Opinion
Case No. 02-13533 (AJG) Jointly Administered.
June 15, 2005
Dale E. Barney (DB-6778), GIBBONS, DEL DEO, DOLAN, GRIFFINGER VECCHIONE, PC, New York, New York, Darrell W. Clark, Steven K. White, STINSON MORRISON HECKER LLP, Washington, DC, and Marcia L. Goldstein, Lori R. Fife, Alfredo R. Pérez, Weil, Gotshal Manges LLP, New York, New York, Attorneys for Reorganized Debtors.
GLT Liquidating Trust ("GLT" or the "Trust") as successor in interest to Genuity Solutions Inc. and certain of its affiliates ("Genuity"), and MCI, Inc. as successor in interest to Worldcom, Inc. and certain of its affiliates and subsidiaries ("Debtors") ("Debtors" and GLT, each a "Party" and, collectively, the "Parties"), by their respective counsel, hereby stipulate and agree as follows:
WHEREAS, on July 21, 2002 (the "Petition Date"), the Debtors commenced their respective reorganization cases (the "Chapter 11 Cases") by filing voluntary petitions for relief under chapter 11 of title 11 of the United States Code, 11 U.S.C. §§ 101- 1330 (the "Bankruptcy Code") in the United States Bankruptcy Court for the Southern District of New York (the "Bankruptcy Court");
WHEREAS, Genuity filed various claims against the Debtors in the Chapter 11 Cases (collectively, the "GLT Claims");
WHEREAS, on November 21, 2003, an Order [Docket No. 1830] was entered in the Genuity Bankruptcy (as defined below) confirming Genuity's Joint Consolidated Plan of Liquidation, As Modified, pursuant to which GLT, inter alia, became the successor in interest to the GLT Claims.
WHEREAS, on October 31, 2003, the Bankruptcy Court confirmed the Debtors' Second Amended Joint Plan of Reorganization, As Modified (the "Plan"), and the Plan became effective on April 20, 2004;
WHEREAS, the confirmation of the Plan resulted in an October 17, 2004 deadline by which the Debtors could file objections to certain claims filed in the Chapter 11 Cases (the "Objection Deadline");
WHEREAS, the Debtors filed their (i) Forty-Second Omnibus Objection to Proofs of Claims [Customer Claims] dated as of October 8, 2004, (ii) Fifty-First Omnibus Objection to Proofs of Claims [Preference Claims] dated as of October 12, 2004 and (iii) Seventy-Sixth Omnibus Objection to Proofs of Claims [Domestic Telco Claims] dated as of October 15, 2004 (collectively, "Objections") in order to satisfy the Objection Deadline, all objecting to, inter alia, certain GLT Claims, some of which the Debtors have characterized in the Objections as preference claims arising in connection with certain chapter 11 bankruptcy cases captioned Genuity, Inc., Case No. 02-43558 (PCB) ("Genuity Bankruptcy") and commenced in the United States Bankruptcy Court for the Southern District of New York on November 27, 2002;
WHEREAS, the foregoing Objections (i) set respective response deadlines of June 2, 2005, November 16, 2004, and November 19, 2004 and (ii) established respective hearing dates of December 14, 2004 and December 7, 2004 ("Hearings"), which dates have been extended consensually from time to time;
WHEREAS, the Parties are still in the process of investigating the merits of the GLT Claims and wish to continue negotiations with respect to the validity, if any, of such claims; and
WHEREAS, the Parties desire to avoid the costs and uncertainties of litigation that would arise if GLT filed responses to the Objections by the above-stated deadlines.
NOW THEREFORE, for and in consideration of the mutual promises, covenants, and obligations set forth below, and for good and valuable consideration as stated herein, the sufficiency of which is hereby acknowledged, the Parties agree as follows:
1. Court Filing: Promptly after execution of this Stipulation, the Debtors will file this Stipulation with the Bankruptcy Court and seek its approval by the Bankruptcy Court.
2. Response Deadline: As of the Stipulation Effective Date (as defined below), GLT shall have until August 1, 2005 to file responses to the Objections as they pertain to the GLT Claims only, and the Hearings on the Objections are hereby adjourned until a date to be determined by agreement of the parties and further Order of the Bankruptcy Court.
3. Entire Agreement: The Parties acknowledge that no promise, inducement, or agreement not stated here has been made to them in connection with this Stipulation, and that this Stipulation constitutes the entire agreement between them with respect to the subject matter hereof. The Parties understand and agree that this Stipulation may not be altered, amended, modified, or otherwise changed in any respect whatsoever except by a writing duly executed by all Parties. The Parties agree and acknowledge that they will make no claim at any time or place that this Stipulation has been orally altered or modified or otherwise changed by oral communication of any kind or character.
4. Counterparts: This Stipulation may be executed simultaneously or in one or more counterparts, each of which shall be an original, but all of which together shall constitute one and the same instrument. A facsimile or PDF copy of a signature page is the equivalent of an original signature page.
5. Choice of Law: This Stipulation shall be governed by, construed, and enforced in accordance with the laws of the State of New York without giving effect to the provisions, policies, or principles thereof relating to choice of law or conflict of laws.
6. Authority: Each of the representatives signing this Stipulation represents that he or she has the authority to execute this Stipulation on behalf of the Party for whom executed and to bind that Party to all representations and terms set forth herein.
7. Stipulation Effective Date: This Stipulation shall become effective (the "Stipulation Effective Date") on the date on which an order entered by the Bankruptcy Court approving this Stipulation has become a final, non-appealable order, provided however, that in the event that the Bankruptcy Court declines to approve this Stipulation, the Parties agree that the date by which GLT must file responses to the Objections shall be tolled until 10 days after the Debtors have provided GLT written notice of such disapproval (the "Tolling Period") and that the Debtors shall not in such instance oppose GLT's filings of responses to the Objections as they pertain to the GLT Claims on the basis such responses were untimely filed so long as GLT files such responses by the due date as extended by the Tolling Period.
8. The Parties hereto agree that except as otherwise expressly provided herein, this Stipulation and Consent Order shall preserve, and shall in no way affect, any and all rights, claims or defenses available to GLT or the Debtors as of the date of this Stipulation and Consent Order.
9. This Stipulation and Consent Order shall inure only to the benefit of GLT and the Debtors.
10. This Stipulation, as so ordered, is without prejudice to the Debtors' right to seek further extensions of the deadline described herein pursuant to Bankruptcy Rule 9006(b). IN WITNESS WHEREOF, this Stipulation is executed as of the 27th day of May, 2005.
SO ORDERED.