Opinion
Case No. 02-13533 (AJG) (Jointly Administered)
April 1, 2003
Scott Ewart, ATT Canada Inc., Attorneys for ATT Canada, Inc.
Alfredo R. Perez, Weil, Gotshal Manges LLP, Attorneys for UUNET Technologies, Inc.
STIPULATION AND AGREED ORDER GRANTING ATT CANADA, INC LIMITED RELIEF FROM THE AUTOMATIC STAY
This Stipulation and Agreed Order is entered into among UUNET Technologies, Inc. ("UUNET"), one of the above-captioned debtors, and ATT Canada Inc. ("ATT Canada").
WHEREAS, on July 21, 2002 (the "Commencement Date") and November 8, 2002, WorldCom, Inc. and certain of its direct and indirect subsidiaries, including UUNET (collectively, "WorldCom"), commenced cases under chapter 11 of the Bankruptcy Code. By Orders dated July 22, 2002 and November 12, 2002, WorldCom's chapter 11 cases have been consolidated for procedural purposes. WorldCom continues to operate its businesses and manage its properties as debtors in possession pursuant to sections 1107(a) and 1108 of the Bankruptcy Code; and
WHEREAS, on October 15, 2002 (the "ATT Commencement Date"), ATT Canada and certain of its affiliates commenced reorganization proceedings (the "Foreign Proceedings") under the Canadian Companies' Creditors Arrangement Act (the "CCAA") in the (Ontario) Superior Court of Justice, Commercial List, in the City of Toronto, Ontario, Canada (the "Ontario Court"); and
WHEREAS, as of the Commencement Date, UUNET and ATT Canada were party to two service agreements known to the parties as CTN 47126 and CTN 47072 whereby UUNET purchased telecommunications services from ATT Canada (the "Service Agreements"); and
WHEREAS, on the ATT Commencement Date, the Ontario Court granted the ATT Canada's request for a stay of proceedings against the Foreign Debtors (the "Canadian Order"). Pursuant to Section 8(d) of the Canadian Order, ATT Canada has the unilateral right to terminate, resiliate or repudiate arrangements and agreements of any nature whatsoever, whether written or oral, and has determined that it is in the best interests of ATT Canada to terminate the Service Agreements; and
WHEREAS, since the Commencement Date, WorldCom has reviewed its network strategy and operating capacity. In connection therewith, WorldCom determined that it does not require the telecommunications services provided by ATT Canada pursuant to the Service Agreements. Accordingly, both WorldCom and ATT Canada desire to terminate the Service Agreements; and
WHEREAS, WorldCom and ATT Canada have agreed to the modification of the automatic stay in these chapter 11 cases for the sole purpose of allowing ATT Canada to provide notice of termination of the Service Agreements consistent with its authority under the Canadian Order.
IT IS HEREBY ORDERED THAT:
1. The Motion is granted, and the automatic stay in the above-captioned bankruptcy cases is hereby modified solely to allow ATT Canada to provide UUNET with a "Notice of Termination of Service Agreements," and to allow UUNET to execute and deliver the Consent to Termination of Service Agreements, all as provided for in the form annexed as Exhibit "A" hereto.
2. ATT Canada hereby releases and discharges UUNET for all claims (as defined in section 101(5) of the Bankruptcy Code), damages and causes of action of whatever kind and nature (including any claims for attorney's fees), whether known or unknown, fixed or contingent, matured or unmatured, liquidated or unliquidated or otherwise, arising from, related to, or concerning the Service Agreements or the termination, resiliation or repudiation thereof.
EXHIBIT "A" NOTICE OF TERMINATION OF SERVICE AGREEMENTS
Date: February 26, 2003
To: UUNET Technologies, Inc. ("UUNET") c/o WorldCom Canada Inc. Suite 1300,60 Adelaide Street East Toronto, Ontario M5C 3E4
TAKE NOTICE that:
1. On October 15, 2002, a court order in respect of the undersigned ("ATT") was granted under the Companies' Creditor Arrangement Act, R.S.C. 1985, c. C-36, as amended (the "Order"), and extensions thereof were granted on November 14, 2002 and February 25, 2003.
2. Pursuant to section 8(d) of the Order, ATT may terminate, resiliate or repudiate arrangements and agreements of any nature whatsoever, whether written or oral.
3. ATT hereby gives you notice that the undersigned hereby terminates the two (2) service agreements known as CTN 47126 and CTN 47072 (the "Service Agreements"), which Agreements provide UUNET with local loops for access to the commercial Internet.
4. The termination of the Agreements is effective as at January 31, 2003, and only upon satisfaction of a condition that UUNET delivers to the undersigned the consent attached as Exhibit "A" together with a Stipulated Order for Relief from the Automatic Stay to Provide Notice of Termination in the form attached as Exhibit "B". For greater certainty, UUNET does not have to make any more payments in respect of the Service Agreements.
5. ATT Canada hereby releases and discharges UUNET from any and all claims, damages and causes of action of whatever kind and nature (including any claims for lawyer's fees), whether known or unknown, fixed or contingent, matured or unmatured, liquidated or unliquidated or otherwise, arising from, related to, or concerning the Service Agreements or the termination thereof.
ATT CANADA INC.
_________________________________ Scott Ewart Senior Vice President, General Counsel and Secretary
EXHIBIT "A" CONSENT TO TERMINATION OF SERVICE AGREEMENTS
To: ATT Canada Inc. 200 Wellington Street West Toronto, Ontario M5V 3G2
WHEREAS authorized representatives of each of UUNET and ATT have discussed the business and legal issues relating to the foregoing termination of the Service Agreements;
AND WHEREAS each of UUNET and ATT have determined that, in their business judgment, it is in the best interests of both corporations that the foregoing Service Agreements be terminated as at January 31, 2003;
THE UNDERSIGNED hereby (a) consents to the termination of the foregoing Agreements effective as at January 31, 2003; and (b) releases and discharges ATT Canada from any and all claims, damages and causes of action of whatever kind and nature (including any claims for lawyer's fees), whether known or unknown, fixed or contingent, matured or unmatured, liquidated or unliquidated or otherwise, arising from, related to, or concerning the Service Agreements or the termination thereof.
Dated February __, 2003
UUNET TECHNOLOGIES INC. c/o Suite 1300, 60 Adelaide St. E. Toronto, Ontario M5C 3E4
_________________________________ Name: Title: