AMENDMENT NO. 1 TO CERTAIN FOREIGN SUBSIDIARY GUARANTEES
AMENDMENT dated as of December 12, 2002 among NORTEL NETWORKS (IRELAND)
LIMITED ("NORTEL IRELAND"), NORTEL NETWORKS UK LIMITED ("NORTEL UK") AND NORTEL
NETWORKS (ASIA) LIMITED ("NORTEL ASIA", and, together with Nortel Ireland and
Nortel UK, the "GUARANTORS") and JPMORGAN CHASE BANK, as collateral agent (the
"COLLATERAL AGENT").
W I T N E S S E T H :
WHEREAS, Nortel Ireland and the Collateral Agent are parties to a
Foreign Subsidiary Guarantee dated as of April 4, 2002 (the "IRELAND
GUARANTEE");
WHEREAS, Nortel UK and the Collateral Agent are parties to a Foreign
Subsidiary Guarantee dated as of April 4, 2002 (the "UK GUARANTEE");
WHEREAS, Nortel Asia and the Collateral Agent are parties to a Foreign
Subsidiary Guarantee dated as of April 4, 2002 (the "ASIA GUARANTEE", and
together with the Ireland Guarantee and the UK Guarantee, the "FOREIGN
SUBSIDIARY GUARANTEES"); and
WHEREAS, each Guarantor wishes to amend the Foreign Subsidiary
Guarantee to which it is party in order to reflect certain amendments proposed
to be made to the U.S. Security Agreement and the Canadian Security Agreement as
more fully set forth below;
NOW, THEREFORE, the parties hereto agree as follows:
Section 1. Definitions; References. Unless otherwise specifically
defined herein, each term used herein which is defined in the Foreign Subsidiary
Guarantees shall have the meaning assigned to such term in the Foreign
Subsidiary Guarantees. Each reference to "hereof", "hereunder", "herein" and
"hereby" and each other similar reference and each reference to "this Guarantee"
and each other similar reference contained in each Foreign Subsidiary Guarantee
shall from and after the date hereof refer to such Foreign Subsidiary Guarantee
as amended hereby.
Section 2. Amendments to Definitions. (a) Section 1(a) of each Foreign
Subsidiary Guarantee is amended by adding the following definitions in
appropriate alphabetical order:
"EDC" means Export Development Canada.
"EDC FACILITY" means all facilities made available by EDC to support
obligations of one or more of NNL, its Subsidiaries and its affiliates arising
under or relating to letters of credit, letters of guarantee, indemnity
arrangements, performance bonds, surety bonds, receivables purchases and similar
instruments or arrangements issued or entered into for the benefit of one or
more of NNL, its Subsidiaries or its affiliates, including (x) any such facility
existing on the Security Amendment No. 1 Effective Date (as defined in Amendment
No. 1 to the U.S. Security Agreement) and (y) any master facility agreement with
respect to any such support entered into between EDC, NNL and any of NNL's
Subsidiaries or affiliates.
"5-YEAR AGREEMENTS" means the 0000 XXX 5-Year Agreement and the 2000
NNI 5-Year Agreement.
"SECURITY DOCUMENTS" means the U.S. Security Agreement, the Canadian
Security Agreement and all other supplemental or additional security agreements,
control agreements or similar instruments delivered pursuant to any Credit
Agreement or any other Security Document (other than any such agreement or
instrument with respect to real property).
"TERMINATED" or "TERMINATION" means, with respect to any 5-Year
Agreement, that (x) all commitments to extend credit under such 5-Year Agreement
shall have been terminated or expired, (y) all Non-Contingent Secured
Obligations (as defined in the U.S. Security Agreement) arising under such
5-Year Agreement shall have been paid in full and (z) no Contingent Secured
Obligation (as defined in the U.S. Security Agreement) shall remain outstanding
under such 5-Year Agreement other than any indemnity claims that have not been
asserted on or prior to the date on which the conditions set forth in clauses
(x) and (y) have been satisfied.
(b) Section 1(a) of each Foreign Subsidiary Guarantee is amended by
amending each of the following definitions to read in its entirety as follows:
"BANK TERMINATION DATE" has the meaning set forth in the U.S. Security
Agreement.
"BANKS" means the banks party to the 5-Year Agreements.
"CANADIAN SECURITY AGREEMENT" means the Canadian guarantee and security
agreement dated as of April 4, 2002 among NNL, NNI, the Subsidiaries party
thereto and JPMorgan Chase Bank, as Collateral Agent, as amended from time to
time.
"CREDIT AGREEMENTS" means the EDC Facility and, so long as the 5-Year
Agreements shall not have been Terminated, the 5-Year Agreements.
"DESIGNATED BANK DEBT" has the meanings set forth in the Canadian
Security Agreement and the U.S. Security Agreement.
"DESIGNATED CAPITAL MARKETS DEBT" has the meanings set forth in the
Canadian Security Agreement and the U.S. Security Agreement.
"DESIGNATED HEDGING AGREEMENT" has the meanings set forth in the
Canadian Security Agreement and the U.S. Security Agreement.
"DISCLOSURE MATERIALS" means the written materials so designated by the
Collateral Agent and NNL and provided to EDC and the Banks.
