THIRD AMENDMENT
Execution Version
THIRD AMENDMENT
Reference is made to the Fifth Amended and Restated Credit Agreement dated as of September 6, 2007 by and among, amongst others, FirstService Corporation, as Canadian Borrower, FirstService (USA), Inc. and FirstService Delaware, LP, as U.S. Borrowers (together with the Canadian Borrower, the “Borrowers”), the Wholly-Owned Subsidiaries named on the execution pages thereof, as Unlimited Guarantors (the “Unlimited Guarantors”), the banks named on the execution pages thereof, as Lenders (the “Lenders”), TD Securities, as Lead Arranger and Bookrunner, The Toronto-Dominion Bank, as Collateral Agent (the “Collateral Agent”) and Canadian Xxxxxxxxxxxxxx Xxxxx, Xxxxxxx Xxxxxxxx (Xxxxx) LLC, as U.S. Administration Agent (the “5th ARCA”), as amended by the Waiver and First Amendment dated as of January 25, 2008 and by the Third Waiver and Second Amendment dated as of March 31, 2009, as the same may be further amended, supplemented, revised, restated or replaced from time to time (the “Credit Agreement”). Capitalized terms referred to and not defined herein shall have the meanings ascribed thereto in the Credit Agreement.
THIS THIRD AMENDMENT TO THE CREDIT AGREEMENT (hereinafter referred to as the “Third Amendment”) is executed as of the 6th day of July, 2011 (the “Amendment Date”), by the Borrowers, the Unlimited Guarantors, the Direct Guarantors (who are not Unlimited Guarantors) (the “Direct Guarantors”, and together with the Unlimited Guarantors, the “Guarantors”) and the Agents, The Toronto-Dominion Bank (“TD Canada”), Toronto Dominion (Texas) LLC (“TD US”), JPMorgan Chase Bank, N.A., Toronto Branch (“JPM Canada”) and JPMorgan Chase Bank, N.A. (“JPM US”) (TD Canada, TD US, JPM Canada and JPM US collectively, the “Incremental Lenders”);
WHEREAS the Borrowers have provided the Canadian Administration Agent with a notice in writing requesting an increase in the Revolving Facilities, in accordance with Section 2.14 of the Credit Agreement, in an aggregate principal amount of U.S.$50,000,000 (the “Incremental Facility”);
AND WHEREAS the Incremental Lenders have agreed to provide the Incremental Facility, subject to the provisions and delivery of this Third Amendment, to the Borrowers by increasing their overall Commitments under the Credit Agreement as current Lenders under the Credit Agreement;
AND WHEREAS Section 2.14(d) of the Credit Agreement provides that in order to establish an Incremental Facility, an amending agreement to the Credit Agreement, in form and substance satisfactory to the Canadian Administration Agent, shall be executed by the Borrowers, the Incremental Lenders and the Agents;
NOW THEREFORE, for good and valuable consideration, the sufficiency of which is hereby acknowledged, the parties hereby agree as follows:
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1.
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Amendments
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(a)
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Effective as of the Amendment Date, in Section 1.1 of the Credit Agreement,
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(i)
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the definition of Canadian Revolving Facility Commitment is hereby amended by deleting same in its entirety and substituting the following therefor:
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““Canadian Revolving Facility Commitment” means the Commitments of the Canadian Lenders to make Advances to the Canadian Borrower up to the Cdn.$ Equivalent Amount of U.S.$158,250,000; provided that the aggregate outstanding Borrowings under the Canadian Facilities shall not exceed the Total Canadian Commitments at any time.”;
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(ii)
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the definition of Lender’s Counsel is hereby amended by deleting the words “Xxxxxx Xxxxxxx LLP” and replacing same with the words “Xxxxxx Xxxx OR LLP” therefor;
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(iii)
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the definition of Participation is hereby amended by deleting the phrase “as the same may be adjusted as the result of the Incremental Facility” therefrom;
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(iv)
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the definition of Total Canadian Commitments is hereby amended by deleting same in its entirety and substituting the following therefor:
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““Total Canadian Commitments” means the Equivalent Amount of U.S.$158,250,000 and includes the Canadian Revolving Facility Commitment, and the Canadian Swingline Commitment and the HSBC Sponsor Commitment which may be increased or decreased as the result of a reallocation made in accordance with Section 6.6.”;
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(v)
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the definition of Total Commitments is hereby amended by deleting same in its entirety and substituting the following therefor:
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““Total Commitments” means the aggregate for all Facilities from time to time of the Lenders’ Commitments from time to time to a maximum aggregate amount of U.S.$275,000,000.”;
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(vi)
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the definition of Total U.S. Commitments is hereby amended by deleting same in its entirety and substituting the following therefor:
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““Total U.S. Commitments” means U.S.$116,750,000 and includes the U.S. Revolving Facility Commitment and the U.S. Swingline Commitment which may be increased or decreased as the result of a reallocation made in accordance with Section 6.6.”; and
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(vii)
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the definition of U.S. Revolving Facility Commitment is hereby amended by deleting same in its entirety and substituting the following therefor:
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““U.S. Revolving Facility Commitment” means Commitments of the U.S. Lenders to make Advances to the U.S. Borrowers up to
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U.S.$116,750,000; provided that the aggregate outstanding Borrowings under the U.S. Facilities shall not exceed the Total U.S. Commitments at any time.”.
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(b)
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Effective as of the Amendment Date, Schedule “L” to the Credit Agreement is hereby amended by deleting same in its entirety and substituting therefor Schedule “L” annexed as Exhibit “A” to this Third Amendment.
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(c)
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Notwithstanding the Participations referenced in the signature pages of all Lenders under the 5th ARCA, in accordance with the definition of Participation (prior to its amendment hereto), the Participations of each of the Lenders shall be as referenced and adjusted (in accordance with, and as permitted by, the Credit Agreement) in Schedule “L” to the Credit Agreement (as amended by this Third Amendment and annexed hereto as Exhibit “A”).
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2.
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Agreements, Acknowledgments and Covenants
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(a)
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Signatories
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The parties hereto agree that:
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(i)
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as of the Amendment Date, each Incremental Lender (i) shall be, and continues to be, a party to the Credit Agreement as a Lender and (ii) shall succeed to all of the rights, and is obligated to perform all of the obligations, of a Lender under the Credit Agreement with an increased Commitment as reflected in the Total Commitment set forth on its signature page hereto and in Schedule “L” to the Credit Agreement (as amended by this Third Amendment and annexed hereto as Exhibit “A”); and
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(ii)
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this Third Amendment shall constitute the Incremental Amending Agreement contemplated by Section 2.14 of the Credit Agreement.
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(b)
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Incremental Lenders
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Each Incremental Lender hereby acknowledges and agrees that, as of the Amendment Date, it will perform, in accordance with their terms, all of the obligations that are required to be performed by it as a Lender under the Credit Agreement.
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(c)
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Borrowers
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Each Borrower acknowledges that, upon and after the Amendment Date, (i) it shall have no further right to request an increase in the Revolving Facilities pursuant to Section 2.14 of the Credit Agreement, and (ii) Section 2.14 of the Credit Agreement shall cease to have any further force and effect.
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3.
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Reaffirmation of Obligations
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Each of the Borrowers and each of the Unlimited Guarantors:
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(a)
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reaffirms its obligations under the Credit Agreement; and
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(b)
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confirms that its obligations remain in full force and effect with respect to the Credit Agreement and all other documents delivered by it thereunder,
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in each case as of the Amendment Date after giving effect to the amendments and agreements provided for herein.
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4.
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Reaffirmation of Representations and Warranties
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Each of the Borrowers and each of the Unlimited Guarantors hereby represent and warrant that as of the date of the execution of this Third Amendment:
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(a)
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there exists no Default or Event of Default under the Credit Agreement; and
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(b)
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its representations and warranties contained in Article VIII of the Credit Agreement are true and correct as of such dates, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty shall be true and correct on and as of such earlier date.
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5.
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No Other Amendment
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Except to the limited extent set forth herein no additional amendment of any other term, condition, covenant, agreement or any other aspect of the Credit Agreement is intended or implied.
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6.
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Conditions to Effectiveness
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This Third Amendment shall become effective upon:
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(a)
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delivery to the Canadian Administration Agent of five (5) originally executed copies of this Third Amendment, dated the Amendment Date, as executed by the Borrowers, Guarantors, the Administrative Agents and the Incremental Lenders;
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(b)
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the Canadian Administration Agent having received such other certificates, documentation and opinions as the Canadian Administration Agent may request, acting reasonably;
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(c)
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the Agents being satisfied that all representations and warranties contained in Article VIII of the Credit Agreement shall remain true and accurate following the Third Amendment; and
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(d)
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Lenders’ Counsel having received payment of all fees or other amounts due and payable to them in connection with this Third Amendment.
