EXHIBIT 10.18
FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
C$45,000,000
AMONG
XXXXXX & XXXXX, LIMITED
AND ANY OF ITS DESIGNATED SUBSIDIARIES
WHICH MAY BECOME A PARTY
TO THIS AGREEMENT, AS SOLIDARY BORROWER
- AND -
CANADIAN IMPERIAL BANK OF COMMERCE
AND ANY OTHER FINANCIAL INSTITUTIONS
WHICH MAY BECOME A PARTY TO THIS AGREEMENT, AS LENDERS
- WITH -
CANADIAN IMPERIAL BANK OF COMMERCE
AS AGENT
EFFECTIVE AS OF SEPTEMBER 24, 2003
WHEREAS the Lead Borrower and the Designated Subsidiaries are indebted to the
Lenders under that certain Credit Agreement dated as of March 24, 1999, entered
into between Xxxxxx & Xxxxx Corporation and any of its Designated Subsidiaries
which may become a party to such agreement, as borrowers, Canadian Imperial Bank
of Commerce and any other financial institutions which may become party to such
agreement, as lenders, and Canadian Imperial Bank of Commerce, as agent, as
amended by First Amendment to Credit Agreement dated as of September 20, 2000,
by Waiver and Second Amendment to Credit Agreement dated as of July 1, 2001, by
Amended Waiver and Third Amendment to Credit Agreement dated as of August 2,
2001, by the appointment of T&B Commander Limited Partnership as Designated
Subsidiary by letter dated August 6, 2000, by Waivers by the Canadian Imperial
Bank of Commerce to Xxxxxx & Xxxxx Corporation, Xxxxxx & Xxxxx, Limited and T&B
Commander Limited Partnership dated respectively September 26, 2001, October 11,
2001, November 29, 2001, December 14, 2001 and December 21, 2001, and by an
Amended and Restated Credit Agreement dated as of December 27, 2001 between and
amongst Xxxxxx & Xxxxx, Limited and any of its Designated Subsidiaries which may
become a party to such Agreement, as solidary Borrower, Canadian Imperial Bank
of Commerce and any other financial institutions which may become a party to
such Agreement, as Lenders, with Canadian Imperial Bank of Commerce, as Agent
(for the purposes of this First Amendment to Amended and Restated Credit
Agreement, the "CREDIT AGREEMENT");
WHEREAS it is now opportune to amend the Credit Agreement to, among other
things, (i) increase the Total Commitment (ii) change the pricing of Borrowings
thereunder, and (iii) modify certain of the representations, warranties and
covenants of the Lead Borrower, all as set forth herein;
NOW, THEREFORE, THE PARTIES HERETO AGREE AS FOLLOWS:
1. The preamble is an integral part hereof. Unless modified as provided in
these presents, defined terms used herein shall have the same meaning
as the one ascribed to them in the Credit Agreement.
2. Section 1.1 of the Credit Agreement is hereby amended in order to
delete the definition of "Applicable Base Rate Margin", "Applicable
Margin", "Applicable LIBOR Margin", "Applicable Prime Rate Margin",
"Commitment Fee Rate", "EBITDA", "Fixed Charge Ratio", "Fixed Charges",
"Letter of Credit Fee Rate" and "Performance Pricing Determination
Date".
