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Full title: Motion to Sell Property Free and Clear Under Section 363(f) Debtors' Motion for Entry of An Order Conditionally (i) Authorizing the Sale of the Assets of the Debtors Free and Clear of All Liens, Claims, Encumbrances, and Other Interests, (ii) Approving the Stalking Horse Agreement, (iii) Authorizing the Assumption and Assignment of Executory Contract s and Unexpired Leases, and (iv) Granting Related Relief.Fee Amount $188,. Filed by Debtor Wave Computing, Inc. (Attachments: # 1 Exhibit A - Proposed Order) (Newman, Samuel) (Entered: 01/15/2021)

Document posted on Jan 14, 2021 in the bankruptcy, 33 pages and 2 tables.

Bankrupt11 Summary (Automatically Generated)

sub11 this motion (this “Motion”),3 pursuant to sections 363, 364, 365 and 554 of title 11 of the United St12 Code, 11 U.S.C. §§ 101–1532 (the “Bankruptcy Code”), Rules 6004 and 6006 of the Federal Rule13 Bankruptcy Procedures (the “Bankruptcy Rules”), and Rules 6004-1 and 6006-1 of the Bankrup14 Local Rules for the Northern District of California (the “Bankruptcy Local Rules”) for an or15 conditionally (i) authorizing the sale of the Debtors’ Assets free and clear of all liens, clai16 encumbrances, and other interests; (ii) approving the Stalking Horse Agreement; (iii) authorizing 17 assumption and assignment of executory contracts and unexpired leases; and (iv) granting rela18 relief.By this Motion, the Debtors request the entry of the Sale Order conditionally (i) authoriz6 the sale of the Debtors’ Assets (as defined below) free and clear of all liens, claims, encumbran7 and other interests; (ii) approving the Stalking Horse Agreement; (iii) authorizing the assumption 8 assignment of executory contracts and unexpired leases; and (iv) granting related relief.The Assets May Be Sold Free and Clear of Liens, Claims and Interests Pursuato Section 363(f) of the Bankruptcy Code 7 Section 363(f) of the Bankruptcy Code authorizes a debtor to sell assets free and clear of li8 claims, interests and encumbrances if: 9 (1) applicable nonbankruptcy law permits sale of such property free and 10 clear of such interest; (2) such entity consents; (3) such interest is a lien and the price at which such property is to be sold is greater than the 11 aggregate value of all liens on such property; (4) such interest is in bona 12 fide dispute; or (5) such entity could be compelled, in a legal or equitable proceeding, to accept a money satisfaction of such interest.27 13 14Sect365(f)(3) further provides that “notwithstanding a provision in an executory contract or unexpi26 lease of the debtor, or in applicable law that terminates or modifies, or permits a party other than debtor to terminate or modify, such contract or lease or a right or obligation under such contrac27 lease on account of an assignment of such contract or lease, such contract, lease, right, or obligatmay not be terminated or modified under such provision because of the assumption or assignmen 1 G. HAIN CAPITAL INVESTORS/ LAYER 1 NETWORKS INC HAIN CAPITAL INVESTORS/ ONE CONVERGENCE INC HAIN CAPITAL INVESTORS/ PARTNERS4U GBR HAIN CAPITAL INVESTORS/ RT RK INSTITUTE FOR C HAIN CAPITAL INVESTORS/ SINTEGRA INC HAIN CAPITAL INVESTORS/ TRUVANTIS INC HAIN CAPITAL INVESTORS/ ULKASEMI HARSHA

List of Tables

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1 SIDLEY AUSTIN LLP Samuel A. Newman (SBN 217042) 2 (sam.newman@sidley.com) Genevieve G. Weiner (SBN 254272) 3 (gweiner@sidley.com) Julia Philips Roth (SBN 324987) 4 (julia.roth@sidley.com) 555 West Fifth Street 5 Los Angeles, CA 90013 Telephone: 213.896.6000 6 Facsimile: 213.896.6600 7 SIDLEY AUSTIN LLP Charles M. Persons (admitted pro hac vice) 8 (cpersons@sidley.com) Juliana Hoffman (admitted pro hac vice) 9 (jhoffman@sidley.com) Jeri Leigh Miller (admitted pro hac vice) 10 (jeri.miller@sidley.com) 2021 McKinney Avenue, Suite 2000 11 Dallas, TX 75201 Telephone: 214.981.3300 12 Facsimile: 214.981.3400 13 Attorneys for Debtors and Debtors in Possession 14 UNITED STATES BANKRUPTCY COURT 15 NORTHERN DISTRICT OF CALIFORNIA 16 SAN JOSE DIVISION 17 18 In re: ) Case No. 20-50682 (MEH) 19 ) WAVE COMPUTING, INC., et al., ) Chapter 11 (Jointly Administered) 20 ) Debtors.1 ) DEBTORS’ MOTION FOR ENTRY OF 21 ) AN ORDER CONDITIONALLY (I) ) AUTHORIZING THE SALE OF THE 22 ) ASSETS OF THE DEBTORS FREE AN ) CLEAR OF ALL LIENS, CLAIMS, 23 ) ENCUMBRANCES, AND OTHER ) INTERESTS, (II) APPROVING THE 24 ) STALKING HORSE AGREEMENT, (III ) AUTHORIZING THE ASSUMPTION A 25 ASSIGNMENT OF EXECUTORY ) 26 ) 27 1 The Debtors in these chapter 11 cases are Wave Computing, Inc., MIPS Tech, Inc., Hellosoft, I

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1 ) CONTRACTS AND UNEXPIRED LEAS ) AND (IV) GRANTING RELATED RELI 2 ) ) Requested Hearing Date 3 ) Date: February 18, 2021 ) 4 Time: 10:15 a.m. (Pacific Time) ) Judge: Honorable M. Elaine Hammond ) 5 Hearing Via Zoom Video ) 6 Potential Purchaser: Stalking Horse Bidder2 7 Potentially Affected Lienholders: Tallwood Technology Partners LLC, California Franchise Ta Board, Internal Revenue Service, and those parties set forth in8 Schedule 1. 9 Wave Computing, Inc. (“Wave”) and its debtor affiliates, as debtors and debtors in possess10 (collectively, the “Debtors”) in the above-captioned chapter 11 cases (the “Chapter 11 Cases”) sub11 this motion (this “Motion”),3 pursuant to sections 363, 364, 365 and 554 of title 11 of the United St12 Code, 11 U.S.C. §§ 101–1532 (the “Bankruptcy Code”), Rules 6004 and 6006 of the Federal Rule13 Bankruptcy Procedures (the “Bankruptcy Rules”), and Rules 6004-1 and 6006-1 of the Bankrup14 Local Rules for the Northern District of California (the “Bankruptcy Local Rules”) for an or15 conditionally (i) authorizing the sale of the Debtors’ Assets free and clear of all liens, clai16 encumbrances, and other interests; (ii) approving the Stalking Horse Agreement; (iii) authorizing 17 assumption and assignment of executory contracts and unexpired leases; and (iv) granting rela18 relief. As described more fully herein, with respect to the relief requested in (i) through (iii) abo19 the Debtors request that such relief only go into effect on the date on which the Decision Maker de20 the Stalking Horse Agreement (which was not the Successful Bid after the Auction) the Succes21 Bid in accordance with the procedures described herein (such date, the “Plan Termination Date”). 22 support of this Motion, the Debtors rely on the pleadings on file in these Chapter 11 Cases and sub23 the Declaration of Sandeep Prabhakar in Support of the Debtors’ Motion for Entry of an Or24 2 In accordance with the Order Granting the Motion of Debtors Pursuant to 11 U.S.C. § 105(a) 25 107(b) for Entry of an Order Authorizing the Debtors to File Under Seal the Debtors’ Unredacted Procedures Motion [Dkt. No. 891] (the “Sealing Order”), the identity of the Stalking Horse Bidder26 defined below) is confidential. Parties in interest may request an unredacted version of the StalkHorse Agreement (as defined below) pursuant to the procedures set forth in the Sealing Order. 27 3 Capitalized terms used but not otherwise defined in this paragraph shall have the meanings ascri

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1 Conditionally (I) Authorizing the Sale of the Assets of the Debtors Free and Clear of All Liens, Clai 2 Encumbrances, and Other Interests; (II) Approving the Stalking Horse Agreement; (III) Authoriz3 the Assumption and Assignment of Executory Contracts and Unexpired Leases; and (IV) Grant 4 Related Relief (the “Prabhakar Declaration”), filed contemporaneously herewith and incorpora5 herein by reference. 6 A proposed form of order granting the relief requested herein (the “Sale Order”) is attac7 hereto as Exhibit A. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

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1 TABLE OF CONTENTS 2 P 3 I. JURISDICTION ..................................................................................................................... 4 II. BACKGROUND .................................................................................................................... 5 A. General Background ................................................................................................... 6 B. The Debtors’ Prepetition and Post-Petition Marketing Efforts ................................... 7 C. The Debtors’ Bidding Procedures ............................................................................... 8 D. The Auction ................................................................................................................ 9 III. RELIEF REQUESTED ........................................................................................................... 10 A. The Assets ................................................................................................................... 11 B. The Stalking Horse Agreement ................................................................................... 12 C. The Sale Hearing ......................................................................................................... 13 D. Assumption and Assignment of Contracts .................................................................. 14 IV. BASIS FOR RELIEF REQUESTED...................................................................................... 15 A. There is a Good Business Reason for the Sale, and the Sale is in the Best Interest of the Estate and Creditors ............................................................................. 16 B. The Assets May Be Sold Free and Clear of Liens, Claims and Interests 17 Pursuant to Section 363(f) of the Bankruptcy Code ................................................... 18 C. If the Debtors Consummate the Sale of the Assets, Such Assets Should be Sold or Assumed Free and Clear of Successor Liability. ........................................... 19 D. Purchasers Should be Afforded Protections Under Section 363(m) of the 20 Bankruptcy Code ........................................................................................................ 21 E. The Assumption and Assignment of the Assignable Contracts in Connection with the Sale Satisfies Section 365 of the Bankruptcy Code ...................................... 22 F. The Debtors Have Complied with B.L.R. 6004-1 ...................................................... 23 G. No Consumer Ombudsman is Needed ........................................................................ 24 H. Waiver of Stay Under Bankruptcy Rules 6004(h) and 6006(d) ................................. 25 V. RESERVATION OF RIGHTS ............................................................................................... 26 VI. NOTICE .................................................................................................................................. 27

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1 TABLE OF AUTHORITIES 2 Pag 3 Cases 4 240 N. Brand Partners, Ltd. v. Colony GFP Partners, L.P. (In re 240 N. Brand 5 Partners, Ltd.), 200 B.R. 653 (9th Cir. BAP 1996) ...................................................................... 6 In re AbitibiBowater Inc., 418 B.R. 815 (Bankr. D. Del. 2009) ............................................................................................. 7 In re Art & Architecture Books of the 21st Century, 8 No. 2:13-BK-14135-RK, 2013 WL 4874342 (Bankr. C.D. Cal. Sept. 12, 2013)......................... 9 In re AWTR Liquidation Inc., 548 B.R. 300 (Bankr. C.D. Cal. 2016) .......................................................................................... 10 11 In re Bygaph, Inc., 56 B.R. 596 (Bankr. S.D.N.Y. 1986) .......................................................................................12,12 In re Catalina Sea Ranch, LLC, 13 No. 2:19-BK-24467-NB, 2020 WL 1900308 (Bankr. C.D. Cal. Apr. 13, 2020) ......................... 14 Citicorp Homeowners Serv., Inc. v. Elliot (In re Elliot), 94 B.R. 343 (E.D. Pa. 1988) ....................................................................................................12,15 16 Comm. of Equity Sec. Holders v. Lionel Corp. (In re Lionel Corp.), 722 F.2d 1063 (2d Cir. 1983)........................................................................................................ 17 In re Dura Auto. Sys., Inc., 18 No. 06-11202 KJC, 2007 WL 7728109 (Bankr. D. Del. Aug. 15, 2007) ..................................... 19 Fin. Assoc. v. Loeffler (In re Equitv Fundinq Corp. of Am.), 492 F.2d 793 (9th Cir. 1974) ........................................................................................................ 20 In re Fleming Cos., Inc., 21 499 F.3d 300 (3d Cir. 2007).......................................................................................................... 22 FutureSource LLC v. Reuters Ltd., 23 312 F.3d 281 (7th Cir. 2002) ........................................................................................................ 24 Hargrave v. Twp. of Pemberton (In re Tabone, Inc.), 175 B.R. 855 (Bankr. D.N.J. 1994) .............................................................................................. 25 In re Huntington, Ltd., 26 654 F.2d 578 (9th Cir. 1981) ........................................................................................................ 27 Mich. Emp’t Sec. Comm’n v. Wolverine Radio Co. (In re Wolverine Radio Co.),

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1 In re Natco Indus., Inc., 54 B.R. 436 (Bankr. S.D.N.Y. 1985) ............................................................................................ 2 Official Comm. of Subordinated Bondholders v. Integrated Res., Inc. (In re Integrated 3 Res., Inc.), 4 147 B.R. 650 (S.D.N.Y. 1992) ...................................................................................................... 5 Orion Pictures Corp. v. Showtime Networks, Inc. (In re Orion Pictures Corp.), 4 F.3d 1095 (2d Cir. 1993)............................................................................................................ 6 In re Philadelphia Newspapers, LLC, 7 424 B.R. 178 (Bankr. E.D. Pa. 2010) ........................................................................................... 8 In re Pomona Valley Med. Grp., Inc., 476 F.3d 665 (9th Cir. 2007) ........................................................................................................ 9 10 In re PW, LLC, 391 B.R. 25 (9th Cir. BAP 2008) ................................................................................................. 11 SEC v. Capital Cove Bancorp LLC, 12 No. 15-00980, 2015 U.S. Dist. LEXIS 186531 (C.D. Cal. Nov. 19, 2015) ................................. 13 Sharon Steel Corp. v. Nat’l Fuel Gas Distrib. Corp., 872 F.2d 36 (3d Cir. 1989)............................................................................................................ 14 15 Summit Land Co. v. Allen (In re Summit Land Co.), 13 B.R. 310 (Bankr. D. Utah 1981) .............................................................................................. 16 In re Trans World Airlines, Inc., 17 322 F.3d 283 (3d Cir. 2003).....................................................................................................12,18 Volvo White Truck Corp. v. Chambersburg Beverage, Inc. (In re White Motor Credit Corp.), 19 75 B.R. 944 (Bankr. N.D. Ohio 1987) .......................................................................................... 20 In re Walter, 21 83 B.R. 14 (B.A.P. 9th Cir. 1988)............................................................................................10,22 In re X10 Wireless Tech., Inc., No. BAP WW-04-1328-PST, 2005 WL 6960205 (B.A.P. 9th Cir. Apr. 5, 2005) ....................... 23 24 25 26 27

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1 Statutes 2 11 U.S.C. § 105(a) .........................................................................................................................10,§ 363(b) ..............................................................................................................................10, 11,3 § 363(b)(1) .................................................................................................................................... 4 § 363(f).....................................................................................................................................12,§ 363(f)(2) ..................................................................................................................................... 5 § 363(f)(5) ..................................................................................................................................... § 363(m) ........................................................................................................................................ 6 § 363(n) ......................................................................................................................................... § 365.........................................................................................................................................14,7 § 365(a) ....................................................................................................................................14,8 § 365(b)(1) .................................................................................................................................... § 365(b)(3) .................................................................................................................................... 9 § 365(f)(1) ................................................................................................................................17,§ 365(f)(2) ..................................................................................................................................... 10 § 365(f)(3) ..................................................................................................................................... § 365(k) ......................................................................................................................................... 11 § 544(a) ......................................................................................................................................... 12 § 1107(a) ....................................................................................................................................... § 1108............................................................................................................................................ 13 28 U.S.C. § 157(b) .............................................................................................................................. 14 § 1334............................................................................................................................................ § 1408............................................................................................................................................ 15 § 1409............................................................................................................................................ 16 Other Authorities 17 Fed. R. Bankr. P. 1015(b) ................................................................................................................... 18 2002............................................................................................................................................... 6004(h) .......................................................................................................................................... 19 6006(d) .......................................................................................................................................... 20 B.L.R. 2002-1 ..................................................................................................................................... 21 5011-1 ........................................................................................................................................... 6004-1 ......................................................................................................................................17,22 6006-1 ........................................................................................................................................... 23 24 25 26 27

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1 MEMORANDUM OF POINTS AND AUTHORITIES 2 I. JURISDICTION 3 The United States Bankruptcy Court for the Northern District of California (this “Court”) 4 jurisdiction to consider this matter pursuant to 28 U.S.C. §§ 157 and 1334, the Order Referr 5 Bankruptcy Cases and Proceedings to Bankruptcy Judges, General Order 24 (N.D. Cal.), 6 Bankruptcy Local Rule 5011-1. This is a core proceeding pursuant to 28 U.S.C. § 157(b). Venu7 proper before the Court pursuant to 28 U.S.C. §§ 1408 and 1409. 8 II. BACKGROUND 9 A. General Background 10 On April 27, 2020 (the “Petition Date”), each of the Debtors filed a voluntary petition for re11 under the Bankruptcy Code in this Court. The Debtors continue to operate their business and man12 their properties as debtors in possession pursuant to sections 1107(a) and 1108 of the Bankrup13 Code. No party has requested the appointment of a trustee or examiner in these Chapter 11 Ca14 The Debtors’ Chapter 11 Cases are being jointly administered for procedural purposes only pursu15 to Bankruptcy Rule 1015(b). 16 On May 18, 2020, the United States Trustee (the “U.S. Trustee”) appointed an Offi17 Committee of Unsecured Creditors (the “Committee”). 18 Additional information regarding the Debtors’ business, capital structure, and 19 circumstances preceding the Petition Date may be found in the Declaration of Lawrence R. Perkin20 Support of the Debtors’ Chapter 11 Petitions and First Day Pleadings [Dkt. No. 15] (the “First 21 Declaration”), filed on the Petition Date and incorporated herein by reference. 22 B. The Debtors’ Prepetition and Post-Petition Marketing Efforts 23 For months prior to the Petition Date, the Debtors explored various strategic alternati24 ranging from raising or financing capital to selling some or all of the Debtors assets (the “Assets25 Although the Debtors received various indications of interest (“IOIs”), the Debtors struggled in 26 marketplace, finding that the liabilities that accrued during the commercialization efforts of previ27

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1 years were too great to attract the needed liquidity infusion2 and ultimately did not receiv2 satisfactory offer prepetition. 3 Since the commencement of these cases, the Debtors have pursued a dual-track strat4 involving either a refinancing of the company’s current capital structure (the “Restructuring”),35 described in more detail in the Plan,4 or a sale of substantially all of the Assets to one or more t6 parties (any such sale, a “Sale”). 7 In furtherance of the Sale track, the Debtors retained Armory Securities, LLC (“Arm 8 Securities”) as its investment banker in August 2020 to assist the Debtors in continuing to market 9 Assets and establish a sale process designed to generate maximum value for all parties in interest. 10 Despite Armory Securities’ exhaustive efforts to market the Debtors’ Assets in a val11 maximizing manner within the time constraints posed by the Debtors’ liquidity crunch, by the en12 November, none of the IOIs met the $52.5 million minimum bid required for an auction as set fort13 the Fifth Amended Disclosure Statement for the Joint Chapter 11 Plan of Reorganization for W14 Computing, Inc. and its Debtor Affiliates [Dkt. No. 848] (the “Disclosure Statement”).6 Accordin15 the Debtors determined it was in the best interest of the estates to move forward with the Restructuri16 and on November 20, 2020, this Court, after notice and a hearing, approved the Disclosure Stateme17 It was not until after the hearing to approve the Disclosure Statement that a certain poten18 purchaser (the “Stalking Horse Bidder” or “Purchaser”) began discussions in earnest with Arm19 Securities regarding a proposed competitive bid to purchase the Debtors’ Assets. 8 The Stalking Ho20 2 Id. 21 3 Notwithstanding anything to the contrary herein, the Debtors reserve all rights with respect to Restructuring, including the right to confirm the Plan (as defined herein) through the Restructurin22 4 See Fourth Amended Joint Chapter 11 Plan of Reorganization for Wave Computing, Inc. and23 Debtor Affiliates [Dkt. No. 846] (as may be further amended, the “Plan”). 5 See Debtors’ application to retain and employ Armory Securities as their investment banker [24 No. 495] (the “Armory Retention Application”), the declarations of Sandeep Prabhakar and ThoG. FitzGerald in support of the Armory Retention Application [Dkt. Nos. 496, 641], and the or25 approving the Armory Retention Application [Dkt. No. 688]. 26 6 Id. 7 See Order (I) Approving the Adequacy of the Fifth Amended Disclosure Statement, and (II) Grant27 Related Relief [Dkt. No. 859].

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1 Bidder signed a non-disclosure agreement on November 26, 2020 and submitted its initial bid2 purchase substantially all of the Assets during the first week of December.9 The Debtors determi3 that the Stalking Horse Bidder offered terms superior to those of the Restructuring and that an Auct4 would be conducted as described in the Disclosure Statement.10 5 C. The Debtors’ Bidding Procedures 6 In the first three weeks of December 2020, Armory Securities, along with the Debtors and t7 other professional advisors, engaged in extensive, arms-length negotiations with the Stalking H 8 Bidder. These negotiations culminated in the parties’ entry into that certain purchase agreement da 9 December 10, 2020 (as may be amended from time to time, the “Stalking Horse Agreement”10 pursuant to which the Stalking Horse Bidder proposes to acquire the Debtors’ Assets 11 approximately $57,500,000.12 12 In connection with this competitive offer, the Debtors determined it was in the best interes13 the estates to proceed with an auction (the “Auction”) to solicit higher or otherwise better b14 Accordingly, the Debtors formulated certain bidding procedures (the “Bidding Procedures”), wh15 allowed the Debtors to continue to market the Assets for sale to potential purchasers other than 16 Stalking Horse Bidder and solicit Qualified Bids from Qualified Bidders13 to obtain the highes17 otherwise best value of the Assets for the estates.14 18 On December 17, 2020, the Court entered an order [Dkt. No. 940] (the “Bidding Proced19 Order”) approving the Bidding Procedures and certain provisions of the Stalking Horse Agreement20 an interim basis, including each party’s right to terminate the Stalking Horse Agreement if the clos21 has not occurred by a certain date (the “Sale Termination Date”). 22 9 Id. 23 10 See Disclosure Statement, § II.B. 24 11 A redacted copy of the Stalking Horse Agreement is attached as Exhibit 2 to Bidding ProcedOrder. 25 12 See Bidding Procedure Motion, Ex. A-2 at § 3.1. 26 13 Except as otherwise noted, capitalized terms used but not otherwise defined herein shall have meanings ascribed to them in the Bidding Procedures Order (as defined herein), including any exhi27 thereto.

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1 D. The Auction 2 On December 21, 2020, the Debtors commenced the Auction via videoconference pursuan3 the Bidding Procedures, having received only two Qualified Bids—the Stalking Horse Agreement 4 the Plan. Tallwood Technology Partners LLC (“Tallwood”), a Qualified Bidder, submitted an Over5 comprised of certain improvements to the value of the Plan, including an additional $7.2 millio6 cash. The Debtors did not receive a further Overbid from the Stalking Horse Bidder (i.e., the ot 7 Qualified Bidder). Therefore, the Debtors, as an exercise of their business judgment and in accorda8 with any consent and/or consultation rights provided for in the Bidding Procedures Order, selec 9 Tallwood as the Successful Bidder and the Stalking Horse Bidder as the Backup Bidder at 10 conclusion of the Auction on December 22, 2020.15 11 The time periods negotiated by the Stalking Horse Bidder and the Debtors are intende12 ensure a swift close to these Chapter 11 Cases. Failure to adhere to such time periods would jeopar13 the closing of the Sale, which the Debtors believe is the best means of maximizing the value of t14 Assets if the Plan either cannot be confirmed or does not go effective by a certain outside d15 Accordingly, in the interest of best preserving the value of the Debtors’ estates, the Debtors req16 this Court enter the Sale Order authorizing but not directing the Debtors to promptly proceed to cl17 the Sale with the Stalking Horse Bidder in the event of and only after the occurrence of the P18 Termination Date. 19 The Plan Termination Date shall occur if the board of directors of Wave (the “Board”) 20 solely in the event that a conflict of interest precludes the Board from making the decision, the Debt21 Chief Restructuring Officer) (in either case, the “Decision Maker”) determines it its reasona22 business judgment, with the consent of the Committee, which consent shall not be unreasona23 withheld, conditioned, or delayed, that there is a material risk that effectiveness of the Plan (the “P24 Effective Date”) will not occur on or prior to March 1, 2021.16 The Decision Maker shall make 25 26 15 See Notice of Designation of Successful Bidder and Backup Bidder [Dkt. No. 965] (the “NoticSuccessful Bidder”). 27 16 Paragraph 11 of the Bidding Procedures provides that the Decision Maker shall be authorized,

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1 determination no later than February 22, 2021, or such later date as (i) the Debtors shall determ2 with the consent of the Committee, which consent shall not be unreasonably withheld, conditioned3 delayed; or (ii) shall be set by further order of the Court. 4 III. RELIEF REQUESTED 5 By this Motion, the Debtors request the entry of the Sale Order conditionally (i) authoriz6 the sale of the Debtors’ Assets (as defined below) free and clear of all liens, claims, encumbran7 and other interests; (ii) approving the Stalking Horse Agreement; (iii) authorizing the assumption 8 assignment of executory contracts and unexpired leases; and (iv) granting related relief. With res9 to the relief described in (i) to (iii), the Debtors request that such relief only go into effect if the P10 Termination Date occurs. 11 A. The Assets 12 As set forth more fully in the First Day Declaration, the Debtors are a technology comp13 that focuses on developing artificial intelligence solutions and licensing intellectual property cores14 embedded microprocessors used in a variety of technology applications. The Assets the Debtors 15 proposing to sell are therefore comprised primarily of, but are not limited to, (i) Receivables; 16 Intellectual Property and the rights thereto; (iii) Intellectual Property Licenses and the rights ther17 (iv) Inventory; (v) Products, (including those set forth on Schedule 2.1(d) of the Stalking H18 Agreement, as such schedule may be supplemented pursuant to the Stalking Horse Agreement); 19 customer deposits and security deposits for rent; and (vii) Equipment (as each such term is define20 the Stalking Horse Agreement). The Debtors will not be selling those Excluded Assets and Exclu21 Liabilities as defined in the Stalking Horse Agreement in Sections 2.2 and 2.4, respectively. 22 B. The Stalking Horse Agreement 23 If the Plan Termination Date occurs, the Decision Maker shall deem the Stalking H24 Agreement (which was not the Successful Bid after the Auction) the Successful Bid, and the Debt25 shall seek to close the Sale transaction contemplated in the Stalking Horse Agreement attached26 Exhibit 2 to the Bidding Procedures Order in its entirety. For purposes of this Motion, the 27 fails to consummate the Successful Bid transaction by the applicable closing deadline, (ii) breac

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1 provisions and aspects of the Stalking Horse Agreement are summarized in the following chart.17 2 MATERIAL TERMS OF THE STALKING HORSE AGREEMENT 3
Table 1 on page 13. Back to List of Tables
Purchase Price
Agreements with
Management
Releases
Closing and Other Deadlines
25 26 17 Capitalized terms used but not otherwise defined in connection with this summary shall have meanings ascribed to such terms in the Stalking Horse Agreement. The description of the Stalk27 Horse Agreement is intended as a summary only. Unless expressly stated otherwise, to the extent tthere is any discrepancy between this summary and the Stalking Horse Agreement, the terms of

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Table 1 on page 14. Back to List of Tables
Good Faith Deposit
Interim Arrangements with
Proposed Purchaser
Tax Exemption
Sale of Avoidance Actions
Successor or Transferee
Liability
Relief from
Bankruptcy Rule
6004(h)
Bid
Protections to
Stalking Horse Bidder
C. The Sale Hearing 22 The Debtors request that this Court schedule a hearing to consider the conditional re23 requested herein (the “Sale Hearing”) on or as soon as reasonably practicable after February 18, 2024 Approval of the Sale transaction as requested herein is critical to ensure the Debtors and the Stalk25 Horse Bidder have sufficient time to satisfy the conditions to closing, including obtaining 26 Consents required pursuant to the Stalking Horse Agreement,18 and consummate the transaction p27

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1 to the Sale Termination Date.19 2 D. Assumption and Assignment of Contracts 3 To facilitate and effect the Sale of the Assets, the Debtors seek authority to assume and ass4 certain of the Debtors’ contracts and unexpired leases (collectively, the “Assignable Contrac5 consistent with the procedures established in the Bidding Procedures Order (the “Assumption 6 Assignment Procedures”). 7 The Assumption and Assignment Procedures, including potential cure amounts, can 8 summarized as follows: 9 (a) Assumption and Assignment Notice. On December 21, 2020 and January 4, 20respectively, the Debtors filed and served a Notice of Possible Assumption 10 Assignment and Cure Amounts With Respect To The Executory Contracts 11 Unexpired Leases and a Notice of Amended Schedule of Executory Contracts Unexpired Leases for Possible Assumption and Assignment of Cure Amounts (as 12 be further amended from time to time, the “Assumption and Assignment Notice”)all non-Debtor parties to the agreements listed therein (and any counsel appearing13 their behalf in these Chapter 11 Cases). The Assumption and Assignment Notidentifies the agreements proposed to be potentially assumed and assigned (14 “Assignable Contracts”), and provides the cure amounts that the Debtors believe 15 be paid to cure all prepetition defaults under such Assignable Contracts (each a “CAmount” and, collectively, the “Cure Amounts”). 16 (b) Notice of Adequate Assurance. In the event the Debtors seek to close the Sale to 17 Stalking Horse Bidder, the Debtors shall provide prompt written notice to all potentiaffected counterparties. Furthermore, the Stalking Horse Bidder shall provide adeq18 assurance information to the Debtors consistent with the information required by 19 Bidding Procedures, and the Debtors shall serve it on all of the counterparties to Debtors’ Assignable Contracts and any counsel appearing on their behalf in th20 Chapter 11 Cases either via e-mail, facsimile, or first class mail as soon as reasonapracticable.20 21 (c) Reservation of Rights. The inclusion of a contract, lease or other agreement on22 Assumption and Assignment Notice shall not constitute or be deemed a determinator admission by the Debtors and their estates or any other party in interest that s23 contract, lease or other agreement is, in fact, an executory contract or unexpired le24 within the meaning of the Bankruptcy Code, and all rights of the Debtors and t 25 19 See Stalking Horse Agreement, § 4.4. 26 20 Here, in order to avoid confusion, the Debtors do not deem it practicable for the Stalking HBidder to provide any such notice of adequate assurance unless and until this Motion is approved 27 the Plan Termination Date occurs. Contract counterparties will be notified of the identity of Stalking Horse Bidder within one (1) day after the Decision Maker deems the Stalking H

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1 estates with respect thereto are reserved. Furthermore, the inclusion of any contrlease or other agreement on the Assumption and Assignment Notice shall not b2 guarantee that such contract, lease or other agreement ultimately will be assumeassumed and assigned. 3 4 (d) Amendments to the Assumption and Assignment Notice. Prior to the closing of Sale, the Debtors may amend the Assumption and Assignment Notice, includ5 without limitation amendment of any Cure Amount, and may make a determination to assume certain contracts or unexpired leases. 6 (e) Objections. Any objection to the Cure Amount or to the potential assumption 7 assignment to the Stalking Horse Bidder, including with respect to adequate assuraof future performance of the Stalking Horse Bidder (collectively, a “Cont 8 Objection”), must be filed with this Court, together with proof of service, on or bef9 4:00 p.m. (prevailing Pacific Time) on the applicable Contract Objection Deadlinedefined below), and served, so as to be received the same day as the objection is fil10 to (i) the Debtors, Wave Computing, Inc., 3201 Scott Blvd, Santa Clara, CA 95(Attn: Sanjai Kohli, skohli@wavecomp.com) and SierraConstellation Partners L11 355 S. Grand Ave., Suite 1450 Los Angeles, CA 90071 (Attn: Lawrence R. Perk12 lperkins@scpllc.com); (ii) counsel to the Debtors, Sidley Austin LLP, 555 W. 5th Suite 4000, Los Angeles, CA 90013 (Attn: Samuel A. Newm13 sam.newman@sidley.com and Genevieve Weiner, gweiner@sidley.com); (iii) couto the Committee; (iv) the Office of the U.S. Trustee Region 17 (Attn: Jason B. Shor14 Esq. and Jason Blumberg, Esq.); and (v) counsel to the Stalking Horse Bidder at address provided in the applicable Purchase Agreement (collectively, the “Cont15 Objection Notice Parties”). 16 The non-Debtor counterparty must file and serve a Contract Objection in accorda17 with the procedures described above (i) within seven (7) days after the Debtors file amended Assumption and Assignment Notice adding an Assignable Contract18 decreasing any proposed Cure Amount; or (ii) in the event the Decision Maker deethe Stalking Horse Agreement (which was not the Successful Bid after the Aucti19 the Successful Bid, within three (3) Business Days after the non-Debtor counterpis notified (in either case, the “Contract Objection Deadline”). In the event the Debt20 amend the Assumption and Assignment Notice to decrease the Cure Amount of21 Assignable Contract previously included, any such Contract Objection shall be limito the Cure Amount only. In the event the Decision Maker deems the Stalking H22 Agreement (which was not the Successful Bid after the Auction) the Successful the basis of any such Contract Objection shall be limited to any changed circumstan23 regarding the proposed Cure Amount or adequate assurance. 24 Any Contract Objection must state the basis for such objection and state with specifi25 what Cure Amount the party to the Assignable Contract believes is required (in all cawith appropriate documentation in support thereof). If no Contract Objection is tim26 received, the Cure Amount set forth in the Assumption and Assignment Notice sbe controlling, notwithstanding anything to the contrary in the Assignable Contrac27 other documents as of the date of the Assumption and Assignment Notice.

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1 Unless a non-Debtor party to any Assignable Contract files an objection to the CAmount by the applicable Contract Objection Deadline, then such counterparty s2 be (i) forever barred from objection to the Cure Amount; and (ii) forever barred estopped from asserting or claiming any Cure Amount, other than the Cure Amount3 the schedule of the Assumption and Assignment Notice, against the Debtors, 4 Stalking Horse Bidder, or any other assignee of the relevant contract, lease or otagreement. 5 Unless a non-Debtor party to any Assignable Contract files a timely objection to 6 potential assumption and assignment of its contract to the Stalking Horse Bidder, tsuch counterparty shall be deemed to have consented to the assumption and assignm7 to the Stalking Horse Bidder and shall be forever barred from objecting to 8 assumption and assignment of its contract or lease on any basis. 9 (f) Consequence of the Sale Order. If the Plan Termination Date occurs, entry of the Order shall have the effect of liquidating on a final basis all Cure Amounts that w10 not objected to and all Cure Amounts previously disputed that were consensuresolved prior to the Sale Hearing, and each counterparty whose Cure Amount is11 liquidated shall be barred from asserting any additional cure or other amounts aga12 the Debtors or their estates with respect to its executory contract or unexpired lease,the time period ending on the date of the filing of the Assumption and Assignm13 Notice. 14 IV. BASIS FOR RELIEF REQUESTED 15 A. There is a Good Business Reason for the Sale, and the Sale is in the Best Interof the Estate and Creditors 16 Pursuant to section 105(a) of the Bankruptcy Code, a “[c]ourt may issue any order, proces17 judgment that is necessary or appropriate to carry out the provisions of this title.”21 Section 363(b18 the Bankruptcy Code provides that a debtor, “after notice and a hearing, may use, sell, or lease, ot19 than in the ordinary course of business, property of the estate.”22 Although section 363(b) does 20 specify a standard for determining when it is appropriate for a court to authorize the use, sale or le21 of property of the estate, courts have required that such use, sale or lease be based upon the so22 business judgment of the debtor.23 The Ninth Circuit has adopted a flexible case-by-case tes23 21 11 U.S.C. § 105(a). 24 22 11 U.S.C. § 363(b). 25 23 See Comm. of Equity Sec. Holders v. Lionel Corp. (In re Lionel Corp.), 722 F.2d 1063, 1070(2d Cir. 1983); In re Catalina Sea Ranch, LLC, No. 2:19-BK-24467-NB, 2020 WL 1900308, at26 (Bankr. C.D. Cal. Apr. 13, 2020) (citing In re Lionel Corp in finding sufficient business justificatfor the sale of most of the debtor’s assets); see also In re Walter, 83 B.R. 14, 19 (B.A.P. 9th Cir. 1927 (citing In re Lionel Corp, 722 F.2d at 1071) (implicitly adopting the “sound business judgment”

