AMENDMENT NO. 6 TO CREDIT
AGREEMENT
THIS AMENDING
AGREEMENT is made as of the 17th day of September,
2009,
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 ”);
AND WHEREAS the Agent, the Lenders, the Borrowers and the
Guarantors entered into Amendment No. 5 to Credit Agreement
dated as of May 8, 2009 (the “ Fifth
Amendment ”) (the Original Credit Agreement as
amended by the First Amendment, the Second Amendment, the Third
Amendment, the Fourth Amendment and the Fifth 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:
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.
3.
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.
Subject
to satisfaction of the conditions precedent set forth in
Article IV of this Agreement, the Credit Agreement is
hereby amended as follows:
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(a)
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Section 1.1 of the Credit
Agreement is hereby amended by inserting the following defined term
in proper alphabetical sequence:
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(i)
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“ 2009 Equity Issue
” means the issue of equity securities of Vitran for cash in
or about September, 2009.
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(b)
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Section 9.4 of the Credit
Agreement is hereby deleted in its entirety and replaced with the
following:
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“9.4
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Mandatory Prepayments under the
Credit Facilities.
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(a)
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Asset Dispositions
. Until
December 31, 2010, 100% of the proceeds of any Permitted
Disposition or any sale, assignment, transfer, conveyance or other
disposition of any (i) real estate of any Obligor,
(ii) rolling stock (including without limitation motor
vehicles, tractors and trailers) of any Obligor in an aggregate
amount in excess of $1,000,000 to the extent the proceeds from such
sale are not reinvested by the applicable Obligor in rolling stock
within 90 days of such sale, or (iii) any other assets of
the Obligors in an aggregate amount in excess of $1,000,000, in
each case net of all expenses of disposition and all taxes related
thereto, shall be applied as a mandatory prepayment of the Credit
Facilities on the completion of such Permitted Disposition or such
other sale, assignment, transfer, conveyance, lease or disposition.
Prior to October 1, 2009, any such prepayment shall be applied
firstly to the prepayment of outstanding credit under the Revolving
Facility, and secondly, if no credit remains outstanding under the
Revolving Facility, such proceeds shall be deposited in an account
at JPMorgan Canada as cash collateral for the Secured Obligations.
From October 1, 2009 to and including December 31, 2010,
any such prepayment shall be applied firstly to the prepayment of
outstanding credit under the Term Facility (up to a maximum of
$2,500,000), secondly to the prepayment of outstanding credit under
the Revolving Facility, and thirdly such proceeds shall be
deposited in an account at JPMorgan Canada as cash collateral for
the Secured Obligations. On October 1, 2009, the Borrowers
must make a drawdown under the Revolving Facility in the amount of
all prepayments made under the Revolving Facility pursuant to this
Section (up to a maximum of $2,500,000) and use the proceeds of
such drawdown to make a prepayment of outstanding credit under the
Term Facility (the “ Term Repayment ”). The
first $2,500,000 which is prepaid under the Revolving Facility
pursuant to this Section may not be re-borrowed until such time as
the Term Repayment
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4.
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is
made. Amounts which are prepaid under the Term Facility as
aforesaid may not be re-borrowed.
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(b)
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2009 Equity Issue
. 100% of the net
proceeds of the 2009 Equity Issue shall be applied as a mandatory
prepayment of the Credit Facilities on the completion of the 2009
Equity Issue. Such prepayment shall be applied to the prepayment of
outstanding credit under the Revolving Facility. On October 1,
2009, the Borrowers must make a drawdown under the Revolving
Facility in the amount of $7,500,000 and use the proceeds of such
drawdown to make a prepayment of outstanding credit under the Term
Facility (the “ Equity Term Repayment ”). The
first $7,500,000 which is prepaid under the Revolving Facility
pursuant to this Section may not be re-borrowed until such time as
the Equity Term Repayment is made. Amounts which are prepaid under
the Term Facility as aforesaid may not be
re-borrowed.”
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(c)
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Section 11.1(b) of the Credit
Agreement is hereby deleted in its entirety and replaced with the
following paragraph:
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“(b)
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Debt to EBITDA Ratio.
Vitran shall maintain
the Debt to EBITDA Ratio (i) for the Fiscal Quarter ending
September 30, 2009 at less than or equal to 7.25 to 1,
(ii) for the Fiscal Quarter ending December 31, 2009 at
less than or equal to 6.75 to 1, (iii) for the Fiscal Quarters
ending March 31, 2010 and June 30, 2010 at less than or equal
to 6.50 to 1, (iv) for the Fiscal Quarter ending
September 30, 2010 at less than or equal to 4.50 to 1,
(v) for the Fiscal Quarter ending December 31, 2010 at
less than or equal to 3.50, and (vi) for each Fiscal Quarter
thereafter at less than or equal to 3.25 to 1.”
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(d)
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Section 11.1(c) of the Credit
Agreement is hereby deleted in its entirety and replaced with the
following paragraph:
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“(c)
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U.S. Borrower Debt to EBITDA
Ratio. The
U.S. Borrower shall maintain the U.S. Borrower Debt to EBITDA Ratio
(i) for the Fiscal Quarter ending September 30, 2009 at
less than or equal to 6.75 to 1, (ii) for the Fiscal Quarters
ending December 31, 2009, March 31, 2010 and
June 30, 2010 at less than or equal to 4.50 to 1,
(iii) for the Fiscal Quarter ending September 30, 2010 at
less than or equal to 2.75 to 1, and (iv) for each Fiscal Quarter
thereafter at less than or equal to 2.50 to 1.”
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(e)
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Section 11.1(d) of the Credit
Agreement is hereby deleted in its entirety and replaced with the
following paragraph:
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“(d)
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EBITDAR to Interest Expenses and
Rent Ratio. Vitran shall maintain the EBITDAR
to Interest Expenses and Rent Ratio (i) for the Fiscal
Quarters ending September 30, 2009, December 31, 2009,
March 31, 2010 and June 30, 2010 at greater than or equal
to 1.05 to 1, (ii) for the Fiscal Quarter ending
September 30, 2010 at greater than or equal to 1.30 to 1,
(iii) for the Fiscal Quarter ending December 31, 2010 at
greater than or equal to
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1.40 to 1, and (iv) for each
Fiscal Quarter thereafter at greater than or equal to 1.50 to
1.
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(f)
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Section 11.1(jj) of the Credit
Agreement is hereby deleted in its entirety and replaced with the
following paragraph:
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“(jj)
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Minimum Rolling Twelve Month
EBITDA. Vitran shall maintain Rolling
EBITDA (i) for the Fiscal Quarters ending September 30,
2009 and December 31, 2009 at greater than or equal to
$14,000,000, (ii) for the Fiscal Quarters ending
March 31, 2010 and June 30, 2010 at greater than or equal
to $15,000,000, (iii) for the Fiscal Quarter ending
September 30, 2010 at greater than or equal to $20,000,000,
and (iv) for the Fiscal Quarter ending December 31, 2010
at greater than or equal to $24,000,000.”
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(g)
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Section 11.2(d) of the Credit
Agreement is hereby amended by (i) replacing the date
“December 31, 2009” with the date
“December 31, 2010” on the third line thereof and
(ii) replacing the date “January 1, 2010”
with the date “January 1, 2011” on the eighth line
thereof.
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(h)
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Section 11.2(f) of the Credit
Agreement is hereby amended by (i) replacing the date
“December 31, 2009” with the date
“December 31, 2010” on the second line thereof and
(ii) replacing the date “January 1, 2010”
with the date “January 1, 2011” on the thirteenth
line thereof.
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(i)
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Section 11.2(g) of the Credit
Agreement is hereby amended by replacing the date
“December 31, 2009” with the date
“December 31, 2010” on the second line of each of
subparagraphs (vii) and (viii).
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(j)
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Section 11.2(p) of the Credit
Agreement is hereby amended by replacing the date
“December 31, 2009” with the date
“December 31, 2010” in the last sentence of such
Section.
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(k)
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Section 11.2(s) of the Credit
Agreement is hereby deleted in its entirety and replaced with the
following paragraph:
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“(s)
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Restriction on Capital
Expenditures. Until January 1, 2011, the
Borrowers shall not, and shall not suffer or permit any of the
Subsidiaries to, make or commit to make any Capital Expenditures in
any Fiscal Year in an aggregate amount in excess of $10,000,000,
provided that the amount of any unutilized permitted Capital
Expenditures in the 2009 Fiscal Year may be carried forward and
utilized during the 2010 Fiscal Year.”
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(r)
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Schedule A to the Credit
Agreement is hereby deleted in its entirety and replaced with
Schedule A attached hereto.
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