Case KJC Doc 1311 Filed 01/30/14 Page 1 of 8 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE.

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1 Case KJC Doc 1311 Filed 01/30/14 Page 1 of 8 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE In re EXIDE TECHNOLOGIES, Debtor x x Chapter 11 Case No (KJC) Hrg. Date February 20, 2014 at 200 p.m. (Eastern) Obj. Due February 13, 2014 at 400 p.m. (Eastern) DEBTOR S SECOND MOTION FOR ENTRY OF AN ORDER UNDER BANKRUPTCY CODE SECTION 105(a) AND BANKRUPTCY RULES 9006(b) AND 9027 EXTENDING THE TIME PERIOD WITHIN WHICH THE DEBTOR MAY REMOVE ACTIONS PURSUANT TO 28 U.S.C Exide Technologies ( Exide or the Debtor ) hereby moves (the Motion ) for entry of an order under section 105(a) of title 11 of the United States Code (the Bankruptcy Code ) and Rules 9006(b) and 9027 of the Federal Rules of Bankruptcy Procedure (the Bankruptcy Rules ) extending the time period within which the Debtor may remove actions pursuant to section 1452 of title 28 of the United States Code. In support of the Motion, the Debtor, by and through its undersigned counsel, respectfully represents JURISDICTION AND VENUE 1. This Court has jurisdiction to consider this Motion under 28 U.S.C. 157 and This is a core proceeding under 28 U.S.C. 157(b). Venue of the case and this Motion in this District is proper under 28 U.S.C and The last four digits of the Debtor s taxpayer identification number are The Debtor s corporate headquarters are located at Deerfield Parkway, Building 200, Milton, Georgia

2 Case KJC Doc 1311 Filed 01/30/14 Page 2 of 8 2. The statutory predicates for the relief requested herein are Bankruptcy Code section 105, Bankruptcy Rules 9006 and 9027, and section 1452 of title 28 of the United States Code. 3. Pursuant to Rule (f) of the Local Rules of Bankruptcy Practice and Procedure of the United States Bankruptcy Court for the District of Delaware, the Debtor consents to the entry of a final judgment or order with respect to the Motion if it is determined that this Court would lack Article III jurisdiction to enter such final order or judgment absent the consent of the parties. BACKGROUND 4. On June 10, 2013 (the Petition Date ), the Debtor commenced a case by filing a petition for relief under chapter 11 of the Bankruptcy Code (the Chapter 11 Case ). 5. The Debtor continues to operate its business and manage its property as debtor and debtor in possession pursuant to Bankruptcy Code sections 1107(a) and On June 18, 2013, the United States Trustee for the District of Delaware (the U.S. Trustee ) appointed an Official Committee of Unsecured Creditors (the Creditors Committee ) in the Chapter 11 Case pursuant to Bankruptcy Code section The Debtor, Exide, which together with its direct and indirect subsidiaries (collectively, the Company ), has operations in more than 80 countries, is a global leader in stored electrical energy solutions and one of the world s largest producers and recyclers of leadacid batteries. 7. The Company s four global business groups Transportation Americas, Transportation Europe and Rest of World ( ROW ), Industrial Energy Americas, and Industrial 2

3 Case KJC Doc 1311 Filed 01/30/14 Page 3 of 8 Energy Europe and ROW provide a comprehensive range of stored electrical energy products and services for industrial and transportation applications. 8. By an order entered on August 27, 2013 (Docket No. 609) (the First Removal Order ), this Court previously extended the period within which Debtor may file notices of removal pursuant to Bankruptcy Rule 9027(a)(2) (the Removal Period ) to the later of (a) March 7, 2014 for actions that have not been stayed pursuant to Bankruptcy Code section 362 or (b) 30 days after entry of an order terminating the automatic stay with respect to any particular action sought to be removed. 9. As noted in the Debtor s initial removal motion, as of the commencement of the Chapter 11 Case, the Debtor was a party to approximately one-hundred (100) judicial and administrative proceedings in various courts and administrative agencies. Additionally, on September 13, 2013, this Court entered the Order (I) Establishing Deadlines For (A) Submitting Proofs Of Claim And (B) Requests For Payment Under Bankruptcy Code Section 503(b)(9), (II) Approving The Form And Manner For Submitting Such Proofs Of Claim And Requests For Payment, And (III) Approving Notice Thereof (Docket No. 696) (the Bar Date Order ), setting October 31, 2013 at 500 p.m. (Eastern) as the deadline to file proofs of claim (the General Bar Date ). The General Bar Date applied to any person, other than governmental units, holding a claim (other than a personal injury claim related to the Debtor s Vernon facility) against the Debtor owing as of the Petition Date, including claims under Bankruptcy Code section 503(b)(9), or any person with an alleged claim or expense to have allegedly arisen prior to the Petition Date. Additionally, any governmental unit seeking to file a claim against the Debtor was required to do so by no later than December 9, 2013 at 500 p.m. (Eastern) (the Government Bar Date ). Finally, any person seeking to file a personal injury claim related to the Debtor s Vernon facility 3

