<DOCUMENT>
<TYPE>EX-1.1
<SEQUENCE>2
<FILENAME>a2046353zex-1_1.txt
<DESCRIPTION>EXHIBIT 1.1
<TEXT>
<PAGE>
Exhibit 1.1
AVAYA INC.
(a Delaware corporation)
[$___________]
Senior Debt
Dated April __, 2001
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TABLE OF CONTENTS
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PAGE
<S> <C>
SECTION 1. REPRESENTATIONS AND WARRANTIES................................................................3
(a) REPRESENTATIONS AND WARRANTIES BY THE COMPANY.....................................................3
(1) COMPLIANCE WITH REGISTRATION REQUIREMENTS..............................................3
(2) INCORPORATED DOCUMENTS.................................................................4
(3) FINANCIAL STATEMENTS...................................................................4
(4) NO MATERIAL ADVERSE CHANGE IN BUSINESS.................................................4
(5) GOOD STANDING OF THE COMPANY...........................................................5
(6) GOOD STANDING OF THE SUBSIDIARIES......................................................5
(7) AUTHORIZATION OF THIS UNDERWRITING AGREEMENT AND TERMS AGREEMENT.......................5
(8) AUTHORIZATION OF DEBT SECURITIES.......................................................5
(9) AUTHORIZATION OF THE INDENTURES........................................................5
(10) DESCRIPTIONS OF THE UNDERWRITTEN SECURITIES AND INDENTURES.............................6
(11) ABSENCE OF DEFAULTS AND CONFLICTS......................................................6
(12) ABSENCE OF PROCEEDINGS.................................................................6
(13) ABSENCE OF FURTHER REQUIREMENTS........................................................7
(14) INVESTMENT COMPANY ACT.................................................................7
(b) OFFICERS' CERTIFICATES............................................................................8
SECTION 2. SALE AND DELIVERY TO UNDERWRITERS; CLOSING....................................................8
(a) UNDERWRITTEN SECURITIES...........................................................................8
(b) OPTION UNDERWRITTEN SECURITIES....................................................................8
(c) PAYMENT...........................................................................................8
(d) DENOMINATIONS; REGISTRATION.......................................................................9
SECTION 3. COVENANTS OF THE COMPANY......................................................................9
(a) COMPLIANCE WITH SECURITIES REGULATIONS AND COMMISSION REQUESTS....................................9
(b) FILING OF AMENDMENTS.............................................................................10
(c) DELIVERY OF REGISTRATION STATEMENTS..............................................................10
(d) DELIVERY OF PROSPECTUSES.........................................................................10
(e) CONTINUED COMPLIANCE WITH SECURITIES LAWS........................................................10
(f) BLUE SKY QUALIFICATIONS..........................................................................11
(g) EARNINGS STATEMENT...............................................................................11
(h) USE OF PROCEEDS..................................................................................11
(i) LISTING..........................................................................................11
(j) RESTRICTION ON SALE OF SECURITIES................................................................11
(k) REPORTING REQUIREMENTS...........................................................................11
SECTION 4. PAYMENT OF EXPENSES..........................................................................12
(a) EXPENSES.........................................................................................12
(b) TERMINATION OF AGREEMENT.........................................................................12
SECTION 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS......................................................13
(a) EFFECTIVENESS OF REGISTRATION STATEMENT..........................................................13
(b) OPINION OF COUNSEL FOR COMPANY...................................................................13
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(c) OPINION OF COUNSEL FOR UNDERWRITERS..............................................................13
(d) OFFICERS' CERTIFICATE............................................................................14
(e) ACCOUNTANT'S COMFORT LETTER......................................................................14
(f) BRING-DOWN COMFORT LETTER........................................................................14
(g) RATINGS..........................................................................................14
(h) APPROVAL OF LISTING..............................................................................14
(i) NO OBJECTION.....................................................................................15
(j) LOCK-UP AGREEMENTS...............................................................................15
(k) OVER-ALLOTMENT OPTION............................................................................15
(l) ADDITIONAL DOCUMENTS.............................................................................16
(m) TERMINATION OF TERMS AGREEMENT...................................................................16
SECTION 6. INDEMNIFICATION..............................................................................16
(a) INDEMNIFICATION OF UNDERWRITERS..................................................................16
(b) INDEMNIFICATION OF COMPANY, DIRECTORS AND OFFICERS...............................................17
(c) ACTIONS AGAINST PARTIES; NOTIFICATION............................................................17
SECTION 7. CONTRIBUTION.................................................................................18
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY...............................19
SECTION 9. TERMINATION..................................................................................19
(a) UNDERWRITING AGREEMENT...........................................................................19
(b) TERMS AGREEMENT..................................................................................19
(c) LIABILITIES......................................................................................20
SECTION 10. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS...................................................20
SECTION 11. NOTICES......................................................................................21
SECTION 12. PARTIES......................................................................................21
SECTION 13. GOVERNING LAW AND TIME.......................................................................21
SECTION 14. EFFECT OF HEADINGS...........................................................................21
</TABLE>
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DRAFT 4/21/01
AVAYA INC.
(a Delaware corporation)
UNDERWRITING AGREEMENT
[ _____, 2001]
Ladies and Gentlemen:
Avaya Inc., a Delaware corporation (the "Company"), proposes to issue
and sell up to [$________] aggregate initial public offering price of its senior
debt securities (the "Debt Securities"), from time to time, in or pursuant to
one or more offerings on terms to be determined at the time of sale.
The Debt Securities will be issued in one or more series as
indebtedness (the "Debt Securities") under an indenture, dated as of - (the
"Indenture"), between the Company and The Bank of New York, as trustee (the
"Trustee"). Each series of Debt Securities may vary, as applicable, as to title,
aggregate principal amount, rank, interest rate or formula and timing of
payments thereof, stated maturity date, redemption and/or repayment provisions,
sinking fund requirements, conversion provisions (and terms of the related
Underlying Securities and any other variable terms established by or pursuant to
the applicable Indenture.
As used herein, "Securities" shall mean the Debt Securities initially
issuable by the Company.
Whenever the Company determines to make an underwritten offering of
Securities, the Company will enter into an agreement (each, a "Terms
Agreement") providing for the sale of such Securities to, and the purchase
and offering thereof by, those underwriters selected to participate in such
offering, (the "Underwriters", which term shall include any Underwriter
substituted pursuant to Section 10 hereof). The Terms Agreement relating to
the offering of Securities shall specify the number or aggregate principal
amount, as the case may be, of Securities to be initially issued (the
"Initial Underwritten Securities"), the name of each Underwriter
participating in such offering (subject to substitution as provided in
Section 10 hereof) and the name of any Underwriter(s) acting as lead manager
or co-manager in connection with such offering, the number or aggregate
principal amount, as the case may be, of Initial Underwritten Securities
which each such Underwriter severally agrees to purchase, whether such
offering is on a fixed or variable price basis and, if on a fixed price
basis, the initial offering price, the price at which the Initial
Underwritten Securities are to be purchased by the Underwriters, the form,
time, date and place of delivery and payment of the Initial Underwritten
Securities and any other material variable terms of the Initial Underwritten
Securities, as well as the material variable terms of any related Underlying
Securities. In addition, if applicable, such Terms Agreement shall specify
whether the Company has agreed to grant to the Underwriters an
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option to purchase additional Securities to cover over-allotments, if any,
and the number or aggregate principal amount, as the case may be, of
Securities subject to such option (the "Option Underwritten Securities"). As
used herein, the term "Underwritten Securities" shall include the Initial
Underwritten Securities and all or any portion of any Option Underwritten
Securities. The Terms Agreement, which shall be substantially in the form of
Exhibit A hereto, may take the form of an exchange of any standard form of
written telecommunication between the Company and those Underwriters who are
acting as representatives for the Underwriters (the "Representatives"). Each
offering of Underwritten Securities will be governed by this Underwriting
Agreement, as supplemented by the applicable Terms Agreement.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333--) and pre-effective
amendment[s] no[s]. - thereto for the registration of the Securities and the
Underlying Securities under the Securities Act of 1933, as amended (the "1933
Act"), and the offering thereof from time to time in accordance with Rule 415 of
the rules and regulations of the Commission under the 1933 Act (the "1933 Act
Regulations"). Such registration statement has been declared effective by the
Commission and each Indenture has been duly qualified under the Trust Indenture
Act of 1939, as amended (the "1939 Act"), and the Company has filed such
post-effective amendments thereto as may be required prior to the execution of
the applicable Terms Agreement and each such post-effective amendment has been
declared effective by the Commission. Such registration statement (as so
amended, if applicable), including the information, if any, deemed to be a part
thereof pursuant to Rule 430A(b) of the 1933 Act Regulations (the "Rule 430A
Information") or Rule 434(d) of the 1933 Act Regulations (the "Rule 434
Information"), is referred to herein as the "Registration Statement"; and the
final prospectus and the final prospectus supplement relating to the offering of
the Underwritten Securities, in the forms first furnished to the Underwriters by
the Company for use in connection with the offering of the Underwritten
Securities, are collectively referred to herein as the "Prospectus"; provided,
however, that all references to the "Registration Statement" and the
"Prospectus" shall also be deemed to include all documents incorporated therein
by reference pursuant to the Securities Exchange Act of 1934, as amended (the
"1934 Act"), prior to the execution of the applicable Terms Agreement; provided,
further, that if the Company files a registration statement with the Commission
pursuant to Rule 462(b) of the 1933 Act Regulations (the "Rule 462(b)
Registration Statement"), then all references to "Registration Statement" shall
also be deemed to include the Rule 462 (b) Registration Statement; and PROVIDED,
FURTHER, that if the Company elects to rely upon Rule 434 of the 1933 Act
Regulations, then all references to "Prospectus" shall also be deemed to include
the final or preliminary prospectus and the applicable term sheet or abbreviated
term sheet (the "Term Sheet"), as the case may be, in the forms first furnished
to the Underwriters by the Company in reliance upon Rule 434 of the 1933 Act
Regulations, and all references to the date of the Prospectus shall mean the
date of the Term Sheet. A "preliminary prospectus" shall be deemed to refer to
(i) any prospectus used before the Registration Statement became effective and
(ii) any prospectus that omitted, as applicable, the Rule 430A Information, the
Rule 434 Information or other information to be included upon pricing in a form
of prospectus filed with the Commission pursuant to Rule 424(b) of the 1933 Act
Regulations and was used after such effectiveness and prior to the initial
delivery of the Prospectus to the Underwriters by the Company. For purposes of
this Underwriting Agreement, all references to the Registration Statement,
Prospectus, Term Sheet or preliminary prospectus or
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to any amendment or supplement to any of the foregoing shall be deemed to
include any copy filed with the Commission pursuant to its Electronic Data
Gathering, Analysis and Retrieval system ("EDGAR").
All references in this Underwriting Agreement to financial
statements and schedules and other information which is "contained,"
"included" or "stated" (or other references of like import) in the
Registration Statement, Prospectus or preliminary prospectus shall be deemed
to mean and include all such financial statements and schedules and other
information which is incorporated by reference in the Registration Statement,
Prospectus or preliminary prospectus, as the case may be, prior to the
execution of the applicable Terms Agreement; and all references in this
Underwriting Agreement to amendments or supplements to the Registration
Statement, Prospectus or preliminary prospectus shall be deemed to include
the filing of any document under the 1934 Act which is incorporated by
reference in the Registration Statement, Prospectus or preliminary
prospectus, as the case may be, after the execution of the applicable Terms
Agreement.
SECTION 1. REPRESENTATIONS AND WARRANTIES.
(a) REPRESENTATIONS AND WARRANTIES BY THE COMPANY. The Company
represents and warrants to each Underwriter named in the applicable Terms
Agreement, as of the date thereof, as of the Closing Time (as defined below)
and, if applicable, as of each Date of Delivery (as defined below) (in each
case, a "Representation Date"), as follows:
(1) COMPLIANCE WITH REGISTRATION REQUIREMENTS. The Company
meets the requirements for use of Form S-3 under the 1933 Act. The
Registration Statement (including any Rule 462(b) Registration
Statement) has become effective under the 1933 Act and no stop order
suspending the effectiveness of the Registration Statement (or such
Rule 462(b) Registration Statement) has been issued under the 1933
Act and no proceedings for that purpose have been instituted or are
pending or, to the knowledge of the Company, are contemplated by the
Commission, and any request on the part of the Commission for
additional information has been complied with. In addition, each
Indenture has been duly qualified under the 1939 Act.
At the respective times the Registration Statement (including
any Rule 462(b) Registration Statement) and any post-effective
amendments thereto (including the filing of the Company's most recent
Annual Report on Form 10-K with the Commission (the "Annual Report on
Form 10-K")) became effective and at each Representation Date, the
Registration Statement (including any Rule 462(b) Registration
Statement) and any amendments thereto complied and will comply in all
material respects with the requirements of the 1933 Act and the 1933
Act Regulations and the 1939 Act and the rules and regulations of the
Commission under the 1939 Act (the "1939 Act Regulations"), as
applicable, and did not and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading. At
the date of the Prospectus, at the Closing Time and at each Date of
Delivery, if any, neither the Prospectus nor any amendments and
supplements thereto included or will include an untrue statement of a
material fact or omitted or will omit to state a material fact
necessary in order to make the statements
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therein, in the light of the circumstances under which they were
made, not misleading. If the Company elects to rely upon Rule 434 of
the 1933 Act Regulations, the Company will comply with the
requirements of Rule 434. Notwithstanding the foregoing, the
representations and warranties in this subsection shall not apply to
statements in or omissions from the Registration Statement or the
Prospectus made in reliance upon and in conformity with information
furnished to the Company in writing by or on behalf of any
Underwriter for use in the Registration Statement or the Prospectus.
Each preliminary prospectus and prospectus filed as part of
the Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the 1933 Act,
complied when so filed in all material respects with the 1933 Act
Regulations and each preliminary prospectus and the Prospectus
delivered to the Underwriters for use in connection with the offering
of Underwritten Securities will, at the time of such delivery, be
identical to any electronically transmitted copies thereof filed with
the Commission pursuant to EDGAR, except to the extent permitted by
Regulation S-T.
(2) INCORPORATED DOCUMENTS. The documents incorporated or
deemed to be incorporated by reference in the Registration Statement
and the Prospectus, at the time they were or hereafter are filed
with the Commission, complied and will comply in all material
respects with the requirements of the 1934 Act and the rules and
regulations of the Commission thereunder (the "1934 Act
Regulations") and, when read together with the other information in
the Prospectus, at the date of the Prospectus, at the Closing Time
and at each Date of Delivery, if any, did not and will not include
an untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
(3) FINANCIAL STATEMENTS. The financial statements of the
Company included in the Registration Statement and the Prospectus,
together with the related schedules and notes, as well as those
financial statements, schedules and notes of any other entity
included therein, present fairly in all material respects the
financial position of the Company and its consolidated subsidiaries
at the dates indicated and the statement of operations,
stockholders' equity and cash flows of the Company and its
consolidated subsidiaries for the periods specified. Such financial
statements have been prepared in conformity with generally accepted
accounting principles ("GAAP") applied on a consistent basis
throughout the periods involved. The supporting schedules, if any,
included in the Registration Statement and the Prospectus present
fairly in all material respects and in accordance with GAAP the
information required to be stated therein. The selected financial
data and the summary financial information included in the
Prospectus present fairly in all material respects the information
shown therein and have been compiled on a basis consistent with that
of the audited financial statements included in the Registration
Statement and the Prospectus.
(4) NO MATERIAL ADVERSE CHANGE IN BUSINESS. Since the
respective dates as of which information is given in the
Registration Statement and the Prospectus, except as otherwise
stated therein, (A) there has been no material adverse change in the
condition, financial or otherwise, or in the earnings or business
affairs of the Company and its
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subsidiaries considered as one enterprise, whether or not arising in
the ordinary course of business (a "Material Adverse Effect"), (B)
there have been no transactions entered into by the Company or any
of its subsidiaries, other than those arising in the ordinary course
of business, which are material with respect to the Company and its
subsidiaries considered as one enterprise and (C) except for regular
dividends on the Company's common stock or preferred stock, in
amounts per share that are consistent with past practice or the
applicable charter document or supplement thereto, respectively,
there has been no dividend or distribution of any kind declared,
paid or made by the Company on any class of its capital stock.
(5) GOOD STANDING OF THE COMPANY. The Company has been
duly organized and is validly existing as a corporation in good
standing under the laws of the State of Delaware and has corporate
power and authority to own, lease and operate its properties and to
conduct its business as described in the Prospectus and to enter
into and perform its obligations under, or as contemplated under,
this Underwriting Agreement and the applicable Terms Agreement. The
Company is duly qualified as a foreign corporation to transact
business and is in good standing in each other jurisdiction in which
such qualification is required, whether by reason of the ownership
or leasing of property or the conduct of business, except where the
failure to so qualify or be in good standing would not result in a
Material Adverse Effect.
(6) GOOD STANDING OF SUBSIDIARIES. Each subsidiary listed on
Schedule A attached hereto (the "Material Subsidiaries") has been duly
organized and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, has corporate
power and authority to own, lease and operate its properties and to
conduct its business as described in the Prospectus and is duly
qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure to so qualify or be in
good standing would not result in a Material Adverse Effect. Except as
otherwise stated in the Registration Statement and the Prospectus, all
of the issued and outstanding capital stock of each Material Subsidiary
has been duly authorized and is validly issued, fully paid and
non-assessable and is owned by the Company, directly or through
subsidiaries, free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity. None of the outstanding
shares of capital stock of any Material Subsidiary was issued in
violation of preemptive or other similar rights of any securityholder
of such Material Subsidiary.
(7) AUTHORIZATION OF THIS UNDERWRITING AGREEMENT AND TERMS
AGREEMENT. This Underwriting Agreement has been, and the applicable
Terms Agreement as of the date thereof will have been, duly authorized,
executed and delivered by the Company.
(8) AUTHORIZATION OF DEBT SECURITIES. If the Underwritten
Securities being sold pursuant to the applicable Terms Agreement
include Debt Securities, such Underwritten Securities have been, or as
of the date of such Terms Agreement will have been, duly authorized by
the Company for issuance and sale pursuant to this Underwriting
Agreement and such Terms Agreement. Such Underwritten Securities,
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when issued and authenticated in the manner provided for in the
applicable Indenture and delivered against payment of the
consideration therefor specified in such Terms Agreement, will
constitute valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or other similar laws
affecting the enforcement of creditors' rights generally or by
general equitable principles (regardless of whether enforcement is
considered in a proceeding in equity or at law), and except further
as enforcement thereof may be limited by requirements that a claim
with respect to any Debt Securities payable in a foreign or
composite currency (or a foreign or composite currency judgment in
respect of such claim) be converted into U.S. dollars at a rate of
exchange prevailing on a date determined pursuant to applicable law
or by governmental authority to limit, delay or prohibit the making
of payments outside the United States. Such Underwritten Securities
will be in the form contemplated by, and each registered holder
thereof is entitled to the benefits of, the applicable Indenture.
(9) AUTHORIZATION OF THE INDENTURES. If the Underwritten
Securities being sold pursuant to the applicable Terms Agreement
include Debt Securities, each applicable Indenture has been, or prior
to the issuance of the Debt Securities thereunder will have been, duly
authorized, executed and delivered by the Company and, upon such
authorization, execution and delivery, will constitute a valid and
binding agreement of the Company, enforceable against the Company in
accordance with its terms, except as the enforcement thereof may be
limited by bankruptcy, insolvency (including, without limitation, all
laws relating to fraudulent transfers), reorganization, moratorium or
other similar laws affecting the enforcement of creditors' rights
generally or by general equitable principles (regardless of whether
enforcement is considered in a proceeding in equity or at law).
(10) DESCRIPTIONS OF THE UNDERWRITTEN SECURITIES AND
INDENTURES. The Underwritten Securities being sold pursuant to the
applicable Terms Agreement and each applicable Indenture, as of each
Representation Date, and any Underlying Securities, when issued and
delivered in accordance with the terms of the related Underwritten
Securities, will conform in all material respects to the statements
relating thereto contained in the Prospectus and will be in
substantially the form filed or incorporated by reference, as the
case may be, as an exhibit to the Registration Statement.
(11) ABSENCE OF DEFAULTS AND CONFLICTS. Neither the
Company nor any of its Material Subsidiaries is in violation of its
charter or by-laws. To the Company's best knowledge after due
inquiry, neither the Company nor any of its subsidiaries is in
default in the performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, lease or
other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which it or any of them may be bound,
or to which any of the assets, properties or operations of the Company
or any of its subsidiaries is subject (collectively, "Agreements and
Instruments"), except for such defaults that would not result in a
Material Adverse Effect. The execution, delivery and performance of
this Underwriting Agreement, the applicable Terms Agreement and each
applicable Indenture and any other agreement or
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instrument entered into or issued or to be entered into or issued
by the Company in connection with the transactions contemplated
hereby or thereby or in the Registration Statement and the
Prospectus and the consummation of the transactions contemplated
herein and in the Registration Statement and the Prospectus
(including the issuance and sale of the Underwritten Securities and
the use of the proceeds from the sale of the Underwritten Securities
as described under the caption "Use of Proceeds" as well as the
issuance of any Underlying Securities) and compliance by the Company
with its obligations hereunder and thereunder have been duly
authorized by all necessary corporate action and, to the Company's
best knowledge after the inquiry, (A) do not and will not, whether
with or without the giving of notice or passage of time or both,
conflict with or constitute a breach of, or default or Repayment
Event (as defined below) under, or result in the creation or
imposition of any lien, charge or encumbrance upon any assets,
properties or operations of the Company or any of its subsidiaries
pursuant to, any Agreements and Instruments (B) result in any
violation of (i) the provisions of the charter or by-laws of the
Company or any of its subsidiaries or (ii) any applicable law,
statute, rule, regulation, judgment, order, writ or decree of any
government, government instrumentality or court, domestic or foreign,
having jurisdiction over the Company or any of its subsidiaries or
any of their assets, properties or operations, except for such
defaults, Repayment Events and violations that would not result in a
Material Adverse Effect. As used herein, a "Repayment Event" means
any event or condition which gives the holder of any note, debenture
or other evidence of indebtedness (or any person acting on such
holder's behalf) the right to require the repurchase, redemption or
repayment of all or a portion of such indebtedness by the Company or
any of its subsidiaries.
(12) ABSENCE OF PROCEEDINGS. There is no action, suit,
proceeding, inquiry or investigation before or brought by any court
or governmental agency or body, domestic or foreign, now pending, or
to the knowledge of the Company threatened, against or affecting the
Company or any of its subsidiaries which is required to be disclosed
in the Registration Statement and the Prospectus (other than as
stated therein) or which might reasonably be expected to materially
and adversely affect the consummation of the transactions contemplated
under the Prospectus, this Underwriting Agreement, the applicable
Terms Agreement or any applicable Indenture or the performance
by the Company of its obligations hereunder and thereunder.
(13) ABSENCE OF FURTHER REQUIREMENTS. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or
agency, domestic or foreign, is necessary or required for the due
authorization, execution and delivery by the Company of this
Underwriting Agreement or the applicable Terms Agreement or for the
performance by the Company of the transactions contemplated under
the Prospectus, this Underwriting Agreement, such Terms Agreement or
any applicable Indenture, except such as have been already made,
obtained or rendered, as applicable.
(14) INVESTMENT COMPANY ACT. The Company is not, and upon
the issuance and sale of the Underwritten Securities as herein
contemplated and the application of the net proceeds therefrom as
described in the Prospectus will not be, an "investment
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company" within the meaning of the Investment Company Act of 1940,
as amended (the "1940 Act").
(b) OFFICERS' CERTIFICATES. Any certificate signed by any officer
of the Company and delivered to any Underwriter or to counsel for the
Underwriters in connection with the offering of the Underwritten Securities
shall be deemed a representation and warranty by the Company to each
Underwriter as to the matters covered thereby on the date of such certificate.
SECTION 2. SALE AND DELIVERY TO UNDERWRITERS; CLOSING.
(a) UNDERWRITTEN SECURITIES. The several commitments of the
Underwriters to purchase the Underwritten Securities pursuant to the
applicable Terms Agreement shall be deemed to have been made on the basis of
the representations, warranties and agreements herein contained and shall be
subject to the terms and conditions herein set forth.
(b) OPTION UNDERWRITTEN SECURITIES. Subject to the terms and
conditions herein set forth, the Company may grant, if so provided in the
applicable Terms Agreement, an option to the Underwriters, severally and not
jointly, to purchase up to the number or aggregate principal amount, as the
case may be, of the Option Underwritten Securities set forth therein at a
price per Option Underwritten Security equal to the price per Initial
Underwritten Security, less an amount equal to any dividends or distributions
declared by the Company and paid or payable on the Initial Underwritten
Securities but not payable on the Option Underwritten Securities. Such
option, if granted, will expire 30 days after the date of such Terms
Agreement, and may be exercised in whole or in part from time to time only
for the purpose of covering over-allotments which may be made in connection
with the offering and distribution of the Initial Underwritten Securities
upon notice by the Representatives to the Company setting forth the number or
aggregate principal amount, as the case may be, of Option Underwritten
Securities as to which the several Underwriters are then exercising the
option and the time, date and place of payment and delivery for such Option
Underwritten Securities. Any such time and date of payment and delivery
(each, a "Date of Delivery") shall be determined jointly by the
Representatives and the Company, but shall not be later than five full
business days after the exercise of said option, nor in any event prior to
the Closing Time, unless otherwise agreed upon jointly by the Representatives
and the Company. If the option is exercised as to all or any portion of the
Option Underwritten Securities, each of the Underwriters, severally and not
jointly, will purchase that proportion of the total number or aggregate
principal amount, as the case may be, of Option Underwritten Securities then
being purchased which the number or aggregate principal amount, as the case
may be, of Initial Underwritten Securities each such Underwriter has
severally agreed to purchase as set forth in such Terms Agreement bears to
the total number or aggregate principal amount, as the case may be, of
Initial Underwritten Securities, subject to such adjustments as the
Representatives in their discretion shall make to eliminate any sales or
purchases of a fractional number or aggregate principal amount, as the case
may be, of Option Underwritten Securities.
(c) PAYMENT. Payment of the purchase price for, and delivery of,
the Initial Underwritten Securities shall be made at the offices of counsel
for the Underwriters, or at such other place as shall be agreed upon by the
Representatives and the Company, at 9:00 A.M. (Eastern time) on the third
(fourth, if the pricing occurs after 4:30 P.M. (Eastern time) on any
8
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given day) business day after the date of the applicable Terms Agreement
(unless postponed in accordance with the provisions of Section 10 hereof), or
such other time not later than ten business days after such date as shall be
agreed upon by the Representatives and the Company (such time and date of
payment and delivery being herein called "Closing Time"). In addition, in the
event that the Underwriters have exercised their option, if any, to purchase
any or all of the Option Underwritten Securities, payment of the purchase
price for, and delivery of such Option Underwritten Securities, shall be made
at the above-mentioned offices of counsel for the Underwriters, or at such
other place as shall be agreed upon by the Representatives and the Company,
on the relevant Date of Delivery as specified in the notice from the
Representatives to the Company.
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to
the Representatives for the respective accounts of the Underwriters of the
Underwritten Securities to be purchased by them. It is understood that each
Underwriter has authorized a Representative (to be determined at such time), for
its account, to accept delivery of, receipt for, and make payment of the
purchase price for, the Underwritten Securities which it has severally agreed to
purchase. Such Representative, individually and not as representative of the
Underwriters, may (but shall not be obligated to) make payment of the purchase
price for the Underwritten Securities to be purchased by any Underwriter whose
funds have not been received by the Closing Time or the relevant Date of
Delivery, as the case may be, but such payment shall not relieve such
Underwriter from its obligations hereunder.
(d) DENOMINATIONS; REGISTRATION. The Underwritten Securities or
certificates for the Underwritten Securities, as applicable, shall be in such
denominations and registered in such names as the Representatives may request in
writing at least one full business day prior to the Closing Time or the relevant
Date of Delivery, as the case may be. The Underwritten Securities or
certificates for the Underwritten Securities or Depositary Receipts evidencing
the Depositary Shares, as applicable, will be made available for examination and
packaging by the Representatives in The City of New York not later than 10:00
A.M. (Eastern time) on the business day prior to the Closing Time or the
relevant Date of Delivery, as the case may be.
SECTION 3. COVENANTS OF THE COMPANY. The Company covenants with each
Underwriter participating in the offering of Underwritten Securities, as
follows:
(a) COMPLIANCE WITH SECURITIES REGULATIONS AND COMMISSION REQUESTS.
The Company, subject to Section 3(b), will comply with the requirements of
Rule 430A of the 1933 Act Regulations and/or Rule 434 of the 1933 Act
Regulations, if and as applicable, and will notify the Representatives
immediately, and confirm the notice in writing, of (i) the effectiveness of
any post-effective amendment to the Registration Statement or the filing of
any supplement or amendment to the Prospectus, (ii) the receipt of any
comments from the Commission, (iii) any request by the Commission for any
amendment to the Registration Statement or any amendment or supplement to the
Prospectus or for additional information, and (iv) the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or of any order preventing or suspending the use of any preliminary
prospectus, or of the suspension of the qualification of the Underwritten
Securities for offering or sale in any jurisdiction, or of the initiation or
threatening of any proceedings for any of such purposes. The Company will
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promptly effect the filings necessary pursuant to Rule 424 and will take such
steps as it deems necessary to ascertain promptly whether the Prospectus
transmitted for filing under Rule 424 was received for filing by the
Commission and, in the event that it was not, it will promptly file the
Prospectus. The Company will make every reasonable effort to prevent the
issuance of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(b) FILING OF AMENDMENTS. The Company will give the Representatives
notice of its intention to file or prepare any amendment to the Registration
Statement (including any filing under Rule 462(b) of the 1933 Act
Regulations), any Term Sheet or any amendment, supplement or revision to
either the prospectus included in the Registration Statement at the time it
became effective or to the Prospectus, whether pursuant to the 1933 Act, the
1934 Act or otherwise, will furnish the Representatives with copies of any
such documents a reasonable amount of time prior to such proposed filing or
use, as the case may be, and will not file or use any such document to which
the Representatives or counsel for the Underwriters shall reasonably object.
(c) DELIVERY OF REGISTRATION STATEMENTS. The Company has furnished
or will deliver to the Representatives and counsel for the Underwriters,
without charge, signed copies of the Registration Statement as originally
filed and of each amendment thereto (including exhibits filed therewith or
incorporated by reference therein and documents incorporated or deemed to be
incorporated by reference therein) and signed copies of all consents and
certificates of experts, and will also deliver to the Representatives,
without charge, a conformed copy of the Registration Statement as originally
filed and of each amendment thereto (without exhibits) for each of the
Underwriters. The Registration Statement and each amendment thereto furnished
to the Underwriters will be identical to any electronically transmitted
copies thereof filed with the Commission pursuant to EDGAR, except to the
extent permitted by Regulation S-T.
(d) DELIVERY OF PROSPECTUSES. The Company will deliver to each
Underwriter, without charge, as many copies of each preliminary prospectus as
such Underwriter may reasonably request, and the Company hereby consents to
the use of such copies for purposes permitted by the 1933 Act. The Company
will furnish to each Underwriter, without charge, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act,
such number of copies of the Prospectus as such Underwriter may reasonably
request. The Prospectus and any amendments or supplements thereto furnished
to the Underwriters will be identical to any electronically transmitted
copies thereof filed with the Commission pursuant to EDGAR, except to the
extent permitted by Regulation S-T.
(e) CONTINUED COMPLIANCE WITH SECURITIES LAWS. The Company will
comply with the 1933 Act and the 1933 Act Regulations and the 1934 Act and
the 1934 Act Regulations so as to permit the completion of the distribution
of the Underwritten Securities as contemplated in this Underwriting Agreement
and the applicable Terms Agreement and in the Registration Statement and the
Prospectus. If at any time when the Prospectus is required by the 1933 Act or
the 1934 Act to be delivered in connection with sales of the Securities, any
event shall occur or condition shall exist as a result of which it is
necessary, in the opinion of counsel for the Underwriters or for the Company,
to amend the Registration Statement in order that the Registration Statement
will not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading or to amend or supplement the Prospectus in
order that the Prospectus will not include an untrue statement of a
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material fact or omit to state a material fact necessary in order to make the
statements therein not misleading in the light of the circumstances existing
at the time it is delivered to a purchaser, or if it shall be necessary, in
the opinion of such counsel, at any such time to amend the Registration
Statement or amend or supplement the Prospectus in order to comply with the
requirements of the 1933 Act or the 1933 Act Regulations, the Company will
promptly prepare and file with the Commission, subject to Section 3(b), such
amendment or supplement as may be necessary to correct such statement or
omission or to make the Registration Statement or the Prospectus comply with
such requirements, and the Company will furnish to the Underwriters, without
charge, such number of copies of such amendment or supplement as the
Underwriters may reasonably request.
(f) BLUE SKY QUALIFICATIONS. The Company will use its reasonable
best efforts, in cooperation with the Underwriters, to qualify the
Underwritten Securities and any related Underlying Securities for offering
and sale under the applicable securities laws of such states and other
jurisdictions (domestic or foreign) as the Representatives may reasonably
designate and to maintain such qualifications in effect for a period of not
less than one year from the date of the applicable Terms Agreement; provided,
however, that the Company shall not be obligated to file any general consent
to service of process or to qualify as a foreign corporation or as a dealer
in securities in any jurisdiction in which it is not so qualified or to
subject itself to taxation in respect of doing business in any jurisdiction
in which it is not otherwise so subject. In each jurisdiction in which the
Underwritten Securities or any related Underlying Securities have been so
qualified, the Company will file such statements and reports as may be
required by the laws of such jurisdiction to continue such qualification in
effect for a period of not less than one year from the date of such Terms
Agreement.
(g) EARNINGS STATEMENT. The Company will timely file such reports
pursuant to the 1934 Act as are necessary in order to make generally
available to its securityholders as soon as practicable an earnings statement
for the purposes of, and to provide the benefits contemplated by, the last
paragraph of Section 11(a) of the 1933 Act.
(h) USE OF PROCEEDS. The Company will use the net proceeds received
by it from the sale of the Underwritten Securities in the manner specified in
the Prospectus under "Use of Proceeds".
(i) LISTING. The Company will use its reasonable best efforts to
effect the listing of the Underwritten Securities and any related Underlying
Securities, prior to the Closing Time, on any national securities exchange or
quotation system if and as specified in the applicable Terms Agreement.
(j) RESTRICTION ON SALE OF SECURITIES. Between the date of the
applicable Terms Agreement and the Closing Time or such other date specified
in such Terms Agreement, the Company will not, without the prior written
consent of the Representatives, directly or indirectly, issue, sell, offer or
contract to sell, grant any option for the sale of, or otherwise dispose of,
the securities specified in such Terms Agreement.
(k) REPORTING REQUIREMENTS. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act,
will file all documents required to
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be filed with the Commission pursuant to the 1934 Act within the time periods
required by the 1934 Act and the 1934 Act Regulations.
SECTION 4. PAYMENT OF EXPENSES.
(a) EXPENSES. The Company will pay all expenses incident to the
performance of its obligations under this Underwriting Agreement or the
applicable Terms Agreement, including (i) the preparation, printing and
filing of the Registration Statement (including financial statements and
exhibits) as originally filed and of each amendment thereto, (ii) the
preparation, printing and delivery to the Underwriters of this Underwriting
Agreement, any Terms Agreement, any Agreement among Underwriters, the
Indentures and such other documents as may be required in connection with the
offering, purchase, sale, issuance or delivery of the Underwritten Securities
or any related Underlying Securities, (iii) the preparation, issuance and
delivery of the Underwritten Securities and any related Underlying
Securities, any certificates for the Underwritten Securities or such
Underlying Securities, as applicable, to the Underwriters, including any
transfer taxes and any stamp or other duties payable upon the sale, issuance
or delivery of the Underwritten Securities to the Underwriters, (iv) the fees
and disbursements of the Company's counsel, accountants and other advisors or
agents (including transfer agents and registrars), as well as the fees and
disbursements of the Trustees and their respective counsel, (v) the
qualification of the Underwritten Securities and any related Underlying
Securities under state securities laws in accordance with the provisions of
Section 3(f) hereof, including filing fees and the reasonable fees and
disbursements of counsel for the Underwriters in connection therewith and in
connection with the preparation, printing and delivery of the Blue Sky
Survey, and any amendment thereto, (vi) the printing and delivery to the
Underwriters of copies of each preliminary prospectus, any Term Sheet, and
the Prospectus and any amendments or supplements thereto, (vii) the fees
charged by nationally recognized statistical rating organizations for the
rating of the Underwritten Securities and any related Underlying Securities,
if applicable, (viii) the fees and expenses incurred with respect to the
listing of the Underwritten Securities and any related Underlying Securities,
if applicable, (ix) the filing fees incident to, and the reasonable fees and
disbursements of one counsel to the Underwriters in connection with, the
review, if any, by the National Association of Securities Dealers, Inc. (the
"NASD") of the terms of the sale of the Underwritten Securities and any
related Underlying Securities, and (x) the fees and expenses of any
Underwriter acting in the capacity of a "qualified independent underwriter"
(as defined in Section 2(l) of Schedule E of the bylaws of the NASD), if
applicable.
(b) TERMINATION OF AGREEMENT. If the applicable Terms Agreement is
terminated by the Representatives in accordance with the provisions of
Section 5 or Section 9(b)(i) hereof, the Company shall reimburse the
Underwriters for up to $50,000 of out-of-pocket expenses, in addition to the
reasonable fees and disbursements of one counsel for the Underwriters.
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SECTION 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The obligations
of the Underwriters to purchase and pay for the Underwritten Securities
pursuant to the applicable Terms Agreement are subject to the accuracy of the
representations and warranties of the Company contained in Section 1 hereof
or in certificates of any officer of the Company delivered pursuant to the
provisions hereof, to the performance by the Company of its covenants and
other obligations hereunder, and to the following further conditions:
(a) EFFECTIVENESS OF REGISTRATION STATEMENT. The Registration
Statement, including any Rule 462(b) Registration Statement, has become
effective under the 1933 Act and no stop order suspending the effectiveness
of the Registration Statement shall have been issued under the 1933 Act and
no proceedings for that purpose shall have been instituted or be pending or
threatened by the Commission, and any request on the part of the Commission
for additional information shall have been complied with to the reasonable
satisfaction of counsel to the Underwriters. A prospectus containing
information relating to the description of the Underwritten Securities and
any related Underlying Securities, the specific method of distribution and
similar matters shall have been filed with the Commission in accordance with
Rule 424(b)(1), (2), (3), (4) or (5), as applicable (or any required
post-effective amendment providing such information shall have been filed and
declared effective in accordance with the requirements of Rule 430A), or, if
the Company has elected to rely upon Rule 434 of the 1933 Act Regulations, a
Term Sheet including the Rule 434 Information shall have been filed with the
Commission in accordance with Rule 424(b)(7).
(b) OPINION OF COUNSEL FOR COMPANY. At Closing Time, the
Representatives shall have received the opinion, dated as of Closing Time, of
Cravath Swaine & Moore, counsel for the Company, together with the opinion of
Pamela F. Craven, Vice President, General Counsel and Secretary for the
Company, each in form and substance reasonably satisfactory to counsel for
the Underwriters, together with signed or reproduced copies of such letters
for each of the other Underwriters, to the effect set forth in Exhibit B
hereto and to such further effect as counsel to the Underwriters may
reasonably request.
(c) OPINION OF COUNSEL FOR UNDERWRITERS. At Closing Time, the
Representatives shall have received the favorable opinion, dated as of
Closing Time, of counsel for the Underwriters, together with signed or
reproduced copies of such letter for each of the other Underwriters, with
respect to the matters set forth in (1), (2), (6), (7) to (14), as applicable
(it being understood that any opinion required with respect to the
Underwritten Securities or the Underlying Securities, as the case may be, not
being subject to preemptive or other similar rights of the securityholders of
the Company shall be limited to such rights arising by operation of law or
under the charter or by-laws of the Company), (15), (16) (solely as to the
information in the Prospectus under "Description of the Underwritten
Securities" and "Description of the Underlying Securities", if any, or any
caption purporting to describe any such Securities), (22), (23), (26) and the
penultimate paragraph of Exhibit B hereto. In giving such opinion, such
counsel may rely, as to all matters governed by the laws of jurisdictions
other than the law of the State of New York, the federal law of the United
States and the General Corporation Law of the State of Delaware, upon the
opinions of counsel satisfactory to the Representatives. Such counsel may
also state that, insofar as such opinion involves factual matters, they have
relied, to the extent they deem proper, upon certificates of officers of the
Company and its subsidiaries and certificates of public officials.
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(d) OFFICERS' CERTIFICATE. At Closing Time, there shall not have
been, since the date of the applicable Terms Agreement or since the
respective dates as of which information is given in the Prospectus, any
material adverse change in the condition, financial or otherwise, or in the
earnings or business affairs of the Company and its subsidiaries considered
as one enterprise, whether or not arising in the ordinary course of business,
and the Representatives shall have received a certificate of the Treasurer of
the Company and of the chief financial officer or chief accounting officer of
the Company, dated as of Closing Time, to the effect that (i) there has been
no such material adverse change, (ii) the representations and warranties in
Section 1(a) are true and correct with the same force and effect as though
expressly made at and as of the Closing Time, (iii) the Company has complied
with all agreements and satisfied all conditions on its part to be performed
or satisfied at or prior to the Closing Time, and (iv) no stop order
suspending the effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been instituted, are pending or, to
the best of such officer's knowledge, are threatened by the Commission.
(e) ACCOUNTANT'S COMFORT LETTER. At the time of the execution of
the applicable Terms Agreement, the Representatives shall have received from
PricewaterhouseCoopers a letter dated such date, in form and substance
satisfactory to the Representatives, together with signed or reproduced
copies of such letter for each of the other Underwriters, containing
statements and information of the type ordinarily included in accountants'
"comfort letters" to underwriters with respect to the financial statements
and certain financial information contained in the Registration Statement and
the Prospectus.
(f) BRING-DOWN COMFORT LETTER. At Closing Time, the Representatives
shall have received from PricewaterhouseCoopers a letter, dated as of Closing
Time, to the effect that they reaffirm the statements made in the letter
furnished pursuant to subsection (e) of this Section 5, except that the
specified date referred to shall be a date not more than three business days
prior to the Closing Time.
(g) RATINGS. At Closing Time and at any relevant Date of Delivery,
the Underwritten Securities shall have the ratings accorded by any
"nationally recognized statistical rating organization", as defined by the
Commission for purposes of Rule 436(g)(2) of the 1933 Act Regulations, if and
as specified in the applicable Terms Agreement, and the Company shall have
delivered to the Representatives a letter, dated as of such date, from each
such rating organization, or other evidence satisfactory to the
Representatives, confirming that the Underwritten Securities have such
ratings. Since the time of execution of such Terms Agreement, there shall not
have occurred a downgrading in, or withdrawal of, the rating assigned to the
Underwritten Securities or any of the Company's other securities by any such
rating organization, and no such rating organization shall have publicly
announced that it has under surveillance or review its rating of the
Underwritten Securities or any of the Company's other securities.
(h) APPROVAL OF LISTING. At Closing Time, the Underwritten
Securities shall have been approved for listing, subject only to official
notice of issuance, if and as specified in the applicable Terms Agreement.
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(i) NO OBJECTION. If the Registration Statement or an offering of
Underwritten Securities has been filed with the NASD for review, the NASD
shall not have raised any objection with respect to the fairness and
reasonableness of the underwriting terms and arrangements.
(j) [LOCK-UP AGREEMENTS. On the date of the applicable Terms
Agreement, the Representatives shall have received, in form and substance
satisfactory to it, each lock-up agreement, if any, specified in such Terms
Agreement as being required to be delivered by the persons listed therein.]
(k) OVER-ALLOTMENT OPTION. In the event that the Underwriters are
granted an over-allotment option by the Company in the applicable Terms
Agreement and the Underwriters exercise their option to purchase all or any
portion of the Option Underwritten Securities, the representations and
warranties of the Company contained herein and the statements in any
certificates furnished by the Company or any of its subsidiaries hereunder
shall be true and correct as of each Date of Delivery, and, at the relevant
Date of Delivery, the Representatives shall have received:
(1) A certificate, dated such Date of Delivery, of the
Treasurer of the Company and the chief financial officer or chief
accounting officer of the Company, confirming that the certificate
delivered at the Closing Time pursuant to Section 5(d) hereof remains
true and correct as of such Date of Delivery.
(2) The opinion of Cravath Swaine & Moore, counsel for the
Company, together with the opinion of Pamela F. Craven, Vice President,
General Counsel and Secretary for the Company, each in form and
substance reasonably satisfactory to counsel for the Underwriters,
dated such Date of Delivery, relating to the Option Underwritten
Securities and otherwise to the same effect as the opinion required by
Section 5(b) hereof.
(3) The opinion of counsel for the Underwriters, dated such
Date of Delivery, relating to the Option Underwritten Securities and
otherwise to the same effect as the opinion required by Section 5(c)
hereof.
(4) A letter from PricewaterhouseCoopers, in form and
substance reasonably satisfactory to the
Representatives and dated such Date of Delivery,
substantially in the same form and substance as the
letter furnished to the Representatives pursuant to
Section 5(f) hereof, except that the "specified date"
on the letter furnished pursuant to this paragraph
shall be a date not more than three business days
prior to such Date of Delivery.
(5) Since the time of execution of such Terms Agreement,
there shall not have occurred a downgrading in, or
withdrawal of, the rating assigned to the
Underwritten Securities or any of the Company's other
securities by any such rating organization, and no
such rating organization shall have publicly
announced that it has under surveillance or review
its rating of the Underwritten Securities or any of
the Company's other securities.
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(l) ADDITIONAL DOCUMENTS. At Closing Time and at each Date of
Delivery, counsel to the Underwriters shall have been furnished with such
documents and opinions as they may reasonably require for the purpose of
enabling them to pass upon the issuance and sale of the Underwritten
Securities as herein contemplated, or in order to evidence the accuracy of
any of the representations or warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Company in
connection with the issuance and sale of the Underwritten Securities as
herein contemplated shall be satisfactory in form and substance to the
Representatives and counsel for the Underwriters.
(m) TERMINATION OF TERMS AGREEMENT. If any condition specified in
this Section 5 shall not have been fulfilled when and as required to be
fulfilled, the applicable Terms Agreement (or, with respect to the
Underwriters' exercise of any applicable over-allotment option for the
purchase of Option Underwritten Securities on a Date of Delivery after the
Closing Time, the obligations of the Underwriters to purchase the Option
Underwritten Securities on such Date of Delivery) may be terminated by the
Representatives by notice to the Company at any time at or prior to the
Closing Time (or such Date of Delivery, as applicable), and such termination
shall be without liability of any party to any other party except as provided
in Section 4 and except that Sections 6 and 7 shall survive any such
termination and remain in full force and effect.
SECTION 6. INDEMNIFICATION.
(a) INDEMNIFICATION OF UNDERWRITERS. The Company agrees to
indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act as follows:
(1) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), including the Rule
430A Information and the Rule 434 Information deemed to be a part
thereof, if applicable, or the omission or alleged omission therefrom
of a material fact required to be stated therein or necessary to make
the statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact included in
any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto), or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
(2) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission; provided
that (subject to Section 6(d) below) any such settlement is effected
with the written consent of the Company; and
(3) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by the
Representatives), reasonably incurred in
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investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement
or omission, to the extent that any such expense is not paid under
(i) or (ii) above;
PROVIDED, HOWEVER, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by or
on behalf of any Underwriter expressly for use in the Registration Statement (or
any amendment thereto), including the Rule 430A Information and the Rule 434
Information deemed to be a part thereof, if applicable, or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto).
(b) INDEMNIFICATION OF COMPANY, DIRECTORS AND OFFICERS. Each
Underwriter severally agrees to indemnify and hold harmless the Company, its
directors, each of its officers who signed the Registration Statement, and
each person, if any, who controls the Company within the meaning of Section
15 of the 1933 Act or Section 20 of the 1934 Act against any and all loss,
liability, claim, damage and expense described in the indemnity contained in
subsection (a) of this Section, as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in
the Registration Statement (or any amendment thereto), including the Rule
430A Information and the Rule 434 Information deemed to be a part thereof, if
applicable, or any preliminary prospectus or the Prospectus (or any amendment
or supplement thereto) in reliance upon and in conformity with written
information furnished to the Company by or on behalf of such Underwriter for
use in the Registration Statement (or any amendment thereto) or such
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto).
(c) ACTIONS AGAINST PARTIES; NOTIFICATION. Each indemnified party
shall give notice as promptly as reasonably practicable to each indemnifying
party of any action commenced against it in respect of which indemnity may be
sought hereunder, but failure to so notify an indemnifying party shall not
relieve such indemnifying party from any liability hereunder to the extent it
is not materially prejudiced as a result thereof and in any event shall not
relieve it from any liability which it may have otherwise than on account of
this indemnity agreement. The indemnifying parties shall control the defense
of any action giving rise to the right of indemnification. In no event shall
the indemnifying parties be liable for reasonable fees and expenses of more
than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out
of the same general allegations or circumstances. The indemnifying party
shall be entitled to appoint counsel of the indemnifying party's choice at
the indemnifying party's expense to represent the indemnified party in any
action for which indemnification is sought (in which case the indemnifying
party shall not thereafter be responsible for the fees and expenses of any
separate counsel retained by the indemnified party or parties); PROVIDED,
HOWEVER that such counsel shall be satisfactory to the indemnified party.
Subject to the preceding sentence, an indemnified party may participate at
its own expense in the defense of any such action; provided, however, that
counsel to the indemnifying party shall not (except with the consent of the
indemnified party) also be counsel
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to the indemnified party. No indemnifying party shall, without the prior
written consent of the indemnified parties, settle or compromise or consent
to the entry of any judgment with respect to any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever in respect of which indemnification or
contribution could be sought under this Section 6 or Section 7 hereof
(whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising
out of such litigation, investigation, proceeding or claim and (ii) does not
include a statement as to or an admission of fault, culpability or a failure
to act by or on behalf of any indemnified party.
SECTION 7. CONTRIBUTION. If the indemnification provided for in
Section 6 hereof is for any reason unavailable to or insufficient to hold
harmless an indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount of such losses, liabilities, claims,
damages and expenses incurred by such indemnified party, as incurred, (i) in
such proportion as is appropriate to reflect the relative benefits received
by the Company, on the one hand, and the Underwriters, on the other hand,
from the offering of the Underwritten Securities pursuant to the applicable
Terms Agreement or (ii) if the allocation provided by clause (i) is not
permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Company, on the one hand, and the Underwriters, on the
other hand, in connection with the statements or omissions which resulted in
such losses, liabilities, claims, damages or expenses, as well as any other
relevant equitable considerations.
The relative benefits received by the Company, on the one hand, and the
Underwriters, on the other hand, in connection with the offering of the
Underwritten Securities pursuant to the applicable Terms Agreement shall be
deemed to be in the same respective proportions as the total net proceeds from
the offering of such Underwritten Securities (before deducting expenses)
received by the Company and the total underwriting discount received by the
Underwriters, in each case as set forth on the cover of the Prospectus, or, if
Rule 434 is used, the corresponding location on the Term Sheet bear to the
aggregate initial public offering price of such Underwritten Securities as set
forth on such cover.
The relative fault of the Company, on the one hand, and the
Underwriters, on the other hand, shall be determined by reference to, among
other things, whether any such untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact relates to
information supplied by the Company or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of
the equitable considerations referred to above in this Section 7. The
aggregate amount of losses, liabilities, claims, damages and expenses
incurred by an indemnified party and referred to above in this Section 7
shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in investigating, preparing or
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defending against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever
based upon any such untrue or alleged untrue statement or omission or alleged
omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall
be required to contribute any amount in excess of the amount by which the total
price at which the Underwritten Securities underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages which
such Underwriter has otherwise been required to pay by reason of any such untrue
or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall
have the same rights to contribution as the Company. The Underwriters'
respective obligations to contribute pursuant to this Section 7 are several in
proportion to the number or aggregate principal amount, as the case may be, of
Initial Underwritten Securities set forth opposite their respective names in the
applicable Terms Agreement, and not joint.
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY. Except in the event of termination of this Agreement prior to
Closing Time, all representations, warranties and agreements contained in
this Underwriting Agreement or the applicable Terms Agreement or in
certificates of officers of the Company submitted pursuant hereto or thereto
shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or controlling person,
or by or on behalf of the Company, and shall survive delivery of and payment
for the Underwritten Securities.
SECTION 9. TERMINATION.
(a) UNDERWRITING AGREEMENT. This Underwriting Agreement (excluding
the applicable Terms Agreement) may be terminated for any reason at any time
by the Company or by the Representatives upon the giving of 30 days' prior
written notice of such termination to the other party hereto.
(b) TERMS AGREEMENT. The Representatives may terminate the
applicable Terms Agreement, by notice to the Company, at any time at or prior
to the Closing Time or any relevant Date of Delivery, if (i) there has been,
since the time of execution of such Terms Agreement or since the respective
dates as of which information is given in the Prospectus, any material
adverse change in the condition, financial or otherwise, or in the earnings
or business affairs of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, (ii)
there has occurred, in the reasonable judgment of the Representatives, any
material adverse change in the financial markets in the United States or, if
the Underwritten Securities or any related Underlying Securities include Debt
Securities denominated or payable in, or indexed to, one or more foreign or
composite currencies, in the international financial markets, or any outbreak
of hostilities or escalation thereof or other calamity or crisis or any
change or development involving a prospective change in national or
19
<PAGE>
international political, financial or economic conditions, in each case the
effect of which is such as to make it, in the reasonable judgment of the
Representatives, impracticable to market the Underwritten Securities or to
enforce contracts for the sale of the Underwritten Securities, (iii) trading
in any securities of the Company has been suspended or materially limited by
the Commission or the New York Stock Exchange, or if trading generally on the
New York Stock Exchange or the American Stock Exchange or in the Nasdaq
National Market has been suspended or materially limited, or minimum or
maximum prices for trading have been fixed, or maximum ranges for prices have
been required, by either of said exchanges or by such system or by order of
the Commission, the NASD or any other governmental authority or (iv) a
banking moratorium has been declared by either Federal or New York
authorities or, if the Underwritten Securities or any related Underlying
Securities include Debt Securities denominated or payable in, or indexed to,
one or more foreign or composite currencies, by the relevant authorities in
the related foreign country or countries.
(c) LIABILITIES. If this Underwriting Agreement or the applicable
Terms Agreement is terminated pursuant to this Section 9, such termination
shall be without liability of any party to any other party except as provided
in Section 4 hereof, and provided further that Sections 6 and 7 (in the event
of termination prior to Closing Time) and Sections 1, 6, 7 and 8 (in the
event of termination subsequent to Closing Time) shall survive such
termination and remain in full force and effect.
SECTION 10. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS. If one or
more of the Underwriters shall fail at the Closing Time or the relevant Date
of Delivery, as the case may be, to purchase the Underwritten Securities
which it or they are obligated to purchase under the applicable Terms
Agreement (the "Defaulted Securities"), then the Representatives shall have
the right, within 24 hours thereafter, to make arrangements for one or more
of the non-defaulting Underwriters, or any other underwriters reasonably
acceptable to the Company, to purchase all, but not less than all, of the
Defaulted Securities in such amounts as may be agreed upon and upon the terms
herein set forth; if, however, the Representatives shall not have completed
such arrangements within such 24-hour period, then:
(a) if the number or aggregate principal amount, as the case
may be, of Defaulted Securities does not exceed 10% of the number or
aggregate principal amount, as the case may be, of Underwritten
Securities to be purchased on such date pursuant to such Terms
Agreement, the non-defaulting Underwriters shall be obligated,
severally and not jointly, to purchase the full amount thereof in the
proportions that their respective underwriting obligations under such
Terms Agreement bear to the underwriting obligations of all
non-defaulting Underwriters, or
(b) if the number or aggregate principal amount, as the case
may be, of Defaulted Securities exceeds 10% of the number or aggregate
principal amount, as the case may be, of Underwritten Securities to be
purchased on such date pursuant to such Terms Agreement, such Terms
Agreement (or, with respect to the Underwriters' exercise of any
applicable over-allotment option for the purchase of Option
Underwritten Securities on a Date of Delivery after the Closing Time,
the obligations of the Underwriters to purchase, and the Company to
sell, such Option Underwritten Securities
20
<PAGE>
on such Date of Delivery) shall terminate without liability on the
part of any non-defaulting Underwriter.
No action taken pursuant to this Section 10 shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in (i) a
termination of the applicable Terms Agreement or (ii) in the case of a Date of
Delivery after the Closing Time, a termination of the obligations of the
Underwriters and the Company with respect to the related Option Underwritten
Securities, as the case may be, either the Representatives or the Company shall
have the right to postpone the Closing Time or the relevant Date of Delivery, as
the case may be, for a period not exceeding seven days in order to effect any
required changes in the Registration Statement or the Prospectus or in any other
documents or arrangements.
SECTION 11. NOTICES. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to [ ]; and notices to the Company shall be
directed to it at 211 Mt. Airy Road, Basking Ridge, NJ 07920, attention of
General Counsel.
SECTION 12. PARTIES. This Underwriting Agreement and the applicable
Terms Agreement shall each inure to the benefit of and be binding upon the
Company, the Representatives and, upon execution of such Terms Agreement, any
other Underwriters and their respective successors. Nothing expressed or
mentioned in this Underwriting Agreement or such Terms Agreement is intended
or shall be construed to give any person, firm or corporation, other than the
Underwriters and the Company and their respective successors and the
controlling persons and officers and directors referred to in Sections 6 and
7 and their heirs and legal representatives, any legal or equitable right,
remedy or claim under or in respect of this Underwriting Agreement or such
Terms Agreement or any provision herein or therein contained. This
Underwriting Agreement and such Terms Agreement and all conditions and
provisions hereof and thereof are intended to be for the sole and exclusive
benefit of the parties hereto and thereto and their respective successors,
and said controlling persons and officers and directors and their heirs and
legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Underwritten Securities from any Underwriter
shall be deemed to be a successor by reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS UNDERWRITING AGREEMENT AND
ANY APPLICABLE TERMS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. SPECIFIED TIMES OF DAY
REFER TO NEW YORK CITY TIME.
SECTION 14. EFFECT OF HEADINGS. The Article and Section headings
herein and the Table of Contents are for convenience only and shall not
affect the construction hereof.
21
<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this Underwriting Agreement, along with all counterparts, will become a binding
agreement between the Representatives and the Company in accordance with its
terms.
Very truly yours,
AVAYA INC.
By:______________________________
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
By:_________________________________
Authorized Signatory
22
<PAGE>
Exhibit A
AVAYA INC.
DELAWARE
SENIOR DEBT SECURITIES
TERMS AGREEMENT
April __, 2001
To: Avaya Inc.
211 Mount Airy Rd.
Basking Ridge, NJ 07920
Ladies and Gentlemen:
We understand that Avaya Inc., a Delaware corporation (the "Company"),
proposes to issue and sell $ aggregate principal amount of its senior debt
securities (the "Debt Securities") (such securities also being hereinafter
referred to as the "[Initial] Underwritten Securities"). Subject to the terms
and conditions set forth or incorporated by reference herein, we the
underwriters named below (the "Underwriters") offer to purchase, severally and
not jointly, the principal amount of Underwritten Securities opposite their
names set forth below at the purchase price set forth below, and a proportionate
share of Option Underwritten Securities set forth below, to the extent any are
purchased.
A-1
<PAGE>
<TABLE>
<CAPTION>
[Number]
[Principal Amount]
UNDERWRITER OF [INITIAL] UNDERWRITTEN SECURITIES
----------------------------------------------------------------------------
<S> <C>
-------------------------------
Total [$]
===============================
</TABLE>
The Underwritten Securities shall have the following terms:
<TABLE>
<CAPTION>
DEBT SECURITIES
---------------
<S><C>
Title:
Rank:
Ratings:
Aggregate principal amount:
Denominations:
Currency of payment:
Interest rate or formula:
Interest payment dates:
Regular record dates:
Stated maturity date:
Redemption provisions:
Sinking fund requirements:
Conversion provisions:
Listing requirements:
Black-out provisions:
Fixed or Variable Price
Offering: [Fixed] [Variable] Price Offering
If Fixed Price Offering, initial public offering price per share: % of
the principal amount, plus accrued interest [amortized original issue
discount], if any, from _________________.
Purchase price per share: ___% of principal amount, plus accrued interest
[amortized original issue discount], if any, from _________________. Form:
Other terms and conditions:
Closing date and location:
</TABLE>
A-2
<PAGE>
Please accept this offer no later than ____ o'clock P.M. (New York City
time) on ______________ by signing a copy of this Terms Agreement in the space
set forth below and returning the signed copy to us.
Very truly yours,
By _______________________________
Authorized Signatory
[Acting on behalf of itself and the other
named Underwriters.]
Accepted:
AVAYA INC.
By _________________________
Name:
Title:
A-3
<PAGE>
Exhibit B
FORM OF OPINION OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(1) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware.
(2) The Company has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under, or as
contemplated under, the Underwriting Agreement and the applicable Terms
Agreement.
(3) The Underwriting Agreement and the applicable Terms Agreement have
been duly authorized, executed and delivered by the Company.
(4) Each Material Subsidiary has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the jurisdiction of
its incorporation, has corporate power and authority to own, lease and operate
its properties and to conduct its business as described in the Prospectus,
whether by reason of the ownership or leasing of property or the conduct of
business, except where the failure to be in good standing would not result in a
Material Adverse Effect. Except as otherwise described in the Prospectus, all of
the issued and outstanding capital stock of each Material Subsidiary has been
duly authorized and is validly issued, fully paid and non-assessable and, to the
best actual knowledge of the General Counsel of the Company, is owned by the
Company, directly or through subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity. None of the
outstanding shares of capital stock of any Material Subsidiary was issued in
violation of preemptive or other similar rights of any securityholder of such
Material Subsidiary.
(5) The Underwritten Securities have been duly authorized by the
Company for issuance and sale pursuant to the Underwriting Agreement and the
applicable Terms Agreement. The Underwritten Securities, when issued and
authenticated in the manner provided for in the applicable Indenture and
delivered against payment of the consideration therefor specified in such Terms
Agreement, will constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or other similar laws affecting the enforcement of creditors' rights
generally or by general equitable principles (regardless of whether enforcement
is considered in a proceeding in equity or at law), and except further as
enforcement thereof may be limited by requirements that a claim with respect to
any Debt Securities payable in a foreign or corporate currency (or a foreign or
composite currency judgment in respect of such claim) be converted into U.S.
dollars at a rate of exchange prevailing on a date determined pursuant to
applicable law or by governmental authority to limit, delay or prohibit the
making of payments outside the United States. The Underwritten Securities are in
B-1
<PAGE>
the form contemplated by, and each registered holder thereof is entitled to the
benefits of, the applicable Indenture.
(6) The Indenture has been duly authorized, executed and delivered by
the Company and (assuming due authorization, execution and delivery thereof by
the applicable Trustee) constitutes a valid and binding agreement of the
Company, enforceable against the Company in accordance with its terms, except as
the enforcement thereof may be limited by bankruptcy, insolvency (including,
without limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or other similar laws affecting the enforcement of creditors' rights
generally or by general equitable principles (regardless of whether enforcement
is considered in a proceeding in equity or at law).
(7) The Underwritten Securities being sold pursuant to the applicable
Terms Agreement and the applicable Indenture conform, and any Underlying
Securities, when issued and delivered in accordance with the terms of the
related Underwritten Securities, will conform, in all material respects to the
statements relating thereto contained in the Prospectus and are in substantially
the form filed or incorporated by reference, as the case may be, as an exhibit
to the Registration Statement.
(8) The information in the Prospectus under "Description of the
Indenture and Debt Securities" and [ ], to the extent that it constitutes
matters of law, summaries of legal matters or the Company's charter, bylaws or
legal proceedings, or legal conclusions, has been reviewed by the General
Counsel of the Company and is correct in all material respects.
(9) The execution, delivery and performance of this Underwriting
Agreement, the applicable Terms Agreement and the applicable Indenture and
any other agreement or instrument entered into or issued or to be entered
into or issued by the Company in connection with the transactions
contemplated hereby or thereby or in the Registration Statement and the
Prospectus and the consummation of the transactions contemplated herein and
in the Registration Statement and the Prospectus (including the issuance and
sale of the Underwritten Securities and the use of the proceeds from the sale
of the Underwritten Securities as described under the caption "Use of
Proceeds" as well as the issuance of any Underlying Securities) and
compliance by the Company with its obligations hereunder and thereunder have
been duly authorized by all necessary corporate action and, to the best
actual knowledge of the General Counsel of the Company after due inquiry, (A)
do not and will not, whether with or without the giving of notice or passage
of time or both, conflict with or constitute a breach of, or default or
Repayment Event (as defined below) under, or result in the creation or
imposition of any lien, charge or encumbrance upon any assets, properties or
operations of the Company or any of its subsidiaries pursuant to, any
Agreements and Instruments; or (B) result in any violation of (i) the
provisions of the charter or by-laws of the Company or any of its
subsidiaries or (ii) any applicable law, statute, rule, regulation, judgment,
order, writ or decree of any government, government instrumentality or court,
domestic or foreign, having jurisdiction over the Company or any of its
subsidiaries or any of their assets, properties or operations, except for
such defaults, Repayment Events and violations that would not result in a
Material Adverse Effect. As used herein, a "Repayment Event" means any event
or condition which gives the holder of any note, debenture or other evidence
of indebtedness (or any person acting on such holder's behalf) the right to
require the
B-2
<PAGE>
repurchase, redemption or repayment of all or a portion on such indebtedness by
the Company or any of its subsidiaries.
(10) To the best actual knowledge of the General Counsel of the
Company, and except as disclosed in the Prospectus, there is no action, suit,
proceeding, inquiry or investigation before or brought by any court or
governmental agency or body, domestic or foreign, now pending, or to the
knowledge of the Company threatened, against or affecting the Company or any
of its subsidiaries which is required to be disclosed and the registration
Statement and the Prospectus (other than as stated therein) or which might
reasonably be expected to materially and adversely affect the consummation of
the transactions contemplated under the Prospectus, this Underwriting
Agreement, the applicable Terms Agreement or any applicable Indenture or the
performance by the Company of its obligations hereunder and thereunder.
(11) The Registration Statement (including any Rule 462(b) Registration
Statement) has been declared effective under the 1933 Act. Any required filing
of the Prospectus pursuant to Rule 424(b) has been made in the manner and within
the time period required by Rule 424(b). To the best of our knowledge, no stop
order suspending the effectiveness of the Registration Statement (or such Rule
462(b) Registration Statement) has been issued under the 1933 Act and no
proceedings for that purpose have been initiated or are pending or threatened by
the Commission.
(12) The Registration Statement (including any Rule 462(b) Registration
Statement) and the Prospectus, excluding the documents incorporated by reference
therein, and each amendment or supplement to the Registration Statement
(including any Rule 462(b) Registration Statement) and Prospectus, excluding the
documents incorporated by reference therein, as of their respective effective or
issue dates (other than the financial statements and supporting schedules
included therein or omitted therefrom and each Trustee's Statement of
Eligibility on Form T-1 (the "Form T-1s"), as to which we express no opinion),
complied as to form in all material respects with the requirements of the 1933
Act and the 1933 Act Regulations.
(13) The documents incorporated by reference in the Prospectus (other
than the financial statements and supporting schedules therein or omitted
therefrom, as to which we express no opinion), when they were filed with the
Commission, as the case may be, complied as to form in all material respects
with the requirements of the 1933 Act or the 1934 Act, as applicable, and the
rules and regulations of the Commission thereunder.
(14) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court or governmental
authority or agency, domestic or foreign, is necessary or required for the due
authorization, execution or delivery by the Company of the Underwriting
Agreement or the applicable Terms Agreement or for the performance by the
Company of the transactions contemplated under the Prospectus, the Underwriting
Agreement, such Terms Agreement or the applicable Indenture, other than under
the 1933 Act, the 1933 Act Regulations, the 1939 Act and the 1939 Act
Regulations, which have already been made, obtained or rendered, as applicable.
(15) The applicable Indenture has been duly qualified under the 1939
Act.
B-3
<PAGE>
(16) The Company is not, and upon the issuance and sale of the
Underwritten Securities as herein contemplated and the application of the net
proceeds therefrom as described in the Prospectus will not be, an "investment
company" within the meaning of the Investment Company Act of 1940, as amended
(the "1940 Act").
Nothing has come to the attention of the General Counsel of the Company
that would lead her to believe that the Registration Statement (including any
Rule 462(b) Registration Statement) or any post-effective amendment thereto
(except for financial statements and supporting schedules and other financial
data included therein or omitted therefrom and for the Form T-1s, as to which we
make no statement), at the time the Registration Statement (including any Rule
462(b) Registration Statement) or any post-effective amendment thereto
(including the filing of the Company's Annual Report on Form 10-K with the
Commission) became effective or at the date of the applicable Terms Agreement,
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading or that the Prospectus or any amendment or supplement thereto (in
each case except for the financial statements and other information of a,
accounting or financial nature included therein, as to which we express no
view), at the time the Prospectus was issued, at the time any such amended or
supplemented prospectus was issued or at the Closing Time, included or includes
an untrue statement of a material fact or omitted or omits to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
In rendering such opinion, such counsel may rely, as to matters of fact
(but not as to legal conclusions), to the extent they deem proper, on
certificates of responsible officers of the Company and public officials. Such
opinion shall not state that it is to be governed or qualified by, or that it is
otherwise subject to, any treatise, written policy or other document relating to
legal opinions, including, without limitation, the Legal Opinion Accord of the
ABA Section of Business Law (1991).
B-4
<PAGE>
Annex I
[FORM OF ACCOUNTANTS' COMFORT LETTER PURSUANT TO SECTION 5(e)]
Annex I-1
<PAGE>
Schedule A
[Octel Communications Corp.
Avaya International LLC]
Annex I-2
</TEXT>
</DOCUMENT>