EXHIBIT 10.2
SECOND AMENDMENT TO AGREEMENT
Reference is made to the Third Amended and Restated Credit Agreement
dated as of June 21, 2001, among the FirstService Corporation, as Canadian
Borrower and FirstService (USA), Inc. and FirstService Delaware, LP ("FSLP"), as
U.S. Borrowers (collectively, the "Borrowers"), the wholly-owned subsidiaries
named on the execution pages thereof, as unlimited guarantors (the
"Guarantors"), the banks named on the execution pages thereof, as lenders (the
"Lenders"), Bank One, N.A., as Syndication Agent, The Toronto-Dominion Bank, as
Collateral Agent and Canadian Administration Agent, and Toronto Dominion (Texas)
Inc., as U.S. Administration Agent, as amended by a First Amendment to Agreement
dated as of ___________, 2003 (as the same may be further amended, supplemented,
revised, replaced or restated from time to time) (the "Agreement").
THIS SECOND AMENDMENT TO AGREEMENT is executed as of the 29th day of
September, 2003 (the "Amendment Date"), by the Borrowers, the Guarantors and the
Collateral Agent.
Capitalized terms referred to and not defined herein shall have the
meanings ascribed thereto in the Agreement.
At the request of the Borrowers, the Collateral Agent has agreed,
subject to Majority Lender consent, to amend certain provisions of the Agreement
and to consent to the waiver of certain provisions thereof, but only to the
extent and subject to the limitations set forth herein.
NOW THEREFORE, for good and valuable consideration, the sufficiency of
which is hereby acknowledged, the parties hereby agree as follows:
1. WAIVER AND CONSENT
Subject to Section [8] hereof, the Collateral Agent hereby waives the
restrictions and provides the consents required pursuant to Subsections 8.2(m)
and 8.2(q) of the Agreement (as applicable) in respect of the incurrence of
further debt by the Canadian Borrower and FSLP and the granting of guarantees
and Security by such parties and, among others, their Subsidiaries, in respect
of the proposed financing in favour of the Canadian Borrower and FSLP by certain
purchasers (the "2003 Noteholders") listed on Schedule A to a Note a Guarantee
Agreement (the "2003 Note Purchase Agreement") dated as of September 29, 2003
providing, among other things, for the issuance and sale by FSLP to the 2003
Noteholders of U.S.$50,000,000 aggregate principal amount of FSLP's 6.40%
Guaranteed Senior Secured Notes due 2015 (the "2003 Notes") having the benefit
of the Guarantees executed and delivered by the Canadian Borrower with respect
to the 2003 Note Purchase Agreement and the 2003 Notes.
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2. AMENDMENT
Effective as of the Amendment Date:
(a) Section 1.1 to the Agreement is hereby amended by:
(i) deleting the reference to "U.S.$100,000,000" in the last line of
the definition of "Secured Hedging Agreements" and substituting
"U.S.$150,000,000" therefor;
(ii) deleting the reference to "U.S.$140,000,000" in the third line of
the definition of "Total Commitments" and substituting
"U.S.$90,000,000" therefor;
(iii)deleting the reference to "U.S.$100,000,000" in the first line of
the definition of "Total U.S. Commitments" and substituting
"U.S.$50,000,000" therefor; and
(iv) deleting the reference to "U.S.$96,000,000" in the second line of
the definition of "U.S. Revolving Facility Commitment" and
substituting "U.S.$46,000,000" therefor;
(b) Section 8.2(n)(ii)(I) of the Agreement is hereby amended by adding the
following immediately after the reference to "the Note Purchase
Agreement" therein:
"and the Note and Guarantee Agreement dated as of September 29,
2003, between, amongst others, the Canadian Borrower and the
purchasers listed therein (the "2003 Note Purchase
Agreement");
(c) Section 8.2(n)(ii)(J) of the Agreement is hereby amended by adding
"and the 2003 Note Purchase Agreement" immediately after the reference
to "the Note Purchase Agreement" in the third line thereof;
(d) Section 9.1(j) of the Agreement is hereby amended by adding the
following at the end thereof:
"or an Event of Default (as defined in the 2003 Note
Purchase Agreement) shall have occurred and be
continuing under the 2003 Note Purchase Agreement";
(e) The execution pages of each of the U.S. Lenders to the Agreement, are
hereby amended by deleting the Total Commitment amounts set out
therein and substituting the Total Commitment amounts set out below,
in respective of each the U.S. Lenders, as follows:
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Xxxxxxx-Xxxxxxxx (Texas), Inc. U.S.$10,700,000
Bank One, X.X. X.X.$10,700,000
CIBC Inc. U.S.$10,700,000
The Bank of Nova Scotia, New York Agency U.S.$10,700,000
Royal Bank of Canada, New York Branch U.S.$7,200,000;
(f) The execution pages hereto constituting the execution pages of NCH
Holdings Inc. ("NCH") and XXXXX NCH Promotional Services Ltd. ("WNPS")
shall constitute the execution pages to the Agreement of NCH and WNPS
as Unlimited Guarantors to the Agreement; and
(g) Schedule L to the Agreement is hereby deleted and Schedule L attached
hereto is substituted therefor.
3. NCH AND WNPS
NCH and WNPS hereby confirm that by executing this Amendment they agree
to be bound by the terms and provisions of the Agreement relating to Guarantors,
including without limitation, Article XVI thereof, and all representation,
warranties and covenants pertaining to such Guarantors thereunder, as though
having been original signatories thereto.
4. REAFFIRMATION OF OBLIGATIONS
Each of the Borrowers and each of the Guarantors:
(a) reaffirm its obligations under the Agreement; and
(b) confirms that its obligations remain in full force and effect with
respect to the Agreement,
in each case after giving effect to the waivers, consents and amendments
provided for herein.
5. REAFFIRMATION OF REPRESENTATIONS AND WARRANTIES
Each of the Borrowers and each of the Guarantors hereby represent and
warrant that as of the date of the execution of this Amendment and after giving
effect to the waivers, consents and amendments provided for herein:
(a) there exists no Default or Event of Default under the Agreement; and
(b) its representations and warranties contained in Article VIII of the
Agreement are true and correct as of such dates, except to the extent
any such
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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.
6. WAIVERS
The Waivers set out herein shall not be deemed to be a waiver of:
(a) any other default or breach of any other term or condition of the
Agreement or any other documents or other instrument executed pursuant
to the Agreement or any other documents; or
(b) any rights and remedies of the Lenders under the Agreement or any
other documents or any other instrument executed pursuant to the
Agreement or any other documents arising as a result of any other
default or breach thereunder.
7. NO OTHER CONSENT OR AMENDMENT
Except to the limited extent set forth herein:
(a) no consent to or amendment of any other term, condition, covenant,
agreement or any other aspect of the Agreement is intended or implied;
and
(b) except for the specific period of time and circumstances covered by
this agreement, no other aspect of the covenants referred to herein is
amended, including without limitation for any other period or
circumstance, and no such waiver or amendment is intended or implied.
This Amendment is therefore limited exclusively to the specific purposes and
time period for which it is given.
8. CONDITIONS TO EFFECTIVENESS
This Amendment shall become effective upon:
(a) delivery to the Collateral Agent of ten (10) originally executed
copies of this Amendment, dated the Amendment Date, as executed by the
Borrowers and Guarantors;
(b) the Collateral Agent having received executed forms of the attached
Instructing Group Consents from each of the Lenders constituting
Majority Lenders;
(c) delivery to the Collateral Agent of ten originally executed copies of
the Intercreditor Agreement (as defined below) in form and in
substance satisfactory to the Lenders and Lenders' counsel (Xxxxxx
Xxxxxxx);
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(d) delivery to the Collateral Agent of two certified copies of the 2003
Note Purchase Agreement;
(e) delivery to the Collateral Agent of all security and documents
required to be delivered under the Agreement to the Collateral Agent
and Lenders in respect of the reorganizations of the [PROPERTY
MANAGEMENT COMPANIES (i.e. CAMCO] and the [XXXXX GROUP OF COMPANIES];
(f) delivery to the Collateral Agent of certificates executed by an
officer of each of the Borrowers and Guarantors certifying that their
respective Boards of Directors have each adopted resolutions that are
in full force and effect, without modification or amendment,
authorizing the execution, delivery and performance by such Borrower
or Guarantor of this Amendment, the Intercreditor Agreement (as
defined below), the 2003 Note Purchase Agreement and the Omnibus
Amendment Agreement dated as of September 29, 2003, between, amongst
others, the Guarantors, Borrowers and the 2003 Noteholders;
(g) the Collateral Agent being satisfied with and having completed all due
diligence which it considers necessary or appropriate in its
discretion in regard to the 2003 Note Purchase Agreement and the
financing thereunder;
(h) the Collateral Agent being satisfied with all proceedings to be taken
in connection with the transactions contemplated by this Amendment,
the 2003 Note Purchase Agreement and the Amended and Restated
Intercreditor Agreement dated as of September 29, 2003, between,
amongst others, the Lenders and the 2003 Noteholders (the
"Intercreditor Agreement") and other documents or instruments incident
hereto or thereto which are contemplated in connection herewith or
therewith;
(i) payment to the Collateral Agent on behalf of the Lenders of sufficient
funds received by the Canadian Borrower and FSLP, pursuant to the 2003
Note Purchase Agreement, to reduce the outstanding Total Commitments
to U.S.$90,000,000 and to reduce the Total U.S. Commitments, as a
subset of the Total Commitments, to U.S.$50,000,000; and
(j) delivery of any other documents, opinions of legal counsel, financial
statements, and such other writings as may be required by the
Collateral Agent and Xxxxxx Xxxxxxx;
9. GUARANTOR ACKNOWLEDGEMENT
The Guarantors (i) consent to and approve the execution and delivery of
this Agreement by the parties hereto, (ii) agree that this Amendment does not
and shall not limit or diminish in any manner the obligations of the Guarantors
under the guarantees pursuant to the Agreement (the "Guarantees") and under the
Agreement as amended hereunder, and that
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such obligations would not be limited or diminished in any manner even if
the Guarantors had not executed this Amendment, (iii) agree that this Amendment
shall not be construed as requiring the consent of the Guarantors in any other
circumstance, (iv) reaffirm their obligations, representations and warranties
under the Guarantees and under the Agreement, and (v) agree that the Guarantees
and the Agreement remain in full force and effect and are hereby ratified,
continued and confirmed.
10. SECURITY
By signing this Agreement, the Borrowers and Guarantors confirm that
all security delivered to or for the benefit of the Collateral Agent on behalf
of the Lenders pursuant to the Agreement remains in full force and secures all
indebtedness, liabilities and obligations of the Borrowers and Guarantors under
the Agreement as amended by this Amendment.
11. NO NOVATION
This Amendment will not discharge or constitute novation of any debt,
obligation, covenant or agreement contained in the 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
Amendment.
12. EXPENSES
All reasonable expenses of the Collateral Agent in connection with this
Amendment and the related documentation, including all reasonable legal fees and
disbursements incurred by the Collateral Agent, shall be for the account of
Borrowers.
13. BENEFIT OF AGREEMENT
This Amendment enures to the benefit of and binds the parties and their
respective successors and permitted assigns.
14. FURTHER ASSURANCES
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 Amendment.
15. COUNTERPARTS
This Amendment may be executed in one or more counterparts, including
by way of facsimile, each of which shall be deemed to be an original, but all of
which together shall constitute one and the same instrument.
16. GOVERNING LAW
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This 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.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed as of the date first above written.
FIRSTSERVICE CORPORATION, AS THE TORONTO-DOMINION BANK, AS
CANADIAN BORROWER COLLATERAL AGENT
Per: _____________________________ Per: __________________________________
Name: Name:
Title: Title:
Per: _____________________________ Per: __________________________________
Name: Name:
Title: Title:
I/We have the authority to bind the Corporation
FIRSTSERVICE (USA), INC., AS U.S.
BORROWER
Per: _________________________________
Name:
Title:
Per: _________________________________
Name:
Title:
I/We have the authority to bind the Corporation
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FIRSTSERVICE DELAWARE, LP BY
ITS GENERAL PARTNER,
FIRSTSERVICE GP INC., AS U.S.
BORROWER
Per: _________________________________
Name:
Title:
Per: _________________________________
Name:
Title:
I/We have the authority to bind the Corporation
INTERCON SECURITY LIMITED, AS
UNLIMITED GUARANTOR
Per: _________________________________
Name:
Title:
Per: _________________________________
Name:
Title:
I/We have the authority to bind the Corporation
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ALBERTA SECURITY &
INVESTIGATION LTD., AS UNLIMITED
GUARANTOR
Per: _________________________________
Name:
Title:
Per: _________________________________
Name:
Title:
I/We have the authority to bind the Corporation
CENTURY INVESTIGATION &
SECURITY SERVICE, INC., AS
UNLIMITED GUARANTOR
Per: _________________________________
Name:
Title:
Per: _________________________________
Name:
Title:
I/We have the authority to bind the Corporation
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FIRSTSERVICE GP INC., AS UNLIMITED
GUARANTOR
Per: _________________________________
Name:
Title:
Per: _________________________________
Name:
Title:
I/We have the authority to bind the Corporation
XX XXXXX LTD., AS UNLIMITED
GUARANTOR
Per: _________________________________
Name:
Title:
Per: _________________________________
Name:
Title:
I/We have the authority to bind the Corporation
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NCH HOLDINGS INC., AS UNLIMITED
GUARANTOR
Per: _________________________________
Name:
Title:
Per: _________________________________
Name:
Title:
I/We have the authority to bind the Corporation
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XXXXX NCH PROMOTIONAL
SERVICES LTD., AS UNLIMITED
GUARANTOR
Per: _________________________________
Name:
Title:
Per: _________________________________
Name:
Title:
I/We have the authority to bind the Corporation
