AMENDED AND RESTATED COLLATERAL SHARING AGREEMENT Dated as of October 1, 2004 among LUCENT TECHNOLOGIES INC., THE GRANTORS REFERRED TO HEREIN and JPMORGAN CHASE BANK, as Collateral Agent
EXECUTION COPY
AMENDED AND RESTATED COLLATERAL SHARING AGREEMENT
Dated as of October 1, 2004
among
THE GRANTORS REFERRED TO HEREIN
and
JPMORGAN CHASE BANK,
as Collateral Agent
AMENDED AND RESTATED COLLATERAL SHARING AGREEMENT, dated as of October 1, 2004, among LUCENT TECHNOLOGIES INC., a Delaware corporation (the “Borrower”), the Grantors referred to in Section 6.11 hereof and JPMORGAN CHASE BANK, as collateral agent (in such capacity, the “Collateral Agent”).
(b) The following terms shall have the respective meanings set forth below:
“Agreement” shall mean this Amended and Restated Collateral Sharing Agreement as the same may from time to time be amended, supplemented or otherwise modified.
“Collateral” shall mean all property of the Credit Parties, now owned or hereafter acquired, upon which a Lien is purported to be created by any Security Document.
“Collateral Account” shall have the meaning assigned in Section 3.1.
“Collateral Agent” shall mean JPMorgan Chase Bank, in its capacity as collateral agent under the Security Documents and this Agreement, and any successor collateral agent appointed hereunder.
“Collateral Agent Fees” shall mean all fees, costs and expenses of the Collateral Agent of the types described in Sections 4.3, 4.4, 4.5 and 4.6.
“Collateral Estate” shall have the meaning assigned in Section 2.1(c).
“Distribution Date” shall mean each date fixed by the Collateral Agent in its sole discretion for a distribution to the Secured Parties of funds held in the Collateral Account.
“Exchange Rate” shall mean, at any date of determination thereof with respect to any currency, the spot rate of exchange for the conversion of such currency into Dollars determined by reference to such rate publishing service as is customarily utilized by the Collateral Agent for such purpose; provided that, to the extent that “Exchange Rate” is used herein to refer to an actual exchange by the Collateral Agent of one currency for another, “Exchange Rate” shall be deemed to refer to the rate at which such exchange actually occurs so long as such exchange is effected under customary market conditions. Any such determination of the Exchange Rate shall be conclusive absent manifest error.
“Mortgages” shall mean each of the mortgages and deeds of trust made by any Credit Party in favor of, or for the benefit of, the Collateral Agent for the benefit of the Secured Parties, substantially in the form of Exhibit D to the L/C Agreement or Exhibit C to the ESD Agreement (with such changes thereto as shall be advisable under the law of the jurisdiction in which such mortgage or deed of trust is to be recorded).
“Opinion of Counsel” shall mean an opinion in writing signed by legal counsel satisfactory to the Collateral Agent, who may be counsel regularly retained by the Collateral Agent.
“Permitted Investments” shall mean:
(i) direct obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by, the United States of America (or by any agency thereof to the extent such obligations are backed by the full faith and credit of the United States of America), in each case maturing within one year from the date of acquisition thereof;
(ii) investments in commercial paper maturing within 270 days from the date of acquisition thereof and having, at such date of acquisition, the highest credit rating obtainable from S&P or from Xxxxx’x;
(iii) investments in certificates of deposit, banker’s acceptances and time deposits maturing within 180 days from the date of acquisition thereof issued or guaranteed by or placed with, and money market deposit accounts issued or offered by, any domestic office of any commercial bank organized under the laws of the United States of America or any State thereof which has a combined capital and surplus and undivided profits of not less than $500,000,000;
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(iv) fully collateralized repurchase agreements with a term of not more than 30 days for securities described in clause (i) above and entered into with a financial institution satisfying the criteria described in clause (iii) above;
(v) in the case of any Foreign Subsidiary, (A) marketable direct obligations issued by, or unconditionally guaranteed by, the sovereign nation in which such Foreign Subsidiary is organized and is conducting business or issued by any agency of such sovereign nation and backed by the full faith and credit of such sovereign nation, in each case maturing within one year from the date of acquisition, so long as the indebtedness of such sovereign nation is rated at least A by S&P or A2 by Xxxxx’x or carries an equivalent rating from a comparable foreign rating agency or (B) investments of the type and maturity described in clauses (ii) through (iv) above of foreign obligors, which investments or obligors have ratings described in such clauses or equivalent ratings from comparable foreign rating agencies; and
(vi) investments made in compliance with the “Lucent Technologies Domestic Investment Guidelines”, dated November 21, 2003 (as may be amended to permit securities lending with lending agents rated at least A by S&P or A2 by Xxxxx’x).
“Proceeds” shall mean all “proceeds” as such term is defined in Section 9-102(a)(64) of the Uniform Commercial Code in effect in the State of New York on the date hereof.
“Restricted Collateral Obligations” shall mean, at any time, the Restricted Secured Indebtedness at such time and the External Sharing Debt that is not Borrowed Debt at such time.
“Security Documents” shall mean the collective reference to the Guarantee and Collateral Agreement, the Mortgages, the Control Agreements and all other security documents hereafter delivered to the Collateral Agent or the Administrative Agent granting a Lien on any property of any Person to secure the obligations and liabilities of any Credit Party pursuant to the Credit Agreements, the External Sharing Debt or any Guarantee in respect thereof. For the avoidance of doubt, the foregoing shall exclude any security document entered into in connection with any External Sharing Debt and that secures only the External Sharing Debt Obligations in respect of such External Sharing Debt.
“Sharing Acknowledgement” shall mean each acknowledgement delivered by the Borrower to the Collateral Agent with respect to each item of External Sharing Debt, executed by the holder of such External Sharing Debt and which sets forth a description of such External Sharing Debt, including the maximum amount thereof, the relevant currency and the contact information for the holder thereof.
“Unrestricted Collateral” shall mean all Collateral other than the Restricted Collateral.
(c) The words “hereof”, “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any
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particular provision of this Agreement, and Section references are to this Agreement unless otherwise specified.
SECTION 2.
AUTHORITY OF COLLATERAL AGENT
(b) By acceptance of the benefits of this Agreement and the Security Documents, each Secured Party shall be deemed irrevocably (i) to consent to the appointment of the Collateral Agent as its agent hereunder and under the Security Documents, (ii) to confirm that the Collateral Agent shall have the authority to act as the exclusive agent of such Secured Party for enforcement of any provisions of this Agreement and the Security Documents against any Grantor or the exercise of remedies hereunder or thereunder, (iii) to agree that such Secured Party shall not take any action to enforce any provisions of this Agreement or any Security Document against any Grantor or to exercise any remedy hereunder or thereunder and (iv) to agree to be bound by the terms of this Agreement and the Security Documents.
(c) The Collateral Agent hereby agrees that it holds and will hold all of its right, title and interest in, to and under the Security Documents and the Collateral granted to the Collateral Agent thereunder whether now existing or hereafter arising (all such right, title and interest being hereinafter referred to as the “Collateral Estate”) under and subject to the conditions set forth in this Agreement; and the Collateral Agent further agrees that it will hold such Collateral Estate for the benefit of the Secured Parties, for the enforcement of the payment of all Obligations and as security for the performance of and compliance with the covenants and conditions of this Agreement and each of the Security Documents, subject to the limits set forth in the Security Documents. It is understood and agreed that the Cash Collateral Agreement (as defined in the L/C Agreement) and the cash collateral agreement referred to in Section 2.06 of the ESD Agreement shall not constitute Security Documents and the cash collateral accounts established pursuant thereto and the deposits made therein and investments made from time to time with such deposits and earnings thereon shall not constitute Collateral. It is also understood and agreed that Collateral shall not include Excluded Foreign Collateral.
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from time to time, any of the Collateral under the judgment or decree of a court of competent jurisdiction.
(b) No delay or omission by the Collateral Agent to exercise any right, remedy or power hereunder or under any Security Document shall impair any such right, remedy or power or shall be construed to be a waiver thereof, and every right, power and remedy given by this Agreement or any Security Document to the Collateral Agent may be exercised from time to time and as often as may be deemed expedient by the Collateral Agent.
(c) If the Collateral Agent shall have proceeded to enforce any right, remedy or power under this Agreement or any Security Document and the proceeding for the enforcement thereof shall have been discontinued or abandoned for any reason or shall have been determined adversely to the Collateral Agent, then the Grantors, the Collateral Agent and the other Secured Parties shall, subject to any determination in such proceeding, severally and respectively be restored to their former positions and rights hereunder or thereunder with respect
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to the Collateral Estate and in all other respects, and thereafter all rights, remedies and powers of the Collateral Agent shall continue as though no such proceeding had been taken.
(d) All rights of action and of asserting claims upon or under this Agreement and the Security Documents may be enforced by the Collateral Agent without the possession of any instrument evidencing any Obligation or the production thereof at any trial or other proceeding relative thereto, and any suit or proceeding instituted by the Collateral Agent shall be, subject to Sections 5.4(c) and 5.9(b)(ii), brought in its name as Collateral Agent and any recovery of judgment shall be held as part of the Collateral Estate.
(b) Each Grantor, to the extent it may lawfully do so, on behalf of itself and all who may claim through or under it, including without limitation any and all subsequent creditors, vendees, assignees and lienors, waives and releases all rights to demand or to have any marshalling of the Collateral upon any sale, whether made under any power of sale granted herein or in any Security Document or pursuant to judicial proceedings or upon any foreclosure or any enforcement of this Agreement or any Security Document and consents and agrees that all the Collateral may at any such sale be offered and sold as an entirety.
(c) Each Grantor waives, to the extent permitted by applicable law, presentment, demand, protest and any notice of any kind (except notices explicitly required hereunder or under any Security Document) in connection with this Agreement and the Security Documents and any action taken by the Collateral Agent with respect to the Collateral.
2.7 Limitation on Collateral Agent’s Duty in Respect of Collateral. Beyond its duties as to the custody thereof expressly provided herein or in any Security Document and to account to the Secured Parties and the Grantors for moneys and other property received by it hereunder or under any Security Document, the Collateral Agent shall not have any duty to the Grantors or to the Secured Parties as to any Collateral in its possession or control or in the possession or control of any of its agents or nominees, or any income thereon or as to the preservation of rights against prior parties or any other rights pertaining thereto.
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and to be limited to the extent necessary so that they will not render this Agreement invalid, unenforceable in whole or in part or not entitled to be recorded, registered or filed under the provisions of any applicable law.
SECTION 3.
