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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 1 TO FORM T-3
FOR APPLICATIONS FOR QUALIFICATION OF INDENTURES
UNDER THE TRUST INDENTURE ACT OF 1939
GLOBIX CORPORATION
(Name of Applicant)
139 Centre Street, New York, New York 10013
(Address of principal executive offices)
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SECURITIES TO BE ISSUED UNDER THE INDENTURE TO BE QUALIFIED:
TITLE OF CLASS AMOUNT
11% Senior Secured Notes Due 2008 Aggregate principal amount of
$182,168,449
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Approximate date of proposed public offering:
As soon as practicable after the Effective Date of the
Corporation's Joint Prepackaged Plan of Reorganization
Gregory P. Leahy, Esq.
c/o Globix Corporation
General Counsel and Corporate Secretary
139 Centre Street
New York, New York 10013
(212) 334 8500
With copies to:
Christopher M. Gores, P.C. Arnold N. Bressler, Esq.
Akin, Gump, Strauss, Hauer & Feld, L.L.P. Milberg Weiss Bershad Hynes & Lerach LLP
1700 Pacific Avenue, Suite 4100 One Pennsylvania Plaza
Dallas, TX 75201 New York, NY 10019
(212) 969-2800 (212) 594 5300
Explanatory Note:
This Amendment No. 1 to Form T-3 is being filed solely for the purposes
of (i) amending the description of the "Directors and Executive Officers" under
item 4(b), (ii) amending the description of "Events of Default; Withholding of
Notice" under Item 8(a), (iii) amending the description of "Release of Any Note
Collateral Subject to the Lien of the Indenture" under Item 8(c), (iv) amending
the description of "The Evidence Required to Be Furnished by the Obligor to the
Trustee as to Compliance with the Conditions and the Covenants Provided for in
the Indenture" under Item 8(e), and (v) providing the executed Indenture, dated
as of April 23, 2002.
GENERAL
Item 4(b). DIRECTORS AND EXECUTIVE OFFICERS.
The following table sets forth the names of, and all offices held by, all
current executive officers and directors (as defined in Sections 303(5) and
303(6) of the TIA, respectively) of the Corporation. The mailing address for
each executive officer and director listed below is c/o Globix Corporation, 139
Centre Street, New York, New York 10013.
Name Position
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Marc H. Bell Non-Executive Chairman of the Board
Peter L. Herzig Vice Chairman of the Board
Peter K. Stevenson President, Chief Executive Officer and Director
Shawn P. Brosnan Senior Vice President and Corporate Controller
Gregory P. Leahy General Counsel and Corporate Secretary
John D. McCarthy Acting Chief Financial Officer
Anthony L. Previte Senior Vice President and Chief Technology Officer
Lord Anthony St. John President of Worldwide Sales and Marketing
Jared Abbruzzese Director
Peter S. Brodsky Director
Steven Lampe Director
Steven G. Singer Director
Brandon Stranzl Director
Item 8. ANALYSIS OF INDENTURE PROVISIONS.
The following is a general description of certain provisions of the
Indenture, dated as of April 23, 2002. The description is qualified in its
entirety by reference to the Indenture filed as Exhibit T3-C hereto.
Capitalized terms used below and not defined herein have the meanings given
to such terms in the Indenture.
(a) EVENTS OF DEFAULT; WITHHOLDING OF NOTICE
The "Events of Default" set forth in the Indenture, dated as of
April 23, 2002, are as follows:
(1) failure to pay principal of (or premium, if any, on) New Notes when
due (whether at Stated Maturity or upon acceleration, optional or mandatory
redemption, required repurchase or otherwise);
(2) failure to pay interest on New Notes when due, and in the case of
cash interest, such default continues for a period of 30 days;
(3) default in the payment of principal and interest on New Notes
required to be purchased pursuant to an Offer to Purchase pursuant to Section
1015 or 1016 of the Indenture when due and payable;
(4) failure to perform or comply with the provisions contained in Article
Eight of the Indenture;
(5) failure to perform any other covenant or agreement of the Corporation
or any Subsidiary Guarantor under the Indenture, the New Notes or the Security
Documents and such failure continues for 60 days after written notice to the
Corporation by the Trustee or to the Corporation and the Trustee by the Holders
of at least 25% in aggregate principal amount of outstanding New Notes;
(6) (i) any default by the Corporation or any Restricted Subsidiary in
the payment of the principal, premium, if any, or interest has occurred with
respect to amounts in excess of $10.0 million under any agreement, indenture or
instrument evidencing Debt when the same shall become due and payable in full
and such default shall have continued after any applicable grace period and
shall not have been cured or waived and, if not already matured at its final
maturity in accordance with its terms, the holders of such Debt shall have the
right to accelerate such Debt, or (ii) any event of default as defined in any
agreement, indenture or instrument of the Corporation or any Restricted
Subsidiary evidencing Debt in excess of $10.0 million shall have occurred and
the Debt thereunder, if not already matured at its final maturity in accordance
with its terms, shall have been accelerated;
(7) the rendering of a final judgment or judgments against the
Corporation or any Restricted Subsidiary in an amount in excess of $5.0 million
which remains undischarged or unstayed for a period of 60 days after the date on
which the right to appeal has expired;
(8) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Corporation or any Significant
Subsidiary in an involuntary case or proceeding under any applicable U.S.
Federal or State or other applicable bankruptcy, insolvency, reorganization or
other similar law or (B) a decree or order adjudging the Corporation or any
Significant Subsidiary as bankrupt or insolvent, or approving as properly filed
a petition seeking reorganization, arrangement, adjustment or composition of or
in respect of the Corporation or any Significant Subsidiary under any applicable
U.S. Federal or State, or other applicable law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar official
of the Corporation or any Significant Subsidiary or of any substantial part of
the property of the Corporation or any Significant Subsidiary, or ordering the
winding up or liquidation of the affairs of the Corporation or any Significant
Subsidiary, and the
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continuance of any such decree or order for relief or any such other decree or
order unstayed and in effect for a period of 60 consecutive days;
(9) the commencement by the Corporation or any Significant Subsidiary of
a voluntary case or proceeding under any applicable U.S. Federal or State, or
other applicable bankruptcy, insolvency, reorganization or other similar law or
of any other case or proceeding to be adjudicated as bankrupt or insolvent, or
the consent by the Corporation or any Significant Subsidiary to the entry of a
decree or order for relief in respect of the Corporation or such Significant
Subsidiary in an involuntary case or proceeding under any applicable U.S.
Federal or State, or other applicable bankruptcy, insolvency, reorganization or
other similar law or to the commencement of any bankruptcy or insolvency case or
proceeding against the Corporation or a Significant Subsidiary, or the filing by
the Corporation or any Significant Subsidiary of a petition or answer or consent
seeking reorganization or relief under any applicable U.S. Federal or State, or
other applicable law, or the consent by the Corporation or any Significant
Subsidiary to the filing of such petition or to the appointment of or taking
possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator
or similar official of the Corporation or any Significant Subsidiary or of
substantially all of the property of the Corporation or any Significant
Subsidiary, or the making by the Corporation or any Significant Subsidiary of an
assignment for the benefit of creditors, or the admission by the Corporation or
any Significant Subsidiary in writing of its inability to pay its debts
generally as they become due, or the taking of corporate action by the
Corporation or any Significant Subsidiary in furtherance of any such action;
(10) the Liens created by the Security Documents shall at any time not
constitute a valid and perfected Lien on the Collateral intended to be covered
thereby (to the extent perfection by filing, registration, recordation or
possession is required in the Indenture or therein) in favor of the Collateral
Agent, free and clear of all other Liens (other than Permitted Liens), or,
except for expiration in accordance with its terms or amendment, modification,
waiver, termination or release in accordance with the terms of the Indenture,
any of the Security Documents shall for whatever reason be terminated or cease
to be in full force and effect, if in either case, such default continues for 15
days or the enforceability thereof shall be contested by the Corporation or any
Subsidiary Guarantor;
(11) any Subsidiary Guarantee ceases to be in full force and effect
(other than in accordance with the terms of the Indenture and such Subsidiary
Guarantee) or a Subsidiary Guarantor denies or disaffirms its obligations under
its Subsidiary Guarantee;
(12) failure of the Corporation to make, when due, any transfer,
delivery, pledge, assignment or grant of Collateral required to be made by it
and such failure continues unremedied for three Business Days after notice of
such failure is given to the Issuer by the Trustee or to the Issuer and the
Trustee by the Holders of at least 25% in aggregate principal amount of the
Outstanding Securities; or
(13) failure or refusal by the Corporation to perform, or the breach or
violation by the Issuer of, any of the terms, obligations, covenants or
warranties of any Security Document other than those specified in clause (12) of
this Section and such failure or refusal continues unremedied for three Business
Days after the applicable cure period has expired.
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If an Event of Default (other than an Event of Default specified in (8)
or (9) above) occurs and is continuing, then and in every such case the Trustee
or the holders of the New Notes (the "Holders") of not less than 25% in
principal amount of the Outstanding New Notes may declare the New Notes to be
due and payable immediately, by a notice in writing to the Corporation (and to
the Trustee if given by Holders), and upon any such declaration the principal,
or premium, if any, and any accrued interest on all Outstanding New Notes shall
become immediately due and payable. If an Event of Default specified in (8) or
(9) above occurs, the principal of and any accrued interest on the New Notes
then Outstanding shall ipso facto become immediately due and payable without any
declaration or other Act on the part of the Trustee or any Holder. In the event
of a declaration of acceleration because an Event of Default set forth in clause
(6) above has occurred and is continuing, such declaration of acceleration shall
be automatically rescinded and annulled if the event of default triggering such
Event of Default pursuant to clause (6) above shall be remedied or cured or
waived by the holders of the relevant Indebtedness within 30 days after such
event of default; provided that no judgment or decree for the payment of the
money due on the New Notes has been obtained by the Trustee as provided in the
Indenture.
Such a declaration of acceleration may be rescinded by Holders of a
majority in principal amount of the Outstanding New Notes, if all existing
Events of Default, other than the non-payment of principal or (and premium, if
any) or interest on the New Notes which have become due solely by such
declaration or acceleration, have been cured or waived and no judgement or
decree of payment of money due has been obtained by the Trustee as provided for
in the Indenture. Defaults may be waived by the Holders of a majority in
principal amount of the Outstanding New Notes, upon the conditions provided in
the Indenture, except that such Holders may not waive a default in payment of
principal, premium or interest on the New Notes that has occurred and has not
been cured or in respect of a covenant or provision which cannot be modified
without the consent of the Holder of each New Note affected; however, such
Holders may rescind an acceleration and its consequences that resulted from such
acceleration.
The Indenture provides that the Trustee shall give the Holders notice of
any default of which it has knowledge as and to the extent provided by the Trust
Indenture Act; provided, however, that in the case of an Event of Default in
payment of principal of (premium, if any) or interest on any New Note, no such
notice to Holders shall be given until at least 30 days after the occurrence of
such default. Except in the case of an Event of Default in payment of principal
of (premium, if any) or interest on any New Note, the Trustee may withhold
notice if and so long as a committee of its Responsible Officers in good faith
determines that withholding the notice is in the interests of the Holders.
(c) RELEASE OF ANY NOTE COLLATERAL SUBJECT TO THE LIEN OF THE INDENTURE.
Collateral may be released from the security interest created by the
Security Documents at any time or from time to time, and the Security Documents
may be terminated, in accordance with the provisions of the Security Documents.
The release of any Collateral from the terms of the Indenture and of the
Security Documents or the release of, in whole or in part, the Liens created by
the Security Documents, or the termination of the Security Documents, will not
be deemed to impair the Lien on the Collateral in contravention of the
provisions of the Indenture if
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and to the extent the Collateral or Liens are released, or the Security
Documents are terminated, pursuant to the applicable Security Documents. The
Trustee and each of the Holders acknowledge that a release of Collateral or a
Lien strictly in accordance with the terms of the Security Documents will not be
deemed for any purpose to be an impairment of the Lien on the Collateral in
contravention of the terms of the Indenture. To the extent applicable, the
Corporation and each obligor on the New Notes shall cause ss. 314(d) of the
Trust Indenture Act relating to the release of property or securities from the
Lien thereof and of the Security Documents to be complied with. Any certificate
or opinion required by ss. 314(d) of the Trust Indenture Act may be made by an
officer of the Corporation, except in cases which ss. 314(d) of the Trust
Indenture Act requires that such certificate or opinion be made by an
independent person. In releasing any Collateral pursuant to the terms of the
Indenture, including the provisions of Section 1307(a) of the Indenture, or any
Security Document, the Trustee shall be entitled to receive, and shall be fully
protected in relying upon, in addition to the documents required by Section 102,
an Officers' Certificate certifying that such release is authorized or permitted
by the Indenture, the Security Documents and any Permitted Senior Secured Debt
Documentation and that all conditions precedent, if any, to such release have
been satisfied.
(e) THE EVIDENCE REQUIRED TO BE FURNISHED BY THE OBLIGOR TO THE TRUSTEE AS
TO COMPLIANCE WITH THE CONDITIONS AND THE COVENANTS PROVIDED FOR IN THE
INDENTURE.
The Corporation and each Subsidiary Guarantor will deliver to the
Trustee, within 90 days after the end of its fiscal year, which initially shall
be September 30, and within 60 days after the end of each fiscal quarter (other
than the fourth fiscal quarter), of the Corporation ending after the date of the
Indenture an Officers' Certificate, stating whether or not to the best knowledge
of the signers thereof the Corporation or any Subsidiary Guarantor is in default
in the performance and observance of any of the terms, provisions and conditions
of the Indenture or the Security Documents, and if the Corporation or any
Subsidiary Guarantor shall be in default, specifying all such Defaults and
Events of Default and the nature and status thereof of which they may have
knowledge.
The Corporation shall deliver to the Trustee, as soon as possible and in
any event within 10 days after the Corporation becomes aware of the occurrence
of a Default or an Event of Default, an Officers' Certificate setting forth the
details of such Event of Default or Default, and the action which the
Corporation proposes to take with respect thereto.
The Corporation shall deliver to the Trustee within 90 days after the end
of each fiscal year a written statement by the Corporation's independent public
accountants stating (A) that their audit examination has included a review of
the terms of the Indenture and the New Notes as they relate to accounting
matters, and (B) whether, in connection with their audit examination, any event
which, with notice or the lapse of time or both, would constitute an Event of
Default under Section 1008 and Section 1011 of the Indenture has come to their
attention and, if such a default has come to their attention, specifying the
nature and period of the existence thereof.
Upon any application or request by the Corporation to the Trustee to take
any action under the Indenture, the Corporation is required to furnish to the
Trustee an Officer's Certificate or an Opinion of Counsel as may be required
under the Trust Indenture Act to the effect that all
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conditions precedent and covenants, if any provided for in the Indenture
relating to the proposed actions have been satisfied.
Item 9. CONTENTS OF APPLICATION FOR QUALIFICATION
(c) The following exhibits are hereby filed with this amendment, in
addition to those previously filed as part of the statement of eligibility and
qualification of the Trustee:
Exhibit T3-C--Indenture, dated as of April 23, 2002, among the
Corporation, as issuer, the subsidiary guarantors named therein and HSBC
Bank USA, as trustee (incorporated by reference to Exhibit 4.1 of the
Corporation's Quarterly Report on Form 10-Q dated May 14, 2002).
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SIGNATURES
Pursuant to the requirements of the Trust Indenture Act of 1939, the
applicant, Globix Corporation, a corporation organized and existing under the
laws of the State of Delaware, has duly caused this application to be signed on
its behalf by the undersigned, thereunto duly authorized, and its seal to be
hereunto affixed and attested, all in the city of New York and State of New
York on June 28, 2002.
(SEAL) Globix Corporation
Attest:/s/ Gregory P. Leahy By: /s/ Shawn P. Brosnan
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Name: Gregory P. Leahy Name: Shawn P. Brosnan
Title: General Counsel and Title: Senior Vice President
Corporate Secretary and Corporate Controller
EXHIBIT INDEX
EXHIBIT DESCRIPTION
Exhibit T3-C Indenture, dated as of April 23, 2002, among the
Corporation, as issuer, the subsidiary guarantors
named therein and HSBC Bank USA, as trustee
(incorporated by reference to Exhibit 4.1 of the
Corporation's Quarterly Report on Form 10-Q dated
May 14, 2002).