EXHIBIT 10.4B
EXECUTION
MITEL CORPORATION
FIRST AMENDMENT AND
LIMITED WAIVER TO CREDIT AGREEMENT
This FIRST AMENDMENT AND LIMITED WAIVER TO CREDIT AGREEMENT
(this "Amendment") is dated as of March 16, 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"),
Xxxxxxx Xxxxx 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 (the
"Credit Agreement"). Capitalized terms used herein without definition shall have
the same meanings herein as set forth in the Credit Agreement.
RECITALS
WHEREAS, in connection with the Credit Agreement, Company and
Administrative Agent are parties to that certain Post-Closing Punch List
Agreement dated as of February 12, 1998 (the "Post-Closing Agreement");
WHEREAS, Company has requested an additional 30 days to (i)
complete certain items set forth in the Post-Closing Agreement relating to the
property located at Ogdensburg, New York, and (ii) deliver the title opinion of
XxXxxxxx Xxxxxxxx with respect to the Bromont Property as required by Section
6.10B of the Credit Agreement; and
WHEREAS, Company has requested that (i) Company be permitted
to borrow Swing Line Loans in both Dollars and Canadian Dollars, (ii) Mitel
Barbados be permitted to make intercompany loans to other Subsidiary Guarantors
and (iii) certain other changes 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 1.1A - Definitions.
(i) Subsection 1.1A of the Credit Agreement is hereby amended
by amending and restating the definition of "Total Utilization
of Revolving Loan Commitments" contained therein in its
entirety as follows:
"Total Utilization of Revolving Loan
Commitments" means, as at any date of determination, the sum
of (i) the aggregate principal amount of all outstanding
Revolving Loans (other than Revolving Loans made for the
purpose of repaying any Refunded Swing Line Loans or
reimbursing the applicable Issuing Lender for any amount drawn
under any Letter of Credit but not yet so applied) plus (ii)
the Equivalent U.S. $ Amount of the aggregate principal amount
of all outstanding Canadian Dollar Swing Line Loans plus (iii)
the aggregate principal amount of all outstanding U.S. Dollar
Swing Line Loans plus (iv) the Letter of Credit Usage."
(ii) Subsection 1.1A of the Credit Agreement is hereby further
amended by adding thereto in alphabetical order the following
new definitions of "Canadian Dollar Swing Line Loans" and
"U.S. Dollar Swing Line Loans" as follows:
"Canadian Dollar Swing Line Loans" means the
Swing Line Loans made by Swing Line Lender to Company in
Canadian Dollars pursuant to subsection 2.1A(iv).
"U.S. Dollar Swing Line Loans" means the Swing
Line Loans made by Swing Line Lender to Company in Dollars
pursuant to subsection 2.1A(iv).
B. Subsection 2.1(iv) - Swing Line Loans.
(i) Subsection 2.1(iv) of the Credit Agreement is hereby
amended by deleting the figure "Cdn. $ 5,000,000" appearing in
the first paragraph thereof and substituting the figure
"$5,000,000" in its place.
(ii) Subsection 2.1(iv) of the Credit Agreement is hereby
further amended by amending and restating the third and fourth
paragraphs appearing therein in their entirety as follows:
"With respect to any Swing Line Loans which have not
been voluntarily prepaid by Company pursuant to subsection
2.4B(i), Swing Line Lender may, at any time in its sole and
absolute discretion, deliver to Administrative Agent (with a
copy to Company), no later than 10:00 A.M. (Toronto time) on
the first Business Day in advance of the proposed Funding
Date, a notice (which shall be deemed to be a Notice of
Borrowing given by Company) requesting Lenders having
Revolving Loan Exposure to make Revolving Loans that are Base
Rate Loans on such Funding Date in an amount equal to the sum
of (a) the Equivalent U.S. $ Amount of the portion of such
Swing Line Loans which are Canadian Dollar Swing Line Loans
and (b) the aggregate principal amount of the portion of such
Swing Line Loans which are
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U.S. Dollar Swing Line Loans, in each case which are
outstanding on the date such notice is given and which Swing
Line Lender requests such Lenders to prepay (the "Refunded
Swing Line Loans"). Anything contained in this Agreement to
the contrary notwithstanding, (1) the proceeds of such
Revolving Loans made by such Lenders (other than Swing Line
Lender) in respect of U.S. Dollar Swing Line Loans shall be
immediately delivered by Administrative Agent to Swing Line
Lender (and not to Company) and applied to repay a
corresponding portion of the Refunded Swing Line Loans, (2)
the proceeds of such Revolving Loans made by such Lenders
(other than Swing Line Lender) in respect of Canadian Dollar
Swing Line Loans shall be immediately converted by
Administrative Agent to the Equivalent Cdn. $ Amount and
delivered by Administrative Agent to Swing Line Lender (and
not to Company) and applied to repay a corresponding portion
of the Refunded Swing Line Loans and (3) on the day such
Revolving Loans are made, Swing Line Lender's Pro Rata Share
of the Refunded Swing Line Loans shall be deemed to be paid
with the proceeds of a Revolving Loan made by Swing Line
Lender, and such portion of the Swing Line Loans deemed to be
so paid shall no longer be outstanding as Swing Line Loans and
shall no longer be due under the Swing Line Note, if any, of
Swing Line Lender but shall instead constitute part of Swing
Line Lender's outstanding Revolving Loans and shall be due
under the Revolving Note, if any, of Swing Line Lender.
Company hereby authorizes Administrative Agent and Swing Line
Lender to charge Company's accounts with Administrative Agent
and Swing Line Lender (up to the amount available in each such
account) in order to immediately pay Swing Line Lender the
amount of the Refunded Swing Line Loans to the extent the
proceeds of such Revolving Loans made by Lenders having
Revolving Loan Exposure, including the Revolving Loan deemed
to be made by Swing Line Lender, are not sufficient to repay
in full the Refunded Swing Line Loans. If any portion of any
such amount paid (or deemed to be paid) to Swing Line Lender
should be recovered by or on behalf of Company from Swing Line
Lender in bankruptcy, by assignment for the benefit of
creditors or otherwise, the loss of the amount so recovered
shall be ratably shared among all Lenders in the manner
contemplated by subsection 10.5.
If for any reason (a) Revolving Loans are not made
upon the request of Swing Line Lender as provided in the
immediately preceding paragraph in an amount sufficient to
repay any amounts owed to Swing Line Lender in respect of any
outstanding Swing Line Loans or (b) the Revolving Loan
Commitments are terminated at a time when any Swing Line Loans
are outstanding, each Lender having Revolving Loan Exposure
shall be deemed to, and hereby agrees to, have purchased a
participation in Canadian Dollars in respect of that portion
of such outstanding Swing Line Loans which are Canadian Dollar
Swing Line Loans and in Dollars in respect of that portion of
such outstanding Swing Line Loans which are U.S. Dollar Swing
Line Loans, in each case in an amount equal to its Pro Rata
Share (calculated, in the case of the foregoing clause (b),
immediately prior to such termination of the Revolving Loan
Commitments) of the unpaid amount of such Swing Line Loans
together with
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accrued interest thereon. Upon one Business Day's notice from
Swing Line Lender, each such Lender shall deliver to Swing
Line Lender (A) an amount in Canadian Dollars equal to its
respective participation in such Canadian Dollar Swing Line
Loans in same day funds at the Funding and Payment Office and
(B) an amount in Dollars equal to its respective participation
in such U.S. Dollar Swing Line Loans in same day funds at the
Funding and Payment Office. In order to further evidence such
participation (and without prejudice to the effectiveness of
the participation provisions set forth above), each Lender
having Revolving Loan Exposure agrees to enter into a separate
participation agreement at the request of Swing Line Lender in
form and substance reasonably satisfactory to Swing Line
Lender. In the event any such Lender fails to make available
to Swing Line Lender the amount of such Lender's participation
as provided in this paragraph, Swing Line Lender shall be
entitled to recover such amount on demand from such Lender
together with interest thereon at the rate customarily used by
Swing Line Lender for the correction of errors among banks for
three Business Days and thereafter at the Base Rate. In the
event Swing Line Lender receives a payment of any amount in
which other Lenders having Revolving Loan Exposure have
purchased participations as provided in this paragraph, Swing
Line Lender shall promptly distribute to each such other
Lender its Pro Rata Share of such payment."
C. Subsection 2.1B - Borrowing Mechanics. Subsection 2.1B of
the Credit Agreement is hereby amended by deleing the phrase "and (vi) in the
case of Swing Line Loans that such Loans shall bear interest by reference to the
Canadian Prime Rate." appearing in the first paragraph thereof and substituting
the following phrase in its place:
"(vi) in the case of Swing Line Loans, whether such Loans shall be
Canadian Dollar Swing Line Loans or U.S. Dollar Swing Line Loans, (vii)
in the case of Canadian Dollar Swing Line Loans, that such Loans shall
bear interest by reference to the Canadian Prime Rate and (viii) in the
case of U.S. Dollar Swing Line Loans, that such Loans shall bear
interest by reference to the Base Rate."
D. Subsection 2.1C - Disbursement of Funds. Subsection 2.1C of
the Credit Agreement is hereby amended by amending and restating the first
paragraph thereof in its entirety as follows:
" C. Disbursement of Funds. All Term Loans and Revolving Loans under
this Agreement shall be made by Lenders simultaneously and
proportionately to their respective Pro Rata Shares, it being
understood that no Lender shall be responsible for any default by any
other Lender in that other Lender's obligation to make a Loan requested
hereunder nor shall the Commitment of any Lender to make the particular
type of Loan requested be increased or decreased as a result of a
default by any other Lender in that other Lender's obligation to make a
Loan requested hereunder. Promptly after receipt by Administrative
Agent of a Notice of Borrowing pursuant to subsection 2.1B (or
telephonic notice in lieu thereof), Administrative Agent shall notify
each Lender or Swing Line Lender, as the case may be of the proposed
borrowing. Each Lender shall make the amount of its Loan available to
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Administrative Agent not later than 12:00 Noon (Toronto time) on the
applicable Funding Date in same day funds in Dollars, at the Funding
and Payment Office, and (other than with respect to any Swing Line Loan
made without notice from Company pursuant to subsection 2.1B) Swing
Line Lender shall make the amount of its Swing Line Loan available to
Administrative Agent not later than 2:00 pm (Toronto time) on the
applicable Funding Date in same day funds in Dollars or Canadian
Dollars, as applicable, at the Funding and Payment Office. Except as
provided in subsection 2.1A(iv) or subsection 3.3B with respect to
Revolving Loans used to repay Refunded Swing Line Loans or to reimburse
any Issuing Lender for the amount of a drawing under a Letter of Credit
issued by it, upon satisfaction or waiver of the conditions precedent
specified in subsections 4.1 (in the case of Loans made on the Closing
Date) and 4.2 (in the case of all Loans), Administrative Agent shall
make the proceeds of such Loans available to Company on the applicable
Funding Date by causing an amount of same day funds in Dollars (or with
respect to Swing Line Loans requested to be made in Canadian Dollars
only, in Canadian Dollars) equal to the proceeds of all such Loans
received by Administrative Agent from Lenders or Swing Line Lender, as
the case may be, to be credited to the account of Company at the
Funding and Payment Office."
E. Subsection 2.2A - Rate of Interest. Subsection 2.2A of the
Credit Agreement is hereby amended by amending and restating the second sentence
thereof in its entirety as follows:
"Subject to the provisions of subsection 2.7, (x) each Canadian Dollar
Swing Line Loan shall bear interest on the unpaid principal amount
thereof from the date made through maturity (whether by acceleration or
otherwise) at the sum of (1) the Canadian Prime Rate plus (2) the
Applicable Base Rate Margin for Tranche A Term Loans and (y) each U.S.
Dollar Swing Line Loan shall bear interest on the unpaid principal
amount thereof from the date made through maturity (whether by
acceleration or otherwise) at the sum of (1) the Base Rate plus (2) the
Applicable Base Rate Margin for Tranche A Term Loans."
F. Subsection 2.3A - Payment of Commitment Fees. Subsection
2.3A of the Credit Agreement is hereby amended by deleting the reference therein
to "March 1, June 1, September 1 and December 1" and substituting therefor a
reference to "the first Business Day following the end of each calendar
quarter".
G. Subsection 2.4B (iii)(c) - Prepayments Due to Issuance of
Debt. Subsection 2.4B(iii)(c) of the Credit Agreement is hereby amended by
changing the cross-reference contained therein from "7.1(vi)" to "7.1(vii)".
H. Subsection 2.4C(1) - Manner and Time of Payment. Subsection
2.4C(i) of the Credit Agreement is hereby amended and restated in its entirety
as follows:
"(i) Manner and Time of Payment. All payments by Company of
principal, interest, fees and other Obligations hereunder and
under the Notes shall be
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made in Dollars (or, with respect to any such payments in
respect of Canadian Dollar Swing Line Loans only, in Canadian
Dollars) in same day funds, without defense, setoff or
counterclaim, free of any restriction or condition, and
delivered to Administrative Agent not later than 12:00 Noon
(Toronto time) on the date due at the Funding and Payment
Office for the account of Lenders; funds received by
Administrative Agent after that time on such due date shall be
deemed to have been paid by Company on the next succeeding
Business Day. Company hereby authorizes Administrative Agent
to charge its accounts with Administrative Agent in order to
cause timely payment to be made to Administrative Agent of all
principal, interest, fees and expenses due hereunder (subject
to sufficient funds being available in its accounts for that
purpose). To the extent that (a) funds received by
Administrative Agent from Company (or debited from any account
with Administrative Agent) in Dollars must be converted into
Canadian Dollars for any payment hereunder in respect of any
Canadian Dollar Swing Line Loans, Administrative Agent shall
effect such conversion on the applicable payment date on the
basis of the rate at which Administrative Agent is able to
purchase Canadian Dollars with Dollars on such payment date
and (b) funds received by Administrative Agent from Company
(or debited from any account with Administrative Agent) in
Canadian Dollars must be converted into Dollars for any other
payments hereunder, Administrative Agent shall effect such
conversion on the applicable payment date on the basis of the
rate at which Administrative Agent is able to purchase Dollars
with Canadian Dollars on such payment date."
I. Subsection 3.2(i) - Payment of Letter of Credit Fees.
Subsection 3.2(i) of the Credit Agreement is hereby amended by deleting the
reference therein to "March 1, June 1, September 1 and December 1" and
substituting therefor a reference to "the first Business Day following the end
of each calendar quarter".
J. Subsection 5.20B - Mitel (Barbados). Subsection 5.20B of
the Credit Agreement is hereby amended and restated in its entirety as follows:
"B. Mitel Barbados. Mitel Barbados has no assets (including
receivables) other than the Discounted Notes and Intercompany
Notes permitted pursuant to subsection 6.10E."
K. Subsection 6.8A - U.K. Plessey Entities. Subsection 6.8A of
the Credit Agreement is hereby amended by deleting the proviso appearing at the
end of such subsection and substituting the following proviso in its place:
"provided, however, that Company shall not be required to cause MEDL to
comply with this subsection 6.8A in the event that, within 30 days of
the Closing Date, either (a) MEDL is merged with PSL or Mitel Telecom
with PSL or Mitel Telecom, as the case may be, being the surviving
company or (b) MEDL's business is wound-up, all of its assets are
distributed to Mitel Telecom and liquidation proceedings are commenced
in the appropriate jurisdiction with respect thereto which proceedings
are not subsequently abandoned for any reason."
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L. Subsection 6.10E - Discounted Notes. Subsection 6.10E of
the Credit Agreement is hereby amended and restated in its entirety as follows:
"E. Discounted Notes. In the event Mitel Barbados receives any
payments on redemption of any Discounted Note, Company shall
ensure that Mitel Barbados applies the total amount of such
payments (net of costs and applicable taxes) to either (i)
subscribe for additional Discounted Notes within 24 hours of
such repayment, (ii) make a dividend payment to Company within
two Business Days of such receipt or (iii) make an
intercompany loan to another Subsidiary Guarantor in
accordance with the provisions of subsection 7.1(iv) within
two Business days of such receipt; it being understood that
such net payments may be applied under clauses (i), (ii) and
(iii) in such proportions as Mitel Barbados may determine."
M. Subsection 7.1 - Indebtedness. Subsection 7.1 of the Credit
Agreement is hereby amended by inserting a new clause (vi) therein as follows
and renumbering existing clause (vi) as clause (vii):
"(vi) Mitel, Inc. may become and remain liable with respect to
a revolving line of credit with National Bank of Detroit in an
aggregate principal amount not to exceed $1,000,000 at any
time outstanding and the proceeds of which shall be used for
the general corporate purposes of Mitel, Inc. and its
Subsidiaries; and"
N. Subsection 7.4 - Contingent Obligations. Subsection 7.4 of
the Credit Agreement is hereby amended by (i) changing the cross reference
contained in clause (vii) thereof from "7.1(vi)" to "7.1(vii)", (ii) deleting
the word "and" appearing at the end of clause (xi) thereof, (iii) renumbering
existing clause (xii) as new clause (xiii) and (iv) inserting a new clause (xii)
therein as follows:
"(xii) Company may become and remain liable with respect to a
guaranty of the Indebtedness of Mitel, Inc. permitted under
subsection 7.1(vi); and"
O. Exhibit I - Form of Notice of Borrowing. Exhibit I to the
Credit Agreement is hereby amended and restated in its entirety as set forth in
Annex A hereto.
P. Exhibit VI-B - Form of Swing Line Note. Exhibit VI-B to the
Credit Agreement is hereby amended and restated in its entirety as set forth in
Annex B hereto.
Section 2. LIMITED WAIVERS TO THE CREDIT AGREEMENT AND POST-CLOSING AGREEMENT
A. Limited Waiver Under Subsection 6.10B. 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 6.10B(i) until April 13,
1998; provided that the waiver contained in this Section 2A shall automatically
cease to be of any force or effect on
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April 13, 1998 if Company has not complied with the provisions of subsection
6.10B (i) on or before such date;
B. Limited Waiver Under Post-Closing Agreement. 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 (i) the provisions of items 1.5A, 1.5C, 1.5E,
1.5H, 1.6C, 1.6D, and 1.6E of the Post-Closing Agreement (in each case as such
items relate to the property located at Ogdensburg, New York), and (ii) the
provisions of item 3 of the Post-Closing Agreement solely as such item relates
to good standing certificates in the states of Connecticut, Illinois and
Massachusetts (collectively, the "Waived Items"), in each case until April 13,
1998, provided that the waiver contained in this Section 2B shall automatically
cease to be of any force or effect on April 13, 1998 if Company has not complied
with the provisions of each of the Waived Items on or before such 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 Sections 6.10B of the Credit Agreement and the Waived Items of the
Post-Closing 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 6.10 of the Credit Agreement or the Waived
Items of the Post-Closing Agreement in any other instance or
(ii) any other term, provision or condition of the Credit
Agreement or Post-Closing 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, the Post-Closing 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, the Post-Closing Agreement and the other
Loan Documents shall remain in full force and effect and in all other respects
are hereby ratified and confirmed.
