EXHIBIT 10.7
EXECUTION COPY
STANDSTILL AGREEMENT NO. 6
Dated as of November 12, 2002
STANDSTILL AGREEMENT NO. 6 (this "AGREEMENT") in respect of the
Amended and Restated Credit Agreement, dated as of September 24, 2001 (as
amended, amended and restated, supplemented or otherwise modified from time to
time, the "CREDIT AGREEMENT"), among Genuity Inc. (the "BORROWER"), the lenders
and agents party thereto, and JPMorgan Chase Bank (formerly known as The Chase
Manhattan Bank), as Administrative Agent (the "Agent"). Capitalized terms not
otherwise defined herein shall have the same meanings as specified therefor in
the Credit Agreement.
PRELIMINARY STATEMENTS
(1) Certain Events of Default have occurred and are continuing
under (a) Section 6.01(g) of the Credit Agreement as a result of the conversion
by Verizon of all but one of its Class B common shares of the Borrower into
Class A Shares (such Events of Default, the "CONVERSION DEFAULTS") and (b)
Section 6.01(c) of the Credit Agreement attributable to events relating to
insolvency or similar proceedings of (including, without limitation, the
financial condition, payment of taxes by, or solvency of) Integra S.A., a 93%
owned subsidiary of the Borrower organized under the laws of France (such Events
of Default, the "INTEGRA DEFAULTS", and collectively with the Conversion
Defaults, the "EXISTING DEFAULTS").
(2) The Borrower has requested that the Lenders agree not to
exercise any of their rights and remedies under the Credit Agreement based upon
the occurrence and continuance of the Existing Defaults or in respect of the
Revolving Credit Advance in the amount of $722,500,000 made by certain Lenders
to the Borrower on July 22, 2002, which amount has been reduced to $522,500,000
(the "ADVANCE") as a condition to the effectiveness of the Standstill Agreement
dated as of July 29, 2002, the Standstill Agreement No. 2 dated as of August 13,
2002, the Standstill Agreement No. 3 dated as of September 12, 2002, the
Standstill Agreement No. 4 dated as of October 11, 2002, and the Standstill
Agreement No. 5 dated as of October 26, 2002, in each case during the Standstill
Period.
(3) The Required Lenders have indicated their willingness to agree
to forbear from exercising any rights and remedies under the Credit Agreement
based on the occurrence and continuance of the Existing Defaults or that would
otherwise be immediately available to the Lenders, in consideration of the
agreements of the Borrower and the Guarantors set forth in this Agreement and on
the terms and subject to the satisfaction of the conditions set forth herein.
NOW, THEREFORE, in consideration of the premises, and of the mutual
covenants and agreements contained herein, the parties hereto hereby agree as
follows:
SECTION 1. STANDSTILL; FUNDS TRANSFER PROCESSING. During the period
(the "STANDSTILL PERIOD") commencing upon the occurrence of the Effective Date
(as defined below) and ending on the earlier to occur of (a) 5:00 pm (New York
time) on November 22, 2002 and (b) the rescission of the standstill described in
this Section 1 pursuant to Section 3 (such earlier date being the "TERMINATION
DATE"), each Lender and the Agent agrees (i) with respect to the Existing
Defaults that it will not exercise any of its rights or remedies under or with
respect to the Credit Agreement or any Note, including, without limitation, any
right to declare the Notes, all interest thereon and all other amounts payable
under the Credit Agreement to be forthwith due and payable, any Guaranty or any
other agreement, document or instrument executed and delivered in connection
with the Credit Agreement or a Guaranty (collectively
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with the Credit Agreement, the Notes and the Guaranty, the "CREDIT DOCUMENTS")
and (ii) that it will not commence or file any suit, proceeding or litigation in
any court, governmental agency or arbitrator against the Borrower or any of its
Subsidiaries in any way relating to the Credit Documents or the Advance. On the
Termination Date without any further action by the Agent or any Lender, all of
the terms and provisions set forth in the Credit Agreement with respect to the
Existing Defaults shall have the same force and effect as if this Agreement had
not been entered into by the parties hereto, and the Agent and each of the
Lenders shall have all of the rights and remedies afforded to them under the
Credit Agreement and applicable law with respect to the Existing Defaults as
though no standstill had been granted by them hereunder. Nothing in this Section
1 shall affect the rights and remedies of the Agent and the Lenders under or in
connection with the Credit Agreement with respect to any Event of Default, other
than the Existing Defaults, or any other event or occurrence. Further, the
Lenders and the Agent undertake hereby, at all times during the Standstill
Period, to process all transfers of funds to or for the benefit of the Borrower
or any of its Subsidiaries during the course of each Business Day in a time
frame consistent with commercially reasonable, normal banking practices
applicable to funds transfers generally (it being understood that neither the
Agent nor any Lender shall be required to incur any material increased risk in
excess of levels existing on or prior to July 22, 2002, in connection with this
undertaking).
SECTION 2. AGREEMENTS BY BORROWER. During the Standstill Period, the
Borrower agrees that:
(a) it shall not permit the aggregate amount of cash expended or
paid in excess of cash received, in each case in an aggregate amount by the
Borrower and its Subsidiaries, on a consolidated basis during the Standstill
Period, to exceed $27,300,000; PROVIDED that notwithstanding the forgoing, the
payments previously disclosed to the Agent and the Lenders in writing may also
be made during the Standstill Period (which payments the Borrower represents and
warrants will be made in the ordinary course of business and in a manner that is
no sooner than is consistent with past practice);
(b) subject to Section 2(d) and 4(a) hereof, it shall, at all
times during the Standstill Period, with respect to the proceeds of the Advance,
(i) maintain all such proceeds in the deposit or security accounts in which such
proceeds are currently deposited and (ii) not use or expend the amounts in such
accounts for any purpose (it being understood that such amounts are and may
continue to be invested in short-term money market funds during such period);
(c) amounts repaid pursuant to Section 2(d) and 4(a) hereof may
not be reborrowed; and
(d) if, at any time during the Standstill Period, Deutsche Bank AG
New York Branch ("DEUTSCHE BANK") makes available for the account of the
Borrower, in readily available funds at such account as may be designated by the
Borrower, an amount equal to $127,500,000 (the "DEUTSCHE BANK FUNDING"; such
amount representing Deutsche Bank's ratable share of the $850,000,000 Revolving
Credit Advance requested by the Borrower to be made on July 22, 2002, and
constituting for all purposes hereunder when made a portion of the Advance), the
Borrower shall by no later than the next Business Day thereafter repay to the
Agent, for the benefit of Deutsche Bank, an aggregate principal amount of
$36,758,823; such amount being a voluntary repayment of an equivalent portion of
the Deutsche Bank Funding (it being understood that the Deutsche Bank Funding
may alternatively be made by Deutsche Bank net of $36,758,823).
SECTION 3. RESCISSION. The standstill provisions of Section 1 and the
waiver in Section 6 may upon notice to the Borrower be rescinded by the Required
Lenders or by the Agent (acting with the consent or at the direction of the
Required Lenders) on, and effective as of 9:00 am (New York time) on:
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(a) the date on which any Event of Default (other than an Existing
Default) occurs;
(b) the date on which the Borrower has not complied with any of
the requirements set forth in Section 2 hereof;
(c) the date on which (i) the Borrower or any of its Subsidiaries
pays any sum in excess of $100,000,000 pursuant to any judgment or order
for the payment of money which has been rendered against the Borrower or
such Subsidiary or (ii) any lien or attachment (other than in favor of the
Agent or any Lender) on any material portion of any material assets or
property of the Borrower or any of its Material Subsidiaries has occurred
pursuant to any foreclosure proceeding or otherwise;
(d) the date on which Verizon or any of its Subsidiaries or
affiliates (i) commences or files any suit, proceeding or litigation in any
court, governmental agency or arbitrator against or affecting the Borrower
in any way relating to the lending arrangements between Verizon and the
Borrower, (ii) receives any payment from or on behalf of the Borrower
pursuant to Verizon's credit facility with the Borrower, or exercises any
rights or remedies under or in respect of such credit facility or (iii)
breaches any obligation of a material nature under, or terminates, any
material contract or agreement with the Borrower;
(e) the date on which the Borrower or any of its Subsidiaries
commences or files any suit, proceeding or litigation in any court,
governmental agency or arbitrator against any of the undersigned Lenders or
their affiliates under or in connection with the Credit Agreement
(excluding, for the avoidance of doubt, any such action against Deutsche
Bank);
(f) the date on which the Borrower declares or pays any dividends,
or purchases, redeems, retires, defeases or otherwise acquires for value
any of its equity interests now or hereafter outstanding, or returns any
capital to its stockholders, or makes any distribution of assets, equity
interests, obligations or securities to its stockholders; in any case under
this clause (f) in an aggregate amount in excess of $10,000; or
(g) the date on which the Borrower prepays, redeems, purchases,
defeases or otherwise satisfies prior to the scheduled maturity thereof in
any manner, or makes any payment in violation of any subordination terms
of, any Debt, or permits any of its Subsidiaries to do any of the
foregoing, other than (i) the prepayment of the Advances in accordance with
the terms of this Agreement and (ii) the payment of cash-on-delivery
charges to trade creditors in the ordinary course of business.
