Case KJC Doc 437 Filed 07/25/13 Page 1 of 8 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE. x : : : : : : : x.

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1 Case KJC Doc 437 Filed 07/25/13 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 8/15/13 at 100 p.m. (Eastern) Obj. Due 8/8/13 at 400 p.m. (Eastern) DEBTOR S MOTION FOR ENTRY OF ORDER APPROVING STIPULATION MODIFYING AUTOMATIC STAY TO ALLOW FOR ADVANCEMENT/PAYMENT OF LOSS UNDER D&O INSURANCE POLICY Exide Technologies ( Exide or the Debtor ) hereby moves (the Motion ) for entry of an order under section 362(d)(1) of title 11 of the United States Code (the Bankruptcy Code ), Rule 4001 of the Federal Rules of Bankruptcy Procedure (the Bankruptcy Rules ) and Rule of the Local Rules of Bankruptcy Practice and Procedure of the United States Bankruptcy Court for the District of Delaware (the Local Rules ), approving the Debtor s entry into a stipulation, attached to the order as Exhibit 1 (the Stipulation ) modifying the automatic stay to allow James R. Bolch, Phillip A. Damaska, R. Paul Hirt, Jr., and Lou Martinez (collectively, the Insured Persons ) to enforce their rights and/or receive proceeds payable under the Executive Protection Portfolio Policy (which provides coverage on a claims made and reported basis for the effective Policy Period of May 5, 2012 to May 5, 2013) (the Insurance Policy ) issued by Federal Insurance Company (the Insurer ). In support of the Motion, the Debtor, by and through its undersigned counsel, respectfully represents 1 The last four digits of the Debtor s taxpayer identification number are The Debtor s corporate headquarters is Deerfield Parkway, Building 200, Milton, Georgia

2 Case KJC Doc 437 Filed 07/25/13 Page 2 of 8 JURISDICTION AND VENUE 1. This Court has jurisdiction to consider this Motion under 28 U.S.C. 157 and Venue of these cases in this district is proper under 28 U.S.C and The legal predicates for the relief requested herein are Bankruptcy Code section 362(d)(1), Bankruptcy Rule 4001 and Local Rule Pursuant to Local Rule (f), 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. Prior to the commencement of the Pending Actions (defined below), the Debtor purchased the Insurance Policy for the benefit of the Insured Persons. 5. The Insurance Policy is styled Executive Protection Portfolio Policy, with a policy number of , issued by Federal Insurance Company. 6. On April 15, 2013, May 3, 2013 and June 4, 2013, some or all of the Insured Persons were named as defendants in putative class-action lawsuits captioned Loritz v. Exide Technologies, et al., Case No. CV , Knopf v. Exide Technologies, et al., Case No. CV , and James Cassella and Sandra Weitsman v. Exide Technologies, et al., Case No. CV (the Pending Actions ). 7. The Pending Actions are currently pending in the United States District Court for the Central District of California. An order consolidating the Pending Actions was entered on July 9,

3 Case KJC Doc 437 Filed 07/25/13 Page 3 of 8 8. In addition to primary coverage available to the directors, officers, and the Debtor, the Insurance Policy provides for direct, dedicated and exclusive coverage in favor of the directors and officers of the Debtor in the form of Side A coverage In accordance with the Insurance Policy, the Debtor, on behalf of itself and the Insured Persons, provided notice of the Pending Actions to the Insurer and sought coverage for the Pending Actions under the Insurance Policy to advance defense costs they have incurred and are continuing to incur in the defense of the Pending Actions, which are not currently stayed. 10. The Insurer has agreed to advance the Insured Persons defense costs incurred in connection with the Pending Actions, subject to its reservation of rights, but requests the entry of a comfort order authorizing it to do so to the extent the automatic stay may apply to any advance of such insurance proceeds. 11. The Insurance Policy also includes a Priority of Payments Endorsement, attached to the Insurance Policy as Endorsement/Rider No. 9, which provides that in the event of a loss arising from a covered claim for which payment is concurrently due under more than one of the insuring clauses, the Insurer must first pay losses on behalf of the Insured Persons (Directors and Officers). 12. The Priority of Payments Endorsement further provides that the bankruptcy or insolvency of Exide shall not relieve the Insurer of any of its obligations to prioritize payment of covered losses in favor of the Insured Persons (Directors and Officers). 2 Side A coverage is the section of coverage under a directors and officers liability insurance policy affording direct coverage of the directors and officers and providing for direct indemnification of the directors and officers for acts for which the company is not legally required to indemnify the directors and officers. 3

