AMENDMENT NO. 5 TO CREDIT AGREEMENT

EX-10.1 2 dex101.htm AMENDMENT NO.5 TO THE CREDIT AGREEMENT Amendment No.5 to the Credit Agreement

Exhibit 10.1

Execution Version

This AMENDMENT NO. 5 to the CREDIT AGREEMENT, dated as of September 22, 2009, among DOLLARAMA GROUP L.P., a limited partnership organized under the laws of Quebec, Canada (“Dollarama”), ARIS IMPORT INC., a corporation organized under the Canada Business Corporations Act (“Aris”, and together with Dollarama, the “Borrowers” and each, a “Borrower”), DOLLARAMA HOLDINGS L.P., a limited partnership organized under the laws of Quebec, Canada (“Holdings”), the Lenders (as defined below) party hereto and the Administrative Agent (as defined below), amends certain provisions of the Credit Agreement dated as of November 18, 2004 (as amended by Amendment No. 1, dated as of December 20, 2004, by Amendment No. 2, dated as of August 12, 2005, by Amendment No. 3, dated as of May 25, 2006 and by Amendment No. 4, dated as of June 15, 2007, as further amended, supplemented or otherwise modified, the “Credit Agreement”), among each Borrower, Holdings, each lender from time to time party thereto (collectively, the “Lenders” and individually, a “Lender”), ROYAL BANK OF CANADA, as Administrative Agent, CITIBANK CANADA, as Syndication Agent, THE BANK OF NOVA SCOTIA and JPMORGAN CHASE BANK, N.A. as Co-Documentation Agents, CITIGROUP GLOBAL MARKETS INC., as Joint Lead Arranger and Joint Book-Running Manager, RBC Capital Markets, as Joint Lead Arranger and Joint Book-Running Manager for the Term A Facility and Revolving Credit Facility and J.P. MORGAN SECURITIES INC., as Joint Lead Arranger and Joint Book-Running Manager for the Term B Facility.

PRELIMINARY STATEMENTS

Capitalized terms defined in the Credit Agreement and not otherwise defined in this Amendment are used herein as therein defined.

Pursuant to Section 10.01 (Amendments, Etc.) of the Credit Agreement, the Borrowers have requested that the Administrative Agent and the Required Lenders consent to the amendments to the Credit Agreement set forth herein.

The parties hereto agree to amend the Credit Agreement on the terms and subject to the conditions set forth in this Amendment as follows:

SECTION 1. Amendments. Subject to the satisfaction of the conditions precedent set forth in Section 2 hereof, the Credit Agreement is hereby amended as follows:

(a) Section 1.01 (Defined Terms) of the Credit Agreement is hereby amended:

(i) by inserting the following definitions among the existing definitions set forth in such section in alphabetical order:

“Additional Revolving Commitments” has the meaning specified in Section 2.14.

“Incremental Revolving Commitment Lender” has the meaning specified in Section 2.14.

“Incremental Revolving Commitments” has the meaning specified in Section 2.14.

“Incremental Revolving Credit Facility” means, at any time, the aggregate amount of the Incremental Revolving Commitment Lenders’ Incremental Revolving Commitments and Incremental Revolving Loans and participations in Letters of Credit and Swing Line Loans with respect thereto at such time.

“Incremental Revolving Loan” means any loan made by any lender pursuant to an Incremental Revolving Commitment.

(b) Section 2.14 (Incremental Credit Extensions) of the Credit Agreement is hereby amended and restated in its entirety as follows:

Section 2.14 Incremental Credit Extensions. The Borrowers may at any time or from time to time after the Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request, in the case of Dollarama (a) one or more additional tranches of U.S. Dollar denominated term loans (the “Incremental U.S. Dollar Term Loans”), (b) one or more additional tranches of Canadian Dollar denominated term loans (the “Incremental Canadian Dollar Term Loans”, and together with any Incremental U.S. Dollar Term Loans, the “Incremental Term Loans”) or in the case of any Borrower, (c) one or more increases in the amount of Revolving Credit Commitments relating to Canadian Dollar denominated loans to be made available to the Borrowers (the “Revolving Commitment Increase”), or (d) one or more additional tranches of revolving credit commitments relating to Canadian Dollar denominated loans to be made available to the Borrowers (the “Incremental Revolving Commitments” and together with any Revolving Commitment Increase, the “Additional Revolving Commitments”), provided that (i) both at the time of any such request and upon the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall exist, (ii) at the time that any such Incremental Term Loan is made (and after giving effect thereto) no Default or Event of Default shall exist and the applicable Borrower shall be in compliance with each of the covenants set forth in Section 7.11 determined on a Pro Forma Basis as of the last day of the most recently ended fiscal quarter of such Borrower as if such Incremental Term Loans had been outstanding on the last day of such fiscal quarter of such Borrower for testing compliance therewith and (iii) immediately prior to (or concurrently with) the time that any Incremental Revolving Commitments are made, no Revolving Credit Loans shall be outstanding and all Revolving Credit Commitments shall have been permanently terminated. Each tranche of Incremental Term Loans and each Additional Revolving Commitment shall be in an aggregate principal amount that is not less than CA$25,000,000 (or the U.S. Dollar equivalent thereof as determined by the Agents) (provided that (i) with respect to any Incremental Revolving Commitment or any tranche of Incremental Term Loans that will not be incorporated into a tranche of existing Term Loans, such amount may not be less than CA$50,000,000 (or the U.S. Dollar equivalent thereof as determined by the Agents) and (ii) such amount may be less than CA$25,000,000 (or the U.S. Dollar equivalent thereof as determined by the Agents) if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Term Loans and Revolving Commitment Increases shall not together exceed CA$150,000,000 (or the U.S. Dollar equivalent thereof as determined by the Agents) and the aggregate amount of Incremental Revolving Commitments shall not exceed the amount of Revolving Commitments in effect immediately prior to the effectiveness of the Incremental Amendment with respect thereto. The Incremental Term Loans (a) shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans, (b) shall not mature earlier than the Maturity Date with respect to, in the case of any Incremental Canadian Dollar Term Loans, the Term A Facility and with respect to any Incremental U.S. Dollar Term Loans, the Term B Facility (but may have nominal amortization prior to such date), (c) except as set forth above, shall be treated substantially the same as (and in any event no more favorably than) the Term A Loans or Term B Loans, as applicable (in each case, including with

respect to mandatory and voluntary prepayments, covenants, guarantees and collateral), provided that (i) the terms and conditions applicable to Incremental Term Loans maturing after the Maturity Date with respect to the Term A Facility or Term B Facility, as applicable, may provide for material additional or different financial or other covenants or prepayment requirements applicable only during periods after the Maturity Date with respect to the Term A Facility or Term B Facility, as applicable and (ii) the Incremental Term Loans may be priced differently than the Term Loans; provided further that (i) if the Applicable Rate (which, for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Incremental Term Loans) relating to any Incremental Term Loans exceeds the Applicable Rate (which, for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing the Term Loans) relating to the Term Loans immediately prior to the effectiveness of the applicable Incremental Amendment by more than 0.50%, the Applicable Rate relating to the Term Loans shall be adjusted to be equal to the Applicable Rate (which, for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Incremental Term Loans) relating to such Incremental Term Loans minus 0.50%. The Incremental Revolving Credit Facility (a) shall rank pari passu in right of payment and of security with the Term Loans, (b) shall not mature earlier than the Maturity Date with respect to the Revolving Credit Facility and (c) except as set forth above and as set forth below, shall be treated substantially the same as (and in any event no more favorably than) the Revolving Credit Facility (including with respect to mandatory and voluntary prepayments, covenants, guarantees and collateral, but excluding with respect to the Applicable Rate); provided that if the Applicable Rate relating to the Incremental Revolving Credit Facility (other than relating to the Revolving Credit Commitment Fees) exceeds the Applicable Rate relating to the Revolving Credit Facility (other than relating to the Revolving Credit Commitment Fees) immediately prior to the effectiveness of the applicable Incremental Amendment by more than 0.50%, the Applicable Rate relating to the Term Loans shall be increased by the number of basis points equal to such excess above 0.50%. Each notice from Dollarama pursuant to this Section shall set forth, as applicable, the requested amount and proposed terms of the relevant Incremental Term Loans or Additional Revolving Commitments. Incremental Term Loans and Additional Revolving Commitments may be made by any existing Lender (and each existing Term Lender will have the right to make a portion of any Incremental Term Loan on terms permitted in this Section 2.14 and otherwise on terms reasonably acceptable to the Agents); provided that the Agents shall have consented (not to be unreasonably withheld) to such Lender’s making such Incremental Term Loans if such consent would be required under Section 10.07(a) for an assignment of Loans to such Lender and provided, further that Additional Revolving Commitments and Incremental Canadian Dollar Term Loans shall not be held by any Foreign Lender without the consent of Dollarama. Each existing Lender shall, by notice to the applicable Borrower and the Agents given not later than 10 days after the date of the Agents’ notice delivered pursuant to the first sentence of this paragraph, either agree to make a portion of any Incremental Term Loan or provide a portion of any Additional Revolving Commitments, or decline to do so (and any existing Lender that does not deliver such notice within such period of 10 days shall be deemed to have declined to do so). In the event that, on the 10th day after the Administrative Agent shall have delivered the notice pursuant to the first sentence of this paragraph, the existing Lenders shall have agreed pursuant to the preceding sentence to make Incremental Term Loans or to provide Additional Revolving Commitments, as applicable, in an aggregate amount less than the amount requested by the applicable Borrower, the Incremental Term Loans may be made, and any Additional Revolving Commitments may be provided, by any other bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”), provided that the Administrative Agent shall have consented (not to be unreasonably withheld) to such Additional Lender’s making such Incremental Term Loans if such consent would be required under Section 10.07(a) for an assignment of Loans to such Additional

Lender and provided, further that Additional Revolving Commitments and Incremental Canadian Dollar Term Loans shall not be held by any Foreign Lender without the consent of Dollarama. Commitments in respect of Incremental Term Loans and Additional Revolving Commitments shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by Holdings, the applicable Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Agents. The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Agents, to effect the provisions of this Section. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the Closing Date of such Incremental Amendment) and such other conditions as the parties thereto shall agree. Subject to the minimum principal amount requirements specified above in this Section 2.14, no more than eight Incremental Facility Closing Dates may be selected by the Borrowers. No Borrower will use the proceeds of the Incremental Term Loans and Additional Revolving Commitments for any purpose prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Additional Revolving Commitments unless it so agrees. Upon each increase in the Revolving Credit Commitments pursuant to this Section, (a) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Revolving Commitment Increase (each a “Revolving Commitment Increase Lender”) in respect of such increase, and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Revolving Credit Lender (including each such Revolving Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and (b) if, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayments shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurring by any Lender in accordance with Section 3.05. The Agents and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. Upon any Incremental Revolving Commitments being provided pursuant to this Section, the participations of each Revolving Credit Lender in outstanding Letters of Credit and Swing Line Loans immediately prior to such increase will automatically be terminated and each Lender providing a portion of the Incremental Revolving Commitment (each an “Incremental Revolving Commitment Lender”), will automatically acquire participations hereunder in outstanding Letters of Credit and Swing Line Loans such that the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Incremental Revolving Commitment Lender will equal the percentage of the aggregate Incremental Revolving Commitments of all Incremental Revolving Commitment Lenders represented by such Incremental Revolving Credit Lender’s Revolving Credit Commitment. This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.

SECTION 2. Conditions to Effectiveness. This Amendment shall become effective on the date when each of the following conditions precedent have first been satisfied (the “Effective Date”):

(a) the Administrative Agent shall have received counterparts of this Amendment executed by each Borrower, Holdings and the Required Lenders or, as to any of the Lenders, evidence satisfactory to the Administrative Agent that such Lender has executed this Amendment;

(b) the Administrative Agent shall have received from each Guarantor its duly executed and delivered consent to this Amendment in the form attached hereto;

(c) all fees and expenses payable in connection with this Amendment, including the Amendment Fee (defined below) or otherwise required to be paid pursuant to the Credit Agreement shall have been paid in full; and

(d) the representations and warranties set forth in Section 6 hereof shall be true and correct as of the date hereof.

Furthermore this Amendment is subject to the provisions of Section 10.01 of the Credit Agreement.

SECTION 3. Amendment Fee. Each Lender which shall have duly executed and delivered to the Administrative Agent this Amendment on or prior to 5:00 p.m. (New York City time) on September 18, 2009 (or such later time as Dollarama and the Administrative Agent may agree) shall be paid by Dollarama on the Effective Date a fee (the “Amendment Fee”) equal to 0.15% multiplied by the sum of the aggregate principal amount of Term Loans and Revolving Credit Commitments (whether drawn or undrawn) of such Lender as of the date hereof and as set forth on the Register maintained by the Administrative Agent.

SECTION 4. Construction with the Loan Documents.

(a) On and after this Amendment becoming effective in accordance with Section 2, each reference in the Credit Agreement to “this Agreement,” “hereunder,” “hereof,” “herein,” or words of like import, and each reference in the other Loan Documents to the Credit Agreement, shall mean and be a reference to the Credit Agreement as amended hereby, and this Amendment and the Credit Agreement shall be read together and construed as a single instrument. The table of contents, signature pages and list of Exhibits and Schedules of the Credit Agreement shall be deemed modified to reflect the changes made by this Amendment.

(b) Except as expressly amended hereby, all of the terms and provisions of the Credit Agreement and all other Loan Documents are and shall remain in full force and effect and are hereby ratified and confirmed, including the respective guarantees and security interests granted pursuant to the respective Loan Documents.

(c) The execution, delivery and effectiveness of this Amendment shall not, except as expressly provided herein, operate as a waiver of any right, power or remedy of the Lenders, the L/C Issuers, the Arrangers or the Agents under any of the Loan Documents, nor constitute a waiver or amendment of any provision of any of the Loan Documents or for any purpose except as expressly set forth herein.

(d) This Amendment is a Loan Document.

(e) This Amendment shall not extinguish, discharge or release the Lien or priority of any Loan Document or any other security therefor or any guarantee thereof. The Credit Agreement and each of the other Loan Documents (as defined in the Credit Agreement) and the Obligations thereunder shall not be novated and shall remain in full force and effect, except as modified hereby or thereby in connection herewith or therewith. The Administrative Agent, for itself and on behalf of the other Secured Parties and as fondé de pouvoir, hereby expressly reserves all the security interests and Liens constituted by the Hypothecs and each other Collateral Document, including, as applicable, in accordance with Article 1662 of the Civil Code of Quebec.

SECTION 5. Governing Law. This Amendment is governed by, and shall be construed in accordance with, the law of the State of New York.

SECTION 6. Representations And Warranties. Each of Dollarama and Holdings hereby represents and warrants that each of the representations and warranties made by it in the Credit Agreement, as amended hereby, and the other Loan Documents to which it respectively is a party or by which it is bound, shall be true and correct in all material respects on and as of the date hereof (other than representations and warranties in any such Loan Document which expressly speak as of a specific date, which shall have been true and correct in all material respects as of such specific date) and no Default or Event of Default has occurred and is continuing as of the date hereof.

SECTION 7. Execution in Counterparts. This Amendment may be executed in any number of counterparts and by different parties in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Signature pages may be detached from multiple separate counterparts and attached to a single counterpart so that all signature pages are attached to the same document. Delivery of an executed counterpart by telecopy or by pdf electronic transmission shall be effective as delivery of a manually executed counterpart of this Amendment.

[SIGNATURE PAGES FOLLOW]

IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their respective officers thereunto duly authorized, as of the date first above written.


DOLLARAMA GROUP L.P.,
herein acting and represented by:
DOLLARAMA GROUP GP INC., its general partner,
		as Borrower

By:		/s/ Nicholas Nomicos
Name:		Nicholas Nomicos
Title:		Interim Chief Financial Officer

ARIS IMPORT INC.,
		as Borrower

By:		/s/ Nicholas Nomicos
Name:		Nicholas Nomicos
Title:		Interim Chief Financial Officer

DOLLARAMA HOLDINGS L.P., herein acting and represented by:
DOLLARAMA HOLDINGS GP INC., its general partner,
		as Holdings

By:		/s/ Nicholas Nomicos
Name:		Nicholas Nomicos
Title:		Interim Chief Financial Officer