FORM OF SUPPLEMENTAL INDENTURE
Exhibit 2.1
FORM OF SUPPLEMENTAL INDENTURE
SUPPLEMENTAL INDENTURE (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.
“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. Insertion of Section 1.15. A new Section 1.15 is inserted to provide as follows:
Notwithstanding anything herein to the contrary and to the extent not prohibited by the Trust Indenture Act of 1939, the right to receive payments under this Agreement by the Second Lien Collateral Agent or the Holders and the lien and security interest granted to the Second Lien Collateral Agent pursuant to the Collateral Agreement and the exercise of any right or remedy by the Second Lien Collateral Agent or the Holders hereunder or thereunder are subject to the provisions of the Intercreditor Agreement and the lien and payment subordination provisions contained therein, among Parent, the Company, The Bank of New York Mellon (as successor to Lehman Commercial Paper Inc.), as First Lien Collateral Agent, and U.S. Bank National Association, as Second Lien Collateral Agent, and certain other persons party or that may become party thereto from time to time. In the event of any conflict between the terms of the Intercreditor Agreement and this Agreement or the Collateral Agreement, the terms of the Intercreditor Agreement shall govern and control.
Section 1.05. 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 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 1.06 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 1.07 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 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 1.08. 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 1.09. 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);
(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 1.10. 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 1.11. Amendments to Section 10.11.
(a) Section 10.11(a) of the Indenture is hereby amended and restated in its entirety as follows:
(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
(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:
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 Restricted Person pursuant to this clause (ix) or clause (xi) below, does not exceed $200 million at any one time outstanding;
(g) Clause (x) of Section 10.11(b) of the Indenture is hereby amended by deleting the period at the end of such clause and substituting “; and” in lieu thereof.
(h) Section 10.11(b) of the Indenture is hereby amended by inserting the following new clause (xi):
(xi) Indebtedness of the Issuer and the Subsidiary Guarantors in respect of the Notes (and guarantees thereof), whether issued prior to or after , 2009 [Note: the date of this Supplemental Indenture], in an aggregate principal amount outstanding, when combined with any outstanding principal amount of Indebtedness issued under clause (ix) above, not to exceed $200,000,000.
Section 1.12. Amendments to Section 10.17.
(a) Section 10.17(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 in definitive form issued shall be in a principal amount of $1.00 or integral multiples thereof.
(b) The second to the last paragraph of Section 10.17 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 shall upon Issuer Order promptly authenticate and mail to such Holders a new Note equal in principal amount to any unpurchased portion of the Note 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 publicly announce the results of the Excess Proceeds Offer as soon as practicable after the Excess Proceeds Payment Date. For purposes of this Section 10.17, the Trustee shall act as the Paying Agent.
Section 1.13. Amendment to Section 11.04. The first paragraph of Section 11.04 of the Indenture is hereby amended and restated in its entirety as follows:
Selection by Trustee of Notes to Be Redeemed. If less than all the Notes are to be redeemed, the particular Notes to be redeemed shall be selected not more than 60 days prior to the Redemption Date by the Trustee, from the Outstanding Notes not previously called for redemption, in compliance with the requirements of the principal national securities exchange, if any, on which the Notes are listed, if the Notes are not listed on a national securities exchange, on a pro rata basis, by lot or by such method as the Trustee shall deem fair and appropriate and which may provide for the selection for redemption of portions of the principal of Notes; provided that no such partial redemption shall reduce the portion of the principal amount of a Note not redeemed to less than $1,000; provided further that no such partial redemption shall reduce the portion of the principal amount of a PIK Note in definitive form not redeemed to less than $1.00.
Section 1.14. Amendment to Intercreditor Agreement. On the date hereof, the Collateral Agent, on behalf of the Holders of the Notes, shall enter into the amendment to the Intercreditor Agreement substantially in the form attached as Annex A hereto.
Section 1.15 Amendment to the Collateral Agreement. On the date hereof, the Collateral Agent, on behalf of the Holders of the Notes, shall enter into the amendment to the Collateral Agreement substantially in the form attached as Annex B hereto.
ARTICLE 2
MISCELLANEOUS
Section 2.01 Effect and Operation of Supplemental Indenture. This Supplemental Indenture shall be effective, binding and operative immediately upon its execution by the Issuer, the Guarantors and the Trustee, and thereupon this Supplemental Indenture shall form a part of the Indenture for all purposes, and every Note and Guarantee heretofore or hereafter authenticated and delivered under the Indenture shall be bound hereby. Upon the execution of this Supplemental Indenture by the Issuer, the Guarantors and the Trustee, all Defaults and Events of Default under the Indenture existing prior to the execution of this Supplemental Indenture shall be deemed cured.
Section 2.02 Indenture and Supplemental Indenture Construed Together. This Supplemental Indenture is an indenture supplemental to and in implementation of the Indenture, and the Indenture and this Supplemental Indenture shall henceforth be read and construed together.
Section 2.03 Trust Indenture Act Controls. If any provision of the Indenture, as amended by this Supplemental Indenture, limits, qualifies or conflicts with the duties imposed by TIA § 318(c), the imposed duties shall control.
Section 2.04 GOVERNING LAW. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS SECOND SUPPLEMENTAL INDENTURE WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
Section 2.05 Successors. All covenants and agreements by an Obligor in the Indenture, as amended by this Supplemental Indenture, shall bind its successors and assigns, whether so expressed or not.
Section 2.06 Counterparts. The parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement.
Section 2.07 Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof.
Section 2.08 Severability. In case any provision in the Indenture, as amended by this Supplemental Indenture, or in the Notes shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 2.09 The Trustee. The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made solely by the Company.
[Signature pages follow]
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed and attested, all as of the date first above written.
| PRIMUS TELECOMMUNICATIONS IHC, INC., as the Issuer | ||
| By: |
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| Name: | ||
| Title: | ||
| Guarantors: | ||
| PRIMUS TELECOMMUNICATIONS GROUP, INCORPORATED | ||
| By: |
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| Name: | ||
| Title: | ||
| PRIMUS TELECOMMUNICATIONS HOLDING, INC. | ||
| By: |
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| Name: | ||
| Title: | ||
| PRIMUS TELECOMMUNICATIONS, INC. | ||
| By: |
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| Name: | ||
| Title: | ||
| TRESCOM INTERNATIONAL, INC. | ||
| By: |
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| Name: | ||
| Title: | ||
| LEAST COST ROUTING, INC. | ||
| By: |
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| Name: | ||
| Title: | ||
| TRESCOM U.S.A., INC. | ||
| By: |
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| Name: | ||
| Title: | ||
| IPRIMUS USA, INC. | ||
| By: |
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| Name: | ||
| Title: | ||
| IPRIMUS.COM, INC. | ||
| By: |
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| Name: | ||
| Title: | ||
| U.S. BANK NATIONAL ASSOCIATION, as Trustee | ||
| By: |
| |
| Name: | ||
| Title: | ||
EXHIBIT A
[FORM OF FACE OF NOTE]
PRIMUS TELECOMMUNICATIONS IHC, INC.
14.25% [Series B]1 Senior Secured Note Due 2013
[CUSIP] [CINS]
No. $
Primus Telecommunications IHC, Inc., a Delaware corporation (herein called the “Issuer,” which term includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to or registered assigns, the principal sum of United States dollars on May 20, 2013, at the office or agency of the Issuer referred to below, and to pay interest thereon on May 31, 2007 and semi-annually thereafter, on May 31 and November 30 in each year, from February 26, 2007 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, at the rate of 14.25% per annum as set forth below, until the principal hereof is paid or duly provided for, and (to the extent lawful) to pay on demand interest on any overdue interest at the rate borne by the Notes from the date on which such overdue interest becomes payable to the date payment of such interest has been made or duly provided for. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in such Indenture, be paid to the Person in whose name this Note (or one or more Predecessor Notes) is registered at the close of business on the Regular Record Date for such interest, which shall be the May 15 or November 15 (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date. Any such interest not so punctually paid or duly provided for shall forthwith cease to be payable to the Holder on such Regular Record Date, and such defaulted interest, and (to the extent lawful) interest on such defaulted interest at the rate borne by the Notes, may be paid to the Person in whose name this Note (or one or more Predecessor Notes) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Notes not less than 10 days prior to such Special Record Date, or may be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Notes may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture.
