PROMISSORY NOTE
$33,076,754 As of January 1, 1999
FOR VALUE RECEIVED, ICG SERVICES, INC. a Delaware corporation (the
"Borrower"), promises to pay to the order of TRINET REALTY CAPITAL, INC., a
Maryland corporation (the "Lender"), at One Embarcadero Center, 33rd Floor, San
Francisco, CA 94111, Attention: Capital Markets, or at such other place as the
holder of this Note may from time to time designate in writing, the principal
sum of thirty-three million seventy-six thousand seven hundred fifty-four
dollars ($33,076,754), with interest on the principal sum from the date of
disbursement of the principal sum at the rate per annum set forth in that
certain Loan Agreement dated as of the date hereof, between Lender and Borrower
(the "Loan Agreement"), to be paid as set forth in this Note. This Note is made
by the Borrower and delivered to the Lender pursuant the Loan Agreement, the
terms and conditions of which are hereby incorporated herein by reference.
The Borrower shall pay the principal sum of this Note and interest thereon
as follows: The Borrower shall pay monthly installments of interest only in
advance commencing on January 1, 1999, and continuing on the first day of each
successive month thereafter until January 1, 2013, inclusive. The Borrower shall
pay the entire unpaid balance of the principal sum and all accrued but unpaid
interest thereon on January 31, 2013 (the "maturity date").
All sums payable under this Note shall be paid in immediately available
funds, by wire transfer if requested by the holder of this Note, no later than 4
p.m. (Pacific time) on the due date, in lawful money of the United States of
America that is legal tender for public and private debts at the time of
payment. If the date on which any payment of interest or principal is due occurs
on a Saturday or a Sunday or on a day on which banks in the State of California
or the State of Colorado are closed, such payment shall be due and payable on
the next business day on which such banks are open. All payments made on this
Note shall be credited, first, to any charge, fee, cost, expense or amount
(other than principal or interest on this Note) payable by the Borrower under
this Note, the Loan Agreement or the Deed of Trust (as hereinafter defined),
second, to accrued interest on the principal sum, and, third, to the reduction
of the principal sum, and interest shall thereupon cease on the principal so
credited.
The Borrower shall have no right to prepay the principal sum of this Note,
or any part thereof, or any interest thereon, except as expressly provided to
the contrary in the Loan Agreement.
If any installment under this Note is not paid when due, such installment
shall bear interest at a rate of interest equal to the lesser of five hundred
(500) basis points in excess of the prime or reference rate announced from time
to time by Bank of America NT&SA or twelve percent (12%) per annum, from the due
date until such installment is paid. In addition, if any installment is not paid
within five (5) business days of the date due, then the Borrower shall be
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obligated to pay a late charge as provided in Section 4.1 of the Loan Agreement.
As long as any Event of Default (as defined in the Loan Agreement) exists, and
from and after maturity, whether or not resulting from acceleration, the entire
unpaid balance of the principal sum of this Note shall bear interest at the
Default Rate (as defined in the Loan Agreement.
Notwithstanding anything to the contrary in this Note, the total liability
of the Borrower for payments in the nature of interest shall not exceed the
limits applicable to this Note, if any, imposed by the usury laws, if any, of
the United States of America or the State of Colorado. If any payment in the
nature of interest made by the Borrower or received by the holder of this Note
is determined to be in excess of any limit applicable to this Note imposed by
such usury laws, then the amount of such excess shall constitute and be
considered a payment of principal, not interest, and such amount shall be
applied to reduce the principal sum so that the total liability of the Borrower
for payments in the nature of interest does not exceed the applicable limits, if
any, imposed by such usury laws.
This Note is secured by a Deed of Trust, Assignment of Rents and Security
Agreement (the "Deed of Trust") of even date herewith from the Borrower, as
trustor, to the Public Trustee of Arapahoe County, Colorado, as trustee, for the
benefit of the Lender, as beneficiary, encumbering certain real property (the
"Real Property") in Arapahoe County, Colorado. Reference is made to the Deed of
Trust for a description of the nature and extent of the security afforded
thereby, the rights of the holder of this Note in respect of such security, and
the terms and conditions upon which this Note is secured. The holder of this
Note is entitled to the benefits of the Deed of Trust, the Loan Agreement and
all other instruments executed by the Borrower in connection with the
indebtedness evidenced by this Note, and the holder of this Note may enforce the
agreements of the Borrower contained therein and exercise the remedies provided
therein or otherwise in respect thereof, all in accordance with the Deed of
Trust, the Loan Agreement and such other instruments.
If an Event of Default occurs, then, and in any such event, the holder of
this Note shall have the right, at the election of the holder of this Note, to
declare the entire unpaid balance of the principal sum and all accrued but
unpaid interest thereon immediately due and payable and the same shall thereupon
become immediately due and payable, without notice. Time is of the essence of
this Note.
The Borrower promises to pay the holder of this Note all costs and expenses
of collection of this Note and to pay all reasonable attorneys' fees and
expenses incurred in such collection or in any suit or action to collect this
Note or in any appeal thereof. The Borrower waives diligence, demand,
presentment for payment, protest, notice of protest, notice of dishonor and
notice of nonpayment.
The Borrower consents to any extension of time for the payment of this
Note. Any such extension may be made without notice to the Borrower or any party
liable for the payment of this Note and shall not discharge the liability of the
Borrower or any party liable for the payment of this Note. Failure to accelerate
the maturity of the indebtedness evidenced by this Note upon default by the
Borrower, or acceptance of any past due installment, or failure to demand strict
performance by the Borrower of the provisions of this Note shall not constitute
a waiver of any provision of this Note by the holder of this Note.
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There are no oral agreements between the Lender and the Borrower relating
to this Note. If any provision of this Note is held to be invalid or
unenforceable, it shall not affect the validity and enforceability of the other
provisions of this Note. If more than one borrower executes this Note, all
obligations of the Borrower under this Note shall be the joint and several
obligations of each such signatory. As used in this Note, the singular shall
include the plural. This Note shall be governed by and construed in accordance
with the laws of the State of Colorado.
IN WITNESS WHEREOF, the Borrower has executed this Note as of the date
first hereinabove written.
ICG SERVICES, INC., a Delaware corporation
By /s/ H. Don Teague
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Its Executive Vice President
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