Exhibit 10.14
Execution Copy
ASIA GLOBAL CROSSING LTD.
00000 Xxxxx Xxxxxx Xxxxxxxxx, Xxxxx 000
Xxx Xxxxxxx, XX 00000
March 5, 2003
Global Crossing Ltd. (in provisional liquidation)
Seven Xxxxxxx Xxxxx
Xxxxxxx, Xxx Xxxxxx 00000
Ladies and Gentlemen:
This letter agreement (hereinafter referred to as this "Settlement
Agreement") sets forth the mutual agreement of Asia Global Crossing Ltd. (in
provisional liquidation) ("AX") and Global Crossing Ltd. (in provisional
liquidation) ("GX") to engage in certain transactions (the "Transactions") more
specifically described herein. Each of AX and GX may hereinafter be referred to
as a "Party" and, together, as the "Parties".
1. Incorporation of Term Sheet. The terms and conditions of the
Transactions shall encompass those set forth herein (including the Schedules
hereto) and in the term sheet (including the Schedules thereto) annexed hereto
as Exhibit A and made a part hereof (the "Term Sheet"). References herein to
this Settlement Agreement shall include such Term Sheet.
2. Access; Ongoing Services.
Following execution and delivery of this Settlement Agreement by the Parties,
and provided that the other party (the "Receiving Party") is in material
compliance with its obligations hereunder, each Party (the "Providing Party")
agrees to provide or cause to be provided to the authorized employees or
representatives of the Receiving Party (the "Designated Receiving Individuals")
the information, transition services and access (collectively, the "Transition
Services") described in and in the manner and timeframes provided for under
Schedules I-A and I-B hereto (collectively, the "Schedules") and the last
paragraph of this Section 2. The Receiving Party agrees that (i) the Transition
Services shall be no broader (but, consistent with the requirements set out in
the Schedules and the last paragraph of this Section 2, may be narrower) than
the type of information, services and access (the "Pre-Settlement Services")
that the Providing Party provided or made available or caused to be provided or
made available to the Receiving Party or its subsidiaries immediately prior to
the execution and delivery of this Settlement Agreement (it being acknowledged
and agreed, however, that, in the event there is a perceived conflict between
(x) the delivery, service and/or access obligations of the Parties under the
Schedules and the last paragraph of this Section 2, on the one hand, and (y) the
course of conduct between the Parties immediately prior to the date of this
Settlement Agreement in respect of the delivery of and/or access to
Pre-Settlement Services, on the other hand, the terms of and requirements under
the Schedules and the last paragraph of this Section 2 shall prevail and
control), (ii) it will use the Transition Services solely for
legally-permissible business purposes, (iii) other than to the extent necessary
to effectuate the obligations of the Parties under the Schedules and the last
paragraph of this Section 2 (and, in each such case, only until the earlier of
(A) April 15, 2003 and (B) the date upon which (I) the transactions contemplated
by the AX Purchase Agreement (as defined below) are consummated and (II) the
rights set forth in the next succeeding parenthetical are not both secured and
then in effect), under no circumstances will it utilize the Providing Party's
software for any purpose, including, but not limited to, accessing the Providing
Party's information systems (it being acknowledged and agreed, that, following
the execution and delivery of this Settlement Agreement by the Parties hereto,
the Providing Party shall, at the Receiving Party's reasonable expense,
reasonably cooperate and assist the Receiving Party in obtaining the right to
use such software or substantially similar software during the period (if any)
between the consummation of the AX Purchase Agreement and April 15, 2003,
including, without limitation, by virtue of (i) GX or AX securing an arrangement
with or other accommodation from the
current third-party licensor or a separate license arrangement between such
licensor and the Receiving Party or the applicable affiliate thereof, and (ii)
the licensing of software owned outright by the Providing Party on terms that
reflect the Parties' mutual agreement on fair market value thereof), (iv) the
Providing Party shall not be obligated to provide the access rights described
under the Schedules to the Receiving Party after the expiration of the time
periods referred to therein (it being understood and agreed that the Providing
Party shall not, under any circumstances, be obligated to provide the Receiving
Party with access to the Providing Party's systems after April 15, 2003), (v)
the Receiving Party acknowledges and agrees that, provided that the Providing
Party is otherwise complying with its obligations set forth in this Section 2
(including, without limitation, the third and fourth sentences hereof) and the
Schedules, the Providing Party shall not be in breach of this Settlement
Agreement as a result of its inability to complete the performance of any of its
obligations under the Schedules by any target date referred to therein, (vi)
should the Transition Services be made available in an electronic format, it
will cause its Designated Receiving Individuals to refrain from accessing any
information other than that which is specifically referred to in the Schedules
and the last paragraph of this Section 2, (vii) the Providing Party shall have
the right to monitor the Receiving Party's compliance with its obligations
hereunder through the use of electronic or other reasonable means and (viii) in
the event that the Providing Party makes a reasonable determination that the
Receiving Party has failed to materially comply with its obligations under this
Section 2, it shall have the right to pursue any and all of its legal remedies,
which shall include, but not be limited to, the right to immediately terminate
without notice the Receiving Party's right and ability to access any and all of
the Transition Services. The Parties shall use commercially reasonable efforts
to complete the Transition Services no later than April 15, 2003 (it being
acknowledged and agreed by the Parties that, notwithstanding the use of such
commercially reasonable efforts, the Transition Services may not be completed by
such date). With respect to Transition Services which are not completed by April
15, 2003, the Providing Party, subject to subparagraph (iv) of the second
sentence of this Section 2, shall continue to perform and provide the Transition
Services until the earlier of (i) their completion and (ii) the date on which
the Receiving Party is either no longer cooperating with respect to the
reception of, or capable of receiving, such Transition Services, in either case
for a material period of time (it being acknowledged and agreed that (x) good
faith disagreement regarding the terms of the Transition Services shall not
constitute a lack of cooperation and (y) inability to receive a Transition
Service due to interference from a third party or waiting on a third party to
perform a service or provide an item shall not constitute incapability of
receiving the applicable Transition Service, provided, that the Receiving Party
continues to use commercially reasonable efforts to resolve such interference or
delay with respect to receipt of such service or item). In furtherance, and not
in limitation, of the foregoing sentence, from and after the date upon which the
Providing Party, pursuant to item (iv) above and under the Schedules, is no
longer obligated to provide the Receiving Party access to its systems, the
Providing Party will, notwithstanding the lapse of such access rights, (i)
reasonably cooperate with and assist the Receiving Party to ensure that the
Transition Services provided to the Receiving Party hereunder are complete,
accurate and in a format reasonably accessible by the Receiving Party, in each
case in all material respects, (ii) promptly remedy any failure by it to provide
the Transition Services (including without limitation the transition of
functions and network services related thereto) by the applicable target
delivery date and (iii) promptly cure or correct any material defects or
inaccuracies with respect to the Transition Services which are reasonably
attributable to it.
Subsequent to the completion of the Providing Party's obligations set forth in
the immediately preceding paragraph, the Providing Party shall, upon written
request of the Receiving Party and within a reasonable period of time subsequent
to the receipt of such request, destroy the information component of the
Transition Services (or, in the case of information to be destroyed by AX upon
the written request of GX pursuant to this paragraph, the equivalent of such
information component); provided, that (i) the written request referred to above
identifies in reasonable detail the information to be destroyed, (ii) the
Providing Party determines, in its reasonable discretion, that it is legally
permitted to destroy such information and (iii) the Providing Party be permitted
to retain any such information to the extent that either (A) it determines, in
its reasonable discretion, that such information consists of historical
financial information the access to which it believes in good faith may be
needed in order to fulfill its obligations under applicable law or (B) its
independent auditors reasonably determine that such information should be
retained. In the event a Providing Party is permitted, pursuant to the foregoing
sentence, to retain the information component of any of the Transition Services
following completion of the transition and delivery obligations under the
Schedules, such Providing Party shall under no circumstances use or
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otherwise apply such information component of the Transition Services to compete
with or otherwise solicit customers of the Receiving Party or its affiliates.
Further, during any intervening period between the execution and delivery of
this Settlement Agreement by the parties hereto and the execution and delivery
of each of the Definitive Agreements (defined below) by the parties thereto,
including without limitation the Transition Agreement (defined below), and
subject to the limitations provided for elsewhere herein, including, but not
limited to, the requirement that AX is in material compliance with its
obligations hereunder, GX agrees to provide to and perform for and on behalf of
AX and its subsidiaries the Interim Services (as such term is referred to in the
Term Sheet)(in each case to the same extent, in all material respects, with
respect to quality and quantity and on the same pricing terms) relating to the
operations of AX and its subsidiaries that GX provided to and performed for and
on behalf of AX and its subsidiaries immediately prior to the execution and
delivery of this Settlement Agreement by the parties hereto. The Parties
acknowledge and agree that, following April 15, 2003 and until such time as each
of the Definitive Agreements has been executed and delivered, GX will include
within the Interim Services it is otherwise obligated hereunder to provide to AX
or the applicable subsidiary of AX the functions and services which shall have
been otherwise lost or rendered unavailable to AX or such subsidiary by virtue
of the loss of access rights contemplated under item (iv) of the second sentence
of the first paragraph of this Section 2.
In addition to the items set forth on the Schedules, the Transition Services
shall include: (i) transfer of all data (held on documents and systems) and
physical assets relating to AX's systems which have been identified on the
Schedules; (ii) transition of all functions to AX currently provided by GX under
the Interim Services that AX requests in writing to GX it desires to have
transferred to it, including establishing new operating procedures for interface
on matters including, but not limited to, provisioning, troubleshooting and
fault management, quoting and inquiries on service, product and capacity
availability; and (iii) separation of all networks, including the establishment
of appropriate demarcations, NNIs and other interfaces that control each Party's
access and visibility to the other party's network. To the extent any item in
the Schedules or this paragraph requires further elaboration of the steps
required in order to accomplish the stated goal (as set forth in the Schedules
and this paragraph), the Parties shall reasonably cooperate and negotiate in
good faith to promptly develop such steps and implement the same.
3. Definitive Agreements. The Parties shall negotiate in good faith and use
commercially reasonable efforts to enter into (i) a Master Services Agreement,
(ii) a Carrier Services Agreement, (iii) an Amendment to Marine Repair and
Maintenance Services Agreement, (iv) a Transition and Separation Agreement (the
"Transition Agreement") and (v) a Capacity Purchase Agreement, in each case
documenting, based on and encompassing the terms and conditions set forth in the
Term Sheet (collectively, the "Definitive Agreements") (regardless of whether or
not the Term Sheet specifically references each of the foregoing agreements by
name or specifically designates which term belongs in which agreement).
4. Timing.
(a) In General. The Parties shall negotiate in good faith and use
commercially reasonable efforts to effectuate the Transactions in
the time and manner contemplated in this Settlement Agreement. In
addition, each Party acknowledges and agrees that, (i) other than
to the extent required under or in connection with the
performance of its obligations set forth in the first paragraph
of Section 2, the Phase I Payment Obligation (as such term is
defined in the Term Sheet) or as necessary (as determined by each
Party in good faith) in connection with the initial preparation
of the Definitive Agreements, neither Party shall be required to
disclose, exchange or otherwise transfer any assets, whether
tangible or intangible, to the other Party prior to the Final
Effective Date, and (ii) provided that the other Party satisfies
its obligations referred to in the immediately preceding sentence
and Section 3, such other Party shall not be deemed in breach of
this Settlement Agreement as a result of its inability to
negotiate and execute any Definitive Agreement by the applicable
'target date' referred to in this Settlement Agreement (it being
understood, however, that any such failure to meet a target date
shall in no event relieve or release either Party of or from,
respectively, its obligations hereunder to negotiate in good
faith and use commercially reasonable efforts to effectuate the
Transactions (including in
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respect of the execution of the Definitive Agreements), which
obligations shall continue notwithstanding any frustration of the
applicable target date).
(b) Regarding Settlement Agreement Motion. Each Party shall file a
motion with its respective U.S Bankruptcy Court seeking approval
of this Settlement Agreement by no later than March 7, 2003 (the
"Motion Filing Date"). In addition, in the event that (i) the AX
Provisional Effective Date or GX Provisional Effective Date (as
such terms are defined below), as the case may be, has not
occurred by March 31, 2003 or (ii) the AX Effective Date or GX
Effective Date (as such terms are defined below), as the case may
be, has not occurred by April 11, 2003 (March 31, 2003 or April
11, 2003, as the case may be, the "Unilateral Termination Right
Date"), GX, in the case of the AX Provisional Effective Date or
AX Effective Date, as the case may be, not occurring by such
respective date, and AX, in the case of the GX Provisional
Effective Date or GX Effective Date, as the case may be, not
occurring by such respective date, shall have the right (the
"Termination Right"), without any actions required of it other
than the delivery of written notice to the other Party, to cause
the Parties to be restored to the status quo ante as of the day
immediately preceding the date of execution of this Settlement
Agreement as though this Settlement Agreement was never executed
and the terms hereof (including without limitation under Sections
3, 4(a) and 5 and "Phase I" of the Term Sheet) never effectuated,
provided, however, that (i) such Termination Right must be
exercised within thirty (30) days of its vesting by the
distribution of written notification to the other Party within
such period, and (ii) the provisions of the following sentence of
this Section 4(b) and Sections 7 and 8 shall survive any exercise
of the foregoing Termination Right by either Party. Further, in
the event the Parties are restored to the status quo ante in
accordance with the foregoing or the following sentence or
Section 9, each Party (regardless of which Party caused such
restoration) shall have the unconditional, unilateral right
(other than with respect to (i) payment obligations under the
Definitive Agreements which were incurred but not paid prior to
the date of the restoration of the status quo ante and (ii)
performance obligations under the Definitive Agreements which
were paid for in advance under the Definitive Agreements but not
performed prior to the date of the restoration of the status quo
ante) to immediately terminate each Definitive Agreement then in
effect to which it is a Party, regardless of the terms thereof.
Notwithstanding anything stated herein to the contrary, (x) both
Parties shall use commercially reasonable efforts to secure their
respective Approval Orders (as defined below) and (y) provided
that it has satisfied its obligations set forth in sub-paragraph
(x) above, either Party shall have the right to exercise the
Termination Right in the event that the Final Effective Date (as
defined below) shall not have occurred on or before April 30,
2003 (the "Mutual Termination Right Date") (it being understood
that an exercise of the Termination Right by either Party under
the foregoing circumstance shall have the same effects and
consequences, and afford each Party the same rights, duties and
obligations, as provided under the second and third sentences of
this Section 4(b)).
As used herein, the following terms shall have the following
meanings:
(i) "Bankruptcy Court" shall mean, the United States
Bankruptcy Court for the Southern District of New York
having jurisdiction over the procedurally consolidated
cases under chapter 11 of the Bankruptcy Code of AX and
its debtor subsidiaries (as such term is defined in
Section 5 below) and GX and its debtor subsidiaries as
the case may be.
(ii) "Bankruptcy Code" shall mean title 11 of the United
States Code.
(iii) "Approval Order" shall mean an order of the Bankruptcy
Court in a form reasonably satisfactory to both Parties
approving and authorizing the execution and performance
of this Settlement Agreement by the Parties.
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(iv) "AX Provisional Effective Date" shall mean the date on
which an Approval Order is obtained by AX in its
chapter 11 case.
(v) "AX Effective Date" shall mean the date on which an
Approval Order obtained by AX in its chapter 11 case
becomes a Final Order.
(vi) "GX Provisional Effective Date" shall mean the date on
which an Approval Order is obtained by GX in its
chapter 11 case.
(vii)"GX Effective Date" shall mean the date on which an
Approval Order obtained by GX in its chapter 11 case
becomes a Final Order.
(viii)"Final Order" shall mean an order, ruling or judgment
of a court of competent jurisdiction (a) that is in
full force and effect, (b) that is not stayed, (c) as
to which the time to appeal, petition for certiorari,
or move for reargument or rehearing has expired, and no
appeal, petition for certiorari, or other proceedings
for reargument or rehearing shall then be pending, and
(d) is no longer subject to review, reversal,
modification or amendment by appeal or writ of
certiorari; provided, however, than an order will be
deemed a Final Order notwithstanding the filing of a
motion under Rule 59 or Rule 60 of the Federal Rules of
Civil Procedure, or any analogous rule under the
Federal Rules of Bankruptcy Procedure or other
applicable rules.
(ix)"Final Effective Date" shall mean the date on which the
Approval Orders obtained by AX and GX are both Final
Orders.
5. Mutual Limited Release of Claims. (a) Subject to subsections (d) and (e)
of this Section 5, as of the Final Effective Date, GX, on behalf of the GX
Entities (defined below) (i) fully and finally irrevocably, absolutely and
unconditionally releases, acquits and forever discharges AX (including the
chapter 11 estate of AX) and its subsidiaries, successors and assigns (provided
that with respect to its successors and assigns, only in their respective
capacities as such) from any and all Claims (defined below) the GX Entities may
now have, own, hold or have a right or claim to or under or ever had, owned,
held or had a right or claim to or under or may hereafter have, own, hold or
have a right or claim to or under against or in respect of AX (including the
chapter 11 estate of AX) or such subsidiaries, successors or assigns, (ii)
covenants and agrees that the GX Entities will not make or bring any claim
against or xxx AX (including the chapter 11 estate of AX) or any of its
subsidiaries, successors or assigns (provided that with respect to its
successors and assigns, only in their respective capacities as such), in
connection with or based on any Claim, and (iii) acknowledges that it is aware
that it may discover facts in addition to or different from those which it now
knows or believes to be true with respect to the Claims, but that it is its
intention to hereby fully, finally and forever release all such Claims. In
furtherance of such intention, the releases given herein shall be and shall
remain in effect as full and complete releases, notwithstanding the discovery or
existence of any such additional or different facts.
(b) Subject to subsections (d) and (e) of this Section 5, as of the Final
Effective Date, AX, on behalf of the AX Entities (defined below) (i) fully and
finally irrevocably, absolutely and unconditionally releases, acquits and
forever discharges GX (including the Chapter 11 Estate of GX) and its
subsidiaries, successors and assigns (provided that with respect to its
successors and assigns, only in their respective capacities as such), from any
and all Claims the AX Entities may now have, own, hold or have a right or claim
to or under or ever had, owned, held or had a right or claim to or under or may
hereafter have, own, hold or have a right or claim to or under against or in
respect of GX (including the Chapter 11 Estate of GX) or such subsidiaries,
successors or assigns, (ii) covenants and agrees that the AX Entities will not
make or bring any claim against or xxx GX (including the Chapter 11 estate of
GX) or any of its subsidiaries, successors or assigns (provided that with
respect to its successors and assigns, only in their respective capacities as
such), in connection with or based on any Claim, and (iii) acknowledges that it
is aware that it may discover facts in addition to or different from those which
it now knows or believes to be true with respect to the Claims, but that it is
its intention to hereby fully, finally and forever release all such Claims. In
furtherance of such intention, the releases given herein shall be and shall
remain in effect as full and complete releases, notwithstanding the discovery or
existence of any such additional or different facts.
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(c) In furtherance, but not in limitation of Sections 5(a) and 5(b) above,
as of the Final Effective Date all agreements and arrangements (including
without limitation all non-competition, exclusivity and non-solicitation
provisions contained therein of any kind or nature whatsoever) between AX and GX
or their respective subsidiaries existing or in effect as of the date of this
Settlement Agreement (other than this Settlement Agreement and the Definitive
Agreements) shall be automatically terminated and of no further force or effect.
(d) For purposes of clarifying and limiting the scope of this Section 5,
each Party acknowledges and agrees that the terms of this Section 5, and the
releases and discharges contained herein, shall in no way or manner release,
discharge, affect, apply to, limit or diminish, or constitute a covenant or
agreement not to bring any claim or suit with respect to (i) any successor or
assign of a Party who is a natural person, (ii) in the case of the AX Entities,
any Claim an AX Entity may now have, own, hold or have a right or claim to or
under or ever had, owned, held or had a right or claim to or under or may
hereafter have, own, hold or have a right or claim to or under against or in
respect of any past or current attorneys, representatives, officers, directors,
agents and employees of an AX Entity or a GX Entity, and (iii) in the case of
the GX Entities, any Claim a GX Entity may now have, own, hold or have a right
or claim to or under or ever had, owned, held or had a right or claim to or
under or may hereafter have, own, hold or have a right or claim to or under
against or in respect of any past or current attorneys, representatives,
officers, directors, agents and employees of an AX Entity or a GX Entity.
(e) This Section 5 and the releases, discharges, covenants and other
agreements contained herein shall in no way or manner release, discharge,
affect, apply to, limit or diminish (i) rights, duties, obligations and claims
arising under this Settlement Agreement or the Definitive Agreements, (ii)
Claims by a Party that the other Party or a subsidiary, successor or assign
thereof has materials, information, data or other property (tangible or
intangible) in its possession or under its control which should be returned or
otherwise restored to the claiming party and (iii) Claims against Pacific
Crossing Ltd., SCS (Bermuda) Ltd., PC Landing Corp., Pacific Crossing UK Ltd. or
PCL Japan Ltd.
(f) For purposes of this Settlement Agreement, the following terms shall
have the following meanings:
"affiliate" means (subject to Section 13(j)), with respect to the
Person specified, a Person that, directly or indirectly (through one or
more intermediaries), controls, is controlled by or is under common control
with such Person. For purposes of this Agreement, the term "control" shall
mean the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of a Person, whether
through the ownership of voting securities, by contract or otherwise.
Further, for purposes of this Agreement, under no circumstances will an
officer, director or employee of AX or GX (past or current) be deemed an
"affiliate" of AX or GX, as the case may be.
"AX Entities" means AX (including the chapter 11 estate of AX) and its
past and current (for purposes of this Section 5, "current" meaning as of
the date of this Agreement) subsidiaries and its and their respective past
and current (i) subsidiaries, (ii) successors and (iii) assigns.
"Claims" means any and all claims, demands, obligations, actions,
causes of action, debts, liabilities, costs, expenses, losses, promises,
agreements, controversies, rights and damages relating to or arising from
facts, circumstances or events existing or occurring at any time prior to
or on the date of this Settlement Agreement, in each case under any legal
theory, including without limitation under law (including bankruptcy law),
contract, tort, equity, or otherwise, and of every kind and nature
whatsoever, whether currently known or unknown, foreseen or unforeseen,
suspected or unsuspected, or asserted or unasserted.
"GX Entities" means GX (including the chapter 11 estate of GX) and its
past and current subsidiaries and its and their respective past and current
(i) subsidiaries, (ii) successors and (iii) assigns.
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"Person" means any individual, corporation, partnership (limited or
general), limited liability company, trust, association, governmental
authority or any other entity.
"subsidiary" means (subject to Section 13(j)) any and all
corporations, partnerships (limited or general), limited liability
companies, joint ventures, associations and other entities controlled by
the Person specified, directly or indirectly through one or more
intermediaries.
6. Withdrawal of Notices. On the Final Effective Date, each GX Entity and
AX Entity, as the case may be, shall automatically be deemed to have withdrawn
any default notices and payment requests previously issued to, in the case of
the GX Entities, AX or any subsidiary, successor or assign (provided that with
respect to its successors and assigns, only in their respective capacities as
such) thereof and, in the case of the AX Entities, GX or any subsidiary,
successor or assign thereof (provided that with respect to its successors and
assigns, only in their respective capacities as such), in each case through the
date of this Settlement Agreement and, in each case, including, for the
avoidance of doubt, any proof of claim filed in their respective chapter 11
cases without any further action by either Party.
7. Confidentiality. None of the Parties hereto shall, and each Party shall
cause its subsidiaries, and the directors, officers, and employees of such Party
not to, without the consent of the other Party, disclose either the existence of
this Settlement Agreement or any of its terms or substance, except to its
affiliates, and to the directors, officers, agents, representatives (including
attorneys, accountants and financial advisors), and employees of such Party and
its affiliates who are directly involved in the consideration of this matter and
are advised of its confidential nature and agree similarly to keep it
confidential, until such time as the Parties seek approval of this Settlement
Agreement in their respective chapter 11 cases. Notwithstanding the foregoing,
following either the filing of papers seeking approval of this Settlement
Agreement in either of the chapter 11 cases of AX or GX or the issuance of a
press release approved by all of the Parties with respect to the Transactions,
the foregoing confidentiality obligations shall be inoperative only with respect
to the information contained in such papers or press release, as applicable. The
obligations of the Parties pursuant to this Section 7 and the obligations of the
Parties pursuant to any existing confidentiality agreement between the Parties
are independent and separate obligations, and this Section 7 is not intended to
modify or supersede the obligations of the Parties under any such agreement.
Notwithstanding the foregoing, the Parties shall be permitted to disclose the
provisions of this Settlement Agreement to (i) the statutory creditors
committees in their respective chapter 11 cases, (ii) the Investors (as defined
below), (iii) the JPLs (as defined below), and (iv) in the case of GX, the
representatives of its prepetition bank lenders, in each case together with
their directors, officers, agents, representatives (including attorneys,
accountants and financial advisors) and employees who are directly involved in
the consideration of this matter and are advised of its confidential nature and
agree to similarly keep it confidential.
8. Expenses. The Parties will pay their respective expenses (including fees
and expenses of legal counsel) in connection with the Transactions, regardless
of whether the Transactions are consummated, except as otherwise provided in the
Term Sheet.
9. Binding Agreement. (a) Subject to (i) the approval hereof by the JPLs
and Investors, (ii) the occurrence of the Final Effective Date, and (iii) the
execution of the Investor Letter Agreement (defined below) in accordance with
the terms set forth in the next succeeding paragraph, it is understood and
agreed by the Parties hereto that this Settlement Agreement constitutes the
legally binding and fully enforceable agreement of the GX Entities and the AX
Entities as to the matters set forth herein. In the event that (i) the
Bankruptcy Court does not approve this Settlement Agreement in accordance with
the terms of Section 4(b) on or before the Mutual Termination Right Date, (ii)
any JPL or Investor does not approve this Settlement Agreement on or before the
Motion Filing Date or (iii) neither all of the AX Investors, on the one hand,
nor all of the GX Investors, on the other hand, execute the Investor Letter
Agreement on or before March 31, 2003, either Party may immediately thereafter
exercise the Termination Right described under the second sentence of Section
4(b) (it being understood that an exercise of the Termination Right by either
Party under the foregoing circumstance shall have the same effects and
consequences, and afford each Party the same rights, duties and obligations, as
provided under the second and third sentences of Section 4(b) above).
Notwithstanding anything contained in this Settlement Agreement to the contrary
(including without limitation this Section 9(a)), the Phase I Payment Obligation
constitutes a legally binding and fully
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enforceable agreement of the Parties, regardless of whether or not the Final
Effective Date has occurred prior to such Phase I Payment Obligation being due
in accordance with the terms of the Term Sheet.
(b) Each Party will use its commercially reasonable best efforts to cause each
of their respective Investors to execute, on or before March 31, 2003, a letter
agreement (with this Settlement Agreement attached as an exhibit thereto) (the
"Investor Letter Agreement") pursuant to which such Investor agrees that, in the
case of an AX Investor, 'AsiaNetcom' (or any other legal entity established by
such Investor to acquire the equity or other assets of AX pursuant to the terms
and conditions of the AX Purchase Agreement), and, in the case of a GX Investor,
'New Global Crossing' (or any other legal entity established by such Investor to
acquire the equity or other assets of GX pursuant to the terms and conditions of
the GX Purchase Agreement), shall be obligated to assume this Agreement and the
Definitive Agreements referred to herein, provided, however, that such
obligation is conditioned upon, in the case of the AX Investors, the
consummation of the transactions contemplated under the AX Purchase Agreement,
and in the case of the GX Investors, the consummation of the transactions
contemplated under the GX Purchase Agreement. In the event that the Investor
Letter Agreement is not executed by all of the AX Investors or the GX Investors,
as the case may be, on or before March 31, 2003, GX, in the case of the Investor
Letter Agreement not being executed by all of the AX Investors by such date, and
AX, in the case of the Investor Letter Agreement not being executed by all of
the GX Investors by such date, may immediately thereafter exercise the
Termination Right described under the second sentence of Section 4(b) above (it
being understood that an exercise of such Termination Right by either Party
under the foregoing circumstance shall have the same effects and consequences,
and afford each Party the same rights, duties and obligations, as provided under
the second and third sentences of Section 4(b) above).
As used herein, the following terms shall have the following meanings:
(i) 'JPLs' shall mean those certain Joint Provisional
Liquidators appointed by the Supreme Court of Bermuda
in each of the joint provisional liquidations of AX and
GX under the Bermuda Companies Xxx 0000.
(ii) 'Investors' shall mean, in the case of AX, Asia Netcom
Corporation Limited, party to that certain Share and
Asset Purchase Agreement, dated as of November 17,
2002, between AX and Asia Netcom Corporation Limited
(the "AX Purchase Agreement"), and in the case of GX,
Xxxxxxxxxx Telecommunications Ltd. and Singapore
Technologies Telemedia PTE Ltd., both of whom are
parties to that certain Purchase Agreement, dated as of
August 9, 2002, by and between Xxxxxxxxxx
Telecommunications Ltd. and Singapore Technologies
Telemedia PTE Ltd., the JPLs, GX and Global Crossing
Holdings Ltd. (the "GX Purchase Agreement"; and,
together with the AX Purchase Agreement, the "Purchase
Agreements").
10. Representations and Warranties.
(a) Legal Capacity to Contract. Subject to approval of this
Settlement Agreement by the Bankruptcy Court by virtue of a Final
Order and approval of the JPLs and Investors, each Party
represents that it has the requisite power, authority and legal
capacity to make, execute, enter into and deliver this Settlement
Agreement and to fully perform its duties and obligations under
this Settlement Agreement, and that neither this Settlement
Agreement nor the performance by the Parties of any duty or
obligation under this Settlement Agreement will violate any other
contract, agreement, covenant or restriction by which the Parties
are bound other than any such violation by GX that would not have
a material adverse effect on AX or AX's business following the
Final Effective Date or any such violation by AX that would not
have a material adverse effect on GX or GX's business following
the Final Effective Date.
(b) No Prior Interests. AX represents that no AX Entity has
transferred or assigned to any party not controlled by such AX
Entity any Claim being released or compromised pursuant to this
Settlement Agreement, and AX shall indemnify the
8
applicable released Person from and against any third party claim
asserting such a transfer or assignment of any such Claim. GX
represents that no GX Entity has transferred or assigned to any
party not controlled by such GX Entity any Claim being released
or compromised pursuant to this Settlement Agreement, and GX
shall indemnify the applicable released Person from and against
any third party claim asserting such a transfer or assignment of
any such Claim.
(c) No Undisclosed Inducements. Each Party represents that it has
executed and entered into this Settlement Agreement in reliance
solely upon its own independent investigation and analysis of the
facts and circumstances, and that no representations, warranties,
or promises other than those set forth in this Settlement
Agreement were made by the other Party or any employee, agent or
legal counsel of such other Party to induce said Party to execute
this Settlement Agreement.
(d) No Admission of Liability. The execution of this Settlement
Agreement by either Party does not constitute, imply or evidence
the truth of any claim, the admission of any liability, the
validity of any defense or the existence of any circumstances or
fact, which could constitute a basis for any claim, liability or
defense, other than for the purpose of enforcing the terms and
provisions of this Settlement Agreement.
11. Cooperation. Each Party agrees to cooperate, to a reasonable extent,
with the other Party for the purpose of pursuing claims against third parties in
connection with their chapter 11 cases (in each case at the reasonable expense
of the Party pursuing the applicable claim).
12. Events of Default. In the event of an Event of Default, the non
defaulting Party may, in addition to, and not in lieu of, whatever other rights
and remedies it may have under law or equity, seek specific performance against
the defaulting Party from the Bankruptcy Court, on no less than five days
written notice; provided, however, that the non-defaulting Party shall be able
to seek immediate relief from the Bankruptcy Court on less notice provided that
it gives as much written notice as the Bankruptcy Court finds to be necessary
and appropriate under such circumstances. The following events constitute an
"Event of Default" under this Settlement Agreement:
(a) any representation or warranty made by either Party under this
Settlement Agreement shall prove to have been incorrect in any
material respect when made; or
(b) either Party shall fail to perform or observe any other material
term, covenant or agreement contained in this Settlement
Agreement, including, but not limited to, (i) AX's failure to pay
any undisputed amount(s) due and owing to GX pursuant to this
Settlement Agreement as and when required to be made hereunder or
(ii) either Party's failure to perform its obligations under
Section 2 above in any material respect..
13. Miscellaneous.
(a) The terms of this Settlement Agreement may be modified only
pursuant to a signed agreement between the Parties.
(b) This Settlement Agreement may not be assigned by any Party (each,
an "Assignor") without the prior written consent of the other
Party, which consent shall not be unreasonably withheld, delayed
or conditioned, provided, however, (i) AX may assign this
Settlement Agreement, without the consent of GX, to its Investors
or any entity created in connection with the transactions
contemplated by the AX Purchase Agreement (provided, that (A)
such entity is capable of fully performing AX's obligations
hereunder and actually assumes all of such obligations and (B)
each of AX's Investors has executed the Investor Letter Agreement
in accordance with the terms and conditions hereof), and (ii) GX
may assign this Settlement Agreement, without the consent of AX,
to its Investors or any entity created in connection with the
transactions contemplated by the GX Purchase Agreement (provided,
that (A) such entity is capable of fully performing GX's
obligations hereunder and actually assumes all of such
obligations and (B) each of GX's Investors has executed the
Investor Letter Agreement in accordance with the terms and
conditions hereof).
9
Subsequent to the assignment of this Settlement Agreement by an
Assignor in accordance with the terms and conditions set forth in
the immediately preceding sentence, and other than with respect
to the obligations set forth in Section 5 hereof, such Assignor
shall not be bound by any of the obligations, liabilities or
restrictions provided for under this Settlement Agreement.
(c) Except for any existing confidentiality agreement referred to in
Section 7, this Settlement Agreement represents the entire
agreement of the Parties with respect to the subject matter
hereof and supersedes all prior and/or contemporaneous agreements
and understandings, written or oral, between the Parties with
respect to the subject matter hereof.
(d) Any of the provisions of this Settlement Agreement may be waived
by the Party entitled to the benefit thereof, but no Party shall
be deemed, by any act or omission, to have waived any of its
rights or remedies thereunder unless such waiver is in writing
and signed by the waiving Party, and then only to the extent
specifically set forth in such writing, and a waiver with
reference to one event shall be not be construed as continuing or
as a bar to or waiver of any right or remedy as to a subsequent
event.
(e) Nothing express or implied in this Settlement Agreement is
intended to confer, nor shall anything herein confer, upon any
Person other than the GX Entities and the AX Entities and their
respective successors or permitted assigns, any rights, remedies,
obligations or liabilities whatsoever.
(f) This Settlement Agreement may be executed in counterparts, each
of which shall be deemed an original and all of which together
shall constitute one and the same instrument.
(g) This Settlement Agreement shall be governed by the internal laws
of the State of New York without regard to its choice or
conflict-of-laws principles. The Parties hereby consent to the
exclusive jurisdiction of the Bankruptcy Court for final
resolution of any dispute arising out of or in connection with
this Settlement Agreement. This Settlement Agreement may be
delivered by facsimile transmission of an executed counterpart
signature page hereof, and after attachment of such transmitted
signature page to a copy of this Settlement Agreement, such copy
shall have the same effect and evidentiary value as copies
delivered with original signatures. Any Party delivering this
Settlement Agreement by facsimile transmission shall deliver to
the other Parties, as soon as practicable after such delivery, an
original executed counterpart signature page of this Settlement
Agreement.
(h) It is the intention of AX and GX that all direct or indirect
subsidiaries of each shall be deemed to be included as Parties to
this Settlement Agreement, in each case to the extent that they
are AX Entities or GX Entities, as applicable. In furtherance of
the foregoing, to the extent that:
(i) any subsidiary of AX has any Claim against a Person
which would have been released and discharged under Section 5
were it AX's Claim, then AX agrees to procure a release from any
such subsidiary, in substantially the form set out in Section 5
of this Settlement Agreement, of such Claim and AX, and/or its
successors or assigns, will indemnify and hold harmless the
Person who was the subject of such Claim from any and all claims,
costs, losses, suits, proceedings, judgments, reasonable
out-of-pocket expenses and damages arising out of such Claim; and
(ii) any subsidiary of GX has any Claim against a Person
which would have been released and discharged under Section 5
were it GX's Claim, then GX agrees to procure a release from any
subsidiary, in substantially the form set out in Section 5 of
this Settlement Agreement, of such Claim and GX, and/or its
successors or assigns, will indemnify and hold harmless the
Person who was the subject of such
10
Claim from any and all claims, costs, losses, suits, proceedings,
judgments, out-of-pocket expenses and damages arising out of such
Claim.
(i) intentionally omitted
(j) Notwithstanding anything stated herein to the contrary, for all
purposes of this Settlement Agreement, (i) AX and its
subsidiaries and affiliates shall not be deemed to be
subsidiaries or affiliates of GX, (ii) GX and its subsidiaries
and affiliates shall not be deemed to be subsidiaries or
affiliates of AX and (iii) Pacific Crossing Ltd. and its
subsidiaries and SCS (Bermuda) Ltd., PC Landing Corp., Pacific
Crossing UK Ltd. and PCL Japan Ltd. shall not be deemed to be
subsidiaries or affiliates of AX or GX.
(k) This Settlement Agreement shall inure to the benefit of the
Parties and their respective subsidiaries, affiliates, successors
and permitted assigns, including but not limited to any chapter
11 or chapter 7 trustee that may be appointed in the chapter 11
cases of AX and its debtor subsidiaries or GX and its debtor
subsidiaries and shall be binding upon any trustee, party, entity
or other fiduciary that may be appointed in connection with such
chapter 11 cases whether under chapter 7 or chapter 11 of the
Bankruptcy Code.
(l) The section and subsection headings and titles contained in this
Settlement Agreement are included for convenience only, shall be
without substantive meaning or content of any kind whatsoever,
and are not a part of the agreement between the Parties. Any
reference in this Settlement Agreement to any "Section" refers,
unless the context otherwise indicates, to a section of this
Settlement Agreement.
(m) All notices required under this Settlement Agreement shall be
required to be given to:
If to GX: c/o Global Crossing Group
0 Xxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Chief Operating Officer
with a copy to: c/o Global Crossing Group
0 Xxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Office of the General Counsel
and
Weil, Gotshal & Manages LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
11
If to AX: Asia Global Crossing Ltd.
00000 Xxxxx Xxxxxx Xxxxxxxxx, Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Office of the General Counsel
with a copy to: Xxxxxxxx Xxxxxx Xxxxxx & Xxxxxxx LLP
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxx
(n) Any amounts required to be paid by AX to GX under this Settlement
Agreement shall be in U.S. dollars and in immediately available
funds. Such funds should be wired in accordance with the
following wire instructions:
Citibank NA, 000 Xxxx Xxxxxx XX
ABA: 021 000 089
Swift: XXXXXX00
Account number: 00000000
Account name: Bank of Bermuda Limited, XXXXXXXX
Further credit to: Global Crossing Network Center Ltd., in provisional
liquidation
Account number: 1800 4749
(o) Each of the Parties shall, at any time and from time to time
after the date hereof, fairly and in good faith, do, execute,
acknowledge and deliver, or cause to be done, executed,
acknowledged and delivered, all such further acts, deeds,
assignments, transfers, conveyances, powers of attorney,
receipts, acknowledgements, acceptances, agreements, and
assurances as may be reasonably required to procure for each of
the Parties and their respective successors and assigns, the
consideration to be delivered to them as provided for herein or
otherwise to carry out the intent and purposes of this Settlement
Agreement or to consummate any of the transactions contemplated
hereby.
[signature pages follow on next page]
12
If you are in agreement with the terms of this Settlement Agreement, please
execute one copy in the space provided below and return it to the undersigned.
Very truly yours,
ASIA GLOBAL CROSSING LTD. (in provisional
liquidation)
By s/ Xxxx Xxxxxxx
--------------------------------------
Name: Xxxx Xxxxxxx
Title: SVP & CIO
Accepted and agreed
as of the date hereof:
GLOBAL CROSSING LTD. (in provisional liquidation)
By s/ Xxxxxxxx Xxxxxx
---------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Vice President
13
EXHIBIT A
Purpose
1. The data to be delivered by GX to ANC under the Settlement Agreement
will not be able to be delivered in its entirety on April 1 due to no
fault of either party. Specifically this is the ANC data from the SAP,
Alcatel NMS, Clarify and Metasolv systems.
2. The expected timing of these four data deliverables are:
. Clarify and Metasolv - April 15,
. SAP - mid May,
. Alcatel NMS - on separation and transition of the Layer 2
Alcatel Network
3. In recognition of this delay GX and ANC intend to amend the terms and
conditions of the Settlement Agreement and Term Sheet executed 5 March
as follows.
Amendments to the Settlement Agreement and Term Sheet:
1. On April 1, 2003 (or as soon as the data is ready for transfer) a
conference call will take place between ANC and GX with legal and
business member participation where:
a. GX will confirm that all of the ANC data (except SAP,
Alcatel NMS, Clarify and Metasolv) and documents and
hardware in Schedule IA are ready to be transferred or have
already been provided to ANC.
b. ANC will confirm that it is ready to release $2.0M cash
c. ANC and GX will confirm that the GMS contract has been
signed and signature pages exchanged
d. GX will release the data to ANC by way of a secure access
FTP site or similar
e. GX will release the hardware and documents from the GNOC to
ANC's designated shippers [Note: there is a possibility that
the release of these documents and hardware will need to
await Layer 1 network separation and transition in mid-April
as the equipment and data is being utilized. If that is the
case then these deliverables will be released by GX as soon
as is practically possible and the failure to provide the
documents and/or hardware on 1 April will not impact this
first payment and provision of the remaining data
contemplated by this point 1.]
f. ANC will wire the $2.0M cash to GX
2. On or about April 15, 2003 a conference call will take place between
ANC and GX with legal and business member participation where:
a. GX will confirm that Clarify and Metasolv data is ready to
be transferred
b. If it has not already been provided GX will confirm that the
GNOC held documents and hardware in Schedule IA are ready to
be released
c. ANC will confirm that it is ready to release $0.3M cash
d. GX will release the data to ANC by way of a secure access
FTP site or similar
e. If not already provided GX will release the hardware and
documents from the GNOC to ANC's designated shippers
f. ANC will wire the $0.3M cash to GX
3. Based on the agreed project plan for the extract of data from the SAP
system GX will deliver the SAP data early May with the following
understanding:
a. ANC will meet its task commitments per the project plan
b. GX will meet its task commitments per the project plan
c. GX will provide the SAP data by way of the extract process
specified by ANC
d. On receipt of that data ANC will wire $0.2M cash to GX
e. ANC will, within 4 days of receipt, confirm that the data is
Accepted or requires specific remedy. Failure to advise GX
of any default in the data within this 4-day period will be
deemed to be acceptance.
f. The data acceptance standard to be utilized by GX and ANC in
determining acceptance of the provided SAP data will be as
follows:
i. During the data definition stage, GX and ANC will
mutually agree on the exact record layout and
field sizes for each record. Sample files will be
transmitted to ANC to be reviewed within 3 days.
Upon mutual agreement, GX will proceed to extract
the data and deliver on the required date.
ii. ANC will assess the data and accept it providing
the following tests are met:
. All fields are populated with the
agreed-upon type of information
. Mutually-agreed upon record formats were
upheld
. Number of accounts received matches what was
sent
. Data was the most timely (the most current to
the date of extracting the data)
g. On acceptance of the data ANC will make available $0.5M of
the EAC Credit (out of the $3M EAC credit in the Term Sheet)
h. The remaining EAC Credit ($2.5M) will be available to GX
consistent with existing provisions of the Settlement
Agreement
i. Receipt of the SAP data, assuming all other data (except the
Alcatel NMS) has been received, will meet the requirement
for substantial completion of GX's obligations as regards
data provision
4. The Alcatel NMS data will be delivered once the Layer 2 separation
occurs (targeted timing to be determined in the Technical
Transition/Separation Plan). Failure to deliver this data until this
occurs will not be considered a failure of GX to achieve substantial
completion of its data delivery obligations.
5. The $1M payment tied to the Definitive Agreements described in the
Term Sheet phase 2 will be honored as described in the Settlement and
has been clarified to:
a. be targeted for April 15 as the completion date for the
Definitive Agreements. To achieve this ANC committed to
provide the 1st draft of the CPA by March 31
b. $1M payment targeted for April 15 but will actually occur on
completion of the Definitive Agreements.
[Note: ANC is not sure that the "commentary" in this point 5.
actually requires or constitutes an amendment to the Settlement
Agreement as it does not change any of the existing obligations
of the parties and is more explanatory in nature. ANC and GX
counsel should determine what is appropriate in their drafting of
the final side-letter]
6. All other terms in the Settlement stay as is
Exhibit B
Going forward each party (the "Providing Party") will (i) reasonably cooperate
with the other party (the "Requesting Party") with respect to the Financial
Reporting Accommodations (defined below) (it being acknowledged and agreed (in
furtherance, and not in limitation, of any of the other qualifications provided
for under this provision) that under no circumstances will the obligation to
"reasonably cooperate" entail the execution or delivery by the Providing Party
or any of its current or former officers, directors or employees of a
"management representation letter" or any other certification, representation or
statement regarding the Financial Reporting Accommodations), and, (ii) upon
reasonably noticed requests, (x) provide the Requesting Party with such
historical financial information and documents relating to the Providing Party
and its controlled (and, with respect to Pacific Crossing Ltd. and its
subsidiaries, uncontrolled) subsidiaries that are maintained by the Providing
Party in its existing data and records, (y) provide to the Requesting Party
reasonable access to the Providing Party's personnel and (z) make requests of
the Providing Party's current and former public accountants to provide access to
their directly relevant work papers and other similar information retained by
them in respect of the Providing Party (it being understood that (A) the
Providing Party in no way guaranties an affirmative response to such requests
and shall have no liability whatsoever in favor of the Requesting Party in the
event the applicable public accounting firm refuses such requests or accepts
such requests in a qualified or partial form and (B) to the extent the
applicable public accounting firm is willing to provide the applicable Financial
Reporting Accommodations subject to (I) an indemnification or similar
undertaking by the Providing Party or any of its affiliates in connection with
the delivery by such public accounting firm of such Financial Reporting
Accommodations or (II) any other commitment or undertaking on the part of the
Providing Party which creates contingent liability for such Providing Party in
connection with the delivery by such public accounting firm of such Financial
Reporting Accommodations, the Providing Party shall be under no obligation to
accede to such undertaking or commitment (though the Requesting Party may, in
its sole discretion, itself elect to satisfy or attempt to satisfy, pursuant to
an arrangement between the Requesting Party and such public accounting firm
which imposes no contingent liability on the Providing Party, the public
accounting firm's requirement of an indemnity or other undertaking or commitment
in connection with its delivery of the Financial Reporting Accommodations))
(such information, documents, cooperation and access, the Providing Party's
"Financial Reporting Accommodations"), in all cases solely to the extent that
the applicable Financial Reporting Accommodation is reasonably necessary for the
Requesting Party to prepare financial statements, including in connection with
the Requesting Party's preparation of audited or unaudited financial statements
for periods prior to 2003; provided, in each instance, that (i) the Providing
Party's Financial Reporting Accommodations can be provided in a manner which
does not unreasonably interfere with such party's operations or other business
affairs (including, without limitation, to the extent applicable to GX or AX,
the expeditious administration of such entity's estate or the expeditious
distribution of its assets); (ii) the Requesting Party shall fully reimburse the
Providing Party for both reasonable out-of-pocket expenses (including without
limitation reasonable professional fees) incurred, and compensate the Providing
Party for the length of time (calculated at a reasonable rate) expended by the
Providing Party's employees, in providing the Providing Party's Financial
Reporting
Accommodations; and (iii) the Providing Party shall be required to make
Financial Reporting Accommodations to the Requesting Party only to the extent
that the Providing Party continues to have adequate staff and other resources
(as such staff and other resources exist as of the date of the request)
available to do so (it being understood that if the Providing Party does not
have the adequate staff to do so it will reasonably cooperate with the
Requesting Party if the Requesting Party desires to hire or otherwise retain the
assistance of former Providing Party staff or other persons to assist the
Providing Party in satisfying the Financial Reporting Accommodations, it being
further understood that (x) under no circumstances will the Providing Party have
any liability in respect of such hirees or other individuals engaged or retained
by the Requesting Party in respect of salary, benefits, taxes or otherwise, (y)
the Requesting Party shall fully indemnify and hold harmless the Providing Party
for any liabilities incurred by the Providing Party in connection with any acts
or omissions of such hirees or other individuals engaged or retained by the
Requesting Party (in each case other than with respect to acts or omissions
which stem from any period prior to such hirees' or other individuals'
engagement or retention by the Requesting Party in connection with the Financial
Reporting Accommodations) and (z) the Providing Party may, on an individual
basis, refuse to permit such hiree or other individual engaged by the Requesting
Party access to its records or facilities if it has a reasonable basis for doing
so, e.g., such individual is also an employee of a competitor or providing such
access will compromise, impair or trigger the waiver of applicable legal
privileges or the protection of the attorney work-product doctrine); (iv) in the
event the Providing Party is AX, the Providing Party shall not be required to
make Financial Reporting Accommodations to the Requesting Party after the later
of (x) the effective date of AX's chapter 11 Plan of Reorganization and (y) the
six-month anniversary of the Provisional Effective Date; (v) in the event that
the Providing Party is Asia Netcom Corporation Limited ("ANC"), the Providing
Party not be required to make Financial Reporting Accommodations to the
Requesting Party if the Requesting Party makes a request therefor on or after
June 30, 2004; (vi) in the event that the Providing Party is GX, GX shall be
required to make Financial Reporting Accommodations to the Requesting Party
through the effective date of its Plan of Reorganization; (vii) in the event
that the Providing Party is New Global Crossing (as that term is used in GX's
Plan of Reorganization) the Providing Party shall not be required to make
Financial Reporting Accommodations to the Requesting Party if the Requesting
Party makes a request therefor on or after June 30, 2004; (vii) all Financial
Reporting Accommodations provided by the Providing Party to the Requesting Party
pursuant to this provision shall be on an "as is, where is" basis and the
Requesting Party acknowledges and agrees that no representations are being made
by the Providing Party regarding the accuracy, completeness or sufficiency of
such Financial Reporting Accommodations; (viii) the Providing Party shall be
under no obligation to provide any Financial Reporting Accommodation to the
Requesting Party if such provisioning would cause the Providing Party to violate
any applicable laws or regulations, breach any contractual or other legal
obligations in favor of a third party or forfeit, breach or otherwise
compromise, impair or trigger the waiver of any applicable legal privileges
relating to such Financial Reporting Accommodation or any applicable attorney
work-product protection relating to such Financial Reporting Accommodation; (ix)
the Providing Party shall only have to provide Financial Reporting
Accommodations to the
Receiving Party to the extent the applicable Financial Reporting Accommodation
is in the possession or control of the Providing Party at the time the request
is made; (x) in the event that the Providing Party is ANC, other than as set
forth in the proviso immediately below, the Providing Party shall not be
obligated to provide any Financial Reporting Accommodations to the Requesting
Party until the Requesting Party's transition obligations with respect to the
financial information data transfer (including without limitation in respect of
SAP) contemplated under Schedule I-A of the Settlement Agreement have been fully
satisfied; provided, however, that ANC shall not be relieved of its obligations
hereunder in the event that the reason that the Requesting Party is unable to
satisfy such transition obligations can be reasonable attributed to ANC's
failure to satisfy its related obligations that are required in order for the
Requesting Party to so satisfy such transition obligations; and (xi) the
Providing Party shall have no obligations under this provision if, at the time
of a request, the Requesting Party is in material breach of the Settlement
Agreement.
Term Sheet
between
Global Crossing Limited (GX)
and
Asia Global Crossing Limited (AX)
All defined terms used herein and not otherwise defined shall have the meanings
ascribed thereto in the Settlement Agreement.
Phase 1
.. AX pays GX $2.5M (the "Phase I Payment Obligation") upon substantial
completion (as mutually determined by the Parties in their reasonable
discretion) by GX of GX's delivery obligations under Schedule I-A which are
targeted to be completed by April 1, 2003 (the "Phase I Delivery
Obligation"); the foregoing is in consideration of GX providing Interim
Services (and reimbursement of insurance) to AX until March 31, 2003
.. The $0.5M paid to GX on November 22, 2002 is applied to the net access
amount for local loop due to GX for pending circuits orders submitted by
each party to the other through 11/15/02. Should there be any credits
remaining from this prepayment AX shall be entitled to apply them to other
circuit costs charged by GX.
.. During the transition period, AX pays GX for additional out-of-pocket costs
and expenses of transition. Such costs and expenses to be paid by AX either
to (i) GX upon submission of proof of expenses charged by third party
(subject to pre-approval of third-party cost estimates by AX) or (ii) the
applicable third party provided that in the case of (ii), AX has contracted
directly with the third party for the provision of services.
.. AX & GX agree to provide telecom services to each other until December 31,
2003 (subject to extension for GX to draw EAC Credit) on the following
terms
. prices are attached as Schedules 1 and 2 hereto and made a part hereof
. new circuits provisioned through 12/31/03 may have up to 12-month term
as nominated by the ordering party
. payment terms 30 days paid in advance for on-net and off-net services
and 90 days security deposit for off-net services (including, but not
limited to, local access charges); provided, however, that, upon
emergence by either party from bankruptcy, mutually agreed
market-based payment terms will apply to services purchased by such
party
. applies to all new orders (on-net & off-net) received on or after
November 15, 2002
.. On January 1, 2003, GX/AX begin invoicing each other for all existing
on-net and off-net services (including, but not limited to, local access
charges) at scheduled prices for on-net and off-net services and at cost
for local access charges (i.e., revenue shred no longer applies); costs
incurred by AX/GX under revenue shred model through 12/31/02 mutually
released under Settlement Agreement. Payment terms with respect to existing
on-net and off-net services (including, but not limited to, local access
charges) will be negotiated as part of the MSAs and CSAs.
.. All payments for circuits (new or existing) traversing PC-1 will be paid
directly to PCL by the parties that order the circuits
.. AX & GX mutually release all non-compete & exclusivity conditions upon
approval of Settlement Agreement by each of AX and GX's respective
bankruptcy courts, subject to AX & GX continuing to honor respective
confidentiality obligations.
.. AX contracts for EAC wet maintenance with GMS for 1 year effective March 1,
2003 ($9M p.a. plus $2.5M deferral with GMS to have right of first refusal
for the 2nd year at market price) based on terms defined and attached at
Annex B and cooperates with GMS obtaining a wet maintenance contract from
PCL. AX agrees that GX may deploy the Wave Venture for third party work in
Sumatra on an interruptible basis
.. AX to provide (i) a $3M credit (EAC Credit), available at or at any time
after the substantial completion of transition and separation as defined by
AX and GX together, and (ii) a up to $10 million CPA (EAC Discount) at a
discount of 30% to market based prices and available on or at any time
after the substantial completion of transition and separation as defined by
AX and GX together, in each case of (i) and (ii) above, for capacity
/services on EAC (subsea only) to be used on new circuits at market based
prices and to provide associated backhaul at cost; OA&M costs for IRUs on
EAC to be 4% of the market based IRU price.
.. AX to move to its own financial and billing systems on January 1, 2003 and
GX will co-operate and provide AX with its data held by GX to enable AX to
operate its own financial and billing systems. Going forward each party
will provide the other with all information necessary for statutory
reporting.
.. Mutual cooperation regarding regulatory approvals
.. Good Faith negotiations of Definitive Agreements
.. All agreements and undertakings referred to in Phase 1 of this Term Sheet
constitute enforceable contractual commitments (after bankruptcy court, JPL
and Investor approvals) and are not contingent upon the execution of any of
the Definitive Agreements; notwithstanding the foregoing, assuming the
Phase I Delivery Obligation is satisfied, the Phase I Payment Obligation
constitutes an enforceable contractual commitment, regardless of whether
the Definitive Agreements are ever executed and regardless of whether or
not the Final Effective Date occurs.
.. GX agrees that, for a period of three years after approval of Phase 1
agreements, neither GX, nor any affiliate, subsidiary, successor or assign
of GX, will use, or enter into any agreement or license with any other
person or entity that would provide such person or entity the right to use
the name "Asia Global Crossing Limited"; provided, however, that nothing
contained herein shall limit in any way GX's right to use the name "Global
Crossing" and/or any similar or related names or marks in Asia or any other
part of the world.
.. AX may continue to use the name or xxxx "Asia Global Crossing Limited"
until June 30, 2003 and will thereafter be precluded from using such name
or xxxx and/or any similar or related name or xxxx; provided, that, (i) for
a period of time beginning on June 30, 2003 and ending 180 days thereafter,
AX and its affiliates, subsidiaries, successors and/or assigns agree that a
disclaimer will be inserted in any formal contracts and sales or marketing
materials using the "Asia Global Crossing Limited" name or xxxx and/or any
similar or related name or xxxx to the effect that such entities,
regardless of their formal or d/b/a name, are not affiliated with GX or any
of its affiliates, subsidiaries, successors and/or assigns , (ii) with
respect to the letterhead, business cards or signage of AX containing the
"Asia Global Crossing Limited" name or xxxx, so long as AX continues to use
commercially reasonable efforts to remove such items from the chain of
commerce, it may continue to use such items for a reasonable period of time
after June 30, 2003, but in no event shall such period extend beyond August
1, 2003, and (ii) neither AX, nor any affiliate, subsidiary, successor or
assign of AX, will use or enter into any agreement or license with any
other person or entity that would provide such person or entity the right
to use the name or xxxx "Asia Global Crossing Limited" and/or any similar
or related names or marks.
Phase 2:
.. AX pays GX $1.0M upon signature of the Definitive Agreements; $500,000 of
this amount will be applied to Interim Services, insurance and capacity
credits as described in Annex A through April 30, 2003 and $500,000 of this
payment will be in consideration of the release of Claims under Section 5
of the Settlement Agreement.
.. GX shall have the right to purchase equipment/software (if assignable) that
AX deems surplus at FMV, including, but not limited to, surplus Lucent
Frame-Relay Equipment, IP Cards and Nortel Shasta Boxes
.. AX and GX agree to provide telehouse collocation for each other's equipment
and to interconnect other carriers' services both at market based prices
.. The parties agree to target the date that is four weeks from the date of
final Bankruptcy Court approval of the Settlement Agreement as the date by
which they will have completed negotiations and executed the transition and
separation plan/agreement, such plan/agreement to target substantial
completion of transition and separation by the 60th day after the execution
of such plan/agreement (recognizing that prudent transition planning may
require some activities to continue beyond such date)
.. The parties agree to target the date that is four weeks from the date of
final Bankruptcy Court approval of the Settlement Agreement as the date by
which they will have completed negotiations and executed the Master
Services Agreement and the Carrier Services Agreement for new and existing
services
.. AX pays GX additional $1.0M at agreed milestone date to be specified in the
transition and separation plan/agreement as reflecting "substantial
completion" of transition and separation in consideration of the release of
Claims under Section 5 of the Settlement Agreement. (Should transition and
separation not be completed by this time, the parties agree to extend the
relevant arrangements under the same terms and conditions as described in
Annex A until such time as the transition and separation are completed but
in any event no later than July 31, 2003.)
ANNEX A
.. The agreed charge for Interim Services will be, through April 30, 2003,
$460K per month, plus an additional $40K payable per month deemed to be in
reimbursement of insurance premiums. Beginning in May, 2003, the agreed
charge for Interim Services will depend on AGC's actual use of such
services, but will not be more than $460K or less than $350K per month. To
the extent for any such month the actual use of Interim Services is less
than $460K, up to $110K can be used by AGC as a credit for GX on-net
capacity; once AGC has its own insurance (expected in March, 2003), up to
an additional $40K per month can be used by AGC as a credit for GX on-net
capacity, but in no event will the amount of the GX on-net capacity credit
accrued for any month be greater than $150K.
ANNEX B
Amendment to "Marine and Maintenance Services Agreement between EAC (East Asia
Crossing) and GMSL (Global Marine Systems Limited) dated 22nd July, 2002.
The following two changes are agreed:
Payment and Terms
ANNEX F
Standing Charge, TABLE A
The initial agreement is for one year ("Year 1"). After Year 1, Global
Marine will be entitled to first refusal of continuing to provide the
Marine and Maintenance Services to EAC for a further period of one year
("Year 2") subject to the Global Marine terms and conditions for any
renewal being market competitive with regard both to price and quality of
service.
The Fee for Year 1, the Invoiceable Fee will be $9.000 million, payable
according to Article 9, the terms of which remain unchanged.
If EAC elects to renew for Year 2, the same terms and conditions shall
apply and the Invoiceable Fee will be no greater than $9.000 million
payable according to Article 9, the terms of which remain unchanged.
For the avoidance of doubt, and as stated in the Agreement, this Annual
Standing Charge is inclusive of all repairs in water depths greater than
20m.
An option is available to mutually agree to extend the agreement, according
to the agreed escalation formula, for Years 3, 4 and 5.
Article 7 to be amended to include for an initial fixed term of 1 year,
commencing 1st March, 2003. All earlier claims and costs between GM and EAC
will be waived between the Parties as part of the overall GX/AGX Settlement
and Agreement.
For the whole of Year 1, a deferred amount of $2.5million, invoiceable on
the last day of the agreement, and payable according to terms of Article 9,
will apply, unless this has been offset through additional contracted
maintenance revenues secured subsequent to March 6, 2003 utilizing the
allocated EAC ships and within their footprint. Provided the applicable
revenue is in excess of $4 million for that year the offset would be set at
25% of the applicable Gross Revenue secured, which will be subject to audit
by EAC. Should the agreement be extended as a result of the exercise of the
Global Marine right of first refusal the deferred amount will be rolled
over to the end of Year 2, with the continuing offset being available, and
the invoice date being also extended. Other similar related GMSL revenues
can also be considered for offsetting against this deferred amount,
following specific case discussion with EAC, where they may exercise the
power of veto in these specific cases. Should the agreement be further
extended the deferred amount may continue to be rolled over and should the
agreement be extended to a full 5 years, the remaining deferred amount will
be forgiven.
Allocation of Vessels to the Agreement
In addition, GMSL commits to not changing any of the vessels engaged in the
execution of the contract, without prior consultation with EAC, and
providing a minimum of 30 days notice of any such change. Any such
replacement must be at least equivalent in all respects in the ability of
the platform to execute the works under this agreement.
ASIA NETCOM CORPORATION LIMITED
9/F Building A, Corporate Square
Xx. 00 Xxxxxxxxx Xxxxxx
Xxxxxxx Xxxxxxxx, Xxxxxxx 000000, P.R. China
March 28, 2003
Global Crossing Ltd.
Seven Giralda Farms
Madison, New Jersey 07940
Asia Global Crossing Ltd.
00000 Xxxxx Xxxxxx Xxxxxxxxx, Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Re: Modifications Regarding Settlement Agreement
Reference is made to (i) the Letter Agreement (together with the Term Sheet
(defined below), the "Settlement Agreement"), dated as of March 5, 2003, between
Global Crossing Ltd. ("GX") and Asia Global Crossing Ltd. ("AX"), the
predecessor in interest under the Settlement Agreement to Asia Netcom
Corporation Limited ("ANC"), (ii) the first bullet point (the "First Bullet
Point") under "Phase I" of the Term Sheet (the "Term Sheet") attached thereto as
Exhibit A and (iii) the tenth bullet point (the "Tenth Bullet Point") under
"Phase I" of the Term Sheet. Capitalized terms used herein without definition
shall have the meanings ascribed thereto in the Settlement Agreement.
This Letter Agreement (this "Letter Agreement") (i) confirms the agreement
of the Parties regarding the terms and conditions of the timing and breakdown of
the Phase I Payment Obligations described under the First Bullet Point and (ii)
clarifies and amplifies the obligations of the Parties in connection with the
last sentence of the Tenth Bullet Point. Accordingly, each of GX, AX and ANC
agrees that this Letter Agreement and the modifications to the Settlement
Agreement provided for herein are intended to assist in the implementation of
the First Bullet Point and the Tenth Bullet Point only and in no other way
affect, diminish, modify, limit or terminate the other terms of the Settlement
Agreement or GX's, AX's or ANC's rights, duties and obligations with respect
thereto. As amplified hereby, each of GX, AX and ANC ratifies and confirms the
terms and conditions of the Settlement Agreement.
In view of the foregoing, each of GX, AX and ANC agrees as follows:
1. The Term Sheet is hereby modified to insert the complete text of
Exhibit A hereto (the "Exhibit A Text") immediately underneath the
first paragraph (the "First Bullet Point First Paragraph") of the
First Bullet Point. To the extent there exists any conflict or
inconsistency between the Exhibit A Text and the First Bullet Point
First Paragraph, the terms of the Exhibit A Text shall prevail and
control.
2. The Term Sheet is hereby modified to insert the complete text of
Exhibit B hereto immediately underneath the first paragraph of the
Tenth Bullet Point.
[signature page follows]
Kindly acknowledge your agreement to the foregoing terms by executing this
Letter Agreement in the space provided below.
Very truly yours,
ASIA NETCOM CORPORATION LIMITED
By:
---------------------------
Name:
Title:
Acknowledged and Agreed
GLOBAL CROSSING LTD.
By: s/ Xxxxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Vice President
ASIA GLOBAL CROSSING LTD.
By: s/ Xxxxxxx Xxxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: General Counsel
