AMENDMENT NO. 1 TO THE SENIOR FACILITIES CREDIT AGREEMENT, DATED AS OF FEBRUARY 28, 2006, among THE TDL GROUP CORP., as Canadian Borrower, TIM HORTONS INC., as U.S. Borrower, THE LENDERS FROM TIME TO TIME PARTIES THERETO, as Lenders, JPMORGAN CHASE...

Exhibit 10(a)

AMENDMENT NO. 1 TO THE
SENIOR FACILITIES CREDIT AGREEMENT,
DATED AS OF FEBRUARY 28, 2006,

among

THE TDL GROUP CORP.,
as Canadian Borrower,

XXX HORTONS INC.,
as U.S. Borrower,

THE LENDERS FROM TIME TO TIME PARTIES THERETO,
as Lenders,

JPMORGAN CHASE BANK, N.A., TORONTO BRANCH and
THE BANK OF NOVA SCOTIA,
as Canadian Co-Administrative Agents,

JPMORGAN CHASE BANK, N.A.,
as U.S. Administrative Agent

ROYAL BANK OF CANADA,
as Syndication Agent

BANK OF MONTREAL and THE TORONTO-DOMINION BANK,
as Co-Documentation Agents

and

X.X. XXXXXX SECURITIES CANADA INC. and THE BANK OF NOVA SCOTIA,
as Co-Lead Arrangers and Joint Bookrunners

AMENDMENT NO. 1, dated as of April 24, 2006

          This AMENDMENT NO. 1 amends the Senior Facilities Credit Agreement, dated as of February 28, 2006 (the “Senior Credit Agreement”), by and among The TDL Group Corp, as Canadian Borrower (the “Canadian Borrower”), Xxx Hortons Inc., as U.S. Borrower (the “U.S. Borrower”), the lenders party thereto from time to time (collectively, the “Lenders”), JPMorgan Chase Bank, N.A., Toronto Branch, as Canadian Co-Administrative Agent, and The Bank of Nova Scotia, as Canadian Co-Administrative Agent and Issuing Bank, JPMorgan Chase Bank, N.A., as U.S. Administrative Agent and Issuing Bank, Royal Bank of Canada, as Syndication Agent, Bank of Montreal and The Toronto-Dominion Bank, as Co-Documentation Agents, and X.X. Xxxxxx Securities Canada Inc. and The Bank of Nova Scotia, as Co-Lead Arrangers and Joint Bookrunners.

WITNESSETH:

          WHEREAS, the parties hereto wish to amend Section 5.11(a) and (b) of the Senior Credit Agreement to reflect the original intent of the parties that the threshold levels for the financial covenants described in such clauses will adjust with the new thresholds first applying with respect to the U.S. Borrower’s second Fiscal Quarter of 2006, and for any subsequent Fiscal Quarter.

          NOW, THEREFORE, the parties hereto hereby agree as follows:

ARTICLE I

DEFINITIONS

          SECTION 1.1 Definitions. For all purposes of this Amendment No. 1, except as otherwise expressly provided herein or unless the context otherwise requires, capitalized terms used herein shall have the meanings assigned to such terms in the Senior Credit Agreement, which is incorporated by reference herein. Each reference to “hereof”, “hereunder”, “herein” and “hereby” and each other similar reference and each reference to “this Agreement” and each other similar reference contained in the Senior Credit Agreement shall, from and after the date hereof, refer to the Senior Credit Agreement, as amended hereby.

ARTICLE II
AMENDMENTS
TO SENIOR CREDIT AGREEMENT

          SECTION 2.1 Section 5.11(a) of the Senior Credit Agreement. Section 5.11(a) of the Senior Credit Agreement is hereby deleted in its entirety and the following is substituted in its stead:

     “(a) Consolidated Total Debt to Consolidated EBITDA: The U.S. Borrower will not permit, as at the end of each Fiscal Quarter, the ratio of Consolidated Total Debt as at the end of such Fiscal Quarter to Consolidated EBITDA for the Rolling Period then ended, to exceed (i) 3.50:1.00 in respect of the first Fiscal Quarter ending after the Closing Date (the U.S. Borrower’s first Fiscal Quarter, ending April 2, 2006), or (ii) 2.50:1.00 in respect of the second Fiscal Quarter ending after the Closing Date (the U.S. Borrower’s second Fiscal Quarter ending July 2, 2006) and in respect of any subsequent Fiscal Quarters.”

          SECTION 2.2 Section 5.11(b) of the Senior Credit Agreement. Section 5.11(b) of the Senior Credit Agreement is hereby deleted in its entirety and the following is substituted in its stead:

     “(b) Fixed Charge Coverage Ratio. The U.S. Borrower and its Subsidiaries will not permit, as at the end of each Fiscal Quarter, the ratio of Consolidated EBITDAR to Consolidated Fixed Charges for the Rolling Period then ended, to be less than (i) 2.25:1.00 in respect of the first Fiscal Quarter ending after the Closing Date (the U.S. Borrower’s first Fiscal Quarter, ending April 2, 2006), or (ii) 2.75:1.00 in respect of the second Fiscal Quarter ending after the Closing Date (the U.S. Borrower’s second Fiscal Quarter ending July 2, 2006) and in respect of any subsequent Fiscal Quarters.”

