ex109depositaccountcontr







EXECUTION COPY   DEPOSIT ACCOUNT CONTROL AGREEMENT   DEPOSIT ACCOUNT CONTROL AGREEMENT dated as of June 4, 2015 among   Avaya Canada Corp. (the "Lien Grantor"), Citibank, N.A., (the "Secured Party"), and   Citibank, N.A., Canadian branch (the "Depositary Bank").   W I T N E S S E T H :   WHEREAS, the Lien Grantor is the Depositary Bank's customer with respect to the   Accounts (as defined below);   WHEREAS, the Lien Grantor is party to a certain credit agreement dated as of June   4, 2015 between, inter alia, the Secured Party (the "Credit Agreement");   WHEREAS, in connection with the Credit Agreement the Lien Grantor has granted   to the Secured Party a security interest in the Accounts pursuant to a separate agreement   entered into between the Lien Grantor and the Secured Party. The Depositary Bank is being   requested to enter into this Agreement and is willing to do so.   NOW, THEREFORE, the parties hereto agree as follows:   Section 1. Establishment of Accounts. The Depositary Bank confirms that the   Depositary Bank has established the Account(s) set forth on Schedule I in the name of the   Lien Grantor (such account(s) and any successor account(s), the "Accounts").   Section 2. Instructions. The Depositary Bank agrees to comply with any   instructions originated by the Secured Party pursuant to Section 8 hereof directing   disposition of funds in the Accounts without further consent by the Lien Grantor or any   other person. The Secured Party agrees to provide any and all reasonably requested   information by the Depositary Bank to enable the Depositary Bank to comply with   instructions and/or provide the Secured Party with access to CitiDirect (the Depositary   Bank's online banking platform used to initiate transfers).   Section 3. Waiver of Lien; Waiver of Set-off.   (i) Except for amounts referred to in Section 3(h), the Depositary Bank waives any   security interest, lien or right to make deductions or set-offs that it may now have or   hereafter acquire in or with respect to the Accounts. Any amounts credited to the   Accounts will not be subject to deduction, set-off, banker's lien, or any other right in   favor of any person other than the Secured Party.   (ii) Notwithstanding Section 3(i), the Depositary Bank may charge or setoff (via   automatic debit, by mechanical, electronic or manual means) the Deposit Account   for:   (A) all amounts due to it in respect of interest charges, its customary and agreed to   fees and expenses for the routine maintenance and operation of the Accounts;   LEGAL 23808525.11 DEPOSIT ACCOUNT CONTROL AGREEMENT - CANADA   Exhibit 10.9    





 







EXECUTION COPY   (B) any adjustments or corrections of any posting or encoding errors (including any   clerical errors or calculation errors); and   (C) the face amount of any cheques, electronic credits, or other items that have been   credited to the Accounts but at any time are subsequently returned, reversed, unpaid   or otherwise uncollected, for any reason whatsoever.   Section 4. Choice of Law and Waiver of Jury Trial.   (i) This Agreement shall be governed by, and construed and interpreted in   accordance with, the laws of the Province of Ontario and the laws of Canada   applicable therein and the parties hereto irrevocably attorn to the non-exclusive   jurisdiction of the courts of the Province of Ontario in respect of all matters   pertaining to this Agreement.   (ii) Each party waives all rights to trial by jury in any action, claim or proceeding   (including any counterclaim) of any type arising out of or directly or indirectly   relating to this Agreement.   Section 5. Conflict with Other Agreements. In the event of any conflict between this   Agreement (or any portion hereof) and any other agreement between the Depositary Bank   and the Lien Grantor with respect to the Accounts, whether now existing or hereafter entered   into, the terms of this Agreement shall prevail.   Section 6. Amendments. No amendment or modification of this Agreement or   waiver of any right hereunder shall be binding on any party hereto unless it is in writing and   is signed by all the parties hereto.   Section 7. Notice of Adverse Claims. Except for the claims and interests of the   Secured Party and the Lien Grantor, the Depositary Bank does not know of any claim to, or   interest in, the Accounts. If any person asserts any lien, encumbrance or adverse claim   (including any writ, garnishment, judgment, attachment, execution or similar process)   against any one or more of the Accounts, the Depositary Bank will promptly notify the   Secured Party and the Lien Grantor thereof.   Section 8. Lien Grantor Instructions; Notice of Exclusive Control; Provision of   Information.   (i) So long as the Depositary Bank has not received a Notice of Exclusive Control   (as defined below), the Depositary Bank will comply with instructions of the Lien   Grantor or any duly authorized agent of the Lien Grantor in respect of the Accounts.   After the Depositary Bank receives a written notice from the Secured Party that it is   exercising exclusive control over the Accounts in the form of Exhibit A (a "Notice   of Exclusive Control"), the Depositary Bank will cease complying with instructions   of the Lien Grantor or any of its agents and shall thereafter comply only with written   instructions of the Secured Party.   LEGAL 23808525.11 DEPOSIT ACCOUNT CONTROL AGREEMENT - CANADA     





 







EXECUTION COPY   (ii) Notwithstanding Section 8(i) of this Agreement, for a period to be determined by   the Depositary Bank, acting reasonably, following the receipt by the Depositary   Bank of a Notice of Exclusive Control, the Depositary Bank agrees that the Accounts   shall be frozen and the Depositary Bank shall not (i) accept any instructions in   respect of the Accounts or any funds contained therein, whether in writing or   otherwise, from any party to this Agreement or (ii) process any cheques drawn on   any Account, provided that the Depositary Bank may, during such period, deposit   any cheques or other funds received by it for deposit to the Account. Each party to   this Agreement acknowledges and agrees that, where a Notice of Exclusive Control   is delivered after 12:00 p.m. (Toronto time) on any Business Day, the Account shall   be frozen in accordance with this 8(ii) effective as of the next Business Day.   "Business Day" means a day (other than Saturday or Sunday) on which the   Depositary Bank is open for general business in Toronto, Ontario.   (iii) Depositary Bank shall provide to the Lien Grantor and Secured Party, at the   Lien Grantor's expense, monthly statements summarizing the daily activity in the   Account. Depositary Bank shall also provide to Secured Party, at the Lien Grantor's   expense, such information compiled by Depositary Bank in accordance with the   activity, on a daily, weekly or monthly basis, in the Account, as may be reasonably   requested by Secured Party in writing.   Section 9. Representations, Warranties and Covenants of the Depositary Bank. The   Depositary Bank makes the following representations, warranties and covenants:   (i) The Accounts have been established as set forth in Section 1 above and   will be maintained in the manner set forth herein until this Agreement is   terminated. The Depositary Bank will not change the name or account   number of the Accounts without prior written notice to the Secured Party.   (ii) This Agreement is a valid and binding agreement of the Depositary Bank.   (iii) The Depositary Bank has not entered into, and until the termination of   this Agreement will not enter into, any agreement with any person (other   than the Secured Party) relating to the Accounts pursuant to which it has   agreed, or will agree, to comply with any instructions of such person.   The Depositary Bank has not entered into any other agreement with the   Lien Grantor or the Secured Party purporting to limit or condition the   obligation of the Depositary Bank to comply with any instruction as   agreed in Section 2 hereof.   Section 10. Successors and Transferees.   (i) This Agreement shall be binding upon, and shall inure to the benefit of, the   parties hereto and their respective successors and assigns. Except as provided in   LEGAL_23808525.11 DEPOSIT ACCOUNT CONTROL AGREEMENT - CANADA     





 







EXECUTION COPY   Section lO(ii) below, a voluntary transfer of a party's rights or duties under this   Agreement without the written consent of the other parties will be void.   (ii) The Depositary Bank may transfer or assign its rights and duties under this   Agreement to an affiliate or subsidiary, by contract or operation of law, without   consent of the Lien Grantor or Secured Party, and will promptly provide notice to the   parties.   (iii) The Secured Party may transfer or assign its rights and duties under this   Agreement with the prior written consent of the Depositary Bank, such consent not   to be unreasonably withheld.   Section 11. Notices. Except as otherwise provided herein, any notice to the Lien   Grantor, the Depositary Bank or the Secured Party under the provisions hereof shall be   given by courier delivery or by facsimile transmission and if so delivered shall be deemed to   have been given at the time of such delivery and if so sent by telecopier shall be deemed to   have been given on the date transmitted if transmitted between 9:00 am. and 5:00 p.m.   (Toronto time) on a Business Day and otherwise on the first (1st) Business Day after   transmission. Each party may likewise from time to time notify each other party of a change   of address or facsimile number:   Communications with the Lien Grantor shall be addressed as follows:   Avaya Canada Corp.   11 Allstate Pkwy, Suite 300   Markham, ON L3R9T8   Attention: Adele FreedmanVP and Deputy GC, Corporate Law and Corporate   Secretary   Phone: Office (408) 562-3400; Mobile (415) 794-2582   Fax: 408-562-2853   Communications with the Secured Party shall be addressed as follows:   Citibank, N.A.   390 Greenwich Street, 1st Floor   New York, NY 10013   Attention: Brendan Mackay   Phone: 212-723-3752   Fax: 646-862-8261   Communications with the Depositary Bank shall be addressed as follows:   Citibank, N.A, Canadian branch   LEGAL 23808525.11 DEPOSIT ACCOUNT CONTROL AGREEMENT - CANADA     





 







EXECUTION COPY   123 Front Street, Suite 1800   Toronto, ON   M5J 2M3   Attention: Customer Service Department   Phone: 416-947-4174   Fax: 416-947-5462   Communications and delivery of Notice of Exclusive Control to the Depositary   Bank shall be addressed as follows:   Citibank, N.A, Canadian branch   123 Front Street, Suite 1900   Toronto, ON   M5J 2M3   Attention: Global Subsidiaries Group   Phone: 416-947-5864   Fax: 416-915-6347   Section 12. Termination. This Agreement may be terminated (i) by the Secured   Party at any time by notice to the other parties or (ii) by the Depositary Bank upon 30 days   notice to the other parties. Upon the effective date of termination by the Depositary Bank,   the obligations of the Depositary Bank hereunder with respect to the operation and   maintenance of the Accounts after the receipt of such notice shall terminate, and the Secured   Party shall have no further right to originate instructions concerning the Accounts and any   previous Notice of Exclusive Control delivered by the Secured Party shall be deemed to be   of no further force and effect.   Section 13. Indemnity; Depositary Bank's Responsibility. The Lien Grantor and,   following the delivery of the Notice of Exclusive Control, the Secured Party, agrees to   indemnify, defend and hold harmless the Depositary Bank against any loss, liability or   expense (including reasonable fees and disbursements of counsel) incurred in connection   with this Agreement, including any action taken by the Depositary Bank pursuant to the   instructions of the Secured Party, except to the extent due to the gross negligence, bad faith   or willful misconduct of the Depositary Bank or breach of any of the provisions hereof. The   Lien Grantor confirms and agrees that the Depositary Bank shall not have any liability to the   Lien Grantor for wrongful dishonor of any items as a result of any instructions of the   Secured Party. In no event shall the Depositary Bank have liability for any indirect,   consequential, special, punitive, or other such losses, even if the Depositary Bank has been   notified of the likelihood of such damages. The Secured Party agrees to reimburse the   Depositary Bank for any amount listed in Section 3(h) which remains unpaid by Lien   Grantor for a period of 15 days from date of demand made by Depositary Bank or   Depositary Bank is enjoined, stayed or prohibited from making demand.. The Depositary   LEGAL_23808525.11 DEPOSIT ACCOUNT CONTROL AGREEMENT - CANADA     





 







EXECUTION COPY   Bank shall have no duty to inquire or determine whether the obligations of the Lien Grantor   to the Secured Party are in default or whether the Secured Party is entitled to give any such   instructions. The Depositary Bank is fully entitled to rely upon such instructions from the   Secured Party without further inquiry into identity, authority, or right of the person issuing   such instructions.   Section 14. Limitation of Depositary Bank's Liability. Depositary Bank undertakes to   perform only such duties as are expressly set forth in this Agreement and to deal with the   Account with the degree of skill and care that Depositary Bank accords to all accounts and   funds maintained and held by it on behalf of its customers. Notwithstanding any other   provision of this Agreement, it is agreed by the parties hereto that Depositary Bank shall not   be liable for any action taken by it or any of its directors, officers or employees in   accordance with this Agreement except for its or their own gross negligence, bad faith,   wilful misconduct, or breach of any of the provisions hereof. In no event shall Depositary   Bank be liable for losses or delays resulting from computer malfunctions or interruption of   communication facilities which are beyond Depositary Bank's control or from other causes   which are beyond Depositary Bank's control or from force majeure or for indirect, special or   consequential damages.   Section 15. Amendments. This Agreement may only be amended or modified by   written instrument signed by all parties hereto.   Section 16. Severability. Any provision of this Agreement that is or becomes   unenforceable shall be unenforceable to the extent of such unenforceability without   invalidating the remaining provisions hereof. To the extent permitted by applicable law,   each of the parties hereby waives any provision of law that renders any provision hereof   unenforceable in any respect.   Section 17. Further Assurances. The parties shall at all times do, execute,   acknowledge and deliver such acts, deeds and agreements as may be reasonably or desirable   to give effect to the terms of this Agreement.   Section 18. No Fiduciary Obligations. Nothing in this Agreement shall constitute   any party to this Agreement a fiduciary in relation to any other party to this Agreement.   Section 19. Counterparts. This Agreement may be executed in counterparts and by   facsimile, each of which shall be deemed an original, but all of which together shall   constitute one and the same instrument.   [remainder of page intentionally left blank]   LEGAL 23808525.11 DEPOSIT ACCOUNT CONTROL AGREEMENT - CANADA     





 







EXECUTION COPY   IN WITNESS WUEREOI7, the parties hereto have duly executed this Agreement   as of the day and year first above written.   AVAYA CANADA CORP., as Lien. Grantor   f ' \   By: .. — v   Name: ' ,u   Title: A j[ I fecL$tiitc   DEPOSIT ACCOUNT CONTROL AGREEMENT - CANADA     





 







EXECUTION COPY   CITIBANK, N.A., as Secured Party   By:   Name:   Title: Brendan Mackav Vp President and Director   DEPOSIT ACCOUNT CONTROL AGREEMENT - CANADA     





 







EXECUTION COPY   CITIBANK, N.A., CANADIAN BRANCH, as   Depositary Bank   By:   Name- Victoria Patterson   Director   Title: Citibank Canada-GTS (416)947-5885   DEPOSIT ACCOUNT CONTROL AGREEMENT • CANADA     





 







EXECUTION COPY   Exhibit A   [Letterhead of Secured Party]   Deposit Account Control Agreement   Notice of Exclusive Control   [Date]   [Name and Address of Depositary Bank]   Attention:   Re: Notice of Exclusive Control   Ladies and Gentlemen:   As referenced in the Deposit Account Control Agreement dated as of ,   among Avaya Canada Corp. (the "Lien Grantor"), us and you (a copy of which is   attached), we notify you that we will hereafter exercise exclusive control over deposit   account numbers (the "Accounts"). You are instructed not to accept any   directions or instructions with respect to the Accounts from any person other than the   undersigned unless otherwise ordered by a court of competent jurisdiction.   A copy of this notice is simultaneously provided to the Lien Grantor.   We recognize that, as a condition to your complying with this Notice of Exclusive Control   and the Deposit Account Control Agreement and to the extent that we have not already done   so, we must provide you with other information as reasonably required by you.   Very truly yours,   CITIBANK, N.A.   By:   Name:   Title:   cc: Avaya Canada Corp.   A-l   LEGAL 23808525.11