Case No. 01-41593-293United States Bankruptcy Court, E.D. Missouri
March 25, 2003
Mark L. Prager, Michael J. Small, David B. Goroff, Cynthia A. Fonner, FOLEY LARDNER, Chicago, Illinois, for PLAN ADMINISTRATOR OF THE ESTATE OF BIS ADMINISTRATION, INC.
Michael A. McConnell, Fort Worth, Texas
ORDER APPROVING SETTLEMENT AND COMPROMISE OF ADMINISTRATIVE EXPENSE CLAIMS OF WEBLINK WIRELESS, INC.
DAVID McDONALD, Chief Judge, Bankruptcy
This matter having come on to be heard on the motion of Scott Peltz, the Chapter 11 Plan Administrator (the “Plan Administrator”) for the estate of BIS Administration, Inc. and certain of its subsidiaries (collectively, the “Debtor”) for the entry of an order approving a settlement and compromise between Weblink Wireless, Inc. (“Weblink”) and the Debtor concerning Weblink claims for payment of certain administrative priority expenses under Sections 503 and 507 of the Bankruptcy Code, all as more particularly set forth herein, notice having been served on parties in interest, no objections having been filed or otherwise raised, and the Court being advised in the premises,
IT IS HEREBY ORDERED THAT:
1. The Plan Administrator’s settlement with Weblink, as set forth on the attached Exhibit A, (the “Settlement”) is approved, and all of its terms are incorporated herein by this reference.
2. Without limiting the foregoing, pursuant to the Settlement, Weblink’s claims for payment of administrative priority expenses under sections 503 and 507 of the Bankruptcy Code are withdrawn and the Plan Administrator shall cause payment to be made to Weblink in the amount of $35,000.00.
3. The Plan Administrator is hereby authorized to execute any and all documents and to take any and all actions necessary to effectuate the terms of the Settlement.
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SETTLEMENT AGREEMENT AND RELEASE
This Settlement Agreement and Release (the “Settlement”) is entered into by and between Weblink Wireless, Inc. (“Weblink”) and Scott Peltz, not individually but solely as the Chapter 11 Plan Administrator of the Estate of BIS Administration, Inc. and certain of its subsidiaries (the “Plan Administrator” and, together with Weblink, the “Parties”).
RECITALS
WHEREAS, BIS Administration, Inc. and certain of its subsidiaries (collectively, the “Debtor”) filed a voluntary petition for relief under Chapter 11 of the Bankruptcy Code on February 15, 2001;
WHEREAS, by Motions For Allowance And Payment of Administrative Claims filed with the Bankruptcy Court on May 9, 2002 as Docket No. 1327, Weblink asserted that it provided Debtor with paging and messaging services, and leased related paging equipment to Debtor, pursuant to an Equipment Lease and Service Agreement (the “Lease”);
WHEREAS, Debtor sold the Lease to Reuters America, Inc., effective September 28, 2001;
WHEREAS, Weblink asserted, pursuant to Section 503 of the Bankruptcy Code, a claim against the Debtor in the amount of $247,970.92 for unpaid post-petition services and for unreturned paging equipment;
WHEREAS, Weblink received $199,162.67 from Debtor in the 90-day preference period preceding the filing of Debtor’s petition;
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WHEREAS, the Plan Administrator asserted, pursuant to sections 547 and 550 of the Bankruptcy Code, that the Plan Administrator is entitled to recover $199,162.67 as preferential transfers, (together with Weblink’s administrative claim asserted against Debtor, the “Claims”); and
WHEREAS, Weblink and the Plan Administrator have agreed to compromise and settle the Claims on the terms and conditions provided below.
AGREEMENT
1. Nothing in this Settlement shall be deemed or construed as an admission or concession of wrongdoing or liability on the part of either Party.
2. Pursuant and subject to the terms and provisions of this Settlement, the Plan Administrator and Weblink agree that the Claims shall be compromised and settled for a single payment from the Plan Administrator to Weblink in the amount of Thirty-Five Thousand Dollars (S35,000.00) (the “Settlement Amount”).
3. In consideration of the foregoing, Weblink agrees to withdraw its administrative claim, and any and all additional claims against the Debtor, and the Plan Administrator agrees not to file a complaint against Weblink. The Parties agree that if any of the payments or transfers required by this Settlement are avoided or deemed voidable or void for any reason before payment is received by Weblink, the release and discharge of the Plan Administrator provided for in Paragraph 5, below, shall be revoked and be null and void and all of Weblink’s claims and causes of action against the Debtor, existing at the time of execution of this Agreement, shall be reinstated to full, and, in such event, the Plan Administrator hereby irrevocably waives any defense based upon toe statute of limitations or bar date for said claims and causes of action. The Parties similarly agree that if any of the payments or transfers required by this Settlement are avoided or deemed voidable or void for
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any reason before payment is received by Weblink, the release and discharge of Weblink provided for in Paragraph 5, below, shall be revoked and be null and void and all of the Plan Administrator’s rights in causes of action against Weblink, existing at the time of execution of this Agreement, shall be reinstated in full, and, in such event, Weblink hereby irrevocably “waives any defense based upon the statute of limitations or bar date for said claims and causes of action. Upon Weblink’s receipt of payment under this Settlement, the Claims are deemed to have been withdrawn without leave to re-file.
4. In further consideration of the foregoing, Weblink and the Plan Administrator hereby release and forever discharge each other from all claims raised or which could have been raised by the Parties, known or unknown, including, but not limited to those arising under the Bankruptcy Code.
5. Each Party warrants to the other Party that the individual signing on its behalf has been duly authorized to sign and has the requisite authority to sign this Settlement on behalf of the respective Party.
6. This Settlement may be executed in one or more counterparts, each of which shall constitute one and The same instrument, and shall become effective when one or more counterparts have been signed by each of the Parties. The Parties agree that facsimile signatures will be treated in all manner and respects as a binding and original document, and the signature of any Party shall be considered for these purposes as an original signature.
IN WITNESS WHEREOF, the Parties hereto have caused this Settlement to be executed as of the 7 day of February, 2003.