ex1015globalassignmentag







Execution Copy   AVAYA Global Assignment Agreement (#283646FRA)   AVAYA DEUTSCHLAND GMBH   AVAYA GMBH & CO. KG   as Assignors   CITIBANK, N.A.   as Administrative Agent   GLOBAL ASSIGNMENT AGREEMENT   (Globalzessionsvertrag)   Skadden, Arps, Slate, Meagher & Flom LLP   An der Welle 3   60322 Frankfurt am Main   Germany   Exhibit 10.15    





 







AVAYA Global Assignment Agreement (#283646FRA)   Table of Contents   Clause Page   1. Definitions and Rules of Construction...........................................................................2   2. Assignment of Receivables............................................................................................5   3. Transfer of Independent Ancillary Rights .....................................................................5   4. Security Purpose of Assignment....................................................................................5   5. Lists of receivables and insurances................................................................................5   6. Notice of Assignment ....................................................................................................6   7. Receivables under Extended Retention of Title Arrangements.....................................7   8. Checks and Bills of Exchange .......................................................................................7   9. Collection of Receivables by the Assignors ..................................................................8   10. Representations ..............................................................................................................8   11. Undertakings ..................................................................................................................9   12. Enforcement.................................................................................................................10   13. Limitations on Enforcement ........................................................................................11   14. Bookkeeping and Data Processing...............................................................................12   15. Recourse Claims ..........................................................................................................12   16. Costs and Expenses......................................................................................................13   17. Indemnity .....................................................................................................................13   18. Duration and Independence .........................................................................................13   19. Release of Security (Sicherheitenfreigabe) .................................................................13   20. Notices and Language..................................................................................................14   21. Partial Invalidity; Waiver.............................................................................................15   22. Counterparts and conclusion of this agreement ...........................................................15   23. Amendments ................................................................................................................16   24. Assigns and Transferees ..............................................................................................16   25. Applicable Law; Jurisdiction .......................................................................................16   List of Schedules   Schedule Page   Schedule 1 List of Trade Receivables......................................................................................18   Schedule 2 List of insurances ..................................................................................................19   Schedule 3 List of Existing Intra-Group Receivables..............................................................20   Schedule 4 Form of Notice for a Disclosed Assignment.........................................................21   Schedule 5 Form of Blank Notification Letter ........................................................................23    





 







1   AVAYA Global Assignment Agreement (#283646FRA)   This GLOBAL ASSIGNMENT AGREEMENT (the "Agreement") 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 ("Assignor 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   ("Assignor 2"; Assignor 1 and Assignor 2 are collectively referred to as the   "Assignors"); and   (3) Citibank, N.A., in its capacity as administrative agent under the Credit Agreement (as   defined below), (the "Administrative Agent").   The Assignors 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, 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, and the Assignors 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 Assignor has agreed to assign certain receivables to the Administrative Agent as   security for the Secured Obligations (as defined below).   (C) The security interest created pursuant to this Agreement is to be administered by the   Administrative Agent for and on behalf of the Secured Parties (as defined below)   pursuant to the Credit Agreement.    





 







2   AVAYA Global Assignment Agreement (#283646FRA)   NOW THEREFORE, the Parties agree as follows:   1. DEFINITIONS AND RULES OF CONSTRUCTION   1.1 Definitions   In this Agreement:   "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.   "Event of Default" means any event of default as defined and set out in Section 8.01   of the Credit Agreement.   "Independent Ancillary Rights" means, with respect to any Receivable, all of the   Assignor's interest in any goods and work in progress (including returned or   repossessed goods) relating to the sale creating such Receivable, and all security,   deposits, guarantees, insurances (including credit insurance covering account debtor   default risk (Delkredererisiko)), indemnities, letters of credit, bills of exchange,   cheques, other negotiable instruments, warranties, retention of title and other   agreements and arrangements not created or made by the relevant Assignor   supporting or securing payment of such Receivable and all proceeds at any time   arising out of the resale, redemption or other disposal (net of collection costs), or   dealing with, or judgments relating to, any of the foregoing, any debts represented   thereby and all rights of action against any person in connection therewith.   "Insurances" means all existing or future German law governed contracts and   policies of insurance (including, for the avoidance of doubt, all cover notes) of   whatever nature (except for third party liability insurances (Haftpflichtversicherungen)   and insurance policies entered into for the benefit of any Assignor's employees) which   are from time to time taken out by or on behalf of the relevant Assignor or (to the   extent of such interest) in which the relevant Assignor has an interest, including, but   not limited to, those specified in Schedule 2 (List of Insurances).   "Intra-Group Agreements" means any and all present and future German law   governed agreements between any Assignor and another Affiliate under which the   respective Affiliate is owing monies to the relevant Assignor, in particular (i) loan   agreements (including intercompany loans resulting from any cash pool arrangements)   and (ii) any current account arrangements (irrespective of whether genuine or non-   genuine current account arrangements (echte oder unechte Kontokorrentverhältnisse)   and including the claim to determine the current account balance (Anspruch auf   Feststellung des gegenwärtigen Saldos) and the current account balance receivable   (Kontokorrentsaldoanspruch)).   "Intra-Group Receivables" means any and all present and future, actual and   contingent German law governed monetary rights and claims of any Assignor arising   under or with respect to any and all Intra-Group Agreements.    





