1
Redacted portions have been marked with asterisks (****). Confidential treatment
has been requested for the redacted portions. The confidential redacted portions
have been filed separately with the Securities and Exchange Commission.
EXHIBIT 10.26
CONFIDENTIAL TREATMENT
SETTLEMENT AND RELEASE AGREEMENT
This SETTLEMENT AND RELEASE AGREEMENT (the "AGREEMENT") is made and
entered into as of the 1st day of July, 1998 (the "EFFECTIVE DATE"), by and
between WorldCom Network Services, Inc. ("WORLDCOM") and Xxxxxxxx
Communications, Inc. ("XXXXXXXX").
RECITALS:
A. WilTel, Inc. (now known as WorldCom Network Services, Inc.) and
Vyvx. Inc. (now known as Xxxxxxxx Communications, Inc.) previously entered into
that certain System Use and Service Agreement dated effective as of January 1,
1994 (the "SUSA") and that certain Statement of Settlement dated December 23,
1996 (the "SETTLEMENT STATEMENT").
B. Certain disputes have arisen between the parties under the SUSA, the
Settlement Statement and with respect to certain other matters.
C. On or about March 20, 1998, Xxxxxxxx filed a Petition for
Declaratory Relief, Money Damages, and Other Relief (the "PETITION") in a case
styled Xxxxxxxx Communications, Inc. v. WorldCom Network Services, Inc., Case
No. CJ 98-1386 (the "LAWSUIT") alleging, among other things, WorldCom's failure
to pay charges for services provided and other breaches of the SUSA and
Settlement Statement.
D. On or about May 4, 1998, WorldCom filed an Answer and a Counterclaim
in the Lawsuit (collectively referred to as the "ANSWER AND COUNTERCLAIM")
alleging, among other things, Xxxxxxxx' failure to pay charges for services
provided and other breaches of the SUSA and the Settlement Statement.
E. WorldCom denies all of Xxxxxxxx' contentions described in the
Petition and Xxxxxxxx denies all of WorldCom's contentions described in the
Answer and Counterclaim.
F. The parties hereto have determined that it is in their respective
best interests to settle the Lawsuit and certain other disputes currently
existing between the parties upon the terms and conditions set forth in this
Agreement.
2
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
contained, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, WorldCom and Xxxxxxxx agree as
follows:
1. APPLICABLE PARTIES. Unless otherwise specifically defined
differently herein, references herein to "WorldCom" and "Xxxxxxxx" will be
deemed to include such parties and all parties previously, currently or in the
future Controlling, Controlled by or under common Control with such party. For
purposes of this Agreement, "CONTROL", whether used as a noun or a verb, means
to have the power, directly or indirectly, to cause the direction of the
management or policies of another party, whether through the ownership of voting
securities, by contract, agency or otherwise.
2. XXXXXXXX FIBER.
(A) Xxxxxxxx and WorldCom acknowledge Xxxxxxxx' ownership of one (1)
single fiber (with continuation of protection switching for Xxxxxxxx
as described in Subsection 4.b. of Exhibit E, System Service
Statement, to the SUSA, the Settlement Statement and subject to
Paragraph 6 below) on the WilTel Network pursuant to the SUSA and
the Settlement Statement and defined therein as the "VYVX FIBER".
The "WILTEL NETWORK" is depicted graphically on Attachment 1 hereto
and consists of approximately 9,700 route miles. In lieu of any past
or future rights Xxxxxxxx may have or may claim to have to purchase
any additional fiber whatsoever under the SUSA, including but not
limited to Section 2.09 thereof, or the SOS or any other agreement,
which rights, if any, are extinguished and relinquished by Xxxxxxxx,
Xxxxxxxx and WorldCom agree that Xxxxxxxx has a right to purchase a
single fiber strand on those domestic buildouts (but not
acquisitions or mergers) to the WilTel Network (which buildout
routes are shown on Attachment 2 hereto and which consist of
approximately 7,721 route miles) ("BUILD-OUT FIBER"). The Network
routes depicted on Attachment 1 or described on Attachment 2 total
approximately 17,421 route miles. The Vyvx Fiber and the Build-Out
Fiber are hereinafter collectively and in total referred to as the
"XXXXXXXX FIBER").