The Issuer shall pay interest on the Notes in cash (“Cash Interest”); 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 the interest on the Notes may be paid, at the option of the Issuer, [by increasing the principal amount of this Note]2 [by issuing PIK Notes (“PIK Interest”)]3. The Issuer must elect the form of interest payment with respect to each Interest Payment Date by delivering a notice to the Trustee prior to such Interest Payment Date. The Trustee shall promptly deliver a corresponding notice to the Holders. In the absence of such an election for any Interest Payment Date, interest on this Note will be payable in the form of the interest payment for the prior Interest Payment Date.
| 1 | Include only for Exchange Notes. |
| 2 | Include for Global Notes only. |
| 3 | Include for certificated Notes only. |
PIK Interest on this Note will be payable [by increasing the principal amount of this Note by an amount equal to the amount of PIK Interest (rounded up to the nearest $1,000)]4 [by issuing PIK Notes in an aggregate principal amount equal to the amount of PIK Interest (rounded up to the nearest whole dollar) and the Trustee will, at the request of the Issuer, authenticate and deliver such PIK Notes for original issuance to the Holders on the relevant record date, as shown on the Note Register]5. [Following an increase in the principal amount of this Note as a result of the payment of PIK Interest, this Note will bear interest on such increased principal amount from and after the date of such payment of PIK Interest.]6 [Any PIK Notes will be dated as of the applicable Interest Payment Date and will bear interest from and after such date.]7 All PIK Notes issued pursuant to the payment of PIK Interest will mature on May 20, 2013 and will be governed by, and subject to the terms, provisions and conditions of, the Indenture and shall have the same rights and benefits as the Notes issued on the Issuance Date. [Any PIK Notes will be issued with the description “PIK” on the face of such PIK Note.]8
The Holder of this Note is entitled to the benefits of the Registration Rights Agreement, dated as of February 26, 2007 (the “Registration Rights Agreement”), among the Issuer, Primus Telecommunications Group, Incorporated, Primus Telecommunications Holding, Inc., the subsidiaries party thereto and the Holders party thereto. In the event that either (i) any of the Registration Statements required by the Registration Rights Agreement is not declared effective by the Commission on or prior to the date specified for such effectiveness in the Registration Rights Agreement (the “Effectiveness Target Date”), (ii) the Exchange Offer has not been consummated on or prior to the date specified for such consummation in the Registration Rights Agreement or (iii) any Registration Statement required by the Registration Rights Agreement is filed and declared effective but thereafter ceases to be effective or fails to be usable for its intended purpose (in the case of the Exchange Offer Registration Statement referred to in the Registration Rights Agreement, at any time after the Effectiveness Target Date and, in the case of a Shelf Registration Statement referred to in the Registration Rights Agreement, at any time but subject to certain permitted suspensions as more fully described in the Registration Rights Agreement) without being succeeded within five Business Days by a post-effective amendment to such Registration Statement that cures such failure and that is declared effective within such five Business Day period (each such event referred to in clauses (i) through (iii) above, a “Registration Default”), additional cash interest (“Additional Interest”) shall accrue to each Holder of the Notes commencing upon the occurrence of such Registration Default in an amount equal to .25% per annum of the principal amount of Notes held by such Holder. The amount of Additional Interest will increase by an additional .25% per annum of the principal amount of Notes with respect to each subsequent 90-day period (or portion thereof) until all Registration Defaults have been cured, up to a maximum rate of Additional Interest of 1.00% per annum of the principal amount of Notes. All accrued Additional Interest will be paid to Holders by the Issuer in the same manner as interest is paid pursuant to the Indenture. Following the cure of all Registration Defaults, the accrual of Additional Interest will cease.
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, payment of the principal of (and premium and Additional Interest, if any) and Cash Interest on this Note will be made at the office or agency of the Issuer maintained for that purpose in The City of New York, or at such other office or agency of the Issuer as may be maintained for
| 4 | Include for Global Notes only. |
| 5 | Include for certificated Notes only. |
| 6 | Include for Global Notes only. |
| 7 | Include for certificated Notes only. |
| 8 | Include for certificated Notes only. |
such purpose, in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts; provided, however, that payment of Cash Interest may be made at the option of the Issuer (i) by check mailed to the address of the Person entitled thereto as such address shall appear on the Note Register or (ii) by transfer to an account maintained by the payee located in the United States.
Reference is hereby made to the further provisions of this Note set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been duly executed by the Trustee referred to on the reverse hereof by manual signature, this Note shall not be entitled to any benefit under the Indenture, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly executed under its corporate seal.
| PRIMUS TELECOMMUNICATIONS IHC, INC. | ||
| By: |
| |
| Name: | ||
| Title: | ||
Attest:
Authorized Signature
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
Dated:
This is one of the Notes referred to in the within-mentioned Indenture
| U.S. BANK NATIONAL ASSOCIATION, as Trustee | ||
| By: |
| |
| Authorized Signatory | ||
[FORM OF REVERSE SIDE OF NOTE]
PRIMUS TELECOMMUNICATIONS IHC, INC.
14.25% [Series B]9 Senior Secured Notes Due 2013
This Note is one of a duly authorized issue of notes of the Issuer designated as its 14.25% Senior Secured Notes Due 2013 (herein called the “Notes”), which may be issued under an indenture (herein called the “Indenture”) dated as of February 26, 2007 among the Issuer, Primus Telecommunications Group, Incorporated (“Group”), Primus Telecommunications Holding, Inc. (“Holding” and, together with Group, “Parent”), the subsidiaries party thereto (the “Subsidiary Guarantors” and, together with Parent, the “Guarantors”) and U.S. Bank National Association, trustee (herein called the “Trustee”, which term includes any successor trustee under the Indenture), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, duties, obligations and immunities thereunder of the Issuer, Parent, the Subsidiary Guarantors, the Trustee and the Holders of the Notes, and of the terms upon which the Notes are, and are to be, authenticated and delivered.
The performance and punctual payment when due, whether at maturity, by acceleration, by redemption or otherwise, of all monetary obligations of the Issuer under this Indenture and the Notes, whether for principal of, or interest or Additional Interest on, the Notes, indemnification or otherwise, are unconditionally guaranteed by Parent as set forth in the Indenture.
The Notes are subject to redemption upon not less than 30 nor more than 60 days prior notice, in whole or in part, at any time or from time to time on or after February 26, 2008 and prior to Maturity, at the election of the Issuer, at Redemption Prices (expressed in percentages of principal amount thereof), plus accrued and unpaid interest and Additional Interest, if any, thereon to the Redemption Date (subject to the right of Holders of record on the relevant Record Date to receive interest due on an Interest Payment Date that is on or prior to the Redemption Date), if redeemed during the 12-month period beginning February 26 of the years indicated:
| Redemption | |||
| 2008 | 102.00 | % | |
| 2009 | 101.00 | % | |
| 2010 (and thereafter) | 100.00 | % |
Notwithstanding the foregoing, prior to February 26, 2008, the Issuer may on any one or more occasions redeem up to 35% of the originally issued principal amount of Notes at a redemption price of 100.00% of the principal amount thereof, plus accrued and unpaid interest and Additional Interest, if any, thereon to the redemption date, with the Net Cash Proceeds of one or more Equity Offerings to the extent such Net Cash Proceeds have been contributed to the Issuer as common equity; provided (i) that at least 65% of the originally issued principal amount of Notes remains outstanding immediately after giving effect to such redemption and (ii) that notice of such redemption is mailed within 60 days of the closing of each such Equity Offering.
| 9 | Include only for Exchange Notes. |
Upon the occurrence of a Change of Control, the Holder of this Note may require the Issuer, subject to certain limitations provided in the Indenture, to repurchase all or any part of this Note at a purchase price in cash in an amount equal to 101% of the principal amount thereof plus accrued and unpaid interest and Additional Interest, if any, to the date of purchase.
Under certain circumstances, in the event the Net Cash Proceeds received by the Issuer from an Asset Sale, which proceeds are not used to (i) (A) apply an amount equal to such Net Cash Proceeds to permanently reduce, repay, redeem or repurchase First Lien Indebtedness of any Restricted Person that is not a Guarantor, in each case owing to a Person other than any Restricted Person; provided that if such unsubordinated Indebtedness (other than secured Indebtedness under any Credit Facility) is pari passu with the Notes, then the Issuer will ratably reduce, repay, redeem or repurchase Indebtedness under the Notes, or (B) invest an equal amount, or the amount not so applied pursuant to clause (A), in long-term property or assets of a nature or type or that are used in a business (or in a company having property and assets of a nature or type, or engaged in a business) similar or related to the nature or type of the property and assets of, or the business of, the Issuer and the Restricted Persons existing on the date of such investment (as determined in good faith by the Board of Directors of Group, whose determination shall be conclusive and evidenced by a Board Resolution) and (ii) apply (no later than the end of the 360-day period immediately following the date of receipt of the Net Cash Proceeds from an Asset Sale) such excess Net Cash Proceeds (to the extent not applied pursuant to clause (i)) in accordance with the Indenture, the Issuer shall be required to make an offer to all Holders to purchase the maximum principal amount of Notes, in an integral multiple of $1,000, that may be purchased out of such amount at a purchase price in cash equal to 100% of the principal amount thereof, plus accrued, unpaid interest and Additional Interest, if any, to the date of purchase, in accordance with the Indenture. Holders of Notes that are subject to any offer to purchase shall receive an Excess Proceeds Offer from the Issuer prior to any related Excess Proceeds Payment Date.
In the case of any redemption or repurchase of Notes, interest installments and Additional Interest, if any, whose Stated Maturity is on or prior to the Redemption Date or Excess Proceeds Payment Date will be payable to the Holders of such Notes, or one or more Predecessor Notes, of record at the close of business on the relevant Record Date referred to on the face hereof. Notes (or portions thereof) for whose redemption and payment provision is made in accordance with the Indenture shall cease to bear interest from and after the Redemption Date or Excess Proceeds Payment Date, as the case may be.
In the event of redemption of this Note in part only, a new Note or Notes for the unredeemed portion hereof shall be issued in the name of the Holder hereof upon the cancellation hereof.
If an Event of Default shall occur and be continuing, the principal of all the Notes may be declared due and payable in the manner and with the effect provided in the Indenture.
The Indenture contains provisions for defeasance at any time of (a) the entire indebtedness of the Issuer on this Note and (b) certain restrictive covenants and the related Defaults and Events of Default, upon compliance by the Issuer with certain conditions set forth therein, which provisions apply to this Note.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Issuer and the rights of the Holders under the Indenture at any time by the Issuer and the Trustee with the consent of the Holders of a majority in aggregate principal amount of the Notes at the time Outstanding. The Indenture also contains provisions permitting the Holders of specified percentages in aggregate principal amount of the Notes at the time Outstanding, on behalf of the Holders of all the Notes, to waive compliance by the Issuer with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by or on behalf of the Holder of this Note shall be conclusive and binding upon
such Holder and upon all future Holders of this Note and of any Note issued upon the registration of transfer hereof or in exchange herewith or in lieu hereof whether or not notation of such consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Issuer, which is absolute and unconditional, to pay the principal of (and premium, if any) and interest and Additional Interest, if any, on this Note at the times, place, and rate, and in the coin or currency, herein prescribed.
If less than all the Notes are to be redeemed, the particular Notes to be redeemed shall be selected not more than 60 days prior to the Redemption Date in compliance with the requirements of the principal national securities exchange, if any, on which the Notes are listed or, if the Notes are not listed on a national securities exchange, on a pro rata basis, by lot or by such other method as the Trustee in its sole discretion shall deem fair and appropriate and which may provide for the selection for redemption of portions of the principal of Notes.
As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Note is registrable on the Note Register of the Issuer, upon surrender of this Note for registration of transfer at the office or agency of the Issuer maintained for such purpose in The City of New York, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Issuer and the Note Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Notes, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.
The Notes are issuable only in registered form without coupons in denominations of $1,000 and any integral multiple thereof; provided that PIK Notes are issuable only in registered form without coupons in denominations of $1.00 and any integral multiple thereof. As provided in the Indenture and subject to certain limitations therein set forth, the Notes are exchangeable for a like aggregate principal amount of Notes of a different authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any registration of transfer or exchange of Notes, but the Issuer may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
Prior to the time of due presentment of this Note for registration of transfer, the Issuer, the Trustee and any agent of the Issuer or the Trustee may treat the Person in whose name this Note is registered on the Note Register as the owner hereof for all purposes, whether or not this Note be overdue, and neither the Issuer, the Trustee nor any agent shall be affected by notice to the contrary.
THIS NOTE SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Interest on this Note shall be computed on the basis of a 360-day year of twelve 30-day months. All terms used in this Note which are defined in the Indenture and not otherwise defined herein shall have the meanings assigned to them in the Indenture.
Notwithstanding anything herein or in the Indenture to the contrary and to the extent not prohibited by the Trust Indenture Act of 1939, the right to receive payments under this Agreement by the Second Lien Collateral Agent or the Holders and the lien and security interest granted to the Second Lien Collateral Agent pursuant to the Collateral Agreement and the exercise of any right or remedy by the
Second Lien Collateral Agent or the Holders hereunder or thereunder are subject to the provisions of the Intercreditor Agreement and the lien and payment subordination provisions contained therein, among Parent, the Company, The Bank of New York Mellon (as successor to Lehman Commercial Paper Inc.), as First Lien Collateral Agent, and U.S. Bank National Association, as Second Lien Collateral Agent, and certain other persons party or that may become party thereto from time to time. In the event of any conflict between the terms of the Intercreditor Agreement and this Agreement or the Collateral Agreement, the terms of the Intercreditor Agreement shall govern and control.
[FORM OF TRANSFER NOTICE]
FOR VALUE RECEIVED the undersigned registered holder hereby sell(s), assign(s) and transfer(s) unto
Insert Taxpayer Identification No.
(Please print or typewrite name and address including zip code of assignee)
the within Note and all rights thereunder, hereby irrevocably constituting and appointing its attorney to transfer such Note on the books of the Issuer with full power of substitution in the premises.
[THE FOLLOWING PROVISION TO BE INCLUDED ON ALL NOTES
OTHER THAN EXCHANGE NOTES AND OFFSHORE PHYSICAL NOTES]
In connection with any transfer of this Note occurring prior to the date which is the earlier of the (i) date of an effective Registration Statement or (ii) one year after the later of the original issuance of this Note or the last date on which this Note was held by an Affiliate of the Issuer, the undersigned confirms that without utilizing any general solicitation or general advertising:
[Check One]
¨ (a) this Note is being transferred in compliance with the exemption from registration under the Securities Act of 1933, as amended, provided by Rule 144A thereunder,
or
¨ (b) this Note is being transferred other than in accordance with (a) above and documents are being furnished which comply with the conditions of transfer set forth in this Note and the Indenture.
If neither of the foregoing boxes is checked, the Trustee or other Note Registrar shall not be obligated to register this Note in the name of any Person other than the Holder hereof unless and until the conditions to any such transfer of registration set forth herein and in Section 3.05 of the Indenture shall have been satisfied.
Signature Guarantee*:
Date:
| NOTICE: The signature to this assignment must correspond with the name as written upon the face of the within-mentioned instrument in every particular, without alteration or any change whatsoever. |
| * | Guarantor must be a member of the Securities Transfer Agents Medallion Program (“STAMP”), the New York Stock Exchange Medallion Signature Program (“MSP”) or the Stock Exchange Medallion Program (“SEMP”) |
DTC Participant Number:
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this Note for its own account or an account with respect to which it exercises sole investment discretion and that it or such account is a “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act of 1933, as amended, and that each is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information regarding the Issuer as the undersigned has requested pursuant to Rule 144A or has determined not to request such information and that each is aware that the transferor is relying upon the undersigned’s foregoing representations in order to claim the exemption from registration provided by Rule 144A.
Date:
NOTICE: To be executed by an executive officer
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Note purchased by the Issuer pursuant to Section 10.10 or 10.17 of the Indenture, check the Box: ¨
If you wish to have a portion of this Note purchased by the Issuer pursuant to
Section 10.10 or 10.17 of the Indenture, state the amount (in original principal amount) below:
$ .
Date:
Your Signature:
(Sign exactly as your name appears on the other side of this Note)
Signature Guarantee*:
| * | Guarantor must be a member of the Securities Transfer Agents Medallion Program (“STAMP”), the New York Stock Exchange Medallion Signature Program (“MSP”) or the Stock Exchange Medallion Program (“SEMP”) |
DTC Participant Number:
ANNEX A
FORM OF
AMENDMENT TO INTERCREDITOR AGREEMENT
FORM OF FIRST AMENDMENT (this “First Amendment”) to the INTERCREDITOR AGREEMENT, dated as of February 26, 2007 (as amended through the date hereof, the “Intercreditor Agreement”), by and among PRIMUS TELECOMMUNICATIONS HOLDING, INC., a Delaware corporation (the “Company”), PRIMUS TELECOMMUNICATIONS GROUP, INCORPORATED (the “Parent”), PRIMUS TELECOMMUNICATIONS IHC, INC., a Delaware corporation (the “Notes Issuer”), THE BANK OF NEW YORK MELLON (as successor to LEHMAN COMMERCIAL PAPER INC., in its capacity as administrative agent for the First Lien Obligations (as defined in the Intercreditor Agreement)) (in such capacity, the “First Lien Collateral Agent”), and U.S. BANK NATIONAL ASSOCIATION, in its capacity as collateral agent for the Second Lien Obligations (as defined in the Intercreditor Agreement) (in such capacity, the “Second Lien Collateral Agent”), is dated as of the First Amendment Effective Date (as defined below). Unless otherwise noted herein, terms defined in the Intercreditor Agreement and used herein shall have the meanings given to them in the Intercreditor Agreement.
W I T N E S S E T H:
WHEREAS, the Parent, the Company, the Notes Issuer and certain other subsidiaries of the Parent commenced voluntary bankruptcy proceedings (the “Proceedings”) on March 16, 2009, in connection with a prenegotiated plan of reorganization (as such plan may be modified from time to time, the “Plan”) under Chapter 11 of title 11 of the United States Code (the “Bankruptcy Code”);
WHEREAS, subject to the satisfaction of certain conditions, the Plan provides for the amendment of the Intercreditor Agreement in accordance with this First Amendment in certain circumstances;
WHEREAS, pursuant to the terms of the Plan and this First Amendment, the Second Lien Obligations will be subordinated to the First Lien Obligations in the manner and subject to the terms and conditions set forth herein; and
WHEREAS, this First Amendment will become effective on the date the conditions set forth in Section 5 hereto are satisfied and the Plan is substantially consummated.
NOW, THEREFORE, in consideration of the premises herein contained and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto agree as follows:
1 Amendments to Intercreditor Agreement.
.1 Each instance of the words “Lehman Commercial Paper Inc.” and “LCPI” in the Intercreditor Agreement is hereby replaced with “The Bank of New York Mellon”.
.2 Section 1.1 (Defined Terms).
.1 Section 1.1 of the Intercreditor Agreement is hereby amended by adding thereto the following definitions, which shall be inserted in proper alphabetical order:
“Blockage Notice” has the meaning assigned to that term in Section 8.3.
“Capital Stock” means, with respect to any Person, any and all shares, interests, participations or other equivalents (however designated, whether voting or non-voting) in equity of such Person, whether now outstanding or issued after the First Amendment Effective Date, including, without limitation, all Common Stock and Preferred Stock.
“Common Stock” means, with respect to any Person, any and all shares, interests, participations or other equivalents (however designated, whether voting or non-voting, but in no event shall such Common Stock be redeemable for cash or other consideration (other than additional Common Stock) prior to the Discharge of the First Lien Obligations)) of such Person’s common stock, whether now outstanding or issued after the First Amendment Effective Date, including, without limitation, all series and classes of such common stock.
“Equity Interests” means Capital Stock and all warrants, options or other rights to acquire Capital Stock (but excluding any debt security that is convertible into, or exchangeable for, Capital Stock).
“First Amendment Effective Date” means the date the First Amendment to the Intercreditor Agreement, by and among the Company, the Parent, the Notes Issuer, the First Lien Collateral Agent and the Second Lien Collateral Agent became effective in accordance with its terms.
“First Lien Credit Agreement Amendment” means that certain Third Amendment to the Term Loan Agreement, dated as of the date hereof, among the Parent, the Company, the Lenders party thereto, LCPI as Existing Agent (as defined therein) and Bank of New York Mellon as Successor Agent (as defined therein).
“Non-Cash Consideration” has the meaning assigned to that term in Section 8.2(b).
“Non-Payment Blockage Period” has the meaning assigned to that term in Section 8.3.
“Non-Payment Default” has the meaning assigned to that term in Section 8.3.
“Notes Payments” has the meaning assigned to that term in Section 8.3.
“Paying Agent” has the meaning assigned to that term in Section 8.7.
“Payment Default” has the meaning assigned to that term in Section 8.3.
“Permitted Junior Securities” means:
(a) Equity Interests in the Notes Issuer, any Guarantor Subsidiary or any direct or indirect parent of the Notes Issuer; or
(b) debt securities that are subordinated to all First Lien Obligations (and any debt securities issued in exchange for First Lien Obligations) to substantially the same extent as, or to a greater extent than, the Second Lien Obligations are subordinated to First Lien Obligations under this Agreement;
provided that the term “Permitted Junior Securities” shall not include any securities distributed pursuant to a plan of reorganization if the First Lien Obligations are treated as part of the same class as the Second Lien Obligations for purposes of such plan of reorganization; provided, further, that to the extent that any of the First Lien Obligations outstanding on the date of consummation of any such plan of reorganization are not paid in full in cash on such date, the holders of any such First Lien Obligations not so paid in full in cash have consented to the terms of such plan of reorganization.
“PIK Interest” means interest that is payable on the Senior Secured Notes by adding the amount of such interest to the principal amount of the Senior Secured Notes or by issuing a note in the same form and subject to the same terms as the Senior Secured Notes, in each case, in accordance with the terms of the Second Lien Loan Documents.
“Preferred Stock” means, with respect to any Person, any and all shares, interests, participations or other equivalents (however designated, whether voting or non-voting, but in no event shall such Preferred Stock be redeemable for cash or other consideration (other than additional Preferred Stock or Common Stock) prior to the Discharge of the First Lien Obligations) of such Person’s preferred or preference stock, whether now outstanding or issued after the First Amendment Effective Date, including, without limitation, all series and classes of such preferred or preference stock.
“Responsible Officer” means, when used with respect to the Second Lien Collateral Agent, any officer within the corporate trust department of the Second Lien Collateral Agent, including any vice president, assistant vice president, assistant secretary, assistant treasurer, trust officer or any other officer of the Second Lien Collateral Agent who customarily performs functions similar to those performed by the Persons who at the time shall be such officers, respectively, or to whom any corporate trust matter is referred because of such Person’s knowledge of and familiarity with the particular subject and who shall have direct responsibility for the administration of the Senior Secured Note Indenture.
“Second Lien Note Documents” means the Second Lien Loan Documents.
.3 The definition of “Second Lien Obligations” is hereby amended by inserting the phrase “, the Second Lien Guarantee” after the phrase “Senior Secured Note Indenture” therein.
.4 Section 2 (Lien Priorities). Section 2 of the Intercreditor Agreement is hereby amended by deleting the word “Lien” in the heading thereto.
.5 Section 2.1 (Relative Priorities). Section 2.1 of the Intercreditor Agreement is hereby amended by replacing the word “of” at the end of clause (x) of clause (iii) thereof with the word “or”.
.6 Section 2.2 (Prohibition on Contesting Liens). Section 2.2 of the Intercreditor Agreement is hereby amended by (i) adding the words “or Payment Subordination” to the heading thereto; (ii) adding the phrase “or any provision of this agreement relating to the subordination in priority and right of payment of the Second Lien Obligations to the First Lien Obligations” immediately before the proviso in the first sentence thereof and (iii) adding the phrase “and with respect to payment” after the phrase “with respect to the Collateral” in the second sentence thereof.
.7 Section 2.4 (Similar Liens and Agreements). Section 2.4 of the Intercreditor Agreement is hereby amended by deleting the phrase “Section 8.9” set forth in the first sentence thereof and inserting in lieu thereof the phrase “Section 9.9”.
.8 Section 3.1(e) is hereby amended by deleting such section in its entirety.
.9 Section 3.1(f) is hereby amended by adding the phrase “or in Section 8,” immediately after the phrase “Sections 3.1(a) and (d)” in the first sentence thereof.
.10 Section 4.2 (Payments Over). Section 4.2 of the Intercreditor Agreement is hereby amended and restated in its entirety as follows:
“4.2. Payments Over. So long as the Discharge of First Lien Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against Parent, the Company or any other Grantor, any Collateral or proceeds thereof (including assets or proceeds subject to Liens referred to in the final sentence of Section 2.3) received by the Second Lien Collateral Agent or any Second Lien Claimholders in connection with the exercise of any right or remedy (including, without limitation, set-off, recoupment or counterclaim) relating to the Collateral, and any Notes Payments or distributions received by the Second Lien Collateral Agent or any Second Lien Claimholder from any source (whether from the Notes Issuer, any Grantor or any other Person) that were not then permitted to be made to the Second Lien Collateral Agent or any Second Lien Claimholder pursuant to Section 8 of this Agreement, shall, in each case, be segregated and held in trust and immediately paid over to the First Lien Collateral Agent for the benefit of the First Lien Claimholders in the same form as received, with any necessary endorsements or as a court of competent jurisdiction may otherwise direct. The First Lien Collateral Agent is hereby authorized to make any such endorsements as agent for the Second Lien Collateral Agent or any such Second Lien Claimholders. This authorization is coupled with an interest and is irrevocable until the Discharge of First Lien Obligations.”
.11 Section 5.3(a) (Amendments to First Lien Documents). Section 5.3(a) of the Intercreditor Agreement is hereby amended and restated in its entirety to read as follows:
“(a) The First Lien Loan Documents may be amended, supplemented or otherwise modified in accordance with their terms and the First Lien Credit Agreement may be Refinanced, in each case, without notice to, or the consent of the Second Lien Collateral Agent or the Second Lien Claimholders, all without affecting the lien subordination, payment subordination or other provisions of this Agreement, except that, without the prior written consent of the Second Lien Collateral Agent, no amendment, waiver or other modification of the terms of the First Lien Loan Documents may (i) increase the then outstanding principal amount of the loans under the First Lien Loan Documents so that such amount is greater than $100,000,000.00 plus, in the case of a refinancing of the First Lien Credit Agreement in which the holders of the Refinancing debt or an agent acting on their behalf agree (in a writing addressed to the Second Lien Collateral Agent) to the terms of this Agreement, capitalized unpaid interest and fees not in excess of $10,000,000, or (ii) prohibit the Notes Issuer from making any, or any portion of any, payment permitted to be made pursuant to Section 8.3 in respect of the Second Lien Obligations and permitted under the First Lien Credit Agreement in effect on the date hereof. Any such amendment, supplement, modification or Refinancing will not, without the consent of the Second Lien Collateral Agent, contravene the provisions of this Agreement. The Notes Issuer shall promptly provide to the Second Lien Collateral Agent a copy of any amendment to the First Lien Documents.”
.12 Section 5.3(c) (Amendments to First Lien Loan Documents and Second Lien Loan Documents). Section 5.3(c) of the Intercreditor Agreement is hereby amended by deleting such section in its entirety and substituting in lieu thereof the following new Section 5.3(c):
“(c) Each of Parent, the Company and the Notes Issuer agrees that each Second Lien Loan Document shall include the following language (or language to similar effect approved by the First Lien Collateral Agent):
“Notwithstanding anything herein to the contrary and to the extent not prohibited by the
Trust Indenture Act of 1939, the right to receive payments under this Agreement by the Second Lien Collateral Agent or the Holders and the lien and security interest granted to the Second Lien Collateral Agent pursuant to this Agreement and the Collateral Agreement and the exercise of any right or remedy by the Second Lien Collateral Agent or the Holders hereunder or thereunder are subject to the provisions of the Intercreditor Agreement, dated as of February 26, 2007 (as amended, restated, supplemented or otherwise modified from time to time, the “Intercreditor Agreement”) and the lien and payment subordination provisions contained therein, among Parent, the Company, Bank of New York Mellon (as successor to Lehman Commercial Paper Inc.), as First Lien Collateral Agent, and U.S. Bank National Association, as Second Lien Collateral Agent, and certain other persons party or that may become party thereto from time to time. In the event of any conflict between the terms of the Intercreditor Agreement and this Agreement or the Collateral Agreement, the terms of the Intercreditor Agreement shall govern and control.””
.13 Section 5.5 (When Discharge of First Lien Obligations Deemed to Not Have Occurred). Section 5.5 of the Intercreditor Agreement is hereby amended by inserting the following phrase “the priority and right of payment of the Obligations and” immediately prior to the phrase “the Lien priorities and rights against the Collateral set forth herein,” towards the end of the first sentence thereof.
.14 Section 6.6 (Reorganization Securities). Section 6.6 of the Intercreditor Agreement is hereby amended by deleting such section in its entirety and substituting in lieu thereof the following new Section 6.6:
“6.6 Reorganization Securities. If, in any Insolvency or Liquidation Proceeding, debt obligations of the reorganized debtor are distributed pursuant to a plan of reorganization or similar dispositive restructuring plan, both on account of First Lien Obligations and on account of Second Lien Obligations, then the provisions of this Agreement (including, without limitation, the subordination provisions set forth in Section 8) will survive the distribution of such debt obligations pursuant to such plan and will apply with like effect to the Liens securing such debt obligations; provided that, to the extent the debt obligations distributed on account of the First Lien Obligations are secured by Liens on property that is not also subject to Liens securing debt obligations distributed on account of the Second Lien Obligations, such property shall be considered Non-Second Lien Collateral for purposes of this Agreement.”
.15 Section 6.9 (Separate Grants of Security and Separate Classification). Section 6.9 of the Intercreditor Agreement is hereby amended by (i) inserting the following immediately prior to the semicolon at the end of clause (a) in the first paragraph thereof “ and the priority and rights to receive payment under the First Lien Loan Documents and the Second Lien Loan Documents constitute two separate and distinct rights and priorities of payment”; (ii) inserting the following phrase immediately after the word “Collateral” in clause (b) in the first paragraph thereof “and the differing priorities and rights of payment” and (iii) deleting the second paragraph thereof in its entirety and substituting in lieu there of the following new paragraph:
“To further effectuate the intent of the parties as provided in the immediately preceding sentence, if it is held that the claims of the First Lien Claimholders and the Second Lien Claimholders in respect of the Collateral constitute only one secured claim (rather than separate classes of senior and junior secured claims), then each of the First Lien Collateral Agent and the Second Lien Collateral Agent hereby acknowledges and agrees that, subject to Sections 2.1, 4.1 and 8, all payments and other distributions shall be made as if there were separate classes of senior and junior secured claims against the Grantors (with the effect being that the First Lien Claimholders shall be entitled to receive, in addition to amounts distributed to them in respect of principal, pre–petition interest and other claims, all amounts owing in respect of post–petition interest (including any additional interest payable pursuant to the First Lien Credit Agreement, arising from or related to a default, which is disallowed as a claim in any Insolvency or
Liquidation Proceeding) before any payment or other distribution of any kind is made in respect of the claims held by the Second Lien Claimholders, with the Second Lien Collateral Agent, for itself and on behalf of the Second Lien Claimholders, hereby acknowledging and agreeing to turn over to the First Lien Collateral Agent, for itself and on behalf of the First Lien Claimholders, any such payments or other distributions, even if such turnover has the effect of reducing the claim or recovery of the Second Lien Claimholders otherwise received or receivable by them to the extent necessary to effectuate the intent of this sentence, even if such turnover has the effect of reducing the claim or recovery of the Second Lien Claimholders).”
.16 Section 8 (Miscellaneous).
.1 Section 8.2 of the Intercreditor Agreement is hereby amended by inserting the words “and payment subordination” immediately following the words “lien subordination” in the second sentence thereof.
.2 Section 8.9 of the Intercreditor Agreement is hereby amended by inserting the words “and payment” between the words “Lien” and “priorities” towards the end thereof.
.3 Section 8.14 of the Intercreditor Agreement is hereby amended by inserting the words “, by e-mail or other electronic means” after the word “telecopy” therein.
.4 Section 8 of the Intercreditor Agreement is hereby amended by (A) deleting the phrase “SECTION 8.8” in Section 8.7(a)(3) and inserting in lieu thereof the phrase “SECTION 9.8”, (B) deleting the phrase “SECTION 8.7(b)” in Section 8.7(b) and inserting in lieu thereof the phrase “SECTION 9.7(b)”, and (C) renumbering such Section of the Intercreditor Agreement as Section 9 thereof.
.17 New Section 5.7 (Subordination). The Intercreditor Agreement is hereby amended by adding the following new Section 5.7:
5.7 No Subordination of First Lien Obligations. The First Lien Collateral Agent, on behalf of the First Lien Claimholders, shall not voluntarily agree to subordinate any First Lien Obligations to any other obligations owed to a third party except in connection with a DIP Financing pursuant to Section 6.1 if the sum of the First Lien Obligations and the other obligations to which the First Lien Obligations are so subordinated exceeds $100,000,000.
.18 New Section 8 (Subordination). The Intercreditor Agreement is hereby amended by adding the following new Section 8:
SECTION 8. Subordination.
8.1. Agreement to Subordinate. Subject to the other provisions of this Agreement, the Second Lien Collateral Agent agrees, on behalf of the Second Lien Claimholders, and each Second Lien Claimholder by continuing to hold or accepting a Senior Secured Note agrees, that the payment of all Second Lien Obligations is subordinated in right of payment, to the extent and in the manner provided in this Section 8, to the prior indefeasible payment in cash in full of all existing and future First Lien Obligations and that the subordination is for the benefit of and enforceable by the First Lien Claimholders. All provisions of this Section 8 shall be subject to Section 9.9. Notwithstanding any other provision of this Agreement, the provisions of this Article VIII will not apply to Second Lien Adequate Protection Payments.
8.2. Insolvency or Liquidation Proceedings. Upon any payment or distribution of the assets of the Note Issuer or any other Grantor to creditors in connection with an Insolvency or Liquidation Proceeding:
(a) the First Lien Claimholders shall be entitled to the prior indefeasible Discharge of First Lien Obligations in cash before the Second Lien Claimholders shall be entitled to receive any payment or distribution from any source (whether or not from the Notes Issuer or any other Grantor) of any kind (whether in cash, Equity Interests or otherwise) in respect of the Second Lien Obligations;
(b) until the prior indefeasible Discharge of First Lien Obligations has occurred, any payment or distribution from any source (whether or not from the Notes Issuer or any other Grantor) of any kind (whether in cash, Equity Interests or otherwise) to which the Second Lien Claimholders would be entitled but for the subordination provisions of this Agreement shall be made to the First Lien Collateral Agent for the benefit of the First Lien Claimholders, except that Second Lien Claimholders may receive Permitted Junior Securities; provided, that, if such payments are in a form other than cash or cash equivalents (the “Non-Cash Consideration”), the First Lien Collateral Agent, for the benefit of the First Lien Claimholders, shall be authorized to monetize such Non-Cash Consideration (other than Permitted Junior Securities) in its sole discretion and any cash proceeds shall be applied to the First Lien Obligations as provided herein. The application of such cash proceeds shall reduce the First Lien Obligations only to the extent of the actual cash payment indefeasibly received by the First Lien Claimholders, net of fees, costs and commissions; and
(c) if any payment or distribution from any source (whether or not from the Notes Issuer or any other Grantor) of any kind is made to the Second Lien Collateral Agent or any Second Lien Claimholders in respect of the Second Lien Obligations that, pursuant to this Agreement, should not have been made to them, such Second Lien Claimholders shall hold such payments or distributions in trust for the First Lien Claimholders and immediately pay and/or deliver such payments or distributions over to the First Lien Collateral Agent for the benefit of the First Lien Claimholders.
8.3. Default of First Lien Obligations.
(a) No payments of principal of, premium, if any, or interest (other than PIK Interest, which, for the avoidance of doubt, shall be permitted to be paid) on the Senior Secured Notes (nor any payments of any of the other Second Lien Obligations, including, without limitation, Second Lien Guarantees, fees, costs, expenses, indemnities and rescission or damage claims), nor shall any deposit be made pursuant to the Senior Secured Note Indenture, nor shall any of the Senior Secured Notes be purchased, redeemed or otherwise retired by the Notes Issuer or any other Grantor (collectively, “Notes Payments”) (except in the form of Permitted Junior Securities) if either of the following occurs (a “Payment Default”):
(i) any First Lien Obligation is not paid in full in cash when due (after giving effect to any applicable grace period); or
(ii) any other default under the First Lien Loan Documents occurs and the maturity of the First Lien Obligations is accelerated in accordance with the terms of the First Lien Loan Documents;
unless, in either case, the Payment Default has been cured or waived and any such acceleration has been rescinded or the Discharge of First Lien Obligations has occurred.
(b) During the continuance of any default described in Sections 7(b), 7(c), 7(d), 7(e), 7(f), 7(g), 7(h), 7(i), 7(j), or 7(k) of the First Lien Credit Agreement (as in effect on the First Amendment Effective Date) or comparable provisions of any agreement replacing or refinancing that agreement (a “Non-Payment Default”) under the First Lien Loan Documents pursuant to which the maturity of the First Lien Obligations may be accelerated without further notice (except such notice as may be required to effect such acceleration) or the expiration of any applicable grace periods, no Notes Payments shall be made (except in the form of PIK Interest, Permitted Junior Securities or a combination of PIK Interest and Permitted Junior Securities) for a period (a “Non-Payment Blockage Period”) commencing upon the receipt by the Second Lien Collateral Agent (with a copy to the Notes Issuer) of written notice (a “Blockage Notice”) of such Non-Payment Default from the First Lien Collateral Agent specifying an election to effect a Payment Blockage Period and ending on the earliest of (i) 179 days after the receipt of the Blockage Notice, (ii) the date written notice to that effect is delivered to the Second Lien Collateral Agent and the Notes Issuer by the First Lien Collateral Agent; (iii) the date on which the default giving rise to such Blockage Notice is cured, waived or otherwise no longer continuing; and (iv) the date that the Discharge of First Lien Obligations has occurred.
(c) With respect to the occurrence of any Non-Payment Default only, unless the maturity of the First Lien Obligations shall have been accelerated, Notes Payments may be resumed after the end of the Non-Payment Blockage Period relating to such occurrence of such Non-Payment Default. The Second Lien Obligations shall not be subject to (i) more than two Payment Blockage Periods in any consecutive 360-day period irrespective of the number of defaults with respect to the First Lien Obligations during such period or (ii) more than five Payment Blockage Periods in the aggregate. There must be at least 181 days during any consecutive 360-day period during which no Payment Blockage Period is in effect. Notwithstanding the foregoing, however, no default that existed or was continuing on the date of delivery of any Blockage Notice to the Second Lien Collateral Agent shall be, or be made, the basis for a subsequent Blockage Notice unless such default shall have been waived for a period of not less than 90 consecutive days (it being acknowledged that any subsequent action, or any breach of any financial covenants during the period after the date of delivery of a Blockage Notice, that, in either case, would give rise to a Non-Payment Default pursuant to any provisions under which a Non-Payment Default previously existed or was continuing shall constitute a new Non-Payment Default for this purpose).
(d) Upon the termination of any Non-Payment Blockage Period, the Notes Issuer shall forthwith pay to the Second Lien Collateral Agent for the account of the Second Lien Claimholders all amounts required to be paid to them under the Second Lien Loan Documents but were not paid because of the existence of this Agreement.
8.4. Acceleration of Payment of Second Lien Obligations. Subject in all respects to the terms and conditions of this Agreement, if payment of the Second Lien Obligations is accelerated because of a default under any of the Second Lien Loan Documents, the Second Lien Collateral Agent shall promptly notify the First Lien Collateral Agent of the acceleration; provided that any failure to give such notice shall have no effect whatsoever on the provisions of this Section 8.
8.5. Exercise of Remedies.
(a) Without limiting or modifying the provisions of Section 3 hereof (and in addition to the rights and obligations of the parties hereto set forth in Section 3 hereof) and to the extent not prohibited by the Trust Indenture Act of 1939, without the prior written consent of the First Lien Collateral Agent, the Second Lien Collateral Agent shall not, and no Second Lien Claimholder shall, exercise any of its rights and remedies with respect to the Second Lien Obligations until the earliest to occur of the following and in any event no earlier than 10 days after the First Lien Collateral Agent’s
receipt of written notice of the Second Lien Claimholder’s intention to exercise such rights and remedies after the occurrence of the earliest of any of the following:
(i) the Discharge of First Lien Obligations;
(ii) acceleration of the First Lien Obligations or the failure to pay the First Lien Obligations (or any part thereof) in full and in cash at maturity;
(iii) the occurrence of an Insolvency or Liquidation Proceeding;
(iv) the passage of 90 days from the later of (A) the date that the Second Lien Collateral Agent has declared an Event of Default under the Second Lien Loan Documents if any such Event of Default has not been cured or waived within such period and (B) the date on which the First Lien Collateral Agent received notice from the Second Lien Collateral Agent of such declaration of an Event of Default; and
(v) the exercise by the First Lien Collateral Agent or any First Lien Claimholder of any remedies under the First Lien Loan Documents.
(b) Notwithstanding anything contained herein to the contrary, if following the acceleration of the First Lien Obligations such acceleration is rescinded (whether or not any existing Event of Default under the First Lien Loan Documents has been cured or waived), then all actions taken by any Second Lien Claimholder in connection with the exercise of its rights and remedies will likewise be rescinded if such action is based solely on clauses (i), (ii) or (iv) of paragraph (a) of this Section 8.5.
8.6. Subordination May Not Be Impaired by Notes Issuer. No right of any First Lien Claimholder to enforce the subordination of the Second Lien Obligations shall be impaired by any act or failure to act by the Parent, the Company, the Notes Issuer or any Grantor or by their failure to comply with this Agreement.
8.7. Rights of Second Lien Collateral Agent and Paying Agent. Notwithstanding Section 8.3 hereof, the Second Lien Collateral Agent and any paying agent in respect of the Senior Secured Notes (the “Paying Agent”) may continue to make Notes Payments, and any Second Lien Claimholder may continue to accept Notes Payments, and shall not be charged with knowledge of the existence of facts that would prohibit the making or acceptance of any Notes Payments unless, not less than two Business Days prior to the date of such Notes Payment, the Second Lien Collateral Agent receives notice from the First Lien Collateral Agent that payments may not be made under this Section 8. Upon receipt of any such notice, the Second Lien Collateral Agent, any Paying Agent and any Second Lien Claimholder shall immediately turn over any such Notes Payment pursuant to the terms of this Agreement.
The Second Lien Collateral Agent in its individual or any other capacity shall be entitled to hold First Lien Obligations with the same rights it would have if it were not the Second Lien Collateral Agent. The registrar in respect of the Senior Secured Notes and the Paying Agent shall be entitled to do the same with like rights (provided that any such registrar or Paying Agent is not an Affiliate of the Parent, the Company, the Notes Issuer or any Grantor). The Second Lien Collateral Agent shall be entitled to all the rights set forth in this Agreement with respect to any First Lien Obligations which may at any time be held by it, to the same extent as any other First Lien Claimholder; and nothing in this Agreement shall deprive the Second Lien Collateral Agent of any of its rights as such First Lien Claimholder. Nothing in this Section 8 shall apply to claims of, or payments to, the Second Lien Collateral Agent (solely in its capacity as an agent or trustee thereunder) under or pursuant to the Senior Secured Note Indenture.
8.8. Section 8 Not To Prevent Events of Default. The failure to make a Notes Payment by reason of any provision in this Section 8 shall not be construed as preventing the occurrence of an event of default under any of the Second Lien Loan Documents.
8.9. Trust Moneys Not Subordinated. Notwithstanding anything contained herein to the contrary, payments from money or the proceeds of U.S. Government Obligations (as defined in the Senior Secured Note Indenture) held in trust by the Second Lien Collateral Agent or the Paying Agent for the payment of principal of and interest on the Senior Secured Notes pursuant to Article IV, Article XI or Article XIV of the Senior Secured Note Indenture shall not be subordinated to the prior payment of any First Lien Obligations or subject to the restrictions set forth in this Section 8, and none of the Second Lien Collateral Agent or the Second Lien Claimholders or the Paying Agent shall be obligated to pay over any such amount to the First Lien Collateral Agent or any First Lien Claimholder, provided that the subordination provisions of this Agreement were not violated at the time the applicable amounts were deposited in trust pursuant to Article IV, Article XI or Article XIV of the Senior Secured Note Indenture, as the case may be.
8.10. Trustee Entitled To Rely. Upon any payment or distribution pursuant to this Section 8, the Second Lien Collateral Agent and the Second Lien Claimholders shall be entitled to rely (a) upon any order or decree of a court of competent jurisdiction in which any Insolvency or Liquidation Proceedings are pending, (b) upon a certificate of the liquidating trustee or agent or other Person making such payment or distribution to the Second Lien Collateral Agent or the Second Lien Claimholders or (c) upon the First Lien Collateral Agent for the purpose of ascertaining the Persons entitled to participate in such payment or distribution, the identity of the First Lien Claimholders, the amount of or payable in respect of the First Lien Obligations, the amount or amounts paid or distributed in respect of the First Lien Obligations and all other facts pertinent thereto or to this Agreement.
8.11. Trustee Not Fiduciary for First Lien Claimholders. The Trustee shall not be deemed to owe any fiduciary duty to the First Lien Claimholders by virtue of this Agreement or otherwise.
8.12. Reliance by First Lien Claimholders on Subordination Provisions. The Second Lien Collateral Agent, on behalf of the Second Lien Claimholders, acknowledges and agrees that the foregoing subordination provisions are, and are intended to be, an inducement and a consideration to each First Lien Claimholder to acquire and continue to hold, or to continue to hold, First Lien Obligations and each First Lien Claimholder shall be deemed conclusively to have relied on such subordination provisions in acquiring and continuing to hold, or in continuing to hold, First Lien Obligations.
(i) Section 9.5 (Subrogation). Section 9.5 (formerly Section 8.5) is hereby amended by adding the following new sentence at the end thereof:
“Notwithstanding anything herein to the contrary, to the extent any indemnification obligation or contingent obligation becomes due and payable under the First Lien Loan Documents after the Discharge of the First Lien Obligations, the Second Lien Collateral Agent and Second Lien Claimholders shall promptly turn over any such amounts to the First Lien Collateral Agent for distribution to the First Lien Claimholders.”
2 Designation of Address for Notices. As of the First Amendment Effective Date, the First Lien Collateral Agent hereby notifies each of the other parties to the Intercreditor Agreement that its address
for notices shall be as follows:
The Bank of New York Mellon
600 East Las Colinas Blvd.
Suite 1300
Irving, TX 75039
Attention: Melinda Valentine/Vice President
Telephone: (972) ###-###-####
Telecopy: (972) ###-###-####
With a copy to (which shall not constitute notice):
McGuire, Craddock & Strother, P.C.
500 North Akard
Suite 3550
Dallas, TX 75201
Attention: Jonathan Thalheimer
Telephone: (214) ###-###-####
Telecopy: (214) ###-###-####
3 Conditions to Effectiveness. This First Amendment shall become effective on and as of the date (the “First Amendment Effective Date”):
.1 The First Lien Credit Agreement Amendment shall have been executed and delivered by the Required Lenders and the other parties thereto and shall have become effective concurrently with this First Amendment;
.2 The Plan shall have been substantially consummated and shall provide for this First Amendment to become effective and this First Amendment shall have been approved by the Bankruptcy Court.
