Exhibit 10.1


 


EXECUTION COPY


 


AMENDMENT NO.
3 TO THE

AMENDED AND RESTATED FIVE YEAR REVOLVING CREDIT FACILITY

AGREEMENT


 


Dated as of January 30,
2004


 


AMENDMENT
NO. 3 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 and Amendment No. 2 dated as of October 23, 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.  (a)    Section
5.02(c) is amended in full to read as follows:


 


(c)           concurrently with
any delivery of financial statements under paragraph (a) or (b) 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, (ii) setting forth in reasonable detail the calculations necessary to
demonstrate compliance with Section 5.08, 5.09 and, if applicable, 5.23 and
(iii) setting forth, for such fiscal quarter and on a cumulative basis, the aggregate
amount of Investments made in accordance with Section 5.19(x) and 5.19(xi), the
aggregate principal amount of Debt assumed in accordance with Section
5.19(xi)(7) and the aggregate amount of cash consideration used to prepay or
repurchase Debt in accordance with Section 5.22.


 


(b)           Section 5.17(ii)(B) is amended in
full to read as follows:


 


(B)           (x) Debt outstanding
on the Amendment No. 2 Effective Date, (y) Debt in an amount not to exceed the
aggregate principal amount of Debt repurchased or prepaid after January 30,
2004 in accordance with the terms of this Agreement, including Debt in respect
of the LYONs repurchased by the Borrower for cash in connection with the
October 31, 2004 put, and (z) any Debt extending


 

















 


the maturity of,
or refunding or refinancing, in whole or in part, any such Debt described in
this clause (B), provided that, in the case of Debt issued under clauses
(y) and (z) above, (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) the direct and contingent obligors therefor shall not be
changed as a result of or in connection with such reissuance, extension,
refunding or refinancing and (3) such Debt shall have a maturity date no earlier
than 90 days after the Maturity Date, provided  further that in
the case of Debt issued under clause (z) above, the principal amount of such
Debt shall not be increased above the sum of (1) principal amount thereof
outstanding immediately prior to such extension, refunding or refinancing, and
(2) any fees and expenses in connection therewith,


 


(c)           Section 5.19(x) is amended in full to
read as follows:


 


(x)            Investments in the
Borrower’s Liquid Yield Option-TM- Notes due 2021 (the “LYONs”) in an
aggregate amount not to exceed $455,000,000, 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) no Advances are outstanding
immediately before or immediately after making such Investment, (3) immediately
before and after giving effect thereto, the Borrower has Unrestricted Domestic
Cash and Marketable Securities in an aggregate amount of not less than
$400,000,000 and (4) immediately after such Investment, the subject LYONs shall
be cancelled; and


 


(d)           Section 5.19(xi) is amended in full
to read as follows:


 


(xi)           other Investments
made after the January 30, 2004 in an aggregate amount invested not to exceed
$500,000,000, 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)
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, (3) immediately before and after giving effect thereto and to the
repayment of any assumed Debt within 30 days after the consummation thereof,
the Borrower has Unrestricted Domestic Cash and Marketable Securities in an
aggregate amount of not less than $400,000,000, (4) immediately before and
after giving effect thereto, no Advances shall be outstanding hereunder, (5)
the Borrower shall have pro forma positive “Free Cash Flow” (as defined below)
for the period of four fiscal quarters most recently ended, calculated based on
the financial statements most recently delivered to the Lenders pursuant to
Section 5.02 and as though such Investment and any repayment of any assumed
Debt in connection therewith had occurred at the beginning of the four-quarter
period covered thereby, (6) no single Investment shall be made for
consideration of cash and/or assumed Debt in excess of


 


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$250,000,000, (7)
the Borrower shall have a pro forma ratio of Debt to Consolidated EBITDA for
the period of four fiscal quarters most recently ended, calculated based on the
financial statements most recently delivered to the Lenders pursuant to Section
5.02 and as though such Investment had occurred at the beginning of the
four-quarter period covered thereby, of no greater that the actual ratio of
Debt to Consolidated EBITDA for such period, calculated without giving effect
to any Excess Assumed Debt (as defined below), provided that,
notwithstanding the limitation set forth in this clause (7), the Borrower may
assume Debt in excess of the amount otherwise applicable under this clause (7)
(“Excess Assumed Debt”) up to an aggregate principal amount of
$200,000,000 after January 30, 2004 so long as such Debt would be permitted as,
and subject to the restrictions on, reissued Debt under Section 5.17(B)(z), (8)
any Debt assumed in connection with such Investment (x) shall have a maturity
date no earlier than 90 days after the Maturity Date or (y) shall be repaid
within 30 days after the consummation thereof and (9) the Chief Financial
Officer of the Borrower shall have delivered to the Lenders a certificate as to
the satisfaction of the conditions set forth in clauses (1) through (8) above,
including in reasonable detail the calculations necessary for determination of
the calculations required by clauses (2), (3), (5) and (7) above, and
certifying the total consideration to be paid for such Investment.  “Free Cash Flow” means net cash
provided by (used for) operating activities minus capital expenditures minus
dividends, calculated based on the financial statements delivered to the
Lenders pursuant to Section 5.02.


 


(e)           Section 5.22 is amended in full to
read as follows:


 


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;


 


(ii)           required repayments
and redemptions of the LYONs or as otherwise permitted by Section 5.19(x); and


 


(iii)          the prepayment of
long-term Debt (other than the LYONs) for an aggregate cash consideration after
January 30, 2004 of not more than the sum of $500,000,000 plus the principal
amount of any Debt assumed in connection with an acquisition and repaid within
30 days after the consummation of such acquisition, 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)
immediately before and after giving effect thereto, the Borrower has
Unrestricted Domestic Cash and Marketable Securities in an aggregate amount of
not less than $400,000,000 and (3) immediately before and after giving effect
thereto, no Advances shall be outstanding hereunder, or


 


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(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.


 


(f)            A new Section 5.23 is added to read
as follows:


 


SECTION 5.23.  Free Cash Flow.  It will maintain, as of the end of each
period of four quarters, commencing on the earlier of (i) first date after
January 30, 2004 that Debt is repurchased or prepaid in accordance with Section
5.22 and (ii) the first date after January 30, 2004 that the Borrower
consummates an Investment for a total consideration of $100,000,000 or more,
positive Free Cash Flow (as defined in Section 5.19(xi)).


 


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


 


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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 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.


 


(f)            Prior to the date
hereof, the Borrower has made Investments in the Borrower’s LYONs in an
aggregate amount of not more than $140,000,000.


 


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


 


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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

  	
  /s/ Garry K. McGuire

  	
   

  
	
   

  	
   

  	
  Title: Chief Financial
  Officer

  
	
   

  	
   

  	
   

  
	
   

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

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Thomas Labergere

  	
   

  
	
   

  	
   

  	
  Name: Thomas
  Labergere

  
	
   

  	
   

  	
  Title: Director

  
	
   

  	
   

  	
   

  
	
   

  	
  BANK ONE, NA (Main
  Office Chicago)

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/  Dianne M. Stark

  	
   

  
	
   

  	
   

  	
  Name: Dianne M. Stark

  
	
   

  	
   

  	
  Title: First Vice
  President

  
	
   

  	
   

  	
   

  
	
   

  	
  JPMORGAN CHASE BANK

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/
  Edmond DeForest

  	
   

  
	
   

  	
   

  	
  Name: Edmond DeForest

  
	
   

  	
   

  	
  Title: Vice President

  



 


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  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, Jr.

  	
   

  
	
   

  	
   

  	
  Name: Robert S. Taylor,
  Jr.

  
	
   

  	
   

  	
  Title: Senior Vice
  President

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/
  Henry Spark

  	
   

  
	
   

  	
   

  	
  Name: Henry Spark

  
	
   

  	
   

  	
  Title: Assistant
  Treasurer

  
	
   

  	
   

  	
   

  
	
   

  	
  THE BANK OF NEW YORK

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Ernest Fung

  	
   

  
	
   

  	
   

  	
  Name: Ernest
  Fung

  
	
   

  	
   

  	
  Title: 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/
  Peter Chauvin

  	
   

  
	
   

  	
   

  	
  Name: Peter Chauvin

  
	
   

  	
   

  	
  Title: Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/
  Alain Dauost

  	
   

  
	
   

  	
   

  	
  Name: Alain Dauost

  
	
   

  	
   

  	
  Title: Director

  



 


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  HSBC BANK USA

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/
  Jeffrey Rothman

  	
   

  
	
   

  	
   

  	
  Name: Jeffrey Rothman

  
	
   

  	
   

  	
  Title: Senior Vice
  President

  
	
   

  	
   

  	
   

  
	
   

  	
  THE NORTHERN TRUST
  COMPANY

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/
  Timothy J. Dunning

  	
   

  
	
   

  	
   

  	
  Name: Timothy J.
  Dunning

  
	
   

  	
   

  	
  Title: Vice President –
  Credit Products

  
	
   

  	
   

  	
   

  
	
   

  	
  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:

  



 


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