4 Case KJC Doc 1311 Filed 01/30/14 Page 4 of 8 was required to do so no later than January 31, 2014 at 500 p.m. (Eastern) (the Vernon Bar Date ) Since the passing of the General and Government Bar Dates, the Debtor has preliminarily identified in excess of approximately 500 claims of a commercial or tort litigation variety, and with the Vernon Bar Date set to expire tomorrow, the Debtor anticipates additional potential litigation actions to be filed against the estate (collectively with any other claims, actions, lawsuits, proceedings for or against the Debtor, the Actions ). 3 While the Debtor believes that the automatic stay would apply to the vast majority of the Actions underlying these litigation claims such that the Removal Period would expire 30 days after a lifting of the automatic stay the Debtor seeks a further extension of the Removal Period to the extent the automatic stay may not be applicable. 11. The Debtor thus seeks a further extension of the Removal Period to coincide with the date on which a plan of reorganization is confirmed in this case a milestone that is set for September 22, 2014 pursuant to the Debtor s debtor in possession financing facility. 2 See Supplemental Order (I) Extending The Claims Bar Date Solely With Respect To Personal Injury Claims Relating To The Debtor s Vernon California Facility, (II) Approving The Form And Manner For Submitting Such Proofs Of Claim, And (III) Approving Notice Thereof, entered Oct. 24, 2013 (Docket No. 696). 3 Such Actions would also include those in which the Debtor is the plaintiff. 4

5 Case KJC Doc 1311 Filed 01/30/14 Page 5 of 8 RELIEF REQUESTED 12. By the Motion, the Debtor requests entry of an order pursuant to Bankruptcy Rules 9006(b) and 9027 further extending the Removal Period through and including the date of confirmation of a plan of reorganization The Debtor further requests that this Court grant the extension requested herein without prejudice to any position the Debtor may take regarding whether the automatic stay applies to stay any action. BASIS FOR RELIEF 14. Section 1452 of title 28 of the United States Code governs the removal of pending civil actions. Section 1452(a) states 28 U.S.C. 1452(a). A party may remove any claim or cause of action in a civil action other than a proceeding before the United States Tax Court or a civil action by a governmental unit to enforce such governmental unit s police or regulatory power, to the district court for the district where such civil action is pending, if such district court has jurisdiction of such claim or cause of action under section 1334 of this title. 15. Bankruptcy Rule 9027 further provides in pertinent part that for claims or causes of action pending when a bankruptcy case is commenced, a notice of removal may be filed only within the longest of (A) 90 days after the order for relief in the case under the [Bankruptcy] Code, (B) 30 days after entry of an order terminating a stay, if the claim or cause of action in a civil action has been stayed under 362 of the [Bankruptcy] Code.... Fed. R. Bankr. P. 9027(a)(2). In cases not stayed e.g., in which a stay exception applies or in which the Debtor is a plaintiff the current deadline to file notice of removal is March 7, As noted above, to the extent Bankruptcy Code section 362(a) automatically stays an action, the requested relief (i.e., the extension of the Removal Period) is not necessary. However, with respect to the potential actions that are not subject to the automatic stay, an extension of the Removal Period would be applicable. 5

