EXHIBIT 10.17
AMENDMENT NO. 1
Amendment No. 1 (this "Amendment"), dated as of October 6, 2004, to
that certain Credit and Guaranty Agreement, dated as of June 4, 2004 (the
"Credit Agreement"; capitalized terms used herein and not defined shall have the
meaning set forth in the Credit Agreement), among MAAX CORPORATION, a Nova
Scotia unlimited company ("Company"), BEAUCELAND CORPORATION, a Nova Scotia
unlimited company ("Holdings"), CERTAIN SUBSIDIARIES OF HOLDINGS, as Guarantors,
the Lenders party hereto from time to time, GOLDMAN SACHS CREDIT PARTNERS L.P.,
as Joint Lead Arranger and as Syndication Agent, ROYAL BANK OF CANADA, as
Administrative Agent (in such capacity, "Administrative Agent") and as
Collateral Agent, ROYAL BANK OF CANADA, ACTING THROUGH ITS BUSINESS GROUP RBC
CAPITAL MARKETS, as Joint Lead Arranger, and MERRILL LYNCH & CO., MERRILL LYNCH,
PIERCE, FENNER & SMITH INCORPORATED, as Joint Lead Arranger and as Documentation
Agent.
W I T N E S S E T H :
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WHEREAS, Company desires to amend the Credit Agreement; and
WHEREAS, pursuant to Section 10.5 of the Credit Agreement, Company
and each of the undersigned Lenders hereby agree to amend the Credit Agreement
as set forth herein.
NOW, THEREFORE, in consideration of the foregoing, and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
ARTICLE I. Amendment. Subject to the satisfaction of the conditions set forth in
Section Two hereof, the definition of "Fixed Charge Coverage Ratio" in Section
1.1 of the Credit Agreement is hereby amended and restated in its entirety as
follows:
"FIXED CHARGE COVERAGE RATIO" means the ratio as of the last day of any
Fiscal Quarter of (i) the sum of (x) Consolidated Adjusted EBITDA and (y)
the amount of scheduled rental payments that reduced Consolidated Net
Income to the extent it also reduced Consolidated Adjusted EBITDA, in each
case for the four-Fiscal Quarter period then ending, to (ii) Consolidated
Fixed Charges for such four-Fiscal Quarter period.
ARTICLE II. Conditions to Effectiveness. This Amendment shall become effective
as of the date first above written when, and only when, Administrative Agent
shall have received counterparts of this Amendment executed by the Company and
the Requisite Lenders. The effectiveness of this Amendment (other than Sections
Five, Six and Seven hereof) is conditioned upon the accuracy of the
representations and warranties set forth in Section Three hereof.
ARTICLE III. Representations and Warranties; Covenants. In order to induce the
Lenders to enter into this Amendment, the Company represents and warrants to
each of the Lenders and the Agents that after giving effect to this Amendment,
(x) no Event of Default or Default has occurred and is continuing; and (y) the
representations and warranties contained in the Credit Agreement and in the
other Credit Documents are true and correct in all material respects (and any
such representations and warranties that contain a materiality or Material
Adverse Effect qualification are true and correct in all respects) on and as of
the date hereof to the same extent as though made on and as of the date hereof,
except to the extent such representations and warranties specifically relate to
an earlier date, in which case such representations and warranties were true and
correct in all material respects on and as of such earlier date.
ARTICLE IV. Reference to and Effect on the Credit Agreement and the Notes. On
and after the effectiveness of this Amendment, each reference in the Credit
Agreement to "this Agreement", "hereunder", "hereof" or words of like import
referring to the Credit Agreement, and each reference in the Notes and each of
the other Credit Documents to "the Credit Agreement", "thereunder", "thereof" or
words of like import referring to the Credit Agreement, shall mean and be a
reference to the Credit Agreement, as amended by this Amendment. The Credit
Agreement, the Notes and each of the other Credit Documents, as specifically
amended by this Amendment, are and shall continue to be in full force and effect
and are hereby in all respects ratified and confirmed. Without limiting the
generality of the foregoing, the Collateral Documents and all of the Collateral
described therein do and shall continue to secure the payment of all Obligations
of the Credit Parties under the Credit Documents. The execution, delivery and
effectiveness of this Amendment shall not, except as expressly provided herein,
operate as an amendment or waiver of any right, power or remedy of any Lender or
any Agent under any of the Credit Documents, nor constitute an amendment or
waiver of any provision of any of the Credit Documents. Each Guarantor ratifies
and confirms its Guaranty as in full force and effect after giving effect to the
Amendment herein set forth.
ARTICLE V. Costs, Expenses and Taxes. Company agrees to pay all reasonable costs
and expenses of the Agents in connection with the preparation, execution and
delivery of this Amendment and the other instruments and documents to be
delivered hereunder, if any (including, without limitation, the reasonable fees
and expenses of Cahill Gordon & Reindel LLP) in accordance with the terms of
Section 10.2 of the Credit Agreement.
ARTICLE VI. Execution in Counterparts. This Amendment may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute but one and the same agreement. Delivery
of an executed counterpart of a signature page to this Amendment by facsimile
shall be effective as delivery of a manually executed counterpart of this
Amendment.
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ARTICLE VII. Governing Law. This Amendment shall be governed by, and construed
in accordance with, the laws of the State of New York, without regard to the
principles of conflicts of laws thereof to the extent that the application of
the laws of another jurisdiction would be required thereby.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered as of the day and year first above written.
MAAX CORPORATION
By: /s/ Denis Aubin
------------------------------
Name: Denis Aubin
Title: Executive Vice President & CFO
ROYAL BANK OF CANADA,
as a Lender
By: /s/ Rod Smith
------------------------------------
Name: Rod Smith
Title: Authorized Signatory
If second signature is necessary:
By: /s/ John M. Crantor
------------------------------------
Name: John M. Crantor
Title: Attorney-in-Fact
GOLDMAN SACHS CANADA CREDIT
PARTNERS CO.,
as a Lender
By: /s/ Pedro Ramirez
------------------------------
Name: Pedro Ramirez
Title: Authorized Signatory
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MERRILL LYNCH CAPITAL CANADA INC.,
as a Lender
By: /s/ Marcolo Cosma
------------------------------
Name: Marcolo Cosma
Title: Vice President
NATIONAL BANK OF CANADA,
as a Lender
By: /s/ Andre Marenger
------------------------------------
Name: Andre Marenger
Title: Director
By: /s/ Gilles Morin
------------------------------
Name: Gilles Morin
Title: Managing Director
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BANK OF MONTREAL, CHICAGO BRANCH,
as a Lender
By: /s/ Bruce A. Pietka
------------------------------------
Name: Bruce A. Pietka
Title: Vice President
LA CAISSE CENTRALE DESJARDINS DU QUEBEC,
as a Lender
By: /s/ Michel Voyer
------------------------------
Name: Michel Voyer
Title: Senior Manager
By: /s/ Sylvain Gascon
------------------------------------
Name: Sylvain Gascon
Title: Vice President
CITIBANK, N.A., CANADIAN BRANCH,
as a Lender
By: /s/ Isabelle Cote
------------------------------
Name: Isabelle Cote
Title:
COMERICA BANK, CANADA BRANCH,
as a Lender
By: /s/ Robert Rosen
------------------------------
Name: Robert Rosen
Title: Vice-President
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NATIONAL CITY BANK, CANADA BRANCH,
as a Lender
By: /s/ J. Andrew Riddell
------------------------------------
Name: J. Andrew Riddell
Title: Vice President
GE CANADA FINANCE HOLDING COMPANY,
as a Lender
By: /s/ Ellis Gaston
------------------------------
Name: Ellis Gaston
Title: Duly Authorized Signatory
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By: NEMEAN CLO, LTD.,
ING Capital Advisors LLC,
as Investment Manager
By: /s/ Steven Gorski
------------------------------
Name: Steven Gorski
Title: Director
SEQUILS-ING I (HBDGM), LTD.,
By: ING Capital Advisors LLC,
as Collateral Manager
By: /s/ Steven Gorski
------------------------------
Name: Steven Gorski
Title: Director
ARCHIMEDES FUNDING III, LTD.
