Exhibit 10.2.3
BRACKNELL AMENDING AGREEMENT (2001-1)
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Amending Agreement (2001-1) dated as of July 30, 2001, among Bracknell
Corporation, Bracknell Corporation (USA), Inc. (formerly Nationwide Electric,
Inc.) and The State Group Limited, Royal Bank of Canada, as Administrative Agent
and the financial institutions listed as Lenders in the Third Amended and
Restated Credit Agreement (as defined below).
WHEREAS pursuant to a Third Amended and Restated Credit Agreement as
of December 22, 2000 among the parties hereto (the "Third Amended and Restated
Credit Agreement"), the Lenders made certain credit facilities available to the
Borrowers;
AND WHEREAS the Borrowers have requested the Lenders to make certain
amendments to the Third Amended and Restated Credit Agreement to (i) provide for
a deferral of a scheduled principal payment of U.S.$1,500,000 from July 31, 2001
to October 31, 2001; (ii) provide for a deferral of a required principal payment
from certain asset sales of U.S.$8,400,000 from July 31, 2001 to the earlier of
receipt of the Automotive Receivables (as defined below) and October 31, 2001;
(iii) change the levels of compliance for the financial covenants applicable for
the Financial Quarter ending July 31, 2001; (iv) increase, during the period
ending July 31, 2001, the amount of proceeds of accommodations under the U.S.
Operating Facility which may be used for Network Development Business from
U.S.$20,000,000 to U.S.$30,000,000; and (v) to increase the number of Swingline
Lenders;
AND WHEREAS the Borrowers have agreed with the Lenders to (i) not make
any further Acquisitions or Investments without the approval of the Majority
Lenders; (ii) to maintain, and cause each of their respective Subsidiaries to
maintain, bank accounts with one or more of the Lenders only and to deposit and
cause such Subsidiaries to deposit to such accounts all monies from time to time
received by the Borrowers and their Subsidiaries; and (iii) to co-operate with
the Lenders in their review of the business and operations of the Borrowers and
their respective Subsidiaries;
AND WHEREAS the parties hereto have agreed to amend the Third Amended
and Restated Credit Agreement to reflect the foregoing;
NOW THEREFORE this Agreement witnesseth that for good and valuable
consideration the receipt and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
1. Definitions. Unless otherwise defined herein, terms defined in the Third
Amended and Restated Credit Agreement are used in this Bracknell Amending
Agreement (2001-1) and the recitals hereto as therein defined.
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2. Amendment to Schedules. Schedule 7.01(f) to the Third Amended and Restated
Credit Agreement shall be deleted and the Schedule 7.01(f) annexed hereto
substituted therefor.
3. Amendments to Article 1. Section 1.01 is amended as follows:
(a) The following definition shall be added immediately following the
definition of "Assignee" and before the definition of "Bank One":
"'Automotive Receivables' means anticipated receivables of (a)
Xxxxxxxxx Electric Inc. (i) of approximately U.S$360,000 from
Xxxxx Electric, Xxxxxxxx and Able Construction in relation to
work performed for Ford Motor Company in July, 2001; and (ii) of
approximately U.S.$900,000 from Toyota Motor Corporation,
Marubeni Plant Contractor and Lynx Industrial in relation to work
performed for Toyota Motor Corporation in July, 2001; (b) Sylvan
Industrial Piping (i) of approximately U.S.$359,127 from General
Motors Corporation, Central Conveyor and Commercial Contracting
in relation to work performed for General Motors Corporation in
July, 2001; (ii) of approximately U.S.$552,950 from Xxxxxxxx &
Xxxxxxx, Idea Engineering, Xxxxxxxx, Overhead Conveyor, Dominion
Tool and Allied Uniking in relation to work performed for Ford
Motor Company in July, 2001; and (iii) of approximately
U.S.$350,153 from Fab Engineers in relation to work performed for
Auto Alliance in July, 2001; (c) The State Group Limited (i) of
approximately Cdn.$7,647,000 from Ford Motor Company of Canada,
American Controls, Sanyo, Pico, Rapistan, Kuka, Dominion Tool and
PSI in relation to work performed for Ford Motor Company of
Canada in July, 2001; (ii) of approximately Cdn.$600,000 from
Chrysler Motor Company of Canada in relation to work performed
for Chrysler Motor Company of Canada in July, 2001; (iii) of
approximately Cdn.$2,450,000 from Toyota Motor Company of Canada,
Daifuku and Trinity in relation to work performed for Toyota
Motor Company of Canada in July, 2001; and (iii) of approximately
Cdn.$750,000 from General Motors Corporation of Canada in
relation to work performed for General Motors Corporation of
Canada in July, 2001; (iv) of approximately U.S.$14,500 from Ford
Motor Company in relation to work performed for Ford Motor
Company in July, 2001; and (v) of approximately U.S.$117,600 from
Chrysler Motor Company in relation to work performed for Chrysler
Motor Company in July, 2001."
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(b) The definition of "Commitment" shall be amended by deleting
"U.S.$5,000,000" in clause (vi) thereof and replacing such deletion
with "U.S.$9,750,000".
(c) The definition of "Consolidated EBITDA" shall be amended by deleting
"(i)" in the 15th line thereof, deleting the phrase and punctuation",
except as specifically permitted in connection with a Permitted
Acquisition, and (ii) the Restructuring Charge" and replacing such
deletion with a ".".
(d) The following definition shall be added immediately following the
definition of "Issuing Lender" and before the definition of "Joint
Venture":
"'July 2001 Asset Sale Proceeds Payment' has the meaning
specified in Section 2.04(6)."
(e) The definition of "Libor Interest Period" shall be amended by deleting
the phrase and punctuation "2, 3 or 6 months" appearing in the seventh
line thereof and substituting the word "month" therefor.
(f) The definition of "Permitted Acquisition" shall be deleted.
(g) The definition of "Swingline Advances" shall be deleted and the
following substituted therefor:
"'Swingline Advances' means Advances made by Swingline Lender
or a U.S. Alternate Operating Lender under Article 3."
(h) The definition of "U.S. Alternate Operating Lender" shall be deleted
and the following substituted therefor:
"'U.S. Alternate Operating Lenders' means, collectively, Bank
One, Xxxxx Fargo Bank, N.A. and Bank of America N.A. and their
respective successors and assigns, and, in the singular, any
one of them."
4. Amendments to Article 2. Article 2 is amended as follows:
(a) Section 2.01(3) shall be deleted and the following substituted
therefor:
"Each U.S. Alternate Operating Lender agrees on the terms and
conditions of this Agreement, to make Accommodations available
to Nationwide in accordance with its U.S. Alternate Operating
Lender's U.S. Alternate
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Operating Commitment at any time after execution and delivery by
Nationwide of such U.S. Alternate Operating Lender's usual and
customary documentation, if any, for the provision of cash management
services. Accommodations will be made available as Advances pursuant
to Article 3."
(b) Section 2.02 shall be amended by adding at the end thereof the following as
Section 2.02(4):
"(4) At any time, and for such time as, the Accommodations
Outstanding under the U.S. Operating Facility (excluding any
Accommodations Outstanding under the U.S. Alternate Operating
Facility) exceed U.S.$85,250,000, the U.S. Alternate Operating
Commitment shall be reduced, and each U.S. Alternate Operating
Lender's U.S. Alternate Operating Commitment shall be reduced
rateably, by the amount by which the Accommodations Outstanding under
the U.S. Operating Facility (excluding any Accommodations Outstanding
under the U.S. Alternate Operating Facility) exceed U.S.$85,250,000.
Each U.S. Alternate Operating Lender shall promptly advise Nationwide
(i) of each such reduction; and (ii) the amount of such U.S. Alternate
Lender's U.S. Alternate Operating Commitment."
(c) Section 2.03(2) shall be amended by deleting the last sentence thereof and
substituting the following therefor:
"Proceeds of Accommodations under the U.S. Operating Facility
(excluding Accommodations under the U.S. Alternate Operating Facility)
used for the Network Development Business shall not exceed (i) U.S.
$30,000,000 at any time on or before July 31, 2001; and (ii) at any
other time, U.S.$20,000,000, and, in each case, in the aggregate at
any one time."
(d) Section 2.04(2) shall be deleted and the following substituted therefor:
"Bracknell shall repay (subject to Section 9.01) and there shall
become due and payable the Accommodations Outstanding under the
Canadian Term Facility and the Canadian Acquisition Facility
rateably in quarterly installments in the following amounts
(expressed as a percentage of the Canadian Term Commitment and the
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Canadian Acquisition Commitment at the close of business on April 30,
2000) on the last day of each of the following Financial Quarters at
the rate of (i) 5% commencing April 30, 2001 and (subject as provided
in the last sentence of this Section 2.04(2)) ending with the
Financial Quarter ending October 31, 2003; (ii) 10% commencing with
the Financial Quarter ending January 31, 2004 and ending with the
Financial Quarter ending July 31, 2004; and (iii) 15% for the
Financial Quarter ending October 31, 2004 provided that all
Accommodations Outstanding shall have been paid in full on October 31,
2004. The payment required to be made on July 31, 2001 in accordance
with immediately preceding (i) shall not be required to be made on
July 31, 2001 and shall be deferred to and paid on October 31, 2001
(together with principal payment required to be made on such date
pursuant to the provisions of this Section 2.04(2)."
(e) Section 2.04(6) shall be deleted and the following substituted therefor:
"(6) Subject as provided in the last sentence of this Section
2.04(6), if a Borrower or a Restricted Subsidiary makes a disposition
of assets as permitted in Section 8.02(d)(v), 100% of the Net Proceeds
thereof shall be paid to the Administrative Agent, for the account of
the Lenders and shall be applied rateably to the prepayment of
Accommodations Outstanding under the Canadian Term Facility and the
Canadian Acquisition Facility (and the relevant Canadian Term
Commitment and Canadian Acquisition Commitment shall be reduced by
such amount), in each case in accordance with Section 2.09 hereof.
