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How Rey Partners

How Rey Partners

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Published by: Marie Beaudette Glatstein on Mar 21, 2013
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2030-000 143535.7
 
DIAMOND McCARTHY LLP
Andrew B. Ryan (
pro hac vice
)1201 Elm Street, Suite 3400Dallas, TX 75270 Telephone: 214-389-5300Facsimile: 214-389-5399Counsel for Allan B. Diamond,Chapter 11 Trustee for Howrey LLP
KORNFIELD, NYBERG, BENDES & KUHNER, P.C.
Eric A. Nyberg, Esq. (Bar No. 131105)Chris D. Kuhner, Esq. (Bar No. 173291)1970 Broadway, Suite 225Oakland, CA 94612 Telephone: 510-763-1000Facsimile: 510-273-8669Local Counsel for Allan B. Diamond,Chapter 11 Trustee for Howrey LLP
UNITED STATES BANKRUPTCY COURTNORTHERN DISTRICT OF CALIFORNIASAN FRANCISCO DIVISION
In re:HOWREY LLP,Debtor.Case No: 11-31376 DMChapter 11Hon. Dennis Montali(No Hearing Requested)
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 formerpartners of Howrey LLP who sign this stipulation and deliver a signed copy to the Trustee (eachindividually a “Partner,” collectively the “Partners” and, together with the Trustee, the “Parties”).
Case: 11-31376 Doc# 1068 Filed: 03/20/13 Entered: 03/20/13 08:14:01 Page 1 of62
 
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2030-000 143535.7 /426748.1
2
RECITALS
 A.
 
On April 11, 2011, certain creditors of Howrey filed a chapter 7 involuntarypetition in the United States Bankruptcy Court for the Northern District of California entitled
In reHowrey LLP
, Case No. 11-31376 (the “Bankruptcy Case”).B.
 
On June 6, 2011, the United States Bankruptcy Court for the Northern District of California (the “Bankruptcy Court”) entered an order converting the Bankruptcy Case to a caseunder chapter 11 of the Bankruptcy Code.C.
 
On October 12, 2011, the Trustee was appointed. In the ensuing months, the Trustee has investigated Claims(as that term is defined by 11 U.S.C. § 101(5)) against variouspersons and entities, including the Partners.D.
 
 The Partners believe that any Claims the Trustee could allege against them lackmerit and/or are subject to complete defenses.E.
 
 The Parties wish to avoid the cost and inconvenience of litigation in order toattempt to resolve amicably the Claims the Trustee may hold against the Partners and, to that end,are currently engaged in settlement discussions.F.
 
 The Trustee believes that he may have to initiate Claims against various thirdparties including, without limitation, the Partners, on or before June 6, 2013 (the “FilingDeadline”).G.
 
 To afford the Parties the opportunity, and additional time if necessary, to resolvetheir disputes, the Parties have agreed that any applicable statutes of limitations, statutes of repose,laches periods, or other time-based defenses (including, without limitation, the limitations periodsset forth in 11 U.S.C. §§ 108, 546, 549, and 550, as well as any limitations periods under state lawthat may apply to any Claims) (collectively, the “Limitations Periods”) and defenses to the Claims(including permissive and compulsory counterclaims) that have not expired as of the date an orderapproving this Stipulation is entered by the Bankruptcy Court should be tolled as set forth below. The time during which the Limitations Periods are tolled hereunder is referred to herein as the“Tolling Period.”
Case: 11-31376 Doc# 1068 Filed: 03/20/13 Entered: 03/20/13 08:14:01 Page 2 of62
 
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3H.
 
 The Parties intend that any Claim and defenses to any Claim (including permissiveand compulsory counterclaims) that are viable as of the date this Bankruptcy Court enters thisStipulation shall remain viable, by reason of this Stipulation, throughout the Tolling Period.
STIPULATIONNOW THEREFORE
, in exchange for the consideration set forth herein, the sufficiencyof which each Party acknowledges, the Parties stipulate as follows:1.
 
 The running of any and all Limitations Periods that would apply to any Claims anddefenses to the Claims (including permissive and compulsory counterclaims) between the Trusteeand any of the Partners shall be tolled through and including September 6, 2013 unless furtherextended by the Parties; provided, however, that (i) the Trustee or any Partner or Partners mayterminate the Tolling Period by written notice according to the provisions set forth below (the“Termination Notice”); (ii) any Partner shall deliver his or her Termination Notice to DiamondMcCarthy LLP, Attn: Andrew Ryan, 1201 Elm Street, Suite 3400, Dallas, Texas 75270; and(iii) the Trustee shall deliver his Termination Notice as to any Partner or Partner(s) by writtennotice delivered to the Partner(s) at the email address set forth below his or her name below (or asspecified in a subsequent notice delivered to the Trustee), with a copy to Klee, Tuchin, Bogdanof& Stern LLP, Attn: Matthew Heyn, 1999 Avenue of the Stars, 39th Floor, Los Angeles, CA90067. Any Termination Notice delivered hereunder shall be effective and thereby end the Tolling Period on the twentieth calendar day following delivery of such notice unless thetwentieth calendar day is a Saturday, Sunday, legal holiday or a day on which the BankruptcyCourt is not open for business (a “Non-business Day”), in which event the Tolling Period shall endat 11:59 p.m. Pacific Time on the first business day following such Non-business Day.2.
 
 The Parties expressly stipulate, covenant, and agree that forbearance by the Trusteefrom commencing litigation on the Claims before the Filing Deadline is good and adequateconsideration for the stipulations, covenants, and agreements of the Partners contained in thisStipulation.3.
 
If a Partner provides a Termination Notice to the Trustee, that Partner’s Termination Notice shall have no effect on the Tolling Period applicable to the Trustee and any o
 
Case: 11-31376 Doc# 1068 Filed: 03/20/13 Entered: 03/20/13 08:14:01 Page 3 of62

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