Opinion
Case No. 02-13533 (AJG), (Jointly Administered).
October 12, 2005
Mark A. Shaiken, Esq., Mark S. Carder, Esq., Mark M. Iba, Esq., Blakely J. Pryor, STINSON MORRISON HECKER LLP, Attorneys for Debtors and Debtors in Possession, Kansas City, MO.
Carol A. Grissom, Esq., Vice President General Counsel, Dallas, Texas, Attorney for OpTel, Inc.
AGREED ORDER AND JOINT STIPULATION RESOLVING THE DEBTORS' OBJECTION TO OPTEL, INC.'S CLAIM NUMBER 21859
This Joint Stipulation is made and entered into by and among the following: MCI, Inc. (successor to WorldCom, Inc.) and certain of its direct and indirect subsidiaries, as debtors and debtors in possession (collectively, the "Reorganized Debtors") and OpTel, Inc. (the "Claimant") (the Claimant and the Reorganized Debtors are hereinafter collectively referred to as the "Parties") with reference to the following:
WHEREAS, on July 21, 2002 (the "Commencement Date") and November 8, 2002, WorldCom, Inc. and certain of its direct and indirect domestic subsidiaries commenced cases (the "Bankruptcy Cases") under Chapter 11 of Title 11 of the United States Code (the "Bankruptcy Code"). By Orders dated July 22, 2002 and November 12, 2002, the Debtors' Chapter 11 cases were consolidated for procedural purposes only and are being jointly administered; and
WHEREAS, on October 31, 2003, the Debtors' Modified Second Amended Joint Plan of Reorganization (the "Plan") was confirmed; and
WHEREAS, the Plan became effective on April 20, 2004; and
WHEREAS, on or about January 21, 2003, the Claimant filed Claim No. 21859 against Worldcom, Inc., Case No. 02-13533, as an unsecured nonpriority claim in the amount of $58,930.20; and
WHEREAS, on or about October 15, 2004, the Reorganized Debtors filed Debtors' Seventy-Sixth Omnibus Objection to Proofs of Claims [Domestic Telco] (Docket No. 13009; the "Omnibus Objection"); and
WHEREAS, the Reorganized Debtors' Omnibus Objection objected to Claim 21859 because the Reorganized Debtors asserted that "[t]he Debtors' records disagree with the amount claimed and a lesser or no amount is due to the claimant," and that "[t]he claim should be reduced or expunged and offset against amounts receivable owed by the claimant to the Debtor;" and
WHEREAS, the Claimant's deadline to respond to the Omnibus Debtors' Seventy-Sixth Omnibus Objection To Proofs Of Claim [Domestic Telco Claims] has been extended indefinitely, and the Claimant has not filed any response to the Omnibus Objection; and
WHEREAS, the Omnibus Objection is currently pending before the Court and scheduled for a hearing on September 13th, 2005 at 10:00 a.m.; and WHEREAS, the parties hereto have conferred and reached an agreement to resolve Claim 21859 as set forth below;
NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED, by and between the Reorganized Debtors and the Claimant, through their undersigned officers, agents, or counsel, and the Court hereby ORDERS, that upon entry of this Agreed Order and Joint Stipulation:
1. Claim 21859 is hereby expunged and disallowed in its entirety.
2. The Reorganized Debtors' agreements under this Agreed Order and Joint Stipulation shall be given in full and complete satisfaction of all the Claimant's claims or proofs of claim against MCI, Inc., its subsidiaries and affiliates (collectively "MCI"), that are associated or related to the matters asserted in Claim 21859 and any related scheduled claims.
3. In exchange for the consideration provided to Claimant, the Claimant, its predecessors, successors, parents, assigns, heirs, agents, and attorneys, agree to release and discharge MCI, its predecessors, successors and assigns from all causes of action, claims, suits, debts, damages, judgments, and demands whatsoever, whether now known or unknown, whether before a local, state or federal court or state or federal administrative agency or commission that arise out of or relate to any acts or omissions of MCI concerning the matters asserted in Claim Nos. 21859 and any related scheduled claims. The execution of this Agreement shall finally settle and resolve all claims that the Claimant asserted against MCI in Claim Nos. 21859 and any related scheduled claims. This Agreement is the result of a compromise and is not to be construed as an admission by MCI of any liability or wrongdoing. Indeed, MCI expressly deny any such liability, wrongdoing or responsibility.
4. In exchange for the consideration provided to MCI, MCI, its predecessors, successors, parents, assigns, heirs, agents, and attorneys, agree to release and discharge the Claimant, its predecessors, successors and assigns from all causes of action, claims, suits, debts, damages, judgments, and demands whatsoever, whether now known or unknown, whether before a local, state or federal court or state or federal administrative agency or commission that arise out of or relate to the rate or charges that the Claimant billed MCI in the invoices referenced in Exhibit A to this Stipulation. The execution of this Agreement shall finally settle and resolve all rate or overbilling disputes that MCI has asserted, or could assert, with regard to the rate or charges that the Claimant billed MCI in the invoices referenced in Exhibit A to this Stipulation. This Agreement is the result of a compromise and is not to be construed as an admission by the Claimant of any liability or wrongdoing. Indeed, the Claimant expressly deny any such liability, wrongdoing or responsibility.
5. This Agreed Order and Joint Stipulation shall be binding upon the Parties hereto, their predecessors, successors, parents, subsidiaries, affiliates, assigns, and their past, present and future agents, directors, officers, employees, and shareholders. Each of the signatories to this Agreed Order and Joint Stipulation represents and warrants that he or she is authorized to execute this Agreed Order and Joint Stipulation and to bind the Parties hereto, and that each such party has full knowledge and has consented to this Agreed Order and Joint Stipulation.
6. The Claimant warrants and represents that it owns the claims, liabilities, and causes of action settled or released herein and that it has not assigned, transferred, conveyed, or in any way encumbered any such claim, liability, or cause of action. In the event that any third-party asserts a right to, or an interest in, a claim, liability, or cause of action settled or released herein, including without limitation Claim 21859 or any scheduled claims related to Claim 21859, the Claimant agrees to indemnify and hold MCI harmless.
7. This Agreed Order and Joint Stipulation shall be governed by and construed in accordance with the Bankruptcy Code and the internal laws of the State of New York, without regard to the conflict of laws principles thereof.
8. This Agreed Order and Joint Stipulation may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument and it shall constitute sufficient proof of this Agreed Order and Joint Stipulation to present any copy, copies or facsimiles signed by the parties hereto.
9. This Agreed Order and Joint Stipulation contains the entire agreement of the Parties and supercedes all prior agreements, representations, and warranties, oral or written, regarding the subject matter hereof.
10. The parties each shall cooperate and execute such additional documents as may be reasonably requested by the other in order to effectuate the agreements and undertakings set forth herein.
11. The identification of proofs of claim herein is without prejudice to the Reorganized Debtor's rights to object to any other proof of claim filed by or on behalf of the Claimant on the ground that such other proof of claim has been satisfied by payment amounts described herein.
12. The Court shall retain jurisdiction to interpret and enforce this Agreed Order and Joint Stipulation.
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SO ORDERED.