EXHIBIT 10.46


 


EXECUTION COPY


 


AMENDMENT NO. 5 TO THE

AMENDED AND RESTATED FIVE YEAR REVOLVING CREDIT FACILITY

AGREEMENT


 


Dated as of March 3, 2004


 


AMENDMENT NO. 5 TO THE AMENDED AND
RESTATED FIVE YEAR REVOLVING CREDIT FACILITY AGREEMENT among
Avaya Inc., a Delaware corporation (the “Borrower”), the banks,
financial institutions and other institutional lenders parties to the Credit
Agreement referred to below (collectively, the “Lenders”) and Citibank,
N.A., as agent (the “Agent”) for the Lenders.


 


PRELIMINARY STATEMENTS:


 


(1)                                  The
Borrower, the Lenders and the Agent have entered into an Amended and Restated
Five Year Revolving Agreement dated as of April 30, 2003, as amended by
Amendment No. 1 dated as of June 25, 2003, Amendment No. 2 dated as of October 23,
2003, Amendment No. 3 dated as of January 30, 2004 and Amendment No. 4
dated as of February 6, 2004 (as so amended, the “Credit Agreement”).  Capitalized terms not otherwise defined in
this Amendment have the same meanings as specified in the Credit Agreement.


 


(2)                                  The
Borrower and the Required Lenders have agreed to amend the Credit Agreement as
hereinafter set forth.


 


SECTION 1.  Amendment
to Credit Agreement.  (a)  Section 5.07 is amended by adding to the
end thereof a new clause (xiii) to read as follows:


 


(xiii)                          Liens on shares of CommScope
Inc. received by the Borrower as partial consideration of the sale of the
Borrower’s Connectivity Solutions business.


 


(b)                                 Section 8.08(b)
is amended by deleting from the first proviso the phrase “assets described on Schedule 2.10
hereto” and substituting therefor the phrase “assets described on Schedule 8.08
hereto”.


 


(c)                                  Schedule 5.19
is renumbered as “Schedule 8.08” and amended in full to read as set forth
as Schedule 8.08 to this Amendment.


 





















 


SECTION 2.  Conditions of
Effectiveness.  This Amendment shall
become effective as of the date first above written when, and only when (a) the
Agent shall have received counterparts of this Amendment executed by the
Borrower and the Required Lenders or, as to any of the Lenders, advice
satisfactory to the Agent that such Lender has executed this Amendment and (b)
the Borrower shall have paid to the Agent any Fees and other amounts due and
payable on or prior to the date hereof.


 


SECTION 3.  Representations and
Warranties of the Borrower.  The
Borrower represents and warrants as follows:


 


(a)                                  It
(i) is a corporation duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization, (ii) 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, (iii) 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
(iv) has the corporate power and authority to execute, deliver and perform
its obligations under this Amendment.


 


(b)                                 The
execution, delivery and performance by the Borrower of this Amendment and the
Loan Documents, as amended hereby, to which it is a party, and the consummation
of the transactions contemplated hereby (i) have been duly authorized by
all requisite corporate actions and (ii) will not (A) violate
(1) 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, (2) any order of
any Governmental Authority or (3) 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, (B) 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 (C) except
for the Liens created under the Collateral Documents, result in the creation or
imposition of any lien upon any of the properties of the Borrower or any of its
Subsidiaries.


 


(c)                                  This
Amendment has been duly executed and delivered by the Borrower.  This Amendment and the Credit Agreement and
the Notes, as amended hereby, are the legal, valid and binding obligations of
the Borrower, enforceable against the Borrower in accordance with their
respective terms.


 


(d)                                 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 due
execution, delivery, recordation, filing or performance by the Borrower of this
Amendment.


 


(e)                                  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 Amendment
or the Credit Agreement and the Notes, as amended hereby, or any action taken
or to be taken pursuant to this Amendment or the Credit Agreement and the
Notes, as amended hereby, and no order or judgment has been issued or entered
restraining or enjoining it from the execution, delivery or performance of this


 


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Amendment or the Credit Agreement and the Notes, as
amended hereby, 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 as of the date hereof any other action or proceeding filed or (to its
knowledge) investigation 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 Annual Report on
Form 10-K for the fiscal quarter ended September 30, 2003, or materially
restrict the ability of it to comply with its obligations under this Amendment
or the Credit Agreement and the Notes, as amended hereby.


 


SECTION 4.  Reference to and Effect
on the Credit Agreement and the Notes. 
(a)  On and after the effectiveness
of this Amendment, each reference in the Credit Agreement to “this Agreement”, “hereunder”,
“hereof” or words of like import referring to the Credit Agreement, and each
reference in each other Loan Document to “the Credit Agreement”, “thereunder”, “thereof”
or words of like import referring to the Credit Agreement, shall mean and be a
reference to the Credit Agreement, as amended by this Amendment.


 


(b)                                 The Credit Agreement and other
Loan Documents, as specifically amended by this Amendment, are and shall
continue to be in full force and effect and are hereby in all respects ratified
and confirmed.


 


(c)                                  The execution, delivery and
effectiveness of this Amendment shall not, except as expressly provided herein,
operate as a waiver of any right, power or remedy of any Lender or the Agent
under the Credit Agreement, nor constitute a waiver of any provision of the
Credit Agreement.


 


SECTION 5.  Costs and Expenses.  The Borrower agrees to pay on demand all
costs and expenses of the Agent in connection with the preparation, execution,
delivery and administration, modification and amendment of this Amendment and
the other instruments and documents to be delivered hereunder (including,
without limitation, the reasonable fees and expenses of counsel for the Agent)
in accordance with the terms of Section 8.04 of the Credit Agreement.


 


SECTION 6.  Execution in
Counterparts.  This Amendment may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute but one and the same
agreement.  Delivery of an executed
counterpart of a signature page to this Amendment by telecopier shall be
effective as delivery of a manually executed counterpart of this Amendment.


 


SECTION 7.  Governing Law.  This Amendment shall be governed by, and
construed in accordance with, the laws of the State of New York.


 


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IN WITNESS WHEREOF, the parties hereto have caused
this Amendment to be executed by their respective officers thereunto duly
authorized, as of the date first above written.


 


	
   

  	
  AVAYA
  INC.

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

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

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  [SIGNATURES OMITTED]

  



 


 


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