ex105usguarantyagreement







EXECUTION VERSION   918283.07-CHISR01A - MSW      U.S. GUARANTY   (FOREIGN ABL)      dated as of      June 4, 2015         among   AVAYA INC.,          CERTAIN U.S. SUBSIDIARIES OF AVAYA INC.   FROM TIME TO TIME PARTY HERETO,      and      CITIBANK, N.A.,   as Administrative Agent         Exhibit 10.5    





 







   i   918283.07-CHISR01A - MSW   TABLE OF CONTENTS   Page   ARTICLE I      DEFINITIONS   SECTION 1.01. Credit Agreement .......................................................................................... 1   SECTION 1.02. Other Defined Terms ..................................................................................... 1   ARTICLE II      GUARANTY   SECTION 2.01. Guaranty ........................................................................................................ 2   SECTION 2.02. Guaranty of Payment ..................................................................................... 2   SECTION 2.03. No Limitations ............................................................................................... 2   SECTION 2.04. Reinstatement ................................................................................................ 3   SECTION 2.05. Agreement To Pay; Subrogation ................................................................... 3   SECTION 2.06. Information .................................................................................................... 4   ARTICLE III      INDEMNITY, SUBROGATION AND SUBORDINATION   SECTION 3.01. Indemnity and Subrogation ........................................................................... 4   SECTION 3.02. Contribution and Indemnification ................................................................. 4   SECTION 3.03. Subordination ................................................................................................ 4   ARTICLE IV      MISCELLANEOUS   SECTION 4.01. Notices ........................................................................................................... 5   SECTION 4.02. Waivers; Amendment .................................................................................... 5   SECTION 4.03. Administrative Agent’s Fees and Expenses, Indemnification ....................... 5   SECTION 4.04. Survival of Representations and Warranties ................................................. 6   SECTION 4.05. Counterparts; Effectiveness; Successors and Assigns; Several   Agreement ................................................................................................. 6   SECTION 4.06. Severability .................................................................................................... 6   SECTION 4.07. [Reserved] .................................................... Error! Bookmark not defined.   SECTION 4.08. Governing Law; Jurisdiction; Venue; Waiver of Jury Trial; Consent   to Service of Process ................................................................................. 7   SECTION 4.09. Headings ........................................................................................................ 7     





 







TABLE OF CONTENTS   (continued)   Page   ii   918283.07-CHISR01A - MSW   SECTION 4.10. Guaranty Absolute ......................................................................................... 7   SECTION 4.11. Termination or Release ................................................................................. 7   SECTION 4.12. Additional Guarantors ................................................................................... 8   SECTION 4.13. Limitation on Guaranteed Obligations .......................................................... 8   SECTION 4.14. Instrument for the Payment of Money .......................................................... 8   SECTION 4.15. Continuing Guaranty ..................................................................................... 9   SECTION 4.16. Consent to Certain Provisions ....................................................................... 9        





 







   918283.07-CHISR01A - MSW   U.S. GUARANTY dated as of June 4, 2015, among AVAYA INC., a Delaware   corporation (“Avaya”), the Subsidiaries of Avaya signatory hereto (collectively, the “Subsidiary   Guarantors”), certain other Subsidiaries of Avaya from time to time after the Closing Date par-   ty hereto and CITIBANK, N.A., as Administrative Agent (as defined below).   Reference is made to the Credit Agreement dated of even date herewith (as   amended, restated, supplemented or otherwise modified from time to time, the “Credit Agree-   ment”), among Avaya Canada Corp. (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 “Bor-   rowers”), Citibank, N.A., as Administrative 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,   each, individually, a “Lender”).  The Lenders have agreed to extend credit to the Borrowers sub-   ject to the terms and conditions set forth in the Credit Agreement.  The obligations of the Lend-   ers to extend such credit are conditioned upon, among other things, the execution and delivery of   this Agreement.  Avaya and the Subsidiaries that are or may become party hereto are affiliates of   the Borrowers, will derive substantial benefits from the extension of credit to the Borrowers pur-   suant to the Credit Agreement and are willing to execute and deliver this Agreement 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 Agreement 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 Agreement.   SECTION 1.02. Other Defined Terms.  As used in this Agreement, 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.   “Agreement” means this U.S. Guaranty.   “Bankruptcy Code” means Title 11 of the United States Code entitled “Bank-   ruptcy,” as now or hereafter in effect, or any successor thereto.     





 







   2   918283.07-CHISR01A - MSW   “Guarantor” means Avaya, in its capacity as a guarantor under this Agreement,   the Subsidiary Guarantors and each other Person that becomes a party to this Agreement after the   Closing Date.   “Guaranty Parties” means, collectively, the Borrowers and each Guarantor and   “Guaranty Party” means any one of them.   “Guaranty Supplement” means an instrument in the form of Exhibit I hereto.   ARTICLE II      GUARANTY   SECTION 2.01. Guaranty.  Each Guarantor irrevocably, absolutely and uncondi-   tionally guaranties, jointly with the other Guarantors, and severally, the due and punctual pay-   ment of the Obligations, in each case, whether such Obligations are now existing or hereafter   incurred under, arising out of any Loan Document whether at stated maturity or earlier, by rea-   son of acceleration, mandatory prepayment or otherwise in accordance herewith or with any oth-   er Loan Documents.  Each of the Guarantors further agrees that the Obligations may be extended,   increased or renewed, in whole or in part, without notice to or further assent from it, and that it   will remain bound upon its guaranty notwithstanding any extension, increase or renewal, in   whole or in part, of any Obligation.  To the extent permitted by applicable law, each of the Guar-   antors waives presentment to, demand of payment from and protest to any Guaranty Party of any   of the Obligations, and also waives notice of acceptance of its guaranty and notice of protest for   nonpayment.   SECTION 2.02. Guaranty of Payment.  Each of the Guarantors further agrees   that its guaranty hereunder constitutes a guaranty 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 Administra-   tive 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   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     





 







   3   918283.07-CHISR01A - MSW   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 Agreement; (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 Guaranty Party or the unenforceability   of the Obligations, or any part thereof from any cause, or the cessation from any cause of the lia-   bility of any Guaranty 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 Documents,   may compromise or adjust any part of the Obligations, make any other accommodation with any   Guaranty Party or exercise any other right or remedy available to them against any Guaranty Par-   ty, without affecting or impairing in any way the liability of any Guarantor hereunder except to   the extent the Obligations have been paid in full in cash.  To the fullest extent permitted by ap-   plicable 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 reim-   bursement or subrogation or other right or remedy of such Guarantor against any Guaranty Party,   as the case may be.   SECTION 2.04. Reinstatement.  Each of the Guarantors agrees that its guaranty   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 Guaranty 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   Party has at law or in equity against any Guarantor by virtue hereof, upon the failure of any   Guaranty 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     





 







   4   918283.07-CHISR01A - MSW   any Guaranty Party arising as a result thereof by way of right of subrogation, contribution, reim-   bursement, 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 Guaranty 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 Agreement, 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 Guar-   antor shall, under this Agreement as a joint and several 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 Accommodation 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 Guarantors. As of any date of determination, the “Al-   locable Amount” of each Guarantor shall be equal to the maximum amount of liability for Ac-   commodation Payments which could be asserted against such Guarantor hereunder without (a)   rendering such Guarantor “insolvent” within the meaning of Section 101(31) of the Bankruptcy   Code, Section 2 of the Uniform Fraudulent Transfer Act (“UFTA”) or Section 2 of the Uniform   Fraudulent Conveyance Act (“UFCA”), (b) leaving such Guarantor with unreasonably small   capital or assets, within the meaning of Section 548 of the Bankruptcy Code, Section 4 of the   UFTA, or Section 5 of the UFCA, or (c) leaving such Guarantor unable to pay its debts as they   become due within the meaning of Section 548 of the Bankruptcy Code or Section 4 of the   UFTA, or Section 5 of the UFCA.   SECTION 3.03. Subordination.   (a) Notwithstanding any provision of this Agreement to the contrary, all rights   of the Guarantors under Section 3.01 of this Agreement and all other rights of indemnity, contri-   bution or subrogation under applicable law or otherwise shall be fully subordinated to the pay-    





 







   5   918283.07-CHISR01A - MSW   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 Agreement or consent to   any departure by any Guaranty 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   demand on any Guaranty Party in any case shall entitle any Guaranty Party to any other or fur-   ther notice or demand in similar or other circumstances.   (b) Neither this Agreement 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 Guaranty Party or Guaranty Parties with respect to which such waiver,   amendment or modification is to apply, subject to any consent required in accordance with Sec-   tion 10.01 of the Credit Agreement.     





 







   6   918283.07-CHISR01A - MSW   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 Agreement 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 Agreement 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 Agreement 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 Agreement shall be effective as delivery of an original executed counterpart of this Agree-   ment.  The Administrative Agent may also require that any such documents and signatures deliv-   ered by facsimile or electronic transmission be confirmed by a manually signed original thereof;   provided that the failure to request or deliver the same shall not limit the effectiveness of any   document or signature delivered by facsimile or electronic transmission.  This Agreement shall   become effective as to any Guaranty Party when a counterpart hereof executed on behalf of such   Guaranty 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 Guaranty Party and the Administrative Agent and their respective successors and as-   signs permitted thereby, and shall inure to the benefit of such Guaranty Party, the Administrative   Agent and the other Secured Parties and their respective successors and assigns permitted there-   by, except that no Guaranty Party shall have the right to assign or transfer its rights or obligations   hereunder or any interest herein (and any such assignment or transfer shall be void) except as   expressly contemplated by this Agreement or any other Loan Document.  This Agreement shall     





 







   7   918283.07-CHISR01A - MSW   be construed as a separate agreement with respect to each Guaranty Party and may be amended,   modified, supplemented, waived or released with respect to any Guaranty Party without the ap-   proval of any other Guaranty Party and without affecting the obligations of any other Guaranty   Party hereunder.   SECTION 4.06. Severability.  If any provision of this Agreement 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 Agreement 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.   .  [Reserved]   SECTION 4.08. Governing Law; Jurisdiction; Venue; Waiver of Jury Trial;   Consent to Service of Process.   (a) The terms of Sections 10.16 and 10.17 of the Credit Agreement with re-   spect to governing law, submission of jurisdiction, venue and waive of trial are incorporated   herein by reference, mutatis mutandis, and the parties hereto agree to such terms.   (b) Each party to this Agreement 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 Agreement 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 Agreement and are   not to affect the construction of, or to be taken into consideration in interpreting, this Agreement.   SECTION 4.10. Guaranty 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 guaranty 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   to, or a discharge of, any Guarantor in respect of the Obligations or this Agreement (other than   payment in full in cash of all of the Obligations).     





 







   8   918283.07-CHISR01A - MSW   SECTION 4.11. Termination or Release.   (a) This Agreement 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.  Each Material Domestic Subsidiary of   Avaya that enters into this Agreement as a Guarantor pursuant to Section 6.11 of the Credit   Agreement shall execute and deliver a Guaranty Supplement and thereupon such Material Do-   mestic Subsidiary shall become a Guarantor hereunder with the same force and effect as if origi-   nally named as a Guarantor herein.  The execution and delivery of any such instrument shall not   require the consent of any other Guaranty Party hereunder.  The rights and obligations of each   Guaranty Party hereunder shall remain in full force and effect notwithstanding the addition of   any new Guaranty Party as a party to this Agreement.   SECTION 4.13. Limitation on Guaranteed Obligations.  Each Guarantor and   each Secured Party (by its acceptance of the benefits of this Agreement) hereby confirms that it   is its intention that this Agreement not constitute a fraudulent transfer or conveyance for purpos-   es of any Debtor Relief Laws (including the Bankruptcy Code, the Uniform Fraudulent Convey-   ance Act or any similar Federal or state law).  To effectuate the foregoing intention, each Guar-   antor and each Secured Party (by its acceptance of the benefits of this Agreement) hereby irrevo-   cably agrees that the Obligations owing by such Guarantor under this Agreement shall be limited   to such amount as will, after giving effect to such maximum amount and all other (contingent or     





 







   9   918283.07-CHISR01A - MSW   otherwise) liabilities of such Guarantor that are relevant under such Debtor Relief Laws and after   giving effect to any rights to contribution and/or subrogation pursuant to any agreement provid-   ing for an equitable contribution and/or subrogation among such Guarantor and the other Guar-   antors 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 under New York CPLR Section 3213.   SECTION 4.15. Continuing Guaranty.  This guaranty is a continuing guaranty 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, U.S. Guarantor or Loan Party) even if it is not a signatory to the applicable Loan Docu-   ment.   [Signatures on following page]     





 







    





 







    





 







   EXHIBIT I-1   918283.07-CHISR01A - MSW   EXHIBIT I   SUPPLEMENT NO.________ dated as of [   ], to the U.S. Guaranty dated as of    June 4, 2015 among AVAYA INC., a Delaware corporation (“Avaya”), the Subsidiaries of   Avaya signatory thereto (collectively, the “Subsidiary Guarantors”), certain other Subsidiaries   of Avaya from time to time party thereto 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 Avaya Canada Corp. (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 “Borrow-   ers”), Citibank, N.A., as Administrative 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 indi-   vidually, 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 Guaranty 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-   anty provides that additional Material Domestic Subsidiaries of Avaya may become Guarantors   under the Guaranty by execution and delivery of an instrument in the form of this Supplement.    The undersigned Material Domestic Subsidiary (the “New Subsidiary”) is executing this Sup-   plement in accordance with the requirements of the Credit Agreement to become a Guarantor   under the Guaranty 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 previously made and Letters   of Credit previously issued.   Accordingly, the Administrative Agent and the New Subsidiary agree as follows:   SECTION 1.  In accordance with Section 4.12 of the Guaranty, the New Subsidi-   ary by its signature below becomes a Guarantor under the Guaranty with the same force and ef-   fect as if originally named therein as a Guarantor and the New Subsidiary hereby (a) agrees to all   the terms and provisions of the Guaranty applicable to it as a Guarantor and Guarantor thereun-   der and (b) represents and warrants that the representations and warranties made by it as a Guar-   antor thereunder are true and correct on and as of the date hereof.  In furtherance of the foregoing,   the New Subsidiary, 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, absolute-   ly and unconditionally guaranty, jointly with the other Guarantors and severally, the due and   punctual payment and performance of the Obligations.  Each reference to a “Guarantor” in the   Guaranty shall be deemed to include the New Subsidiary.  The Guaranty is hereby incorporated   herein by reference.     





 







   EXHIBIT I-2   918283.07-CHISR01A - MSW   SECTION 2.  The New Subsidiary represents and warrants to the Administrative   Agent and the Secured Parties that this Supplement has been duly authorized, executed and de-   livered by it and constitutes its legal, valid and binding obligation, enforceable against it in ac-   cordance 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 New Subsidiary, and the Administrative Agent has executed a counter-   part 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 counter-   part of this Supplement.   SECTION 4.  Except as expressly supplemented hereby, the Guaranty 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 STATE OF NEW   YORK.   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 Guaranty 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 Guaranty.   SECTION 8.  The New Subsidiary 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 Guaranty.     





 







   EXHIBIT I-3   918283.07-CHISR01A - MSW   IN WITNESS WHEREOF, the New Subsidiary and the Administrative Agent   have duly executed this Supplement to the Guaranty as of the day and year first above written.   [NAME OF NEW SUBSIDIARY],   By:     Name:    Title:    Jurisdiction of Formation:   Address Of Chief Executive Office:   CITIBANK, N.A.,   as Administrative Agent   By:     Name:    Title: