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FOURTH AMENDMENT TO CREDIT AGREEMENT
Dated as of August 15, 2001
Between
LILY CUPS INC.
as Borrower
and
GENERAL ELECTRIC CAPITAL CANADA INC.
as Lender
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EXECUTION COPY
TABLE OF CONTENTS
RECITALS.......................................................................1
Section 1 - INTERPRETATION.....................................................1
1.1 Definitions....................................................1
1.2 Incorporation into Existing Credit Agreement...................1
Section 2 - REPRESENTATIONS AND WARRANTIES.....................................1
2.1 Representations and Warranties.................................1
Section 3 - AMENDMENT TO SECTION 6 OF THE EXISTING CREDIT AGREEMENT -
NEGATIVE COVENANTS.................................................2
3.1 Amendment to Section 6.16 - Leases.............................2
Section 4 - CONDITIONS PRECEDENT...............................................2
4.1 Effective Fourth Amendment.....................................2
Section 5 - MISCELLANEOUS......................................................3
5.1 Amendment of Existing Credit Agreement; Reaffirmation of
Loan Documents.................................................3
5.2 Reservation of Rights and Remedies.............................3
5.3 Severability...................................................3
5.4 Parties........................................................3
5.5 A Loan Document................................................3
5.6 Credit Agreement...............................................3
5.7 Section Titles.................................................3
5.8 Governing Law..................................................4
5.9 Time of the Essence............................................4
5.10 Counterparts...................................................4
(i)
FOURTH AMENDMENT TO CREDIT AGREEMENT
FOURTH AMENDMENT TO CREDIT AGREEMENT, dated as of August 15, 2001 (this
"Fourth Amendment"), between LILY CUPS INC., an Ontario corporation
("Borrower"), and GENERAL ELECTRIC CAPITAL CANADA INC., a Canada corporation, as
Lender.
RECITALS
A. Borrower and Lender are parties to a Credit Agreement dated as of
June 15, 1998, as amended by a First Amendment to Credit Agreement dated as of
June 28, 1999, a Second Amendment to Credit Agreement dated as of November 15,
1999 and a Third Amendment to Credit Agreement dated as of June 19, 2001
(collectively, the "Existing Credit Agreement").
B. Borrower has requested that Lender increase the aggregate of all
operating lease payments payable in any year by Borrower from $500,000 to
$1,000,000.
C. Lender has agreed to Borrower's request upon the terms and subject to
the conditions set forth in this Fourth Amendment.
FOR VALUE RECEIVED, the parties agree as follows:
Section 1 - INTERPRETATION
1.1 Definitions
In addition to the defined terms appearing above, capitalized terms
used in this Fourth Amendment have (unless otherwise provided elsewhere in this
Fourth Amendment) the meanings given to them in the Existing Credit Agreement
and the term "Effective Date" has the meaning given to that term in Section
Effective Fourth Amendment of this Fourth Amendment.
1.2 Incorporation into Existing Credit Agreement
The Existing Credit Agreement and this Fourth Amendment shall be read
together and shall have the effect as if all the provisions of such agreements
were contained in one instrument.
Section 2 - REPRESENTATIONS AND WARRANTIES
2.1 Representations and Warranties
Borrower makes the following representations and warranties to Lender,
each and all of which shall survive the execution and delivery of this Fourth
Amendment:
(1) each representation and warranty of Borrower contained in each Loan Document
is true and correct in all material respects on and as of the Effective Date
except to the extent that any such representation or warranty relates solely to
an earlier date and except for changes therein expressly permitted or
contemplated by any Loan Document;
(2) the execution and delivery by Borrower of this Fourth Amendment, and the
performance by Borrower of its obligations under this Fourth Amendment and the
Existing Credit Agreement, as amended by this Fourth Amendment, are (a) within
Borrower's corporate power; (b) have been duly authorized by all necessary
corporate and shareholder action; (c) are not in contravention of any provision
of Borrower's constating documents or by-laws; (d) do not violate any law or
regulation, or any order or decree of any court or Governmental Authority; (e)
do not conflict with or result in the breach or termination of, constitute a
default under or accelerate or permit the acceleration of any performance
required by, any indenture, mortgage, deed of trust, lease, agreement or other
instrument to which Borrower is a party or by which Borrower or any of its
property is bound; (f) do not result in the creation or imposition of any lien
upon any of the property of Borrower; and (g) do not require the consent or
approval of any Governmental Authority or any other Person;
(3) this Fourth Amendment has been duly executed and delivered by Borrower and
each of this Fourth Amendment and the Existing Credit Agreement, as amended by
this Fourth Amendment, constitutes a legal, valid and binding obligation of
Borrower, enforceable against it in accordance with its terms; and
(4) after giving effect to this Fourth Amendment, no Default or Event of
Default has occurred and is continuing.
Section 3 - AMENDMENT TO SECTION 6 OF THE EXISTING CREDIT AGREEMENT - NEGATIVE
COVENANTS
3.1 Amendment to Section 6.16 - Leases
On and after the Effective Date, Section 6.16 of the Existing Credit
Agreement is amended by substituting "$1,000,000" for "$500,000".
Section 4 - conditions precedent
4.1 Effective Fourth Amendment
This Fourth Amendment shall become effective on the date on which this
Fourth Amendment, or counterparts hereof, shall have been duly executed by, and
delivered to, Borrower and Lender (the "Effective Date").
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Section 5 - MISCELLANEOUS
5.1 Amendment of Existing Credit Agreement; Reaffirmation of Loan Documents
The Existing Credit Agreement has not been amended except pursuant to
this Fourth Amendment, and the Existing Credit Agreement, as amended by this
Fourth Amendment, is in full force and effect. Borrower hereby reaffirms each
Loan Document.
5.2 Reservation of Rights and Remedies
Lender reserves all of its rights to proceed to enforce its rights and
remedies at any time and from time to time in connection with any and all
Defaults and Events of Default now existing or hereafter arising.
5.3 Severability
Wherever possible, each provision of this Fourth Amendment shall be
interpreted in such a manner as to be effective and valid under applicable law,
but if any provision of this Fourth Amendment shall be prohibited by or invalid
under applicable law, such provision shall be ineffective to the extent of such
prohibition or invalidity, without invalidating the remainder of such provision
or the remaining provisions of this Fourth Amendment.
5.4 Parties
This Fourth Amendment shall be binding upon, and enure to the benefit
of, Borrower and Lender and their respective successors and permitted assigns.
5.5 A Loan Document
For greater certainty, Borrower acknowledges that this Fourth Amendment
constitutes a Loan Document.
5.6 Credit Agreement
Each reference to "Credit Agreement" or "Agreement" contained in each
Loan Document shall be a reference to the Existing Credit Agreement, as amended
by this Fourth Amendment, without further amendment to any Loan Document.
5.7 Section Titles
The section titles and table of contents contained in this Fourth
Amendment are and shall be without substantive meaning or content of any kind
whatsoever and are not a part of this Fourth Amendment.
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5.8 Governing Law
In all respects, including all matters of construction, validity and
performance, this Fourth Amendment shall be governed by, and construed and
enforced in accordance with, the laws of the Province of Ontario applicable to
contracts made and performed in that province and the laws of Canada applicable
therein. Borrower hereby consents and agrees that the courts located in the
Province of Ontario shall have non-exclusive jurisdiction to hear and determine
any claims or disputes between Borrower and Lender pertaining to this Fourth
Amendment or to any matter arising out of or relating to this Fourth Amendment;
provided, that nothing in this Fourth Amendment shall be deemed or operate to
preclude Lender from bringing suit or taking other legal action in any other
jurisdiction to realize on the Collateral or any other security for the
Obligations or to enforce a judgment or other court order. Borrower expressly
submits and consents in advance to such jurisdiction in any action or suit
commenced in any such court and each party hereby waives any objection which
that party may have based upon lack of personal jurisdiction, improper venue or
forum non conveniens and hereby consents to the granting of such legal or
equitable relief as is deemed appropriate by such court. Borrower hereby waives
personal service or process issued in any such action or suit and agrees that
service of process may be delivered in the manner set out in Section 11.10 of
the Existing Credit Agreement and that service so delivered shall be deemed
completed upon the date of receipt thereof or, if such date is not a Business
Day, on the next following Business Day.
5.9 Time of the Essence
Time shall be of the essence of every provision of this Fourth
Amendment.
5.10 Counterparts
This Fourth Amendment may be executed in any number of separate
counterparts, which shall collectively constitute one agreement.
[INTENTIONALLY LEFT BLANK]
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The parties have executed this Agreement.
LILY CUPS INC. , as Borrower
By:
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Name: Xxxxx Xxxxx
Title: Vice-President, Finance
GENERAL ELECTRIC CAPITAL CANADA INC. ,
as Lender
By:
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Name:
Duly Authorized Signatory