By: ING Capital Advisors LLC,
as Collateral Manager
By: /s/ Steven Gorski
------------------------------
Name: Steven Gorski
Title: Director
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ARCHIMEDES FUNDING IV (CAYMAN), LTD.
By: ING Capital Advisors LLC,
as Collateral Manager
By: /s/ Steven Gorski
------------------------------
Name: Steven Gorski
Title: Director
ENDURANCE CLO I, LTD.
By: ING Capital Advisors LLC,
as Portfolio Manager
By: /s/ Steven Gorski
------------------------------
Name: Steven Gorski
Title: Director
ING-ORYX CLO, LTD.
By: ING Capital Advisors LLC,
as Collateral Manager
By: /s/ Steven Gorski
------------------------------
Name: Steven Gorski
Title: Director
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EATON VANCE LIMITED DURATION
INCOME FUND
BY: EATON VANCE MANAGEMENT
AS INVESTMENT ADVISOR,
as a Lender
By: /s/ Michael B. Botthof
------------------------------------
Name: Michael B. Botthof
Title: Vice President
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GRAYSON & CO.
BY: BOSTON MANAGEMENT
AND RESEARCH
AS INVESTMENT ADVISOR,
as a Lender
By: /s/ Michael B. Botthof
------------------------------------
Name: Michael B. Botthof
Title: Vice President
SENIOR DEBT PORTFOLIO
By: Boston Management and Research
as Investment Advisor,
as a Lender
By: /s/ Michael B. Botthof
------------------------------------
Name: Michael B. Botthof
Title: Vice President
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OXFORD STRATEGIC INCOME FUND
BY: EATON VANCE MANAGEMENT
AS INVESTMENT ADVISOR,
as a Lender
By: /s/ Michael B. Botthof
------------------------------------
Name: Michael B. Botthof
Title: Vice President
TOLLI & CO.
BY: EATON VANCE MANAGEMENT
AS INVESTMENT ADVISOR,
as a Lender
By: /s/ Michael B. Botthof
------------------------------------
Name: Michael B. Botthof
Title: Vice President
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EATON VANCE SENIOR
FLOATING-RATE TRUST
BY: EATON VANCE MANAGEMENT
AS INVESTMENT ADVISOR,
as a Lender
By: /s/ Michael B. Botthof
------------------------------------
Name: Michael B. Botthof
Title: Vice President
EATON VANCE SENIOR INCOME TRUST
BY: EATON VANCE MANAGEMENT
AS INVESTMENT ADVISOR,
as a Lender
By: /s/ Michael B. Botthof
------------------------------------
Name: Michael B. Botthof
Title: Vice President
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EATON VANCE INSTITUTIONAL
SENIOR LOAN FUND
BY: EATON VANCE MANAGEMENT
AS INVESTMENT ADVISOR,
as a Lender
By: /s/ Michael B. Botthof
------------------------------------
Name: Michael B. Botthof
Title: Vice President
OCTAGON INVESTMENT PARTNERS III, LTD.
By: Octagon Credit Investors, LLC,
as Portfolio Manager,
as a Lender
By: /s/ Michael B. Nechamkin
------------------------------------
Name: Michael B. Nechamkin
Title: Portfolio Manager
OCTAGON INVESTMENT PARTNERS VII, LTD.
By: Octagon Credit Investors, LLC,
as Collateral Manager,
as a Lender
By: /s/ Michael B. Nechamkin
------------------------------------
Name: Michael B. Nechamkin
Title: Portfolio Manager
UBS AG, STAMFORD BRANCH,
as a Lender
By: /s/ Wilfred V. Smith
------------------------------------
Name: Wilfred V. Smith
Title: Director
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If second signature is necessary:
By: /s/ Barbara Ezell-McMichael
------------------------------------
Name: Barbara Ezell-McMichael
Title: Associate Director
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