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EXHIBIT 99.4
EXECUTION COPY
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GUARANTEE AND COLLATERAL AGREEMENT
made by
LUCENT TECHNOLOGIES INC.
and certain of its Subsidiaries
in favor of
The Chase Manhattan Bank,
as Collateral Agent
Dated as of February 22, 2001
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TABLE OF CONTENTS
Page
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SECTION 1. DEFINED TERMS...................................................................................2
1.1 Definitions.....................................................................................2
1.2 Other Definitional Provisions..................................................................12
SECTION 2. GUARANTEE......................................................................................13
2.1 Guarantee......................................................................................13
2.2 Right of Contribution..........................................................................13
2.3 No Subrogation.................................................................................13
2.4 Amendments, etc. with respect to the Guaranteed Obligations....................................14
2.5 Guarantee Absolute and Unconditional...........................................................14
2.6 Reinstatement..................................................................................15
2.7 Payments.......................................................................................15
SECTION 3. GRANT OF SECURITY INTEREST.....................................................................15
SECTION 4. REPRESENTATIONS AND WARRANTIES.................................................................16
4.1 Title; No Other Liens..........................................................................16
4.2 Perfected First Priority Liens.................................................................16
4.3 Jurisdiction of Organization; Chief Executive Office...........................................17
4.4 Inventory and Equipment........................................................................17
4.5 Farm Products..................................................................................17
4.6 Investment Property............................................................................17
4.7 Receivables....................................................................................18
4.8 Intellectual Property..........................................................................18
4.9 Principal Properties and Restricted Securities.................................................18
4.10 Secured Indebtedness and Attributable Debt.....................................................18
SECTION 5. COVENANTS......................................................................................18
5.1 Delivery of Instruments, Certificated Securities and Chattel Paper.............................18
5.2 Maintenance of Insurance.......................................................................19
5.3 Payment of Obligations.........................................................................19
5.4 Maintenance of Perfected Security Interest; Further Documentation..............................19
5.5 Changes in Locations, Name, etc................................................................19
5.6 Notices........................................................................................20
5.7 Investment Property............................................................................20
5.8 Intellectual Property..........................................................................21
SECTION 6. REMEDIAL PROVISIONS............................................................................21
6.1 Certain Matters Relating to Receivables........................................................21
6.2 Communications with Obligors; Grantors Remain Liable...........................................21
6.3 Pledged Stock..................................................................................22
6.4 Proceeds to be Turned Over To Collateral Agent.................................................23
6.5 Application of Proceeds........................................................................23
6.6 Code and Other Remedies........................................................................23
6.7 Registration Rights............................................................................24
6.8 Waiver; Deficiency.............................................................................25
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SECTION 7. THE COLLATERAL AGENT...........................................................................25
7.1 Collateral Agent's Appointment as Attorney-in-Fact, etc........................................25
7.2 Duty of Collateral Agent.......................................................................26
7.3 Execution of Financing Statements..............................................................26
7.4 Authority of Collateral Agent..................................................................27
SECTION 8. MISCELLANEOUS..................................................................................27
8.1 Amendments in Writing..........................................................................27
8.2 Notices........................................................................................27
8.3 No Waiver by Course of Conduct; Cumulative Remedies............................................27
8.4 Enforcement Expenses; Indemnification..........................................................27
8.5 Successors and Assigns.........................................................................28
8.6 Set-Off........................................................................................28
8.7 Counterparts...................................................................................28
8.8 Severability...................................................................................28
8.9 Section Headings...............................................................................28
8.10 Integration....................................................................................28
8.11 GOVERNING LAW..................................................................................28
8.12 Submission To Jurisdiction; Waivers............................................................29
8.13 Acknowledgements...............................................................................29
8.14 Additional Grantors; Additional External Sharing Debt..........................................29
8.15 Releases.......................................................................................30
8.16 WAIVER OF JURY TRIAL...........................................................................31
8.17 Collateral Sharing Agreement...................................................................31
8.18 Judgment Currency..............................................................................31
SCHEDULES
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Schedule 1 Notice Addresses
Schedule 2 Investment Property
Schedule 3 Perfection Matters
Schedule 4 Jurisdictions of Organization and Chief Executive Offices
Schedule 5 Inventory and Equipment Locations
Schedule 6 Existing Intellectual Property
Schedule 7 Existing External Sharing Debt
Schedule 8 Principal Properties
Schedule 9 Restricted Securities
Schedule 10 Secured Indebtedness and Attributable Debt
Schedule 11 Permitted Liens on Investment Property
ANNEXES
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Annex 1 Form of Assumption Agreement
Annex 2 Form of External Sharing Debt Supplement
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GUARANTEE AND COLLATERAL AGREEMENT
GUARANTEE AND COLLATERAL AGREEMENT, dated as of February 22,
2001, made by each of the signatories hereto (together with any other entity
that may become a party hereto as provided herein, the "Grantors"), in favor of
The Chase Manhattan Bank, as Collateral Agent (in such capacity, the "Collateral
Agent") for the Secured Parties (as defined below).
W I T N E S S E T H:
WHEREAS, pursuant to the 364-Day Revolving Credit Facility
Agreement, dated as of February 22, 2001 (as amended, supplemented or otherwise
modified from time to time, the "364-Day Lucent Credit Agreement"), among Lucent
Technologies Inc., a Delaware corporation ("Lucent" or the "Borrower"), the
Lenders from time to time parties thereto and The Chase Manhattan Bank, as
administrative agent, such Lenders have severally agreed to make extensions of
credit to the Borrower upon the terms and subject to the conditions set forth
therein;
WHEREAS, pursuant to the 364-Day Revolving Credit and Term Loan
Facility Agreement, dated as of February 22, 2001 (as amended, supplemented or
otherwise modified from time to time, the "Lucent Assumable Credit Agreement"),
among the Borrower (the obligations of which shall be assumed by Agere Systems
Inc., a Delaware corporation ("Agere"), immediately prior to the consummation of
an initial public offering of a portion of the shares thereof), Agere, the
Lenders from time to time parties thereto and The Chase Manhattan Bank, as
administrative agent, such Lenders have severally agreed to make extensions of
credit to the Borrower upon the terms and subject to the conditions set forth
therein;
WHEREAS, pursuant to the Five-Year Amended and Restated
Revolving Credit Facility Agreement, dated as of February 22, 2001 (as amended,
supplemented or otherwise modified from time to time, the "Five-Year Lucent
Credit Agreement" and, together with the 364-Day Lucent Credit Agreement and the
Lucent Assumable Credit Agreement, the "Credit Agreements"), among the Borrower,
the Lenders from time to time parties thereto (such Lenders, together with the
Lenders under the 364-Day Lucent Credit Agreement and the Lenders under the
Lucent Assumable Credit Agreement, the "Lenders") and The Chase Manhattan Bank,
as administrative agent, such Lenders have severally agreed to make extensions
of credit to the Borrower upon the terms and subject to the conditions set forth
therein;
WHEREAS, the Borrower is a member of an affiliated group of
companies that includes Agere and each other Grantor;
WHEREAS, the proceeds of the extensions of credit under the
Credit Agreements will be used in part to enable the Borrower to make valuable
transfers to one or more of the other Grantors in connection with the operation
of their respective businesses;
WHEREAS, the Borrower and the other Grantors are engaged in
related businesses, and each Grantor will derive substantial direct and indirect
benefit from the making of the extensions of credit under the Credit Agreements;
WHEREAS, it is a condition precedent to the obligation of the
Lenders to make their respective extensions of credit to the Borrower under the
Credit Agreements that the Grantors shall have executed and delivered this
Agreement to the Collateral Agent for the benefit of the Secured Parties; and
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WHEREAS, the Borrower desires, to the extent permitted by the
Credit Agreements, to extend the benefits of this Agreement to the holders of
External Sharing Debt (as defined below);
NOW, THEREFORE, in consideration of the premises and to induce
the Collateral Agent and the Lenders to enter into the Credit Agreements and to
induce the Lenders to make their respective extensions of credit to the Borrower
thereunder, each Grantor hereby agrees with the Collateral Agent, for the
benefit of the Secured Parties, as follows:
SECTION 1. DEFINED TERMS
1.1 Definitions(a) The following terms are used herein as defined in
the New York UCC: Accounts, Certificated Security, Chattel Paper, Documents,
Equipment, Farm Products, Instruments and Inventory.
(b) The following terms shall have the following meanings:
"ABR Loan": any Loan bearing interest at a rate determined by
reference to the Alternate Base Rate in accordance with (and as Alternate Base
Rate is defined in) the provisions of the applicable Credit Agreement.
"Administrative Agent": the collective reference to (i) the
"Administrative Agent", as defined in the 364-Day Lucent Credit Agreement, (ii)
the "Administrative Agent", as defined in the Lucent Assumable Credit Agreement
and (iii) the "Administrative Agent", as defined in the Five-Year Lucent Credit
Agreement. Each reference to the Administrative Agent shall, unless the context
otherwise requires, be deemed to be a reference to each such "Administrative
Agent" acting jointly with the other such "Administrative Agents".
"Affiliate": 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 Assumable Credit Agreement": the 364-Day Revolving Credit
and Term Loan Facility Agreement to be entered into among Agere, Lucent, the
Lenders from time to time parties thereto and The Chase Manhattan Bank, as
administrative agent.
"Agreement": this Guarantee and Collateral Agreement, as the
same may be amended, supplemented or otherwise modified from time to time.
"Attributable Debt": as defined in the Indenture.
"Borrowed Debt": that portion of any Grantor's Obligations that
constitutes indebtedness which is created, assumed, incurred or guaranteed in
any manner by such Grantor or for which such Grantor is otherwise responsible or
liable (whether by agreement to purchase indebtedness of, or to supply funds to
invest in, others) and which, if secured by any Restricted Collateral, would
constitute Secured Indebtedness.
"Borrower Debt Rating": any rating by a Rating Agency with
respect to the senior unsecured non-credit enhanced long-term debt of the
Borrower.
"Borrower Liquidated Obligations": the Borrower Obligations
constituting (i) unpaid principal of and interest on the Loans and fees payable
under the Credit Agreements and (ii) other
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Borrower Obligations that are liquidated as to amount (not contingent) and for
which invoices or other written claims for payment have been presented to the
Borrower.
"Borrower Obligations": the unpaid principal of and interest on
the Loans and all other obligations and liabilities of the Borrower (including,
without limitation, interest accruing at the then applicable rate provided in
the applicable Credit Agreements after the maturity of the Loans and interest
accruing at the then applicable rate provided in the applicable Credit
Agreements 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) to the Collateral Agent, any Administrative Agent or 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, any Credit Agreement, this Agreement, the other Loan Documents
or any other document (other than any document evidencing or governing External
Sharing Debt) made, delivered or given in connection with any of the foregoing,
in each case whether on account of principal, interest, reimbursement
obligations, fees, indemnities, costs, expenses or otherwise (including, without
limitation, all fees, charges and disbursements of counsel to the Collateral
Agent, the Administrative Agents or the Lenders that are required to be paid by
the Borrower pursuant to the terms of any of the foregoing agreements).
"Business Day": 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.
"Capital Lease Obligations": with respect to any Person, 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 Stock": 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.
"CMO Transaction": 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.
"Collateral": as defined in Section 3.
"Collateral Account": any collateral account established by the
Collateral Agent as provided in Section 6.1 or 6.4.
"Collateral Sharing Agreement": the Collateral Sharing Agreement
to be executed and delivered by the Collateral Agent and the Borrower,
substantially in the form of Exhibit C to each of the Credit Agreements.
"Commitments": the collective reference to (i) the
"Commitments", as defined in the 364-Day Lucent Credit Agreement, (ii) the
"Commitments", as defined in the Lucent Assumable Credit Agreement and (iii) the
"Commitments", as defined in the Five-Year Lucent Credit Agreement.
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"Consolidated Net Income": 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 (i) the income (or deficit) of Agere and its Subsidiaries and (ii) 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 Tangible Assets": as defined in the Indenture.
"Consolidated Operating EBITDA": 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 (i) income tax expense (net of any tax adjustments), (ii) 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), (iii) depreciation and amortization expense, (iv)
amortization of intangibles (including, but not limited to, goodwill) and
organization costs, (v) charges relating to purchased in-process research and
development, (vi) the after-tax effects of the first $4,000,000,000 of pre-tax
business restructuring charges taken after the date hereof, (vii) additional
charges taken after the date hereof in connection with Vendor Financings and
Vendor Financing Dispositions, (viii) 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, non-cash losses on sales of assets outside of the ordinary course of
business), and (ix) 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 (i) interest income, (ii) any extraordinary, unusual or non-recurring
income or gains (including, whether or not otherwise includable as a separate
item in the statement of such Consolidated Net Income for such period, gains on
the sales of assets outside of the ordinary course of business) and (iii) any
other non-cash income, all as determined on a consolidated basis.
"Contractual Obligation": 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": 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.
"Copyrights": (i) all copyrights arising under the laws of the
United States, any other country or any political subdivision thereof, whether
registered or unregistered and whether published or unpublished (including,
without limitation, those listed in Schedule 6), all registrations and
recordings thereof, and all applications in connection therewith, including,
without limitation, all registrations, recordings and applications in the United
States Copyright Office, and (ii) the right to obtain all renewals thereof.
"Copyright Licenses": any written agreement naming any Grantor
as licensor or licensee, granting any right under any Copyright, including,
without limitation, the grant of rights to manufacture, distribute, exploit and
sell materials derived from any Copyright.
"Current Asset Ratio": on any date of determination, the ratio
of (i) the sum of cash, Permitted Investments, receivables and inventories of
the Borrower and its Subsidiaries (other than Agere and its Subsidiaries) that
would, in conformity with GAAP, appear on a consolidated balance sheet of the
Borrower on such date to (ii) the sum of (A) the aggregate amount of the
Commitments as of such date and (B) the aggregate amount of the External Sharing
Debt (other than External Sharing Debt of the type described in clause (i) of
the definition of "External Specified Debt") as of such date.
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"Deposit Account": as defined in the Uniform Commercial Code of
any applicable jurisdiction and, in any event, including, without limitation,
any demand, time, savings, passbook or like account maintained with a depositary
institution.
"Disposition": 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 "$": lawful money of the United States of America.
"Domestic Subsidiary": any Subsidiary of the Borrower organized
under the laws of any jurisdiction within the United States of America.
"Event of Default": the collective reference to (i) "Event of
Default", as defined in the 364-Day Lucent Credit Agreement, (ii) "Event of
Default", as defined in the Lucent Assumable Credit Agreement and (iii) "Event
of Default", as defined in the Five-Year Lucent Credit Agreement.
"Excluded Property": as to any Grantor, (i) any Receivables or
loans made pursuant to Vendor Financings (and related assets including, without
limitation, all deposit accounts, contract rights, chattel paper, instruments,
general intangibles and other assets of any kind, in each case, for which any
Grantor has granted a security interest in such deposit accounts, contract
rights, chattel paper, instruments, general intangibles and other assets in
connection with such Vendor Financing) that are the subject of securitizations
permitted by the Credit Agreements, (ii) any real estate assets that are the
subject of CMO Transactions permitted by the Credit Agreements and (iii) any
other property upon which a Lien permitted by the Credit Agreement exists, to
the extent that the terms of any Contractual Obligation secured by such Lien or
entered into in connection therewith would prohibit a security interest in such
property granted pursuant to this Agreement, or would give any party to such
Contractual Obligation (other than the Borrower or a Subsidiary) the right to
terminate such Contractual Obligation.
"External Non-Specified Sharing Debt": External Sharing Debt not
constituting External Specified Debt.
"External Sharing Debt": the collective reference to: (i)
External Specified Debt and External Non-Specified Sharing Debt, in each case in
existence on the date hereof and listed on Schedule 7, and (ii) such other
additional Indebtedness, liabilities and other obligations designated as
External Sharing Debt in accordance with Section 8.14(b).
"External Sharing Debt Obligations": the unpaid principal of and
interest on the obligations of the Borrower or any Subsidiary in respect of the
External Sharing Debt and all other obligations and liabilities of the Borrower
or any of its Subsidiaries (including, without limitation, interest accruing at
the then applicable rate provided in the applicable agreement evidencing or
governing such External Sharing Debt after the maturity of the obligations
thereunder and interest accruing at the then applicable rate provided in the
applicable agreement evidencing or governing such External Sharing Debt after
the filing of any petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to the Borrower or any of its
Subsidiaries, whether or not a claim for post-filing or post-petition interest
is allowed in such proceeding) to the Collateral Agent or any other Secured
Party, 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, any agreement evidencing or governing such External Sharing
Debt, this Agreement or any other document made, delivered or given in
connection with any of the foregoing, in each case whether on account of
principal, interest, reimbursement obligations, fees, indemnities, costs,
expenses or otherwise (including, without limitation,
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all fees and disbursements of counsel to the Collateral Agent or to the other
Secured Parties that are required to be paid by the Borrower or any of its
Subsidiaries pursuant to the terms of any of the foregoing agreements).
"External Sharing Debt Supplement": an External Sharing Debt
Supplement, substantially in the form of Annex 2 hereto or in such other form as
shall be reasonably acceptable to the Collateral Agent.
"External Specified Debt": obligations of the Borrower or any of
its Subsidiaries under or in respect of (including pursuant to Guarantees or
other credit support): (i) 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, (ii) lines of credit
or other credit facilities entered into by Foreign Subsidiaries, (iii) Vendor
Financing Exposure, (iv) the synthetic lease transactions totaling $101,818,080
arranged by The Bank of Nova Scotia and The Sumitomo Bank Leasing and Finance,
Inc. related to commercial property in Aurora, Colorado and Alameda, California,
(v) 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, (vi) the
Participation Agreement and the documents entered into in connection therewith
and (vii) up to Euro 600 million in respect of the vendor financing arrangements
for MARABU Vermogensverwaltung GmbH, a company domiciled in the Federal Republic
of Germany, 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.
"Foreign Subsidiary": any Subsidiary of the Borrower that is not
a Domestic Subsidiary.
"Foreign Subsidiary Voting Stock": the voting Capital Stock of
any Foreign Subsidiary.
"GAAP": subject to Section 1.03 of each of the Credit
Agreements, generally accepted accounting principles, applied on a consistent
basis.
"General Intangibles": all "general intangibles" as such term is
defined in Section 9-106 of the New York UCC and, in any event, including,
without limitation, with respect to any Grantor, all contracts, agreements,
instruments and indentures in any form, and portions thereof, to which such
Grantor is a party or under which such Grantor has any right, title or interest
or to which such Grantor or any property of such Grantor is subject, as the same
may from time to time be amended, supplemented or otherwise modified, including,
without limitation, (i) all rights of such Grantor to receive moneys due and to
become due to it thereunder or in connection therewith, (ii) all rights of such
Grantor to damages arising thereunder and (iii) all rights of such Grantor to
perform and to exercise all remedies thereunder, in each case to the extent the
terms thereof (after giving effect to any consent that has been obtained, it
being understood that such Grantor is not obligated to obtain any such consent)
do not prohibit the grant by such Grantor of a security interest pursuant to
this Agreement in its right, title and interest therein without the consent of
any other party thereto and do not give any other party thereto the right to
terminate its obligations thereunder; provided, that the foregoing limitation
shall not affect, limit, restrict or impair the grant by such Grantor of a
security interest pursuant to this Agreement in any Receivable or any money or
other amounts due or to become due or other right to payment under any such
contract, agreement, instrument or indenture.
"Governmental Authority": the government of the United States of
America, any other nation or any political subdivision thereof, whether state or
local, and any agency, authority,
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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": with respect to any Person (the "guarantor"), 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,
(i) 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, (ii) 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, (iii)
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 (iv) 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.
"Guaranteed Obligations": (i) in the case of the Borrower, the
External Sharing Debt Obligations of any Subsidiary of the Borrower (it being
understood and agreed that, with respect to any item of External Sharing Debt,
the Borrower shall not guarantee such External Sharing Debt pursuant to Section
2 to the extent the Borrower has separately guaranteed the payment of all or any
portion of such item of External Sharing Debt and such guarantee is in full
force and effect) and (ii) in the case of each Subsidiary Guarantor, the
Borrower Obligations and the obligations of the Borrower, direct or contingent,
now existing or hereafter incurred, in respect of the External Sharing Debt
Obligations (including to the extent guaranteed by the Borrower pursuant to
Section 2).
"Guarantor Obligations": with respect to any Guarantor, all
obligations and liabilities of such Guarantor which may arise under or in
connection with this Agreement (including, without limitation, Section 2) or any
other Loan Document to which such Guarantor is a party, in each case whether on
account of guarantee obligations, reimbursement obligations, fees, indemnities,
costs, expenses or otherwise (including, without limitation, all fees and
disbursements of counsel to the Collateral Agent or to the other Secured Parties
that are required to be paid by such Guarantor pursuant to the terms of this
Agreement or any other Loan Document).
"Guarantors": the collective reference to each Grantor in its
capacity as a guarantor pursuant to Section 2.
"Hedging Agreement": (i) 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 (ii) 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": with respect to any Person, without duplication,
(i) all obligations of such Person for borrowed money or with respect to
deposits or advances of any kind, (ii) all obligations of such Person evidenced
by bonds, debentures, notes or similar instruments, (iii) all obligations of
such Person upon which interest charges are customarily paid, (iv) all
obligations of such Person under conditional sale or other title retention
agreements relating to property acquired by such Person, (v) 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), (vi) 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
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secured thereby has been assumed, (vii) all Guarantees by such Person of
Indebtedness of others, (viii) all Capital Lease Obligations of such Person,
(ix) all obligations, contingent or otherwise, of such Person as an account
party in respect of letters of credit and letters of guaranty and (x) 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": the Indenture, dated as of April 1, 1996, between
the Borrower and The Bank of New York, as Trustee.
"Intellectual Property": the collective reference to all rights,
priorities and privileges relating to intellectual property, whether arising
under United States, multinational or foreign laws or otherwise, including,
without limitation, the Copyrights, the Copyright Licenses, the Patents, the
Patent Licenses, the Trademarks and the Trademark Licenses, and all rights to
xxx at law or in equity for any infringement or other impairment thereof,
including the right to receive all proceeds and damages therefrom; provided that
"Intellectual Property" shall not include any Copyright License, Patent License
or Trademark License to the extent that the terms thereof (after giving effect
to any consent that has been obtained, it being understood that no Grantor is
obligated to obtain any such consent) prohibit the grant by the applicable
Grantor of a security interest pursuant to this Agreement in its right, title
and interest therein without the consent of any other party thereto or give any
other party thereto the right to terminate its obligations thereunder; provided,
further, that the foregoing limitation shall not affect, limit, restrict or
impair the grant by such Grantor of a security interest pursuant to this
Agreement in any Receivable or any money or other amounts due or to become due
or other right to payment under any such Copyright License, Patent License or
Trademark License.
"Intercompany Note": any promissory note evidencing loans made
by any Grantor to the Borrower or any of its Subsidiaries.
"Investment Property": the collective reference to (i) all
"investment property" as such term is defined in Section 9-115 of the New York
UCC (other than any Foreign Subsidiary Voting Stock excluded from the definition
of "Pledged Stock") and (ii) whether or not constituting "investment property"
as so defined, all Pledged Notes and all Pledged Stock; provided that
"Investment Property" shall not include any of the foregoing items issued by any
Person (other than a Subsidiary of the Borrower) to the extent that the terms of
any applicable shareholder or similar agreement (after giving effect to any
consent that has been obtained, it being understood that no Grantor is obligated
to obtain any such consent) prohibit the grant by the applicable Grantor of a
security interest pursuant to this Agreement in its right, title and interest
therein without the consent of any other party thereto; provided, further, that
the foregoing limitation shall not affect, limit, restrict or impair the grant
by such Grantor of a security interest pursuant to this Agreement in any
Receivable or any money or other amounts due or to become due or other right to
payment under any such Investment Property.
