Exhibit 10.1


 


EXECUTION COPY


 


AMENDMENT NO. 6 TO THE

AMENDED AND RESTATED FIVE YEAR REVOLVING CREDIT FACILITY

AGREEMENT


 


Dated as of October 4,
2004


 


AMENDMENT NO. 6 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, Amendment No. 4 dated as of
February 6, 2004 and Amendment No. 5 dated as of March 3, 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.           Amendments
to Credit Agreement.  (a)  Section 5.19(xi) is amended by (i) deleting
the date “January 30, 2004” in the first instance where such date appears and
substituting therefor the date “September 30, 2004”, (ii) deleting the figure
“$500,000,000” and substituting therefor the figure “$1,000,000,000”, (iii) by
deleting from clause (6) the figure “$200,000,000” and substituting therefor
the phrase “the sum of (x) $200,000,000 plus (y) the amount of long-term Debt
prepaid after March 31, 2004 in accordance with the provisions of Section
5.22(a)(iii)” and (iv) by deleting from clause (6) the reference to “Section
5.17(B)(z)” and substituting therefor a reference to “Section 5.17(ii)(B)(z)”.


 


(b)           Section
5.22(a)(iii) is amended by deleting the date “January 30, 2004” and
substituting therefor the date “September 30, 2004”, (ii) deleting the figure
“$500,000,000” and substituting therefor the figure “$360,000,000”.


 


SECTION 2.           Authorization
of Partial Release.  The Agent is
hereby authorized, by and on behalf of the Lenders, to consent to the release
from the Lien under the Collateral Documents of all assets that have been or
are hereafter sold or otherwise disposed of by the Borrower or its subsidiaries
to CIT Communications Finance Corporation (“CIT”) pursuant to the terms
of (a) that certain Master Assignment Agreement between Avaya World Services,
Inc. and CIT dated August 26, 2002, as in effect on the date hereof, or (b)
that certain Master


 

















 


Assignment Agreement between the Borrower and CIT dated January 1,
2003, as in effect on the date hereof, and to deliver such consent to the Collateral
Trustee.


 


SECTION 3.           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 4.           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


 


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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.


 


SECTION 5.           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 6.           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 7.           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 8.           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

  	
  /s/ Peter Hong

  	
   

  
	
   

  	
   

  	
  Title: Vice President
  and Treasurer

  
	
   

  	
   

  	
   

  
	
   

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

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Maureen Maroney

  	
   

  
	
   

  	
   

  	
  Name: Maureen Maroney

  
	
   

  	
   

  	
  Title: Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  BANK ONE, NA (Main
  Office Chicago)

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Christian Walsh

  	
   

  
	
   

  	
   

  	
  Name: Christian Walsh

  
	
   

  	
   

  	
  Title: Managing
  Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  JPMORGAN CHASE BANK

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Edmond Deforest

  	
   

  
	
   

  	
   

  	
  Name: Edmond Deforest

  
	
   

  	
   

  	
  Title: Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  DEUTSCHE BANK AG NEW
  YORK BRANCH

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ William W. McGinty

  	
   

  
	
   

  	
   

  	
  Name: William W.
  McGinty

  
	
   

  	
   

  	
  Title: Director

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Andreas Neumeier

  	
   

  
	
   

  	
   

  	
  Name: Andreas Neumeier

  
	
   

  	
   

  	
  Title: Director

  



 


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  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: Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
  THE BANK OF NEW YORK

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
  THE BANK OF TOKYO –

  
	
   

  	
  MITSUBISHI LTD., NEW
  YORK BRANCH

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Lillian Kim

  	
   

  
	
   

  	
   

  	
  Name: Lillian Kim

  
	
   

  	
   

  	
  Title: Authorized
  Signatory

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  CREDIT SUISSE FIRST
  BOSTON

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
  HSBC BANK USA

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Jeffrey Rothman

  	
   

  
	
   

  	
   

  	
  Name: Jeffrey Rothman

  
	
   

  	
   

  	
  Title: Managing
  Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  THE NORTHERN TRUST
  COMPANY

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


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  SUMITOMO MITSUI BANKING

  CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
  WESTDEUTSCHE LANDESBANK

  GIROZENTRALE, NEW YORK BRANCH

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


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