Case 13-11831-BLS Doc 727 Filed 12/02/14 Page 1 of 17Case 13-11831-BLS Doc 727 Filed 12/02/14 Page 4...

IN THE UNITED STATES BANKRUPTCY COURTFOR THE DISTRICT OF DELAWARE

In re: ) Chapter 11

TPOP, LLC,1 ) Case No. 13-11831 (BLS)

Debtor. ) Related to Docket No. 704

DECLARATION OF JOHN C. DIDONATO IN SUPPORT OF DEBTOR'S

OBJECTION TO AMENDED MOTION TO COMPEL IMMEDIATE PAYMENT

OF FIRST PRIORITY SECURED CLAIM OF GENERAL MOTORS

I, John C. DiDonato, hereby declare that the following is true to the best of my

knowledge, information and belief:

1. I am the Chief Restructuring Officer of TPOP, LLC, formerly known as

Metavation, LLC ("TPOP", "Metavation" or the "Debtor"). I am also the Chief Restructuring

Officer of Revstone Industries, LLC, Spara, LLC and their affiliated debtors and debtors in

possession (collectively, the "Revstone Debtors", and together with Metavation, the "Debtors")

I have been the Chief Restructuring Officer ("CRO") of the Revstone Debtors since January 17,

2013 and CRO of Metavation since July 18, 2013.

2. I am the Debtors' business person who was primarily responsible for the

Revstone Debtors and affiliates' business relationship with GM. I was also the Debtors'

business person who was primarily responsible for the negotiation of the Sale Support

Agreement with GM. I submit this declaration (the "Declaration") in support of TPOP's

Objection to Amended Motion to Compel Immediate Payment of First PNiority Secured Claim of

' The Debtor in this chapter 11 case is TPOP, LLC, f/k/a Metavation, LLC, and the last four digits of its federal taxidentification numbers are 5884. The location of the Debtor's headquarters and the Debtor's service address isTPOP, LLC, c/o Huron Consulting Group Inc., 900 Wilshire Drive, Suite 270, Troy, MI 48084, Attn: John C.DiDonato, Chief Restructuring Officer.

Case 13-11831-BLS Doc 727 Filed 12/02/14 of 17

General Motors [Docket No. 704] (the "Objection"). Except as otherwise indicated, all

statements in this Declaration are based upon my personal knowledge, my review of TPOP's

books and records, relevant documents or my opinion based on my experience with the TPOP's

operations and financial condition. If I were called to testify as a witness in this matter, I could

and would competently testify to each of the facts set forth herein based upon my personal

knowledge, review of documents, or opinion. I am authorized to submit this Declaration on

behalf of TPOP.

A. Fundamental Purpose of the Sale Support A~reement2

Prior to the sale of its business to Dayco, LLC, Metavation was an

entrenched supplier of damper and related components to GM (and other OEMs and suppliers).

Metavation produced three to four million dampers annually and was the only North American

damper manufacturer to offer proprietary design optimization software, in-house custom rubber

compounding and manufacturing as well as in-house precision machining capabilities for

virtually all damper components. Unique capabilities allowed Metavation to be a "one-stop-

shop" for precision machining and the rubber blends that make up the damper, strategically

allowing it to engineer and control the entire product design and manufacturing process with an

effectiveness and efficiency that resulted in a superior end product.

4. Metavation's liquidity and operational challenges started in late 2011, at

which point GM had a regular presence at the operations. In late 2012, the challenges became

more apparent and threatened GM's supply chain. GM's representatives, including Mark W.

Z Capitalized terms not otherwise defined herein shall have their meaning in the Objection.

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Fischer, GM's Director of Supply Risk Management and Steven Braithwaite, a Managing

Director with BBK, Ltd., GM's financial advisor, repeatedly told me and other Metavation

representatives that if Metavation did not continue to produce and supply the critical damper

components, GM's vehicle production would be interrupted and that would be a disaster for GM.

5. The Sale Support Agreement grew out of this crisis. During the

negotiations of the Sale Support Agreement, representatives of GM and Chrysler (who was also

a party to the Sale Support Agreement), repeated the point I referenced in the prior paragraph,

that the uninterrupted supply of component parts was critical because the damages resulting from

a temporary shutdown of any GM and Chrysler assembly plants, while difficult to calculate with

a degree of certainty, would have been substantial and may have included a loss of customer

relations and goodwill as a result of GM and Chrysler's inability to deliver vehicles and

replacement parts as ordered by their customers and the ultimate consumers, in addition to

damage that would have been suffered by GM and Chrysler's suppliers, dealers, vendors, and

employees.

6. As a result, GM and Chrysler committed to provide funding that would

maintain an undisrupted supply of parts from Metavation and certain affiliate Businesses that

supplied parts to GM and Chrysler until these operations could be sold through an orderly sale

process. This commitment is embodied in the Sale Support Agreement. Thus, the Debtor, along

with certain related affiliates, entered into the Sale Support Agreement with GM and Chrysler

(collectively, the "Customers") to meet the Customers' one primary objective-the protection of

the supply chain of components parts manufactured and delivered by Metavation, Contech


(which primarily supplied component parts to Chrysler) and certain Debtor affiliate Businesses

that were also parties to the Sale Support Agreement. Both Chrysler and Ford Motor Company

("Ford") entered into agreements with the Debtors and non-debtor affiliates resolving any and all

remaining claims, including, in the case of Chrysler, resolving claims relating the very same Sale

Support Agreement that is the subject of GM's motion.

7. From this primary purpose —the continued supply of component parts —

grew another goal. GM sought to avoid any future interruptions and reduce the risk that George

Hofineister could interfere with the ability of the other affiliate Businesses in the Revstone

Group to supply parts or provide tooling by requiring the sale of such companies. The Sale

Support Payment installments were dependent on completing first the sales of Metavation and

Contech and second the sales of Eptec, CLS and Aarkel. In short, GM wanted to remove any

possibility that George Hofineister could influence or affect the companies that provided it

critical component parts and tooling; the Customers viewed Hofineister's continued involvement

as a potential negative impact on their supply chain. As a result, the Customers demanded that

Eptec, CLS, and Aarkel be sold, in addition to requiring the sale of Metavation and Contech.

However, reflecting that the sales of Metavation and Contech were of primary importance, the

waiver of claims by the Customers was triggered by the sale of Contech and Metavation.

However, to make sure that all of the Businesses were sold, the waiver would only become

effective upon the sale of the last Business required to be sold. See Sale Support Agreement, §

5.2.

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8. In sum, the Sale Support Agreement funding was provided to meet GM's

goals. First, GM (and also Chrysler) agreed to provide funding to avoid any liquidity crisis that

could interrupt the manufacture and delivery of component parts and tooling. Second, the

Customers demanded the sales of Metavation, Contech and certain other members of the

Revstone Group (Eptec, CLS, and Aarkel) as part of their demand that all connections with

George Hofineister were severed. GM also required active participation in the sales process of

all of the Revstone Group companies and required that the Businesses could only be sold to

purchasers approved by GM.

9. By Metavation and its certain affiliate Businesses achieving these

objectives, GM received the benefit of its bargain under the Sale Support Agreement. Plant

shutdowns were avoided, the sales of Metavation (and Contech) were completed and GM paid

the first installment of the Sale Support Payment. All of the sales contemplated in the Sale

Support Agreement were completed to purchasers that GM approved. George Hofineister's

automotive manufacturing connection to the manufacturers critical to GM's supply chain was

terminated. In the end, GM received from the Debtor and its affiliate Businesses exactly what

GM wanted —the uninterrupted supply of component parts it needed to protect its ability to

manufacture vehicles in North America.

10. The terms of the Sale Support Agreement demonstrate that the

fundamental goal of the Sale Support Agreement was the uninterrupted supply of component

parts. The first four recitals of the Sale Support Agreement describe the obligations of

Metavation and Contech to manufacture and supply component parts to the Customers.


Additionally, in section 9.6, the Revstone Group acknowledged and agreed that the Customers

would be "irreparably harmed and have no adequate remedy at law if it should cease timely

shipment of Component Parts to Customers in accordance with applicable releases and related

delivery schedules." The Customers also demanded and received the extraordinary right to

access the Debtor's facilities to operate the plants themselves and the right to appoint a Receiver

to sell the Businesses if the Debtor or any of the affiliates "dragged its feet." Additionally, for

example: (i) the Customers were provided reasonable plant access (Section 8.4); (ii) the

Revstone Group agreed to provide a Production Improvement Plan (Section 8.5); (iii) members

of the Revstone Group agreed to continue to provide component parts in accordance with the

terms of the applicable purchase contracts (Section 8.7); (iv) Metavation agreed to maintain a

spare parts inventory; and (v) all relevant members of the Revstone Group (excluding Contech)

agreed to maintain an inventory bank.

