EXHIBIT 2.2
EXECUTION COPY
AMENDMENT, dated as of December 20, 2001 (this "Amendment") among
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GLOBAL CROSSING LTD. ("GC"), a Bermuda corporation, ASIA GLOBAL CROSSING LTD.
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("ASIA GC"), a Bermuda corporation, GLOBAL CROSSING NORTH AMERICAN HOLDINGS INC.
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("GC North America"), a Delaware corporation, SATURN GLOBAL NETWORK SERVICES
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HOLDINGS LIMITED ("Saturn"), a company incorporated under the laws of the United
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Kingdom, IXNET HONG KONG LTD. ("IXnet HK"), a Hong Kong corporation, ASIA GLOBAL
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CROSSING (SINGAPORE) PTE LTD., a Singapore corporation ("AGC Singapore") (each a
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"Seller" and, collectively, the "Sellers"), GS CAPITAL PARTNERS 2000, L.P., GS
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CAPITAL PARTNERS 2000 OFFSHORE, L.P., GS CAPITAL PARTNERS 2000 GMBH & CO.
BETEILIGUNGS KG, BRIDGE STREET SPECIAL OPPORTUNITIES FUND 2000, L.P., GS CAPITAL
PARTNERS 2000 EMPLOYEE FUND, L.P. and STONE STREET FUND 2000, L.P. (collectively
the "GS Funds") and IPC ACQUISITION CORP (formerly GS IPC Acquisition Corp.), a
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Delaware corporation (the "Buyer"), to the PURCHASE AGREEMENT dated as of
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November 16, 2001 (the "Purchase Agreement") among the parties to this
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Amendment.
WHEREAS, the parties to this Amendment have entered into the Purchase
Agreement;
WHEREAS, the parties to this Amendment desire to amend the terms of
the Purchase Agreement as set forth below; and
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 hereby agree as follows:
SECTION 1. Definitions. Defined terms used in this Amendment not
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otherwise defined herein shall have the meanings ascribed to them in the
Purchase Agreement.
SECTION 2. Amendment to Sections 2.3 and 2.4 of the Purchase
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Agreement. Sections 2.3 and 2.4 of the Purchase Agreement are hereby deleted and
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the following text shall be substituted in lieu thereof:
"SECTION 2.3 Working Capital Adjustments.
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(a) At the Closing, the Sellers shall pay to the Buyer, by wire
transfer of immediately available funds to such bank accounts of the Buyer
as the Buyer shall designate in writing to the Sellers, an amount equal to
$9,754,000.
(b) No later than January 2, 2002, the Buyer shall:
(i) prepare, in accordance with GAAP (applied in a
manner consistent with the Reference Balance Sheet as to principles,
policies, methodologies and procedures), except for the exceptions
thereto identified on Schedule 5.4(c), an estimated combined balance
sheet of the Companies and their respective Subsidiaries as of the
Closing Date (the "Estimated Preliminary Balance Sheet"); and
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(ii) deliver to the Sellers a certificate executed by
Buyers and prepared with the assistance of a nationally
recognized public accounting firm setting forth or attaching
the Estimated Preliminary Balance Sheet and the Buyer's
estimated calculation of (A) the amount of "working capital"
of the Companies and their respective Subsidiaries (as defined
in Section 2.3(f)) as of the Closing Date ("Estimated
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Preliminary Net Working Capital Amount"), (B) the amount of
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customer advances related to maintenance contracts of the
Companies and their respective Subsidiaries as of the Closing
Date ("Estimated Preliminary Deferred Maintenance Revenue
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Amount"), (C) the amount of customer advances related to
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uncompleted installation contracts of the Companies and their
respective Subsidiaries as of the Closing Date (the "Estimated
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Preliminary Deferred Turret Revenue Amount") and (D) the
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amount of costs incurred on uncompleted installation contracts
of the Companies and their respective Subsidiaries as of the
Closing Date ("Estimated Preliminary Work-In-Process Amount,"
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together with the Estimated Preliminary Net Working Capital
Amount, the Estimated Preliminary Deferred Turret Revenue
Amount and the Estimated Preliminary Deferred Maintenance
Revenue Amount, the "Estimated Preliminary Amounts"), each as
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derived from the Estimated Preliminary Balance Sheet.
(iii) In the event the Sellers object to the
Estimated Preliminary Balance Sheet or the Estimated
Preliminary Amounts (the "Preliminary Disputed Items"), the
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Sellers shall send a written notice within one Business Day of
its receipt of the Estimated Preliminary Balance Sheet to the
Buyer specifying the Sellers' objections in reasonable detail
and the basis therefor (the "Preliminary Objection Notice").
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The Sellers and the Buyer shall in good faith seek to resolve
the Sellers' objections. For purposes of determining the
adjustments, if any, specified in Section 2.4(a) of this
Agreement, (A) the Estimated Preliminary Balance Sheet shall
become the "Preliminary Balance Sheet" only if the Sellers do
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not object to the Estimated Preliminary Balance Sheet or, in
the event the Sellers do object, only after such balance sheet
reflects any Preliminary Disputed Items set forth in the
Preliminary Objection Notice as resolved by the Sellers and
the Buyer, (B) the "Preliminary Net Working Capital Amount"
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shall mean the Estimated Preliminary Net Working Capital
Amount as revised to reflect any Preliminary Disputed Items
set forth in the Preliminary Objection Notice as resolved by
the Sellers and the Buyer, (C) the "Preliminary Deferred
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Maintenance Revenue Amount" shall mean the Estimated Deferred
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Maintenance Revenue Amount as revised to reflect any
Preliminary Disputed Items set forth in the Preliminary
Objection Notice as resolved by the Sellers and the Buyer, (D)
the "Preliminary Deferred Turret Revenue Amount" shall mean
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the Estimated Preliminary Deferred Turret Revenue Amount as
revised to reflect any Preliminary Disputed Items set forth in
the Preliminary Objection Notice as resolved by the Sellers
and the Buyer and (E) the "Preliminary Work-In-Process Amount"
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shall mean the Estimated Preliminary Work-In-Process Amount as
revised to reflect any Preliminary Disputed Items set
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forth in the Preliminary Objection Notice as resolved by the
Sellers and the Buyer. If the Sellers send a
Preliminary Objection Notice and the Sellers and the Buyer
cannot resolve the Preliminary Disputed Items, no adjustments
shall be made under Section 2.4(a). Notwithstanding anything
to the contrary contained in this Agreement, the Sellers'
failure to object to any item contained in the Estimated
Preliminary Balance Sheet or the Estimated Preliminary Amounts
or the Sellers' or the Buyer's agreement to resolve the
Preliminary Disputed Items shall not preclude the Sellers or
the Buyer from taking a contrary position for purposes of
Sections 2.3(c) or (d).