ARTICLE III

MISCELLANEOUS

          SECTION 3.1 Effectiveness. This Amendment No. 1 shall be effective retroactively as of February 28, 2006 (the “Effective Date”) upon receipt by the Administrative Agents of a copy of this Amendment No. 1, duly executed by the Canadian Borrower, the U.S. Borrower, the Administrative Agents and the Required Lenders.

          SECTION 3.2 Execution in Counterparts. This Amendment No. 1 may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement.

          SECTION 3.3 Headings. Headings used in this Amendment No. 1 are for convenience of reference only and shall not affect the construction of this Amendment No. 1.

          SECTION 3.4 Reaffirmation of Senior Credit Agreement. The parties hereto agree and acknowledge that nothing contained in this Amendment No. 1 in any manner or respect limits or terminates any of the provisions of the Senior Credit Agreement other than as expressly set forth herein and further agree and acknowledge that the Senior Credit Agreement remains and continues in full force and effect and is hereby ratified and reaffirmed in all respects, as modified by the terms set forth herein. None of the terms and conditions of this

Amendment No. 1 may be changed, waived, modified or varied in any manner, whatsoever, except in accordance with the Senior Credit Agreement.

          SECTION 3.5 Authorization. Each Borrower represents and warrants to the Administrative Agents and the Lenders that this Amendment No. 1 has been duly authorized by all necessary corporate action on the part of such Borrower and has been duly executed and delivered by such Borrower to the Administrative Agents on behalf of the Lenders.

          SECTION 3.6 Reaffirmation of Guarantees. Each Guarantor hereby agrees and acknowledges that the Guarantee provided by such Guarantor remains and continues in full force and effect and is hereby ratified and reaffirmed in all respects.

          SECTION 3.7 Governing Law. THIS AMENDMENT NO. 1 SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE PROVINCE OF ONTARIO.

          SECTION 3.8 Expenses. Each Borrower hereby agrees to pay all reasonable out-of-pocket expenses incurred by the Administrative Agents and their Affiliates in connection with this Amendment No. 1 in accordance with Section 9.3(a) of the Senior Credit Agreement.

          SECTION 3.9 Officer’s Certificate. The Canadian Borrower and the U.S. Borrower shall, on or before one (1) Business Day after the execution of this Amendment No. 1, provide to the Administrative Agents an amendment certificate in the form of Exhibit A hereto. Failure to provide such certificate shall constitute an Event of Default under the Senior Credit Agreement.

[Balance of page intentionally left blank. Signature page follows.]

          IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1 to be executed and delivered by their proper and duly authorized officers as of the first date set forth above.

		THE TDL GROUP CORP., as Canadian Borrower
		By:		/s/ Xxxxxxx X. Xxxxxx
		Printed Name: Xxxxxxx X. Xxxxxx
		Title: Chief Financial Officer
		XXX HORTONS INC., as U.S. Borrower
		By:		/s/ Xxxxxxxx X. Xxxxxxxxxx
		Printed Name: Xxxxxxxx X. Xxxxxxxxxx
		Title: Vice President
		JPMORGAN CHASE BANK, N.A., TORONTO BRANCH, as Canadian Co-Administrative Agent and Lender
		By:		/s/ Xxxx X. XxXxxx
		Print Name: Xxxx X. XxXxxx
		Title: Managing Director
		THE BANK OF NOVA SCOTIA, as Canadian Co-Administrative Agent and Lender
		By:		/s/ X. Xxxxxxxxx
		Print Name: X. Xxxxxxxxx
		Title: Vice President
		JPMORGAN CHASE BANK, N.A., as U.S. Administrative Agent and Lender
		By:		/s/ Xxxxx X. Xxxxxxxxx
		Print Name: Xxxxx X. Xxxxxxxxx
		Title: Vice President

		ROYAL BANK OF CANADA, as a Lender
		By:		/s/ Xxxxx X. Xxxxx
		Print Name: Xxxxx X. Xxxxx
		Title: Authorized Signatory
		By:		/s/ Xxxxxxx Xxxxxxx
		Print Name: Xxxxxxx Xxxxxxx
		Title: Attorney-In-Fact
		BANK OF MONTREAL, as a Lender
		By:		/s/ Xxx X. Xxxxxxxxx
		Print Name: Xxx Xxxxxxxxx
		Title: Vice President
		THE TORONTO-DOMINION BANK, as a Lender
		By:		/s/ Xxxxx Xxxxxxxxx
		Print Name: Xxxxx Xxxxxxxxx
		Title: Managing Director
		TORONTO DOMINION (TEXAS) LLC, as a Lender
		By:		/s/ Xxx Xxxxxxxx
		Print Name: Xxx Xxxxxxxx
		Title: Authorized Signatory
		CANADIAN IMPERIAL BANK OF COMMERCE, as a Lender
		By:
		Print Name:
		Title:
		CIBC INC., as a Lender

	By:
	Print Name:
	Title:
	NATIONAL CITY BANK, CANADA BRANCH, as a Lender
	By:	/s/ Xxxxxxxx Xxxxx
	Print Name:		Xxxxxxxx Xxxxx
	Title:		Vice President
	By:	/s/ X. X. Xxxxx
	Print Name:		X. X. Xxxxx
	Title:		Senior Vice President
	NATIONAL CITY BANK, as a Lender
	By:	/s/ Xxxxxx X. Xxxxxxx
	Print Name:		Xxxxxx X. Xxxxxxx
	Title:		Senior Vice President
	RABOBANK NEDERLAND, CANADIAN BRANCH, as a Lender
	By:	/s/ Xxxxxx X. Xxxxxxx
	Print Name:		Xxxxxx X. Xxxxxxx
	Title:		Vice President
	By:	/s/ Kurram Xxxxxx-Xxxx
	Print Name:		Kurram Xxxxxx-Xxxx
	Title:		Executive Director
	COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A., NEW YORK BRANCH, as a Lender
	By:	/s/ Xxxxx Xxxxxxx
	Print Name:		Xxxxx Xxxxxxx
	Title:		Executive Director
	By:	/s/ Xxx Xxxxx
	Print Name:		Xxx Xxxxx
	Title:		Managing Director

	FIFTH THIRD BANK, as a Lender
	By:
	Print Name:
	Title:
	FIFTH THIRD BANK, AN OHIO BANKING CORPORATION, as a Lender
	By:
	Print Name:
	Title:
	LASALLE COMMERCIAL LENDING, A DIVISION OF ABN AMRO BANK N.V., CANADA BRANCH, as a Lender
	By:
	Print Name:
	Title:
	LASALLE BANK MIDWEST N.A., as a Lender
	By:	/s/ Xxxxxx X. Xxxxx
	Print Name:		Xxxxxx X. Xxxxx
	Title:		First Vice President
	XXXXXXX XXXXX CREDIT PARTNERS L.P., as a Lender
	By:	/s/ Xxxxx Xxxxxxx
	Print Name:		Xxxxx Xxxxxxx
	Title:		Authorized Signatory
	HUNTINGTON NATIONAL BANK, as a Lender
	By:	/s/ Xxxx X. Xxxxxxxx
	Print Name:		Xxxx X. Xxxxxxxx
	Title:		Vice President

ACKNOWLEDGED AND AGREED:
THE THD GROUP, LLC, as Guarantor
By:		/s/ Xxxxxxxx X. Xxxxxxxxxx
Print Name: Xxxxxxxx X. Xxxxxxxxxx
Title: Executive Vice President
THE TDL GROUP, as Guarantor
By:		/s/ Xxxxxxx X. Xxxxxx
Print Name: Xxxxxxx X. Xxxxxx
Title: Chief Financial Officer
THE TDL MARKS CORPORATION, as Guarantor
By:		/s/ Xxxxxx Xxxxxx
Print Name: Xxxxxx Xxxxxx
Title: Director
XXX HORTONS INC., as Guarantor
By:		/s/ Xxxxxxxx X. Xxxxxxxxxx
Print Name: Xxxxxxxx X. Xxxxxxxxxx
Title: Vice President

EXHIBIT A

FORM OF AMENDMENT CERTIFICATE

TO:		JPMORGAN CHASE BANK, N.A., JPMORGAN CHASE BANK, N.A., TORONTO BRANCH, and THE BANK OF NOVA SCOTIA
RE:		Senior Facilities Credit Agreement dated as of February 28, 2006 (as amended, supplemented or otherwise modified from time to time, the “Senior Credit Agreement”), among Xxx Hortons Inc. as U.S. Borrower (the “U.S. Borrower”), The TDL Group Corp. as Canadian Borrower (the “Canadian Borrower”), JPMorgan Chase Bank N.A. and The Bank of Nova Scotia, as Co-Canadian Administrative Agents, JPMorgan Chase Bank N.A. as U.S. Administrative Agent and the Lenders now or hereafter parties thereto.
		We hereby certify, after due and careful investigation, that:
		(i)		each of the representations and warranties made by the Borrowers in the Credit Agreement are true and correct on and as of the date hereof except to the extent that (i) any change to the representations and warranties has been disclosed to the Administrative Agents and accepted by the Required Lenders, or (ii) any representation and warranty is stated to be made as of a particular time; and
		(ii)		on and as of the date hereof, no Default has occurred and is continuing.

             All terms defined in the Credit Agreement and used herein have the meanings given to them by the Credit Agreement.

             DATED: April ___, 2006

XXX HORTONS INC.

By:

Name:

Title:

By:

Name:

Title:

THE TDL GROUP CORP.

By:

Name:

Title:

By:

Name:

Title: