value of such liens, see, e.g., In re Terrace Gardens Park P’ship, 96 B.R. 707(Bankr.

W.D. Tex. 1989), these decisions are not well reasoned or consistent with the plain meaning and

structure of the Bankruptcy Code. The reasoning in the recent decisions (now, the majority of

published decisions) is compelling and should be followed.

79. First, as explained by the court in Clear Channel, “[t]he [Bankruptcy] Code . . .

tends to refer not to the economic value of the property secured by liens but to the value of

claims secured by those liens.” 391 B.R. at 38. The interpretation proffered by Debtors “would

essentially mean that an estate representative could sell estate property free and clear of any lien,

regardless of whether the lienholder held an allowed secured claim,” which is “inconsistent with”

“the context of paragraph (3).” Id. at 40. As held by the court in Clear Channel, if “Congress

had intended such a broad construction, it would have worded the paragraph very differently,”

such as how it worded section 1206 of the Bankruptcy Code (discussed below). Id. at 40, n. 15.

80. Moreover, the language of section 363(f) simply does not justify the sale of

collateral over the objection of an undersecured creditor because the statute expressly requires

that the sale price be greater than, not just equal to, the value of the liens upon the property.12

This condition cannot be met unless the price is greater than the nominal amount of a secured

creditor’s claim because, if a creditor is undersecured, the price can only equal (or be less than) a

secured creditor’s claim. Clear Channel, 391 B.R. at 40-41; WDH Howell, 298 B.R. at 532-33

12
This power to reduce a secured claim to its value is reserved in section 1129(b) of the Bankruptcy Code. It would
be anomalous to permit section 363(f)(3) to be utilized with the same effect as section 1129(b) - - without the due
process requirements of voting and substantive requirements of a plan of reorganization.

NEWYORK 7166067 (2K) 39

(value cannot mean economic value when read in context of preceding term “greater than”

because then the sale price for overencumbered property could never exceed the aggregate value

of the liens on the property). As noted by the court in WDH Howell, “[c]ourts following the

economic value approach have either overlooked or dodged this dilemma . . . .” WDH Howell,

298 B.R. at 533. Just as the courts in the more recent and well reasoned decisions have done,

this Court should “refuse to evade the plain meaning of § 363(f)(3)” in the way the Debtors

suggest. See, e.g., Id.

81. Further, the “face amount” approach is consistent with the language of the statute,

and a contrary interpretation would make section 363(f)(3) a “loophole” permitting a trustee or

debtor to avoid the requirements of section 363(f)(5) through the use of section 363(f)(3).

Perroncello, 170 B.R. at 192.

82. There are other holistic approaches that require an interpretation consistent with

the proposition that section 363(f)(3) requires a sales price in excess of the aggregate amount of

the liens. Specifically, Congress specifically recognized that a sale under 363(f)(3) must exceed

the aggregate amount of the liens by creating an explicit exception to the rule for chapter 12

debtors. 11 U.S.C. § 1206; United States v. Ron Pair Enters., Inc., 489 U.S. 235, 242 n. 5 (1989)

(Congress knows distinction between types of liens, and the language of the Bankruptcy Code

should be interpreted in a way that recognizes that knowledge). Any other approach to the

interpretation of section 363(f) would eviscerate the procedural and substantive protections of

section 1111(b) and 1129.

83. Finally, the reasoning asserted by the court in Terrace Gardens to justify

invocation of the lesser standard assumed that a creditor who disagreed with the proposed sale

had the right to credit bid through section 363(k), which permits the creditor to bid its lien to

NEWYORK 7166067 (2K) 40

head off the sale. 96 B.R. at 713. Should that recourse be disallowed, the conclusion in Terrace

Gardens is even more unjustifiable. Here, the Debtors’ proposed sale, free and clear of liens,

plainly does not exceed the $6.9 billion of Senior Secured Debt, let alone the aggregate value of

all liens on such property to be sold. Thus, the Debtors fail to satisfy the standard required by

section 363(f)(3).

84. Even if the Court follows the approach proffered by the Debtors, the proposed

sale does not qualify under section 363(f)(3). The Debtors propose to sell substantially all of

their assets—including the Collateral—to New Chrysler, which would then provide the Senior

Secured Lenders with $2 billion. See Sale Motion, at 41 & 58. But the value of the Collateral

has not been adequately established, and even according to the Debtors’ own liquidation

analysis, the liquidation value of their assets could exceed $3.2 billion. See Viability Report, at

167. The Senior Secured Lenders could be better off in a straight liquidation of the Debtors’

assets.

V. The Proposed Sale Eliminates The Senior Secured Lenders’ Right

To Credit Bid Granted By Section 363(k)

85. Under a sale pursuant to section 363 of the Bankruptcy Code, a holder of a

secured claim, such as the Senior Secured Lenders, has the right to credit bid for the purchase of

the asset that is the subject of the sale. The secured party’s right to credit bid is expressly

granted by statute:

At a sale under subsection (b) of this section of property that is subject to a lien
that secured an allowed claim, unless the court for cause orders otherwise the
holder of such claim may bid at such sale, and, if the holder of such claim
purchases such property, such holder may offset such claim against the purchase
price of such property.

