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EXHIBIT 99.1
EXECUTION COPY
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$2,000,000,000
364-DAY
REVOLVING CREDIT FACILITY AGREEMENT
Dated as of February 22, 2001
among
LUCENT TECHNOLOGIES INC.,
THE LENDERS PARTY HERETO,
XXXXXXX XXXXX XXXXXX INC., as Syndication Agent, and
THE CHASE MANHATTAN BANK, as Administrative Agent
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JPMORGAN, a division of CHASE SECURITIES INC., and
XXXXXXX XXXXX XXXXXX INC.,
as Co-Lead Arrangers and Co-Bookrunners
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TABLE OF CONTENTS
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ARTICLE I.........................................................................................................1
Definitions.......................................................................................................1
SECTION 1.01. Defined Terms.................................................................1
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SECTION 1.02. Terms Generally..............................................................17
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SECTION 1.03. Accounting Terms; GAAP.......................................................17
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ARTICLE II The Credits...........................................................................................17
SECTION 2.01. Commitments..................................................................17
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SECTION 2.02. Loans........................................................................17
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SECTION 2.03. Borrowing Procedure..........................................................18
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SECTION 2.04. Conversion and Continuation of Loans.........................................18
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SECTION 2.05. Fees.........................................................................19
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SECTION 2.06. Repayment of Loans; Evidence of Debt.........................................20
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SECTION 2.07. Interest on Loans............................................................21
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SECTION 2.08. Default Interest.............................................................21
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SECTION 2.09. Alternate Rate of Interest...................................................21
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SECTION 2.10. Optional and Mandatory Termination and Reduction of Commitments..............22
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SECTION 2.11. Optional and Mandatory Repayment.............................................23
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SECTION 2.12. Reserve Requirements, Change in Circumstances................................23
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SECTION 2.13. Change in Legality...........................................................24
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SECTION 2.14. Indemnity....................................................................25
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SECTION 2.15. Pro Rata Treatment...........................................................26
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SECTION 2.16. Sharing of Setoff............................................................26
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SECTION 2.17. Payments.....................................................................26
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SECTION 2.18. Taxes........................................................................26
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SECTION 2.19. Mandatory Assignment; Commitment Termination.................................28
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ARTICLE III Representations and Warranties.......................................................................29
SECTION 3.01. Organization; Powers.........................................................29
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SECTION 3.02. Authorization................................................................29
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SECTION 3.03. Enforceability...............................................................29
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SECTION 3.04. Governmental Approvals.......................................................29
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SECTION 3.05. Financial Statements.........................................................29
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SECTION 3.06. Properties...................................................................30
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SECTION 3.07. Litigation and Environmental Matters.........................................30
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SECTION 3.08. Compliance with Laws and Agreements..........................................30
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SECTION 3.09. Federal Reserve Regulations..................................................30
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SECTION 3.10. Investment Company Act; Public Utility Holding Company Act...................31
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SECTION 3.11. Taxes........................................................................31
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SECTION 3.12. ERISA........................................................................31
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SECTION 3.13. Labor Matters................................................................31
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SECTION 3.14. Subsidiaries.................................................................31
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SECTION 3.15. Use of Proceeds..............................................................31
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SECTION 3.16. No Material Misstatements....................................................31
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SECTION 3.17. Security Documents...........................................................32
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ARTICLE IV Conditions of Lending.................................................................................32
SECTION 4.01. All Borrowings...............................................................32
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SECTION 4.02. Initial Conditions...........................................................33
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ARTICLE V Affirmative Covenants..................................................................................34
SECTION 5.01. Existence....................................................................34
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SECTION 5.02. Financial Statements, Reports, etc...........................................34
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SECTION 5.03. Maintaining Records..........................................................35
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SECTION 5.04. Notices of Material Events...................................................35
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SECTION 5.05. Existence; Conduct of Business...............................................36
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SECTION 5.06. Payment of Obligations.......................................................36
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SECTION 5.07. Maintenance of Properties; Insurance.........................................36
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SECTION 5.08. Inspection Rights............................................................36
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SECTION 5.09. Compliance...................................................................36
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SECTION 5.10. Use of Proceeds..............................................................36
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SECTION 5.11. Additional Subsidiary Guarantors and Collateral..............................36
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SECTION 5.12. Post-Closing Collateral Matters..............................................38
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ARTICLE VI Negative Covenants....................................................................................38
SECTION 6.01. Financial Covenants..........................................................38
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SECTION 6.02. Indebtedness.................................................................38
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SECTION 6.03. Liens........................................................................40
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SECTION 6.04. Fundamental Changes..........................................................40
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SECTION 6.05. Investments, Loans, Advances, Guarantees and Acquisitions....................41
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SECTION 6.06. Capital Expenditures.........................................................42
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SECTION 6.07. Hedging Agreements...........................................................42
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SECTION 6.08. Restricted Payments..........................................................42
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SECTION 6.09. Transactions with Affiliates.................................................42
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SECTION 6.10. Limitations on Sale and Leaseback Transactions and CMO Transactions..........43
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SECTION 6.11. Synthetic Purchase Agreements................................................43
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SECTION 6.12. External Sharing Debt........................................................43
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ARTICLE VII Events of Default....................................................................................43
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ARTICLE VIII The Administrative Agent............................................................................45
ARTICLE IX Miscellaneous.........................................................................................47
SECTION 9.01. Notices......................................................................47
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SECTION 9.02. Survival of Agreement........................................................47
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SECTION 9.03. Binding Effect...............................................................48
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SECTION 9.04. Successors and Assigns.......................................................48
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SECTION 9.05. Expenses; Indemnity..........................................................50
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SECTION 9.06. Applicable Law...............................................................50
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SECTION 9.07. Waivers; Amendment...........................................................50
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SECTION 9.08. Entire Agreement.............................................................51
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SECTION 9.09. Severability.................................................................51
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SECTION 9.10. Right of Setoff..............................................................51
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SECTION 9.11. Counterparts.................................................................51
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SECTION 9.12. Headings.....................................................................52
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SECTION 9.13. Release of Guarantees and Liens..............................................52
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SECTION 9.14. Confidentiality..............................................................52
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SECTION 9.15. Submission To Jurisdiction; Waivers..........................................53
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SECTION 9.16. WAIVER OF JURY TRIAL.........................................................53
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EXHIBITS
Exhibit A Form of Assignment and Acceptance
Exhibit B Form of Borrowing Request
Exhibit C Form of Collateral Sharing Agreement
Exhibit D Form of Guarantee and Collateral Agreement
Exhibit E Form of Mortgage
Exhibit F Form of Closing Certificate
Exhibit G-1 Form of Opinion of Cravath, Swaine & Xxxxx
Exhibit G-2 Form of Opinion of In-House Counsel to the Borrower
SCHEDULES
Schedule 1.01A Lender Commitments
Schedule 1.01B Mortgaged Properties
Schedule 1.01C Properties
Schedule 1.01D Excluded Subsidiaries
Schedule 3.14 Material Subsidiaries
Schedule 3.17(b) Mortgage Filing Offices
Schedule 6.02 Exiting Indebtedness
Schedule 6.03 Existing Liens
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364-DAY REVOLVING CREDIT FACILITY AGREEMENT, dated as of
February 22, 2001, among LUCENT TECHNOLOGIES INC., a Delaware corporation
("Lucent" or the "Borrower"), the several banks and other financial institutions
or entities from time to time parties to this Agreement (the "Lenders"), XXXXXXX
XXXXX BARNEY INC., as Syndication Agent (in such capacity, the "Syndication
Agent"), and THE CHASE MANHATTAN BANK, as Administrative Agent for the Lenders.
The Borrower has requested the Lenders to extend credit to the
Borrower to enable it to borrow on a revolving credit basis on and after the
Closing Date and at any time and from time to time prior to the Revolving
Maturity Date (as herein defined) a principal amount not in excess of
$2,000,000,000 at any time outstanding. The proceeds of such borrowings are to
be used for capital expenditures, refunding of debt, support for commercial
paper and general corporate purposes, including working capital of the Borrower
and its Subsidiaries. The Lenders are willing to extend such credit to the
Borrower on the terms and subject to the conditions herein set forth.
Accordingly, the Borrower, the Lenders and the Administrative
Agent agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement the
following terms shall have the meanings specified below:
"ABR Borrowing" shall mean a Borrowing comprised of ABR Loans.
"ABR Loan" shall mean any Loan bearing interest at a rate
determined by reference to the Alternate Base Rate in accordance with the
provisions of Article II.
"Administrative Agent" shall mean The Chase Manhattan Bank,
together with its affiliates, as an arranger of the Commitments and as the
administrative agent for the Lenders under this Agreement and the other Loan
Documents, together with any of its successors.
"Administrative Fees" shall have the meaning assigned to such
term in Section 2.05(b).
"Administrative Questionnaire" shall mean an administrative
questionnaire in a form approved by the Administrative Agent.
"Affiliate" shall mean, when used with respect to a specified
Person, another Person that directly or indirectly Controls or is Controlled by
or is under common Control with the Person specified.
"Agere" shall mean Agere Systems Inc., a Delaware corporation.
"Agere Assumable Credit Agreement" shall mean the $2,500,000,000
Credit Agreement to be entered into among Agere, Lucent, the lenders party
thereto and The Chase Manhattan Bank, as administrative agent.
"Agere Distribution" shall mean the distribution to the
Borrower's securityholders of all of the common stock of Agere held by the
Borrower after the Agere IPO.
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"Agere IPO" shall mean the consummation of an initial public
offering of the common stock of Agere.
"Agere IPO Exchange Proceeds" shall mean the principal amount of
Indebtedness of the Borrower exchanged for common stock of Agere in connection
with the Agere IPO. The Agere IPO Exchange Proceeds shall be deemed to be
received on the date of such exchange.
"Agere Stock Release" shall have the meaning set forth in
Section 9.13(b).
"Alternate Base Rate" shall mean, for any day, a rate per annum
(rounded upwards, if necessary, to the next 1/16 of 1%) equal to the greater of
(a) the Prime Rate in effect on such day and (b) the Federal Funds Effective
Rate in effect on such day plus 1/2 of 1%. For purposes hereof, "Prime Rate"
shall mean the rate of interest per annum publicly announced from time to time
by the Administrative Agent as its prime rate in effect at its principal office
in New York City, each change in the Prime Rate shall be effective on the date
such change is publicly announced as effective. For purposes hereof, "Federal
Funds Effective Rate" shall mean, for any day, the weighted average of the rates
on overnight Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers, as released on the next succeeding
Business Day by the Federal Reserve Bank of New York, or, if such rate is not so
released for any day which is a Business Day, the arithmetic average (rounded
upwards to the next 1/100th of 1%), as determined by the Administrative Agent,
of the quotations for the day of such transactions received by the
Administrative Agent from three Federal funds brokers of recognized standing
selected by it. If for any reason the Administrative Agent shall have determined
(which determination shall be conclusive absent manifest error) that it is
unable to ascertain the Federal Funds Effective Rate for any reason, including
the inability or failure of the Administrative Agent to obtain sufficient
quotations in accordance with the terms thereof, the Alternate Base Rate shall
be determined without regard to clause (b) of the first sentence of this
definition until the circumstances giving rise to such inability no longer
exist. Any change in the Alternate Base Rate due to a change in the Prime Rate
or the Federal Funds Effective Rate shall be effective on the effective date of
such change in the Prime Rate or the Federal Funds Effective Rate, respectively.
"Applicable Percentage" shall mean, on any date, the per annum
rate applicable on such date, as determined pursuant to the table set forth
below.
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Level I Level II Level III Level IV
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Baa2/BBB or better Baa3/BBB- Ba1/BB+ Ba2/BB or less
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Facility Fee Rate 0.25% 0.375% 0.50% 0.625%
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Eurodollar Loans 1.50% 1.625% 2.00% 2.375%
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ABR Loans 0.50% 0.625% 1.00% 1.375%
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The Applicable Percentage shall be based upon the Borrower Debt
Ratings most recently notified to the Administrative Agent by the Borrower,
provided that until the date that is six months after the Closing Date, Level II
shall be deemed to be in effect at any time when Level I would otherwise be in
effect. In the event that (a) the Borrower Debt Ratings fall within different
consecutive Levels, the higher-numbered Level shall apply, (b) the Borrower Debt
Ratings fall within different Levels, and the higher numbered Level is more than
one numbered Level higher than the lower numbered Level, then the next higher
numbered Level from that of the lower numbered Level shall apply, (c) the
Borrower Debt Rating of only one of the Rating Agencies is available, then the
Level determined by such Rating Agency shall apply and (d) a Borrower Debt
Rating is available from neither of the Rating Agencies, then Level IV shall
apply.
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"Asset Sale" shall mean any Disposition of property or series of
related Dispositions of property that yields Net Cash Proceeds to the Borrower
or any of its Subsidiaries in excess of $50,000,000, excluding (a) any
Disposition of inventory (including Dispositions of products built or purchased
for resale) in the ordinary course of business, (b) any Disposition of property
described on Schedule 1.01C, (c) Vendor Financing Dispositions, (d) any
Disposition of property consummated by a Foreign Subsidiary to the extent the
Net Cash Proceeds thereof cannot be dividended or otherwise distributed to the
Borrower or a Domestic Subsidiary without resulting in material adverse tax
consequences to the Borrower or any of its Subsidiaries (except to the extent
such Net Cash Proceeds are in fact so dividended), (e) any Disposition of
property consummated by an Excluded Subsidiary to the extent the Net Cash
Proceeds thereof cannot be dividended or otherwise distributed to the Borrower
or a Domestic Subsidiary that is not an Excluded Subsidiary and (f) any
Disposition of property by the Borrower or any Subsidiary to the Borrower or any
Subsidiary.
"Assignment and Acceptance" shall mean an assignment and
acceptance entered into by a Lender and an assignee, and accepted by the
Administrative Agent, in the form of Exhibit A.
"Attributable Debt" shall mean, as of the date of its
determination, the present value (discounted semiannually at an interest rate
implicit in the terms of the lease) of the obligation of a lessee for rental
payments pursuant to any Sale and Leaseback Transaction (reduced by the amount
of the rental obligations of any sublessee of all or part of the same property)
during the remaining term of such Sale and Leaseback Transaction (including any
period for which the lease relating thereto has been extended), such rental
payments not to include amounts payable by the lessee for maintenance and
repairs, insurance, taxes, assessments and similar charges and for contingent
rents (such as those based on sales); provided, however, that in the case of any
Sale and Leaseback Transaction in which the lease is terminable by the lessee
upon the payment of a penalty, Attributable Debt shall mean the lesser of the
present value of (a) the rental payments to be paid under such Sale and
Leaseback Transaction until the first date (after the date of such
determination) upon which it may be so terminated plus the then applicable
penalty upon such termination and (b) the rental payments required to be paid
during the remaining term of such Sale and Leaseback Transaction (assuming such
termination provision is not exercised).
"Board" shall mean the Board of Governors of the Federal Reserve
System of the United States.
"Borrower Debt Rating" shall mean any rating by a Rating Agency
with respect to the senior unsecured non-credit enhanced long-term debt of the
Borrower.
"Borrowing" shall mean a group of Loans of a single Type made by
the Lenders on a single date and as to which a single Interest Period is in
effect.
"Borrowing Request" shall mean a request made pursuant to
Section 2.03 in the form of Exhibit B.
"Business Day" shall mean any day (other than a day which is a
Saturday, Sunday or legal holiday in the State of New York) on which banks are
open for business in New York City; provided, however, that, when used in
connection with a Eurodollar Loan, the term "Business Day" shall also exclude
any day on which banks are not open for dealings in dollar deposits in the
London interbank market.
"Capital Lease Obligations" of any Person shall mean the
obligations of such Person to pay rent or other amounts under any lease of (or
other arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted
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for as capital leases on a balance sheet of such Person under GAAP, and the
amount of such obligations shall be the capitalized amount thereof determined in
accordance with GAAP.
"Capital Markets Event" shall mean the issuance or incurrence by
the Borrower or any of its Subsidiaries of (a) any Capital Stock, (b) any
Indebtedness for borrowed money, in respect of (1) debt securities issued in a
public offering or a private placement or (2) syndicated lines of credit or
other credit facilities or (c) Indebtedness pursuant to any receivables
securitization or CMO Transaction, but excluding (i) the Agere IPO and the Agere
IPO Exchange Proceeds, (ii) issuances of Capital Stock of the Borrower pursuant
to any compensation plan for directors, employees or consultants of the Borrower
and its Subsidiaries, (iii) refinancings of Indebtedness maturing within one
year from the date of the refinancing (regardless of whether the refinancing
occurs before or after the maturity date of the Indebtedness refinanced), (iv)
commercial paper and other Short-Term Indebtedness (other than Short-Term
Indebtedness under a syndicated line of credit or other credit facility), (v)
Indebtedness under the Lucent Credit Agreements, (vi) working capital facilities
entered into by Foreign Subsidiaries of the Borrower, (vii) any transaction
described in clause (a), (b) or (c) above consummated by a Foreign Subsidiary to
the extent the Net Cash Proceeds thereof cannot be dividended or otherwise
distributed to the Borrower or a Domestic Subsidiary without resulting in
material adverse tax consequences to the Borrower or any of its Subsidiaries
(except to the extent such Net Cash Proceeds are in fact so dividended), (viii)
any transaction described in clause (a), (b) or (c) above consummated by an
Excluded Subsidiary to the extent the Net Cash Proceeds thereof cannot be
dividended or otherwise distributed to the Borrower or a Domestic Subsidiary
that is not an Excluded Subsidiary, (ix) any CMO Transaction to the extent
involving property described on Schedule 1.01C and (x) intercompany issuances of
Capital Stock to the Borrower or any Subsidiary and intercompany Indebtedness
incurred pursuant to loans made by the Borrower or any Subsidiary.
"Capital Stock" shall mean any and all shares, interests,
participations or other equivalents (however designated) of capital stock of a
corporation, any and all equivalent ownership interests in a Person (other than
a corporation) and any and all warrants, rights or options to purchase any of
the foregoing.
"Cash Collateral Release Proceeds" shall mean the amount of any
deposit in the cash collateral account referred to in Section 2.10(c) released
to the Borrower upon the assumption by Agere pursuant to the Agere Assumable
Credit Agreement of the obligations of the Borrower under the Lucent Assumable
Credit Agreement as contemplated in Section 2.10(c)(y).
"Change in Control" shall mean (a) the acquisition of ownership,
directly or indirectly, beneficially or of record, by any "person" or "group"
(within the meaning of the Exchange Act and the rules of the SEC thereunder as
in effect on the Closing Date), of shares representing more than 30% of the
aggregate ordinary voting power represented by the issued and outstanding
capital stock of the Borrower or (b) occupation of a majority of the seats
(other than vacant seats) on the board of directors of the Borrower by Persons
who were neither (i) nominated by the board of directors of the Borrower nor
(ii) appointed by directors so nominated.
"Closing Date" shall mean February 22, 2001.
"CMO Transaction" shall mean any financing arrangement involving
the issuance of securities supported by Liens (or Indebtedness secured by Liens)
on real estate owned by the Borrower or any Subsidiary.
"Code" shall mean the Internal Revenue Code of 1986, as the same
may be amended from time to time.
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"Collateral" shall mean all property of the Loan Parties, now
owned or hereafter acquired, upon which a Lien is purported to be created by any
Security Document.
"Collateral Agent" shall mean The Chase Manhattan Bank, in its
capacity as Collateral Agent under the Security Documents and the Collateral
Sharing Agreement.
"Collateral Sharing Agreement" shall mean the Collateral Sharing
Agreement to be executed and delivered by the Collateral Agent and the Borrower,
substantially in the form of Exhibit C.
"Commitment" shall mean, as to any Lender, the obligation of
such Lender to make Loans in an aggregate principal amount not to exceed the
amount set forth under the heading "Commitment" opposite such Lender's name on
Schedule 1.01A or in the Assignment and Acceptance pursuant to which such Lender
became a party hereto, as the same may be changed from time to time pursuant to
the terms hereof.
"Confidential Information Memorandum" shall mean the
Confidential Information Memorandum dated February 2001 and furnished to certain
Lenders.
"Consolidated Net Income" shall mean, for any period, the
consolidated net income (or loss) of the Borrower and its Subsidiaries,
determined on a consolidated basis in accordance with GAAP; provided that there
shall be excluded (a) the income (or deficit) of Agere and its Subsidiaries and
(b) the income (or deficit) of any Person accrued prior to the date it becomes a
Subsidiary of the Borrower or is merged into or consolidated with the Borrower
or any of its Subsidiaries.
"Consolidated Net Worth" shall mean, at any date, all amounts
that would, in conformity with GAAP, be included on a consolidated balance sheet
of the Borrower and its Subsidiaries under stockholders' equity at such date,
determined without giving effect to any changes therein that result from (a) the
Agere IPO, (b) the reclassification of Agere as a discontinued operation, (c)
the Agere Distribution, (d) the after-tax effects of the first $4,000,000,000 of
pre-tax business restructuring charges taken after the Closing Date, (e)
additional charges, reserves or write-downs taken after the Closing Date in
connection with any vendor financing (including any loss on any Vendor Financing
Disposition in respect of such vendor financing) to the extent that the total
charges, reserves, write-downs and losses with respect to such vendor financing
exceed 125% of the Original Vendor Financing Reserve Percentage for such vendor
financing (or, if such Original Vendor Financing Reserve Percentage is less than
25%, such Original Vendor Financing Reserve Percentage plus 6.25%), (f) sales of
assets outside of the ordinary course of business or (g) currency translation
effects or the effects of compliance with FAS 133.
"Consolidated Operating EBITDA" shall mean, for any period,
Consolidated Net Income for such period plus, without duplication and to the
extent reflected as a charge in the statement of such Consolidated Net Income
for such period, the sum of (a) income tax expense (net of any tax adjustments),
(b) interest expense, amortization or writeoff of debt discount and debt
issuance costs and commissions, discounts and other fees and charges associated
with Indebtedness (including the Loans), (c) depreciation and amortization
expense, (d) amortization of intangibles (including, but not limited to,
goodwill) and organization costs, (e) charges relating to purchased in-process
research and development, (f) the after-tax effects of the first $4,000,000,000
of pre-tax business restructuring charges taken after the Closing Date, (g)
additional charges taken after the Closing Date in connection with vendor
financings and Vendor Financing Dispositions, (h) any extraordinary, unusual or
non-recurring expenses or losses (including, whether or not otherwise includable
as a separate item in the statement of such Consolidated Net Income for such
period, losses on sales of assets outside of the ordinary course of business),
and (i) any other non-cash charges, and minus, to the extent included in the
statement of such Consolidated Net Income for such period, the sum of (a)
interest income, (b) any extraordinary, unusual or non-recurring income or
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gains (including, whether or not otherwise includable as a separate item in the
statement of such Consolidated Net Income for such period, gains on the sales of
assets outside of the ordinary course of business) and (c) any other non-cash
income, all as determined on a consolidated basis.
"Contractual Obligation" shall mean, as to any Person, any
provision of any security issued by such Person or of any agreement, instrument
or other undertaking to which such Person is a party or by which it or any of
its property is bound.
"Control" shall mean the possession, directly or indirectly, of
the power to direct or cause the direction of the management or policies of a
Person, whether through the ownership of voting shares, by contract or
otherwise. "Controlling" and "Controlled" have meanings correlative thereto.
"Current Asset Ratio" shall mean, on any date of determination,
the ratio of (a) the sum of cash, Permitted Investments, receivables and
inventories of the Borrower and its Subsidiaries (other than Agere and its
Subsidiaries) that would, in conformity with GAAP, appear on a consolidated
balance sheet of the Borrower on such date to (b) the sum of (i) the aggregate
amount of the Lucent Commitments as of such date and (ii) the aggregate amount
of the External Sharing Debt (other than External Sharing Debt of the type
described in clause (a) of the definition of "External Specified Debt") as of
such date.
"Default" shall mean any event or condition which upon notice,
lapse of time or both would constitute an Event of Default.
"Disposition" shall mean, with respect to any property, any
sale, lease, sale and leaseback, assignment, conveyance, transfer or other
disposition thereof. The terms "Dispose", and "Disposed of" shall have
correlative meanings.
"dollars" or "$" shall mean lawful money of the United States of
America.
"Domestic Subsidiary" shall mean any Subsidiary of the Borrower
organized under the laws of any jurisdiction within the United States of
America.
"Environmental Laws" shall mean all laws, rules, regulations,
codes, ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any Governmental Authority,
relating in any way to the environment, preservation or reclamation of natural
resources, the management, release or threatened release of any Hazardous
Material or to health and safety matters.
"Environmental Liability" shall mean any liability, contingent
or otherwise (including any liability for damages, costs of environmental
remediation, fines, penalties or indemnities), of the Borrower or any Subsidiary
directly or indirectly resulting from or based, upon (a) violation of any
Environmental Law, (b) the generation, use, handling, transportation, storage,
treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous
Materials, (d) the release or threatened release of any Hazardous Materials into
the environment or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended from time to time.
"ERISA Affiliate" shall mean any trade or business (whether or
not incorporated) that, together with the Borrower, is treated as a single
employer under Section 414(b) or (c) of the Code or,
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solely for purposes of Section 302 of ERISA and Section 412 of the Code, is
treated as a single employer under Section 414 of the Code.
"ERISA Event" shall mean (a) any "reportable event", as defined
in Section 4043 of ERISA or the regulations issued thereunder with respect to a
Plan (other than an event for which the 30-day notice period is waived); (b) the
existence with respect to any Plan of an "accumulated funding deficiency" (as
defined in Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d)
of ERISA of an application for a waiver of the minimum funding standard with
respect to any Plan; (d) the incurrence by the Borrower or any of its ERISA
Affiliates of any liability under Title IV of ERISA with respect to the
termination of any Plan; (e) the receipt by the Borrower or any ERISA Affiliate
from the PBGC or a plan administrator of any notice relating to an intention to
terminate any Plan or Plans or to appoint a trustee to administer any Plan; (f)
the incurrence by the Borrower or any of its ERISA Affiliates of any liability
with respect to the withdrawal or partial withdrawal from any Plan or
Multiemployer Plan (unless such liability is promptly satisfied or otherwise
discharged); or (g) the receipt by the Borrower or any ERISA Affiliate of any
notice, or the receipt by any Multiemployer Plan from the Borrower or any ERISA
Affiliate of any notice, concerning the imposition of Withdrawal Liability
(unless such liability is promptly satisfied or otherwise discharged) or a
determination that a Multiemployer Plan is, or is expected to be, insolvent or
in reorganization, within the meaning of Title IV of ERISA.
"Eurodollar Borrowing" shall mean a Borrowing comprised of
Eurodollar Loans.
"Eurodollar Loan" shall mean any Loan bearing interest at a rate
determined by reference to the LIBO Rate in accordance with the provisions of
Article II.
"Event of Default" shall have the meaning assigned to such term
in Article VII.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended.
"Excluded Subsidiary" shall mean any Non-Wholly Owned Subsidiary
that is described on Schedule 1.01D.
"External Non-Specified Basket" shall mean $250,000,000.
"External Non-Specified Sharing Debt" shall mean External
Sharing Debt not constituting External Specified Debt.
"External Sharing Basket" shall mean $3,500,000,000.
"External Sharing Basket Debt" shall mean all External Sharing
Debt that is External Specified Debt of the type described in clause (b) or (c)
of the definition thereof.
"External Sharing Debt" shall mean all Indebtedness or other
obligations (other than Indebtedness and other obligations under any Lucent
Credit Agreement) secured by a Lien on the Collateral pursuant to the Security
Documents. For the purpose of determining the amount of External Sharing Debt
under any line of credit or other credit facility (whether pursuant to the
definition of "Current Asset Ratio", Section 6.12 or otherwise), the full amount
thereof shall be deemed to have been utilized. Only External Specified Debt and
External Non-Specified Sharing Debt shall be entitled to constitute External
Sharing Debt.
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"External Specified Debt" shall mean obligations of the Borrower
or any of its Subsidiaries under or in respect of (including pursuant to
Guarantees or other credit support): (a) letter of credit facilities, surety
bonds, Hedging Agreements, commercial credit card programs and cash management
arrangements in each case entered into in the ordinary course of business, (b)
lines of credit or other credit facilities entered into by Foreign Subsidiaries,
(c) Indebtedness of customers of the Borrower and its Subsidiaries (or
Affiliates of such customers) in respect of vendor financings (to the extent
such Indebtedness is subject to securitizations or held by third parties), (d)
the synthetic lease transactions totaling $101,818,080 arranged by The Bank of
Nova Scotia and The Sumitomo Bank Leasing and Finance, Inc. related to
commercial property in Aurora, Colorado and Alameda, California, (e) the Master
Participation Agreement, dated as of December 29, 2000, between the Borrower and
General Electric Capital Corporation, pursuant to which, the Borrower sold, with
full recourse, $500,000,000 of participation interests in certain vendor
financing loans which were held by the Borrower, (f) the Participation
Agreement, dated as of September 27, 2000, among the Borrower, as sponsor and
servicer, Insured Special Purpose Trust, KED Funding LLC, Insured Asset Funding
LLC, the investors party thereto, the APA purchasers party thereto, Citicorp
North America, Inc., as program agent, Citibank, N.A., as agent and collateral
agent, and Global Securitization Services, LLC, as administrator, pursuant to
which, the Borrower established a program whereby it would sell vendor
financings to an "Insured Special Purpose Trust" with limited recourse and the
other documents entered into in connection therewith, and (g) up to Euro
600,000,000 in respect of the vendor financing arrangements for MARABU covering
the cost of the equipment and services for the buildout of a "3G" wireless
network in the Federal Republic of Germany, as well as certain other costs.
"Facility Fees" shall have the meaning assigned to such term in
Section 2.05(a).
"Fees" shall mean, collectively, the Facility Fee and the
Administrative Fees.
"Financial Officer" of any corporation shall mean the Chief
Financial Officer, principal accounting officer, Treasurer or Assistant
Treasurer of such corporation.
"Foreign Material Subsidiary" shall mean any Foreign Subsidiary
that is a Material Subsidiary.
"Foreign Subsidiary" shall mean any Subsidiary of the Borrower
that is not a Domestic Subsidiary.
"GAAP" shall mean generally accepted accounting principles,
applied on a consistent basis.
"Governmental Authority" shall mean the government of the United
States of America, any other nation or any political subdivision thereof,
whether state or local, and any agency, authority, instrumentality, regulatory
body, court, central bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.
"Guarantee" of or by any Person (the "guarantor") shall mean any
obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other obligation of any
other Person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of the guarantor, direct or indirect,
(a) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation or to purchase (or to advance or
supply funds for the purchase of) any security for the payment thereof, (b) to
purchase or lease property, securities or services for the purpose of assuring
the owner of such Indebtedness or other obligation of the payment thereof, (c)
to maintain working capital, equity capital or
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any other financial statement condition or liquidity of the primary obligor so
as to enable the primary obligor to pay such Indebtedness or other obligation or
(d) as an account party in respect of any letter of credit or letter of guaranty
issued to support such Indebtedness or obligation; provided, that the term
Guarantee shall not include endorsements for collection or deposit in the
ordinary course of business. The amount of any Guarantee made by any guarantor
shall be deemed to be the lower of (a) an amount equal to the stated or
determinable amount of the primary obligation in respect of which such Guarantee
is made and (b) the maximum amount for which such guaranteeing person may be
liable pursuant to the terms of the instrument embodying such Guarantee, unless
such primary obligation and the maximum amount for which such guarantor may be
liable are not stated or determinable, in which case the amount of such
Guarantee shall be such guarantor's maximum reasonably anticipated liability in
respect thereof as determined by the Borrower in good faith.
"Guarantee and Collateral Agreement" shall mean the Guarantee
and Collateral Agreement to be executed and delivered by the Borrower and each
Subsidiary Guarantor, substantially in the form of Exhibit D.
"Hazardous Materials" shall mean all explosive or radioactive
substances or wastes and all hazardous or toxic substances, wastes or other
pollutants, including petroleum or petroleum distillates, asbestos or asbestos
containing materials, polychlorinated biphenyls, radon gas, infectious or
medical wastes and all other substances or wastes of any nature regulated
pursuant to any Environmental Law.
"Hedging Agreement" shall mean (a) any interest rate protection
agreement, foreign currency exchange agreement, commodity price protection
agreement or other interest or currency exchange rate or commodity price hedging
arrangement and (b) any hedging agreement in respect of the Borrower's common
stock entered into in order to hedge the Borrower's exposure under its stock
option plans or other benefit plans for employees, directors or consultants of
the Borrower and its Subsidiaries.
"Indebtedness" of any Person shall mean, without duplication,
(a) all obligations of such Person for borrowed money or with respect to
deposits or advances of any kind, (b) all obligations of such Person evidenced
by bonds, debentures, notes or similar instruments, (c) all obligations of such
Person upon which interest charges are customarily paid, (d) all obligations of
such Person under conditional sale or other title retention agreements relating
to property acquired by such Person, (e) all obligations of such Person in
respect of the deferred purchase price of property or services (excluding
current accounts payable incurred in the ordinary course of business), (f) all
Indebtedness of others secured by (or for which the holder of such Indebtedness
has an existing right, contingent or otherwise, to be secured by) any Lien on
property owned or acquired by such Person, whether or not the Indebtedness
secured thereby has been assumed, (g) all Guarantees by such Person of
Indebtedness of others, (h) all Capital Lease Obligations of such Person, (i)
all obligations, contingent or otherwise, of such Person as an account party in
respect of letters of credit and letters of guaranty and (j) all obligations,
contingent or otherwise, of such Person in respect of bankers' acceptances. The
Indebtedness of any Person shall include the Indebtedness of any other entity
(including any partnership in which such Person is a general partner) to the
extent such Person is liable therefor as a result of such Person's ownership
interest in or other relationship with such entity, except to the extent the
terms of such Indebtedness provide that such Person is not liable therefor.
"Indenture" shall mean the Indenture, dated as of April 1, 1996,
between the Borrower and The Bank of New York, as Trustee.
"Interest Payment Date" shall mean, with respect to any Loan,
the last day of the Interest Period applicable thereto and, in the case of a
Eurodollar Loan with an Interest Period of more than three months' duration,
each day that would have been an Interest Payment Date for such Loan had
successive
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Interest Periods of three months' duration been in effect with respect thereto
and, in addition, the date of any conversion of such Loan to a Loan of a
different Type.
"Interest Period" shall mean (a) as to any Eurodollar Borrowing,
the period commencing on the date of such Borrowing or on the last day of the
immediately preceding Interest Period applicable to such Borrowing, as the case
may be, and ending on the numerically corresponding day (or, if there is no
numerically corresponding day, on the last day) in the calendar month that is 1,
2, 3 or 6 months thereafter, as the Borrower may elect and (b) as to any ABR
Borrowing, the period commencing on the date of such Borrowing or on the last
day of the immediately preceding Interest Period applicable to such Borrowing,
as the case may be, and ending on the earliest of (i) the next succeeding March
31, June 30, September 30 or December 31, (ii) the Revolving Maturity Date or
the Term-out Maturity Date (as applicable), and (iii) the date such Borrowing is
converted to a Borrowing of a different Type in accordance with Section 2.04 or
repaid or prepaid in accordance with Section 2.06 or 2.11; provided, however,
that if any Interest Period would end on a day other than a Business Day, such
Interest Period shall be extended to the next succeeding Business Day unless, in
the case of Eurodollar Loans only, such next succeeding Business Day would fall
in the next calendar month, in which case such Interest Period shall end on the
next preceding Business Day. Interest shall accrue from and including the first
day of an Interest Period to but excluding the last day of such Interest Period.
"Investments" shall have the meaning set forth in Section 6.05.
"LIBO Rate" shall mean, with respect to any Eurodollar Borrowing
for any Interest Period, the rate appearing on Page 3750 of the Telerate Service
(or on any successor or substitute page of such Service, or any successor to or
substitute for such Service, providing rate quotations comparable to those
currently provided on such page of such Service, as determined by the
Administrative Agent from time to time for purposes of providing quotations of
interest rates applicable to dollar deposits in the London interbank market) at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, as the rate for dollar deposits with a
maturity comparable to such Interest Period. In the event that such rate is not
available at such time for any reason, then the "LIBO Rate" with respect to such
Eurodollar Borrowing for such Interest Period shall be the rate at which dollar
deposits of $5,000,000 and for a maturity comparable to such Interest Period are
offered by the principal London office of the Administrative Agent in
immediately available funds in the London interbank market at approximately
11:00 a.m., London time, two Business Days prior to the commencement of such
Interest Period.
"Lien" shall mean, with respect to any asset, (a) any mortgage,
deed of trust, lien, pledge, hypothecation, encumbrance, charge or security
interest in, on or of such asset, (b) the interest of a vendor or a lessor under
any conditional sale agreement, capital lease or title retention agreement (or
any financing lease having substantially the same economic effect as any of the
foregoing) relating to such asset and (c) in the case of securities, any
purchase option, call or similar right of a third party with respect to such
securities.
"Loan" shall have the meaning given such term in Section 2.01.
"Loan Documents" shall mean this Agreement, the Security
Documents and the Collateral Sharing Agreement.
"Loan Parties" shall mean the Borrower and each Subsidiary
Guarantor.
"Lucent Assumable Credit Agreement" shall mean the
$2,500,000,000 Credit Agreement to be entered into among the Borrower, the
lenders party thereto and The Chase Manhattan Bank, as
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administrative agent. The Lucent Assumable Credit Agreement will be terminated
upon the assumption by Agere of "Loans" made thereunder pursuant to the Agere
Assumable Credit Agreement.
"Lucent Commitments" shall mean, on any date of determination,
the Commitments hereunder and the "Commitments" under and as defined in each of
the Lucent Assumable Credit Agreement and the Lucent Five-Year Credit Agreement.
"Lucent Credit Agreements" shall mean the collective reference
to this Agreement, the Lucent Assumable Credit Agreement and the Lucent
Five-Year Credit Agreement.
"Lucent Five Year Credit Agreement" shall mean the
$2,000,000,000 Amended and Restated Credit Agreement dated as of the Closing
Date among the Borrower, the lenders party thereto and The Chase Manhattan Bank,
as administrative agent.
"Lucent Lender" shall mean any Person that is a Lender or is a
"Lender" under and as defined in either the Lucent Assumable Credit Agreement or
the Lucent Five-Year Credit Agreement
"MARABU" shall mean MARABU Vermogensverwaltung GmbH, a company
domiciled in the Federal Republic of Germany.
"Margin Regulations" shall mean Regulations T, U and X of the
Board as from time to time in effect, and all official rulings and
interpretations thereunder or thereof.
"Margin Stock" shall have the meaning given such term under
Regulation U of the Board.
"Material Adverse Effect" shall mean a materially adverse effect
on the business, assets, operations or condition, financial or otherwise, of the
Borrower and its Subsidiaries taken as a whole. It is understood that a change
in the Borrower Debt Ratings or other credit ratings by any rating agency shall
not, in and of itself, constitute a Material Adverse Effect.
"Material Domestic Subsidiary" shall mean any Domestic
Subsidiary that is a Material Subsidiary.
"Material Foreign Subsidiary" shall mean any Foreign Subsidiary
that is a Material Subsidiary.
"Material Indebtedness" shall mean Indebtedness (other than the
Loans), or obligations in respect of one or more Hedging Agreements, of any one
or more of the Borrower and its Subsidiaries in an aggregate principal amount
exceeding $100,000,000. For purposes of determining Material Indebtedness, the
"principal amount" of the obligations of the Borrower or any Subsidiary in
respect of any Hedging Agreement at any time shall be the maximum aggregate
amount (giving effect to any netting agreements) that the Borrower or such
Subsidiary would be required to pay if such Hedging Agreement were terminated at
such time.
"Material Subsidiary" shall mean any Subsidiary of the Borrower,
the assets or revenues of which are, at the time of determination, equal to or
greater than one percent of the consolidated assets or consolidated revenues,
respectively, of the Borrower and its Subsidiaries at such time (determined, in
the case of revenues, in respect of the most recent period of four consecutive
fiscal quarters of the Borrower for which the relevant financial information is
available). Such determinations shall, where
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applicable, be made excluding intercompany receivables and revenues that would
be eliminated upon consolidation in accordance with GAAP.
"Moody's" shall mean Xxxxx'x Investors Service, Inc.
"Mortgaged Properties" shall mean the real properties listed on
Schedule 1.01B, as to which the Collateral Agent for the benefit of the Secured
Parties shall be granted a Lien pursuant to the Mortgages.
"Mortgages" shall mean each of the mortgages and deeds of trust
made by any Loan Party in favor of, or for the benefit of, the Collateral Agent
for the benefit of the Secured Parties, substantially in the form of Exhibit E
(with such changes thereto as shall be advisable under the law of the
jurisdiction in which such mortgage or deed of trust is to be recorded).
"Multiemployer Plan" shall mean a multiemployer plan as defined
in Section 4001(a)(3) of ERISA.
"Net Cash Proceeds" shall mean (a) in connection with any Asset
Sale, the proceeds thereof in the form of cash and Permitted Investments
(including any such proceeds received by way of deferred payment of principal
pursuant to a note or installment receivable or purchase price adjustment
receivable or otherwise, but only as and when received) received by the Borrower
or any of its Subsidiaries, net of reasonable attorneys' fees, accountants'
fees, investment banking fees, amounts required to be applied to the repayment
of Indebtedness secured by a Lien expressly permitted hereunder (other than any
Lien pursuant to a Security Document) on any asset that is the subject of such
Asset Sale, amounts required to be applied pursuant to any mandatory prepayment
provisions in effect on the Closing Date (other than under the Lucent Credit
Agreements) as a result of such Asset Sale and other customary fees and expenses
actually incurred in connection therewith and net of taxes paid or reasonably
estimated to be payable as a result thereof (after taking into account any
available tax credits or deductions and any tax sharing arrangements) and (b) in
connection with any Capital Markets Event, the cash proceeds received by the
Borrower or any of its Subsidiaries from such issuance or incurrence, net of
reasonable attorneys' fees, investment banking fees, accountants' fees,
underwriting discounts and commissions and other customary fees and expenses
actually incurred in connection therewith; provided that any amounts described
above received by Agere or any of its Subsidiaries after the Agere IPO shall be
excluded from "Net Cash Proceeds". To the extent that any net amounts described
above are received by a Non-Wholly Owned Subsidiary, only a percentage thereof
equal to the Borrower's direct or indirect percentage ownership interest in such
Subsidiary (or such greater amount as shall have been actually dividended or
otherwise distributed to the Borrower or a Wholly Owned Subsidiary) shall
constitute "Net Cash Proceeds".
"Non-Wholly Owned Subsidiary" shall mean any Subsidiary of the
Borrower that is not a Wholly Owned Subsidiary.
