Exhibit 4.28
CONFORMED COPY
FIRST AMENDMENT TO
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CREDIT AGREEMENT
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This FIRST AMENDMENT TO CREDIT AGREEMENT dated as of January 31, 2001
(the "First Amendment"), is entered into by and among ICG COMMUNICATIONS, INC.,
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a Delaware corporation, and each of its direct and indirect subsidiaries party
to the Agreement (as defined below) (each, individually, a "Borrower" and
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collectively, the "Borrowers"), THE CHASE MANHATTAN BANK, a New York banking
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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
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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 (the
"Agreement"), pursuant to which the Lenders have made available to the Borrowers
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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 have requested that the Lenders make certain
modifications to the Agreement; and
WHEREAS, the Borrowers and the Lenders desire to amend and supplement
the Agreement to reflect the modifications requested by the Borrowers;
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 First Amendment are used as defined in the Agreement.
Section 2. Amendments to Agreement. Subject to the conditions set
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forth in Section 3 hereof, the Agreement is hereby amended as follows:
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2.1 Section 7.1(m) of the Agreement is hereby amended by modifying
clause "(iii)" to read as follows: "mechanics liens and certain other
pre-petition claims against the Borrowers in a total amount not in excess of
$17,000,000 (excluding refunds or credits to customers issued in the ordinary
course of business)".
Section 3. Effectiveness. The effectiveness of this First Amendment
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is subject to the satisfaction and occurrence of the following conditions
precedent:
3.1 The Agent shall have received executed counterparts of this First
Amendment which, when taken together, bear the signatures of the Borrowers
and the Required Lenders.
Section 4. Representations and Warranties. Each Borrower represents
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and warrants to the Lenders that:
4.1 The representations and warranties of the Borrowers contained in
Section 3 of the Agreement are correct in all material respects on and as
of the date hereof as if such representations and warranties had been made
on and as of the date hereof (except to the extent that any such
representations and warranties specifically relate to an earlier date);
and
4.2 After giving effect to the amendments contained herein, (i) each
Borrower is in compliance with all the terms and provisions set forth in
the Agreement, and (ii) no Event of Default has occurred and is continuing
(other than as specifically waived herein) or would result from the
execution, delivery and performance of this First Amendment.
Section 5. Full Force and Effect. Except as specifically amended
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hereby, all of the terms and conditions of the Agreement shall remain in full
force and effect, and the same are hereby ratified and confirmed. No reference
to this First Amendment need be made in any instrument or document at any time
referring to the Agreement, a reference to the Agreement in any of such to be
deemed to be reference to the Agreement as amended hereby.
Section 6. Counterparts. This First 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 7. Headings. The various headings of this First Amendment are
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inserted for convenience only and shall not affect the meaning or interpretation
of this First Amendment or any provisions hereof.
[The remainder of this page is intentionally left blank.]
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IN WITNESS WHEREOF, the parties hereto have caused this First
Amendment to be duly executed as of the day and the year first written.
BORROWERS:
ICG COMMUNICATIONS, INC.
By: /s/ Bernard L. Zuroff
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Name: Bernard L. Zuroff
Title: Vice President
ICG TEVIS, INC.
By: /s/ Bernard L. Zuroff
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Name: Bernard L. Zuroff
Title: Vice President
ICG FUNDING, LLC
By: ICG Communications, Inc.,
its Managing Member
By: /s/ Bernard L. Zuroff
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Name: Bernard L. Zuroff
Title: Vice President
ICG SERVICES, INC.
By: /s/ Bernard L. Zuroff
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Name: Bernard L. Zuroff
Title: Executive Vice President
ICG MOUNTAIN VIEW, INC.
By: /s/ Bernard L. Zuroff
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Name: Bernard L. Zuroff
Title: Executive Vice President
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ICG NETAHEAD, INC.
By: /s/ Bernard L. Zuroff
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Name: Bernard L. Zuroff
Title: Executive Vice President
ICG EQUIPMENT, INC.
By: /s/ Bernard L. Zuroff
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Name: Bernard L. Zuroff
Title: Executive Vice President
ICG CANADIAN ACQUISITION, INC.
By: /s/ Bernard L. Zuroff
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Name: Bernard L. Zuroff
Title: Executive Vice President
ICG HOLDINGS (CANADA) CO.
By: /s/ Bernard L. Zuroff
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Name: Bernard L. Zuroff
Title: Executive Vice President
ICG HOLDINGS, INC.
By: /s/ Bernard L. Zuroff
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Name: Bernard L. Zuroff
Title: Executive Vice President
ICG TELECOM GROUP, INC.
By: /s/ Bernard L. Zuroff
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Name: Bernard L. Zuroff
Title: Vice President
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NIKONET, LLC
By: ICG Telecom Group, Inc.,
its Managing Member
By: /s/ Bernard L. Zuroff
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Name: Bernard L. Zuroff
Title: Vice President
ICG OHIO LINX, INC.
By: /s/ Bernard L. Zuroff
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Name: Bernard L. Zuroff
Title: Vice President
ICG ENHANCED SERVICES, INC.
By: /s/ Bernard L. Zuroff
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Name: Bernard L. Zuroff
Title: Vice President
COMMUNICATIONS BUYING GROUP, INC.
By: /s/ Bernard L. Zuroff
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Name: Bernard L. Zuroff
Title: Vice President
ICG TELECOM GROUP OF VIRGINIA, INC.
By: /s/ Bernard L. Zuroff
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Name: Bernard L. Zuroff
Title: Vice President
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ICG DATACHOICE NETWORK SERVICES, L.L.C.
By: ICG Telecom Group, Inc.,
its Managing Member
By: /s/ Bernard L. Zuroff
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Name: Bernard L. Zuroff
Title: Vice President
PTI HARBOR BAY, INC.
By: /s/ Bernard L. Zuroff
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Name: Bernard L. Zuroff
Title: Vice President
BAY AREA TELEPORT, INC.
By: /s/ Bernard L. Zuroff
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Name: Bernard L. Zuroff
Title: Vice President
ICG ACCESS SERVICES - SOUTHEAST, INC.
By: /s/ Bernard L. Zuroff
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Name: Bernard L. Zuroff
Title: Vice President
TRANS AMERICAN CABLE, INC.
By: /s/ Bernard L. Zuroff
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Name: Bernard L. Zuroff
Title: Vice President
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ICG TELECOM OF SAN DIEGO, L.P.
By: ICG Telecom Group, Inc.,
its General Partner
By: /s/ Bernard L. Zuroff
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Name: Bernard L. Zuroff
Title: Vice President
WESTERN PLAINS FINANCE, L.L.C.
By: ICG Telecom Group, Inc.,
its Managing Member
By: /s/ Bernard L. Zuroff
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Name: Bernard L. Zuroff
Title: Vice President
ICG CHOICECOM MANAGEMENT, LLC
By: ICG Telecom Group, Inc.,
its Managing Member
By: /s/ Bernard L. Zuroff
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Name: Bernard L. Zuroff
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/ Bernard L. Zuroff
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Name: Bernard L. Zuroff
Title: Vice President
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DOWNNORTH, INC.
By: /s/ Bernard L. Zuroff
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Name: Bernard L. Zuroff
Title: Vice President
THE CHASE MANHATTAN BANK,
Individually and as Agent
By: /s/ Norma C. Corio
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Name: Norma C. Corio
Title: Managing Director
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