EXHIBIT 4.19
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., 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.
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.
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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,
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(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:
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"(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 that,
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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:
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: Autorized 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
Highland Capital Management, L.P.
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
Highland Capital Management, L.P.
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 Technologies Fiber Use Agreement Present Value $2,430,228.46
and ICG Equipment, Inc. Payment $81,024.60
Interest Rate 12.50%
Number of Payments 100
- ---------------------------------------------------------------------------------------------
2. Platte River Power Authority Fiber Use Agreement Present Value $3,760,252.32
and ICG Equipment, Inc. Payment $461,577.60
Interest Rate 12.50%
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. Inter-company 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