Opinion
Case No. 03-32094 (DOT), (Jointly Administered)
August 8, 2003
STIPULATION AND AGREED ORDER BETWEEN NTELOS INC. AND LUCENT TECHNOLOGIES, INC. REGARDING CURE AMOUNT
This stipulation and agreed order (this "Stipulation and Agreed Order") is entered into by and between (a) Lucent Technologies, Inc. ("Lucent") and (b) NTELOS Inc. and its affiliated debtors (collectively, "NTELOS" or the "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. Lucent and NTELOS are collectively referred to herein as the "Parties".
RECITALS
1. On March 4, 2003 (the "Petition Date"), 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, Lucent and NTELOS Inc. entered into that certain General Agreement for Purchase of Personal Communications Services Systems last executed on July 12, 2000 (as amended and supplemented, the "Agreement").
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 Agreement pursuant to section 365 of the Bankruptcy Code on the Effective Date (as defined in the Plan) of the Plan.
4. On August 1, 2003, Lucent filed its Limited Objection to Assumption of Executory Contract and to Plan of Reorganization (the "Limited Objection") asserting that NTELOS is in default of the Agreement in the amount of $2,416,419.10 arising from unpaid pre-petition accounts receivable totaling $512,673.75 (the "Accounts Receivable") and $1,903,745.35 in unpaid charges for the use of intellectual property (the "IP Charges", and together with the Accounts Receivable, the "Cure Claim").
5. NTELOS disputes the amount of the Cure Claim.
6. Subsequent to the filing of the Limited Objection, the Parties have negotiated in good faith to resolve the dispute with respect to the Cure Claim (the "Dispute").
STIPULATION
NOW THEREFORE, the Parties stipulate and agree as follows:
a. Lucent hereby waives its objection to confirmation of the Plan.
b. Contingent upon entry of an order confirming the Plan, NTELOS shall be deemed to have assumed the Agreement in accordance with section 365 of the Bankruptcy Code upon the occurrence of the Effective Date of the Plan.
c. The amount necessary to cure any monetary default with respect to the Agreement in accordance with section 365(b)(1) of the Bankruptcy Code (the "Cure Amount"), as agreed to by the Parties or determined by the Bankruptcy Court in accordance with paragraph "b" above, shall be paid by NTELOS to Lucent on the latest of three (3) business days after (i) the Effective Date, (ii) the execution by the Parties of a letter agreement setting forth the consensual resolution of the Dispute, or (iii) the entry of an order by the Bankruptcy Court fixing the Cure Amount.
d. Either of the Parties may request, prior to or after the Effective Date of the Plan, a hearing before the Bankruptcy Court to determine the Cure Amount on such shortened notice as is approved by the Bankruptcy Court. The Parties hereby waive any objection to such hearing being conducted on shortened notice.
e. The respective rights of the Parties, including, but not limited to, those conferred by the terms of the Agreement, shall be preserved.
f. NTELOS acknowledges that, in accordance with section 1.11 of the Agreement, NTELOS agreed to pay reasonable attorneys fees and other costs incurred by Lucent in collection of any amounts invoiced under the Agreement. However, in the event that the Parties agree or the Bankruptcy Court determines that the Cure Amount does not exceed the amount of the Accounts Receivable, NTELOS shall have no obligation to pay any attorneys fees or other costs incurred by Lucent with respect to the collection of any amounts invoiced under the Agreement which comprise the Cure Claim.
g. 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.
h. 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.
i. The Bankruptcy Court shall retain jurisdiction over the Parties with respect to the implementation of this Stipulation and Agreed Order.SO ORDERED.