Opinion
Case No. 02-13533 (AJG) (Jointly Administered)
April 8, 2003
Upon consideration of the motion (the "Motion") of WorldCom, Inc. and certain of its direct and indirect subsidiaries, as debtors and debtors in possession (collectively, the "Debtors"), for an order, pursuant to Bankruptcy Rule 9019, approving settlement and compromise of issues, and pursuant to Bankruptcy Code section 365, approving the sale of certain assets of UUNET Brasil, LTDA. free and clear of liens, claims, encumbrances and other interests, all as more fully set forth in the Motion; and upon all the proceedings before the Court; and after due deliberation and good and sufficient cause appearing therefor,
IT IS HEREBY FOUND AND DETERMINED THAT:
A. The Court has jurisdiction to consider the Motion and the relief requested therein pursuant to 28 U.S.C. § 157 and 1334 and the Standing Order of Referral of Cases to Bankruptcy Court Judges of the District Court for the Southern District of New York, dated July 19, 1984 (Ward, Acting C.J.), and this matter is a core proceeding pursuant to 28 U.S.C. § 157(b). Venue of these chapter 11 cases is proper pursuant to 28 U.S.C. § 1408 and 1409.
B. As evidenced by the affidavits of service filed with the Court, (i) proper, timely and adequate notice of the Motion and the hearing thereon was provided in accordance with the First Amended Case Management Order dated December 23, 2002; (ii) such notice was good and sufficient and appropriate under the particular circumstances; and (iii) no other or further notice of the Motion or the hearing thereon is required.
C. In the Motion, the Debtors moved this Court for the entry of an order pursuant to Bankruptcy Rule 9019 approving a settlement and compromise of issues, and pursuant to sections 363(b) and (f) of the Bankruptcy Code approving the sale of certain assets of UUNET Brazil free and clear of all liens, claims, encumbrances, and other interests.
D. The legal and factual bases set forth in the Motion establish just cause for the relief granted. The settlement reflected MOU is fair and reasonable under the circumstances, represents the exchange of fair value among the Parties, and in no way unjustly enriches any of the Parties. In addition, such settlement is in the best interest of the Debtors, their estates and creditors.
Capitalized terms used herein, except as otherwise noted, shall have the meanings ascribed to them in the Motion.
E. The Parties have each asserted certain claims against one another, in connection with services provided by the Parties prior to the Commencement Date. Many of these claims are resolved pursuant to the settlement and compromise incorporated into the MOU.
F. Absent authorization to enter into and implement the MOU, extensive judicial intervention before a court of competent jurisdiction would be required in order to resolve the many disputes among the Parties, and it is uncertain which of the Parties would emerge with a favorable and successful resolution of their claims. Such litigation would be costly, time consuming, and distracting to management and employees alike. Moreover, approval of the MOU and authorization of the Parties to enter into and implement such agreements would eliminate the attendant risk of litigation and will result in the payment of significant funds to the estates.
G. The settlement reflected in the MOU is the product of extensive, arms' length, good faith negotiations between the Parties.
NOW, THEREFORE, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED THAT:
1. The Motion of the Debtors is hereby granted in all respects; this Order constitutes a Final Order within the meaning of 28 U.S.C. § 158(a); and the provisions of this Order are non-severable and mutually dependent.
2. All objections, if any, to the Motion or the relief requested therein, that have not been withdrawn, waived or settled, and all reservations of rights included therein, are overruled.
3. The MOU, Amended MOU and the APA are hereby approved.
4. The Debtors are authorized, pursuant to Bankruptcy Rule 9019 and Bankruptcy Code sections 105 and 363, to execute, deliver, implement, and fully perform any and all obligations, instruments, documents and papers and to take any and all actions reasonably necessary or appropriate to consummate the settlement reflected in the MOU and the Amended MOU and to perform any and all obligations contemplated therein immediately upon entry of this Order.
5. The sale and transfer of the UUNET Brazil Assets to Embratel, as described in the Motion and the APA, is in all respects approved and the sale approved herein is in the best interests of the Debtors, their estates and their creditors.
6. This Court shall retain jurisdiction over any and all disputes arising under or otherwise relating to the construction, performance, and enforcement of the terms of this Order and the terms and conditions of the settlement hereby authorized or approved.
8. This Order shall be effective and enforceable immediately upon entry of this Order, pursuant to F.R.Bankr.P. 6004(g).