ex1013germanguarantygerm







Execution Copy   AVAYA Guaranty and Indemnity Agreement (#284400FRA)   AVAYA DEUTSCHLAND GMBH   AVAYA GMBH & CO. KG   AVAYA VERWALTUNGS GMBH   AVAYA GERMANY GMBH   TENOVIS TELECOM FRANKFURT GMBH & CO. KG   as Guarantors   CITIBANK, N.A.   as Administrative Agent   German Guarantee and Indemnity   (Garantie und Ausfallhaftung)   Skadden, Arps, Slate, Meagher & Flom LLP   An der Welle 3   60322 Frankfurt am Main   Germany   Exhibit 10.13    





 







1   AVAYA Guaranty and Indemnity Agreement (#284400FRA)   This GUARANTY AND INDEMNITY AGREEMENT (the "Guaranty") is dated   as of 4 June 2015 and entered into   BETWEEN:   (1) AVAYA GMBH & CO. KG, a limited partnership with a limited liability   company as its general partner (GmbH & Co. KG) organized under the laws of   the Federal Republic of Germany, with registered office at Theodor-Heuss-   Allee 112, 60486 Frankfurt am Main, Germany, registered with the   commercial register (Handelsregister) of the local court (Amtsgericht) of   Frankfurt under registration number HRA 29419 ("Guarantor 1");   (2) AVAYA DEUTSCHLAND GMBH, a limited liability company   (Gesellschaft mit beschränkter Haftung) constituted under the laws of the   Federal Republic of Germany, with registered office at Theodor-Heuss-Allee   112, 60486 Frankfurt am Main, Germany, registered with the commercial   register (Handelsregister) of the local court (Amtsgericht) of Frankfurt under   registration number HRB 100757 ("Guarantor 2");   (3) AVAYA VERWALTUNGS GMBH, a limited liability company   (Gesellschaft mit beschränkter Haftung) constituted under the laws of the   Federal Republic of Germany, with registered office at Theodor-Heuss-Allee   112, 60486 Frankfurt am Main, Germany, registered with the commercial   register (Handelsregister) of the local court (Amtsgericht) of Frankfurt under   registration number HRB 76816 ("Guarantor 3");   (4) AVAYA GERMANY GMBH, a limited liability company (Gesellschaft mit   beschränkter Haftung) constituted under the laws of the Federal Republic of   Germany, with registered office at Theodor-Heuss-Allee 112, 60486 Frankfurt   am Main, Germany, registered with the commercial register (Handelsregister)   of the local court (Amtsgericht) of Frankfurt under registration number HRB   47534 ("Guarantor 4");   (5) TENOVIS TELECOM FRANKFURT GMBH & CO KG, a limited   partnership (Gesellschaft mit beschränkter Haftung) constituted under the laws   of the Federal Republic of Germany, with registered office at Theodor-Heuss-   Allee 112, 60486 Frankfurt am Main, Germany, registered with the   commercial register (Handelsregister) of the local court (Amtsgericht) of   Frankfurt under registration number HRA 29494 ("Guarantor 5"; Guarantor 1   to Guarantor 5 are collectively referred to as the "Guarantors"); and   (6) Citibank, N.A., in its capacity as administrative agent under the Credit   Agreement (as defined below), (the "Administrative Agent").   The Guarantors and the Administrative Agent are hereinafter collectively   referred to as the "Parties" and each also as a "Party".   WHEREAS:   (A) Reference is made to that certain credit agreement, dated as of 4 June 2015,    





 







2   AVAYA Guaranty and Indemnity Agreement (#284400FRA)   among Avaya Canada Corp., an unlimited liability company organized under   the laws of the province of Nova Scotia, Avaya UK, a company incorporated   under the laws of England and Wales, Avaya International Sales Limited, a   limited liability company incorporated under the laws of Ireland, Guarantor 1   and Guarantor 2 as borrowers (collectively, the "Borrowers"), the other loan   parties from time to time party thereto, the lenders from time to time party   thereto, the Administrative Agent, and each other party thereto (as amended,   restated, supplemented, confirmed or otherwise modified from time to time the   "Credit Agreement").   (B) Each Guarantor has agreed to provide for a guaranty in favour of the   Administrative Agent and the other Secured Parties (as defined below).   (C) This Guaranty is to be administered by the Administrative Agent for and on   behalf of the Secured Parties (as defined below) pursuant to the Credit   Agreement.   NOW THEREFORE, the Parties agree as follows:   1. DEFINITIONS AND RULES OF CONSTRUCTION   1.1 Definitions   In this Guaranty:   "Business Day" means any day other than a Saturday, Sunday or other day on   which commercial banks in New York City, USA, or Frankfurt am Main are   authorized or required by law to close.   "Parallel Obligations" means the independent obligations of any Loan Party   arising pursuant to Section 10.30 of the Credit Agreement or under any other   abstract acknowledgement of indebtedness (abstraktes Schuldanerkenntnis) in   favour of the Administrative Agent granted in relation to the Loan Documents.   "Secured Obligations" has the meaning as ascribed to the term "Obligations"   in the Credit Agreement, including, the Parallel Obligations. The Secured   Obligations shall include any obligation based on unjust enrichment   (ungerechtfertigte Bereicherung) or tort (Delikt).   "Secured Parties" means the "Secured Parties" as defined in the Credit   Agreement.   1.2 Construction   (a) In this Guaranty the word(s):   (i) "include", "includes", "including" and "in particular" shall be   construed as illustrative only and not as limiting the generality   of any preceding words;   (ii) "hereby", "herein", "hereof", "hereunder" and "herewith",   and words of similar import, shall be construed to refer to this    





 







3   AVAYA Guaranty and Indemnity Agreement (#284400FRA)   Guaranty in its entirety and not to any particular provision   hereof;   (iii) "person" includes any individual, firm, company, corporation,   government, state or agency of a state or any association, trust,   joint venture, consortium or partnership (whether or not having   separate legal personality);   (iv) "promptly" means without undue delay (ohne schuldhaftes   Zögern); and   (v) "will" shall be construed to have the same meaning and effect   as the word "shall".   (b) Unless a contrary indication appears, words importing the plural shall   include the singular and vice versa.   (c) Capitalised terms used but not otherwise defined herein shall have the   meaning ascribed to them in the Credit Agreement.   1.3 Other references   (a) Unless a contrary indication appears, in this Guaranty :   (i) any definition of, or reference to, any agreement, instrument or   other document shall be construed as a reference to such   agreement, instrument or other document as amended, novated,   restated, supplemented, superseded, extended or otherwise   modified from time to time (subject to any restrictions on such   amendments, novations, restatements, supplements,   supersessions, extensions or modifications set forth in any of   the Loan Documents);   (ii) any reference to any person shall be construed to include such   person's successors, transferees and assigns; and   (iii) references to Clauses and Schedules are references to clauses of,   and schedules to, this Guaranty.   (b) The headings in this Guaranty are for ease of reference only and shall   not affect the interpretation of this Guaranty.   1.4 This Guaranty is made in the English language. For the avoidance of doubt,   the English language version of this Guaranty shall prevail over any   translation of this Guaranty. However, where a German translation of an   English word or phrase appears in the text of this Guaranty, the German   translation of such word or phrase shall prevail. Where a legal concept is   described in English, the meaning or construction of such legal concept under   any law other than the law of the Federal Republic of Germany by any   relevant foreign court shall not apply to this Guaranty and in any event shall   be ascribed the meaning or construction as applied by the law of the Federal   Republic of Germany or a German court.    





 







4   AVAYA Guaranty and Indemnity Agreement (#284400FRA)   2. GUARANTY AND INDEMNITY   2.1 Each Guarantor irrevocably and unconditionally jointly and severally   (gesamtschuldnerisch):   (a) guarantees (garantiert) by way of an independent payment obligation   (selbständiges Zahlungsversprechen) to the Administrative Agent and,   by way of a contract in favour of third parties (echter Vertrag zu   Gunsten Dritter) in the meaning of Section 328 of the German Civil   Code (Bürgerliches Gesetzbuch – "BGB"), to each of the other   Secured Parties the payment of the Secured Obligations that have not   been fully and irrevocably paid by a Borrower; the payment shall be   due (fällig) within 3 (three) Business Days of a written demand by the   Administrative Agent (on behalf of any Secured Party) stating the sum   demanded from that Guarantor and that such sum forms part of the   Secured Obligations and that has not been fully and irrevocably paid   by a Borrower; and   (b) undertakes vis-à-vis to the Administrative Agent and, by way of a   contract in favour of third parties (echter Vertrag zu Gunsten Dritter)   in the meaning of Section 328 of the German Civil Code (Bürgerliches   Gesetzbuch – "BGB") to each of the other Secured Parties to   indemnify (schadlos halten) that Secured Party against any cost, loss   or liability suffered by that Secured Party if any obligation of a   Borrower under or in connection with any Loan Document or any   obligation guaranteed by it is or becomes unenforceable, invalid or   illegal, in each case subject to the limitations set forth in Section 10.05   of the Credit Agreement. The amount of the cost, loss or liability shall   be equal to the amount which that Secured Party would otherwise have   been entitled to recover (Ersatz des positiven Interesses) and that claim   shall be due (fällig) within (3) three Business Days of a written   demand by that Secured Party (or the Administrative Agent on its   behalf).   For the avoidance of doubt this guarantee and indemnity does not constitute a   guarantee upon first demand (Garantie auf erstes Anfordern) and, in particular,   receipt of such written demand shall not preclude any rights and/or defences   the Guarantor may have with respect to any payment requested by a Secured   Party (or the Administrative Agent on its behalf) under this guarantee and   indemnity.   2.2 Continuing and independent guarantee and indemnity   This guarantee and indemnity is independent and separate from the obligations   of any Borrower and is a continuing guarantee and indemnity which will   extend to the ultimate balance of the Secured Obligations, regardless of any   intermediate payment or discharge in whole or in part.   The guarantee and indemnity shall extend to any additional obligations of a   Borrower resulting from any amendment, novation, supplement, extension,   restatement or replacement of any Loan Documents, including without    





 







5   AVAYA Guaranty and Indemnity Agreement (#284400FRA)   limitation any extension of or increase in any facility or the addition of a new   facility under any Loan Document.   2.3 Reinstatement   If any payment by a Loan Party or any discharge given by a 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 each Loan Party shall continue as if the payment,   discharge, avoidance or reduction had not occurred; and   (b) each Secured Party shall be entitled to recover the value or amount of   that security or payment from each Loan Party, as if the payment,   discharge, avoidance or reduction had not occurred.   2.4 Excluded defences   (a) The obligations of each Guarantor under this Guaranty will not be   affected by an act, omission, matter or thing which relates to the   principal obligation (or purported obligation) of any Borrower and   which would reduce, release or prejudice any of its obligations under   this Guaranty, including any personal defences of any Borrower   (Einreden des Hauptschuldners) or any right of revocation (Anfechtung)   or set-off (Aufrechnung) of any Borrower.   (b) The obligations of each Guarantor under this Guaranty are independent   from any other security or guarantee which may have been or will be   given to the Secured Parties. In particular, the obligations of each   Guarantor under this Guaranty will not be affected by any of the   following:   (i) the release of, or any time (Stundung), waiver or consent   granted to, any other Loan Party from or in respect of its   obligations under or in connection with any Loan Document;   (ii) 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 Loan Party or any   other person or any failure to realise the full value of any   security;   (iii) any incapacity or lack of power, authority or legal personality   of or dissolution or a deterioration of the financial condition of   any other Loan Party; or   (iv) any unenforceability, illegality or invalidity of any obligation   of any other Loan Party under any Loan Document.   (c) For the avoidance of doubt nothing in this Guaranty shall preclude any   defences that any Guarantor (in its capacity as Guarantor only) may    





 







6   AVAYA Guaranty and Indemnity Agreement (#284400FRA)   have against a Secured Party that the guarantee and indemnity does not   constitute its legal, valid, binding or enforceable obligations.   2.5 Immediate recourse   No Secured Party will be required to proceed against or enforce any other   rights or security or claim payment from any person before claiming from that   Guarantor under this Guaranty . This applies irrespective of any provision of a   Loan Document to the contrary.   2.6 Appropriations   Until all Secured Obligations have been irrevocably discharged in full, subject   to the provisions of the Credit Agreement, each Secured Party may:   (a) refrain from applying or enforcing any other moneys, security or rights   held or received by that Secured Party in respect of those amounts, or   apply and enforce the same in such manner and order as it sees fit   (whether against those amounts or otherwise) and no Guarantor shall   be entitled to the benefit of the same; and   (b) hold in an interest-bearing suspense account any moneys received from   any Guarantor or on account of any Guarantor's liability under this   Guaranty .   2.7 Deferral of Guarantors' rights   Until all Secured Obligations have been irrevocably discharged in full and   unless the Administrative Agent otherwise directs, no Guarantor will exercise   any rights which it may have by reason of performance by it of its obligations   under the Loan Documents or by reason of any amount being payable, or   liability arising, under this Guaranty:   (a) to be indemnified by a Loan Party;   (b) to claim any contribution from any other guarantor of any Loan Party's   obligations under the Loan Documents;   (c) to exercise any right of set-off against any Loan Party; and/or   (d) to take the benefit (in whole or in part and whether by way of legal   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, the Loan Documents by any Secured Party.   If a Guarantor 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 Secured Obligations have been irrevocably discharged in full to   be repaid or discharged 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 for application in accordance with the Credit   Agreement.    





 







7   AVAYA Guaranty and Indemnity Agreement (#284400FRA)   2.8 Release of Guarantors' right of contribution   2.9 If any Guarantor (a "Retiring Guarantor") ceases to be a Guarantor in   accordance with the terms of the Loan Documents for the purposes permitted   under the Loan Documents then on the date such Retiring Guarantor ceases to   be a Guarantor:   (a) that Retiring Guarantor is released by each other Guarantor from any   liability (whether past, present or future and whether actual or   contingent) to make a contribution to any other Guarantor arising by   reason of the performance by any other Guarantor of its obligations   under the Loan Documents; and   (b) each other Guarantor waives any rights it may have by reason of the   performance of its obligations under the Loan Documents 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 any Loan   Document or of any other security taken pursuant to, or in connection   with, any Loan Document where such rights or security are granted by   or in relation to the assets of the Retiring Guarantor.   2.10 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.   3. REPRESENTATIONS   Each Guarantor hereby guarantees (garantiert) to the Administrative Agent by   way of an independent guarantee (selbstständiges Garantieversprechen)   pursuant to § 311 para. 1 BGB that the following statements are accurate and   complete as at the date hereof:   3.1 at the date hereof each of Guarantor 1 and Guarantor 2 is (i) validly existing   and (ii) neither unable to pay its debts as and when they fall due   (zahlungsunfähig), over-indebted (überschuldet) nor subject to imminent   illiquidity (drohende Zahlungsunfähigkeit) (all within the meaning of §§ 17 to   19, inclusive, of the German Insolvency Act (Insolvenzordnung)) or any   similar situation under any applicable law or subject to any insolvency   proceedings (Insolvenzverfahren) or similar proceedings under any applicable   law; and   3.2 it has the corporate power and authority to enter into this Guaranty, and all   necessary authorisations to entitle the relevant Guarantor to enter into this   Guaranty have been obtained and are in full force and effect.   4. UNDERTAKINGS   During the term of this Guaranty, each Guarantor undertakes to the   Administrative Agent to conduct all legal actions and to take all actions, at its   own costs and expenses, that the Administrative Agent reasonably requests for    





 







