IN THE UNITED STATES BANKRUPTCY COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION In re: COLLINS & AIKMAN CORPORATION,

et al.1 Debtors. ) ) ) ) ) ) ) ) ) ) Chapter 11 Case No. 05-55927 (SWR) (Jointly Administered) (Tax Identification #13-3489233) Honorable Steven W. Rhodes

DEBTORS RESPONSE TO WILHELM KARMANN GMBHS MOTION FOR RELIEF FROM STAY The above-captioned debtors (collectively, the Debtors) hereby submit this response (this Response) in opposition to Wilhelm Karmann GMBHs (Karmanns) motion for relief from stay (the Stay Motion), filed on December 2, 2005. In support of this Response, the Debtors respectfully state as follows:

The Debtors in the jointly administered cases include: Collins & Aikman Corporation; Amco Convertible Fabrics, Inc., Case No. 05-55949; Becker Group, LLC (d/b/a/ Collins & Aikman Premier Mold), Case No. 05-55977; Brut Plastics, Inc., Case No. 05-55957; Collins & Aikman (Gibraltar) Limited, Case No. 05-55989; Collins & Aikman Accessory Mats, Inc. (f/k/a the Akro Corporation), Case No. 05-55952; Collins & Aikman Asset Services, Inc., Case No. 05-55959; Collins & Aikman Automotive (Argentina), Inc. (f/k/a Textron Automotive (Argentina), Inc.), Case No. 05-55965; Collins & Aikman Automotive (Asia), Inc. (f/k/a Textron Automotive (Asia), Inc.), Case No. 0555991; Collins & Aikman Automotive Exteriors, Inc. (f/k/a Textron Automotive Exteriors, Inc.), Case No. 05-55958; Collins & Aikman Automotive Interiors, Inc. (f/k/a Textron Automotive Interiors, Inc.), Case No. 05-55956; Collins & Aikman Automotive International, Inc., Case No. 05-55980; Collins & Aikman Automotive International Services, Inc. (f/k/a Textron Automotive International Services, Inc.), Case No. 05-55985; Collins & Aikman Automotive Mats, LLC, Case No. 05-55969; Collins & Aikman Automotive Overseas Investment, Inc. (f/k/a Textron Automotive Overseas Investment, Inc.), Case No. 05-55978; Collins & Aikman Automotive Services, LLC, Case No. 05-55981; Collins & Aikman Canada Domestic Holding Company, Case No. 05-55930; Collins & Aikman Carpet & Acoustics (MI), Inc., Case No. 05-55982; Collins & Aikman Carpet & Acoustics (TN), Inc., Case No. 05-55984; Collins & Aikman Development Company, Case No. 05-55943; Collins & Aikman Europe, Inc., Case No. 05-55971; Collins & Aikman Fabrics, Inc. (d/b/a Joan Automotive Industries, Inc.), Case No. 05-55963; Collins & Aikman Intellimold, Inc. (d/b/a M&C Advanced Processes, Inc.), Case No. 05-55976; Collins & Aikman Interiors, Inc., Case No. 05-55970; Collins & Aikman International Corporation, Case No. 05-55951; Collins & Aikman Plastics, Inc., Case No. 05-55960; Collins & Aikman Products Co., Case No. 05-55932; Collins & Aikman Properties, Inc., Case No. 0555964; Comet Acoustics, Inc., Case No. 05-55972; CW Management Corporation, Case No. 05-55979; Dura Convertible Systems, Inc., Case No. 05-55942; Gamble Development Company, Case No. 05-55974; JPS Automotive, Inc. (d/b/a PACJ, Inc.), Case No. 05-55935; New Baltimore Holdings, LLC, Case No. 05-55992; Owosso Thermal Forming, LLC, Case No. 05-55946; Southwest Laminates, Inc. (d/b/a Southwest Fabric Laminators Inc.), Case No. 05-55948; Wickes Asset Management, Inc., Case No. 05-55962; and Wickes Manufacturing Company, Case No. 05-55968.

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Preliminary Statement Karmann has the heavy burden of showing that cause exists, pursuant to 11 U.S.C. 362(d) of the Bankruptcy Code, to lift the automatic stay with respect to its proposed patent infringement action. Here, for the reasons stated below, Karmann has failed to meet this heavy burden. In addition, policy reasons dictate that the automatic stay remain intact to provide the proper breathing spell to the Debtors. Accordingly, the Debtors respectfully request that the Court deny Karmanns Stay Motion in its entirety. Relevant Facts 1. On May 17, 2005 (the Petition Date), the Debtors filed their voluntary petitions

for relief under chapter 11 of the Bankruptcy Code. The Debtors are operating their businesses and managing their properties as debtors in possession pursuant to sections 1107(a) and 1108 of the Bankruptcy Code. No trustee or examiner has been appointed in these cases. On the Petition Date, the Court entered an order jointly administering these cases pursuant to Bankruptcy Rule 1015(b). 2. One of the Debtors in these cases is Dura Convertible Systems, Inc. (Dura), the

leading, vertically integrated full-service supplier of soft-top convertible roof systems for automobiles in North America. Dura currently sells 100% of its products in North America to DaimlerChrysler, General Motors, and Ford Motor Company, with the majority of its sales in 2005 attributable to the Ford Mustang program. 3. As part of the reorganization process, Debtors determined that a sale of the Dura

business may substantially benefit the ongoing business and financial operations of the estates. Within recent months, Dura issued an Information Memorandum providing confidential evaluation material to prospective buyers. Before receiving the Information Memorandum, all prospective buyers were required to sign a non-disclosure agreement, agreeing to keep all 2
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disclosed information confidential. Karmann submitted its signed non-disclosure agreement with Dura on November 16, 2005 and received Duras confidential Information Memorandum shortly thereafter. 4. A few weeks later, on December 2, 2005, Karmann filed the Stay Motion, seeking

relief from the automatic stay to pursue a patent infringement action in the United States District Court for the Eastern District of Michigan against Dura for alleged pre- and post-petition infringement. Argument I. Karmann Has Failed to Demonstrate that Cause Exists to Modify the Stay. A. 5. Applicable Legal Standard The filing of a bankruptcy petition operates as an automatic stay that stays all pre-

petition actions by entities against the Debtors. 11 U.S.C. 362(a). The automatic stay also applies to actions based on the Debtors post-petition conduct, when the alleged conduct at issue began pre-petition. See In re Mahurkar Double Lumen Hemodialysis Catheter Patent Litigation, 140 B.R. 969, 976 (N.D. Ill 1992) (holding that automatic stay barred both pre- and post-petition claims against debtor); see also Advanced Computer Services of Michigan, Inc. v. MAI Systems Corp., 161 B.R. 771, 775 (E.D. Va. 1993) (holding that post-petition conduct was subject to automatic stay where complaint could have been commenced during the pre-petition period). In addition, this Court has the power to stay an action against the Debtors alleged post-petition conduct if required for purposes of equity. See 28 U.S.C. 959(a) (noting that post-petition actions shall be subject to the general equity power of such court so far as the same may be necessary to the ends of justice . . . .); see also 11 U.S.C. 105(a) (noting that court may issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of this title). 3
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6.

The decision whether to lift the stay is decided by courts on a case-by-case basis.

