EXHIBIT 10.22



 





Exhibit 10.22



CONSENT RELATED TO

AMENDED AND RESTATED CREDIT AND GUARANTY AGREEMENT




     THIS CONSENT RELATED TO AMENDED AND RESTATED CREDIT AND GUARANTY AGREEMENT
(this “Consent”), is made and entered into as of October 22, 2004, by and among
IPC ACQUISITION CORP., a Delaware corporation (the “Borrower”), certain
subsidiaries of the Borrower signatory hereto (the “Guarantors”), the Lenders
signatory hereto, and GENERAL ELECTRIC CAPITAL CORPORATION, a Delaware
corporation, as Administrative Agent and Collateral Agent for the Lenders (the
“Agent”).



W I T N E S S E T H:




     WHEREAS, the Borrower, the Guarantors, Goldman Sachs Credit Partners L.P.,
as Sole Lead Arranger and Syndication Agent, CIT Lending Services Corporation,
as Documentation Agent, the Lenders and the Agent are parties to that certain
Amended and Restated Credit and Guaranty Agreement, dated as of August 29, 2003
(as amended, restated, supplemented or otherwise modified from time to time,
the “Credit Agreement”; capitalized terms used herein and not otherwise defined
shall have the meanings assigned to such terms in the Credit Agreement),
pursuant to which, among other things, the Lenders have made certain financial
accommodations available to the Borrower; and



     WHEREAS, the Borrower has requested that the Lenders and the Agent consent
to a prepayment in any Fiscal Year based on the Borrower’s estimated
Consolidated Excess Cash Flow for such Fiscal Year, and the Lenders and the
Agent are willing to do so, subject to the terms and conditions hereof.



     NOW, THEREFORE, for good and valuable consideration, the sufficiency and
receipt of all of which are acknowledged, the Borrower, the Guarantors, the
Lenders and the Agent agree as follows:



     1. Consent. The Borrower hereby requests, and subject to the terms and
conditions contained herein, the Lenders and the Agent hereby agree, to allow
the Borrower to make a prepayment of the mandatory repayment set forth in
Section 2.12(e) of the Credit Agreement for any Fiscal Year, based on the
Borrower’s estimated Consolidated Excess Cash Flow for such Fiscal Year (“ECF
Prepayment”). The Borrower, the Agent and the Lenders hereby acknowledge and
agree that in the event the Borrower’s determination of any such ECF Prepayment
(i) does not equal or exceed the amount required to be prepaid pursuant to
Section 2.12(e) of the Credit Agreement for such Fiscal Year, the Borrower
shall promptly (and in no event later than the period set forth in Section
2.12(e) of the Credit Agreement) make an additional prepayment of the Loans
and/or reduction in the Revolving Commitments in an amount equal to such
shortfall; or (ii) was more than the amount required to be prepaid pursuant to
Section 2.12(e) of the Credit Agreement for such Fiscal Year, the difference
between the ECF Payment and the amount required to be paid pursuant to Section
2.12(e) of the Credit Agreement



 









 







shall be deemed to have been a voluntary prepayment made on the date such
prepayment was actually made and shall be applied in accordance with Section
2.13(a) of the Credit Agreement.



     2. Condition to Effectiveness. Notwithstanding any other provision of this
Consent and without affecting in any manner the rights of the Lenders and the
Agent hereunder, it is understood and agreed that this Consent shall not become
effective, and the Borrower shall have no rights under this Consent, unless and
until the Agent shall have received duly executed, original signature pages to
this Consent from the Lenders, the Borrower, the Agent, and each Guarantor not
later than the date of this Consent.



     3. Representations and Warranties. To induce the Lenders and the Agent to
enter into this Consent, the Borrower and each Guarantor (collectively, the
“Credit Parties”) hereby represent and warrant to the Lenders and the Agent
that:



     (a) The execution, delivery and performance by each Credit Party of this
Consent does not and will not (i) violate any provision of any law or any
governmental rule or regulation applicable to such Credit Party, any of the
Organizational Documents of such Credit Party, or any order, judgment or decree
of any court or other agency of government binding on such Credit Party except
to the extent such violation could not be reasonably expected to have a
Material Adverse Effect; (ii) conflict with, result in a breach of or
constitute (with due notice or lapse of time or both) a default under any
Contractual Obligation of such Credit Party except to the extent such conflict,
breach or default could not reasonably be expected to have a Material Adverse
Effect; (iii) result in or require the creation or imposition of any Lien upon
any of the properties or assets of such Credit Party (other than any Liens
created under any of the Credit Documents in favor of the Agent, on behalf of
Secured Parties); or (iv) require any approval of stockholders, members or
partners or any approval or consent of any Person under any Contractual
Obligation of such Credit Party, except for such approvals or consents which
will be obtained on or before the date of this Consent and disclosed in writing
to the Agent and the Lenders and except for any such approvals or consents the
failure of which to obtain will not have a Material Adverse Effect;



     (b) This Consent has been duly executed and delivered for the benefit of
or on behalf of each Credit Party and constitutes a legal, valid and binding
obligation of each Credit Party, enforceable against such Credit Party in
accordance with its terms except as the enforceability hereof may be limited by
bankruptcy, insolvency, reorganization, moratorium and other similar laws
relating to or limiting creditors’ rights generally or by equitable principles
relating to enforceability;



     (c) After giving effect to this Consent, the representations and
warranties contained in the Credit Agreement and the other Credit Documents are
true and correct in all material respects (except that, to the extent any such
representation or warranty is qualified by materiality or Material Adverse
Effect, such representation or warranty shall be true and correct in all
respects), except to the extent such representations and warranties
specifically relate to an earlier date, in which case such representations and
warranties shall have been true and correct in all material respects (except
that, to the extent any such representation or warranty is qualified by
materiality or Material Adverse Effect, such representation or warranty shall
be true and correct in all



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respects) on and as of such earlier date, and no Default or Event of Default
has occurred and is continuing as of the date hereof;



     4. Reaffirmations and Acknowledgments.



     (a) Reaffirmation of Guaranty. Each Guarantor consents to the execution
and delivery by the Borrower of this Consent, and jointly and severally
ratifies and confirms the terms of the Credit Agreement with respect to the
indebtedness now or hereafter outstanding thereunder as amended hereby and all
promissory notes issued thereunder. Each Guarantor acknowledges that,
notwithstanding anything to the contrary contained herein or in any other
document evidencing any indebtedness of the Borrower to the Lenders or any
other obligation of the Borrower, or any actions now or hereafter taken by the
Lenders with respect to any obligation of the Borrower, the Credit Agreement
(i) is and shall continue to be a primary obligation of such Guarantors, (ii)
is and shall continue to be an absolute, unconditional, joint and several,
continuing and irrevocable guaranty of payment, and (iii) is and shall continue
to be in full force and effect in accordance with its terms. Nothing contained
herein to the contrary shall release, discharge, modify, change or affect the
original liability of such Guarantors under the Credit Agreement.



     (b) Acknowledgment of Perfection of Security Interest. Each Credit Party
hereby acknowledges that, as of the date hereof, the security interests and
liens granted to the Agent and the Lenders under the Credit Agreement and the
other Credit Documents are in full force and effect, are properly perfected and
are enforceable in accordance with the terms of the Credit Agreement and the
other Credit Documents.



     5. Effect of Consent. Except as set forth expressly herein, all terms of
the Credit Agreement and the other Credit Documents shall be and remain in full
force and effect and shall constitute the legal, valid, binding and enforceable
obligations of the Credit Parties except as the enforceability hereof may be
limited by bankruptcy, insolvency, reorganization, moratorium and other similar
laws relating to or limiting creditors’ rights generally or by equitable
principles relating to enforceability. The execution, delivery and
effectiveness of this Consent shall not, except as expressly provided herein,
operate as a waiver of any right, power or remedy of the Lenders under the
Credit Agreement, nor constitute a waiver of any provision of the Credit
Agreement. This Consent shall constitute a Credit Document for all purposes of
the Credit Agreement.



     6. Governing Law. This Consent shall be governed by, and construed in
accordance with, the internal laws of the State of New York and all applicable
federal laws of the United States of America.



     7. No Novation. This Consent is not intended by the parties to be, and
shall not be construed to be, a novation of the Credit Agreement or an accord
and satisfaction in regard thereto.



     8. Costs and Expenses. The Borrower agrees to pay on demand all reasonable
costs and expenses of the Agent in connection with the preparation, execution
and delivery of this



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Consent including, without limitation, the reasonable fees and out-of-pocket
expenses of outside counsel for the Agent with respect thereto.



     9. Counterparts. This Consent may be executed by one or more of the
parties hereto in any number of separate counterparts, each of which shall be
deemed an original and all of which, taken together, shall be deemed to
constitute one and the same instrument. Delivery of an executed counterpart of
this Consent by facsimile transmission or by electronic mail in pdf form shall
be as effective as delivery of a manually executed counterpart hereof.



     10. Binding Nature. This Consent shall be binding upon and inure to the
benefit of the parties hereto, their respective successors,
successors-in-titles, and assigns.



     11. Entire Understanding. This Consent and the other Credit Documents set
forth the entire understanding of the parties with respect to the matters set
forth herein, and shall supersede any prior negotiations or agreements, whether
written or oral, with respect thereto.



     12. Release. Each Credit Party hereby releases, acquits, and forever
discharges the Agent and each of the Lenders, and each and every past and
present subsidiary, affiliate, stockholder, officer, director, agent, servant,
employee, representative, and attorney of the Agent and the Lenders, from any
and all claims, causes of action, suits, debts, liens, obligations,
liabilities, demands, losses, costs and expenses (including attorneys’ fees) of
any kind, character, or nature whatsoever, known or unknown, fixed or
contingent, which such Credit Party may have or claim to have now or which may
hereafter arise out of or connected with any act of commission or omission of
the Agent or the Lenders with respect to the Credit Agreement or any other of
the Credit Documents existing or occurring on or prior to the date of this
Consent, provided that this paragraph shall not release the Agent or the
Lenders in respect of any of the foregoing acts of commission or omission to
the extent existing or occurring subsequent to the date of this Consent. The
provisions of this paragraph shall be binding upon each Credit Party and shall
inure to the benefit of the Agent, the Lenders, and their respective heirs,
executors, administrators, successors and assigns.



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     IN WITNESS WHEREOF, the parties hereto have caused this Consent to be duly
executed by their respective authorized officers as of the day and year first
above written.


	 	 	 	 	 
	 	BORROWER:


IPC ACQUISITION CORP.

 	 
	 	By:  	                        /s/ Timothy Whelan
 	 
	 	 	Name:  	Timothy Whelan 	 
	 	 	Title:  	Chief Financial Officer 	 
	 



	 	 	 	 	 
	 	GUARANTORS:


IPC INFORMATION SYSTEMS, LLC

 	 
	 	By:  	                        /s/ Timothy Whelan
 	 
	 	 	Name:  	Timothy Whelan 	 
	 	 	Title:  	Chief Financial Officer 	 
	 



	 	 	 	 	 
	 	IPC FUNDING CORP.

 	 
	 	By:  	                        /s/ Timothy Whelan
 	 
	 	 	Name:  	Timothy Whelan 	 
	 	 	Title:  	Chief Financial Officer 	 
	 



	 	 	 	 	 
	 	V BAND CORPORATION

 	 
	 	By:  	                        /s/ Timothy Whelan
 	 
	 	 	Name:  	Timothy Whelan 	 
	 	 	Title:  	Chief Financial Officer 	 
	 



	 	 	 	 	 
	 	IPC INFORMATION SYSTEMS FAR EAST INC.

 	 
	 	By:  	                        /s/ Timothy Whelan
 	 
	 	 	Name:  	Timothy Whelan 	 
	 	 	Title:  	Chief Financial Officer 	 




 









 






	 	 	 	 	 



	 	 	 	 	 
	 	IPC INFORMATION SYSTEMS HOLDINGS, INC.

 	 
	 	By:  	                        /s/ Timothy Whelan
 	 
	 	 	Name:  	Timothy Whelan 	 
	 	 	Title:  	Chief Financial Officer 	 
	 



	 	 	 	 	 
	 	IPC INFORMATION SYSTEMS HOLDINGS USA, INC.

 	 
	 	By:  	                        /s/ Timothy Whelan
 	 
	 	 	Name:  	Timothy Whelan 	 
	 	 	Title:  	Chief Financial Officer 	 
	 



	 	 	 	 	 
	 	IPC INFORMATION SYSTEMS SERVICES, INC.

 	 
	 	By:  	                        /s/ Timothy Whelan
 	 
	 	 	Name:  	Timothy Whelan 	 
	 	 	Title:  	Chief Financial Officer 	 
	 



	 	 	 	 	 
	 	IPC INFORMATION SYSTEMS HOLDINGS, L.L.C.

 	 
	 	By:  	                        /s/ Timothy Whelan
 	 
	 	 	Name:  	Timothy Whelan 	 
	 	 	Title:  	Chief Financial Officer 	 
	 



	 	 	 	 	 
	 	IPC INFORMATION SYSTEMS HOLDINGS USA, L.L.C.

 	 
	 	By:  	                        /s/ Timothy Whelan
 	 
	 	 	Name:  	Timothy Whelan 	 
	 	 	Title:  	Chief Financial Officer 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	IPC INFORMATION SYSTEMS SERVICES, L.L.C.

 	 
	 	By:  	                        /s/ Timothy Whelan
 	 
	 	 	Name:  	Timothy Whelan 	 
	 	 	Title:  	Chief Financial Officer 	 
	 



	 	 	 	 	 
	 	GAINS ACQUISITION CORP.

 	 
	 	By:  	                        /s/ Timothy Whelan
 	 
	 	 	Name:  	Timothy Whelan 	 
	 	 	Title:  	Chief Financial Officer 	 
	 



	 	 	 	 	 
	 	IPC NETWORK SERVICES, INC.

 	 
	 	By:  	                        /s/ Timothy Whelan
 	 
	 	 	Name:  	Timothy Whelan 	 
	 	 	Title:  	Chief Financial Officer 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	AGENT AND LENDERS:


GENERAL ELECTRIC CAPITAL

CORPORATION,

as Administrative Agent, Collateral

Agent and Lender

 	 
	 	By:  	                       /s/ C. Fielder Shurling
 	 
	 	 	Duly Authorized Signatory 	 
	 	 	 	 
	 



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	 	CIT LENDING SERVICES CORPORATION,

as a Lender

 	 
	 	By:  	                     /s/ Douglas E. Maher
 	 
	 	 	Name:  	Douglas E. Maher 	 
	 	 	Title:  	Vice President 	 
	 



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