EXHIBIT 4.(a)(xix)
SETTLEMENT AGREEMENT AND MUTUAL RELEASE
THIS AGREEMENT is made the 10 day of October, 2001
BETWEEN:
(A) BRITISH TELECOMMUNICATIONS PLC ("BT") of BT Centre, ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇
(B) ▇▇▇▇▇ NETWORKS LIMITED ("MNL") of Wexham Springs, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇
(C) ▇▇▇▇▇.WEB LIMITED (in liquidation) ("MWL") of Wexham Springs, ▇▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Together hereinafter referred to as the "Parties"
WHEREAS:
(1) An agreement (numbered Z0012654) was entered into between BT and MNL
(signed on 1 October 1998 by BT and on 30 September 1998 by MNL),
whereby BT agreed to provide digital private circuits at a discount to
MNL ("the Pool Agreement").
(2) An agreement that was originally entered in to between BT and Gains
(Channel Islands) Limited ("Gains") on 1 October 1996, whereby BT
agreed to provide international telecommunication services ("the IPLC
agreement") was assigned to MWL from 1 April 2000.
(3) An agreement for the supply of managed billing services was entered in
to between BT and MWL (signed by BT on 24 January 2001 and by MWL on 29
January 2001) ("the Billing Agreement").
The Pool Agreement the IPLC Agreement and the Billing Agreement each as amended,
varied or supplemented are together hereinafter referred to as "the Agreements".
(4) Pursuant to an order of the Chancery Division of the English High Court
dated 27th April, 2001 Neville ▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ were
appointed as joint administrators (the "Administrators") of the
Company, with power to act either jointly or severally, to manage the
affairs, business and property of MWL pursuant to the provisions of
section 8 of the Insolvency ▇▇▇ ▇▇▇▇ for the purposes referred to in
the order.
(5) BT terminated the Billing Agreement on 23 May 2001.
(6) Following the appointment of the Administrators digital private
circuits and international telecommunication services (the "Services")
continued to be supplied by BT.
(7) On 17th August, 2001 resolutions for the winding up of MWL and the
appointment of Neville ▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ as joint
liquidators (the "Liquidators") with power to act either jointly or
severally were passed, whereupon the order appointing the
Administrators was discharged.
(8) BT issued Onebill invoices with the following ID numbers to MNL: 0020
on 18 April 2001, 0021 on 8 May 2001, 0022 on 6 June 2001, 0023 on 10
July 2001 and 0024 on 6 August 2001 (hereinafter "the Onebill
Invoices").
(9) Dispute arose between BT on the one hand and MNL and MWL on the other,
as to whether or not MNL had assigned or novated its obligations under
the Pool Agreement and in relation to the Onebill Invoices to MWL.
(10) BT commenced Claim Number HC01C03561 in the High Court of Justice,
Chancery Division ("the Claim") against MNL and MWL and claimed payment
from MNL of invoices 1130594, 11361834, 11396898, 11301557, 11393482
and 11442866 (together "the Invoices") less certain credits and a
Declaration against MNL and MWL that the Pool Contract was not novated
to MWL.
NOW IN CONSIDERATION of the mutual agreements, undertakings and releases
contained herein
IT IS HEREBY AGREED between the Parties, for and on behalf of themselves, their
respective agents, successors and assigns, that they hereby fully and finally
settle any and all liabilities arising out of or connected with the Agreements,
the Services, the Claim the Invoices, the Onebill Invoices and any other
services utilised by MWL on the following terms and conditions:
1. Forthwith, following signature by all of the Parties of this Settlement
Agreement, BT will raise and deliver credit notes in relation to the
Invoices to MNL and will issue and send an invoice to MWL for
(pound)1,100,000 plus VAT.
2. MWL will pay (pound)1,100,000 plus VAT to BT by bank transfer to BT's
bank account maintained with HSBC plc (account number XXX, sort
code XXX) ("BT's Bank Account") within 3 working days of the
signature by all of the Parties of this Settlement Agreement and
subject to receipt of the credit notes and invoices referred to in
Clause 1. MWL agrees that it will have no right to make any deduction
or set-off whatsoever from this payment.
3. BT will raise and deliver an invoice for telecommunications services to
MWL for (pound)150,000 plus VAT on each of the following dates: 15
January 2002, 15 April 2002, 15 July 2002 and 15 October 2002. Each
invoice will provide for payment on the 15th day of the following
calendar month. Within 7 working days of receipt of each invoice, MWL
agrees to provide written confirmation to MNL that it has received each
invoice from BT.
4. Subject to clause 3 above being complied with MNL will
pay(pound)150,000 plus VAT to BT by bank transfer to BT's Bank Account
on 15 February 2002, 15 May 2002, 15 August 2002 and 15 November 2002
and BT agrees to accept such payments in satisfaction and discharge of
the invoices referred to in clause 3 and agrees that in the event of
failure of MNL to make such payments, that it does not have any
recourse to MWL. MNL agrees that should any payment under this clause
not be made on the due date, then the entire remaining balance due from
MNL shall be payable by MNL within 7 days of the receipt by MWL of
invoices for the total of the remaining balance due under this clause.
In such event, MWL agrees to forward such invoices for the total of the
remaining balance due under this clause to MNL immediately by facsimile
transmission. MNL agrees that it will have no right to make any
deduction or set-off whatsoever from any payment due under this clause.
