AMENDMENT NO. 1 made as of January 26, 2012 to SENIOR REVOLVING FACILITY CREDIT AGREEMENT dated as of December 13, 2010 among TIM HORTONS INC. and THE TDL GROUP CORP. as Borrowers and THE LENDERS FROM TIME TO TIME PARTIES HERETO as Lenders and THE...

Exhibit 10.1

AMENDMENT NO. 1

made as of January 26, 2012 to

SENIOR REVOLVING FACILITY CREDIT AGREEMENT

dated as of

December 13, 2010

among

XXX HORTONS INC. and

THE TDL GROUP CORP.

as Borrowers

and

THE LENDERS FROM TIME TO TIME PARTIES HERETO

as Lenders

and

THE BANK OF NOVA SCOTIA

as Administrative Agent

and

JPMORGAN CHASE BANK, N.A.

as Syndication Agent

and

ROYAL BANK OF CANADA

as Documentation Agent

and

X.X. XXXXXX SECURITIES CANADA INC. and THE BANK OF NOVA SCOTIA

as Lead Arrangers and Joint Bookrunners

THIS AMENDMENT NO. 1 (this “Amendment”) is made as of January 26, 2012 by XXX HORTONS INC. (the “Parent Borrower”) and THE TDL GROUP CORP. (the “Subsidiary Borrower”), as Borrowers, the Lenders party hereto, THE BANK OF NOVA SCOTIA, as Administrative Agent, THE BANK OF NOVA SCOTIA, as Issuing Bank and JPMorgan Chase Bank, N.A. as Syndication Agent under that certain Credit Agreement dated as of December 13, 2010 by and among the Borrowers, the Lenders, the Administrative Agent and the Syndication Agent (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”). Capitalized terms used herein and not otherwise defined herein shall have the respective meanings given to them in the Credit Agreement.

WHEREAS, the Borrowers have requested that the Lenders agree to certain amendments to the Credit Agreement;

WHEREAS, the Borrowers and the Lenders party hereto have so agreed on the terms and conditions set forth herein;

NOW, THEREFORE, in consideration of the premises set forth above, the terms and conditions contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Borrowers and the Lenders party hereto hereby agree to enter into this Amendment.

1. Amendments to the Credit Agreement. Effective as of the date of satisfaction of the conditions precedent set forth in Section 2 below, the parties hereto agree that the Credit Agreement is hereby amended as follows:

(a) The definition of “Applicable Margin” appearing in Section 1.1 of the Credit Agreement is amended to restate in its entirety the pricing grid appearing therein to read as follows:


Applicable Leverage Ratio	Rating (Xxxxx’x, S&P, DBRS)	Facility Fee (in basis points)		Base Rate/Prime Rate Applicable Margin (in basis points)		LIBO/EURO/ BA/LC Applicable Margin (in basis points)
Less than 0.50:1.00	³A2, A or A		17.50		0.00		70.00
Equal to or greater than 0.50:1.00 but less than 0.75:1.00	³A3, A- or A (low)		20.00		0.00		80.00
Equal to or greater than 0.75:1.00 but less than 1.00:1.00	³Baa1, BBB+ or BBB (high)		25.00		00.0		100.00
Equal to or greater than 1.00:1.00 but less than 1.50:1.00	³Baa2, BBB or BBB		30.00		20.0		120.00
Equal to or greater than 1.50:1.00	< Baa2, BBB or BBB		35.00		40.0		140.00

(b) The definition of “Maturity Date” appearing in Section 1.1 of the Credit Agreement is amended to restate in its entirety as follows:

“Maturity Date” means January 26, 2017.

2. Conditions of Effectiveness. The effectiveness of this Amendment is subject to the conditions precedent that (i) the Administrative Agent and the Syndication Agent (the “Agents”) shall have received counterparts of this Amendment duly executed by the Borrowers, the Lenders and the Agents, (ii) the Agents shall have received such instruments and documents as the Agents shall reasonably request, including a written opinion of in-house counsel to the Borrowers, in form and substance reasonably acceptable to the Agents, and (iii) the Agent’s shall have received from the Borrowers all fees and other amounts due and payable, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel for the Agents) required to be reimbursed or paid by the Borrowers in connection with this Amendment and under the Loan Documents.

3. Representations and Warranties of the Borrowers The Borrowers hereby represents and warrants as follows:

(a) This Amendment and the Credit Agreement as modified hereby constitute legal, valid and binding obligations of the Borrowers and are enforceable against the Borrowers in accordance with their terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.

(b) As of the date hereof and after giving effect to the terms of this Amendment, (i) no Default shall have occurred and be continuing and (ii) the representations and warranties of the Credit Parties set forth in the Credit Agreement, as amended hereby, are true and correct.

4. Reference to and Effect on the Credit Agreement.

(a) Upon the effectiveness hereof, each reference to the Credit Agreement in the Credit Agreement or any other Loan Document shall mean and be a reference to the Credit Agreement as amended hereby.

(b) Each Loan Document and all other documents, instruments and agreements executed and/or delivered in connection therewith shall remain in full force and effect and are hereby ratified and confirmed.

(c) Except with respect to the subject matter hereof, the execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any right, power or remedy of the Agents or the Lenders, nor constitute a waiver of any provision of the Credit Agreement, the Loan Documents or any other documents, instruments and agreements executed and/or delivered in connection therewith.

5. Governing Law. This Amendment shall be construed in accordance with and governed by the law of the Province of Ontario.

6. Headings. Section headings in this Amendment are included herein for convenience of reference only and shall not constitute a part of this Amendment for any other purpose.

7. Counterparts. This Amendment may be executed by one or more of the parties hereto on any number of separate counterparts, and all of said counterparts taken together shall be deemed to constitute one and the same instrument. Signatures delivered by facsimile or PDF shall have the same force and effect as manual signatures delivered in person.

[Signature Pages Follow]

IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their respective authorized officers as of the day and year first above written.


Address: 000 Xxxxxxxx Xxxx Xxxxxxxx, Xxxxxxx X0X 0X0 Attention: Corporate Secretary	THE TDL GROUP CORP., as Borrower
Facsimile No.: (000) 000-0000	By:	/s/ XXXXXXX X. XXXXXX
	Name:	Xxxxxxx X. Xxxxxx
	Title:	Vice President & Treasurer

	By:	/s/ XXXX X. XXXXXX
	Name:	Xxxx X. Xxxxxx
	Title:	Senior Vice President and Secretary


Address: 000 Xxxxxxxx Xxxx Xxxxxxxx, Xxxxxxx X0X 0X0 Attention: Corporate Secretary Facsimile No.: (000) 000-0000	XXX HORTONS INC., as Borrower
	By:	/s/ XXXXXXX X. XXXXXX
	Name:	Xxxxxxx X. Xxxxxx
	Title:	Vice President & Treasurer

	By:	/s/ XXXX X. XXXXXX
	Name:	Xxxx X. Xxxxxx
	Title:	Senior Vice President and Secretary

	[Signatures continued on next page]

IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their respective authorized officers as of the day and year first above written.


Address:	THE BANK OF NOVA SCOTIA, as Administrative Agent
Scotia Plaza
00 Xxxx Xxxxxx Xxxx 00^xx Xxxxx
Xxxxxxx, Xxxxxxx X0X 0X0	By:	/s/ XXXXXXX XXXXXXXXX
Attention: Managing Director	Name:	Xxxxxxx Xxxxxxxxx
Facsimile: (000) 000-0000	Title:	Director, Commercial Banking

	By:	/s/ XXXX XXXXXXXX
	Name:	Xxxx Xxxxxxxx
	Title:	Director, Credit Solutions Group

	[Signatures continued on next page]

IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their respective authorized officers as of the day and year first above written.


Address:	JPMORGAN CHASE BANK, N.A., as Syndication Agent
IL1-0364
00 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, XX 00000	By:	/s/ XXXX X. XXXXX
Attention: Xxxx Xxxxx	Name:	Xxxx X. Xxxxx
Facsimile: 000-000-0000	Title:	Vice President

	[Signatures continued on next page]

IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their respective authorized officers as of the day and year first above written.


Address: 000 Xxx Xxxxxx, Xxxxx 0000	XXXXXXXX CHASE BANK, N.A., as Lender
Xxxxx Xxxx Xxxxx, Xxxxx Xxxxx Xxxxxxx, XX X0X 0X0
Attention: Xxxx Xxxxx	By:	/s/ XXXX X. XXXXX
Facsimile No.: 000-000-0000	Name:	Xxxx X. Xxxxx
	Title:	Vice President

	[Signatures continued on next page]

IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their respective authorized officers as of the day and year first above written.


Address: 2 Xxxxxx Xxxxx Xxxxxxx Xxxxx 000 Xxxxxxxxxxx, XX X0X 0X0 Attention: Xxxxxxx Xxxxxxxxx Facsimile No.: (000) 000-0000	THE BANK OF NOVA SCOTIA, as Lender and Issuing Bank
	By:	/s/ XXXXXXX XXXXXXXXX
	Name:	Xxxxxxx Xxxxxxxxx
	Title:	Director Commercial Banking

	By:	/s/ XXXX XXXXXXXX
	Name:	Xxxx Xxxxxxxx
	Title:	Director, Credit Solutions Group

	[Signatures continued on next page]

IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their respective authorized officers as of the day and year first above written.


Address: 000 Xxx Xxxxxx	XXXXX XXXX XX XXXXXX, as Lender
0^xx Xxxxx Xxxxx Xxxxx
Xxxxxxx, Xxxxxxx X0X 0X0
Attention: Managing Director	By:	/s/ XXXXXX XXXXX
Facsimile No: (000) 000-0000	Name:	Xxxxxx Xxxxx
	Title:	Authorized Signatory

	By:
	Name:
	Title:

	[Signatures continued on next page]

IN WITNESS WHEREOF, the parties hereto have caused this Amendment be duly executed by their respective authorized officers as of the day and year first above written.


Address:	CITIBANK, N.A., Canadian branch, as Lender
Attention:
Facsimile:
	By:	/s/ XXXXX XXXXXX
	Name:	Xxxxx Xxxxxx
	Title:	Authorized Signatory

	By:
	Name:
	Title:

	[Signatures continued on next page]

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written.


Address:	THE TORONTO-DOMINION BANK, as Lender

Attention:	By:	/s/ XXX XXXXXX
Facsmile	Name:	Xxx Xxxxxx
	Title:	Managing Director

	By:	/s/ XXXXXXX XXXXXXX
	Name:	Xxxxxxx Xxxxxxx
	Title:	Vice President

	[Signatures continued on next Page]

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written.


Address: Attention: Facsimile No.:	PNC BANK, Canada Branch., as Lender
	By:	/s/ XXXXXXXX X. XXXXX
	Name:	Xxxxxxxx X. Xxxxx
	Title:	Senior Vice President

	By:	/s/ XXXXXXX X. XXXXX
	Name:	Xxxxxxx X. Xxxxx
	Title:	Senior Vice President

	[Signatures continued on next page]

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written.


Address:	BANK OF MONTREAL, as Lender
Attention: Facsimile No.:	By:	/s/ XXXXXXX XXXXXX
	Name:	Xxxxxxx Xxxxxx
	Title:	Director

	By:	/s/ XXXXX XXXXXX
	Name:	Xxxxx Xxxxxx
	Title:	Managing Director

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AMENDMENT NO. 1 made as of January 26, 2012 to SENIOR REVOLVING FACILITY CREDIT AGREEMENT dated as of December 13, 2010 among TIM HORTONS INC. and THE TDL GROUP CORP. as Borrowers and THE LENDERS FROM TIME TO TIME PARTIES HERETO as Lenders and THE...

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