Exhibit 4.31
CONFORMED COPY
SECOND AMENDMENT TO
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WAIVER TO CREDIT AGREEMENT
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This SECOND AMENDMENT TO WAIVER TO CREDIT AGREEMENT is dated as of
March 30, 2001 (the "Amendment"), is entered into by and among ICG
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COMMUNICATIONS, INC., a Delaware corporation, and each of its direct and
indirect subsidiaries party to the Agreement (as defined below) (each,
individually, a "Borrower" and collectively, the "Borrowers"), THE CHASE
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MANHATTAN BANK, a New York banking corporation, and each of the other commercial
banks, finance companies, insurance companies or other financial institutions or
funds from time to time party to the Agreement (as defined below) (the
"Lenders"), and THE CHASE MANHATTAN BANK, as agent (the "Agent").
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WITNESSETH:
WHEREAS, the Borrowers, the Lenders and the Agent are parties to that
certain Revolving Credit Agreement dated as of December 4, 2000, as amended by
that certain First Amendment to Revolving Credit Agreement dated as of January
31, 2001 (as so amended, the "Agreement"), pursuant to which the Lenders have
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made available to the Borrowers a revolving credit and letter of credit facility
in an aggregate principal amount not to exceed $350,000,000 and initially not to
be less than $200,000,000; and
WHEREAS, the Borrowers, the Lenders and the Agent are parties to that
certain Waiver to Credit Agreement dated as of March 30, 2001, as amended by
that certain Amendment to Waiver to Credit Agreement dated as of March 30, 2001
(as so amended, the "Waiver") pursuant to which the Lenders and the Agent waived
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Borrowers' compliance with certain of the provisions of the Agreement; and
WHEREAS, the Borrowers have requested the Agent and the Lenders to
supplement the Waiver in certain respects to waive compliance with certain
related provisions of the Agreement; and
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
Section 1. Definitions. Capitalized terms used and not otherwise
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defined in this Amendment are used as defined in the Agreement.
Section 2. Amendments to Waiver.
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2.1 Section 2.1 of the Waiver is hereby amended in its entirety to
read as follows:
2.1 On the condition that the Borrowers shall deliver such
audited
financial statements to the Agent and each of the Lenders on or prior
to June 30, 2001, the Lenders hereby waive the provisions of Sections
5.1(a) and 5.1(c) of the Agreement solely to the extent necessary to
waive the failure of the Borrowers to deliver to the Agent and each of
the Lenders within ninety (90) days after the end of fiscal year 2000
the Borrowers' consolidated and consolidating balance sheets and
related statements of income, stockholders' equity and cash flows for
fiscal year 2000, all as audited for the Borrowers and their
Subsidiaries by their current independent auditor, and the failure of
the Borrowers to deliver the financial certifications required to
accompany such financial statements in accordance with Section 5.1(c).
The Borrowers' failure to deliver such audited financial statements to
the Agent and each of the Lenders, together with the opinion of such
accountants, Financial Officer certifications and other certificates
as required pursuant to Sections 5.1(a) and 5.1(c), on or prior to
June 30, 2001 shall constitute a default in Borrowers' performance of
Sections 5.1(a) and 5.1(c). The foregoing waiver is effective only in
this specific instance, and the Borrowers hereby acknowledge their
obligations under Sections 5.1(a) and 5.1(c) of the Agreement and
acknowledge that the foregoing waiver shall not in any way waive
compliance with the provisions of Sections 5.1(a) and 5.1(c) of the
Agreement for fiscal year 2001 or thereafter.
2.2 Section 2.2 of the Waiver is hereby amended in its entirety to
read as follows:
2.2 The Lenders hereby waive the provisions of Sections 5.1(a),
5.1(b) and 5.6(a) of the Agreement solely to the extent necessary to
waive the failure by the Borrowers and their Subsidiaries to maintain
or cause to be maintained true and complete books and records in
accordance with GAAP of the financial operations of the Borrowers and
their Subsidiaries at all times prior to June 30, 2001. The foregoing
waiver relates solely to the failure by the Borrowers and their
Subsidiaries to comply with the provisions of Financial Accounting
Standards Board Statement No. 121, "Accounting for Impairment of Long-
Lived Assets and for Long-Lived Assets To Be Disposed Of" ("FAS 121")
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as described in the draft auditor's opinion previously delivered to
the Agent, and shall not relate to any other non-compliance of such
financial statements with the provisions of GAAP. The foregoing
waiver is effective only in the specific instances referenced herein
and the Borrowers hereby acknowledge their obligations under Sections
5.1(a), 5.1(b) and 5.6 and acknowledge that the foregoing waiver shall
not in any way waive compliance with the provisions of such Sections
for the purposes of delivery of financial statements prepared in
accordance with GAAP for any and all accounting periods ending on or
after June 30, 2001. The Borrowers hereby further acknowledge that
the foregoing waiver of Borrowers' obligations under Section 5.6 of
the Agreement relates solely to non-compliance with the provisions of
FAS 121 and shall not in any way waive Borrowers' compliance with
Section 5.6 at all times from and after June 30, 2001. Accordingly,
the Borrowers hereby covenant and agree that the financial statements
to be delivered by the Borrowers for the fiscal year ended December
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31, 2000 pursuant to Section 5.1(a) of the Agreement and for the
fiscal quarter ending June 30, 2001 pursuant to Section 5.1(b) of the
Agreement, and all other financial statements thereafter delivered by
the Borrowers pursuant to Sections 5.1(a) and 5.1(b) of the Agreement,
shall be prepared in accordance with GAAP, including, without
limitation, FAS 121, subject to normal year-end audit adjustments.
2.3 Section 2.3 of the Waiver is hereby amended in its entirety to
read as follows:
2.3 To the extent, but solely to the extent, that Sections 6.3,
6.4, 6.9 or 6.11 otherwise preclude the Borrowers or their
Subsidiaries from entering into such transaction, the Lenders hereby
waive the provisions of Sections 6.9 or 6.11 of the Agreement solely
to the extent necessary to permit ICG Holdings, Inc. to execute,
deliver and perform an agreement providing for: (a) the application of
a $10,000,000 security deposit made by ICG Holdings, Inc. under that
certain Commercial Lease dated as of January 15, 1998 (the "TriNet
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Lease") with TriNet Essential Facilities X, Inc. to cure various
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defaults under such lease by ICG Holdings, Inc.; (b) a release of ICG
Holdings, Inc. from any obligation to pay for the garage construction
described therein, which garage is located at 000 Xxxxxxxxx Xxxxx
Xxxx, Xxxxxxxxx, Xxxxxxxx; (c) completion of the garage construction
described therein; and (d) extension of the lease term to twenty five
(25) years. Extension of the term of the TriNet Lease to twenty five
(25) years shall cause the TriNet Lease to constitute a Capitalized
Lease under the Agreement and, accordingly, ICG Holdings, Inc.'s
obligations under the TriNet Lease shall constitute Indebtedness which
is not otherwise permitted under Section 6.3 of the Agreement.
Lenders acknowledge that certain of the monies constituting the
security deposit under the TriNet Lease shall be used to satisfy
obligations secured by mechanics liens which encumber the referenced
garage, but the foregoing waiver shall not otherwise permit ICG
Holdings, Inc. or any other Borrower to make any payments in respect
of such mechanics liens. Application of such security deposit as
described above shall not constitute a Capital Expenditure by ICG
Holdings, Inc. for the purposes of Section 6.4 of the Agreement.
The Lenders have agreed to the foregoing waiver in part in reliance
upon a representation by the Borrowers that the guaranteed maximum
price to complete construction of the referenced garage is
approximately $7,600,000, which cost includes satisfaction of all
obligations currently secured by mechanics liens which encumber such
property. Borrowers hereby acknowledge and agree that it shall
constitute an Event of Default under the Agreement in the event that
ICG Holdings, Inc. or any other Borrower or any of their respective
Subsidiaries are obligated to pay $500,000 or more (in the aggreate)
in construction costs in respect of the referenced garage other than
through the application of the referenced $10,000,000 security
deposit.
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The foregoing waiver is effective only in this specific instance, and
the Borrowers hereby acknowledge their obligations under Sections 6.3,
6.4, 6.9 and 6.11 of the Agreement, and the Borrowers hereby
acknowledge that the foregoing waiver shall not in any way waive
compliance with any other provisions of the Agreement.
Section 3. Effectiveness. The effectiveness of this Amendment is
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subject to the satisfaction and occurrence of the following conditions
precedent:
3.1 The Agent shall have received executed counterparts of this
Amendment which, when taken together, bear the signatures of the Borrowers
and the Lenders.
Section 4. Full Force and Effect. Except as specifically amended
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hereby, all of the terms and conditions of the Waiver and the Agreement shall
remain in full force and effect, and the same are hereby ratified and confirmed.
No reference to this Amendment need be made in any instrument or document at any
time referring to the Waiver, a reference to the Waiver in any of such to be
deemed to be a reference to the Waiver as amended hereby.
Section 5. Counterparts. This Amendment may be executed in any
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number of counterparts, each of which shall constitute an original, but all of
which taken together shall constitute one and the same agreement.
Section 6. Headings. The various headings of this Amendment are
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inserted for convenience only and shall not affect the meaning or interpretation
of this Amendment or any provisions hereof.
[The remainder of this page is intentionally left blank.]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the day and the year first written.
BORROWERS:
ICG COMMUNICATIONS, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President
ICG XXXXX, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Vice President
ICG FUNDING, LLC
By: ICG Communications, Inc.,
its Managing Member
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President
ICG SERVICES, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President
ICG MOUNTAIN VIEW, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President
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ICG NETAHEAD, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President
ICG EQUIPMENT, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President
ICG CANADIAN ACQUISITION, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President
ICG HOLDINGS (CANADA) CO.
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President
ICG HOLDINGS, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President
ICG TELECOM GROUP, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Vice President
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NIKONET, LLC
By: ICG Telecom Group, Inc.,
its Managing Member
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Vice President
ICG OHIO LINX, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Vice President
ICG ENHANCED SERVICES, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Vice President
COMMUNICATIONS BUYING GROUP, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Vice President
ICG TELECOM GROUP OF VIRGINIA, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Vice President
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ICG DATACHOICE NETWORK SERVICES, L.L.C.
By: ICG Telecom Group, Inc.,
its Managing Member
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Vice President
PTI HARBOR BAY, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Vice President
BAY AREA TELEPORT, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Vice President
ICG ACCESS SERVICES - SOUTHEAST, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Vice President
TRANS AMERICAN CABLE, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Vice President
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ICG TELECOM OF SAN DIEGO, L.P.
By: ICG Telecom Group, Inc.,
its General Partner
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Vice President
WESTERN PLAINS FINANCE, L.L.C.
By: ICG Telecom Group, Inc.,
its Managing Member
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Vice President
ICG CHOICECOM MANAGEMENT, LLC
By: ICG Telecom Group, Inc.,
its Managing Member
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Vice President
ICG CHOICECOM, L.P.
By: ICG ChoiceCom Management, LLC
its General Partner
By: ICG Telecom Group, Inc.,
its Managing Member
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Vice President
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DOWNNORTH, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Vice President
THE CHASE MANHATTAN BANK,
Individually and as Agent
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Managing Director
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