Exhibit 4.1
SUPPLEMENTAL INDENTURE
Dated September 10,
2009
among
GC IMPSAT HOLDINGS I PLC,
as Issuer,
the parties named as guarantors
herein,
as Guarantors,
and
WELLS FARGO BANK, NATIONAL
ASSOCIATION,
as Trustee,
to the
INDENTURE
dated February 14,
2007
governing
$225,000,000 Aggregate Principal
Amount of
9.875% Senior Notes due 2017
TABLE OF CONTENTS
|
|
|
|
|
|
ARTICLE I.
|
|
AMENDMENTS TO
THE INDENTURE
|
|
2
|
|
|
|
|
Section 1.01
|
|
Deletion of
Certain Provisions
|
|
2
|
|
|
|
|
ARTICLE II.
|
|
EFFECTIVENESS;
OPERATIVENESS
|
|
3
|
|
|
|
|
Section 2.01
|
|
Effectiveness
|
|
3
|
|
|
|
|
Section 2.02
|
|
Operativeness
|
|
3
|
|
|
|
|
ARTICLE III.
|
|
MISCELLANEOUS
|
|
4
|
|
|
|
|
Section 3.01
|
|
Reference to
and Effect on the Indenture
|
|
4
|
|
|
|
|
Section 3.02
|
|
Integral
Part
|
|
4
|
|
|
|
|
Section 3.03
|
|
Adoption,
Ratification and Confirmation
|
|
4
|
|
|
|
|
Section 3.04
|
|
General
Definitions
|
|
4
|
|
|
|
|
Section 3.05
|
|
Trustee
Disclaimer
|
|
4
|
|
|
|
|
Section 3.06
|
|
Counterparts
|
|
4
|
|
|
|
|
Section 3.07
|
|
Headings
|
|
4
|
|
|
|
|
Section 3.08
|
|
Severability
|
|
4
|
|
|
|
|
Section 3.09
|
|
Benefits of
Supplemental Indenture
|
|
4
|
|
|
|
|
Section 3.10
|
|
Governing
Law
|
|
5
|
|
|
|
|
Section 3.11
|
|
Notices
|
|
5
|
|
|
|
|
Section 3.12
|
|
No Recourse
Against Others
|
|
6
|
SUPPLEMENTAL INDENTURE, dated as of
September 10, 2009 (the “ Supplemental Indenture
”), among GC IMPSAT HOLDINGS I PLC, a public limited company
organized and existing under the laws of England and Wales (the
“ Company ”), the parties named on the signature
page hereto as guarantors (the “ Guarantors ”)
and WELLS FARGO BANK, NATIONAL ASSOCIATION, as trustee (the “
Trustee ”).
RECITALS
WHEREAS, the Company and the
Guarantors heretofore have executed and delivered to the Trustee an
Indenture, dated February 14, 2007 (the “
Indenture ”), providing for the issuance of
$225,000,000 in aggregate principal amount of the Company’s
9.875% Senior Notes due 2017 (the “ Notes
”);
WHEREAS, Section 9.02 of the
Indenture provides that the Company, the Guarantors and the
Trustee, at any time and from time to time, may amend or supplement
the Indenture or the Notes with the consent of the Holders of at
least a majority in principal amount of the Notes then outstanding
(determined in accordance with Section 2.08 of the Indenture),
other than with respect to certain enumerated items which are not
included in the Proposed Amendments (as defined below);
WHEREAS, the Company and the
Guarantors have duly authorized the execution and delivery of this
Supplemental Indenture;
WHEREAS, the Company has offered to
purchase (the “ Tender Offer ”) any and all of
the outstanding Notes upon the terms and subject to the conditions
set forth in the Company’s Offer to Purchase and Consent
Solicitation Statement, dated August 24, 2009 (the “
Statement ”), and the accompanying Letter of
Transmittal and Consent, as the same may be further amended,
supplemented or modified;
WHEREAS, the Tender Offer is
conditioned upon, among other things, the proposed amendments (the
“ Proposed Amendments ”) to the Indenture as
described in the Statement and set forth in Section 1.01 of
this Supplemental Indenture having been executed and delivered,
with the operation of such Proposed Amendments being subject to the
acceptance by the Company of all Notes validly tendered pursuant to
the Tender Offer;
WHEREAS, the Company has received
and delivered to the Trustee the consents from at least a majority
in aggregate principal amount of Notes outstanding (the “
Requisite Consents ”) to effect the Proposed
Amendments under the Indenture;
WHEREAS, all other acts and
proceedings required by law, by the Indenture and by the amended
and restated articles of incorporation and by-laws of the Company
and by the applicable governing documents of each Guarantor to
execute and deliver this Supplemental Indenture, in accordance with
its terms, have been duly done and performed;
NOW, THEREFORE, in consideration of
the premises and the covenants and agreements contained herein, and
for other good and valuable consideration the receipt of which is
hereby acknowledged, and for the equal and proportionate benefit of
the holders of the Notes, the Company, the Guarantors and the
Trustee hereby agree as follows:
ARTICLE I.
AMENDMENTS TO THE
INDENTURE
Section 1.01 Deletion of
Certain Provisions
Pursuant to the terms of the
Statement and the receipt of the Requisite Consents:
(a) the Indenture is hereby amended
to delete each of the following sections, or clauses of sections,
in its entirety and, in the case of each such section or clause,
insert in lieu thereof the phrase “[Intentionally
Omitted]”:
|
|
(1)
|
Section 3.09. Offer to Purchase by
Application of Excess Proceeds;
|
|
|
(2)
|
Section 4.03. Reports;
|
|
|
(3)
|
Section 4.04. Compliance
Certificate;
|
|
|
(5)
|
Section 4.06 Stay, Extension and Usury
Laws;
|
|
|
(6)
|
Section 4.07 Restricted
Payments;
|
|
|
(7)
|
Section 4.08. Dividend and Other Payment
Restrictions Affecting Subsidiaries;
|
|
|
(8)
|
Section 4.09. Incurrence of Additional
Indebtedness;
|
|
|
(9)
|
Section 4.10. Asset Sales;
|
|
|
(10)
|
Section 4.11. Transactions with
Affiliates;
|
|
|
(11)
|
Section 4.12. Liens;
|
|
|
(12)
|
Section 4.13. Conduct of
Business;
|
|
|
(13)
|
Section 4.14. Corporate
Existence;
|
|
|
(14)
|
Section 4.15. Offer to Repurchase upon
Change of Control;
|
|
|
(15)
|
Section 4.17. Payments for
Consent;
|
|
|
(16)
|
Section 4.18. Note Guarantees;
|
|
|
(17)
|
Section 4.19. Designation of Unrestricted
Subsidiaries;
|
|
|
(18)
|
Section 4.22 Listing;
|
|
|
(19)
|
Section 4.23 Notices;
|
2