SECTION 4. CONDITIONS OF EFFECTIVENESS OF THIS AGREEMENT. This
Agreement shall become effective as of the first date (the "EFFECTIVE DATE")
that (i) the Agent and the Borrower shall have received counterparts of this
Agreement executed by the Borrower, each Guarantor, the Agent and the Required
Lenders and (ii) each of the following conditions precedent shall have been
satisfied:
(a) The Borrower shall have paid to the Agent, for the benefit of
each of the Lenders listed in Schedule I hereto, an aggregate principal
amount of $8,300,000; such amount being a voluntary repayment of an
aggregate principal amount of $8,300,000 of the Advance.
(b) No event shall have occurred and be continuing that
constitutes a Default, other than the Existing Defaults.
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(c) Verizon shall have executed and delivered a standstill
agreement, in form and substance satisfactory to the Agent, agreeing to
forbear from taking actions of the type specified in Section 3(d) for so
long as the standstill provisions under Section 1, and the waiver in
Section 6, are in full force and effect.
(d) The Borrower shall have paid all fees and expenses of the
Agent which have been invoiced on or prior to the date hereof (including
the accrued fees and expenses and retainers of all counsel and the
financial adviser to the Agent).
SECTION 5. [Reserved].
SECTION 6. WAIVER. During the Standstill Period, the Required Lenders
agree to waive, solely with respect to the Integra Defaults, the applicable
requirements of Article V of the Credit Agreement. On and after the Termination
Date, without any further action by the Agent or any Lender, all of the terms
and provisions set forth in the Credit Agreement with respect to Integra
Defaults thereunder that are waived hereunder shall have the same force and
effect as if this Agreement had not been entered into by the parties hereto, and
the Agent and the Lenders shall have all of the rights and remedies afforded to
them under the Credit Documents with respect to any such Defaults as though no
waiver had been granted by them hereunder.
SECTION 7. RESERVATION OF RIGHTS. On and after the Termination Date,
the Agent and each of the Lenders reserve the right to exercise any and all
available rights and remedies under the Credit Documents, applicable law and
general principles of equity at any time and from time to time arising from or
in any way related to the Advance, the Existing Defaults, any other Default or
Event of Default which has occurred under or in respect of the Credit Documents
or any other document or agreement to which the Agent or any Lender is a party,
or any other event or occurrence.
SECTION 8. ACKNOWLEDGMENT. (a) The Lenders acknowledge that (i)
Deutsche Bank shall not be entitled to receive any portion of the proceeds paid
by the Borrower to the Agent for the benefit of the Lenders specified on
Schedule I hereto pursuant to Section 4(a) hereof, and (ii) none of the Lenders
specified on Schedule I hereto shall be entitled to receive any portion of the
proceeds paid by the Borrower to the Agent for the benefit of Deutsche Bank
pursuant to Section 2(d) hereof, as applicable.
(b) Each of the Borrower and the Guarantors acknowledges that (i)
certain Events of Default (A) have occurred and are continuing under Section
6.01(g) of the Credit Agreement as a result of the Conversion Defaults and (B)
are expected to occur and be continuing during the Standstill Period under
Section 6.01(c) of the Credit Agreement as a result of the Integra Defaults and
(ii) an aggregate principal amount of $522,500,000 in respect of the Revolving
Credit Advance made by the Lenders on Schedule I hereto on July 22, 2002 is
outstanding on the date hereof under the Credit Agreement (prior to giving
effect to the payments made pursuant to Section 4(a) hereof).
SECTION 9. NO COMMITMENT. Neither this Agreement nor any action or
inaction on the part of the Agent or any of the Lenders shall be construed to
constitute or represent a commitment by the Agent or any Lender to restructure
or refinance the Credit Agreement or any other Debt of the Borrower.
SECTION 10. EFFECT ON THE CREDIT AGREEMENT; NOTICE. The Borrower and
each Guarantor acknowledges and agrees that the Credit Agreement, the Notes,
each Guaranty and all other Credit Documents, except to the extent of the
modifications specifically provided above, (i) are and shall continue to be in
full force and effect and (ii) are hereby in all respects ratified and
confirmed. The Borrower agrees to give prompt notice to the Agent (which will
give prompt notice thereof to all Lenders) of the occurrence of any event
specified in Section 3.
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SECTION 11. AMENDMENTS; ETC. No amendment or waiver of any provision
of this Agreement, nor consent to any departure by any party hereto therefrom,
shall in any event be effective unless the same shall be in writing and signed
by the Borrower, the Agent and the Required Lenders, and then such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given.
SECTION 12. EXECUTION IN COUNTERPARTS. This Agreement may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
Delivery of an executed counterpart of a signature page to this Agreement by
telecopier shall be effective as delivery of a manually executed counterpart of
this Agreement.
SECTION 13. GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York.
SECTION 14. WAIVER OF JURY TRIAL; SUBMISSION TO JURISDICTION; ETC.
Each of the Borrower, the Agent and the Lenders (i) irrevocably waives all right
to trial by jury in any action, proceeding or counterclaim (whether based on
contract, tort or otherwise) arising out of or relating to this Agreement or the
actions of the Agent or any Lender in the negotiation, administration,
performance or enforcement hereof and (ii) agree that Section 8.10 of the Credit
Agreement shall apply to this Agreement to the same extent as specified therein.
SECTION 15. AMENDMENT AND RESTATEMENT. This Agreement amends and
restates in its entirety the Standstill Agreement No. 5 dated as of October 26,
2002 among the parties hereto.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
GENUITY INC., as Borrower
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chairman and Chief Executive Officer
GENUITY SOLUTIONS INC., as Guarantor
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chairman and Chief Executive Officer
GENUITY TELECOM INC., as Guarantor
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chairman and Chief Executive Officer
AGREED AND ACCEPTED
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ Bank (formerly known as The
Chase Manhattan Bank), as Administrative Agent
and as Lender
By /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
CITICORP USA INC.
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By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
CREDIT SUISSE FIRST BOSTON
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By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Director
BNP PARIBAS
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By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
THE BANK OF NEW YORK
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By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇.
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇.
Title: Senior Vice President
MIZUHO CORPORATE BANK, LTD.
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By /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: General Manager
TORONTO DOMINION (TEXAS), INC.
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By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
WACHOVIA BANK, NATIONAL ASSOCIATION
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By /s/ C. ▇▇▇▇ ▇▇▇▇▇▇▇
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Name: C. ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director
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SCHEDULE I
REPAYMENT AMOUNTS
LENDER REPAYMENT AMOUNT
------------------------------- ----------------
JPMorgan Chase Bank $ 2,441,176.47
Citicorp USA Inc. $ 1,464,705.89
Credit Suisse First Boston $ 1,464,705.89
BNP Paribas $ 976,470.59
The Bank of New York $ 488,235.29
Mizuho Corporate Bank $ 488,235.29
Toronto Dominion (Texas) Inc. $ 488,235.29
Wachovia Bank, N.A. $ 488,235.29
TOTAL $ 8,300,000.00