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LIMITED WAIVER REGARDING CERTAIN CLOSING CONDITIONS
April 13, 2000
e.spire Communications, Inc.
00000 Xxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxxx Xxxxx
General Counsel
Ladies and Gentlemen:
Reference is made to those certain Purchase Agreements dated March 1,
2000 (the "Purchase Agreements"; capitalized terms defined therein being used
herein as defined therein), among e.spire Communications, Inc. (the "Company")
and each of (i) The Xxxx Alternative Income Fund, L.P. ("Xxxx"), (ii) Greenwich
Street Capital Partners II, L.P., GSCP Offshore Fund, L.P., Greenwich Fund,
L.P., Greenwich Street Employees Fund, L.P. and TRV Executive Fund, L.P.
(together, "Greenwich Street") and (iii) the Honeywell International Inc. Master
Retirement Fund ("Honeywell", together with Xxxx and Greenwich Street, the
"Investors").
The Company has informed the Investors that (a) its financial results for
the fiscal year ended December 31, 1999 were significantly below
market-expectations and resulted in the Company's violation of its covenants in
the Credit Agreement, which caused the Company to be in default under the Credit
Agreement, (b) the Company has not been able to file its Annual Report on Form
10-K for the year ended December 31, 1999 on a timely basis (but will file it
within the timer period permitted by Rule 12b-25 of the Exchange Act) and (c)
the lenders under the Credit Agreement have waived the covenant violations in
clause (a) and certain other defaults pursuant to the attached waiver (the "Bank
Waiver"). Such events and defaults referred to in the previous sentence,
collectively, are referred to herein as the "December 31, 1999 Consequences, the
Company has informed the Investors that it will not be able to comply with
certain conditions set forth in Section 6 of the Purchase Agreements which must
be satisfied for the Investors to participate in the Final Closing and the
Company therefore seeks this limited waiver with respect to such conditions
solely to the extent the Company cannot comply therewith as a result of the
December 31, 1999 Consequences (the "Failed Conditions").
The undersigned Investors hereby agree:
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(1) that the Failed Conditions are waived to the extent that such
conditions will not be satisfied solely as a result of the
December 31, 1999 Consequences; and
(2) to waive any and all right to terminate the Purchase Agreements
pursuant to Section 10 thereof to the extent that the Investors
may have a right to terminate the Purchase Agreements thereunder
solely as a result of the December 31, 1999 Consequences.
This waiver may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument. The waiver set forth
herein shall become effective upon the delivery to the Company and each Investor
of (i) counterparts hereof duly executed and delivered by each of the Investors
and (ii) the Bank Waiver duly executed and delivered by the requisite number of
lenders under the Credit Agreement.
Except as expressly modified by this waiver, the Purchase Agreements
shall remain in full force and effect in accordance with their terms, and the
Investors' obligation to consummate the Final Closing shall remain subject to
the satisfaction of all conditions contained in the Purchase Agreements. This
limited waiver is limited to the matters expressly stated herein and no other
matters and does not constitute a waiver of any other closing conditions or
rights of termination arising out of any other facts and circumstances other
than the December 31, 1999 Consequences.
This limited waiver and the rights and obligations of the parties
hereunder shall be governed by, and shall be construed and enforced in
accordance with the State of New York, without regard to conflicts of laws
principles.
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IN WITNESS WHEREOF, the undersigned have caused this Waiver to be duly
executed and delivered by their respect officers thereunto duly authorized as of
the date first written above.
INVESTORS:
THE XXXX ALTERNATIVE INCOME FUND, L.P.
By:
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Name:
Title:
GREENWICH STREET CAPITAL PARTNERS II, L.P.
By: Greenwich Street Investors II,
L.L.C., general partner
By:
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Name:
Title:
GSCP OFFSHORE FUND, L.P.
By: Greenwich Street Investors II,
L.L.C., general partner
By:
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Name:
Title:
GREENWICH FUND, L.P.
By: Greenwich Street Investors II,
L.L.C., general partner
By:
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Name:
Title:
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GREENWICH STREET EMPLOYEES FUND, L.P.
By: Greenwich Street Investors II,
L.L.C., general partner
By:
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Name:
Title:
TRV EXECUTIVE FUND, L.P.
By: Greenwich Street Investors II,
L.L.C., general partner
By:
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Name:
Title:
THE HONEYWELL INTERNATIONAL INC. MASTER
RETIREMENT TRUST
By: WRH TELECOM PARTNERS, L.L.C.
By:
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Name:
Title:
