Opinion
Case No. 03-32094 (DOT), (Jointly Administered)
August 26, 2003
Michael C. Shepherd, Hunton Williams LLP, Richmond, Virginia, Counsel to the Debtors and Debtors in Possession
Russell R. Johnson, Richmond, Virginia, Counsel to Virginia Electric and Power Company
This stipulation and agreed order (this "Stipulation and Agreed Order") is entered into by and between (a) Virginia Electric and Power Company d/b/a Dominion Virginia Power ("Virginia Power") and (b) NTELOS Network Inc. ("Network"), NTELOS Telephone Inc. ("Telephone") and NTELOS Cable of Virginia Inc. ("Cable"), debtors in this jointly administered bankruptcy case (this "Bankruptcy Case") pending in the United States Bankruptcy Court for the Eastern District of Virginia (the "Bankruptcy Court"), by and through their respective counsel. Dominion, Network, Telephone and Cable are collectively referred to herein as the "Parties."
RECITALS
1. On March 4, 2003 (the "Petition Date"), Network, Telephone and Cable and their debtor affiliates (collectively, the "Debtors") each filed a voluntary petition under chapter 11 of title 11 of the United States Code (the "Bankruptcy Code").
2. Prior to the Petition Date, Virginia Power and Network entered into an agreement pursuant to which Virginia Power agreed to permit Network to attach cables, wires and other appliances to certain of Virginia Power's distribution poles (the "Network Agreement"). On June 10, 2003 Virginia Power filed an unsecured proof of claim in the amount of $2,452.72 against Network, representing Virginia Power's good faith estimate of the prorated annual rent due under the Network Agreement for the period January 1, 2003 through March 3, 2003.
3. Prior to the Petition Date, Virginia Power and Telephone entered into that certain Amended and Restated General Joint Use Agreement, effective January 1, 1992 (the "Telephone Agreement") pursuant to which Virginia Power agreed to permit Telephone to jointly use certain rights of way, wood poles and buried plant routes. On June 10, 2003, Virginia Power filed an unsecured proof of claim in the amount of $169,340.36, which consists of annual rent due and owing for calendar year 2002 ($144,752.40), plus $24,587.96, which represents Virginia Power's good faith estimate of the prorated rent due under the Telephone Agreement for the period January 1, 2003 through March 3, 2003.
4. In May, 1995, Cable was assigned the rights of Sammons Communications of Virginia, Inc. ("Sammons") under a contract entered into between Sammons and Virginia Power, pursuant to which Virginia Power agreed to permit Sammons to attach cables, wires and appliances to certain of its distribution poles (the "Cable Agreement", and together with the Network Agreement and the Telephone Agreement, the "Agreements"). On June 10, 2003, Virginia Power filed an unsecured proof of claim in the amount of $3,444.65 against Cable, which consists of the prorated annual rent due and owing for the period January 1, 2003 through March 3, 2003 under the Cable Agreement.
5. On July 1, 2003, the Debtors filed the Debtors' Joint Plan of Reorganization Under Chapter 11 of the Bankruptcy Code (as it may subsequently be amended, the "Plan"). Pursuant to the terms of the Plan, (i) Network proposes to assume the Network Agreement, (ii) Telephone proposes to assume the Telephone Agreement and (iii) Cable proposes to assume the Cable Agreement, pursuant to section 365 of the Bankruptcy Code on the Effective Date (as defined in the Plan) of the Plan.
STIPULATION
NOW THEREFORE, the Parties stipulate and agree as follows:
a. Contingent upon entry of an order confirming Plan, (i) Network will assume the Network Agreement, (ii) Telephone will assume the Telephone Agreement, and (iii) Cable will assume the Cable Agreement, in accordance with section 365 of the Bankruptcy Code on the Effective Date of the Plan.
b. In order to cure any monetary default with respect to the Network Agreement as required by section 365(b)(1) of the Bankruptcy Code, Network shall pay to Virginia Power on, or as soon as practicable after, the Effective Date of the Plan $2,452.72 representing the stipulated-to amount owing with respect to the Network Agreement.
c. In order to cure any monetary default with respect to the Telephone Agreement as required by section 365(b)(1) of the Bankruptcy Code, Telephone shall pay to Virginia Power on, or as soon as practicable after, the Effective Date of the Plan $169,752.40 representing the stipulated-to amount owing with respect to the Telephone Agreement.
d. In order to cure any monetary default with respect to the Cable Agreement as required by section 365(b)(1) of the Bankruptcy Code, Cable shall pay to Virginia Power on, or as soon as practicable after, the Effective Date of the Plan $3,444.65 representing the stipulated-to amount owing with respect to the Cable Agreement.
e. In the event the Bankruptcy Court declines to enter an order confirming the Plan, this Stipulation and Agreed Order shall be null and void and the Parties shall be restored to their respective positions as if this Stipulation and Agreed Order had not been entered into.
f. This Stipulation and Agreed Order may be executed in counterparts, any of which may be transmitted by facsimile, and each of which shall be deemed an original, but all of which together shall constitute one and the same agreement.
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g. The Bankruptcy Court shall retain jurisdiction over the Parties with respect to the implementation of this Stipulation and Agreed Order.
SO ORDERED.