EXECUTION COPY
AMENDMENT AND WAIVER NO. 4 TO THE
LOAN DOCUMENTS
Dated as of September 29, 2000
AMENDMENT AND WAIVER NO. 4 (this "Amendment and Waiver") TO THE CREDIT
AGREEMENT dated as of August 12, 1999, as amended by Amendment No. 1 thereto
dated as of September 30, 1999, Amendment and Waiver No. 2 thereto dated as of
December 29, 1999 and Amendment No. 3 thereto dated as of February 11, 2000
(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., a Delaware corporation, 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:
The Borrowers and the Parent have requested that the Lenders amend and
waive certain provisions of the Credit Agreement and the Lenders have agreed to
amend and waive the Credit Agreement on the terms and subject to the conditions
set forth herein. The Borrowers and the Parent hereby acknowledge that except
for the granting of the waiver of certain provisions of the Credit Agreement as
set forth herein, the Defaults and Events of Default being waived herein would
occur and be in existence as of September 30, 2000.
NOW THEREFORE, in consideration of the premises and of the mutual covenants
and agreements contained herein, the parties hereto hereby agree as follows:
SECTION 1. Amendments to Credit Agreement. The Credit Agreement is, upon
the Effective Date (as hereinafter defined), hereby amended as follows:
(a) Section 1.01 of the Credit Agreement is amended to add the following
new definition:
" "Amendment and Waiver No. 4" means the Amendment and Waiver No. 4 to
this Agreement dated as of September 29, 2000."
(b) Section 1.01 of the Credit Agreement is further amended by amending and
restating the following definition in its entirety to read as follows:
" "Applicable Margin" means, at any time, from and after the Effective
Date, (i) with respect to Base Rate Advances, 3.875% per annum with respect
to Tranche A Term Advances and 4.250% per annum with respect to Tranche B
Term Advances and, (ii) with respect to Eurodollar Rate Advances, 4.250%
per annum with respect to Tranche A Term Advances.
For the avoidance of doubt, the amendment to the definition of "Applicable
Margin", is effective as of the Effective Date including, without limitation,
with respect to all existing Advances. In addition, notwithstanding anything to
the contrary contained in the Credit Agreement, from and after the Effective
Date, (i) all Eurodollar Rate Advances shall on the last day of an Interest
Period convert into Base Rate Advances and (ii) Base Rate Advances may not be
converted in Eurodollar Rate Advances.
(c) Section 1.01 of the Credit Agreement is further amended as follows:
(i) The definition of "Material Adverse Change" shall be amended by
adding after the words "material adverse change" the words "occurring on or
after September 30, 2000".
(ii) The definition of "Material Adverse Effect" shall be amended by
(i) adding after the words "material adverse effect" the words "occurring
on or after September 30, 2000" and (ii) adding at the end the following:
"or (d) any of the Collateral" and replacing the word "or" with a comma.
(d) Section 2.06(c) of the Credit Agreement is hereby amended by adding at
the end of the third sentence after the words "Prepayment Date" the following:
"provided that, with respect to any notice of optional prepayment in the amount
of $89,700,000 delivered on or before September 29, 2000, any Tranche B Term
Lender shall be required to make such election in writing to the Administrative
Agent by September 29, 2000 at 3:00 p.m. (E.S.T.)."
(e) Section 5.01 of the Credit Agreement is hereby amended by adding an
additional subclause (q) thereto as follows:
"(q) Additional Information. Promptly provide such information to the
Administrative Agent as it or its agents (including, without limitation,
PricewaterhouseCoopers LLP) shall reasonably request from time to time."
(f) Section 5.03(a)(ii) of the Credit Agreement is hereby amended by adding
at the end thereof the following: "(except as otherwise permitted under Section
2.06(c) hereof)".
(g) Section 6.01 of the Credit Agreement is hereby amended by adding an
additional subclause (s) thereto as follows:
"(s) Any breach or violation of any term of Amendment and Waiver No. 4
if such breach or violation remains unremedied for 3 Business Days after
the date on which written notice thereof shall have been given to the
Borrowers by any Agent or any Lender Party."
SECTION 2. Waiver to Credit Agreement. (a) For the purposes of this
Section, "Waiver Termination Date" means 5:00 p.m. (E.S.T.) on November 30,
2000.
(b) Subject to the occurrence of the Effective Date:
(i) each Lender agrees to waive any and all of the Defaults or Events
of Default that have occurred and are continuing on or prior to September
30, 2000 under Section 6.01(b) of the Credit Agreement through and until
the Waiver Termination Date, to the extent that any representation or
warranty contained in any Transaction Document proves to have been
incorrect in any material respect at the time made or confirmed as a result
of the occurrence of any facts, circumstances, events or conditions
described in this Amendment and Waiver or on Schedule I attached hereto;
(ii) each Lender agrees to waive any and all of the Defaults or Events
of Default that have occurred and are continuing on or prior to September
30, 2000 under Section 6.01(c) of the Credit Agreement through and until
the Waiver Termination Date, as a result of the failure of any Loan Party
to comply with the requirements of any of the following Sections of the
Credit Agreement:
(A) Section 5.01(o) of the Credit Agreement, solely in connection
with the failure by any Loan Party to perform and observe any
provision of the Material Contracts with Microsoft or Netzero or to
enforce any such Material Contract in accordance with its terms;
(B) Section 5.02(a) of the Credit Agreement, solely to the extent
that materialmans', mechanics', landlords', or similar liens exist as
of September 28, 2000 as the result of the deferral of payments of
accounts payable. To the knowledge of the Loan Parties, Schedule II
attached hereto contains a schedule of such materialmans', mechanics',
or landlords' liens which the Loan Parties are aware exist as of
September 28, 2000;
(C) Section 5.03(a)(i) of the Credit Agreement for the period
ended September 30, 2000, solely to the extent resulting from the
failure of the Borrowers to notify the Administrative Agent of any or
all Defaults, Events of Default or any other events, developments or
occurrences which are reasonably likely to have a Material Adverse
Effect, in each case, resulting from the facts, circumstances, events
or conditions described in this Amendment and Waiver or in any
Schedule attached hereto; and
(D) Sections 5.04(a), (b), (c), (d), (e) and (f) of the Credit
Agreement solely for the fiscal quarter ended September 30, 2000;
(iii) Each Lender agrees to waive any and all Defaults and Events of
Default that occur and are continuing on or after September 30, 2000 under
Section 6.01(c) of the Credit Agreement through and until the Waiver
Termination Date, as a result of the failure of any Loan Party to comply
with the requirements of the following sections of the Credit Agreement:
(A) Section 5.01(o) of the Credit Agreement, solely in connection
with the failure by any Loan Party to perform and observe any
provision of the Material Contracts or to enforce any such Material
Contract in accordance with its terms; and
(B) Section 5.02(a) of the Credit Agreement, solely to extent
that materialmans', mechanics', landlords' or similar involuntary
liens arise as the result of the deferral of payments of accounts
payable;
provided, that if any such event described in (A) or (B) above shall be
determined by the Administrative Agent, in its sole discretion, to have a
Material Adverse Effect or to result in a Material Adverse Change, then such
event shall constitute a Default or Event of Default, as the case may be.
(iv) Each Lender agrees to waive any and all Defaults and Events of
Default that occur and are continuing on or after September 30, 2000 under
Section 6.01(d) of the Credit Agreement through and until the Waiver
Termination Date, as a result of the failure of any Loan Party to comply
with the requirements of the following sections of the Credit Agreement:
(A) Section 5.01(b) of the Credit Agreement; and
(B) Section 5.01(m) of the Credit Agreement, solely to the extent
relating to the failure of any Loan Party or any of its Subsidiaries
to make all payments and otherwise perform all obligations in respect
of all leases of real property to which such Loan Party or any of its
Subsidiaries is a party;
provided, that if any such event described in (A) or (B) above shall be
determined by the Administrative Agent, in its sole discretion, to have a
Material Adverse Effect or to result in a Material Adverse Change, then such
event shall constitute a Default or Event of Default, as the case may be.