(c) As promptly as practicable following the Closing Date (but
not later than January 31, 2002), the Buyer shall:
(i) prepare, in accordance with GAAP (applied in a
manner consistent with the Reference Balance Sheet as to
principles, policies, methodologies and procedures), except
for the exceptions thereto identified on Schedule 5.4(c), a
combined balance sheet of the Companies and their respective
Subsidiaries as of the close of business on the Closing Date
(the "Estimated Final Balance Sheet"); and
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(ii) deliver to the Sellers a certificate executed by
the Buyer setting forth or attaching the Estimated Final
Balance Sheet and the Buyer's calculation of (A) the amount of
"working capital" (as defined in Section 2.3(f)) of the
Companies and their respective Subsidiaries as of the Closing
Date ("Estimated Final Net Working Capital Amount"), (B) the
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amount of customer advances related to maintenance contracts
of the Companies and their respective Subsidiaries as of the
Closing Date ("Estimated Final Deferred Maintenance Revenue
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Amount"), (C) the amount of customer advances related to
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uncompleted installation contracts of the Companies and their
respective Subsidiaries as of the Closing Date (the "Estimated
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Final Deferred Turret Revenue Amount") and (D) the amount of
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costs incurred on uncompleted installation contracts of the
Companies and their respective Subsidiaries as of the Closing
Date ("Estimated Final Work-In-Process Amount," together with
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the Estimated Final Net Working Capital Amount, the Estimated
Final Deferred Turret Revenue Amount and the Estimated Final
Deferred Maintenance Revenue Amount, the "Estimated Final
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Amounts"), each as derived from the Estimated Final Balance
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Sheet.
(d) The Sellers shall have 20 Business Days following receipt
of the certificate referenced in Section 2.3(c) (the "Review Period")
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in which to review the Estimated Final Balance Sheet and Estimated
Amounts. In connection therewith, the Sellers and their authorized
representatives (including outside accountants) shall have reasonable
access to all relevant books and records and employees of the Companies
and any subsidiaries to the extent required to complete such review. In
the event the Sellers do not object to the contents of the Estimated
Final Balance Sheet and Estimated Final Amounts prior to expiration
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of the Review Period, (i) such balance sheet shall become the
definitive balance sheet of the Companies as of the Closing Date (the
"Final Balance Sheet"), (ii) the Estimated Final Net Working Capital
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Amount shall become the "Final Net Working Capital Amount," (iii) the
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Estimated Deferred Maintenance Revenue Amount shall become the "Final
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Deferred Maintenance Revenue Amount," (iv) the Estimated Final Deferred
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Turret Revenue Amount shall become the "Final Deferred Turret Revenue
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Amount" and (v) the Estimated Final Work-In-Process Amount shall become
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the "Final Work-In-Process Amount," each for the purposes of
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determining the adjustments (if any) specified in Sections 2.4(b), (c)
and (d) of this Agreement. In the event the Sellers object to the
Estimated Final Balance Sheet and any or all of the Estimated Final
Amounts, the Sellers shall send a written notice to the Buyer
specifying its objections in reasonable detail and the basis therefor,
prior to expiration of the Review Period ("Objection Notice"). During
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the 10 Business Day period following the Buyer's receipt of the
Objection Notice (the "Resolution Period"), the Buyer and the Sellers
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shall attempt to resolve the differences specified in the Objection
Notice and any resolution by them (evidenced in writing) of such
differences shall be final, binding and conclusive.
(e) If at the conclusion of the Resolution Period any amounts
remain in dispute, then the amounts so in dispute (the "Disputed
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Items") shall be submitted to a firm of independent public accountants
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(the "Arbitrator") mutually selected by the Sellers and the Buyer
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within 5 Business Days after the expiration of the Resolution Period.
The Arbitrator shall determine and resolve, by independent review, the
Disputed Items, in accordance with GAAP (applied in a manner consistent
with the Reference Balance Sheet as to principles, policies,
methodologies and procedures), except for the exceptions identified on
Schedule 5.4(c). The Arbitrator's determination shall be made within 15
Business Days of its selection, shall be set forth in a written
statement delivered to the Sellers and the Buyer and shall be final,
binding and conclusive on the parties hereto. The Estimated Final
Balance Sheet and the Estimated Final Amounts shall be adjusted to
reflect all agreed upon changes and the resolution of all Disputed
Items by the Arbitrator. The Estimated Final Balance Sheet, as so
adjusted, shall become the Final Balance Sheet; the Estimated Final Net
Working Capital Amount, as so adjusted, shall be the "Final Net Working
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Capital Amount;" the Estimated Final Deferred Maintenance Revenue
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Amount, as so adjusted, shall become the "Final Deferred Maintenance
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Revenue Amount;" and the Estimated Final Deferred Turret Revenue
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Amount, as so adjusted, shall become the "Final Deferred Turret Revenue
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Amount" and Estimated Final Work-In-Process, as so adjusted, shall
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become the "Final Work-In-Process Amount," each for the purposes of
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determining the adjustments (if any) specified in Sections 2.4(b), (c)
or (d). All fees and expenses of the Arbitrator shall be paid one-half
by Buyer and one-half by the Sellers.
(f) For purposes of Sections 2.3 and 2.4, the amount of
"working capital" of the Companies and their respective Subsidiaries as
of any point of time shall mean (A) the combined total current assets
(excluding Cash Balance, intercompany assets, deferred tax assets and
costs incurred on uncompleted
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installation contracts) of the Companies and their Subsidiaries as of
such point in time minus (B) the combined total current liabilities
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(excluding intercompany liabilities, deferred tax liabilities and
customer advances related to uncompleted installation contracts and
maintenance contracts) of the Companies and their Subsidiaries as of
such point in time; in each case, calculated in a manner consistent
with the Reference Balance Sheet as to principles, policies,
methodologies and procedures.
SECTION 2.4. Adjustments. (a) On January 3, 2002:
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(i) the Buyer shall pay to the Sellers, by wire
transfer of immediately available funds to such bank accounts
of the Sellers as the Sellers shall designate in writing to
the Buyer, an amount equal to the excess, if any, of the
Preliminary Net Working Capital Amount over the "working
capital" of the Companies and their Subsidiaries as of the
date of the Reference Balance Sheet plus $6,795,000 (the
"Reference Net Working Capital Amount") (such payment, the
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"Initial Working Capital Upward Adjustment").
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(ii) Sellers shall pay to the Buyer, by wire transfer
of immediately available funds to such bank accounts of the
Buyer as the Buyer shall designate in writing to the Sellers,
an amount equal to the excess, if any, of the Reference Net
Working Capital Amount over the Preliminary Net Working
Capital Amount (such payment, the "Initial Working Capital
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Downward Adjustment").
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(iii) if the Preliminary Deferred Maintenance Revenue
Amount exceeds the amount of customer advances related to
maintenance services of the Companies and their respective
Subsidiaries as of the date of the Reference Balance Sheet
(the "Reference Maintenance Amount"), the Sellers shall pay to
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the Buyer, by wire transfer of immediately available funds to
such bank account of the Buyer as the Buyer shall designate in
writing to the Sellers, an amount equal such excess (such
payment, the "Preliminary Deferred Maintenance Revenue
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Adjustment").
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(iv) if the amount of the Preliminary Deferred Turret
Revenue Amount less the Preliminary Work-In-Process Amount
exceeds an amount equal to (A) the customer advances related
to installation services as of the date of the Reference
Balance Sheet less (B) the costs incurred on uncompleted
installation contracts of the Companies and their respective
Subsidiaries as reflected in the Reference Balance Sheet plus
(C) $11,049,000 (such amount, the "Reference Installation
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Amount"), then the Sellers shall pay to the Buyer, by wire
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transfer of immediately available funds to such bank accounts
of the Buyer, as the Buyer shall designate in writing to the
Sellers, an amount equal to such excess (such payment, the
"Preliminary Deferred Turret Revenue Adjustment").
