Case No. 02-13533 (AJG), (Jointly Administered)United States Bankruptcy Court, S.D. New York
November 4, 2003
Adam P. Strochak, Esq., Marcia L. Goldstein, Esq., Lori R. Fife, Esq., Alfredo R. Perez, Esq., WEIL, GOTSHAL MANGES LLP, New York, NY, for the Debtors and Debtors in Possession
Victoria Endriss Shisler, Esq., Leon R. Barson, Esq., ADELMAN, LAVINE, GOLD AND LEVINE, Philadelphia, PA, for Network Access Solutions Corporation
Robert J. DeSantis, DSL.NET, INC., New Haven, CT, for Network Access Solutions Corporation
STIPULATION AND AGREED ORDER AMONG DSL.NET, INC. NETWORK ACCESS SOLUTIONS CORPORATION AND THE DEBTORS FOR ALLOWANCE OF ADMINISTRATIVE EXPENSE CLAIM
ARTHUR GONZALEZ, Bankruptcy Judge
WHEREAS, on July 21, 2002 (the “Commencement Date”) and November 8, 2002, WorldCom, Inc. (“WorldCom”) and certain of its direct and indirect subsidiaries, as debtors and debtors in possession (collectively, the “Debtors”) commenced cases under chapter 11 of title 11 of the United States Code (the “Bankruptcy Code”). The Debtors continue to operate their businesses and manage their properties as debtors in possession pursuant to sections 1107(a) and 1108 of the Bankruptcy Code. By order dated July 22, 2002 and subsequent orders, the Debtors’ chapter 11 cases have been consolidated for procedural purposes only and are being jointly administered.
WHEREAS, on May 28, 2003, July 10, 2003, August 6, 2003, and September 12, 2003, the Court approved the Debtors’ Disclosure Statement Pursuant to Section 1125 of the Bankruptcy Code, dated May 23, 2003, the First Supplement thereto, dated July 9, 2003, the Second Supplement thereto, dated August 6, 2003, and the Third Supplement thereto, dated September 12, 2003 (collectively, the “Disclosure Statement”) and scheduled the hearing for the Court to consider the confirmation of the Debtors’ Amended Joint Plan of Reorganization Under Chapter 11 of the Bankruptcy Code (the “Plan”). The hearing on confirmation of the Plan began on September 8, 2003,
continuing thereafter. Capitalized terms not defined herein shall have the meanings ascribed such terms in the Plan.
WHEREAS, the Debtors entered that certain Digital Services Agreement No. NAS-001 110 between Network Access Solutions Corporation (“NAS”) and MCI WorldCom Network Services, Inc. (“MCI Network Services”), dated November 10, 2000, as amended by Addendum A between the parties, dated August 1, 2001, pursuant to which the Debtors would provide dedicated digital network services to NAS (the “Agreement”).
WHEREAS, on June 4, 2002, NAS filed its voluntary petition for protection under chapter 11 of the Bankruptcy Code in the United States Bankruptcy Court for the District of Delaware. MCI Network Services continued to provide dedicated digital network services to NAS during the post-petition period, provided that NAS made prepayments as adequate assurance of performance under the Agreement.
WHEREAS, NAS made several prepayments for access to the Debtors’ network during the post-petition period of the NAS bankruptcy, resulting in a credit balance due and owing to NAS in the amount of $34,053.54 (the “NAS Claim”).
WHEREAS, on December 30, 2002, NAS sold certain of its assets pursuant to that certain Amended and Restated Asset Purchase Agreement by and among DSL.net, Inc. (“DSL”) and Network Access Solutions Corporation, Network Access Solutions, LLC, NASOP, Inc., and Adelman, Lavine, Gold, and Levin, a Professional Corporation, dated December 11, 2002 (the “Asset Purchase Agreement”).
WHEREAS, pursuant to Section 2.1(a)(viii) of the Asset Purchase Agreement, the NAS Claim was specifically excluded from the transfer of assets to DSL,
and that as such, all rights to the NAS Claim were reserved by NAS as the sole holder thereof.
WHEREAS, on August 14, 2003, NAS filed its Motion for Allowance and Payment of Administrative Expense Claim in Favor of Network Access Solutions Corporation (the “Motion”) in these cases seeking allowance and payment of the NAS Claim as a post-petition administrative expense of the Debtors’ estates.
WHEREAS, in order to resolve the Motion, the Debtors, DSL, and NAS have negotiated this Stipulation in good faith and at arms’ length and desire that it shall be binding on each of them.
NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED by and among the Debtors, DSL, and NAS, through their undersigned counsel, that:
1. The Motion is hereby granted.
2. On or before thirty (30) days after the Court’s entry of an Order approving this Stipulation, the Debtors shall deliver a check in the amount of $34,053.34 made payable to NAS to the undersigned counsel for NAS, in full and complete satisfaction of the NAS Claim.
3. DSL waives any right, title, and interest it may have in the NAS Claim in favor of NAS.
4. Each person who executes this Stipulation represents that he or she is duly authorized to execute this Stipulation on behalf of the respective parties hereto and that each such party has full knowledge and has consented to this Stipulation.
5. This Stipulation may be executed in 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 Stipulation to present any copy, copies or facsimiles signed by the parties hereto to be charged.
6. This Stipulation, and the terms and conditions contained herein, are subject to the approval of the Court and shall inure to the benefit of the Debtors, their successors and assigns, including, without limitation, a trustee, if any, appointed under chapter 7 or 11 of the Bankruptcy Code.
IT IS SO ORDERED.