EX-10.17 2 y99327a1exv10w17.txt AMENDMENT NO. 1 TO THE CREDIT AND GUARANTY AGREEMENT 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 : - - - - - - - - - - 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. -2- 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] -3- 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 -4- 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 -5- 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 -6- 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 -7- 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 -8- 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 -9- 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 -10- 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 -11- 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 -12- 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 -13- 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 -14- If second signature is necessary: By: /s/ Barbara Ezell-McMichael ------------------------------------ Name: Barbara Ezell-McMichael Title: Associate Director -15-