JONES DAY 

Daniel T. Moss (Va. Bar No. 91974) 

J. Ryan Sims (Va. Bar No. 91076) 

51 Louisiana Avenue, N.W. 

Washington, D.C. 20001 

Tel: (202) 879-3794 

Fax: (202) 626-1700 

Bruce Bennett (admitted pro hac vice) 

Michael Schneidereit (admitted pro hac vice) 

555 South Flower Street 

Fiftieth Floor 

Los Angeles, California 90071 

Tel: (213) 489-3939 

Fax: (213) 243-2539 

Proposed Counsel to the Official Committee of 

Unsecured Creditors 

IN THE UNITED STATES BANKRUPTCY COURT 

FOR THE EASTERN DISTRICT OF VIRGINIA 

RICHMOND DIVISION 

-------------------------------------------------------------------- x 

In re: 

TOYS “R” US PROPERTY COMPANY I, LLC, et al.1

Debtors 

) 

) 

) 

) 

) 

) 

) 

) 

Case No. 

18-31429 (KLP) 

Chapter 11 

 

(Jointly Administered) 

------------------------------------------------------------------ X 

MOTION OF THE OFFICIAL COMMITTEE OF UNSECURED CREDITORS TO 

ESTABLISH GUIDELINES FOR THE SHARING OF INFORMATION WITH 

UNSECURED CREDITORS 

 The Official Committee of Unsecured Creditors (the “Committee”) appointed in the abovecaptioned cases hereby seeks the entry of an order, pursuant to sections 1102(b)(3) and 105(a) of 

title 11 of the United States Code (the “Bankruptcy Code”), establishing protocols with respect to 

 

1

 The case numbers for the affiliated debtors Toys "R" Us Property Company I, LLC, MAP Real 

Estate, LLC, TRU 2005 RE I, LLC, TRU 2005 RE II Trust, Wayne Real Estate Company, LLC, and Wayne Real 

Estate Holding Company, LLC (collectively, the "Propco I Debtors"), along with the last four digits of each Propco 

I Debtor's federal tax identification number, are set forth in the Propco I Debtors' Motion for Entry of an Order (I) 

Directing Joint Administration of the Propco I Chapter 11 Cases and (II) Granting Related Relief [Docket No. 3]. 

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the Committee’s sharing of information with unsecured creditors that are not members of the 

Committee and determining that the Committee has no obligation to provide confidential or 

privileged information to such non-members. A proposed form of order is attached hereto as 

Exhibit A. In support of this Motion, the Committee respectfully represents as follows: 

JURISDICTION AND VENUE 

1. The United States Bankruptcy Court for the Eastern District of Virginia (the 

“Court”) has jurisdiction over this matter pursuant to 28 U.S.C. §§ 157 and 1334 and the Standing 

Order of Reference from the United States District Court for the Eastern District of Virginia, dated 

July 10, 1984. This is a core proceeding pursuant to 28 U.S.C. § 157(b). Venue is proper before 

this Court pursuant to 28 U.S.C. §§ 1408 and 1409. 

BACKGROUND 

2. On May 23, 2018, the Office of the United States Trustee for the Eastern District 

of Virginia appointed the Official Committee of Unsecured Creditors (the “Committee”) for Toys 

“R” Us Property Company I (“Propco I”) and its co-debtors and debtors-in-possession 

(collectively, the “Debtors”), in the above-captioned cases. See Docket No. 146. The Committee 

consists of the following five members: (1) Cantor Fitzgerald Securities; (2) DDR Corp.; (3) 

Empyrean Investments, LLC; (4) GGP Limited Partnership; and (5) Glendon Capital Management, 

LP (each, a “Member”). 

A. Committee By-Laws and Confidentiality Provisions 

3. The Committee has adopted by-laws under which the Members each agree to keep 

confidential the following categories of information (collectively, the “Confidential Material”): 

 Confidential Debtor Information: non-public information, documents, communications 

and matters of whatever nature and kind disclosed to the Committee or its representatives 

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by or on behalf of the Debtors, whether in writing or orally or in any other format, and 

designated or marked as confidential by the Debtors; 

 Privileged Information: information or documents generated by the Committee, or by any 

of the Committee’s professionals, or by any Member or counsel to any Member for the use 

of the Committee; and 

 Confidential Communications: communications among Members in their capacity as such 

and communications among Committee professionals and the Committee, including 

information regarding specific positions taken by Members. 

4. The confidentiality obligations under the By Laws are subject to certain exceptions 

and carve-outs. For example, Confidential Debtor Information may be disclosed in compliance 

with an agreement between the Committee and the Debtors, or by order of the Bankruptcy Court. 

Likewise, Privileged Information or Confidential Communications may be disclosed if consented 

to by a majority of Members. 

RELIEF REQUESTED 

5. By way of this Motion, the Committee seeks an order that sets forth reasonable 

protocols, consistent with Section 1102(b)(3) of the Bankruptcy Code, for the sharing of 

information with unsecured creditors that are not Members, but does not obligate the Committee 

to share Confidential Material with non-Members. The relief requested herein is substantially the 

same as the relief granted in In re Toys “R”Us, Inc., et al., Case No. 17-34665 (KLP) (Bankr. E.D. 

Va. Sept. 19, 2017). See Order Approving Motion of the Official Committee of Unsecured 

Creditors to (A) Clarify Requirement and Establish Information Sharing Procedures and (B) 

Obtain Related Relief [Docket No. 1376 in Case No. 17-34665 (KLP)]. 

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6. The Committee thus proposes the following information sharing procedures (the 

“Procedures”): 

a. Access to Information. 

i. Website: The Committee proposes to retain Kurtzman Carson Consultants 

LLC (“KCC”)2 to establish and maintain a website (the “Website”) that 

will be updated with pertinent publically-available case information as the 

Committee deems appropriate in its reasonable judgment, including, 

without limitation: 

1. a link or other form of access to the court docket and claims 

register available at the Debtor’s website at 

https://cases.primeclerk.com/toyspropcoI 

2. the posting of significant dates in these cases; 

3. an email address or link for the Debtors’ unsecured creditors to 

submit questions, comments, and requests for access to 

information; 

4. links to relevant bankruptcy websites; and 

5. the names and related contact information for the Debtors and the 

Committee and their respective counsel. 

ii. Scheduled Calls. The Committee proposes to schedule calls open to 

general (non-Member) unsecured creditors, insofar as deemed necessary 

in the discretion of the Committee, to provide updates on significant 

 

2

 The Committee has contemporaneously filed with this motion the Application for an Order (I) 

Authorizing the Official Committee of Unsecured Creditors to Retain and Employ Kurtzman Carson Consultants 

LLC as Informative Agent, Nunc Pro Tunc to May 23, 2018 and (II) Granting Related Relief. 

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developments in the chapter 11 cases. The Committee intends to provide 

a link on the Website for unsecured creditors to sign up for such update 

calls. Only verified creditors holding unsecured claims against the 

Debtors shall be permitted to listen to or participate in such calls. 

b. Non-Disclosure of Confidential Material. The Committee will have no obligation 

to disclose Confidential Material to any unsecured creditor that is not a Member. 

c. Creditor Information Requests. Utilizing their reasonable discretion, the 

Committee or counsel for the Committee will respond to each written (including 

electronic mail) or telephonic inquiry or request for information or documents 

(each, an “Information Request”) received from an unsecured creditor of the 

Debtors ( “Requesting Creditor”) within 30 days of receipt. Such response will 

either provide the Requesting Creditor with access to the requested information or 

explain why the Committee will not provide the information or documents 

included in the Information Request. 

d. Denial of Informational Request. If the Committee determines that it is unable to 

provide information or documents to a Requesting Creditor, such Requesting 

Creditor may seek to meet and confer (a “Meet and Confer”) with an authorized 

representative of the Committee or Committee counsel to discuss the denial of the 

Information Request and resolve any potential dispute relating to the denial. If, 

after the occurrence of a Meet and Confer, any dispute relating to an Information 

Request remains unresolved, the Requesting Creditor may file a motion seeking to 

compel the Committee to provide the information or documents included in the 

Information Request for cause. Any such motion must be served and the hearing 

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on such motion will be noticed and scheduled pursuant to the Bankruptcy Rules, 

the local rules of this Court and any applicable case management order entered in 

these chapter 11 cases. 

e. Requesting Creditors’ Compliance with Applicable Securities or Other Laws. To 

the extent the Committee satisfies an Information Request, the Committee will 

have no responsibility for any Requesting Creditor’s compliance with, or liability 

or violation of, applicable securities or other laws. 

BASIS FOR RELIEF REQUESTED 

7. Section 1102(b)(3) of the Bankruptcy Code provides: 

(3) A committee appointed under subsection (a) shall— 

(A) provide access to information for creditors who— 

(i) hold claims of the kind represented by that committee; and 

(ii) are not appointed to the committee; 

(B) solicit and receive comments from the creditors described in 

subparagraph (A); and 

(C) be subject to a court order that compels any additional report or 

disclosure to be made to the creditors described in subparagraph (A). 

11 U.S.C. § 1102(b)(3). 

8. Courts have recognized that Section 1102(b)(3) does not provide clear guidance as 

to what precise information must be shared by a committee with non-committee members. See In 

re Refco, 336 B.R. 187, 190 (Bankr. S.D.N.Y. 2006) (noting the “statute’s ambiguity and unhelpful 

legislative history”). 

9. Despite this lack of guidance, the Refco court approved information sharing 

procedures similar to those proposed in this motion on the basis that they struck an appropriate 

balance between the need to protect sensitive or privileged information and comply with the 

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securities laws on the one hand, and the right of unsecured creditors to be informed of material 

developments on the other hand. As explained by the Refco court, interpreting Section 1102(b)(3) 

so broadly as to require the disclosure of confidential or privileged information could undermine 

the effective functioning of a committee. Id. at 195. The court in Refco ultimately concluded: 

[T]he balance has been achieved by not requiring in the first 

instance—that is, without further court order—the Committee's 

disclosure of information (a) that could reasonably be determined to 

be confidential and non-public or proprietary, (b) the disclosure of 

which could reasonably be determined to result in a general waiver 

of the attorney-client or other applicable privilege, or (c) whose 

disclosure could reasonably be determined to violate an agreement, 

order or law, including applicable securities laws. . . . 

Id. at 197–98; see In re MF Glob. Holdings Ltd., No. 11-15059 MG, 2012 WL 734195, at *5 

(Bankr. S.D.N.Y. Mar. 6, 2012) (citing Refco); In re S & B Surgery Ctr., Inc., 421 B.R. 546, 549 

(Bankr. C.D. Cal. 2009) (same). Moreover, as noted by the court in MF Global Holdings, 

protocols of the sort proposed in this Motion have “become commonplace in chapter 11 cases.” 

MF Glob. Holdings, 2012 WL 734195, at *5 (citing In re Tronox Inc., No. 09–10156 

(Bankr.S.D.N.Y Feb. 27, 2009) (ECF Doc. # 208); In re Frontier Airlines Holdings, Inc., No. 08–

11298 (Bankr.S.D.N.Y June 3, 2008) (ECF Doc. # 315); In re Dana Corp., No. 06–10354 

(Bankr .S.D.N.Y. March 29, 2006) (ECF Doc. # 737); In re Mesa Air Grp., No. 10–10018 

(Bankr.S.D.N .Y. Feb. 25, 2010) (ECF Doc # 365) and In re Metaldyne Corp., No. 09–13412 

(Bankr.S.D.N.Y. July 20, 2009) (ECF Doc. # 459)). The protocols proposed in this Motion are 

arguably even broader in scope than those implemented in the Refco case as they include a 

proposed update calls that would be open to all of the Debtors’ verified unsecured creditors.

10. The relief sought by way of this Motion is further authorized by Section 105(a) of 

the Bankruptcy Code, which permits the court to “issue any order . . . that is necessary or 

appropriate to carry out the provisions of this title.” 11 U.S.C. §105(a). In addition, section 107(b) 

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of the Bankruptcy Code and Bankruptcy Rule 9018 both provide the Court with the ability to 

protect the confidential information described herein from disclosure. 11 U.S.C. §107(b); Fed. R. 

Bankr. P. 9018. 

WAIVER OF MEMORANDUM OF POINTS AND AUTHORITIES

11. As this Motion sets forth the relevant law, the Committee respectfully requests this 

Court to treat this Motion as a written memorandum of points and authorities or waive any 

requirement that a memorandum of law be filed as described in Local Bankruptcy Rule 9013-1(G). 

NOTICE 

12. The Committee will provide notice of this Application via first class mail and email 

(where available) to: (a) the Office of the United States Trustee for the Eastern District of Virginia, 

Attn: Robert B. Van Arsdale and Lynn A. Kohen; (b) the holders of the 30 largest unsecured claims 

against the Propco I Debtors (on a consolidated basis); (c) DIP ABL Agent and the advisors and 

counsel thereto; (d) DIP Taj Term Loan Agent and the advisors and counsel thereto; (e) DIP 

Delaware Term Loan Agent and the advisors and counsel thereto; (f) the indenture trustee for the 

TRU Taj 12.00% Senior Notes and the advisors and counsel thereto; (g) the administrative agent 

for the prepetition Secured Revolving Credit Facility and the advisors and counsel thereto; (h) the 

administrative agent for the prepetition Secured Term Loan B Facility and the advisors and counsel 

thereto; (i) the prepetition administrative agent for the Propco I Unsecured Term Loan Facility and 

the advisors and counsel thereto; (j) the agent for the Propco II Mortgage Loan and the advisors 

and counsel thereto; (k) the agent for the Giraffe Junior Mezzanine Loan and the advisors and 

counsel thereto; (l) the administrative agent for the prepetition European and Australian AssetBased Revolving Credit Facility (“Euro ABL”) and the advisors and counsel thereto; (m) the 

administrative agent for the Senior Unsecured Term Loan Facility and the advisors and counsel 

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thereto; (n) the indenture trustee for the Toys “R” Us Debtors’ 7.375% Senior Notes and the 

advisors and counsel thereto; (o) the indenture trustee for the Toys “R” Us Debtors’ 8.75% 

Unsecured Notes and the advisors and counsel thereto; (p) counsel to the ad hoc group of the Term 

B-4 Holders; (q) counsel to the Ad Hoc Committee of Taj Noteholders; (r) the monitor in the 

CCAA proceeding and counsel thereto; (s) the Toys “R” Us Debtors’ Canadian Counsel, (t) the ad 

hoc group of lenders under that certain Credit Agreement, dated as of August 21, 2013 (the “Propco 

I Credit Agreement”); (u) Strategic Asset Services, LLC as a lender under the Propco I Credit 

Agreement; (v) Akin Gump Strauss Hauer & Feld LLP as counsel to Strategic Asset Services, 

LLC; (w) the Internal Revenue Service; (x) the office of the attorneys general for the states in 

which the Propco I Debtors operate; (y) the Securities and Exchange Commission; and (z) any 

party that has requested notice pursuant to Bankruptcy Rule 2002 (collectively, the “Notice 

Parties”). The Committee submits that, in light of the nature of the relief requested, no other or 

further notice need be given. 

NO PRIOR REQUEST 

13. No previous request for the relief sought herein has been made to this or any other 

court. 

CONCLUSION 

14. WHEREFORE, The Committee respectfully requests that the Court (i) grant the 

Motion and enter the Order establishing information sharing protocols and (ii) grant any such 

further relief as it deems just and proper. 

 

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Richmond, Virginia 

Dated: June 29, 2018. By: 

/s/ Daniel T. Moss_________ 

Daniel T. Moss (Va. Bar No. 91974) 

J. Ryan Sims (Va. Bar No. 91076) 

JONES DAY 

51 Louisiana Avenue, N.W. 

Washington, D.C. 20001 

Tel: (202) 879-3794 

Fax: (202) 626-1700 

dtmoss@jonesday.com 

rsims@jonesday.com 

Bruce Bennett (admitted pro hac vice) 

Michael Schneidereit (admitted pro hac vice) 

JONES DAY 

555 South Flower Street 

Fiftieth Floor 

Los Angeles, California 90071 

Tel: (213) 489-3939 

Fax: (213) 243-2539 

bbennett@jonesday.com 

mschneidereit@jonesday.com 

Proposed Counsel to the Official Committee of 

Unsecured Creditors 

CERTIFICATE OF SERVICE 

 I hereby certify that, on June 29, 2018, a true and correct copy of the foregoing document 

was served via email through the Bankruptcy Court’s Electronic Case Filing System on the 

parties that have consented to such service. 

/s/ Daniel T. Moss_________ _______ 

Daniel T. Moss (Va. Bar No. 91974) 

JONES DAY 

51 Louisiana Avenue, N.W. 

Washington, D.C. 20001 

Tel: (202) 879-3794 

Fax: (202) 626-1700 

dtmoss@jonesday.com 

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EXHIBIT A 

Proposed Order 

 

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JONES DAY 

Daniel T. Moss (Va. Bar No. 91974) 

J. Ryan Sims (Va. Bar No. 91076) 

51 Louisiana Avenue, N.W. 

Washington, D.C. 20001 

Tel: (202) 879-3794 

Fax: (202) 626-1700 

Bruce Bennett (admitted pro hac vice) 

Michael Schneidereit (admitted pro hac vice) 

555 South Flower Street 

Fiftieth Floor 

Los Angeles, California 90071 

Tel: (213) 489-3939 

Fax: (213) 243-2539 

Proposed Counsel to the Official Committee of 

Unsecured Creditors 

IN THE UNITED STATES BANKRUPTCY COURT 

FOR THE EASTERN DISTRICT OF VIRGINIA 

RICHMOND DIVISION 

-------------------------------------------------------------------- x 

In re: 

TOYS “R” US PROPERTY COMPANY I, LLC, et al.1

Debtors 

) 

) 

) 

) 

) 

) 

) 

) 

Case No. 

18-31429 (KLP) 

Chapter 11 

 

(Jointly Administered) 

------------------------------------------------------------------ X 

ORDER APPROVING MOTION OF THE OFFICIAL COMMITTEE OF UNSECURED 

CREDITORS TO ESTABLISH GUIDELINES FOR THE SHARING OF 

INFORMATION WITH UNSECURED CREDITORS 

 Upon the motion (the “Motion”)2 of the Official Committee of Unsecured Creditors (the 

“Committee”)3 appointed in the above-captioned cases for entry of an order (this “Order”): (a) 

                                                            

1

   The case numbers for the affiliated debtors Toys "R" Us Property Company I, LLC, MAP Real Estate, LLC, 

TRU 2005 RE I, LLC, TRU 2005 RE II Trust, Wayne Real Estate Company, LLC, and Wayne Real Estate Holding 

Company, LLC (collectively, the "Propco I Debtors"), along with the last four digits of each Propco I Debtor's 

federal tax identification number, are set forth in the Propco I Debtors' Motion for Entry of an Order (I) Directing 

Joint Administration of the Propco I Chapter 11 Cases and (II) Granting Related Relief [Docket No. 3]. 

2

 Capitalized terms used but not otherwise defined herein have the meanings ascribed to them in the Motion. 

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2 

establishing protocols with respect to the Committee’s sharing of information with unsecured 

creditors that are not members of the Committee, (b) determining that the Committee has no 

obligation to provide confidential or privileged information to such non-members, and (c) 

granting related relief, all as more fully set forth in the Motion; and this Court having jurisdiction 

over this matter pursuant to 28 U.S.C. §§ 157 and 1334 and the Standing Order of Reference 

from the United States District Court for the Eastern District of Virginia, dated July 10, 1984; 

and this Court having found that it may enter an order consistent with Article III of the United 

States Constitution; and this Court having found that venue of this proceeding and the Motion in 

this district is proper pursuant to 28 U.S.C. §§ 1408 and 1409; and this Court having found that 

the relief requested in the Motion is in the best interests of the Debtors’ estates, their creditors, 

and other parties in interest; and this court having found that the Committee’s notice of the 

Motion and opportunity for a hearing on the Motion were appropriate under the circumstances 

and that no other notice need be provided; and this Court having reviewed the Motion and having 

hearing the statements in support of the relief requested herein at a hearing before this Court (the 

“Hearing”); and this Court having determined that the legal and factual bases set forth in the 

Motion and at the Hearing establish just cause for the relief granted herein; and upon all of the 

proceedings had before this Court; and after due deliberation and sufficient cause appearing 

therefor, it is HEREBY ORDERED THAT: 

1. The Motion is granted as set forth herein. 

                                                                                                                                                                                                3

   The members (“Members”) of the Committee are (1) Cantor Fitzgerald Securities (“CFS”), as the 

administrative agent (the “Agent”) under that certain Term Loan Credit Agreement, dated as of August 21, 2013 (as 

amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), among Toys 

“R” Us Property Company I, LLC, as borrower, the lending institutions from time to time party thereto (the 

“Lenders”), and the Agent; (2) DDR Corp. (“DDR”), (3) Empyrean Investments, LLC (“Empyrean”); (4) GGP 

Limited Partnership (“GGP”); and (5) Glendon Capital Management, LP (“Glendon”).

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3 

2. The Procedures (as defined below) for the Committee’s dissemination of 

information and compliance with the requirements set forth in Section 1102(b) of the Bankruptcy 

Code are hereby approved. 

3. In full satisfaction of the Committee’s obligations to provide general unsecured 

creditors with access to information pursuant to Section 1102(b)(3)(A) and (B), the Committee 

shall establish and maintain the following information sharing procedures (the “Procedures”), as 

may be necessary and appropriate, until the earliest to occur of: (i) dissolution of the Committee, 

dismissal or conversion of the above-captioned chapter 11 cases, or (ii) a further order of this 

Court (collectively, the “Termination Date”): 

a. Access to Information: 

i. Website: The Committee will establish and maintain, or will retain a 

professional to establish and maintain, a website (the “Website”) that will 

be updated with pertinent publically-available case information as the 

Committee deems appropriate in its reasonable judgment, including, 

without limitation: 

1. a link or other form of access to the court docket and claims 

register available at the Debtor’s website at 

https://cases.primeclerk.com/toyspropcoI; 

2. the posting of significant dates in these cases; 

3. an email address or link for the Debtors’ unsecured creditors to 

submit questions, comments, and requests for access to 

information; 

4. links to relevant bankruptcy websites; and 

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4 

5. the names and related contact information for the Debtors and the 

Committee and their respective counsel. 

ii. Scheduled Calls. The Committee proposes to schedule calls open to 

general (non-Member) unsecured creditors, insofar as deemed necessary 

in the discretion of the Committee, to provide updates on significant 

developments in the chapter 11 cases. The Committee intends to provide a 

link on the Website for unsecured creditors to sign up for such update 

calls. Only verified creditors holding unsecured claims against the 

Debtors shall be permitted to listen to or participate in such calls. 

b. Non-Disclosure of Confidential Material. The Committee will have no obligation 

to disclose Confidential Material to any unsecured creditor that is not a Member. 

c. Creditor Information Requests. Utilizing their reasonable discretion, the 

Committee or counsel for the Committee will respond to each written (including 

electronic mail) or telephonic inquiry or request for information or documents 

(each, an “Information Request”) received from an unsecured creditor of the 

Debtors ( “Requesting Creditor”) within 30 days of receipt. Such response will 

either provide the Requesting Creditor with access to the requested information or 

explain why the Committee will not provide the information or documents 

included in the Information Request. 

d. Denial of Informational Request. If the Committee determines that it is unable to 

provide information or documents to a Requesting Creditor, such Requesting 

Creditor may seek to meet and confer (a “Meet and Confer”) with an authorized 

representative of the Committee or Committee counsel to discuss the denial of the 

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5 

Information Request and resolve any potential dispute relating to the denial. If, 

after the occurrence of a Meet and Confer, any dispute relating to an Information 

Request remains unresolved, the Requesting Creditor may file a motion seeking to 

compel the Committee to provide the information or documents included in the 

Information Request for cause. Any such motion must be served and the hearing 

on such motion will be noticed and scheduled pursuant to the Bankruptcy Rules, 

the local rules of this Court and any applicable case management order entered in 

these chapter 11 cases. 

e. Requesting Creditors’ Compliance with Applicable Securities or Other Laws. To 

the extent the Committee satisfies an Information Request, the Committee will 

have no responsibility for any Requesting Creditor’s compliance with, or liability 

or violation of, applicable securities or other laws. 

4. The Committee shall not provide or disclose in response to any Information 

Request: (i) non-public information, documents, communications and matters of whatever nature 

and kind disclosed to the Committee or its representatives by or on behalf of the Debtors, 

whether in writing or orally or in any other format, and designated or marked as confidential by 

the Debtors (collectively, “Confidential Debtor Information”); (ii) information or documents 

generated by the Committee, or by any of the Committee’s professionals, or by any Member or 

counsel to any Member for the use of the Committee (collectively, “Privileged Information”); 

and (iii) communications among Members in their capacity as such and communications among 

Committee professionals and the Committee, including information regarding specific positions 

taken by Members (collectively, “Confidential Communications”); (iv) any information, 

including the Confidential Debtor Information, covered by an applicable confidentiality 

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6 

agreement with the Committee (including its Members or professionals); (v) any other 

information the disclosure of which would constitute a breach or violation under any agreement 

or contract to which the Committee (including its Members or professionals) or the Debtors are 

parties, including, without limitation, any confidentiality agreement with the Debtors; (vi) any 

information that is subject to any protective order entered by the Court, or (vii) any other 

information the disclosure of which would constitute a waiver of any applicable privilege, 

including, without limitation, attorney-client privilege and work product privilege ((i) through 

(vii), collectively, “Confidential Material”).4

5. The Committee shall not be authorized to provide or disclose to any third party or 

its non-member constituents any Confidential Debtor Information. 

6. Any information received (formally or informally) by the Committee from any 

entity in connection with an examination pursuant to Bankruptcy Rule 2004 or in connection 

with any formal or informal discovery in any contested matter, adversary proceeding, or other 

litigation shall not be governed by the terms of this Order but, rather, by any order or agreement 

governing such discovery. 

7. If the Requesting Creditor is a competitor or prospective competitor of the 

Debtors and the Debtors or the Committee believes that the information requested reasonably 

may impair the Debtors’ business, no information will be disclosed unless the Court orders such 

disclosure after notice and a hearing. The determination that a Requesting Creditor is a 

competitor or prospective creditor is reviewable by the Court. 

                                                            

4

 For avoidance of doubt, Confidential Material shall not include any information or portions of information 

that is or becomes generally available to the public, or is or becomes available to any Member of the Committee on 

a non-confidential basis, but in any such case, only to the extent such information became available to the applicable 

parties’ knowledge without violation of a contractual, legal, or fiduciary obligation to the Debtors or any of their 

respective affiliates or representatives of which such parties are aware. Confidential Material shall also not include 

information that was, to the applicable parties’ knowledge, in the possession of, obtained by, or available to the 

Committee on a non-confidential basis from a source which is not bound by a confidentiality agreement with the 

Debtors or any other contractual, fiduciary, or other legal obligation of confidentiality to the Debtors. 

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7 

8. To the extent an agreement between the Committee and the Debtors or an order of 

the Court provides that the Committee is required to provide or disclose Confidential Material, 

the Committee shall require any Requesting Creditor to enter into a confidentiality agreement 

reasonably acceptable to the Debtors and the Committee (a “Creditor Confidentiality 

Agreement”), and the Requesting Creditor shall enter into trading restrictions with respect to 

such Confidential Material and represent that such trading restrictions and any informationscreening process comply with applicable securities laws and will reasonably protect the 

confidentiality of such information; provided, however, that neither the Committee nor the 

Debtors shall have any responsibility for any Requesting Creditor’s compliance with, or liability 

or violation of, applicable securities or other laws. 

9. For the avoidance of doubt, the terms of this Order do not supersede the terms of 

any non-disclosure agreement, protective order, or any other applicable confidentiality 

arrangement entered into or agreed to by any relevant parties. To the extent that the terms of this 

Order are inconsistent with the terms of any other agreement, stipulation, or applicable 

confidentiality arrangement entered into or agreed to by the applicable parties, the terms of such 

other arrangement shall control. 

10. Nothing herein shall preclude the Requesting Creditor from requesting (i) the 

Court to conduct an in camera review of the Information Request, or (ii) the Committee to 

prepare a log or other index of information the Requesting Creditor believes is responsive to the 

Information Request, but which the Committee believes to be Confidential Material. In addition, 

nothing herein shall preclude the Committee from objecting to such requests. 

11. The Committee shall not have or incur any liability to any entity (including the 

Debtors) for acts taken or omitted pursuant to this Order as long as the Committee has acted in 

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compliance with (i) the Procedures set forth hererin, (ii) the Order Approving Motion of 

Empyrean Investments, LLC and Glendon Capital Management, LP for Entry of an Order 

Approving Specified Information Blocking Procedures and Permitting Trading in Covered 

Claims of the Debtors Upon Establishment of A Screening Wall [Docket No. 197], (iii) the Order 

Approving Motion for Entry of an Order Approving Specified Information Blocking Procedures 

and Permitting Trading in Covered Claims of the Debtors Upon Establishment of a Screening 

Wall [Docket No. 199], (iv) any by-laws adopted by the Committee, and (v) any confidentiality 

agreement with the Debtors. However, the foregoing shall not preclude or curtail the right of any 

general unsecured creditor or any entity to move the Court for an order requiring the production 

of other or further information, to the extent available. 

12. None of the Debtors, the Committee or its Members and, in each case, any of their 

respective directors, officers, employees, members, attorneys, consultants, advisors and agents 

(acting in such capacity) (collectively, the “Exculpated Parties”), shall have or incur any liability 

to any entity (as defined in section 101(15) of the Bankruptcy Code) (each, and including the 

Debtors and their affiliates, an “Entity”) for any action taken or omitted to be taken in connection 

with the preparation, dissemination, or implementation of the Procedures, the Website and other 

information to be provided pursuant to Section 1102(b)(3) of the Bankruptcy Code; provided, 

however, that the foregoing shall not affect the liability of any Exculpated Party protected 

pursuant to this paragraph that otherwise would result from any such act or omission to the 

extent that such act or omission is determined in a final non-appealable order to have constituted 

a breach of fiduciary duty, gross negligence, or willful misconduct, including, without limitation, 

fraud and criminal misconduct, or the breach of any confidentiality agreement or order. Without 

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limiting the foregoing, the exculpation provided in this paragraph shall be coextensive with any 

Exculpated Party’s qualified immunity under applicable law. 

13. Nothing in this Order requires the Committee to provide access to information or 

solicit comments from any Entity that has not demonstrated to the satisfaction of the Committee, 

in its sole discretion, or to the Court, that it holds claims of the kind described in Section 

1102(b)(3) of the Bankruptcy Code. 

14. Nothing in this order shall diminish or modify the obligations of the Committee or 

its Members under the Committee’s by-laws or any confidentiality agreement with the Debtors, 

which obligations shall remain in full force and effect notwithstanding any provision of this 

Order. 

15. The Committee will file a separate application to retain a service provider for the 

purposes of (i) establishing and maintaining a website on behalf of the Committee and (ii) 

serving as information agent for the Committee pursuant to sections 1102(b)(3)(A) and 1103(a) 

of the Bankruptcy Code. 

16. Upon the Termination Date, the Procedures shall terminate and all reasonable 

steps to effectuate such termination shall be taken, including without limitation the termination 

of the Website. 

17. The requirement under Local Bankruptcy Rule 9013-1(G) to file a memorandum 

of law in connection with the Motion is waived. 

18. The Committee is authorized to take all actions necessary to effectuate the relief 

granted in this Order. The terms and conditions of this Order shall be immediately effective and 

enforceable upon its entry. 

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19. All time periods set forth in this Order shall be calculated in accordance with 

Bankruptcy Rule 9006(a). 

20. This Court retains exclusive jurisdiction with respect to all matters arising from or 

related to the implementation, interpretation, and enforcement of this Order. 

Dated: __________, 2018 

Richmond, Virginia ________________________________________ 

 THE HONORABLE KEITH L. PHILLIPS 

 UNITED STATES BANKRUPTCY JUDGE 

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WE ASK FOR THIS: 

By: 

/s/ Daniel T. Moss_________ 

Daniel T. Moss (Va. Bar No. 91974) 

JONES DAY 

51 Louisiana Avenue, N.W. 

Washington, D.C. 20001 

Tel: (202) 879-3794 

Fax: (202) 626-1700 

dtmoss@jonesday.com 

Proposed Counsel to the Official Committee of 

Unsecured Creditors 

CERTIFICATION OF ENDORSEMENT 

UNDER LOCAL BANKRUPTCY RULE 9022-1(C) 

 Pursuant to Local Bankruptcy Rule 9022-1(C), I hereby certify that the foregoing 

proposed order has been endorsed by or served upon all necessary parties. 

 /s/ Daniel T. Moss______

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