How Rey Partners

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<p>1 DIAMOND McCARTHY LLP Andrew B. Ryan (pro hac vice) 2 1201 Elm Street, Suite 3400 Dallas, TX 75270 3 Telephone: 214-389-5300 4 Facsimile: 214-389-5399 5 Counsel for Allan B. Diamond, Chapter 11 Trustee for Howrey LLP 6 KORNFIELD, NYBERG, BENDES &amp; KUHNER, P.C. 7 Eric A. Nyberg, Esq. (Bar No. 131105) 8 Chris D. Kuhner, Esq. (Bar No. 173291) 1970 Broadway, Suite 225 9 Oakland, CA 94612 Telephone: 510-763-1000 10 Facsimile: 510-273-8669 11 Local Counsel for Allan B. Diamond, 12 Chapter 11 Trustee for Howrey LLP 13 14 15 16 In re: 17 HOWREY LLP, 18 19 20 21 22 23 24 25 26 27 28 Case:2030-000 11-31376 143535.7 Doc# 1068 Filed: 03/20/13 62 Entered: 03/20/13 08:14:01 Page 1 of STIPULATION TO TOLL CLAIMS This Stipulation to Toll Claims (this Stipulation) is entered into by and between Allan B. Diamond, Chapter 11 Trustee (the Trustee) for Howrey LLP (Howrey), and the former partners of Howrey LLP who sign this stipulation and deliver a signed copy to the Trustee (each individually a Partner, collectively the Partners and, together with the Trustee, the Parties). Debtor. UNITED STATES BANKRUPTCY COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION Case No: 11-31376 DM Chapter 11 Hon. Dennis Montali (No Hearing Requested)</p> <p>1 2 A.</p> <p>RECITALS On April 11, 2011, certain creditors of Howrey filed a chapter 7 involuntary</p> <p>3 petition in the United States Bankruptcy Court for the Northern District of California entitled In re 4 Howrey LLP, Case No. 11-31376 (the Bankruptcy Case). 5 B. On June 6, 2011, the United States Bankruptcy Court for the Northern District of</p> <p>6 California (the Bankruptcy Court) entered an order converting the Bankruptcy Case to a case 7 under chapter 11 of the Bankruptcy Code. 8 C. On October 12, 2011, the Trustee was appointed. In the ensuing months, the</p> <p>9 Trustee has investigated Claims (as that term is defined by 11 U.S.C. 101(5)) against various 10 persons and entities, including the Partners. 11 D. The Partners believe that any Claims the Trustee could allege against them lack</p> <p>12 merit and/or are subject to complete defenses. 13 E. The Parties wish to avoid the cost and inconvenience of litigation in order to</p> <p>14 attempt to resolve amicably the Claims the Trustee may hold against the Partners and, to that end, 15 are currently engaged in settlement discussions. 16 F. The Trustee believes that he may have to initiate Claims against various third</p> <p>17 parties including, without limitation, the Partners, on or before June 6, 2013 (the Filing 18 Deadline). 19 G. To afford the Parties the opportunity, and additional time if necessary, to resolve</p> <p>20 their disputes, the Parties have agreed that any applicable statutes of limitations, statutes of repose, 21 laches periods, or other time-based defenses (including, without limitation, the limitations periods 22 set forth in 11 U.S.C. 108, 546, 549, and 550, as well as any limitations periods under state law 23 that may apply to any Claims) (collectively, the Limitations Periods) and defenses to the Claims 24 (including permissive and compulsory counterclaims) that have not expired as of the date an order 25 approving this Stipulation is entered by the Bankruptcy Court should be tolled as set forth below. 26 The time during which the Limitations Periods are tolled hereunder is referred to herein as the 27 Tolling Period. 28 Case: 11-31376 Doc# 1068 Filed: 03/20/13 62 Entered: 03/20/13 08:14:01 2 Page 2 of</p> <p>2030-000 143535.7 /426748.1</p> <p>1</p> <p>H.</p> <p>The Parties intend that any Claim and defenses to any Claim (including permissive</p> <p>2 and compulsory counterclaims) that are viable as of the date this Bankruptcy Court enters this 3 Stipulation shall remain viable, by reason of this Stipulation, throughout the Tolling Period. 4 5 STIPULATION NOW THEREFORE, in exchange for the consideration set forth herein, the sufficiency</p> <p>6 of which each Party acknowledges, the Parties stipulate as follows: 7 1. The running of any and all Limitations Periods that would apply to any Claims and</p> <p>8 defenses to the Claims (including permissive and compulsory counterclaims) between the Trustee 9 and any of the Partners shall be tolled through and including September 6, 2013 unless further 10 extended by the Parties; provided, however, that (i) the Trustee or any Partner or Partners may 11 terminate the Tolling Period by written notice according to the provisions set forth below (the 12 Termination Notice); (ii) any Partner shall deliver his or her Termination Notice to Diamond 13 McCarthy LLP, Attn: Andrew Ryan, 1201 Elm Street, Suite 3400, Dallas, Texas 75270; and 14 (iii) the Trustee shall deliver his Termination Notice as to any Partner or Partner(s) by written 15 notice delivered to the Partner(s) at the email address set forth below his or her name below (or as 16 specified in a subsequent notice delivered to the Trustee), with a copy to Klee, Tuchin, Bogdanoff 17 &amp; Stern LLP, Attn: Matthew Heyn, 1999 Avenue of the Stars, 39th Floor, Los Angeles, CA 18 90067. Any Termination Notice delivered hereunder shall be effective and thereby end the 19 Tolling Period on the twentieth calendar day following delivery of such notice unless the 20 twentieth calendar day is a Saturday, Sunday, legal holiday or a day on which the Bankruptcy 21 Court is not open for business (a Non-business Day), in which event the Tolling Period shall end 22 at 11:59 p.m. Pacific Time on the first business day following such Non-business Day. 23 2. The Parties expressly stipulate, covenant, and agree that forbearance by the Trustee</p> <p>24 from commencing litigation on the Claims before the Filing Deadline is good and adequate 25 consideration for the stipulations, covenants, and agreements of the Partners contained in this 26 Stipulation. 27 3. If a Partner provides a Termination Notice to the Trustee, that Partners</p> <p>28 Termination Notice shall have no effect on the Tolling Period applicable to the Trustee and any of Case: 11-31376 Doc# 1068 Filed: 03/20/13 62 Entered: 03/20/13 08:14:01 3 Page 3 of</p> <p>2030-000 143535.7 /426748.1</p> <p>1 the other Partners. If the Trustee provides a Termination Notice to a Partner or certain partners, 2 the Trustees Termination Notice with respect to those Partners shall have no effect on the Tolling 3 Period applicable to the Trustee and any other Partners to whom the Trustee has not provided a 4 Termination Notice. 5 4. The Trustee shall not initiate any litigation against a Partner except on the earlier</p> <p>6 of: (i) any time after the Partner delivers Termination Notice to the Trustee, (ii) fifteen days after 7 the Trustee delivers a Termination Notice to a Partner or certain or all Partners, and (iii) August 8 30, 2013. If a Partner delivers a Termination Notice to the Trustee, or if the Trustee delivers a 9 Termination Notice to a Partner or certain Partners, either Parties Termination Notice shall have 10 no effect on the Trustees obligation hereunder not to sue other Partners with whom this 11 Stipulation remains in effect. 12 5. If the Trustee brings an action against one or more Partners after delivery of a</p> <p>13 Termination Notice but during the Tolling Period, no Party may put forward or rely on the time 14 that elapses during the Tolling Period in any way to defend against any Claims or defenses to the 15 Claims. Specifically, the Partners expressly stipulate, covenant, and agree that they will not assert 16 as a defense to any of the Claims that such Claims are barred, in whole or in part, by laches, 17 waiver, estoppel, or by the expiration of the applicable Limitations Periods, except to the extent 18 that such defense is based on time periods that exclude the Tolling Period in its entirety. 19 6. Except to counter a defense based on the expiration of one or more of the</p> <p>20 Limitations Periods or to enforce the terms of this Stipulation, this Stipulation shall not be offered, 21 received, or introduced as evidence or used for any purpose whatsoever, nor shall this Agreement 22 toll any Limitations Periods that may have run before the Bankruptcy Court enters an order 23 approving this Stipulation. 24 7. Nothing herein shall constitute or be deemed to constitute an admission,</p> <p>25 acknowledgment, waiver, or election on behalf of any Party as to any liability or wrongdoing, or 26 the applicability of any Limitations Periods. 27 8. Nothing herein shall constitute or be deemed to constitute an admission or</p> <p>28 acknowledgment on behalf of any Party as to the existence or viability of any Claims. Case: 11-31376 Doc# 1068 Filed: 03/20/13 62 Entered: 03/20/13 08:14:01 4 Page 4 of</p> <p>2030-000 143535.7 /426748.1</p> <p>1 Specifically, the Trustee and the Partners specifically reserve and do not waive any rights and 2 remedies against each other including, without limitation, rights and remedies related to the 3 Claims and defenses to the Claims (including permissive and compulsory counterclaims). 4 9. Each of the Parties mutually warrant and represent that, prior to the execution of</p> <p>5 this Stipulation: (a) each of them has thoroughly read this Stipulation and conducted an 6 independent and thorough investigation of all pertinent facts; (b) each of them has thoroughly 7 informed themselves of the terms, consents, conditions, and effects of this Stipulation; (c) each of 8 them has obtained the advice and benefit of counsel of their own choosing; (d) no representations 9 of any kind have been made by or on behalf of any of the Parties other than as expressly set forth 10 in this Stipulation; and (e) each of the Parties thereafter elected knowingly and voluntarily to 11 execute and enter into this Stipulation. 12 10. Each of the Parties stipulates, agrees, and warrants that: (a) the terms, extent, and</p> <p>13 duration of this Stipulation are reasonable; (b) they will not challenge or contest in any way the 14 capacity or the authority of any Party hereto to make Stipulation herein set forth; (c) the person or 15 persons executing this Stipulation on behalf of each Party has the necessary and appropriate 16 authority and capacity to execute this Stipulation and to make this Stipulation binding upon and 17 enforceable against that Party; and (d) the consideration for this Stipulation is mutual and 18 adequate. 19 11. This Stipulation does not constitute consent to jurisdiction in the Bankruptcy Court</p> <p>20 for any purpose except to enforce the terms of this Stipulation. 21 12. Nothing herein constitutes any waiver of any right, whether deemed substantive or</p> <p>22 procedural, that any Party may have (including without limitation, any right to trial by jury or to 23 compel arbitration) and shall solely affect the running of Limitations Periods as herein provided. 24 13. This Stipulation constitutes the entire and integrated agreement of the Parties with</p> <p>25 respect to the subject matters hereof, and, except as explicitly provided herein, may not be altered, 26 modified or amended, except in a writing signed by all the Parties. 27 14. This Stipulation shall be binding upon and inure to the benefit of the undersigned</p> <p>28 Parties and their respective current and future agents, trustees, successors, and assigns. Case: 11-31376 Doc# 1068 Filed: 03/20/13 62 Entered: 03/20/13 08:14:01 5 Page 5 of</p> <p>2030-000 143535.7 /426748.1</p> <p>1 Specifically, the Parties agree if any successor to the Trustee is appointed during the Tolling 2 Period, this Tolling Period shall be effective as to that successor. Save and except for the Parties 3 current and future agents, trustees, successors, and assigns, there are no third-party beneficiaries to 4 this Stipulation. 5 15. This Stipulation may be executed in several counterparts and, once executed, shall</p> <p>6 constitute an enforceable agreement, binding on all Parties who sign it, notwithstanding that all 7 Parties may not become signatories to the original or the same counterpart. If one or more 8 Partners listed below does not sign this Stipulation (the Non-Signatory Partners), (i) the 9 Stipulation shall have no effect on the Non-Signatory Partners, (ii) the Non-Signatory Partners 10 shall not be entitled to any benefits under this Stipulation, (iii) the Trustee shall have no 11 obligations as to the Non-Signatory Partners under this Stipulation, and (iv) the Non-Signatory 12 Partners may only receive the benefit of this Stipulation if they later become Adding Partners, as 13 that term is defined in paragraph 17 below. Regardless of the number of Non-Signatory Partners, 14 this Stipulation shall become effective with respect to the Partners who sign this Stipulation. 15 Signatures to this Stipulation transmitted by facsimile or by other electronic format shall be 16 deemed the same as original signatures and shall be considered legal and binding for purposes of 17 this Stipulation. 18 16. Any Partner(s) and the Trustee may agree to extend the Tolling Period under this</p> <p>19 Stipulation as between that Partner or those Partners and the Trustee by written agreement signed 20 by the Trustee (or his counsel) and the Partner(s) affected by the extended Tolling Period. It is not 21 required that all Partners agree to the extension of the Tolling Period between any Partners and the 22 Trustee. No further Court order shall be necessary to approve such an extension. 23 17. The Trustee and any former Howrey partner(s) who are not currently Parties to this</p> <p>24 Stipulation (Adding Partner(s)) may agree that the Adding Partner(s) shall be treated as Parties 25 to this Stipulation by written agreement signed by the Trustee (or his counsel) and the Adding 26 Partner(s). It is not required that Partners agree to the Adding Partner(s) being added to this 27 Stipulation. No further Court order shall be necessary to approve an addition. 28 Case: 11-31376 Doc# 1068 Filed: 03/20/13 62 Entered: 03/20/13 08:14:01 6 Page 6 of</p> <p>2030-000 143535.7 /426748.1</p> <p>Case: 11-31376</p> <p>Doc# 1068</p> <p>Filed: 03/20/13 62</p> <p>Entered: 03/20/13 08:14:01</p> <p>Page 7 of</p> <p>1</p> <p>STIPULATED AND AGREED TO AS OF March</p> <p>,</p> <p>2013.</p> <p>23</p> <p>HOWREYLLP</p> <p>5 6</p> <p>Allan B. Diamond Chapter 11 Trustee of Howrey LLP</p> <p>7 8 9 10 Notice email:</p> <p>PARTNER SIGNATORIES TO STIPULATION:</p> <p>Gregory Ballardi,</p> <p>c.</p> <p>\ \</p> <p>(</p> <p>?</p> <p>1.</p> <p>12 13 14 1516</p> <p>Richard Beckler Notice email:</p> <p>17 Notice email: 18 1920</p> <p>Michael Bell</p> <p>Walter Berger 21 22 23 24 25 26 27 28 Notice email: Jill Berkeley Notice email:</p> <p>2030.000143535.7/4267481</p> <p>7</p> <p>Case: 11-31376</p> <p>Doc# 1068</p> <p>Filed: 03/20/13 62</p> <p>Entered: 03/20/13 08:14:01</p> <p>Page 8 of</p> <p>1 2 3 45</p> <p>STIPULATED AN]) AGREED TO AS OF March HOWREY LLP</p> <p>,</p> <p>2013.</p> <p>Allan B. Diamond Chapter 11 Trustee of Howrey LLP</p> <p>6 7 8 9 10 11 12 13 14 15 16 17 Notice email: 18 19 20 Walter Berger 21 22 23 24 25 26 27 28 Notice email: Jill Berkeley Notice email:V</p> <p>PARTNER SIGNATORIES TO STIPULATION:</p> <p>Gregory Ballard Notice email:</p> <p>MJ&amp;Richardeckler</p> <p>Notice email:</p> <p>aut4kJ. 3e,JLei t</p> <p>Michael Bell</p> <p>2030-000 143535.7 /426748.1...</p>