ICG SERVICES, INC.,
as Issuer
and
NORWEST BANK COLORADO, NATIONAL ASSOCIATION,
as Trustee
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Indenture
Dated as of February 12, 1998
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10% Senior Discount Notes due 2008
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CROSS-REFERENCE TABLE
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TIA Sections Indenture Sections
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S.310(a)(1) . . . . . . . . . . . . . . 7.10
(a)(2) . . . . . . . . . . . . . . 7.10
(b) . . . . . . . . . . . . . . . 7.08
S.313(c) . . . . . . . . . . . . . . . 7.06; 10.02
S.314(a) . . . . . . . . . . . . . . . 4.18; 10.02
(a)(4) . . . . . . . . . . . . . . 4.17; 10.02
(c)(1) . . . . . . . . . . . . . . 10.03
(c)(2) . . . . . . . . . . . . . . 10.03
(e) . . . . . . . . . . . . . . . 10.04
S.315(b) . . . . . . . . . . . . . . . 7.05; 10.02
S.316(a)(1)(A) . . . . . . . . . . . . 6.05
(a)(1)(B) . . . . . . . . . . . . 6.04
(b) . . . . . . . . . . . . . . . 6.07
S.317(a)(1) . . . . . . . . . . . . . . 6.08
(a)(2) . . . . . . . . . . . . . . 6.09
S.318(a) . . . . . . . . . . . . . . . 10.01
(c) . . . . . . . . . . . . . . . 10.01
Note: The Cross-Reference Table shall not for any purpose be
deemed to be a part of the Indenture.
TABLE OF CONTENTS
Page
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 . . . . . . . . . . . 25
SECTION 1.03. Rules of Construction . . . . . . . . . . . . 25
ARTICLE TWO
THE NOTES
SECTION 2.01. Form and Dating . . . . . . . . . . . . . . . 26
SECTION 2.02. Restrictive Legends . . . . . . . . . . . . . 27
SECTION 2.03. Execution, Authentication and Denominations . 29
SECTION 2.04. Registrar and Paying Agent . . . . . . . . . . 30
SECTION 2.05. Paying Agent to Hold Money in Trust . . . . . 31
SECTION 2.06. Transfer and Exchange . . . . . . . . . . . . 31
SECTION 2.07. Book-Entry Provisions for Global Notes . . . . 32
SECTION 2.08. Special Transfer Provisions . . . . . . . . . 34
SECTION 2.09. Replacement Notes . . . . . . . . . . . . . . 37
SECTION 2.10. Outstanding Notes . . . . . . . . . . . . . . 38
SECTION 2.11. Temporary Notes . . . . . . . . . . . . . . . 38
SECTION 2.12. Cancellation . . . . . . . . . . . . . . . . . 39
SECTION 2.13. CUSIP Numbers . . . . . . . . . . . . . . . . 39
SECTION 2.14. Defaulted Interest . . . . . . . . . . . . . . 39
SECTION 2.15. Issuance of Additional Notes . . . . . . . . . 39
ARTICLE THREE
REDEMPTION
SECTION 3.01. Right of Redemption . . . . . . . . . . . . . 40
SECTION 3.02. Notices to Trustee . . . . . . . . . . . . . . 40
SECTION 3.03. Selection of Notes to Be Redeemed . . . . . . 40
SECTION 3.04. Notice of Redemption . . . . . . . . . . . . . 41
SECTION 3.05. Effect of Notice of Redemption . . . . . . . . 42
SECTION 3.06. Deposit of Redemption Price . . . . . . . . . 42
SECTION 3.07. Payment of Notes Called for Redemption . . . . 42
SECTION 3.08. Notes Redeemed in Part . . . . . . . . . . . . 43
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Note: The Table of Contents shall not for any purposes be deemed
to be a part of the Indenture.
ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Notes . . . . . . . . . . . . . . . 43
SECTION 4.02. Maintenance of Office or Agency . . . . . . . 43
SECTION 4.03. Limitation on Indebtedness . . . . . . . . . . 44
SECTION 4.04. Limitation on Restricted Payments . . . . . . 47
SECTION 4.05. Limitation on Dividend and Other
Payment Restrictions Affecting
Restricted Subsidiaries . . . . . . . . . 50
SECTION 4.06. Limitation on the Issuance and Sale of
Capital Stock of Restricted Subsidiaries . 52
SECTION 4.07. Limitation on Issuances of Guarantees by
Restricted Subsidiaries . . . . . . . . . 52
SECTION 4.08. Limitation on Transactions with Shareholders
and Affiliates . . . . . . . . . . . . . . 53
SECTION 4.09. Limitation on Liens . . . . . . . . . . . . . 54
SECTION 4.10. Limitation on Sale-Leaseback Transactions . . 54
SECTION 4.11. Limitation on Asset Sales . . . . . . . . . . 55
SECTION 4.12. Repurchase of Notes upon a Change of Control . 57
SECTION 4.13. Existence . . . . . . . . . . . . . . . . . . 57
SECTION 4.14. Payment of Taxes and Other Claims . . . . . . 57
SECTION 4.15. Maintenance of Properties and Insurance . . . 57
SECTION 4.16. Notice of Defaults . . . . . . . . . . . . . . 58
SECTION 4.17. Compliance Certificates . . . . . . . . . . . 58
SECTION 4.18. Commission Reports and Reports to Holders . . 59
SECTION 4.19. Waiver of Stay, Extension or Usury Laws . . . 59
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. When Company May Merge, Etc. . . . . . . . . . 60
SECTION 5.02. Successor Substituted . . . . . . . . . . . . 61
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default . . . . . . . . . . . . . . 61
SECTION 6.02. Acceleration . . . . . . . . . . . . . . . . . 62
SECTION 6.03. Other Remedies . . . . . . . . . . . . . . . . 63
SECTION 6.04. Waiver of Past Defaults . . . . . . . . . . . 64
SECTION 6.05. Control by Majority . . . . . . . . . . . . . 64
SECTION 6.06. Limitation on Suits . . . . . . . . . . . . . 64
SECTION 6.07. Rights of Holders to Receive Payment . . . . . 65
SECTION 6.08. Collection Suit by Trustee . . . . . . . . . . 65
SECTION 6.09. Trustee May File Proofs of Claim . . . . . . . 65
SECTION 6.10. Priorities . . . . . . . . . . . . . . . . . . 66
SECTION 6.11. Undertaking for Costs . . . . . . . . . . . . 66
SECTION 6.12. Restoration of Rights and Remedies . . . . . . 66
SECTION 6.13. Rights and Remedies Cumulative . . . . . . . . 67
SECTION 6.14. Delay or Omission Not Waiver . . . . . . . . . 67
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. General . . . . . . . . . . . . . . . . . . . 67
SECTION 7.02. Certain Rights of Trustee . . . . . . . . . . 67
SECTION 7.03. Individual Rights of Trustee . . . . . . . . . 68
SECTION 7.04. Trustee's Disclaimer . . . . . . . . . . . . . 69
SECTION 7.05. Notice of Default . . . . . . . . . . . . . . 69
SECTION 7.06. Reports by Trustee to Holders . . . . . . . . 69
SECTION 7.07. Compensation and Indemnity . . . . . . . . . . 69
SECTION 7.08. Replacement of Trustee . . . . . . . . . . . . 70
SECTION 7.09. Successor Trustee by Merger, Etc. . . . . . . 71
SECTION 7.10. Eligibility . . . . . . . . . . . . . . . . . 71
SECTION 7.11. Money Held in Trust . . . . . . . . . . . . . 71
SECTION 7.12. Withholding Taxes . . . . . . . . . . . . . . 71
ARTICLE EIGHT
DISCHARGE OF INDENTURE
SECTION 8.01. Termination of the Company's Obligations . . . 72
SECTION 8.02. Defeasance and Discharge of Indenture . . . . 73
SECTION 8.03. Defeasance of Certain Obligations . . . . . . 74
SECTION 8.04. Application of Trust Money . . . . . . . . . . 75
SECTION 8.05. Repayment to Company . . . . . . . . . . . . . 75
SECTION 8.06. Reinstatement . . . . . . . . . . . . . . . . 76
SECTION 8.07. Defeasance and Certain Other
Events of Default . . . . . . . . . . . . 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 Notes . . . . . . . 78
SECTION 9.05. Trustee to Sign Amendments, Etc. . . . . . . . 79
SECTION 9.06. Conformity with Trust Indenture Act . . . . . 79
ARTICLE TEN
MISCELLANEOUS
SECTION 10.01. Trust Indenture Act of 1939 . . . . . . . . . 79
SECTION 10.02. Notices . . . . . . . . . . . . . . . . . . . 79
SECTION 10.03. Certificate and Opinion As to
Conditions Precedent . . . . . . . . . . . 80
SECTION 10.04. Statements Required in Certificate
or Opinion . . . . . . . . . . . . . . . . 81
SECTION 10.05. Rules by Trustee, Paying Agent
or Registrar . . . . . . . . . . . . . . . 81
SECTION 10.06. Payment Date Other Than a Business Day . . . 81
SECTION 10.07. Governing Law; Submission to Jurisdiction . . 81
SECTION 10.08. No Adverse Interpretation of
Other Agreements . . . . . . . . . . . . . 81
SECTION 10.09. No Recourse Against Others . . . . . . . . . 82
SECTION 10.10. Successors . . . . . . . . . . . . . . . . . 82
SECTION 10.11. Duplicate Originals . . . . . . . . . . . . . 82
SECTION 10.12. Separability . . . . . . . . . . . . . . . . 82
SECTION 10.13. Table of Contents, Headings, Etc. . . . . . . 82
EXHIBIT A Form of Note . . . . . . . . . . . . . . . . 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
INDENTURE, dated as of February 12, 1998, between ICG
SERVICES INC., a Delaware corporation (the "Company"), and
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NORWEST BANK COLORADO, NATIONAL ASSOCIATION (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 issuance from time
to time of 10% Senior Discount Notes due 2008 (the "Notes")
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issuable as provided in this Indenture. Pursuant to the terms of
a Placement Agreement dated February 9, 1998 (the "Placement
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Agreement") among the Company, NETCOM On-Line Communication
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Services, Inc. and Morgan Stanley & Co. Incorporated, the Company
has agreed to issue and sell $490,000,000 aggregate principal
amount at maturity of the Notes. All things necessary to make
this Indenture a valid agreement of the Company, in accordance
with its terms, have been done, and the Company has done all
things necessary to make the Notes, when executed by the Company
and authenticated and delivered by the Trustee hereunder and duly
issued by the Company, the valid obligations of the Company as
hereinafter provided.
This Indenture is subject to, and shall be 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 Notes 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
calculated pursuant to (i), (ii), (iii) or (iv) for each $1,000
principal amount at maturity of Notes:
(i) if the Specified Date occurs on one of the
following dates (each a "Semi-Annual Accrual Date"), the
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Accreted Value will equal the amount set forth below for
such Semi-Annual Accrual Date:
SEMI-ANNUAL ACCRETED
ACCRUAL DATE VALUE
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August 15, 1998 $ 644.60
February 15, 1999 $ 676.83
August 15, 1999 $ 710.68
February 15, 2000 $ 746.21
August 15, 2000 $ 783.52
February 15, 2001 $ 822.70
August 15, 2001 $ 863.83
February 15, 2002 $ 907.02
August 15, 2002 $ 952.38
February 15, 2003 $ 1,000.00
(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
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by (2) a fraction, the numerator of which is the number of
days from the issue date of the Notes to the Specified Date,
using a 360-day year of twelve 30-day months, and the
denominator of which is the number of days from the Closing
Date 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" means Indebtedness of a Person
existing at the time such Person becomes a Restricted Subsidiary
or assumed in connection with an Asset Acquisition by a
Restricted Subsidiary and not Incurred in connection with, or in
anticipation of, such Person becoming a Restricted Subsidiary or
such Asset Acquisition.
"Adjusted Consolidated Net Income" means, for any period,
the aggregate net income (or loss) of the Company 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 (or loss) of any Person that is not a
Restricted Subsidiary (or is an Unrestricted Subsidiary), except
to the extent of the amount of dividends or other distributions
actually paid to the Company or any of its Restricted
Subsidiaries by such Person or an 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 hereof (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 Company or any of its Restricted
Subsidiaries or all or substantially all of the property and
assets of such Person are acquired by the Company 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 (except to the extent
such restriction has been legally waived); (iv) any gains or
losses (on an after-tax basis) attributable to Asset Sales or the
termination of discontinued operations; (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
Company or any Restricted Subsidiary owned by Persons other than
the Company and any of its Restricted Subsidiaries; (vi) all
extraordinary gains and extraordinary losses; and (vii) at the
irrevocable election of the Company for each occurrence, any net
after-tax income (loss) from discontinued operations; provided
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that for purposes of any subsequent Investment in the entity
conducting such discontinued operations under Section 4.04, such
entity shall be treated as an Unrestricted Subsidiary until such
discontinued operations have actually been disposed of.
"Adjusted Consolidated Net Tangible Assets" means the total
amount of assets of the Company 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 Company 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 recent quarterly or annual consolidated balance sheet
of the Company and its Restricted Subsidiaries, prepared in
conformity with GAAP and filed with the Commission or provided to
the Trustee pursuant to Section 4.18 hereof.
"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 Company
or any of its Restricted Subsidiaries in any other Person
pursuant to which such Person shall become a Restricted
Subsidiary or shall be merged into or consolidated with the
Company or any of its Restricted Subsidiaries or (ii) an
acquisition by the Company or any of its Restricted Subsidiaries
of the property and assets of any Person other than the Company
or any of its Restricted Subsidiaries that constitute
substantially all of a division or line of business of such
Person.
"Asset Sale" means any sale, transfer or other disposition
(including by way of merger, consolidation or sale-leaseback
transaction) in one transaction or a series of related
transactions by the Company or any of its Restricted Subsidiaries
to any Person other than the Company 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
Company or any of its Restricted Subsidiaries or (iii) any other
property and assets (other than the Capital Stock or other
Investment in an Unrestricted Subsidiary) of the Company or any
of its Restricted Subsidiaries outside the ordinary course of
business of the Company or such Restricted Subsidiary and, in
each case, that is not governed by the provisions of Article
Five; provided that "Asset Sale" shall not include (a) sales or
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other dispositions of inventory, receivables and other current
assets, (b) sales or other dispositions of assets for
consideration at least equal to the fair market value of the
assets sold or disposed of, to the extent that the consideration
received would constitute property or assets of the kind
described in clause (B) of the Section 4.11 hereof, (c) a
disposition of cash or Temporary Cash Investments, (d) any
Restricted Payment that is permitted to be made, and is made,
under Section 4.04, (e) sales or other dispositions of assets
with a fair market value (as certified in an Officers'
Certificate) not in excess of $2.0 million (provided that any
series of related sales or dispositions in excess of $2.0 million
shall be considered "Asset Sales"), (f) the lease, license,
transfer of rights-of-use, assignment of a lease, license,
transfer of rights-of-use or sublease or sublicense of any real
or personal property in the ordinary course of business, (g)
foreclosures on assets, (h) substantially simultaneous exchange
by the Company or any Restricted Subsidiary of property or
equipment for other property or equipment; provided that the
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property or equipment received by the Company or such Restricted
Subsidiary has, at least substantially equal market value to the
Company or such Restricted Subsidiary, (i) sales or other
dispositions by the Company or any Restricted Subsidiary, from
time to time, of up to 100% of the Southwest Communications
Business to Central and South West Corporation or its affiliates
or CSW/ICG ChoiceCom, L.P. and (j) transfer or other disposition
by the Company or any Restricted Subsidiary of Capital Stock of
any Restricted Subsidiary or an operating unit or business of the
Company or any Restricted Subsidiary in exchange for an ownership
interest in a joint venture whose primary business is related,
ancillary or complementary to (A) the businesses of the Company
and its Restricted Subsidiaries at the time of determination or
(B) the Telecommunications Business; provided that the fair
--------
market value of such ownership interest is at least equal to the
fair market value of such Capital Stock or operating unit or
business transferred or disposed of (as determined by the Board
of Directors, where good faith determination shall be conclusive
and evidenced by a board resolution); and provided further that
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the assets or properties so transferred or disposed of pursuant
to this clause (j) do not exceed 20% of Adjusted Consolidated Net
Tangible Assets at the time of such transfer or disposition.