Such payment of Net Proceeds shall be made within five Business Days
of the receipt of such Net Proceeds. The payment of U.S.$8,400,000
(the "July 2001 Asset Sale Proceeds Payment") required to be paid to
the Administrative Agent in respect of the disposition of the
Borrower's construction division on or before July 31, 2001 shall not
be required to be paid on or before such date and shall be deferred
and paid on the earlier of (i) the receipt by the Borrower of any
Automotive Receivables (the amounts of which receivables shall be paid
and applied to the July 2001 Asset Sale Proceeds Payment, in full or
partial payment of the July 2001 Asset Sale Proceeds Payment, as and
when any such receivable
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is received by a Borrower or any Subsidiary); and (ii) October
31, 2001.
(f) There shall be added to Section 2.04 the following section:
"2.04(8). "The July 2001 Asset Sale Proceeds Payment shall be
applied to Accommodations Outstanding in priority to any other
payment required to be made hereunder or the Bracknell Limited
Partnership Facility from the proceeds of any disposition of
assets (whether voluntary, pursuant to the Credit Documents or
otherwise), any Debt, any issue of shares, options, warrants,
securities or capital contribution, in priority to any other
regularly scheduled payment of principal pursuant to this Section
2.04 or pursuant to Section 2.04 of the Bracknell Limited
Partnership Facility. Until amounts sufficient to pay in full the
July 2001 Asset Sale Proceeds Payment have been applied to
Accommodations Outstanding by the Administrative Agent, all
proceeds from any disposition of assets (whether voluntary,
pursuant to the Credit Documents or otherwise), any Debt, any
issue of shares, options, warrants, securities or capital
contribution shall be applied to Accommodations Outstanding as
the July 2001 Asset Sale Proceeds Payment is required to be
applied."
5. Amendment to Article 3. Article 3 is amended as follows:
(a) Section 3.01(3) shall be amended by deleting the phrase "Lender
agrees" and substituting therefor the phrase "Lenders agree".
(b) Section 3.01(10) shall be amended to read as follows:
"A U.S. Alternate Operating Lender shall not make any
Accommodation under the U.S. Alternate Operating Facility after
it has received written notice from the Administrative Agent that
an Event of Default has occurred and is continuing. Upon receipt
of such notice, each U.S. Alternate Operating Lender shall advise
the Administrative Agent of the amount of Accommodations
Outstanding under the U.S. Alternate Operating Facility. In such
event (i) the U.S. Operating Commitment of the Foreign Lenders
under the U.S. Operating Facility shall be deemed to have been
increased by the amount of the Accommodations Outstanding under
the U.S. Alternate Operating Facility; (ii) each U.S. Alternate
Operating Lender's U.S. Operating Commitment shall be deemed to
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have been increased rateably by the amount of the Accommodations
Outstanding under the U.S. Alternate Operating Facility; (iii)
the amount of each U.S. Alternate Operating Lender's U.S.
Alternate Operating Commitment shall be reduced to zero; and (iv)
a Borrowing of Advances under the U.S. Operating Facility (each
such Borrowing, a "U.S. Mandatory Borrowing") shall be made on
the next Business Day by all Foreign Lenders with U.S. Operating
Commitments so that immediately after such U.S. Mandatory
Borrowing, each Foreign Lender shall share rateably in the
Accommodations Outstanding under the U.S. Operating Facility
(based on their respective Lender's U.S. Operating Commitments
after giving effect to the deemed increases referred to in (i)
and (ii)) and the proceeds thereof shall be applied directly by
the Administrative Agent to rateable repayment of each U.S.
Alternate Operating Lender's Accommodations Outstanding under the
U.S. Alternate Operating Facility. Each relevant Foreign Lender
shall make Advances pursuant to a U.S. Mandatory Borrowing in the
amount and in the manner specified in writing by the
Administrative Agent notwithstanding (v) that the amount of the
U.S. Mandatory Borrowing may not comply with the minimum amount
of Borrowings otherwise required under this Agreement, (vi) that
the conditions precedent specified in Article 6 are not
satisfied, (vii) the date of the U.S. Mandatory Borrowing, and
(viii) any reduction in the U.S. Operating Commitment after any
Advances under the U.S. Alternate Operating Commitment were made.
If any U.S. Mandatory Borrowing cannot for any reason be made on
the date required above or the applicable Foreign Lenders for any
reason would not at such time share rateably in the aggregate
amount of the Accommodations Outstanding under the U.S. Alternate
Operating Facility and the U.S. Operating Facility, each Foreign
Lender with a U.S. Operating Commitment hereby agrees that it
shall forthwith purchase from the U.S. Alternate Operating
Lenders, and each other Foreign Lender with a U.S. Operating
Commitment, such participations in the Advances outstanding under
the U.S. Operating Facility as shall be necessary to cause such
Foreign Lender to share in such Advances rateably, based upon the
proportion which each such Lender's U.S. Operating
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Commitment at the date of the U.S. Mandatory Borrowing bears to
the aggregate amount of the U.S. Operating Commitment and the
U.S. Alternate Operating Commitment on the date of the U.S.
Mandatory Borrowing."
(c) Section 3.02(3) shall be amended by deleting the phrase "the U.S.
Alternate Operating Lender" and substituting therefor the phrase "a
U.S. Alternate Operating Lender".
6. Amendment to Article 7. Article 7 is amended as follows:
(a) Section 7.01(f) shall be deleted and the following substituted
therefor:
"(f) Locations of Businesses and Bank Accounts. As of July 30,
2001, the only jurisdiction (or registration districts within
such jurisdictions) in which a Borrower or any Restricted
Subsidiary has any place of business or stores any tangible
personal property are listed in Schedule 7.01(f) - Part 1. As of
July 30, 2001, the only bank accounts that the Borrower or any
Restricted Subsidiary maintains with any Person are listed in
Schedule 7.01(f) - Part 2."
7. Amendment to Article 8. Article 8 is amended as follows:
(a) Section 8.01(h) is deleted and the following substituted therefor:
"(h) Conduct of Business, Hedging Policy and Bank Accounts.
Conduct, and cause each of the Restricted Subsidiaries to
conduct, in each Financial Year, the Business in accordance with
good business practice; maintain, and cause each of the
Restricted Subsidiaries to maintain, a hedging policy of not
speculating in commodities; maintain, and cause each of the
Restricted Subsidiaries to maintain, any and all of their bank
accounts with one or more of the Lenders (and not any other
Person); and deposit, and cause each of the Restricted
Subsidiaries, to deposit all monies from time to time by a
Borrower or any Restricted Subsidiary to such bank accounts."
(b) Section 8.02(i) shall be deleted and the following substituted
therefor:
"(i) Investments. Make or permit any of the Restricted
Subsidiaries to make, any Investment in any Person,
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except for (i) inter-company loans and Investments between a
Borrower and a Borrower or a Restricted Subsidiary or between
Restricted Subsidiaries provided that the inter-company loans are
evidenced by a promissory note and security satisfactory to the
Administrative Agent which have been assigned to the
Administrative Agent as Security, (ii) investments in securities
of a Borrower or a Restricted Subsidiary by another Borrower or
Restricted Subsidiary in accordance with an issuance permitted
pursuant to Section 8.02(g), and (iii) such other Investments as
the Majority Lenders may approve in writing in the exercise of
their sole discretion."
(c) Section 8.02(j) shall be deleted and the following substituted
therefor:
"(j) Acquisitions. Make or permit any of its Restricted
Subsidiaries to make, any Acquisition."
(d) Section 8.02(1) is deleted and the following substituted therefor:
"(l) Hedging. Enter into, or permit any of its Restricted
Subsidiaries, to enter into any Hedging Agreements."
(e) Section 8.02(v) is amended by deleting clauses (v) and (vi) thereof
and substituting therefor the following:
"(v) the aggregate amount of all Investments (whether by way of
cash, loans, shares or otherwise) in the Joint Ventures does not,
at any time, exceed U.S.$15,000,000; and (vi) the aggregate
amount of the Investment (whether by way of cash, loans, shares
or otherwise) in any one Joint Venture, does not exceed, at any
time, U.S.$5,000,000."
(f) Section 8.03 is amended by deleting Section 8.03(a), (b), (c), (d),
and (e) thereof and substituting the following therefor:
"(a) Total Debt to Capitalization. Ensure, at all times, that Total
Debt does not exceed (i) 75% of Capitalization for the Financial
Quarter ended April 30, 2000 and July 31, 2000; (ii) 65% of
Capitalization for the Financial Quarters ended October 31, 2000
and January 31, 2001; (iii) 55% of Capitalization for the
Financial Quarter ended July 31, 2001; and (iv) 50% of
Capitalization for each Financial Quarter thereafter.
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(b) Maintenance of Total Net Debt to Consolidated EBITDA Ratio. Maintain,
at all times, a maximum ratio, calculated at the end of each Financial
Quarter for the four consecutive Financial Quarters then ended, of
Total Net Debt to Consolidated EBITDA of (i) 4.25:1 for the Financial
Quarter ended April 30, 2000; (ii) 3.75:1 for the Financial Quarter
ended July 31, 2000; (iii) 3.50:1 for the Financial Quarters ended
October 31, 2000 and January 31, 2001; (iv) 3.65:1 for the Financial
Quarter ended July 31, 2001; and (iv) 3.0:1 thereafter.
(c) Maintenance of Interest Coverage Ratio. Maintain, at all times, a
minimum ratio, calculated as at the end of each Financial Quarter for
the four consecutive Financial Quarters then ended, of Consolidated
EBITDA to Consolidated Interest Expense of 3.0:1 for such Financial
Quarter.
(d) Maintenance of Debt Service Ratio. Maintain, at all times, a minimum
ratio, calculated at the end of each Financial Quarter of Consolidated
EBITDA to Consolidated Debt Service of (i) 1.25:1 for the Financial
Quarters ended April 30, 2000 and July 31, 2000; (ii) 1.50:1 for the
Financial Quarters ended October 31, 2000, January 31, 2001, April 30,
2001 and October 31, 2001; (iii) 1.10:1 for the Financial Quarter
ended July 31, 2001; and (iv) 1.75:1 for each Financial Quarter
thereafter based on the four Consecutive Financial Quarters then ended
and Consolidated Debt Service shall be calculated on Bracknell's
reasonable projections for the four following Financial Quarters.
(e) Senior Net Debt to Consolidated EBITDA Ratio. Maintain, at all times,
a maximum ratio, calculated at the end of each Financial Quarter of
Senior Net Debt to Consolidated EBITDA of (i) 3.5:1 for the Financial
Quarters ended April 30, 2000 and July 31, 2000; (ii) 3.25:1 for the
Financial Quarters ended October 31, 2000 and January 31, 2001; (iii)
3.0:1 for the Financial Quarters ended April 30, 2001 and October 31,
2001; (iv) 3.65:1 for the Financial Quarter ended July 31, 2001 and
(v) 2.5:1 for each Financial Quarter thereafter. The foregoing ratios
shall be reduced by 0.25:1 for each U.S.$25,000,000 of Subordinated
Debt incurred by Bracknell at any time following the date hereof,
provided
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that (i) any such adjustment shall be made commencing and shall
be effective in the Financial Quarter immediately following the
receipt of the Net Proceeds of such Subordinated Debt by
Bracknell; and (ii) at no time shall the ratio of Senior Net Debt
to Consolidated EBITDA be less than 2.5:1."
8. Amendment to Article 10. Article 10 is amended as follows:
(a) Section 10.1 shall be amended by adding at the end thereof the
following as Section 10.1(5):
"(5) For the purposes and in respect only of any amendment or
restatement of this Agreement after August 1, 2001, the Lenders'
Canadian Term Commitments and the Accommodations Outstanding under the
Canadian Term Facility shall calculated as though the July 2001 Asset
Sale Proceeds Payment had been made in full by the Borrowers, applied
to the Accommodations Outstanding under the Canadian Term Facility and
the Lenders' Canadian Term Commitments reduced in accordance with
Section 2.04."
(b) Section 10.05(1) shall be amended by inserting the phrase "(subject to
Section 2.04(8))" immediately following the word "rateably" in line
four thereof.
9. Amendment to Signature Pages. The signature pages to the Third Amended and
Restated Credit Agreement shall be amended by (i) adding the phrase and the
amount "U.S. Alternate Operating Commitment: U.S.$1,750,000 opposite the name of
Xxxxx Fargo Bank, N.A.; and (iii) adding the phrase and the amount "U.S.
Alternate Operating Commitment: U.S.$3,000,000" opposite the name of Bank of
America, N.A..
10. Engagement of PriceWaterhouseCoopers and Other Advisors. The Borrowers will
(i) provide, and will cause their respective Subsidiaries to provide, unimpeded
access to PriceWaterhouseCoopers and its affiliates, and any additional advisors
retained by PriceWaterhouseCoopers, or Xxxxxx Xxxxxxx or Xxxxxx & Xxxxxxx, the
Lenders' Canadian and U.S. counsel, respectively, to all information concerning
the Borrowers and their respective Subsidiaries and each of their respective
business affairs as may be reasonably required by PWC to enable it to carry out
its mandate as set out in the PWC Engagement Consent (as defined below), and
(ii) fully cooperate with PriceWaterhouseCoopers' or any other advisor's
investigations in carrying out its mandate as set out in the PWC Engagement
Consent (as defined below), all in accordance with the provisions of the
consent, authorization and acknowledgement (the "PriceWaterhouseCoopers
Engagement Consent") of the
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engagement of PriceWaterhouseCoopers by Xxxxxx Xxxxxxx and Xxxxxx & Xxxxxxx
dated as of July 30, 2001 executed by the Borrowers and any other applicable
consent, authorization or acknowledgement, including direct access to employees
and other representatives of the Borrowers and their respective Subsidiaries
concerned to discuss and receive back-up and other factual information to verify
any and all information required by the Lenders in connection with this
Bracknell Amending Agreement (2001-1), the PriceWaterhouseCoopers Engagement
Consent and any other applicable consent, authorization or acknowledgement.
11. Amending Fee. The Borrowers shall pay to the Administrative Agent, on
account of the Lenders (to be shared rateably by them) (i) on the date hereof, a
fee in an amount equal to 20 basis points of Commitments on the date hereof; and
(ii) on October 31, 2001, a fee in an amount equal to 50 basis points of
Commitments on the date hereof.
12. Reference to and Effect on the Third Amended and Restated Credit Agreement.
On and after the date hereof, each reference in the Third Amended and Restated
Credit Agreement to "this agreement", "hereunder", "hereof", "herein", or words
of like import, and each reference to the Third Amended and Restated Credit
Agreement in the Credit Documents and any and all agreements, documents and
instruments delivered by all or any one or more of the Borrowers or any
Subsidiary or any other Person shall mean and be a reference to the Third
Amended and Restated Credit Agreement as amended hereby. Except as specifically
amended hereby, the Third Amended and Restated Credit Agreement shall remain in
full force and effect and is hereby ratified and confirmed.
13. No Waiver, etc. The execution, delivery and effectiveness of this Bracknell
Amending Agreement (2001-1) shall not, except as expressly provided herein,
operate as a waiver of any right, power or remedy of the Lenders under the Third
Amended and Restated Credit Agreement or any of the Credit Documents nor
constitute a waiver of any provision of any of the Third Amended and Restated
Credit Agreement or any Credit Document.
14. Governing Law. This Bracknell Amending Agreement (2001-1) shall be governed
by and construed in accordance with the laws of the Province of Ontario and of
Canada applicable therein.
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IN WITNESS WHEREOF the parties hereto have executed this Bracknell
Amending Agreement (2001-1) as of the date first set forth above.
BRACKNELL CORPORATION
Per:________________________________
Authorized Signing Officer
Per:________________________________
Authorized Signing Officer
BRACKNELL CORPORATION (USA) INC.
Per:________________________________
Authorized Signing Officer
Per:________________________________
Authorized Signing Officer
THE STATE GROUP LIMITED
Per:________________________________
Authorized Signing Officer
Per:________________________________
Authorized Signing Officer
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ROYAL BANK OF CANADA, as
Administrative Agent
Per:________________________________
Authorized Signing Officer
Per:________________________________
Authorized Signing Officer
ROYAL BANK OF CANADA
Per:________________________________
Authorized Signing Officer
Per:________________________________
Authorized Signing Officer
CANADIAN IMPERIAL BANK OF COMMERCE
Per:________________________________
Authorized Signing Officer
Per:________________________________
Authorized Signing Officer
THE TORONTO-DOMINION BANK
Per:________________________________
Authorized Signing Officer
Per:________________________________
Authorized Signing Officer
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XXXX XX XXXXXXX XXXXXX
Per:________________________________
Authorized Signing Officer
BANK OF MONTREAL
Per:________________________________
Authorized Signing Officer
Per:________________________________
Authorized Signing Officer
BANK ONE, N.A., CANADA BRANCH
Per:________________________________
Authorized Signing Officer
Per:________________________________
Authorized Signing Officer
COMERICA BANK - CANADA
Per:________________________________
Authorized Signing Officer
Per:________________________________
Authorized Signing Officer
ROYAL BANK OF CANADA
Per:________________________________
Authorized Signing Officer
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CIBC INC.
Per:________________________________
Authorized Signing Officer
Per:________________________________
Authorized Signing Officer
TORONTO DOMINION (TEXAS) INC.
Per:________________________________
Authorized Signing Officer
Per:________________________________
Authorized Signing Officer
BANK OF AMERICA, N.A.
Per:________________________________
Authorized Signing Officer
Per:________________________________
Authorized Signing Officer
BANK OF MONTREAL
Per:________________________________
Authorized Signing Officer
Per:________________________________
Authorized Signing Officer
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BANK ONE, KENTUCKY, N.A.
Per:________________________________
Authorized Signing Officer
Per:________________________________
Authorized Signing Officer
COMERICA BANK
Per:________________________________
Authorized Signing Officer
Per:________________________________
Authorized Signing Officer
XXXXXXX XXXXX CAPITAL CORP.
Per:________________________________
Authorized Signing Officer
Per:________________________________
Authorized Signing Officer
XXXXX FARGO BANK, NA.
Per:________________________________
Authorized Signing Officer
Per:________________________________
Authorized Signing Officer
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FIRSTAR BANK, NA.
Per:________________________________
Authorized Signing Officer
Per:________________________________
Authorized Signing Officer
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Guarantors' Acknowledgement and Confirmation
Acknowledgement and confirmation made as of July 30, 2001 by Bracknell
Corporation, The State Group Limited, The State Services Group Limited,
Bracknell Telecommunication Services Inc. (collectively referred to as the
"Canadian Guarantors"), and 354709 Alberta Ltd. and 000000 Xxxxxxx Ltd.
(collectively referred to as the "Non-U.S. Subsidiaries"), and Bracknell
Corporation (USA) Inc., Highlight Wireless Solutions Inc. ("Highlight"), and
Eagle Electric Holdings, Inc. (Minnesota), Eagle Electric Holdings, Inc.
