PARTIAL TERMINATION AGREEMENT dated as of July 12, 2022with respect to the Call Option Confirmations between JPMorgan Chase Bank, National Association, London Branch and Avaya Holdings Corp.
EXHIBIT 10.53
dated as of July 12, 2022 with respect to the Call Option Confirmations | ||
| between JPMorgan Chase Bank, National Association, London Branch and Avaya Holdings Corp. | ||
This PARTIAL TERMINATION AGREEMENT (this “Termination Agreement”) with respect to the Call Option Confirmations (as defined below) is made as of July 12, 2022 between JPMorgan Chase Bank, National Association, London Branch (“Dealer”) and Avaya Holdings Corp. (“Counterparty”).
WHEREAS, Counterparty issued $350,000,000 principal amount of 2.25% Convertible Senior Notes due 2023 the “Convertible Notes”) pursuant to an Indenture dated as of June 11, 2018 between Counterparty and The Bank of New York Mellon Trust Company, N.A., as trustee;
WHEREAS, Dealer and Counterparty are parties to (a) the base call option transaction (as amended, modified or supplemented, the “Base Call Option Transaction”) evidenced by the letter agreement between Dealer and Counterparty, dated June 6, 2018 (as amended, modified or supplemented, the “Base Call Option Confirmation”) and (b) the additional call option transaction (as amended, modified or supplemented, the “Additional Call Option Transaction” and together with the Base Call Option Transaction, the “Call Option Transactions”) evidenced by the letter agreement between Dealer and Counterparty, dated June 26, 2018 (as amended, modified or supplemented, the “Additional Call Option Confirmation” and together with the Base Call Option Confirmation, the “Call Option Confirmations”);
WHEREAS, Counterparty has requested, and Dealer has agreed, to terminate a portion of the Call Option Transactions representing 129,394 Options (the “Terminated Options”), allocated first to the Base Call Option Transaction (such portion, the “Terminated Portion”);
NOW, THEREFORE, in consideration of their mutual covenants contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby mutually covenant and agree as follows:
1.Defined Terms. Any capitalized term not otherwise defined herein shall have the meaning set forth for such term in the Call Option Confirmations.
2.Termination. Notwithstanding anything to the contrary in the Call Option Confirmations, Counterparty and Dealer agree that, effective on the date hereof,
a.the Terminated Portion of the Call Option Transactions shall be terminated, and in connection with the foregoing, (i) the Number of Options under the Base Call Option Confirmation shall be reduced by the Terminated Options (ii) all of the respective rights and obligations in respect of such Terminated Portion shall be cancelled and terminated, and (iii) each party shall be released and discharged by the other party, and agrees not to make any claim with respect to any obligations of the other party, in connection with such Terminated Portion;
b.no payment from Dealer to Counterparty shall be required in respect of the Terminated Portion of the Call Option Transactions; and
c.for the avoidance of doubt, the portion of each of the Call Option Transactions not constituting the Terminated Portion shall remain in full force and effect, and each party’s respective rights and obligations thereunder shall be unaffected by this Termination Agreement. The parties agree and acknowledge that after giving effect to this Termination Agreement, (i) the Number of Options under the Base Call Option Confirmation shall be 170,606 and (ii) the Number of Options under the Additional Call Option Confirmation shall be 50,000.
3.Representations and Warranties of Counterparty. Counterparty represents and warrants to Dealer on the date hereof that:
a.it is duly organized and validly existing under the laws of the jurisdiction of its organization or incorporation and, if relevant under such laws, in good standing;
b.it has the power to execute this Termination Agreement and any other documentation relating to this Termination Agreement to which it is a party, to deliver this Termination Agreement and each such other document (if any) and to perform its obligations hereunder and thereunder (as applicable) and has taken all necessary action to authorize such execution, delivery and performance;
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c.such execution, delivery and performance do not violate or conflict with any law applicable to it, any provision of its constitutional documents, any order or judgment of any court or other agency of government applicable to it or any of its assets or any contractual restriction binding on or affecting it or any of its assets;
d.all governmental and other consents that are required to have been obtained by it with respect to this Termination Agreement have been obtained and are in full force and effect and all conditions of any such consents have been complied with;
e.its obligations under this Termination Agreement constitute its legal, valid and binding obligations, enforceable in accordance with their respective terms (subject to applicable bankruptcy, reorganization, insolvency, moratorium or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application (regardless of whether enforcement is sought in a proceeding in equity or at law));
f.neither it nor any of its affiliates is in possession of any material nonpublic information regarding Counterparty or the Shares;
g.it (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least $50 million;
h.it is not entering into this Termination Agreement to create actual or apparent trading activity in the Shares (or any security convertible into or exchangeable for the Shares) or to raise or depress or otherwise manipulate the price of the Shares (or any security convertible into or exchangeable for the Shares) or otherwise in violation of the Exchange Act;
i.on the date hereof, it remains a party to the Call Option Transactions to the full extent as on the date of execution thereof and it has not assigned, purported to assign or made any attempt to assign, any interest in the Call Option Transactions to any third party; and
j.it is not on the date hereof engaged in a distribution, as such term is used in Regulation M under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), of any securities of Counterparty, other than a distribution meeting the requirements of the exception set forth in Rules 101(b)(10) and 102(b)(7) of Regulation M, and shall not, until the second Scheduled Trading Day immediately following the date hereof, engage in any such distribution.
4.Representations and Warranties of Dealer. Dealer represents and warrants to Counterparty on the date hereof that:
a.it is duly organized and validly existing under the laws of the jurisdiction of its organization or incorporation and, if relevant under such laws, in good standing;
b.it has the power to execute this Termination Agreement and any other documentation relating to this Termination Agreement to which it is a party, to deliver this Termination Agreement and each such other document (if any) and to perform its obligations hereunder and thereunder (as applicable) and has taken all necessary action to authorize such execution, delivery and performance;
c.such execution, delivery and performance do not violate or conflict with any law applicable to it, any provision of its constitutional documents, any order or judgment of any court or other agency of government applicable to it or any of its assets or any contractual restriction binding on or affecting it or any of its assets;
d.all governmental and other consents that are required to have been obtained by it with respect to this Termination Agreement have been obtained and are in full force and effect and all conditions of any such consents have been complied with;
e.its obligations under this Termination Agreement constitute its legal, valid and binding obligations, enforceable in accordance with their respective terms (subject to applicable bankruptcy, reorganization, insolvency, moratorium or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application (regardless of whether enforcement is sought in a proceeding in equity or at law)); and
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f.on the date hereof, it remains a party to the Call Option Transactions to the full extent as on the date of execution thereof and it has not assigned, purported to assign or made any attempt to assign, any interest in the Call Option Transactions to any third party.
5.Notices. For purposes of this Termination Agreement, the addresses for notices or communications to the parties shall be as set forth in the Call Option Confirmations:
6.[Reserved]
7.Disclosure. Notwithstanding anything provided in this Termination Agreement or the Call Option Confirmations, effective from the date of commencement of discussions concerning the Call Option Transactions, Counterparty and each of its employees, representatives, or other agents may disclose to any and all persons, without limitation of any kind, the tax treatment and tax structure of the Call Option Transactions and this Termination Agreement and all materials of any kind (including opinions or other tax analyses) that are provided to Counterparty relating to such tax treatment and tax structure.
8.No Reliance, etc. Counterparty hereby confirms that it has relied on the advice of its own counsel and other advisors (to the extent it deems appropriate) with respect to any legal, tax, accounting, or regulatory consequences of this Termination Agreement, that it has not relied on Dealer or its affiliates in any respect in connection therewith, and that it will not hold Dealer or its affiliates accountable for any such consequences.
9.Designation by Dealer. Notwithstanding any other provision in this Termination Agreement to the contrary requiring or allowing Dealer to purchase, sell, receive or deliver any Shares or other securities to or from Counterparty, Dealer may designate any of its affiliates to purchase, sell, receive or deliver such shares or other securities and otherwise to perform Dealer obligations in respect of the transactions contemplated by this Termination Agreement and any such designee may assume such obligations. Dealer shall be discharged of its obligations to Counterparty to the extent of any such performance.
10.Governing Law. THIS TERMINATION AGREEMENT AND ALL MATTERS ARISING IN CONNECTION WITH THIS TERMINATION AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (WITHOUT REFERENCE TO ITS CHOICE OF LAW DOCTRINE, OTHER THAN TITLE 14 OF THE NEW YORK GENERAL OBLIGATIONS LAW).
11.Waiver of Jury Trial. Each party waives, to the fullest extent permitted by applicable law, any right it may have to a trial by jury in respect of any suit, action or proceeding relating to this Termination Agreement. Each party (i) certifies that no representative, agent or attorney of the other party has represented, expressly or otherwise, that such other party would not, in the event of such a suit, action or proceeding, seek to enforce the foregoing waiver and (ii) acknowledges that it and the other party have been induced to enter into this Termination Agreement, as applicable, by, among other things, the mutual waivers and certifications provided herein.
12.Amendment. This Termination Agreement may not be modified, amended or supplemented, except in a written instrument signed by each party hereto.
13.Counterparts. This Termination Agreement may be executed in several counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument.
14.Communications with Employees of X.X. Xxxxxx Securities LLC. If Counterparty interacts with any employee of X.X. Xxxxxx Securities LLC with respect to any Call Option Transaction or this Termination Agreement, Counterparty is hereby notified that such employee will act solely as an authorized representative of JPMorgan Chase Bank, N.A. (and not as a representative of X.X. Xxxxxx Securities LLC) in connection with such Call Option Transaction or this Termination Agreement, as applicable.
15.US Resolution Stay Protocol. The Call Option Confirmations shall be amended by including the following as clause (z) of Section 9 of each Confirmation:
“(z) US Resolution Stay. The parties acknowledge and agree that (i) to the extent that prior to the date hereof both parties have adhered to the 2018 ISDA U.S. Resolution Stay Protocol (the “Protocol”), the terms of the Protocol are incorporated into and form a part of the Agreement, and for such purposes the Agreement shall be deemed a Protocol Covered Agreement, Dealer shall be deemed a Regulated Entity and Counterparty shall be deemed an Adhering Party; (ii) to the extent that prior to the date hereof the parties have executed a separate agreement the effect of which is to amend the qualified financial contracts between them to conform with the requirements of the QFC Stay Rules (the “Bilateral Agreement”), the terms of the Bilateral Agreement are incorporated into and form a part of the Agreement, and for such purposes the Agreement shall be deemed a Covered Agreement, Dealer shall be deemed a Covered Entity and Counterparty shall be deemed a
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Counterparty Entity; or (iii) if clause (i) and clause (ii) do not apply, the terms of Section 1 and Section 2 and the related defined terms (together, the “Bilateral Terms”) of the form of bilateral template entitled “Full-Length Omnibus (for use between U.S. G-SIBs and Corporate Groups)” published by ISDA on November 2, 2018 (currently available on the 2018 ISDA U.S. Resolution Stay Protocol page at xxx.xxxx.xxx and, a copy of which is available upon request), the effect of which is to amend the qualified financial contracts between the parties thereto to conform with the requirements of the QFC Stay Rules, are hereby incorporated into and form a part of the Agreement, and for such purposes the Agreement shall be deemed a “Covered Agreement,” Dealer shall be deemed a “Covered Entity” and Counterparty shall be deemed a “Counterparty Entity.” In the event that, after the date of the Agreement, both parties hereto become adhering parties to the Protocol, the terms of the Protocol will replace the terms of this paragraph. In the event of any inconsistencies between the Agreement and the terms of the Protocol, the Bilateral Agreement or the Bilateral Terms (each, the “QFC Stay Terms”), as applicable, the QFC Stay Terms will govern. Terms used in this paragraph without definition shall have the meanings assigned to them under the QFC Stay Rules. For purposes of this paragraph, references to “the Agreement” include any related credit enhancements entered into between the parties or provided by one to the other. In addition, the parties agree that the terms of this paragraph shall be incorporated into any related covered affiliate credit enhancements, with all references to Dealer replaced by references to the covered affiliate support provider. “QFC Stay Rules” means the regulations codified at 12 C.F.R. 252.2, 252.81–8, 12 C.F.R. 382.1-7 and 12 C.F.R. 47.1-8, which, subject to limited exceptions, require an express recognition of the stay-and-transfer powers of the FDIC under the Federal Deposit Insurance Act and the Orderly Liquidation Authority under Title II of the Xxxx Xxxxx Wall Street Reform and Consumer Protection Act and the override of default rights related directly or indirectly to the entry of an affiliate into certain insolvency proceedings and any restrictions on the transfer of any covered affiliate credit enhancements.”
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IN WITNESS WHEREOF, the parties have executed this Termination Agreement with effect from the date specified on the first page of this Termination Agreement.
JPMorgan Chase Bank, National Association
By: /s/ Xxxxxxx Xxxxxxxxxxx
Name: Xxxxxxx Xxxxxxxxxxx
Title: Managing Director
Name: Xxxxxxx Xxxxxxxxxxx
Title: Managing Director
By: /s/ Xxxxxx X. XxXxxxx
Name: Xxxxxx X. XxXxxxx
Title: Executive Vice President
& Chief Financial Officer
Name: Xxxxxx X. XxXxxxx
Title: Executive Vice President
& Chief Financial Officer
