FOURTH AMENDMENT AND CONSENT TO SECOND LIEN CREDIT AGREEMENT
Exhibit 2.22
FOURTH AMENDMENT AND CONSENT TO SECOND LIEN CREDIT AGREEMENT
THIS FOURTH AMENDMENT AND CONSENT TO SECOND LIEN CREDIT AGREEMENT, dated as of May 15, 2009
(this “Amendment”), to the Existing Credit Agreement (as defined below) is made by Mitel
US Holdings, Inc. (“Borrower”) and Mitel Networks Corporation (the “Parent”), the
various financial institutions and other Persons (each as defined in the Credit Agreement referred
to below)) listed on the signature pages hereof (each a “Lender” and collectively, the
“Lenders”), and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc. (“MSSF”), as the
Administrative Agent (in such capacity, the “Administrative Agent”).
WITNESSETH:
WHEREAS, the Borrower, the Parent, the Lenders, the Administrative Agent, and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
& Co. Incorporated, as the Collateral Agent (in such capacity, the “Collateral Agent”),
are all parties to the Second Lien Credit Agreement, dated as of August 16, 2007 (as amended or
otherwise modified prior to the date hereof, the “Existing
Credit Agreement”; and as
further amended by this Amendment and as the same may be further amended, supplemented, amended
and restated or otherwise modified from time to time, the “Credit Agreement”);
WHEREAS, the Borrower has requested that the Lenders consent to the amendment of the Credit
Agreement to permit, among other things, the reorganization transactions more fully described in
Annex I hereto (the “Reorganization”);
NOW, THEREFORE, the parties hereto covenant and agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Certain Definitions. The following terms when used in this Amendment
shall have the following meanings (such meanings to be equally applicable to the singular and
plural forms thereof):
“Amendment” is defined in the preamble.
“Amendment Effective Date” is defined in Article IV.
“Borrower” is defined in the preamble.
“Credit Agreement” is defined in the first recital.
“Existing Credit Agreement” is defined in the first recital.
“Reorganization” is defined in the second recital.
SECTION
1.2 Defined Terms Generally. Unless otherwise defined herein, capitalized
terms used herein have the meanings provided therefore in the Credit Agreement.
ARTICLE II
AMENDMENTS
SECTION 2.1 Section 1.1 of the Existing Credit Agreement is hereby amended by inserting the
following definitions in the appropriate alphabetical order:
“Fourth Amendment” means the Fourth Amendment and Consent to Second
Lien Credit Agreement, dated as of May 15, 2009, among the Borrower, the Parent,
the Administrative Agent, and the Lenders party thereto.
“Fourth Amendment Effective Date” means the Amendment Effective
Date as that term is defined in Article IV of the Fourth Amendment.
“Lake Communications” means Lake Communications Limited, a company
organized under the laws of Ireland.
“Lake Holdco” means Inter-Tel Lake Limited, a company organized
under the laws of Ireland.
“Reorganization” means the reorganization transactions to be
consummated by the Canadian Borrower and certain of its Subsidiaries on or about
the Fourth Amendment Effective Date, the details of which are set forth on Annex
I to the Fourth Amendment.
SECTION 2.2 Amendment to Section 7.2.2. The preamble of Clause (f) of Section 7.2.2
of the Existing Credit Agreement is hereby amended and restated in its entirety to read as
follows:
(f) Indebtedness of any Borrower or any Subsidiary owing to any Borrower or
any other Subsidiary, which Indebtedness
SECTION 2.3 Amendments to Section 7.2.4.
SECTION 2.3.1 Section 7.2.4 of the Existing Credit Agreement is hereby amended by (a) deleting
the word “or” at the end of clause (k) and (b) inserting new clauses (m) and (n) immediately
following clause (1) which shall read as follows:
(m) Investments consisting of Indebtedness permitted by clause (f)(i) of
Section 7.2.2; and
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(n) Investments consisting of Indebtedness permitted by clause (f)(ii) of
Section 7.2.2;
SECTION 2.3.2 The proviso at the end of Section 7.2.4 of the Existing Credit Agreement is
hereby amended by deleting the text “or (i)” as it appears therein and replacing it
with”, (i) or (n)”.
ARTICLE III
CONSENT
SECTION 3.1 Consent. The Required Lenders hereby consent to the Canadian Borrower and
its Subsidiaries entering into and consummating the Reorganization, substantially as set forth on
Annex I hereto.
ARTICLE IV
CONDITIONS TO EFFECTIVENESS
SECTION 4.1 Conditions to Effectiveness. This Amendment shall become effective upon
the prior or simultaneous satisfaction of each of the following conditions in a manner reasonably
satisfactory to the Administrative Agent (the date when all such conditions are so satisfied being
the “Amendment Effective Date”):
SECTION 4.1.1 Counterparts. The Administrative Agent shall have received (i)
counterparts to this Amendment, executed by the Borrower and the Required Lenders and (ii) a fully
executed copy of an amendment relating to the First Lien Credit Agreement, substantially in the
form of this Amendment.
SECTION 4.1.2 Certificate of Authorized Officer. The Borrower shall have delivered a
certificate of an Authorized Officer, solely in its capacity as an Authorized Officer of the
Borrower, certifying that, both immediately before and after giving effect to the this Amendment on
the Amendment Effective Date, the statements set forth in Article V hereof are true and
correct.
SECTION 4.1.3 Obligor Acknowledgment and Consent. The Parent and each Obligor (other
than the Borrower) shall execute and deliver an Acknowledgment and Consent in substantially the
form of Annex II hereto.
SECTION 4.1.4 Legal Matters. All legal matters incident to this Amendment shall be
satisfactory to the Administrative Agent and its counsel.
SECTION 4.1.5 Payment of Expenses. The Borrower shall have paid all reasonable fees,
costs and expenses of the Agent in connection with the preparation, execution and delivery of this
Amendment and the administration of the Credit Agreement, including without limitation, the
reasonable fees and disbursements of counsel to the Administrative Agent.
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ARTICLE V
REPRESENTATIONS AND WARRANTIES
To induce the Lenders to enter into this Amendment, the Borrower represents and warrants to
the Lenders as set forth below:
SECTION 5.1 Representations and Warranties, No Event of Default. The representations
and warranties contained herein, in Article VI of the Credit Agreement and in each other Loan
Document, including any certificate or other writing delivered by or on behalf of any Obligor to
any Secured Party in connection with this Amendment are true and correct in all material respects
both immediately before and after giving effect to this Amendment (except that any representation
and warranty expressly made as of a specific date shall be true and correct only as of such
specific date), and both immediately before and after giving effect to this Amendment no Default or
Event of Default shall have occurred, assuming effectiveness of this Amendment, and be continuing
or would result from this Amendment becoming effective in accordance with its terms.
SECTION 5.2 Due Authorization, Non-Contravention, etc. The execution, delivery and
performance by each Obligor of this Amendment, the Credit Agreement and each other Loan Document
executed or to be executed by it are in each case within such Person’s powers, have been duly
authorized by all necessary action, and do not (a) contravene any (i) Obligor’s Organic Documents,
(ii) court decree or order binding on or affecting any Obligor or (iii) law or governmental
regulation binding on or affecting any Obligor; or (b) result in (i) or require the creation or
imposition of any Lien on any Obligor’s properties (except as permitted by the Credit Agreement)
or (ii) a default under any material contractual restriction binding on or affecting any Obligor.
SECTION
5.3 Government Approval, Regulation, etc. No authorization or approval or
other action by, and no notice to or filing with, any Governmental
Authority or other Person
(other than those that have been, or on the Amendment Effective Date will be, duly obtained or
made and which are, or on the Amendment Effective Date will be, in full force and effect) is
required for the consummation of this Amendment or the Credit Agreement or the due execution,
delivery or performance by any Obligor of this Amendment, the Credit Agreement or any other Loan
Document to which it is a party.
SECTION 5.4 Validity, etc. This Amendment, the Credit Agreement and each other Loan
Document to which any Obligor is a party constitutes the legal, valid and binding obligations of
such Obligor, enforceable against such Obligor in accordance with their respective terms except,
in any case, as such enforceability may be limited by applicable bankruptcy, insolvency,
reorganization or similar laws affecting creditors’ rights generally and by principles of equity.
SECTION 5.5 Transactions with Affiliates. The Borrower hereby represents and warrants
to the Agents and Lenders that the Reorganization is on fair and reasonable terms no
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less favorable to the Borrower and its Subsidiaries than they could obtain in an arm’s-length
transaction with a Person that is not an Affiliate and is of the kind which would be entered into
by a prudent Person in the position of the Borrower and its Subsidiaries with a Person that is not
one of their Affiliates.
ARTICLE VI
MISCELLANEOUS
SECTION 6.1 Counterparts. This Amendment may be executed by the parties hereto in
several counterparts, each of which when executed and delivered shall be an original and all of
which shall constitute together one and the same agreement. Delivery of an executed counterpart of
a signature page to this Amendment by facsimile (or other electronic transmission) shall be
effective as delivery of a manually executed counterpart of this Amendment.
SECTION 6.2 Cross-References. References in this Amendment to any Article or Section
are, unless otherwise specified, to such Article or Section of this Amendment.
SECTION 6.3 Governing Law. This Amendment shall be governed by, and construed in
accordance with, the internal laws of the State of New York.
SECTION 6.4 Loan Document Pursuant to Credit Agreement. This Amendment constitutes a
“Loan Document” under the Credit Agreement. Accordingly, it shall be an Event of Default under the
Credit Agreement if (a) any representation or warranty made by an Obligor under or in connection
with this Amendment shall have been untrue, false or misleading in any material respect when made,
or (b) an Obligor shall fail to perform or observe any term, covenant or agreement contained in
this Amendment.
SECTION 6.5 No Waiver. This Amendment is not, and shall not be deemed to be, a waiver
of or consent to any Event of Default, event with which the giving of notice or lapse of time or
both may result in an Event of Default, or other non-compliance now existing or hereafter arising
under the Credit Agreement and the other Loan Documents.
SECTION 6.6 Successors and Assigns. This Amendment shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns.
SECTION 6.7 Fees and Expenses. The Borrower shall pay on demand all out-of-pocket
costs and expenses of the Agent in connection with the preparation, execution and delivery of this
Amendment, including without limitation, the reasonable fees and expenses and other reasonable
charges of legal counsel to the Agent.
SECTION 6.8 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVES TO THE FULLEST EXTENT PERMITTED BY LAW ANY RIGHTS THEY MAY HAVE TO A TRIAL BY
JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH,
EACH LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR
WRITTEN)
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OR ACTIONS OF SUCH PERSON IN CONNECTION THEREWITH. EACH BORROWER ACKNOWLEDGES AND AGREES THAT IT
HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION (AND EACH OTHER PROVISION OF EACH
OTHER LOAN DOCUMENT TO WHICH IT IS A PARTY) AND THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR
THE OTHER PARTIES ENTERING INTO THIS AMENDMENT. EACH PARTY HERETO CERTIFIES THAT NO REPRESENTATIVE,
AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY
WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this Amendment as of the
date first above written.
| ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ SENIOR FUNDING, INC., as Administrative Agent and as a Lender |
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| By: | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ | |||
| Name: | ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ | |||
| Title: | Vice President | |||
| ASCENSION LOAN VEHICLE, LLC, as a Lender |
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| By: | /s/ ▇▇▇▇▇▇ ▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇▇ ▇▇▇▇▇ | |||
| Title: | Vice President | |||
| ZIFF BROTHERS ASSET
MANAGEMENT, L.P By: ▇▇▇▇▇▇ Holdings, Inc., its general partner |
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| By: | /s/ ▇▇▇▇▇ ▇▇▇▇ | |||
| Name: | ▇▇▇▇▇ ▇▇▇▇ | |||
| Title: | Vice President | |||
| MITEL NETWORKS CORPORATION |
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| By: | /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | |||
| Title: Chief Financial Officer | ||||
| MITEL US HOLDINGS, INC. |
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| By: | /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | |||
| Title: Chairman & President | ||||