Exhibit 10.2
FIRST AMENDMENT
FIRST AMENDMENT (this "Amendment"), dated as of June 13, 2003, among
XXXXX HOLDINGS U.S.A. INC., a Delaware corporation (the "Borrower"), XXXXX
XXXXXXX INCORPORATED (f/k/a Xxxxx Corporation Limited), a corporation
incorporated under the Canada Business Corporations Act (the "Canadian Parent"),
the lenders party to the Credit Agreement referred to below (the "Lenders"), and
CITICORP NORTH AMERICA, INC., as Administrative Agent (in such capacity, the
"Administrative Agent"). All capitalized terms used herein and not otherwise
defined herein shall have the respective meanings provided such terms in the
Credit Agreement referred to below.
W I T N E S S E T H :
WHEREAS, the Borrower, the Canadian Parent, the Lenders, the
Co-Documentation Agents, the Administrative Agent and the Syndication Agent are
parties to a Credit Agreement, dated as of March 14, 2003 (as amended, modified,
restated and/or supplemented to, but not including, the date hereof, the "Credit
Agreement"); and
WHEREAS, the Borrower has requested, and the Lenders have agreed to,
the amendments to the Credit Agreement as provided herein on the terms and
conditions set forth herein;
NOW, THEREFORE, it is agreed:
1. Section 8.01(d) of the Credit Agreement is hereby amended by (a)
deleting the words "Credit Parties" appearing in clause (i) thereof and
inserting the words "Canadian Parent and its Subsidiaries" in lieu thereof, (b)
deleting the word "and" appearing at the end of clause (ii) thereof and
inserting a comma in lieu thereof and (c) deleting the period appearing at the
end of clause (iii) thereof and inserting the following new clause (iv) at the
end thereof:
"and (iv) set forth (A) the calculations required to establish
whether the Canadian Parent and its Subsidiaries were in compliance with
the provisions of Section 8.21 at the end of such fiscal quarter or fiscal
year, as the case may be, and (B) a description of each Interest Rate
Protection Agreement maintained by the Canadian Parent and its
Subsidiaries in respect of Balance Sheet Indebtedness at the end of such
fiscal quarter or fiscal year, as the case may be (which description shall
include the notional amount thereof, the principal terms (including the
currency, financial terms and expiration date) related thereto and whether
a Lender (or any affiliate thereof) is a party thereto)."
2. Section 8 of the Credit Agreement is hereby further amended by
inserting the following new Section 8.21 at the end thereof:
"8.21 Fixed Rate Balance Sheet Indebtedness. The Canadian Parent and
its Subsidiaries shall at all times cause the aggregate amount of Balance
Sheet Indebtedness bearing interest at a fixed interest rate (including,
without limitation, the aggregate notional amount all Interest Rate
Protection Agreements which at such time have the
effect of converting Balance Sheet Indebtedness bearing interest at a floating
interest rate to Balance Sheet Indebtedness bearing interest at a fixed interest
rate, but subtracting, in any event, the aggregate notional amount of all
Interest Rate Protection Agreements then in effect which at such time have the
effect of converting Balance Sheet Indebtedness bearing interest at a fixed
interest rate to Balance Sheet Indebtedness bearing interest at a floating
interest rate) to equal or exceed 25% of all Balance Sheet Indebtedness then
outstanding."
3. Section 9.04(vi) of the Credit Agreement is hereby amended by deleting
the words "floating rate" appearing therein.
4. Section 11.01 of the Credit Agreement is hereby amended by inserting
the following new definition in the appropriate alphabetical order:
"Balance Sheet Indebtedness" shall mean, at any time, the aggregate
amount of Indebtedness (including, without limitation, the outstanding
principal amount of all Loans, all Capitalized Lease Obligations and all
purchase money Indebtedness) of the Canadian Parent and its Subsidiaries
(determined on a consolidated basis) that would be reflected on a balance
sheet prepared in accordance with GAAP.
5. Section 13.07(a) of the Credit Agreement is hereby amended by inserting
the text ", 8.21" immediately following the text "Sections 4" appearing in
clause (i) of the proviso thereto.
6. The Credit Agreement is hereby further amended by deleting Exhibit M
thereto and inserting new Exhibit M in the form of Exhibit M attached hereto.
7. This Amendment shall become effective on the date (the "First Amendment
Effective Date") when the Canadian Parent, the Borrower, and the Required
Lenders shall have signed a counterpart hereof (whether the same or different
counterparts) and shall have delivered (including by way of facsimile
transmission) the same to the Administrative Agent at the Notice Office.
8. In order to induce the Lenders to enter into this Amendment, the
Canadian Parent and the Borrower hereby represent and warrant that (i) no
Default or Event of Default exists on the First Amendment Effective Date, both
before and after giving effect to this Amendment and (ii) on the First Amendment
Effective Date, both before and after giving effect to this Amendment, all
representations and warranties contained in the Credit Agreement and in the
other Credit Documents are true and correct in all material respects (it being
understood that any representation or warranty made as of a specific date shall
be true and correct in all material respects as of such specific date).
9. This Amendment may be executed in any number of counterparts and by the
different parties hereto on separate counterparts, each of which counterparts
when executed and delivered shall be an original, but all of which shall
together constitute one and the same instrument. A complete set of counterparts
shall be delivered to the Borrower and the Administrative Agent.
-2-
10. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF
NEW YORK.
11. From and after the First Amendment Effective Date, all references in
the Credit Agreement and each of the other Credit Documents to the Credit
Agreement shall be deemed to be references to the Credit Agreement as modified
hereby. This Amendment shall constitute a Credit Document for all purposes under
the Credit Agreement and the other Credit Documents.
12. This Amendment is limited as specified and shall not constitute a
modification, acceptance or amendment of any other provision of the Credit
Agreement or any other Credit Document.
* * *
-3-
IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Amendment to be duly executed and delivered as of the date
first above written.
XXXXX HOLDINGS U.S.A INC.
By:/s/ Xxxx X. Xxxxxx
------------------------------
Name: Xxxx X. Xxxxxx
Title:Senior Vice President, Treasurer
XXXXX XXXXXXX INCORPORATED
By:/s/ Xxxx X. Xxxxxx
------------------------------
Name: Xxxx X. Xxxxxx
Title:Senior Vice President, Treasurer
CITICORP NORTH AMERICA, INC.,
Individually and as Administrative
Agent
By:/s/ Xxxxxx Xxxx
------------------------------
Name: Xxxxxx Xxxx
Title: Vice President
SIGNATURE PAGE TO THE FIRST AMENDMENT,
DATED AS OF JUNE 13, 2003, TO THE
CREDIT AGREEMENT, DATED AS OF MARCH
14, 0000, XXXXX XXXXX XXXXXXXX X.X.X.
INC., A DELAWARE CORPORATION, XXXXX
XXXXXXX INCORPORATED (F/K/A XXXXX
CORPORATION LIMITED), A CORPORATION
INCORPORATED UNDER THE CANADA BUSINESS
CORPORATIONS ACT, THE VARIOUS LENDERS
PARTY THERETO, BANK ONE, NA, FLEET
NATIONAL BANK AND THE BANK OF NOVA
SCOTIA, AS CO-DOCUMENTATION AGENTS,
CITICORP NORTH AMERICA, INC., AS
ADMINISTRATIVE AGENT, AND DEUTSCHE
BANK SECURITIES INC., AS SYNDICATION
AGENT
NAME OF INSTITUTION:
Deutsche Bank, Cayman Islands Branch
-----------------------------------------
By: /s/ Xxxxx XxXxxxx
-----------------------------------
Name: Xxxxx XxXxxxx
Title: Director
NAME OF INSTITUTION:
Blue Square Funding Series 3
Deutsche Bank Trust Co. America
FKA Bankers Trust Co.
-----------------------------------------
By: /s/ Xxxxxxx Xxxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
NAME OF INSTITUTION:
Bank One, NA
-----------------------------------------
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Director
NAME OF INSTITUTION:
American Express Certificate Company
By: American Express Asset Management
Group, Inc. as Collateral Manager
-----------------------------------------
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Managing Director
NAME OF INSTITUTION:
APEX (IDM) CDO I. LTD
-----------------------------------------
By: Xxxxx X. Xxxxxx & Company Inc. as
Collateral Manager
By: /s/
-----------------------------------
Name: Xxxx Xxxxxxxxx
Title: Managing Director
-2-
NAME OF INSTITUTION:
BABSON CLO LTD. 2003-I
-------------------------------
By: Xxxxx X. Xxxxxx & Company Inc. as
Manager
By: /s/ Xxxx Xxxxxxxxx
-----------------------------------
Name: Xxxx Xxxxxxxxx
Title: Managing Director
NAME OF INSTITUTION:
Bank of Ireland
-----------------------------------------
By: /s/ X. Xxxxxx
-----------------------------------
Name: X. Xxxxxx
Title: Authorized Signatory
By: /s/ M Xxxxx
-----------------------------------
Name: X. Xxxxx
Title: Authorized Signatory
NAME OF INSTITUTION:
XXXX & XXXXXXX XXXXX FOUNDATION
-----------------------------------------
By: Xxxxx X. Xxxxxx & Company Inc. as
Investment Adviser
By: /s/ Xxxx Xxxxxxxxx
-----------------------------------
Name: Xxxx Xxxxxxxxx
Title: Managing Director
-3-
NAME OF INSTITUTION:
BNP Paribas (New York)
-----------------------------------------
By: /s/ Xxxxx Xxx
-----------------------------------
Name:Xxxxx Xxx
Title: Deputy Head
By: /s/ Xxxxxxxxxxx Xxxxxx
-----------------------------------
Name: Xxxxxxxxxxx Xxxxxx
Title: Associate
NAME OF INSTITUTION:
Sankaty Advisors, LLC as Collateral
Manager for Castle Hill I - INGOTS,
Ltd., as Term Lender
-----------------------------------------
By: /s/ Xxxxx X.Xxxxx
-----------------------------------
Name: Xxxxx X. Xxxxx
Title: Managing Director
Portfolio Manager
NAME OF INSTITUTION:
Sankaty Advisors, LLC as Collateral
Manager for Castle Hill II - INGOTS,
Ltd., as Term Lender
-----------------------------------------
By: /s/ Xxxxx X. Xxxxx
-----------------------------------
Name: Xxxxx X. Xxxxx
Title: Managing Director
Portfolio Manager
-4-
NAME OF INSTITUTION:
Centurian CDO II, Ltd.
-----------------------------------------
By: American Express Asset Management
Group, Inc. as Collateral Manager
By: /s/ Xxxxxx Xxxxxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Director - Operations
NAME OF INSTITUTION:
Centurian CDO VI, Ltd.
-----------------------------------------
By: American Express Asset Management
Group, Inc. as Collateral Manager
By: /s/ Xxxxxx Xxxxxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Director - Operations
NAME OF INSTITUTION:
CIBC Inc., as a Lender
-----------------------------------------
By: /s/ Xxxxxx Xxxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxxx
Title: Executive Director
NAME OF INSTITUTION:
Citibank, N.A.
-----------------------------------------
By: /s/ Xxxxx Xxxxxx
-----------------------------------
Name: Xxxxx Xxxxxx
Title: Director
-5-
NAME OF INSTITUTION:
CONSTANTINUS XXXXX XXXXX CDO V, LTD.
-----------------------------------------
By: Xxxxx Xxxxx Management as
Investment Advisor
By: /s/ Xxxxx X. Page
-----------------------------------
Name: Xxxxx X. Page
Title: Vice President
NAME OF INSTITUTION:
Denali Capital LLC, managing member of
DC Funding Partners, portfolio manager
for DENALI CAPITAL CLO II, LTD., or an
affiliate
-----------------------------------------
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chief Credit Officer
NAME OF INSTITUTION:
XXXXX XXXXX CDO III, LTD.
-----------------------------------------
By: Xxxxx Xxxxx Management as
Investment Advisor
By: /s/ Xxxxx X. Page
-----------------------------------
Name: Xxxxx X. Page
Title: Vice President
-6-
NAME OF INSTITUTION:
XXXXX XXXXX CDO IV, LTD.
-----------------------------------------
By: Xxxxx Xxxxx Management as
Investment Advisor
By: /s/ Xxxxx X. Page
-----------------------------------
Name: Xxxxx X. Page
Title: Vice President
NAME OF INSTITUTION:
XXXXX XXXXX INSTITUTIONAL SENIOR LOAN
FUND
-----------------------------------------
By: Xxxxx Xxxxx Management as
Investment Advisor
By: /s/ Xxxxx X. Page
-----------------------------------
Name: Xxxxx X. Page
Title: Vice President
NAME OF INSTITUTION:
XXXXX XXXXX SENIOR INCOME
-
TRUST
-----------------------------------------
By: Xxxxx Xxxxx Management as
Investment Advisor
By: /s/ Xxxxx X. Page
-----------------------------------
Name: Xxxxx X. Page
Title: Vice President
-7-
NAME OF INSTITUTION:
XXXXX XXXXX VT FLOATING-RATE INCOME
FUND
-----------------------------------------
By: Xxxxx Xxxxx Management as
Investment Advisor
By: /s/ Xxxxx X. Page
-----------------------------------
Name: Xxxxx X. Page
Title: Vice President
NAME OF INSTITUTION:
ELC (CAYMAN)
LTD.
-----------------------------------------
By: Xxxxx X. Xxxxxx & Company Inc. as
Collateral Manager
By: /s/ Xxxx Xxxxxxxxx
-----------------------------------
Name: Xxxx Xxxxxxxxx
Title: Managing Director
NAME OF INSTITUTION:
ELC (CAYMAN) LTD. CDO SERIES 1999-I
-----------------------------------------
By: Xxxxx X. Xxxxxx & Company Inc. as
Collateral Manager
By: /s/ Xxxx Xxxxxxxxx
-----------------------------------
Name: Xxxx Xxxxxxxxx
Title: Managing Director
-8-
NAME OF INSTITUTION:
ELC (CAYMAN) LTD.1999-III
-----------------------------------------
By: Xxxxx X. Xxxxxx & Company Inc. as
Collateral Manager
By: /s/ Xxxx Xxxxxxxxx
-----------------------------------
Name: Xxxx Xxxxxxxxx
Title: Managing Director
NAME OF INSTITUTION:
ELC (CAYMAN) LTD.2000-I
-----------------------------------------
By: Xxxxx X. Xxxxxx & Company Inc. as
Collateral Manager
By: /s/ Xxxx Xxxxxxxxx
-----------------------------------
Name: Xxxx Xxxxxxxxx
Title: Managing Director
NAME OF INSTITUTION:
FRANKLIN CLO II, Ltd.
-----------------------------------------
By: /s/ Xxxxxxx Xxx
-----------------------------------
Name: Xxxxxxx Xxx
Title: Vice President
NAME OF INSTITUTION:
FRANKLIN CLO III, Ltd.
-----------------------------------------
By: /s/ Xxxxxxx Xxx
-----------------------------------
Name: Xxxxxxx Xxx
Title: Vice President
-9-
NAME OF INSTITUTION:
FRANKLIN CLO IV, Ltd.
-----------------------------------------
By: /s/ Xxxxxxx Xxx
-----------------------------------
Name: Xxxxxxx Xxx
Title: Vice President
NAME OF INSTITUTION:
FRANKLIN FLOATING RATE MASTER
SERIES
-----------------------------------------
By: /s/ Xxxxxxx Xxx
-----------------------------------
Name: Xxxxxxx Xxx
Title: Vice President
NAME OF INSTITUTION:
FRANKLIN FLOATING RATE TRUST
By:/s/ Xxxxxxx Xxx
-----------------------------------
Name: Xxxxxxx Xxx
Title: Vice President
NAME OF INSTITUTION:
Gallatin Funding I Ltd.
-----------------------------------------
By: Bear Xxxxxxx Asset Management Inc.
as its Collateral Manager
By: /s/ Xxxxx Xxxxxxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxxxxx
Title: Associate Director
-10-
NAME OF INSTITUTION:
General Electric Capital Corporation
-----------------------------------------
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Duly Authorized Signatory
NAME OF INSTITUTION:
GLENEAGLES TRADING LLC
-----------------------------------------
By: /s/ Xxx X. Xxxxxx
-----------------------------------
Name: Xxx X. Xxxxxx
Title: Asst. Vice President
NAME OF INSTITUTION:
XXXXXXX & CO
-----------------------------------------
By: Boston Management and Research
as Investment Advisor
By: /s/ Xxxxx X. Page
-----------------------------------
Name: Xxxxx X. Page
Title: Vice President
-11-
NAME OF INSTITUTION:
Sankaty Advisors, LLC as Collateral
Manager for Great Point CLO 1999-1
Ltd., as Term Lender
-----------------------------------------
By: /s/ Xxxxx X. Xxxxx
-----------------------------------
Name: Xxxxx X. Xxxxx
Title: Managing Director
Portfolio Manager
NAME OF INSTITUTION:
GSC PARTNERS GENINI FUNDLIMITED
-----------------------------------------
By: GSCP (NJ), L.P., as Collateral
Monitor
By: GSCP (NJ), INC., its General
Partner
By: /s/ Xxxxx Xxxxxx
-----------------------------------
Name: Xxxxx Xxxxxx
Title: Senior Vice President
NAME OF INSTITUTION:
Gulf Stream - Compass CLO 2002-I, Ltd.
-----------------------------------------
By: Gulf Stream Asset Management, LLC
By: /s/ Xxxxx X. Love
-----------------------------------
Name: Xxxxx X. Love
Title: Chief Credit Officer
-12-
NAME OF INSTITUTION:
HARBOR TOWN FUNDING LLC
-----------------------------------------
By: /s/ Xxx X. Xxxxxx
-----------------------------------
Name: Xxx X. Xxxxxx
Title: Asst. Vice President
NAME OF INSTITUTION:
Harch CLO I, Ltd.
-----------------------------------------
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Authorized Signatory
NAME OF INSTITUTION:
IDS Life Insurance Company
-----------------------------------------
By: American Express Asset Management
Group, Inc. as Collateral Manager
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Managing Director
NAME OF INSTITUTION:
INDOSUEZ CAPITAL FUNDING VI LIMITED
-----------------------------------------
By: Indosuez Capital as Collateral
Manager
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxx
Title: Managing Director
-13-
NAME OF INSTITUTION:
JUPITER LOAN FUNDING LLC
-----------------------------------------
By: /s/ Xxx X. Xxxxxx
-----------------------------------
Name: Xxx X. Xxxxxx
Title: Asst. Vice President
NAME OF INSTITUTION:
KZH CYPRESSTREE-1 LLC
-----------------------------------------
By: /s/ Xxxxx Xxxxxx-Xxxxxx
-----------------------------------
Name: Xxxxx Xxxxxx-Xxxxxx
Title: Authorized Agent
NAME OF INSTITUTION:
KZH HIGHLAND-2 LLC
-----------------------------------------
By: /s/ Xxxxx Xxxxxx-Xxxxxx
-----------------------------------
Name: Xxxxx Xxxxxx Xxxxxx
Title: Authorized Agent
NAME OF INSTITUTION:
KZH STERLING LLC
-----------------------------------------
By: /s/ Xxxxx Xxxxxx-Xxxxxx
-----------------------------------
Name: Xxxxx Xxxxxx Xxxxxx
Title: Authorized Agent
-14-
NAME OF INSTITUTION:
LASALLE BANK, N.A.
-----------------------------------------
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Assistant Vice President
NAME OF INSTITUTION:
Madison Avenue CDO III, Ltd.
-----------------------------------------
By: Metropolitan Life Insurance
Company,
as Collateral Manager
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Director
NAME OF INSTITUTION:
Madison Avenue CDO IV, Ltd.
-----------------------------------------
By: Metropolitan Life Insurance
Company,
as Collateral Manager
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Director
-15-
NAME OF INSTITUTION:
MAPLEWOOD (CAYMAN LIMITED)
---------------------------------
By: Xxxxx X. Xxxxxx & Company Inc.
under delegated authority from
Massachusetts Mutual Life Insurance
Company as Investment Manager
By: /s/ Xxxx Xxxxxxxxx
-----------------------------------
Name: Xxxx Xxxxxxxxx
Title: Managing Director
NAME OF INSTITUTION:
MASSACHUSETTS MUTUAL LIFE INSURANCE
COMPANY
-----------------------------------------
By: Xxxxx X. Xxxxxx & Company Inc. as
Investment Adviser
By: /s/ Xxxx Xxxxxxxxx
-----------------------------------
Name: Xxxx Xxxxxxxxx
Title: Managing Director
NAME OF INSTITUTION:
Metropolitan Life Insurance Company
-----------------------------------------
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Director
-16-
NAME OF INSTITUTION:
XXXXXX XXXXXXX SENIOR FUNDING
-----------------------------------------
By: /s/ Xxxx Xxxxxxxx
-----------------------------------
Name: Xxxx Xxxxxxxx
Title: Vice President
NAME OF INSTITUTION:
NATIONWIDE MUTUAL INSURANCE COMPANY
-----------------------------------------
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxx
Title: Associate Vice President
NAME OF INSTITUTION:
NATIONWIDE MUTUAL INSURANCE COMPANY
-----------------------------------------
(Sep. Acct. B/Retirement)
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxx
Title: Associate Vice President
-17-
NAME OF INSTITUTION:
OXFORD STRATEGIC INCOME FUND
-----------------------------------------
By: Xxxxx Xxxxx Management as
Investment Advisor
By: /s/ Xxxxx X. Page
-----------------------------------
Name: Xxxxx X. Page
Title: Vice President
NAME OF INSTITUTION:
PINEHURST TRADING, INC.
-----------------------------------------
By: /s/ Xxx X. Xxxxxx
-----------------------------------
Name: Xxx X. Xxxxxx
Title: Asst. Vice President
NAME OF INSTITUTION:
Sankaty Advisors, LLC as Collateral
Manager for Race Point CLO, Limited,
as Term
Lender
-----------------------------------------
By: /s/ Xxxxx X. Xxxxx
-----------------------------------
Name: Xxxxx X. Xxxxx
Title: Managing Director
Portfolio Manager
-18-
NAME OF INSTITUTION:
Sankaty Advisors, LLC as Collateral
Manager for Race Point II CLO,
Limited, as Term Lender
-----------------------------------------
By: /s/ Xxxxx X. Xxxxx
-----------------------------------
Name: Xxxxx X. Xxxxx
Title: Managing Director
Portfolio Manager
NAME OF INSTITUTION:
RESTORATION FUNDING CLO, LTD.
----------------------------------
By: Highland Capital Management, L.P.
as Collateral Manager
By: /s/ Xxxx Xxxxx
-----------------------------------
Name: Xxxx Xxxxx
Title: Chief Investment Officer
Highland Capital
Management, L.P.
NAME OF INSTITUTION:
RIVIERA FUNDING LLC
-----------------------------------------
By: /s/ Xxx X. Xxxxxx
-----------------------------------
Name: Xxx X. Xxxxxx
Title: Asst. Vice President
-19-
NAME OF INSTITUTION:
RMF LOANS LIMITED
-----------------------------------------
By: Highland Capital Management, L.P.
as Collateral Manager
By: /s/ Xxxx Xxxxx
-----------------------------------
Name: Xxxx Xxxxx
Title: Chief Investment Officer
Highland Capital
Management, L.P.
NAME OF INSTITUTION:
Sankaty High Yield Partners III,L.P.
-----------------------------------------
By: /s/ Xxxxx X. Xxxxx
-----------------------------------
Name: Xxxxx X. Xxxxx
Title: Managing Director
Portfolio Manager
NAME OF INSTITUTION:
SCOTTSDALE INSURANCE
-----------------------------------------
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxx
Title: Associate Vice President
-20-
NAME OF INSTITUTION:
SENIOR DEBT PORTFOLIO
-----------------------------------------
By: Boston Management and Research
as Investment Advisor
By: /s/ Xxxxx X. Page
-----------------------------------
Name: Xxxxx X. Page
Title: Vice President
NAME OF INSTITUTION:
Sequils - Centurion V. Ltd.
-----------------------------------------
By: American Express Asset Management
Group, Inc. as Collateral Manager
By: /s/ Xxxxxx Xxxxxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Director - Operations
NAME OF INSTITUTION:
Sierra CLO I. Ltd.
-----------------------------------------
By: /s/ Xxxx X.
-----------------------------------
Name: Xxxx X.
Title: Chief Operating-Officer
Central Pacific LLP
(Manager)
NAME OF INSTITUTION:
STANWICH LOAN FUNDING LLC
-----------------------------------------
By: /s/ Xxx X. Xxxxxx
-----------------------------------
Name: Xxx X. Xxxxxx
Title: Asst. Vice President
-21-
NAME OF INSTITUTION:
SUFFIELD CLO, LIMITED
-----------------------------------------
By: Xxxxx X. Xxxxxx & Company Inc. as
Collateral Manager
By: /s/ Xxxx Xxxxxxxxx
-----------------------------------
Name: Xxxx Xxxxxxxxx
Title: Managing Director
NAME OF INSTITUTION:
TORONTO DOMINION (NEW YORK), INC.
-----------------------------------------
By: /s/ Xxxx Xxxxxx
-----------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
NAME OF INSTITUTION:
Trumbull THC, Ltd.
-----------------------------------------
By: /s/ Xxxx Xxxxxx
-----------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
-22-
NAME OF INSTITUTION:
XXXXX CLO LTD., 2001-I
-----------------------------------------
By: Xxxxx X. Xxxxxx & Company Inc. as
Collateral Manager
By: /s/ Xxxx Xxxxxxxxx
-----------------------------------
Name: Xxxx Xxxxxxxxx
Title: Managing Director
NAME OF INSTITUTION:
Wachovia Bank, National Association
By: /s/ Xxxxxxx Page Xxxxxx
-----------------------------------
Name: Xxxxxxx Page Xxxxxx
Title: Assistant Vice President
NAME OF INSTITUTION:
WINGED FOOT FUNDING TRUST
-----------------------------------------
By: /s/ Xxx X. Xxxxxx
-----------------------------------
Name: Xxx X. Xxxxxx
Title: Asst. Vice President
-23-
EXHIBIT M
COMPLIANCE CERTIFICATE
This Compliance Certificate is delivered to you pursuant to Section
8.01(d) of the Credit Agreement, dated as of March 14, 2003 (as amended,
modified, restated and/or supplemented from time to time, the "Credit
Agreement"), among Xxxxx Xxxxxxx Incorporated (f/k/a Xxxxx Corporation Limited)
(the "Canadian Parent"), Xxxxx Holdings U.S.A. Inc. (the "Borrower"), the
lenders from time to time party thereto, Bank One, NA, Fleet National Bank and
The Bank of Nova Scotia, as Co-Documentation Agents, Citicorp North America,
Inc., as Administrative Agent, and Deutsche Bank Securities Inc., as Syndication
Agent. Terms defined in the Credit Agreement and not otherwise defined herein
are used herein as therein defined.
1. I am the duly elected, qualified and acting [Chief Financial
Officer] [Treasurer] [Other Financial Officer] of the Canadian Parent.
2. I have reviewed and am familiar with the contents of this
Compliance Certificate. I am providing this Compliance Certificate solely in my
capacity as an officer of the Canadian Parent. The matters set forth herein are
true to the best of my knowledge after due inquiry.
3. I have reviewed the terms of the Credit Agreement and the other
Credit Documents and have made or caused to be made under my supervision a
review in reasonable detail of the transactions and condition of the Canadian
Parent and its Subsidiaries during the accounting period covered by the
financial statements attached hereto as ANNEX 1 (the "Financial Statements").
Such review did not disclose the existence during or at the end of the
accounting period covered by the Financial Statements, and I have no knowledge
of the existence after due inquiry, as of the date of this Compliance
Certificate, of any condition or event which constitutes a Default or an Event
of Default[, except as set forth below].
4. Attached hereto as ANNEX 2 are the computations showing (in
reasonable detail) compliance with the covenants specified therein.
5. Attached hereto as ANNEX 3 is the information required by Section
8.01(d)(iii) of the Credit Agreement as of the date of this Compliance
Certificate.
6. Attached hereto as ANNEX 4 are the computations showing (in
reasonable detail) compliance with Section 8.21 of the Credit Agreement and the
information required by Section 8.01(d)(iv) of the Credit Agreement as of the
date of this Compliance Certificate.
7. Attached hereto as ANNEX 5 is the information required to
establish compliance with the respective subsections of Section 4.02 for the
relevant periods.
Exhibit M
Page 2
IN WITNESS WHEREOF, I have executed this Compliance Certificate this
__ day of _______, 200_.
XXXXX XXXXXXX INCORPORATED
By____________________________
Name:
Title:
ANNEX 1
to
EXHIBIT M
[Financial Statements to be enclosed]
ANNEX 2
to
EXHIBIT M
The information described herein is as of _________, ____(1) (the "Computation
Date") and, except as otherwise indicated below, pertains to the period from
January __, 200_ to the Computation Date (the "Relevant Period").
PERIOD OR DATE OF
NEGATIVE AND FINANCIAL COVENANTS DETERMINATION AMOUNT
-------------------------------- ------------- ------
A. Asset Sales, etc. (Section
9.02)
1. Section 9.02(x)(5)
a. Fair Market Value of all Aggregate amount after the $_________
assets transferred Effective Date
pursuant to Section
9.02(x)(5)
b. Principal amount of all Aggregate amount after the $_________
loans and advances made Effective Date
pursuant to Section
9.05(v)(B)(z)
(determined without
regard to any
write-downs or
write-offs thereof, but
net of any cash
repayments of principal
received in respect
thereof)
c. Amount of cash equity Aggregate amount after the $_________
contributions made Effective Date
pursuant to Section
9.05(xiv)(z) (net of any
cash repayments received
in respect thereof)
d. Sum of lines a, b and c $_________
e. Limit under Section
9.02(x)(5) $200,000,000
2. Section 9.02(xiii)(B) Aggregate Net Sale Proceeds
received during the Relevant
Period
B. Dividends (Section 9.03)
1. Section 9.03(ii) Aggregate amount of cash $________
expended during the Relevant
Period
C. Indebtedness (Section 9.04)
1. Section 9.04(ii) Amount outstanding on $________
Computation Date
2. Section 9.04(iii) Amount outstanding on $________
Computation Date
3. Section 9.04(iii)(x) Amount specified in item 2 $________
above that is outstanding
under 9.04(iii)(x) on the
Computation Date
--------
1 Insert the last day of the respective fiscal quarter or year covered by the
financial statements which are required to be accompanied by this
Compliance Certificate.
Annex 2
to Exhibit M
Page 2
PERIOD OR DATE OF
NEGATIVE AND FINANCIAL COVENANTS DETERMINATION AMOUNT
-------------------------------- ------------- ------
4. Section 9.04(vii) Amount outstanding on $________
Computation Date
5. Section 9.04(ix) Amount outstanding on $________
Computation Date
6. Section 9.04(xv) Amount outstanding on $________
Computation Date
D. Investments (Section 9.05)
1. Section 9.05(v)(z) See Section A.1 above
2. Section 9.05(vii)-Available
Basket
Amount
a. Initial Available Basket
Amount $100,000,000
b. Consolidated Cumulative Amount on Computation Date $________
25% Net Income Amount(2)
c. Investments made or Amount made after the $________
deemed made pursuant to Effective Date
9.05(vii)
d. Capital Expenditures Amount made after the $________
made pursuant to Section Effective Date
9.07(f)
e. Any increase to the Amount of increases after $________
Available Basket Amount the Effective Date
in accordance with
Section 9.05(vii)
f. Line a plus line b minus $________
---- -----
line c minus line d plus
----- ----
line e
3. Section 9.05(xiv)(z) See Section A.1 above
E. Financial Covenants
1. Capital Expenditures
(Section 9.07)
a. Section 9.07(a)
(i) Capital Expenditures Amount made in the fiscal $________
made pursuant to quarter of the Canadian
Section 9.04(a) Parent ending on the
Computation Date
(ii)Consolidated Net Amount in the fiscal Quarter $________
Sales of the Canadian Parent ending
on the Computation Date
[(iii) Capital Amount made in the Relevant $________
Expenditures made Period
pursuant to Section
9.07(a)
(iv)Consolidated Net Amount made in the Relevant $_______]3
Sales for the Period
Relevant Period
--------
2 Attached hereto in reasonable detail are the calculations required to
arrive at Consolidated Cumulative 25% Net Income.
Annex 2
to Exhibit M
Page 3
PERIOD OR DATE OF
NEGATIVE AND FINANCIAL COVENANTS DETERMINATION AMOUNT
-------------------------------- ------------- ------
b. Section 9.07(b)
(i) The lesser of (x) The immediately preceding $________
the unused amount of fiscal year of the Canadian
Capital Expenditures Parent (in the case of each
permitted pursuant to of clauses (x) and (y))
clause (i) or clause
(ii), as the case may
be, of the first
sentence of Section
9.07(a) and (y) 40% of
the Annual Permitted
CapEx Amount
(ii) Capital Amount made in Relevant $________
Expenditures made Period
pursuant to Section
9.07(b)
(iii) Line (i) minus $________
line (ii)
c. Section 9.07(d) Amount made during Relevant $________
Period
d. Section 9.07(e) Amount made during Relevant $________
Period
2. Consolidated Interest $________
Coverage Ratio (Section
9.08)
a. Consolidated EBITDA(4) Test Period (as defined in $________
the Credit Agreement) ended
on the Computation Date
b. Consolidated Interest Test Period ended on the $________
Expense(5) Computation Date
c. Ratio of line a to line b ____:1.00
d. Maximum Level permitted ____:1.00
pursuant to Section 9.08
3. Total Leverage Ratio
(Section 9.09)
a. Consolidated Debt(6) As at the Computation Date $________
b. Consolidated EBITDA Test Period ended on the $________
Computation Date
c. Ratio of line a to line b ____:1.00
d. Maximum Level permitted ____:1.00
pursuant to Section 9.09
--------
(. . . continued)
3 Not required in the case of a compliance certificate delivered with
quarterly financial statements.
4 Attach hereto in reasonable detail are the calculations required to arrive
at Consolidated EBITDA.
5 Attached hereto in reasonable detail are the calculations required to
arrive at Consolidated Interest Expense.
6 Attach hereto in reasonable detail are the calculations required to arrive
at Consolidated Debt.
Annex 2
to Exhibit M
Page 4
PERIOD OR DATE OF
NEGATIVE AND FINANCIAL COVENANTS DETERMINATION AMOUNT
-------------------------------- ------------- ------
4. Senior Leverage Ratio
(Section 9.09)
a. Consolidated Senior As at the Computation Date $________
Debt(7) as at the
Computation Date
b. Consolidated EBITDA Test Period ended on the $________
Computation Date
c. Ratio of line a to line b ____: 1.00
d. Maximum Level permitted
pursuant to Section 9.09 ____: 1.00
5. Senior Secured Leverage
Ratio (Section 9.09)
a. Consolidated Senior As at the Computation Date $________
Secured Debt(8)
b. Consolidated EBITDA Test Period ended on the $________
Computation Date
c. Ratio of line a to line b ____: 1.00
d. Level required pursuant
to Section 9.09 ____: 1.00
--------
7 Attach hereto in reasonable detail are the calculations required to arrive
at Consolidated Senior Debt.
