Exhibit 10.3
SUPPLEMENTAL INDENTURE
S UPPLEMENTAL I NDENTURE (this “ Supplemental Indenture
”), dated as of
,
2009, by and among Primus Telecommunications IHC, Inc., a Delaware
corporation (the “ Issuer ”), the Guarantors (as
defined in the Indenture referred to below) and U.S. Bank National
Association, a national banking association, as Trustee under the
Indenture referred to below (the “ Trustee ”).
Capitalized terms used herein without definition shall have the
meanings assigned to them in the Indenture.
W I T N E S S E T H
WHEREAS, the Issuer and the
Guarantors have heretofore executed and delivered to the Trustee an
indenture, dated as of February 26, 2007, by and among the
Issuers, the Guarantors, and the Trustee (the “
Indenture ”), pursuant to which the Company has issued
$175.3 million aggregate principal amount of the Company’s
14.25% Senior Secured Notes due 2011 (the “ Notes
”);
WHEREAS, the Issuer has implemented
a restructuring of the Notes and the related Claims evidenced
thereby (as that term is defined in section 101(5) of title 11 of
the United States Code) through a confirmed plan of reorganization
pursuant to voluntary bankruptcy cases under chapter 11 of title 11
of the United States Code, 11 U.S.C.
§§ 101-1532 in the United States Bankruptcy Court
for the District of Delaware (the “ Plan ”);
and
WHEREAS, the Plan provides that the
Indenture shall be amended as set forth in this Supplemental
Indenture;
NOW, THEREFORE, the Issuer and the
Guarantors hereby covenant and agree with the Trustee for the equal
and proportionate benefit of the Holders as follows:
ARTICLE 1
AMENDMENT
Section 1.01. Amendment to
Exhibit A . All references in the Indenture to Exhibit A shall
mean the form of Note attached to this Supplemental Indenture as
Exhibit A.
Section 1.02. Amendment to
the Recitals of the Issuer and the Guarantors . The first
paragraph of the Recitals of the Issuer and the Guarantors shall be
deleted and replaced in its entirety with the following:
The Issuer has duly authorized the
creation of an issue of 14.25% Senior Secured Notes Due 2013 (the
“Initial Notes”) and 14.25% Series B Senior Secured
Notes Due 2013 (the “Exchange Notes” and, together with
the Initial Notes, the “Notes”), of substantially the
tenor and amount hereinafter set forth, and to provide therefor the
Issuer has duly authorized the execution and delivery of this
Indenture.
Section 1.03 Amendments to
Section 1.01 .
(a) Section 1.01 is hereby
amended to amend and restate the following definitions in their
entirety:
“ Additional Notes
” means any Notes issued subsequent to the Closing Date
(other than Exchange Notes issued in exchange for Initial Notes and
other than PIK Notes (and any increase in the principal amount
thereof) issued as a result of the payment of PIK Interest) in
accordance with the terms of this Indenture, including
Section 3.01, Section 3.03 and
Section 10.11.
“ Notes ” has the
meaning stated in the first recital of this Indenture and more
particularly means any Notes authenticated and delivered under the
Indenture, including Additional Notes and PIK Notes. For purposes
of this Indenture, the term “Notes” shall include any
Exchange Notes to be issued and exchanged for any Initial Notes
pursuant to the Registration Rights Agreement and this Indenture
and shall include any PIK Notes (and any increase in the principal
amount of any Global Note) issued as a result of the payment of PIK
Interest and, for purposes of this Indenture, (A) all Initial
Notes and Exchange Notes (including, to the extent provided in
clauses (B) and (C), Additional Notes and PIK Notes (or
increase in the principal amount of any Global Note as a result of
the payment of PIK Interest), respectively) shall vote together as
one series of Notes under this Indenture, (B) all Additional
Notes that are of the same series as other Notes shall vote
together with such other Notes as one series of Notes under this
Indenture, and (C) all PIK Notes that are of the same series
as other Notes (or increase in the principal amount of any Global
Note as a result of the payment of PIK Interest) shall vote
together with such other Notes as one series of Notes under this
Indenture.
(b) Section 1.01 is hereby
amended to insert the following definitions in alphabetical
order:
“ Canadian Facility
” means that certain Senior Secured Credit Agreement, dated
as of March 27, 2007, by and among Primus Telecommunications
Canada Inc., 3082833 Nova Scotia Company, the lenders party thereto
from time to time, Group, Holding and Guggenheim Corporate Funding,
LLC, as administrative agent and collateral agent (as may be
amended, restated, supplemented or otherwise modified from time to
time).
“ Cash Interest ”
means interest paid in the form of cash.
“ PIK Interest ”
means interest paid with respect to the Notes in the form of either
increasing the outstanding principal amount of a Global Note or,
with respect to any Note that is not a Global Note, issuing PIK
Notes.
“ PIK Notes ”
means additional Notes issued under this Indenture on the same
terms and conditions as the Notes issued on the Closing Date in
connection with the payment of PIK Interest.
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“ Priority Indebtedness
” means (a) any Indebtedness of any Restricted
Subsidiary of the Issuer and (b) any Indebtedness of any
Restricted Person (including the Notes) which is secured by any
Lien on any of the assets or properties of any character
(including, without limitation, licenses and trademarks) of the
Issuer or any Restricted Person, or on any shares of Capital Stock
or Indebtedness of any Restricted Person; provided, that Priority
Indebtedness shall not include Indebtedness owing by any Restricted
Person to the Issuer or any Subsidiary Guarantor.
(c) Section 1.01 is hereby
amended to amend and restate clause (xii) of the definition of
Permitted Liens in its entirety as follows:
(xii) Liens securing Indebtedness
incurred after
,
2009 [Note: Date of this Supplemental Indenture] to refinance or
replace any secured Indebtedness outstanding on
,
2009 [Note: Date of this Supplemental Indenture] (plus premiums,
accrued interest, and reasonable fees and expenses on or relating
to such secured Indebtedness) that was incurred under clause
(i) of paragraph (b) of Section 10.11; provided that
such Liens do not extend to or cover any property or assets of any
Restricted Person other than the property or assets or, in the case
of accounts receivables and inventories and to the extent covered
by the terms of the Indebtedness being refinanced, properties or
assets of a similar type or category as the property or assets
securing the Indebtedness being refinanced or replaced;
Section 1.04. Amendments to
Section 3.01 .
(a) The fourth paragraph of
Section 3.01 of the Indenture shall be deleted and replaced in
its entirety with the following:
The Initial Notes shall be known as
the “14.25% Senior Secured Notes Due 2013” and the
Exchange Notes shall be known as the “14.25% Series B
Senior Secured Notes Due 2013,” in each case, of the Issuer.
The Stated Maturity of the Notes shall be May 20, 2013, and
the Notes shall bear interest at the rate of 14.25% per annum
from the Issuance Date, or from the most recent Interest Payment
Date to which interest has been paid or duly provided for, payable
semi-annually on May 31 and November 30 in each year,
commencing on May 31, 2007, and at said Stated Maturity, until
the principal thereof is paid or duly provided for.
(b) The second-to-last paragraph of
Section 3.01 of the Indenture shall be deleted and replaced in
its entirety with the following:
The Issuer shall pay interest on the
Notes in cash; provided, however, that prior to the earlier of
(i) the extension of the maturity of or the repayment in full
of the Indebtedness outstanding pursuant to the First Lien Term
Loan Credit Facility and the Canadian Facility or
(ii) June 1, 2011, up to 4.25% per annum
of
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the interest on the Notes may be
paid, at the sole option of the Issuer, as PIK Interest.
With respect to Global Notes only,
if a Holder has given wire instructions to the Issuer, the Issuer
will pay all principal of (and premium and Additional Interest, if
any) and Cash Interest on such Holder’s Notes in accordance
with those instructions. Otherwise, the principal of (and premium
and Additional Interest, if any) and Cash Interest on the Notes
shall be payable at the office or agency of the Issuer maintained
for such purpose in The City of New York, or at such other office
or agency of the Issuer as may be maintained for such purpose;
provided, however, that, at the option of the Issuer, Cash Interest
may be paid by check mailed to addresses of the Persons entitled
thereto as such addresses shall appear on the Note
Register.
(c) There shall be added to the end
of Section 3.01 of the Indenture the following
paragraph:
Notwithstanding anything in this
Indenture to the contrary, in connection with the payment of PIK
Interest, the Issuer is entitled, without the consent of the
Holders (and without regard to any restrictions or limitations set
forth in Section 10.11 hereof), to either increase the
outstanding principal amount of a Global Note or, with respect to
any Note that is not a Global Note, issue PIK Notes.
Section 1.05 Amendment to
Section 3.02 . Section 3.02 of the Indenture is
hereby amended and restated in its entirety as follows:
Denominations. The Notes shall be
issuable only in registered form without coupons and only in
denominations of $1,000 and any integral multiple thereof; provided
that Notes issued to a Holder that certifies that it is an
Accredited Investor on the form set forth as Exhibit C pursuant to
Section 3.07 shall be issuable only in registered form without
coupons and only in denominations of $250,000 and any integral
multiple of $1,000 in excess thereof; provided further that PIK
Notes shall be issuable in registered form without coupons and only
in denominations of $1.00 and any integral multiple
thereof.
Section 1.06 Amendment to
Section 3.03 . The fourth paragraph of Section 3.03
of the Indenture is hereby amended and restated in its entirety as
follows:
At any time and from time to time
after the execution and delivery of this Indenture, the Issuer may
deliver Initial Notes executed by the Issuer to the Trustee for
authentication, together with an Issuer Order for the
authentication and delivery of such Initial Notes directing the
Trustee to authenticate the Notes and certifying that all
conditions precedent to the issuance of Notes contained herein have
been fully complied with, and the Trustee in accordance with such
Issuer Order shall authenticate and deliver such Initial Notes. On
Issuer Order, the Trustee shall authenticate for original issue
Exchange Notes; provided that such Exchange Notes shall be issuable
only upon the valid surrender for cancellation of Initial Notes of
a like aggregate principal amount in accordance with an Exchange
Offer pursuant to the Registration Rights Agreement and an Issuer
Order for the authentication of such securities
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certifying that all conditions precedent to the
issuance have been complied with (including the effectiveness of a
registration statement related thereto). On Issuer Order, the
Trustee shall authenticate for original issue PIK Notes (or
increases in the principal amount of any Global Note) as a result
of the payment of PIK Interest; provided that such PIK Notes (or
increase in the principal amount of any Global Note) as a result of
the payment of PIK Interest shall be issuable upon an Issuer Order
for the authentication of such securities (or increase in the
principal amount of any Global Note) certifying that all conditions
precedent to the issuance have been complied with. In each case,
the Trustee shall be entitled to receive an Officer’s
Certificate and an Opinion of Counsel of the Issuer that it may
reasonably request in connection with such authentication of Notes.
Such order shall specify the amount of Notes to be authenticated or
increased and the date on which the original issue of Initial
Notes, Exchange Notes or PIK Notes (or increases in the principal
amount of any Global Note) are to be authenticated or
increased.
Section 1.07. Amendment to
Section 10.01 . There shall be added to the end of
Section 10.01 of the Indenture the following
sentence:
PIK Interest shall be considered
paid on the date due if the Trustee is directed on or prior to such
date to issue PIK Notes or increase the principal amount of the
Global Note, in each case, in an amount equal to the amount of
applicable PIK Interest.
Section 1.08. Amendment to
Section 10.09 . Section 10.09 of the Indenture is
hereby amended to add the following at the end of such
section:
(d)
At Group’s option, in lieu of complying with the provisions
set forth in Sections 10.09(a), (b) and (c) above, Group
may furnish to the Trustee:
(i) as soon as available, but in any
event within 90 days after the end of each fiscal year of Group, a
copy of the audited consolidated balance sheet of Group as at the
end of such year and the related audited consolidated statements of
income and of cash flows for such year, setting forth in each case
in comparative form the figures as of the end of and for the
previous year, reported on by Deloitte & Touche or other
independent certified public accountants of nationally recognized
standing;
(ii) as soon as available, but in
any event not later than 45 days after the end of each of the first
three quarterly periods of each fiscal year of Group, the unaudited
consolidated balance sheet of Group as at the end of such quarter
and the related unaudited consolidated statements of income and of
cash flows for such quarter and the portion of the fiscal year
through the end of such quarter, setting forth in each case in
comparative form the figures as of the end of and for the
corresponding period in the previous year; and all such financial
statements to be complete and correct in all material respects and
to be prepared in reasonable detail and in accordance with GAAP
applied consistently throughout the periods reflected therein and
with prior periods (except as approved by such accountants or
officer, as the case may be, and disclosed therein);
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(iii) in connection with each
delivery pursuant to clause (ii) above, a certificate by the
Chief Financial Officer of Group certifying that such financial
statements are fairly stated in all material respects (subject to
normal year-end audit adjustments); and
(iv) in addition, for so long as any
Notes remain outstanding, Group shall furnish to the Holders,
beneficial owners of the Notes, and to securities analysts and
prospective investors, upon their request, the information
described above as well as all information required to be delivered
pursuant to Rule 144A(d)(4) under the Securities Act.
Group will distribute such
information and such reports electronically to the Trustee, and
will make them available upon request to any Holder, any beneficial
owner of the Notes, any prospective investor, any securities
analyst and any market maker in the Notes by posting such
information and reports on Intralinks or any comparable password
protected outline data system, which will require a confidentiality
acknowledgement.
Section 1.09. Amendments to
Section 10.10 .
(a) Section 10.10(c)(vii) of
the Indenture is hereby amended and restated in its entirety as
follows:
(vii) that Holders whose Notes are
being purchased only in part will be issued new Notes equal in
principal amount to the unpurchased portion of the Notes
surrendered; provided that each Note purchased and each new Note
issued shall be in a principal amount of $1,000 or integral
multiples thereof; provided further that each PIK Note in
definitive form purchased and each new PIK Note issued shall be in
a principal amount of $1.00 or integral multiples
thereof.
(b) The second paragraph of
Section 10.10(e) of the Indenture is hereby amended and
restated in its entirety as follows:
The Paying Agent promptly shall
mail, to the Holders of Notes so accepted, payment in an amount
equal to the purchase price, and the Trustee promptly shall
authenticate and mail to such Holders a new Note equal in principal
amount of any unpurchased portion of the Notes surrendered;
provided that each Note purchased and each new Note issued shall be
in a principal amount of $1,000 or integral multiples thereof;
provided further that each PIK Note in definitive form purchased
and each new PIK Note in definitive form issued shall be in a
principal amount of $1.00 or integral multiples thereof. The Issuer
will announce publicly the results of the Change of Control Offer
on or as soon as practicable after the Change of Control Payment
Date.
Section 1.10. Amendments to
Section 10.11 .
(a) Section 10.11(a) of the
Indenture is hereby amended and restated in its entirety as
follows:
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(a) Issuer will not, and will not
permit any of the Restricted Persons to, Incur any Indebtedness,
including Acquired Indebtedness (other than Existing Indebtedness
and the Notes issued under the Indenture (other than Additional
Notes)); provided, however, that
(i) the Issuer and any Restricted
Person that is a Guarantor may Incur Indebtedness, including
Acquired Indebtedness but excluding Priority Indebtedness, if
immediately thereafter the ratio (the “Indebtedness to
Consolidated Cash Flow Ratio”) of:
(A) the aggregate principal amount
(or accreted value, as the case may be) of Indebtedness of the
Restricted Persons on a consolidated basis outstanding as of the
Transaction Date to
(B) the Pro Forma Consolidated Cash
Flow of the Restricted Persons for the preceding two full fiscal
quarters multiplied by two, determined on a pro forma basis as if
any such Indebtedness that had been Incurred and the proceeds
thereof had been applied at the beginning of such two fiscal
quarters,
would be greater than zero and less
than 3.5 to 1.0 or, if Group is, at the time of determination, a
Restricted Person, 5.0 to 1.0; and
(ii) the Issuer and any Restricted
Person that is a Guarantor may Incur Priority Indebtedness,
including Acquired Indebtedness, if immediately thereafter the
ratio (the “Priority Indebtedness to Consolidated Cash Flow
Ratio”) of
(A) the aggregate principal amount
(or accreted value, as the case may be) of Priority Indebtedness of
the Restricted Persons on a consolidated basis outstanding as of
the Transaction Date to
(B) the Pro Forma Consolidated Cash
Flow of the Restricted Persons for the preceding two full fiscal
quarters multiplied by two, determined on a pro forma basis as if
any such Indebtedness that had been Incurred and the proceeds
thereof had been applied at the beginning of such two fiscal
quarters,
would be greater than zero and less
than 2.0 to 1.0.
(b)
Clause (iii) of Section 10.11(b) of the Indenture is
hereby amended by inserting the following before the semicolon at
the end of such clause:
and, in the case of any Indebtedness
other than intercompany Indebtedness arising out of the ordinary
course of business intercompany transactions, may not constitute
Priority Indebtedness
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(c) Clause (iv) of
Section 10.11(b) of the Indenture is hereby amended and
restated in its entirety as follows:
(iv) Indebtedness of any Restricted
Person issued in exchange for, or the net proceeds of which are
used to refinance or refund, then outstanding Indebtedness of a
Restricted Person, other than Indebtedness Incurred under clauses
(i), (iii), (v), (viii), (ix) and (x) of this paragraph,
and any refinancings thereof in an amount not to exceed the amount
so refinanced or refunded (plus premiums, accrued interest, and
reasonable fees and expenses); provided that such new Indebtedness
shall only be permitted under this clause (iv) if
(A) in case the Notes are refinanced
in part or the Indebtedness to be refinanced is pari passu with the
Notes or any applicable Guarantee, such new Indebtedness, by its
terms or by the terms of any agreement or instrument pursuant to
which such new Indebtedness is issued or remains outstanding, is
expressly made pari passu with, or subordinate in right of payment
to, the remaining Notes or the applicable Guarantee,
(B) in case the Indebtedness to be
refinanced is subordinated in right of payment to the Notes or any
applicable Guarantee, such new Indebtedness, by its terms or by the
terms of any agreement or instrument pursuant to which such new
Indebtedness is issued or remains outstanding, is made subordinate
expressly in right of payment to the Notes or the applicable
Guarantee at least to the extent that the Indebtedness to be
refinanced is subordinated to the Notes and the applicable
Guarantee,
(C) such new Indebtedness,
determined as of the date of Incurrence of such new Indebtedness,
does not mature prior to the Stated Maturity of the Indebtedness to
be refinanced or refunded, and the Average Life of such new
Indebtedness is at least equal to the remaining Average Life of the
Indebtedness to be refinanced or refunded; and provided further
that in no event may (1) Indebtedness of Parent be refinanced
by means of any Indebtedness of any Restricted Person that is a
Subsidiary of Parent pursuant to this clause (iv) and
(2) Indebtedness of the Issuer be refinanced by means of any
Indebtedness of any Restricted Subsidiary of the Issuer pursuant to
this clause (iv), and
(D) such new Indebtedness may not
constitute Priority Indebtedness except to the extent that, and in
the same manner as, the Indebtedness to be refinanced or refunded
is Priority Indebtedness;
(d) Clause (vi) of
Section 10.11(b) of the Indenture is hereby amended to insert
the following at the end of such clause:
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provided, that proceeds of
Indebtedness of any Subsidiary Guarantor may not be used to defease
any Indebtedness of any Person other than such Subsidiary Guarantor
or another Subsidiary Guarantor;
(e) Clause (vii) of
Section 10.11(b) of the Indenture is hereby amended and
restated in its entirety as follows:
(vii) Acquired Indebtedness not to
exceed $100 million at any one time outstanding; provided that, as
a result of such incurrence,
(A) in the case of Acquired
Indebtedness incurred by any Restricted Person, the Indebtedness to
Consolidated Cash Flow Ratio at the time of the incurrence of such
Acquired Indebtedness and calculated giving pro forma effect to
such incurrence (in accordance with the definition of
“Indebtedness to Consolidated Cash Flow Ratio”) and the
related Asset Acquisition as if the same had occurred at the
beginning of the most recently ended two fiscal quarters, would
have been less than, in the case of Acquired Indebtedness incurred
directly by any Restricted Person, the Indebtedness to Consolidated
Cash Flow Ratio for the same period without giving pro forma effect
to such incurrence and Asset Acquisition; and
(B) in the case of Acquired
Indebtedness that is Priority Indebtedness, the Priority
Indebtedness to Consolidated Cash Flow Ratio at the time of the
incurrence of such Acquired Indebtedness and calculated giving pro
forma effect to such incurrence (in accordance with the definition
of “Priority Indebtedness to Consolidated Cash Flow
Ratio”) and the related Asset Acquisition as if the same had
occurred at the beginning of the most recently ended two fiscal
quarters, would have been less than the Priority Indebtedness to
Consolidated Cash Flow Ratio for the same period without giving pro
forma effect to such incurrence and Asset Acquisition;
(f) Clause (ix) of
Section 10.11(b) of the Indenture is hereby amended and
restated in its entirety as follows:
(ix) Indebtedness (other than
Priority Indebtedness) of any Restricted Person not otherwise
permitted hereunder in an aggregate principal amount which, when
aggregated with the principal amount of all other Indebtedness then
outstanding and incurred by any Res
