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Exhibit 10.1    
    


EXECUTION COPY  


AMENDED
AND RESTATED FIVE YEAR 


REVOLVING
CREDIT FACILITY AGREEMENT 


Dated
as of April 30, 2003 


among



AVAYA INC.,



as
Borrower, 


THE
LENDERS PARTY HERETO, 


CITIBANK,
N.A., 


as
Agent 


CITIGROUP
GLOBAL MARKETS INC., 


as
Lead Arranger, 


BANK
ONE, NA, JPMORGAN CHASE BANK and DEUTSCHE BANK AG NEW YORK BRANCH, 


as
Co-Syndication Agents and Co-Arrangers 


and 


COMMERZBANK
AG, NEW YORK BRANCH 


as
Co-Arranger 







 
 

Table of Contents    
    



	 
	 	Page

	ARTICLE I Definitions
	

SECTION 1.01. Defined Terms	
 	

4
	SECTION 1.02. Terms Generally	 	12
	

ARTICLE II The Credits
	

SECTION 2.01. Commitments	
 	

14
	SECTION 2.02. Loans	 	14
	SECTION 2.03. Borrowing Procedure	 	15
	SECTION 2.04. Conversion and Continuation of Loans	 	15
	SECTION 2.05. Fees	 	16
	SECTION 2.06. Repayment of Loans; Evidence of Debt	 	16
	SECTION 2.07. Interest on Loans	 	17
	SECTION 2.08. Default Interest	 	18
	SECTION 2.09. Alternate Rate of Interest	 	18
	SECTION 2.10. Termination and Reduction of Commitments	 	18
	SECTION 2.11. Prepayment	 	18
	SECTION 2.12. Reserve Requirements; Change in Circumstances	 	19
	SECTION 2.13. Change in Legality	 	20
	SECTION 2.14. Indemnity	 	20
	SECTION 2.15. Pro Rata Treatment	 	21
	SECTION 2.16. Sharing of Setoffs	 	21
	SECTION 2.17. Payments	 	22
	SECTION 2.18. Taxes	 	22
	SECTION 2.19. Mandatory Assignment; Commitment Termination	 	24
	

ARTICLE III Representations and Warranties
	

SECTION 3.01. Organization; Powers	
 	

25
	SECTION 3.02. Authorization	 	25
	SECTION 3.03. Enforceability	 	25
	SECTION 3.04. Governmental Approvals	 	25
	SECTION 3.05. Financial Statements	 	25
	SECTION 3.06. Litigation; Compliance with Laws	 	25
	SECTION 3.07. Federal Reserve Regulations	 	26
	SECTION 3.08. Investment Company Act; Public Utility Holding Company Act	 	26
	SECTION 3.09. Use of Proceeds	 	26
	SECTION 3.10. No Material Misstatements	 	26
	SECTION 3.11. Solvency	 	26
	

ARTICLE IV Conditions of Lending
	

SECTION 4.01. All Borrowings	
 	

27
	SECTION 4.02. Closing Date	 	27
	

ARTICLE V Covenants
	

SECTION 5.01. Existence	
 	

28
	SECTION 5.02. Financial Statements, Reports, Etc.	 	28
	SECTION 5.03. Maintaining Records	 	29
	SECTION 5.04. Use of Proceeds	 	29
	SECTION 5.05. Compliance with Laws, Etc.	 	29
	SECTION 5.06. Consolidations, Mergers, and Sales of Assets	 	29
	SECTION 5.07. Limitations on Liens	 	29
	 	 	 






 

	SECTION 5.08. Interest Coverage Ratio	 	30
	SECTION 5.09. Minimum EBITDA	 	31
	SECTION 5.10. Visitation Rights	 	31
	SECTION 5.11. Maintenance of Properties, Etc.	 	31
	SECTION 5.12. Maintenance of Insurance	 	31
	SECTION 5.13. Payment of Taxes, Etc.	 	31
	SECTION 5.14. Transactions with Affiliates	 	32
	SECTION 5.15. Covenant to Guarantee Obligations and Give Security	 	32
	SECTION 5.16. Further Assurances	 	33
	SECTION 5.17. Debt	 	33
	SECTION 5.18. Restricted Payments	 	34
	SECTION 5.19. Investments	 	35
	SECTION 5.20. Change in Nature of Business	 	36
	SECTION 5.21. Liquidity	 	36
	SECTION 5.22. Prepayments, Etc. of Debt	 	36
	

ARTICLE VI Events of Default
	

ARTICLE VII The Agent
	

ARTICLE VIII Miscellaneous
	

SECTION 8.01. Notices	
 	

41
	SECTION 8.02. Survival of Agreement	 	42
	SECTION 8.03. Binding Effect	 	42
	SECTION 8.04. Successors and Assigns	 	42
	SECTION 8.05. Expenses; Indemnity	 	44
	SECTION 8.06. Right of Setoff	 	45
	SECTION 8.07. Applicable Law	 	45
	SECTION 8.08. Waivers; Amendment	 	45
	SECTION 8.09. Entire Agreement	 	46
	SECTION 8.10. Severability	 	46
	SECTION 8.11. Counterparts	 	46
	SECTION 8.12. Headings	 	46





	

SCHEDULE I	
 	

Applicable Lending Offices
	SCHEDULE 2.01	 	Allocations
	SCHEDULE 2.10	 	Approved Asset Sales
	

EXHIBIT A	
 	

Form of Borrowing Request
	EXHIBIT B	 	Form of Standby Note
	EXHIBIT C	 	Assignment and Acceptance
	EXHIBIT D	 	Form of Opinion of Counsel to the Borrower




2







   
        AMENDED AND RESTATED FIVE YEAR REVOLVING CREDIT FACILITY AGREEMENT dated as of April 30, 2003, among AVAYA INC., a Delaware corporation (the "Borrower"), the lenders listed
in Schedule 2.01 (the "Lenders"), CITIBANK, N.A., as agent for the Lenders (in such capacity, the "Agent"), CITIGROUP GLOBAL MARKETS INC., as Lead Arranger, BANK ONE, NA, JPMORGAN CHASE
BANK and DEUTSCHE BANK AG NEW YORK BRANCH, as Co-Syndication Agents and Co-Arrangers, and COMMERZBANK AG, NEW YORK BRANCH, as Co-Arranger. 



        The
Borrower is party to a Five Year Competitive Advance And Revolving Credit Facility Agreement dated as of September 25, 2000, as amended by Letter Amendment dated as of
August 10, 2001, as amended by Amendment No. 2 dated as of February 8, 2002 and as amended and restated as of September 3, 2002 (as so amended, the "Existing Credit
Agreement") with the lenders and agents parties thereto and the Agent. 


        The
Borrower has requested, and the Required Lenders have agreed, subject to the satisfaction of the conditions set forth in Section 4.01, to amend and restate the Existing Credit
Agreement on the terms and subject to the conditions herein set forth. 


        Accordingly,
the Borrower, the Lenders and the Agent agree as follows: 


ARTICLE I  


 Definitions  


        SECTION
1.01.    Defined Terms.    As used in this Agreement, the following terms shall have the meanings specified
below: 


        "ABR
Borrowing" shall mean a Borrowing comprised of ABR Loans. 


        "ABR
Loan" shall mean any Loan bearing interest at a rate determined by reference to the Alternate Base Rate in accordance with the provisions of Article II. 


        "Administrative
Fees" shall have the meaning assigned to such term in Section 2.05(b). 


        "Administrative
Questionnaire" shall mean an Administrative Questionnaire containing contact information for each Lender in form satisfactory to the Agent. 



        "Affiliate"
shall mean, when used with respect to a specified person, another person that directly or indirectly controls or is controlled by or is under common control with the person
specified. 


        "Alternate
Base Rate" shall mean, for any day, a rate per annum equal to the greater of (a) the Base Rate in effect on such day and (b) the Federal Funds Effective Rate in
effect on such day plus 1/2 of 1%. For purposes hereof, "Base Rate" shall mean the rate of interest per annum publicly announced from time to time by the Agent as its base rate in
effect at its principal office in New York City; each change in the Base Rate shall be effective on the date such change is publicly announced as effective. For purposes hereof, "Federal Funds
Effective Rate" shall mean, for any day, the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the next preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for any day which is a
Business Day, the arithmetic average, as determined by the Agent, of the quotations for the day of such transactions received by the Agent from three Federal funds brokers of recognized standing
selected by it. If for any reason the Agent shall have determined (which determination shall be conclusive absent manifest error) that it is unable to ascertain the Federal Funds Effective Rate for
any reason, including the inability or failure of the Agent to obtain sufficient quotations in accordance with the terms thereof, the Alternate Base Rate shall be determined without regard to
clause (b) of the first sentence of this definition until the circumstances giving rise to such 


4





 



inability
no longer exist. Any change in the Alternate Base Rate due to a change in the Base Rate or the Federal Funds Effective Rate shall be effective on the effective date of such change in the
Base Rate or the Federal Funds Effective Rate, respectively. 


        "Amendment
No. 2 Effective Date" means February 8, 2002. 


        "Applicable
Margin" shall mean, as of any date, a percentage per annum determined by reference to the Public Debt Rating in effect on such date as set forth below: 



	Public Debt Rating

S&P/Moody's
	 	Applicable Margin for

Eurodollar

Loans
	 	Applicable Margin for

ABR Loans
	 
	I: At least BBB- or Baa3	 	1.250	%	0.000	%
	II: Below I, but at least BB+ and Ba1	 	1.625	%	0.125	%
	III: Below II, but at least BB and Ba2	 	2.000	%	0.500	%
	IV: Below III, but at least BB- and Ba3	 	2.500	%	1.000	%
	V: Below IV	 	3.250	%	1.750	%






        "Applicable
Percentage" means, as of any date, a percentage per annum determined by reference to the Public Debt Rating in effect on such date as set forth below: 



	Public Debt Rating

S&P/Moody's
	 	Applicable

Percentage
	 
	I: At least BBB- or Baa3	 	0.250	%
	II: Below I, but at least BB+ and Ba1	 	0.375	%
	III: Below II, but at least BB and Ba2	 	0.500	%
	IV: Below III, but at least BB- and Ba3	 	0.500	%
	V: Below IV	 	0.750	%






        "Applicable
Utilization Fee" means, as of any date that the aggregate Loans exceed 50% of the aggregate Commitments, a percentage per annum determined by reference to the Public Debt
Rating in effect on such date as set forth below: 



	Public Debt Rating

S&P/Moody's
	 	Applicable

Utilization Fee

for Eurodollar

Loans
	 	Applicable

Utilization

Fee for ABR Loans
	 
	I: At least BBB- or Baa3	 	0.250	%	0.000	%
	II: Below I, but at least BB+ and Ba1	 	0.250	%	0.250	%
	III: Below II, but at least BB and Ba2	 	0.250	%	0.250	%
	IV: Below III, but at least BB- and Ba3	 	0.500	%	0.500	%
	V: Below IV	 	0.500	%	0.500	%






        "Assignment
and Acceptance" shall mean an assignment and acceptance entered into by a Lender and an assignee, and accepted by the Agent, in the form of Exhibit C. 


        "Board"
shall mean the Board of Governors of the Federal Reserve System of the United States. 


        "Board
of Directors" shall mean the Board of Directors of the Borrower, or any duly authorized committee thereof. 


        "Borrowing"
shall mean a group of Loans of a single Type made by the Lenders on a single date and as to which a single Interest Period is in effect. 



        "Business
Day" shall mean any day (other than a day which is a Saturday, Sunday or legal holiday in the State of New York) on which banks are open for business in New York City;  provided, however, 


5





 



that,
when used in connection with a Eurodollar Loan, the term "Business Day" shall also exclude any day on which banks are not open for dealings in dollar deposits in the London interbank market. 



        "Capitalized
Leases" means all leases that have been or should be, in accordance with GAAP, recorded as capitalized leases. 


        "Closing
Date" shall mean the date hereof. 


        "Code"
shall mean the Internal Revenue Code of 1986, as the same may be amended from time to time. 


        "Collateral"
means all "Collateral" referred to in the Collateral Documents and all other property that is or is intended to be subject to any Lien in favor of the Collateral Agent for
the benefit of the Secured Parties. 


        "Collateral
Account" has the meaning specified in the Security Agreement. 


        "Collateral
Documents" means the Security Agreement, the Collateral Trust Agreement, and any other agreement that creates or purports to create a Lien in favor of the Collateral Trustee
for the benefit of the Secured Parties. 


        "Collateral
Trigger" means the date on which (a) the Borrower's corporate credit rating shall be lower than BBB- by S&P or (b) the Borrower's Public Debt Rating
shall be lower than Baa3 by Moody's. 


        "Collateral
Trust Agreement" means the Collateral Trust Agreement dated as of March 25, 2002 among the Borrower, the other grantors named therein and The Bank of New York, as
collateral trustee. 


        "Collateral
Trustee" has the meaning specified in the Collateral Trust Agreement. 


        "Commitment"
shall mean, with respect to each Lender, the Commitment of such Lender as set forth in Schedule 2.01 hereto. 


        "Borrowing"
shall mean a Borrowing consisting of simultaneous Loans from each of the Lenders. 


        "Borrowing
Request" shall mean a request made pursuant to Section 2.03 in the form of Exhibit A. 


        "Consolidated
EBITDA" shall mean, for any period, net income (or net loss) plus the sum of (a) consolidated interest expense,
(b) consolidated income tax expense, (c) consolidated depreciation expense, (d) consolidated amortization expense (including the write down of intangibles associated with the
adoption or implementation of FAS 142) and (e) all other non-cash charges except to the extent any such non-cash charge represents an accrual or reserve for cash
expenditures in a future period, in each case, determined in accordance with GAAP for such period, excluding, (i) up to $163,000,000 of
restructuring charges, including asset impairment and other one time charges during such period to be taken no later than the fourth quarter of fiscal year 2002 of the Borrower,
(ii) non-cash in process research and development charges associated with Investments made in accordance with Section 5.19(xi), (iii) up to $100,000,000 of
restructuring charges to
be taken no later than the fourth quarter of fiscal year 2003 of the Borrower and (iv) gains or losses realized upon the making of Investments in the LYONs. 


        "Debt"
of any Person means, without duplication, (a) all indebtedness of such Person for borrowed money, (b) all obligations of such Person for installment sale or other
deferred purchase price of property or services (other than trade payables incurred in the ordinary course of such Person's business), (c) all obligations of such Person evidenced by notes,
bonds, debentures or other similar instruments, (d) all obligations of such Person as lessee under Capitalized Leases and under synthetic, off-balance sheet or tax retention leases,
(e) all obligations, contingent or otherwise, of such Person in 


6





 



respect
of acceptances, standby letters of credit or similar extensions of credit, (f) all net payment obligations of such Person in respect of Hedge Agreements, (g) all Debt of others
referred to in clauses (a) through (f) above or clause (h) below guaranteed directly or indirectly in any manner by such Person, or in effect guaranteed directly or indirectly by
such Person through an agreement (1) to pay or purchase such Debt or to advance or supply funds for the payment or purchase of such Debt or (2) to purchase, sell or lease (as lessee or
lessor) property, or to purchase or sell services, primarily for the purpose of providing direct or indirect security for such Debt or to assure the holder of such Debt against loss, and
(h) all Debt referred to in clauses (a) through (g) above secured by (or for which the holder of such Debt has an existing right, contingent or otherwise, to be secured by) any
Lien on property (including, without limitation, accounts and contract rights) owned by such Person, even though such Person has not assumed or become liable for the payment of such Debt. 



        "Default"
shall mean any event or condition which upon notice, lapse of time or both would constitute an Event of Default. 


        "Defaulting
Lender" means, at any time, any Lender that, at such time, (a) has failed to fund any portion of any Loan required to be made by such Lender to the Borrower pursuant
to Section 2.01 or 2.02 at or prior to such time or (b) shall take any action or be the subject of any action or proceeding of a type described in Section 6.01(g) or (h). 


        "dollars"
or "$" shall mean lawful money of the United States of America. 


        "Environmental
Law" shall mean any federal, state, local or foreign statute, law, ordinance, rule, regulation, code, order, judgment, decree or judicial or agency interpretation, policy
or guidance relating to pollution or protection of the environment, health, safety or natural resources, including, without limitation, those relating to the use, handling, transportation, treatment,
storage, disposal, release or discharge of Hazardous Materials. 


        "ERISA"
shall mean the Employee Retirement Income Security Act of 1974, as amended from time to time, and the regulations promulgated and rulings issued thereunder. 



        "ERISA
Affiliate" means any Person that for purposes of Title IV of ERISA is a member of the Borrower's controlled group, or under common control with the Borrower, within the meaning of
Section 414 of the Internal Revenue Code. 


        "ERISA
Event" means (a) (i) the occurrence of a reportable event, within the meaning of Section 4043 of ERISA, with respect to any Plan unless the 30-day notice
requirement with respect to such event has been waived by the PBGC, or (ii) the requirements of subsection (1) of Section 4043(b) of ERISA (without regard to subsection
(2) of such Section) are met with a contributing sponsor, as defined in Section 4001(a)(13) of ERISA, of a Plan, and an event described in paragraph (9), (10), (11),
(12) or (13) of Section 4043(c) of ERISA is reasonably expected to occur with respect to such Plan within the following 30 days; (b) the application for a minimum
funding waiver with respect to a Plan; (c) the provision by the administrator of any Plan of a notice of intent to terminate such Plan pursuant to Section 4041(a)(2) of ERISA (including
any such notice with respect to a plan amendment referred to in Section 4041(e) of ERISA); (d) the cessation of operations at a facility of the Borrower or any ERISA Affiliate in the
circumstances described in Section 4062(e) of ERISA; (e) the withdrawal by the Borrower or any ERISA Affiliate from a Multiple Employer Plan during a plan year for which it was a
substantial employer, as defined in Section 4001(a)(2) of ERISA; (f) the conditions for the imposition of a lien under Section 302(f) of ERISA shall have been met with respect to
any Plan; (g) the adoption of an amendment to a Plan requiring the provision of security to such Plan pursuant to Section 307 of ERISA; or (h) the institution by the PBGC of
proceedings to terminate a Plan pursuant to Section 4042 of ERISA, or the occurrence of any event or condition described in Section 4042 of ERISA that constitutes grounds for the
termination of, or the appointment of a trustee to administer, a Plan. 


7





 



        "Eurodollar
Borrowing" shall mean a Borrowing comprised of Eurodollar Loans. 


        "Eurodollar
Loan" shall mean any Loan bearing interest at a rate determined by reference to the LIBO Rate in accordance with the provisions of Article II. 


        "Event
of Default" shall have the meaning assigned to such term in Article VI. 


        "Excluded
Subsidiary" means Mercury Insurance Inc., Avaya International LLC and any special purpose entity established in connection with an offering of Indebtedness secured by
real property. 



        "Existing
Credit Agreement" has the meaning specified in the Preliminary Statements. 


        "Facility
Fee" shall have the meaning assigned to such term in Section 2.05(a). 


        "Fee
Letter" shall mean the Fee Letter dated August 10, 2000, between the Borrower, Salomon Smith Barney Inc. and the Agent. 


        "Fees"
shall mean the Facility Fee and the Administrative Fees. 


        "Financial
Officer" of any corporation shall mean the chief financial officer, principal accounting officer or Treasurer of such corporation. 


        "GAAP"
shall mean generally accepted accounting principles, applied on a consistent basis. 


        "Governmental
Authority" shall mean any Federal, state, local or foreign court or governmental agency, authority, instrumentality or regulatory body. 


        "Hazardous
Materials" shall mean (a) petroleum and petroleum products, byproducts or breakdown products, radioactive materials, asbestos-containing materials, polychlorinated
biphenyls and radon gas and (b) any other chemicals, materials or substances designated, classified or regulated as hazardous or toxic or as a pollutant or contaminant under any Environmental
Law. 


        "Hedge
Agreement" means interest rate swap or collar agreements, interest rate future contracts, currency swap agreements, currency future contracts and other similar agreements. 


        "Interest
Payment Date" shall mean, with respect to any Loan, the last day of the Interest Period applicable thereto and, in the case of a Eurodollar Loan with an Interest Period of more
than three months' duration, each day that would have been an Interest Payment Date for such Loan had successive Interest Periods of three months' duration been applicable to such Loan and, in
addition, the date of any conversion of such Loan to a Loan of a different Type. 


        "Interest
Period" shall mean (a) as to any Eurodollar Borrowing, the period commencing on the date of such Borrowing or on the last day of the immediately preceding Interest
Period applicable to such Borrowing, as the case may be, and ending on the numerically corresponding day (or, if there is no numerically corresponding day, on the last day) in the calendar month that
is 1, 2, 3, 6 or to the extent available to each Lender, 9 or 12 months thereafter, as the Borrower may elect and (b) as to any ABR Borrowing, the period commencing on the date of such
Borrowing or on the last day of the immediately preceding Interest Period applicable to such Borrowing, as the case may be, and ending on the earliest of (i) the next succeeding
March 31, June 30, September 30 or December 31, (ii) the Maturity Date, and (iii) the date such Borrowing is converted to a Borrowing of a different Type in
accordance with Section 2.04 or repaid or prepaid in accordance with Section 2.06 or Section 2.11; provided,  however, that if any Interest
Period would end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding
Business Day unless, in the case of Eurodollar Loans only, such next succeeding Business Day would fall in the next calendar month, in which case such Interest Period shall end on the next preceding
Business Day. Interest shall accrue from and including the first day of an Interest Period to but excluding the last day of such Interest Period. 


8





 



        "Investment"
in any Person means any loan or advance to such Person, any purchase or other acquisition of any equity interests or Debt or the assets comprising a division or business
unit or a substantial part or all of the business of such Person, any capital contribution to such Person or any other direct or indirect investment in such Person, including, without limitation, any
acquisition by way of a merger or consolidation and any arrangement pursuant to which the investor incurs Debt of the types referred to in clause (g) or (h) of the definition of "Debt"
in respect of such Person. The amount of any Investment shall be the original cash cost of such Investment plus the cost of all additions thereto, without any adjustment for increases or decreases in
value, but shall be reduced by the amount of such Investment returned in cash. 


        "LIBO
Rate" means, for any Interest Period for all of the Eurodollar Loans comprising part of the same Borrowing, an interest rate per annum equal to the rate per annum (rounded upward
to the nearest whole multiple of 1/16 of 1% per annum) appearing on Moneyline Telerate Markets Page 3750 (or any successor page) as the London interbank offered rate for deposits in
United States dollars at approximately 11:00 A.M. (London time) two Business Days prior to the first day of such Interest Period for a term comparable to such Interest Period or, if for any
reason such rate is not available, the average (rounded upward to the nearest whole multiple of 1/16 of 1% per annum, if such average is not such a multiple) of the rate per annum at
which deposits in United States dollars are offered by the principal office of each of the Reference Banks in London, England to prime banks in the London interbank market at 11:00 A.M. (London
time) two Business Days before the first day of such Interest Period in an amount substantially equal to such Reference Bank's Eurodollar Loan comprising part of such Borrowing to be outstanding
during such Interest Period (or, if any Reference Bank shall not have such a Eurodollar Loan, $1,000,000) and for a period equal to such Interest Period. The LIBO Rate for any Interest Period for each
of the Eurodollar Loans comprising part of the same Borrowing shall be determined by the Agent on the basis of applicable rates furnished to and received by the Agent from the Reference Banks two
Business Days before the first day of such Interest Period, subject, however, to the provisions of
Section 2.07. 


        "Lien"
means any lien, security interest or other charge or encumbrance of any kind, or any other type of preferential arrangement, including, without limitation, the lien or retained
security title of a conditional vendor and any easement, right of way or other encumbrance on title to real property. 



        "Loan
Documents" means this Agreement, any notes evidencing the Loans, any guaranty delivered pursuant to Section 5.15 and, during the continuance of the Security Period, the
Collateral Documents. 


        "Loan
Parties" means the Borrower and the Subsidiary Guarantors. 


        "Loans"
shall mean the revolving loans made by the Lenders to the Borrower pursuant to Section 2.03. Each Loan shall be a Eurodollar Loan or an ABR Loan. 


        "Margin
Regulations" shall mean Regulations T, U and X of the Board as from time to time in effect, and all official rulings and interpretations thereunder or thereof. 



        "Margin
Stock" shall have the meaning given such term under Regulation U of the Board. 


        "Marketable
Securities" means any of the following, to the extent owned by the Borrower free and clear of all Liens other than Liens created under the Collateral Documents and having a
maturity of not greater than 180 days from the date of acquisition thereof: (a) readily marketable direct obligations of the Government of the United States or any agency or
instrumentality thereof or obligations unconditionally guaranteed by the full faith and credit of the Government of the United States, (b) insured certificates of deposit of or time deposits
with any commercial bank that is a Lender or a member of the Federal Reserve System, issues (or the parent of which issues) commercial paper rated as described in clause (c) below, is organized
under the laws of the United States or any State thereof and has combined capital and surplus of at least $500 million, (c) commercial paper in an aggregate amount of no more than
$25,000,000 per issuer outstanding at any time, issued by any corporation 


9





 



organized
under the laws of any State of the United States and rated at least "Prime-1" (or the then equivalent grade) by Moody's or "A-1" (or the then equivalent grade) by
S&P, (d) fully collateralized repurchase agreements with a term of not more than 30 days for securities described in clause (a) and entered into with a financial institution
satisfying the criteria in clause (b) or (e) other instruments as set forth on the Borrower's policy as in effect on the date hereof, a copy of which has been made available to each
Lender. 


        "Material
Adverse Effect" shall mean a material adverse effect on the business, assets, operations or condition, financial or otherwise of the Borrower and its subsidiaries taken as a
whole. 


        "Material
Subsidiary" of each Borrower, as the case may be, means, at any time, each of its Subsidiaries having (a) assets with a value of not less than 5% of the total value of
the consolidated assets of such Borrower and its Subsidiaries, taken as a whole, or (b) consolidated revenues not less than 5% of the consolidated revenues of such Borrower and its
Subsidiaries, taken as a whole, in each case as of the end of or for most recently completed fiscal year of such Borrower. 


        "Maturity
Date" shall mean September 25, 2005. 


        "Moody's"
shall mean Moody's Investors Service, Inc. 


        "Multiemployer
Plan" means a multiemployer plan, as defined in Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate is making or accruing an obligation to
make contributions, or has within any of the preceding five plan years made or accrued an obligation to make contributions. 


        "Multiple
Employer Plan" means a single employer plan, as defined in Section 4001(a)(15) of ERISA, that (a) is maintained for employees of the Borrower or any ERISA
Affiliate and at least one person other than the Borrower or the ERISA Affiliate or (b) was so maintained and in respect of which the Borrower or any ERISA Affiliate could have liability under
Section 4064 or 4069 of ERISA in the event such plan has been or were to be terminated. 



        "Net Cash Proceeds" means, with respect to any sale, transfer or other disposition of any asset of Borrower or its Subsidiaries (excluding
receivables) and/or the sale, incurrence or issuance of any Debt in the capital markets or equity interests by any Person, the aggregate amount of cash received from time to time (whether as initial
consideration or through payment or disposition of deferred consideration) by or on behalf of such Person in connection with such transaction after deducting therefrom only (without duplication)
(a) reasonable and customary brokerage commissions, underwriting fees and discounts, legal fees, finder's fees and other similar fees and commissions, (b) the amount of taxes payable in
connection with or as a result of such transaction and (c) the amount of any Debt secured by a Lien on such asset that, by the terms of the agreement or instrument governing such Debt, is
required to be repaid upon such disposition, in the case of (a) and (c) to the extent, but only to the extent, that the amounts so deducted are, at the time of receipt of such cash,
actually paid to a Person that is not an Affiliate of such Person and in each case are properly attributable to such transaction or to the asset that is the subject thereof. 


        "PBGC"
means the Pension Benefit Guaranty Corporation (or any successor). 


        "Permitted
Lien" means such of the following as to which no enforcement, collection, execution, levy or foreclosure proceeding shall have been commenced: (a) Liens for taxes,
assessments and governmental charges or levies other than any such Lien that is being contested in good faith and by proper proceedings and as to which appropriate reserves are being maintained, and
as to which no Lien resulting therefrom has attached to its property and become enforceable against its other creditors; (b) landlord's liens and Liens imposed by law, such as materialmen's,
mechanics', carriers', workmen's and repairmen's Liens and other similar Liens arising in the ordinary course of business securing obligations that are not overdue for a period of more than
60 days; (c) pledges or deposits to secure obligations under workers' compensation laws or similar legislation or to secure public or statutory 


10





 

obligations;
(d) easements, rights of way and other encumbrances on title to real property that do not render title to the property encumbered thereby unmarketable or materially adversely
affect the use of such property for its present purposes; (e) governmental (Federal, state or municipal) liens arising out of contracts for the purchase of products and deposits or pledges to
obtain the release of any of such liens; (f) liens created by or resulting from any litigation or legal proceeding that is currently being contested in good faith by appropriate proceedings;
(g) deposits in connection with bids, tenders, contracts (other than for the payment of money); (h) deposits in connection with obtaining or maintaining self-insurance or to
obtain the benefits of any law, regulation or arrangement pertaining to unemployment insurance, old age pensions, social security or similar matters; and (i) deposits of cash or obligations of
the United States of America to secure surety, appeal or customs bonds. 


        "Person"
or "person" shall mean any natural person, corporation, business trust, joint venture, association, company, partnership or government, or any agency or political subdivision
thereof. 


        "Plan"
means a Single Employer Plan or a Multiple Employer Plan. 


        "Public
Debt Rating" means, as of any date, the lowest rating that has been most recently announced by either S&P or Moody's, as the case may be, for any class of non-credit
enhanced long-term senior unsecured debt issued by the Borrower. For purposes of the foregoing, (a) if only one of S&P and Moody's shall have in effect a Public Debt Rating, the
Applicable Margin, the Applicable Percentage and the Applicable Utilization Fee shall be determined by reference to the available rating; (b) if neither S&P nor Moody's shall have in effect a
Public Debt Rating, the Applicable Margin, the Applicable Percentage and the Applicable Utilization Fee will be set in accordance with Level V under the definition of "Applicable Margin", "Applicable
Percentage" or "Applicable Utilization Fee", as the case may be; (c) if the ratings established by S&P and Moody's shall fall within different levels and (x) the higher level is Level II
or lower, the Applicable Margin, the Applicable Percentage and the Applicable Utilization Fee shall be based upon the lower of such ratings or (y) the higher level is Level I, the Applicable
Margin, the Applicable Percentage and the Applicable Utilization Fee shall be based upon the higher of such ratings, provided in the case of this clause (y) that if the lower of such ratings is
more than one level below the higher of such ratings, the Applicable Percentage, the Applicable Margin and the Applicable Utilization Fee shall be determined by reference to the level that is one
level above such lower rating; (d) if any rating established by S&P or Moody's
shall be changed, such change shall be effective as of the date on which such change is first announced publicly by the rating agency making such change; and (e) if S&P or Moody's shall change
the basis on which ratings are established, each reference to the Public Debt Rating announced by S&P or Moody's, as the case may be, shall refer to the then equivalent rating by S&P or Moody's, as
the case may be. 


        "Reference
Banks" shall mean Citibank, N.A., JPMorgan Chase Bank and Deutsche Bank AG. 


        "Register"
shall have the meaning given such term in Section 8.04(d). 


        "Required
Lenders" shall mean, at any time, Lenders having Commitments representing at least 51% of the Total Commitment or, for purposes of acceleration pursuant to clause (ii)
of Article VI, Lenders holding Loans representing at least 51% of the aggregate principal amount of the Loans outstanding. 



        "Responsible
Officer" of any corporation shall mean any executive officer or Financial Officer of such corporation and any other officer or similar official thereof responsible for the
administration of the obligations of such corporation in respect of this Agreement. 


        "S&P"
shall mean Standard and Poor's Ratings Services, a division of The McGraw-Hill Companies, Inc. 


        "SEC"
shall mean the Securities and Exchange Commission. 



        "Secured
Parties" has the meaning specified in the Collateral Trust Agreement. 


11





 



        "Security
Agreement" means the Security Agreement dated as of March 25, 2002 made by the Borrower and the other grantors named therein in favor of the Collateral Trustee. 


        "Security
Period" means the period, if any, beginning with the occurrence of the Collateral Trigger until the earlier of (a) the date thereafter, if any, that (i) the
Borrower's corporate credit rating shall be at least BBB by S&P and the Borrower's Public Debt Rating shall be at least Baa2 by Moody's and (ii) to the extent such corporate credit rating shall
be BBB by S&P or such Public Debt Rating shall be
Baa2 by Moody's, such rating shall not be accompanied by either (x) in the case of S&P, a negative outlook, creditwatch negative or the equivalent thereof or (y) in the case of Moody's,
a negative outlook, a review for possible downgrade or the equivalent thereof, and (b) the later of the repayment in full of all Advances and the Maturity Date. 


        "Single
Employer Plan" means a single employer plan, as defined in Section 4001(a)(15) of ERISA, that (a) is maintained for employees of the Borrower or any ERISA Affiliate
and no person other than the Borrower or the ERISA Affiliate or (b) was so maintained and in respect of which the Borrower or any ERISA Affiliate could have liability under Section 4069
of ERISA in the event such plan has been or were to be terminated. 


        "Subsidiary"
shall mean, with respect to the Borrower, any corporation, partnership, joint venture, limited liability company, trust or estate, a majority of the Voting Shares of which
are at the time owned or controlled, directly or indirectly, by it or by one or more of its Subsidiaries and required to be consolidated in accordance with GAAP in its consolidated financial
statements. 


        "Subsidiary
Guarantors" means each Material Subsidiary that shall be required to execute and deliver a guaranty pursuant to Section 5.15, but shall not include any Excluded
Subsidiary. 


        "Total
Commitment" shall mean, at any time, the aggregate amount of Commitments of all the Lenders, as in effect at such time. 


        "Transactions"
shall have the meaning assigned to such term in Section 3.02. 


        "Type",
when used in respect of any Loan or Borrowing, shall refer to the Rate by reference to which interest on such Loan or on the Loans comprising such Borrowing is determined. For
purposes hereof, "Rate" shall include the LIBO Rate and the Alternate Base Rate. 


        "Unrestricted
Domestic Cash" means, for any Person, cash held by such Person in accounts located within the United States that is not subject to any Lien. 


        "Voting
Shares" shall mean, as to shares or other ownership interests of a particular corporation, partnership, joint venture, limited liability company, trust or estate
(i) 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,
(ii) the interests in the capital or profits of such partnership, joint venture or limited liability company or (iii) the beneficial interest in such trust or estate. 


        "Warburg
Transactions" means the transactions contemplated by (i) the Preferred Stock and Warrant Purchase Agreement dated as of August 8, 2000, by and among the Borrower,
Warburg, Pincus Equity Partners, L.P. and the other Purchasers party thereto, including the terms of the Series B convertible participating preferred stock and warrants issued pursuant thereto
and (ii) any amendment of the terms of the Series B convertible participating preferred stock or exchange or equity interests for shares of Series B convertible participating
preferred stock, in each case, to the extent permitted under Section 5.18(iv). 



        SECTION
1.02.    Terms Generally.    The definitions in Section 1.01 shall apply equally to both the singular
and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words "include," "includes" and 


12





 



"including"
shall be deemed to be followed by the phrase "without limitation." All references herein to Articles, Sections, Exhibits and Schedules shall be deemed references to Articles and Sections
of, and Exhibits and Schedules to, this Agreement unless the context shall otherwise require. Except as otherwise expressly provided herein, all terms of an accounting or financial nature shall be
construed in accordance with GAAP, as in effect from time to time. 


13






   ARTICLE II  


 The Credits  


        SECTION
2.01.    Commitments.    Subject to the terms and conditions and relying upon the representations and
warranties herein set forth, each Lender agrees, severally and not jointly, to make Loans to the Borrower, at any time and from time to time on and after the date hereof and until the earlier of the
Maturity Date and the termination of the Commitment of such Lender, in an aggregate principal amount at any time outstanding not to exceed such Lender's Commitment, subject, however, to the conditions
that (i) at no time shall (A) the outstanding aggregate principal amount of all Loans made by all Lenders exceed (B) the Total Commitment, and (ii) at all times the
outstanding aggregate principal amount of all Loans made by each Lender shall equal the product of (A) the percentage which its Commitment represents of the Total Commitment times
(B) the outstanding aggregate principal amount of all Loans made pursuant to Section 2.03. Each Lender's Commitment is set forth opposite its name in Schedule 2.01. Such
Commitments may be terminated or reduced from time to time pursuant to Section 2.10. 


        Within
the foregoing limits, the Borrower may borrow, pay or prepay and reborrow Loans hereunder, on and after the Closing Date and prior to the Maturity Date, subject to the terms,
conditions and limitations set forth herein. 


        SECTION
2.02.    Loans.    (a) Each Loan shall be made as part of a Borrowing consisting of Loans made by the
Lenders ratably in accordance with their respective Commitments; provided, however, that the failure of
any Lender to make any Loan shall not in itself relieve any other Lender of its obligation to lend hereunder (it being understood, however, that no Lender shall be responsible for the failure of any
other Lender to make any Loan required to be made by such other Lender). The Loans comprising any Borrowing shall be in an aggregate principal amount which is an integral multiple of $1,000,000 and
not less than $10,000,000 (or an aggregate principal amount equal to the remaining balance of the available Commitments). 



        (b)   Each
Borrowing shall be comprised entirely of Eurodollar Loans or ABR Loans, as the Borrower may request pursuant to Section 2.03. Each Lender may at its option
make any Eurodollar Loan by
causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that any exercise of such option shall not affect the
obligation of the Borrower to repay such Loan in accordance with the terms of this Agreement. Borrowings of more than one Type may be outstanding at the same time;  provided, however, that the Borrower shall not be entitled to request any Borrowing which, if made,
would result in an aggregate of more than 10 separate Borrowings comprised of Eurodollar Loans being outstanding hereunder at any one time. For purposes of the foregoing, Loans having different
Interest Periods, regardless of whether they commence on the same date, shall be considered separate Loans. 


        (c)   Subject
to Section 2.04, each Lender shall make each Loan to be made by it hereunder on the proposed date thereof by wire transfer of immediately available funds
to the Agent in New York, New York, not later than 12:00 noon, New York City time, and the Agent shall by 3:00 p.m., New York City time, credit the amounts so received to the general deposit
account of the Borrower with the Agent or, if a Borrowing shall not occur on such date because any condition precedent herein specified shall not have been met, return the amounts so received to the
respective Lenders. Loans shall be made by the Lenders pro rata in accordance with Section 2.15. Unless the Agent shall have received notice from a Lender prior to the date of any Borrowing
that such Lender will not make available to the Agent such Lender's portion of such Borrowing, the Agent may assume that such Lender has made such portion available to the Agent on the date of such
Borrowing in accordance with this paragraph (c) and the Agent may, in reliance upon such assumption, make available to the Borrower on such date a corresponding amount. If and to the extent
that such Lender shall not have made such portion available to the Agent, such Lender and 



14





 




the
Borrower severally agree to repay to the Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to the
Borrower until the date such amount is repaid to the Agent at (i) in the case of the Borrower, the interest rate applicable at the time to the Loans comprising such Borrowing and (ii) in
the case of such Lender, the Federal Funds Effective Rate. If such Lender shall repay to the Agent such corresponding amount, such amount shall constitute such Lender's Loan as part of such Borrowing
for purposes of this Agreement. 




        SECTION
2.03.    Borrowing Procedure.    In order to request a Borrowing, the Borrower shall hand deliver or telecopy
to the Agent a duly completed Borrowing Request in the form of Exhibit A (a) in the case of a Eurodollar Borrowing, not later than 10:30 a.m., New York City time, three Business
Days before a proposed Borrowing and (b) in the case of an ABR Borrowing, not later than 10:30 a.m., New York City time, on the day of a proposed Borrowing. Such notice shall be
irrevocable and shall in each case specify (i) whether the Borrowing then being requested is to be a Eurodollar Borrowing or an ABR Borrowing; (ii) the date of such Borrowing (which
shall be a Business Day) and the amount thereof; and (iii) if such Borrowing is to be a Eurodollar Borrowing, the Interest Period with respect thereto, which shall not end after the Maturity
Date. If no election as to the Type of Borrowing is specified in any such notice, then the requested Borrowing shall be an ABR Borrowing. If no Interest Period with respect to any Eurodollar Borrowing
is specified in any such notice, then the Borrower shall be deemed to have selected an Interest Period of one month's duration. Notwithstanding any other provision of this Agreement to the contrary,
the Borrower shall not be entitled to request any Borrowing if the Interest Period requested with respect to such Borrowing would end after the Maturity Date. The
Agent shall promptly advise the Lenders of any notice given pursuant to this Section 2.03 and of each Lender's portion of the requested Borrowing. 


        SECTION
2.04.    Conversion and Continuation of Loans.    The Borrower shall have the right at any time upon prior
irrevocable notice to the Agent (i) not later than 10:30 a.m., New York City time, on the day of the conversion, to convert all or any part of any Eurodollar Borrowing into an ABR
Borrowing, (ii) not later than 10:30 a.m., New York City time, three Business Days prior to conversion or continuation, to convert any ABR Borrowing into a Eurodollar Borrowing or to
continue any Eurodollar Borrowing as a Eurodollar Borrowing for an additional Interest Period and (iii) not later than 10:30 a.m., New York City time, three Business Days prior to
conversion, to convert the Interest Period, with respect to any Eurodollar Borrowing to another permissible Interest Period, subject in each case to the following: 



        (a)   if
less than all the outstanding principal amount of any Borrowing shall be converted or continued, the aggregate principal amount of the Borrowing converted or
continued shall be an integral multiple of $1,000,000 and not less than $10,000,000; 


        (b)   accrued
interest on a Borrowing (or portion thereof) being converted shall be paid by the Borrower at the time of conversion; 


        (c)   if
any Eurodollar Borrowing is converted at a time other than the end of the Interest Period applicable thereto, the Borrower shall pay, upon demand, any amounts due to
the Lenders pursuant to Section 2.14; 


        (d)   any
portion of a Borrowing maturing or required to be repaid in less than one month may not be converted into or continued as a Eurodollar Borrowing; 



        (e)   any
portion of a Eurodollar Borrowing which cannot be continued as a Eurodollar Borrowing by reason of clause (d) above shall be automatically converted at the
end of the Interest Period in effect for such Eurodollar Borrowing into an ABR Borrowing; and 


        (f)    no
Interest Period may be selected for any Eurodollar Borrowing that would end later than the Maturity Date. 



15





 





        Each
notice of the Borrower pursuant to this Section 2.04 shall be irrevocable and shall refer to this Agreement and specify (i) the identity and amount of the Borrowing
that the Borrower requests to be converted or continued, (ii) whether such Borrowing is to be converted to or continued as a Eurodollar Borrowing or an ABR Borrowing, (iii) if such
notice requests a conversion, the date of such conversion (which shall be a Business Day) and (iv) if such Borrowing is to be converted to or continued as a Eurodollar Borrowing, the Interest
Period with respect thereto. If no Interest Period is specified in any such notice with respect to any conversion to or continuation as a Eurodollar Borrowing, the Borrower shall be deemed to have
selected an Interest Period of one month's duration. If the Borrower shall not have given notice in accordance with this Section 2.04 to convert or continue any Borrowing, such Borrowing shall,
at the end of the Interest Period applicable thereto (unless repaid pursuant to the terms hereof), automatically be converted or continued into a new Interest Period as an ABR Borrowing. 


        SECTION
2.05.    Fees.    (a) The Borrower agrees to pay to each Lender, through the Agent, on each
March 31, June 30, September 30 and December 31 (with the first payment being due on June 30, 2003) and on the date on which the Commitment of such Lender shall be
terminated or reduced as provided herein, a facility fee (a "Facility Fee") equal to the Applicable Percentage per annum in effect from time to time on the average daily amount of the Commitment of
such Lender, whether used or unused, during the preceding quarter (or other period commencing on the date of this Agreement, or ending with the Maturity Date or any date on which the Commitment of
such Lender shall be terminated or reduced). All Facility Fees shall be computed on the basis of the actual number of days elapsed in a year of 360 days. The Facility Fee due to each Lender
shall commence to accrue on the date of this Agreement, and shall cease to accrue on the earlier of the Maturity Date and the termination of the Commitment of such Lender as provided herein. 



        (b)   The
Borrower agrees to pay the Agent, for its own account, the administrative and other fees referred to in the Fee Letter (the "Administrative Fees") at the times and
in the amounts agreed upon in the Fee Letter. 


        (c)   All
Fees shall be paid on the dates due, in immediately available funds, to the Agent for distribution, if and as appropriate, among the Lenders. Once paid, none of the
Fees shall be refundable under any circumstances. 




        SECTION
2.06.    Repayment of Loans; Evidence of Debt.    (a) The Borrower hereby agrees that the outstanding
principal balance of each Loan shall be payable on the Maturity Date. Each Loan shall bear interest on the outstanding principal balance thereof as set forth in Section 2.07. 



        (b)   Each
Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of the Borrower to the appropriate lending office of
such Lender resulting from each Loan made by such lending office of such Lender from time to time, including the amounts of principal and interest payable and paid such lending office of such Lender
from time to time under this Agreement. 


        (c)   The
Agent shall maintain the Register pursuant to Section 8.04(d), and a subaccount for each Lender, in which Register and accounts (taken together) shall be
recorded (i) the amount of each Loan made hereunder, the Type of each Loan made and the Interest Period applicable thereto, (ii) the amount of any principal or interest due and payable
or to become due and payable from the Borrower to each Lender hereunder and (iii) the amount of any sum received by the Agent hereunder from the Borrower and each Lender's share thereof. 


        (d)   The
entries made in the Register and accounts maintained pursuant to paragraph (b) and (c) of this Section 2.06 shall, to the extent permitted by
applicable law, be prima facie evidence of the existence and amounts of the obligations of the Borrower therein recorded; provided,  however, that the
failure of any Lender or the Agent to maintain such account, such Register or such 



16





 




subaccount,
as applicable, or any error therein shall not in any manner affect the obligation of the Borrower to repay the Loans made to the Borrower by such Lender in accordance with their terms. 


        (e)   The
Borrower agrees that upon notice by any Lender after the initial borrowing hereunder to the Borrower (with a copy to the Agent) to the effect that a promissory note
or other evidence of indebtedness is required or appropriate in order for such Lender to evidence (whether for purposes of pledge, enforcement or otherwise) the Loans owing to, or to be made by, such
Lender, the Borrower shall promptly, execute and deliver to such Lender, with a copy to the Agent, a promissory note in substantially the form of Exhibit B hereto, payable to the order of such
Lender in a principal amount equal to the Commitment of such Lender. 




        SECTION
2.07.    Interest on Loans.    (a) Subject to the provisions of Section 2.08, the Loans
comprising each Eurodollar Borrowing shall bear interest (computed on the basis of the actual number of days elapsed over a year of 360 days) at a rate per annum equal to the LIBO Rate for the
Interest Period in effect for such Borrowing plus (x) the Applicable Margin from time to time in effect plus (y) the Applicable Utilization Fee from time to time in effect. 



        (b)   Subject
to the provisions of Section 2.08, the Loans comprising each ABR Borrowing shall bear interest (computed on the basis of the actual number of days elapsed
over a year of 365 or 366 days, as the case may be, for periods during which the Alternate Base Rate is determined by reference to the Base Rate and 360 days for periods during which the
Alternate Base Rate is determined by reference to the Federal Funds Effective Rate) at a rate per annum equal to the Alternate Base Rate from time to time in effect plus (x) the Applicable
Margin from time to time in effect plus (y) the Applicable Utilization Fee from time to time in effect. 



        (c)   Interest
on each Loan shall be payable on each Interest Payment Date applicable to such Loan except as otherwise provided in this Agreement. The applicable LIBO Rate or
Alternate Base Rate for
each Interest Period or day within an Interest Period, as the case may be, shall be determined in good faith by the Agent, and such determination shall be conclusive absent manifest error. 


        (d)   Each
Reference Bank agrees to furnish to the Agent timely information for the purpose of determining each Eurodollar Loan and each LIBO Rate. If any one or more of the
Reference Banks shall not furnish such timely information to the Agent for the purpose of determining any such interest rate, the Agent shall determine such interest rate on the basis of timely
information furnished by the remaining Reference Banks. The Agent shall give prompt notice to the Borrower and the Lenders of the applicable interest rate determined by the Agent for purposes of
Section 2.07(a), (b) or (c), and the rate, if any, furnished by each Reference Bank for the purpose of determining the interest rate under Section 2.07(a). 


        (e)   If
fewer than two Reference Banks furnish timely information to the Agent for determining the LIBO Rate for any Eurodollar Loan, 



          (i)  the
Agent shall forthwith notify the Borrower and the Lenders that the interest rate cannot be determined for such Eurodollar Loans, 



         (ii)  with
respect to Eurodollar Loans, each such Loan will automatically, on the last day of the then existing Interest Period therefor, be prepaid by the Borrower or be
automatically converted into a Base Rate Loan, and 


        (iii)  the
obligation of the Lenders to make Eurodollar Loans or to convert Base Rate Loans into Eurodollar Loans shall be suspended until the Agent shall notify the Borrower
and the Lenders that the circumstances causing such suspension no longer exist. 




17





 






        (f)    Upon
the occurrence and during the continuance of any Event of Default under Section 6.01(b) or (c), (i) each Eurodollar Loan will automatically, on the
last day of the then existing Interest Period therefor, be converted into Base Rate Loans and (ii) the obligation of the Lenders to make, or to convert Advances into, Eurodollar Loans shall be
suspended. 




        SECTION
2.08.    Default Interest.    If the Borrower shall default in the payment of the principal of or interest on
any Loan or any other amount becoming due hereunder, whether by scheduled maturity, notice of prepayment, acceleration or otherwise, the Borrower shall on demand from time to time from the Agent pay
interest, to the extent permitted by law, on such defaulted amount up to (but not
including) the date of actual payment (after as well as before judgment) at a rate per annum (computed on the basis of the actual number of days elapsed over a year of 360 days) equal to the
Alternate Base Rate plus 2%. 


        SECTION
2.09.    Alternate Rate of Interest.    In the event, and on each occasion, that on the day two Business Days
prior to the commencement of any Interest Period for a Eurodollar Borrowing the Agent shall have determined in good faith (i) that dollar deposits in the principal amounts of the Eurodollar
Loans comprising such Borrowing are not generally available in the London interbank market or (ii) that reasonable means do not exist for ascertaining the LIBO Rate, the Agent shall, as soon as
practicable thereafter, give telecopy notice of such determination to the Borrower and the Lenders. In the event of any such determination under clauses (i) or (ii) above, until the
Agent shall have advised the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, any request by the Borrower for a Eurodollar Borrowing pursuant to
Section 2.03 shall be deemed to be a request for an ABR Borrowing. In the event a Lender notifies the Agent that the rates at which dollar deposits are being offered will not adequately and
fairly reflect the cost to such Lender of making or maintaining its Eurodollar Loan during such Interest Period, the Agent shall notify the Borrower of such notice and until the Lender shall have
advised the Agent that the circumstances giving rise to such notice no longer exist, any request by the Borrower for a Eurodollar Borrowing shall be deemed a request for an ABR Borrowing for the same
Interest Period with respect to such Lender. Each determination by the Agent hereunder shall be in good faith and conclusive absent manifest error. 



        SECTION
2.10.    Termination and Reduction of Commitments.    (a) The Commitments shall be automatically
terminated on the Maturity Date. 



        (b)   Upon
at least three Business Days' prior irrevocable telecopy notice to the Agent, the Borrower may at any time in whole permanently terminate, or from time to time in
part permanently reduce, the Total Commitment; provided, however, that (i) each partial reduction
of the Total Commitment shall be in an integral multiple of $1,000,000 and in a minimum principal amount of $10,000,000 and (ii) no such termination or reduction shall be made which would
reduce the Total Commitment to an amount less than the aggregate outstanding principal amount of the Loans. Once terminated or reduced, the Total Commitment may not be reinstated. 


        (c)   Each
reduction in the Total Commitment hereunder shall be made ratably among the Lenders in accordance with their respective Commitments. The Borrower shall pay to the
Agent for the account of the Lenders, on the date of each termination or reduction of the Commitment, the Facility Fees on the amount of the Commitments so terminated or reduced accrued through the
date of such termination or reduction. 




        SECTION
2.11.    Prepayment.    (a) The Borrower shall have the right at any time and from time to time to
prepay any Borrowing, in whole or in part, upon giving telecopy notice (or telephone notice promptly confirmed by telecopy notice) to the Agent: (i) before 10:00 a.m., New York City
time, two Business Days prior to prepayment, in the case of Eurodollar Loans, and (ii) before 10:00 a.m., New York City time, on the same Business Day of prepayment, in the case of ABR
Loans; provided, 


18





 

 however, that each partial prepayment shall be in an amount which is an integral multiple of $1,000,000 and not less than $5,000,000. 



        (b)   On
the date of any termination or reduction of the Commitments pursuant to Section 2.10, the Borrower shall pay or prepay so much of the Borrowings as shall be
necessary in order that the aggregate principal amount of the Loans outstanding will not exceed the Total Commitment, after giving effect to such termination or reduction. 


        (c)   Each
notice of prepayment from the Borrower shall specify the prepayment date and the principal amount of each Borrowing (or portion thereof) to be prepaid, shall be
irrevocable and shall commit the Borrower to prepay such Borrowing (or portion thereof) by the amount stated therein on the date stated therein. All prepayments under this Section 2.11 shall be
subject to Section 2.14 but otherwise without premium or penalty. All prepayments under this Section 2.11 shall be accompanied by accrued interest on the principal amount being prepaid
to the date of payment. 




        SECTION
2.12.    Reserve Requirements; Change in Circumstances.    (a) Notwithstanding any other provision
herein, if after the date of this Agreement any change in applicable law or regulation or in the interpretation or administration thereof by any governmental authority charged with the interpretation
or administration thereof (whether or not having the force of law) shall result in the imposition, modification or applicability of any reserve, special deposit or similar requirement against assets
of, deposits with or for the account of or credit extended by any Lender, or shall result in the imposition on such Lender or the London interbank market any other condition affecting this Agreement,
such Lender's Commitment or any Eurodollar Loan made by such Lender, and the result of any of the foregoing shall be to increase the cost to such Lender of making or maintaining any Eurodollar Loan or
to reduce the amount of any sum received or receivable by such Lender hereunder (whether of principal, interest or otherwise) by an amount deemed by such Lender to be material, then the Borrower will
pay to such Lender upon demand such additional amount or amounts as will compensate such Lender for such additional costs incurred or reduction suffered. 



        (b)   If
any Lender shall have determined that the applicability of any law, rule, regulation or guideline adopted after the date hereof pursuant to or arising out of the
July 1988 report of the Basle Committee on Banking Regulations and Supervisory Practices entitled "International Convergence of Capital Measurement and Capital Standards," or the adoption after
the date hereof of any other law, rule, regulation or guideline regarding capital adequacy, or any change in any of the foregoing or in the interpretation or administration of any of the foregoing by
any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any
Lender (or any lending office of such Lender) or any Lender's holding company with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority,
central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender's capital or on the capital of such Lender's holding company, if any, as a consequence of
this Agreement, such Lender's Commitment or the Loans made by such Lender pursuant hereto to a level below that which such Lender or such Lender's holding company could have achieved but for such
adoption, change or compliance (taking into consideration such Lender's policies and the policies of such Lender's holding company with respect to capital adequacy) by an amount deemed by such Lender
to be material, then from time to time the Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender or such Lender's holding company for any such reduction
suffered. 


        (c)   A
certificate of the Lender setting forth such amount or amounts (including computation of such amount or amounts) as shall be necessary to compensate the Lender or its
holding company as specified in paragraph (a) or (b) above, as the case may be, shall be delivered to the 



19





 




Borrower
and such amount or amounts may be reviewed by the Borrower. Unless the Borrower disagrees in good faith with the computation of the amount or amounts in such certificate, the Borrower shall
pay to the Lender, within 10 Business Days after receipt by the Borrower of such certificate delivered by the Lender, the amount shown as due on any such certificate. If the Borrower, after receipt of
any such certificate from the Lender, disagrees with the Lender on the computation of the amount or amounts owed to the Lender pursuant to paragraph (a) or (b) above, the Lender and the
Borrower shall negotiate in good faith to promptly resolve such disagreement. In either case, however, the Lender shall have a duty to mitigate the damages that may arise as a consequence of
paragraph (a) or (b) above to the extent that such mitigation will not, in the judgment of the Lender, entail any cost or disadvantage to the Lender that the Lender is not reimbursed or
compensated for by the Borrower. 


        (d)   Failure
on the part of any Lender to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital with
respect to any period shall not constitute a waiver of such Lender's right to demand compensation with respect to any other period; provided that if any
Lender fails to make such demand within 45 days after it obtains knowledge of the event giving rise to the demand such Lender shall, with respect to amounts payable pursuant to this
Section 2.12 resulting from such event, only be entitled to payment under this Section 2.12 for such costs incurred or reduction in amounts or return on capital from and after the date
45 days prior to the date that such Lender does make such demand. The protection of this Section shall be available to each Lender regardless of any possible contention of the invalidity or
inapplicability of the law, rule, regulation, guideline or other change or condition which shall have occurred or been imposed. 




        SECTION
2.13.    Change in Legality.    (a) Notwithstanding any other provision herein, if any change in any
law or regulation or in the interpretation thereof by any Governmental Authority charged with the administration or interpretation thereof shall make it unlawful for any Lender to make or maintain any
Eurodollar Loan or to give effect to its obligations as contemplated hereby with respect to any
Eurodollar Loan, then, by 30 days' (or such shorter period as shall be required in order to comply with applicable law) written notice to the Borrower and to the Agent, such Lender may: 




          (i)  declare
that Eurodollar Loans will not thereafter be made by such Lender hereunder, whereupon any request by the Borrower for a Eurodollar Borrowing shall, as to such
Lender only, be deemed a request for an ABR Loan unless such declaration shall be subsequently withdrawn; and 


         (ii)  require
that all outstanding Eurodollar Loans made by it be converted to ABR Loans, in which event all such Eurodollar Loans shall be automatically converted to ABR
Loans as of the effective date of such notice as provided in paragraph (b) below. 





        In
the event any Lender shall exercise its rights under (i) or (ii) above, all payments and prepayments of principal which would otherwise have been applied to repay the
Eurodollar Loans that would have been made by such Lender or the converted Eurodollar Loans of such Lender shall instead be applied to repay the ABR Loans made by such Lender in lieu of, or resulting
from the conversion of, such Eurodollar Loans. 



        (b)   For
purposes of this Section 2.13, a notice to the Borrower by any Lender shall be effective as to each Eurodollar Loan, if lawful, on the last day of the
Interest Period currently applicable to such Eurodollar Loan; in all other cases such notice shall be effective on the date of receipt by the Borrower. 




        SECTION
2.14.    Indemnity.    The Borrower shall indemnify each Lender against any
out-of-pocket loss or expense which such Lender may sustain or incur as a consequence of (a) any failure by the Borrower to borrow or to refinance, convert or continue
any Loan hereunder after irrevocable notice 


20





 

of
such borrowing, refinancing, conversion or continuation has been given pursuant to Section 2.03 or 2.04, (b) any payment, prepayment or conversion, or an assignment required under
Section 2.19, of a Eurodollar Loan by the Borrower required by any other provision of this Agreement or otherwise made or deemed made on a date other than the last day of the Interest Period,
if any, applicable thereto, (c) any default by the Borrower in payment or prepayment of the principal amount of any Loan or any part thereof or interest accrued thereon, as and when due and
payable (at the due date thereof, whether by scheduled maturity, acceleration, irrevocable notice of prepayment or otherwise) or (d) the occurrence of any Event of Default. 


        In
the case of a Eurodollar Loan, such out-of-pocket loss or expense shall be limited to an amount equal to the excess, if any, of (i) its cost of
obtaining the funds for the
Loan being paid, prepaid, converted or not borrowed, converted or continued (based on the LIBO Rate applicable thereto) for the period from the date of such payment, prepayment, conversion or failure
to borrow, convert or continue to the last day of the Interest Period for such Loan (or, in the case of a failure to borrow, convert or continue, the Interest Period for such Loan which would have
commenced on the date of such failure) over (ii) the amount of interest that would be realized by the Lender in reemploying the funds so paid, prepaid, converted or not borrowed, converted or
continued for such period or Interest Period, as the case may be. In the case of an ABR Loan, such out-of-pocket loss or expense shall be limited to an amount equal to the
excess, if any, of (i) its cost of obtaining the funds for the ABR Loan being paid, prepaid, converted or not borrowed, converted or continued for the period from the date of such payment,
prepayment, conversion or failure to borrow, convert or continue to the next Business Day for such ABR Loan over (ii) the amount of interest that would be realized by the Lender in reemploying
the funds so paid, prepaid, converted or not borrowed, converted or continued until the next Business Day, as the case may be. 


        A
certificate of the Lender setting forth such amount or amounts (including the computation of such amount or amounts) as shall be necessary to compensate the Lender or its holding
company for the out-of-pocket expenses defined herein shall be delivered to the Borrower and such amount or amounts may be reviewed by the Borrower. If the Borrower, after
receipt of any such certificate from the Lender, disagrees in good faith with the Lender on the computation of the amount owed to the Lender pursuant to this Section 2.14, the Lender and the
Borrower shall negotiate in good faith to promptly resolve such disagreement. 


        Each
Lender shall have a duty to mitigate the damages to such Lender that may arise as a consequence of clause (a), (b), (c) or (d) above to the extent that such
mitigation will not, in the judgment of such Lender, entail any cost or disadvantage to such Lender that such Lender is not reimbursed or compensated for by the Borrower. 


        SECTION
2.15.    Pro Rata Treatment.    Except as required under Sections 2.09, 2.12, 2.13, 2.14, 2.18 and 2.19, each
Borrowing, each payment or prepayment of principal of any Borrowing, each payment of interest on the Loans, each payment of the Facility Fees, each reduction of the Commitments and each refinancing or
conversion of any Borrowing with a Borrowing of any Type, shall be allocated pro rata among the Lenders in accordance with their respective Commitments (or, if such Commitments shall have expired or
been terminated, in accordance with the respective principal amounts of their outstanding Loans). Each Lender agrees that in computing such Lender's portion of any Borrowing to be made hereunder, the
Agent may, in its discretion, round each Lender's percentage of such Borrowing to the next higher or lower whole dollar amount. 


        SECTION
2.16.    Sharing of Setoffs.    Each Lender agrees that if it shall, through the exercise of a right of
banker's lien, setoff or counterclaim against the Borrower, or pursuant to a secured claim under Section 506 of Title 11 of the United States Code or other security or interest arising from, or
in lieu of, such secured claim, received by such Lender under any applicable bankruptcy, insolvency or other similar law or otherwise, or by any other means, obtain payment (voluntary or involuntary)
in 


21





 



respect
of any Loan or Loans as a result of which the unpaid principal portion of the Loans of such Lender shall be proportionately less than the unpaid principal portion of the Loans of any other
Lender, it shall be deemed simultaneously to have purchased from such other Lender at face value, and shall promptly pay to such other Lender the purchase price for, a participation in the Loans of
such other Lender, so that the aggregate unpaid principal amount of the Loans and participations in the Loans held by each Lender shall be in the same proportion to the aggregate unpaid principal
amount of all Loans then outstanding as the principal amount of its Loans prior to such exercise of banker's lien, setoff or counterclaim or other event was to the principal amount of all Loans
outstanding prior to such exercise of banker's lien, setoff or counterclaim or other event; provided,  however, that, if any such purchase or purchases or
adjustments shall be made pursuant to this Section 2.16 and the payment giving rise thereto
shall thereafter be recovered, such purchase or purchases or adjustments shall be rescinded to the extent of such recovery and the purchase price or prices or adjustment restored without interest. The
Borrower expressly consents to the foregoing arrangements and agrees that any Lender holding a participation in a Loan deemed to have been so purchased may exercise any and all rights of banker's
lien, setoff or counterclaim with respect to any and all moneys owing by the Borrower to such Lender by reason thereof as fully as if such Lender had made a Loan directly to the Borrower in the amount
of such participation. 


        SECTION
2.17.    Payments.    (a) The Borrower shall make each payment (including principal of or interest on
any Borrowing or any Fees or other amounts) hereunder from an account in the United States not later than 12:00 noon, New York City time, on the date when due in dollars to the Agent at its offices at
388 Greenwich Street, New York, NY 10013, in immediately available funds. 



        (b)   Whenever
any payment (including principal of or interest on any Borrowing or any Fees or other amounts) hereunder shall become due, or otherwise would occur, on a day
that is not a Business Day, such payment may be made on the next succeeding Business Day, and such extension of time shall in such case be included in the computation of interest or Fees, if
applicable. 




        SECTION
2.18.    Taxes.    (a) Any and all payments by the Borrower hereunder shall be made, in accordance
with Section 2.17, free and clear of and without deduction for any and all present or future taxes, levies, imposts, deductions, charges or withholdings, and all liabilities with respect
thereto imposed by the United States or any political subdivision or taxing authority thereof, excluding taxes imposed on the Agent's or any Lender's (or any transferee's or assignee's, including a
participation holder's (any such entity a "Transferee")) net income and franchise taxes imposed on the Agent or any Lender (or Transferee) by the United States or any political subdivision or taxing
authority thereof (all such nonexcluded taxes, levies, imposts, deductions, charges, withholdings and liabilities being hereinafter referred to as "Taxes"). If the Borrower shall be required by law to
deduct any Taxes from or in respect of any sum payable hereunder to any Lender (or any Transferee) or the Agent, (i) the sum
payable shall be increased by the amount necessary so that after making all required deductions (including deductions applicable to additional sums payable under this Section 2.18) such Lender
(or Transferee) or the Agent (as the case may be) shall receive an amount equal to the sum it would have received had no such deductions been made, (ii) the Borrower shall make such deductions
and (iii) the Borrower shall pay the full amount deducted to the relevant taxing authority or other Governmental Authority in accordance with applicable law. 



        (b)   In
addition, the Borrower agrees to pay any present or future stamp or documentary taxes or any other excise or property taxes, charges or similar levies which arise
from any payment made hereunder or from the execution, delivery or registration of, or otherwise with respect to, this Agreement imposed by the United States or any political subdivision or taxing
authority thereof (hereinafter referred to as "Other Taxes"). 



22





 

        (c)   The
Borrower will indemnify each Lender (or Transferee) and the Agent for the full amount of Taxes and Other Taxes (including any Taxes or Other Taxes on amounts payable
under this Section 2.18) paid by such Lender (or Transferee) or the Agent, as the case may be, with respect to the Borrower and any liability (including penalties, interest and reasonable
out-of-pocket expenses) arising therefrom or with respect thereto (other than any such liability that results from the gross negligence or willful misconduct of the Lender (or
Transferee) or Agent), whether or not such Taxes or Other Taxes were correctly or legally asserted by the relevant taxing authority or other Governmental Authority. Such indemnification shall be made
within 30 days after the date any Lender (or Transferee) or the Agent, as the case may be, makes written demand therefor. If the Borrower or any Lender (or Transferee) or the Agent shall
determine that Taxes or Other Taxes may not have been correctly or legally assessed by the relevant taxing authority or other Governmental Authority, and that a Lender (or Transferee) or the Agent may
be entitled to receive a refund in respect of Taxes or Other Taxes, it shall promptly notify the other party of the availability of such refund and such Lender (or Transferee) or the Agent shall,
within 60 days after receipt of a request by the Borrower, apply for such refund at the Borrower's expense. If any Lender (or Transferee) or the Agent receives a refund or credit or offset
against another tax liability in respect of any Taxes or Other Taxes for which such Lender (or Transferee) or the Agent has received payment from the Borrower hereunder it shall promptly repay such
refund or credit or offset against another tax liability (including any interest received by such Lender (or Transferee) or the Agent from the taxing authority with respect to the refund with respect
to such Taxes or Other Taxes) to the Borrower, net of all out-of-pocket expenses of such Lender; provided that the Borrower,
upon the request of such Lender (or Transferee) or the Agent, agrees to return such refund or credit or offset against another tax liability (plus penalties, interest or other charges) to such Lender
(or Transferee) or the Agent in the event such Lender (or Transferee) or the Agent is required to repay such refund or credit or offset against another tax liability. For purposes of the preceding
sentence, the Agent or any Lender shall determine in good faith and in its discretion the amount of any credit or offset against another tax liability and shall be under no obligation to make
available to the Borrower any of its tax returns or any other information that it deems to be confidential. 


        (d)   As
soon as practicable after the date of any payment of Taxes or Other Taxes withheld by the Borrower in respect of any payment to any Lender (or Transferee) or the
Agent, the Borrower will furnish to the Agent, at its address referred to in Section 8.01, the original or a certified copy of a receipt evidencing payment thereof. 



        (e)   Without
prejudice to the survival of any other agreement contained herein, the agreements and obligations contained in this Section 2.18 shall survive the payment
in full of the principal of and interest on all Loans made hereunder. 


        (f)    Each
Lender (or Transferee) which is organized outside the United States shall, prior to the due date of the first payment by the Borrower to such Lender (or Transferee)
hereunder, deliver to the Borrower such certificates, documents or other evidence, as required by the Code or Treasury Regulations issued pursuant thereto, including Internal Revenue Service
Form W-8BEN or Form W-8ECI and any other certificate or statement of exemption required by Treasury Regulation Section 1.1441-1(a) or
Section 1.1441-6(c) or any subsequent version thereof, properly completed and duly executed by such Lender (or Transferee) establishing that such payment is (i) not subject
to withholding under the Code because such payment is effectively connected with the conduct by such Lender (or Transferee) of a trade or business in the United States or (ii) totally exempt
from United States tax under a provision of an applicable tax treaty. Each such Lender (or Transferee) that changes its funding office shall promptly notify the Borrower of such change and, upon
written request from the Borrower, shall deliver any new certificates, documents or other evidence required pursuant to the preceding sentence prior to the immediately following 



23





 




due
date of any payment by the Borrower hereunder. Unless the Borrower and the Agent have received forms or other documents satisfactory to them indicating that payments hereunder are not subject to
United States withholding tax, notwithstanding paragraph (a), the Borrower or the Agent shall withhold taxes from such payments at the applicable statutory rate in the case of payments to or
for any Lender (or Transferee) organized under the laws of a jurisdiction outside the United States. 


        (g)   The
Borrower shall not be required to pay any additional amounts to any Lender (or Transferee) in respect of Taxes and Other Taxes pursuant to paragraphs (a),
(b) and (c) above if the obligation to pay such additional amounts would not have arisen but for a failure by such Lender (or Transferee) to comply with the provisions of
paragraph (f) above unless such Lender (or Transferee) is unable to comply with paragraph (f) because of (i) a change in applicable law, regulation or official interpretation
thereof or (ii) an amendment, modification or revocation of any applicable tax treaty or a change in official position regarding the application or interpretation thereof, in each case after
the date hereof (and, in the case of a Transferee, after the date of assignment or transfer). 


        (h)   Any
Lender (or Transferee) claiming any additional amounts payable under this Section 2.18 shall (i) to the extent legally able to do so, file any
certificate or document if such filing would avoid the need for or reduce the amount of any such additional amounts which may thereafter accrue, and the Borrower shall not be obligated to pay such
additional amounts if, any Lender (or Transferee) could
have filed such certificate or document and failed to do so; or (ii) consistent with legal and regulatory restrictions, use reasonable efforts to change the jurisdiction of its applicable
lending office if the making of such change would avoid the need for or reduce the amount of any additional amounts which may thereafter accrue and would not, in the sole determination of such Lender
(or Transferee), be otherwise disadvantageous to such Lender (or Transferee). 




        SECTION
2.19.    Mandatory Assignment; Commitment Termination.    In the event any Lender delivers to the Agent or the
Borrower, as appropriate, a certificate in accordance with Section 2.12(c) or a notice in accordance with Section 2.09 or 2.13 or is a Defaulting Lender, or the Borrower is required to
pay any additional amounts or other payments in accordance with Section 2.18, the Borrower may, at its own expense, and in its sole discretion (a) require such Lender to transfer and
assign in whole or in part, without recourse (in accordance with Section 8.04), all or part of its interests, rights and obligations under this Agreement to an assignee acceptable to the Agent
which shall assume such assigned obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided that (i) such
assignment shall not conflict with any law, rule or regulation or order of any court or other Governmental Authority and (ii) the Borrower or such assignee shall have paid to the assigning
Lender in immediately available funds the principal of and interest accrued to the date of such payment on the Loans made by it hereunder and all other amounts owed to it hereunder or
(b) terminate the Commitment of such Lender and prepay all outstanding Loans of such Lender; provided that (x) such termination of the
Commitment of such Lender and prepayment of Loans does not conflict with any law, rule or regulation or order of any court or Governmental Authority, (y) the Borrower shall have paid to such
Lender in immediately available funds the principal of and interest accrued to the date of such payment on the Loans made by it hereunder and all other amounts owed to it hereunder and (z) the
Borrower shall have paid to the Agent a processing and recordation fee of $3,500 if such assignee is not an existing Lender. 


24





 
ARTICLE III  


 Representations and Warranties  


        The Borrower represents and warrants to each of the Lenders that: 



        SECTION
3.01.    Organization; Powers.    It (a) is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization, (b) has all requisite power and authority to own its property and assets and to carry on its business as now conducted and as
proposed to be conducted, (c) is qualified to do business in every jurisdiction where such qualification is required, except where the failure so to qualify would not result in a Material
Adverse Effect, and (d) has the corporate power and authority to execute, deliver and perform its obligations under this Agreement and to borrow funds hereunder. 



        SECTION
3.02.    Authorization.    The execution, delivery and performance by it of this Agreement and the Borrowings
by it hereunder (collectively, the "Transactions") (a) have been duly authorized by all requisite corporate actions and (b) will not (i) violate (A) any provision of any
law, statute, rule or regulation (including, without limitation, the Margin Regulations) or of its certificate of incorporation or other constitutive documents or by-laws, (B) any
order of any Governmental Authority or (C) any provision of any indenture, agreement or other instrument to which it is a party or by which it or any of its property is or may be bound,
(ii) be in conflict with, result in a breach of or constitute (alone or with notice or lapse of time or both) a default under any such indenture, agreement or other instrument or
(iii) result in the creation or imposition of any lien upon any of its property or assets. 


        SECTION
3.03.    Enforceability.    This Agreement has been duly executed and delivered by it and constitutes its
legal, valid and binding obligation enforceable against it in accordance with its terms. 


        SECTION
3.04.    Governmental Approvals.    No action, consent or approval of, registration or filing with or any
other action by any Governmental Authority is or will be required in connection with the Transactions. 


        SECTION
3.05.    Financial Statements.    (a) The Borrower has heretofore furnished to the Agent and the
Lenders copies of its consolidated financial statements as of and for (i) the fiscal year ended September 30, 2002 as included in the Borrower's Annual Report on
Form 10-K filed with the Securities and Exchange Commission on December 23, 2002 (the "2002 Form 10-K") and (ii) the quarter ended
December 31, 2002, and included in the Borrower's Quarterly Report on Form 10-Q filed February 12, 2003. Such financial statements present fairly, in all material
respects, the consolidated financial condition of the Borrower as of such date and for such periods in accordance with GAAP. 



        (b)   Except
as disclosed in the Borrower's 2002 Form 10-K and the Borrower's Quarterly Report on Form 10-Q dated February 12,
2003 and each of the Borrower's Form 8-Ks filed on March 19, 2003, March 28, 2003 and April 24, 2003, there has been no material adverse change in the
consolidated business, assets, operations or condition, financial or otherwise, of the Borrower and its Subsidiaries taken as a whole since September 30, 2002. For purposes of this
representation a change in the Public Debt Rating of the Borrower shall not constitute a material adverse change. 




