ex1020uksharechargeuk







Exhibit 10.20    





 







ii      CONTENTS   Clause Page   1. INTERPRETATION .............................................................................................. 1   2. GUARANTEE ....................................................................................................... 5   3. CREATION OF SECURITY ................................................................................. 7   4. REPRESENTATIONS AND WARRANTIES ...................................................... 8   5. RESTRICTIONS ON DEALINGS ........................................................................ 9   6. COVENANTS ....................................................................................................... 9   7. WHEN SECURITY BECOMES ENFORCEABLE ............................................ 11   8. ENFORCEMENT OF SECURITY...................................................................... 12   9. RECEIVER .......................................................................................................... 13   10. POWERS OF RECEIVER ................................................................................... 14   11. APPLICATION OF PROCEEDS ........................................................................ 16   12. TAXES, EXPENSES AND INDEMNITY .......................................................... 16   13. DELEGATION .................................................................................................... 17   14. FURTHER ASSURANCES ................................................................................ 17   15. POWER OF ATTORNEY ................................................................................... 18   16. PRESERVATION OF SECURITY ..................................................................... 18   17. MISCELLANEOUS ............................................................................................ 21   18. RELEASE  ............................................................................................................ 22   19. COUNTERPARTS .............................................................................................. 22   20. NOTICES  ............................................................................................................ 23   21. GOVERNING LAW ............................................................................................ 24   22. ENFORCEMENT ................................................................................................ 24   SCHEDULE 1 CHARGED SHARES ........................................................................ 26           





 







    





 







2      Receiver means an administrative receiver, a receiver and manager or a receiver, in each   case, appointed under this Deed and that term will include any appointee under a joint   and/or several appointment.   Related Rights means in relation to any Charged Share:   (i) the proceeds of sale of the whole or any part of that asset or any monies   and proceeds paid or payable in respect of that asset;   (ii) all rights under any licence, agreement for sale, option or lease in   respect of that asset; and   (iii) all rights, benefits, claims, contracts, warranties, remedies, security   indemnities or covenants for title in respect of that asset.   Secured Obligations means all advances to, and debts, liabilities, obligations, covenants   and duties of, any Loan Party arising under any Loan Document or otherwise with   respect to any Loan or Letter of Credit, whether direct or indirect (including those   acquired by assumption), absolute or contingent, due or to become due, now existing or   hereafter arising and including interest and fees that accrue after the commencement by   or against any Loan Party of any proceeding under any Debtor Relief Laws naming such   person as the debtor in such proceeding, regardless of whether such interest and fees are   allowed claims in such proceeding.   Security means any Security Interest created, evidenced or conferred by or under this   Deed.   Security Assets means any and all assets of the Chargor that are the subject of this   Security.   Security Interest means any mortgage, pledge, lien, charge (fixed or floating),   assignment, hypothecation, set-off or trust arrangement for the purpose of creating   security, reservation of title or security interest or any other agreement or arrangement   having a similar effect.   Security Period means the period beginning on the date of this Deed and ending on the   Discharge Date.   Security Trust Deed means the Security Trust Deed dated on or about the date of this   Deed and entered into between, amongst others, the Administrative Agent and Avaya   UK.   1.2 Construction   In this Deed (including the Recitals):   (a) capitalised terms defined in the Credit Agreement have, unless expressly   defined in this Deed, the same meaning in this Deed.   (b) an agreement includes any legally binding arrangement, agreement, contract,   deed or instrument (in each case whether oral or written);   (c) an amendment includes any amendment, supplement, variation, waiver,   novation, modification, replacement or restatement (however fundamental) and   amend and amended shall be construed accordingly;     





 







3      (d) assets includes properties, assets, businesses, undertakings, revenues and rights   of every kind (including uncalled share capital), present or future, actual or   contingent, and any interest in any of the above;   (e) a consent includes an authorisation, permit, approval, consent, exemption,   licence, order, filing, registration, recording, notarisation, permission or waiver;   (f) references to an Event of Default being continuing means that such Event of   Default has occurred or arisen and has not been expressly remedied or has not   been expressly waived in writing by the Administrative Agent or the applicable   Lenders, in each case in accordance with, and to the extent permitted by, the   terms of the Credit Agreement;   (g) a disposal includes any sale, transfer, grant, lease, licence or other disposal,   whether voluntary or involuntary and dispose will be construed accordingly;   (h) including means including without limitation and includes and included shall   be construed accordingly;   (i) indebtedness includes any obligation (whether incurred as principal, guarantor   or surety and whether present or future, actual or contingent) for the payment or   repayment of money;   (j) losses includes losses, actions, damages, payments, claims, proceedings, costs,   demands, expenses (including legal and other fees) and liabilities of any kind   and loss shall be construed accordingly;   (k) a person includes any individual, trust, firm, fund, company, corporation,   partnership, joint venture, government, state or agency of a state or any   undertaking or other association (whether or not having separate legal   personality) or any two or more of the foregoing; and   (l) a regulation includes any regulation, rule, official directive, request or guideline   (whether or not having the force of law but if not having the force of law   compliance with which is customary) of any governmental or supranational   body, agency, department or regulatory, self-regulatory or other authority or   organisation.   (m) In this Deed, unless a contrary intention appears:   (i) a reference to any person includes a reference to that person’s permitted   successors, assignees and transferees and, in the case of the   Administrative Agent, any person for the time being appointed as   Administrative Agent in accordance with the Loan Documents, and in   the case of the Administrative Agent and any Receiver, any Delegate of   the Administrative Agent or Receiver (as appropriate);   (ii) references to Clauses, Subclauses and Schedules are references to,   respectively, clauses and subclauses of and schedules to this Deed and   references to this Deed include its schedules;   (iii) a reference to (or to any specified provision of) any agreement is to that   agreement (or that provision) as amended, restated or otherwise   modified from time to time;     





 







4      (iv) a reference to a statute, statutory instrument or provision of law is to that   statute, statutory instrument or provision of law, as it may be applied,   amended or re-enacted from time to time;   (v) the index to and the headings in this Deed are for convenience only and   are to be ignored in construing this Deed;    (vi) references to “with full title guarantee” are to be construed as provided   for in the Law of Property (Miscellaneous Provisions) Act 1994; and   (vii) words imparting the singular include the plural and vice versa.   (n) The term:   certificated has the meaning given to it in the Uncertificated Securities   Regulations 2001; and   clearance system means a person whose business is or includes the provision of   clearance services or security accounts or any nominee or depository for that   person.   (o) Any covenant of the Chargor under this Deed (other than a payment obligation)   remains in force during the Security Period and is given for the benefit of each   Secured Party.   (p) The terms of the other Loan Documents and of any side letters between any   Parties in relation to any Loan Document (as the case may be) are incorporated   in this Deed to the extent required to ensure that any purported disposition of any   freehold or leasehold property contained in this Deed is a valid disposition in   accordance with section 2(1) of the Law of Property (Miscellaneous Provisions)   Act 1989.   (q) This Deed shall continue to be effective, or be reinstated, as the case may be, if at   any time any payment (or any part thereof) of any of the Secured Obligations is   avoided, rescinded or must otherwise be restored or returned by the   Administrative Agent or any other Secured Party, as though such payment had   not been made.   (r) Unless the context otherwise requires, a reference to a Security Asset or any type   or description of a Security Asset includes:   (i) any part of that Security Asset; and   (ii) any present and future assets of that type.     (s) A reference to a Charged Share includes:   (i) any dividend, interest or other distribution paid or payable;   (ii) any right, money or property accruing, derived, incidental or offered at   any time by way of redemption, substitution, exchange, bonus or   preference, under option rights or otherwise;   (iii) any right against any clearance system;    (iv) any Related Rights; and     





 







5      (v) any right under any custodian or other agreement,   in relation to that Charged Share.   1.3 Third Party Rights   (a) Unless expressly provided to the contrary in this Deed, a person who is not a   party to this Deed may not enforce any of its terms under the Contracts (Rights   of Third Parties) Act 1999.   (b) Notwithstanding any term of this Deed, the consent of any third party is not   required to rescind, vary, amend or terminate this Deed at any time.   2. GUARANTEE   2.1 Guarantee    The Chargor irrevocably and unconditionally:   (a) guarantees as principal obligor to each Secured Party due and punctual   performance by each Loan Party of all of the Secured Obligations now or in the   future due, owing or incurred by such Loan Party;    (b) undertakes with each Secured Party that whenever another Loan Party does not   pay or discharge any Secured Obligation now or in the future due, owing or   incurred by that Loan Party, it shall immediately on the Administrative Agent’s   written demand pay or discharge such Secured Obligation as if it was the   principal obligor; and   (c) indemnifies each Secured Party immediately on written demand against any cost,   loss or liability suffered by the Administrative Agent or other Secured Party if   any obligation guaranteed by it is or becomes unenforceable, invalid or illegal.    The amount of the cost, loss or liability shall be equal to the amount which the   Administrative Agent or such other Secured Party would otherwise have been   entitled to recover.   2.2 Continuing Guarantee   This guarantee is a continuing guarantee and will extend to the ultimate balance of sums   payable by any Loan Party under the Loan Documents, regardless of any intermediate   payment or discharge in whole or in part.   2.3 Reinstatement   If any payment by a Loan Party or any discharge given by the Administrative Agent or   other Secured Party (whether in respect of the obligations of any Loan Party or any   security for those obligations or otherwise) is avoided or reduced as a result of   insolvency or any similar event:   (a) the liability of the Chargor shall continue as if the payment, discharge,   avoidance or reduction had not occurred; and   (b) the Administrative Agent and each other Secured Party shall be entitled to   recover the value or amount of that security or payment from the Chargor, as if   the payment, discharge, avoidance or reduction had not occurred.     





 







6      2.4 Waiver of defences   Without prejudice to Clause 18 (Release), the obligations of the Chargor under this   Clause (Guarantee) will not be affected by an act, omission, matter or thing which, but   for this Clause (Guarantee), would reduce, release or prejudice any of its obligations   under this Clause (Guarantee) (without limitation and whether or not known to it or any   Secured Party) including:   (a) any time, waiver or consent granted to, or composition with, any other person;   (b) the release of any other person under the terms of any composition or   arrangement with any creditor of any member of the Group;   (c) the taking, variation, compromise, exchange, renewal or release of, or refusal or   neglect to perfect, take up or enforce, any rights against, or security over assets   of, any other person or any non-presentation or non-observance of any formality   or other requirement in respect of any instrument or any failure to realise the full   value of any security;   (d) any incapacity or lack of power, authority or legal personality of or dissolution   or change in the members or status of any other person;   (e) any amendment, novation, supplement, extension (whether of maturity or   otherwise) or restatement (in each case, however fundamental and of whatsoever   nature) or replacement of a Loan Document or any other document or security;   (f) any unenforceability, illegality or invalidity of any obligation of any person   under any Loan Document or any other document or security; or   (g) any insolvency or similar proceedings.   2.5 Demands   (a) The making of one demand under Clause 2.1 (Guarantee) shall not preclude the   Administrative Agent from making any further demands.    (b) Any delay of the Administrative Agent in making a demand under Clause 2.1   (Guarantee) shall not be treated as a waiver of its rights to make such demand.   2.6 Chargor Intent   Without prejudice to the generality of Clause 2.4 (Waiver of defences), the Chargor   expressly confirms that it intends that this guarantee shall extend from time to time to   any (however fundamental) variation, increase, extension or addition of or to any of the   Loan Documents and/or any facility or amount made available under any of the Loan   Documents for the purposes of or in connection with any of the following: business   acquisitions of any nature; increasing working capital; enabling investor distributions to   be made; carrying out restructurings; refinancing existing facilities; refinancing any   other indebtedness; making facilities available to new borrowers; any other variation or   extension of the purposes for which any such facility or amount might be made available   from time to time; and any fees, costs and/or expenses associated with any of the   foregoing.     





 







7      2.7 Immediate recourse   The Chargor waives any right it may have of first requiring the Administrative Agent or   any other Secured Party (or any trustee or agent on its behalf) to proceed against or   enforce any other rights or security or claim payment from any person before claiming   from the Chargor under this Clause (Guarantee).  This waiver applies irrespective of any   law or any provision of a Loan Document to the contrary.   2.8 Deferral of the Chargor's rights   (a) Until all amounts which may be or become payable by the Loan Parties under or   in connection with the Loan Documents have been paid in full and unless the   Administrative Agent otherwise directs (in which case it shall take such action   as it is directed), the Chargor shall not exercise any rights which it may have by   reason of performance by it of its obligations under the Loan Documents:   (i) to be indemnified by another Loan Party;   (ii) to claim any contribution from any other person that has granted a   guarantee or security in respect of any Loan Party's obligations under   the Loan Documents; and/or   (iii) to take the benefit (in whole or in part and whether by way of   subrogation or otherwise) of any rights of any Secured Party under the   Loan Documents or of any other guarantee or security taken pursuant to,   or in connection with, the Loan Documents by any Secured Party.   (b) If the Chargor receives any benefit, payment or distribution in relation to such   rights it shall hold that benefit, payment or distribution to the extent necessary to   enable all amounts which may be or become payable to the Secured Parties by   the Loan Parties under or in connection with the Loan Documents to be repaid in   full on trust for the Secured Parties and shall promptly pay or transfer the same   to the Administrative Agent or as the Administrative Agent may direct.    2.9 Additional security   This guarantee is in addition to and is not in any way prejudiced by any other guarantee   or security now or subsequently held by any Secured Party.   2.10 Credit Agreement   The provisions of sections 2.08(b) (Interest) (with respect to Default Rate), 2.14   (Incremental Credit Extensions) and 3.01 (Taxes) of the Credit Agreement are hereby   incorporated, mutatis mutandi, and shall apply to this Deed, the Chargor, the Lenders   and the Administrative Agent as if set forth herein.   3. CREATION OF SECURITY   3.1 General   (a) All this Security:   (i) is created in favour of the Administrative Agent;   (ii) is security for the payment, discharge and performance of all the   Secured Obligations; and     





 







8      (iii) is made with full title guarantee in accordance with the Law of Property   (Miscellaneous Provisions) Act 1994.   (b) The Chargor hereby acknowledges that all assets, right, interests and benefits   which are now or in the future granted to the Administrative Agent pursuant to   this Clause or otherwise mortgaged, charged, assigned or otherwise granted to it   under this Deed (or any other document in connection herewith) and all other   rights, powers and discretions granted to or conferred upon the Administrative   Agent under this Deed or the other Loan Documents (or any other document in   connection therewith) shall be held by the Administrative Agent on trust for the   Secured Parties from time to time in accordance with the provisions of the   Security Trust Deed.   (c) The fact that no or incomplete details of any Security Asset are inserted in   Schedule 1 (Charged Shares) does not affect the validity or enforceability of this   Security.   3.2 Charged Shares   The Chargor charges by way of a first fixed charge its interest in the Charged Shares   including any Charged Shares specified in Schedule 1 (Charged Shares).   4. REPRESENTATIONS AND WARRANTIES   4.1 Nature of security   The Chargor represents and warrants to each Secured Party that:   (a) this Deed creates those Security Interests it purports to create and is not liable to   be avoided or otherwise set aside on its liquidation or administration or   otherwise;   (b) all actions and consents, including all filings, notices, registrations and   recordings necessary for the exercise by the Administrative Agent of the voting   or other rights provided for in this Deed or the exercise of remedies in respect of   the Security Assets have been made or will be obtained within periods required   to perfect the Security as against any third party.   4.2 Charged Shares   The Chargor represents and warrants to each Secured Party that:   (a) the Charged Shares are duly authorised, validly issued and fully paid;    (b) the Charged Shares are not subject to any Security Interest, any option to   purchase or similar right;    (c) it is the sole legal and beneficial owner of the Charged Shares (save for any   Charged Shares acquired by or issued to the Chargor after the date hereof that   are held by any nominee on its behalf or any Charged Shares transferred to the   Administrative Agent or its nominee pursuant to this Deed);    (d) the constitutional documents of the Charged Company do not restrict or inhibit   any transfer of those shares on creation or enforcement of this Security; and     





 







9      (e) there are no agreements in force which provide for the issue or allotment of, or   grant any person the right to call for the issue or allotment of, any share or loan   capital of any Charged Company (including any option or right of pre-emption   or conversion).   4.3 Times for making representations and warranties   (a) The representations and warranties set out in this Deed (including in this Clause)   are made by the Chargor on the date of this Deed.   (b) Each representation and warranty under this Deed is deemed to be repeated by   the Chargor on the date of each Credit Extension under a Loan Document (other   than any Protective Advance and any conversion of Loans to the other Type or a   continuation of Eurocurrency Rate Loans, CDOR Loans or EURIBOR Loans).   (c) When a representation and warranty is deemed to be repeated, it is deemed to be   made by reference to the circumstances existing at the time of repetition   provided that, to the extent that any representation and warranty specifically   refers to an earlier date, it shall be made by reference to such earlier date.   5. RESTRICTIONS ON DEALINGS   The Chargor shall not:   (a) create or permit to subsist any Security Interest on any of its assets; or   (b) either in a single transaction or in a series of transactions and whether related or   not and whether voluntarily or involuntarily sell, lease, transfer, redeem or   otherwise dispose of all or any part of its assets,   unless permitted by the Credit Agreement.   6. COVENANTS   6.1 Certificated Charged Shares   (a) The Chargor must:   (i) deposit with the Administrative Agent, or as the Administrative Agent   may direct, any bearer instrument, share certificate or other document of   title or evidence of ownership in relation to any Charged Share   immediately in respect of any Charged Share subject to this Security on   the date of this Deed and thereafter as soon as practicable (and in any   event, within 45 days after the date of acquisition thereof or such longer   period as to which the Administrative Agent may agree in its reasonable   discretion) following the acquisition by, or the issue to, the Chargor of   any certificated Charged Share (unless the same is required for   registering any transfer, in which case the Chargor must deposit the   same immediately after such registration is completed); and   (ii) as soon as practicable (and in any event within 10 Business Days' of any   request) take any action and execute and deliver to the Administrative   Agent any share transfer or other document which may reasonably be   requested by the Administrative Agent in order to enable the transferee   to be registered as the owner or otherwise obtain (whilst an Enforcement     





 







10      Event exists) a legal title to that Charged Share, which includes   delivering all stock transfer forms (executed and left undated) in favour   of the Administrative Agent or any of its nominees as transferee or, if   the Administrative Agent so directs, with the transferee left blank.   (b) The Administrative Agent may, whilst an Enforcement Event exists, complete   the instruments of transfer on behalf of the Chargor in favour of itself or such   other person as it shall select.   6.2 Calls   (a) The Chargor must pay all calls and other payments due and payable in respect of   any of the Charged Shares.   (b) If the Chargor fails to do so, the Administrative Agent may (at its discretion) pay   those calls or other payments on behalf of the Chargor. The Chargor must within   10 Business Days of written request reimburse the Administrative Agent for any   payment made by the Administrative Agent under this Subclause and, pending   reimbursement, that payment will constitute part of the Secured Obligations.   6.3 Other obligations in respect of Charged Shares   (a) It is acknowledged and agreed that notwithstanding anything to the contrary   contained in this Deed, the Chargor shall remain liable to observe and perform   all of the conditions and obligations assumed by it in respect of any of the   Charged Shares.   (b) No Secured Party will be required in any manner to:   (i) perform or fulfil any obligation of the Chargor;   (ii) make any payment;   (iii) make any enquiry as to the nature or sufficiency of any payment   received by it or the Chargor;    (iv) present or file any claim or take any other action to collect or enforce the   payment of any amount; or   (v) take any action in connection with the taking up of any (or any offer of   any) stocks, shares, rights, monies or other property paid, distributed,   accruing or offered at any time by way of interest, dividend, redemption,   bonus, rights, preference, option, warrant or otherwise,   in respect of any Charged Share.   6.4 Voting rights   (a) Unless an Event of Default is continuing, the Chargor may continue to exercise   the voting rights, powers and other rights in respect of the Charged Shares for   any purpose consistent with the terms of this Deed, the Credit Agreement and   the other Loan Documents provided that such rights and powers shall not be   exercised in any manner, except as is permitted under the Credit Agreement, that   would materially and adversely affect the rights and remedies of the   Administrative Agent or the other Secured Parties under this Deed, the Credit     





 







11      Agreement or any other Loan Document or the ability of the Secured Parties to   exercise the same.   (b) Subject to the terms of the Credit Agreement, unless an Event of Default has   occurred and is continuing, and the Administrative Agent shall have notified the   Chargor of the suspension of the rights of the Chargor under this Clause, all   dividends or other income or distributions paid or payable in relation to any   Charged Shares must be paid to the Chargor. To achieve this:   (i) the Administrative Agent or its nominee will promptly execute any   dividend mandate necessary to ensure that payment is made direct to the   Chargor; or   (ii) if payment is made directly to the Administrative Agent (or its nominee)   at a time when an Event of Default is not continuing, the Administrative   Agent (or that nominee) will promptly pay that amount to the Chargor.   (c) Whilst an Enforcement Event exists, and following notice to the Chargor that the   rights of the Chargor under this Clause 6.4 (Voting rights) are suspended, the   Administrative Agent or its nominee may exercise or refrain from exercising:   (i) any voting rights; and   (ii) any other powers or rights which maybe exercised by the legal or   beneficial owner of any Charged Share, any person who is the holder of   any Charged Share or otherwise,   in each case, in the name of the Chargor, the registered holder or otherwise and   without any further consent or authority on the part of the Chargor and   irrespective of any direction given by the Chargor.   (d) To the extent that the Charged Shares remain registered in the names of the   Chargor, the Chargor irrevocably appoints the Administrative Agent or its   nominee as its proxy to exercise all voting rights in respect of those Charged   Shares whilst an Event of Default is continuing.   (e) The Chargor must indemnify the Administrative Agent against any loss or   liability incurred by the Administrative Agent as a consequence of the   Administrative Agent acting in respect of the Charged Shares on the direction of   the Chargor, save to the extent that such loss or liability resulted from the gross   negligence, bad faith or wilful misconduct of, or breach of any obligation under   any Loan Document by, the Administrative Agent, as determined by the final,   non-appealable judgment of a court of competent jurisdiction.   7. WHEN SECURITY BECOMES ENFORCEABLE   7.1 Timing   This Security will become immediately enforceable if an Event of Default is continuing.   7.2 Enforcement   After this Security has become enforceable in accordance with Clause 7.1 (Timing), the   Administrative Agent may in its absolute discretion enforce all or any part of this   Security (1) in any manner it sees fit in accordance with the Loan Documents or (2) as     





 







12      the Required Lenders or all of the Lenders, as applicable, direct in accordance with the   Credit Agreement.   8. ENFORCEMENT OF SECURITY   8.1 General   (a) The power of sale and any other power conferred on a mortgagee by law   (including under section 101 of the Act) as varied or amended by this Deed will   be immediately exercisable at any time after this Security has become   enforceable in accordance with Clause 7.1 (Timing).   (b) For the purposes of all powers implied by law, the Secured Obligations are   deemed to have become due and payable on the date of this Deed.   (c) Any restriction imposed by law on the power of sale (including under section   103 of the Act) or the right of a mortgagee to consolidate mortgages (including   under section 93 of the Act) does not apply to this Security or to the exercise by   the Administrative Agent of its right to consolidate all or any of the Security   with any other security in existence at the time or to its power of sale, which   powers may be exercised by the Administrative Agent without notice to the   Chargor on or at any time after this Security has become enforceable.   8.2 No liability as mortgagee in possession   Neither the Administrative Agent nor any Receiver will be liable, by reason of entering   into possession of a Security Asset:   (a) to account as mortgagee in possession or for any loss on realisation; or   (b) for any neglect, default or omission in connection with a Security Asset for   which a mortgagee in possession might otherwise be liable, save as regards the   Administrative Agent, to the extent such loss or liability resulted from the gross   negligence, bad faith or wilful misconduct of the Administrative Agent, as   determined by the final, non-appealable judgment of a court of competent   jurisdiction.   8.3 Privileges   Each Receiver and the Administrative Agent is entitled to all the rights, powers,   privileges and immunities conferred by law (including the Act) on mortgagees and   receivers duly appointed under any law (including the Act).   8.4 Protection of third parties   (a) No person (including a purchaser) dealing with the Administrative Agent or a   Receiver or its or his agents will be concerned to enquire:   (i) whether the Secured Obligations have become payable;   (ii) whether any power which the Administrative Agent or a Receiver is   purporting to exercise has become exercisable or is being properly   exercised;   (iii) whether any money remains due under the Loan Documents; or     





 







13      (iv) how any money paid to the Administrative Agent or to that Receiver is   to be applied.   (b) The receipt of the Administrative Agent or any Receiver shall be conclusive   discharge to a purchaser and, in making any sale or disposal of any of the   Security Assets or making any acquisition, the Administrative Agent or any   Receiver may do so for such consideration, in such manner and on such terms as   it thinks fit.   8.5 Redemption of prior mortgages   (a) At any time after this Security has become enforceable in accordance with   Clause 7.1 (Timing), the Administrative Agent may:   (i) redeem any prior Security Interest against any Security Asset; and/or   (ii) procure the transfer of that Security Interest to itself; and/or   (iii) settle and pass the accounts of the prior mortgagee, chargee or   encumbrancer; any accounts so settled and passed will be, in the   absence of manifest error, conclusive and binding on the Chargor.   (b) The Chargor must pay to the Administrative Agent, promptly following receipt   by the Chargor of an invoice relating thereto setting forth such costs and   expenses in reasonable detail, the documented out-of-pocket costs and expenses   incurred by the Administrative Agent in connection with any such redemption   and/or transfer, including the payment of any principal or interest and, pending   reimbursement, that payment will constitute part of the Secured Obligations.    8.6 Contingencies   If this Security is enforced at a time when no amount is due under the Loan Documents   but at a time when amounts may or will become due, the Administrative Agent (or the   Receiver) may pay the proceeds of any recoveries effected by it into such number of   suspense accounts as it considers appropriate.   9. RECEIVER   9.1 Appointment of Receiver   (a) Except as provided below, the Administrative Agent may, without prior notice   to the Chargor, appoint any one or more persons to be a Receiver of all or any   part of the Security Assets if:   (i) this Security has become enforceable in accordance with Clause 7.1   (Timing); or   (ii) the Chargor so requests the Administrative Agent in writing at any time.   (b) Any appointment under paragraph (a) above may be by deed, under seal or in   writing under its hand.   (c) Except as provided below, any restriction imposed by law on the right of a   mortgagee to appoint a Receiver (including under section 109(1) of the Act)   does not apply to this Deed.     





 







14      (d) The Administrative Agent is not entitled to appoint a Receiver solely as a result   of the obtaining of a moratorium (or anything done with a view to obtaining a   moratorium) under the Insolvency Act 2000 except with the leave of the court.   9.2 Removal   The Administrative Agent may by writing under its hand (subject to any requirement for   an order of the court in the case of an administrative receiver) remove any Receiver   appointed by it and may, whenever it thinks fit, appoint a new Receiver in the place of   any Receiver whose appointment may for any reason have terminated.   9.3 Remuneration   The Administrative Agent may fix the remuneration of any Receiver appointed by it and   any maximum rate imposed by any law (including under section 109(6) of the Act) will   not apply.   9.4 Agent of the Chargor   (a) A Receiver will be deemed to be the agent of the Chargor for all purposes and   accordingly will be deemed to be in the same position as a Receiver duly   appointed by a mortgagee under the Act. The Chargor is solely responsible for   the contracts, engagements, acts, omissions, defaults and losses of, and   remuneration payable to, a Receiver and for liabilities incurred by a Receiver.   (b) No Secured Party will incur any liability (either to the Chargor or to any other   person) by reason of the appointment of a Receiver or for any other reason.   9.5 Relationship with Administrative Agent   To the fullest extent allowed by law, any right, power or discretion conferred by this   Deed (either expressly or impliedly) or by law on a Receiver may after this Security   becomes enforceable in accordance with Clause 7.1 (Timing) be exercised by the   Administrative Agent in relation to any Security Asset without first appointing a   Receiver or notwithstanding the appointment of a Receiver.   10. POWERS OF RECEIVER   10.1 General   (a) A Receiver has all the rights, powers and discretions set out below in this Clause   in addition to those conferred on it by any law. This includes:   (i) in the case of an administrative receiver, all the rights, powers and   discretions conferred on an administrative receiver under the Insolvency   Act 1986; and   (ii) otherwise, all the rights, powers and discretions conferred on a receiver   (or a receiver and manager) under the Act and the Insolvency Act 1986.   (b) If there is more than one Receiver holding office at the same time; each Receiver   may (unless the document appointing him states otherwise) exercise all the   powers conferred on a Receiver under this Deed individually and to the   exclusion of any other Receiver.     





 







15      10.2 Possession   A Receiver may take immediate possession of, get in and collect any Security Asset   (including income accrued from time to time).   10.3 Calls   A Receiver may make, or require the directors of the Chargor to make, calls upon the   holders of share capital of the Chargor which remains uncalled and to enforce payment   of such calls and any previous unpaid calls by taking proceedings.    10.4 Borrow money   A Receiver may raise and borrow money either unsecured or on the security of any   Security Asset either in priority to this Security or otherwise and generally on any terms   and for whatever purpose which he thinks fit.   10.5 Redemption of security   A Receiver may redeem, discharge or compromise any security whether or not having   priority to all or any part of the security constituted pursuant to this Deed.    10.6 Covenants, guarantees and indemnities   A Receiver may enter into such bonds, covenants, guarantees, commitments,   indemnities and other obligations or liabilities as he shall think fit and make all payments   needed to effect, maintain or satisfy such obligations or liabilities.   10.7 Sale of assets   (a) A Receiver may sell, exchange, convert into money and realise any Security   Asset by public auction or private contract and generally in any manner and on   any terms which he thinks fit.   (b) The consideration for any such transaction may consist of cash, debentures or   other obligations, shares, stock or other valuable consideration and any such   consideration may be payable in a lump sum or by instalments spread over any   period which he thinks fit.   10.8 Contracts   A Receiver may enter into any contract or arrangement and perform, repudiate, rescind   or vary any such contract.    10.9 Compromise   A Receiver may settle, adjust, refer to arbitration, compromise and arrange any claim,   account, dispute, question or demand relating in any way to any Security Asset.   10.10 Legal actions   A Receiver may bring, prosecute, enforce, defend and abandon any action, suit or   proceedings in relation to any Security Asset which he thinks fit.     





 







16      10.11 Receipts   A Receiver may give a valid receipt for any moneys and execute any assurance or thing   which may be proper or desirable for realising any Security Asset.   10.12 Subsidiaries   A Receiver may form a Subsidiary of the Chargor and transfer to that Subsidiary any   Security Asset.   10.13 Delegation   A Receiver may delegate his powers in accordance with this Deed.    10.14 Protection of assets   A Receiver may do any act which the Chargor might do in the ordinary conduct of its   business to protect or improve any Security Asset, in each case as he thinks fit.   10.15 Other powers    A Receiver may:   (a) do all other acts and things which he may consider desirable or necessary for   realising any Security Asset or incidental or conducive to any of the rights,   powers or discretions conferred on a Receiver under or by virtue of this Deed or   by law;   (b) exercise in relation to any Security Asset all the powers, authorities and things   which he would be capable of exercising if he were the absolute beneficial   owner of that Security Asset; and   (c) use the name of the Chargor for any of the above purposes.   11. APPLICATION OF PROCEEDS   (a) All moneys from time to time received or recovered by the Administrative   Agent or any Receiver in connection with the realisation or enforcement of all or   any part of the Security shall be held by the Administrative Agent on trust for the   Secured Parties from time to time in accordance with the provisions of the   Security Trust Deed to apply them in accordance with the terms of the Security   Trust Deed and the Credit Agreement.   (b) This Clause does not prejudice the right of any Secured Party to recover any   shortfall from a Loan Party.   12. TAXES, EXPENSES AND INDEMNITY   (a) The Chargor must pay, or on an indemnity basis reimburse, any and all amounts   for which it is liable in accordance with, and solely to the extent required by,   sections 2.08 (Interest), 3.01 (Taxes), 10.4 (Attorney Costs and Expenses), 10.05   (Indemnification by the Borrowers) and 10.19 (Judgment Currency) of the   Credit Agreement.    (b) Any amount due but unpaid shall carry interest at the rate and on the basis   mentioned in Clause 17.1 (Interest).     





 







17      13. DELEGATION   13.1 Power of Attorney   The Administrative Agent or any Receiver may delegate by power of attorney or in any   other manner to any person any right, power or discretion exercisable by it under this   Deed which delegation shall not preclude either the subsequent exercise, any subsequent   delegation or any revocation of such right, power or discretion by the Administrative   Agent or any Receiver itself.   13.2 Terms   Any such delegation may be made upon any terms (including power to sub-delegate)   which the Administrative Agent or any Receiver may think fit.   13.3 Liability   Neither the Administrative Agent nor any Receiver will be in any way liable or   responsible to the Chargor for any loss or liability arising from any act, default, omission   or misconduct on the part of any Delegate or sub-delegate, save as regards the   Administrative Agent, to the extent such loss or liability resulted from the gross   negligence, bad faith or wilful misconduct of the Administrative Agent, as determined   by the final, non-appealable judgment of a court of competent jurisdiction.   13.4 Discretion   Any liberty or power which may be exercised or any determination which may be made   under this Deed by the Administrative Agent or any Receiver may be exercised or made   in its absolute and unfettered discretion without any obligation to give reasons.    14. FURTHER ASSURANCES   The Chargor must, at its own expense, take whatever action the .Administrative Agent or   a Receiver may reasonably require for:   (a) creating, perfecting or protecting any security intended to be created by or   pursuant to this Deed (including procuring that any third party creates a Security   Interest in favour of the Administrative Agent over any Security Asset to which   it holds the legal title as trustee, nominee or agent);   (b) following an Enforcement Event facilitating the realisation of any Security   Asset;   (c) facilitating the exercise of any right, power or discretion exercisable by the   Administrative Agent or any Receiver in respect of any Security Asset; or   (d) creating and perfecting security in favour of the Administrative Agent   (equivalent to the security intended to be created by this Deed) over any assets of   the Chargor intended to be the subject of this Deed.    This includes:   (i) the re-execution of this Deed;     





 







18      (ii) the execution of any legal mortgage, charge, transfer, conveyance,   assignment or assurance of any property, whether to the Administrative   Agent or to its nominee; and   (iii) the giving of any notice, order or direction and the making of any filing   or registration,   which, in any such case, the Administrative Agent may think expedient (acting   reasonably).   15. POWER OF ATTORNEY   The Chargor, by way of security, irrevocably appoints the Administrative Agent and   each Receiver to be its attorney to take any action which the Chargor is obliged to take   under this Deed but which it has failed to take when required to do so under this Deed   within 5 Business Days of request by the Administrative Agent. The Chargor ratifies and   confirms whatever any attorney does or purports to do under its appointment under this   Clause.   16. PRESERVATION OF SECURITY   16.1 Continuing security   This Security is a continuing security and will extend to the ultimate balance of the   Secured Obligations, regardless of any intermediate payment or discharge in whole or in   part.   16.2 Reinstatement   (a) If any discharge (whether in respect of the obligations of the Chargor or any   security for those obligations or otherwise) or arrangement is made in whole or   in part on the faith of any payment, security or other disposition which is   avoided or must be restored on insolvency, liquidation, administration or   otherwise without limitation, the liability of the Chargor under this Deed will   continue or be reinstated as if the discharge or arrangement had not occurred.   (b) Each Secured Party may concede or compromise any claim that any payment,   security or other disposition is liable to avoidance or restoration.   16.3 Waiver of defences   Without prejudice to Clause 18 (Release), the obligations of the Chargor under this Deed   will not be affected by any act, omission or thing which, but for this provision, would   reduce, release or prejudice any of its obligations under this Deed (whether or not known   to it or any Secured Party). This includes:   (a) any time, waiver or consent granted to, or composition with, any person;   (b) any release of any other person under the terms of any composition or   arrangement;   (c) the taking, variation, compromise, exchange, renewal or release of, or refusal or   neglect to perfect, take up or enforce, any rights against, or security over assets   of, any other person;     





 







19      (d) any non-presentation or non-observance of any formality or other requirement in   respect of any instrument or any failure to realise the full value of any security;   (e) any incapacity lack of power, authority or legal personality of or dissolution or   change in the members or status of any person;   (f) any amendment (however fundamental) or replacement of a Loan Document or   any other document or security or of the Secured Obligations;    (g) any unenforceability, illegality, invalidity or non-provability of any obligation   of any person under any Loan Document or any other document or security or of   the Secured Obligations the failure by any member of the Group to enter into or   be bound by any Loan Document; or   (h) any insolvency or similar proceedings or any winding up, dissolution,   administration, or re-organisation or other change in the Chargor or any other   person.    16.4 Immediate recourse   The Chargor waives any right it may have of first requiring any Secured Party (or any   trustee or agent on its behalf) to proceed against or enforce any other right or security or   claim payment from any person or file any proof or claim in any insolvency,   administration, winding-up or liquidation proceedings relative to any other Loan Party or   any other person before claiming from the Chargor under this Deed.   16.5 Appropriations   Until the Discharge Date, each Secured Party (or any trustee or agent on its behalf) may   without affecting the liability of the Chargor under this Deed:   (a) refrain from applying or enforcing any other moneys, security or rights held or   received by that Secured Party (or any trustee or agent on its behalf) against   those amounts;    (b) apply and enforce them in such manner and order as it sees fit (whether against   those amounts or otherwise; and   (c) hold in an interest-bearing suspense account any moneys received from the   Chargor or on account of the Chargor’s liability under this Deed.   16.6 Non-competition    Unless:   (a) the Discharge Date has occurred; or   (b) the Administrative Agent otherwise directs,   the Chargor will not, after a claim has been made or by virtue of any payment or   performance by it under this Deed:   (i) be subrogated to any rights, security or moneys held, received or   receivable by any Secured Party (or any trustee or agent on its behalf);     





 







20      (ii) be entitled to any right of contribution or indemnity in respect of any   payment made or moneys received on account of the Chargor’s liability   under this Clause;   (iii) claim, rank, prove or vote as a creditor of any Loan Party or its estate in   competition with any Secured Party (or any trustee or agent on its   behalf); or   (iv) receive, claim or have the benefit of any payment, distribution or   security from or on account of any Loan Party, or exercise any right of   set-off as against any Loan Party.   The Chargor must hold on trust for and must immediately pay or transfer to the   Administrative Agent for the Secured Parties any payment or distribution or benefit of   security received by it contrary to this Clause or in accordance with any directions given   by the Administrative Agent under this Clause.   16.7 Additional security   (a) This Deed is in addition to and is not in any way prejudiced by any other security   now or subsequently held by any Secured Party.    (b) No prior security held by any Secured Party (in its capacity as such or otherwise)   over any Security Asset will merge into this Security.   16.8 No Prejudice   This Security shall not be prejudiced by any unenforceability or invalidity of any other   agreement or document or by any time or indulgence granted to any other person, or the   Administrative Agent (whether in its capacity as trustee or otherwise) or any of the other   Secured Parties or by any variation of the terms of the trust upon which the   Administrative Agent holds the Security or by any other thing which might otherwise   prejudice that Security.   16.9 Remedies and Waivers   No failure on the part of the Administrative Agent to exercise, or any delay on its part in   exercising, any rights under this Security shall operate as a waiver of that right, nor shall   any single or partial exercise of any right under this Security preclude any further or   other exercise of that or any other right under this Security.   16.10 Partial Invalidity   If, at any time, any provision of this Deed is or becomes illegal, invalid or unenforceable   in any respect under the law of any jurisdiction, neither the legality, validity or   enforceability of the remaining provisions of this Deed nor of such provision under the   laws of any other jurisdiction shall in any way be affected or impaired thereby and, if any   part of the Security is invalid, unenforceable or ineffective for any reason, that shall not   affect or impair any other part of the Security.   16.11 Deferral of Rights   Until the Discharge Date, the Chargor shall not exercise any rights which it may have by   reason of performance by it of its obligations under this Deed:     





 







21      (a) to be indemnified by any Obligor;   (b) to claim any contribution from any guarantor of any Obligor's obligations under   this Deed; and/or   (c) to take the benefit (in whole or in part and whether by way of subrogation or   otherwise) of any rights of the Secured Parties under the Loan Documents or of   any other guarantee or security taken pursuant to, or in connection with, this   Deed by any Secured Party.   16.12 Security held by Chargor   The Chargor may not, without the prior consent of the Administrative Agent, hold any   security from any other Loan Party in respect of the Chargor’s liability under this Deed.   The Chargor will hold any security held by it in breach of this provision on trust for the   Administrative Agent.   17. MISCELLANEOUS   17.1 Interest   If the Chargor fails to pay any sums on the due date for payment of that sum the Chargor   shall pay interest on such sum (before and after any judgment and to the extent interest at   a default rate is not otherwise being paid on that sum) in accordance with the provisions   of section 2.08 (Interest) of the Credit Agreement.   17.2 Tacking   Each Lender must perform its obligations under the Credit Agreement (including any   obligation to make available further advances).   17.3 New Accounts   (a) If any subsequent charge or other interest affects any Security Asset, any   Secured Party may open a new account with any Loan Party.   (b) If a Secured Party does not open a new account, it will nevertheless be treated as   if it had done so at the time when it received or was deemed to have received   notice of that charge or other interest.   (c) As from that time all payments made to that Secured Party will be credited or be   treated as having been credited to the new account and will not operate to reduce   any Secured Obligation.   17.4 Time deposits   Without prejudice to any right of set-off any Secured Party may have under any Loan   Document or otherwise, if any time deposit matures on any account the Chargor has with   any Secured Party within the Security Period when:   (a) this Security has become enforceable; and   (b) no Secured Obligation is due and payable,     





 







22      that time deposit will automatically be renewed for any further maturity which that   Secured Party in its absolute discretion considers appropriate unless that Secured Party   otherwise agrees in writing.   17.5 Notice of assignment   This Deed constitutes notice in writing to the Chargor of any charge or assignment of a   debt owed by the Chargor to any other member of the Group and contained in any Loan   Document.   17.6 Perpetuity period   The perpetuity period for the trusts in this Deed is 125 years.   17.7 Financial Collateral   (a) To the extent that the assets mortgaged or charged under this Deed constitute   “financial collateral” and this Deed and the obligations of the Chargor under this   Deed constitute a “security financial collateral arrangement” (in each case for   the purpose of and as defined in the Financial Collateral Arrangements (No.2)   Regulations 2003 (SI 2003 No. 3226)) the Administrative Agent shall have the   right after this Security has become enforceable to appropriate all or any part of   that financial collateral in or towards the satisfaction of the Secured Obligations.   (b) For the purpose of paragraph (a) above, the value of the financial collateral   appropriated shall be (i) in the case of cash, the amount standing to the credit of   each of the Security Accounts, together with any accrued but unposted interest,   at the time the right of appropriation is exercised; and (ii) in the case of any other   asset, such amount as the Administrative Agent may determine having taken   into account advice obtained by it from an independent investment or   accountancy firm of national standing selected by it. In each case, the parties   agree that the method of valuation provided for in this Deed shall constitute a   commercially reasonable method of valuation for the purposes of the   Regulations.   18. RELEASE   (a) At the end of the Security Period (or as required under the Loan Documents), the   Administrative Agent must, at the request and cost of the Chargor, take whatever   action is reasonably necessary and within its power to release the relevant   Security Assets (whether in whole or in part) from this Security subject to   paragraph (b) below.   (b) If any discharge or release of the Chargor of its obligations under this Deed   and/or of this Security is made in whole or in part on the faith of any payment,   security or other disposition which is avoided, rescinded or must be restored or   returned, the liability of the Chargor under this Deed and the Security will   continue or be reinstated as if the discharge or release had not occurred.   19. COUNTERPARTS     This Deed may be executed in any number of counterparts and all of those counterparts   taken together shall be deemed to constitute one and the same instrument.     





 







23      20. NOTICES   20.1 Communications in Writing   Each communication to be made under or in connection with this Deed shall be made in   writing and, unless otherwise stated, shall be made by email, fax or letter.   20.2 Addresses   (a) Any notice or other communication herein required or permitted to be given to a   party to this Deed shall be sent to the relevant party’s address set out in Clause   20.2(b) or as set forth in the Credit Agreement or any substitute address, email,   fax number or department or officer as the relevant party may notify to the   Administrative Agent (or the Administrative Agent may notify to the other   parties, if a change is made by the Administrative Agent) by not less than five   business days' notice.   (b) For the purposes of Clause 20.2(a) , the contact details of the Chargor shall be as   follows:   Legal Department (UK)   Ena Hunter – Corporate Counsel, UK and Ireland   Avaya House   Cathedral Hill   Guildford   Surrey GU2 7YL   Tel: 01483 308332   Email: ehunter@avaya.com   with a copy to:   Legal Department (US)   Adele Freedman, VP and Deputy GC   c/o Avaya Inc.   4655 Great American Parkway   Santa Clara, CA 95054   Tel: (408) 562-3400     Email: afreedman@avaya.com     





 







24         20.3 Delivery   (a) Any communication or document made or delivered by one person to another   under or in connection with this Deed will only be effective:     (i) if by way of fax or email, when received in legible form; or   (ii) if by way of letter, when it has been left at the relevant address or, as the   case may be, five days after being deposited in the post postage prepaid   in an envelope addressed to it at that address.   (b) Any communication or document to be made or delivered to the Administrative   Agent under or in connection with this Deed shall be effective only when   actually received by the Administrative Agent and then only if it is expressly   marked for the attention of the department or officer identified with the   Administrative Agent’s communication details (or any substitute department or   officer as the Administrative Agent shall specify for this purpose).   20.4 Notification of address, fax number and email address    Promptly upon receipt of notification of an address, fax number and email address or   change of address, email or fax number pursuant to Clause 20.2 (Addresses) or changing   its own address, email or fax number, the Administrative Agent shall notify the other   parties.   20.5 English language   (a) Any notice given under or in connection with this Deed must be in English.   (b) All other documents provided under or in connection with this Deed must be:   (i) in English; or   (ii) if not in English, and if so required by the Administrative Agent,   accompanied by a certified English translation and, in this case, the   English translation will prevail unless the document is a constitutional,   statutory or other official document.   21. GOVERNING LAW    This Deed and any non-contractual obligations arising out of or in connection with it are   governed by English law.   22. ENFORCEMENT   22.1 Jurisdiction of English courts   (a) The courts of England have exclusive jurisdiction to settle any dispute arising   out of or in connection with this Deed (including a dispute relating to the   existence, validity or termination of this Deed or any non-contractual obligation   arising out of or in connection with this Deed) (a "Dispute").     





 







25   1243204      (b) The parties to this Deed agree that the courts of England are the most appropriate   and convenient courts to settle Disputes and accordingly no party will argue to   the contrary.   (c) This Clause 22.1 is for the benefit of the Secured Parties only. As a result, no   Secured Party shall be prevented from taking proceedings relating to a Dispute   in any other courts with jurisdiction.  To the extent allowed by law, the Secured   Parties may take concurrent proceedings in any number of jurisdictions.   22.2 Waiver of immunity    The Chargor irrevocably and unconditionally:   (a) agrees not to claim any immunity from proceedings brought by a Secured Party   against it in relation to this Deed and to ensure that no such claim is made on its   behalf;   (b) consents generally to the giving of any relief or the issue of any process in   connection with those proceedings; and   (c) waives all rights of immunity in respect of it or its assets.    22.3 Waiver of trial by jury   EACH PARTY WAIVES ANY RIGHT IT MAY HAVE TO A JURY TRIAL OF ANY   CLAIM OR CAUSE OF ACTION IN CONNECTION WITH THIS DEED OR ANY   TRANSACTION CONTEMPLATED BY THIS DEED. THIS DEED MAY BE FILED   AS A WRITTEN CONSENT TO TRIAL BY THE COURT.   This Deed has been executed and delivered as a deed on the date stated at the beginning of this   Deed.     





 







26      SCHEDULE 1   CHARGED SHARES   Chargor   Name of   Charged   Company   Name of   nominee (if   any) by   whom shares   are held   Class of   shares held   Number of   shares held   (and total   number of   such shares in   issue on the   date of this   Deed)   Share   certificate   number(s)   Avaya UK   Holdings   Limited    Avaya UK N/A Ordinary 15,670,684  1