EXHIBIT 2.11
DATED 27 April 2005
(1) MITEL NETWORKS LIMITED
(2) HIGHBRIDGE INTERNATIONAL LLC (as Security Agent)
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GUARANTEE AND INDEMNITY
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XXXXXX XXXX
Xxxxxxx Xxxxx
Xxxx Xxxxx
Xxxxxxx XX00 0XX
Ref: MDM
THIS GUARANTEE AND INDEMNITY is made BY DEED and dated April 2005
PARTIES:
(1) MITEL NETWORKS LIMITED, a private company limited by shares incorporated
in England and Wales under number 1309629 whose registered office is at
Xxxxxxxxxxx, Xxxxxxxxxxxxx, XX00 0XX ("GUARANTOR")
(2) HIGHBRIDGE INTERNATIONAL LLC ("SECURITY AGENT") as trustee for itself and
the other Secured Parties.
RECITALS
Whereas the Guarantor is a subsidiary of the Principal Debtor (as defined
below) and has agreed to enter into this Guarantee to secure all of the
monies, liabilities and obligations of the Principal Debtor (as defined
below) owed to the Security Agent and the other Secured Parties pursuant
to the Transaction Documents (as defined below).
AGREEMENT
1. INTERPRETATION
1.1 Unless the context otherwise requires or unless otherwise defined in this
Guarantee, words and expressions shall have the same respective meanings
that are given to them in the Transaction Documents.
1.2 In this Guarantee the following expressions shall have the following
meanings :-
"CHARGE" means (i) the charge over book debts and cash at bank dated the
date of this Guarantee (ii) the debenture dated the date of this
Guarantee, and (iii) the charge over shares to be made after the date of
this Guarantee, each made (or to be made, as the case may be) by the
Guarantor in favour of the Security Agent, as the same may be amended,
restated or supplemented from time to time.
"COLLATERAL AGENCY AGREEMENT" means the collateral agency agreement dated
the date hereof between, among others, the Security Agent, the Principal
Debtor and the Noteholders (as defined therein);
"PRINCIPAL DEBTOR" means Mitel Networks Corporation, a company
incorporated under the laws of Canada.
"SECURED PARTIES" means the Security Agent and the holders from time to
time of the Notes and "SECURED PARTY" means any of them.
"TRANSACTION DOCUMENTS" means the Securities Purchase Agreement among the
Principal Debtor, the Security Agent and others dated on or about the
date hereof, the senior secured convertible notes (the "NOTES") issued
pursuant thereto, the Security Documents (as defined in the Notes), the
Collateral Agency Agreement and the Registration Rights Agreement (as
defined in the Notes).
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1.3 References to "THIS GUARANTEE" include the indemnity in clause 3.3.
1.4 References to clauses are to be construed as references to the clauses of
this Guarantee.
1.5 References to this Guarantee and to any provisions of this Guarantee or
to any other document or agreement are to be construed as references to
this Guarantee, those provisions or that document or agreement in force
for the time being and as amended, varied, supplemented, substituted or
novated from time to time.
1.6 Words importing the singular are to include the plural and vice versa.
1.7 References to a person are to be construed to include references to a
corporation, firm, company, partnership, joint venture, unincorporated
body of persons, individual or any state or any agency of a state,
whether or not a separate legal entity.
1.8 References to any person are to be construed to include that person's
assigns or transferees or successors in title, whether direct or
indirect.
1.9 References to any statutory provision are to be construed as references
to that statutory provision as amended, supplemented, re-enacted or
replaced from time to time (whether before or after the date of this
Guarantee) and are to include any orders, regulations, instruments or
other subordinate legislation made under or deriving validity from that
statutory provision.
1.10 If any of the provisions of this Guarantee are or are found to be
invalid, illegal or unenforceable in any respect under any law, the
validity, legality and enforceability of the remaining provisions shall
not in any way be affected or impaired
1.11 The words "OTHER" and "OTHERWISE" are not to be construed ejusdem generis
with any foregoing words where a wider construction is possible.
1.12 References to liability are to include any liability whether actual,
contingent, present or future.
1.13 Headings are for ease of reference only and shall not affect the
interpretation of this Guarantee.
2. REPRESENTATIONS AND WARRANTIES BY THE GUARANTOR
2.1 The Guarantor hereby represents and warrants to the Security Agent (for
the benefit of itself and the other Secured Parties) that:
2.1.1 the Guarantor is duly incorporated and is a validly existing company
under the laws of its place of incorporation, has the capacity to
xxx or be sued in its own name and has power to carry on its
business as now being conducted and to own its property and other
assets;
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2.1.2 the Guarantor has full power and authority to execute, deliver and
perform its obligations under this Guarantee and under the Charge
and no limitation on the powers of the Guarantor will be exceeded as
a result of the Guarantor entering into this Guarantee or the
Charge;
2.1.3 the execution, delivery and performance by the Guarantor of this
Guarantee and the Charge and the performance of its obligations
under this Guarantee and the Charge have been duly authorized by all
necessary corporate action and do not contravene or conflict with:
(a) the Guarantor's memorandum and articles of association or
other equivalent constitutional documents; or
(b) any resolutions of the shareholders or directors of the
Guarantor; or
(c) any existing law, statute, rule or regulation or any judgment,
decree or permit to which the Guarantor is subject; or
(d) the terms of any agreement or other document to which the
Guarantor is a party or which is binding upon it or any of its
assets;
2.1.4 this Guarantee and the Charge are the legal, valid and binding
obligations of the Guarantor and are enforceable against the
Guarantor in accordance with their terms;
2.1.5 except as disclosed in writing to the Security Agent, there are no
actions, suits or proceedings pending or, to its knowledge,
threatened (nor to the best of its knowledge is there any pending
investigation) against or involving the Guarantor or any of its
subsidiaries at law or in equity or before or by any federal, state,
municipal or other governmental department, commission, board,
bureau, agency or instrumentality, domestic or foreign, or before
any arbitrator of any kind, which involves a reasonable possibility
(so far as it can foresee) of either any material adverse change in
the business, properties or financial condition of the Guarantor or
of any adverse impairment of the value of the security granted or to
be granted pursuant to the Charge and neither the Guarantor nor any
of its subsidiaries is in default with respect to any judgment,
order, writ, injunction, decree, rule or regulation of any court,
arbitrator or federal, provincial, state, municipal or other
governmental department, commission, board, bureau, agency or
instrumentality which involves a reasonable possibility (so far as
it can foresee) of either any material adverse change in the
business, properties or financial condition of the Guarantor or of
any adverse impairment of the value of the security granted or to be
granted pursuant to the Charge.
2.2 The Guarantor acknowledges that the Security Agent (for the benefit of
itself and the other Secured Parties) has accepted this Guarantee and the
Charge in full reliance on the representations and warranties set out in
this clause 2, notwithstanding any investigation made by or on behalf of
the Secured Parties. The representations and warranties made
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by the Guarantor in this clause 2 for the benefit of the Secured Parties
are material and shall survive the execution and delivery of this
Guarantee and the Charge.
3. GUARANTEE AND INDEMNITY
3.1 In consideration of the Security Agent and the other Secured Parties
entering into the Transaction Documents and making the facilities
available to the Principal Debtor thereunder the Guarantor irrevocably
and unconditionally undertakes the obligations and liabilities set out in
clause 3.2.
3.2 The Guarantor irrevocably and unconditionally guarantees on demand, the
due and punctual performance and discharge of all obligations and
liabilities of any kind whatsoever of the Principal Debtor to the Secured
Parties and/or the Security Agent on their behalf in connection with or
relating to the Transaction Documents, whether:
3.2.1 present or future;
3.2.2 actual or contingent; and/or
3.2.3 owed by the Principal Debtor alone or jointly and/or severally with
others
(the "SECURED OBLIGATIONS").
3.3 The Guarantor shall indemnify and keep indemnified the Security Agent
(for the benefit of itself and the other Secured Parties) (to the extent
not indemnified under the Transaction Documents or as otherwise
indemnified under this Guarantee) on demand by the Security Agent against
all losses, actions, claims, costs, charges, expenses and liabilities
suffered or incurred by the Security Agent or any other Secured Party in
relation to this Guarantee (including the costs, charges and expenses
incurred in the enforcement of any of the provisions of this Guarantee or
occasioned by any breach by the Guarantor of any of its obligations to
the Security Agent under this Guarantee).
4. SECURITY AGENT AND SECURED PARTY PROTECTIONS
4.1 The Guarantor acknowledges and agrees that this Guarantee is and at all
times shall be a continuing security and shall extend to cover the
ultimate balance due at any time from the Principal Debtor to the
Security Agent and the other Secured Parties under or in respect of any
of the Transaction Documents and any of the transactions contemplated
thereby, it being the intent of the Guarantor that its liability to the
Secured Parties under this Guarantee shall be absolute and unconditional
under all circumstances and shall not be discharged except by payment in
full of all of the obligations and liabilities set out in clause 3.2.
4.2 The Guarantor acknowledges and agrees that none of its liabilities under
this Guarantee shall be reduced, discharged or otherwise adversely
affected by:
4.2.1 any variation, extension, discharge, compromise, dealing with,
exchange or renewal of any right or remedy which the Security Agent
or any other Secured
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Party may now or hereafter have from or against the Principal Debtor
and any other person in respect of any of the obligations and
liabilities of the Principal Debtor and any other person under and
in respect of the Transaction Documents;
4.2.2 any act or omission by the Security Agent or any other person in
taking up, perfecting or enforcing any security or guarantee from or
against the Principal Debtor and any other person;
4.2.3 any termination, amendment, variation, novation or supplement of or
to the Transaction Documents;
4.2.4 any grant of time, indulgence, waiver or concession to the Principal
Debtor and any other person;
4.2.5 any of the insolvency, bankruptcy, liquidation, administration,
winding-up, incapacity, limitation, disability, the discharge by
operation of law, and any change in the constitution, name and style
of the Principal Debtor and any other person;
4.2.6 any invalidity, illegality, unenforceability, irregularity or
frustration of any actual or purported obligation of the Principal
Debtor and any other person;
4.2.7 any claim or enforcement of payment from the Principal Debtor and
any other person;
4.2.8 any act or omission which would have discharged or affected the
liability of the Guarantor had it been a principal debtor instead of
guarantor or indemnitor or by anything done or omitted by any person
which but for this provision might operate to exonerate or discharge
the Guarantor or otherwise reduce or extinguish its liability under
this Guarantee in whole or in part;
4.2.9 any lack of validity or enforceability of the Transaction Documents
or any other agreement or instrument relating thereto.
4.3 Primary obligation
4.3.1 The obligations and liabilities expressed to be undertaken by the
Guarantor under this Guarantee are those of primary obligor and not
merely as a surety.
4.3.2 The Security Agent shall not be obliged before taking steps to
enforce any of its rights and remedies under this Guarantee (for the
benefit of itself and the other Secured Parties):
(a) to take action or obtain judgment in any court against the
Principal Debtor and any other person;
(b) to make or file any claim in a bankruptcy, liquidation,
administration or insolvency of the Principal Debtor and any
other person; or
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(c) to make demand, enforce or seek to enforce any claim, right or
remedy against the Principal Debtor or any other person.
4.4 Dealing with the Principal Debtor and Others
4.4.1 The obligations and liabilities of the Guarantor hereunder shall not
be released, discharged, limited or in any way affected by anything
done, suffered or permitted by the Secured Parties in connection
with any monies advanced by the Secured Parties to the Principal
Debtor under the Transaction Documents or any security therefor,
including any loss of or in respect of any security received by the
Secured Parties from the Principal Debtor or others. It is agreed
that the Secured Parties, without releasing, discharging, limiting
or otherwise affecting in whole or in part the Guarantor's
obligations and liabilities hereunder, may, without limiting the
generality of the foregoing:
(a) grant time, renewals, extensions, indulgences, releases and
discharges to the Principal Debtor,
(b) increase or decrease the amount of the credit facilities
available to the Principal Debtor or amend, delete or add to
any terms or conditions of the Transaction Documents;
(c) take or abstain from taking securities or collateral from the
Principal Debtor or from perfecting securities or collateral
of the Principal Debtor;
(d) release, discharge, compromise or otherwise deal with (with or
without consideration) any and all collateral, mortgages or
other security given by the Principal Debtor or any third
party with respect to the obligations or matters contemplated
by the Transaction Documents;
(e) do, or omit to do, anything to enforce the payment or
performance of any of the obligations and liabilities set out
in clause 3.2 or take or abstain from taking security from the
Principal Debtor or any other person or to perfect or abstain
from perfecting any security interest;
(f) vary, compromise, exchange, renew, discharge, release,
subordinate, postpone, abandon or otherwise deal with any of
the obligations and liabilities set out in clause 3.2 or any
security interest;
(g) deal with or allow any creditor of the Principal Debtor or the
Guarantor or any other person to deal with goods or property
constituting collateral subject to any security interest;
(h) accept compromises from the Principal Debtor;
(i) apply all monies at any time received from the Principal
Debtor or from securities upon such part of the obligations
and liabilities set out in clause
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3.2 as the Secured Parties may see fit or change any such
application in whole or in part from time to time as the
Secured Parties may see fit; or
(j) otherwise deal with the Principal Debtor and all other persons
and securities as the Secured Parties may see fit.
4.4.2 The Secured Parties shall not be bound or obliged to exhaust its
recourse against the Principal Debtor or other persons or any
securities, mortgage or collateral it may hold or take any other
action before being entitled to payment from the Guarantor
hereunder.
4.4.3 Any account settled by or between the Secured Parties and the
Principal Debtor with respect to the Transaction Documents shall in
the absence of manifest error be accepted by the Guarantor as
conclusive evidence that the balance or amount thereby appearing due
to the Secured Parties is so due.
4.5 No security
4.5.1 The Guarantor warrants to the Security Agent that it has not taken
or received, and agrees not to take, exercise or receive the benefit
of any security or other right or benefit (whether by set-off,
counterclaim, subrogation, indemnity, proof in liquidation or
otherwise and whether from contribution or otherwise, all together
'Rights') from or against any of the Principal Debtor or any other
person in respect of any liability of or payment by the Guarantor
under this Guarantee or otherwise in connection with this Guarantee
other than the unsecured indemnity to be given by the Principal
Debtor to the Guarantor in respect of this Guarantee.
4.5.2 If any of such Rights is taken, exercised or received by the
Guarantor, the Guarantor declares that such Rights and all monies at
any time received or held in respect of such Rights shall be held by
the Guarantor on trust for the Security Agent (for the benefit of
itself and the other Secured Parties) for application in or towards
the discharge of the liabilities of the Guarantor to the Security
Agent and the other Secured Parties under this Guarantee.
4.5.3 The Guarantor agrees that all other Rights and all monies from time
to time held on trust by the Guarantor for the Security Agent (for
the benefit of itself and the other Secured Parties) under or
pursuant to clause 4.5.2 shall be transferred, assigned or, as the
case may be, paid to the Security Agent, promptly following the
Security Agent's demand.
4.6 This Guarantee shall be in addition to and shall not affect or be
affected by or merge with any other judgment, security, right or remedy
obtained or held by the Security Agent (for the benefit of itself and the
other Secured Parties) from time to time for the discharge and
performance of any of the liabilities and obligations of the Principal
Debtor to the Security Agent and the other Secured Parties.
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5. INTEREST
5.1 The Guarantor agrees to pay interest to the Security Agent at the
interest rate prescribed in the Notes after as well as before judgment on
all sums demanded under this Guarantee from the date of the Security
Agent's demand under this Guarantee or, if earlier, the date on which the
relevant damages, losses, costs or expenses arose in respect of which
such demand has been made, in each case until, but excluding, the date of
actual payment.
5.2 All such interest shall accrue on a day-to-day basis and shall be
compounded in accordance with the Notes.
6. SUSPENSE ACCOUNT
6.1 The Security Agent may place to the credit of a suspense account any
monies received under or in connection with this guarantee in order to
preserve the rights of the Security Agent (for the benefit of itself and
the other Secured Parties) to prove for the full amount of all of its
claims against any of the Principal Debtor and any other person.
6.2 The Security Agent may at any time, apply any of the monies referred to
in clause 6.1, in or towards satisfaction of any of the monies,
obligations and liabilities the subject of this Guarantee as the Security
Agent, in its absolute discretion, may from time to time conclusively
determine.
7. APPROPRIATION AND SUBROGATION
7.1 The Guarantor shall not and may not direct the application by the
Security Agent of any sums received by the Security Agent from the
Guarantor under, or pursuant to, any of the terms of this Guarantee.
7.2 The Guarantor shall have no right of subrogation in respect of payments
made to the Secured Parties hereunder until such time as all obligations
to the Secured Parties shall have been fully satisfied. In the case of
the liquidation, winding-up or bankruptcy of the Principal Debtor
(whether voluntary or involuntary) or in the event that the Principal
Debtor shall make an arrangement or composition with its creditors, the
Secured Parties shall have the right to rank for their full claims and to
receive all dividends or other payments in respect thereof until their
claims have been paid in full and the Guarantor shall continue to be
liable to the Secured Parties up to the amount guaranteed (less any
payments made by the Guarantor hereunder) for any balance which may be
owing to the Secured Parties by the Principal Debtor. If (a) the
Guarantor shall make payment to the Secured Parties of all or any part of
the obligations and (b) all the obligations shall be paid in full, the
Secured Parties will, at the Guarantor's request, forthwith, execute and
deliver to the Guarantor appropriate documents, without recourse and
without representation or warranty, necessary to evidence the transfer by
subrogation to the Guarantor of its interest in the obligations resulting
from such payment by the Guarantor.
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8. NEW ACCOUNTS
8.1 If this Guarantee ceases to be continuing for any reason whatsoever, then
the Security Agent may open a new account or accounts in the name of the
Principal Debtor.
8.2 If the Security Agent does not open a new account or accounts pursuant to
clause 8.1, it shall nevertheless be treated as if it had done so at the
time that this Guarantee ceases to be continuing (whether by
determination, calling in or otherwise) in relation to the Principal
Debtor.
8.3 As from that time, all payments made to the Security Agent by or on
behalf of the Principal Debtor shall be credited or be treated as having
been credited to the new account or accounts and shall not operate to
reduce the amount for which this Guarantee guarantees available at that
time nor shall the liability of the Guarantor under this Guarantee in any
manner be reduced or affected by any subsequent transactions, receipts or
payments into or out of any such accounts.
9. DISCHARGE TO BE CONDITIONAL
9.1 Any release, discharge or settlement between the Guarantor and the
Security Agent (for the benefit of itself and the other Secured Parties)
in relation to this Guarantee shall be conditional upon no right,
security, disposition or payment to the Security Agent by any of the
Guarantor and any other person being void, set aside or ordered to be
refunded pursuant to any enactment or law relating to breach of duty by
any person, bankruptcy, liquidation, administration, protection from
creditors generally or insolvency or for any other reason.
9.2 If any such right, security, disposition or payment is void or at any
time so set aside or ordered to be refunded, the Security Agent (for the
benefit of itself and the other Secured Parties) shall be entitled
subsequently to enforce this Guarantee against the Guarantor as if such
release, discharge or settlement had not occurred and any such security,
disposition or payment had not been made.
10. PAYMENTS AND TAXES
10.1 All sums payable by the Guarantor under this Guarantee shall be paid to
the Security Agent (for the benefit of itself and the other Secured
Parties) in full without:
10.1.1 any set-off, condition or counter-claim whatsoever; and
10.1.2 free and clear of all deductions or withholdings whatsoever save
only as may be required by law or regulation which in either case
is binding on it.
10.2 If any deduction or withholding is required by any law, practice or
regulation (whether or not such practice or regulation has the force of
law) in respect of any payment due from the Guarantor under this
Guarantee or is in any event made, the relative sum payable by the
Guarantor shall be increased so that, after making the minimum deduction
or withholding so required, the Guarantor shall pay to the Security Agent
for
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the benefit of itself and the other Secured Parties and the Security Agent
and the Secured Parties shall receive and be entitled to retain on the due
date for payment a net sum at least equal to the sum which it would have
received had no such deduction or withholding been required to be or had
in fact been made.
11. DEMANDS AND NOTIFICATION BINDING
11.1 Any demand, notification or certificate given by the Security Agent
specifying amounts due and payable under or in connection with any of the
provisions of this Guarantee shall, in the absence of manifest error, be
conclusive and binding on the Guarantor.
12. COSTS
12.1 The Guarantor shall, on demand and on a full indemnity basis, pay to the
Security Agent (for the benefit of itself and the other Secured Parties)
the amount of all costs and expenses (including legal and out-of-pocket
expenses and any Value Added Tax on such costs and expenses) which the
Security Agent incurs in connection with:-
12.1.1 the preparation, negotiation, execution and delivery of this
Guarantee;
12.1.2 any actual or proposed amendment, variation, supplement, waiver or
consent under or in connection with this Guarantee;
12.1.3 any discharge or release of this Guarantee;
12.1.4 the preservation or exercise (or attempted preservation or
exercise), and the enforcement (or attempted enforcement) of, any
rights under or in connection with, this Guarantee.
13. SET-OFF
13.1 The Security Agent (for the benefit of itself and the other Secured
Parties) and each other Secured Party may, following a demand under this
Guarantee but without notice to the Guarantor, apply any credit balance
which is at any time held by any office or branch of the Security Agent
for the account of the Guarantor in or towards satisfaction of any sum
then due and payable from the Guarantor under this Guarantee.
13.2 For the purposes of exercising any rights under this clause, or any
rights under the general law, any Secured Party may convert or translate
all or any part of such credit balance into another currency applying a
rate which in its opinion fairly reflects the relative prevailing rates
of exchange.
13.3 No Secured Party is obliged to exercise any of its rights under this
clause, which shall be without prejudice and in addition to any rights
under the general law.
13.4 In this clause "rights under the general law" means any rights of
set-off, combination or consolidation of accounts, lien or similar tight
which any Secured Party has under any applicable law.
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14. NOTICES
14.1 A demand notice or other communication to the Guarantor in connection
with this Guarantee:
14.1.1 shall be in writing and;
14.1.2 shall be left at or sent by facsimile or prepaid ordinary post
(airmail if posted to a place outside the United Kingdom) to the
Guarantor addressed to the person at the address identified with
its signature below.
14.2 A demand notice or other communication shall take effect from the time it
is received (or if earlier the time it is deemed to be received in
accordance with clause 14.3) unless a later time is specified in it.
14.3 A letter or facsimile is deemed to be received:-
14.3.1 in the case of a posted letter unless actually received earlier on
the second (fifth if posted to a place outside the United Kingdom)
day after posting; and
14.3.2 in the case of facsimile on production of a transmission report
from the machine from which the facsimile was sent which indicates
that the facsimile was sent in its entirety to the facsimile number
of the recipient.
15. TRANSFERS
15.1 This Guarantee is freely assignable or transferable by the Security Agent
(for the benefit of itself and the other Secured Parties).
15.2 The Guarantor may not assign any of its rights and may not transfer any
of its obligations under this Guarantee or enter into any transaction
which would result in any of those rights or obligations passing to
another person without the prior written consent of the Security Agent,
which may be withheld in the sole discretion of the Security Agent.
15.3 CURRENCY INDEMNITY
If, under any applicable law or regulation or pursuant to a judgment or
order being made or registered against the Guarantor or the liquidation of
the Guarantor or without limitation for any other reason, any payment
under or in connection with this Guarantee is made or falls to be
satisfied in a currency ("PAYMENT CURRENCY") other than the currency in
which such payment is expressed to be due under or in connection with this
Guarantee ("CONTRACTUAL CURRENCY") then, to the extent that the amount of
such payment actually received by the Security Agent, when converted into
the contractual currency at the rate of exchange falls short of the amount
due under or in connection with this Guarantee, the Guarantor, as a
separate and independent obligation, shall indemnify and hold harmless the
Security Agent against the amount of such shortfall. For the purposes of
this clause, "RATE OF EXCHANGE" means the rate at which the Security Agent
is able on
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or about the date of such payment to purchase, in accordance with its
normal practice, the contractual currency with the payment currency and
shall take into account (and the Guarantor shall be liable for) any
premium and other costs of exchange including any taxes or duties incurred
by reason of any such exchange.
16. MISCELLANEOUS
16.1 No delay or omission on the part of the Security Agent in exercising any
right or remedy under this Guarantee shall impair that right or remedy or
operate as or be taken to be a waiver of it, nor shall any single partial
or defective exercise of any such right or remedy preclude any other or
further exercise under this Guarantee of that or any other right or
remedy.
16.2 The Security Agent's rights under-this Guarantee are cumulative and not
exclusive of any rights provided by law and may be exercised from time to
time and as often as the Security Agent deems expedient.
16.3 Any waiver by the Security Agent of any terms of this Guarantee, or any
consent or approval given by the Security Agent under it, shall only be
effective if given in writing and then only for the purpose and upon the
terms and conditions, if any, on which it is given.
16.4 If at any time any one or more of the provisions of this Guarantee is or
becomes illegal, invalid or unenforceable in any respect under any law of
any jurisdiction, neither the legality, validity and enforceability of
the remaining provisions of this Guarantee nor the legality, validity or
enforceability of such provision under the law of any other jurisdiction
shall be in any way affected or impaired as a result.
16.5 The Guarantor shall at all times do, execute, acknowledge and deliver or
cause to be done, executed, acknowledged or delivered all such further
acts, deeds, transfers, assignments and assurances as the Security Agent
may reasonably require in order to give effect to the provisions of this
Guarantee and the provisions of the Charge.
16.6 This Guarantee may be executed in more than one counterpart each of which
shall constitute an original.
17. LANGUAGE
All notices demands or communications under or in connection with this
Guarantee shall be in English.
18. LAW AND JURISDICTION
19.1 This Guarantee shall be governed by and construed in accordance with the
laws of England and Wales.
19.2 The Guarantor irrevocably agrees for the benefit of the Security Agent
that the courts of England and/or any of the federal or State courts
sitting in The City of New York,
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Borough of Manhattan will have jurisdiction to hear and determine any
suit, action or proceeding, and to settle any disputes which may arise out
of, or in connection with, this Guarantee and, for that purpose,
irrevocably submits to the jurisdiction of such courts.
19.3 The Guarantor irrevocably waives any objection which it might now or
hereafter have to any of the courts referred to in clause 19.2 being
nominated as the forum to hear and determine any suit, action or
proceeding, and to settle any disputes which may arise out of, or in
connection with, this Guarantee and agrees not to claim that any such
court is not a convenient or inappropriate forum.
19.4 The submission to the jurisdiction of the courts referred to in clause
19.2 will not (and is not to be construed so as to) limit the right of the
Security Agent to take proceedings against the Guarantor in any other
court of competent jurisdiction, nor will the taking of proceedings in any
one or more jurisdictions preclude the taking of proceedings in any other
jurisdiction, whether concurrently or not.
19.5 The Guarantor hereby consents in respect of any legal action or proceeding
arising out of, or in connection with, this Guarantee, to the giving of
any relief, or the issue of any process in connection with such action or
proceeding including, without limitation, the making, enforcement or
execution against any property whatsoever (irrespective of its use or
intended use) of any order or judgment which may be made or given in such
action or proceeding.
19.6 To the extent that the Guarantor may in any jurisdiction claim for itself
or its assets, immunity from suit, execution, attachment (whether in aid
of execution, before judgment or otherwise) or other legal process and, to
the extent that in any such jurisdiction there may be attributed to itself
or its assets such immunity (whether or not claimed), the Guarantor hereby
irrevocably agrees that it will not claim, and hereby irrevocably waives,
such immunity to the full extent permitted by the law of such
jurisdiction.
19. SECURITY AGENT
19.1 The relevant provisions of the Transaction Documents shall apply to the
Security Agent's rights, obligations, powers and duties under this
Guarantee as if set out in this Guarantee in full.
20. TERMINATION
21.1 This Guarantee is a continuing security, and shall not terminate or be
discharged until the earlier of (a) performance and indefeasible payment
in full of all of the Secured Obligations and (b) the date on which a
Qualified IPO (as defined in the Notes) is consummated.
21. RIGHTS OF THIRD PARTIES
Save as expressly provided to the contrary in any Transaction Document:
IN WITNESS whereof this Guarantee and Indemnity has been executed as a Deed the
day and year first before written.
EXECUTED as a Deed (but not delivered
until the date hereof by MITEL
NETWORKS LIMITED and signed by
two directors or a director and the secretary
Director /s/ [ILLEGIBLE]
------------------------
Director /s/ Xxxx Xxxxxxx
------------------------
NOTICE DETAILS
Address: Mitel Business Xxxx
Xxxxxxxxxxx
Xxxxxxxx
Xxxxx XX00 0XX
Fax No.: 0000 000 0000
Tel. No.: 0000 000 0000
Attention: Xxxxx Xxxxx
EXECUTED as a Deed (but not delivered HIGHBRIDGE INTERNATIONAL LLC
until the date hereof by the SECURITY
AGENT acting by its duly authorized BY: HIGHBRIDGE CAPITAL
signatories MANAGEMENT, LLC
By: ___________________________________
Name: Xxx X. Xxxxxx
Title: Managing Director
IN WITNESS whereof this Guarantee and Indemnity has been executed as a Deed the
day and year first before written.
EXECUTED as a Deed (but not delivered
until the date hereof by MITEL
NETWORKS LIMITED and signed by two directors or
a director and the secretary
Director _________________________________
Director/Secretary ____________________________
NOTICE DETAILS
Address: Mitel Business Xxxx
Xxxxxxxxxxx
Xxxxxxxx
Xxxxx XX00 0XX
Fax No.: 0000 000 0000
Tel. No.: 0000 000 0000
Attention: Xxxxx Xxxxx
EXECUTED as a Deed (but not delivered HIGHBRIDGE INTERNATIONAL LLC
until the date hereof by the SECURITY
AGENT acting by its duly authorized BY: HIGHBRIDGE CAPITAL
signatories MANAGEMENT, LLC
By: /s/ Xxxx X. Chill
------------------------------------
Name: Xxxx X. Chill
Title: Managing Director
