EXHIBIT 99.2
CONFIDENTIAL PORTION MARKED [***] HAS BEEN OMITTED PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.
SBC Agreement No. 05040325
--------------------------
TERMINATION, MUTUAL RELEASE
AND SETTLEMENT AGREEMENT
AMONG
SBC COMMUNICATIONS INC.,
SBC OPERATIONS, INC. AND
SBC LONG DISTANCE, LLC,
ON BEHALF OF THEMSELVES AND THEIR AFFILIATES
AND
WILTEL COMMUNICATIONS GROUP, LLC
(F/K/A XXXXXXXX COMMUNICATIONS, INC.), AND
WILTEL COMMUNICATIONS, LLC
AND
LEUCADIA NATIONAL CORPORATION
(FOR CERTAIN LIMITED PURPOSES AS SET FORTH HEREIN)
TABLE OF CONTENTS
Page
I. DEFINED TERMS...............................................................................................1
II. EFFECTIVE DATE..............................................................................................5
III. PAYMENT TERMS AND TERMINATION OF ALLIANCE AGREEMENTS........................................................5
A. Termination Payment......................................................................................5
B. Payment Terms............................................................................................5
C. Termination of the Alliance Agreements...................................................................6
D. Covenant.................................................................................................6
E. Pass Through Claims......................................................................................6
IV. TERMS AND CONDITIONS........................................................................................6
A. Effective Date Deliveries................................................................................6
V. REPRESENTATIONS AND WARRANTIES..............................................................................7
A. SBC Entities.............................................................................................7
B. WilTel Entities..........................................................................................7
C. Leucadia.................................................................................................7
VI. MUTUAL RELEASE AND DISCHARGE................................................................................8
A. Release of SBC...........................................................................................8
B. Release of WilTel........................................................................................9
C. Waiver of California Civil Code ss. 1542 and Any Similar Statute of Another State........................9
VII. COVENANT NOT TO XXX........................................................................................10
VIII. PUBLIC ANNOUNCEMENT........................................................................................10
IX. GENERAL PROVISIONS.........................................................................................11
A. Integration.............................................................................................11
B. Challenges..............................................................................................11
C. Non-Waiver..............................................................................................11
D. No Admission............................................................................................11
E. Additional Actions......................................................................................12
F. Binding Nature..........................................................................................12
G. Equitable Relief........................................................................................12
H. No Drafting Presumption.................................................................................12
I. Choice of Law; Jurisdiction.............................................................................12
J. Validity of Counterparts; Facsimile Signatures..........................................................13
K. Effect of Headings......................................................................................13
L. Costs...................................................................................................13
M. Indemnity...............................................................................................13
N. Assignment..............................................................................................13
X. NOTICES....................................................................................................13
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TERMINATION, MUTUAL RELEASE
AND SETTLEMENT AGREEMENT
------------------------
This Termination, Mutual Release and Settlement Agreement
("Settlement Agreement") is entered into this 15th day of June, 2005 (the
"Effective Date") by and among SBC Communications Inc., SBC Operations, Inc. and
SBC Long Distance, LLC (successor to Southwestern Xxxx Communications Services,
Inc.), on behalf of themselves and all of their Affiliates (all such entities
enumerated herein individually, "SBC" and, collectively, "SBC Entities"), and
WilTel Communications Group, LLC (f/k/a Xxxxxxxx Communications, Inc.) and
WilTel Communications, LLC, on behalf of themselves and all of their
subsidiaries (each individually, "WilTel" and, collectively, "WilTel Entities"),
and, solely for the purposes of Sections I, II, III.D, V.C, VI, VII, VIII, IX
and X hereof, Leucadia National Corporation ("Leucadia").
RECITALS
WHEREAS, the SBC Entities and WilTel Entities are parties to the
Alliance Agreements (as hereinafter defined); and
WHEREAS, the SBC Entities and WilTel Entities desire (i) to terminate
the Alliance Agreements, and to enter into a new Master Services Agreement (as
hereinafter defined), and (ii) compromise and settle Claims (as hereinafter
defined) that have arisen or may arise between the SBC Entities (on the one
hand) and the WilTel Entities (on the other hand); and
WHEREAS, the Parties wish to enter into this Settlement Agreement to
set forth the terms and conditions of such termination, and such compromise and
settlement of their respective Claims; and
WHEREAS, the Parties would not have agreed to such termination, and
such compromise and settlement, or any term and condition thereof, but for their
mutual agreement upon each and every term and condition set forth in this
Settlement Agreement;
IT IS NOW, THEREFORE, AGREED AND CONSENTED TO, in consideration of
the mutual covenants and promises contained in this Settlement Agreement,
including without limitation the covenant of the Parties to execute the Master
Services Agreement, and in the Master Services Agreement and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, as follows:
AGREEMENT
I. DEFINED TERMS: When used herein, the following terms have the following
meanings:
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"Affiliate" - means as to any Person, any other Person that, directly
or indirectly, owns more than fifty percent (50%) of, is in control of, is
controlled by or is under common ownership or control with such Person. As used
in this definition, the term "control" means the possession, directly or
indirectly, of the power to direct or cause the direction of the management,
policies or activities of a Person, whether through ownership of voting
securities, by contract or otherwise.
"Alliance Agreements" - means the Master Alliance Agreement, dated as
of February 8, 1999, between SBC and WilTel, together with any and all ancillary
agreements and amendments executed by the SBC Entities and the WilTel Entities
in connection with the transactions contemplated thereby, including, without
limitation, the Transport Services Agreement, the Platform Services Agreement,
Network Development and Operations Agreement and the International Transport
Services Agreement, each dated as of February 8, 1999, the Transition Services
Agreement dated as of September 29, 2000, the Maintenance and Installation
Services Agreement dated as of September 29, 2000, the International
Transportation Services Agreement (Voice) dated as of September 28, 2001, and
the Access Agreement dated as of January 26, 1999, each as amended, augmented,
restated or supplemented through the date hereof. For the avoidance of any
doubt, "Alliance Agreements" shall not include (i) the Surviving Agreements and
(ii) the SBC ILEC Agreements.
"Bankruptcy Court Stipulation" - means that Stipulation and Agreement
entered into as of September 24, 2002 among certain WilTel Entities and SBC
Entities in respect of Chapter 11 case In Re Xxxxxxxx Communications Group, Inc.
before the United States Bankruptcy Court for the Southern District of New York.
"Business Day" - means any calendar day except Saturday, Sunday and
any federal holiday.
"Claims" - means all past and present disputes, potential disputes,
actions, causes of action, suits, arbitrations, covenants, agreements,
obligations, credits, amounts due, refunds, retroactive adjustments or refunds,
termination fees, claims under the filed rate doctrine, charges, complaints,
legal responsibilities, damages, judgments, claims, injuries, liabilities,
rights, penalties, fines, losses, bonds, bills, expenses, and demands
whatsoever, whether at law or in equity, whether known or unknown, suspected or
unsuspected, contingent or matured, and whether currently existing or hereafter
arising, including but not limited to causes of action for contract, tort and
other claims, and including, without limitation, claims based on negligence or
strict liability, for compensatory, equitable and/or injunctive relief, general,
specific or punitive damages, costs, losses, expenses and compensation, based on
any theory of recovery, arising out of or relating to the Alliance Agreements
and the Bankruptcy Court Stipulation and the rights and obligations of the
Parties thereunder, but excluding (i) the Ordinary Course Claims, (ii) the Pass
Through Claims and (iii) those that arise out of or relate to this Settlement
Agreement, the MSA or the Surviving Agreements or the SBC ILEC Agreements.
"Effective Date" - has the meaning ascribed thereto in the preamble.
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"Effective Date Documents" - has the meaning ascribed thereto in
Section IV.A of this Settlement Agreement.
"ILEC Claims" - means Claims in respect of periods on or prior to the
Effective Date between WilTel and any SBC ILEC.
"Initial Installment" - has the meaning ascribed thereto in Section
III.B of this Settlement Agreement.
"Installment" - has the meaning ascribed thereto in Section III.B.2
of this Settlement Agreement.
"Leucadia" - has the meaning ascribed thereto in the preamble.
"Master Services Agreement" or "MSA" - means the Master Services
Agreement in the form attached hereto, dated as of even date herewith, between
WilTel Communications, LLC, WilTel Local Network LLC and SBC Services, Inc. and
SBC Communications Inc. (for certain limited purposes as set forth therein).
"Ordinary Course Claims" - means (i) those claims and obligations
arising out of the invoices and other disputes identified on Schedule A hereto,
and are limited to the amounts specified in such invoices or disputes, and (ii)
the obligations arising out of services rendered under the Alliance Agreements
on or prior to the Effective Date that have not been billed or invoiced as of
the Effective Date.
"Parties" - means the SBC Entities and the WilTel Entities,
collectively.
"Party" - means any of the SBC Entities and the WilTel Entities,
individually.
"Pass Through Claims" - means any costs, expenses, charges or fees
incurred by WilTel and payable to third parties (including Affiliates of the SBC
Entities) and any credits, payments or refunds paid to WilTel by third parties
(including Affiliates of the SBC Entities) that, pursuant to the terms of any
Alliance Agreement, may be charged, credited or otherwise passed through by
WilTel to be paid, reimbursed or credited by, or to, the SBC Entities.
"Person" - means an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust, unincorporated
association, joint venture, governmental authority or other entity of whatever
nature.
"Refinancing" - means (i) any repayment or refinancing of all of the
outstanding obligations under the WilTel Credit Agreement or (ii) any amendment
or restatement of the WilTel Credit Agreement pursuant to which the parties
thereto acknowledge the existence of this Agreement and the MSA such that they
would have no Refinancing Claims against WilTel relating to the transactions
contemplated by this Agreement and the MSA.
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"Refinancing Claims" - means all damages, disputes, actions, causes
of action, suits, arbitrations or claims then existing or thereafter arising out
of the WilTel Credit Agreement as it existed prior to such amendment or
restatement.
"Releases" - has the meaning ascribed thereto in Section VI.C of this
Settlement Agreement.
"SBC" - has the meaning ascribed thereto in the preamble.
"SBC Entities" - has the meaning ascribed thereto in the preamble.
"SBC ILEC" - has the meaning ascribed thereto in the MSA.
"SBC ILEC Agreements" - means agreements, transactions or
arrangements between WilTel and an SBC ILEC, other than the Access Agreement
referred to in the definition of Alliance Agreements.
"SBC Releasees" - has the meaning ascribed thereto in Section VI.A of
this Settlement Agreement.
"SBC Releasors" - has the meaning ascribed thereto in Section VI.B of
this Settlement Agreement.
"Settlement Agreement" - has the meaning ascribed thereto in the
preamble.
"Surviving Agreements" - means the agreements identified on Schedule
C hereto.
"Termination Event" - means the earlier of (i) December 31, 2009 and
(ii) the effective date of any Refinancing.
"Termination Fee" - has the meaning ascribed thereto in Section III.A
of this Settlement Agreement.
"WilTel" - has the meaning ascribed thereto in the preamble.
"WilTel Credit Agreement" - means that certain Third Amended and
Restated Credit and Guaranty Agreement, dated as of September 24, 2004, among
WilTel Communications, LLC, as borrower, the guarantors and lenders party
thereto, and Credit Suisse First Boston, acting through its Cayman Islands
Branch, as Administrative Agent, as First Lien Administrative Agent and as
Second Lien Administrative Agent, together with any amendments, extensions,
renewals or restatements thereof.
"WilTel Entities" - has the meaning ascribed thereto in the preamble.
"WilTel Releasees" - has the meaning ascribed thereto in Section VI.B
of this Settlement Agreement.
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"WilTel Releasors" - has the meaning ascribed thereto in Section VI.A
of this Settlement Agreement.
II. EFFECTIVE DATE: The terms of this Settlement Agreement shall only become
effective upon the Effective Date.
III. PAYMENT TERMS AND TERMINATION OF ALLIANCE AGREEMENTS:
A. Termination Payment: In consideration of the terms and conditions set
forth in this Settlement Agreement, including termination of the
Alliance Agreements, the SBC Entities shall pay to the WilTel Entities
a termination fee of two hundred thirty-six million dollars
($236,000,000) (the "Termination Fee") pursuant to the payment terms
set forth below.
B. Payment Terms: The Termination Fee shall be paid as follows:
1. Eleven million dollars ($11,000,000) will be paid to WilTel on
January 3, 2006 (the "Initial Installment").
2. Thereafter, on the earlier of (a) April 30, 2006 or (b) the
earlier of the date of consummation or termination of SBC's
proposed acquisition of AT&T Corp., an installment payment in the
amount of eighteen million seven hundred fifty thousand dollars
($18,750,000) (each such payment being referred to herein as an
"Installment") shall be paid to WilTel and a further Installment
shall be paid to WilTel on the same day of each month thereafter
until WilTel has been paid a total of twelve Installments.
3. Each payment shall be made by wire transfer of immediately
available funds to an account designated by WilTel. If SBC fails
to make the Initial Installment or any other Installment when
due, SBC shall pay interest on the required payment at a rate of
eight percent (8%) per annum.
4. In the event of SBC's failure to pay the Initial Installment or
any subsequent Installment pursuant to Sections III.B.1 or
III.B.2 within fifteen (15) days following the date that SBC
receives written notice in accordance with Section X of its
failure to pay any such Installment, then all remaining
Installments shall accelerate and become immediately due and
payable to WilTel.
Upon the Effective Date, the Parties shall be forever estopped from seeking
any further claim, audit, verification, true-up, adjustment, refund or
offset with respect to all Claims from the beginning of time through and
including the Effective Date in accordance with Sections VI and VII.
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C. Termination of the Alliance Agreements: As of the Effective Date, the
Alliance Agreements shall be fully and finally terminated and shall no
longer be of any force or effect and no Party thereunder shall have
any further obligations or be entitled to any right or entitlement
benefit thereunder except (i) to the extent that the express terms of
this Settlement Agreement or the MSA provides for survival of any
terms thereof, (ii) the Ordinary Course Claims (it being understood
that any dispute(s) regarding the Ordinary Course Claims shall be
governed by and resolved under the terms of the MSA), (iii) the Pass
Through Claims, and (iv) to the extent that any provision of any
Alliance Agreement provides any SBC Entity or WilTel Entity, as the
case may be, with a right to dispute, or a defense to the payment of,
any Ordinary Course Claim or Pass Through Claim, such rights shall
survive the termination of such Alliance Agreement. For the avoidance
of any doubt, nothing herein shall be construed or be deemed to
terminate any of the Surviving Agreements or the SBC ILEC Agreements.
D. Covenant: If, at any time after the Effective Date and prior to a
Termination Event, the obligations of WilTel under the WilTel Credit
Agreement shall become due and payable as a result of an event of
default and subsequent acceleration of such obligations (which default
or acceleration is not challenged by WilTel or, if challenged, a court
of competent jurisdiction has determined the obligations under the
WilTel Credit Agreement to be due and payable), Leucadia shall cause
WilTel, including by Leucadia's advancing any necessary funds, to pay
each of the First Lien Term Notes and the Second Lien Loans (as
defined in the WilTel Credit Agreement) and any and all other
principal, interest, fees and expenses outstanding under the WilTel
Credit Agreement. If, following the Effective Date, the WilTel Credit
Agreement is amended or modified from time to time, the provisions of
this Section III.D. shall apply to any such WilTel Credit Agreement,
and the debt thereunder, as amended or modified.
E. Pass Through Claims: To the knowledge of the WilTel Entities, all of
the Pass Through Claims in existence on the Effective Date (other than
those items under (ii) in the definition of Ordinary Course Claims)
are set forth on Schedule B. For the purpose of this definition,
"knowledge of the WilTel Entities" means the knowledge of any officer
or director of any WilTel Entity. The SBC Entities shall be obligated
to pay or reimburse WilTel for Pass Through Claims, and WilTel shall
be obligated to credit the SBC Entities for Pass Through Claims, in
each case as provided under the MSA.
IV. TERMS AND CONDITIONS:
A. Effective Date Deliveries: On the Effective Date, each Party, to the
extent a party thereto, shall execute and deliver to the other Parties
the MSA and the other agreements, documents, and instruments
contemplated thereby or otherwise required to be executed and
delivered as of the Effective Date (collectively, the "Effective Date
Documents").
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V. REPRESENTATIONS AND WARRANTIES:
A. SBC Entities: Each of the SBC Entities hereby represents and warrants
to WilTel that: (a) this Settlement Agreement and the actions on SBC's
part contemplated hereby have been duly approved by all requisite
action on the part of SBC; (b) this Settlement Agreement has been duly
executed and delivered and constitutes the legal, valid, and binding
obligations of SBC, enforceable in accordance with its terms; (c) the
execution, delivery and performance of this Settlement Agreement does
not and will not violate or conflict with any provision of SBC's
Certificate of Incorporation or bylaws as in effect on the date
hereof; (d) it: (i) has read this Settlement Agreement, (ii) fully
understands all the terms and conditions hereof and the meaning of
each provision hereof (including specifically the releases and
covenants contained herein) and (iii) has entered into this Settlement
Agreement of its own free will and volition, and that it has been
advised to consult counsel, that it has had the opportunity to consult
with an attorney concerning this Settlement Agreement and that it
freely and voluntarily enters into it and (e) the Termination Fee was
negotiated by the SBC Entities on an arms length basis.