8 Attach hereto in reasonable detail are the calculations required to arrive
at Consolidated Senior Secured Debt.
ANNEX 3
to
EXHIBIT M
1. It is hereby certified that no changes are required to be made to
Schedule VIII or Schedule X of the Credit Agreement, any of Annexes C, F, H
through K, inclusive, of the U.S. Security Agreement or Annexes A through F,
inclusive, of the U.S. Pledge Agreement, or any equivalent schedules or annexes
to any Canadian Security Agreement, Foreign Pledge Agreement or Additional
Security Document, in each case so as to make the information set forth therein
accurate and complete as of date of this Certificate[, except as specially set
forth below:
------
------
------
All actions required to be taken by the Credit Agreement and the Security
Documents as a result of the changes described above have been taken, and the
Collateral Agent has, for the benefit of the Secured Creditors, a first priority
perfected security interest in all Collateral pursuant to the various Security
Documents to the extent required by the terms thereof].(1)
--------
1 The bracketed language must be inserted if there have been any changes to
the information, as contemplated by Section 8.01(d)(ii) of the Credit
Agreement.
ANNEX 4
to
EXHIBIT M
1. The information described herein is as of _________, ____(1) (the
"Computation Date").
A. Section 8.21 Amount
(i) Balance Sheet Indebtedness on the $_______
Computation Date.
(ii) Minimum amount of Balance $_______
Sheet Indebtedness required to be
bearing interest at a fixed
interest rate pursuant to (and
calculated in accordance with)
Section 8.21 on the Computation
Date (i.e., 25% of the preceding
clause (i)).
(iii) Amount of Balance Sheet $_______
Indebtedness bearing interest at a
fixed interest rate on the
Computation Date (calculated in
accordance with Section 8.21).
2. Set forth below is a description of each Interest Rate Protection
Agreement maintained by the Canadian Parent and its Subsidiaries on the
Computation Date (which description shall include the notional amount
thereof, the principal terms (including the currency, financial terms
and expiration date) related thereto and whether a Lender (or any
affiliate thereof) is a party thereto):
--------------------------------
--------------------------------
--------------------------------
--------
1 Insert the last day of the respective fiscal quarter or year covered by the
financial statements which are required to be accompanied by this
Compliance Certificate.
ANNEX 5
to
EXHIBIT M
1. [During the Relevant Period, neither the Canadian Parent nor any of its
Subsidiaries has received any Net Sale Proceeds which would require mandatory
repayment pursuant to Section 4.02(c) of the Credit Agreement.] [During the
Relevant Period, neither the Canadian Parent nor any of its Subsidiaries has
made any Asset Sale.](1)
2. [During the Relevant Period, neither the Canadian Parent nor any of its
Subsidiaries has received any Net Cash Proceeds which would require a mandatory
repayment pursuant to Section 4.02(d) of the Credit Agreement.](2)
3. [During the Relevant Period, neither the Canadian Parent nor any of its
Subsidiaries has received any Net Cash Proceeds which would require a mandatory
repayment pursuant to Section 4.02(e) of the Credit Agreement.](3)
4. [During the Relevant Period, neither the Canadian Parent nor any
of its Subsidiaries has received any Net Recovery Event Proceeds.](4)
5. [For the Relevant Period, [the Excess Cash Flow is
$_____________] [there is no Excess Cash Flow].](5)
--------
1 If the Canadian Parent or any of its Subsidiaries has received Net Sale
Proceeds during the Relevant Period, the dates and amounts should be
specifically described, together with the dates and amounts of all required
mandatory repayments pursuant to Section 4.02(c) of the Credit Agreement,
together with a certification that all such required repayments have been
made.
2 If the Canadian Parent or any of its Subsidiaries has received such Net
Cash Proceeds during the Relevant Period that are required to be
mandatorily prepared pursuant to Section 4.02(d), the certificate should
describe the amounts and dates of the receipt thereof, as well as the
amounts and dates of such required mandatory repayments, together with the
certification that such payments have in fact been made.
3 If the Canadian Parent or any of its Subsidiaries has received Net Cash
Proceeds during the Relevant Period that are required to be mandatorily
prepared pursuant to Section 4.01(e), the certificate should describe the
amounts and dates of the receipt thereof, as well as the amounts and dates
of such required mandatory repayments, together with the certification that
such payments have in fact been made.
4 If the Canadian Parent or its respective Subsidiary has received any Net
Recovery Event Proceeds during the Relevant Period, the certificate should
describe same and state the date of each receipt thereof and the amount of
Net Recovery Event Proceeds received on each such date, together with
sufficient information as to mandatory repayments and/or reinvestments
thereof to determine compliance with Section 4.02(f) of the Credit
Agreement, together with a statement that the Borrower is in compliance
with the requirements of said Section 4.02(f).
5 This certification is only required in the case of a compliance certificate
delivered with annual financial statements. The certificate should describe
in reasonable detail the calculations necessary to determine the amount of
Excess Cash Flow for the Relevant Period as well as the amount and dates of
the required mandatory repayments pursuant to Section 4.02(g) of the Credit
Agreement, together with the certification that the required mandatory
repayments have been (or will be made) on the Excess Cash Flow Payment
Date.
