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EXHIBIT 99.2
EXECUTION COPY
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$2,500,000,000
364-DAY
REVOLVING CREDIT AND TERM LOAN FACILITY AGREEMENT
Dated as of February 22, 2001
among
LUCENT TECHNOLOGIES INC.,
AGERE SYSTEMS INC.
(solely to acknowledge its assumption of certain of the Borrower's rights and
obligations)
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
PAGE
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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SECTION 1.04. Schedule 2.10..................................................17
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ARTICLE II The Credits......................................................................17
SECTION 2.01. Commitments....................................................17
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SECTION 2.02. Loans..........................................................18
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SECTION 2.03. Borrowing Procedure............................................19
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SECTION 2.04. Conversion and Continuation of Loans...........................19
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SECTION 2.05. Fees...........................................................20
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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
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Commitments and Exposure.......................................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.............................................25
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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.....30
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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.............................................31
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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
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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................................37
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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..........................................................39
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SECTION 6.04. Fundamental Changes............................................40
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SECTION 6.05. Investments, Loans, Advances, Guarantees and Acquisitions......40
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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
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Transactions...................................................42
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SECTION 6.11. Synthetic Purchase Agreements..................................42
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SECTION 6.12. External Sharing Debt..........................................43
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ARTICLE VII Events of Default...............................................................43
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.................................................47
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SECTION 9.04. Successors and Assigns.........................................47
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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...................................................52
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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.....................................52
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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 Excluded Properties
Schedule 1.01D Excluded Subsidiaries
Schedule 2.10 Allocation Matters
Schedule 3.14 Material Subsidiaries
Schedule 3.17(b) Mortgage Filing Offices
Schedule 6.02 Existing Indebtedness
Schedule 6.03 Existing Liens
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364-DAY REVOLVING CREDIT AND TERM LOAN FACILITY AGREEMENT, dated as
of February 22, 2001, among LUCENT TECHNOLOGIES INC., a Delaware corporation
("Lucent" or the "Borrower"), AGERE SYSTEMS INC., a Delaware corporation
("Agere"; provided that Agere is a party hereto solely to acknowledge its
assumption of certain of the Borrower's rights and obligations as set forth in
Section 9.04(a)), 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 (a) on a revolving credit basis on and after the
Closing Date and at any time and from time to time prior to the Maturity Date
(as herein defined) a principal amount not in excess of $2,000,000,000 (subject
to adjustment as described herein) at any time outstanding and (b) on a term
basis on a single date on or after the Closing Date and on or prior to the date
of the Agere IPO (as herein defined) a principal amount of up to $500,000,000
(subject to adjustment as described herein). 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, Agere (solely to acknowledge its
assumption of certain of the Borrower's rights and obligations as set forth in
Section 9.04(a)), 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 have the meaning assigned to such term in the
preamble.
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"Agere Assumable Credit Agreement" shall mean the $2,500,000,000
Credit Agreement dated as of the Closing Date among Agere, the lenders party
thereto and The Chase Manhattan Bank, as administrative agent.
"Agere IPO" shall mean the consummation of an initial public
offering of the common stock of Agere.
"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 Baa3/BBB- Ba1/BB+ Ba2/BB or less
better
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Facility Fee Rate 0.50% 0.50% 0.50% 0.50%
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Eurodollar 1.75% 2.00% 2.50% 3.00%
Revolving Loans
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Eurodollar Term 2.25% 2.50% 3.00% 3.50%
Loans
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ABR Revolving 0.75% 1.00% 1.50% 2.00%
Loans
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ABR Term Loans 1.25% 1.50% 2.00% 2.50%
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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. 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. Notwithstanding anything to
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the contrary in this definition, (i) until the later of (x) the date that is six
months after the Closing Date and (y) the Exposure Reduction Date, Level II
shall be deemed to be in effect at any time when Level I would otherwise be in
effect and (ii) on each date that is 90 days or a whole multiple thereof after
the Closing Date, the Applicable Percentage (other than the Facility Fee rate)
shall increase by a further 0.25% above the rate that would otherwise be in
effect, provided, that, effective on the Exposure Reduction Date, the increases
pursuant to this clause (ii) shall cease to apply.
"Arrangers" shall mean XX Xxxxxx, a division of Chase Securities
Inc., and Xxxxxxx Xxxxx Xxxxxx Inc.
"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.
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"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 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) issuances of Capital Stock
of the Borrower pursuant to any compensation plan for directors, employees or
consultants of the Borrower and its Subsidiaries, (ii) 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), (iii) commercial paper and other Short-Term
Indebtedness (other than Short-Term Indebtedness under a syndicated line of
credit or other credit facility), (iv) Indebtedness under the Lucent Credit
Agreements, (v) working capital facilities entered into by Foreign Subsidiaries
of the Borrower, (vi) 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, (vii) 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 (except to
the extent such Net Cash Proceeds are in fact so dividended), (viii) any CMO
Transaction to the extent involving property described on Schedule 1.01C and
(ix) 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.
"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.
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"Code" shall mean the Internal Revenue Code of 1986, as the same may
be amended from time to time.
"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.
"Commitments" shall mean the collective reference to the Revolving
Commitments and the Term Commitments.
"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
after-tax effects of the first $4,000,000,000 of pre-tax business restructuring
charges taken after the Closing Date, (b) 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%), (c) sales of assets outside of
the ordinary course of business or (d) 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 $4,000,000,000
of pre-tax business restructuring charges taken after the Closing Date, (g)
additional charges taken after the Closing Date in connection with vendor
financings and Vendor Financing Dispositions, (h) any extraordinary, unusual or
non-recurring expenses or losses (including, whether or not otherwise includable
as a separate item in the statement of such Consolidated Net Income for such
period, losses on sales of assets outside of the ordinary course of business),
and (i) any other non-cash charges, and minus, to the extent included in the
statement of such Consolidated Net Income for such period, the sum of (a)
interest income, (b) any extraordinary, unusual or non-recurring income or gains
(including, whether or not otherwise includable as a separate item in the
statement of such
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Consolidated Net Income for such period, gains on the sales of assets outside of
the ordinary course of business) and (c) any other non-cash income, all as
determined on a consolidated basis.
"Contractual Obligation" shall mean, as to any Person, any provision
of any security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Control" shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
Person, whether through the ownership of voting shares, by contract or
otherwise. "Controlling" and "Controlled" have meanings correlative thereto.
"Default" shall mean any event or condition which upon notice, lapse
of time or both would constitute an Event of Default.
"Disposition" shall mean, with respect to any property, any sale,
lease, sale and leaseback, assignment, conveyance, transfer or other disposition
thereof. The terms "Dispose", and "Disposed of" shall have correlative meanings.
"dollars" or "$" 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, 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
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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.
"Exposure Reduction Date" shall mean the first date after the
Closing Date on which the Total Exposure is $1,000,000,000 or less.
"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 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.
"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
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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 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
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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 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
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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 Maturity Date, 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 mean any Revolving Loan or Term Loan.
"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 Commitments" shall mean, on any date of determination, the
Commitments hereunder and the "Commitments" under and as defined in each of the
Lucent 364-Day Credit Agreement and the Lucent Five-Year Credit Agreement.
"Lucent Credit Agreements" shall mean the collective reference to
this Agreement, the Lucent 364-Day 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 February 22, 2001 among the
Borrower, the lenders party thereto and The Chase Manhattan Bank, as
administrative agent.
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"Lucent Lender" shall mean any Person that is a Lender or is a
"Lender" under and as defined in either the Lucent 364-Day Credit Agreement or
the Lucent Five-Year Credit Agreement
"Lucent 364-Day Credit Agreement" shall mean the $2,000,000,000
Credit Agreement dated as of February 22, 2001 among the Borrower, the lenders
party thereto and The Chase Manhattan Bank, as administrative agent.
"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 applicable, be made excluding
intercompany receivables and revenues that would be eliminated upon
consolidation in accordance with GAAP.
"Maturity Date" shall mean February 21, 2002.
"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.
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"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. 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 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.
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"Other Facility Obligations" shall mean "Obligations" under and as
defined in either the Lucent Five-Year Credit Agreement or the Lucent 364-Day
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 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
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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.
"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 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 Commitment" shall mean, as to any Lender, the obligation
of such Lender, if any, to make Revolving Loans in an aggregate principal amount
not to exceed the amount set forth under the heading "Revolving 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.
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"Revolving Lender" shall mean any Lender holding a Revolving
Commitment or Revolving Loans.
"Revolving Loan" shall have the meaning given such term in Section
2.01.
"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.
"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
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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 Borrowing Date" shall have the meaning given such term in
Section 2.01.
"Term Commitment" shall mean, as to any Lender, the obligation of
such Lender, if any, to make a Term Loan in a principal amount not to exceed the
amount set forth under the heading "Term 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.
"Term Lender" shall mean any Lender holding a Term Commitment or a
Term Loan.
"Term Loan" shall have the meaning given such term in Section 2.01.
