IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE -----------------------------------------------------x In re: : Chapter 11 : ADVANTA CORP., et al., 1 : Case No. 09-13931 (KJC) : Debtors. : (Jointly Administered) -----------------------------------------------------x Hearing Date: TBD Objection Deadline: TBD MOTION OF THE TRUSTEE PURSUANT TO 11 U.S.C. 105(A), 108, 363 AND 546(A) FOR THE ENTRY OF AN ORDER APPROVING TOLLING AGREEMENTS FTI Consulting, Inc., as the Trustee (the Trustee ) for the trusts established under the confirmed Joint Plan Under Chapter 11 of the Bankruptcy Code (as modified on February 28, 2011, the Plan ) [Docket No. 1185], by and through its co-counsel, Latham & Watkins LLP and Drinker Biddle & Reath LLP, hereby moves (the Motion ) for the entry of an order (the Order ), in the form attached hereto as Exhibit A, pursuant to sections 105(a), 108, 363 and 546(a) of chapter 11 of title 11 of the United States Code (the Bankruptcy Code ), approving and authorizing the Trustee to enter into tolling agreements between the Trustee and certain insiders and non-insiders (the Tolling Agreements ) in a form similar to the form attached hereto as Exhibit B and subject to each of the parties negotiating terms for an individual tolling agreement. In support of this Motion, the Trustee respectfully represents as follows: 1 The Debtors in these jointly administered chapter 11 cases, along with the last four digits of each Debtor s federal tax identification number, were Advanta Corp. (2070) ( Advanta ), Advanta Investment Corp. (5627), Advanta Business Services Holding Corp. (4047), Advanta Business Services Corp. (3786), Advanta Shared Services Corp. (7074), Advanta Service Corp. (5625), Advanta Advertising Inc. (0186), Advantennis Corp. (2355), Advanta Mortgage Holding Company (5221), Advanta Auto Finance Corporation (6077), Advanta Mortgage Corp. USA (2654), Advanta Finance Corp. (8991), Advanta Ventures Inc. (5127), BE Corp. (8960), ideablob Corp. (0726), Advanta Credit Card Receivables Corp. (7955), Great Expectations International Inc. (0440), Great Expectations Franchise Corp. (3326), and Great Expectations Management Corp. (3328).
JURISDICTION AND VENUE 1. This Court has jurisdiction to consider this matter pursuant to 28 U.S.C. 157 and 1334. This is a core proceeding pursuant to 28 U.S.C. 157(b). Venue is proper before this Court pursuant to 28 U.S.C. 1408 and 1409. 2. The statutory predicate for the relief requested herein is sections 105(a), 108, 363 and 546(a) of the Bankruptcy Code. BACKGROUND 3. On November 8, 2009 (the Petition Date ), Advanta Corp. and certain other debtors each commenced a chapter 11 case in this Court by filing a voluntary petition for relief under the Bankruptcy Code, and on November 20, 2009, the remaining debtors filed chapter 11 petitions. 4. On May 14, 2010, Dennis Alter ( Alter ), former Chairman and Chief Executive Officer of Advanta Corp, filed proof of claim number 2341 ( Claim 2341 ) against Advanta Corp. On October 22, 2010, Alter filed proof of claim number 2904 ( Claim 2904 ) against Advanta Corp., which amended and superseded Claim 2341. Then, on March 29, 2011, Alter filed a second amended proof of claim against Advanta Corp., proof of claim number 2933 ( Claim 2933 ), which amended and superseded Claim 2933. In addition to the substantive claims asserted in the claims, Alter also asserts contingent, unliquidated claims seeking indemnification for liability and expenses that he incurred, or may incur in the future, in connection with claims against him in his capacity as a director, officer or employee of the Debtors. 5. On May 14, 2010, William Rosoff ( Rosoff ), former President and Vice Chairman of Advanta Corp., filed proof of claim number 2342 ( Claim 2342 ) against Advanta
Corp. Then, on October 22, 2010, Rosoff filed proof of claim number 2905 ( Claim 2905 ) against Advanta Corp., which amended and superseded Claim 2342. In addition to the substantive claims asserted in the claims, Rosoff also seeks similar contingent, unliquidated claims for indemnification. 6. On May 12, 2010, Philip Browne ( Browne ), former Senior Vice President and Chief Financial Officer of Advanta Corp., filed proof of claim number 2096 ( Claim 2096 ) against Advanta Corp. Claim 2096 has been satisfied, and a Notice of Satisfaction was filed on May 24, 2011. On May 13, 2010, Browne filed proof of claim number 2254 ( Claim 2254 ) against Advanta Corp. Pursuant to Claim 2254, Browne asserts a contingent, unliquidated claim seeking indemnification for liability and expenses that he incurred, or may incur in the future, in connection with claims against him in his capacity as a director or officer of the Debtors. 7. On May 13, 2010, Jay Dubow ( Dubow ), upon information and belief former outside counsel to Advanta Corp. and former General Counsel to Advanta Corp., filed proof of claim number 2253 ( Claim 2253 ) against Advanta Corp. Dubow also asserts contingent, unliquidated claims seeking indemnification for liability and expenses that he incurred, or may incur in the future, in connection with claims against him in his capacity as a director, officer or employee of the Debtors. Claim 2253 has been paid in part, and a Notice of Satisfaction was filed on May 24, 2011. The indemnification portion of the claim is the only portion that remains pending. 8. On November 2, 2010, Advanta Corp. and its affiliated debtors (the Debtors ) filed with the United States Bankruptcy Court for the District of Delaware (the Bankruptcy Court ) the Disclosure Statement for Debtors Joint Plan Under Chapter 11 of the Bankruptcy Code (as modified, the Disclosure Statement ), and the Debtors Joint Plan Under Chapter 11 of
the Bankruptcy Code (as modified, the Plan ). On December 17, 2010, the Bankruptcy Court entered an order approving the Disclosure Statement, as modified (the Disclosure Statement Order ). On February 11, 2011, the Order confirming the Plan was entered by the Bankruptcy Court. The effective date of the Plan occurred on February 28, 2011, and the Plan (as modified February 28, 2011) was substantially consummated. 9. Pursuant to section 5.5(f) of the Plan, the Trustee was granted authority to evaluate and prosecute, among other things, all Causes of Action as well as actions to recover alleged transfers that are subject to avoidance under applicable provisions of the Bankruptcy Code. 10. In connection with the authority granted to the Trustee under the Plan, the Trustee has been conducting an investigation into the validity of the claims filed by Alter, Rosoff, Browne and Dubow, potential Causes of Action against former insiders of the Debtors and certain payments made to former insiders that may be recoverable as preferences or fraudulent transfers. 11. The Trustee and the parties to the Tolling Agreements, including Alter, Rosoff, Browne and Dubow and other former insiders of the Debtors, have commenced good faith negotiations concerning potential resolution of the substantial claims filed by Alter, Rosoff, Browne and Dubow, the potential Causes of Action against them and other former insiders of the Debtors and any potential avoidance actions against them and the former insiders of the Debtors. The parties have done so in an effort to promote judicial economy in these cases and avoid unnecessary litigation expenses to the Trusts and the other parties to the Tolling Agreements. Moreover, because of the interrelated nature of substantial claims filed by Alter, Rosoff, Browne and Dubow, the potential Causes of Action against them and any potential avoidance actions
against them, resolution of these remaining issues outside of court will benefit all parties-ininterest by streamlining the distribution process and freeing up cash that would otherwise be reserved for potential litigation. 12. As a result of these good faith negotiations, the Trustee and the parties to the Tolling Agreements intend to enter into the Tolling Agreements, in a form similar to the one attached hereto as Exhibit B and subject to each of the parties negotiating terms for an individual tolling agreement, on a consensual basis in order to allow further negotiations and to secure a resolution of these outstanding issues. Moreover, the Trustee and the parties to the Tolling Agreements support the Motion and the entry of the Order attached hereto. RELIEF REQUESTED 13. By way of this Motion, the Trustee seeks the entry of an order pursuant to sections 105(a), 108, 363 and 546(a) of the Bankruptcy Code, authorizing the Trustee to enter into tolling agreements on terms similar to the Tolling Agreements, with any and all parties, and perform all obligations thereunder. 14. The Tolling Agreements address the statutes of limitations provided for under sections 108(a) and 546(a) of the Bankruptcy Code. As contemplated in section 108 of the Bankruptcy Code, state law provides for certain statutes of limitation for commencing fraudulent conveyance actions and other state law claims actions (the State Law Causes of Action ). Section 108 of the Bankruptcy Code provides: If applicable nonbankruptcy law, an order entered in a nonbankruptcy proceeding, or an agreement fixes a period within which the debtor may commence an action, and such period has not expired before the date of the filing of the petition, the trustee may commence such action only before the later of (1) the end of such period, including any suspension of such period occurring on or after the commencement of the case; or (2) two years after the order for relief.
11 U.S.C. 108(a). Unless extended, the deadline to commence the State Law Causes of Action may also expire on November 8, 2011. 15. Similarly, Section 546(a)(1)(A) of the Bankruptcy Code provides a two-year statute of limitations for commencing avoidance actions (the Avoidance Actions ) in a chapter 11 case. 11 U.S.C. 546(a)(1)(A) ( An action or proceeding under section 544, 545, 547, 548, or 553 of this title may not be commenced after the earlier of- (1) the later of (A) 2 years after the entry of the order for relief; or (B) 1 year after the appointment or election of the first trustee ). Thus, unless extended, the deadline for the Trustee to commence the filing of Avoidance Actions is November 8, 2011. 16. By this Motion, the Trustee wishes to preserve potential State Law Causes of Action and Avoidance Actions and avoid the running of any applicable statutes of limitation sufficiently in advance thereof. Thus, the Trustee seeks approval of the Tolling Agreements, the material terms of which are summarized below: Tolling of SOLs. The Tolling Period is defined as the period from and including the Starting Date [i.e., the date the Tolling Agreement is executed] until and including the date one-hundred and eighty (180) days from the Starting Date (the Termination Date ). The Termination Date may be extended by further written agreement between the Parties. Waiver of Defenses. Any statute or period of limitations (including any extension of such statute or period of limitations pursuant to section 108 of the Bankruptcy Code), statutes of repose, or other time-based limitations or defenses, whether at law, in equity, under statute, contract, or otherwise (including, but not limited to, the doctrine of laches or waiver), which might be asserted by the Parties as a time bar and/or limitation to the Causes of Action, is hereby tolled from the Starting Date until the Termination Date. Nothing in this Agreement shall operate to revive or extend the time for filing any Cause of Action that is time barred or barred by any applicable statute or period of limitations, statutes of repose, or other time-related defense as of the Starting Date. The Parties agree that: (a) sections 108 and 546(a) of the Bankruptcy Code and other statutes of limitation are not limits on the Bankruptcy Court s jurisdiction and may be tolled; and (b) if the Liquidating Trustee asserts a Cause of Action or Causes of Action, [COUNTERPARTY] agrees not to assert as a defense to any such Cause of
Action any statutes of limitation, statutes of repose, or other rule, defense, or principle based upon the passage of time during the Tolling Period (including, without limitation, waiver, estoppel, and laches) whether statutory, contractual, or otherwise governing the time periods for assertion of the Causes of Action. No Admission of Liability. This Agreement does not constitute either an admission of fact, liability, wrongdoing, or responsibility by any Party to any other Party, person, or entity, or an admission or acknowledgment by any Party that any statute of limitations, statute of repose, or other time-based defense applies to any of the Causes of Action. This Agreement shall not be construed as a waiver of any right presently available to the Parties (other than the limitations on defenses described in Sections 3 and 4 above) and this Agreement does not constitute any admission or waiver regarding jurisdiction over the Parties, venue, the Parties standing to bring suit, or the validity or justifiability of any of the potential Cause of Action or any of the potential counterclaims or defenses to any of the potential Causes of Action. Contract Rights. If a court of competent jurisdiction nonetheless dismisses an asserted Cause of Action or holds that the court does not have jurisdiction over any Cause of Action because the Cause of Action was filed after such date upon which any applicable statute of limitations would have expired but for this Agreement, the Parties agree that (x) the Liquidating Trustee shall nevertheless have a separate, distinct contractual right and claim against [COUNTERPARTY] subject to such Causes of Action; (y) [COUNTERPARTY] will have a corresponding separate and distinct contractual obligation to the Liquidating Trustee; and (z) such contractual right and claim shall be in the amount and for the remedies, if any, that the Liquidating Trustee would have been entitled to had it asserted such Cause of Action or Causes of Action prior to the date upon which any applicable statute of limitations would have expired but for this Agreement, subject to all other available rights, claims and defenses of [COUNTERPARTY]; provided, however, that the time period for the Liquidating Trustee and [COUNTERPARTY] asserting such contractual rights and claims shall expire 90 days after a court of competent jurisdiction dismisses an asserted Cause of Action or holds that the court does not have jurisdiction over any Cause of Action because the Cause of Action was filed after such date upon which any applicable statute of limitations would have expired. BASIS FOR RELIEF 17. Section 105(a) grants this Court authority to issue any order, process, ore judgment the Court deems necessary or appropriate to carry out the provisions of the Bankruptcy Code. 11 U.S.C. 105(a). In addition, inasmuch as these potential claims represent assets of the estates, and entering into the Tolling Agreements may not be in ordinary course of
business, the Trustee seeks authorization from this Court pursuant to section 363 of the Bankruptcy Code. 18. As set forth above, actions commenced pursuant to state law are bound by specific statutes of limitation and are subject to section 108 of the Bankruptcy Code. See 11 U.S.C. 108(a). Similarly, section 546(a) of the Bankruptcy Code provides a two-year statute of limitations period for the filing of avoidance actions pursuant to sections 544, 545, 547, 548, or 553 in a chapter 11 case. See 11 U.S.C. 546(a)(1)(A). These statutes of limitation may be waived by agreement among the relevant parties. 19. On several occasions, bankruptcy courts in the District of Delaware have approved tolling agreements similar to the Tolling Agreements that have included provisions tolling and extending the limitations periods contained in sections 108(a) and 546(a). See, e.g., In re Tribune Corp., 08-13141 (KJC) (Docket Nos. 6165, 6417 and 9238) (approving a proposed tolling agreement and then approving a proposed amendment thereto tolling and further tolling the limitation periods contained in sections 108(a), 546(a), and 549(d) of the Bankruptcy Code and in other applicable statute or law... the time within which the Debtors and Non-Debtor Affiliates may commence actions or proceedings with respect to Intercompany Actions that may exist among the Debtors and Non-Debtors Affiliates ); In re Anderson News, LLC, 09-10695 (CSS) (Docket No. 978) (approving tolling agreements extending Sections 108(a) and 546(a)); Official Comm. Of Unsecured Creditors of Teleglobe Communs. Corp. v. Pac. Bell Tel Co. (In re Teleglobe Communs. Corp.), 2004 Bankr. LEXIS 2166, at *11 12 (Bankr. D. Del. 2004) (honoring tolling agreement entered into by committee with certain defendants with respect to statute of limitations).
20. Moreover, courts that have addressed tolling have held that section 546(a) is a true statute of limitations and parties may therefore agree to extend this time period. See Marsh v. Levy (in re Martin Levy of Berlin D.M.D., P.C.), 416 B.R. 1, 7 (Bankr. D. Mass. 2009) (collecting cases from the Fifth, Ninth, Tenth, and Eleventh Circuits, as well as the Bankruptcy Courts for the Eastern District of New York, Southern District of Florida, Northern District of Illinois, Northern District of Oklahoma, Eastern District of California and District of Maine, all of which held that the deadline for commencing avoidance actions set by section 546(a) is subject to waiver, estoppel and tolling); see also 5-546 Collier on Bankruptcy 546.02[4] ( Although there is a split of authority among the courts of appeal, the better view is that statute of limitations in section 546(a) is not jurisdictional in nature. Under this view, if the defense is not timely asserted, a defendant may waive its statute of limitations defense under section 546(a). In addition, the section 546(a) limitations periods may be extended by stipulation between the parties to the proceeding. ) (internal citations omitted). 21. Indeed, the legislative history for the amendment to the Bankruptcy Code in 1994 which altered the limitations period buttresses the idea that section 546(a) limitation period may be tolled. The house Report provides that the amendment was not intended to affect the validity of any tolling agreement or to have any bearing on the equitable tolling doctrine where there has been fraud determined to have occurred. The time limits are not intended to be jurisdictional and can be extended by stipulation between the necessary parties to the action or proceeding. H.R. Rep. No. 103-835, at 49-50 (1994), reprinted in 1994 U.S.C.C.A.N. 3340, 3358; see also Clarification of Section-By-Section on H.R. 5116, 140 Cong. Rec. E2204 ( [Bankruptcy Code Section 546] is not intended to have any bearing on the equitable tolling doctrine where there has been fraud determined to have occurred. Further, the time limits are not intended to be
jurisdictional and can be extended by stipulation between the necessary parties to the action or proceeding ). 22. Similarly, bankruptcy courts throughout the country have held that a debtor or trustee may obtain a court order extending the time period established by section 546(a) for commencing avoidance actions. See, e.g., IBT Int l, Inc. v. Northern (In re Int l Admin. Servs.), 408 F. 3d 689 (11 th Cir. 2005) (affirming order extending section 546(a) limitations period); Frentz v. Stites & Harbison (In re Thermoview Indus., Inc.), 381 B.R. 255 (Bankr. W.D. Ky. 2008) (overruling motion to dismiss on limitations ground where court approved chapter 11 trustee s motion to extend section 546(a) limitations period). 23. The Trustee believes that under the current circumstances, it is not in the Trusts best interests to commence the Avoidance Actions and State Law Causes of Action at this time. Instead, the Trustee believes that the Trusts will be best served by pursuing a consensual, out-ofcourt resolution with former insiders. The tolling of the limitations periods contained in sections 108(a) and 546(a) is essential to such a pursuit. Given the support in the case law and legislative history, the Trustee believes the relief it is requesting in the Motion is authorized by the Bankruptcy Code and is in the best interests of the estates, its creditors, and the parties-in-interest in these cases. 24. In the remote event a court ultimately finds that sections 108(a) or 546(a) create a jurisdictional bar, the provisions of the Tolling Agreements protect and preserve any Avoidance Actions and State Law Causes of Action by creating contractual causes of action, which mirror and preserve the relief available if a jurisdictional bar were not present and are subject to agreedupon time constraints for being asserted. Specifically, pursuant to the Tolling Agreements, if a court finds that it lacks jurisdiction over an Avoidance Action or State Law Cause of Action as a
result of any statute of limitation, the Party asserting the action shall have a separate, distinct contractual right and claims against the Party subject to such cause of action. This same procedure was recently approved by the Court in Tribune. See In re Tribune Corp., 08-13141 (KJC) (Docket N. 6427) (approving tolling agreement with similar contractual language to protect against a court finding that it lacks jurisdiction to consider the claims that the parties intended to toll). 25. The Trustee believes that approval of, and entry into, the Tolling Agreements, in a form similar to the one attached hereto as Exhibit B and subject to each of the parties negotiating terms for an individual tolling agreement, are in the best interests of the estates and their creditors because the arrangement will effectively preserve estate assets and decrease the expenditure of resources until such time as the Trustee believes it necessary to move forward with prosecution of the claims. Moreover, to the extent good faith negotiations can more efficiently foster resolution, the arrangement contemplated by the Tolling Agreements will be beneficial to all parties-in-interest. The Tolling Agreements are part of an evolving process to preserve value for the benefit of the estates, and the Trustee reserves the right to prosecute additional claims or enter into additional tolling agreements as necessary to maximize the value of the estates. Therefore, the Trustee also requests that the Court authorize the Trustee to enter into such additional tolling agreements, with any and all parties, for additional avoidance and non-avoidance claims the Trusts and/or estates may have against any such party. NOTICE 26. A copy of this Motion is being served by CM/ECF upon the Office of the United States Trustee and all parties who have formally requested notices in this case pursuant to Federal Rule of Bankruptcy Procedure Rule 2002. In light of the nature of the relief requested
herein, the Trustee submits that no other or further notice of hearing is required and such additional notice be excused under the circumstances. WHEREFORE the Trustee respectfully requests entry of the Order granting the relief requested herein and such other and further relief as the Court may deem just and appropriate. Dated: November 1, 2011 Wilmington, Delaware DRINKER BIDDLE & REATH LLP /s/ Howard A. Cohen Howard A. Cohen (DE 4082) 1100 North Market Street, Suite 1000 Wilmington, DE 19801 Telephone: (302) 467-4200 Facsimile: (302) 467-4201 - and - Robert K. Malone (pro hac vice) Marita S. Erbeck (pro hac vice) 500 Campus Drive Florham Park, NJ 07932-1047 Telephone: (973) 549-7000 - and - Roger G. Schwartz (pro hac vice) Aaron M. Singer (pro hac vice) LATHAM & WATKINS LLP 885 Third Avenue New York, NY 10022-4834 Telephone: (212) 906-1200 Counsel for FTI Consulting, Inc., as Trustee
Exhibit A Proposed Order
IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE -----------------------------------------------------x In re: : Chapter 11 : ADVANTA CORP., et al., 2 : Case No. 09-13931 (KJC) : Debtors. : (Jointly Administered) -----------------------------------------------------x Re: Docket No. ORDER GRANTING MOTION OF THE TRUSTEE PURSUANT TO 11 U.S.C. 105(A), 108, 363 AND 546(A) FOR THE ENTRY OF AN ORDER APPROVING TOLLING AGREEMENTS Upon the motion (the Motion ), 3 of FTI Consulting, Inc. as the Trustee for the trusts established under the confirmed Plan of Reorganization of Advanta Corp., et al. (the Trustee ), by and through its attorneys, Latham & Watkins LLP and Drinker Biddle & Reath LLP, for the entry of an order approving tolling agreements, all as more fully described in the Motion; and this Court having jurisdiction to consider the Motion and the relief requested therein pursuant to 28 U.S.C. 157 and 1334; and consideration of the Motion and the relief requested therein being a core proceeding pursuant to 28 U.S.C. 157(b); and venue being proper before this Court pursuant to 28 U.S.C. 1408 and 1409; and due and proper notice of the Motion having been provided, and no other or further notice being required; and the Court having considered all responses to the Motion, if any, and all such responses having been either overruled or withdrawn; and upon the record of the proceedings had before the Court; and the Court having 2 3 The Debtors in these jointly administered chapter 11 cases, along with the last four digits of each Debtor s federal tax identification number, were Advanta Corp. (2070) ( Advanta ), Advanta Investment Corp. (5627), Advanta Business Services Holding Corp. (4047), Advanta Business Services Corp. (3786), Advanta Shared Services Corp. (7074), Advanta Service Corp. (5625), Advanta Advertising Inc. (0186), Advantennis Corp. (2355), Advanta Mortgage Holding Company (5221), Advanta Auto Finance Corporation (6077), Advanta Mortgage Corp. USA (2654), Advanta Finance Corp. (8991), Advanta Ventures Inc. (5127), BE Corp. (8960), ideablob Corp. (0726), Advanta Credit Card Receivables Corp. (7955), Great Expectations International Inc. (0440), Great Expectations Franchise Corp. (3326), and Great Expectations Management Corp. (3328). All capitalized terms used but not otherwise defined herein shall have the meanings ascribed to them in the Motion.