4 Case KJC Doc 437 Filed 07/25/13 Page 4 of On July 17, 2013, in connection with and as a condition of the Parties entry into the Stipulation, the plaintiffs in the Pending Actions voluntarily dismissed their claims against Exide without prejudice. As a result, the Debtor is no longer a defendant in the Pending Actions. 14. Contemporaneously with the filing of this Motion, the Debtor and the Insured Persons entered into the Stipulation. RELIEF REQUESTED 15. By this Motion, the Debtor seeks entry of an order approving the Stipulation and modifying the automatic stay, to the extent is applies, for the purpose of allowing the Insurer to make payments to the Insured Persons in accordance with the terms and conditions of the Insurance Policy. BASIS FOR RELIEF 16. Absent an order modifying the automatic stay of Bankruptcy Code section 362, it is unclear whether the Insurer would be permitted to make payments to, or on behalf of, the Insured Persons in accordance with the terms and conditions of the Insurance Policy. The Insured Persons would, in that event, be forced to personally fund or continue to personally fund their defense in connection with the Pending Actions, potentially preventing them from conducting a meaningful defense and causing them immediate and irreparable harm. Accordingly, in order to provide sufficient comfort to the Insurer and the Insured Persons that the Insured Persons will be authorized to enforce their rights and/or receive proceeds payable under the Insurance Policy, the Debtor seeks entry of an order approving the Stipulation and modifying the automatic stay imposed by section 362 of the Bankruptcy Code as more fully set forth in the Stipulation. 4

5 Case KJC Doc 437 Filed 07/25/13 Page 5 of 8 APPLICABLE AUTHORITY 17. Generally, a debtor s liability insurance policy is property of the bankruptcy estate. See In re Louisiana World Exposition, Inc., 832 F.2d 1391, 1399 (Bankr. D. Del. 2004). The determination of whether the proceeds of a liability insurance policy are property of the estate, however, requires a fact-based analysis of the language and scope of the policy at issue. See In re Allied Digital Techs. Corp., 306 B.R. 505, 509 (Bankr. D. Del. 2004) (explaining that the outcome of such a determination usually hinges on who the named insured under the liability insurance policy is). In evaluating other D&O insurance policies, this Court has held that when there is coverage for the directors and officers and the debtor, the proceeds will be property of the estate if depletion of the proceeds would have an adverse effect on the estate to the extent the policy actually protects the estate s other assets from diminution. Allied, 306 B.R. at 512 (finding D&O insurance proceeds were not property of the estate where a debtor had indemnification coverage, but indemnification had not occurred, was hypothetical or speculative); see also Miller v. Mcdonald (In re World Health Alternatives, Inc.), 369 B.R. 805, 811 (Bankr. D. Del. 2007) (proceeds not property of the estate where only directors and officers, and not the debtor, had a right to recovery from the policy s Coverage A). 18. Here, the Insurance Policy provides for direct coverage earmarked for and recoverable solely by the directors and officers of the Debtor. It is not until this Side A coverage dedicated specifically for the directors and officers is exhausted that the Debtor s portion of the policy is subject to depletion. The Debtor believes such an event is unlikely. Thus, to the extent the proceeds of the Insurance Policy are deemed property of the estate, cause exists to modify the automatic stay as requested herein. 19. Bankruptcy Code section 362(d)(1) provides that, [o]n request of a party in interest and after notice and a hearing, the Court shall grant relief from the stay provided under 5

6 Case KJC Doc 437 Filed 07/25/13 Page 6 of 8 subsection (a) of this section, such as by terminating, annulling, modifying or conditioning such stay (1) for cause U.S.C. 362(d). Cause is not defined by section 362(d)(1). See In re The SCO Grp., Inc., 395 B.R. 852, 856 (Bankr. D. Del. 2007). Courts in the Third Circuit have stated that cause is a flexible concept often involving a fact intensive, case-by-case balancing test. Id. (citing Baldino v. Wilson (In re Wilson), 116 F.3d 87, 90 (3d Cir. 1997)). 20. In the context of defense costs to be provided to directors and officers pursuant to a debtor s insurance policy, [i]t is not uncommon for courts to grant stay relief to allow payment of defense costs or settlement costs to directors and officers, especially when there is no evidence that direct coverage of the debtor will be necessary. In re Allied Digital Techs. Corp., 306 B.R. 505, 513 (Bankr. D. Del. 2004) (finding cause to lift the automatic stay, to the extent the insurance proceeds were property of the estate, to authorize an insurer to advance defense costs to directors and officers in accordance with the terms of a D&O policy); see also In re Downey Financial Corp., 428 B.R. 595, 611 (Bankr. D. Del. 2010) (lifting automatic stay to allow insured directors and officers to access policy proceeds even if policy proceeds were property of the estate). 21. Here, cause exists to modify the automatic stay to allow the Insured Persons to enforce their rights and/or receive proceeds payable under the Insurance Policy. In the absence of such an order, the Insured Persons would be forced to personally fund or continue to personally fund their defense in connection with the Pending Actions, potentially preventing them from conducting a meaningful defense and causing them immediate and irreparable harm. Moreover, among the Insured Persons are the Debtor s Chief Financial Officer and current Chief Executive Officer (who is in the process of transitioning from this role), both of whom should be 6

7 Case KJC Doc 437 Filed 07/25/13 Page 7 of 8 permitted to focus on the Debtor s ongoing restructuring without the distraction of financing a defense in connection with the Pending Actions. 22. Finally, the Debtor believes that it will not be prejudiced if the automatic stay is modified as sought herein. To that end, as a condition of its entry into the Stipulation, the Debtor was dismissed from the Pending Actions without prejudice. As a result, the Debtor s estate will have no independent liability in connection with the Pending Actions, and there are no other currently pending suits which would implicate the Insurance Policy. 23. Accordingly, the Debtor submits that cause exists to support modification of the automatic stay as set forth in the Stipulation. NOTICE 24. 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) proposed counsel to the Creditors Committee; and (vii) all parties entitled to notice pursuant to Bankruptcy Rule The Debtor submits that no other or further notice need be provided. Court or any other court. NO PRIOR REQUEST 25. No previous request for the relief sought herein has been made to this 7

8 Case KJC Doc 437 Filed 07/25/13 Page 8 of 8 CONCLUSION WHEREFORE, for the reasons set forth herein, the Debtor respectfully requests that the Court enter an order, substantially in the form attached hereto, granting the relief requested herein and such other and further relief as the Court deems appropriate. Dated Wilmington, Delaware July 25, 2013 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 8

9 Case KJC Doc Filed 07/25/13 Page 1 of 3 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 August 15, 2013 at 100 p.m. (Eastern) Obj. Due August 8, 2013 at 400 p.m. (Eastern) NOTICE OF DEBTOR S MOTION FOR ENTRY OF ORDER APPROVING STIPULATION MODIFYING AUTOMATIC STAY TO ALLOW FOR ADVANCEMENT/PAYMENT OF LOSS UNDER D&O INSURANCE POLICY PLEASE TAKE NOTICE that the debtor and debtor in possession in the abovecaptioned bankruptcy case (the Debtor ) filed today the attached Debtor s Motion for Entry of Order Approving Stipulation Modifying Automatic Stay to Allow for Advancement/Payment of Loss Under D&O Insurance Policy (the Motion ). PLEASE TAKE FURTHER NOTICE that a hearing on the Motion will be held on August 15, 2013 at 100 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 for the District of Delaware (the Bankruptcy Court ), 824 Market Street, Wilmington, Delaware 1 The last four digits of 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 07/25/13 Page 2 of , and served so as to be received by the following parties no later than August 8, 2013 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., 7000 Central Parkway NE, Suite 550, Atlanta, Georgia 30328, Attn Corporate Trust Services - Exide Technologies; (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 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 (ix) proposed 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. 2

11 Case KJC Doc Filed 07/25/13 Page 3 of 3 Only objections made in writing and timely filed and received will be considered by the Bankruptcy Court at the Hearing. 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 July 25, 2013 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 3

12 Case KJC Doc Filed 07/25/13 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) Related Docket No. ORDER APPROVING STIPULATION MODIFYING AUTOMATIC STAY TO ALLOW FOR ADVANCEMENT/PAYMENT OF LOSS UNDER AN INSURANCE POLICY Upon the motion (the Motion ) 2 of the Debtor pursuant to Bankruptcy Code section 362, Bankruptcy Rule 4001, and Local Rule for entry of an order approving the Stipulation Allowing for Advancement/Payment of Loss Under an Insurance Policy (the Stipulation ), attached hereto as Exhibit 1, which consensually modifies the automatic stay in order to allow the Insured Persons to enforce their rights and/or receive proceeds payable under the Insurance Policy; and the Court having determined that the relief requested in the Motion is in the best interests of the Debtor, its estate, its creditors, and other parties in interest; 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 provided; 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 as set forth herein. 1 2 The last four digits of the Debtor s taxpayer identification number are The Debtor s corporate headquarters is Deerfield Parkway, Building 200, Milton, Georgia Capitalized terms not otherwise defined herein shall have the meanings ascribed to such terms in the Motion.

13 Case KJC Doc Filed 07/25/13 Page 2 of 8 2. The Stipulation is hereby approved. 3. The Court shall retain jurisdiction to hear and determine all matters arising from the implementation of this Order. Dated Wilmington, Delaware, 2013 The Honorable Kevin J. Carey UNITED STATES BANKRUPTCY JUDGE 2

14 Case KJC Doc Filed 07/25/13 Page 3 of 8 EXHIBIT 1 Stipulation WILSR01A - MSW 3

15 Case KJC Doc Filed 07/25/13 Page 4 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) STIPULATION ALLOWING FOR ADVANCEMENT/PAYMENT OF LOSS UNDER AN INSURANCE POLICY Exide Technologies ( Exide ), debtor and debtor in possession (collectively, the Debtor ), and James R. Bolch, Phillip A. Damaska, R. Paul Hirt, Jr., and Lou Martinez (collectively, the Insured Persons, and together with the Debtor, the Parties ), respectfully submit this proposed stipulation ( Stipulation ) to allow for advancement/payment of Loss under an Insurance Policy. Based on the facts below, the Parties stipulate and agree, to the extent provided below, that the Insured Persons shall be permitted to enforce their rights and/or receive proceeds payable under the Executive Protection Portfolio Policy (the Insurance Policy ) issued by Federal Insurance Company (the Insurer ). The Insurance Policy provides coverage on a claims made and reported basis for the effective Policy Period of May 5, 2012 to May 5, The last four digits of Debtor s taxpayer identification number are The Debtor s corporate headquarters are located at Deerfield Parkway, Building 200, Milton, Georgia

