EXHIBIT 10.4E
EXECUTION
MITEL CORPORATION
FOURTH AMENDMENT TO CREDIT AGREEMENT
This FOURTH AMENDMENT TO CREDIT AGREEMENT (this "Amendment")
is dated as of January 14, 1999, 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 9
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 through the date hereof, the "Credit Agreement"). Capitalized terms used
herein without definition shall have the same meanings herein as set forth in
the Credit Agreement.
RECITALS
WHEREAS, the Company has requested that Requisite Lenders
amend the financial covenant contained in Subsection 7.6D of the Credit
Agreement to provide for the addition of 75% of Consolidated Net Income to a
threshold level of Consolidated Net Worth to be set as of the end of fourth
Fiscal Quarter of the 1998 Fiscal Year and to make certain other changes, in
each case 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. AMENDMENT TO CREDIT AGREEMENT
A. Subject to the terms and conditions hereof and in reliance
on the representations and warranties contained herein, subsection 7.6D of the
Credit Agreement is hereby amended and restated in its entirety as follows:
"D. Minimum Consolidated Net Worth. Company shall not permit
Consolidated Net Worth at any time during any Fiscal Quarter commencing
with the first Fiscal Quarter of the 1999 Fiscal Year to be less than
the sum of (i) Consolidated Net Worth as of the last day of the fourth
Fiscal Quarter of the 1998 Fiscal Year, plus (ii) an amount equal to
75% of Consolidated Net Income, as such Consolidated Net Income is
determined on a cumulative basis from the last day of such fourth
Fiscal
Quarter through the relevant date of determination (without any deduction for
losses)."
B. Subject to the terms and conditions hereof and in reliance
on the representations and warranties contained herein, Schedule 5.1 to the
Credit Agreement is hereby amended and restated in its entirety as set forth on
Annex A hereto.
Section 2. 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 "Fourth 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 3. 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 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 Fourth 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 4. REFERENCE TO AND EFFECT ON THE CREDIT AGREEMENT
AND THE OTHER LOAN DOCUMENTS.
A. On and after the Fourth 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 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 5. 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 6. 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 7. 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 8. 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 9. 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 Fourth 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
Fourth 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.
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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
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Name:
Title:
LENDERS:
XXXXXXX SACHS CREDIT PARTNERS L.P.,
as a Lender and as Syndication Agent
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Authorized Signatory
XXXXXXX XXXXX CANADA CREDIT PARTNERS CO.,
as a Lender
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Authorized Signatory
CANADIAN IMPERIAL BANK OF COMMERCE,
as a Lender and as Administrative Agent
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Executive Director
CREDIT SUPPORT PARTIES:
MITEL TELECOM LIMITED
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Name:
Title:
MITEL SEMICONDUCTOR LIMITED
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Name:
Title:
MITEL, INC.
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Name:
Title:
MITEL TELECOMMUNICATIONS SYSTEMS, INC.
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Name:
Title:
MITEL (BARBADOS) LTD.
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Name:
Title:
LENDERS:.
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[Insert name of Lender]
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Name:
Title:
ANNEX A
[TO FOLLOW]