11 U.S.C. § 363(k). Credit bidding permits a secured creditor to bid its debt and take title

to the property in order to, among other things, protect against a debtor’s sale of its

NEWYORK 7166067 (2K) 41

collateral for less than its debt. The Debtors here propose to abrogate the Indiana

Pensioners’ right to credit bid granted by section 363(k), without compensation or cause.

86. Courts have consistently held that if the creditor has a valid lien on the property,

the secured creditor can credit bid the face amount of its claim, even if the claim is potentially

undersecured. See In re SubMicron Sys. Corp., 432 F.3d 448, 459 (3d Cir. 2006) (“It is well

settled among district and bankruptcy courts that creditors can bid the full face value of their

secured claims under § 363(k).”); In re SunCruz Casinos, LLC, 298 B.R. 833, 839 (Bankr. S.D.

Fla. 2003) (“[A] secured creditor may credit bid the entire amount of its claim, including the

unsecured portion thereof.”); In re Realty Inv., Ltd. V, 72 B.R. 143, 146 (Bankr. C.D. Cal. 1987)

(finding that the “allowed claim” for purposes of credit bidding is the creditor’s total claim

without reference to the “value” of the property); 3 COLLIER ON BANKRUPTCY ¶ 363.09 (15th ed.

rev. 2008). A secured creditor’s claims are treated as equal to cash for the purposes of credit

bidding. See In re HNRC Dissolution Co., 340 B.R. 818 (E.D. Ky. 2006) (“Clearly 11 U.S.C. §

363(k) treats credit bids as a method of payment—the same as if the secured creditor has paid

cash and then immediately reclaimed the cash in payment of the secured debt.”).13

87. The Indiana Pensioners’ right to credit bid cannot be abrogated without same

compensation or adequate protection, yet that is just what the Debtors seek to do through the

proposed sale.

13
The court has discretion to deny the right to credit bid for “cause,” but no cause exists here. 11 U.S.C. §
363(k). Courts have found that cause may exist when: (1) the secured creditor’s liens are in dispute, and in
such circumstances, a court may place conditions on the creditor’s ability to credit bid; (2) the credit bid
prejudices other secured parties with equal priority to the credit bidder; or (3) the creditor has failed to
comply with court-approved bidding procedures. See In re Diebart Bancroft, 1993 WL 21423, *4-5 (E.D.
La. Jan. 26, 1993); In re Taxi Takeout Holdings, 307 B.R. 525, 536 (Bankr. E.D. Va. 2004); Antaues Tech.
Servs., 345 B.R. 556 (Bankr. W.D. Va. 2005); Greenblatt v. Steinberg, 339 B.R. 458 (N.D. Ill. 2006).

NEWYORK 7166067 (2K) 42

VI. Any Finding Of “Good Faith” Under Section 363(m) Is Inappropriate

88. The facts stated in the Sale Motion (and the supporting declarations) do not

support any finding that (i) the New Chrysler is a purchaser in “good faith” under section 363(m)

of the Bankruptcy Code, or (ii) would vitiate the relief provided by section 363(n) of the

Bankruptcy Code. The Debtors have the burden to establish the “good faith” of New Chrysler.

Indeed, the court is “required to make a finding with respect to the ‘good faith’ of the purchaser.”

Ginther v. Ginther Trusts (In re Ginther Trusts), 238 F.3d 686, 689 (5th Cir.), cert. denied, 534

U.S. 814 (2001). Based on the facts adduced, the burden on the Debtors is unsustainable and no

finding of good faith is appropriate.

89. To facilitate bankruptcy sales, Congress provided that the validity of a sale to a

good faith purchaser will not be affected by a reversal or modification of the order approving the

sale unless the order is stayed pending appeal. 11 U.S.C. § 363(m). Collusion, coercion, and any

other attempt to take unfair advantage destroys good faith. Here, there is no good faith

purchaser. The Treasury Department is on both sides of the transaction, controlling both the

Debtors and New Chrysler, and is forcing the sale to promulgate the Executive Branch’s political

agenda to the detriment of the Indiana Pensioners.

VII. Even The Executive Branch Must Comply With The Bankruptcy Code

90. In this case, the Court is being asked to determine whether the proposed sale is

appropriate. The fate of the U.S. automotive industry is high on the national agenda and is being

closely monitored by the public. In recent months, high ranking members of the Executive

Branch have dedicated substantial time and resources in an effort to rescue this troubled industry.

Although the level of public interest and the federal Government’s involvement make this case

unusual, these circumstances do not change the absolute rights of the Senior Secured Lenders to

the protections provided by the Bankruptcy Code.

NEWYORK 7166067 (2K) 43

 91. Nevertheless, apparently ignoring the plain letter of the law, the Debtors and the

Government have asked the Court to approve the Sale Motion, which seeks to alter the very

priority established by the Bankruptcy Code. The transaction that the Debtors and the

Government seek to implement is designed primarily to benefit junior creditors whose claims the

Executive Branch seeks to elevate in contradiction of the law. The system of checks and

balances put in place by the United States Constitution should not be influenced or disturbed by

the Executive Branch’s priorities.

92. Given the current political environment, the significance of an independent

judiciary cannot be overstated. “The Federal Judiciary was [] designed by the Framers to stand

independent of the Executive and Legislature—to maintain the checks and balances of the

constitutional structure, and also to guarantee that the process of adjudication itself remained

impartial.” N. Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 58 (1982). Indeed,

the Supreme Court has warned that permitting “the political branches [] the power to switch the

Constitution on or off at will . . . would permit a striking anomaly in our tripartite system of

government, leading to a regime in which Congress and the President, not [the judiciary], say

‘what the law is.’” Boumediene v. Bush, 128 S. Ct. 2229, 2259 (2008) (citing Marbury v.

Madison, 1 Cranch 137, 177 (1803)). Here, the Executive Branch has effectively “turned off”

the constitutional property rights of the Indiana Pensioners. This “denial of constitutionally

protected rights demands judicial protection,” notwithstanding the fact such protection

necessitates this Court “entering into [a] political thicket[].” Reynolds v. Sims, 377 U.S. 533,

566 (1964).

93. Despite the pressures of other Government and societal forces, the creditor

protections inherent in the chapter 11 process must be upheld.

NEWYORK 7166067 (2K) 44

 CONCLUSION

94. The Sale Motion asks this Court to approve an illegal redistribution of the

Debtors’ value that flatly ignores the most basic creditor protections established by the

Bankruptcy Code and bypasses the priority scheme established by the Bankruptcy Code. It

should be denied.

NEWYORK 7166067 (2K) 45

 WHEREFORE, the Indiana Pensioners respectfully request entry of an order

denying the Debtors’ Sale Motion and granting such other and further relief as the Bankruptcy

Court deems just and proper.

Dated: May 19, 2009

New York, New York

WHITE & CASE LLP

Wachovia Financial Center
200 South Biscayne Boulevard, 49th Floor
Miami, Florida 33131
Telephone: (305) 371-2700
Facsimile: (305) 358-5744
Thomas E Lauria (admitted pro hac vice)

By: _____/s/ Glenn Kurtz_________________

1155 Avenue of the Americas

New York, New York 10036-2787
(212) 819-8200
Glenn M. Kurtz

ATTORNEYS FOR THE

INDIANA STATE TEACHERS
RETIREMENT FUND, INDIANA STATE
POLICE PENSION TRUST, AND INDIANA
MAJOR MOVES CONSTRUCTION FUND

NEWYORK 7166067 (2K) 46

 Hearing Date: TBD
Objection Deadline: TBD

WHITE & CASE LLP

1155 Avenue of the Americas
New York, New York 10036-2787
(212) 819-8200
Glenn M. Kurtz

Wachovia Financial Center

Suite 4900
200 South Biscayne Blvd.
Miami, Florida 33131
(305) 371-2700
Thomas E Lauria (admitted pro hac vice)

ATTORNEYS FOR THE

INDIANA STATE TEACHERS RETIREMENT FUND,
INDIANA STATE POLICE PENSION TRUST, AND
INDIANA MAJOR MOVES CONSTRUCTION FUND

IN THE UNITED STATES BANKRUPTCY COURT

FOR THE SOUTHERN DISTRICT OF NEW YORK

)
In re ) Chapter 11
)
CHRYSLER, LLC, et al., ) Case No. 09-50002
) Jointly Administered
Debtors. )
)

EMERGENCY MOTION OF THE INDIANA PENSIONERS

FOR STAY OF PROCEEDINGS PENDING DETERMINATION
OF MOTION TO WITHDRAW THE REFERENCE

TO THE HONORABLE ARTHUR J. GONZALEZ,

UNITED STATES BANKRUPTCY JUDGE:

The Indiana Pensioners,1 by and through their undersigned counsel, hereby file this

motion (the “Motion to Stay”), under Rule 5011(c) of the Federal Rules of Bankruptcy

1
The Indiana Pensioners are comprised of the Indiana State Teachers Retirement Fund and Indiana State
Police Pension Trust, pension funds which are fiduciaries for the investment of billions of dollars of retirement
assets for approximately 100,000 civil servants, including policemen, school teachers and their families, and the
Indiana Major Moves Construction Fund, an infrastructure construction fund, all of whom are holders of the Senior
Secured Debt (as defined below).

MIAMI 824975 (2K)

Procedure (the “Bankruptcy Rules”), for an order staying (i) the May 3, 2009 motion of Chrysler

LL (“Chrysler”) and certain of its affiliates (collectively, with Chrysler, the “Debtors”) for entry

of an order authorizing the sale of substantially all of Debtors’ assets free and clear of all liens,

claims, interests and encumbrances (the “Sale Motion”); and (ii) the May 19, 2009 Indiana

Pensioners’ Motion to Appoint a Chapter 11 Trustee and for Immediate Appointment of an

Examiner (the “Trustee/Examiner Motion”), pending resolution of the Indiana Pensioners’

motion to withdraw the reference (the “Withdrawal Motion”). In support of this Motion to Stay,

the Indiana Pensioners respectfully state as follows.

PRELIMINARY STATEMENT

The Indiana Pensioners are first lien secured creditors (“Senior Secured Lenders” and

holders of “Senior Secured Debt”) who hold liens on substantially all of the Debtors’ U.S. assets,

including its plants, equipment, inventory and bank accounts, and approximately 65% of the

Debtors’ equity interests in their foreign subsidiaries (the “Collateral”). In clear violation of the

Indiana Pensioners’ rights, the Debtors have filed the Sale Motion which, if granted, would

invert the Bankruptcy Code’s well-established priority scheme and, inter alia, grant to unsecured

creditors a significant equity interest in a new entity, “New Chrysler,” notwithstanding that the

Senior Secured Lenders have not been paid in full. Rather than pay the secured creditors as

required, the Debtors – at the Government’s direction – are essentially transferring the valuable

Collateral to New Chrysler and then divvying up the majority of that value among unsecured

creditors (the UAW) and third parties (the US Treasury Department and Fiat) while ignoring the

Indiana Pensioners’ rights in that property as Senior Secured Lenders.

While these proceedings, including the Sale Motion and Trustee/Examiner Motion,

appear to involve core bankruptcy matters, they in fact represent quite the opposite because the

MIAMI 824975 (2K) 2

Chrysler bankruptcy proceedings have been infected by acts of the U.S. Government that violate

non-bankruptcy law. This Motion to Stay is necessary because one of the actions taken by the

U.S. Government has been to press the Debtors to seek accelerated consideration and

implementation of the Sale Motion, the result of which will be to permanently impair the Indiana

Pensioners in violation of non-bankruptcy law. A stay is required to allow the District Court to

address these novel issues of non-bankruptcy law before the Indiana Pensioners’ position is so

impaired.

The Withdrawal Motion demonstrates that these proceedings, including the Sale Motion

and the Trustee/Examiner Motion, raises numerous important and novel issues regarding the

application of a newly enacted federal statute and the ability of the Executive Branch to direct

bankruptcy cases and interfere with private contract rights. These issues are ones of first

impression and raise serious questions about the statutory and constitutional authority

purportedly being exercised by the Treasury Department in these proceedings. Given the nature

of the issues presented, there is no credible dispute that these issues require mandatory

withdrawal of the reference to the District Court. Accordingly, a stay under Bankruptcy Rule

5011(c) of certain aspects of this bankruptcy is appropriate until the Withdrawal Motion can be

decided by the District Court.

BACKGROUND

1. On April 30, 2009 (the “Petition Date”), the Debtors filed voluntary petitions for

relief under chapter 11 of title 11 of the United States Code (the “Bankruptcy Code”), thereby

commencing their chapter 11 cases (the “Chapter 11 Cases”). The Debtors purport to be

operating their businesses as debtors and debtors in possession pursuant to sections 1107 and

1108 of the Bankruptcy Code. The Chapter 11 Cases are being jointly administered for

MIAMI 824975 (2K) 3

procedural purposes.

2. On May 3, 2009, the Debtors filed the Sale Motion [Docket No. 190], and on May

7, 2009, this Court entered an Order [Docket No. 492], setting the hearing on the Sale Motion for

May 27, 2009, at 10:00 a.m., and the deadline for the filing of responses to the Sale Motion for

May 19, 2009, at 4:00 p.m..

3. Concurrently with this Motion to Stay, the Indiana Pensioners have filed the

Trustee/Examiner Motion, and an Objection to the Sale Motion (the “Sale Objection”).

4. The Indiana Pensioners have filed with this Court and the District Court the

Withdrawal Motion with respect to the (i) the Sale Motion, and (ii) the Trustee/Examiner Motion.

5. Chrysler and certain of its affiliates are parties to that certain Amended and

Restated First Lien Credit Agreement, dated as of August 3, 2007 (as may have been amended or

supplemented, the “Senior Credit Agreement”), with JPMorgan Chase Bank N.A., as

administrative agent, and certain lenders party thereto from time to time (the “Senior Secured

Lenders”), under which the Senior Secured Lenders are owed $6.9 billion (the “Senior Secured

Debt”) secured by a first lien on the Collateral. Senior Credit Agreement § 2(a); Affidavit of

Ronald E. Kolka (“Kolka Aff.”) ¶ 28 [Docket No. 23].

RELIEF REQUESTED

6. Through the Motion to Stay, the Indiana Pensioners request an order staying all

proceedings related to the Sale Motion and Trustee/Examiner Motion pending adjudication by the

District Court of the Withdrawal Motion.

BASIS FOR RELIEF

7. A bankruptcy court should stay the underlying proceedings pending disposition of

a motion for withdrawal of the reference to a district court when: (i) the movant is likely to

MIAMI 824975 (2K) 4

prevail on the merits; (ii) the movant will be irreparably harmed if the stay is denied; (iii) the

other party will not suffer any substantial harm if the stay is granted; and (iv) the public interest

will be served by the grant of the stay. See In re Dana Corp., No. 06-10354 (BRL), 2007 WL

2908221, *1 (Bankr. S.D.N.Y. Oct. 3, 2007) (citing In re Issa Corp., 142 B.R. 75, 77 (Bankr.

S.D.N.Y. 1992)); Miller v. Vigilant Ins. Co. (In re Eagle Enters., Inc.), 259 B.R. 83, 86-88

(Bankr. E.D. Pa. 2001). Here, each of the above elements is satisfied, and thus, the Court should

grant a stay pending the resolution of the Withdrawal Motion.

8. The Indiana Pensioners are likely to prevail on the merits of their Withdrawal

Motion. See Eagle Enters., 259 B.R. at 88. As explained in the Withdrawal Motion, the

mandatory withdrawal statute, 28 U.S.C. § 157(d), is readily met when novel issues or

constitutional issues are raised, which is plainly the case here. The Government’s action is not

authorized by any statute, including the Troubled Asset Relief Program (“TARP”), and violates

the unambiguous provisions of the Emergency Economic Stabilization Act (the “EESA”) and the

Constitution of the United States. For instance, the EESA was enacted for the purpose of

restoring liquidity and stability to the American “financial system.” 12 U.S.C. § 5201. Under

EESA, Congress created TARP, which granted the Secretary of the Treasury authority to

purchase only “troubled assets” from “financial institutions.” 12 U.S.C. § 5211(a)(1). Chrysler,

however, is an automobile manufacturer, not a financial institution, and therefore not covered by

the purpose or provisions of TARP. Indeed, Congress expressly refused to authorize a bailout for

the automotive industry. Moreover, whatever powers the Government may have under TARP, it

does not have the power to use these Debtors to strip the Senior Secured Lenders of security

interests in the Collateral. These novel and constitutional issues must be decided by the District

Court and withdrawal of the reference is therefore required.

MIAMI 824975 (2K) 5

 9. It cannot be disputed that the Indiana Pensioners will suffer irreparable harm if

the stay is not granted. Courts have long recognized that the elimination of a movants’ rights by

mootness is the “quintessential” form of prejudice to a party. Cf. Country Squire Assocs. of Carle

Place, L.P. v. Rochester Cmty. Savs. Bank (In re Country Squire Assocs. of Carle Place, L.P.),

203 B.R. 182, 183-84 (B.A.P. 2d Cir. 1996) (granting stay and finding that irreparable harm was

established where it was clear that without a stay pending appeal the foreclosure sale would

proceed and moot the appeal); In re Adelphia Commc’ns. Corp., No. 02-41729, 2007 WL

186796, * 4 (S.D.N.Y. Jan. 24, 2007) (“where the denial of a stay pending appeal risks mooting

any appeal of significant claims of error, the irreparable harm requirement is satisfied”) (emphasis

in original), appeal dismissed by, No. 02-41729, No. 07 Civ. 1172(SAS), 2007 WL 1002127

(S.D.N.Y. Apr. 2, 2007); In re St. Johnsbury Trucking Co., 185 B.R. 687, 688, 690 (S.D.N.Y.

1995) (granting stay confirmation order pending appeal and concluding that movant established

the threat of irreparable injury because there was a risk that the appeal would be mooted if no stay

were granted).

10. Here, the Debtors have been proceeding toward a sale of substantially all of their

assets on an extraordinarily expedited basis. A final hearing to consider the Debtors’ Sale Motion

is set to take place in just over a week on May 27, 2009, and the Debtors anticipate closing their

proposed sale of substantially all of their assets (the “363 Sale”) by mid-June 2009. If the Sale

Motion is approved and the Senior Secured Lenders’ Collateral transferred, however, the

transaction could not be undone even if the District Court afterwards withdrew the reference. See

11 U.S.C. § 363(m). Accordingly, if a stay is not entered pending resolution of the Withdrawal

Motion, the Indiana Pensioners could lose their right to have critical issues of non-bankruptcy

MIAMI 824975 (2K) 6

federal law heard by the District Court. The possible mooting of their rights constitutes

irreparable harm.

11. A stay also is appropriate because, in contrast to the irreparable harm that the

Indiana Pensioners will suffer, the Debtors and other proponents of the Sale Motion will suffer

little or no harm. See Eagle Enters., 259 B.R. at 88. Even if one acknowledges the purported

need to resolve the Sale Motion quickly, that is no reason why the requested stay must delay these

matters for any length of time. The District Court is equally able to conclude all of the

proceedings contemplated under the Sale Motion just as expeditiously and efficiently as this

Court – and may do so in the context of deciding the novel issues of non-bankruptcy law that

must be decided in relation to the Sale Motion. Accordingly, the Debtors and other stakeholders

would suffer little if any harm if a stay were imposed.

12. Finally, the granting of a stay pending adjudication of the Withdrawal Motion will

serve the public interest. The Withdrawal Motion requests the resolution of extremely novel

issues of a newly enacted federal law in one of the most important Chapter 11 bankruptcies in

memory. As the Government has recognized, the importance of these cases cannot be overstated.

The Withdrawal Motion raises legal issues of the highest importance. The District Court’s

decision on these issues will not only impact Chrysler and these proceedings, but will resonate

throughout the bankruptcy community and have an impact on future Chapter 11 cases. A stay

should be granted to allow the District Court an opportunity to address the Withdrawal Motion.

NOTICE

13. Notice of this Motion to Stay will be provided to: (i) the Debtors and their

counsel; (ii) conflicts counsel to the Debtors; (iii) the Debtors’ claims and noticing agent, Epiq

Bankruptcy Solutions, LLC; (iv) the Office of the United States Trustee; (v) counsel to the

MIAMI 824975 (2K) 7

Official Committee of Unsecured Creditors; (vi) counsel to the administrative agent of the Senior

Credit Agreement; (vii) Cerberus; (viii) counsel to Daimler (ix) counsel to the UAW; (x) counsel

to the U.S. Treasury; (xi) counsel to the United States; (xii) counsel to Export Development

Canada; and (xiii) all entities having filed a request for notice pursuant to Bankruptcy Rule 2002

in these Chapter 11 Cases.

14. The Indiana Pensioners submit that no other or further prior notice of the relief

requested herein need be provided.

NO PRIOR REQUEST

15. No prior request for the relief sought in the Motion to Stay has been made to this

or any other court.

MIAMI 824975 (2K) 8

 CONCLUSION

WHEREFORE, the Indiana Pensioners respectfully request the Court enter an order

pursuant to Bankruptcy Rule 5011(c) staying all proceedings related to the Sale Motion and the

Trustee/Examiner Motion pending resolution by the District Court of the Withdrawal Motion.

Dated: May 20, 2009

New York, New York

WHITE & CASE LLP

1155 Avenue of the Americas
New York, New York 10036-2787
Telephone: (212) 819-8200
Facsimile: (212) 354-8113
Glenn M. Kurtz

By: /s/ Glenn M. Kurtz

Glenn M. Kurtz

Wachovia Financial Center

200 South Biscayne Boulevard, 49th Floor
Miami, Florida 33131
Telephone: (305) 371-2700
Facsimile: (305) 358-5744
Thomas E Lauria (admitted pro hac vice)

ATTORNEYS FOR THE INDIANA

STATE TEACHERS RETIREMENT
FUND, INDIANA STATE POLICE
PENSION TRUST, AND INDIANA
MAJOR MOVES CONSTRUCTION
FUND

MIAMI 824975 (2K) 9

WHITE & CASE LLP
1155 Avenue of the Americas
New York, New York 10036-2787
(212) 819-8200
Glenn M. Kurtz

Wachovia Financial Center, Suite 4900

200 South Biscayne Blvd.
Miami, Florida 33131
(305) 371-2700
Thomas E Lauria (admitted pro hac vice)

ATTORNEYS FOR THE

INDIANA STATE TEACHERS RETIREMENT FUND,
INDIANA STATE POLICE PENSION TRUST, AND
INDIANA MAJOR MOVES CONSTRUCTION FUND

IN THE UNITED STATES BANKRUPTCY COURT

FOR THE SOUTHERN DISTRICT OF NEW YORK

)
In re ) Chapter 11
)
CHRYSLER, LLC, et al., ) Case No. 09-50002-AJG
) Jointly Administered
Debtors. )
)

VERIFIED STATEMENT OF WHITE & CASE LLP

PURSUANT TO BANKRUPTCY RULE 2019

White & Case LLP (“White & Case”) represents the creditors and parties in

interest identified below in the above-captioned chapter 11 cases (the “Chapter 11 Cases”) of

Chrysler, LLC (“Chrysler”) and certain of its affiliates (collectively with Chrysler, the

“Debtors”), and pursuant to Rule 2019 of the Federal Rules of Bankruptcy Procedure (the

“Bankruptcy Rules”), states as follows:

1. White & Case is an international law firm that maintains its principal

office at 1155 Avenue of the Americas, New York, New York 10036, and numerous additional

offices throughout the United States and worldwide.

MIAMI 824971 (2K)

 2. White & Case serves as counsel to the Indiana State Teachers Retirement

Fund and Indiana State Police Pension Trust, pension funds that are fiduciaries for the

investment of retirement assets for approximately 100,000 civil servants, including police

officers, school teachers and their families, and Indiana Major Moves Construction Fund, an

infrastructure construction fund (collectively, the “Indiana Pensioners”). The Indiana Pensioners

are lenders under that certain Amended and Restated First Lien Credit Agreement, dated as of

August 3, 2007 (as may have been amended or supplemented, the “Senior Credit Agreement”)

among Chrysler and certain of its affiliates, as borrowers, JPMorgan Chase, N.A., as

administrative agent, and certain lenders party thereto from time to time (the “Senior Lenders”),

under which the Senior Lenders are owed $6.9 billion (the “Senior Debt”). The names and

addresses of each of the Indiana Pensioners are set forth on Exhibit A attached hereto.

3. As of the date hereof, each of the Indiana Pensioners is a holder, or

investment advisor to a holder, of the Senior Debt. White & Case has been advised by the

Indiana Pensioners that, as of the date hereof, they collectively are the beneficial owner of, or the

holder or manager of, various accounts with investment authority, contractual authority or voting

authority for more than $42,502,733 principal amount of the Senior Debt.

4. The Indiana Pensioners first engaged White & Case late in the evening on

Monday, May 18, 2009. Although the Indiana Pensioners have hired White & Case to represent

their interests and to enable their voices to be heard more effectively and efficiently as a group,

each of the Indiana Pensioners makes its own decisions as to how it wishes to proceed and does

not speak for, or on behalf of, any other creditor, including the other Indiana Pensioners in their

individual capacities.

5. White & Case does not own any claims against or equity interests in any

MIAMI 824971 (2K) -2-

of the Debtors.

6. In the event that White & Case undertakes additional representation of

other clients in these Chapter 11 Cases, this statement shall be supplemented in accordance with

Bankruptcy Rule 2019.

Dated: May 20, 2009

WHITE & CASE LLP

1155 Avenue of the Americas
New York, New York 10036-2787
Telephone: (212) 819-8200
Facsimile: (212) 354-8113
Glenn M. Kurtz

By: _/s/ Glenn M. Kurtz_____________

Glenn M. Kurtz

Wachovia Financial Center

200 South Biscayne Boulevard, 49th Floor
Miami, Florida 33131
Telephone: (305) 371-2700
Facsimile: (305) 358-5744
Thomas E Lauria (admitted pro hac vice)

ATTORNEYS FOR THE INDIANA

STATE TEACHERS RETIREMENT
FUND, INDIANA STATE POLICE
PENSION TRUST, AND INDIANA
MAJOR MOVES CONSTRUCTION
FUND

MIAMI 824971 (2K) -3-

 VERIFICATION

I, Glenn M. Kurtz, a member of White & Case LLP, a law firm with offices at 1155

Avenue of the Americas, New York, New York, 10036, declare under penalty of perjury that I

have read the foregoing Verified Statement of White & Case LLP Pursuant to Bankruptcy Rule

2019 and that it is true and correct to the best of my knowledge, information and belief.

Executed on May 20, 2009 By: _/s/ Glenn M. Kurtz_____________

Glenn M. Kurtz

MIAMI 824971 (2K) -4-

 Exhibit A

The Indiana Pensioners are as follows:

Holders Address Approximate Holdings Date Acquired Approximate Amount Paid

Indiana State Teachers 150 West Market Street $32,355,000 8/13/08 – 8/15/08 $13,912,650
Retirement Fund Ste. 300
Indianapolis, IN 46204

Indiana State Police Pension 200 W. Washington Street $1,329,874 8/13/08 – 8/15/08 $571,845
Trust Room 242
Indianapolis, IN 46204

Indiana Major Moves 200 W. Washington Street $8,817,859 8/13/08 – 8/15/08 $3,791,679
Construction Fund Room 242
Indianapolis, IN 46204

Approximate Aggregate $42,502,733

Holdings:

MIAMI 824971 (2K)

WHITE & CASE LLP
1155 Avenue of the Americas
New York, New York 10036-2787
(212) 819-8200
Glenn M. Kurtz

Wachovia Financial Center, Suite 4900

200 South Biscayne Blvd.
Miami, Florida 33131
(305) 371-2700
Thomas E Lauria (admitted pro hac vice)

ATTORNEYS FOR THE

INDIANA STATE TEACHERS RETIREMENT FUND,
INDIANA STATE POLICE PENSION TRUST, AND
INDIANA MAJOR MOVES CONSTRUCTION FUND

IN THE UNITED STATES BANKRUPTCY COURT

FOR THE SOUTHERN DISTRICT OF NEW YORK

)
In re ) Chapter 11
)
CHRYSLER, LLC, et al., ) Case No. 09-50002-AJG
) Jointly Administered
Debtors. )
)

VERIFIED STATEMENT OF WHITE & CASE LLP

PURSUANT TO BANKRUPTCY RULE 2019

White & Case LLP (“White & Case”) represents the creditors and parties in

interest identified below in the above-captioned chapter 11 cases (the “Chapter 11 Cases”) of

Chrysler, LLC (“Chrysler”) and certain of its affiliates (collectively with Chrysler, the

“Debtors”), and pursuant to Rule 2019 of the Federal Rules of Bankruptcy Procedure (the

“Bankruptcy Rules”), states as follows:

1. White & Case is an international law firm that maintains its principal

office at 1155 Avenue of the Americas, New York, New York 10036, and numerous additional

offices throughout the United States and worldwide.

MIAMI 824971 (2K)

 2. White & Case serves as counsel to the Indiana State Teachers Retirement

Fund and Indiana State Police Pension Trust, pension funds that are fiduciaries for the

investment of retirement assets for approximately 100,000 civil servants, including police

officers, school teachers and their families, and Indiana Major Moves Construction Fund, an

infrastructure construction fund (collectively, the “Indiana Pensioners”). The Indiana Pensioners

are lenders under that certain Amended and Restated First Lien Credit Agreement, dated as of

August 3, 2007 (as may have been amended or supplemented, the “Senior Credit Agreement”)

among Chrysler and certain of its affiliates, as borrowers, JPMorgan Chase, N.A., as

administrative agent, and certain lenders party thereto from time to time (the “Senior Lenders”),

under which the Senior Lenders are owed $6.9 billion (the “Senior Debt”). The names and

addresses of each of the Indiana Pensioners are set forth on Exhibit A attached hereto.

3. As of the date hereof, each of the Indiana Pensioners is a holder, or

investment advisor to a holder, of the Senior Debt. White & Case has been advised by the

Indiana Pensioners that, as of the date hereof, they collectively are the beneficial owner of, or the

holder or manager of, various accounts with investment authority, contractual authority or voting

authority for more than $42,502,733 principal amount of the Senior Debt.

4. The Indiana Pensioners first engaged White & Case late in the evening on

Monday, May 18, 2009. Although the Indiana Pensioners have hired White & Case to represent

their interests and to enable their voices to be heard more effectively and efficiently as a group,

each of the Indiana Pensioners makes its own decisions as to how it wishes to proceed and does

not speak for, or on behalf of, any other creditor, including the other Indiana Pensioners in their

individual capacities.

5. White & Case does not own any claims against or equity interests in any

MIAMI 824971 (2K) -2-

of the Debtors.

6. In the event that White & Case undertakes additional representation of

other clients in these Chapter 11 Cases, this statement shall be supplemented in accordance with

Bankruptcy Rule 2019.

Dated: May 20, 2009

WHITE & CASE LLP

1155 Avenue of the Americas
New York, New York 10036-2787
Telephone: (212) 819-8200
Facsimile: (212) 354-8113
Glenn M. Kurtz

By: _/s/ Glenn M. Kurtz_____________

Glenn M. Kurtz

Wachovia Financial Center

200 South Biscayne Boulevard, 49th Floor
Miami, Florida 33131
Telephone: (305) 371-2700
Facsimile: (305) 358-5744
Thomas E Lauria (admitted pro hac vice)

ATTORNEYS FOR THE INDIANA

STATE TEACHERS RETIREMENT
FUND, INDIANA STATE POLICE
PENSION TRUST, AND INDIANA
MAJOR MOVES CONSTRUCTION
FUND

MIAMI 824971 (2K) -3-

 VERIFICATION

I, Glenn M. Kurtz, a member of White & Case LLP, a law firm with offices at 1155

Avenue of the Americas, New York, New York, 10036, declare under penalty of perjury that I

have read the foregoing Verified Statement of White & Case LLP Pursuant to Bankruptcy Rule

2019 and that it is true and correct to the best of my knowledge, information and belief.

Executed on May 20, 2009 By: _/s/ Glenn M. Kurtz_____________

Glenn M. Kurtz

MIAMI 824971 (2K) -4-

 Exhibit A

The Indiana Pensioners are as follows:

Holders Address Approximate Holdings Date Acquired Approximate Amount Paid

Indiana State Teachers 150 West Market Street $32,355,000 8/13/08 – 8/15/08 $13,912,650
Retirement Fund Ste. 300
Indianapolis, IN 46204

Indiana State Police Pension 200 W. Washington Street $1,329,874 8/13/08 – 8/15/08 $571,845
Trust Room 242
Indianapolis, IN 46204

Indiana Major Moves 200 W. Washington Street $8,817,859 8/13/08 – 8/15/08 $3,791,679
Construction Fund Room 242
Indianapolis, IN 46204

Approximate Aggregate $42,502,733

Holdings:

MIAMI 824971 (2K)