Exhibit 10.11
EXECUTION COPY
SETTLEMENT AND REJECTION AGREEMENT
SETTLEMENT AND REJECTION AGREEMENT, dated as of March 13, 2003 (this
"Agreement") among IPC ACQUISITION CORP., a Delaware corporation ("IPC
Acquisition" and, together with its direct and indirect subsidiaries, the "IPC
Entities" or "IPC"), GLOBAL CROSSING LTD., a Bermuda corporation ("GCL"), and
GLOBAL CROSSING NORTH AMERICA HOLDINGS INC., a Delaware corporation ("GCNAH"
and, together with GCL and their direct and indirect subsidiaries, each a "GC
Entity" and, collectively, the "GC Entities" or "GC"). The aforementioned
entities are sometimes referred to herein individually as a "Party" and
collectively as "Parties."
WHEREAS, IPC Acquisition and certain GC Entities and certain other
parties entered into that certain Purchase Agreement (the "Purchase Agreement"),
dated as of November 16, 2001, as amended by that certain Amendment to the
Purchase Agreement, dated as of December 20, 2001 (the "Purchase Agreement
Amendment" and, together with the Purchase Agreement, the "Amended Purchase
Agreement");
WHEREAS, certain IPC Entities, certain GC Entities and certain other
parties entered into that certain Network Services, Channel Sales and
Transitional Services Agreement (the "NCT Agreement"), dated as of December 20,
2001, as amended by that certain Amendment to the NCT Agreement, dated as of
July 3, 2002 (the NCT Amendment and, together with the NCT Agreement, the
"Amended NCT Agreement");
WHEREAS, on January 28, 2002, GCL and its affiliated debtors filed
chapter 11 cases under title 11 of the United States Code in the United States
Bankruptcy Court for the Southern District of New York ("Bankruptcy Court");
WHEREAS, on December 26, 2002, the Bankruptcy Court confirmed a joint
plan of reorganization for GCL and its affiliated debtors (the "Plan");
WHEREAS, the Plan provides for the rejection of the Purchase Agreement;
WHEREAS, IPC Acquisition has filed an objection to GCL's proposed
rejection of the Purchase Agreement and to the confirmation of the Plan (the
"Objection");
WHEREAS, pursuant to the Stipulation, Agreement and Order among IPC
Acquisition and GCL entered as an order of the Bankruptcy Court on December 5,
2002, IPC Acquisition withdrew the Objection to the extent it opposed
confirmation of the Plan, and IPC Acquisition and GCL agreed that a separate
hearing would be held on the Objection insofar as it opposed the rejection of
the Purchase Agreement; and
WHEREAS, in resolution of the Objection and certain other matters, the
Parties have agreed to enter into this Agreement and the Second Amendment (as
defined below);
NOW, THEREFORE, in consideration of the premises, and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Parties hereby agree as follows:
SECTION 1. Definitions. Capitalized terms used in this Agreement and
not otherwise defined herein shall have the meanings ascribed to them in the
Amended Purchase Agreement or the Amended NCT Agreement, as applicable.
SECTION 2. Effectiveness. Within two (2) business days following the
execution of this Agreement, GC shall submit to the Bankruptcy Court a proposed
order substantially in the form of Exhibit A attached hereto. This Agreement
shall become effective (the "Effective Time") upon the earlier of (i) the first
business day following the day this Agreement and the Second Amendment have been
authorized and approved by the order of the Bankruptcy Court (but without any
changes that would adversely affect the rights of the parties under this
Agreement or the Second Amendment) (the "Order"), or (ii) the day immediately
following the day upon which the Plan becomes effective in accordance with its
terms; provided that, if such day shall occur prior to the satisfaction of the
conditions set forth in clause (i) of this Section 2, the GC Entities shall (A)
take all actions and enter into and/or execute or cause to be executed any
instrument, agreement or document necessary to effect and implement this
Agreement and the transactions set forth herein and (B) use reasonable efforts
to obtain any necessary authorization or approval in connection with this
Agreement and the Second Amendment. Unless and until the foregoing conditions
are satisfied, this Agreement shall be null and void and of no force and effect,
shall be without prejudice to the Parties hereto and shall not be referred to by
either of the Parties for any purpose whatsoever except as to and for the
purposes of this Section 2. The authorization and approval by the Bankruptcy
Court pursuant to the Order shall constitute the granting of appropriate
authority and a direction to the Parties hereto to take all actions and enter
into and/or execute any instrument, agreement or document as may be necessary to
effect and implement the terms hereof.
SECTION 3. Escrow; Cash Payment; Letter of Credit. (a) As soon as
practicable following the Effective Time, but in any event prior to the filing
of the NY Combined Returns, (i) the Parties shall execute an escrow agreement
substantially in the form of Exhibit B attached hereto (the "Escrow Agreement")
and (ii) IPC Acquisition shall, in accordance with the terms of the Escrow
Agreement, deposit in escrow five million two hundred thousand dollars
(US$5,200,000) (the "Cash Amount") with the escrow agent designated in the
Escrow Agreement (the "Escrow Agent") in an account specified by the Escrow
Agent.
(b) Upon (i) the filing of the NY Combined Returns (as defined below)
and (ii) subject to the provisions of Section 3(c) hereof, GCL furnishing to IPC
Acquisition a properly completed UK Form CT 600 C, Group and consortium
Supplementary Pages (the "UK Form"), GCNAH shall be entitled to receive and the
Escrow Agent shall, in accordance with the terms of the Escrow Agreement,
disburse three million two hundred thousand dollars (US$3,200,000) (the "First
Payment") from the Cash Amount (together with any interest thereon) to GCNAH. In
the event that the NY Combined Returns have not been filed on or before March
17, 2003, no GC entity shall be entitled to receive the Cash Amount and the
Escrow Agent shall return such amount (together with any interest thereon) to
IPC Acquisition.
(c) The Parties acknowledge that GCL's obligation to furnish IPC
Acquisition with a properly completed UK Form pursuant to Section 3(b) hereof is
conditional upon IPC Information Systems ("IPC UK") completing its UK statutory
accounting audit and
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furnishing GCL with the 2001 audited financial statements of IPC UK by March 31,
2003. GCL agrees to provide to IPC Acquisition the UK Form within 14 days of
being furnished with such 2001 audited financial statements after the UK
statutory accounting audit is completed; provided, however, that in the event
(x) that such audit is not completed or such financial statements are not
furnished to GCL by IPC Acquisition on or before March 31, 2003 and (y) the NY
Combined Returns have been filed on or before March 17, 2003, then (i) GCNAH
shall be entitled to receive and the Escrow Agent shall, in accordance with the
terms of the Escrow Agreement, disburse the First Payment (together with any
interest thereon) to GCNAH on April 16, 2003, and (ii) following such First
Payment, GCL shall provide a properly completed UK Form within 14 days of being
furnished with the 2001 audited financial statements of IPC UK determined
pursuant to the UK statutory accounting audit referred to above. IPC Acquisition
and GCL agree to cooperate in conjunction with the preparation of materials,
exchanging of information and effectuating the realization of benefits resulting
from the UK statutory accounting audit.
(d) GCL shall arrange for a United States financial institution (or a
United States branch of a non-United States financial institution) with a senior
unsecured debt rating of at least A+ from S&P and A-1 from ▇▇▇▇▇'▇ and total
assets of at least one billion dollars (US$1,000,000,000) to issue a clean and
unconditional irrevocable evergreen standby letter of credit in the aggregate
amount of two million dollars (US$2,000,000), substantially in the form of
Exhibit C attached hereto or other form reasonably acceptable to IPC Acquisition
(the "Letter of Credit"), to IPC Acquisition as beneficiary. Subject to the
final sentence of Section 3(b) hereof, following the First Payment, GCNAH shall
be entitled to receive the balance of the Cash Amount, being two million dollars
(US$2,000,000) (the "Second Payment") from the Cash Amount and the Escrow Agent
shall, in accordance with the terms of the Escrow Agreement, disburse the Second
Payment (together with any interest thereon) to GCNAH upon the issuance of the
Letter of Credit.
(e) IPC Acquisition shall have the right to draw on the Letter of
Credit in the event that GC Pan European Crossing UK Limited ("GC Pan European")
or any of its permitted assignees shall (following notice and reasonable
opportunity to cure) have failed to make any payment of rents or any other sum
due under or pursuant to that certain underlease (the "Worship Street
Sublease"), dated October 8, 2002, between IPC UK and GC Pan European; provided,
that IPC shall be permitted to make such drawing only in an amount equal to the
amount that GC Pan European failed to pay under the Worship Street Sublease.
(f) Nothing contained in this Agreement shall be deemed to be an
amendment, modification, waiver or release to any of the provisions of the
Worship Street Sublease and the exercise by IPC of its rights hereunder shall in
no way limit or otherwise preclude IPC UK from exercising any of its rights or
remedies under or pursuant to the Worship Street Sublease or applicable law.
SECTION 4. Rejection of the Amended Purchase Agreement. The Parties
hereby agree that as of the Effective Time the Amended Purchase Agreement shall
be rejected in its entirety pursuant to section 365 of the Bankruptcy Code, and
shall have no further force or effect. From and after the Effective Time,
neither Party shall have any further claims (including any rejection damage
claims) against the other Party under the Amended Purchase Agreement and,
subject to Section 8 hereof, any claims arising under the Amended Purchase
Agreement and existing at the
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Effective Time shall forever be waived and/or released, including, without
limitation, any claim by the IPC Entities for rejection damages and any claim by
the GC Entities that such entities have the right to receive any portion of the
Purchase Price that was deferred at the Closing pursuant to Section 3.3 of the
Amended Purchase Agreement and/or that such entities have any right, title or
interest (legal or beneficial) in and to the Holdback Amount and/or the Worship
Street Holdback Amount.
SECTION 5. Tax Matters. (a) For the taxable periods ending on or
including the Closing Date, GCNAH shall cause to be filed combined tax returns
that shall include one or more GC Entities and IPC Information Systems, Inc. (as
well as other IPC Entities deemed eligible by GCNAH and IPC Acquisition for such
filing) in respect of New York State and New York City (the "NY Combined
Returns") on or prior to March 17, 2003. GCNAH hereby agrees to make available
for review to IPC Acquisition draft NY Combined Returns promptly upon execution
of this Agreement and IPC Acquisition shall deliver electronically or by
facsimile to GCNAH, in writing, any comments, suggestions or objections thereto
no later than 2:00 p.m. (New York time) on March 15, 2003. GCNAH hereby agrees
to deliver to IPC Acquisition revised draft NY Combined Returns no later than 2
p.m. (New York time) on March 16, 2003 unless otherwise agreed. IPC Acquisition
and GCNAH shall prepare and exchange details and further information to support
the filing of the NY Combined Returns. IPC Acquisition and GCNAH hereby agree to
timely cooperate and to make available any and all information, records or
personnel as the other Party may reasonably request in connection with the
preparation of the NY Combined Returns within one (1) business day of such
request. Unless IPC Acquisition shall electronically provide written approval of
the NY Combined Returns on or prior to 8:00 a.m. (New York time) ▇▇▇▇▇ ▇▇, ▇▇▇▇,
▇▇▇▇▇ shall not file such returns and in such event the GC Entities shall not be
entitled to receive payment of any portion of the Cash Amount. GCNAH hereby
agrees to deliver to IPC Acquisition by March 25, 2003 full and complete copies
of the NY Combined Returns, together with a certification that such returns were
filed on or before March 17, 2003.
(b) GCNAH shall provide and IPC Acquisition shall receive as soon as
practicable, but in any event no later than 5:00 p.m. (New York time) on March
14, 2003 (i) a true, complete and accurate schedule of the federal, state, local
and foreign jurisdictions in which tax returns have been filed with respect to
any of the IPC Entities for the taxable period ending on or including December
20, 2001 and such schedule indicates whether such returns were filed on a
consolidated, combined, unitary or separate basis and (ii) a schedule of federal
audit changes for the tax period ending on or including December 20, 2001. For
taxable periods ending on or including the Closing Date, the GC Entities hereby
agree that they shall not file amended tax returns (or permit their affiliates
to file any such amended tax returns) with any jurisdiction in which a combined,
consolidated or unitary return has been filed without the prior written consent
of IPC Acquisition (such consent not to be unreasonably withheld).
(c) (1) If a claim shall be made by any New York Taxing Authority which
solely relates to the propriety of including any IPC Entity in a NY Combined
Return (an "IPC Tax Claim"), the applicable GC Entity shall, within twenty (20)
days of GC's receipt of such IPC Tax Claim, send by overnight courier service
and by facsimile a copy of such IPC Tax Claim to IPC Acquisition; provided,
however, that failure to give such notice shall not affect the obligations of
IPC Acquisition pursuant to Section 5(d) hereof except to the extent that
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IPC Acquisition (or its affiliates) shall have been actually prejudiced or
harmed as a result of such failure. In the event that any Taxing Authority makes
an IPC Tax Claim, IPC Acquisition shall have the right to control all
proceedings and may make all decisions taken in connection with such IPC Tax
Claim (including selection of accountants and/or counsel) and, without limiting
the foregoing, may in its sole discretion pursue or forego any and all
administrative appeals, proceedings, hearings and conferences with any Taxing
Authority with respect thereto. IPC Acquisition may, in its sole discretion,
either pay any amounts with respect to the IPC Tax Claim and ▇▇▇ for a refund
where applicable law permits such refund suits or contest the IPC Tax Claim in
any permissible manner. In the event a claim is made by any New York Taxing
Authority in connection with the filed NY Combined Returns, which claim does not
solely relate to the propriety of including an IPC Entity in a NY Combined
Return (a "Joint IPC-GC Claim"), the applicable GC Entity shall, within twenty
(20) days of GC's receipt of such Joint IPC-GC Claim, send by overnight courier
service and by facsimile a copy of such Joint IPC-GC Claim to IPC Acquisition;
provided, however, that failure to give such notice shall not affect the
obligations of IPC Acquisition pursuant to Section 5(d) hereof except to the
extent that IPC Acquisition (or its affiliates) shall have been actually
prejudiced or harmed as a result of such failure. IPC and GCNAH shall jointly
participate in all proceedings and shall jointly make all decisions taken in
connection with any Joint IPC-GC Claim.
(2) The GC Entities shall (i) cooperate with IPC Acquisition in
contesting any IPC Tax Claim, (ii) make available any and all information,
records or personnel as IPC Acquisition may reasonably request which are
reasonably relevant to such IPC Tax Claim, and (iii) make employees reasonably
available to provide explanations of any material provided hereunder or to
testify at any proceedings relating to such IPC Tax Claim. GC expressly agrees
that it shall include IPC Acquisition in all discussions, negotiations and
communications (other than of a merely ministerial nature) and shall not enter
into any such discussions, negotiations, nor execute any documents with any
Taxing Authority with respect to any IPC Tax Claim without the prior written
consent of IPC Acquisition.
(3) The IPC and GC Entities shall (i) cooperate in contesting any
Joint IPC-GC Claim, (ii) make available any and all information, records or
personnel as either Party may reasonably request which are reasonably relevant
to such Joint IPC-GC Claim, and (iii) make employees reasonably available to
provide explanations of any material provided hereunder or to testify at any
proceedings relating to such Joint IPC-GC Claim. Each of the IPC Entities and
the GC Entities expressly agrees that it shall include the other Party in all
discussions, negotiations and communications (other than of a merely ministerial
nature) and shall not enter into any substantive discussions, negotiations, nor
execute any documents with any Taxing Authority with respect to any Joint IPC-GC
Claim without the prior written consent of the other Party.
(d) (1) IPC Acquisition shall be liable for (x) taxes (including
interest and penalties) for a taxable period ending on or including the Closing
Date for any NY Combined Return to the extent that the amount of such taxes
exceeds the taxes which the GC Entities originally included in such NY Combined
Return would have paid if such NY Combined Return would have included only such
GC Entities and not included either any IPC Entity or any GC Entity having
positive taxable income for NY corporate tax purposes which was not originally
included in such NY Combined Return, and (y) taxes (including interest and
penalties)
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imposed on any IPC Entity for a taxable period ending on or including the
Closing Date for which an IPC Entity was not properly included in any NY
Combined Return. GCL shall provide prompt written notice to IPC Acquisition (an
"Indemnification Notice") of any such liability of IPC Acquisition arising under
(x) and/or (y) above, and, upon receipt of any such Indemnification Notice, IPC
Acquisition shall pay such taxes directly to the applicable Taxing Authority.
IPC Acquisition, on behalf of itself and each of the IPC Entities, shall jointly
and severally indemnify GCL, GCNAH, and the other GC Entities and hold them
harmless from any and all liability for taxes, interest, and penalties for which
IPC is responsible under this Section 5(d). IPC shall reimburse GC for fifty
(50%) percent of all of GCNAH's documented reasonable out-of-pocket third party
expenses incurred following the date hereof in furtherance of the agreements
hereunder, including (i) any such incremental expenses incurred in connection
with preparing any NY Combined Return, and (ii) any such expenses incurred in
connection with any IPC Tax Claim. In the event that IPC is required to pay any
amounts pursuant to this Section 5(e), IPC shall pay such amounts to GC within
thirty (30) days following receipt of written notice of such expenses.
(2) (A) IPC Acquisition shall also be liable for any taxes,
interest, and penalties of, or allocable to, any IPC Entity for which any GC
Entity is assessed or otherwise becomes liable by reasons of Treasury Reg. ss.
1.1502-6(a) subject to a maximum of $2,156,560.85 of tax principal plus any
associated interest and penalties.
(B) If any liability for taxes (including interest and
penalties) is finally determined against GC or IPC for a liability pursuant to
Section 1081(g) of Article 27 of the New York Tax Law or Section 11-672.7 of
Subchapter 5 of Chapter 6 of Title 11 of the New York City Administrative Code
which this Agreement identifies is the liability of the other party (such other
party being the "Liable Party"), the Liable Party shall pay such amount of taxes
(including interest and penalties) directly to the applicable Taxing Authority.
(e) Any tax refunds or amounts credited against tax that are actually
realized by or with respect to an IPC Entity that relate to Pre-Closing Tax
Periods (in each case a "Tax Refund" and, collectively, the "Tax Refunds") shall
be for the account of the applicable IPC Entity. In the event that any GC Entity
receives or has received any Tax Refund or any amounts are credited to a GC
Entity against taxes which credits are actually realized with respect to an IPC
Entity for Pre-Closing Tax Periods, GC shall (to the extent not already
furnished to IPC Acquisition) within two (2) business days of the receipt by the
applicable GC Entity electronically notify IPC Acquisition of such Tax Refund
and/or credit and shall immediately pay over to IPC Acquisition such Tax Refund
and/or take any other necessary action to cause such Tax Refund to be paid over
to IPC Acquisition or such credit to be applied for the account of the
applicable IPC Entity. GC hereby acknowledges that, in addition to any Tax
Refunds received and already furnished to IPC Acquisition, it has received
payroll and federal income Tax Refunds in a total amount of US$2,156,560.85.
Upon confirmation by the Escrow Agent of receipt of the Cash Amount, GCNAH shall
promptly furnish to IPC Acquisition a bank cashier's check payable to IPC
Information Systems, Inc. in the amount of US$2,047,992.94 together with IRS tax
refund checks payable to IPC Information Systems, Inc. in the amounts of
US$108,551.19 and US$16.72.
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SECTION 6. Second Amendment to NCT Agreement. Concurrently with the
execution of this Agreement, the Parties hereby agree to enter into and execute
the Second Amendment to the NCT Agreement substantially in the form of Exhibit D
attached hereto (the "Second Amendment") and to cause their respective
subsidiaries to enter into the Second Amendment.
SECTION 7. Mutual Release. Except as otherwise set forth herein, this
Agreement shall constitute a full and complete discharge, satisfaction, and
release of any and all claims, causes of action, actions, suits, debts, dues,
sums of money, accounts, reckonings, bonds, bills, specialties, controversies,
agreements, promises, variances, trespasses, damages, judgments, extents,
executions, and demands (collectively, "Claims") whatsoever that the GC
Entities, on the one hand, and the IPC Entities, on the other hand, have had or
have against the other and/or against the other's employees, agents, officers,
directors and/or advisors, in respect of any obligations as of the date hereof;
provided, that nothing in this Section 7 shall be taken to release the Parties
from any obligation to pay for any services rendered by any one Party to any of
the other Parties in the period between June 1, 2002 and the Effective Time,
which obligations shall survive in full; provided, further, that payments by
either Party in accordance with the immediately preceding proviso shall not
exceed US$80,000. Subject to the last sentence of this Section 7, the IPC
Entities agree that the aggregate liability of the GC Entities, their employees,
officers, directors, agents, and advisors shall be limited to US$10,000,000 in
the aggregate (the "Cap") with respect to any and all Claims whatsoever that the
IPC Entities may or shall have with respect to the NY Combined Returns, other
corporate income or franchise tax filings in New York, or the UK Form, in each
case for the period ending or including December 20, 2001, including, without
limitation, any tax, interest, or penalties associated with the preparation,
filing, or negotiations of the NY Combined Returns and any appeal or protest of
a Tax Claim resulting from the NY Combined Returns (collectively, the "Combined
Returns Claims"). Notwithstanding the foregoing or anything else to the contrary
contained in this Agreement, the GC Entities, their employees, officers,
directors, agents, and advisors shall not have any liability for any Combined
Return Claims based on negligence in connection with the NY Combined Returns or
the UK Form, or any proceedings, negotiations, communications or discussions
with the Taxing Authorities with respect to such NY Combined Returns or such UK
Form; provided, however, that, to the extent that, as a result of their gross
negligence or their intentional, willful or bad faith breach, the GC Entities
(or any of them), their employees, officers, directors, agents, and advisors,
shall fail to comply with any obligations hereunder, neither the Cap nor the
releases contained herein shall be applicable.
SECTION 8. Withdrawal of General Claim. As of the Effective Time, any
and all proofs of claim that any of the IPC Entities have filed, or caused to be
filed, against any of the GC Entities shall be deemed withdrawn, with prejudice,
and IPC shall take all reasonable steps and file such notices as may be required
to evidence such withdrawal.
SECTION 9. Miscellaneous. (a) Further Assurances. Each of the Parties
will use reasonable efforts to take all action and to do all things necessary,
proper, or advisable in order to consummate and make effective the transactions
contemplated by this Agreement.
(b) Entire Agreement. This Agreement and all exhibits thereto
constitute the entire understanding of the Parties and supersede all prior
negotiations,
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discussions, undertakings, and agreements between the Parties with
respect to the subject matter hereof. This Agreement may be amended or modified
only by a writing executed by the Parties.
(c) Counterparts and Facsimiles. This Agreement may be executed by
the Parties in one or more counterparts, and all of such counterparts shall be
deemed to constitute one and the same instrument. This Agreement may be
delivered by facsimile transmission of the relevant signature pages hereof.
(d) Binding Effect. This Agreement shall be binding upon the legal
representatives, heirs, successors, and assigns of the respective Parties.
(e) Waiver. Any waiver of a right under this Agreement must be in
writing. Any waiver of a particular default shall constitute a waiver of such
default only and not of any other default. Any waiver of a specific right or
remedy under this Agreement shall constitute a waiver of such right or remedy
only and not of any other right or remedy of the waiving Party.
(f) Captions. Any subject headings contained in this Agreement are
included for purposes of convenience only and shall not affect the construction
or interpretation of any of its provisions.
(g) Third Party Beneficiaries. Nothing herein expressed or implied
is intended or shall be construed to confer upon or give any person other than
the Parties, and their permitted successors and assigns, any rights or remedies
under or by reason of this Agreement.
(h) Severability. The Parties agree that if any part, term, or
provision of this Agreement shall be found illegal and unenforceable by any
court of law, the remaining provisions shall be severable, valid, and
enforceable in accordance with their terms.
(i) Applicable Law. This Agreement shall be governed by, and
construed in accordance with, the law of the State of New York.
(j) Notices. Notice from one Party to another relating to this
Agreement shall be deemed effective if made in writing (including
telecommunications) and delivered to the recipient's address or facsimile number
set forth below by any of the following means: (i) hand delivery, (ii)
registered or certified mail, postage prepaid, with return receipt requested,
(iii) Federal Express, UPS, or like overnight courier service, or (iv) facsimile
with receipt in a manner typical with respect to communications of that type.
Notice made in accordance with this Section 9(j) shall be deemed delivered on
receipt if delivered by hand or facsimile transmission, on the third business
day after mailing if mailed by registered or certified mail, or the next
business day after deposit with an overnight courier service if delivered for
next day delivery. Notice in accordance with this Section 9(j) shall be made as
follows:
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If to IPC:
IPC Acquisition Corp.
Wall Street Plaza, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to GC or GC North America:
Global Crossing Ltd.
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Weil, Gotshal & ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Any Party may, from time to time, by written notice to the other Party,
designate a different address, which shall be substituted for the one specified
above for such Party.
(k) Jurisdiction; Venue. Any suit, action or proceeding seeking to
enforce any provision of, or based on any matter arising out of or in connection
with, this Agreement or the transactions contemplated hereby may be brought in
any federal or state court located in the State of New York in each case,
sitting in the Borough of Manhattan, and each of the Parties hereby consents to
the jurisdiction of such courts in any such suit, action or proceeding and
irrevocably waives, to the fullest extent permitted by law, any objection which
it may now or hereafter have to the laying of the venue of any such suit, action
or proceeding in any such court or that any such suit, action or proceeding
which is brought in any such court has been brought in an inconvenient forum.
Process in any such suit, action or proceeding may be served on any Party
anywhere in the world, whether within or without the jurisdiction of any such
court.
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(l) Waiver of Jury Trial. Each of the Parties hereto hereby
irrevocably waives any and all right to trial by jury in any legal proceeding
arising out of or related to this Agreement or the transactions contemplated
hereby.
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IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
duly executed as of the date first above written.
GLOBAL CROSSING LTD.
By: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
GLOBAL CROSSING NORTH AMERICA
HOLDINGS INC.
By: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
IPC ACQUISITION CORP.
By: /S/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Chief Financial Officer
IPC INFORMATION SYSTEMS, INC.
By: /S/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President, Secretary
Solely with respect to
Section 3(e) hereof:
GC PAN EUROPEAN CROSSING UK LIMITED
By: /S/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director
11
EXHIBIT A
Form of Bankruptcy Order
UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------------x
In re :
: Chapter 11 Case No.
:
GLOBAL CROSSING LTD., et al., : 02-40188 (REG)
-- ---
:
Debtors. : (Jointly Administered)
:
-----------------------------------------x
ORDER RESOLVING THE OBJECTION OF IPC ACQUISITION CORP. TO THE
REJECTION OF A CERTAIN EXECUTORY CONTRACT AND APPROVING AND
AUTHORIZING THE SETTLEMENT BETWEEN
THE DEBTORS AND IPC ACQUISITION CORP. AND ITS AFFILIATES
--------------------------------------------------------
The Debtors' Joint Plan of Reorganization under Chapter 11 of the
Bankruptcy Code, dated October 28, 2002 (the "Plan"), having been filed with the
Bankruptcy Court (the "Court") by Global Crossing Ltd. and its direct and
indirect subsidiaries that are debtors in the above-referenced chapter 11 cases
(collectively, the "Debtors") and approved by the Court on December 26, 2002;
and whereas the Plan provides, among other things, for the rejection of that
certain Purchase Agreement, dated as of November 16, 2001, among IPC Acquisition
Corp. ("IPC"), certain Debtors and certain other parties, as amended by that
certain Amendment to the Purchase Agreement, dated as of November 16, 2001 (as
amended as of December 20, 2001, the "Purchase Agreement"); whereas, on November
26, 2002, IPC filed an objection to the Debtors' proposed rejection of the
Purchase Agreement (the "Objection"); and whereas the Debtors and IPC have since
reached a settlement agreement settling the Objection and other matters, which
agreement is memorialized in the Settlement and Rejection Agreement (the
"Settlement Agreement", a copy of which is attached hereto as Exhibit A) and the
second amendment (the
A-1
"Second Amendment", a copy of which is attached hereto as Exhibit B) to the
Network Services, Channel Sales and Transitional Services Agreement (the "NCT
Agreement")1 dated December 20, 2001, as amended July 3, 2002, pursuant to an
order of the Court dated July 3., 2002 ; and whereas the Debtors have provided
notice to the statutory committee of unsecured creditors appointed in these
chapter 11 cases and the Debtors' prepetition bank lenders of the terms of the
Settlement Agreement and the Second Amendment; and it appearing that the
Settlement Agreement and the Second Amendment are in the best interests of the
Debtors and their estates; and it appearing that no other or further notice is
required; and based on all the proceedings had before the Court and after due
deliberation and sufficient cause appearing therefore, it is
ORDERED that, pursuant to sections 105(a) and 363(b)(1) of the Bankruptcy Code,
the Settlement Agreement and the Second Amendment are hereby approved; and it is
further
ORDERED that, pursuant to section 365 of the Bankruptcy Code, the
rejection by the Debtors of the Purchase Agreement is approved as of the date
hereof; and it is further
ORDERED that the Debtors are authorized to execute, deliver, implement
and fully perform any and all obligations, instruments, documents and papers and
to take any and all actions reasonably necessary or appropriate to consummate
the Settlement Agreement; and it is further
ORDERED that the Court shall retain jurisdiction to hear any dispute
among the parties under or in connection with the Settlement Agreement and the
Second Amendment.
Dated: March __, ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
United States Bankruptcy Judge
--------
1 The NCT Agreement was entered into by IPC, Asia Global Crossing IPC
Trading Systems Australia Pty. Ltd. (predecessor-in-interest to IPC
Information Systems (Australia) Pty. Ltd.), Asia Global Crossing Asia
Pacific Commercial Ltd., Global Crossing Ltd. ("GC") and Global
Crossing Telecommunications, Inc.
A-2
EXHIBIT B
Form of Escrow Agreement
ESCROW AGREEMENT, dated as of March____, 2003 (the "Agreement"), by and
among IPC ACQUISITION CORP., a Delaware corporation ("IPC Acquisition" and,
together with its direct and indirect subsidiaries, the "IPC Entities" or
"IPC"), GLOBAL CROSSING LTD., a Bermuda corporation ("GCL"), GLOBAL CROSSING
NORTH AMERICA HOLDINGS INC., a Delaware corporation ("GCNAH" and, together with
GCL and their direct and indirect subsidiaries, each a "GC Entity" and,
collectively, the "GC Entities" or "GC")(GC and together with IPC, the "Parties"
and sometimes referred to herein individually as a "Party") and [ESCROW AGENT],
a banking corporation organized and existing under the laws of ______________,
as escrow agent (the "Escrow Agent").
W I T N E S S E T H:
-------------------
WHEREAS, IPC Acquisition and certain GC Entities and certain other
parties entered into that certain Purchase Agreement (the "Purchase Agreement"),
dated as of November 16, 2001, as amended by that certain Amendment to the
Purchase Agreement, dated as of December 20, 2001 (the "Purchase Agreement
Amendment" and, together with the Purchase Agreement, the "Amended Purchase
Agreement");
WHEREAS, on January 28, 2002, GCL and its affiliated debtors filed
chapter 11 cases under title 11 of the United States Code in the United States
Bankruptcy Court for the Southern District of New York ("Bankruptcy Court");
WHEREAS, on December 26, 2002, the Bankruptcy Court confirmed a joint
plan of reorganization for GCL and its affiliated debtors (the "Plan");
WHEREAS, the Plan provides for the rejection of the Amended Purchase
Agreement;
WHEREAS, IPC Acquisition has filed an objection to GCL's proposed
rejection of the Amended Purchase Agreement and to the confirmation of the Plan
(the "Objection");
WHEREAS, pursuant to the Stipulation, Agreement and Order among IPC
Acquisition and GCL entered as an order of the Bankruptcy Court on December 5,
2002, IPC Acquisition withdrew the Objection to the extent it opposed
confirmation of the Plan, and IPC Acquisition and GCL agreed that a separate
hearing would be held on the Objection insofar as it opposed the rejection of
the Amended Purchase Agreement;
WHEREAS, in resolution of the Objection and certain other matters, the
Parties have agreed to enter into that certain Settlement and Rejection
Agreement, dated as of March 13, 2003 (the "Settlement Agreement");
B-1
WHEREAS, pursuant to Section 3(a) of the Settlement Agreement, IPC has
agreed to deposit, or to cause to be deposited, $5,200,000 in cash (the "Cash
Amount") into an escrow as soon as practicable following the Effective Time (as
defined in the Settlement Agreement), which funds shall be held in escrow and
distributed in accordance with the terms hereof, and the Escrow Agent is willing
to establish such an account, and agrees to hold, administer and distribute such
funds in accordance with the terms hereinafter set forth;
WHEREAS, the Parties represent and warrant to the Escrow Agent that
they have not individually or collectively stated or represented to any
individual or entity that the Escrow Agent's duties will include anything other
than those duties stated in this Agreement;
NOW, THEREFORE, in consideration of the premises, and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
Section 1. Definitions. Capitalized terms used in this Agreement and
not otherwise defined herein shall have the meanings ascribed to them in the
Settlement Agreement.
Section 2. Appointment of Escrow Agent. The Parties hereby designate
and appoint [ESCROW AGENT] to serve as escrow agent in accordance with the
terms, conditions, and provisions set forth herein, and the Escrow Agent hereby
accepts such appointment and agrees to act as the Escrow Agent according to the
terms and conditions of this Agreement. The Escrow Agent represents that it has
the legal power and authority to enter into this Agreement and perform its
duties and obligations hereunder.
Section 3. Establishment of Escrow Account. The Escrow Agent shall
establish and maintain, on behalf of the Parties, an interest bearing trust
account (the "Escrow Account") to which there shall be immediately credited and
held amounts received by the Escrow Agent from IPC in accordance with Section 3
of the Settlement Agreement. The Escrow Agent shall be the sole signatory on the
Escrow Account. The funds credited to the Escrow Account shall be held,
administered and disbursed in accordance with the terms of the Settlement
Agreement and as provided herein. The Escrow Agent shall, to the extent required
by law, segregate the funds credited to the Escrow Account from its other funds
held as an agent or in trust and identify the Cash Amount and the interest
earned thereupon as funds being held in connection with this Agreement. Such
segregation may be accomplished by appropriate identification on the books and
records of the Escrow Agent. The Escrow Agent agrees that its documents and
records with respect to the transactions contemplated hereby will be available
for examination by authorized representatives of the Parties during the Escrow
Agent's regular business hours.
Section 4. Deposits to the Escrow Account; Investment. (a) At Effective
Time, IPC shall deposit or cause to be deposited with the Escrow Agent the Cash
Amount in immediately available funds which shall be held by the Escrow Agent
upon the terms and conditions set forth herein.
(b) The Escrow Agent shall invest the Cash Amount in an
interest-bearing account. Any interest income earned on the funds held in the
Escrow Account shall be deposited
B-2
into the Escrow Account and held, administered and disbursed in accordance with
the terms of this Agreement.
Section 5. Distributions from Escrow Account. (a) Funds on deposit in
the Escrow Account shall be withdrawn and disbursed by the Escrow Agent only in
accordance with this Section 5.
(b) Subject to and in accordance with the terms and conditions set
forth in Sections 3(b) and (c) of the Settlement Agreement, upon the delivery by
GCNAH to the Escrow Agent of a written direction substantially in the form of
Exhibit A attached hereto, directing the Escrow Agent to release from the Escrow
Account and to transfer such funds as specified in such written direction, GCNAH
shall be entitled to receive and the Escrow Agent shall promptly disburse to
GCNAH, the sum of three million two hundred thousand dollars (US$3,200,000) (the
"First Payment") (together with any interest thereon) from the Cash Amount. In
accordance with Section 3(b) of the Settlement Agreement, in the event that the
NY Combined Returns have not been filed on or before March 17, 2003, no GC
Entity shall be entitled to receive the Cash Amount and, upon the delivery by
IPC Acquisition to the Escrow Agent of a written direction substantially in the
form of Exhibit B attached hereto, directing the Escrow Agent to release the
Cash Amount from the Escrow Account and to transfer such funds as specified in
such written direction, the Escrow Agent shall promptly disburse the Cash Amount
(together with any interest thereon) to IPC Acquisition.
(c) Subject to and in accordance with the terms and conditions set
forth in Section 3(d) of the Settlement Agreement, if at any time following the
filing of the NY Combined Returns, GCL arranges for the Letter of Credit to be
issued to IPC Acquisition, GCNAH shall be entitled to receive the balance of the
Cash Amount, being the sum of two million dollars (US$2,000,000) (the "Second
Payment") from the Cash Amount, and the Escrow Agent shall promptly disburse
such Second Payment (together with any interest thereon) to GCNAH upon the
delivery by GCNAH of a written direction substantially in the form of Exhibit A
attached hereto to the Escrow Agent.
(d) For paragraphs (b) and (c) above, the Escrow Agent shall be
entitled to rely, exclusively, on any representation made by a GC Entity or an
IPC Entity in relation to the transfer of funds from the Escrow Account, and
shall transfer funds from the Escrow Account as directed in any such written
direction by such Party. In the event of any inconsistency between the terms and
provisions of this Agreement and the terms and provisions of the Settlement
Agreement, the terms and provisions of the Settlement Agreement shall control.
Section 6. Termination of Escrow Account and Escrow Agreement. The
Escrow Account shall be deemed dissolved and this Escrow Agreement shall
terminate upon the earliest of (i) the written agreement of the parties hereto,
(ii) the transfer of all amounts in the Escrow Account then in the possession of
the Escrow Agent to a court of competent jurisdiction and (iii) the transfer of
all amounts (including any interest earned) in the Escrow Account in accordance
with the terms of Section 5 of this Agreement.
Section 7. Escrow Fees. GC agrees to pay the Escrow Agent its
agreed-upon compensation, as set forth in the attached Exhibit C, for its
services as Escrow Agent hereunder
B-3
promptly upon request therefor, and to reimburse the Escrow Agent for all
expenses of or disbursements incurred by the Escrow Agent in the performance of
its duties hereunder, including the reasonable fees, expenses and disbursements
of counsel to the Escrow Agent. Invoices for such compensation and expenses
shall be submitted by the Escrow Agent directly to GC and shall not be payable
from the Escrow Account.
Section 8. Rights, Duties and Immunities of Escrow Agent. Acceptance by
the Escrow Agent of its duties under this Escrow Agreement is subject to the
following terms and conditions, which all parties to this Escrow Agreement
hereby agree shall govern and control the rights, duties and immunities of the
Escrow Agent.
(a) The duties and obligations of the Escrow Agent shall be determined
solely by the express provisions set forth in this Agreement and the Escrow
Agent shall not be liable except for the performance of such duties and
obligations as are specifically set out in this Escrow Agreement. The Escrow
Agent shall not be required to inquire as to the performance or observation of
any obligation, term or condition under any agreement or arrangement by GC or
IPC or any of their affiliates. The Escrow Agent is not a party to, and is not
bound by, any agreement or other document out of which this Agreement may arise.
The Escrow Agent shall be under no liability to any party hereto by reason of
any failure on the part of any party hereto or any maker, guarantor, endorser or
other signatory of any document or any other person to perform such person's
obligations under any such document. The Escrow Agent shall not be bound by any
waiver, modification, termination or rescission of this Agreement or any of the
terms hereof, unless evidenced by a writing delivered to the Escrow Agent signed
by the proper party or parties and, if the duties or rights of the Escrow Agent
are affected, unless it shall give its prior written consent thereto. This
Agreement shall not be deemed to create a fiduciary relationship between the
parties hereto under state or federal law.
(b) The Escrow Agent shall not be responsible in any manner for the
validity or sufficiency of this Agreement or of any property delivered
hereunder, or for the value or collectibility of any note, check or other
instrument, if any, so delivered, or for any representations made or obligations
assumed by any party other than the Escrow Agent. Nothing herein contained shall
be deemed to obligate the Escrow Agent to deliver any cash, instruments,
documents or any other property referred to herein, unless the same shall have
first been received by the Escrow Agent pursuant to this Agreement.
(c) GC and IPC agree to jointly and severally indemnify the Escrow
Agent for, and hold it harmless against, any loss, liability or expense,
including but not limited to counsel fees, incurred without gross negligence,
bad faith or willful misconduct on the part of the Escrow Agent arising out of
or in conjunction with its acceptance of, or the performance of its duties and
obligations under, this Agreement, as well as the costs and expenses of
defending against any claim or liability arising out of or relating to this
Agreement.
(d) The Escrow Agent shall be fully protected in acting on and relying
upon any written notice, direction, request, waiver, consent, receipt or other
paper or document which the Escrow Agent in good faith believes to have been
signed and presented by the proper party or parties.
B-4
(e) The Escrow Agent shall not be liable for any error of judgment, or
for any act done or step taken or omitted by it in good faith or for any mistake
in act or law, or for anything which it may do or refrain from doing in
connection herewith, except its own gross negligence, bad faith or willful
misconduct.
(f) The Escrow Agent may seek the advice of legal counsel in the event
of any dispute or question as to the construction of any of the provisions of
this Agreement or its duties hereunder, and it shall incur no liability and
shall be fully protected in respect of any action taken, omitted or suffered by
it in good faith in accordance with the advice or opinion of such counsel.
(g) The agreements set forth in this Section 8 shall survive the
resignation or removal of the Escrow Agent, the termination of this Agreement
and the payment of all amounts hereunder.
Section 9. Replacement of Escrow Agent. The Escrow Agent, and the
Escrow Agent's successors hereinafter appointed, shall have the right to resign
upon thirty (30) days written notice to GC and IPC. Similarly, the Escrow Agent
may be removed and replaced following thirty (30) days joint written notice from
GC and IPC to the Escrow Agent. In the event of such resignation or removal, GC
and IPC shall appoint by mutual agreement a successor escrow agent hereunder by
delivering to the Escrow Agent a written notice of such appointment. If the
Parties are unable to agree on a successor escrow agent within thirty (30) days
following the date of the notice of such resignation or removal, then any of the
parties to this Agreement may petition a court of competent jurisdiction to
appoint one, or for other appropriate relief, and the resulting appointment
shall be binding upon all parties to this Agreement. Notwithstanding the
foregoing, no resignation or removal shall be effective until a successor escrow
holder has acknowledged its appointment as such in writing. Upon receipt of such
notice, the Escrow Agent shall deliver to the designated successor escrow agent
all money and other property held hereunder and shall thereupon be released and
discharged from any and all further responsibilities whatsoever under this
Agreement; provided, however, that the Escrow Agent shall not be deprived of its
compensation earned prior to such time.
Section 10. Notices. Notice from one Party to another relating to this
Agreement shall be deemed effective if made in writing (including
telecommunications) and delivered to the recipient's address or facsimile number
set forth below by any of the following means: (i) hand delivery, (ii)
registered or certified mail, postage prepaid, with return receipt requested,
(iii) Federal Express, UPS, or like overnight courier service, or (iv) facsimile
with receipt in a manner typical with respect to communications of that type.
Notice made in accordance with this Section 10 shall be deemed delivered on
receipt if delivered by hand or facsimile transmission, on the third business
day after mailing if mailed by registered or certified mail, or the next
business day after deposit with an overnight courier service if delivered for
next day delivery. Notice in accordance with this Section 10 shall be made as
follows:
B-5
If to GC:
Global Crossing Ltd.
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: General Counsel
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to IPC:
IPC Acquisition Corp.
Wall Street Plaza, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Escrow Agent:
[Named Trust Company
Address
Attn: Corporate Trust Administration
Telephone:]
Any party to this Agreement may, from time to time, by written notice to other
parties to this Agreement, designate a different address, which shall be
substituted for the one specified above for such party.
Section 11. Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective legal
representatives, heirs, executors, successors and assigns.
Section 12. Waiver. Any waiver of a right under this Agreement must be
in writing. Any waiver of a particular default shall constitute a waiver of such
default only and not of any other default. Any waiver of a specific right or
remedy under this Agreement shall constitute a waiver of such right or remedy
only and not of any other right or remedy of the waiving Party.
Section 13. Interpretation. The headings of the sections contained in
this Agreement are solely for convenience or reference and shall not affect the
meaning or interpretation of this Agreement.
Section 14. Amendments. This Agreement may be amended or modified at
any time or from time to time in writing executed by the parties to this
Agreement.
Section 15. Applicable Law. This Agreement shall be governed by, and
construed in accordance with, the law of the State of New York.
B-6
Section 16. Jurisdiction; Venue. Any suit, action or proceeding seeking
to enforce any provision of, or based on any matter arising out of or in
connection with, this Agreement or the transactions contemplated hereby may be
brought in any federal or state court located in the State of New York in each
case, sitting in the Borough of Manhattan, and each of the Parties hereby
consents to the jurisdiction of such courts in any such suit, action or
proceeding and irrevocably waives, to the fullest extent permitted by law, any
objection which it may now or hereafter have to the laying of the venue of any
such suit, action or proceeding in any such court or that any such suit, action
or proceeding which is brought in any such court has been brought in an
inconvenient forum. Process in any such suit, action or proceeding may be served
on any Party anywhere in the world, whether within or without the jurisdiction
of any such court.
Section 17. Waiver of Jury Trial. Each of the Parties hereto hereby
irrevocably waives any and all right to trial by jury in any legal proceeding
arising out of or related to this Agreement or the transactions contemplated
hereby.
Section 18. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
Section 19. Severability. If any provisions of this Escrow Agreement
shall be declared by any court of competent jurisdiction illegal, void or
unenforceable, the other provisions shall not be affected, but shall remain in
full force and effect.
B-7
IN WITNESS WHEREOF, the parties hereto have executed this Escrow
Agreement as of the date and the year first above written.
Global Crossing Ltd.
By:___________________________
Name:
Title:
Global Crossing North America Holdings
By:___________________________
Name:
Title:
IPC Acquisition Corp.
By:___________________________
Name:
Title:
[Named Trust Company],
as Escrow Agent
By:___________________________
Name:
Title:
B-8
Exhibit A
[Date]
[Named Trust Company, as Escrow Agent
Address
Address
Attn: Corporate Trust Administration]
Ladies and Gentlemen:
In accordance with the terms of that certain Escrow Agreement, dated as
of March______, 2003 (the "Escrow Agreement"), between IPC Acquisition Corp., a
Delaware corporation ("IPC"), Global Crossing Ltd., a Bermuda corporation
("GCL"), Global Crossing North America Holdings Inc., a Delaware corporation
("GCNAH" and, together with GCL and their direct and indirect subsidiaries,
collectively, "GC") and [Named Trust Company], as escrow agent (the "Escrow
Agent"), GC hereby represents that the conditions set forth in Section
5[(b)][(c)] of the Escrow Agreement have been satisfied and that the Escrow
Agent is hereby directed to release, pursuant to Section 5 of the Escrow
Agreement, the [First] [Second] Payment from the Escrow Account (as defined in
the Escrow Agreement) and transfer such funds to GCNAH as follows:
[Payment instructions]
A Global Crossing Entity
[Global Crossing North America Holdings]
By:___________________________
Name:
Title:
B-9
Exhibit B
[Date]
[Named Trust Company, as Escrow Agent
Address
Address
Attn: Corporate Trust Administration]
Ladies and Gentlemen:
In accordance with the terms of that certain Escrow Agreement, dated as
of ____________, 2002 (the "Escrow Agreement"), between IPC Acquisition Corp., a
Delaware corporation ("IPC"), Global Crossing Ltd., a Bermuda corporation
("GCL"), Global Crossing North America Holdings Inc., a Delaware corporation
("GCNAH" and, together with GCL and their direct and indirect subsidiaries,
collectively, "GC") and [Named Trust Company], as escrow agent (the "Escrow
Agent"), IPC hereby represents that the conditions set forth in Section 5(b) of
the Escrow Agreement have been satisfied and that the Escrow Agent is hereby
directed to release, pursuant to Section 5 of the Escrow Agreement, the Cash
Amount (as defined in the Escrow Agreement) and transfer such funds to IPC as
follows:
[Payment instructions]
IPC Acquisition Corp.
By:____________________
Name:
Title:
B-10
Exhibit C
---------
Global Crossing Ltd.
SCHEDULE OF FEES
To Act As
Escrow Agent
NOTE:
Subject to a legal and administrative review of the governing documents
and acceptable indemnification for our fees and expenses from a creditworthy
entity. Out of pocket expenses (including outside counsel's fees and expenses in
connection with the closing and in connection with any post-closing matters) are
additional and are billed separately within 30 days from closing. Wilmington
Trust requests that whenever possible, the Initial Fee and the first year's
Annual Administration Fee be paid on the closing date by wire transfer per the
following wire transfer instructions: Wilmington Trust Company, Wilmington,
Delaware; ABA No. ▇▇▇▇▇▇▇▇▇; for credit to the account of Corporate Trust
Administration - Income Account; Account No. 9974-0 (Income); Attn: ▇▇▇▇▇
▇▇▇▇▇▇; Ref: Trustee Fees and Expenses for [transaction name]. Thereafter, the
Annual Administration Fee is due and payable annually in advance on each
anniversary of the closing date. Transaction Fees are due and payable annually
in arrears. All fees are non-refundable and will not be prorated in the event of
an early termination of the Trust. In the event that the transaction does not
close, Wilmington Trust reserves the right to be paid its Initial Fee. All fees
quoted are guaranteed for a period of 90 days.
Annual Administration Fee $ 7,500.00
-------------------------
Covers acceptance of appointment as Escrow Agent including complete study of
drafts of Escrow Agreement and all supporting documents in connection therewith,
conferences until final Agreement is agreed upon, execution of final Agreement
and administrative duties in connection with the security provisions of the
Agreement.
Transaction Fees:
B-11
a. Purchase, sale, withdrawal, maturities
calls and puts of domestic securities $15.00
b. Physical delivery of domestic securities $50.00
c. Purchase of Eurodollar certificate of deposit $65.00
d. Principal amortizing securities
(per pool/per month) $10.00
e. Wire charge (per transfer)
Outgoing* $25.00
Incoming* $10.00
Transfer or Re-registration Fee: $1,000
Termination Fee: To be determined**
E-Room Technology To be determined(1)
*Transfers made by associate banks may result in additional wire charges.
**Wilmington Trust reserves the right to charge a fee relating to the
termination of the Trust and the final distribution of the property held by the
trust; such fee to be determined at the time of termination.
(1) Wilmington Trust will provide a confidential `cyber-room' service on the
internet with 24x7 worldwide access to manage transaction related documents
during pre-closing, closing and post closing. Service can be secured via a
separate agreement and is not contingent upon Wilmington Trust's participation
in the transaction.
AGREED TO & ACCEPTED _____________________
DATE _____________________
B-12
EXHIBIT C
Form of Letter of Credit
BANK NAME
FOR INTERNAL IDENTIFICATION
PURPOSES ONLY
OUR NO.: ___________OTHER____________
APPLICANT: _______________________
ISSUE DATE: ______________________
IRREVOCABLE LETTER OF CREDIT NO. ___________________
TO: IPC ACQUISITION CORP.
Wall Street Plaza
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
WE HEREBY ESTABLISH THIS IRREVOCABLE STANDBY LETTER OF CREDIT IN FAVOR
OF IPC ACQUISITION CORP. (THE "BENEFICIARY") FOR DRAWINGS UP TO TWO MILLION
UNITED STATES DOLLARS (US$2,000,000) (SUCH MAXIMUM AMOUNT, AS MAY BE REDUCED
FROM TIME TO TIME, THE "STATED AMOUNT") EFFECTIVE IMMEDIATELY. THIS LETTER OF
CREDIT IS ISSUED, PRESENTABLE AND PAYABLE AT OUR OFFICE AT [ISSUING BANK'S
ADDRESS] AND EXPIRES WITH OUR CLOSE OF BUSINESS ON DECEMBER 20, 2010.
THE TERM "BENEFICIARY" INCLUDES ANY SUCCESSOR BY OPERATION OF LAW OF
EACH NAMED BENEFICIARY, INCLUDING, WITHOUT LIMITATION, ANY LIQUIDATOR,
REHABILITATOR, RECEIVER OR CONSERVATOR.
WE IRREVOCABLY AUTHORIZE YOU TO DRAW ON US IN ACCORDANCE WITH THE TERMS
AND CONDITIONS HEREINAFTER SET FORTH, AN AMOUNT NOT EXCEEDING THE STATED AMOUNT
AVAILABLE AGAINST PRESENTATION OF A DATED DRAWING REQUEST DRAWN ON [NAME OF
ISSUING BANK], MANUALLY SIGNED BY AN AUTHORIZED REPRESENTATIVE OF THE
BENEFICIARY COMPLETED SUBSTANTIALLY IN THE FORM OF ANNEX 1 HERETO.
THE ABOVE DRAWING REQUEST AND ALL COMMUNICATIONS WITH RESPECT TO THIS
LETTER OF CREDIT SHALL BE IN WRITING, ADDRESSED TO US AT
C-1
[ ], ATTENTION: [ ], TELEPHONE [ ], TELECOPIER [ ], REFERENCING THIS LETTER OF
CREDIT NO. [ ] AND PRESENTED TO US BY TESTED TELEX, DELIVERY IN PERSON OR
FACSIMILE TRANSMISSION AT SUCH ADDRESS, PROVIDED THAT THE ORIGINAL OF THE ABOVE
DRAWING REQUEST OR SUCH COMMUNICATIONS, AS THE CASE MAY BE, SHALL BE SENT TO US
AT SUCH ADDRESS BY OVERNIGHT COURIER FOR RECEIPT BY US WITHIN THREE (3) BUSINESS
DAYS OF THE DATE OF ANY SUCH FACSIMILE TRANSMISSION
IF THE DRAWING REQUEST IS PRESENTED IN COMPLIANCE WITH THE TERMS OF
THIS LETTER OF CREDIT TO US AT SUCH ADDRESS BY 12:00 NOON NEW YORK TIME ON ANY
BUSINESS DAY (AS HEREINAFTER DEFINED), PAYMENT WILL BE MADE NOT LATER THAN 3:00
P.M. NEW YORK TIME ON SUCH DAY AND IF SUCH DRAWING REQUEST IS SO PRESENTED TO US
AFTER 12:00 NOON NEW YORK TIME ON ANY BUSINESS DAY, PAYMENT WILL BE MADE ON THE
FOLLOWING BUSINESS DAY NOT LATER THAN 1:00 P.M. NEW YORK TIME. PAYMENT UNDER
THIS LETTER OF CREDIT SHALL BE MADE IN IMMEDIATELY AVAILABLE FUNDS BY WIRE
TRANSFER TO SUCH ACCOUNT AS MAY BE DESIGNATED BY THE BENEFICIARY IN THE
APPLICABLE DRAWING REQUEST
AS USED IN THIS LETTER OF CREDIT, "BUSINESS DAY" MEANS ANY DAY ON WHICH
COMMERCIAL BANKS LOCATED IN NEW YORK, NEW YORK ARE NOT REQUIRED OR AUTHORIZED TO
REMAIN CLOSED.
IN THE EVENT THAT A DRAWING REQUEST FAILS TO COMPLY WITH THE TERMS OF
THIS LETTER OF CREDIT, WE SHALL PROVIDE THE BENEFICIARY PROMPT NOTICE OF SAME
STATING THE REASONS THEREFOR AND SHALL UPON YOUR INSTRUCTIONS HOLD ANY
NON-CONFORMING DRAWING REQUEST AND OTHER DOCUMENTS AT YOUR DISPOSAL OR RETURN
ANY NON-CONFORMING DRAWING REQUEST AND OTHER DOCUMENTS TO THE BENEFICIARY AT THE
ADDRESS SET FORTH ABOVE BY DELIVERY IN PERSON OR FACSIMILE TRANSMISSION (WITH
ORIGINALS THEREOF SENT BY OVERNIGHT COURIER FOR RECEIPT WITHIN TWO (2) BUSINESS
DAYS). UPON BEING NOTIFIED THAT THE DRAWING WAS NOT EFFECTED IN COMPLIANCE WITH
THIS LETTER OF CREDIT, THE BENEFICIARY MAY ATTEMPT TO CORRECT SUCH NON-COMPLYING
DRAWING REQUEST IN ACCORDANCE WITH THE TERMS OF THIS LETTER OF CREDIT. IF A
NON-COMPLYING REQUEST IS MADE BY THE BENEFICIARY PRIOR TO THE TERMINATION OF
THIS LETTER OF CREDIT, THE LETTER OF CREDIT SHALL REMAIN IN FORCE THROUGH THE
DATE WHICH IS THE LATER OF (I) THE EXPIRATION DATE OF THIS LETTER OF CREDIT AND
(II) THE DATE WHICH IS FIVE (5) BUSINESS DAYS AFTER THE DATE UPON WHICH THE
REQUEST WAS DENIED.
EXCEPT AS EXPRESSLY STATED HEREIN, THIS UNDERTAKING IS NOT SUBJECT TO
ANY AGREEMENT, CONDITION OR QUALIFICATION. THE OBLIGATION OF [ISSUING BANK]
UNDER THIS LETTER OF CREDIT IS THE INDIVIDUAL OBLIGATION OF [ISSUING BANK], AND
IS IN NO WAY CONTINGENT UPON REIMBURSEMENT WITH RESPECT THERETO.
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IT IS A CONDITION OF THIS LETTER OF CREDIT THAT IT SHALL BE DEEMED
AUTOMATICALLY EXTENDED WITHOUT AMENDMENT FOR ONE YEAR FROM THE EXPIRY DATE
HEREOF, OR ANY FUTURE EXPIRATION DATE, UNLESS AT LEAST THIRTY DAYS PRIOR TO ANY
EXPIRATION DATE WE NOTIFY YOU BY REGISTERED MAIL THAT WE ELECT NOT TO CONSIDER
THIS LETTER OF CREDIT RENEWED FOR ANY SUCH ADDITIONAL PERIOD.
THIS LETTER OF CREDIT IS SUBJECT TO AND GOVERNED BY THE LAW OF THE
STATE OF NEW YORK, AND THE 1993 REVISION OF THE UNIFORM CUSTOMS AND PRACTICE FOR
DOCUMENTARY CREDITS OF THE INTERNATIONAL CHAMBER OF COMMERCE (PUBLICATION 500)
AND, IN THE EVENT OF ANY CONFLICT, THE INTERNAL LAW OF THE STATE OF NEW YORK
WILL CONTROL. IF THIS CREDIT EXPIRES DURING AN INTERUPTION OF BUSINESS AS
DESCRIBED IN ARTICLE 17 OF SAID PUBLICATION 500, THE [ISSUING BANK] HEREBY
SPECIFICALLY AGREES TO EFFECT PAYMENT IF THIS CREDIT IS DRAWN AGAINST WITHIN
THIRTY (30) DAYS AFTER THE RESUMPTION OF BUSINESS.
VERY TRULY YOURS,
[ISSUING BANK]
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Annex 1
DRAWING REQUEST
[ ]
[ ]
Attention: [ ]
Ladies and Gentlemen:
The undersigned hereby draws on [ ] Letter of Credit No. [ ]
Irrevocable Standby Letter of Credit (the "Letter of Credit"), dated January __,
2003, issued by you in favor of us.
In connection with this drawing, we hereby certify that:
a. This drawing in the amount of [___________________] United
States Dollars (US$[_________]) is being made pursuant to the
Letter of Credit.
b. GC Pan European Crossings UK Limited ("GC Pan European") has
failed to make certain rental or other payments under the
terms of that certain underlease (the "Worship Street
Sublease"), dated October 8, 2002, between IPC Information
Systems, Inc. ("IPC Info") and GC Pan European. In accordance
with Section 3(e) of that certain Settlement and Rejection
Agreement dated March 13, 2003, between IPC Acquisition Corp.
("IPC"), Global Crossing Ltd. and Global Crossing North
America Holdings Inc., IPC has the right to make the drawing
requested hereby upon such failure of GC Pan European to make
such payments under the Worship Street Sublease.
c. You are directed to make payment of the requested drawing to
account no. [_________], ABA no. [__________] at [bank name
and address].
