LINDA RIEGLE, Chief Judge, Bankruptcy
The Trustee's Motion for Approval of Settlement with ORBITZ, LLC (hereinafter referred to as the "Orbitz") having come before this Court on the 7th day of April, 2005; the Trustee appearing by and through his counsel Schwartzer McPherson Law Firm; the Court finding that proper notice was given to debtor, creditors and parties in interest, and there being no opposition filed herein; the Court having reviewed the Motion and good cause appearing, it is: ORDERED that the Motion be, and it hereby is, granted, and Trustee is authorized to settle this matter pursuant to the Settlement Agreement and Mutual Release attached hereto whereby Orbitz will pay the amount of $30,000 to the estate, and Orbitz and its related entities will waive any claim against the Debtor's estate.
EXHIBIT "1" SETTLEMENT AGREEMENT AND MUTUAL RELEASE
This Settlement Agreement and Mutual Release ("Agreement") is made this ____ day of ____, 2004, by and among Tom Grimmett, Chapter 7 Trustee (the "Trustee") for the Chapter 7 bankruptcy estate of National Airlines, Inc. (the "Debtor"), and Orbitz, LLC ("Orbitz").
RECITALS
A. The Debtor filed a petition for voluntary relief under Chapter 11 of the Bankruptcy Code on December 6, 2000. On May 7, 2003, the Court entered an Order converting the Debtor's Chapter 11 bankruptcy case to a case under Chapter 7 of the Bankruptcy Code effective as of April 14, 2003, at 1:30 p.m. ("Conversion Order"). Tom Grimmett (the "Trustee") is the duly appointed and acting Chapter 7 Trustee.
B. Debtor's records indicated that Orbitz allegedly owed the sum of $91,543.18 for recalled commissions. On or about January 2, 2004, the Trustee demanded payment of this sum from Orbitz (the "Claim"). The Trustee is prepared to, but has not yet filed an adversary complaint to commence an adversary proceeding for collection of these amounts.
C. After discussions with Orbitz, and review of the relevant documentary evidence, the Trustee believes that it is in the interest of the estate and its creditors to settle the matter as set forth herein. Based upon the litigation risk and the cost of litigation, the Trustee and Orbitz have reached a settlement whereby Orbitz will pay the amount of $30,000.00 to the Trustee for the benefit of the Debtor's bankruptcy estate, and Orbitz will waive its proof of claim and any claim which it might otherwise be entitled to file, against the Debtor's estate. This settlement will resolve any outstanding debits and/or credits or claims by and between the Debtor and Orbitz in their entirety.
AGREEMENT
Now, therefore, in consideration of the mutual covenants made herein and for good and other valuable consideration, the sufficiency of which is hereby acknowledged and the sufficiency of which shall not be challenged, the parties mutually agree as follows:
1. Orbitz will pay the amount of THIRTY THOUSAND DOLLARS ($30,000.00) in settlement and satisfaction of any and all obligations to the Debtor, including but not limited to the claim asserted by the Trustee, within ten (10) business days of the entry of an Order of the bankruptcy court in the Debtor's bankruptcy case, which is a final nonappealable order for purposes of 28 U.S.C. §§ 158 and 1291 and which is not the subject of a pending appeal, stay pending appeal, or writ of certiorari, approving this Agreement and authorizing the Trustee to execute and perform pursuant to same.
2. Orbitz and its related entities will waive any proof of claim against the Debtor's estate and will consent to the disallowance of any claim(s) it has previously filed in the Debtor's bankruptcy case.
3. The Trustee, for and on behalf of the Debtor's Chapter 7 estate, himself, and his successor and assigns, does hereby release and forever discharge Orbitz, and its affiliates, successors, assigns, and agents from any and all claims, demands, actions, and causes of action of any kind and nature, whether known or unknown, direct or indirect, liquidated or unliquidated, fixed or contingent, whether arising in contract or tort, and/or whether determined in law or in equity arising from or in any way related to (i) the agreements and business relations of the Debtor and Orbitz and (ii) this bankruptcy case, except for his obligations under this Agreement.
4. Orbitz and its successors and assigns, does hereby release and forever discharge the Trustee from any and all claims, demands, actions, and causes of action of any kind and nature, whether known or unknown, direct or indirect, liquidated or unliquidated, fixed or contingent, whether arising in contract or tort, and/or whether determined in law or in equity arising from or in any way related to (i) the agreements and business relations of the Debtor and Orbitz and (ii) this bankruptcy case, except for its obligations under this Agreement.
5. This Agreement contains the entire agreement between the parties relating to the subject matter hereof and thereof, and supersedes all prior discussions, negotiations, correspondence, and drafts pertaining to the matters set forth herein and therein. No such discussions, negotiations, correspondence or drafts, nor any language deleted from prior drafts, nor the fact that such language was deleted, shall be considered in construing or interpreting the meaning of this Agreement. All modifications or representations concerning this Agreement shall be of no force and effect. Any subsequent modifications shall be effective only if they are in writing signed by the party to be charged.
6. All parties hereby warrant that they have each had advice of counsel of their own choosing in negotiating and executing this Agreement and that such counsel has fully explained both the content and legal effect of this Agreement.
7. Each party shall bear its own costs in this matter.
8. This Settlement Agreement is a compromise of disputed claims and does not constitute, and shall not be construed as, an admission of liability by either party with respect to any of the issues resolved hereby.
9. Disputes regarding the interpretation of the terms of this Agreement shall be adjudicated by the United States Bankruptcy Court for the District of Nevada.
10. The person who executes this Agreement on behalf of each party represents and warrants that he or she is authorized to execute and deliver this Agreement on behalf of such party.
11. The parties represent and warrant that neither has assigned or in any other manner transferred their rights to or in the matters being settled herein.
12. The Trustee agrees that it will make the necessary application to secure Bankruptcy Court approval of this Agreement upon receipt of a counterpart original Agreement duly executed on behalf of each of the parties. In the event that this Agreement is not approved by the Bankruptcy Court it shall be deemed null and void.
13. In the event that this Agreement shall be deemed null and void pursuant to Paragraph 12 hereof, the parties' agreement to settle the Claim, and any other claims and disputes between the parties, shall not be allowed or permitted to be used against any of the parties in any litigation regarding such claims or disputes.
DATED this 26 of January, 2005
ORBITZ, LLC
__________________
By:
Title
DATED this 5 day of November, 2004
TOM GRIMMETT, TRUSTEE
__________________