EXHIBIT 10.4C
EXECUTION
MITEL CORPORATION
SECOND AMENDMENT AND
LIMITED WAIVER TO CREDIT AGREEMENT
This SECOND AMENDMENT AND LIMITED WAIVER TO CREDIT AGREEMENT
(this "Amendment") is dated as of August 6, 1998, and entered into by and among
Mitel Corporation, a corporation organized under the laws of Canada ("Company"),
the financial institutions listed on the signature pages hereof ("Lenders"),
▇▇▇▇▇▇▇ ▇▇▇▇▇ Credit Partners L.P. ("GSCP") as arranger, advisor and syndication
agent (in such capacity, the "Syndication Agent") and Canadian Imperial Bank of
Commerce ("CIBC"), as Administrative Agent, and for purposes of Section 11
hereof, the Subsidiary Guarantors listed on the signature pages hereto
(collectively the "Credit Support Parties"), and is made with reference to that
certain Credit Agreement dated as of February 12, 1998, by and among Company,
Lenders, GSCP, as Syndication Agent, and CIBC, as Administrative Agent, as
amended by that certain First Amendment and Limited Waiver dated as of March 16,
1998 (as so amended, the "Credit Agreement"). Capitalized terms used herein
without definition shall have the same meanings herein as set forth in the
Credit Agreement.
RECITALS
WHEREAS, Mitel Telecom Limited has acquired the shares of 62
VSQ Limited, a company organized under the laws of England and Wales (now know
as Mitel Corporation Limited) ("MCL") and its wholly owned Subsidiary TSC Vicom
Limited, a company organized under the laws of Scotland ("TSC") pursuant to
subsection 7.7(v) of the Credit Agreement for an aggregate purchase price of
less than $10,000,000; and
WHEREAS, Company has requested that, (i) Requisite Lenders
waive the requirement set forth in subsection 6.8C of the Credit Agreement with
respect to MCL and TSC, (ii) in the event Company acquires a new Subsidiary in
connection with a Permitted Acquisition, Company not be required to comply with
the provisions of subsection 6.8C of the Credit Agreement if such new Subsidiary
has assets on a consolidated basis of less than $10,000,000, and (iii) certain
other amendments be made to the Credit Agreement as more fully set forth below.
NOW, THEREFORE, in consideration of the premises and the
agreements, provisions and covenants herein contained, the parties hereto agree
as follows:
Section 1. AMENDMENTS TO CREDIT AGREEMENT
A. Subsection 6.1. Subsection 6.1 is hereby amended by
inserting the parenthetical "(or to the Administrative Agent with instructions
to deliver to Lenders, in which case Administrative Agent shall promptly so
deliver)" immediately after the phrase "Company will deliver to Syndicate Agent,
Administrative Agent and Lenders" appearing in the second sentence thereof.
B. Subsection 6.8C. Subsection 6.8C of the Credit Agreement is
hereby amended by inserting the following proviso at the end thereof:
"; provided, however, that, notwithstanding anything in the foregoing
to the contrary, in the event that any Person becomes a Subsidiary of
Company after the date hereof, Company shall not be required to comply
with clauses (i) through (iii) of this subsection 6.8C in respect of
such Subsidiary for so long as (x) such Subsidiary does not own or
acquire assets (including receivables) on a consolidated basis with an
aggregate fair market value (without netting such fair market value
against any liability of such Subsidiary) exceeding $10,000,000 and (y)
the aggregate fair market value of the assets (including receivables)
on a consolidated basis of all such Subsidiaries (without netting such
fair market value against any liability of such Subsidiaries) does not
exceed $35,000,000 in the aggregate."
C. Subsection 7.3(ii). Subsection 7.3(ii) of the Credit
Agreement is hereby amended and restated in its entirety as follows:
"(ii) Company and its Subsidiaries may (a) continue to own the
Investments owned by them as of the Closing Date in any
Subsidiaries of Company, (b) make and maintain Investments in
any Subsidiary Guarantor from and after the Closing Date and
(c) make Investments in any Immaterial Subsidiary from and
after the Closing Date in an aggregate cumulative amount not
to exceed $10,000,000; provided, however, that from and after
the Closing Date, the aggregate cumulative amount of
Investments in all Immaterial Subsidiaries pursuant to this
subsection 7.3(ii) shall not exceed $35,000,000; provided
further, however, that to the extent any such Immaterial
Subsidiary becomes a Subsidiary Guarantor after or as a result
of any such Investment under this clause (c), the amount of
all Investments in such Immaterial Subsidiary pursuant to this
subsection 7.3(ii) shall not then be counted towards the
foregoing $10,000,000 or $35,000,000 limitations;"
D. Subsection 7.4(iv). Subsection 7.4(iv) of the Credit
Agreement is hereby amended by deleting the figure "$500,000,000" appearing
therein and inserting the figure "$600,000,000" in its place.
E. Subsection 7.4(vi). Subsection 7.4(vi) of the Credit
Agreement is hereby amended and restated in its entirety as follows:
"(vi) Company and its Subsidiaries may become and remain
liable with respect to Contingent Obligations under guarantees
in the ordinary course of business of (a) the obligations of
suppliers, customers, franchisees and
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licensees of Company and its Subsidiaries and (b) the
obligations of any Subsidiary of Company under real property
leaseholds in an aggregate amount under all such guaranties
not to exceed at any time $10,000,000;"
F. Subsection 7.10. Subsection 7.10 of the Credit Agreement is
hereby amended by amending and restating the proviso at the end thereof in its
entirety as follows:
"; provided, however, that, Company and its Subsidiaries may become and
remain liable as lessee with respect to (a) sale and lease-back
transactions with respect to assets with a fair market value not to
exceed $8,000,000 in the aggregate in any Fiscal Year and (b) sale and
lease-back transactions in existence on the Closing Date and set forth
on Schedule 7.10 annexed hereto."
G. Schedules 4.1C and 5.1. Schedules 4.1C (Corporate and
Capital Structure; Ownership; Management) and 5.1 (Subsidiaries of Company) of
the Credit Agreement are hereby amended to reflect that (i) Mitel Semiconductor,
Inc. is now a wholly owned Subsidiary of Mitel, Inc. and (ii) MCL and TSC are
wholly owned Subsidiaries of Mitel Telecom.
Section 2. LIMITED WAIVERS TO THE CREDIT AGREEMENT
Limited Waiver Under Subsection 6.8C. On the basis of the
representations and warranties contained in this Amendment, and subject to the
terms and conditions of this Amendment, Requisite Lenders hereby agree to waive
Company's compliance with the provisions of subsection 6.8C with respect to MCL
and TSC during the period prior to the Second Amendment Effective Date.
Section 3. LIMITATION OF WAIVER
Without limiting the generality of the provisions of Section
10.6 of the Credit Agreement, the waiver set forth above shall be limited
precisely as written and relates solely to noncompliance by Borrower with the
provisions of Section 6.8C of the Credit Agreement in the manner and to the
extent described above and nothing in this Amendment shall be deemed to:
(a) constitute a waiver of compliance by Borrower with respect
to (i) Section 6.8C of the Credit Agreement in any other
instance or (ii) any other term, provision or condition of the
Credit Agreement or any other instrument or agreement referred
to therein; or
(b) prejudice any right or remedy that any Agent or any Lender
may now have or may have in the future under or in connection
with the Credit Agreement or any other instrument or agreement
referred to therein.
Except as expressly set forth herein, the terms, provisions
and conditions of the Credit Agreement and the other Loan Documents shall remain
in full force and effect and in all other respects are hereby ratified and
confirmed.
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Section 4. CONDITIONS TO EFFECTIVENESS
Notwithstanding anything to the contrary herein, this
Amendment shall become effective only upon the satisfaction of the following
conditions precedent (the date of satisfaction of such conditions being referred
to herein as the "Second Amendment Effective Date"):
A. Company and each Credit Support Party shall have delivered
to Administrative Agent sufficient originally executed copies
for each Lender and its counsel of this Amendment;
B. Requisite Lenders shall each have executed a counterpart of
this Amendment; and
C. Company and Administrative Agent shall have received
written notification of such execution by such Lenders and
authorization of delivery thereof.
Section 5. REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Amendment and to
amend the Credit Agreement in the manner provided herein, Company hereby
represents and warrants that after giving effect to this Amendment:
A. Corporate Power and Authority. Each of Company and each
Credit Support Party has all requisite corporate power and
authority to enter into this Amendment, and each of Company
and each Credit Support Party has all requisite corporate
power and authority to carry out the transactions contemplated
by, and perform its obligations under, the Credit Agreement,
as amended by this Amendment.
B. Authorization of Agreements. The execution and delivery of
this Amendment and the performance of the Credit Agreement as
amended by this Amendment (as so amended, the "Amended
Agreement") have been duly authorized by all necessary
corporate action on the part of Company.
C. No Conflict. The execution and delivery by Company of this
Amendment and the performance by Company of the Amended
Agreement do not and will not (i) violate any provision of any
law or any governmental rule or regulation applicable to
Company or any of its Subsidiaries, the Certificate or
Articles of Incorporation or Bylaws (or comparable
organizational documents) of Company or any of its
Subsidiaries or any order, judgment or decree of any court or
other agency or government binding on Company or any of its
Subsidiaries, (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 Company or any of
its Subsidiaries (other than, with respect to the exercise of
certain remedies under the U.K. Guarantee and Debenture, as
such remedies may be affected by certain government contracts
in the United
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Kingdom), (iii) result in or require the creation or
imposition of any Lien upon any of the properties or assets of
Company or any of its Subsidiaries (other than Liens created
under any of the Loan Documents in favor of Administrative
Agent on behalf of Lenders), or (iv) require any approval of
stockholders or any approval or consent of any Person under
any Contractual Obligation of Company or any of its
Subsidiaries.
D. Governmental Consents. The execution and delivery by
Company of this Amendment and the performance by Company of
the Amended Agreement do not and will not require any
registration with, consent or approval of or notice to, or
other action to, with or by, any multi-national, federal,
provincial, state, municipal, local or other governmental
authority or regulatory body.
E. Binding Obligation. This Amendment and the Amended
Agreement have been duly executed and delivered by Company and
are the legally valid and binding obligations of Company,
enforceable against Company in accordance with their
respective terms, except as may be limited by bankruptcy,
insolvency reorganization, moratorium or similar laws relating
to or limiting creditors' rights generally or by equitable
principles relating to enforceability.
F. Incorporation of Representations and Warranties From Credit
Agreement. The representations and warranties contained in
Section 5 of the Credit Agreement are and will be true,
correct and complete in all material respects on and as of the
Second Amendment Effective Date to the same extent as though
made on and as of that date, except to the extent such
representations and warranties specifically relate to an
earlier date, in which case they were true, correct and
complete in all material respects on and as of such earlier
date.
G. Absence of Default. No event has occurred and is continuing
or will result from the consummation of the transactions
contemplated by this Amendment that would constitute an Event
of Default or a Potential Event of Default.
H. No Change to Organizational Documents. Neither the
Certificate of Incorporation nor the Bylaws of Company has
been amended, supplemented or otherwise modified since the
Closing Date.
Section 6. REFERENCE TO AND EFFECT ON THE CREDIT AGREEMENT AND THE
OTHER LOAN DOCUMENTS.