IN WITNESS WHEREOF, the undersigned has executed and delivered this
request on this ___ day of
-----------, -----.
IPC ACQUISITON CORP.
By: ___________________________
Name:
Title:
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EXHIBIT D
Form of Second Amendment
SECOND AMENDMENT, dated as of March 13, 2003 (this "Second Amendment")
among IPC ACQUISITION CORP. ("Purchaser"), a Delaware corporation, IPC
INFORMATION SYSTEMS INC. ("IPC"), a Delaware corporation, IPC INFORMATION
SYSTEMS (AUSTRALIA) PTY. LTD. ("IPC Australia" and together with Purchaser and
IPC and their respective subsidiaries, the "IPC Entities"), GLOBAL CROSSING
LIMITED ("GC"), a Bermuda corporation, and GLOBAL CROSSING TELECOMMUNICATIONS
INC. ("GCT"), a Michigan corporation, to the NETWORK SERVICES, CHANNEL SALES AND
TRANSITIONAL SERVICES AGREEMENT, dated as of December 20, 2001 (the
"Agreement"), as amended pursuant to the AMENDMENT, dated July 3, 2002 (the
"Amendment", and together with the Agreement, the "Amended Agreement") among the
parties to this Second Amendment. The aforementioned entities are sometimes
referred to herein individually as a "Party" and collectively as "Parties."
WHEREAS, the Parties entered into the Agreement;
WHEREAS, on the Filing Date, GC and its affiliated debtors filed
chapter 11 cases under title 11 of the United States Code in the United States
Bankruptcy Court for the Southern District of New York (the "Bankruptcy Court");
WHEREAS, on March 11, 2002, Purchaser filed a motion with the
Bankruptcy Court to compel GC and GCT to assume or reject the Agreement;
WHEREAS, on July 3, 2002, in connection with such motion and to resolve
certain matters between them, the Parties entered into the Amendment and the
Bankruptcy Court authorized and approved by an order of such court the
Amendment;
WHEREAS, on December 26, 2002, the Bankruptcy Court confirmed a joint
plan of reorganization for GC and its affiliated debtors (the "Plan");
WHEREAS, the Plan provided for the rejection of that certain Purchase
Agreement, dated November 16, 2001, as amended, among the Purchaser, GC and the
other parties thereto (the "Purchase Agreement");
WHEREAS, Purchaser has filed an objection to the proposed rejection of
the Purchase Agreement and to the confirmation of the Plan (the "Objection");
WHEREAS, pursuant to the Stipulation, Agreement and Order among
Purchaser and GC entered as an order of the Bankruptcy Court on December 5,
2002, Purchaser withdrew the Objection to the extent it opposed confirmation of
the Plan, and Purchaser and GCL agreed that a separate hearing would be held on
the Objection insofar as it opposed the rejection of the Purchase Agreement; and
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WHEREAS, in connection with the Objection and to resolve certain
matters, Purchaser, GC and certain other parties have agreed to enter into that
certain settlement and rejection agreement, dated as of the date hereof (the
"Termination Agreement"); and
WHEREAS, in connection with Purchaser's motion and to resolve certain
matters, the Parties desire to amend the terms of the Amended Agreement.
NOW, THEREFORE, in consideration of the premises, and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Parties hereby agree as follows:
SECTION 1. Definitions. Capitalized terms used in this Second Amendment
and not otherwise defined herein shall have the meanings ascribed to them in the
Agreement or the Amendment.
SECTION 2. Effectiveness. Within two (2) business days following the
execution of this Second Amendment, GC shall submit to the Bankruptcy Court a
proposed order substantially in the form attached hereto as Exhibit A. This
Second Amendment shall become effective (the "Effective Time") upon (i) the
first business day following the day this Second Amendment and the Termination
Agreement have been authorized and approved by the order of the Bankruptcy Court
(but without any changes that would adversely affect the rights of the parties
under this Second Amendment or the Termination Agreement) (the "Order"), or (ii)
the day immediately following the Suspension Termination Date (as defined in the
Amendment); provided that, if the Suspension Termination Date shall occur prior
to the satisfaction of the conditions set forth in clause (i) of this Section 2,
GC shall (and shall cause its applicable affiliates to) (A) take all actions and
enter into and/or execute or cause to be executed any instrument, agreement or
document necessary to effect and implement this Second Amendment and the
Termination Agreement and the transactions set forth in this Second Amendment
and the Termination Agreement and (B) use reasonable efforts to obtain any
necessary authorization or approval in connection with this Second Amendment and
the Termination Agreement. Unless and until the foregoing conditions are
satisfied, this Second Amendment shall be null and void and of no force and
effect, shall be without prejudice to the Parties hereto and shall not be
referred to by either of the Parties for any purpose whatsoever except as to and
for the purposes of this Section 2. The authorization and approval by the
Bankruptcy Court pursuant to the Order shall constitute the granting of
appropriate authority and a direction to the Parties hereto to take all actions
and enter into and/or execute any instrument, agreement or document as may be
necessary to effect and implement the terms hereof.
SECTION 3. Amendment to Article II of the Agreement. Article II of the
Agreement is hereby amended by adding a new Section 2.5 at the end thereof as
follows:
"2.5 Amendment to Article II. Notwithstanding anything to the
contrary contained in this Agreement, the IPC Entities agree
that the GC Entities (or any of their subsidiaries) shall be
the IPC Entities' Preferred Provider of Network Services from
the Effective Date until January 1, 2006; provided, however,
that the IPC Entities shall be permitted to use any other
provider of Network Services (a) in accordance with Section
2.1 of the Agreement, or (b) so long as the IPC
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Entities' aggregate annual payments to the GC Entities and
their subsidiaries for Network Services equal or exceed
US$48,000.
SECTION 4. Termination of Article III of the Agreement. Article III of
the Agreement is hereby terminated in its entirety and shall no longer have any
force and effect.
SECTION 5. Amendment to Article IV of the Agreement. Section 4.1(a) of
the Agreement is hereby amended by deleting the words "third (3rd) anniversary"
in the second line of the first sentence and replacing them with the words "June
20, 2004."
SECTION 6. Amendment to Article VI of the Agreement. Section 6.11(c) of
the Agreement is hereby amended by deleting the works "the second (2nd)
anniversary of the Closing Date" in the first line of the second sentence and
replacing them with the words "June 20, 2003."
SECTION 7. Acknowledgment and Mutual Release. This Second Amendment
shall constitute a full and complete discharge, satisfaction, and release of any
and all claims, causes of action, actions, suits, debts, dues, sums of money,
accounts, reckonings, bonds, bills, specialties, controversies, agreements,
promises, variances, trespasses, damages, judgments, extents, executions, and
demands whatsoever that the GCT Group, on the one hand, and IPC and the IPC
Entities, on the other hand, have had or have against the other in respect of
any obligations arising out of or pursuant to the Amended Agreement as of the
date hereof. Notwithstanding the foregoing, nothing in this Section 7 shall be
taken to release the Parties from any obligation to pay for any services
rendered by any one Party to any of the other Parties in the period between June
1, 2002 and the Effective Time, which obligations shall survive in full;
provided, further, that payments by either Party in accordance with the
immediately preceding proviso shall not exceed US$80,000 (ii) the Parties shall
remain obligated to each other for any obligations which may arise under the
Amended Agreement (as further amended and modified by this Second Amendment)
after the date hereof. Each Party hereby acknowledges that the other Parties
have complied with all of their respective obligations under the Amended
Agreement as of the date hereof and waives any rights it may have respecting any
nonperformance of any such obligation.
SECTION 8. Miscellaneous.
(a) Except as otherwise expressly modified by this Second
Amendment, the Agreement and the Amendment are, and shall
continue to be, in full force and effect in accordance with
their respective terms.
(b) The Agreement (as amended and modified by the Amendment and
this Second Amendment) constitutes the entire agreement and
supersedes all prior agreements and understandings, both
written and oral, among the parties with respect to the
subject matter hereof.
(c) This Second Amendment may be executed by the Parties on one or
more counterparts, and all of such counterparts shall be
deemed to constitute one and the same instrument. This Second
Amendment may be delivered by facsimile transmission of the
relevant signature pages hereof.
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(d) THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
[remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the Parties hereto have caused this Second
Amendment to be duly executed as of the date first above written.
GLOBAL CROSSING
TELECOMMUNICATIONS, INC.
By:
-----------------------------------
Name:
Title:
GLOBAL CROSSING LTD.
By:
-----------------------------------
Name:
Title:
IPC ACQUISITION CORP.
By:
-----------------------------------
Name:
Title:
IPC INFORMATION SYSTEMS, INC.
By:
-----------------------------------
Name:
Title:
IPC INFORMATION SYSTEMS (AUSTRALIA)
PTY. LTD.
By:
-----------------------------------
Name:
Title:
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