EXHIBIT 2.14
AMENDMENT NO. 2 TO
PURCHASE AGREEMENT
This Amendment No. 2 (this "Amendment No. 2"), dated as of May 13, 2003,
is by and among Global Crossing Ltd., a company organized under the Laws of
Bermuda (the "Company"), Global Crossing Holdings Ltd., a company organized
under the Laws of Bermuda ("GX Holdings"), and Singapore Technologies Telemedia
Pte Ltd, a company organized under the Laws of Singapore ("ST Telemedia"), and
amends the Purchase Agreement, dated as of August 9, 2002, by and among the
Company, GX Holdings, the Joint Provisional Liquidators of the Company and GX
Holdings (the "Joint Provisional Liquidators"), ST Telemedia and Xxxxxxxxx
Telecommunications Limited, a company organized under the Laws of Hong Kong
("Xxxxxxxxx"), as amended by the Amendment to Purchase Agreement dated as of
December 20, 2002 (as amended, the "Agreement"). Capitalized terms used but not
defined herein have the meanings given thereto in the Agreement.
WHEREAS, as set forth in a letter dated April 30, 2003 from Xxxxxxxxx to
the other parties to the Agreement, Xxxxxxxxx terminated its rights and
obligations under the Agreement pursuant to Section 7.1(b) thereof, and not
those of ST Telemedia (the "Xxxxxxxxx Xxxxx 30, 2003 Letter");
WHEREAS, as set forth in a letter dated April 30, 2003 from ST Telemedia
to the other parties to the Agreement, ST Telemedia assumed the rights and
obligations of Xxxxxxxxx under the Agreement pursuant to Section 8.3(b) thereof
(the "ST Telemedia April 30, 2003 Letter");
WHEREAS, pursuant to a letter dated April 30, 2003 from the Company to
Xxxxxxxxx and ST Telemedia (the "Acknowledgement Letter"), the Company
acknowledged and agreed with such termination by Xxxxxxxxx and acknowledged such
assumption by ST Telemedia;
WHEREAS, pursuant to Section 5.8 of the Agreement, the Joint Provisional
Liquidators have delivered their express consent to the execution of this
Amendment No. 2 by the parties hereto; and
WHEREAS, in connection with the Xxxxxxxxx Xxxxx 30, 2003 Letter, the ST
Telemedia April 30, 2003 Letter and the Acknowledgement Letter, the parties
hereto desire, upon the approval of the U.S. Bankruptcy Court of this Amendment
No. 2, to effect certain amendments to the Agreement to reflect ST Telemedia's
continuing as the sole Investor under the Agreement, and to make certain other
amendments as hereinafter set forth, and such amendments may be effected
pursuant to Section 8.6 of the Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements set forth in this Amendment No. 2 and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
1. Interpretation. In giving effect to the Xxxxxxxxx Xxxxx 30, 2003
Letter, the ST Telemedia April 30, 2003 Letter and the Acknowledgement Letter,
and for the avoidance of doubt:
(a) Xxxxxxxxx'x right and obligation to subscribe for the New Company
Shares under Article I of the Agreement shall be assigned to and assumed by ST
Telemedia such that, at the Closing, ST Telemedia shall subscribe for, and the
Company shall cause New GX to issue to ST Telemedia, or to a subsidiary of ST
Telemedia to which it is entitled to assign its rights pursuant to Section 8.3
of the Agreement, 6,600,000 New Common Shares and 18,000,000 New Preferred
Shares, and ST Telemedia shall pay to New GX an aggregate Purchase Price of
$250,000,000 for the New Company Shares.
(b) All references in the Agreement to "each Investor", "each of the
Investors", "either Investor", "the Investor", "the Investors" or similar terms
which reflect the existence of more than one "Investor" shall refer solely to ST
Telemedia. All references in the Agreement to "Xxxxxxxxx" (other than in Article
III of the Agreement) shall refer to ST Telemedia. In each case, where the
Agreement or the other Transaction Documents provides for ST Telemedia and
Xxxxxxxxx to provide a decision, approval, consent, waiver or judgment, such
decision, approval, consent, waiver or judgment shall be provided solely by ST
Telemedia.
(c) The rights of Xxxxxxxxx under the Agreement which have been
assigned to, and the obligations of Xxxxxxxxx under the Agreement which have
been assumed by, ST Telemedia are as set forth in the ST Telemedia April 30,
2003 Letter and the Acknowledgment Letter.
2. Amendments. Pursuant to Section 8.6 of the Agreement, the parties
agree as follows:
(a) The first sentence of Section 4.4 of the Agreement shall be
amended and restated as follows:
"The Company agrees to take all actions necessary or appropriate such
that, at Closing, the board of directors of New GX will be comprised of ten
directors, eight of whom shall be nominated by ST Telemedia and two of whom
shall be nominated by the Creditors' Committee."
(b) The text of Sections 6.2(b), 6.2(i) and 7.1(g) of the Agreement
shall be deleted in their entirety and replaced with "[Intentionally Omitted]".
(c) Section 6.2(c) of the Agreement shall be amended and restated in
its entirety as follows:
"(c) The Company shall have performed, satisfied and complied in all
material respects with each of its covenants and agreements set forth in this
Agreement and each of the other Transaction Documents to be performed, satisfied
and complied with on or after the date hereof and prior to or at the Closing."