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1 determine whether the business purpose for a proposed sale justifies disposition of property of 2 estate under Section 363(b).24 3 The demonstration of a valid business justification by a debtor leads to a strong presumpt4 “that in making [the] business decision the directors of a corporation acted on an informed basis5 good faith and in the honest belief that the action taken was in the best interests of the company.”2 6 If the Restructuring is not successfully consummated and the Debtors ultimately elect7 proceed to consummate a Sale with the Stalking Horse Bidder, the Debtors’ decision will result fr8 reasonable exercise of the Debtors’ business judgment and, accordingly, such a Sale should9 approved under sections 105(a) and 363(b) of the Bankruptcy Code. The Debtors conducted10 extensive process to market the Assets both pre- and post-petition. The open and fair Sale proc11 ensured that the Debtors’ estates would receive the highest or otherwise best value available for 12 Assets by allowing the market to determine their value. Furthermore, compliance with the Bidd13 Procedures ensured the fairness and reasonableness of the consideration to be paid by either Tallw14 or the Stalking Horse Bidder, and establish that the Debtors and such bidders have proceeded in g15 faith. 16 Pursuant to this thorough, court-approved process, Debtors determined that the Stalking H17 Agreement represents the best path forward for maximizing recoveries to the Debtors’ estates, 18 Debtors’ creditors, and all parties in interest if the Restructuring falls through and the Plan is not tim19 confirmed and consummated. As such, the Debtors designated the Stalking Horse Bidder as 20 Backup Bidder, putting all parties in interest on notice of the possibility of moving forward with 21 Sale.26 In light of the Debtors’ need to move forward with a transaction and conclude these Cha 22 of Am.), 492 F.2d 793 (9th Cir. 1974) (sale of assets approved for "cause shown"); 240 N. BrPartners, Ltd. v. Colony GFP Partners, L.P. (In re 240 N. Brand Partners, Ltd.), 200 B.R. 653, 23 (9th Cir. BAP 1996) (“debtors who wish to utilize § 363(b) to dispose of property of the estate mdemonstrate that such disposition has a valid business justification”). 24 24 See In re Huntington, Ltd., 654 F.2d 578 (9th Cir. 1981); In re Walter, 83 B.R. 14, 19-20 (9th 25 B.A.P. 1988). 25 See In re AWTR Liquidation Inc., 548 B.R. 300, 313 (Bankr. C.D. Cal. 2016) (citing Gantle26 Stephens, 965 A.2d 695, 708 (Del.2009)); Official Comm. of Subordinated Bondholders v. IntegraRes., Inc. (In re Integrated Res., Inc.), 147 B.R. 650, 656 (S.D.N.Y. 1992) (quoting Smith v. 27 Gorkom, 488 A.2d 858, 872 (Del. 1985)).

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1 11 Cases as soon as possible—as well as the fast-approaching Sale Termination Date—the Debt2 need the flexibility to potentially pivot to a closing of the Sale without delay if the Plan will not3 consummated. The Debtors submit that ample business justification exists for the consummatio 4 Sale along this proposed timeline and therefore request that the Court approve such Sale as alternat5 relief to the consummation of the Plan. 6 B. The Assets May Be Sold Free and Clear of Liens, Claims and Interests Pursuato Section 363(f) of the Bankruptcy Code 7 Section 363(f) of the Bankruptcy Code authorizes a debtor to sell assets free and clear of li8 claims, interests and encumbrances if: 9 (1) applicable nonbankruptcy law permits sale of such property free and 10 clear of such interest; (2) such entity consents; (3) such interest is a lien and the price at which such property is to be sold is greater than the 11 aggregate value of all liens on such property; (4) such interest is in bona 12 fide dispute; or (5) such entity could be compelled, in a legal or equitable proceeding, to accept a money satisfaction of such interest.27 13 14 This provision is supplemented by section 105(a) of the Bankruptcy Code, which provides that “[t15 court may issue any order, process or judgment that is necessary or appropriate to carry out 16 provisions of [the Bankruptcy Code].”28 17 Section 363(f) of the Bankruptcy Code is drafted in the disjunctive, and thus satisfactio18 any one of its five requirements will suffice to permit the sale of the Assets “free and clear” of li19 and interests.29 Furthermore, a debtor possesses broad authority to sell assets free and clear of lien20 and courts have held that they have the equitable power to authorize sales free and clear of inter21 22 23 27 11 U.S.C. § 363(f). 24 28 11 U.S.C. § 105(a). 25 29 SEC v. Capital Cove Bancorp LLC, No. 15-00980, 2015 U.S. Dist. LEXIS 186531, at *4-5 (CCal. Nov. 19, 2015); Citicorp Homeowners Serv., Inc. v. Elliot (In re Elliot), 94 B.R. 343, 345 (E26 Pa. 1988) (same); see also Mich. Emp’t Sec. Comm’n v. Wolverine Radio Co. (In re Wolverine RaCo.), 930 F.2d 1132, 1147 n.24 (6th Cir. 1991) (same); In re Bygaph, Inc., 56 B.R. 596, 606 27 (Bankr. S.D.N.Y. 1986) (same).

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1 that are not specifically covered by section 363(f).31 2 The Sale free and clear of liens, claims, interests, and other encumbrances, if any, other t3 certain assumed liabilities, is necessary to maximize the value of the Assets. A sale of the Assets ot4 than one free and clear of all interests except for such assumed liabilities would provide less certai5 and yield substantially less value for the Debtors’ estates. 6 Moreover, with respect to any other party asserting a lien, claim, or encumbrance against 7 Assets, the Debtors anticipate that they will be able to satisfy one or more of the conditions set f8 in section 363(f) of the Bankruptcy Code. In particular, known lienholders will receive notice 9 will be given sufficient opportunity to object to the relief requested. Such lienholders that do 10 object to the Sale should be deemed to have consented.32 Consistent with the foregoing, as set f11 in the Sale Order, in the absence of a timely objection to the sale of the Assets in accordance there12 shall be “consent” to such sale within the meaning of section 363(f)(2) of the Bankruptcy Code. 13 To the extent a party asserting a lien, claim, or encumbrance against the Assets objects, 14 Debtors believe that any such party could be compelled to accept a monetary satisfaction of s15 claims or that such lien is in bona fide dispute.33 Additionally, the Debtors believe that the Sale of 16 Assets free and clear is permitted under applicable non-bankruptcy law pursuant to section 363(f)17 C. If the Debtors Consummate the Sale of the Assets, Such Assets Should be SoldAssumed Free and Clear of Successor Liability. 18 The term “interest” in Bankruptcy Code section 363(f) is given a broad meaning, wh19 encompasses among other things claims that a pre-petition creditor may make against the purch20 21 22 31 See In re Dura Auto. Sys., Inc., No. 06-11202 KJC, 2007 WL 7728109, at *1 (Bankr. D. Del. A23 15, 2007); Volvo White Truck Corp. v. Chambersburg Beverage, Inc. (In re White Motor CrCorp.), 75 B.R. 944, 948 (Bankr. N.D. Ohio 1987). 24 32 See FutureSource LLC v. Reuters Ltd., 312 F.3d 281, 285–86 (7th Cir. 2002) (“[L]ack of object(provided of course there is notice) counts as consent. It could not be otherwise; transaction c25 would be prohibitive if everyone who might have an interest in the bankrupt’s assets had to execuformal consent before they could be sold.”) (internal citations omitted); Hargrave v. Twp. 26 Pemberton (In re Tabone, Inc.), 175 B.R. 855, 858 (Bankr. D.N.J. 1994) (holding that creditor’s failto object to sale free and clear of liens, claims and encumbrances satisfies section 363(f)(2)); I27 Elliot, 94 B.R. at 345 (same).

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1 of a debtor’s assets based upon a successor liability theory.34 2 The purchaser of the Assets is unlikely to be liable for any of the Debtors’ liabilities a3 successor to the Debtors’ business or otherwise, unless the purchaser(s) expressly assumes s4 liabilities. Extensive case law provides that claims against the winning bidder are directed to 5 proceeds of a free and clear sale of property and may not subsequently be asserted against a buyer 6 As described above, the Purchaser is assuming significant liabilities of the Debtors, and 7 Debtors will receive or retain assets with which to satisfy creditor claims. Accordingly, the Debt8 submit that it would be appropriate for this Court to determine that the Purchaser will not h9 successor liability to any of the Debtors’ employee, customer, or tax creditor that receives notic10 the Sale. 11 D. Purchasers Should be Afforded Protections Under Section 363(m) of the Bankruptcy Code 12 Under the circumstances, the Stalking Horse Bidder should be afforded protections that sect13 363(m) of the Bankruptcy Code provides to a good faith purchaser. The auction procedures w14 designed to prevent the Debtors or the Stalking Horse Bidder from engaging in any conduct that wo15 cause or permit the Stalking Horse Agreement or the Sale to be avoided under section 363(n) of 16 Bankruptcy Code. All creditors and parties in interest will receive notice of the hearing on this Mot17 and will be provided with an opportunity to be heard. The Debtors submit that such notice is adeq18 for entry of the Sale Order approving the Sale of Assets pursuant to the Stalking Horse Agreement 19 satisfies the requisite notice provisions required under section 363(b) of the Bankruptcy Co20 Accordingly, the Stalking Horse Bidder should be afforded protections under section 363(m) of 21 Bankruptcy Code if the Debtors move forward with the Sale. 22 E. The Assumption and Assignment of the Assignable Contracts in Connection 23 with the Sale Satisfies Section 365 of the Bankruptcy Code 24 Section 365(a) of the Bankruptcy Code provides, in pertinent part, that a debtor in possessi25 26 34 In re PW, LLC, 391 B.R. 25, 26 (9th Cir. BAP 2008) (Congress intended “interest” to have a brmeaning in Bankruptcy Code section 363(f)); see also In re Trans World Airlines, 322 F.3d at 27 (holding that order approving “free and clear” sale immunized asset purchaser from employmdiscrimination claims and customer claims asserted against purchase under a successor liabi

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1 “subject to the court’s approval, may assume or reject any executory contract or unexpired lease of 2 debtor.” 11 U.S.C. § 365(a). Further, “[t]he purpose behind allowing the assumption or rejectio3 executory contracts is to permit the trustee or debtor-in-possession to use valuable property of 4 estate and to ‘renounce title to and abandon burdensome property.”35 5 The standard applied to determine whether the assumption of a contract or an unexpired le6 should be authorized is the “business judgment” standard.36 The “business judgment” test in 7 context only requires that a debtor demonstrate that assumption or rejection of an executory cont8 or unexpired lease benefits the estate.37 9 Here, the Debtors have exercised their sound business judgment in determining t10 assumption and assignment of the Assignable Contracts in connection with the Sale would be in 11 best interests of the Debtors and their estates, and, accordingly, the Court should approve the propo12 assumption under section 365(a) of the Bankruptcy Code.38 13 As set forth above, the Debtors believe that, among all potential alternatives to 14 Restructuring, the Sale to the Stalking Horse Bidder would yield the maximum value for the Debt15 estates. To that end, the assumption, assignment and sale of the Assignable Contracts will be necess16 for the Debtors to obtain the benefits of the Stalking Horse Agreement. In addition, under sect 17 35 Orion Pictures Corp. v. Showtime Networks, Inc. (In re Orion Pictures Corp.), 4 F.3d 1095, 1(2d Cir. 1993) (quoting 2 Collier on Bankruptcy ¶ 365.01[1] (15th ed. 1993)). 18 36 See In re X10 Wireless Tech., Inc., No. BAP WW-04-1328-PST, 2005 WL 6960205, at *3 (B. 19 9th Cir. Apr. 5, 2005) (citing In re G .I. Indus., Inc., 204 F.3d 1276, 1282 (9th Cir. 2000)) (“Whetto assume or reject an executory contract is left to the business judgment of the trustee or debto20 possession.”); In re AbitibiBowater Inc., 418 B.R. 815, 831 (Bankr. D. Del. 2009) (finding thdebtor’s decision to assume or reject an executory contract will stand so long as “a reasonable busin21 person would make a similar decision under similar circumstances”). 37 See Sharon Steel Corp. v. Nat’l Fuel Gas Distrib. Corp., 872 F.2d 36, 40 (3d Cir. 1989). 22 38 See In re Pomona Valley Med. Grp., Inc., 476 F.3d 665, 670 (9th Cir. 2007) (finding bankrup23 courts should approve a debtor’s decision to reject an executory contract absent finding the decis“so manifestly unreasonable that it could not be based on sound business judgment, but only on 24 faith, or whim or caprice”) (internal citations omitted); 3 Collier on Bankruptcy P 365.03 (16th 20(citing Pomona Valley) (describing the Ninth Circuit’s broad interpretation of the business judgm25 rule in the context of executory contract rejection “and presumably, assumption as well”); see ae.g., e.g., In re Philadelphia Newspapers, LLC, 424 B.R. 178, 182–83 (Bankr. E.D. Pa. 2010) (stat26 that if a debtor’s business judgment has been reasonably exercised, a court should approve assumption or rejection of an executory contract or unexpired lease); Summit Land Co. v. Allen (I27 Summit Land Co.), 13 B.R. 310, 315 (Bankr. D. Utah 1981) (holding that, absent extraordincircumstances, court approval of a debtor’s decision to assume or reject an executory contract “sho

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1 365(k) of the Bankruptcy Code, a debtor’s assignment of a contract or lease “relieves the trustee 2 the estate from any liability for any breach of such contract or lease occurring after such assignment 3 Thus, following an assignment to the Stalking Horse Bidder of any Assignable Contract, the Debt4 will be relieved from any liability for any subsequent breach associated therewith, providing additio5 value to the estate. 6 Furthermore, section 365(b)(1) of the Bankruptcy Code requires that any outstanding defa7 under the Assignable Contracts must be cured or that adequate assurance be provided that such defa8 will be promptly cured.40 The Debtors have filed with the Court, and served on each Counterpart9 an Assignable Contract, the Assumption and Assignment Notice that indicates the proposed C10 Amount for each such contract. As such, each Counterparty has had or will have the opportunit11 object to the proposed assumption and assignment to the Stalking Horse Bidder and to the propo12 Cure Amount, if applicable. Moreover, the payment or reserve of the applicable Cure Amount,13 provided for in the Bidding Procedures, will be a condition to the Debtors’ assumption and assignm14 of any Assignable Contract. 15 Relatedly, section 365(f)(2) of the Bankruptcy Code provides that a debtor may assign16 executory contract or unexpired lease of nonresidential real property if “adequate assurance of fut17 performance by the assignee of such contract or lease is provided.”41 The words “adequate assura18 of future performance” must be given a “practical, pragmatic construction” in light of the facts 19 circumstances of the proposed assumption.42 Specifically, adequate assurance may be given 20 demonstrating the assignee’s financial health and experience in managing the type of enterprise21 22 23 39 11 U.S.C. § 365(k). 24 40 11 U.S.C. § 365(b)(1). 41 11 U.S.C. § 365(f)(2). 25 42 See In re Fleming Cos., Inc., 499 F.3d 300, 307 (3d Cir. 2007) (internal citation omitted); In re 26 & Architecture Books of the 21st Century, No. 2:13-BK-14135-RK, 2013 WL 4874342, at *8 (BaC.D. Cal. Sept. 12, 2013) (citing In Re Evelyn Byrnes, Inc., 32 B.R. 825, 828–829 (Bankr. S.D.N27 1983) (same).; see also In re Natco Indus., Inc., 54 B.R. 436, 440 (Bankr. S.D.N.Y. 1985) (findthat adequate assurance of future performance does not mean absolute assurance that debtor will thr

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1 property assigned.43 2 As set forth above and in the Bidding Procedures, the Stalking Horse Bidder must prov3 evidence supporting its ability to comply with the requirements of adequate assurance of fut4 performance under section 365(f)(2)(B) and, if applicable, section 365(b)(3) of the Bankruptcy Co5 and the Debtors shall serve notice of such information on the applicable parties. 6 Therefore, the Debtors respectfully request that the Court (i) approve the proposed assumpt7 and assignment of the Assignable contracts, and (ii) find that all anti-assignment provisions of s8 contracts to be unenforceable under section 365(f) of the Bankruptcy Code.44 9 F. The Debtors Have Complied with B.L.R. 6004-1 10 It remains possible, however, that a creditor has a basis to assert a lien against the assets 11 Debtors seek approval to sell, but has not asserted that lien against the Debtors or recorded notic12 that lien in order to perfect such lien rights. In other words, there may be potential lienholders w13 by their silence and/or lack of diligence in asserting their rights, are preventing the Debtors fr14 specifically naming them as contemplated by Bankruptcy Local Rule 6004-1. Such an entity sho15 not, by inaction, obtain greater rights against the Purchaser by asserting that the transferred as16 remain subject to its purported lien rights, especially where its unperfected lien is avoidable under17 U.S.C. § 544(a). 18 For these reasons, the Debtors submit that its identification of and service on parties set f19 in Schedule 1 represents sufficient compliance with Bankruptcy Local Rule 6004-1, and that any or20 this Court may make granting free and clear relief should be binding upon any creditor identified21 name or category that is actually served with notice of this Motion. 22 43 See In re Bygaph, Inc., 56 B.R. 596, 605–06 (Bankr. S.D.N.Y. 1986) (holding that adequassurance of future performance is given where the assignee of lease has financial resources and 23 expressed a willingness to devote sufficient funding to the business to ensure its success). 24 44 Section 365(f)(1) provides that “notwithstanding a provision in an executory contract or unexpilease of the debtor, or in applicable law, that prohibits, restricts, or conditions the assignment of s25 contract or lease, the trustee may assign such contract or lease . . . .” 11 U.S.C. § 365(f)(1). Sect365(f)(3) further provides that “notwithstanding a provision in an executory contract or unexpi26 lease of the debtor, or in applicable law that terminates or modifies, or permits a party other than debtor to terminate or modify, such contract or lease or a right or obligation under such contrac27 lease on account of an assignment of such contract or lease, such contract, lease, right, or obligatmay not be terminated or modified under such provision because of the assumption or assignmen

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1 G. No Consumer Ombudsman is Needed 2 The Debtors do not believe that the Sale will include the transfer of “personally identifia3 information” as defined in section 101(41A) and therefore no “consumer privacy ombudsman” n4 be appointed under section 363(b)(1) of the Bankruptcy Code. 5 H. Waiver of Stay Under Bankruptcy Rules 6004(h) and 6006(d) 6 Pursuant to Bankruptcy Rule 6004(h), “[a]n order authorizing the use, sale, or lease of prop7 other than cash collateral is stayed until the expiration of 14 days after entry of the order, unless 8 court orders otherwise.” Fed. R. Bankr. P. 6004(h). Furthermore, Bankruptcy Rule 6006(d) provi9 that an “order authorizing the trustee to assign an executory contract or unexpired lease under § 3610 is stayed until the expiration of 14 days after the entry of the order, unless the court orders otherwi11 Fed. R. Bankr. P. 6006(d). The Debtors request that the Sale Order be made effective as of the P12 Termination Date and provide that the fourteen (14) day stays under Bankruptcy Rules 6004(h) 13 6006(d) are waived. 14 As set forth throughout this Motion, any delay in the Debtors’ ability to consummate the 15 would be detrimental to the Debtors, their creditors and estates, and would impair the Debtors’ abi16 to maximize value of the Assets through an expeditious closing of the Sale. 17 For this reason and those set forth above, the Debtors submit that ample cause exists to jus18 a waiver of the fourteen day stay imposed by Bankruptcy Rule 6004(h) and 6006(d), to the ext19 applicable. 20 V. RESERVATION OF RIGHTS 21 Nothing contained herein is intended or shall be construed as (i) an admission as to the vali22 of any claim against the Debtors; (ii) a waiver of the Debtors’ or any party in interest’s rights to disp23 the amount of, basis for, or validity of any claim of any creditor or interest of any interest holder un24 applicable bankruptcy or nonbankruptcy law; (iii) a waiver of any claims or causes of action wh25 may exist against any creditor or interest holder; or (iv) an assumption, adoption, or rejection of 26 agreement, contract, or lease between the Debtors and any third party under section 365 of 27 Bankruptcy Code. The Debtors reserve all of their rights under the Bankruptcy Code.

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1 VI. NOTICE 2 Notice of this Motion will be provided by email, facsimile, or overnight courier to: (i) 3 Office of the U.S. Trustee Region 17 (Attn: Jason B. Shorter, Esq. and Jason Blumberg, Esq.); (ii) 4 holders of the 30 largest unsecured claims against the Debtors (on a consolidated basis); (iii) cou5 for the DIP Agent and DIP Lender; (iv) counsel to the Committee; (v) those persons who have form6 appeared in these Chapter 11 Cases and requested service pursuant to Bankruptcy Rule 2002; 7 (vi) all parties entitled to notice pursuant to Bankruptcy Rule 2002 and/or Bankruptcy Local R8 2002-1, 6004-1 or 6006-1 (the “Notice Parties”). The Debtors submit that, in light of the nature of 9 relief requested, no other or further notice is required. 10 WHEREFORE, the Debtors respectfully request entry of the Sale Order, substantially in 11 form attached hereto as Exhibit A, granting the relief requested herein and granting such other re12 as is just and proper. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

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1 Dated: January 15, 2021 Respectfully submitted, SIDLEY AUSTIN LLP 2 /s/ Samuel A. Newman 3 Samuel A. Newman 4 Genevieve G. Weiner Charles M. Persons 5 Attorneys for Debtors and 6 Debtors in Possession 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

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1 Schedule 1 2 List of Potentially Affected Lienholders And Interest Holders 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

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Schedule 1 ADAPTIVE INSIGHTS LLC ALIBABA INVESTMENT LIMITED ALL BAY FACILITIES SVC ALL BAY PAINT INC AMAZON WEB SVC INC AMERICAN POWER AND COMMUNICATIONS AMPRO ADLINK TECHNOLOGY INC ANDES TECHNOLOGY USA CORP ARAMARK REFRESHMENT SVC ARIRA DESIGN INC ARPANET TECH ARYAKA NETWORKS INC ASHLING MICROSYSTEMS LTD ASICZEN TECHNOLOGIES INDIA PVT LTD ASPENCORE LLC AT AND T ATRENET INC AUTOMATON AI INFOSYSTEM PVT LTD AVAGO TECHNOLOGIES INTL SALES PTE LTD AVERY DESIGN SYSTEMS INC AVNET INC AXIOM GLOBAL INC BAGICHA LLC BLACKTAB SOLUTIONS BWA CONSULTING LLC CA- COUNTY OF SANTA CLARA CA- DEPT OF TAX AND FEE ADMINISTRATION CA- FRANCHISE TAX BOARD CADENCE CALIFORNIA FRANCHISE TAX BOARD CANYON BRIDGE FUND I LP CAPGROWTH GROUP CENTRAL COMPUTER INC CENTURYLINK COMMUNICATIONS LLC CERTIFY INC CHIJIOKE ANYANWU CHOWMILL INC CHRISTOPHER JOHN DEARMAN CIP UNITED CO LTD CMS CAMERON MCKENNA NABARRO OLSWANG LLP COLORADO DEPT OF REVENUE COMMNOW ASIA LIMITED COMPLEX MEMORY CORPORATE SIGN SYSTEMS CORSEARCH CT CORP CYXTERA COMMUNICATIONS DANIEL BAARTS DATASITE LLC FORMERLY MERRILL CORP

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