See In re Laguna Assoc. Ltd. Pship, 30 F.3d 734, 737 (6th Cir. 1994) (Because the Code provides no definition of what constitutes cause under either Section 362(d) or Section 1112(b), courts must determine whether discretionary relief is appropriate on a case-by-case basis.); see also In re Moralez, 128 B.R. 526, 527 (Bankr. E.D. Mich. 1991) (Rhodes, J.) (The decision whether to lift the stay should be made on a case by case basis.). 7. The party seeking relief from the automatic stay bears the initial burden of

proving cause to lift the stay under section 362(d)(1) of the Bankruptcy Code. As the courts in this circuit have held: The Bankruptcy Code expressly addresses the issue of burden of proof on a motion to lift the automatic stay. Pursuant to section 362(d)(1), the party requesting relief has the initial burden of going forward and, thus, is required to make a showing of cause in support of lifting the stay. In re Laguna Associates Ltd. Pship, No. 92-75390, 1993 WL 730746, *5 (E.D. Mich., Apr. 12, 1993) (citing Sonnax Indus., Inc. v. Iri Component Prods. Corp., 907 F.2d 1280, 1285 (2d Cir. 1990) (noting that [i]f the movant fails to make an initial showing of cause, however, the court should deny relief without requiring any showing from the debtor that it is entitled to continued protection.)); see also Matter of Laguna Associates Ltd. Pship, 147 B.R. 709, 714 (Bankr. E.D. Mich. 1992) (noting that Section 362(d)(1) in effect requires an initial showing of cause by the movant, and Section 362(g) places the burden of proof on the debtor for all issues other than the debtor's equity in property.) (internal citations omitted); In re Elmira Litho, Inc., 174 B.R. 892, 902 (Bankr. S.D.N.Y. 1994) (a creditor seeking relief from the automatic stay may not ignore the requirement that as part of the prima facie case, the movant must demonstrate a factual and legal right to the relief that it seeks); In re Planned Systems, Inc., 78 B.R. 852, 860

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(Bankr. S.D. Ohio 1987) (It would be both illogical and inefficient to require the debtor to demonstrate the nonexistence of every conceivable cause for relief under section 362(d)(1).). 8. In determining whether to lift a stay for cause, this Court has previously held

that the Court should: (1) consider the effect of lifting the stay on the administration of the bankruptcy estate; (2) balance the harm to the parties; and (3) consider whether the tribunal where the creditor proposes to litigate has special expertise in dealing with the issues. In re Moralez, 128 B.R. 526, 527-28 (Bankr. E.D. Mich. 1991) (Rhodes, J.). In addition, this Court may exercise its power to stay an action against the Debtors alleged post-petition conduct, if the Court determines that the action would embarrass, burden, delay or otherwise impede the reorganization proceedings. See In re Investors Funding Corp. of NY, 547 F.3d 13, 16 (2d Cir. 1976); see also In re Television Studio School of New York, 77 B.R. 411, 412 (Bankr. S.D.N.Y. 1987) (staying post-petition copyright infringement action against debtor, pursuant to 28 U.S.C. 959(a), where action would result in prejudice, difficulty and embarrassment to Debtor); In re Revere Copper and Brass, Inc. v. Revere Copper Products, Inc., 32 B.R. 725, 728 (S.D.N.Y. 1983) (affirming bankruptcy court order staying post-petition proceedings against debtor because action would embarrass, burden, delay or otherwise impede the reorganization proceedings). 9. Here, Karmann has failed to meet its burden of proving that cause exists to lift

the stay because it has not and cannot demonstrate that: (1) the lifting of the stay will not affect the administration of these estates; (2) the balance of harms weighs in Karmanns favor; and (3) the court where Karmann proposes to litigate has special expertise in dealing with the issues in Karmanns patent infringement action. In addition, policy reasons dictate that the automatic stay remain intact to provide the proper breathing spell to the Debtors. Accordingly, the Debtors respectfully request that the Court deny the Stay Motion in its entirety.

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B.

Karmann Has Failed to Demonstrate That Allowing the Patent Infringement Action To Proceed Will Not Affect the Administration of The Debtors Bankruptcy Estates. As this Court noted in In re Moralez, 128 B.R. 526, 528 (E.D. Mich. 1991)

10.

(Rhodes, J.), the Bankruptcy court should consider the effect of lifting the stay on the administration of the bankruptcy estate. Id. (internal citations omitted). Here, the instant cases represent one of the largest bankruptcy filings in the history of this Court with profound ripple effects on the precarious automotive industry that accounts for the Debtors substantial customer and creditor base. At this early stage in these chapter 11 cases, it is critical that the Debtors, as part of their reorganization efforts, concentrate all of their limited resources on financing their ongoing operations. 11. More specifically, from the Petition Date to the date hereof, the Debtors and their

advisors have been focused on activities that are critically important to the Debtors reorganization including, among other things, stabilizing and maintaining day-to-day operations, developing and implementing an overall business plan to serve as the basis for a plan of reorganization, analyzing and negotiating contracts and relationships with the Debtors customers and suppliers, and otherwise implementing their dual-track reorganization plan, which consists of pursuing M&A transactions and stand-alone plan of reorganization precursors. In addition, the Debtors must routinely respond to numerous pleadings filed by myriad third parties in these cases. Based on this small sample of the activity in these cases, the Debtors respectfully submit that devoting significant time and resources to defending the Debtors interests in Karmanns proposed patent infringement action, as the Debtors would undoubtedly be required to do given the nature of the action, would impede the administration of the Debtors bankruptcy estates at this early and vital stage.

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12.

Moreover, the very nature and scope of Karmanns patent infringement action

could have a significant impact on the Debtors operations, and thus its ability successfully to reorganize. In particular, Karmanns patent infringement allegations relate to Duras convertible top system for the 2005 Ford Mustang, a program that constitutes one of Duras largest programs for 2005. Consequently, Karmanns attempt to seek patent infringement damages and/or an injunction as it relates to one of Duras most profitable and valuable programs will inevitably have an adverse impact on the Debtors ongoing operations and restructuring efforts. 13. Karmann attempts to argue that the lifting of the stay would have no effect on the

administration of the Debtors bankruptcy estates because Dura is attempting to sell its convertible top business, so the lifting of the stay should have no impact on the estate if the business is sold. (Stay Motion at 13.) This argument is both misleading and disingenuous. In the first instance, Duras business has not been and may never be sold. Consequently, any pending lawsuit filed against Dura in the near future will necessarily constitute a pending lawsuit against the Debtors estates and interests. Moreover, a patent lawsuit brought at a time when the Debtors are marketing the Dura business may have an adverse impact on bids or otherwise hamper a successful sale of the business. Indeed, given that Karmann is a prospective bidder for Duras business, with every incentive to try to diminish its sales price, Debtors find the timing of the Stay Motion particularly suspect. 14. Accordingly, allowing Karmanns patent infringement lawsuit to proceed will

divert significant human and financial resources and disrupt the administration of the Debtors bankruptcy estates at this significant stage in the Debtors cases. Karmanns Stay Motion should be denied. For this reason alone,

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C. 15.

Karmann Has Failed To Demonstrate That Hardship To Karmann Outweighs Hardship To The Debtors. An additional, independent reason to deny the Stay Motion is that Karmann has

failed to demonstrate any harm that it will suffer that outweighs the hardship to the Debtors, should the automatic stay be maintained. In this regard, Karmann simply asserts that it would be severely harmed if the stay is not lifted because it would be unable to seek effective redress for its infringement claims. (Stay Motion at 13.) This argument lacks merit. A slight delay in adjudication of Karmanns infringement claims will have no serious impact on Karmanns interests for at least two reasons. 16. First, as noted above, Karmanns patent infringement action could have a

significant impact on the Debtors operations and its ability successfully to reorganize. Thus, Karmanns best chance to seek effective redress for its infringement claims (Stay Motion at 13) is to allow the Debtors to focus on a successful plan of reorganization, including the potential sale of Duras business. 17. Second, Karmann acknowledges that Duras alleged patent infringement began

pre-petition (Stay Motion at 9), yet Karmann failed to seek any redress at that time. In addition, Karmanns patent counsel allegedly conducted a patent infringement analysis as early as July 8, 2005, yet Karmann waited to file the Stay Motion until nearly 5 months later.2 (Stay Motion at Exhibit B.) Moreover, Karmann has not sought a preliminary injunction or temporary

Notably, Karmanns decision to file the Stay Motion only a few weeks after receiving Duras confidential Information Memorandum may be no small coincidence. As noted above, as a prospective buyer of Duras business, Karmann has every incentive to try to decrease the value of Duras business, including threatening the filing of this lawsuit. The suspect timing of Karmanns Stay Motion thus further warrants its denial.

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restraining order, indicating that the harm resulting from the alleged patent infringement both pre- and post-petition can likely be remedied with money damages.3 18. Likewise, Karmann has failed to demonstrate that any purported hardship

resulting from the maintenance of the stay outweighs the hardship to the Debtors should the stay be lifted. Instead, Karmann simply argues that the lifting of the stay would not create any additional expense to the estate because it would merely have the effect of shifting the forum of the litigation across the street to the United States District Court. (Stay Motion at 15.) As discussed above, the Debtors will suffer significant prejudice if the automatic stay is lifted, regardless of which forum ultimately handles the proceedings. (See 10-13 supra.) 19. Moreover, to the extent Karmann asserts that it could bring a district court action

against the debtor for post petition infringement without seeking relief from the automatic stay, thereby requiring the estate to defend in two forums, this argument also fails. (Stay Motion at 15.) The automatic stay also bars Karmann from filing a separate district court action based on the Debtors alleged post-petition infringement, because Karmanns patent infringement lawsuit could have been commenced before the Petition Date. See 11 U.S.C. 362(a)(1) (stating that automatic stay applies to actions that could have been commenced before the commencement of the case under this title); see also In re Mahurkar Double Lumen Hemodialysis Catheter Patent Litigation, 140 B.R. at 976 (holding that automatic stay barred both pre- and post-petition claims against debtor because the continuation during bankruptcy of conduct (such as the sale of [infringing products]) begun beforehand is most certainly one in
3 Significantly, even if Karmann were to proceed to judgment on its patent infringement claims, execution or enforcement of any resulting judgment would need to be adjudicated at some later point in time as part of the claims reconciliation process of the Debtors cases. See Larami Ltd. v. Yes! Entertainment Corp., 244 B.R. 56, 60 (D. N.J. 2000) (noting that plaintiff must apply to the Bankruptcy Court for release from the stay in the event that it seeks to satisfy a judgment from property of the bankruptcy estate); see also Bellini Imports v. Mason and Dixon Lines, Inc., 944 F.2d 199, 201 (4th Cir. 1991) (noting that a creditor must obtain relief from the stay to satisfy a judgment against property of the bankruptcy estate).

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which an action was or could have been commenced before the commencement of the case under this title); Advanced Computer Services of Michigan, Inc., 161 B.R. at 775 (holding that post-petition conduct was subject to automatic stay where complaint could have been commenced during the pre-petition period); In re National Shoes, Inc. v. National Shoes, Inc., 18 B.R. 507, 509 (Bankr. D. Maine 1982) (noting that bifurcation of pre- and post-petition claims does not change the fact that [plaintiffs] claim is one which arose before the commencement of the Defendants Chapter 11 case and could have been commenced before the commencement of the Defendants Chapter 11 case within the meaning and intent of Section 362(a)(1)). Here, Karmann admits in the Stay Motion that Duras [alleged] patent

infringement began prepetition and continues postpetition. (Stay Motion at 9, emphasis added.) Indeed, Karmanns patent was issued on May 4, 1993 (id. at 8) and the allegedly infringing technology manufactured by Dura was on the market as early as February 2005, several months before the Petition Date. Consequently, Karmanns patent infringement action based on both pre- and post-petition conduct could have been commenced before the Petition Date and is thus barred in its entirety by the automatic stay.4 20. Accordingly, because Karmann has failed to present evidence of harm that