"Total Exposure" shall mean, on any date, the sum of (a) the
aggregate amount of the Commitments then in effect and (b) the aggregate
principal amount of the Term Loans then outstanding.
"Total Revolving Commitment" shall mean, at any time, the aggregate
amount of Revolving Commitments of 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.
SECTION 1.04. Schedule 2.10. The requirements of Schedule 2.10 shall
apply notwithstanding anything to the contrary in this Agreement.
ARTICLE II
The Credits
SECTION 2.01. Commitments. Subject to the terms and conditions and
relying upon the representations and warranties herein set forth, (a) each
Revolving Lender agrees, severally and not jointly, to make revolving credit
loans ("Revolving Loans") to the Borrower, at any time and from time to time on
and after the Closing Date and until the earlier of the Maturity Date and the
termination of the Revolving Commitment of such Lender, in an aggregate
principal amount at any time outstanding not to exceed such Lender's Revolving
Commitment and (b) each Term Lender agrees, severally and not jointly, to make a
term loan (a "Term Loan") to the Borrower, on a single date (the "Term Borrowing
Date") on or after the Closing Date and on or prior to the date of the Agere
IPO, in a principal amount not to exceed such Lender's Term Commitment. Such
Commitments may be terminated or reduced from time to time pursuant to Section
2.10. The Arrangers shall have the right in their sole discretion at any time
prior to the assumption by Agere described in Section 9.04(a), subject only to
the consent of each Revolving Lender whose Revolving Commitment or Revolving
Loans are being redesignated as described in this sentence, to redesignate
Revolving Commitments or Revolving Loans as Term Commitments or Term Loans,
provided, that the aggregate amount of Revolving Commitments and Revolving Loans
so
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redesignated shall not exceed $1,000,000,000. Any such reallocation of Revolving
Loans to Term Loans shall result in a reduction in the Revolving Commitment
under which such Revolving Loans were made by a like amount. Any Term Loan
resulting from such redesignation shall be deemed to be a new Borrowing at the
time of redesignation, but in the case of a Eurodollar Borrowing shall continue
to have the same Interest Period then in effect.
Within the foregoing limits, the Borrower may borrow, pay or prepay
and reborrow Revolving Loans hereunder, on and after the Closing Date and until
the Maturity Date, subject to the terms, conditions and limitations set forth
herein.
Prepayments of the Term Loans may not be reborrowed.
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 Revolving Commitments or Term Commitments, as the case may be;
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
relevant Commitments).
(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 Revolving Lenders or the Term
Lenders, as the case may be, 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.
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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, (iii) if
such Borrowing is to be a Eurodollar Borrowing, the Interest Period with respect
thereto, which shall not end after the Maturity Date, and (iv) whether such
Borrowing is of Revolving Loans or Term Loans. 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 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
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 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
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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 (the "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 ending with the Maturity
Date or any date on which the Commitment of such Lender shall be terminated).
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 Maturity Date and the termination of the
Commitment of such Lender as provided herein.
(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 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
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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.
(c) 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 Revolving Loans (in the case of principal and
interest in respect of Revolving Loans) or ABR Term Loans (otherwise).
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)
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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 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 and Exposure. (a) The Revolving Commitments shall be
automatically terminated on the Maturity Date. The Term Commitments shall be
automatically terminated on the Term Borrowing Date after the Borrowing of Term
Loans occurring on such date. The Term Commitments shall be automatically
terminated on the date of the Agere IPO if they have not been utilized on or
prior to such date.
(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
Revolving Commitments and the Term Commitments; provided, however, that each
partial reduction of such Commitments shall be in an integral multiple of
$10,000,000 and in a minimum principal amount of $20,000,000. Optional
reductions pursuant to this Section 2.10(b) while the Term Commitments remain
outstanding shall be allocated among the Revolving Commitments and the Term
Commitments in the manner contemplated by Schedule 2.10. Optional reductions of
Revolving Commitments pursuant to this Section 2.10(b) while the Term Loans
remain outstanding shall be accompanied by a prepayment of the Term Loans to the
extent required by Schedule 2.10.
(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 (i) Total Exposure and (ii) the "Total Commitment" under the Lucent 364-Day
Credit Agreement shall automatically be permanently and ratably reduced by an
amount equal to such Net Cash Proceeds (excluding an aggregate amount utilized
between this Agreement and the Lucent 364-Day Credit Agreement of (i) up to
$750,000,000 of Net Cash Proceeds from receivables securitizations and (ii) up
to $750,000,000 of Net Cash Proceeds from Sale and Leaseback Transactions and
CMO Transactions. Notwithstanding the foregoing, so long as no Default or Event
of Default is in existence, if the amount of Net Cash Proceeds required to be
applied between this Agreement and the Lucent 364-Day 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 Net Cash 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 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, 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 this Agreement. Any
such collateral account shall be established with the Administrative Agent
pursuant to a cash collateral agreement reasonably satisfactory to the
Administrative Agent. Each reduction of Total Exposure pursuant to this
paragraph (c) shall be allocated as provided in Schedule 2.10. It is understood
that the concept of "automatic" reductions as applied to Total Exposure
consisting of Term Loans means that Term Loans in the amount so allocated shall
become due and payable on the date such reduction is required.
(d) Subject to Schedule 2.10, each reduction allocated to the
Revolving Commitments or Term Commitments hereunder shall be made ratably among
the Lenders in accordance with their respective Revolving Commitments or Term
Commitments, as the case may be. The Borrower shall pay to the Administrative
Agent for the account of the Lenders, on the date of each termination or
reduction
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of any Commitments, the Facility Fees on the amount of such 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. Each optional prepayment of the Term
Loans pursuant to this Section 2.11(a) shall be accompanied by a reduction of
the Revolving Commitments to the extent required by Schedule 2.10.
(b) On the date of any termination or reduction of the Revolving
Commitments pursuant to this Agreement, the Borrower shall pay or prepay so much
of the Borrowings as shall be necessary in order that the aggregate principal
amount of the Revolving Loans outstanding will not exceed the Total Revolving
Commitment, after giving effect to such termination or reduction.
(c) 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 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
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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.
(c) 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
(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.
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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.
SECTION 2.15. Pro Rata Treatment. Except as required under Sections
2.09, 2.12, 2.13, 2.14, 2.18 and 2.19 or by Schedule 2.10, 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 Revolving
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Commitments or Term Commitments, as the case may be (or, if such Commitments
shall have expired or been terminated, in accordance with the respective
principal amounts of their outstanding Revolving Loans or Term Loans, as the
case may be). 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
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
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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.
(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.
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(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 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.
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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 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.
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(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.
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.
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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 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
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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)
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.
(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.
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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.
(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
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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
and the Lucent 364-Day Credit Facility shall have prior hereto, or shall
concurrently herewith, become effective.
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;
(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;
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(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.
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.
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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 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.
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(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 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
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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
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 or the Lucent 364-Day Credit Agreement and extensions, renewals
and replacements of any such Indebtedness that do not increase the outstanding
principal amount thereof;
(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;
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(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
(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:
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(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 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
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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
(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.
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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 and (d) 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.
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.
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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;
(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
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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 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
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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 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
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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)
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 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
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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.
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. On the date of the Agere IPO,
immediately prior thereto, the Borrower agrees to assign (and shall be deemed to
have assigned without the necessity of any assignment
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agreement), and Agere agrees to assume (and shall be deemed to have assumed
without the necessity of any separate assumption agreement), all of the
Borrower's rights and monetary obligations hereunder (including any monetary
obligations pursuant to provisions that survive the termination of this
Agreement, it being understood that, although such provisions shall survive such
termination, the monetary obligations resulting therefrom shall be obligations
of Agere). Upon such assignment by the Borrower and such assumption by Agere,
this Agreement shall be of no further force or effect (except as provided in the
last parenthetical of the preceding sentence), and the Borrower shall be
released from all of its liabilities hereunder, including in respect of the
Loans.
(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) in the case of assignments of Revolving Commitments,
the amount of the Revolving Commitment 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 Revolving Commitment or
Revolving Loans, as applicable) and the amount of the Revolving Commitment 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) in the case of assignments of Term Commitments or
Term Loans, the amount of the Term Commitment or Term Loan 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 $1,000,000 (or the remaining
balance of its Term Commitment or Term Loan, as applicable) and the amount of
the Term Commitment or Term Loan of such Lender remaining after such assignment
shall not be less than $1,000,000 or shall be zero, in each case unless
otherwise agreed by the Borrower and the Administrative Agent, (iv) any such
assignment of a Revolving Commitment prior to the Agere IPO shall also involve
an assignment of a like percentage of the "Revolving Commitment" of such Lender
under the Agere Assumable Credit Agreement, (v) 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 (vi) 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
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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 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
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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.
(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
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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 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, 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.
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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.
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).
(b) 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).
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
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. The Borrower hereby
irrevocably and unconditionally:
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(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 the
Borrower 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, Agere, 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:
AGERE SYSTEMS INC. (solely to acknowledge its
assumption of certain of the Borrower's rights and
obligations pursuant to the Agere Assumable Credit
Agreement)
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:
