EXHIBIT 2.1.1
DATED 18 December 1998
----------------------
SATURN GLOBAL NETWORK
SERVICES HOLDINGS LIMITED (1)
INTERNATIONAL EXCHANGE
NETWORKS LTD. (2)
and
IPC INFORMATION SYSTEMS, INC. (3)
----------------------------
DEED
constituting Unsecured Guaranteed Subordinated
Loan Notes 1999/2000
----------------------------
Xxxxxx Xxxx
London
THIS DEED is dated 18 December, 1998 and made BETWEEN:
(1) SATURN GLOBAL NETWORK SERVICES HOLDINGS LIMITED, a company incorporated in
England and Wales with registered no. 2176144 whose registered office is at
Lloyds Xxxxxxxx, 0 Xxxxxxxxx Xxxxxx, Xxxxxx Xx 0XX ("Saturn");
(2) INTERNATIONAL EXCHANGE NETWORKS LTD, a company incorporated in the State of
Delaware, USA, whose principal place of business is at Wall Street Plaza,
88 Pine Street, New York, New York 1005, USA ("IXNet"); and
(3) IPC INFORMATION SYSTEMS, INC. a company incorporated in the State of
Delaware, USA, whose principal place of business is at Wall Street Plaza,
88 Pine Street, New York, New York 1005, USA ("IPC").
WHEREAS:
(A) Saturn by Resolution of a duly authorized committee of its Board of
Directors passed on 18th December 1998 in exercise of the powers conferred
on the Directors by the Memorandum and Articles of Association has created
Loan Notes 1999/2000 (the "Notes") and has determined to constitute the
same in manner hereinafter appearing;
(B) IPC has issued 10 7/8% Senior Discount Notes due 2008 pursuant to an
indenture dated as of 30th April, 1998 and supplemented by the First
Supplemental Indenture dated as of 30th September, 1998, made between IPC
as Issuer and United States Trust Company of New York as Trustee;
(C) IPC has a five year secured revolving credit facility of up to $55,000,000
made pursuant to a credit agreement dated as of 30th April, 1998, as
amended, made between IPC (1), IPC Funding Corp. (2), the Initial Lenders
(as defined therein) (3), the Initial Issuing Bank (as defined therein)
(4), Xxxxxx Xxxxxxx Senior Funding, Inc. as Syndication Agent and Arranger
(5), Xxxxxxx Sachs Credit Partners L.P. as Documentation Agent (6) and
General Electric Capital Corporation as Administrative Agent and Collateral
Agent (together with any subsequent Administrative Agent, hereinafter
referred to as the "Agent") (7);
(D) IXNet and IPC have agreed to indemnify each Noteholder (as defined below)
in the manner contained in the Conditions to the Notes.
NOW THIS DEED WITNESSES as follows:
1 Definitions
-----------
In this Deed and each Note:
"Credit Agreement" means the credit agreement referred to in Recital (C)
and includes that agreement as amended, restated, supplemented, increased
or otherwise modified or renewed, replaced or refinanced from time to time
provided and to the extent only that entry into
1
and/or performance of such agreement does not breach Section 4.03 of the
indenture referred to in Recital (B) in its original form (as amended by
the First Supplemental Indenture referred to in such Recital) as at the
date hereof.
2 Issue of Notes and application of proceeds
------------------------------------------
2.1 Saturn may issue Notes in denominations of (Pounds)1 or more, up to a
maximum aggregate principal amount of (Pounds)3,244,466.64. The Notes shall
be issued on the terms contained in this Deed and in the Certificate and
Conditions appearing in schedule 1 hereto and a "Noteholder" is a person
entered in the register as the holder of any Note. The proceeds of issue
thereof shall be receivable by Saturn and shall be applicable as the
Directors in their absolute discretion shall determine.
2.2 Every Noteholder shall be entitled to receive free of charge one
Certificate for the Note held by him but so that joint Noteholders shall be
entitled to only one Certificate in respect of the Note held jointly by
them which Certificate shall be delivered to that one of the joint
Noteholders whose name stands first in the register of Noteholders.
3 Company to maintain Register
----------------------------
Saturn shall at all times keep at its principal place of business in London
or at such other place as may be approved by the Noteholder(s) an accurate
register of the Notes showing the number(s) of the issued Note(s), the
name(s) and address(es) of the Noteholders from time to time, the nominal
amount of Note(s) held by every Noteholder and the dates of issue of such
Note(s).
4 Counterparts
------------
This Deed may be executed in any number of counterparts, all of which taken
together shall constitute one and the same instrument. Any party to this
Deed may enter into this Deed by executing any such counterpart.
5 Notices
-------
Any notice or other document shall be given to Saturn (with a copy to IPC
and IXNET by registered mail or confirmed facsimile) or each Noteholder
either by sending it by post in a first-class prepaid envelope or by
delivering it to its registered office. Any notice so given shall be deemed
to have been served on the day following that on which it is posted.
6 Proper Law
----------
6.1 This Deed and each Note is governed by English law. The parties irrevocably
submit to the jurisdiction of the English courts in relation to any matter
arising in connection with this Deed and any Note. A party may, however,
bring proceedings in connection with this Deed and any Note in any court of
competent jurisdiction. The Indemnifiers irrevocably appoint Titmuss Sainer
Dechert at present of Xx. 0 Xxxxxxxxx' Xxx, Xxxxxx XX0X 0XX, Attention:
2
Head of Business Law Department, to receive on their behalf process issued
out of the English courts in connection with this Agreement.
6.2 Each party to this Deed and each Noteholder hereby expressly waives any
right to a trial by jury in any action or proceeding to enforce or defend
any rights under this Deed or the Note.
IN WITNESS whereof this Deed has been executed the day and year first above
written.
3
Schedule 1
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Form of Note Certificate
------------------------
CERTIFICATE NO. AMOUNT
(Pounds)
SATURN GLOBAL NETWORK SERVICES
HOLDINGS LIMITED
(Incorporated in England with registered No. 2176144)
Unsecured Guaranteed Subordinated Loan Notes 1999/2000
Issued pursuant to the Company's Memorandum
and Articles of Association
and created pursuant to a Resolution of the Board of Directors
passed on 18th December 1998
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THIS IS TO CERTIFY that
(the "Noteholder(s)")
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of
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is/are the holder(s) of (Pounds) of the above-mentioned Notes which are
constituted by a Deed dated l8th December 1998 made between Saturn Global
Network Services Holdings Limited ("Saturn"), International Exchange Networks
Ltd. ("IXnet") and IPC Information Systems, Inc. ("IPC"). The Notes are issued
subject to and with the benefit of the provisions contained in the Deed and the
Conditions endorsed hereon. Expressions defined in the Deed shall have the same
meaning when used in this Certificate and Conditions. The Notes together with
the Deed are hereinafter referred to as the "Note Documents", IXNet and IPC are
hereinafter referred to as the "Indemnifiers" and Saturn, IXNet and IPC as the
"Obligors".
EXECUTED and DELIVERED as a DEED )
by SATURN GLOBAL NETWORK )
SERVICES HOLDINGS LIMITED )
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Director
----------------------------
Director/Secretary
4
EXECUTED and DELIVERED as a DEED )
by INTERNATIONAL EXCHANGE )
NETWORKS, LTD. )
----------------------------
Authorized Officer
----------------------------
Authorized Officer
EXECUTED and DELIVERED as a DEED )
by IPC INFORMATION SYSTEMS, INC. )
----------------------------
Authorized Officer
----------------------------
Authorized Officer
EXECUTED and DELIVERED as a DEED )
by MARSHALLS 106 LIMITED )
----------------------------
Director
----------------------------
Director/Secretary
EXECUTED and DELIVERED as a DEED )
by GENERAL ELECTRIC CAPITAL )
CORPORATION as ADMINISTRATIVE )
AGENT )
----------------------------
Authorized Signatory
5
The Conditions
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1 Redemption
----------
Saturn will repay the principal amount outstanding under this Note in 24
equal monthly instalments of (Pounds) 135,186.11. The first payment is to
be made on 29th, January 1999 (with each subsequent instalment, subject to
Condition 5.2 below, payable on the last day of each month thereafter) and
the last payment shall be made on 29th December 2000 (the "Repayment
Date").
2 Interest for late payment
-------------------------
2.1 If Saturn fails to pay any amount payable under this Note on the due date
for payment, it will pay interest on that amount from the due date until
the date of payment. Interest shall be paid on (i) the last day of the
calendar month in which the due date fell and on the last day of each
subsequent calendar month or (ii) if earlier, on the date on which the
relevant amount payable is paid in full and if not so paid it shall be
compounded on the last day of the relevant calendar month.
2.2 Interest shall be calculated by applying a rate of 3.0 per cent per annum
over the Sterling base lending rate of Barclays Bank plc in force from time
to time to:
(a) the Notional Principal Amount of each instalment which is due but
unpaid; and
(b) in the event of a request for repayment following an Event of Default
under Condition 7, the aggregate of all Notional Principal Amounts in
respect of each unpaid instalment (but so that there should be no
double counting with Condition 2.2(a)).
2.3 The Notional Principal Amount of an instalment is the amount set out in
respect of that instalment in the schedule.
3 Indemnity
---------
The Indemnifiers jointly and severally undertake to procure that Saturn
will perform all of its obligations under this Note; and, subject to
Condition 4, they jointly and severally agree to indemnify the
Noteholder(s) against all liabilities, losses and expenses of whatever
nature which any of them may incur or sustain as a result of any failure by
Saturn to do so. The Indemnifiers further agree that each Noteholder is at
liberty to compound with or grant indulgence or relief to Saturn or to any
other person, or to vary this Note, or to do any other matter or thing
which, but for this provision, might exonerate either of them, without in
any way prejudicing or affecting its rights against them.
4 Subordination
-------------
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4.1 For so long as an Event of Default (as that expression is defined in the
Credit Agreement) has occurred and is continuing, unremedied or unaided
under the Credit Agreement, none of the Obligors shall make any payment
under this Note to the Noteholder(s) and no Noteholder may take any action
to enforce its rights under or accelerate this Note provided that if:
(a) there is an acceleration of the entire indebtedness under the Credit
Agreement, the Noteholder(s) may, subject to Condition 4.2, enforce
their rights under this Note except to the extent that such
enforcement is inconsistent with the enforcement of the rights of the
agents (in their capacity as such) on behalf of the Lender Parties (as
defined in the Credit Agreement) and the lenders under the Credit
Agreement; and/or
(b) an event of default under Condition 7(b) and/or (c) has occurred, the
Noteholder(s) may only, subject to Condition 4.2, make a claim as an
unsecured creditor in the insolvency, winding-up, bankruptcy or
liquidation of any Obligor and take any and all steps necessary to
preserve that claim or ranking.
Notwithstanding any term of this Note postponing, subordinating or
preventing any payment by any Obligors under this Note or the Deed, as
between the Obligors and the Noteholder(s), the relevant payment obligation
shall be deemed to remain due, owing and payable in accordance with the
terms of this Note and the Deed in order that interest and indemnity
payments will accrue thereon in accordance with the terms of this Note and
the Deed.
4.2 In the event that any payment is made in the circumstances contemplated in
Condition 4.1, either by the Obligors or otherwise, including by reason of
or in connection with any insolvency, winding-up, bankruptcy or liquidation
proceedings relating to any Obligors (and notwithstanding that such payment
results from an action which is permitted under Condition 4.1(a) or (b)),
the Noteholder(s) shall receive such payment in trust for and turn over
such payment to General Electric Capital Corporation, or subsequent
Administrative Agent, on behalf of the Lenders under the Credit Agreement.
4.3 The limitation on the exercise of the Noteholder(s) rights and performance
of the Obligors' obligations under Conditions 4.1 and 4.2 shall cease to
apply in relation to any continuing Event of Default (other than an Event
of Default of the type described in Section 6.01(f) of the Credit Agreement
as in force as at the date hereof) if, on the expiry of 120 days from the
date on which that Event of Default first occurred, the entire indebtedness
under the Credit Agreement has not been accelerated.
4.4 The Lender Parties and Agents (as defined in the Credit Agreement) may
enforce the provisions of this Condition 4 directly in their own name.
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5 Payments
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5.1 All payments to the Noteholder(s) under this Note shall be made in full
(without any withholding or other deduction) in Sterling in immediately
available and freely transferable funds on the due date to such account as
the Noteholder may specify. Subject to Condition 8.1, if an Obligor is
compelled by law to make any deduction or withholding it will pay the
relevant Noteholder(s) such additional amounts as are required to ensure
that after the making of such deduction or withholding the Noteholder
receives on the relevant date and retains (free from any liability) the
amount which would have been received had no such withholding or deduction
been required.
5.2 If the date for payment of any amount due in respect of any Note is not a
day (a "Business Day") on which banks are open for business in London and
New York, then such payment shall be made on the next succeeding day which
is a Business Day. No adjustment will be made to the payment in respect of
any such modification of the date on which payment is made.
6 Representations and Warranties
------------------------------
6.1 Each Obligors (in respect of itself only) hereby represents and warrants to
the Noteholder(s) that at the date of this Note:
(a) Saturn is a company duly incorporated in England and Wales, IPC and
IXNet are duly incorporated in the State of Delaware, USA and each
Obligors has full power and authority to execute, deliver and perform
its obligations under the Note Documents;
(b) the execution, delivery and performance of the Note Documents has not
resulted, nor will result, in a breach of any provision of, or
constitute a default (so that the same could have a Material Adverse
Effect as defined in Condition 6.2) under (i) each Obligors's
constitutional documents or (ii) any statute, law, order, rule or
regulation of any Governmental Authority (as defined in Condition 6.2)
applicable to it as at the date hereof;
(c) each of the Note Documents has been duly and validly authorized,
executed and delivered by the Obligors and is the legal, valid and
binding obligations of each Obligor enforceable against each Obligor
in accordance with its terms, subject to any applicable bankruptcy,
insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or similar law
affecting creditors' rights generally;
(d) no registration with, or consent or approval of, or any other action
by, any person or Governmental Authority is required in connection
with the execution, delivery and performance of each of the Note
Documents by the Obligors;
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(e) no proceedings have been commenced or, to the best of each Obligor's
knowledge, are pending or threatened against or affecting such Obligor
before any Governmental Authority which, in aggregate and if adversely
determined, could materially and adversely affect the rights, title
and interest of each Obligor under the Note Documents.
6.2 In Condition 6.1:
"Governmental Authority" means any federal, state or other governmental
agency or body, authority, administrative or regulatory body, arbitrator,
court or other tribunal, foreign or domestic; and
"Material Adverse Effect" means a material adverse effect on (a) the
business, condition, operations, performance, assets, liabilities or
prospects of the Obligors taken as a whole, (b) the rights and remedies of
any Noteholder under either of the Note Documents or (c) the ability of any
Obligor to perform its obligations under either of the Note Documents.
7 Events of Default
-----------------
Subject to Condition 4, a Noteholder may require immediate repayment of
this Note in any of the following circumstances:
(a) if any Obligor is in breach of any of Conditions 1, 5 and/or 6;
(b) if any Obligor becomes insolvent or generally unable to pay its debts
as they become due;
(c) if any Obligor is dissolved or enters into bankruptcy, reorganization
liquidation, administration, administrative receivership,
receivership, a voluntary arrangement, or scheme of arrangement with
creditors, any analogous or similar procedure in any jurisdiction
other than England or any form of procedure relating to insolvency,
reorganization or dissolution in any jurisdiction; or a petition is
presented or other step is taken by any person with a view to any of
those things unless dismissed within 30 days;
(d) if an Event of Default (as defined in the Credit Agreement), or if an
event (having a similar effect in any amended version of the Credit
Agreement), occurs and is continuing.
8 Transfer
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8.1 Subject to Condition 8.2, a Noteholder may transfer, in whole or in part,
the benefit of this Note and its rights hereunder to any third party
without the consent of the Obligors provided that no Obligor shall be
liable to make any increased payment hereunder which it would not have
incurred but for such transfer under any circumstances.
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8.2 Notes may only be transferred in minimum amounts, or integral multiples, of
(Pounds)500,000 and there shall not at any time be more than 4 Noteholders.
Accordingly, Saturn shall not enter more than 4 Noteholders on the register
to be maintained by it pursuant to clause 3 of the Deed at any one time.
Other than Marshalls 106 Limited, each Noteholder shall be a financial
institution and, at the time it becomes a Noteholder, shall have (by
reference to its latest audited accounts) or, if part of a group, its
ultimate parent shall have (by reference to the latest consolidated audited
accounts of such group) shareholders funds of at least US $250,000,000 or
its equivalent in other currencies.
8.3 To transfer this Note, the Noteholder(s) shall deliver to Saturn the
relevant Certificate together with a form of transfer, executed by the
transferor (such form to include the name(s) and address(es) of the
transferee(s) and the amount(s) of Note(s) transferred). Upon receipt by
Saturn of the same, it shall amend the register in accordance with the form
of transfer. Title to this Note shall pass by such registration in the
register.
8.4 Saturn shall, within 7 business days after each registration, deliver to
the transferee a new Certificate for the Note(s) transferred and deliver to
the transferor a new Certificate for any Note(s) retained by the
transferor.
9 Surrender of Note
-----------------
9.1 Subject to Condition 9.2, upon receipt in full of all amounts due under
this Note, this Note shall be cancelled and the Noteholder(s) shall return
it to Saturn.
9.2 Any release, cancellation or discharge of this Note shall be conditional
upon no disposition or payment to the Noteholder(s) in respect of an
Obligors's obligations hereunder being void, set aside or ordered to be
refunded for any reason.
10 No set-off
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10.1 Each Noteholder hereby waives any right (whether in law, equity or
otherwise)to set-off any moneys owing by it to any Obligor against any
amount payable under this Note.
10.2 Each Obligor hereby waives any right (whether in law, equity or otherwise)
to set-off any amount payable under this Note against any moneys owing to
it from any Noteholder.
11 Counterparts
------------
This Note may be executed in any number of counterparts, all of which taken
together shall constitute one and the same instrument. Any party to this
Note may enter into this Note by executing any such counterpart.
10
12 Notices
-------
Any notice or other document may be given hereunder either personally or by
sending it by post in a first-class prepaid envelope or by delivering it to
him at the recipient's registered address. In the case of joint registered
holders of any Note a notice given to the Noteholder whose name stands
first in the register in respect of such Note shall be sufficient notice to
all the joint holders. Any notice so given shall be deemed to have been
served on any day following that on which it is posted.
13 Proper Law
----------
13.1 This Note is governed by English law. The parties irrevocably submit to the
jurisdiction of the English courts in relation to any matter arising in
connection with this Note. A party may, however, bring proceedings in
connection with this Note in any court of competent jurisdiction. The
Indemnifiers irrevocably appoint Titmuss Sainer Dechert at present of Xx. 0
Xxxxxxxxx' Xxx, Xxxxxx XX0X 0XX, Attention: Head of Business Law
Department, to receive on their behalf process issued out of the English
courts in connection with this Agreement.
13.2 Each party to this Note and each Noteholder hereby expressly waives any
right to a trial by jury in any action or proceeding to enforce or defend
any rights under this Note.
11
The Schedule
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Instalment Due end Notional Principal
Number of Amount ((Pounds))
-----------------------------------------------------
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1 January, 1999 113,263.29
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2 February, 1999 114,101.40
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3 March, 1999 114,945.71
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4 April, 1999 115,796.26
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5 May, 1999 116,653.11
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6 June, 1999 117,516.30
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7 July, 1999 118,385.00
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8 August, 1999 119,261.89
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9 September, 1999 120,144.38
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10 October, 1999 121,033.41
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11 November, 1999 121,929.01
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12 December, 1999 122,831.24
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13 January, 2000 123,740.15
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14 February, 2000 124,655.78
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15 March, 2000 125,578.18
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16 April, 2000 126,507.42
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17 May, 2000 127,443.52
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18 June, 2000 128,386.56
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19 July, 2000 129,336.57
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20 August, 2000 130,293.62
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21 September, 2000 131,257.74
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22 October, 2000 132,229.00
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23 November, 2000 133,207.44
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24 December, 2000 134,193.13
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EXECUTED and DELIVERED as a DEED )
by SATURN GLOBAL NETWORK )
SERVICES HOLDINGS LIMITED )
--------------------------
Director
--------------------------
Director/Secretary
EXECUTED and DELIVERED as a DEED )
by INTERNATIONAL EXCHANGE )
NETWORKS, LTD. )
--------------------------
Authorized Officer
--------------------------
Authorized Officer
EXECUTED and DELIVERED as a DEED )
by IPC INFORMATION SYSTEMS, INC. )
--------------------------
Authorized Officer
--------------------------
Authorized Officer
EXECUTED and DELIVERED as a DEED )
by MARSHALLS 106 LIMITED )
--------------------------
Director
--------------------------
Director/Secretary
EXECUTED and DELIVERED as a DEED )
by GENERAL ELECTRIC CAPITAL )
CORPORATION as ADMINISTRATIVE )
AGENT )
--------------------------
Authorized Signatory
13