outweighs the harm to the Debtors, Karmanns Stay Motion should be denied.
4 Even if Karmann could file a separate lawsuit in the district court for post-petition patent infringement without seeking a lifting of the stay, this Court has the power to stay such an action if required for purposes of equity. See 28 U.S.C. 959(a) (noting that post-petition actions shall be subject to the general equity power of such court so far as the same may be necessary to the ends of justice.); see also 11 U.S.C. 105(a) (noting that the court may issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of this title). More specifically, pursuant to 959(a), this Court may exercise its power to stay an action against the Debtors alleged postpetition conduct, if the Court determines that the action would embarrass, burden, delay or otherwise impede the reorganization proceedings. See In re Investors Funding Corp. of NY, 547 F.3d at 16; see also In re Television Studio School of New York, 77 B.R. at 412 (staying post-petition copyright infringement action against debtor, pursuant to 959(a), where action would result in prejudice, difficulty and embarrassment to Debtor); In re Revere Copper and Brass, Inc., 32 B.R. at 728 (affirming bankruptcy court order staying post-petition proceedings against debtor because action would embarrass, burden, delay or otherwise impede the reorganization proceedings). Likewise, pursuant to 105(a), this Court may issue any order . . . that is necessary or appropriate, including a stay of post-petition proceedings against the Debtors. As noted above, the nature and scope of Karmanns patent infringement allegations could have a significant impact on the Debtors operations, and thus its ability successfully to reorganize. (See 10-13 supra.) Consequently, a stay of Karmanns potential patent infringement lawsuit against Debtors for post-petition infringement, pursuant to 28 U.S.C. 959(a) and 11 U.S.C. 105(a), would also be warranted.

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D. 21.

Karmann Has Failed To Demonstrate That The District Court Has Special Expertise In Dealing With Karmanns Patent Infringement Action. This Court noted that in deciding whether to lift the stay, the Bankruptcy Court

should consider whether the tribunal where the creditor proposed to litigate has special expertise in dealing with the issues, especially when domestic relations are involved or when the intent of a state court order is at issue. In re Moralez, 128 B.R. at 528 (internal citations omitted). Here, Karmann asserts that the United States District Court for the Eastern District of Michigan possesses special expertise in dealing with patent issues simply by virtue of its jurisdiction over patent infringement claims, thereby warranting the lifting of the stay. (Stay Motion at 16.) Karmanns argument fails for at least two reasons. 22. First, this Court has concurrent jurisdiction over patent matters related to the

Debtors cases, thereby providing it with similar expertise over patent matters. See 28 U.S.C. 1334(b); see also Larami Ltd., 244 B.R. at 60 n.6 (noting that resolution of this patent infringement suit will impact the administration of the bankruptcy estate, thereby conferring related to jurisdiction to bankruptcy court). In addition, the United States District Court for the Eastern District of Michigan has referred any or all proceedings arising under Title 11 or arising in or related to a case under Title 11 to this Court, and has indicated its intention to give bankruptcy judges the broadest possible authority to administer cases and proceedings properly within their jurisdiction. See United States District Court, Eastern District of Michigan, Local Rule 83.50 (a). Here, Karmanns patent infringement action undoubtedly is related to the Debtors cases, because any alleged infringement will have a substantial impact on the Debtors estates and creditors, as discussed above. (See 10-13 supra.) Moreover, bankruptcy courts such as this one handle matters relating to debtors intellectual property rights on a daily basis, making this Court as well-equipped to handle Karmanns patent infringement allegations as any 11
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district court. Indeed, as noted above, even if Karmann were to proceed to judgment on its patent infringement claims in another court, execution or enforcement of any resulting judgment would need to be adjudicated by this Court as part of the claims reconciliation process of the Debtors cases. (See footnote 3, supra.) 23. Second, because of the significant impact Karmanns patent infringement claims

may have on the Debtors restructuring efforts, this Court is in the best position to deal with the issues arising out of such an action, including consideration of all the Debtors creditors. (See 10-13 supra.) Accordingly, Karmann fails to demonstrate that the United States District

Court for the Eastern District of Michigan has special expertise in dealing with Karmanns patent infringement action, such that a lifting of the stay is warranted. II. The Automatic Stay Should Remain Intact to Provide the Proper Breathing Spell to the Debtors as Mandated By the Bankruptcy Code. 24. In addition to Karmanns failure to meet its legal burden of demonstrating cause

to lift the stay, substantial policy reasons dictate that the stay remain intact. It is well established that the automatic stay imposed by section 362(a) of the Bankruptcy Code is one of the fundamental debtor protections provided by the bankruptcy laws. Smith v. First Am. Bank (In re Smith), 876 F.2d 524, 525 (6th Cir. 1989), quoting Midlantic Natl Bank v. New Jersey Dept of Envtl. Protection, 474 US. 494, 503 (1986). The stay provision of section 362 gives the debtor a breathing spell and stops all collection efforts, all harassment, and all foreclosure actions. Pertuso v. Ford Motor Credit Co., 233 F.3d 417, 423 (6th Cir. 2000), quoting Javens v. City of Hazel Park, 107 F.3d 359, 363 (6th Cir. 1997); Lynch v. Johns-Manville Sales Corp., 710 F.2d 1194, 1197 (6th Cir. 1983) (the automatic stay permits the debtor to attempt a repayment or reorganization plan, or simply to be relieved of the financial pressures that drove him into bankruptcy). 12
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25.

The Debtors in these cases need the breathing spell created by the automatic stay.

At this early stage of the cases, the Debtors must focus their limited resources on developing a strategy for a successful reorganization, without the significant distraction of defending their interests in Karmanns proposed patent infringement action. As noted above, the Debtors and their advisors have been focused on activities that are critically important to the Debtors reorganization. (See 11 supra.) Terminating the automatic stay now to permit Karmann to proceed with its patent infringement action would strip the Debtors of this desperately needed breathing spell. Notice 26. Notice of this Response has been given to the Core Group and Karmann as

required by the Case Management Procedures.5 In light of the nature of the relief requested, the Debtors submit that no further notice is required. No Prior Request 27. court. Conclusion 28. For all of the foregoing reasons, the Debtors respectfully request that the No prior request for the relief requested herein has been made to this or any other

Court deny the Stay Motion in its entirety.

Capitalized terms used in this paragraph 26 not otherwise defined herein shall have the meanings set forth in the First Amended Notice, Case Management and Administrative Procedures filed on June 9, 2005 [Docket No. 294].

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WHEREFORE, the Debtors respectfully request an entry of an order, substantially in the form attached hereto as Exhibit A, (a) denying the Stay Motion and (b) granting such other further relief as is just and proper. Dated: December 19, 2005 KIRKLAND & ELLIS LLP /s/ Ray C. Schrock Richard M. Cieri (NY RC 6062) Citigroup Center 153 East 53rd Street New York, New York 10022 Telephone: (212) 446-4800 Facsimile: (212) 446-4900 -andDavid L. Eaton (IL 3122303) Ray C. Schrock (IL 6257005) Marc J. Carmel (IL 6272032) 200 East Randolph Drive Chicago, Illinois 60601 Telephone: (312) 861-2000 Facsimile: (312) 861-2200 -andCARSON FISCHER, P.L.C. Joseph M. Fischer (P13452) 300 East Maple Road, Third Floor Birmingham, Michigan 48009 Telephone: (248) 644-4840 Facsimile: (248) 644-1832 Co-Counsel for the Debtors

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