EXHIBIT 10.61
AMENDING AGREEMENT
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THIS AMENDING AGREEMENT dated November 7, 1997
BETWEEN:
CANADIAN ULTRAMAR COMPANY
- and -
ULTRAMAR DIAMOND SHAMROCK CORPORATION
- and -
THE LENDERS HERETO
- and -
CANADIAN IMPERIAL BANK OF COMMERCE
PREAMBLE:
The parties hereto are parties to the Credit Agreement dated as of
December 19, 1996 (the "Credit Agreement") and wish to amend the Credit
Agreement to reflect the changes to the credit established thereunder.
NOW THEREFORE in consideration of the covenants and agreements between
the parties contained in this Amending Agreement and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:
1. INTERPRETATION
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In this Amending Agreement, capitalized terms which are not otherwise
defined herein shall have the meaning given in the Credit Agreement.
2. AMENDMENTS
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The Credit Agreement is hereby amended as follows:
(a) The definition of "Consolidated EBITDA" in Section 1.1 is amended to
read as follows:
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"CONSOLIDATED EBITDA" means in respect of the Borrower or UDSC, as
applicable, for any period, Consolidated Net Income for such period
plus, to the extent deducted in such period in the determination of
Consolidated Net Income:
(a) provisions for taxes based on income;
(b) Consolidated Interest Expense;
(c) depreciation;
(d) amortization; and
(e) distributions made to the holders of TOPrS.
(b) The definition of "Consolidated Interest Expense" in Section 1.1 is
amended to read as follows:
"CONSOLIDATED INTEREST EXPENSE" in respect of the Borrower or UDSC, as
applicable, and its Consolidated Subsidiaries, for any period, total
interest expense (including that portion attributable to Capital
Leases in accordance with GAAP and capitalized interest that is
payable in cash) net of interest income with respect to all
outstanding Indebtedness, including without limitation, all
commissions, discounts (including Discount Notes), other fees and
charges owed with respect to letters of credit and bankers' acceptance
financings and distributions made to the holders of TOPrS.
(c) The definition of "Consolidated Net Worth" in Section 1.1 is amended
to read as follows:
"CONSOLIDATED NET WORTH" means at any date and in respect of the
Borrower or UDSC, as applicable, and its Consolidated Subsidiaries,
the sum of:
(a) its consolidated shareholder's equity determined as of such date;
and
(b) 50% of the liquidation value of outstanding TOPrS determined as
of such date.
(d) The definition of "CONTINGENT OBLIGATIONS" in Section 1.1. is amended
to read as follows:
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"CONTINGENT OBLIGATIONS" means, with respect to any Person, any
obligation of such Person guaranteeing or intended to guarantee any
Indebtedness ("primary obligations") of any other Person (the "primary
obligor") in any manner, whether directly or indirectly, including,
without limitation, any obligation of such Person, whether or not
contingent:
(a) to purchase any such primary obligation or any property
constituting direct or indirect security therefor from the
primary obligee;
(b) to advance or supply funds for the payment of any such primary
obligation or to maintain working capital or equity capital of
the primary obligor or otherwise to maintain the net worth or
solvency of the primary obligor;
(c) to purchase property, securities or services primarily for the
purpose of assuring the primary obligee of the ability of the
primary obligor to make payment of such primary obligation but
excluding agreements on the part of such Person to supply crude
oil or petroleum products or feedstock; or
(d) otherwise to assure or hold harmless the primary obligee against
loss in respect of such primary obligation;
provided, however, that the term Contingent Obligation does not
include endorsements of instruments for deposit or collection in the
ordinary course of business.
(e) The definition of "Indebtedness" in Section 1.1. is amended to read
as follows:
"INDEBTEDNESS" means in relation to any Person and without
duplication, (a) all obligations of such Person for borrowed money or
for the deferred purchase price of property or services (other than
current trade payables within credit terms normally prevailing in the
industry and accrued liabilities incurred in the ordinary course of
business of such Person), (b) all obligations of such Person in
respect of principal evidenced by a note, bond, debenture or similar
instrument, (c) the obligations of such Person which are capitalized
under Capital Leases, (d) all non-contingent obligations (and, for
purposes of Sections 12.3 and 13.1(d), all Contingent Obligations) of
such Person to reimburse any financial institution or other Person in
respect of amounts paid under a letter of credit or similar
instrument, (e) all indebtedness of any other Person secured by any
Lien on any Property owned by such Person, whether or not such
indebtedness has been assumed by such Person, (f) all obligations of
such Person in respect
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of surety bonds, appeal bonds or other similar instruments, (g) in the
case of UDS Capital I, 50% of the liquidation value of outstanding
TOPrS, and (h) all Contingent Obligations of such Person.
(f) The definition of "Joint Proxy Statement" in Section 1.1. is deleted.
(g) The definition of "Repayment Date" in Section 1.1. is amended to read
as follows:
"REPAYMENT DATE" means July 28, 2002.
(h) The definition of "Subsidiary" in Section 1.1. is amended to read as
follows:
"SUBSIDIARY" means, with respect to any Person, (a) any corporation
50% or more of whose stock of any class or classes having by the terms
thereof ordinary voting power to elect a majority of the directors of
such corporation (irrespective of whether or not at the time stock of
any class or classes of such corporation have or might have voting
power by reason of the happening of any contingency) is at the time
owned by such Person directly or indirectly through Subsidiaries and
(b) any partnership, limited liability company, association, joint
venture, trust or other entity in which such Person, directly or
indirectly through Subsidiaries, is either a general partner, has a
50% or greater equity interest at the time or otherwise owns a
controlling interest.
(i) Section 1.1 is amended with the addition of the definitions as
follows:
"TOPRS" means the 8.32% Trust Originated Preferred Securities of UDS
Capital I described in the Prospectus Supplement dated as of June 20,
1997.
"UDSC'S 1996 FORM 10-K" means UDSC's Annual Report on Form 10-K for
1996, as filed with the Securities and Exchange Commission pursuant to
the Securities Exchange Act of 1934.
"UDSC'S LATEST FORM 10-Q" means UDSC's quarterly report on Form 10-
Q for the quarter ended June 30, 1997, as filed with the Securities
and Exchange Commission pursuant to the Securities Exchange Act of
1934.
U) The definition of "U.S. Revolver" in Section 1.1 is amended to read as
follows:
"U.S. REVOLVER" means the revolving credit facility of U.S.
$700,000,000 made available to UDSC pursuant to the Credit Agreement
dated as of July 28, 1997, among UDSC, the Banks Party thereto, Morgan
Guaranty Trust
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Company of New York, as agent, J.P. Morgan Securities Inc. and Chase
Securities Inc., as arrangers, and The Chase Manhattan Bank, as
syndication agent.
(k) Section 3.4 is amended to read as follows:
3.4 CANCELLATION OF CREDIT. The Borrower may, upon three Banking Days
----------------------
prior written notice to the Agent, permanently cancel the Unutilized
Portion of the Credit in whole or from time to time in part, provided
that any partial cancellation must be in a minimum amount of Cdn.
$5,000,000 or any larger multiple of $1,000,000.
(I) Section 10.4 is amended to read as follows:
10.4 FINANCIAL INFORMATION
---------------------
(a) The consolidated balance sheet of UDSC and its Consolidated
Subsidiaries as of December 31, 1996 and the related
consolidated statements of income and cash flows for the
fiscal year then ended, reported on by Ernst & Young LLP and
set forth in UDSC's 1996 Form 10-K, a copy of which has been
delivered to each of the Lenders, fairly present, in
conformity with GAAP the consolidated financial position of
UDSC and its Consolidated Subsidiaries as of such date and
their consolidated results of operations and cash flows for
such fiscal year.
(b) The unaudited consolidated balance sheet of UDSC and its
Consolidated Subsidiaries as of June 30, 1997 and the
related unaudited consolidated statements of income and cash
flows for the six months then ended, set forth in UDSC's
Latest Form 10-Q, a copy of which has been given to each of
the Lenders, fairly present, in conformity with GAAP or SEC
regulation, the consolidated financial position of UDSC as
of such date and its consolidated results of operations and
cash flows for such six month period (subject to year-end
adjustments).
(c) The unaudited consolidated balance sheet of the Borrower
and its Consolidated Subsidiaries as of June 30, 1997 and
the related unaudited consolidated statements of income and
cash flow for the six months then ended, fairly present, in
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conformity with GAAP, the consolidated financial position of
the Borrower and its Consolidated Subsidiaries as of such
date and their consolidated results of operations and cash
flows for such six month period (subject to year-end
adjustments).
(m) Section 10.5 is amended to read as follows:
10.5 MATERIAL ADVERSE CHANGE. Since December 31, 1996, there has
-----------------------
occurred no event, act or condition which has had, or could reasonably
be expected to have, a Material Adverse Effect.
(n) Section 12.3 subsections (k) and (l) are amended to read as follows:
(k) Liens on commingled stored crude oil and product inventory
existing to secure obligations of parties with which the
Borrower, UDSC or any of their respective Subsidiaries have
entered into crude oil processing and crude oil and product
storage agreements;
(l) extensions, renewals and replacements of Liens referred to in
paragraphs (a) through j); provided, that any such extension,
renewal or replacement Lien shall be limited to the property or
assets covered by the Lien extended, renewed or replaced and that
the obligations secured by any such extension, renewal or
replacement Lien shall be in an amount not greater than the
amount of the obligations secured by the Lien extended, renewed
or replaced; and
(o) Section 12.3 is further amended by adding the following subsection:
(m) Liens other than those described in paragraphs (a) through (l)
above; provided that the aggregate outstanding principal amount
of Indebtedness secured by such Liens shall at no time exceed 10%
of Consolidated Net Worth of the Borrower or UDSC, as applicable.
(p) Schedule "F" is amended to read as follows:
Ultramar Diamond Shamrock Corporation Career Average Retirement Income
Plan
Ultramar Diamond Shamrock Corporation Retirement Income Plan
Ultramar Diamond Shamrock Corporation Employee's Retirement Plan
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Ultramar Diamond Shamrock Corporation Employee Stock Ownership Plan
I
Ultramar Diamond Shamrock Corporation Employee Stock Ownership Plan
II
Ultramar Diamond Shamrock Corporation 401(k) Retirement Savings Plan
Ultramar Diamond Shamrock Corporation U.S. Savings Incentive Plan
Ultramar Energy 401(k) Plan
Ultramar Diamond Shamrock Corporation U.S. Employee's Retirement Plan
MULTIEMPLOYER PLANS
New England Teamsters & Trucking Industry Pension Fund
Automotive Industries Welfare Fund
Western Conference of Teamsters Pension Trust Fund - Northern
California Area
Western Conference of Teamsters Pension Trust Fund - Southern Area
3. EFFECTIVE DATE The amendments contained herein shall be effective as of the
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date of this Amending Agreement, provided that the calculations to be made
pursuant to Sections 12.5 and 12.6 as of and with respect to the period ended
September 30, 1997 shall be made as if this Amending Agreement had been in
effect as of such date.
4. CONTINUING EFFECT. Each of the parties hereto acknowledges and agrees that
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the Credit Agreement, as amended by this Amending Agreement, the Guarantee and
Postponement dated as of December 19, 1996 delivered by UDSC to the Agent and
Lenders and the Overdraft Lending Agreement dated December 19, 1996 between CIBC
and the Borrower, shall be and continue in full force and effect and are hereby
confirmed and the rights and obligations of all parties thereunder shall not be
affected or prejudiced in any manner except as specifically provided for herein.
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5. COUNTERPARTS. This Amending Agreement may be executed in any number of
------------
counterparts, each of which when executed and delivered shall be deemed to be an
original, but all of which when taken together constitute one and the same
instrument; any party may execute this Amending Agreement by signing any
counterpart of it.
IN WITNESS WHEREOF, the Parties have caused this Amending Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
CANADIAN ULTRAMAR COMPANY
By: /s/ Steven A. Blank
-------------------------------
Name: Steven A. Blank
Title: Treasurer
Address: c/o Ultramar Diamond Shamrock
Corporation
6000 N. Loop 1604 W.
San Antonio, Texas 78249
Facsimile: (210) 592-2010
ULTRAMAR DIAMOND SHAMROCK
CORPORATION
By: /s/ Steven A. Blank
-------------------------------
Name: Steven A. Blank
Title: Treasurer
Address: 6000 N. Loop 1604 W.
San Antonio, Texas 78249
Facsimile: (210) 592-2010
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LENDERS SIGNATURES
CANADIAN IMPERIAL BANK OF
COMMERCE, AS AGENT
By: /s/ Tim Thomas
-------------------------------
Name: Tim Thomas
Title: Director
Address: Commerce Court West, 7th Flr.,
Toronto, Ontario M5L 1A2
Facsimile: (416) 980-2804
By: /s/ Rick Lomas
---------------------------------
Name: Rick Lomas
Title: Managing Director
Address: Commerce Court West, 7th Flr.,
Toronto, Ontario M5L 1A2
Facsimile: (416) 980-2804
CANADIAN IMPERIAL BANK OF
COMMERCE
By: ___________________________________
Name: James Chepyha
Title: Director, Global Energy
Address: 10th Flr., 855-2nd Street S.W.,
Calgary, Alberta T2P 2P2
Facsimile: (403) 221-5779
By: ___________________________________
Name: David Swain
Title: Vice President & Managing Director
Address: 10th Flr., 855-2nd Street S.W.,
Calgary, Alberta T2P 2P2
Facsimile: (403) 221-5779
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LENDERS SIGNATURES
CANADIAN IMPERIAL BANK OF
COMMERCE, AS AGENT
By:________________________________________
Name: Tim Thomas
Title: Director
Address: Commerce Court West, 7th Flr.,
Toronto, Ontario M5L 1A2
Facsimile: (416) 980-2804
By: _______________________________________
Name: Rick Lomas
Title: Managing Director
Address: Commerce Court West, 7th Flr.,
Toronto, Ontario M5L 1A2
Facsimile: (416) 980-2804
CANADIAN IMPERIAL BANK OF
COMMERCE
By: /s/ James Chepyha
----------------------------------------
Name: James Chepyha
Title: Director, Global Energy
Address: 10th Flr., 855-2nd Street S.W.,
Calgary, Alberta T2P 2P2
Facsimile: (403) 221-5779
By: /s/ David Swain
----------------------------------------
Name: David Swain
Title: Vice President & Managing Director
Address: 10th FIr., 855-2nd Street S.W.,
Calgary, Alberta T2P 2P2
Facsimile: (403) 221-5779
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BANK OF TOKYO - MITSUBISHI (CANADA)
By: /s/ Amos Simpson
----------------------------------------
Name: Amos Simpson
Title: Vice President & General Manager
Address: 600 rue de la Gauchetiere Ouest
Suite 2780, Montreal, Quebec H3B 4L8
Facsimile: (514) 875-9392
FUJI BANK CANADA
By:________________________________________
Name: John Bailey
Title: Senior Vice President
Address: BCE Place, Canada Trust Tower
P.O. Box 609, Suite 2800,
161 Bay Street, Toronto, Ontario
M5J 2S1
Facsimile: (416) 865-9618
THE BANK OF NOVA SCOTIA
By:________________________________________
Name: Michael G. Locke
Title: Vice President
Address: 44 King Street West,
Toronto, Ontario M5H lHl
Facsimile: (416) 866-2009
By:________________________________________
Name: David M. Torrey
Title: Relationship Manager
Address: 44 King Street West,
Toronto, Ontario M5H 1H1
Facsimile: (416) 866-2009
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BANK OF TOKYO - MITSUBISHI (CANADA)
By:________________________________________
Name: Amos Simpson
Title: Vice President & General Manager
Address: 600 rue de la Gauchetiere Ouest
Suite 2780, Montreal, Quebec H3B 4L8
Facsimile: (514) 875-9392
FUJI BANK CANADA
By: /s/ John Bailey
----------------------------------------
Name: John Bailey
Title: Senior Vice President
Address: BCE Place, Canada Trust Tower
P.O. Box 609, Suite 2800,
161 Bay Street, Toronto, Ontario
M5J 2S1
Facsimile: (416) 865-9618
THE BANK OF NOVA SCOTIA
By:________________________________________
Name: Michael G. Locke
Title: Vice President
Address: 44 King Street West,
Toronto, Ontario M5H lHl
Facsimile: (416) 866-2009
By:________________________________________
Name: David M. Torrey
Title: Relationship Manager
Address: 44 King Street West,
Toronto, Ontario M5H 1H1
Facsimile: (416) 866-2009
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BANK OF TOKYO - MITSUBISHI (CANADA)
By:________________________________________
Name: Amos Simpson
Title: Vice President & General Manager
Address: 600 rue de la Gauchetiere Ouest
Suite 2780, Montreal, Quebec H3B 4L8
Facsimile: (514) 875-9392
FUJI BANK CANADA
By:________________________________________
Name: John Bailey
Title: Senior Vice President
Address: BCE Place, Canada Trust Tower
P.O. Box 609, Suite 2800,
161 Bay Street, Toronto, Ontario
M5J 2S1
Facsimile: (416) 865-9618
THE BANK OF NOVA SCOTIA
By: /s/ Michael G. Locke
----------------------------------------
Name: Michael G. Locke
Title: Vice President
Address: 44 King Street West,
Toronto, Ontario M5H lHl
Facsimile: (416) 866-2009
By: /s/ David M. Torrey
----------------------------------------
Name: David M. Torrey
Title: Relationship Manager
Address: 44 King Street West,
Toronto, Ontario M5H 1H1
Facsimile: (416) 866-2009
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ABN AMRO BANK CANADA
By: /s/ [SIGNATURE ILLEGIBLE]^^
----------------------------------------
Name: [ILLEGIBLE]^^
Title: AVP
Address: #1500, 600 de Maisonneuve Ouest
Montreal, Quebec H3A 3J2
Facsimile: (514) 284-2357
CAISSE CENTRALE DESJARDINS
By:________________________________________
Name: Robert Labelle
Title: Manager, Financing and Banking
Services
Address: 1 Complexe Desjardins, Suite 2822
Montreal, Quebec H5B 1B3
Facsimile: (514) 281-7083
By:________________________________________
Name: Michel Paquette
Title: Senior Manager
Address: 1 Complexe Desjardins, Suite 2822
Montreal, Quebec HSB 1B3
Facsimile: (514) 281-7083
CREDIT LYONNAIS CANADA
By:________________________________________
Name: Daniel Arpin
Title: Vice President
Address: 2000 Mansfield, 16th Floor
Montreal, Quebec H3A 3A6
Facsimile: (514) 288-9683
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ABN AMRO BANK CANADA
By:________________________________________
Name:
Title:
Address: #1500, 600 de Maisonneuve Ouest
Montreal, Quebec H3A 3J2
Facsimile: (514) 284-2357
CAISSE CENTRALE DESJARDINS
By: /s/ Robert Labelle
----------------------------------------
Name: Robert Labelle
Title: Manager, Financing and Banking
Services
Address: 1 Complexe Desjardins, Suite 2822