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(v) if the amount of the Reference Installation
Amount exceeds the Preliminary Deferred Turret Revenue Amount
less the Preliminary Work-In-Process Amount, then the Buyer
shall pay to the Sellers by wire transfer or immediately
available funds to such bank accounts of the Sellers, as the
Sellers shall designate in writing to the Buyer, an amount
equal to such excess (such payment, the "Preliminary Deferred
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Turret Revenue Negative Adjustment").
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(b) Promptly after the determination of the Final Net Working
Capital Amount, Final Deferred Maintenance Revenue Amount, Final
Deferred Turret Revenue Amount and Final Work-In-Process Amount, each
pursuant to Section 2.3:
(i) if the sum of (A) the Final Net Working Capital
Amount and (B) the Initial Working Capital Downward
Adjustment, if any, exceeds the sum of (C) the Reference Net
Working Capital Amount and (D) the Initial Working Capital
Upward Adjustment, if any, then the Buyer shall pay to the
Sellers, by wire transfer of immediately available funds to
such bank accounts of the Sellers as the Sellers shall
designate in writing to the Buyer, an aggregate amount equal
to the excess of the sum of (v) the Final Net Working Capital
Amount and (w) the Initial Working Capital Downward
Adjustment, if any, over the sum of (x) the Reference Net
Working Capital Amount and (y) the Initial Working Capital
Upward Adjustment, if applicable, plus interest on such excess
from the Closing Date to the date of payment thereof at the
Agreed Rate; or
(ii) if the sum of (A) the Final Net Working Capital
Amount and (B) the Initial Working Capital Downward
Adjustment, if any, is less than the sum of (C) the Reference
Net Working Capital Amount and (D) the Initial Working Capital
Upward Adjustment, if any, the Sellers shall pay to the Buyer,
by wire transfer of immediately available funds to such bank
account of the Buyer as the Buyer shall designate in writing
to the Sellers, an aggregate amount equal to the sum of (v)
the Reference Net Working Capital Amount and (w) the Initial
Working Capital Upward Adjustment, if any, less the sum of (x)
the Final Net Working Capital Amount and (y) the Initial
Working Capital Downward Adjustment, if any, plus interest on
such amount from the Closing Date to the date of payment
thereof at the Agreed Rate.
(iii) for avoidance of doubt, Sections 2.4(a)(i) and
(ii) and 2.4(b)(i) and (ii) are intended to work in
conjunction with Section 7.8(e) to avoid duplication of
payments and underpayments. To illustrate, the amount of the
account receivable relating to an undeposited check shall not
be included in "working capital" as the Sellers received the
benefit of such check under Section 7.8 and the amount of the
account payable relating to a check written by an IPC Entity
which has not been deposited by the payee thereof shall be
reduced by the amount of such check for the
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purposes of calculating "working capital" as the Sellers did
not receive the cash supporting that check under Section 7.8.
(c) If the Final Deferred Maintenance Revenue Amount exceeds
the sum of (A) the Reference Maintenance Amount and (B) the Preliminary
Deferred Maintenance Revenue Adjustment, if any, the Sellers shall pay
to the Buyer, by wire transfer of immediately available funds to such
bank account of the Buyer as the Buyer shall designate in writing to
the Sellers, an aggregate amount equal to such excess (such payment,
the "Final Deferred Maintenance Revenue Adjustment"), plus interest on
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such amount from the Closing Date to the date of payment thereof at the
Agreed Rate; provided that, if (and only if) there was a Preliminary
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Deferred Maintenance Revenue Adjustment and there is no Final Deferred
Maintenance Revenue Adjustment and the Final Deferred Maintenance
Revenue Amount is less than the sum of (x) the Preliminary Deferred
Maintenance Revenue Adjustment and (y) the Reference Maintenance
Amount, the Buyer shall pay to the Sellers, by wire transfer of
immediately available funds to such bank amounts of the Sellers, as the
Sellers shall designate in writing to the Buyer, an amount equal to the
excess of the sum of (1) the Preliminary Deferred Maintenance Revenue
Adjustment and (2) the Reference Maintenance Amount over the Final
Deferred Maintenance Revenue Amount, plus interest on such amount from
the Closing Date to the date of payment thereof at the Agreed Rate;
provided, further, that in no event shall the Buyer make any payments
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pursuant to the immediately preceding proviso in amounts in excess of
the Preliminary Deferred Maintenance Revenue Adjustment.
(d) If the amount of the Final Deferred Turret Revenue Amount
less the Final Work-In-Process Amount exceeds (A) the sum of (1) the
Reference Installation Amount and (2) the Preliminary Deferred Turret
Revenue Adjustment, if any, less (B) the Preliminary Deferred Turret
Revenue Negative Adjustment, if any, then the Sellers shall pay to the
Buyer, by wire transfer of immediately available funds to such bank
accounts of the Buyer, as the Buyer shall designate in writing to the
Sellers, an aggregate amount equal to such excess (the "Final Deferred
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Turret Revenue Adjustment"), plus interest on such amount from the
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Closing Date to the date of payment thereof at the Agreed Rate;
(e) If the Final Deferred Turret Revenue Amount less the Final
Work-In-Process Amount plus the Preliminary Deferred Turret Revenue
Negative Adjustment, if any, is less than the sum of (x) the
Preliminary Deferred Turret Revenue Adjustment, if any, and (y) the
Reference Installation Amount, the Buyer shall pay to the Sellers, by
wire transfer of immediately available funds to such bank amounts of
the Sellers, as the Sellers shall designate in writing to the Buyer, an
amount equal to the excess of the sum of (1) the Preliminary Deferred
Turret Revenue Adjustment, if any, (2) the Reference Installation
Amount over the Final Deferred Turret Revenue Amount and (3) the
Preliminary Deferred Turret Revenue Negative Adjustment, if any, plus
interest on such amount from the Closing Date to the date of payment
thereof at the Agreed Rate; provided, further, that in no event shall
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the Buyer make any payments pursuant to the immediately preceding
proviso in amounts in excess of (A) the Preliminary
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Deferred Turret Revenue Adjustment, if any, plus (B)$11,049,000 less
(C) the Preliminary Deferred Turret Revenue Negative Adjustment, if
any.
(f) The payments made pursuant to this Section 2.4 shall be
allocated among the Shares and the Assets in the same proportion as the
Purchase Price (prior to the adjustments under this Section 2.4 or the
deferments under Section 3.5) was allocated among the Shares and the
Assets on the Closing Date."
SECTION 3. Clarification and Amendment of Holdback Provisions.
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(a) It is understood and agreed among the parties to this Amendment that the
flush language appearing after Section 3.2(c)(ii) of the Purchase Agreement
beginning with the text "Holdback of Purchase Price" shall be deemed to be
Section 3.3 of the Purchase Agreement. Section 3.3 shall be amended and restated
in its entirety as follows:
"SECTION 3.3 Holdback of Purchase Price. (a) Notwithstanding
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anything to the contrary in Articles II and III, the Buyer may
withhold from the IPC Inc. Shares Purchase Price payable at
the Closing an amount equal to the sum (such sum, the
"Holdback Amount") of (1) the amount of the liabilities
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(excluding interest) owing under the IPC Guaranteed Debt set
forth in the certificate delivered pursuant to Section 8.1(g)
hereof, (2) the amount of liabilities incurred by the Sellers
and their Affiliates (other than the IPC Entities) in
connection with contracts or other agreements or arrangements
guaranteed by the IPC Contract Guarantees, (3) an amount equal
to the Transfer Penalties as set forth in the certificate
delivered pursuant to Section 8.1(g) hereof and (4) an amount
equal to the the sum of (i) the outstanding cash severance
obligations and (ii) the cost outplacement services for those
employees set forth on Schedule 7.10(k) (the "Severance
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Obligations") as set forth in the certificate delivered
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pursuant to Section 8.1(g) hereof. Concurrent with the
Closing, the Buyer shall deposit an amount equal to the
Holdback Amount in a segregated account in the Buyer's name
with a bank of nationally recognized standing or in a money
market account managed by Xxxxxxx, Xxxxx & Co. or any
Affiliate of Xxxxxxx, Sachs & Co. (the "Holdback Account").
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The Buyer may not withdraw any amount in the Holdback Account
except in accordance with this Section 3.3 or Section 7.23
hereof; provided that the Buyer may make quarterly withdrawals
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from the Holdback Account of interest accrued on any amounts
deposited therein. GC North America acknowledges that it has
no right, title or interest (legal, equitable or beneficial)
in the funds so deposited or any interest accrued thereon.
Upon receipt of evidence reasonably satisfactory to the Buyer
that (i) the IPC Guaranteed Debt in whole or in part has been
paid, discharged or otherwise satisfied by the Sellers or that
the IPC Entities have been fully and unconditionally released
in whole or in part from any such IPC Guaranteed Debt, (ii)
the IPC Contract Guarantees or the contracts guaranteed by the
IPC Contract Guarantees have been terminated in whole or in
part (and, if in whole or in part, all amounts outstanding
relating thereto have been have satisfied), (iii) the UK
Employees have been reimbursed in whole or in part for the
Transfer Penalties, (iv) the
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Severance Obligations have been paid, satisfied or discharged
in whole or in part, or (v) the tax liability set forth on
Schedule 5.11(b) relating to certain New York State taxes (the
"Scheduled Tax Liability") has been paid, discharged or
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otherwise satisfied by the Sellers, the Buyer shall promptly
pay to GC North America an amount equal to (A) the principal
amount of any IPC Guaranteed Debt to the extent paid,
discharged or otherwise satisfied (or, after the Newbridge
Certificate is received by the Buyer, 106% of such principal
amount) or for which a full and unconditional release has been
obtained; (B) the amount of liabilities incurred by the
Sellers or their Affiliates (other than the IPC Entities) in
connection with contracts or other agreements or arrangements
guaranteed by any of the IPC Contract Guarantees to the extent
satisfied in whole or in part, (C) if the UK Employees have
been reimbursed in whole or in part for the Transfer
Penalties, an amount equal to the Transfer Penalties to the
extent reimbursed or (D) if the Severance Obligations have
been paid, satisfied or discharged in whole or in part, the
amount equal to the Severance Obligations to the extent paid,
satisfied or discharged; provided, however, that the Buyer
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shall not be obligated to make any payment under this
Agreement as a result of a payment, discharge or satisfaction
of any of the obligations under this Section 3.3 that does not
occur in accordance with the ordinary course of business of
the payor (collectively, a "Non-Ordinary Course Payoff") until
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91 days after such Non-Ordinary Course Payoff; and provided,
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further, in the event that any Non-Ordinary Course Payoff is
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made within 90 days prior to the commencement of a case under
Title 11 of the United States Code or any other bankruptcy,
liquidation or insolvency proceeding in which GC or any of its
Affiliates that pays, discharges or satisfies such
Non-Ordinary Course Payoff is a debtor, the Buyer shall not be
obligated to make any payment to GC North America under this
Agreement for any obligation of the type for which a
Non-Ordinary Course Payoff was made unless and until a court
of competent jurisdiction has determined by a final
non-appealable order that such Non-Ordinary Course Payment
cannot be avoided, reversed or recovered as a preference or
for any other reason by the bankruptcy estate, debtor in
possession, trustee, liquidator or receiver in connection with
such bankruptcy, liquidation or insolvency proceeding,
provided, further, that if the Scheduled Tax Liability has not
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been paid, discharged or otherwise satisfied in full or the
Newbridge Certificate has not been received by the Buyer, the
Buyer shall not be obligated to pay any amount to GC North
America pursuant to this Section 3.3 until the amounts
described in (i) through (v) in the immediately preceding
sentence exceed an amount equal to the sum of the Scheduled
Tax Liability and any additional interest accrued thereon and
$3,500,000 (the "Newbridge Amount"); provided, further, that
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at such time as the Scheduled Tax Liability and any additional
interest accrued thereon is paid, discharged or otherwise
satisfied by the Sellers or the Newbridge Certificate has been
received by Buyer, any amount not previously paid pursuant to
the prior proviso but would have been paid had the Scheduled
Tax Liability and any additional interest accrued thereon been
paid,
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discharged or otherwise satisfied by the Sellers or, in the
case of the Newbridge Amount, the Newbridge Certificate had
been received, as the case may be, shall be paid to GC North
America. In the event that the Buyer or any of its Affiliates
makes any payment to GC North America pursuant to this Section
3.3 or any third party receives any amounts from the Buyer or
any of its Affiliates with respect to the Scheduled Tax
Liability, the IPC Guaranteed Debt or the IPC Contract
Guarantees, the Buyer may withdraw funds from the Holdback
Account in an amount equal to the amount so paid or collected.
The Buyer shall only be required to make payments to GC North
America pursuant to this Section 3 on a monthly basis. The
Sellers shall use reasonable commercial efforts to receive a
certificate from Newbridge Financial Services that if IPC Inc.
was required to honor its guarantee of the IPC Guaranteed Debt
that IPC Inc. would have the right to prepay the amounts owing
under the guarantee without any premium in excess of what is
required to be paid under the IPC Guaranteed Debt.
(b) Notwithstanding anything to the contrary
contained in this Agreement, neither the Buyer nor any of its
Affiliates shall have any obligation to pay the Sellers any
portion of the IPC Inc. Shares Purchase Price deferred at the
Closing to the extent that the Buyer or any of its Affiliates
pays any third party any amounts with respect to the Scheduled
Tax Liability, the IPC Guaranteed Debt, the IPC Contract
Guarantees, the Severance Obligations or the Transfer
Penalties.
(c) Notwithstanding anything to the contrary in this
Agreement, it is understood and agreed among the parties to
this Agreement that the IPC Guaranteed Debt does not include
amounts (other than fees and expenses) under (i) that certain
Letter of Credit issued by First Union National Bank for the
benefit of Newbridge Financial Services, dated June 12, 2000,
in the amount of $1,250,000, (ii) that certain Letter of
Credit issued by First Union National Bank for the benefit of
Newbridge Financial Services, dated June 12, 2000, in the
amount of $1,000,000, (iii) that certain Letter of Credit
issued by First Union National Bank for the benefit of
Newbridge Financial Services, dated June 12, 2000, in the
amount of $2,100,000 and (iv) that certain Letter of Credit
issued by First Union National Bank for the benefit of
Newbridge Financial Services, dated June 12, 2000, in the
amount of $2,400,000 only to the extent that such letters of
credit collateralize obligations that have already been taken
into account in calculating the Holdback Amount."
SECTION 4. Amendment to Section 5.4 of the Purchase Agreement.
---------- --------------------------------------------------
The following is hereby inserted into the Purchase Agreement as Section 5.4(e):
"For purposes of this Agreement, when the term
"Subsidiaries" is used in connection with the Financial
Statements and the Audited Financial Statements and the
various balance sheets referred to in and calculations
-10-
required by Sections 2.3 and 2.4, it shall also take into
account the Assets as if they were owned by a Subsidiary."
SECTION 5. Amendment to Section 5.10 of the Purchase
---------- -----------------------------------------
Agreement. Section 5.10(a) of the Purchase Agreement is hereby amended as
---------
follows:
The words "Closing Date" in the last sentence of Section
5.10(a) are hereby deleted and replaced with the words "the
date hereof."
SECTION 6. Amendments to Section 7.10 of the Purchase
---------- ------------------------------------------
Agreement. The following are hereby inserted into the Purchase Agreement as
---------
Sections 7.10(j), 7.10(k) and 7.10(l):
"(j) GC U.K. Pension Plan. (i) GC shall cause all IPC
--------------------
Employees working in the United Kingdom (the "UK Employees")
------------
who participate, immediately prior to the Closing Date, in the
pension plan maintained for such employees by GC or any of its
Affiliates (the "UK Pension Scheme") to become fully vested,
-----------------
as of the Closing Date, in all employee and employer
contributions contributed by GC or any of its Affiliate to the
UK Pension Scheme on behalf of the UK Employees.
(ii) GC shall, and shall cause its
Affiliates to, honor all agreements and arrangements in
effect as of the Closing Date to make monthly
contributions through the balance of a five-year period
(ending in 2006) to the UK Pension Scheme on behalf of
the UK Employees who participate, immediately prior to
the Closing Date, in the UK Pension Scheme, in order to
reimburse the UK Employees for the penalties imposed
thereon in respect of the transfer of such employees'
pension account balances from the Scottish Life pension
fund to the UK Pension Scheme (the "Transfer
--------
Penalties"), in which contributions the UK Employees
---------
shall be fully vested at all times, as a result of
which, at the end of such five-year period, the UK
Employees shall be fully reimbursed for such Transfer
Penalties.
(k) Severance Obligations. GC shall, or shall cause
---------------------
its Affiliates, to assume all agreements and obligations of
any IPC Entity and shall be solely responsible for any
liability in respect of, including liabilities in connection
with the termination of employment of, those employees set
forth on Schedule 7.10(k) hereto and any other employees not
listed on Schedule 7.10(g) and Sellers shall indemnify and
hold harmless the Buyer and its Affiliates and their
successors and assigns from any loss, liability, third-party
claim, damage or expense arising out of or in connection with
the foregoing and any agreements and obligations with respect
thereto.
(l) Employee Leasing. Notwithstanding anything set
----------------
forth in this Section 7.10 to the contrary, the IPC Employees
set forth on Schedule 7.10(l) (the "Leased Employees") shall,
----------------
as of the Closing Date, continue to be employed by the entity
that, immediately prior to the Closing, employs such Leased
Employee,
-11-
shall remain on such entity's payroll and shall continue to
participate in the benefit plans in which they participate
immediately prior to the Closing. Thereafter the Sellers
shall, or shall cause its Affiliates, to make the services of
the Leased Employees available to the Buyer and the IPC
Entities, until such time as the Buyer has established payroll
procedures and mechanics necessary for administeringpayroll
for the Leased Employees. The Buyer agrees to use its
commercially reasonable efforts to establish, as soon as
practicable after the Closing Date, such payroll procedures
and mechanics necessary for administering the payroll for the
Leased Employees, at which time, the Leased Employees shall
become employees of the applicable IPC Entities (or Buyer
entities) and the Sellers shall cease to have any obligation
or liability with respect to the Leased Employees (except as
otherwise expressly provided in this Agreement). The Buyer
agrees to pay all costs and expenses associated with the
leasing of the Leased Employees and the Sellers' continued
administration of such the Leased Employees payroll, in
accordance with the terms of the Network and Transition
Services Agreement. In addition, the Buyer shall indemnify and
hold harmless the Sellers and its successors and assigns from
any loss, liability, employee or other third-party claim,
damage or expense arising out of or in connection with the
Leased Employees and the leasing arrangement described in this
Section 7.10(l)."
SECTION 7. Addition of New Section 7.23. The following is
---------- ----------------------------
hereby inserted into the Purchase Agreement as Section 7.23:
"SECTION 7.23 Worship Street Obligations. (a) GC and its
--------------------------
Affiliates shall use their reasonable best efforts (x) to
obtain the consent of the landlord of the Worship Street Lease
and any other documents required under applicable law
necessary to assign the portion of the premises covered by
Worship Street Leases that are used at the time of the Closing
by GC or any of its Affiliates (other than the IPC Entities)
(the "GC Premises") to GC (or an Affiliate of GC that is
-----------
reasonably acceptable to Buyer), and (y) to fully release the
Buyer and its Affiliates from any and all liabilities and
obligations under the Worship Street Leases as it relates to
the GC Premises (collectively, the "Consent and Release"). GC
-------------------
hereby agrees to enter, or cause an Affiliate reasonably
acceptable to Buyer to enter, into a sublease for the GC
Premises as soon as possible after the Closing (the
"Sublease") (and obtain all necessary consents and other
--------
permissions with respect thereto). The Sublease shall contain
terms and provisions customary for subleases of its type and
such terms and provisions shall be negotiated in good faith by
GC and its Affiliates on the one hand and the Buyer and its
Affiliates on the other. Under the terms of the Sublease, GC
or its Affiliate shall pay to Buyer or an Affiliate of Buyer
the following amounts (the "Sublease Amounts"): GC's pro-rata
----------------
share of the rent paid by Buyer or its Affiliates under the
Worship Street Leases and GC's pro-rata share of all other
expenses incurred by Buyer or its Affiliate in connection
therewith (including, but not limited to, maintenance,
security, services and other costs). GC's pro-rata share shall
equal the percent of the total square footage covered by the
Worship Street Leases represented by the GC Premises.
Notwithstanding anything
-12-
contained in this Agreement to the contrary, prior to the
effectiveness of the Sublease, GC agrees to pay, or cause an
Affiliate to pay, to the Buyer or an Affiliate of Buyer under
a license arrangement established hereby (the "License") an
-------
amount equal to the Sublease Amounts. The Sublease Amounts
(whether under the Sublease or the License) shall be paid by
GC or an Affiliate of GC at the time the Buyer or its
Affiliates is required to make payments under the Worship
Street Leases or otherwise. The Sublease shall also require
that, and the License granted hereunder requires, that (x) GC
or its Affiliate be responsible, from time to time as the GC
Premises is vacated by GC or its Affiliates, for any
rehabilitation costs (the "Worship Street Rehabilitation
-----------------------------
Costs") associated with the removal of any equipment and the
-----
restoration of the GC Premises to a condition so that such
premises may be used and rented for general office purposes
(the "Rehabilitation"), and (y) the Buyer or its Affiliates
--------------
use commercially reasonable efforts to mitigate any damages
resulting from a breach of the Sublease or License by GC or
its Affiliates by seeking to sublease the GC Premises to a
third party. For purposes of this Agreement, "Worship Street
--------------
Leases" shall mean that certain lease agreement between Quick
------
Corp. and IPC Inc., dated January 11, 1999, and that certain
lease agreement between Quick Corp. and IPC Inc., dated July
16, 1999, and any amendment or supplements thereto.
(b) In addition to the portion of the IPC Inc. Shares
Purchase Price payable at the Closing withheld pursuant to
Section 3.3, the Buyer may withhold from the IPC Inc. Shares
Purchase Price an additional amount (the "Worship Street
--------------
Holdback Amount') equal to the sum of (i) $2,600,000 (the
----------------
"Worship Street Rent Holdback Amount") and (ii) $600,000 (the
-----------------------------------
"Worship Street Rehabilitation Holdback Amount"). The Worship
---------------------------------------------
Street Holdback Amount shall be deposited into the Holdback
Account, but shall be tracked separately as provided in this
Section 7.23(b) and may not be withdrawn except as
contemplated by this Section 7.23(b). When used herein, the
phrase the "then outstanding amount of the Worship Street
Holdback Amount," "then outstanding amount of the Worship
Street Rent Holdback Amount" or the "then outstanding amount
of the Worship Street Rehabilitation Holdback Amount" shall
mean the original amount of the Worship Street Holdback
Amount, the Worship Street Rent Holdback Account or the
Worship Street Rehabilitation Holdback Amount, as the case may
be, reduced by withdrawals from time to time by the Buyer as
provided herein. The Buyer has the right (at its option) to
invest the Worship Street Holdback Amount in U.K. Sterling or
such other currency as used to make payments under the Worship
Street Leases in lieu of U.S. dollars.
(i) If a subtenant acceptable to the Buyer in
the Buyer's sole discretion shall have been substituted in
place of GC and any of its Affiliates as the subtenants for
the GC Premises (the Buyer agreeing to consider any subtenant
proposed by GC) or GC and its Affiliates obtain a Consent and
Release, the Buyer shall pay to GC North America an amount
equal to the sum of (i) the then outstanding amount of the
Worship Street Rent Holdback Amount and (ii) the then
outstanding amount of the Worship Street Rehabilitation
Holdback Amount
-13-
less any expenses incurred or reasonably expected to be
incurred by the Buyer as Worship Street Rehabilitation Costs.
If only a portion of the GC Premises is subleased or a Consent
and Release is obtained for only a portion of the GC Premises,
the Buyer shall pay to GC North America an amount equal to the
pro-rata portion of the then outstanding amount of the Worship
Street Rent Holdback Amount and the then outstanding amount of
the Worship Street Rehabilitation Holdback Amount (less the
actual amount of expenses incurred or reasonably expected to
be incurred by the Buyer for Worship Street Rehabilitation
Costs) on the basis of square footage of the space subleased
or the space with respect to which the Consent and Release is
obtained as compared to the total square footage of the GC
Premises. Upon making any such payment under this clause (i),
the Buyer may withdraw from the Holdback Account an amount
equal to any such payment (and the Worship Street Rent
Holdback Amount and the Worship Street Rehabilitation Holdback
Amount shall be correspondingly reduced).
(ii) If, at the time a payment is required
to be made by GC or its Affiliate, the then outstanding amount
of the Worship Street Rent Holdback Amount is greater than (or
equal to) the then remaining payments required to be made by
GC or its Affiliates under the Sublease or the License through
the expiration of the term thereof (the "Remaining Payments"),
------------------
the Buyer shall withdraw from the Holdback Account an amount
equal to such payment (but only to the extent the then
outstanding amount of the Worship Street Rent Holdback Amount
after giving effect to such payment would remain greater than
(or equal to) the then Remaining Payments), the Worship Street
Rent Holdback Amount shall be correspondingly reduced and GC
or its Affiliates shall be relieved of making such payment
under the Sublease or the License.
(iii) If the Buyer incurs any Rehabilitation
Costs with respect to the GC Premises, the Buyer may withdraw
from the Holdback Account an amount equal to the lesser of
such costs or the then outstanding Worship Street
Rehabilitation Holdback Amount (and the Worship Street
Rehabilitation Holdback shall be correspondingly reduced).
Following a reasonable time after (x) the expiration of the
Sublease or the License or (y) GC and its Affiliates vacate
the GC Premises in its entirety to permit Buyer to complete
the Rehabilitation, the Buyer shall pay GC North America an
amount equal to the then outstanding amount, if any, of the
Worship Street Rehabilitation Holdback Amount. Upon making any
such payment to GC North America, the Buyer may withdraw from
the Holdback Account an amount equal to such payment.
(iv) To the extent an irrevocable letter of
credit has been issued or a irrevocable guarantee has been
received (in either case from a bank of recognized standing
and each in favor of the Buyer) for any or all of the then
outstanding amount of the Worship Street Holdback Amount and
the terms of that letter of credit or guarantee (x) provides
Buyer with the same economic protection as provided to Buyer
by the Holdback Account as it relates the GC Premises (as
determined by Buyer in its reasonable judgment), and (y) is
for a term that extends at least 180 days past the expiration
of the Worship Street Lease, the Buyer shall pay to GC North
America an amount equal to the amount of the then
-14-
outstanding Worship Street Holdback Amount (or, in the case of
a letter of credit or guarantee of less than the then
outstanding Worship Street Holdback Amount, a proportional
amount of then outstanding amount of the Worship Street
Holdback Amount and the Worship Street Holdback Amount shall
be correspondingly reduced). Upon making any such payment to
GC North America, the Buyer may withdraw an equal amount from
the Holdback Account.
(v) If GC or its applicable Affiliates fails
to make the payments required under the Sublease or the
License, Buyer may evict GC or its Affiliates from the GC
Premises. In addition, to the extent GC does not make any
payment required under the Sublease or the License in a timely
manner whether or not GC has been evicted, Buyer may withdraw
from the Holdback Account an amount equal to the lesser of
such payments or the then outstanding amount of the Worship
Street Rent Holdback Amount (and the Worship Street Rent
Holdback Amount shall be correspondingly reduced). If the
Buyer incurs Worship Street Rehabilitation Costs as a result
of GC vacating of the GC Premises, the Buyer may withdraw from
the Holdback Amount an amount equal to the lesser of the
Worship Street Rehabilitation Costs or the then outstanding
amount of the Worship Street Rehabilitation Holdback Amount
(and the Worship Street Rehabilitation Holdback Amount shall
be correspondingly reduced).
SECTION 8. Amendment to Section 8.1(g) of the Purchase
---------- -------------------------------------------
Agreement. Section 8.1(g) of the Purchase Agreement is hereby amended and
---------
restated as follows:
"The Buyer shall have received a certificate signed
by an authorized officer of GC North America that sets forth the amount
outstanding as of the Closing Date of (i) the IPC Guaranteed Debt, (ii)
liabilities incurred by the Sellers and their Affiliates (other than
the IPC Entities) in connection with contracts or other agreements or
arrangements guaranteed by the IPC Contract Guarantees, (iii) the
Transfer Penalties and (iv) the Severance Obligations."
SECTION 9. Certain Definitions. (a) The definitions of
---------- -------------------
"Additional Net Working Capital," "Arbitrator," "Closing Date Balance Sheet,"
"Closing Date Net Working Capital Amount," "Closing Date Deferred Maintenance
Revenue Amount," "Closing Date Deferred Turret Revenue Amount," "Closing Date
Work-In-Process Amount," "Deferred Maintenance Revenue Adjustment," "Deferred
Turret Revenue Adjustment," "Disputed Items," "Excess Net Working Capital,"
"Objection Notice," "Preliminary Closing Date Balance Sheet," "Preliminary
Amounts," "Preliminary Closing Date Net Working Capital Amount," "Preliminary
Deferred Maintenance Revenue Amount," Preliminary Deferred Turret Revenue
Amount," "Preliminary Work-In-Process Amount," "Purchase Price", "Purchase Price
Adjustment", "Resolution Period" and "Review Period" appearing in Appendix A of
the Purchase Agreement are hereby deleted and the following definitions shall be
inserted in Appendix A of the Purchase Agreement in the proper alphabetical
order:
"Additional Net Working Capital" shall mean the
------------------------------
excess, if any, of the Closing Date Net Working Capital Amount over the
Reference Net Working Capital Amount.
-15-
"Estimated Final Amounts" shall have the meaning set forth in
-----------------------
Section 2.3(b)(ii).
"Estimated Final Balance Sheet" shall have the meaning set forth
-----------------------------
in Section 2.3(b)(i).
"Estimated Final Deferred Maintenance Revenue Amount" shall have
---------------------------------------------------
the meaning set forth in Section 2.3(b)(ii).
"Estimated Final Deferred Turret Revenue Amount" shall have the
----------------------------------------------
meaning set forth in Section 2.3(b)(ii).
"Estimated Final Net Working Capital Amount" shall have the
------------------------------------------
meaning set forth in Section 2.3(b)(ii).
"Estimated Final Work-In-Process Amount" shall have the meaning
--------------------------------------
set forth in Section 2.3(b)(ii).
"Estimated Preliminary Amounts" shall have the meaning set forth
-----------------------------
in Section 2.3(a)(ii).
"Estimated Preliminary Balance Sheet" shall have the meaning set
-----------------------------------
forth in Section 2.3(a)(i).
"Estimated Preliminary Deferred Maintenance Revenue Amount" shall
---------------------------------------------------------
have the meaning set forth in Section 2.3(a)(ii).
"Estimated Preliminary Deferred Turret Revenue Amount" shall have
----------------------------------------------------
the meaning set forth in Section 2.3(a)(ii).
"Estimated Preliminary Net Working Capital Amount" shall have the
------------------------------------------------
meaning set forth in Section 2.3(a)(ii).
"Estimated Preliminary Work-In-Process Amount" shall have the
--------------------------------------------
meaning set forth in Section 2.3(a)(ii).
"Final Balance Sheet" shall have the meaning set forth in Section
-------------------
2.3(c).
"Final Deferred Maintenance Revenue Adjustment" shall have the
---------------------------------------------
meaning set forth in Section 2.4(c).
"Final Deferred Maintenance Revenue Amount" shall have the
-----------------------------------------
meaning set forth in Section 2.3(c).
"Final Deferred Turret Adjustment" shall have the meaning set
--------------------------------
forth in Section 2.4(d).
"Final Deferred Turret Revenue Amount" shall have the meaning set
------------------------------------
forth in Section 2.3(c).
-16-
"Final Net Working Capital Amount" shall have the meaning set
--------------------------------
forth in Section 2.3(c).
"Final Work-In-Process Amount" shall have the meaning set forth
----------------------------
in Section 2.3(c).
"GC Worship Street Occupant" shall have the meaning set forth in
--------------------------
Section 7.23.
"Initial Working Capital Upward Adjustment" shall have the
-----------------------------------------
meaning set forth in Section 2.4(a)(i).
"Initial Working Capital Downward Adjustment" shall have the
-------------------------------------------
meaning set forth in Section 2.4(a)(ii).
"IXNet Partition" shall have the meaning set forth in Section
---------------
7.23.
"Non-Ordinary Course Payoff" shall have the meaning set forth in
--------------------------
Section 3.3(a).
"Objection Notice" shall have the meaning set forth in Section
----------------
2.3(c).
"Preliminary Adjustment Holdback Amount" shall have the meaning
--------------------------------------
set forth in Section 3.3(a).
"Preliminary Balance Sheet" shall have the meaning set forth in
-------------------------
Section 2.3(a)(iii).
"Preliminary Disputed Items" shall have the meaning set forth in
--------------------------
Section 2.3(a)(iii).
"Preliminary Deferred Maintenance Revenue Adjustment" shall have
---------------------------------------------------
the meaning set forth in Section 2.4(a)(iii).
"Preliminary Deferred Maintenance Revenue Amount" shall have the
-----------------------------------------------
meaning set forth in Section 2.3(a)(iii).
"Preliminary Deferred Turret Adjustment" shall have the meaning
--------------------------------------
set forth in Section 2.4(a)(iv).
"Preliminary Deferred Turret Revenue Amount" shall have the
------------------------------------------
meaning set forth in Section 2.3(a)(iii).
"Preliminary Net Working Capital Amount" shall have the meaning
--------------------------------------
set forth in Section 2.3(a)(iii).
"Preliminary Objection Notice" shall have the meaning set forth
----------------------------
in Section 2.3(a)(iii).
-17-
"Preliminary Work-In-Process Amount" shall have the
-----------------------------------
meaning set forth in Section 2.3(a)(iii).
"Purchase Price" shall mean the Assets Purchase Price
---------------
plus the Shares Purchase Price (as may be adjusted or deferred pursuant to
Sections 2.4 and/or 3.3 hereof).
"Reference Installation Amount" shall have the meaning
------------------------------
set forth in Section 2.4(a)(iv).
"Reference Maintenance Amount" shall have the meaning set
-----------------------------
forth in Section 2.4(a)(iii).
"Resolution Period" shall have the meaning set forth in
------------------
Section 2.3(c).
"Review Period" shall have the meaning set forth in
--------------
Section 2.3(c).
"Severance Obligations" shall have the meaning set forth
---------------------
in Section 7.10(k).
"Sublease" shall have the meaning set forth in Section
--------
7.23.
"Transfer Penalties" shall have the meaning set forth in
------------------
Section 7.10(j).
"UK Employees" shall have the meaning set forth in
------------
Section 7.10(j).
"UK Pension Scheme" shall have the meaning set forth in
-----------------
Section 7.10(j).
"Worship Street Holdback Amount" shall have the meaning
------------------------------
set forth in Section 7.23.
"Worship Street Leases" shall have the meaning set forth
---------------------
in Section 7.23.
"Worship Street Premises" shall have the meaning set
-----------------------
forth in Section 7.23.
"Worship Street Rehabilitation Costs" shall have the
-----------------------------------
meaning set forth in Section 7.23.
"Worship Street Rehabilitation Holdback Amount" shall
---------------------------------------------
have the meaning set forth in Section 7.23.
"Worship Street Rent Holdback Amount" shall have the
-----------------------------------
meaning set forth in Section 7.23.
"(b) The definition of "EBITDA" set forth in Appendix A to the
Purchase Agreement shall be amended to (i) delete the word "plus" which appears
after the words "restructuring charges" and (ii) substitute the word "plus" in
lieu of the word "and" which appears after the word "Refund" and shall be
restated in its entirety as follows:
-18-
"`EBITDA' shall mean (i) net income plus (ii) interest expense,
------
net plus (iii) income tax provision and less the income tax
benefit plus (iv) depreciation and amortization less (v)
extraordinary loss on senior notes plus (vi) merger costs related
to the acquisition of the IPC Entities by GC plus (vii)
restructuring charges less (viii) Dividend Income-UK Tax Refund
plus (ix) expenses incurred by the IPC Entities in this
transaction."
SECTION 10. Certain Section References. (a) Section references in
----------- --------------------------
the Purchase Agreement (other than those section references contained in
Sections 2.3 and 2.4) listed below in the left-hand column shall be deemed to be
references to the section references listed below in the right hand column:
Original Section Reference Amended Section Reference
-------------------------- -------------------------
Section 2.3(a) ..................... Section 2.3(b)
Section 2.3(a)(i) .................. Section 2.3(b)(i)
Section 2.3(a)(ii) ................. Section 2.3(b)(ii)
Section 2.3(b) ..................... Section 2.3(c)
Section 2.3(c) ..................... Section 2.3(d)
Section 2.3(d) ..................... Section 2.3(e)
Section 2.4(a) ..................... Section 2.4(c)
Section 2.4(a)(i) .................. Section 2.4(c)(i)
Section 2.4(a)(ii) ................. Section 2.4(c)(ii)
Section 2.4(b) ..................... Section 2.4(d)
Section 2.4(c) ..................... Section 2.4(e)
Section 2.4(d) ..................... Section 2.4(f)
(b) It is understood and agreed among the parties to this
Amendment that the flush language appearing after Section 9.3(a)(ii) of the
Purchase Agreement beginning with the text "Notwithstanding anything to the
contrary" shall be deemed to be Section 9.3(a)(iii) of the Purchase Agreement.
SECTION 11. Amendment to Section 12.9 of the Purchase Agreement.
----------- ---------------------------------------------------
Section 12.9 of the Purchase Agreement shall be amended to insert the words "(as
such Purchase Price may be adjusted or deferred pursuant to Sections 2.4 and/or
3.3 hereof)" after the words "Purchase Price" in the first sentence of Section
12.9 of the Purchase Agreement and shall be restated in its entirety as follows:
"SECTION 12.9. Obligations of GS Funds. Notwithstanding anything
------------- -----------------------
contained in this Agreement to the contrary, the GS Funds shall
be severally liable for the payment of the Purchase Price (as
such Purchase Price may be adjusted or deferred pursuant to
Sections 2.4 and/or 3.3 hereof) in the percentages opposite the
name of each such GS Fund on the signature page hereto. Other
than such liability, no GS Fund shall have any other obligation
or liability under this Agreement or in connection with the
transactions contemplated hereby."
SECTION 12. Waiver of Non-Compliance of Sections 5.5, 7.1 and
-------------------------------------------------------------
8.1(a) of the Purchase Agreement. The Buyer hereby waives any non-compliance by
--------------------------------
the Sellers and their
-19-
Affiliates of Sections 5.5, 5.10(a), 5.10(e), 7.1 and 8.1(a) of the Purchase
Agreement in respect of any of the termination of employment of employees set
forth on Schedule 7.10(k) hereto.
SECTION 13. Miscellaneous. (a) Except as otherwise expressly
----------- -------------
modified by this Amendment, the Purchase Agreement is and shall continue to be
in full force and effect in accordance with its terms.
(b) This Amendment may be executed by the parties hereto on one
or more counterparts, and all of such counterparts shall be deemed to constitute
one and the same instrument. This Amendment may be delivered by facsimile
transmission of the relevant signature pages hereof.
(c) The parties hereby agree to restate the Purchase Agreement in
its entirety as amended hereby.
(d) THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
-20-
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
to be duly executed as of the day and year first above written.
GLOBAL CROSSING LTD.
By: /s/ X.X. Xxxx
-----------------------
Name: X.X. Xxxx
Title:
ASIA GLOBAL CROSSING LTD.
By: /s/ Xxxxx Xxxxx
-----------------------
Name: Xxxxx Xxxxx
Title:
GLOBAL CROSSING NORTH AMERICAN
HOLDINGS INC.
By: /s/ X.X. Xxxx
-----------------------
Name: X.X. Xxxx
Title:
SATURN GLOBAL NETWORK SERVICES
HOLDINGS LIMITED
By: /s/ Xxxxx Xxxxx
-----------------------
Name: Xxxxx Xxxxx
Title:
IXNET HONG KONG LTD.
By: /s/ Xxxxx Xxxxx
-----------------------
Name: Xxxxx Xxxxx
Title:
-00-
XXXX XXXXXX XXXXXXXX (XXXXXXXXX) PTE LTD.
By: /s/ Xxxxx Xxxxx
-------------------------------
Name: Xxxxx Xxxxx
Title:
IPC ACQUISITION CORP.
By: /s/ Xxxxxx Xxxxxxxxx
-------------------------------
Name: Xxxxxx Xxxxxxxxx
Title:
GS CAPITAL PARTNERS 2000, L.P.
By: GS Advisors 2000, L.L.C., its general partner
By: /s/ Xxxxxx Xxxxxxxxx
--------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title:
GS CAPITAL PARTNERS 2000 OFFSHORE, L.P.
By: GS Advisors 2000, L.L.C., its general partner
By: /s/ Xxxxxx Xxxxxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title:
GS CAPITAL PARTNERS 2000 GMBH & CO.
BETEILIGUNGS KG
By: Xxxxxxx Xxxxx Management GP GmbH, its general
partner
By: /s/ Xxxxxx Xxxxxxxxx
--------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title:
-00-
XXXXXX XXXXXX SPECIAL OPPORTUNITIES
FUND 2000, L.P.
By: Bridge Street Special Opportunities 2000
L.L.C., its general partner
By: /s/ Xxxxxx Xxxxxxxxx
----------------------------
Name: Xxxxxx Xxxxxxxxx
Title:
GS CAPITAL PARTNERS 2000 EMPLOYEE FUND, L.P.
By: GS Employee Funds 2000 GP, L.L.C.,
its general partner
By: /s/ Xxxxxx Xxxxxxxxx
----------------------------
Name: Xxxxxx Xxxxxxxxx
Title:
XXXXX XXXXXX XXXX 0000, X.X.
By: Stone Street 2000, L.L.C., its general
partner
By: /s/ Xxxxxx Xxxxxxxxx
----------------------------
Name: Xxxxxx Xxxxxxxxx
Title:
-23-
