EXHIBIT 10.4D
EXECUTION
THIRD AMENDMENT TO CREDIT AGREEMENT
October 23, 1998
Mitel Corporation
000 Xxxxxx Xxxxx
Xxxxxx, Xxxxxxx
Xxxxxx X0X 0X0
Attention: Xxxxxxx Xxxxx
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement dated as of
February 12, 1998 (said Credit Agreement, as amended to the date hereof, being
the "Credit Agreement", the terms defined therein being used herein as therein
defined) 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 Sachs Credit Partners L.P. as arranger, advisor and
syndication agent and Canadian Imperial Bank of Commerce, as Administrative
Agent.
At the request of Company, the undersigned Lenders hereby
agree that subsection 7.4 of the Credit Agreement is hereby amended by (a)
amending and restating subsection (vi) thereof in its entirety to read "(vi)
Company and its Subsidiaries may become and remain liable with respect to
Contingent Obligations under guarantees in the ordinary course of business of
the obligations of suppliers, customers, franchisees and licensees of Company
and its Subsidiaries in an aggregate amount not to exceed at any time
$10,000,000;" and (b) amending and restating subsection (xii) thereof in its
entirety to read "(xii) Company may become and remain liable with respect to
Contingent Obligations in respect of any obligation of any Subsidiary of Company
permitted under this Agreement; provided that the principal amount of any such
Contingent Obligation shall not exceed the principal amount of the corresponding
obligation to which it relates; provided further that, any such Contingent
Obligation shall be subordinate to the Obligations to the same extent, and on
the same terms, if any, as the corresponding obligation is so subordinated;
and."
On and after the Third Amendment Effective Date (as defined
below), 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 Credit Agreement as amended by
this Amendment (the Credit Agreement, as so amended, being the "Amended
Agreement"). 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. 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 other Loan Document.
In order to induce Lenders to enter into this Amendment,
Company, by its execution of a counterpart of this Amendment, represents and
warrants that (a) Company has all requisite corporate power and authority to
enter into this Amendment and to carry out the transactions contemplated by, and
perform its obligations under, the Amended Agreement, (b) the execution and
delivery of this Amendment and the performance of the Amended Agreement have
been duly authorized by all necessary corporate action on the part of Company,
(c) 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), (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, or (vi) 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, (d) 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, (e) 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 Third 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, (f) 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 and (g) neither
the Certificate of Incorporation nor the Bylaws of Company has been amended,
supplemented or otherwise modified since the Closing Date.
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. This Amendment shall
become effective (the date of such effectiveness being the "Third Amendment
Effective Date") upon the execution of a counterpart hereof by Company, each of
the Subsidiary Guarantors listed below and
2
Requisite Lenders and receipt by Company and Administrative Agent of written
notification of such execution and authorization of delivery thereof.
[Remainder of page intentionally left blank]
3
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.
AGENT AND LENDERS:
XXXXXXX XXXXX CANADA CREDIT PARTNERS CO.,
as a Lender
By:-----------------------------------------
Authorized Signatory
CANADIAN IMPERIAL BANK OF COMMERCE,
as a Lender and as Administrative Agent
By:-----------------------------------------
Executive Director
COMPANY:
MITEL CORPORATION
By:-----------------------------------------
Name:
Title:
4
SUBSIDIARY GUARANTORS
Each undersigned Subsidiary Guarantor hereby acknowledges that
(a) 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 and (b)(i) notwithstanding the conditions to
effectiveness set forth in this Amendment, such Subsidiary Guarantor 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 Subsidiary
Guarantor to any future amendments to the Credit Agreement.
MITEL TELECOM LIMITED
By:-----------------------------------------
Name:
Title:
MITEL SEMICONDUCTOR LIMITED
By:-----------------------------------------
Name:
Title:
MITEL, INC.
By:-----------------------------------------
Name:
Title:
MITEL TELECOMMUNICATIONS SYSTEMS, INC.
By:-----------------------------------------
Name:
Title:
MITEL SEMICONDUCTOR AMERICAS, INC.
By:-----------------------------------------
Name:
Title:
5
MITEL SEMICONDUCTOR, INC.
By:-----------------------------------------
Name:
Title:
MITEL (BARBADOS) LTD.
By:-----------------------------------------
Name:
Title:
6
LENDERS:
[NAME OF OTHER LENDER]
By:-----------------------------------------
Name:
Title:
0
XXXXXX XX XXXXX XX XXXXXXXXX XX XXXXXX
By:-----------------------------------------
Name:
Title:
8
THE SUMITOMO BANK OF CANADA, COMMERCE
By:-----------------------------------------
Name:
Title:
9
BANK OF TOKYO-MITSUBISHI (CANADA)
By:-----------------------------------------
Name:
Title:
00
XXXX XX XXXXXXX XXXXXX
By:-----------------------------------------
Name:
Title:
00
XXX XXXX XX XXXX XXXXXX
By:-----------------------------------------
Name:
Title:
00
XXXXX XXXXXXX XXX XXXX, XXXXXX
By:-----------------------------------------
Name:
Title:
13
FUJI BANK CANADA
By:-----------------------------------------
Name:
Title:
14
SOCIETE GENERALE CANADA
By:-----------------------------------------
Name:
Title:
00
XXXXXXXX XXXX XX XXXXXX
By:-----------------------------------------
Name:
Title:
00
XXXXXX XXXXXXXXX XX XXXXX (XXXXXX)
By:-----------------------------------------
Name:
Title:
17
DRESDNER BANK CANADA,
By:-----------------------------------------
Name:
Title:
18
CREDIT LYONNAIS CANADA,
By:-----------------------------------------
Name:
Title:
19
CYPRESS TREE INVESTMENT MANAGEMENT
COMPANY, INC.,
As: Attorney-in-Fact and on behalf of First
Allmerica Financial Life Insurance Company
as Portfolio Manager,
By:-----------------------------------------
Name:
Title:
20
FC CBO LIMITED
By:-----------------------------------------
Name:
Title:
21
ALLIANCE CAPITAL MANAGEMENT L.P.,
as Manager on behalf of ALLIANCE CAPITAL
FUNDING L.L.C.
By:-----------------------------------------
Name:
Title:
22
CREDIT AGRICOLE INDOSUEZ
By:-----------------------------------------
Name:
Title:
23
OSPREY INVESTMENTS PORTFOLIO
By: Citibank, N.A., as Manager
By:-----------------------------------------
Name:
Title:
24
GENERAL ELECTRIC CAPITAL CORPORATION
By:-----------------------------------------
Name:
Title:
25
XXX XXXXXX AMERICAN CAPITAL
PRIME RATE INCOME TRUST
By:-----------------------------------------
Name:
Title:
26
OCTAGON LOAN TRUST
By:-----------------------------------------
Name:
Title:
27
SENIOR DEBT PORTFOLIO
By: Boston Management and Research,
as Investment Advisor
By:-----------------------------------------
Name:
Title:
00
XXXXXXX XXXXXXXX (XXXXX), INC.
By:-----------------------------------------
Name:
Title:
29
XXXXXXX XXXXX SENIOR FLOATING
RATE FUND, INC.
By:-----------------------------------------
Name:
Title:
30
XXXXXXX XXXXX PRIME RATE PORTFOLIO
By:-----------------------------------------
Name:
Title:
31
PRIME RATE INCOME TRUST
By:-----------------------------------------
Name:
Title:
32
PROTECTIVE ASSET MANAGEMENT
COMPANY
By:-----------------------------------------
Name:
Title:
33