(d) Section 7.1(b) of the Agreement shall be amended and restated in
its entirety as follows:
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"(b) by the Company or the Investor if the Closing shall not have been
consummated on or before the earlier of (i) the Outside Date and (ii) the date
on which the Investor is notified in writing by the Company, a Subsidiary, or a
Governmental Entity that a material Regulatory Approval has been denied, will
not be approved, or has or will be approved subject to conditions that would
constitute a Material Adverse Effect or have a material adverse effect on the
Investor; provided, that (A) a party shall not be entitled to terminate this
Agreement pursuant to this Section 7.1(b) if the failure of the Closing to occur
by the relevant date is the result of any failure by such party to comply fully
with its obligations hereunder (including without limitation its obligation to
use its reasonable best efforts to obtain all Regulatory Approvals), and (B) in
the event all of the conditions set forth in Article VI (other than conditions
which, by their nature, can only be satisfied at Closing) shall have been
satisfied or waived by the parties hereto on or before the Outside Date, other
than the condition set forth in Section 6.2(e) regarding the Other Exit Costs as
a result of a dispute regarding the calculation thereof, then the termination
right set forth in this Section 7.l(b) shall not be available to the Company or
the Investor until the date on which it is determined in accordance with Section
8.14 that the Company will not be able to satisfy such condition."
(e) Section 7.1(c) of the Agreement shall be amended and restated in
its entirety as follows:
"(c) by the Investor if the Company shall have breached its
representations, warranties, covenants or other agreements contained in this
Agreement in a manner which would cause the condition set forth in Section
6.2(a) or 6.2(c) to fail to have been met, or the condition set forth in the
last sentence of Section 6.2(a) shall not have been satisfied;"
(f) A new definition of each of "Amendment No. 2 Filing Date" and
"Outside Date" shall be added in alphabetical order in Section 8.1 of the
Agreement to read as follows, respectively:
""Amendment No. 2 Filing Date" shall mean the date the Amendment No. 2,
dated as of May 13, 2003 by and among the Company, GX Holdings and ST
Telemedia, is submitted for approval to the U.S. Bankruptcy Court."
""Outside Date" shall mean the date falling five months after the
Amendment No. 2 Filing Date."
(g) The references to "April 30, 2003" in Exhibit C of the Agreement
shall be deleted and replaced with "the Outside Date".
3. Representations and Warranties of the Company and GX Holdings. Each of
the Company and GX Holdings hereby represents and warrants to ST Telemedia as
follows:
(a) Due Authorization; Enforceability. Subject to the requirements
that, (i) the Joint Provisional Liquidators consent to the Company's and GX
Holdings' entry into this Amendment No. 2 (which consent has been obtained
concurrently on the date hereof), (ii) the U.S. Bankruptcy Court approves the
Company's and GX Holdings' entry into this Amendment No. 2 and (iii) the Joint
Provisional Liquidators have not withdrawn their consent to the Company's and GX
Holding's entry into the Agreement or this Amendment No. 2 pursuant to their
fiduciary duties under Bermuda Law or pursuant to any order of the
0
Xxxxxxx Xxxxx, each of the Company and GX Holdings has all right, corporate
power and authority to enter into, execute and deliver this Amendment No. 2 and
to consummate the transactions contemplated hereby. The execution and delivery
by each of the Company and GX Holdings of this Amendment No. 2 and the
compliance by each of the Company and GX Holdings with each of the provisions of
this Amendment No. 2 are within the corporate power and authority of the Company
and GX Holdings and have been duly authorized by all requisite corporate and
other action of the Company and GX Holdings. This Amendment No. 2 has been duly
and validly executed and delivered by the Company and GX Holdings and this
Amendment No. 2 constitutes a legal, valid and binding agreement of the Company
and GX Holdings, enforceable against the Company and GX Holdings in accordance
with its terms.
(b) No Conflicts or Violations; Consents. Neither the execution,
delivery or performance by each of the Company and GX Holdings of this Amendment
No. 2 and the other transactions contemplated hereby will: (i) conflict with, or
result in a breach or a violation of, any provision of the memorandum of
association, certificate of incorporation or bylaws or other organizational
documents of the Company or any Subsidiary; (ii) constitute, with or without
notice or the passage of time or both, a breach, violation or default, create
any Encumbrance, or give rise to any right of termination, modification,
cancellation, prepayment, suspension, limitation, revocation or acceleration,
under any Law applicable to or binding on the Company or any Subsidiary or any
provision of any Commitment to which the Company or any Subsidiary is a party or
pursuant to which any of them or any of their assets or properties is subject,
except for breaches, violations, defaults, Encumbrances, or rights of
termination, modification, cancellation, prepayment, suspension, revocation or
acceleration, which would not reasonably be expected to result in, individually
or in the aggregate, a Material Adverse Effect; (iii) except for the approval by
the U.S. Bankruptcy Court, the consent of the Joint Provisional Liquidators
(which consent has been obtained concurrently on the date hereof) and any other
Regulatory Approvals, require any consent, approval or authorization of,
notification to, filing with, or exemption or waiver by, any Governmental Entity
or any other Person on the part of the Company or any Subsidiary; or (iv)
require a re-solicitation of votes of creditors in connection with the
Bankruptcy Plan or Schemes of Arrangement.
4. Representations and Warranties of ST Telemedia. ST Telemedia hereby
represents and warrants to the Company as follows:
(a) Due Authorization; Enforceability. ST Telemedia has all right,
power and authority to enter into, execute and deliver this Amendment No. 2 and
to consummate the transactions contemplated hereby. The execution and delivery
by ST Telemedia of this Amendment No. 2 and the consummation by ST Telemedia of
the transactions contemplated hereby (i) are within the power and authority of
ST Telemedia and (ii) have been duly authorized by all necessary action on the
part of ST Telemedia. This Amendment No. 2 constitutes a legal, valid and
binding agreement of ST Telemedia, enforceable against ST Telemedia in
accordance with its respective terms, except as such enforcement is limited by
bankruptcy, insolvency and other similar Laws affecting the enforcement of
creditors' rights generally and for limitations imposed by general principles of
equity.
