Exhibit 4.15
ICG HOLDINGS, INC.,
as Issuer
ICG COMMUNICATIONS, INC.,
as Guarantor
and
NORWEST BANK COLORADO, NATIONAL ASSOCIATION,
as Trustee
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Indenture
Dated as of March 11, 1997
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11 5/8% Senior Discount Notes due 2007
CROSS-REFERENCE TABLE
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TIA Sections Indenture Sections
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<Section> 310(a)(1) . . . . . . . . . . 7.10
(a)(2) . . . . . . . . . . . . . . 7.10
(b) . . . . . . . . . . . . . . . . 7.08
<Section> 313(c) . . . . . . . . . . . 7.06; 11.02
<Section> 314(a) . . . . . . . . . . . 4.18; 11.02
(a)(4) . . . . . . . . . . . . . . 4.17; 11.02
(c)(1) . . . . . . . . . . . . . . 11.03
(c)(2) . . . . . . . . . . . . . . 11.03
(e) . . . . . . . . . . . . . . . . 11.04
<Section> 315(b) . . . . . . . . . . . 7.05; 11.02
<Section> 316(a)(1)(A) . . . . . . . . 6.05
(a)(1)(B) . . . . . . . . . . . . . 6.04
(b) . . . . . . . . . . . . . . . . 6.07
<Section> 317(a)(1) . . . . . . . . . . 6.08
(a)(2) . . . . . . . . . . . . . . 6.09
<Section> 318(a) . . . . . . . . . . . 11.01
(c) . . . . . . . . . . . . . . . . 11.01
Note: The Cross-Reference Table shall not for any purpose be deemed to
be a part of the Indenture.
TABLE OF CONTENTS
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Page
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RECITALS OF THE COMPANY . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.02. Incorporation by Reference of Trust Indenture Act . . 22
SECTION 1.03. Rules of Construction . . . . . . . . . . . . . . . . 22
ARTICLE TWO
THE SECURITIES
SECTION 2.01. Form and Dating . . . . . . . . . . . . . . . . . . . 23
SECTION 2.02. Restrictive Legends . . . . . . . . . . . . . . . . . 24
SECTION 2.03. Execution, Authentication and Denominations . . . . . 26
SECTION 2.04. Registrar and Paying Agent . . . . . . . . . . . . . . 28
SECTION 2.05. Paying Agent to Hold Money in Trust . . . . . . . . . 28
SECTION 2.06. Transfer and Exchange . . . . . . . . . . . . . . . . 29
SECTION 2.07. Book-Entry Provisions for Global Securities . . . . . 30
SECTION 2.08. Special Transfer Provisions . . . . . . . . . . . . . 32
SECTION 2.09. Replacement Securities . . . . . . . . . . . . . . . . 34
SECTION 2.10. Outstanding Securities . . . . . . . . . . . . . . . . 35
SECTION 2.11. Temporary Securities . . . . . . . . . . . . . . . . . 36
SECTION 2.12. Cancellation . . . . . . . . . . . . . . . . . . . . . 36
SECTION 2.13. CUSIP Numbers . . . . . . . . . . . . . . . . . . . . 36
SECTION 2.14. Defaulted Interest . . . . . . . . . . . . . . . . . . 36
ARTICLE THREE
REDEMPTION
SECTION 3.01. Right of Redemption . . . . . . . . . . . . . . . . . 37
SECTION 3.02. Notices to Trustee . . . . . . . . . . . . . . . . . . 37
SECTION 3.03. Selection of Securities to Be Redeemed . . . . . . . . 38
SECTION 3.04. Notice of Redemption . . . . . . . . . . . . . . . . . 38
SECTION 3.05. Effect of Notice of Redemption . . . . . . . . . . . . 39
SECTION 3.06. Deposit of Redemption Price . . . . . . . . . . . . . 39
SECTION 3.07. Payment of Securities Called for Redemption . . . . . 40
SECTION 3.08. Securities Redeemed in Part . . . . . . . . . . . . . 40
ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Securities . . . . . . . . . . . . . . . . 40
SECTION 4.02. Maintenance of Office or Agency . . . . . . . . . . . 41
SECTION 4.03. Limitation on Indebtedness . . . . . . . . . . . . . . 41
SECTION 4.04. Limitation on Restricted Payments . . . . . . . . . . 45
SECTION 4.05. Limitation on Dividend and Other Payment Restrictions
Affecting Restricted Subsidiaries . . . . . . . . . . . 48
SECTION 4.06. Limitation on the Issuances and Sale of Capital Stock of
Restricted Subsidiaries . . . . . . . . . . . . . . . . 50
SECTION 4.07. Limitation on Issuances of Guarantees by Restricted
Subsidiaries . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 4.08. Limitation on Transactions with Shareholders and
Affiliates . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 4.09. Limitation on Liens . . . . . . . . . . . . . . . . . 52
SECTION 4.10. Limitation on Sale-Leaseback Transactions . . . . . . 53
SECTION 4.11. Limitation on Asset Sales . . . . . . . . . . . . . . 54
SECTION 4.12. Repurchase of Securities upon a Change of Control . . 55
SECTION 4.13. Existence . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 4.14. Payment of Taxes and Other Claims . . . . . . . . . . 55
SECTION 4.15. Maintenance of Properties and Insurance . . . . . . . 55
SECTION 4.16. Notice of Defaults . . . . . . . . . . . . . . . . . . 56
SECTION 4.17. Compliance Certificates . . . . . . . . . . . . . . . 56
SECTION 4.18. Commission Reports and Reports to Holders . . . . . . 57
SECTION 4.19. Waiver of Stay, Extension or Usury Laws . . . . . . . 57
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. When Company and Guarantor May Merge, Etc. . . . . . . 58
SECTION 5.02. Successor Substituted . . . . . . . . . . . . . . . . 59
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default . . . . . . . . . . . . . . . . . . 59
SECTION 6.02. Acceleration . . . . . . . . . . . . . . . . . . . . . 61
SECTION 6.03. Other Remedies . . . . . . . . . . . . . . . . . . . . 61
SECTION 6.04. Waiver of Past Defaults . . . . . . . . . . . . . . . 62
SECTION 6.05. Control by Majority . . . . . . . . . . . . . . . . . 62
SECTION 6.06. Limitation on Suits . . . . . . . . . . . . . . . . . 62
SECTION 6.07. Rights of Holders to Receive Payment . . . . . . . . . 63
SECTION 6.08. Collection Suit by Trustee . . . . . . . . . . . . . . 63
SECTION 6.09. Trustee May File Proofs of Claim . . . . . . . . . . . 63
SECTION 6.10. Priorities . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 6.11. Undertaking for Costs . . . . . . . . . . . . . . . . 64
SECTION 6.12. Restoration of Rights and Remedies . . . . . . . . . . 64
SECTION 6.13. Rights and Remedies Cumulative . . . . . . . . . . . . 65
SECTION 6.14. Delay or Omission Not Waiver . . . . . . . . . . . . . 65
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. General . . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 7.02. Certain Rights of Trustee . . . . . . . . . . . . . . 65
SECTION 7.03. Individual Rights of Trustee . . . . . . . . . . . . . 67
SECTION 7.04. Trustee's Disclaimer . . . . . . . . . . . . . . . . . 67
SECTION 7.05. Notice of Default . . . . . . . . . . . . . . . . . . 67
SECTION 7.06. Reports by Trustee to Holders . . . . . . . . . . . . 67
SECTION 7.07. Compensation and Indemnity . . . . . . . . . . . . . . 67
SECTION 7.08. Replacement of Trustee . . . . . . . . . . . . . . . . 68
SECTION 7.09. Successor Trustee by Merger, Etc. . . . . . . . . . . 69
SECTION 7.10. Eligibility . . . . . . . . . . . . . . . . . . . . . 69
SECTION 7.11. Money Held in Trust . . . . . . . . . . . . . . . . . 69
SECTION 7.12. Withholding Taxes . . . . . . . . . . . . . . . . . . 69
ARTICLE EIGHT
DISCHARGE OF INDENTURE
SECTION 8.01. Termination of Company's Obligations . . . . . . . . . 70
SECTION 8.02. Defeasance and Discharge of Indenture . . . . . . . . 71
SECTION 8.03. Defeasance of Certain Obligations . . . . . . . . . . 73
SECTION 8.04. Application of Trust Money . . . . . . . . . . . . . . 75
SECTION 8.05. Repayment to Company . . . . . . . . . . . . . . . . . 75
SECTION 8.06. Reinstatement . . . . . . . . . . . . . . . . . . . . 75
SECTION 8.07. Insiders . . . . . . . . . . . . . . . . . . . . . . . 76
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders . . . . . . . . . . . . . . 76
SECTION 9.02. With Consent of Holders . . . . . . . . . . . . . . . 77
SECTION 9.03. Revocation and Effect of Consent . . . . . . . . . . . 78
SECTION 9.04. Notation on or Exchange of Securities . . . . . . . . 78
SECTION 9.05. Trustee to Sign Amendments, Etc. . . . . . . . . . . . 79
SECTION 9.06. Conformity with Trust Indenture Act . . . . . . . . . 79
ARTICLE TEN
GUARANTEE OF SECURITIES
SECTION 10.01. Security Guarantee . . . . . . . . . . . . . . . . . 79
SECTION 10.02. Obligations Unconditional . . . . . . . . . . . . . . 80
SECTION 10.03. Notice to Trustee . . . . . . . . . . . . . . . . . . 81
SECTION 10.04. This Article Not to Prevent Events of Default . . . . 81
SECTION 10.05. Net Worth Limitation . . . . . . . . . . . . . . . . 81
ARTICLE ELEVEN
MISCELLANEOUS
SECTION 11.01. Trust Indenture Act of 1939 . . . . . . . . . . . . . 81
SECTION 11.02. Notices . . . . . . . . . . . . . . . . . . . . . . . 82
SECTION 11.03. Certificate and Opinion as to Conditions Precedent . 83
SECTION 11.04. Statements Required in Certificate or Opinion . . . . 83
SECTION 11.05. Rules by Trustee, Paying Agent or Registrar . . . . . 84
SECTION 11.06. Payment Date Other Than a Business Day . . . . . . . 84
SECTION 11.07. Governing Law; Submission to Jurisdiction . . . . . . 84
SECTION 11.08. No Adverse Interpretation of Other Agreements . . . . 84
SECTION 11.09. No Recourse Against Others . . . . . . . . . . . . . 84
SECTION 11.10. Successors . . . . . . . . . . . . . . . . . . . . . 85
SECTION 11.11. Duplicate Originals . . . . . . . . . . . . . . . . . 85
SECTION 11.12. Separability . . . . . . . . . . . . . . . . . . . . 85
SECTION 11.13. Table of Contents, Headings, Etc. . . . . . . . . . . 85
EXHIBIT A Form of Security . . . . . . . . . . . . . . . . . . . . A-1
EXHIBIT B Form of Certificate . . . . . . . . . . . . . . . . . . . B-1
EXHIBIT C Form of Certificate to Be Delivered in Connection with
Transfers Pursuant to Regulation S . . . . . . . . . . C-1
EXHIBIT D Form of Certificate to Be Delivered in Connection with
Transfers to Non-QIB Accredited Investors . . . . . . . D-1
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Note: The Table of Contents shall not for any purposes be deemed to
be a part of the Indenture.
INDENTURE, dated as of March 11, 1997, among ICG HOLDINGS, INC.,
a Colorado corporation, as Issuer (the "Company"), ICG COMMUNICATIONS,
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INC., a Delaware corporation, as Guarantor (the "Guarantor"), and NORWEST
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BANK COLORADO, NATIONAL ASSOCIATION, as Trustee (the "Trustee").
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RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery
of this Indenture to provide for the initial original issuance of
$176,000,000 aggregate principal amount at maturity of the Company's 11
5/8% Senior Discount Notes due 2007 (the "Securities"), and the issuance
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from time to time of additional Securities, issuable as provided in this
Indenture. All things necessary to make this Indenture a valid agreement
of the Company and the Guarantor, in accordance with its terms, have been
done, and the Company and the Guarantor have done all things necessary to
make the Securities, when executed by the Company and the Guarantor and
authenticated and delivered by the Trustee hereunder and duly issued by the
Company, the valid obligations of the Company and the Guarantor as
hereinafter provided.
This Indenture will, upon the effectiveness of the registration
statement provided for under the Registration Rights Agreement, be subject
to, and governed by, the provisions of the Trust Indenture Act of 1939, as
amended, that are required to be a part of and to govern indentures
qualified under the Trust Indenture Act of 1939, as amended.
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed,
for the equal and proportionate benefit of all Holders, as follows.
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
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"Accreted Value" means, for any Specified Date, the amount
provided below for each $1,000 principal amount at maturity of Securities:
(i) if the Specified Date occurs on one of the following dates
(each a "Semi-Annual Accrual Date"), the Accreted Value will equal the
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amount set forth below for such Semi-Annual Accrual Date:
SEMI-ANNUAL ACCRUAL DATE ACCRETED VALUE
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March 11, 1997 $567.660
September 15, 1997 $601.410
March 15, 1998 $636.366
September 15, 1998 $673.355
March 15, 1999 $712.493
September 15, 1999 $753.907
March 15, 2000 $797.727
September 15, 2000 $844.095
March 15, 2001 $893.157
September 15, 2001 $945.072
March 15, 2002 $1,000.000
(ii) if the Specified Date occurs before the first Semi-Annual
Accrual Date, the Accreted Value will equal the sum of (a) the
original issue price and (b) an amount equal to the product of (1) the
Accreted Value for the first Semi-Annual Accrual Date less the
original issue price multiplied by (2) a fraction, the numerator of
which is the number of days from the issue date of the Securities to
the Specified Date, using a 360-day year of twelve 30-day months, and
the denominator of which is the number of days elapsed from the issue
date of the Securities to the first Semi-Annual Accrual Date, using a
360-day year of twelve 30-day months;
(iii) if the Specified Date occurs between two Semi-Annual
Accrual Dates, the Accreted Value will equal the sum of (a) the
Accreted Value for the Semi-Annual Accrual Date immediately preceding
such Specified Date and (b) an amount equal to the product of (1) the
Accreted Value for the immediately following Semi-Annual Accrual Date
less the Accreted Value for the immediately preceding Semi-Annual
Accrual Date multiplied by (2) a fraction, the numerator of which is
the number of days from the immediately preceding Semi-Annual Accrual
Date to the Specified Date, using a 360-day year of twelve 30-day
months, and the denominator of which is 180; or
(iv) if the Specified Date occurs after the last Semi-Annual
Accrual Date, the Accreted Value will equal $1,000.
"Acquired Indebtedness" has the meaning provided in
Section 4.03(a).
"Adjusted Consolidated Net Income" means, for any period, the
aggregate net income (or loss) of the Guarantor and its Restricted
Subsidiaries for such period determined in conformity with GAAP; provided
that the following items shall be excluded in computing Adjusted
Consolidated Net Income (without duplication): (i) the net income of any
Person (other than net income attributable to a Restricted Subsidiary) in
which any Person (other than the Guarantor or any of its Restricted
Subsidiaries) has a joint interest and the net income of any Unrestricted
Subsidiary, except to the extent of the amount of dividends or other
distributions actually paid to the Guarantor or any of its Restricted
Subsidiaries by such other Person or such Unrestricted Subsidiary during
such period; (ii) solely for the purposes of calculating the amount of
Restricted Payments that may be made pursuant to clause (C) of the first
paragraph of Section 4.04 (and in such case, except to the extent
includable pursuant to clause (i) above), the net income (or loss) of any
Person accrued prior to the date it becomes a Restricted Subsidiary or is
merged into or consolidated with the Guarantor or any of its Restricted
Subsidiaries or all or substantially all of the property and assets of such
Person are acquired by the Guarantor or any of its Restricted Subsidiaries;
(iii) the net income of any Restricted Subsidiary to the extent that the
declaration or payment of dividends or similar distributions by such
Restricted Subsidiary of such net income is not at the time permitted by
the operation of the terms of its charter or any agreement, instrument,
judgment, decree, order, statute, rule or governmental regulation
applicable to such Restricted Subsidiary; (iv) any gains or losses (on an
after-tax basis) attributable to Asset Sales; (v) except for purposes of
calculating the amount of Restricted Payments that may be made pursuant to
clause (C) of the first paragraph of Section 4.04, any amount paid or
accrued as dividends on preferred stock of the Guarantor or any Restricted
Subsidiary owned by Persons other than the Guarantor and any of its
Restricted Subsidiaries; and (vi) all extraordinary gains and extraordinary
losses.
"Adjusted Consolidated Net Tangible Assets" means the total
amount of assets of the Guarantor and its Restricted Subsidiaries (less
applicable depreciation, amortization and other valuation reserves), except
to the extent resulting from write-ups of capital assets (excluding write-
ups in connection with accounting for acquisitions in conformity with
GAAP), after deducting therefrom (i) all current liabilities of the
Guarantor and its Restricted Subsidiaries (excluding intercompany items)
and (ii) all goodwill, trade names, trademarks, patents, unamortized debt
discount and expense and other like intangibles, all as set forth on the
most recently available quarterly or annual consolidated balance sheet of
the Guarantor and its Restricted Subsidiaries, prepared in conformity with
GAAP.
"Affiliate" means, as applied to any Person, any other Person
directly or indirectly controlling, controlled by, or under direct or
indirect common control with, such Person. For purposes of this
definition, "control" (including, with correlative meanings, the terms
"controlling," "controlled by" and "under common control with"), as applied
to any Person, means the possession, directly or indirectly, of the power
to direct or cause the direction of the management and policies of such
Person, whether through the ownership of voting securities, by contract or
otherwise.
"Agent" means any Registrar, Paying Agent, authenticating agent
or co-Registrar.
"Agent Members" has the meaning provided in Section 2.07(a).
"Asset Acquisition" means (i) an investment by the Guarantor or
any of its Restricted Subsidiaries in any other Person pursuant to which
such Person shall become a Restricted Subsidiary of the Guarantor or shall
be merged into or consolidated with the Guarantor or any of its Restricted
Subsidiaries; provided that such Person's primary business is related,
ancillary or complementary to the businesses of the Guarantor and its
Restricted Subsidiaries on the date of such investment or (ii) an
acquisition by the Guarantor or any of its Restricted Subsidiaries of the
property and assets of any Person other than the Guarantor or any of its
Restricted Subsidiaries that constitute substantially all of a division or
line of business of such Person; provided that the property and assets
acquired are related, ancillary or complementary to the businesses of the
Guarantor and its Restricted Subsidiaries on the date of such acquisition.
"Asset Sale" means any sale, transfer or other disposition
(including by way of merger, consolidation or sale-leaseback transactions)
in one transaction or a series of related transactions by the Guarantor or
any of its Restricted Subsidiaries to any Person other than the Guarantor
or any of its Restricted Subsidiaries of (i) all or any of the Capital
Stock of any Restricted Subsidiary, (ii) all or substantially all of the
property and assets of an operating unit or business of the Guarantor or
any of its Restricted Subsidiaries or (iii) any other property and assets
of the Guarantor or any of its Restricted Subsidiaries outside the ordinary
course of business of the Guarantor or such Restricted Subsidiary and, in
each case, that is not governed by the provisions of Article Five; provided
that the meaning of "Asset Sale" shall not include (A) sales or other
dispositions of inventory, receivables and other current assets, and (B)
dispositions of assets of the Guarantor or any of its Restricted
Subsidiaries, in substantially simultaneous exchanges for consideration
consisting of any combination of cash, Temporary Cash Investments and
assets that are used or useful in the telecommunications business of the
Guarantor or its Restricted Subsidiaries, if such consideration has an
aggregate fair market value substantially equal to the fair market value of
the assets so disposed of; provided, however, that fair market value shall
be determined in good faith by the Board of Directors of the Company, whose
determination shall be conclusive and evidenced by a Board Resolution
delivered to the Trustee; and provided further that any cash or Temporary
Cash Investments received by the Guarantor or any of its Restricted
Subsidiaries pursuant to any transaction described in clause (B) above
shall be applied in accordance with clause (A) or (B) of the first
paragraph of Section 4.11.
"Average Life" means, at any date of determination with respect
to any debt security, the quotient obtained by dividing (i) the sum of the
products of (a) the number of years from such date of determination to the
dates of each successive scheduled principal payment of such debt security
and (b) the amount of such principal payment by (ii) the sum of all such
principal payments.
"Board of Directors" means the Board of Directors of the Company
or the Guarantor as required by the context or any committee of such Board
of Directors duly authorized to act under this Indenture.
"Board Resolution" means a copy of a resolution, certified by the
Secretary or Assistant Secretary of the Company or the Guarantor as
required by the context to have been duly adopted by the Board of Directors
and to be in full force and effect on the date of such certification, and
delivered to the Trustee.
"Business Day" means any day except a Saturday, Sunday or other
day on which commercial banks in The City of New York, or in the city of
the Corporate Trust Office of the Trustee, are authorized by law to close.
"Capital Stock" means, with respect to any Person, any and all
shares, interests, participations or other equivalents (however designated,
whether voting or non-voting) in equity of such Person, whether now
outstanding or issued after the date of this Indenture, including, without
limitation, all Common Stock and preferred stock.
"Capitalized Lease" means, as applied to any Person, any lease of
any property (whether real, personal or mixed) of which the discounted
present value of the rental obligations of such Person as lessee, in
conformity with GAAP, is required to be capitalized on the balance sheet of
such Person; and "Capitalized Lease Obligations" means the discounted
present value of the rental obligations under such lease.
"Change of Control" means such time as (i) a "person" or "group"
(within the meaning of Sections 13(d) and 14(d)(2) of the Exchange Act)
becomes the ultimate "beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act) of Voting Stock having more than 40% of the voting power of
the total Voting Stock of the Guarantor on a fully diluted basis; (ii)
individuals who on the Closing Date constitute the Board of Directors of
the Guarantor (together with any new directors whose election by the Board
of Directors or whose nomination for election by the Guarantor's
stockholders was approved by a vote of at least a majority of the members
of the Board of Directors then in office who either were members of the
Board of Directors on the Closing Date or whose election or nomination for
election was previously so approved) cease for any reason to constitute a
majority of the members of the Board of Directors then in office; or (iii)
all of the Common Stock of the Company is not beneficially owned by the
Guarantor.
"Change of Control Offer" has the meaning provided in Section
4.04(ix).
"ChoiceCom" means CSW/ICG ChoiceCom, L.P., a Delaware limited
partnership.
"Closing Date" means the date on which the Securities are
originally issued under this Indenture.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act or, if at any
time after the execution of this instrument such Commission is not existing
and performing the duties now assigned to it under the TIA, then the body
performing such duties at such time.
"Common Stock" means, with respect to any Person, any and all
shares, interests, participations or other equivalents (however designated,
whether voting or non-voting) of such Person's common equity interests,
whether now outstanding or issued after the date of this Indenture,
including, without limitation, all series and classes of such common equity
interests, but excluding all equity interests entitled to a preference with
respect to dividends or distributions or upon liquidation.
"Company" means the party named as such in the first paragraph of
this Indenture until a successor replaces it pursuant to Article Five of
this Indenture and thereafter means the successor.
"Company Order" means a written request or order signed in the
name of the Company (i) by its Chairman, a Vice Chairman, its President or
a Vice President and (ii) by its Treasurer, an Assistant Treasurer, its
Secretary or an Assistant Secretary and delivered to the Trustee; provided,
however, that such written request or order may be signed by any two of the
officers or directors listed in clause (i) above in lieu of being signed by
one of such officers or directors listed in such clause (i) and one of the
officers listed in clause (ii) above.
"Consolidated EBITDA" means, for any period, the sum of the
amounts for such period of (i) Adjusted Consolidated Net Income, (ii)
Consolidated Interest Expense, (iii) income taxes, to the extent such
amount was deducted in calculating Adjusted Consolidated Net Income (other
than income taxes (either positive or negative) attributable to
extraordinary and non-recurring gains or losses or sales of assets), (iv)
depreciation expense, to the extent such amount was deducted in calculating
Adjusted Consolidated Net Income, (v) amortization expense, to the extent
such amount was deducted in calculating Adjusted Consolidated Net Income,
and (vi) all other non-cash items reducing Adjusted Consolidated Net Income
(other than items that will require cash payments and for which an accrual
or reserve is, or is required by GAAP to be, made), less all non-cash items
increasing Adjusted Consolidated Net Income, all as determined on a
consolidated basis for the Guarantor and its Restricted Subsidiaries in
conformity with GAAP; provided that, if any Restricted Subsidiary is not a
Wholly Owned Restricted Subsidiary, Consolidated EBITDA shall be reduced
(to the extent not otherwise reduced in accordance with GAAP) by an amount
equal to (A) the amount of the Adjusted Consolidated Net Income
attributable to such Restricted Subsidiary multiplied by (B) the quotient
of (1) the number of shares of outstanding Common Stock of such Restricted
Subsidiary not owned on the last day of such period by the Guarantor or any
of its Restricted Subsidiaries divided by (2) the total number of shares of
outstanding Common Stock of such Restricted Subsidiary on the last day of
such period.
"Consolidated Indebtedness" means the aggregate amount of
Indebtedness of the Guarantor, the Company and their Restricted
Subsidiaries on a consolidated basis.
"Consolidated Interest Expense" means, for any period, the
aggregate amount of interest in respect of Indebtedness (including
amortization of original issue discount on any Indebtedness and the
interest portion of any deferred payment obligation, calculated in
accordance with the effective interest method of accounting; all
commissions, discounts and other fees and charges owed with respect to
letters of credit and bankers' acceptance financing; the net costs
associated with Interest Rate Agreements; and Indebtedness that is
Guaranteed or secured by the Guarantor or any of its Restricted
Subsidiaries) and all but the principal component of rentals in respect of
Capitalized Lease Obligations paid, accrued or scheduled to be paid or to
be accrued by the Guarantor and its Restricted Subsidiaries during such
period; excluding, however, without duplication, (i) any amount of such
interest of any Restricted Subsidiary if the net income of such Restricted
Subsidiary is excluded in the calculation of Adjusted Consolidated Net
Income pursuant to clause (iii) of the definition thereof (but only in the
same proportion as the net income of such Restricted Subsidiary is excluded
from the calculation of Adjusted Consolidated Net Income pursuant to clause
(iii) of the definition thereof) and (ii) any premiums, fees and expenses
(and any amortization thereof) payable in connection with the offering of
the 13 1/2% Notes and the warrants issued therewith, the 12 1/2% Notes, the
14 1/4% Preferred Stock, the Securities and/or the Exchangeable Preferred
Stock, all as determined on a consolidated basis (without taking into
account Unrestricted Subsidiaries) in conformity with GAAP.
"Consolidated Net Worth" means, at any date of determination,
stockholders' equity as set forth on the most recently available quarterly
or annual consolidated balance sheet of the Guarantor and its Restricted
Subsidiaries (which shall be as of a date not more than 90 days prior to
the date of such computation, and which shall not take into account
Unrestricted Subsidiaries), less any amounts attributable to Redeemable
Stock or any equity security convertible into or exchangeable for
Indebtedness, the cost of treasury stock and the principal amount of any
promissory notes receivable from the sale of the Capital Stock of the
Guarantor or any of its Restricted Subsidiaries, each item to be determined
in conformity with GAAP (excluding the effects of foreign currency exchange
adjustments under Financial Accounting Standards Board Statement of
Financial Accounting Standards No. 52).
"Corporate Trust Office" means the office of the Trustee at which
the corporate trust business of the Trustee shall, at any particular time,
be principally administered, which office is, at the date of this
Indenture, located at 1740 Broadway, Denver, Colorado 80274-8693,
Attention: Corporate Trust and Escrow Services.
"Currency Agreement" means any foreign exchange contract,
currency swap agreement or other similar agreement or arrangement designed
to protect the Guarantor or any of its Restricted Subsidiaries against
fluctuations in currency values to or under which the Guarantor or any of
its Restricted Subsidiaries is a party or a beneficiary on the date of this
Indenture or becomes a party or a beneficiary thereafter.
"Default" means any event that is, or after notice or passage of
time or both would be, an Event of Default.
"Depositary" shall mean The Depository Trust Company, its
nominees, and their respective successors.
"Event of Default" has the meaning provided in Section 6.01.
"Excess Proceeds" has the meaning provided in Section 4.11.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange Securities" means any securities of the Company
containing terms identical to the Securities (except that such Exchange
Securities (i) shall be registered under the Securities Act, (ii) will not
provide for an increase in the rate of interest (other than with respect to
overdue amounts) and (iii) will not contain terms with respect to transfer
restrictions) that are issued and exchanged for the Securities pursuant to
the Registration Rights Agreement and this Indenture.
"Exchangeable Preferred Stock" means the Preferred Stock of the
Company issued on the Closing Date and any shares of Preferred Stock issued
as payment in kind dividends thereon.
"FOTI" means Fiber Optic Technologies Inc., a Colorado
corporation.
"14 1/4% Preferred Stock" means the 14 1/4% Exchangeable
Preferred Stock mandatorily redeemable May 1, 2007 of the Company, and any
shares of preferred stock issued as payment in kind dividends thereon.
"GAAP" means generally accepted accounting principles in the
United States of America as in effect as of August 8, 1995, including,
without limitation, those set forth in the opinions and pronouncements of
the Accounting Principles Board of the American Institute of Certified
Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board or in such other statements by such other entity
as approved by a significant segment of the accounting profession. All
ratios and computations contained in this Indenture shall be computed in
conformity with GAAP applied on a consistent basis, except that
calculations made for purposes of determining compliance with the terms of
the covenants and with other provisions of this Indenture shall be made
without giving effect to (i) the amortization of any expenses incurred in
connection with the offering of the 13 1/2% Notes and the warrants issued
therewith, the 12 1/2% Notes, the 14 1/4% Preferred Stock, the Securities
and/or the Exchangeable Preferred Stock and (ii) except as otherwise
provided, the amortization of any amounts required or permitted by
Accounting Principles Board Opinion Nos. 16 and 17.
"Global Securities" has the meaning provided in Section 2.01.
"Guarantee" means any obligation, contingent or otherwise, of any
Person directly or indirectly guaranteeing any Indebtedness or other
obligation of any other Person and, without limiting the generality of the
foregoing, any obligation, direct or indirect, contingent or otherwise, of
such Person (i) to purchase or pay (or advance or supply funds for the
purchase or payment of) such Indebtedness or other obligation of such other
Person (whether arising by virtue of partnership arrangements, or by
agreements to keep-well, to purchase assets, goods, securities or services,
to take-or-pay, or to maintain financial statement conditions or otherwise)
or (ii) entered into for purposes of assuring in any other manner the
obligee of such Indebtedness or other obligation of the payment thereof or
to protect such obligee against loss in respect thereof (in whole or in
part); provided that the term "Guarantee" shall not include endorsements
for collection or deposit in the ordinary course of business. The term
"Guarantee" used as a verb has a corresponding meaning.
"Guaranteed Indebtedness" has the meaning provided in Section
4.07.
"Guarantor" means the party named as such in the first paragraph
of this Indenture until a successor replaces it pursuant to Article Five of
this Indenture and thereafter means the successor.
"Holder" or "Securityholder" means the registered holder of any
Security.
"Holdings (Canada)" means ICG Holdings (Canada), Inc. and its
successors and assigns.
"Incur" means, with respect to any Indebtedness, to incur,
create, issue, assume, Guarantee or otherwise become liable for or with
respect to, or become responsible for, the payment of, contingently or
otherwise, such Indebtedness, including an Incurrence of Indebtedness by
reason of the acquisition of more than 50% of the Capital Stock of any
Person; provided that neither the accrual of interest nor the accretion of
original issue discount shall be considered an Incurrence of Indebtedness.
The term "Incurrence" has a corresponding meaning.
"Indebtedness" means, with respect to any Person at any date of
determination (without duplication), (i) all indebtedness of such Person
for borrowed money, (ii) all obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments, (iii) all obligations of
such Person in respect of letters of credit or other similar instruments
(including reimbursement obligations with respect thereto), (iv) all
obligations of such Person to pay the deferred and unpaid purchase price of
property or services, which purchase price is due more than six months
after the date of placing such property in service or taking delivery and
title thereto or the completion of such services, except Trade Payables,
(v) all obligations of such Person as lessee under Capitalized Leases, (vi)
all Indebtedness of other Persons secured by a Lien on any asset of such
Person, whether or not such Indebtedness is assumed by such Person;
provided that the amount of such Indebtedness shall be the lesser of (A)
the fair market value of such asset at such date of determination and (B)
the amount of such Indebtedness, (vii) all Indebtedness of other Persons
Guaranteed by such Person to the extent such Indebtedness is Guaranteed by
such Person and (viii) to the extent not otherwise included in this
definition, obligations under Currency Agreements and Interest Rate
Agreements. The amount of Indebtedness of any Person at any date shall be
the outstanding balance at such date of all unconditional obligations as
described above and, with respect to contingent obligations, the maximum
liability upon the occurrence of the contingency giving rise to the
obligation, provided (i) that the amount outstanding at any time of any
Indebtedness issued with original issue discount is the original issue
price of such Indebtedness and (ii) that Indebtedness shall not include (A)
any amount of money borrowed, at the time of the Incurrence of the related
Indebtedness, for the purpose of pre-funding any interest payable on such
related Indebtedness or (B) any liability for federal, state, local or
other taxes.
"Indebtedness to EBITDA Ratio" means, as at any date of
determination, the ratio of (i) the Consolidated Indebtedness as at the
Transaction Date to (ii) the Consolidated EBITDA of the Guarantor for the
then most recent four full fiscal quarters for which reports have been
filed pursuant to Section 4.18 (such four full fiscal quarter period being
referred to herein as the "Four Quarter Period"); provided that (x) pro
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forma effect shall be given to any Indebtedness Incurred from the beginning
of the Four Quarter Period through the Transaction Date (including any
Indebtedness Incurred on the Transaction Date), to the extent outstanding
on the Transaction Date, (y) if during the period commencing on the first
day of such Four Quarter Period through the Transaction Date (the
"Reference Period"), the Guarantor, the Company or any of the Restricted
----------------
Subsidiaries shall have engaged in any Asset Sale, Consolidated EBITDA for
such period shall be reduced by an amount equal to the EBITDA (if
positive), or increased by an amount equal to the EBITDA (if negative),
directly attributable to the assets which are the subject of such Asset
Sale and any related retirement of Indebtedness as if such Asset Sale and
related retirement of Indebtedness had occurred on the first day of such
Reference Period or (z) if during such Reference Period the Guarantor, the
Company or any of the Restricted Subsidiaries shall have made any Asset
Acquisition, Consolidated EBITDA of the Guarantor shall be calculated on a
pro forma basis as if such Asset Acquisition and any related financing had
occurred on the first day of such Reference Period.
"Indenture" means this Indenture as originally executed or as it
may be amended or supplemented from time to time by one or more indentures
supplemental to this Indenture entered into pursuant to the applicable
provisions of this Indenture.
"Institutional Accredited Investor" shall mean an institution
that is an "accredited investor" as that term is defined in Rule 501(a)(1),
(2), (3) or (7) of Regulation D under the Securities Act.
"Interest Payment Date" means each semiannual interest payment
date on March 15 and September 15 of each year, commencing September 15,
2002.
"Interest Rate Agreement" means any interest rate protection
agreement, interest rate future agreement, interest rate option agreement,
interest rate swap agreement, interest rate cap agreement, interest rate
collar agreement, interest rate hedge agreement or other similar agreement
or arrangement designed to protect the Guarantor or any of its Restricted
Subsidiaries against fluctuations in interest rates in respect of
Indebtedness to or under which the Guarantor or any of its Restricted
Subsidiaries is a party or a beneficiary on the date of this Indenture or
becomes a party or a beneficiary hereafter; provided that the notional
principal amount thereof does not exceed the principal amount of the
Indebtedness of the Guarantor and its Restricted Subsidiaries that bears
interest at floating rates.
"Investment" in any Person means any direct or indirect advance,
loan or other extension of credit (including, without limitation, by way of
Guarantee or similar arrangement; but excluding advances to customers in
the ordinary course of business that are, in conformity with GAAP, recorded
as accounts receivable on the balance sheet of the Guarantor or its
Restricted Subsidiaries) or capital contribution to (by means of any
transfer of cash or other property to others or any payment for property or
services for the account or use of others), or any purchase or acquisition
of Capital Stock, bonds, notes, debentures or other similar instruments
issued by, such Person and shall include the designation of a Restricted
Subsidiary as an Unrestricted Subsidiary. For purposes of the definition
of "Unrestricted Subsidiary" and Section 4.04, (i) "Investment" shall
include the fair market value of the assets (net of liabilities) of any
Restricted Subsidiary of the Guarantor at the time that such Restricted
Subsidiary of the Guarantor is designated an Unrestricted Subsidiary and
shall exclude the fair market value of the assets (net of liabilities) of
any Unrestricted Subsidiary at the time that such Unrestricted Subsidiary
is designated a Restricted Subsidiary of the Guarantor and (ii) any
property transferred to or from an Unrestricted Subsidiary shall be valued
at its fair market value at the time of such transfer, in each case as
determined by the Board of Directors in good faith.
"Lien" means any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind (including, without limitation, any
conditional sale or other title retention agreement or lease in the nature
thereof, any sale with recourse against the seller or any Affiliate of the
seller, or any agreement to give any security interest).
"MTN" means Maritime Telecommunications Network, Inc., a Colorado
corporation, and its successors.
"Net Cash Proceeds" means (a) with respect to any Asset Sale, the
proceeds of such Asset Sale in the form of cash or cash equivalents,
including payments in respect of deferred payment obligations (to the
extent corresponding to the principal, but not interest, component thereof)
when received in the form of cash or cash equivalents (except to the extent
such obligations are financed or sold with recourse to the Guarantor or any
Restricted Subsidiary of the Guarantor) and proceeds from the conversion of
other property received when converted to cash or cash equivalents, net of
(i) brokerage commissions and other fees and expenses (including fees and
expenses of counsel and investment bankers) related to such Asset Sale,
(ii) provisions for all taxes (whether or not such taxes will actually be
paid or are payable) as a result of such Asset Sale without regard to the
consolidated results of operations of the Guarantor and its Restricted
Subsidiaries, taken as a whole, (iii) payments made to repay Indebtedness
or any other obligation outstanding at the time of such Asset Sale that
either (A) is secured by a Lien on the property or assets sold or (B) is
required to be paid as a result of such sale and (iv) appropriate amounts
to be provided by the Guarantor or any Restricted Subsidiary of the
Guarantor as a reserve against any liabilities associated with such Asset
Sale, including, without limitation, pension and other post-employment
benefit liabilities, liabilities related to environmental matters and
liabilities under any indemnification obligations associated with such
Asset Sale, all as determined in conformity with GAAP and (b) with respect
to any issuance or sale of Capital Stock, the proceeds of such issuance or
sale in the form of cash or cash equivalents, including payments in respect
of deferred payment obligations (to the extent corresponding to the
principal, but not interest, component thereof) when received in the form
of cash or cash equivalents (except to the extent such obligations are
financed or sold with recourse to the Guarantor or any Restricted
Subsidiary of the Guarantor) and proceeds from the conversion of other
property received when converted to cash or cash equivalents, net of
attorney's fees, accountants' fees, underwriters' or placement agents'
fees, discounts or commissions and brokerage, consultant and other fees
incurred in connection with such issuance or sale and net of taxes paid or
payable as a result thereof.
"Non-U.S. Person" means a person who is not a U.S. person, as
defined in Regulation S.
"Offer to Purchase" means an offer to purchase Securities by the
Company from the Holders commenced by mailing a notice to the Trustee and
each Holder stating: (i) the covenant pursuant to which the offer is being
made and that all Securities validly tendered will be accepted for payment
on a pro rata basis; (ii) the purchase price and the Payment Date; (iii)
that any Security not tendered will continue to accrue interest pursuant to
its terms; (iv) that, unless the Company defaults in the payment of the
purchase price, any Security accepted for payment pursuant to the Offer to
Purchase shall cease to accrue interest on and after the Payment Date; (v)
that Holders electing to have a Security purchased pursuant to the Offer to
Purchase will be required to surrender the Security, together with the form
entitled "Option of the Holder to Elect Purchase" on the reverse side of
the Security completed, to the Paying Agent at the address specified in the
notice prior to the close of business on the Business Day immediately
preceding the Payment Date; (vi) that Holders will be entitled to withdraw
their election if the Paying Agent receives, not later than the close of
business on the third Business Day immediately preceding the Payment Date,
a telegram, facsimile transmission or letter setting forth the name of such
Holder, the principal amount of Securities delivered for purchase and a
statement that such Holder is withdrawing his election to have such
Securities purchased; and (vii) that Holders whose Securities are being
purchased only in part will be issued new Securities equal in principal
amount to the unpurchased portion of the Securities surrendered; provided
that each Security purchased and each new Security issued shall be in a
principal amount of $1,000 or integral multiples thereof. On the Payment
Date, the Company shall (i) accept for payment on a pro rata basis
Securities or portions thereof tendered pursuant to an Offer to Purchase;
(ii) deposit with the Paying Agent money sufficient to pay the purchase
price of all Securities or portions thereof so accepted; and (iii) deliver,
or cause to be delivered, to the Trustee all Securities or portions thereof
so accepted together with an Officers' Certificate specifying the
Securities or portions thereof accepted for payment by the Company. The
Paying Agent shall promptly mail to the Holders of Securities so accepted
payment in an amount equal to the purchase price, and the Trustee shall
promptly authenticate and mail to such Holders a new Security equal in
principal amount to any unpurchased portion of the Security surrendered;
provided that each Security purchased and each new Security issued shall be
in a principal amount of $1,000 or integral multiples thereof. The Company
will publicly announce the results of an Offer to Purchase as soon as
practicable after the Payment Date. The Trustee shall act as the Paying
Agent for an Offer to Purchase. The Company will comply with Rule 14e-1
under the Exchange Act and any other securities laws and regulations
thereunder to the extent such laws and regulations are applicable, in the
event that the Company is required to repurchase Securities pursuant to an
Offer to Purchase.
"Officer" means, with respect to the Company or the Guarantor,
(i) the Chairman of the Board, the President, any Vice President or the
Chief Financial Officer and (ii) the Treasurer or any Assistant Treasurer,
or the Secretary or any Assistant Secretary.
"Officers' Certificate" means a certificate signed by one Officer
listed in clause (i) of the definition thereof and one Officer listed in
clause (ii) of the definition thereof; provided, however, that any such
certificate may be signed by any two of the Officers listed in clause (i)
of the definition thereof in lieu of being signed by one Officer listed in
clause (i) of the definition thereof and one Officer listed in clause (ii)
of the definition thereof. Each Officers' Certificate (other than
certificates provided pursuant to TIA Section 314(a)(4)) shall include the
statements provided for in TIA Section 314(e).
"Offshore Global Security" has the meaning provided in Section
2.01.
"Offshore Physical Securities" has the meaning provided in
Section 2.01.
"Ohio LINX" means ICG Ohio LINX, Inc., an Ohio corporation.
"Opinion of Counsel" means a written opinion signed by legal
counsel who may be an employee of or counsel to the Company. Each such
Opinion of Counsel shall include the statements provided for in TIA Section
314(e).
"Outstanding Securities" has the meaning provided in
Section 2.10.
"Paying Agent" has the meaning provided in Section 2.04, except
that, for the purposes of Article Eight, the Paying Agent shall not be the
Company or a Subsidiary of the Company or an Affiliate of any of them. The
term "Paying Agent" includes any additional Paying Agent.
"Payment Date" means the date of purchase, which shall be a
Business Day no earlier than 30 days nor later than 60 days from the date a
notice is mailed pursuant to an Offer to Purchase.
"Permitted Investment" means (i) an Investment in a Restricted
Subsidiary or a Person which will, upon the making of such Investment,
become a Restricted Subsidiary or be merged or consolidated with or into or
transfer or convey all or substantially all its assets to, the Guarantor or
a Restricted Subsidiary; provided that such person's primary business is
related, ancillary or complementary to the businesses of the Guarantor and
its Restricted Subsidiaries on the date of such Investment; (ii) a
Temporary Cash Investment; (iii) payroll, travel and similar advances to
cover matters that are expected at the time of such advances ultimately to
be treated as expenses in accordance with GAAP; (iv) loans or advances to
employees made in the ordinary course of business in accordance with past
practice of the Guarantor or its Restricted Subsidiaries and that do not in
the aggregate exceed $2 million at any time outstanding; (v) stock,
obligations or securities received in satisfaction of judgments; and (vi)
Investments in an amount not to exceed, at any one time outstanding, all of
the net cash proceeds received by the Guarantor from the sale of its Common
Stock (to a Person other than one of its Subsidiaries) after the Closing
Date.
"Permitted Liens" means (i) Liens for taxes, assessments,
governmental charges or claims that are being contested in good faith by
appropriate legal proceedings promptly instituted and diligently conducted
and for which a reserve or other appropriate provision, if any, as shall be
required in conformity with GAAP shall have been made; (ii) statutory Liens
of landlords and carriers, warehousemen, mechanics, suppliers, materialmen,
repairmen or other similar Liens arising in the ordinary course of business
and with respect to amounts not yet delinquent or being contested in good
faith by appropriate legal proceedings promptly instituted and diligently
conducted and for which a reserve or other appropriate provision, if any,
as shall be required in conformity with GAAP shall have been made; (iii)
Liens incurred or deposits made in the ordinary course of business in
connection with workers' compensation, unemployment insurance and other
types of social security; (iv) Liens incurred or deposits made to secure
the performance of tenders, bids, leases, statutory or regulatory
obligations, bankers' acceptances, surety and appeal bonds, government
contracts, performance and return-of-money bonds and other obligations of a
similar nature incurred in the ordinary course of business (exclusive of
obligations for the payment of borrowed money); (v) easements, rights of
way, municipal and zoning ordinances and similar charges, encumbrances,
title defects or other irregularities that do not materially interfere with
the ordinary course of business of the Guarantor or any of its Restricted
Subsidiaries; (vi) Liens (including extensions and renewals thereof) upon
real or personal property acquired after the Closing Date; provided that
(a) such Lien is created solely for the purpose of securing Indebtedness
Incurred, in accordance with Section 4.03, (1) to finance the cost
(including the cost of improvement or construction) of the item of property
or assets subject thereto and such Lien is created prior to, at the time of
or within six months after the later of the acquisition, the completion of
construction or the commencement of full operation of such property or (2)
to refinance any Indebtedness previously so secured, (b) the principal
amount of the Indebtedness secured by such Lien does not exceed 100% of
such cost and (c) any such Lien shall not extend to or cover any property
or assets other than such item of property or assets and any improvements
on such item; (vii) leases or subleases granted to others that do not
materially interfere with the ordinary course of business of the Guarantor
and its Restricted Subsidiaries, taken as a whole; (viii) Liens encumbering
property or assets under construction arising from progress or partial
payments by a customer of the Guarantor or its Restricted Subsidiaries
relating to such property or assets; (ix) any interest or title of a lessor
in the property subject to any Capitalized Lease or operating lease; (x)
Liens arising from filing Uniform Commercial Code financing statements
regarding leases; (xi) Liens on property of, or on shares of stock or
Indebtedness of, any corporation existing at the time such corporation
becomes, or becomes a part of, any Restricted Subsidiary; provided that
such Liens do not extend to or cover any property or assets of the
Guarantor or any Restricted Subsidiary other than the property or assets
acquired; (xii) Liens in favor of the Guarantor or any Restricted
Subsidiary; (xiii) Liens arising from the rendering of a final judgment or
order against the Guarantor or any Restricted Subsidiary of the Guarantor
that does not give rise to an Event of Default; (xiv) Liens securing
reimbursement obligations with respect to letters of credit that encumber
documents and other property relating to such letters of credit and the
products and proceeds thereof; (xv) Liens in favor of customs and revenue
authorities arising as a matter of law to secure payment of customs duties
in connection with the importation of goods; (xvi) Liens encumbering
customary initial deposits and margin deposits, and other Liens that are
either within the general parameters customary in the industry and incurred
in the ordinary course of business, in each case, securing Indebtedness
under Interest Rate Agreements and Currency Agreements and forward
contracts, options, future contracts, futures options or similar agreements
or arrangements designed to protect the Guarantor or any of its Restricted
Subsidiaries from fluctuations in the price of commodities; (xvii) Liens
arising out of conditional sale, title retention, consignment or similar
arrangements for the sale of goods entered into by the Guarantor or any of
its Restricted Subsidiaries in the ordinary course of business in
accordance with the past practices of the Guarantor and its Restricted
Subsidiaries prior to the Closing Date; and (xviii) Liens on or sales of
receivables.
"Person" means an individual, a corporation, a partnership, a
limited liability company, an association, a trust or any other entity or
organization, including a government or political subdivision or an agency
or instrumentality thereof.
"Physical Securities" has the meaning provided in Section 2.01.
"Preferred stock" or "preferred stock" means, with respect to any
Person, any and all shares, interests, participations or other equivalents
(however designated, whether voting or non-voting) of such Person's
preferred or preference stock, whether now outstanding or issued after the
date of this Indenture, including, without limitation, all series and
classes of such preferred or preference stock.
"principal" of a debt security, including the Securities, means
the principal amount due on the Stated Maturity as shown on such debt
security.
"Private Placement Legend" means the legend initially set forth
on the Securities in the form set forth in Section 2.02.
"Public Equity Offering" means a bona fide underwritten primary
public offering of Common Stock of the Guarantor or the Company pursuant to
an effective registration statement under the Securities Act.
"QIB" means a "qualified institutional buyer" as defined in Rule
144A.
"Redeemable Stock" means any class or series of Capital Stock of
any Person that by its terms or otherwise is (i) required to be redeemed
prior to the Stated Maturity of the Securities, (ii) redeemable at the
option of the holder of such class or series of Capital Stock at any time
prior to the Stated Maturity of the Securities or (iii) convertible into or
exchangeable for Capital Stock referred to in clause (i) or (ii) above or
Indebtedness having a scheduled maturity prior to the Stated Maturity of
the Securities; provided that any Capital Stock that would not constitute
Redeemable Stock but for provisions thereof giving holders thereof the
right to require such Person to repurchase or redeem such Capital Stock
upon the occurrence of an "asset sale" or "change of control" occurring
prior to the Stated Maturity of the Securities shall not constitute
Redeemable Stock if the "asset sale" or "change of control" provisions
applicable to such Capital Stock are no more favorable to the holders of
such Capital Stock than the provisions contained in Sections 4.11 and 4.12
and such Capital Stock specifically provides that such Person will not
repurchase or redeem any such stock pursuant to such provision prior to the
Guarantor's repurchase of such Securities as are required to be repurchased
pursuant to the provisions of Sections 4.11 and 4.12.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which such Security is to be redeemed pursuant
to this Indenture.
"Registrar" has the meaning provided in Section 2.04.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated March 11, 1997, among the Company, the Guarantor and
Morgan Stanley & Co. Incorporated relating to the Securities.
"Registration Statement" means the Registration Statement as
defined and described in the Registration Rights Agreement.
"Regular Record Date" for the interest payable on any Interest
Payment Date means the March 1 or September 1 (whether or not a Business
Day), as the case may be, next preceding such Interest Payment Date.
"Regulation S" means Regulation S under the Securities Act.
"Responsible Officer", when used with respect to the Trustee,
means the chairman or any vice chairman of the board of directors, the
chairman or any vice chairman of the executive committee of the board of
directors, the chairman of the trust committee, the president, any vice
president, any assistant vice president, the secretary, any assistant
secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any trust officer or assistant trust officer, the
controller or any assistant controller or any other officer of the Trustee
customarily performing functions similar to those performed by any of the
above designated officers and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of his or her knowledge of and familiarity with the particular
subject.
"Restricted Payments" has the meaning provided in Section 4.04.
"Restricted Subsidiary" means any Subsidiary of the Guarantor
other than an Unrestricted Subsidiary.
"Rule 144A" means Rule 144A under the Securities Act.
"Securities" means any of the securities, as defined in the first
paragraph of the recitals hereof, that are authenticated and delivered
under this Indenture. For all purposes of this Indenture, the term
"Securities" shall include any Exchange Securities to be issued and
exchanged for any Securities pursuant to the Registration Rights Agreement
and this Indenture and, for purposes of this Indenture, all Securities and
Exchange Securities shall vote together as one series of Securities under
this Indenture.
"Securities Act" means the Securities Act of 1933, as amended.
"Security Guarantee" means the unconditional guarantee of the
Securities by the Guarantor, as set forth in Article 10.
"Security Register" has the meaning provided in Section 2.04.
"Significant Subsidiary" means, at any date of determination, any
Restricted Subsidiary of the Guarantor that, together with its
Subsidiaries, (i) for the most recent fiscal year of the Guarantor,
accounted for more than 10% of the consolidated revenues of the Guarantor
and its Restricted Subsidiaries or (ii) as of the end of such fiscal year,
was the owner of more than 10% of the consolidated assets of the Guarantor
and its Restricted Subsidiaries, all as set forth on the most recently
available consolidated financial statements of the Guarantor for such
fiscal year.
"Specified Date" means any redemption date, any date of purchase
for any purchase of Securities pursuant to Section 4.11 or 4.12 or any date
on which the Securities are due and payable after an Event of Default.
"StarCom" means StarCom International Optics Corporation, a
British Columbia corporation, and its subsidiaries.
"Stated Maturity" means, (i) with respect to any debt security,
the date specified in such debt security as the fixed date on which the
final installment of principal of such debt security is due and payable and
(ii) with respect to any scheduled installment of principal of or interest
on any debt security, the date specified in such debt security as the fixed
date on which such installment is due and payable.
"Strategic Investor" means any Person engaged in the
telecommunications business which has a net worth or equity market
capitalization of at least $1 billion.
"Strategic Investor Subordinated Indebtedness" means all
Indebtedness of the Company owed to a Strategic Investor that is
contractually subordinate in right of payment to the Securities to at least
the following extent: no payment of principal (or premium, if any) or
interest on or otherwise payable in respect of such Indebtedness may be
made (whether as a result of a default or otherwise) prior to the payment
in full of all of the Guarantor's and the Company's obligations under the
Securities, provided, however, that prior to the payment of such
obligations, interest on Strategic Investor Subordinated Indebtedness may
be payable solely in kind or in Common Stock (other than Redeemable Stock)
of the Guarantor.
"Subsidiary" means, with respect to any Person, any corporation,
association or other business entity of which more than 50% of the
outstanding Voting Stock is owned, directly or indirectly, by such Person
and one or more other Subsidiaries of such Person.
"Subsidiary Guarantee" has the meaning provided in Section 4.07.
"Temporary Cash Investment" means any of the following: (i)
direct obligations of the United States of America or any agency thereof or
obligations fully and unconditionally guaranteed by the United States of
America or any agency thereof, (ii) time deposit accounts, certificates of
deposit and money market deposits maturing within 270 days of the date of
acquisition thereof, bankers' acceptances with maturities not exceeding 270
days, and overnight bank deposits, in each case issued by or with a bank or
trust company which is organized under the laws of the United States of
America, any state thereof or any foreign country recognized by the United
States, and which bank or trust company has capital, surplus and undivided
profits aggregating in excess of $100 million (or the foreign currency
equivalent thereof) and has outstanding debt which is rated "A" (or such
similar equivalent rating) or higher by at least one nationally recognized
statistical rating organization (as defined in Rule 436 under the
Securities Act) or any money-market fund sponsored by a registered broker
dealer or mutual fund distributor, (iii) repurchase obligations with a term
of not more than 30 days for underlying securities of the types described
in clause (i) above entered into with a bank meeting the qualifications
described in clause (ii) above, (iv) commercial paper, maturing not more
than 180 days after the date of acquisition, issued by a corporation (other
than an Affiliate of the Guarantor) organized and in existence under the
laws of the United States of America, any state thereof or any foreign
country recognized by the United States of America with a rating at the
time as of which any investment therein is made of "P-1" (or higher)
according to Moody's Investors Service, Inc. or "A-1" (or higher) according
to Standard & Poor's Ratings Group, and (v) securities with maturities of
six months or less from the date of acquisition issued or fully and
unconditionally guaranteed by any state, commonwealth or territory of the
United States of America, or by any political subdivision or taxing
authority thereof, and rated at least "A" by Standard & Poor's Ratings
Group or Moody's Investors Service, Inc.
"13 1/2% Notes" means the 13 1/2% Senior Discount Notes due 2005
of the Company guaranteed by Holdings (Canada) and the Guarantor on a
senior unsecured basis.
"TIA" or "Trust Indenture Act" means the Trust Indenture Act of
1939, as amended (15 U.S. Code <Section><Section> 77aaa-77bbb), as in
effect on the date this Indenture was executed, except as provided in
Section 9.06.
"Trade Payables" means, with respect to any Person, any accounts
payable or any other debt or monetary obligation to trade creditors
created, assumed or Guaranteed by such Person or any of its Subsidiaries
arising in the ordinary course of business in connection with the
acquisition of goods or services.
"Transaction Date" means, with respect to the Incurrence of any
Indebtedness by the Guarantor or any of its Restricted Subsidiaries, the
date such Indebtedness is to be Incurred and, with respect to any
Restricted Payment, the date such Restricted Payment is to be made.
"Trustee" means the party named as such in the first paragraph of
this Indenture until a successor replaces it in accordance with the
provisions of Article Seven of this Indenture and thereafter means such
successor.
"12 1/2% Notes" means the 12 1/2% Senior Discount Notes due 2006
of the Company guaranteed by Holdings (Canada) and the Guarantor on a
senior unsecured basis.
"United States Bankruptcy Code" means the Bankruptcy Reform Act
of 1978, as amended and as codified in Title 11 of the United States Code,
as amended from time to time hereafter, or any successor federal bankruptcy
law.
"U.S. Global Security" has the meaning provided in Section 2.01.
"U.S. Government Obligations" means securities that are (i)
direct obligations of the United States of America for the payment of which
its full faith and credit is pledged or (ii) obligations of a Person
controlled or supervised by and acting as an agency or instrumentality of
the United States of America the payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United States of
America, which, in either case, are not callable or redeemable at the
option of the issuer thereof at any time prior to the Stated Maturity of
the Securities, and shall also include a depository receipt issued by a
bank or trust company as custodian with respect to any such U.S. Government
Obligation or a specific payment of interest on or principal of any such
U.S. Government Obligation held by such custodian for the account of the
holder of a depository receipt; provided that (except as required by law)
such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount received
by the custodian in respect of the U.S. Government Obligation or the
specific payment of interest on or principal of the U.S. Government
Obligation evidenced by such depository receipt.
"U.S. Person" has the meaning ascribed thereto in Rule 902 under
the Securities Act.
"U.S. Physical Securities" has the meaning provided in Section
2.01.
"Unrestricted Subsidiary" means (i) any Subsidiary of the
Guarantor that at the time of determination shall be designated an
Unrestricted Subsidiary by the Board of Directors in the manner provided
below and (ii) any Subsidiary of an Unrestricted Subsidiary. The Board of
Directors may designate any Restricted Subsidiary of the Guarantor
(including any newly acquired or newly formed Subsidiary of the Guarantor),
other than the Company or a Subsidiary that has given a Subsidiary
Guarantee, to be an Unrestricted Subsidiary unless such Subsidiary owns any
Capital Stock of, or owns or holds any Lien on any property of, the
Guarantor or any Restricted Subsidiary; provided that either (A) the
Subsidiary to be so designated has total assets of $1,000 or less or (B) if
such Subsidiary has assets greater than $1,000, that such designation would
be permitted under Section 4.04. The Board of Directors may designate any
Unrestricted Subsidiary to be a Restricted Subsidiary of the Guarantor;
provided that immediately after giving effect to such designation (x) the
Guarantor could Incur $1.00 of additional Indebtedness under the first
paragraph of Section 4.03(a) and (y) no Default or Event of Default shall
have occurred and be continuing. Any such designation by the Board of
Directors shall be evidenced to the Trustee by promptly filing with the
Trustee a copy of the Board Resolution giving effect to such designation
and an Officers' Certificate certifying that such designation complied with
the foregoing provisions.
"Voting Stock" means, with respect to any Person, Capital Stock
of any class or kind ordinarily having the power to vote for the election
of directors, managers or other voting members of the governing body of
such Person.
"Wholly Owned" means, with respect to any Subsidiary of any
Person, such Subsidiary if 98% or more of the outstanding Capital Stock in
such Subsidiary (other than any director's qualifying shares or Investments
by foreign nationals mandated by applicable law) is owned by such Person or
one or more Wholly Owned Subsidiaries of such Person.
"Zycom" means Zycom Corporation, an Alberta, Canada corporation.
SECTION 1.02. Incorporation by Reference of Trust Indenture Act.
-------------------------------------------------
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture. The
following TIA terms used in this Indenture have the following meanings:
"indenture securities" means the Securities;
"indenture security holder" means a Holder or a Securityholder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee;
and
"obligor" on the indenture securities means the Company, the
Guarantor or any other obligor on the Securities.
All other TIA terms used in this Indenture that are defined by
the TIA, defined by TIA reference to another statute or defined by a rule
of the Commission and not otherwise defined herein have the meanings
assigned to them therein.
SECTION 1.03. Rules of Construction. Unless the context
---------------------
otherwise requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(iii) "or" is not exclusive;
(iv) words in the singular include the plural, and words in the
plural include the singular;
(v) provisions apply to successive events and transactions;
(vi) "herein," "hereof" and other words of similar import refer
to this Indenture as a whole and not to any particular Article,
Section or other subdivision; and
(vii) all references to Sections or Articles refer to
Sections or Articles of this Indenture unless otherwise indicated.
ARTICLE TWO
THE SECURITIES
SECTION 2.01. Form and Dating. The Securities and the Trustee's
---------------
certificate of authentication shall be substantially in the form annexed
hereto as Exhibit A. The Securities may have such appropriate insertions,
omissions, substitutions and other variations as are required or permitted
by the Indenture and may have letters, notations, legends or endorsements
required by law, stock exchange agreements to which the Company is subject
or usage. Any portion of the text of any Security may be set forth on the
reverse thereof, with an appropriate reference thereto on the face of the
Security. The Company shall approve the form of the Securities and any
notation, legend or endorsement on the Securities. Each Security shall be
dated the date of its authentication.
The terms and provisions contained in the form of the Securities
annexed hereto as Exhibit A shall constitute, and are hereby expressly
made, a part of this Indenture. Each of the Company, the Guarantor and the
Trustee, by its execution and delivery of this Indenture, expressly agrees
to the terms and provisions of the Securities applicable to it and to be
bound thereby.
Securities offered and sold in reliance on Rule 144A shall be
issued in the form of one or more permanent global Securities in registered
form, substantially in the form set forth in Exhibit A (the "U.S. Global
------------
Security"), deposited with the Trustee, as custodian for the Depositary,
--------
duly executed by the Company and authenticated by the Trustee as
hereinafter provided. The aggregate principal amount at maturity of a U.S.
Global Security may from time to time be increased or decreased by
adjustments made on the records of the Trustee, as custodian for the
Depositary or its nominee, as hereinafter provided.
Securities offered and sold in offshore transactions in reliance
on Regulation S shall be issued in the form of one or more single permanent
global Securities in registered form substantially in the form set forth in
Exhibit A (the "Offshore Global Security") deposited with the Trustee, as
------------------------
custodian for the Depositary, duly executed by the Company and
authenticated by the Trustee as hereinafter provided. The aggregate
principal amount at maturity of an Offshore Global Security may from time
to time be increased or decreased by adjustments made in the records of the
Trustee, as custodian for the Depositary or its nominee, as herein
provided.
Securities which are offered and sold to Institutional Accredited
Investors which are not QIBs (excluding Non-U.S. Persons) shall be issued
in the form of permanent certificated Securities in registered form in
substantially the form set forth in Exhibit A (the "U.S. Physical
--------------
Securities"). Securities issued pursuant to Section 2.07 in exchange for
----------
interests in a U.S. Global Security or an Offshore Global Security shall be
in the form of U.S. Physical Securities or in the form of permanent
certificated Securities in registered form substantially in the form set
forth in Exhibit A (the "Offshore Physical Securities"), respectively.
----------------------------
The Offshore Physical Securities and U.S. Physical Securities are
sometimes collectively herein referred to as the "Physical Securities".
-------------------
U.S. Global Securities and Offshore Global Securities are sometimes
referred to as the "Global Securities".
-----------------
The definitive Securities shall be typed, printed, lithographed
or engraved or produced by any combination of these methods or may be
produced in any other manner permitted by the rules of any securities
exchange on which the Securities may be listed, all as determined by the
officers executing such Securities, as evidenced by their execution of such
Securities.
SECTION 2.02. Restrictive Legends. Unless and until a Security
-------------------
is exchanged for an Exchange Security or otherwise disposed of in
connection with an effective Registration Statement pursuant to the
Registration Rights Agreement, (i) each U.S. Global Security and each U.S.
Physical Security shall bear the legend, set forth below on the face
thereof and (ii) each Offshore Physical Security and the Offshore Global
Security shall bear the legend set forth below on the face thereof until at
least 41 days after the Closing Date and receipt by the Company and the
Trustee of a certificate substantially in the form of Exhibit B hereto.
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE
OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR
BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING
SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT
(A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT), (B) IT IS NOT A U.S. PERSON AND IS
ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH
REGULATION S UNDER THE SECURITIES ACT, OR (C) IT IS AN INSTITUTIONAL
"ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7)
OF REGULATION D UNDER THE SECURITIES ACT) (AN "INSTITUTIONAL
ACCREDITED INVESTOR"), (2) AGREES THAT IT WILL NOT, WITHIN THE TIME
PERIOD REFERRED TO IN RULE 144(k) UNDER THE SECURITIES ACT AS IN
EFFECT ON THE DATE OF THE TRANSFER OF THIS NOTE, RESELL OR OTHERWISE
TRANSFER THIS NOTE EXCEPT (A) TO THE COMPANY OR ANY SUBSIDIARY
THEREOF, (B) INSIDE THE UNITED STATES TO A QUALIFIED INSTITUTIONAL
BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT,
(C) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE
WITH RULE 904 UNDER THE SECURITIES ACT, (D) PURSUANT TO THE EXEMPTION
FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF
AVAILABLE), (E) INSIDE THE UNITED STATES TO AN INSTITUTIONAL
ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE
TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND
AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS NOTE (THE
FORM OF WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE) AND IF SUCH
TRANSFER IS IN RESPECT OF AN ACCRETED VALUE OF NOTES AT THE TIME OF
TRANSFER OF LESS THAN $250,000, AN OPINION OF COUNSEL ACCEPTABLE TO
THE COMPANY THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES
ACT OR (F) AFTER REGISTRATION UNDER THE SECURITIES ACT, AND (3) AGREES
THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A
NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH
ANY TRANSFER OF THIS NOTE WITHIN THE TIME PERIOD REFERRED TO ABOVE,
THE HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE REVERSE
HEREOF RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS
CERTIFICATE TO THE TRUSTEE. AS USED HEREIN, THE TERMS "OFFSHORE
TRANSACTION", "UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS
GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT. THE INDENTURE
CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY
TRANSFER OF THIS NOTE IN VIOLATION OF THE FOREGOING RESTRICTIONS.
Each Global Security, whether or not an Exchange Security, shall
also bear the following legend on the face thereof:
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH OTHER ENTITY AS
IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY OR SUCH OTHER REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A
SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF
PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS
MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTION 2.08
OF THE INDENTURE.
SECTION 2.03. Execution, Authentication and Denominations. The
-------------------------------------------
initial original issuance under this Indenture shall be an amount equal to
$176,000,000 aggregate principal amount at maturity, and, subject to
Article Four, the Company may from time to time issue additional
Securities, the aggregate principal amount of which additional Securities
that may be authenticated and delivered under this Indenture is unlimited.
The Securities shall be executed by an Officer of the Company
listed in clause (i) of the definition of Officer herein and attested by an
Officer of the Company listed in clause (i) or clause (ii) of the
definition of Officer herein. The signature of any of these Officers on
the Securities may be by facsimile or manual signature in the name and on
behalf of the Company.
If an Officer whose signature is on a Security no longer holds
that office at the time the Trustee or authenticating agent authenticates
the Security, the Security shall be valid nevertheless.
A Security shall not be valid until the Trustee or authenticating
agent manually signs the certificate of authentication on the Security.
The signature shall be conclusive evidence that the Security has been
authenticated under this Indenture.
Pursuant to and based upon a Company Order, the Trustee or an
authenticating agent shall authenticate for original issue Securities
registered in the name of the Depositary or the nominee of the Depositary
or other Person, as specified in the Company Order, and shall deliver such
Global Securities to the Depositary or pursuant to the Depositary's
instructions or to such other Person; provided that the Trustee shall be
entitled to receive an Officers' Certificate and an Opinion of Counsel of
the Company in connection with such authentication of Securities. The
Opinion of Counsel shall, if requested by the Trustee, be to the effect
that:
(a) the form and terms of such Securities have been established
by or pursuant to a Board Resolution or an indenture supplemental
hereto in conformity with the provisions of this Indenture;
(b) such supplemental indenture, if any, when executed and
delivered by the Company, the Guarantor and the Trustee, will
constitute a valid and binding obligation of the Company and the
Guarantor;
(c) such Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid
and binding obligations of the Company in accordance with their terms
and will be entitled to the benefits of this Indenture, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles; and
(d) the Company has been duly incorporated in, and is a validly
existing corporation in good standing under the laws of, the State of
Colorado.
Such Company Order shall specify the amount of Securities to be
authenticated and the date on which the original issue of Securities is to
be authenticated. The aggregate principal amount at maturity of Securities
outstanding at any time may not exceed the amount set forth above except
for Securities authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Securities pursuant to
Section 2.06, 2.09, 2.10 or 2.11.
The Trustee may appoint an authenticating agent to authenticate
Securities. An authenticating agent may authenticate Securities whenever
the Trustee may do so. Each reference in this Indenture to authentication
by the Trustee includes authentication by such authenticating agent. An
authenticating agent has the same rights as an Agent to deal with the
Company or an Affiliate of the Company.
The Securities shall be issuable only in registered form without
coupons and only in denominations of $1,000 in principal amount at maturity
and any integral multiple of $1,000 in excess thereof.
SECTION 2.04. Registrar and Paying Agent. The Company shall
--------------------------
maintain an office or agency where Securities may be presented for
registration of transfer or for exchange (the "Registrar"), an office or
---------
agency where Securities may be presented for payment (the "Paying Agent")
------------
and an office or agency where notices and demands to or upon the Company in
respect of the Securities and this Indenture may be served, which shall be
in the Borough of Manhattan, The City of New York. The Company shall cause
the Registrar to keep a register of the Securities and of their transfer
and exchange (the "Security Register"). The Company may have one or more
-----------------
co-Registrars and one or more additional Paying Agents.
The Company shall enter into an appropriate agency agreement with
any Agent not a party to this Indenture. The agreement shall implement the
provisions of this Indenture that relate to such Agent. The Company shall
give prompt written notice to the Trustee of the name and address of any
such Agent and any change in the address of such Agent. If the Company
fails to maintain a Registrar, Paying Agent and/or agent for service of
notices and demands, the Trustee shall act as such Registrar, Paying Agent
and/or agent for service of notices and demands for so long as such failure
shall continue. The Company may remove any Agent upon written notice to
such Agent and the Trustee; provided that no such removal shall become
effective until (i) the acceptance of an appointment by a successor Agent
to such Agent as evidenced by an appropriate agency agreement entered into
by the Company and such successor Agent and delivered to the Trustee or
(ii) notification to the Trustee that the Trustee shall serve as such Agent
until the appointment of a successor Agent in accordance with clause (i) of
this proviso. The Company, any Subsidiary of the Company, or any Affiliate
of any of them may act as Paying Agent, Registrar or co-Registrar, and/or
agent for service of notice and demands; provided, however, that neither
the Company, a Subsidiary of the Company nor an Affiliate of any of them
shall act as Paying Agent in connection with the defeasance of the
Securities or the discharge of this Indenture under Article Eight.
The Company initially appoints the Trustee as Registrar, Paying
Agent, authenticating agent and agent for service of notice and demands.
If, at any time, the Trustee is not the Registrar, the Registrar shall make
available to the Trustee on or before each Interest Payment Date and at
such other times as the Trustee may reasonably request, the names and
addresses of the Holders as they appear in the Security Register.
SECTION 2.05. Paying Agent to Hold Money in Trust. Not later
-----------------------------------
than 10:00 a.m. New York City time on each due date of the principal of,
premium, if any, and interest on any Securities, the Company shall deposit
with the Paying Agent money in immediately available funds sufficient to
pay such principal, premium, if any, and interest so becoming due. The
Company shall require each Paying Agent, if any, other than the Trustee to
agree in writing that such Paying Agent shall hold in trust for the benefit
of the Holders or the Trustee all money held by the Paying Agent for the
payment of principal of, premium, if any, and interest on the Securities
(whether such money has been paid to it by the Company or any other obligor
on the Securities), and that such Paying Agent shall promptly notify the
Trustee of any default by the Company (or any other obligor on the
Securities) in making any such payment. The Company at any time may
require a Paying Agent to pay all money held by it to the Trustee and
account for any funds disbursed, and the Trustee may at any time during the
continuance of any payment default, upon written request to a Paying Agent,
require such Paying Agent to pay all money held by it to the Trustee and to
account for any funds disbursed. Upon doing so, the Paying Agent shall
have no further liability for the money so paid over to the Trustee. If
the Company or any Subsidiary of the Company or any Affiliate of any of
them acts as Paying Agent, it will, on or before each due date of any
principal of, premium, if any, or interest on the Securities, segregate and
hold in a separate trust fund for the benefit of the Holders a sum of money
sufficient to pay such principal, premium, if any, or interest so becoming
due until such sum of money shall be paid to such Holders or otherwise
disposed of as provided in this Indenture, and will promptly notify the
Trustee of its action or failure to act as required by this Section 2.05.
SECTION 2.06. Transfer and Exchange. The Securities are
---------------------
issuable only in registered form. A Holder may transfer a Security by
written application to the Registrar stating the name of the proposed
transferee and otherwise complying with the terms of this Indenture. No
such transfer shall be effected until, and such transferee shall succeed to
the rights of a Holder only upon registration of the transfer by the
Registrar in the Security Register. Prior to the registration of any
transfer by a Holder as provided herein, the Company, the Trustee, and any
agent of the Company shall treat the person in whose name the Security is
registered as the owner thereof for all purposes whether or not the
Security shall be overdue, and neither the Company, the Trustee, nor any
such agent shall be affected by notice to the contrary. Furthermore, any
Holder of a Global Security shall, by acceptance of such Global Security,
agree that transfers of beneficial interests in such Global Security may be
effected only through a book-entry system maintained by the Depositary (or
its agent), and that ownership of a beneficial interest in the Security
shall be required to be reflected in a book entry. When Securities are
presented to the Registrar or a co-Registrar with a request to register the
transfer or to exchange them for an equal principal amount at maturity of
Securities of other authorized denominations (including on exchange of
Securities for Exchange Securities), the Registrar shall register the
transfer or make the exchange as requested if its requirements for such
transactions are met; provided that no exchanges of Securities for Exchange
Securities shall occur until a Registration Statement shall have been
declared effective by the Commission and that any Securities that are
exchanged for Exchange Securities shall be cancelled by the Trustee. To
permit registrations of transfers and exchanges in accordance with the
terms, conditions and restrictions hereof, the Company shall execute and
the Trustee shall authenticate Securities at the Registrar's request. No
service charge shall be made to any Holder for any registration of transfer
or exchange or redemption of the Securities, but the Company may require
payment of a sum sufficient to cover any transfer tax or similar
governmental charge payable in connection therewith (other than any such
transfer taxes or other similar governmental charge payable upon transfers,
exchanges or redemptions pursuant to Section 2.11, 3.08, 4.11, 4.12 or
9.04).
The Registrar shall not be required (i) to issue, register the
transfer of or exchange any Security during a period beginning at the
opening of business 15 days before the day of the mailing of a notice of
redemption of Securities selected for redemption under Section 3.03 or
Section 3.08 and ending at the close of business on the day of such
mailing, or (ii) to register the transfer of or exchange any Security so
selected for redemption in whole or in part, except the unredeemed portion
of any Security being redeemed in part.
SECTION 2.07. Book-Entry Provisions for Global Securities.
-------------------------------------------
(a) Each U.S. Global Security and Offshore Global Security initially
shall (i) be registered in the name of the Depositary for such Global
Securities or the nominee of such Depositary, (ii) be delivered to the
Trustee as custodian for such Depositary and (iii) bear legends as set
forth in Section 2.02.
Members of, or participants in, the Depositary ("Agent Members")
-------------
shall have no rights under this Indenture with respect to any Global
Security held on their behalf by the Depositary, or the Trustee as its
custodian, or under any Global Security, and the Depositary may be treated
by the Company, the Guarantor, the Trustee and any agent of the Company,
the Guarantor or the Trustee as the absolute owner of such Global Security
for all purposes whatsoever. Notwithstanding the foregoing, nothing herein
shall prevent the Company, the Guarantor, the Trustee or any agent of the
Company, the Guarantor or the Trustee, from giving effect to any written
certification, proxy or other authorization furnished by the Depositary or
impair, as between the Depositary and its Agent Members, the operation of
customary practices governing the exercise of the rights of a beneficial
owner of any Security.
(b) Transfers of a Global Security shall be limited to transfers
of such Global Security in whole, but not in part, to the Depositary, its
successors or their respective nominees. Interests of beneficial owners in
a Global Security may be transferred in accordance with the applicable
rules and procedures of the Depositary and the provisions of Section 2.08.
In addition, Offshore Physical Securities shall be transferred to all
beneficial owners in exchange for their beneficial interests in a U.S.
Global Securities or an Offshore Global Security, respectively, if (i) the
Depositary notifies the Company that it is unwilling or unable to continue
as Depositary for the U.S. Global Securities or the Offshore Global
Securities, as the case may be, and a successor depositary is not appointed
by the Company within 90 days of such notice or (ii) an Event of Default
has occurred and is continuing and the Registrar has received a request to
the foregoing effect from the Depositary.
(c) Any beneficial interest in one of the Global Securities that
is transferred to a person who takes delivery in the form of an interest in
the other Global Security will, upon transfer, cease to be an interest in
such Global Security and become an interest in the other Global Security
and, accordingly, will thereafter be subject to all transfer restrictions,
if any, and other procedures applicable to beneficial interests in such
other Global Security for as long as it remains such an interest.
(d) In connection with any transfer pursuant to paragraph (b) of
this Section of a portion of the beneficial interests in a U.S. Global
Security to beneficial owners who are required to hold U.S. Physical
Securities, the Registrar shall reflect on its books and records the date
and a decrease in the principal amount at maturity of such U.S. Global
Security in an amount equal to the principal amount at maturity of the
beneficial interest in such U.S. Global Security to be transferred, and the
Company shall execute, and the Trustee shall authenticate and deliver, one
or more U.S. Physical Securities of like tenor and amount.
(e) In connection with the transfer of the entire set of U.S.
Global Securities or Offshore Global Securities to beneficial owners
pursuant to paragraph (b) of this Section, the U.S. Global Securities or
Offshore Global Securities, as the case may be, shall be deemed to be
surrendered to the Trustee for cancellation, and the Company shall execute,
and the Trustee shall authenticate and deliver, to each beneficial owner
identified by the Depositary in exchange for its beneficial interest in the
U.S. Global Securities or Offshore Global Securities, as the case may be,
an equal aggregate principal amount at maturity of U.S. Physical Securities
or Offshore Physical Securities, as the case may be, of authorized
denominations.
(f) Any U.S. Physical Security delivered in exchange for an
interest in a U.S. Global Security pursuant to paragraph (b) or (d) of this
Section shall, except as otherwise provided by paragraph (f)(i)(x) and
paragraph (d) of Section 2.08, bear the legend regarding transfer
restrictions applicable to the U.S. Physical Security set forth in
Section 2.02.
(g) The registered holder of a Global Security may grant proxies
and otherwise authorize any person, including Agent Members and persons
that may hold interests through Agent Members, to take any action which a
Holder is entitled to take under this Indenture or the Securities.
(h) QIBs that are beneficial owners of interests in a Global
Security may receive Physical Securities (which shall bear the Private
Placement Legend if required by Section 2.02) in accordance with the
procedures of the Depositary. In connection with the execution,
authentication and delivery of such Physical Securities, the Registrar
shall reflect on its books and records a decrease in the principal amount
of the relevant Global Security equal to the principal amount of such
Physical Securities and the Company shall execute and the Trustee shall
authenticate and deliver one or more Physical Securities having an equal
aggregate principal amount.
SECTION 2.08. Special Transfer Provisions. Unless and until a
---------------------------
Security is exchanged for an Exchange Security in connection with an
effective Registration Statement pursuant to the Registration Rights
Agreement, the following provisions shall apply:
(a) Transfers to QIBs. The following provisions shall apply
-----------------
with respect to the registration of any proposed transfer of a U.S.
Physical Security or an interest in a U.S. Global Security to a QIB
(excluding Non-U.S. Persons):
(i) If the Security to be transferred consists of (x) U.S.
Physical Securities, the Registrar shall register the transfer if such
transfer is being made by a proposed transferor who has checked the
box provided for on the form of Security stating, or has otherwise
advised the Company and the Registrar in writing, that the sale has
been made in compliance with the provisions of Rule 144A to a
transferee who has signed the certification provided for on the form
of Security stating, or has otherwise advised the Company and the
Registrar in writing, that it is purchasing the Security 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 QIB within
the meaning of Rule 144A, 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 it 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 its foregoing
representations in order to claim the exemption from registration
provided by Rule 144A or (y) an interest in a U.S. Global Security,
the transfer of such interest may be effected only through the book
entry system maintained by the Depositary.
(ii) If the proposed transferor is an Agent Member, and the
Security to be transferred consists of U.S. Physical Securities, upon
receipt by the Registrar of the documents referred to in clause (i)
and instructions given in accordance with the Depositary's and the
Registrar's procedures, the Registrar shall reflect on its books and
records the date and an increase in the principal amount at maturity
of such U.S. Global Security in an amount equal to the principal
amount at maturity of the U.S. Physical Securities to be transferred,
and the Trustee shall cancel the Physical Security so transferred.
(b) Transfers of Interests in Offshore Global Securities or
--------------------------------------------------------
Offshore Physical Securities to U.S. Persons. The following provisions
--------------------------------------------
shall apply with respect to any transfer of interests in Offshore Global
Securities or Offshore Physical Securities to U.S. Persons:
(i) prior to the removal of the Private Placement Legend from
Offshore Global Securities or Offshore Physical Securities pursuant to
Section 2.02, the Registrar shall refuse to register such transfer;
and
(ii) after such removal, the Registrar shall register the
transfer of any such Security without requiring any additional
certification.
(c) Transfers to Non-U.S. Persons at Any Time. The following
-----------------------------------------
provisions shall apply with respect to any transfer of a Security to a Non-
U.S. Person:
(i) The Registrar shall register any proposed transfer to any
Non-U.S. Person if the Security to be transferred is a U.S. Physical
Security or an interest in a U.S. Global Security only upon receipt of
a certificate substantially in the form of Exhibit C from the proposed
transferor.
(ii) (a) If the proposed transferor is an Agent Member holding a
beneficial interest in a U.S. Global Security, upon receipt by the
Registrar of (x) the documents required by paragraph (i) and
(y) instructions in accordance with the Depositary's and the
Registrar's procedures, the Registrar shall reflect on its books and
records the date and a decrease in the principal amount at maturity of
such U.S. Global Security in an amount equal to the principal amount
at maturity of the beneficial interest in the U.S. Global Security to
be transferred, and (b) if the proposed transferee is an Agent Member,
upon receipt by the Registrar of instructions given in accordance with
the Depositary's and the Registrar's procedures, the Registrar shall
reflect on its books and records the date and an increase in the
principal amount at maturity of such Offshore Global Security in an
amount equal to the principal amount at maturity of the U.S. Physical
Securities or the U.S. Global Securities, as the case may be, to be
transferred, and the Trustee shall cancel the Physical Security, if
any, so transferred or decrease the amount of the U.S. Global
Securities.
(d) Private Placement Legend. Upon the transfer, exchange or
------------------------
replacement of Securities not bearing the Private Placement Legend, the
Registrar shall deliver Securities that do not bear the Private Placement
Legend. Upon the transfer, exchange or replacement of Securities bearing
the Private Placement Legend, the Registrar shall deliver only Securities
that bear the Private Placement Legend unless either (i) the Private
Placement Legend is no longer required by Section 2.02, (ii) there is
delivered to the Registrar an Opinion of Counsel reasonably satisfactory to
the Company and the Trustee to the effect that neither such legend nor the
related restrictions on transfer are required in order to maintain
compliance with the provisions of the Securities Act or (iii) the Private
Placement Legend is no longer required by Section 2.02.
(e) General. By its acceptance of any Security bearing the
-------
Private Placement Legend, each Holder of such a Security acknowledges the
restrictions on transfer of such Security set forth in this Indenture and
in the Private Placement Legend and agrees that it will transfer such
Security only as provided in this Indenture. The Registrar shall not
register a transfer of any Security unless such transfer complies with the
restrictions on transfer of such Security set forth in this Indenture. In
connection with any transfer of Securities to an Institutional Accredited
Investor, each Holder agrees by its acceptance of the Securities to furnish
the Registrar or the Company such certifications, legal opinions or other
information as either of them may reasonably require to confirm that such
transfer is being made pursuant to an exemption from, or a transaction not
subject to, the registration requirements of the Securities Act; provided
that the Registrar shall not be required to determine (but may rely on a
determination made by the Company with respect to) the sufficiency of any
such certifications, legal opinions or other information.
(f) Transfers to Non-QIB Institutional Accredited Investors.
-------------------------------------------------------
The following provisions shall apply with respect to the registration of
any proposed transfer of a Security to any Institutional Accredited
Investor which is not a QIB (excluding Non-U.S. Persons):
(i) The Registrar shall register the transfer of any Security,
whether or not such Security bears the Private Placement Legend, if
(x) the requested transfer is after the time period referred to in
Rule 144(k) under the Securities Act as in effect with respect to such
transfer or (y) the proposed transferee has delivered to the Registrar
(A) a certificate substantially in the form of Exhibit D hereto and
(B) if the aggregate Accreted Value of the Securities being
transferred is less than $250,000 at the time of such transfer, an
Opinion of Counsel acceptable to the Company that such transfer is in
compliance with the Securities Act.
(ii) If the proposed transferor is an Agent Member holding a
beneficial interest in a U.S. Global Security, upon receipt by the
Registrar of (x) the documents, if any, required by paragraph (i) and
(y) instructions given in accordance with the Depositary's and the
Registrar's procedures, the Registrar shall reflect on its books and
records the date and a decrease in the principal amount of such U.S.
Global Security in an amount equal to the principal amount of the
beneficial interest in the U.S. Global Security to be transferred, and
the Company shall execute, and the Trustee shall authenticate and
deliver, one or more U.S. Physical Securities of like tenor and
amount.
The Registrar shall retain copies of all letters, notices and
other written communications received pursuant to Section 2.07 or this
Section 2.08. The Company shall have the right to inspect and make copies
of all such letters, notices or other written communications at any
reasonable time upon the giving of reasonable written notice to the
Registrar.
SECTION 2.09. Replacement Securities. If a mutilated Security
----------------------
is surrendered to the Trustee or if the Holder claims that the Security has
been lost, destroyed or wrongfully taken, the Company shall issue and the
Trustee shall authenticate a replacement Security of like tenor and
principal amount and bearing a number not contemporaneously outstanding;
provided that the requirements of the second paragraph of Section 2.10 are
met. If required by the Trustee or the Company, an indemnity bond must be
furnished that is sufficient in the judgment of both the Trustee and the
Company to protect the Company, the Trustee or any Agent from any loss that
any of them may suffer if a Security is replaced. The Company may charge
such Holder for its expenses and the expenses of the Trustee in replacing a
Security. In case any such mutilated, lost, destroyed or wrongfully taken
Security has become or is about to become due and payable, the Company in
its discretion may pay such Security instead of issuing a new Security in
replacement thereof.
Every replacement Security is an additional obligation of the
Company and shall be entitled to the benefits of this Indenture.
SECTION 2.10. Outstanding Securities. Securities outstanding at
----------------------
any time are all Securities that have been authenticated by the Trustee
except for those cancelled by it, those delivered to it for cancellation
and those described in this Section 2.10 as not outstanding (the
"Outstanding Securities").
----------------------
If a Security is replaced pursuant to Section 2.09, it ceases to
be outstanding unless and until the Trustee and the Company receive proof
reasonably satisfactory to them that the replaced Security is held by a
bona fide purchaser.
If the Paying Agent (other than the Company or an Affiliate of
the Company) holds on the maturity date money sufficient to pay Securities
payable on that date, then on and after that date such Securities cease to
be outstanding and interest on them shall cease to accrue.
A Security does not cease to be outstanding because the Company
or one of its Affiliates holds such Security, provided, however, that, in
determining whether the Holders of the requisite principal amount at
maturity of the outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities
owned by the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor shall be disregarded and
deemed not to be outstanding, except that, in determining whether the
Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Securities which
the Trustee knows to be so owned shall be so disregarded. Securities so
owned which have been pledged in good faith may be regarded as outstanding
if the pledgee establishes to the satisfaction of the Trustee the pledgee's
right so to act with respect to such Securities and that the pledgee is not
the Company or any other obligor upon the Securities or any Affiliate of
the Company or of such other obligor.
SECTION 2.11. Temporary Securities. Until definitive Securities
--------------------
are ready for delivery, the Company may prepare and the Trustee shall
authenticate temporary Securities. Temporary Securities shall be
substantially in the form of definitive Securities but may have insertions,
substitutions, omissions and other variations determined to be appropriate
by the Officers executing the temporary Securities, as evidenced by their
execution of such temporary Securities. If temporary Securities are
issued, the Company will cause definitive Securities to be prepared without
unreasonable delay. After the preparation of definitive Securities, the
temporary Securities shall be exchangeable for definitive Securities upon
surrender of the temporary Securities at the office or agency of the
Company designated for such purpose pursuant to Section 4.02, without
charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount at
maturity of definitive Securities of authorized denominations. Until so
exchanged, the temporary Securities shall be entitled to the same benefits
under this Indenture as definitive Securities.
SECTION 2.12. Cancellation. The Company at any time may deliver
------------
to the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee for cancellation any Securities
previously authenticated hereunder which the Company has not issued and
sold. The Registrar and the Paying Agent shall forward to the Trustee any
Securities surrendered to them for transfer, exchange or payment. The
Trustee shall cancel all Securities surrendered for transfer, exchange,
payment or cancellation and shall destroy them in accordance with its
normal procedure. The Company shall not issue new Securities to replace
Securities it has paid in full or delivered to the Trustee for
cancellation.
SECTION 2.13. CUSIP Numbers. The Company in issuing the
-------------
Securities may use "CUSIP" and "CINS" numbers (if then generally in use),
and the Trustee shall use CUSIP numbers or CINS numbers, as the case may
be, in notices of redemption or exchange as a convenience to Holders;
provided that any such notice shall state that no representation is made as
to the correctness of such numbers either as printed on the Securities or
as contained in any notice of redemption or exchange and that reliance may
be placed only on the other identification numbers printed on the
Securities.
SECTION 2.14. Defaulted Interest. If the Company defaults in a
------------------
payment of interest on the Securities, it shall pay, or shall deposit with
the Paying Agent money in immediately available funds sufficient to pay the
defaulted interest, plus (to the extent lawful) interest on the defaulted
interest, to the Persons who are Holders on a subsequent special record
date. A special record date, as used in this Section 2.14 with respect to
the payment of any defaulted interest, shall mean the 15th day next
preceding the date fixed by the Company for the payment of defaulted
interest, whether or not such day is a Business Day. At least 15 days
before the subsequent special record date, the Company shall mail to each
Holder and to the Trustee a notice that states the subsequent special
record date, the payment date and the amount of defaulted interest to be
paid.
ARTICLE THREE
REDEMPTION
SECTION 3.01. Right of Redemption. (a) The Securities may be
-------------------
redeemed at the election of the Company, 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
---- -------------
2002 105.81250%
2003 102.90625
2004 and thereafter 100.00000
(b) 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 issued Securities, 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.
SECTION 3.02. Notices to Trustee. If the Company elects to
------------------
redeem Securities pursuant to Section 3.01, it shall notify the Trustee in
writing of the Redemption Date and the principal amount at maturity of
Securities to be redeemed.
The Company shall give each notice provided for in this Section
3.02 in an Officers' Certificate at least 60 days before the Redemption
Date (unless a shorter period shall be satisfactory to the Trustee).
SECTION 3.03. Selection of Securities to Be Redeemed. If less
--------------------------------------
than all of the Securities are to be redeemed at any time, the Trustee
shall select the Securities to be redeemed in compliance with the
requirements, as certified to it by the Company, of the principal national
securities exchange, if any, on which the Securities are listed or, if the
Securities are not listed on a national securities exchange, on a pro rata
basis or by lot; provided that no Securities of $1,000 in principal amount
at maturity or less shall be redeemed in part.
The Trustee shall make the selection from the Securities
outstanding and not previously called for redemption. Securities in
denominations of $1,000 in principal amount at maturity may only be
redeemed in whole. The Trustee may select for redemption portions (equal
to $1,000 in principal amount at maturity or any integral multiple thereof)
of Securities that have denominations larger than $1,000 in principal
amount at maturity. Provisions of this Indenture that apply to Securities
called for redemption also apply to portions of Securities called for
redemption. The Trustee shall notify the Company and the Registrar
promptly in writing of the Securities or portions of Securities to be
called for redemption.
SECTION 3.04. Notice of Redemption. With respect to any
--------------------
redemption of Securities pursuant to Section 3.01, at least 30 days but not
more than 60 days before a Redemption Date, the Company shall mail a notice
of redemption by first class mail to each Holder whose Securities are to be
redeemed.
The notice shall identify the Securities to be redeemed and shall
state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the name and address of the Paying Agent;
(iv) that Securities called for redemption must be surrendered to
the Paying Agent in order to collect the Redemption Price;
(v) that, unless the Company defaults in making the redemption
payment, interest on Securities called for redemption ceases to accrue
on and after the Redemption Date and the only remaining right of the
Holders is to receive payment of the Redemption Price plus accrued
interest to the Redemption Date upon surrender of the Securities to
the Paying Agent;
(vi) that, if any Security is being redeemed in part, the portion
of the principal amount at maturity (equal to $1,000 in principal
amount at maturity or any integral multiple thereof) of such Security
to be redeemed and that, on and after the Redemption Date, upon
surrender of such Security, a new Security or Securities in principal
amount at maturity equal to the unredeemed portion thereof will be
reissued; and
(vii) that, if any Security contains a CUSIP number as
provided in Section 2.13, no representation is being made as to the
correctness of the CUSIP number either as printed on the Securities or
as contained in the notice of redemption and that reliance may be
placed only on the other identification numbers printed on the
Securities.
At the Company's request (which request may be revoked by the
Company at any time prior to the time at which the Trustee shall have given
such notice to the Holders), made in writing to the Trustee at least
60 days (or such shorter period as shall be satisfactory to the Trustee)
before a Redemption Date, the Trustee shall give the notice of redemption
in the name and at the expense of the Company. If, however, the Company
gives such notice to the Holders, the Company shall concurrently deliver to
the Trustee an Officers' Certificate stating that such notice has been
given.
SECTION 3.05. Effect of Notice of Redemption. Once notice of
------------------------------
redemption is mailed, Securities called for redemption become due and
payable on the Redemption Date and at the Redemption Price. Upon surrender
of any Securities to the Paying Agent, such Securities shall be paid at the
Redemption Price, plus accrued interest, if any, to the Redemption Date.
Notice of redemption shall be deemed to be given when mailed,
whether or not the Holder receives the notice. In any event, failure to
give such notice, or any defect therein, shall not affect the validity of
the proceedings for the redemption of Securities held by Holders to whom
such notice was properly given.
SECTION 3.06. Deposit of Redemption Price. On or prior to any
---------------------------
Redemption Date, the Company shall deposit with the Paying Agent (or, if
the Company is acting as its own Paying Agent, shall segregate and hold in
trust as provided in Section 2.05) money sufficient to pay the Redemption
Price of and accrued interest on all Securities to be redeemed on that date
other than Securities or portions thereof called for redemption on that
date that have been delivered by the Company to the Trustee for
cancellation.
SECTION 3.07. Payment of Securities Called for Redemption. If
-------------------------------------------
notice of redemption has been given in the manner provided above, the
Securities or portion of Securities specified in such notice to be redeemed
shall become due and payable on the Redemption Date at the Redemption Price
stated therein, together with accrued interest to such Redemption Date, and
on and after such date (unless the Company shall default in the payment of
such Securities at the Redemption Price and accrued interest to the
Redemption Date, in which case the principal, until paid, shall bear
interest from the Redemption Date at the rate prescribed in the
Securities), such Securities shall cease to accrue interest. Upon
surrender of any Security for redemption in accordance with a notice of
redemption, such Security shall be paid and redeemed by the Company at the
Redemption Price, together with accrued interest, if any, to the Redemption
Date; provided that installments of interest whose Stated Maturity is on or
prior to the Redemption Date shall be payable to the Holders registered as
such at the close of business on the relevant Regular Record Date.
SECTION 3.08. Securities Redeemed in Part. Upon surrender of
---------------------------
any Security that is redeemed in part, the Company shall execute and the
Trustee shall authenticate and deliver to the Holder a new Security equal
in principal amount at maturity to the unredeemed portion of such
surrendered Security.
ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Securities. The Company shall pay the
---------------------
principal of, premium, if any, and interest on the Securities on the dates
and in the manner provided in the Securities and this Indenture. An
installment of principal, premium, if any, or interest shall be considered
paid on the date due if the Trustee or Paying Agent (other than the
Company, a Subsidiary of the Company, or any Affiliate of any of them)
holds on that date money designated for and sufficient to pay the
installment. If the Company or any Subsidiary of the Company or any
Affiliate of any of them, acts as Paying Agent, an installment of
principal, premium, if any, or interest shall be considered paid on the due
date if the entity acting as Paying Agent complies with the last sentence
of Section 2.05. As provided in Section 6.09, upon any bankruptcy or
reorganization procedure relative to the Company, the Trustee shall serve
as the Paying Agent and conversion agent, if any, for the Securities.
The Company shall pay interest on overdue principal, premium, if
any, and interest on overdue installments of interest, to the extent
lawful, at the rate per annum specified in the Securities.
SECTION 4.02. Maintenance of Office or Agency. The Company will
-------------------------------
maintain in the Borough of Manhattan, the City of New York an office or
agency where Securities may be surrendered for registration of transfer or
exchange or for presentation for payment and where notices and demands to
or upon the Company in respect of the Securities and this Indenture may be
served. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at
any time the Company shall fail to maintain any such required office or
agency or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
address of the Trustee set forth in Section 11.02.
The Company may also from time to time designate one or more
other offices or agencies where the Securities may be presented or
surrendered for any or all such purposes and may from time to time rescind
such designations; provided that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or
agency in the Borough of Manhattan, the City of New York for such purposes.
The Company will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such
other office or agency.
