Exhibit 10.2
Third Amendment to the
Credit Agreement
Dated as of September 28, 2001
(this "Third Amendment")
Reference is hereby made to that certain Credit Agreement dated as of March
5, 2001, as amended by the First Amendment thereto dated as of May 22, 2001 and
the Second Amendment thereto dated as of August 8, 2001 (as so amended, the
"Credit Agreement"), by and between Verizon Investments Inc., a Delaware
corporation (the "Lender") and Genuity Inc., a Delaware corporation (the
"Borrower" and together with the Lender, the "Parties"). Capitalized terms used
in this Third Amendment and not otherwise defined have the meaning ascribed to
them in the Credit Agreement.
WHEREAS, the Parties desire to make certain amendments and
modifications to the terms of the Credit Agreement and to enter into certain
other agreements, all as specified in this Third Amendment.
In consideration of the terms and conditions set forth in this Third
Amendment, the Parties agree as follows:
1. Facility. The Parties hereby amend and modify the "Facility" section of the
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Credit Agreement by deleting the reference to "$1,150,000,000 line of
credit (the "Facility")" in its entirety, and replacing it with the
following: "$2,000,000,000 line of credit (the "Facility")."
4. Commitment Period. The Parties hereby amend and modify the "Commitment
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Period" section of the Credit Agreement by deleting the phrase "March 8,
2001 to, but not including, December 31, 2001" in its entirety, and
replacing it with the following: "March 8, 2001 to, but not including, the
Termination Date (as such term is defined in the Five-Year Agreement)."
5. Maturity Date. The Parties hereby amend and modify the "Maturity Date"
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section of the Credit Agreement by deleting the reference to "December 31,
2001 (the "Maturity Date") in its entirety, and replacing it with the
following: "the Termination Date (as such term is defined in the Five-Year
Agreement) (the "Maturity Date")."
6. Availability. The Parties hereby amend and modify the "Availability"
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section of the Credit Agreement by deleting the phrase "$200,000,000", and
replacing it with the phrase "$100,000,000".
7. Term of Borrowing. The Parties hereby amend and modify the "Term of
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Borrowing" section of the Credit Agreement by inserting after the word
"beyond" in the second line thereof the following: "the first to occur of
90 days and".
8. Interest Rate. The Parties hereby amend and modify the "Interest Rate"
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section of the Credit Agreement by deleting the phrase "for all amounts
borrowed as long as the amounts borrowed do not exceed $1,000,000,000 and
LIBO plus 225 basis points per annum for all amounts borrowed, once the
amount borrowed is $1,000,000,000 or more but less than or equal to the
greatest amount which may be borrowed under the Facility" in its entirety,
and replacing it with the following: "during such time that the principal
amount borrowed under the Facility shall be less than $1,000,000,000 and
LIBO plus 225 basis points per annum during such time that the principal
amount borrowed under the Facility shall equal or exceed $1,000,000,000".
9. Payments. The Parties hereby amend and modify the "Payments" section of the
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Credit Agreement by deleting the last sentence thereof in its entirety, and
replacing it with the following: "If any payment on any borrowing under the
Facility is paid for whatever reason on a date other than the last day of
the
interest period applicable thereto (a "Prepayment"), Borrower shall, upon
demand by Lender, pay to Lender any amounts that would have been required
to compensate Lender for any additional losses, costs or expenses that
Lender would have incurred as a result of the Prepayment as if Lender had
actually borrowed funds to lend to Borrower under the Facility in an amount
equal to the amount of the Prepayment at a LIBO rate on the first day of
the most recently-commenced interest period applicable to the Prepayment."
10. Representations and Warranties. The Parties hereby amend and modify the
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"Representations and Warranties" section of the Credit Agreement by
deleting clause (e) thereof in its entirety, and replacing it with the
following: "The consolidated balance sheet of Borrower and its subsidiaries
at December 31, 2000, and the related consolidated statements of income and
cash flows of Borrower and its subsidiaries for the fiscal year then ended,
accompanied by an opinion of Xxxxxx Xxxxxxxx LLP, independent public
accountants, and the consolidated balance sheet of Borrower and its
subsidiaries at June 30, 2001, and the related consolidated statements of
income and cash flows of Borrower and its subsidiaries for the six months
then ended, fairly present, subject, in the case of said balance sheets at
June 30, 2001, and said statements of income and cash flows for the six
months then ended, to year-end audit adjustments, the consolidated
financial condition of Borrower and its subsidiaries at such dates and the
consolidated results of the operations of Borrower and its subsidiaries for
the periods ended on such dates, all in accordance with generally accepted
accounting principles consistently applied."
11. Additional Covenants.
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(c) The Parties hereby amend and modify the "Additional Covenants" section
of the Credit Agreement by deleting clause (a) thereof in its
entirety, and replacing it with the following: "Borrower agrees to
repay immediately or at such other time as shall be agreeable to
Lender, all borrowings hereunder, and shall agree not to make
additional borrowings hereunder, if Borrower shall receive written
notification from Verizon stating that Verizon reasonably believes
that continuing to act (through Lender) as Lender hereunder in
accordance with the terms hereof would be contrary to any rule,
regulation, order or requirement applicable to Verizon of or by a
court or regulatory agency of competent jurisdiction and Lender
provides Borrower with an opinion of outside legal counsel that
regularly practices before such court or regulatory agency stating
that, in the opinion of such legal counsel, Verizon's belief in such
regard is reasonable under the circumstances; until such time as
either (I) Lender shall notify Borrower that Verizon no longer
maintains such belief or (II) the Facility shall have been amended by
mutual consent of Lender and Borrower and following such amendment,
Lender shall notify Borrower that Verizon no longer maintains such
belief."
(d) The Parties hereby amend and modify the "Additional Covenants" section
of the Credit Agreement by inserting the following sentence at the end
of clause (b) thereof: "Notwithstanding the foregoing, this additional
covenant shall not be deemed to apply to any capital markets
transaction which is supported, directly or indirectly, by a letter of
credit issued pursuant to the terms of the Five-Year Agreement."
10. Effectiveness. This Third Amendment shall become effective immediately upon
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execution and delivery by Lender and the receipt by Lender of (a) a copy of
this Third Amendment duly executed and delivered by Borrower, (b) a duly
executed Master Promissory Note evidencing the amendments to the Credit
Agreement referenced herein, and (c) copies of the documentation described
under the "Documentation" section of the Credit Agreement as modified to
reflect the amendments to the Credit Agreement referenced herein.
11. Miscellaneous. This Third Amendment shall inure to the benefit of and be
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binding upon the Parties, their successors and assigns. This Third
Amendment may be executed in one or more counterparts, all of which shall
be one and the same agreement. Irrespective of the place of performance,
this Third
Amendment shall be construed, interpreted and enforced in accordance with
the laws of the State of New York, without reference to its conflicts of
law principles. This Third Amendment constitutes the entire agreement
between the parties with respect to the subject matter hereof and merges
and supersedes all prior and contemporaneous oral and written
communications with respect hereto; provided, however, that it is the
intent of the parties that this Third Amendment shall amend only the
sections of the Credit Agreement specifically referred to herein. Except as
otherwise specifically provided herein, all other sections of and Schedules
and Exhibits to the Credit Agreement shall be unaffected hereby and shall
remain in full force and effect according to their terms. The Credit
Agreement and this Third Amendment shall be read and construed as one
document.
In witness whereof, the Parties hereto have caused this Third Amendment to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
GENUITY INC.
By: /s/ Xxxxxx X. X'Xxxxx
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Name: Xxxxxx X. X'Xxxxx
Title: Executive Vice President and
Chief Financial Officer
VERIZON INVESTMENTS INC.
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: President and Treasurer
