1
AMENDMENT REGARDING FILING OF PROXY STATEMENT
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 Alternatie 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") and to the Certificate of Designation with respect to the Company's
Series A Convertible Preferred Stock.
Under the Purchase Agreements, the Final Closing must occur within 100
days of the Initial Closing, and the Investors have the right to terminate the
Purchase Agreements if Stockholder Approval is not obtained within 100 days of
the Initial Closing or if the Final Closing does not occur for any other reason
within 100 days of the Initial Closing. In addition, the Company is required to
file a proxy statement and convene a meeting seeking Stockholder Approval as
soon as practicable. In addition, under Section 3(h) of the Certificate of
Designation, the dividend rate on the outstanding shares of Series A Convertible
Preferred Stock shall be increased if Stockholder Approval is not obtained
within 100 days following the Initial Closing.
The undersigned Investors hereby agree with the Company that all
references in Sections 3(c), 10(a) and 13 of the Purchase Agreement to such 100
day period shall, from and after the date of execution of this agreement,
instead refer to a period of 150 days from and after the Issue Date. The
Investors, constituting all of the holders of the Series A Convertible Preferred
Stock, further agree that the Company may amend the Certificate of Designation
to replace the references in Section 3(h) of the Certificate of Designation to
such 100 day period with references to a 150 day period.
2
This letter agreement 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 amendment set
forth herein shall become effective upon the delivery to the Company and each
Investor of duly executed counterparts hereof by each of the Investors and by
the Company.
Except as expressly modified by this amendment, the Purchase Agreements
and Certificate of Designations shall remain in full force and effect in
accordance with their terms. This amendment is limited to the matters expressly
stated herein and no other matters and does not constitute a amendment of any
other provisions of such agreements and instruments. Notwithstanding this
amendment, the Investors' obligation to consummate the Final Closing shall
remain subject to the satisfaction of all other conditions contained in the
Purchase Agreements.
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
laws of the State of New York, without regard to conflict of laws principles.
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:
-------------------------------
Name:
Title:
GREENWICH STREET CAPITAL PARTNERS II, L.P.
By: Greenwich Street Investors II,
L.L.C., general partner
By:
-------------------------------
Name:
Title:
3
GSCP OFFSHORE FUND, L.P.
By: Greenwich Street Investors II,
L.L.C., general partner
By:
-------------------------------
Name:
Title:
GREENWICH FUND, L.P.
By: Greenwich Street Investors II,
L.L.C., general partner
By:
-------------------------------
Name:
Title:
GREENWICH STREET EMPLOYEES FUND, L.P.
By: Greenwich Street Investors II,
L.L.C., general partner
By:
-------------------------------
Name:
Title:
TRV EXECUTIVE FUND, L.P.
By: Greenwich Street Investors II,
L.L.C., general partner
By:
-------------------------------
Name:
Title:
4
THE HONEYWELL INTERNATIONAL INC. MASTER
RETIREMENT TRUST
By: WRH TELECOM PARTNERS, L.L.C.
By:
-------------------------------
Name:
Title:
Acknowledged and agreed:
E.SPIRE COMMUNICATIONS, INC.
By:
-------------------------
Name:
Title:
