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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

TIM 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

J.P. MORGAN 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 TIM 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
(Moody’s,
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   

 

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(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.

 

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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]

 

4


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: 874 Sinclair Road

Oakville, Ontario L6K 2Y1

Attention: Corporate Secretary

  THE TDL GROUP CORP., as Borrower

Facsimile No.: (905) 845-2931

  By:  

/s/ MICHAEL J. MYSKIW

  Name:   Michael J. Myskiw
  Title:   Vice President & Treasurer
  By:  

/s/ JILL E. AEBKER

  Name:   Jill E. Aebker
  Title:   Senior Vice President and Secretary

 

Address: 874 Sinclair Road

Oakville, Ontario L6K 2Y1

Attention: Corporate Secretary

Facsimile No.: (905) 845-2931

    TIM HORTONS INC.,
as Borrower
    By:  

/s/ MICHAEL J. MYSKIW

    Name:   Michael J. Myskiw
    Title:   Vice President & Treasurer
    By:  

/s/ JILL E. AEBKER

    Name:   Jill E. Aebker
    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

     

40 King Street West 62nd Floor

     

Toronto, Ontario M5W 2X6

    By:  

/s/ CHARLIE GREGORIOU

Attention: Managing Director

    Name:   Charlie Gregoriou

Facsimile: (416) 866-3329

    Title:   Director, Commercial Banking
    By:  

/s/ ERIC BORROMEO

    Name:   Eric Borromeo
    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

     

21 South Clark Street

     

Chicago, IL 60670

    By:  

/s/ DANA J. MORAN

Attention: Dana Moran

    Name:   Dana J. Moran

Facsimile: 312-212-5914

    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: 200 Bay Street, Suite

1800

    JPMORGAN CHASE BANK,
N.A.,
as Lender

Royal Bank Plaza, South Tower

Toronto, ON M5J 2J2

   

Attention: Dana Moran

    By:  

/s/ DANA J. MORAN

Facsimile No.: 312-212-5914

    Name:   Dana J. Moran
    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 Robert Speck Parkway

Suite 400

Mississauga, ON L4Z 1H8

Attention: Charlie Gregoriou

Facsimile No.: (905) 276-4920

   

THE BANK OF NOVA

SCOTIA, as Lender and Issuing

Bank

    By:  

/s/ CHARLIE GREGORIOU

    Name:   Charlie Gregoriou
    Title:   Director Commercial Banking
    By:  

/s/ ERIC BORROMEO

    Name:   Eric Borromeo
    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:

200 Bay Street

   

ROYAL BANK OF CANADA,

as Lender

4th Floor South Tower

     

Toronto, Ontario M5J 2W7

     

Attention: Managing Director

    By:  

/s/ VISHAL NAYEE

Facsimile No: (416) 842-5321

    Name:   Vishal Nayee
    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/ SAMIN ATIQUE

    Name:   Samin Atique
    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/ TIM THOMAS

Facsmile

    Name:   Tim Thomas
    Title:   Managing Director
    By:  

/s/ RICHARD ROBARTS

    Name:   Richard Robarts
    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/ CAROLINE M. STADE

    Name:   Caroline M. Stade
    Title:   Senior Vice President
    By:  

/s/ WILLIAM G. HINES

    Name:   William G. Hines
    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/ DEBORAH CULLEN

    Name:   Deborah Cullen
    Title:   Director
    By:  

/s/ DAVID GRAHAM

    Name:   David Graham
    Title:   Managing Director