Exhibit 4.12
[FACE OF NOTE]
ICG HOLDINGS, INC.
11 5/8% Senior Discount Note Due 2007
[CUSIP] [CINS]
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No. $_________
The following information is supplied for purposes of Sections
1273 and 1275 of the Internal Revenue Code:
Issue Date: March 11, 1997
Yield to maturity for period from Issue Date to March 15, 2007: 11.62%
(rounded to two decimal places), compounded semiannually on March 15 and
September 15 commencing March 11, 1997 (computed without giving effect to
the additional payments of interest in the event the issuer fails to
commence the exchange offer and fails to cause the shelf registration
statement to be declared effective, each as referred to on the reverse
hereof)
Original issue discount under Section 1273 of the Internal Revenue Code
(for each $1,000 principal amount at maturity): $1,013.59
Issue Price (for each $1,000 principal amount at maturity): $567.66
ICG HOLDINGS, INC., a Colorado corporation (the "Company", which
term includes any successor under the Indenture hereinafter referred to),
for value received, promises to pay to [ ], or its registered
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assigns, the principal sum of [ ] ($[ ]) on March 15, 2007.
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Interest Payment Dates: March 15 and September 15, commencing
September 15, 2002.
Regular Record Dates: March 1 and September 1.
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.
IN WITNESS WHEREOF, the Company has caused this Note to be signed
manually or by facsimile by its duly authorized officers.
Date: [ ] ICG HOLDINGS, INC.
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By:
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Name:
Title:
Attest:
Name:
Title:
(Form of Trustee's Certificate of Authentication)
This is one of the 11 5/8% Senior Discount Notes due 2007 described in the
within-mentioned Indenture.
NORWEST BANK COLORADO,
NATIONAL ASSOCIATION, as Trustee
By:
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Authorized Signatory
[REVERSE SIDE OF NOTE]
ICG HOLDINGS, INC.
11 5/8% Senior Discount Note due 2007
1. Principal and Interest.
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The Company will pay the principal of this 11 5/8% Senior
Discount Note due 2007 (the "Note") on March 15, 2007.
The Company promises to pay interest on the principal amount of
this Note on each Interest Payment Date, as set forth below, at the rate
per annum shown above.
Interest will be payable semiannually (to the holders of record
of the Notes at the close of business on the March 1 or September 1
immediately preceding the Interest Payment Date) on each Interest Payment
Date, commencing September 15, 2002; provided that no interest shall accrue
on the principal amount of this Note prior to March 15, 2002 and no
interest shall be paid on this Note prior to September 15, 2002, except as
provided in the next paragraph.
If an exchange offer registered under the Securities Act is not
consummated, and a shelf registration statement under the Securities Act
with respect to resales of the Notes is not declared effective by the
Commission, on or before September 11, 1997 in accordance with the terms of
the Registration Rights Agreement dated March 11, 1997 among the Company,
the Guarantor and Morgan Stanley & Co. Incorporated, interest (in addition
to the accrual of original discount during the period ending March 15, 2002
and in addition to the interest otherwise due on the Notes after such date)
will accrue, at an annual rate of 0.5% of the Accreted Value on the
preceding Semi-Annual Accrual Date on the Notes, from September 11, 1997,
payable in cash semiannually, in arrears, on each March 15 and
September 15, commencing March 15, 1998. The Holder of this Note is
entitled to the benefits of such Registration Rights Agreement.
From and after March 15, 2002, interest on the Notes will accrue
from the most recent date to which interest has been paid or, if no
interest has been paid, from March 15, 2002; provided that, if there is no
existing default in the payment of interest and this Note is authenticated
between a Regular Record Date referred to on the face hereof and the next
succeeding Interest Payment Date, interest shall accrue from such Interest
Payment Date. Interest will be computed on the basis of a 360-day year of
twelve 30-day months.
The Company shall pay interest on overdue principal and premium,
if any, and interest on overdue installments of interest, to the extent
lawful, at a rate per annum that is 2% in excess of the rate otherwise
payable.
2. Method of Payment.
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The Company will pay principal as provided above and interest
(except defaulted interest) on the principal amount of the Notes as
provided above on each March 15 and September 15 to the persons who are
Holders (as reflected in the Security Register at the close of business on
such March 1 and September 1, immediately preceding the Interest Payment
Date), in each case, even if the Note is cancelled on registration of
transfer or registration of exchange after such record date; provided that,
with respect to the payment of principal, the Company will not make payment
to the Holder unless this Note is surrendered to a Paying Agent.
The Company will pay principal, premium, if any, and as provided
above, interest in money of the United States that at the time of payment
is legal tender for payment of public and private debts. However, the
Company may pay principal, premium, if any, and interest by its check
payable in such money. It may mail an interest check to a Holder's
registered address (as reflected in the Security Register). If a payment
date is a date other than a Business Day at a place of payment, payment may
be made at that place on the next succeeding day that is a Business Day and
no interest shall accrue for the intervening period.
3. Paying Agent and Registrar.
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Initially, the Trustee will act as authenticating agent, Paying
Agent and Registrar. The Company may change any authenticating agent,
Paying Agent or Registrar without notice. The Company, any Subsidiary or
any Affiliate of any of them may act as Paying Agent, Registrar or
co-Registrar.
4. Indenture; Issuance of Additional Notes.
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The Company issued the Notes under an Indenture dated as of
March 11, 1997 (the "Indenture"), among the Company, ICG Communications,
Inc., a Delaware corporation (the "Guarantor"), and Norwest Bank Colorado,
National Association, as trustee (the "Trustee"). Capitalized terms herein
are used as defined in the Indenture unless otherwise indicated. The terms
of the Notes include those stated in the Indenture and those made part of
the Indenture by reference to the Trust Indenture Act. The Notes are
subject to all such terms, and Holders are referred to the Indenture and
the Trust Indenture Act for a statement of all such terms. To the extent
permitted by applicable law, in the event of any inconsistency between the
terms of this Note and the terms of the Indenture, the terms of the
Indenture shall control.
The Notes are general unsecured obligations of the Company. The
Indenture provides for an initial original issuance of an aggregate
principal amount at maturity of Notes of $176,000,000, plus any Exchange
Securities that may be issued pursuant to the Registration Rights
Agreement, and, subject to Article Four of the Indenture, the issuance from
time to time of additional Notes under the Indenture.
5. Redemption.
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The Notes will be redeemable, at the Company's option, in whole
or in part, at any time and from time to time on or after March 15, 2002
and prior to maturity, upon not less than 30 nor more than 60 days' prior
notice mailed by first-class mail to each Holder's last address as it
appears in the Security Register, at the following Redemption Prices
(expressed in percentages of their principal amount at maturity), plus
accrued and unpaid interest, if any, to the Redemption Date (subject to the
right of Holders of record on the relevant Regular Record Date that is on
or prior to the Redemption 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 commencing on March 15 of the applicable year set forth
below:
Redemption
Year Price
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2002 105.81250%
2003 102.90625
2004 and thereafter 100.00000
In addition, at any time on or prior to March 15, 2000, the
Company may, at its option from time to time, redeem Securities having an
aggregate principal amount of up to 35% of the aggregate principal amount
of all Securities issued, at a redemption price equal to 111 5/8% of the
Accreted Value thereof on the Redemption Date, with proceeds of one or more
Public Equity Offerings of Common Stock of (A) the Guarantor or (B) the
Company, provided that (i) with respect to a Public Equity Offering
referred to in clause (A) above, cash proceeds of such Public Equity
Offering in an amount sufficient to effect the redemption of Securities to
be so redeemed are contributed by the Guarantor to the Company prior to
such redemption and used by the Company to effect such redemption and
(ii) such redemption occurs within 180 days after consummation of such
Public Equity Offering.
6. Notice of Redemption.
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Notice of any optional redemption will be mailed at least 30 days
but not more than 60 days before the Redemption Date to each Holder of
Notes to be redeemed at his last address as it appears in the Security
Register. Notes in original denominations larger than $1,000 may be
redeemed in part. On and after the Redemption Date, interest ceases to
accrue on Notes or portions of Notes called for redemption, unless the
Company defaults in the payment of the Redemption Price.
7. Repurchase upon Change in Control.
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Upon the occurrence of any Change of Control, each Holder shall
have the right to require the repurchase of its Notes by the Company in
cash pursuant to the offer described in the Indenture at a purchase price
equal to 101% of the Accreted Value thereof plus accrued and unpaid
interest, if any, to the date of purchase (the "Change of Control
Payment").
A notice of such Change of Control will be mailed within 30 days
after any Change of Control occurs to each Holder at his last address as it
appears in the Security Register. Notes in original denominations larger
than $1,000 may be sold to the Company in part. On and after the date of
the Change of Control Payment, interest ceases to accrue on Notes or
portions of Notes surrendered for purchase by the Company, unless the
Company defaults in the payment of the Change of Control Payment.
8. Denominations; Transfer; Exchange.
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The Notes are in registered form without coupons in denominations
of $1,000 of principal amount at maturity and multiples of $1,000 in excess
thereof. A Holder may register the transfer or exchange of Notes in
accordance with the Indenture. The Registrar may require a Holder, among
other things, to furnish appropriate endorsements and transfer documents
and to pay any taxes and fees required by law or permitted by the
Indenture. The Registrar need not register the transfer or exchange of any
Notes selected for redemption. Also, it need not register the transfer or
exchange of any Notes for a period of 15 days before a selection of Notes
to be redeemed is made.
9. Persons Deemed Owners.
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A Holder shall be treated as the owner of a Note for all
purposes.
10. Unclaimed Money.
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If money for the payment of principal, premium, if any, or
interest remains unclaimed for two years, the Trustee and the Paying Agent
will pay the money back to the Company at its request. After that, Holders
entitled to the money must look to the Company for payment, unless an
abandoned property law designates another Person, and all liability of the
Trustee and such Paying Agent with respect to such money shall cease.
11. Discharge Prior to Redemption or Maturity.
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If the Company or the Guarantor deposits with the Trustee money
or U.S. Government Obligations sufficient to pay the then outstanding
principal of, premium, if any, and accrued interest on the Notes (a) to
redemption or maturity, the Company will be discharged from the Indenture
and the Notes, except in certain circumstances for certain sections
thereof, and (b) to the Stated Maturity, the Company and the Guarantor will
be discharged from certain covenants set forth in the Indenture.
12. Amendment; Supplement; Waiver.
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Subject to certain exceptions, the Indenture or the Notes may be
amended or supplemented with the consent of the Holders of at least a
majority in principal amount at maturity of the Notes then outstanding, and
any existing default or compliance with any provision may be waived with
the consent of the Holders of at least a majority in principal amount at
maturity of the Notes then outstanding. Without notice to or the consent
of any Holder, the parties thereto may amend or supplement the Indenture or
the Notes to, among other things, cure any ambiguity, defect or
inconsistency and make any change that does not materially and adversely
affect the rights of any Holder.
13. Restrictive Covenants.
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The Indenture imposes certain limitations on the ability of the
Company and the Guarantor and its Restricted Subsidiaries, among other
things, to Incur Indebtedness, make Restricted Payments, use the proceeds
from Asset Sales, engage in transactions with Affiliates or, with respect
to each of the Company and the Guarantor, merge, consolidate or transfer
substantially all of its assets. Within 45 days after the end of each
fiscal quarter (90 days after the end of the last fiscal quarter of each
year), the Company must report to the Trustee on compliance with such
limitations.
14. Successor Persons.
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When a successor person or other entity assumes all the
obligations of its predecessor under the Notes and the Indenture, the
predecessor person will be released from those obligations.
15. Defaults and Remedies.
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The following events constitute "Events of Default" under the
Indenture: (a) default in the payment of principal of (or premium, if any,
on) any Note when the same becomes due and payable at maturity, upon
acceleration, redemption or otherwise; (b) default in the payment of
interest on any Note when the same becomes due and payable, and such
default continues for a period of 30 days; (c) the Company or the Guarantor
defaults in the performance of or breaches any other covenant or agreement
of the Company or the Guarantor in the Indenture or under the Notes and
such default or breach continues for a period of 30 consecutive days after
written notice by the Trustee or the Holders of 25% or more in aggregate
principal amount at maturity of the Notes; (d) there occurs with respect to
any issue or issues of Indebtedness of the Company, the Guarantor or any
Significant Subsidiary having an outstanding principal amount at maturity
of $10 million or more in the aggregate for all such issues of all such
Persons, whether such Indebtedness now exists or shall hereafter be
created, (I) an event of default that has caused the holder thereof to
declare such Indebtedness to be due and payable prior to its Stated
Maturity and such Indebtedness has not been discharged in full or such
acceleration has not been rescinded or annulled within 30 days of such
acceleration and/or (II) the failure to make a principal payment at the
final (but not any interim) fixed maturity and such defaulted payment shall
not have been made, waived or extended within 30 days of such payment
default; (e) any final judgment or order (not covered by insurance) for the
payment of money in excess of $10 million in the aggregate for all such
final judgments or orders against all such Persons (treating any
deductibles, self-insurance or retention as not so covered) shall be
rendered against the Company, the Guarantor or any Significant Subsidiary
and shall not be paid or discharged, and there shall be any period of 30
consecutive days following entry of the final judgment or order that causes
the aggregate amount for all such final judgments or orders outstanding and
not paid or discharged against all such Persons to exceed $10 million
during which a stay of enforcement of such final judgment or order, by
reason of a pending appeal or otherwise, shall not be in effect; (f) a
court having jurisdiction in the premises enters a decree or order for (A)
relief in respect of the Company, the Guarantor or any Significant
Subsidiary in an involuntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, (B) appointment
of a receiver, liquidator, assignee, custodian, trustee, sequestrator or
similar official of the Company, the Guarantor or any Significant
Subsidiary or for all or substantially all of the property and assets of
the Company, the Guarantor or any Significant Subsidiary or (C) the winding
up or liquidation of the affairs of the Company, the Guarantor or any
Significant Subsidiary and, in each case, such decree or order shall remain
unstayed and in effect for a period of 30 consecutive days; or (g) the
Company, the Guarantor or any Significant Subsidiary (A) commences a
voluntary case under any applicable bankruptcy, insolvency or other similar
law now or hereafter in effect, or consents to the entry of an order for
relief in an involuntary case under any such law, (B) consents to the
appointment of or taking possession by a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official of the Company, the
Guarantor or any Significant Subsidiary or for all or substantially all of
the property and assets of the Company, the Guarantor or any Significant
Subsidiary or (C) effects any general assignment for the benefit of
creditors.
If an Event of Default (other than an Event of Default specified
in clause (f) or (g) above that occurs with respect to the Company or the
Guarantor) occurs and is continuing under the Indenture, the Trustee or the
Holders of at least 25% in aggregate principal amount at maturity of the
Notes, then outstanding, by written notice to the Company (and to the
Trustee if such notice is given by the Holders), may, and the Trustee at
the request of such Holders shall, declare the Accreted Value of, premium,
if any, and accrued interest, if any, on the Notes to be immediately due
and payable.
If an Event of Default, as defined in the Indenture, occurs and
is continuing, the Trustee or the Holders of at least 25% in principal
amount at maturity of the Notes may declare all the Notes to be due and
payable. If a bankruptcy or insolvency default with respect to the Company
or any Restricted Subsidiary occurs and is continuing, the Notes
automatically become due and payable. Holders may not enforce the
Indenture or the Notes except as provided in the Indenture. The Trustee
may require indemnity satisfactory to it before it enforces the Indenture
or the Notes. Subject to certain limitations, Holders of at least a
majority in principal amount at maturity of the Notes then outstanding may
direct the Trustee in its exercise of any trust or power.
16. Guarantee.
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The Company's obligations under the Notes are fully and
irrevocably guaranteed by the Guarantor.
17. Trustee Dealings with Company or Guarantor.
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The Trustee under the Indenture, in its individual or any other
capacity, may make loans to, accept deposits from and perform services for
the Company, the Guarantor or their Affiliates and may otherwise deal with
the Company, the Guarantor or their Affiliates as if it were not the
Trustee.
18. No Recourse Against Others.
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No incorporator or any past, present or future partner,
shareholder, other
equity holder, officer, director, employee or controlling person as such,
of the Company or the Guarantor or of any successor Person shall have any
liability for any obligations of the Company or the Guarantor under the
Notes or the Indenture or for any claim based on, in respect of or by
reason of, such obligations or their creation. Each Holder by accepting a
Note waives and releases all such liability. The waiver and release are
part of the consideration for the issuance of the Notes.
19. Authentication.
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This Note shall not be valid until the Trustee or authenticating
agent signs the certificate of authentication on the other side of this
Note.
20. Abbreviations.
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Customary abbreviations may be used in the name of a Holder or an
assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by
the entireties), JT TEN (= joint tenants with right of survivorship and not
as tenants in common), CUST (= Custodian) and U/G/M/A (= Uniform Gifts to
Minors Act).
The Company will furnish to any Holder upon written request and
without charge a copy of the Indenture. Requests may be made to ICG
Holdings, Inc., 9605 East Maroon Circle, P.O. Box 6742, Englewood,
Colorado, 80155-6742, Attention: Chief Financial Officer.
[FORM OF TRANSFER NOTICE]
FOR VALUE RECEIVED the undersigned registered holder hereby
sell(s), assign(s) and transfer(s) unto
Insert Taxpayer Identification No.
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Please print or typewrite name and address including zip code of assignee
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the within Note and all rights thereunder, hereby irrevocably constituting
and appointing
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attorney to transfer said Note on the books of the Company with
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full power of substitution in the premises.
[THE FOLLOWING PROVISION TO BE INCLUDED
ON ALL SECURITIES OTHER THAN EXCHANGE SECURITIES,
UNLEGENDED OFFSHORE GLOBAL SECURITIES AND
UNLEGENDED OFFSHORE PHYSICAL SECURITIES]
In connection with any transfer of this Note occurring prior to the
date which is the earlier of (i) the date of an effective Registration or
(ii) the end of the period referred to in Rule 144(k) under the Securities
Act, the undersigned confirms that without utilizing any general
solicitation or general advertising that:
[Check One]
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[ ] (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 none of the foregoing boxes is checked, the Trustee or other 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 2.08 of the
Indenture shall have been satisfied.
Date:
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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.
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 and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities
Act of 1933, as amended, and 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 Company as the undersigned has requested pursuant
to Rule 144A or has determined not to request such information and that it
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.
Dated:
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NOTICE: To be executed by an executive
officer
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Note purchased by the Company pursuant
to Section 4.11 or Section 4.12 of the Indenture, check the Box: [ ]
If you wish to have a portion of this Note purchased by the
Company pursuant to Section 4.11 or Section 4.12 of the Indenture, state
the amount (in principal amount at maturity): $ .
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Date:
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Your Signature:
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(Sign exactly as your name appears on the other side of this Note)
Signature Guarantee:
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