Exhibit 10.2
EXECUTION COPY
STANDSTILL AGREEMENT
Dated as of July 29, 2002
STANDSTILL AGREEMENT (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 ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ 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 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 "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 (the "ADVANCE"), in each case during the
Standstill Period (as hereinafter defined).
(3) The Required Lenders have indicated their willingness to agree
to the standstill described above in these Preliminary Statements 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 August 12, 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 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 or affecting the Borrower 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
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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 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.
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 $40,000,000; PROVIDED that such amount shall be reduced to
$13,000,000 if at any time during the Standstill Period the Borrower or any of
its Subsidiaries receives the $27,000,000 cash payment which is due from AOL
Time Warner; PROVIDED further that notwithstanding the foregoing limitations,
the payments listed on Schedule II 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
$17,647,058; 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 $17,647,058).
SECTION 3. RESCISSION. The standstill provisions of Section 1 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:
(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;
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(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; or
(d) the date on which Verizon or any of its Subsidiaries or
affiliates 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.
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 $100,000,000; such amount being a voluntary repayment of an
aggregate principal amount of $100,000,000 of the Advance.
(b) No event shall have occurred and be continuing that
constitutes a Default, other than the Existing Defaults.
SECTION 5. 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 6. ACKNOWLEDGMENT. 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.
SECTION 7. 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 8. EFFECT ON THE CREDIT AGREEMENT; NOTICE. 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
of the occurrence of any event specified in Section 3.
SECTION 9. 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
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then such waiver or consent shall be effective only in the specific instance and
for the specific purpose for which given.
SECTION 10. 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 11. GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York.
SECTION 12. 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.
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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: Executive Vice President and
Chief Financial Officer
GENUITY SOLUTIONS INC., as Guarantor
By /s/ ▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
Title: Executive Vice President and
Chief Financial Officer
GENUITY TELECOM INC., as Guarantor
By /s/ ▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
Title: Executive Vice President and
Chief Financial 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: Vice President
BNP PARIBAS
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By /s/ ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇
Title: Managing Director
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
THE BANK OF NEW YORK
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By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President
CITICORP USA INC.
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By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President and Managing Director
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
MIZUHO CORPORATE BANK, LTD.
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By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President
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
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JPMorgan Chase Bank $ 29,411,764.72
Citicorp USA Inc. $ 17,647,058.82
Credit Suisse First Boston $ 17,647,058.82
BNP Paribas $ 11,764,705.88
The Bank of New York $ 5,882,352.94
Mizuho Corporate Bank $ 5,882,352.94
Toronto Dominion (Texas) Inc. $ 5,882,352.94
Wachovia Bank, N.A. $ 5,882,352.94
TOTAL $ 100,000,000.00
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SCHEDULE II
CERTAIN PAYMENTS
Qwest Communications Inc. - $25,000,000
SBC Communications Inc. - $12,571,402.61
WorldCom Inc. - $7,955,068.75