6 Case KJC Doc 1311 Filed 01/30/14 Page 6 of Moreover, Bankruptcy Rule 9006 stipulates that when an act is required or allowed to be done at or within a specified period by these rules... the court for cause shown may at any time in its discretion... order the period enlarged if the request is made before the expiration of the period originally prescribed.... Fed. R. Bankr. P. 9006(b)(1). 17. Accordingly, it is well settled that this Court is authorized to expand the removal period as requested herein. See Caperton v. A.T. Massey Coal Co, Inc., 251 B.R. 322, 325 (S.D. W. Va. 2000) (citations omitted) ( Considered in pari materia with Rule 9027, Rule 9006 provides authority to enlarge the thirty-day time period for removing actions arising under the Bankruptcy Code. ); In re Pacor, Inc., 743 F.2d 984, 995 n.17 (3d Cir. 1984) ( Under the new Rules of Bankruptcy Procedure, it is clear the court may grant such an extension. ), overruled on other grounds by Things Remembered, Inc. v. Petrarca, 516 U.S. 124 (1995). Such requests by debtors for extensions of the removal period until plan confirmation have been granted routinely by courts. See, e.g., In re Nortel Networks Inc., Case No (KG) (Bankr. D. Del. May 7, 2009) (extending removal deadline until plan confirmation); In re the Great Atlantic & Pacific Tea Company, Inc., Case No (RDD) (Bankr. S.D.N.Y July 8, 2011) (same); In re Uno Restaurant Holdings Corp., Case No (Bankr. S.D.N.Y. April 14, 2010) (same); In re Gen. Growth Props., Inc., No (S.D.N.Y. June 17, 2009) (same). 18. The proposed extension of the Removal Period is a customary one and reasonable and appropriate under the circumstances here. The Debtor is still in the process of evaluating its claims for and against the estate (indeed, the Vernon Bar Date is tomorrow) and working toward the March 10, 2014 debtor in possession financing deadline to deliver its business plan on which such claims may have an impact. Moreover, if the relief requested herein 6

7 Case KJC Doc 1311 Filed 01/30/14 Page 7 of 8 is granted, the Debtor will be in a better position to determine if removal is appropriate, without expending significant resources on a premature assessment. In addition, as the Debtor moves toward a chapter 11 plan of reorganization, it intends to address the treatment of any Actions in connection with a plan. 19. Finally, the Debtor submits that nothing herein will prejudice any party to a proceeding that the Debtor seeks to remove from pursuing a remand pursuant to 28 U.S.C. 1452(b). If the Debtor seeks to remove any Actions pursuant to Bankruptcy Rule 9027, any party to the litigation may seek to remand the Actions pursuant to 28 U.S.C. 1452(b), which states that [t]he court to which such claim or cause of action is removed may remand such claim or cause of action on any equitable ground. 28 U.S.C. 1452(b). 5 Thus, the relief requested herein does not impair any party s rights under section 1452 of title 28 of the United States Code. NOTICE 20. Notice of the Motion will be given to (i) the Office of the United States Trustee; (ii) counsel to the agent under the debtor in possession financing; (iii) counsel to the agent for the Debtor s prepetition secured lenders; (iv) the indenture trustee for each of the Debtor s secured and unsecured outstanding bond issuances; (v) counsel to the unofficial committee of senior secured noteholders; (vi) counsel to the Creditors Committee; (vii) currently known litigation parties, and (viii) all parties entitled to notice pursuant to Bankruptcy Rule The Debtor reserves the right to contest any remand. 7

8 Case KJC Doc 1311 Filed 01/30/14 Page 8 of 8 CONCLUSION WHEREFORE, the Debtor respectfully requests that the Court enter an order, substantially in the form annexed hereto, granting the relief requested in the Motion and such other and further relief as is just and proper. Dated Wilmington, Delaware January 30, 2014 SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP /s/ Kristhy M. Peguero Anthony W. Clark (I.D. No. 2051) Kristhy M. Peguero (I.D. No. 4903) One Rodney Square P.O. Box 636 Wilmington, Delaware Telephone (302) Fax (302) and Kenneth S. Ziman J. Eric Ivester Four Times Square New York, New York Telephone (212) Fax (212) and James J Mazza, Jr. 155 N. Wacker Dr. Chicago, Illinois Telephone (312) Fax (312) Counsel for Debtor and Debtor in Possession 8