COLLATERAL ACCOUNT; DISTRIBUTIONS
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(b) All remaining moneys held by the Collateral Agent in the Collateral Account received by the Collateral Agent with respect to the Restricted Collateral shall, to the extent available for distribution (it being understood that the Collateral Agent may liquidate investments prior to maturity in order to make a distribution pursuant to this Section 3.4), be distributed (subject to the provisions of Section 3.5) by the Collateral Agent on each Distribution Date in the following order of priority (with such distributions being made by the Collateral Agent as provided in Section 3.4(e), and the applicable Administrative Agent shall be responsible for insuring that amounts distributed to it are distributed to its Banks in the order of priority set forth below):
First: to the Collateral Agent for any unpaid Collateral Agent Fees and then to any Secured Party which has theretofore advanced or paid any Collateral Agent Fees constituting administrative expenses allowable under Section 503(b) of the Bankruptcy Code, an amount equal to the amount thereof so advanced or paid by such Secured Party and for which such Secured Party has not been reimbursed prior to such Distribution Date, and, if such moneys shall be insufficient to pay such amounts in full, then ratably (without priority of any one over any other) to such Secured Parties in proportion to the amounts of such Collateral Agent Fees advanced by the respective Secured Parties and remaining unpaid on such Distribution Date;
Second: to any Secured Party which has theretofore advanced or paid any Collateral Agent Fees other than such administrative expenses, an amount equal to the amount thereof so advanced or paid by such Secured Party and for which such Secured Party has not been reimbursed prior to such Distribution Date, and, if such moneys shall be insufficient to pay such amounts in full, then ratably (without priority of any one over any other) to such Secured Parties in proportion to the amounts of such Collateral Agent Fees advanced by the respective Secured Parties and remaining unpaid on such Distribution Date;
Third: to the Secured Parties holding Restricted Collateral Obligations, amounts equal to all Restricted Collateral Obligations then owing to them (other than amounts described in clause Fourth below), whether or not then due and payable, and, if such moneys shall be insufficient to pay such amounts in full, then ratably (without priority of any one over any other) to such Secured Parties in proportion to the unpaid amounts thereof on such Distribution Date;
Fourth: to the Secured Parties holding Restricted Collateral Obligations, amounts equal to all costs and expenses of such Secured Parties and their representatives which constitute Restricted Collateral Obligations and are due and payable under the relevant instruments evidencing or agreements governing the Restricted Collateral Obligations as of such Distribution Date, and, if such moneys shall be insufficient to pay such amounts in full, then ratably to such Secured Parties in proportion to the unpaid amounts thereof on such Distribution Date; and
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Fifth: any surplus then remaining shall be paid to the Grantors or their successors or assigns or to whomsoever may be lawfully entitled to receive the same or as a court of competent jurisdiction may direct.
(c) All remaining moneys held by the Collateral Agent in the Collateral Account received by the Collateral Agent with respect to the Unrestricted Collateral shall, to the extent available for distribution (it being understood that the Collateral Agent may liquidate investments prior to maturity in order to make a distribution pursuant to this Section 3.4), be distributed (subject to the provisions of Section 3.5) by the Collateral Agent on each Distribution Date in the following order of priority (with such distributions being made by the Collateral Agent as provided in Section 3.4(e), and the applicable Administrative Agent shall be responsible for insuring that amounts distributed to it are distributed to its Banks in the order of priority set forth below):
First: to the Collateral Agent for any unpaid Collateral Agent Fees and then to any Secured Party which has theretofore advanced or paid any Collateral Agent Fees constituting administrative expenses allowable under Section 503(b) of the Bankruptcy Code, an amount equal to the amount thereof so advanced or paid by such Secured Party and for which such Secured Party has not been reimbursed prior to such Distribution Date, and, if such moneys shall be insufficient to pay such amounts in full, then ratably (without priority of any one over any other) to such Secured Parties in proportion to the amounts of such Collateral Agent Fees advanced by the respective Secured Parties and remaining unpaid on such Distribution Date;
Second: to any Secured Party which has theretofore advanced or paid any Collateral Agent Fees other than such administrative expenses, an amount equal to the amount thereof so advanced or paid by such Secured Party and for which such Secured Party has not been reimbursed prior to such Distribution Date, and, if such moneys shall be insufficient to pay such amounts in full, then ratably (without priority of any one over any other) to such Secured Parties in proportion to the amounts of such Collateral Agent Fees advanced by the respective Secured Parties and remaining unpaid on such Distribution Date;
Third: to the Secured Parties, amounts equal to all Obligations then owing to them (other than amounts described in clause Fourth below), whether or not then due and payable, and, if such moneys shall be insufficient to pay such amounts in full, then ratably (without priority of any one over any other) to the Secured Parties in proportion to the unpaid amounts thereof on such Distribution Date;
Fourth: to the Secured Parties, amounts equal to all costs and expenses of the Secured Parties and their representatives which constitute Obligations and are due and payable under the relevant instruments evidencing or agreements governing such Obligations as of such Distribution Date, and, if such moneys shall be insufficient to pay such amounts in full, then ratably to the Secured Parties in proportion to the unpaid amounts thereof on such Distribution Date; and
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Fifth: any surplus then remaining shall be paid to the Grantors or their successors or assigns or to whomsoever may be lawfully entitled to receive the same or as a court of competent jurisdiction may direct.
(d) The term “unpaid” as used in clause Third of each of Sections 3.4(b) and 3.4(c) refers:
(i) in the absence of a bankruptcy proceeding with respect to the relevant Grantor(s), to all amounts of Borrower Obligations or External Sharing Debt Obligations, as the case may be, outstanding as of a Distribution Date, and
(ii) during the pendency of a bankruptcy proceeding with respect to the relevant Grantor(s), to all amounts allowed by the bankruptcy court in respect of Borrower Obligations or External Sharing Debt Obligations, as the case may be, as a basis for distribution (including the face amount of any outstanding letter of credit and the estimated amounts, if any, allowed in respect of any other contingent claims),
to the extent that prior distributions have not been made in respect thereof.
(e) The Collateral Agent shall make all payments and distributions under this Section 3.4: (i) on account of Borrower Obligations under the L/C Agreement to the Administrative Agent for the L/C Agreement, pursuant to directions of such Administrative Agent, for re-distribution in accordance with the provisions of the L/C Agreement; (ii) on account of Borrower Obligations under the ESD Agreement to the ESD Bank entitled to such payments and distributions in accordance with the provisions of the ESD Agreement; and (iii) on account of any other External Sharing Debt Obligations to the relevant holder of such External Sharing Debt (as set forth in the Sharing Acknowledgement previously delivered with respect to such External Sharing Debt or, if more recently provided, the list delivered by the Borrower to the Collateral Agent pursuant to Section 4.2), pursuant to directions of such holder.
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Administrative Agent or any holder of External Sharing Debt of any amounts distributed to them.
SECTION 4.
AGREEMENTS WITH COLLATERAL AGENT
4.1 [Intentionally Omitted]
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this Section 4.3 shall survive the termination of the other provisions of this Agreement and the resignation or removal of the Collateral Agent hereunder with respect to such fees, costs and expenses incurred prior to such termination, resignation or removal.
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and apply any of the funds held by the Collateral Agent in the Collateral Account to cover such Collateral Agent Fees.
SECTION 5.
THE COLLATERAL AGENT
(b) The Collateral Agent shall not be required to ascertain or inquire as to the performance by the Grantors of any of the covenants or agreements contained herein, in any Security Document, in any other Credit Document or in any instrument evidencing or agreement governing External Sharing Debt. Whenever it is necessary, or in the opinion of the Collateral Agent advisable, for the Collateral Agent to ascertain the amount of Obligations then held by Secured Parties, the Collateral Agent may rely on a certificate of the relevant holder of External Sharing Debt, in the case of External Sharing Debt Obligations, or a certificate of the applicable Administrative Agent, in the case of Borrower Obligations, and, if such holder or such Administrative Agent shall not give such information to the Collateral Agent, such Person shall not be entitled to receive distributions hereunder (in which case distributions to those Persons who have supplied such information to the Collateral Agent shall be calculated by the Collateral
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Agent using, for those Persons who have not supplied such information, the list then most recently delivered by the Borrower pursuant to Section 4.2), and the amount so calculated to be distributed to the Person who fails to give such information shall be held in trust for such Person until such Person does supply such information to the Collateral Agent, whereupon on the next Distribution Date the amount distributable to such Person shall be recalculated using such information and distributed to it. Nothing in the preceding sentence shall prevent any Grantor from contesting any amounts claimed by any Secured Party in any certificate so supplied.
(c) The Collateral Agent shall be under no obligation or duty to take any action under this Agreement or any Security Document if taking such action (i) would subject the Collateral Agent to a tax in any jurisdiction where it is not then subject to a tax or (ii) would require the Collateral Agent to qualify to do business in any jurisdiction where it is not then so qualified, unless the Collateral Agent receives security or indemnity satisfactory to it against such tax (or equivalent liability), or any liability resulting from such qualification, in each case as results from the taking of such action under this Agreement or any Security Document.
(d) The Collateral Agent shall have the same rights with respect to any Obligation held by it as any other Secured Party and may exercise such rights as though it were not the Collateral Agent hereunder, and may accept deposits from, lend money to, and generally engage in any kind of banking or trust business with, any of the Grantors as if it were not the Collateral Agent.
(e) The Collateral Agent shall not be liable for any action taken or omitted to be taken in accordance with this Agreement or the Security Documents except for its own gross negligence or willful misconduct.
(b) The Collateral Agent may consult with counsel, and any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered by it hereunder or under any Security Document in accordance therewith. The Collateral Agent shall have the right at any time to seek instructions concerning the
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administration of this Agreement and the Security Documents from any court of competent jurisdiction.
(c) The Collateral Agent may rely, and shall be fully protected in acting, upon any resolution, statement, certificate, instrument, opinion, report, notice, request, consent, order, bond or other paper or document which it has no reason to believe to be other than genuine and to have been signed or presented by the proper party or parties or, in the case of cables, telecopies and telexes, to have been sent by the proper party or parties. In the absence of its own gross negligence or willful misconduct, the Collateral Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Collateral Agent and conforming to the requirements of this Agreement.
(d) The Collateral Agent shall not be under any obligation to exercise any of the rights or powers vested in the Collateral Agent by this Agreement and the Security Documents unless the Collateral Agent shall have been provided adequate security and indemnity against the costs, expenses and liabilities which may be incurred by the Collateral Agent, including such reasonable advances as may be requested by the Collateral Agent.
(e) Any Opinion of Counsel may be based, insofar as it relates to factual matters, upon a certificate of a responsible officer of the Borrower or representations made by a responsible officer of the Borrower in a writing filed with the Collateral Agent.
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the provisions of the preceding sentence are intended to induce the Banks and the Grantors to permit such Persons to be Secured Parties under this Agreement and under the Security Documents and are being relied upon by the Banks and the Grantors as consideration therefor.
(b) Except as herein otherwise expressly provided, the Collateral Agent shall not be under any obligation to take any action which is discretionary with the Collateral Agent under the provisions hereof or of any Security Document. The Collateral Agent shall make available for inspection and copying by the Administrative Agent each certificate or other paper furnished to the Collateral Agent by any of the Grantors under or in respect of this Agreement or any of the Collateral. The Collateral Agent shall in all cases be fully protected in acting or refraining from acting, and (except to the extent that the same would, in the Collateral Agent’s reasonable opinion, involve a risk of its violating any rule or regulation or expose it to any liability) shall act or refrain from acting, in accordance with written instructions signed by the Administrative Agent and any such instruction and any action or inaction pursuant thereto shall be binding on all the Secured Parties.
(c) No provision of this Agreement or of any Security Document shall be deemed to impose any duty or obligation on the Collateral Agent to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which the Collateral Agent shall be unqualified or incompetent, to perform any such act or acts or to exercise any such right, power, duty or obligation or if such performance or exercise would constitute doing business by the Collateral Agent in such jurisdiction or impose a tax on the Collateral Agent by reason thereof or to risk its own funds or otherwise incur any financial liability in the performance of its duties hereunder.
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of such appointment by the successor. The Collateral Agent shall be entitled to Collateral Agent Fees to the extent incurred or arising, or relating to events occurring, before such resignation or removal.
(b) If at any time the Collateral Agent shall resign or be removed or otherwise become incapable of acting, or if at any time a vacancy shall occur in the office of the Collateral Agent for any other cause, a successor Collateral Agent may be appointed by the Administrative Agent with the consent of the Borrower, which consent shall not be unreasonably withheld. The powers, duties, authority and title of the predecessor Collateral Agent shall be terminated and cancelled without procuring the resignation of such predecessor and without any other formality (except as may be required by applicable law) than appointment and designation of a successor in writing duly acknowledged and delivered to the predecessor and the Borrower. Such appointment and designation shall be full evidence of the right and authority to make the same and of all the facts therein recited, and this Agreement and the Security Documents shall vest in such successor, without any further act, deed or conveyance, all the estates, properties, rights, powers, duties, authority and title of its predecessor; but such predecessor shall, nevertheless, on the written request of the Administrative Agent, the Borrower, or the successor, execute and deliver an instrument transferring to such successor all the estates, properties, rights, powers, duties, authority and title of such predecessor hereunder and under the Security Documents and shall deliver all Collateral held by it or its agents to such successor. Should any deed, conveyance or other instrument in writing from any Grantor be required by any successor Collateral Agent for more fully and certainly vesting in such successor the estates, properties, rights, powers, duties, authority and title vested or intended to be vested in the predecessor Collateral Agent, any and all such deeds, conveyances and other instruments in writing shall, on request of such successor, be executed, acknowledged and delivered by such Grantor. If such Grantor shall not have executed and delivered any such deed, conveyance or other instrument within 10 days after it receives a written request from the successor Collateral Agent to do so, or if an Event of Default shall have occurred and be continuing, the predecessor Collateral Agent may execute the same on behalf of such Grantor. Such Grantor hereby appoints any predecessor Collateral Agent as its agent and attorney to act for it as provided in the next preceding sentence.
5.7 Status of Successor Collateral Agent. Every successor Collateral Agent appointed pursuant to Section 5.6 shall be a bank or trust company in good standing and having power to act as Collateral Agent hereunder, incorporated under the laws of the United States of America or any State thereof or the District of Columbia and having its principal office within the 48 contiguous States and shall also have capital, surplus and undivided profits of not less than $500,000,000, if there be such an institution with such capital, surplus and undivided profits willing, qualified and able to accept the powers and duties hereunder upon reasonable or customary terms.
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(b) Every separate collateral agent and every co-collateral agent, other than any successor Collateral Agent appointed pursuant to Section 5.6, shall, to the extent permitted by law, be appointed and act and be such, subject to the following provisions and conditions:
(i) all rights, powers, duties and obligations conferred upon the Collateral Agent in respect of the custody, control and management of moneys, papers or securities shall be exercised solely by the Collateral Agent or any agent appointed by the Collateral Agent;
(ii) all rights, powers, duties and obligations conferred or imposed upon the Collateral Agent hereunder and under the relevant Security Documents shall be conferred or imposed and exercised or performed by the Collateral Agent and such separate collateral agent or separate collateral agents or co-collateral agent or co-collateral agents, jointly, as shall be provided in the instrument appointing such separate collateral agent or separate collateral agents or co-collateral agent or co-collateral agents, except to the extent that under any law of any jurisdiction in which any particular act or acts are to be performed the Collateral Agent shall be incompetent or unqualified to perform such act or acts, or unless the performance of such act or acts would result in the imposition of any tax on the Collateral Agent which would not be imposed absent such joint act or acts, in which event such rights, powers, duties and obligations shall be exercised and performed by such separate collateral agent or separate collateral agents or co-collateral agent or co-collateral agents;
(iii) no power given hereby or by the relevant Security Documents to, or which is provided herein or therein may be exercised by, any such co-collateral agent or co-collateral agents or separate collateral agent or separate collateral agents shall be
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exercised hereunder or thereunder by such co-collateral agent or co-collateral agents or separate collateral agent or separate collateral agents except jointly with, or with the consent in writing of, the Collateral Agent, anything contained herein to the contrary notwithstanding;
(iv) no collateral agent hereunder shall be personally liable by reason of any act or omission of any other collateral agent hereunder; and
(v) the Borrower and the Collateral Agent, at any time by an instrument in writing executed by them jointly, may accept the resignation of or remove any such separate collateral agent or co-collateral agent and, in that case by an instrument in writing executed by them jointly, may appoint a successor to such separate collateral agent or co-collateral agent, as the case may be, anything contained herein to the contrary notwithstanding. If the Borrower shall not have joined in the execution of any such instrument within 10 days after it receives a written request from the Collateral Agent to do so, or if an Event of Default shall have occurred and be continuing, the Collateral Agent shall have the power to accept the resignation of or remove any such separate collateral agent or co-collateral agent and to appoint a successor without the concurrence of the Borrower, the Borrower hereby appointing the Collateral Agent its agent and attorney to act for it in such connection in such contingency. If the Collateral Agent shall have appointed a separate collateral agent or separate collateral agents or co-collateral agent or co-collateral agents as above provided, the Collateral Agent may at any time, by an instrument in writing, accept the resignation of or remove any such separate collateral agent or co-collateral agent and the successor to any such separate collateral agent or co-collateral agent shall be appointed by the Borrower and the Collateral Agent, or by the Collateral Agent alone pursuant to this Section 5.9(b).
5.10 Treatment of Payee or Indorsee by Collateral Agent; Representatives of Secured Parties. (a) The Collateral Agent may treat the registered holder or, if none, the payee or indorsee of any promissory note or debenture evidencing an Obligation as the absolute owner thereof for all purposes and shall not be affected by any notice to the contrary, whether such promissory note or debenture shall be past due or not.
(b) If requested by the Collateral Agent, any Person (other than the Administrative Agent) which shall be designated as the duly authorized representative of one or more Secured Parties to act as such in connection with any matters pertaining to this Agreement or the Collateral shall present to the Collateral Agent such documents, including, without limitation, Opinions of Counsel, as the Collateral Agent may reasonably require, in order to demonstrate to the Collateral Agent the authority of such Person to act as the representative of such Secured Parties (it being understood that the holders of Borrower Obligations are represented hereunder by the Administrative Agent). The authority of the Administrative Agent shall be demonstrated by their inclusion as such in the lists from time to time delivered pursuant to Section 4.2.
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6.7 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
(b) Upon the termination of the Collateral Agent’s security interest and the release of the Collateral in accordance with Section 6.9(a), the Collateral Agent will promptly, at the Borrower’s written request and expense, (i) execute and deliver to the Borrower such documents as the Borrower shall reasonably request to evidence the termination of such security interest or the release of the Collateral and (ii) deliver or cause to be delivered to the Grantors all property of the Grantors then held by the Collateral Agent or any agent thereof.
(c) This Agreement shall terminate when the security interest granted under the Security Documents has terminated and the Collateral has been released; provided that the provisions of Sections 4.3, 4.4, 4.5 and 4.6 shall not be affected by any such termination.
(d) 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 by the Security Documents on the Collateral specified by the Administrative Agent in such instruction. The Administrative Agent may give such instructions at any time, whether or not at any such time any or all of the Obligations are still outstanding.
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LUCENT TECHNOLOGIES INC. | ||||
By: | /s/ Xxxx Xxxxxxx | |||
Name: Xxxx Xxxxxxx | ||||
Title: Vice President & Treasurer | ||||
JPMORGAN CHASE BANK, | ||||
as Collateral Agent | ||||
By: | /s/ Xxxxx X. Xxxxxxx | |||
Name: Xxxxx X. Xxxxxxx | ||||
Title: Vice President |