(b) Consents; No Violations. Neither the execution, delivery or
performance by ST Telemedia of this Amendment No. 2 nor the consummation by ST
Telemedia of the transactions contemplated hereby will: (i) conflict with, or
result in a breach
4
or violation of, any provision of the organizational documents of ST Telemedia;
(ii) constitute, with or without notice or the passage of time or both, a
breach, violation or default, create an Encumbrance, or give rise to any right
of termination, modification, cancellation, prepayment, suspension, limitation,
revocation or acceleration, under (A) any Law or (B) any provision of any
Commitment of ST Telemedia, or to which ST Telemedia or any of its assets or
properties is subject, except, with respect to the matters set forth in clause
(B), for breaches, violations, defaults, Encumbrances, or rights of termination,
modification, cancellation, prepayment, suspension, limitation, revocation or
acceleration, which, individually or in the aggregate, could not have a material
adverse effect on the ability of ST Telemedia to consummate the transactions
contemplated hereby; or (iii) to the knowledge of ST Telemedia and except for
the approval by the U.S. Bankruptcy Court, the consent of the Joint Provisional
Liquidators (which consent has been obtained concurrently on the date hereof)
and any other Regulatory Approvals, require any consent, approval or
authorization of, notification to, filing with, or exemption or waiver by, any
Governmental Entity or any other Person on the part of ST Telemedia.
5. Effectiveness; Cooperation. Notwithstanding anything contained herein,
this Amendment No. 2 shall not become effective until the date it is approved by
the U.S. Bankruptcy Court (such date, the "Amendment No. 2 Approval Date"). ST
Telemedia hereby acknowledges and agrees that each of the Company and GX
Holdings may withdraw any motion to the U.S. Bankruptcy Court to approve this
Amendment No. 2 if ST Telemedia fails to sign and deliver to the Company a
confirmation letter, substantially in the form of Exhibit A hereto, prior to the
hearing date set by the U.S. Bankruptcy Court to approve this Amendment No. 2.
Each party hereto agrees to cooperate with each other and to use its reasonable
efforts to execute and deliver any instruments or documents and to take, or
cause to be taken, all actions necessary, proper or advisable in order to give
effect to the consummation of the transactions contemplated by this Amendment
No. 2 (including without limitation the making of any necessary filings or
notices and the seeking of all required approvals in connection with the
Bankruptcy Case, the Bermuda Case or the Regulatory Approvals and the making of
all necessary or desirable amendments to the Transaction Documents to give
effect to this Amendment No. 2) and to otherwise carry out the intent of the
parties under this Amendment No. 2.
6. Press Releases. ST Telemedia and the Company shall consult with each
other before issuing any press release or public announcement pertaining to this
Amendment No. 2 and shall not issue any such press release or make any such
public announcement without the prior written consent of the other party, which
consent shall not be unreasonably withheld, except as may be required by
applicable Law or by obligations pursuant to any listing agreement with any
securities exchange or market, in which case the party proposing to issue such
press release or make such public announcement shall use its reasonable efforts
to consult in good faith with the other party before issuing any such press
releases or making any such public announcements.
7. Fees and Expenses. In addition to, and not in diminution of, the
reimbursement rights provided to ST Telemedia pursuant to Section 4.6 of the
Agreement, the Company shall (a) promptly reimburse and pay to ST Telemedia all
reasonable, actual, documented, out-of-pocket costs and expenses incurred by ST
Telemedia, for the period commencing on May 25, 2002 and ending on the earlier
to occur of the Closing Date or the termination of the Agreement by ST Telemedia
or the Company in accordance with its terms, in connection with the Bankruptcy
Case, the Schemes of Arrangement and the transactions
5
contemplated by the Agreement and the other Transaction Documents (collectively,
the "ST Telemedia Expenses") up to an amount equal to $2,250,000, and (b)
reimburse and pay to ST Telemedia up to an additional $2,250,000 for any ST
Telemedia Expenses in excess of the $2,250,000 payable under Section 7(a) above,
promptly upon the earlier to occur of the Closing Date or the termination of the
Agreement by ST Telemedia or the Company in accordance with its terms, provided
however, (i) in each case, the Company shall not be required to reimburse ST
Telemedia for any ST Telemedia Expenses that have already been reimbursed as
Post-Petition Investors' Expenses pursuant to Section 4.6 of the Agreement and
(ii) with respect to Section 7(b) above, in the event Liquidated Damages are
payable to ST Telemedia under the Agreement in connection with any such
termination of the Agreement, the amount of Liquidated Damages payable to ST
Telemedia shall be offset dollar-for-dollar by any amounts paid to ST Telemedia
by the Company under Section 7(b). The ST Telemedia Expenses shall include all
out-of-pocket expenses, costs and other fees of Xxxxxxx Xxxxx (Singapore) Pte.
Ltd., other than the success fees owed to Xxxxxxx Xxxxx (Singapore) Pte. Ltd.
that are payable in connection with the successful consummation of the
transactions contemplated by the Agreement and the other Transaction Documents.
8. Termination. Each of the Company, GX Holdings and ST Telemedia may
terminate this Amendment No. 2 upon the occurrence of any of the following:
(a) The Amendment No. 2 Filing Date does not occur on or before May
14, 2003;
(b) The Company or GX Holdings, in accordance with the second sentence
of Section 5 of this Amendment No. 2, withdraws the motion to the U.S.
Bankruptcy Court to approve this Amendment No. 2; or
(c) The Amendment No. 2 Approval Date does not occur on or before June
9, 2003.
9. Confirmation of Agreement. Except as herein expressly amended, the
Agreement shall remain in full force and effect in accordance with its terms.
10. Governing Law; Submission to Jurisdiction. This Amendment No. 2 shall
be governed by and construed, interpreted and enforced first in accordance with
and governed by the Bankruptcy Code and the applicable case law under the
Bankruptcy Code and, to the extent that the Bankruptcy Code and the applicable
case law under the Bankruptcy Code do not address the matter at hand, then, in
accordance with and governed by the internal Laws of the State of New York,
without giving effect to the principles of conflicts of law thereof. The parties
hereby agree that, without limitation of any party's right to appeal any order
of the U.S. Bankruptcy Court, (a) the U.S. Bankruptcy Court shall retain
exclusive jurisdiction to enforce the terms of this Amendment No. 2 and to
decide any claims or disputes that may arise or result from, or be connected
with, this Amendment No. 2, any breach or default hereunder, or the transactions
contemplated herein, and (b) any and all claims, causes of action, suits and
proceedings relating to the foregoing shall be filed and maintained only in the
U.S. Bankruptcy Court, and the parties hereby consent and submit to the
jurisdiction of the U.S. Bankruptcy Court.
11. Counterparts. This Amendment No. 2 may be executed in any number of
counterparts, each of which shall be deemed to be an original instrument, but
all together shall constitute one agreement.
6
12. Headings. The headings of the sections of this Amendment No. 2 have
been inserted for convenience of reference only and shall not be deemed to be a
part of this Amendment No. 2 or the Agreement.
[signatures appear on the following page]
7
IN WITNESS WHEREOF, the parties hereto have duly executed this Amendment
No. 2 as of the date so indicated in the preamble hereof.
GLOBAL CROSSING LTD. (in
provisional
liquidation)
By: /s/ Xxxx X. XxXxxxx
-----------------------------
Name: Xxxx X. XxXxxxx
Title: General Counsel
GLOBAL CROSSING HOLDINGS LTD. (in
provisional liquidation)
By: /s/ Xxxx X. XxXxxxx
-----------------------------
Name: Xxxx X. XxXxxxx
Title: Attorney-in-Fact
SINGAPORE TECHNOLOGIES TELEMEDIA
PTE LTD
By: _____________________________
Name:
Title:
S-1
IN WITNESS WHEREOF, the parties hereto have duly executed this Amendment
No. 2 as of the date so indicated in the preamble hereof.
GLOBAL CROSSING LTD. (in
provisional liquidation)
By: _____________________________
Name:
Title:
GLOBAL CROSSING HOLDINGS LTD. (in
provisional liquidation)
By: _____________________________
Name:
Title:
SINGAPORE TECHNOLOGIES TELEMEDIA
PTE LTD
By: /s/ XXX XXXXX KIAT
-----------------------------
Name: XXX XXXXX KIAT
Title: PRESIDENT & CEO
S-1
Exhibit A
[Form of Confirmation Letter]
A-1
FORM OF CONFIRMATION LETTER
May [___], 0000
Xxxxxxxxx Technologies Telemedia Pte Ltd
00 Xxxxxxx Xxxx
#00-00/00, XxxxXxx Xxxxxx
Xxxxxxxxx 000000
Telecopy: + 00-0000-0000
Attention: Chief Financial Officer
Ladies and Gentlemen:
Reference is made to the Purchase Agreement, dated as of August 9, 2002,
by and among Global Crossing Ltd., a company organized under the Laws of Bermuda
(the "Company"), Global Crossing Holdings Ltd., a company organized under the
Laws of Bermuda ("GX Holdings"), the Joint Provisional Liquidators of the
Company and GX Holdings, Singapore Technologies Telemedia Pte Ltd, a company
organized under the Laws of Singapore ("ST Telemedia"), and Xxxxxxxxx
Telecommunications Limited, a company organized under the Laws of Hong Kong, as
amended by the Amendment to Purchase Agreement, dated as of December 20, 2002,
and Amendment No. 2 to Purchase Agreement, dated as of May 13, 2003 (as amended,
the "Agreement"). Capitalized terms used and not defined herein are used as
defined in the Agreement.
This letter shall confirm the following:
1. As of the date hereof, to the knowledge of ST Telemedia, neither
the Company nor GX Holdings has breached any representation, warranty, covenant
or agreement contained in the Agreement, provided, however, the foregoing shall
not affect or otherwise limit the ability of ST Telemedia to rely on or refer to
(i) any such breach by the Company or GX Holdings that existed on or prior to
the date hereof which is discovered after the date hereof for purposes of
determining whether a condition to Closing set forth in Article VI of the
Agreement has been satisfied or waived and (ii) any such breach arising after
the date hereof for purposes of determining whether a condition to Closing set
forth in Article VI of the Agreement has been satisfied or waived.
2. As of the date hereof, to the knowledge of ST Telemedia, no
Material Adverse Effect has occurred under the Agreement, provided, however, the
foregoing shall not affect or otherwise limit the ability of the ST Telemedia to
rely on or refer to (i) a Material Adverse Effect that existed on or prior to
the date hereof which is discovered after the date hereof for purposes of
determining whether a condition to Closing set forth in Article VI of the
Agreement has been satisfied or waived and (ii) any such Material Adverse Effect
arising after
the date hereof for purposes of determining whether a condition to Closing set
forth in Article VI of the Agreement has been satisfied or waived.
3. As of the date hereof, to the knowledge of the Company and GX
Holdings, ST Telemedia has not breached of any representation, warranty,
covenant or agreement contained in the Agreement, provided, however, the
foregoing shall not affect or otherwise limit the ability of the Company or GX
Holdings to rely on or refer to (i) any such breach by ST Telemedia that existed
on or prior to the date hereof which is discovered after the date hereof for
purposes of determining whether a condition to Closing set forth in Article VI
of the Agreement has been satisfied or waived and (ii) any such breach arising
after the date hereof for purposes of determining whether a condition to Closing
set forth in Article VI of the Agreement has been satisfied or waived.
4. The provisions of Section 4.15(a) of the Agreement shall no
longer be deemed to be applicable.
5. ST Telemedia hereby waives the Company's compliance with Section
6.2(d) of the Agreement.
6. With respect to Section 4.10 of the Agreement: (a) ST Telemedia
hereby waives the Company's compliance as regards the Commitments listed at 3,
4, 5, 6, 9 and 10 of Exhibit E of the Agreement; (b) ST Telemedia hereby agrees
that the Company's obligation as regards the Commitments listed at 1, 2 and 7 of
Exhibit E of the Agreement shall be to use its commercially reasonable efforts
to amend the Non-Compete Covenants contained therein such that such Non-Compete
Covenants do not apply to Affiliates of ST Telemedia (other than ST Telemedia
and its subsidiaries); and (c) ST Telemedia does not waive the Company's
compliance as regards the Commitment listed at 8 of Exhibit E of the Agreement.
