Exhibit 4.29
CONFORMED COPY
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WAIVER TO CREDIT AGREEMENT
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This WAIVER TO CREDIT AGREEMENT dated as of March 30, 2001 (the
"Waiver"), is entered into by and among ICG COMMUNICATIONS, INC., a Delaware
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corporation, and each of its direct and indirect subsidiaries party to the
Agreement (as defined below) (each, individually, a "Borrower" and collectively,
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the "Borrowers"), THE CHASE MANHATTAN BANK, a New York banking corporation, and
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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
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"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 have requested the Agent and the Lenders to
waive compliance with certain of the provisions of the Agreement; and
WHEREAS, the Borrowers and the Lenders desire to waive compliance
with certain of the 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 Waiver are used as defined in the Agreement.
Section 2. Waivers Under the Agreement.
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2.1 On the condition that the Borrowers shall deliver such financial
statements to the Agent and each of the Lenders on or prior to April 13, 2001,
the Lenders hereby waive the provisions of Section 5.1(a) 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. The Borrowers' failure to deliver such financial statements to the
Agent and each of the Lenders on or prior to
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April 13, 2001 shall constitute a default in Borrowers' performance of Section
5.1(a). The foregoing waiver is effective only in this specific instance, and
the Borrowers hereby acknowledge their obligations under Section 5.1(a) of the
Agreement and acknowledge that the foregoing waiver shall not in any way waive
compliance with the provisions of Section 5.1(a) of the Agreement for fiscal
year 2001 or thereafter.
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: (a)
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; and (b) any default or Event of Default resulting from
delivery by the Borrowers' current independent auditor of an opinion in respect
of the Borrowers' and their Subsidiaries' financial statements for the fiscal
year ended December 31, 2000 which is qualified or adverse as a result of such
failure. 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") as described in
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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 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.
Section 3. Effectiveness. The effectiveness of this Waiver is subject
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to the satisfaction and occurrence of the following conditions precedent:
3.1 The Agent shall have received executed counterparts of this
Waiver which, when taken together, bear the signatures of the Borrowers
and the 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 true and 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
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and except that references to Schedule 3.13 of the Agreement shall mean
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Schedule 3.13 attached hereto as Exhibit A and except with respect to
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Section 3.4 to the extent that such compliance with GAAP is specifically
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waived herein); and
4.2 After giving effect to the waivers 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 Waiver.
Section 5. Full Force and Effect. Except as specifically waived
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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.
Section 6. Counterparts. This Waiver may be executed in any number of
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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 Waiver are inserted
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for convenience only and shall not affect the meaning or interpretation of this
Waiver 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 Waiver 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: Executive 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: Executive 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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EXHIBIT A
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Schedule 3.13
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