ex107canadianguaranteefo







EXECUTION COPY   CANADIAN GUARANTEE   (FOREIGN ABL)   dated as of   June 4, 2015   among   AVAYA CANADA CORP.,   as Canadian Borrower,   and   CITIBANK, N.A.,   as Administrative Agent   LEGAL_23786304.9 CANADIAN GUARANTEE (FOREIGN ABL)   Exhibit 10.7    





 







EXECUTION COPY   TABLE OF CONTENTS   ARTICLE I   DEFINITIONS   Page   SECTION 1.01.   SECTION 1.02.   Credit Agreement   Other Defined Terms.   ARTICLE II   SECTION 2.01.   SECTION 2.02.   SECTION 2.03.   SECTION 2.04.   SECTION 2.05.   SECTION 2.06.   SECTION 3.01.   SECTION 3.02.   SECTION 3.03.   GUARANTEE   Guarantee 2   Guarantee of Payment 2   No Limitations 2   Reinstatement 3   Agreement To Pay; Subrogation 3   Information 4   ARTICLE III   INDEMNITY, SUBROGATION AND SUBORDINATION   Indemnity and Subrogation 4   Contribution and Indemnification 4   Subordination 5   ARTICLE IV   SECTION 4.01.   SECTION 4.02.   SECTION 4.03.   SECTION 4.04.   SECTION 4.05.   SECTION 4.06.   SECTION 4.07.   SECTION 4.08.   MISCELLANEOUS   Notices 5   Waivers; Amendment 5   Administrative Agent's Fees and Expenses, Indemnification 6   Survival of Representations and Warranties 6   Counterparts; Effectiveness; Successors and Assigns; Several   Agreement 6   Severability 7   Right of Set Off 7   Governing Law; Jurisdiction; Venue; Waiver of Jury Trial; Consent   to Service of Process 7   LEGAL 23786304.9 CANADIAN GUARANTEE (FOREIGN ABL)     





 







TABLE OF CONTENTS   (continued)   Page   SECTION 4.09. Headings 8   SECTION 4.10. Guarantee Absolute 8   SECTION4.il. Termination or Release 9   SECTION 4.12. Additional Guarantors 9   SECTION 4.13. Limitation on Guaranteed Obligations 9   SECTION 4.14. Instrument for the Payment of Money 10   SECTION 4.15. Continuing Guarantee 10   SECTION 4.16. Consent to Certain Provisions 10   u   LEGAL_23786304.9 CANADIAN GUARANTEE (FOREIGN ABL)     





 







EXECUTION COPY   GUARANTEE dated as of June 4, 2015, among AVAYA CANADA CORP., a   Nova Scotia unlimited liability company ("Canadian Borrower"), each other Person that exe   cutes a supplement attached hereto following the Closing Date and becomes a Guarantor hereun   der (collectively, the "Guarantors" and each a "Guarantor") and CITIBANK, N.A., as Admin   istrative Agent (as defined below).   Reference is made to the Credit Agreement dated as of even date herewith (as   amended, amended and restated, supplemented or otherwise modified from time to time, the   "Credit Agreement"), among, the Canadian Borrower, Avaya Deutschland GmbH and Avaya   GmbH & Co. KG (collectively, the "German Borrowers"), Avaya International Sales Limited   (the "Irish Borrower") and Avaya UK (the "UK Borrower"; and, together with the Canadian   Borrower, the German Borrowers and the Irish Borrower, collectively, the "Borrowers"), Citi   bank, N.A., as Administrative Agent and L/C Issuer, Citibank, N.A., Canadian Branch, as Cana   dian Swing Line Lender, Citibank, N.A., London Branch, as European Swing Line Lender and   each lender from time to time party thereto (collectively, the "Lenders" and, each, individually,   a "Lender"). The Lenders have agreed to extend credit to the Borrowers subject to the terms and   conditions set forth in the Credit Agreement. The obligations of the Lenders to extend such   credit are conditioned upon, among other things, the execution and delivery of this Guarantee.   The Canadian Borrower and each Person that may become party hereto are affiliates of the Bor   rowers, will derive substantial benefits from the extension of credit to the Borrowers pursuant to   the Credit Agreement and are willing to execute and deliver this Guarantee in order to induce the   Lenders to extend such credit. Accordingly, the parties hereto make the following representations   and warranties to the Administrative Agent for the benefit of the Secured Parties and hereby   covenant and agree as follows:   ARTICLE I   DEFINITIONS   SECTION 1.01. Credit Agreement.   (a) Capitalized terms used in this Guarantee and not otherwise defined herein   have the meanings specified in the Credit Agreement.   (b) The rules of construction specified in Article I of the Credit Agreement al   so apply to this Guarantee.   SECTION 1.02. Other Defined Terms. As used in this Guarantee, the following   terms have the meanings specified below:   "Administrative Agent" means Citibank, N.A., in its capacity as administrative   agent under any of the Loan Documents, or any successor administrative agent.   "Bankruptcy Laws" means the Companies Creditors Arrangement Act (Canada),   the Winding-up and Restructuring Act (Canada) and the Bankruptcy and Insolvency Act (Canada)   LEGAL_23786304.9 CANADIAN GUARANTEE (FOREIGN ABL)     





 







EXECUTION COPY   "Guarantee" means this Canadian guarantee agreement dated as of June 4, 2015,   among, inter alia, the Canadian Borrower and the Administrative Agent as amended modified or   supplemented from time to time.   "Guarantors" means Canadian Borrower, in its capacity as a guarantor under this   Guarantee, and each party that becomes a party to this Guarantee after the Closing Date.   "Guarantee Parties" means, collectively, the Borrowers (with the exception of the   Canadian Borrower) and each Guarantor and "Guarantee Party" means any one of them.   "Guarantee Supplement" means an instrument in the form of Exhibit I hereto.   ARTICLE II   GUARANTEE   SECTION 2.01. Guarantee. Each Guarantor irrevocably, absolutely and uncon   ditionally guaranties, jointly with the other Guarantors, if any, and severally, the due and punctu   al payment of the Obligations, in each case, whether such Obligations are now existing or hereaf   ter incurred under, arising out of any Loan Document whether at stated maturity or earlier, by   reason of acceleration, mandatory prepayment or otherwise in accordance herewith or with any   other Loan Documents. Each of the Guarantors further agrees that the Obligations may be ex   tended, increased or renewed, in whole or in part, without notice to or further assent from it, and   that it will remain bound upon its guarantee notwithstanding any extension, increase or renewal,   in whole or in part, of any Obligation. To the extent permitted by applicable law, each of the   Guarantors waives presentment to, demand of payment from and protest to any Guarantee Party   of any of the Obligations, and also waives notice of acceptance of its guarantee and notice of   protest for nonpayment.   SECTION 2.02. Guarantee of Payment. Each of the Guarantors further agrees   that its guarantee hereunder constitutes a guarantee of payment when due and not of collection,   and, to the extent permitted by applicable law, waives any right to require that any resort be had   by the Administrative Agent or any other Secured Party to any security held for the payment of   the Obligations, or to any balance of any deposit account or credit on the books of the Adminis   trative Agent or any other Secured Party in favor of the Borrowers or any other Person.   SECTION 2.03. No Limitations.   (a) To the extent required by applicable law, except for termination of a   Guarantor's obligations hereunder as expressly provided in Section 4.11, the obligations of each   Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination   LEGAL_23786304.9 CANADIAN GUARANTEE (FOREIGN ABL)     





 







EXECUTION COPY   for any reason, including any claim of waiver, release, surrender, alteration or compromise, and   shall not be subject to any defense or set-off, counterclaim, recoupment or termination whatso   ever by reason of the invalidity, illegality or unenforceability of the Obligations, or otherwise.   Without limiting the generality of the foregoing, to the extent permitted by applicable law, the   obligations of each Guarantor hereunder shall not be discharged or impaired or otherwise affect   ed by (i) the failure of the Administrative Agent or any other Secured Party to assert any claim or   demand or to enforce any right or remedy under the provisions of any Loan Document or other   wise; (ii) any rescission, waiver, amendment or modification of, or any release from any of the   terms or provisions of, any Loan Document or any other agreement, including with respect to   any other Guarantor under this Guarantee; (iii) the release of any security held by the Adminis   trative Agent or any other Secured Party for the Obligations; (iv) any default, failure or delay,   willful or otherwise, in the performance of the Obligations; or (v) any other act or omission that   may or might in any manner or to any extent vary the risk of any Guarantor or otherwise operate   as a discharge of any Guarantor as a matter of law or equity (other than the payment in full in   cash of all the Obligations). Each Guarantor expressly authorizes the Secured Parties to take and   hold security from the Foreign Loan Parties for the Obligations, to exchange, waive or release   any or all such security (with or without consideration), to enforce or apply such security and   direct the order and manner of any sale thereof in their sole discretion or to release or substitute   any one or more other guarantors or obligors upon or in respect of the Obligations, all in accord   ance with the Loan Documents and all without affecting the obligations of any Guarantor here   under.   (b) To the fullest extent permitted by applicable law, each Guarantor waives   any defense based on or arising out of any defense of any Guarantee Party or the unenforceabil   ity of the Obligations, or any part thereof from any cause, or the cessation from any cause of the   liability of any Guarantee Party, other than the payment in full in cash of all the Obligations.   The Administrative Agent and the other Secured Parties, in accordance with the Loan Docu   ments, may compromise or adjust any part of the Obligations, make any other accommodation   with any Guarantee Party or exercise any other right or remedy available to them against any   Guarantee Party, without affecting or impairing in any way the liability of any Guarantor here   under except to the extent the Obligations have been paid in full in cash. To the fullest extent   permitted by applicable law, each Guarantor waives any defense arising out of any such election   even though such election operates, pursuant to applicable law, to impair or to extinguish any   right of reimbursement or subrogation or other right or remedy of such Guarantor against any   Guarantee Party, as the case may be.   SECTION 2.04. Reinstatement. Each of the Guarantors agrees that its guarantee   hereunder shall continue to be effective or be reinstated, as the case may be, if at any time pay   ment, or any part thereof, of any Obligation, is rescinded, invalidated or must otherwise be re   stored by the Administrative Agent or any other Secured Party upon the bankruptcy or reorgani   zation of any Guarantee Party or otherwise.   SECTION 2.05. Agreement To Pay; Subrogation. In furtherance of the forego   ing and not in limitation of any other right that the Administrative Agent or any other Secured   LEGAL_23786304.9 CANADIAN GUARANTEE (FOREIGN ABL)     





 







EXECUTION COPY   Party has at law or in equity against any Guarantor by virtue hereof, upon the failure of any   Guarantee Party to pay any Obligation when and as the same shall become due, whether at ma   turity, by acceleration, after notice of prepayment or otherwise, each Guarantor hereby promises   to and will forthwith pay, or cause to be paid, to the Administrative Agent for distribution to the   Secured Parties in cash the amount of such unpaid Obligation. Upon payment by any Guarantor   of any sums to the Administrative Agent as provided above, all rights of such Guarantor against   any Guarantee Party arising as a result thereof by way of right of subrogation, contribution, re   imbursement, indemnity or otherwise shall in all respects be subject to Article III herein.   SECTION 2.06. Information. Each Guarantor assumes all responsibility for be   ing and keeping itself informed of each Guarantee Party's financial condition and assets, and of   all other circumstances bearing upon the risk of nonpayment of the Obligations, and the nature,   scope and extent of the risks that such Guarantor assumes and incurs hereunder, and agrees that   none of the Administrative Agent or the other Secured Parties will have any duty to advise such   Guarantor of information known to it or any of them regarding such circumstances or risks.   ARTICLE III   INDEMNITY, SUBROGATION AND SUBORDINATION   SECTION 3.01. Indemnity and Subrogation. In addition to all such rights of in   demnity and subrogation as the Guarantors may have under applicable law (but subject to Sec   tion 3.03), each of the Borrowers agree that in the event a payment of an obligation shall be   made by any Guarantor under this Guarantee, the Borrowers, jointly and severally, shall indem   nify such Guarantor for the full amount of such payment and such Guarantor shall be subrogated   to the rights of the Person to whom such payment shall have been made to the extent of such   payment.   SECTION 3.02. Contribution and Indemnification.   To the extent that any Guarantor shall, under this Agreement as a joint and sever   al obligor, repay any of the Obligations (an "Accommodation Payment"), then the Guarantor   making such Accommodation Payment shall be entitled to contribution and indemnification from,   and be reimbursed by, each of the other Guarantors, in an amount equal to a fraction of such Ac   commodation Payment, the numerator of which fraction is such other Guarantor's Allocable   Amount and the denominator of which is the sum of the Allocable Amounts of all of the Guaran   tors. As of any date of determination, the "Allocable Amount" of each Guarantor shall be equal   to the maximum amount of liability for Accommodation Payments which could be asserted   against such Guarantor hereunder without (a) rendering such Guarantor an "insolvent person"   within the meaning of the Bankruptcy and Insolvency Act (Canada), (b) leaving such Guarantor   with unreasonably small capital or assets or (c) leaving such Guarantor unable to pay its debts as   they become due.   LEGAL_23786304.9 CANADIAN GUARANTEE (FOREIGN ABL)     





 







EXECUTION COPY   SECTION 3.03. Subordination.   (a) Notwithstanding any provision of this Guarantee to the contrary, all rights   of the Guarantors under Section 3.01 of this Guarantee, and all other rights of indemnity, contri   bution or subrogation under applicable law or otherwise shall be fully subordinated to the pay   ment in full in cash of the Obligations; provided that if any amount shall be paid to such Guaran   tor on account of such subrogation rights at any time prior to the payment in full of the Obliga   tions, such amount shall be held in trust for the benefit of the Secured Parties and shall forthwith   be paid to the Administrative Agent to be credited and applied against the Obligations, whether   matured or unmatured, in accordance with Section 8.03 of the Credit Agreement. No failure on   the part of any Borrower or any Guarantor to make the payments required by Section 3.01 (or   any other payments required under applicable law or otherwise) shall in any respect limit the ob   ligations and liabilities of any Guarantor with respect to its obligations hereunder, and each   Guarantor shall remain liable for the full amount of the obligations of such Guarantor hereunder.   ARTICLE IV   MISCELLANEOUS   SECTION 4.01. Notices. All communications and notices hereunder shall (ex   cept as otherwise expressly permitted herein) be in writing and given as provided in Section   10.02 of the Credit Agreement. All communications and notices hereunder to any Guarantor   shall be given to it in care of the Administrative Borrower as provided in Section 10.02 of the   Credit Agreement.   SECTION 4.02. Waivers; Amendment.   (a) No failure or delay by the Administrative Agent, any L/C Issuer or any   other Secured Party in exercising any right or power hereunder or under any other Loan Docu   ment shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or   power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude   any other or further exercise thereof or the exercise of any other right or power. The rights and   remedies of the Administrative Agent, the L/C Issuers and the other Secured Parties hereunder   and under the other Loan Documents are cumulative and are not exclusive of any rights or reme   dies that they would otherwise have. No waiver of any provision of this Guarantee or consent to   any departure by any Guarantee Party therefrom shall in any event be effective unless the same   shall be permitted by paragraph (b) of this Section 4.02, and then such waiver or consent shall be   effective only in the specific instance and for the purpose for which given. Without limiting the   generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be   construed as a waiver of any Default, regardless of whether the Administrative Agent, any Lend   er or any L/C Issuer may have had notice or knowledge of such Default at the time. No notice or   LEGAL_23786304.9 CANADIAN GUARANTEE (FOREIGN ABL)     





 







EXECUTION COPY   demand on any Guarantee Party in any case shall entitle any Guarantee Party to any other or fur   ther notice or demand in similar or other circumstances.   (b) Neither this Guarantee nor any provision hereof may be waived, amended   or modified except pursuant to an agreement or agreements in writing entered into by the Ad   ministrative Agent and the Guarantee Party or Guarantee Parties with respect to which such   waiver, amendment or modification is to apply, subject to any consent required in accordance   with Section 10.01 of the Credit Agreement.   SECTION 4.03. Administrative Agent's Fees and Expenses, Indemnification.   (a) The parties hereto agree that the Administrative Agent shall be entitled to   reimbursement of its expenses incurred hereunder and indemnity related hereto as provided in   Sections 10.04 and 10.05 of the Credit Agreement.   (b) Any such amounts payable as provided hereunder shall be additional Ob   ligations guaranteed hereby. The provisions of this Section 4.03 shall remain operative and in   full force and effect regardless of the termination of this Guarantee or any other Loan Document,   the consummation of the transactions contemplated hereby, the repayment of any of the Obliga   tions, the invalidity or unenforceability of any term or provision of this Guarantee or any other   Loan Document, or any investigation made by or on behalf of the Administrative Agent or any   other Secured Party. All amounts due under this Section 4.03 shall be payable within 10 Busi   ness Days of written demand therefor.   SECTION 4.04. Survival of Representations and Warranties. All representations   and warranties made hereunder and in any other Loan Document or other document delivered   pursuant hereto or thereto or in connection herewith or therewith shall survive the execution and   delivery hereof and thereof. Such representations and warranties have been or will be relied up   on by the Administrative Agent and each Lender, regardless of any investigation made by the   Administrative Agent or any Lender or on their behalf and notwithstanding that the Administra   tive Agent or any Lender may have had notice or knowledge of any Default at the time of any   Credit Extension and shall continue in full force and effect as long as any Loan or any other Ob   ligation shall remain unpaid or unsatisfied or any Letter of Credit shall remain outstanding, other   than any Letter of Credit that has been Cash Collateralized or, if satisfactory to the L/C Issuer in   its sole discretion, for which a backstop Letter of Credit is in place.   SECTION 4.05. Counterparts; Effectiveness; Successors and Assigns; Several   Agreement. This Guarantee may be executed in one or more counterparts, each of which shall   be deemed an original, but all of which together shall constitute one and the same instrument.   Delivery by facsimile or electronic transmission of an executed counterpart of a signature page to   this Guarantee shall be effective as delivery of an original executed counterpart of this Guarantee.   The Administrative Agent may also require that any such documents and signatures delivered by   facsimile or electronic transmission be confirmed by a manually signed original thereof; provid   ed that the failure to request or deliver the same shall not limit the effectiveness of any document   LEGAL_23786304.9 CANADIAN GUARANTEE (FOREIGN ABL)     





 







EXECUTION COPY   or signature delivered by facsimile or electronic transmission. This Guarantee shall become ef   fective as to any Guarantee Party when a counterpart hereof executed on behalf of such Guaran   tee Party shall have been delivered to the Administrative Agent and a counterpart hereof shall   have been executed on behalf of the Administrative Agent, and thereafter shall be binding upon   such Guarantee Party and the Administrative Agent and their respective successors and assigns   permitted thereby, and shall inure to the benefit of such Guarantee Party, the Administrative   Agent and the other Secured Parties and their respective successors and assigns permitted there   by, except that no Guarantee Party shall have the right to assign or transfer its rights or obliga   tions hereunder or any interest herein (and any such assignment or transfer shall be void) except   as expressly contemplated by this Guarantee or any other Loan Document. This Guarantee shall   be construed as a separate agreement with respect to each Guarantee Party and may be amended,   modified, supplemented, waived or released with respect to any Guarantee Party without the ap   proval of any other Guarantee Party and without affecting the obligations of any other Guarantee   Party hereunder.   SECTION 4.06. Severability. If any provision of this Guarantee or the other   Loan Documents is held to be illegal, invalid or unenforceable, the legality, validity and enforce   ability of the remaining provisions of this Guarantee and the other Loan Documents shall not be   affected or impaired thereby and the intent of such illegal, invalid or unenforceable provision   shall be followed as closely as legally possible. The invalidity of a provision in a particular ju   risdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.   SECTION 4.07. Right of Set Off. The rights of the Administrative Agent, each   Lender and each L/C Issuer to setoff shall be as set forth in Section 10.10 of the Credit Agree   ment.   SECTION 4.08. Governing Law; Jurisdiction; Venue; Waiver of Jury Trial;   Consent to Service of Process.   (a) THIS GUARANTEE AND ANY CLAIMS, CONTROVERSY, DISPUTE   OR CAUSE OF ACTION (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED   UPON, ARISING OUT OF OR RELATING TO THIS GUARANTEE AND THE   TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY SHALL BE GOVERNED   BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE PROVINCE OF   ONTARIO AND THE FEDERAL LAWS OF CANADA APPLICABLE THEREIN.   (b) EACH PARTY HERETO HEREBY IRREVOCABLY AND   UNCONDITIONALLY SUBMITS FOR ITSELF AND ITS PROPERTY TO THE NON   EXCLUSIVE JURISDICTION OF ANY COURT OF THE PROVINCE OF ONTARIO IN   ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS   GUARANTEE OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT AND   EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY AGREES   THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE   HEARD AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES   LEGAL_23786304.9 CANADIAN GUARANTEE (FOREIGN ABL)     





 







EXECUTION COPY   ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY   SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR THAT   SUCH COURT IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT THE   RIGHT OF ANY PARTY HERETO TO BRING PROCEEDINGS IN RESPECT OF THIS   GUARANTEE IN THE COURTS OF ANY OTHER JURISDICTION.   (c) WAIVER OF RIGHT TO TRIAL BY JURY. TO THE EXTENT   PERMITTED BY APPLICABLE LAW, EACH PARTY TO THIS GUARANTEE HEREBY   EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND,   ACTION OR CAUSE OF ACTION ARISING UNDER THIS AGREEMENT OR IN ANY   WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE   PARTIES HERETO OR ANY OF THEM WITH RESPECT TO THIS AGREEMENT, OR THE   TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING OR   HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR   OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY   SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY   COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT   MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY   COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO   TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.   (d) Each party to this Guarantee irrevocably consents to service of process in   the manner provided for notices given by mail in Section 4.01. Nothing in this Agreement will   affect the right of any party to this Guarantee to serve process in any other manner permitted by   law.   SECTION 4.09. Headings. Article and Section headings and the Table of Con   tents used herein are for convenience of reference only, are not part of this Guarantee and are not   to affect the construction of, or to be taken into consideration in interpreting, this Guarantee.   SECTION 4.10. Guarantee Absolute. To the fullest extent permitted by applica   ble law, all rights of the Administrative Agent hereunder and all obligations of each Guarantor   hereunder shall be absolute and unconditional irrespective of (a) any lack of validity or enforcea   bility of the Credit Agreement, any other Loan Document, any agreement with respect to any of   the Obligations or any other agreement or instrument relating to any of the foregoing, (b) any   change in the time, manner or place of payment of, or in any other term of, all or any of the Ob   ligations, or any other amendment or waiver of or any consent to any departure from the Credit   Agreement, any other Loan Document, or any other agreement or instrument, (c) any exchange,   release or non-perfection of any Lien on other collateral, or any release or amendment or waiver   of or consent under or departure from any guarantee securing or guaranteeing all or any of the   Obligations (d), any law or regulation of any jurisdiction or any other event affecting any term of   an Obligation, or (e) any other circumstance that might otherwise constitute a defense available   LEGAL 23786304.9 CANADIAN GUARANTEE (FOREIGN ABL)     





 







EXECUTION COPY   to, or a discharge of, any Guarantor in respect of the Obligations or this Guarantee (other than   payment in full in cash of all of the Obligations).   SECTION4.il. Termination or Release.   (a) This Guarantee and the Guaranties made herein shall terminate with re   spect to all Obligations when all the outstanding Obligations (other than contingent indemnifica   tion obligations not yet accrued and payable) have been paid in full and the Lenders have no fur   ther commitment to lend under the Credit Agreement, the Outstanding Amount of L/C Obliga   tions has been reduced to zero (other than any Letter of Credit that has been Cash Collateralized   or, if satisfactory to the L/C Issuer in its sole discretion, for which a backstop Letter of Credit is   in place) and the L/C Issuers have no further obligations to issue Letters of Credit under the   Credit Agreement.   (b) A Guarantor shall automatically be released from its obligations hereunder   as provided in Section 9.12 of the Credit Agreement.   (c) In connection with any termination or release pursuant to paragraph (a) or   (b) of this Section 4.11, the Administrative Agent shall execute and deliver to any Guarantor, at   such Guarantor's expense, all documents that such Guarantor shall reasonably request to evi   dence such termination or release, in each case in accordance with the terms of Section 9.12 of   the Credit Agreement. Any execution and delivery of documents pursuant to this Section 4.11   shall be without recourse to or warranty by the Administrative Agent.   (d) At any time that the Administrative Borrower desires that the Administra   tive Agent take any of the actions described in immediately preceding paragraph (c), it shall, up   on request of the Administrative Agent, deliver to the Administrative Agent an officer's certifi   cate certifying that the release of the respective Guarantor is permitted pursuant to paragraph (a)   or (b). The Administrative Agent shall have no liability whatsoever to any Guarantor as a result   of any release of any Guarantor by it as permitted (or which the Administrative Agent in good   faith believes to be permitted) by this Section 4.11.   SECTION 4.12. Additional Guarantors. Any new direct parent company (that is   not a Domestic Subsidiary) of the Canadian Borrower that enters into this Guarantee as a Guar   antor pursuant to Section 6.11 of the Credit Agreement shall execute and deliver a Guarantee   Supplement and thereupon such new direct parent company (that is not a Domestic Subsidiary)   shall become a Guarantor hereunder with the same force and effect as if originally named as a   Guarantor herein. The execution and delivery of any such instrument shall not require the con   sent of any other Guarantee Party hereunder. The rights and obligations of each Guarantee Party   hereunder shall remain in full force and effect notwithstanding the addition of any new Guaran   tee Party as a party to this Guarantee.   SECTION 4.13. Limitation on Guaranteed Obligations. Each Guarantor and   each Secured Party (by its acceptance of the benefits of this Guarantee) hereby confirms that it is   LEGAL 23786304.9 CANADIAN GUARANTEE (FOREIGN ABL)     





 







EXECUTION COPY   its intention that this Guarantee not constitute a fraudulent transfer or conveyance for purposes of   any Debtor Relief Laws (including the Bankruptcy Laws or any similar federal law). To effectu   ate the foregoing intention, each Guarantor and each Secured Party (by its acceptance of the ben   efits of this Guarantee) hereby irrevocably agrees that the Obligations owing by such Guarantor   under this Guarantee shall be limited to such amount as will, after giving effect to such maxi   mum amount and all other (contingent or otherwise) liabilities of such Guarantor that are rele   vant under such Debtor Relief Laws and after giving effect to any rights to contribution and/or   subrogation pursuant to any agreement providing for an equitable contribution and/or subroga   tion among such Guarantor and the other Guarantors and Borrowers, result in the Obligations of   such Guarantor in respect of such maximum amount not constituting a fraudulent transfer or   conveyance.   SECTION 4.14. Instrument for the Payment of Money. Each Guarantor hereby   acknowledges that this guarantee constitutes an instrument for the payment of money, and con   sents and agrees that any Lender or the Administrative Agent, at its sole option, in the event of a   dispute by such Guarantor in the payment of any moneys due hereunder, shall have the right to   bring a motion-action in accordance herewith.   SECTION 4.15. Continuing Guarantee. This guarantee is a continuing guarantee   of payment, and shall apply to all Obligations whenever arising.   SECTION 4.16. Consent to Certain Provisions. Each Guarantor has read and   agreed to Section 10.22 of the Credit Agreement as if a signatory thereto. Each Guarantor will   comply with all covenants in the Loan Documents applicable to it (including as a Restricted Sub   sidiary or Loan Party) even if it is not a signatory to the applicable Loan Document.   [Signatures on following page]   10   LEGAL_23786304.9 CANADIAN GUARANTEE (FOREIGN ABL)     





 







EXECUTION COPY   IN WITNESS WHEREOF, the parties hereto have duly executed this Guarantee as of the   dav and vear first above written.   AVAYA CANADA CORP.   By; I /   1 /   CANADIAN GUARANTEE (FOREIGN ABL!     





 







EXECUTION COPY   CITIBANK, N.A., as Administrative Agent   By:   Name:   T . , Brendan Macka' i m e   ' Vice Pp&dent and Direa.   CANADIAN GUARANTEE (FOREIGN ABL)     





 







