Opinion
Case No. 03-32094 (DOT)
August 26, 2003
Michael C. Shepherd, VSB No. 47401, Hunton Williams LLP, Richmond, Virginia, Counsel to the Debtors and Debtors in Possession
Neil E. McCullagh, Cantor Arkema, P.C., Richmond, Virginia, Counsel to Brandywine Grande B.L.P.
James E. Clarke, VSB No. 40685, Draper Goldberg, PLLC, Leesburg, Virginia, Shawn M. Christianson (CA No. 114707), Craig C. Chiang (CA No. 209602), Buchalter, Nemer, Fields Younger, San Francisco, CA, Counsel to Oracle Corporation
Russell R. Johnson, III, VSB No. 31468, Richmond, Virginia, Counsel to Virginia Electric and Power Company
Erin McDonald, VSB No. 45632, LeClair Ryan, a Professional Corporation Richmond, Virginia, Counsel to MCI WORLDCOM Network Services, Inc., formerly known as MCI Telecommunications Corporation
This stipulation and agreed order (this "Stipulation and Agreed Order") is entered into by and between (a) Brandywine Grande B, L.P. ("Brandywine B") and (b) Richmond 20 MHZ, LLC ("Richmond 20"), a debtor in these jointly administered bankruptcy cases (the "Cases"), pending in the United States Bankruptcy Court for the Eastern District of Virginia (the "Bankruptcy Court"), by and through their respective counsel. Brandywine B and Richmond 20 are together referred to herein as the "Parties."
RECITALS
1. On March 4, 2003 (the "Petition Date"), NTELOS Inc. ("NTELOS") and its 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, Brandywine B and Richmond 20 were parties to an Office Lease, dated July 28, 1995 (the "Old Lease"). Brandywine B and Richmond 20 terminated the Lease by agreement prior to the Petition Date. Brandywine Grande C, L.P. ("Brandywine C") and Richmond 20 entered into a Lease in September 2002 (the "New Lease") prior to the Petition Date for a portion of the premises demised under the Old Lease.
3. 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, Richmond 20 proposes to assume the New Lease pursuant to section 365 of the Bankruptcy Code on the Effective Date (as defined in the Plan) of the Plan.
4. On June 4, 2003, Brandywine B filed a priority proof of claim numbered 446 ("Claim No. 446") pursuant to which it claimed $25,399.09 as a termination fee under the Old Lease.
5. In their First Omnibus Objection to Claims Under 11 U.S.C. § 102(1) and 105(a) and Bankruptcy Rule 3007 (the "First Objection") filed on July 8, 2003, the Debtors objected to Claim No. 446 on the basis that it would be rendered moot because any amount that must be paid to cure the defaults under the Old Lease would be paid in full to the extent such amount constitutes a legitimate cure obligation under the Plan and pursuant to applicable law. The Debtors' objection to Claim No. 446 on this basis was in error because the Old Lease was terminated prior to the Petition Date, and Richmond 20 does not propose to assume the Old Lease. On August 6, 2003, Richmond 20 filed a Withdrawal of the objection to Claim No. 446.
In Exhibit D3 to the First Objection, the Debtors mistakenly referred to Claim No. 446 as having been filed by Brandywine C.
6. Brandywine B filed an objection to the assumption of the New Lease by Richmond 20 (the "Assumption Objection") unless Richmond 20 paid the amount of its Claim No. 446 as part of the amounts necessary to cure defaults under the New Lease. In the Assumption Objection, Brandywine B agreed that Richmond was entitled to a credit of $9,846.76 against Claim No. 446 for an overpayment of rent under the Old Lease.
STIPULATION
NOW THEREFORE, the Parties stipulate and agree as follows:
a. Brandywine B's Claim No. 446 shall be allowed as an unsecured, non-priority claim in the amount of $15,552.33.
b. Brandywine hereby withdraws its objection to Richmond 20's assumption of the New Lease.
c. The terms of paragraphs "a" and "b" hereof shall resolve Claim No. 446, the First Objection as it relates to Claim No. 446 and the Assumption Objection.
d. 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.
e. The Bankruptcy Court shall retain jurisdiction over the Parties with respect to the implementation of this Stipulation and Agreed Order.
SO ORDERED:
CERTIFICATION PURSUANT TO LOCAL BANKRUPTCY RULE 9022-1(C)
I hereby certify that this proposed Stipulation and Agreed Order has been endorsed by all necessary parties in accordance with Local Bankruptcy Rule 9022-1(C).
STIPULATION AND AGREED ORDER BETWEEN NTELOS INC. AND ORACLE CORPORATION REGARDING CURE AMOUNT
This stipulation and agreed order (this "Stipulation and Agreed Order") is entered into by and between (a) Oracle Corporation ("Oracle") and (b) NTELOS Inc. ("NTELOS"), a debtor 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. Oracle and NTELOS are collectively referred to herein as the "Parties."
RECITALS
1. On March 4, 2003 (the "Petition Date"), NTELOS and its 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, Oracle and NTELOS entered into certain software licenses and support renewal contracts (the "Agreements").
3. 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, NTELOS proposes to assume the Agreements pursuant to section 365 of the Bankruptcy Code on the Effective Date (as defined in the Plan) of the Plan.
4. On July 30, 2003, Oracle filed its Objection of Oracle Corporation to Assumption of Its Executory Contracts (the "Objection") asserting a cure claim of $34,0005.95 (the "Cure Claim").
5. On August 5, 2003, NTELOS sent to Oracle a check in the amount of $34,005.95 on accounts of its Cure Claim (the "Payment"). To date, Oracle has been unable to confirm receipt of the Payment.
STIPULATION
NOW THEREFORE, the Parties stipulate and agree as follows:
a. Contingent upon entry of an order confirming the Plan and payment of the amount set forth in paragraph "b", NTELOS will assume the Agreements in accordance with section 365 of the Bankruptcy Code on the Effective Date of the Plan. Assumption of the Agreements will be effective only upon payment of the amount set forth in paragraph "b".
b. In order to cure any monetary defaults with respect to the Agreements as required by section 365(b)(1) of the Bankruptcy Code, NTELOS shall pay to Oracle on, or as soon as practicable after, the Effective Date of the Plan, if not having previously done so, $34.005.95 representing the stipulated-to amount owing with respect to the Agreements.
d. 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.
e. 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.
f. The Bankruptcy Court shall retain jurisdiction over the Parties with respect to the implementation of this Stipulation and Agreed Order.
SO ORDERED:
CERTIFICATION PURSUANT TO LOCAL BANKRUPTCY RULE 9022-1(C)
I hereby certify that this proposed Stipulation and Agreed Order has been endorsed by all necessary parties in accordance with Local Bankruptcy Rule 9022-1(C).
STIPULATION AND AGREED ORDER BETWEEN RICHMOND 20 MHZ, LLC, AND BRANDYWINE GRANDE C, L.P., REGARDING OBJECTIONS TO ASSUMPTION OF LEASE AND CLAIM NUMBER 445This stipulation and agreed order (this "Stipulation and Agreed Order") is entered into by and between (a) Brandywine Grande C, L.P. ("Brandywine C") and (b) Richmond 20 MHZ, LLC ("Richmond 20"), a debtor in these jointly administered bankruptcy cases (the "Cases"), pending in the United States Bankruptcy Court for the Eastern District of Virginia (the "Bankruptcy Court"), by and through their respective counsel. Brandywine C and Richmond 20 are together referred to herein as the "Parties."
RECITALS
1. On March 4, 2003 (the "Petition Date"), NTELOS Inc. ("NTELOS") and its 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. Brandywine C and Richmond 20 are parties to a Lease, dated September 30, 2002 (the "Lease"), of office space in Richmond, Virginia.
3. 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, Richmond 20 proposes to assume the Lease pursuant to section 365 of the Bankruptcy Code on the Effective Date (as defined in the Plan) of the Plan.
4. On June 5, 2003, Brandywine C filed a priority proof of claim numbered 445 ("Claim No. 445") pursuant to which it claimed $9,176.31 for Richmond 20's alleged prepetition defaults under the Lease.
5. In their Second Omnibus Objection to Claims Under 11 U.S.C. § 102(1) and 105(a) and Bankruptcy Rule 3007 (the "Second Objection") filed on July 8, 2003, the Debtors objected to Claim No. 445 on the basis that it would be rendered moot because any amount that must be paid to cure the defaults under the Lease would be paid in full to the extent such amount constitutes a legitimate cure obligation under the Plan and pursuant to applicable law.
6. Brandywine C filed an objection to the assumption of the Lease by Richmond 20 (the "Assumption Objection") unless Richmond 20 paid the amount of its Claim No. 445 as part of the amounts necessary to cure defaults under the Lease and delivered an insurance certificate to it.
STIPULATION
NOW THEREFORE, the Parties stipulate and agree as follows:
a. Contingent upon entry of an order confirming the Plan, Richmond 20 will assume the Lease in accordance with Section 365 of the Bankruptcy Code on the Effective Date of the Plan.
b. In order to cure any monetary defaults, including, but not limited to, any unpaid amounts listed in Claim No. 445 (except for the estimated legal fees claimed), with respect to the Lease as required by Section 365(b)(1) of the Bankruptcy Code, NTELOS, on behalf of Richmond 20 and itself, shall pay to Brandywine C on, or as soon as practicable after, the Effective Date of the Plan $4,176.31 representing the stipulated-to amount owing with respect to the Lease.
c. In order to cure the non-monetary default with respect to the Lease, NTELOS, on behalf of Richmond 20 and itself, shall deliver to Brandywine C on, or as soon as practicable after, the Effective Date of the Plan an insurance certificate reflecting that the insurance coverage required of Richmond 20 under the Lease is currently in place.
d. The terms of paragraphs "a," "b" and "c" hereof shall resolve Claim No. 445, the Second Objection as it relates to Claim No. 445 and the Assumption Objection; provided that the Lease is assumed as set forth in paragraph "a," payment of the amount set forth in paragraph "b" hereof is timely made and the certificate described in paragraph "c" is timely delivered.
e. In the event that 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.
g. The Bankruptcy Court shall retain jurisdiction over the Parties with respect to the implementation of this Stipulation and Agreed Order.
SO ORDERED:
CERTIFICATION PURSUANT TO LOCAL BANKRUPTCY RULE 9022-1(C)
I hereby certify that this proposed Stipulation and Agreed Order has been endorsed by all necessary parties in accordance with Local Bankruptcy Rule 9022-1(C).
STIPULATION AND AGREED ORDER BETWEEN NTELOS NETWORK INC., NTELOS TELEPHONE COMPANY, NTELOS CABLE OF VIRGINIA INC. AND VIRGINIA ELECTRIC POWER COMPANY D/B/A DOMINION VIRGINIA POWER REGARDING CURE AMOUNTSThis 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 the 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.
g. The Bankruptcy Court shall retain jurisdiction over the Parties with respect to the implementation of this Stipulation and Agreed Order.
SO ORDERED:
CERTIFICATION PURSUANT TO LOCAL BANKRUPTCY RULE 9022-1(C)
I hereby certify that this proposed Stipulation and Agreed Order has been endorsed by all necessary parties in accordance with Local Bankruptcy Rule 9022-1(C).
STIPULATION AND AGREED ORDER BETWEEN NTELOS INC., NTELOS COMMUNICATIONS SERVICES INC., MCI WORLDCOM NETWORK SERVICES, INC., FORMERLY KNOWN AS MCI TELECOMMUNICATIONS CORPORATION REGARDING CURE AMOUNTS AND OBJECTION TO CLAIM NUMBER 228This stipulation and agreed order (this "Stipulation and Agreed Order") is entered into by and between (a) MCI WORLDCOM Network Services, Inc. ("MCI Network"), formerly known as MCI Telecommunications Corporation ("MCI Telecom", and together with MCI Network, "MCI") and (b) NTELOS Inc. ("NTELOS") and NTELOS Communications Services Inc., formerly known as CFW Communications Services, Inc. ("NTELOS Communications"), 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. MCI, NTELOS and NTELOS Communications are collectively referred to herein as the "Parties."
RECITALS
1. On March 4, 2003 (the "Petition Date"), NTELOS, NTELOS Communications 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, NTELOS and MCI Network entered into that certain Telecommunications Services Agreement dated May 17, 2002 (the "Telecommunications Agreement").
3. Prior to the Petition Date, NTELOS Communications and MCI Telecom entered into that certain Carrier Agreement dated February 9, 1996 (the "Carrier Agreement").
4. Prior to the Petition Date, NTELOS and MCI Network entered into that certain Digital Services Agreement dated November 1, 2001 (the "Digital Agreement", and together with the Telecommunications Agreement and the Carrier Agreement, the "Agreements").
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) NTELOS proposes to assume the Telecommunications Agreement, (ii) NTELOS Communications proposes to assume the Carrier Agreement and (iii) NTELOS proposes to assume the Digital Agreement, pursuant to section 365 of the Bankruptcy Code on the Effective Date (as defined in the Plan) of the Plan.
6. On July 8, 2003, the Debtors filed the Debtors' First Omnibus Objection to Claims Under Section 102(1) and 105(a) and Bankruptcy Rule 3007, pursuant to which the Debtors objected to, and sought the reclassification and disallowance of, MCI WORLDCOM Network Services Inc.'s claim number 228 in the amount of $49,070.64 (the "Claim") on the bases that (i) the Claim was filed against the incorrect Debtor entity or entities and (ii) the Claim will be rendered moot because any amounts that must be paid to cure the defaults, if any, under the Agreements will be paid in full to the extent the Claim constitutes legitimate cure obligations under the Plan and pursuant to applicable law (the "Objection").
STIPULATION
NOW THEREFORE, the Parties stipulate and agree as follows:
a. Contingent upon entry of an order confirming the Plan, (i) NTELOS will assume the Telecommunications Agreement, (ii) NTELOS Communications will assume the Carrier Agreement and (iii) NTELOS will assume the Digital Agreement, in accordance with section 365 of the Bankruptcy Code on the Effective Date of the Plan.
b. In order to cure any monetary defaults with respect to the Agreements as required by section 365(b)(1) of the Bankruptcy Code, NTELOS shall pay, on behalf of NTELOS Communications and itself, to MCI on, or as soon as practicable after, the Effective Date of the Plan $82,888.58 representing the aggregated stipulated-to amount owing with respect to the Agreements.
c. Any amounts owed to MCI under the terms of the Agreements for periods after the date of execution hereof, if any, shall be paid in the ordinary course by NTELOS, on behalf of NTELOS Communications or itself, in the ordinary course in accordance with the terms of the Agreements.
d. Pursuant to the terms of the Objection and as a result thereof, the Claim will be disallowed on the bases set forth in the Objection only in the event that the Agreements are assumed and the Plan is confirmed.
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.
g. The Bankruptcy Court shall retain jurisdiction over the Parties with respect to the implementation of this Stipulation and Agreed Order.
SO ORDERED:
CERTIFICATION PURSUANT TO LOCAL BANKRUPTCY RULE 9022-1(C)
I hereby certify that this proposed Stipulation and Agreed Order has been endorsed by all necessary parties in accordance with Local Bankruptcy Rule 9022-1(C).