Execution Copy
AMENDMENT, CONSENT AND WAIVER
This AMENDMENT, CONSENT AND WAIVER (this "Amendment, Consent and Waiver")
dated as of December 30, 2002, but effective as of November 27, 2002, 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 ("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 (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, 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, Exhibit and Schedule References.
Capitalized terms used but not otherwise defined herein shall have the meanings
specified in the Purchase Agreement, as amended hereby. Except where expressly
noted, references contained herein to Sections, Exhibits and Schedules refer to
Sections, Exhibits and Schedules of the Purchase Agreement.
Section. 2. Amendment of Schedule 1.3. Schedule 1.3 is hereby amended to
include as item 2 thereof the Excluded FCC Licenses and the Other
Non-Transferred FCC Licenses.
Section. 3. Amendment of Section 3.12(b). The last two sentences of Section
3.12(b) (including subparagraphs (i), (ii), and (iii) thereof) are amended to
provide that the representations and warranties contained therein with respect
to the Other Non-Transferred FCC Licenses are made solely as of November 27,
2002, notwithstanding any deemed representation or warranty as of a later date
pursuant to Section 7.2(a) or any other provision of the Agreement.
Section. 4. Acknowledgement and Consent Regarding Section 5.1(b)(i). It is
hereby acknowledged, and Parent and Purchaser hereby consent, that Sellers'
receipt, acceptance and performance of service orders placed under a Section 5.1
Agreement as in effect on the date of the Purchase Agreement that are consistent
in amount and type of services with service orders previously delivered under
such Section 5.1 Agreement shall not constitute a
material amendment or modification of such Section 5.1 Agreement for purposes of
Section 5.1(b)(i).
Section. 5. Deletion of Section 5.1(b)(ii)(D). Section 5.1(b)(ii)(D) is
hereby deleted in its entirety.
Section. 6. Amendment of Section 5.1(b)(iii). Section 5.1(b)(iii) is hereby
amended and restated in its entirety as follows:
"(iii) Sellers shall not allow or suffer to terminate any Section 5.1
Agreement other than upon conclusion of its stated term."
Section. 7. Certain Amendments and Waivers of Section 5.1 With Respect to
Other Non-Transferred Licenses.
(a) Section 5.1(c)(iii) is hereby amended to insert at the beginning
thereof, "except with respect to the Other Non-Transferred FCC Licenses,";
and
(b) Sections 5.1(a), (c)(ii), d(v), and d(vi) are hereby waived with
respect to any abandonment, relinquishment, voluntary termination or waiver
of any Other Non-Transferred FCC Licenses (a "License Termination") in
which the only breach of the Agreement that would arise out of the License
Termination is the License Termination itself and not any of its
consequences.
Section. 8. Partial Waiver of Section 5.1(d)(iii) for Service Orders of
Less Than $100,000. The compliance by Sellers with Section 5.1(d)(iii) with
respect to service orders for an amount relating to the period after the Closing
Date of less than $100,000 is hereby waived.
Section. 9. Correction of Error in Section 5.1(d)(iv). The word "not"
included as the first word of Section 5.1(d)(iv) was included in such Section in
error, and the parties hereto agree that the Purchase Agreement should be
interpreted as if such word was not included therein, and such word is hereby
deleted.
Section. 10. Waiver of Section 5.1(d)(iv)(A). Sellers' compliance with
Section 5.1(d)(iv)(A) is hereby waived, subject to Sellers providing Purchaser
with notice of any new, or of any renewal of any, Contract or Lease of the kind
described in Section5.1(d)(iv)(A), in each case no later than three (3) Business
Days after entering into or renewing such Contract or Lease.
Section. 11. Partial Waiver of Section 5.1(d)(iv)(C). Sellers' compliance
with Section 5.1(d)(iv)(C) is hereby waived with respect to service orders
placed under Sellers' General Services Administration agreement or schedule.
Section. 12. Change of Notice Party in Section 5.1(e). The reference to
ira.parker@genuity.com at the end of Section 5.1(e) is hereby changed to
ehill@genuity.com.
Section. 13. Amendment of Section 5.1(f). The parenthetical in Section
5.1(f) is hereby deleted in its entirety and the following is substituted
therefor:
"(other than a denial of a request for a waiver or consent)".
Section. 14. Amendment of Section 6.10(a). The second sentence of Section
6.10(a) is hereby deleted in its entirety and the following is substituted
therefor:
"On or before December 16, 2002, Sellers and Purchaser shall
file, or cause to be filed, the FCC Applications."
Section. 15. Amendment of Schedules 7.1(f) and 7.2(g). Schedule 7.1(f) and
Schedule 7.2(g) are hereby amended in their entirety to be as set forth on
Exhibits A and B hereto, respectively.
Section. 16. Amendment of Exhibit A. Exhibit A to the Purchase Agreement is
hereby amended to:
(a) delete the defined term "Renewal Request".
(b) include the following defined terms:
(i) "Excluded FCC Licenses" means the following Federal
Communication Commission licenses:
(A) Submarine Cable Landing License for Americas-II
cable, File No. SCL-98-003/SLC-98-003A, licensed by Genuity
Telecom Inc.
(B Submarine Cable Landing License for TAT-14 cable,
File No. SCL-LIC-19990303-00004, licensed by Genuity
Networks Inc.
(C) Submarine Cable Landing License for Japan-US Cable
Network, File No. SCL-LIC-19981117-00025, licensed by
Genuity Networks Inc.
(D) Microwave Industrial / Business Pool, File No.
WPQY302, licensed by Genuity Solutions Inc.
(E) Microwave Industrial / Business Pool, File No.
WPQY304, licensed by Genuity Solutions Inc.
(F) Microwave Industrial / Business Pool, File No.
WPQY455, licensed by Genuity Solutions Inc.
(ii) "FCC" means the U.S. Federal Communications Commission.
(iii) "Other Non-Transferred FCC Licenses" means all FCC
licenses listed on Item 2 of Schedule 3.12(b)-1 that are not
listed on Schedule 7.2(g), other than Excluded FCC Licenses.
(iv) "State PUCs" means state and local public service and
public utilities commissions or franchise authorities in each
applicable jurisdiction.
(c) amend and restate the defined term "Excluded Matters" in its
entirety as follows:
"Excluded Matters" means the Excluded Assets, the Excluded
Liabilities that are not Transition Matters or Other Non-Transferred
FCC Licenses, and do not arise out of Transition Matters or Other
Non-Transferred FCC Licenses.
Section. 17. Amendment of Exhibit F. Exhibit F to the Purchase Agreement is
hereby amended in its entirety to be as set forth on Exhibit C hereto. In
addition, the provisions of Section 6.7(c) are deemed to be satisfied, and the
provisions of Section 12.1(e)(iv) are waived with respect to any right to
terminate the Agreement arising out of the fact that Exhibit C to this
Amendment, Consent and Waiver differs from Exhibit F as it existed prior to this
Amendment, Consent and Waiver. 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 Bidding Procedures Order shall refer to
Exhibit F, as amended hereby.
Section. 18. No Breach with Respect to Excluded FCC Licenses. For the
avoidance of doubt, each of Parent and Purchaser hereby acknowledge and agree
that no representation or warranty is made in the Purchase Agreement with
respect to the Excluded FCC Licenses, and the termination, cancellation or
relinquishment, or transfer or other disposition, of the Excluded FCC Licenses
(and any filings and motions filed with the Bankruptcy Court in connection with
the foregoing) shall not constitute a breach of any provision of the Purchase
Agreement.
Section. 19. Effectiveness of Amendment, Consent and Waiver. This
Amendment, Consent and Waiver shall not become effective until it is
countersigned below by all of the parties listed on the signature pages hereto,
and upon such countersignature this Amendment, Consent and Waiver shall be
deemed to have become effective as of the date of the Purchase Agreement.
Section. 20. Limitation on Consent. This Amendment, Consent and Waiver 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 Amendment, Consent and Waiver
constituted a breach of both a provision amended, waived or deleted hereby and
another provision of the Purchase Agreement, following this Amendment, Consent
and Waiver such action would still constitute a breach of such other provision.
Section. 21. 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.
IN WITNESS WHEREOF, Sellers, Purchaser and Parent have executed and
delivered this Amendment, Consent and Waiver as of the day and year first
written above.
LEVEL 3 COMMUNICATIONS, LLC
By: /s/ Thomas Boasberg
Name: Thomas Boasberg
Title: Senior Vice President
LEVEL 3 COMMUNICATIONS, INC.
By: /s/ Neil J. Eckstein
Name: Neil J. Eckstein
Title: Vice President and Assistant General
Counsel
GENUITY INC.
By: /s/ Daniel P. O'Brien
Name: Daniel P. O'Brien
Title: Vice President and Chief Financial Officer
GENUITY INTERNATIONAL INC.
By: /s/ Daniel P. O'Brien
Name: Daniel P. O'Brien
Title: Vice President and Chief Financial Officer
GENUITY INTERNATIONAL
NETWORKS INC.
By: /s/ Daniel P. O'Brien
Name: Daniel P. O'Brien
Title: Vice President and Chief Financial Officer
GENUITY SOLUTIONS INC.
By: /s/ Daniel P. O'Brien
Name: Daniel P. O'Brien
Title: Vice President and Chief Financial Officer
GENUITY TELECOM INC.
By: /s/ Daniel P. O'Brien
Name: Daniel P. O'Brien
Title: Vice President and Chief Financial Officer
GENUITY EMPLOYEE HOLDINGS LLC
By: /s/ Daniel P. O'Brien
Name: Daniel P. O'Brien
Title: Manager