9 Case KJC Doc Filed 01/30/14 Page 1 of 4 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE In re EXIDE TECHNOLOGIES, Debtor x x Chapter 11 Case No (KJC) Hrg. Date Feb. 20, 2014 at 200 p.m. (Eastern) Obj. Due Feb. 13, 2014 at 400 p.m. (Eastern) NOTICE OF DEBTOR S SECOND MOTION FOR ENTRY OF AN ORDER UNDER BANKRUPTCY RULE 9006(B) EXTENDING THE TIME PERIOD WITHIN WHICH THE DEBTOR MAY REMOVE ACTIONS PURSUANT TO 28 U.S.C AND BANKRUPTCY RULE 9027 PLEASE TAKE NOTICE that the debtor and debtor in possession in the abovecaptioned bankruptcy case (the Debtor ) filed today the attached Debtor s Second Motion For Entry Of An Order Under Bankruptcy Rule 9006(b) Extending The Time Period Within Which The Debtor May Remove Actions Pursuant To 28 U.S.C And Bankruptcy Rule 9027 (the Motion ). PLEASE TAKE FURTHER NOTICE that a hearing on the Motion will be held on February 20, 2014 at 200 p.m. (Eastern) before the Honorable Kevin J. Carey, United States Bankruptcy Judge for the District of Delaware, in the United States Bankruptcy Court for the District of Delaware, 5th Floor, Courtroom 5, 824 North Market Street, Wilmington, Delaware ( Hearing ). PLEASE TAKE FURTHER NOTICE that objections, if any, to the Motion or the relief requested therein must be made in writing, filed with the United States Bankruptcy Court 1 The last four digits of the Debtor s taxpayer identification number are The Debtor s corporate headquarters are located at Deerfield Parkway, Building 200, Milton, Georgia

10 Case KJC Doc Filed 01/30/14 Page 2 of 4 for the District of Delaware (the Bankruptcy Court ), 824 Market Street, Wilmington, Delaware 19801, and served so as to be received by the following parties no later than February 13, 2014 at 400 p.m. (Eastern) (i) the Debtor, Exide Technologies, Deerfield Parkway, Building 200, Milton, Georgia 30004, Attn Phillip A. Damaska; (ii) counsel to the Debtor, Skadden, Arps, Slate, Meagher & Flom LLP, Four Times Square, New York, New York 10036, Attn Kenneth S. Ziman, Esq. and J. Eric Ivester, Esq. and One Rodney Square, P.O. Box 636, Wilmington, Delaware , Attn Anthony W. Clark, Esq. and 155 N. Wacker Drive, Chicago, Illinois , Attn James J. Mazza, Jr.; (iii) counsel to the agent under the debtor in possession financing, Davis, Polk & Wardwell LLP, 450 Lexington Avenue, New York, New York 10017, Attn Damian S. Schaible, Esq. and Richards, Layton & Finger, P.A., One Rodney Square, 920 North King Street, Wilmington, Delaware 19801, Attn Mark D. Collins, Esq.; (iv) counsel to the agent for the Debtor s prepetition secured lenders, Greenberg Traurig, LLP, 3333 Piedmont Road NE, Suite 2500, Atlanta, Georgia 30305, Attn David B. Kurzweil, Esq. and 1007 N. Orange St., Suite 1200, Wilmington, Delaware 19801, Attn Dennis A. Meloro, Esq.; (v) the indenture trustee for the Debtor s secured bond issuances, Wells Fargo Bank, N.A., 150 East 42 nd Street, 40 th Floor, New York, New York 10017, Attn James R. Lewis and Foley & Lardner LLP, 321 North Clark Street, Suite 2800, Chicago, Illinois 60654, Attn Mark F. Hebbeln, Esq.; (vi) the indenture trustee for the Debtor s unsecured bond issuances, U.S. Bank National Association, Global Corporate Trust Services, 60 Livingston Ave., EP-MN-WS1D, St. Paul, Minnesota 55107, Attn Cindy Woodward and Arent Fox LLP, 1675 Broadway, New York, New York 10019, Attn Andrew Silfen, Esq.; (vii) counsel to the unofficial committee of senior secured noteholders, Paul, Weiss, Rifkind, Wharton & Garrison LLP, 1285 Avenue of the Americas, New York, New York 10019, Attn Alice Belisle Eaton, Esq. and Young Conaway Stargatt & Taylor, LLP, Rodney Square, 1000 King Street, Wilmington, Delaware 19801, Attn Pauline K. Morgan, Esq.; (viii) the Office of the United States Trustee for the District of Delaware, Office of the United States Trustee, Room 2207, Lockbox 35, 844 North King Street, Wilmington, Delaware 19801, Attn Mark S. Kenney, Esq.; and 2

