Case 14-10663-KG Doc 200 Filed 09/19/14 Page 1 of 5 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE In re Allonhill, LLC, Chapter 11 Case No.: 14-10663 (KG) Debtor. CERTIFICATION OF COUNSEL REGARDING STIPULATION TO FURTHER MODIFY AUTOMATIC STAY IN ORDER TO PERMIT APPEAL TO PROCEED I, Evan T. Miller, counsel to Allonhill, LLC (the Debtor ), hereby certify and state as follows: 1. On March 26, 2014 (the Petition Date ), the Debtor filed its voluntary petition for relief under title 11 of chapter 11 of the United States Code (the Bankruptcy Code ) in the United States Bankruptcy Court for the District of Delaware (the Bankruptcy Court ). 2. On March 5, 2014, prior to the Petition Date, the District Court for the City and County of Denver, Colorado (the Colorado Court ), in the case styled Allonhill, LLC v. Aurora Bank, FSB (Case No. 12CV6381/Div. 203) (the Aurora Litigation ) found in favor of defendant/counterclaimant Aurora Bank, FSB (now known as Aurora Commercial Corp. ( Aurora ) and against the Debtor on Aurora Bank s breach of contract and fraud counterclaims and awarded damages of $25,845,329.00 to Aurora, along with statutory prejudgment interest (the Aurora Judgment ). 3. On April 15, 2014, upon the Debtor s Motion for and Order Pursuant to 11 U.S.C. 362, Fed. R. Bankr. P. 4001 and Del. L.R. 4001-1, to Modify the Automatic Stay to Permit Appeal to Proceed, the Bankruptcy Court entered the Order Pursuant to 11 {BAY:02576234v1}
Case 14-10663-KG Doc 200 Filed 09/19/14 Page 2 of 5 U.S.C. 362, Fed. R. Bankr. P. 4001 and Del. Bankr. L. R. 4001-1 Modifying Automatic Stay to Permit Appeal to Proceed [D.I. 62] (the Lift Stay Order, a true copy of which is attached as Exhibit A to the stipulation agreed to by the Debtor and Aurora for a further modification of the Automatic Stay (which stipulation (the Stipulation ) is attached as Exhibit 1 to the Proposed Order (as defined below)) modifying the automatic stay for the purpose of allowing the Debtor to pursue an appeal of the Aurora Litigation to final resolution, and for Aurora to defend the appeal to final resolution. 4. The Lift Stay Order specifically provides that Aurora is stayed from taking any action to proceed to a decision and enter judgment in respect of its motion for Entry of Prejudgment Interest and its Bill of Costs, without further order of the Court. 5. On April 18, 2014, the Debtor filed its appeal of the Aurora Litigation in the Court of Appeals, State of Colorado (the Appellate Court). 6. On July 11, 2014, the Appellate Court issued an order (the Appellate Court Stay Order ), a true copy of which is attached to the Stipulation as Exhibit B, staying all proceedings in this appeal pending further orders of the bankruptcy court. 7. In Appellate Court Stay Order, the Appellate Court questioned whether the judgment in this case was final due to the fact that the Colorado Court, although ordering prejudgment interest, did not include a specific amount of prejudgment interest in its written order. 8. Aurora Bank had filed a motion (the Pre-Judgment Interest Motion ) on March 26, 2014 (the Petition Date) seeking entry of prejudgment interest in the Colorado Court, calculating the amount of prejudgment interest due from Allonhill, LLC to be {BAY:02576234v1} 2
Case 14-10663-KG Doc 200 Filed 09/19/14 Page 3 of 5 $4,304,899.07 (a copy of that motion with attached affidavit regarding prejudgment interest is attached to the Stipulation as Exhibit C). 9. Because the Pre-Judgment Interest Motion was filed on the Petition Date and was therefore automatically stayed by the operation of 11 U.S.C. 362(a), the Colorado Court did not make a finding concerning the amount of prejudgment interest. 10. On July 18, 2014 the Parties filed with the Appellate Court a Joint Motion to Lift Stay and Order Briefing Schedule (a true copy of which is attached to the Stipulation as Exhibit D) requesting that the stay issued by the Appellate Court be lifted on the grounds that under the circumstances of this case, calculation of the amount of prejudgment interest is a purely ministerial act and the parties therefore agree that the judgment in this case is final and that this appeal should not be delayed for the ministerial act of amending the judgment with prejudgment interest in the amount of $4,304,899.07. 11. On August 28, 2014, the Appellate Court issued an Order lifting the Bankruptcy Stay and giving the Parties 35 days in which to pursue a final order complying with the decision previously rendered in the case of Grand County Custom Homebuilding, LLC v. Bell, 148 P.3d 398, 401 (Colo. App. 2006), which requires that an order of the Colorado Court is not final until pre-judgment interest has been awarded. 12. While the Debtor does not waive, and specifically reserves, any of its challenges to the judgment entered or damages awarded by the Colorado Court and/or its argument that total damages should be limited, the Debtor does not dispute Aurora s calculation of the amount of prejudgment interest on the damages awarded by the Colorado Court in the Aurora Litigation. {BAY:02576234v1} 3
Case 14-10663-KG Doc 200 Filed 09/19/14 Page 4 of 5 13. Because the terms of the Lift Stay Order prohibit Aurora Bank from taking any action to proceed to a decision and enter judgment in respect of its motion for Entry of Prejudgment Interest, the Parties have stipulated, subject to approval by this Court, to the Stipulation in order to permit Aurora Bank, as stipulated by the Debtor, to pursue a final order from the Colorado Court complying with the decision previously rendered in the case of Grand County Custom Homebuilding, LLC v. Bell, 148 P.3d 398, 401 (Colo. App. 2006), by including an award of prejudgment interest in the amount of $4,304,899.07. 14. The Parties have agreed to submit to this Court for approval the Stipulation, which further modifies the automatic stay in the above-captioned case in order to permit Aurora to seek entry of a final judgment (including prejudgment interest in the amount of $4,304,899.07) by the Colorado Court, and to permit the Colorado Court to enter such a final judgment, consistent with the Stipulation. Accordingly, the Parties respectfully request that the Court approve the Stipulation by entering the proposed form of order (the Proposed Order ) attached to this Certification of Counsel as Exhibit A at the Court s earliest convenience. [remainder of page intentionally left blank] {BAY:02576234v1} 4
Case 14-10663-KG Doc 200 Filed 09/19/14 Page 5 of 5 Dated: September 19, 2014 Wilmington, Delaware BAYARD, P.A. /s/ Evan T. Miller Neil B. Glassman (No. 2087) Justin R. Alberto (No. 5126) Evan T. Miller (No. 5364) 222 Delaware Avenue, Suite 900 Wilmington, DE 19801 E-mail: nglassman@bayardlaw.com jalberto@bayardlaw.com emiller@bayardlaw.com - and - Christopher R. Donoho III, Esq. Lynn W. Holbert, Esq. HOGAN LOVELLS US LLP 875 Third Avenue New York, NY 10022 E-mail: chris.donoho@hoganlovells.com lynn.holbert@hoganlovells.com Counsel to the Debtor and Debtor in Possession {BAY:02576234v1} 5
Case 14-10663-KG Doc 200-1 Filed 09/19/14 Page 1 of 3 EXHIBIT A {BAY:02576234v1}
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Case 14-10663-KG Doc 200-2 Filed 09/19/14 Page 1 of 3 EXHIBIT B {BAY:02576234v1}
Case 14-10663-KG Doc 200-2 Filed 09/19/14 Page 2 of 3 Colorado Court of Appeals 2 East 14th Avenue Denver, CO 80203 DATE FILED: July 11, 2014 CASE NUMBER: 2014CA740 Denver District Court 2012CV6381 Plaintiff-Appellant: Allonhill Llc, v. Court of Appeals Case Number: 2014CA740 Defendant-Appellee: Aurora Community Corp f/k/a Aurora Bank, FSB. ORDER OF THE COURT TO: APPELLANT Upon review of the notice of appeal and the district court register of actions including the suggestion of bankruptcy and district court order of April 3, 2014, the Court ORDERS that all further proceedings in this appeal are STAYED pending further orders of the Bankruptcy Court. 11 U.S.C. 362(a). The Court FURTHER ORDERS that appellant shall notify this Court in writing of the status of the bankruptcy proceedings within 63 days of this date and every 63 days thereafter until the stay is discharged. The Court FURTHER NOTES that the judgment of March 5, 2014 includes an award of statutory prejudgment interest. However, it does not appear that the amount of prejudgment interest has been reduced to a sum certain. See Grand
Case 14-10663-KG Doc 200-2 Filed 09/19/14 Page 3 of 3 County Custom Homebuilding, LLC v. Bell, 148 P.3d 398, 401 (Colo. App. 2006) (a judgment awarding prejudgment interest is not final until the amount of such interest is reduced to a sum certain). Therefore, it appears that there may not yet be a final, appealable judgment. The Court will issue an Order to Show Cause addressing this jurisdictional issue after the bankruptcy stay is lifted. BY THE COURT jb/sa 2
Case 14-10663-KG Doc 200-3 Filed 09/19/14 Page 1 of 9 EXHIBIT C {BAY:02576234v1}
Case 14-10663-KG Doc 200-3 Filed 09/19/14 Page 2 of 9 DISTRICT COURT, CITY AND COUNTY OF DENVER, COLORADO Denver City and County Building 1437 Bannock Street, Room 256 Denver, Colorado 80202 Plaintiff: #$%&'#()*'$+#,-./0#123#1456#7+84#9, #()*);<#)$+#=>(5>8$(=5?$@# #?%A'#;B,>'C+#1451?D28=5# ALLONHILL, LLC v. Defendant: AURORA COMMERCIAL CORP., f/k/a Aurora Bank, FSB Attorneys for Defendant and Counterclaim Plaintiff: Frederick J. Baumann, Esq. Trevor G. Bartel, Esq. LEWIS ROCA ROTHGERBER LLP One Tabor Center Suite 3000 1200 17th St. Denver, Colorado 80202-5855 (303) 623-9000 fbaumann@lrrlaw.com tbartel@lrrlaw.com, "&*') *(# &%$+, Case No. 2012CV6381 Ctrm: Div: 203 Allan J. Arffa (admitted pro hac vice) Liza M. Velazquez (admitted pro hac vice) Gregory F. Laufer (admitted pro hac vice) PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP 1285 Avenue of the Americas New York, New York 10019 (212) 373-3000 aarffa@paulweiss.com lvelazquez@paulweiss.com glaufer@paulweiss.com DEFENDANT AND COUNTERCLAIM PLAINTIFF AURORA COMMERCIAL CORP. S F/K/A AURORA BANK, FSB S MOTION FOR ENTRY OF PREJUDGMENT INTEREST 2004706291_1
Case 14-10663-KG Doc 200-3 Filed 09/19/14 Page 3 of 9 Defendant and Counterclaim Plaintiff Aurora Commercial Corp. f/k/a Aurora Bank, FSB ( Aurora ), through its undersigned counsel at Lewis Roca Rothgerber LLP and Paul, Weiss, Rifkind, Wharton & Garrison LLP, pursuant to Colo. Rev. Stat. 5-12-102, hereby submits the following Motion for Entry of Prejudgment Interest and, in support thereof, states: 1. On March 5, 2014, the Court entered Findings of Fact, Conclusions of Law and Order (the March 5 Decision ) in which it found in favor of Aurora and against Plaintiff Allonhill, LLC ( Allonhill ) on Aurora s breach of contract and fraud counterclaims and awarded damages of $25,845,329.00 to Aurora, along with statutory prejudgment interest. (March 5 Decision at 68.) 2. The Court docket reflects that judgment in that amount in favor of Aurora and against Allonhill was entered on March 5, 2014. Prejudgment interest for payments to Allonhill 3. In the March 5 Decision, the Court found that Aurora paid Allonhill $24,045,329 in fees and costs pursuant to invoices that Allonhill had sent to Aurora for Allonhill s work through January 2012. March 5 Decision 198. 4. The Court held that Aurora is entitled to recover those fees and costs from Allonhill. March 5 Decision at 65. 5. Under Colo. Rev. Stat. 5-12-102, the statutory prejudgment interest rate is 8% per year, compounded annually. 6. For the period September 9, 2011 through March 5, 2014, at the statutory prejudgment rate of 8% per year, compounded annually, Allonhill owes Aurora a total of $4,134,487.88 in pre-judgment interest on the payments that Aurora made to Allonhill. Affidavit of Stephanie Camara-Ray in Support of Aurora Commercial Corp. s F/K/A Aurora Ban FSB s Motion for Entry of Prejudgment Interest ( Camara-Ray Aff. ) 4 12. Prejudgment interest for costs of transition to Navigant 7. In the March 5 Decision, the Court held that Aurora sustained damages in the amount of $1,800,000 based on Allonhill s termination and Aurora s subsequent retention of a new independent consultant, Navigant Consulting, Inc. ( Navigant ). March 5 Decision 209. 8. The Court held that Aurora is entitled to recover those additional damages. Trial Order at 65. 9. The transition to Navigant was completed on or about December 31, 2012. Camara-Ray Aff. 14. 2004706291_1 2
Case 14-10663-KG Doc 200-3 Filed 09/19/14 Page 4 of 9 10. At the statutory rate of 8% per year, compounded annually, Allonhill owes Aurora approximately $170,411.19 on the $1,800,000 in Navigant transition costs for the period December 31, 2012 through March 5, 2014. Camara-Ray Aff. 15. Total prejudgment interest 11. The total prejudgment interest that Allonhill owes Aurora is $4,304,899.07. WHEREFORE, Defendant and Counterclaim Plaintiff Aurora respectfully requests the Court enter an award of prejudgment interest in its favor and against Allonhill, in the total amount of $4,304,899.07 and such other and further relief as is just and proper. DATED: March 26, 2014 Respectfully submitted, LEWIS ROCA ROTHGERBER LLP s/ Trevor G. Bartel Frederick J. Baumann, Atty. Reg. #12156 Trevor G. Bartel, Atty. Reg. #40449 LEWIS ROCA ROTHGERBER LLP 1200 17th Street, Suite 3000 Denver, Colorado 80202-5855 (T) (303) 628-9542 (F) (303) 623-9222 fbaumann@rlrrlaw.com and Allan J. Arffa (admitted pro hac vice) Liza M. Velazquez (admitted pro hac vice) Gregory F. Laufer (admitted pro hac vice) PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP 1285 Avenue of the Americas New York, New York 10019-6064 (T) (212) 373-3000 (F) (212) 492-0203 aarffa@paulweiss.com lvelazquez@paulweiss.com glaufer@paulweiss.com Attorneys for Defendant and Counterclaim Plaintiff 2004706291_1 3
Case 14-10663-KG Doc 200-3 Filed 09/19/14 Page 5 of 9 CERTIFICATE OF SERVICE I hereby certify that on the 26th day of March, 2014, a true and correct copy of the foregoing DEFENDANT AND COUNTERCLAIM PLAINTIFF AURORA COMMERCIAL CORP. S F/K/A AURORA BANK, FSB S MOTION FOR ENTRY OF PREJUDGMENT INTEREST was filed via ICCES, which will send notice of the filing to the following: Gary J. Ceriani, #1888 Valeri S. Pappas, #29939 Jennifer A. Tiedeken, #42674 Davis & Ceriani, P.C. 1350 17th Street, Suite 400 Denver, Colorado 80202 gceriani@davisandceriani.com vpappas@davisandceriani.com jtiedeken@davisandceriani.com David D. Aufhauser (admitted pro hac vice) Stephen D. Andrews (admitted pro hac vice) Ryan P. McCarthy (admitted pro hac vice) Andrew Elliott, #40648 Williams & Connolly LLP 725 Twelfth Street, N.W. Washington, DC 20005 daufhauser@wc.com sandrews@wc.com rmccarthy@wc.com aelliott@wc.com s/ Tracy M. King Tracy M. King 2004706291_1 4
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Case 14-10663-KG Doc 200-4 Filed 09/19/14 Page 1 of 15 Exhibit D
Case 14-10663-KG Doc 200-4 Filed 09/19/14 Page 2 of 15 COURT OF APPEALS, STATE OF COLORADO Colorado State Judicial Building Two East 14th Avenue Denver, Colorado 80203 APPEAL FROM DISTRICT COURT, CITY AND COUNTY OF DENVER Honorable Edward D. Bronfin, Judge Case Number 2012CV6381 ALLONHILL, LLC Plaintiff-Appellant DATE FILED: July 18, 2014 10:13 AM FILING ID: 2C0329898C866 CASE NUMBER: 2014CA740 v. AURORA COMMERCIAL CORP. f/k/a AURORA BANK, FSB Defendant-Appellee Attorneys for Plaintiff-Appellant: Norman R. Mueller, #5853 HADDON, MORGAN & FOREMAN, P.C. 150 E. 10 th Ave. Denver, Colorado 80203 (P) (303) 831-7364 (F) (303) 832-1015 Email: nmueller@hmflaw.com COURT USE ONLY Case Number: 2014CA740 David D. Aufhauser (pro hac vice) Stephen D. Andrews (pro hac vice) Ryan P. McCarthy (pro hac vice) Andrew Elliott WILLIAMS & CONNOLLY LLP 725 Twelfth Street, N.W. Washington, DC 20005 (P) 202-434-5229 (F) 202-434-5029 Email: daufhauser@wc.com sandrews@wc.com rmccarthy@wc.com aelliott@wc.com Attorneys for Plaintiff-Appellant
Case 14-10663-KG Doc 200-4 Filed 09/19/14 Page 3 of 15 Frederick J. Baumann, Esq. Trevor G. Bartel, Esq. One Tabor Center Suite 3000 1200 17th St. Denver, CO 80202-5855 Telephone: (303) 623-9000 Email: fbuamann@lrrlaw.com; tbartel@lrrlaw.com Allen J. Arffa, Esq. (pro hac vice) Liza M. Velazquez, Esq. (pro hac vice) Gregory F. Laufer, Esq. (pro hac vice) PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP 1285 Avenue of the Americas New York, NY 10019 Telephone: (212) 373-3000 Email: aarffa@paulweiss.com; lvelazquez@paulweiss.com; glaufer@paulweiss.com Attorneys for Defendant-Appellee JOINT MOTION TO LIFT STAY AND ORDER BRIEFING SCHEDULE For the following reasons, the parties respectfully request that this Court lift the stay ordered in this appeal and issue an order setting the briefing schedule: 1. On July 11, 2014, this Court issued an order staying all proceedings in this appeal pending further orders of the bankruptcy court. The Court did so after reviewing of the notice of appeal and the district court register of actions including the suggestion of bankruptcy and district court order of April 3, 2014. 2. The bankruptcy court has entered an order specifically permitting this appeal to proceed. A copy of the Order Pursuant to 11 U.S.C. 362, Fed. R. Bankr. P. 4001 and Del. Bankr. L. R. 4001-1 Modifying Automatic Stay to Permit Appeal to Proceed entered by the United States Bankruptcy Court for the District of Delaware on April 15, 2014, is attached as Exhibit A. 1 As set forth in that order, the bankruptcy court modified the automatic stay to permit the parties to pursue the appeal in this case to a final resolution. 1 A copy of this order was attached to the Notice of Appeal as Appendix 2. 2
Case 14-10663-KG Doc 200-4 Filed 09/19/14 Page 4 of 15 3. Therefore, the parties jointly request that this Court lift the stay ordered by this Court on July 11, 2014. 4. In its order, this Court also questioned whether the judgment in this case was final due to the fact that the district court, although ordering prejudgment interest, did not include a specific amount of prejudgment interest in its written order. 5. Defendant-Appellee Aurora Community Corp. ( Aurora ) filed a motion for entry of prejudgment interest in the Denver District Court, calculating the amount of prejudgment interest that was due pursuant to the district court s award of damages in the amount of $25,845,329.00. A copy of that motion with attached affidavit regarding prejudgment interest is attached as Exhibit B. Aurora calculated that the prejudgment interest was $4,304,899.07. This pleading was filed shortly before the suggestion of bankruptcy was filed. Consequently, the district court did not make a finding concerning the amount of prejudgment interest. 6. While Plaintiff-Appellant Allonhill, LLC ( Allonhill ) does not waive any of its challenges to the judgment entered or damages awarded by the district court or its argument that total damages should be limited, Allonhill does not dispute Aurora s calculation of the amount of prejudgment interest on the damages awarded by the district court in its order of March 5, 2014. 7. Under the circumstances of this case, calculation of the amount of prejudgment interest is a purely ministerial act. The parties therefore agree that the judgment in this case is final and that this appeal should not be delayed for the ministerial act of amending the judgment with prejudgment interest in the amount of $4,304,899.07. 8. Since the record has been filed in this case, the parties respectfully request that this Court enter a briefing schedule pursuant to C.A.R. 31. Dated: July 18, 2014. 3
Case 14-10663-KG Doc 200-4 Filed 09/19/14 Page 5 of 15 Respectfully submitted, HADDON, MORGAN AND FOREMAN, P.C. LEWIS ROCA ROTHGERBER LLP s/ Norman R. Mueller s/ Frederick J. Baumann Norman R. Mueller, #5853 150 E. 10th Ave. Denver, Colorado 80203 (P) (303) 831-7364 (F) (303) 832-1015 Email: nmueller@hmflaw.com and David D. Aufhauser (pro hac vice) Stephen D. Andrews (pro hac vice) Ryan P. McCarthy (pro hac vice) Andrew Elliott WILLIAMS & CONNOLLY LLP 725 Twelfth Street, N.W. Washington, DC 20005 (P) 202-434-5229 (F) 202-434-5029 daufhauser@wc.com sandrews@wc.com rmccarthy@wc.com aelliott@wc.com Attorneys for Plaintiff-Appellant Frederick J. Baumann, Esq. Trevor G. Bartel, Esq. One Tabor Center Suite 3000 1200 17th St. Denver, CO 80202-5855 Telephone: (303) 623-9000 Email: fbuamann@lrrlaw.com; tbartel@lrrlaw.com and Allen J. Arffa, Esq. (pro hac vice) Liza M. Velazquez, Esq. (pro hac vice) Gregory F. Laufer, Esq. (pro hac vice) PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP 1285 Avenue of the Americas New York, NY 10019 Telephone: (212) 373-3000 Email: aarffa@paulweiss.com; lvelazquez@paulweiss.com; glaufer@paulweiss.com Attorneys for Defendant-Appellee 4
Case Case 14-10663-KG Doc Doc 200-4 62 Filed 04/15/14 09/19/14 Page 16 of of 215 DATE FILED: July 18, 2014 10:13 AM FILING ID: 2C0329898C866 CASE NUMBER: 2014CA740 EXHIBIT A
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Case 14-10663-KG Doc 200-4 Filed 09/19/14 Page 8 of 15 DISTRICT COURT, CITY AND COUNTY OF DENVER, COLORADO Denver City and County Building 1437 Bannock Street, Room 256 Denver, Colorado 80202 Plaintiff: DATE FILED: July 18, 2014 10:13 AM FILING ID: 2C0329898C866 CASE NUMBER: 2014CA740 ALLONHILL, LLC v. Defendant: AURORA COMMERCIAL CORP., f/k/a Aurora Bank, FSB Attorneys for Defendant and Counterclaim Plaintiff: Frederick J. Baumann, Esq. Trevor G. Bartel, Esq. LEWIS ROCA ROTHGERBER LLP One Tabor Center Suite 3000 1200 17th St. Denver, Colorado 80202-5855 (303) 623-9000 fbaumann@lrrlaw.com tbartel@lrrlaw.com COURT USE ONLY Case No. 2012CV6381 Ctrm: Div: 203 Allan J. Arffa (admitted pro hac vice) Liza M. Velazquez (admitted pro hac vice) Gregory F. Laufer (admitted pro hac vice) PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP 1285 Avenue of the Americas New York, New York 10019 (212) 373-3000 aarffa@paulweiss.com lvelazquez@paulweiss.com glaufer@paulweiss.com DEFENDANT AND COUNTERCLAIM PLAINTIFF AURORA COMMERCIAL CORP. S F/K/A AURORA BANK, FSB S MOTION FOR ENTRY OF PREJUDGMENT INTEREST 2004706291_1 EXHIBIT B
Case 14-10663-KG Doc 200-4 Filed 09/19/14 Page 9 of 15 Defendant and Counterclaim Plaintiff Aurora Commercial Corp. f/k/a Aurora Bank, FSB ( Aurora ), through its undersigned counsel at Lewis Roca Rothgerber LLP and Paul, Weiss, Rifkind, Wharton & Garrison LLP, pursuant to Colo. Rev. Stat. 5-12-102, hereby submits the following Motion for Entry of Prejudgment Interest and, in support thereof, states: 1. On March 5, 2014, the Court entered Findings of Fact, Conclusions of Law and Order (the March 5 Decision ) in which it found in favor of Aurora and against Plaintiff Allonhill, LLC ( Allonhill ) on Aurora s breach of contract and fraud counterclaims and awarded damages of $25,845,329.00 to Aurora, along with statutory prejudgment interest. (March 5 Decision at 68.) 2. The Court docket reflects that judgment in that amount in favor of Aurora and against Allonhill was entered on March 5, 2014. Prejudgment interest for payments to Allonhill 3. In the March 5 Decision, the Court found that Aurora paid Allonhill $24,045,329 in fees and costs pursuant to invoices that Allonhill had sent to Aurora for Allonhill s work through January 2012. March 5 Decision 198. 4. The Court held that Aurora is entitled to recover those fees and costs from Allonhill. March 5 Decision at 65. 5. Under Colo. Rev. Stat. 5-12-102, the statutory prejudgment interest rate is 8% per year, compounded annually. 6. For the period September 9, 2011 through March 5, 2014, at the statutory prejudgment rate of 8% per year, compounded annually, Allonhill owes Aurora a total of $4,134,487.88 in pre-judgment interest on the payments that Aurora made to Allonhill. Affidavit of Stephanie Camara-Ray in Support of Aurora Commercial Corp. s F/K/A Aurora Ban FSB s Motion for Entry of Prejudgment Interest ( Camara-Ray Aff. ) 4 12. Prejudgment interest for costs of transition to Navigant 7. In the March 5 Decision, the Court held that Aurora sustained damages in the amount of $1,800,000 based on Allonhill s termination and Aurora s subsequent retention of a new independent consultant, Navigant Consulting, Inc. ( Navigant ). March 5 Decision 209. 8. The Court held that Aurora is entitled to recover those additional damages. Trial Order at 65. 9. The transition to Navigant was completed on or about December 31, 2012. Camara-Ray Aff. 14. 2004706291_1 2
Case 14-10663-KG Doc 200-4 Filed 09/19/14 Page 10 of 15 10. At the statutory rate of 8% per year, compounded annually, Allonhill owes Aurora approximately $170,411.19 on the $1,800,000 in Navigant transition costs for the period December 31, 2012 through March 5, 2014. Camara-Ray Aff. 15. Total prejudgment interest 11. The total prejudgment interest that Allonhill owes Aurora is $4,304,899.07. WHEREFORE, Defendant and Counterclaim Plaintiff Aurora respectfully requests the Court enter an award of prejudgment interest in its favor and against Allonhill, in the total amount of $4,304,899.07 and such other and further relief as is just and proper. DATED: March 26, 2014 Respectfully submitted, LEWIS ROCA ROTHGERBER LLP s/ Trevor G. Bartel Frederick J. Baumann, Atty. Reg. #12156 Trevor G. Bartel, Atty. Reg. #40449 LEWIS ROCA ROTHGERBER LLP 1200 17th Street, Suite 3000 Denver, Colorado 80202-5855 (T) (303) 628-9542 (F) (303) 623-9222 fbaumann@rlrrlaw.com and Allan J. Arffa (admitted pro hac vice) Liza M. Velazquez (admitted pro hac vice) Gregory F. Laufer (admitted pro hac vice) PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP 1285 Avenue of the Americas New York, New York 10019-6064 (T) (212) 373-3000 (F) (212) 492-0203 aarffa@paulweiss.com lvelazquez@paulweiss.com glaufer@paulweiss.com Attorneys for Defendant and Counterclaim Plaintiff 2004706291_1 3
Case 14-10663-KG Doc 200-4 Filed 09/19/14 Page 11 of 15 CERTIFICATE OF SERVICE I hereby certify that on the 26th day of March, 2014, a true and correct copy of the foregoing DEFENDANT AND COUNTERCLAIM PLAINTIFF AURORA COMMERCIAL CORP. S F/K/A AURORA BANK, FSB S MOTION FOR ENTRY OF PREJUDGMENT INTEREST was filed via ICCES, which will send notice of the filing to the following: Gary J. Ceriani, #1888 Valeri S. Pappas, #29939 Jennifer A. Tiedeken, #42674 Davis & Ceriani, P.C. 1350 17th Street, Suite 400 Denver, Colorado 80202 gceriani@davisandceriani.com vpappas@davisandceriani.com jtiedeken@davisandceriani.com David D. Aufhauser (admitted pro hac vice) Stephen D. Andrews (admitted pro hac vice) Ryan P. McCarthy (admitted pro hac vice) Andrew Elliott, #40648 Williams & Connolly LLP 725 Twelfth Street, N.W. Washington, DC 20005 daufhauser@wc.com sandrews@wc.com rmccarthy@wc.com aelliott@wc.com s/ Tracy M. King Tracy M. King 2004706291_1 4
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Case 14-10663-KG Doc 200-5 Filed 09/19/14 Page 1 of 3 EXHIBIT E {BAY:02576234v1}
Case 14-10663-KG Doc 200-5 Filed 09/19/14 Page 2 of 3 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE In re Allonhill LLC, Chapter 11 Case No.: 14-10663 (KG) Debtor. Related D.I.: ORDER PURSUANT TO 11 U.S.C. 362, FED. R. BANKR. P. 4001 AND DEL. BANKR. L.R. 4001-1 FURTHER MODIFYING AUTOMATIC STAY IN ACCORDANCE WITH STIPULATION TO MODIFY AUTOMATIC STAY Upon reviewing the Stipulation to Modify Automatic Stay, dated as of September 19, 2014 and attached hereto as Exhibit 1, by and between Allonhill, LLC, as debtor in possession (the Debtor ), and Aurora Commercial Corp., f/k/a/ Aurora Bank, FSB ( Aurora Bank ) (collectively, the Parties ) 1 ; and notice of the Stipulation having been properly and sufficiently provided; and it appearing that the Parties have agreed to the relief requested in the Stipulation; and sufficient cause appearing therefor; IT IS HEREBY: 1. ORDERED that the Stipulation is Approved; and it is further 2. ORDERED that the automatic stay, to the extent that the automatic stay applies, is modified solely for the purpose of allowing the Debtor to pursue an appeal of the Aurora Litigation to final resolution, and for the further purpose of allowing Aurora Bank to make a motion to the Colorado Court, consistent with the Stipulation, for an award of prejudgment interest and entry of a final judgment in the matter of the Aurora Litigation; and it is further 3. ORDERED that the Debtor is hereby authorized and empowered to take all actions necessary to implement the relief granted in this Order; and it is further 1 Capitalized terms used but not otherwise defined herein shall have the meanings set forth in the Stipulation. {BAY:02576266v1}
Case 14-10663-KG Doc 200-5 Filed 09/19/14 Page 3 of 3 4. ORDERED that this Court shall retain jurisdiction with respect to all matters arising from or related to the implementation of this Order. Dated:, 2014 Wilmington, Delaware The Honorable Kevin Gross United States Bankruptcy Judge {BAY:02576266v1}
Case 14-10663-KG Doc 200-6 Filed 09/19/14 Page 1 of 8 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE In re Allonhill LLC, Chapter 11 Case No.: 14-10663 (KG) Debtor. Related D.I.: ORDER PURSUANT TO 11 U.S.C. 362, FED. R. BANKR. P. 4001 AND DEL. BANKR. L.R. 4001-1 FURTHER MODIFYING AUTOMATIC STAY IN ACCORDANCE WITH STIPULATION TO MODIFY AUTOMATIC STAY Upon reviewing the Stipulation to Modify Automatic Stay, dated as of September 19, 2014 and attached hereto as Exhibit 1, by and between Allonhill, LLC, as debtor in possession (the Debtor ), and Aurora Commercial Corp., f/k/a/ Aurora Bank, FSB ( Aurora Bank ) (collectively, the Parties ) 1 ; and notice of the Stipulation having been properly and sufficiently provided; and it appearing that the Parties have agreed to the relief requested in the Stipulation; and sufficient cause appearing therefor; IT IS HEREBY: 1. ORDERED that the Stipulation is Approved; and it is further 2. ORDERED that the automatic stay, to the extent that the automatic stay applies, is modified solely for the purpose of allowing the Debtor to pursue an appeal of the Aurora Litigation to final resolution, and for the further purpose of allowing Aurora Bank to make a motion to the Colorado Court, consistent with the Stipulation, for an award of prejudgment interest and entry of a final judgment in the matter of the Aurora Litigation; and it is further 3. ORDERED that the Debtor is hereby authorized and empowered to take all actions necessary to implement the relief granted in this Order; and it is further 1 Capitalized terms used but not otherwise defined herein shall have the meanings set forth in the Stipulation. {BAY:02576233v1}
Case 14-10663-KG Doc 200-6 Filed 09/19/14 Page 2 of 8 4. ORDERED that this Court shall retain jurisdiction with respect to all matters arising from or related to the implementation of this Order. Dated:, 2014 Wilmington, Delaware The Honorable Kevin Gross United States Bankruptcy Judge {BAY:02576233v1}
Case 14-10663-KG Doc 200-6 Filed 09/19/14 Page 3 of 8 EXHIBIT 1 {BAY:02576233v1}
Case 14-10663-KG Doc 200-6 Filed 09/19/14 Page 4 of 8 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE In re Allonhill, LLC, Chapter 11 Case No.: 14-10663 (KG) Debtor. STIPULATION TO FURTHER MODIFY AUTOMATIC STAY This stipulation to further modify the automatic stay in the above-captioned case (the Stipulation ) is made this 19th day of September, 2014, by and between Allonhill, LLC, as debtor in possession (the Debtor ), and Aurora Commercial Corp., f/k/a/ Aurora Bank, FSB ( Aurora Bank ) (collectively, the Parties ) WHEREAS on March 26, 2014 (the Petition Date ), the Debtor filed its voluntary petition for relief under title 11 of chapter 11 of the United States Code (the Bankruptcy Code ) in the United States Bankruptcy Court for the District of Delaware (the Bankruptcy Court ); and WHEREAS prior to the Petition Date, on March 5, 2014, the District Court for the City and County of Denver, Colorado (the Colorado Court ), in the case styled Allonhill, LLC v. Aurora Bank, FSB (Case No. 12CV6381/Div. 203) (the Aurora Litigation ) found in favor of Aurora and against the Debtor on Aurora s breach of contract and fraud counterclaims and awarded damages of $25,845,329.00 to Aurora, along with statutory prejudgment interest (the Aurora Judgment ); and WHEREAS on April 15, 2014, upon the Debtor s Motion for an Order Pursuant to 11 U.S.C. 362, Fed. R. Bankr. P. 4001 and Del. L.R. 4001-1, to Modify the Automatic Stay to Permit Appeal to Proceed, the Bankruptcy Court entered the Order Pursuant to 11 U.S.C. 362, Fed. R. Bankr. P. 4001 and Del. Bankr. L. R. 4001-1 Modifying Automatic Stay to Permit Appeal to Proceed (the Lift Stay Order, a true copy of which is attached hereto as Exhibit A) modifying the automatic stay for the purpose of allowing the Debtor to pursue an appeal of the Aurora Litigation to final resolution, and for Aurora to defend the appeal to final resolution; and WHEREAS, the Lift Stay Order specifically provides that Aurora is stayed from taking any action to proceed to a decision and enter judgment in respect of its motion for Entry of Prejudgment Interest and its Bill of Costs, without further order of the Court; and WHEREAS, on April 18, 2014, the Debtor filed its notice of appeal of the Aurora Litigation in the Court of Appeals, State of Colorado (the Appellate Court); and {BAY:02576233v1}
Case 14-10663-KG Doc 200-6 Filed 09/19/14 Page 5 of 8 WHEREAS on July 11, 2014, the Appellate Court issued an order (the Appellate Court Stay Order ), a true copy of which is attached hereto as Exhibit B, staying all proceedings in the appeal pending further orders of the Bankruptcy Court; and WHEREAS in the Appellate Court Stay Order, the Appellate Court questioned whether the Colorado Court s judgment in the Aurora Litigation was final due to the fact that the Colorado Court, although ordering prejudgment interest, did not include a specific amount of prejudgment interest in its written order; and WHEREAS Aurora Bank had filed a motion (the Pre-Judgment Interest Motion ) on March 26, 2014 (the Petition Date ) seeking entry of prejudgment interest in the Colorado Court, calculating the amount of prejudgment interest due from Allonhill, LLC to be $4,304,899.07 (a copy of that motion with attached affidavit regarding prejudgment interest is attached hereto as Exhibit C); and WHEREAS, because the Pre-Judgment Interest Motion was filed on the Petition Date and was therefore automatically stayed by the operation of 11 U.S.C. 362(a), the Colorado Court did not make a finding concerning the amount of prejudgment interest; and WHEREAS on July 18, 2014 the Parties filed a Joint Motion to Lift Stay and Order Briefing Schedule (a true copy of which is attached hereto as Exhibit D) requesting that the stay issued by the Appellate Court be lifted on the grounds that under the circumstances of this case, calculation of the amount of prejudgment interest is a purely ministerial act and the parties therefore agree that the judgment in this case is final and that this appeal should not be delayed for the ministerial act of amending the judgment with prejudgment interest in the amount of $4,304,899.07; and WHEREAS on August 28, 2014, the Appellate Court issued an Order giving the Parties 35 days in which to pursue a final order complying with the decision previously rendered in the case of Grand County Custom Homebuilding, LLC v. Bell, 148 P.3d 398, 401 (Colo. App. 2006), which holds that an order of the Colorado Court is not final until pre-judgment interest has been awarded; and WHEREAS while the Debtor does not waive any of its challenges to the judgment entered or damages awarded by the Colorado Court or its argument that total damages should be limited, the Debtor does not dispute Aurora s calculation of the amount of prejudgment interest on the damages awarded by the Colorado Court in the Aurora Litigation; and WHEREAS the Parties have agreed that upon further modification of the automatic stay by the Bankruptcy Court, Aurora Bank will request the Colorado Court to enter a final judgment that includes an award of prejudgment interest in the amount of $4,304,899.07; and WHEREAS, the terms of the Lift Stay Order prohibit Aurora Bank from taking any action to proceed to a decision and enter judgment in respect of its motion for entry of prejudgment interest; and {BAY:02576233v1}
Case 14-10663-KG Doc 200-6 Filed 09/19/14 Page 6 of 8 WHEREAS in order to allow the appeal of the Aurora Litigation to proceed to a final resolution, the Parties have agreed to a further modification of the Automatic Stay to permit Aurora Bank, as stipulated by the Debtor, to pursue a final order complying with the decision previously rendered in the case of Grand County Custom Homebuilding, LLC v. Bell, 148 P.3d 398, 401 (Colo. App. 2006), including an award of prejudgment interest in the amount of $4,304,899.07; and NOW THEREFORE, the Parties hereto hereby stipulate as follows: 1. Subject to approval by the Bankruptcy Court, the automatic stay imposed by 11 U.S.C. 362, as modified by the Order of the Bankruptcy Court dated April 15, 2014, is further modified and lifted for the additional purposes of: (a) allowing Aurora Bank to pursue a final judgment order in the Aurora Litigation awarding prejudgment interest in the amount of $4,304,899.07, that is considered final and appealable under the precedent set by the Appellate Court s decision in Grand County Custom Homebuilding, LLC v. Bell, 148 P.3d 398, 401 (Colo. App. 2006); and (b) allowing the Colorado Court to enter a final judgment including an award of prejudgment interest in accordance with the Appellate Court s decision in Grand County Custom Homebuilding, LLC v. Bell, 148 P.3d 398, 401 (Colo. App. 2006). 2. The Parties shall jointly seek an Order of the Bankruptcy Court in the form attached hereto as Exhibit E for further modification and lifting of the automatic stay, as described in the preceding paragraph 1; 3. Aurora Bank shall make a motion to the Colorado Court for a final judgment order in the Aurora Litigation awarding prejudgment interest in the amount of $4,304,899.07, that is considered final and appealable under the precedent set by the Appellate Court s decision in Grand County Custom Homebuilding, LLC v. Bell, 148 P.3d 398, 401 (Colo. App. 2006), consistent with this Stipulation; 4. The Parties shall cooperate in taking all reasonable actions necessary to obtain modification of the automatic stay from the Bankruptcy Court and a final judgment order in the Aurora Litigation awarding prejudgment interest in the amount of $4,304,899.07, in each case as contemplated by this Stipulation. 5. Except as provided herein, the Automatic Stay, as applicable, including, without limitation, those provisions prohibiting the execution, enforcement or collection of any judgment that may be rendered against the Debtor and/or assets of the Debtor s estate, shall remain in full force and effect and neither Aurora nor any of its agents, attorneys or representatives shall take any action to enforce or collect all or any portion of any such judgment from the Debtors, their estates or properties. 6. Nothing herein shall prejudice the filing of any proof of claim, notwithstanding that such claim(s) may be disallowed, expunged or waived in the Bankruptcy Case. {BAY:02576233v1}
Case 14-10663-KG Doc 200-6 Filed 09/19/14 Page 7 of 8 7. This Stipulation constitutes the entire agreement between the Parties and supersedes all prior agreements and understandings, both written and oral, between the Parties with respect to the subject matter hereof and, except as otherwise expressly provided herein, is not intended to confer upon any other person any rights or remedies hereunder. 8. The undersigned persons represent and warrant that they have full authority to execute this Stipulation on behalf of the respective Parties and that the respective Parties have full knowledge of and have consented to this Stipulation. 9. The modification of the Automatic Stay, as applicable and set forth herein, shall have no effect as to parties that are not a Party to this Stipulation. Furthermore, the Automatic Stay shall remain in full force and effect with respect to such other parties and their claims or causes of action, if any, against the Debtor or its estate. 10. Neither this Stipulation, nor any terms contained herein shall be offered or received in evidence or in any way referred to in any legal action or administrative proceeding among or between the parties hereto, other than as may be necessary: (a) to obtain approval and to enforce this Stipulation; (b) to seek damages or injunctive relief in connection therewith; or (c) to prove that the Automatic Stay, as applicable, have been modified to allow the Parties to seek any relief relating to the Aurora Litigation other than a final judgment from the Colorado Court and a final resolution of the appeal of the Aurora Litigation. 11. Each of the Parties shall bear its own attorneys fees and costs with respect to the execution and delivery of this Stipulation. 12. This Stipulation may be executed in counterparts, any of which may be transmitted by facsimile or electronic mail, and each of which shall be deemed an original and all of which together shall constitute one and the same instrument. 13. This Stipulation shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to principles of conflict of laws. 14. This Stipulation may not be amended without the express written consent of all Parties hereto and approval by the Court. 15. This Stipulation shall be binding upon the Parties hereto and upon all of their affiliates, assigns and successors. 16. It is acknowledged that each Party has participated in and jointly consented to the drafting of this Stipulation and that any claimed ambiguity shall not be construed for or against either Party on account of such drafting. {BAY:02576233v1}
Case 14-10663-KG Doc 200-6 Filed 09/19/14 Page 8 of 8 AGREED TO BY: BAYARD, P.A. /s/ Evan T. Miller Neil B. Glassman (No. 2087) Justin R. Alberto (No. 5126) Evan T. Miller (No. 5364) 222 Delaware Avenue, Suite 900 Wilmington, DE 19801 Telephone: (302) 655-5000 Facsimile: (302) 658-6395 E-mail:nglassman@bayardlaw.com jalberto@bayardlaw.com emiller@bayardlaw.com - and - Christopher R. Donoho III, Esq. Lynn Holbert, Esq. HOGAN LOVELLS US LLP 875 Third Avenue New York, NY 10022 Telephone: (212) 918-3000 Facsimile: (212) 918-3100 E-mail:chris.donoho@hoganlovells.com lynn.holbert@hoganlovells.com Counsel to the Debtor and Debtor in Possession FOX ROTHSCHILD LLP /s/ Seth A. Niederman Seth A. Niederman, Esquire (No. 4588) 919 North Market Street, 3rd Floor Wilmington, Delaware 19899-2323 Telephone: (302) 654-7444 Facsimile: (302) 656-8920 E-mail: sniederman@foxrothschild.com - and - Michael G. Menkowitz, Esquire Jason C. Manfrey, Esquire 2000 Market Street, 20 th Floor Philadelphia, PA 19103-3291 19801 Telephone: (215) 299-2000 Facsimile: (215) 299-2150 E-mail: mmenkowitz@foxrothschild.com jmanfrey@foxrothschild.com Counsel to Aurora Commercial Corp., f/k/a/ Aurora Bank, FSB Dated: September 19, 2014 Wilmington, DE Dated: September 19, 2014 Wilmington, DE {BAY:02576233v1}