"Issuers": the collective reference to each issuer of any
Investment Property, provided that, for purposes of Section 4.02(a) of each of
the Credit Agreements, "Issuer" shall mean each Subsidiary of the Borrower that
is an issuer of any Investment Property.
"Lien": with respect to any asset, (i) any mortgage, deed of
trust, lien, pledge, hypothecation, encumbrance, charge or security interest in,
on or of such asset, (ii) 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
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asset and (iii) in the case of securities, any purchase option, call or similar
right of a third party with respect to such securities.
"Loans" the collective reference to (i) the "Loans", as defined
in the 364-Day Lucent Credit Agreement, (ii) the "Loans", as defined in the
Lucent Assumable Credit Agreement and (iii) the "Loans", as defined in the
Five-Year Lucent Credit Agreement.
"Loan Documents": the collective reference to (i) the "Loan
Documents", as defined in the 364-Day Lucent Credit Agreement, (ii) the "Loan
Documents", as defined in the Lucent Assumable Credit Agreement and (iii) the
"Loan Documents", as defined in the Five-Year Lucent Credit Agreement.
"Loan Parties": the collective reference to Borrower and each
Subsidiary Guarantor.
"Material Foreign Subsidiary": any Foreign Subsidiary that is a
Material Subsidiary.
"Material Subsidiary": 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.
"Moody's": Xxxxx'x Investors Service, Inc.
"New York UCC": the Uniform Commercial Code as from time to time
in effect in the State of New York.
"Obligations": (i) in the case of the Borrower, the Borrower
Obligations, its External Sharing Debt Obligations and its Guarantor
Obligations, and (ii) in the case of each Subsidiary Guarantor, its Guarantor
Obligations and its External Sharing Debt Obligations.
"Ordinary Course Buyers": with respect to goods only, buyers in
the ordinary course of business to the extent provided in Section 9-307(1) of
the Uniform Commercial Code as in effect from time to time in the applicable
jurisdiction.
"Participation Agreement": 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 the Borrower would sell Vendor Financings to an
"Insured Special Purpose Trust" with limited recourse.
"Patents": (i) all letters patent of the United States, any
other country or any political subdivision thereof, all reissues and extensions
thereof and all goodwill associated therewith, including, without limitation,
any of the foregoing referred to in Schedule 6, (ii) all applications for
letters patent of the United States or any other country and all divisions,
continuations and continuations-in-part thereof, including, without limitation,
any of the foregoing Class 1 patent applications referred to in Schedule 6, and
(iii) all rights to obtain any reissues or extensions of the foregoing.
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"Patent License": all agreements, whether written or oral,
providing for the grant by or to any Grantor of any right to manufacture, use or
sell any invention covered in whole or in part by a Patent.
"Person": any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
"Pledged Notes": all promissory notes listed on Schedule 2, all
Intercompany Notes at any time issued to any Grantor and all other promissory
notes issued to or held by any Grantor (other than promissory notes issued in
connection with extensions of trade credit by any Grantor in the ordinary course
of business); provided that "Pledged Notes" shall not include any of the
foregoing items issued by any Person (other than a Subsidiary of the Borrower)
to the extent that the terms of any applicable shareholder or similar agreement
(after giving effect to any consent that has been obtained, it being understood
that no Grantor is obligated to obtain any such consent) prohibit the grant by
the applicable Grantor of a security interest pursuant to this Agreement in its
right, title and interest therein without the consent of any other party
thereto; provided, further, that the foregoing limitation shall not affect,
limit, restrict or impair the grant by such Grantor of a security interest
pursuant to this Agreement in any Receivable or any money or other amounts due
or to become due or other right to payment under any such Pledged Notes.
"Pledged Stock": the shares of Capital Stock listed on
Schedule 2, together with any other shares, stock certificates, options,
interests or rights of any nature whatsoever in respect of the Capital Stock of
any Person that may be issued or granted to, or held by, any Grantor while this
Agreement is in effect; provided that in no event shall (i) any Capital Stock of
any Subsidiary other than a Material Subsidiary be required to be pledged
hereunder or (ii) more than 65% of the total outstanding Foreign Subsidiary
Voting Stock of any Foreign Subsidiary be required to be pledged hereunder;
provided that "Pledged Stock" shall not include any of the foregoing items
issued by any Person (other than a Subsidiary of the Borrower) to the extent
that the terms of any applicable shareholder or similar agreement (after giving
effect to any consent that has been obtained, it being understood that no
Grantor is obligated to obtain any such consent) prohibit the grant by the
applicable Grantor of a security interest pursuant to this Agreement in its
right, title and interest therein without the consent of any other party
thereto; provided, further, that the foregoing limitation shall not affect,
limit, restrict or impair the grant by such Grantor of a security interest
pursuant to this Agreement in any Receivable or any money or other amounts due
or to become due or other right to payment under any such Pledged Stock.
"Proceeds": all "proceeds" as such term is defined in
Section 9-306(1) of the New York UCC and, in any event, shall include, without
limitation, all dividends or other income from the Investment Property,
collections thereon or distributions or payments with respect thereto.
"Principal Properties": as defined in the Indenture.
"Rating Agencies": the collective reference to S&P and Moody's.
"Receivable": any right to payment for goods sold or leased or
for services rendered, whether or not such right is evidenced by an Instrument
or Chattel Paper and whether or not it has been earned by performance
(including, without limitation, any Account).
"Requirement of Law": 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.
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"Restricted Collateral": the collective reference to all
Principal Properties and Restricted Securities, whether now owned or hereafter
acquired, which, to the extent securing the Obligations, would cause the
Obligations constituting Borrowed Debt to be Secured Indebtedness under the
Indenture. For the avoidance of doubt, it is understood and agreed that, in the
event that Agere or any of its Subsidiaries is required to enter into this
Agreement pursuant to Section 5.11 of any of the Credit Agreements, "Restricted
Collateral" shall include any such Principal Properties and Restricted
Securities owned by Agere or any of its Subsidiaries.
"Restricted Secured Indebtedness": at any time, the portion of
the sum of the outstanding principal amount of the Obligations constituting
Borrowed Debt that is equal to the maximum aggregate principal amount of
outstanding Obligations constituting Borrowed Debt that may be secured at such
time (taking into account, among other things, any Indebtedness under the Agere
Assumable Credit Agreement that is secured by any Principal Properties or
Restricted Securities) without causing the Indebtedness under the Indenture to
be required to be equally and ratably secured. Such portion shall be allocated
at such time among the Obligations constituting Borrowed Debt as follows: first,
such portion shall be allocated to the Obligations constituting Borrowed Debt in
respect of the Lucent Assumable Credit Agreement and, second, to the extent of
any excess ratably among all other Obligations constituting Borrowed Debt.
"Restricted Securities": as defined in the Indenture.
"S&P": Standard and Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc.
"Secured Indebtedness": as defined in the Indenture.
"Secured Parties": the collective reference to the Collateral
Agent, the Administrative Agents, the Lenders and the holders of the External
Sharing Debt Obligations.
"Securities Act": the Securities Act of 1933, as amended.
"Subsidiary": 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 (i) would not constitute a consolidated subsidiary of the Borrower
in accordance with GAAP and (ii) 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": 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) of each of the Credit Agreements.
"Trademarks": (i) all trademarks, trade names, corporate names,
company names, business names, fictitious business names, trade styles, service
marks, logos and other source or business identifiers, and all goodwill
associated therewith, now existing or hereafter adopted or acquired, all
registrations and recordings thereof, and all applications in connection
therewith, whether in the United States Patent and Trademark Office or in any
similar office or agency of the United States, any State thereof or any other
country or any political subdivision thereof, or otherwise, and all common-law
rights related thereto, including, without limitation, any of the foregoing
referred to in Schedule 6, and (ii) the right to obtain all renewals thereof.
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"Trademark License": any agreement, whether written or oral,
providing for the grant by or to any Grantor of any right to use any Trademark.
"Unrestricted Collateral": all Collateral other than the
Restricted Collateral.
"Vendor Financing Dispositions": Dispositions of Indebtedness
owing to the Borrower or any of its Subsidiaries consisting of loans made
pursuant to Vendor Financings.
"Vendor Financing Exposure": Guarantees or other credit support
in respect of Indebtedness under Vendor Financings, to the extent such
Indebtedness is held by any Person other than the Borrower or any of its
Subsidiaries or is the subject of a securitization.
"Vendor Financings": credit facilities and other financing
arrangements providing for loans or other extensions of credit to customers or
prospective customers of the Borrower or any of its Subsidiaries (or Affiliates
of such customers or prospective customers), including, without limitation, the
transactions contemplated by the Participation Agreement and the other documents
entered into in connection therewith.
"Voting Shares": 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": any Wholly Owned
Subsidiary of the Borrower that is a Domestic Subsidiary and a Material
Subsidiary.
"Wholly Owned Subsidiary": 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.
1.2 Other Definitional Provisions. (a) The words "hereof," "herein",
"hereto" and "hereunder" and words of similar import when used in this Agreement
shall refer to this Agreement as a whole and not to any particular provision of
this Agreement, and Section and Schedule references are to this Agreement unless
otherwise specified.
(b) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
(c) Where the context requires, terms relating to the Collateral or
any part thereof, when used in relation to a Grantor, shall refer to such
Grantor's Collateral or the relevant part thereof.
(d) For the purposes of this Agreement, (i) the words "include,"
"includes" and "including" shall be deemed to be followed by the phrase "without
limitation", (ii) 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 (iii) 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.
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SECTION 2. GUARANTEE
2.1 Guarantee. (a) Each of the Guarantors hereby, jointly and
severally, unconditionally and irrevocably, guarantees to the Collateral Agent,
for the ratable benefit of the Secured Parties and their respective successors,
indorsees, transferees and assigns, the prompt and complete payment and
performance by the Borrower or the Subsidiaries of the Borrower, as applicable,
when due (whether at the stated maturity, by acceleration or otherwise) of the
Guaranteed Obligations.
(b) Anything herein or in any other Loan Document to the contrary
notwithstanding, the maximum liability of each Guarantor hereunder and under the
other Loan Documents shall in no event exceed the amount which can be guaranteed
by such Guarantor under applicable federal and state laws relating to the
insolvency of debtors (after giving effect to the right of contribution
established in Section 2.2).
(c) Each Guarantor agrees that the Guaranteed Obligations may at any
time and from time to time exceed the amount of the liability of such Guarantor
hereunder without impairing the guarantee contained in this Section 2 or
affecting the rights and remedies of the Collateral Agent or any other Secured
Party hereunder.
(d) The guarantee contained in this Section 2 shall remain in full
force and effect until all the Borrower Obligations and the obligations of each
Guarantor in respect of the Borrower Obligations under the guarantee contained
in this Section 2 shall have been satisfied by payment in full and the
Commitments shall be terminated, notwithstanding that from time to time during
the term of the Credit Agreements the Borrower may be free from any Borrower
Obligations.
(e) No payment made by the Borrower, any of the Guarantors, any
other guarantor or any other Person or received or collected by the Collateral
Agent or any other Secured Party from the Borrower, any of the Guarantors, any
other guarantor or any other Person by virtue of any action or proceeding or any
set-off or appropriation or application at any time or from time to time in
reduction of or in payment of the Guaranteed Obligations shall be deemed to
modify, reduce, release or otherwise affect the liability of any Guarantor
hereunder which shall, notwithstanding any such payment (other than any payment
made by such Guarantor in respect of the Guaranteed Obligations or any payment
received or collected from such Guarantor in respect of the Guaranteed
Obligations), remain liable for the Guaranteed Obligations up to the maximum
liability of such Guarantor hereunder until the Borrower Obligations are paid in
full and the Commitments are terminated
2.2 Right of Contribution. Each Subsidiary Guarantor hereby agrees
that to the extent that a Subsidiary Guarantor shall have paid more than its
proportionate share of any payment made hereunder, such Subsidiary Guarantor
shall be entitled to seek and receive contribution from and against any other
Subsidiary Guarantor hereunder which has not paid its proportionate share of
such payment. Each Subsidiary Guarantor's right of contribution shall be subject
to the terms and conditions of Section 2.3. The provisions of this Section 2.2
shall in no respect limit the obligations and liabilities of any Subsidiary
Guarantor to the Collateral Agent and the other Secured Parties, and each
Subsidiary Guarantor shall remain liable to the Collateral Agent and the other
Secured Parties for the full amount guaranteed by such Subsidiary Guarantor
hereunder.
2.3 No Subrogation. Notwithstanding any payment made by any
Guarantor hereunder or any set-off or application of funds of any Guarantor by
the Collateral Agent or any other Secured Party, no Guarantor shall be entitled
to be subrogated to any of the rights of the Collateral Agent or any other
Secured Party against the Borrower or any other Guarantor or any collateral
security or guarantee or right of offset held by the Collateral Agent or any
other Secured Party for the payment of the Guaranteed
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Obligations, nor shall any Guarantor seek or be entitled to seek any
contribution or reimbursement from the Borrower or any other Guarantor in
respect of payments made by such Guarantor hereunder, until all amounts owing to
the Collateral Agent and the other Secured Parties by the Borrower on account of
the Borrower Obligations are paid in full and the Commitments are terminated. If
any amount shall be paid to any Guarantor on account of such subrogation rights
at any time when all of the Borrower Obligations then due shall not have been
paid in full, such amount shall be held by such Guarantor in trust for the
Collateral Agent and the other Secured Parties, segregated from other funds of
such Guarantor, and shall, forthwith upon receipt by such Guarantor, be turned
over to the Collateral Agent in the exact form received by such Guarantor (duly
indorsed by such Guarantor to the Collateral Agent, if required), to be applied
against the Guaranteed Obligations, whether matured or unmatured, in the order
specified in the Collateral Sharing Agreement.
2.4 Amendments, etc. with respect to the Guaranteed Obligations.
Each Guarantor shall remain obligated hereunder notwithstanding that, without
any reservation of rights against any Guarantor and without notice to or further
assent by any Guarantor, any demand for payment of any of the Guaranteed
Obligations made by the Collateral Agent or any other Secured Party may be
rescinded by the Collateral Agent or such Secured Party and any of the
Guaranteed Obligations continued, and the Guaranteed Obligations, or the
liability of any other Person upon or for any part thereof, or any collateral
security or guarantee therefor or right of offset with respect thereto, may,
from time to time, in whole or in part, be renewed, extended, amended, modified,
accelerated, compromised, waived, surrendered or released by the Collateral
Agent or any other Secured Party, and the Credit Agreements, the other Loan
Documents, any agreement evidencing or governing External Sharing Debt and any
other documents executed and delivered in connection therewith may be amended,
modified, supplemented or terminated, in whole or in part, as the Collateral
Agent (or the Administrative Agent, the Required Lenders, all Lenders or any
holder of External Sharing Debt Obligations, as the case may be) may deem
advisable from time to time, and any collateral security, guarantee or right of
offset at any time held by the Collateral Agent or any other Secured Party for
the payment of the Guaranteed Obligations may be sold, exchanged, waived,
surrendered or released. Neither the Collateral Agent nor any other Secured
Party shall have any obligation to protect, secure, perfect or insure any Lien
at any time held by it as security for the Guaranteed Obligations or for the
guarantee contained in this Section 2 or any property subject thereto.
2.5 Guarantee Absolute and Unconditional. Each Guarantor waives any
and all notice of the creation, renewal, extension or accrual of any of the
Guaranteed Obligations and notice of or proof of reliance by the Collateral
Agent or any other Secured Party upon the guarantee contained in this Section 2
or acceptance of the guarantee contained in this Section 2; the Guaranteed
Obligations, and any of them, shall conclusively be deemed to have been created,
contracted or incurred, or renewed, extended, amended or waived, in reliance
upon the guarantee contained in this Section 2; and all dealings between the
Borrower, any Subsidiary and any of the Guarantors, on the one hand, and the
Collateral Agent and the other Secured Parties, on the other hand, likewise
shall be conclusively presumed to have been had or consummated in reliance upon
the guarantee contained in this Section 2. Each Guarantor waives diligence,
presentment, protest, demand for payment and notice of default or nonpayment to
or upon the Borrower, any Subsidiary or any of the Guarantors with respect to
the Guaranteed Obligations. Each Guarantor understands and agrees that the
guarantee contained in this Section 2 shall be construed as a continuing,
absolute and unconditional guarantee of payment without regard to (a) the
validity or enforceability of any Credit Agreement or any other Loan Document,
any agreement evidencing or governing External Sharing Debt, any of the
Guaranteed Obligations or any other collateral security therefor or guarantee or
right of offset with respect thereto at any time or from time to time held by
the Collateral Agent or any other Secured Party, (b) any defense, set-off or
counterclaim (other than a defense of payment or performance) which may at any
time be available to or be asserted by the Borrower or any other Person against
the Collateral Agent or any other Secured Party, or (c) any other circumstance
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whatsoever (with or without notice to or knowledge of the Borrower or such
Guarantor) which constitutes, or might be construed to constitute, an equitable
or legal discharge of the Borrower or any Subsidiary for the Guaranteed
Obligations, or of such Guarantor under the guarantee contained in this
Section 2, in bankruptcy or in any other instance. When making any demand
hereunder or otherwise pursuing its rights and remedies hereunder against any
Guarantor, the Collateral Agent or any other Secured Party may, but shall be
under no obligation to, make a similar demand on or otherwise pursue such rights
and remedies as it may have against the Borrower, any other Guarantor or any
other Person or against any collateral security or guarantee for the Guaranteed
Obligations or any right of offset with respect thereto, and any failure by the
Collateral Agent or any other Secured Party to make any such demand, to pursue
such other rights or remedies or to collect any payments from the Borrower, any
other Guarantor or any other Person or to realize upon any such collateral
security or guarantee or to exercise any such right of offset, or any release of
the Borrower, any other Guarantor or any other Person or any such collateral
security, guarantee or right of offset, shall not relieve any Guarantor of any
obligation or liability hereunder, and shall not impair or affect the rights and
remedies, whether express, implied or available as a matter of law, of the
Collateral Agent or any other Secured Party against any Guarantor. For the
purposes hereof "demand" shall include the commencement and continuance of any
legal proceedings.
2.6 Reinstatement. The guarantee contained in this Section 2 shall
continue to be effective, or be reinstated, as the case may be, if at any time
payment, or any part thereof, of any of the Guaranteed Obligations is rescinded
or must otherwise be restored or returned by the Collateral Agent or any other
Secured Party upon the insolvency, bankruptcy, dissolution, liquidation or
reorganization of the Borrower or any Guarantor, or upon or as a result of the
appointment of a receiver, intervenor or conservator of, or trustee or similar
officer for, the Borrower or any Guarantor or any substantial part of its
property, or otherwise, all as though such payments had not been made.
2.7 Payments. Each Guarantor hereby guarantees that payments
hereunder will be paid to the Collateral Agent without set-off or counterclaim
in dollars (or, in the case of External Sharing Debt Obligations, the currency
required under the applicable instrument or agreement evidencing or governing
the same) at its offices at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx (or, in the case
of any currency other than dollars, such office or offices as the Collateral
Agent shall specify with respect thereto). Any and all payments by any Guarantor
hereunder shall be made free and clear of, and without deduction for, any and
all present or future Taxes (as defined in the Credit Agreements).
SECTION 3. GRANT OF SECURITY INTEREST
Each Grantor hereby assigns and transfers to the Collateral
Agent, and hereby grants to the Collateral Agent, for the benefit of the Secured
Parties, a security interest in, all of the following property (other than
property constituting Excluded Property) now owned or at any time hereafter
acquired by such Grantor or in which such Grantor now has or at any time in the
future may acquire any right, title or interest (collectively, excluding such
Excluded Property, the "Collateral"), as collateral security for the prompt and
complete payment and performance when due (whether at the stated maturity, by
acceleration or otherwise) of such Grantor's Obligations:
(a) all Accounts;
(b) all Chattel Paper;
(c) all Deposit Accounts;
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(d) all Documents;
(e) all Equipment;
(f) all General Intangibles;
(g) all Instruments;
(h) all Intellectual Property;
(i) all Inventory;
(j) all Investment Property;
(k) all books and records pertaining to the Collateral; and
(l) to the extent not otherwise included, all Proceeds and products
of any and all of the foregoing and all collateral security and guarantees given
by any Person with respect to any of the foregoing.
Notwithstanding the foregoing, (i) subject to clauses (iv) and
(v) below, all of the foregoing Collateral shall ratably secure all the
Obligations (other than Obligations in respect of Borrowed Debt), (ii) subject
to clause (v) below, all of the Unrestricted Collateral shall also ratably
secure the Obligations in respect of Borrowed Debt, (iii) subject to clause (iv)
below, all of the Restricted Collateral shall also secure the Restricted Secured
Indebtedness, (iv) the Lien on the Capital Stock of Agere (and, in the event
that Agere or any of its Subsidiaries is required to enter into this Agreement
pursuant to Section 5.11 of any of the Credit Agreements, the Lien on any
Restricted Collateral of Agere and its Subsidiaries) shall secure, first, the
Restricted Secured Indebtedness under the Lucent Assumable Credit Agreement and,
second, all other Restricted Secured Indebtedness and (v) in the event that
Agere or any of its Subsidiaries is required to enter into this Agreement
pursuant to Section 5.11 of any of the Credit Agreements, the Lien on any
Unrestricted Collateral of Agere and its Subsidiaries shall secure, first, the
Obligations under the Lucent Assumable Credit Agreement and, second, all other
Obligations.
SECTION 4. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Lenders to enter into
the Credit Agreements and to induce the Lenders to make their respective
extensions of credit to the Borrower thereunder, each Grantor hereby represents
and warrants to the Collateral Agent and each Lender that:
4.1 Title; No Other Liens. Except for the security interest granted
to the Collateral Agent for the benefit of the Secured Parties pursuant to this
Agreement and the other Liens permitted to exist on the Collateral by the Credit
Agreements, such Grantor owns each item of the Collateral free and clear of any
and all Liens. No financing statement or other public notice with respect to all
or any part of the Collateral is on file or of record in any public office,
except such as have been filed in favor of the Collateral Agent, for the benefit
of the Secured Parties, pursuant to this Agreement or as are permitted by the
Credit Agreements.
4.2 Perfected First Priority Liens. The security interests granted
pursuant to this Agreement, upon completion of the filings and other actions
specified on Schedule 3 (which, in the case of all filings and other documents
referred to on said Schedule, have been delivered to the Collateral Agent in
completed and duly executed form) and, with respect to Collateral acquired after
the date hereof and
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Grantors that become a party hereto after the date hereof and changes in the
location of any Grantor's chief executive office or sole place of business or
the location where any Inventory or Equipment of such Grantor is located, such
other filings and other actions as may be necessary under any Requirement of
Law, (a) will constitute valid perfected security interests in all of the
Collateral in favor of the Collateral Agent, for the benefit of the Secured
Parties, as collateral security for such Grantor's Obligations, enforceable in
accordance with the terms hereof against all creditors of such Grantor and any
Persons purporting to purchase any Collateral from such Grantor (other than
Ordinary Course Buyers) and (b) are prior to all other Liens on the Collateral
in existence on the date of such filings or other actions (i) except for Liens
permitted by the Credit Agreements which have priority over the Liens on the
Collateral, (ii) except that the Lien on the Capital Stock of Agere (and, in the
event that Agere or any of its Subsidiaries is required to enter into this
Agreement pursuant to Section 5.11 of any of the Credit Agreements, the Lien on
any Restricted Collateral of Agere and its Subsidiaries) shall secure, first,
the Restricted Secured Indebtedness under the Lucent Assumable Credit Agreement
and, second, all other Restricted Secured Indebtedness, (iii) except that, in
the event that Agere or any of its Subsidiaries is required to enter into this
Agreement pursuant to Section 5.11 of any of the Credit Agreements, the Lien on
any Unrestricted Collateral of Agere and its Subsidiaries shall secure, first,
the Obligations under the Lucent Assumable Credit Agreement and, second, all
other Obligations, (iv) except to the extent that any Collateral consists of any
Instrument, Certificated Security or Chattel Paper in an amount up to and
including $5,000,000 and such Instrument, Certificated Security or Chattel Paper
has not been delivered to the Collateral Agent (it being understood and agreed
that the failure of the Collateral Agent to take possession of any such
Instrument or Certificated Security shall not impair in any respect the
perfection of the security interest hereunder in such Instrument or Certificated
Security to the extent perfected by filing), (v) except, with respect to
Collateral located outside the United States and with respect to which the
Collateral Agent has not perfected its security interest therein under
applicable foreign law, to the extent that perfection in such foreign
jurisdiction would require filings or other actions outside of the United
States, (vi) except, with respect to any Investment Property with respect to
which the Collateral Agent has not obtained "control" (within the meaning of the
applicable Uniform Commercial Code), to the extent that the Collateral Agent
does not have such "control", (vii) except, with respect to any Intellectual
Property, to the extent that such Intellectual Property is not listed in a
filing made pursuant to this Agreement with the United States Patent and
Trademark Office or the United States Copyright Office, as applicable (it being
understood and agreed that the failure to list any such Intellectual Property in
any such filing with the United States Patent and Trademark Office or the United
States Copyright Office shall not impair in any respect the perfection of the
security interest hereunder in General Intangibles) and (viii) except, with
respect to any Deposit Accounts located in a jurisdiction which would require
actions other than filings under the applicable Uniform Commercial Code, to the
extent that such other actions have not been taken.
