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)