"EVENT OF DEFAULT" has the meaning set forth in the U.S. Security
Agreement.
"MATERIAL SUBSIDIARY" has the meaning set forth in the U.S. Security
Agreement.
"NNI CREDIT AGREEMENTS" means the 2000 NNI 5-Year Agreement.
"NNL CREDIT AGREEMENTS" means the 0000 XXX 5-Year Agreement.
"REQUIRED SECURED BANKS" has the meaning set forth in the U.S. Security
Agreement.
"SPECIFIED EVENT OF DEFAULT" has the meaning set forth in the U.S.
Security Agreement.
"TOTAL COLLATERAL" means all the "Collateral", "Mortgaged Property",
"Leasehold Mortgaged Property" and "Trust Property" as defined in any Security
Document, taken as a whole, and including in addition, for purposes of this
definition, "Foreign Subsidiary Guarantees" as defined in the U.S. Security
Agreement.
"U.S. SECURITY AGREEMENT" means the U.S. Guarantee and Security
Agreement dated as of April 4, 2002 among NNL, NNI, the Subsidiaries party
thereto and JPMorgan Chase Bank, as Collateral Agent, as amended from time to
time.
(c) Section 1(a) of each Foreign Subsidiary Guarantee is amended by
deleting the following definitions in their entirety: "Capital Markets Event",
"Drawdown Date", "Hedging Agreement", "Included Banks", "Refinancing",
"Refinancing Effective Date" and "Replacement Agreement".
(d) Section 1 of each Foreign Subsidiary Guarantee is amended by
deleting paragraph (b) thereof, and by re-lettering paragraph "(c)" as paragraph
"(b)".
Section 3. Amendment of Continuing Guarantee Provision. Section 9 of
each Foreign Subsidiary Guarantee is amended by deleting in its entirety the
last sentence thereof and inserting at the end of Section 9 the following new
sentence:
"The Guarantor may not transfer or assign any or all of its rights or
obligations hereunder without the prior written consent of EDC and, if the
5-Year Agreements shall not have been Terminated, the Banks."
Section 4. Amendments of Amendments and Waivers Provision. Section 14
of each Foreign Subsidiary Guarantee is deleted in its entirety and replaced
with the following new Section 14.
14. Amendments and Waivers. Neither this Guarantee nor any provision
hereof may be waived, amended, modified or terminated except pursuant to an
agreement or agreements in writing entered into by the parties hereto, with the
consent of the Required Secured Banks; provided that the Collateral Agent may
only (a) release all or any substantial part of the Total Collateral with the
prior written consent of EDC and, if the 5-Year Agreement shall not have been
Terminated, all the Banks, (b) amend this Guarantee so that the Guaranteed
Obligations excludes the obligations under any 5-Year Agreement with the prior
written consent of all Banks party to such 5-Year Agreement and (c) amend this
Guarantee so that the Guaranteed Obligations excludes any Designated Bank Debt
held by EDC with the prior written consent of EDC.
Section 5. Amendment of Additional Guaranteed Obligations Provision.
Section 15 of each of the Foreign Subsidiary Guarantees is amended by deleting
paragraphs (a) and (b) thereof in their entirety and replacing them with
"[intentionally omitted]".
Section 6. Amendment to Judgment Currency Provision. Section 16 of each
Foreign Subsidiary Guarantee is amended by replacing "Bank" wherever it occurs
therein with "Beneficiary".
Section 7. Representations of each Guarantor. Each Guarantor represents
and warrants that the representations and warranties set forth in Section 11 of
the Foreign Subsidiary Guarantee to which it is party will be true and correct
as of the effective date hereof.
Section 8. Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York.
Section 9. Counterparts; Effectiveness. (a) This Amendment may be
signed in any number of counterparts, each of which shall be an original, with
the same effect as if the signatures thereto and hereto were upon the same
instrument.
(b) This Amendment shall become effective as of the date on which:
(i) the Collateral Agent shall have received duly executed
counterparts hereof signed by each of the Guarantors and the Collateral
Agent (or, in the case of any party as to which an executed counterpart
shall not have been received, the Collateral Agent shall have received
telegraphic, telex or other written confirmation from such party of
execution of a counterpart hereof by such party); and
(ii) Amendment No.1 to the U.S. Security Agreement and Amendment
No.1 to the Canadian Security Agreement (each dated as of the date
hereof among NNL, NNI, JPMorgan Chase Bank, as Collateral Agent, the
Subsidiaries party thereto and the Banks party thereto) shall each have
become effective.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the date first above written.
Given under the common seal
of NORTEL NETWORKS
(IRELAND) LIMITED,
solely in its capacity
as Guarantor under the
Ireland Guarantee
By:
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By:
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NORTEL NETWORKS UK LIMITED, solely in its capacity
as Guarantor under the UK Guarantee
By:
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Name:
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By:
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NORTEL NETWORKS (ASIA) LIMITED, solely in its
capacity as Guarantor under the Asia Guarantee
By:
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Name:
Title:
By:
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JPMORGAN CHASE BANK, as
Collateral Agent
By:
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Name:
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