        SECTION
3.06.    Litigation; Compliance with Laws.    (a) (i) There are no actions or proceedings
filed or (to its knowledge) investigations pending or threatened against it in any court or before any Governmental Authority or arbitration board or tribunal which question the validity,
enforceability or legality of or seek damages in connection with this Agreement, the Transactions or any action taken or to be taken pursuant to this Agreement and no order or judgment has been issued
or entered restraining or enjoining it from the execution, delivery or performance of this Agreement nor is there any action or proceeding which involves a probable risk of an adverse determination
which would have any such effect; (ii) nor is there any other action or proceeding filed or (to its knowledge) investigation 


25





 

pending
or threatened against it in any court or before any Governmental Authority or arbitration board or tribunal which involves a probable risk of a material adverse decision which would result in
a Material Adverse Effect except as provided in the Borrower's Quarterly Report on Form 10-Q for the fiscal quarter ended December 31, 2002 and the Borrower's Current Report
on Form 8-K filed on March 28, 2003, or materially restrict the ability of it to comply with its obligations under this Agreement. 



        (b)   Neither
it nor any of its subsidiaries is in violation of any law, rule or regulation, or in default with respect to any judgment, writ, injunction or decree of any
Governmental Authority, where such violation or default could result in a Material Adverse Effect except as provided in the Borrower's Quarterly Report on Form 10-Q for the fiscal
quarter ended December 31, 2002 and the Borrower's Current Report on Form 8-K filed on March 28, 2003. 




        SECTION
3.07.    Federal Reserve Regulations.    (a) Neither it nor any of its subsidiaries is engaged
principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying Margin Stock. 



        (b)   No
part of the proceeds of any Loan will be used, whether directly or indirectly, and whether immediately, incidentally or ultimately, for any purpose which entails a
violation of, or which is inconsistent with, the provisions of the Margin Regulations. 




        SECTION
3.08.    Investment Company Act; Public Utility Holding Company Act.    Neither it nor any of its subsidiaries
is (a) an "investment company" as defined in, or subject to regulation under, the Investment Company Act of 1940 or (b) a "holding company" as defined in, or subject to regulation under,
the Public Utility Holding Company Act of 1935. 


        SECTION
3.09.    Use of Proceeds.    All proceeds of the Loans shall be used for general corporate purposes of the
Borrower, including refunding of debt, support for commercial paper and acquisition financing. 



        SECTION
3.10.    No Material Misstatements.    No report, financial statement or other written information furnished
by it or on its behalf to the Agent or any Lender pursuant to Section 3.05 or Section 5.02 hereof contains as of the date hereof in the case of Section 3.05, or will contain as of
the date furnished in the case of Section 5.02, any material misstatement of fact or omits or will omit to state any material fact necessary to make the statements therein, in the light of the
circumstances under which they were or will be made, not misleading. 


        SECTION
3.11.    Solvency.    The Borrower is, individually and together with its Subsidiaries, Solvent.
"Solvent" means, with respect to any Person on a particular date, that on such date (i) the fair value of the property of such Person is greater
than the total amount of liabilities, including, without limitation, contingent liabilities, of such Person, (ii) the present fair salable value of the assets of such Person is not less than
the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured, (iii) such Person does not intend to, and does not believe that
it will, incur debts or liabilities beyond such Person's ability to pay such debts and liabilities as they mature and (iv) such Person is not engaged in business or a transaction, and is not
about to engage in business or a transaction, for which such Person's property would constitute an unreasonably small capital. The amount of contingent liabilities at any time shall be computed as the
amount that, in the light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability. 


26





 


ARTICLE IV  


 Conditions of Lending  


        The obligations of the Lenders to make Loans hereunder are subject to the satisfaction of the following conditions: 



        SECTION
4.01.    All Borrowings.    On the date of each Borrowing: 



        (a)   The
Agent shall have received a notice of such Borrowing as required by Section 2.03. 


        (b)   The
representations and warranties set forth in the Loan Documents shall be true and correct in all material respects on and as of the date of such Borrowing with the
same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier
date; provided that the representation and warranty in Section 3.11 shall only be made upon the Closing Date. 


        (c)   The
Borrower shall be in compliance with all the terms and provisions set forth herein in all material respects, and at the time of and immediately after such Borrowing
no Event of Default or Default shall have occurred and be continuing. 




Each
Borrowing shall be deemed to constitute a representation and warranty by the Borrower on the date of such Borrowing as to the matters specified in paragraphs (b) and (c) of this
Section 4.01. 


        SECTION
4.02.    Closing Date.    On the Closing Date: 



        (a)   The
Agent shall have received a favorable written opinion of (i) a corporate counsel of the Borrower, dated the Closing Date and addressed to the Lenders, to the
effect set forth in Exhibit D hereto and (ii) Shearman & Sterling, counsel for the Agent, in form and substance satisfactory to the Agent. 


        (b)   The
Agent shall have received (i) a long form certificate as to the certificate of incorporation, including all amendments thereto, of the Borrower as of a recent
date by the Secretary of State of the state of incorporation of the Borrower and a certificate as to the good standing of the Borrower as of a recent date, from such Secretary of State; (ii) a
certificate of the Secretary or an Assistant Secretary of the Borrower dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws of
the Borrower as in effect on the Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below except for any changes specified in such
certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors of the Borrower authorizing the execution, delivery and performance of
this Agreement and the Borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate of incorporation
of the Borrower has not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above, and (D) as to the
incumbency and specimen signature of each officer executing this Agreement or any other document delivered in connection herewith on behalf of the Borrower; and (iii) a certificate of another
officer of the Borrower as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) above. 


        (c)   The
Agent shall have received a certificate from the Borrower, dated the Closing Date and signed by a Financial Officer of the Borrower confirming compliance with the
conditions precedent set forth in paragraphs (b) and (c) of Section 4.01. 


        (d)   The
Agent shall have received any Fees and other amounts due and payable on or prior to the Closing Date. 



27





 




ARTICLE V  


 Covenants  


        The Borrower covenants and agrees as to itself and with each Lender and the Agent that so long as this Agreement shall remain in effect or the principal of or
interest on any Loan, any Fees or any other expenses or amounts payable hereunder shall be unpaid unless the Required Lenders shall otherwise consent in writing: 


        SECTION
5.01.    Existence.    It will do or cause to be done all things necessary to preserve, renew and keep in full
force and effect its legal existence, except as otherwise expressly permitted under Section 5.06. 



        SECTION
5.02.    Financial Statements, Reports, Etc..    It will furnish to the Agent and each Lender: 



        (a)   within
105 days after the end of each fiscal year, its consolidated balance sheets and the related statements of income and cash flows, showing its consolidated
financial condition as of the close of such fiscal year and the consolidated results of its operations during such year, all audited by PricewaterhouseCoopers LLC or other independent auditors of
recognized national standing and accompanied by an opinion of such auditors to the effect that such consolidated financial statements fairly present in all material respects its financial condition
and results of operations on a consolidated basis in accordance with GAAP consistently applied; 


        (b)   within
60 days after the end of each of the first three fiscal quarters of each fiscal year, its consolidated balance sheets and related statements of income and
cash flows, showing its consolidated financial condition as of the close of such fiscal quarter and the consolidated results of its operations during such fiscal quarter and the then elapsed portion
of such fiscal year, all certified by one of its Financial Officers as fairly presenting in all material respects its financial condition and results of operations on a consolidated basis in
accordance with GAAP consistently applied, subject to normal year-end audit adjustments; 


        (c)   concurrently
with any delivery of financial statements under paragraph (a) above, a certificate of a Financial Officer (i) certifying that no Event of
Default or Default has occurred and is continuing or, if such an Event of Default or Default has occurred and is continuing, specifying the nature and extent thereof and any corrective action taken or
proposed to be taken with respect thereto and (ii) setting forth in reasonable detail the calculations necessary to demonstrate compliance with Section 5.08 and 5.09; 



        (d)   promptly
after the same become publicly available, copies of all reports filed by it with the SEC (other than reports on Form 8-K which are filed
solely for the purpose of filing exhibits), or any Governmental Authority succeeding to any of or all the functions of the SEC, or distributed to its shareholders, as the case may be; 


        (e)   not
later than October 4, 2003, a certificate of a Financial Officer setting forth in reasonable detail the calculations necessary to demonstrate compliance with
Section 5.21; and 


        (f)    promptly
after a Financial Officer becomes aware thereof, notice of each Default or Event of Default that is continuing, specifying the nature and extent thereof and any
corrective action taken or proposed to be taken with respect thereto. 




        Reports
and financial statements required to be delivered by the Borrower pursuant to paragraphs (a), (b) and (d) of this Section 5.02 shall be deemed to have been
delivered on the date on which it posts such reports, or reports containing such financial statements, on its website on the Internet at www.avaya.com or when such reports, or reports containing such
financial statements are posted on the SEC's website at www.sec.gov; provided that it shall deliver paper copies of the reports and financial 


28





 

statements
referred to in paragraphs (a), (b) and (d) of this Section 5.02 to the Agent or any Lender who requests it to deliver such paper copies until written notice to cease
delivering paper copies is given by the Agent or such Lender; and provided further that in every instance it shall provide paper copies of the
certificate required by subsection (c) to the Agent and each of the Lenders until such time as the Agent shall provide it written notice otherwise. 



        SECTION
5.03.    Maintaining Records.    It will record, summarize and report all financial information in accordance
with GAAP. 


        SECTION
5.04.    Use of Proceeds.    It will use the proceeds of the Loans only for the purposes set forth in
Section 3.09. 


        SECTION
5.05.    Compliance with Laws, Etc..    It will comply in all material respects with all applicable laws,
rules, regulations and orders, such compliance to include, without limitation, compliance with ERISA and Environmental Laws. 


        SECTION
5.06.    Consolidations, Mergers, and Sales of Assets.    It will not merge or consolidate with or into, or
convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to, any
Person, except that the Borrower may merge or consolidate with any other Person so long as (a) the Borrower is the surviving corporation, or (b) if the Borrower is not the surviving
corporation, (i) the surviving corporation expressly assumes the obligations of the Borrower under this Agreement and the Notes and (ii) the surviving corporation has a Public Debt
Rating of not lower than BBB- from S&P and Baa3 from Moody's, provided, in each case, that no Default or Event of Default would result
therefrom. 


        SECTION
5.07.    Limitations on Liens.    The Borrower will not create or suffer to exist, or permit any of its
Material Subsidiaries to create or suffer to exist, any Lien on or with respect to any of its properties, whether now owned or hereafter acquired, or assign, or permit any of its Material Subsidiaries
to assign, any right to receive income, other than: 



          (i)  Permitted
Liens; 


         (ii)  Liens
existing on September 25, 2000 securing Debt of the Borrower or its Material Subsidiaries outstanding on such date; 


        (iii)  purchase
money Liens upon or in or conditional sales agreements or other title retention agreements with respect to, real property or equipment acquired or held by the
Borrower or any of its Material Subsidiaries in the ordinary course of business to secure the purchase price of such property or equipment or to secure Debt incurred solely for the purpose of
financing the acquisition, construction or improvement of any such property or equipment to be subject to such Liens (including any Liens placed on such property or equipment within 180 days
after the latest of the acquisition, completion of construction or improvement of such property), or Liens existing on any such property or equipment at the time of acquisition (other than any such
Liens created in contemplation of such acquisition that do not secure the purchase price), or extensions, renewals, refundings or replacements of any of the foregoing for the same or a lesser amount;  provided,
however, that no such Lien shall extend to or cover any property other than the property or equipment being acquired, constructed or improved,
and no such extension, renewal, refunding or replacement shall extend to or cover any property not theretofore subject to the Lien being extended, renewed, refunded or replaced (except to the extent
of financed construction or improvement); 



29











  



        (iv)  Liens
(including financing statements and undertakings to file financing statements) arising solely from precautionary filings of financing statements under the Uniform
Commercial Code of the applicable jurisdiction in respect of equipment leases under which the Borrower or any of its Material Subsidiaries is the lessee;  provided that any such Lien in respect of any
equipment lease is limited to the equipment being leased under such lease and the proceeds thereof; 



         (v)  any
Lien existing on any asset of any corporation at the time such corporation becomes a Material Subsidiary and not created in contemplation of such event; 


        (vi)  any
Lien on any asset of any corporation existing at the time such corporation is merged or consolidated with or into the Borrower or a Material Subsidiary and not
created in contemplation of such event; 


       (vii)  any
Lien existing on any asset prior to the acquisition thereof by the Borrower or a Material Subsidiary and not created in contemplation of such acquisition; 



      (viii)  synthetic
leases in effect as of the Amendment No. 2 Effective Date; 


        (ix)  Liens
not otherwise permitted by the foregoing clauses of this definition securing Debt of the Borrower or its Material Subsidiaries in an aggregate principal amount at
any time outstanding not to exceed $75,000,000; 


         (x)  any
Lien arising out of the refinancing, extension, renewal or refunding of any Debt secured by any Lien permitted by any of the foregoing clauses of this Section,
provided that (x) such Debt is not secured by any additional assets, and (y) the amount of such Debt secured by any such Lien is not increased; 


        (xi)  Liens
created under the Collateral Documents; and 


       (xii)  Liens
securing Debt permitted by Section 5.17(i)(B) and (ii)(C). 




        SECTION
5.08.    Interest Coverage Ratio.    It will maintain a ratio of Consolidated EBITDA of the Borrower and its
Subsidiaries to interest expense for the period consisting of the previous four consecutive fiscal quarters by the Borrower and its Subsidiaries of not less than the ratios set forth below for periods
indicated: 



	Fiscal Quarter Ended
 
	 	Ratio

	March 31, 2003 through June 30, 2003	 	2.50 to 1
	September 30, 2003	 	2.70 to 1
	December 31, 2003	 	2.90 to 1
	March 31, 2004	 	3.20 to 1
	June 30, 2004	 	3.50 to 1
	September 30, 2004 and thereafter	 	4.00 to 1






provided, that the ratios set forth above shall be deemed to be reduced (i) by 0.20 for the fiscal quarter in which the Borrower's Connectivity
Solutions business is sold, (ii) by 0.40 for the fiscal quarter following the fiscal quarter referred to in clause (i) above, (iii) by 0.60 for the fiscal quarter following the
fiscal quarter referred to in clause (ii) above and (iv) by 0.80 for each fiscal quarter thereafter. 



30





 

        SECTION
5.09.    Minimum EBITDA.    It will maintain, as of the end of each period set forth below, Consolidated
EBITDA of the Borrower and its Subsidiaries of not less than the amount set forth below for such period: 



	Period
 
	 	Minimum EBITDA

	Four quarters ending June 30, 2003	 	$	190,000,000
	Four quarters ending September 30, 2003	 	$	220,000,000
	Four quarters ending December 31, 2003	 	$	230,000,000
	Four quarters ending March 31, 2004	 	$	270,000,000
	Four quarters ending June 30, 2004	 	$	300,000,000
	Four quarters ending September 30, 2004	 	$	330,000,000
	Rolling four quarter periods thereafter	 	$	350,000,000






provided, that the Minimum EBITDA amounts set forth above shall be deemed to be reduced (i) by $15,000,000 for the fiscal quarter in which the
Borrower's Connectivity Solutions business is sold, (ii) by $30,000,000 for the fiscal quarter following the fiscal quarter referred to in clause (i) above, (iii) by $45,000,000
for the fiscal quarter following the fiscal quarter referred to in clause (ii) above and (iv) by $60,000,000 for each fiscal quarter thereafter. 




        SECTION
5.10.    Visitation Rights.    At any reasonable time and from time to time, upon reasonable prior notice, it
will permit the Agent or any of the Lenders or any agents or representatives thereof, to examine and make copies of and abstracts from the records and books of account of, and visit the properties of,
the Borrower and any of its Subsidiaries, and to discuss the affairs, finances and accounts of the Borrower and any of its Subsidiaries with any financial officers and, upon reasonable prior to notice
to the Borrower and subject to the right of a financial officer to be present during such discussions, with their independent certified public accountants;  provided, that unless an Event of Default
shall have occurred and is continuing, each of the Agent and the Lenders may take such actions only once
during any fiscal quarter of the Borrower. 


        SECTION
5.11.    Maintenance of Properties, Etc.    It will maintain and preserve, and cause each of its Subsidiaries
to maintain and preserve, all of its material properties that are material to the conduct of its business taken as a whole in good working order and condition, ordinary wear and tear excepted;  provided,
however, that nothing in this Section 5.11 shall prevent the Borrower or any such
Subsidiary
from discontinuing the operation or maintenance of any property if such discontinuance is in the judgment of the Borrower desirable in the conduct of its business or the business of such Subsidiary. 



        SECTION
5.12.    Maintenance of Insurance.    It will maintain, and cause each of its Subsidiaries to maintain,
insurance with responsible and reputable insurance companies or associations in such amounts and covering such risks as is usually carried by companies engaged in similar businesses and owning similar
properties in the same general areas in which the Borrower or such Subsidiary operates; provided,  however, that (i) the Borrower and its Subsidiaries
may self-insure to the same extent as other companies engaged in similar
businesses and owning similar properties in the same general areas in which the Borrower or such Subsidiary operates and to the extent consistent with prudent business practice and
(ii) insurance coverage against terrorist acts shall be required only so long as such coverage is available on commercially reasonable terms. 


        SECTION
5.13.    Payment of Taxes, Etc.    It will pay and discharge, and cause each of its Subsidiaries to pay and
discharge, before the same shall become delinquent, (i) all taxes, assessments and governmental charges or levies imposed upon it or upon its property and (ii) all lawful claims, in each
case, that, if unpaid, could reasonably be expected to result in a Material Adverse Effect; provided,  however, that neither the Borrower nor any of its
Subsidiaries shall be required to pay or discharge any such tax, assessment, charge or claim that is
being contested in good faith and by proper proceedings 


31





 



and
as to which appropriate reserves are being maintained so long as the failure to so pay or discharge could not reasonably be expected to result in a Material Adverse Effect. 


        SECTION
5.14.    Transactions with Affiliates.    It will conduct, and cause each of its Subsidiaries to conduct, all
transactions otherwise permitted under this Agreement with any of their Affiliates on terms that are fair and reasonable and no less favorable to the Borrower or such Subsidiary than it would obtain
in a comparable arm's-length transaction with a Person not an Affiliate; provided, that the foregoing shall not apply to transactions between the
Borrower and its Subsidiaries or the Warburg Transactions. 


        SECTION
5.15.    Covenant to Guarantee Obligations and Give Security.    At any time during the Security Period, it
will upon (x) the request of the Agent following the occurrence and during the continuance of a Default or an Event of Default, (y) the formation or acquisition of any new direct or
indirect domestic Material Subsidiaries by any Loan Party or (z) the acquisition of any material property by any Loan Party, and such property, in the judgment of the Agent, shall not already
be subject to a perfected first priority security interest in favor of the Collateral Trustee for the benefit of the Secured Parties, then the Borrower shall, in each case at the Borrower's expense: 



          (i)  in
connection with the formation or acquisition of a domestic Material Subsidiary, within 10 days after such formation or acquisition, cause each such
Subsidiary, and cause each direct and indirect domestic parent of such Subsidiary (if it has not already done so), to duly execute and deliver to the Agent a
guaranty or guaranty supplement, in form and substance reasonably satisfactory to the Agent, guaranteeing the other Loan Parties' obligations under the Loan Documents, 



         (ii)  within
15 days after such request, formation or acquisition, duly execute and deliver, and cause each such Subsidiary and each direct and indirect domestic
parent of such Subsidiary (if it has not already done so) to duly execute and deliver, to the Collateral Trustee, pledges, assignments, security agreement supplements, intellectual property security
agreement supplements and other security agreements, as specified by and in form and substance reasonably satisfactory to the Agent, securing payment of all the obligations of the applicable Loan
Party, such Subsidiary or such parent, as the case may be, under the Loan Documents and constituting Liens on all such properties, provided that no real
property shall be subjected to a security interest in favor of the Collateral Trustee for the benefit of the Secured Parties, 



        (iii)  within
30 days after such request, formation or acquisition, take, and cause such Subsidiary or such parent to take, whatever action (including, without
limitation, the filing of Uniform Commercial Code financing statements, the giving of notices and the endorsement of notices on title documents) may be reasonably necessary or advisable in the opinion
of the Agent to vest in the Collateral Trustee (or in any representative of the Collateral Trustee designated by them) valid and subsisting Liens on the properties purported to be subject to the
pledges, assignments, security agreement supplements, intellectual property security agreement supplements and security agreements delivered pursuant to this Section 5.15, enforceable against
all third parties in accordance with their terms, 


        (iv)  within
60 days after such request, formation or acquisition, deliver to the Agent, upon the request of the Agent in its sole discretion, a signed copy of a
favorable opinion, addressed to the Agent and the other Secured Parties, of counsel for the Loan Parties reasonably acceptable to the Agent as to the matters contained in clauses (i), (ii) and
(iii) above, as to such guaranties, guaranty supplements, pledges, assignments, security agreement supplements, intellectual property security agreement supplements and security agreements
being legal, valid and binding obligations of each Loan Party party thereto enforceable in accordance with their terms, as to the matters contained in clause (iii) above, as to such recordings,
filings, notices, endorsements and other actions being sufficient to create valid perfected Liens on such properties to the extent a Lien can be created by 



32





 




filing
under the Uniform Commercial Code, and as to such other matters as the Agent may reasonably request, 


         (v)  at
any time and from time to time, promptly execute and deliver any and all further instruments and documents and take all such other action as the Agent may deem
necessary or desirable in obtaining the full benefits of, or in perfecting and preserving the Liens of, such guaranties, pledges, assignments, security agreement supplements, intellectual property
security agreement supplements and security agreements. 




        SECTION
5.16.    Further Assurances.    (i) It will promptly upon request by the Agent, or any Lender through
the Agent, correct, and cause each of its Subsidiaries promptly to correct, any material defect or error that may be discovered in any Loan Document or in the execution, acknowledgment, filing or
recordation thereof, and 



         (ii)  It
will promptly upon request by the Agent, do, execute, acknowledge, deliver, record, re-record, file, re-file, register and
re-register any and all such further acts, pledge agreements, assignments, financing statements and continuations thereof, termination statements, notices of assignment, transfers,
certificates, assurances and other instruments as the Agent may reasonably require from time to time in order to (A) carry out more effectively the purposes of the Loan Documents, (B) to
the fullest extent permitted by applicable law and during the Security Period, subject any Loan Party's or any of its domestic Subsidiaries' properties, assets, rights or interests to the Liens now or
hereafter intended to be covered by any of the Collateral Documents, (C) during the Security Period, to perfect and maintain the validity, effectiveness and priority of any of the Collateral
Documents and any of the Liens intended to be created thereunder and (D) to assure, convey, grant, assign, transfer, preserve, protect and confirm more effectively unto the Secured Parties the
rights granted or now or hereafter intended to be granted to the Secured Parties under any Loan Document or under any other instrument executed in connection with any Loan Document to which any Loan
Party or any of its Subsidiaries is or is to be a party, and cause each of its Subsidiaries to do so; provided, that nothing contained herein shall
require the Borrower or any Subsidiary to grant a security interest in the assets or property of any Excluded Subsidiary. 




        SECTION
5.17.    Debt.    It will not create, incur, assume or suffer to exist, or permit any of its Subsidiaries to
create, incur, assume or suffer to exist, any Debt, except: 



          (i)  in
the case of the Borrower, 



        (A)  Debt
outstanding on the Closing Date under the 11.125% Senior Secured Notes due April, 2009, and 


        (B)  Debt
issued in the capital markets, having a maturity no earlier than 90 days after the Maturity Date, shall have no mandatory prepayments, redemptions or
defeasements or be otherwise payable prior to 90 days after the Maturity Date and shall be in an aggregate principal amount not to exceed the sum of $200,000,000 and any over allotment thereof
at any time outstanding, provided such Debt is secured by a Lien on the Collateral that is junior to the Lien granted to the Lenders or is otherwise
subordinated on terms acceptable to the Required Lenders, and 




         (ii)  in
the case of the Borrower and its Subsidiaries, 



        (A)  Debt
under the Loan Documents, 


        (B)  Debt
outstanding on the Amendment No. 2 Effective Date and any Debt extending the maturity of, or refunding or refinancing, in whole or in part, any such Debt,  provided that the terms of any such
extending, refunding or refinancing Debt, and of any agreement entered into and of any instrument issued in
connection therewith, are otherwise permitted by the Loan Documents, provided further that the principal amount of such Debt shall not be 




33





 





increased
above the sum of (i) principal amount thereof outstanding immediately prior to such extension, refunding or refinancing, and (ii) any fees and expenses in connection therewith,
and the direct and contingent obligors therefor shall not be changed, as a result of or in connection with such extension, refunding or refinancing, 


        (C)  Debt
in an aggregate principal amount not to exceed $130,000,000 at any time outstanding secured by real property provided such debt matures no earlier than, and has no
mandatory prepayments, redemptions or defeasements or is otherwise payable prior to 90 days, after the Maturity Date, 



        (D)  Debt
of the Borrower to any Subsidiary of the Borrower or of any Subsidiary to the Borrower or any other Subsidiary of the Borrower, 


        (E)  Debt
permitted to be secured by Liens in accordance with Section 5.07(v), (vi) or (vii); 


        (F)  Debt
in respect of Hedge Agreements designed to hedge against fluctuations in interest rates or foreign exchange rates incurred in the ordinary course of business and in
accordance with prudent business practices, 


        (G)  Debt
in respect of trade letters of credit in an aggregate amount not to exceed $25,000,000 at any time outstanding, 



        (H)  Debt
arising under the Electronic Wire and Cable Product Purchase Agreement, as amended, and related agreements, between the Borrower and the Belden Communication
Division, a division of Belden line, and 


         (I)  other
Debt not to exceed in the aggregate $50,000,000 at any time outstanding. 





        SECTION
5.18.    Restricted Payments.    It will not declare or make any dividend payment or other distribution of
assets, properties, cash, rights, obligations or securities on account of any shares of any class of capital stock of the Borrower, or purchase, redeem or otherwise acquire for value (or permit any of
its Subsidiaries to do so) any shares of any class of capital stock of the Borrower or any warrants, rights or options to acquire any such shares, now or hereafter outstanding, except that, so long as
no Default or Event of Default shall have occurred and be continuing at the time of any action described below or would result therefrom, the Borrower may (i) declare and make any dividend
payment or other distribution payable in common stock of the Borrower, (ii) purchase, redeem or otherwise acquire shares of its common stock or warrants, rights or options to acquire any such
shares with the proceeds received from the substantially concurrent issue of new shares of its common stock or options or warrants convertible into common stock; (iii) declare or pay cash
dividends to the holders to its Series B convertible participating preferred stock and warrants and purchase, redeem or otherwise acquire shares of its Series B convertible participating
preferred stock or warrants, rights or options to acquire any such shares to the extent permitted by the terms of such Series B convertible participating preferred stock or pay cash dividends
in respect of equity interests received in exchange for shares of Series B convertible participating preferred stock, as described in clause (iv); and (iv) amend the terms of the
Series B convertible participating preferred stock or issue equity interests of the Borrower, provided,  however, that such amended terms or the terms
of such equity interests shall not provide for (i) mandatory redemption prior to 90 days
after the Maturity Date or (ii) the payment of cash dividends in an amount in excess of the amount of cash dividends that may be paid in respect of the Series B convertible participating
preferred stock based on the terms of the Series B convertible participating preferred stock as in effect on September 3, 2002. 


34





 

        SECTION
5.19.    Investments.    It will not make or hold, or permit any of its Subsidiaries to make or hold, any
Investment in any Person other than: 



          (i)  Investments
(other than Investments permitted by clause (iv) below) by the Borrower and its Subsidiaries in their Subsidiaries outstanding on the Amendment
No. 2 Effective Date and (x) additional Investments in an aggregate amount not to exceed $50,000,000 at any time outstanding in Subsidiaries that are not Subsidiary Guarantors and
(y) additional Investments in the Subsidiary Guarantors; 


         (ii)  loans
and advances to employees in the ordinary course of the business of the Borrower and its Subsidiaries as presently conducted in an aggregate principal amount not
to exceed $10,000,000 at any time outstanding; 


        (iii)  Investments
in Marketable Securities; 


        (iv)  Investments
consisting of intercompany Debt permitted under Section 5.17; 


         (v)  Investments
received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with customers and suppliers, in each
case, in the ordinary course of business; 


        (vi)  Investments
in joint ventures and other minority interests in an amount not to exceed $75,000,000 at any time outstanding; 



       (vii)  warrants
received from and minority equity interests in, customers of and vendors to the Borrower and its Subsidiaries so long as no cash is expended by the Borrower
or any of its Subsidiaries to purchase any of the foregoing; 


      (viii)  minority
interests received in connection with the sale or disposition of any assets of the Borrower; 


        (ix)  Investments
existing on the Amendment No. 2 Effective Date; 


         (x)  Investments
in the Borrower's Liquid Yield Option-TM- Notes due 2021 (the "LYONs") in an aggregate amount not to exceed $100,000,000 (which may
be increased by up to another $300,000,000 (a) by an amount equal to the Net Cash Proceeds of Debt issued in accordance with Section 5.17(i)(B) and equity interests of the Borrower sold
in the capital markets and (b) by an amount equal to 50% of the Net Cash Proceeds from the sale of the assets listed on Schedule 5.19),  provided that: (1) immediately before and after
giving effect thereto, no Default or Event of Default shall have occurred and be continuing or
would result therefrom; (2) no Loans are outstanding immediately before or immediately after making such Investment, (3) immediately before and after giving effect thereto, the Borrower
and its Subsidiaries have Unrestricted Domestic Cash and Marketable Securities in an aggregate amount of not less than $300,000,000 and (4) immediately after such Investment, the subject LYONs
shall be cancelled; and 


        (xi)  other
Investments in an aggregate amount invested not to exceed $50,000,000, provided that: (1) immediately
before and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing or would result therefrom; (2) any company or business acquired or invested in
pursuant to this clause (xi) shall be in the same line of business of the Borrower or any of its Subsidiaries or reasonably related thereto; (3) immediately after giving effect to the
acquisition of a company or business pursuant to this clause (xi), the Borrower shall be in pro forma compliance with Section 5.08, calculated based on the financial statements most
recently delivered to the Lenders pursuant to Section 5.02 and as though such acquisition had occurred at the beginning of the four-quarter period covered thereby, as evidenced by a
certificate of the Chief Financial Officer of the Borrower delivered to the Lenders demonstrating such compliance and (4) such Investments shall not be used for the purposes set forth in
clause (x) above. 



35





 





        SECTION
5.20.    Change in Nature of Business.    It will not make, or permit any of its Subsidiaries to make, any
material change in the nature of its business taken as a whole as carried on at the date hereof (other than changes that are reasonably related to such business). 


        SECTION
5.21.    Liquidity.    It will maintain, as of each day in the period commencing September 30, 2004
until the later of (a) the date that the put obligation under the LYONs is satisfied and (b) the date upon which the Borrower delivers the certificate required to be delivered pursuant
to Section 5.02(c) in respect of the fiscal quarter ended September 30, 2004, Liquidity of not less than $300,000,000 on a pro forma basis as if the put obligation under the LYONs had
been satisfied as of such day. "Liquidity" means the sum of the unused Total Commitment plus Unrestricted Domestic Cash and Marketable Securities held by the Borrower free and clear of any Liens other
than Liens under the Collateral Documents. 


        SECTION
5.22.    Prepayments, Etc. of Debt.    It will not (a prepay, redeem, purchase, defease or otherwise satisfy
prior to the scheduled maturity thereof in any manner, or make any payment in violation of any subordination terms of, any Debt, except (i) the prepayment of the Loans in accordance with this
Agreement and (ii) required repayments and redemptions of the LYONs or as otherwise permitted by Section 5.19(x), or (b) amend, modify or change in any manner any term or
condition of any Debt to shorten the maturity or amortization thereof to a date prior to December 31, 2005 or permit any of its Subsidiaries to do any of the foregoing other than to prepay any
Debt payable to the Borrower. 


ARTICLE VI  


 Events of Default  


        SECTION
6.01.    In case of the happening of any of the following events (each an "Event of Default"): 



         (a)  any
representation or warranty made or deemed made in or in connection with the execution and delivery of this Agreement or the Borrowings hereunder, shall prove to have
been false or misleading in any material respect when so made, deemed made or furnished; 


         (b)  default
shall be made in the payment of any principal of any Loan when and as the same shall become due and payable, whether at the due date thereof or at a date fixed
for prepayment thereof or by acceleration thereof or otherwise; 


         (c)  default
shall be made in the payment of any interest on any Loan or any Fee or any other amount (other than an amount referred to in paragraph (b) above) due
hereunder, when and as the same shall become due and payable, and such default shall continue unremedied for a period of five Business Days; 


         (d)  default
shall be made in the due observance or performance of any covenant, condition or agreement contained in Section 5.01, 5.02(e), 5.02(f), 5.04, 5.06, 5.07,
5.08, 5.09, 5.10, 5.14, 5.17, 5.18, 5.19, 5.20, 5.21 or 5.22; 


         (e)  default
shall be made in the due observance or performance of any covenant, condition or agreement contained herein (other than those specified in (b), (c) or
(d) above or (f) below) or in any other Loan Document and such default shall continue for a period of 30 days after notice thereof from the Agent or any Lender to the Borrower; 


          (f)  default
shall be made in the due observance or performance of covenants, conditions or agreements contained in Section 5.02 (a) through (d) and
such default shall continue unremedied for a period of 15 days after notice thereof from the Agent or any Lender to the Borrower; 



36





 




         (g)  a
court or governmental agency having jurisdiction in the premises shall enter a decree or order for relief in respect of the Borrower in an involuntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of the
Borrower, or for any substantial part of its property or ordering the winding up or liquidation of its affairs, and such decree or order shall remain unstayed and in effect for a period of 20
consecutive days; 


         (h)  the
Borrower shall commence a voluntary case under any applicable bankruptcy or other similar law now or hereafter in effect, or consent to the entry of an order for
relief in an involuntary case under any such law; or consent to the appointment or taking possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of the
Borrower, or for any substantial part of its property or make any general assignment for the benefit of creditors; or the Borrower shall admit in writing its inability to pay its debts generally as
they become due, or corporate action shall be taken by the Borrower in furtherance of any of the aforesaid purposes; 


          (i)  The
Borrower or any of its Subsidiaries shall fail to pay any principal of or premium or interest on any Debt that is outstanding in a principal amount of at least
$100,000,000 in the aggregate (but excluding Debt outstanding hereunder) of the Borrower or such Subsidiary (as the case may be), when the same becomes due and payable (whether by scheduled maturity,
required prepayment, acceleration, demand or otherwise), and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt; or
any other event shall occur or condition shall exist under any agreement or instrument relating to any such Debt and shall continue after the applicable grace period, if any, specified in such
agreement or instrument, if the effect of such event or condition is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and
payable, or required to be prepaid or redeemed (other than by a regularly scheduled required prepayment or redemption), purchased or defeased, or an offer to prepay, redeem, purchase or defease such
Debt shall be required to be made, in each case prior to the stated maturity thereof; 



          (j)  Judgments
or orders for the payment of money in excess of $100,000,000 in the aggregate shall be rendered against the Borrower or any of its Subsidiaries and either
(i) enforcement proceedings shall have been commenced by any creditor upon such judgment or order or (ii) there shall be any period of 45 consecutive days during which a stay of
enforcement of such judgment or order, by reason of a pending appeal or otherwise, shall not be in effect; provided,  however, that any such judgment or
order shall not be an Event of Default under this clause (j) if and for so long as and to the extent that
(i) the amount of such judgment or order is covered by a valid and binding policy of insurance between the defendant and the insurers covering payment thereof and (ii) such insurers,
which shall be rated at least
"B+" by A.M. Best Company, have been notified of, and coverage has not been denied for, the amount of such judgment or order; and 


         (k)  The
Borrower or any of its ERISA Affiliates shall incur, or shall be reasonably likely to incur liability in excess of $100,000,000 in the aggregate as a result of one
or more of the following: (i) the occurrence of any ERISA Event; (ii) the partial or complete withdrawal of the Borrower or any of its ERISA Affiliates from a Multiemployer Plan; or
(iii) the reorganization or termination of a Multiemployer Plan; or 



          (l)  (i) Any
Person or group of Persons (within the meaning of Section 13 or Section 14 of the Securities and Exchange Act of 1934) shall have acquired
beneficial ownership (within the meaning of Rule 13d-3 of the Securities and Exchange Commission under such Act), directly or indirectly, of Voting Shares of the Borrower (or other
securities convertible into such Voting Shares) representing 30% or more of the combined voting power of all Voting Shares of the Borrower; or (ii) during any period of up to 24 consecutive
months, commencing before or after 



37





 




the
date of this Agreement, individuals who at the beginning of such 24-month period were directors of the Borrower shall cease for any reason (other than due to death or disability) to
constitute a majority of the board of directors of the Borrower (except to the extent that individuals who at the beginning of such 24-month period were replaced by individuals
(x) elected by a majority of the remaining members of the board of directors of the Borrower or (y) nominated for election by a majority of the remaining members of the board of
directors of the Borrower and thereafter elected as directors by the shareholders of the Borrower); or 



        (m)  any
provision of any guarantee after delivery thereof pursuant to Section 5.15 shall for any reason cease to be valid and binding on or enforceable against any
Loan Party party to it, or any such Loan Party shall so state in writing; or 


         (n)  any
Collateral Document or financing statement after delivery thereof pursuant to Section 5.15 shall for any reason (other than pursuant to the terms thereof)
cease to create a valid and perfected first priority lien on and security interest in the Collateral purported to be covered thereby; 




then,
and in every such event (other than an event described in paragraph (g) or (h) above), and at any time thereafter during the continuance of such event, the Agent, at the request of
the Required Lenders, shall, by notice to the Borrower, take either or both of the following actions, at the same or different times: (i) terminate forthwith the Commitments and
(ii) declare the Loans then outstanding to be forthwith due and payable in whole or in part, whereupon the principal of the Loans so declared to be due and payable, together with accrued
interest thereon and any unpaid accrued Fees and all other liabilities of the Borrower accrued hereunder, shall become forthwith due and payable, without presentment, demand, protest or any other
notice of any kind, all of which are hereby expressly waived
by the Borrower, anything contained herein to the contrary notwithstanding; and, in any event with respect to the Borrower described in paragraph (f) or (g) above, the Commitments shall
automatically terminate and the principal of the Loans then outstanding, together with accrued interest thereon and any unpaid accrued Fees and all other liabilities of the Borrower accrued hereunder,
shall automatically become due and payable, without presentment, demand, protest or any other notice of any kind, all of which are hereby expressly waived by the Borrower, anything contained herein to
the contrary notwithstanding. 


ARTICLE VII  


 The Agent  


        In order to expedite the transactions contemplated by this Agreement, Citibank, N.A. is hereby appointed to act as Agent on behalf of the Lenders. Each of the
Lenders hereby irrevocably authorizes the Agent to take such actions on behalf of such Lender and to exercise such powers as are specifically delegated to the Agent by the terms and provisions hereof,
together with such actions and powers as are reasonably incidental thereto. The Agent is hereby expressly authorized by the Lenders, without hereby limiting any implied authority, (a) to
receive on behalf of the Lenders all payments of principal of and interest on the Loans and all other amounts due to the Lenders hereunder, and promptly to distribute to each Lender its proper share
of each payment so received; (b) to give notice on behalf of each of the Lenders to the Borrower of any Event of Default specified in this Agreement of which the Agent has actual knowledge
acquired in connection with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Borrower pursuant to this
Agreement as received by the Agent. 


        Neither
the Agent nor any of its directors, officers, employees or agents shall be liable as such for any action taken or omitted by any of them except for its or his own gross
negligence or willful misconduct, or be responsible for any statement, warranty or representation herein or the contents of any document delivered in connection herewith, or be required to ascertain
or to make any inquiry 


38





 



concerning
the performance or observance by the Borrower of any of the terms, conditions, covenants or agreements contained in this Agreement. The Agent shall not be responsible to the Lenders for the
due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Agent may deem and treat the Lender which makes any Loan as the holder
of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agent shall in all cases be
fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, such instructions
and any action or inaction pursuant thereto shall be binding on all the Lenders. The Agent shall, in the absence of knowledge to the contrary, be entitled to rely on any instrument or document
believed by it in good faith to be genuine and correct and to have been signed or sent by the proper person or persons. Neither the Agent nor any of its directors, officers, employees or agents shall
have any responsibility to the Borrower on account of the failure of or delay in performance or breach by any Lender of any of its obligations hereunder or to any Lender on account of the failure of
or delay in performance or breach by any other Lender or the Borrower of any of their respective obligations hereunder or in connection herewith. The Agent may execute any and all duties hereunder by
or through agents or employees and shall be entitled to rely upon the advice of legal counsel selected by it with respect to all matters arising hereunder and shall not be liable for any action taken
or suffered in good faith by it in accordance with the advice of such counsel. 


        The
Lenders hereby acknowledge that the Agent shall be under no duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement unless it
shall be requested in writing to do so by the Required Lenders. 


        Subject
to the appointment and acceptance of a successor Agent as provided below, the Agent may resign at any time by notifying the Lenders and the Borrower. Upon any such resignation,
the Required Lenders shall have the right to appoint a successor Agent acceptable to the Borrower. If no successor shall have been so appointed by the Required Lenders and shall have accepted such
appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders, appoint a successor Agent which shall be a bank with
an office in New York, New York, having a combined capital and surplus of at least $500,000,000 or an Affiliate of any such bank. Upon the acceptance of any appointment as Agent hereunder by a
successor bank, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent and the retiring Agent shall be discharged from its duties
and obligations hereunder. After the Agent's resignation hereunder, the provisions of this Article and Section 8.05 shall continue in effect for its benefit in respect of any actions taken or
omitted to be taken by it while it was acting as Agent. 


        With
respect to the Loans made by it hereunder, the Agent in its individual capacity and not as Agent shall have the same rights and powers as any other Lender and may exercise the same
as though it were not the Agent, and the Agent and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other
Affiliate thereof as if it were not the Agent. 


        Each
Lender agrees (i) to reimburse the Agent, on demand, in the amount of its pro rata share (based on its Commitment hereunder) of any expenses incurred for the benefit of the
Lenders by the Agent, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by the Borrower, and
(ii) to indemnify and hold harmless the Agent and any of its directors, officers, employees or agents, on demand, in the amount of such pro rata share, from and against any and all liabilities,
taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it
in its capacity as the Agent or any of them in any way relating to or arising out of this Agreement or any action taken or omitted by 


39





 



it
or any of them under this Agreement to the extent the same shall not have been reimbursed by the Borrower; provided that no Lender shall be liable to
the Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful
misconduct of the Agent or any of its directors, officers, employees or agents. 



        Each
Lender acknowledges that it has, independently and without reliance upon the Agent or any other Lender and based on such documents and information as it has deemed appropriate, made
its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agent or any other Lender and based on such
documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement or any related agreement
or any document furnished hereunder or thereunder. 



        Each
Lender hereby acknowledges that none of the Lead Arranger, the Co-Syndication Agents, the Co-Arrangers or any agent (other than the Agent) designated on the
signature pages hereof has any liability hereunder other than in its capacity as a Lender. 


40








  



 
 

ARTICLE VIII    
    
    Miscellaneous    
    



        SECTION
8.01.    Notices.    (a) Notices and other communications provided for herein shall be in writing and
shall be either (x) in writing delivered by hand or overnight courier service, mailed or sent by telecopy, graphic scanning or other telegraphic communications equipment of the sending party or
(y) as and to the extent set forth in Section 8.01(b) and in the proviso to this Section 8.02(a), as follows: 



          (i)  if
to the Borrower, to it at Avaya Inc., 211 Mount Airy Road, Basking Ridge, NJ 07920, Attention: Chief Financial Officer (Facsimile
No. 908-953-2202) with a copy to: Vice President, Law—Corporate (Facsimile No. 908-953-4912); 


         (ii)  if
to the Agent, to it at Two Penns Way, New Castle, Delaware 19720, Attention: Bank Loan Syndications Department, (Facsimile
No. 212-994-0961); with a copy thereof to it at 388 Greenwich Street, NY 10013, Attention: Charles Foster, Global Media and Telecommunications Department, (Facsimile No.
(212) 816-8084); and 


        (iii)  if
to a Lender, to it at its address (or telecopy number) set forth in Schedule 2.01 or in the Assignment and Acceptance pursuant to which such Lender became a
party hereto. 




All
notices and other communications given to any party hereto in accordance with the provisions of this Agreement shall be deemed to have been given on the date of receipt if delivered by hand or
overnight courier service or sent by telecopy, graphic scanning or other telegraphic communications equipment of the sender, or on the date five Business Days after dispatch by certified or registered
mail if mailed, in each case delivered, sent or mailed (properly addressed) to such party as provided in this Section 8.01(a) or in accordance with the latest unrevoked direction from such
party given in accordance with this Section 8.01(a), provided that materials required to be delivered pursuant to
Section 5.02(c) shall be delivered to the Agent as specified in Section 8.01(b) or as otherwise specified to the Borrower by the Agent. 


	(b)
	So
long as Citibank is the Agent, materials required to be delivered pursuant to Section 5.02(c) shall be delivered to the Agent in an electronic medium in a format acceptable
to the Agent and the Lenders by e-mail at oploanswebadmin@citigroup.com. The Borrower agrees that the Agent may make such materials, as well as any other written information, documents,
instruments and other material relating to the Borrower, any of its Subsidiaries or any other materials or matters relating to this Agreement, the Notes or any of the transactions contemplated hereby
(collectively, the "Communications") available to the Lenders by posting such notices on "e-Disclosure" (the
"Platform"), the Agent's internet delivery system that is part of Fixed Income Direct, Global Fixed Income's primary web portal. Although the primary
web portal is secured with a dual firewall and a User ID/Password Authorization System and the Platform is secured through a single user per deal authorization method whereby each user may access the
Platform only on a deal-by-deal basis, the Borrower acknowledges that (i) the distribution of material through an electronic medium is not necessarily secure and that
there are confidentiality and other risks associated with such distribution, (ii) the Platform is provided "as is" and "as available" and (iii) neither the Agent nor any of its
Affiliates warrants the accuracy, adequacy or completeness of the Communications or the Platform and each expressly disclaims liability for errors or omissions in the Communications or the Platform.
No warranty of any kind, express, implied or statutory, including, without limitation, any warranty of merchantability, fitness for a particular purpose, non-infringement of third party
rights or freedom from viruses or other code defects, is made by the Agent or any of its Affiliates in connection with the Platform.



	(c)
	Each
Lender agrees that notice to it (as provided in the next sentence) (a "Notice") specifying that any Communications have been
posted to the Platform shall constitute effective delivery of such 


41





 

information,
documents or other materials to such Lender for purposes of this Agreement; provided that if requested by any Lender the Agent shall
deliver a copy of the Communications to such Lender by email or telecopier. Each Lender agrees (i) to notify the Agent in writing of such Lender's e-mail address to which a Notice
may be sent by electronic transmission (including by electronic communication) on or before the date such Lender becomes a party to this Agreement (and from time to time thereafter to ensure that the
Agent has on record an effective e-mail address for such Lender) and (ii) that any Notice may be sent to such e-mail address. 




        SECTION
8.02.    Survival of Agreement.    All covenants, agreements, representations and warranties made by the
Borrower herein and in the certificates or other instruments prepared or delivered in connection with or pursuant to this Agreement shall be considered to have been relied upon by the Lenders and
shall survive the making by the Lenders of the Loans regardless of any investigation made by the Lenders or on their behalf, and shall continue in full force and effect as long as the principal of or
any
accrued interest on any Loan or any Fee or any other amount payable under this Agreement is outstanding and unpaid and so long as the Commitments have not been terminated. 


        SECTION
8.03.    Binding Effect.    This Agreement shall become effective when it shall have been executed by the
Borrower and the Agent and when the Agent shall have received copies hereof (telefaxed or otherwise) which, when taken together, bear the signatures of the Required Lenders (as defined in the Existing
Credit Agreement), and thereafter shall be binding upon and inure to the benefit of the Borrower, the Agent and each Lender and their respective successors and assigns. 



        SECTION
8.04.    Successors and Assigns.    (a) Whenever in this Agreement any of the parties hereto is
referred to, such reference shall be deemed to include the successors and assigns of such party; and all covenants, promises and agreements by or on behalf of the Borrower, the Agent or the Lenders
that are contained in this Agreement shall bind and inure to the benefit of their respective successors and assigns. 


	(b)
	Each
Lender may assign to one or more assignees all or a portion of its interests, rights and obligations under this Agreement (including all or a portion of its Commitment and the
Loans at the time owing to it); provided, however, that (i) the Borrower must give its prior
written consent to such assignment (such consent not to be unreasonably withheld) except for an assignment to an Affiliate of a Lender provided that, in such case, the Lender give notice of such
assignment to the Borrower and, in each case, the Lender give notice of such assignment to the Agent, (ii) the amount of the Commitment of the assigning Lender subject to each such assignment
(determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to the Agent) shall be at least $10,000,000 or increments of $1,000,000 in excess thereof (or the
remaining balance of its Commitment) and the amount of the Commitment of such Lender remaining after such assignment shall not be less than $10,000,000 or shall be zero, (iii) the parties to
each such assignment shall execute and deliver to the Agent an Assignment and Acceptance, and a processing and recordation fee of $3,500 and (iv) the assignee, if it shall not be a Lender,
shall deliver to the Agent an Administrative Questionnaire. Upon acceptance and recording pursuant to paragraph (e) of this Section 8.04, from and after the effective date specified in
each Assignment and Acceptance, which effective date shall be at least five Business Days after the execution thereof, (A) the assignee thereunder shall be a party hereto and, to the extent of
the interest assigned by such Assignment and Acceptance, have the rights and obligations of a Lender under this Agreement, (B) the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an
assigning Lender's rights and obligations under this Agreement, such Lender shall cease to be a party hereto (but shall continue to be entitled to the benefits of Sections 2.12, 2.14, 2.18 and 8.05,
as well as to any Fees accrued for its account hereunder and not yet paid)) and (C) Schedule 2.01 shall be deemed amended to give effect to such assignment. 


42





 
	(c)
	By
executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the assignee thereunder shall be deemed to confirm to and agree with each other and the
other parties hereto as follows: (i) such assigning Lender warrants that it is the legal and beneficial owner of the interest being assigned thereby free and clear of any adverse claim,
(ii) except as set forth in (i) above, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with this Agreement, or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other instrument or
document furnished pursuant hereto or the financial condition of the Borrower or the performance or observance by the Borrower of any of its obligations under this Agreement or any other instrument or
document furnished pursuant hereto; (iii) such assignee represents and warrants that it is legally authorized to enter into such Assignment and Acceptance; (iv) such assignee confirms
that it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 5.02 and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (v) such assignee will independently and without reliance upon the Agent, such
assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action
under this Agreement; (vi) such assignee appoints and authorizes the Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the
Agent by the terms hereof, together with such powers as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all the obligations
which by the terms of this Agreement are required to be performed by it as a Lender.



	(d)
	The
Agent shall maintain at one of its offices in the City of New York a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and
addresses of the Lenders, and the Commitment of, and the principal amount of the Loans owing to, each Lender pursuant to the terms hereof from time to time (the "Register"). The entries in the
Register shall be conclusive in the absence of manifest error and the Borrower, the Agent and the Lenders may treat each person whose name is recorded in the Register pursuant to the terms hereof as a
Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower and each Lender, at any reasonable time and from time to time upon reasonable prior
notice.



	(e)
	Upon
its receipt of a duly completed Assignment and Acceptance executed by an assigning Lender and an assignee together with an Administrative Questionnaire completed in respect of
the assignee (unless the assignee shall already be a Lender hereunder), the processing and recordation fee referred to in paragraph (b) above and, if required, the written consent of the
Borrower to such assignment, the Agent shall (i) accept such Assignment and Acceptance and (ii) record the information contained therein in the Register.



	(f)
	Each
Lender may, without the consent of the Borrower or the Agent, sell participations to one or more banks or other entities in all or a portion of its rights and obligations under
this Agreement (including all or a portion of its Commitment and the Loans owing to it); provided,  however, that (i) such Lender's obligations under
this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible
to the other parties hereto for the performance of such obligations, (iii) each participating bank or other entity shall be entitled to the benefit of the cost protection provisions contained
in Sections 2.12, 2.14 and 2.18 to the same extent as if it was the selling Lender, except that all claims and petitions for payment and payments made pursuant to such Sections shall be made through
such selling Lender, and (iv) the Borrower, the Agent and the other Lenders shall continue to deal solely and directly with such selling Lender in connection with such Lender's rights and
obligations under this Agreement, and such Lender shall retain the sole 


43





 

right
(and participating banks or other entities shall have no right) to enforce the obligations of the Borrower relating to the Loans and to approve any amendment, modification or waiver of any
provision of this Agreement (other than amendments, modifications or waivers decreasing any fees payable hereunder or the amount of principal of or the rate at which interest is payable on the Loans,
or extending any scheduled principal payment date or date fixed for the payment of interest on the Loans). 



	(g)
	Any
Lender or participant may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.04, disclose to the
assignee or participant or proposed assignee or participant any information relating to the Borrower furnished to such Lender by or on behalf of the Borrower;  provided that, prior to any such disclosure,
 each such assignee or participant or proposed assignee or participant shall execute an agreement whereby
such assignee or participant shall agree to be bound by the confidentiality restrictions used by the Agent in connection with the syndication of the Commitments and shall agree (subject to customary
exceptions) to preserve the confidentiality of any such confidential information relating to the Borrower.



	(h)
	Except
in accordance with Section 8.13, the Borrower shall not assign or delegate any of its respective rights and duties hereunder without the prior written consent of all
Lenders and any attempted assignment without such consent shall be void.



	(i)
	Any
Lender may at any time pledge all or any portion of its rights under this Agreement to a Federal Reserve Bank; provided that no
such pledge shall release any Lender from its obligations hereunder or substitute any such Bank for such Lender as a party hereto. In order to facilitate such an assignment to a Federal Reserve Bank,
the Borrower shall, at the request of the assigning Lender, duly execute and deliver to the assigning Lender a promissory note or notes in the form of Exhibit B hereto, evidencing the Loans
made to the Borrower by the assigning Lender hereunder. 





        SECTION
8.05.    Expenses; Indemnity.    (a) The Borrower agrees to pay all reasonable
out-of-pocket expenses incurred by the Agent in connection with entering into this Agreement or in connection with any amendments, modifications or waivers of the provisions
hereof, or incurred by the Agent or any Lender in connection with the enforcement or protection of their rights in connection with this Agreement or in connection with the Loans made hereunder,
including the fees and disbursements of counsel for the Agent or, in the case of enforcement or protection, Lenders. 


	(b)
	The
Borrower agrees to indemnify the Agent, the Lenders, Affiliates, and their respective directors, officers, employees and agents (each such person being called an "Indemnitee")
against, and to hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses, including reasonable counsel fees and expenses, incurred by or asserted
against any Indemnitee arising out of (i) the execution or delivery of this Agreement or any agreement or instrument contemplated thereby, the performance by the parties thereto of their
respective obligations thereunder or the consummation of the transactions contemplated thereby, (ii) the use of the proceeds of the Loans or (iii) any claim, litigation, investigation or
proceeding relating to any of the foregoing, whether or not any Indemnitee is a party thereto; provided that such indemnity shall not, as to any
Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to
have resulted from the gross negligence or willful misconduct of such Indemnitee. The Borrower also agrees not to assert any claim for special, indirect, consequential or punitive damages against the
Agent, any Lender, any of their Affiliates, or any of their respective directors, officers, employees, attorneys and agents, on any theory of liability, arising out of or otherwise relating to this
Agreement, any other Loan Document, any of the transactions contemplated herein or the actual or proposed use of the proceeds of the Loans. 


44





 
	(c)
	The
provisions of this Section 8.05 shall remain operative and in full force and effect regardless of the expiration of the term of this Agreement, the consummation of the
transactions contemplated hereby, the repayment of any of the Loans, the invalidity or unenforceability of any term or provision of this Agreement or any investigation made by or on behalf of the
Agent or any Lender. All amounts due under this Section 8.05 shall be payable on written demand therefor. 



        SECTION
8.06.    Right of Setoff.    Upon (i) the occurrence and during the continuance of any Event of Default
and (ii) the making of the request specified by Section 6.01 to authorize the Agent to declare the Loans due and payable pursuant to the provisions of Section 6.01, each Lender
and each of its Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other indebtedness at any time owing by such Lender or such Affiliate to or for the credit or the account of the Borrower against any and all of the
obligations of the Borrower now or hereafter existing under this Agreement, whether or not such Lender shall have made any demand
under this Agreement and although such obligations may be unmatured. Each Lender agrees promptly to notify the Borrower after any such set off and application,  provided that the failure to give such
notice shall not affect the validity of such setoff and application. The rights of each Lender and its Affiliates
under this Section are in addition to other rights and remedies (including, without limitation, other rights of setoff) that such Lender and its Affiliates may have. 



        SECTION
8.07.    Applicable Law.    THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF
THE STATE OF NEW YORK. 


