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EXHIBIT 10.1
AMENDMENT NO. 1 TO THE
CREDIT AGREEMENT
Dated as of February 8, 2002
AMENDMENT NO. 1 TO THE CREDIT AGREEMENT among Avaya Inc., a Delaware
corporation (the "BORROWER"), the banks, financial institutions and other
institutional lenders parties to the Credit Agreement referred to below
(collectively, the "LENDERS") and Citibank, N.A., as agent (the "AGENT") for the
Lenders.
PRELIMINARY STATEMENTS:
(1) The Borrower, the Lenders and the Agent have entered into a 364-Day
Competitive Advance and Revolving Credit Facility Agreement dated as of August
28, 2001 (the "CREDIT AGREEMENT"). Capitalized terms not otherwise defined in
this Amendment have the same meanings as specified in the Credit Agreement.
(2) The Borrower and the Required Lenders have agreed to amend the Credit
Agreement as hereinafter set forth.
SECTION 1. AMENDMENTS TO CREDIT AGREEMENT. The Credit Agreement is,
effective as of the date hereof and subject to the satisfaction of the
conditions precedent set forth in Section 2, hereby amended as follows:
(a) Section 1.01 is amended by adding the following definitions in the
correct alphabetical order:
"AMENDMENT NO. 1" means Amendment No. 1 to this Agreement, dated
as of February 4, 2002.
"AMENDMENT NO. 1 EFFECTIVE DATE" means the date on which the
conditions precedent to the effectiveness of Amendment No. 1 have been
satisfied or waived by the Required Lenders.
"COLLATERAL" means all "Collateral" referred to in the Collateral
Documents and all other property that is or is intended to be subject to
any Lien in favor of the Collateral Agent for the benefit of the Secured
Parties.
"COLLATERAL ACCOUNT" has the meaning specified in the Security
Agreement.
"COLLATERAL DOCUMENTS" means the Security Agreement, the
Collateral Trust Agreement, and any other agreement that creates or
purports to create a Lien in favor of the Agent for the benefit of the
Secured Parties.
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"COLLATERAL TRIGGER" means the date on which (a) the
Borrower's corporate credit rating shall be lower than BBB- by S&P or
(b) the Borrower's Public Debt Rating shall be lower than Baa3 by
Moody's.
"COLLATERAL TRUST AGREEMENT" has the meaning specified in Section
5.21(e).
"COLLATERAL TRUSTEES" has the meaning specified in the Collateral
Trust Agreement.
"CONSOLIDATED EBITDA" shall mean, for any period, net income (or
net loss) PLUS the sum of (a) consolidated interest expense, (b)
consolidated income tax expense, (c) consolidated depreciation expense
and (d) consolidated amortization expense (including the write down of
intangibles associated with the adoption of FAS 142), in each case,
determined in accordance with GAAP for such period, EXCLUDING, (i) up to
$950,000,000 of charges in connection with the business restructuring
plan during such period to be taken no later than the fourth quarter of
fiscal year 2001 of the Borrower, (ii) up to $300,000,000 of start-up
costs associated with the establishment of the Borrower as a separate
business entity incurred during the period to be taken through the fourth
quarter of fiscal year 2001 of the Borrower, (iii) up to $450,000,000 of
non-cash business restructuring charges during such period to be taken no
later than the fourth quarter of fiscal year 2001 of the Borrower, (iv)
up to $163,000,000 of restructuring charges, including asset impairment
and other one time charges during such period to be taken no later than
the fourth quarter of fiscal year 2002 of the Borrower and (v) non-cash
in process research and development charges associated with Investments
made in accordance with Section 5.19(x)(A).
"EXCLUDED SUBSIDIARY" means Avaya Receivables LLC, Mercury
Insurance Inc., Avaya International LLC and any special purpose entity
established in connection with an offering of Indebtedness secured by
real property the proceeds of which are used to reduce the Total
Commitment in accordance with Section 2.11(f).
"FIVE YEAR CREDIT AGREEMENT" means the Five Year Competitive
Advance and Revolving Credit Facility Agreement dated as of September 25,
2000 among the Borrower, Lucent Technologies Inc., the lenders parties
thereto and Citibank, N.A., as agent for said lenders, as such agreement
is amended, supplemented or otherwise modified form time to time.
"INVESTMENT" in any Person means any loan or advance to such
Person, any purchase or other acquisition of any equity interests or Debt
or the assets comprising a division or business unit or a substantial
part or all of the business of such Person, any capital contribution to
such Person or any other direct or indirect investment in such Person,
including, without limitation, any acquisition by way of a merger or
consolidation and any arrangement pursuant to which the investor incurs
Debt of the types referred to in clause (g) or (h) of the definition of
"Debt" in respect of such Person. The amount of any Investment shall be
the original cash cost of such Investment plus the cost of all additions
thereto, without any adjustment for increases or decreases in value, but
shall be reduced by the amount of such Investment returned in cash.
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"LOAN DOCUMENTS" means this Agreement, any notes evidencing the
Loans, the Subsidiary Guaranty and, during the continuance of the
Security Period, the Collateral Documents.
"LOAN PARTIES" means the Borrower and the Subsidiary Guarantors.
"MARKETABLE SECURITIES" means any of the following, to the extent
owned by the Borrower free and clear of all Liens other than Liens
created under the Collateral Documents and having a maturity of not
greater than 180 days from the date of acquisition thereof: (a) readily
marketable direct obligations of the Government of the United States or
any agency or instrumentality thereof or obligations unconditionally
guaranteed by the full faith and credit of the Government of the United
States, (b) insured certificates of deposit of or time deposits with any
commercial bank that is a Lender or a member of the Federal Reserve
System, issues (or the parent of which issues) commercial paper rated as
described in clause (c) below, is organized under the laws of the United
States or any State thereof and has combined capital and surplus of at
least $500 million, (c) commercial paper in an aggregate amount of no
more than $25,000,000 per issuer outstanding at any time, issued by any
corporation organized under the laws of any State of the United States
and rated at least "Prime-1" (or the then equivalent grade) by Moody's or
"A-1" (or the then equivalent grade) by S&P, (d) fully collateralized
repurchase agreements with a term of not more than 30 days for securities
described in clause (a) and entered into with a financial institution
satisfying the criteria in clause (b) or (e) other instruments as set
forth on the Borrower's policy as in effect on the date hereof, a copy of
which has been made available to each Lender.
"NET CASH PROCEEDS" means, with respect to any sale, transfer or
other disposition of any asset of Borrower or its Subsidiaries (excluding
receivables) and/or the sale, incurrence or issuance of any Debt in the
capital markets or equity interests by any Person, the aggregate amount
of cash received from time to time (whether as initial consideration or
through payment or disposition of deferred consideration) by or on behalf
of such Person in connection with such transaction after deducting
therefrom only (without duplication) (a) reasonable and customary
brokerage commissions, underwriting fees and discounts, legal fees,
finder's fees and other similar fees and commissions, (b) the amount of
taxes payable in connection with or as a result of such transaction and
(c) the amount of any Debt secured by a Lien on such asset that, by the
terms of the agreement or instrument governing such Debt, is required to
be repaid upon such disposition, in the case of (a) and (c) to the
extent, but only to the extent, that the amounts so deducted are, at the
time of receipt of such cash, actually paid to a Person that is not an
Affiliate of such Person and in each case are properly attributable to
such transaction or to the asset that is the subject thereof.
"RECEIVABLES INTERCREDITOR AGREEMENT" has the meaning specified in
Section 5.21(f).
"SECURED PARTIES" has the meaning specified in the Collateral
Trust Agreement.
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"SECURITY AGREEMENT" has the meaning specified in Section 5.21(c).
"SECURITY PERIOD" means the period, if any, beginning with the
occurrence of the Collateral Trigger until the earlier of (a) the date
thereafter, if any, that (i) the Borrower's corporate credit rating shall
be at least BBB by S&P and the Borrower's Public Debt Rating shall be at
least Baa2 by Moody's, (ii) to the extent such corporate credit rating
shall be BBB by S&P or such Public Debt Rating shall be Baa2 by Moody's,
such rating shall not be accompanied by either (x) in the case of S&P, a
negative outlook, creditwatch negative or the equivalent thereof or (y)
in the case of Moody's, a negative outlook, a review for possible
downgrade or the equivalent thereof and (iii) the Debt issued pursuant to
Section 5.17(ii)(E) shall by its terms become unsecured, and (b) the
later of the repayment in full of all Advances and the Maturity Date.
"SUBSIDIARY GUARANTORS" means the Material Subsidiaries of the
Borrower listed on Schedule I to Amendment No. 1 and each other Material
Subsidiary that shall be required to execute and deliver a guaranty
pursuant to Section 5.15, but shall not include any Excluded Subsidiary.
"SUBSIDIARY GUARANTY" has the meaning specified in Section
5.21(d).
"WARBURG TRANSACTIONS" means the transactions contemplated by (i)
the Preferred Stock and Warrant Purchase Agreement dated as of August 8,
2000, by and among the Borrower, Warburg, Pincus Equity Partners, L.P.
and the other Purchasers party thereto, including the terms of the Series
B convertible participating preferred stock and warrants issued pursuant
thereto and (ii) any amendment of the terms of the Series B convertible
participating preferred stock or exchange or equity interests for shares
of Series B convertible participating preferred stock, in each case, to
the extent permitted under Section 5.18(iv).
(b) The definition of "APPLICABLE MARGIN" in Section 1.01 is hereby
amended in full to read as follows:
"APPLICABLE MARGIN" shall mean (a) for ABR Loans, 0% per annum and
(b) for Eurodollar Committed Loans, a percentage per annum determined by
reference to the Public Debt Rating in effect on such date as set forth
below:
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APPLICABLE MARGIN FOR
PUBLIC DEBT RATING EURODOLLAR
S&P/MOODY'S COMMITTED LOANS
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I: At least A or A2 0.305%
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II: Below I, but at least
A- or A3 0.410%
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III: Below II, but at least
BBB+ or Baa1 0.625%
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IV: Below III, but at least
BBB or Baa2 0.850%
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V: Below IV, but at least
BBB- or Baa3 1.075%
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VI: Below V 1.525%
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(c) The definition of "DEBT" in Section 1.01 is hereby amended by
restating clause (d) thereof in full to read as follows:
(d) all obligations of such Person as lessee under Capitalized
Leases and under synthetic, off-balance sheet or tax retention leases
(d) Section 2.11 is amended by adding to the end thereof the following
new subsections:
(d) The Total Commitment shall be automatically reduced one
Business Day after the date that the Borrower or any of its Subsidiaries
receives Net Cash Proceeds from the issuance of Debt in the capital
markets having a maturity in excess of one year by an amount equal to (x)
the amount of such Net Cash Proceeds (but not more than $500,000,000)
multiplied by a fraction the numerator of which is the Total Commitment
before giving effect to such reduction and the denominator of which is
the sum of the Total Commitment before giving effect to such reduction
plus the "Total Commitment" (as defined in the Five Year Credit
Agreement) before giving effect to any reduction thereof on such date,
PROVIDED that the sum of the Total Commitment and the "Total Commitment"
(as defined in the Five Year Credit Agreement) shall not be reduced
pursuant to this clause (d) below $700,000,000.
(e) To the extent that the sum of the Total Commitment plus the
"Total Commitment" (as defined in the Five Year Credit Agreement) exceeds
$850,000,000 (without giving effect to any reduction of the Total
Commitment or the "Total Commitment" (as defined in the Five Year Credit
Agreement) as a result of a financing permitted by Section 5.17(ii)(D)),
the Total Commitment shall be automatically reduced one Business Day
after the date that the Borrower or any of its Subsidiaries receives Net
Cash Proceeds from the sale or other disposition of assets (other than
sales or dispositions of inventory in the ordinary course of business,
dispositions of accounts receivable in accordance with Section 5.07(viii)
or sales of assets for cash and having a fair market value in an
aggregate amount not to exceed $25,000,000 in any fiscal year of the
Borrower) by an amount equal to the product of (x) the lesser of (i) such
Net Cash Proceeds and (ii) the amount of such Net Proceeds required to
reduce the Total Commitment plus the "Total Commitment" (as defined in
the Five Year Credit Agreement) to $850,000,000 (without giving effect to
any reduction of the Total Commitment or the "Total Commitment" (as
defined in the Five Year Credit Agreement) as a result of a financing
permitted by Section 5.17(ii)(D)), multiplied by (y) a fraction the
numerator of which is the Total Commitment before giving effect to such
reduction and the denominator of which is the sum of the Total Commitment
before giving effect to such reduction plus the "Total Commitment" (as
defined in the Five Year Credit Agreement) before giving effect to any
reduction thereof on such date.
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(f) The Total Commitment shall be automatically reduced one
Business Day after the date that the Borrower or any of its Subsidiaries
receives Net Cash Proceeds from a financing permitted by Section
5.17(ii)(D) by an amount equal to the product of (x) such Net Cash
Proceeds multiplied by (y) a fraction the numerator of which is the Total
Commitment before giving effect to such reduction and the denominator of
which is the sum of the Total Commitment before giving effect to such
reduction plus the "Total Commitment" (as defined in the Five Year Credit
Agreement) before giving effect to any reduction thereof on such date.
(e) Section 3.05(a) is amended in full to read as follows:
(a) The Borrower has heretofore furnished to the Agent and the
Lenders copies of its consolidated financial statements as of and for the
fiscal year ended September 30, 2001 as included in the Borrower's Annual
Report on Form 10-K filed with the Securities and Exchange Commission on
December 26, 2001 (the "2001 Form 10-K"). Such financial statements
present fairly, in all material respects, the consolidated financial
condition of the Borrower as of such date and for such periods in
accordance with GAAP;
(f) Section 3.05(b) is amended in full to read as follows:
(b) As of the date hereof, except as disclosed in the Borrower's
2001 From 10-K or in the press release dated January 17, 2002 reporting
the Borrower's financial results for the fiscal quarter ended December
31, 2001, there has been no material adverse change in the consolidated
business, assets, operations or condition, financial or otherwise, of the
Borrower and its Subsidiaries taken as a whole since September 30, 2001.
For purposes of this representation a change in the Public Debt Rating of
the Borrower shall not constitute a material adverse change.
(g) Section 3.06(3)(ii) is amended by deleting the words "Third Quarter
Form 10-K" and substituting therefore the words "2001 Form 10-K".
(h) Section 3.06(b) is amended by deleting the words "Third Quarter Form
10-K" and substituting therefore the words "2001 Form 10-K".
(i) Section 4.01(b) is amended in full to read as follows:
(b) The representations and warranties set forth in the Loan
Documents shall be true and correct in all material respects on and as of
the date of such Borrowing with the same effect as though made on and as
of such date, except to the extent such representations and warranties
expressly relate to an earlier date; PROVIDED that the representations
and warranties in Section 3.05(b) and Section 3.06(a)(ii) shall only be
made upon the Closing Date, at the time of each extension of the Maturity
Date in accordance with Section 2.22 and on the occasion of any Borrowing
the proceeds of which are not used to refund commercial paper.
(j) Section 5.07(ix) is amended in full to read as follows:
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(ix) synthetic leases in effect as of the Amendment No. 1
Effective Date and synthetic lease transactions on properties owned as of
the date hereof in an aggregate principal amount not to exceed
$50,000,000;
(k) Section 5.07(x) is amended by deleting the figure "$500,000,000" and
substituting therefor the figure "$75,000,000".
(l) Section 5.07 is further amended by adding to the end thereof a new
clause (xii) to read as follows:
(xii) Liens created under the Collateral Documents.
(m) Section 5.08 is amended in full to read as follows:
SECTION 5.08. INTEREST COVERAGE RATIO. It will maintain a ratio of
Consolidated EBITDA of the Borrower and its Subsidiaries to interest
expense for the period consisting of the previous four consecutive fiscal
quarters by the Borrower and its Subsidiaries of not less than 3.00:1.00
at all times until September 30, 2002 and of not less than 4.00:1.00 at
all times thereafter.
(n) Article V is further amended by adding at the end thereof the
following new sections:
SECTION 5.09. Minimum EBITDA. It will maintain, as of the end of
each period set forth below, Consolidated EBITDA of the Borrower and its
Subsidiaries of not less than the amount set forth below for such period:
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PERIOD MINIMUM EBITDA
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January 1, 2002 through March 31, 2002 $20,000,000
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January 1, 2002 through June 30, 2002 $80,000,000
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January 1, 2002 through September 30, 2002 $180,000,000
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January 1, 2002 through December 31, 2002 $300,000,000
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Rolling four quarters thereafter $400,000,000
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SECTION 5.10. VISITATION RIGHTS. At any reasonable time and from
time to time, upon reasonable prior notice, it will permit the Agent or
any of the Lenders or any agents or representatives thereof, to examine
and make copies of and abstracts from the records and books of account
of, and visit the properties of, the Borrower and any of its
Subsidiaries, and to discuss the affairs, finances and accounts of the
Borrower and any of its Subsidiaries with any financial officers and,
upon reasonable prior to notice to the Borrower and subject to the right
of a financial officer to be present during such discussions, with their
independent certified public accountants; PROVIDED, that unless an Event
of Default shall have occurred and is continuing, each of the Agent and
the Lenders may take such actions only once during any fiscal quarter of
the Borrower.
SECTION 5.11. MAINTENANCE OF PROPERTIES, ETC. It will maintain and
preserve, and cause each of its Subsidiaries to maintain and preserve,
all of its material properties
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that are material to the conduct of its business taken as a whole in good
working order and condition, ordinary wear and tear excepted; PROVIDED,
HOWEVER, that nothing in this Section 5.11 shall prevent the Borrower or
any such Subsidiary from discontinuing the operation or maintenance of
any property if such discontinuance is in the judgment of the Borrower
desirable in the conduct of its business or the business of such
Subsidiary.
SECTION 5.12. MAINTENANCE OF INSURANCE. It will maintain, and
cause each of its Subsidiaries to maintain, insurance with responsible
and reputable insurance companies or associations in such amounts and
covering such risks as is usually carried by companies engaged in similar
businesses and owning similar properties in the same general areas in
which the Borrower or such Subsidiary operates; PROVIDED, HOWEVER, that
(i) the Borrower and its Subsidiaries may self-insure to the same extent
as other companies engaged in similar businesses and owning similar
properties in the same general areas in which the Borrower or such
Subsidiary operates and to the extent consistent with prudent business
practice and (ii) insurance coverage against terrorist acts shall be
required only so long as such coverage is available on commercially
reasonable terms.
SECTION 5.13. PAYMENT OF TAXES, ETC. It will pay and discharge,
and cause each of its Subsidiaries to pay and discharge, before the same
shall become delinquent, (i) all taxes, assessments and governmental
charges or levies imposed upon it or upon its property and (ii) all
lawful claims, in each case, that, if unpaid, could reasonably be
expected to result in a Material Adverse Effect; PROVIDED, HOWEVER, that
neither the Borrower nor any of its Subsidiaries shall be required to pay
or discharge any such tax, assessment, charge or claim that is being
contested in good faith and by proper proceedings and as to which
appropriate reserves are being maintained so long as the failure to so
pay or discharge could not reasonably be expected to result in a Material
Adverse Effect.
SECTION 5.14. TRANSACTIONS WITH AFFILIATES. It will conduct, and
cause each of its Subsidiaries to conduct, all transactions otherwise
permitted under this Agreement with any of their Affiliates on terms that
are fair and reasonable and no less favorable to the Borrower or such
Subsidiary than it would obtain in a comparable arm's-length transaction
with a Person not an Affiliate; PROVIDED, that the foregoing shall not
apply to transactions between the Borrower and its Subsidiaries or the
Warburg Transactions.
SECTION 5.15. COVENANT TO GUARANTEE OBLIGATIONS AND GIVE SECURITY.
At any time during the Security Period, it will upon (x) the request of
the Agent following the occurrence and during the continuance of a
Default, (y) the formation or acquisition of any new direct or indirect
domestic Material Subsidiaries by any Loan Party or (z) the acquisition
of any material property by any Loan Party, and such property, in the
judgment of the Agent, shall not already be subject to a perfected first
priority security interest in favor of the Collateral Trustees for the
benefit of the Secured Parties, then the Borrower shall, in each case at
the Borrower's expense:
(i) in connection with the formation or acquisition of a
domestic Material Subsidiary, within 10 days after such formation
or acquisition, cause
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each such Subsidiary, and cause each direct and indirect domestic
parent of such Subsidiary (if it has not already done so), to duly
execute and deliver to the Agent a guaranty or guaranty
supplement, in form and substance reasonably satisfactory to the
Agent, guaranteeing the other Loan Parties' obligations under the
Loan Documents,
(ii) within 15 days after such request, formation or
acquisition, duly execute and deliver, and cause each such
Subsidiary and each direct and indirect domestic parent of such
Subsidiary (if it has not already done so) to duly execute and
deliver, to the Collateral Trustees, pledges, assignments,
security agreement supplements, intellectual property security
agreement supplements and other security agreements, as specified
by and in form and substance reasonably satisfactory to the Agent,
securing payment of all the obligations of the applicable Loan
Party, such Subsidiary or such parent, as the case may be, under
the Loan Documents and constituting Liens on all such properties,
PROVIDED that no real property shall be subjected to a security
interest in favor of the Collateral Trustees for the benefit of
the Secured Parties,
(iii) within 30 days after such request, formation or
acquisition, take, and cause such Subsidiary or such parent to
take, whatever action (including, without limitation, the filing
of Uniform Commercial Code financing statements, the giving of
notices and the endorsement of notices on title documents) may be
reasonably necessary or advisable in the opinion of the Agent to
vest in the Collateral Trustees (or in any representative of the
Collateral Trustees designated by them) valid and subsisting Liens
on the properties purported to be subject to the pledges,
assignments, security agreement supplements, intellectual property
security agreement supplements and security agreements delivered
pursuant to this Section 5.15, enforceable against all third
parties in accordance with their terms,
(iv) within 60 days after such request, formation or
acquisition, deliver to the Agent, upon the request of the Agent
in its sole discretion, a signed copy of a favorable opinion,
addressed to the Agent and the other Secured Parties, of counsel
for the Loan Parties reasonably acceptable to the Agent as to the
matters contained in clauses (i), (ii) and (iii) above, as to such
guaranties, guaranty supplements, pledges, assignments, security
agreement supplements, intellectual property security agreement
supplements and security agreements being legal, valid and binding
obligations of each Loan Party party thereto enforceable in
accordance with their terms, as to the matters contained in clause
(iii) above, as to such recordings, filings, notices, endorsements
and other actions being sufficient to create valid perfected Liens
on such properties to the extent a Lien can be created by filing
under the Uniform Commercial Code, and as to such other matters as
the Agent may reasonably request,
(v) at any time and from time to time, promptly execute and
deliver any and all further instruments and documents and take all
such other action as the Agent may deem necessary or desirable in
obtaining the full benefits of, or in
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perfecting and preserving the Liens of, such guaranties, pledges,
assignments, security agreement supplements, intellectual property
security agreement supplements and security agreements.
SECTION 5.16. FURTHER ASSURANCES. (i) It will promptly upon
request by the Agent, or any Lender through the Agent, correct, and cause
each of its Subsidiaries promptly to correct, any material defect or
error that may be discovered in any Loan Document or in the execution,
acknowledgment, filing or recordation thereof, and
(ii) It will promptly upon request by the Agent, do,
execute, acknowledge, deliver, record, re-record, file, re-file,
register and re-register any and all such further acts, pledge
agreements, assignments, financing statements and continuations
thereof, termination statements, notices of assignment, transfers,
certificates, assurances and other instruments as the Agent may
reasonably require from time to time in order to (A) carry out
more effectively the purposes of the Loan Documents, (B) to the
fullest extent permitted by applicable law and during the Security
Period, subject any Loan Party's or any of its domestic
Subsidiaries' properties, assets, rights or interests to the Liens
now or hereafter intended to be covered by any of the Collateral
Documents, (C) during the Security Period, to perfect and maintain
the validity, effectiveness and priority of any of the Collateral
Documents and any of the Liens intended to be created thereunder
and (D) to assure, convey, grant, assign, transfer, preserve,
protect and confirm more effectively unto the Secured Parties the
rights granted or now or hereafter intended to be granted to the
Secured Parties under any Loan Document or under any other
instrument executed in connection with any Loan Document to which
any Loan Party or any of its Subsidiaries is or is to be a party,
and cause each of its Subsidiaries to do so; PROVIDED, that
nothing contained herein shall require the Borrower or any
Subsidiary to grant a security interest in the assets or property
of any Excluded Subsidiary.
SECTION 5.17. DEBT. It will not create, incur, assume or suffer to
exist, or permit any of its Subsidiaries to create, incur, assume or
suffer to exist, any Debt, except:
(i) in the case of the Borrower, unsecured Debt incurred in the
ordinary course of business for borrowed money, maturing within one year
from the date incurred, evidenced by commercial paper and aggregating at
any time not more than the then outstanding sum of (1) the unused
Commitments and (2) the unused portion of lines of credit from commercial
banks advised in writing and available to the Borrower, and
(ii) in the case of the Borrower and its Subsidiaries,
(A) Debt under the Loan Documents,
(B) Debt under the "Loan Documents" (as defined in the Five
Year Credit Agreement),
(C) Debt outstanding on the Amendment No. 1 Effective Date
and any Debt extending the maturity of, or refunding or
refinancing, in whole or in part,
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any such Debt, PROVIDED that the terms of any such extending,
refunding or refinancing Debt, and of any agreement entered into
and of any instrument issued in connection therewith, are
otherwise permitted by the Loan Documents, PROVIDED FURTHER that
the principal amount of such Debt shall not be increased above the
sum of (i) principal amount thereof outstanding immediately prior
to such extension, refunding or refinancing, and (ii) any fees and
expenses in connection therewith, and the direct and contingent
obligors therefor shall not be changed, as a result of or in
connection with such extension, refunding or refinancing,
(D) Debt in an aggregate principal amount not to exceed
$200,000,000 at any time outstanding secured by real property,
(E) Debt issued in the capital markets, having a maturity
in excess of one year from the date incurred and in an aggregate
principal amount no to exceed the sum of $500,000,000 and any over
allotment thereof at any time outstanding;
(F) Debt of the Borrower to any Subsidiary of the Borrower
or of any Subsidiary to the Borrower or any other Subsidiary of
the Borrower,
(G) without duplication of clause (C) above, Debt, not to
exceed $300,000,000 at any time outstanding, incurred in
connection with the limited recourse sale of accounts receivable
in connection with the securitization thereof, which sale is
non-recourse to the extent customary in securitizations and
consistent with past practice,
(H) Debt permitted to be secured by Liens in accordance
with Section 5.07(v), (vi) or (vii);
(I) Debt in respect of Hedge Agreements designed to hedge
against fluctuations in interest rates or foreign exchange rates
incurred in the ordinary course of business and in accordance with
prudent business practices,
(J) Debt in respect of trade letters of credit in an
aggregate amount not to exceed $25,000,000 at any time
outstanding,
(K) Debt arising under the Electronic Wire and Cable
Product Purchase Agreement, as amended, and related agreements,
between the Borrower and the Belden Communication Division, a
division of Belden line,
(L) other Debt not to exceed in the aggregate $75,000,000
at any time outstanding, and
(M) other Debt not to exceed in the aggregate $50,000,000
consisting synthetic, off-balance sheet or tax retention leases.
SECTION 5.18. RESTRICTED PAYMENTS. It will not declare or make any
dividend payment or other distribution of assets, properties, cash,
rights, obligations or securities
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on account of any shares of any class of capital stock of the Borrower,
or purchase, redeem or otherwise acquire for value (or permit any of its
Subsidiaries to do so) any shares of any class of capital stock of the
Borrower or any warrants, rights or options to acquire any such shares,
now or hereafter outstanding, except that, so long as no Default shall
have occurred and be continuing at the time of any action described below
or would result therefrom, the Borrower may (i) declare and make any
dividend payment or other distribution payable in common stock of the
Borrower, (ii) purchase, redeem or otherwise acquire shares of its common
stock or warrants, rights or options to acquire any such shares with the
proceeds received from the substantially concurrent issue of new shares
of its common stock or options or warrants convertible into common stock;
(iii) declare or pay cash dividends to the holders to its Series B
convertible participating preferred stock and warrants and purchase,
redeem or otherwise acquire shares of its Series B convertible
participating preferred stock or warrants, rights or options to acquire
any such shares to the extent permitted by the terms of such Series B
convertible participating preferred stock or pay cash dividends in
respect of equity interests received in exchange for shares of Series B
convertible participating preferred stock, as described in clause (iv);
and (iv) amend the terms of the Series B convertible participating
preferred stock or issue equity interests of the Borrower, provided,
however, that such amended terms or the terms of such equity interests
shall not provide for (i) mandatory redemption prior to the Maturity Date
or (ii) the payment of cash dividends in an amount in excess of the
amount of cash dividends that may be paid in respect of the Series B
convertible participating preferred stock based on the terms of the
Series B convertible participating preferred stock as in effect on the
date hereof.
SECTION 5.19. INVESTMENTS IN OTHER PERSONS. It will not make or
hold, or permit any of its Subsidiaries to make or hold, any Investment
in any Person other than:
(i) Investments (other than Investment permitted by clause
(iv) below) by the Borrower and its Subsidiaries in their
Subsidiaries outstanding on the Amendment No. 1 Effective Date and
(x) additional Investments in an aggregate amount not to exceed
$50,000,000 at any time outstanding in Subsidiaries that are not
Subsidiary Guarantors and (y) additional Investments in the
Subsidiary Guarantors;
(ii) loans and advances to employees in the ordinary course
of the business of the Borrower and its Subsidiaries as presently
conducted in an aggregate principal amount not to exceed
$10,000,000 at any time outstanding;
(iii) Investments in Marketable Securities;
(iv) Investments consisting of intercompany Debt permitted
under Section 5.17;
(v) Investments received in connection with the bankruptcy
or reorganization of, or settlement of delinquent accounts and
disputes with customers and suppliers, in each case, in the
ordinary course of business;
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(vi) Investments in joint ventures and other minority
interests in an amount not to exceed $75,000,000 at any time
outstanding;
(vii) warrants received from and minority equity interests
in, customers of and vendors to the Borrower and its Subsidiaries
so long as no cash is expended by the Borrower or any of its
Subsidiaries to purchase any of the foregoing;
(viii) minority interests received in connection with the
sale or disposition of any assets of the Borrower;
(ix) Investments existing on the Amendment No. 1 Effective
Date; and
(x) (A) other Investments in an aggregate amount invested
not to exceed $150,000,000 and (B) so long as the sum of the Total
Commitments plus the "Total Commitments" (as defined in the Five
Year Credit Agreement) does not exceed $850,000,000, additional
Investments, PROVIDED that any Investments made in accordance with
this clause (B) are funded from sources other than this Agreement
or the Five Year Credit Agreement and PROVIDED, FURTHER, that with
respect to all Investments made under this clause (x): (1)
immediately before and after giving effect thereto, no Default
shall have occurred and be continuing or would result therefrom;
(2) any company or business acquired or invested in pursuant to
this clause (x) shall be in the same line of business of the
Borrower or any of its Subsidiaries or reasonably related thereto;
and (3) immediately after giving effect to the acquisition of a
company or business pursuant to this clause (x), the Borrower
shall be in pro forma compliance with Section 5.08, calculated
based on the financial statements most recently delivered to the
Lenders pursuant to Section 5.02 and as though such acquisition
had occurred at the beginning of the four-quarter period covered
thereby, as evidenced by a certificate of the Chief Financial
Officer of the Borrower delivered to the Lenders demonstrating
such compliance.
SECTION 5.20. CHANGE IN NATURE OF BUSINESS. It will not make, or
permit any of its Subsidiaries to make, any material change in the nature
of its business taken as a whole as carried on at the date hereof (other
than changes that are reasonably related to such business).
SECTION 5.21. CONDITION SUBSEQUENT TO AMENDMENT NO. 1 EFFECTIVE
DATE. Within 45 days after the Amendment No. 1 Effective Date, it will
deliver to the Agent in sufficient copies for each Lender:
(a) Certified copies of the resolutions of the Board of
Directors of each Subsidiary Guarantor approving each of the Loan
Documents to which it is a party, and of all documents evidencing
other necessary corporate action and governmental approvals, if
any, with respect to such Loan Document.
(b) A certificate of the Secretary or an Assistant
Secretary of each Subsidiary Guarantor certifying the names and
true signatures of the officers of
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such Subsidiary Guarantor authorized to sign each of the Loan
Documents to which it is a party and the other documents to be
delivered by it hereunder.
(c) A security agreement in form and substance reasonably
satisfactory to the Agent and Borrower (the "SECURITY AGREEMENT"),
granting a security interest in the equipment, accounts
receivable, inventory, domestic intellectual property and stock of
domestic Subsidiaries of the Borrower (other than the Excluded
Subsidiaries) and the Subsidiary Guarantors to secure the
obligations of the Loan Parties under the Loan Documents, the
"Loan Documents" (as defined in the Five Year Credit Agreement),
the Debt issued in accordance with Section 5.17(ii)(E) and
obligations owing to Lenders or "Lenders" (as defined in the Five
Year Credit Agreement) in respect of letters of credit, overdraft
facilities, Hedge Agreements or otherwise, in each case to the
extent permitted by the negative lien covenant baskets of the
Borrower's bond indentures and consented to by the creditors of
the Receivables Financing, duly executed by the Borrower and each
Subsidiary Guarantor.
(d) A guaranty in form and substance reasonably
satisfactory to the Agent and each Subsidiary Guarantor (the
"SUBSIDIARY GUARANTY"), duly executed by each Subsidiary
Guarantor.
(e) An agreement in form and substance reasonably
satisfactory to the Agent and the Borrower among the Collateral
Trustees named therein, the Borrower and each Subsidiary Guarantor
(the "COLLATERAL TRUST AGREEMENT").
(f) An agreement in form and substance reasonably
satisfactory to the Agent and the Borrower duly executed and
delivered by the Collateral Agent, the Borrower and each
Subsidiary Guarantor that participates in the Receivables
Financing and duly authorized representatives of the creditors
parties to each receivables securitization program permitted
pursuant to Section 5.07(viii) and existing on the Amendment No. 1
Effective Date (the "RECEIVABLES INTERCREDITOR AGREEMENT").
(g) A favorable opinion of Legal Counsel for the Loan
Parties, in form and substance satisfactory to the Agent and as to
such other matters as the Agent may reasonably request.
SECTION 5.22. COLLATERAL TRIGGER. Within 30 days of the occurrence
of the Collateral Trigger, it will deliver to the Agent with sufficient
copies for each Lender:
(a) acknowledgment copies of proper financing statements,
duly filed on or before such day under the Uniform Commercial Code
of all jurisdictions that the Agent may deem necessary or
desirable in order to perfect and protect the first priority liens
and security interests created under the Security Agreement,
covering the Collateral described in the Security Agreement,
(b) completed requests for information, dated on or before
such day, listing the financing statements referred to in clause
(a) above and all other
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effective financing statements filed in the jurisdictions referred
to in clause (ii) above that name the Borrower or any Subsidiary
Guarantor as debtor, together with copies of such other financing
statements, and
(c) a favorable opinion of local counsel with respect
to the Security Agreement in form and substance reasonably
satisfactory to the Agent.
Upon the termination of the Security Period, the security
interests shall terminate on and subject to the terms of the
Collateral Documents, and the parties shall take such further
action all as provided therein.
(o) Subsection (d) of Article VI is amended in full to read as
follows:
(d) default shall be made in the due observance or performance of
any covenant, condition or agreement contained in Section 5.01, 5.02(e),
5.04, 5.06, 5.07, 5.08, 5.09, 5.10, 5.14, 5.17, 5.18, 5.19 or 5.20;
(p) Subsection (e) of Article VI is amended in full to read as
follows:
(e) default shall be made in the due observance or performance of
any covenant, condition or agreement contained herein (other than those
specified in (b), (c) or (d) above or (f) below) or in any other Loan
Document and such default shall continue for a period of 30 days after
notice thereof from the Agent or any Lender to the Borrower;
(q) Subsection (i) of Article VI is amended in full to read as
follows:
(i) The Borrower or any of its Subsidiaries shall fail to pay any
principal of or premium or interest on any Debt that is outstanding in a
principal amount of at least $100,000,000 in the aggregate (but excluding
Debt outstanding hereunder) of the Borrower or such Subsidiary (as the
case may be), when the same becomes due and payable (whether by scheduled
maturity, required prepayment, acceleration, demand or otherwise), and
such failure shall continue after the applicable grace period, if any,
specified in the agreement or instrument relating to such Debt; or any
other event shall occur or condition shall exist under any agreement or
instrument relating to any such Debt and shall continue after the
applicable grace period, if any, specified in such agreement or
instrument, if the effect of such event or condition is to accelerate, or
to permit the acceleration of, the maturity of such Debt; or any such
Debt shall be declared to be due and payable, or required to be prepaid
or redeemed (other than by a regularly scheduled required prepayment or
redemption), purchased or defeased, or an offer to prepay, redeem,
purchase or defease such Debt shall be required to be made, in each case
prior to the stated maturity thereof;
(r) Article VI is further amended by adding the following subsections
immediately after subsection (k) thereof:
(l) (i) Any Person or group of Persons (within the meaning of
Section 13 or Section 14 of the Securities and Exchange Act of 1934)
shall have acquired beneficial
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ownership (within the meaning of Rule 13d-3 of the Securities and
Exchange Commission under such Act), directly or indirectly, of Voting
Shares of the Borrower (or other securities convertible into such Voting
Shares) representing 30% or more of the combined voting power of all
Voting Shares of the Borrower; or (ii) during any period of up to 24
consecutive months, commencing before or after the date of this
Agreement, individuals who at the beginning of such 24-month period were
directors of the Borrower shall cease for any reason (other than due to
death or disability) to constitute a majority of the board of directors
of the Borrower (except to the extent that individuals who at the
beginning of such 24-month period were replaced by individuals (x)
elected by a majority of the remaining members of the board of directors
of the Borrower or (y) nominated for election by a majority of the
remaining members of the board of directors of the Borrower and
thereafter elected as directors by the shareholders of the Borrower); or
(m) any provision of any guarantee after delivery thereof pursuant
to Section 5.15 or 5.21 shall for any reason cease to be valid and
binding on or enforceable against any Loan Party party to it, or any such
Loan Party shall so state in writing; or
(n) any Collateral Document or financing statement after delivery
thereof pursuant to Section 5.15 or 5.21 shall for any reason (other than
pursuant to the terms thereof) cease to create a valid and perfected
first priority lien on and security interest in the Collateral purported
to be covered thereby; or
(s) Section 8.05(b) is amended by adding to the end thereof the following
sentence:
The Borrower also agrees not to assert any claim for special,
indirect, consequential or punitive damages against the Agent, any
Lender, any of their Affiliates, or any of their respective directors,
officers, employees, attorneys and agents, on any theory of liability,
arising out of or otherwise relating to this Agreement, any other Loan
Document, any of the transactions contemplated herein or the actual or
proposed use of the proceeds of the Loans.
(t) Section 8.08(b) is amended by adding immediately before the proviso a
new clause (iv) to read as follows:
or (iv) release all or substantially all of the Collateral without
the prior written consent of each Lender, PROVIDED that so long as no
Default or Event of Default has occurred and is continuing, (x) no
consent of any Lender or the Agent shall be required for the release of
any Collateral in connection with a sale or other disposition of assets
(including the assets described on Schedule II to Amendment No. 1) if any
of the proceeds thereof are used to reduce the Total Commitment in
accordance with Section 2.11(e) or in connection with a financing to the
extent the proceeds thereof are used to reduce the Total Commitment in
accordance with Section 2.11(f), (y) no consent of any Lender or the
Agent shall be required for the release of any Collateral associated with
the sale or other disposition of the assets described on Schedule II to
Amendment No. 1 if the sum of the Total Commitment plus the "Total
Commitment" (as defined in the Five Year Credit Agreement) has been, or
is contemporaneously with such asset disposition,
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reduced to $700,000,000 and (z) in any fiscal year of the Borrower,
Collateral having a fair market value not in excess of $25,000,000 shall
be released upon sale or other disposition with only the consent of the
Agent
SECTION 2. CONDITIONS OF EFFECTIVENESS. This Amendment shall become
effective as of the date first above written when, and only when (x) the Agent
shall have received counterparts of this Amendment executed by the Borrower and
the Required Lenders or, as to any of the Lenders, advice satisfactory to the
Agent that such Lender has executed this Amendment, (y) the Borrower shall have
paid to the Agent for the account of each of the Lenders that has approved this
Amendment a fee equal to 0.075% of the Commitments of such Lenders and (z) the
Agent shall have additionally received all of the following documents, each such
document (unless otherwise specified) dated the date of receipt thereof by the
Agent (unless otherwise specified) and in sufficient copies for each Lender, in
form and substance satisfactory to the Agent (unless otherwise specified) and in
sufficient copies for each Lender:
(a) Certified copies of (i) the resolutions of the Board of
Directors of the Borrower approving this Amendment and the Collateral
Documents (as hereinafter defined) to which it is or is to be a party,
and the matters contemplated hereby and thereby and (ii) all documents
evidencing other necessary corporate action and governmental approvals,
if any, with respect to this Amendment, the Loan Documents and the
matters contemplated hereby and thereby.
(b) A certificate of the Secretary or an Assistant Secretary of
the Borrower certifying the names and true signatures of the officers of
the Borrower authorized to sign this Amendment and the Loan Documents to
which they are or are to be a party and the other documents to be
delivered hereunder and thereunder.
(c) A favorable opinion of corporate counsel for the Borrower, in
substantially the form of Exhibit A, hereto and as to such other matters
as any Lender through the Agent may reasonably request.
(d) A certificate signed by a duly authorized officer of the
Borrower stating that:
(i) The representations and warranties contained in Section
3 are correct in all material respects on and as of the date of
such certificate as though made on and as of such date; and
(ii) No event has occurred and is continuing that
constitutes a Default.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE BORROWER The Borrower
represents and warrants as follows:
(a) It (i) is a corporation duly organized, validly existing and
in good standing under the laws of the jurisdiction of its organization,
(ii) has all requisite power and authority to own its property and assets
and to carry on its business as now conducted and as proposed to be
conducted, (iii) is qualified to do business in every jurisdiction where
such qualification is required, except where the failure so to qualify
would not
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result in a Material Adverse Effect, and (iv) has the corporate power and
authority to execute, deliver and perform its obligations under this
Amendment.
(b) The execution, delivery and performance by the Borrower of
this Amendment and the Loan Documents, as amended hereby, to which it is
a party, and the consummation of the transactions contemplated hereby (i)
have been duly authorized by all requisite corporate actions and (ii)
will not (A) violate (1) any provision of any law, statute, rule or
regulation (including, without limitation, the Margin Regulations) or of
its certificate of incorporation or other constitutive documents or
by-laws, (2) any order of any Governmental Authority or (3) any provision
of any indenture, agreement or other instrument to which it is a party or
by which it or any of its property is or may be bound, (B) be in conflict
with, result in a breach of or constitute (alone or with notice or lapse
of time or both) a default under any such indenture, agreement or other
instrument or (C) except for the Liens to be created under the Collateral
Documents, result in the creation or imposition of any lien upon any of
the properties of the Borrower or any of its Subsidiaries.
(c) This Amendment has been duly executed and delivered by the
Borrower. This Amendment and the Credit Agreement and the Notes, as
amended hereby, are the legal, valid and binding obligations of the
Borrower, enforceable against the Borrower in accordance with their
respective terms.
(d) No action, consent or approval of, registration or filing with
or any other action by any Governmental Authority is or will be required
in connection with the due execution, delivery, recordation, filing or
performance by the Borrower of this Amendment.
(e) There are no actions or proceedings filed or (to its
knowledge) investigations pending or threatened against it in any court
or before any Governmental Authority or arbitration board or tribunal
which question the validity, enforceability or legality of or seek
damages in connection with this Amendment or the Credit Agreement and the
Notes, as amended hereby, or any action taken or to be taken pursuant to
this Amendment or the Credit Agreement and the Notes, as amended hereby,
and no order or judgment has been issued or entered restraining or
enjoining it from the execution, delivery or performance of this
Amendment or the Credit Agreement and the Notes, as amended hereby, nor
is there any action or proceeding which involves a probable risk of an
adverse determination which would have any such effect; (ii) nor is there
as of the date hereof any other action or proceeding filed or (to its
knowledge) investigation pending or threatened against it in any court or
before any Governmental Authority or arbitration board or tribunal which
involves a probable risk of a material adverse decision which would
result in a Material Adverse Effect , except as provided in the 2001 Form
10-K or materially restrict the ability of it to comply with its
obligations under this Amendment or the Credit Agreement and the Notes,
as amended hereby.
SECTION 4. REFERENCE TO AND EFFECT ON THE CREDIT AGREEMENT AND THE NOTES.
(a) On and after the effectiveness of this Amendment, each reference in the
Credit Agreement to "this Agreement", "hereunder", "hereof" or words of like
import referring to the Credit
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Agreement, and each reference in the Notes to "the Credit Agreement",
"thereunder", "thereof" or words of like import referring to the Credit
Agreement, shall mean and be a reference to the Credit Agreement, as amended by
this Amendment.
(b) The Credit Agreement and the Notes, as specifically amended by this
Amendment, are and shall continue to be in full force and effect and are hereby
in all respects ratified and confirmed.
(c) The execution, delivery and effectiveness of this Amendment shall
not, except as expressly provided herein, operate as a waiver of any right,
power or remedy of any Lender or the Agent under the Credit Agreement, nor
constitute a waiver of any provision of the Credit Agreement.
SECTION 5. COSTS AND EXPENSES. The Borrower agrees to pay on demand all
costs and expenses of the Agent in connection with the preparation, execution,
delivery and administration, modification and amendment of this Amendment and
the other instruments and documents to be delivered hereunder (including,
without limitation, the reasonable fees and expenses of counsel for the Agent)
in accordance with the terms of Section 8.04 of the Credit Agreement.
SECTION 6. EXECUTION IN COUNTERPARTS. This Amendment 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 but one and the same agreement.
Delivery of an executed counterpart of a signature page to this Amendment by
telecopier shall be effective as delivery of a manually executed counterpart of
this Amendment.
SECTION 7. GOVERNING LAW. This Amendment shall be governed by, and
construed in accordance with, the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
AVAYA INC.
By /s/ Rhonda Seegal
------------------------------------------
Title: Vice President and Treasurer
CITIBANK, N.A.,
as Agent and as Lender
By /s/ Carolyn Kee
------------------------------------------
Title: Vice President
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JPMORGAN CHASE BANK
By /s/ William E. Rottino, CFA
------------------------------------------
Name: William E. Rottino, CFA
Title: Vice President
DEUTSCHE BANK AG NEW YORK BRANCH
By /s/ Andreas Neumeier
------------------------------------------
Name: Andreas Neumeier
Title: Director
By /s/ Peter Eschmann
------------------------------------------
Name: Peter Eschmann
Title: Associate
CREDIT SUISSE FIRST BOSTON
By /s/ Robert Hetu
------------------------------------------
Name: Robert Hetu
Title: Director
By /s/ Mark Heron
------------------------------------------
Name: Mark Heron
Title: Associate
THE BANK OF NEW YORK
By /s/ Ernest Fung
------------------------------------------
Name: Ernest Fung
Title: Vice President
BANCO BILBAO VIZCAYA ARGENTARIA S.A.
By /s/ Jay Levit
------------------------------------------
Name: Jay Levit
Title: Vice President, Global Corporate
Banking
By /s/ John Martini
------------------------------------------
Name: John Martini
Title: Vice President, Corporate Banking
BANK OF TOKYO-MITSUBISHI TRUST COMPANY
By /s/ Jeffrey K. Stanton
------------------------------------------
Name: Jeffrey K. Stanton
Title: Vice President
20
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HSBC BANK USA
By
------------------------------------------
Name:
Title:
THE NORTHERN TRUST COMPANY
By
------------------------------------------
Name:
Title:
WESTDEUTSCHE LANDESBANK GIROZENTRALE,
NEW YORK BRANCH
By /s/ Barry S. Wadler
------------------------------------------
Name: Barry S. Wadler
Title: Associate Director
By /s/ Lisa M. Walker
------------------------------------------
Name: Lisa M. Walker
Title: Associate Director
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SCHEDULE I
SUBSIDIARY GUARANTORS
None
22
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SCHEDULE II
SPECIFIED ASSET
The Borrower's Connectivity Solutions business
23