Exhbit 10.9.9
AMENDMENT NO. 5 TO CREDIT
AGREEMENT
THIS AMENDING
AGREEMENT is made as of
the 8th day of May, 2009,
B E T W E E
N:
JPMORGAN
CHASE BANK ,
N.A.
(hereinafter
referred to as the " Agent ")
THOSE BANKS
WHOSE NAMES APPEAR ON THE SIGNATURE PAGES HERETO
(hereinafter
collectively referred to as the " Lenders
")
VITRAN
CORPORATION INC., VITRAN EXPRESS CANADA INC. AND VITRAN
CORPORATION
(hereinafter
collectively referred to as the " Borrowers
")
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
");
AND WHEREAS the Agent, the Lenders, the Borrowers and the
Guarantors entered into Amendment No. 4 to Credit Agreement dated
as of March 6, 2009 (the " Fourth Amendment ") (the
Original Credit Agreement as amended by the First Amendment, the
Second Amendment, the Third Amendment and the Fourth 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:
ARTICLE I
INTERPRETATION
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.
|
|
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.
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.
|
|
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.
|
|
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.
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.
ARTICLE II
AMENDMENTS AND
CONSENTS
Subject to satisfaction of the conditions
precedent set forth in Article IV of this Agreement, the
Credit Agreement is hereby amended as follows:
|
|
|
Section 1.1 of
the Credit Agreement is hereby amended by inserting the following
definitions in proper alphabetical sequence:
|
|
|
|
" EDC
Guarantee " means an Export Development Canada financial
security guarantee in respect of one or more Letters of Credit, in
form and substance satisfactory to the Agent;
|
|
|
|
" EDC
Guaranteed L/C " means a Letter of Credit, the payment of which
is guaranteed by an EDC Guarantee;
|
|
|
|
" Excluded
Subsidiaries " means Vitran Hungary Zrt., Vitran Spain Holdings
S.L. and Vitran Delaware LLC and " Excluded Subsidiary "
means any one of them;
|
|
|
|
The definition
of " Funded Debt " in Section 1.1. of the Credit Agreement
is hereby amended by inserting the sentence "For purposes of
calculating the financial covenants in Sections 11.1(b), (c), (e)
and (f) only, EDC Guaranteed L/Cs shall be excluded from the
calculation of Funded Debt of the applicable Borrower." at the end
of such definition.
|
|
|
|
Section 10.1(h)
of the Credit Agreement is hereby amended by replacing the phrase
"T.W. Express, Inc., 2022219 Ontario Inc., Vitran Hungary Zrt.,
Vitran Spain Holdings S.L." with the words "the Excluded
Subsidiaries".
|
|
|
|
Section 11.1(r)
of the Credit Agreement is hereby amended by inserting the phrase
"(other than Excluded Subsidiaries)" after the words "after the
date hereof" on the second line thereof.
|
|
|
|
Section 11.2(e)
of the Credit Agreement is hereby amended by replacing the words
"Vitran Hungary Zrt. or Vitran Spain Holding S.L. (Spain)" with the
words "any Excluded Subsidiary".
|
|
|
|
Section
14.21(b) of the Credit Agreement is hereby amended by (A) deleting
the word "and" at the end of subparagraph (iii), (B) by renumbering
subparagraph (iv) to be subparagraph (v), and (C) by inserting the
following provision as a new subparagraph (iv):
|
|
|
|
fourthly, to
the payment to Export Development Canada in respect of any payments
made by it under any EDC Guarantee and any costs and expenses
incurred by or on behalf of Export Development Canada in respect
thereof; and".
|
|
|
|
Section
14.23(b) of the Credit Agreement is hereby amended by inserting the
sentence "Notwithstanding the foregoing two sentences, in the event
Export Development Canada makes a payment under any EDC Guarantee
(such payments are hereinafter referred to as the " EDC
Obligations "), (i) until such time as the EDC Obligations have
been fully satisfied, the Security shall not terminate and the
Agent shall not execute any discharges or releases in connection
therewith, and (ii) each of the Borrowers (A) acknowledges that, at
the request of Export Development Canada, the Agent shall assign to
Export Development Canada the Agent's right, title and interest in
and to the Security, and (B) hereby consents to such assignment."
at the end of such Section.
|
|
|
|
Schedule A to
the Credit Agreement is hereby deleted in its entirety and replaced
with Schedule A attached hereto.
|
Each of the Borrowers and the Lenders hereby
consents to (a) the terms of the Export Development Canada
financial security guarantee reference no. FSG-05-040486E-000 and
financial security guarantee reference no. FSG-05-040487E-000
(collectively, the " Current EDC Guarantees ") together with
each other EDC Guarantee in substantially similar form to the
Current EDC Guarantees, (b) the Agent accepting Export Development
Canada's offers with respect thereto, and (c) the Agent providing
Export Development Canada with notice of any amendments made to the
Credit Agreement (which notice is required pursuant to the terms of
a Current EDC Guarantee).
ARTICLE III
REPRESENTATIONS AND
WARRANTI
