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EXHIBIT 10.58
EXECUTION
LOAN PUT MODIFICATION AGREEMENT
This LOAN PUT MODIFICATION AGREEMENT (this "MODIFICATION AGREEMENT"),
dated as of November 13, 2000, is entered into by and among The Xxxx
Alternative Income Fund, L.P., a Delaware limited partnership ("FUND"), each
of the financial institutions listed on the signature pages hereof
("LENDERS"), and The Bank of New York, as Administrative Agent for Lenders (in
such capacity, "ADMINISTRATIVE AGENT"), and is made with reference to that
certain Loan Put Agreement, dated as of September 19, 2000 (the "LOAN PUT
Agreement"), by and among Fund, the Lenders and the Administrative Agent. All
capitalized terms used herein without definition shall have the meanings
herein as set forth in the Loan Put Agreement.
RECITALS
WHEREAS, e.spire Communications, Inc., a Delaware corporation
("COMPANY"), e.spire Finance Corporation, a Delaware corporation ("FINANCE
SUB"; Finance Sub and Company collectively referred to as "BORROWERS"), the
Lenders, Xxxxxxx Sachs Credit Partners L.P., as sole Lead Arranger and
Syndication Agent, the Administrative Agent, and CIT Lending Services
Corporation, as Collateral Agent, and certain subsidiaries of Finance Sub are
currently herewith entering into that certain First Amendment to the First
Amended and Restated Credit Agreement, dated of even date herewith (the "FIRST
AMENDMENT"), which amends certain provisions of that certain First Amended and
Restated Credit Agreement, dated as of September 19, 2000 (such agreement as
amended, the "CREDIT AGREEMENT"), by and among the Borrowers, the Lenders, the
Administrative Agent and the other agents party thereto; and
WHEREAS, Fund expects to receive direct and indirect benefits from
Lenders agreeing to enter into the First Amendment and, accordingly, Fund has
agreed to enter into this Modification Agreement with Lenders and
Administrative Agent; and
WHEREAS, the execution and delivery of this Modification Agreement and
the performance of Fund's obligations hereunder, is a condition to the
effectiveness of the First Amendment;
NOW, THEREFORE, in consideration of the foregoing premises and in
order to induce Lenders to enter into the First Amendment, and for other good
and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, Fund agrees with Lenders and Administrative Agent as follows:
1. MODIFICATION AGREEMENTS. Notwithstanding anything in the Loan
Put Agreement to the contrary, the parties hereby agree as follows:
(a) The Put Effectiveness Date has occurred.
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(b) The Lenders hereby give notice of their exercise of the
Put Right. The Put Exercise Amount is $24,300,000 and the Put Exercise Date
shall be [December 8, 2000]. This Modification Agreement shall be deemed to
constitute the Notice of Occurrence required under Section 2(a) of the Loan
Put Agreement.
(c) Fund hereby agrees, subject only to the conditions set
forth in Section 2(d) of the Loan Put Agreement, to purchase the Assigned
Loans at par in an amount equal to the Put Exercise Amount on the Put Exercise
Date specified in paragraph (b) above, unless all outstanding Obligations (as
such term is defined in the Credit Agreement) under the Credit Agreement have
been paid in full on or prior to the Put Exercise Date. Fund expressly waives
any right under the Loan Put Agreement to purchase securities qualifying as
Required Junior Capital in lieu of Assigned Loans.
(d) Lenders hereby represent and warrant to Fund that the
Credit Agreement has not been amended since September 19, 2000, other than the
First Amendment to the Amended and Restated Credit Agreement which is being
entered into on the date hereof.
2. MISCELLANEOUS.
(a) Except as expressly set forth in this Modification
Agreement, the Loan Put Agreement shall remain in full force and effect and is
hereby ratified and confirmed by the parties hereto. Fund hereby represents
and warrants to Lenders that each of the representations and warranties given
by Fund in Section 5 of the Loan Put Agreement is true and correct as of date
hereof assuming for purposes of this representation and warranty that all
references to "this Agreement" contained in Section 5 of the Loan Put
Agreement mean the Loan Put Agreement as modified by this Modification
Agreement.
(b) This Modification Agreement shall be governed by, and
construed 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 conflicts of law principles.
(c) This Modification Agreement may be executed in any
number of counterparts and by different parties hereto in separate
counterparts, each of which once so executed and delivered shall be deemed an
original, but all such counterparts together shall constitute but one in 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.
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IN WITNESS WHEREOF, the undersigned have executed and delivered
this Modification Agreement as of the date first hereinabove written.
THE XXXX ALTERNATIVE INCOME FUND, L.P.
By: WRH Partners, L.L.C.
Its: General Partner
By: /s/ X.X. XXXX
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Its:
THE BANK OF NEW YORK, individually and as
Administrative Agent
By: /S/ XXXXX XXXXXXXXX
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Name: XXXXX XXXXXXXXX
Title: VICE PRESIDENT
XXXXXXX XXXXX CREDIT PARTNERS L.P.
By: /S/ XXXXXXX XXXX
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Name: XXXXXXX XXXX
Title: AUTHORIZED SIGNATORY
CARGILL FINANCIAL SERVICES CORPORATION
By: /S/ XXXXXXX X. XXXXXXXX
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Name: XXXXXXX X. XXXXXXXX
Title: VICE PRESIDENT
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XXX XXXXXXX SERVICES CORPORATION
By: /S/ XXXX X. XXXXXX, XX
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Name: XXXX X. XXXXXX, XX
Title: VICE PRESIDENT
BANKERS LIFE AND CASUALTY COMPANY
By: /S/ XXXX XXXXXXX
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Name: Xxxx Xxxxxxx
Title: Vice President
BY CONSECO CAPITAL MANAGEMENT, INC.
ACTING AS INVESTMENT ADVISOR.
CONSECO ANNUITY ASSURANCE COMPANY
By: /S/ XXXX XXXXXXX
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Name: Xxxx Xxxxxxx
Title: Vice President
BY CONSECO CAPITAL MANAGEMENT, INC.
ACTING AS INVESTMENT ADVISOR.
DEUTSCHE BANK AG NEW YORK BRANCH
By: /S/ XXXXXXX XXXX
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Name: Xxxxxxx Xxxx
Title: Director
By: /S/ XXXXXX XXXXX
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Name: Xxxxxx Xxxxx
Title: Associate
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FOOTHILL CAPITAL CORPORATION
By: [SIG]
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Name:
Title: X.X.
XXXXXXXX FLOATING RATE TRUST
By: /S/ XXXXXXXX XXXXXX
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Name: Xxxxxxxx Xxxxxx
Title: Vice President
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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Name: Xxxxxx X. Xxxxxx
Title: Authorized Signatory
XXXXXXX XXXXX SENIOR FLOATING
RATE FUND INC.
By: /S/ XXXXXX X. XXXXXX
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Name: Xxxxxx X. Xxxxxx
Title: Authorized Signatory
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