Free Motion for Settlement - District Court of Delaware - Delaware

Case 1:O4—cv—OO395-GI\/IS Document 17-2 Filed O9/28/2006 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
BROADBAND OFFICE, INC.,
Plaintiff; Civil Action No. 03495 (GMS)
ATLAS VAN LINES,
Defendant.
SETTLEMENT AGREEMENT
This Settlement Agreement (the "Settlement Agreement"), effective upon execution by all
parties hereto, is made and entered into by and between the plaintiff BBC} Liquidation Corp.
("Plaintit`f") and the defendant Atlas Van Lines (“Dei`endant°’).
RECETALS
WHEREAS, on May 9, 2001 (the "Petition Date"), BroadBand Oftice, Inc. (the "Debtor")
tiled a voluntary relief under Chapter ll of the Bankruptcy Code and, since the Retition Date, has
maintained its affairs as a debtor in possession pursuant to 11 U.S.C. § 1107; and
WHEREAS, on May 7, 2003, the Debtor tiled a complaint against Defendant seeking to
avoid and recover certain transfers from Plaintiff to Defendant, initiating the abovemaptioried
adversary proceeding (the "Adversary Proeeeciing"); and
WHEREAS, on July 27, 2005, the Debtor and the Official Committee of Unsecured Creditors
(the "Comrnittee") jointly fried the First Amended Joint Liquidating Plan of the Debtor and the
Ofticiai Committee of Unsecured Creditors (the "P}an") in the Debtor’s main bankruptcy ease. The
Court entered an order contirming the Plan (the "Contira:nation Order") on September E2, 2005 (tire
"Contirmation Date"}. The effective date under the Plan occurred on September 23, 2005 (thc
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"Eff`eetive £)ate"), The Plan and Ccnfwmatéen Order granted Plaintiff standing and authority to
initiate and pursue avoidance actions under Chapter 5 of the Bankruptcy Code; and
WHEREAS, Plaintiff believes that it has a valid claim against Defendant, and Defendant
beiieves {hat it has valid defenses to PEaiz1tiff’s claims; and
WHEREAS, in view ef the expense and difiicuiiyi:1 Htigating the merits of Piai.ntii’£”s claim
and Befencianfs defenses, the parties have decided to resolve xhis matter amicabiy and without
timber litigation.
NOW THEREFORE in consideration of the mutual covenants contained herein, and other
gucci and valuable consideration, the receipt and sufficiency of which are hereby aekmzwiedged, the
parties agree as fellows:
AGREEMEQL
L Within ten (10) days after its execution of this Settlement Agreement, Defendant
shall pay $6,000.00 in immediately available funds te Plaintiff in full and finai satisfaction of the
claims asserted in the Adversary Proceeding (the “Se¤Eement Am0u¤i"}.
2. Effective upon receipt of the Settlement Amount by Piaiutiff, Plaintiff, by and on
behaif of the Debtcfs bankruptcy estate, hereey releases, aequits and forever discharges Defendant
and its respective agents, affiliates, predecessors, subsidiaries, successors in interest, parent
corporations, assigns, insurers, employees, aiiomeys, officers and directors &0m any and ai} claims,
ceunterelaims, rights, demands, costs, damages, losses, liabilities, attemeys‘ fees, actions and causes
of action whatsoever, whether known or smknewn, liquidated, uniiquidated, fixed, contingent,
material, immateriai, disputed, undisputed, legal er equitable (hereinafter "e1aims"), which Plaintiff
has against Defendant related to Plaintiffs bankruptcy case. Notwithstanding the foregoing, this
Settlement Agreement shall not be ecnstrued as a reiease cr waiver of any ciefenses to any eiaim or
cause of action.
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3. Effective upon receipt of the Settlement Amount by Plaintiff, Defendant, by and on
behalf of itsehi its agents, affiliates, predecessors, subsidiaries, successors in interest, parent
corporations, assigns, insurers, employees, attorneys, officers and directors hereby releases, acquits
and forever discharges Plaintiff, the Debtor, and the Debtor’s bankruptcy estate from any and all
claims, counterclairos, rights, demands, costs, damages, losses, liabilities, &ttorneys’ fees, actions and
causes of action whatsoever, whether known or unknown, liquidated, nnliquidated, fixed, contingent,
material, immaterial, disputed, undisputed. legal or equitable, which Defendant has against Plaintiff,
the Debtor, and the Debtor’s bnnlcruptcy estate, including but not limited to any claim arising from
the payments made under this Settlement Agreement, and also including but not limited to the claim
arising from n proof of claim filed by Defendant in the Dc'btor’s bankruptcy case and docketed as
Claim No. 18 on the Court’s claims register. Notwithstanding the foregoing, this Settlement
Agreement shall not be construed as a release or waiver of any defenses to any claim or cause of
action.
4. This Settlement Agreement, along with the documents referred to herein, constitute
the entire agreement between the parties with regard to the subject matter hereof The Settlement
Agreement may not be modified or amended except in writing signed by all signatories hereto or
their successors in interest. l
5. Upon receipt by Plaintiff of the Settlement Amount, the parties shall tile a stipulation
ot` dismissal dismissing the Advcrsaxy Proceeding with prejudice in the form substantially attached
hereto, with each party to bear its own attorneys fees and costs.
6. lt is understood and agreeri that this Settlement Agreement shall be construed without
regard to any presumption or other rule requiring construction against the party causing the document
to be drafted. Each party is entering into this Settlement Agreement voluntarily, without duress, with
the consultation and advice of its legal counsel (or upon a voluntary waiver of the right to such
consultation and advice}, and with full understanding of its terms.
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7. This Settiemem Agreement sheti be iztterpzeted end construed in eccnrdmee with the
provisions of the Bmzkxuptcy Code amd, where not inconsistent, the imws of the State of Delaware,
without Wgard te the enema: of laws jurisprudence uf the State eflielewttrc. t
8. Arty dispute, action or proceeding arising out of or reiztiug to this Settlement
Agreement shalt be within the exctusive jurisdiction of the United States District Court for the
District of Delaware, sitting in its bankruptcy jvxisdictierz.
9. This Sctticmeut Agreement may be executed in my number cf counterparts and such
counterparts may, at thc option uf the executing party, bc delivered by tctefacsimiie, each of which
shall be deemed to be an nriginei but all of which shail ccztstitute one and the same document,
IN WETNESS WHERHOF, the panties harem, intending tc be legaiiy bound, have
caused the Setttement Agreement tu be duly executed as net forth beiuw.
AGREEQJT? er;
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PEPi;E?R };!AMiI,;}`ON LL? ATLAS VAN ES,,‘~&"€»
· " t.‘‘ t` ..... M " by: ·
David M. Fcurieier (DE N0. 2812) Name: . .
. . _ y1ZL;t.s Er. Tttuxth
Adam HM (DE N¤· mi) mt- treme; ef create and eeueeetm
Hercules Piazza
1313 N. Market Street, Suite 5109
Wiimington, DE i'}80i
* Telephone (302} TI?-6500
Jitrcrneysfar Plairzttf Defendant A1; la.; V;-gm Lina; , Inc:.
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