Exhibit 99.3
EXECUTION COPY
SUPPLEMENTAL INDENTURE
This Supplemental Indenture, dated as of November 15, 2006 (this
"Supplemental Indenture"), among IMPSAT Fiber Networks, Inc., a Delaware
corporation (together with its successors and assigns, the "Company"),
IMPSAT S.A., as guarantor (the "Guarantor"), and The Bank of New York, as
trustee (the "Trustee") under the Indenture.
W I T N E S S E T H:
WHEREAS, the Company, the Guarantor and the Trustee have heretofore
executed and delivered an Indenture, dated as of March 25, 2003 (as
amended, supplemented, waived or otherwise modified, the "Indenture"),
providing for the issuance of an aggregate principal amount of up to
$50,579,000 of 6% Series B Senior Guaranteed Convertible Notes due 2011 of
the Company (the "Securities");
WHEREAS, Section 10.02 of the Indenture provides that the Company and
the Trustee may make certain amendments to the Indenture with the consent
of the Holders of at least a majority in principal amount of the Securities
then outstanding;
WHEREAS, the Company distributed a Consent Solicitation Statement
dated as of November 2, 2006 (the "Consent Solicitation Statement"), in
order to solicit consents (the "Consents") from the Holders to amendments
to the Indenture (the "Amendments");
WHEREAS, Holders of at least a majority in aggregate principal amount
of the Securities outstanding have given and, as of the date hereof, have
not withdrawn their Consents to the Amendments; and
WHEREAS, the execution of this Supplemental Indenture by the parties
hereto is in all respects authorized by the provisions of the Indenture,
the Company has delivered to the Trustee an Officers' Certificate and an
Opinion of Counsel with respect to such authorization, and all things
necessary to make this Supplemental Indenture a valid agreement of the
Company, the Guarantor and the Trustee in accordance with its terms have
been done.
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt of which is hereby acknowledged,
the Company, the Guarantor and the Trustee mutually covenant and agree for
the equal and ratable benefit of the Holders of the Securities as follows:
ARTICLE I
Definitions
SECTION 1.1 Defined Terms. As used in this Supplemental Indenture,
terms defined in the Indenture or in the preamble or recital hereto are
used herein as therein defined. The words "herein," "hereof" and "hereby"
and other words of similar import used in this Supplemental Indenture refer
to this Supplemental Indenture as a whole and not to any particular section
hereof.
ARTICLE II
Effect
SECTION 2.1 Effect. This Supplemental Indenture shall become effective
upon its execution and delivery by the parties hereto. Notwithstanding the
foregoing, the Amendments set forth in Article III below shall only become
operative upon the effectiveness of the merger contemplated by the
Agreement and Plan of Merger, dated as of October 25, 2006, among the
Company, Global Crossing Limited and GC Crystal Acquisition, Inc. (the
"Merger Agreement"). Unless and until such merger occurs the Indenture
shall not be modified or amended as set forth herein. If the Merger
Agreement is terminated, this Supplemental Indenture shall have no further
force or effect.
ARTICLE III
Amendments
SECTION 3.1 Amendments to the Indenture. The Indenture is hereby
amended as follows:
(i) The text of Section 8.02 is hereby amended to read as follows:
"The Company will be deemed to have paid and will be discharged
from any and all obligations in respect of the Securities, and
the provisions of this Indenture will no longer be in effect
with respect to the Securities, and the Trustee, at the expense
of the Company, shall execute proper instruments acknowledging
the same if:
(A) the Company has irrevocably deposited or caused to be
irrevocably deposited with the Trustee (or another trustee
satisfying the requirements of Section 7.10) and conveyed all
right, title and interest for the benefit of the Holders, under
the terms of an irrevocable trust agreement in form and
substance satisfactory to the Trustee as trust funds in trust,
specifically pledged to the Trustee for the benefit of the
Holders as security for payment of the principal of, premium,
if any, and interest, if any, on the Securities, and dedicated
solely to, the benefit of the Holders, in and to (1) money in
an amount, (2) U.S. Government Obligations that, through the
payment of interest, premium, if any, and principal in respect
thereof in accordance with their terms, will provide, not later
than one day before the due date of any payment referred to in
this clause (A), money in an amount or (3) a combination
thereof in an amount sufficient, in the opinion of the Company
expressed in an Officers' Certificate thereof delivered to the
Trustee, to pay and discharge, without consideration of the
reinvestment of such interest and after payment of all federal,
state and local taxes or other charges and assessments in
respect thereof payable by the Trustee, the principal of,
premium, if any, and accrued interest on the outstanding
Securities at Final Maturity of such principal or interest;
provided that (1) such trustee, if any, shall have been
irrevocably instructed to pay such money or the proceeds of
such U.S. Government Obligations to the Trustee, and (2) the
Trustee shall have been irrevocably instructed to apply such
money or the proceeds of such U.S. Government Obligations to
the payment of such principal, premium, if any, and interest
with respect to the Securities; and
(B) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, in each case stating
that all conditions precedent provided for herein relating to
the defeasance contemplated by this Section 8.02 have been
complied with.
Notwithstanding the foregoing, upon compliance with the
conditions set forth above, the Company's and the Guarantor's
obligations in Sections 2.02, 2.03, 2.04, 2.05, 2.06, 2.07,
2.08, 2.09, 2.11, 2.14, 4.01, 4.02, 4.13. 4.19, 4.20, 7.07,
this Article Eight and Article Eleven shall survive unless
otherwise terminated or discharged hereunder until the
Securities are paid in full. Thereafter, only the Company's
obligations in Sections 7.07, 8.04, 8.05 and 8.06 shall
survive.
After any such irrevocable deposit, the Trustee upon request
shall acknowledge in writing the discharge of the Company's and
the Guarantor's obligations under the Securities and this
Indenture except for those surviving obligations in the
immediately preceding paragraph."
(ii) The text of Section 8.07 is hereby amended to read as follows:
"With respect to the determination of the Persons constituting
beneficial owners of Securities and whether any such Person is
an "insider" for purposes of Section 8.03(iv)(E), the Trustee
shall be entitled to receive, and shall be fully protected in
relying upon, an Officers' Certificate."
(iii) Any definitions used exclusively in the provisions of the
Indenture or Securities that are deleted pursuant to this Article III, and
any definitions used exclusively within such definitions, are hereby
deleted in their entirety from the Indenture and the Securities, and all
references in the Indenture and the Securities to paragraphs, Sections,
Articles or other terms or provisions of the Indenture referred to in this
Article III or that have been otherwise deleted pursuant to this
Supplemental Indenture are hereby deleted in their entirety.
(iv) The provisions of this Article III shall become effective only as
set forth in Article II of this Supplemental Indenture.
ARTICLE IV
Miscellaneous
SECTION 4.1 Parties. Nothing expressed or mentioned herein is intended
or shall be construed to give any Person, firm or corporation, other than
the Holders and the Trustee, any legal or equitable right, remedy or claim
under or in respect of this Supplemental Indenture or the Indenture or any
provision herein or therein contained.
SECTION 4.2 Governing Law. This Supplemental Indenture shall be
governed by, and construed in accordance with, the laws of the State of New
York.
SECTION 4.3 Severability Clause. In case any provision in this
Supplemental Indenture 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 and such provision shall be
ineffective only to the extent of such invalidity, illegality or
unenforceability.
SECTION 4.4 Ratification of Indenture; Supplemental Indentures Part of
Indenture. Except as expressly amended hereby, the Indenture is in all
respects ratified and confirmed and all the terms, conditions and
provisions thereof shall remain in full force and effect. This Supplemental
Indenture shall form a part of the Indenture for all purposes, and every
Holder of Securities heretofore or hereafter authenticated and delivered
shall be bound hereby. The Trustee makes no representation or warranty as
to the validity or sufficiency of this Supplemental Indenture or with
respect to the recitals contained herein, all of which recitals are made
solely by the other parties hereto.
SECTION 4.5 Counterparts. The parties hereto may sign one or more
copies of this Supplemental Indenture in counterparts, all of which
together shall constitute one and the same agreement.
SECTION 4.6 Headings. The headings of the Articles and the Sections in
this Supplemental Indenture are for convenience of reference only and shall
not be deemed to alter or affect the meaning or interpretation of any
provisions hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed as of the date first above written.
IMPSAT FIBER NETWORKS, INC.
By: /s/ Xxxxxx Xxxxxx
---------------------------
Name: Xxxxxx Xxxxxx
Title: EVP, Chief Financial
Officer
By: /s/ Xxxxxxxxx Xxxxx
--------------------------
Name: Xxxxxxxxx Xxxxx
Title: SVP, Corporate Finance
& Treasury, Secretary
IMPSAT S.A.
By: /s/ Xxxxxx Xxxxxx
/s/ Xxxxxxxxx Xxxxx
---------------------------
Name: Xxxxxx Xxxxxx and
Xxxxxxxxx Xxxxx
Title: Proxy
THE BANK OF NEW YORK, as Trustee
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Vice President
