CANWEST MEDIA INC. a corporation amalgamated under the laws of Manitoba as Borrower - and - THE GUARANTORS FROM TIME TO TIME PARTY TO THE CREDIT AGREEMENT as Guarantors - and - THE LENDERS FROM TIME TO TIME PARTY TO THE CREDIT AGREEMENT as Lenders -...
EXECUTION
VERSION
THIS FOURTH AMENDMENT
AGREEMENT is effective from and dated as of the 4th day of
November, 2008.
B
E T W E E N:
a
corporation amalgamated under the laws of Manitoba
as
Borrower
- and
-
THE
GUARANTORS FROM TIME TO TIME PARTY
TO
THE CREDIT AGREEMENT
as
Guarantors
- and
-
THE
LENDERS FROM TIME TO TIME PARTY
TO
THE CREDIT AGREEMENT
as
Lenders
- and
-
THE
BANK OF NOVA SCOTIA
a bank to
which the Bank Act
(Canada) applies,
in its
capacity as administrative agent hereunder
as
Administrative Agent
RECITALS:
|
A.
|
The
Borrower, certain of the Guarantors, the Agent and the Lenders are parties
to a Credit Agreement dated as of October 13, 2005, as amended by a
First Amendment Agreement (the "First Amendment
Agreement") dated as of February 15, 2006, a Second Amendment
Agreement (the "Second
Amendment Agreement") dated as of April 30, 2007 and a
Third Amendment Agreement (the "Third Amendment
Agreement") dated as of July 31, 2007 (as so amended, the "Existing Credit
Agreement").
|
|
B.
|
The
Borrower and the Lenders have agreed to certain amendments to the terms
and conditions in the Existing Credit Agreement and the parties are
entering into this Fourth Amendment Agreement to give effect thereto and
to the other matters set forth
herein.
|
NOW THEREFORE in consideration
of the premises and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, and intending to be legally bound
hereby, the parties agree as follows:
Section
1 - Amendment to Definitions
(a) Section
1.1.21 of the Existing Credit Agreement is deleted and replaced with the
following provision:
|
|
1.1.21
|
"Borrower" means Canwest
Media Inc. (formerly known as CanWest MediaWorks Inc.), a corporation
amalgamated under The
Corporations Act (Manitoba), its successors and permitted
assigns.
|
(b) Section
1.1.29 of the Existing Credit Agreement is deleted and replaced with the
following provision:
|
|
1.1.29
|
"CanWest GP" means
Canwest (Canada) Inc. (formerly known as CanWest MediaWorks (Canada)
Inc.)
|
(c) Section
1.1.30 of the Existing Credit Agreement is deleted and replaced with the
following provision:
|
|
1.1.30
|
"CanWest LP" means
Canwest Limited Partnership (formerly known as CanWest MediaWorks Limited
Partnership).
|
(d) Section
1.1.31 of the Existing Credit Agreement is deleted and replaced with the
following provision:
|
|
1.1.31
|
"CanWest Fund Entities"
means, collectively, CanWest LP, CanWest GP, Canwest Publishing Inc.
(formerly known as CanWest MediaWorks Publications Inc.), Canwest Books
Inc. (formerly known as CanWest Books Inc.), and any other present or
future Subsidiary of any of the foregoing, and their successors and
assigns, and "CanWest Fund Entity" means any one of
them.
|
(e) Section
1.1.82 of the Existing Credit Agreement is deleted and replaced with the
following provision:
|
|
1.1.82
|
"Global Group Entities"
means the Obligors and the Excluded Global Group Entities, and "Global Group Entity"
means any one of them but does not include any CanWest Fund
Entity.
|
(f) Section
1.1.111 of the Existing Credit Agreement is deleted and replaced with the
following provision:
|
|
1.1.111
|
"Market Value of Public
Equity" means the aggregate of the Current Market Price of publicly
traded voting Capital Stock of Ten Network Holdings Limited owned by a
Global Group Entity and pledged in favour of the Collateral Agent pursuant
to the Security in compliance with all applicable foreign ownership
restrictions.
