Exhibit 2.17
AMENDMENT NO. 5 TO
PURCHASE AGREEMENT
This Amendment No. 5 (this "Amendment No. 5"), dated as of December 3,
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, the Amendment No. 2 to Purchase Agreement dated as of May 13,
2003, the Amendment No. 3 to Purchase Agreement dated as of October 13, 2003 and
the Amendment No. 4 to Purchase Agreement dated as of November 14, 2003 (as
amended, the "Agreement"). Capitalized terms used but not defined herein have
the meanings given thereto in the Agreement.
WHEREAS, the parties desire to make certain amendments to the Agreement,
which amendments may be effected pursuant to Section 8.6 of the Agreement; and
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. 5 by the parties hereto.
NOW, THEREFORE, in consideration of the premises and the mutual agreements
set forth in this Amendment No. 5 and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. Amendments. Pursuant to Section 8.6 of the Agreement, the parties agree
as follows:
(a) The definition of "Outside Date" in Section 8.1 of the Agreement
shall be amended and restated in its entirety to read as follows: ""Outside
Date" shall mean December 19, 2003."
2. 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. 5 (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. 5 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. 5
pursuant to their fiduciary duties under Bermuda Law or pursuant to any
order of the Bermuda Court, each of the Company and GX Holdings has all
right, corporate power and authority to enter into, execute and deliver
this Amendment No. 5 and to consummate the
transactions contemplated hereby. The execution and delivery by each of the
Company and GX Holdings of this Amendment No. 5 and the compliance by each
of the Company and GX Holdings with each of the provisions of this
Amendment No. 5 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. 5 has
been duly and validly executed and delivered by the Company and GX Holdings
and this Amendment No. 5 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. 5 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.
3. 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. 5
and to consummate the transactions contemplated hereby. The execution and
delivery by ST Telemedia of this Amendment No. 5 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. 5
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. 5 nor the consummation by
ST Telemedia of the transactions contemplated hereby will: (i) conflict
with, or result in a breach 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
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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.
4. Effectiveness; Cooperation. Notwithstanding anything contained herein,
this Amendment No. 5 shall not become effective until the date it is approved by
the U.S. Bankruptcy Court (such date, the "Amendment No. 5 Approval Date"). 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. 5 (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. 5) and to otherwise carry out the intent of the
parties under this Amendment No. 5.
5. 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. 5 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.
6. Termination. Each of the Company, GX Holdings and ST Telemedia may
terminate this Amendment No. 5 upon the occurrence of any of the following:
(a) The date on which this Amendment No. 5 is submitted for approval
to the U.S. Bankruptcy Court does not occur on or before December 4, 2003;
(b) The Amendment No. 5 Approval Date does not occur on or before
December 5, 2003;
provided, that, a party shall not be entitled to terminate this Amendment
No. 5 pursuant to this Section 6 if the failure of any of the foregoing items to
occur by the date set forth above is the result of any failure by such party to
comply fully with its obligations under this Amendment No. 5.
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7. Confirmation of Agreement. Except as herein expressly amended, the
Agreement shall remain in full force and effect in accordance with its terms.
8. Governing Law; Submission to Jurisdiction. This Amendment No. 5 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. 5 and to decide any
claims or disputes that may arise or result from, or be connected with, this
Amendment No. 5, 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.
9. Counterparts. This Amendment No. 5 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.
10. Headings. The headings of the sections of this Amendment No. 5 have
been inserted for convenience of reference only and shall not be deemed to be a
part of this Amendment No. 5 or the Agreement.
[signatures appear on the following page]
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Amendment No. 5 as of the date so indicated in the preamble hereof.
GLOBAL CROSSING LTD. (in provisional liquidation)
By: Xxxxxxxx Xxxxxx
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Name: Xxxxxxxx Xxxxxx
Title: Vice President
GLOBAL CROSSING HOLDINGS LTD. (in provisional
liquidation)
By: /s/ Xxxxxxxx Xxxx
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Name: Xxxxxxxx Xxxx
Title: Vice President
SINGAPORE TECHNOLOGIES TELEMEDIA PTE LTD
By: /s/ Xxx Xxxxx Kiat
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Name: Xxx Xxxxx Kiat
Title: President & CEO
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