11 Case KJC Doc Filed 01/30/14 Page 3 of 4 (ix) counsel to the official committee of unsecured creditors, Lowenstein Sandler LLP, 65 Livingston Avenue, Roseland, New Jersey 07068, Attn Kenneth A. Rosen, Esq. and Sharon L. Levine, Esq. and 1251 Avenue of the Americas, New York, New York 10020, Attn Gerald C. Bender, Esq. and Morris, Nichols, Arsht & Tunnell LLP, 1201 North Market Street, Suite 1600, Wilmington, Delaware 19801, Attn Robert J. Dehney, Esq. Only objections made in writing and timely filed and received will be considered by the Bankruptcy Court at the Hearing. [Remainder of page intentionally left blank.] 3

12 Case KJC Doc Filed 01/30/14 Page 4 of 4 PLEASE TAKE FURTHER NOTICE THAT IF NO OBJECTIONS TO THE MOTION ARE TIMELY FILED AND RECEIVED IN ACCORDANCE WITH THE ABOVE PROCEDURES, THE RELIEF REQUESTED IN THE MOTION MAY BE GRANTED WITHOUT FURTHER NOTICE OR HEARING. Dated Wilmington, Delaware January 30, 2014 SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP /s/ Kristhy M. Peguero Anthony W. Clark (I.D. No. 2051) Kristhy M. Peguero (I.D. No. 4903) One Rodney Square P.O. Box 636 Wilmington, Delaware Telephone (302) Fax (302) and - Kenneth S. Ziman J. Eric Ivester Four Times Square New York, New York Telephone (212) Fax (212) and - James J. Mazza, Jr. 155 N. Wacker Dr. Chicago, Illinois Telephone (312) Fax (312) Counsel for Debtor and Debtor in Possession WILSR01A - MSW 4

13 Case KJC Doc Filed 01/30/14 Page 1 of 2 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE In re EXIDE TECHNOLOGIES, Debtor x x Chapter 11 Case No (KJC) Related Docket No. ORDER PURSUANT TO BANKRUPTCY CODE SECTION 105(a) AND BANKRUPTCY RULES 9006(b) AND 9027 EXTENDING THE TIME PERIOD WITHIN WHICH THE DEBTOR MAY REMOVE ACTIONS PURSUANT TO 28 U.S.C Upon the motion (the Motion ) 2 of Exide Technologies ( Exide or the Debtor ) for an order, pursuant to Bankruptcy Code section 105(a) and Rules 9006(b) and 9027 of the Bankruptcy Rules extending the time period within which the Debtor may remove pending proceedings pursuant to section 1452 of title 28 of the United States Code; and due and sufficient notice of the Motion having been given under the particular circumstances and it appearing that no other or further notice need be given; and it appearing that the relief requested by the Motion is in the best interests of the Debtor, its estate, its creditors and other parties in interest; and after due deliberation thereon; and good and sufficient cause appearing therefor, it is hereby ORDERED, ADJUDGED, AND DECREED that 1. The Motion is GRANTED. 1 The last four digits of the Debtor s taxpayer identification number are The Debtor s corporate headquarters are located at Deerfield Parkway, Building 200, Milton, Georgia Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Motion.

14 Case KJC Doc Filed 01/30/14 Page 2 of 2 2. The period during which the Debtor may file a notice of removal with respect to the Actions is extended until the later of (a) the date of confirmation of a chapter 11 plan of reorganization for Actions that have not been stayed pursuant to Bankruptcy Code section 362(a), or (b) 30 days after entry of an order terminating the automatic stay with respect to any particular action sought to be removed. 3. The extension granted by this Order is without prejudice to the Debtor s right to seek further extensions of time to remove the Actions upon application to this Court. 4. Nothing in this Order shall be construed as modifying or terminating any stay applicable to any act, action, or proceeding pursuant to section 362 of the Bankruptcy Code, or any order entered by this Court pursuant to section 105 of the Bankruptcy Code. 5. Notwithstanding anything to the contrary in this Order, and in conformity with 28 U.S.C. 1452(a), nothing in this Order shall allow the Debtor to remove a civil action by a governmental unit to enforce such governmental unit s police or regulatory power. 6. This Court shall retain jurisdiction to hear and determine all matters arising from or related to the interpretation, implementation, or enforcement of the Order. Dated Wilmington, Delaware, 2014 The Honorable Kevin J. Carey UNITED STATES BANKRUPTCY JUDGE 2