|
(g)
Section
1.1.117 of the Existing Credit Agreement is deleted and replaced with the
following provision:
|
|
1.1.117
|
"Net Cash Proceeds"
means:
|
|
|
(a)
|
in
connection with any sale, transfer or other disposition of Property to a
Person that is not an Obligor, the proceeds thereof in the form of cash
and readily marketable cash equivalents of such sale, transfer or
disposition net of (i) reasonable legal fees, accountant's fees and
investment banking fees, (ii) amounts required to be applied to the
repayment of Debt secured by a Permitted Encumbrance ranking in priority
to the Security on the Property which is the subject of the sale, transfer
or other disposition, (iii) reasonable arms length real estate
agents' fees, brokers' fees, and similar fees and customary expenses
actually incurred in connection with the sale, transfer or other
disposition, (iv) the amount of any reasonable reserve required to be
established in accordance with GAAP against any liabilities (other than
Taxes deducted pursuant to clause (v) below) (x) associated with the
Property which is the subject of the sale, transfer or other disposition,
and (y) retained by the Borrower, provided that the amount of any
subsequent reduction of such reserve (other than in connection with a
payment in respect of any liability) shall be deemed to be Net Cash
Proceeds of the sale, transfer or other disposition, received on the date
of such reduction, and (v) Taxes paid or reasonably estimated to be
payable as a result thereof (For the avoidance of doubt, in the case of
asset swaps with Arm's Length Persons, the Net Cash Proceeds shall include
only the portion of proceeds received in the form of cash and readily
marketable cash equivalents); and
|
|
|
(b)
|
in
connection with any issuance of Debt to a Person that is not an Obligor,
the cash proceeds received from such issuance, net of reasonable legal
fees, investment banking fees, accountants' fees, underwriting discounts
and commissions and other customary fees and expenses actually incurred in
connection therewith.
|
(h) Section
1.1.136 of the Existing Credit Agreement is deleted and replaced with the
following provision:
|
|
1.1.136
|
"Permitted Distribution"
means a Distribution made by a Global Group Entity which is received by
another Global Group Entity, including a Distribution made by the Borrower
which is received by CanWest, provided however that a Distribution shall
be a
|
3
Permitted
Distribution only if no Default shall have occurred and be continuing or would
occur as a result of the Distribution.
(i) The
preamble of Section 1.1.138 (definition of "Permitted Investment") of the
Existing Credit Agreement is deleted and replaced with the following
provision:
|
|
1.1.138
|
"Permitted Investment"
means (x) an Investment made by an Obligor in another Obligor,
(y) an Investment made by an Obligor in any non wholly-owned
Subsidiary to satisfy obligations under existing contracts or to comply
with regulatory requirements under Applicable Law, up to a maximum amount
not to exceed Cdn. $3,000,000 in the aggregate over the term of the
Credit, and (z) an Investment in the Communications Business between
October 13, 2005 and October 31, 2008, in each case, at a
time when no Default has occurred and is continuing or would result from
any such Investment and, in the case of an Investment referred to in
clause (z) of this Section 1.1.138:
|
(j) Section
1.1.140(f) (definition of "Permitted Pari Passu Debt") of the Existing Credit
Agreement is deleted and replaced with the following provision:
|
|
1.1.140(f)
|
the
proceeds of such Debt are used to repay the
Credit.
|
(k) Section
1.1.141(f) (definition of "Permitted Subordinated Debt") of the Existing Credit
Agreement is deleted and replaced with the following provision:
|
|
1.1.141(f)
|
the
Net Cash Proceeds of such Debt are used to repay the Credit or refinance
the Senior Subordinated Notes.
|
Section
2 – Amendment
to the Credit
(a) Section
2.1(1) of the Existing Credit Agreement is deleted and replaced with the
following provision:
|
|
2.1(1)
|
Upon
and subject to the terms and conditions of this Agreement, the Lenders
severally agree to provide to the Borrower a credit facility (the "Credit") for the use of
the Borrower in the amount of up to Cdn. $300,000,000 or the Equivalent
Amount in US Dollars (provided that each Lender's obligation hereunder
shall be limited to its respective Applicable Percentage of the
Credit).
|
(b) Section
2.3 of the Existing Credit Agreement is deleted and replaced with the following
provision:
|
|
2.3
|
Use
of the Credit
|
The
Credit shall be used (i) for general corporate purposes, including Permitted
Investments of the Borrower made between October 13, 2005 and October 31, 2008
(but, other than as set out in clause (iii), specifically
4
excluding
any repayment or refinancing of any Permitted Pari Passu Debt, Permitted
Subordinated Debt or Senior Subordinated Notes), (ii) to partially fund the
repayment in full and cancellation of the Existing Credit Facilities, bonds and
hedging arrangements of the Borrower and costs associated with the
Implementation Transactions, (iii) to partially fund the repayment of the 10
5/8% Senior Subordinated Debentures due 2011 and the 7 5/8% Senior Notes due
2013 up to an aggregate maximum of $25,000,000.
