FIFTH AMENDMENT TO
AMENDED AND RESTATED
CREDIT AGREEMENT
This Fifth Amendment to Amended and Restated Credit Agreement (this
"Amendment") dated as of February 1, 2005, by and among LaSalle Business Credit,
a division of ABN AMRO Bank N.V., Canada Branch (such bank herein referred to as
the "Lender"), Cantar/Polyair Canada Limited, an Ontario corporation ("Cantar
Canada") and Cantar Pool Products Limited (formerly Atlantic Pool Products
Limited), an Ontario corporation (collectively with Cantar Canada the
"Borrowers").
Preliminary Statements
The Lender and the Borrowers entered into that certain Amended and Restated
Credit Agreement dated as of May 8, 2003 (as amended by the First Amendment to
Amended and Restated Credit Agreement dated as of December 15, 2003, by the
Second Amendment to Amended and Restated Credit Agreement dated as of July 1,
2004, by the Third Amendment to Amended and Restated Credit Agreement dated as
of September 28, 2004 and by the Fourth Amendment to Amended and Restated Credit
Agreement dated as of October 31, 2004, collectively, the "Loan Agreement").
Each capitalized term which is used but not defined in this Amendment shall have
the meaning set forth in the Loan Agreement.
The Borrowers have requested that the Lender amend the Loan Agreement in
certain respects.
The Lender has agreed to such request, subject to the terms and conditions
set forth herein.
NOW, THEREFORE, in consideration of the foregoing recitals, the mutual
covenants and agreements set forth herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
1. Amendments to Loan Agreement. Subject to the satisfaction of the
conditions set forth herein, the Loan Agreement hereby is amended as follows:
(a) The defined term "Applicable Overadvance Amount" set forth in Section 1
of the Loan Agreement is hereby amended as follows:
"Applicable Overadvance Amount" shall mean, with respect to any
Borrower, an amount equal to (x)(i) at any time on or prior to April 30,
2005, Five Million and No/100 U.S. Dollars (U.S.$5,000,000), or the
Canadian Dollar Equivalent Amount, (ii) during the period commencing on May
1, 2005 and ending on May 31, 2005, Four Million Five Hundred Thousand and
No/100 U.S. Dollars (U.S.$4,500,000), or the Canadian Dollar Equivalent
Amount, (iii) during the period commencing on June 1, 2005 and ending on
June 30, 2005, Three Million Five Hundred Thousand and No/100 U.S. Dollars
(U.S.$3,500,000), or the Canadian Dollar Equivalent Amount, (iv) during the
period commencing on July 1, 2005 and ending on July 31, 2005, Two Million
Five Hundred Thousand and No/100 U.S. Dollars (U.S.$2,500,000), or the
Canadian Dollar Equivalent Amount, and (v) at any time after July 31, 2005,
$0 minus (y) the sum of the advances with respect to subsections 2(a)(i)(D)
and 2(a)(ii)(F) of the U.S. Loan and Security Agreement.
2. Representations and Warranties of The Borrowers. Each of the Borrowers
represents and warrants that, as of the date hereof:
(a) Such Borrower has the right and power and is duly authorized to enter
into this Amendment;
(b) No Event of Default or an event or condition which upon notice, lapse
of time or both will constitute an Event of Default has occurred and is
continuing;
(c) The execution, delivery and performance by such Borrower of this
Amendment and the other agreements to which such Borrower is a party (i) have
been duly authorized by all necessary action on its part; (ii) do not and will
not, by the lapse of time, giving of notice or otherwise, violate the provisions
of the terms of its Articles or Certificate of Incorporation or By-Laws, or of
any mortgage, indenture, security agreement, contract, undertaking or other
agreement to which such Borrower is a party, or which purports to be binding on
such Borrower or any of its properties; (iii) do not and will not, by lapse of
time, the giving of notice or otherwise, contravene any governmental restriction
to which such Borrower or any of its properties may be subject; and (iv) do not
and will not, except as contemplated in the Loan Agreement, result in the
imposition of any lien, charge, security interest or encumbrance upon any of
such Borrower's properties under any indenture, mortgage, deed of trust, loan or
credit agreement or other agreement or instrument to which such Borrower is a
party or which purports to be binding on such Borrower or any of its properties;
(d) No consent, license, registration or approval of any governmental
authority, bureau or agency is required in connection with the execution,
delivery, performance, validity or enforceability of this Amendment; and
(e) This Amendment has been duly executed and delivered by such Borrower
and is enforceable against such Borrower in accordance with its terms.
3. Conditions Precedent. The effectiveness of this Amendment is subject to
the following conditions precedent:
(a) The Borrowers and the Guarantors shall have executed and delivered to
the Lender this Amendment, the documents listed on Exhibit "A" attached hereto
and such other agreements, documents and instruments as the Lender may otherwise
reasonably require shall have been executed and delivered to the Lender, all of
which shall be in form and substance satisfactory to the Lender(and LaSalle
Business Credit, LLC);
(b) Cantar/Polyair Corporation and the other parties to the U.S. Loan and
Security Agreement shall deliver to LaSalle Business Credit, LLC, as agent, an
amendment to the U.S. Loan and Security Agreement, in form and substance
satisfactory to the Lender and its legal counsel;
(c) Borrowers shall have paid to the Lender an amendment fee of U.S.
$8,478;
(d) All proceedings taken in connection with the transactions contemplated
by this Amendment and all documents, instruments and other legal matters
incident thereto shall be satisfactory to the Lender and its legal counsel; and
(e) The absence of any Event of Default or any event which, if uncured,
will become an Event of Default after notice or lapse of time (or both).
4. Fees and Expenses. The Borrowers agree to pay all legal fees and other
expenses, whether for in-house or outside counsel, incurred by the Lender in
connection with this Amendment, and the documents and registrations listed on
Exhibit "A" attached hereto. The Borrowers covenant and undertake to pay in full
or to cause Faircove Investments Inc. ("Faircove") to pay in full the cost of
the title insurance to be issued in favour of the Bank in connection with the
charge/mortgage of land to be delivered by Faircove in favour of the Bank
(charging title to the real property municipally known as ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇) (the "Humberline Mortgage") within two (2) Business Days after
the registration of the Humberline Mortgage.
5. Loan Agreement Remains in Force. Except as specifically amended hereby,
all of the terms and conditions of the Loan Agreement shall remain in full force
and effect and this Amendment shall not be a waiver of any rights or remedies
which the Lender has provided for in the Loan Agreement and all such terms and
conditions are herewith ratified, adopted, approved and accepted.
6. No Novation. This Amendment is not intended to nor shall be construed to
create a novation or accord and satisfaction with respect to any of the
Liabilities.
7. Severability. Any provision of this Amendment that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof or affecting the validity or enforceability of such
provision in any other jurisdiction.
8. Ratification. Except as expressly modified hereby and by any other
supplemental documents or instruments executed by either party hereto in order
to effectuate the transactions contemplated hereby, the provisions of the Loan
Agreement and each Other Agreement are ratified and confirmed by the parties
hereto and remain in full force and effect in accordance with the terms thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed under seal and delivered by their respective duly authorized
officers on the date first written above.
ABN AMRO BANK N.V., CANADA BRANCH
By: _________________________________
Its: _________________________________
By: _________________________________
Its: _________________________________
CANTAR/POLYAIR CANADA LIMITED
By: _________________________________
Its: _________________________________
CANTAR POOL PRODUCTS LIMITED
(formerly known as Atlantic Pool Products Limited)
By: _________________________________
Its: _________________________________
Consented and agreed to by the
following guarantors of the Liabilities
CANTAR/POLYAIR CORPORATION
By: _____________________________
Its: _____________________________
MABEX UNIVERSAL CORPORATION
By: _____________________________
Its: _____________________________
PERFORMA CORP.
By: _____________________________
Its: _____________________________
CANTAR POOL PRODUCTS CORPORATION (formerly known as
Atlantic Pool Products Corporation)
By: _____________________________
Its: _____________________________
C/P INTERNATIONAL CORP., INC.
By: _____________________________
Its: _____________________________
CANTAR/POLYAIR INC.
By: _____________________________
Its: _____________________________
FAIRCOVE INVESTMENTS INC.
By: _____________________________
Its: _____________________________
POLYAIR MACHTECH, INC.
By: _____________________________
Its: _____________________________
Exhibit "A"
(attach list of closing documents)