AMENDMENT NO. 4 TO CREDIT AGREEMENT
Exhibit
10.9.9
AMENDMENT
NO. 4 TO CREDIT AGREEMENT
THIS AMENDING AGREEMENT is
made as of the __6th____ day of March,
0000,
X
X X X X X X:
JPMORGAN CHASE BANK, N.A.
(hereinafter
referred to as the "Agent")
-
and -
THOSE
BANKS WHOSE NAMES APPEAR ON THE SIGNATURE PAGES HERETO
(hereinafter
collectively referred to as the "Lenders")
-
and -
VITRAN
CORPORATION INC., VITRAN EXPRESS CANADA INC. AND VITRAN CORPORATION
(hereinafter
collectively referred to as the "Borrowers")
-
and -
THE
GUARANTORS WHOSE NAMES APPEAR ON THE SIGNATURE PAGES HERETO
(hereinafter
collectively referred to as the "Guarantors")
WHEREAS the Agent, the Lenders
and the Borrowers entered into a Credit Agreement dated as of July 31, 2007 (the
"Original Credit
Agreement");
AND WHEREAS the Agent, the
Lenders, the Borrowers and the Guarantors entered into Amendment No. 1 to Credit
Agreement dated as of January 21, 2008 (the "First
Amendment");
AND WHEREAS the Agent, the
Lenders, the Borrowers and the Guarantors entered into Amendment No. 2 to Credit
Agreement dated as of April 10, 2008 (the "Second
Amendment");
AND WHEREAS the Agent, the
Lenders, the Borrowers and the Guarantors entered into Amendment No. 3 to Credit
Agreement dated as of December 30, 2008 (the "Third
Amendment") (the Original Credit Agreement as amended by the First
Amendment, the Second Amendment and the Third Amendment is hereinafter referred
to as the "Credit
Agreement");
AND WHEREAS the Borrowers have
requested certain amendments to the Credit Agreement, and the Agent and the
Lenders have agreed to grant such amendments, subject to the terms and
conditions set out in this Agreement;
NOW THEREFORE in consideration
of the premises and the agreements herein set out and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1
INTERPRETATION
1.1
|
Definitions.
|
Unless
otherwise defined herein, capitalized terms used in this amendment agreement
(this "Agreement"),
including in the recitals hereto, shall have the meanings ascribed to such terms
in the Credit Agreement.
1.2
|
References
to Credit Agreement.
|
Upon
execution of this Agreement, the Credit Agreement shall be deemed to have been
amended as of the Amendment Effective Date (as that term is defined in Article
IV hereof). The terms "hereof", "herein", "this agreement" and
similar terms used in the Credit Agreement, shall mean and refer to, from and
after the Amendment Effective Date, the Credit Agreement as amended by this
Agreement.
1.3
|
Continued
Effectiveness.
|
Nothing
contained in this Agreement shall be deemed to be a waiver by the Agent or the
Lenders of compliance by the Borrowers and Guarantors of any covenant or
agreement contained in, or a waiver of any Default or Event of Default under,
the Credit Agreement or applicable Guarantee and each of the parties hereto
agree that the Credit Agreement as amended by this Agreement shall remain in
full force and effect.
1.4
|
Benefit
of the Agreement.
|
This
Agreement shall enure to the benefit of and be binding upon the Borrowers, the
Guarantors, the Agent and the Lenders and their respective successors and
permitted assigns.
1.5
|
Invalidity
of any Provisions.
|
Any
provision of this Agreement which is prohibited by the laws of any jurisdiction
shall, as to such jurisdiction, be ineffective only to the extent of such
prohibition in such jurisdiction without invalidating the remaining terms and
provisions hereof and no such invalidity shall affect the obligation of the
Borrower to pay the Secured Obligations in full.
1.6
|
Captions
and Heading.
|
The
inclusion of headings preceding the text of the sections of this Agreement and
the headings following each Article in this Agreement are intended for
convenience of reference only and shall not affect in any way the construction
or interpretation thereof.
2
2
AMENDMENTS
AMENDMENTS
2.1
|
Amendments
|
Subject
to satisfaction of the conditions precedent set forth in Article IV of this
Agreement, the Credit Agreement is hereby amended, effective as of December 31,
2008, as follows:
2.1.1.A
|
The definition of
"Equity" in
Section 1.1 of the Credit Agreement is hereby amended by inserting the
phrase ", excluding any impact from non-cash impairment charges related to
goodwill or intangibles arising on or after December 31, 2008, in each
case in accordance with generally accepted accounting principles and as
classified on the consolidated balance sheet of Vitran" after the words
"shareholders' equity of Vitran" on the third line of such
definition.
|
3
REPRESENTATIONS AND
WARRANTIES
3.1
|
Representations
and Warranties.
|
Each
of the Borrowers and the Guarantors hereby represents and warrants to the Agent
and each Lender as follows (which representations and warranties shall survive
the execution and delivery of this Agreement, acknowledging that the Agent and
the Lenders are relying thereon without independent inquiry in entering into
this Agreement):
3.1.1.A
|
Status
and Power. Each Company is a
corporation duly incorporated or amalgamated and organized and validly
existing under the laws of its jurisdiction of incorporation or
amalgamation. Each Company is duly qualified, registered or
licensed in all jurisdictions where such qualification, registration or
licensing is required for such Company to carry on its business, except
where failure to do so could not reasonably be expected to have a Material
Adverse Effect. Each Company has all requisite capacity, power
and authority to own, hold under licence or lease its properties, to carry
on its business and to otherwise enter into, and carry out the
transactions contemplated by, the Loan Documents to which it is a
party. None of the Obligors is an "investment company" within
the meaning of the Investment Company Act of 1940, as
amended.
|
3.1.1.B
|
Authorization
and Enforcement of Loan Documents. All necessary
action, corporate or otherwise, has been taken to authorize the execution,
delivery and performance by each Obligor of this
Agreement. Each Obligor has duly executed and delivered this
Agreement. This Agreement constitutes a legal, valid and
binding obligation of each Obligor, enforceable against each Obligor by
the Agent and the Lenders in accordance with its terms, except to the
extent that the enforceability thereof may be limited by (i) applicable
bankruptcy, insolvency, moratorium, reorganization and other laws of
general application limiting the enforcement of creditors' rights
generally and (ii) the fact that the courts may deny the granting or
enforcement of equitable
rights.
|
3.1.1.C
|
Compliance
with Other Instruments. The execution,
delivery and performance by each Obligor of this Agreement, and the
consummation of the transactions contemplated herein, do not and will not
conflict with, result in any breach or violation of, or constitute a
default under the terms, conditions or provisions of the articles of
incorporation (or amalgamation, as applicable) or by-laws of the Obligors,
any Applicable Law or any agreement, lease, licence, permit or other
instrument to which any Obligor is a party or is otherwise
bound or by which any Obligor benefits or to which its property is subject
and do not require the consent or approval of any Official Body or any
other Person except as has been obtained. Each Obligor has
complied with all Applicable Law in respect of this Agreement and the
transactions contemplated
herein.
|
3
3.1.1.D
|
Compliance
with Laws. None of the
Companies are in violation of any agreement, employee benefit plan,
pension plan, mortgage, franchise, licence, judgment, decree, order,
statute, rule or regulation relating in any way to itself, to the
operation of its business or to its property or assets and which could
reasonably be expected to have a Material Adverse
Effect.
|
3.1.1.E
|
Default. No Default or
Event of Default under the Credit Agreement has occurred or is
continuing.
|
4
CONDITIONS
PRECEDENT
4.1
|
Conditions
Precedent.
|
This
Agreement shall not become effective until the Agent and the Lenders shall have
received the following each dated on or before the date hereof and all in form
and substance satisfactory to the Agent and the Majority Lenders (the date on
which such conditions precedent are satisfied is hereinafter referred to as the
"Amendment
Effective Date"):
4.1.1.A
|
this
Agreement shall have been duly executed and delivered to the Agent and
each of the Lenders on behalf of the Borrowers and the Guarantors;
and
|
4.1.1.B
|
the
Agent shall have received all such other certificates, documents,
opinions, and information that it reasonably
requests.
|
5
CONSENT AND
CONFIRMATION
5.1
|
Guarantors
Consent
|
Each
of the Guarantors hereby consents to the amendments to the Credit Agreement
provided for in this Agreement and hereby confirms that its respective Guarantee
remains in full force and effect with respect to the Secured Obligations under
the Credit Agreement as amended by this Agreement.
6
MISCELLANEOUS
6.1
|
Further
Assurances.
|
Each
of the parties hereto agrees to execute and deliver or cause to be executed and
delivered all such instruments and to take all such action as the other party
may reasonably request, and at the expense of such other party in order to more
fully effectuate and accomplish the intent and purposes of and to carry out the
terms of this Agreement.
6.2
|
Governing
Law.
|
This
Agreement shall be governed by and construed in accordance with the laws of the
Province of Ontario and the federal laws of Canada applicable
therein.
6.3
|
Consent
to Jurisdiction.
|
Each
of the Borrowers and the Guarantors hereby irrevocably submit to the
non-exclusive jurisdiction of the courts of the Province of Ontario in respect
of any action, suit or proceeding arising out of or relating to this Agreement
and hereby irrevocably agrees that all claims in respect of any such action,
suit or proceeding may be heard and determined in any such Ontario
court. Each of the Borrowers and the Guarantors hereby irrevocably
waive, to the fullest extent they may effectively do so, the defense of an
inconvenient forum to the maintenance of such action or
proceeding. Each of the Borrowers and the Guarantors agree that a
final judgment in any such suit, action or proceeding shall be conclusive and
may be enforced in another jurisdiction by suit on the judgment or in any other
manner provided by law. Nothing in this Section 6.3 shall affect the right of
the Agent (on behalf of the Lenders) to bring any suit, action or proceeding
against the Borrowers and the Guarantors (or any one or more of them) or their
respective assets in the courts of any other jurisdiction.
6.4
|
Time
of the Essence.
|
Time
shall be of the essence in this Agreement in all respects.
6.5
|
Counterparts.
|
This
Agreement may be executed and delivered in any number of counterparts, each of
which when so executed and delivered shall be deemed to be an original and all
of which taken together shall constitute one and the same
agreement. Counterparts may be executed and delivered in original,
facsimile or portable document format (pdf) form to the other parties hereto and
the parties hereto agree to accept any such executed counterparts as original
signed versions of this Agreement.
[SIGNATURE
PAGES TO FOLLOW]
4
IN WITNESS WHEREOF the parties
have executed this Agreement on the date first set out above.
VITRAN
CORPORATION INC.
|
VITRAN
EXPRESS CANADA INC.
|
||
By:
/s/ Xxxxxxx X.
Xxxxx
|
By:
/s/ Xxxxxxx X.
Xxxxx
|
||
Name:
|
Xxxxxxx
X. Xxxxx
|
Name:
|
Xxxxxxx
X. Xxxxx
|
Title:
|
President
and Chief Executive Officer
|
Title:
|
Chief
Executive Officer
|
VITRAN
CORPORATION
|
JPMORGAN
CHASE BANK, N.A.,
|
||
as
Agent
|
|||
By:
/s/ Xxxxxxx X.
Xxxxx
|
By:/s/ Xxxxxxx
Xxxxxxx
|
||
Name:
|
Xxxxxxx
X. Xxxxx
|
Name:
|
Xxxxxxx
Xxxxxxx
|
Title:
|
Chief
Executive Officer
|
Title:
|
Vice
President
|
JPMORGAN
CHASE BANK, N.A.,
|
JPMORGAN
CHASE BANK, N.A.
|
||
Toronto
Branch, as Canadian Lender
|
as
U.S. Lender
|
||
By:
/s/ Xxxxxxx
Xxxxxxx
|
By:
/s/ Xxxxxxx
Xxxxxxx
|
||
Name:
|
Xxxxxxx
Xxxxxxx
|
Name:
|
Xxxxxxx
Xxxxxxx
|
Title:
|
Vice
President
|
Title:
|
Vice
President
|
FIFTH
THIRD BANK,
|
FIFTH
THIRD BANK,
|
||
as
U.S. Lender
|
Canadian
Branch, as Canadian Lender
|
||
By:
/s/ Xxxxxxx
Xxxxxxx
|
By:
/s/ Xxxxx
Xxxxxx
|
||
Name:
|
Xxxxxxx
Xxxxxxx
|
Name:
|
Xxxxx
Xxxxxx
|
Title:
|
Vice
President
|
Title:
|
Vice
President
|
XXXXX
FARGO BANK, X.X.
|
XXXXX
FARGO FINANCIAL CORPORATION
|
||
as
U.S. Lender
|
CANADA,
|
||
as
Canadian Lender
|
|||
By:
/s/ Xxxxxx
Xxxxxxxx
|
By:
____________________
|
||
Name:
|
Xxxxxx
X. Xxxxxxxx, III
|
Name:
|
|
Title:
|
Vice
President
|
Title:
|
|
5
NATIONAL
CITY BANK,
|
NATIONAL
CITY BANK,
|
||||
as
U.S. Lender
|
Canada
Branch, as Canadian Lender
|
||||
By:
/s/ Xxxxx
Xxxxxxx
|
By:
/s/ Xxxxxxxx
Xxxxx
|
||||
Name:
|
Xxxxx
X. Xxxxxxx
|
Name:
|
Xxxxxxxx
Xxxxx
|
||
Title:
|
Senior
Vice President
|
Title:
|
Senior
Vice President
|
||
BANK
OF MONTREAL
|
BANK
OF MONTREAL,
|
||||
Chicago
Branch as U.S. Lender
|
as
Canadian Lender
|
||||
By:
_____________________
|
By:
_____________________
|
||||
Name:
|
Name:
|
||||
Title:
|
Title:
|
||||
BANK
OF AMERICA, N.A.
|
BANK
OF AMERICA, N.A.
|
||||
as
U.S. Lender
|
Canada
Branch, as Canadian Lender
|
||||
By:
/s/ Xxxxxxx
Xxxxxxxx
|
By:
/s/ Xxxxxx Sales xx
Xxxxxxx
|
||||
Name:
|
Xxxxxxx
X. Xxxxxxxx
|
Name:
|
Xxxxxx
Sales xx Xxxxxxx
|
||
Title:
|
Vice
President
|
Title:
|
Vice
President
|
||
NATIONAL
BANK OF CANADA,
|
NATIONAL
BANK OF CANADA,
|
||||
New
York Branch, as U.S. Lender
|
as
Canadian Lender
|
||||
By:
_____________________
|
By:
_____________________
|
||||
Name:
|
Name:
|
||||
Title:
|
Title:
|
||||
LAURENTIAN
BANK OF CANADA,
|
|||||
as
Canadian Lender
|
|||||
By:
_____________________
|
|||||
Name:
|
|||||
Title:
|
|||||
6
VITRAN
LOGISTICS LIMITED
|
EXPÉDITEUR
T.W. LTÉE
|
||
By:
/s/ Xxxxxxx X.
Xxxxx
|
By:
/s/ Xxxxxxx X.
Xxxxx
|
||
Name:
|
Xxxxxxx
X. Xxxxx
|
Name:
|
Xxxxxxx
X. Xxxxx
|
Title:
|
Authorized
Signatory
|
Title:
|
Authorized
Signatory
|
1124708
ONTARIO INC.
|
1124709
ONTARIO INC.
|
||
By:
/s/ Xxxxxxx X.
Xxxxx
|
By:
/s/ Xxxxxxx X.
Xxxxx
|
||
Name:
|
Xxxxxxx
X. Xxxxx
|
Name:
|
Xxxxxxx
X. Xxxxx
|
Title:
|
Authorized
Signatory
|
Title:
|
Authorized
Signatory
|
CAN-AM
LOGISTICS INC.
|
1098304
ONTARIO INC.
|
||
By:
/s/ Xxxxxxx X.
Xxxxx
|
By:
/s/ Xxxxxxx X.
Xxxxx
|
||
Name:
|
Xxxxxxx
X. Xxxxx
|
Name:
|
Xxxxxxx
X. Xxxxx
|
Title:
|
Authorized
Signatory
|
Title:
|
Authorized
Signatory
|
ROUT-WAY
EXPRESS LINES LTD./XXX
|
XXXXX
HOLDINGS INC.
|
||
SERVICES
ROUTIERS EXPRESS ROUT LTÉE
|
|||
By:
/s/ Xxxxxxx X.
Xxxxx
|
|||
Name:
|
Xxxxxxx
X. Xxxxx
|
By:
/s/ Xxxxxxx X.
Xxxxx
|
|
Title:
|
Authorized
Signatory
|
Name:
|
Xxxxxxx
X. Xxxxx
|
Title:
|
Authorized
Signatory
|
||
VITRAN
ENVIRONMENTAL SYSTEMS INC.
|
SOUTHERN
EXPRESS LINE OF ONTARIO
|
||
LIMITED
|
|||
By:
/s/ Xxxxxxx X.
Xxxxx
|
|||
Name:
|
Xxxxxxx
X. Xxxxx
|
||
Title:
|
Authorized
Signatory
|
By:
/s/ Xxxxxxx X.
Xxxxx
|
|
Name:
|
Xxxxxxx
X. Xxxxx
|
||
Title:
|
Authorized
Signatory
|
||
0772703
B.C. LTD.
|
1277050
ALBERTA INC.
|
||
By:
/s/ Xxxxxxx X.
Xxxxx
|
By:
/s/ Xxxxxxx X.
Xxxxx
|
||
Name:
|
Xxxxxxx
X. Xxxxx
|
Name:
|
Xxxxxxx
X. Xxxxx
|
Title:
|
Authorized
Signatory
|
Title:
|
Authorized
Signatory
|
7
VITRAN
EXPRESS, INC.
|
VITRAN
EXPRESS WEST INC.
|
||
By:
/s/ Xxxxxxx X.
Xxxxx
|
|||
By:
___________________
|
Name:
|
Xxxxxxx
X. Xxxxx
|
|
Name:
|
Xxxxxxx
X. Xxxxx
|
Title:
|
Authorized
Signatory
|
Title:
|
Authorized
Signatory
|
||
KANSAS
MOTOR FREIGHT CORP.
|
X.X.
XXXXXXXXXXX, INC.
|
||
By:
/s/ Xxxxxxx X.
Xxxxx
|
By:
/s/ Xxxxxxx X.
Xxxxx
|
||
Name:
|
Xxxxxxx
X. Xxxxx
|
Name:
|
Xxxxxxx
X. Xxxxx
|
Title:
|
Authorized
Signatory
|
Title:
|
Authorized
Signatory
|
VITRAN
LOGISTICS, INC.
|
FRONTIER
TRANSPORT CORPORATION
|
||
By:
/s/ Xxxxxxx X.
Xxxxx
|
By:
/s/ Xxxxxxx X.
Xxxxx
|
||
Name:
|
Xxxxxxx
X. Xxxxx
|
Name:
|
Xxxxxxx
X. Xxxxx
|
Title:
|
Authorized
Signatory
|
Title:
|
Authorized
Signatory
|
PJAX,
INC.
|
VITRAN
LOGISTICS CORP.
|
||
By:
/s/ Xxxxxxx X.
Xxxxx
|
By:
/s/ Xxxxxxx X.
Xxxxx
|
||
Name:
|
Xxxxxxx
X. Xxxxx
|
Name:
|
Xxxxxxx
X. Xxxxx
|
Title:
|
Authorized
Signatory
|
Title:
|
Authorized
Signatory
|
LAS
VEGAS/L.A. EXPRESS, INC.
|
|||
By:
/s/ Xxxxxxx X.
Xxxxx
|
|||
Name:
|
Xxxxxxx
X. Xxxxx
|
||
Title:
|
Authorized
Signatory
|
||
8