(c) Section
2.5(1) of the Existing Credit Agreement is deleted and replaced with the
following provision:
|
|
2.5(1)
|
The
Credit (and Advances outstanding thereunder) shall be permanently
reduced:
|
|
|
(a)
|
by
100% of the amount of all Net Cash Proceeds of Permitted Pari Passu Debt
and Permitted Subordinated Debt issued or incurred by the Borrower other
than any Permitted Subordinated Debt which is used to refinance the Senior
Subordinated Notes;
|
|
|
(b)
|
by:
|
|
|
(i)
|
100%
of the cash portion of any special distribution made by Ten Network
Holdings Limited ("Ten
Special Distribution") to its shareholders received by any Global
Group Entity (less the amount of Taxes paid or reasonably estimated to be
payable as a result thereof); and
|
|
|
(ii)
|
100%
of the amount of all Net Cash Proceeds of any sale, transfer or other
disposition by any one or more of the Global Group Entities of Equity
in:
|
|
|
(A)
|
Ten
Network Holdings Limited, which is equal to or less than 15% of the
aggregate Equity owned by all Global Group Entities in Ten Network
Holdings Limited, or
|
|
|
(B)
|
CanWest
LP, which is equal to or less than 15% of the aggregate Equity owned
by all Global Group Entities in CanWest
LP,
|
provided
however, that (Y) the amount of the Credit shall not be reduced below
Cdn. $175,000,000, and (Z) the Total Leverage Ratio required to be
maintained by the Borrower pursuant to Section 7.1(1) at each relevant date
thereafter shall be immediately reduced to a level that is not greater than 0.50
(rounded up, if necessary, to the nearest 0.25) greater than the Pro Forma Projections (as
defined below);
5
|
|
(c)
|
by
100% of the amount of all Net Cash Proceeds of any sale, transfer or other
disposition by any one or more of the Global Group Entities (whether
in a single transaction or a series of transactions) of Equity
in:
|
|
|
(i)
|
Ten
Network Holdings Limited, which exceeds 15% of the aggregate Equity owned
by all Global Group Entities in Ten Network Holdings Limited,
or
|
|
|
(ii)
|
CanWest
LP, which exceeds 15% of the aggregate Equity owned by all Global Group
Entities in CanWest LP;
|
provided
however, that (Y) the amount of the Credit shall be reduced to a level
to be determined by all of the Lenders at or immediately prior to such time, and
(Z) the Total Leverage Ratio and the other financial covenants required to
be maintained by the Borrower for all periods thereafter in Section 7.1
shall be revised as determined by the Required Lenders at or immediately prior
to such time; and
|
|
(d)
|
by
100% of the amount of all Net Cash Proceeds of any sale, transfer or other
disposition by any Global Group Entity of any of its Property (including
Capital Stock of other Persons), other than those referred to in
Sections 2.5(1)(b) and 2.5(1)(c), provided however, that the amount
of the Credit shall not be reduced below Cdn.
$175,000,000.
|
Such
reductions to the Credit shall constitute permanent reductions of the amount
available under the Credit. Each of the foregoing reductions of the
Credit (and repayment of Advances outstanding hereunder) shall be made within
five Business Days of receipt of such Net Cash Proceeds or Ten Special
Distribution. For purposes of this Section 2.5(1), "Pro
Forma
Projections" means the pro forma projections
provided by the Borrower to the Agent and the Lenders in contemplation of such
sale, transfer or other disposition and which are accepted by the Required
Lenders, acting reasonably.
(d) Section
2.6(1) of the Existing Credit Agreement is deleted and replaced with the
following provision:
|
|
2.6(1)
|
Interest
rates, Banker's Acceptance Fees, L/C commissions and Standby Fees will
vary and be calculated based on the Total Leverage Ratio as
follows:
|
6
|
Total
Leverage Ratio
|
Applicable
Margin for Prime Rate Advances and Base Rate Advances
(% per
annum)
|
BA
Fees, L/C Commissions and Applicable Margin for LIBOR
Advances
(% per
annum)
|
Standby
Fee
(%
per annum)
|
|
Greater
than 6.50 to 1
|
5.75%
|
6.75%
|
2.00%
|
|
Less
than or equal to 6.50 to 1 but greater than 6.00 to 1
|
5.25%
|
6.25%
|
1.90%
|
|
Less
than or equal to 6.00 to 1 but greater than 5.50 to 1
|
4.75%
|
5.75%
|
1.75%
|
|
Less
than or equal to 5.50 to 1 but greater than 5.00 to 1
|
4.25%
|
5.25%
|
1.60%
|
|
Less
than or equal to 5.00 to 1 but greater than 4.50 to 1
|
4.00%
|
5.00%
|
1.50%
|
|
Less
than or equal to 4.50 to 1
|
3.75%
|
4.75%
|
1.45%
|
Section
3 – Amendment
to Security
(a) Section
3.1(1)(h) of the Existing Credit Agreement is deleted and replaced with the
following provision:
|
|
3.1(1)(h)
|
subject
to Section 3.1(3), a first-ranking securities pledge agreement made by
each Obligor in favour of the Collateral Agent of all Equity and Debt of
Persons other than a Global Group Entity that is owned by any Obligor from
time to time and acquired pursuant to a Permitted Investment, including
without limitation, a pledge by the Borrower of the Capital Stock of
CanWest GP, CanWest LP and Ten Network Holdings
Limited;
|
(b) Section
3.1(2) of the Existing Credit Agreement is deleted and replaced with the
following provision:
|
|
3.1(2)
|
The
net income of any Person shall only be included in EBITDA if such Person
is, or shall have become, a party to this Agreement by delivery of an
agreement in the form of Schedule B and has delivered a guarantee and
the Security contemplated hereby and become a party to the Collateral
Agency Agreement, as guarantor. In addition, the Borrower shall
give prompt written notice to the Agent of, and shall cause each Person
that is or becomes a wholly-owned Subsidiary of any Global Group Entity
(but excluding, for greater certainty, any CanWest Fund Entity) as a
result of a Permitted Investment (other than any Inactive Subsidiary or
Excluded Global Group Entity) to become a party to this Agreement by
delivery of an agreement in the form of
Schedule B
|
|
|
and
deliver a guarantee and the Security contemplated hereby and become a
party to the Collateral Agency Agreement, as guarantor. The
applicable Global Group Entities shall also deliver or cause the delivery
of a pledge of all of the Equity and Debt of each new Guarantor owned by
such Global Group Entity as part of the Security and cause the delivery of
such legal opinions and other supporting documents as the Agent may
reasonably require.
|
Section
4 – Amendment
to Financial Covenants
(a) Section
7.1(1) of the Existing Credit Agreement is deleted and replaced with the
following provision:
|
|
7.1(1)
|
The
Borrower shall have at Closing (after consummation of and giving effect to
the Implementation Transactions) and shall at all times during the
applicable time periods noted below maintain a Total Leverage Ratio of not
greater than the applicable ratio set forth
below:
|
|
Periods Ending
|
Total Leverage Ratio
|
|
From
30 November 2005 to 31 May 2006
|
6.00
to 1.00
|
|
From
1 June 2006 to 29 November 2007
|
6.25
to 1.00
|
|
From
30 November 2007 to 28 February 2008
|
6.00
to 1.00
|
|
From
29 February 2008 to 30 May 2008
|
5.50
to 1.00
|
|
From
31 May 2008 to 31 August 2008
|
5.00
to 1.00
|
|
From
1 September 2008 to 30 November 2008
|
5.25
to 1.00
|
|
From
1 December 2008 to 28 February 2009
|
5.75
to 1.00
|
|
From
1 March 2009 to 31 May 2009
|
6.50
to 1.00
|
|
From
1 June 2009 to 27 February 2010
|
6.75
to 1.00
|
|
From
28 February 2010 to 30 May 2010
|
6.00
to 1.00
|
|
From
31 May 2010 to 30 August 2010
|
5.75
to 1.00
|
|
31 August 2010
and thereafter
|
5.25
to 1.00
|
(b) Section 7.1(2) of
the Existing Credit Agreement is deleted and replaced with the following
provision:
|
|
7.1(2)
|
The
Borrower shall have at Closing (after consummation of and giving effect to
the Implementation Transactions) and shall at all times during the
applicable time periods noted below maintain a Senior Secured Leverage
Ratio of not greater than the applicable ratio set forth
below:
|
|
Periods Ending
|
Senior Secured Leverage
Ratio
|
|
From
30 November 2005 to 30 August 2008
|
3.00
to 1.00
|
|
31 August
2008 and thereafter
|
2.00
to 1.00
|
(c) Section
7.1(3) of the Existing Credit Agreement is deleted and replaced with the
following provision:
|
|
7.1(3)
|
The
Borrower shall have at Closing (after consummation of and giving effect to
the Implementation Transactions) and shall at all times during the
applicable time periods noted below maintain an Interest Coverage Ratio of
not less than the applicable ratio set forth
below:
|
|
Periods Ending
|
Interest Coverage Ratio
|
|
From
30 November 2005 to 31 May 2006
|
2.50
to 1.00
|
|
From
1 June 2006 to 30 November 2006
|
2.00
to 1.00
|
|
From
1 December 2006 to 28 February 2008
|
1.75
to 1.00
|
|
From
29 February 2008 to 30 November 2008
|
2.00
to 1.00
|
|
From
1 December 2008 to 28 February 2009
|
1.75
to 1.00
|
|
From
1 March 2009 to 27 February 2010
|
1.5
to 1.00
|
|
28
February 2010 and thereafter
|
1.75
to 1.00
|
Section 5 – Amendments
to Positive Covenants
(c) Section
7.2(1)(i) of the Existing Credit Agreement is deleted and replaced with the
following provision:
|
|
7.2(1)(i)
|
In
the event that, at any time after October 31, 2008, the average of the
aggregate amounts owed by the Global Group Entities to any counterparties
(calculated on a xxxx-to-market basis) under all Swap Transactions to
which any Global Group Entity is a party as at the close of business in
Toronto during the immediately preceding five (5) consecutive Business
Days exceeds Cdn. $400,000,000 (or the equivalent thereof in any
other currencies), each Global Group Entity shall within three Business
Days reprice or terminate such arrangements or take such other action
acceptable to the Required Lenders so that such aggregate xxxx-to-market
exposure is reduced to an aggregate amount not in excess of Cdn.
$360,000,000.
|
Section
6 – Amendments
to Negative Covenants
(a) Section
7.4(1)(f) of the Existing Credit Agreement is deleted and replaced with the
following provision:
|
|
7.4(1)(f)
|
enter
into any transaction which would result in, or otherwise cause or permit
any action or series of actions which would result in, any Person, or
group of Persons acting in concert, other than the Borrower or another
Obligor, owning sufficient Capital Stock to appoint the majority of the
directors, trustees, managing partners or similar officials having
day-to-day operational control of any of the CanWest Fund Entities;
or
|
(b) Section
7.4(4)(b) of the Existing Credit Agreement is deleted and replaced with the
following provision:
|
|
7.4(4)(b)
|
make
any Investments except for (i) the guarantees given as part of the
Security, and (ii) provided no Default has occurred and is continuing or
would result therefrom, (x) Permitted Investments made between October 13,
2005 and October 31, 2008, (y) investments made by an Obligor in the
Borrower or in another Obligor which is a wholly owned Subsidiary of the
Borrower, which Investments are, to the extent required in Section 3.1,
pledged and delivered to the Collateral Agent, and (z) the guarantees
referred to in Section 1.1.139(k);
|
(c) Section
7.4(4)(c) of the Existing Credit Agreement is deleted and replaced with the
following provision:
|
|
7.4(4)(c)
|
have
any Subsidiaries or hold or acquire Equity or other securities of any
other Person other than another Global Group Entity, or
|
10
|
|
|
become
a partner in any partnership (general or limited) or a co-venturer in any
joint venture other than (i) Non-Group Persons existing at the date of
this Agreement, (ii) any Person acquired, established or resulting from a
Permitted Investment completed prior to October 31, 2008 in respect of
which there has been delivered, as applicable, the guarantees, Security
and related documentation pursuant to Section 3.1, and (iii) resulting
from any merger, amalgamation, consolidation, corporate reorganization or
other transaction among Global Group Entities permitted in Section
7.4(5)(a);
|
Section
7– Amendment
to Events of Default
(a) Section
8.1(g) of the Existing Credit Agreement is deleted and replaced with the
following provision:
|
|
8.1(g)
|
(i)
any Global Group Entity defaults, or (ii) any of the CanWest Fund Entities
or Ten Network Holdings Limited or any of their respective Affiliates
defaults (to the extent that such default would result in a breach of the
financial covenants pursuant to Section 7.1, as determined by the
Required Lenders, acting reasonably on a projected pro forma basis), under
one or more agreements or instruments relating to its Debt or any Swap
Transactions or permits any other event to occur and to continue without
being waived or cured after any applicable grace period specified in such
agreements or instruments, if the effect of one or more of such events is
to accelerate, or to permit the acceleration of, the date on which Debt
(or Swap Transactions) in an aggregate amount of Cdn. $25,000,000 or more
becomes due (whether or not such acceleration actually occurs) or a Global
Group Entity fails to pay any Debt in an aggregate principal amount of
Cdn. $25,000,000 when due, or an Acceleration Notice and Direction (as
such term is defined in the Collateral Agency Agreement) is delivered to
the Collateral Agent in accordance with the Collateral Agency Agreement;
or
|
(b) Section
8.1(s) of the Existing Credit Agreement is deleted and replaced with the
following provision:
|
|
8.1(s)
|
(i)
cash distributions from Non-Group Persons, including any CanWest Fund
Entity and Ten Network Holdings Limited or any of their respective
Affiliates are restricted from being paid to the Borrower, or (ii) there
is a material change in a Non-Group Person's distribution policies, or
(iii) if there occurs a change in Applicable Law related to the trading of
the Equity or ownership restrictions on the Equity of Ten Network Holdings
Limited or its Affiliates that would result in a breach of the financial
covenants
|
11
|
|
|
contained
in Section 7.1, determined by the Required Lenders, acting reasonably, on
a projected pro
forma basis; or
|
Section 8
– Amendment
to Schedule E of Existing Credit Agreement
Schedule E
to the Existing Credit Agreement is deleted and replaced by Schedule E to this
Fourth Amendment Agreement.
Section 9
– Conditions
Precedent to Effectiveness of this Fourth Amendment Agreement
This
Fourth Amendment Agreement shall become binding on the Lenders only upon
satisfaction of the following conditions precedent:
|
(a)
|
execution
and delivery of this Fourth Amendment Agreement by the Borrower and each
of the other Obligors;
|
|
(b)
|
execution
and delivery of this Fourth Amendment Agreement by the Lenders in
accordance with Section 9.2 of the Existing Credit
Agreement;
|
|
(c)
|
no
Event of Default or Pending Event of Default having occurred and being
continuing as at the date of satisfaction of all of the foregoing
conditions precedent;
|
|
(d)
|
the
Agent having received an amendment fee equal to 0.50% of the reduced
amount of the Lender's Commitment (as specified in Schedule E) of those
Lenders who have executed and delivered this Fourth Amendment
Agreement;
|
|
(e)
|
the
Agent having received the favourable opinions of counsel to the Borrower
and such of the other Obligors as it may reasonably require, in relation
to the enforceability of this Fourth Amendment Agreement and the
documentation contemplated hereby;
and
|
|
(f)
|
the
Agent having received such corporate resolutions, incumbency and other
certificates of each of the Borrower and the other Obligors as the Agent
may reasonably request in connection with this Fourth Amendment Agreement
and the transactions contemplated
hereby.
|
Section
10 – Representations
and Warranties
Each of
the Obligors represents and warrants to the Agent and Lenders as
follows:
|
(a)
|
the
execution, delivery and performance by it of this Fourth Amendment
Agreement (i) have been duly authorized by all necessary corporate or
partnership action on its part, and (ii) do not and will not violate its
Constating Documents, any Applicable Law, any Permit or any Contract to
which it is a party;
|
|
(b)
|
this
Fourth Amendment Agreement constitutes a legal, valid and binding
obligation of each of the Obligors enforceable against it in accordance
with its terms, subject to the availability of equitable remedies and the
effect of
|
12
|
|
bankruptcy,
insolvency and similar laws affecting the rights of creditors
generally;
|
|
(c)
|
the
representations and warranties made by it in the Credit Agreement, other
than those expressly stated to be made as of a specific date, are true and
correct as of the date hereof with the same effect as if such
representations and warranties had been made on and as of the date
hereof;
|
|
(d)
|
after
giving effect to this Fourth Amendment Agreement, no Event of Default or
Pending Event of Default has occurred which is continuing on the date
hereof or will occur as a result of entering into this Fourth Amendment
Agreement or the observance or performance of its obligations hereunder;
and
|
|
(e)
|
none
of (i) the execution, delivery or performance of this Fourth
Amendment Agreement, or (ii) the entering into or performance of any
of the transactions contemplated by this Fourth Amendment Agreement,
breach, cause or result in a default under the Senior Subordinated Note
Indenture or result in the Borrower being required to deliver or cause to
be delivered equal and rateable security pursuant to the Senior
Subordinated Note Indenture.
|
Section
11 – Loan
Document
Each of
the Obligors acknowledges that this Fourth Amendment Agreement is a Loan
Document and that all of its representations and warranties concerning Loan
Documents that are contained in the Existing Credit Agreement apply to this
Fourth Amendment Agreement and are deemed to be repeated on its execution of
this Fourth Amendment Agreement as if set out in full in this Fourth Amendment
Agreement.
Section
12 – Continuing
Effect of Existing Credit Agreement
Except as
amended by this Fourth Amendment Agreement, the Existing Credit Agreement shall
remain in full force and effect, without amendment, and is hereby ratified and
confirmed. Without in any way limiting the terms of the Existing Credit
Agreement or any other Loan Document, each Obligor confirms that the Security
made or granted by it pursuant to the Existing Credit Agreement remains in full
force and effect notwithstanding the amendments to the Existing Credit Agreement
contained herein and that such Security shall continue to secure all of the
debts, liabilities and obligations described in Section 3.2 of the Existing
Credit Agreement, including but not limited to those debts, liabilities and
obligations arising as a result of this Fourth Amendment
Agreement. In addition, all of the Loan Documents shall continue in
full force and effect in accordance with their respective terms and are hereby
ratified and confirmed in all respects.
Section
13 – Further
Assurances
Each
Obligor shall promptly do, make, execute or deliver, or cause to be done, made,
executed or delivered, all such further acts, documents and things as the Agent
may require from time to time for the purposes of giving effect to this Fourth
Amendment Agreement and shall use reasonable efforts and take all such steps as
may be within its power to implement, to the full extent, the provisions of this
Fourth Amendment Agreement.
13
Section
14 – Counterparts
and Facsimile
This
Fourth Amendment Agreement may be executed in any number of counterparts, each
of which when executed and delivered shall be deemed to be an original, and such
counterparts together shall constitute one and the same
agreement. For the purposes of this Section, the delivery of a
facsimile copy of an executed counterpart of this Fourth Amendment Agreement
shall be deemed to be valid execution and delivery thereof.
Section
15 – Governing
Law
The
parties agree that this Fourth Amendment Agreement shall be conclusively deemed
to be a contract made under, and shall for all purposes be governed by and
construed in accordance with, the laws of the Province of Ontario and the laws
of Canada applicable in the Province of Ontario.
Section
16 – Interpretation
Capitalized
terms used herein, unless otherwise defined or indicated herein, have the
respective meanings defined in the Existing Credit Agreement. This
Fourth Amendment Agreement and the Existing Credit Agreement shall be read
together and have effect so far as practicable as though the provisions thereof
and the relevant provisions hereof are contained in one document.
Section
17 – Effective
Date
This
Fourth Amendment Agreement shall be effective as of November 4, 2008 and may be
referred to as being dated as of November 4, 2008, notwithstanding the actual
date of execution by the parties hereto as set forth on their respective signing
pages.
[EXECUTION
PAGES FOLLOW]
|
Fourth
Amendment Agreement
|
14
SCHEDULE
E
APPLICABLE
PERCENTAGES OF LENDERS
[see
references in Section 1.1]
|
Lender
|
Commitment
|
Applicable Percentage
|
||||||
|
The
Bank of Nova Scotia
|
$ | 81,169,000 | 27.1 | % | ||||
|
Royal
Bank of Canada
|
$ | 77,471,350 | 25.8 | % | ||||
|
Canadian
Imperial Bank of Commerce
|
$ | 52,897,450 | 17.6 | % | ||||
|
Bank
of Montreal
|
$ | 52,897,450 | 17.6 | % | ||||
|
The
Toronto-Dominion Bank
|
$ | 33,064,750 | 11.0 | % | ||||
|
GE
Canada Finance Holding Company
|
$ | 2,500,000 | 0.8 | % | ||||
| $ | 300,000,000 | 100 | % | |||||
|
Fourth
Amendment Agreement
|