        SECTION
8.08.    Waivers; Amendment.    (a) No failure or delay of the Agent or any Lender in exercising any
power or right hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right
or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Agent and the Lenders hereunder are cumulative and are not
exclusive of any rights or remedies which they would otherwise have. No waiver of any provision of this Agreement or consent to any departure by the Borrower therefrom shall in any event be effective
unless the same shall be permitted by paragraph (b) below, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or
demand on the Borrower in any case shall entitle the Borrower to any other or further notice or demand in similar or other circumstances. 


	(b)
	Neither
this Agreement nor any provision hereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by the Borrower and the
Required Lenders; provided, however, that no such agreement shall (i) decrease the principal
amount of, or extend the maturity of or any scheduled principal payment date or date for the payment of any interest on any Loan, or waive or excuse any such payment or any part thereof, or decrease
the rate of interest on any Loan, without the prior written consent of each Lender affected thereby, (ii) increase the Commitment or decrease the Facility Fee of any Lender without the prior
written consent of such Lender, (iii) amend or modify the provisions of Section 2.15 or Section 8.04(h), the provisions of this Section or the definition of the "Required
Lenders," without the prior written consent of each Lender, or (iv) release all or substantially all of the Collateral without the prior written consent of each Lender,  provided that so long as no
Default or Event of Default has occurred and is continuing, no consent of any Lender or the Agent shall be required for the
release of any Collateral with the sale or other disposition of the assets described on Schedule 2.10 hereto and (z) in any fiscal year of the Borrower, Collateral having a fair market
value not in excess of $25,000,000 shall be released upon sale or other disposition with only the consent of the Agent; provided further,  however, that no
such agreement shall amend, modify or otherwise affect the rights or duties of the Agent hereunder without the prior written consent of
the Agent. Each Lender shall be bound by any waiver, amendment or modification authorized by this Section and 


45





 

any
consent by any Lender pursuant to this Section shall bind any assignee of its rights and interests hereunder. 




        SECTION
8.09.    Entire Agreement.    This Agreement and the Fee Letter constitute the entire contract among the
parties relative to the subject matter hereof. Any previous agreement among the parties with respect to the subject matter hereof is superseded by this Agreement and the Fee Letter. Nothing in this
Agreement or the Fee Letter expressed or implied, is intended to confer upon any party other than the parties hereto any rights, remedies, obligations or liabilities under or by reason of this
Agreement or the Fee Letter. 


        SECTION
8.10.    Severability.    In the event any one or more of the provisions contained in this Agreement should be
held invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby. The
parties shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible
to that of the invalid, illegal or unenforceable provisions. 



        SECTION
8.11.    Counterparts.    This Agreement may be executed in two or more counterparts, each of which shall
constitute an original but all of which when taken together shall constitute but one contract, and shall become effective as provided in Section 8.03. 


        SECTION
8.12.    Headings.    Article and Section headings and the Table of Contents used herein are for convenience
of reference only, are not part of this Agreement and are not to affect the construction of, or to be taken into consideration in interpreting, this Agreement. 


46









   
        IN WITNESS WHEREOF, the Borrower, the Agent and the Lenders have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above
written. 



	 	 	AVAYA, INC.
	

 	
 	

By	

/s/  GARRY K. MCGUIRE      
 Name: Garry K. McGuire

Title: Chief Financial Officer and Senior Vice President
	

 	
 	

CITIBANK, N.A., individually and as Agent,
	

 	
 	

By	

/s/  THOMAS LABERGERE      
 Name: Thomas Labergere

Title: Vice President
	

 	
 	

BANK ONE, NA (Main Office Chicago)
	

 	
 	

By	

/s/  PHILLIP D. MARTIN      
 Name: Phillip D. Martin

Title: Senior Vice President
	

 	
 	

JPMORGAN CHASE BANK
	

 	
 	

By	

/s/  EDMOND DEFOREST      
 Name: Edmond DeForest

Title: Vice President
	

 	
 	

DEUTSCHE BANK AG NEW YORK BRANCH
	

 	
 	

By	

/s/  ANDREAS NEUMEIER      
 Name: Andreas Neumeier

Title: Director
	

 	
 	

By	

/s/  PETER ESCHMANN      
 Name: Peter Eschmann

Title: Vice President
	

 	
 	

COMMERZBANK AG, NEW YORK BRANCH
	

 	
 	

By	

/s/  ROBERT S. TAYLOR      
 Name: Robert S. Taylor

Title: Senior Vice President
	

 	
 	

By	

/s/  ANDREW P. LUSK      
 Name: Andrew P. Lusk

Title: Assistant Vice President
	 	 	 	 





47





 


	

 	
 	

THE BANK OF NEW YORK
	

 	
 	

By	

/s/  BRENDAN T. NEDZI      
 Name: Brendan T. Nedzi

Title: Senior Vice President
	

 	
 	

THE BANK OF TOKYO—MITSUBISHI LTD., NEW YORK BRANCH
	

 	
 	

By	

/s/  SPENCER HUGHES      
 Name: Spencer Hughes

Title: Authorized Signatory
	

 	
 	

CREDIT SUISSE FIRST BOSTON
	

 	
 	

By	

/s/  ROBERT HETU      
 Name: Robert Hetu

Title: Director
	

 	
 	

By	

/s/  DOREEN B. WELCH      
 Name: Doreen B. Welch

Title: Associate
	

 	
 	

HSBC BANK USA
	

 	
 	

By	

/s/  PAOLO DE ALESSANDRINI      
 Name: Paolo de Alessandrini

Title: Senior Vice President
	

 	
 	

THE NORTHERN TRUST COMPANY
	

 	
 	

By	

/s/  KAREN E. DAEL      
 Name: Karen E. Dael

Title: Vice President
	

 	
 	

SUMITOMO MITSUI BANKING CORPORATION
	

 	
 	

By	

/s/  PETER R. C. KNIGHT      
 Name: Peter R. C. Knight

Title: Joint General Manager
	

 	
 	

WESTDEUTSCHE LANDESBANK GIROZENTRALE, NEW YORK BRANCH
	

 	
 	

By	

    
 Name:

Title:




48







 
 

SCHEDULE I
  APPLICABLE LENDING OFFICES    
    



	Name of Initial Lender
 
	 	Domestic Lending Office
	 	Eurodollar Lending Office

	The Bank of New York	 	One Wall Street, 21st Floor

New York, NY 10286

Attn:  Pat Butler

           Terry Blackburn

T: 212 635-7937/7938

F: 212 809-9060	 	One Wall Street, 21st Floor

New York, NY 10286

Attn:  Pat Butler

           Terry Blackburn

T: 212 635-7937/7938

F: 212 809-9060
	

Bank One, NA	
 	

1 Bank One Plaza

Chicago, IL 60670

Attn: Ben Oliva

T: 312 732-5987

F: 312 732-4840	
 	

1 Bank One Plaza

Chicago, IL 60670

Attn: Ben Oliva

T: 312 732-5987

F: 312 732-4840
	

The Bank of Tokyo-Mitsubishi Ltd., New York Branch	
 	

1251 Avenue of the Americas

12th Floor

New York, NY 10020

Attn: Rolando Uy

T: 212 782-5637

F: 212 782-5635	
 	

1251 Avenue of the Americas

12th Floor

New York, NY 10020

Attn: Rolando Uy

T: 212 782-5637

F: 212 782-5635
	

JPMorgan Chase Bank	
 	

270 Park Avenue

New York, NY 10017

Attn: Camile Wilson

T: 212 552-7488

F: 212 552-5700	
 	

270 Park Avenue

New York, NY 10017

Attn: Camile Wilson

T: 212 552-7488

F: 212 552-5700
	

Citibank, N.A.	
 	

Two Penns Way

New Castle, Delaware 19720

Attn: Bilal Aman

T: 302 89406013

F: 302 894-6120	
 	

Two Penns Way

New Castle, Delaware 19720

Attn: Bilal Aman

T: 302 89406013

F: 302 894-6120
	

Commerzbank, AG, New York Branch	
 	

2 World Financial Center

New York, NY 10281

Attn:  Joylynn Jarvis

           Warren Leung

T: 212 266-7348/7749

F: 212 266-7593	
 	

2 World Financial Center

New York, NY 10281

Attn:  Joylynn Jarvis

           Warren Leung

T: 212 266-7348/7749

F: 212 266-7593
	

Credit Suisse First Boston	
 	

11 Madison Avenue

New York, NY 10010

Attn: Robert Hetu

T: 212 325-4542

F: 212 325-8309	
 	

11 Madison Avenue

New York, NY 10010

Attn: Robert Hetu

T: 212 325-4542

F: 212 325-8309
	

Deutsche Bank AG New York Branch	
 	

31 West 52nd Street

New York, NY 10019

Attn: Joseph Gyurindak

T: 212 469-4107

F: 212 469-4139	
 	

31 West 52nd Street

New York, NY 10019

Attn: Joseph Gyurindak

T: 212 469-4107

F: 212 469-4139
	

HSBC Bank USA	
 	

140 Broadway, 4th Floor

New York, NY 10005

Attn: Monisha Khadse

T: 212 658-5572

F: 212 658-5109	
 	

140 Broadway, 4th Floor

New York, NY 10005

Attn: Monisha Khadse

T: 212 658-5572

F: 212 658-5109
	

The Northern Trust Company	
 	

50 S. LaSalle Street

Chicago, IL 60675

Attn: Linda Honda

T: 312 444-3532

F: 312 630-1566	
 	

50 S. LaSalle Street

Chicago, IL 60675

Attn: Linda Honda

T: 312 444-3532

F: 312 630-1566
	

 	
 	

 	
 	

 







	

Sumitomo Mitsui Banking Corporation	
 	

277 Park Avenue

New York, NY 10172

Attn: Ivelisse Mena-Garcia

T: 212 224-4150

F: 212 224-5197	
 	

277 Park Avenue

New York, NY 10172

Attn: Ivelisse Mena-Garcia

T: 212 224-4150

F: 212 224-5197
	

Westdeutsche Landesbank Girozentrale, New York Branch	
 	

1211 Avenue of the Americas

New York, NY 10036

Attn: Pascal Kabemba

T: 212 852-5938

F: 212 852-6300	
 	

1211 Avenue of the Americas

New York, NY 10036

Attn: Pascal Kabemba

T: 212 852-5938

F: 212 852-6300







 
 

SCHEDULE 2.01    
    



	Name and Address of Lender
 
	 	Commitment

	Citibank N.A.	 	$	58,823,529.43
	JPMorgan Chase Bank	 	$	27,573,529.41
	Deutsche Bank AG New York Branch	 	$	27,573,529.41
	Bank One, NA	 	$	25,735,294.12
	Commerzbank AG, New York Branch	 	$	25,735,294.12
	The Bank of New York	 	$	18,382,352.94
	Credit Suisse First Boston	 	$	14,705,882.35
	Bank of Tokyo—Mitsubishi Ltd.	 	$	11,029,411.76
	HSBC Bank USA	 	$	11,029,411.76
	Sumitomo Mitsui Banking Corporation	 	$	11,029,411.76
	Westdeutsche Landesbank	 	$	11,029,411.76
	The Northern Trust Company	 	$	7,352,941.18
	Total	 	$	250,000,000









  



 
 

SCHEDULE 5.19    
    



        The Borrower's Connectivity Solutions business and the aircraft pledged under the Aircraft Security Agreement dated as of September 23, 2002 made by the
Borrower in favor of The Bank of New York, as collateral trustee. 


2









 
 

EXHIBIT A    
    


FORM OF BORROWING REQUEST  


Citibank,
N.A., as Agent for

the Lenders referred to below, 


                        



                         


Attention:        [Date] 


Ladies
and Gentlemen: 


        The
undersigned, Avaya Inc. (the "Borrower"), refers to the Amended and Restated Five Year Revolving Credit Facility Agreement dated as
of                        , 2003 (as it may
hereafter be amended, modified, extended or restated from time to time, the "Credit Agreement"), among the Borrower, the Lenders named therein, the agents named therein and Citibank, N.A., as Agent.
Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to such terms in the Credit Agreement. The Borrower hereby gives you notice pursuant to
Section 2.03 of the Credit Agreement
that it requests a Borrowing under the Credit Agreement, and in that connection sets forth below the terms on which such Borrowing is requested to be made: 



	(A)
	Date
of Borrowing (which is a Business Day)                         



	(B)
	Principal
Amount of Borrowing*                         



	(C)
	Interest
rate basis**                         



	(D)
	Interest
Period and the last day thereof***                          





	*
	Not
less than $10,000,000 (and in integral multiples of $1,000,000) or greater than the Total Commitment then available.



	**
	Eurodollar
Loan or ABR Loan.



	***
	Which
shall be subject to the definition of "Interest Period" and end not later than the Maturity Date. 



        Upon
acceptance of any or all of the Loans made by the Lenders in response to this request, the Borrower shall be deemed to have represented and warranted that the conditions to lending
specified in Section 4.01(b) and (c) of the Credit Agreement have been satisfied. 



	 	 	Very truly yours,
	

 	
 	

AVAYA INC.
	

 	
 	

By	
 	

    

	 	 	 	 	Name:
	 	 	 	 	Title: [Responsible Officer]







 
 

EXHIBIT B    
    


FORM OF STANDBY NOTE  


        $[Amount of Commitment] New York, New York 



[Date] 


        FOR
VALUE RECEIVED, the undersigned, Avaya Inc., a Delaware corporation (the "Borrower"), hereby promises to pay to the order of [Name of Lender] (the
"Lender"), at the office of Citibank, N.A. (the "Agent") at [Address of Citibank, N.A.], on the Maturity Date (as defined in the Amended and Restated Five Year Revolving Credit
Facility Agreement dated as of                        , 2003 (the "Credit Agreement"), among the Borrower, the Lenders named
therein, the agents named therein and the Agent) the lesser of the principal sum of
[amount of Commitment in words] ($[            ]) and the aggregate unpaid principal amount of all Loans (as defined in the Credit Agreement) made to
the Borrower by the Lender pursuant to the Credit Agreement, in lawful money of the United States of America, in immediately available funds, and to pay interest on the principal amount hereof from
time to time outstanding, in like funds, at said office, at the rate or rates per annum, from the dates and payable on the dates provided in the Credit Agreement. 


        The
Borrower promises to pay interest, on demand, on any overdue principal and, to the extent permitted by law, overdue interest from their due dates at the rate or rates provided in the
Credit Agreement. 


        The
Borrower hereby waives diligence, presentment, demand, protest and notice of any kind whatsoever. The nonexercise by the holder of any of its rights hereunder in any particular
instance shall not constitute a waiver thereof in that or any subsequent instance. 


        All
borrowings evidenced by this Note and all payments and prepayments of the principal hereof and interest hereon and the respective dates and maturity dates thereof shall be endorsed
by the holder hereof on the schedule attached hereto and made a part hereof or on a continuation thereof which shall be attached hereto and made a part hereof, or otherwise recorded by such holder in
its internal records; provided, however, that the failure of the holder to make such a notation or any
error in such a notation shall not affect the obligations of the Borrower under this Note. 


        The
Loans evidenced hereby are Loans referred to in the Credit Agreement, which, among other things, contains provisions for the acceleration of the maturity thereof upon the happening
of certain events, for optional and mandatory prepayment of the principal thereof prior to the maturity thereof and for the amendment or waiver of certain provisions of the Credit Agreement, all upon
the terms and conditions therein specified. THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. 



	 	 	AVAYA INC.
	

 	
 	

By	

    
 Name:

Title:









 
 
 

Loans and Payments    
    



	Date
 
	 	Amount

and Type

of Loan
	 	Maturity

Date
	 	Principal
	 	Payments
	 	Interest
	 	Unpaid

Principal

Balance

of Note
	 	Name of

Person

Making

Notation

	    	 	    	 	 	 	 	 	 	 	 	 	 	 	 




2






EXHIBIT C  


FORM OF  


 ASSIGNMENT AND ACCEPTANCE  


        Reference is made to the Amended and Restated Five Year Revolving Credit Facility Agreement dated as
of                        , 2003 (as the same may be modified,
amended, extended or restated from time to time, the "Credit Agreement"), among Avaya Inc. (the "Borrower"), the lenders party thereto (the "Lenders"), the agents party thereto and Citibank,
N.A., as agent for the Lenders (in such capacity, the "Agent"). Terms defined in the Credit Agreement are used herein with the same meanings. 


        1.     The
Assignor hereby sells and assigns, without recourse, to the Assignee, and the Assignee hereby purchases and assumes, without recourse, from the Assignor, effective as
of the Effective Date set forth on the reverse hereof, the interests set forth on the reverse hereof (the "Assigned Interest") in the Assignor's rights and obligations under the Credit Agreement,
including, without limitation, the interests set forth on the reverse hereof in the Commitment of the Assignor on the Effective Date and Loans owing to the Assignor which are outstanding on the
Effective Date, together with unpaid interest accrued on the assigned Loans to the Effective Date. Each of the Assignor and the Assignee hereby makes and agrees to be bound by all the representations,
warranties and agreements set forth in Section 8.04(c) of the Credit Agreement, a copy of which has been received by each such party. From and after the Effective Date (i) the Assignee
shall be a party to and be bound by the provisions of the Credit Agreement and, to the extent of the interests assigned by this Assignment and Acceptance, have the rights and obligations of a Lender
thereunder and (ii) the Assignor shall, to the extent of the interests assigned by this Assignment and Acceptance, relinquish its rights (except as set forth in Section 8.04(b) of the
Credit Agreement) and be released from its obligations under the Credit Agreement. 


        2.     This
Assignment and Acceptance is being delivered to the Agent together with (i) if the Assignee is organized under the laws of a jurisdiction outside the United
States, the forms specified in Section 2.18(f) of the Credit Agreement, duly completed and executed by such Assignee, (ii) if the Assignee is not already a Lender under the Credit
Agreement, an Administrative Questionnaire and (iii) a processing and recordation fee of $3,500. 


        3.     This
Assignment and Acceptance shall be governed by and construed in accordance with the laws of the State of New York. 


Date
of Assignment: 


Legal
Name of Assignor: 


Legal
Name of Assignee: 


Assignee's
Address for Notices: 


Effective
Date of Assignment 





 



(may
not be fewer than 5 Business

Days after the Date of Assignment): 



	 
	 	Percentage Assigned of Facility and Commitment thereunder (set forth, to at

least 8 decimals, as a percentage of the Facility and the aggregate

Commitments of all the Lenders thereunder)

	Commitment Assigned:	 	%
	Loans:	 	 
	 	 	 





	The terms set forth above and on the reverse side hereof are hereby agreed to:	 	Accepted: as of                             ,
	

                        , as Assignor	
 	

CITIBANK, N.A., as agent
	

By:	
 	

 	
 	

By:	
 	

 
	 	 	
	 	 	 	

	Name:	 	Name:
	Title:	 	Title:
	

                        , as Assignee	
 	

[AVAYA INC.]
	

By:	
 	

 	
 	

By:	
 	

 
	 	 	
	 	 	 	

	Name:	 	Name:
	Title:	 	Title:




2





EXHIBIT D  


FORM OF  


 OPINION OF COUNSEL FOR AVAYA INC.  









QuickLinks



Exhibit 10.1



Table of Contents


ARTICLE VIII Miscellaneous


SCHEDULE I APPLICABLE LENDING OFFICES


SCHEDULE 2.01




SCHEDULE 5.19




EXHIBIT A

EXHIBIT B


Loans and Payments