5. MNL agrees that if a liquidator or administrator is appointed to MNL,
and
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(i) one or more of the payments to be made pursuant to clause 4 is
not made in full or
(ii) the liquidator or administrator of MNL seeks to have any
amount paid by MNL to BT repaid to MNL
then BT may prove in the liquidation or any scheme or arrangement for
the full amount of the Invoices less any amounts paid under this
Settlement Agreement which have not been repaid by MNL.
6. Within 3 working days of the signature by all Parties to this
Settlement Agreement, BT will raise and deliver credit notes to MNL for
the Onebill Invoices.
7. Save insofar as is necessary to comply with the terms of this
Settlement Agreement MWL and MNL are irrevocably released from all or
any obligations under the Agreements
8. MWL will use its reasonable endeavours to assist BT in the novation of
bandwidth contracts relating to circuits supplied under the Pool
Agreement to customers by:
(i) the provision of relevant information in the possession of MWL
at the date of this Settlement Agreement, where appropriate,
and only in circumstances where MWL is not prevented from
providing such information to BT by law or other regulatory
process including without limitation pursuant to the Data
Protection ▇▇▇ ▇▇▇▇ or by duties of confidentiality and
(ii) where, appropriate and requested by customers, the execution
of novation agreements.
MNL will use its reasonable endeavours to assist MWL in this process.
9. The terms of this Settlement Agreement are in full and final settlement
and the Parties absolutely release, acquit and forever discharge each
other, their agents, successors and assigns and the Liquidators and the
Administrators from any and all liabilities, claims, demands, suits,
actions or proceedings of any nature (including but not limited to
claims for interest and costs and any claim as an administration
expense) which they now or may hereafter have howsoever arising out of
or in connection with the Agreements, the Services, the Claim the
Invoices the Onebill Invoices and any other services utilised by MWL.
10. The Parties hereby agree that BT will discontinue the Claim with no
order as to costs. The Parties hereby agree that each will bear its own
costs in relation to the Claim. BT agrees to file a Notice of
Discontinuance of the Claim with the Chancery Division of the High
Court pursuant to Part 38 of the Civil Procedure Rules and serve notice
thereof on MWL and MNL within 3 working days of the date of this
Settlement Agreement.
11. The Parties agree that they are fully estopped from, undertake to
refrain from, and waive absolutely and finally any and all rights of
making and bringing any claims, demands, suits, actions or proceedings
of any nature whatsoever against each other, their agents, successors
and assigns and the Liquidators and the Administrators in connection
with any liability, claim, demand, lien or cause of action (including
but not limited to claims for interest and costs and any claim as an
administration expense) which they now and may hereafter have arising
out of or in connection with the Agreements, the Services, the Claim
the Invoices the Onebill Invoices and any other services utilised by
MWL.
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12. Each Party shall bear its own legal costs in connection with the
preparation of this Settlement Agreement.
13. The Liquidators act as agents of MWL and shall not incur any personal
liability of any kind under, or by virtue of, this Settlement
Agreement, nor in relation to any related matter or claim, whether in
contract, tort or restitution or by reference to any other remedy or
right, in any jurisdiction or forum.
14. If any term or provision in this agreement is or becomes in whole or in
part to any extent illegal, invalid or unenforceable under any
enactment or rule of law, that shall not affect the validity or
enforceability of any other provision of this agreement and if any term
or provision is held not to be valid, but would be valid if part of the
wording were deleted or modified, that term or provision shall apply
with the necessary deletion or modification.
15. Save as expressly provided to the contrary, no person who is not a
party to this agreement has any rights under the Contract (Rights of
Third Parties) ▇▇▇ ▇▇▇▇ to rely on or enforce any term of this
Settlement Agreement, but this does not affect any right or remedy of a
third party which exists or is available apart from that Act. The
Administrators and the Liquidators shall be entitled to rely on and
enforce the terms of this agreement in their favour.
16. This Settlement Agreement may be executed in any number of
counterparts. This has the same effect as if the signatures on the
counterparts were on a single copy of the agreement.
17. Each Party hereby confirms that this Settlement Agreement sets out the
entire agreement between BT on the one hand and MNL and MWL on the
other in relation to the subject matter herein.. Each of the Parties
acknowledges that no representation of any nature has been made to that
Party or relied upon by that Party in connection with or in relation to
this settlement.
18. This Settlement Agreement shall be governed by and construed in
accordance with English law and shall be subject to the exclusive
jurisdiction of the High Court of Justice of England and Wales.
19. The Parties hereby agree that any and all information in relation to
this Settlement Agreement, including but not limited to, the existence
of this Settlement Agreement, all correspondence relating hereto and
the terms of this Settlement Agreement shall be deemed to be
confidential and shall not be disclosed to any company, body or person,
other than to the parties' respective professional advisers or as may
be required by law provided that the Liquidators shall be at liberty to
disclose them to the creditors' committee established in the
liquidation and to show aggregate figures in their liquidation
accounts, records and returns.
Signed: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Dated: October 10, 2001
---------------------------------
on behalf of BT
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Signed: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Dated: October 10, 2001
-----------------------------------
on behalf of MNL
Signed: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇ Dated: October 10, 2001
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by ▇▇▇▇▇▇▇ ▇▇▇▇ as liquidator
on behalf of ▇▇▇▇▇ Web Limited
(in liquidation) as agent and without
personal liability
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