EXHIBIT 10.17
AMENDMENT XX. 0
Xxxxxxxxx Xx. 0 (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, 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; 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 Xxxxxx Xxxxxx & Xxxxxxx 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/ Xxxxx Xxxxx
------------------------------
Name: Xxxxx Xxxxx
Title: Executive Vice President & CFO
ROYAL BANK OF CANADA,
as a Lender
By: /s/ Xxx Xxxxx
------------------------------------
Name: Xxx Xxxxx
Title: Authorized Signatory
If second signature is necessary:
By: /s/ Xxxx X. Crantor
------------------------------------
Name: Xxxx X. Crantor
Title: Attorney-in-Fact
XXXXXXX SACHS CANADA CREDIT
PARTNERS CO.,
as a Lender
By: /s/ Xxxxx Xxxxxxx
------------------------------
Name: Xxxxx Xxxxxxx
Title: Authorized Signatory
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XXXXXXX XXXXX XXXXXXX XXXXXX INC.,
as a Lender
By: /s/ Marcolo Cosma
------------------------------
Name: Marcolo Cosma
Title: Vice President
NATIONAL BANK OF CANADA,
as a Lender
By: /s/ Xxxxx Xxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Director
By: /s/ Xxxxxx Xxxxx
------------------------------
Name: Xxxxxx Xxxxx
Title: Managing Director
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BANK OF MONTREAL, CHICAGO BRANCH,
as a Lender
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
XX XXXXXX CENTRALE XXXXXXXXXX DU QUEBEC,
as a Lender
By: /s/ Xxxxxx Xxxxx
------------------------------
Name: Xxxxxx Xxxxx
Title: Senior Manager
By: /s/ Xxxxxxx Xxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
CITIBANK, N.A., CANADIAN BRANCH,
as a Lender
By: /s/ Xxxxxxxx Xxxx
------------------------------
Name: Xxxxxxxx Xxxx
Title:
COMERICA BANK, CANADA BRANCH,
as a Lender
By: /s/ Xxxxxx Xxxxx
------------------------------
Name: Xxxxxx Xxxxx
Title: Vice-President
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XXXXXXXX XXXX XXXX, XXXXXX BRANCH,
as a Lender
By: /s/ J. Xxxxxx Xxxxxxx
------------------------------------
Name: J. Xxxxxx Xxxxxxx
Title: Vice President
GE CANADA FINANCE HOLDING COMPANY,
as a Lender
By: /s/ Xxxxx Xxxxxx
------------------------------
Name: Xxxxx Xxxxxx
Title: Duly Authorized Signatory
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By: NEMEAN CLO, LTD.,
ING Capital Advisors LLC,
as Investment Manager
By: /s/ Xxxxxx Xxxxxx
------------------------------
Name: Xxxxxx Xxxxxx
Title: Director
SEQUILS-ING I (HBDGM), LTD.,
By: ING Capital Advisors LLC,
as Collateral Manager
By: /s/ Xxxxxx Xxxxxx
------------------------------
Name: Xxxxxx Xxxxxx
Title: Director
ARCHIMEDES FUNDING III, LTD.
By: ING Capital Advisors LLC,
as Collateral Manager
By: /s/ Xxxxxx Xxxxxx
------------------------------
Name: Xxxxxx Xxxxxx
Title: Director
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ARCHIMEDES FUNDING IV (CAYMAN), LTD.
By: ING Capital Advisors LLC,
as Collateral Manager
By: /s/ Xxxxxx Xxxxxx
------------------------------
Name: Xxxxxx Xxxxxx
Title: Director
ENDURANCE CLO I, LTD.
By: ING Capital Advisors LLC,
as Portfolio Manager
By: /s/ Xxxxxx Xxxxxx
------------------------------
Name: Xxxxxx Xxxxxx
Title: Director
ING-ORYX CLO, LTD.
By: ING Capital Advisors LLC,
as Collateral Manager
By: /s/ Xxxxxx Xxxxxx
------------------------------
Name: Xxxxxx Xxxxxx
Title: Director
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XXXXX XXXXX LIMITED DURATION
INCOME FUND
BY: XXXXX XXXXX MANAGEMENT
AS INVESTMENT ADVISOR,
as a Lender
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
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XXXXXXX & CO.
BY: BOSTON MANAGEMENT
AND RESEARCH
AS INVESTMENT ADVISOR,
as a Lender
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
SENIOR DEBT PORTFOLIO
By: Boston Management and Research
as Investment Advisor,
as a Lender
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
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XXXXXX XXXXXXXXX INCOME FUND
BY: XXXXX XXXXX MANAGEMENT
AS INVESTMENT ADVISOR,
as a Lender
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
TOLLI & CO.
BY: XXXXX XXXXX MANAGEMENT
AS INVESTMENT ADVISOR,
as a Lender
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
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XXXXX XXXXX SENIOR
FLOATING-RATE TRUST
BY: XXXXX XXXXX MANAGEMENT
AS INVESTMENT ADVISOR,
as a Lender
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
XXXXX XXXXX SENIOR INCOME TRUST
BY: XXXXX XXXXX MANAGEMENT
AS INVESTMENT ADVISOR,
as a Lender
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
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XXXXX XXXXX INSTITUTIONAL
SENIOR LOAN FUND
BY: XXXXX XXXXX MANAGEMENT
AS INVESTMENT ADVISOR,
as a Lender
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
OCTAGON INVESTMENT PARTNERS III, LTD.
By: Octagon Credit Investors, LLC,
as Portfolio Manager,
as a Lender
By: /s/ Xxxxxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Portfolio Manager
OCTAGON INVESTMENT PARTNERS VII, LTD.
By: Octagon Credit Investors, LLC,
as Collateral Manager,
as a Lender
By: /s/ Xxxxxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Portfolio Manager
UBS AG, STAMFORD BRANCH,
as a Lender
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Director
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If second signature is necessary:
By: /s/ Xxxxxxx Xxxxx-XxXxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxx-XxXxxxxxx
Title: Associate Director
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