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Exhibit 99.2
CONFORMED COPY
FIRST AMENDMENT TO FIVE-YEAR REVOLVING CREDIT FACILITY AGREEMENT
and
FIRST AMENDMENT TO GUARANTEE AND COLLATERAL AGREEMENT
FIRST AMENDMENT, dated as of June 11, 2001, to the Five-Year
Revolving Credit Facility Agreement, dated as of February 22, 2001 (as amended,
modified or supplemented from time to time, the "Credit Agreement"), among
LUCENT TECHNOLOGIES INC., a Delaware corporation (the "Borrower"), the several
banks and other financial institutions or entities from time to time parties
thereto (the "Lenders"), ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC., as Syndication Agent, and
THE CHASE MANHATTAN BANK, as Administrative Agent for the Lenders (in such
capacity, the "Administrative Agent"); and
FIRST AMENDMENT, dated as of June 11, 2001 (together with the
amendment to the Credit Agreement referred to above, this "Amendment"), to the
Guarantee and Collateral Agreement, dated as of February 22, 2001 (as amended,
modified or supplemented from time to time, the "Guarantee and Collateral
Agreement"), made by the Borrower and certain of its subsidiaries (collectively,
the "Grantors") in favor of The Chase Manhattan Bank, as Collateral Agent (in
such capacity, the "Collateral Agent").
WHEREAS, pursuant to the Credit Agreement, the Lenders have
agreed to make, and have made, certain loans and other extensions of credit to
the Borrower;
WHEREAS, pursuant to the Guarantee and Collateral Agreement,
the Grantors have granted Liens in favor of the Collateral Agent, for the
benefit of the Secured Parties referred to therein, on their properties to
secure their obligations and liabilities to the Secured Parties upon the terms
and subject to the conditions set forth therein; and
WHEREAS, the Borrower has requested that the Lenders agree to
certain amendments to the Credit Agreement and the Guarantee and Collateral
Agreement and, upon this Amendment becoming effective, the Lenders will have
agreed to amend certain provisions of the Credit Agreement and the Guarantee and
Collateral Agreement, in each case in the manner provided for in this Amendment.
NOW THEREFORE, in consideration of the premises and the
agreements hereinafter set forth, the parties hereto hereby agree as follows:
SECTION 1. Defined Terms. Terms defined in the Credit
Agreement and used herein shall have the meanings given to them in the Credit
Agreement.
SECTION 2. Amendments to the Credit Agreement.
2.1. Amendments to Section 1.01 of the Credit Agreement.
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(a) The definition of "Indebtedness" in Section 1.01 of the
Credit Agreement is hereby amended by (i) deleting the word "and" at the end of
clause (i) therein and substituting "," in lieu thereof, (ii) deleting the "."
at the end of clause (j) therein and substituting "and" in lieu thereof and
(iii) adding the following clause (k) at the end of clause (j) therein:
(k) to the extent not otherwise included, indebtedness or
similar obligations (including, if applicable, net investment
amounts) pursuant to any receivables securitization.
(b) Clause (iv) in the definition of "Capital Markets Event"
in Section 1.01 of the Credit Agreement is hereby amended in full to read as
follows:
(iv) commercial paper and other Short-Term Indebtedness (other
than Short-Term Indebtedness incurred in a receivables
securitization or under a syndicated line of credit or other
credit facility),
(c) The definition of "CMO Transaction" in Section 1.01 of the
Credit Agreement is hereby amended in full to read as follows:
"CMO Transaction" shall mean any financing
arrangement involving (i) the incurrence of Indebtedness
supported by Liens (or Indebtedness secured by Liens) on real
estate owned by the Borrower or any Subsidiary, or on the
Capital Stock of any Subsidiary formed exclusively to hold any
direct or indirect interest in such real estate, and on
related assets (including reserve accounts) or (ii) the
issuance of Capital Stock of a Real Estate Subsidiary.
(d) The definition of "Restricted Payment" in Section 1.01 of
the Credit Agreement is hereby amended in full to read as follows:
"Restricted Payment" shall mean any dividend or other
distribution (whether in cash, securities or other property)
with respect to any shares of any class of Capital Stock of
the Borrower or any Subsidiary, or any payment (whether in
cash, securities or other property), including any sinking
fund or similar deposit, on account of the purchase,
redemption, retirement, acquisition, cancellation or
termination of any such shares of Capital Stock of the
Borrower or any Subsidiary or any option, warrant or other
right to acquire any such shares of Capital Stock of the
Borrower or any Subsidiary; provided, however, that any such
dividend, other distribution or payment made in the common
stock of the Borrower shall not constitute a "Restricted
Payment."
(e) The definition of "Subsidiary" in Section 1.01 of the
Credit Agreement is hereby amended in full to read as follows:
"Subsidiary" shall mean any corporation, partnership,
limited liability company or other entity, a majority of the
Voting Shares or other ownership interests having ordinary
voting power (other than only by reason of the happening of a
contingency) of which are at the time owned or controlled,
directly or indirectly, by the Borrower or by one or more
Subsidiaries of the Borrower,
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excluding any such Person that (a) would not constitute a
consolidated subsidiary of the Borrower in accordance with
GAAP and (b) is not Controlled (directly or indirectly) by the
Borrower. Unless otherwise qualified, all references to a
"Subsidiary" or to "Subsidiaries" in this Agreement shall
refer to a Subsidiary or Subsidiaries of the Borrower. On and
after the date of the Agere IPO, Agere and its Subsidiaries
shall be deemed not to constitute Subsidiaries of the Borrower
for the purposes of Articles III, V and VI.
(f) The definition of "Subsidiary Guarantors" in Section 1.01
of the Credit Agreement is hereby amended in full to read as follows:
"Subsidiary Guarantors" shall mean each Wholly Owned
Material Domestic Subsidiary (excluding any Receivables
Subsidiary or Real Estate Subsidiary) other than Agere and its
Subsidiaries, provided, that if the Agere IPO does not occur
on or prior to April 30, 2001, Agere and its Wholly Owned
Material Domestic Subsidiaries shall become Guarantors as
provided in Section 5.11(c).
(g) Section 1.01 of the Credit Agreement is hereby amended by
inserting the following new definitions in the appropriate alphabetical order:
"Accounts" shall have the meaning given to such term
in the Uniform Commercial Code as in effect in the State of
New York; and, with respect to the Borrower and its
Subsidiaries, all such Accounts of such Persons, whether now
existing or existing in the future, including, without
limitation, (i) all accounts receivable of such Person
(whether or not specifically listed on schedules furnished to
the Administrative Agent) including, without limitation, all
accounts created by or arising from all of such Person's
software licensing arrangements or sales of goods or rendition
of services made under any of its trade names, or through any
of its divisions, (ii) all unpaid rights of such Person
(including rescission, replevin, reclamation and stopping in
transit) relating to the foregoing or arising therefrom, (iii)
all rights to any goods represented by any of the foregoing,
including returned or repossessed goods, (iv) all reserves and
credit balances held by such Person with respect to any such
accounts receivable or any obligors thereon, (v) all letters
of credit, guarantees or collateral for any of the foregoing
and (vi) all insurance policies or rights relating to any of
the foregoing.
"Real Estate Subsidiary" shall mean any special
purpose Subsidiary formed in connection with and to facilitate
a Sale and Leaseback Transaction or a CMO Transaction and
designated as such by the Borrower in a notice to the
Administrative Agent and that engages in no operations or
activities other than those related to or contemplated by such
transaction or as are incidental thereto.
"Receivables" shall mean all Accounts and accounts
receivable of the Borrower or any of its Subsidiaries
(including any thereof constituting or evidenced by chattel
paper, instruments or general intangibles), and all proceeds
thereof and rights (contractual and other) and collateral
related thereto.
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"Receivables Subsidiary" shall mean any special
purpose, bankruptcy-remote Subsidiary that acquires, on a
revolving basis, Receivables generated by the Borrower or any
of its Subsidiaries and that engages in no operations or
activities other than those related to receivables
securitizations.
2.2. Amendment to Section 5.11(c)(iii) of the Credit
Agreement. Section 5.11(c)(iii) of the Credit Agreement is hereby amended by
inserting the parenthetical "(other than any Receivables Subsidiary or Real
Estate Subsidiary)" immediately after the words "Wholly Owned Subsidiary".
2.3. Amendment to Section 6.03(g) of the Credit Agreement.
Section 6.03(g) of the Credit Agreement is hereby amended in its entirety to
read as follows:
(g) Liens incurred pursuant to receivables
securitizations constituting Capital Markets Events and
related assignments and sales of any income or revenues
(including Receivables), including Liens on the assets of any
Receivables Subsidiary created pursuant to any receivables
securitization constituting a Capital Markets Event and Liens
incurred by the Borrower and its other Subsidiaries on
Receivables to secure obligations owing by them in respect of
any such receivables securitization to the extent reasonably
approved by the Administrative Agent;
2.4. Amendments to Section 6.05 of the Credit Agreement.
Section 6.05 of the Credit Agreement is hereby amended by (a) deleting the word
"and" at the end of clause (i) therein, (b) deleting the "." at the end of
clause (j) therein and substituting "; and" in lieu thereof and (c) adding the
following clause (k) at the end thereof:
(k) Investments comprised of capital contributions,
loans or deferred purchase price (whether in the form of cash,
a note or other assets) to any Receivables Subsidiary or Real
Estate Subsidiary.
SECTION 3. Amendments to Section 1.1 of the Guarantee and
Collateral Agreement.
(a) The definition of "Indebtedness" in Section 1.1 of the
Guarantee and Collateral Agreement is hereby amended by (i) deleting the word
"and" at the end of clause (ix) therein and substituting "," in lieu thereof,
(ii) deleting the "." at the end of clause (x) therein and substituting "and" in
lieu thereof and (iii) adding the following clause (xi) at the end of clause (x)
therein:
(xi) to the extent not otherwise included, indebtedness or
similar obligations (including, if applicable, net investment
amounts) pursuant to any receivables securitization.
(b) Clause (i) of the definition of "Excluded Property" in
Section 1.1 of the Guarantee and Collateral Agreement is hereby amended in full
to read as follows:
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(i) any Receivables, any right to payment arising from
software licensing arrangements, or loans made pursuant to
Vendor Financings (and, in each case, any related assets
including, without limitation, all deposit accounts, contract
rights, chattel paper, instruments, general intangibles and
other assets of any kind, in each case, for which any Grantor
has granted a security interest in such deposit accounts,
contract rights, chattel paper, instruments, general
intangibles and other assets in connection with a
securitization permitted by the Credit Agreements or such
Vendor Financing, as applicable) that are the subject of
securitizations permitted by the Credit Agreements,
(c) The definition of "Subsidiary" in Section 1.1 of the
Guarantee and Collateral Agreement is hereby amended in full to read as follows:
"Subsidiary": any corporation, partnership, limited
liability company or other entity, a majority of the Voting
Shares or other ownership interests having ordinary voting
power (other than only by reason of the happening of a
contingency) of which are at the time owned or controlled,
directly or indirectly, by the Borrower or by one or more
Subsidiaries of the Borrower, excluding any such Person that
(i) would not constitute a consolidated subsidiary of the
Borrower in accordance with GAAP and (ii) is not Controlled
(directly or indirectly) by the Borrower. Unless otherwise
qualified, all references to a "Subsidiary" or to
"Subsidiaries" in this Agreement shall refer to a Subsidiary
or Subsidiaries of the Borrower.
(d) Clause (i) of the first proviso in the definition of
"Pledged Stock" in Section 1.1 of the Guarantee and Collateral Agreement is
hereby amended in full to read as follows:
(i) any Capital Stock of any Subsidiary that is not a Material
Subsidiary and that is not a Receivables Subsidiary or (except
to the extent that, pursuant to the terms of the applicable
Sale and Leaseback Transaction or CMO Transaction, its Capital
Stock may not be pledged hereunder) a Real Estate Subsidiary
be required to be pledged hereunder
(e) The definition of "Subsidiary Guarantors" in Section 1.1
of the Guarantee and Collateral Agreement is hereby amended in full to read as
follows:
"Subsidiary Guarantors": each Wholly Owned Material
Domestic Subsidiary (other than any Receivables Subsidiary,
any Real Estate Subsidiary or Agere and its Subsidiaries),
provided, that if the Agere IPO does not occur on or prior to
April 30, 2001, Agere and its Wholly Owned Material Domestic
Subsidiaries shall become Guarantors as provided in Section
5.11(c) of each of the Credit Agreements.
(f) Section 1.1 of the Guarantee and Collateral Agreement is
hereby amended by inserting the following new definitions:
"Real Estate Subsidiary": any special purpose
Subsidiary formed in connection with and to facilitate a Sale
and Leaseback Transaction or a CMO
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Transaction (each as defined in the Credit Agreement) and
designated as such by the Borrower in a notice to the
Collateral Agent and that engages in no operations or
activities other than those related to or contemplated by such
transaction or as are incidental thereto.
"Receivables Subsidiary": any special purpose,
bankruptcy-remote Subsidiary that acquires, on a revolving
basis, Receivables generated by the Borrower or any of its
Subsidiaries and that engages in no operations or activities
other than those related to receivables securitizations.
SECTION 4. Authorization to Administrative Agent and
Collateral Agent. The Lenders hereby authorize and instruct each of the
Administrative Agent and the Collateral Agent to execute and deliver such
documents and instruments as it may reasonably deem appropriate to facilitate
any receivables securitization, CMO Transaction or Sale and Leaseback
Transaction permitted by the Credit Agreement as amended hereby, including any
UCC releases and any intercreditor agreements (the terms of which may include a
subordination of the Collateral Agent's security interest in certain Receivables
to facilitate any such receivables securitization).
SECTION 5. Conditions to Effectiveness. This Amendment shall
become effective as of the date set forth above (the "Amendment Effective Date")
when the Administrative Agent shall have received (i) counterparts of this
Amendment, duly executed and delivered by a duly authorized officer of the
Borrower and the Required Lenders and (ii) the First Amendment to the Lucent
364-Day Revolving Credit Facility Agreement, duly executed and delivered by the
Borrower and the Required Lenders (as defined in such Credit Agreement).
SECTION 6. Representations and Warranties. To induce the
Administrative Agent and the Lenders parties hereto to enter into this
Amendment, the Borrower hereby represents and warrants to the Administrative
Agent and all the other Lenders that (a) the representations and warranties set
forth in Article III of the Credit Agreement are true and correct in all
material respects on and as of the date hereof, except to the extent such
representations and warranties expressly relate to a specific earlier date, in
which case such representations and warranties were true and correct in all
material respects as of such earlier date, and (b) after giving effect to this
Amendment, no Default or Event of Default shall have occurred and be continuing.
SECTION 7. Payment of Expenses. The Borrower agrees to pay or
reimburse the Administrative Agent and the Syndication Agent for all of its
out-of-pocket costs and expenses incurred in connection with this Amendment, any
other documents prepared in connection herewith and the transactions
contemplated hereby, including, without limitation, the reasonable fees and
disbursements of counsel to the Administrative Agent and the Syndication Agent.
SECTION 8. Reference to and Effect on the Credit Documents. On
and after the Amendment Effective Date, (a) 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 the other Loan
Documents to "the Credit Agreement", "thereunder", "thereof" or words of like
import referring to the Credit Agreement, shall mean and be a reference to the
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Credit Agreement as amended hereby and (b) each reference in the Guarantee and
Collateral Agreement to "this Agreement", "hereunder", "hereof" or words of like
import referring to the Guarantee and Collateral Agreement, and each reference
in the other Loan Documents to "the Guarantee and Collateral Agreement",
"thereunder", "thereof" or words of like import referring to the Guarantee and
Collateral Agreement, shall mean and be a reference to the Guarantee and
Collateral Agreement as amended hereby. The execution, delivery and
effectiveness of this Amendment shall not operate as a waiver of any right,
power or remedy of any Lender or the Administrative Agent under any of the Loan
Documents. Except as expressly amended herein, all of the provisions of the
Credit Agreement and the other Loan Documents are and shall remain in full force
and effect in accordance with the terms thereof and are hereby in all respects
ratified and confirmed.
SECTION 9. Counterparts. This Amendment may be executed in two
or more counterparts (including by facsimile transmission), each of which shall
constitute an original, but all of which when taken together shall constitute
but one instrument.
SECTION 10. Headings. Section headings used in this Amendment
are for convenience of reference only, are not part of this Amendment and are
not to affect the construction of, or to be taken into consideration in
interpreting, this Amendment.
SECTION 11. 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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