B. WilTel Entities: Each of the WilTel Entities hereby represents and
warrants to the SBC Entities that: (a) this Settlement Agreement and
the actions on WilTel's part contemplated hereby have been duly
approved by all requisite action on the part of WilTel; (b) this
Settlement Agreement has been duly executed and delivered and
constitutes the legal, valid, and binding obligations of WilTel,
enforceable in accordance with its terms; (c) the execution, delivery
and performance of this Settlement Agreement does not and will not
violate or conflict with any provision of WilTel's Certificate of
Incorporation or bylaws or other such governing instruments as in
effect on the date hereof; (d) it: (i) has read this Settlement
Agreement, (ii) fully understands all the terms and conditions hereof
and the meaning of each provision hereof (including specifically the
releases and covenants contained herein) and (iii) has entered into
this Settlement Agreement of its own free will and volition, and that
it has been advised to consult counsel, that it has had the
opportunity to consult with an attorney concerning this Settlement
Agreement and that it freely and voluntarily enters into it; and (e)
the Termination Fee was negotiated by the WilTel Entities on an arms
length basis.
C. Leucadia: Leucadia hereby represents and warrants to the SBC Entities
that: (a) this Settlement Agreement and the actions on Leucadia's part
contemplated hereby have been duly approved by all requisite action on
the part of Leucadia; (b) this Settlement Agreement has been duly
executed and delivered and constitutes the legal, valid, and binding
obligations of Leucadia, enforceable in accordance with its terms; (c)
the execution, delivery and performance of this Settlement Agreement
does not and will not violate or conflict with any provision of
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Leucadia's Certificate of Incorporation or bylaws as in effect on the
date hereof; (d) it: (i) has read this Settlement Agreement, (ii)
fully understands all the terms and conditions hereof and the meaning
of each provision hereof (including specifically the releases and
covenants contained herein) and (iii) has entered into this Settlement
Agreement of its own free will and volition, and that it has been
advised to consult counsel, that it has had the opportunity to consult
with an attorney concerning this Settlement Agreement and that it
freely and voluntarily enters into it; and (e) the Termination Fee was
negotiated by Leucadia on an arms length basis.
VI. MUTUAL RELEASE AND DISCHARGE:
A. Release of SBC: The WilTel Entities and Leucadia on behalf of and for
themselves and their respective Affiliates (collectively, the "WilTel
Releasors") hereby fully and unconditionally release, acquit and
forever discharge the SBC Entities, and their respective predecessors
and successors in interest, assigns, and Affiliates (collectively, the
"SBC Releasees") of and from, and do hereby relinquish, any Claims
which any or all of the WilTel Releasors may have against the SBC
Releasees, whether arising directly or indirectly out of, or relating
in any way to the aforementioned Claims. This release and this
discharge covers all of such Claims of every kind whatsoever, now
existing, matured or unmatured, direct or indirect, absolute or
contingent, and whether or not contemplated or asserted by WilTel
Releasors relating in any way to the aforementioned Claims, from the
beginning of time through and including the Effective Date.
Notwithstanding anything to the contrary elsewhere in Section VI,
nothing in this Settlement Agreement is intended to prevent or
preclude the Parties or Leucadia from participating in (including,
without limitation, initiating) current or future administrative,
judicial, regulatory, or other proceedings to the extent the subject
of such proceedings bears upon or relates to the Parties' or
Leucadia's respective financial or other obligations or rights arising
after the Effective Date including, without limitation, with respect
to post-Effective Date treatment or resolution of issues related to
and/or the enforcement of this Settlement Agreement (including without
limitation any claim with respect to the unpaid balance of the
Termination Fee), the Surviving Agreements, the SBC ILEC Agreements,
the Ordinary Course Claims, the Pass Through Claims and the MSA, and
does not prevent or preclude any WilTel Entity from disputing in good
faith any Ordinary Course Claims or Pass Through Claims or any
obligations under this Settlement Agreement or the MSA or any other
agreement entered into in connection with this Settlement Agreement.
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B. Release of WilTel: The SBC Entities on behalf of and for themselves
and their respective Affiliates (collectively, the "SBC Releasors")
hereby fully and unconditionally release, acquit and forever discharge
the WilTel Entities and Leucadia and their respective predecessors and
successors in interest, assigns, and Affiliates (collectively, the
"WilTel Releasees") and Leucadia of and from, and do hereby
relinquish, any and all Claims which any or all of the SBC Entities
may have against the WilTel Releasees arising directly or indirectly
out of, or relating in any way to any of the aforementioned Claims.
This release and this discharge covers all of such Claims of every
kind whatsoever, now existing, matured or unmatured, direct or
indirect, absolute or contingent, and whether or not contemplated or
asserted by SBC Releasors relating in any way to the aforementioned
Claims, from the beginning of time through and including the Effective
Date. Notwithstanding anything to the contrary elsewhere in Section
VI, nothing in this Settlement Agreement is intended to prevent or
preclude the Parties from participating in (including, without
limitation, initiating) current or future administrative, judicial,
regulatory, or other proceedings to the extent the subject of such
proceedings bears upon or relates to the Parties' or Leucadia's
respective financial or other obligations or rights arising after the
Effective Date including, without limitation, with respect to
post-Effective Date treatment or resolution of issues related to
and/or the enforcement of this Settlement Agreement, the Surviving
Agreements, the SBC ILEC Agreements, the Ordinary Course Claims, the
Pass Through Claims and the MSA, and does not prevent or preclude any
SBC Entity from disputing in good faith any Ordinary Course Claims or
Pass Through Claims or any obligations under this Settlement
Agreement, the MSA or any other agreement entered into in connection
with this Settlement Agreement.
C. ILEC Claims. Notwithstanding anything to the contrary contained in
this Settlement Agreement, no ILEC Claims shall be released pursuant
to the terms of this Settlement Agreement.
D. Waiver of California Civil Code ss. 1542 and Any Similar Statute of
Another State: With respect to the releases provided in Sections VI.A
and VI.B above (collectively, the "Releases"), each Party and Leucadia
further agrees that if, subsequent to the Effective Date, a Party or
Leucadia or any party released pursuant to the above Releases incurs
or suffers loss, damage, or injury that is in any way related to or
caused by the Claims, but which is unknown and unanticipated on the
Effective Date, the following applies:
1. Each Party and Leucadia hereby assumes the above-mentioned risks
and understand that the Releases SHALL APPLY TO ALL UNKNOWN OR
UNANTICIPATED RESULTS OF THE SETTLED CLAIMS DESCRIBED ABOVE, AS
WELL AS THOSE KNOWN AND ANTICIPATED, and upon advice of its
counsel, each Party and Leucadia hereby waives (i) any and all
rights under California Civil Code ss. 1542, which section has
been duly explained and reads as follows: "A general release does
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not extend to claims which the creditor does not know or suspect
to exist in his or her favor at the time of executing the
release", and (ii) any and all rights under any other similarly
worded statute of any state or jurisdiction, the law of which may
apply to this Settlement Agreement.
2. Each Party and Leucadia represents that it has obtained the
advice of legal counsel prior to such Person's execution and
delivery of this Settlement Agreement, and that such Person's
execution and delivery of this Settlement Agreement containing
the Releases set forth above are made voluntarily, with full
knowledge of their significance, and with the express intention
of (i) effecting the legal consequences provided by California
Civil Code ss. 1541 and ss.1542, i.e., the extinguishments of all
obligations, and (ii) of any other similarly worded statute of
any state or jurisdiction, the law of which may apply to this
Settlement Agreement.
VII. COVENANT NOT TO XXX: Each of the Parties and Leucadia, severally and for
itself only, covenants and agrees that it has released each other Party
pursuant to Section VI with regard to the Claims, and the Parties and
Leucadia are forever estopped from instituting any lawsuit or
administrative proceeding against any Person herein released or asserting
any Claim of any nature against any Person herein released with respect to
such Claims, except as otherwise set forth in this Settlement Agreement.
This Settlement Agreement shall constitute and is a general release of the
Claims. Each of the Parties and Leucadia represents and warrants to the
others that it has not heretofore assigned or transferred, or purported to
assign or transfer, any Claim, including without limitation, any demand,
debt, liability or cause of action herein released.
VIII. PUBLIC ANNOUNCEMENT: Each Party acknowledges that this Settlement
Agreement and the MSA (excluding the schedules, appendices and exhibits to
the MSA, except to the extent required to be filed by applicable law) will
be filed by Leucadia with the Securities and Exchange Commission, and shall
thereby be made public subject to confidential treatment of certain
competitive or proprietary information. In the event that any schedules,
appendices or exhibits to the MSA are required to be filed with the
Securities and Exchange Commission, Leucadia shall provide SBC a reasonable
opportunity to review and comment on the proposed filings. Notwithstanding
the forgoing, the Parties and Leucadia shall reasonably agree in advance on
the content of their respective press releases and/or public statements, if
any, regarding this Settlement Agreement and the MSA. Except to the extent
required pursuant to applicable law, no Party or Leucadia shall publish any
description of this Settlement Agreement, or any of the terms or conditions
hereof, without prior consultation with and consent of (i) SBC, with
respect to Leucadia or a Party that is one of the WilTel Entities, or (ii)
WilTel, with respect to a Party that is one of the SBC Entities.
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IX. GENERAL PROVISIONS:
A. Integration: This Settlement Agreement, together with the other
Effective Date Documents, contains the entire agreement pertaining to
the subject matter hereof, and supersedes any prior or contemporaneous
negotiations, representations, agreements and understandings of the
Parties and Leucadia with respect to such subject matter (including
the Alliance Agreements), whether written or oral. The Parties and
Leucadia acknowledge that they have not relied on any promise,
representation or warranty, expressed or implied, not contained in or
contemplated by this Settlement Agreement or the other Effective Date
Documents.
B. Challenges: The Parties and Leucadia each agree that they will not
seek to challenge or to have determined invalid, void or unenforceable
any provision of this Settlement Agreement or the Settlement Agreement
itself. The Parties and Leucadia understand that this Settlement
Agreement contains the relinquishment of legal rights and each has, as
each has deemed appropriate, sought the advice of legal counsel, which
each of the Parties and Leucadia has encouraged the other to seek.
Further, the Parties and Leucadia agree that none of them has reposed
such trust or confidence in the other Party or Leucadia so as to
create a fiduciary, agency or confidential relationship.
C. Non-Waiver: Except as otherwise specified in this Settlement
Agreement, no amendment of or waiver of the performance of any
provision of this Settlement Agreement and no consent to any default
under this Settlement Agreement shall be effective unless the same is
in writing and properly executed by or on behalf of the Party or
Leucadia against whom such waiver, amendment or consent is claimed.
Waiver by either Party or Leucadia of any default by the other Party
or Leucadia shall not be deemed a waiver of any other default. Failure
of a Party or Leucadia to insist on performance of any term or
condition of this Settlement Agreement or to exercise any right or
privilege hereunder shall not be construed as a continuing or future
waiver of such term, condition, right or privilege. No course of
dealing or failure of any Party or Leucadia to strictly enforce any
term, right or condition of this Settlement Agreement in any instance
shall be construed as a general waiver or relinquishment of such term,
right or condition.
D. No Admission: This Settlement Agreement is the result of good faith
negotiations and compromise. The agreements and the Releases contained
in this Settlement Agreement affect the Claims which are denied and
contested, and nothing set forth herein shall be construed as an
admission by any Party or Leucadia hereto of any liability of any kind
to the other, or to any other Person.
C-11
E. Additional Actions: Each of the Parties and Leucadia covenants and
agrees, severally and for itself and its Affiliates only, to take
additional actions that may be reasonably necessary or appropriate to
fully effectuate the terms, intent and conditions of this Settlement
Agreement.
F. Binding Nature: This Settlement Agreement shall inure to the benefit
of the Parties and Leucadia and shall be binding upon the Parties and
Leucadia and their respective successors and permitted assigns.
G. Equitable Relief: Each Party and Leucadia acknowledge and agree that
money damages would not be a sufficient remedy for any breach of this
Settlement Agreement by another Party or Leucadia, as the case may be,
and that the non-breaching Party or Parties or Leucadia will be
entitled to equitable relief, including injunction and specific
performance for any such breach. Such remedies are not to be the
exclusive remedies for a breach of this Settlement Agreement, but will
be in addition to all other remedies available at law or equity.
H. No Drafting Presumption: The Parties and Leucadia hereto have had the
opportunity to be represented by counsel in their negotiations of the
terms of this Settlement Agreement. This Settlement Agreement will be
deemed to have been drafted jointly by the Parties and Leucadia and
therefore no provision of this Settlement Agreement shall be construed
against any Party or Leucadia on the theory that such Party or
Leucadia drafted such provision.
I. Choice of Law; Jurisdiction: This Settlement Agreement shall be
governed by and construed in accordance with the domestic laws of the
State of New York without giving effect to any choice or conflict of
law provision or rule that would cause the application of the laws of
any jurisdiction other than the State of New York. All actions and
proceedings arising out of or relating to this Settlement Agreement
shall be heard and determined exclusively in a state court or any
federal court sitting in New York County, the State of New York. The
Parties and Leucadia each hereby (a) submits to the exclusive
jurisdiction of any such state or federal court sitting in New York
County, the State of New York for the purpose of any action or
proceeding arising out of or relating to this Settlement Agreement
brought by any Party or Leucadia and (b) irrevocably waives, and
agrees not to assert by way of motion, defense, or otherwise, in any
such action or proceeding, any claim that it is not subject personally
to the jurisdiction of the above-named courts, that its property is
exempt or immune from attachment or execution, that such action or
proceeding is brought in an inconvenient forum, that the venue of such
action or proceeding is improper, or that this Settlement Agreement or
the transactions contemplated hereby may not be enforced in or by any
of the above-named courts.
C-12
J. Validity of Counterparts; Facsimile Signatures: This Settlement
Agreement may be executed simultaneously in any number of counterparts
and sent via facsimile to the other Party or Leucadia, each of which
when so executed and delivered shall be taken to be an original, but
such counterparts shall together constitute but one and the same
document. Telefacsimile transmissions of any executed original
counterpart signature page to this Settlement Agreement and/or
retransmission of any such executed telefacsimile transmission shall
be deemed to be the same as the delivery of an executed original and
the Parties and Leucadia may not claim any defect based upon the other
Party's inability to produce a "hard" signature copy. At the request
of a Party or Leucadia, a Party or Leucadia shall confirm
telefacsimile transmissions by executing duplicate original documents
and delivering the same to the requesting Party or Leucadia.
K. Effect of Headings: Headings in this Settlement Agreement are for
convenience of reference only and shall not affect its interpretation
or construction.
L. Costs: Except as provided in Section IX.M, each Party and Leucadia
shall bear its own costs, fees and expenses in any way related to the
negotiation, preparation, execution and delivery of this Settlement
Agreement and the obligations and Releases contained herein.
M. Indemnity: Each Party and Leucadia shall indemnify and hold each other
Party or Leucadia harmless from and against all liability, claim,
loss, damage or expense, including, without limitation, reasonable
attorneys' fees, incurred or required to be paid by such other Party
or Leucadia by reason of any breach or failure of observance or
performance of any representation, warranty or covenant or other
provision of this Settlement Agreement by the indemnifying Person, or
incurred by such indemnified Party or Leucadia in enforcing any of its
rights hereunder against such indemnifying Person.
N. Assignment: Neither this Settlement Agreement nor any of the rights,
interests or obligations hereunder may be assigned or delegated, in
whole or in part, by operation of law or otherwise, by any of the
Parties and Leucadia without the prior written consent of the other
Parties.
X. NOTICES: All notices pursuant to this Settlement Agreement shall be
provided, by (a) fax or e-mail and (b) first class mail, as follows and
shall be deemed effective upon receipt of same:
C-13
If to any of the WilTel Entities to:
Xxxxxxx Xxxxxx
President and CEO
WilTel Communications, LLC
Xxx Xxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000
Facsimile Number: 918-547-[***]
With a copy (which shall not constitute notice to a Party) to:
Xxxxxx Xxxxxx
Senior Vice President, Voice Services and Strategic Markets
WilTel Communications, LLC
0000 Xxxx Xxxx Xxxx
Xxxxx 000
Xxxxxxxx, Xxxxxxxx 00000
Facsimile: 847-678-[***]
and
Xxxxxxx X. Xxxxx
Shearman & Sterling LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile Number: 212-848-7179
If to Leucadia to:
Xxxxxx X. Xxxxxxxxx
Leucadia National Corporation
000 Xxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile Number: 212-598-[***]
With a copy (which shall not constitute notice to Leucadia) to:
Xxxxxxx X. Xxxxx
Shearman & Sterling LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile Number: 212-848-7179
C-14
If to any of the SBC Entities to:
Xxxxx X. Xxxxx and/or Xxxx X. Xxxxxxx
SBC Communications Inc.
000 Xxxx Xxxxxxx Xxxxxx,
Xxx Xxxxxxx, Xxxxx 00000
Facsimile Number: 210-351-[***]
With a copy (which shall not constitute notice to a Party) to:
Xxxxx Xxxxx
Senior Vice President and Assistant General Counsel
SBC Communications Inc.
000 Xxxx Xxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxx 00000
Facsimile Number: 210-351-[***]
[Signature Page Follows]
C-15
IN WITNESS WHEREOF, the parties have executed this Settlement
Agreement on the respective dates entered below.
WilTel Communications, LLC SBC Communications Inc.
By: By:
---------------------------- --------------------------------
(Signature) (Signature)
Name: Name:
------------------------- ----------------------------
Title: Title:
------------------------- ----------------------------
WilTel Communications Group, LLC SBC Operations, Inc.
By: By:
---------------------------- --------------------------------
(Signature) (Signature)
Name: Name:
------------------------- ----------------------------
Title: Title:
------------------------- ----------------------------
SBC Long Distance, LLC
By:
-------------------------------
(Signature)
Name:
---------------------------
Title:
---------------------------
Agreed solely as to the provisions of
Sections I, II, III.D, V.C, VI, VII, VIII, IX and X
Leucadia National Corporation
By:
---------------------------
(Signature)
Name:
--------------------------
Title:
--------------------------
C-16