 







3   AVAYA Global Assignment Agreement (#283646FRA)   "Receivables" means:   (a) the Trade Receivables;   (b) any and all present and future, actual and contingent rights and claims to   which any Assignor is now or may hereafter become entitled in respect of all   present and future Insurances of the relevant Assignor or by any third party for   the benefit of the relevant Assignor (the "Insurance Receivables"); and   (c) the Intra-Group Receivables.   "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.   "Security" means any mortgage, charge, pledge, Lien or other security interest   securing any obligation of any person or any other agreement or arrangement having a   similar effect granted by any Foreign Loan Party under the Loan Documents with a   view to securing the Secured Obligations or any other rights of any Secured Party.   "Trade Receivables" means any and all present and future, actual and contingent   German law governed trade accounts receivable (Forderungen aus Lieferungen und   Leistungen (§ 266 para. 2 lit. B, no. II.1 German Commercial Code   (Handelsgesetzbuch, "HGB")) of any Assignor originating from selling or renting-out   of goods and/or providing services (Warenlieferungen und Leistungen) (excluding, for   the avoidance of doubt, any accounts receivable resulting from inter-company loans)   together with any and all present and future current account arrangements   (irrespective of whether genuine or non-genuine current account arrangements (echte   oder unechte Kontokorrentverhältnisse) (the "Current Account Arrangements") and   including the claim to determine the current account balance (Anspruch auf   Feststellung des gegenwärtigen Saldos) and the current account balance receivable   (Kontokorrentsaldoanspruch)) and the right to terminate (Kündigungsrecht) such   Current Account Arrangement.   1.2 Construction   (a) In this Agreement 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;    





 







4   AVAYA Global Assignment Agreement (#283646FRA)   (ii) "hereby", "herein", "hereof", "hereunder" and "herewith", and   words of similar import, shall be construed to refer to this Agreement   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 Agreement:   (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 Agreement.   (b) The headings in this Agreement are for ease of reference only and shall not   affect the interpretation of this Agreement.   1.4 This Agreement is made in the English language. For the avoidance of doubt, the   English language version of this Agreement shall prevail over any translation of this   Agreement. However, where a German translation of an English word or phrase   appears in the text of this Agreement, 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 Agreement   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.    





 







5   AVAYA Global Assignment Agreement (#283646FRA)   2. ASSIGNMENT OF RECEIVABLES   2.1 Each Assignor hereby assigns the Receivables and all accessory security rights   (akzessorische Sicherheiten) and ancillary rights (Neben-, Hilfs- und Vorzugsrechte)   pursuant to (including by way of analogy) § 401 of the German Civil Code   (Bürgerliches Gesetzbuch, "BGB") pertaining thereto to the Administrative Agent   (the "Assignment").   2.2 The Administrative Agent hereby accepts the Assignment.   2.3 The existing Receivables shall pass over to the Administrative Agent on execution of   this Agreement, and any future Receivables shall pass over to the Administrative   Agent when such Receivables come into existence.   3. TRANSFER OF INDEPENDENT ANCILLARY RIGHTS   To the extent that the Independent Ancillary Rights which have been granted in   respect of certain Receivables do not transfer to the Administrative Agent, the   Administrative Agent may request at any time and at its sole discretion the   assignment and/or transfer (as the case may be) of such Independent Ancillary Rights.   4. SECURITY PURPOSE OF ASSIGNMENT   4.1 The Assignment is constituted in order to secure the prompt and complete satisfaction   of any and all Secured Obligations.   4.2 The Assignment shall also cover any additional Secured Obligations created in the   future, including those resulting from additional facilities under any Loan Document   or future extensions or increases of existing facilities, and any other increase in   principal or any increase in interest, including by means of amendment, restatement or   novation of, or supplement to, any Loan Document.   5. LISTS OF RECEIVABLES AND INSURANCES   5.1 Each Assignor shall deliver to the Administrative Agent:   (a) within 45 (forty five) calendar days after the end of each calendar quarter:   (i) lists setting out the Receivables as of the end of such calendar quarter;   (ii) a list setting out the Insurances as of the end of such calendar quarter;   (iii) a list setting out the Intra-Group Agreements as of the end of such   calendar quarter;   (iv) a list setting out the Current Account Arrangements of the end of such   calendar quarter; and   (b) upon the occurrence and during to the continuance of an Event of Default, at   any time if so reasonably requested by the Administrative Agent, setting out   the Receivables and/or the Insurances as of a date specified by the   Administrative Agent.    





 







6   AVAYA Global Assignment Agreement (#283646FRA)   The lists referred to above (or any of them) shall be on a readable and compatible CD,   DVD or other electronic data storage medium or in such other form as agreed between   the Administrative Agent and the Assignor and shall be in a format readily and easily   accessible for the Administrative Agent.   5.2 Unless otherwise agreed, the lists referred to in Clause 5.1 shall show in relation to   Receivables and Insurances:   (a) the names and addresses of the debtors as well as any outstanding amounts   and the due dates for payment; and   (b) all unpaid counter claims (being such counter claims invoiced (in Rechnung   gestellt) or otherwise asserted (geltend gemacht) by the other party or   otherwise known to the relevant Assignor), if any, which arise from contracts   between the relevant Assignor and the relevant debtors, and shall state the   exact amount of such unpaid claim, the maturity date and the name of the   respective debtor.   5.3 The lists of Receivables and of the Insurances referred to in this Clause 5 shall be for   information purposes only and shall not be deemed to be a representation or warranty   to the accuracy or completeness thereof. If for any reason whatsoever the relevant   Receivables or Insurances are not, or are incompletely, contained in such list, the   assignment of the Receivables shall not be affected thereby.   5.4 If any Assignor employs a third party for its bookkeeping and/or data-processing upon   the occurrence of an Event of Default which is continuing, each Assignor hereby   irrevocably authorises the Administrative Agent to obtain any information about and   relating to the Receivables directly from such third party at the relevant Assignor's   costs and expenses.   6. NOTICE OF ASSIGNMENT   6.1 Unless otherwise agreed by the Administrative Agent, each Assignor shall promptly   notify by registered mail (Einschreiben mit Rückschein) the relevant debtors and the   insurers of the assignment of the Intra-Group Receivables and the Insurance   Receivables constituted hereunder in the form set out in Schedule 4 (Form of Notice   for a Disclosed Assignment), but not later than within 5 (five) Business Days after the   date hereof or, with respect to Intra-Group Receivables and the Insurance Receivables   arising from future Intra-Group Agreements or future insurance agreements within 5   (five) Business Days after the date of entry into such agreement. Each Assignor shall   promptly send a copy of each dispatched notification letter together with the return   receipt (Rückschein) to the Administrative Agent, but not later than within 10 (ten)   Business Days after the date of the relevant notification letter.   6.2 Each Assignor shall (i) procure that the debtors of the Intra-Group Receivables and (ii)   use its reasonable efforts to procure that the insurers acknowledge each notice of   assignment and accept the terms of such assignment as set out in Schedule 4 (Form of   Notice for a Disclosed Assignment). Each Assignor shall provide evidence to the   Administrative Agent of any such acknowledgement received during any calendar   quarter within 10 (ten) Business Days after the end thereof.    





 







7   AVAYA Global Assignment Agreement (#283646FRA)   6.3 Each Assignor shall deliver to the Administrative Agent 5 (five) undated notification   letters in the form of Schedule 5 (Form of Blank Notification Letter), each executed in   blank within 5 (five) Business Days after the date hereof. Each Assignor authorises   the Administrative Agent to copy and date such blank notification letters following   the occurrence of an Event of Default which is continuing.   6.4 Without prejudice to the obligations imposed on the Assignors in this Clause 6, each   Assignor hereby authorises the Administrative Agent and releases it for this purpose   from the restrictions imposed by § 181 BGB to notify each debtor and insurer on its   behalf of this Agreement and the assignment of the Intra-Group Receivables and the   Insurance Receivables in such form as the Administrative Agent deems appropriate.   7. RECEIVABLES UNDER EXTENDED RETENTION OF TITLE   ARRANGEMENTS   7.1 If Receivables are assigned pursuant to this Agreement which are subject to extended   retention of title arrangements (verlängerter Eigentumsvorbehalt), the assignment   shall only become effective upon the termination (Erlöschen) of such extended   retention of title arrangement. As long as any person is only partly entitled to the   Receivables as a result of such person's retention of title arrangement, the assignment   of such Receivables to the Administrative Agent hereunder shall be limited to the part   of the relevant Receivables to which the relevant Assignor is entitled. The remaining   part of the relevant Receivables will be assigned to the Administrative Agent at such   time as that part is no longer affected by any extended retention of title arrangement.   7.2 Each Assignor hereby assigns to the Administrative Agent its right to reassignment of   Receivables assigned to a person by reason of an extended retention of title   arrangement as well as any contingent claims to the transfer of all proceeds paid to   such person, together with all rights pertaining thereto. The same applies to any   possible inchoate right (Anwartschaftsrecht) with respect to the assignment of any   Receivables which are subject to a dissolving condition (auflösende Bedingung). The   Administrative Agent hereby accepts such assignments.   7.3 The Administrative Agent may at any time after an Event of Default which is   continuing terminate any retention of title arrangement on behalf of the relevant   Assignor by discharging the respective liability of the relevant Assignor towards the   relevant supplier. Each Assignor will reimburse the Administrative Agent for any   costs and expenses so incurred in accordance with Section 10.04 of the Credit   Agreement.   8. CHECKS AND BILLS OF EXCHANGE   8.1 If payments in respect of the Receivables are made by check or bill of exchange, the   ownership in the documents shall pass to the Administrative Agent upon any Assignor   acquiring such ownership, and the relevant Assignor hereby assigns its present and   future rights arising therefrom as security for the Secured Obligations to the   Administrative Agent. Each Assignor will hold any checks and bills of exchange in   gratuitous custody (unentgeltliche Verwahrung) for the Administrative Agent or, if   the relevant Assignor does not obtain actual possession of such documents, each   Assignor hereby assigns to the Administrative Agent all of its present and future    





 







8   AVAYA Global Assignment Agreement (#283646FRA)   claims for delivery thereof against third parties as security for the Secured Obligations.   The Administrative Agent accepts such transfers and/or assignments.   8.2 Following an Event of Default which is continuing, each Assignor shall endorse any   such cheques and bills of exchange and shall promptly deliver them to the   Administrative Agent.   9. COLLECTION OF RECEIVABLES BY THE ASSIGNORS   Each Assignor is hereby authorised by the Administrative Agent to collect the   Receivables (ermächtigt zur Einziehung) in its own name and for its own account and   to exercise any rights and claims in relation to the Receivables (the "Authorisation").   In doing so, each Assignor shall act with the care of a prudent businessman (Sorgfalt   eines ordentlichen Kaufmanns). The Administrative Agent may revoke the   Authorisation at any time after the occurrence of an Event of Default which is   continuing.   10. REPRESENTATIONS   Each Assignor 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 in all material   respects as at the date hereof:   10.1 at the date hereof each Assignor 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;   10.2 to the best of its knowledge: except for extended retention of title arrangements   (verlängerter Eigentumsvorbehalt) the Receivables are assignable (abtretbar), can be   freely assigned by the relevant Assignor and are not in any way encumbered or   subject to any rights of third parties, or if the assignment of Receivables is restricted (i)   the respective debtor has consented to the assignment (which has to be proven by the   relevant Assignor to the Administrative Agent upon reasonable request) or (ii)   pursuant to § 354a HGB, the exclusion or limitation of such assignment does not   affect the validity of Assignment;   10.3 to the best of its knowledge, the existing Trade Receivables listed in Schedule 1 (List   of Trade Receivables) and originating from contracts with its German customers are   governed by German law;   10.4 the termination right (Kündigungsrecht) regarding any Current Account Arrangement   has neither been waived nor in any way restricted;   10.5 to the best of its knowledge: except for extended retention of title arrangements   (verlängerter Eigentumsvorbehalt) each Assignor is the sole unrestricted owner of the   Receivables and no other person is entitled to any Collateral as joint creditor   (Gesamtgläubiger) or co-creditor (Mitgläubiger).    





 







9   AVAYA Global Assignment Agreement (#283646FRA)   10.6 the information contained in Schedule 1 (List of Trade Receivables) to Schedule 3   (Existing Intra-Group Receivables) is accurate and complete in all material respects.   10.7 it has the corporate power and authority to enter into this Agreement, and all   necessary authorisations to entitle the relevant Assignor to enter into this Agreement   have been obtained and are in full force and effect;   10.8 the Administrative Agent will have as security for any and all Secured Obligations, a   validly perfected first-priority security interest (subject to any Permitted Lien) in the   Receivables of the relevant Assignor; and   10.9 the Assignment created under this Agreement is enforceable without enforceable   judgment or other instrument (vollstreckbarer Titel).   11. UNDERTAKINGS   During the term of this Agreement, each Assignor undertakes to the Administrative   Agent:   11.1 unless otherwise explicitly permitted under this Agreement or the Credit Agreement   or with the Administrative Agent's prior written consent, not to sell, transfer assign or   otherwise dispose of any of the Receivables;   11.2 not to encumber, permit to subsist, create or agree to create any other security interest   or third party right in or over the Receivables except as set out in this Agreement or as   explicitly permitted by the Credit Agreement;   11.3 to the extent required by the other Loan Documents: to ensure that any payment in   respect of any Receivable is made into a bank account which has been pledged in   favour of the Administrative Agent;   11.4 to refrain from any acts or omissions, the purpose or effect of which is or would be   the Receivables ceasing to be assignable or subjecting any Receivables to any law   other than German law;   11.5 not to take or participate in any action which would for any other reason defeat,   impair or circumvent the rights of the Pledgees, except in each case as otherwise   permitted hereunder or with the prior written consent of the Administrative Agent;   11.6 at its own expense, if requested by the Administrative Agent, to defend its title or   interest in the Receivables, and the security interest of the Administrative Agent   created hereunder and the priority thereof, in each case against any and all liens   (including Pfändungen but other than liens permitted pursuant to the Credit   Agreement), however arising, of all Persons whomsoever;   11.7 to conduct all legal actions and to take all actions, at its own costs and expenses, that   the Administrative Agent reasonably requests for the creation, perfection,   maintenance, protection, continuance or enforcement of the security interests and any   of the rights purported to be created hereunder.    





 







10   AVAYA Global Assignment Agreement (#283646FRA)   12. ENFORCEMENT   At any time after the occurrence of an Event of Default which is continuing, the   Administrative Agent shall be entitled to (i) revoke the Authorisation, (ii) terminate   (kündigen) any Current Account Arrangements, (iii) notify the debtors of any   Receivables (for the avoidance of doubt, such restriction does not apply to a notice to   be given to debtors of Insurance Receivables and Intra-Group Receivables which can   be notified prior to the occurrence of an Event of Default), (iv) enforce its rights under   this Agreement, and (v) arrange for the collection of the Receivables for and on behalf   of the Secured Parties to the extent necessary to satisfy any outstanding Secured   Obligations.   12.1 Except, for the avoidance of doubt, with regard to the disclosure of any Assignment   with regard to Insurance Receivables and Intra-Group Receivables, the Administrative   Agent will notify the relevant Assignor at least 5 (five) Business Days prior to the   enforcement of the assigned Receivables (or any of them). No such notification shall   be required if it were unsuitable under the circumstances (untunlich), in particular if (i)   the relevant Assignor has generally ceased to make payments (Zahlungseinstellung),   (ii) an application for the institution of insolvency proceedings has been filed by or   against the relevant Assignor (Antrag auf Eröffnung eines Insolvenzverfahrens) or   insolvency proceedings have been opened (Eröffnung eines Insolvenzverfahrens)   against the relevant Assignor, unless in case of an application filed against it, such   application is obviously abusive, or (iii) compliance with the notice period would   have an adverse effect on the enforcement and realisation of the assigned Receivables.   Each Assignor hereby expressly agrees that these notice provisions are sufficient and   the Administrative Agent shall not be obliged to deliver any further notices or proof to   the relevant Assignor prior to the realisation of the assigned Receivables.   12.2 To the extent that the Authorisation is revoked, the Administrative Agent may request   to receive all relevant documents relating to the Receivables and each Assignor   hereby agrees to promptly comply with any such request.   12.3 After the occurrence of an Event of Default which is continuing, the Administrative   Agent may collect the Receivables in total or in part to the extent necessary to satisfy   any outstanding Secured Obligations, it being understood that the Administrative   Agent shall apply the proceeds of such realisation towards the Secured Obligations in   accordance with the relevant provision of the Credit Agreement.   12.4 After the occurrence of an Event of Default which is continuing, the Administrative   Agent may request the Assignors to collect the Receivables for and on behalf of the   Administrative Agent and in accordance with the Administrative Agent's instruction.   Each Assignor shall promptly comply with such request.   12.5 If the Administrative Agent collects any Receivables pursuant to Clause 12.3 above   (Enforcement), it may take all measures and enter into all agreements with debtors   that it considers to be expedient. In particular, the Administrative Agent may grant   discounts or indulgence to any debtors and/or enter into settlement agreements of any   kind in relation to existing Receivables at any time.    





 







11   AVAYA Global Assignment Agreement (#283646FRA)   12.6 The Administrative Agent may, in its sole discretion, determine which of several   security interests (created under this Agreement or elsewhere) shall be used to satisfy   the Secured Obligations.   12.7 Given the non-accessory nature of the Security created hereunder, none of the   Assignors has defences of revocation and set-off and nor defences based on defences   any Loan Party might have against the Secured Obligations. The Administrative   Agent is not required to proceed against or enforce any other rights or security before   enforcing the security interest created hereunder.   13. LIMITATIONS ON ENFORCEMENT   13.1 Notwithstanding anything to the contrary in this Agreement or any other Loan   Document, if and to the extent that any managing director (Geschäftsführer) of an   Assignor (or, in case of Assignor 1, of its general partner) demonstrates in writing to   the Administrative Agent by way of providing a certificate accompanied with   background information reasonably satisfactory to the Administrative Agent (acting   reasonably) that enforcement of the collateral created hereunder in respect of any   Cross- and Upstream Liability Obligation were to cause personal liability of such   managing director based on mandatory restrictions imposed by German law relating   to up-stream and cross-stream guarantees and/or collateral and/or payment, the   Administrative Agent shall only be entitled to enforce the collateral created hereunder   in respect of the Cross- and Upstream Liability Obligation up to the amount at which   no such personal liability (as demonstrated by the managing director) would occur. In   the event that the Administrative Agent is so restricted in enforcement of the   collateral granted hereunder pursuant to this Clause, the relevant Assignor shall take   all reasonable measures to mitigate the effect of such limitation and inform the   Administrative Agent of any such measures accordingly. The relevant Assignor shall   at any time, upon the Administrative Agent's reasonable request, provide the   Administrative Agent with further and updated evidence showing whether and to   which extent its financial condition has improved. The Administrative Agent shall at   all times remain entitled (acting reasonably) to further enforce the collateral created   hereunder in respect of the Cross- and Upstream Liability Obligation as and when the   financial condition of the relevant Assignor improves.   13.2 Any evidence relating to financial information delivered by the relevant Assignor in   connection with Clause 13.1 above shall be prepared in accordance with the   provisions of the HGB consistently applied by the relevant Assignor (or in case of   Assignor 1, by its general partner) in preparing its unconsolidated balance sheets   (Jahresabschluss) according to § 42 GmbHG, §§ 242, 264 HGB in the previous years,   save that (i) loans provided to the relevant Assignor by its parent or any of its parent's   subsidiaries shall be disregarded, if and to the extent that such loans are subordinated   or are considered subordinated by law or by contract at least to the rank pursuant to §   39 (1) No. 5 InsO and (ii) loans or other contractual liabilities incurred by the relevant   Assignor in breach of this Agreement or any other Loan Document shall not be taken   into account as liabilities.   13.3 “Cross- and Upstream Liability Obligations” means any guarantee and indemnity   or joint and several liability which secures any obligations owed by any other Loan   Party who is an affiliated company (verbundenes Unternehmen) within the meaning   of § 15 German Stock Corporation Act (Aktiengesetz) (in each case other than a direct    





 







12   AVAYA Global Assignment Agreement (#283646FRA)   or indirect subsidiary of the relevant Assignor). For the avoidance of doubt, any   guarantee and indemnity or joint and several liability which secures any obligations   owed in respect of (x) loans to the extent they are on-lent to the relevant Assignor or   any of its direct or indirect subsidiaries and such amount is not repaid or (y) bank   guarantees, letters of credit or any other financial or monetary instrument issued for   the benefit of any of the creditors of the relevant Assignor or any of its direct or   indirect subsidiaries shall not constitute Cross- and Upstream Liability Obligations.   14. BOOKKEEPING AND DATA PROCESSING   14.1 Each Assignor hereby assigns to the Administrative Agent, who hereby accepts such   assignment, any right it has against any third party (in particular any bookkeeping   firm or tax consultant) in respect of the return of any means of evidence or documents   which the relevant Assignor has handed over to such third party and which are   necessary to identify the Receivables. Each Assignor undertakes to instruct any such   third party, upon the occurrence of an Event of Default which is continuing, to   provide the Administrative Agent upon first demand with such information, proof and   documents which are necessary to check, assess and/or enforce the security interest   created hereby.   14.2 Upon the occurrence of an Event of Default which is continuing, each Assignor shall   allow the Administrative Agent access to any electronic data-processing system,   including peripheral equipment, in which any data concerning the Receivables or any   part thereof have been stored at all reasonable times during normal business hours and   upon reasonable advance notice. Moreover, each Assignor shall provide any   assistance required to the Administrative Agent (including by making software   operators available). Each Assignor hereby assigns to the Administrative Agent, who   hereby accepts such assignment, all its rights against any third party which handles   the electronic processing of data concerning the Receivables and undertakes to   instruct any such third party, upon a respective demand of the Administrative Agent   following the occurrence of an Event of Default which is continuing, to handle the   processing of data for the Administrative Agent as it did for the relevant Assignor   provided that the relevant Assignor shall continue to be given access to any data it   requires in its ordinary course of business.   14.3 The Administrative Agent authorises each Assignor to exercise the rights assigned to   the Administrative Agent pursuant to Clauses 14.1 above and 14.2 above at all times   prior to the occurrence of an Event of Default which is continuing.   15. RECOURSE CLAIMS   No Assignor shall at any time before, on or after an enforcement of the assigned   Receivables, and/or as a result of any Assignor entering into this Agreement, have any   recourse claims (Rückgriffsansprüche) (including those on the basis of unjust   enrichment (ungerechtfertigte Bereicherung)) or be entitled to demand   indemnification or compensation from any Loan Party or any of the relevant Loan   Party's affiliates or to assign any of these claims. Each Assignor hereby irrevocably   waives (Verzicht auf Rückgriffsansprüche) and, to the extent any rights or claims are   not covered by such waiver, agrees not to exercise (pactum de non petendo) any rights   or claims that may pass to, or are otherwise established or created for the benefit of,    





 







13   AVAYA Global Assignment Agreement (#283646FRA)   the relevant Assignor by subrogation or otherwise, including any recourse claim   against any Loan Party as a result of:   (a) the repayment by the relevant Assignor of any debt or the satisfaction of any   other obligation of that Loan Party under any of the Loan Documents; or   (b) the enforcement of any of the assigned Receivables (or any part thereof).   16. COSTS AND EXPENSES   Sections 10.04 and 10.05 of the Credit Agreement shall apply accordingly as   explicitly set out in this Agreement.   17. INDEMNITY   Section 10.05 of the Credit Agreement shall apply accordingly as explicitly set out in   this Agreement.   18. DURATION AND INDEPENDENCE   18.1 This Agreement shall remain in full force and effect until complete satisfaction of the   Secured Obligations. The security interest created hereunder shall not cease to exist if   the Secured Obligations have only temporarily been discharged.   18.2 This Agreement shall create a continuing security interest and no amendment,   novation, restatement, supplement, supersession, extension or other modification   whatsoever in the Credit Agreement or in any document or agreement related to the   Credit Agreement shall affect the validity, enforceability or the scope of this   Agreement nor the obligations that are imposed on the Assignors pursuant to it.   18.3 This Agreement is independent from any other security interest that may have been or   will be given to the Secured Parties (including the Administrative Agent). Such other   security interest shall not prejudice, shall not be prejudiced by, and shall not be   merged in any way with this Agreement.   18.4 Waiving § 418 BGB, each Assignor hereby agrees that the security interest created   hereunder shall not be affected by any transfer or assumption of the Secured   Obligations to, or by, any third party.   19. RELEASE OF SECURITY (SICHERHEITENFREIGABE)   19.1 Upon complete satisfaction of the Secured Obligations, the Administrative Agent will   without undue delay, at the costs and expenses of the Assignor, reassign to the   relevant Assignor the Receivables and surrender the excess proceeds, if any, resulting   from any realisation of the Receivables. The Administrative Agent will, however,   transfer any of the Receivables or excess proceeds to a third person if so required by   mandatory, applicable law.   19.2 At any time when the total value of any and all Security granted by the Assignors and   any of the other Foreign Loan Parties to secure the Secured Obligations, which can be   expected to be realized in the event of an enforcement of any and all Security   (realisierbarer Wert), exceeds 110% of the Secured Obligations (the "Limit") not    





 







14   AVAYA Global Assignment Agreement (#283646FRA)   only temporarily, the Administrative Agent shall, on demand of the Assignors, release   such part of the Security (Sicherheitenfreigabe) as the Administrative Agent may in   its sole discretion determine so as to reduce the realizable value of the Security to the   Limit.   20. NOTICES AND LANGUAGE   20.1 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 Assignor 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 Assignor 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   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    





 







15   AVAYA Global Assignment Agreement (#283646FRA)   20.2 Proof of posting or dispatch of any notice or communication to any Assignor 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.   20.3 Any notice or other communication under or in connection with this Agreement 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).   21. PARTIAL INVALIDITY; WAIVER   21.1 Invalidity   21.2 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 Agreement, 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 Agreement had they considered the point at the time of conclusion of this   Agreement. § 139 BGB shall not at all apply.   21.3 Waiver   No failure to exercise, nor any delay in exercising, on the part of the Administrative   Agent, 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.   22. COUNTERPARTS AND CONCLUSION OF THIS AGREEMENT   22.1 This Agreement may be executed in any number of counterparts each of which when   so executed shall constitute one and the same Agreement.   22.2 This Agreement 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.   22.3 If the Agreement is to be concluded pursuant to Clause 22.2 (Counterparts and   Conclusion of this Agreement) above, each Party shall transmit its signed signature    





 







16   AVAYA Global Assignment Agreement (#283646FRA)   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 22.22   (Counterparts and Conclusion of this Agreement) above. The Agreement shall be   concluded as soon as all Parties to this Agreement as of the date hereof have received   signature pages of all other Parties (actually or in a form acknowledged by German   case law - Zugang). Promptly after receipt of all signature pages by the Parties, each   party to this Agreement shall confirm such receipt.   22.4 For the purposes of Clause 22.3 (Counterparts and Conclusion of this Agreement)   above, each Party authorises each Recipient by (counter)signing this Agreement 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).   22.5 For purposes of proof and confirmation only, the Administrative Agent may request   that one or several copies of this Agreement shall be originally signed by the Parties.   23. AMENDMENTS   Changes to and amendments of this Agreement, including this Clause 23, must be   made in writing.   24. ASSIGNS AND TRANSFEREES   This Agreement shall be binding upon the Parties and their respective successors in   law. The Administrative Agent shall be entitled to assign or otherwise transfer any   and all of its rights and duties under this Agreement to any third party in accordance   with the Credit Agreement. None of the Assignors shall be entitled to any such   assignment or transfer other than pursuant to a transaction permitted by the Credit   Agreement.   25. APPLICABLE LAW; JURISDICTION   25.1 Governing Law   This Agreement shall be governed by and construed in accordance with, the laws of   the Federal Republic of Germany.   25.2 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 Agreement; provided, however, that the Administrative Agent   shall also be entitled to take action against any of the Assignors in any other court of   competent jurisdiction and that the taking of proceedings against any Assignor in any   one or more jurisdictions shall not preclude the taking of proceedings in any other    





 







17   AVAYA Global Assignment Agreement (#283646FRA)   jurisdiction (whether concurrently or not) if and to the extent permitted by applicable   law.