Contract
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, Xxxxxxx & Xxxx LLP Xx xxx Xxxxx 0 00000 Xxxxxxxxx xx Xxxx Xxxxxxx Exhibit 10.15
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 Xxxxxxx-Xxxxx-Xxxxx 000, 00000 Xxxxxxxxx xx Xxxx, Xxxxxxx, 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 Xxxxxxx-Xxxxx-Xxxxx 000, 00000 Xxxxxxxxx xx Xxxx, Xxxxxxx, 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.
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.
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: Xxxxxxx-Xxxxx-Xxxxx 000, 00000 Xxxxxxxxx xx Xxxx, Xxxxxxx Telefax: (0049) (00) 0000 00000 Attention: Xxxxxxxx Xxxx Area Controller DACH to Assignor 2: AVAYA DEUTSCHLAND GMBH Address: Xxxxxxx-Xxxxx-Xxxxx 000, 00000 Xxxxxxxxx xx Xxxx, Xxxxxxx Telefax: (0049) (00) 0000 00000 Attention: Xxxxxxxx Xxxx Area Controller DACH in each case with copy to: Xxxxx Xxxxxxxx Address: c/o Avaya Inc. 0000 Xxxxx Xxxxxxxx Xxxxxxx Xxxxx Xxxxx, XX 00000 U.S.A. Xxxxxxx Xxx Address: ROPES & XXXX LLP Prudential Tower, 000 Xxxxxxxx Xxxxxx Xxxxxx, XX 00000-0000 U.S.A. to the Administrative Agent: CITIBANK, N.A. Address: Attention: 000 Xxxxxxxxx Xxxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 Xxxxxxx Xxxxxx Telephone: (001) (000) 000-0000 Telefax: (001) (000) 000-0000
17 AVAYA Global Assignment Agreement (#283646FRA) jurisdiction (whether concurrently or not) if and to the extent permitted by applicable law.