3. Section 1.1 of the Credit Agreement is hereby amended in order to
replace the definitions of "Eligible Accounts Receivable", "Eligible
Inventory", "Maturity Date", "Original Credit Agreement", "Security
Documents", "Senior Financial Officer", "Total Commitment" and "US
Credit Agreement", by the following:
"ELIGIBLE ACCOUNTS RECEIVABLE" means, all of the claims, book
debts and accounts receivable of the Borrower (net of credit
notes) which are subject to the Liens created by the Security
Documents, for which the account debtor is not an Affiliate
and is located in Canada or in the United States of America
(or, if located in another jurisdiction, for which the
applicable claim, book debt or account receivable is supported
by a letter of credit acceptable to the Agent that
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has been assigned or charged to the Agent or the Lenders) and
which are outstanding for less than 90 days, other than such
claims, book debts and accounts receivable which are being
disputed by the account debtors or are considered to
constitute bad debts or doubtful accounts under generally
accepted accounting principles, and other than inter-company
receivables;
"ELIGIBLE INVENTORY" means all of the inventory of the
Borrower (valued at the lower of cost, determined using the
first-in-first-out method, replacement cost and net realizable
value, but in no event valued at greater than fair market
value), which consists of finished goods inventory (but in no
event work in process), together with raw materials of the
Borrower, which are, in all cases, located in the Province of
Quebec and are subject to the Liens created by the Security
Documents, excluding therefrom (i) any supplies, spare parts,
goods returned or rejected by customers (ii) supplies, spare
parts and goods that are not saleable, (iii) goods to be
returned to suppliers, (iv) goods in transit and (v) goods
held under consignment or subject to title retention
agreements pending complete payment or subject to any other
special arrangement affecting the title of the Borrower;
"MATURITY DATE" means three years from the Effective Date
hereof as defined in Section 25 below;
"ORIGINAL CREDIT AGREEMENT" means that certain Credit
Agreement dated as of March 24, 1999, entered into between
Xxxxxx & Xxxxx Corporation and any of its Designated
Subsidiaries which may become a party to such agreement, as
borrowers, Canadian Imperial Bank of Commerce and any other
financial institutions which may become party to such
agreement, as lenders, and Canadian Imperial Bank of Commerce,
as agent, as amended by First Amendment to Credit Agreement
dated as of September 20, 2000, by Waiver and Second Amendment
to Credit Agreement dated as of July 1, 2001, by Amended
Waiver and Third Amendment to Credit Agreement dated as of
August 2, 2001, by the appointment of T&B Commander Limited
Partnership as Designated Subsidiary by letter dated August 6,
2000, and by Waivers by the Canadian Imperial Bank of Commerce
to Xxxxxx & Xxxxx Corporation, Xxxxxx & Xxxxx, Limited and T&B
Commander Limited Partnership dated respectively September 26,
2001, October 11, 2001, November 29, 2001, December 14, 2001
and December 21, 2001, by an Amended and Restated Credit
Agreement dated as of December 27, 2001 between and amongst
Xxxxxx & Xxxxx, Limited and any of its Designated Subsidiaries
which may become a party to such Agreement, as solidary
Borrower, Canadian Imperial Bank of Commerce and any other
financial institutions which may become a party to such
Agreement, as Lenders, with Canadian Imperial Bank of
Commerce, as Agent;
"SECURITY DOCUMENTS" is the collective reference to (i) the
movable hypothecs that the Borrower grants in favour of the
Lenders as a continuing collateral guarantee for the execution
and payment of the Borrower's obligations under the Credit
Agreement, as same may be amended, supplemented or restated
from
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time to time, (ii) the documents pursuant to the terms of
which the Borrower assigns its inventory in favour of any
Lender that is a bank under the Bank Act (Canada), the whole
pursuant to the provisions of Section 427 of the Bank Act
(Canada), (iii) the corporate guarantee from the US Parent in
favour of the Lenders for the payment of the Borrower's
obligations under the Credit Agreement as amended by these
presents, and as such Credit Agreement may further be amended,
supplemented or restated from time to time, and (iv) the fire
insurance coverage on the Borrower's inventory naming the
Canadian Imperial Bank of Commerce as beneficiary;
"SENIOR FINANCIAL OFFICER" means the senior officers of the
Borrower from time to time serving as its Vice-President
Finance, Treasurer, Assistant-Treasurer or any other senior
officer of the Borrower occupying similar functions, whatever
his/her actual title;
"TOTAL COMMITMENT" means the several obligations of the
Lenders to make available to the Borrower an aggregate
principal amount of C$45,000,000 (or the Equivalent Amount
thereof), to the extent not cancelled, reduced, or terminated
pursuant to this Agreement;
"US CREDIT AGREEMENT" means the credit agreement dated as of
June 25, 2003, and entered into between the US Parent, as
Borrower, the subsidiaries of the US Parent party thereto as
guarantors, the financial institutions party thereto as
lenders, Wachovia Bank, National Association as issuing bank,
Wachovia Securities, Inc. as arranger and Wachovia Bank,
National Association as administrative agent, as the same may
be amended, extended, restated or supplemented from time to
time.
4. Article I of the Credit Agreement is hereby amended by adding after
Section 1.6 thereof the following Section:
"1.7 SENIOR FINANCIAL OFFICER
Any and all obligations, notices, certificates or other
documents from the Borrower that are required under this
Agreement, may be validly fulfilled for or signed by a Senior
Financial Officer of the Borrower, as the case may be, on
behalf of the Borrower."
5. Section 2.1 of the Credit Agreement is hereby amended by:
(i) deleting the word "and" at the end of paragraph (o);
(ii) replacing the period at the end of paragraph (p) by a
semi-colon;
(iii) by adding the following paragraph (q) immediately after
paragraph (p):
"(q) the Borrower maintains, with financially sound and
reputable insurers, physical damage and liability
insurance with respect to its properties and
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business, against loss or damage of the kinds
customarily insured against by corporations of
established reputation engaged in the same or similar
businesses and similarly situated, and of such types
and in such amounts as are customarily carried under
similar circumstances by such other corporations. "
6. Section 3.1(a) of the Credit Agreement is hereby amended to read as
follows:
"FORTY-FIVE MILLION CANADIAN DOLLARS (C$45,000,000) or the Equivalent
Amount thereof; and"
7. Section 4.5 (b) of the Credit Agreement is hereby amended to read as
follows:
"each Bankers' Acceptance has a term of thirty (30), sixty (60), ninety
(90) or one hundred and eighty (180) days, provided that no Bankers'
Acceptance shall in any event have a term which expires beyond the
Maturity Date";
8. The first paragraph of Section 4.9 of the Credit Agreement is hereby
amended to read as follows:
"Where at any particular time the Borrower has availed itself of US
Dollar Borrowings and, by reason of fluctuations in the exchange rate
applicable thereto, the Equivalent Amount of the US Dollar Borrowings
together with all other Borrowings outstanding hereunder at any time,
is greater than the lesser of the Borrowing Base and the Available
Commitment at the particular time, then the Borrower shall, if so
requested by the Agent, forthwith pay to the Lenders such excess
amount, subject to the Borrower's rights to reborrow such amount or
part thereof if, on the basis of a future calculation made by the
Agent, the Agent determines that the aggregate amount of US Dollar
Borrowings and all other Borrowings outstanding hereunder is less than
the lesser of the Borrowing Base and the Available Commitment at the
particular time."
9. The first paragraph of Section 5.3 of the Credit Agreement is hereby
amended to read as follows:
"The Lead Borrower shall have the option at any time, subject to giving
the Agent five (5) Business Days irrevocable prior written notice to
that effect in the form and substance of Schedule 5.3, to cancel all or
part of the Total Commitment and thus permanently reducing the
Available Commitment by an equal amount as and from the date that such
cancellation takes effect. No such commitment cancellation may be made
for less than five million dollars ($5,000,000) and shall be for whole
multiples of one million dollars ($1,000,000), except where the entire
balance of the Total Commitment is cancelled."
10. Article V of the Credit Agreement is hereby amended by adding after
Section 5.3 thereof the following Section:
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"5.4 MANDATORY PREPAYMENTS
Notwithstanding anything herein contained to the contrary, the
Borrower shall forthwith repay to the Lenders:
(a) Any excess of the Credit Facility (to the extent
utilized at any time) over the lesser of the Total
Commitment and the Borrowing Base; and
(b) Net proceeds of asset dispositions of the Borrower
exceeding $2,500,000, other than sales of inventory
and equipment in the ordinary course of business,
within ten (10) business days of closing of such
disposition, subject however to the right of the
Borrower to replace the assets which have been the
object of such disposition. "
11. The first paragraph of Section 7.1 of the Credit Agreement is hereby
amended to read:
"On each Interest Payment Date the Borrower shall pay to the
Agent for the account of the Lenders interest at a rate per
annum equal to the Prime Rate plus 0.25%, in respect of all
outstanding Borrowings by way of Prime Rate Loans."
12. The first paragraph of Section 7.2 of the Credit Agreement is hereby
amended to read:
"On each Interest Payment Date the Borrower shall pay to the
Agent for the account of the Lenders interest at a rate per
annum equal to the Base Rate plus 0.25%, in respect of all
outstanding Borrowings by way of Base Rate Loans."
13. The first paragraph of Section 7.3 of the Credit Agreement is hereby
amended to read:
"On each LIBOR Interest Payment Date, the Borrower shall pay
the Agent for the account of the Lenders interest in US
Dollars on Borrowings by way of LIBOR Loans at a rate per
annum equal to LIBOR plus 1.75%, on the applicable LIBOR
Interest Payment Date."
14. Section 8.1 of the Credit Agreement is hereby amended to read:
"The Borrower shall pay to the Agent, for the account of the Lenders, a
commitment fee (the "COMMITMENT FEE") at a rate per annum for any given
day applied to the unused available portion of the Credit Facility,
equal to 0.25%, calculated in arrears on the basis of the actual number
of days elapsed divided by 365, payable monthly in arrears on the last
day of each month in every year, and on the day on which (i) the
Borrowings are fully repaid to the Lenders by the Borrower in
principal, interest and costs, and (ii) the Lenders have no further
obligation to make any Borrowing available to the Borrower. This
Commitment Fee will be computed from the effective date of the First
Amendment to Amended and Restated Credit Agreement, with the first of
such payments to be made for the period ending on September 30, 2003.
Notwithstanding the foregoing, should the average of the deposits of
the Borrower held by the Canadian Imperial Bank of Commerce be inferior
to C$15,000,000 for sixty (60)
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consecutive days or more then, as long as this situation continues the
Commitment Fee rate shall be as follows:
(i) 0.625% per annum if this situation occurs between the
thirty-sixth (36th) month and the twenty-fourth (24th) month
preceding the Maturity Date,
(ii) 0.45% per annum if this situation occurs between the
twenty-fourth (24th) month and the twelfth (12th) month
preceding the Maturity Date, and
(iii) 0.25% if this situation occurs between the twelfth (12th)
month preceding the Maturity Date and the Maturity Date."
15. Section 8.2 of the Credit Agreement is hereby amended to read:
"Where the Lead Borrower notifies the Agent that a Borrowing is to be
made by way of Bankers' Acceptances, the Borrower shall pay the Agent
for the account of each Lender having accepted such Bankers'
Acceptances, forthwith upon the acceptance of each such Bankers'
Acceptance, Stamping Fees in Canadian Dollars in each case calculated
by multiplying the face value of each Bankers' Acceptance so accepted
by a rate per annum equal to 1.75% and on the basis of the number of
days to maturity of such Bankers' Acceptance based on a three hundred
and sixty five (365) day year. "
16. Section 9.1 of the Credit Agreement is hereby amended to read:
"For cash management and general operating requirements of the
Borrower, a C$5,000,000 (or the Equivalent Amount thereof) Overdraft
and Letter of Credit facility carve-out will be established by the
Canadian Imperial Bank of Commerce, upon terms and conditions,
including Letter of Credit fees equal to the greater of (i) $250 and
(ii) 1.75% per annum of the face value thereof, and evidenced by such
documents, contracts and agreements, as may be agreed upon from time to
time between the Canadian Imperial Bank of Commerce and any of the Lead
Borrower or any Designated Subsidiary; provided that interest rates on
the Overdraft shall be the same, as the case may be, as those provided
for Prime Rate Loans and Base Rate Loans under this Agreement. Such
documents, contracts and agreements may consist, inter alia, of one or
many Group Banking Agreements, one or many Cash Management Services
Agreements, or one or many similar Centralized Cash Management
Agreements (collectively, the "CCC"), being agreed that such CCC may
include and encompass Persons other than the Borrower hereunder, with
which the Borrower specifically agrees by its signature to these
presents. Such carve-out will not reduce the availability under the
Credit Facility unless it is used to support the CCC. Any utilization
of this Overdraft and Letter of Credit facility carve-out shall be
considered a Borrowing, and shall rank pari passu with the other
utilizations of this Credit Facility. "
17. Section 11.3 of the Credit Agreement is hereby amended by:
(i) deleting the word "and" at the end of paragraph (b);
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(ii) replacing the period at the end of paragraph (c)(ii) by a
semi-colon and adding the word "and" after the semi-colon;
(iii) by adding the following paragraph (d) immediately after
paragraph (c)(ii):
"(d) that it, and its subsidiaries, will conduct their
business and maintain all their property in material
compliance with all federal, provincial and municipal
environmental statues, regulations and by-laws. The Borrower
will indemnify and hold harmless each of the Lenders and their
respective directors, officers, employees and agents in
respect of any cost, losses, damages, expenses, judgments,
suits, claims, awards, fines, sanctions and liabilities
whatsoever (including any costs or expenses of preparing any
necessary environmental assessment report or other such
reports) arising out of or in respect of: (i) the release of
any hazardous or toxic waste or other substance into the
environment from any property of the Borrower or any of its
subsidiaries, and (ii) the remedial action (if any) taken by
the Lender in respect of any such release, contamination or
pollution. This indemnity will survive the repayment or
cancellation of the Credit Facility or the termination of the
Credit Agreement."
18. Section 12.1 of the Credit Agreement is hereby amended by:
(i) deleting the word "and" at the end of paragraph (h);
(ii) replacing the period at the end of paragraph (i) by a
semi-colon and adding the word "and" after the semi-colon; and
(iii) by adding the following paragraph (j) immediately after
paragraph (i):
"(j) completion of financial, business and legal due
diligence at Lenders' satisfaction."
19. Section 13.1 of the Credit Agreement is hereby amended by:
(i) deleting the word "and" at the end of paragraph (k);
(ii) amending paragraph (l) to read:
"there shall be maintained in force at all times (i) a deed of
movable hypothec in the Province of Quebec to be granted by
each of the Lead Borrower and the Designated Subsidiaries in
favour of the Lenders (collectively, the "HYPOTHECS"), in form
and substance reasonably satisfactory to the Agent, together
with the appropriate documents necessary to register the
Hypothecs, in order to grant to the Lenders a first ranking
hypothec on all inventory located in the Province of Quebec
and accounts receivable, present and future, of each of the
Lead Borrower and the Designated Subsidiaries, which Hypothecs
shall secure all of the Borrower's obligations under the
Credit Agreement, including all of the Borrower's obligations
with respect to the Overdraft and Letter of Credit facility,
(ii) the guarantee provided in Section 427 of the Bank Act
(Canada) for the Lead
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Borrower and the Designated Subsidiaries (the "427
DOCUMENTS"), (iii) a corporate guarantee from the US Parent in
favour of the Lenders for the payment of the Borrower's
obligations under the Credit Agreement, as same may be
amended, supplemented or restated from time to time, and (iv)
fire insurance coverage on the Borrower's inventory naming the
Canadian Imperial Bank of Commerce as beneficiary;" and
(iii) by adding the following paragraphs (m) and (n) immediately
after paragraph (l):
"(m) duly and punctually pay and satisfy all other
indebtedness and material obligations of the
Borrower, except where contested in good faith
through appropriate proceedings and except where any
failure to do so does not have, and could not
reasonably be expected to have, a material adverse
effect in the reasonable opinion of the Agent; and
(n) use the Credit Facility in accordance with its
purpose."
20. Section 13.2 of the Credit Agreement is hereby amended by:
(i) deleting the word "and" at the end of paragraph (b);
(ii) replacing the period at the end of paragraph (c) by a
semi-colon; and
(iii) by adding the following paragraphs (d), (e) and (f)
immediately after paragraph (c):
"(d) provide the Agent with a monthly Borrowing Base
certificate of the Borrower when the Credit Facility is drawn;
(e) provide the Agent, upon request by the Agent, with a
forecasted income statement for the upcoming year; and
(f) provide the Agent within forty-five (45) days after
the end of each of the fiscal years of the US Parent forecasts
for the upcoming year, including income statements, statements
of cash flows and balance sheet. "
(iv) by amending its last paragraph to read:
"Information required to be delivered pursuant to paragraphs
13.2(a), 13.2(b) and 13.2(f) above shall be deemed to have
been delivered on the date on which such information has been
posted on the Securities and Exchange Commission of the United
States of America website on the Internet (xxx.xxx.xxx). "
21. Section 13.3 of the Credit Agreement is hereby amended by:
(i) deleting the word "and" at the end of paragraph (d);
(ii) replacing the period at the end of paragraph (e) by a
semi-colon and adding the word "and" after the semi-colon; and
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(iii) by adding the following paragraphs (f) and (g) immediately
after paragraph (e):
"(f) allow any change to its organizational documents,
corporate name, head office or fiscal year-end, or
allow any change in the indirect control in fact of
the Borrower by the US Parent through the indirect
ownership by the parent of all the voting rights and
interests in the Borrower; and
(g) allow more than ten percent (10%) in fair market
value of the inventory owned by the Lead Borrower and
all its direct and indirect subsidiaries to be at any
time located outside the Province of Quebec, provided
that the Lead Borrower and any of its direct and
indirect subsidiaries shall be entitled to make, on a
non-recurrent basis, bulk acquisitions of inventory
for an acquisition price, in each case, not to exceed
One Million Canadian dollars ($1,000,000.00), and
provided further that, in such event, such inventory
be disposed of or repatriated to the Province of
Quebec at the latest three (3) months after its
acquisition by the Lead Borrower or by any of its
direct or indirect subsidiaries."
22. Article XIII of the Credit Agreement is hereby amended by adding after
Section 13.3 thereof the following Section:
"13.4 FINANCIAL COVENANTS CONCERNING US PARENT
So long as the Lenders have any Commitment to the Borrower
under this Agreement or the Borrower is indebted to the Lenders
hereunder, the Borrower covenants with the Lenders that the US Parent
shall at all times meet the following financial covenants:
(a) Minimum Liquidity. At all times during the term of this
Agreement, the US Parent shall maintain Liquidity of not less
than $100,000,000, unless at such time (a) the Senior Notes
(2004) and the Senior Notes (2006) shall have been retired,
refinanced or defeased in full, (b) the Fixed Charge Coverage
Ratio, determined as of the last day of the immediately
preceding fiscal month, shall be greater than 1.15 to 1.00,
and (c) the Interest Coverage Ratio, determined as of the last
day of the immediately preceding fiscal month, shall be
greater than 1.30 to 1.00.
(b) Minimum Consolidated Liquidity. At all times during the term
of this Agreement, the US Parent shall maintain Consolidated
Liquidity of not less than $175,000,000, unless the Fixed
Charge Coverage Ratio, determined as of the last day of the
immediately succeeding fiscal quarter, and as of the last day
of each fiscal quarter ending thereafter until such time as
Consolidated Liquidity shall remain above $175,000,000 for two
(2) consecutive fiscal quarters, shall be greater than or
equal to 1.00 to 1.00.
(c) Consolidated Net Assets. Ten percent (10%) of Consolidated Net
Assets of the US Parent shall at all times be greater than
$52,500,000.
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(d) Consolidated Tangible Net Assets. Twelve and one-half percent
(12.5%) of Consolidated Tangible Net Assets of the US Parent
shall at all times be greater than $52,500,000.
(e) Capital Expenditures. Capital Expenditures of the US Parent
shall not exceed $60,000,000 in the aggregate during any
fiscal year; provided, however, to the extent that amounts
available in the US Credit Agreement for Capital Expenditures
with respect to any fiscal year are not used, up to
$10,000,000 of such amounts may be carried forward to increase
the Dollar limit set forth herein for Capital Expenditures of
the US Parent during the immediately following fiscal year.
For the purposes of paragraphs (a) to (e) of this Section
13.4, capitalized terms shall have the meaning ascribed to them in the
US Credit Agreement.
23. Section 14.1 of the Credit Agreement is hereby amended by:
(i) deleting the word "and" at the end of paragraph (n);
(ii) replacing the period at the end of paragraph (o) by a
semi-colon and adding the word "and" after the semi-colon;
(iii) by adding the following paragraph (p) immediately after
paragraph (o):
"(p) a security under the Security Documents ceases to
constitute a security interest of the nature and
priority contemplated under such Security Document
and under the Credit Agreement or the validity or
enforceability of any Security Documents is disputed
by the Borrower or any of its subsidiaries."
24. REPRESENTATIONS AND WARRANTIES. The Borrower represents and warrants to
the Agent and the Lenders as of the Effective Date that each of the
representations and warranties set forth in Article 2 of the Credit
Agreement, as amended hereby, is true on and as of the Effective Date
as if made on and as of the Effective Date.
The Borrower further represents and warrants to the Agent and the
Lenders as of the Effective Date that the Credit Facility is in good
standing and that there are no existing defaults under the Credit
Agreement.
25. FIRST AMENDMENT EFFECTIVE DATE. This First Amendment to Amended and
Restated Credit Agreement shall become effective on September 24, 2003,
notwithstanding the date of its execution (the "EFFECTIVE Date").
26. COVENANT. The Borrower covenants and agrees to deliver to the Agent, to
the full satisfaction of the Agent and of its legal advisers, at the
latest on September 24, 2003:
(i) all such documents as it may reasonably request relating to
the existence of the Borrower and of the Designated
Subsidiaries, the corporate authority for and the
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validity of this First Amendment to Amended and Restated
Credit Agreement and any other matters relevant hereto;
(ii) all the legal opinions concerning the Borrower and the
Designated Subsidiaries that it considers necessary or useful
in the circumstances.
27. FEES; COSTS AND EXPENSES. The Lead Borrower agrees to pay to the Agent
a) the structuring fee as provided for in the term sheet concerning
this First Amendment to Amended and Restated Credit Agreement and (b)
when invoiced, any costs and expenses, including all reasonable
out-of-pocket expenses of the Agent and the Lenders, including fees and
disbursements of legal counsel for the Agent and the Lenders, in
connection with the execution and delivery of this First Amendment to
Amended and Restated Credit Agreement.
28. MISCELLANEOUS.
(a) This First Amendment to Amended and Restated Credit Agreement
shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns, except
that the Borrower may not assign or otherwise transfer any of
its rights under this First Amendment to Amended and Restated
Credit Agreement without the prior written consent of all the
Lenders.
(b) This First Amendment to Amended and Restated Credit Agreement
shall be governed by and construed in accordance with the law
of the Province of Quebec.
(c) This First Amendment to Amended and Restated Credit Agreement
may be signed in any number of counterparts, each of which
shall be an original, with the same effect as if the
signatures hereto were upon the same instrument. This First
Amendment to Amended and Restated Credit Agreement and the fee
letter referred to herein constitute the entire agreement and
understanding among the parties hereto and supersede any and
all prior agreements and understandings, oral or written,
relating to the subject matter hereof and thereof.
29. NO NOVATION The parties hereto agree that this First Amendment to
Amended and Restated Credit Agreement, its execution and the changes to
the terms and conditions of the Credit Agreement that it contains shall
not constitute novation, and all the sureties, guarantees and other
collateral of whatever nature securing the payment of the indebtedness
of the Borrower under the Credit Agreement shall continue to apply to
the Credit Agreement, as modified by this First Amendment to Amended
and Restated Credit Agreement. All provisions of the Credit Agreement
(together with any Schedules thereto, and together with the provisions
of any undertaking or commitment from any of the Borrower and/or any
Designated Subsidiary related thereto) not amended or supplemented by
these presents, shall remain in full force and effect, without changes
other than those consequential to or required by the provisions of this
First Amendment to Amended and Restated Credit Agreement.
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30. LANGUAGE
The parties have specifically requested that this First Amendment to
Amended and Restated Credit Agreement as well as all other documents
relating to this First Amendment to Amended and Restated Credit
Agreement, including notices, be drafted in English only, without
prejudice however to such documents which may from time to time be
drawn up in French only or in both French and English.
Les parties aux presentes ont expressement requis que la presente
premiere modification a la convention de credit, de meme que tous les
documents, y compris tout avis, s'y rattachant, soient rediges en
anglais seulement, mais sans prejudice cependant auxdits documents qui
peuvent a l'occasion etre rediges en francais seulement ou a la fois en
francais et en anglais.
IN WITNESS WHEREOF the parties hereto have caused this Agreement to be duly
executed as of the date and year first above written.
XXXXXX & XXXXX, LIMITED
By:_________________________________
T&B COMMANDER LIMITED PARTNERSHIP
By:_________________________________
CANADIAN IMPERIAL BANK OF COMMERCE,
AS LENDER
By:_________________________________
CANADIAN IMPERIAL BANK OF COMMERCE,
AS AGENT
By:_________________________________