(v) each Lender agrees to waive any and all of the Defaults or Events
of Default that have occurred or are continuing on or prior to September
30, 2000 under Section 6.01(d) through and until the Waiver Termination
Date, as a result of any Loan Party's failure to comply with any term,
covenant or agreement contained in any of the following Sections of the
Credit Agreement:
(A) Section 5.01(m) of the Credit Agreement, solely to the extent
resulting from the failure to make payments in respect of leases of
real property; and
(B) Section 5.03(h) of the Credit Agreement solely to the extent
relating to the failure of the Loan Parties to promptly deliver
notices received under its Material Contracts with Microsoft and
Netzero on or before September 30, 2000;
(vi) each Lender agrees to waive any and all of the Defaults or Events
of Default that have occurred or are continuing on or prior to September
30, 2000 under Section 6.01(e) through and until the Waiver Termination
Date, as a result of the failure of any Loan Party to make payments due in
respect of Capitalized Leases or the failure of ICG Services, Inc. or ICG
161, L.P. to make payments due under the Loan Agreement between ICG 161,
L.P. and Trinet Realty Capital, Inc. or the related guarantee;
(vii) each Lender agrees to waive any Events of Default that may occur
and be continuing on or after September 30, 2000 under Section 6.01(e)
through and until the Waiver Termination Date, as a result of the failure
of any Loan Party to make payments due in respect of Capitalized Leases or
the failure of ICG Services, Inc. or ICG 161, L.P. to make payments due
under the Loan Agreement between ICG 161, L.P. and Trinet Realty Capital,
Inc. or the related guarantee, provided, that to the extent that any such
failure shall be determined by the Administrative Agent, in its sole
discretion, to have a Material Adverse Effect or to result in a Material
Adverse Change, then such failure shall constitute an Event of Default.
(viii) each Lender agrees to waive any Event of Default that may occur
and be continuing on or after September 30, 2000, solely under the clause
in Section 6.01(f) that states "any Loan Party or any of its Subsidiaries
shall generally not pay its debts as such debts become due," through and
until the Waiver Termination Date; provided, that to the extent that any
such event shall be determined by the Administrative Agent, in its sole
discretion, to have a Material Adverse Effect or to result in a Material
Adverse Change, then such failure shall constitute an Event of Default.
(ix) each Lender agrees to waive the Default or Event of Default that
has occurred or is continuing under Section 6.01(p) solely for the fiscal
quarter ending September 30, 2000 through and until the Waiver Termination
Date, as a result of the failure of ICG to comply with the financial
covenants set forth therein;
(c) On the Waiver Termination Date, such waivers of the Defaults and Events
of Default in paragraph (b) above shall expire and without any further action by
the Administrative Agent and the Lenders, such Defaults and Events of Default
shall be in existence and shall have the same force and effect as if this
Amendment and Waiver had not been entered into by the parties hereto, and the
Administrative Agent and the Lenders shall have all of the rights and remedies
afforded to them under the Transaction Documents with respect to such Defaults
and Event of Default as though no waiver had been granted by them hereunder.
SECTION 3. Optional Termination of the Commitments. Pursuant to, and in
accordance with, Section 2.05(a) of the Credit Agreement, the Borrowers hereby
irrevocably terminate in whole the Unused Working Capital Commitments and the
Lenders hereby waive in connection therewith the notice requirement of five
Business Days for such termination set forth in Section 2.05(a) of the Credit
Agreement.
SECTION 4. Investment Accounts. Subject to the occurrence of the Effective
Date (and after ICG Equipment shall have irrevocably directed Morgan Stanley
Dean Witter Investment Management, Inc. ("MSDWIM") with respect to account no.
30-81631-1 (the "MSDWIM Account") in writing, with the consent of the Collateral
Agent, that not less than $89,700,000 (eighty-nine million seven hundred
thousand dollars) shall have been delivered to the Administrative Agent pursuant
to Section 5(a) hereof and after giving effect to the delivery of such funds to
the Administrative Agent), the Lenders hereby agree that the Collateral Agent
will withdraw the notices each dated September 21, 2000 delivered to each of
MSDWIM with respect to the MSDWIM Account and Janus Funds Money Market ("Janus")
with respect to account no. 881234926 (the "Janus Account") and state that such
notices shall no longer be in effect; provided, that nothing contained herein
shall constitute a release of the security interest and Lien in favor of the
Collateral Agent with respect to such accounts and all property maintained
therein. The Collateral Agent hereby further agrees that until the earlier of
(a) the occurrence of an Event of Default under Sections 6.01(a), 6.01(f) (other
than an Event of Default waived in Section 2(b)(viii) hereof) or 6.01(s) of the
Credit Agreement and (b) the Waiver Termination Date, the Collateral Agent shall
not deliver to either MSDWIM or Janus any notice directing either MSDWIM or
Janus (i) to act only on the directions of the Collateral Agent with respect to
the MSDWIM Account or the Janus Account respectively or (ii) not to deliver,
permit the use of or release the property in either the MSDWIM Account or the
Janus Account, and the Blocked Account Letters each dated September 21, 2000
from RBC Dominion Securities to each of MSDWIM and Janus shall be deemed amended
hereby to such extent.
SECTION 5. Conditions of Effectiveness. This Amendment and Waiver shall
become effective as of the date first above written on the Business Day when,
and only when, the following conditions shall have been satisfied (such date
being for the purposes hereof, the "Effective Date"):
(a) (i) Pursuant to, and in accordance with, Sections 2.06(a) and
2.06(c) of the Credit Agreement, the Borrowers shall have, joint and
severally, optionally prepaid $89,700,000 (eighty-nine million seven
hundred thousand dollars) of the outstanding aggregate principal amount of
the Term Advances, together with accrued interest to the date of such
prepayment on such aggregate principal prepaid, such prepayment to be
applied ratably to the Term Facilities and to the installments thereof pro
rata, and (ii) pursuant to, and in accordance with, Section 2.05(b), the
Term Facility is automatically and permanently reduced on the date the
prepayment referred to in this Section 3(a)(i) in an amount equal to
$89,700,000 and the Administrative Agent shall have acknowledged in writing
to the Borrowers its receipt of freely available funds in such amount.
(b) The Administrative Agent 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 Administrative Agent that
such Lender Party has executed this Amendment and Waiver; and
(ii) a favorable opinion of counsel for the Borrowers and the
Parent, in form and substance satisfactory to the Administrative
Agent.
(c) All principal and interest payments maturing on or before
September 30, 2000 shall have been paid in full.
(d) All of the accrued and unpaid fees and expenses of the Agents and
the Lender Parties (including, without limitation, the accrued fees and
expenses of counsel to the Administrative Agent, the fees, expenses and
retainers referred in Sections 10 and 11 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 Parent and the Borrowers.
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 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 and Waiver or any of the Transaction
Documents, as amended hereby, to which it is or is to be a party.
(d) This Amendment and Waiver has been duly executed and delivered by
the Parent and the Borrowers. This Amendment and Waiver 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) except as set forth in Schedule 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 (except as disclosed in Schedule II hereto).
(g) Except with respect to the representations and warranties in
respect of which there shall be a breach which is waived in this Amendment
and Waiver, the representations and warranties set forth in each of the
Transaction Documents are correct in all material respects 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) Except with respect to the Defaults and Events of Default that are
expressly waived in this Amendment and Waiver, no event has occurred and is
continuing that constitutes a Default.
SECTION 7. Waiver and Release. The Borrowers and the Parent hereby waive
and agree not to assert any claims or causes of action against the
Administrative Agent, the Collateral Agent, the Administration Agent, the
Co-Documentation Agent, any Lender Party or any of their Affiliates, or any of
their respective officers, directors, employees, attorneys and agents, on any
theory of liability, whether known or unknown, matured or contingent, including,
without limitation, for special, indirect, consequential or punitive damages,
arising out of or otherwise relating to, or in connection with, this Amendment
and Waiver, the Facilities, the actual or proposed use of the proceeds of the
Advances or the Letters of Credit, the Transaction Documents or any of the
transactions entered into in connection therewith.
SECTION 8. Reference to and Effect on the Credit Agreement, the Security
Agreement, the Notes and the Transaction Documents. (a) On and after the
Effective Date, 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. Except as expressly provided in Sections
2(b)(iii), 2(b)(iv), 2(b)(vii) and 2(b)(viii), nothing contained in this
Amendment and Waiver shall waive any Default or Event of Default that would
exist or be continuing based upon the occurrence of any fact, circumstances
event or condition arising or existing after September 30, 2000.
SECTION 9. 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 on the Effective Date in all respects, except
that, on and after the Effective Date, (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.
SECTION 10. Costs and Expenses. The Borrowers agree to pay, jointly and
severally, on written demand all reasonable costs and expenses of the
Administrative Agent and the Lenders 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,
and a retainer of $100,000 to, each of counsel and financial advisors for the
Administrative Agent) in accordance with the terms of Section 9.04 of the Credit
Agreement and hereby further agree and covenant, without limiting any other
rights of the Administrative Agent, Collateral Agent or the Lenders under the
Transaction Documents, to pay, jointly and severally, on written demand all fees
and expenses incurred or to be incurred thereby in connection with matters
relating to any due diligence performed in connection with this Amendment and
Waiver (whether performed prior to or after the Effective Date), the monitoring
of the financial condition and prospects of the Loan Parties, the review of any
documentation relating to the Loan Parties and any other actions which the
Administrative Agent determines, in its judgment, to be necessary in connection
with matters relating to the Loan Parties.
SECTION 11. Amendment and Waiver Fee. The Borrowers agree to pay, jointly
and severally, to the Lenders on or before the Effective Date, an amendment and
waiver fee equal to 0.25% of the sum of (a) the aggregate Tranche A Term
Commitments after giving effect to the prepayment referred to in Section 5(a)(i)
above and (b) the aggregate Tranche B Term Commitments after giving effect to
the prepayment referred to in Section 5(a)(i) above, payable to the
Administrative Agent for the account of the Lenders, ratably in accordance with
their respective interests in such Tranche A Term Commitments and Tranche B Term
Commitments.
SECTION 12. 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 13. Governing Law. This Amendment and Waiver shall be governed by,
and construed in accordance with, the laws of the State of New York. In the
event of any conflict or inconsistency between the terms of this Amendment and
Waiver and the Credit Agreement, the terms and provisions of this Amendment and
Waiver shall govern.
SECTION 14. Waiver of Jury Trial. Each of the Borrowers, the Parent, the
Administrative Agent and the Lender Parties irrevocably waives all right to
trial by jury in any action, proceeding or counterclaim (whether based on
contract, tort or otherwise) arising out of or relating to this Amendment and
Waiver or the actions of the Administrative Agent or any Lender Party in the
negotiation, administration, performance or enforcement thereof.
<PAGE>
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: Executive Vice President
ICG NETAHEAD, INC., as Borrower
By /s/ Don Teague
--------------------------------------------------
Title: Executive Vice President
ICG SERVICES, INC., as Parent Guarantor
By /s/ Don Teague
--------------------------------------------------
Title: Executive Vice President
<PAGE>
Signature pages of lenders omitted.
<PAGE>
Schedule I
Material Events
The facts, circumstances, events and conditions described in any Form 8K
filed by any Loan Party with the SEC subsequent to August 1, 2000.
The following lawsuits have been filed against ICG and its subsidiaries:
On September 22, 2000, ICG received notice of a lawsuit filed by certain
shareholders against ICG. Subsequent to that time, ICG has received notice
of six additional lawsuits filed by shareholders.
Microsoft and Netzero have alleged defaults under Material Contracts.
The Loan Parties have not made all payments due with respect to its leases
of real property.
<PAGE>
Schedule II
Mechanic Liens
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C> <C>
General Contractor Lien Claimant
Market/Site Lien Claimant Lease Cure Counsel/Contact Counsel/Contact Landlord Contact Status/Notes
Information Exp. Date Information Information Information
=================================================================================================================================
Orlando Pennington & 09/28/2000 M. A. Mortenson Allen Frank, VP Castle & Cooke T/c with R. Toppe
Associates Company 9/28/00. Advised that
(Subcontractor) ICG curent on payment of
invoices to Mortenson.
Orange County, Claim of Lien Filed Attn: Andrew Shetter Pennington & Attn: Richard S. Final invoice being
FL 9/18/00 Associates, Inc. Toppe, VP processed for $146,000+
6956 Stapoint Ct., SubK's are filing liens
Amount: $63,283.00 700 Meadow Lane North 4601 Six Forks for retainage (&
Ste. J Rd., Ste. 503 possibly work completed
that's in queue for
Minneapolis, MN Winter Park, FL Raleigh, NC 27609 payment). LL wanted to
55422 32792 know if lie
(919) 782-9151 -
Phone
(919) 787-7529 -
Fax
---------------------------------------------------------------------------------------------------------------------------------
Orlando Quality Fabrication & 10/02/00 M. A. Mortenson Quality Fabrication Castle & Cooke
Supply Company & Supply
Orange County, Claim of Lien Filed Attn: Andrew Shetter Attn: P. E. Attn: Richard S.
FL 9/20/00 Streetman Toppe, VP
Amount: $4,747.43 700 Meadow Lane North380 South Cr 427 4601 Six Forks
Rd., Ste. 503
Minneapolis, MN Longwood, FL 32750 Raleigh, NC 27609
55422
(919) 782-9151 -
Phone
Orlando Fire (919) 787-7529 -
Protection Fax
280 Lake Shore Dr.
Lake Mary, FL 33746
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Oakland J. Gibbs Sons, Inc. Robert G. Witser
Alameda Claim of Lien Filed Law Offices of
County, CA 6/16/00 Robt. G. Witser
Amount: $738,249.00 P. O. Box 13221
Oakland, CA
94661-0221
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(510) 339-1599 -
Phone
(510) 339-1070 - Fax
Denver Fentress Bradburn N/A Bovis Lend Lease, David P. Hutchinson N/A
Architects Ltd. Inc.
Arapahoe Notice of Intent to Otten, Johnson,
County, CO File Statement of Robinson, Neff &
Lien dtd 9/25/00 Ragonetti, P.C.
Amount: $37,257.49 950 - 17th St.,
Ste. 1600
Denver, CO 80202
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Denver Bovis Lend Lease, Inc. N/A Same as Claimant Mark A. Rosen N/A
Arapahoe Notice of Intent to McElroy, Deutsch &
County, CO File Statement of Mulvaney
Lien dtd 9/22/00
Amount: $2,142,184.00 1300 Mount Kemble
Ave.
Morristown, NJ
07962
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Fresno Howe Electric, Inc. Michael A. Peters
Fresno County, Complaint Filed Case & Baker, LLP
CA 8/28/00
Amount: $111,356.03 575 Anton Blvd.,
(Rec'd check for Ste.1000
$61,277.94
will revise Costa Mesa, CA 92626
complaint to
$50,357.82)
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Denver City and County of N/A Dept. of Revenue, N/A
Denver Treasury Div.
City/County of Notice of City Use Annex III
Denver, CO Tax Lien dtd 9/20/00
Amount: $542,340.76 144 W. Colfax Ave.
Denver, CO 80202
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Seattle Parrott Mechanical, 09/20/00 M. A. Mortenson Thomas A. DeBoer Voice Mail 9/26/00 - T
(Tukwila, WA) Inc. Company DeBoer advised check
rec'd 9/25/00. Will
wait a couple days for
check to clear.
Anticipate lien releas
filed with County yet
this week (week of
9/25/00). Called back
and left message
requesting that releas
be faxed to ICG Legal
Spokane Claim of Lien Filed Paine, Hamblen, Sabey Corporation
County, WA 7/11/00 Coffin, Brooke &
Miller LLP
Amount: $74,623.00 717 West Sprague Attn: James
Ave., Ste 1200 Harmon, CFO
Spokane, WA 12201 Tukwila
99201-3505 Int'l Blvd., 4th
Floor
(509) 455-6000 Seattle, WA
98168-5121
(206) 281-8700 -
Phone
(206) 282-9951 -
Fax
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Buffalo Grimm Construction Teng Construction
Corp.
File Date:
Amount: $282,706.00
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Denver Fentress Bradburn N/A Bovis Lend Lease David P. Hutchison N/A
Architects Ltd.
City/Co of Notice of Intent to Otten, Johnson,
Denver, CO File Lien Stmt Dtd Robinson, Neff &
9/25/00 Ragonetti, P.C.
Amount: $249,366.14 950 - 17th St.,
(re. South Lot) Ste. 1600
Denver, CO 80202
Denver MacGregor Wathen N/A Bovis Lend Lease Lawrence M.
Construction Company Kersting, Pres.
City/Co of Statement of Lien MacGregor Wathen
Denver, CO dated 9/22/00
Amount: $1,180,892.16
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Phoenix Sterling Network 09/28/2 N/A Cushman & Wakefield Sterling Network
Exchange, LLC of Arizona Exchange, LLC
Maricopa Cty, Default notice under 1850 N. Central c/o Cushman &
AZ lease dtd 9/19/00 Ave., Ste. 300 Wakefield of AZ
Amount: $1,523.94 Phoenix, AZ 1850 N. Central
(Operating Exp) 85004-4590 Ave., Ste. 300
Attn: Lisa Phoenix, AZ
Harryman, PM 85004
(602) 253-7900 -
Phone
(602) 253-0528 - Fax
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Phoenix Sterling Network N/A (Mortensen) Cushman & Wakefield Sterling Network
Exchange, LLC of AZ Exchange, LLC
Maricopa Cty, Invoice for LL 1850 N. Central c/o Cushman &
AZ performed work > LL Ave., Ste. 300 Wakefield of AZ
Work dtd 9/22/00
Amount: $137,565.67 Phoenix, AZ 1850 N. Central
85004-4590 Ave., Ste. 300
Attn: Lisa Phoenix, AZ
Harryman, PM 85004
(602) 253-7900 -
Phone
(602) 253-0528 - Fax
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