EXHIBIT 10.43


 


EXECUTION COPY


 


AMENDMENT NO. 2 TO THE

AMENDED AND RESTATED FIVE YEAR REVOLVING CREDIT FACILITY AGREEMENT


 


Dated
as of October 23, 2003


 


AMENDMENT
NO. 2 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 (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.                                Amendments
to Credit Agreement.  Section 5.19(xi)
of the Credit Agreement is, effective as of the date hereof and subject to the
satisfaction of the conditions precedent set forth in Section 2, hereby
amended by replacing the phrase prior to the proviso “not to exceed $50,000,000”
with the phrase “not to exceed $50,000,000 plus an additional amount not to
exceed $100,000,000 if such amount is used for the purchase of the stock or
substantially all of the assets of Expanets, Inc. pursuant to a purchase
agreement executed on or prior to December 31, 2003”.


 


SECTION 2.                                Conditions
of Effectiveness.  This
Amendment shall become effective as of the date first above written when, and only when 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.


 


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 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 Quarterly Report on Form 10-Q for the fiscal quarter
ended June 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.


 


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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.


 


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:

  



 


 


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

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  [SIGNATURES OMITTED]

  



 


 


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