Exhibit 10(a)
INTERTAN CANADA LTD.
INTERTAN, INC.
NINTH AMENDMENT TO LOAN AGREEMENT
This Ninth Amendment to Loan Agreement (this "Amendment") is dated as of
November 15, 2001 and entered into by and among, inter alia, InterTAN Canada
Ltd., as Canadian Borrower, InterTAN, Inc., as the Parent, the financial
institutions listed on the signature pages hereof (the "Lenders"), and Bank of
America Canada, a Canadian chartered bank, as agent for the Lenders (the
"Agent"), and is made with reference to that certain Loan Agreement dated as of
December 22, 1997 (as amended and in effect the "Loan Agreement"), by and among
the Canadian Borrower, the Lenders and the Agent, as amended by the
Rectification and Amendment No. 1 dated as of February 24, 1998, the Second
Amendment to Loan Agreement dated as of January, 1999, the Third Amendment to
Loan Agreement dated as of April 12, 1999, the Fourth Amendment to Loan
Agreement dated as of July 31, 1999, the Fifth Amendment to Loan Agreement dated
as of October 1, 1999, the Sixth Amendment to Loan Agreement dated as of
December 24, 2000, the Seventh Amendment to Loan Agreement dated as of March 21,
2001 and the Eighth Amendment to Loan Agreement dated as of May 4, 2001.
Capitalized terms used herein without definition shall have the same meanings
herein as set forth in the Loan Agreement.
SECTION 1. AMENDMENTS TO LOAN AGREEMENT
1.1 Subsection 2.4(a) of the Loan Agreement is hereby amended by adding the
following at the end thereof:
"Notwithstanding any other terms hereof, BACAN shall have the right
in its unfettered discretion to have any affiliate of BACAN or any of
its or such affiliate's branches enter into F/X Transactions with the
Canadian Borrower for amounts and on terms as may be approved by
BACAN in its sole discretion and, in connection therewith, to provide
such affiliate or branch with credit support. In any such case, the
Canadian Borrower shall indemnify and save harmless BACAN for and in
respect of any losses, costs, liabilities, damages and expenses which
may be suffered or incurred by BACAN in respect of such F/X
Transaction and/or credit support, such credit support and the
Canadian Borrower's foregoing obligations shall form part of the
Obligations and the foregoing provisions shall apply equally to any
F/X Transaction entered into by such branch of affiliate as if such
F/X Transaction was entered into by BACAN."
1.2 Subsection 15.3(a) of the Loan Agreement is hereby amended by deleting the
phrase "is a non-resident of Canada" in the fourth line thereof and
replacing it with "is not (or is not considered to be) a resident of
Canada".
1.3 Section 15.3 of the Loan Agreement is hereby amended by adding the
following as subsection (c) thereof:
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"Notwithstanding the foregoing or any other terms hereof, in the event that
Bank of America Canada assigns to an affiliate, branch or affiliate's
branch all of its rights, benefits and obligations hereunder in accordance
with Section 15.3(a), then (i) Bank of America Canada shall,
contemporaneous with such assignment, be deemed to have resigned as Agent,
(ii) all references to "Agent" shall be deemed to be references to such
affiliate, branch or affiliate's branch, (iii) Bank of America Canada shall
be released and discharged from any further obligation hereunder but shall
continue to be entitled to the benefit of any indemnities or protections
herein provided including, without limitation, the provisions of Article
14, (iv) Bank of America Canada and such affiliate, branch or affiliate's
branch shall be deemed to have executed and delivered an Assignment and
Acceptance Agreement sufficient to give effect to the assignment,
substantially in the form of Exhibit O, and (v) each of the parties hereto
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agrees to execute and deliver and do and perform such documents, acts and
things as are necessary to record and give effect to the foregoing."
1.4 Section 16.18 of the Loan Agreement is hereby amended by deleting the
reference to "governmental authority" in the third line thereof and
substituting "Public Authority" therefor.
1.5 Subsection 16.19(a) of the Loan Agreement is hereby amended by deleting the
reference to "governmental" in the fifth line thereof and substituting "any
Public Authority" therefor.
SECTION 2. CONDITIONS TO EFFECTIVENESS
2.1 This Amendment shall become effective upon the satisfaction of the
conditions precedent set out in Section 2.2 below (the date of satisfaction
of such conditions being referred to herein as the "Ninth Amendment
Effective Date").
2.2 On or before the date hereof, each of the Canadian Borrower and the Parent
shall deliver or cause to be delivered to the Agent two (2) originally
fully executed copies of this Amendment, as executed by the Canadian
Borrower and the Parent.
SECTION 3. BORROWER'S AND PARENT'S REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders to enter into this Amendment and to amend
the Loan Agreement in the manner provided herein, each of the Canadian Borrower
and Parent represents and warrants to the Agent and each Lender that the
following statements are true, correct and complete:
A. Authorization, Validity, and Enforceability of this Amendment. The
Canadian Borrower or the Parent, as applicable, has the corporate power and
authority to execute and deliver this Amendment and to perform the Loan
Agreement as amended by this Amendment (the "Amended Agreement"). The Canadian
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Borrower or the Parent, as applicable, has taken all necessary corporate action
(including, without limitation, obtaining
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approval of its stockholders if necessary) to authorize its execution and
delivery of this Amendment and the performance of the Amended Agreement. This
Amendment has been duly executed and delivered by the Canadian Borrower or the
Parent, as applicable, and this Amendment and the Amended Agreement constitute
the legal, valid and binding obligations of the Canadian Borrower or the Parent,
as applicable, enforceable against it in accordance with their respective terms
without defence, setoff or counterclaim. The Canadian Borrower's or the
Parent's, as applicable, execution and delivery of this Amendment and the
performance by the Canadian Borrower or the Parent, as applicable, of the
Amended Agreement do not and will not conflict with, or constitute a violation
or breach of, or constitute a default under, or result in the creation or
imposition of any Lien upon the property of the Canadian Borrower or the Parent,
as applicable, or any of its Subsidiaries by reason of the terms of (a) any
contract, mortgage, Lien, lease, agreement, indenture, or instrument to which
the Canadian Borrower or the Parent, as applicable, is a party or which is
binding on it, (b) any Requirement of Law applicable to the Canadian Borrower or
the Parent, as applicable, or any of its Subsidiaries, or (c) the certificate or
articles of incorporation or amalgamation or bylaws of the Canadian Borrower or
the Parent, as applicable, or any of its Subsidiaries.
B. Governmental Authorization. No approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any
Governmental Authority or other person is necessary or required in connection
with the execution, delivery or performance by, or enforcement against, the
Canadian Borrower or the Parent, as applicable, or any of its Subsidiaries of
this Amendment or the Amended Agreement except for such as have been obtained or
made and filings required in order to perfect the Agent's security interests.
C. Absence of Default. No event has occurred and is continuing or will
result from the consummation of the transactions contemplated by this Amendment
that would constitute an Event or an Event of Default.
SECTION 4. MISCELLANEOUS
A. Reference to and Effect on the Loan Agreement and the Other Loan
Documents.
(1) On and after the Ninth Amendment Effective Date, each reference
in the Loan Agreement to "this Agreement", "hereunder", "hereof",
"herein" or words of like import referring to the Loan Agreement,
and each reference in the other Loan Documents to the "Loan
Agreement", "thereunder", "thereof" or words of like import
referring to the Loan Agreement shall mean and be a reference to
the Amended Agreement.
(2) Except as specifically amended by this Amendment, the Loan
Agreement and the other Loan Documents shall remain in full force
and effect and are hereby ratified and confirmed.
(3) The execution, delivery and performance of this Amendment shall
not, except as expressly provided herein, constitute a waiver of
any provision of, or operate as a waiver of any right, power or
remedy of the Agent or
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any Lender under, the Loan Agreement or any of the other Loan
Documents.
B. Captions. The captions contained in this Amendment are for
convenience of reference only, are without substantive meaning and should not be
construed to modify, enlarge or restrict any provision.
C. Governing Law. THIS AMENDMENT SHALL BE INTERPRETED AND THE RIGHTS AND
LIABILITIES OF THE PARTIES HERETO DETERMINED IN ACCORDANCE WITH THE LAWS OF THE
PROVINCE OF ONTARIO AND THE FEDERAL LAWS OF CANADA APPLICABLE THEREIN.
D. Counterparts; Effectiveness. This Amendment may be executed in any
number of counterparts, and by the Agent, each Lender, the Parent and the
Canadian Borrower in separate counterparts, each of which shall be an original,
but all of which shall together constitute one and the same amendment; signature
pages may be detached from multiple separate counterparts and attached to a
single counterpart so that all signature pages are physically attached to the
same document. This Amendment (other than the provisions of Section 1 hereof,
the effectiveness of which is governed by Section 2 hereof) shall become
effective upon the execution of a counterpart hereof by the Canadian Borrower,
the Parent, the Agent and the Lenders and receipt by the Canadian Borrower and
the Agent of written or telephonic notification of such execution and
authorization of delivery thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
INTERTAN CANADA LTD.
By: /s/ James P. Maddox
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Name: James P. Maddox
Title: Vice President, Finance
INTERTAN, INC.
By: /s/ James P. Maddox
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Name: James P. Maddox
Title: Vice President, Finance
BANK OF AMERICA CANADA,
as Agent and as the Lender
By: /s/ Jeff Burdon
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Name: Jeff Burdon
Title: Vice-President