The Company hereby initially designates the Corporate Trust
Office of the Trustee, located in the Borough of Manhattan, the City of New
York, as such office of the Company in accordance with Section 2.04.
SECTION 4.03. Limitation on Indebtedness. (a) The Guarantor
--------------------------
will not, and will not permit any of its Restricted Subsidiaries to, Incur
any Indebtedness (other than the Securities, the Guarantor's Guarantee
thereof and Indebtedness existing on the Closing Date); provided that the
Guarantor and the Company may Incur Indebtedness if, after giving effect to
the Incurrence of such Indebtedness and the receipt and application of the
proceeds therefrom, the Indebtedness to EBITDA Ratio would be greater than
zero and less than 5:1.
Notwithstanding the foregoing, the Guarantor and any Restricted
Subsidiary (except as specified below) may Incur each and all of the
following:
(i) Indebtedness of the Guarantor or the Company outstanding at
any time, which Indebtedness generates gross proceeds to the Guarantor
or the Company of up to $400 million, less the gross proceeds of
Indebtedness permanently repaid as provided under Section 4.11;
provided that (A) Indebtedness generating gross proceeds to the
Guarantor or the Company of up to $150 million may be Incurred under
this clause (i) with no additional requirements and (B) prior to, or
contemporaneously with, the Incurrence of Indebtedness generating all
or any part of the remaining $250 million of gross proceeds referred
to under this clause (i), the Guarantor or the Company shall have
issued or shall issue preferred stock (which has a final stated
redemption date later than the Stated Maturity of the 13 1/2% Notes)
generating an amount of gross proceeds equal to or greater than the
amount of Indebtedness so Incurred and (x) with respect to preferred
stock issued on the same date as Indebtedness Incurred under this
clause (a)(i)(B), having a dividend rate of no more than 2.75
percentage points higher than the interest rate on the Indebtedness so
Incurred, and (y) with respect to preferred stock issued at any other
time which will be applied to satisfy the criteria under this clause
(a)(i)(B), having a secondary market yield, on the same date as the
Indebtedness so Incurred, which a nationally recognized investment
banking firm certifies to the Trustee is no more than 2.75 percentage
points higher than the interest rate on the Indebtedness that is being
Incurred pursuant to this clause (a)(i)(B);
(ii) Indebtedness to the Guarantor or any of its Wholly Owned
Restricted Subsidiaries; provided that any subsequent issuance or
transfer of any Capital Stock which results in any such Wholly Owned
Restricted Subsidiary ceasing to be a Wholly Owned Restricted
Subsidiary or any subsequent transfer of such Indebtedness (other than
to the Guarantor or another Wholly Owned Restricted Subsidiary) shall
be deemed, in each case, to constitute an Incurrence of such
Indebtedness not permitted by this clause (ii);
(iii) Indebtedness issued in exchange for, or the net
proceeds of which are used to refinance or refund, then outstanding
Indebtedness, other than Indebtedness Incurred under clause (i), (ii),
(v), (vi), (viii), (ix), (xi) or (xii) of this paragraph, and any
refinancings thereof in an amount not to exceed the amount so
refinanced or refunded (plus premiums, accrued interest, fees and
expenses); provided that Indebtedness the proceeds of which are used
to refinance or refund the Securities or Indebtedness that is pari
passu with, or subordinated in right of payment to, the Securities or
the Security Guarantee shall only be permitted under this clause (iii)
if (A) in case the Securities are refinanced in part or the
Indebtedness to be refinanced is pari passu with the Securities or the
Security Guarantee, as the case may be, such new Indebtedness, by its
terms or by the terms of any agreement or instrument pursuant to which
such new Indebtedness is outstanding, is expressly made pari passu
with, or subordinate in right of payment to, the remaining Securities
or the Security Guarantee, as the case may be, (B) in case the
Indebtedness to be refinanced is subordinated in right of payment to
the Securities or the Security Guarantee, as the case may be, 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 Securities or the Security Guarantee, as the case may be, at
least to the extent that the Indebtedness to be refinanced is
subordinated to the Securities or the Security Guarantee, as the case
may be 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 Guarantor or the Company be refinanced by means of any
Indebtedness of any Restricted Subsidiary of the Guarantor or the
Company, as the case may be, pursuant to this clause (iii);
(iv) Indebtedness (A) in respect of performance, surety or appeal
bonds provided in the ordinary course of business, (B) under Currency
Agreements and Interest Rate Agreements; provided that such agreements
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 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 of the Company for the
purpose of financing such acquisition), in a principal amount at
maturity not to exceed the gross proceeds actually received by the
Company or any Restricted Subsidiary in connection with such
disposition;
(v) Indebtedness of the Guarantor or, to the extent the proceeds
referred to below are contributed to the Company, the Company not to
exceed, at any one time outstanding, twice the amount of Net Cash
Proceeds received by the Guarantor after the Closing Date from the
issuance and sale of its Capital Stock (other than Redeemable Stock);
provided that such Indebtedness does not mature prior to the Stated
Maturity of the Securities and has an Average Life longer than the
Securities;
(vi) Strategic Investor Subordinated Indebtedness;
(vii) Indebtedness of the Guarantor or the Company, to the
extent the proceeds thereof are immediately used after the Incurrence
thereof to purchase Securities, 13 1/2% Notes and/or 12 1/2% Notes
tendered in an Offer to Purchase or an offer to purchase, as the case
may be, made as a result of a Change of Control or a change of
control, as the case may be;
(viii) Indebtedness of any Restricted Subsidiary of the
Guarantor Incurred pursuant to any credit agreement (including
equipment leasing or financing agreements) of such Restricted
Subsidiary in effect on August 8, 1995 (or any agreement refinancing
Indebtedness under such credit agreement), up to the amount of the
commitment under such credit agreement on August 8, 1995;
(ix) Indebtedness of the Guarantor or the Company, in an amount
not to exceed $100 million at any one time outstanding, consisting of
Capitalized Lease Obligations with respect to assets that are used or
useful in the telecommunications business of the Guarantor or its
Restricted Subsidiaries;
(x) Indebtedness Incurred to defease the Securities;
(xi) Indebtedness of any Person that becomes a Restricted
Subsidiary of the Guarantor after March 31, 1996, which Indebtedness
exists or for which there is a commitment to lend at the time such
Person becomes a Restricted Subsidiary and subsequent Incurrences
thereof ("Acquired Indebtedness"), in an accreted amount not to exceed
---------------------
$50 million at any one time outstanding in the aggregate for all such
Restricted Subsidiaries; provided that such Acquired Indebtedness does
not exceed 65% of the consideration (calculated by including the
Acquired Indebtedness as a part of such consideration) for the
acquisition of such Person;
(xii) Indebtedness of the Guarantor or the Company, in an
amount not to exceed $30 million at any one time outstanding,
consisting of letters of credit and similar arrangements used to
support obligations of the Guarantor or any of its Restricted
Subsidiaries with respect to the acquisition of (by purchase, lease or
otherwise), construction of, or improvements on, assets that will be
used or useful in the telecommunications business of the Guarantor or
its Restricted Subsidiaries; and
(xiii) Indebtedness Incurred to finance the cost (including
the cost of design, development, construction, installation or
integration) of assets, equipment or inventory used or useful in the
telecommunications business of the Guarantor or any of its Restricted
Subsidiaries that is acquired by the Guarantor or any of its
Restricted Subsidiaries after the Closing Date.
(b) For purposes of determining any particular amount of
Indebtedness under this Section 4.03, (1) Indebtedness of any Restricted
Subsidiary of the Guarantor Incurred on or prior to the Closing Date
pursuant to any credit agreement (including equipment leasing or financing
agreements) of such Restricted Subsidiary in effect on the Closing Date
shall be treated as Incurred pursuant to Section 4.03(a)(viii), (2) any
Liens granted pursuant to the equal and ratable provisions referred to in
the first paragraph of Section 4.09 shall not be treated as Indebtedness
and (3) Guarantees, Liens or obligations with respect to letters of credit
supporting Indebtedness otherwise included in the determination of such
particular amount shall not be included. For purposes of determining
compliance with this Section 4.03, in the event that an item of
Indebtedness meets the criteria of more than one of the types of
Indebtedness described in clauses (i) through (xiii) of Section 4.03(a),
the Company, in its sole discretion, shall classify such item of
Indebtedness and only be required to include the amount and type of such
Indebtedness in one of such clauses.
Notwithstanding any other provision of this Section 4.03, (i) the
maximum amount of Indebtedness that the Guarantor or any Restricted
Subsidiary may Incur pursuant to this Section 4.03 shall not be deemed to
be exceeded due solely to fluctuations in the exchange rates of currencies
and (ii) the Guarantor and the Company may not Incur any Indebtedness that
is expressly subordinated to any other Indebtedness of the Guarantor or the
Company, as the case may be, unless such Indebtedness, by its terms or the
terms of any agreement or instrument pursuant to which such Indebtedness is
outstanding, is also expressly made subordinate to the Security Guarantee
or the Securities, as the case may be, at least to the extent that such
Indebtedness is subordinated to such other Indebtedness; provided that the
limitation in this clause (ii) shall not apply to distinctions between
categories of unsubordinated Indebtedness which exist by reason of (a) any
liens or other encumbrances arising or created in respect of some but not
all unsubordinated Indebtedness, (b) intercreditor agreements between
holders of different classes of unsubordinated Indebtedness or (c)
different maturities or prepayment provisions.
SECTION 4.04. Limitation on Restricted Payments. So long as any
---------------------------------
of the Securities are outstanding, the Guarantor will not, and will not
permit any Restricted Subsidiary to, directly or indirectly, (i) declare or
pay any dividend or make any distribution on its Capital Stock held by
Persons other than the Guarantor or any of its Restricted Subsidiaries
(other than dividends or distributions payable solely in shares of its or
such Restricted Subsidiary's Capital Stock (other than Redeemable Stock) of
the same class held by such holders or in options, warrants or other rights
to acquire such shares of Capital Stock and other than pro rata dividends
or distributions on Common Stock of Restricted Subsidiaries), (ii)
purchase, redeem, retire or otherwise acquire for value any shares of
Capital Stock of the Guarantor or any Restricted Subsidiary (including
options, warrants or other rights to acquire such shares of Capital Stock)
held by Persons other than the Guarantor or any of its Wholly Owned
Restricted Subsidiaries (except for Capital Stock of ChoiceCom, MTN,
StarCom, Ohio LINX, FOTI and Zycom to the extent the consideration therefor
consists solely of Common Stock (other than Redeemable Stock) of the
Guarantor transferred in compliance with the Securities Act), (iii) make
any voluntary or optional principal payment, or voluntary or optional
redemption, repurchase, defeasance or other acquisition or retirement for
value, of Indebtedness of the Company or the Guarantor that is subordinated
in right of payment to the Securities or the Security Guarantee, as the
case may be, or (iv) make any Investment, other than a Permitted
Investment, in any Person (such payments or any other actions described in
clauses (i) through (iv) being collectively "Restricted Payments") if, at
-------------------
the time of, and after giving effect to, the proposed Restricted Payment:
(A) a Default or Event of Default shall have occurred and be continuing,
(B) the Guarantor could not Incur at least $1.00 of Indebtedness under the
first paragraph of Section 4.03(a) or (C) the aggregate amount expended for
all Restricted Payments (the amount so expended, if other than in cash, to
be determined in good faith by the Board of Directors, whose determination
shall be conclusive and evidenced by a Board Resolution) after the date of
this Indenture shall exceed the sum of (1) 50% of the aggregate amount of
the Adjusted Consolidated Net Income (or, if the Adjusted Consolidated Net
Income is a loss, minus 100% of such amount) (determined by excluding
income resulting from transfers of assets by the Guarantor or a Restricted
Subsidiary to an Unrestricted Subsidiary) accrued on a cumulative basis
during the period (taken as one accounting period) beginning on the first
day of the fiscal quarter immediately following the Closing Date and ending
on the last day of the last fiscal quarter preceding the Transaction Date
for which reports have been filed pursuant to Section 4.18 plus (2) the
aggregate Net Cash Proceeds received by the Guarantor after the Closing
Date from the issuance and sale permitted by this Indenture of its Capital
Stock (other than Redeemable Stock) to a Person who is not a Subsidiary of
the Guarantor, or from the issuance to a Person who is not a Subsidiary of
the Guarantor of any options, warrants or other rights to acquire Capital
Stock of the Guarantor (in each case, exclusive of any Redeemable Stock or
any options, warrants or other rights that are redeemable at the option of
the holder, or are required to be redeemed, prior to the Stated Maturity of
the Securities) plus (3) an amount equal to the net reduction in
Investments (other than reductions in Permitted Investments) in any Person
resulting from payments of interest on Indebtedness, dividends, repayments
of loans or advances, or other transfers of assets, in each case to the
Guarantor or any Restricted Subsidiary (except to the extent any such
payment is included in the calculation of Adjusted Consolidated Net
Income), or from redesignations of Unrestricted Subsidiaries as Restricted
Subsidiaries (valued in each case as provided in the definition of
"Investments"), not to exceed the amount of Investments previously made by
the Guarantor and its Restricted Subsidiaries in such Person.
The foregoing provision shall not be violated by reason of:
(i) the payment of any dividend within 60 days after the date of
declaration thereof if, at said date of declaration, such payment
would comply with the foregoing paragraph;
(ii) the redemption, repurchase, defeasance or other acquisition
or retirement for value of Indebtedness that is subordinated in right
of payment to the Securities or the Security Guarantee, as the case
may be, including premium, if any, and accrued and unpaid interest,
with the proceeds of, or in exchange for, Indebtedness Incurred under
clause (iii) of the second paragraph of Section 4.03(a);
(iii) the repurchase, redemption or other acquisition of
Capital Stock of the Guarantor or the Company (or options, warrants or
other rights to acquire such Capital Stock) and with respect to any
preferred stock of the Company, the payment of accrued dividends
thereon in exchange for, or out of the proceeds of a substantially
concurrent issuance or sale of, shares of Capital Stock (other than
Redeemable Stock) of the Guarantor or the Company; provided that the
redemption of any preferred stock and the payment of accrued dividends
thereon pursuant to any mandatory redemption feature thereof and any
redemption of any other Capital Stock and with respect to any
preferred stock, the payment of accrued dividends thereon (or options,
warrants or other rights to acquire such Capital Stock) shall be
deemed to be "substantially concurrent" with such issuance and sale if
the required notice with respect to such redemption is irrevocably
given by a date which is no later than five Business Days after
receipt of the proceeds of such issuance and sale and such redemption
and payment is consummated within the period provided for in the
documents providing for the redemption of such preferred stock or the
documents governing the redemption of such other Capital Stock, as the
case may be;
(iv) the acquisition of Indebtedness of the Company or the
Guarantor which is subordinated in right of payment to the Securities
or the Security Guarantee, as the case may be, in exchange for, or out
of the proceeds of, a substantially concurrent offering of, shares of
the Capital Stock of the Guarantor (other than Redeemable Stock);
(v) payments or distributions, in the nature of satisfaction of
dissenters' rights, pursuant to or in connection with a consolidation,
merger or transfer of assets that complies with the provisions of this
Indenture applicable to mergers, consolidations and transfers of all
or substantially all of the property and assets of the Company or the
Guarantor;
(vi) Investments, not to exceed $10 million in the aggregate,
each evidenced by a senior promissory note payable to the Company that
provides that it will become due and payable prior to (or, in the case
of acceleration, concurrently with) any required repayment (including
pursuant to an Offer to Purchase in connection with a Change of
Control) of the Securities;
(vii) Investments, not to exceed $5 million in the aggregate,
that meet the requirements of clause (vi) of this Section 4.04;
provided that the Board of Directors of the Guarantor shall have
determined, in good faith, that each such Investment under this clause
(vii) will enable the Guarantor, the Company or one of their
Restricted Subsidiaries to obtain additional business that it might
not be able to obtain without the making of such Investment;
(viii) with respect to preferred stock permitted to be issued
and sold under Section 4.06 of this Indenture, the payment (A) of
dividends on such preferred stock in additional shares of preferred
stock and (B) of cash dividends on such preferred stock and accrued
interest on unpaid dividends, in each case after May 1, 2001;
(ix) the repurchase, in the event of a Change of Control, of
preferred stock of the Company or the Guarantor and Indebtedness of
the Company or the Guarantor into which such preferred stock has been
exchanged; provided that prior to repurchasing such preferred stock or
Indebtedness, the Company or the Guarantor, as the case may be, shall
have made an offer (the "Change of Control Offer") to repurchase the
-----------------------
Securities in accordance with the terms of this Indenture (and an
offer to repurchase other Indebtedness, if required by the terms
thereof, in accordance with the indenture or other document governing
such other Indebtedness) and shall have accepted and paid for any
Securities (and other Indebtedness) properly tendered in connection
with such Change of Control Offer for the Securities or change of
control offer for such other Indebtedness; and
(x) the issuance of Indebtedness permitted to be issued under
this Indenture in exchange for preferred stock; provided that the
Incurrence of such Indebtedness complies with Section 4.03;
provided that, except in the case of clauses (i) and (iii), no Default or
Event of Default shall have occurred and be continuing or occur as a
consequence of the actions or payments set forth therein.
Each Restricted Payment permitted pursuant to the preceding
paragraph (other than the Restricted Payment referred to in clauses (ii),
(viii)(A) and (x) thereof), and the Net Cash Proceeds from any issuance of
Capital Stock referred to in clause (iii) or (iv) shall be included in
calculating whether the conditions of clause (C) of the first paragraph of
this Section 4.04 have been met with respect to any subsequent Restricted
Payments. Notwithstanding the foregoing, in the event the proceeds of an
issuance of Capital Stock of the Guarantor are used for the redemption,
repurchase or other acquisition of the Securities, or Indebtedness that is
pari passu with the Securities, then the Net Cash Proceeds of such issuance
shall be included in clause (C) of the first paragraph of this Section 4.04
only to the extent such proceeds are not used for such redemption,
repurchase or other acquisition of such Indebtedness.
SECTION 4.05. Limitation on Dividend and Other Payment
-----------------------------------------
Restrictions Affecting Restricted Subsidiaries. So long as any Securities
----------------------------------------------
are outstanding, the Guarantor will not, and will not permit any Restricted
Subsidiary to, create or otherwise cause or suffer to exist or become
effective any consensual encumbrance or restriction of any kind on the
ability of any Restricted Subsidiary to (i) pay dividends or make any other
distributions permitted by applicable law on any Capital Stock of such
Restricted Subsidiary owned by the Guarantor or any other Restricted
Subsidiary, (ii) pay any Indebtedness owed to the Guarantor or any other
Restricted Subsidiary, (iii) make loans or advances to the Guarantor or any
other Restricted Subsidiary or (iv) transfer any of its property or assets
to the Guarantor or any other Restricted Subsidiary.
The foregoing provisions shall not restrict any encumbrances or
restrictions:
(i) existing on the Closing Date in this Indenture or any other
agreement in effect on the Closing Date, and any extensions,
refinancings, renewals or replacements of such agreements; provided
that the encumbrances and restrictions in any such extensions,
refinancings, renewals or replacements are no less favorable in any
material respect to the Holders than those encumbrances or
restrictions that are then in effect and that are being extended,
refinanced, renewed or replaced;
(ii) existing under or by reason of applicable law;
(iii) existing with respect to any Person or the property or
assets of such Person acquired by the Guarantor or any Restricted
Subsidiary, existing at the time of such acquisition and not incurred
in contemplation thereof, which encumbrances or restrictions are not
applicable to any Person or the property or assets of any Person other
than such Person or the property or assets of such Person so acquired;
(iv) in the case of clause (iv) of the first paragraph of this
Section 4.05, (A) that restrict in a customary manner the subletting,
assignment or transfer of any property or asset that is a lease,
license, conveyance or contract or similar property or asset, (B)
existing by virtue of any transfer of, agreement to transfer, option
or right with respect to, or Lien on, any property or assets of the
Guarantor or any Restricted Subsidiary not otherwise prohibited by
this Indenture or (C) arising or agreed to in the ordinary course of
business, not relating to any Indebtedness, and that do not,
individually or in the aggregate, detract from the value of property
or assets of the Guarantor or any Restricted Subsidiary in any manner
material to the Guarantor or any Restricted Subsidiary;
(v) with respect to a Restricted Subsidiary and imposed pursuant
to an agreement that has been entered into for the sale or disposition
of all or substantially all of the Capital Stock of, or property and
assets of, such Restricted Subsidiary; or
(vi) imposed pursuant to preferred stock of the Company issued
under clause (vi) of Section 4.06, or exchange debentures or exchange
notes of the Company issued in exchange therefor; provided that
(A) such restrictions may include a prohibition (x) on payments on
Capital Stock upon liquidation, winding-up and dissolution of the
Company and (y) on the payment of dividends on and the making of any
distribution on, or the purchase, redemption, retirement or other
acquisition for value of Capital Stock of the Company if dividends or
other amounts on such preferred stock are unpaid and (B) any
restrictions imposed pursuant to preferred stock of the Company other
than pursuant to clause (A) shall be no more restrictive than the
restrictions contained in this Indenture (assuming that references to
the Guarantor in this Indenture were replaced with references to the
Company).
Nothing contained in this Section 4.05 shall prevent the
Guarantor or any Restricted Subsidiary from (1) creating, incurring,
assuming or suffering to exist any Liens otherwise permitted in Section
4.09 or (2) restricting the sale or other disposition of property or assets
of the Guarantor or any of its Restricted Subsidiaries that secure
Indebtedness of the Guarantor or any of its Restricted Subsidiaries.
SECTION 4.06. Limitation on the Issuances and Sale of Capital
-----------------------------------------------
Stock of Restricted Subsidiaries. The Guarantor will not sell, and will
--------------------------------
not permit any Restricted Subsidiary, directly or indirectly, to issue or
sell, any shares of Capital Stock of a Restricted Subsidiary (including
options, warrants or other rights to purchase shares of such Capital Stock)
except (i) to the Guarantor or a Wholly Owned Restricted Subsidiary; (ii)
issuances or sales to foreign nationals of shares of Capital Stock of
foreign Restricted Subsidiaries, to the extent required by applicable law;
(iii) if, immediately after giving effect to such issuance or sale, such
Restricted Subsidiary would no longer constitute a Restricted Subsidiary;
(iv) with respect to Common Stock of ChoiceCom, MTN, StarCom and Zycom;
provided that the proceeds of any such sale under clause (iv) shall be
applied in accordance with clause (A) or (B) of the first paragraph of
Section 4.11; (v) with respect to Common Stock of FOTI; provided that FOTI
shall not retain any net proceeds from such sales or issuances in excess of
$10 million in the aggregate and any net proceeds in excess of such $10
million shall be received by, or paid promptly by FOTI to, the Guarantor,
the Company or any Wholly Owned Restricted Subsidiary of the Guarantor; and
(vi) with respect to (A) preferred stock of the Company having an initial
liquidation preference of up to $250 million and (B) any preferred stock of
the Company issued as dividends on such preferred stock; provided that such
preferred stock does not require the payment of cash dividends prior to May
1, 2001.
SECTION 4.07. Limitation on Issuances of Guarantees by
-----------------------------------------
Restricted Subsidiaries. The Guarantor will not permit any Restricted
-----------------------
Subsidiary, directly or indirectly, to Guarantee any Indebtedness of the
Company or any Indebtedness of the Guarantor ("Guaranteed Indebtedness"),
-----------------------
unless (i) such Restricted Subsidiary simultaneously executes and delivers
a supplemental indenture to this Indenture providing for a Guarantee (a
"Subsidiary Guarantee") of payment of the Securities by such Restricted
--------------------
Subsidiary and (ii) such Restricted Subsidiary waives and will not in any
manner whatsoever claim or take the benefit or advantage of, any rights of
reimbursement, indemnity or subrogation or any other rights against the
Guarantor, the Company or any other Restricted Subsidiary as a result of
any payment by such Restricted Subsidiary under its Subsidiary Guarantee;
provided that this paragraph shall not be applicable to any Guarantee of
any Restricted Subsidiary that (x) existed at the time such Person became a
Restricted Subsidiary and (y) was not Incurred in connection with, or in
contemplation of, such Person becoming a Restricted Subsidiary. If the
Guaranteed Indebtedness is (A) pari passu with the Securities or the
Security Guarantee, then the Guarantee of such Guaranteed Indebtedness
shall be pari passu with, or subordinated to, the Subsidiary Guarantee or
(B) subordinated to the Securities or the Security Guarantee, then the
Guarantee of such Guaranteed Indebtedness shall be subordinated to the
Subsidiary Guarantee at least to the extent that the Guaranteed
Indebtedness is subordinated to the Securities or the Security Guarantee,
as the case may be.
Notwithstanding the foregoing, any Subsidiary Guarantee by a
Restricted Subsidiary shall provide by its terms that it shall be
automatically and unconditionally released and discharged upon (i) any
sale, exchange or transfer, to any Person not an Affiliate of the Guarantor
of all of the Company's and each Restricted Subsidiary's Capital Stock in,
or all or substantially all the assets of, such Restricted Subsidiary
(which sale, exchange or transfer is not prohibited by this Indenture) or
(ii) the release or discharge of the Guarantee which resulted in the
creation of such Subsidiary Guarantee, except a discharge or release by or
as a result of payment under such Guarantee.
SECTION 4.08. Limitation on Transactions with Shareholders and
-------------------------------------------------
Affiliates. The Guarantor will not, and will not permit any Restricted
----------
Subsidiary to, directly or indirectly, enter into, renew or extend any
transaction (including, without limitation, the purchase, sale, lease or
exchange of property or assets, or the rendering of any service) with any
holder (or any Affiliate of such holder) of 5% or more of any class of
Capital Stock of the Guarantor or with any Affiliate of the Guarantor or
any Restricted Subsidiary, except upon fair and reasonable terms no less
favorable to the Guarantor or such Restricted Subsidiary than could be
obtained, at the time of such transaction or at the time of the execution
of the agreement providing therefor, in a comparable arm's-length
transaction with a Person that is not such a holder or an Affiliate.
The foregoing limitation does not limit, and shall not apply to:
(i) transactions (A) approved by a majority of the
disinterested members of the Board of Directors or (B) for which the
Guarantor or a Restricted Subsidiary delivers to the Trustee a written
opinion of a nationally recognized investment banking firm stating
that the transaction is fair to the Guarantor or such Restricted
Subsidiary from a financial point of view;
(ii) any transaction solely between the Guarantor and any of its
Wholly Owned Restricted Subsidiaries or solely between Wholly Owned
Restricted Subsidiaries;
(iii) the payment of reasonable and customary regular fees to
directors of the Guarantor, the Company or Holdings (Canada) who are
not employees of the Guarantor, the Company or Holdings (Canada);
(iv) any payments or other transactions pursuant to any tax-
sharing agreement between the Guarantor and any other Person with
which the Guarantor files a consolidated tax return or with which the
Guarantor is part of a consolidated group for tax purposes; or
(v) any Restricted Payments not prohibited by Section 4.04.
Notwithstanding the foregoing, any transaction covered by the
first paragraph of this Section 4.08 and not covered by clauses (ii)
through (iv) of this paragraph, the aggregate amount of which exceeds $2
million in value, must be approved or determined to be fair in the manner
provided for in clause (i)(A) or (B) of this Section 4.08.
SECTION 4.09. Limitation on Liens. The Guarantor will not, and
-------------------
will not permit any Restricted Subsidiary to, create, incur, assume or
suffer to exist any Lien on any of its assets or properties of any
character, or any shares of Capital Stock or Indebtedness of any Restricted
Subsidiary, without making effective provision for all of the Securities
(or, in the case of a Lien on assets or properties of the Guarantor, the
Security Guarantee) and all other amounts due under this Indenture to be
directly secured equally and ratably with (or, if the obligation or
liability to be secured by such Lien is subordinated in right of payment to
the Securities or the Security Guarantee, prior to) the obligation or
liability secured by such Lien.
The foregoing limitation does not apply to:
(i) Liens existing on the Closing Date;
(ii) Liens granted after the Closing Date on any assets or
Capital Stock of Holdings (Canada), the Company or any of their
Restricted Subsidiaries created in favor of the Holders;
(iii) Liens with respect to the assets of a Restricted
Subsidiary granted by such Restricted Subsidiary to the Guarantor or a
Wholly Owned Restricted Subsidiary to secure Indebtedness owing to the
Guarantor or such other Restricted Subsidiary;
(iv) Liens securing Indebtedness which is Incurred to refinance
secured Indebtedness which is permitted to be Incurred under clause
(iii) of the second paragraph of Section 4.03(a); provided that such
Liens do not extend to or cover any property or assets of the
Guarantor, the Company or any Restricted Subsidiary other than the
property or assets securing the Indebtedness being refinanced;
(v) Liens with respect to assets or properties of any Person
that becomes a Restricted Subsidiary after the Closing Date; provided
that such Liens do not extend to or cover any assets or properties of
the Guarantor or any of its Restricted Subsidiaries other than the
assets or properties of such Person subject to such Lien on the date
such Person becomes a Restricted Subsidiary; and provided further that
such Liens are not incurred in contemplation of, or in connection
with, such Person becoming a Restricted Subsidiary;
(vi) Permitted Liens; or
(vii) Liens, solely in favor of Acquired Indebtedness, on
Capital Stock of Persons that become Restricted Subsidiaries of the
Guarantor after the Closing Date.
SECTION 4.10. Limitation on Sale-Leaseback Transactions. The
-----------------------------------------
Guarantor will not, and will not permit any Restricted Subsidiary to, enter
into any sale-leaseback transaction involving any of its assets or
properties whether now owned or hereafter acquired, whereby the Guarantor
or a Restricted Subsidiary sells or transfers such assets or properties and
then or thereafter leases such assets or properties or any part thereof or
any other assets or properties which the Guarantor or such Restricted
Subsidiary, as the case may be, intends to use for substantially the same
purpose or purposes as the assets or properties sold or transferred.
The foregoing restriction does not apply to any sale-leaseback
transaction if:
(i) the lease is for a period, including renewal rights, of not
in excess of three years;
(ii) the lease secures or relates to industrial revenue or
pollution control bonds;
(iii) the transaction is between the Guarantor and any Wholly
Owned Restricted Subsidiary or between Wholly Owned Restricted
Subsidiaries; or
(iv) the Guarantor or such Restricted Subsidiary, within six
months after the sale or transfer of any assets or properties is
completed, applies an amount not less than the net proceeds received
from such sale in accordance with clause (A) or (B) of the first
paragraph of Section 4.11.
SECTION 4.11. Limitation on Asset Sales. The Guarantor will
-------------------------
not, and will not permit any Restricted Subsidiary to, consummate any Asset
Sale, unless (i) the consideration received by the Guarantor or such
Restricted Subsidiary is at least equal to the fair market value of the
assets sold or disposed of and (ii) at least 75% of the consideration
received consists of cash or Temporary Cash Investments. In the event and
to the extent that the Net Cash Proceeds received by the Guarantor or its
Restricted Subsidiaries from one or more Asset Sales occurring on or after
the Closing Date in any period of 12 consecutive months exceed 10% of
Adjusted Consolidated Net Tangible Assets (determined as of the date
closest to the commencement of such 12-month period for which a
consolidated balance sheet of the Company and its Subsidiaries has been
prepared), then the Guarantor shall or shall cause the relevant Restricted
Subsidiary to (i) within six months after the date Net Cash Proceeds so
received exceed 10% of Adjusted Consolidated Net Tangible Assets (A) apply
an amount equal to such excess Net Cash Proceeds to permanently repay
unsubordinated Indebtedness of the Guarantor or the Company, or
Indebtedness of any Restricted Subsidiary other than the Company, in each
case owing to a Person other than the Guarantor or any of its Restricted
Subsidiaries or (B) invest an equal amount, or the amount not so applied
pursuant to clause (A) (or enter into a definitive agreement committing to
so invest within six months after the date of such agreement), in property
or assets of a nature or type or that are used in a business (or in a
company having property and assets of a nature or type, or engaged in a
business) similar or related to the nature or type of the property and
assets of, or the business of, the Guarantor and its Restricted
Subsidiaries existing on the date of such investment (as determined in good
faith by the Board of Directors, whose determination shall be conclusive
and evidenced by a Board Resolution) and (ii) apply (no later than the end
of the six-month period referred to in clause (i)) such excess Net Cash
Proceeds (to the extent not applied pursuant to clause (i)) as provided in
the following paragraphs of this Section 4.11. The amount of such excess
Net Cash Proceeds required to be applied (or to be committed to be applied)
during such six-month period as set forth in clause (i) of the preceding
sentence and not applied as so required by the end of such period shall
constitute "Excess Proceeds."
---------------
If, as of the first day of any calendar month, the aggregate
amount of Excess Proceeds not theretofore subject to an Offer to Purchase
pursuant to this Section 4.11 totals at least $10 million, the Company must
commence, not later than the fifteenth Business Day of such month, and
consummate an Offer to Purchase from the Holders on a pro rata basis an
aggregate Accreted Value of Securities equal to the Excess Proceeds on such
date, at a purchase price equal to 101% of the Accreted Value of the
Securities, plus, in each case, accrued interest (if any) to the date of
purchase.
SECTION 4.12. Repurchase of Securities upon a Change of Control.
-------------------------------------------------
The Company must commence, within 30 days of the occurrence of a Change of
Control, and consummate an Offer to Purchase for all Securities then
outstanding, at a purchase price equal to 101% of the Accreted Value
thereof, plus accrued interest (if any) to the date of purchase. Prior to
the mailing of the notice to Holders commencing such Offer to Purchase, but
in any event within 30 days following any Change of Control, the Company
covenants to (i) repay in full all indebtedness of the Company that would
prohibit the repurchase of the Securities pursuant to such Offer to
Purchase or (ii) obtain any requisite consents under instruments governing
any such indebtedness of the Company to permit the repurchase of the
Securities. The Company shall first comply with the covenant in the
preceding sentence before it shall be required to repurchase the Securities
pursuant to this Section 4.12.
SECTION 4.13. Existence. Subject to Articles Four and Five of
---------
this Indenture, the Guarantor will do or cause to be done all things
necessary to preserve and keep in full force and effect its existence and
the existence of each of its Restricted Subsidiaries in accordance with the
respective organizational documents of the Guarantor and each such
Subsidiary and the rights (whether pursuant to charter, partnership
certificate, agreement, statute or otherwise), material licenses and
franchises of the Guarantor and each such Subsidiary; provided that the
Guarantor shall not be required to preserve any such right, license or
franchise, or the existence of any Restricted Subsidiary (other than itself
and the Company), if the maintenance or preservation thereof is no longer
desirable in the conduct of the business of the Guarantor and its
Restricted Subsidiaries taken as a whole. In addition, the Guarantor
agrees to take such actions, within a reasonable time after the Closing
Date (and in any event prior to any proceeding initiated regarding the
dissolution of the Guarantor), as may be necessary to ensure that it shall
be in good standing under the laws of the jurisdiction of its
incorporation.
SECTION 4.14. Payment of Taxes and Other Claims. The Guarantor
---------------------------------
will pay or discharge and shall cause each of its Subsidiaries to pay or
discharge, or cause to be paid or discharged, before the same shall become
delinquent (i) all material taxes, assessments and governmental charges
levied or imposed upon (a) the Guarantor or any such Subsidiary, (b) the
income or profits of any such Subsidiary which is a corporation or (c) the
property of the Guarantor or any such Subsidiary and (ii) all material
lawful claims for labor, materials and supplies that, if unpaid, might by
law become a lien upon the property of the Guarantor or any such
Subsidiary; provided that the Guarantor shall not be required to pay or
discharge, or cause to be paid or discharged, any such tax, assessment,
charge or claim the amount, applicability or validity of which is being
contested in good faith by appropriate proceedings and for which adequate
reserves have been established.
SECTION 4.15. Maintenance of Properties and Insurance. The
---------------------------------------
Guarantor will cause all properties used or useful in the conduct of its
business or the business of any of its Restricted Subsidiaries, to be
maintained and kept in good condition, repair and working order and
supplied with all necessary equipment and will cause to be made all
necessary repairs, renewals, replacements, betterments and improvements
thereof, all as in the judgment of the Guarantor may be necessary so that
the business carried on in connection therewith may be properly and
advantageously conducted at all times; provided that nothing in this
Section 4.15 shall prevent the Guarantor or any such Subsidiary from
discontinuing the use, operation or maintenance of any of such properties
or disposing of any of them, if such discontinuance or disposal is, in the
judgment of the Guarantor, desirable in the conduct of the business of the
Guarantor or such Subsidiary.
The Guarantor will provide or cause to be provided, for itself
and its Restricted Subsidiaries, insurance (including appropriate self-
insurance) against loss or damage of the kinds customarily insured against
by corporations similarly situated and owning like properties, including,
but not limited to, products liability insurance and public liability
insurance, with reputable insurers or with the government of the United
States of America, or an agency or instrumentality thereof, in such
amounts, with such deductibles and by such methods as shall be customary
for corporations similarly situated in the industry in which the Guarantor
or such Restricted Subsidiary, as the case may be, is then conducting
business.
SECTION 4.16. Notice of Defaults. In the event that the Company
------------------
or the Guarantor becomes aware of any Default or Event of Default the
Company or the Guarantor, as the case may be, promptly after it becomes
aware thereof, will give written notice thereof to the Trustee.
SECTION 4.17. Compliance Certificates. (a) Each of the Company
-----------------------
and the Guarantor shall deliver to the Trustee, within 90 days after the
end of the Guarantor's fiscal year, an Officers' Certificate stating
whether or not the signers know of any Default or Event of Default that
occurred during such fiscal year. Such certificates shall contain a
certification from the principal executive officer, principal financial
officer or principal accounting officer of the Company or the Guarantor, as
the case may be, that a review has been conducted of the activities of the
Company, the Guarantor and the Restricted Subsidiaries and the Company's,
the Guarantor's and the Restricted Subsidiaries' performance under this
Indenture and that the Guarantor and the Company have complied with all
conditions and covenants under this Indenture. For purposes of this
Section 4.17, such compliance shall be determined without regard to any
period of grace or requirement of notice provided under this Indenture. If
they do know of such a Default or Event of Default, the certificate shall
describe any such Default or Event of Default and its status.
(b) The Guarantor shall deliver to the Trustee, within 90 days
after the end of its fiscal year, a certificate signed by the Guarantor's
independent certified public accountants stating (i) that their audit
examination has included a review of the terms of this Indenture and the
Securities as they relate to accounting matters, (ii) that they have read
the most recent Officers' Certificate delivered to the Trustee pursuant to
paragraph (a) of this Section 4.17 and (iii) whether, in connection with
their audit examination, anything came to their attention that caused them
to believe that the Company or Guarantor, as the case may be, was not in
compliance with any of the terms, covenants, provisions or conditions of
Article Four and Section 5.01 of this Indenture as they pertain to
accounting matters and, if any Default or Event of Default has come to
their attention, specifying the nature and period of existence thereof;
provided that such independent certified public accountants shall not be
liable in respect of such statement by reason of any failure to obtain
knowledge of any such Default or Event of Default that would not be
disclosed in the course of an audit examination conducted in accordance
with generally accepted auditing standards in effect at the date of such
examination.
(c) Within 90 days of the end of each of the Guarantor's fiscal
years, the Guarantor shall deliver to the Trustee a list of all Significant
Subsidiaries. The Trustee shall have no duty with respect to any such list
except to keep it on file and available for inspection by the Holders.
SECTION 4.18. Commission Reports and Reports to Holders.
-----------------------------------------
Whether or not the Company or the Guarantor is required to file reports
with the Commission, if any Securities are outstanding, the Company and the
Guarantor shall file with the Commission all such reports and other
information as they would be required to file with the Commission by
Section 13(a) or 15(d) under the Exchange Act. The Company shall supply
the Trustee and each Holder, or shall supply to the Trustee for forwarding
to each Holder, without cost to such Holder, copies of such reports or
other information.
SECTION 4.19. Waiver of Stay, Extension or Usury Laws. Each of
---------------------------------------
the Company and the Guarantor covenants (to the extent that it may lawfully
do so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension
law or any usury law or other law that would prohibit or forgive the
Company or the Guarantor, as the case may be, from paying all or any
portion of the principal of, premium, if any, or interest on the Securities
as contemplated herein, wherever enacted, now or at any time hereafter in
force, or that may affect the covenants or the performance of this
Indenture; and (to the extent that it may lawfully do so) each of the
Company and the Guarantor hereby expressly waives all benefit or advantage
of any such law and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and
permit the execution of every such power as though no such law had been
enacted.
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. When Company and Guarantor May Merge, Etc.
-----------------------------------------
Neither the Company nor the Guarantor shall consolidate with, merge with or
into, or sell, convey, transfer, lease or otherwise dispose of all or
substantially all of its property and assets (as an entirety or
substantially an entirety in one transaction or a series of related
transactions) to, any Person (other than a consolidation or merger with or
into a Wholly Owned Restricted Subsidiary with a positive net worth;
provided that, in connection with any such merger or consolidation, no
consideration (other than Common Stock in the surviving Person, the Company
or the Guarantor) shall be issued or distributed to the stockholders of the
Company or the Guarantor) or permit any Person to merge with or into the
Company or the Guarantor unless:
(i) the Company or the Guarantor shall be the continuing Person,
or the Person (if other than the Company or the Guarantor) formed by
such consolidation or into which the Company or the Guarantor is
merged or that acquired or leased such property and assets of the
Company or the Guarantor shall be a corporation organized and validly
existing under the laws of the United States of America or any
jurisdiction thereof and shall expressly assume, by a supplemental
indenture, executed and delivered to the Trustee, all of the
obligations of the Company or the Guarantor, as the case may be, under
this Indenture;
(ii) immediately after giving effect to such transaction, no
Default or Event of Default shall have occurred and be continuing;
(iii) immediately after giving effect to such transaction on
a pro forma basis, the Company or the Guarantor, as the case may be,
or any Person becoming the successor obligor of the Securities or the
Security Guarantee, as the case may be, shall have a Consolidated Net
Worth equal to or greater than the Consolidated Net Worth of the
Company or the Guarantor, as the case may be, immediately prior to
such transaction;
(iv) immediately after giving effect to such transaction on a pro
forma basis the Company, or any Person becoming the successor obligor
of the Securities, as the case may be, could Incur at least $1.00 of
Indebtedness under the first paragraph of Section 4.03(a); and
(v) the Company delivers to the Trustee an Officers' Certificate
(attaching the arithmetic computations to demonstrate compliance with
clauses (iii) and (iv) of this Section 5.01) and an Opinion of
Counsel, in each case stating that such consolidation, merger or
transfer and such supplemental indenture complies with this provision
and that all conditions precedent provided for herein relating to such
transaction have been complied with;
provided, however, that clauses (iii) and (iv) of this Section 5.01 do not
apply if, in the good faith determination of the Board of Directors of the
Guarantor, whose determination shall be evidenced by a Board Resolution,
the principal purpose of such transaction is part of a plan to change the
jurisdiction of incorporation of the Company or the Guarantor to a state of
the United States; and provided further that any such transaction shall not
have as one of its purposes the evasion of the foregoing limitations.
SECTION 5.02. Successor Substituted. Upon any consolidation or
---------------------
merger, or any sale, conveyance, transfer or other disposition of all or
substantially all of the property and assets of the Company or the
Guarantor in accordance with Section 5.01 of this Indenture, the successor
Person formed by such consolidation or into which the Company or the
Guarantor is merged or to which such sale, conveyance, transfer or other
disposition is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company or the Guarantor, as the
case may be, under this Indenture with the same effect as if such successor
Person had been named as the Company or the Guarantor, as the case may be,
herein.
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default. An "Event of Default" shall
----------------- ----------------
occur with respect to the Securities if:
(a) the Company defaults in the payment of the principal of (or
premium, if any, on) any Security when the same becomes due and
payable at maturity, upon acceleration, redemption or otherwise;
(b) the Company defaults in the payment of interest on any
Security 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 this Indenture or under the Securities and such default
or breach continues for a period of 30 consecutive days after written
notice to the Company or the Guarantor by the Trustee or the Holders
of 25% or more in aggregate principal amount at maturity of the
Securities;
(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.
SECTION 6.02. Acceleration. If an Event of Default (other than
------------
an Event of Default specified in clause (f) or (g) of Section 6.01 that
occurs with respect to the Company or the Guarantor) occurs and is
continuing under this Indenture, the Trustee or the Holders of at least 25%
in aggregate principal amount at maturity of the Securities, 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 Securities to be immediately due and
payable. Upon a declaration of acceleration, such Accreted Value of,
premium, if any, and accrued interest, if any, shall be immediately due and
payable. In the event of a declaration of acceleration because an Event of
Default set forth in clause (d) of Section 6.01 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 (d) shall be remedied or cured by the Company,
the Guarantor or the relevant Significant Subsidiary or waived by the
holders of the relevant Indebtedness within 60 days after the declaration
of acceleration with respect thereto. If an Event of Default specified in
clause (f) or (g) of Section 6.01 occurs with respect to the Company or the
Guarantor, the Accreted Value of, premium, if any, and accrued interest, if
any, on the Securities then outstanding shall ipso facto become and be
immediately due and payable without any declaration or other act on the
part of the Trustee or any Holder.
At any time after such a declaration of acceleration, but before
a judgment or decree for the payment of the money due has been obtained by
the Trustee, the Holders of at least a majority in principal amount at
maturity of the outstanding Securities by written notice to the Company and
to the Trustee may waive all past Defaults and rescind and annul such
declaration of acceleration and its consequences if (a) the Company or the
Guarantor has paid or deposited with the Trustee a sum sufficient to pay
(i) all sums paid or advanced by the Trustee hereunder and the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel, (ii) all overdue interest on all Securities, (iii) the
principal of and premium, if any, on any Securities that have become due
otherwise than by such declaration or occurrence of acceleration and
interest thereon at the rate prescribed therefor by such Securities, and
(iv) to the extent that payment of such interest is lawful, interest upon
overdue interest at the rate prescribed therefor by such Securities,
(b) all existing Events of Default, other than the non-payment of the
Accreted Value of, premium, if any, and accrued interest on the Securities
that have become due solely by such declaration of acceleration, have been
cured or waived and (c) the rescission would not conflict with any judgment
or decree of a court of competent jurisdiction.
SECTION 6.03. Other Remedies. If an Event of Default occurs and
--------------
is continuing, the Trustee may pursue any available remedy by proceeding at
law or in equity to collect the payment of principal of, premium, if any,
or interest on the Securities or to enforce the performance of any
provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not possess
any of the Securities or does not produce any of them in the proceeding.
SECTION 6.04. Waiver of Past Defaults. Subject to Sections
-----------------------
6.02, 6.07 and 9.02, the Holders of at least a majority in principal amount
at maturity of the outstanding Securities, by notice to the Trustee, may
waive an existing Default or Event of Default and its consequences, except
a Default in the payment of the Accreted Value of, premium, if any, or
accrued interest on any Security as specified in clause (a) or (b) of
Section 6.01 or in respect of a covenant or provision of this Indenture
which cannot be modified or amended without the consent of the holder of
each outstanding Security affected. Upon any such waiver, such Default
shall cease to exist, and any Event of Default arising therefrom shall be
deemed to have been cured, for every purpose of this Indenture; but no such
waiver shall extend to any subsequent or other Default or Event of Default
or impair any right consequent thereto.
SECTION 6.05. Control by Majority. The Holders of at least a
-------------------
majority in aggregate principal amount at maturity of the outstanding
Securities may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust
or power conferred on the Trustee; provided that the Trustee may refuse to
follow any direction that conflicts with law or this Indenture, that may
involve the Trustee in personal liability, or that the Trustee determines
in good faith may be unduly prejudicial to the rights of Holders not
joining in the giving of such direction; and provided further that the
Trustee may take any other action it deems proper that is not inconsistent
with any directions received from Holders of Securities pursuant to this
Section 6.05.
SECTION 6.06. Limitation on Suits. A Holder may not institute
-------------------
any proceeding, judicial or otherwise, with respect to this Indenture or
the Securities, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless:
(i) such Holder has previously given to the Trustee written
notice of a continuing Event of Default;
(ii) the Holders of at least 25% in aggregate principal amount at
maturity of outstanding Securities shall have made written request to
the Trustee to institute proceedings in respect of such Event of
Default in its own name as Trustee hereunder;
(iii) such Holder or Holders have offered to the Trustee
indemnity reasonably satisfactory to the Trustee against any costs,
liabilities or expenses to be incurred in compliance with such
request;
(iv) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(v) during such 60-day period, the Holders of a majority in
aggregate principal amount at maturity of the outstanding Securities
have not given the Trustee a direction that is inconsistent with such
written request.
For purposes of Section 6.05 of this Indenture and this Section
6.06, the Trustee shall comply with TIA Section 316(a) in making any
determination of whether the Holders of the required aggregate principal
amount at maturity of outstanding Securities have concurred in any request
or direction of the Trustee to pursue any remedy available to the Trustee
or the Holders with respect to this Indenture or the Securities or
otherwise under the law.
A Holder may not use this Indenture to prejudice the rights of
another Holder or to obtain a preference or priority over such other
Holder.
SECTION 6.07. Rights of Holders to Receive Payment.
------------------------------------
Notwithstanding any other provision of this Indenture, the right of any
Holder of a Security to receive payment of principal of, premium, if any,
or interest accrued on such Holder's Security on or after the respective
due dates expressed on such Security, or to bring suit for the enforcement
of any such payment on or after such respective dates, shall not be
impaired or affected without the consent of such Holder.
SECTION 6.08. Collection Suit by Trustee. If an Event of
--------------------------
Default in payment of principal, premium or interest specified in clause
(a), (b) or (c) of Section 6.01 occurs and is continuing, the Trustee may
recover judgment in its own name and as trustee of an express trust against
the Company or any other obligor of the Securities for the whole amount of
principal, premium, if any, and accrued interest remaining unpaid, together
with interest on overdue principal, premium, if any, and, to the extent
that payment of such interest is lawful, interest on overdue installments
of interest, in each case at the rate specified in the Securities, and such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel.
