Free Designated Record on Appeal - District Court of Delaware - Delaware

Case 1:07-cv-00621-GMS

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IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE In re: ) ) EXAERIS, INC., et al., ) ) Debtors. ) ____________________________________) Chapter 11 Case No. 07-10887 (KG) and Case No. 07-10888 (KG) (Jointly Administered)

WESTERNBANK PUERTO RICO'S COUNTER-DESIGNATION OF RECORD AND COUNTER-STATEMENT OF ISSUES WITH RESPECT TO APPELLANT DR. JACK KACHKAR'S APPEAL OF FINAL POSTPETITION FINANCING ORDER ENTERED BY THE BANKRUPTCY COURT ON SEPTEMBER 27, 2007 (DOCKET NO. 179) Pursuant to Rule 8006 of the Federal Rules of Bankruptcy Procedure, Westernbank Puerto Rico ("Westernbank") submits this counter-statement of the issues on appeal and counter-designation of additional items to be included on the record on appeal in connection with the appeal filed by Jack Kachkar ("Kachkar") from an order of the United States Bankruptcy Court for the District of Delaware (the "Bankruptcy Court"), dated September 7, 2007, titled "Final Order As To Debtor Inyx USA, Ltd. (Case No. 07-10888) (I) Authorizing The Use Of Cash Collateral Pursuant to 11 U.S.C. § 363, (II) Granting Adequate Protection To Westernbank Puerto Rico As The Prepetition Lender, (III) Authorizing Postpetition Financing, (IV) Granting Liens And Superpriority Administrative Expense Status Pursuant To 11 U.S.C. §§ 363 And 364, And (V) Modifying Automatic Stay Pursuant To 11 U.S.C. § 362" (the "Westernbank Financing") [Docket No. 179] (the "Order"), and respectfully submits: COUNTER-STATEMENT OF ISSUES ON APPEAL 1. Is the Kachkar appeal from the Order moot pursuant to section 364(e) of

the Bankruptcy Code because (a) the loan, in the aggregate amount of $3,373,100, through the Commitment Termination Date, agreed to be made by Westernbank to the Trustee has been

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made or is fully committed to be advanced to the Trustee pursuant to the Budget1 proposed by the Trustee and made a part of the Record and (b) the Order does not prime any lien that may have previously been granted to Kachkar pursuant to the Interim Order entered in the procedurally consolidated chapter 11 cases, dated July 11, 2007? 2. Is the Kachkar appeal from the Order's specific findings and decretal

provision that the Westernbank Financing (a) was negotiated in good faith2 and at arm's length between the Trustee and Westernbank, (b) extended in good faith, and (c) previously conceeded by Kachkar's attorney as being in good faith,3 moot? 3. Is the Bankruptcy Court's specific findings and decretal provision that the

Westernbank Financing (a) was negotiated in good faith and at arm's length between the Trustee and Westernbank, (b) that the credit extended under the Order would be extended in good faith and for valid business purposes and uses, and (c) that Westernbank is entitled to the protections and benefits of section 364(e) of the Bankruptcy Code, clearly erroneous? COUNTER-DESIGNATION OF RECORD Westernbank counter-designates the following items to be included in the record on appeal. Each designated item includes any exhibits to such item. Docket No. 17 Description Emergency Motion Of Westernbank Puerto Rico For Adequate Protection And To Prohibit Use Of Cash Collateral, dated July 9, 2007

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Exhibit A annexed to the Order. Order Paragraphs G and 12(a).

Transcript of Bankruptcy Court Hearing held on August 23, 2007, page 11, lines 3-6, approving the interim Westernbank Financing that was incorporated into the Order.

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Objection By Westernbank Puerto Rico To The Debtors' Motion: (I) To Authorize Secured Postpetition Financing; (II) To Grant A Super-Priority Administrative Claim And Postpetition Liens; And (III) To Schedule A Final Hearing, dated July 10, 2007 Order Granting Motion For Adequate Protection, dated July 12, 2007 Supplemental Objection Of Westernbank Puerto Rico To Debtors' Motion For Final Approval Of Secured Postpetition Financing And Related Relief, dated July 24, 2007

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Transcript of Hearing held on September 7, 2007 before the Honorable Kevin Gross, docketed October 9, 2007

Dated: October 9, 2007 Wilmington, Delaware ___/s/ Steven K. Kortanek_________ Francis A. Monaco (Del. Bar No. 2078) Steven K. Kortanek (Del. Bar No. 3106) WOMBLE CARLYLE SANDRIDGE & RICE, PLLC 222 Delaware Avenue, Suite 1501 Wilmington, DE 19801 Telephone: (302) 252-4363 Facsimile: (302) 661-7728 - and Harvey R. Miller Shai Y. Waisman WEIL, GOTSHAL & MANGES LLP 767 Fifth Avenue New York, New York 10153 Telephone: (212) 310-8000 Facsimile: (212) 310-8007 Attorneys for Westernbank Puerto Rico

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