16 Case KJC Doc Filed 07/25/13 Page 5 of 8 RECITALS WHEREAS, on June 10, 2013 (the Petition Date ), the Debtor filed a voluntary petition for relief under chapter 11 of the United States Bankruptcy Code with the United States Bankruptcy Court for the District of Delaware (the Bankruptcy Court ). Since the Petition Date, the Debtor has operated its businesses as debtor-in-possession pursuant to Bankruptcy Code sections 1107(a) and WHEREAS on April 15, 2013, May 3, 2013 and June 4, 2013, some or all of the Insured Persons were named as defendants in putative class-action lawsuits captioned Loritz v. Exide Technologies, et al., Case No. CV , Knopf v. Exide Technologies, et al., Case No. CV , and James Cassella and Sandra Weitsman v. Exide Technologies, et al., Case No. CV (the Pending Actions ). The Pending Actions are currently pending in the United States District Court for the Central District of California. An order consolidating the Pending Actions was entered on July 9, On July 17, 2013, the plaintiffs voluntarily dismissed their claims without prejudice against Exide Technologies in the Pending Actions. At this time, the Debtor is not a defendant in the Pending Actions. WHEREAS, prior to the commencement of the Pending Actions, the Debtor purchased the Insurance Policy for the benefit of the Insured Persons. WHEREAS, the Insurance Policy is styled Executive Protection Portfolio Policy, with a policy number of , issued by Federal Insurance Company. WHEREAS, in accordance with the Insurance Policy, the Debtor, on behalf of itself and the Insured Persons, provided notice of the Pending Actions to the Insurer and sought coverage for the Pending Actions under the Insurance Policy to advance defense costs they have incurred and are continuing to incur in the defense of the Pending Actions. 2

17 Case KJC Doc Filed 07/25/13 Page 6 of 8 WHEREAS, the Insurer has agreed to advance the Insured Persons defense costs incurred in connection with the Pending Actions, subject to its reservation of rights. WHEREAS, the Insurance Policy includes a Priority of Payments Endorsement, attached to the Insurance Policy as Endorsement/Rider No. 9, which provides that in the event of a loss arising from a covered claim for which payment is concurrently due under more than one of the insuring clauses, the Insurer must first pay losses on behalf of the Insured Persons (Directors and Officers). WHEREAS, the Priority of Payments Endorsement provides that the bankruptcy or insolvency of Exide shall not relieve the Insurer of any of its obligations to prioritize payment of covered losses in favor of the Insured Persons (Directors and Officers). WHEREAS, to the extent the automatic stay imposed under section 362(a) of the Bankruptcy Code applies, the Parties enter into this Stipulation to lift the Automatic Stay to permit the Insurer to make payments to the Insured Persons in accordance with the terms and conditions of the Insurance Policy. NOW THEREFORE, based on the foregoing, it is hereby Stipulated and Agreed to by and between the Parties, subject to the Bankruptcy Court s approval, as follows STIPULATION 1. To the extent applicable, the automatic stay imposed under section 362(a) of the Bankruptcy Code is lifted and modified to permit the Insurer to make payments to, or on behalf of, the Insured Persons in accordance with the terms and conditions of the Insurance Policy (the Approved Payments ). 3

18 Case KJC Doc Filed 07/25/13 Page 7 of 8 2. The Approved Payments shall reduce the Limits of Liability of the Policy and shall not be considered a violation of the automatic stay, nor shall they be considered property of the Debtor s estate. 3. Nothing in this Stipulation shall modify the terms and conditions of the Insurance Policy or the Insurer s reservation of rights. 4. Nothing in this Stipulation shall preclude any Insured Person from, at any time, by motion or further stipulation, seeking further access to other insurance policies nor shall the Debtor be precluded from opposing such request. 5. This Stipulation, and any disputes that may arise out of this Stipulation, shall be subject to the jurisdiction of the Bankruptcy Court. 6. This Stipulation shall be interpreted in accordance with the laws of Delaware, without regard to any conflicts of laws principles. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.] 4

19 Case KJC Doc Filed 07/25/13 Page 8 of 8 7. This Stipulation may be executed in any number of counterparts and by facsimile or electronic transmission, each of which shall be an original, with the same effect as if the signatures hereto were upon the same document. By /s/ Anthony W. Clark Anthony W. Clark Kristhy M. Peguero SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP One Rodney Square P.O. Box 636 Wilmington, Delaware Telephone (302) Fax (302) kristhy.peguero@skadden.com Counsel for Debtor and Debtor in Possession By /s/ David H. Kistenbroker David H. Kistenbroker Carl E. Volz DECHERT LLP 77 West Wacker Drive Suite 3200 Chicago, Illinois Telephone (312) Fax (312) david.kistenbroker@dechert.com carl.volz@dechert.com Counsel for James R. Bolch, Phillip A. Damaska, R. Paul Hirt, Jr., and Lou Martinez WILSR01A - MSW 5