EXHIBIT 10.1
AMENDMENT NO. 5
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AMENDMENT NO. 5 (this "Amendment"), dated as of November 14, 2005, to
that certain Credit and Guaranty Agreement, dated as of June 4, 2004, as amended
(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 thereto from time to time, XXXXXXX XXXXX 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 XXXXXXX XXXXX & CO., XXXXXXX LYNCH,
PIERCE, XXXXXX & XXXXX 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 to modify
certain financial and reporting covenants; and
WHEREAS, pursuant to Section 10.5 of the Credit Agreement Company and
Administrative Agent 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:
SECTION ONE - Amendments. Subject to the satisfaction of the conditions
set forth in Section Two hereof:
(i) The definitions of Applicable Margin and Applicable Revolving
Commitment Fee Percentage in Section 1.1 of the Credit Agreement are hereby
amended and restated in their entirety to read:
"Applicable Margin" and "Applicable Revolving Commitment Fee
Percentage" mean (i) with respect to all Loans that are Eurodollar Rate Loans,
Canadian Eurodollar Rate Loans or BA Discount Rate Loans and the Applicable
Revolving Commitment Fee Percentage, (a) from the Closing Date until the date of
delivery of the Compliance Certificate and the financial statements for the
second fiscal quarter commencing after the Closing Date, a percentage, per
annum, determined by reference to the following table as if the Leverage Ratio
then in effect were in excess of 4.50:1.00; and (b) thereafter, a percentage,
per annum, determined by reference to the Leverage Ratio in effect from time to
time as set forth below:
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Applicable Margin Applicable Applicable
for Tranche A Term Margin for Revolving
Leverage Loans and Tranche B Term Commitment
Ratio Revolving Loans Loans Fee Percentage
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> 5.25:1.00 2.50% 3.00% 0.50%
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< 5.25:1.00 2.50% 2.75% 0.50%
-
> 4.50:1.00
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< 4.50:1.00 2.25% 2.75% 0.50%
-
> 3.50:1.00
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< 3.50:1.00 2.00% 2.50% 0.40%
-
> 2.50:1.00
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< 2.50:1.00 1.75% 2.50% 0.35%
-
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and (ii) with respect to Loans that are Base Rate Loans or Prime Rate Loans, an
amount equal to (a) the Applicable Margin for Eurodollar Rate Loans as set forth
in clause (i)(a) or (i)(b) above, as applicable, minus (b) 0.75% per annum;
provided that notwithstanding the foregoing the Applicable Margin for all
Tranche B Term Loans shall be calculated as if the Leverage Ratio in effect were
in excess of 5.25:1.00 from November 14, 2005 until financial statements and a
Compliance Certificate related to a fiscal period ended after November 14, 2005
indicating a Leverage Ratio less than or equal to 5.25:1.00 have been delivered
pursuant to Section 5.1(d). No change in the Applicable Margin or the Applicable
Revolving Commitment Fee Percentage shall be effective until three Business Days
after the date on which Administrative Agent shall have received the applicable
financial statements and a Compliance Certificate pursuant to Section 5.1(d)
calculating the Leverage Ratio. At any time Company has not submitted to
Administrative Agent the financial statements and a Compliance Certificate
calculating the Leverage Ratio as and when required under Section 5.1(d), the
Applicable Margin and the Applicable Revolving Commitment Fee Percentage shall
be determined as if the Leverage Ratio were in excess of 5.25:1.00 until such
financial statements and Compliance Certificate are delivered to Administrative
Agent. Within one Business Day of receipt of the financial statements and
Compliance Certificate calculating the Leverage Ratio under Section 5.1(d),
Administrative Agent shall give each Lender telefacsimile or telephonic notice
(confirmed in writing) of the Applicable Margin and the Applicable Revolving
Commitment Fee Percentage in effect from the day that is three Business Days
after such receipt.
(ii) The definition of Narrative Report in Section 1.1 of the
Credit Agreement is hereby amended and restated in its entirety to read:
"Narrative Report" means, with respect to the financial statements for
which such narrative report is required, a narrative report describing the
operations of MAAX Holdings and its Subsidiaries, in the form prepared for
presentation to senior management thereof for the applicable Fiscal Quarter or
Fiscal Year and for the period from the beginning of the then current Fiscal
Year to the end of such period to which such financial statements relate, along
with a formal reconciliation between the financial statements of MAAX Holdings
and its Subsidiaries and those of Holdings and its Subsidiaries for such
periods.
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(iii) Section 6.8(a) of the Credit Agreement is hereby amended and
restated in its entirety to read:
Interest Coverage Ratio. Company shall not permit the Interest Coverage
Ratio as of the last day of any Fiscal Quarter, beginning with the Fiscal
Quarter ending August 31, 2004, to be less than the ratio indicated below:
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Interest
Fiscal Quarter Ending Coverage
Ratio
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On or prior to February 28, 2006 2.00:1.00
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After February 28, 2006 and 1.85:1.00
on or prior to August 31, 2006
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After August 31, 2006 and on 1.90:1:00
or prior to May 31, 2007
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After May 31, 2007 and on or 2.25:1.00
prior to August 31, 2007
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After August 31, 2007 and on 2.50:1.00
or prior to February 29, 2008
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After February 29, 2008 2.75:1.00
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(iv) Section 6.8(c) of the Credit Agreement is hereby amended and
restated in its entirety to read:
Leverage Ratio. Company shall not permit the Leverage Ratio as of the
last day of any Fiscal Quarter, beginning with the Fiscal Quarter ending August
31, 2004, to exceed the ratio indicated below:
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Fiscal Quarter Ending Leverage Ratio
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On or prior to May 31, 2005 6.00:1.00
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August 31, 2005 6.50:1.00
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November 30, 2005 6.00:1.00
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February 28, 2006 6.00:1.00
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May 31, 2006 6.00:1.00
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August 31, 2006 6.00:1.00
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November 30, 2006 6.00:1.00
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February 28, 2007 5.75:1.00
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May 31, 2007 5.50:1.00
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August 31, 2007 4.75:1.00
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November 30, 2007 4.50:1.00
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February 29, 2008 4.25:1.00
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May 31, 2008 and thereafter 3.75:1.00
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SECTION TWO - Conditions to Effectiveness. This Amendment shall become
effective as of the Closing Date as if entered into on the Closing Date when,
and only when, (i) Administrative Agent shall have received (x) counterparts of
this Amendment executed by Company and Administrative Agent and (y) consents to
this Amendment from the Requisite Lenders and (ii) Company shall have delivered,
by wire transfer of immediately available funds, to Administrative Agent, for
the ratable account of each Lender consenting hereto, a fee equal to (A) in
Canadian Dollars, 0.25% of the aggregate principal amount of Tranche A Term
Loans plus the aggregate amount of Revolving Commitments of such Lenders plus
(B) in U.S. Dollars, 0.125% of the aggregate principal amount of Tranche B Term
Loans of such 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.
SECTION THREE - Representations and Warranties; Covenants. In order to
induce the Lenders to consent to 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.
SECTION FOUR - 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.
SECTION FIVE - 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 Xxxxxx Xxxxxx & Xxxxxxx LLP) in accordance with the terms
of Section 10.2 of the Credit Agreement.
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SECTION SIX - 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.
SECTION SEVEN - 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/ XXXXX XXXXX
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Xxxxx Xxxxx
Chief Financial Officer, Executive
Vice President and Secretary
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ROYAL BANK OF CANADA, as Administrative
Agent
By: /s/ XXXXX XXXXXXXX
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Name: Xxxxx Xxxxxxxx
Title: Manager, Agency
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