Exhibit 4.52
THIS TRI-PARTY AGREEMENT is made as of June 30, 2005
BETWEEN:
MITEL NETWORKS OVERSEAS LIMITED, a corporation governed by the laws
of Barbados,
("MNOL")
- and -
MITEL NETWORKS INTERNATIONAL LIMITED, a corporation governed by the
laws of Barbados,
("MNIL")
- and -
MITEL NETWORKS LIMITED, a corporation governed by the laws of
England and Wales,
("MNL")
RECITALS:
A. Whereas MNOL (formerly Mitel Networks (Barbados) Limited) and MNIL have
entered into an Intellectual Property License Agreement (the "MNOL License
Agreement") dated April 28, 2001 providing for the granting of certain
intellectual property licenses from MNOL to MNIL.
B. Whereas MNIL and MNL have entered into an Intellectual Property License
Agreement (the "MNIL License Agreement") dated April 28, 2001 providing
for the granting of certain intellectual property licenses from MNIL to
MNL.
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C. Whereas Mitel Networks Corporation ("MNC") issued certain senior secured
convertible notes (the "Notes") pursuant to a securities purchase
agreement (the "SPA") dated April 27, 2005 among MNC and the buyers from
time to time signatory thereto (the "Buyers").
D. Whereas pursuant to the SPA and in consideration for
the Buyers purchasing the Notes, MNC and certain of
its affiliates including MNL and MNOL have agreed to
provide security in favour of the Buyers,
THEREFORE, in consideration of $10.00 and for other good and valuable
consideration (the sufficiency of which is hereby acknowledged) the Parties
agree as follows:
ARTICLE 1
DEFINITIONS AND PRINCIPLES OF INTERPRETATION
1.1 DEFINITIONS
Whenever used in this Agreement, the following words and terms have the
following meanings:
"AGREEMENT" means this agreement, including all schedules and all
amendments, restatements, supplements and replacements as permitted, and
references to "Article" or "Section" mean the specified Article or Section
of this Agreement.
"BUSINESS DAY" means any day other than Saturday, Sunday or other day on
which commercial banks in the City of New York or the City of Ottawa,
Canada are authorized or required by law to remain closed and which is
also a day on which dealings in deposits are transacted in the London
interbank market.
"PERSON" means any individual, sole proprietorship, corporation, company,
partnership, firm, entity, unincorporated association, unincorporated
syndicate, unincorporated organization, trust, body corporate, government,
government regulatory authority, governmental department, agency,
commission, board, tribunal, dispute settlement panel or body, bureau,
court, and where the context requires any of the foregoing when they are
acting as trustee, executor, administrator or other legal representative.
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1.2 CERTAIN RULES OF INTERPRETATION
In this Agreement:
(a) CONSENT -- Whenever a provision of this Agreement requires an
approval or consent and the approval or consent is not delivered
within the applicable time limit, then, unless otherwise specified,
the Party whose consent or approval is required shall be
conclusively deemed to have withheld its approval or consent.
(b) CURRENCY -- Unless otherwise specified, all references to money
amounts are to the lawful currency of the United States.
(c) HEADINGS -- Headings of Articles and Sections are inserted for
convenience of reference only and shall not affect the construction
or interpretation of this Agreement.
(d) INCLUDING -- Where the word "including" or "includes" is used in
this Agreement, it means "including (or includes) without
limitation".
(e) NO STRICT CONSTRUCTION -- The language used in this Agreement is the
language chosen by the Parties to express their mutual intent, and
no rule of strict construction shall be applied against any Party.
(f) NUMBER AND GENDER -- Unless the context otherwise requires, words
importing the singular include the plural and vice versa and words
importing gender include all genders.
(g) TIME -- Time is of the essence in the performance of the Parties'
respective obligations.
(h) TIME PERIODS -- Unless otherwise specified, time periods within or
following which any payment is to be made or act is to be done shall
be calculated by excluding the day on
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which the period commences and including the day on which the period
ends and by extending the period to the next Business Day following
if the last day of the period is not a Business Day.
ARTICLE 2
AMENDMENTS
2.1 MNOL LICENSE AGREEMENT
MNOL and MNIL hereby agree to amend the MNOL License Agreement such that:
(a) Section 7.4 is deleted in its entirety and replaced with the
following:
"7.4 TERMINATION - This Agreement may be terminated by:
(i) mutual agreement of the Parties in writing; or
(ii) at any time by MNOL upon the occurrence of an Event of Default
(as such term is defined in the Notes)."
(b) The following shall be added to the Definitions section as Section
1.1(aa):
" "NOTES" means the senior secured convertible notes issued pursuant
to a securities purchase agreement dated April 27, 2005 among Mitel
Networks Corporation and the buyers from time to time signatory
thereto."
2.2 MNIL LICENSE AGREEMENT
MNIL and MNL hereby agree to amend the MNIL License Agreement such that Section
7.4 is deleted in its entirety and replaced with the following:
"7.4 TERMINATION - This Agreement may be terminated by:
(i) mutual agreement of the Parties in writing; or
(ii) at any time by MNIL upon the occurrence of an Event of Default
(as such term is defined in the Notes)."
(b) The following shall be added to the Definitions section as Section
1.1(aa):
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" "NOTES" means the senior secured convertible notes issued pursuant
to a securities purchase agreement dated April 27, 2005 among Mitel
Networks Corporation and the buyers from time to time signatory
thereto."
2.3 ASSIGNMENT OF MNOL LICENSE AGREEMENT TO MNL
Prior to terminating the MNOL License Agreement in accordance with Section
7.4(ii) of such agreement, MNOL agrees to provide MNL or such other party as
Highbridge International LLC, as collateral agent for the Buyers, or any
successor collateral agent for the Buyers may direct with the option to have all
of the rights and obligations of MNOL under such agreement assigned to MNL or
such other party. In satisfaction of Section 8.1 of the MNOL License Agreement,
MNIL hereby irrevocably and unconditionally consents to any such assignment by
MNOL to MNL or such other party following the occurrence of an Event of Default
(as defined in the Notes).
ARTICLE 3
REPERSENTATIONS AND WARRANTIES
3.1 REPRESENTATIONS AND WARRANTIES OF MNIL
MNIL represents and warrants to MNOL and MNL, the matters set out below.
(a) INCORPORATION AND CORPORATE POWER
MNIL is a corporation validly existing under the laws of Barbados
and has all necessary corporate power, authority and capacity to
enter into this Agreement, to carry out its obligations under this
Agreement, to own its assets and property and to carry on its
business as presently conducted.
(b) DUE AUTHORIZATION AND ENFORCEABILITY OF OBLIGATIONS
The execution and delivery of this Agreement and the consummation of
the transactions contemplated by this Agreement have been duly
authorized by all necessary corporate action on the part of MNIL.
This Agreement constitutes a valid and binding obligation of MNIL
enforceable against it in accordance with its terms.
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(c) ABSENCE OF CONFLICTING AGREEMENTS
MNIL is not a party to, bound or affected by or subject to any
indenture, mortgage, lease, agreement, obligation, instrument,
charter, by-law, order, judgment, decree, licence, law (including
regulations) or governmental authorization that would be violated,
breached by, or under which a default would occur or an encumbrance
would be created, as a result of the execution and delivery of, or
performance of obligations under, this Agreement or any other
agreement to be entered into under the terms of this Agreement.
3.2 REPRESENTATIONS AND WARRANTIES OF MNOL
MNOL represents and warrants to MNIL and MNL, the matters set out below.
(a) INCORPORATION AND CORPORATE POWER
MNOL is a corporation validly existing under the laws of Barbados
and has all necessary corporate power, authority and capacity to
enter into this Agreement, to carry out its obligations under this
Agreement, to own its assets and property and to carry on its
business as presently conducted.
(b) DUE AUTHORIZATION AND ENFORCEABILITY OF OBLIGATIONS
The execution and delivery of this Agreement and the consummation of
the transactions contemplated by this Agreement have been duly
authorized by all necessary corporate action on the part of MNOL.
This Agreement constitutes a valid and binding obligation of MNOL
enforceable against it in accordance with its terms.
(c) ABSENCE OF CONFLICTING AGREEMENTS
MNOL is not a party to, bound or affected by or subject to any
indenture, mortgage, lease, agreement, obligation, instrument,
charter, by-law, order, judgment, decree, licence, law (including
regulations) or governmental
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authorization that would be violated, breached by, or under which a
default would occur or an encumbrance would be created, as a result
of the execution and delivery of, or performance of obligations
under, this Agreement or any other agreement to be entered into
under the terms of this Agreement.
3.3 REPRESENTATIONS AND WARRANTIES OF MNL
MNL represents and warrants to MNOL and MNIL, the matters set out below.
(a) INCORPORATION AND CORPORATE POWER
MNL is a corporation validly existing under the laws of England and
Wales and has all necessary corporate power, authority and capacity
to enter into this Agreement, to carry out its obligations under
this Agreement, to own its assets and property and to carry on its
business as presently conducted.
(b) DUE AUTHORIZATION AND ENFORCEABILITY OF
OBLIGATIONS
The execution and delivery of this Agreement and the consummation of
the transactions contemplated by this Agreement have been duly
authorized by all necessary corporate action on the part of MNL.
This Agreement constitutes a valid and binding obligation of MNL
enforceable against it in accordance with its terms.
(c) ABSENCE OF CONFLICTING AGREEMENTS
MNL is not a party to, bound or affected by or subject to any
indenture, mortgage, lease, agreement, obligation, instrument,
charter, by-law, order, judgment, decree, licence, law (including
regulations) or governmental authorization that would be violated,
breached by, or under which a default would occur or an encumbrance
would be created, as a result of the execution and delivery of, or
performance of obligations under, this Agreement or any other
agreement to be entered into under the terms of this Agreement.
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ARTICLE 4
GENERAL
4.1 EFFECT OF AGREEMENT
This Agreement shall enure to the benefit of, and be binding upon, the Parties
hereto and their respective successors and permitted assigns.
4.2 FURTHER ASSURANCES
The Parties hereto agree to sign all such further documents and do all such
further things as may be deemed necessary or appropriate to give full effect to
this Agreement.
4.3 SEVERABILITY
If any term, clause, or provision of this Agreement shall be judged to be
invalid or unenforceable, the validity or enforceability of any other term,
clause or provision shall not be affected, and such invalid or unenforceable
term, clause or provisions shall be replaced with an enforceable clause which
most closely achieves the result intended by the invalid clause.
4.4 AMENDMENT
Any amendment, supplement, replacement or modification to this Agreement must be
made in writing and signed by all Parties and shall require the prior written
consent of a majority of the holders of the Notes.
4.5 GOVERNING LAW
All issues and questions concerning the construction, validity, enforcement and
interpretation of this Agreement shall be governed by, and construed in
accordance with, the laws of Barbados, without giving effect to any choice of
law or conflict of laws, rules or provisions.
4.6 JURISDICTION
The Parties hereby submit and consent to the exclusive jurisdiction of the
courts located in Barbados.
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4.7 ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the Parties with respect
to the subject matter hereof.
4.8 NOTICES
Any notice, consent or approval required or permitted to be given in connection
with this Agreement (in this Section referred to as a "Notice") shall be in
writing and shall be sufficiently given if delivered (whether in person, by
courier service or other personal method of delivery), or if transmitted by
facsimile:
(a) in the case of a Notice to MNIL at:
Mitel Networks International Limited
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Attention: Counsel
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(b) in the case of a Notice to MNOL at:
Mitel Networks Overseas Limited
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Attention: Counsel
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(c) in the case of a Notice to MNL at:
Mitel Networks Limited
Mitel Business Park
Portskewett, Caldicott
NPZ6 5YR U.K.
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Attention: Counsel
Fax: ▇▇▇▇-▇▇▇-▇▇▇▇
Any Notice delivered or transmitted to a Party as provided above shall be deemed
to have been given and received on the day it is delivered or transmitted,
provided that it is delivered or transmitted on a Business Day prior to 5:00
p.m. local time in the place of delivery or receipt. However, if the Notice is
delivered or transmitted after 5:00 p.m. local time or if the day is not a
Business Day then the Notice shall be deemed to have been given and received on
the next Business Day.
Any Party may, from time to time, change its address by giving Notice to the
other Parties in accordance with the provisions of this Section.
4.9 EXECUTION AND DELIVERY
This Agreement may be executed by the Parties in counterparts and may be
executed and delivered by facsimile and all the counterparts and facsimiles
shall together constitute one and the same agreement.
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IN WITNESS OF WHICH the Parties have duly executed this Agreement.
MITEL NETWORKS LIMITED
By:
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Name: -
Title: -
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MITEL NETWORKS INTERNATIONAL LIMITED
By:
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Name: -
Title: -
MITEL NETWORKS OVERSEAS LIMITED
By:
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Name: -
Title: -
