EXHIBIT 4.11
Amendment No. 3 to the Loan Documents, dated as of February 11, 2000, among
ICG Equipment, Inc., ICG NetAhead, Inc., 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.
AMENDMENT NO. 3 TO THE
LOAN DOCUMENTS
Dated as of February 11, 2000
AMENDMENT NO. 3 TO THE CREDIT AGREEMENT dated as of August 12, 1999, as
amended by Amendment No. 1 thereto dated as of September 30, 1999 and Amendment
and Waiver No. 2 thereto dated as of December 29, 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
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 enable the Borrowers and the
Parent to make additional capital expenditures in the fiscal year 2000 and to
obtain the capital required to finance these additional capital expenditures.
(2) The Lender Parties have agreed to such amendments on the terms and
conditions set forth herein.
SECTION 1. Amendments to Credit Agreement. The Credit Agreement is,
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effective as of the date hereof and subject to the satisfaction of the
conditions precedent set forth in Section 3, hereby amended as follows:
(a) Section 1.01 is amended by amending and restating the following
definition in its entirety to read as follows:
""Applicable Margin" means, at any time, (a) in respect of the Tranche
A Term Facility and the Working Capital Facility, (i) for the first six
calendar months following the Effective Date, 3.125% in the case of
Eurodollar Rate Advances, and 2.125% in the case of Base Rate Advances, and
(ii) thereafter, a percentage per annum determined by reference to the ICG
Total Leverage Ratio as set forth below and (b) in respect of the Tranche B
Term Facility, 3.750% in the case of Eurodollar Rate Advances, and 2.750% in
the case of Base Rate Advances.
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ICG Total Leverage Ratio Base Rate Advances Eurodollar Rate Advances
* 10:1 2.375% 3.375%
** 10:1, and * 7.5:1 2.000% 3.000%
** 7.5:1, and *** 5.0:1 1.750% 2.750%
**** 5.0:1 1.500% 2.500%
__________________
* greater than sign
** less than or equal to sign
*** greater than or equal to sign
**** less than sign
The Applicable Margin for each Base Rate Advance shall be determined by
reference to the ICG Total Leverage Ratio in effect from time to time and
the Applicable Margin for each Eurodollar Rate Advance shall be determined
by reference to the ratio in effect on the first day of each Interest
Period for such Advance; provided, however, that no change in the
Applicable Margin shall be effective until three Business Days after the
date on which the Administrative Agent receives the financial statements
required to be delivered pursuant to Section 5.03(b) or (c), as the case
may be, and a certificate of the Chief Financial Officer of each Borrower
demonstrating the ICG Total Leverage Ratio."
(b) Section 2.06(b)(ii)(A) shall be amended by adding at the end of
the parenthetical therein the following:
"and other than Net Cash Proceeds required to prepay or repay Debt
permitted pursuant to Section 5.02(b)(iii)(B) and (C) so long as the asset
that is the subject of such sale, lease, transfer or other disposition
secures such Debt".
(c) Section 5.02(b)(iii)(B) is hereby amended to read in full as
follows:
"(B)(x) Debt secured by Liens permitted by Section 5.02(a)(iv) in an
aggregate amount (together with the aggregate amount outstanding under
subsection (C) below) not to exceed $475,000,000 which Debt shall be
incurred in calendar year 2000 and (y) other Debt secured by Liens
permitted by Section 5.02(a)(iv) not to exceed $25,000,000 during any
consecutive 12-month period,"
(d) Section 5.02 (b)(iii)(C) is hereby amended by (i) deleting the
figure "$385,000,000" in the second line thereof and replacing such figure
with the phrase "(together with the aggregate amount outstanding under
subsection (B) above) $475,000,000" and (ii) deleting the parenthetical
therein.
(e) The second column for each fiscal quarter of the year 2000 of the
tables in the following Sections are hereby amended in their entirety to
read:
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(i) for Section 5.04(a) as follows:
" 2000
1/st/ Quarter 2.5:1
2/nd/ Quarter 1.25:1
3/rd/ Quarter 1.20:1
4/th/ Quarter 1.25:1 "
and
(ii) for Section 5.04(b) as follows:
" 2000
1/st/ Quarter $25,000,000
2/nd/ Quarter $32,000,000
3/rd/ Quarter $41,000,000
4/th/ Quarter $69,000,000 "
(f) The third, fourth, fifth and sixth lines of the tables in the
following Sections are hereby amended in their entirety to read:
(i) for Section 5.04(c) as follows:
"March 31, 2000 3.00:1
June 30, 2000 4.00:1
September 30, 2000 4.00:1
December 31, 2000 3.00:1"
and
(ii) for Section 5.04(d) as follows:
"March 31, 2000 9.00:1
June 30, 2000 10.00:1
September 30, 2000 10.00:1
December 31, 2000 7.00:1"
(g) Section 5.04(e) is hereby amended by deleting the ratio "3.75:1"
in the fourth line thereof and substituting therefor the following:
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"(A) For each fiscal quarter set forth below, the ratio set forth below
for such fiscal quarter:
"Fiscal Quarter Ending In Ratio
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March 31, 2000 3.75:1
June 30, 2000 3.00:1
September 30, 2000 2.50:1
December 31, 2000 2.75:1
and (B) for each fiscal quarter thereafter, 3.75:1."
(h) The third, fourth, fifth and sixth lines of the tables in the
following Sections are hereby amended in their entirety to read:
(i) for Section 6.01(p)(i) as follows:
"March 31, 2000 $134,000,000
June 30, 2000 $145,000,000
September 30, 2000 $190,000,000
December 31, 2000 $253,000,000"
(ii) for Section 6.01(p)(ii) as follows:
"March 31, 2000 $62,400,000
June 30, 2000 $57,100,000
September 30, 2000 $77,500,000
December 31, 2000 $128,000,000"
and
(iii) for Section 6.01(p)(v) as follows:
"March 31, 2000 1.75:1
June 30, 2000 1.75:1
September 30, 2000 1.25:1
December 31, 2000 1.50:1"
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(i) Section 6.01(p)(ii) is also amended by deleting the phrase "the
fiscal quarter ended June 30, 2000" in clause (B) therein and replacing
such phrase with the phrase "the fiscal quarters ended June 30, 2000,
September 30, 2000 and December 31, 2000".
(j) The third, fourth, fifth and sixth lines of the table in Section
6.01(q) are hereby amended in their entirety to read as follows:
"March 31, 2000 232,000,000
June 30, 2000 407,000,000
September 30, 2000 402,000,000
December 31, 2000 183,000,000"
(k) The proviso in Section 6.01(q) is amended by (i) adding
immediately after the word "period " in the first line thereof the phrase
"commencing with the period ending March 31, 2000 " and (ii) adding at the
end thereof the following:
"; provided further that ICG and its Subsidiaries shall be entitled to
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make additional Capital Expenditures, in any such period commencing with
the period March 31, 2000 and ending with the period September 30, 2000, in
an amount equal to 10% of the amount permitted in the immediately
succeeding period in accordance with the chart above and the amount
permitted in such succeeding period shall be reduced by the amount of such
additional Capital Expenditures."
SECTION 2. Acknowledgment. Each of the Lender Parties hereby
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acknowledges that it has received the forecast for the Fiscal Year 2000 in
satisfaction of the obligations of each applicable Loan Party pursuant to
Section 5.03(d) of the Credit Agreement.
SECTION 3. Conditions of Effectiveness. This Amendment shall become
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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 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,
(ii) 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
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(iii) any other items reasonably requested by any Lender Party;
(b) 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 7 and 8 of this
Amendment and all other fees payable in connection with this Amendment)
shall have been paid in full.
SECTION 4. Representations and Warranties of the Borrower. The Parent
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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 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, 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 of this Amendment or any of the Transaction Documents, as
amended hereby, to which it is or is to be a party.
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(d) This Amendment has been duly executed and delivered by the Parent
and the Borrowers. This Amendment 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 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, 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 giving of notice constitute, a default
under any material agreement to which any Loan Party is a party.
SECTION 5. Reference to and Effect on the Credit Agreement, the
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Security Agreement, the Notes and the Transaction Documents. (a) On and after
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the effectiveness of this Amendment, 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.
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(b) On and after the effectiveness of this Amendment, 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.
(c) The Credit Agreement, the Security Agreement, the Notes and each
of the other Transaction Documents, as specifically amended by this
Amendment, 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.
(d) The execution, delivery and effectiveness of this Amendment 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 6. Consent of the Parent. The Parent, as guarantor under the
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Parent Guaranty, hereby consents to this Amendment and hereby confirms and
agrees that notwithstanding the effectiveness of this Amendment, 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, (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 (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.
SECTION 7. Costs and Expenses. The Borrowers agree jointly and
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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 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 8. Amendment Fee. The Borrowers agree to pay an amount equal to
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0.25% of the sum of (i) the aggregate Tranche A Term Commitments held by those
Lenders that have, on or prior to February 11, 2000, executed this Amendment,
(ii) the aggregate Tranche B Term Commitments held by those Lenders that have,
on or prior to February 11, 2000, executed this Amendment and (iii) the
aggregate Working Capital Commitments held by those Lenders
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that have, on or prior to February 11, 2000, executed this Amendment, 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 9. Execution in Counterparts. This Amendment may be executed in
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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 by
telecopier shall be effective as delivery of a manually executed counterpart of
this Amendment.
SECTION 10. Governing Law. This Amendment shall be governed by, and
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construed in accordance with, the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment 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
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Title: Executive Vice President,
General Counsel and
Secretary
ICG NETAHEAD, INC., as Borrower
By /s/ Don Teague
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Title: Executive Vice President,
General Counsel and
Secretary
ICG SERVICES, INC., as Parent
Guarantor
By /s/ Don Teague
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Title: Executive Vice President,
General Counsel and
Secretary
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
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Title: Managing Director
BANK OF AMERICA, N.A.,
as Documentation Agent and Lender
Party
By /s/ Julie A. Schell
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Title: Vice President
BARCLAYS BANK PLC
as Co-Documentation Agent and
Lender Party
By /s/ Daniele Iacovone
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Title: Associate Director
Initial Lenders
PARIBAS, LOS ANGELES AGENCY
By /s/ Darlynn Ernst Kitcher/
/s/ Thomas G. Brandt
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Title: Vice President/
Managing Director
FINOVA CAPITAL CORPORATION
By /s/ Andrew J. Pluta
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Title: Vice President
FIRST UNION NATIONAL BANK
By /s/ Mark L. Cook
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Title: Senior Vice President
GENERAL ELECTRIC CAPITAL
CORPORATION
By /s/ Thomas P. Waters
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Title: Senior Vice President
IBM CREDIT
as a Lender
By /s/ Thomas S. Curcio
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Title: Manager of Credit
S-31
STEIN ROE FLOATING RATE LIMITED
LIABILITY COMPANY
By /s/ Brian W. Good
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Title: Vice President,
Stein Roe & Farnham
Incorporated, as Advisor
to the Stien Roe Floating
Rate Limited Liability
Company
STEIN ROE AND FARNHAM
INCORPORATED
AS AGENT FOR KEYPORT LIFE
INSURANCE COMPANY
By /s/ Brian W. Good
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Title: Vice President and
Portfolio Manager
STEIN ROE FARNHAM CLO 1 LTD.
By: Stein Roe & Farnham Incorporated,
as Portfolio Manager
By /s/ Brian W. Good
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Title: Vice President and
Portfolio Manager
PILGRIM PRIME RATE TRUST
By: Pilgrim Investment, Inc., as its
Investment Manager
By /s/ Robert L. Wilson
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Title: Vice President
KZH HIGHLAND-2 LLC
By /s/ Peter Chin
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Title: Authorized Agent
PILGRIM CLO 1999 - 1 LTD.
By: Pilgrim Investments, Inc., as
its investment manager
By /s/ Robert L. Wilson
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Title: Vice President
FRANKLIN FLOATING RATE TRUST
By /s/ Chauncey Lufkin
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Title: Vice President
ELT LTD.
By /s/ Kelly C. Walker
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Title: Authorized Agent
ELF FUNDING TRUST 1
By: Highland Capital Management, L.P.
As Collateral Managers
By /s/ Mark K. Okada
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Name: Mark K. Okada CFA
Title: Executive Vice President
PAMCO CAYMAN LTD.
By: Highland Capital Management, L.P.
As Collateral Manager
By /s/ Mark K. Okada
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Name: Mark K. Okada CFA
Title: Executive Vice President
GLENEAGLES TRADING LLC
By /s/ Kelly C. Walker
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Name: Kelly C. Walker
Title: Vice President