"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 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 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 outstanding on the Closing Date or issued
thereafter, including, without limitation, all Common Stock,
Preferred Stock, partnership or membership interests and any
other right to receive a share of the profits and losses of, or
distributions of assets of, the issuing Person.
"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.
"Capitalized Lease Obligations" means the amount of the
liability in respect of a Capitalized Lease that would at such
time be required to be capitalized and reflected as a liability
on balance sheet prepared in accordance with GAAP.
"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 (A) more than 40% of the
total voting power of the Voting Stock of the Company on a fully
diluted basis and (B) Voting Stock of the Company having a
greater total voting power than the Voting Stock of the Company
(on a fully diluted basis) beneficially owned by ICG or (ii)
individuals who on the Closing Date constitute the Board of
Directors (together with any new directors whose election by the
Board of Directors or whose nomination by the Board of Directors
for election by the Company'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.
"Closing Date" means the date on which the Notes 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 stock, whether now outstanding or issued after
the date of this Indenture, including, without limitation, all
series and classes of such common stock.
"Company" means the party named as such in the first
paragraph of this Indenture until a successor replaces it
pursuant to the applicable provisions 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 of the Board, the
Vice Chairman of the Board, its President or a Vice President and
(ii) by its Chief Financial Officer, Treasurer, an Assistant
Treasurer, its Secretary or an Assistant Secretary and delivered
to the Trustee; provided, however, that such written request or
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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, Adjusted
Consolidated Net Income for such period plus, to the extent such
amount was deducted in calculating such Adjusted Consolidated Net
Income, (i) Consolidated Interest Expense, (ii) income taxes
(other than income taxes (either positive or negative)
attributable to extraordinary and non-recurring gains or losses
or sales of assets), (iii) depreciation expense, (iv)
amortization expense and (v) 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 (or, in the case of a loss, decreasing) Adjusted
Consolidated Net Income, determined, with respect to clauses
(ii), (iii) and (iv), on a consolidated basis for the Company 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 percentage ownership interest in the income of such
Restricted Subsidiary not owned on the last day of such period by
the Company or any of its Restricted Subsidiaries.
"Consolidated Interest Expense" means, for any period, the
aggregate amount (without duplication) of interest in respect of
Indebtedness (including, without limitation, 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 Company or any
of its Restricted Subsidiaries) and the interest component of
Capitalized Lease Obligations paid, accrued or scheduled to be
paid or to be accrued by the Company and its Restricted
Subsidiaries during such period; excluding, however, (i) any
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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 Notes, all as
determined on a consolidated basis (without taking into account
Unrestricted Subsidiaries) in conformity with GAAP.
"Consolidated Leverage Ratio" means, on any Transaction
Date, the ratio of (i) the aggregate amount of Indebtedness of
the Company and its Restricted Subsidiaries on a consolidated
basis outstanding on such Transaction Date to (ii) the aggregate
amount of Consolidated EBITDA for the then most recent four
fiscal quarters for which financial statements of the Company
have been filed with the Commission or provided to the Trustee
pursuant to Section 4.18 hereof (such four fiscal quarter period
being the "Four Quarter Period"); provided that, in making the
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foregoing calculation, pro forma effect shall be given to the
following events which occur from the beginning of the Four
Quarter Period through the Transaction Date (the "Reference
---------
Period"): (i) the Incurrence of the Indebtedness with respect to
------
which the computation is being made and (if applicable) the
application of the net proceeds therefrom, including to refinance
other Indebtedness, as if such Indebtedness was incurred, and the
application of such proceeds occurred, at the beginning of the
Four Quarter Period; (ii) the Incurrence, repayment or retirement
of any other Indebtedness by the Company and its Restricted
Subsidiaries since the first day of the Four Quarter Period as if
such Indebtedness was incurred, repaid or retired at the
beginning of the Four Quarter Period; (iii) in the case of
Acquired Indebtedness, the related acquisition, as if such
acquisition occurred at the beginning of the Four Quarter Period;
(iv) any acquisition or disposition by the Company and its
Restricted Subsidiaries of any company or any business or any
assets out of the ordinary course of business, whether by merger,
stock purchase or sale or asset purchase or sale or any related
repayment of Indebtedness, in each case since the first day of
the Four Quarter Period, assuming such acquisition or disposition
had been consummated on the first day of the Four Quarter Period
and after giving pro forma effect to net cost savings that the
Company reasonably believes in good faith could have been
achieved during the Four Quarter Period as a result of such
acquisition or disposition (provided that both (A) such cost
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savings were identified and quantified in an Officers'
Certificate delivered to the Trustee at the time of the
consummation of the acquisition or disposition and (B) with
respect to each acquisition or disposition completed prior to the
90th day preceding such date of determination, actions were
commenced or initiated by the Company within 90 days of such
acquisition or disposition to effect such cost savings identified
in such Officers' Certificate and with respect to any other
acquisition or disposition, such Officers' Certificate sets forth
the specific steps to be taken within the 90 days after such
acquisition or disposition to accomplish such cost savings); and
provided further that (x) in making such computation, the
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Consolidated Interest Expense attributable to interest on any
Indebtedness computed on a pro forma basis and (A) bearing a
floating interest rate shall be computed as if the rate in effect
on the date of computation had been the applicable rate for the
entire period and (B) which was not outstanding during the period
for which the computation is being made but which bears, at the
option of the Company, a fixed or floating rate of interest shall
be computed by applying, at the option of the Company, either the
fixed or floating rate, and (y) in making such computation, the
Consolidated Interest Expense of the Company attributable to
interest on any Indebtedness under a revolving credit facility
computed on a pro forma basis shall be computed based upon the
pro forma average daily balance of such Indebtedness during the
applicable period; and (v) the occurrence of any of the events
described in clauses (i)-(iv) above by any Person that has become
a Restricted Subsidiary or has been merged with or into the
Company or any Restricted Subsidiary during such Reference
Period.
"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 Company 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 Disqualified
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 Company 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.
"Default" means any event that is, or after notice or
passage of time or both would be, an Event of Default.
"Depository" shall mean The Depository Trust Company, its
nominees, and their respective successors.
"Disqualified 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
Notes, (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 Notes 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 Notes; provided that any Capital Stock that would
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not constitute Disqualified Stock but for provisions thereof
giving holders thereof the right to require such Person to
repurchase or redeem such Capital Stock (or the security for
which such Capital Stock is convertible into or exchangeable for)
upon the occurrence of an "asset sale" or "change of control"
occurring prior to the Stated Maturity of the Notes shall not
constitute Disqualified Stock if the "asset sale" or "change of
control" provisions applicable to such Capital Stock (or the
security for which such Capital Stock is convertible into or
exchangeable for) are no more favorable to the holders of such
Capital Stock (or the security for which such Capital Stock is
convertible into or exchangeable for) than the provisions
contained in Sections 4.11 and 4.12 hereof and such Capital Stock
(or the security for which such Capital Stock is convertible into
or exchangeable for) specifically provides that such Person will
not repurchase or redeem any such stock pursuant to such
provision prior to the Company's repurchase of such Notes as are
required to be repurchased pursuant to Sections 4.11 and 4.12
hereof.
"Equity Offering" means any public or private sale of
Capital Stock of the Company (excluding Disqualified Stock),
other than public offerings with respect to the Company's Common
Stock registered on Form S-8.
"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 Notes" means any notes of the Company containing
terms identical to the Notes (except that such Exchange Notes (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 Notes pursuant to the Registration Rights Agreement and
this Indenture.
"Exchange Offer" means Exchange Offer as defined in the
Registration Rights Agreement.
"fair market value" means the price that would be paid in an
arm's-length transaction between an informed and willing seller
under no compulsion to sell and an informed and willing buyer
under no compulsion to buy; fair market value may be determined
in good faith by the Board of Directors of the Company, whose
determination shall be conclusive if evidenced by a Board
Resolution.
"GAAP" means generally accepted accounting principles in the
United States of America as in effect as of the Closing Date,
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 or referred to in the 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 the Indenture shall be made without giving effect
to (i) the amortization of any expenses incurred in connection
with the offering of the Notes and (ii) except as otherwise
provided, the amortization of any amounts required or permitted
by Accounting Principles Board Opinion Nos. 16 and 17.
"Global Notes" has the meaning provided in Section 2.01.
"Guarantee" means any obligation, contingent or otherwise,
of any Person directly or indirectly guaranteeing any
Indebtedness 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 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
(unless such purchase arrangements or such obligations are on
arm's length terms and are entered into in the ordinary course of
business), 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 of the payment
thereof or to protect such obligee against loss in respect
thereof (in whole or in part); provided that the term "Guarantee"
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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.
"ICG" means ICG Communications, Inc., a Delaware
corporation.
"ICG Common Stock" means common stock, par value $.01 per
share, of ICG.
"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 Acquired Indebtedness; provided that neither the
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accrual of interest nor the accretion of original issue discount
shall be considered an Incurrence of Indebtedness.
"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, but excluding
trade letters of credit), (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 and accrued current liabilities arising in the
ordinary course of business, (v) all Capitalized Lease
Obligations of such Person, (vi) all Indebtedness referred to in
clauses (i) through (v) hereof 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
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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 (or, in the case of a revolving credit or
other similar facility, the total amount of principal or interest
outstanding on the date of determination) 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 of the types described
above, provided (A) that the amount outstanding at any time of
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any Indebtedness issued with original issue discount is the
original issue price of such Indebtedness, (B) that money
borrowed and set aside at the time of the Incurrence of any
Indebtedness in order to refund the payment of the interest on
such Indebtedness shall not be deemed to be "Indebtedness" and
(C) that Indebtedness shall not include any liability for
federal, state, local or other taxes.
"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) under the Securities Act.
"Interest Payment Date" means each semiannual interest
payment date on February 15 and August 15 of each year,
commencing August 15, 2003.
"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, option or future contract or other similar agreement
or arrangement.
"Internet Service Business" means any business operating an
internet connectivity or internet enhancement service as it
exists from time to time, including, without limitation, dial-up
or dedicated internet service, web hosting or collocation
services, security solutions, the provision and development of
software in connection therewith, configuration services,
electronic commerce, intranet solutions, data backup and
restoral, business, content and collaboration, communications
tools or network equipment products or services.
"Investment" means, with respect to any Person, all
investments by such Person in other Persons in the form of any
direct or indirect advance, loan or other extension of credit
(including, without limitation, by way of Guarantee or similar
arrangement; but excluding installment sales, capital leasing
arrangements and financings for and advances to customers, in
each case in the ordinary course of business that are, in
conformity with GAAP, recorded as assets on the balance sheet of
the Company or its Restricted Subsidiaries and commissions,
travel and similar advances to officers and employees made in the
ordinary course of business) 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
other Person and shall include (i) the designation of a
Restricted Subsidiary as an Unrestricted Subsidiary and (ii) the
fair market value of the Capital Stock (or any other Investment),
held by the Company or any of its Restricted Subsidiaries, of (or
in) any Person that has ceased to be a Restricted Subsidiary,
including without limitation, by reason of any transaction
permitted by clause (iii) of the Section 4.06 hereof; provided
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that the fair market value of the Investment remaining in any
Person that has ceased to be a Restricted Subsidiary shall not
exceed the aggregate amount of Investments previously made in
such Person valued at the time such Investments were made less
the net reduction of such Investments; and provided further that
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any disposition, sale, lease, transfer, license, transfer of
rights-of-use of, communications equipment, software and capacity
and/or provision of services, by the Company or any Restricted
Subsidiary to ICG or its subsidiaries for fair market value (if,
at the time of such disposition, sale, lease or transfer, the
Company or such Restricted Subsidiary is a Subsidiary of ICG)
will not be deemed to be an Investment. For purposes of the
definition of "Unrestricted Subsidiary" and Section 4.04 hereof,
(i) "Investment" shall include the fair market value of the
assets (net of liabilities (other than liabilities to the Company
or any of its Restricted Subsidiaries)) of any Restricted
Subsidiary at the time that such Restricted Subsidiary is
designated an Unrestricted Subsidiary, (ii) the fair market value
of the assets (net of liabilities (other than liabilities to the
Company or any of its Restricted Subsidiaries)) of any
Unrestricted Subsidiary at the time that such Unrestricted
Subsidiary is designated a Restricted Subsidiary shall be
considered a reduction in outstanding Investments and (iii) any
property transferred to or from an Unrestricted Subsidiary shall
be valued at its fair market value at the time of such transfer.
"Investment Grade Securities" means (i) securities issued or
directly and fully guaranteed or insured by the United States
government or any agency or instrumentality thereof (other than
cash equivalents), (ii) debt securities or debt instruments with
a rating of BBB+ or higher by S&P or Baa1 or higher by Moody's or
the equivalent of such rating by such rating organization, or, if
no rating of S&P or Moody's then exists, the equivalent of such
rating by any other nationally recognized securities rating
agency, but excluding any debt securities or instruments
constituting loans or advances among the Company and its
Subsidiaries, and (iii) investment in any fund that invests
exclusively in investments of the type described in clauses (i)
and (ii) which fund may also hold cash pending investment and/or
distribution.
"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 or any agreement to give
any security interest).
"Moody's" means Moody's Investors Service, Inc. 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 Company or any
Restricted Subsidiary) and proceeds from the conversion of other
property received when converted to cash or cash equivalents, net
of (i) brokerage commissions and other commissions, fees and
expenses (including fees and expenses of counsel, accountants and
investment bankers) related to such Asset Sale and any relocation
expenses incurred as a result thereof, (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 Company 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 Company or any Restricted Subsidiary 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 Company or any
Restricted Subsidiary) 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.
"Note Amount" has the meaning provided in Section 4.11
hereof.
"Note Register" has the meaning provided in Section 2.04.
"Notes" means any of the notes, 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 "Notes" shall include any Exchange Notes to
be issued and exchanged for any Notes pursuant to the
Registration Rights Agreement and this Indenture and, for
purposes of this Indenture, all Notes and Exchange Notes shall
vote together as one series of Notes under this Indenture.
"Offer to Purchase" means an offer to purchase Notes 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 Notes validly tendered
will be accepted for payment on a pro rata basis; (ii) the
purchase price and the Payment Date; (iii) that any Note 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 Note 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 Note purchased
pursuant to the Offer to Purchase will be required to surrender
the Note, together with the form entitled "Option of the Holder
to Elect Purchase" on the reverse side of the Note 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
Notes delivered for purchase and a statement that such Holder is
withdrawing his election to have such Notes purchased; and (vii)
that Holders whose Notes are being purchased only in part will be
issued new Notes equal in principal amount at maturity to the
unpurchased portion of the Notes surrendered; provided that each
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Note purchased and each new Note issued shall be in a principal
amount of $1,000 or an integral multiple thereof. On the Payment
Date, the Company shall (i) accept for payment on a pro rata
basis Notes 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 Notes or portions thereof so
accepted; and (iii) deliver, or cause to be delivered, to the
Trustee all Notes or portions thereof so accepted together with
an Officers' Certificate specifying the Notes or portions thereof
accepted for payment by the Company. The Paying Agent shall
promptly mail to the Holders of Notes so accepted payment in an
amount equal to the purchase price (or, if the Notes are
represented by one or more permanent global Notes registered in
the name of The Depository Trust Company or its nominee, by such
other method as required thereby), and the Trustee shall promptly
authenticate and mail to such Holders a new Note equal in
principal amount at maturity to any unpurchased portion of the
Note surrendered; provided that each Note purchased and each new
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Note issued shall be in a principal amount at maturity of $1,000
or an integral multiple 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 Notes pursuant to an Offer to Purchase.
"Officer" means, with respect to the Company, (i) the
Chairman of the Board, the Vice Chairman of the Board, the
President, the Chief Executive Officer, the Chief Financial
Officer or a Vice President, and (ii) the Treasurer or any
Assistant Treasurer, or the Secretary or any Assistant Secretary
of the Company.
"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
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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 Certificated Notes" has the meaning provided in
Section 2.01.
"Offshore Global Note" has the meaning provided in Section
2.01.
"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).
"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 of notice is mailed pursuant to an Offer to Purchase.
"Permanent Regulation S Global Notes" means the permanent
global Notes issued in exchange for one or more Temporary
Regulation S Global Notes upon certification that the beneficial
interests in such global Note are owned by either Non-U.S.
Persons or U.S. Persons who purchased such interests pursuant to
an exemption from, or in transactions not subject to, the
registration requirements of the Securities Act.
"Permitted Investment" means (i) an Investment in the
Company or 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 Company or a Restricted
Subsidiary; provided that such Person's primary business is
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related, ancillary or complementary to the businesses of the
Company and its Restricted Subsidiaries on the date of such
Investment; (ii) Temporary Cash Investments and Investment Grade
Securities; (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 and reasonable
advances to sales representatives; (iv) any Investment acquired
by the Company or any of its Restricted Subsidiaries (x) in
exchange for any other Investment or accounts receivable held by
the Company or any such Restricted Subsidiary in connection with
or as a result of a bankruptcy, workout, reorganization or
recapitalization of the issuer of such other Investment or
accounts receivable or (y) as a result of a foreclosure by the
Company or any of its Restricted Subsidiaries with respect to any
secured Investment or other transfer of title with respect to any
secured Investment in default; (v) Guarantees permitted by
Section 4.03 hereof; (vi) loans or advances to employees of the
Company or any Restricted Subsidiary that do not in the aggregate
exceed at any one time outstanding $2.0 million; (vii) Currency
Agreements and Interest Rate Agreements permitted under Section
4.03; (viii) Investments in prepaid expenses, negotiable
instruments held for collection and lease, utility deposits and
workers' compensation, performance and other similar deposits;
(ix) Investments in debt securities or other evidences of
Indebtedness that are issued by companies engaged in the
Telecommunications Business or the Internet Service Business;
provided that when each Investment pursuant to this clause (ix)
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is made, the aggregate amount of Investments outstanding under
this clause (ix) does not exceed $3.0 million; (x) Strategic
Investments and Investments in Permitted Joint Ventures in an
amount not to exceed $30.0 million at any one time outstanding;
(xi) an Investment in any Person the primary business of which is
related, ancillary or complementary to (I) the business of the
Company and its Subsidiaries on the date of such Investments or
(II) the Telecommunications Business in an amount not to exceed
at any time outstanding the sum of (A) $20.0 million plus (B) 10%
of the Company's Consolidated EBITDA, if positive, for the
immediately preceding four fiscal quarters (valued in each case
as provided in the definition of "Investments"); (xii) securities
received in connection with Asset Sales to the extent
constituting non-cash consideration permitted under Section 4.11
hereof; (xiii) stock, obligations or securities received in
satisfaction of judgments, bankruptcies, workouts or settlements;
(xiv) Investments in CSW/ICG ChoiceCom, L.P.; and (xv) any
Investments acquired as capital contribution, including without
limitation, acquisition of shares of ICG Common Stock.
"Permitted Joint Venture" means any Unrestricted Subsidiary
or any other Person in which the Company or a Restricted
Subsidiary owns, directly or indirectly, an ownership interest
(other than a Restricted Subsidiary) and whose primary business
is related, ancillary or complementary to (i) the businesses of
the Company and its Restricted Subsidiaries at the time of
determination or (ii) the Telecommunications Business.
"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 and common law Liens of
landlords and carriers, warehousemen, mechanics, attorneys,
suppliers, materialmen, repairmen or other similar Liens arising
in the ordinary course of business, unexercised rights of set
off, in each case with respect to amounts not yet delinquent or
that are bonded 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, licenses, statutory or regulatory
obligations, bankers' acceptances, surety, performance and appeal
bonds, trade or 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 (including reciprocal
easement agreements), rights-of-way, municipal, building and
zoning ordinances and similar charges, utility agreements,
covenants, reservations, restrictions, encroachments, charges,
encumbrances, title defects or other irregularities that do not
materially interfere with the ordinary course of business of the
Company or any of its Restricted Subsidiaries; (vi) Liens
(including extensions and renewals thereof) upon real or personal
property or other assets or rights acquired after the Closing
Date; provided that (a) such Lien is created solely for the
--------
purpose of securing Trade Payables that the Company reasonably
expects to pay within 180 days or Indebtedness Incurred, in
accordance with Section 4.03, to finance the cost of (including
the cost of design, development, acquisition, construction,
installment, improvements, transportation or integration) or to
acquire the item of property or assets subject thereto
(including, without limitation, acquisition by way of
acquisitions of real property, leasehold improvements, licenses,
rights-of-use, Capitalized Leases and installment sales, and any
refinancings thereof) 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, (b) the principal amount of the Trade
Payables or 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,
subleases, licenses and rights-of-use granted to others and
rights of purchase pursuant to installment sales that do not
materially interfere with the ordinary course of business of the
Company 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 Company 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 or installment sales; (xi) Liens on property of, or on
shares of Capital Stock or Indebtedness of, any Person existing
at the time such Person 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 Company or any Restricted
Subsidiary other than the property or assets acquired; (xii)
Liens in favor of the Company or any Restricted Subsidiary;
(xiii) Liens arising from the rendering of a final judgment or
order against the Company or any Restricted Subsidiary 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 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 solely to protect the
Company or any of its Restricted Subsidiaries from fluctuations
in interest rates, currencies or the price of commodities; (xvii)
Liens arising out of conditional sale, installment sales, title
retention, consignment or similar arrangements for the sale of
goods entered into by the Company or any of its Restricted
Subsidiaries in the ordinary course of business; and (xviii)
Liens on or sales of receivables.
"Person" means an individual, a corporation, a partnership,
a limited liability company, a joint venture, an association, a
trust, an unincorporated organization or any other entity or
organization, including a government or political subdivision or
an agency or instrumentality thereof.
"Preferred Stock" or "preferred stock" means, with respect
to any Person, any and all shares, interests, participation 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 Notes, 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 Notes in the form set forth in Section 2.02(a).
"QIB" means a "qualified institutional buyer" as defined in
Rule 144A.
"Redemption Date", when used with respect to any Note or
part thereof to be redeemed, means the date fixed for such
redemption by or pursuant to the terms of the Notes and this
Indenture.
"Redemption Price", when used with respect to any Note or
part thereof to be redeemed, means the price at which such Note
is to be redeemed pursuant to the terms of the Notes and this
Indenture.
"Registrar" has the meaning provided in Section 2.04.
"Registration" has the meaning provided in Section 4.18.
"Registration Rights Agreement" means the Registration
Rights Agreement, dated February 12, 1998, between the Company
and Morgan Stanley & Co. Incorporated relating to the Notes.
"Registration Statement" means any registration statement of
the Company that covers any of the Exchange Notes, and all
amendments and supplements to any such Registration Statement,
including post-effective amendments, in each case including the
prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Regular Record Date" for the interest payable on any
Interest Payment Date means the February 1 or August 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 Company
other than an Unrestricted Subsidiary.
"Rule 144A" means Rule 144A under the Securities Act.
"S&P" means Standard & Poor's Ratings Services and its
successors.
"Securities Act" means the Securities Act of 1933, as
amended.
"Shelf Registration Statement" means Shelf Registration
Statement as defined in the Registration Rights Agreement.
"Significant Subsidiary" means, at any date of
determination, any Restricted Subsidiary that, together with its
Subsidiaries, (i) for the most recent fiscal year of the Company,
accounted for more than 10% of the consolidated revenues of the
Company 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 Company and its Restricted
Subsidiaries, all as set forth on the most recently available
consolidated financial statements of the Company for such fiscal
year.
"Southwest Communications Business" means the Company's or
any of its Subsidiaries' (A) Internet connectivity or Internet
enhancement service as it exists from time to time in the states
of Texas, Louisiana, Arkansas and Oklahoma, including, without
limitation, dial-up or dedicated Internet service, Web site
hosting or collocation services, security solutions, the
provision and development of software in connection therewith,
configuration services, electronic commerce, intranet solutions,
data backup and restoral, business content and collaboration,
communications tools or network equipment products or services
and (B) development, ownership or operations of one or more
telephone, telecommunications or information systems or the
provision of telephony, telecommunications or information
services (including, without limitation, any voice, video, data
or Internet services) and any related, ancillary or complementary
business in the states of Texas, Louisiana, Arkansas and
Oklahoma.
"Specified Date" means any Redemption Date, any Payment Date
for an Offer to Purchase or any date on which the Notes first
become due and payable after an Event of Default.
"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 Investments" means (A) Investments that the Board
of Directors has determined in good faith will enable the Company
or any of its Restricted Subsidiaries to obtain additional
business that it might not be able to obtain without making such
Investment and (B) Investments in entities the principal function
of which is to perform research and development with respect to
products and services that may be used or useful in the
Telecommunications Business or the Internet Service Business;
provided that the Company or one of its Restricted Subsidiaries
--------
is entitled or otherwise reasonably expected to obtain rights to
such products or services as a result of such Investment.
"Strategic Subordinated Indebtedness" means Indebtedness of
the Company that (i) is expressly made subordinate in right of
payment to the Notes and (ii) provides that no payment of
principal, premium or interest on, or any other payment with
respect to, such Indebtedness may be made prior to the payment in
full of all of the Company's obligations under the Notes.
"Subsidiary" means, with respect to any Person, (i) any
corporation, association, or other business entity (other than a
partnership) of which more than 50% of the total voting power of
shares of Capital Stock entitled (without regard to the
occurrence of any contingency) to vote in the election of
directors, managers or trustees thereof is at the time of
determination owned or controlled, directly or indirectly, by
such Person or one or more of the other Subsidiaries of such
Person or a combination thereof and (ii) any partnership, joint
venture, limited liability company or similar entity of which (x)
more than 50% of the capital accounts, distribution rights, total
equity and voting interests or general or limited partnership
interests, as applicable, are owned or controlled, directly or
indirectly, by such Person or one or more of the other
Subsidiaries of such Person or a combination thereof whether in
the form of membership, general, special or limited partnership
or otherwise and (y) such Person or any Wholly Owned Restricted
Subsidiary of such Person is a general partner or otherwise
controls such entity.
"Telecommunications Business" means the development,
ownership or operation of one or more telephone,
telecommunications or information systems or the provision of
telephony, telecommunications or information services (including,
without limitation, any voice, video, data or Internet services)
and any related, ancillary or complementary business.
"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 or instrumentality
thereof, (ii) deposit accounts, time deposit accounts,
certificates of deposit, eurodollar time deposits, overnight bank
deposits and money market deposits maturing within one year or
less of the date of acquisition thereof issued by 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 of America, and which bank or trust company has
capital, surplus and undivided profits aggregating in excess of
$50 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 clauses (i) and
(ii) above entered into with a bank meeting the qualifications
described in clause (ii) above, (iv) commercial paper, maturing
not more than 90 days after the date of acquisition, issued by a
corporation (other than an Affiliate of the Company) 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 or "A-1" (or higher) according to S&P, (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 S&P or Moody's, and (vi) investment funds
investing 95% of their assets in securities of the type described
in clauses (i) through (v) above.
"Temporary Regulation S Global Note" means the Global Note
bearing the Private Placement Legend in bearer form without
interest coupons, that will be issued in a denomination equal to
the outstanding principal amount of the Notes sold in reliance on
Regulation S and deposited with the Trustee, as custodian for the
Depository.
"TIA" or "Trust Indenture Act" means the Trust Indenture Act
of 1939, as amended (15 U.S. Code SS. 77aaa-77bbb), as in effect
on the date this Indenture was executed, except as provided in
Section 9.06; provided, however, that, in the event the Trust
-------- -------
Indenture Act of 1939 is amended after such date, "TIA" or "Trust
Indenture Act" means, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended.
"Trade Payables" means, with respect to any Person, any
accounts payable or any other indebtedness 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
and required to be paid within one year.
"Transaction Date" means, with respect to the Incurrence of
any Indebtedness by the Company 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.
"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.
"Unrestricted Subsidiary" means (i) any Subsidiary of the
Company 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 (including any newly acquired or newly formed
Subsidiary of the Company) to be an Unrestricted Subsidiary
unless such Subsidiary owns any Capital Stock of, or owns or
holds any Lien on any property of, the Company or any Restricted
Subsidiary; provided that (A) any Guarantee by the Company or any
--------
Restricted Subsidiary of any Indebtedness of the Subsidiary being
so designated shall be deemed an "Incurrence" of such
Indebtedness and an "Investment" by the Company or such
Restricted Subsidiary (or both, if applicable) at the time of
such designation; (B) either (I) the Subsidiary to be so
designated has total assets of $1,000 or less or (II) if such
Subsidiary has assets greater than $1,000, such designation would
be permitted under Section 4.04 and (C) if applicable, the
Incurrence of Indebtedness and the Investment referred to in
clause (A) of this proviso would be permitted under Sections 4.03
and 4.04. The Board of Directors may designate any Unrestricted
Subsidiary to be a Restricted Subsidiary; provided that (i) no
--------
Default or Event of Default shall have occurred and be continuing
at the time of or after giving effect to such designation and
(ii) all Liens and Indebtedness of such Unrestricted Subsidiary
outstanding immediately after such designation would, if Incurred
at such time, have been permitted to be Incurred (and shall be
deemed to have been Incurred) for all purposes of this Indenture.
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.
"U.S. Certificated Notes" has the meaning provided in
Section 2.01.
"U.S. Global Note" 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
Notes, and shall also include depository receipts 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.
"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, the ownership of all of the outstanding Capital Stock of
such Subsidiary (other than any director's qualifying shares or
Investments by foreign nationals mandated by applicable law) by
such Person or one or more Wholly Owned Subsidiaries of such
Person.
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 Notes;
"indenture security holder" means a Holder or a
Noteholder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means
the Trustee; and
"obligor" on the indenture securities means the Company
or any other obligor on the Notes.
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 NOTES
SECTION 2.01. Form and Dating. The Notes and the
---------------
Trustee's certificate of authentication shall be substantially in
the form annexed hereto as Exhibit A. The Notes may have such
appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this 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 Note may be set forth on
the reverse thereof, with an appropriate reference thereto on the
face of the Note. The Company shall approve the form of the
Notes and any notation, legend or endorsement on the Notes. Each
Note shall be dated the date of its authentication.
The terms and provisions contained in the form of the
Notes annexed hereto as Exhibit A shall constitute, and are
hereby expressly made, a part of this Indenture. Each of the
Company and the Trustee, by its execution and delivery of this
Indenture, expressly agrees to the terms and provisions of the
Notes applicable to it and to be bound thereby.
Notes offered and sold in reliance on Rule 144A shall
be issued initially in the form of one or more permanent global
Notes in registered form, substantially in the form set forth in
Exhibit A (the "U.S. Global Note"), deposited with the Trustee,
----------------
as custodian for the Depository, duly executed by the Company and
authenticated by the Trustee as hereinafter provided. The
aggregate principal amount at maturity of a U.S. Global Note may
from time to time be increased or decreased by adjustments made
on the records of the Trustee, as custodian for the Depository or
its nominee, as hereinafter provided.
Notes offered and sold in offshore transactions in
reliance on Regulation S shall be issued initially in the form of
one or more temporary global Notes in registered form
substantially in the form set forth in Exhibit A (the "Temporary
---------
Regulation S Global Note"), deposited on behalf of the purchasers
------------------------
of the Notes represented thereby with the Trustee, as custodian
for the Depository, duly executed by the Company and
authenticated by the Trustee as hereinafter provided. At any
time following March 24, 1998 upon receipt by the Trustee and the
Company of a certificate substantially in the form of Exhibit B
hereto, one or more permanent global Notes in registered form
substantially in the form set forth in Exhibit A (the "Permanent
---------
Regulation S Global Note" and together with the Temporary
------------------------
Regulation S Global Note, the "Offshore Global Note") duly
--------------------
executed by the Company and authenticated by the Trustee as
hereinafter provided shall be deposited with the Trustee, as
custodian for the Depository, which shall reflect on its books
and records the date and a decrease in the principal amount of
the Temporary Regulation S Global Notes in an amount equal to the
principal amount of the beneficial interest in the Temporary
Regulation S Global Notes transferred. The aggregate principal
amount at maturity of an Offshore Global Note may from time to
time be increased or decreased by adjustments made in the records
of the Trustee, as custodian for the Depository or its nominee,
as herein provided.
Notes 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 Notes in
registered form in substantially the form set forth in Exhibit A
(the "U.S. Certificated Notes"). Notes issued pursuant to
-----------------------
Section 2.07 in exchange for interests in the Offshore Global
Note shall be in the form of certificated Notes in registered
form substantially in the form set forth in Exhibit A (the
"Offshore Certificated Notes"). Notes issued pursuant to
---------------------------
Section 2.07 in exchange for interests in the U.S. Global Note
shall be in the form of the U.S. Certificated Note.
The Offshore Certificated Notes and the U.S.
Certificated Notes are sometimes collectively referred to herein
as the "Certificated Notes". The U.S. Global Notes and Offshore
------------------
Global Notes are sometimes collectively herein referred to as the
"Global Notes".
------------
The definitive Notes 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 Notes may be
listed, all as determined by the officers executing such Notes,
as evidenced by their execution of such Notes.
SECTION 2.02. Restrictive Legends. (a) Note Legends.
------------------- ------------
Unless and until a Note is exchanged for an Exchange Note or
otherwise disposed of in connection with an effective
Registration Statement pursuant to the Registration Rights
Agreement, (i) each U.S. Global Note and each U.S. Certificated
Note shall bear the legend, set forth below on the face thereof
and (ii) each Offshore Certificated Note and each Temporary
Regulation S Global Note 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"), OR ANY STATE
SECURITIES LAWS, AND ACCORDINGLY, MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED 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) OR (B) 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") OR (C) 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;
(2) AGREES THAT IT WILL NOT, WITHIN THE TIME PERIOD REFERRED
TO IN RULE 144(k) (TAKING INTO ACCOUNT THE PROVISIONS OF
RULE 144(d) UNDER THE SECURITIES ACT, IF APPLICABLE), RESELL
OR OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO THE COMPANY OR
ANY SUBSIDIARY THEREOF, (B) TO A QUALIFIED INSTITUTIONAL
BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT,
(C) 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 AGGREGATE
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,
(D) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN
COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT,
(E) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY
RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) OR
(F) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT 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.
IF THE PROPOSED TRANSFEREE IS AN INSTITUTIONAL ACCREDITED
INVESTOR, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH
TO EACH OF THE TRUSTEE AND THE COMPANY SUCH CERTIFICATIONS,
LEGAL OPINIONS OR OTHER INFORMATION AS SUCH PERSONS MAY
REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING
MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT. 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.
(b) Global Note Legend. Each Global Note, whether
------------------
or not an Exchange Note, shall also bear the following legend on
the face thereof:
UNLESS THIS GLOBAL 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 NOTE 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 NOTE 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. Subject to Article Four, the aggregate principal
-------------
amount at maturity of Notes (including Exchange Notes) which may
be authenticated and delivered under this Indenture is unlimited.
The Notes shall be executed by two Officers of the Company, by
facsimile or manual signature, in the name and on behalf of the
Company.
If an Officer whose signature is on a Note no longer
holds that office at the time the Trustee or authenticating agent
authenticates the Note, the Note shall be valid nevertheless.
A Note shall not be valid until the Trustee or
authenticating agent manually signs the certificate of
authentication on the Note. The signature shall be conclusive
evidence that the Note has been authenticated under this
Indenture.
At any time and from time to time after the execution
of this Indenture, the Trustee or an authenticating agent shall,
upon receipt of a Company Order, authenticate for original issue
Notes in the aggregate principal amount at maturity specified in
such Company Order; provided that the Trustee shall be entitled
--------
to receive an Officers' Certificate and an Opinion of Counsel of
the Company if it so reasonably requests in connection with such
authentication of Notes. Such Company Order shall specify the
amount of Notes to be authenticated, the date on which the issue
of Notes is to be authenticated and in case of an issuance of
Notes pursuant to Section 2.15, shall certify that such issuance
is in compliance with Article Four.
The Trustee may appoint an authenticating agent to
authenticate Notes. An authenticating agent may authenticate
Notes 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 Notes 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 Notes may be presented
for registration of transfer or for exchange (the "Registrar"),
---------
an office or agency where Notes 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 Notes 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 Notes and of their transfer and exchange (the
"Note 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 Notes 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 Note 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, premium, if any, or interest on any Notes, the
Company shall deposit with the Paying Agent money in immediately
available funds sufficient to pay such principal, premium, if
any, or 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, or interest on the
Notes (whether such money has been paid to it by the Company or
any other obligor on the Notes), and that such Paying Agent shall
promptly notify the Trustee of any default by the Company (or any
other obligor on the Notes) 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 Notes, 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 Notes are
---------------------
issuable only in registered form. A Holder may transfer a Note
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 Note
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 Note is
registered as the owner thereof for all purposes whether or not
the Note 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 Note shall, by acceptance of
such Global Note, agree that transfers of beneficial interests in
such Global Note may be effected only through a book-entry system
maintained by the Depository (or its agent), and that ownership
of a beneficial interest in the Note shall be required to be
reflected in a book entry. When Notes 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 Notes of other authorized denominations (including on
exchange of Notes for Exchange Notes), 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 Notes for Exchange Notes shall occur until a
Registration Statement shall have been declared effective by the
Commission and that any Notes that are exchanged for Exchange
Notes 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 Notes 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 Notes,
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 Note during a period
beginning at the opening of business 15 days before the day of
the mailing of a notice of redemption of Notes 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 Note so selected for redemption
in whole or in part, except the unredeemed portion of any Note
being redeemed in part.
SECTION 2.07. Book-Entry Provisions for Global Notes.
--------------------------------------
(a) Each U.S. Global Note and Offshore Global Note initially
shall (i) be registered in the name of the Depository for such
Global Notes or the nominee of such Depository, (ii) be delivered
to the Trustee as custodian for such Depository and (iii) bear
legends as set forth in Section 2.02.
Members of, or participants in, the Depository ("Agent
-----
Members") shall have no rights under this Indenture with respect
-------
to any Global Note held on their behalf by the Depository, or the
Trustee as its custodian, or under any Global Note, and the
Depository may be treated by the Company, the Trustee and any
agent of the Company or the Trustee as the absolute owner of such
Global Note for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall prevent the Company, the Trustee
or any agent of the Company or the Trustee, from giving effect to
any written certification, proxy or other authorization furnished
by the Depository or impair, as between the Depository and its
Agent Members, the operation of customary practices governing the
exercise of the rights of a beneficial owner of any Note.
(b) Transfers of a Global Note shall be limited to
transfers of such Global Note in whole, but not in part, to the
Depository, its successors or their respective nominees.
Interests of beneficial owners in a Global Note may be
transferred in accordance with the applicable rules and
procedures of the Depository and the provisions of Section 2.08.
In addition, U.S. Certificated Notes or Offshore Certificated
Notes shall be transferred to all beneficial owners in exchange
for their beneficial interests in a U.S. Global Note or an
Offshore Global Note, respectively, if (i) the Depository
notifies the Company that it is unwilling or unable to continue
as Depository for the U.S. Global Notes or the Offshore Global
Notes, 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
Depository.
(c) Any beneficial interest in one of the Global
Notes that is transferred to a Person who takes delivery in the
form of an interest in the other Global Note will, upon transfer,
cease to be an interest in such Global Note and become an
interest in the other Global Note and, accordingly, will
thereafter be subject to all transfer restrictions, if any, and
other procedures applicable to beneficial interests in such other
Global Note 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 Note or Offshore Global Note to
beneficial owners who are required to hold U.S. Certificated
Notes, 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 Note or Offshore Global Note in an amount equal to
the principal amount at maturity of the beneficial interest in
such U.S. Global Note or Offshore Global Note to be transferred,
and the Company shall execute, and the Trustee shall authenticate
and deliver, one or more U.S. Certificated Notes or Offshore
Certificated Notes, as the case may be, of like tenor and amount.
(e) In connection with the transfer of all the U.S.
Global Notes or Offshore Global Notes to beneficial owners
pursuant to paragraph (b) of this Section, the U.S. Global Notes
or Offshore Global Notes, 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 Depository in exchange
for its beneficial interest in the U.S. Global Notes or Offshore
Global Notes, as the case may be, an equal aggregate principal
amount at maturity of U.S. Certificated Notes or Offshore
Certificated Notes, as the case may be, of authorized
denominations.
(f) Any U.S. Certificated Note delivered in exchange
for an interest in a U.S. Global Note pursuant to paragraph (b),
(d) or (e) of this Section shall, except as otherwise provided by
paragraphs (f)(i)(x) and (d) of Section 2.08 hereof, bear the
legend regarding transfer restrictions applicable to the U.S.
Certificated Note set forth in Section 2.02.
(g) Any Offshore Certificated Note delivered in
exchange for an interest in an Offshore Global Note pursuant to
paragraph (b), (d) or (e) of this Section shall, except as
otherwise provided by paragraphs (f)(i)(x) and (d) of Section
2.08 hereof, bear the legend regarding transfer restrictions
applicable to the Offshore Certificated Note set forth in
Section 2.02 hereof.
(h) The registered holder of a Global Note 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 Notes.
(i) QIBs that are beneficial owners of interests in
a Global Note may receive Certificated Notes (which shall bear
the Private Placement Legend if required by Section 2.02) in
accordance with the procedures of the Depository. In connection
with the execution, authentication and delivery of such
Certificated Notes, the Registrar shall reflect on its books and
records a decrease in the principal amount of the relevant Global
Note equal to the principal amount of such Certificated Notes and
the Company shall execute and the Trustee shall authenticate and
deliver one or more Certificated Notes having an equal aggregate
principal amount.
SECTION 2.08. Special Transfer Provisions. Unless and
---------------------------
until a Note is exchanged for an Exchange Note 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. Certificated Note or an interest in a
U.S. Global Note to a QIB (excluding Non-U.S. Persons):
(i) If the Note to be transferred consists
of (x) U.S. Certificated Notes, 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 Note 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 Note
stating, or has otherwise advised the Company and the
Registrar in writing, that it is purchasing the 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 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 Note, the transfer of
such interest may be effected only through the book
entry system maintained by the Depository.
(ii) If the proposed transferee is an Agent
Member, and the Note to be transferred consists of U.S.
Certificated Notes, upon receipt by the Registrar of
the documents referred to in clause (i) and
instructions given in accordance with the Depository'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 Note in an amount equal to the principal
amount at maturity of the U.S. Certificated Notes to be
transferred, and the Trustee shall cancel the
Certificated Note so transferred.
(b) Transfers of Interests in Offshore Global Notes
-----------------------------------------------
or Offshore Certificated Notes to U.S. Persons. The
----------------------------------------------
following provisions shall apply with respect to any
transfer of interests in Offshore Global Notes or Offshore
Certificated Notes to U.S. Persons:
(i) prior to the removal of the Private
Placement Legend from Offshore Global Notes or Offshore
Certificated Notes 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 Note 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 Note to a Non-U.S. Person:
(i) The Registrar shall register any
proposed transfer to any Non-U.S. Person if the Note to
be transferred is a U.S. Certificated Note or an
interest in a U.S. Global Note 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 Note, upon receipt by the Registrar of (x) the
documents required by paragraph (i) and
(y) instructions in accordance with the Depository'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 Note in an amount equal to the principal
amount at maturity of the beneficial interest in the
U.S. Global Note 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 Depository'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 Note in an amount
equal to the principal amount at maturity of the U.S.
Certificated Notes or the U.S. Global Notes, as the
case may be, to be transferred, and the Trustee shall
cancel the Certificated Note, if any, so transferred or
decrease the amount of the U.S. Global Notes.
(d) Private Placement Legend. Upon the registration
------------------------
of transfer, exchange or replacement of Notes not bearing
the Private Placement Legend, the Registrar shall deliver
Notes that do not bear the Private Placement Legend. Upon
the registration of transfer, exchange or replacement of
Notes bearing the Private Placement Legend, the Registrar
shall deliver only Notes that bear the Private Placement
Legend unless either (i) the Private Placement Legend is no
longer required by Section 2.02 or (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.
(e) General. By its acceptance of any Note bearing
-------
the Private Placement Legend, each Holder of such a Note
acknowledges the restrictions on transfer of such Note set
forth in this Indenture and in the Private Placement Legend
and agrees that it will transfer such Note only as provided
in this Indenture. The Registrar shall not register a
transfer of any Note unless such transfer complies with the
restrictions on transfer of such Note set forth in this
Indenture. In connection with any transfer of Notes to an
Institutional Accredited Investor, each Holder agrees by its
acceptance of the Notes 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
Note to any Institutional Accredited Investor which is not a
QIB (excluding Non-U.S. Persons):
(i) The Registrar shall register the
transfer of any Note, whether or not such Note 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 Notes 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
Note, upon receipt by the Registrar and the Company of
(x) the documents, if any, required by paragraph (i)
and (y) instructions given in accordance with the
Depository'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 Note in an amount equal to the
principal amount at maturity of the beneficial interest
in the U.S. Global Note to be transferred, and the
Company shall execute, and the Trustee shall
authenticate and deliver, one or more U.S. Certificated
Notes 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 Notes. If a mutilated Note
-----------------
is surrendered to the Trustee or if the Holder claims that the
Note has been lost, destroyed or wrongfully taken, the Company
shall issue and the Trustee shall authenticate a replacement Note
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 Note is replaced. The Company
may charge such Holder for its expenses and the expenses of the
Trustee in replacing a Note. In case any such mutilated, lost,
destroyed or wrongfully taken Note has become or is about to
become due and payable, the Company in its discretion may pay
such Note instead of issuing a new Note in replacement thereof.
Every replacement Note is an additional obligation of
the Company and shall be entitled to the benefits of this
Indenture.
SECTION 2.10. Outstanding Notes. Notes outstanding at
-----------------
any time are all Notes 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.
If a Note 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 Note 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 or a
redemption date money sufficient to pay all principal, premium,
if any, and interest payable on that date with respect to the
Notes (or portions thereof) to be redeemed or payable on that
date, then on and after that date such Notes cease to be
outstanding and interest on them shall cease to accrue or the
principal of such Notes shall cease to accrete, the case may be.
A Note does not cease to be outstanding because the
Company or one of its Affiliates holds such Note; provided,
--------
however, that, in determining whether the Holders of the
-------
requisite principal amount at maturity of the outstanding Notes
have given any request, demand, authorization, direction, notice,
consent or waiver hereunder, Notes owned by the Company or any
other obligor upon the Notes 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 Notes
which the Trustee knows to be so owned shall be so disregarded.
Notes 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 Notes and that the pledgee is not the Company or
any other obligor upon the Notes or any Affiliate of the Company
or of such other obligor.
SECTION 2.11. Temporary Notes. Until definitive Notes
---------------
are ready for delivery, the Company may prepare and the Trustee
shall authenticate temporary Notes. Temporary Notes shall be
substantially in the form of definitive Notes but may have
insertions, substitutions, omissions and other variations
determined to be appropriate by the Officers executing the
temporary Notes, as evidenced by their execution of such
temporary Notes. If temporary Notes are issued, the Company will
cause definitive Notes to be prepared without unreasonable delay.
After the preparation of definitive Notes, the temporary Notes
shall be exchangeable for definitive Notes upon surrender of the
temporary Notes 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 Notes the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal
amount at maturity of definitive Notes of authorized
denominations. Until so exchanged, the temporary Notes shall be
entitled to the same benefits under this Indenture as definitive
Notes.
SECTION 2.12. Cancellation. The Company at any time
------------
may deliver to the Trustee for cancellation any Notes previously
authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and may deliver to the Trustee
for cancellation any Notes previously authenticated hereunder
which the Company has not issued and sold. The Registrar and the
Paying Agent shall forward to the Trustee any Notes surrendered
to them for registration of transfer, exchange, purchase or
payment. The Trustee shall cancel all Notes surrendered for
registration of transfer, exchange, purchase, payment or
cancellation and shall dispose of them in accordance with its
normal procedure. The Company shall not issue new Notes to
replace Notes it has paid in full or delivered to the Trustee for
cancellation.
SECTION 2.13. CUSIP Numbers. The Company in issuing
-------------
the Notes 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 Notes 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 Notes.
SECTION 2.14. Defaulted Interest. If the Company
------------------
defaults in a payment of interest on the Notes, 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.
SECTION 2.15. Issuance of Additional Notes. The
----------------------------
Company may, subject to Article Four of this Indenture, issue
additional Notes under this Indenture. The Notes issued on the
Closing Date and any additional Notes subsequently issued shall
be treated as a single class for all purposes under this
Indenture.
ARTICLE THREE
REDEMPTION
SECTION 3.01. Right of Redemption. (a) The Notes may
-------------------
be redeemable, at the Company's option, in whole or in part, at
any time or from time to time, on or after February 15, 2003 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 Note Register, at the Redemption
Prices (expressed in percentages of 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), if redeemed during the 12-month period commencing February
15, of the years set forth below:
YEAR REDEMPTION PRICE
---- ----------------
2003 105.0000%
2004 103.3333
2005 101.6667
2006 and thereafter 100.0000
(b) In addition, at any time or from time to time, on
or prior to February 15, 2001, the Company may, at its option,
redeem Notes having an aggregate principal amount at maturity of
up to 35% of the aggregate principal amount at maturity of the
Notes with the proceeds of one or more public or private Equity
Offerings, at a Redemption Price equal to 110.0% of the Accreted
Value thereof on the Redemption Date; provided that at least 65%
--------
of the aggregate principal amount of Notes initially issued
remains outstanding after each such redemption.
SECTION 3.02. Notices to Trustee. If the Company
------------------
elects to redeem Notes pursuant to Section 3.01, it shall notify
the Trustee in writing of the Redemption Date and the principal
amount at maturity of Notes 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 Notes to Be Redeemed. If
---------------------------------
less than all of the Notes are to be redeemed at any time, the
Trustee shall select the Notes to be redeemed in compliance with
the requirements of the principal national securities exchange,
if any, on which the Notes are listed or if the Notes are not
listed on a national securities exchange, on a pro rata basis or
by lot or by such other method as the Trustee in its sole
discretion shall deem to be fair and appropriate; provided that
no Notes of $1,000 in principal amount at maturity or less shall
be redeemed in part.
The Trustee shall make the selection from the Notes
outstanding and not previously called for redemption. Notes 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 Notes that have denominations
larger than $1,000 in principal amount at maturity. Provisions
of this Indenture that apply to Notes called for redemption also
apply to portions of Notes called for redemption. The Trustee
shall notify the Company and the Registrar promptly in writing of
the Notes or portions of Notes to be called for redemption.
SECTION 3.04. Notice of Redemption. With respect to
--------------------
any redemption of Notes 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 Notes are to be redeemed.
The notice shall identify the Notes 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 Notes 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 Notes (or portions thereof)
called for redemption ceases to accrue or Notes called for
redemption cease to accrete in value, as the case may be, 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 Notes to the Paying Agent;
(vi) that, if any Note 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 Note to be redeemed and that, on and after
the Redemption Date, upon surrender of such Note, a new Note
or Notes in principal amount at maturity equal to the
unredeemed portion thereof will be reissued; and
(vii) that, if any Note 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 Notes or as contained in the notice of redemption.
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, Notes called for redemption
become due and payable on the Redemption Date and at the
Redemption Price. Upon surrender of any Notes to the Paying
Agent, such Notes 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
Notes 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 Notes to be redeemed on that date other than
Notes 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 Notes Called for Redemption.
--------------------------------------
If notice of redemption has been given in the manner provided
above, the Notes or portion of Notes 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 Notes 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 Notes), such
Notes shall cease to accrue interest or accrete in value, as the
case may be. Upon surrender of any Note for redemption in
accordance with a notice of redemption, such Note 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. Notes Redeemed in Part. Upon surrender
----------------------
of any Note that is redeemed in part, the Company shall execute
and the Trustee shall authenticate and deliver to the Holder a
new Note equal in principal amount at maturity to the unredeemed
portion of such surrendered Note.
ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Notes. The Company shall pay
----------------
the principal of, premium, if any, and interest on the Notes on
the dates and in the manner provided in the Notes 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 Notes.
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 Notes.
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 Notes 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 Notes 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 10.02 hereof.
The Company may also from time to time designate one or
more other offices or agencies where the Notes 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
--------------------------
Company will not, and will not permit any of its Restricted
Subsidiaries to, Incur any Indebtedness (other than the Notes and
Indebtedness existing on the Closing Date); provided that 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 Consolidated Leverage Ratio would
be greater than zero and less than 6:1.
Notwithstanding the foregoing, the Company and any
Restricted Subsidiary (except as specified below) may Incur each
and all of the following:
(i) Indebtedness of the Company or its Restricted
Subsidiaries outstanding at any time in an aggregate
principal amount not to exceed (A) $200 million of
unsubordinated Indebtedness (including any Indebtedness
under one or more revolving credit or working capital
facilities) and (B) $200 million of subordinated
Indebtedness (and any Guarantees thereof by the Company or
its Restricted Subsidiaries), less any amount of such
Indebtedness permanently repaid as provided under Section
4.11 hereof;
(ii) the Incurrence by the Company of Indebtedness
represented by the Notes;
(iii) Indebtedness in existence on the Closing Date;
(iv) Indebtedness of the Company to a Restricted
Subsidiary and Indebtedness of a Restricted Subsidiary to
the Company or another Restricted Subsidiary; provided that
--------
such Indebtedness is made pursuant to an intercompany note
(which, in the case of Indebtedness owed to the Company,
shall be unsubordinated) and any event which results in any
such Restricted Subsidiary ceasing to be a Restricted
Subsidiary or any subsequent transfer of such Indebtedness
(other than to the Company or another Restricted Subsidiary)
shall be deemed, in each case, to constitute an Incurrence
of such Indebtedness not permitted by this clause (iv);
(v) 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), (iv), (vi) or (viii) 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
Indebtedness that is subordinated in right of payment to the
Notes shall only be permitted under this clause (v) if (A)
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 Notes at least
to the extent that the Indebtedness to be refinanced is
subordinated to the Notes and (B) 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 Company be refinanced by means
of any Indebtedness of any Restricted Subsidiary pursuant to
this clause (v);
(vi) 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 (a) are designed
--------
solely to protect the Company or its Restricted Subsidiaries
against fluctuations in foreign currency exchange rates or
interest rates and (b) do not increase the Indebtedness of
the obligor outstanding at any time (except to the extent
Incurred under another clause hereof) 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 each
case Incurred in connection with the disposition of any
business, assets or Restricted Subsidiary (other than
Guarantees of Indebtedness Incurred by any Person acquiring
all or any portion of such business, assets or Restricted
Subsidiary for the purpose of financing such acquisition),
in a principal amount not to exceed the gross proceeds
actually received by the Company or any Restricted
Subsidiary in connection with such disposition;
(vii) Indebtedness of the Company, to the extent the
net proceeds thereof are promptly (A) used to purchase Notes
tendered in an Offer to Purchase made as a result of a
Change in Control or (B) deposited to defease the Notes as
described below under Article Eight hereof;
(viii) Guarantees of the Notes and Guarantees of
Indebtedness of the Company by any Restricted Subsidiary
provided the Guarantee of such Indebtedness is permitted by
and made in accordance with Section 4.07 hereof and any
Guarantee by the Company of Indebtedness or other
obligations of any of its Restricted Subsidiaries so long as
the incurrence of such Indebtedness Incurred by such
Restricted Subsidiary is permitted under the terms of this
Section 4.03;
(ix) Indebtedness Incurred to finance the cost
(including, without limitation, the cost of design,
development, acquisition, construction, installation,
improvement, transportation or integration) to acquire
equipment, inventory, assets, services and related costs in
connection with the Internet Service Business or the
Telecommunications Business (including, without limitation,
acquisitions by way of acquisitions of real property,
leasehold improvements, licenses, rights-of-use, Capitalized
Leases, installment sales and acquisitions of the Capital
Stock of a Person that becomes a Restricted Subsidiary to
the extent of the fair market value of the equipment,
inventory or network assets so acquired) by the Company or a
Restricted Subsidiary after the Closing Date;
(x) Indebtedness of the Company not to exceed, at
any one time outstanding, the sum (without duplication) of
(A) two times the Net Cash Proceeds received by the Company
from the sale of ICG Common Stock contributed by ICG to the
Company after the Closing Date to a Person that is not a
Subsidiary of the Company (1.6 times the closing price, last
sale price or similar price of such ICG Common Stock at the
time received by the Company to the extent such ICG Common
Stock has not been sold) plus (B) two times cash or cash
equivalents contributed by ICG or its Subsidiaries (other
than the Company and its Subsidiaries) to the Company after
the Closing Date plus (C) 1.6 times the fair market value of
other assets (including, without limitation, Capital Stock)
acquired by the Company or its Restricted Subsidiaries to
the extent that the consideration therefor consists of ICG
Common Stock plus (D) 1.6 times the fair market value of
other assets contributed by ICG or its Subsidiaries (other
than the Company and its Subsidiaries) to the Company after
the Closing Date plus (E) two times the Net Cash Proceeds
received by the Company after the Closing Date from the
issuance and sale of its Capital Stock (other than
Disqualified Stock) to a Person that is not a Subsidiary of
the Company plus (F) 1.6 times the fair market value of
property (other than cash and cash equivalents) received by
the Company after the Closing Date from the sale of its
Capital Stock (other than Disqualified Stock) to a Person
that is not a Subsidiary of the Company, in each case, to
the extent such Net Cash Proceeds, ICG Common Stock, cash or
cash equivalents or such other assets or property have not
been used pursuant to clause (C)(2) of the first paragraph
or clause (iii) or (iv), as the case may be, of the second
paragraph of Section 4.04; provided that such Indebtedness
--------
does not mature prior to the Stated Maturity of the Notes
and has a then current Average Life at least as long as the
Notes;
(xi) Indebtedness Incurred by the Company or any of
its Restricted Subsidiaries constituting reimbursement
obligations with respect to letters of credit in the
ordinary course of business, including, without limitation,
letters of credit in respect of workers' compensation claims
or self insurance, or other Indebtedness with respect to
reimbursement type obligations regarding workers'
compensation claims; provided, however, that upon the
-------- -------
drawing of such letters of credit or the Incurrence of such
Indebtedness, such obligations are reimbursed within 30 days
following such drawing or Incurrence;
(xii) Acquired Indebtedness or Indebtedness of Persons
that are acquired by the Company or any of its Restricted
Subsidiaries or merged into a Restricted Subsidiary in
accordance with the terms of this Indenture; provided that
--------
such Indebtedness is not incurred in contemplation of such
acquisition or merger; and
(xiii) Strategic Subordinated Indebtedness.
(b) Notwithstanding any other provision of this
Section 4.03, the maximum amount of Indebtedness that the Company
or a Restricted Subsidiary may Incur pursuant to this Section
4.03 shall not be deemed to be exceeded, with respect to any
outstanding Indebtedness due solely to the result of fluctuations
in the exchange rates of currencies. Accretion on an instrument
issued at a discount will not be deemed to constitute an
Incurrence of Indebtedness.
(c) For purposes of determining any particular
amount of Indebtedness under this Section 4.03, (1) 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 and (2) any Liens granted
pursuant to the equal and ratable provisions referred to in
Section 4.09 hereof shall not be treated as Indebtedness. 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.
SECTION 4.04. Limitation on Restricted Payments. The
---------------------------------
Company will not, and will not permit any Restricted Subsidiary
to, directly or indirectly, (i) declare or pay any dividend or
make any distribution on or with respect to its Capital Stock
(other than (x) dividends or distributions payable solely in
shares of its Capital Stock (other than Disqualified Stock) or in
options, warrants or other rights to acquire shares of such
Capital Stock and (y) pro rata dividends or distributions on
Common Stock of Restricted Subsidiaries held by minority
stockholders) held by Persons other than the Company or any of
its Restricted Subsidiaries, (ii) purchase, redeem, retire or
otherwise acquire for value any shares of Capital Stock of (A)
the Company or an Unrestricted Subsidiary (including options,
warrants or other rights to acquire such shares of Capital Stock)
held by any Person or (B) a Restricted Subsidiary (including
options, warrants or other rights to acquire such shares of
Capital Stock) held by any Affiliate of the Company (other than a
Wholly Owned Restricted Subsidiary), (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 that is subordinated in
right of payment to the Notes (other than the purchase,
redemption, repurchase or other acquisition of such subordinated
Indebtedness purchased in anticipation of satisfying a sinking
fund obligation, principal installment or final maturity, in each
case due within six months of the date of acquisition) 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) above 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) except with respect to
making any Investments, the Company could not Incur at least
$1.00 of Indebtedness under the first paragraph of Section 4.03
or (C) the aggregate amount of all Restricted Payments (the
amount, 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) made after the Closing Date
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 the amount of
such loss) (determined by excluding income resulting from
transfers of assets by the Company 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
with the Commission or provided to the Trustee pursuant to
Section 4.18 hereof plus (2) 100% of (I) the aggregate Net Cash
Proceeds or fair market value of any Capital Stock and the amount
of cash from any capital contributions to the Company after the
Closing Date from Persons other than Subsidiaries of the Company
(including contributions of ICG Common Stock, cash and cash
equivalents and other assets to the Company by ICG) plus (II) the
aggregate Net Cash Proceeds received by the Company after the
Closing Date from an issuance and sale of its Capital Stock
(other than Disqualified Stock) to a Person who is not a
Subsidiary of the Company, including, without limitation, an
issuance or sale permitted by this Indenture for cash subsequent
to the Closing Date upon the conversion of such Indebtedness into
Capital Stock (other than Disqualified Stock) of the Company, or
from the issuance to a Person who is not a Subsidiary of the
Company of any options, warrants or other rights to acquire
Capital Stock of the Company (in each case, exclusive of any
Disqualified 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 Notes), to the
extent such Net Cash Proceeds, Capital Stock, marketable
securities or amount have not been previously applied pursuant to
clauses (iii) or (iv), as the case may be, of the second
paragraph of this Section 4.04 or used to support the Incurrence
of Indebtedness pursuant to clause (x) of the second paragraph
under Section 4.03 plus (3) amounts received from Investments
(other than 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 Company or any Restricted Subsidiary or from the Net Cash
Proceeds from the sale of any such Investment (except, in each
case, to the extent any such payment or proceeds are 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, in each case, the amount of
Investments previously made by the Company or any Restricted
Subsidiary in such Person or Unrestricted Subsidiary.
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 Notes including
premium, if any, and accrued and unpaid interest, with the
proceeds of, or in exchange for, Indebtedness Incurred under
clause (v) of the second paragraph of part (a) of Section
4.03;
(iii) the making of any principal payment or the
repurchase, redemption, retirement, defeasance or other
acquisition for value of Indebtedness of the Company which
is subordinated in right of payment to the Notes (A) with
cash or cash equivalents contributed by ICG to the Company
after the Closing Date or (B) with, or out of the Net Cash
Proceeds of, ICG Common Stock or other assets (other than
cash or cash equivalents) contributed by ICG to the Company
after the Closing Date, or (C) in exchange for, or out of,
the Net Cash Proceeds of a substantially concurrent offering
of shares of Capital Stock (other than Disqualified Stock)
of the Company (or options, warrants or other rights to
acquire such Capital Stock), to the extent such Net Cash
Proceeds, cash or cash equivalents, ICG Common Stock,
Capital Stock or such other assets have not been used
pursuant to clause (C)(2) of the first paragraph or clause
(iv) of the second paragraph, as the case may be, of this
Section 4.04 or used to support the Incurrence of
Indebtedness pursuant to clause (x) of the second paragraph
under Section 4.03;
(iv) the repurchase, redemption or other acquisition
of Capital Stock of the Company or an Unrestricted
Subsidiary (or options, warrants or other rights to acquire
such Capital Stock) in exchange for, or out of the proceeds
of a substantially concurrent offering of, shares of Capital
Stock (other than Disqualified Stock) of the Company (or
options, warrants or other rights to acquire such Capital
Stock); or
(v) other Restricted Payments in an aggregate amount
not to exceed $10 million;
provided that, except in the case of clauses (i), (ii), (iii) and
--------
(iv), 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 clause (ii) thereof shall be included in calculating
whether the conditions of clause (C) of clause (iv) of the first
paragraph of this Section 4.04 have been met with respect to any
subsequent Restricted Payments.
Any Restricted Payments made other than in cash shall
be valued at fair market value. The amount of any Investment
"outstanding" at any time shall be deemed to be equal to the
amount of such Investment on the date made, less the return of
capital to the Company and its Restricted Subsidiaries with
respect to such Investment by distribution, sale or otherwise (up
to the amount of such Investment on the date made).
SECTION 4.05. Limitation on Dividend and Other Payment
----------------------------------------
Restrictions Affecting Restricted Subsidiaries. The Company 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 Company or any
other Restricted Subsidiary, (ii) pay any Indebtedness owed to
the Company or any other Restricted Subsidiary, (iii) make loans
or advances to the Company or any other Restricted Subsidiary or
(iv) transfer any of its property or assets to the Company or any
other Restricted Subsidiary.
The foregoing provisions shall not restrict any
encumbrances or restrictions:
(i) existing on the Closing Date this Indenture or
any other agreements 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,
rule, regulation or order;
(iii) existing with respect to any Person or the
property or assets of such Person acquired by the Company 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, right-of-
use, 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 Company or any Restricted
Subsidiary not otherwise prohibited by this Indenture, (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 Company or any Restricted Subsidiary in any
manner material to the Company or any Restricted Subsidiary
or (D) purchase money obligations (including, without
limitation, Capitalized Leases and installment sales) for
property acquired in the ordinary course of business that
impose restrictions of the nature discussed in clause (iv)
above on the property so acquired;
(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;
(vi) contained in the terms of any Indebtedness or
any agreement pursuant to which such Indebtedness was issued
if (A) (1) the encumbrances or restrictions apply only in
the event of a payment default or a default with respect to
a financial covenant contained in such Indebtedness or
agreement or (2) the encumbrances or restrictions are
similar in nature and substance to clause (iv) of the first
paragraph of Section 4.04 hereof, as determined by the Board
of Directors in good faith, (B) the encumbrances or
restrictions are not materially more disadvantageous to the
Holders of the Notes than is customary in comparable
financings (as determined by the Company) and (C) the
Company determines that any such encumbrances or
restrictions will not materially affect the Company's
ability to make principal or interest payments on the Notes;
(vii) customary provisions in joint venture agreements
and other similar agreements entered into in the ordinary
course of business; and
(viii) any encumbrances or restrictions of the type
referred to in clauses (i) through (iv) of the first
paragraph of this Section 4.05 imposed by any amendments,
modifications, renewals, restatements, increases,
supplements, refundings, replacements or refinancings of the
contracts referred to in clauses (i) through (vii) above;
provided that such amendments, modifications, restatements,
--------
renewals, increases, supplements, refundings, replacements or
refinancings are, in the good faith judgment of the Company, not
materially more disadvantageous to the Holders than those
contained in the restriction prior to such amendment,
modification, restatement, renewal, increase, supplement,
refunding, replacement or refinancing. Nothing contained in this
Section 4.05 shall prevent the Company or any Restricted
Subsidiary from (1) creating, incurring, assuming or suffering to
exist any Liens otherwise permitted in Section 4.09 hereof or (2)
restricting the sale or other disposition of property or assets
of the Company or any of its Restricted Subsidiaries that secure
Indebtedness of the Company or any of its Restricted
Subsidiaries.
SECTION 4.06. Limitation on the Issuance and Sale of
--------------------------------------
Capital Stock of Restricted Subsidiaries. The Company 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 Company or a Wholly Owned Restricted Subsidiary; (ii)
issuances of director's qualifying shares 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 and any Investment in such Person remaining after
giving effect to such issuance or sale would have been permitted
to be made under Section 4.04 hereof if made on the date of such
issuance or sale; or (iv) issuances or sales of common stock of a
Restricted Subsidiary, provided that the Company or any
--------
Restricted Subsidiary applies an amount equal to the Net Cash
Proceeds thereof in accordance with Section 4.11 hereof.
SECTION 4.07. Limitation on Issuances of Guarantees by
----------------------------------------
Restricted Subsidiaries. The Company will not permit any
-----------------------
Restricted Subsidiary, directly or indirectly, to Guarantee any
Indebtedness of the Company which is pari passu with or
subordinate in right of payment to the Notes ("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 Notes 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 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
existed at the time such Person became a Restricted Subsidiary
and was not Incurred in connection with, or in contemplation of,
such Person becoming a Restricted Subsidiary. If the Guaranteed
Indebtedness is (A) pari passu in right of payment with the
Notes, then the Guarantee of such Guaranteed Indebtedness shall
be pari passu in right of payment with, or subordinated to, the
Subsidiary Guarantee or (B) subordinated in right of payment to
the Notes, then the Guarantee of such Guaranteed Indebtedness
shall be subordinated in right of payment to the Subsidiary
Guarantee at least to the extent that the Guaranteed Indebtedness
is subordinated to the Notes.
Notwithstanding the foregoing, any Subsidiary Guarantee
by a Restricted Subsidiary may 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 Company, 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 Company 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 Affiliate of
the Company or any Restricted Subsidiary, except upon fair and
reasonable terms no less favorable to the Company or such
Restricted Subsidiary than could be obtained, at the time of such
transaction or, if such transaction is pursuant to a written
agreement, 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 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 Company or a Restricted Subsidiary delivers to the
Trustee a written opinion of a nationally recognized
investment banking firm or a nationally recognized firm
having expertise in the specific area which is the subject
of such determination stating that the transaction is fair
to the Company or such Restricted Subsidiary from a
financial point of view;
(ii) any transaction solely between the Company and
any of its Restricted Subsidiaries or solely between
Restricted Subsidiaries;
(iii) the payment of reasonable and customary regular
fees to, and indemnity provided on behalf of, officers,
directors, employees or consultants of the Company or its
Restricted Subsidiaries;
(iv) any payments or other transactions pursuant to
any tax-sharing agreement between the Company and any other
Person with which the Company files a consolidated tax
return or with which the Company is part of a consolidated
group for tax purposes; or
(v) any Permitted Investments and Restricted
Payments not prohibited by Section 4.04 hereof.
Notwithstanding the foregoing, any transaction or series of
related transactions covered by the first paragraph of this
Section 4.08 and not covered by clauses (ii) through (v) of this
paragraph the aggregate amount of which exceeds $2.0 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 Company 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 (including, without limitation,
licenses), or any shares of Capital Stock or Indebtedness of any
Restricted Subsidiary, without making effective provision for all
of the Notes 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 Notes, prior to) the obligation or liability
secured by such Lien.
The foregoing limitation does not apply to:
(i) Liens existing on the Closing Date or required
on the Closing Date to be provided in the future;
(ii) Liens granted after the Closing Date on any
assets or Capital Stock of the Company or its 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
Company or a Restricted Subsidiary to secure Indebtedness
owing to the Company or such other Restricted Subsidiary;
(iv) Liens securing Indebtedness which is Incurred to
refinance secured Indebtedness which is permitted to be
Incurred under clause (v) of the second paragraph of Section
4.03 hereof; provided that such Liens do not extend to or
--------
cover any property or assets of the Company or any
Restricted Subsidiary other than the property or assets
securing the Indebtedness being refinanced;
(v) Liens on any property or assets of Restricted
Subsidiaries securing Indebtedness of Restricted
Subsidiaries permitted under Section 4.03 hereof; or
(vi) Permitted Liens.
SECTION 4.10. Limitation on Sale-Leaseback
----------------------------
Transactions. The Company 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 Company 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 Company 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 solely between the Company
and any Wholly Owned Restricted Subsidiary or solely between
Wholly Owned Restricted Subsidiaries; or
(iv) the Company or such Restricted Subsidiary,
within 12 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
hereof.
SECTION 4.11. Limitation on Asset Sales. The Company
-------------------------
will not, and will not permit any Restricted Subsidiary to,
consummate any Asset Sale, unless (i) the consideration received
by the Company 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. For purposes of this Section 4.11,
the following are deemed to be cash: (x) the principal amount or
accreted value (whichever is larger) of Indebtedness of the
Company or any Restricted Subsidiary with respect to which the
Company or such Restricted Subsidiary has either (I) received a
written release or (II) been released by operation of law, in
either case, from all liability on such Indebtedness in
connection with such Asset Sale and (y) securities received by
the Company or any Restricted Subsidiary from the transferee that
are promptly converted by the Company or such Restricted
Subsidiary into cash. In the event and to the extent that the Net
Cash Proceeds received by the Company or any of 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 filed with the Commission or provided to
the Trustee pursuant to Section 4.18 hereof, then the Company
shall or shall cause the relevant Restricted Subsidiary to (i)
within 12 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 Company, or any
Restricted Subsidiary providing a Subsidiary Guarantee pursuant
to Section 4.07 hereof or Indebtedness of any other Restricted
Subsidiary, in each case owing to a Person other than the Company
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
12 months after the date of such agreement), (x) in property or
assets (other than current assets) of a nature or type or that
are used in a business (or in a Person (other than a natural
person) 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 Company
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) or (y) in property or assets (other than
current assets) related to the Telecommunications Business,
including, without limitation, telecommunications switches and
related equipment, services, leases, licenses, capacity and
rights-of-use (or in a person (other than a natural person)
having property or assets related to the Telecommunications
Business, including, without limitation, telecommunications
switches and related equipment, services, leases, licenses,
capacity and rights-of-use) and (ii) apply (no later than the end
of the 12-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 paragraph 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 12-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
$20.0 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, and an offer to
purchase any outstanding Indebtedness with similar provisions
requiring the Company to make an offer to purchase such
Indebtedness, in an aggregate principal amount at maturity of
Notes (or, if prior to February 15, 2003, the Accreted Value of
the Notes) and such pari passu Indebtedness equal to (A) with
respect to the Notes, the product of such Excess Proceeds
multiplied by a fraction, the numerator of which is the
outstanding principal amount at maturity of the Notes (or, if
prior to February 15, 2003, the Accreted Value of the Notes) and
the denominator of which is the sum of the outstanding principal
amount at maturity of the Notes (or, if prior to February 15,
2003, the Accreted Value of the Notes) and such pari passu
Indebtedness (the product hereinafter referred to as the "Note
Amount"), and (B) with respect to the pari passu Indebtedness,
the excess of the Excess Proceeds over the Note Amount, at a
purchase price equal to 100% of the Accreted Value of the Notes
or such pari passu Indebtedness, as the case may be, on the
relevant Payment Date or such other date set forth in the
documentation governing the pari passu Indebtedness, plus, in
each case, accrued interest (if any) to the Payment Date or such
other date set forth in the documentation governing the pari
passu Indebtedness. If the aggregate purchase price of the Notes
tendered pursuant to the Offer to Purchase is less than the
Excess Proceeds, the remaining will be available for use by the
Company for general corporate purposes. Upon the consummation of
any Offer to Purchase in accordance with the terms of this
Indenture, the amount of Net Cash Proceeds from Asset Sales
subject to any future Offer to Purchase shall be deemed to be
zero.
SECTION 4.12. Repurchase of Notes 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 Notes then outstanding, at a purchase price
equal to 101% of the Accreted Value thereof on the relevant
Payment Date, plus accrued interest (if any) to the Payment Date.
SECTION 4.13. Existence. Subject to Articles Four and
---------
Five of this Indenture, the Company 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 Company and each such Subsidiary and the rights
(whether pursuant to charter, partnership certificate, agreement,
statute or otherwise), material licenses and franchises of the
Company and each such Subsidiary; provided that the Company shall
--------
not be required to preserve any such right, license or franchise,
or the existence of any Restricted Subsidiary, if the maintenance
or preservation thereof is no longer desirable in the conduct of
the business of the Company and its Restricted Subsidiaries taken
as a whole.
SECTION 4.14. Payment of Taxes and Other Claims. The
---------------------------------
Company 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 Company or any such Subsidiary, (b) the
income or profits of any such Subsidiary which is a corporation
or (c) the property of the Company 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 Company or any such Subsidiary; provided that the Company
--------
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, for which adequate reserves
have been established, and where the failure to effect such
payment is not adverse in any material respect to the Holders.
SECTION 4.15. Maintenance of Properties and Insurance.
---------------------------------------
The Company 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 Company 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 Company 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 Company,
desirable in the conduct of the business of the Company or such
Subsidiary.
The Company 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 Company 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 becomes aware of any Default or Event of Default, the
Company, promptly after it becomes aware thereof, will give
written notice thereof to the Trustee.
SECTION 4.17. Compliance Certificates. (a) The
-----------------------
Company shall deliver to the Trustee, within 90 days after the
end of the Company'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 that a review has been
conducted of the activities of the Company and the Restricted
Subsidiaries and the Company's and the Restricted Subsidiaries'
performance under this Indenture and that the Company has
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 Company shall deliver to the Trustee, within
90 days after the end of its fiscal year, a certificate signed by
the Company's independent certified public accountants stating
(i) that their audit examination has included a review of the
terms of this Indenture and the Notes 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 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
Company's fiscal years, the Company 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. At all times from and after the earlier of (i) the date
-------
of the commencement of an Exchange Offer or the effectiveness of
a Shelf Registration Statement (the "Registration") and (ii) the
------------
date that is six months after the Closing Date, in either case,
whether or not the Company is then required to file reports with
the Commission, the Company shall deliver for filing with the
Commission all such reports and other information as it would be
required to file with the Commission by Section 13(a) or 15(d)
under the Securities Exchange Act of 1934 if it were subject
thereto. All references herein to reports "filed" with the
Commission shall be deemed to refer to the reports then most
recently delivered for filing, whether or not accepted by the
Commission. The Company shall supply the Trustee and each Holder
or shall supply to the Trustee for forwarding to each such
Holder, without cost to such Holder, copies of such reports and
other information. In addition, at all times prior to the
earlier of the date of the Registration and the date that is six
months after the Closing Date, the Company shall, at its cost,
deliver to each Holder of the Notes quarterly and annual reports
substantially equivalent to those which would be required by the
Exchange Act (or, in lieu thereof, the Registration Statement on
Form S-1, S-3 or S-4 filed or to be filed with the Commission in
connection with the Exchange Offer or the Shelf Registration
Statement, if such Form and any amendments thereof contains
comparable information). In addition, at all times prior to the
Registration, upon the request of any Holder or any prospective
purchaser of the Notes designated by a Holder, the Company shall
supply to such Holder or such prospective purchaser the
information required under Rule 144A under the Securities Act.
SECTION 4.19. Waiver of Stay, Extension or Usury Laws.
---------------------------------------
The Company 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 from paying all or any portion of
the principal of, premium, if any, or interest on the Notes 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) the Company 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 May Merge, Etc. The
----------------------------
Company shall not 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 or permit any Person to
merge with or into the Company unless:
(i) the Company shall be the continuing Person, or
the Person (if other than the Company) formed by such
consolidation or into which the Company is merged or that
acquired or leased such property and assets of the Company
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 on all of the Notes and 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, (A) the Company or any
Person becoming the successor obligor of the Notes, as the
case may be, shall have a Consolidated Net Worth equal to or
greater than the Consolidated Net Worth of the Company
immediately prior to such transaction; or (B) the Company or
any Person becoming the successor obligor of the Notes, as
the case may be, shall have a Consolidated Leverage Ratio no
more than the greater of (I) 6:1 and (II) the Consolidated
Leverage Ratio of the Company immediately prior to such
transaction; provided that this clause (iii) shall not apply
--------
to 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 Capital Stock (other than
Disqualified Stock) in the surviving Person or the Company)
shall be issued or distributed to the stockholders of the
Company; and
(iv) the Company delivers to the Trustee an Officers'
Certificate (attaching the arithmetic computations to
demonstrate compliance with clause (iii) above) and 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 clause (iii) of this Section 5.01 does
-------- -------
not apply if, in the good faith determination of the Board of
Directors of the Company, whose determination shall be evidenced
by a Board Resolution, the principal purpose of such transaction
is to change the state of incorporation of the Company; and 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 in accordance with Section 5.01 of this
Indenture, the successor Person formed by such consolidation or
into which the Company 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 under this Indenture with the same effect
as if such successor Person had been named as the Company herein.
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default. An "Event of
----------------- --------
Default" shall occur with respect to the Notes if:
-------
(a) the Company defaults 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) the Company defaults 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 defaults in the performance of or
breaches any other covenant or agreement of the Company in
this Indenture or under the Notes (other than a default
specified in clause (a) or (b) of this Section 6.01 and such
default or breach continues for a period of 30 consecutive
days after written notice by the Trustee to the Company or
to the Company and the Trustee by the Holders of 25% or more
in aggregate principal amount of the Notes;
(d) the Company fails to make or consummate an Offer
to Purchase in accordance with Section 4.11 hereof;
(e) the Company fails to make or consummate an Offer
to Purchase in accordance with the provisions of Section
4.12 hereof;
(f) there occurs with respect to any issue or issues
of Indebtedness of the Company 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;
(g) any final judgment or order (not covered by
insurance) for the payment of money in excess of $10 million
in the aggregate (treating any deductibles, self-insurance
or retention as not so covered) shall be rendered against
the Company 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 the Company or any of its Significant Subsidiaries
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;
(h) a court having jurisdiction in the premises
enters a decree or order for (A) relief in respect of the
Company 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 or any
Significant Subsidiary or for all or substantially all of
the property and assets of the Company or any Significant
Subsidiary or (C) the winding up or liquidation of the
affairs of the Company 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
(i) the Company 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 or any Significant
Subsidiary or for all or substantially all of the property
and assets of the Company 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 (h) or (i) of
Section 6.01 that occurs with respect to the Company) occurs and
is continuing under this Indenture, the Trustee or the Holders of
at least 25% in aggregate principal amount 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 on the Notes to be
immediately due and payable. Upon a declaration of acceleration,
such Accreted Value of, premium, if any, and accrued interest
shall be immediately due and payable. In the event of a
declaration of acceleration because an Event of Default set forth
in clause (f) 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 (f) shall be remedied or cured by the
Company 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 (h) or (i) of Section 6.01 occurs
with respect to the Company, the Accreted Value of, premium, if
any, and accrued interest on the Notes 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 Notes
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 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
Notes, (iii) the principal of and premium, if any, on any Notes
that have become due otherwise than by such declaration or
occurrence of acceleration and interest thereon at the rate
prescribed therefor by such Notes, and (iv) to the extent that
payment of such interest is lawful, interest upon overdue
interest at the rate prescribed therefor by such Notes, (b) all
existing Events of Default, other than the non-payment of the
Accreted Value of, premium, if any, and accrued interest on the
Notes 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 Notes or to
enforce the performance of any provision of the Notes or this
Indenture.
The Trustee may maintain a proceeding even if it does
not possess any of the Notes 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 Notes, 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 Note 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 Note 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 Notes 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.
However, 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 of
Notes not joining in the giving of such direction and may take
any other action it deems proper that is not inconsistent with
any such direction received from Holders of Notes.
SECTION 6.06. Limitation on Suits. A Holder may not
-------------------
institute any proceeding, judicial or otherwise, with respect to
this Indenture or the Notes, 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 Notes shall have
made written request to the Trustee to pursue the remedy;
(iii) such Holder or Holders have offered to the
Trustee indemnity satisfactory to the Trustee against any
costs, liabilities or expenses to be incurred in compliance
with such request;
(iv) the Trustee has failed to comply with the
request within 60 days after receipt of the request and the
offer of indemnity; and
(v) during such 60-day period, the Holders of a
majority in aggregate principal amount at maturity of the
outstanding Notes have not given the Trustee a direction
that is inconsistent with such 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 Notes 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 Notes 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 Note to receive payment of principal of,
premium, if any, or interest on such Holder's Note on or after
the respective due dates expressed on such Note, 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) or (b) 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 Notes 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 Notes, 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 Notes), 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 Notes 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 Notes 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 Notes
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 Notes for principal, premium, if any, and interest,
respectively; and
Third: to the Company or any other obligors of the
Notes, 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 Notes.
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 Notes 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 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 10.04. 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 Notes 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 Notes 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 Notes, (ii) shall not be accountable for
the Company's use or application of the proceeds from the Notes
and (iii) shall not be responsible for any statement in the Notes
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 Responsible 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 Note, 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, 1998, 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 Notes, 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 Notes.
To secure the Company's payment obligations in this
Section 7.07, the Trustee shall have a lien prior to the Notes 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
Notes.
If the Trustee incurs expenses or renders services
after the occurrence of an Event of Default specified in clause
(h) or (i) 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 Notes 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 Notes 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 Notes 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
Sections 310(a)(1) and 310(a)(5). 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 Notes 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
Notes, 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 Notes, 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
Note 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 the Company's
----------------------------
Obligations. Except as otherwise provided in this Section 8.01,
-----------
the Company may terminate its obligations under the Notes and
this Indenture if:
(i) all Notes previously authenticated and delivered
(other than destroyed, lost or stolen Notes that have been
replaced or Notes that are paid pursuant to Section 4.01 or
Notes 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) all the Notes 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 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 Notes 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 Notes 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 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 Notes 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 Notes 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 Notes on the 123rd
day after the deposit referred to below, and the provisions of
this Indenture will no longer be in effect with respect to the
Notes (except for, among other matters, certain obligations to
register the transfer or exchange of the Notes, to replace
stolen, lost or mutilated Notes, to maintain paying agencies and
to hold monies for payment in trust) if, among other things,
(A) the Company has deposited with the Trustee, in
trust, money and/or U.S. Government Obligations that through
the payment of interest and principal in respect thereof in
accordance with their terms will provide money in an amount
sufficient to pay the principal of, premium, if any, and
accrued interest on the Notes on the Stated Maturity of such
payments in accordance with the terms of this Indenture and
the Notes;
(B) the Company has delivered to the Trustee (i)
either (x) an Opinion of Counsel to the effect that 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
deposit, defeasance and discharge had not occurred, which
Opinion of Counsel must be based upon (and accompanied by a
copy of) a ruling of the Internal Revenue Service to the
same effect unless there has been a change in applicable
federal income tax law after the Closing Date such that a
ruling is no longer required or (y) a ruling directed to the
Trustee received from the Internal Revenue Service to the
same effect as the aforementioned Opinion of Counsel and
(ii) an Opinion of Counsel to the effect that the creation
of the defeasance trust does not violate the Investment
Company Act of 1940 and after the passage of 123 days
following the deposit, the trust fund 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;
(C) immediately after giving effect to such deposit on
a pro forma basis, no Event of Default, or event that after
the giving of notice or lapse of time or both would become
an Event of Default, shall have occurred and be continuing
on the date of such deposit or during the period ending on
the 123rd day after the date of such deposit, and such
deposit shall not result in a breach or violation of, or
constitute a default under, any other agreement or
instrument to which the Company or any of its Subsidiaries
is a party or by which the Company or any of its
Subsidiaries is bound;
(D) if at such time the Notes are listed on a national
securities exchange, the Company has delivered to the
Trustee an Opinion of Counsel to the effect that the Notes
will not be delisted as a result of such deposit, defeasance
and discharge, provided that if simultaneously with the
--------
deposit of the money and/or U.S. Government Obligations
referred to in (A) above, the Company has caused an
irrevocable, transferrable, standby letter of credit to be
issued by a bank with capital and surplus exceeding the
principal amount of the Notes then outstanding, expiring not
earlier than 180 days from its issuance, in favor of the
Trustee which permits the Trustee to draw an amount equal to
the principal, premium, if any, and accrued interest on the
Notes through the expiry date of the letter of credit, then
the Company will be deemed to have paid and discharged any
and all obligations in respect of the Notes on the date of
the deposit and issuance of the letter of credit; 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 defeasance contemplated by this
Section 8.02 have been complied with.
Notwithstanding the foregoing, prior to the end of the
123-day period referred to in clause (B)(ii) 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
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 Notes 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 (B)(i) 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 obligations under the Notes and this Indenture except
for those surviving obligations in the immediately preceding
paragraph.
SECTION 8.03. Defeasance of Certain Obligations. The
---------------------------------
Company may omit to comply with any term, provision or condition
set forth in clause (iii) of Section 5.01 and Sections 4.03
through 4.18, and clause (c) of Section 6.01 with respect to
clause (iii) of Section 5.01 and Sections 4.03 through 4.18, and
clauses (c), (d), (e), (f) and (g) of Section 6.01 shall be
deemed not to be Events of Default upon:
(a) the deposit with the Trustee, in trust, of money
and/or U.S. Government Obligations that through the payment
of interest and principal in respect thereof in accordance
with their terms will provide money in an amount sufficient
to pay the principal of, premium, if any, and accrued
interest on the Notes on the Stated Maturity of such
payments in accordance with the terms of this Indenture and
the Notes;
(b) the satisfaction of the provisions described in
clauses (B)(ii), (C) and (D) of Section 8.02 hereof;
(c) the delivery by the Company to the Trustee of an
Opinion of Counsel to the effect that the Holders will not
recognize income, gain or loss for federal income tax
purposes as a result of such deposit and defeasance 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) 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 Notes and this Indenture to
the payment of principal of, premium, if any, and interest on the
Notes; 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 Note 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 obligations under this Indenture and the Notes 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 has made any payment of principal of, premium, if
any, or interest on any Notes because of the reinstatement of its
obligations, the Company shall be subrogated to the rights of the
Holders of such Notes to receive such payment from the money or
U.S. Government Obligations held by the Trustee or Paying Agent.
SECTION 8.07. Defeasance and Certain Other Events of
--------------------------------------
Default. In the event the Company exercises its option to omit
-------
compliance with certain covenants and provisions of this
Indenture with respect to the Notes pursuant to Section 8.03 and
such Notes are declared due and payable because of the occurrence
of an Event of Default that remains applicable, the amount of
money and/or U.S. Government Obligations on deposit with the
Trustee will be sufficient to pay amounts due on such Notes at
the time of their Stated Maturity. If, in the event the Company
exercises its option to omit compliance with certain covenants
and provisions of this Indenture with respect to the Notes
pursuant to Section 8.03 and such Notes are declared due and
payable because of the occurrence of an Event of Default that
remains applicable, the amount of money and/or U.S. Government
Obligations on deposit with the Trustee is insufficient to pay
amounts due on the Notes at the time of the acceleration
resulting from such Events of Default pursuant to Section 6.02,
the Company will remain liable for such payments.
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders. The
--------------------------
Company, when authorized by resolutions of its Board of
Directors, and the Trustee may amend or supplement this Indenture
or the Notes without notice to, or the consent of, any Holder:
(i) 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;
(ii) to comply with Article Five;
(iii) to comply with any requirements of the
Commission in connection with the qualification of this
Indenture under the TIA;
(iv) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee; or
(v) 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, when authorized by its Board of Directors (as
evidenced by a Board Resolution), and the Trustee may amend this
Indenture and the Notes with the written consent of the Holders
of a majority in aggregate principal amount at maturity of the
Notes then outstanding, and the Holders of a majority in
principal amount at maturity of the Notes then outstanding by
written notice to the Trustee may waive future compliance by the
Company with any provision of this Indenture or the Notes.
Notwithstanding the provisions of this Section 9.02,
without the consent of each Holder affected thereby, 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 Note;
(ii) reduce the Accreted Value or principal amount of,
or premium, if any, or interest on, any Note;
(iii) change the place or currency of payment of
principal of, or premium, if any, or interest on, any Note;
(iv) impair the right to institute suit for the
enforcement of any payment on or after the Stated Maturity
(or, in the case of a redemption, on or after the Redemption
Date) of any Note;
(v) reduce the above-stated percentage in principal
amount at maturity of outstanding Notes the consent of whose
Holders is necessary to modify or amend this Indenture;
(vi) waive a Default in the payment of principal of,
premium, if any, or interest on, any Note; or
(vii) reduce the percentage or aggregate principal
amount at maturity of outstanding Notes the consent of whose
Holders is necessary for waiver of compliance with certain
provisions of the Indenture or for waiver of certain
defaults.
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 Note or portion of a Note that evidences the same
debt as the Note of the consenting Holder, even if notation of
the consent is not made on any Note. However, any such Holder or
subsequent Holder may revoke the consent as to its Note or
portion of its Note. 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
Notes.
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 (iv) of Section 9.02. In
case of an amendment or waiver of the type described in clauses
(i) through (iv) of Section 9.02, the amendment or waiver shall
bind each Holder who has consented to it and every subsequent
Holder of a Note that evidences the same indebtedness as the Note
of the consenting Holder.
SECTION 9.04. Notation on or Exchange of Notes. If an
--------------------------------
amendment, supplement or waiver changes the terms of a Note, the
Trustee may require the Holder to deliver it to the Trustee. The
Trustee may place an appropriate notation on the Note about the
changed terms and return it to the Holder and the Trustee may
place an appropriate notation on any Note thereafter
authenticated. Alternatively, if the Company or the Trustee so
determines, the Company in exchange for the Note shall issue and
the Trustee shall authenticate a new Note 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
MISCELLANEOUS
SECTION 10.01. 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 10.02. Notices. Any notice or communication
-------
shall be sufficiently given if in writing and delivered in person
or mailed by first class mail, commercial courier service or
telecopier communication, addressed as follows:
if to the Company:
-----------------
ICG Services, Inc.
9605 East Maroon Circle
P.O. Box 6742
Englewood, Colorado 80155-6742
Attention: Chief Financial Officer
if to the Trustee:
-----------------
Norwest Bank Colorado, N.A.
1740 Broadway
Denver, Colorado 80274-8693
Attention: Corporate Trust and Escrow Services
The Company 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 Note 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 10.02, 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 10.03. Certificate and Opinion As to
-----------------------------
Conditions Precedent. Upon any request or application by the
--------------------
Company to the Trustee to take any action under this Indenture,
the Company 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 10.04. 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 10.05. 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 10.06. Payment Date Other Than a Business Day.
--------------------------------------
If an Interest Payment Date, Redemption Date, Payment Date,
Stated Maturity or date of maturity of any Note shall not be a
Business Day, then payment of principal of, premium, if any, or
interest on such Note, 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, Payment Date, or Redemption Date, or at the Stated Maturity
or date of maturity of such Note; provided that no interest shall
--------
accrue for the period from and after such Interest Payment Date,
Payment Date, Redemption Date, Stated Maturity or date of
maturity, as the case may be.
SECTION 10.07. Governing Law; Submission to
----------------------------
Jurisdiction. This Indenture and the Notes shall be governed by
------------
the laws of the State of New York. 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 Notes and for actions brought under the
U.S. federal or state securities laws brought in any such court.
SECTION 10.08. No Adverse Interpretation of Other
----------------------------------
Agreements. This Indenture may not be used to interpret another
----------
indenture, loan or debt agreement of the Company or any
Subsidiary of the Company. Any such indenture, loan or debt
agreement may not be used to interpret this Indenture.
SECTION 10.09. No Recourse Against Others. No
--------------------------
recourse for the payment of the principal of, premium, if any, or
interest on any of the Notes, 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 contained in
this Indenture, or in any of the Notes, 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 of any
successor Person, either directly or through the Company 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 Notes.
SECTION 10.10. Successors. All agreements of the
----------
Company in this Indenture and the Notes shall bind its
successors. All agreements of the Trustee in this Indenture
shall bind its successors.
SECTION 10.11. 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 10.12. Separability. In case any provision in
------------
this Indenture or in the Notes 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 10.13. 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 SERVICES, INC.
By: /s/ Don Teague
-------------------------
Name: H. Don Teague
Title: Executive Vice President,
General Counsel and
Secretary
NORWEST BANK COLORADO, N.A.
as Trustee
By:/s/ A. Lenore Martinez
-------------------------
Name: A. Lenore Martinez
Title: Sr. Vice President
EXHIBIT A
---------
[FACE OF NOTE]
ICG SERVICES INC.
10% Senior Discount Note Due 2008
[CUSIP] [CINS]
----------
No. $
---------
The following information is supplied for purposes of
Sections 1273 and 1275 of the Internal Revenue Code:
Issue Date: February 12, 1998
Yield to maturity for period from Issue Date to February 15,
2008: 10.00% , compounded semiannually on February 15 and August
15 commencing February 15, 1998 (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):
$886.59
Issue Price (for each $1,000 principal amount at maturity):
$613.41
ICG SERVICES, INC., a Delaware corporation (the
"Company", which term includes any successor under the Indenture
hereinafter referred to), for value received, promises to pay to
[ ], or its registered assigns, the principal sum of
------------
[ ] ($[ ]) on [ ], 2008.
----- ----- ----------
Interest Payment Dates: February 15 and August 15,
commencing August 15, 2003.
Regular Record Dates: February 1 and August 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: February 12, 1998 ICG SERVICES, INC.
By:
-------------------------------
Name:
Title:
By:
-------------------------------
Name:
Title:
(Form of Trustee's Certificate of Authentication)
This is one of the 10% Senior Discount Notes due 2008 described
in the within-mentioned Indenture.
NORWEST BANK COLORADO,
NATIONAL ASSOCIATION, as Trustee
By:
-------------------------------
Authorized Signatory
[REVERSE SIDE OF NOTE]
ICG SERVICES, INC.
10% Senior Discount Note due 2008
1. Principal and Interest.
----------------------
The Company will pay the principal of this 10% Senior
Discount Note due 2008 (the "Note") on February 15, 2008.
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 February 1
or August 1 immediately preceding the Interest Payment Date) on
each Interest Payment Date, commencing August 15, 2003; provided
--------
that no interest shall accrue on the principal amount of this
Note prior to February 15, 2003 and no interest shall be paid on
this Note prior to August 15, 2003, 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 August 12,
1998 in accordance with the terms of the Registration Rights
Agreement dated February 12, 1998 between the Company and Morgan
Stanley & Co. Incorporated, interest (in addition to the accrual
of original discount during the period ending February 15, 2003
and in addition to the interest otherwise due on the Notes after
such date) will accrue from August 12, 1998, at an annual rate of
.5% of the Accreted Value on the preceding Semi-Annual Accrual
Date, payable in cash semiannually, in arrears, on February 15
and August 15 of each year, commencing February 15, 1999, until
the exchange offer is consummated or the shelf registration
statement is declared effective. The Holder of this Note is
entitled to the benefits of such Registration Rights Agreement.
From and after February 15, 2003, 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 February 15, 2003;
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 February 15 and August 15 to
the Persons who are Holders (as reflected in the Note Register at
the close of business on such February 1 and August 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 Note 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 February 12, 1998 (the "Indenture"), between the Company
and Norwest Bank Colorado, N.A., 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 Company may, subject to Article Four of the
Indenture, issue 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 or from time to time, on or
after February 15, 2003 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 Note 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), if redeemed during the 12-month period
commencing February 15, of the years set forth below:
Year Redemption Price
---- ----------------
2003 . . . . . . . . . 105.0000%
2004 . . . . . . . . . 103.3333
2005 . . . . . . . . . 101.6667
2006 and thereafter . . 100.0000
In addition, at any time or from time to time, on or
prior to February 15, 2001, the Company may, at its option,
redeem Notes having an aggregate principal amount at maturity of
up to 35% of the aggregate principal amount at maturity of the
Notes with the proceeds of one or more public or private Equity
Offerings, at a Redemption Price equal to 110.0% of the
Accreted Value thereof on the Redemption Date; provided that at
least 65% of the aggregate principal amount of Notes initially
issued remains outstanding after each such redemption.
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 Note Register. Notes in original
denominations larger than $1,000 of principal amount at maturity
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 Note Register. Notes in
original denominations larger than $1,000 of principal amount at
maturity 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 deposits with the Trustee money and/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) or to Stated
Maturity, the Company 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 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 the Company, merge, consolidate or
transfer substantially all of its assets. Within 90 days after
the end of the last fiscal quarter of each year, the Company must
report to the Trustee on compliance with the terms of the
Indenture.
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 defaults in the performance of or
breaches any other covenant or agreement of the Company in the
Indenture or under the Notes (other than a default specified in
clause (a) or (b) above) 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 of the Notes; (d) the Company fails to make or consummate
an Offer to Purchase in accordance with Section 4.11 of the
Indenture; (e) the Company fails to make or consummate an Offer
to Purchase in accordance with Section 4.12 of the Indenture; (f)
there occurs with respect to any issue or issues of Indebtedness
of the Company or any Significant Subsidiary having an
outstanding principal amount 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; (g)
any final judgment or order (not covered by insurance) for the
payment of money in excess of $10 million in the aggregate
(treating any deductibles, self-insurance or retention as not so
covered) shall be rendered against the Company 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 the Company or any of its Significant Subsidiaries 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; (h) a court having
jurisdiction in the premises enters a decree or order for (A)
relief in respect of the Company 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 or any
Significant Subsidiary or for all or substantially all of the
property and assets of the Company or any Significant Subsidiary
or (C) the winding up or liquidation of the affairs of the
Company 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 (i) the Company 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 or any Significant Subsidiary or for all or
substantially all of the property and assets of the Company 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 (h) or (i) above that occurs with respect to
the Company) 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 occurs and is continuing, the
Trustee or the Holders of at least 25% in aggregate principal
amount at maturity of the Notes then outstanding 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. Trustee Dealings with Company.
-----------------------------
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 or its Affiliates and may
otherwise deal with the Company or its Affiliates as if it were
not the Trustee.
17. No Recourse Against Others.
--------------------------
No incorporator or any past, present or future partner,
stockholder, other equity holder, officer, director, employee or
controlling person as such, of the Company or of any successor
Person shall have any liability for any obligations of the
Company 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.
18. 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.
19. 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).
THIS NOTE SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK.
The Company will furnish to any Holder upon written
request and without charge a copy of the Indenture. Requests may
be made to ICG Services, 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 NOTES OTHER THAN EXCHANGE NOTES,
UNLEGENDED OFFSHORE GLOBAL NOTES AND
UNLEGENDED OFFSHORE CERTIFICATED NOTES]
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 Services, Inc. (the "Company")
10% Senior Discount Notes due 2008 (the "Notes")
------------------------------------------------
Ladies and Gentlemen:
This letter relates to U.S. $ principal
---------------
amount at maturity of Notes 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 February 12, 1998 relating to the
Notes, we hereby certify that we are (or we will hold such Notes
on behalf of) a person outside the United States to whom the
Notes 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 Notes,
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 Services, Inc. (the "Company")
10% Senior Discount Notes due 2008 (the "Notes")
------------------------------------------------
Ladies and Gentlemen:
In connection with our proposed sale of U.S.$
----------
aggregate principal amount at maturity of the Notes, 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 Notes 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 Services, Inc. (the "Company")
10% Senior Discount Notes due 2008 (the "Notes")
------------------------------------------------
Dear Sirs:
In connection with our proposed purchase of
$ aggregate principal amount of the Notes, we confirm
-----------
that:
1. We understand that any subsequent transfer of the
Notes is subject to certain restrictions and conditions set
forth in the Indenture dated as of February 12, 1998
relating to the Notes (the "Indenture") and the undersigned
agrees to be bound by, and not to resell, pledge or
otherwise transfer the Notes 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 Notes
have not been registered under the Securities Act, and that
the Notes 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 Notes, 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 Notes from us a notice advising such purchaser that
resales of the Notes are restricted as stated herein.
3. We understand that, on any proposed resale of any
Notes, 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 Notes 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 Notes, 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 Notes 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