.3 Each of the Company, the Parent, the Notes Issuer, the First Lien Collateral Agent and the Second Lien Collateral Agent shall have executed and delivered this First Amendment.
4 Representations and Warranties. Each of the parties hereto hereby represents and warrants that (i) it has the corporate power and authority, and the legal right, to make, deliver and perform its obligations under this First Amendment and the Intercreditor Agreement; (ii) it has taken all necessary corporate action to authorize the execution, delivery and performance of this First Amendment; (iii) it has duly executed and delivered this First Amendment; and (iv) this First Amendment constitutes a legal, valid and binding obligation of each of the parties hereto, enforceable against each such party in accordance with its terms.
5 Limited Effect. Except as expressly provided hereby, all of the terms and provisions of the Intercreditor Agreement are and shall remain in full force and effect. The amendments contained herein shall not be construed as amendments or waivers of any other provision of the Intercreditor Agreement or for any purpose except as expressly set forth herein or a consent to any further or future action on the part of any of the parties to the Intercreditor Agreement that would require the waiver or consent of any of the other parties to the Intercreditor Agreement.
6 GOVERNING LAW. THIS FIRST AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their officers thereunto duly authorized as of the [ ] day of [ ], 2009.
| THE BANK OF NEW YORK MELLON, | ||
| as First Lien Collateral Agent | ||
| By: |
| |
| Name: | ||
| Title: | ||
| U.S. BANK NATIONAL ASSOCIATION, as Second Lien Collateral Agent | ||
| By: |
| |
| Name: | ||
| Title: | ||
| PRIMUS TELECOMMUNICATIONS GROUP, INCORPORATED | ||||||
| By: |
| |||||
| Name: | ||||||
| Title: | ||||||
| PRIMUS TELECOMMUNICATIONS, INC. | ||
| By: |
| |
| Name: | ||
| Title: | ||
| PRIMUS TELECOMMUNICATIONS INTERNATIONAL, INC. | ||
| By: |
| |
| Name: | ||
| Title: | ||
| TRESCOM INTERNATIONAL, INC. | ||
| By: |
| |
| Name: | ||
| Title: | ||
| TRESCOM U.S.A., INC. | ||
| By: |
| |
| Name: | ||
| Title: | ||
| LEAST COST ROUTING, INC. | ||
| By: |
| |
| Name: | ||
| Title: | ||
| iPRIMUS USA, INC. | ||
| By: |
| |
| Name: | ||
| Title: | ||
| iPRIMUS.COM, INC. | ||
| By: |
| |
| Name: | ||
| Title: | ||
| PRIMUS TELECOMMUNICATIONS IHC, INC. | ||
| By: |
| |
| Name: | ||
| Title: | ||
ANNEX B
FORM OF
AMENDMENT TO COLLATERAL AGREEMENT
FORM OF FIRST AMENDMENT, dated as of , 2009 (this “Amendment”), to the COLLATERAL AGREEMENT, dated as of February 26, 2007 (as amended, supplemented or otherwise modified in writing from time to time, the “Collateral Agreement”), made by PRIMUS TELECOMMUNICATIONS IHC INC., a Delaware corporation (the “Company”), and each of the other Grantors party (together with the Company, the “Grantors”), in favor of U.S. BANK NATIONAL ASSOCIATION, as collateral agent (the “Collateral Agent”).
W I T N E S S E T H:
WHEREAS, the Company and the other Grantors have heretofore executed and delivered an indenture, dated as of February 27, 2007, by and among the Company, the other Grantors, and U.S. Bank National Association, as 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 Company 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 Collateral Agreement shall be amended as set forth herein;
NOW, THEREFORE, the Company and the other Grantors hereby covenant and agree with the Collateral Agent for the equal and proportionate benefit of the Holders as follows:
1 Defined Terms. Unless otherwise noted herein, terms defined in the Collateral Agreement and used herein shall have the meanings given to them in the Collateral Agreement.
2 Amendments to Section 1.1(b) of the Collateral Agreement. The definition of “Obligations” in Section 1.1(b) of the Collateral Agreement is hereby replaced in its entirety with the following: “Obligations”: (i) in the case of the Company, the Company Obligations, (ii) in the case of each Guarantor, its Guarantor Obligations, and (iii) in the case of Primus Telecommunications International, Inc., the PTII Obligations.
.2 The following definition is hereby added to Section 1.1(b) in alphabetical order:
“PTII Obligations”: with respect to PTII, the collective reference to all obligations and liabilities of PTII and the Company which may arise under or in connection with the Indenture or any Collateral Document to which PTII or the Company is a party, in each case whether on account of (a) guarantee obligations, reimbursement obligations, fees, indemnities, costs, expenses or otherwise (including, without limitation, all fees and disbursements of counsel to the Collateral Agent or to any Secured Party that are required to be paid by PTII
or the Company pursuant to the terms of this Agreement, the Indenture or any other Collateral Document) or (b) the unpaid principal of and interest on the Notes and all other obligations and liabilities of the Company to the Collateral Agent or any Secured Party, whether direct or indirect, absolute or contingent, due or to become due, or now existing or hereafter incurred, which may arise under, out of, or in connection with, this Agreement, the Notes, the Indenture, the other Collateral Documents, or any other document made, delivered or given in connection with any of the foregoing, and in each case whether on account of principal, interest, reimbursement obligations, fees, indemnities, cost, expense or otherwise (including, without limitation, all fees and disbursements of counsel to the Collateral Agent or to any other Secured Party that are required to be paid by the Company pursuant to the terms of any of the foregoing agreements).
3 Amendment to Section 7.18. The first sentence of Section 7.18 is deleted and replaced in its entirety with the following:
“Notwithstanding anything herein to the contrary and to the extent not prohibited by the Trust Indenture Act of 1939, the right to receive payments under this Agreement by the Second Lien Collateral Agent or the Holders and the lien and security interest granted to the Second Lien Collateral Agent pursuant to this Agreement and the exercise of any right or remedy by the Second Lien Collateral Agent or the Holders hereunder or under the Indenture are subject to the provisions of the Intercreditor Agreement, dated as of February 26, 2007 (as amended, restated, supplemented or otherwise modified from time to time, the “Intercreditor Agreement”) and the lien and payment subordination provisions contained therein, among Parent, the Company, The Bank of New York Mellon (as successor to Lehman Commercial Paper Inc.), as First Lien Collateral Agent, and U.S. Bank National Association, as Second Lien Collateral Agent, and certain other persons party or that may become party thereto from time to time. In the event of any conflict between the terms of the Intercreditor Agreement and this Agreement, the terms of the Intercreditor Agreement shall govern and control.”
4 Conditions to Effectiveness. This Amendment shall become effective upon its execution by the Company, the other Grantors and the Collateral Agent.
5 Limited Effect. Except as expressly provided hereby, all of the terms and provisions of the Collateral Agreement are and shall remain in full force and effect. The amendments contained herein shall not be construed as a waiver or amendment of any other provision of the Collateral Agreement or for any purpose except as expressly set forth herein or a consent to any further or future action on the part of the Company or any other Grantor that would require the waiver or consent of the Collateral Agent.
6 GOVERNING LAW. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS AMENDMENT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
7 Counterparts. The parties may sign any number of copies of this Amendment. Each signed copy shall be an original, but all of them together represent the same agreement.
8 Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof.
9 Severability. In case any provision in the Collateral Agreement, as amended by this Amendment, shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered by their respective proper and duly authorized officers as of the day and year first above written.
| PRIMUS TELECOMMUNICATIONS HOLDING, INC. | ||
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PRIMUS TELECOMMUNICATIONS, INC. | ||
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PRIMUS TELECOMMUNICATIONS INTERNATIONAL, INC. | ||
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TRESCOM INTERNATIONAL, INC. | ||
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ROCKWELL COMMUNICATIONS CORPORATION | ||
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LEAST COST ROUTING, INC. | ||
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| TRESCOM U.S.A., INC. | ||
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IPRIMUS USA, INC. | ||
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IPRIMUS.COM, INC. | ||
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U.S. BANK NATIONAL ASSOCIATION, as Collateral Agent | ||
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