11. The protection of the supply of component parts and tooling was also the

dominant theme in the multiple meetings and negotiations between the Debtor and Customers

over the terms of the Sale Support Agreement. Beginning in early 2013, Mr. Fischer emphasized

that the sale of the component parts must continue without interruption and that any threat to

GM's supply chain, either by the cessation of business or the continued involvement of George

Hofineister, must be eliminated. Mr. Fischer regularly expressed to me that GM was providing

the sale support so that it would not have to find alternative suppliers. GM sought to avoid the

time delays and costs associated with switching to new suppliers of component parts.


12. GM received the supply of component parts and tooling it contracted to

receive. Moreover, the sales of the Businesses were all completed to financially viable

purchasers, approved by GM and Hofineister was eliminated as a risk to future supply chain

production. Thus, GM got exactly what it bargained for.

B. The Sales of the Businesses Obligates GM To Perform

13. GM asserts that every obligation of any member of the Revstone Group in

the Sale Support Agreement, no matter how immaterial, is a condition that must be satisfied

before GM's obligations to forgive debt and fund the remaining Sale Support Payment are

triggered. GM ignores the fundamental purpose of the Sale Support Agreement, which is the

only substantial condition that must be performed before GM's performance obligations are

required under the Sale Support Agreement. That was, as discussed above, the uninterrupted

supply of parts to GM through the sales of the Businesses to financially viable purchasers that

GM approved. That condition was satisfied.

14. Moreover, the Sale Support Agreement uses the phrase "Condition

Precedent" only in Section 1.1. Section 1.1, "Conditions to Effectiveness", provides that the

Sale Support Agreement is effective upon satisfaction of three "conditions precedent" to the

agreement. See Sale Support Agreement, § 1.1 (emphasis added). First, applicable members of

the Revstone Group (other than Contech) were required to execute an Omnibus Access and

Security Agreement relating to the Business. Second, the applicable members of the Revstone

Group (other than Contech and Aarkel) were to deliver the Receivership Order. Third, Contech

and the customers to the Contech Customer Agreement were required to execute the Contech

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Access First Amendment, which included a Receivership Order for the Auburn, Indiana plant.

All three of these conditions precedent were satisfied. The Sale Support Agreement does not

contain any other conditions precedent.

C. The Alleged Defaults are Not Material and GM Recei~~ed the Sene~t of it Bargain

15. The alleged events of default asserted by GM did not prevent the

achievement of the goal of the Sale Support Agreement —the uninterrupted supply of component

parts. GM's conduct demonstrates that. Despite reserving its rights in letters drafted by its

lawyers but signed by Mr. Fischer, GM never attempted to exercise any.of the Sales Support

Agreement's serious remedies for non-performance, e.g., appointment of a receiver. Again,

that is because GM got what it bargained for, an uninterrupted supply of component parts.

16. GM's alleged events of default fall into three categories: (i) delivery of

Post-Closing Deliverables; (ii) meeting certain Sale process requirements, milestones and

deadlines; and (iii) DIP financing matters. The purported events of default were neither material

nor did they prevent GM from receiving the benefit of its bargain under the Sale Support

Agreement.

17. The failure to deliver the Post Closing Deliverables (the CRO Certification

required by § 1.2(a) of SSA and delivery of fully-executed security agreements relating to the

Eptec Non-Damper Business, Aarkel and Dowagiac) did not harm GM or affect the ability of

Metavation to provide component parts. The CRO Certification was intended to certify five

pieces of information that GM had prior knowledge of or had been previously provided.


18. First, the CRO Certification would certify that except for certain interests,

liens and judgments, Eptec was the sole and exclusive owner of its Business. GM was aware of

the existing liens, interests and judgments against Eptec and knew that Eptec was the sole owner

of its business. Second, GM knew that except for the interests and/or liens of Contech, Wells

Fargo, PBGC, and for unpaid real estate taxes, Contech Real Estate owned the Dowagiac

property free and clear. GM was already aware of the lien and other interests in the Dowagiac

property when it requested the CRO Certification. Finally, GM sought certification that the

following documents, which the Sale Support Agreement notes were previously provided to GM,

were accurate and complete to the best knowledge and belief of the CRO: (i) proposed sources of

uses of anticipated proceeds from the sales of the Businesses; (ii) certain financial information

regarding the Ascalon health plan; and (iii) a Revstone corporate organization chart. See Sale

Support Agreement, § 1.2(a). As to the first item, the sources and uses of proceeds from the sale

of Businesses was preliminary as the sales had yet to occur. Any source and uses would have

changed based on the final sale amounts. In any event, sources and uses schedules for sales were

provided to GM. The second item, certain information about the Ascalon health plan, was not

yet completely known to the Debtor at that time. However, that information is now publicly

available and set forth in the adversary proceeding filed by Revstone against Ascalon: Finally,

the corporate organization chart of the Revstone family of companies was and is available in

multiple pleadings publicly filed on the Court's docket. It was also provided to GM at an earlier

meeting in February ,2013. In sum, each item in the CRO Certification was either already known


to GM, was not fully developed, or was publicly available. Moreover, each piece of information

had no bearing on and did not affect the supply of component parts and tooling.

19. Non-delivery of the of fully-executed security agreements relating to the

Eptec Non-Damper Business, Aarkel and Dowagiac was also not material. GM sought the

security agreements as further collateral to assure the saes were completed. However, GM was

actively involved in the Eptec and Aarkel sales processes and its interests were not at risk.

Obtaining the fully-executed security agreements was hampered by factors outside of the

Debtor's control. In fact, in the case of Eptec, GM's own foreign counsel did not contact Eptec's

counsel to discuss the security agreement until October 1, 2013, well after the deadline to

provide the security agreement. In the case of Aarkel, GM was never able to reach agreement on

an acceptable form of security agreement with Aarkel's counsel. Finally, the Debtor did not

breach the Sale Support Agreement by failing to provide a security agreement related to

Dowagiac. Any such security agreement was unnecessary as GM already had a security interest

in these assets by virtue of its participation interests in the Wells financing arrangements.

Ultimately, the -net proceeds from the sale of Dowagiac were distributed to GM and Chrysler.

20. The events of default related to the second category, the sales processes,

milestones and deadlines, also did not interfere with the supply of component parts end tooling.

GM was an active participant in the Eptec and Aarkel sale processes and was aware of the

schedule and timing of the sales. And in the instance of Eptec, GM contributed to the delay in

the closing of the sale because of the amount of time that GM took to finalize its supply

agreement with the purchaser, JD Norman. At certain points, GM expressed to me its frustration

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with the slow pace of the sales processes. However, GM remained an active part of and

supported the sales processes. Moreover, GM never sought to exercise its remedies under the

Sale Support Agreement.

21. GM alleges three defaults related to the Sale of Eptec: (i) failure to close

the sale by the milestone; (ii) non-payment of the proceeds of the sale; and (ii) failure to obtain

the PBGC's consent by a certain date. The delay in closing the sale of the Eptec Business was

caused in part by GM's own actions. GM would only consent to the sale of Eptec to JD Norman,

a buyer it had handpicked. In a direct conversation with Mr. Fischer on or about November 7,

2013, I explained to Mr. Fischer that JD Norman's proposed purchase price would not satisfy all

of Eptec's outstanding liabilities. Therefore, I recommended that we explore alternative buyers

for Eptec that could potentially provide .more value and conclude the sale in a shorter timeframe.

However, Mr. Fischer responded that JD Norman was the only purchaser of Eptec that GM

would approve. GM then refused to consider an alternative buyer that proposed a higher

purchase price. In essence, GM managed the sale process by refusing to qualify any buyer other

than JD Norman. In light of GM's position and Mr. Fischer's statement that GM would pull

GM's business from Eptec if JD Norman was not the buyer, I confirmed with GM that Eptec

would not pursue sales to the alternative buyers. GM did not receive payment of proceeds from

the sale of Eptec because, as GM was aware, the available proceeds were paid to all required

creditors in accordance with the terms of the JD Norman asset purchase agreement, specifically,

the PBGC, certain secured creditors, Mexican revenue authorities, employees and vendors. A de

minimis reserve was also established to pay certain other administrative claims. Finally, as to

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obtaining the PBGC's consent, GM is wrong. PBGC consent was not only timely obtained but

the sale could not have been completed without it.

22. GM alleges three defaults related to the sale of Aarkel. First, GM alleges

that the sale of the equity of Aarkel's parent, RWCI, was not the sale of Aarkel's asset as

required under the Sale Support Agreement. GM was an active participant in the sale of Aarkel

and consented to the process by which the equity of its parent (RWCI) was sold by Revstone. At

no time during Aarkel sale process did GM object to or allege that the sale of RWCI's equity was

a default under the Sale Support Agreement. GM's belated distinction about the sale of the

equity versus the sale of the assets is meritless because GM's objective was met. Aarkel is no

longer connected in any way to Hofineister and is now owned by a new entity to which GM has

already awarded business. Second, GM complains that the Aarkel sale milestone was missed.

Once a purchaser acceptable to GM was selected, GM held up the sale process by refusing to

consent to the sale unless it received an agreement that $6.4 million of sale proceeds would be

segregated. Third, GM, similar to the Eptec alleged default, asserts that PBGC consent was not

timely obtained. The PBGC's consent was obtained and the Aarkel sale was completed,

satisfying GM's objective. Finally, GM cites the failure to pay the proceeds of the Aarkel Sale

as another default. As this Court is aware, the proceeds from the sale of Aarkel were first

segregated and then subject to a dispute between Revstone and Aarkel. Such dispute was later

resolved in Revstone's favor. It was also made clear that any amounts allegedly owing to GM

were reserved- at TPOP and remain there subject to the resolution of this dispute.

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23. The alleged events of default related to Eptec and Aarkel are also not

material. Both sales were not the primary focus of the Sale Support Agreement. GM repeatedly

emphasized that it wanted the Metavation sale closed as soon as possible. GM's timing demands

were met. GM lead me to believe that the other sales could proceed in a less compressed

timeframe despite the milestones set forth in the Sale Support Agreement

24. The sales of the Businesses other than Metavation and Contech were

secondary objectives that were tied to GM's demand that all entities in its supply chain with ties

to George Hofineister find new ownership. The Sale Support Agreement was designed to ensure

that the sales of Metavation and Contech were completed and the critical component parts

produced by these entities would continue. Negotiations with GM were consistent on this point.

GM tied its funding of the initial installment of the Sale Support Payment to the sale of

Metavation (and Chrysler to the sale of Contech). The Customers' expressed intent was then

manifested by the payment of the first installment of the Sale Support Payment after the

Metavation and Contech sales closed. See Sale Support Agreement, § 4.2. The sale of

Metavation and Contech also triggered GM's loan forgiveness. See Sale Support Agreement, §

5.2. The loan forgiveness became effective after the last sale (Aarkel) closed. Id.

25. The alleged Budget defaults under the DIP did not interfere with the

supply of component parts or tooling to GM's supplier base. The Debtor disputes that it was

required to find additional funding and the alleged one-week Budget shortfall was corrected the

following week without the Debtor ever exceeding the agreed upon cap on its borrowings. As

GM's own submission, demonstrates, the Debtor and GM communicated about the alleged

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Budget issues. See Amended Motion, Ex. 4. The Debtor provided a detailed executive summary

that set forth a proposed reforecast and Budget to address the need for incremental financing. Id.

The alleged Budget defaults represent nothing more than the typical weekly ebb and flow of DIP

financing. The Budget was never intended to be static. It was subject to updates based on the

Customers' production schedules. See Sale Support Agreement, § 3.2(b). Additionally, the Sale

Support Agreement contemplated that the "Budget will be increased or decreased, as applicable,

based only on variances in a Customer's production schedules ...and such adjustment will in all

cases be proportionate to the production schedule variance. Id. at 3.2(c). Moreover, it was

contemplated that the Budget would be updated periodically by Metavation working with GM

and Chrysler. Id. at 3.2(e). Therefore, GM cannot reasonably argue that Metavation failed to

comply with the Budget requirements under the Sale Support Agreement.

26. Finally, while GM did provide notice of the existence of the events of

default via email in August 2013 and again by letter in October 2013, it never asserted that the

non-occurrence of events of default were conditions precedent to its performance. That the

contractual provisions that comprise the events of default were "conditions precedent" is a legal

argument that GM has now asserted to avoid its remaining obligations under the Sale Support

Agreement. GM's argument ignores the fact that the only conditions precedent in the Sale

Support Agreement were the items required to be delivered under section 1.1 —which conditions

precedent were satisfied.

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D. GM is Not Entitled to Repayment and Q«yes the Debtor Money

27. The Debtor, not GM, is entitled to receive payment under the Sale Support

Agreement. The Debtor, through the application of contractually required forgiveness of the

Post-Petition Loans and the second installment of the Sale Support Payment, together with the

correct interest rate and setoff of unpaid invoices of $322,616.15, does not owe money to GM.

28. In its Amended Objection, GM asserts four amounts that comprise the

$6.3 million in Retained Participations it alleges are owed. First, GM is not entitled to

repayment of $1,706,500 of that amount because it did not loan these funds and never purchased

a participation interest in this amount. Accordingly, this amount should not be included in the

Retained Participations.

29. The second amount, $1,848,765, is offset by (i) the remaining balance of

the $4,000,000 ofPost-Petition Loan forgiveness in the amount of $1,269,600 that GM is

required to provide under the Sale Support Agreement, (ii) the correct interest rate calculation

and (iii) the offset of unpaid invoices that GM was required to pay under the Sale Support

Agreement in the amount of $323,616.15.

30. GM's third amount, for $2.5 million, represents GM's portion of the Sale

Support Indebtedness constituting a Retained Participation under the Sale Support Agreement.

This amount is erased by application of GM's portion of the second installment of the Sale

Support Payment in the amount of $3,800,000. The second installment of the Sale Support

Payment became due and owing upon the closing of the Aarkel sale. See Sale Support

Agreement, § 4.2. GM never made the second Sale Support Payment and has refused to do so to

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date. Additionally, repayment of the Sale Support Indebtedness was not due unless and until

GM paid the second installment of the Sale Support Payment. The Debtor did not agree to repay

the Sale Support Indebtedness without having received the remaining Sale Support Payment.

31. Finally, the Debtor disputes that GM was not informed that it owed the

Debtor money for unpaid invoices. Moreover, the wire payment referred to by GM in its reply

did not satisfy the amounts owed for the unpaid invoices.

E. GM Interfered With the Sales of the Businesses

32. GM was required to "use good faith reasonable efforts to assist in the

closing of the sales of the Business to Qualified Buyers." See Sale Support Agreement, § 3.8.

GM did not always act in good faith in connection with the sales of the Businesses. Specifically,

GM interfered with the sale of the Eptec Non-Damper Business. GM also delayed the sale of

Aarkel in bad faith.

33. With regard to Eptec Non-Damper, GM refused to meet with prospective

buyers other than JD Norman even though the other prospective buyers may have paid more and

the sales could be completed sooner. GM also resourced certain parts produced by Eptec, during

the sale process, which action adversely affected revenues and profitability and drove down the

purchase price. Ultimately, GM's refusal to consent to an alternative proposed purchaser and its

resourcing of certain parts negatively impacted the purchase price and altered the timeline of the

sale of the Eptec Non-Damper Business.

34. Second, GM refused to consent to the sale of Aarkel unless Revstone

agreed to segregate over $6.4 million of sale proceeds and stipulated as to language in the sale

order regarding certain potential claims against GM for interfering with the sale of Aarkel. GM

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was aware that the proposed purchaser of RWCI, the parent of Aarkel, would not proceed unless

GM consented to the sale and released it claims against Aarkel. Using this knowledge as

leverage, GM delayed the sale until its demands were met.

F. The Debtor Substantially Performed Its Obligations Under the Sale Support

Agreement

35. The purpose of the Sale Support Agreement was to maintain and ensure

that GM would receive its critical supply of component parts and tooling. GM does not dispute

that this goal was accomplished. At all times during the course of performance under the Sale

Support Agreement, GM never sought to exercise its remedies. GM participated in and approved

the sales of the Businesses to acceptable purchasers.

36. The funds that GM provided to the Debtor were meant to ensure that the

Debtor (and other members of the Revstone Group) had sufficient liquidity to maintain the

critical flow of component parts. In return for the uninterrupted supply of component parts, GM

agreed to pay the Sale Support Payment and forgive the loans it provided. The funds provided

by GM were not intended to enable GM to reap a windfall profit. Permitting GM to recover the

millions of dollars in funds that GM pledged to forgive at the same time it benefited from what it

contractually bargained to receive would be the antithesis of the purpose of the Sale Support

Agreement.

Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing

is true and correct.

Dated: December 2, 2014

John C. DiDonatoChief Restructuring OfficerTPOP,LLC

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