EXECUTION COPY
AMENDED AND RESTATED CREDIT AGREEMENT
AMENDED AND RESTATED CREDIT AGREEMENT dated as of April 8, 2002 among
NORTEL NETWORKS LIMITED and the BANKS listed on the signature pages hereof (the
"Banks").
W I T N E S S E T H :
WHEREAS, Nortel Networks Limited and the banks parties thereto have
heretofore entered into a 364 Day Credit Agreement dated as of April 12, 2000
among Nortel Networks Limited, the banks and co-agents parties thereto and ▇.▇.
▇▇▇▇▇▇ Bank Canada, as Administrative Agent, as amended by the Amended and
Restated Credit Agreement dated as of April 11, 2001 (the "Agreement"); and
WHEREAS, the parties hereto desire to amend the Agreement to extend the
termination date for an additional period of less than one year, to delete the
term-out option, to increase pricing and to provide for a reduction in
commitments, as more fully set forth below;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Definitions; References. Unless otherwise specifically
defined herein, each term used herein which is defined in the Agreement shall
have the meaning assigned to such term in the Agreement. Each reference to
"hereof", "hereunder", "herein" and "hereby" and each other similar reference
and each reference to "this Agreement" and each other similar reference
contained in the Agreement shall from and after the date hereof refer to the
Agreement as amended hereby.
SECTION 2. Extension of Revolving Credit Period. The definition of
"Termination Date" in Section 1.01 of the Agreement is amended to replace "April
10, 2002" with "April 7, 2003".
SECTION 3. Deletion of Term-Out Option. (a) Section 2.01 of the
Agreement is amended to replace subsection (b) thereof with the following:
(b) [intentionally deleted]
(b) The second sentence of Section 2.06 is deleted.
SECTION 4. Pricing Increase. (a) Section 1.01 of the Agreement is
amended to add the following definitions in appropriate alphabetical order:
"Euro-Dollar Margin" means a rate per annum
determined in accordance with the Pricing Schedule.
"Pricing Schedule" means the schedule attached hereto
as Annex A.
(b) Section 2.07(b) of the Agreement is amended to delete the
definitions of "Euro-Dollar Margin" and "Utilization".
(c) Section 2.08(a) of the Agreement is amended to replace the words
"rate per annum of 0.05%" in the second line thereof with the words "Facility
Fee Rate determined daily in accordance with, and as defined in, the Pricing
Schedule".
(d) The Agreement is amended to add immediately before Exhibit A to
the Agreement the Pricing Schedule attached hereto.
SECTION 5. Governing Law. This Amended and Restated Credit Agreement
shall be governed by and construed in accordance with the laws of the State of
New York.
SECTION 6. Counterparts; Effectiveness; Reduction in Commitments. This
Amended and Restated Credit Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument. This Amended and
Restated Credit Agreement shall become effective as of the date hereof when the
Administrative Agent shall have received:
(a) duly executed counterparts hereof signed by the Company and the
Banks (or, in the case of any party as to which an executed counterpart shall
not have been received, the Administrative Agent shall have received
telegraphic, telex or other written confirmation from such party of execution of
a counterpart hereof by such party);
(b) receipt by the Administrative Agent for the account of each Bank
of an amendment fee equal to 0.125% of such Bank's Commitment (after giving
effect to the reduction referred to below);
(c) an opinion of ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Chief Legal Officer of the
Company, substantially in the form of Exhibit A hereto; and
(d) all documents the Administrative Agent may reasonably request
relating to the existence of the Company, the corporate authority for and the
validity of the Agreement as amended by this Amended and Restated Credit
Agreement, and any other matters relevant hereto, all in form and substance
satisfactory to the Administrative Agent.
On the effective date of this Amended and Restated Credit Agreement,
the Commitments shall be reduced automatically by $131,428,571.00.
IN WITNESS WHEREOF, the parties hereto have caused this Amended and
Restated Credit Agreement to be duly executed as of the date first above
written.
NORTEL NETWORKS LIMITED
By:
------------------------------
Name:
Title:
By:
------------------------------
Name:
Title:
BANKS
By signing below, each Bank confirms that it is a resident of Canada
for the purposes of withholding tax pursuant to Part XIII of the Income Tax Act
of Canada.
Name of Bank:
By
------------------------------
Name:
Title:
By
------------------------------
Name:
Title:
ANNEX A - Pricing Schedule
PRICING SCHEDULE
Each of "Euro-Dollar Margin" and "Facility Fee Rate" means,
for any date, the rate set forth below in the row opposite such term and in the
column corresponding to the "Pricing Level" that applies at such date:
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Level I Level II Level III Level IV Level V Level VI
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Euro-Dollar
Margin:
Utilization < 33.3% 0.775% 1.00% 1.20% 1.50% 1.625% 1.75%
Utilization > 33.3% but < 66.6% 0.90% 1.125% 1.325% 1.625% 1.75% 1.875%
Utilization > 66.66% 1.15% 1.375% 1.575% 1.875% 2.00% 2.125%
Facility Fee Rate 0.10% 0.125% 0.175% 0.25% 0.375% 0.50%
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For purposes of this Schedule, the following terms have the following
meanings:
"Level I Pricing" applies at any date if, at such date, the Company's
long- term debt is rated BBB+ or higher by S&P or Baa1 or higher by Moody's,
except as provided below under "Split Rating".
"Level II Pricing" applies at any date if, at such date, (i) the
Company's long-term debt is rated BBB or higher by S&P or Baa2 or higher by
Moody's, and (ii) Level I Pricing does not apply, except as provided below under
"Split Rating".
"Level III Pricing" applies at any date if, at such date, (i) the
Company's long-term debt is rated BBB- or higher by S&P or Baa3 or higher by
Moody's and (ii) neither Level I Pricing nor Level II Pricing applies, except as
provided below under "Split Rating".
"Level IV Pricing" applies at any date if, at such date, (i) the
Company's long-term debt is rated BB+ or higher by S&P and Ba1 or higher by
Moody's and (ii) none of Level I Pricing, Level II Pricing or Level III Pricing
applies, except as provided below under "Split Rating".
"Level V Pricing" applies at any date if, at such date, (i) the
Company's long-term debt is rated BB or higher by S&P and Ba2 or higher by
Moody's and (ii) none of Level I Pricing, Level II Pricing, Level III Pricing or
Level IV applies, except as provided below under "Split Rating".
"Level VI Pricing" applies at any date if, at such date, none of Level
I Pricing, Level II Pricing, Level III Pricing, Level IV Pricing or Level V
Pricing applies.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Pricing Level" refers to the determination of which of Level I, Level
II Level III, Level IV, Level V or Level VI applies at any date.
"S&P" means Standard & Poor's Ratings Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
"Utilization" means, on any day, the percentage equivalent of a
fraction, (i) the numerator of which is the aggregate outstanding principal
amount of the Loans on such day, after giving effect to any borrowing or payment
on such day, and (ii) the denominator of which is the aggregate amount of the
Commitments on such day, after giving effect to any reduction of the Commitments
on such day.
"Split Rating" applies if the Company has a split rating and the
ratings differential is two levels or more, in which case the ratings at
midpoint will apply. If there is no midpoint rating, the higher of the two
intermediate ratings will apply, except that if one rating is at Level III
Pricing and the other rating is at Level IV Pricing, Level IV Pricing shall
apply.
The credit ratings to be utilized for purposes of this Schedule are
those assigned to the senior unsecured long-term debt securities of the Company
without third-party credit enhancement, and any rating assigned to any other
debt security of the Company shall be disregarded. The rating in effect at any
date is that in effect at the close of business on such date.
EXHIBIT A
OPINION OF
COUNSEL FOR THE COMPANY
April 8, 2002
To the Banks and the Administrative Agent
Referred to Below
c/o ▇.▇. ▇▇▇▇▇▇ Bank Canada, as Administrative Agent
▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Dear Sirs:
I am the Chief Legal Officer of Nortel Networks Limited (the
"Corporation") and give this opinion pursuant to Section 6(c) of the Amended and
Restated Credit Agreement dated as of April 8, 2002 among the Corporation and
the banks (the "Banks") parties thereto (the "Amended and Restated Credit
Agreement") amending the 364 Day Credit Agreement dated as of April 12, 2000
among the Corporation, the banks and co-agents parties thereto and ▇.▇. ▇▇▇▇▇▇
Bank Canada, as Administrative Agent (as previously amended and in effect prior
to the effectiveness of the Amended and Restated Credit Agreement, the "Existing
Credit Agreement", and as amended by the Amended and Restated Credit Agreement,
the "Amended Credit Agreement"). Terms defined in the Existing Credit Agreement
are used herein as therein defined.
I have examined originals or copies, certified or otherwise identified
to my satisfaction, of such documents, corporate records, certificates of public
officials and other instruments and have conducted such other investigations of
fact and law as I have deemed necessary or advisable for purposes of this
opinion.
In rendering this opinion, I have assumed:
(a) the signatures on the documents I have examined are
originals; and
(b) with respect to the valid, binding and enforceable nature
of the
Amended and Restated Credit Agreement, the Amended Credit Agreement and
the Notes and the delivery of the Amended and Restated Credit
Agreement, the laws of the State of New York are the same as the laws
of the Province of Ontario and the federal laws of Canada applicable
therein.
The opinions expressed herein are subject to the following
qualifications:
(a) enforceability of the Amended and Restated Credit
Agreement, the Amended Credit Agreement and the Notes may be limited by
bankruptcy, insolvency, reorganization, arrangement, moratorium or
other laws affecting the enforcement of creditors' rights generally;
(b) enforceability of the Amended and Restated Credit
Agreement and the Amended Credit Agreement and the Notes may be limited
by general principles of equity, including the fact that equitable
remedies, including remedies of specific performance and injunction,
may only be granted in the discretion of a court of competent
jurisdiction;
(c) the Currency Act (Canada) precludes the courts in Canada
from awarding a judgment for an amount expressed in a currency other
than Canadian dollars;
(d) any requirement to pay interest at a greater rate after
than before default may not be enforceable if the same is construed by
a court to constitute a penalty or is contrary to the Interest Act
(Canada); and
(e) the enforceability of a provision which purports to waive
any statutory rights may not be enforceable.
In expressing the opinions stated in 1, 2 and 3 below, I have relied
exclusively upon the opinion of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Assistant Secretary of the
Corporation, dated the date hereof (the "Opinion"), a copy of which is attached
hereto as Schedule A. The opinions expressed herein are limited in scope to the
matters addressed in the Opinion, and to the extent any such opinion is stated
to be based on any assumption or to be given in reliance on any certificate or
other document or to be subject to any limitation, qualification or exemption,
the opinions expressed herein in reliance on such opinion are based upon the
same assumption, are given in reliance on the same certificate or document, and
are subject to the same limitation, qualification or exemption. I have reviewed
the Opinion and found it to be satisfactory in form and scope to address the
matter for which it has been relied upon by me herein.
Upon the basis of the foregoing, I am of the opinion that:
1. The Corporation is a corporation duly incorporated and validly
existing under the laws of Canada and has all corporate powers and all
governmental licenses, authorizations, consents and approvals required to carry
on its business as now conducted, the absence of which would have a material
adverse effect on the ability of the Corporation to perform its obligations
under the Amended Credit Agreement.
2. The execution and delivery by the Corporation of the Amended and
Restated Credit Agreement and the performance by the Corporation of the Amended
Credit Agreement (i) are within the Corporation's corporate powers and have been
duly authorized by all necessary corporate action, (ii) require no action by or
in respect of, or filing with, any governmental body, agency or official, except
for any such filing required pursuant to Section 5.04 of the Amended Credit
Agreement and (iii) do not contravene any provision of applicable law or
regulation or any provision of the certificate of incorporation or by-laws of
the Corporation or any contractual restriction, order, decree or other
instrument binding upon the Corporation or any of its Subsidiaries, except in
the case of (ii) and (iii) above, any such action, filing or contravention which
would not have a material adverse effect on the ability of the Corporation to
perform its obligations under the Amended Credit Agreement.
3. Assuming the execution and delivery of the Amended and Restated
Credit Agreement and the Existing Credit Agreement and the performance of the
Amended Credit Agreement by each of the parties thereto, other than the
Corporation, are within such persons' corporate powers and have been duly
authorized by all necessary corporate action and that the Amended and Restated
Credit Agreement and the Existing Credit Agreement have been duly executed and
delivered by each of such parties, other than the Corporation, each of the
Amended and Restated Credit Agreement and the Amended Credit Agreement
constitutes a valid and binding agreement of the Corporation and each Note
constitutes a valid and binding obligation of the Corporation, in each case
enforceable in accordance with its terms.
4. To the best of my knowledge, there is no action, suit or proceeding
pending or threatened against or affecting the Corporation or any of its
Subsidiaries before any court or arbitrator or any governmental body, agency or
official, in which there is a reasonable possibility of an adverse decision
which could have a material adverse effect on the ability of the Corporation to
perform its obligations under the Amended Credit Agreement, or which in any
manner draws into question the validity of the Amended Credit Agreement except
as disclosed in the Corporation's periodic reports and the Securities Exchange
Act of 1934, as amended.
Yours truly,
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Chief Legal Officer
Schedule A
April 8, 2002
Mr. N.J. ▇▇▇▇▇▇
Chief Legal Officer
Nortel Networks Limited
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
Dear Sir:
I am Assistant Secretary of Nortel Networks Limited (the "Corporation"). I
understand that you will rely on this opinion letter in connection with the
delivery of your opinion pursuant to Section 6(c) of the Amended and Restated
Credit Agreement dated as of April 8, 2002 among the Corporation and the banks
(the "Banks") parties thereto (the "Amended and Restated Credit Agreement")
amending the 364 Day Credit Agreement dated as of April 12, 2000 among the
Corporation, the banks and co-agents parties thereto and ▇.▇. ▇▇▇▇▇▇ Canada, as
Administrative Agent (as previously amended and in effect prior to the
effectiveness of the Amended and Restated Credit Agreement, the "Existing Credit
Agreement", and as amended by the Amended and Restated Credit Agreement, the
"Amended Credit Agreement"). Terms defined in the Existing Credit Agreement are
used herein as therein defined.
I have examined originals or copies, certified or otherwise identified to my
satisfaction, of such documents, corporate records, certificates of public
officials and other instruments and have conducted such other investigations of
fact and law as I have deemed necessary or advisable for purposes of this
opinion.
In rendering this opinion, I have assumed:
(a) the signatures on the documents I have examined are originals; and
(b) with respect to the valid, binding and enforceable nature of the Amended
and Restated Credit Agreement, the Amended Credit Agreement and the Notes
and the delivery of the Amended and Restated Credit Agreement, the laws of
the State of New York are the same as the laws of the Province of Ontario
and the federal laws of Canada applicable therein.
I am qualified to practice law solely in the Province of Ontario, Canada and
express no opinion as to any laws or matters governed by any laws other than the
laws of the Province of Ontario and the federal laws of Canada applicable
therein.
The opinions expressed herein are subject to the following qualifications:
(a) enforceability of the Amended and Restated Credit, the Amended Credit
Agreement and the Notes may be limited by bankruptcy, insolvency,
reorganization, arrangement, moratorium or other laws affecting the
enforcement of creditors' rights generally;
(b) enforceability of the Amended and Restated Credit Agreement, the Amended
Credit Agreement and the Notes may be limited by general principles of
equity, including the fact that equitable remedies, including remedies of
specific performance and injunction, may only be granted in the discretion
of a court of competent jurisdiction;
(c) the Currency Act (Canada) precludes the courts in Canada from awarding a
judgment for an amount expressed in a currency other than Canadian dollars;
(d) any requirement to pay interest at a greater rate after than before default
may not be enforceable if the same is construed by a court to constitute a
penalty or is contrary to the Interest Act (Canada); and
(e) the enforceability of a provision which purports to waive any statutory
rights may not be enforceable.
Upon the basis of the foregoing, I am of the opinion that:
(a) the Corporation is a corporation duly incorporated and validly existing
under the laws of Canada and has all corporate powers and all governmental
licenses, authorizations, consents and approvals required to carry on its
business as now conducted, the absence of which would have a material
adverse effect on the ability of the Corporation to perform its obligations
under the Amended Credit Agreement;
(b) the execution and delivery by the Corporation of the Amended and Restated
Credit Agreement and the performance by the Corporation of the Amended
Credit Agreement (i) are within the Corporation's corporate powers and have
been duly authorized by all necessary corporate action, (ii) require no
action by or in respect of, or filing with, any governmental body, agency
or official, except for any such filing required pursuant to Section 5.04
of the Amended Credit Agreement and (iii) do not contravene any provision
of applicable law or regulation or any provision of the certificate of
incorporation or by-laws of the Corporation or any contractual restriction,
order, decree or other instrument binding upon the Corporation or any of
its Subsidiaries, except in the case of (ii) and (iii) above, any such
action, filing or contravention which would not have a material adverse
effect on the ability of the Corporation to perform its obligations under
the Amended Credit Agreement; and
(c) Assuming the execution and delivery of the Amended and Restated Credit
Agreement and the Existing Agreement and the performance of the Amended and
Restated Credit Agreement by each of the parties thereto, other than the
Corporation, are within such persons' corporate powers and have been duly
authorized by all necessary corporate action, and that the Amended and
Restated Credit Agreement and the Existing Credit Agreement have been duly
executed and delivered by each of such parties, other than the Corporation,
each of the Amended and Restated Credit Agreement and the Amended Credit
Agreement constitutes a valid and binding agreement of the Corporation, and
each Note constitutes a valid and binding obligation of the Corporation, in
each case enforceable in accordance with its terms.
This opinion is furnished solely for your benefit in connection with the
aforementioned delivery of your opinion letter (including as an attachment to
your opinion) in connection with the Amended and Restated Credit Agreement and
is not to be used, circulated or quoted or otherwise referred to for any other
purpose.
Yours truly,
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Assistant Secretary