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 "First 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;
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B. Requisite Lenders shall each have executed a counterpart of
this Amendment; and
C. Company and Administrative Agent shall have received
written or telephonic 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
and Post-Closing Agreement, in each case 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 of 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 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
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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
First 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 First 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 Documents to the "Credit Agreement", "thereunder",
"thereof" or words or 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 Agent or
any Lender under, the Credit Agreement or any of the other Loan Documents.
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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
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 First 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".
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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 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 First 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]
12
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.
LENDERS:
XXXXXXX XXXXX CREDIT PARTNERS L.P.,
as a Lender and as Syndication Agent
Authorized Signatory
XXXXXXX SACHS CANADA CREDIT PARTNERS CO.,
as a Lender
Authorized Signatory
CANADIAN IMPERIAL BANK OF COMMERCE,
as a Lender and as Administrative Agent
Executive Director
COMPANY:
MITEL CORPORATION
Name:
Title:
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CREDIT SUPPORT PARTIES:
MITEL TELECOM 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.
Name:
Title:
14
ANNEX A TO FIRST AMENDMENT
EXHIBIT I
[FORM OF NOTICE OF BORROWING]
NOTICE OF BORROWING
Pursuant to that certain Credit Agreement dated as of February
12, 1998, as amended, supplemented or otherwise modified to the date hereof
(said Credit Agreement, as so amended, supplemented or otherwise modified, being
the "Credit Agreement", the terms defined therein and not otherwise defined
herein being used herein as therein defined), by and among Mitel Corporation, a
corporation organized under the laws of Canada ("Company"), the financial
institutions listed therein as Lenders ("Lenders"), Xxxxxxx Xxxxx Credit
Partners L.P., as advisor, arranger and syndication agent and Canadian Imperial
Bank of Commerce, as Administrative Agent ("Administrative Agent"), this
represents Company's request to borrow as follows:
1. Date of borrowing: ___________________, _________
2. Amount of borrowing: $___________________
3. Lender(s):
[ ]a. Lenders, in accordance with
their applicable Pro Rata
Shares
[ ]b. Swing Line Lender
4. Type of Loans: [ ]a. Tranche A Term Loans
[ ]b. AXELs Series B
[ ]c. Revolving Loans
[ ]d. Canadian Dollar Swing Line
Loan
[ ]e. U.S. Dollar Swing Line Loan
5. Interest rate option: [ ]a. Base Rate Loan(s)
[ ]b. Eurodollar Rate Loans with
an initial Interest Period
of ____________ month(s)
[ ]c. Canadian Prime Rate
(Canadian Dollar Swing Line
Loans only)
The proceeds of such Loans are to be deposited in Company's account at
Administrative Agent.
The undersigned officer, to the best of his or her knowledge,
and Company certify that:
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(i) The representations and warranties contained in the Credit
Agreement and the other Loan Documents are true, correct and
complete in all material respects on and as of the date hereof
to the same extent as though made on and as of the date
hereof, except to the extent such representations and
warranties specifically relate to an earlier date, in which
case such representations and warranties were true, correct
and complete in all material respects on and as of such
earlier date;
(ii) No event has occurred and is continuing or would result
from the consummation of the borrowing contemplated hereby
that would constitute an Event of Default or a Potential Event
of Default; and
(iii) Company has performed in all material respects all
agreements and satisfied all conditions which the Credit
Agreement provides shall be performed or satisfied by it on or
before the date hereof.
DATED: ____________________ MITEL CORPORATION
By: __________________________
Title: ________________________
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ANNEX A TO FIRST AMENDMENT
EXHIBIT VI-B
[FORM OF SWING LINE NOTE]
MITEL CORPORATION
PROMISSORY NOTE DUE FEBRUARY 12, 2003
$5,000,000 New York, New York
February 12, 1998
FOR VALUE RECEIVED, MITEL CORPORATION, a corporation organized
under the laws of Canada ("Company"), promises to pay to Canadian Imperial Bank
of Commerce ("Payee"), on or before February 12, 2003, the lesser of (x) FIVE
MILLION DOLLARS ($5,000,000.00) and (y) the unpaid principal amount of all
advances made by Payee to Company as Swing Line Loans under the Credit Agreement
referred to below; provided that Swing Line Loans denominated in Canadian
Dollars shall be repaid in the currency required by and otherwise in accordance
with and subject to the terms of the Credit Agreement.
Company also promises to pay interest on the unpaid principal
amount hereof, from the date hereof until paid in full, at the rates, in the
currency and at the times which shall be determined in accordance with the
provisions of that certain Credit Agreement dated as of February 12, 1998 by and
among Company, the financial institutions listed therein as Lenders, Xxxxxxx
Sachs Credit Partners L.P., as advisor, arranger and syndication agent and
Canadian Imperial Bank of Commerce, as Administrative Agent (said Credit
Agreement, as it may be amended, supplemented or otherwise modified from time to
time, being the "Credit Agreement", the terms defined therein and not otherwise
defined herein being used herein as therein defined).
This Note is Company's "Swing Line Note" and is issued
pursuant to and entitled to the benefits of the Credit Agreement, to which
reference is hereby made for a more complete statement of the terms and
conditions under which the Swing Line Loans evidenced hereby were made and are
to be repaid.
All payments of principal and interest in respect of this Note
shall be made in same day funds at the Funding and Payment Office or at such
other place as shall be designated in writing for such purpose in accordance
with the terms of the Credit Agreement and shall be made in lawful money in the
currency designated in accordance with the terms of the Credit Agreement.
Whenever any payment on this Note shall be stated to be due on
a day which is not a Business Day, such payment shall be made on the next
succeeding Business Day and such extension of time shall be included in the
computation of the payment of interest on this Note.
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This Note is subject to mandatory prepayment as provided in
subsection 2.4B(iii) of the Credit Agreement and to prepayment at the option of
Company as provided in subsection 2.4B(i) of the Credit Agreement.
THIS NOTE AND THE RIGHTS AND OBLIGATIONS OF COMPANY AND PAYEE
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.
Upon the occurrence of an Event of Default, the unpaid balance
of the principal amount of this Note, together with all accrued and unpaid
interest thereon, may become, or may be declared to be, due and payable in the
manner, upon the conditions and with the effect provided in the Credit
Agreement.
The terms of this Note are subject to amendment only in the
manner provided in the Credit Agreement.
This Note is subject to restrictions on transfer or assignment
as provided in subsections 10.1 and 10.16 of the Credit Agreement.
No reference herein to the Credit Agreement and no provision
of this Note or the Credit Agreement shall alter or impair the obligations of
Company, which are absolute and unconditional, to pay the principal of and
interest on this Note at the place, at the respective times, and in the currency
herein prescribed.
Company promises to pay all costs and expenses, including
reasonable attorneys' fees, all as provided in subsection 10.2 of the Credit
Agreement, incurred in the collection and enforcement of this Note. Company and
any endorsers of this Note hereby consent to renewals and extensions of time at
or after the maturity hereof, without notice, and hereby waive diligence,
presentment, protest, demand and notice of every kind and, to the full extent
permitted by law, the right to plead any statute of limitations as a defense to
any demand hereunder.
IN WITNESS WHEREOF, Company has caused this Note to be duly
executed and delivered by its officer thereunto duly authorized as of the date
and at the place first written above.
MITEL CORPORATION
By: __________________________
Title: ________________________
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TRANSACTIONS
ON
SWING LINE NOTE
Amount and Outstanding
Currency of Amount of Principal
Loan Made Principal Paid Balance Notation
Date This Date This Date This Date Made By
---- --------- --------- --------- -------
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