"Obligations" shall mean the unpaid principal of and interest on
(including interest accruing after the maturity of the Loans and interest
accruing after the filing of any petition in bankruptcy, or the commencement of
any insolvency, reorganization or like proceeding, relating to the Borrower,
whether or not a claim for post-filing or post-petition interest is allowed in
such proceeding) the Loans and all other obligations and liabilities of the
Borrower to the Administrative Agent or to any Lender, whether direct or
indirect, absolute or contingent, due or to become due, or now existing or
hereafter incurred, which may arise under, out of, or in connection with, this
Agreement, any other Loan Document or any other document made, delivered or
given in connection herewith or therewith, whether on account of principal,
interest, fees, indemnities, costs, expenses (including all fees, charges and
disbursements of
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counsel to the Administrative Agent or to any Lender that are required to be
paid by the Borrower pursuant hereto) or otherwise.
"Original Vendor Financing Reserve Percentage" shall mean, with
respect to any vendor financing, the percentage that the total charges, reserves
and write-downs taken, or proposed to be taken, as of the Closing Date for such
vendor financing or the commitment with respect thereto (or, in the case of
vendor financing the commitment for which is established after the Closing Date,
the reserves and write-downs proposed to be taken as of the date of such
establishment) represents of the amount of such vendor financing.
"Other Facility Obligations" shall mean "Obligations" under and
as defined in either the Lucent Five-Year Credit Agreement or the Lucent
Assumable Credit Agreement.
"Permitted Encumbrances" shall mean:
(a) Liens imposed by law for taxes that are not yet due or are
being contested in compliance with Section 5.06;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's and other like Liens imposed by law, arising in the ordinary
course of business and securing obligations that are not overdue by more
than 30 days or are being contested in compliance with Section 5.06;
(c) pledges and deposits made in the ordinary course of business
in compliance with workers' compensation, unemployment insurance and
other social security laws or regulations;
(d) deposits of cash or Permitted Investments to secure the
performance of bids, trade contracts, leases, statutory obligations,
surety and appeal bonds, performance bonds and other obligations of a
like nature, in each case in the ordinary course of business;
(e) easements, zoning restrictions, rights-of-way and similar
encumbrances on real property imposed by law or arising in the ordinary
course of business that do not secure any monetary obligations and do
not materially detract from the value of the affected property or
interfere with the ordinary conduct of business of the Borrower or any
Subsidiary; and
(f) unexercised bankers' Liens;
provided that the term "Permitted Encumbrances" shall not include any Lien
securing Indebtedness.
"Permitted Investments" shall mean:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States
of America (or by any agency thereof to the extent such obligations are
backed by the full faith and credit of the United States of America), in
each case maturing within one year from the date of acquisition thereof;
(b) investments in commercial paper maturing within 270 days
from the date of acquisition thereof and having, at such date of
acquisition, the highest credit rating obtainable from S&P or from
Xxxxx'x;
(c) investments in certificates of deposit, banker's acceptances
and time deposits maturing within 180 days from the date of acquisition
thereof issued or guaranteed by or placed
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with, and money market deposit accounts issued or offered by, any
domestic office of any commercial bank organized under the laws of the
United States of America or any State thereof which has a combined
capital and surplus and undivided profits of not less than $500,000,000;
(d) fully collateralized repurchase agreements with a term of
not more than 30 days for securities described in clause (a) above and
entered into with a financial institution satisfying the criteria
described in clause (c) above;
(e) in the case of any Foreign Subsidiary, (i) marketable direct
obligations issued by, or unconditionally guaranteed by, the sovereign
nation in which such Foreign Subsidiary is organized and is conducting
business or issued by any agency of such sovereign nation and backed by
the full faith and credit of such sovereign nation, in each case
maturing within one year from the date of acquisition, so long as the
indebtedness of such sovereign nation is rated at least A by S&P or A2
by Xxxxx'x or carries an equivalent rating from a comparable foreign
rating agency or (ii) investments of the type and maturity described in
clauses (b) through (d) above of foreign obligors, which investments or
obligors have ratings described in such clauses or equivalent ratings
from comparable foreign rating agencies; and
(f) investments made in compliance with the "Lucent Technologies
Domestic Investment Guidelines", dated December 5, 1996, and the
supplement thereto with respect to investments outside the United States
of America, substantially as in effect on the Closing Date.
"Person" shall mean any natural person, corporation, limited
liability company, trust, joint venture, association, company, partnership,
Governmental Authority or other entity.
"Plan" shall mean any employee pension benefit plan (other than
a Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Borrower or
any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Qualified Non-Operating Proceeds" shall mean (a) the Agere IPO
Exchange Proceeds, (b) the aggregate Net Cash Proceeds received after the
Closing Date by the Borrower and its Subsidiaries (i) pursuant to receivables
securitizations after the aggregate Net Cash Proceeds from receivables
securitizations consummated after the Closing Date exceeds $750,000,000, (ii)
pursuant to Sale and Leaseback Transactions or CMO Transactions after the
aggregate Net Cash Proceeds from Sale and Leaseback Transactions and CMO
Transactions consummated after the Closing Date exceeds $750,000,000 or (iii)
pursuant to Asset Sales not constituting Sale and Leaseback Transactions and (c)
the aggregate Net Cash Proceeds received after the Closing Date by the Borrower
pursuant to private placements of Capital Stock of the Borrower.
"Rating Agencies" shall mean S&P and Xxxxx'x.
"Register" shall have the meaning given such term in Section
9.04(d).
"Required Lenders" shall mean, at any time, Lenders having Loans
and unused Commitments representing at least 51 % of the sum of the aggregate
outstanding principal amount of the Loans and the aggregate amount of the unused
Commitments.
"Requirement of Law" shall mean, as to any Person, the
Certificate of Incorporation and By-Laws or other organizational or governing
documents of such Person, and any law, treaty, rule or regulation or
determination of an arbitrator or a court or other Governmental Authority, in
each case
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applicable to or binding upon such Person or any of its property or to which
such Person or any of its property is subject.
"Responsible Officer" of any corporation shall mean any
executive officer or Financial Officer of such corporation and any other officer
or similar official thereof responsible for the administration of the
obligations of such corporation in respect of this Agreement.
"Restricted Payment" shall mean any dividend or other
distribution (whether in cash, securities or other property) with respect to any
shares of any class of Capital Stock of the Borrower or any Subsidiary, or any
payment (whether in cash, securities or other property), including any sinking
fund or similar deposit, on account of the purchase, redemption, retirement,
acquisition, cancellation or termination of any such shares of Capital Stock of
the Borrower or any Subsidiary or any option, warrant or other right to acquire
any such shares of Capital Stock of the Borrower or any Subsidiary.
"Revolving Maturity Date" shall mean February 21, 2002.
"Sale and Leaseback Transaction" shall mean any arrangement with
any Person providing for the leasing by the Borrower or any of its Subsidiaries
of any property that has been or is to be sold or transferred by the Borrower or
such Subsidiary to such Person, other than (a) leases between the Borrower and a
Subsidiary or between Subsidiaries of the Borrower and (b) leases of property
executed by the time of, or within 180 days after the latest of, the
acquisition, the completion of construction or improvement of such property, or
the commencement of commercial operation of such property.
"S&P" shall mean Standard and Poor's Ratings Services, a
division of The XxXxxx-Xxxx Companies, Inc.
"SEC" shall mean the Securities and Exchange Commission.
"Secured Parties" shall mean the collective reference to the
Lucent Lenders and the holders of the External Sharing Debt.
"Security Documents" shall mean the collective reference to the
Guarantee and Collateral Agreement, the Mortgages and all other security
documents hereafter delivered to the Collateral Agent or the Administrative
Agent granting a Lien on any property of any Person to secure the obligations
and liabilities of any Loan Party pursuant to the Lucent Credit Agreements, the
External Sharing Debt or any Guarantee in respect thereof.
"Short-Term Indebtedness" shall mean any Indebtedness of any
Person (other than under any line of credit or other credit facility) that
matures within one year from the date of its creation and is not renewable or
extendible at the option of such Person (other than pursuant to an extension
option contained in extendible commercial notes or other notes issued in lieu of
commercial paper).
"Subsidiary" shall mean any corporation, a majority of the
Voting Shares of which are at the time owned or controlled, directly or
indirectly, by the Borrower or by one or more Subsidiaries of the Borrower,
excluding any such Person that (a) would not constitute a consolidated
subsidiary of the Borrower in accordance with GAAP and (b) is not Controlled
(directly or indirectly) by the Borrower. Unless otherwise qualified, all
references to a "Subsidiary" or to "Subsidiaries" in this Agreement shall refer
to a Subsidiary or Subsidiaries of the Borrower. On and after the date of the
Agere IPO, Agere and its Subsidiaries shall be deemed not to constitute
Subsidiaries of the Borrower for the purposes of Articles III, V and VI.
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"Subsidiary Guarantors" shall mean each Wholly Owned Material
Domestic Subsidiary other than Agere and its Subsidiaries, provided, that if the
Agere IPO does not occur on or prior to April 30, 2001, Agere and its Wholly
Owned Material Domestic Subsidiaries shall become Guarantors as provided in
Section 5.11(c).
"Synthetic Purchase Agreement" shall mean any agreement pursuant
to which the Borrower or any of its Subsidiaries is or may become obligated to
make (a) any payment in connection with the purchase by any third party from a
Person other than the Borrower or a Subsidiary of any Capital Stock of the
Borrower or any Subsidiary or any Indebtedness for borrowed money of the
Borrower or any Subsidiary issued in a public offering or private placement or
(b) any payment the amount of which is determined by reference to the price or
value at any time of any such Capital Stock or Indebtedness; provided, that no
phantom stock or similar plan providing for payments only to current or former
directors, officers or employees of the Borrower or any Subsidiary (or to their
heirs or estates) shall be deemed to be a Synthetic Purchase Agreement.
"Taxes" shall mean any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Term-Out Maturity Date" shall mean February 26, 2003.
"Total Commitment" shall mean, at any time, the aggregate amount
of Commitments of all the Lenders, as in effect at such time.
"Transactions" shall have the meaning assigned to such term in
Section 3.02.
"Type", when used in respect of any Loan or Borrowing, shall
refer to the Rate by reference to which interest on such Loan or on the Loans
comprising such Borrowing is determined. For purposes hereof, "Rate" shall
include the LIBO Rate and the Alternate Base Rate.
"USD Equivalent" shall mean with respect to an amount in any
currency other than dollars on any date, the amount of dollars that may be
purchased with such amount of other currency at the Exchange Rate in effect on
such date. As used in this definition, "Exchange Rate" means, at any date of
determination thereof with respect to any currency, the spot rate of exchange
for the conversion of such currency into dollars determined by reference to such
rate publishing service as is customarily utilized by the Administrative Agent
for such purpose. Any such determination of the Exchange Rate shall be
conclusive absent manifest error.
"Vendor Financing Dispositions" shall mean Dispositions of
Indebtedness owing to the Borrower or any of its Subsidiaries consisting of
loans made pursuant to vendor financings.
"Voting Shares" shall mean, as to shares of a particular
corporation, outstanding shares of stock of any class of such corporation
entitled to vote in the election of directors, excluding shares entitled so to
vote only upon the happening of some contingency.
"Wholly Owned Material Domestic Subsidiary" shall mean any
Wholly Owned Subsidiary of the Borrower that is a Domestic Subsidiary and a
Material Subsidiary.
"Wholly Owned Subsidiary" shall mean, as to any Person, any
other Person all of the Capital Stock of which (other than directors' qualifying
shares required by law) is owned by such Person directly and/or through other
Wholly Owned Subsidiaries.
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"Withdrawal Liability" shall mean liability to a Multiemployer
Plan as a result of a complete or partial withdrawal from such Multiemployer
Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Terms Generally. For the purposes of this
Agreement and the other Loan Documents, (a) the definitions in Section 1.01
shall apply equally to both the singular and plural forms of the terms defined;
(b) whenever the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms; (c) the words "include,"
"includes" and "including" shall be deemed to be followed by the phrase "without
limitation"; (d) the words "asset" and "property" shall be construed to have the
same meaning and effect and to refer to any and all tangible and intangible
assets and properties, including cash, Capital Stock, securities, revenues,
accounts, leasehold interests and contract rights and (e) references to
agreements or other Contractual Obligations shall, unless otherwise specified,
be deemed to refer to such agreements or Contractual Obligations as amended,
supplemented, restated or otherwise modified from time to time. All references
herein to Articles, Sections, Exhibits and Schedules shall be deemed references
to Articles and Sections of, and Exhibits and Schedules to, this Agreement
unless the context shall otherwise require.
SECTION 1.03. Accounting Terms; GAAP. Except as otherwise
expressly provided herein, all terms of an accounting or financial nature shall
be construed in accordance with GAAP, as in effect from time to time; provided
that, if the Borrower notifies the Administrative Agent that the Borrower
requests an amendment to any provision hereof to eliminate the effect of any
change occurring after the Closing Date in GAAP or in the application thereof on
the operation of such provision (or if the Administrative Agent notifies the
Borrower that the Required Lenders request an amendment to any provision hereof
for such purpose), regardless of whether any such notice is given before or
after such change in GAAP or in the application thereof, then such provision
shall be interpreted on the basis of GAAP as in effect and applied immediately
before such change shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance herewith.
ARTICLE II
The Credits
SECTION 2.01. Commitments. Subject to the terms and conditions
and relying upon the representations and warranties herein set forth, each
Lender agrees, severally and not jointly, to make loans ("Loans") to the
Borrower, at any time and from time to time on and after the Closing Date and
until the earlier of the Revolving Maturity Date and the termination of the
Commitment of such Lender, in an aggregate principal amount at any time
outstanding not to exceed such Lender's Commitment. Such Commitments may be
terminated or reduced from time to time pursuant to Section 2.10.
Within the foregoing limits, the Borrower may borrow, pay or
prepay and reborrow Loans hereunder, on and after the Closing Date and until the
Revolving Maturity Date, subject to the terms, conditions and limitations set
forth herein.
SECTION 2.02. Loans. (a) Each Loan shall be made as part of a
Borrowing consisting of Loans made by the Lenders ratably in accordance with
their respective Commitments; provided, however, that the failure of any Lender
to make any Loan shall not in itself relieve any other Lender of its obligation
to lend hereunder (it being understood, however, that no Lender shall be
responsible for the failure of any other Lender to make any Loan required to be
made by such other Lender). The Loans comprising any Borrowing shall be in an
aggregate principal amount which is an integral multiple of $10,000,000 and not
less than $20,000,000 (or an aggregate principal amount equal to the remaining
balance of the available Commitments).
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(b) Each Borrowing shall be comprised entirely of Eurodollar
Loans or ABR Loans, as the Borrower may request pursuant to Section 2.03.
Borrowings of more than one Type may be outstanding at the same time, provided,
however, that the Borrower shall not be entitled to request any Borrowing which,
if made, would result in an aggregate of more than 10 separate Borrowings
comprised of Eurodollar Loans being outstanding hereunder at any one time. For
purposes of the foregoing, Loans having different Interest Periods, regardless
of whether they commence on the same date, shall be considered separate Loans.
(c) Subject to Section 2.04, each Lender shall make each Loan to
be made by it hereunder on the proposed date thereof by wire transfer of
immediately available funds to the Administrative Agent in New York, New York,
not later than 12:00 noon, New York City time, and the Administrative Agent
shall by 3:00 p.m., New York City time, credit the amounts so received to the
general deposit account of the Borrower with the Administrative Agent or, if a
Borrowing shall not occur on such date because any condition precedent herein
specified shall not have been met, return the amounts so received to the
respective Lenders. Loans shall be made by the Lenders pro rata, in accordance
with Section 2.15. Unless the Administrative Agent shall have received notice
from a Lender prior to the date of any Borrowing that such Lender will not make
available to the Administrative Agent such Lender's portion of such Borrowing,
the Administrative Agent may assume that such Lender has made such portion
available to the Administrative Agent on the date of such Borrowing in
accordance with this paragraph (c) and the Administrative Agent may, in reliance
upon such assumption, make available to the Borrower on such date a
corresponding amount. If and to the extent that such Lender shall not have made
such portion available to the Administrative Agent, such Lender and the Borrower
severally agree to repay to the Administrative Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the date
such amount is made available to the Borrower until the date such amount is
repaid to the Administrative Agent at (i) in the case of the Borrower, the
interest rate applicable at the time to the Loans comprising such Borrowing and
(ii) in the case of such Lender, the Federal Funds Effective Rate. If such
Lender shall repay to the Administrative Agent such corresponding amount, such
amount shall constitute such Lender's Loan as part of such Borrowing for
purposes of this Agreement.
SECTION 2.03. Borrowing Procedure. In order to request a
Borrowing, the Borrower shall hand deliver or telecopy to the Administrative
Agent a duly completed Borrowing Request (a) in the case of a Eurodollar
Borrowing, not later than 10:30 a.m., New York City time, three Business Days
before a proposed Borrowing and (b) in the case of an ABR Borrowing, not later
than 10:30 a.m., New York City time, on the day of a proposed Borrowing. Such
notice shall be irrevocable and shall in each case specify (i) whether the
Borrowing then being requested is to be a Eurodollar Borrowing or an ABR
Borrowing; (ii) the date of such Borrowing (which shall be a Business Day) and
the amount thereof, and (iii) if such Borrowing is to be a Eurodollar Borrowing,
the Interest Period with respect thereto, which shall not end after the
Revolving Maturity Date (or, if the Borrower has made the election referred to
in Section 2.06(a), the Term-Out Maturity Date). If no election as to the Type
of Borrowing is specified in any such notice, then the requested Borrowing shall
be an ABR Borrowing. If no Interest Period with respect to any Eurodollar
Borrowing is specified in any such notice, then the Borrower shall be deemed to
have selected an Interest Period of one month's duration. Notwithstanding any
other provision of this Agreement to the contrary, the Borrower shall not be
entitled to request any Borrowing if the Interest Period requested with respect
to such Borrowing would end after the Revolving Maturity Date. The
Administrative Agent shall promptly advise the Lenders of any notice given
pursuant to this Section 2.03 and of each Lender's portion of the requested
Borrowing.
SECTION 2.04. Conversion and Continuation of Loans. The Borrower
shall have the right at any time upon prior irrevocable notice to the
Administrative Agent (i) not later than 10:30 a.m., New York City time, on the
day of the conversion, to convert all or any part of any Eurodollar Borrowing
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into an ABR Borrowing, (ii) not later than 10:30 a.m., New York City time, three
Business Days prior to conversion or continuation, to convert any ABR Borrowing
into a Eurodollar Borrowing or to continue any Eurodollar Borrowing as a
Eurodollar Borrowing for an additional Interest Period and (iii) not later than
10:30 a.m., New York City time, three Business Days prior to conversion, to
convert the Interest Period, with respect to any Eurodollar Borrowing to another
permissible Interest Period, subject in each case to the following:
(a) if less than all the outstanding principal amount of any
Borrowing shall be converted or continued, the aggregate principal amount of the
Borrowing converted or continued shall be an integral multiple of $10,000,000
and not less than $20,000,000;
(b) accrued interest on a Borrowing (or portion thereof) being
converted shall be paid by the Borrower at the time of conversion;
(c) if any Eurodollar Borrowing is converted at a time other
than the end of the Interest Period applicable thereto, the Borrower shall pay,
upon demand, any amounts due to the Lenders pursuant to Section 2.14;
(d) any portion of a Borrowing maturing or required to be repaid
in less than one month may not be converted into or continued as a Eurodollar
Borrowing;
(e) any portion of a Eurodollar Borrowing which cannot be
continued as a Eurodollar Borrowing by reason of clause (d) above shall be
automatically converted at the end of the Interest Period in effect for such
Eurodollar Borrowing into an ABR Borrowing;
(f) no Interest Period may be selected for any Eurodollar
Borrowing that would end later than the Revolving Maturity Date or the Term-Out
Maturity Date; and
(g) at the request of the Required Lenders to the Administrative
Agent, no Borrowing shall be continued as or converted into a Eurodollar
Borrowing at any time when an Event of Default has occurred and is continuing
and, upon such request, each Eurodollar Borrowing shall be converted into an ABR
Borrowing at the end of the Interest Period applicable thereto.
Each notice of the Borrower pursuant to this Section 2.04 shall
be irrevocable and shall refer to this Agreement and specify (i) the identity
and amount of the Borrowing that the Borrower requests to be converted or
continued, (ii) whether such Borrowing is to be converted to or continued as a
Eurodollar Borrowing or an ABR Borrowing, (iii) if such notice requests a
conversion, the date of such conversion (which shall be a Business Day) and (iv)
if such Borrowing is to be converted to or continued as a Eurodollar Borrowing,
the Interest Period with respect thereto. If no Interest Period is specified in
any such notice with respect to any conversion to or continuation as a
Eurodollar Borrowing, the Borrower shall be deemed to have selected an Interest
Period of one month's duration. If the Borrower shall not have given notice in
accordance with this Section 2.04 to convert or continue any Borrowing, such
Borrowing shall, at the end of the Interest Period applicable thereto (unless
repaid pursuant to the terms hereof), automatically be converted or continued
into a new Interest Period as an ABR Borrowing.
SECTION 2.05. Fees. (a) The Borrower agrees to pay to each
Lender, through the Administrative Agent, on each March 31, June 30, September
30 and December 31 (with the first payment being due on March 31, 2001) and on
the date on which the Commitment of such Lender shall be terminated as provided
herein, a facility fee equal to the Applicable Percentage per annum in effect
from time to time on the average daily amount of the Commitment of such Lender,
whether used or unused, during the preceding quarter (or other period commencing
on the date of this Agreement, or
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ending with the Revolving Maturity Date or any date on which the Commitment of
such Lender shall be terminated). In addition, if the Term-Out Maturity Date is
selected by the Borrower, the Borrower agrees to pay to each Lender, through the
Administrative Agent, on each March 31, June 30, September 30 and December 31
(with the first payment being due on March 31, 2002) and on the date on which
the Loans made by such Lender shall have been paid in full, a facility fee
(together with the facility fee referred to in the preceding sentence, the
"Facility Fee") equal to the Applicable Percentage per annum in effect from time
to time on the average daily outstanding principal amount of the Loans held by
such Lender during the preceding quarter (or other period commencing on the
Revolving Maturity Date, or ending with the Term-Out Maturity Date or any date
on which the Loans made by such Lender shall have been paid in full). All
Facility Fees shall be computed on the basis of the actual number of days
elapsed in a year of 365 or 366 days, as the case may be. The Facility Fee due
to each Lender shall commence to accrue on the date of this Agreement, and shall
cease to accrue on the earlier of the Revolving Maturity Date (or, if
applicable, the Term-Out Maturity Date) and the termination of the Commitment of
such Lender as provided herein (or, if applicable, the payment in full of the
Loans made by such Lender).
(b) The Borrower agrees to pay the Administrative Agent, for its
own account the administrative and other fees (the "Administrative Fees") at the
times and in the amounts separately agreed upon between the Borrower and the
Administrative Agent.
(c) All Fees shall be paid on the dates due, in immediately
available funds, to the Administrative Agent for distribution, if and as
appropriate, among the Lenders. Once paid, none of the Fees shall be refundable
under any circumstances.
SECTION 2.06. Repayment of Loans; Evidence of Debt. (a) The
Borrower hereby agrees that the outstanding principal balance of each Loan shall
be payable on the Revolving Maturity Date, provided, that the Borrower may, upon
written notice to the Administrative Agent given at least three Business Days
prior to the Revolving Maturity Date and so long as no Event of Default shall
have occurred and be continuing on the Revolving Maturity Date and the
representations and warranties set forth in Article III hereof (other than
Sections 3.05(b) and 3.07) shall be true and correct on the Revolving Maturity
Date in all material respects, extend the date upon which the principal amount
of the Loans of the Lenders outstanding as of the Revolving Maturity Date will
be due and payable to the Term-Out Maturity Date. If the Borrower gives notice
to the Administrative Agent in accordance with the preceding proviso, the
Borrower hereby agrees that the outstanding principal balance of each Loan
outstanding on the Revolving Maturity Date shall be payable on the Term-Out
Maturity Date.
(b) Each Loan shall bear interest on the outstanding principal
balance thereof as set forth in Section 2.07.
(c) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness of the Borrower to
the appropriate lending office of such Lender resulting from each Loan made by
such lending office of such Lender from time to time, including the amounts of
principal and interest payable and paid such lending office of such Lender from
time to time under this Agreement.
(d) The Administrative Agent shall maintain the Register
pursuant to Section 9.04(d), and a subaccount for each Lender, in which Register
and accounts (taken together) shall be recorded (i) the amount of each Loan made
hereunder, the Type of each Loan made and the Interest Period applicable
thereto, (ii) the amount of any principal or interest due and payable or to
become due and payable from the Borrower to each Lender hereunder and (iii) the
amount of any sum received by the Administrative Agent hereunder from the
Borrower and each Lender's share thereof.
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(e) The entries made in the Register and accounts maintained
pursuant to paragraph (c) and (d) of this Section 2.06 shall, to the extent
permitted by applicable law, be prima facie evidence of the existence and
amounts of the obligations of the Borrower therein recorded; provided, however,
that the failure of any Lender or the Administrative Agent to maintain such
account, such Register or such subaccount, as applicable, or any error therein
shall not in any manner affect the obligation of the Borrower to repay the Loans
made to the Borrower by such Lender in accordance with their terms.
SECTION 2.07. Interest on Loans. (a) Subject to the provisions
of Section 2.08, the Loans comprising each Eurodollar Borrowing shall bear
interest (computed on the basis of the actual number of days elapsed over a year
of 360 days) at a rate per annum equal to the LIBO Rate for the Interest Period
in effect for such Borrowing plus the Applicable Percentage from time to time in
effect.
(b) Subject to the provisions of Section 2.08, the Loans
comprising each ABR Borrowing shall bear interest (computed on the basis of the
actual number of days elapsed over a year of 365 or 366 days, as the case may
be, for periods during which the Alternate Base Rate is determined by reference
to the Prime Rate and 360 days for periods during which the Alternate Base Rate
is determined by reference to the Federal Funds Effective Rate) at a rate per
annum equal to the Alternate Base Rate plus the Applicable Percentage from time
to time in effect.
(c) Interest on each Loan shall be payable on each Interest
Payment Date applicable to such Loan except as otherwise provided in this
Agreement. The applicable LIBO Rate or Alternate Base Rate for each Interest
Period or day within an Interest Period, as the case may be, shall be determined
in good faith by the Administrative Agent, and such determination shall be
conclusive absent manifest error.
SECTION 2.08. Default Interest. If the Borrower shall default in
the payment of the principal of or interest on any Loan or any other amount
becoming due hereunder, whether by scheduled maturity, notice of prepayment,
acceleration or otherwise, the Borrower shall on demand from time to time from
the Administrative Agent pay interest, to the extent permitted by law, on such
defaulted amount up to (but not including) the date of actual payment (after as
well as before judgment) at a rate per annum (computed on the basis of the
actual number of days elapsed over a year of 360 days) equal to 2% above the
rate otherwise applicable to ABR Loans.
SECTION 2.09. Alternate Rate of Interest. In the event and on
each occasion, that on the day two Business Days prior to the commencement of
any Interest Period for a Eurodollar Borrowing the Administrative Agent shall
have determined in good faith (a) that dollar deposits in the principal amounts
of the Eurodollar Loans comprising such Borrowing are not generally available in
the London interbank market or (b) that reasonable means do not exist for
ascertaining the LIBO Rate, the Administrative Agent shall, as soon as
practicable thereafter, give telecopy notice of such determination to the
Borrower and the Lenders. In the event of any such determination under clauses
(a) or (b) above, until the Administrative Agent shall have advised the Borrower
and the Lenders that the circumstances giving rise to such notice no longer
exist, any request by the Borrower for a Eurodollar Borrowing shall be deemed to
be a request for an ABR Borrowing. In the event a Lender notifies the
Administrative Agent that the rates at which dollar deposits are being offered
will not adequately and fairly reflect the cost to such Lender of making or
maintaining its Eurodollar Loan during such Interest Period, the Administrative
Agent shall notify the Borrower of such notice and until the Lender shall have
advised the Administrative Agent that the circumstances giving rise to such
notice no longer exist, (i) such Eurodollar Loan will automatically, on the last
day of the then existing Interest Period therefore, convert into an ABR Loan,
(ii) any request by the Borrower for a Eurodollar Borrowing shall be deemed a
request for an ABR Borrowing for the same Interest Period with respect to such
Lender and (iii) the obligation of such Lender to make, or to convert, Loans
into Eurodollar Loans shall be suspended until the Administrative Agent shall
notify the Borrower that such Lender has determined that such circumstances no
longer exist. Each
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determination by the Administrative Agent hereunder shall be in good faith and
conclusive absent manifest error.
SECTION 2.10. Optional and Mandatory Termination and Reduction
of Commitments. (a) The Commitments shall be automatically terminated on the
Revolving Maturity Date (whether or not the Term-Out Maturity Date is selected
by the Borrower).
(b) Upon at least three Business Days' prior irrevocable
telecopy notice to the Administrative Agent, the Borrower may at any time in
whole permanently terminate, or from time to time in part permanently reduce,
the Total Commitment; provided, however, that each partial reduction of the
Total Commitment shall be in an integral multiple of $10,000,000 and in a
minimum principal amount of $20,000,000.
(c) No later than the date that is three Business Days after the
receipt of any Net Cash Proceeds from any Capital Markets Event or Asset Sale,
the receipt of up to $2,500,000,000 of Agere IPO Exchange Proceeds or the
receipt of any Cash Collateral Release Proceeds (any such Net Cash Proceeds,
Agere IPO Exchange Proceeds or Cash Collateral Release Proceeds, "Prepayment
Proceeds"), the (i) Total Commitment and (ii) from and after the "Closing Date"
under the Lucent Assumable Credit Agreement until the consummation of the Agere
IPO, the "Total Exposure" under the Lucent Assumable Credit Agreement shall
automatically be permanently and ratably reduced by an amount equal to such
Prepayment Proceeds (excluding an aggregate amount utilized between this
Agreement and the Lucent Assumable Credit Agreement of (i) up to $750,000,000 of
Net Cash Proceeds from receivables securitizations, (ii) up to $750,000,000 of
Net Cash Proceeds from Sale and Leaseback Transactions and CMO Transactions and
(iii) an amount of other Net Cash Proceeds from Capital Markets Events up to an
amount equal to the aggregate principal amount of the Borrower's 6.90% Notes due
July 15, 2001 retired in connection with the transaction described in the
definition of "Agere IPO Exchange Proceeds"); provided, that the Total
Commitment and the "Total Exposure" under the Lucent Assumable Credit Agreement
shall not be so reduced by the amount of such Prepayment Proceeds received on or
after the date of the Agere IPO to the extent that (x) such Prepayment Proceeds
constitute Qualified Non-Operating Proceeds or Cash Collateral Release Proceeds
and (y) the aggregate amount of Qualified Non-Operating Proceeds and Cash
Collateral Release Proceeds (including such Prepayment Proceeds) received on or
after the date of the Agere IPO does not exceed $2,500,000,000. Notwithstanding
the foregoing, so long as no Default or Event of Default is in existence, if the
amount of Prepayment Proceeds required to be applied between this Agreement and
the Lucent Assumable Credit Agreement as described above on a particular date is
less than $20,000,000, such application may, at the option of the Borrower, be
deferred until the next succeeding date on which the aggregate amount of
Prepayment Proceeds required to be applied as described above (including any
deferred amounts) equals at least $20,000,000. At the option of the Borrower,
the portion of any Net Cash Proceeds received from any Capital Markets Event or
Asset Sale that is to reduce the "Total Exposure" under the Lucent Assumable
Credit Agreement as provided above may, in lieu of being used to reduce such
"Total Exposure", be deposited in a cash collateral account to secure the
obligations of the Borrower under the Lucent Assumable Credit Agreement, with
such deposit (and any earnings thereon) to be released to the Borrower (x) upon
the Borrower optionally reducing such "Total Exposure" by an amount equal to
such deposit or (y) upon the assumption by Agere pursuant to the Agere Assumable
Credit Agreement of the obligations of the Borrower under the Lucent Assumable
Credit Agreement. Any such collateral account shall be established with the
"Administrative Agent" under the Lucent Assumable Credit Agreement pursuant to a
cash collateral agreement reasonably satisfactory to such "Administrative
Agent."
(d) Each reduction in the Total Commitment hereunder shall be
made ratably among the Lenders in accordance with their respective Commitments.
The Borrower shall pay to the Administrative Agent for the account of the
Lenders, on the date of each termination or reduction of the Commitments,
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the Facility Fees on the amount of the Commitments so terminated or reduced
accrued through the date of such termination or reduction.
SECTION 2.11. Optional and Mandatory Repayment (a) The Borrower
shall have the right at any time and from time to time to prepay any Borrowing,
in whole or in part, upon giving telecopy notice (or telephone notice promptly
confirmed by telecopy notice) to the Administrative Agent: (i) before 10:00
a.m., New York City time, three Business Days prior to prepayment, in the case
of Eurodollar Loans and (ii) before 10:00 a.m., New York City time, one Business
Day prior to prepayment, in the case of ABR Loans; provided, however, that each
partial prepayment shall be in an amount which is an integral multiple of
$10,000,000 and not less than $20,000,000. Each notice of prepayment from the
Borrower shall specify the prepayment date and the principal amount of each
Borrowing (or portion thereof) to be prepaid, shall be irrevocable and shall
commit the Borrower to prepay such Borrowing (or portion thereof) by the amount
stated therein on the date stated therein.
(b) On the date of any termination or reduction of the
Commitments pursuant to Section 2.10, the Borrower shall pay or prepay so much
of the Borrowings as shall be necessary in order that the aggregate principal
amount of the Loans outstanding will not exceed the Total Commitment, after
giving effect to such termination or reduction; provided, that this paragraph
shall not apply to Loans outstanding on the Revolving Maturity Date if the
maturity of the Loans has been extended to the Term-Out Maturity Date.
(c) In the event that the Term-Out Maturity Date is selected,
from and after the Revolving Maturity Date amounts described in Section 2.10(c)
that prior to the Revolving Maturity Date would have been applied to reduce the
Total Commitment shall instead be required to be applied to prepay the Loans no
later than the date that such reduction would have been required.
(d) All prepayments under this Section 2.11 shall be subject to
Section 2.14 but otherwise without premium or penalty. All prepayments under
this Section 2.11 shall be accompanied by accrued interest on the principal
amount being prepaid to the date of payment.
SECTION 2.12. Reserve Requirements, Change in Circumstances. (a)
Notwithstanding any other provision herein, if after the date of this Agreement
any change in applicable law or regulation or in the interpretation or
administration thereof by any governmental authority charged with the
interpretation or administration thereof (whether or not having the force of
law) shall result in the imposition, modification or applicability of any
reserve, special deposit or similar requirement against assets of, deposits
with, or for the account of, or credit extended by any Lender, or shall result
in the imposition on such Lender or the London interbank market any other
condition affecting this Agreement, such Lender's Commitment or any Eurodollar
Loan made by such Lender, and the result of any of the foregoing shall be to
increase the cost to such Lender of making or maintaining any Eurodollar Loan or
to reduce the amount of any sum received or receivable by such Lender hereunder
(whether of principal, interest or otherwise) by an amount deemed by such Lender
to be material, then the Borrower will pay to such Lender upon demand such
additional amount or amounts as will compensate such Lender for such additional
costs incurred or reduction suffered.
(b) If any Lender shall have determined that the applicability
of any law, rule, regulation or guideline adopted after the Closing Date
pursuant to or arising out of the July 1988 report of the Basle Committee on
Banking Regulations and Supervisory Practices entitled "International
Convergence of Capital Measurement and Capital Standards," or the adoption after
the Closing Date of any other law, rule, regulation or guideline regarding
capital adequacy, or any change in any of the foregoing or in the interpretation
or administration of any of the foregoing by any Governmental Authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or compliance by any
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Lender (or any lending office of such Lender) or any Lender's holding company
with any request or directive regarding capital adequacy (whether or not having
the force of law) of any such authority, central bank or comparable agency, has
or would have the effect of reducing the rate of return on such Lender's capital
or on the capital of such Lender's holding company, if any, as a consequence of
this Agreement, such Lender's Commitment or the Loans made by such Lender
pursuant hereto to a level below that which such Lender or such Lender's holding
company could have achieved but for such adoption, change or compliance (taking
into consideration such Lender's policies and the policies of such Lender's
holding company with respect to capital adequacy) by an amount deemed by such
Lender to be material, then from time to time the Borrower shall pay to such
Lender such additional amount or amounts as will compensate such Lender or such
Lender's holding company for any such reduction suffered. It is acknowledged
that this Agreement is being entered into by the Lenders on the understanding
that the Lenders will not be required to maintain capital against their
Commitments under currently applicable laws, regulations and regulatory
guidelines.
(c) A certificate of the Lender setting forth such amount or
amounts (including computation of such amount or amounts) as shall be necessary
to compensate the Lender or its holding company as specified in paragraph (a) or
(b) above, as the case may be, shall be delivered to the Borrower and such
amount or amounts may be reviewed by the Borrower. Unless the Borrower disagrees
in good faith with the computation of the amount or amounts in such certificate,
the Borrower shall pay to the Lender, within 10 Business Days after receipt by
the Borrower of such certificate delivered by the Lender, the amount shown as
due on any such certificate. If the Borrower, after receipt of any such
certificate from the Lender, disagrees with the Lender on the computation of the
amount or amounts owed to the Lender pursuant to paragraph (a) or (b) above, the
Lender and the Borrower shall negotiate in good faith to promptly resolve such
disagreement. In either case, however, the Lender shall have a duty to mitigate
the damages that may arise as a consequence of paragraph (a) or (b) above to the
extent that such mitigation will not, in the judgment of the Lender, entail any
cost or disadvantage to the Lender that the Lender is not reimbursed or
compensated for by the Borrower.
(d) Failure on the part of any Lender to demand compensation for
any increased costs or reduction in amounts received or receivable or reduction
in return on capital with respect to any period shall not constitute a waiver of
such Lender's right to demand compensation with respect to any other period;
provided that if any Lender fails to make such demand within 45 days after it
obtains knowledge of the event giving rise to the demand such Lender shall, with
respect to amounts payable pursuant to this Section 2.12 resulting from such
event only be entitled to payment under this Section 2.12 for such costs
incurred or reduction in amounts or return on capital from and after the date 45
days prior to the date that such Lender does make such demand. The protection of
this Section shall be available to each Lender regardless of any possible
contention of the invalidity or inapplicability of the law, rule, regulation,
guideline or other change or condition which shall have occurred or been
imposed.
SECTION 2.13. Change in Legality. (a) Notwithstanding any other
provision herein, if any change in any law or regulation or in the
interpretation thereof by any Governmental Authority charged with the
administration or interpretation thereof shall make it unlawful for any Lender
to make or maintain any Eurodollar Loan or to give effect to its obligations as
contemplated hereby with respect to any Eurodollar Loan, then, by 30 days' (or
such shorter period as shall be required in order to comply with applicable law)
written notice to the Borrower and to the Administrative Agent, such Lender may:
(i) declare that Eurodollar Loans will not thereafter be
made by such Lender hereunder, whereupon any request by the Borrower for
a Eurodollar Borrowing shall, as to such Lender only, be deemed a
request for an ABR Loan unless such declaration shall be subsequently
withdrawn; and
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(ii) require that all outstanding Eurodollar Loans made by it
be converted to ABR Loans, in which event all such Eurodollar Loans
shall be automatically converted to ABR Loans as of the effective date
of such notice as provided in paragraph (b) below.
In the event any Lender shall exercise its rights under (i) or
(ii) above, all payments and prepayments of principal which would otherwise have
been applied to repay the Eurodollar Loans that would have been made by such
Lender or the converted Eurodollar Loans of such Lender shall instead be applied
to repay the ABR Loans made by such Lender in lieu of, or resulting from the
conversion of, such Eurodollar Loans.
(b) For purposes of this Section 2.13, a notice to the Borrower
by any Lender shall be effective as to each Eurodollar Loan, if lawful, on the
last day of the Interest Period currently applicable to such Eurodollar Loan; in
all other cases such notice shall be effective on the date of receipt by the
Borrower.
SECTION 2.14. Indemnity. The Borrower shall indemnify each
Lender against any out-of-pocket loss or expense which such Lender may sustain
or incur as a consequence of (a) any failure by the Borrower to borrow or to
refinance, convert or continue any Loan hereunder after irrevocable notice of
such borrowing, refinancing, conversion or continuation has been given pursuant
to Section 2.03 or 2.04, (b) any payment, prepayment or conversion, or an
assignment required under Section 2.19, of a Eurodollar Loan by the Borrower
required by any other provision of this Agreement or otherwise made or deemed
made on a date other than the last day of the Interest Period, if any,
applicable thereto, (c) any default by the Borrower in payment or prepayment of
the principal amount of any Loan or any part thereof or interest accrued
thereon, as and when due and payable (at the due date thereof, whether by
scheduled maturity, acceleration, irrevocable notice of prepayment or otherwise)
or (d) the occurrence of any Event of Default.
In the case of a Eurodollar Loan, such out-of-pocket loss or
expense shall be limited to an amount equal to the excess, if any, of (i) its
cost of obtaining the funds for the Loan being paid, prepaid, converted or not
borrowed, converted or continued (based on the LIBO Rate applicable thereto) for
the period from the date of such payment, prepayment, conversion or failure to
borrow, convert or continue to the last day of the Interest Period for such Loan
(or, in the case of a failure to borrow, convert or continue, the Interest
Period for such Loan which would have commenced on the date of such failure)
over (ii) the amount of interest that would be realized by the Lender in
reemploying the funds so paid, prepaid, not borrowed, converted or continued for
such period or Interest Period, as the case may be. This Section shall not apply
to ABR Loans.
A certificate of the Lender setting forth such amount or amounts
(including the computation of such amount or amounts) as shall be necessary to
compensate the Lender or its holding company for the out-of-pocket expenses
defined herein shall be delivered to the Borrower and such amount or amounts may
be reviewed by the Borrower. If the Borrower, after receipt of any such
certificate from the Lender, disagrees in good faith with the Lender on the
computation of the amount or amounts owed to the Lender pursuant to this Section
2.14, the Lender and the Borrower shall negotiate in good faith to promptly
resolve such disagreement.
Each Lender shall have a duty to mitigate the damages to such
Lender that may arise as a consequence of clause (a), (b), (c) or (d) above to
the extent that such mitigation will not in the judgment of such Lender, entail
any cost or disadvantage to such Lender that such Lender is not reimbursed or
compensated for by the Borrower.
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SECTION 2.15. Pro Rata Treatment. Except as required under
Sections 2.09, 2.12, 2.13, 2.14, 2.18 and 2.19, each Borrowing, each payment or
prepayment of principal of any Borrowing, each payment of interest on the Loans,
each payment of the Facility Fees, each reduction of the Commitments and each
refinancing or conversion of any Borrowing with a Borrowing of any Type, shall
be allocated pro rata among the Lenders in accordance with their respective
Commitments (or, if such Commitments shall have expired or been terminated, in
accordance with the respective principal amounts of their outstanding Loans).
Each Lender agrees that in computing such Lender's portion of any Borrowing to
be made hereunder, the Administrative Agent may, in its discretion, round each
Lender's percentage of such Borrowing to the next higher or lower whole dollar
amount.
SECTION 2.16. Sharing of Setoff. Each Lender agrees that if it
shall, through the exercise of a right of banker's lien, setoff or counterclaim
against the Borrower, or pursuant to a secured claim under Section 506 of Title
11 of the United States Code or other security or interest arising from, or in
lieu of, such secured claim, received by such Lender under any applicable
bankruptcy, insolvency or other similar law or otherwise, or by any other means
(excluding for the purpose of this Section 2.16, Section 2.09, Section 2.12,
Section 2.13, Section 2.14, Section 2.18 and Section 2.19), obtain payment
(voluntary or involuntary) in respect of any Loan or Loans as a result of which
the unpaid principal portion of the Loans of such Lender shall be
proportionately less than the unpaid principal portion of the Loans of any other
Lender, it shall be deemed simultaneously to have purchased from such other
Lender at face value, and shall promptly pay to such other Lender the purchase
price for, a participation in the Loans of such other Lender, so that the
aggregate unpaid principal amount of the Loans and participations in the Loans
held by each Lender shall be in the same proportion to the aggregate unpaid
principal amount of all Loans then outstanding as the principal amount of its
Loans prior to such exercise of banker's lien, setoff or counterclaim or other
event was to the principal amount of all Loans outstanding prior to such
exercise of banker's lien, setoff or counterclaim or other event; provided,
however, that, if any such purchase or purchases or adjustments shall be made
pursuant to this Section 2.16 and the payment giving rise thereto shall
thereafter be recovered, such purchase or purchases or adjustments shall be
rescinded to the extent of such recovery and the purchase price or prices or
adjustment restored without interest. The Borrower expressly consents to the
foregoing arrangements and agrees that any Lender holding a participation in a
Loan deemed to have been so purchased may exercise any and all rights of
banker's lien, setoff or counterclaim with respect to any and all moneys owing
by the Borrower to such Lender by reason thereof as fully as if such Lender had
made a Loan directly to the Borrower in the amount of such participation.
SECTION 2.17. Payments. (a) The Borrower shall make each payment
(including principal of or interest on any Borrowing or any Fees or other
amounts) hereunder, without setoff or counterclaim, from an account in the
United States not later than 12:00 noon, New York City time, on the date when
due in dollars to the Administrative Agent at its offices at 000 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx, in immediately available funds.
(b) Whenever any payment (including principal of or interest on
any Borrowing or any Fees or other amounts) hereunder shall become due, or
otherwise would occur, on a day that is not a Business Day, such payment may be
made on the next succeeding Business Day, and such extension of time shall in
such case be included in the computation of interest or Fees, if applicable.
SECTION 2.18. Taxes. (a) Any and all payments by the Borrower
hereunder shall be made, in accordance with Section 2.17, free and clear of, and
without deduction for any and all present or future taxes, levies, imposts,
deductions, charges or withholdings, and all liabilities with respect thereto
imposed by the United States or any political subdivision or taxing authority
thereof, excluding taxes imposed on the Administrative Agent's or any Lender's
(or any transferee's or assignee's, including a participation holder's (any such
entity a "Transferee")) net income and franchise taxes imposed on the
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Administrative Agent or any Lender (or Transferee) by the United States or any
political subdivision or taxing authority thereof (all such nonexcluded taxes,
levies, imposts, deductions, charges, withholdings and liabilities being
hereinafter referred to as "Taxes"). If the Borrower shall be required by law to
deduct any Taxes from or in respect of any sum payable hereunder to any Lender
(or any Transferee) or the Administrative Agent (i) the sum payable shall be
increased by the amount necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section
2.18) such Lender (or Transferee) or the Administrative Agent (as the case may
be) shall receive an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions and (iii) the
Borrower shall pay the full amount deducted to the relevant taxing authority or
other Governmental Authority in accordance with applicable law.
(b) In addition, the Borrower agrees to pay any present or
future stamp or documentary taxes or any other excise or property taxes, charges
or similar levies which arise from any payment made hereunder or from the
execution, delivery or registration of, or otherwise with respect to, this
Agreement imposed by the United States or any political subdivision or taxing
authority thereof (hereinafter referred to as "Other Taxes").
(c) The Borrower will indemnify each Lender (or Transferee) and
the Administrative Agent for the full amount of Taxes and Other Taxes (including
any Taxes or Other Taxes on amounts payable under this Section 2.18) paid by
such Lender (or Transferee) or the Administrative Agent, as the case may be,
with respect to the Borrower and any liability (including penalties, interest
and reasonable out-of-pocket expenses) arising therefrom or with respect thereto
(other than any such liability that results from the gross negligence or willful
misconduct of the Lender (or Transferee) or Agent), whether or not such Taxes or
Other Taxes were correctly or legally asserted by the relevant taxing authority
or other Governmental Authority. Such indemnification shall be made within 30
days after the date any Lender (or Transferee) or the Administrative Agent, as
the case may be, makes written demand therefor. If the Borrower or any Lender
(or Transferee) or the Administrative Agent shall determine that Taxes or Other
Taxes may not have been correctly or legally assessed by the relevant taxing
authority or other Governmental Authority, and that a Lender (or Transferee) or
the Administrative Agent may be entitled to receive a refund in respect of Taxes
or Other Taxes, it shall promptly notify the other party of the availability of
such refund and such Lender (or Transferee) or the Administrative Agent shall,
within 30 days after receipt of a request by the Borrower, apply for such refund
at the Borrower's expense. If any Lender (or Transferee) or the Administrative
Agent receives a refund or credit or offset against another tax liability in
respect of any Taxes or Other Taxes for which such Lender (or Transferee) or the
Administrative Agent has received payment from the Borrower hereunder it shall
promptly repay such refund or credit or offset against another tax liability
(including any interest received by such Lender (or Transferee) or the
Administrative Agent from the taxing authority with respect to the refund with
respect to such Taxes or Other Taxes) to the Borrower, net of all out-of-pocket
expenses of such Lender; provided that the Borrower, upon the request of such
Lender (or Transferee) or the Administrative Agent, agrees to return such refund
or credit or offset against another tax liability (plus penalties, interest or
other charges) to such Lender (or Transferee) or the Administrative Agent in the
event such Lender (or Transferee) or the Administrative Agent is required to
repay such refund or credit or offset against another tax liability. For
purposes of the preceding sentence, the Administrative Agent or any Lender shall
determine in good faith and in its discretion the amount of any credit or offset
against another tax liability and shall be under no obligation to make available
to the Borrower any of its tax returns or any other information that it deems to
be confidential.
(d) As soon as practicable after the date of any payment of
Taxes or Other Taxes withheld by the Borrower in respect of any payment to any
Lender (or Transferee) or the Administrative Agent, the Borrower will furnish to
the Administrative Agent, at its address referred to in Section 9.01, the
original or a certified copy of a receipt evidencing payment thereof.
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(e) Without prejudice to the survival of any other agreement
contained herein, the agreements and obligations contained in Section 2.12, 2.14
and this Section 2.18 shall survive the payment in full of the principal of and
interest on all Loans made hereunder.
(f) Each Lender (or Transferee) which is organized outside the
United States shall, prior to the due date of the first payment by the Borrower
to such Lender (or Transferee) hereunder, deliver to the Borrower such
certificates, documents or other evidence, as required by the Code or Treasury
Regulations issued pursuant thereto, including Internal Revenue Service Form
8-BEN or Form 8-ECI and any other certificate or statement of exemption required
by Treasury Regulation Section 1.1441-1(a) or Section 1.1441-6(c) or any
subsequent version thereof, properly completed and duly executed by such Lender
(or Transferee) establishing that such payment is (i) not subject to withholding
under the Code because such payment is effectively connected with the conduct by
such Lender (or Transferee) of a trade or business in the United States or (ii)
totally exempt from United States tax under a provision of an applicable tax
treaty. Each such Lender (or Transferee) that changes its funding office shall
promptly notify the Borrower of such change and, upon written request from the
Borrower, shall deliver any new certificates, documents or other evidence
required pursuant to the preceding sentence prior to the immediately following
due date of any payment by the Borrower hereunder. Unless the Borrower and the
Administrative Agent have received forms or other documents satisfactory to them
indicating that payments hereunder are not subject to United States withholding
tax, notwithstanding paragraph (a), the Borrower or the Administrative Agent
shall withhold taxes from such payments at the applicable statutory rate in the
case of payments to or for any Lender (or Transferee) organized under the laws
of a jurisdiction outside the United States.
(g) The Borrower shall not be required to pay any additional
amounts to any Lender (or Transferee) in respect of Taxes and Other Taxes
pursuant to paragraphs (a), (b) and (c) above if the obligation to pay such
additional amounts would not have arisen but for a failure by such Lender (or
Transferee) to comply with the provisions of paragraph (f) above unless such
Lender (or Transferee) is unable to comply with paragraph (f) because of (i) a
change in applicable law, regulation or official interpretation thereof or (ii)
an amendment, modification or revocation of any applicable tax treaty or a
change in official position regarding the application or interpretation thereof,
in each case after the Closing Date (and, in the case of a Transferee, after the
date of assignment or transfer).
(h) Any Lender (or Transferee) claiming any additional amounts
payable under this Section 2.18 shall (i) to the extent legally able to do so,
upon written request from the Borrower, file any certificate or document if such
filing would avoid the need for or reduce the amount of any such additional
amounts which may thereafter accrue, and the Borrower shall not be obligated to
pay such additional amounts if, after the Borrower's request, any Lender (or
Transferee) could have filed such certificate or document and failed to do so;
or (ii) consistent with legal and regulatory restrictions, use reasonable
efforts to change the jurisdiction of its applicable lending office if the
making of such change would avoid the need for or reduce the amount of any
additional amounts which may thereafter accrue and would not, in the sole
determination of such Lender (or Transferee), be otherwise disadvantageous to
such Lender (or Transferee).
SECTION 2.19. Mandatory Assignment; Commitment Termination.
In the event any Lender delivers to the Administrative Agent or the Borrower, as
appropriate, a certificate in accordance with Section 2.12(c) or a notice in
accordance with Section 2.09 or 2.13, or the Borrower is required to pay any
additional amounts or other payments in accordance with Section 2.18, the
Borrower may, at its own expense, and in its sole discretion require such Lender
to transfer and assign in whole or in part, without recourse (in accordance with
Section 9.04), all or part of its interests, rights and obligations under this
Agreement to an assignee which shall assume such assigned obligations (which
assignee may be another Lender, if a Lender accepts such assignment); provided
that (a) such assignment shall not conflict
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with any law, rule or regulation or order of any court or other Governmental
Authority and (b) the Borrower or such assignee shall have paid to the assigning
Lender in immediately available funds the principal of and interest accrued to
the date of such payment on the Loans made by it hereunder and all other amounts
owed to it hereunder.
ARTICLE III
Representations and Warranties
The Borrower represents and warrants to each of the Lenders
that:
SECTION 3.01. Organization; Powers. The Borrower and each of its
Material Domestic Subsidiaries (a) is duly organized, validly existing and in
good standing under the laws of the jurisdiction of its organization, (b) 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, (c) is qualified
to do business in every jurisdiction where such qualification is required,
except where the failure so to qualify would not result in a Material Adverse
Effect, and (d) has the corporate power and authority to execute, deliver and
perform its obligations under each Loan Document to which it is a party and, in
the case of the Borrower, to borrow funds hereunder.
SECTION 3.02. Authorization. The execution, delivery and
performance by each Loan Party of the Loan Documents to which it is a party and
the Borrowings of the Borrower hereunder (collectively, the "Transactions") (a)
have been duly authorized by all requisite corporate actions and (b) will not
(i) violate (A) any provision of any Requirement of Law (including, without
limitation, the Margin Regulations) or of the certificate of incorporation or
other constitutive documents or by-laws of the Borrower or any of its
Subsidiaries (B) any order of any Governmental Authority or (C) any material
Contractual Obligation to which the Borrower or any of its Subsidiaries is a
party or by which the Borrower, any of its Subsidiaries or any of their property
is or may be bound, (ii) 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 material Contractual Obligation or (iii) result in the creation or
imposition of any lien upon any property or assets of the Borrower or any of its
Subsidiaries (other than pursuant to the Security Documents).
SECTION 3.03. Enforceability. Each Loan Document has been duly
executed and delivered by each Loan Party party thereto and constitutes a valid
and legally binding obligation of each such Loan Party enforceable against each
such Loan Party in accordance with its terms.
SECTION 3.04. Governmental Approvals. 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 Transactions, except as
necessary to perfect Liens granted under the Security Documents.
SECTION 3.05. Financial Statements. (a) The Borrower has
heretofore furnished to the Administrative Agent and the Lenders copies of its
consolidated financial statements as of and for the fiscal year ended September
30, 2000, as included in the Borrower's report on Form 10-K dated December 27,
2000, and for the quarter ended December 31, 2000, as included in the Borrower's
report on Form 10-Q dated February 14, 2001. Such financial statements present
fairly, in all material respects, the consolidated financial condition and the
results of operations of the Borrower as of such dates in accordance with GAAP,
subject, in the case of such statements for the quarter ended December 31, 2000,
to year-end audit adjustments and the absence of footnotes. Neither the Borrower
nor any of its Subsidiaries has any material Guarantee obligations, contingent
liabilities and liabilities for taxes, or any long-term leases or unusual
forward or long-term commitments, including any interest rate or foreign
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currency swap or exchange transaction or other obligation in respect of
derivatives, that would be required to be reflected in the most recent financial
statements referred to in this paragraph and are not so reflected.
(b) Since December 31, 2000, there has been no material adverse
change in the business, assets, operations, or condition, financial or
otherwise, of the Borrower and its Subsidiaries, taken as a whole, except as
described in the Confidential Information Memorandum. It is understood that a
change in the Borrower Debt Ratings or other credit ratings by any rating agency
shall not, in and of itself, constitute such a material adverse change.
SECTION 3.06. Properties. (a) Each of the Borrower and its
Subsidiaries has good title to, or valid leasehold interests in, all its real
and personal property material to the business of the Borrower and its
Subsidiaries, except for minor defects in title that do not interfere with its
ability to conduct its business as currently conducted or to utilize such
properties for their intended purposes.
(b) Each of the Borrower and its Subsidiaries owns, or is
licensed to use, all trademarks, tradenames, copyrights, patents and other
intellectual property material to the business of the Borrower and its
Subsidiaries, and the use thereof by the Borrower and its Subsidiaries does not
infringe upon the rights of any other Person, except for any such infringements
that, individually or in the aggregate, could not reasonably be expected to
result in a Material Adverse Effect.
SECTION 3.07. Litigation and Environmental Matters. (a) There
are no actions, suits or proceedings by or before any arbitrator or Governmental
Authority pending against or, to the knowledge of the Borrower, threatened
against or affecting the Borrower or any of its Subsidiaries (i) as to which
there is a reasonable possibility of an adverse determination and that, if
adversely determined, could reasonably be expected, individually or in the
aggregate, to result in a Material Adverse Effect (except as disclosed in the
financial statements referred to in Section 3.05(a)) or (ii) that involve any
Loan Document or the Transactions.
(b) Except as, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect, neither the
Borrower nor any of its Subsidiaries (i) has failed to comply with any
Environmental Law or to obtain, maintain or comply with any permit, license or
other approval required under any Environmental Law, (ii) has become subject to
any Environmental Liability, (iii) has received notice of any claim with respect
to any Environmental Liability or (iv) knows of any basis for any Environmental
Liability.
SECTION 3.08. Compliance with Laws and Agreements. Each of the
Borrower and its Subsidiaries is in compliance with all laws, regulations and
orders of any Governmental Authority applicable to it or its property and all
indentures, agreements and other instruments binding upon it or its property,
except where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect. No Default has
occurred and is continuing.
SECTION 3.09. Federal Reserve Regulations. (a) Neither the
Borrower nor any of its Subsidiaries is engaged principally, or as one of its
important activities, in the business of extending credit for the purpose of
purchasing or carrying Margin Stock.
(b) No part of the proceeds of any Loan will be used, whether
directly or indirectly, and whether immediately, incidentally or ultimately, for
any purpose which entails a violation of, or which is inconsistent with, the
provisions of the Margin Regulations.
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SECTION 3.10. Investment Company Act; Public Utility Holding
Company Act. Neither the Borrower nor any of its Subsidiaries is (a) an
"investment company" as defined in, or subject to regulation under, the
Investment Company Act of 1940 or (b) a "holding company" as defined in, or
subject to regulation under, the Public Utility Holding Company Act of 1935.
SECTION 3.11. Taxes. Each of the Borrower and its Subsidiaries
has timely filed or caused to be filed all Tax returns and reports required to
have been filed and has paid or caused to be paid all Taxes required to have
been paid by it, except (a) any Taxes that are being contested in good faith by
appropriate proceedings and for which the Borrower or such Subsidiary, as
applicable, has set aside on its books adequate reserves or (b) to the extent
that the failure to do so could not reasonably be expected to result in a
Material Adverse Effect.
SECTION 3.12. ERISA. No ERISA Event has occurred or is
reasonably expected to occur that, when taken together with all other such ERISA
Events for which liability is reasonably expected to occur, could reasonably be
expected to result in a Material Adverse Effect. The present value of all
accumulated benefit obligations under each Plan (based on the assumptions used
for purposes of Statement of Financial Accounting Standards No. 87) did not, as
of the date of the most recent financial statements reflecting such amounts,
exceed the fair market value of the assets of such Plan.
SECTION 3.13. Labor Matters. Except as, in the aggregate, could
not reasonably be expected to have a Material Adverse Effect: (a) there are no
strikes or other labor disputes against the Borrower or any of its Subsidiaries
pending or, to the knowledge of the Borrower, threatened; (b) hours worked by
and payment made to employees of the Borrower or any of its Subsidiaries have
not been in violation of the Fair Labor Standards Act or any other applicable
Requirement of Law dealing with such matters; and (c) all payments due from
either the Borrower or any of its Subsidiaries on account of employee health and
welfare insurance have been paid or accrued as a liability on the books of the
Borrower or the relevant Subsidiary.
SECTION 3.14. Subsidiaries. As of the Closing Date, (a) Schedule
3.14 sets forth the name and jurisdiction of incorporation of each Material
Subsidiary and, as to each such Subsidiary, the percentage of each class of
Capital Stock directly owned by any Loan Party and (b) there are no outstanding
subscriptions, options, warrants, calls, rights or other agreements or
commitments (other than stock options or rights granted to employees, directors
or consultants and directors' qualifying shares) of any nature relating to any
Capital Stock of any Material Subsidiary, except as created by the Security
Documents.
SECTION 3.15. Use of Proceeds. All proceeds of the Loans shall
be used for capital expenditures, refunding of debt, support for commercial
paper and general corporate purposes of the Borrower, including working capital.
SECTION 3.16. No Material Misstatements. No report, financial
statement or other written information furnished by or on behalf of the Borrower
to the Administrative Agent or any Lender pursuant to the Confidential
Information Memorandum or Section 3.05 or 5.02 hereof contains as of the Closing
Date in the case of the Confidential Information Memorandum and Section 3.05, or
will contain as of the date furnished in the case of Section 5.02, any material
misstatement of fact or omits or will omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under which
they were or will be made, not misleading; provided, that the projections and
pro forma financial information contained in the materials referenced above are
based upon good faith estimates and assumptions believed by management of the
Borrower to be reasonable at the time made, it being recognized by the Lenders
that such financial information as it relates to future events is not to be
viewed
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as fact and that actual results during the period or periods covered by such
financial information may differ from the projected results set forth therein by
a material amount.
SECTION 3.17. Security Documents. (a) The Guarantee and
Collateral Agreement is effective to create in favor of the Collateral Agent,
for the benefit of the Secured Parties, a legal, valid and enforceable security
interest in the Collateral described therein and proceeds thereof. In the case
of the Pledged Stock described in the Guarantee and Collateral Agreement that is
a certificated security, when stock certificates representing such Pledged Stock
are delivered to the Collateral Agent, and in the case of the other Collateral
described in the Guarantee and Collateral Agreement, when financing statements
and other filings and actions contemplated to be made or taken by the Guarantee
and Collateral Agreement are made or taken, the Guarantee and Collateral
Agreement shall constitute to the extent contemplated by the Guarantee and
Collateral Agreement, a fully perfected Lien on, and security interest in, all
right, title and interest of the Loan Parties in such Collateral and the
proceeds thereof, as security for the Obligations (as defined in the Guarantee
and Collateral Agreement), in each case prior and superior in right to any other
Person (except, in the case of Collateral other than Pledged Stock, Liens
permitted by Section 6.03).
(b) Each Mortgage that has been executed and delivered by a Loan
Party is effective to create in favor of the Collateral Agent, for the benefit
of the Secured Parties, a legal, valid and enforceable Lien on the properties
described therein and proceeds thereof, the property description included in
each such Mortgage is complete and correct in all material respects and, when
the Mortgages are filed in the offices specified on Schedule 3.17(b) (or, in the
case of Mortgages delivered after the Closing Date, such filing offices as shall
be notified by the Borrower to the Collateral Agent), each such Mortgage shall
constitute a fully perfected Lien on, and security interest in, all right, title
and interest of the Loan Parties in the Mortgaged Properties and the proceeds
thereof, as security for the Obligations (as defined in the relevant Mortgage),
in each case prior and superior in right to any other Person, except Liens
permitted by Section 6.03. Schedule 1.01B lists each parcel of real property in
the United States owned in fee simple by the Borrower or any Subsidiary as of
the Closing Date that meets the criteria specified on said Schedule.
ARTICLE IV
Conditions of Lending
The obligations of the Lenders to make Loans hereunder are
subject to the satisfaction of the following conditions:
SECTION 4.01. All Borrowings. On the date of each Borrowing:
(a) The Administrative Agent shall have received a notice of
such Borrowing as required by Section 2.03.
(b) The representations and warranties set forth in the Loan
Documents (other than, in the case of any Borrowing exclusively utilized to
repay maturing commercial paper of the Borrower, Sections 3.05(b) and 3.07 of
Article III hereof) 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.
(c) The Borrower shall be in compliance with all the terms and
provisions set forth in the Loan Documents in all material respects, and at the
time of and immediately after such Borrowing no Event of Default or Default
shall have occurred and be continuing.
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(d) Each Borrowing shall be deemed to constitute a
representation and warranty by the Borrower on the date of such Borrowing as to
the matters specified in paragraphs (b) and (c) of this Section 4.01.
SECTION 4.02. Initial Conditions. On or prior to the Closing
Date:
(a) Credit Agreement, Guarantee and Collateral Agreement. The
Administrative Agent shall have received (i) this Agreement, executed and
delivered by the Administrative Agent, the Borrower and each Person listed on
Schedule 1.01A, (ii) the Guarantee and Collateral Agreement, executed and
delivered by the Borrower and each Subsidiary Guarantor, (iii) an
Acknowledgement and Consent in the form attached to the Guarantee and Collateral
Agreement, executed and delivered by each Issuer (as defined therein), if any,
that is not a Loan Party and (iv) the Collateral Sharing Agreement, executed and
delivered by the Collateral Agent and the Borrower.
(b) Approvals. All governmental and third party approvals
necessary in connection with the Transactions shall have been obtained and be in
full force and effect.
(c) Lien Searches. The Administrative Agent shall have received
the results of a recent Lien search in such the jurisdictions where assets of
the Loan Parties are located as shall be requested by the Administrative Agent,
and such search shall reveal no Liens on any of the assets of the Loan Parties
except for Liens permitted by Section 6.03 or discharged on or prior to the
Closing Date pursuant to documentation satisfactory to the Administrative Agent.
(d) Fees. The Lenders and the Administrative Agent shall have
received all fees required to be paid, and all expenses for which invoices have
been presented (including the reasonable fees and expenses of legal counsel), on
or before the Closing Date.
(e) Closing Certificate. The Administrative Agent shall have
received a certificate of each Loan Party, dated the Closing Date, substantially
in the form of Exhibit F, with appropriate insertions and attachments.
(f) Legal Opinions. The Administrative Agent shall have received
the following executed legal opinions:
(i) the legal opinion of Cravath, Swaine & Xxxxx, counsel to the
Borrower, substantially in the form of Exhibit G-1; and
(ii) the legal opinion of counsel to the Borrower, substantially
in the form of Exhibit G-2.
Each such legal opinion shall cover such other matters incident
to the Transactions as the Administrative Agent may reasonably require.
(g) Pledged Stock, Stock Powers, Pledged Notes. The Collateral
Agent shall have received, to the extent required by the Guarantee and
Collateral Agreement, (i) the certificates representing the shares of Capital
Stock pledged pursuant to the Guarantee and Collateral Agreement, together with
an undated stock power for each such certificate executed in blank by a duly
authorized officer of the pledgor thereof and (ii) each promissory note (if any)
pledged to the Collateral Agent pursuant to the Guarantee and Collateral
Agreement endorsed (without recourse) in blank (or accompanied by an executed
transfer form in blank) by the pledgor thereof.
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(h) Filing, Registrations and Recordings. Each document
(including any Uniform Commercial Code financing statement) required by the
Guarantee and Collateral Agreement or under law or reasonably requested by the
Administrative Agent to be filed, registered or recorded in order to create in
favor of the Collateral Agent, for the benefit of the Secured Parties, a
perfected Lien on the Collateral described therein, prior and superior in right
to any other Person (other than with respect to Liens expressly permitted by
Section 6.03), shall be in proper form for filing, registration or recordation.
(i) Insurance. The Collateral Agent shall have received
insurance certificates satisfying the requirements of Section 5.2 of the
Guarantee and Collateral Agreement.
(j) Other Credit Agreements. The Lucent Five-Year Credit
Agreement shall concurrently become effective and commitments shall have been
received by the Borrower for the full amount of the "Total Commitment" under the
Lucent Assumable Credit Agreement.
ARTICLE V
Affirmative Covenants
The Borrower covenants and agrees with each Lender and the
Administrative Agent that so long as this Agreement shall remain in effect or
the principal of or interest on any Loan, any Fees or any other expenses or
amounts payable hereunder shall be unpaid, unless the Required Lenders shall
otherwise consent in writing:
SECTION 5.01. Existence. The Borrower and each of its Material
Domestic Subsidiaries will do or cause to be done all things necessary to
preserve, renew and keep in full force and effect its legal existence, except as
otherwise expressly permitted under Section 6.04 or, in the case of
Subsidiaries, to the extent necessary to facilitate intercompany reorganizations
that do not materially adversely affect the interests of the Lenders.
SECTION 5.02. Financial Statements, Reports, etc. The Borrower
will furnish to the Administrative Agent and each Lender: (a) within 105 days
after the end of each fiscal year, its consolidated balance sheets and the
related statements of income and cash flows, showing its consolidated financial
condition as of the close of such fiscal year and the consolidated results of
its operations during such year, all audited by PricewaterhouseCoopers LLC or
other independent auditors of recognized national standing and accompanied by an
opinion of such auditors to the effect that such consolidated financial
statements fairly present its financial condition and results of operations on a
consolidated basis in accordance with GAAP consistently applied, except as noted
therein;
(b) within 60 days after the end of each of the first three
fiscal quarters of each fiscal year, its consolidated balance sheets and related
statements of income and cash flows, showing its consolidated financial
condition as of the close of such fiscal quarter and the consolidated results of
its operations during such fiscal quarter and the then elapsed portion of such
fiscal year, all certified by one of its Financial Officers as fairly presenting
its financial condition and results of operations on a consolidated basis in
accordance with GAAP consistently applied, subject to normal recurring accruals,
except as noted therein;
(c) concurrently with any delivery of financial statements under
paragraph (a) or (b) above, a certificate of a Financial Officer certifying that
no Event of Default or Default has occurred (including pursuant to the financial
covenants contained in Section 6.01, as demonstrated in reasonable detail) or,
if such an Event of Default or Default has occurred, specifying the nature and
extent thereof and any corrective action taken or proposed to be taken with
respect thereto;
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(d) promptly after the same become publicly available, copies of
all reports filed by it with the SEC (other than reports on Form 8-K which are
filed solely for the purpose of filing exhibits), or any Governmental Authority
succeeding to any of or all the functions of the SEC, or distributed to its
shareholders, as the case may be;
(e) as soon as available, and in any event no later than 30 days
after the end of each fiscal quarter (i) a list of each item of External Sharing
Debt outstanding on the last Business Day of such quarter including, where
applicable, the outstanding amount thereof, (ii) a list of the Material
Subsidiaries in existence on the last Business Day of such quarter and (iii) in
the case of each fiscal quarter ending on or after June 30, 2001, updated
versions of Schedules 4 and 5 to the Guarantee and Collateral Agreement;
(f) on or about the first anniversary of the Closing Date, an
updated version of Schedule 6 to the Guarantee and Collateral Agreement; and
(g) promptly following any request therefor, such other
information regarding the operations, business affairs and financial condition
of the Borrower or any Subsidiary, or compliance with the terms of this
Agreement, as the Administrative Agent or any Lender (through the Administrative
Agent) may reasonably request.
Reports and financial statements required to be delivered pursuant to paragraphs
(a), (b) and (d) of this Section 5.02 shall be deemed to have been delivered on
the date on which the Borrower posts such reports, or reports containing such
financial statements, on the Borrower's website on the Internet at
xxx.xxxxxx.xxx or when such reports, or reports containing such financial
statements, are posted on the SEC's website at xxx.xxx.xxx; provided that the
Borrower shall deliver paper copies of the reports and financial statements
referred to in paragraphs (a), (b) and (d) of this Section 5.02 to the
Administrative Agent or any Lender who requests the Borrower to deliver such
paper copies until written notice to cease delivering paper copies is given by
the Administrative Agent or such Lender.
SECTION 5.03. Maintaining Records. The Borrower will record,
summarize and report all financial information in accordance with GAAP.
SECTION 5.04. Notices of Material Events. The Borrower will
furnish to the Administrative Agent and each Lender prompt written notice, of
the following:
(a) the occurrence of any Default;
(b) any change in any Borrower Debt Rating;
(c) the filing or commencement of any action, suit or proceeding
by or before any arbitrator or Governmental Authority against or affecting the
Borrower or any Affiliate thereof that has a reasonable possibility of being
adversely determined and, if adversely determined, could reasonably be expected
to result in a Material Adverse Effect;
(d) the occurrence of any ERISA Event that, alone or together
with any other ERISA Events that have occurred, could reasonably be expected to
result in liability of the Borrower and its Subsidiaries in an aggregate amount
exceeding $100,000,000; and
(e) any other development that results in, or could reasonably
be expected to result in, a Material Adverse Effect.
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Each notice delivered under this Section (other than clause (b)
above) shall be accompanied by a statement of a Financial Officer or other
executive officer of the Borrower setting forth the details of the event or
development requiring such notice and any action taken or proposed to be taken
with respect thereto.
SECTION 5.05. Existence; Conduct of Business. The Borrower will,
and will cause each of its Subsidiaries to, do or cause to be done all things
necessary to preserve, renew and keep in full force and effect its legal
existence and the rights, licenses, permits, privileges and franchises material
to the conduct of its business; provided that the foregoing shall not prohibit
any merger, consolidation, liquidation or dissolution permitted under Section
6.04 or, in the case of Subsidiaries, undertaken in connection with Investments
structured as mergers or consolidations or to facilitate intercompany
reorganizations that do not materially adversely affect the interests of the
Lenders.
SECTION 5.06. Payment of Obligations. The Borrower will, and
will cause each of its Subsidiaries to, pay its obligations, including Tax
liabilities, that, if not paid, could result in a Material Adverse Effect before
the same shall become delinquent or in default, except where (a) the validity or
amount thereof is being contested in good faith by appropriate proceedings, (b)
the Borrower or such Subsidiary has set aside on its books adequate reserves
with respect thereto in accordance with GAAP and (c) the failure to make payment
pending such contest could not reasonably be expected to result in a Material
Adverse Effect.
SECTION 5.07. Maintenance of Properties; Insurance. The Borrower
will, and will cause each of its Material Subsidiaries to, (a) keep and maintain
all property material to the conduct of the business of the Borrower and its
Subsidiaries in good working order and condition, ordinary wear and tear
excepted, and (b) maintain, with financially sound and reputable insurance
companies, insurance in such amounts and against such risks as are customarily
maintained by companies engaged in the same or similar businesses operating in
the same or similar locations.
SECTION 5.08. Inspection Rights. The Borrower will, and will
cause each of its Subsidiaries to, permit any representatives designated by the
Administrative Agent or any Lender, upon reasonable prior notice, to visit and
inspect its properties, to examine and make extracts from its books and records,
and to discuss its affairs, finances and condition with its officers and (after
reasonable prior notice to the Borrower and subject to the Borrower's right to
participate in such discussions) independent accountants, all at such reasonable
times and as often as reasonably requested.
SECTION 5.09. Compliance. The Borrower will, and will cause each
of its Subsidiaries to, comply with all Requirements of Law (including
Environmental Laws) and Contractual Obligations applicable to it or its
property, except where the failure to do so, individually or in the aggregate,
could not reasonably be expected to result in a Material Adverse Effect.
SECTION 5.10. Use of Proceeds. The Borrower will use the
proceeds of the Loans only for the purposes set forth in Section 3.15.
SECTION 5.11. Additional Subsidiary Guarantors and Collateral.
(a) With respect to any property acquired after the Closing Date by the Borrower
or any Subsidiary Guarantor (other than (x) any real property or Capital Stock
or (y) any property subject to a Lien expressly permitted by Section 6.03) as to
which the Collateral Agent for the benefit of the Secured Parties, does not have
a perfected Lien, the Borrower or such Subsidiary Guarantor, as applicable, will
promptly (i) execute and deliver such amendments to the Guarantee and Collateral
Agreement or such other documents as the Administrative Agent deems necessary or
advisable to grant to the Collateral Agent for the benefit of the Secured
Parties, a security interest in such property and (ii) to the extent required by
the Guarantee and
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Collateral Agreement, take all actions necessary or advisable to grant to the
Collateral Agent, for the benefit of the Secured Parties, a security interest in
such property of the type contemplated by the Guarantee and Collateral
Agreement, including the filing of Uniform Commercial Code financing statements
in such jurisdictions as may be required by the Guarantee and Collateral
Agreement or by law or as may be requested by the Administrative Agent.
(b) With respect to any fee interest in any real property
meeting the criteria specified in Schedule 1.01B acquired after the Closing Date
by the Borrower or any Subsidiary Guarantor (other than any such real property
subject to a Lien expressly permitted by Section 6.03), promptly (i) execute and
deliver a Mortgage, in favor of the Collateral Agent, for the benefit of the
Secured Parties, covering such real property and (ii) if requested by the
Administrative Agent, deliver to the Administrative Agent legal opinions
relating to such Mortgage, which opinions shall be in form and substance, and
from counsel, reasonably satisfactory to the Administrative Agent. In the event
that Agere and its Subsidiaries become Subsidiary Guarantors pursuant to
paragraph (c) below, Agere or the relevant other Subsidiary shall, with respect
to all real property of the type described above, promptly take the actions
described above.
(c) With respect to any Domestic Subsidiary that becomes a
Material Subsidiary after the Closing Date, promptly (i) execute and deliver
such amendments to the Guarantee and Collateral Agreement as the Administrative
Agent deems necessary or advisable to grant to the Collateral Agent, for the
benefit of the Secured Parties, a perfected first priority security interest in
the Capital Stock of such new Subsidiary that is owned by any Loan Party, (ii)
deliver to the Collateral Agent the certificates representing such Capital
Stock, together with undated stock powers, in blank, executed and delivered by a
duly authorized officer of the relevant Loan Party, (iii) in the case of any
Wholly Owned Subsidiary, cause such new Subsidiary (A) to become a party to the
Guarantee and Collateral Agreement, (B) to the extent required by the Guarantee
and Collateral Agreement, to take such actions necessary or advisable to grant
to the Collateral Agent for the benefit of the Secured Parties a security
interest in the Collateral described in the Guarantee and Collateral Agreement
with respect to such new Subsidiary of the type contemplated by the Guarantee
and Collateral Agreement, including the filing of Uniform Commercial Code
financing statements in such jurisdictions as may be required by the Guarantee
and Collateral Agreement or by law or as may be requested by the Administrative
Agent and (C) to deliver to the Administrative Agent a certificate of such
Subsidiary, substantially in the form of Exhibit F, with appropriate insertions
and attachments, and (iv) if requested by the Administrative Agent, deliver to
the Administrative Agent legal opinions relating to the matters described above,
which opinions shall be in form and substance, and from counsel, reasonably
satisfactory to the Administrative Agent. This paragraph shall not apply to
Agere and its Subsidiaries unless the Agere IPO does not occur on or before
April 30, 2001. If the Agere IPO does not occur by such date, Agere and its
Subsidiaries falling within the relevant categories shall promptly take the
actions described above (except that in no event shall Agere be required to
grant a security interest in any proceeds of the Agere IPO or Permitted
Investments made therewith).
(d) With respect to any direct Subsidiary of any Loan Party that
becomes a Material Foreign Subsidiary after the Closing Date, promptly (i)
execute and deliver to the Administrative Agent such amendments to the Guarantee
and Collateral Agreement as the Administrative Agent deems necessary or
advisable to grant to the Collateral Agent, for the benefit of the Secured
Parties, a perfected security interest in the Capital Stock of such new
Subsidiary that is owned by any Loan Party having the priority contemplated by
the Guarantee and Collateral Agreement (provided that in no event shall more
than 65% of the total outstanding voting Capital Stock of any such new
Subsidiary be required to be so pledged), (ii) deliver to the Collateral Agent
the certificates representing such Capital Stock, together with undated stock
powers, in blank, executed and delivered by a duly authorized officer of the
relevant Loan Party, and take such other action as may be necessary or, in the
opinion of the Administrative Agent, desirable to perfect the Collateral Agent's
security interest therein, and (iii) if requested by the
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Administrative Agent, deliver to the Administrative Agent legal opinions
relating to the matters described above, which opinions shall be in form and
substance, and from counsel, reasonably satisfactory to the Administrative
Agent.
SECTION 5.12. Post-Closing Collateral Matters. Within 60 days
after the Closing Date, the Borrower shall cause to be provided to the
Collateral Agent (a) a Mortgage with respect to each Mortgaged Property,
executed and delivered by a duly authorized officer of each party thereto and
(b) if requested by the Administrative Agent, deliver to the Administrative
Agent legal opinions relating to such Mortgages, which opinions shall be in form
and substance, and from counsel, reasonably satisfactory to the Administrative
Agent.
ARTICLE VI
Negative Covenants
The Borrower covenants and agrees with each Lender and the
Administrative Agent that so long as this Agreement shall remain in effect or
the principal of or interest on any Loan, any Fees or any other expenses or
amounts payable hereunder shall be unpaid, unless the Required Lenders shall
otherwise consent in writing:
SECTION 6.01. Financial Covenants. (a) The Borrower shall not
permit Consolidated Net Worth as of the last day of any fiscal quarter of the
Borrower to be less than $23,000,000,000.
(b) The Borrower shall not permit Consolidated Operating EBITDA
for any period set forth below to be less than the amount set forth below
opposite such period:
Period Minimum Consolidated EBITDA
------ ---------------------------
January 1, 2001 - March 31, 2001 -$1,525,000,000
January 1, 2001 -June 30, 2001 -$2,350,000,000
January 1, 2001 - September 30, 2001 -$2,350,000,000
July 1, 2001 - December 31, 2001 $ 335,000,000
July 1, 2001 - March 31, 2002 $ 775,000,000
July 1, 2001 - June 30, 2002 $1,400,000,000
October 1, 2001 - September 30, 2002 $2,200,000,000
January 1, 2002 - December 31, 2002 $2,600,000,000
(c) The Borrower shall not permit the Current Asset Ratio to be
less than 1.75 to 1.0 as of the last day of (i) the last fiscal quarter of the
Borrower preceding the Agere Stock Release for which the relevant financial
information is available on the date of the Agere Stock Release and (ii) any
subsequent fiscal quarter of the Borrower ending on or prior to the date of the
Agere Distribution.
SECTION 6.02. Indebtedness. The Borrower will not, and will not
permit any Subsidiary (other than any Excluded Subsidiary) to, create, incur,
assume or permit to exist any Indebtedness, except:
(a) Indebtedness created hereunder or under the Lucent Five-Year
Credit Agreement, the Lucent Assumable Credit Agreement or the Agere Assumable
Credit Agreement and extensions, renewals and replacements of any such
Indebtedness that do not increase the outstanding principal amount thereof;
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(b) Indebtedness existing on the Closing Date and set forth in
Schedule 6.02 and extensions, renewals and replacements of any such Indebtedness
that are consummated within one year of the final maturity thereof (whether
before or after such final maturity) and that do not increase the outstanding
principal amount thereof;
(c) Indebtedness created under the Guarantee and Collateral
Agreement;
(d) (i) Indebtedness of the Borrower to any Subsidiary and of
any Subsidiary to the Borrower or any other Subsidiary and (ii) Guarantees by
the Borrower of Indebtedness of any Subsidiary and by any Subsidiary of
Indebtedness of the Borrower (other than under the Indenture) or any other
Subsidiary, provided that, in each case, the related Investment is permitted by
Section 6.05;
(e) Indebtedness of the Borrower or any Subsidiary incurred to
finance the acquisition, construction or improvement of any fixed or capital
assets, including Capital Lease Obligations, Indebtedness in respect of
synthetic leases and any Indebtedness assumed in connection with the acquisition
of any such assets or secured by a Lien on any such assets prior to the
acquisition thereof, and extensions, renewals and replacements of any such
Indebtedness that do not increase the outstanding principal amount thereof;
provided that (i) such Indebtedness is incurred prior to or within 90 days after
such acquisition or the completion of such construction or improvement and (ii)
the aggregate principal amount of Indebtedness permitted by this clause (e)
shall not exceed $750,000,000 at any time outstanding;
(f) Indebtedness of any Person that becomes a Subsidiary after
the Closing Date; provided that such Indebtedness exists at the time such Person
becomes a Subsidiary and is not created in contemplation of or in connection
with such Person becoming a Subsidiary and extensions, renewals and replacements
of any such Indebtedness that are incurred by such Subsidiary, that are
consummated within one year of the final maturity thereof (whether before or
after such final maturity) and that do not increase the outstanding principal
amount thereof;
(g) Attributable Debt and Indebtedness pursuant to CMO
Transactions permitted by Section 6.10;
(h) subject to compliance with Section 6.12, External Sharing
Debt;
(i) Indebtedness of the Borrower or any Subsidiary as an account
party in respect of trade letters of credit;
(j) Indebtedness the issuance of which constitutes a Capital
Markets Event;
(k) commercial paper and other Short-Term Indebtedness of the
Borrower or any Subsidiary;
(l) Indebtedness constituting Guarantees permitted by Section
6.05(d) or (i);
(m) Indebtedness incurred pursuant to working capital facilities
entered into by Foreign Subsidiaries of the Borrower;
(n) Obligations under take or pay or minimum purchase contracts
to the extent constituting Guarantees of Indebtedness of the counterparty
thereto; and
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(o) other Indebtedness incurred after the Closing Date in an
aggregate principal amount not exceeding $400,000,000 at any time outstanding.
SECTION 6.03. Liens. The Borrower will not, and will not permit
any Domestic Subsidiary (other than any Excluded Subsidiary) to, create, incur,
assume or permit to exist any Lien on any property or asset now owned or
hereafter acquired by it, or assign or sell any income or revenues (including
accounts receivable) or rights in respect of any thereof, except:
(a) Permitted Encumbrances;
(b) any judgment Lien in respect of a judgment for the payment
of money, provided that at no time shall the aggregate liability in respect of
all outstanding judgment Liens that have been outstanding for more than 60
consecutive days exceed $100,000,000;
(c) any Lien on any property or asset of the Borrower or any
Subsidiary existing on the Closing Date and (in the case of any such Liens on
any property owned by a Loan Party as of the Closing Date) set forth in Schedule
6.03; provided that (i) such Lien shall not apply to any other property or asset
of the Borrower or any Subsidiary and (ii) such Lien shall secure only those
obligations which it secures on the Closing Date and extensions, renewals and
replacements thereof that do not increase the outstanding principal amount
thereof;
(d) any Lien existing on any property or asset prior to the
acquisition thereof by the Borrower or any Subsidiary, or existing on any
property or asset of any Person that becomes a Subsidiary after the Closing Date
prior to the time such Person becomes a Subsidiary; provided that (i) such Lien
is not created in contemplation of or in connection with such acquisition or
such Person becoming a Subsidiary, as the case may be, (ii) such Lien shall not
apply to any other property or assets of the Borrower or any Subsidiary and
(iii) such Lien shall secure only those obligations which it secures on the date
of such acquisition or the date such Person becomes a Subsidiary, as the case
may be and extensions, renewals and replacements thereof that do not increase
the outstanding principal amount thereof,
(e) Liens on fixed or capital assets acquired, constructed or
improved by the Borrower or any Subsidiary; provided that (i) such security
interests secure Indebtedness permitted by clause (e) of Section 6.02, (ii) such
security interests and the Indebtedness secured thereby are incurred prior to or
within 90 days after such acquisition or the completion of such construction or
improvement and (iii) such security interests shall not apply to any other
property or assets of the Borrower or any Subsidiary;
(f) Liens incurred pursuant to Sale and Leaseback Transactions
or CMO Transactions permitted by Section 6.10;
(g) Liens incurred pursuant to securitizations constituting
Capital Markets Events and related assignments and sales of any income or
revenues, including accounts receivable and rights in respect thereof;
(h) Liens created by the Security Documents; and
(i) Liens securing Indebtedness or other obligations in an
aggregate principal amount not exceeding $200,000,000 at any time outstanding.
SECTION 6.04. Fundamental Changes. The Borrower will not merge
into or consolidate with any other Person, or permit any other Person (other
than a Subsidiary of the Borrower, so long as (a) the Borrower is the survivor
thereof and (b) no Default or Event of Default shall be in existence after
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giving effect thereto) to merge into or consolidate with it, or sell, transfer,
lease or otherwise dispose of (in one transaction or in a series of
transactions) all or substantially all of the assets of the Borrower and its
Subsidiaries, or liquidate or dissolve.
SECTION 6.05. Investments, Loans, Advances, Guarantees and
Acquisitions. The Borrower will not, and will not permit any of its Subsidiaries
to, purchase, hold or acquire (including pursuant to any merger with any Person
that was not a wholly owned Subsidiary prior to such merger or pursuant to
consideration received in connection with a Disposition of assets) any capital
stock, evidences of indebtedness or other securities (including any option,
warrant or other right to acquire any of the foregoing) of, make or permit to
exist any loans or advances to, Guarantee any obligations of, or make or permit
to exist any investment or any other interest in, any other Person, or purchase
or otherwise acquire (in one transaction or a series of transactions) any assets
of any other Person constituting a business unit (collectively, "Investments"),
except:
(a) Permitted Investments;
(b) Investments in existence on the Closing Date;
(c) intercompany Investments made in the ordinary course of
business by the Borrower or any Subsidiary in the Borrower or any Subsidiary;
(d) vendor financings and related securitizations and Guarantees
in respect thereof entered into in the ordinary course of business (i) pursuant
to commitments in effect on September 30, 2000, (ii) pursuant to the vendor
financing arrangements for an amount of up to Euro 2,200,000,000 to MARABU
covering the cost of the equipment and services for the buildout of a "3G"
wireless network in the Federal Republic of Germany, as well as certain other
costs or (iii) pursuant to commitments issued on or after October 1, 2000,
provided that, (x) in the case of this clause (iii), the aggregate amount of
commitments issued by the Borrower and its Subsidiaries pursuant to which such
Investments are made does not exceed (1) $3,000,000,000 in each of the fiscal
year ending September 30, 2001 and the fiscal year ending September 30, 2002 or
(2) $1,500,000,000 for the period from October 1, 2002 through February 26, 2003
and (y) to the extent that any of the commitments described in this clause (iii)
are terminated without being utilized or sold without recourse to the Borrower
or any Subsidiary, the amount of commitments permitted to be issued pursuant to
this clause (iii) shall be increased by a like amount (it being understood that
the amount of any commitment for the purposes of this clause (iii) shall be
calculated by reference to the aggregate maximum potential recourse liabilities
of the Borrower and its Subsidiaries thereunder);
(e) warrants received from, and minority equity investments in,
customers of 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;
(f) Investments received in connection with the bankruptcy or
reorganization of, or settlement of delinquent accounts and disputes with,
customers and suppliers of the Borrower and its Subsidiaries
(g) loans and advances to officers and employees of the Borrower
and its Subsidiaries in the ordinary course of business;
(h) Investments funded through the issuance of common stock of
the Borrower; and
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(i) in addition to Investments otherwise expressly permitted by
this Section, Investments by the Borrower or any of its Subsidiaries in an
aggregate amount (valued at cost) not to exceed $500,000,000 during the term of
this Agreement, provided, that for the purpose of determining at any time the
utilization of such amount by Investments constituting Guarantees, the amount of
utilization shall equal the sum of the amount (determined in accordance with the
definition of "Guarantee") of then outstanding Guarantees plus the amount
actually funded after the Closing Date in connection with Guarantees made
pursuant to this paragraph.
SECTION 6.06. Capital Expenditures. Make or commit to make any
Capital Expenditure, except Capital Expenditures of the Borrower and its
Subsidiaries in the ordinary course of business not exceeding $1,800,000,000 in
any fiscal year of the Borrower (commencing with the fiscal year ending
September 30, 2001); provided that (a) any such amount, if not so expended in
the fiscal year for which it is permitted, may be carried over for expenditure
in the next succeeding fiscal year and (b) Capital Expenditures made pursuant to
this Section during any fiscal year shall be deemed made, first in respect of
amounts permitted for such fiscal year as provided above and, second in respect
of amounts carried over from the prior fiscal year pursuant to clause (a) above.
SECTION 6.07. Hedging Agreements. The Borrower will not, and
will not permit any of its Subsidiaries to, enter into any Hedging Agreement,
other than Hedging Agreements entered into in the ordinary course of business to
hedge or mitigate risks to which the Borrower or any Subsidiary is exposed in
the conduct of its business or the management of its liabilities.
SECTION 6.08. Restricted Payments. The Borrower will not, and
will not permit any of its Subsidiaries to, declare or make, or agree to pay or
make, directly or indirectly, any Restricted Payment, except (a) each of the
Borrower and its Subsidiaries may declare and pay dividends with respect to its
Capital Stock payable solely in additional shares of the same class of Capital
Stock, (b) Subsidiaries may declare and pay dividends ratably with respect to
their Capital Stock and may make other Restricted Payments to the Borrower or
any other Subsidiary, (c) the Borrower may make Restricted Payments pursuant to
and in accordance with stock option or rights plans or other benefit plans for
management, employees, directors or consultants of the Borrower and its
Subsidiaries, (d) the Agere Distribution may be consummated after the Agere
Stock Release has been made in accordance with Section 9.13(b) so long as (i)
after giving effect thereto, no Event of Default shall be in existence and (ii)
the Borrower shall have received at least $2,500,000,000 of Qualified
Non-Operating Proceeds and (e) the Borrower may declare and pay dividends on the
common stock of the Borrower made in the ordinary course of business at a rate
per share not to exceed the rate most recently utilized prior to the Closing
Date so long as, at the time of declaration of such dividend, no Event of
Default shall be in existence.
SECTION 6.09. Transactions with Affiliates. The Borrower will
not, and will not permit any of its Subsidiaries to, sell, lease or otherwise
transfer any property or assets to, or purchase, lease or otherwise acquire any
property or assets from, or otherwise engage in any other transactions with, any
of its Affiliates, except (a) in the ordinary course of business at prices and
on terms and conditions not less favorable to the Borrower or such Subsidiary
than could be obtained on an arm's-length basis from unrelated third parties,
(b) transactions between or among the Borrower and its Subsidiaries not
involving any other Affiliate, (c) any Restricted Payment permitted by Section
6.08, (d) any transactions contemplated by the agreements attached as exhibits
to the Form 10-K, dated December 27, 2000, of the Borrower or extensions,
renewals or replacements of such agreements on terms not materially less
favorable to the Borrower and its Subsidiaries and (e) any transactions
contemplated by the agreements attached as exhibits to the Form S-1, dated
December 7, 2000, as amended, of Agere or extensions, renewals or replacements
of such agreements on terms not materially less favorable to the Borrower and
its Subsidiaries.
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SECTION 6.10. Limitations on Sale and Leaseback Transactions and
CMO Transactions. The Borrower will not, and will not permit any Subsidiary to,
enter into any Sale and Leaseback Transaction or CMO Transaction unless the sum
of (a) the Attributable Debt or Indebtedness to be outstanding pursuant to such
Sale and Leaseback Transaction or CMO Transaction and (b) all Attributable Debt
or Indebtedness then outstanding pursuant to all other Sale and Leaseback
Transactions or CMO Transactions entered into by the Borrower or any Subsidiary
after the Closing Date would not exceed $2,500,000,000.
SECTION 6.11. Synthetic Purchase Agreements. The Borrower will
not, and will not permit any Subsidiary to, enter into or be party to, or make
any payment under, any Synthetic Purchase Agreement.
SECTION 6.12. External Sharing Debt. (a) If the USD Equivalent
of the aggregate amount of External Sharing Basket Debt as of the last Business
Day of any fiscal quarter of the Borrower exceeds 105% of the External Sharing
Basket, then the Borrower or the relevant Subsidiary shall, within ten days
after such information becomes available (whether pursuant to Section 5.02(f) or
otherwise), prepay External Sharing Basket Debt (or, in the case of any credit
facility, reduce the amount thereof) in an amount sufficient to reduce the
aggregate amount thereof to no greater than 100% of the External Sharing Basket.
(b) If the USD Equivalent of the aggregate amount of External
Non-Specified Sharing Debt as of the last Business Day of any fiscal quarter
exceeds 105% of the External Non-Specified Basket, then the Borrower or the
relevant Subsidiary shall, within ten days after such information becomes
available (whether pursuant to Section 5.02(f) or otherwise), prepay External
Non-Specified Sharing Debt (or, in the case of any credit facility, reduce the
amount thereof) in an amount sufficient to reduce the aggregate amount thereof
to no greater than 100% of the External Non-Specified Basket.
ARTICLE VII
Events of Default
In case of the happening of any of the following events (each an
"Event of Default"):
(a) the Borrower shall fail to pay any principal of any Loan
when and as the same shall become due and payable, whether at the due date
thereof or at a date fixed for prepayment thereof or otherwise;
(b) the Borrower shall fail to pay any interest on any Loan or
any fee or any other amount (other than an amount referred to in clause (a) of
this Article) payable under this Agreement, when and as the same shall become
due and payable, and such failure shall continue unremedied for a period of
three Business Days;
(c) any representation or warranty made or deemed made by or on
behalf of any Loan Party in or in connection with any Loan Document or any
amendment or modification hereof or waiver hereunder, or in any report,
certificate, financial statement or other document furnished pursuant to or in
connection with any Loan Document or any amendment or modification hereof or
waiver hereunder, shall prove to have been incorrect in any material respect
when made or deemed made;
(d) the Borrower shall fail to observe or perform any covenant,
condition or agreement contained in Section 5.05 (with respect to the Borrower's
existence), Section 5.10 or Article VI;
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(e) the Borrower shall fail to observe or perform any covenant,
condition or agreement contained in this Agreement (other than those specified
in clause (a), (b) or (d) of this Article), and such failure shall continue
unremedied for a period of 30 days after notice thereof from the Administrative
Agent to the Borrower (which notice will be given at the request of the Required
Lenders);
(f) the Borrower or any Subsidiary shall fail to make any
payment (whether of principal or interest and regardless of amount) in respect
of any Material Indebtedness, when and as the same shall become due and payable;
(g) any event or condition occurs that results in any Material
Indebtedness becoming due prior to its scheduled maturity or that enables or
permits (with or without the giving of notice, the lapse of time or both) the
holder or holders of any Material Indebtedness or any trustee or agent on its or
their behalf to cause any Material Indebtedness to become due, or to require the
prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled
maturity; provided that this clause (g) shall not apply to secured Indebtedness
that becomes due as a result of the voluntary sale or transfer of the property
or assets securing such Indebtedness;
(h) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed seeking (i) liquidation, reorganization or
other relief in respect of the Borrower or any Subsidiary or its debts, or of a
substantial part of its assets, under any Federal, state or foreign bankruptcy,
insolvency, receivership or similar law now or hereafter in effect or (ii) the
appointment of a receiver, trustee, custodian, sequestrator, conservator or
similar official for the Borrower or any Subsidiary or for a substantial part of
its assets, and, in any such case, such proceeding or petition shall continue
undismissed for 60 days or an order or decree approving or ordering any of the
foregoing shall be entered;
(i) the Borrower or any Subsidiary shall (i) voluntarily
commence any proceeding or file any petition seeking liquidation, reorganization
or other relief under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect, (ii) consent to the
institution of, or fail to contest in a timely and appropriate manner, any
proceeding or petition described in clause (h) of this Article, (iii) apply for
or consent to the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Borrower or any Subsidiary or for a
substantial part of its assets, (iv) file an answer admitting the material
allegations of a petition filed against it in any such proceeding, (v) make a
general assignment for the benefit of creditors or (vi) take any action for the
purpose of effecting any of the foregoing;
(j) the Borrower or any Subsidiary shall become unable, or admit
in writing its inability, or fail generally to pay its debts as they become due;
(k) one or more judgments for the payment of money in an
aggregate amount in excess of $100,000,000 shall be rendered against the
Borrower, any Subsidiary or any combination thereof and the same shall remain
undischarged for a period of 30 consecutive days during which execution shall
not be effectively stayed, or any action shall be legally taken by a judgment
creditor to attach or levy upon any assets of the Borrower or any Subsidiary to
enforce any such judgment;
(l) an ERISA Event shall have occurred that, in the opinion of
the Required Lenders, when taken together with all other ERISA Events that have
occurred, could reasonably be expected to result in a Material Adverse Effect;
or
(m) (i) the Collateral Sharing Agreement or any of the Security
Documents shall cease, for any reason, to be in full force and effect, or any
Loan Party or any Affiliate of any Loan Party shall so assert, or any Lien
created by any of the Security Documents shall cease to be enforceable and of
the
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same effect and priority purported to be created thereby (except (A) as
permitted by the applicable Security Document or Section 9.13 or (B) by reason
of the failure of the Collateral Agent to maintain possession of any instruments
delivered to it or to file or record any documents delivered to it for filing or
recording) or (ii) the guarantee contained in Section 2 of the Guarantee and
Collateral Agreement shall cease, for any reason, to be in full force and effect
or any Loan Party or any Affiliate of any Loan Party shall so assert; or
(n) a Change in Control shall occur;
then, and in every such event (other than an event described in paragraph (h) or
(i) above with respect to the Borrower), and at any time thereafter during the
continuance of such event, the Administrative Agent, at the request of the
Required Lenders, shall, by notice to the Borrower, take either or both of the
following actions, at the same or different times: (i) terminate forthwith the
Commitments and (ii) declare the Loans then outstanding to be forthwith due and
payable in whole or in part, whereupon the principal of the Loans so declared to
be due and payable, together with accrued interest thereon and any unpaid
accrued Fees and all other liabilities of the Borrower accrued hereunder, shall
become forthwith due and payable, without presentment, demand, protest or any
other notice of any kind, all of which are hereby expressly waived by the
Borrower, anything contained herein to the contrary notwithstanding; and, in any
event with respect to the Borrower described in paragraph (h) or (i) above, the
Commitments shall automatically terminate and the principal of the Loans then
outstanding, together with accrued interest thereon and any unpaid accrued Fees
and all other liabilities of the Borrower accrued hereunder, shall automatically
become due and payable, without presentment, demand, protest or any other notice
of any kind, all of which are hereby expressly waived by the Borrower, anything
contained herein to the contrary notwithstanding.
ARTICLE VIII
The Administrative Agent
In order to expedite the transactions contemplated by this
Agreement and the other Loan Documents, The Chase Manhattan Bank is hereby
appointed to act as Administrative Agent on behalf of the Lenders. Each of the
Lenders hereby irrevocably authorizes the Administrative Agent to take such
actions on behalf of such Lender and to exercise such powers as are specifically
delegated to the Administrative Agent by the terms and provisions hereof or of
any other Loan Document, together with such actions and powers as are reasonably
incidental thereto. The Administrative Agent is hereby expressly authorized by
the Lenders, without hereby limiting any implied authority, (a) to receive on
behalf of the Lenders all payments of principal of and interest on the Loans and
all other amounts due to the Lenders hereunder, and promptly to distribute to
each Lender its proper share of each payment so received; (b) to give notice on
behalf of each of the Lenders to the Borrower of any Event of Default specified
in this Agreement of which the Administrative Agent has actual knowledge
acquired in connection with its agency hereunder; and (c) to distribute to each
Lender copies of all notices, financial statements and other materials delivered
by the Borrower pursuant to this Agreement as received by the Administrative
Agent.
Neither the Administrative Agent nor any of its directors,
officers, employees or agents shall be liable as such for any action taken or
omitted by any of them except for its or his own gross negligence or willful
misconduct, or be responsible for any statement, warranty or representation
herein or the contents of any document delivered in connection herewith, or be
required to ascertain or to make any inquiry concerning the performance or
observance by the Borrower of any of the terms, conditions, covenants or
agreements contained in this Agreement or any other Loan Document. The
Administrative Agent shall not be responsible to the Lenders for the due
execution, genuineness, validity, enforceability
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or effectiveness of this Agreement, any other Loan Document or other instruments
or agreements. The Administrative Agent may deem and treat the Lender which
makes any Loan as the holder of the indebtedness resulting therefrom for all
purposes hereof until it shall have received notice from such Lender, given as
provided herein, of the transfer thereof. The Administrative Agent shall in all
cases be fully protected in acting, or refraining from acting, in accordance
with written instructions signed by the Required Lenders and, except as
otherwise specifically provided herein, such instructions and any action or
inaction pursuant thereto shall be binding on all the Lenders. The
Administrative Agent shall, in the absence of knowledge to the contrary, be
entitled to rely on any instrument or document believed by it in good faith to
be genuine and correct and to have been signed or sent by the proper person or
persons. Neither the Administrative Agent nor any of its directors, officers,
employees or agents shall have any responsibility to the Borrower on account of
the failure of or delay in performance or breach by any Lender of any of its
obligations hereunder or to any Lender on account of the failure of or delay in
performance or breach by any other Lender or the Borrower of any of their
respective obligations hereunder or in connection herewith. The Administrative
Agent may execute any and all duties hereunder by or through agents or employees
and shall be entitled to rely upon the advice of legal counsel selected by it
with respect to all matters arising hereunder or under any other Loan Document
and shall not be liable for any action taken or suffered in good faith by it in
accordance with the advice of such counsel.
The Lenders hereby acknowledge that the Administrative Agent
shall be under no duty to take any discretionary action permitted to be taken by
it pursuant to the provisions of this Agreement or any other Loan Document
unless it shall be requested in writing to do so by the Required Lenders.
Subject to the appointment and acceptance of a successor
Administrative Agent as provided below, the Administrative Agent may resign at
any time by notifying the Lenders and the Borrower. Upon any such resignation,
the Required Lenders shall have the right to appoint a successor Administrative
Agent acceptable to the Borrower. If no successor shall have been so appointed
by the Required Lenders and shall have accepted such appointment within 30 days
after the retiring Administrative Agent gives notice of its resignation, then
the retiring Administrative Agent may, on behalf of the Lenders, appoint a
successor Administrative Agent which shall be a bank with an office in New York,
New York, having a combined capital and surplus of at least $500,000,000 or an
Affiliate of any such bank. Upon the acceptance of any appointment as
Administrative Agent hereunder by a successor bank, such successor shall succeed
to and become vested with all the rights, powers, privileges and duties of the
retiring Administrative Agent and the retiring Administrative Agent shall be
discharged from its duties and obligations hereunder. After the Administrative
Agent's resignation hereunder, the provisions of this Article and Section 8.05
shall continue in effect for its benefit in respect of any actions taken or
omitted to be taken by it while it was acting as Administrative Agent.
With respect to the Loans made by it hereunder, the
Administrative Agent in its individual capacity and not as Agent shall have the
same rights and powers as any other Lender and may exercise the same as though
it were not the Administrative Agent, and the Administrative Agent and its
Affiliates may accept deposits from, lend money to and generally engage in any
kind of business with the Borrower or any Subsidiary or other Affiliate thereof
as if it were not the Administrative Agent.
Each Lender agrees (i) to reimburse the Administrative Agent, on
demand, in the amount of its pro rata share (based on its Commitment hereunder,
or, after the Revolving Maturity Date, its Loans hereunder) of any expenses
incurred for the benefit of the Lenders by the Administrative Agent, including
counsel fees and compensation of agents and employees paid for services rendered
on behalf of the Lenders, which shall not have been reimbursed by the Borrower,
and (ii) to indemnify and hold harmless the Administrative Agent and any of its
directors, officers, employees or agents, on demand, in the amount of such pro
rata share, from and against any and all liabilities, taxes, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever
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which may be imposed on, incurred by or asserted against it in its capacity as
the Administrative Agent or any of them in any way relating to or arising out of
this Agreement, any other Loan Document or any action taken or omitted by it or
any of them under this Agreement or any other Loan Document to the extent the
same shall not have been reimbursed by the Borrower; provided that no Lender
shall be liable to the Administrative Agent for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from the gross negligence or willful
misconduct of the Administrative Agent or any of its directors, officers,
employees or agents.
Each Lender acknowledges that it has, independently and without
reliance upon the Administrative Agent or any other Lender and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement
or any related agreement or any document furnished hereunder or thereunder.
The Syndication Agent shall have no duties or responsibilities
hereunder in its capacity as such.
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices. Notices and other communications provided
for herein shall be in writing and shall be delivered by hand or overnight
courier service, mailed or sent by telecopy, as follows:
(a) if to the Borrower, to it at Lucent Technologies Inc., Room
7E-524A, 000 Xxxxxxxx Xxxxxx, Xxxxxx Xxxx, Xxx Xxxxxx 00000, Attention of
Director, Global Banking and Cash Management (Facsimile No. 908-582-0290);
(b) if to the Administrative Agent, to it at One Chase Xxxxxxxxx
Xxxxx, Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention of Xxxxxxx Xxxxxx
(Facsimile No. 212-552-5700); and
(c) if to a Lender, to it at its address (or telecopy number)
set forth in an Administrative Questionnaire delivered to the Administrative
Agent.
All notices and other communications given to any party hereto
in accordance with the provisions of this Agreement shall be deemed to have been
given on the date of receipt if delivered by hand or overnight courier service
or sent by telecopy, or on the date five Business Days after dispatch by
certified or registered mail if mailed, in each case delivered, sent or mailed
(properly addressed) to such party as provided in this Section 9.01 or in
accordance with the latest unrevoked direction from such party given in
accordance with this Section 9.01.
SECTION 9.02. Survival of Agreement. All covenants, agreements,
representations and warranties made by any Loan Party in any Loan Document and
in the certificates or other instruments prepared or delivered in connection
with or pursuant to this Agreement shall be considered to have been relied upon
by the Lenders and shall survive the making by the Lenders of the Loans
regardless of any investigation made by the Lenders or on their behalf, and
shall continue in full force and effect as long as the principal of or any
accrued interest on any Loan or any Fee or any other amount payable under this
Agreement is outstanding and unpaid and so long as the Commitments have not been
terminated.
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SECTION 9.03. Binding Effect. This Agreement shall become
effective when the conditions precedent set forth in Section 4.02 shall have
been satisfied, and thereafter shall be binding upon and inure to the benefit of
the Borrower, the Administrative Agent and each Lender and their respective
successors and assigns.
SECTION 9.04. Successors and Assigns. (a) Whenever in this
Agreement any of the parties hereto is referred to, such reference shall be
deemed to include the successors and assigns of such party; and all covenants,
promises and agreements by or on behalf of the Borrower, the Administrative
Agent or the Lenders that are contained in this Agreement shall bind and inure
to the benefit of their respective successors and assigns.
(b) Each Lender may assign to one or more assignees all or a
portion of its interests, rights and obligations under this Agreement (including
all or a portion of its Commitment and the Loans at the time owing to it);
provided, however, that (i) except in the case of assignments to a Lender or an
affiliate of a Lender, the Administrative Agent and the Borrower (except after
the occurrence and during the continuance of an Event of Default) must give
their prior written consent to such assignment (such consent not to be
unreasonably withheld or delayed), (ii) the amount of the Commitment (or, after
the Revolving Maturity Date, the Loans) of the assigning Lender subject to each
such assignment (determined as of the date the Assignment and Acceptance with
respect to such assignment is delivered to the Administrative Agent) shall not
be less than $5,000,000 (or the remaining balance of its Commitment or Loans, as
applicable) and the amount of the Commitment (or, after the Revolving Maturity
Date, the Loans) of such Lender remaining after such assignment shall not be
less than $5,000,000 or shall be zero, in each case unless otherwise agreed by
the Borrower and the Administrative Agent, (iii) the parties to each such
assignment shall execute and deliver to the Administrative Agent an Assignment
and Acceptance, and a processing and recordation fee of $3,500 and (iv) the
assignee, if it shall not be a Lender, shall deliver to the Administrative Agent
an Administrative Questionnaire. Upon acceptance and recording pursuant to
paragraph (e) of this Section 9.04, from and after the effective date specified
in each Assignment and Acceptance, which effective date shall be at least five
Business Days after the execution thereof, (A) the assignee thereunder shall be
a party hereto and, to the extent of the interest assigned by such Assignment
and Acceptance, have the rights and obligations of a Lender under this
Agreement, (B) the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Acceptance, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of an assigning Lender's rights
and obligations under this Agreement such Lender shall cease to be a party
hereto (but shall continue to be entitled to the benefits of Sections 2.12,
2.14, 2.18 and 9.05, as well as to any Fees accrued for its account hereunder
and not yet paid)) and (C) Schedule 1.01A shall be deemed amended to give effect
to such assignment.
(c) By executing and delivering an Assignment and Acceptance,
the assigning Lender thereunder and the assignee thereunder shall be deemed to
confirm to and agree with each other and the other parties hereto as follows:
(i) such assigning Lender warrants that it is the legal and beneficial owner of
the interest being assigned thereby free and clear of any adverse claim; (ii)
except as set forth in (i) above, such assigning Lender makes no representation
or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement or any other instrument or document furnished pursuant
hereto or the financial condition of the Borrower or the performance or
observance by the Borrower of any of its obligations under this Agreement or any
other instrument or document furnished pursuant hereto; (iii) such assignee
represents and warrants that it is legally authorized to enter into such
Assignment and Acceptance; (iv) such assignee confirms that it has received a
copy of this Agreement, together with copies of the most recent financial
statements delivered pursuant to Section 5.02 and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into such Assignment and Acceptance; (v) such assignee will
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independently and without reliance upon the Administrative Agent, such assigning
Lender or any other Lender and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement; (vi) such assignee appoints
and authorizes the Administrative Agent to take such action as agent on its
behalf and to exercise such powers under this Agreement as are delegated to the
Administrative Agent by the terms hereof, together with such powers as are
reasonably incidental thereto; and (vii) such assignee agrees that it will
perform in accordance with their terms all the obligations which by the terms of
this Agreement are required to be performed by it as a Lender.
(d) The Administrative Agent shall maintain at one of its
offices in the City of New York a copy of each Assignment and Acceptance
delivered to it and a register for the recordation of the names and addresses of
the Lenders, and the Commitment of, and the principal amount of the Loans owing
to, each Lender pursuant to the terms hereof from time to time (the "Register").
The entries in the Register shall be conclusive in the absence of manifest error
and the Borrower, the Administrative Agent and the Lenders may treat each person
whose name is recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Agreement.
(e) Upon its receipt of a duly completed Assignment and
Acceptance executed by an assigning Lender and an assignee together with an
Administrative Questionnaire completed in respect of the assignee (unless the
assignee shall already be a Lender hereunder), the processing and recordation
fee referred to in paragraph (b) above and, if required, the written consent of
the Borrower to such assignment, the Administrative Agent shall (i) accept such
Assignment and Acceptance and (ii) record the information contained therein in
the Register.
(f) Each Lender may, without the consent of the Borrower or the
Administrative Agent, sell participations to one or more banks or other entities
in all or a portion of its rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans owing to it);
provided, however, that (i) such Lender's obligations under this Agreement shall
remain unchanged, (ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations, (iii) each participating
bank or other entity shall be entitled to the benefit of the cost protection
provisions contained in Sections 2.12, 2.14 and 2.18 to the same extent as if it
was the selling Lender, except that all claims and petitions for payment and
payments made pursuant to such Sections shall be made through such selling
Lender, and (iv) the Borrower, the Administrative Agent and the other Lenders
shall continue to deal solely and directly with such selling Lender in
connection with such Lender's rights and obligations under this Agreement, and
such Lender shall retain the sole right (and participating banks or other
entities shall have no right) to enforce the obligations of the Borrower
relating to the Loans and to approve any amendment, modification or waiver of
any provision of this Agreement or any other Loan Document (other than
amendments, modifications or waivers decreasing any fees payable hereunder or
the amount of principal of or the rate at which interest is payable on the
Loans, or extending any scheduled principal payment date or date fixed for the
payment of interest on the Loans).
(g) Any Lender or participant may, in connection with any
assignment or participation or proposed assignment or participation pursuant to
this Section 9.04, disclose to the assignee or participant or proposed assignee
or participant any information relating to the Borrower furnished to such Lender
by or on behalf of the Borrower; provided that, prior to any such disclosure,
each such assignee or participant or proposed assignee or participant shall
execute an agreement whereby such assignee or participant shall agree (subject
to customary exceptions) to preserve the confidentiality of any such
confidential information relating to the Borrower.
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(h) The Borrower shall not assign or delegate any of its
respective rights and duties hereunder without the prior written consent of all
Lenders and any attempted assignment without such consent shall be void.
(i) For avoidance of doubt, the parties to this Agreement
acknowledge that the provisions of this Section 9.04 concerning assignments
relate only to absolute assignments and that such provisions do not prohibit
assignments creating security interests, including any pledge or assignment by a
Lender to any Federal Reserve Bank in accordance with applicable law; provided
that no such assignment shall release any Lender from its obligations hereunder
or substitute any such Bank for such Lender as a party hereto. In order to
facilitate such an assignment, the Borrower shall, at the request of the
assigning Lender, duly execute and deliver to the assigning Lender a promissory
note or notes evidencing the Loans made to the Borrower by the assigning Lender
hereunder.
SECTION 9.05. Expenses; Indemnity. (a) The Borrower agrees to
pay all reasonable out-of-pocket expenses incurred by the Administrative Agent
in connection with this Agreement or any other Loan Document or in connection
with any amendments, modifications or waivers of the provisions hereof or
thereof, or incurred by the Administrative Agent or any Lender in connection
with the enforcement or protection of their rights in connection with this
Agreement or any other Loan Document or in connection with the Loans made
hereunder, including the fees and disbursements of counsel for the
Administrative Agent or, in the case of enforcement or protection, Lenders.
(b) The Borrower agrees to indemnify the Administrative Agent,
the Lenders, Affiliates, and their respective directors, officers, employees and
agents (each such person being called an "Indemnitee") against, and to hold each
Indemnitee harmless from, any and all losses, claims, damages, liabilities and
related expenses, including reasonable counsel fees and expenses, incurred by or
asserted against any Indemnitee arising out of (i) the execution or delivery of
this Agreement, any other Loan Document or any agreement or instrument
contemplated thereby, the performance by the parties thereto of their respective
obligations thereunder or the consummation of the transactions contemplated
thereby, (ii) the use of the proceeds of the Loans or (iii) any claim,
litigation, investigation or proceeding relating to any of the foregoing,
whether or not any Indemnitee is a party thereto; provided that such indemnity
shall not, as to any Indemnitee, be available to the extent that such losses,
claims, damages, liabilities or related expenses resulted from the gross
negligence or willful misconduct of such Indemnitee.
(c) The provisions of this Section 9.05 shall remain operative
and in full force and effect regardless of the expiration of the term of this
Agreement, the consummation of the transactions contemplated hereby, the
repayment of any of the Loans, the invalidity or unenforceability of any term or
provision of this Agreement or any investigation made by or on behalf of the
Administrative Agent or any Lender. All amounts due under this Section 9.05
shall be payable on written demand therefor.
SECTION 9.06. Applicable Law. THIS AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 9.07. Waivers; Amendment. (a) No failure or delay of the
Administrative Agent or any Lender in exercising any power or right hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such right or power, or any abandonment or discontinuance of steps to
enforce such a right or power, preclude any other or further exercise thereof or
the exercise of any other right or power. The rights and remedies of the
Administrative Agent and the Lenders hereunder are cumulative and are not
exclusive of any rights or remedies which they would otherwise have. No waiver
of any provision of this Agreement or consent to any departure by the Borrower
therefrom shall in any event be effective unless the same shall be permitted by
paragraph (b) below, and then such waiver or consent shall be effective only in
the specific instance and for the purpose for which given. No notice or
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demand on the Borrower in any case shall entitle the Borrower to any other or
further notice or demand in similar or other circumstances.
(b) Neither this Agreement, any other Loan Document nor any
provision hereof or thereof may be waived, amended or modified except pursuant
to an agreement or agreements in writing entered into by the Borrower and the
Required Lenders; provided, however, that no such agreement shall (i) decrease
the principal amount of, except as provided in Section 2.06, or extend the
maturity of or any scheduled principal payment date or date for the payment of
any interest on any Loan, or waive or excuse any such payment or any part
thereof, or decrease the rate of interest on any Loan, without the prior written
consent of each Lender directly affected thereby, (ii) increase the Commitment
or decrease the Facility Fee of any Lender without the prior written consent of
such Lender, or (iii) amend or modify the provisions of Section 2.15 or Section
9.04(h), the provisions of this Section or the definition of "Required Lenders",
or release all or substantially all of the Collateral or of the Guarantees of
the Subsidiary Guarantors pursuant to the Guarantee and Collateral Agreement
(except as provided therein or in Section 9.13), without the prior written
consent of each Lender; provided, further, however, that no such agreement shall
amend, modify or otherwise affect the rights or duties of the Administrative
Agent hereunder without the prior written consent of the Administrative Agent.
Each Lender shall be bound by any waiver, amendment or modification authorized
by this Section and any consent by any Lender pursuant to this Section shall
bind any assignee of its rights and interests hereunder.
SECTION 9.08. Entire Agreement. This Agreement constitutes the
entire contract among the parties relative to the subject matter hereof. Any
previous agreement among the parties with respect to the subject matter hereof
is superseded by this Agreement. Nothing in this Agreement expressed or implied,
is intended to confer upon any party other than the parties hereto any rights,
remedies, obligations or liabilities under or by reason of this Agreement.
SECTION 9.09. Severability. In the event any one or more of the
provisions contained in this Agreement should be held invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein shall not in any way be affected or
impaired thereby. The parties shall endeavor in good-faith negotiations to
replace the invalid, illegal or unenforceable provisions with valid provisions
the economic effect of which comes as close as possible to that of the invalid,
illegal or unenforceable provisions.
SECTION 9.10. Right of Setoff. If an Event of Default shall have
occurred and be continuing under clause (a) or (b) of Article VII, or if the
Loans shall become due and payable pursuant to Article VII, each Lender and each
of its Affiliates is hereby authorized at any time and from time to time, to the
fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held and
other obligations at any time owing by such Lender or Affiliate to or for the
credit or the account of any Loan Party against any of and all the obligations
of any Loan Party now or hereafter existing under this Agreement or any other
Loan Document held by such Lender, irrespective of whether or not such Lender
shall have made any demand under this Agreement or any other Loan Document and
although such obligations may be unmatured. The rights of each Lender under this
Section are in addition to other rights and remedies (including other rights of
setoff) which such Lender may have.
SECTION 9.11. Counterparts. This Agreement may be executed in
two or more counterparts, each of which shall constitute an original but all of
which when taken together shall constitute but one contract, and shall become
effective as provided in Section 9.03.
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SECTION 9.12. Headings. Article and Section headings and the
Table of Contents used herein are for convenience of reference only, are not
part of this Agreement and are not to affect the construction of, or to be taken
into consideration in interpreting, this Agreement.
SECTION 9.13. Release of Guarantees and Liens. (a)
Notwithstanding anything to the contrary contained herein or in any other Loan
Document, each of the Administrative Agent and the Collateral Agent is hereby
irrevocably authorized by each Lender (without requirement of notice to or
consent of any Lender) to take any action requested by the Borrower (including
the giving of directions to the Collateral Agent) having the effect of releasing
any Collateral or Guarantee obligations (i) to the extent necessary to permit
consummation of any transaction, including any CMO Transaction, not prohibited
by any Loan Document or that has been consented to in accordance with Section
9.07 or (ii) under the circumstances described in paragraph (b), (c) or (d)
below.
(b) The Capital Stock of Agere pledged pursuant to the Guarantee
and Collateral Agreement shall at the Borrower's request be released (the "Agere
Stock Release") at any time on or after the date on which Agere has assumed at
least $2,500,000,000 in aggregate principal amount of Indebtedness of the
Borrower (including, in any event, all Indebtedness under the Lucent Assumable
Credit Agreement); provided that, at the time of such release, no Event of
Default has occurred and is continuing (including pursuant to Section 6.01) (as
certified by the Borrower to the Administrative Agent).
(c) On the first date after the Closing Date on which the
Borrower has (i) Borrower Debt Ratings of BBB or better from S&P and Baa2 or
better from Xxxxx'x, in each case on stable watch or the equivalent, and (ii)
Consolidated Operating EBITDA of at least $1,800,000,000, for the most recent
period of four consecutive fiscal quarters (or shorter period, if applicable)
commencing on or after October 1, 2000 for which the relevant financial
information is available (as certified by the Borrower to the Administrative
Agent), the Collateral shall automatically be released from the Liens created by
the Security Documents (it being understood that the Guarantees created by the
Guarantee and Collateral Agreement shall nevertheless remain in effect).
(d) If Agere and its Subsidiaries have been required to enter
into any Security Documents pursuant to Section 5.11, then on the date of the
Agere IPO, the Collateral provided by Agere and its Subsidiaries shall
automatically be released from the Liens created by the Security Documents and
all of their respective obligations under the Security Documents (including the
Guarantees provided by them pursuant to the Guarantee and Collateral Agreement)
shall automatically be terminated.
SECTION 9.14. Confidentiality. Each of the Administrative Agent
and the Lenders agrees to maintain the confidentiality of the Information (as
defined below), except that Information may be disclosed (a) to its and its
Affiliates' directors, officers, employees and agents, including accountants,
legal counsel and other advisors (it being understood that the Persons to whom
such disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential), (b) to the
extent requested by any regulatory authority, (c) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process, (d)
to any other party to this Agreement, (e) in connection with the exercise of any
remedies hereunder or any suit, action or proceeding relating to this Agreement
or the enforcement of rights hereunder, (f) subject to an agreement containing
provisions substantially the same as those of this Section, to any assignee of
or participant in, or any prospective assignee of or participant in, any of its
rights or obligations under this Agreement, (g) with the consent of the Borrower
or (h) to the extent such Information (i) becomes publicly available other than
as a result of a breach of this Section or (ii) becomes available to the
Administrative Agent or any Lender on a nonconfidential basis from a source
other than the Borrower. For the purposes of this Section, "Information" means
all information received from the Borrower relating to the Borrower or its
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business, other than any such information that is available to the
Administrative Agent or any Lender on a nonconfidential basis prior to
disclosure by the Borrower; provided that, in the case of information received
from the Borrower after the Closing Date, such information is clearly identified
at the time of delivery as confidential. Any Person required to maintain the
confidentiality of Information as provided in this Section shall be considered
to have complied with its obligation to do so if such Person has exercised the
same degree of care to maintain the confidentiality of such Information as such
Person would accord to its own confidential information.
SECTION 9.15. Submission To Jurisdiction; Waivers. The Borrower
hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to which it
is a party, or for recognition and enforcement of any judgment in respect
thereof, to the non-exclusive general jurisdiction of the courts of the State of
New York, the courts of the United States of America for the Southern District
of New York, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought
in such courts and waives any objection that it may now or hereafter have to the
venue of any such action or proceeding in any such court or that such action or
proceeding was brought in an inconvenient court and agrees not to plead or claim
the same;
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or certified
mail (or any substantially similar form of mail), postage prepaid, to it at its
address referred to in Section 9.01 or at such other address of which the
Administrative Agent shall have been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the right
to xxx in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any
right it may have to claim or recover in any legal action or proceeding referred
to in this Section any special, exemplary, punitive or consequential damages.
SECTION 9.16. WAIVER OF JURY TRIAL .EACH PARTY HERETO HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY
COUNTERCLAIM THEREIN.
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IN WITNESS WHEREOF, the Borrower, the Administrative Agent and
the Lenders have caused this Agreement to be duly executed by their respective
authorized officers as of the day and year first above written.
LUCENT TECHNOLOGIES INC.
By:
-----------------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK, individually and
as Administrative Agent
By:
-----------------------------------------
Name:
Title:
XXXXXXX XXXXX XXXXXX INC., as Syndication
Agent
By:
-----------------------------------------
Name:
Title:
