Opinion
Case No. 02-13533 (AJG), (Jointly Administered).
July 8, 2003.
Peter A. Zisser, Esq., Holland of Knight LLP, New York, New York, Attorney for Lightbridge, Inc.
Peter A. Frazier, Joseph M. DiOrio, Attorneys for Lightbridge, Inc.
Adam P. Strochak, Esq., Marcia L. Goldstein, Esq., Lori R. Fife, Esq., Weil, Gotshal Manges LLP, New York, NY, Attorneys for Debtors and Debtors In Possession.
Alfredo R. Perez, Esq., Weil, Gotshal Manges LLP, Houston, TX, Attorneys for Debtors and Debtors In Possession.
STIPULATION AND ORDER
WorldCom, Inc. and certain of its affiliates ("Debtors"), as debtors-in-possession, and Lightbridge, Inc. ("Lightbridge") respectfully submit this Stipulation and Order ("Stipulation"):
RECITALS
WHEREAS, the Debtors filed voluntary petitions for relief under chapter 11 title 11 of the United States Code, with the United States Bankruptcy Court for the Southern District of New York ("Bankruptcy Court");
WHEREAS, the Debtors' chapter 11 cases have been procedurally consolidated, and the Debtors continue to manage their properties and operate their businesses as debtors-in-possession pursuant to Bankruptcy Code sections 1107(a) and 1108;
WHEREAS, on September 30, 2002, Lightbridge filed a Motion for Relief From the Automatic Stay to Permit Setoff of Mutual Obligations and on January 3, 2003, filed an Amended and Restated Motion for Relief From the Automatic Stay to Permit Setoff of Mutual Obligations (collectively the "Lightbridge Motion");
WHEREAS, on January 9, 2003, the Debtors filed their Objection to the Lightbridge Motion ("Debtors Objection");
WHEREAS, Lightbridge owes MCI WORLDCOM Communications, Inc. ("MCI Communications") a pre-petition debt of $467,769.67 under the following accounts 171 X23, 85813 FE, 23985 FE, 172 X23, 22368 FE, 101542 FE, 60000285 X11, 60724 FE, 9150021103 X23, 28150 X34; 35954 XII, 10000903 X34 (which comprises earlier accounts: 25293, 10239, and 2337) and 00030271957 Mega (collectively the "MCI Communications Accounts") for prepetition goods and/or services provided to Lightbridge ("Lightbridge Prepetition Debt");
WHEREAS, Lightbridge owes MCI Communications a postpetition debt of $471,467.33 under the MCI Communications Accounts for postpetition goods and/or services provided to Lightbridge ("Lightbridge Postpetition Debt");
WHEREAS, Lightbridge is owed a prepetition debt of $2,009,927.37 for prepetition goods and/or services Lightbridge provided under the Product and Service Agreement, as amended ("Lightbridge Prepetition Claim");
WHEREAS, the Debtors and Lightbridge wish to resolve the issues raised by the Lightbridge Motion and the Debtors Objection without the cost and expense of further litigation;
WHEREAS, the Debtors and Lightbridge have negotiated this Stipulation in good faith and at arms' length and, therefore, desire that it shall be binding upon each of them, their successors, heirs, and assigns; and
WHEREAS, the Debtors and Lightbridge believe that this Stipulation is in their respective best interests.
NOW, THEREFORE, in consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Lightbridge and the Debtors stipulate and agree as follows:
STIPULATION
1. Setoff. The Debtors agree to lift the automatic stay only to the extent necessary and solely to allow Lightbridge to setoff $128,636.66 ("Setoff Amount") of the Lightbridge Prepetition Debt against the Lightbridge Prepetition Claim. As a result of this setoff, Lightbridge's total remaining pre-petition claim equals $1,881,290.71 ("Unsecured Claim").
2. Unsecured Claim. The Unsecured Claim shall be and is an allowed, prepetition, non-priority, unsecured claim. The Unsecured Claim shall solely be allowed in either the WorldCom Wireless, Inc. bankruptcy (Case No. 02-42316) or the MCI Wireless, Inc. bankruptcy (Case No. 02-42220). Lightbridge, in its sole discretion, shall elect whether the Unsecured Claim is allowed in either the WorldCom Wireless, Inc. or the MCI Wireless, Inc. bankruptcy. The Unsecured Claim may only be allowed in one of these two bankruptcy cases and, under no circumstances, may the Unsecured Claim be presented in both the WorldCom Wireless, Inc. and the MCI Wireless, Inc. bankruptcies. Lightbridge must elect whether to have the Unsecured Claim allowed in either the WorldCom Wireless, Inc. bankruptcy or the MCI Wireless, Inc. bankruptcy within sixty (60) days after the order confirming a plan(s) for each of WorldCom Wireless, Inc. and MCI Wireless, Inc. has become final and no longer subject to appeal The Unsecured Claim is subject to and governed by the orders, procedures, laws, and rules applicable to the Debtors' chapter 11 cases.
3. Lightbridge's Pre-Petition Claim(s). Aside from the Setoff Amount and Unsecured Claim, Lightbridge has no claim(s) of any kind whatsoever related to or arising from the MCI Communications Accounts, the original and/or amended Product and Service Agreement, the Lightbridge Motion, and/or the Debtors' Objection against any of the Debtors. This Stipulation and Order does not effect the rights of any party relative to the Lightbridge Proof of Claim filed against SkyTel Corp. (Case No. 02-42285) in the amount of $17,677.78.
4. Lightbridge's Payment. Lightbridge shall pay MCI WORLDCOM Communications, Inc. $810,600.34 within ten (10) days of execution, and approval by the Bankruptcy Court, of this Stipulation. This payment of $810,600.34, combined with the setoff provided for in Section 1 above, will satisfy all amounts Lightbridge owed to the Debtors under the MCI Communication Accounts as of June 1, 2003, including, without limitation, any finance or interest charges. Lightbridge shall also pay, in accordance with the terms of the parties' agreements and the applicable invoices, all additional amounts that are or become due and owing by it to any of the Debtors, and that are not captured by the above-referenced $810,600.34 payment.
5. Entire Agreement. This Stipulation is the entire agreement between the parties with respect to the subject matter of the Lightbridge Motion and/or the Debtors Objection. All representations, warranties, inducements, and/or statements of intention made by the parties hereto are embodied in this Stipulation, and no party hereto relied upon, shall be bound by, or shall be liable for any alleged representation, warranty, inducement, or statement of intention that is not expressly set forth in this Stipulation.
6. Counterparts. This Stipulation may be executed in any number of counterparts, and all such counterparts, taken together, shall be deemed to constitute one and the same instrument.
7. Modifications. This Stipulation may not be modified, except in a written instrument signed by each of the parties hereto, which modification, if material in the discretion of the Debtors or Lightbridge, shall be subject to the approval of the Bankruptcy Court. Should the parties hereto seek to modify this Stipulation, they shall provide notice to counsel for the Official Committee of Unsecured Creditors. To the extent the Official Committee of Unsecured Creditors objects to any such modification, the parties hereto shall seek Bankruptcy Court approval of such modification.
8. Authority. Both the Debtors and Lightbridge represent that they are authorized to execute this Stipulation, subject to this Bankruptcy Court's approval.
9. Effective Date. This Stipulation shall be binding on the parties from the date of its execution, but is expressly subject to and contingent upon its approval by the Bankruptcy Court. If the Bankruptcy Court does not approve this Stipulation, this Stipulation shall be null and void.
10. Lightbridge's Motion If the Bankruptcy Court does not approve this Stipulation, a hearing shall be set for the Lightbridge Motion on the Tuesday following the expiration of twenty-one (21) days from the date of the Court's denial of this Stipulation, and objections to the Lightbridge Motion shall be due on or before 5:00 p.m. (EST) three (3) business days before the hearing.
11. Retention of Jurisdiction The Bankruptcy Court shall retain exclusive jurisdiction over any and all disputes arising out of or otherwise relating to this Stipulation, the Lightbridge Motion, and/or the Debtors Objection.
So ordered.