Exhibit 99.4
AMENDED AND RESTATED COLLATERAL SHARING AGREEMENT
Dated as of August 11, 2006
among
LUCENT TECHNOLOGIES INC.,
THE GRANTORS REFERRED TO HEREIN
and
JPMORGAN CHASE BANK, N.A.
as Collateral Agent
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AMENDED AND RESTATED COLLATERAL SHARING AGREEMENT, dated as of
August 11, 2006, among LUCENT TECHNOLOGIES INC., a Delaware corporation (the
"BORROWER"), the Grantors referred to in Section 6.11 hereof and JPMORGAN
CHASE BANK, N.A., as collateral agent (in such capacity, the "COLLATERAL
Agent").
W I T N E S S E T H :
WHEREAS, in order to induce the Banks parties thereto to enter into
the Credit Documents (such term and certain other capitalized terms used
herein being defined in Section 1.1), the Borrower and certain of its
Subsidiaries have entered into the Amended and Restated Guarantee and
Collateral Agreement dated the date hereof (the "GUARANTEE AND COLLATERAL
AGREEMENT");
WHEREAS, pursuant to the Guarantee and Collateral Agreement, the
Borrower has guaranteed certain External Sharing Debt Obligations of its
Subsidiaries, and certain Subsidiaries of the Borrower have guaranteed the
Borrower Obligations and certain External Sharing Debt Obligations of the
Borrower; and
WHEREAS, the Guaranteed Obligations are secured by Liens on the
Collateral described in the Security Documents;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements set forth herein and to induce the Administrative Agent and the
Banks to enter into the Credit Agreements, to induce the Banks to make their
respective extensions of credit to the Borrower thereunder and to induce the
holders of External Sharing Debt to maintain such Indebtedness, each Grantor
hereby agrees with the Collateral Agent, for the benefit of the Secured
Parties, as follows:
SECTION 1.
DEFINED TERMS
1.1 DEFINITIONS. (a) Unless otherwise defined herein, terms
defined in the Guarantee and Collateral Agreement and used herein shall have
the meanings given to them in the Guarantee and Collateral Agreement.
(b) The following terms shall have the respective meanings set
forth below:
"AGREEMENT" shall mean this Amended and Restated Collateral Sharing
Agreement as the same may from time to time be amended, supplemented or
otherwise modified.
"COLLATERAL" shall mean all property of the Credit Parties, now
owned or hereafter acquired, upon which a Lien is purported to be
created by any Security Document.
"COLLATERAL ACCOUNT" shall have the meaning assigned in Section 3.1.
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"COLLATERAL AGENT" shall mean JPMorgan Chase Bank, N.A., in its
capacity as collateral agent under the Security Documents and this
Agreement, and any successor collateral agent appointed hereunder.
"COLLATERAL AGENT FEES" shall mean all fees, costs and expenses of
the Collateral Agent of the types described in Sections 4.3, 4.4, 4.5
and 4.6.
"COLLATERAL ESTATE" shall have the meaning assigned in Section
2.1(c).
"DISTRIBUTION DATE" shall mean each date fixed by the Collateral
Agent in its sole discretion for a distribution to the Secured Parties
of funds held in the Collateral Account.
"EXCHANGE RATE" shall mean, at any date of determination thereof
with respect to any currency, the spot rate of exchange for the
conversion of such currency into Dollars determined by reference to such
rate publishing service as is customarily utilized by the Collateral
Agent for such purpose; PROVIDED that, to the extent that "Exchange
Rate" is used herein to refer to an actual exchange by the Collateral
Agent of one currency for another, "Exchange Rate" shall be deemed to
refer to the rate at which such exchange actually occurs so long as such
exchange is effected under customary market conditions. Any such
determination of the Exchange Rate shall be conclusive absent manifest
error.
"MORTGAGES" shall mean each of the mortgages and deeds of trust
made by any Credit Party in favor of, or for the benefit of, the
Collateral Agent for the benefit of the Secured Parties, substantially
in the form of Exhibit D to the L/C Agreement or Exhibit C to the ESD
Agreement (with such changes thereto as shall be advisable under the law
of the jurisdiction in which such mortgage or deed of trust is to be
recorded).
"OPINION OF COUNSEL" shall mean an opinion in writing signed by
legal counsel satisfactory to the Collateral Agent, who may be counsel
regularly retained by the Collateral Agent.
"PERMITTED INVESTMENTS" shall mean:
(i) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States
of America (or by any agency thereof to the extent such obligations are
backed by the full faith and credit of the United States of America), in
each case maturing within one year from the date of acquisition thereof;
(ii) investments in commercial paper maturing within 270 days from
the date of acquisition thereof and having, at such date of acquisition,
the highest credit rating obtainable from S&P or from ▇▇▇▇▇'▇;
(iii) investments in certificates of deposit, banker's acceptances
and time deposits maturing within 180 days from the date of acquisition
thereof issued or guaranteed by or placed with, and money market deposit
accounts issued or offered by, any domestic office of any commercial
bank organized under the laws of the United States of America or any
State thereof which has a combined capital and surplus and undivided
profits of not less than $500,000,000;
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(iv) fully collateralized repurchase agreements with a term of not
more than 30 days for securities described in clause (i) above and
entered into with a financial institution satisfying the criteria
described in clause (iii) above;
(v) in the case of any Foreign Subsidiary, (A) marketable direct
obligations issued by, or unconditionally guaranteed by, the sovereign
nation in which such Foreign Subsidiary is organized and is conducting
business or issued by any agency of such sovereign nation and backed by
the full faith and credit of such sovereign nation, in each case
maturing within one year from the date of acquisition, so long as the
indebtedness of such sovereign nation is rated at least A by S&P or A2
by ▇▇▇▇▇'▇ or carries an equivalent rating from a comparable foreign
rating agency or (B) investments of the type and maturity described in
clauses (ii) through (iv) above of foreign obligors, which investments
or obligors have ratings described in such clauses or equivalent ratings
from comparable foreign rating agencies;
(vi) investments made in compliance with the "Lucent Technologies
Domestic Investment Guidelines", dated January 17, 2006 (as may be
amended to permit securities lending with lending agents rated at least
A by S&P or A2 by ▇▇▇▇▇'▇); and
(vii) investments approved by the Board of Directors of the
Borrower; PROVIDED that the portfolio of such investments described in
this clause (vii) together with investments described in clause (vi)
shall have a portfolio duration of not more than two years.
"PROCEEDS" shall mean all "proceeds" as such term is defined in
Section 9-102(a)(64) of the Uniform Commercial Code in effect in the
State of New York on the date hereof.
"RESTRICTED COLLATERAL OBLIGATIONS" shall mean, at any time, the
Restricted Secured Indebtedness at such time and the External Sharing
Debt that is not Borrowed Debt at such time.
"SECURITY DOCUMENTS" shall mean the collective reference to the
Guarantee and Collateral Agreement, the Mortgages, the Control
Agreements and all other security documents hereafter delivered to the
Collateral Agent or the Administrative Agent granting a Lien on any
property of any Person to secure the obligations and liabilities of any
Credit Party pursuant to the Credit Agreements, the External Sharing
Debt or any Guarantee in respect thereof. For the avoidance of doubt,
the foregoing shall exclude any security document entered into in
connection with any External Sharing Debt and that secures only the
External Sharing Debt Obligations in respect of such External Sharing
Debt.
"SHARING ACKNOWLEDGEMENT" shall mean each acknowledgement delivered
by the Borrower to the Collateral Agent with respect to each item of
External Sharing Debt, executed by the holder of such External Sharing
Debt and which sets forth a description of such External Sharing Debt,
including the maximum amount thereof, the relevant currency and the
contact information for the holder thereof.
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"UNRESTRICTED COLLATERAL" shall mean all Collateral other than the
Restricted Collateral.
(c) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Section
references are to this Agreement unless otherwise specified.
SECTION 2.
AUTHORITY OF COLLATERAL AGENT
2.1 GENERAL AUTHORITY OF THE COLLATERAL AGENT OVER THE
Collateral. (a) Each Grantor hereby irrevocably constitutes and appoints the
Collateral Agent and any officer or agent thereof, with full power of
substitution, as its true and lawful attorney-in-fact with full power and
authority in its or his own name, from time to time in the Collateral Agent's
discretion to take any and all appropriate action and to execute any and all
documents and instruments which may be necessary or desirable to carry out
the terms of this Agreement and the Security Documents and accomplish the
purposes hereof and thereof and, without limiting the generality of the
foregoing, each Grantor hereby acknowledges that the Collateral Agent shall
have all powers and remedies set forth in the Security Documents.
(b) By acceptance of the benefits of this Agreement and the
Security Documents, each Secured Party shall be deemed irrevocably (i) to
consent to the appointment of the Collateral Agent as its agent hereunder and
under the Security Documents, (ii) to confirm that the Collateral Agent shall
have the authority to act as the exclusive agent of such Secured Party for
enforcement of any provisions of this Agreement and the Security Documents
against any Grantor or the exercise of remedies hereunder or thereunder,
(iii) to agree that such Secured Party shall not take any action to enforce
any provisions of this Agreement or any Security Document against any Grantor
or to exercise any remedy hereunder or thereunder and (iv) to agree to be
bound by the terms of this Agreement and the Security Documents.
(c) The Collateral Agent hereby agrees that it holds and will hold
all of its right, title and interest in, to and under the Security Documents
and the Collateral granted to the Collateral Agent thereunder whether now
existing or hereafter arising (all such right, title and interest being
hereinafter referred to as the "COLLATERAL ESTATE") under and subject to the
conditions set forth in this Agreement; and the Collateral Agent further
agrees that it will hold such Collateral Estate for the benefit of the
Secured Parties, for the enforcement of the payment of all Obligations and as
security for the performance of and compliance with the covenants and
conditions of this Agreement and each of the Security Documents, subject to
the limits set forth in the Security Documents. It is understood and agreed
that the Cash Collateral Agreement (as defined in the L/C Agreement) and the
cash collateral agreement referred to in Section 2.06 of the ESD Agreement
shall not constitute Security Documents and the cash collateral accounts
established pursuant thereto and the deposits made therein and investments
made from time to time with such deposits and earnings thereon shall not
constitute Collateral. It is also understood and agreed that Collateral
shall not include Excluded Foreign Collateral.
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2.2 RIGHT TO INITIATE JUDICIAL PROCEEDINGS. The Collateral Agent,
subject to the provisions of Section 5, at any time after the occurrence and
during the continuance of an Event of Default, (a) shall have the right and
power to institute and maintain such suits and proceedings as it may deem
appropriate to protect and enforce the rights vested in it by this Agreement
and each Security Document and (b) may, either after entry, or without entry,
proceed by suit or suits at law or in equity to enforce such rights and to
foreclose upon the Collateral and to sell all or, from time to time, any of
the Collateral under the judgment or decree of a court of competent
jurisdiction.
2.3 RIGHT TO APPOINT A RECEIVER. Upon the filing of a ▇▇▇▇ in
equity or other commencement of judicial proceedings to enforce the rights of
the Collateral Agent under this Agreement or any Security Document, which
filing may be made only after the occurrence and during the continuance of an
Event of Default, the Collateral Agent shall, to the extent permitted by law,
with notice to the Borrower but without notice to any party claiming through
the Grantors, without regard to the solvency or insolvency at the time of any
Person then liable for the payment of any of the Obligations, without regard
to the then current value of the Collateral Estate, and without requiring any
bond from any complainant in such proceedings, be entitled as a matter of
right to the appointment of a receiver or receivers of the Collateral Estate,
or any part thereof, and of the rents, issues, tolls, profits, royalties,
revenues and other income thereof, pending such proceedings, with such powers
as the court making such appointment shall confer, and to the entry of an
order directing that the rents, issues, tolls, profits, royalties, revenues
and other income of the property constituting the whole or any part of the
Collateral Estate be segregated, sequestered and impounded for the benefit of
the Collateral Agent and the Secured Parties, and each Grantor irrevocably
consents to the appointments of such receiver or receivers and to the entry
of such order; PROVIDED that, notwithstanding the appointment of any
receiver, the Collateral Agent shall be entitled to retain possession and
control of all cash, deposit and securities accounts and Permitted
Investments held by or deposited with it, or over which it otherwise has
control pursuant to this Agreement or any Security Document.
2.4 EXERCISE OF POWERS. All of the powers, remedies and rights of
the Collateral Agent as set forth in this Agreement may be exercised by the
Collateral Agent in respect of any Security Document as though set forth in
full therein and all of the powers, remedies and rights of the Collateral
Agent as set forth in any Security Document may be exercised from time to
time as herein and therein provided.
2.5 REMEDIES NOT EXCLUSIVE. (a) No remedy conferred upon or
reserved to the Collateral Agent herein or in the Security Documents is
intended to be exclusive of any other remedy or remedies, but every such
remedy shall be cumulative and shall be in addition to every other remedy
conferred herein or in any Security Document or now or hereafter existing at
law or in equity or by statute.
(b) No delay or omission by the Collateral Agent to exercise any
right, remedy or power hereunder or under any Security Document shall impair
any such right, remedy or power or shall be construed to be a waiver thereof,
and every right, power and remedy given by this Agreement or any Security
Document to the Collateral Agent may be exercised from time to time and as
often as may be deemed expedient by the Collateral Agent.
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(c) If the Collateral Agent shall have proceeded to enforce any
right, remedy or power under this Agreement or any Security Document and the
proceeding for the enforcement thereof shall have been discontinued or
abandoned for any reason or shall have been determined adversely to the
Collateral Agent, then the Grantors, the Collateral Agent and the other
Secured Parties shall, subject to any determination in such proceeding,
severally and respectively be restored to their former positions and rights
hereunder or thereunder with respect to the Collateral Estate and in all
other respects, and thereafter all rights, remedies and powers of the
Collateral Agent shall continue as though no such proceeding had been taken.
(d) All rights of action and of asserting claims upon or under
this Agreement and the Security Documents may be enforced by the Collateral
Agent without the possession of any instrument evidencing any Obligation or
the production thereof at any trial or other proceeding relative thereto, and
any suit or proceeding instituted by the Collateral Agent shall be, subject
to Sections 5.4(c) and 5.9(b)(ii), brought in its name as Collateral Agent
and any recovery of judgment shall be held as part of the Collateral Estate.
2.6 WAIVER AND ESTOPPEL. (a) Each Grantor agrees, to the extent
it may lawfully do so, that it will not at any time in any manner whatsoever
claim, or take the benefit or advantage of, any appraisement, valuation,
stay, extension, moratorium, turnover or redemption law, or any law
permitting it to direct the order in which the Collateral shall be sold, now
or at any time hereafter in force, which may delay, prevent or otherwise
affect the performance or enforcement of this Agreement or any Security
Document and hereby waives all benefit or advantage of all such laws and
covenants that it will not hinder, delay or impede the execution of any power
granted to the Collateral Agent in this Agreement or any Security Document
but will suffer and permit the execution of every such power as though no
such law were in force; PROVIDED that nothing contained in this Section
2.6(a) shall be construed as a waiver of any rights of the Grantors under any
applicable federal bankruptcy law or state insolvency law.
(b) Each Grantor, to the extent it may lawfully do so, on behalf
of itself and all who may claim through or under it, including without
limitation any and all subsequent creditors, vendees, assignees and lienors,
waives and releases all rights to demand or to have any marshalling of the
Collateral upon any sale, whether made under any power of sale granted herein
or in any Security Document or pursuant to judicial proceedings or upon any
foreclosure or any enforcement of this Agreement or any Security Document and
consents and agrees that all the Collateral may at any such sale be offered
and sold as an entirety.
(c) Each Grantor waives, to the extent permitted by applicable
law, presentment, demand, protest and any notice of any kind (except notices
explicitly required hereunder or under any Security Document) in connection
with this Agreement and the Security Documents and any action taken by the
Collateral Agent with respect to the Collateral.
2.7 LIMITATION ON COLLATERAL AGENT'S DUTY IN RESPECT OF
Collateral. Beyond its duties as to the custody thereof expressly provided
herein or in any Security Document and to account to the Secured Parties and
the Grantors for moneys and other property received by it hereunder or under
any Security Document, the Collateral Agent shall not have any duty to the
Grantors or to the Secured Parties as to any Collateral in its possession or
control or in the
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possession or control of any of its agents or nominees, or any income thereon or
as to the preservation of rights against prior parties or any other rights
pertaining thereto.
2.8 LIMITATION BY LAW. All rights, remedies and powers provided
in this Agreement or any Security Document may be exercised only to the
extent that the exercise thereof does not violate any applicable provision of
law, and all the provisions hereof are intended to be subject to all
applicable mandatory provisions of law which may be controlling and to be
limited to the extent necessary so that they will not render this Agreement
invalid, unenforceable in whole or in part or not entitled to be recorded,
registered or filed under the provisions of any applicable law.
2.9 RIGHTS OF SECURED PARTIES IN RESPECT OF OBLIGATIONS.
Notwithstanding any other provision of this Agreement or any Security
Document but subject to Section 3.07 of the L/C Agreement and Section 2.03 of
the ESD Agreement, as applicable, the right of each Secured Party to receive
payment of the Obligations held by such Secured Party when due (whether at
the stated maturity thereof, by acceleration or otherwise), as expressed in
the instruments evidencing or agreements governing such Obligations or to
institute suit for the enforcement of such payment on or after such due date,
shall not be impaired or affected without the consent of such Secured Party
given in the manner prescribed by the instruments evidencing or agreements
governing such Obligations.
SECTION 3.
COLLATERAL ACCOUNT; DISTRIBUTIONS
3.1 THE COLLATERAL ACCOUNT. At such time as the Collateral Agent
deems appropriate, there shall be established and, at all times thereafter
until this Agreement shall have terminated, there shall be maintained with
the Collateral Agent an account which shall be entitled the "Lucent
Collateral Account" (the "COLLATERAL ACCOUNT"). All moneys which are
received by the Collateral Agent or any agent or nominee of the Collateral
Agent in respect of the Collateral, whether in connection with the exercise
of the remedies provided in this Agreement or any Security Document, shall be
deposited in the Collateral Account and held by the Collateral Agent as part
of the Collateral Estate and applied in accordance with the terms of this
Agreement. The Collateral Agent shall maintain such sub-accounts and records
with respect to the Collateral Account as will permit the segregation and
allocation of proceeds of Collateral in accordance with Section 3.4. In the
event that, on any day, an amount is received by the Collateral Agent or any
agent or nominee of the Collateral Agent in respect of Collateral and such
amount is denominated in any currency other than Dollars, the Collateral
Agent shall convert such amount into an amount of Dollars based upon the
relevant Exchange Rate in effect for such day.
3.2 CONTROL OF COLLATERAL ACCOUNT. All right, title and interest
in and to the Collateral Account shall vest in the Collateral Agent, and
funds on deposit in the Collateral Account shall constitute part of the
Collateral Estate. The Collateral Account shall be subject to the exclusive
dominion and control (within the meaning of Article 8 or Article 9, as the
case may be, of the Uniform Commercial Code) of the Collateral Agent.
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3.3 INVESTMENT OF FUNDS DEPOSITED IN COLLATERAL ACCOUNT. The
Collateral Agent may, but is under no obligation to, invest and reinvest
moneys on deposit in the Collateral Account at any time in Permitted
Investments. All such investments and the interest and income received
thereon and the net proceeds realized on the sale or redemption thereof shall
be held in the Collateral Account as part of the Collateral Estate. The
Collateral Agent shall not be responsible for any diminution in funds
resulting from such investments or any liquidation prior to maturity.
3.4 APPLICATION OF MONEYS. (a) The Collateral Agent shall have
the right at any time to apply moneys held by it in the Collateral Account to
the payment of due and unpaid Collateral Agent Fees.
(b) All remaining moneys held by the Collateral Agent in the
Collateral Account received by the Collateral Agent with respect to the
Restricted Collateral shall, to the extent available for distribution (it
being understood that the Collateral Agent may liquidate investments prior to
maturity in order to make a distribution pursuant to this Section 3.4), be
distributed (subject to the provisions of Section 3.5) by the Collateral
Agent on each Distribution Date in the following order of priority (with such
distributions being made by the Collateral Agent as provided in Section
3.4(e), and the applicable Administrative Agent shall be responsible for
insuring that amounts distributed to it are distributed to its Banks in the
order of priority set forth below):
FIRST: to the Collateral Agent for any unpaid Collateral Agent
Fees and then to any Secured Party which has theretofore advanced or
paid any Collateral Agent Fees constituting administrative expenses
allowable under Section 503(b) of the Bankruptcy Code, an amount equal
to the amount thereof so advanced or paid by such Secured Party and for
which such Secured Party has not been reimbursed prior to such
Distribution Date, and, if such moneys shall be insufficient to pay such
amounts in full, then ratably (without priority of any one over any
other) to such Secured Parties in proportion to the amounts of such
Collateral Agent Fees advanced by the respective Secured Parties and
remaining unpaid on such Distribution Date;
SECOND: to any Secured Party which has theretofore advanced or
paid any Collateral Agent Fees other than such administrative expenses,
an amount equal to the amount thereof so advanced or paid by such
Secured Party and for which such Secured Party has not been reimbursed
prior to such Distribution Date, and, if such moneys shall be
insufficient to pay such amounts in full, then ratably (without priority
of any one over any other) to such Secured Parties in proportion to the
amounts of such Collateral Agent Fees advanced by the respective Secured
Parties and remaining unpaid on such Distribution Date;
THIRD: to the Secured Parties holding Restricted Collateral
Obligations, amounts equal to all Restricted Collateral Obligations then
owing to them (other than amounts described in clause FOURTH below),
whether or not then due and payable, and, if such moneys shall be
insufficient to pay such amounts in full, then ratably (without priority
of any one over any other) to such Secured Parties in proportion to the
unpaid amounts thereof on such Distribution Date;
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FOURTH: to the Secured Parties holding Restricted Collateral
Obligations, amounts equal to all costs and expenses of such Secured
Parties and their representatives which constitute Restricted Collateral
Obligations and are due and payable under the relevant instruments
evidencing or agreements governing the Restricted Collateral Obligations
as of such Distribution Date, and, if such moneys shall be insufficient
to pay such amounts in full, then ratably to such Secured Parties in
proportion to the unpaid amounts thereof on such Distribution Date; and
FIFTH: any surplus then remaining shall be paid to the Grantors or
their successors or assigns or to whomsoever may be lawfully entitled to
receive the same or as a court of competent jurisdiction may direct.
(c) All remaining moneys held by the Collateral Agent in the
Collateral Account received by the Collateral Agent with respect to the
Unrestricted Collateral shall, to the extent available for distribution (it
being understood that the Collateral Agent may liquidate investments prior to
maturity in order to make a distribution pursuant to this Section 3.4), be
distributed (subject to the provisions of Section 3.5) by the Collateral
Agent on each Distribution Date in the following order of priority (with such
distributions being made by the Collateral Agent as provided in Section
3.4(e), and the applicable Administrative Agent shall be responsible for
insuring that amounts distributed to it are distributed to its Banks in the
order of priority set forth below):
FIRST: to the Collateral Agent for any unpaid Collateral Agent
Fees and then to any Secured Party which has theretofore advanced or
paid any Collateral Agent Fees constituting administrative expenses
allowable under Section 503(b) of the Bankruptcy Code, an amount equal
to the amount thereof so advanced or paid by such Secured Party and for
which such Secured Party has not been reimbursed prior to such
Distribution Date, and, if such moneys shall be insufficient to pay such
amounts in full, then ratably (without priority of any one over any
other) to such Secured Parties in proportion to the amounts of such
Collateral Agent Fees advanced by the respective Secured Parties and
remaining unpaid on such Distribution Date;
SECOND: to any Secured Party which has theretofore advanced or
paid any Collateral Agent Fees other than such administrative expenses,
an amount equal to the amount thereof so advanced or paid by such
Secured Party and for which such Secured Party has not been reimbursed
prior to such Distribution Date, and, if such moneys shall be
insufficient to pay such amounts in full, then ratably (without priority
of any one over any other) to such Secured Parties in proportion to the
amounts of such Collateral Agent Fees advanced by the respective Secured
Parties and remaining unpaid on such Distribution Date;
THIRD: to the Secured Parties, amounts equal to all Obligations
then owing to them (other than amounts described in clause FOURTH
below), whether or not then due and payable, and, if such moneys shall
be insufficient to pay such amounts in full, then ratably (without
priority of any one over any other) to the Secured Parties in proportion
to the unpaid amounts thereof on such Distribution Date;
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FOURTH: to the Secured Parties, amounts equal to all costs and
expenses of the Secured Parties and their representatives which
constitute Obligations and are due and payable under the relevant
instruments evidencing or agreements governing such Obligations as of
such Distribution Date, and, if such moneys shall be insufficient to pay
such amounts in full, then ratably to the Secured Parties in proportion
to the unpaid amounts thereof on such Distribution Date; and
FIFTH: any surplus then remaining shall be paid to the Grantors or
their successors or assigns or to whomsoever may be lawfully entitled to
receive the same or as a court of competent jurisdiction may direct.
(d) The term "unpaid" as used in clause THIRD of each of Sections
3.4(b) and 3.4(c) refers:
(i) in the absence of a bankruptcy proceeding with respect to
the relevant Grantor(s), to all amounts of Borrower Obligations or
External Sharing Debt Obligations, as the case may be, outstanding as of
a Distribution Date, and
(ii) during the pendency of a bankruptcy proceeding with
respect to the relevant Grantor(s), to all amounts allowed by the
bankruptcy court in respect of Borrower Obligations or External Sharing
Debt Obligations, as the case may be, as a basis for distribution
(including the face amount of any outstanding letter of credit and the
estimated amounts, if any, allowed in respect of any other contingent
claims),
to the extent that prior distributions have not been made in respect thereof.
(e) The Collateral Agent shall make all payments and distributions
under this Section 3.4: (i) on account of Borrower Obligations under the L/C
Agreement to the Administrative Agent for the L/C Agreement, pursuant to
directions of such Administrative Agent, for re-distribution in accordance
with the provisions of the L/C Agreement; (ii) on account of Borrower
Obligations under the ESD Agreement to the ESD Bank entitled to such payments
and distributions in accordance with the provisions of the ESD Agreement; and
(iii) on account of any other External Sharing Debt Obligations to the
relevant holder of such External Sharing Debt (as set forth in the Sharing
Acknowledgement previously delivered with respect to such External Sharing
Debt or, if more recently provided, the list delivered by the Borrower to the
Collateral Agent pursuant to Section 4.2), pursuant to directions of such
holder.
3.5 COLLATERAL AGENT'S CALCULATIONS. In making the determinations
and allocations required by Section 3.4, the Collateral Agent may
conclusively rely upon information supplied by the applicable holders of
External Sharing Debt as to the amounts of unpaid principal and interest and
other amounts outstanding with respect to the External Sharing Debt
Obligations held by such holders and information supplied by the
Administrative Agent as to the amounts of unpaid principal and interest and
other amounts outstanding with respect to the Borrower Obligations, and the
Collateral Agent shall have no liability to any of the Secured Parties for
actions taken in reliance on such information, PROVIDED that nothing in this
sentence shall prevent any Grantor from contesting any amounts claimed by any
Secured Party in any information so supplied. In addition, for purposes of
making the allocations required by Section
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3.4 with respect to any amount that is denominated in any currency other than
Dollars, the Collateral Agent shall, on the applicable Distribution Date,
convert such amount into an amount of Dollars based upon the relevant Exchange
Rate as of a recent date specified by the Collateral Agent in its reasonable
discretion. All distributions made by the Collateral Agent pursuant to Section
3.4 shall be (subject to any decree of any court of competent jurisdiction)
final (absent manifest error), and the Collateral Agent shall have no duty to
inquire as to the application by the Administrative Agent or any holder of
External Sharing Debt of any amounts distributed to them.
3.6 PRO RATA SHARING. If, through the operation of any
bankruptcy, reorganization, insolvency or other laws or otherwise, the
Collateral Agent's security interest hereunder and under the Security
Documents is enforced with respect to some, but not all, of the Obligations
then outstanding, the Collateral Agent shall nonetheless apply the proceeds
of the Collateral for the benefit of the holders of all Obligations in the
proportions and subject to the priorities and allocations specified herein.
SECTION 4.
AGREEMENTS WITH COLLATERAL AGENT
4.1 [Intentionally Omitted]
4.2 INFORMATION AS TO ADMINISTRATIVE AGENT AND OTHER SECURED
PARTIES. The Borrower shall deliver to the Collateral Agent, on the date
hereof (if not previously delivered), on each anniversary of the date hereof,
and from time to time upon request of the Collateral Agent, a list setting
forth as of a date not more than 30 days prior to the date of such delivery,
the aggregate unpaid principal amount of Borrower Obligations outstanding (as
notified to the Borrower by the applicable Administrative Agent) and the name
and address of the applicable Administrative Agent, PROVIDED that the
Borrower shall not be required to deliver such information to the Collateral
Agent if, at the time such information is required to be delivered, JPMorgan
Chase Bank, N.A. is the Collateral Agent hereunder and is the Administrative
Agent under each of the Credit Agreements. The Borrower shall deliver to the
Collateral Agent, on the date hereof (if not previously delivered) and not
more than 30 days after the end of each fiscal quarter of the Borrower, a
list setting forth each item of External Sharing Debt outstanding on the last
Business Day of the most recently ended fiscal quarter of the Borrower,
including the aggregate unpaid principal amount of External Sharing Debt
Obligations outstanding and, with respect to each item of External Sharing
Debt, the name and address of the holder thereof. In addition, the Borrower
will promptly notify the Collateral Agent of each change in the identity of
any Administrative Agent or any holder of External Sharing Debt.
4.3 COMPENSATION AND EXPENSES. The Borrower agrees to pay to the
Collateral Agent, from time to time upon demand, (a) the fees separately
agreed upon for its services hereunder and under the Security Documents and
for administering the Collateral Estate and (b) all of the costs and expenses
of the Collateral Agent (including, without limitation, the reasonable fees
and disbursements of its counsel, advisors and agents) (i) arising in
connection with the preparation, execution, delivery, modification, and
termination of this Agreement and each Security Document or the enforcement
of any of the provisions hereof or thereof, (ii) incurred or required to be
advanced in connection with the administration of the Collateral
12
Estate, the sale or other disposition of Collateral pursuant to any Security
Document and the preservation, protection or defense of the Collateral Agent's
rights under this Agreement and the Security Documents and in and to the
Collateral and the Collateral Estate or (iii) incurred by the Collateral Agent
in connection with the removal of the Collateral Agent pursuant to Section
5.6(a). Such fees, costs and expenses are intended to constitute expenses of
administration under any bankruptcy law relating to creditors rights generally.
The obligations of the Borrower under this Section 4.3 shall survive the
termination of the other provisions of this Agreement and the resignation or
removal of the Collateral Agent hereunder with respect to such fees, costs and
expenses incurred prior to such termination, resignation or removal.
4.4 STAMP AND OTHER SIMILAR TAXES. The Borrower agrees to
indemnify and hold harmless the Collateral Agent, the Administrative Agent
and each other Secured Party from any present or future claim for liability
for any stamp or any other similar tax, and any penalties or interest with
respect thereto, which may be assessed, levied or collected by any
jurisdiction in connection with this Agreement, any Security Document, the
Collateral Estate or any Collateral. The obligations of the Borrower under
this Section 4.4 shall survive the termination of the other provisions of
this Agreement and the resignation or removal of the Collateral Agent
hereunder.
4.5 FILING FEES, EXCISE TAXES, ETC. The Borrower agrees to pay or
to reimburse the Collateral Agent for any and all payments made by the
Collateral Agent in respect of all search, filing, recording and registration
fees, taxes, excise taxes and other similar imposts which may be payable or
determined to be payable in respect of the execution and delivery of this
Agreement and each Security Document. The obligations of the Borrower under
this Section 4.5 shall survive the termination of the other provisions of
this Agreement and the resignation or removal of the Collateral Agent
hereunder.
4.6 INDEMNIFICATION. The Borrower agrees to pay, indemnify, and
hold the Collateral Agent and the Administrative Agent (and their respective
directors, officers, agents and employees) harmless from and against any and
all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses (including, without limitation, the reasonable fees
and expenses of counsel, advisors and agents) or disbursements of any kind or
nature whatsoever with respect to the execution, delivery, enforcement,
performance and administration of this Agreement and the Security Documents,
unless arising from the gross negligence or willful misconduct of the
indemnified party, including for taxes in any jurisdiction in which the
Collateral Agent is subject to tax by reason of actions hereunder or under
the Security Documents, unless such taxes are imposed on or measured by
compensation paid to the Collateral Agent under Section 4.3. In any suit,
proceeding or action brought by the Collateral Agent under or with respect to
any contract, agreement, interest or obligation constituting part of the
Collateral for any sum owing thereunder, or to enforce any provisions
thereof, the Borrower will save, indemnify and keep the Collateral Agent, the
Administrative Agent and the other Secured Parties harmless from and against
all expense, loss or damage suffered by reason of any defense, setoff,
counterclaim, recoupment or reduction of liability whatsoever of the obligor
thereunder, arising out of a breach by any Grantor of any obligation
thereunder or arising out of any other agreement, indebtedness or liability
at any time owing to or in favor of such obligor or its successors from any
Grantor, and all such obligations of the Borrower shall be and remain
enforceable against and only against the Borrower and shall not be
enforceable against the Collateral Agent, the Administrative Agent or any
other Secured Party. The agreements in this
13
Section 4.6 shall survive the termination of the other provisions of this
Agreement and the resignation or removal of the Collateral Agent hereunder.
4.7 COLLATERAL AGENT'S LIEN. Notwithstanding anything to the
contrary in this Agreement, as security for the payment of Collateral Agent
Fees (a) the Collateral Agent is hereby granted a lien upon all Collateral
and (b) the Collateral Agent shall have the right to use and apply any of the
funds held by the Collateral Agent in the Collateral Account to cover such
Collateral Agent Fees.
4.8 FURTHER ASSURANCES. At any time and from time to time, upon
the written request of the Administrative Agent or the Collateral Agent, and
at the expense of the Borrower, each Grantor will promptly execute and
deliver any and all such further instruments and documents and take such
further action as is necessary or reasonably requested further to perfect, or
to protect the perfection of, the Liens and security interests granted under
the Security Documents (to the extent that perfection is required
thereunder), including, without limitation, the filing of any financing or
continuation statements under the Uniform Commercial Code in effect in any
jurisdiction. In addition to the foregoing, at any time and from time to
time, upon the written request of the Collateral Agent, and at the expense of
the Borrower, each Grantor will promptly execute and deliver any and all such
further instruments and documents and take such further action as the
Collateral Agent determines is necessary or reasonably requested to obtain
the full benefits of this Agreement and the Security Documents and of the
rights and powers herein and therein granted, including, without limitation,
the filing of any financing or continuation statements under the Uniform
Commercial Code in effect in any jurisdiction with respect to the Liens and
security interests granted by the Security Documents. Each Grantor also
hereby authorizes the Collateral Agent to sign and file any such financing or
continuation statements without the signature of such Grantor to the extent
permitted by applicable law. Notwithstanding the foregoing, in no event
shall the Collateral Agent have any obligation to monitor the perfection or
continuation of perfection or the sufficiency or validity of any security
interest in or related to the Collateral.
SECTION 5.
THE COLLATERAL AGENT
5.1 EXCULPATORY PROVISIONS. (a) The Collateral Agent shall not
be responsible in any manner whatsoever for the correctness of any recitals,
statements, representations or warranties herein, all of which are made
solely by the Grantors. The Collateral Agent makes no representations as to
the value or condition of the Collateral Estate or any part thereof, or as to
the title of the Grantors thereto or as to the security afforded by this
Agreement or any Security Document, or as to the validity, execution (except
its execution), enforceability, legality or sufficiency of this Agreement,
the Security Documents or the Obligations, and the Collateral Agent shall
incur no liability or responsibility in respect of any such matters.
(b) The Collateral Agent shall not be required to ascertain or
inquire as to the performance by the Grantors of any of the covenants or
agreements contained herein, in any Security Document, in any other Credit
Document or in any instrument evidencing or agreement governing External
Sharing Debt. Whenever it is necessary, or in the opinion of the Collateral
Agent advisable, for the Collateral Agent to ascertain the amount of
Obligations then held by
14
Secured Parties, the Collateral Agent may rely on a
certificate of the relevant holder of External Sharing Debt, in the case of
External Sharing Debt Obligations, or a certificate of the applicable
Administrative Agent, in the case of Borrower Obligations, and, if such
holder or such Administrative Agent shall not give such information to the
Collateral Agent, such Person shall not be entitled to receive distributions
hereunder (in which case distributions to those Persons who have supplied
such information to the Collateral Agent shall be calculated by the
Collateral Agent using, for those Persons who have not supplied such
information, the list then most recently delivered by the Borrower pursuant
to Section 4.2), and the amount so calculated to be distributed to the Person
who fails to give such information shall be held in trust for such Person
until such Person does supply such information to the Collateral Agent,
whereupon on the next Distribution Date the amount distributable to such
Person shall be recalculated using such information and distributed to it.
Nothing in the preceding sentence shall prevent any Grantor from contesting
any amounts claimed by any Secured Party in any certificate so supplied.
(c) The Collateral Agent shall be under no obligation or duty to
take any action under this Agreement or any Security Document if taking such
action (i) would subject the Collateral Agent to a tax in any jurisdiction
where it is not then subject to a tax or (ii) would require the Collateral
Agent to qualify to do business in any jurisdiction where it is not then so
qualified, unless the Collateral Agent receives security or indemnity
satisfactory to it against such tax (or equivalent liability), or any
liability resulting from such qualification, in each case as results from the
taking of such action under this Agreement or any Security Document.
(d) The Collateral Agent shall have the same rights with respect
to any Obligation held by it as any other Secured Party and may exercise such
rights as though it were not the Collateral Agent hereunder, and may accept
deposits from, lend money to, and generally engage in any kind of banking or
trust business with, any of the Grantors as if it were not the Collateral
Agent.
(e) The Collateral Agent shall not be liable for any action taken
or omitted to be taken in accordance with this Agreement or the Security
Documents except for its own gross negligence or willful misconduct.
5.2 DELEGATION OF DUTIES. The Collateral Agent may execute any of
the powers herein and perform any duty hereunder either directly or by or
through agents or attorneys-in-fact. The Collateral Agent shall be entitled
to advice of counsel concerning all matters pertaining to such powers and
duties. Absent any gross negligence or willful misconduct by the Collateral
Agent in the selection of any agents or attorneys-in-fact, the Collateral
Agent shall not be responsible for the negligence or misconduct of any agents
or attorneys-in-fact.
5.3 RELIANCE BY COLLATERAL AGENT. (a) Whenever in the
administration of this Agreement or the Security Documents the Collateral
Agent shall deem it necessary or desirable that a factual matter be proved or
established in connection with the Collateral Agent taking, suffering or
omitting any action hereunder or thereunder, such matter (unless other
evidence in respect thereof is herein specifically prescribed) may be deemed
to be conclusively proved or established by a certificate of a responsible
officer of the Borrower delivered to the Collateral Agent, and such
certificate shall be full warrant to the Collateral Agent for any action
taken, suffered or omitted in reliance thereon, subject, however, to the
provisions of Section 5.4.
15
(b) The Collateral Agent may consult with counsel, and any Opinion
of Counsel shall be full and complete authorization and protection in respect
of any action taken or suffered by it hereunder or under any Security
Document in accordance therewith. The Collateral Agent shall have the right
at any time to seek instructions concerning the administration of this
Agreement and the Security Documents from any court of competent jurisdiction.
(c) The Collateral Agent may rely, and shall be fully protected in
acting, upon any resolution, statement, certificate, instrument, opinion,
report, notice, request, consent, order, bond or other paper or document
which it has no reason to believe to be other than genuine and to have been
signed or presented by the proper party or parties or, in the case of cables,
telecopies and telexes, to have been sent by the proper party or parties. In
the absence of its own gross negligence or willful misconduct, the Collateral
Agent may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any certificates or
opinions furnished to the Collateral Agent and conforming to the requirements
of this Agreement.
(d) The Collateral Agent shall not be under any obligation to
exercise any of the rights or powers vested in the Collateral Agent by this
Agreement and the Security Documents unless the Collateral Agent shall have
been provided adequate security and indemnity against the costs, expenses and
liabilities which may be incurred by the Collateral Agent, including such
reasonable advances as may be requested by the Collateral Agent.
(e) Any Opinion of Counsel may be based, insofar as it relates to
factual matters, upon a certificate of a responsible officer of the Borrower
or representations made by a responsible officer of the Borrower in a writing
filed with the Collateral Agent.
5.4 LIMITATIONS ON DUTIES OF COLLATERAL AGENT. (a) The
Collateral Agent shall be obligated to perform such duties and only such
duties as are specifically set forth in this Agreement and the Security
Documents, and no implied covenants or obligations shall be read into this
Agreement or any Security Document against the Collateral Agent. By
acceptance of the benefits under this Agreement and the Security Documents,
the holders of External Sharing Debt shall be deemed to have agreed that they
shall not be entitled to, and shall not, (i) direct the actions of the
Collateral Agent hereunder or under any Security Document (except as provided
in the last sentence of Section 5.4(b)), (ii) except as set forth in Section
6.3, have the right to consent to any amendment, supplement, waiver or other
modification to this Agreement or any Security Document or to any release of
Collateral or Guarantees, (iii) take any action, or commence any legal
proceeding seeking, to require, compel or cause the Collateral Agent to
enforce any of the provisions of this Agreement or any Security Document
against any Grantor or to exercise any remedy hereunder or thereunder, (iv)
take any action, or commence any legal proceeding seeking, to prevent or
enjoin the Collateral Agent from taking any action (including, without
limitation, the enforcement of any provisions of this Agreement or any
Security Document against any Grantor, the exercise of any remedy hereunder
or thereunder, the release of any Security Document, the release of any
Collateral or Guarantees, the consent to any amendment or modification of
this Agreement or any Security Document or the grant of any waiver hereunder
or thereunder), or refraining from taking any such action, in accordance with
this Agreement or any Security Document, as the case may be, or (v) otherwise
take any action,
16
or commence any legal proceeding seeking, to delay, hinder or otherwise impair
the Collateral Agent in taking any such action in accordance with this Agreement
or any Security Document. By acceptance of the benefits under this Agreement and
the Security Documents, the holders of External Sharing Debt, as Secured
Parties, will be deemed to have acknowledged and agreed that the provisions of
the preceding sentence are intended to induce the Banks and the Grantors to
permit such Persons to be Secured Parties under this Agreement and under the
Security Documents and are being relied upon by the Banks and the Grantors as
consideration therefor.
(b) Except as herein otherwise expressly provided, the Collateral
Agent shall not be under any obligation to take any action which is
discretionary with the Collateral Agent under the provisions hereof or of any
Security Document. The Collateral Agent shall make available for inspection
and copying by the Administrative Agent each certificate or other paper
furnished to the Collateral Agent by any of the Grantors under or in respect
of this Agreement or any of the Collateral. The Collateral Agent shall in
all cases be fully protected in acting or refraining from acting, and (except
to the extent that the same would, in the Collateral Agent's reasonable
opinion, involve a risk of its violating any rule or regulation or expose it
to any liability) shall act or refrain from acting, in accordance with
written instructions signed by the Administrative Agent and any such
instruction and any action or inaction pursuant thereto shall be binding on
all the Secured Parties.
(c) No provision of this Agreement or of any Security Document
shall be deemed to impose any duty or obligation on the Collateral Agent to
perform any act or acts or exercise any right, power, duty or obligation
conferred or imposed on it, in any jurisdiction in which it shall be illegal,
or in which the Collateral Agent shall be unqualified or incompetent, to
perform any such act or acts or to exercise any such right, power, duty or
obligation or if such performance or exercise would constitute doing business
by the Collateral Agent in such jurisdiction or impose a tax on the
Collateral Agent by reason thereof or to risk its own funds or otherwise
incur any financial liability in the performance of its duties hereunder.
5.5 MONEYS TO BE HELD IN TRUST. All moneys received by the
Collateral Agent under or pursuant to any provision of this Agreement or any
Security Document (except Collateral Agent Fees) shall be held in trust for
the purposes for which they were paid or are held.
5.6 RESIGNATION AND REMOVAL OF THE COLLATERAL AGENT. (a) The
Collateral Agent may at any time, by giving written notice to the Borrower
and the Administrative Agent, resign and be discharged of the
responsibilities hereby created, such resignation to become effective upon
(i) the appointment of a successor Collateral Agent, (ii) the acceptance of
such appointment by such successor Collateral Agent and (iii) the approval of
such successor Collateral Agent evidenced by one or more instruments signed
by the Administrative Agent and the Borrower (which approval, in the case of
the Borrower, shall not be unreasonably withheld). If no successor
Collateral Agent shall be appointed and shall have accepted such appointment
within 90 days after the Collateral Agent gives the aforesaid notice of
resignation, the Collateral Agent, the Borrower, the Administrative Agent or
any Bank may apply to any court of competent jurisdiction to appoint a
successor Collateral Agent to act until such time, if any, as a successor
Collateral Agent shall have been appointed as provided in this Section 5.6.
Any successor so appointed by such court shall immediately and without
further act be superseded by
17
any successor Collateral Agent appointed by the Administrative Agent as provided
in Section 5.6(b). The Administrative Agent may, at any time upon giving 30
days' prior written notice thereof to the Collateral Agent, remove the
Collateral Agent and appoint a successor Collateral Agent reasonably acceptable
to the Borrower, such removal to be effective upon the acceptance of such
appointment by the successor. The Collateral Agent shall be entitled to
Collateral Agent Fees to the extent incurred or arising, or relating to events
occurring, before such resignation or removal.
(b) If at any time the Collateral Agent shall resign or be removed
or otherwise become incapable of acting, or if at any time a vacancy shall
occur in the office of the Collateral Agent for any other cause, a successor
Collateral Agent may be appointed by the Administrative Agent with the
consent of the Borrower, which consent shall not be unreasonably withheld.
The powers, duties, authority and title of the predecessor Collateral Agent
shall be terminated and cancelled without procuring the resignation of such
predecessor and without any other formality (except as may be required by
applicable law) than appointment and designation of a successor in writing
duly acknowledged and delivered to the predecessor and the Borrower. Such
appointment and designation shall be full evidence of the right and authority
to make the same and of all the facts therein recited, and this Agreement and
the Security Documents shall vest in such successor, without any further act,
deed or conveyance, all the estates, properties, rights, powers, duties,
authority and title of its predecessor; but such predecessor shall,
nevertheless, on the written request of the Administrative Agent, the
Borrower, or the successor, execute and deliver an instrument transferring to
such successor all the estates, properties, rights, powers, duties, authority
and title of such predecessor hereunder and under the Security Documents and
shall deliver all Collateral held by it or its agents to such successor.
Should any deed, conveyance or other instrument in writing from any Grantor
be required by any successor Collateral Agent for more fully and certainly
vesting in such successor the estates, properties, rights, powers, duties,
authority and title vested or intended to be vested in the predecessor
Collateral Agent, any and all such deeds, conveyances and other instruments
in writing shall, on request of such successor, be executed, acknowledged and
delivered by such Grantor. If such Grantor shall not have executed and
delivered any such deed, conveyance or other instrument within 10 days after
it receives a written request from the successor Collateral Agent to do so,
or if an Event of Default shall have occurred and be continuing, the
predecessor Collateral Agent may execute the same on behalf of such Grantor.
Such Grantor hereby appoints any predecessor Collateral Agent as its agent
and attorney to act for it as provided in the next preceding sentence.
5.7 STATUS OF SUCCESSOR COLLATERAL AGENT. Every successor
Collateral Agent appointed pursuant to Section 5.6 shall be a bank or trust
company in good standing and having power to act as Collateral Agent
hereunder, incorporated under the laws of the United States of America or any
State thereof or the District of Columbia and having its principal office
within the 48 contiguous States and shall also have capital, surplus and
undivided profits of not less than $500,000,000, if there be such an
institution with such capital, surplus and undivided profits willing,
qualified and able to accept the powers and duties hereunder upon reasonable
or customary terms.
5.8 MERGER OF THE COLLATERAL AGENT. Any corporation into which
the Collateral Agent may be merged, or with which it may be consolidated, or
any corporation resulting from any merger or consolidation to which the
Collateral Agent shall be a party, shall be the Collateral
18
Agent under this Agreement and the Security Documents without the execution or
filing of any paper or any further act on the part of the parties hereto.
5.9 CO-COLLATERAL AGENT; SEPARATE COLLATERAL AGENT. (a) If at
any time or times it shall be necessary or prudent in order to conform to any
law of any jurisdiction in which any of the Collateral shall be located, or
to avoid any violation of law or imposition on the Collateral Agent of taxes
by such jurisdiction not otherwise imposed on the Collateral Agent, or the
Collateral Agent shall be advised by counsel, satisfactory to it, that it is
necessary or prudent in the interest of the Secured Parties, or the
Collateral Agent shall deem it desirable for its own protection in the
performance of its duties hereunder or under any Security Document, the
Collateral Agent and each of the Grantors shall execute and deliver all
instruments and agreements necessary or proper to constitute another bank or
trust company, or one or more Persons approved by the Collateral Agent and
the Grantors, either to act as co-collateral agent or co-collateral agents of
all or any of the Collateral under this Agreement or under any of the
Security Documents, jointly with the Collateral Agent originally named herein
or therein or any successor Collateral Agent, or to act as separate
collateral agent or collateral agents of any of the Collateral. If any of
the Grantors shall not have joined in the execution of such instruments and
agreements within 10 days after it receives a written request from the
Collateral Agent to do so, or if an Event of Default shall have occurred and
be continuing, the Collateral Agent may act under the foregoing provisions of
this Section 5.9(a) without the concurrence of such Grantors and execute and
deliver such instruments and agreements on behalf of such Grantors. Each of
the Grantors hereby appoints the Collateral Agent as its agent and attorney
to act for it under the foregoing provisions of this Section 5.9(a) in either
of such contingencies.
(b) Every separate collateral agent and every co-collateral agent,
other than any successor Collateral Agent appointed pursuant to Section 5.6,
shall, to the extent permitted by law, be appointed and act and be such,
subject to the following provisions and conditions:
(i) all rights, powers, duties and obligations conferred upon
the Collateral Agent in respect of the custody, control and management
of moneys, papers or securities shall be exercised solely by the
Collateral Agent or any agent appointed by the Collateral Agent;
(ii) all rights, powers, duties and obligations conferred or
imposed upon the Collateral Agent hereunder and under the relevant
Security Documents shall be conferred or imposed and exercised or
performed by the Collateral Agent and such separate collateral agent or
separate collateral agents or co-collateral agent or co-collateral
agents, jointly, as shall be provided in the instrument appointing such
separate collateral agent or separate collateral agents or co-collateral
agent or co-collateral agents, except to the extent that under any law
of any jurisdiction in which any particular act or acts are to be
performed the Collateral Agent shall be incompetent or unqualified to
perform such act or acts, or unless the performance of such act or acts
would result in the imposition of any tax on the Collateral Agent which
would not be imposed absent such joint act or acts, in which event such
rights, powers, duties and obligations shall be exercised and performed
by such separate collateral agent or separate collateral agents or
co-collateral agent or co-collateral agents;
19
(iii) no power given hereby or by the relevant Security
Documents to, or which is provided herein or therein may be exercised
by, any such co-collateral agent or co-collateral agents or separate
collateral agent or separate collateral agents shall be exercised
hereunder or thereunder by such co-collateral agent or co-collateral
agents or separate collateral agent or separate collateral agents except
jointly with, or with the consent in writing of, the Collateral Agent,
anything contained herein to the contrary notwithstanding;
(iv) no collateral agent hereunder shall be personally liable
by reason of any act or omission of any other collateral agent
hereunder; and
(v) the Borrower and the Collateral Agent, at any time by an
instrument in writing executed by them jointly, may accept the
resignation of or remove any such separate collateral agent or
co-collateral agent and, in that case by an instrument in writing
executed by them jointly, may appoint a successor to such separate
collateral agent or co-collateral agent, as the case may be, anything
contained herein to the contrary notwithstanding. If the Borrower shall
not have joined in the execution of any such instrument within 10 days
after it receives a written request from the Collateral Agent to do so,
or if an Event of Default shall have occurred and be continuing, the
Collateral Agent shall have the power to accept the resignation of or
remove any such separate collateral agent or co-collateral agent and to
appoint a successor without the concurrence of the Borrower, the
Borrower hereby appointing the Collateral Agent its agent and attorney
to act for it in such connection in such contingency. If the Collateral
Agent shall have appointed a separate collateral agent or separate
collateral agents or co-collateral agent or co-collateral agents as
above provided, the Collateral Agent may at any time, by an instrument
in writing, accept the resignation of or remove any such separate
collateral agent or co-collateral agent and the successor to any such
separate collateral agent or co-collateral agent shall be appointed by
the Borrower and the Collateral Agent, or by the Collateral Agent alone
pursuant to this Section 5.9(b).
5.10 TREATMENT OF PAYEE OR INDORSEE BY COLLATERAL AGENT;
REPRESENTATIVES OF SECURED PARTIES. (a) The Collateral Agent may treat the
registered holder or, if none, the payee or indorsee of any promissory note
or debenture evidencing an Obligation as the absolute owner thereof for all
purposes and shall not be affected by any notice to the contrary, whether
such promissory note or debenture shall be past due or not.
(b) If requested by the Collateral Agent, any Person (other than
the Administrative Agent) which shall be designated as the duly authorized
representative of one or more Secured Parties to act as such in connection
with any matters pertaining to this Agreement or the Collateral shall present
to the Collateral Agent such documents, including, without limitation,
Opinions of Counsel, as the Collateral Agent may reasonably require, in order
to demonstrate to the Collateral Agent the authority of such Person to act as
the representative of such Secured Parties (it being understood that the
holders of Borrower Obligations are represented hereunder by the
Administrative Agent). The authority of the Administrative Agent shall be
demonstrated by their inclusion as such in the lists from time to time
delivered pursuant to Section 4.2.
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SECTION 6.
MISCELLANEOUS
6.1 NOTICES. Unless otherwise specified herein, all notices,
requests, demands or other communications given to any of the Grantors, the
Collateral Agent, the Administrative Agent or any holder of External Sharing
Debt shall be given in writing or by facsimile transmission and shall be
deemed to have been duly given when personally delivered or when duly
deposited in the mails, registered or certified mail postage prepaid, or when
transmitted by facsimile transmission, addressed (i) if to any Grantor, to
such party at its address specified in the Guarantee and Collateral Agreement
or any other address which such party shall have specified as its address for
the purpose of communications hereunder, by notice given in accordance with
this Section 6.1 to the party sending such communication, (ii) if to the
Collateral Agent at its address at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇, Attention of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, (Facsimile No. 713-750-2878) or any
other address which such party shall have specified as its address for the
purpose of communications hereunder, by notice given in accordance with this
Section 6.1 to the party sending such communication, (iii) if to the
Administrative Agent, to it at its address specified from time to time in the
list delivered by the Borrower to the Collateral Agent pursuant to Section
4.2 or (iv) if to any holder of External Sharing Debt, to it at its address
specified in its Sharing Acknowledgement previously delivered or, if more
recently provided, to it at its address specified from time to time in the
list delivered by the Borrower to the Collateral Agent pursuant to Section
4.2; PROVIDED that any notice, request or demand to the Collateral Agent
shall not be effective until received by the Collateral Agent in writing or
by facsimile transmission at the office designated by it pursuant to this
Section 6.1.
6.2 NO WAIVERS. No failure on the part of the Collateral Agent,
any co-collateral agent, any separate collateral agent, the Administrative
Agent or any other Secured Party to exercise, no course of dealing with
respect to, and no delay in exercising, any right, power or privilege under
this Agreement or any Security Document shall operate as a waiver thereof nor
shall any single or partial exercise of any such right, power or privilege
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege.
6.3 AMENDMENTS, SUPPLEMENTS AND WAIVERS. None of the terms or
provisions of this Agreement may be waived, amended, supplemented or
otherwise modified except in accordance with Section 11.07 of the L/C
Agreement and Section 10.07 of the ESD Agreement; PROVIDED, HOWEVER, that no
such agreement shall amend the provisions of Section 3.4 to change the order
of priority of distributions, or subordinate any Secured Party, without the
consent of each Secured Party directly affected thereby. In addition, if the
Administrative Agent shall advise the Collateral Agent in writing that the
Required Lucent Banks (under and as defined in each of the Credit Agreements)
have agreed with the Borrower that additional indebtedness, liabilities or
obligations of the Borrower shall be secured by all or any portion of the
Collateral, the Collateral Agent shall enter into such supplemental
agreements satisfactory to the Collateral Agent with the Grantors as shall be
reasonably requested by the Administrative Agent to effect such agreement
(which supplemental agreement may be in the form of an amendment and
restatement of this Agreement). Any waiver, amendment, modification or
supplemental agreement entered into pursuant to this Section 6.3 shall be
binding upon the Grantors, the Administrative Agent, the other Secured
Parties and the Collateral Agent and their respective successors.
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6.4 HEADINGS. The table of contents and the headings of Sections
have been included herein and in the Security Documents for convenience only
and should not be considered in interpreting this Agreement or the Security
Documents.
6.5 SEVERABILITY. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall not invalidate the
remaining provisions hereof, and any such prohibition or unenforceability in
any jurisdiction shall not invalidate or render unenforceable such provision
in any other jurisdiction.
6.6 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
and inure to the benefit of each of the parties hereto and their respective
successors and assigns and shall inure to the benefit of each of the Secured
Parties and their respective successors and assigns, and nothing herein is
intended or shall be construed to give any other Person any right, remedy or
claim under, to or in respect of this Agreement or any Collateral.
6.7 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
6.8 COUNTERPARTS. This Agreement may be signed in any number of
counterparts with the same effect as if the signatures thereto and hereto
were upon the same instrument.
6.9 TERMINATION. (a) Upon receipt by the Collateral Agent from
the Administrative Agent of a written direction to cause the Liens created by
Section 4.7 and by the Security Documents to be released and discharged and
payment in full of all Collateral Agent Fees, the security interests created
by Section 4.7 and by the Security Documents shall terminate forthwith and
all right, title and interest of the Collateral Agent in and to the
Collateral shall revert to the Grantors, their successors and assigns.
(b) Upon the termination of the Collateral Agent's security
interest and the release of the Collateral in accordance with Section 6.9(a),
the Collateral Agent will promptly, at the Borrower's written request and
expense, (i) execute and deliver to the Borrower such documents as the
Borrower shall reasonably request to evidence the termination of such
security interest or the release of the Collateral and (ii) deliver or cause
to be delivered to the Grantors all property of the Grantors then held by the
Collateral Agent or any agent thereof.
(c) This Agreement shall terminate when the security interest
granted under the Security Documents has terminated and the Collateral has
been released; PROVIDED that the provisions of Sections 4.3, 4.4, 4.5 and 4.6
shall not be affected by any such termination.
(d) The Collateral Agent will, at any time, upon the written
instruction of the Administrative Agent, at the sole expense of the relevant
Grantor, execute and deliver to the relevant Grantor all releases or other
documents reasonably necessary or desirable for the release of the Liens
created by the Security Documents on the Collateral specified by the
Administrative Agent in such instruction. The Administrative Agent may give
such instructions at any time, whether or not at any such time any or all of
the Obligations are still outstanding.
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6.10 INSPECTION BY REGULATORY AGENCIES. The Collateral Agent shall
make available, and shall cause each custodian and agent acting on its behalf
in connection with this Agreement to make available, all Collateral in such
Person's possession at all times for inspection by any regulatory agency
having jurisdiction over a Grantor to the extent required by such regulatory
agency in its discretion.
6.11 AGREEMENT TO BE BOUND. Pursuant to Section 8.17 of the
Guarantee and Collateral Agreement, each Grantor that is a Subsidiary of the
Borrower has agreed to be bound by the terms of this Agreement and, without
limiting the generality of the foregoing, has expressly agreed that all
obligations and liabilities of a Grantor hereunder apply to such Grantor with
the same force and effect as if such Grantor were a signatory hereto.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed by their respective authorized officers as of the day and
year first written above.
LUCENT TECHNOLOGIES INC.
By: /S/ ▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President & Treasurer
JPMORGAN CHASE BANK, N.A.
as Collateral Agent
By: /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President