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Exhibit 10.56
EXECUTION
e.spire COMMUNICATIONS, INC.
e.spire FINANCE CORPORATION
FIRST AMENDMENT
TO THE FIRST AMENDED AND RESTATED CREDIT AGREEMENT
THIS FIRST AMENDMENT TO THE FIRST AMENDED AND RESTATED CREDIT
AGREEMENT (this "AMENDMENT") is dated as of November 13, 2000 and entered into
by and among e.spire Communications, Inc., a Delaware corporation ("COMPANY"),
e.spire Finance Corporation, a Delaware Corporation ("FINANCE SUB"; Finance Sub
and the Company, collectively referred to as "BORROWERS"), the financial
institutions listed on the signature pages hereof ("LENDERS") and Xxxxxxx Xxxxx
Credit Partners L.P., as Sole Lead Arranger and Syndication Agent, The Bank of
New York, as Administrative Agent for Lenders (in such capacity, "ADMINISTRATIVE
AGENT"), and CIT Lending Services Corporation, as Collateral Agent, and, for
purposes of Section 3 hereof, the Subsidiaries of Finance Sub listed on the
signature pages hereof ("SUBSIDIARY GUARANTORS") and is made with reference to
that certain First Amended and Restated Credit Agreement, dated as of September
19, 2000 (as amended and otherwise modified through the date hereof, the "CREDIT
AGREEMENT"), by and among Company, Finance Sub, Lenders and Agents. Capitalized
terms used herein without definition shall have the same meanings herein as set
forth in the Credit Agreement.
RECITALS
WHEREAS, Borrowers desire Lenders to modify the Cash Balance
Requirement for the period between November 13, 2000 and January 8, 2001 as
described herein;
WHEREAS, Borrowers and Lenders desire to amend certain other
provisions of the Credit Agreement as described herein;
WHEREAS, concurrently with the execution and delivery of this
Amendment, the Xxxx Fund, the Lenders party hereto and the Administrative Agent
are entering into that certain Loan Put Modification Agreement (the
"MODIFICATION AGREEMENT"), dated the date hereof modifying the Loan Put
Agreement;
NOW, THEREFORE, in consideration of the premises and the
agreements, provisions and covenants herein contained, the parties hereto agree
as follows:
SECTION 1. AMENDMENTS TO THE CREDIT AGREEMENT
A. Subsection 1.1 of the Credit Agreement is hereby amended
by deleting the definition of "Cash Balance Requirement" therefrom in its
entirety and substituting the following therefor:
"CASH BALANCE REQUIREMENT" means, as of any date of
determination, the Cash Balances of the Company and its Restricted
Subsidiaries shall be at least an amount equal
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to (i) for the period commencing on November 13, 2000 through January 8,
2000, the sum of (a)(1) $30,000,000 for the period between November 13,
2000 and November 24, 2000, (2) $28,000,000 for the period between
November 25, 2000 and November 30, 2000, (3) $23,000,000 for the period
between December 1, 2000 and December 8, 2000 (4) $20,000,000 for the
period between December 9, 2000 and December 22, 2000, (5) $18,000,000
for the period between December 23, 2000 and December 29, 2000, (6)
$15,000,000 for the period between December 30, 2000 and January 5,
2001, and (7) $10,000,000 for the period between January 6, 2001 and
January 8, 2001 plus (b) the aggregate amount of accrued and unpaid Cash
interest on the Loans and (ii) for the period commencing January 9, 2001
and thereafter, the sum of (a) $30,000,000 plus (b) the aggregate amount
of accrued and unpaid Cash interest on the Loans and the Existing Senior
Notes.
B. Subsection 5.1(xxi) of the Credit Agreement is hereby
amended by deleting the reference to "subsection 6.1(i)" contained therein and
substituting "subsection 5.1(i)" therefor.
C. Subsection 5.11 of the Credit Agreement is hereby amended
by deleting the second sentence contained therein and substituting the following
sentence therefor:
"No later than November 27, 2000, Borrowers shall have taken all
action and executed all documents reasonably requested by Administrative
Agent to cause all Cash of Company and each Subsidiary to be swept
daily, in accordance with the Cash Management System, into one or more
Deposit Accounts held in the name of Finance Sub, subject to Collateral
Account Agreements giving Administrative Agent, for the benefit of
Lenders, a First Priority perfected security interest in such accounts."
D. Subsection 7.3 of the Credit Agreement is hereby amended
by deleting it in its entirety and substituting the following therefor:
"7.3 BREACH OF CERTAIN COVENANTS.
Failure of either Borrower to perform or comply with any term or
condition contained in subsections 2.5, 5.2, 5.11 or 5.13 or Section 6
of this Agreement; or"
SECTION 2. REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Amendment,
Borrowers hereby represent and warrant that:
(a) each Borrower has all requisite corporate power and
authority to enter into this Amendment and to carry out the transactions
contemplated by, and perform its obligations under, the Credit Agreement
as amended by this Amendment (the "AMENDED AGREEMENT");
(b) the execution and delivery of this Amendment and the
performance of the Amended Agreement have been duly authorized by all
necessary corporate action on the part of each Borrower;
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(c) the execution and delivery by each Borrower of this
Amendment and the performance by each Borrower of the Amended Agreement
do not and will not (i) violate any provision of any law or any
governmental rule or regulation applicable to each Borrower or any of
its Subsidiaries, the Certificate or Articles of Incorporation or Bylaws
of each Borrower or any of its Subsidiaries or any order, judgment or
decree of any court or other agency of government binding on a Borrower
or any of its Subsidiaries, (ii) conflict with, result in a breach of or
constitute (with due notice or lapse of time or both) a default under
any Contractual Obligation of any Borrower or any of its Subsidiaries,
(iii) result in or require the creation or imposition of any Lien upon
any of the properties or assets of any Borrower or any of its
Subsidiaries (other than Liens created under any of the Loan Documents
in favor of Agent on behalf of Lenders), or (iv) require any approval of
stockholders or any approval or consent of any Person under any
Contractual Obligation of any Borrower or any of its Subsidiaries;
(d) the execution and delivery by each Borrower of this
Amendment and the performance by each Borrower of the Amended Agreement
do not and will not require any registration with, consent or approval
of, or notice to, or other action to, with or by, any federal, state or
other governmental authority or regulatory body;
(e) this Amendment and the Amended Agreement have been duly
executed and delivered by each Borrower and are the legally valid and
binding obligations of each Borrower, enforceable against each Borrower
in accordance with their respective terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws
relating to or limiting creditors' rights generally or by equitable
principles relating to enforceability.
(f) after giving effect to this Amendment, there exists no Event
of Default or Potential Event of Default under the Credit Agreement;
(g) after giving effect to this Amendment, all representations
and warranties contained in the Credit Agreement and the other Loan
Documents are true, correct and complete in all material respects on and
as of the date hereof except to the extent such representations and
warranties specifically relate to an earlier date, in which case they
were true, correct and complete in all material respects on and as of
such earlier date; and
(h) after giving effect to this Amendment, Borrowers have
performed all agreements to be performed on their part as set forth in
the Credit Agreement.
SECTION 3. ACKNOWLEDGMENT AND CONSENT
Borrowers and Subsidiary Guarantors are collectively referred to
herein as "CREDIT SUPPORT PARTIES" and the Company Guaranty, the Subsidiary
Guaranty and the Collateral Documents to which each Borrower and Subsidiary
Guarantor, as applicable, are party are herein referred to collectively as the
"CREDIT SUPPORT DOCUMENTS." Each Loan Party hereby acknowledges that it has
reviewed the terms and provisions of the Credit Agreement and this Amendment.
Each Loan Party hereby confirms that each Credit Support Document to which it is
a party or otherwise bound and all Collateral encumbered thereby will continue
to guaranty or
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secure, as the case may be, to the fullest extent possible the payment and
performance of all "Guarantied Obligations" and "Secured Obligations" as the
case may be (in each case as such terms are defined in the applicable Credit
Support Document), including without limitation the payment and performance of
all such "Guarantied Obligations" or "Secured Obligations," as the case may be,
in respect of the Obligations of Borrowers now or hereafter existing under or in
respect of the Credit Agreement. Each Credit Support Party acknowledges and
agrees that any of the Credit Support Documents to which it is a party or
otherwise bound shall continue in full force and effect and that all of its
obligations thereunder shall be valid and enforceable and shall not be impaired
or limited by the execution or effectiveness of this Amendment. Each Credit
Support Party (other than Borrowers) acknowledges and agrees that (i)
notwithstanding the conditions to effectiveness set forth in this Amendment,
such Credit Support Party is not required by the terms of the Credit Agreement
or any other Loan Document to consent to this Amendment and (ii) nothing in the
Credit Agreement, this Amendment or any other Loan Document shall be deemed to
require the consent of such Credit Support Party to any future consents or
waivers to the Credit Agreement.
Each of the Credit Support Parties hereby acknowledges and
confirms that it does not have any grounds and hereby agrees not to challenge
(or to allege or to pursue any matter, cause or claim arising under or with
respect to) the Credit Agreement or any of the other Loan Documents (including,
without limitation, any of the Credit Support Documents), any of the terms or
conditions thereof or thereunder, or the status of any thereof as legal, valid
and binding obligations enforceable in accordance with their respective terms;
and it does not possess (and hereby forever waives, remises, releases,
discharges and holds harmless the Lenders and the Agent, and their respective
affiliates, stockholders, directors, officers, employees, attorneys, agents and
representatives and each of their respective heirs, executors, administrators,
successors and assigns (collectively, the "INDEMNIFIED PARTIES") from and
against, and agrees not to allege or pursue) any action, cause of action, suit,
debt, claim, counterclaim, cross-claim, demand, defense, offset, opposition,
demand and other right of action whatsoever, whether in law, equity or otherwise
(which it, all those claiming by, through or under it, or its successors or
assigns, have or may have) against the Indemnified Parties, or any of them,
prior to or as of the date of this Amendment and the effective date of this
Amendment for, upon, or by reason of, any matter, cause or thing whatsoever,
arising out of, or relating to the Credit Agreement or any of the other Loan
Documents (including, without limitation, any of the Credit Support Documents)
(including, without limitation, any payment, performance, validity or
enforceability of any or all of the terms or conditions thereof or thereunder)
or any transaction relating to any of the foregoing, or any or all actions,
courses of conduct or other matters in any manner whatsoever relating to or
otherwise connected with any of the foregoing.
SECTION 4. MISCELLANEOUS
A. REFERENCE TO AND EFFECT ON THE CREDIT AGREEMENT AND THE
OTHER LOAN DOCUMENTS.
(i) On and after the Effective Date (as defined below), each
reference in the Credit Agreement to "this Agreement", "hereunder",
"hereof", "herein" or words of like import referring to the Credit
Agreement, and each reference in the other Loan Documents to the "Credit
Agreement", "thereunder", "thereof" or words of like import
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referring to the Credit Agreement shall mean and be a reference to the
Amended Agreement.
(ii) Except as specifically amended by this Amendment, the
Credit Agreement and the other Loan Documents shall remain in full force
and effect and are hereby ratified and confirmed.
(iii) The execution, delivery and performance of this Amendment
shall not, except as expressly provided herein, constitute a waiver of
any provision of, or operate as a waiver of any right, power or remedy
of Agents or any Lender under, the Credit Agreement or any of the other
Loan Documents.
B. FEES AND EXPENSES. Borrowers acknowledges that all
costs, fees and expenses as described in subsection 9.2 of the Credit Agreement
incurred by Agents and their counsel with respect to this Amendment and the
documents and transactions contemplated hereby shall be for the account of
Borrowers. Borrowers shall concurrently with the execution and delivery of this
Amendment pay all accrued and unpaid fees of O'Melveny & Xxxxx LLP, counsel to
Arranger, for which invoices shall have been received by Company on or prior to
the date of the execution and delivery of this Amendment.
C. HEADINGS. Section and subsection headings in this
Amendment are included herein for convenience of reference only and shall not
constitute a part of this Amendment for any other purpose or be given any
substantive effect.
D. APPLICABLE LAW. THIS AMENDMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW
YORK (INCLUDING WITHOUT LIMITATION SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW
OF THE STATE OF NEW YORK), WITHOUT REGARD TO INCONSISTENT CONFLICTS OF LAWS
PRINCIPLES.
E. EFFECTIVENESS. This Amendment shall become effective
retroactive to November 13, 2000 upon (i) the execution of counterparts hereof
by Borrowers and Subsidiary Guarantors and by Lenders constituting Requisite
Lenders and receipt by Borrowers and Administrative Agent of written or
telephonic notification of such execution and authorization of delivery thereof,
(ii) the execution and delivery of the Modification Agreement by the Xxxx Fund,
Lenders constituting Requisite Lenders and the Administrative Agent, and (iii)
payment of the expenses referenced in Section 4.B hereof; provided, however,
that on December 7, 2000 this Amendment shall terminate and be deemed to be null
and void and the Credit Agreement shall remain and be interpreted as if this
Amendment never became effective unless on or before December 8, 2000, either
(a) all of the outstanding Obligations have been paid in full or (b) the Xxxx
Fund has purchased $24,300,000 of the Loans in accordance with the terms of the
Loan Put Agreement and the Modification Agreement.
F. COUNTERPARTS. This Amendment may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so
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executed and delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument; signature pages may
be detached from multiple separate counterparts and attached to a single
counterpart so that all signature pages are physically attached to the same
document.
[signature page to follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment
to be duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
BORROWERS:
e.spire COMMUNICATIONS, INC.
By: /s/ XXXXXXXX XXXXX
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Title: General Counsel
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e.spire FINANCE CORPORATION
By: /s/ XXXXXXX X. XXXXXX
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Title: Chief Financial Officer
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LENDERS:
XXXXXXX SACHS CREDIT PARTNERS L.P.,
individually, as Arranger and as Syndication
Agent
By: /s/ [SIG]
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Title: AUTHORIZED SIGNATORY
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THE BANK OF NEW YORK, individually and as
Administrative Agent
By: /s/ XXXXX XXXXXXXXX
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Title: XXXXX XXXXXXXXX, VICE PRESIDENT
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CIT LENDING SERVICES CORPORATION, individually
and as Collateral Agent
By: /s/ [SIG]
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Title: Vice President
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BANKERS LIFE AND CASUALTY COMPANY
By: /s/ [SIG]
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Title: VICE PRESIDENT
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by Conseco Capital Management, Inc.
acting as Investment Advisor.
XXXXXXX FINANCIAL SERVICES CORPORATION
By: /s/ XXXXXXX X. XXXXXXXX
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Title: Xxxxxxx X. Xxxxxxxx
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Vice President
CONSECO ANNUITY ASSURANCE COMPANY
By: /s/ [SIG]
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Title: Vice President
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by Conseco Capital Management, Inc.
acting as Investment Advisor.
DEUTSCHE BANK AG NEW YORK BRANCH
By: /s/ XXXXXXX XXXX
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Title: Director
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By: /s/ XXXXXX XXXXX
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Title: Associate
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XXXXXXXX XXXXXXX XXXXXXXXXXX
By: /s/ [SIG]
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Title: V. P.
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FRANKLIN FLOATING RATE TRUST
By: /s/ XXXXXXXX XXXXXX
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Title: Vice President
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XXXXXXX XXXXX GLOBAL INVESTMENT SERIES
INCOME STRATEGIES PORTFOLIO
By: Xxxxxxx Xxxxx Investment Managers,
L.P., as Investment Advisor
By: /s/ XXXXXX X. XXXXXX
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Title: XXXXXX X. XXXXXX
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AUTHORIZED SIGNATORY
XXXXXXX XXXXX SENIOR FLOATING RATE FUND INC.
By: /s/ XXXXXX X. XXXXXX
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Title: XXXXXX X. XXXXXX
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AUTHORIZED SIGNATORY
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FOR PURPOSES OF SECTION 3 ONLY:
SUBSIDIARY GUARANTORS:
e.spire LEASING CORPORATION
e.spireDATA, INC.
ACSI LOCAL SWITCHED SERVICES, INC.
ACSI LOCAL SWITCHED SERVICES OF VIRGINIA,
INC.
ACSI LONG DISTANCE, INC.
ACSI NETWORK TECHNOLOGIES, INC.
AMERICAN COMMUNICATION SERVICES OF
ALBUQUERQUE, INC.
AMERICAN COMMUNICATION SERVICES OF AMARILLO,
INC.
AMERICAN COMMUNICATION SERVICES OF ATLANTA,
INC.
AMERICAN COMMUNICATION SERVICES OF AUSTIN,
INC.
AMERICAN COMMUNICATION SERVICES OF BATON
ROUGE, INC.
AMERICAN COMMUNICATION SERVICES OF
BIRMINGHAM, INC.
AMERICAN COMMUNICATION SERVICES OF BOISE,
INC.
AMERICAN COMMUNICATION SERVICES OF
CHARLESTON, INC.
AMERICAN COMMUNICATION SERVICES OF
CHATTANOOGA, INC.
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AMERICAN COMMUNICATION SERVICES OF COLORADO
SPRINGS, INC.
AMERICAN COMMUNICATION SERVICES OF COLUMBIA,
INC.
AMERICAN COMMUNICATION SERVICES OF COLUMBUS,
INC.
AMERICAN COMMUNICATION SERVICES OF CORPUS
CHRISTI, INC.
AMERICAN COMMUNICATION SERVICES OF DALLAS,
INC.
AMERICAN COMMUNICATION SERVICES OF D.C., INC.
AMERICAN COMMUNICATION SERVICES OF EL PASO,
INC.
AMERICAN COMMUNICATION SERVICES OF FORT
WORTH, INC.
AMERICAN COMMUNICATION SERVICES OF
GREENVILLE, INC.
AMERICAN COMMUNICATION SERVICES OF
HUNTSVILLE, INC.
AMERICAN COMMUNICATION SERVICES OF IRVING,
INC.
AMERICAN COMMUNICATION SERVICES OF XXXXXXX,
INC.
AMERICAN COMMUNICATION SERVICES OF
JACKSONVILLE, INC.
AMERICAN COMMUNICATION SERVICES OF KANSAS
CITY, INC.
AMERICAN COMMUNICATION SERVICES OF LAS
VEGAS, INC.
AMERICAN COMMUNICATION SERVICES OF
LEXINGTON, INC.
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AMERICAN COMMUNICATION SERVICES OF LITTLE
ROCK, INC.
AMERICAN COMMUNICATION SERVICES, OF
LOUISIANA, INC.
AMERICAN COMMUNICATION SERVICES OF
LOUISVILLE, INC.
AMERICAN COMMUNICATION SERVICES OF LUBBOCK,
INC.
AMERICAN COMMUNICATION SERVICES OF MARYLAND,
INC.
AMERICAN COMMUNICATION SERVICES OF MIAMI,
INC.
AMERICAN COMMUNICATION SERVICES OF MOBILE,
INC.
AMERICAN COMMUNICATION SERVICES OF
XXXXXXXXXX, INC.
AMERICAN COMMUNICATION SERVICES OF PIMA
COUNTY, INC.
AMERICAN COMMUNICATION SERVICES OF RIO
RANCHO, INC.
AMERICAN COMMUNICATION SERVICES OF ROANOKE,
INC.
AMERICAN COMMUNICATION SERVICES OF SAN
ANTONIO, INC.
AMERICAN COMMUNICATION SERVICES OF SAVANNAH,
INC.
AMERICAN COMMUNICATION SERVICES OF
SHREVEPORT, INC.
AMERICAN COMMUNICATION SERVICES OF
SPARTANBURG, INC.
AMERICAN COMMUNICATION SERVICES OF TAMPA,
INC.
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AMERICAN COMMUNICATION SERVICES OF TULSA,
INC.
AMERICAN COMMUNICATION SERVICES OF VIRGINIA,
INC.
AMERICAN COMMUNICATION SERVICES OF
WILMINGTON, INC.
AMERICAN COMMUNICATIONS SERVICES
INTERNATIONAL, INC.
CYBERGATE, INC.
FLORIDANET, INC.
Each by: /s/ XXXXXXX X. XXXXXX
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Name:
Title: Authorized Signatory of each of the
foregoing Subsidiary Guarantors
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