Case 3:18-cr-04683-GPC Document 221-2 Filed 11/02/20 PageID.2255 Page 1 of 12
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`EXHIBIT A
`
`004
`
`

`

`
`
`Case 09-10138-CSS Doc 5315 Filed 04/26/11 Page 1 of 11Case 3:18-cr-04683-GPC Document 221-2 Filed 11/02/20 PageID.2256 Page 2 of 12
`
`IN THE UNITED STATES BANKRUPTCY COURT
`FOR THE DISTRICT OF DELAWARE
`
`-----------------------------------------------------------
`In re
`
`X
`
`Nortel Networks Inc., et al., 1
`
`Debtors.
`
`Chapter 11
`
`Case No. 09-10138 (KG)
`
`Jointly Administered
`
`RE: D.l.'s 5143, 5252, 5253,
`5280,5283
`
`----------------------------------------------------------- X
`
`ORDER (I) AUTHORIZING AND APPROVING THE SALE OF INTERNET
`NUMBERS FREE AND CLEAR OF ALL LIENS, CLAIMS, ENCUMBRANCES
`AND INTERESTS; (II) AUTHORIZING AND APPROVING ENTRY INTO A
`PURCHASE AND SALE AGREEMENT; (III) AUTHORIZING THE FILING OF
`CERTAIN DOCUMENTS UNDER SEAL AND (IV) GRANTING RELATED RELIEF
`
`Upon the motion, (the "Motion") [D.I. 5143], dated March 21, 2011 of Nortel
`
`Networks, Inc. ("NNI") as debtor and debtor-in-possession in the above-captioned chapter 11
`
`case, as amended by Notice of Filing of Revisions to Purchase Agreement and Proposed Sale
`
`Order, dated April 15, 2011 (the "Notice of Filing") [D.I. 5252], seeking the entry ofan order, as
`
`more fully described in the Motion, pursuant to sections 105, 107(b )(1) and 363 of title 11 of the
`
`United States Code (the "Bankruptcy Code"), Rules 2002, 6004 and 9018 of the Federal Rules of
`
`Bankruptcy Procedure (the "Bankruptcy Rules"), and Rules 6004-1 and 9018- 1 (b) of the Local
`
`Rules of Bankruptcy Practice and Procedure of the United States Bankruptcy Court for the
`
`District of Delaware (the "Local Rules") (i) authorizing the sale, assignment and transfer of all of
`
`The Debtors in these chapter 11 cases, along with the last four digits of each Debtor's tax identification
`number, are: Nortel Networks Inc. (6332), Nortel Networks Capital Corporation (9620). Nortel Altsystems Inc:.
`(9769), Nortel Altsystems International Inc. (5596), Xros, Inc. (4181), Sonoma Systems (2073). Qtera Corporation
`(0251), CoreTek, Inc. (5722), Nortel Networks Applications Management Solutions Inc. (2846). Norte:! Networks
`Optical Components Inc. (3545), Nortel Networks HPOCS Inc. (3546), Architel Systems (U.S.) Corporation (3826).
`Nortel Networks International Inc. (0358), Northern Telecom International Inc. (6286), Nortel Networks Cable
`Solutions Inc. (0567) and Nortel Networks (CALA) Inc. (4226). Addresses for the Debtors can be found in the
`Debtors' petitions, which are available athttp://dm.epigII.com/nortel
`
`005
`
`

`

`
`
`Case 09-10138-CSS Doc 5315 Filed 04/26/11 Page 2 of 11Case 3:18-cr-04683-GPC Document 221-2 Filed 11/02/20 PageID.2257 Page 3 of 12
`
`NNI's rights in and to approximately 666,624 legacy 1Pv4 numbers (as described further in the
`
`Agreement, the "Internet Numbers") on an "as-is" and "where-is" basis, free and clear of all
`
`Liens,2 Claims, encumbrances and
`
`interests, other than Assumed Liabilities, Permitted
`
`Encumbrances or Liens created by or through the Purchaser or any of its Affiliates, or as
`
`otherwise provided in the Agreement (collectively, the "Interests") pursuant to section 363 of the
`
`Bankruptcy Code (the "Transaction"), (ii) authorizing and approving entry into that certain
`
`Amended and Restated Asset Sale Agreement dated as of April 13, 2011 among NNI (the
`
`"Seller") and Microsoft Corporation (the "Purchaser") for the sale, assignment and transfer of
`
`Seller's Rights (as defined below)in and to the Internet Numbers as described therein, in the form
`
`attached to the Notice of Filing as Exhibit A (the "Agreement"), (iii) authorizing the filing of
`
`certain documents under seal and (iv) granting such other and further relief as the Court deems
`
`just and proper; and a hearing having been held on April 26, 2011 in connection with the Motion
`
`(the "Hearing"); and all parties in interest having been heard, or having had the opportunity to be
`
`heard, regarding the relief requested in the Motion; and the Court having considered (a) the
`
`Motion, (b) the objections, if any, to the Motion and (c) the arguments made and evidence
`
`proffered or adduced in support of the Motion at the Hearing; and it appearing that entry of this
`
`Order is in the best interests of the Debtors and their estates; and after due deliberation and good
`
`and sufficient cause appearing therefor,
`
`2
`
`Capitalized terms used but not defined herein have the meanings ascribed to them in the Agreement.
`
`- 2 -
`
`006
`
`

`

`
`
`Case 09-10138-CSS Doc 5315 Filed 04/26/11 Page 3 of 11Case 3:18-cr-04683-GPC Document 221-2 Filed 11/02/20 PageID.2258 Page 4 of 12
`
`IT IS HEREBY FOUND AND DETERMINED THAT: 3
`
`A.
`
`This Court has jurisdiction over these chapter 11 cases, over the Motion as
`
`a core proceeding and over the parties and Internet Numbers under 28 U.S.C. §§ 157(b) and
`
`1334. Venue is proper in this Court under 28 U.S.C. §§ 1408 and 1409.
`
`B.
`
`This Order constitutes a final and appealable order within the meaning of
`
`28 U.S.C. § 158(a).
`
`C.
`
`Notice of the Motion and the Notice of Filing have been given via first
`
`class mail, facsimile, electronic transmission, hand delivery or overnight mai I to ( i) the U.S.
`
`Trustee; (ii) counsel to the Committee: (iii) counsel to the Bondholder Group; (iv) the Purchaser;
`
`(v) the American Registry for Internet Numbers ("ARIN"), (vi) all parties to any transition
`
`services or similar agreement pursuant to which any of the Internet Numbers are being used to
`
`provide services; and (vii) the general service list established in these chapter 11 cases. The
`
`notice given by the Debtors of the Motion, the Hearing and the relief being requested constitutes
`
`appropriate notice under the circumstances and complies with sections 107(b) and 363 of the
`
`Bankruptcy Code, Bankruptcy Rules 2002, 6004 and 9018 and Local Rules 6004-1 and 901 8-
`
`1 (b ).
`
`D.
`
`Based upon the affidavits of service filed with the Court: (a) notice and
`
`service of the Motion was adequate and sufficient under the circumstances of these chapter 11
`
`cases and these proceedings and complied with the various applicable requirements of the
`
`Bankruptcy Code and the Bankruptcy Rules; and (b) a reasonable opportunity to object and be
`
`heard with respect to the Motion and the relief requested therein was afforded to all interested
`
`persons and entities.
`
`3 Findings of fact shall be construed as conclusions of law and conclusions of law shall be construed as findings of
`fact when appropriate. See Fed. R. Bankr. P. 7052.
`
`- 3 -
`
`007
`
`

`

`
`
`Case 09-10138-CSS Doc 5315 Filed 04/26/11 Page 4 of 11Case 3:18-cr-04683-GPC Document 221-2 Filed 11/02/20 PageID.2259 Page 5 of 12
`
`E.
`
`Neither the Purchaser nor any of its affiliates is an "insider" of the Debtors
`
`as that term is defined in section 101 (31) of the Bankruptcy Code. The Purchaser negotiated the
`
`terms and conditions of the Agreement in good faith and at arm's length with the Seller. The
`
`Purchaser is a "good faith" purchaser within the meaning of section 363(m) of the Bankruptcy
`
`Code and is, therefore, entitled to the protections afforded thereby. Neither the Seller nor the
`
`Purchaser nor any of their affiliates has engaged in any conduct that would cause or permit the
`
`Transaction to be avoidable under Section 363(n) of the Bankruptcy Code.
`
`F.
`
`The legal and factual bases set forth in the Motion and the record in these
`
`proceedings establish just cause for the relief requested therein, and that such relief is in the best
`
`interests of the Debtors, their estates and creditors, and all other parties in interest.
`
`G.
`
`The Seller has the exclusive right to use the Internet Numbers and the
`
`exclusive right to transfer its exclusive right to use the Internet Numbers. Such exclusive rights
`
`to use and transfer, together with Seller's other legal and equitable rights in and to the Internet
`
`Numbers, if any, are referred to herein collectively as the "Seller's Rights").
`
`H.
`
`The Agreement was negotiated and has been and is undertaken by the
`
`Debtors and the Purchaser at arm's length, without collusion or fraud, and in good faith within
`
`the meaning of Bankruptcy Code section 363(m). As a result of the foregoing, the Debtors and
`
`the Purchaser are entitled to the protections of section 363(m) of the Bankruptcy Code.
`
`I.
`
`Purchaser has represented that it has entered into a Legacy Registration
`
`Services Agreement with ARIN with respect to the Internet Numbers (the "LRSA '').
`
`J.
`
`No further consents or approvals are required for the Seller to enter into
`
`the Agreement, to transfer the Seller's Rights in the Internet Numbers to the Purchaser or to
`
`consummate the Transaction other than entry of this Order and as set forth in the Agreement.
`
`- 4 -
`
`008
`
`

`

`
`
`Case 09-10138-CSS Doc 5315 Filed 04/26/11 Page 5 of 11Case 3:18-cr-04683-GPC Document 221-2 Filed 11/02/20 PageID.2260 Page 6 of 12
`
`The execution of the Agreement by the Seller will not constitute a violation of any provision of
`
`either the organizational documents of the Seller or any other law, regulation or ordinance under
`
`which the Seller is bound. Upon entry of this Order, the Seller has full corporate power and
`
`authority to execute the Agreement
`
`K.
`
`The Purchaser would not have entered into the Agreement and would not
`
`consummate the Transaction if the sale, transfer and assignment of the Seller's Rights in and to
`
`the Internet Numbers to the Purchaser was not free and clear of all Interests, pursuant to section
`
`363(f) of the Bankruptcy Code, subject to the terms of the LRSA. A sale, assignment and
`
`transfer of the Seller's Rights in and to the Internet Numbers other than one on such terms would
`
`yield substantially less value for the Debtors' estates, with less certainty, than the Transaction.
`
`Therefore, the Transaction contemplated by the Agreement is in the best interests of NNI and its
`
`estate and creditors, and all other parties in interest.
`
`L.
`
`The consideration to be paid by Purchaser for the Internet Numbers under
`
`the Agreement and the terms and conditions thereunder constitute transfers for reasonably
`
`equivalent value and fair consideration and may not be avoided under section 363(n) of the
`
`Bankruptcy Code.
`
`M.
`
`The Debtors have demonstrated good, sufficient and sound business
`
`purpose and justification for entering into the Agreement and consummating the Transaction
`
`because, among other things, the Seller and its advisors diligently and in good faith analyzed all
`
`available options in connection with the disposition of its rights in and to the Internet Numbers,
`
`initiated and conducted a competitive bidding process under which the Purchaser was the
`
`winning bidder, and determined that (i) the terms and conditions set forth in the Agreement and
`
`(ii) the sale, assignment and transfer of the Seller's Rights in and to the Internet Numbers in
`
`- 5 -
`
`009
`
`

`

`
`
`Case 09-10138-CSS Doc 5315 Filed 04/26/11 Page 6 of 11Case 3:18-cr-04683-GPC Document 221-2 Filed 11/02/20 PageID.2261 Page 7 of 12
`
`exchange for the purchase pnce, as more fully described in Agreement, are all fair and
`
`reasonable and together constitute the highest or otherwise best value obtainable for such rights
`
`in and to the Internet Numbers ..
`
`N.
`
`Upon entry of this Order, the Agreement shall be a legal, valid and
`
`binding contract between the Seller and the Purchaser and is enforceable against the Seller and
`
`the Purchaser in accordance with its terms.
`
`0.
`
`Upon entry of this Order, (i) no further action is required under the
`
`Bankruptcy Code for the Seller to consummate the Transaction pursuant to the Agreement and
`
`(ii) the consummation of the Transaction pursuant to the Agreement will be legal. valid and
`
`properly authorized under all applicable provisions of the Bankruptcy Code, including sections
`
`105(a), 363(b), 363(f) and 363(m), and all of the applicable requirements of such sections have
`
`been complied with in respect of the Transaction.
`
`P.
`
`The Seller's Rights in the Internet Numbers will be transferred, converted,
`
`cancelled or otherwise disposed of free and clear of Interests pursuant to the terms of the
`
`Agreement because, with respect to each person or entity asserting an interest in the Seller's
`
`Rights in the Internet Numbers, one or more of the standards set forth in section 363(t) have been
`
`satisfied. All holders of Interests who did not object to the Motion and the relief requested
`
`therein, or who withdrew any objections to the Motion and the relief requested therein, arc
`
`deemed to have consented to the Transaction pursuant to section 363(f)(2) of the Bankruptcy
`
`Code. Those holders Interests who did object fall within one or more of the other subsections of
`
`section 363(f), and all holders of Liens are adequately protected by having their Liens, if any,
`
`attach to the cash proceeds of the Transaction attributable to the Seller' Rights in the Internet
`
`Numbers against or in which they claim an interest, with the same priority, validity, force and
`
`- 6 -
`
`010
`
`

`

`
`
`Case 09-10138-CSS Doc 5315 Filed 04/26/11 Page 7 of 11Case 3:18-cr-04683-GPC Document 221-2 Filed 11/02/20 PageID.2262 Page 8 of 12
`
`effect as they attached to such property immediately before the Closing of the Transaction
`
`relating to such Internet Asset.
`
`Q.
`
`The Schedules contain substantial sensitive commercial
`
`infonnation
`
`concerning the Debtors' business, records and related documentation, including without
`
`limitation the individual Internet Numbers that are subject to the Transaction, the public
`
`disclosure of which could lead to devaluation of the Seller's Rights in the Internet Numbers
`
`based on inappropriate use of such internet numbers by third parties. Filing the Schedules to the
`
`Sale Agreement under seal is in the best interests of the Debtors, their estates, creditors and other
`
`parties-in-interest.
`
`NOW, THEREFORE,
`
`IT
`
`IS HEREBY ORDERED, ADJUDGED. AND
`
`DECREED that:
`
`1.
`
`2.
`
`The Motion is granted.
`
`All objections, if any, to the entry of this Order are overruled to the extent
`
`not otherwise withdrawn or resolved as set forth on the record of the Hearing.
`
`3.
`
`The Agreement and all of the terms and conditions thereof are hereby
`
`approved. The Debtors are authorized and directed to consummate the Transaction as provided
`
`in the Agreement. Without limiting the foregoing, the Debtors are authorized to take all actions
`
`as may be reasonably requested by the Purchaser that may be reasonably necessary or
`
`appropriate to the performance of the obligations as contemplated by the Agreement or to
`
`effectuate the relief granted pursuant to this Order.
`
`4.
`
`The Agreement is legal, valid and effective under the Bankruptcy Code.
`
`Pursuant to the Agreement and to section 363(f) of the Bankruptcy Code, the Seller's Rights in
`
`the Internet Numbers shall be transferred, assigned and otherwise disposed of to the Purchaser
`
`- 7 -
`
`011
`
`

`

`
`
`Case 09-10138-CSS Doc 5315 Filed 04/26/11 Page 8 of 11Case 3:18-cr-04683-GPC Document 221-2 Filed 11/02/20 PageID.2263 Page 9 of 12
`
`(or its designated assignee, as permitted by the Agreement (the "Assignee")) free and clear of all
`
`Interests, whether known or unknown, contingent or otherwise, whether arising prior to or
`
`subsequent to the commencement of the Debtors' chapter 11 cases, and whether imposed by
`
`agreement, understanding, law, equity or otherwise. Upon the consummation of the Transaction.
`
`the Purchaser or the Assignee shall be vested with all of the Seller's right, title and interest in and
`
`to the Seller's Rights in the Internet Numbers, free and clear of all Interests. Any and all Liens
`
`shall attach to the net proceeds of the Transaction contemplated in the Agreement, with the same
`
`priority, validity, force and effect as they now have against the Internet Numbers and subject to
`
`any rights, claims or defenses of the Debtors or their estates with respect thereto.
`
`5.
`
`For the avoidance of doubt, this Order shall not affect the LRSA and the
`
`Purchaser's rights in the Internet Numbers transferred pursuant to this Order shall be subject to
`
`the terms of the LRSA.
`
`6.
`
`7.
`
`The provisions of this Order are nonseverable and mutually dependent.
`
`Nothing in this Order shall be deemed to waive, release. extinguish or
`
`estop the Debtors or their estates from asserting or otherwise impair or diminish any right
`
`(including without limitation any right of recoupment), claim, cause of action, defense, offset or
`
`counterclaim in respect of any asset that is not an Internet Number.
`
`8.
`
`Except with respect to enforcing the terms of the Agreement, absent a stay
`
`pending appeal, no person or entity shall take any action to prevent, enjoin or otherwise interfere
`
`with consummation of the Transaction contemplated in or by the Agreement or this Order.
`
`9.
`
`The Agreement may be amended, modified or supplemented, or the
`
`provisions thereof waived, in accordance with the terms thereof without further order of this
`
`Court or notice thereof to any party in interest in the Debtors' chapter 11 cases, provided.
`
`- 8 -
`
`012
`
`

`

`
`
`Case 09-10138-CSS Doc 5315 Filed 04/26/11 Page 9 of 11Case 3:18-cr-04683-GPC Document 221-2 Filed 11/02/20 PageID.2264 Page 10 of 12
`
`however, that further order of this Court shall be required if there is an amendment, modification,
`
`supplement or waiver to the Agreement that has a material and adverse impact on the Seller;
`
`provided further that no such modifications, amendments, or supplements may be made except
`
`following (a) two (2) days written notice to, or the prior consent of, the counsel to the
`
`Committee, Akin Gump Strauss Hauer & Feld LLP, One Bryant Park, New York. NY 10036
`
`(Attention: Fred S. Hodara, Stephen Kuhn, and Kenneth Davis); the counsel to the Bondholder
`
`Group, Milbank, Tweed, Hadley & McCloy, One Chase Manhattan Plaza, New York. New
`
`York, 10006 (Attention: Albert A. Pisa and Thomas J. Matz); and (b) two (2) days written notice
`
`to counsel to ARIN, McDermott Will & Emery, LLP, 600 13th Street, N. W., Washington, D.C.
`
`2005-3096 (Attn.: Stephen M. Ryan).
`
`10.
`
`In the absence of a stay of the effectiveness of this Order, in the event that
`
`the Purchaser and the Seller consummate the Transaction contemplated by the Agreement at any
`
`time after entry of this Order, then with respect to the Transaction approved and authorized
`
`herein, the Purchaser or Assignee, as arm's-length purchaser in good faith within the meaning of
`
`section 363(m) of the Bankruptcy Code, shall be entitled to all of the protections of section
`
`363(m) of the Bankruptcy Code in the event this Order or any authorization contained herein is
`
`reversed or modified on appeal.
`
`11.
`
`Each and every federal , state, and
`
`local governmental agency or
`
`department is hereby authorized to accept any and all documents and instruments necessary and
`
`appropriate to consummate the Transaction contemplated by the Agreement.
`
`12.
`
`The failure specifically to
`
`include any particular prov1s1on of the
`
`Agreement in this Order shall not diminish or impair the effectiveness of such provision, it being
`
`the intent of the Court that the Agreement be authorized and approved in its entirety.
`
`- 9 -
`
`013
`
`

`

`
`
`Case 09-10138-CSS Doc 5315 Filed 04/26/11 Page 10 of 11Case 3:18-cr-04683-GPC Document 221-2 Filed 11/02/20 PageID.2265 Page 11 of 12
`
`13.
`
`The Court shall retain exclusive jurisdiction to (i) interpret, construe and
`
`enforce the provisions of the Agreement, all amendments thereto, any waivers and consents
`
`thereunder, and each of the agreements executed in connection therewith and this Order in all
`
`respects, in each case solely to the extent such interpretation, construction or enforcement
`
`pertains to a Debtor and (ii) hear and determine any and all disputes arising under or related to
`
`the Agreement or the Transaction, except as otherwise provided in the Agreement, and solely to
`
`the extent that a Debtor is directly involved in such dispute.
`
`14.
`
`The terms of this Order and the Agreement shall be binding on and inure
`
`to the benefit of the Debtors, all stakeholders (whether known or unknown) of the Debtors. the
`
`Purchaser, the Assignee, the Debtors' creditors and all other parties in interest. including all
`
`persons served with notice of the Motion pursuant to Paragraph C above, and any successors or
`
`the Debtors, the Purchaser and the Assignee (if any), and the Debtors' creditors, including any
`
`trustee or examiner appointed in these cases or any subsequent or converted cases of the Debtors
`
`under chapter 7 or chapter 11 of the Bankruptcy Code.
`
`15.
`
`Nothing contained in any plan confirmed in this case or any order of the
`
`Court confirming such plan shall conflict with or derogate from the provisions of the Agreement
`
`or the terms of this Order.
`
`16.
`
`The failure to include any particular provision of the Agreement in this
`
`Order shall not diminish or impair the effectiveness of that provision, it being the intent of the
`
`Court and the parties that the Agreement be approved and authorized in its entirety.
`
`17.
`
`Any conflict between the terms and provisions of this Order and the
`
`Agreement shall be resolved in favor of this Order.
`
`- 10 -
`
`014
`
`

`

`
`
`Case 09-10138-CSS Doc 5315 Filed 04/26/11 Page 11 of 11Case 3:18-cr-04683-GPC Document 221-2 Filed 11/02/20 PageID.2266 Page 12 of 12
`
`18.
`
`The Debtors are hereby authorized to perform each of their covenants and
`
`undertakings as provided in the Agreement prior to the final Closing Date without further order
`
`of the Court.
`
`19.
`
`The Schedules delivered to the Court by the Debtors shall be kept
`
`segregated and under seal by the Clerk of Court and shall not be made publicly available
`
`pursuant to sections IOS(a) and 107(b) of the Bankruptcy Code, Bankruptcy Rule 9018 and
`
`Local Rule 9018-l(b).
`
`20.
`
`Pursuant to Bankruptcy Rule 6004(h), this Order is stayed until the
`
`expiration of 14 days after entry hereof. Thereafter, the Agreement shall be effective and
`
`enforceable by and against the Seller and the Purchaser, and the Debtors are authorized to take
`
`all steps necessary to consummate the Transaction contemplated in the Agreement.
`
`- 11 -
`
`015
`
`