Case No. 02-13533 (AJG) (Jointly Administered)United States Bankruptcy Court, S.D. New York.
March 18, 2003
ORDER, PURSUANT TO BANKRUPTCY CODE SECTION 365, APPROVING ASSUMPTION OF DAP AGREEMENT (AS AMENDED) AND, PURSUANT TO BANKRUPTCY RULE 9019, APPROVING SETTLEMENT AND COMPROMISE OF ISSUES BETWEEN MCI WORLDCOM NETWORK SERVICES, INC. AND BELLSOUTH TELECOMMUNICATIONS, INC.
ARTHUR J. GONZALEZ, United States Bankruptcy Judge
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 Code Section 365, seeking authority to assume the DAP Agreement,[1] as amended by Amendment No. 2, and, pursuant to Bankruptcy Rule 9019, approving settlement and compromise of issues 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 Case Management Order of this Court, 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. The legal and factual bases set forth in the Motion establish just cause for the relief granted, including, but not limited to, the fact that the DAP Agreement, as amended by Amendment No. 2 and incorporating the resolution of certain issues between the Parties, represents substantial cost savings to NSI and the estates.
D. The relief requested in the Motion (including, but not limited to, the assumption of the DAP Agreement, as amended by Amendment No. 2, and the satisfaction of cure obligations with respect thereto) is in the best interest of the Debtors, their estates and creditors.
NOW, THEREFORE, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED THAT:
1. The Motion is granted.
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 DAP Agreement, as modified by Amendment No. 2 is approved in all respects. Failure to mention in this Order any provision of the DAP Agreement, as modified by Amendment No. 2, shall not impair the efficacy thereof, it being the intention of this Order to approve all provisions of the DAP Agreement, as modified by Amendment No. 2. In the Event of any inconsistency between the DAP Agreement, as modified by Amendment No. 2, and the summary of any term thereof in the Motion or this Order, the DAP Agreement, as modified by Amendment No. 2, shall control.
4. NSI shall have been deemed to have cured any and all prepetition defaults under the DAP Agreement by (a) assuming the DAP Agreement, as amended by Amendment No. 2, and (b) paying to BellSouth $22,300,000.00 as a cure amount in full and complete satisfaction of any and all prepetition defaults under the DAP Agreement (the “Cure Amount”).
5. The Debtors are hereby authorized to: (a) assume the DAP Agreement, as amended by Amendment No. 2, with BellSouth and satisfy the cure obligations of NSI with respect thereto, and (b) enter into and implement the DAP Agreement, as amended by Amendment No. 2, in accordance with the terms therein.
6. The Debtors are authorized, pursuant to sections 105 and 365 of the Bankruptcy Code, to execute and deliver such documents and take such actions as are necessary to effectuate the transactions and agreement approved herein.
7. The DAP Agreement, as amended by Amendment No. 2, may be modified, amended or supplemented by the parties thereto in accordance with the terms thereof without further order of the Court.
8. Nothing in the Motion, this Order, or the DAP Agreement, as amended by Amendment No. 2, shall constitute an admission or waiver of any kind with respect to any issue relating to setoff or recoupment, including, without limitation, any issue relating to mutuality of parties or obligations.
9. The provisions of this Order are nonseverable and mutually dependent.
10. The Court shall retain jurisdiction to: (a) resolve any disputes,
controversies, or claims arising out of or relating to this Order, and (b) interpret,
implement and enforce this Order.
11. This Order shall be effective and enforceable immediately upon entry of this Order, pursuant to F.R.Bankr.P. 6004(g).