4.3 Jurisdiction of Organization; Chief Executive Office. On the
date hereof, such Grantor's jurisdiction of organization and the location of
such Grantor's chief executive office or sole place of business are specified on
Schedule 4.
4.4 Inventory and Equipment. Schedule 5 lists, on the date hereof,
each county (or, in the case of Massachusetts, town) located in each of the
following states in which one or more Grantors keeps Inventory and Equipment
(other than mobile goods) having an aggregate fair market value of more than
$1,000,000 if such county (or town, as applicable) is the only county (or town)
in such state in which any such Inventory or Equipment is located: Arkansas,
Kentucky, Massachusetts, Mississippi, Missouri, New Hampshire, New York, North
Carolina, Ohio, Pennsylvania, Virginia and Wyoming.
4.5 Farm Products. None of the Collateral constitutes, or is the
Proceeds of, Farm Products.
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4.6 Investment Property. (a) The shares of Pledged Stock pledged by
such Grantor hereunder constitute all the issued and outstanding shares of all
classes of the Capital Stock of each Issuer owned by such Grantor (other than
any Subsidiary of such Grantor that is not a Material Subsidiary) or, in the
case of Foreign Subsidiary Voting Stock, if less, 65% of the outstanding Foreign
Subsidiary Voting Stock of each such relevant Issuer.
(b) All the shares of the Pledged Stock as to which a Subsidiary of
the Borrower is the Issuer have been duly and validly issued and are fully paid
and nonassessable.
(c) Each of the Pledged Notes in a principal amount in excess of
$5,000,000 constitutes the legal, valid and binding obligation of the obligor
with respect thereto, enforceable in accordance with its terms, subject to the
effects of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered in a proceeding in
equity or at law) and an implied covenant of good faith and fair dealing.
(d) Except as set forth on Schedule 11, such Grantor is the record
and beneficial owner of, and has good and marketable title to, the Investment
Property pledged by it hereunder, free of any and all Liens of any other Person,
except the security interest created by this Agreement.
4.7 Receivables. (a) No amount in excess of $5,000,000 payable to
such Grantor under or in connection with any Receivable constituting Collateral
hereunder is evidenced by any Instrument or Chattel Paper which has not been
delivered to the Collateral Agent.
(b) The amounts represented by such Grantor to the Secured Parties
from time to time as owing to such Grantor in respect of the Receivables
constituting Collateral hereunder will at such times be accurate in all material
respects.
4.8 Intellectual Property. Schedule 6 lists all material U.S.
Copyrights, Patents and Trademarks (including Class 1 applications for Patents
but excluding, in each case, all other applications therefor) owned by such
Grantor in its own name on the date hereof.
4.9 Principal Properties and Restricted Securities. Schedule 7
and Schedule 8 list all Principal Properties and Restricted Securities,
respectively, owned by any Grantor on the date hereof which, to the extent
securing the Obligations, would cause the Obligations constituting Borrowed Debt
to be Secured Indebtedness under the Indenture.
4.10 Secured Indebtedness and Attributable Debt. Except as set forth
on Schedule 10, on the date hereof, there is no outstanding Secured Indebtedness
(other than in respect of the Credit Agreements and the External Sharing Debt)
or Attributable Debt. On the date hereof, 15% of Consolidated Net Tangible
Assets is not less than $4,100,000,000.
SECTION 5. COVENANTS
Each Grantor covenants and agrees with the Collateral Agent
that, from and after the date of this Agreement until the Borrower Obligations
shall have been paid in full and the Commitments shall have terminated:
5.1 Delivery of Instruments, Certificated Securities and Chattel
Paper. If any amount in excess of $5,000,000 payable under or in connection with
any of the Collateral shall be or become
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evidenced by any Instrument, Certificated Security or Chattel Paper, such
Instrument, Certificated Security or Chattel Paper shall be immediately
delivered to the Collateral Agent, duly indorsed in a manner satisfactory to the
Collateral Agent, to be held as Collateral pursuant to this Agreement.
5.2 Maintenance of Insurance. All insurance required to be
maintained pursuant to Section 5.07(b) of each of the Credit Agreements in the
nature of casualty insurance covering the Collateral shall (a) provide that no
cancellation, material reduction in amount or material change in coverage
thereof shall be effective until at least 30 days after receipt by the
Collateral Agent of written notice thereof, (b) name the Collateral Agent as
insured party or loss payee, (c) if reasonably requested by the Collateral
Agent, include a breach of warranty clause and (d) be reasonably satisfactory in
all other respects to the Collateral Agent.
5.3 Payment of Obligations. Such Grantor will pay and discharge or
otherwise satisfy at or before maturity or before they become delinquent, as the
case may be, all material taxes, assessments and governmental charges or levies
imposed upon the Collateral or in respect of income or profits therefrom, as
well as all claims of any kind (including, without limitation, claims for labor,
materials and supplies) against or with respect to the Collateral, except that
no such charge need be paid if the amount or validity thereof is currently being
contested in good faith by appropriate proceedings, reserves in conformity with
GAAP with respect thereto have been provided on the books of such Grantor and
such proceedings could not reasonably be expected to result in the sale,
forfeiture or loss of any material portion of the Collateral or any interest
therein.
5.4 Maintenance of Perfected Security Interest; Further
Documentation. (a) Such Grantor shall maintain the security interest created by
this Agreement as a perfected security interest (to the extent that perfection
would be required for the representation in Section 4.2 to be accurate) having
at least the priority described in Section 4.2 and shall defend such security
interest against the claims and demands of all Persons whomsoever.
(b) Such Grantor will furnish to the Collateral Agent from time to
time statements and schedules further identifying and describing the assets and
property of such Grantor and such other reports in connection therewith as the
Collateral Agent may reasonably request, all in reasonable detail.
(c) At any time and from time to time, upon the written request of
the Collateral Agent, and at the sole expense of such Grantor, such Grantor will
promptly and duly execute and deliver, and have recorded, such further
instruments and documents and take such further actions as the Collateral Agent
may reasonably request for the purpose of obtaining or preserving the full
benefits of this Agreement and of the rights and powers herein granted,
including, without limitation, (i) filing any financing or continuation
statements under the Uniform Commercial Code (or other similar laws) in effect
in any jurisdiction with respect to the security interests created hereby and
(ii) in the case of Investment Property, Deposit Accounts and any other relevant
Collateral, taking any actions necessary to enable the Collateral Agent to
obtain "control" (within the meaning of the applicable Uniform Commercial Code)
with respect thereto.
5.5 Changes in Locations, Name, etc. Such Grantor will not, except
upon 15 days' prior written notice to the Collateral Agent and delivery to the
Collateral Agent of (a) all additional executed financing statements and other
documents reasonably requested by the Collateral Agent to maintain the validity,
perfection and priority of the security interests provided for herein and (b)
with respect to Inventory and Equipment, a written supplement to Schedule 5
showing each county (or, in the case of Massachusetts, town) in the states
specified in Schedule 5 at which Inventory or Equipment shall be kept if there
is only one such county (or town) in such state:
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(i) permit any of the Inventory or Equipment to be kept at a
location other than (A) those listed on Schedule 5, (B) those locations where
the requisite financing statements have been filed and are in effect and (C)
those locations where the aggregate fair market value of Inventory and
Equipment of the Grantors is less than $1,000,000;
(ii) change its jurisdiction of organization or the location of its
chief executive office or sole place of business from that referred to in
Section 4.3; or
(iii) change its name, identity or corporate or other organizational
structure to such an extent that any financing statement filed by the
Collateral Agent in connection with this Agreement would become misleading.
5.6 Notices. Such Grantor will advise the Collateral Agent promptly,
in reasonable detail, of:
(a) any Lien (other than security interests created hereby or Liens
permitted under the Credit Agreements) on any of the Collateral which would
adversely affect the ability of the Collateral Agent to exercise any of its
remedies hereunder; and
(b) the occurrence of any other event which could reasonably be
expected to have a material adverse effect on the aggregate value of the
Collateral or on the security interests created hereby.
5.7 Investment Property. (a) If such Grantor shall become entitled
to receive or shall receive any certificate (including, without limitation, any
certificate representing a dividend or a distribution in connection with any
reclassification, increase or reduction of capital or any certificate issued in
connection with any reorganization), option or rights in respect of the Capital
Stock of any Issuer, whether in addition to, in substitution of, as a conversion
of, or in exchange for, any shares of the Pledged Stock, or otherwise in respect
thereof, such Grantor shall accept the same as the agent of the Collateral Agent
and the other Secured Parties, hold the same in trust for the Collateral Agent
and the other Secured Parties and deliver the same forthwith to the Collateral
Agent in the exact form received, duly indorsed by such Grantor to the
Collateral Agent, if required, together with an undated stock power covering
such certificate duly executed in blank by such Grantor and with, if the
Collateral Agent so requests, signature guaranteed, to be held by the Collateral
Agent, subject to the terms hereof, as additional collateral security for the
Obligations; provided that no Grantor shall be required to deliver any such
certificate or stock power with respect to the Capital Stock of any Subsidiary
that is not a Loan Party or a Material Foreign Subsidiary. Any sums paid upon or
in respect of the Investment Property upon the liquidation or dissolution of any
Issuer at any time that an Event of Default has occurred and is continuing shall
be paid over to the Collateral Agent to be held by it hereunder as additional
collateral security for the Obligations, and in case at any time that an Event
of Default has occurred and is continuing any distribution of capital shall be
made on or in respect of the Investment Property or any property shall be
distributed upon or with respect to the Investment Property pursuant to the
recapitalization or reclassification of the capital of any Issuer or pursuant to
the reorganization thereof, the property so distributed shall, unless otherwise
subject to a perfected security interest in favor of the Collateral Agent, be
delivered to the Collateral Agent to be held by it hereunder as additional
collateral security for the Obligations. If any sums of money or property so
paid or distributed in respect of the Investment Property shall be received by
such Grantor at any time that an Event of Default has occurred and is
continuing, such Grantor shall, until such money or property is paid or
delivered to the Collateral Agent, hold such money or property in trust for the
Collateral Agent and the other Secured Parties, segregated from other funds of
such Grantor, as additional collateral security for the Obligations.
(b) Without the prior written consent of the Collateral Agent, such
Grantor will not create, incur or permit to exist any Lien or option in favor
of, or any claim of any Person with respect to, any of
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the Investment Property or Proceeds thereof, or any interest therein, except for
(i) the security interests created by this Agreement and (ii) Liens permitted by
Section 6.03 of each of the Credit Agreements in respect of Investment Property
constituting Vendor Financings, joint ventures or minority investments.
(c) In the case of each Grantor which is an Issuer, such Issuer
agrees that (i) it will be bound by the terms of this Agreement relating to the
Investment Property issued by it and will comply with such terms insofar as such
terms are applicable to it and (ii) the terms of Sections 6.3(c) and 6.7 shall
apply to it, mutatis mutandis, with respect to all actions that may be required
of it pursuant to Section 6.3(c) or 6.7 with respect to the Investment Property
issued by it.
5.8 Intellectual Property. On the first anniversary of the date
hereof, the Borrower shall deliver to the Collateral Agent a true, correct and
complete list of each material U.S. Copyright, Patent and Trademark (including
Class 1 applications for Patents but excluding, in each case, all other
applications therefor) owned by the Grantors as of such date. Upon request of
the Collateral Agent, the applicable Grantor shall execute and deliver, and have
recorded, any and all agreements, instruments, documents, and papers as the
Administrative Agent may reasonably request to evidence the Collateral Agent's
and the other Secured Parties' security interest in any such Copyright, Patent
or Trademark and the goodwill and general intangibles of such Grantor relating
thereto or represented thereby.
SECTION 6. REMEDIAL PROVISIONS
6.1 Certain Matters Relating to Receivables. (a) The Collateral
Agent shall have the right to make test verifications of the Receivables
constituting Collateral hereunder in any manner and through any medium that it
reasonably considers advisable, and each Grantor shall furnish all such
assistance and information as the Collateral Agent may require in connection
with such test verifications, provided that the Collateral Agent shall not
communicate with the obligors under such Receivables except as permitted by
Section 6.2. At any time and from time to time, upon the Collateral Agent's
request and at the expense of the relevant Grantor, such Grantor shall cause
independent public accountants or others satisfactory to the Collateral Agent to
furnish to the Collateral Agent reports showing reconciliations, aging and test
verifications of, and trial balances for, such Receivables.
(b) The Collateral Agent hereby authorizes each Grantor to collect
such Grantor's Receivables constituting Collateral hereunder, subject to the
Collateral Agent's direction and control, and the Collateral Agent may curtail
or terminate said authority at any time after the occurrence and during the
continuance of an Event of Default. If required by the Collateral Agent at any
time after the occurrence and during the continuance of an Event of Default, any
payments of such Receivables, when collected by any Grantor, (i) shall be
forthwith (and, in any event, within two Business Days) deposited by such
Grantor in the exact form received, duly indorsed by such Grantor to the
Collateral Agent if required, in a Collateral Account maintained under the sole
dominion and control of the Collateral Agent, subject to withdrawal by the
Collateral Agent for the account of the Secured Parties only as provided in
Section 6.5, and (ii) until so turned over, shall be held by such Grantor in
trust for the Collateral Agent and the other Secured Parties, segregated from
other funds of such Grantor. Each such deposit of Proceeds of such Receivables
shall be accompanied by a report identifying in reasonable detail the nature and
source of the payments included in the deposit.
(c) At the Collateral Agent's request, each Grantor shall deliver to
the Collateral Agent all original and other documents evidencing, and relating
to, the agreements and transactions which gave rise to the Receivables
constituting Collateral hereunder, including, without limitation, all original
orders, invoices and shipping receipts.
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6.2 Communications with Obligors; Grantors Remain Liable. (a) The
Collateral Agent in its own name or in the name of others may at any time after
the occurrence and during the continuance of an Event of Default communicate
with obligors under the Receivables constituting Collateral hereunder to verify
with them to the Collateral Agent's satisfaction the existence, amount and terms
of any such Receivables.
(b) Upon the request of the Collateral Agent at any time after the
occurrence and during the continuance of an Event of Default, each Grantor shall
notify obligors on the Receivables constituting Collateral hereunder that such
Receivables have been assigned to the Collateral Agent for the benefit of the
Secured Parties and that payments in respect thereof shall be made directly to
the Collateral Agent.
(c) Anything herein to the contrary notwithstanding, each Grantor
shall remain liable under each of the Receivables to observe and perform all the
conditions and obligations to be observed and performed by it thereunder, all in
accordance with the terms of any agreement giving rise thereto. Neither the
Collateral Agent nor any other Secured Party shall have any obligation or
liability under any Receivable (or any agreement giving rise thereto) by reason
of or arising out of this Agreement or the receipt by the Collateral Agent or
any other Secured Party of any payment relating thereto, nor shall the
Collateral Agent or any other Secured Party be obligated in any manner to
perform any of the obligations of any Grantor under or pursuant to any
Receivable (or any agreement giving rise thereto), to make any payment, to make
any inquiry as to the nature or the sufficiency of any payment received by it or
as to the sufficiency of any performance by any party thereunder, to present or
file any claim, to take any action to enforce any performance or to collect the
payment of any amounts which may have been assigned to it or to which it may be
entitled at any time or times.
6.3 Pledged Stock. (a) Unless an Event of Default shall have
occurred and be continuing and the Collateral Agent shall have given notice to
the relevant Grantor of the Collateral Agent's intent to exercise its
corresponding rights pursuant to Section 6.3(b), each Grantor shall be permitted
to receive all cash dividends paid in respect of the Pledged Stock and all
payments made in respect of the Pledged Notes, to the extent permitted in the
Credit Agreements, and to exercise all voting and corporate or other
organizational rights with respect to the Investment Property; provided,
however, that no vote shall be cast or corporate or other organizational right
exercised or other action taken which, in the Collateral Agent's reasonable
judgment, would impair the Collateral or which would be inconsistent with or
result in any violation of any provision of any Credit Agreement, this Agreement
or any other Loan Document.
(b) If an Event of Default shall occur and be continuing and the
Collateral Agent shall give notice of its intent to exercise such rights to the
relevant Grantor or Grantors, (i) the Collateral Agent shall have the right to
receive any and all cash dividends, payments or other Proceeds paid in respect
of the Investment Property and make application thereof to the Obligations in
the order specified in the Collateral Sharing Agreement, and (ii) any or all of
the Investment Property shall be registered in the name of the Collateral Agent
or its nominee, and the Collateral Agent or its nominee may thereafter exercise
(x) all voting, corporate and other rights pertaining to such Investment
Property at any meeting of shareholders of the relevant Issuer or Issuers or
otherwise and (y) any and all rights of conversion, exchange and subscription
and any other rights, privileges or options pertaining to such Investment
Property as if it were the absolute owner thereof (including, without
limitation, the right to exchange at its discretion any and all of the
Investment Property upon the merger, consolidation, reorganization,
recapitalization or other fundamental change in the corporate or other
organizational structure of any Issuer, or upon the exercise by any Grantor or
the Collateral Agent of any right, privilege or option pertaining to such
Investment Property, and in connection therewith, the right to deposit and
deliver any and all of the Investment Property with any committee, depositary,
transfer agent, registrar or other designated agency upon such terms and
conditions as the Collateral Agent may determine), all without liability except
to account for property actually received by it, but the Collateral Agent shall
have no duty
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to any Grantor to exercise any such right, privilege or option and shall not be
responsible for any failure to do so or delay in so doing.
(c) Each Grantor hereby authorizes and instructs each Issuer of any
Investment Property pledged by such Grantor hereunder to (i) comply with any
instruction received by it from the Collateral Agent in writing that (x) states
that an Event of Default has occurred and is continuing and (y) is otherwise in
accordance with the terms of this Agreement, without any other or further
instructions from such Grantor, and each Grantor agrees that each Issuer shall
be fully protected in so complying, and (ii) unless otherwise expressly
permitted hereby, pay any dividends or other payments with respect to the
Investment Property directly to the Collateral Agent.
6.4 Proceeds to be Turned Over To Collateral Agent. In addition to
the rights of the Collateral Agent and the other Secured Parties specified in
Section 6.1 with respect to payments of Receivables constituting Collateral
hereunder, if an Event of Default shall occur and be continuing, all Proceeds
received by any Grantor consisting of cash, checks and other near-cash items
shall be held by such Grantor in trust for the Collateral Agent and the other
Secured Parties, segregated from other funds of such Grantor, and shall,
forthwith upon receipt by such Grantor, be turned over to the Collateral Agent
in the exact form received by such Grantor (duly indorsed by such Grantor to the
Collateral Agent, if required). All Proceeds received by the Collateral Agent
hereunder shall be held by the Collateral Agent in a Collateral Account
maintained under its sole dominion and control. All Proceeds while held by the
Collateral Agent in a Collateral Account (or by such Grantor in trust for the
Collateral Agent and the other Secured Parties) shall continue to be held as
collateral security for all the Obligations and shall not constitute payment
thereof until applied as provided in Section 6.5.
6.5 Application of Proceeds. At such intervals as may be agreed upon
by the Borrower and the Collateral Agent, or, if an Event of Default shall have
occurred and be continuing, at any time at the Collateral Agent's election, the
Collateral Agent may apply all or any part of Proceeds constituting Collateral,
whether or not held in any Collateral Account, in payment of the Obligations in
the order specified in the Collateral Sharing Agreement.
6.6 Code and Other Remedies. If an Event of Default shall occur and
be continuing, the Collateral Agent, on behalf of the Secured Parties, may
exercise, in addition to all other rights and remedies granted to them in this
Agreement and in any other instrument or agreement securing, evidencing or
relating to the Obligations, all rights and remedies of a secured party under
the New York UCC or any other applicable law. Without limiting the generality of
the foregoing, the Collateral Agent, without demand of performance or other
demand, presentment, protest, advertisement or notice of any kind (except any
notice required by law referred to below) to or upon any Grantor or any other
Person (all and each of which demands, defenses, advertisements and notices are
hereby waived), may in such circumstances forthwith collect, receive,
appropriate and realize upon the Collateral, or any part thereof, and/or may
forthwith sell, lease, assign, give option or options to purchase, or otherwise
dispose of and deliver the Collateral or any part thereof (or contract to do any
of the foregoing), in one or more parcels at public or private sale or sales, at
any exchange, broker's board or office of the Collateral Agent or any other
Secured Party or elsewhere upon such terms and conditions as it may deem
advisable and at such prices as it may deem best, for cash or on credit or for
future delivery without assumption of any credit risk. The Collateral Agent or
any other Secured Party shall have the right upon any such public sale or sales,
and, to the extent permitted by law, upon any such private sale or sales, to
purchase the whole or any part of the Collateral so sold, free of any right or
equity of redemption in any Grantor, which right or equity is hereby waived and
released. Each Grantor further agrees, at the Collateral Agent's request, to
assemble the Collateral and make it available to the Collateral Agent at places
which the Collateral Agent shall reasonably select, whether at such Grantor's
premises or elsewhere. Notwithstanding the foregoing, it is understood and
agreed that any assignment of any Patent to the Collateral Agent or any other
Person
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shall be subject to any licenses (and the rights granted therein) existing at
the time of such assignment with respect to such Patent. The Collateral Agent
shall apply the net proceeds of any action taken by it pursuant to this Section
6.6, after deducting all reasonable costs and expenses of every kind incurred in
connection therewith or incidental to the care or safekeeping of any of the
Collateral or in any way relating to the Collateral or the rights of the
Collateral Agent and the other Secured Parties hereunder, including, without
limitation, reasonable attorneys' fees and disbursements, to the payment in
whole or in part of the Obligations, in the order specified in the Collateral
Sharing Agreement, and only after such application and after the payment by the
Collateral Agent of any other amount required by any provision of law,
including, without limitation, Section 9-504(1)(c) of the New York UCC, need the
Collateral Agent account for the surplus, if any, to any Grantor. To the extent
permitted by applicable law, each Grantor waives all claims, damages and demands
it may acquire against the Collateral Agent or any other Secured Party arising
out of the exercise by them of any rights hereunder. If any notice of a proposed
sale or other disposition of Collateral shall be required by law, such notice
shall be deemed reasonable and proper if given at least 10 days before such sale
or other disposition.
6.7 Registration Rights. (a) If the Collateral Agent shall determine
to exercise its right to sell any or all of the Pledged Stock pursuant to
Section 6.6, and if in the opinion of the Collateral Agent it is necessary or
advisable to have the Pledged Stock, or that portion thereof to be sold,
registered under the provisions of the Securities Act, the relevant Grantor will
cause the Issuer thereof to (i) execute and deliver, and cause the directors and
officers of such Issuer to execute and deliver, all such instruments and
documents, and do or cause to be done all such other acts as may be, in the
opinion of the Collateral Agent, necessary or advisable to register the Pledged
Stock, or that portion thereof to be sold, under the provisions of the
Securities Act, (ii) use its best efforts to cause the registration statement
relating thereto to become effective and to remain effective for a period of one
year from the date of the first public offering of the Pledged Stock, or that
portion thereof to be sold, and (iii) make all amendments thereto and/or to the
related prospectus which, in the opinion of the Collateral Agent, are necessary
or advisable, all in conformity with the requirements of the Securities Act and
the rules and regulations of the Securities and Exchange Commission applicable
thereto. Each Grantor agrees to cause such Issuer to comply with the provisions
of the securities or "Blue Sky" laws of any and all jurisdictions which the
Collateral Agent shall designate and to make available to its security holders,
as soon as practicable, an earnings statement (which need not be audited) which
will satisfy the provisions of Section 11(a) of the Securities Act.
(b) Each Grantor recognizes that the Collateral Agent may be unable
to effect a public sale of any or all the Pledged Stock, by reason of certain
prohibitions contained in the Securities Act and applicable state securities
laws or otherwise, and may be compelled to resort to one or more private sales
thereof to a restricted group of purchasers which will be obliged to agree,
among other things, to acquire such securities for their own account for
investment and not with a view to the distribution or resale thereof. Each
Grantor acknowledges and agrees that any such private sale may result in prices
and other terms less favorable than if such sale were a public sale and,
notwithstanding such circumstances, agrees that any such private sale shall be
deemed to have been made in a commercially reasonable manner. The Collateral
Agent shall be under no obligation to delay a sale of any of the Pledged Stock
for the period of time necessary to permit the Issuer thereof to register such
securities for public sale under the Securities Act, or under applicable state
securities laws, even if such Issuer would agree to do so.
(c) Each Grantor agrees to use its best efforts to do or cause to be
done all such other acts as may be necessary to make such sale or sales of all
or any portion of the Pledged Stock pursuant to this Section 6.7 valid and
binding and in compliance with any and all other applicable Requirements of Law.
Each Grantor further agrees that a breach of any of the covenants contained in
this Section 6.7 will cause irreparable injury to the Collateral Agent and the
other Secured Parties, that the Collateral Agent and the other Secured Parties
have no adequate remedy at law in respect of such breach and, as a consequence,
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that each and every covenant contained in this Section 6.7 shall be specifically
enforceable against such Grantor, and such Grantor hereby waives and agrees not
to assert any defenses against an action for specific performance of such
covenants except for a defense that no Event of Default has occurred under any
Credit Agreement.
6.8 Waiver; Deficiency. Each Grantor waives and agrees not to assert
any rights or privileges which it may acquire under Section 9-112 of the New
York UCC. Each Grantor shall remain liable for any deficiency if the proceeds of
any sale or other disposition of the Collateral are insufficient to pay its
Obligations and the fees and disbursements of any attorneys employed by the
Collateral Agent or any other Secured Party to collect such deficiency.
SECTION 7. THE COLLATERAL AGENT
7.1 Collateral Agent's Appointment as Attorney-in-Fact, etc. (a)
Each Grantor hereby irrevocably constitutes and appoints the Collateral Agent
and any officer or agent thereof, with full power of substitution, as its true
and lawful attorney-in-fact with full irrevocable power and authority in the
place and stead of such Grantor and in the name of such Grantor or in its own
name, for the purpose of carrying out the terms of this Agreement, to take any
and all appropriate action and to execute any and all documents and instruments
which may be necessary or desirable to accomplish the purposes of this
Agreement, and, without limiting the generality of the foregoing, each Grantor
hereby gives the Collateral Agent the power and right, on behalf of such
Grantor, without notice to or assent by such Grantor, to do any or all of the
following:
(i) in the name of such Grantor or its own name, or otherwise, take
possession of and indorse and collect any checks, drafts, notes, acceptances
or other instruments for the payment of moneys due under any Receivable
constituting Collateral hereunder or with respect to any other Collateral and
file any claim or take any other action or proceeding in any court of law or
equity or otherwise deemed appropriate by the Collateral Agent for the
purpose of collecting any and all such moneys due under any such Receivable
or with respect to any other Collateral whenever payable;
(ii) in the case of any Intellectual Property referred to in Section
4.8 or 5.8, execute and deliver, and have recorded, any and all agreements,
instruments, documents and papers as the Collateral Agent may request to
evidence the Collateral Agent's and the other Secured Parties' security
interest in such Intellectual Property and the goodwill and general
intangibles of such Grantor relating thereto or represented thereby;
(iii) pay or discharge taxes and Liens levied or placed on or
threatened against the Collateral, effect any repairs or any insurance called
for by the terms of this Agreement and pay all or any part of the premiums
therefor and the costs thereof;
(iv) execute, in connection with any sale provided for in Section 6.6
or 6.7, any indorsements, assignments or other instruments of conveyance or
transfer with respect to the Collateral; and
(v) (1) direct any party liable for any payment under any of the
Collateral to make payment of any and all moneys due or to become due
thereunder directly to the Collateral Agent or as the Collateral Agent shall
direct; (2) ask or demand for, collect, and receive payment of and receipt
for, any and all moneys, claims and other amounts due or to become due at any
time in respect of or arising out of any Collateral; (3) sign and indorse any
invoices, freight or express bills, bills of lading, storage or warehouse
receipts, drafts against debtors, assignments, verifications, notices and
other documents in connection with any of the Collateral; (4) commence and
prosecute any suits, actions or
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proceedings at law or in equity in any court of competent jurisdiction to
collect the Collateral or any portion thereof and to enforce any other right
in respect of any Collateral; (5) defend any suit, action or proceeding
brought against such Grantor with respect to any Collateral; (6) settle,
compromise or adjust any such suit, action or proceeding and, in connection
therewith, give such discharges or releases as the Collateral Agent may deem
appropriate; (7) subject to any licenses (and the rights granted therein)
existing at the time of such assignment, assign any Copyright, Patent or
Trademark (along with the goodwill of the business to which any such
Copyright, Patent or Trademark pertains), throughout the world for such term
or terms, on such conditions, and in such manner, as the Collateral Agent
shall in its sole discretion determine; and (8) generally, sell, transfer,
pledge and make any agreement with respect to or otherwise deal with any of
the Collateral as fully and completely as though the Collateral Agent were
the absolute owner thereof for all purposes, and do, at the Collateral
Agent's option and such Grantor's expense, at any time, or from time to time,
all acts and things which the Collateral Agent deems necessary to protect,
preserve or realize upon the Collateral and the Collateral Agent's and the
other Secured Parties' security interests therein and to effect the intent of
this Agreement, all as fully and effectively as such Grantor might do.
Anything in this Section 7.1(a) to the contrary notwithstanding, the
Collateral Agent agrees that it will not exercise any rights under the power of
attorney provided for in this Section 7.1(a) unless an Event of Default shall
have occurred and be continuing.
(b) If any Grantor fails to perform or comply with any of its
agreements contained herein after notice of its failure to do so, the Collateral
Agent, at its option, but without any obligation so to do, may perform or
comply, or otherwise cause performance or compliance, with such agreement.
(c) The expenses of the Collateral Agent incurred in connection with
actions undertaken as provided in this Section 7.1, together with interest
thereon at a rate per annum equal to the highest rate per annum at which
interest would then be payable on any category of past due ABR Loans under the
Credit Agreements, from the date of payment by the Collateral Agent to the date
reimbursed by the relevant Grantor, shall be payable by such Grantor to the
Collateral Agent on demand.
(d) Each Grantor hereby ratifies all that said attorneys shall
lawfully do or cause to be done by virtue hereof. All powers, authorizations and
agencies contained in this Agreement are coupled with an interest and are
irrevocable until this Agreement is terminated and the security interests
created hereby are released.
7.2 Duty of Collateral Agent. The Collateral Agent's sole duty with
respect to the custody, safekeeping and physical preservation of the Collateral
in its possession, under Section 9-207 of the New York UCC or otherwise, shall
be to deal with it in the same manner as the Collateral Agent deals with similar
property for its own account. Neither the Collateral Agent, any other Secured
Party nor any of their respective officers, directors, employees or agents shall
be liable for failure to demand, collect or realize upon any of the Collateral
or for any delay in doing so or shall be under any obligation to sell or
otherwise dispose of any Collateral upon the request of any Grantor or any other
Person or to take any other action whatsoever with regard to the Collateral or
any part thereof. The powers conferred on the Collateral Agent and the other
Secured Parties hereunder are solely to protect the Collateral Agent's and the
other Secured Parties' interests in the Collateral and shall not impose any duty
upon the Collateral Agent or any other Secured Party to exercise any such
powers. The Collateral Agent and the other Secured Parties shall be accountable
only for amounts that they actually receive as a result of the exercise of such
powers, and neither they nor any of their officers, directors, employees or
agents shall be responsible to any Grantor for any act or failure to act
hereunder, except for their own gross negligence or willful misconduct.
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7.3 Execution of Financing Statements. Pursuant to Section 9-402 of
the New York UCC and any other applicable law, each Grantor authorizes the
Collateral Agent to file or record financing statements and other filing or
recording documents or instruments with respect to the Collateral without the
signature of such Grantor in such form and in such offices as the Collateral
Agent determines appropriate to perfect the security interests of the Collateral
Agent under this Agreement. A photographic or other reproduction of this
Agreement shall be sufficient as a financing statement or other filing or
recording document or instrument for filing or recording in any jurisdiction.
7.4 Authority of Collateral Agent. Each Grantor acknowledges that
the rights and responsibilities of the Collateral Agent under this Agreement
with respect to any action taken by the Collateral Agent or the exercise or
non-exercise by the Collateral Agent of any option, voting right, request,
judgment or other right or remedy provided for herein or resulting or arising
out of this Agreement shall, as between the Collateral Agent and the other
Secured Parties, be governed by the applicable Credit Agreement, the Collateral
Sharing Agreement and such other agreements with respect thereto as may exist
from time to time among them, but, as between the Collateral Agent and the
Grantors, the Collateral Agent shall be conclusively presumed to be acting as
agent for the Secured Parties with full and valid authority so to act or refrain
from acting, and no Grantor shall be under any obligation, or entitlement, to
make any inquiry respecting such authority.
SECTION 8. MISCELLANEOUS
8.1 Amendments in Writing. None of the terms or provisions of this
Agreement may be waived, amended, supplemented or otherwise modified except in
accordance with Section 9.07 of each of the Credit Agreements.
8.2 Notices. All notices, requests and demands to or upon the
Collateral Agent or any Grantor hereunder shall be effected in the manner
provided for in Section 9.01 of each of the Credit Agreements; provided that (a)
any such notice, request or demand to or upon the Collateral Agent shall be
addressed to it at One Chase Xxxxxxxxx Xxxxx, Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention of Xxxxxxx Xxxxxx (Facsimile No. 212-552-5700) and (b) any such
notice, request or demand to or upon any Guarantor shall be addressed to such
Guarantor at its notice address set forth on Schedule 1.
8.3 No Waiver by Course of Conduct; Cumulative Remedies. Neither the
Collateral Agent nor any other Secured Party shall by any act (except by a
written instrument pursuant to Section 8.1), delay, indulgence, omission or
otherwise be deemed to have waived any right or remedy hereunder or to have
acquiesced in any Default or Event of Default. No failure to exercise, nor any
delay in exercising, on the part of the Collateral Agent or any other Secured
Party, any right, power or privilege hereunder shall operate as a waiver
thereof. No single or partial exercise of any right, power or privilege
hereunder shall preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. A waiver by the Collateral Agent or any
other Secured Party of any right or remedy hereunder on any one occasion shall
not be construed as a bar to any right or remedy which the Collateral Agent or
such Lender would otherwise have on any future occasion. The rights and remedies
herein provided are cumulative, may be exercised singly or concurrently and are
not exclusive of any other rights or remedies provided by law.
8.4 Enforcement Expenses; Indemnification. (a) Each Guarantor agrees
to pay or reimburse the Collateral Agent for all its costs and expenses incurred
in collecting against such Guarantor under the guarantee contained in Section 2
or otherwise enforcing or preserving any rights under this Agreement and the
other Loan Documents to which such Guarantor is a party, including, without
limitation, the fees and disbursements of counsel to the Collateral Agent.
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(b) Each Guarantor agrees to pay, and to save the Collateral Agent
harmless from, any and all liabilities with respect to, or resulting from any
delay in paying, any and all stamp, excise, sales or other taxes which may be
payable or determined to be payable with respect to any of the Collateral or in
connection with any of the transactions contemplated by this Agreement.
(c) Each Guarantor agrees to pay, and to save the Collateral Agent
harmless from, any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever with respect to the execution, delivery, enforcement,
performance and administration of this Agreement to the extent the Borrower
would be required to do so pursuant to Section 9.05 of any of the Credit
Agreements.
(d) The agreements in this Section 8.4 shall survive repayment of
the Obligations and all other amounts payable under the Credit Agreements and
the other Loan Documents.
8.5 Successors and Assigns. This Agreement shall be binding upon the
successors and assigns of each Grantor and shall inure to the benefit of the
Collateral Agent and the other Secured Parties and their successors and assigns;
provided that no Grantor may assign, transfer or delegate any of its rights or
obligations under this Agreement without the prior written consent of the
Collateral Agent.
8.6 Set-Off. If an Event of Default shall have occurred and be
continuing under clause (a) or (b) of Article VII of any of the Credit
Agreements, or if any Loans shall become due and payable pursuant to Article VII
of any of the Credit Agreements, each Grantor hereby irrevocably authorizes the
Collateral Agent, each Lender and each of the Lenders' respective Affiliates, 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 the Collateral Agent, such Lender or Affiliate to or for the credit or the
account of such Grantor against any of and all the obligations and liabilities
of such Grantor now or hereafter existing under this Agreement or any other Loan
Document held by the Collateral Agent or such Lender, irrespective of whether or
not the Collateral Agent or such Lender shall have made any demand under this
Agreement or such other Loan Document and although such obligations, liabilities
or claims may be contingent or unmatured. The rights of the Collateral Agent and
each Lender under this Section are in addition to other rights and remedies
(including other rights of setoff) which the Collateral Agent or such Lender may
have.
8.7 Counterparts. This Agreement may be executed by one or more of
the parties to this Agreement on any number of separate counterparts (including
by telecopy), and all of said counterparts taken together shall be deemed to
constitute one and the same instrument.
8.8 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
8.9 Section Headings. The Section headings used in this Agreement
are for convenience of reference only and are not to affect the construction
hereof or be taken into consideration in the interpretation hereof.
8.10 Integration. This Agreement and the other Loan Documents
represent the agreement of the Grantors, the Collateral Agent and the other
Secured Parties with respect to the subject matter hereof and thereof, and there
are no promises, undertakings, representations or warranties by the Collateral
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Agent or any other Secured Party relative to subject matter hereof and thereof
not expressly set forth or referred to herein or in the other Loan Documents.
8.11 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
8.12 Submission To Jurisdiction; Waivers. Each Grantor hereby
irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to which it
is a party, or for recognition and enforcement of any judgment in respect
thereof, to the non-exclusive general jurisdiction of the courts of the State of
New York, the courts of the United States of America for the Southern District
of New York, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in
such courts and waives any objection that it may now or hereafter have to the
venue of any such action or proceeding in any such court or that such action or
proceeding was brought in an inconvenient court and agrees not to plead or claim
the same;
(c) agrees that service of process in any such action or proceeding
may be effected by mailing a copy thereof by registered or certified mail (or
any substantially similar form of mail), postage prepaid, to such Grantor at its
address referred to in Section 8.2 or at such other address of which the
Collateral 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.
8.13 Acknowledgements. Each Grantor hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Loan Documents to which it is a party;
(b) neither the Collateral Agent nor any other Secured Party has any
fiduciary relationship with or duty to any Grantor arising out of or in
connection with this Agreement or any of the other Loan Documents, and the
relationship between the Grantors, on the one hand, and the Collateral Agent and
the other Secured Parties, on the other hand, in connection herewith or
therewith is solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions contemplated hereby
among Secured Parties or among the Grantors and the Secured Parties.
8.14 Additional Grantors; Additional External Sharing Debt. (a) Each
Subsidiary of the Borrower that is required to become a party to this Agreement
pursuant to Section 5.11 of any of the Credit Agreements shall become a Grantor
for all purposes of this Agreement upon execution and
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delivery by such Subsidiary of an Assumption Agreement in the form of Annex 1
hereto. For the avoidance of doubt, it is understood and agreed that in the
event that Agere or any of its Subsidiaries is required to enter into this
Agreement pursuant to Section 5.11 of any of the Credit Agreements, the Lien on
any Collateral of Agere and its Subsidiaries shall, subject to the limitations
set forth in the last sentence of Section 3, secure, first, the Obligations
under the Lucent Assumable Credit Agreement and, second, all other Obligations
(b) The Borrower may, to the extent permitted by the Credit
Agreements, designate additional Indebtedness, liabilities and other obligations
(including, without limitation, incremental increases in the aggregate principal
amount of Indebtedness constituting External Sharing Debt) as External Sharing
Debt; provided that, with respect to each such item of additional External
Sharing Debt, the Borrower shall have delivered to the Collateral Agent a
completed and executed External Sharing Debt Supplement. It is understood that
after an item of External Sharing Debt is designated as such on Schedule 7 or in
an External Sharing Debt Supplement accepted by the Collateral Agent, (i) the
holder of such External Sharing Debt shall be entitled to the benefits of this
Agreement and (ii) it shall not be necessary to designate increases in the
amount outstanding in respect of such External Sharing Debt unless the amount so
outstanding is to exceed the maximum amount thereof specified on Schedule 7 or
in the External Sharing Debt Supplement relating thereto, as applicable.
8.15 Releases. (a) At such time as the Borrower Liquidated
Obligations shall have been paid in full and the Commitments have been
terminated, the Collateral shall be released from the Liens created hereby, and
this Agreement and all obligations (other than those expressly stated to survive
such termination) of the Collateral Agent and each Grantor hereunder shall
terminate, all without delivery of any instrument or performance of any act by
any party, and all rights to the Collateral shall revert to the Grantors. At the
request and sole expense of any Grantor following any such termination, the
Collateral Agent shall execute and deliver to such Grantor such documents as
such Grantor shall reasonably request to evidence such termination.
(b) If any of the Collateral shall be Disposed of by any Grantor in
a transaction permitted by the Credit Agreements or if any of the Collateral is
the subject of any CMO Transaction permitted by the Credit Agreements, then such
Collateral shall thereupon be released from the Liens created hereby. A
Subsidiary Guarantor shall be released from its obligations hereunder in the
event that all the Capital Stock of such Subsidiary Guarantor shall be Disposed
of in a transaction permitted by the Credit Agreements or in the event that such
Subsidiary Guarantor ceases to be a Subsidiary. The Borrower shall notify the
Collateral Agent if any Subsidiary Guarantor is so released and such notice
shall identify the relevant Subsidiary Guarantor and the terms of the
Disposition in reasonable detail, including the price thereof and any expenses
in connection therewith, together with a certification by the Borrower stating
that such transaction is in compliance with the Credit Agreements and the other
Loan Documents.
(c) The Capital Stock of Agere pledged hereunder shall at the
Borrower's request be released at any time on or after the date on which Agere
has assumed at least $2,500,000,000 in aggregate principal amount of
Indebtedness of Borrower (including, in any event, all Indebtedness under the
Lucent Assumable Credit Agreement), provided that, at the time of such release,
no Event of Default has occurred and is continuing (including pursuant to
Section 6.01) (as certified by the Borrower to the Administrative Agent).
(d) The Collateral shall automatically be released from the Liens
created hereby, and all rights to the Collateral shall revert to the Grantors,
on the first date after the date hereof 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
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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); provided, however, that notwithstanding any such release,
the Guarantees created hereby shall remain in full force and effect.
(e) If Agere and its Subsidiaries have been required to enter into
this Agreement pursuant to Section 5.11 of any of the Credit Agreements, then,
on the date of the Agere IPO, the Collateral provided by Agere and its
Subsidiaries shall automatically be released from the Liens created hereby and
all of their respective obligations hereunder shall automatically be terminated.
At the request of the Borrower or Agere, and at the sole expense of the
Borrower, following any such termination, the Collateral Agent shall execute and
deliver to the Borrower or Agere such documents as the Borrower or Agere shall
reasonably request to evidence such termination.
(f) The Collateral Agent will, at any time, upon the written
instruction of the Administrative Agent, at the sole expense of the relevant
Grantor, execute and deliver to the relevant Grantor all releases or other
documents reasonably necessary or desirable for the release of the Liens created
hereby on the Collateral specified by the Administrative Agent in such
instruction.
(g) At the request and sole expense of any Grantor following any
release of Collateral under this Section, the Collateral Agent shall deliver to
such Grantor such released Collateral held by the Collateral Agent hereunder,
and execute and deliver to such Grantor such documents as such Grantor shall
reasonably request to evidence such release.
(h) By acceptance of the benefits hereof, each Secured Party
acknowledges and consents to the provisions of this Section 8.15, agrees that
the Collateral Agent shall incur no liability whatsoever to any Secured Party
for any release effected by the Collateral Agent in accordance with this Section
8.15 and agrees that the Administrative Agent shall incur no liability
whatsoever to any Secured Party for any release directed or consented to by it
in accordance with the Credit Agreement.
8.16 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.
8.17 Collateral Sharing Agreement. By becoming a party to this
Agreement, each Grantor agrees to be bound by the terms of the Collateral
Sharing Agreement and, without limiting the generality of the foregoing,
expressly agrees that all obligations and liabilities of a Grantor thereunder
apply to such Grantor with the same force and effect as if such Grantor were a
signatory thereto.
8.18 Judgment Currency. (a) If for the purpose of obtaining judgment
in any court it is necessary to convert a sum due hereunder in one currency into
another currency, the parties hereto agree, to the fullest extent that they may
effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures the Collateral Agent could purchase
the first currency with such other currency in the city in which it normally
conducts its foreign exchange operation for the first currency on the Business
Day preceding the day on which final judgment is given.
(b) The obligation of each Grantor in respect of any sum due from it
to the Collateral Agent hereunder shall, notwithstanding any judgment in a
currency (the "Judgment Currency") other than that in which such sum is
denominated in accordance with the applicable provisions of this Agreement (the
"Agreement Currency"), be discharged only to the extent that on the Business Day
following receipt by the Collateral Agent of any sum adjudged to be so due in
the Judgment Currency the Collateral Agent may in accordance with normal banking
procedures purchase the Agreement Currency with the Judgment
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Currency; if the amount of Agreement Currency so purchased is less than the sum
originally due to the Collateral Agent in the Agreement Currency, such Grantor
agrees notwithstanding any such judgment to indemnify the Collateral Agent
against such loss, and if the amount of the Agreement Currency so purchased
exceeds the sum originally due to the Collateral Agent, the Collateral Agent
agrees to remit to such Grantor such excess.
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IN WITNESS WHEREOF, each of the undersigned has caused this
Guarantee and Collateral Agreement to be duly executed and delivered as of the
date first above written.
LUCENT TECHNOLOGIES INC.
By:
-------------------------------------
Title:
LUCENT TECHNOLOGIES WORLD SERVICES
INC.
By:
-------------------------------------
Title:
INTERNATIONAL NETWORK SERVICES
By:
-------------------------------------
Title:
LUCENT TECHNOLOGIES INTERNATIONAL
INC.
By:
-------------------------------------
Title:
ASCEND COMMUNICATIONS, INC.
By:
-------------------------------------
Title:
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CHROMATIS NETWORKS INC.
By:
-------------------------------------
Title:
SPRING TIDE NETWORKS, INC.
By:
-------------------------------------
Title:
