Exhibit 10.8
EXECUTION COPY
COOPERATION
AGREEMENT
THIS COOPERATION AGREEMENT
(“Cooperation Agreement” or “Agreement”) is
made this 9th day of December, 2003, by and between Global Crossing
Limited (formerly GC Acquisition Ltd.) (“New Global
Crossing”), and the individuals signatory hereto in their
capacities as Estate Representative under the Plan (the
“Estate Representative”) and as, or on the behalf of,
the Liquidating Trustee under the Liquidating Trust Agreement (the
“Liquidating Trustee”), and not in their individual
capacities (all references to the Estate Representative herein
shall mean the Estate Representative or the Liquidating Trustee, as
the case may be).
RECITALS
WHEREAS, Global Crossing Ltd., a
Bermuda corporation (“Old Global Crossing”), and 79 of
its direct and indirect subsidiaries (the “US Debtors”)
commenced reorganization cases by filing petitions for relief under
Chapter 11 of title 11 of the United States Code, 11 U.S.C. §
101-1330 (as amended, the “Bankruptcy Code”) in the
United States Bankruptcy Court for the Southern District of New
York (the “Bankruptcy Court”);
WHEREAS, GCL and 15 of its direct
and indirect subsidiaries (the “Bermuda Debtors” and
together with the U.S. Debtors, the “Debtors”)
commenced restructuring proceedings before the Supreme Court of
Bermuda (the “Bermuda Court”);
WHEREAS, on October 28, 2002 the US
Debtors filed their Joint Plan of Reorganization under Chapter 11
of the Bankruptcy Code (as amended, modified and supplemented from
time to time, the “Plan”), which has been confirmed by
an order of the Bankruptcy Court dated December 26, 2002 (the
“Confirmation Order”);
WHEREAS, the Bermuda Debtors each
filed a Scheme of Arrangement with the Bermuda Court, which have
been sanctioned by an order of the Bermuda Court dated January 3,
2003 (the “Sanction Order”) (the “Schemes of
Arrangement”);
WHEREAS, the terms of the Schemes of
Arrangement provide for the treatment of claims against the Bermuda
Debtors and all distributions to creditors of the Bermuda Debtors
to be made in accordance with the terms of the Plan;
WHEREAS, the Plan provides for the
sale of substantially all of the Debtors’ assets, other than,
among other things, the Liquidating Trust Assets, and the transfer
of the Reorganized Subsidiary Debtors to the Investors pursuant to
the terms of the Purchase Agreement;
WHEREAS, New Global Crossing is the
parent entity of Global Crossing Holdings Limited (“New
GCHL”) and the Reorganized Subsidiary Debtors and as of the
date hereof has control of the books, records and current employees
of New GCHL and the Reorganized Subsidiary Debtors;
WHEREAS, the Plan provides for the
establishment of a liquidating trust to resolve, liquidate and
realize upon the Liquidating Trust Assets;
WHEREAS, the Plan provides for the
appointment and selection of the Estate Representative to act as
trustee of the Liquidating Trust and to undertake certain other
functions under the Plan, in furtherance of and consistent with the
purpose of the Plan, the Liquidating Trust Agreement and the
Schemes of Arrangement, with the power and authority to prosecute,
compromise and settle objections to Disputed Claims; to commence,
pursue, compromise and settle Estate Representative Claims; and to
perform such other duties as may be vested in or assumed by the
Estate Representative pursuant to the Plan, the Liquidating Trust
Agreement and the Schemes of Arrangement (the “Estate
Representative Obligations”);
WHEREAS, Section 1.3 of the
Liquidating Trust Agreement provides that New Global Crossing shall
deliver certain documents to the Estate Representative in
connection with the Estate Representative Claims;
WHEREAS, New Global Crossing has
advised that it will be unable to deliver such documents on the
Effective Date; and
WHEREAS, among other things,
execution of this Cooperation Agreement is intended to satisfy New
Global Crossing’s obligation to deliver such
documents;
NOW THEREFORE, in consideration of
the above-stated premises, the mutual covenants contained herein,
in the Plan, in the Liquidating Trust Agreement and in the Schemes
of Arrangement and for other good and valuable consideration, New
Global Crossing and the Estate Representative agree as
follows:
ARTICLE I
DEFINITIONS
1.1. Defined Terms .
Capitalized terms used in this Cooperation Agreement and not
otherwise defined herein shall have the meanings ascribed to them
in the Plan or in the Bankruptcy Code. The words
“herein,” “hereof,” “hereto,”
“hereunder,” and others of similar import refer to this
Cooperation Agreement as a whole and not to any particular article,
section, subsection, or clause contained in this Cooperation
Agreement. Wherever from the context it appears appropriate, each
term stated in either the singular or the plural shall include the
singular and the plural and pronouns stated in the masculine,
feminine or neuter gender shall include the masculine, the feminine
and the neuter.
ARTICLE II
OBLIGATIONS AND RIGHTS OF NEW
GLOBAL CROSSING
2.1. Cooperation . On and
after the Effective Date, New Global Crossing agrees to, and to
cause New GCHL and the Reorganized Subsidiary Debtors to, cooperate
with the Estate Representative in connection with the Estate
Representative’s discharge of its duties under the Plan, the
Liquidating Trust Agreement and the Schemes of Arrangement
by:
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(a)
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providing
reasonable access to such employees of New Global Crossing, New
GCHL and the Reorganized Subsidiary Debtors as the Estate
Representative
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deems reasonably necessary to
fulfill the Estate Representative Obligations. For purposes of the
foregoing, access shall include, without limitation, access by
telephone, periodic meetings, interviews, and appearance of such
employees as witnesses (by affidavits, at depositions and trials,
as necessary) and availability for preparation as a witness in any
proceedings wherever situated;
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(b)
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providing
access to and delivering to the Estate Representative any and all
documents, instruments, books and records required to be delivered
to the Liquidating Trustee on the Effective Date pursuant to the
terms of the Liquidating Trust Agreement in connection with the
Estate Representative Claims or as the Estate Representative deems
reasonably necessary to fulfill the Estate Representative
Obligations, whether held by New Global Crossing, New GCHL or a
Reorganized Subsidiary Debtor, their agents, advisors, attorneys,
accountants or any other professional hired by the Debtors, New
Global Crossing, New GCHL or a Reorganized Subsidiary Debtor (the
“Documents”) (including those maintained in electronic
format and original documents), which Documents shall include
without limitation personnel records, accounting records, customer
and vendor lists and records, management reports, minutes of
meetings of the Board of Directors of the Debtors, minutes of
meetings of the shareholders of the Debtors, e-mail records,
contracts, financial records, reports and any and all other work
product generated by the Debtors’ agents and professionals,
and any and all communications with Debtors’ agents and
professionals, whether or not covered by the attorney work product,
attorney-client, or any other privileges, and documents and other
instruments relating to payments for goods and services (i.e.
invoices, purchase orders, checks, requisitions, etc.), provided
that New Global Crossing shall not be responsible for the delivery
of such Documents that may have been lost (after undertaking
reasonable good faith efforts to find) or destroyed prior to the
Effective Date;
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(c)
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providing such
other reasonable information and access to employees upon request
as the Estate Representative deems reasonably necessary to fulfill
its responsibilities under the Plan, the Liquidating Trust
Agreement and the Schemes of Arrangement; and
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(d)
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otherwise
cooperating with the Estate Representative in fulfilling the Estate
Representative Obligations as contemplated by the Plan, the
Liquidating Trust Agreement and the Schemes of
Arrangement.
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All references in this section 2.1 (and
elsewhere in this Agreement) to cooperation and similar obligations
running in favor of the Estate Representative, shall be deemed also
to run in favor of the Estate Representative’s agents and
representatives retained by the Estate Representative to discharge
the Estate Representative Obligations (including, for example,
counsel, accountants and financial advisors).
2.1.1. The parties agree to work
constructively together to structure the access and delivery
requirements of clauses 2.1 (a) through (d) above, so as not to
materially detract from New Global Crossing’s ability to
conduct its business operations (including the operations
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New GCHL and the Reorganized
Subsidiary
