EXHIBIT 10.7
EXECUTION VERSION
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) XXX.XXX. ("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 an 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
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 or 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 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.
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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 words "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. Acknowledgement 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 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.
(d) THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAW OF THE STATE OF NEW YORK.
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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: /s/ XXXXXXX XXXXXX
--------------------------
Name: Xxxxxxx Xxxxxx
Title: Chief Financial
Officer
IPC INFORMATION SYSTEMS, INC.
By: /s/ Xxxx XxXxxxxx
--------------------------
Name: Xxxx XxXxxxxx
Title: Secretary, Vice
President
IPC INFORMATION SYSTEMS
(AUSTRALIA) XXX.XXX.
By: /s/ XXXXXXX X XXXXXX
--------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Authorized
Signatory
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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: /s/ XXXXXXXX XXXXXX
--------------------------
Name: Xxxxxxxx Xxxxxx
Title: Vice President
GLOBAL CROSSING LTD.
By: /s/ XXXXXXXX XXXXXX
--------------------------
Name: Xxxxxxxx Xxxxxx
Title: Vice President
IPC ACQUISITION CORP.
By:
--------------------------
Name:
Title:
IPC INFORMATION SYSTEMS, INC.
By:
--------------------------
Name:
Title:
IPC INFORMATION SYSTEMS
(AUSTRALIA) XXX.XXX.
By:
--------------------------
Name:
Title:
D-5
EXHIBIT A
Form of Order
UNITED STATE BANKRUPTCY COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------
IN RE :
: CHAPTER 11 CASE NO.
:
GLOBAL CROSSING LTD., ET AL., : 02-40188 (REG)
:
DEBTORS. : (JOINTLY ADMINISTERED)
:
------------------------------
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
C-1
Agreement", a copy of which is attached hereto as Exhibit A) and the second
amendment (the "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 thereof, 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 13 , 0000
Xxx Xxxx, Xxx Xxxx
------------------------------
XXXXX X. XXXXXXX
UNITED STATES BANKRUPTCY JUDGE
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(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.
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