Exhibit 4.3
SUPPLEMENTAL INDENTURE
SUPPLEMENTAL INDENTURE dated as of January 20, 1999 (the
"Supplemental Indenture") between PRIMUS TELECOMMUNICATIONS GROUP, INCORPORATED,
a Delaware corporation, as issuer (the "Company"), and FIRST UNION NATIONAL
BANK, a banking association organized and existing under the laws of the United
States, as trustee (the "Trustee").
W I T N E S S E T H :
WHEREAS, the Company and the Trustee are parties to the Indenture
dated as of August 4, 1997 (as the same has been amended, and may hereafter be
further amended, supplemented or otherwise modified from time to time, the
"Indenture") relating to the 11-3/4% Senior Notes due 2004 (the "Notes") of the
Company;
WHEREAS, the Board of Directors of the Company has adopted a
resolution authorizing the Company to enter into this Supplemental Indenture;
WHEREAS, Section 902 of the Indenture authorizes the Company and the
Trustee, in accordance with the terms thereof, to enter into this supplemental
indenture with the consent of the Holders of not less than a majority in
principal amount of the Notes; and
WHEREAS, the Company has requested the Trustee and the Trustee has
agreed to join in the execution of this Supplemental Indenture pursuant to
Section 902 of the Indenture on the terms and subject to the conditions set
forth below;
NOW, THEREFORE, in consideration of the promises and mutual
agreements herein contained, the Company and the Trustee mutually covenant and
agree for the equal and proportionate benefit of the Holders from time to time
of the Notes as follows:
ARTICLE 1 AMENDMENTS TO THE INDENTURE.
1.1. Amendment to Section 101 (Definitions). Section 101 of the
Indenture is hereby amended by:
(a) deleting the percentage amount "5.0%" from clause (vii) of
the definition of Permitted Investment, and substituting therefor "10.0%";
(b) deleting in its entirety clause (xxi) from the definition
of Permitted Liens and substituting therefor the following clauses (xxi) and
(xxii):
"(xxi) Liens on the property or assets of a Restricted Subsidiary
securing Indebtedness of such Subsidiary which Indebtedness is permitted
under the Indenture; and (xxii) Liens securing Indebtedness under Credit
Facilities incurred in compliance with clauses (i) and (ii) of paragraph
(b) of Section 1011."
1.2. Amendment to Section 1011 (Limitation on Indebtedness). Section
1011 of the Indenture is hereby amended by deleting such Section in its
entirety, and substituting therefor, the following new Section 1011:
"SECTION 1011. Limitation on Indebtedness.
(a) The Company will not, and will not permit any of its Restricted
Subsidiaries to, Incur any Indebtedness (other than the Notes and Existing
Indebtedness); provided, however, that the Company may Incur Indebtedness, and
any Restricted Subsidiary may Incur Acquired Indebtedness, if immediately
thereafter the ratio of (i) the aggregate principal amount (or accreted value,
as the case may be) of Indebtedness of the Company and its Restricted
Subsidiaries on a consolidated basis outstanding as at the Transaction Date to
(ii) the Pro Forma Consolidated Cash Flow 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 5.0 to 1.
(b) Notwithstanding the foregoing, the Company and (except for
Indebtedness under subsections (v) and (vii) below) any Restricted Subsidiary
may Incur each and all of the following:
(i) Indebtedness of the Company or any Restricted Subsidiary
under one or more Credit Facilities in an aggregate principal amount at any one
time outstanding not to exceed the greater of (a) $50 million or (b) 65% of
Eligible Accounts Receivable, subject to any permanent reductions required by
any other terms of the Indenture;
(ii) Indebtedness (including Guarantees) Incurred by the
Company or a Restricted Subsidiary after the Closing Date to finance the cost
(including the cost of design, development, construction, acquisition,
installation or integration) of equipment used in the telecommunications
business or ownership rights with respect to indefeasible rights of use or
minimum investment units (or similar ownership interests) in domestic or
transnational fiber optic cable or other transmission facilities, in each case
purchased or leased by the Company or a Restricted Subsidiary after the Closing
Date (including acquisitions by way of Capitalized Leases and acquisitions of
the Capital Stock of a Person that becomes a Restricted Subsidiary to the extent
of the Fair Market Value (as determined in good faith by the Board of Directors,
whose determination shall be conclusive and evidenced by a Board Resolution) of
such equipment, ownership rights or minimum investment units so acquired,
excluding the portion of the Fair Market Value of such Capital Stock
attributable to property other than such equipment, ownership rights or minimum
investment units);
(iii) Indebtedness of any Restricted Subsidiary to the Company
or Indebtedness of the Company or any Restricted Subsidiary to any other
Restricted Subsidiary; provided that any subsequent issuance or transfer of any
Capital Stock which results in any such Restricted Subsidiary ceasing to be a
Restricted Subsidiary or any subsequent transfer of such Indebtedness not
permitted by this clause (iii) (other than to the Company or another Restricted
Subsidiary) shall be deemed, in each case, to constitute the Incurrence of such
Indebtedness, and provided further that Indebtedness of the Company to a
Restricted Subsidiary must be subordinated in right of payment to the Notes;
(iv) Indebtedness of the Company or a Restricted Subsidiary
issued in exchange for, or the net proceeds of which are used to refinance or
refund, then outstanding Indebtedness of the Company or a Restricted Subsidiary,
other than Indebtedness Incurred under clauses (i), (iii), (vi), (viii) and (ix)
of this paragraph,
-2-
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, 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, (B) in case
the Indebtedness to be refinanced is subordinated in right of payment to the
Notes, 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 subordinate in right of payment to the Notes at
least to the extent that the Indebtedness to be refinanced is subordinated to
the Notes and (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
Indebtedness of the Company be refinanced by means of any Indebtedness of any
Restricted Subsidiary pursuant to this clause (iv);
(v) Indebtedness of the Company not to exceed, at any one time
outstanding, (A) 2.00 times the Net Cash Proceeds received by the Company after
May 18, 1998 from the issuance and sale of its Common Stock (other than
Redeemable Stock) to a Person that is not a Subsidiary of the Company, to the
extent such Net Cash Proceeds have not been used pursuant to clause (C)(2) of
the first paragraph or clauses (iii) or (iv) of the second paragraph of Section
1012 to make a Restricted Payment plus (B) 1.50 times the Fair Market Value (as
determined in good faith by the Board of Directors, whose determination shall be
conclusive and evidenced by a Board Resolution) of property (other than cash and
cash equivalents) used in a Permitted Business or common equity interests in a
Person (the property and assets of such Person consisting primarily of
telecommunications assets) that becomes a Restricted Subsidiary (such Fair
Market Value being that of the common equity interests received pursuant to the
transaction resulting in such Person becoming a Restricted Subsidiary), and, in
each case, received by the Company after May 18, 1998 from the issuance or sale
of its Common Stock (other than Redeemable Stock) to a Person that is not a
Subsidiary of the Company to the extent such sale of Common Stock has not been
used pursuant to clauses (iii) and (iv) of the second paragraph of Section 1012
to make a Restricted Payment; provided that such Indebtedness does not mature
prior to the Stated Maturity of the Notes and the Average Life of such
Indebtedness is longer than that of the Notes;
(vi) Indebtedness of the Company or any Restricted Subsidiary
(A) in respect of performance, surety or appeal bonds or letters of credit
supporting trade payables, in each case provided in the ordinary course of
business, (B) under Currency Agreements and Interest Rate Agreements; provided
that such agreements (a) are designed solely to protect the Company or any
Restricted Subsidiary against fluctuation in foreign currency exchange rates or
interest rates and (b) do not increase the Indebtedness of the obligor
outstanding at any time other than as a result of fluctuations in foreign
currency exchange rates or interest rates or by reason of fees, indemnities and
compensation payable thereunder; and (C) arising from agreements providing for
indemnification, adjustment of purchase price or similar obligations, or from
Guarantees or letters of credit, surety bonds or performance bonds securing any
obligations of the Company or any of its Restricted Subsidiaries pursuant to
such
-3-
agreements, in any case Incurred in connection with the disposition of any
business, assets or Restricted Subsidiary of the Company (other than Guarantees
of Indebtedness Incurred by any Person acquiring all or any portion of such
business, assets or Restricted Subsidiary for the purpose of financing such
acquisition), in a principal amount not to exceed the gross proceeds actually
received by the Company or any Restricted Subsidiary in connection with such
disposition;
(vii) Indebtedness of the Company, to the extent that the net
proceeds thereof are promptly (A) used to repurchase Notes tendered in a Change
of Control Offer or (B) deposited to defease all of the Notes as set forth in
Article XIII;
(viii) Indebtedness of a Restricted Subsidiary represented by
a Guarantee of the Notes and any other Indebtedness of the Company permitted by
and made in accordance with Section 1018;
(ix) Indebtedness of the Company or any Restricted Subsidiary
not otherwise permitted hereunder in an aggregate principal amount which, when
aggregated with the principal amount of all other Indebtedness then outstanding
and incurred pursuant to this clause (ix), does not exceed $200 million at any
one time outstanding, provided that to the extent that the Indebtedness
outstanding and incurred pursuant to this clause (ix) exceeds $125 million, such
excess Indebtedness must be unsecured Indebtedness of the Company and must be
expressly made, by its terms or the terms of any agreement or instrument
pursuant to which such Indebtedness is issued or remains outstanding, (A)
subordinate in right of payment to the Notes or (B) pari passu with the Notes
and, in the case of such pari passu Indebtedness, must mature after the Stated
Maturity of the Notes and have an Average Life longer than that of the Notes;
and
(x) Acquired Indebtedness.
(c) Notwithstanding any other provision of this Section 1011, the
maximum amount of Indebtedness that the Company or a Restricted Subsidiary may
Incur pursuant to this Section 1011 shall not be deemed to be exceeded with
respect to any outstanding Indebtedness due solely to the result of fluctuations
in the exchange rates of currencies.
(d) For purposes of determining any particular amount of
Indebtedness under this Section 1011, Guarantees, Liens or obligations with
respect to letters of credit supporting Indebtedness otherwise included in the
termination of such particular amount shall not be included. For purposes of
determining compliance with this Section 1011, (A) in the event that an item of
Indebtedness meets the criteria of more than one of the types of Indebtedness
described in the above clauses, the Company, in its sole discretion, shall
classify and from time to time may reclassify such item of Indebtedness and only
be required to include the amount and type of such Indebtedness in one of such
clauses and (B) the principal amount of Indebtedness issued at a price that is
less than the principal amount thereof shall be equal to the amount of the
liability in respect thereof determined in conformity with GAAP."
1.3. Amendment to Section 1012 (Limitation on Restricted Payments). Section 1012
of the Indenture is hereby amended by deleting the dollar amount "$2.5 million"
in clause (vii) of the second paragraph thereof, and substituting therefor,
"$5.0 million".
-4-
ARTICLE 2 MISCELLANEOUS.
2.1. The Trustee. The recitals contained herein shall be taken as the statements
of the Company and the Trustee shall not assume responsibility for, or be liable
in respect of, the correctness thereof. The Trustee makes no representation as
to, and shall not be liable or responsible for, the validity or sufficiency of
this Supplemental Indenture.
2.2. Limited Effect. Except as expressly amended hereby, all of the provisions,
covenants, terms and conditions of the Indenture are ratified and confirmed, and
shall remain in full force.
2.3. Counterparts; Facsimile Signatures. This Supplemental Indenture may be
executed by one or more parties hereto on any number of separate counterparts,
including by facsimile, and all of said counterparts taken together shall be
deemed to constitute one and the same instrument.
2.4. GOVERNING LAW. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed, all as of the date first above written.
PRIMUS TELECOMMUNICATIONS
INCORPORATED GROUP,
Attest: /s/ Robert Stankey By: /s/ John DePodesta
------------------------ ---------------------------
Name: Robert Stankey Name: John DePodesta
Title: Secretary Title: Executive
Vice President
FIRST UNION NATIONAL BANK
Attest:_________________________ By:___________________________
Name: Name:
Title: Title:
-5-