EXHIBIT 4.16


 


 










 


THIRD SUPPLEMENTAL INDENTURE


 


Dated as of November 16, 2004


 










 


between


 


AVAYA INC.


 


and


 


THE BANK OF NEW YORK


 


as Trustee


 










 


Supplemental to Indenture


 


Dated as of October 31, 2001 and


 


 Second Supplemental Indenture
dated March 28, 2002


 










 


111/8% Senior Secured Notes due 2009


 





















 


TABLE
OF CONTENTS


 


	
  ARTICLE I

  	
   

  
	
   

  	
   

  	
   

  
	
  AMENDMENTS

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 1.01.

  	
  Amendments to the
  Indenture and Notes.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE II

  	
   

  
	
   

  	
   

  	
   

  
	
  MISCELLANEOUS

  	
   

  



 


 


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THIRD SUPPLEMENTAL INDENTURE, dated as of the 16th
day of November, 2004, between AVAYA INC., a corporation duly organized and
existing under the laws of the State of Delaware, having its principal
executive office located at 211 Mount Airy Road, Basking Ridge, New Jersey
07920 (the “Company”), and THE BANK OF NEW YORK, a banking corporation
duly organized and existing under the laws of the State of New York, having its
Corporate Trust Office located at 101 Barclay Street, 7 East, New York, New
York 10286, as Trustee (the “Trustee”).


 


R E
C I T A L S


 


WHEREAS, the Company has heretofore executed and
delivered to the Trustee an Indenture, dated as of October 31, 2001 (the “Original
Indenture”, as amended by the Second Supplemental Indenture, dated as of March 28,
2002 (the “Second Supplemental Indenture”), and as so amended the “Indenture”),
pursuant to which the Company issued $640,000,000 aggregate principal amount of
its 111/8% Senior Secured Notes due 2009 (said series
hereinafter referred to as the “Notes”);


 


WHEREAS, the Company desires to amend certain
provisions of the Indenture, as set out in Article I hereof;


 


WHEREAS, Section 9.02 of the Second Supplemental
Indenture provides that the Company and the Trustee may, with certain
exceptions, amend the Indenture or the Notes with the written consent of the
Holders of at least a majority of the aggregate principal amount of the Notes
at the time outstanding (the “Required Consents”);


 


WHEREAS, the Company has distributed an Offer to
Purchase for Cash and Consent Solicitation, dated November 1, 2004 (the “Offer
to Purchase”), and accompanying letter of transmittal and consent (the “Letter
of Transmittal”) to the Holders of the Notes in connection with the Company’s
tender offer with respect to the Notes (the “Tender Offer”);


 


WHEREAS, in connection with the Tender Offer, the
Company is soliciting consents (the “Consent Solicitation” and, together
with the Tender Offer, the “Offer”) for certain proposed amendments to
the Indenture as described in the Offer to Purchase (the “Proposed
Amendments”);


 


WHEREAS, the Company has received the Required
Consents to adoption of the Proposed Amendments; and


 


WHEREAS, the execution and delivery of this Third
Supplemental Indenture have been duly authorized by all necessary corporate
action on the part of the Company and all conditions and requirements necessary
to make this instrument a valid, binding and legal agreement have been duly
performed and complied with.


 


NOW, THEREFORE, in consideration of the foregoing and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Company and the Trustee mutually covenant and
agree, for the equal and proportionate benefit of the Holders of the Notes, as
follows:


 





















 


ARTICLE I


 


AMENDMENTS


 


SECTION 1.01.  Amendments to the Indenture and Notes.


 


(a)                                  Effective
upon the date the Company notifies the Trustee and the depositary for the
Notes, The Bank of New York (the “Depositary”), that the Notes tendered
and not validly withdrawn pursuant to the Offer are accepted for purchase
pursuant to the Offer to Purchase and Letter of Transmittal (the “Effective
Date”), the following Sections and Articles of the Indenture, and any
corresponding provisions in the Notes, are hereby deleted in their entirety and
replaced with “Intentionally Omitted.”:


 


	
  Existing Section/Article Number

  	
   

  	
  Caption

  
	
   

  	
   

  	
   

  
	
  Section 4.02

  	
   

  	
  Limitation on Liens

  
	
  Section 4.03

  	
   

  	
  Limitation on Sale/Leaseback Transactions

  
	
  Section 4.04

  	
   

  	
  Amendment of Security Documents

  
	
  Section 4.05

  	
   

  	
  Reports to Holders

  
	
  Section 4.06

  	
   

  	
  Change of Control

  
	
  Section 4.07

  	
   

  	
  Limitation on Indebtedness

  
	
  Section 4.08

  	
   

  	
  Limitation on Restricted Payments

  
	
  Section 4.09

  	
   

  	
  Limitation on Restrictions on Distributions
  from Restricted Subsidiaries

  
	
  Section 4.10

  	
   

  	
  Limitation on Sales of Assets and
  Subsidiary Stock

  
	
  Section 4.11

  	
   

  	
  Limitation on Affiliate Transactions

  
	
  Section 4.12

  	
   

  	
  Limitation on Issuances of Guarantees by Restricted
  Subsidiaries

  
	
  Section 4.13

  	
   

  	
  Existence

  
	
  Section 4.14

  	
   

  	
  Maintenance of Properties

  
	
  Section 4.15

  	
   

  	
  Payment of Taxes and Other Claims

  
	
  Section 4.16

  	
   

  	
  Statement as to Compliance

  
	
  Article 5

  	
   

  	
  Successor Corporation

  



 


(b)                                 Effective
upon the Effective Date, Article 6 of the Indenture, and any corresponding
provisions in the Notes, are hereby amended as follows:


 


(i)                                     by
deleting Clauses (4), (5), (6), (7), (8), (10) and (11) of Section 6.01
and replacing them with “Intentionally Omitted”;


 


(ii)                                  by
inserting the word “or” at the end of Clause 6.01(2);


 


(iii)                               by
deleting the phrase “or Section 4.06 or, to the extent that the Company is
required to comply with sections 4.07 through 4.12, the Company fails to make
or consummate an offer to purchase in accordance with the provisions described
under Section 4.10; or”, in Clause 6.01(3);


 


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(iv)                              with
respect to the paragraph following Clause 6.01(3):


 


(A)                              by
deleting the proviso, “provided that if an Event of Default described in Clause
(10) or (11) above occurs, the principal amount of all Notes then outstanding
shall become and be immediately due and payable without any declaration or
other act on the part of the Trustee or any Holder.”; and


 


(B)                                by
deleting the last sentence of that paragraph;


 


(v)                                 by
deleting all references to the phrase “Change of Control Purchase Price or
purchase price with respect to an Excess Proceeds Offer” from Sections 6.02,
6.03 and 6.04;


 


(vi)                              by
inserting “or the” immediately before the first and third reference to “Redemption
Price” in Section 6.03 and the first reference in Section 6.04;


 


(vii)                           by
inserting “the” immediately before the second reference to “Redemption Price”
in Section 6.03;


 


(viii)                        by
deleting the word “or” appearing immediately before the phrase “interest on the
Notes” in the introductory paragraph of Section 6.03 and replacing it with
a comma; and


 


(ix)                                by
deleting the word “or” appearing immediately before the phrase “interest on the
Notes” in the last paragraph of Section 6.04 and replacing it with a
comma.


 


(c)                                  Effective
upon the Effective Date, the sections in Article IV of the Second
Supplemental Indenture (entitled “Security”), and any corresponding provisions
in the Notes, are deleted in their entirety and replaced with the following
section:


 


“SECTION 4.01 
Release of Collateral. 
Each Holder of Notes, by its acceptance thereof, authorizes and directs
the Trustee and the Collateral Trustee to amend the Security Documents as
necessary in order to release the Noteholders’ security interest in the
Collateral and terminate the Noteholders’ rights under the Security Agreement,
the Collateral Trust Agreement and the Intercreditor Agreement.


 


(d)                                 Effective
upon the Effective Date, any definitions used exclusively in the provisions of
the Indenture or Notes that are deleted pursuant to Paragraphs (a), (b) and (c)
of Section 1.1,  and any definitions
used exclusively within such definitions, are hereby deleted in their entirety
from the Indenture and the Notes, and all references in the Indenture and the
Notes to paragraphs, Sections, Articles or other terms or provisions of the
Indenture referred to in Section 1.1(a), (b) and (c) above that have been
otherwise deleted pursuant to this Third Supplemental Indenture are hereby deleted
in their entirety.


 


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ARTICLE II


 


MISCELLANEOUS


 


The Trustee makes no undertaking or representations in
respect of, and shall not be responsible in any manner whatsoever for and in
respect of, the validity or sufficiency of this Third Supplemental Indenture or
the proper authorization or the due execution hereof by the Company or for or
in respect of the recitals and statements contained herein, all of which
recitals and statements are made solely by the Company.


 


Except as expressly amended hereby, the Indenture
shall continue in full force and effect in accordance with the provisions
thereof and the Indenture is in all respects hereby ratified and
confirmed.  This Third Supplemental
Indenture and all its provisions shall be deemed a part of the Indenture in the
manner and to the extent herein and therein provided.


 


This Third Supplemental Indenture shall be governed
by, and construed in accordance with, the laws of the State of New York.


 


This Third Supplemental Indenture may be executed in
any number of counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.


 


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IN WITNESS WHEREOF, the undersigned, being duly
authorized, have executed this Third Supplemental Indenture on behalf of the
respective parties hereto as of the date first above written.


 


	
   

  	
  AVAYA INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Peter Hong

  	
   

  
	
   

  	
   

  	
  Name: 

  	
  Peter Hong

  
	
   

  	
   

  	
  Title:  

  	
  Vice President
  and Treasurer

  
	
   

  	
   

  	
   

  
	
   

  	
  THE BANK OF NEW YORK,
  as Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robert A.
  Massimillo

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Robert A.
  Massimillo

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
					



 


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