determined that the legal and factual bases set forth in the Motion establish just cause for the relief granted herein; and after due deliberation and sufficient cause appearing therefore, it is ORDERED that the Motion is GRANTED; and it is further ORDERED that the Trustee is authorized to enter into the Tolling Agreements, subject to each of the parties negotiating terms for an individual tolling agreement, and perform all obligations thereunder without further order of the Court; and it is further ORDERED that Trustee is authorized to enter into additional tolling agreements, with any and all parties, with respect to avoidance and non-avoidance claims and causes of action; and it is further ORDERED that to the extent the Trustee has already entered into tolling agreements, such tolling agreements are approved and the Trustee is authorized to perform all obligations thereunder without further order of the Court; and it is further ORDERED that, pursuant to the terms of the Tolling Agreements, the limitation periods contained in sections 108(a) and 546(a), among others, are hereby expressly tolled consistent with the provisions of the Tolling Agreements; and it is further ORDERED that the Trustee is authorized to take all actions necessary to effectuate the relief granted pursuant to this Order in accordance with the Motion; and it is further ORDERED that this Court shall retain jurisdiction to hear and determine all matters arising from the interpretation and/or implementation of this Order. Dated:, 2011 Wilmington, Delaware THE HONORABLE KEVIN J. CAREY UNITED STATES BANKRUPTCY JUDGE
Exhibit B Form of Tolling Agreement
TOLLING AGREEMENT This Tolling Agreement ( Agreement ) is executed as of and shall be effective immediately upon the date below (the Starting Date ), by and between FTI Consulting, Inc. ( FTI ), in its capacity as liquidating trustee (the Liquidating Trustee ) for each of the Liquidating Trusts (collectively, the Advanta Liquidating Trusts ) established pursuant to the Debtors Joint Plan Under Chapter 11 of the Bankruptcy Code dated November 2, 2010 (as modified February 28, 2011) (the Plan ) and [COUNTERPARTY]. The Liquidating Trustee and [COUNTERPARTY] shall each be referred to individually as a Party and collectively as the Parties. WHEREAS, commencing on November 8, 2009, Advanta Corp. and certain of its subsidiaries (collectively, Advanta or the Debtor ) voluntarily filed for relief under chapter 11 of title 11 of the United States Code (the Bankruptcy Code ) in the United States Bankruptcy Court for the District of Delaware (the Bankruptcy Court ), in case No. 09-13931 (KJC) (the Bankruptcy Cases ); WHEREAS, pursuant to that certain Order Confirming the Plan, dated February 11, 2011 (the Confirmation Order ), and that certain Notice of Effective Date, dated March 1, 2011, the Advanta Liquidating Trusts are currently being administered pursuant to the Plan; WHEREAS, pursuant to the Plan, the Liquidating Trustee is responsible for bringing any and all Causes of Action (as that term is defined under Section 1.91 of the Plan) held by the Advanta Liquidating Trusts;
WHEREAS, the Liquidating Trustee believes that the Advanta Liquidating Trusts may have certain Causes of Action against [COUNTERPARTY]; and WHEREAS, the Parties have agreed to provide additional time within which the Liquidating Trustee may bring such Causes of Action by establishing a tolling period (the Tolling Period, as defined below). NOW, THEREFORE, in consideration of the mutual covenants and conditions set forth herein, the Parties agree as follows: 1. The recitals above are incorporated herein by reference. 2. The Tolling Period is defined as the period from and including the Starting Date until and including the date one-hundred and eighty (180) days from the Starting Date (the Termination Date ). The Termination Date may be extended by further written agreement between the Parties. 3. Any statute or period of limitations (including any extension of such statute or period of limitations pursuant to section 108(a) of the Bankruptcy Code), statutes of repose, or other time-based limitations or defenses, whether at law, in equity, under statute, contract, or otherwise (including, but not limited to, the doctrine of laches or waiver), which might be asserted by [COUNTERPARTY] as a time bar and/or limitation to the Causes of Action, is hereby tolled from the Starting Date until the Termination Date. Nothing in this Agreement shall operate to revive or extend the time for filing any Cause of Action that is time barred or barred by any applicable statute or period of limitations, statutes of repose, or other time-related defense as of the Starting Date. 4. The Parties agree that: (a) sections 108(a) and 546(a) of the Bankruptcy Code and other statutes of limitation are not limits on the Bankruptcy Court s jurisdiction and may be tolled; and (b) if the Liquidating Trustee asserts a Cause of Action or Causes of Action, [COUNTERPARTY] agrees not to assert as a defense to any such Cause of Action any statutes of limitation, statutes of repose, or other rule, defense, or principle based upon the passage of time during the Tolling Period (including, without limitation, waiver, estoppel, and laches) whether statutory, contractual, or otherwise governing the time periods for assertion of the Causes of Action. If a court of competent jurisdiction nonetheless dismisses an asserted Cause of Action or holds that the court does not have jurisdiction over any Cause of Action because the Cause of Action was filed after such date upon which any applicable statute of limitations would have expired but for this Agreement, the Parties agree that (x) the Liquidating Trustee shall nevertheless have a separate, distinct contractual right and claim against [COUNTERPARTY] subject to such Causes of Action; (y) [COUNTERPARTY] will have a corresponding separate
and distinct contractual obligation to the Liquidating Trustee; and (z) such contractual right and claim shall be in the amount and for the remedies, if any, that the Liquidating Trustee would have been entitled to had it asserted such Cause of Action or Causes of Action prior to the date upon which any applicable statute of limitations would have expired but for this Agreement, subject to all other available rights, claims and defenses of [COUNTERPARTY]; provided, however, that the time period for the Liquidating Trustee and [COUNTERPARTY] asserting such contractual rights and claims shall expire 90 days after a court of competent jurisdiction dismisses an asserted Cause of Action or holds that the court does not have jurisdiction over any Cause of Action because the Cause of Action was filed after such date upon which any applicable statute of limitations would have expired. The agreements contained in this paragraph are a material inducement to each Party entering into this Agreement. 5. The Parties reserve all rights and defenses they may have under applicable law to prosecute or defend any Causes of Action other than the limitations on defenses described in Sections 3 and 4 above. Nothing herein shall affect the right of either Party to assert any right, claim, or defense against any person or entity not a Party to this Agreement. 6. This Agreement does not constitute either an admission of fact, liability, wrongdoing, or responsibility by any Party to any other Party, person, or entity, or an admission or acknowledgment by any Party that any statute of limitations, statute of repose, or other timebased defense applies to any of the Causes of Action. This Agreement shall not be construed as a waiver of any right presently available to the Parties (other than the limitations on defenses described in Sections 3 and 4 above) and this Agreement does not constitute any admission or waiver regarding jurisdiction over the Parties, venue, the Parties standing to bring suit, or the validity or justifiability of any of the potential Cause of Action or any of the potential counterclaims or defenses to any of the potential Causes of Action. 7. This Agreement may not be enlarged, modified, or altered except in writing signed by the Party against whom enforcement of the Agreement is sought. 8. The Parties agree that this Agreement shall apply to and be binding upon them, their predecessors, successors and assigns, and any parent, subsidiary, employee, affiliated entities or persons, and any entity into which the Parties may be merged or consolidated. No change in ownership, corporate status, or the control of a Party shall alter or affect the terms and conditions of this Agreement. 9. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument. 10. Notice required hereunder shall be sent by hand, overnight delivery service, facsimile, or electronic transmission to the addresses set forth below: If to the Liquidating Trustee: FTI Consulting, Inc. 3 Times Square 9 th Floor New York, New York 10036
Attn: Andrew Scruton Liz Park andrew.scruton@fticonsulting.com liz.park@fticonsulting.com With copies to Counsel to the Liquidating Trustee: Latham & Watkins, LLP 885 Third Avenue New York, New York 10022-4834 Attn: Roger G. Schwartz, Esq. Robert J. Malionek, Esq. Aaron M. Singer, Esq. roger.schwartz@lw.com robert.malionek@lw.com aaron.singer@lw.com Drinker Biddle & Reath LLP 500 Campus Drive Florham Park, New Jersey 07932-1047 Attn: Robert K. Malone, Esq. Marita E. Erbeck, Eq. robert.malone@dbr.com marita.erbeck@dbr.com and Drinker Biddle & Reath LLP 1100 N. Market Street Suite 1000 Wilmington, Delaware 19801 Attn: Howard A. Cohen, Esq. howard.cohen@dbr.com If to [COUNTERPARTY]: [INSERT NAME, ADDRESS, AND EMAIL ADDRESS] With copies to Counsel for [COUNTERPARTY]: [COUNTERPARTY COUNSEL] [INSERT NAME, ADDRESS, AND EMAIL ADDRESS]
11. This Agreement is severable, and the illegality or unenforceability of any part or provision of this Agreement shall not affect the enforceability of any other part or provision of this Agreement and this Agreement shall be construed as if such illegal or unenforceable part or provision were omitted. 12. The Parties agree that there are no third-party beneficiaries to this Agreement. 13. This Agreement comprises the entire agreement of the Parties with respect to the tolling of the statute or period of limitations, statutes of repose, laches, waiver, or other defense based on the lapse of time. This Agreement may not be controverted, modified, or altered based on any oral communications that occurred prior to the Starting Date, or thereafter. 14. The persons signing this Agreement represent that by signing for the respective Parties they represent they have the authority to bind such Party and the entities identified in paragraph 10 hereof, and each recognize that the other Party is relying on such representation. 15. This Agreement shall be governed by the laws of the State of Delaware, without regard to conflicts of laws principles. 16. The Parties agree that any disputes under this Agreement shall be subject to the exclusive jurisdiction and venue of the Bankruptcy Court, and each Party submits itself to such jurisdiction; further, each Party agrees to waive any argument that the Bankruptcy Court, specifically, or the District of Delaware, generally, is an improper or inconvenient forum for such disputes, provided, however that this Agreement does not otherwise subject the Parties to the jurisdiction of the Bankruptcy Court. 17. Each Party acknowledges that this Agreement was drafted jointly by the Parties, that each Party has been afforded the opportunity to consult with attorneys of its choosing and fully understands the terms hereof, to the extent that each party has not waived its right to consult with counsel, each Party has received legal advice from such Party s own attorneys regarding the advisability of entering into this Agreement, and that each Party is voluntarily executing this Agreement. This Agreement shall not be strictly construed against either Party on the ground that the rules for the construction of contracts require the resolution of any ambiguity against the Party that drafted the document. 18. This Agreement and the communications in connection with its negotiation will not be introduced into evidence in the trial of or in any deposition relating to the Causes of Action between the Parties, or be used in any manner in any litigation or otherwise, except to enforce the terms of the Agreement. Starting Date:, 2011 [COUNTERPARTY] By: FTI CONSULTING, INC., IN ITS CAPACITY AS TRUSTEE FOR EACH OF THE LIQUIDATING TRUSTS AC Liquidating Trust Advanta Liquidating Trust
Its: Trust Trust AMCUSA Trust Advanta Auto Finance Advanta Finance Trust ASSC Trust Advan tennis Liquidating By: Name: Andrew Scruton Title: Senior Managing Director, FTI Consulting, Inc.
IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE -----------------------------------------------------x In re: : Chapter 11 : ADVANTA CORP., et al., : Case No. 09-13931 (KJC) : Debtors. : (Jointly Administered) -----------------------------------------------------x CERTIFICATE OF SERVICE I, Howard A. Cohen, hereby certify that on this 1st day of November 2011, I caused a true and correct copy of the Motion of the Trustee Pursuant to 11 U.S.C. 105(a), 108, 363 and 546(a) for the Entry of an Order Approving Tolling Agreements to be filed with the CM/ECF system for the United States Bankruptcy Court for the District of Delaware, and thereby served on all registered parties. Dated: November 1, 2011 DRINKER BIDDLE & REATH LLP /s/ Howard A. Cohen Howard A. Cohen (DE 4082) 1100 N. Market Street, Suite 1000 Wilmington, DE 19801-1254 Telephone: (302) 467-4200 Facsimile: (302) 467-4201 Counsel for FTI Consulting, Inc., as Trustee WM01/ 7880487.5