A. On and after the Second Amendment Effective Date, each
reference in the Credit Agreement to "this Agreement", "hereunder", "hereof",
"herein" or words of like import referring to the Credit Agreement, and each
reference in the other Loan
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Documents to the "Credit Agreement", "thereunder", "thereof" or words of like
import referring to the Credit Agreement shall mean and be a reference to the
Amended Agreement.
B. Except as specifically amended by this Amendment, the
Credit Agreement and the other Loan Documents shall remain in full force and
effect and are hereby ratified and confirmed.
C. The execution, delivery and performance of this Amendment
shall not, except as expressly provided herein, constitute a waiver of any
provision of, or operate as a waiver of any right, power or remedy of any Agent
or any Lender under, the Credit Agreement or any of the other Loan Documents.
Section 7. FEES AND EXPENSES.
Company acknowledges that all costs, fees and expenses as
described in subsection 10.2 of the Credit Agreement incurred by Agents and
their respective counsel with respect to this Amendment and the documents and
transactions contemplated hereby shall be for the account of Company.
Section 8. HEADINGS.
Section and subsection headings in this Amendment are included
herein for convenience of reference only and shall not constitute a part of this
Amendment for any other purpose or be given any substantive effect.
Section 9. COUNTERPARTS
This Amendment may be executed in any number of counterparts
and by different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument; signature pages may
be detached from multiple separate counterparts and attached to a single
counterpart so that all signature pages are physically attached to the same
document.
Section 10. GOVERNING LAW
THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING WITHOUT
LIMITATION SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW
YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
Section 11. ACKNOWLEDGEMENT AND CONSENT BY CREDIT SUPPORT PARTIES
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Each undersigned Credit Support Party is a party to one or
more of the Subsidiary Security Agreement (U.S.), the Subsidiary Pledge
Agreement (U.S.), the Subsidiary Patent and Trademark Security Agreement (U.S.),
the U.K. Pledge Agreement, the U.K. Guarantee and Debenture, the Copyright
Security Agreement and certain other Collateral Documents delivered pursuant to
the Credit Agreement (collectively, the "Subsidiary Collateral Documents") and
either the Subsidiary Guaranty or the U.K. Guarantee and Debenture in each case
as amended through the Second Amendment Effective Date, pursuant to which each
Credit Support Party has (a) guarantied the Obligations and (b) created Liens in
favor of Administrative Agent on certain Collateral and pledged certain
Collateral to Administrative Agent to secure the obligations of such Credit
Support Parties under the Guaranties. The Subsidiary Guaranty, U.K. Guarantee
and Debenture and the other Subsidiary Collateral Documents are collectively
referred to herein as the "Credit Support Documents".
Each Credit Support Party hereby acknowledges that it has
reviewed the terms and provisions of the Credit Agreement and this Amendment and
consents to the amendment of the Credit Agreement effected pursuant to this
Amendment. Each Credit Support Party hereby confirms that each Credit Support
Document to which it is a party or otherwise bound and all Collateral encumbered
thereby will continue to guaranty or secure, as the case may be, to the fullest
extent possible the payment and performance of all "Guarantied Obligations" and
"Secured Obligations", as the case may be (in each case as such terms are
defined in the applicable Credit Support Document) and "Indebtedness" (as
defined in the U.K. Guarantee and Debenture), including without limitation the
payment and performance of all such "Guarantied Obligations", "Secured
Obligations" or "Indebtedness", as the case may be, in respect of the
Obligations of Company now or hereafter existing under or in respect of the
Amended Agreement and the Notes defined therein.
Each Credit Support Party acknowledges and agrees that any of
the Credit Support Documents to which it is a party or otherwise bound shall
continue in full force and effect and that all of its obligations thereunder
shall be valid and enforceable and shall not be impaired or limited by the
execution or effectiveness of this Amendment. Each Credit Support Party
represents and warrants that all representations and warranties made by it
contained in the Credit Support Documents to which it is a party or otherwise
bound are true, correct and complete in all material respects on and as of the
Second Amendment Effective Date to the same extent as though made on and as of
that date, except to the extent such representations and warranties specifically
relate to an earlier date, in which case they were true, correct and complete in
all material respects on and as of such earlier date.
Each Credit Support Party acknowledges and agrees that (i)
notwithstanding the conditions to effectiveness set forth in this Amendment,
such Credit Support Party is not required by the terms of the Credit Agreement
or any other Loan Document to consent to the amendments to the Credit Agreement
effected pursuant to this Amendment and (ii) nothing in the Credit Agreement,
this Amendment or any other Loan Document shall be deemed to require the consent
of such Credit Support Party to any future amendments to the Credit Agreement.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
COMPANY:
MITEL CORPORATION
Name:
Title:
LENDERS:
▇▇▇▇▇▇▇ SACHS CREDIT PARTNERS L.P.,
as a Lender and as Syndication Agent
Authorized Signatory
▇▇▇▇▇▇▇ ▇▇▇▇▇ CANADA CREDIT PARTNERS CO.,
as a Lender
Authorized Signatory
CANADIAN IMPERIAL BANK OF COMMERCE,
as a Lender and as Administrative Agent
Executive Director
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CREDIT SUPPORT PARTIES:
MITEL TELECOM LIMITED
Name:
Title:
MITEL SEMICONDUCTOR LIMITED
Name:
Title:
MITEL, INC.
Name:
Title:
MITEL TELECOMMUNICATIONS SYSTEMS, INC.
Name:
Title:
MITEL SEMICONDUCTOR AMERICAS, INC.
Name:
Title:
MITEL SEMICONDUCTOR, INC.
Name:
Title:
MITEL (BARBADOS) LTD.
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Name:
Title:
▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇
Name:
Title:
▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇, COMMERCE
Name:
Title:
12
BANK OF TOKYO-MITSUBISHI (CANADA)
Name:
Title:
▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Name:
Title:
▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
Name:
Title:
▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇
Name:
Title:
16
FUJI BANK CANADA
Name:
Title:
17
SOCIETE GENERALE CANADA
Name:
Title:
▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇
Name:
Title:
▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ (▇▇▇▇▇▇)
Name:
Title:
20
DRESDNER BANK CANADA,
Name:
Title:
21
CREDIT LYONNAIS CANADA,
Name:
Title:
22
CYPRESS TREE INVESTMENT MANAGEMENT
COMPANY, INC.,
As: Attorney-in-Fact and on behalf of First
Allmerica Financial Life Insurance Company
as Portfolio Manager,
Name:
Title:
23
FC CBO LIMITED
Name:
Title:
24
ALLIANCE CAPITAL MANAGEMENT L.P.,
as Manager on behalf of ALLIANCE CAPITAL
FUNDING L.L.C.
Name:
Title:
25
CREDIT AGRICOLE INDOSUEZ
Name:
Title:
26
OSPREY INVESTMENTS PORTFOLIO
Citibank, N.A., as Manager
Name:
Title:
27
GENERAL ELECTRIC CAPITAL CORPORATION
Name:
Title:
28
▇▇▇ ▇▇▇▇▇▇ AMERICAN CAPITAL PRIME RATE
INCOME TRUST
Name:
Title:
29
OCTAGON LOAN TRUST
Name:
Title:
30
SENIOR DEBT PORTFOLIO
By: Boston Management and Research,
as Investment Advisor
Name:
Title:
▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (▇▇▇▇▇), INC.
Name:
Title:
32
▇▇▇▇▇▇▇ ▇▇▇▇▇ SENIOR FLOATING RATE
FUND, INC.
Name:
Title:
33
▇▇▇▇▇▇▇ ▇▇▇▇▇ PRIME RATE PORTFOLIO
Name:
Title:
34
PRIME RATE INCOME TRUST
Name:
Title:
35
PROTECTIVE ASSET MANAGEMENT COMPANY
Name:
Title:
36
