EXHIBIT 4.10
Amendment and Waiver No. 2 to the Loan Documents, dated as of December 29, 1999,
among ICG Equipment, Inc., ICG NetAhead, Inc., ICG Services, Inc., certain
Initial Lender PArties party thereto, Morgan Stanley Senior Funding, Inc., as
Sole Book-Runner and Lead Arranger, Royal Bank of Canada, as Collateral Agent
and as Administrative Agent for such Lender Parties, Bank of America, N.A., as
Documentation Agent and Barclays Bank Plc, as Co-Documentation Agent.
EXECUTION COPY
AMENDMENT AND WAIVER NO. 2 TO THE
LOAN DOCUMENTS
Dated as of December 29, 1999
AMENDMENT AND WAIVER NO. 2 TO THE CREDIT AGREEMENT dated as of
August 12, 1999, and Amendment No. 1 thereto dated as of September 30, 1999
(such Credit Agreement as so amended, the "Credit Agreement") among ICG
Equipment, Inc., a Colorado corporation ("ICG Equipment"), ICG NetAhead, Inc., a
Delaware corporation ("ICG NetAhead" and, together with ICG Equipment, the
"Borrowers"), ICG Services, Inc., as Parent, certain Initial Lender Parties
party thereto, Morgan Stanley Senior Funding, Inc., as Sole Book-Runner and Lead
Arranger, Royal Bank of Canada, as Collateral Agent and as Administrative Agent
for such Lender Parties, Bank of America, N.A., as Documentation Agent and
Barclays Bank Plc, as Co-Documentation Agent. Capitalized terms not otherwise
defined in this Amendment and Waiver have the same meanings as specified
therefor in the Credit Agreement.
PRELIMINARY STATEMENTS:
(1) The Borrowers and the Parent have requested that the
Lender Parties agree to amend the Credit Agreement to (a) enable the Borrowers
and the Parent to make additional capital expenditures in the fourth fiscal
quarter of the year 1999, (b) enable the Borrowers to make intercompany advances
to the Parent pursuant to the terms of certain intercompany promissory notes,
and (c) enable the Parent to make intercompany advances to the Borrowers
pursuant to the terms of certain intercompany promissory notes.
(2) The Borrowers and the Parent have disclosed to the Lender
Parties the existence of certain intercompany debt owed (i) by the Borrowers to
the Parent and (ii) by the Parent to the Borrowers.
(3) The Borrowers and the Parent have also requested that the
Lender Parties amend the Security Agreement to permit termination of Assigned
Agreements under certain circumstances and to waive and amend certain other
requirements of the Loan Documents.
(4) The Borrowers and the Parent have requested that the
Lender Parties waive the requirements of Section 5.02(e) of the Credit Agreement
to permit the transfer of certain property and assets from ICG Equipment to
Qwest Communications Corporation (the "Transferred Property") pursuant to the
Indefeasible Right of Use Agreement between ICG Equipment and Qwest
Communications Corporation, a Delaware corporation ("Qwest"), dated as of June
25, 1999 ("IRU Agreement"), Amendment No. 1 to the IRU Agreement as in effect on
December 31, 1999 and in the form approved by the Lead Arranger ("IRU Amendment
No. 1")
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and the IRU Agreement between ICG Equipment and Qwest as in effect on December
31, 1999 and in the form approved by the Lead Arranger ("IRU Agreement No. 2").
(5) The Lender Parties have agreed to such amendments and
waivers on the terms and conditions set forth herein.
SECTION 1. Amendments to Credit Agreement. The Credit
------------------------------
Agreement is, effective as of the date hereof and subject to the satisfaction of
the conditions precedent set forth in Section 5, hereby amended as follows:
(a) Section 1.01 is amended to add the following new
definitions:
""Amendment and Waiver No. 2" means the Amendment and
Waiver No. 2 to this Agreement dated as of December 29, 1999.
"Equity Exchange" means (i) any exchange or
conversion by the Parent of Parent Debt held by the Parent
for, or into, Equity Interests in ICG Equipment pursuant to
the terms of the Parent Notes or Section 5.01(q)(iii), (ii)
the exchange or conversion of Parent Debt held by the Parent
in an aggregate principal amount at least equal to
$100,000,000 for, or into, Equity Interests in ICG Equipment
on or before December 31, 1999 pursuant to the terms of
Amendment and Waiver No. 2, and (iii) the contribution of cash
required to be made by the Parent in return for Equity
Interests in ICG Equipment pursuant to Section 5.01(q)(i).
""Indentures" mean the Indenture dated as of February
12, 1998, in respect of the 10% Senior Discount Notes due
2008, together with the Indenture dated as of April 27, 1998,
in respect of the 9 7/8% Senior Discount Notes due 2008, in
each case, between the Parent and Norwest Bank Colorado,
National Association, as trustee, and, in each case, as in
effect on the date of Amendment and Waiver No. 2.
"Parent Debt" means the Debt owed to the Parent by
the Borrowers and evidenced by the Parent Notes.
"Parent Investment" means the Investment by the
Parent in the Parent Debt.
"Parent Notes" means the intercompany notes from each
of the Borrowers dated as of December 29, 1999 evidencing the
aggregate Debt owed by each Borrower to the Parent in the form
delivered pursuant to Amendment and Waiver No. 2.
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"Services Debt" means the Debt owed by the Parent to
each of the Borrowers and evidenced by the Services Notes.
"Services Investments" means the Investment by the
Borrowers in the Services Debt.
"Services Notes" means the intercompany promissory
notes from the Parent to each of the Borrowers dated as of
December 29, 1999 evidencing the aggregate Debt owed by the
Parent to each Borrower in the form delivered pursuant to
Amendment and Waiver No. 2."
(b) Section 1.01 is hereby further amended by amending
and restating the following definitions in their entirety to read as
follows:
""Existing Debt" means Debt of each Loan Party and
its Subsidiaries (other than Services Debt and Parent Debt)
outstanding immediately before giving effect to the
consummation of the Transaction.
"Related Documents" means the Parent Notes, the
Services Notes, and the Tax Sharing Agreement."
(c) Section 5.01(i) is amended by adding to the end
thereto the following words:
"; provided, however, that the Parent and its
Subsidiaries may consummate the transactions contemplated by
the Equity Exchange."
(d) A new Section 5.01(q) is added after the existing
Section 5.01(p) to read as follows:
"(q) Conditions Subsequent to Initial Extension of
---------------------------------------------
Credit. Deliver to the Lead Arranger and the Administrative
------
Agent:
(i) as soon as possible and in any event on or before
January 31, 2000, evidence satisfactory to the Lead Arranger
and the Administrative Agent, that all amounts standing to the
credit of the Parent in any deposit account, other bank
account or investment account held or maintained by the
Parent, have been transferred to accounts held and maintained
by, and in the name of, ICG Equipment and, in each case, shall
constitute a contribution of such amounts in return for Equity
Interests in ICG Equipment issued to the Parent by ICG
Equipment,
4
(ii) as soon as possible and in any event on or
before February 29, 2000, the Pledged Account Letters referred
to in the Security Agreement, duly executed by each Person
required by the Lead Arranger to execute such Pledged Account
Letters,
(iii) on or before December 31 of each year,
commencing with December 31, 2000, evidence satisfactory to
the Lead Arranger and the Administrative Agent, that Parent
Debt in an aggregate principal amount of at least $100,000,000
has, during such year, been exchanged by the Parent for Equity
Interests in ICG Equipment, in each case on terms and
conditions satisfactory to the Lead Arranger and the
Administrative Agent, and
(iv) evidence that all other action has been taken
as the Lead Arranger may deem necessary or desirable in order
to effect the transactions contemplated by Amendment and
Waiver No. 2.
(e) Section 5.02(b)(i) is hereby amended by adding an
additional sub-clause (C) thereto as follows:
"(C) The Parent Debt, payable on the terms, and
subject to the provisions, of the Parent Note."
(f) Section 5.02 (b)(iii) is hereby amended by: (i)
deleting the word "and" at the end of subclauses (D) and (E) thereof,
(ii) adding a new sub-clause (F) to read as follows:
"(F) in the case of the Parent, the Services Debt
provided that, in each case, such Services Debt (x) shall constitute
Pledged Debt, (y) shall be on terms acceptable to the Required Lenders
and (z) shall be evidenced by promissory notes in form and substance
satisfactory to the Required Lenders and such promissory notes shall be
pledged as security for the Obligations of the holder thereof under the
Loan Documents to which such holder is a party and delivered to the
Collateral Agent pursuant to the terms of the Security Agreement; and"
, and (iii) making the existing sub-clause (F) a new sub-
clause (G) and amending such sub-clause in its entirety to read as
follows: "(G) other unsecured Debt which is owed to any Person, other
than to the Parent by a Borrower, in an aggregate principal amount not
to exceed $350,000,000 at any one time outstanding.
(g) Section 5.02(f)(i) is amended in its entirety to read
as follows:
5
"(i) Investments by the Parent and its Subsidiaries
in their respective Subsidiaries outstanding on the
date hereof and additional Investments in the
Borrowers and wholly owned Subsidiaries of a Borrower
now existing or organized hereafter, provided that
any such Subsidiary has become a Subsidiary Guarantor
to the extent required by Section 5.01(j)."
(h) Section 5.02(f) is hereby amended by adding an
additional sub-clause (viii) thereto as follows:
"(viii) the Parent Investment and the Services
Investment."
(i) (a) Section 5.02(g)(i) is amended in its entirety to
read as follows:
"(i) each Borrower may (A) declare and pay dividends
and distributions payable only in stock of each
Borrower, and (B) issue Equity Interests in such
Borrower to the Parent".
, and (b) the reference to Section 5.02(b) (iii)(F)
in the final line of Section 5.02(g)(ii) is amended
by changing such reference to "Section 5.02 (b)
(iii)(G)"
(j) Section 5.02(h) is amended by adding to the end
thereof the following words:
"or any other such amendment made solely in
connection with the Equity Exchange and consented to
in writing by the Lead Arranger and the
Administrative Agent."
(k) The second and third lines of the table in Section
6.01(q) of the Credit Agreement are hereby amended in their entirety to
read as follows:
"December 31, 1999 436,000,000
March 31, 2000 0
(l) Section 6.01 is hereby further amended by adding an
additional subclause (r) thereto as follows:
"(r) Any Borrower shall make, or the Parent shall
accept or receive, in each case whether by payment in
cash or in-kind, or by way of set-off, netting or
otherwise, (a) any payment of principal on or in
respect of the Parent Debt other than in accordance
with the terms of the Parent Note or
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pursuant to the Equity Exchange, or (b) any payment
of interest or any other amount (other than
principal) on or in respect of the Parent Debt other
than (i) pursuant to the Equity Exchange, or (ii)
such payments as are applied by the Parent to meet
(A) interest obligations which are due and payable
pursuant to the Indentures or (B) any reasonable
costs and expenses incurred by the Parent in the
ordinary course of its business in an aggregate
amount not to exceed $5,000,000 in any Fiscal Year."
(m) Schedule 4.01(s) is amended by deleting the
information contained therein in its entirety and substituting therefor
the information contained on Schedule I hereto.
(n) Schedule 4.01(w) is amended by deleting the word
"None" contained therein in its entirety and substituting therefor the
information contained on Schedule II hereto.
(o) Schedule 4.01(y) is amended by deleting the
information contained therein in its entirety and substituting therefor
the information contained on Schedule III hereto.
SECTION 2. Waiver to the Credit Agreement. Effective as of the
------------------------------
date hereof and subject to the satisfaction of the conditions precedent set
forth in Section 5, the Lender Parties hereby agree to waive:
(a) any and all of the Defaults and Events of Default
under Section 6.01(b) and (c) that have occurred and
are continuing as a result of the failure of each of
the Borrowers and the Parent to comply with the
requirements of Section 4.01(s), (w) and (y) and
Section 5.02(b)(i)(B) of the Credit Agreement prior
to this Amendment and Waiver, in each case, solely in
connection with their non-disclosure of the Parent
Debt, the Services Debt, the Parent Investment and
the Services Investment.
(b) the requirements of Section 5.02(e), solely to the
extent necessary to permit the Borrowers to
consummate the transactions contemplated by IRU
Amendment No. 1 and IRU Agreement No. 2.
(c) the requirement in Section 26(a)(ii) of the Security
Agreement that a written request to release the
Collateral be delivered to the Collateral Agent at
least ten Business Days prior to such release,
provided, that such request is delivered at least one
Business Day prior to the date hereof and all other
requirements of Section 26 are complied with in
accordance with their terms.
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SECTION 3. Amendment to the Security Agreement. The Security
-----------------------------------
Agreement is, effective as of the date hereof and subject to the satisfaction of
the conditions precedent set forth in Section 5, hereby amended as follows by
amending Section 14(b)(ii) in its entirety to read as follows:
"(ii) amend or otherwise modify any Assigned
Agreement or give any consent, waiver or approval
thereunder, except in the ordinary course of business
and in a manner that would not reasonably be expected
to have a Material Adverse Effect;"
SECTION 4. Release. Each of the Lender Parties hereby agree
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that, solely to the extent, if any, necessary to permit the transactions
contemplated by the IRU Agreement, IRU Amendment No. 1, and IRU Agreement No. 2,
all of the Liens in favor of the Lender Parties solely in respect of the
Transferred Property, shall be deemed to be released, terminated and no longer
in effect. In furtherance of this Section 4 each of the Lender Parties
authorizes the Administrative Agent to execute any documents and to take any and
all other action reasonably required by the Borrowers, at the Borrowers'
expense, to effectuate the release pursuant to Section 26 of the Security
Agreement.
SECTION 5. Conditions of Effectiveness. This Amendment and
---------------------------
Waiver shall become effective as of the date first above written when and only
when:
(a) the Lead Arranger shall have received the following:
(i) counterparts of this Amendment and Waiver executed by
the Borrowers, the Parent, and the Required Lenders or, as to any of
the Lender Parties, advice satisfactory to the Lead Arranger that such
Lender Party has executed this Amendment and Waiver,
(ii) certified copies of the Parent Notes and the Services
Notes, duly executed by the Parent and each of the Borrowers,
(iii) certified copies of the IRU Agreement, IRU Amendment No.
1 and IRU Agreement No. 2 and all other documents, instruments and
agreements entered into in respect thereof or related thereto,
(iv) any filings, or recordings, or consents of any Persons
requested by the Lead Arranger in order to create or perfect a security
interest in favor of the Secured Parties in any Collateral of the
Borrowers, and
(v) any other items reasonably requested by any Lender
Party;
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(b) the Lead Arranger is satisfied with all bank accounts and
all other investment accounts of the Borrowers and the Parent and with the
system of cash management operated by the Parent and the Borrowers;
(c) the Parent has exchanged indebtedness owed to it by ICG
Equipment, in an aggregate principal amount of not less than
$100,000,000 for an Equity Interest in ICG Equipment, in each case on
terms and conditions, satisfactory to each of the Lead Arranger; and
(d) all of the accrued fees and expenses of the Agents and the
Lender Parties (including the accrued fees and expenses of counsel to
the Lead Arranger, the fees and expenses referred in Sections 9 and 10
of this Amendment and Waiver and all other fees payable in connection
with this Amendment and Waiver) shall have been paid in full.
SECTION 6. Representations and Warranties of the Borrower. The
----------------------------------------------
Parent and each Borrower represent and warrant as follows:
(a) Each Loan Party and each of its Subsidiaries (i) is a
corporation duly organized, validly existing and in good standing under
the laws of the jurisdiction of its incorporation, (ii) is duly
qualified and in good standing as a foreign corporation in each other
jurisdiction in which it owns or leases property or in which the
conduct of its business requires it to so qualify or be licensed except
where the failure to so qualify or be licensed could not be reasonably
likely to have a Material Adverse Effect and (iii) has all requisite
corporate power and authority (including, without limitation, all
governmental licenses, permits and other approvals) to own or lease and
operate its properties and to carry on its business as now conducted
and as proposed to be conducted.
(b) The execution, delivery and performance by each Loan Party
of this Amendment and Waiver, the Parent Notes, the Services Notes and
the Transaction Documents as amended hereby, to which it is or is to be
a party, are within such Loan Party's corporate powers, have been duly
authorized by all necessary corporate action, and do not (i) contravene
such Loan Party's charter or bylaws, (ii) violate any law, rule,
regulation (including, without limitation, Regulation X of the Board of
Governors of the Federal Reserve System), order, writ, judgment,
injunction, decree, determination or award, (iii) conflict with or
result in the breach of, or constitute a default or require any payment
to be made under, any contract, loan agreement, indenture, mortgage,
deed of trust, lease or other instrument binding on or affecting any
Loan Party, any of its Subsidiaries or any of their properties in such
a manner as would be reasonably likely to have a Material Adverse
Effect or (iv) except for the Liens created under the Transaction
Documents, result in or require the creation or imposition of any Lien
upon or with respect to any of the properties of any Loan Party or any
of its Subsidiaries. No Loan Party or any of its Subsidiaries is in
violation of any such law, rule, regulation, order,
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writ, judgment, injunction, decree, determination or award or in breach
of any such contract, loan agreement, indenture, mortgage, deed of
trust, lease or other instrument, the violation or breach of which
could be reasonably likely to have a Material Adverse Effect.
(c) No authorization or approval or other action by, and no
notice to or filing with, any governmental authority or regulatory body
or any other third party is required for the due execution, delivery or
performance by any Loan Party party of this Amendment and Waiver, the
Parent Notes, the Services Notes or any of the Transaction Documents,
as amended hereby, to which it is or is to be a party.
(d) This Amendment and Waiver and each of the Parent Notes and
the Services Notes have been duly executed and delivered by the Parent
and the Borrowers. This Amendment and Waiver and each of the Parent
Notes and the Services Notes and each of the other Transaction
Documents, as amended hereby, to which any Loan Party is a party are
legal, valid and binding obligations of each Loan Party thereto,
enforceable against such Loan Party in accordance with their respective
terms.
(e) There is no action, suit, investigation, litigation or
proceeding affecting any Loan Party or any of its Subsidiaries,
including any Environmental Action, pending or threatened before any
court, governmental agency or arbitrator that (i) could be reasonably
likely to have a Material Adverse Effect or (ii) purports to affect the
legality, validity or enforceability of this Amendment and Waiver or
any of the other Transaction Documents as amended hereby.
(f) All filings and other actions necessary or desirable to
perfect and protect the security interest in the Collateral created
under the Collateral Documents have been duly made or taken and are in
full force and effect, and the Collateral Documents create in favor of
the Collateral Agent for the benefit of the Secured Parties a valid
and, together with such filings and other actions, perfected first
priority security interest in the Collateral, securing the payment of
the Secured Obligations, and all filings and other actions necessary or
desirable to perfect and protect such security interest have been duly
taken. The Loan Parties are the legal and beneficial owners of the
Collateral free and clear of any Lien, except for the liens and
security interests created or permitted under the Loan Documents.
(g) The representations and warranties set forth in each of
the Transaction Documents are correct on and as of this date, before
and after giving effect to this Amendment and Waiver, as though made on
and as of such date.
(h) No event has occurred and is continuing that constitutes a
Default. No event has occurred and is continuing that constitutes, or would,
with the lapse of time or the
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giving of notice constitute, a default under any material agreement to which any
Loan Party is a party.
SECTION 7. Reference to and Effect on the Credit Agreement,
-----------------------------------------------
the Security Agreement, the Notes and the Transaction Documents. (a) On and
- ---------------------------------------------------------------
after the effectiveness of this Amendment and Waiver, each reference in the
Credit Agreement to "this Agreement", "hereunder", "hereof" or words of like
import referring to the Credit Agreement, and each reference in the, Notes and
each of the other Transaction Documents to "the Credit Agreement", "thereunder",
"thereof" or words of like import referring to the Credit Agreement, shall mean
and be a reference to the Credit Agreement, as amended by this Amendment and
Waiver.
(b) On and after the effectiveness of this Amendment and
Waiver, each reference in the Security Agreement to "this Agreement",
"hereunder", "hereof" or words of like import referring to the Security
Agreement, and each reference in the Credit Agreement, Notes and each of the
other Transaction Documents to "the Security Agreement", "thereunder", "thereof"
or words of like import referring to the Security Agreement, shall mean and be a
reference to the Security Agreement, as amended by this Amendment and Waiver.
(c) The Credit Agreement, the Security Agreement, the Notes
and each of the other Transaction Documents, as specifically amended by this
Amendment and Waiver, are and shall continue to be in full force and effect and
are hereby in all respects ratified and confirmed. Without limiting the
generality of the foregoing, the Collateral Documents and all of the Collateral
described therein do and shall continue to secure the payment of all Obligations
of the Loan Parties under the Transaction Documents, in each case as amended by
this Amendment and Waiver.
(d) The execution, delivery and effectiveness of this
Amendment and Waiver shall not, except as expressly provided herein, operate as
a waiver of any right, power or remedy of any Lender or the Agents under any of
the Transaction Documents, nor constitute a waiver of any provision of any of
the Transaction Documents.
SECTION 8. Consent of the Parent. The Parent, as guarantor
---------------------
under the Parent Guaranty, hereby consents to this Amendment and Waiver and
hereby confirms and agrees that notwithstanding the effectiveness of this
Amendment and Waiver, the Parent Guaranty is, and shall continue to be, in full
force and effect and is hereby ratified and confirmed in all respects, except
that, on and after the effectiveness of this Amendment and Waiver, (i) each
reference in the Parent Guaranty to the "Credit Agreement", "thereunder",
"thereof" or words of like import shall mean and be a reference to the Credit
Agreement, as amended by this Amendment and Waiver, and (ii) each reference in
the Parent Guaranty to the "Security Agreement", ""thereunder", thereof or words
of like import shall mean and be a reference to the Security Agreement as
amended by this Amendment and Waiver.
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SECTION 9. Costs and Expenses. The Borrowers agree jointly
------------------
and severally to pay on demand all reasonable costs and expenses of the Lead
Arranger in connection with the preparation, execution, delivery and
administration, modification and amendment of this Amendment and Waiver and the
other instruments and documents to be delivered hereunder (including, without
limitation, the reasonable fees and expenses of counsel for the Lead Arranger)
in accordance with the terms of Section 9.04 of the Credit Agreement.
SECTION 10. Amendment Fee. The Borrowers agree to pay an
-------------
amount equal to 0.10% of the sum of (i) the aggregate Tranche A Term Commitments
held by those Lenders that have, on or prior to December 31, 1999, executed this
Amendment and Waiver, (ii) the aggregate Tranche B Term Commitments held by
those Lenders that have, on or prior to December 31, 1999, executed this
Amendment and Waiver and (iii) the aggregate Working Capital Commitments held by
those Lenders that have, on or prior to December 31, 1999, executed this
Amendment and Waiver, payable to the Administrative Agent for the account of
such Lenders, ratably in accordance with their respective interests in such
Tranche A Term Commitments, Tranche B Term Commitments and Working Capital
Commitments.
SECTION 11. Execution in Counterparts. This Amendment and
-------------------------
Waiver may be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed shall be deemed
to be an original and all of which taken together shall constitute but one and
the same agreement. Delivery of an executed counterpart of a signature page to
this Amendment and Waiver by telecopier shall be effective as delivery of a
manually executed counterpart of this Amendment and Waiver.
SECTION 12. Governing Law. This Amendment and Waiver shall be
-------------
governed by, and construed in accordance with, the laws of the State of New
York.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment and Waiver to be executed by their respective officers thereunto duly
authorized, as of the date first above written.
ICG EQUIPMENT, INC., as Borrower
By /s/ Don Teague
---------------------------------
Title:
ICG NETAHEAD, INC., as Borrower
By /s/ Don Teague
---------------------------------
Title:
ICG SERVICES, INC., as Parent Guarantor
By /s/ Don Teague
---------------------------------
Title:
MORGAN STANLEY SENIOR FUNDING,
INC.,
as Sole Book-Runner, Lead Arranger and
Lender Party
By /s/ T. Morgan Edwards II
---------------------------------
Title: Vice President
ROYAL BANK OF CANADA,
as Administrative Agent, Collateral Agent
and Lender Party
By /s/ Kevin K. Cornwell
---------------------------------
Title: Managing Director
BANK OF AMERICA, N.A.,
as Documentation Agent and Lender Party
By /s/ Julie Schell
---------------------------------
Title: Vice President
BARCLAYS BANK PLC
as Co-Documentation Agent and Lender
Party
By /s/ Craig J. Lewis
---------------------------------
Title: Director
FINOVA CAPITAL CORPORATION
By /s/ Jeffrey S. Kilrey
---------------------------------
Title: Senior Vice President
FIRST UNION NATIONAL BANK
By /s/ Mark L. Cook
---------------------------------
Title: Senior Vice President
GENERAL ELECTRIC CAPITAL
CORPORATION
By /s/ Ken Gacevich
---------------------------------
Title: Vice President
STEIN ROE FLOATING RATE LIMITED
LIABILITY COMPANY
By /s/ Jim R. Fellows
---------------------------------
Title: Vice President, Stein Roe &
Farnham, Inc., as advisor to
Stein Roe Floating Rate
Limited Liability Company
STEIN ROE AND FARNHAM
INCORPORATED
AS AGENT FOR KEYPORT LIFE
INSURANCE COMPANY
By /s/ Jim R. Fellows
---------------------------------
Title: Vice President and
Portfolio Manager
STEIN ROE FARNHAM CLO 1 LTD.,
by: Stein Roe & Farnham Incorporated,
As Portfolio Manager
By /s/ Jim R. Fellows
---------------------------------
Title: Vice President and
Portfolio Manager
FRANKLIN FLOATING RATE TRUST
By /s/ Chauncey Lufkin
---------------------------------
Title: Vice President
ELT LTD.
By /s/ Kelly C. Walker
---------------------------------
Title: Authorized Agent
ELF Funding Trust 1
By: Highland Capital Management, L.P.
As Collateral Manager
By /s/ Mark K. Okada
----------------------------
Name: Mark K. Okada
Title: Executive Vice President
Pamco Cayman Ltd.
By: Highland Capital Management, L.P.
As Collateral Manager
By /s/ Mark K. Okada
----------------------------
Name: Mark K. Okada
Title: Executive Vice President
SCHEDULE I TO AMENDMENT AND WAIVER NO. 2
ICG EQUIPMENT, INC.
SCHEDULE 4.01(s) TO CREDIT AGREEMENT
Existing Debt
Capitalized Lease Obligations
Parties Type of Agreement Value
- --------------------------------------------------------------------------------
1. MSF Network Fiber Use Agreement Present Value $2,430,228.46
Technologies and Payment $ 81,024.60
ICG Equipment, Inc. Interest Rate 12.50%
Number of Payments 100
- --------------------------------------------------------------------------------
2. Platte River Fiber Use Agreement Present Value $3,760,252.32
Power Authority Payment $ 461,577.60
and ICG Equipment, Interest Rate 12.50%
Inc. Number of Payments 20
Inter-company payables owing to ICG Services Inc. (Parent Debt) in the amount of
$718,492,882.45 as of September 30, 1999.
SCHEDULE I TO AMENDMENT AND WAIVER NO. 2
ICG NETAHEAD, INC.
SCHEDULE 4.01(s) TO CREDIT AGREEMENT
Existing Debt
Capital Lease Obligations
Principal Tax FMV of MLP
--------- --- ----------
Short-term portion Ameritech 254,785.48 18,744.24 273,529.72
Comdisco #1 861,190.67 75,767.10 936,957.77
Comdisco #2 662,353.06 59,204.76 # 721,557.82
Comdisco #3 55,853.30 5,156.48 61,009.78
Comdisco #4 36,335.26 3,464.76 39,800.02
Comdisco #5 519,795.49 51,193.60 570,989.09
Cisco #1 17,034.33 1,687.56 18,721.89
Cisco #2 129,777.20 12,856.90 142,634.10
Cisco #3 30,980.53 3,096.80 34,077.33
Cisco #4 30,796.05 3,023.72 33,819.77
Cisco #5 110,767.22 11,072.46 121,839.68
Total short-term portion 2,709,668.59 245,268.38 # 2,954,936.97
------------ ---------- ------------
Long-term portion Ameritech - - -
Comdisco #1 - - -
Comdisco #2 - - -
Comdisco #3 15,128.71 1,289.12 16,417.83
Comdisco #4 20,007.26 1,732.38 21,739.64
Comdisco #5 436,412.09 38,395.20 474,807.29
Cisco #1 17,849.75 1,567.02 19,416.77
Cisco #2 135,989.48 11,938.55 147,928.03
Cisco #3 35,120.80 3,096.80 38,217.60
Cisco #4 29,652.25 2,591.76 32,244.01
Cisco #5 125,570.49 11,072.46 136,642.95
Total long-term portion 815,730.83 71,683.29 887,414.12
---------- --------- ----------
Total obligation per amortization schedule 3,525,399.42 316,951.67 3,842,351.09
============ ========== ============
SCHEDULE I TO AMENDMENT AND WAIVER NO. 2
ICG SERVICES, INC.
SCHEDULE 4.01(s) TO CREDIT AGREEMENT
Existing Debt as of August 11, 1999
1. ICG Services, Inc. Indentures:
Notes Principal Accrued Interest to Principal plus
August 11, 1999 Accrued Interest
- --------------------------------------------------------------------------------
10% Notes $331,646,700 $16,217,911 $347,864,611
(Issued February 12, 1998)
9-7/8% Notes $275,598,368 $ 7,596,477 $283,194,845
------------ ----------- ------------
(Issued April 27, 1998)
2. Guarantor of a Promissory Note in the amount of $33,076,754, made by
ICG 161, L.P., owner of property located at 161 Inverness Drive West,
Englewood, Colorado 80112.
3. Inter-company payables (Services Debt) owing to ICG NetAhead Inc. in
the amount of $206,418,344.07 as of September 30, 1999.
4. Inter-company payables owing to ICG 161 in the amount of $2,500,000.00
as of September 30, 1999.
SCHEDULE II TO AMENDMENT AND WAIVER NO. 2
ICG EQUIPMENT, INC.
SCHEDULE 4.01(w) TO CREDIT AGREEMENT
Investments
Intercompany receivables from ICG 161 in the amount of $33,202.28 as of
September 30, 1999.
SCHEDULE II TO AMENDMENT AND WAIVER NO. 2
ICG NETAHEAD, INC.
SCHEDULE 4.01(w) TO CREDIT AGREEMENT
Investments
Inter-company receivables from ICG Services, Inc. (Services Investment) in the
amount of $206,418,344.07 as of September 30, 1999.
SCHEDULE II TO AMENDMENT AND WAIVER NO. 2
ICG SERVICES, INC.
SCHEDULE 4.01(w) TO CREDIT AGREEMENT
Investments
ICG Services, Inc. has made the following investments as of August 11, 1999:
1. An investment of $10,000,000 in NorthPoint Communications, Inc. for 555,555
shares of Class B Common Stock (convertible)
2. An investment of $1,000,000 in International ThinkLink Corporation for
1,250,000 shares of Series C Preferred Stock (convertible)
3. An investment of $34,933,606.11 in ICG ChoiceCom, L.P., a Delaware Limited
Partnership, in exchange for a 49% interest in the Partnership
4. An investment of $12,489,803.33 in ICG Ohio LINX, Inc., an Ohio corporation
for 20 shares of Common Stock.
Other Investments
1. Inter-company receivables (Parent Investment) from ICG Equipment, Inc. in
the amount of $718,492,882.45 as of September 30, 1999.
SCHEDULE III TO AMENDMENT AND WAIVER NO. 2
ICG EQUIPMENT, INC.
SCHEDULE 4.01(y) TO CREDIT AGREEMENT
Material Contracts
Parties Type of Agreement Effective Date or Term Comments
- -----------------------------------------------------------------------------------------------------------------
1. Aspect Telecommunications and ICG Equipment Purchase and March 27, 1998
Equipment Installation
2. Cisco Systems, Inc. and ICG Hardware Purchase and October 8, 1998 Confidentiality
Equipment, Inc. Software License release pending
3. Lucent Technologies and ICG Software Support April 16, 1998
Equipment, Inc. Agreement
4. Lucent Technologies, ICG Telecom General Agreement September 9, 1996; Confidentiality
Group, Inc. (Assignor) and ICG September 8, 1999 release pending
Equipment (Assignee) (See Assignment
Agreement?)
5. McLeod USA and ICG Equipment, Inc. Joint construction April 19, 1999 Confidentiality
release pending
of fiber optic cables
6. MSLI, LLC and ICG Equipment, Inc. Software License Undated Confidentiality
release pending
7. Northern Telecom, Inc., ICG Telecom Equipment Purchase and April 9, 1998 to
Group, Inc., ICG Equipment, Inc. Software License April 8, 2001
and ICG Services, Inc.
8. CarrAmerica Development, Inc. Office Space Lease December 11, 1998 to
(Landlord) and ICG Equipment, [Panorama Corporate January 31, 2003
Inc. Center V (Suite 300)]
9. CarrAmerica Development, Inc. Office Space Lease December 1, 1998 to
(Landlord) and ICG Equipment, [Panorama Corporate December 1, 2003
Inc. Center V (Suite 400)]
10. Platte River Power Authority and ICG Fiber Use Agreement January 8, 1999
Equipment, Inc. (for 24 fibers in
Platte River's 20 years with a
facilities) 20-year option
11. Qwest Communications Corporation and Equipment Purchase Undated Confidentiality
ICG Equipment, Inc. release pending
12. Qwest Communications Corporation and Fiber Optic Right-to-Use June 26, 1997 Confidentiality
ICG Telecom Group, Inc. release pending
13. Qwest Communications Corporation and Addendum to above June 27, 1998 Confidentiality
ICG Equipment, Inc. Agreement, changing release pending
party from ICG Telecom
Group, Inc. to ICG
Equipment, Inc.
14. All Assigned Agreements listed on Schedule II to the Security Agreement
15. ICG Services, Inc. Intercompany payables February 12, 1998
SCHEDULE III TO AMENDMENT AND WAIVER NO.2
ICG NETAHEAD, INC.
SCHEDULE 4.01(y) TO CREDIT AGREEMENT
Material Contracts
Parties Type of Agreement Effective Date or Term Comments
- -------------------------------------------------------------------------------------------------------------
1. Cisco and ICG NetAhead, Inc. Integrated September 24, 1998 to
Communications Service September 24, 2000
Provider Purchase and
License Agreement
2. ICG Telecom Group, Inc. and ICG Dedicated August 24, 1998
NetAhead, Inc. Telecommunications
Services
3. Lucent Technologies and ICG NetAhead Software Support April 1, 1998 to
Agreement December 31, 1998
4. Mindspring Enterprises, Inc. and ICG Network Services February 17, 1999
NetAhead, Inc. Agreement
5. ICG Services, Inc. Inter-company February 17, 1999
receivables