SECTION 6.09. Trustee May File Proofs of Claim. The Trustee may
--------------------------------
file such proofs of claim and other papers or documents as may be necessary
or advisable in order to have the claims of the Trustee (including any
claim for the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 7.07) and the Holders allowed in any judicial
proceedings relative to the Company (or any other obligor of the
Securities), its creditors or its property and shall be entitled and
empowered to collect and receive any monies, securities or other property
payable or deliverable upon conversion or exchange of the Securities or
upon any such claims and to distribute the same, and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or other similar
official in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agent and counsel, and any other amounts due the Trustee under Section
7.07. Nothing herein contained shall be deemed to empower the Trustee to
authorize or consent to, or accept or adopt on behalf of any Holder, any
plan of reorganization, arrangement, adjustment or composition affecting
the Securities or the rights of any Holder thereof, or to authorize the
Trustee to vote in respect of the claim of any Holder in any such
proceeding.
SECTION 6.10. Priorities. If the Trustee collects any money
----------
pursuant to this Article Six, it shall pay out the money in the following
order:
First: to the Trustee for all amounts due under Section 7.07;
Second: to Holders for amounts then due and unpaid for principal
of, premium, if any, and interest on the Securities in respect of
which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the
amounts due and payable on such Securities for principal, premium, if
any, and interest, respectively; and
Third: to the Company or any other obligors of the Securities,
as their interests may appear, or as a court of competent jurisdiction
may direct.
The Trustee, upon prior written notice to the Company, may fix a
record date and payment date for any payment to Holders pursuant to this
Section 6.10.
SECTION 6.11. Undertaking for Costs. In any suit for the
---------------------
enforcement of any right or remedy under this Indenture or in any suit
against the Trustee for any action taken or omitted by it as Trustee, a
court may require any party litigant in such suit to file an undertaking to
pay the costs of the suit, and the court may assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in the
suit having due regard to the merits and good faith of the claims or
defenses made by the party litigant. This Section 6.11 does not apply to a
suit by the Trustee, a suit by a Holder pursuant to Section 6.07 of this
Indenture, or a suit by Holders of more than 10% in principal amount at
maturity of the outstanding Securities.
SECTION 6.12. Restoration of Rights and Remedies. If the
----------------------------------
Trustee or any Holder has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Trustee
or to such Holder, then, and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders
shall be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Company, the
Trustee and the Holders shall continue as though no such proceeding had
been instituted.
SECTION 6.13. Rights and Remedies Cumulative. Except as
------------------------------
otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or wrongfully taken Securities in Section 2.09, no right or
remedy herein conferred upon or reserved to the Trustee or to the Holders
is intended to be exclusive of any other right or remedy, and every right
and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or
hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not
prevent the concurrent assertion or employment of any other appropriate
right or remedy.
SECTION 6.14. Delay or Omission Not Waiver. No delay or
----------------------------
omission of the Trustee or of any Holder to exercise any right or remedy
accruing upon any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence
therein. Every right and remedy given by this Article Six or by law to the
Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. General. The duties and responsibilities of the
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Trustee shall be as provided by the TIA and as set forth herein.
Notwithstanding the foregoing, no provision of this Indenture shall require
the Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder, or
in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to it. Whether or
not therein expressly so provided, every provision of this Indenture
relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this
Article Seven.
SECTION 7.02. Certain Rights of Trustee. Subject to TIA
-------------------------
Sections 315(a) through (d):
(i) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been signed
or presented by the proper person. The Trustee need not investigate
any fact or matter stated in the document and may in good faith
conclusively rely as to the truth of the statements and the
correctness of the opinions therein;
(ii) before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel, which shall
conform to Section 11.04. The Trustee shall not be liable for any
action it takes or omits to take in good faith in reliance on such
certificate, opinion and/or an accountants' certificate if required
under the TIA;
(iii) the Trustee may act through its attorneys and agents
and shall not be responsible for the misconduct or negligence of any
agent appointed with due care;
(iv) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders, unless such Holders shall have
offered to the Trustee security or indemnity reasonably satisfactory
to it against the costs, expenses and liabilities that might be
incurred by it in compliance with such request or direction;
(v) the Trustee shall not be liable for any action it takes or
omits to take in good faith that it believes to be authorized or
within its rights or powers or for any action it takes or omits to
take in accordance with the direction of the Holders of a majority in
principal amount at maturity of the Outstanding Securities relating to
the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred
upon the Trustee, under this Indenture; provided that the Trustee's
conduct does not constitute gross negligence or bad faith;
(vi) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a making be proved or established prior
to taking, suffering or omitting any action hereunder, the Trustee
(unless other evidence be herein specifically prescribed) may, in the
absence of bad faith on its part, rely upon an Officer's Certificate;
and
(vii) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be
entitled to examine the books, records and premises of the Company
personally or by agent or attorney.
SECTION 7.03. Individual Rights of Trustee. The Trustee, in its
----------------------------
individual or any other capacity, may become the owner or pledgee of
Securities and may otherwise deal with the Company or its Affiliates with
the same rights it would have if it were not the Trustee. Any Agent may do
the same with like rights. However, the Trustee is subject to TIA Sections
310(b) and 311.
SECTION 7.04. Trustee's Disclaimer. The Trustee (i) makes no
--------------------
representation as to the validity or adequacy of this Indenture or the
Securities, (ii) shall not be accountable for the Company's use or
application of the proceeds from the Securities and (iii) shall not be
responsible for any statement in the Securities other than its certificate
of authentication.
SECTION 7.05. Notice of Default. If any Default or any Event of
-----------------
Default occurs and is continuing and if such Default or Event of Default is
known to a trust officer of the Trustee, the Trustee shall mail to each
Holder in the manner and to the extent provided in TIA Section 313(c)
notice of the Default or Event of Default within 90 days after it occurs,
unless such Default or Event of Default has been cured; provided, however,
that, except in the case of a default in the payment of the principal of,
premium, if any, or interest on any Security, the Trustee shall be
protected in withholding such notice if and so long as the board of
directors, the executive committee or a trust committee of directors and/or
Responsible Officers of the Trustee in good faith determine that the
withholding of such notice is in the interest of the Holders.
SECTION 7.06. Reports by Trustee to Holders. Within 60 days
-----------------------------
after each May 15, beginning with May 15, 1997, the Trustee shall mail to
each Holder as provided in TIA Section 313(c) a brief report that complies
with TIA Section 313(a) dated as of such May 15, if required by TIA Section
313(a).
SECTION 7.07. Compensation and Indemnity. The Company shall pay
--------------------------
to the Trustee such compensation as shall be agreed upon in writing for its
services. The compensation of the Trustee shall not be limited by any law
on compensation of a trustee of an express trust. The Company shall
reimburse the Trustee upon request for all reasonable out-of-pocket
expenses and advances incurred or made by the Trustee. Such expenses shall
include the reasonable compensation and expenses of the Trustee's agents
and counsel.
The Company shall indemnify the Trustee for, and hold it harmless
against, any loss or liability or expense incurred by it without negligence
or bad faith on its part in connection with the acceptance or
administration of this Indenture and its duties under this Indenture and
the Securities, including the costs and expenses of defending itself
against any claim or liability and of complying with any process served
upon it or any of its officers in connection with the exercise or
performance of any of its powers or duties under this Indenture and the
Securities.
To secure the Company's payment obligations in this Section 7.07,
the Trustee shall have a lien prior to the Securities on all money or
property held or collected by the Trustee, in its capacity as Trustee,
except money or property held in trust to pay principal of, premium, if
any, and interest on particular Securities.
If the Trustee incurs expenses or renders services after the
occurrence of an Event of Default specified in clause (f) or (g) of Section
6.01, the expenses and the compensation for the services will be intended
to constitute expenses of administration under Title 11 of the United
States Bankruptcy Code or any applicable federal or state law for the
relief of debtors.
SECTION 7.08. Replacement of Trustee. A resignation or removal
----------------------
of the Trustee and appointment of a successor Trustee shall become
effective only upon the successor Trustee's acceptance of appointment as
provided in this Section 7.08.
The Trustee may resign at any time by so notifying the Company in
writing at least 30 days prior to the date of the proposed resignation.
The Holders of a majority in principal amount at maturity of the
outstanding Securities may remove the Trustee by so notifying the Trustee
in writing and may appoint a successor Trustee with the consent of the
Company. The Company may at any time remove the Trustee, by Company Order
given at least 30 days prior to the date of the proposed removal.
If the Trustee resigns or is removed, or if a vacancy exists in
the office of Trustee for any reason, the Company shall promptly appoint a
successor Trustee. Within one year after the successor Trustee takes
office, the Holders of a majority in principal amount at maturity of the
outstanding Securities may appoint a successor Trustee to replace the
successor Trustee appointed by the Company. If the successor Trustee does
not deliver its written acceptance required by the next succeeding
paragraph of this Section 7.08 within 30 days after the retiring Trustee
resigns or is removed, the retiring Trustee, the Company or the Holders of
a majority in principal amount at maturity of the outstanding Securities
may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately after
the delivery of such written acceptance, subject to the lien provided in
Section 7.07, (i) the retiring Trustee shall transfer all property held by
it as Trustee to the successor Trustee, (ii) the resignation or removal of
the retiring Trustee shall become effective and (iii) the successor Trustee
shall have all the rights, powers and duties of the Trustee under this
Indenture. A successor Trustee shall mail notice of its succession to each
Holder.
If the Trustee is no longer eligible under Section 7.10, any
Holder who satisfies the requirements of TIA Section 310(b) may petition
any court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee.
The Company shall give notice of any resignation and any removal
of the Trustee and each appointment of a successor Trustee to all Holders.
Each notice shall include the name of the successor Trustee and the address
of its Corporate Trust Office.
Notwithstanding replacement of the Trustee pursuant to this
Section 7.08, the Company's obligation under Section 7.07 shall continue
for the benefit of the retiring Trustee.
SECTION 7.09. Successor Trustee by Merger, Etc. If the Trustee
--------------------------------
consolidates with, merges or converts into, or transfers all or
substantially all of its corporate trust business to, another corporation
or national banking association, the resulting, surviving or transferee
corporation or national banking association without any further act shall
be the successor Trustee with the same effect as if the successor Trustee
had been named as the Trustee herein.
SECTION 7.10. Eligibility. This Indenture shall always have a
-----------
Trustee who satisfies the requirements of TIA Section 310(a)(1). The
Trustee shall have a combined capital and surplus of at least $25,000,000
as set forth in its most recent published annual report of condition.
SECTION 7.11. Money Held in Trust. The Trustee shall not be
-------------------
liable for interest on any money received by it except as the Trustee may
agree with the Company. Money held in trust by the Trustee need not be
segregated from other funds except to the extent required by law and except
for money held in trust under Article Eight of this Indenture.
SECTION 7.12. Withholding Taxes. The Trustee, as agent for the
-----------------
Company, shall exclude and withhold from each payment of principal and
interest and other amounts due hereunder or under the Securities any and
all withholding taxes applicable thereto as required by law. The Trustee
agrees to act as such withholding agent and, in connection therewith,
whenever any present or future taxes or similar charges are required to be
withheld with respect to any amounts payable in respect of the Securities,
to withhold such amounts and timely pay the same to the appropriate
authority in the name of and on behalf of the holders of the Securities,
that it will file any necessary withholding tax returns or statements when
due, and that, as promptly as possible after the payment thereof, it will
deliver to each holder of a Security appropriate documentation showing the
payment thereof, together with such additional documentary evidence as such
holders may reasonably request from time to time.
ARTICLE EIGHT
DISCHARGE OF INDENTURE
SECTION 8.01. Termination of Company's Obligations. Except as
------------------------------------
otherwise provided in this Section 8.01, the Company may terminate its
obligations under the Securities and this Indenture if:
(i) all Securities previously authenticated and delivered (other
than destroyed, lost or stolen Securities that have been replaced or
Securities that are paid pursuant to Section 4.01 or Securities for
whose payment money or securities have theretofore been held in trust
and thereafter repaid to the Company, as provided in Section 8.05)
have been delivered to the Trustee for cancellation and the Company
has paid all sums payable by it hereunder; or
(ii) (A) the Securities mature within one year or all of them are
to be called for redemption within one year under arrangements
satisfactory to the Trustee for giving the notice of redemption,
(B) the Company or the Guarantor irrevocably deposits in trust with
the Trustee during such one-year period, under the terms of an
irrevocable trust agreement in form and substance satisfactory to the
Trustee, as trust funds solely for the benefit of the Holders for that
purpose, money or U.S. Government Obligations sufficient (in the
opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to
the Trustee), without consideration of any reinvestment of any
interest thereon, to pay principal, premium, if, any, and interest on
the Securities to maturity or redemption, as the case may be, and to
pay all other sums payable by it hereunder, (C) no Default or Event of
Default with respect to the Securities shall have occurred and be
continuing on the date of such deposit, (D) such deposit will not
result in a breach or violation of, or constitute a default under,
this Indenture or any other agreement or instrument to which the
Company or the Guarantor is a party or by which it is bound and (E)
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 satisfaction and
discharge of this Indenture have been complied with.
With respect to the foregoing clause (i), the Company's
obligations under Section 7.07 shall survive. With respect to the
foregoing clause (ii), the Company's obligations in Sections 2.02, 2.03,
2.04, 2.05, 2.06, 2.07, 2.08, 2.09, 2.14, 4.01, 4.02, 7.07, 7.08, 8.04,
8.05 and 8.06 shall survive until the Securities are no longer outstanding.
Thereafter, only the Company's obligations in Sections 7.07, 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
obligations, as the case may be, under the Securities and this Indenture
except for those surviving obligations specified above.
SECTION 8.02. Defeasance and Discharge of Indenture. The
-------------------------------------
Company will be deemed to have paid and will be discharged from any and all
obligations in respect of the Securities on the 123rd day (or, to the
extent applicable under clause (D) below, one year) after the date of the
deposit referred to in clause (A) of this Section 8.02 if:
(A) with reference to this Section 8.02, the Company or the
Guarantor has irrevocably deposited or caused to be irrevocably
deposited with the Trustee (or another trustee satisfying the
requirements of Section 7.10 of this Indenture) 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 a nationally recognized firm of
independent public accountants expressed in a written certification
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 the
Stated Maturity of such principal or interest; provided that 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;
(B) such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other agreement or
instrument to which the Company or the Guarantor is a party or by
which it is bound;
(C) immediately after giving effect to such deposit on a pro
forma basis, no Default or Event of Default shall have occurred and be
continuing on the date of such deposit; and no Default or Event of
Default shall occur during the period ending on the 123rd day (or one
year) after such date of deposit and such deposit shall not result in
a breach or violation of, or constitute a default under, any other
agreement to which the Company or the Guarantor is a party or by which
the Company or the Guarantor is bound;
(D) the Company shall have delivered to the Trustee (1) either
(x) a ruling directed to the Trustee received from the Internal
Revenue Service to the effect that the Holders will not recognize
income, gain or loss for federal income tax purposes as a result of
the Company's exercise of its option under this Section 8.02 and will
be subject to federal income tax on the same amount and in the same
manner and at the same times as would have been the case if such
option had not been exercised or (y) an Opinion of Counsel to the same
effect as the ruling described in clause (x) above accompanied by a
ruling to that effect published by the Internal Revenue Service,
unless there has been a change in the applicable federal income tax
law since the date of this Indenture such that a ruling from the
Internal Revenue Service is no longer required and (2) an Opinion of
Counsel to the effect that (x) the creation of the defeasance trust
does not violate the Investment Company Act of 1940 and (y) after the
passage of 123 days following the deposit (except, with respect to any
trust funds for the account of any Holder who may be deemed to be an
"insider" for purposes of the United States Bankruptcy Code, after one
year following the deposit), the trust funds will not be subject to
the effect of Section 547 of the United States Bankruptcy Code or
Section 15 of the New York Debtor and Creditor Law in a case commenced
by or against the Company or the Guarantor under either such statute,
and either (I) the trust funds will no longer remain the property of
the Company or the Guarantor (and therefore will not be subject to the
effect of any applicable bankruptcy, insolvency, reorganization or
similar laws affecting creditors' rights generally) or (II) if a court
were to rule under any such law in any case or proceeding that the
trust funds remained property of the Company or the Guarantor
(a) assuming such trust funds remained in the possession of the
Trustee prior to such court ruling to the extent not paid to the
Holders, the Trustee will hold, for the benefit of the Holders, a
valid and perfected security interest in such trust funds that is not
avoidable in bankruptcy or otherwise except for the effect of Section
552(b) of the United States Bankruptcy Code on interest on the trust
funds accruing after the commencement of a case under such statute and
(b) the Holders will be entitled to receive adequate protection of
their interests in such trust funds if such trust funds are used in
such case or proceeding;
(E) if the Securities are then listed on a national securities
exchange, the Company shall have delivered to the Trustee an Opinion
of Counsel to the effect that such deposit defeasance and discharge
will not cause the Securities to be delisted; and
(F) 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, prior to the end of the 123-day
(or one year) period referred to in clause (D)(2)(y) of this Section 8.02,
none of the Company's obligations under this Indenture shall be discharged.
Subsequent to the end of such 123-day (or one year) period with respect to
this Section 8.02, the Company's obligations in Sections 2.02, 2.03, 2.04,
2.05, 2.06, 2.07, 2.08, 2.09, 2.14, 4.01, 4.02, 7.07, 7.08, 8.05 and 8.06
shall survive until the Securities are no longer outstanding. Thereafter,
only the Company's obligations in Sections 7.07, 8.05 and 8.06 shall
survive. If and when a ruling from the Internal Revenue Service or an
Opinion of Counsel referred to in clause (D)(1) of this Section 8.02 may be
provided specifically without regard to, and not in reliance upon, the
continuance of the Company's obligations under Section 4.01, then the
Company's obligations under such Section 4.01 shall cease upon delivery to
the Trustee of such ruling or Opinion of Counsel and compliance with the
other conditions precedent provided for herein relating to the defeasance
contemplated by this Section 8.02.
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.
SECTION 8.03. Defeasance of Certain Obligations. The Company
---------------------------------
and the Guarantor may omit to comply with any term, provision or condition
set forth in clauses (iii) and (iv) of Section 5.01 and Sections 4.03
through 4.18, and clause (c) of Section 6.01 with respect to clauses (iii)
and (iv) of Section 5.01 and Sections 4.03 through 4.18, and clauses (d)
and (e) of Section 6.01 shall be deemed not to be Events of Default, in
each case with respect to the outstanding Securities if:
(i) with reference to this Section 8.03, the Company or the
Guarantor 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 to the Trustee 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 (A) money in an amount, (B) U.S. Government Obligations
that, through the payment of interest 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 (i),
money in an amount or (C) a combination thereof in an amount
sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
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 on the
Stated Maturity of such principal or interest; provided that 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;
(ii) such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other agreement or
instrument to which the Company or the Guarantor is a party or by
which it is bound;
(iii) no Default or Event of Default shall have occurred and
be continuing on the date of such deposit;
(iv) the Company has delivered to the Trustee an Opinion of
Counsel to the effect that (A) the creation of the defeasance trust
does not violate the Investment Company Act of 1940, (B) the Holders
have a valid first-priority security interest in the trust funds, (C)
the Holders will not recognize income, gain or loss for federal income
tax purposes as a result of such deposit and the defeasance of the
obligations referred to in the first paragraph of this Section 8.03
and will be subject to federal income tax on the same amount and in
the same manner and at the same times as would have been the case if
such deposit and defeasance had not occurred and (D) after the passage
of 123 days following the deposit (except, with respect to any trust
funds for the account of any Holder who may be deemed to be an
"insider" for purposes of the United States Bankruptcy Code, after one
year following the deposit), the trust funds will not be subject to
the effect of Section 547 of the United States Bankruptcy Code or
Section 15 of the New York Debtor and Creditor Law in a case commenced
by or against the Company or the Guarantor under either such statute,
and either (1) the trust funds will no longer remain the property of
the Company or the Guarantor (and therefore will not be subject to the
effect of any applicable bankruptcy, insolvency, reorganization or
similar laws affecting creditors' rights generally) or (2) if a court
were to rule under any such law in any case or proceeding that the
trust funds remained property of the Company or the Guarantor
(x) assuming such trust funds remained in the possession of the
Trustee prior to such court ruling to the extent not paid to the
Holders, the Trustee will hold, for the benefit of the Holders, a
valid and perfected security interest in such trust funds that is not
avoidable in bankruptcy or otherwise (except for the effect of Section
552(b) of the United States Bankruptcy Code on interest on the trust
funds accruing after the commencement of a case under such statute),
(y) the Holders will be entitled to receive adequate protection of
their interests in such trust funds if such trust funds are used in
such case or proceeding and (z) no property, rights in property or
other interests granted to the Trustee or the Holders in exchange for,
or with respect to, such trust funds will be subject to any prior
rights of holders of other Indebtedness of the Company or the
Guarantor or any of its Subsidiaries;
(v) if the Securities are then listed on a national securities
exchange, the Company shall have delivered to the Trustee an Opinion
of Counsel to the effect that such deposit defeasance and discharge
will not cause the Securities to be delisted; and
(vi) 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 8.03 have been complied with.
SECTION 8.04. Application of Trust Money. Subject to Section
--------------------------
8.06, the Trustee or Paying Agent shall hold in trust money or U.S.
Government Obligations deposited with it pursuant to Section 8.01, 8.02 or
8.03, as the case may be, and shall apply the deposited money and the money
from U.S. Government Obligations in accordance with the Securities and this
Indenture to the payment of principal of, premium, if any, and interest on
the Securities; but such money need not be segregated from other funds
except to the extent required by law.
SECTION 8.05. Repayment to Company. Subject to Sections 7.07,
--------------------
8.01, 8.02 and 8.03, the Trustee and the Paying Agent shall promptly pay to
the Company upon request set forth in an Officers' Certificate any excess
money held by them at any time and thereupon shall be relieved from all
liability with respect to such money. The Trustee and the Paying Agent
shall pay to the Company upon request any money held by them for the
payment of principal, premium, if any, or interest that remains unclaimed
for two years; provided that the Trustee or such Paying Agent before being
required to make any payment may cause to be published at the expense of
the Company once in a newspaper of general circulation in the City of New
York or mail to each Holder entitled to such money at such Holder's address
(as set forth in the Security Register) notice that such money remains
unclaimed and that after a date specified therein (which shall be at least
30 days from the date of such publication or mailing) any unclaimed balance
of such money then remaining will be repaid to the Company. After payment
to the Company, Holders entitled to such money must look to the Company for
payment as general creditors unless an applicable law designates another
Person, and all liability of the Trustee and such Paying Agent with respect
to such money shall cease.
SECTION 8.06. Reinstatement. If the Trustee or Paying Agent is
-------------
unable to apply any money or U.S. Government Obligations in accordance with
Section 8.01, 8.02 or 8.03, as the case may be, by reason of any legal
proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the Company's and the Guarantor's obligations under this
Indenture and the Securities shall be revived and reinstated as though no
deposit had occurred pursuant to Section 8.01, 8.02 or 8.03, as the case
may be, until such time as the Trustee or Paying Agent is permitted to
apply all such money or U.S. Government Obligations in accordance with
Section 8.01, 8.02 or 8.03, as the case may be; provided that, if the
Company or the Guarantor has made any payment of principal of, premium, if
any, or interest on any Securities because of the reinstatement of its
obligations, the Company or the Guarantor, as the case may be, shall be
subrogated to the rights of the Holders of such Securities to receive such
payment from the money or U.S. Government Obligations held by the Trustee
or Paying Agent.
SECTION 8.07. Insiders. With respect to the determination of
--------
the Persons constituting beneficial owners of Securities and whether any
such Person is an "insider" for purposes of Sections 8.02(D)(2)(y) and
8.03(iv)(D), the Trustee may rely on an Officers' Certificate.
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders. The Company, the
--------------------------
Guarantor, when authorized by resolutions of their Boards of Directors, and
the Trustee may amend or supplement this Indenture or the Securities
without notice to or the consent of any Holder:
(1) to cure any ambiguity, defect or inconsistency in this
Indenture; provided that such amendments or supplements shall not
adversely affect the interests of the Holders in any material respect;
(2) to comply with Article Five;
(3) to comply with any requirements of the Commission in
connection with the qualification of this Indenture under the TIA;
(4) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee; or
(5) to make any change that, in the opinion of the Board of
Directors of the Company evidenced by a Board Resolution, does not
materially and adversely affect the rights of any Holder.
SECTION 9.02. With Consent of Holders. Subject to Sections 6.04
-----------------------
and 6.07 and without prior notice to the Holders, the Company, the
Guarantor, when authorized by their Boards of Directors (as evidenced by a
Board Resolution), and the Trustee may amend this Indenture and the
Securities with the written consent of the Holders of a majority in
principal amount at maturity of the Securities then outstanding, and the
Holders of a majority in principal amount at maturity of the Securities
then outstanding by written notice to the Trustee may waive future
compliance by the Company or the Guarantor with any provision of this
Indenture or the Securities.
Notwithstanding the provisions of this Section 9.02, without the
consent of each Holder affected, an amendment or waiver, including a waiver
pursuant to Section 6.04, may not:
(i) change the Stated Maturity of the principal of, or any
installment of interest on, any Security, or reduce the principal
amount at maturity thereof or the rate of interest thereon or any
premium payable upon the redemption thereof, or adversely affect any
right of repayment at the option of any Holder of any Security, or the
currency in which, any Security or any premium or the interest thereon
is payable, or impair the right to institute suit for the enforcement
of any such payment on or after the Stated Maturity thereof (or, in
the case of redemption, on or after the Redemption Date);
(ii) reduce the percentage in principal amount at maturity of
outstanding Securities the consent of whose Holders is required for
any such supplemental indenture, for any waiver of compliance with
certain provisions of this Indenture or certain Defaults and their
consequences provided for in this Indenture;
(iii) waive a Default in the payment of principal of,
premium, if any, or interest on, any Security;
(iv) release the Guarantor from its Security Guarantee; or
(v) modify any of the provisions of this Section 9.02, except to
increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each outstanding Security affected thereby.
It shall not be necessary for the consent of the Holders under
this Section 9.02 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves
the substance thereof.
After an amendment, supplement or waiver under this Section 9.02
becomes effective, the Company shall mail to the Holders affected thereby a
notice briefly describing the amendment, supplement or waiver. The Company
will mail supplemental indentures to Holders upon request. Any failure of
the Company to mail such notice, or any defect therein, shall not, however,
in any way impair or affect the validity of any such supplemental indenture
or waiver.
SECTION 9.03. Revocation and Effect of Consent. Until an
--------------------------------
amendment or waiver becomes effective, a consent to it by a Holder is a
continuing consent by the Holder and every subsequent Holder of a Security
or portion of a Security that evidences the same debt as the Security of
the consenting Holder, even if notation of the consent is not made on any
Security. However, any such Holder or subsequent Holder may revoke the
consent as to its Security or portion of its Security. Such revocation
shall be effective only if the Trustee receives the notice of revocation
before the date the amendment, supplement or waiver becomes effective. An
amendment, supplement or waiver shall become effective on receipt by the
Trustee of written consents from the Holders of the requisite percentage in
principal amount at maturity of the outstanding Securities.
The Company may, but shall not be obligated to, fix a record date
for the purpose of determining the Holders entitled to consent to any
amendment, supplement or waiver. If a record date is fixed, then,
notwithstanding the last two sentences of the immediately preceding
paragraph, those persons who were Holders at such record date (or their
duly designated proxies) and only those persons shall be entitled to
consent to such amendment, supplement or waiver or to revoke any consent
previously given, whether or not such persons continue to be Holders after
such record date. No such consent shall be valid or effective for more
than 90 days after such record date.
After an amendment, supplement or waiver becomes effective, it
shall bind every Holder unless it is of the type described in any of
clauses (i) through (v) of Section 9.02. In case of an amendment or waiver
of the type described in clauses (i) through (v) of Section 9.02, the
amendment or waiver shall bind each Holder who has consented to it and
every subsequent Holder of a Security that evidences the same indebtedness
as the Security of the consenting Holder.
SECTION 9.04. Notation on or Exchange of Securities. If an
-------------------------------------
amendment, supplement or waiver changes the terms of a Security, the
Trustee may require the Holder to deliver it to the Trustee. The Trustee
may place an appropriate notation on the Security about the changed terms
and return it to the Holder and the Trustee may place an appropriate
notation on any Security thereafter authenticated. Alternatively, if the
Company or the Trustee so determines, the Company in exchange for the
Security shall issue and the Trustee shall authenticate a new Security that
reflects the changed terms.
SECTION 9.05. Trustee to Sign Amendments, Etc. The Trustee
-------------------------------
shall be entitled to receive, and shall be fully protected in relying upon,
an Opinion of Counsel stating that the execution of any amendment,
supplement or waiver authorized pursuant to this Article Nine is authorized
or permitted by this Indenture. Subject to the preceding sentence, the
Trustee shall sign such amendment, supplement or waiver if the same does
not adversely affect the rights of the Trustee. The Trustee may, but shall
not be obligated to, execute any such amendment, supplement or waiver that
affects the Trustee's own rights, duties or immunities under this Indenture
or otherwise.
SECTION 9.06. Conformity with Trust Indenture Act. Every
-----------------------------------
supplemental indenture executed pursuant to this Article Nine shall conform
to the requirements of the TIA as then in effect.
ARTICLE TEN
GUARANTEE OF SECURITIES
SECTION 10.01. Security Guarantee. Subject to the provisions of
------------------
this Article Ten, the Guarantor hereby fully, unconditionally and
irrevocably guarantees to each Holder and to the Trustee on behalf of the
Holders: (i) the due and punctual payment of the principal of, premium, if
any, on and interest on each Security, when and as the same shall become
due and payable, whether at maturity, by acceleration or otherwise, the due
and punctual payment of interest on the overdue principal of and interest,
if any, on the Securities, to the extent lawful, and the due and punctual
performance of all other obligations of the Company to the Holders or the
Trustee, all in accordance with the terms of such Security and this
Indenture and (ii) in the case of any extension of time of payment or
renewal of any Securities or any of such other obligations, that the same
will be promptly paid in full when due or performed in accordance with the
terms of the extension or renewal, at Stated Maturity, by acceleration or
otherwise. The Guarantor hereby waives diligence, presentment, demand of
payment, filing of claims with a court in the event of merger or bankruptcy
of the Company, any right to require a proceeding first against the
Company, the benefit of discussion, protest or notice with respect to any
such Security or the debt evidenced thereby and all demands whatsoever, and
covenants that this Security Guarantee will not be discharged as to any
such Security except by payment in full of the principal thereof and
interest thereon and as provided in Section 8.01 and Section 8.02 (subject
to Section 8.06). The maturity of the obligations guaranteed hereby may be
accelerated as provided in Article Six for the purposes of this Article
Ten. In the event of any declaration of acceleration of such obligations
as provided in Article Six, such obligations (whether or not due and
payable) shall forthwith become due and payable by the Guarantor for the
purpose of this Article Ten. In addition, without limiting the foregoing
provisions, upon the effectiveness of an acceleration under Article Six,
the Trustee shall promptly make a demand for payment on the Securities
under the Security Guarantee provided for in this Article Ten.
If the Trustee or the Holder of any Security is required by any
court or otherwise to return to the Company or the Guarantor, or any
custodian, receiver, liquidator, trustee, sequestrator or other similar
official acting in relation to the Company or the Guarantor, any amount
paid to the Trustee or such Holder in respect of a Security, this Security
Guarantee, to the extent theretofore discharged, shall be reinstated in
full force and effect. The Guarantor further agrees, to the fullest extent
that it may lawfully do so, that, as between it, on the one hand, and the
Holders and the Trustee, on the other hand, the maturity of the obligations
guaranteed hereby may be accelerated as provided in Article Six hereof for
the purposes of this Security Guarantee, notwithstanding any stay,
injunction or other prohibition extant under any applicable bankruptcy law
preventing such acceleration in respect of the obligations Guaranteed
hereby.
The Guarantor hereby irrevocably waives any claim or other rights
which it may now or hereafter acquire against the Company that arise from
the existence, payment, performance or enforcement of its obligations under
this Security Guarantee and this Indenture, including, without limitation,
any right of subrogation, reimbursement, exoneration, contribution,
indemnification, any right to participate in any claim or remedy of the
Holders against the Company or any collateral which any such Holder or the
Trustee on behalf of such Holder hereafter acquires, whether or not such
claim, remedy or right arises in equity, or under contract, statute or
common law, including, without limitation, the right to take or receive
from the Company, directly or indirectly, in cash or other property or by
set-off or in any other manner, payment or security on account of such
claim or other rights. If any amount shall be paid to the Guarantor in
violation of the preceding sentence and the principal of, premium, if any,
and accrued interest on the Securities shall not have been paid in full,
such amount shall be deemed to have been paid to the Guarantor for the
benefit of, and held in trust for the benefit of, the Holders, and shall
forthwith be paid to the Trustee for the benefit of the Holders to be
credited and applied upon the principal of, premium, if any, and accrued
interest on the Securities. The Guarantor acknowledges that it will
receive direct and indirect benefits from the issuance of the Securities
pursuant to this Indenture and that the waivers set forth in this Section
10.01 are knowingly made in contemplation of such benefits.
The Security Guarantee set forth in this Section 10.01 shall not
be valid or become obligatory for any purpose with respect to a Security
until the certificate of authentication on such Security shall have been
signed by or on behalf of the Trustee.
SECTION 10.02. Obligations Unconditional. Subject to Section
-------------------------
10.05, nothing contained in this Article Ten or elsewhere in this Indenture
or in the Securities is intended to or shall impair, as among the Guarantor
and the holders of the Securities, the obligation of the Guarantor, which
is absolute and unconditional, upon failure by the Company, to pay to the
holders of the Securities the principal of, premium, if any, and interest
on the Securities as and when the same shall become due and payable in
accordance with their terms, or is intended to or shall affect the relative
rights of the holders of the Securities and creditors of the Guarantor, nor
shall anything herein or therein prevent the holder of any Security or the
Trustee on their behalf from exercising all remedies otherwise permitted by
applicable law upon default under this Indenture.
Without limiting the foregoing, nothing contained in this Article
Ten will restrict the right of the Trustee or the holders of the Securities
to take any action to declare the Security Guarantee to be due and payable
prior to the Stated Maturity of the Securities pursuant to Section 6.02 or
to pursue any rights or remedies hereunder.
SECTION 10.03. Notice to Trustee. The Guarantor shall give
-----------------
prompt written notice to the Trustee of any fact known to the Guarantor
which would prohibit the making of any payment to or by the Trustee in
respect of the Security Guarantee pursuant to the provisions of this
Article Ten.
SECTION 10.04. This Article Not to Prevent Events of Default.
---------------------------------------------
The failure to make a payment on account of principal of, premium, if any,
or interest on the Securities by reason of any provision of this Article
will not be construed as preventing the occurrence of an Event of Default.
SECTION 10.05. Net Worth Limitation. Notwithstanding any other
--------------------
provision of this Indenture or the Securities, the Security Guarantee shall
not be enforceable against the Guarantor in an amount in excess of the net
worth of the Guarantor at the time that determination of such net worth is,
under applicable law, relevant to the enforceability of the Security
Guarantee. Such net worth shall include any claim of the Guarantor against
the Company for reimbursement and any claim against any grantor of a
Subsidiary Guarantee for contribution.
ARTICLE ELEVEN
MISCELLANEOUS
SECTION 11.01. Trust Indenture Act of 1939. Prior to the
---------------------------
effectiveness of the Registration Statement, this Indenture shall
incorporate and be governed by the provisions of the TIA that are required
to be part of and to govern indentures qualified under the TIA. After the
effectiveness of the Registration Statement, this Indenture shall be
subject to the provisions of the TIA that are required to be a part of this
Indenture and shall, to the extent applicable, be governed by such
provisions.
SECTION 11.02. Notices. Any notice or communication shall be
-------
sufficiently given if in writing and delivered in person or mailed by first
class mail addressed as follows:
if to the Company:
-----------------
ICG Holdings, Inc.
9605 East Maroon Circle
P.O. Box 6742
Englewood, Colorado 80155-6742
Attention: President
if to the Guarantor:
-------------------
ICG Communications, Inc.
9605 East Maroon Circle
P.O. Box 6742
Englewood, Colorado 80155-6742
Attention: President
if to the Trustee:
-----------------
Norwest Bank Colorado, National Association
1740 Broadway
Denver, Colorado 80274-8693
Attention: Corporate Trust and Escrow Services
The Company, the Guarantor or the Trustee by notice to the other
may designate additional or different addresses for subsequent notices or
communications.
Any notice or communication mailed to a Holder shall be mailed to
him at his address as it appears on the Security Register by first class
mail and shall be sufficiently given to him if so mailed within the time
prescribed. Copies of any such communication or notice to a Holder shall
also be mailed to the Trustee and each Agent at the same time.
Failure to mail a notice or communication to a Holder or any
defect in it shall not affect its sufficiency with respect to other
Holders. Except for a notice to the Trustee, which is deemed given only
when received, and except as otherwise provided in this Indenture, if a
notice or communication is mailed in the manner provided in this Section
11.02, it is duly given, whether or not the addressee receives it.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such
notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed
with the Trustee, but such filing shall not be a condition precedent to the
validity of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made with the approval of the
Trustee shall constitute a sufficient notification for every purpose
hereunder.
SECTION 11.03. Certificate and Opinion as to Conditions
-----------------------------------------
Precedent. Upon any request or application by the Company or the Guarantor
---------
to the Trustee to take any action under this Indenture, the Company or the
Guarantor shall furnish to the Trustee:
(i) an Officers' Certificate stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with; and
(ii) an Opinion of Counsel stating that, in the opinion of such
Counsel, all such conditions precedent have been complied with.
SECTION 11.04. Statements Required in Certificate or Opinion.
---------------------------------------------
Each certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include:
(i) a statement that each person signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statement or opinion
contained in such certificate or opinion is based;
(iii) a statement that, in the opinion of each such person,
he has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(iv) a statement as to whether or not, in the opinion of each
such person, such condition or covenant has been complied with;
provided, however, that, with respect to matters of fact, an Opinion
of Counsel may rely on an Officers' Certificate or certificates of
public officials.
SECTION 11.05. Rules by Trustee, Paying Agent or Registrar. The
-------------------------------------------
Trustee may make reasonable rules for action by or at a meeting of Holders.
The Paying Agent or Registrar may make reasonable rules for its functions.
SECTION 11.06. Payment Date Other Than a Business Day. If an
--------------------------------------
Interest Payment Date, Redemption Date, Change of Control Payment Date,
Excess Proceeds Payment Date, Stated Maturity or date of maturity of any
Security shall not be a Business Day, then payment of principal of,
premium, if any, or interest on such Security, as the case may be, need not
be made on such date, but may be made on the next succeeding Business Day
with the same force and effect as if made on the Interest Payment Date,
Change of Control Payment Date, Excess Proceeds Payment Date, or Redemption
Date, or at the Stated Maturity or date of maturity of such Security;
provided that no interest shall accrue for the period from and after such
Interest Payment Date, Change of Control Payment Date, Excess Proceeds
Payment Date, Redemption Date, Stated Maturity or date of maturity, as the
case may be.
SECTION 11.07. Governing Law; Submission to Jurisdiction. The
-----------------------------------------
laws of the State of New York applicable to contracts to be performed
entirely in that state shall govern this Indenture and the Securities.
Each of the Guarantor and the Company agrees to submit to the jurisdiction
of any federal or state court located in the City of New York in any suit,
action or proceeding with respect to this Indenture or the Securities and
for actions brought under the U.S. federal or state securities laws brought
in any such court.
SECTION 11.08. No Adverse Interpretation of Other Agreements.
---------------------------------------------
This Indenture may not be used to interpret another indenture, loan or debt
agreement of the Company, the Guarantor or any Subsidiary of the Guarantor.
Any such indenture, loan or debt agreement may not be used to interpret
this Indenture.
SECTION 11.09. No Recourse Against Others. No recourse for the
--------------------------
payment of the principal of, premium, if any, or interest on any of the
Securities, or for any claim based thereon or otherwise in respect thereof,
and no recourse under or upon any obligation, covenant or agreement of the
Company or the Guarantor contained in this Indenture, or in any of the
Securities, or because of the creation of any Indebtedness represented
thereby, shall be had against any incorporator or against any past, present
or future partner, shareholder, other equityholder, officer, director,
employee or controlling person, as such, of the Company or the Guarantor or
of any successor Person, either directly or through the Company or the
Guarantor or any successor Person, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment or penalty
or otherwise; it being expressly understood that all such liability is
hereby expressly waived and released as a condition of, and as a
consideration for, the execution of this Indenture and the issue of the
Securities.
SECTION 11.10. Successors. All agreements of the Company in
----------
this Indenture and the Securities shall bind its successors. All
agreements of the Guarantor in this Indenture and the Securities shall bind
its successors. All agreements of the Trustee in this Indenture shall bind
its successors.
SECTION 11.11. Duplicate Originals. The parties may sign any
-------------------
number of copies of this Indenture. Each signed copy shall be an original,
but all of them together represent the same agreement.
SECTION 11.12. Separability. In case any provision in this
------------
Indenture or in the Securities 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.
SECTION 11.13. Table of Contents, Headings, Etc. The Table of
--------------------------------
Contents, Cross-Reference Table and headings of the Articles and Sections
of this Indenture have been inserted for convenience of reference only, are
not to be considered a part hereof and shall in no way modify or restrict
any of the terms and provisions hereof.
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed, all as of the date first written above.
ICG HOLDINGS, INC.
By: /s/ James D. Grenfell
---------------------------------
Name: James D. Grenfell
Title: Executive Vice President,
Chief Financial Officer
and Treasurer
ICG COMMUNICATIONS, INC.
By: /s/ James D. Grenfell
----------------------------------
Name: James D. Grenfell
Title: Executive Vice President,
Chief Financial Officer
and Treasurer
NORWEST BANK COLORADO,
NATIONAL ASSOCIATION
By: /s/ Amy E. Buck
--------------------------------
Name: Amy E. Buck
Title: Vice President
EXHIBIT A
---------
[FACE OF NOTE]
ICG HOLDINGS, INC.
11 5/8% Senior Discount Note Due 2007
[CUSIP] [CINS]
----------
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): $567.66
ICG HOLDINGS, INC., a Colorado corporation (the "Company", which
term includes any successor under the Indenture hereinafter referred to),
for value received, promises to pay to [ ], or its registered
------------
assigns, the principal sum of [ ] ($[ ]) on March 15, 2007.
----- -----
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.
---------------
By:
--------------------------------
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:
--------------------------------
Authorized Signatory
[REVERSE SIDE OF NOTE]
ICG HOLDINGS, INC.
11 5/8% Senior Discount Note due 2007
1. Principal and Interest.
----------------------
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.
-----------------
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.
--------------------------
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.
---------------------------------------
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.
----------
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
---- -------------
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.
--------------------
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.
---------------------------------
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.
---------------------------------
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.
---------------------
A Holder shall be treated as the owner of a Note for all
purposes.
10. Unclaimed Money.
---------------
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.
-----------------------------------------
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.
-----------------------------
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.
---------------------
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.
-----------------
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.
---------------------
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.
---------
The Company's obligations under the Notes are fully and
irrevocably guaranteed by the Guarantor.
17. Trustee Dealings with Company or Guarantor.
------------------------------------------
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.
--------------------------
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.
--------------
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.
-------------
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.
----------------------------------
--------------------------------------------------------------------------
---------------------------------
Please print or typewrite name and address including zip code of assignee
---------------------------------------------------------------------------
-----------------------------------
the within Note and all rights thereunder, hereby irrevocably constituting
and appointing
------------------------------------------------------------
attorney to transfer said Note on the books of the Company with
-------
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]
---------
[ ] (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:
---------------------------------------------------------------------
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:
--------------------------------------------------------------------
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): $ .
-------------------
Date:
-----------------
Your Signature:
-----------------------------------------------------------
(Sign exactly as your name appears on the other side of this Note)
Signature Guarantee:
------------------------------
EXHIBIT B
---------
Form of Certificate
-------------------
Norwest Bank Colorado, N.A. , 19
---------- -- --
1740 Broadway
Denver, Colorado 80274-8693
Attention: Corporate Trust and Escrow Services
Re: ICG Holdings, Inc. (the "Company")
11 5/8% Senior Discount Notes
due 2007 (the "Securities")
----------------------------------------
Ladies and Gentlemen:
This letter relates to U.S. $ principal amount
---------------
at maturity of Securities represented by a Note (the "Legended Note") which
bears a legend outlining restrictions upon transfer of such Legended Note.
Pursuant to Section 2.02 of the Indenture (the "Indenture") dated as of
March 11, 1997 relating to the Securities, we hereby certify that we are
(or we will hold such Securities on behalf of) a person outside the United
States to whom the Securities could be transferred in accordance with Rule
904 of Regulation S promulgated under the U.S. Securities Act of 1933, as
amended. Accordingly, you are hereby requested to exchange the legended
certificate for an unlegended certificate representing an identical
principal amount at maturity of Securities, all in the manner provided for
in the Indenture.
You and the Company are entitled to rely upon this letter and
are irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official
inquiry with respect to the matters covered hereby. Terms used in this
certificate have the meanings set forth in Regulation S.
Very truly yours,
[Name of Holder]
By:
------------------------------------
Authorized Signature
EXHIBIT C
---------
Form of Certificate to Be Delivered
in Connection with Transfers
Pursuant to Regulation S
-----------------------------------
Norwest Bank Colorado, N.A. , 19
---------- -- --
1740 Broadway
Denver, Colorado 80274-8693
Attention: Corporate Trust and Escrow Services
Re: ICG Holdings, Inc. (the "Company")
11 5/8% Senior Discount Notes
due 2007 (the "Securities")
---------------------------------------
Ladies and Gentlemen:
In connection with our proposed sale of U.S.$
------------
aggregate principal amount at maturity of the Securities, we confirm that
such sale has been effected pursuant to and in accordance with Regulation S
under the Securities Act of 1933, as amended, and, accordingly, we
represent that:
(1) the offer of the Securities was not made to a person in
the United States;
(2) at the time the buy order was originated, the transferee
was outside the United States or we and any person acting on our
behalf reasonably believed that the transferee was outside the
United States;
(3) no directed selling efforts have been made by us in the
United States in contravention of the requirements of Rule 903(b)
or Rule 904(b) of Regulation S, as applicable; and
(4) the transaction is not part of a plan or scheme to evade
the registration requirements of the U.S. Securities Act of 1933.
You and the Company are entitled to rely upon this letter and
are irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official
inquiry with respect to the matters covered hereby. Terms used in this
certificate have the meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By:
----------------------------
Authorized Signature
EXHIBIT D
---------
Form of Certificate to Be
Delivered in Connection with
Transfers to Non-QIB Accredited Investors
-----------------------------------------
Norwest Bank Colorado, N.A. , 19
---------- -- --
1740 Broadway
Denver, Colorado 80274-8693
Attention: Corporate Trust and Escrow Services
Re: ICG Holdings, Inc. (the "Company")
11 5/8% Senior Discount Notes
due 2007 (the "Securities")
---------------------------------------
Dear Sirs:
In connection with our proposed purchase of $
-----------
aggregate principal amount of the Securities, we confirm that:
1. We understand that any subsequent transfer of the
Securities is subject to certain restrictions and conditions set
forth in the Indenture dated as of March 11, 1997 relating to the
Securities (the "Indenture") and the undersigned agrees to be
bound by, and not to resell, pledge or otherwise transfer the
Securities except in compliance with, such restrictions and
conditions and the Securities Act of 1933, as amended (the
"Securities Act").
2. We understand that the offer and sale of the Securities
have not been registered under the Securities Act, and that the
Securities may not be offered or sold except as permitted in the
following sentence. We agree, on our own behalf and on behalf of
any accounts for which we are acting as hereinafter stated, that
if we should sell any Securities, we will do so only (A) to the
Company or any subsidiary thereof, (B) in accordance with
Rule 144A under the Securities Act to a "qualified institutional
buyer" (as defined therein), (C) to an institutional "accredited
investor" (as defined below) that, prior to such transfer,
furnishes (or has furnished on its behalf by a U.S. broker-dealer)
to you and to the Company a signed letter substantially in the
form of this letter, (D) outside the United States in accordance
with Rule 904 of Regulation S under the Securities Act, (E)
pursuant to the provisions of Rule 144 under the Securities Act,
or (F) pursuant to an effective registration statement under the
Securities Act, and we further agree to provide to any person
purchasing any of the Securities from us a notice advising such
purchaser that resales of the Securities are restricted as stated
herein.
3. We understand that, on any proposed resale of any
Securities, we will be required to furnish to you and the Company
such certifications, legal opinions and other information as you
and the Company may reasonably require to confirm that the
proposed sale complies with the foregoing restrictions. We
further understand that the Securities purchased by us will bear a
legend to the foregoing effect.
4. We are an institutional "accredited investor" (as
defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D under
the Securities Act) and have such knowledge and experience in
financial and business matters as to be capable of evaluating the
merits and risks of our investment in the Securities, and we and
any accounts for which we are acting are each able to bear the
economic risk of our or its investment.
5. We are acquiring the Securities purchased by us for our
own account or for one or more accounts (each of which is an
institutional "accredited investor") as to each of which we
exercise sole investment discretion.
You and the Company are entitled to rely upon this letter and
are irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official
inquiry with respect to the matters covered hereby.
Very truly yours,
[Name of Transferee]
By:
----------------------------
Authorized Signature