8   AVAYA Guaranty and Indemnity Agreement (#284400FRA)   the creation, perfection, maintenance, protection, continuance or enforcement   of the Guaranty and any of the rights purported to be created hereunder.   5. COSTS, EXPENSES AND INDEMNITY   Sections 10.04 and 10.05 of the Credit Agreement shall apply accordingly as   explicitly set out in this Guaranty.   6. NOTICES AND LANGUAGE   6.1 All notices, consents, and other communications hereunder shall be made in   writing and shall be hand-delivered or sent by facsimile or courier to the   following addresses, or to such other recipients or addresses as notified by the   respective Party to the other Parties in writing no later than 5 (five) Business   Days before any subsequent notices or communications will be sent to such   Person:   to Guarantor 1: AVAYA GMBH & CO. KG   Address: Theodor-Heuss-Allee 112   60486 Frankfurt am Main   Germany   Telefax: (0049) (69) 7505 56384   Attention: Wolfgang Zorn   Area Controller DACH   to Guarantor 2: AVAYA DEUTSCHLAND GMBH   Address: Theodor-Heuss-Allee 112   60486 Frankfurt am Main   Germany   Telefax: (0049) (69) 7505 56384   Attention: Wolfgang Zorn   Area Controller DACH   to Guarantor 3: AVAYA VERWALTUNGS GMBH   Address: Theodor-Heuss-Allee 112   60486 Frankfurt am Main   Germany   Telefax: (0049) (69) 7505 56384   Attention: Wolfgang Zorn   Area Controller DACH   to Guarantor 4: AVAYA GERMANY GMBH   Address: Theodor-Heuss-Allee 112   60486 Frankfurt am Main   Germany   Telefax: (0049) (69) 7505 56384   Attention: Wolfgang Zorn   Area Controller DACH    





 







9   AVAYA Guaranty and Indemnity Agreement (#284400FRA)   to Guarantor 5: TENOVIS TELECOM FRANKFURT GMBH   & CO KG   Address: Theodor-Heuss-Allee 112   60486 Frankfurt am Main   Germany   Telefax: (0049) (69) 7505 56384   Attention: Wolfgang Zorn   Area Controller DACH   in each case with   copy to:   Adele Freedman   Address: c/o Avaya Inc.   4655 Great American   Parkway   Santa Clara, CA 95054   U.S.A.   Michael Lee   Address: ROPES & GRAY LLP   Prudential Tower, 800   Boylston Street   Boston, MA 02199-3600   U.S.A.   to the   Administrative   Agent:   CITIBANK, N.A.   Address:   Attention:   390 Greenwich Street, 1st   Floor   New York, NY 10013   Brendan Mackay   Telephone: (001) (212) 723-3752   Telefax: (001) (646) 291-3363   6.2 Proof of posting or dispatch of any notice or communication to any Guarantor   shall be deemed (widerlegbare Vermutung) to be proof of receipt in the case   of a letter, on the second Business Day in the country of receipt after posting   and in the case of a fax transmission or cable on the Business Day in the   country of receipt immediately following the date of its dispatch.   6.3 Any notice or other communication under or in connection with this Guaranty   shall be in the English language or, if in any other language, accompanied by a   translation into the English language. In the event of any conflict between the   English language text and the text in the other language, the English language   text shall prevail (including in case of translations into the English language).    





 







10   AVAYA Guaranty and Indemnity Agreement (#284400FRA)   7. PARTIAL INVALIDITY; WAIVER   7.1 Invalidity   7.2 Without prejudice to any other provision hereof, if at any time any provision   hereof is or becomes void (nichtig), invalid, illegal or unenforceable in any   respect in any jurisdiction or with respect to any Party, this shall not, to the   fullest extent permitted by mandatory, applicable law, render void, invalid,   illegal or unenforceable such provision or provisions in any other jurisdiction   or with respect to any other Party and shall not affect or impair the validity,   legality and enforceability of the remaining provisions hereof. Such void,   invalid, illegal or unenforceable provision shall be deemed replaced by such   valid, legal and enforceable provision that comes as close as reasonably   possible to the commercial intentions of the Parties. Should a gap   (Regelungslücke) become evident in this Guaranty, such gap shall, without   affecting or impairing the validity, legality and enforceability of the remaining   provisions hereof, be deemed to be filled with such provision as comes as   close as reasonably possible to what the Parties would have intended in   accordance with the purpose of this Guaranty had they considered the point at   the time of conclusion of this Guaranty. § 139 BGB shall not at all apply.   7.3 Waiver   No failure to exercise, nor any delay in exercising, on the part of the   Administrative Agent or any other Secured Party, any right or remedy   hereunder shall operate as a waiver thereof, nor shall any single or partial   exercise of any right or remedy prevent any further or other exercise thereof or   the exercise of any other right or remedy. The rights and remedies provided   hereunder are cumulative and not exclusive of any rights or remedies provided   by law.   8. COUNTERPARTS AND CONCLUSION OF THIS GUARANTY   8.1 This Guaranty may be executed in any number of counterparts each of which   when so executed shall constitute one and the same Guaranty.   8.2 This Guaranty may be concluded by an exchange of signed signature page(s),   transmitted by way of fax, computer fax or attached as an electronic   photocopy to an email.   8.3 If the Guaranty is to be concluded pursuant to Clause 8.2 (Counterparts and   Conclusion of this Guaranty) above, each Party shall transmit its signed   signature page(s) to Skadden, Arps, Slate, Meagher & Flom LLP, attention   Dr. Jörg Hanke and Dr. Johannes Kremer by electronic mail to   joerg.hanke@skadden.com and johannes.kremer@skadden.com (each a   "Recipient"). The Recipient acting as an authorised receiving agent   (Empfangsbote) will forward all received signature pages to all Parties by one   of the means of communication referred to in Clause 8.2 (Counterparts and   Conclusion of this Guaranty) above. The Guaranty shall be concluded as soon   as all Parties to this Guaranty as of the date hereof have received signature   pages of all other Parties (actually or in a form acknowledged by German case    





 







11   AVAYA Guaranty and Indemnity Agreement (#284400FRA)   law - Zugang). Promptly after receipt of all signature pages by the Parties,   each party to this Guaranty shall confirm such receipt.   8.4 For the purposes of Clause 8.3 (Counterparts and Conclusion of this   Guaranty) above, each Party authorises each Recipient by (counter)signing   this Guaranty to receive on its behalf the signature page(s) from all other   Parties as an authorised receiving agent (Empfangsbote). For the avoidance of   doubt, no Recipient shall have further duties connected with its position as   Recipient (in particular, but not limited to, no Recipient shall be under an   obligation to examine the genuineness of the signatures or the authorisation of   the signatories).   8.5 For purposes of proof and confirmation only, the Administrative Agent may   request that one or several copies of this Guaranty shall be originally signed   by the Parties.   9. AMENDMENTS   Changes to and amendments of this Guaranty, including this Clause 9, must be   made in writing by the Parties hereto.   10. ASSIGNS AND TRANSFEREES   This Guaranty shall be binding upon the Parties and their respective   successors in law. The Administrative Agent and each other Secured Party   shall be entitled to assign or otherwise transfer any and all of its rights and   duties under this Guaranty to any third party in accordance with the Credit   Agreement. None of the Guarantors shall be entitled to any such assignment or   transfer other than pursuant to a transaction permitted by the Credit   Agreement.   11. APPLICABLE LAW; JURISDICTION   11.1 Governing Law   This Guaranty shall be governed by and construed in accordance with, the   laws of the Federal Republic of Germany.   11.2 Jurisdiction   The district court (Landgericht) in Frankfurt am Main shall, to the extent   legally permissible, have exclusive jurisdiction for any and all disputes arising   under or in connection with this Guaranty ; provided, however, that the   Administrative Agent and each other Secured Party shall also be entitled to   take action against any of the Guarantors in any other court of competent   jurisdiction and that the taking of proceedings against any Guarantor in any   one or more jurisdictions shall not preclude the taking of proceedings in any   other jurisdiction (whether concurrently or not) if and to the extent permitted   by applicable law.   ***