Montreal, Quebec H5B 1B3
Facsimile: (514) 281-7083
By: /s/ Michel Paquette
----------------------------------------
Name: Michel Paquette
Title: Senior Manager
Address: 1 Complexe Desjardins, Suite 2822
Montreal, Quebec HSB 1B3
Facsimile: (514) 281-7083
CREDIT LYONNAIS CANADA
By:________________________________________
Name: Daniel Arpin
Title: Vice President
Address: 2000 Mansfield, 16th Floor
Montreal, Quebec H3A 3A6
Facsimile: (514) 288-9683
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ABN AMRO BANK CANADA
By:________________________________________
Name:
Title:
Address: #1500, 600 de Maisonneuve Ouest
Montreal, Quebec H3A 3J2
Facsimile: (514) 284-2357
CAISSE CENTRALE DESJARDINS
By:________________________________________
Name: Robert Labelle
Title: Manager, Financing and Banking
Services
Address: 1 Complexe Desjardins, Suite 2822
Montreal, Quebec H5B 1B3
Facsimile: (514) 281-7083
By:________________________________________
Name: Michel Paquette
Title: Senior Manager
Address: 1 Complexe Desjardins, Suite 2822
Montreal, Quebec HSB 1B3
Facsimile: (514) 281-7083
CREDIT LYONNAIS CANADA
By: /s/ Cynthia Hansen
----------------------------------------
Name: CYNTHIA HANSEN
Title: MANAGER
Address: 2000 Mansfield, 16th Floor
Montreal, Quebec H3A 3A6
Facsimile: (514) 288-9683
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By: /s/ Thierry Hauret
----------------------------------------
Name: Thierry Hauret
Title: First Vice-President & Manager
Eastern Region
Address: 2000 Mansfield, 16th Floor
Montreal, Quebec H3A 3A6
Facsimile: (514) 288-9683
INDUSTRIAL BANK OF JAPAN (CANADA)
By:________________________________________
Name: Mr. Tatsuhisa Nagao
Title: Executive Vice President
Address: 100 Yonge Street, Suite 1102
Toronto, Ontario M5C 2W1
Facsimile: (416) 367-3452
ROYAL BANK OF CANADA
By:________________________________________
Name: Ritta Y. Lee
Title: Senior Account Manager
Address: Royal Bank Plaza, South Tower
14th Flr., Toronto, Ontario M5J 2J5
Facsimile: (416) 974-7376
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By:________________________________________
Name: Thierry Hauret
Title: First Vice-President & Manager
Eastern Region
Address: 2000 Mansfield, 16th Floor
Montreal, Quebec H3A 3A6
Facsimile: (514) 288-9683
INDUSTRIAL BANK OF JAPAN (CANADA)
By: /s/ Mr. Tatsuhisa Nagao
----------------------------------------
Name: Mr. Tatsuhisa Nagao
Title: Executive Vice President
Address: 100 Yonge Street, Suite 1102
Toronto, Ontario M5C 2W1
Facsimile: (416) 367-3452
ROYAL BANK OF CANADA
By:________________________________________
Name: Ritta Y. Lee
Title: Senior Account Manager
Address: Royal Bank Plaza, South Tower
14th Flr., Toronto, Ontario M5J 2J5
Facsimile: (416) 974-7376
-12-
By:________________________________________
Name: Thierry Hauret
Title: First Vice-President & Manager
Eastern Region
Address: 2000 Mansfield, 16th Floor
Montreal, Quebec H3A 3A6
Facsimile: (514) 288-9683
INDUSTRIAL BANK OF JAPAN (CANADA)
By:________________________________________
Name: Mr. Tatsuhisa Nagao
Title: Executive Vice President
Address: 100 Yonge Street, Suite 1102
Toronto, Ontario M5C 2W1
Facsimile: (416) 367-3452
ROYAL BANK OF CANADA
By: /s/ Fiona Dubsky
----------------------------------------
Name: Fiona Dubsky
Title: Senior Manager
Address: Royal Bank Plaza,
Corporate Banking, Quebec
1 Place Ville Marie,
8th Floor, West Wing
Montreal, Quebec H3C 3AP
Facsimile: (514) 874-5315