Exhibit 10.49
ASSIGNMENT AND ASSUMPTION AGREEMENT
This Assignment and Assumption Agreement (the "Agreement"), dated as
of December 22, 2000, is by and between SBCT Telecom, Inc., a Delaware
corporation ("SBCT") and Network Access Solutions Corporation, a Delaware
corporation ("NAS") (each individually a "Party" and collectively the
"Parties").
RECITALS
WHEREAS, NAS wishes to assign to SBCT, and SBCT wishes to accept the
assignment of, certain of NAS's existing collocation rights and obligations
in certain Qwest Communications ("Qwest") central offices.
NOW THEREFORE, in consideration of the mutual covenants contained
herein, SBCT and NAS agree as follows:
Section 1 : Defined Terms
In addition to those terms defined elsewhere in this Agreement, the
following terms shall have the following meanings when used in this
Agreement:
"AAA" means the American Arbitration Association.
"Affiliate" means, with respect to a Person, any other Person directly
or indirectly controlling, controlled by or under common control with such
Person.
"Business Day" means a day other than (i) a Saturday or Sunday or
(ii) a day on which banking institutions are authorized or required by law
or executive order to remain closed in the State of Texas.
"Closing" means the consummation of the transactions contemplated by
this Agreement in accordance with the provisions of Section 3 hereof.
"Closing Date" means the date on which the Closing occurs.
"Collocation Arrangement" means the collocation space and supporting
structure for which NAS has applied (and whose construction is either
underway or completed) pursuant to its Interconnection Agreements in each
central office listed on Schedule A hereto. NAS makes no representation or
warranty that any Collocation Arrangement meets the specifications that NAS
requested in its application for that Collocation Arrangement or that any
Collocation Arrangement is suitable for the purposes for which SBCT desires
that Collocation Arrangement. A Collocation Arrangement shall not include
any equipment, tools, supplies or other materials that NAS has placed in
any such collocation space and supporting structure.
"Collocation Arrangement Liabilities" means, for each Collocation
Arrangement, any suits, claims, losses, damages, costs and expenses
relating to, or arising from, the Collocation Arrangement that arise
following the Closing applicable to that Collocation Arrangement, including
any reduction in the value of the Collocation Arrangement resulting from
any order issued by a Governmental Authority following the Closing, but
shall not include any payment obligations NAS has agreed to discharge
pursuant to that Master Agreement of even date herewith under which SBCT
Communications Inc. will lend NAS money to discharge certain obligations
with respect to Collocation Arrangements to be assigned to SBCT.
"Consents" means all of the consents, permits or approvals of
Governmental Authorities and other Persons necessary or required to
consummate the transactions contemplated hereby.
"Governmental Authority" means (i) the United States, any state,
commonwealth, territory, or possession thereof and any political
subdivision or quasi-governmental authority of any of the same and (ii) any
foreign (as to the United States) sovereign entity and any political
subdivision, quasi-governmental authority, or instrumentality of any of the
same.
"Interconnection Agreements" means those interconnection agreements
between NAS and Qwest listed on Schedule A hereto.
"Judgment" means any judgment, writ, order, injunction, award or
decree of any court, judge, justice or magistrate, and any order of or by
any other Governmental Authority.
"Legal Requirements" means applicable common law and any applicable
statute, ordinance, code or other law, rule, regulation, order, technical
or other standard, requirement or procedure enacted, adopted, promulgated
or applied by any Governmental Authority, including any Judgment.
"Lien" means any security agreement, financing statement filed with
any Governmental Authority, conditional sale or other title retention
agreement, any lease, consignment or bailment given for the purpose of
security, any lien, mortgage, indenture, pledge, option, encumbrance,
restriction on transfer, adverse interest, constructive trust or other
trust, claim, attachment, exception to or defect in title or other
ownership interest of any kind, which otherwise constitutes an interest in
or claim against property.
"Litigation" means any claim, action, suit, proceeding, arbitration,
investigation, hearing or other activity or procedure that could result in
a Judgment, and any notice of any of the foregoing.
"Losses" means any losses, liabilities, damages, Liens, penalties,
costs, fines and expenses, whether in connection with any Litigation or
otherwise, including but not limited to interest which may be imposed in
connection therewith, expenses of investigation, reasonable fees and
disbursements of counsel and other experts.
"Person" means any natural person, Governmental Authority,
corporation, general or limited partnership, limited liability company,
limited liability partnership, joint venture, trust, estate, association,
organization or unincorporated entity of any kind.
"Qwest Consent" means a letter agreement, substantially in the form
attached hereto as Schedule B, effecting the consent of Qwest to (i) the
assignment of the Collocation Arrangements to SBCT, (ii) the assumption by
SBCT of the Collocation Arrangement Liabilities as contemplated herein, and
(iii) the release by Qwest of NAS from Collocation Arrangement Liabilities.
"Required Regulatory Approval" means, with respect to the Collocation
Arrangements in a given state, any approval by the public utility
commission in that state that is required in order for NAS to assign the
Collocation Arrangements in that state to SBCT in accordance with the terms
of this Agreement.
Section 2 : Terms of Assignment and Assumption
2.1 Assignment of Collocation Arrangements. Subject to the terms and
conditions of this Agreement, NAS hereby agrees, at each Closing, to
assign, transfer, grant, sell, convey and deliver to SBCT all of NAS's
right, title, interest, claim and demand in and to each Collocation
Arrangement to which that Closing applies, and SBCT agrees to accept such
assignment, transfer, grant, sale, conveyance, and deliver. NAS shall
remove prior to each Closing any equipment, tools, supplies or other
materials that it has placed in the relevant Collocation Arrangements.
2.2 Assumption of Collocation Arrangement Liabilities. Subject to
the terms and conditions of this Agreement, SBCT hereby agrees to pay,
discharge and assume any and all Collocation Arrangement Liabilities.
2.3 Occupancy and Use. The Parties acknowledge that SBCT's rights
and obligations with respect to occupancy and use of the Collocation
Arrangements shall be governed by a separate letter agreement by and
between SBCT and Qwest, in the form attached hereto as Schedule C.
2.4 Consideration.
As consideration for the assignment of a Collocation Arrangement
to SBCT that is marked on Schedule A with a single asterisk, SBCT hereby
agrees to pay NAS $84,210 at the Closing that applies to such Collocation
Arrangement.
(b) As consideration for the transfer of a Collocation
Arrangement to SBCT that is marked on Schedule A with two asterisks, SBCT
hereby agrees to compensate NAS pursuant to the terms of the First
Amendment to Stock Purchase Agreement dated as even date herewith and
Settlement Agreement and General Release dated as of even date herewith at
the Closing that applies to such Collocation Arrangement.
(c) In addition SBCT shall, in the event it returns any
Collocation Arrangement marked on Schedule A with two asterisks to Qwest
rather than use that Collocation Arrangement for its own purposes,
(i) apply to the balance due on the Senior Note issued to NAS pursuant to
the Master Collocation Agreement of even date herewith any and all payments
received from Qwest upon Qwest's subsequent sale of that Collocation
Arrangement to another carrier which represent SBC's share of the proceeds
from that subsequent sale; and (ii) provide written verification to NAS of
the amount received from Qwest along with the date that amount was received
and applied to the loan. If there is no balance due on the Senior Note,
including, but not limited to, any interest obligations, SBCT shall forward
any such payments to NAS.
2.5 Effectiveness of Assignment. The Parties hereby agree that the
assignment of a Collocation Arrangement pursuant to Section 2.1 hereof and
assumption of the Collocation Arrangement Liabilities pursuant to Section
2.2 hereof shall be effective upon the Closing applicable to the assignment
of that Collocation Arrangement.
2.6 Applications for Regulatory Approval. The Parties agree to
jointly file and prosecute all applications requesting issuance of any
Required Regulatory Approval and to share equally all costs, including
legal fees and filing fees, in connection with the filing and prosecution
of all such applications. The Parties further agree to file all such
applications as promptly as possible once the Parties have a reasonable
basis to believe that Qwest will consent to assignment of a Collocation
Application to SBCT.
Section 3 : Closing
Upon the terms and subject to the conditions contained herein (each
Party agreeing to notify the other when all closing conditions have
occurred), and unless otherwise mutually agreed, a Closing shall take place
with respect to all Collocation Arrangements in a given state at the
offices of Xxxxxx & Xxxxxx in Washington, D.C., at 10 a.m. local time on
the date which is two (2) Business Days following the satisfaction of all
conditions set forth in Section 4 hereto with respect to those Collocation
Arrangements; provided that the Closing may be effected through the
transmission of documents by facsimile followed promptly by the
transmission of hard copy by overnight courier.
Section 4 : Conditions
The obligations of each Party to consummate the transactions
contemplated hereby with respect to the Collocation Arrangements in a given
state shall be subject to each of the following conditions:
4.1 NAS, SBCT and Qwest have executed the Qwest Consent.
4.2 NAS has discharged in full all of its payment obligations
applicable to the relevant Collocation Arrangements, including, but not
limited to, any construction or installation costs, any costs for
telecommunications services ordered to the Collocation Arrangements, any
payments to contractors and suppliers, and any other costs incurred in
connection with the Collocation Arrangements.
4.3 NAS has removed, at its own expense, any and all equipment (e.g.
electronic transmission equipment) or facilities (e.g. bays and cable
racking) installed by or on behalf of NAS in the relevant Collocation
Arrangement.
4.4 The Parties have received any Required Regulatory Approval.
Section 5 : Representations and Warranties of NAS and SBCT
Each of NAS and SBCT hereby represents and warrants to each other, as
of the date hereof, as follows:
5.1 Organization and Standing. Each of NAS and SBCT is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware and has all requisite corporate power and authority to
execute and deliver this Agreement and to perform its obligations
hereunder.
5.2 Authorization.
(a) This Agreement has been duly and validly executed and
delivered by each of NAS and SBCT and constitutes the legal, valid and
binding obligation of such Party enforceable against such Party in
accordance with its terms, except as such enforceability may be limited by
(i) bankruptcy, insolvency, or other similar laws affecting the enforcement
of creditors' rights generally or (ii) general principles of equity.
(b) Neither the execution, delivery or performance of this
Agreement by such Party nor the consummation by such Party of the
transactions contemplated herein will, with or without the giving of notice
or the lapse of time, or both, (i) violate any Legal Requirements to which
such Party is subject or (ii) conflict with or result in a breach of the
terms, conditions or provisions of, or constitute a default under, the
charter or by-laws of such Party or any material agreement or commitment to
which such Party is a party or by which such Party or any of such Party's
assets, may be bound or affected.
5.3 Litigation. There is no Litigation pending against or, to the
best of such Party's knowledge, any basis for Litigation or threatened
Litigation against such Party which seeks to enjoin or obtain damages in
respect of the consummation of the transactions contemplated hereby. Each
of NAS and SBCT represents and warrants that it is not a party to or
involved in any Litigation which is reasonably likely to have a material
adverse effect on such Party's ability to consummate, or which would
prevent the consummation of, the transactions contemplated by this
Agreement.
5.4 No Consent Required. To the best of each Party's knowledge, no
consents other than the Qwest Consent and, with respect to the Collocation
Arrangements in certain states, a Required Regulatory Approval, are
required as a condition to the assignment of the Collocation Arrangements
to SBCT pursuant to this Agreement.
Section 6 : Further Representations and Warranties of NAS
NAS hereby represents and warrants to SBCT, as of the date hereof, as
follows:
6.1 Right to Assign Collocation Arrangements. NAS holds all of the
right, title and interest in and to the Collocation Arrangements free and
clear of any Liens and has full right and authority to transfer the
Collocation Arrangements to SBCT in accordance with the terms of this
Agreement.
6.2 Absence of Default. Neither NAS nor any of its subsidiaries is
in material default under or in material violation of any provision of any
of the Interconnection Agreements, and neither the execution and delivery
by NAS of this Agreement, the consummation of the transactions contemplated
hereby, nor compliance by NAS with its obligations hereunder will conflict
with, or result in a breach or violation of, or constitute a default under,
any provision of any of the Interconnection Agreements.
6.3 No Payments Due. As of the Closing Date with respect to the
Collocation Arrangements in a given state, NAS has paid to Qwest all costs
and expenses, including all application fees, relating to such Collocation
Arrangements that are required to be paid by NAS to Qwest pursuant to the
applicable Interconnection Agreement. In addition, no payments of any
costs or expenses relating to any such Collocation Arrangements that are
required to be paid by NAS to Qwest pursuant to the Interconnection
Agreement or to contractors and suppliers are past due.
Section 7 : Further Representations of SBCT
SBCT represents and warrants to NAS that within 10 days of the
execution of this Agreement, it will reimburse NAS for recurring charges
and expenses assessed by Qwest and incurred through December 31, 2000 in
connection with operating the sixteen (16) Utah Collocation Arrangements
that NAS has accepted from Qwest in an amount not to exceed a total of
$300,000. NAS shall provide to SBCT copies of the Qwest invoices for which
it seeks reimbursement hereunder within 5 Business days of the execution of
this Agreement.
Section 8 : Covenants
8.1 Covenants of NAS. NAS hereby covenants and agrees with SBCT as
follows:
(a) Access to Information Relating to Collocation Arrangements.
During the period prior to the Closing with respect to the Collocation
Arrangements in a given state, NAS will grant to SBCT and its
representatives reasonable access to all the books and records relating to
the Collocation Arrangements; and, upon reasonable notice to NAS (and at
NAS's option the right to accompany SBCT) and subject to obtaining the
consent of Qwest, NAS will permit SBCT to inspect the Collocation
Arrangements, except that SBCT rather than NAS shall be required to pay any
charge levied by Qwest to make any such inspection visit.
Ordinary Course Operation. Between the date of this
Agreement and the Closing with respect to the Collocation Arrangements in a
given state, NAS (i) shall maintain the effectiveness of the
Interconnection Agreements applicable to Collocation Arrangements in that
state and (ii) shall, in all material respects, remain in compliance with
the terms of the Interconnection Agreements.
(c) NAS covenants that it will pay all recurring charges
and expenses referred to in Section 7 hereof no later than five (5)
Business Days following receipt by NAS of the reimbursement described in
that Section.
8.2 Covenants of SBCT and NAS. SBCT and NAS hereby covenant and
agree with each other that each of SBCT and NAS shall be required to
execute the letter agreement referred to in Section 4.1 hereof unless this
Agreement has terminated pursuant to the provisions of Section 11 hereof.
Section 9 : Indemnification
9.1 Indemnification by NAS. NAS hereby agrees to indemnify SBCT and
its Affiliates, officers and directors and hold them harmless from any
Losses suffered or incurred by any such indemnified party arising from or
relating to (i) any breach of any representation, warranty, covenant or
agreement in this Agreement; (ii) any Collocation Arrangement or service
provided by NAS from such Collocation Arrangement prior to or on the date
hereof; (iii) any costs or expenses relating to the Collocation
Arrangements that were required to be paid by NAS to Qwest pursuant to the
Interconnection Agreements prior to or on the date hereof, and (iv) NAS's
presence in any Collocation Arrangement or the removal of any equipment,
tools, supplies or other material that it has placed in any Collocation
Arrangement, in each case pursuant to Section 2.1 of this Agreement.
9.2 Indemnification by SBCT. SBCT hereby agrees to indemnify NAS and
its Affiliates, officers and directors and hold them harmless from any
Losses suffered or incurred by any such indemnified party arising from or
relating to (i) any breach of any representation, warranty, covenant or
agreement in this Agreement, and (ii) any Collocation Arrangement or
service provided by SBCT from such Callocation Arrangement subsequent to
the date hereof.
9.3 Losses. The amount of any Losses for which indemnification
is provided under this Section 9 shall be net of any amounts recovered or
recoverable by the indemnified party under insurance policies with respect
to such Losses and shall be increased to take account of any Tax cost to
the indemnified party and reduced to take account of any Tax benefit to the
indemnified party arising from the incurrence or payment of any Losses.
9.4 Procedures Relating to Third Party Claims. In order for a
Party (the "Indemnified Party") to be entitled to any indemnification
provided for under this Agreement in respect of, arising out of or
involving a claim or demand made by any Person against the Indemnified
Party (a "Third Party Claim"), such Indemnified Party must notify the
indemnifying Party in writing of the Third Party Claim within ten (10)
Business Days after receipt by such Indemnified Party of written notice of
the Third Party Claim; provided, however, that failure to give such
notification shall not affect the indemnification provided hereunder except
to the extent the indemnifying Party shall have been actually prejudiced as
a result of such failure (except that the indemnifying Party shall not be
liable for any expenses incurred during the period in which the Indemnified
Party failed to give such notice). Thereafter, the Indemnified Party shall
deliver to the indemnifying Party, within five Business Days after the
Indemnified Party's receipt thereof copies of all notices and documents
(including court papers) received by the Indemnified Party relating to the
Third Party Claim.
If a Third Party Claim is made against an Indemnified Party, the
indemnifying Party will be entitled to participate in the defense thereof
and upon notice to the Indemnified Party to assume the defense thereof
provided that the indemnifying Party shall thereafter consult with the
Indemnified Party upon the Indemnified Party's request for such
consultation from time to time with respect to such suit, action or
proceeding. If the indemnifying Party assumes such defense, the
Indemnified Party shall have the right (but not the duty) to participate in
the defense thereof and to employ counsel, at its own expense, separate
from the counsel employed by the indemnifying Party. The indemnifying
Party shall be liable for the fees and expenses of counsel employed by the
Indemnified Party for any period during which the indemnifying Party has
not assumed the defense thereof. Should the indemnifying Party so elect to
assume the defense of a Third Party Claim, the indemnifying Party will not
be liable to the Indemnified Party for any legal expenses subsequently
incurred by the Indemnified Party in connection with the defense thereof.
Whether or not the indemnifying Party chooses to defend or prosecute any
Third Party Claim, all of the Parties hereto shall cooperate in the defense
or prosecution thereof. Such cooperation shall include the retention and
(upon the indemnifying Party's request) the provision to the indemnifying
Party of records and information which are reasonably relevant to such
Third Party Claim, and making employees available on a mutually convenient
basis to provide additional information and explanation of any material
provided hereunder. Whether or not the indemnifying Party shall have
assumed the defense of a Third Party Claim, the Indemnified Party shall not
admit any liability with respect to, or settle, compromise or discharge,
such Third Party Claim without the indemnifying Party's prior written
consent.
Any payment pursuant to this Section 9.4 shall be made not later than
15 days after receipt by the indemnifying Party of written notice from the
Indemnified Party stating that any Third Party Claim has been paid by any
Indemnified Party and the amount thereof and the indemnity payment
requested.
Section 10 : Arbitration
10.1 Resolution of Disputes.
(a) The Parties shall attempt in good faith to resolve any
controversy, dispute or claim arising out of or relating to this Agreement
or the breach, termination, enforceability or validity thereof
(collectively, a "Dispute") promptly by negotiation between officers or
employees who have authority to settle the Dispute. Any Party may give
another Party a written notice (a "Dispute Notice") setting forth with
reasonable specificity the nature of the Dispute and the identity of such
Party's representatives who will attend and participate in the meeting at
which the Parties will attempt to settle the Dispute. All negotiations
pursuant to this Section 10.1(a) shall be confidential and shall be treated
as compromise and settlement negotiations. Nothing said or disclosed, nor
any document produced, in the course of such negotiations which is not
otherwise independently discoverable shall be offered or received as
evidence or used for impeachment or for any other purpose in any current of
future arbitration or litigation.
(b) If the Dispute has not been resolved within thirty (30) days
after the receipt of a Dispute Notice through negotiation as provided in
Section 10.1(a), then the Dispute shall be finally settled by arbitration
in accordance with the commercial arbitration rules of the AAA then in
effect. However, in all events, the arbitration provisions in this Section
10 shall govern over any conflicting rules that may now or hereafter be
contained in the AAA rules. The arbitration shall be held in New York, New
York, unless the Parties mutually agree to have the arbitration held
elsewhere, and Judgment upon the award made therein may be entered by any
court having jurisdiction over the award, over the applicable parties, or
their respective assets; provided, however, that nothing contained in this
Section 10 shall be construed to limit or preclude a Party from bringing
any action in any court of competent jurisdiction for injunctive or other
provisional relief to compel another Party to comply with its obligations
under this Agreement during the pendency of the arbitration proceedings.
Any Judgment upon the award rendered by the arbitrators may be entered in
any court having jurisdiction over the subject matter hereof. The
arbitrator shall have the authority to grant any equitable and legal
remedies that would be available in any judicial proceeding instituted to
resolve any claim hereunder.
10.2 Arbitrators. Any such arbitration will be conducted before three
(3) arbitrators, one of whom shall be chosen by each party and the third of
whom shall be chosen by the other two arbitrators. The parties may obtain
lists of candidates from their choice of the AAA, JAMS or both, for their
respective choices. If lists are obtained from both AAA and JAMS, the two
arbitrators chosen by the parties shall choose the third arbitrator by
reference to both lists. Each person chosen to serve as an arbitrator
shall be a neutral and impartial attorney who has had training and
experience as an arbitrator. The decision of a majority of the arbitrators
will be the decision of the arbitrators. The arbitrators shall permit such
discovery of information related to the controversy or claim in arbitration
as they shall determine is appropriate in the circumstances, taking into
account the needs of the Parties and the desirability of making discovery
expeditious and cost-effective.
10.3 Costs and Fees. All fees and expenses of the arbitrators,
expenses for hearing facilities and other expenses of the arbitration shall
be borne equally by the Parties unless the arbitrators in the award assess
such fees and expenses other than equally against the Parties, as provided
herein. Each Party shall bear the fees and expenses of its own attorneys
and witnesses except to the extent otherwise provided in this Agreement or
by law; provided, that if the arbitrators determine that the claim or
defense of any Party was frivolous or lacked a reasonable basis in fact or
law, the arbitrators may assess against such Party all or part of the fees
and expenses of attorneys and witnesses for the other Party.
Section 11 : Termination
11.1 Terminating Events. This Agreement may be terminated as follows:
(a) By the mutual written consent of NAS and SBCT; or
(b) By NAS, by ten (10) Business Days written notice to SBCT (if
NAS is not then materially in default or breach of this Agreement), if SBCT
shall default in any material respect in the performance of any of its
obligations under this Agreement, and such default or breach has not been
cured by SBCT within seven (7) Business Days following receipt of written
notice from NAS of NAS's intention to terminate this Agreement; or
(c) By SBCT, by ten (10) Business Days written notice to NAS (if
SBCT is not then materially in default or breach of this Agreement), if NAS
shall default in any material respect in the performance of any of its
obligations under this Agreement, and such default or breach has not been
cured by NAS within seven (7) Business Days following receipt of written
notice from SBCT of SBCT's intention to terminate this Agreement.
(d) If the parties have not received a Required Regulatory
Approval by July 15, 2001, SBCT, in its sole discretion, at any time
thereafter and by written notice to NAS, may terminate this Agreement as to
the Collocation Arrangements in the state for which the Required Regulatory
Approval has not been received, and SBCT shall have no liability to NAS
with respect to such termination.
11.2 Effect on Obligations. In the event of any termination of this
Agreement pursuant to Section 11.1(a) or 11.1(d), no Party shall have any
further liability hereunder, except for any liability or claim that arose
prior to the termination. In the event of a termination under Section
11.1(b) or 11.1(c), all Parties shall retain all their rights at law or in
equity.
Section 12 : Miscellaneous
12.1 Amendment. No amendment, modification or alteration of the terms
or provisions of this Agreement shall be binding unless the same shall be
in writing and duly executed by the Parties hereto.
12.2 Successors and Assigns. This Agreement may not be assigned by
NAS or SBCT without the consent of the other Party (which consent shall not
be unreasonably withheld) except that (i) SBCT may assign this Agreement to
any wholly-owned subsidiary of SBCT that agrees to be bound by all of the
terms hereof and (ii) NAS may assign this Agreement to an NAS Affiliate, or
an entity acquiring all or substantially all of NAS's assets or equity, in
each case that agrees to be bound by all of the terms hereof, and provided
that no such permitted assignment shall relieve any Party hereto of any
liability for a breach of this Agreement by such Party or its assignee.
This Agreement shall be binding upon and shall inure to the benefit of the
Parties hereto and their respective heirs or successors in interest.
12.3 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall for all purposes be deemed to be an
original and all of which shall constitute the same instrument.
12.4 Expenses. Except as specifically provided herein, SBCT and
NAS shall each pay all costs and expenses incurred by it or on its behalf
in connection with this Agreement and the transactions contemplated hereby,
including, without limiting the generality of the foregoing, fees and
expenses of its own consultants, accountants and counsel.
12.5 Notices. Any notice, request, instruction or other document to
be given hereunder by either Party hereto to the other Party shall be in
writing and shall be deemed given upon receipt if delivered personally or
by telex or facsimile, the next day if by express mail or three days after
being sent by registered or certified mail, return receipt requested,
postage prepaid to the following addresses (or at such other address for a
Party as shall be specified by like notice provided that such notice shall
be effective only after receipt thereof):
If to SBCT:
Vice President &
General Counsel
SBCT Telecom, Inc.
0000 Xxxxxxxxx Xxxxxxx,
0X00
Xxx Xxxxxxx, XX 00000
Facsimile: (210) 641-
3547
With a copy (which
shall
not constitute notice)
to:
SBC Telecom, Inc.
Xxxxx Xxxx Xxxxx, Xxxx
0000
Xxxxxx, XX 00000
Facsimile: (214) 858-
3275
If to NAS:
Xxxxxxxx Xxxx, CEO
Network Access
Solutions Corp.
00000 Xxxxxx Xxxxxxxxxx
Xxxxx
Xxxxxxx, XX 00000
Facsimile: (703) 793-
5400
With a copy (which
shall
not constitute notice)
to:
Legal Department
Network Access
Solutions Corp.
00000 Xxxxxx Xxxxxxxxxx
Xxxxx
Xxxxxxx, XX 00000
Facsimile: (703) 793-
5409
12.6 Severability. In case any one or more of the provisions
contained in this Agreement shall for any reason be held to be invalid,
illegal or unenforceable in any respect by a court or other authority of
competent jurisdiction, such invalidity, illegality or unenforceability
shall not affect any other provision hereof and this Agreement shall be
construed as if such invalid, illegal or unenforceable provision had never
been contained herein, it being the intent of the Parties to maintain the
benefit of the bargain for all Parties.
12.7 Governing Law. This Agreement shall be construed in
accordance with and governed by the laws of the State of Delaware
applicable to agreements made and to be performed wholly within such
jurisdiction.
12.8 Duty to Cooperate. The Parties agree to cooperate in good
faith to take any action not specifically set forth in this Agreement that
is reasonably required to effectuate the intent of this Agreement,
including the transactions described in this Agreement.
12.9 Entire Agreement. This Agreement, including the Schedules and
Exhibits attached hereto, constitutes the entire agreement between the
Parties and supersedes all prior oral or written agreements, negotiations,
understandings, proposals and undertakings with respect to the subject
matter hereof.
Signatures are on the next page
IN WITNESS WHEREOF, the Parties hereto have signed this Agreement, or
have caused this Agreement to be signed in their respective names by an
officer, hereunto duly authorized, on the date first above written.
NETWORK ACCESS SOLUTIONS CORPORATION
By: /s/ Xxxxxxxx Xxxxxxxx
Name: Xxxxxxxx Xxxxxxxx
Title: President
SBCT TELECOM, INC.
By: /s/ Lea Xxx Xxxxxxxx
Name: Lea Xxx Xxxxxxxx
Title: President and CEO
SCHEDULE A
LIST OF INTERCONNECTION AGREEMENTS AND COLLOCATION ARRANGEMENTS
TO BE PROVIDED BY NAS
SCHEDULE B
QWEST CONSENT
SCHEDULE C
QWEST/SBCT LETTER AGREEMENT