(B) Xxxxxxxx agrees that, except as provided in Subsection 2(A),
above it does not have and does and will not claim any further
rights to purchase any additional fiber on the WilTel Network, or
any fiber on any network owned, operated or affiliated with WorldCom
or any of its
2
3
subsidiaries, affiliated or related entities, or any
predecessor or successor network or any network of entities
previously, currently or in the future Controlling, Controlled by or
under common Control with WorldCom, without regard to whether such
entity or network was obtained by acquisition, domestic expansion,
international expansion or otherwise.
(C) The purchase price for the Build-Out Fiber will be as set forth
in Section 2.09 of the SUSA to be modified as provided in Section 4
below (the "XXXXXXXX FIBER CHARGE"). WorldCom agrees to give
Xxxxxxxx the final Xxxxxxxx Fiber Charge with respect to the routes
shown on Attachment 2 the later of (a) August 1, 1998, or (ii)
ninety (90) days following completion of such routes. Provided,
however, in determining the Xxxxxxxx Fiber Charge with respect to
such routes, WorldCom will exclude fifteen percent (15%) of the
fibers used for protect channels in calculating the total number of
fibers which are to be divided into one in order to establish the
percentage used to multiply by the net book value. Xxxxxxxx will
then have sixty (60) days after receipt of such final Xxxxxxxx Fiber
Charge to elect whether or not to purchase such Build-Out Fiber
subject to the right to dispute such Xxxxxxxx Fiber Charge as
described in Subsection 4(C) below. In the event Xxxxxxxx elects to
purchase a Build-Out Fiber on any route, Xxxxxxxx agrees to pay
WorldCom the applicable Xxxxxxxx Fiber Charge the later of (i)
thirty (30) days following such election, or (ii) three (3) days
following delivery of the Build-Out Fiber to Xxxxxxxx which
Build-Out Fiber meets generally accepted industry standards or the
Build-Out Fiber is used by Xxxxxxxx. In the event Xxxxxxxx elects
not to purchase a Build-Out Fiber on a specified route or fails to
respond within such sixty-day period, Xxxxxxxx will be deemed to
have waived its right to purchase a Build-Out Fiber on such route.
3. RESTRICTIONS OF XXXXXXXX FIBER. WorldCom and Xxxxxxxx agree that
through and including June 30, 2001, Xxxxxxxx will restrict its usage and will
reasonably restrict its customers' usage of the Xxxxxxxx Fiber only to video and
radio transmission service, Internet Services (as further described herein),
and/or related applications including but not limited to graphic, visual
imaging, interactive and multimedia (collectively, the "PERMITTED SERVICES").
Further, during such period, without WorldCom's written consent, Xxxxxxxx will
not use the Xxxxxxxx Fiber for or in conjunction with cellular and personal
communications service applications or long distance data and voice applications
unless the data and voice applications are incidental to the Permitted Services
described above. After June 30, 2001, such contractual
3
4
restrictions on Xxxxxxxx and its customers' use of the Xxxxxxxx Fiber will be
lifted and Section 4.04(a) of the SUSA (as modified herein) shall be of no
further force or effect. For purposes of this Agreement, "Internet Services"
shall mean the transmission between computers of data communications over the
public and private interconnected network of networks (or a component thereof)
known as the Internet and using a common network protocol which as of the date
of this Agreement is predominantly TCP/IP (Transmission Control
Protocol/Internet Protocol) and which may be over an ATM/SONET infrastructure or
its equivalent but shall specifically exclude voice or facsimile public switched
telephone network ("PSTN") calls.
4. WORLDCOM FIBER.
(A) Xxxxxxxx agrees to promptly allow WorldCom to purchase a single
fiber (or, if Xxxxxxxx is unable to transfer ownership using
reasonable commercial efforts, an indefeasible right of use ("IRU")
of the same, dependent upon the rights Xxxxxxxx is legally and
contractually able to transfer) (the "WORLDCOM FIBER"), on the fiber
builds identified in the route map shown on Attachment 3 hereto
which routes comprise approximately 9,701 route miles. This route
map includes routes that are planned but not yet constructed as well
as routes that are partially complete and nearing completion. The
purchase price shall be as reflected in Section 2.09 of the SUSA to
be modified to be reciprocal **** Except as otherwise specifically
set forth herein, the other contractual terms applying to WorldCom
and governing the maintenance, operation and other issues related
to the WorldCom Fiber shall be the same as contained in the SUSA
and/or Settlement Statement and applying to Xxxxxxxx, unless the
parties otherwise expressly provide. It is expressly understood by
the parties that the WorldCom Fiber will not be subject to the use
limitations or restrictions set forth in Section 4.04(a) of the
SUSA such as those attendant to the Xxxxxxxx Fiber described in
Section 3 above.
------
**** Confidential material has been omitted and filed separately with the
Securities and Exchange Commission.
4
5
(B) Xxxxxxxx agrees to give WorldCom estimates of the WorldCom Fiber
Charge on a route by route basis when available and agrees to give
WorldCom the final WorldCom Fiber Charge within ninety (90) days
following completion of any route, except with respect to the
Dallas, TX-Washington, D.C. route where Xxxxxxxx is not required to
make one fiber available until the earlier of (i) December 31, 1999,
or (ii) the expiration of any existing obligations it may have with
IXC Communications, Inc. concerning the transfer of one fiber or an
IRU on such route. WorldCom will then have sixty (60) days after
receipt of such final WorldCom Fiber Charge to elect whether or not
to purchase such WorldCom Fiber subject to the right to dispute such
final WorldCom Fiber Charge as described in Subsection 4(C) below.
In the event WorldCom elects to purchase a WorldCom Fiber on any
route, WorldCom agrees to pay Xxxxxxxx the WorldCom Fiber Charge the
later of (i) thirty (30) days following such election, or (ii) three
(3) days after delivery of the fiber to WorldCom which WorldCom
Fiber meets generally accepted industry standards, or the WorldCom
Fiber is used by WorldCom. In the event WorldCom elects not to
purchase a WorldCom Fiber on a specified route or fails to respond
within such sixty-day period, WorldCom will be deemed to have waived
its right to purchase a WorldCom Fiber on such route. In the event
Xxxxxxxx fails (for whatever reason) to build any of the routes
shown as "Future Network Routes" in Attachment 3, Xxxxxxxx agrees to
offer WorldCom a fiber or fibers ("OTHER FIBERS") on other routes
acceptable to WorldCom that Xxxxxxxx is building (whether
individually or jointly with other entities) consisting of a similar
number of route miles to the route miles not completed by Xxxxxxxx
but in no event will the total number of route miles which WorldCom
is entitled in the aggregate exceed 9,701 route miles unless
otherwise agreed to in writing by the parties. Xxxxxxxx' obligation
to offer Other Fibers to WorldCom and WorldCom's obligation to
respond to such offer shall also be governed by the conditions
applicable to the offer and acceptance of the WorldCom Fiber.
Xxxxxxxx' obligation to offer WorldCom Other Fibers pursuant to this
Subsection (B) shall expire on June 30, 2003.
(C) With respect to **** that paid by Xxxxxxxx to WorldCom in
accordance with Section 2, reasonable cost substantiation of the
**** shall be provided to the party required to pay for the fiber or
the IRU. In calculating the ****, each party agrees to use generally
accepted accounting principles which have been consistently applied.
Attached as Attachment 4 is a list of cost categories that have been
and will be used to gather the costs comprising the net book value.
Pursuant to this Section and Section 2, if either party disputes the
**** proposed by the party offering fiber, the disputing party shall
notify the party offering fiber within thirty (30) days following
receipt of the final Xxxxxxxx Fiber Charge or the WorldCom Fiber
Charge, whichever is applicable. Upon receipt of the dispute notice,
the party offering fiber shall within fifteen (15) business days
allow a mutually acceptable nationally recognized independent
accounting firm to review its calculation of the **** including
third party and internal cost information supporting the calculation
of ****. Based on its review of the cost information, the
independent accounting firm shall calculate the **** which
calculation shall be final and binding on the parties. The party
challenging the **** shall pay for the cost of the independent
accounting firm. The disputing party shall have sixty (60) days
after the independent accounting firm distributes its calculation of
the **** to the parties in which to elect to purchase a fiber. The
failure to make an election within the sixty (60) day period will be
deemed to be a waiver of the disputing party's right to purchase
fiber on such segment(s).
------
**** Confidential material has been omitted and filed separately with the
Securities and Exchange Commission.
5
6
(D) WorldCom's purchase of fiber pursuant to this Section 4 shall
not include purchase of any rights of protection services from
Xxxxxxxx and shall not include optronics, but instead shall be
"dark" fiber.
5. MIGRATION OF EXISTING SERVICES. WorldCom and Xxxxxxxx will create a
migration team that will cooperate to complete migration of Xxxxxxxx to a single
fiber onto the Xxxxxxxx Fiber described in Section 2 above. The migration will
be completed as soon as possible but in no event after June 30, 1999, unless
otherwise mutually agreed. The intent of the parties is to complete the
migration substantially sooner than June 30, 1999. WorldCom will provide
reasonable support for that migration including power, rollover fiber and
required space. During the reconfiguration process there will be no additional
charge for the use of additional fiber necessary to accommodate the
reconfiguration for traffic prior to completion of reconfiguration and no
charge shall be due for delay in the reconfiguration which is due to lack of
reasonable support for the reconfiguration by WorldCom. In the event either
party determines that the other party is failing to support the migration effort
described in this Section 5, such party shall notify the other party (i) in the
case of Xxxxxxxx, Xxxxxx Xxxxxx, and (ii) in the case of WorldCom, Xxxxxxx
Xxxxxxx, specifically describing the lack of support
6
7
encountered by such party and such parties shall resolve such conflict through
such representatives.
6. PROTECTION SWITCHING. Xxxxxxxx shall use reasonable best efforts to
eliminate the need for WorldCom's obligation to provide protection switching on
or before June 30, 2001. Service Costs payable under the SUSA will be reduced
commensurately on a system segment by system segment basis when Xxxxxxxx has
notified WorldCom that a particular system segment no longer requires protection
service. In no event will WorldCom be under an obligation to continue providing
protection switching on any system segment after June 30, 2002, unless otherwise
mutually agreed.
7. SYSTEM SEGREGATION. The parties agree to make the necessary
amendments to the WilTel Collocate Agreement dated August 21, 1994 ("Collocate
Agreement") which was executed in connection with the SUSA to allow each party
to segregate its single fiber from the other's network to the extent
commercially practicable. It is the intent of the parties that WorldCom be able
to manage the WorldCom Fiber and Xxxxxxxx be able to manage the Xxxxxxxx Fiber
as systems independent of the network in which they are collocated to the
maximum extent commercially practicable. The parties also agree that WorldCom's
collocate rights and obligations for the WorldCom Fiber shall be governed by the
terms and conditions of the Collocate Agreement.
8. ADDITIONAL FIBER AND OTHER SERVICES. Each party will consider,
without obligation, requests by the other party to purchase additional fiber or
other products or services.
9. ADDITIONAL PURCHASE PRICE/VIDEOCONFERENCING CREDITS. Section 2.03 of
the SUSA relating to the Additional Purchase Price and videoconferencing credits
is hereby canceled and deleted including all alleged credits outstanding.
10. WAIVER OF CERTAIN CLAIMS AND AMOUNTS OWED; MUTUAL RELEASE.
(A) WorldCom and Xxxxxxxx agree that those claims which are
specifically set forth on Attachment 5 hereto and any related
finance charges or other penalty amounts are hereby waived (the
"RELEASED CLAIMS").
7
8
(B) Notwithstanding Section 10.20 of the SUSA, from and after the
Effective Date hereof, with respect to charges for "Common
Facilities Cost" or "Costs" provided under the SUSA, Xxxxxxxx and
WorldCom hereby agree to pay backbills which are properly
substantiated so long as the charges do not relate to periods more
than one year prior to the date the invoice is sent. WorldCom and
Xxxxxxxx hereby also agree to pay backbills that relate to third
party charges, even after the expiration of the one-year period, so
long as the party invoices the third party charges to the other
party within six months of the date such party is first invoiced for
those third-party charges.
(C) Other than with respect to the Released Claims, if applicable,
this Agreement shall not affect or release any amounts owing under
agreements not related to the SUSA or the Settlement Statement such
as non-SUSA agreements for capacity service or agreements between
the parties even if such capacity has been provided to WorldCom over
the Xxxxxxxx Fiber.
(D) Nothing in this Section 10 of the Agreement is intended to
waive, release or modify any current or future obligation under the
SUSA or the Settlement Statement, except as otherwise provided for
in this Agreement.
(E) Upon execution hereof, WorldCom, on behalf of itself and its
officers, directors, partners, employees, agents, stockholders,
attorneys, predecessors, assigns, servants, insurers, and all
persons, partnerships, corporations or other entities acting in
concert or participating with them (hereinafter collectively
referred to the "WORLDCOM GROUP" hereby releases and discharges
fully and forever Xxxxxxxx and its officers, directors, partners,
employees, agents, stockholders, attorneys, predecessors, assigns,
servants, insurers, and all persons, partnerships, corporations or
other entities acting in concert or participating with them
(hereinafter collectively referred to the "XXXXXXXX GROUP") of and
from any and all liabilities, claims, demands for damages, costs
(including, without limitation, attorneys' fees), indemnification,
contribution or any other thing whatsoever relating to the Released
Claims.
(F) Upon execution hereof, the Xxxxxxxx Group hereby releases and
discharges fully and forever the WorldCom Group of and from any and
all liabilities, claims, demands for damages, costs (including,
without
8
9
limitation, attorneys' fees), indemnification, contribution or any
other thing whatsoever relating to the Released Claims.
(G) This Agreement effects the settlement of claims which are denied
and contested by the respective parties and nothing contained herein
shall be construed as an admission of liability by or on behalf of
any party, all of which expressly deny any such liability.
(H) Nothing in this Agreement shall have effect on any rights or
claims which any party may have against any other party or person
not released hereby.
(I) Each party covenants and agrees not to seek or initiate any
administrative proceeding, bring any claim, or assert any cause of
action released hereby against the other party concerning the
Lawsuit, the SUSA, the Settlement Statement or the Released Claims
arising prior to the Effective Date, and further covenants and
agrees that this Agreement shall be a bar to any such proceeding,
claim or cause of action thereon by any party hereto against the
other party.
11. ****
12. CONSENT TO ASSIGNMENT. WorldCom hereby (i) consents to the
assignment of the Intermedia contracts requested to date, (ii) agrees to
accommodate Xxxxxxxx' request for connections to Internet facilities at
Washington D.C. MAE or any other MAE facility in accordance with standard terms
and conditions applicable thereto, except as otherwise negotiated, and (iii)
agrees to accommodate Xxxxxxxx' request dated June 4, 1998, to the extent
legally permissible, for the assignment of certain telecom rights, pursuant to
Section 9 of the MidWest Cross Master Agreement dated December 11, 1986 between
Xxxxxxxx Pipeline Company and Xxxxxxxx Telecommunications Company (now
WorldCom).
13. NON-SOLICITATION. Without the other party's prior written consent,
WorldCom and Xxxxxxxx mutually agree not to solicit the other's employees
located in Tulsa County, Oklahoma and those counties contiguous to Tulsa County
for a period of five (5) years commencing July 1, 1998. Further, commencing
August 1, 1998 and continuing for a period of one (1) year thereafter, in the
event either party hires or engages, directly or indirectly, whether as an
employee, agent, contractor, consultant or otherwise, a Necessary Employee (as
defined herein) of the other party located in Tulsa County, Oklahoma and those
counties contiguous to Tulsa County and the other party does not consent in
writing to such hiring, the party hiring such employee, directly or indirectly,
agrees to pay the other party five (5) times the greater of (i) such employee's
annual total compensation package (i.e., salary, bonus, stock options as well as
other non-cash consideration) in effect immediately prior to such employee's
termination of employment with the other party, or (ii) the total annual
compensation package (i.e., salary, anticipated bonus, stock options as well as
other non-cash consideration) offered to such employee by the hiring party. The
term "Necessary Employee" shall be limited
------
**** Confidential material has been omitted and filed separately with the
Securities and Exchange Commission.
9
10
to the following: (i) those employees in the Network Planning Groups of either
WorldCom or Xxxxxxxx who will either directly or indirectly participate in
completing the migration of Xxxxxxxx to a single fiber onto the Xxxxxxxx Fiber,
(ii) those employees at WorldCom (a) at the director level or above, and/or (b)
who have access to proprietary information of WorldCom concerning the sales,
marketing, network, construction, operations, systems and plans of WorldCom's
networks, and (iii) those employees at Xxxxxxxx (a) at the director level or
above, and/or (b) who have access to proprietary information of Xxxxxxxx
concerning the sales, marketing, network, construction, operations, systems and
plans of Xxxxxxxx' networks.
14. DISMISSAL OF LAWSUIT. On or before July 15, 1998, the parties agree
to dismiss with prejudice the Lawsuit, with each party to bear its own costs and
attorney fees. Further, the parties agree to jointly issue a press release with
respect to the dismissal of the Lawsuit and will not, without the other party's
consent make any further announcements, whether public or private, concerning
the dismissal of the Lawsuit or the settlement thereof, except as required by
law. However, the parties may state that the settlement was beneficial to both
parties.
15. REPRESENTATIONS, WARRANTIES AND COVENANTS.
(A) Each party represents and warrants to the other party that it
has received independent legal advice from attorneys of its choice
with respect to the advisability of making the settlement and
release provided herein, and with respect to the advisability of
executing this Agreement, and prior to the execution of this
Agreement, its respective attorneys have reviewed this Agreement in
full and have made all desired changes thereto.
10
11
(B) Except as set forth herein, there have been no other
representations, agreements or understandings between the parties
hereto, relating to this Agreement or the subject matter hereof.
(C) The terms of this Agreement are contractual, not a mere recital,
and are the result of arms-length negotiations between the parties
hereto. Each party agrees that the rules of construction to the
effect that any ambiguities in this Agreement are to be resolved
against the drafting party shall not be employed in the
interpretation of this Agreement.
(D) This Agreement has been carefully read by, the context hereof is
known and understood by, and is signed freely by the parties.
16. GENERAL PROVISIONS.
(A) No provision hereof may be waived unless in writing signed by
the party to be charged. Waiver of any one provision herein shall
not be deemed to be a waiver of any other provision herein. This
Agreement may be modified or amended only by a written agreement
executed by both parties.
(B) This Agreement shall be governed by and construed under and in
accordance with the internal laws (without regard to the laws of
conflicts) of the State of New York. Any action brought to enforce,
apply or interpret this Agreement or to resolve any dispute arising
out of or relating in any way to this Agreement shall be brought in
the District Court in Tulsa County, Oklahoma (or, if necessary, in
the courts in and for the United States of America for the Northern
District of Oklahoma) and all parties to this Agreement acknowledge
and agree that such courts have jurisdiction and are proper venues.
(C) This Agreement may be executed in one or more counterparts, each
of which shall be an original but all of which, together, shall be
deemed to constitute a single document.
(D) Titles or captions contained in this Agreement are inserted only
as matter of convenience and for reference and in no way define,
limit, extend or describe the scope of this Agreement or the intent
of any provision hereof.
11
12
(E) Each party represents and warrants to each other that it is the
sole and lawful owner of all right, title and interest in and to
every claim and other matter which the party purports to release
herein and that such party has not heretofore assigned or
transferred, or purported to assign or transfer, to any other person
or entity any claims or other matters herein released.
(F) This Agreement shall inure to the benefit of and shall be
binding upon the predecessors, successors and assigns of the parties
hereto, and each of them. Except with respect to the parties
referenced in Section 1 above, this Settlement Agreement is not
intended to constitute a third party beneficiary contract.
(G) Except as may otherwise be expressly agreed in writing, the
parties hereto agree to bear their own costs and attorneys' fees in
connection with the Lawsuit, the SUSA, the Settlement Statement and
this Agreement.
(H) The warranties and representations of this Agreement are deemed
to survive the execution hereof.
(I) In the event that any of the terms or provisions of this
Agreement are found to be legally unenforceable by a court of
competent jurisdiction, then the remaining terms and conditions, if
capable of substantial performance, shall nevertheless remain in
full force and effect and such unenforceable provisions shall be
deemed to be restated to reflect the original intentions of the
parties as nearly as possible, in accordance with applicable law.
(J) In the event of a breach or threatened breach of this Agreement,
the non-defaulting party shall have the right to seek injunctive
relief without a showing of irreparable harm or injury and without
bond as well as the right to seek specific performance or monetary
damages against the party breaching or threatening to breach this
Agreement.
12
13
IN WITNESS HEREOF, the parties hereto have approved and executed this
Agreement as of the Effective Date set forth above.
DATED: July 8, 1998 WORLDCOM NETWORK SERVICES, INC.
By:
-----------------------------------
Its:
-----------------------------------
DATED: July 8, 1998 XXXXXXXX COMMUNICATIONS, INC.
By:
-----------------------------------
Its:
-----------------------------------
13
14
ATTACHMENT 1
WILTEL NETWORK
[MAP]
ATTACHMENT 2
ADDITIONAL XXXXXXXX ROUTES
Salt Lake City, UT - Seattle, XX/Xxxxxxxx, XX[0,000 Miles]
Xxxx Xxxx Xxxx, XX - Xxxxx Xxxxx, XX[000 Miles]
Xxxxx Xxxxx, XX - Xxxxxxxx, XX[000 Miles]
Dallas, TX - Houston, TX[269 Miles]
Las Vegas, NV - Phoenix, AR[363 Miles]
Denver, CO - El Paso, TX[749 Miles]
Xxxxxxxxxx, XX - Xxxxxxx, XX[000 Miles]
Memphis, TN - Xxxxxxxxx, XX[000 Miles]
Xxxxxxxxx, XX - Xxxxxx, XX[00 Miles]
Cleveland, OH - New York, NY[727 Miles]
Xxxxxx, XX - Xxxxxx, XX[000 Miles]
Xxxxxxxx, MO - Cleveland, OH[1,076]
Xxxxxxxxx, XX - Xxxxxxxxxxxx, XX[000 Miles]
Houston, TX - Austin, TX/San Antonio, TX[305 Miles]
14
15
ATTACHMENT 3
WORLDCOM FIBER NETWORK
Atlanta, GA - Washington, D.C.
Atlanta, GA - Houston, TX
Dallas, TX - Houston, TX
Atlanta, GA - Jacksonville, FL
Jacksonville, FL - Miami, FL
Xxxxxxx Xxxxx, XX - Xxxxx, XX
Xxx Xxxx Xxxx, XX - Washington, D.C.
New Orleans, LA - Tallahassee, FL
Tallahassee, FL - Miami, FL
Minneapolis, MN - Kansas City, MO
Kansas City, MO - Denver, CO
Denver, CO - Salt Lake City, UT
FUTURE NETWORK XXXXXX
Xxxxxxxxxx, XX - Xxxx Xxxx Xxxx, XX
San Diego, CA - Phoenix, AR
Boston, MA - Albany, NY
Atlanta, GA - Nashville, TN
Nashville, TN - Louisville, KY
Louisville, KY - Cincinnati, OH
Denver, Co - El Paso, TX
Dallas, TX - Nashville, TN
Nashville, TN - Charlotte, NC
Cleveland, OH - Washington, DC.
15
16
ATTACHMENT 4
COST CATEGORIES TO BE USED IN DETERMINING NET BOOK VALUE
CONSTRUCTION
Contract Labor/Construction Management
Engineering/Surveying/Drafting
Company Labor/Travel
Utilities/Rent to Field Offices and Warehouses
ROW Damages
Inspection
Railroad Flagging
Legal Fees
Bonding
REGENERATION SITES
Site Preparation
AC & DC Power
Buildings/Installation of Pre-Fabricated Buildings
Acquisition of Land/Site
Inspection
Utility Power
Engineering/Surveying/Drafting
Company Labor/Travel
Materials
ROW & PERMITTING (SWAP 0R PURCHASE)
Easement, Permit, License and Zoning Acquisition
Labor & Management of Labor
Environmental Surveys for Permitting
Franchise Fees for City Permitting
Legal Fees
Bonding
16
17
FIBER CABLE
Fiber Cable and Associated Shipping and Tax
Materials (including conduit)
(NOTE: NET BOOK VALUE WILL ALSO INCLUDE ANY FEES, EXPENSES
AND/OR DAMAGES ASSESSED AGAINST OR INCURRED BY EITHER
ENTITY AFTER THE COMPLETION OF SUCH ROUTE PROVIDED
SUCH FEES, EXPENSES OR DAMAGES ARE PROPERLY
CAPITALIZED IN ACCORDANCE WITH GENERALLY
ACCEPTED ACCOUNTING PRINCIPLES)
17
18
ATTACHMENT 5
RELEASED CLAIMS
A. As of the Effective Date, the WorldCom Group agrees to release the
following claims it has or may have against the Xxxxxxxx Group:
1. The Total Previous Balance shown on Xxxxxxxx' Invoice dated
05/20/1998 for Account No. 00000000 (the "Xxxxxxxx Invoice") in the
amount of $5,870,694.99.
2. In addition to those claims included in the $5,870,694.89 in item 1,
any claims for "Costs" or "Common Facilities Costs" as defined in
the SUSA for the period prior to July 1, 1997 subject to the
backbill provision described in Subsection 10(B) of the Agreement.
3. All amounts charged by the WorldCom Group relating to Xxxxxxxx
Group's use of a second fiber as described in Xx. Xxxxxxx'x letter
to Xx. Xxxxxx dated March 31, 1998.
4. All charges and amounts due and/or credits for videoconferencing
services provided pursuant to the SUSA or Settlement Statement prior
to the Effective Date.
5. Any claim the Xxxxxxxx Group violated the Non-Competition Agreement
dated January 5, 1995.
6. Any claims specifically alleged in the Lawsuit.
B. As of the Effective Date, the Xxxxxxxx Group agrees to release the
following claims it has or may have against the WorldCom Group:
1. All charges and amounts due for audioconferencing and fax services
provided pursuant to the SUSA or Settlement Statement prior to June
1, 1998, except for a payment due by WorldCom of $909,850 (which
amount Xxxxxxxx represents is for services provided and does not
contain any finance charges or other penalty amounts).
2. All charges and amounts due for videoconferencing services provided
pursuant to the SUSA or Settlement Statement prior to the Effective
18
19
Date, except for a payment due by WorldCom of $279,551 for
maintenance, repair and set up services associated with
videoconferencing services provided by Xxxxxxxx to WorldCom (which
amount Xxxxxxxx represents is for services provided and does not
contain any finance charges or other penalty amounts.
3. Any claims relating to unfair competition or anticompetitive
conduct.
4. The Waterhouse Securities matter referenced in Xx. Xxxxxxxx'x
February 19, 1998 letter to Mr. Xxxx Xxxxxx.
5. Any Claims specifically alleged in the Lawsuit.
19