EXECUTION COPY   EXHIBIT I   SUPPLEMENT NO. dated as of [ ], to the Guarantee dated as of June   4, 2015 among AVAYA CANADA CORP. ("Canadian Borrower"), each other Person that ex   ecutes a supplement following the Closing Date and becomes a Guarantor (the "Additional   Guarantors" and collectively, the "Guarantors") and CITIBANK, N.A., as Administrative   Agent.   A. Reference is made to the Credit Agreement dated as of June 4, 2015 (as   amended, supplemented or otherwise modified from time to time, the "Credit Agreement"),   among, the Canadian Borrower, Avaya Deutschland GmbH and Avaya GmbH & Co. KG (col   lectively, the "German Borrowers"), Avaya International Sales Limited (the "Irish Borrower")   and Avaya UK (the "UK Borrower"; and, together with the Canadian Borrower, the German   Borrowers and the Irish Borrower, collectively, the "Borrowers"), Citibank, N.A., as Adminis   trative Agent and L/C Issuer, Citibank, N.A., Canadian Branch, as Canadian Swing Line Lender,   Citibank, N.A., London Branch, as European Swing Line Lender and each lender from time to   time party thereto (collectively, the "Lenders" and individually, a "Lender").   B. Capitalized terms used herein and not otherwise defined herein shall have   the meanings assigned to such terms in the Credit Agreement.   C. The Guarantors have entered into the Guarantee in order to induce the   Lenders to make Loans and the L/C Issuers to issue Letters of Credit. Section 4.12 of the Guar   antee provides that any new direct parent company (that is not a Domestic Subsidiary) of the Ca   nadian Borrower may become Guarantors under the Guarantee by execution and delivery of an   instrument in the form of this Supplement. The undersigned (the "Additional Guarantor") is   executing this Supplement in accordance with the requirements of the Credit Agreement to be   come a Guarantor under the Guarantee in order to induce the Lenders to make additional Loans   and the L/C Issuers to issue additional Letters of Credit and as consideration for Loans previous   ly made and Letters of Credit previously issued.   Accordingly, the Administrative Agent and the Additional Guarantor agree as fol   lows:   SECTION 1. In accordance with Section 4.12 of the Guarantee, the Additional   Guarantor by its signature below becomes a Guarantor under the Guarantee with the same force   and effect as if originally named therein as a Guarantor and the Additional Guarantor hereby   (a) agrees to all the terms and provisions of the Guarantee applicable to it as a Guarantor and   Guarantor thereunder and (b) represents and warrants that the representations and warranties   made by it as a Guarantor thereunder are true and correct on and as of the date hereof. In fur   therance of the foregoing, the Additional Guarantor, as security for the payment and performance   in full of the Obligations does hereby, for the benefit of the Secured Parties, their successors and   assigns, irrevocably, absolutely and unconditionally guarantee, jointly with the other Guarantors   and severally, the due and punctual payment and performance of the Obligations. Each reference   EXHIBIT I-1   LEGAL 23786304.9     





 







EXECUTION COPY   to a "Guarantor" in the Guarantee shall be deemed to include the Additional Guarantor. The   Guarantee is hereby incorporated herein by reference.   SECTION 2. The Additional Guarantor represents and warrants to the Adminis   trative Agent and the Secured Parties that this Supplement has been duly authorized, executed   and delivered by it and constitutes its legal, valid and binding obligation, enforceable against it in   accordance with its terms, except as such enforceability may be limited by Debtor Relief Laws   and by general principles of equity.   SECTION 3. This Supplement may be executed in counterparts (and by different   parties hereto on different counterparts), each of which shall constitute an original, but all of   which when taken together shall constitute a single contract. This Supplement shall become ef   fective when the Administrative Agent shall have received a counterpart of this Supplement that   bears the signature of the Additional Guarantor, and the Administrative Agent has executed a   counterpart hereof. Delivery of an executed signature page to this Supplement by facsimile   transmission or other electronic communication shall be as effective as delivery of a manually   signed counterpart of this Supplement.   SECTION 4. Except as expressly supplemented hereby, the Guarantee shall re   main in full force and effect.   SECTION 5. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND   CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE PROVINCE OF ONTARIO   AND THE FEDERAL LAWS OF CANADA APPLICABLE THEREIN.   SECTION 6. If any provision contained in this Supplement is held to be invalid,   illegal or unenforceable, the legality, validity, and enforceability of the remaining provisions   contained herein and in the Guarantee shall not be affected or impaired thereby and the intent of   such illegal, invalid or unenforceable provision shall be followed as closely as legally possible.   The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforcea   ble such provision in any other jurisdiction.   SECTION 7. All communications and notices hereunder shall be in writing and   given as provided in Section 4.01 of the Guarantee.   SECTION 8. The Additional Guarantor agrees to reimburse the Administrative   Agent for its reasonable out-of-pocket expenses in connection with the execution and delivery of   this Supplement, including the reasonable fees, other charges and disbursements of counsel for   the Administrative Agent to the extent required by Section 4.03 of the Guarantee.   EXHIBIT 1-2   LEGAL 23786304.9     





 







EXECUTION COPY   IN WITNESS WHEREOF, the Additional Guarantor and the Administrative   Agent have duly executed this Supplement to the Guarantee as of the day and year first above   written.   [NAME OF ADDITIONAL GUARANTOR],   By:   Name:   Title:   Jurisdiction of Formation:   Address Of Chief Executive Office:   CITIBANK, N.A.,   as Administrative Agent   By:   Name:   Title:   EXHIBIT 1-3   LEGAL 23786304.9