7. ST Telemedia hereby waives the Company's compliance with Section
6.2(e) of the Agreement; provided that the sum of the Other Exit Costs reflected
in a certificate of the Chief Financial Officer of the Company as of the date
hereof, as well as any Other Exit Costs that arise between the date hereof and
the Closing Date (such Other Exit Costs to be determined in accordance with the
procedures set forth in Section 8.14 of the Agreement), shall not exceed the
amount specified in Section 6.2(e) of the Agreement.
8. This letter contains the entire agreement among the parties with
respect to the subject matter hereof and supersedes all prior arrangements or
understandings with respect hereto. This letter may be signed in one or more
counterparts, each of which shall be deemed an original. This letter shall be
governed by and construed, interpreted and enforced first in accordance with and
governed by the Bankruptcy Code and the applicable case law under the Bankruptcy
Code and, to the extent that the Bankruptcy Code and the applicable case law
under the Bankruptcy Code do not address the matter at hand, then, in accordance
with and governed by the internal Laws of the State of New York, without giving
effect to the principles of conflicts of law thereof.
[signatures appear on the following page]
2
If the foregoing correctly sets forth our understanding, please sign in
the space indicated below, whereupon this letter shall become a binding
agreement. We look forward to working with ST Telemedia as we work towards
closing.
Very truly yours,
GLOBAL CROSSING LTD.
(in provisional liquidation)
By:
---------------------------------
Name:
Title:
GLOBAL CROSSING HOLDINGS LTD.
(in provisional liquidation)
By:
---------------------------------
Name:
Title:
ACKNOWLEDGED AND AGREED:
SINGAPORE TECHNOLOGIES TELEMEDIA PTE LTD
By:
------------------------------------
Name:
Title:
cc: Xxxxxx & Xxxxxxx
00 Xxxxxxx Xxxxx
#00-00 XXX Xxxxx 0
Xxxxxxxxx 000000
Telecopy: x00-0000-0000
Attention: Xxxxxxx X. Xxxxxxxx
S-1
[LOGO OF KPMG]
THE JOINT PROVISIONAL LIQUIDATORS
X/X XXXX
XXXXX XXXXX
0 XXX-XX-XXXXX XXXX
XXXXXXXX
XXXXXXX
13 MAY 2003
Global Crossing Ltd. (in provisional liquidation)
Global Crossing Holdings Ltd. (in provisional liquidation)
Singapore Technologies Telemedia Pte Ltd
Dear Sirs
GLOBAL CROSSING LTD. ("THE COMPANY") AND CERTAIN OF ITS BERMUDIAN SUBSIDIARIES
(ALL IN PROVISIONAL LIQUIDATION)("THE BERMUDIAN DEBTORS")
PURCHASE AGREEMENT DATED 9 AUGUST 2002 AMONG THE COMPANY, GLOBAL CROSSING
HOLDINGS LTD. ("GX HOLDINGS"), THE JOINT PROVISIONAL LIQUIDATORS OF THE
BERMUDIAN DEBTORS (THE "JPLS"), SINGAPORE TECHNOLOGIES TELEMEDIA PTE LTD AND
XXXXXXXXX TELECOMMUNICATIONS LIMITED, AS AMENDED BY THE AMENDMENT TO PURCHASE
AGREEMENT DATED AS OF 20 DECEMBER 2002 (AS AMENDED, "THE AGREEMENT")
AMENDMENT NO.2 TO THE AGREEMENT DATED 13 MAY 2003 ("AMENDMENT NO.2")
We refer to the Agreement and to Amendment No.2.
We note that, pursuant to Sections 5.8 and 8.6 of the Agreement, the JPLs'
consent is required to any amendments thereto.
Further, in accordance with the terms of the Orders of the Supreme Court of
Bermuda pursuant to which the JPLs were appointed ("xxx XX Orders"), the JPLs
have power, amongst other things:
.. To oversee the continuation of the businesses of the Bermudian Debtors
under the control of the Bermudian Debtors' Boards of Directors and the
US and Bermuda Courts, and
.. To be consulted by the Bermudian Debtors prior to any disposition of
property.
We confirm that we have been consulted in connection with the entry by the
Company and GX Holdings into Amendment No.2. We expressly consent to the entry
by the Company and GX Holdings into Amendment No.2 and to the implementation of
Amendment No.2 by the Company and GX Holdings.
Please note that the Directors of the Company and GX Holdings are not acting as
our agents and we have given the Directors no authority to so act. Instead, in
causing the Company and GX Holdings to enter into Amendment No.2, the Directors
are acting in accordance with their authority under the Memorandum of
Association and Bye-Laws of the Company and GX Holdings as preserved by the
Supreme Court of Bermuda under Paragraph 4(b) of the PL Orders.
Page 1
[LOGO OF KPMG]
The provisions of Article V of the Agreement, in so far as they are relevant to
the terms of this letter, shall apply mutatis mutandis. Without limiting the
generality of the foregoing, the JPLs shall have no personal liability arising
under or in connection with this letter or Amendment No. 2.
/s/ Xxxx Xxxxxxxx
------------------------------------
Xxxx Xxxxxxxx
For and on behalf of the Joint Provisional Liquidators
Page 2
EXHIBIT B
THE XXXXXXXXX LETTER
VIA TELECOPY AND ELECTRONIC MAIL
April 30, 2003
Global Crossing Ltd. Joint Provisional Liquidators
Global Crossing Holdings Ltd. c/o KPMG
c/o Global Crossing Ltd. 0 Xxxxxxxxx Xxxxxx
Xxxxx Xxxxxxx Xxxxx Xxxxxx XX0X 0 XX
Xxxxxxx, Xxx Xxxxxx 000000 Xxxxxx Xxxxxxx
U.S.A. Telecopy: + 000-000-000-0000
Telecopy: + 0-000-000-0000 Attention: Xxxx Xxxxxxxx
Attention: Xxxx XxXxxxx
and
Singapore Technologies Telemedia Pte Ltd.
000 Xxxx Xxxxxx 00 Xxxxxxx Xxxx
Xxxxxxx Xxxx, XX 00000 #00-00/00, XxxxXxx Xxxxxx
X.X.X. Xxxxxxxxx 000000
Telecopy: + 0-000-000-0000 Telecopy: + 00-0000-0000
Attention: Xxxx XxXxxxx Attention: Chief Financial Officer
Re: Purchase Agreement, dated as of August 9, 2002, by and among Global
Crossing Ltd. (the "Company"), Global Crossing Holdings Ltd.("GC
Holdings"), the Joint Provisional Liquidators, Singapore Technologies
Telemedia Pte Ltd ("ST Telemedia") and Xxxxxxxxx Telecommunications
Limited ("Xxxxxxxxx"), as amended by the Amendment to Purchase Agreement
dated as of December 20, 2002 (as amended, the "Purchase Agreement").
Dear Sirs/Madams:
Over the last year, we, together with our respective teams, have put
forth substantial time, effort and resources in working towards closing the
transactions under the Purchase Agreement. We also recognize the tremendous
effort which you and your team have similarly devoted towards this transaction.
Nevertheless, pursuant to Section 7.1(b) of the Purchase Agreement,
Xxxxxxxxx is hereby terminating the Purchase Agreement, with respect solely to
Xxxxxxxxx'x own rights and obligations thereunder and not those of ST Telemedia.
The foregoing termination shall only become effective if we and ST Telemedia
receive by Noon, New York City time on April 30, 2003 the Acknowledgement and
Mutual Release attached hereto duly executed by the Company and GC Holdings.
Except as set forth in the foregoing Acknowledgement and Mutual Release, the
provisions identified in the last proviso of Section 7.2 of the Purchase
Agreement shall survive termination of the Purchase Agreement.
Very truly yours,
XXXXXXXXX TELECOMMUNICATIONS LIMITED
By: /s/ XXXXX XXXX
----------------------------------
Name: XXXXX XXXX
Title: DIRECTOR
cc:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X.X.
Telecopy: + 0-000-000-0000
Attention: Xxxxxxx X. Xxxxxx
Xxxxxx & Xxxxxxx
00 Xxxxxxx Xxxxx
#00-00 XXX Xxxxx 0
Xxxxxxxxx 000000
Telecopy: + 00-0000-0000
Attention: Xxxxxxx X. Xxxxxxxx
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
00/X Xxxx Xxxx Xxxx Xxxxxxxx
0X Xxxxxx Xxxx
Xxxx Xxxx
Telecopy: + 000-0000-0000
Attention: Xxxx X. Xxxxx
EXHIBIT C
THE ST TELEMEDIA LETTER
VIA TELECOPY AND ELECTRONIC MAIL
April 30, 2003
Global Crossing Ltd. Joint Provisional Liquidators
Global Crossing Holdings Ltd. c/o KPMG
c/o Global Crossing Ltd. 0 Xxxxxxxxx Xxxxxx
Xxxxx Xxxxxxx Xxxxx Xxxxxx XX0X 0 XX
Xxxxxxx, Xxx Xxxxxx 000000 Xxxxxx Xxxxxxx
U.S.A. Telecopy: + 000-000-000-0000
Telecopy: + 0-000-000-0000 Attention: Xxxx Xxxxxxxx
Attention: Xxxx XxXxxxx
and
Xxxxxxxxx Telecommunications Limited
000 Xxxx Xxxxxx 00xx Xxxxx, Xxxxxxxxx Xxxxx
Xxxxxxx Xxxx, XX 00000 00 Xxxxxxxx Xxxx, Xxxxxxx
X.X.X. Xxxx Xxxx
Telecopy: + 0-000-000-0000 Telecopy: + 852-2128-1778
Attention: Xxxx XxXxxxx Attention: Company Secretary
Re: Purchase Agreement, dated as of August 9, 2002, by and among Global
Crossing Ltd. (the "Company"), Global Crossing Holdings Ltd., the Joint
Provisional Liquidators, Singapore Technologies Telemedia Pte Ltd ("ST
Telemedia") and Xxxxxxxxx Telecommunications Limited ("Xxxxxxxxx"), as
amended by the Amendment to Purchase Agreement dated as of December 20,
2002 (as amended, the "Purchase Agreement"). Capitalized terms used
herein without definition shall have the meaning ascribed to such terms
in the Purchase Agreement.
Dear Sirs/Madams:
Reference is made to the attached termination letter from Xxxxxxxxx (the
"Termination Letter"). ST Telemedia is hereby assuming, pursuant to Section
8.3(b) of the Purchase Agreement, the rights and obligations of Xxxxxxxxx under
the Purchase Agreement (other than (i) the obligations of Xxxxxxxxx arising on
or prior to the date hereof and (ii) the rights and obligations of Xxxxxxxxx
that survive termination of the Purchase Agreement pursuant to Section 7.2
thereof, as modified by the second to last paragraph of the Acknowledgement and
Mutual Release attached to the Termination Letter); provided however, that ST
Telemedia is not assuming any liability, nor shall it have any obligation or
liability to the Company or any other Person, for any breach by Xxxxxxxxx of any
representation, warranty, covenant or agreement made by Xxxxxxxxx pursuant to
the Purchase Agreement or any other Transaction Document. The foregoing
assumption shall become effective only when the Termination Letter becomes
effective in accordance with its terms.
Very truly yours,
SINGAPORE TECHNOLOGIES TELEMEDIA
PTE LTD
By: /s/ Xxx Xxxxx Kiat
----------------------------------
Name: Xxx Xxxxx Kiat
Title: President & CEO
cc:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X.X.
Telecopy: + 0-000-000-0000
Attention: Xxxxxxx X. Xxxxxx
Lafham & Xxxxxxx
00 Xxxxxxx Xxxxx
#00-00 XXX Xxxxx 0
Xxxxxxxxx 000000
Telecopy: + 00-0000-0000
Attention: Xxxxxxx X. Xxxxxxxx
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
00/X Xxxx Xxxx Xxxx Xxxxxxxx
0X Xxxxxx Xxxx
Xxxx Xxxx
Telecopy: + 000-0000-0000
Attention: Xxxx X. Xxxxx
VIA TELECOPY AND ELECTRONIC MAIL
April 30, 2003
Global Crossing Ltd. Joint Provisional Liquidators
Global Crossing Holdings Ltd. c/o KPMG
c/o Global Crossing Ltd. 0 Xxxxxxxxx Xxxxxx
Xxxxx Xxxxxxx Xxxxx Xxxxxx XX0X 0 XX
Xxxxxxx, Xxx Xxxxxx 000000 Xxxxxx Xxxxxxx
U.S.A. Telecopy: + 000-000-000-0000
Telecopy: + 0-000-000-0000 Attention: Xxxx Xxxxxxxx
Attention: Xxxx XxXxxxx
and
Singapore Technologies Telemedia Pte Ltd.
000 Xxxx Xxxxxx 00 Xxxxxxx Xxxx
Xxxxxxx Xxxx, XX 00000 #00-00/00, XxxxXxx Xxxxxx
X.X.X. Xxxxxxxxx 000000
Telecopy: + 0-000-000-0000 Telecopy: + 00-0000-0000
Attention: Xxxx XxXxxxx Attention: Chief Financial Officer
Re: Purchase Agreement, dated as of August 9, 2002, by and among Global
Crossing Ltd. (the "Company"), Global Crossing Holdings Ltd.("GC
Holdings"), the Joint Provisional Liquidators, Singapore Technologies
Telemedia Pte Ltd ("ST Telemedia") and Xxxxxxxxx Telecommunications
Limited ("Xxxxxxxxx"), as amended by the Amendment to Purchase Agreement
dated as of December 20, 2002 (as amended, the "Purchase Agreement").
Dear Sirs/Madams:
Over the last year, we, together with our respective teams, have put
forth substantial time, effort and resources in working towards closing the
transactions under the Purchase Agreement. We also recognize the tremendous
effort which you and your team have similarly devoted towards this transaction.
Nevertheless, pursuant to Section 7.1(b) of the Purchase Agreement,
Xxxxxxxxx is hereby terminating the Purchase Agreement, with respect solely to
Xxxxxxxxx'x own rights and obligations thereunder and not those of ST Telemedia.
The foregoing termination shall only become effective if we and ST Telemedia
receive by Noon, New York City time on April 30, 2003 the Acknowledgement and
Mutual Release attached hereto duly executed by the Company and GC Holdings.
Except as set forth in the foregoing Acknowledgement and Mutual Release, the
provisions identified in the last proviso of Section 7.2 of the Purchase
Agreement shall survive termination of the Purchase Agreement.
Very truly yours,
XXXXXXXXX TELECOMMUNICATIONS LIMITED
By: /s/ XXXXX XXXX
-------------------------------------
Name: XXXXX XXXX
Title: DIRECTOR
CC:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X.X.
Telecopy: + 0-000-000-0000
Attention: Xxxxxxx X. Xxxxxx
Xxxxxx & Xxxxxxx
00 Xxxxxxx Xxxxx
#00-00 XXX Xxxxx 0
Xxxxxxxxx 000000
Telecopy: + 00-0000-0000
Attention: Xxxxxxx X. Xxxxxxxx
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
00/X Xxxx Xxxx Xxxx Xxxxxxxx
0X Xxxxxx Xxxx
Xxxx Xxxx
Telecopy: + 000-0000-0000
Attention: Xxxx X. Xxxxx
EXHIBIT D
THE GLOBAL CROSSING LETTER
VIA TELECOPY AND ELECTRONIC MAIL April 30, 2003
Xxxxxxxxx Telecommunications Limited
00xx Xxxxx, Xxxxxxxxx Xxxxx
00 Xxxxxxxx Xxxx, Xxxxxxx
Xxxx Xxxx
Singapore Technologies Telemedia Pte Ltd
00 Xxxxxxx Xxxx
#00-00/00, XxxxXxx Xxxxxx
Xxxxxxxxx 000000
Attention: Xxxxx Xxxx, Director, Xxxxxxxxx Telecommunications Limited Xxx Xxxxx
Kiat, President & CEO, Singapore Technologies Telemedia Pte Ltd
ACKNOWLEDGEMENT AND MUTUAL RELEASE relating to the Purchase Agreement,
dated as of August 9, 2002, by and among Global Crossing Ltd. (the
"Company"), Global Crossing Holdings Ltd. ("GX Holdings"), the Joint
Provisional Liquidators, Singapore Technologies Telemedia Pte Ltd ("ST
Telemedia") and Xxxxxxxxx Telecommunications Limited ("Xxxxxxxxx"), as
amended by the Amendment to Purchase Agreement dated as of December 20,
2002 (as amended, the "Purchase Agreement"). Capitalized terms not
otherwise defined in this Acknowledgement and Mutual Release have the
meanings set forth in the Purchase Agreement.
Dear Xx. Xxxx and Xx. Xxx:
We have received the letters dated today, April 30, 2003, from Xxxxxxxxx
regarding its termination of its rights and obligations under the Purchase
Agreement (the "Termination Letter") and from ST Telemedia regarding its
assumption of Xxxxxxxxx'x rights and obligations under the Purchase Agreement
(the "Assumption Letter"). We hereby acknowledge that Xxxxxxxxx'x rights and
obligations under the Purchase Agreement have been terminated effective as of
the date hereof pursuant to Section 7.1(b) of the Purchase Agreement, subject to
the provisions of Section 7.2 of the Purchase Agreement regarding survival of
the provisions specified therein, as modified by the second to last paragraph
herein. We further acknowledge that, pursuant to Section 8.3(b) of the Purchase
Agreement, ST Telemedia has assumed the rights and obligations of Xxxxxxxxx
under the Purchase Agreement, subject to the exceptions and proviso set forth in
the Assumption Letter.
We acknowledge that we are not aware of any breach by Xxxxxxxxx or ST
Telemedia of the Purchase Agreement prior to the effectiveness of the
Termination Letter. We confirm our agreement that, effective on the date of
approval of the agreements of the Company and GX Holdings set forth in the
second and third paragraphs herein by the U.S. Bankruptcy Court ("Court
Approval"), and in each case subject to the continuing obligations under Section
7.2 of the Purchase Agreement, as modified by the second to last paragraph
herein (i) the
Company and GX Holdings irrevocably and unconditionally release and discharge
Xxxxxxxxx and its officers, directors, shareholders, employees, advisers,
attorneys, financial advisers and other professional advisers, agents and
representatives from any and all liabilities, obligations and claims of any
nature whatsoever arising under or relating to the Purchase Agreement and (ii)
Xxxxxxxxx irrevocably and unconditionally releases and discharges the Company
and GX Holdings and their respective officers, directors, shareholders,
employees, advisers, attorneys, financial advisers and other professional
advisers, agents and representatives from any and all liabilities, obligations
and claims of any nature whatsoever arising under or relating to the Purchase
Agreement. Please indicate your agreement to such mutual release and your
acknowledgement that you are not aware of any breach by the Company or GX
Holdings of the Purchase Agreement prior to the effectiveness of the Termination
Letter by signing in the place indicated below. We undertake to submit this
Acknowledgement and Mutual Release to the U.S. Bankruptcy Court within 14 days
after the date hereof for approval of the agreements of the Company and GX
Holdings set forth in the second and third paragraphs herein and to use all
reasonable efforts to cause such approval to be granted.
The Company and GX Holdings hereby further agree that any plan under
chapter 11 of the United States Bankruptcy Code and any schemes of arrangement
under the Laws of Bermuda, in each case that is proposed or supported by the
Company or GX Holdings, shall preserve and contain release, injunction and
exculpation protection in favor of Xxxxxxxxx and, except as expressly provided
in the Bankruptcy Plan and the Schemes of Arrangement, all of Xxxxxxxxx'x
officers, directors, shareholders, employees, advisers, attorneys, financial
advisers, accountants, other professional advisers, agents and representatives
and other protected persons or entities identical in form, scope and substance
to those presently existing under the Bankruptcy Plan, the Confirmation Order,
the Schemes of Arrangement and the Sanction Orders.
Notwithstanding the provisions of Section 7.2 of the Purchase Agreement,
effective from Court Approval, the following provisions shall apply: (i) the
provisions of Section 7.3 of the Purchase Agreement shall not survive the
termination by Xxxxxxxxx of its rights and obligations under the Purchase
Agreement (the "Xxxxxxxxx Termination"); (ii) the other parties to the Purchase
Agreement shall not be required pursuant to Section 4.11 and/or Section 8.13
thereof to obtain Xxxxxxxxx'x approval for any press release or public
disclosure that does not refer or relate to Xxxxxxxxx or any of its Affiliates
(other than references or relations that have previously been agreed to by
Xxxxxxxxx); and (iii) Xxxxxxxxx'x right to reimbursement of expenses under
Section 4.6 of the Purchase Agreement shall apply only in accordance with the
terms of Section 4.6 of the Purchase Agreement as in effect on the date hereof
and only to expenses incurred by Xxxxxxxxx prior to the Xxxxxxxxx Termination.
If the Company is required pursuant to Section 7.3 of the Purchase Agreement to
pay Liquidated Damages prior to Court Approval, the Company shall pay such
Liquidated Damages to ST Telemedia, provided that if prior to such payment
Xxxxxxxxx gives notice to the Company that it has not reached agreement with ST
Telemedia regarding such payment, the Company shall seek instructions from the
U.S. Bankruptcy Court regarding whether Xxxxxxxxx'x claimed portion of the
Liquidated Damages required to be paid should be paid to ST Telemedia or
Xxxxxxxxx.
We appreciate having had the opportunity to work with Xxxxxxxxx over the
last year and are thankful for the efforts it has devoted towards this
transaction. We look forward to working with ST Telemedia as we continue to
proceed towards closing.
Very truly yours,
GLOBAL CROSSING LTD.
(in provisional liquidation)
By: /s/ Xxxx X. XxXxxxx
-------------------------------------
Name: Xxxx X. XxXxxxx
Title: General Counsel
GLOBAL CROSSING HOLDINGS LTD.
By: /s/ Xxxx X. XxXxxxx
-------------------------------------
Name: Xxxx X. XxXxxxx
Title: Attorney-in-Fact
ACKNOWLEDGED AND AGREED:
XXXXXXXXX TELECOMMUNICATIONS LIMITED
By: /s/ XXXXX XXXX
----------------------------------
Name: XXXXX XXXX
Title: DIRECTOR
cc: Joint Provisional Liquidators
c/o KPMG
0 Xxxxxxxxx Xxxxxx
Xxxxxx XX0X 0 XX
Xxxxxx Xxxxxxx
Telecopy: + 000-000-000-0000
Attention: Xxxx Xxxxxxxx
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X.X.
Attention: Xxxxxxx X. Xxxxxx
Xxxxxx & Xxxxxxx
00 Xxxxxxx Xxxxx
#00-00 XXX Xxxxx 0
Xxxxxxxxx 000000
Telecopy: + 00-0000-0000
Attention: Xxxxxxx X. Xxxxxxxx
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
00/X Xxxx Xxxx Xxxx Xxxxxxxx
0X Xxxxxx Xxxx
Xxxx Xxxx
Telecopy: + 000-0000-0000
Attention: Xxxx X. Xxxxx
