Exhibit 10.4
THIRD AMENDMENT AND WAIVER
This THIRD AMENDMENT AND WAIVER (this "Third Amendment"), dated as of
January 31, 2003, is entered into by Level 3 Communications, Inc., a Delaware
corporation ("Parent"), Level 3 Communications, LLC, a Delaware limited
liability company and an indirect wholly owned subsidiary of Parent
("Communications LLC"), Greenland Managed Services LLC, a Delaware limited
liability company and an indirect wholly owned subsidiary of Parent (together
with Communications LLC, "Purchaser"), Genuity Inc., a Delaware corporation
("Genuity"), and the subsidiaries of Genuity listed on the signature pages
hereto (each a "Seller" and together with Genuity, including their successors,
the "Sellers").
WHEREAS, Sellers, Purchaser and Parent have entered into an Asset Purchase
Agreement, dated as of November 27, 2002, which was amended by an Amendment,
Consent and Waiver dated as of December 30, 2002 and the Second Amendment and
Waiver dated as of January 21, 2003 (the "Purchase Agreement"), relating to the
purchase and sale of certain assets and the assumption of certain liabilities
relating to the Business;
WHEREAS, Sellers, Parent and Purchaser desire to amend certain provisions
of, and certain Exhibits and Schedules to, the Purchase Agreement; and
WHEREAS, Sellers, Purchaser and Parent desire to waive certain provisions
of the Purchase Agreement, and consent to certain deviations therefrom;
NOW, THEREFORE, in consideration of the foregoing premises and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
Section 1. Definitions; Section and Exhibit References. Capitalized terms
used but not otherwise defined herein shall have the meanings specified in the
Purchase Agreement. Except where expressly noted, references contained herein to
Sections and Exhibits refer to Sections and Exhibits of the Purchase Agreement.
Section 2. Amendment of Exhibit G. Exhibit G is hereby amended and restated
in its entirety as set forth on Exhibit G hereto. In addition, (a) the
provisions of Section 6.7(d) are deemed to be satisfied with respect to the
Sellers' obligation to use their best efforts to obtain the Sale Order on or
prior to January 31, 2003, and (b) the provisions of Section 12.1(d)(vi) are
waived with respect to any right to terminate the Purchase Agreement arising out
of the fact that Exhibit G to this Third Amendment differs from Exhibit G as it
existed prior to this Third Amendment. For the avoidance of doubt, the parties
hereby acknowledge and agree that for all purposes of the Purchase Agreement,
from and after the date hereof, references to the Sale Order shall refer to
Exhibit G, as amended hereby.
Section 3. Settlement Agreement Order. The parties hereto agree that the
provisions of Section 6.7(e) are deemed to have been satisfied with respect to
Sellers' obligations to use their best efforts to obtain the Settlement
Agreement Order on or prior to January 31, 2003.
Section 4. Limitation on Consent. This Third Amendment is limited to the
express terms hereof, and nothing herein shall be deemed to be an amendment to,
consent with respect to, or waiver of, any other provision of the Purchase
Agreement, which shall remain in full force and effect. To the extent an action
would have in the absence of this Third Amendment constituted a breach of both a
provision amended, waived or deleted hereby and another provision of the
Purchase Agreement, following this Third Amendment such action would still
constitute a breach of such other provision.
Section 5. Miscellaneous. All terms and provisions contained in Article
XIII of the Purchase Agreement (other than Sections 13.4, 13.5, 13.6 and 13.13
thereof), including all related definitions, are incorporated herein by
reference to the same extent as if expressly set forth herein
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IN WITNESS WHEREOF, Sellers, Purchaser and Parent have executed and
delivered this Third Amendment and Waiver as of the day and year first written
above.
▇▇▇▇▇ ▇ COMMUNICATIONS, LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
▇▇▇▇▇ ▇ COMMUNICATIONS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
GREENLAND MANAGED SERVICES LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
GENUITY INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
Title: Executive Vice President and Chief Financial Officer
GENUITY INTERNATIONAL INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
Title: Executive Vice President and Chief Financial Officer
GENUITY INTERNATIONAL NETWORKS INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
Title: Executive Vice President and Chief Financial Officer
GENUITY SOLUTIONS INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
Title: Executive Vice President and Chief Financial Officer
GENUITY TELECOM INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
Title: Executive Vice President and Chief Financial Officer
GENUITY EMPLOYEE HOLDINGS LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
Title: Executive Vice President and Chief Financial Officer