(Delaware), Eagle Electrical Systems, Inc., Southwest Systems Limited, Xxxxxxx
Electric Holdings, Inc., Xxxxxxx-Xxxxx Company, Xxxxxxx Electric Co., Xxxx
Electric, Inc., Xxxx Equipment Company, LLC, Xxxxxxxxx Electric Co., Inc.,
Sylvan Industrial Piping, Inc. (Michigan), Sunbelt Integrated Trade Services,
Inc., Xxxxxx Industries, LLC, Quality Mechanical Contractors, Inc., Xxxxxxx &
Xxxxxx, Inc. and Bracknell Facilities Services, Inc. (collectively, the
"Nationwide Subsidiaries"), and The State Group International Limited, The State
Group (USA) Limited, Preferred Electric, Inc., Preferred Electric Construction
Corporation, Highlight Solutions, Inc. (collectively referred to as, the "State
Subsidiaries") (the Nationwide Subsidiaries and the State Subsidiaries are
collectively referred to herein as the "U.S. Subsidiaries"), and 1406883 Ontario
Limited and 3041768 Nova Scotia Company (collectively referred to as, the
"Canadian Finance Subsidiaries"), and Bracknell B (Wyoming) LLC, Bracknell A
(Wyoming) LLC and Bracknell Limited Partnership (collectively referred to as,
the "Finance Subsidiaries"), and Xxxxxx Management Corporation, Adesta
Communications, Inc., Adesta Ventures, Inc., Adesta of Colorado, Inc. and Able
Telcom Do Brasil (collectively referred to as, the "Able Restricted
Subsidiaries"), and Able Telcom International, Inc., Able Wireless, Inc., Adesta
Transportation, Inc., MFS TransTech, Inc. and Adesta of the District of
Columbia, Inc. (collectively referred to as, the "Able Guarantors"), and
Bracknell GP L.L.C., Bracknell L.P., L.L.C. and Bracknell Investments, L.P.
(collectively referred to as, the "New Entities") to and in favour of Royal Bank
of Canada, as Administrative Agent.
Reference is made to: (i) the Third Amended and Restated Credit Agreement;
(ii) the amended and restated guarantee dated as of July 21, 2000 provided by
each of the Canadian Guarantors in favour of the Administrative Agent and such
other parties as listed therein (each, a "Canadian Guarantee"); (iii) the
guarantee dated as of December 22, 2000 provided by Highlight in favour of the
Administrative Agent and such other parties as listed therein (the "Highlight
Guarantee"); (iv) the amended and restated guarantee dated as of July 21, 2000
provided by each of the Non-U.S. Subsidiaries in favour of the Administrative
Agent and such other parties as listed therein (each, a "Non-U.S. Guarantee");
(v) the amended and restated guarantee and collateral agreement dated as of July
21, 2000 made by each of the U.S. Subsidiaries in favor of the Administrative
Agent and such other parties as listed therein (the "Amended and Restated
Guarantee and Collateral Agreement");
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(vi) the guarantee dated as of July 21, 2000 made by each of the Canadian
Finance Subsidiaries in favor of the Administrative Agent and such other parties
as listed therein (the "Canadian Finance Subsidiary Guarantee"); (vii) the
guarantee and collateral agreement dated as of July 21, 2000 made by each of the
Finance Subsidiaries in favor of the Administrative Agent and such other parties
as listed therein (the "Finance Subsidiary Guarantee and Collateral Agreement");
(viii) the assumption agreement dated as of December 22, 2000 made by each of
the Able Restricted Subsidiaries and, as to the guarantee only, each of the Able
Guarantors, in favor of the Administrative Agent, pursuant to which they become
a party to the amended and restated guarantee and collateral agreement dated as
of July 21, 2000 (the "Able Guarantee and Collateral Agreement"); and (ix) the
assumption agreement dated as of May 30, 2001 made by each of the New Entities
in favor of the Administrative Agent, pursuant to which they become a party to
the amended and restated guarantee and collateral agreement dated as of July 21,
2000 (the "New Entity Guarantee and Collateral Agreement") (the Canadian
Guarantees, the Highlight Guarantee, the Non-US Guarantees, the Amended and
Restated Guarantee and Collateral Agreement, the Canadian Finance Subsidiary
Guarantee, the Finance Subsidiary Guarantee and Collateral Agreement, the Able
Guarantee and Collateral Agreement and the New Entity Guarantee and Collateral
Agreement are collectively referred to as the "Guarantees", and each a
"Guarantee").
For good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, each of the undersigned hereby acknowledges the
foregoing Bracknell Amending Agreement (2001-1) and confirms and agrees that (i)
the Guarantee executed by it in connection with the Third Amended and Restated
Credit Agreement continues to be valid and enforceable against it in accordance
with its terms as of the date hereof; and (ii) the security granted by it to the
Administrative Agent and the Lenders as security for the obligations under the
Guarantee executed by it continues to secure its obligations to the
Administrative Agent and the Lenders pursuant to the Guarantee.
In witness whereof this acknowledgement and confirmation has been executed
by the parties as of the date first above written in the Bracknell Amending
Agreement (2001-1).
BRACKNELL CORPORATION EAGLE ELECTRIC HOLDINGS, INC.
(MINNESOTA)
Per:________________________________ Per:_____________________________
Authorized Signing Officer Authorized Signing Officer
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BRACKNELL CORPORATION (USA) INC. EAGLE ELECTRIC HOLDINGS, INC.
(DELAWARE)
Per:________________________________ Per:_____________________________
Authorized Signing Officer Authorized Signing Officer
THE STATE GROUP LIMITED EAGLE ELECTRICAL SYSTEMS, INC.
Per:________________________________ Per:_____________________________
Authorized Signing Officer Authorized Signing Officer
THE STATE SERVICES GROUP LIMITED SOUTHWEST SYSTEMS LIMITED
Per:________________________________ Per:_____________________________
Authorized Signing Officer Authorized Signing Officer
BRACKNELL TELECOMMUNICATION SERVICES INC. XXXXXXX ELECTRIC HOLDINGS, INC.
Per:________________________________ Per:_____________________________
Authorized Signing Officer Authorized Signing Officer
354709 ALBERTA LTD. XXXXXXX-XXXXX COMPANY
Per:________________________________ Per:_____________________________
Authorized Signing Officer Authorized Signing Officer
334108 ALBERTA LTD. XXXXXXX ELECTRIC CO.
Per:________________________________ Per:_____________________________
Authorized Signing Officer Authorized Signing Officer
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HIGHLIGHT WIRELESS SOLUTIONS INC. XXXXXX INDUSTRIES, LLC
Per:________________________________ Per:_____________________________
Authorized Signing Officer Authorized Signing Officer
XXXX ELECTRIC, INC. QUALITY MECHANICAL CONTRACOTRS,
INC.
Per:________________________________ Per:_____________________________
Authorized Signing Officer Authorized Signing Officer
XXXX EQUIPMENT COMPANY, LLC. XXXXXXX & XXXXXX, INC.
Per:________________________________ Per:_____________________________
Authorized Signing Officer Authorized Signing Officer
XXXXXXXXX ELECTRIC CO., INC. BRACKNELL FACILITIES SERVICES,
INC.
Per:________________________________ Per:_____________________________
Authorized Signing Officer Authorized Signing Officer
SYLVAN INDUSTRIAL PIPING, INC. THE STATE GROUP INTERNATIONAL
(MICHIGAN) LIMITED
Per:________________________________ Per:_____________________________
Authorized Signing Officer Authorized Signing Officer
SUNBELT INTEGRATED TRADE 3041768 NOVA SCOTIA COMPANY
SERVICES, INC.
Per:________________________________ Per:_____________________________
Authorized Signing Officer Authorized Signing Officer
THE STATE GROUP (USA) LIMITED BRACKNELL B (WYOMING) LLC
Per:________________________________ Per:_____________________________
Authorized Signing Officer Authorized Signing Officer
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PREFERRED ELECTRIC, INC. BRACKNELL A (WYOMING) LLC
Per:________________________________ Per:_____________________________
Authorized Signing Officer Authorized Signing Officer
PREFERRED ELECTRIC BRACKNELL LIMITED PARTNERSHIP,
CONSTRUCTION CORPORATION by its general partner 1406883
Ontario Ltd.
Per:________________________________ Per:_____________________________
Authorized Signing Officer Authorized Signing Officer
HIGHLIGHT SOLUTIONS, INC. XXXXXX MANAGEMENT CORPORATION
Per:________________________________ Per:_____________________________
Authorized Signing Officer Authorized Signing Officer
1406883 ONTARIO LIMITED ADESTA VENTURES, INC.
Per:________________________________ Per:_____________________________
Authorized Signing Officer Authorized Signing Officer
ADESTA COMMUNICATIONS, INC. BRACKNELL GP L.L.C.
Per:________________________________ Per:_____________________________
Authorized Signing Officer Authorized Signing Officer
ADESTA OF COLORADO, INC. BRACKNELL L.P., L.L.C.
Per:________________________________ Per:_____________________________
Authorized Signing Officer Authorized Signing Officer
-24-
ABLE TELCOM DO BRASIL BRACKNELL INVESTMENTS, L.P., by
its general partner BRACKNELL
GP L.L.C.
Per:________________________________ Per:_____________________________
Authorized Signing Officer Authorized Signing Officer
ABLE TELCOM INTERNATIONAL,
INC.
Per:________________________________
Authorized Signing Officer
ABLE WIRELESS, INC.
Per:________________________________
Authorized Signing Officer
ADESTA TRANSPORTATION, INC.
Per:________________________________
Authorized Signing Officer
MFS TRANSTECH, INC.
Per:________________________________
Authorized Signing Officer
ADESTA OF THE DISTRICT OF COLUMBIA, INC.
Per:________________________________
Authorized Signing Officer
