Case Document 2587 Filed in TXSB on 09/24/13 Page 1 of 7 UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

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1 Case Document 2587 Filed in TXSB on 09/24/13 Page 1 of 7 UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION IN RE: ATP OIL & GAS CASE NO CORPORATION, (CHAPTER 11) DEBTOR EMERGENCY MOTION OF KEN-VAC CORPORATION FOR RELIEF FROM AUTOMATIC STAY AND/OR TO MODIFY THE AUTOMATIC STAY TO FILE NOTICES OF LIS PENDENS THIS IS A MOTION FOR RELIEF FROM THE AUTOMATIC STAY. IF IT IS GRANTED, THE MOVANT MAY ACT OUTSIDE OF THE BANKRUPTCY PROCESS. IF YOU DO NOT WANT THE STAY LIFTED, IMMEDIATELY CONTACT THE MOVING PARTY TO SETTLE. IF YOU CANNOT SETTLE, YOU MUST FILE A RESPONSE AND SEND A COPY TO THE MOVING PARTY AT LEAST 7 DAYS BEFORE THE HEARING. IF YOU CANNOT SETTLE, YOU MUST ATTEND THE HEARING. EVIDENCE MAY BE OFFERED AT THE HEARING AND THE COURT MAY RULE. REPRESENTED PARTIES SHOULD ACT THROUGH THEIR ATTORNEY. THERE WILL BE A HEARING ON THIS MOTION ON OCT. 3, 2013 AT 1:30 P.M. AT 515 RUSK, COURTROOM 404, HOUSTON, TEXAS EMERGENCY RELIEF HAS BEEN REQUESTED. IF THE COURT CONSIDERS THE MOTION ON AN EMERGENCY BASIS, THEN YOU WILL HAVE LESS THAN 21 DAYS TO ANSWER. IF YOU OBJECT TO THE REQUESTED RELIEF OR IF YOU BELIEVE THAT THE EMERGENCY CONSIDERATION IS NOT WARRANTED, YOU SHOULD FILE AN IMMEDIATE RESPONSE. TO THE HONORABLE COURT: COMES NOW Ken-Vac Corporation ( KVC ) and moves this Court for relief and/or modification of the automatic stay to file notice of lis pendens and, in support thereof, shows: INTRODUCTION KVC holds valid, perfected statutory liens in the principal amount of $236, secured by various assets of the Debtor s estate. In order for KVC to preserve its liens against third parties 1

2 Case Document 2587 Filed in TXSB on 09/24/13 Page 2 of 7 under Section 9:4865 of the Louisiana Oil Well Lien Act ( LOWLA ), it is required file notices of lis pendens in the mortgage records for the parishes in which the Subject Properties are located within thirty (30) days from filing of the Adversary Proceeding. The purpose of filing the notices of lis pendens is to comply with the statutory requirements under LOWLA and provide third parties notice of the pendency of the Adversary Proceeding in this Court. Accordingly, KVC seeks relief from the stay so that it may file its Notices of Lis Pendens in accordance with La. Rev. Stat. 9:4865, which is adopted as federal law under the Outer Continental Shelf Lands Act, 43 U.S.C. 1349(b)(1). EMERGENCY RELIEF 1. KVC seeks Emergency Relief to permit an order to be entered in sufficient time to file Notices of Lis Pendens. Under LOWLA, a Notice of Pendency of Action must be filed within 30 days of the filing of an action to maintain a lien. La. Rev. Stat. Ann. 9:4865. KVC filed its Adversary Proceedings on September 19, 2013 and therefore would have until October 18, 2013 to file Notices of Lis Pendens to comply with state law. Expedited hearing is necessary to obtain stay relief from the Court prior to that date. JURISDICTION 2. This Court has jurisdiction over this matter pursuant to 28 U.S.C. 157 and CORE PROCEEDING 3. This is a core proceeding under 28 U.S.C. 157(b)(2)(G). PROCEDURE 4. This matter is governed by 11 U.S.C. 362 and Federal Rule of Bankruptcy 2

3 Case Document 2587 Filed in TXSB on 09/24/13 Page 3 of 7 Procedure VENUE 5. The venue of this case and this Motion is proper under 28 U.S.C and BACKGROUND 6. On August 17, 2012 (the Petition Date ), the Debtor filed a voluntary petition for relief under Chapter 11 of Title 11 of the United States Code (the Bankruptcy Code ) in the United States Bankruptcy Court for the Southern District of Texas, Houston Division (the Court ). 7. On or before July 4, 2009, KVC began providing logistical services, labor, equipment, materials and supplies to Debtor pursuant to contracts with the Debtor in connection with the Debtor s oil and gas operations offshore and adjacent to the State of Louisiana located within federal oil and gas lease blocks within the Outer Continental Shelf Gulf of Mexico, including OCS Lease No. G16661 (the OCS Lease ). 8. Specifically, KVC provided services, labor, equipment, materials and supplies for the following wells on the OCS Lease: FIELD: Mississippi Canyon Block #941 WELL: OCS Lease No. G16661 # A-2, A-3 and 4 Collectively, the fields, wells, and lease described above are the Subject Properties. 9. In accordance with La. R.S. 9:4865(A)(1), KVC timely preserved the efficacy of its liens as to third parties by recording Statements of Privilege and Notice of Claim of Lien in the relevant jurisdictions on September 20, 2012 (collectively, the Lien Affidavits ). 1 1 See Docket No. 473 and the exhibits thereto. 3

4 Case Document 2587 Filed in TXSB on 09/24/13 Page 4 of On September 26, 2012, KVC filed its Notice of Perfection of Section 546 Interests in Property of the Estate ( Notice of Perfection ) in the Bankruptcy Case (Doc. # 473). 11. On February 15, 2013, KVC filed its Lien Identification Statement in the Bankruptcy Case pursuant to the Order Approving the Lien Identification Process and Other Related Relief (Doc. # 1213). 12. On September 19, 2013, in accordance with La. R.S. 9:4865, KVC filed its Original Complaint for Declaratory Judgment Regarding Validity, Priority and Extent of Liens under Bankruptcy Rule 7001(2) and to Enforce Liens against the Debtor, Credit Suisse AG, Cayman Islands Branch ( Credit Suisse ) and The Bank of New York Mellon Trust Company, N.A. ( BNY ) seeking, inter alia, determination of the existence, validity, amount and priority of its liens and a declaratory judgment determining that KVC s liens are superior to the mortgages held by Credit Suisse and BNY, and the liens granted under the DIP Liens, the DIP Credit Agreement and DIP Financing Order, and payment as such according to the terms of the proposed Asset Purchase Agreement ( APA ), Adversary No ( Adversary Proceeding ). LAW AND ARGUMENT A. Standard for Relief from the Stay 13. Section 362(d) of the Bankruptcy Code provides in part: (d) On request of a party in interest and after notice and a hearing, the court shall grant relief from the stay provided under subsection (a) of this section such as by terminating, annulling, modifying, or conditioning such stay (1) for cause, including the lack of adequate protection of an interest in property of such party in interest 14. The courts have interpreted the language of 362(d)(1) to include a broad set of 4

5 Case Document 2587 Filed in TXSB on 09/24/13 Page 5 of 7 circumstances constituting cause for stay relief. See, e.g., In re Texas State Optical, Inc., 188 B.R. 552, 556 (Bankr. E.D. Tex. 1995), citing In re Sentry Park, Ltd., 87 B.R. 427, 430 (Bankr. W.D. Tex. 1988) ( Cause is an intentionally broad and flexible concept that permits the Bankruptcy Court, as a court of equity, to respond to inherently fact-sensitive situations); see, e.g., In re Robbins, 964 F.2d 342, 346 (4th Cir. 1992) (concluding cause exists where lifting the stay will promote judicial economy); 3 COLLIER ON BANKRUPTCY [3][a], at (15th ed. rev. 2005); see also In re Cueva, 371 F.3d 232, 236 (5th Cir. 2004). 15. Whether cause exists to grant stay relief must be determined on a case by case basis based upon the totality of the circumstances in each particular case. Matter of Reitnauer, 152 F.3d 341, 343 n. 4 (5th Cir. 1998), citing Robbins, 964 F.2d at 345; In re Wilson, 116 F.3d 87, 90 (3rd Cir. 1997). The decision to lift the stay is discretionary with the bankruptcy judge, and may be reversed only upon a showing of abuse of discretion. Matter of Mendoza, 111 F.3d 1264, 1266 (5th Cir.1997); In re Dixie Broad., Inc., 871 F.2d 1023, 1026 (11th Cir. 1989). B. Cause Exists for Relief from the Stay to Allow KVC to File Its Notice of Lis Pendens 16. Section 9:4865(C) of LOWLA provides that a lien created under LOWLA shall also cease to have effect against third persons who are not parties to the action instituted pursuant to the provisions of Subsection B of this Section unless the claimant files a notice of pendency of action in the mortgage records of the parish where the property is located or lawfully seizes the property subject to the privilege within thirty days after institution of the action unless the property subject to the privilege is a drilling or other rig. 17. As provided above, KVC timely filed its Lien Affidavits and Notice of Perfection. Additionally, KVC has timely instituted the Adversary Proceeding to preserve its liens in accordance with LOWLA; however, the automatic stay may be interpreted to prevent 5

6 Case Document 2587 Filed in TXSB on 09/24/13 Page 6 of 7 KVC from filing its Notices of Lis Pendens as required by LOWLA in the relevant parishes. See In re Thornburg, 277 B.R. 719, (Bankr. E.D. Tex. 2002). 18. In order for KVC to preserve its liens in accordance with LOWLA, KVC must file its Notices of Lis Pendens within thirty (30) days from the filing of the Adversary Proceeding. If relief from the stay is denied, KVC s liens on the Subject Properties may be extinguished as to third parties. Accordingly, cause exists under Section 362(d)(1) of the Bankruptcy Code for KVC to file its Notices of Lis Pendens. CONCLUSION WHEREFORE, Ken-Vac Corporation requests this Court to enter an order lifting the automatic stay provided by 11 U.S.C. 362(a) to permit it (i) to file Notices of Lis Pendens in accordance with the Louisiana Oil Well Lien Act, and (ii) granting such other and further relief as may be just and proper. Dated: September 24, 2013 Respectfully submitted, /s/ Kevin M. Maraist Kevin M. Maraist State Bar No ANDERSON, LEHRMAN, BARRE & MARAIST, LLP Gaslight Square 1001 Third Street, Ste. 1 Corpus Christi, Texas (361) FAX: (361) Attorneys-in-Charge for Ken- Vac Corporation 6

7 Case Document 2587 Filed in TXSB on 09/24/13 Page 7 of 7 CERTIFICATION OF ACCURACY Pursuant to Local Rule of Bankruptcy Procedure (i), I certify the accuracy of the foregoing motion. /s/ Kevin M. Maraist Kevin M. Maraist CERTIFICATE OF CONFERENCE On September 20, 2013, I conferred with Charles Kelley, counsel for the Debtor, regarding the relief sought herein. On September 23, 2013, I conferred with Phillip Lamberson, counsel for the DIP Lenders, regarding the relief sought herein. An agreed order on the Motion is anticipated. /s/ Kevin M. Maraist Kevin M. Maraist CERTIFICATE OF SERVICE I certify that a true and correct copy of the above and foregoing was served on the 24th day of September 2013, upon all parties via the Court s electronic case filing system (ECF). /s/ Kevin M. Maraist Kevin M. Maraist N:\Kevin\KEN-VAC\ATP Oil & Gas\motion to file lis pendes by Ken.vac.wpd 7

8 Case Document Filed in TXSB on 09/24/13 Page 1 of 3 UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION IN RE: ATP OIL & GAS CASE NO H1 CORPORATION, (CHAPTER 11) DEBTOR ORDER REGARDING EMERGENCY MOTION OF KEN-VAC CORPORATION FOR RELIEF FROM AUTOMATIC STAY AND/OR TO MODIFY THE AUTOMATIC STAY TO FILE NOTICES OF LIS PENDENS [Relates to Docket No. ] CAME ON TO BE CONSIDERED, this day of, 2013, the Emergency Motion of Ken-Vac Corporation for Relief from Automatic Stay and/or to Modify the Automatic Stay to File Notices of Lis Pendens (Docket No. )(hereinafter referred to as an Emergency Motion ). In resolution of the Emergency Motion, the Movant, the DIP Lenders, the Agent and the Debtor agree, and the Court orders, as follows: 1. The Emergency Motion is granted as provided herein. 2. The automatic stay, to the extent applicable, is modified to allow the Movant to 1 file lis pendens in accordance with the Louisiana Oil Well Lien Act ( LOWLA ), Chapters 53 and 56 of the Texas Property Code or Mississippi Code Ann , et seq. (collectively, the Statutory Lien Laws ). 3. As a condition to granting the relief herein, the Movant agrees that this Court retains authority to require that any filing made pursuant to this order be modified, released or withdrawn. 1 La. R.S. 9:4861 et seq. 1

9 Case Document Filed in TXSB on 09/24/13 Page 2 of 3 4. If Movant has initiated an adversary proceeding to enforce its statutory lien rights pursuant to the Statutory Lien Laws, the Movant may file a stipulation of abatement in such adversary proceeding and abate such adversary proceeding. Movant may terminate such abatement by (i) giving 30 days written notice to each defendant in the adversary proceeding that the abatement is withdrawn, and (ii) filing such notice in the adversary proceeding. Nothing in this order affects the ability of any defendant(s) in such adversary proceeding to seek an abatement or seek to lift the Movant s abatement. Signed:. Honorable Marvin Isgur United States Bankruptcy Judge AGREED TO AS TO FORM AND SUBSTANCE: By: Phillip L. Lamberson BINGHAM McCUTCHEN, LLP Ronald J. Silverman (admitted pro hac vice) Scott K. Seamon (admitted pro hac vice) 399 Park Ave. New York, NY (fax) -and- Amy L. Kyle (admitted pro hac vice) Andrew J. Gallo (admitted pro hac vice) One Federal Street Boston, Massachusetts (fax) 2

10 Case Document Filed in TXSB on 09/24/13 Page 3 of 3 -and- WINSTEAD, PC Phillip L. Lamberson (SBN ) R. Michael Farquhar (SBN ) (admitted pro hac vice) Sean B. Davis (SBN ) S.D. Tex. No Winstead Building 2728 N. Harwood Street Dallas, TX (fax) ATTORNEYS FOR THE DIP LENDERS Kevin M. Maraist State Bar No ANDERSON, LEHRMAN, BARRE & MARAIST, LLP Gaslight Square 1001 Third Street, Ste. 1 Corpus Christi, TX (fax) ATTORNEYS FOR KEN-VAC CORPORATION 3