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7.
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Unlimited Guarantor Acknowledgement
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The Unlimited Guarantors (i) consent to and approve the execution and delivery of this Third Amendment by the parties hereto, (ii) agree that this Third Amendment does not and shall
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not limit or diminish in any manner the obligations of the Guarantors (including each Unlimited Guarantor’s Guaranteed Obligations) under their guarantees pursuant to the Credit Agreement (including, without limitation, the terms of Section 16 thereof) (the “Unlimited Guarantees”) and under the Credit Agreement as amended hereunder, (iii) agree that this Third Amendment shall not be construed as requiring the consent of the Unlimited Guarantors in any other circumstance, (iv) reaffirm their obligations, representations and warranties under the Unlimited Guarantees and under the Credit Agreement, and (v) agree that the Unlimited Guarantees and the Credit Agreement, as amended by this Third Amendment, remain in full force and effect and are hereby ratified, continued and confirmed.
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8.
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Direct Guarantor Acknowledgment
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The Direct Guarantors (i) consent to and approve the execution and delivery of this Third Amendment by the parties hereto, (ii) agree that this Third Amendment, and the Credit Agreement as amended hereunder, does not and shall not limit or diminish in any manner the obligations of the Direct Guarantors under their guarantees pursuant to the Omnibus Credit Guarantee (U.S. Guarantors) dated as of April 1,2005 (the “Direct Guarantees”), (iii) agree that this Third Amendment shall not be construed as requiring the consent of the Direct Guarantors in any other circumstance, (iv) reaffirm their obligations, representations and warranties under the Direct Guarantees, and (v) agree that the Direct Guarantees remain in full force and effect and are hereby ratified, continued and confirmed.
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9.
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Security
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By signing this Third Amendment, the Borrowers Unlimited Guarantors and Direct Guarantors confirm that all security delivered to or for the benefit of the Collateral Agent on behalf of the Lenders pursuant to the Credit Agreement, the Unlimited Guarantees and the Direct Guarantees, as applicable, remains in full force and secures all indebtedness, liabilities and obligations of the Borrowers, Unlimited Guarantors and Direct Guarantors under the Credit Agreement, Unlimited Guarantees and the Direct Guarantees, as applicable.
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10.
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No Novation
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This Third Amendment will not discharge or constitute novation of any debt, obligation, covenant or agreement contained in the Credit Agreement or any of the documents or security delivered pursuant thereto but same shall remain in full force and effect save to the extent same are amended by the provisions of this Third Amendment.
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11.
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Expenses
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All reasonable expenses of the Agents and the Incremental Lenders in connection with this Third Amendment and the related documentation, including all reasonable legal fees and disbursements incurred by the Agents, shall be for the account of the Borrowers.
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12.
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Benefit of Agreement
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This Third Amendment enures to the benefit of and binds the parties and their respective successors and permitted assigns.
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13.
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Further Assurances
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Each party shall from time to time promptly execute and deliver all further documents and take all further action necessary to give effect to the provisions and intent of this Third Amendment.
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14.
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Counterparts
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This Third Amendment may be executed in one or more counterparts, including by way of facsimile, or electronically, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument.
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15.
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Governing Law
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This Third Amendment shall be interpreted and the rights and liabilities of the parties hereto shall be determined in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein.
[Signature pages commence on the following page.]
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IN WITNESS WHEREOF, the parties hereto have caused this Third Amendment to be executed as of the date first above written.
FIRSTSERVICE CORPORATION, as Canadian Borrower
By: /s/ Xxxx X. Xxxxxxxxxxxx
Name: Xxxx X. Xxxxxxxxxxxx
Title: Senior Vice President and
Chief Financial Officer
FIRSTSERVICE DELAWARE, LP, as a U.S. Borrower
By: FirstService Corporation,
its General Partner
By: /s/ Xxxx X. Xxxxxxxxxxxx
Name: Xxxx X. Xxxxxxxxxxxx
Title: Senior Vice President and
Chief Financial Officer
FIRSTSERVICE (USA), INC., as a U.S. Borrower
By: /s/ Xxxx X. Xxxxxxxxxxxx
Name: Xxxx X. Xxxxxxxxxxxx
Title: Secretary
2156593 ONTARIO LIMITED, as an Unlimited Guarantor
By: /s/ Xxxx X. Xxxxxxxxxxxx
Name: Xxxx X. Xxxxxxxxxxxx
Title: Chief Financial Officer
BRANDPOINT SERVICES, INC., as an Unlimited Guarantor
By: /s/ Xxxx X. Xxxxxxxxxxxx
Name: Xxxx X. Xxxxxxxxxxxx
Title: Authorized Xxxxxx
C A MANAGEMENT SERVICES LTD., as an Unlimited Guarantor
By: /s/ Xxxx X. Xxxxxxxxxxxx
Name: Xxxx X. Xxxxxxxxxxxx
Title: Authorized Xxxxxx
CONDOMINIUM FIRST MANAGEMENT SERVICES LTD., as an Unlimited Guarantor
By: /s/ Xxxx X. Xxxxxxxxxxxx
Name: Xxxx X. Xxxxxxxxxxxx
Title: Authorized Xxxxxx
EQUITY CAPITAL MANAGEMENT & REALTY LTD., as an Unlimited Guarantor
By: /s/ Xxxx X. Xxxxxxxxxxxx
Name: Xxxx X. Xxxxxxxxxxxx
Title: Authorized Xxxxxx
FIRSTSERVICE ACQUISITIONCO INC., as an Unlimited Guarantor
By: /s/ Xxxx X. Xxxxxxxxxxxx
Name: Xxxx X. Xxxxxxxxxxxx
Title: Secretary
FIRSTSERVICE RESIDENTIAL MANAGEMENT CANADA INC., as an Unlimited Guarantor
By: /s/ Xxxx X. Xxxxxxxxxxxx
Name: Xxxx X. Xxxxxxxxxxxx
Title: Director
PILLAR TO POST INC., as an Unlimited Guarantor
By: /s/ Xxxx X. Xxxxxxxxxxxx
Name: Xxxx X. Xxxxxxxxxxxx
Title: Authorized Xxxxxx
THE FRANCHISE COMPANY INC., as an Unlimited Guarantor
By: /s/ Xxxx X. Xxxxxxxxxxxx
Name: Xxxx X. Xxxxxxxxxxxx
Title: Assistant Secretary
VANCOUVER CONDOMINIUM SERVICES LTD., as an Unlimited Guarantor
By: /s/ Xxxx X. Xxxxxxxxxxxx
Name: Xxxx X. Xxxxxxxxxxxx
Title: Authorized Xxxxxx
FFI PREMIUMS, INC., as a Guarantor
By: /s/ Xxxx X. Xxxxxxxxxxxx
Name: Xxxx X. Xxxxxxxxxxxx
Title: Director
FIRSTSERVICE ADMINISTRATION GP, as a Guarantor
By: 2156593 Ontario Limited,
its Partner
By: /s/ Xxxx X. Xxxxxxxxxxxx
Name: Xxxx X. Xxxxxxxxxxxx
Title: Chief Financial Officer
FIRSTSERVICE CAM HOLDINGS, INC., as an Unlimited Guarantor
By: /s/ Xxxx X. Xxxxxxxxxxxx
Name: Xxxx X. Xxxxxxxxxxxx
Title: Secretary
FIRSTSERVICE DELAWARE CAM, INC., as an Unlimited Guarantor
By: /s/ Xxxx X. Xxxxxxxxxxxx
Name: Xxxx X. Xxxxxxxxxxxx
Title: Secretary
FIRSTSERVICE FINANCIAL, INC., as a Guarantor
By: /s/ Xxxx X. Xxxxxxxxxxxx
Name: Xxxx X. Xxxxxxxxxxxx
Title: Director
R CAPITAL LLC, as a Guarantor
By: /s/ Xxxx X. Xxxxxxxxxxxx
Name: Xxxx X. Xxxxxxxxxxxx
Title: Manager
SERVICE AMERICA ENTERPRISE, INC., as a Guarantor
By: /s/ Xxxx X. Xxxxxxxxxxxx
Name: Xxxx X. Xxxxxxxxxxxx
Title: Authorized Xxxxxx
TFC – S9, INC., as a Guarantor
By: /s/ Xxxx X. Xxxxxxxxxxxx
Name: Xxxx X. Xxxxxxxxxxxx
Title: Authorized Xxxxxx
TFC 1007, INC., as a Guarantor
By: /s/ Xxxx X. Xxxxxxxxxxxx
Name: Xxxx X. Xxxxxxxxxxxx
Title: Authorized Xxxxxx
THE FRANCHISE COMPANY (U.S.) INC., as a Guarantor
By: /s/ Xxxx X. Xxxxxxxxxxxx
Name: Xxxx X. Xxxxxxxxxxxx
Title: Authorized Xxxxxx
XX XXXX INSURANCE BROKERAGE, LLC, as a Guarantor
By: /s/ Xxxx X. Xxxxxxxxxxxx
Name: Xxxx X. Xxxxxxxxxxxx
Title: Manager
WORTHINGTON INSURANCE BROKERS, INC., as a Guarantor
By: /s/ Xxxx X. Xxxxxxxxxxxx
Name: Xxxx X. Xxxxxxxxxxxx
Title: Director
THE TORONTO-DOMINION BANK, as Collateral Agent
By: /s/ Xxxxx Xxxxx /s/ Xxx Xxxxxx
Name: Xxxxx Xxxxx Xxx Xxxxxx
Title: Vice President Managing Director
THE TORONTO-DOMINION BANK, as Canadian Administration Agent
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Vice President, Loan Syndications - Agency
TORONTO-DOMINION (TEXAS) LLC, as U.S. Administration Agent
By: /s/
Name: (not legible)
Title: (not legible)
THE TORONTO-DOMINION BANK, as an Incremental Lender
By: /s/ Xxx Xxxxxx /s/ Xxxxx Xxxxx
Name: Xxx Xxxxxx Xxxxx Xxxxx
Title: Managing Director Vice President
JPMORGAN CHASE BANK, N.A., TORONTO BRANCH, as an Incremental Lender
By: /s/ Xxxxxxx Xxxxxxx
Name: Xxxxxxx Xxxxxxx
Title: Vice President
TORONTO DOMINION (TEXAS) LLC, as an Incremental Lender
By: /s/
Name: (not legible)
Title: (not legible)
JPMORGAN CHASE BANK, N.A., as an Incremental Lender
By: /s/ Xxxxxxx Xxxxxxx
Name: Xxxxxxx Xxxxxxx
Title: Vice President
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CANADIAN LENDER
THE TORONTO-DOMINION
BANK
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COMMITMENT
Total Commitments: U.S.$35,063,953.48
(Pro-rata for all
Canadian Facilities)
Participation for all
Canadian Facilities: 22.1573%
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Per:
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/s/ Xxx Xxxxxx /s/ Xxxxx Xxxxx
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Name: Xxx Xxxxxx, Managing Director
Xxxxx Xxxxx, Vice President
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Tel:
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Fax:
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Email:
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Address:
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CANADIAN LENDER
JPMORGAN CHASE BANK, N.A.,
TORONTO BRANCH
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COMMITMENT
Total Commitments: U.S.$31,465,116.28
(Pro-rata for all
Canadian Facilities)
Participation for all
Canadian Facilities: 19.8831%
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Per:
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/s/ Xxxxxxx Xxxxxxx
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Name: Xxxxxxx Xxxxxxx, Vice President
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Tel:
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Fax:
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Email:
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Address:
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U.S. LENDER
TORONTO DOMINION
(TEXAS) LLC
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COMMITMENT
Total Commitments: U.S.$24,936,046.52
(Pro-rata for all U.S.
Facilities)
Participation for all
U.S. Facilities: 21.3584%
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Per:
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/s/
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Name: (not legible)
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Tel:
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Fax:
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Email:
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Address:
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U.S. LENDER
JPMORGAN CHASE BANK, N.A.
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COMMITMENT
Total Commitments: U.S.$23,534,883.72
(Pro-rata for all U.S.
Facilities)
Participation for all
U.S. Facilities: 20.1584%
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Per:
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/s/ Xxxxxxx Xxxxxxx
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Name: Xxxxxxx Xxxxxxx, Vice President
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Tel:
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Fax:
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Email:
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Address:
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EXHIBIT “A”
Please see attached
SCHEDULE "L" TO THE FIFTH AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF SEPTEMBER 6, 2007 BY AND AMONG, AMONGST OTHERS, FIRSTSERVICE CORPORATION, AS CANADIAN BORROWER, FIRSTSERVICE (USA), INC. AND FIRSTSERVICE DELAWARE, LP, AS U.S. BORROWERS, THE WHOLLY-OWNED SUBSIDIARIES NAMED ON THE EXECUTION PAGES THEREOF, AS UNLIMITED GUARANTORS, THE BANKS NAMED ON THE EXECUTION PAGES THEREOF, AS LENDERS, TD SECURITIES, AS LEAD ARRANGER AND BOOKRUNNER, THE TORONTO-DOMINION BANK, AS COLLATERAL AGENT, THE TORONTO-DOMINION BANK, AS CANADIAN ADMINISTRATION AGENT AND TORONTO DOMINION (TEXAS), LLC, AS U.S. ADMINISTRATION AGENT.
COMMITMENTS
FirstService Corporation
Commitments
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Canadian Facilities
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U.S. Facilities
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Lenders
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Canadian Sponsor Commitment
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Canadian Swingline Commitment
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Canadian Revolving Facility Commitment
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Total Canadian Commitment
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%
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U.S. Swingline Commitment
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U.S. Revolving Facility Commitment
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Total U.S. Commitment
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%
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Total Commitments
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Total %
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The Toronto-Dominion Bank
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$10,000,000
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$25,063,953.48
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$35,063,953.48
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22.1573%
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$35,063,953.48
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12.7505%
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Toronto Dominion (Texas) LLC
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$24,936,046.52
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$24,936,046.52
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21.3584%
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$24,936,046.52
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9.0676%
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JPMorgan Chase, N.A., Toronto Branch
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$31,465,116.28
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$31,465,116.28
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19.8831%
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$31,465,116.28
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11.4418%
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JPMorgan Chase, N.A.
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$5,000,000
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$18,534,883.72
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$23,534,883.72
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20.1584%
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$23,534,883.72
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8.5581%
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HSBC Bank Canada*
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$7,500,000
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$9,697,674.42
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$17,197,674.42
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10.8674%
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*
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*
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$17,197,674.42
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6.2537%
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HSBC USA National Association**
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$12,802,325.58
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$12,802,325.58
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10.9655%
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$12,802,325.58
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4.6554%
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Royal Bank of Canada, New York Branch
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$12,802,325.58
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$12,802,325.58
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10.9655%
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$12,802,325.58
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4.6554%
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Royal Bank of Canada
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$17,197,674.42
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$17,197,674.42
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10.8674%
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$17,197,674.42
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6.2537%
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The Bank of Nova Scotia, New York Agency
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$12,802,325.58
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$12,802,325.58
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10.9655%
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$12,802,325.58
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4.6554%
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The Bank of Nova Scotia
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$17,197,674.42
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$17,197,674.42
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10.8674%
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$17,197,674.42
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6.2537%
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Bank of Montreal
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$11,465,116.28
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$11,465,116.28
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7.2449%
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$11,465,116.28
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4.1691%
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Bank of Montreal, Chicago Branch
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$8,534,883.72
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$8,534,883.72
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7.3103%
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$8,534,883.72
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3.1036%
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United Overseas Bank Limited, Vancouver Branch
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$17,197,674.42
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$17,197,674.42
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10.8674%
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$17,197,674.42
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6.2537%
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United Overseas Bank Limited, New York Agency
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$12,802,325.58
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$12,802,325.58
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10.9655%
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$12,802,325.58
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4.6554%
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Bank of America, Canada Branch
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$11,465,116.28
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$11,465,116.28
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7.2449%
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$11,465,116.28
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4.1691%
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Bank of America, N.A.
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$8,534,883.72
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$8,534,883.72
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7.3103%
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$8,534,883.72
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3.1036%
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$7,500,000
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$10,000,000
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$140,750,000
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$158,250,000
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100.00%
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$5,000,000
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$111,750,000
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$116,750,000
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100.00%
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$275,000,000
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100.00%
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_____________________
* HSBC Bank Canada's commitment under the US Facilities will be funded by HSBC USA, National Association.
** HSBC USA, National Association is a participating as a US Lender on an uncommitted basis.
