Exhibit 10.2.5
SECOND BRACKNELL AMENDING AGREEMENT (2001-2)
--------------------------------------------
Second Amending Agreement (2001-2) dated as of September 19, 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, as amended by an amending agreement
dated as of July 30, 2001 (collectively 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 certain scheduled principal payments from October 31, 2001 to
December 21, 2001; (ii) provide an additional revolving credit facility in an
aggregate principal amount of U.S.$20,000,000; (iii) change the levels of
compliance for the financial covenants applicable for the Financial Quarters
ending October 31, 2001 and January 31, 2002; and (iv) address various other
matters;
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 Second Bracknell Amending
Agreement (2001-2) and the recitals hereto as therein defined.
2. Amendment to Schedules. Schedule 1.01 (Priority Accounts Payable) annexed
hereto shall be inserted after Schedule 1 to the Third Amended and Restated
Credit Agreement and before Schedule 2 thereof. Schedule 6 to the Third Amended
and Restated Credit Agreement shall be deleted and the Schedule 6 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 "Acquisition of Control" and before the
definition of "Administrative Agent":
-2-
"`Adesta' means Adesta Communications, Inc. and its
subsidiaries.
`Adesta Plan' has the meaning ascribed thereto in
Section 8.01(u)."
(b) The following definition shall be added immediately following
the definition of "Agreement" and before the definition of
"Annual Business Plan":
"`Amending Date' means the date of the Second
Amending Agreement (2001-2)."
(c) The definition of "Applicable Margins" shall be amended by
adding to the last sentence thereof the following phrase ",
provided that as of December 21, 2001, the Applicable Margin
in respect of Canadian Prime Rate Advances, U.S. Prime Rate
Advances or U.S. Base Rate Advances under the Canadian Term
Facility, the Canadian Acquisition Facility and the Bracknell
Limited Partnership Credit Facility shall each be 500 basis
points".
(d) The following definition shall be added immediately following
the definition of "Canadian Mandatory Borrowing" and before
the definition of "Canadian Operating Commitment":
"`Canadian New Tranche Facility' means the revolving
operating credit facility to be made available, as a
sub-facility of the Canadian Operating Facility, to
Bracknell and State by the New Tranche Lenders which
are Domestic Lenders under this Agreement for the
purposes set out in Section 2.03."
(e) The definition of "Canadian Operating Facility" is amended by
adding to the end thereof the phrase ", the Core Canadian
Operating Facility to be made available by the Domestic
Lenders and the Canadian New Tranche Facility to be made
available by the New Tranche Lenders which are Domestic
Lenders".
(f) The definition of "Consolidated Net Worth" is amended by
adding to the end thereof the following phrase "; provided
that, when used in connection with the calculation of
Capitalization, Consolidated Net Worth shall be calculated
after adding back thereto any write-downs of goodwill during
the applicable Financial Quarter".
(g) The definition of "Commitment" shall be deleted and the
following substituted therefor:
-3-
""Commitment" means, at any time, in respect of (i)
the Canadian Term Facility, U.S.$25,000,000 (as
reduced pursuant to Article 2, the "Canadian Term
Commitment"); (ii) the Canadian Acquisition Facility,
U.S.$5,000,000 (as reduced pursuant to Article 2, the
"Canadian Acquisition Commitment"); (iii) the
Canadian Operating Facility, U.S.$33,000,000 (which
includes the Core Canadian Operating Commitment, the
Canadian Swingline Commitment and the Canadian New
Tranche Commitment) (as reduced or increased pursuant
to Articles 2 and 3, the "Canadian Operating
Commitment"), (iv) the Core Canadian Operating
Facility, U.S.$25,000,000 (as reduced pursuant to
Article 2, the "Core Canadian Operating Commitment"),
(v) the Canadian Swingline Facility, U.S.$5,000,000
(as reduced pursuant to Article 2, the "Canadian
Swingline Commitment"), (vi) the Canadian New Tranche
Facility, U.S.$8,000,000 (as reduced pursuant to
Article 2, the "Canadian New Tranche Commitment"),
(vii) the U.S. Operating Facility, U.S.$107,000,000
(which includes the Core U.S. Operating Commitment,
the U.S. Alternate Operating Commitment and the U.S.
New Tranche Commitment) (as reduced pursuant to
Article 2, the "U.S. Operating Commitment"), (viii)
the Core U.S. Operating Facility, U.S.$95,000,000 (as
reduced pursuant to Article 2, the "Core U.S.
Operating Commitment"), (ix) the U.S. Alternate
Operating Facility, U.S.$9,750,000 (as reduced
pursuant to Article 2, the "U.S. Alternate Operating
Commitment") and (x) the U.S. New Tranche Facility,
U.S.$12,000,000 (as reduced pursuant to Article 2,
the "U.S. New Tranche Commitment") and a "Lender's
Canadian Term Commitment", "Lender's Canadian
Acquisition Commitment", "Lender's Canadian Operating
Commitment", "Lender's Core Canadian Operating
Commitment", "Lender's Canadian Swingline
Commitment", "Lender's Canadian New Tranche
Commitment", "Lender's U.S. Operating Commitment",
"Lender's Core U.S. Operating Commitment", "Lender's
U.S. Alternate Operating Commitment" and "Lender's
U.S. New Tranche Commitment" means, at any time, the
relevant amount designated as such and set forth
opposite the Lender's name on the signature pages and
a "Lender's Commitment" means, at any time, the total
of the amounts set forth opposite a Lender's name on
the signature pages (as increased pursuant to Section
2.10 or reduced pursuant to Articles 2 and 3)."
-4-
(h) The following definitions shall be added immediately following
the definition of "Consolidated Net Worth" and before the
definition of "Credit Documents":
"`Core Canadian Operating Facility' means the
revolving operating credit facility to be made
available, as a sub-facility of the Canadian
Operating Facility, to Bracknell and State by the
Lenders which are Domestic Lenders under this
Agreement for the purposes set out in Section 2.03."
"`Core U.S. Operating Facility' means the revolving
operating credit facility to be made available, as a
sub-facility of the U.S. Operating Facility, to
Nationwide by the Lenders which are Foreign Lenders
under this Agreement for the purposes set out in
Section 2.03."
(i) The following definitions shall be added immediately following
the definition of "Majority Lenders" and before the definition
of "Material Adverse Effect":
"`Majority New Tranche Lenders' means (i) at all
times after the occurrence of an Event of Default and
during its continuance, New Tranche Lenders who,
taken together, are beneficially entitled to at least
66-2/3% of the aggregate Accommodations Outstanding
under the New Tranche Facilities, and (ii) at all
other times, New Tranche Lenders whose Commitments
under the New Tranche Facilities, taken together, are
at least 66-2/3% of the aggregate amount of the
Commitments under the New Tranche Facilities."
"`Master Services Agreement' means the amended and
restated master services agreement, dated as of
August 24, 2000, between MCI Worldcom Network
Services, Inc. and Able Telcom Holding Corp. (now
Bracknell Corporation (U.S.A.), Inc.)."
(j) The definition of "Net Proceeds" is amended by adding to the
end thereof the following phrase "; and (iv) with respect to
receipt of any proceeds from Specified Litigation, an amount
equal to the amount received in cash (including any cash
received by way of deferred payment pursuant to a note
receivable or other non-cash consideration but only as and
when such cash is received) in connection with any such
Specified Litigation less all reasonable fees (including,
without limitation, reasonable legal fees), other
out-of-pocket expenses incurred or paid for by such Person in
connection with the Specified Litigation and any amounts
payable by the relevant Borrower or Restricted
-5-
Subsidiary pursuant to the terms of the damage award or
settlement agreement made in connection with the Specified
Litigation".
(k) The following definitions shall be added immediately following
the definition of "Network Development Business" and before
the definition of "Non-Consenting Lender":
"`New Tranche Facilities' means collectively the
Canadian New Tranche Facility and the U.S. New
Tranche Facility, and, in the singular, either of
them."
"`New Tranche Lenders' mean, collectively, the
Lenders which have either a Canadian New Tranche
Commitment or a U.S. New Tranche Commitment, and, in
the singular, any of them."
(l) The following definitions shall be added immediately following
the definition of "Other Currency" and before the definition
of "Owned Properties":
"`OTPP' means the Ontario Teachers' Pension Plan
Board."
"`OTPP Investments' means collectively the common
share and rights offerings of, in the aggregate, not
less than U.S.$120 million, by Bracknell agreed with
OTPP pursuant to a purchase agreement dated September
19, 2001, between OTPP and Bracknell."
(m) The definition of "Priority Accounts Payable" is deleted in
its entirety and the following substituted therefor:
"`Priority Accounts Payable' means those accounts
payable of Borrowers and certain Restricted
Subsidiaries identified by Bracknell as priority
accounts payable, listed in Schedule 1.01 hereto."
(n) The following definition shall be added immediately following
the definition of "Senior Net Debt" and before the definition
of "State":
"`Specified Litigation' means any litigation, claim
or commercial dispute relating to work performed by a
Borrower or any Restricted Subsidiary, other than
Adesta, with respect to which the claim or disputed
amount is, or which results in net proceeds to a
Borrower or any Restricted Subsidiary, other than
Adesta, in excess of U.S.$1 million."
-6-
(o) The following definition shall be added immediately following
the definition of "U.S. Mandatory Borrowing" and before the
definition of "U.S. Operating Facility":
"`U.S. New Tranche Facility' means the revolving
operating credit facility to be made available, as a
sub-facility of the U.S. Operating Facility, to
Nationwide by the New Tranche Lenders which are
Foreign Lenders under this Agreement for the purposes
set out in Section 2.03."
(p) The definition of "U.S. Operating Facility" is amended by
adding to the end thereof the phrase ", the Core U.S.
Operating Facility to be made available by the Foreign Lenders
and the U.S. New Tranche Facility to be made available by the
New Tranche Lenders which are Foreign Lenders".
4. Amendments to Article 2. Article 2 is amended as follows:
(a) Section 2.01(1) shall be amended by deleting the phrase "(ii)
Bankers' Acceptances pursuant to Article 4 under the Canadian
Operating Facility, the Canadian Acquisition Facility and the
Canadian Term Facility, and (iii)" and substituting therefor
the phrase " and, (ii)".
(b) Section 2.01 shall be amended by adding to the end thereof the
following as Section 2.01(8):
"(8) No Accommodations are available under the
Canadian New Tranche Facility until the Core Canadian
Operating Facility is fully drawn by Bracknell and
State. No Accommodations are available under the U.S.
New Tranche Facility until the Core U.S. Operating
Facility is fully drawn by Nationwide."
(c) Section 2.02(2) shall be amended by inserting at the end of
the first sentence thereof the phrase "provided that any
amount repaid under the New Tranche Facilities pursuant to
Section 2.04 cannot be reborrowed and reduces the relevant
Commitments (and each Lender's relevant Commitments rateably)
by the amount repaid".
(d) Section 2.02(4) shall be deleted and the following substituted
therefor:
"(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.$97,250,000, the U.S. Alternate Operating
Commitment shall be reduced, and each U.S. Alternate
Operating Lender's U.S. Alternate Operating
-7-
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.$97,250,000. 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."
(e) Section 2.03(1) shall be amended by adding at the end thereof
the following phrase ", provided that proceeds of
Accommodations under the Canadian New Tranche Facility shall
be used for the payment of Priority Accounts Payables first,
and thereafter for general corporate purposes as provided in
this sentence above".
(f) Section 2.03(2) shall be amended by adding at the end thereof
the following phrase ", provided that proceeds of
Accommodations under the U.S. New Tranche Facility shall be
used for the payment of Priority Accounts Payables first, and
thereafter for general corporate purposes as provided in this
sentence above".
(g) Section 2.04(2) shall be deleted and the following substituted
therefor:
"(2) 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 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 payments required to be
made on July 31, 2001 and October 31, 2001 in
accordance with immediately preceding (i) shall not
be required to be made on July 31, 2001 and October
31, 2001, as the case may
-8-
be, and shall be deferred to and paid on December 21,
2001."
(h) Section 2.04(4) shall be deleted and the following substituted
therefor:
"(4) Subject to the last sentence of this Section
2.04(4), if a Borrower or a Restricted Subsidiary
issues any shares, options, warrants or securities
convertible into shares or other securities, receives
a capital contribution from any Person, incurs any
Subordinated Debt, or receives any proceeds from any
Specified Litigation, whether by way of damages
award, settlement, insurance recoveries or otherwise,
an amount equal to 100% of the Net Proceeds shall be
paid (i) firstly, to the Administrative Agent, for
the account of the Lenders to be applied pro rata to
the prepayment of Accommodations Outstanding under
the New Tranche Facilities (and the relevant New
Tranche Commitments shall be reduced by such amount);
(ii) secondly, to the Administrative Agent, for the
account of the Lenders to be applied pro rata to the
July 2001 Asset Sale Proceeds Payment; (iii) thirdly,
to repay amounts outstanding under, and permanently
cancel, the Bracknell Limited Partnership Facility;
(iv) fourthly, to the Administrative Agent, for the
account of the Lenders to be applied pro rata 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); and (v) fifthly, to the
Administrative Agent for the account of the Lenders
to be applied to the prepayments of Accommodations
Outstanding under the remaining Operating Facilities.
Such payment shall be made within 5 Business Days of
receipt of the Net Proceeds. At any time that a
Borrower or a Restricted Subsidiary incurs any
Subordinated Debt, a leverage ratio acceptable to the
Lenders and the Borrowers shall be established and
this Agreement shall be amended accordingly. No
payment of Net Proceeds shall be required to be paid
pursuant to this subsection if the Net Proceeds have
been received by a Restricted Subsidiary or a
Borrower (other than Bracknell) as a result of (x)
the issuance of securities to another Restricted
Subsidiary or to a Borrower, (y) a capital
contribution by a Restricted Subsidiary or a
Borrower, or (z) the incurrence of
-9-
Subordinated Debt owing to a Borrower or a Restricted
Subsidiary by another Borrower or Restricted
Subsidiary."
(i) Section 2.04(5) shall be deleted and the following substituted
therefor:
"(5) Subject as provided in the last sentence of this
Section 2.04(5), if a Borrower or a Restricted
Subsidiary makes a disposition of assets as permitted
in Section 8.02(d)(vi), 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 (i) firstly, under the New Tranche
Facilities (and the relevant New Tranche Commitments
shall be reduced by such amount); and (ii) secondly,
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) to be applied 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."
(j) Section 2.04(8) shall be deleted and the following substituted
therefor:
"(8) The July 2001 Asset Sale Proceeds Payment
scheduled to be made pursuant to Section 2.04(6)
shall be applied rateably to 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). All
payments, repayments or prepayments required to be
made under this Agreement other than the scheduled
July 2001 Asset Sale Proceeds Payment, shall be
applied to repayment of the New Tranche Facilities
(and the relevant New Tranche Commitments shall be
reduced by such amount) 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
Accommodations Outstanding under, and the fees
relating to, the New Tranche Facilities have been
applied to
-10-
such Accommodations Outstanding and fees 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 under, and the fees
relating to, the New Tranche Facilities."
(k) Section 2.06(3) shall be amended by adding at the end thereof
the following phrase "or in the definition of `Applicable
Margins'".
5. Amendment to Article 3. Article 3 is amended as follows:
(a) Section 3.01(5) shall be amended by deleting the phrase "and
Libor Rate Advances" in every instance.
(b) Section 3.01(8) shall be deleted and the following substituted
therefore:
"(8) Each Borrowing under the Canadian Term Facility,
the Canadian Acquisition Facility and the Canadian
Operating Facility shall be in minimum amounts of (i)
the lesser of (a) Cdn. $2,000,000 and (b) the amount
available under the Canadian Operating Facility, and
Cdn. $1,000,000 multiples thereof in the case of
Canadian Dollar Advances, and (ii) the lesser of (a)
U.S. $2,000,000 and (b) the amount available under
the Canadian Operating Facility, and U.S. $1,000,000
multiples thereof in the case of U.S. Dollar
Advances. Each Borrowing under the U.S. Operating
Facility shall be in minimum amounts of the lesser of
(a) U.S. $1,000,000 and (b) the amount available
under the U.S. Operating Facility, and U.S.$1,000,000
multiples thereof in the case of Floating Rate
Advances."
(c) Section 3.03 is amended as follows:
(i) Section 3.03(2) is deleted and the following
substituted therefor:
"(2) A Borrower may elect to change any Advance to
another Type of Advance, other than a Libor Rate
Advance, in accordance with Section 3.03(3) upon the
number of days notice specified in Schedule 5 in the
case of a Floating Rate Advance, as of any Business
Day."
(ii) Section 3.03(3) is deleted and the following
substituted therefor:
"(3) Each election to change from one Type of Advance
to another Type of Advance shall be made on the
number of days
-11-
prior notice specified in Schedule 5 given, in each
case, not later than 12:00 noon (Toronto time) in the
case of the Term Facilities, the Acquisition
Facilities and the Operating Facilities by the
relevant Borrower to the Administrative Agent. Each
such notice (an "Election Notice") shall be given
substantially in the form of Schedule 2 and shall be
irrevocable and binding upon the Borrower. All Libor
Rate Advances outstanding as of September 19, 2001,
shall be converted (as of the last day of the
applicable Libor Interest Period) to and be
outstanding as (i) a U.S. Base Rate Advance in the
case of a Libor Rate Advance by a Domestic Lender, or
(ii) U.S. Prime Rate Advance in the case of a Libor
Rate Advance by a Foreign Lender."
6. Amendment to Article 4. Article 4 is amended as follows:
(a) Section 4.01 is deleted in its entirety.
(b) Section 4.05(1) is amended by deleting the phrase "elect to
issue a replacement BA Instrument by giving a Drawing Notice
in accordance with Section 4.03(1), (ii)", and the phrase
"(iii)" shall be deleted and the phrase "(ii)" substituted
therefor.
(c) Section 4.05(2) is amended by deleting the phrase "or issue a
replacement in the Face Amount of such BA Instrument pursuant
to Section 4.05(1)".
7. Amendment to Article 6. Article 6 amended as follows:
(a) Section 6.02 is amended by adding to the end thereof the
following as 6.02(3):
"(3) The obligation of each New Tranche Lender to
make Accommodations under the New Tranche Facilities
or otherwise give effect to any Accommodation Notice
concerning an Accommodation under the New Tranche
Facilities is subject to fulfillment of the following
conditions (any of which may be waived by the New
Tranche Lenders) at the time of any such
Accommodation or Accommodation Notice:
(i) With respect to any such Accommodation or
Accommodation Notice:
1. Bracknell shall have delivered to the
Administrative Agent evidence satisfactory
to the Administrative Agent and the New
Tranche Lenders that OTPP has entered into a
-12-
purchase agreement with Bracknell, providing
for the OTPP Investments;
2. Bracknell shall have delivered to the
Administrative Agent evidence satisfactory
to the Administrative Agent and the New
Tranche Lenders that the Borrowers have
arrangements with bonding companies
satisfactory to Administrative Agent and the
Majority New Tranche Lenders;
3. Bracknell shall have delivered to the
Administrative Agent all documentation,
fully executed, reasonably required in
connection with the Second Bracknell
Amending Agreement (2001-2) by the
Administrative Agent and legal counsel to
the Administrative Agent;
4. Bracknell shall have delivered to the
Administrative Agent opinions of legal
counsel to the Borrowers and Restricted
Subsidiaries, prepared in connection with
the Second Bracknell Amending Agreement
(2001-2), in form and substance acceptable
to legal counsel to the Administrative
Agent; and
5. OTPP shall not have withdrawn its commitment
to make the OTPP Investments;
(ii) With respect to an Accommodation or Accommodation
Notice which, after giving effect thereto would
result in Accommodations Outstanding under the New
Tranche Facilities in the aggregate of U.S.$10
million or greater:
1. Bracknell shall have delivered to the
Administrative Agent evidence that Bracknell
has filed with the appropriate securities
regulators a preliminary prospectus with
respect to the rights offering which is part
of the OTPP Investments;
2. Progress satisfactory to the New Tranche
Lenders shall have been made on the
negotiation of a term sheet for new senior
secured credit facilities for Bracknell
consisting of a revolving facility and term
facilities, to be offered in connection with
the completion of the OTPP Investments; and
3. No material adverse change shall have
occurred in progress toward meeting
conditions precedent to the OTPP
Investments;
-13-
(iii) With respect to an Accommodation or Accommodation
Notice which, after giving effect thereto would
result in Accommodations Outstanding under the New
Tranche Facilities in the aggregate of U.S.$15
million or greater:
1. Bracknell shall have delivered to the
Administrative Agent evidence of OTPP having
approved a term sheet for new senior secured
credit facilities for Bracknell consisting
of a revolving facility and term facilities,
offered in connection with the completion of
the OTPP Investments.
8. Amendment to Article 7. Article 7 is amended as follows:
(a) Section 7.01 is amended by adding the following to the end
thereof:
"(dd) Disclosure Concerning OTPP. As of the Amending
Date, the information provided by Bracknell to the
Administrative Agent and the Lenders concerning the
OTPP Investments fairly, accurately and completely
represents the OTPP Investments, the prospects for
completion of such investments and the respective
terms sheets, and no material fact has been omitted
from this information.
(ee) Disclosure to OTPP. Bracknell has fairly,
accurately and completely represented the substantive
contents of the Third Amended and Restated Credit
Agreement, as amended by the Second Bracknell
Amending Agreement (2001-2), and no material fact
relating to thereto has been omitted from such
representations."
9. Amendment to Article 8. Article 8 is amended as follows:
(a) Section 8.01 is amended by adding to the end thereof the
following as Section 8.01 (u), (v), (w), (x) and (y):
"(u) Adesta Plan. Develop and diligently implement a
plan for the restructuring of Adesta (the "Adesta
Plan"), which plan shall include a prohibition of new
intercompany loans or other advances to Adesta and
the documentation of existing intercompany loans to
Adesta by way of promissory notes, which at all times
shall be satisfactory to the Administrative Agent and
the Majority New Tranche Lenders, and a written copy
of such plan shall be delivered to the Administrative
Agent and the Lenders no later than November 15,
2001.
-14-
(v) Adesta Intercompany Loans. Deliver and cause its
Restricted Subsidiaries to deliver, to the
Administrative Agent, within ten days of the Amending
Date, specific assignments, in form and substance
satisfactory to the Administrative Agent, of all
intercompany promissory notes and related security,
if any, given by Adesta to any Borrower or any other
Restricted Subsidiary.
(w) Negotiate Terms. Diligently pursue, and cause its
Restricted Subsidiaries to diligently pursue, more
favourable payment terms with its trade creditors.
(x) Amend Master Services Agreement. Diligently
negotiate amendments to the Master Services Agreement
confirming the ongoing relationship between Worldcom
and Bracknell Corporation (U.S.A.), Inc.,
satisfactory to Administrative Agent and the Majority
New Tranche Lenders.
(y) Subordinated Debt. Diligently pursue an agreement
with Whitney & Co., or other potential subordinated
debt investor, for a Subordinated Debt investment of
at least U.S.$50 million on terms and conditions
satisfactory to Administrative Agent and the Majority
New Tranche Lenders."
(b) Section 8.02(n) is amended by adding to the end thereof the
following phrase "; provided that, not withstanding anything
in this Section 8.02(n) or elsewhere in this Agreement, the
Borrowers and their respective Restricted Subsidiaries shall
be permitted to establish an escrow payment arrangement with
MCI Worldcom Network Services, Inc. pursuant to which accounts
receivable from MCI Worldcom Network Services, Inc. in respect
of work performed under the Master Services Agreement are paid
into escrow for further direct payment of accounts payable to
trade creditors with respect to work performed under the
Master Services Agreement, provided such escrow arrangement is
acceptable to the Administrative Agent and the Majority New
Tranche Lenders".
(c) Section 8.02 is amended by adding to the end thereof the
following as Section 8.02 (w) and (x):
"(w) Settlement of Specified Litigation. Make any
settlement offer, or accept or refuse to accept, and
Bracknell shall cause its Restricted Subsidiaries to
not make any settlement offer, or accept or refuse to
accept, any bona fide settlement offer, in
-15-
respect of Specified Litigation without the consent
of the Administrative Agent and New Tranche Majority
Lenders.
(x) Adesta Intercompany Loans. Make any new
intercompany loans or other advances to Adesta, and
Bracknell shall cause its Restricted Subsidiaries to
not make any new intercompany loans or other advances
to Adesta, unless such intercompany loans or other
advances are included in the Adesta Plan developed by
Bracknell and satisfactory to the Administrative
Agent and the Majority New Tranche Lenders."
(d) Section 8.03(b) is deleted and the following substituted
therefor:
"(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; (iv) 6.0:1 for the Financial Quarters ended
October 31, 2001 and January 31, 2002; and (v) 3.0:1
thereafter."
(e) Section 8.03(c) is deleted and the following substituted
therefor:
"(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, except for the Financial Quarters
ended October 31, 2001 and January 31, 2002, for
which such ratio shall not be less than 2.0:1."
(f) Section 8.03(e) is deleted and the following substituted
therefor:
"(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; (iv)
3.65:1 for the Financial Quarter ended July 31, 2001;
(v) 6.0:1 for the Financial Quarters ended October
31, 2001 and January 31, 2002; and (vi) 2.5:1 for
each Financial Quarter thereafter. The
-16-
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 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 as a result of
such reduction."
(g) Section 8.03 is amended by adding the following to the end
thereof as Section 8.03(f):
"(f) Cashflow. Maintain, at all times, cumulative
cashflow of at least 85% of Bracknell's projected
consolidated net cumulative rolling cashflow, as set
forth in the financial projections provided to the
Administrative Agent and the Lenders as of the
Amending Date."
(h) Section 8.03 is amended by adding the following to the end
thereof as Section 8.03(g):
"(g) Calculations. The financial covenants listed in
this section 8.03 shall be calculated with respect to
the Financial Quarters ending October 31, 2001 and
January 31, 2002, on the assumption there shall be no
scheduled principal repayments hereunder by the
Borrowers until October 31, 2003 and excluding
Adesta. In addition, the financial covenant listed in
Section 8.03(a) shall be calculated with respect to
the Financial Quarters ending October 31, 2001 and
January 31, 2002 on the assumption that an equity
investment of $80,000,000 is made during the period
of which $40,000,000 is used to repay Accommodations
Outstanding. The assumptions described above shall be
used for calculation purposes only, and do not, and
are not intended to, reflect any agreement or
intention of the Parties on any matters other than
calculation methodology."
10. Amendment to Article 9. Article 9 is amended as follows:
(a) Section 9.01 shall be amended by adding immediately after
clause 9.01(r) the following as clause 9.01(s):
"(s) The OTPP Investments have not been completed on
or before November 15, 2001, or such later date, no
later than November 30, 2001, as may be required for
necessary approvals of the appropriate stock
exchange, securities commissions and competition law
regulatory bodies,".
-17-
(b) Section 9.01 shall be amended by deleting the text immediately
following clause 9.01(s) and substituting therefor the
following:
"then the obligation of the Lenders to make further
Accommodations shall immediately terminate and the
Administrative Agent may, and shall at the request of
the Majority Lenders, or, if there are Accommodations
Outstanding under the New Tranche Facilities, the
Majority New Tranche Lenders, declare the
Accommodations Outstanding, all accrued interest and
Fees and all other amounts payable under this
Agreement to be immediately due and payable, without
presentment, demand, protest or further notice of any
kind, except as may be required by law and which
cannot be waived, all of which are expressly waived
by the Borrowers."
(c) Section 9.02 shall be amended by deleting the phrase "Majority
Lenders" in each instance therein and substituting therefor
the following:
"Majority Lenders, or, if there are Accommodations
Outstanding under the New Tranche Facilities, the
Majority New Tranche Lenders".
11. Amendment to Article 11. Article 11 is amended as follows:
(a) Section 11.01 shall be amended by adding at the end thereof
the following as Section 11.01(5):
"(5) Notwithstanding anything in this Section 11.01,
written waivers or consents signed by the Majority
New Tranche Lenders shall waive compliance with any
representation and warranty or covenant established
pursuant to the Second Bracknell Amending Agreement
(2001-2)."
(b) Section 11.08 shall be amended by adding at the end thereof
the following as Section 11.08(7):
"(7) Notwithstanding any other provision of this
Section 11.08, no Canadian New Tranche Lender shall
be entitled to assign or grant any participation in
their Canadian New Tranche Commitment or
Accommodations Outstanding under the Canadian New
Tranche Facility, and no U.S. New Tranche Lender
shall be entitled to assign or grant any
participation in their U.S. New Tranche Commitment or
Accommodations Outstanding under the U.S. New Tranche
Facility, to any Person until after November 15,
2001, but thereafter may assign
-18-
or grant any participations in such New Tranche
Commitments or Accommodations outstanding under the
New Tranche Facilities if and as otherwise provided
herein."
(c) Section 11.13 shall be amended by designating the text thereof
as Section 11.13(1) and adding at the end thereof the
following as Section 11.13(2):
"(2) No amount of "interest" (as defined in Section
347 of the Criminal Code (Canada)) which exceeds the
maximum rate permissible under the Criminal Code
(Canada) is payable by the Borrowers to the
Administrative Agent or the Lenders. In the event a
court of competent jurisdiction holds that any
amounts payable by the Borrowers to the
Administrative Agent or the Lenders hereunder is
"interest" (as defined in Section 347 of the Criminal
Code (Canada)) which exceeds the maximum rate
permissible under the Criminal Code (Canada), the
amounts of "interest" (as defined in Section 347 of
the Criminal Code (Canada)) due and payable by the
Borrowers to the Lenders shall be reduced to the
maximum amount permissible under the Criminal Code
(Canada). No amounts otherwise payable hereunder by
Nationwide which exceed the maximum rate permissible
by any usury law in a jurisdiction in the United
States applicable to Nationwide is payable by
Nationwide. If a court of competent jurisdiction in
the United States holds that any amounts payable by
Nationwide hereunder exceed the maximum rate
permissible by any usury law in a jurisdiction in the
United States applicable to Nationwide, the amount
payable by Nationwide shall be reduced to the maximum
amount permitted by applicable law."
12. Amendment to Signature Pages. The signature pages to the Third Amended and
Restated Credit Agreement are amended by deleting the phrases and amounts
opposite each Lender's name and substituting therefor the respective phrases and
amounts appearing opposite each Lender's name on the signature pages hereof.
13. Adesta Waiver. Except as may otherwise be specifically provided in this
Second Bracknell Amending Agreement (2001-2), neither:
(a) Adesta, its business, financial condition or prospects; or
(b) any agreements or other business dealings between any Borrower
or Restricted Subsidiary and MCI Worldcom Network Services,
Inc.,
shall, of themselves, be relied upon or given effect in the interpretation or
application of any covenant, representation and warranty, event of default or
other
-19-
term of the Credit Documents; provided, for greater certainty, there is and
shall not be deemed to be any waiver by the Lenders of any default arising from
the failure of Adesta to make any payment to the Administrative Agent or the
Lenders required pursuant to any Credit Document.
14. Fees. Bracknell shall pay the following fees to the Administrative Agent,
for the account of the New Tranche Lenders (to be shared rateably by them):
(a) a one time New Tranche Facility Fee in an amount equal to 5.0%
of the aggregate of the Canadian New Tranche Commitment and
the U.S. New Tranche Commitment, which is acknowledged to have
been earned on the date of this Second Bracknell Amending
Agreement (2001-2), but is payable on the earlier of (i)
December 21, 2001, and (ii) repayment in full of the New
Tranche Facilities; and
(b) an amending fee in the amount of U.S.$200,000, which is
acknowledged to have been earned on the date of this Second
Bracknell Amending Agreement (2001-2), but is payable on the
earlier of (i) December 21, 2001, and (ii) repayment in full
of the New Tranche Facilities.
15. Warrants. Bracknell shall issue to the New Tranche Lenders (to be shared
rateably by them), on the date of the issuance of the receipt for the final
prospectus to be filed with respect to the OTPP Investments, warrants to acquire
1,000,000 common shares of Bracknell (which underlying shares shall be
conditionally listed on the Toronto Stock Exchange (the "TSE") and shall be
freely tradable in Canada and the United States upon issuance), which warrants
shall be exercisable, in whole or in part, for a period of five years from the
date of issue, will contain typical anti-dilution provisions, will have an
exercise price equal to the closing price of Bracknell common shares on the TSE
on the trading day immediately prior to notice of the warrants being sent to the
TSE, which date shall be September 25, 2001. Bracknell shall have the right at
any time after issuance of the warrants, to repurchase or terminate the warrants
at a release price equal to the exercise price plus Cdn$1.50. At the request of
the Administrative Agent, Bracknell shall issue the warrants if the receipt for
the final prospectus to be filed with respect to the OTPP Investments has not
been issued by November 30, 2001, or at any other time, in which case the
warrants and the underlying shares may be subject to applicable hold periods.
16. 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
-20-
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.
17. No Waiver, etc. The execution, delivery and effectiveness of this Second
Bracknell Amending Agreement (2001-2) 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.
18. Governing Law. This Second Bracknell Amending Agreement (2001-2) shall be
governed by and construed in accordance with the laws of the Province of Ontario
and of Canada applicable therein.
[Remainder of this page is intentionally blank.]
-21-
IN WITNESS WHEREOF the parties hereto have executed this Second
Bracknell Amending Agreement (2001-2) 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
-22-
ROYAL BANK OF CANADA, as
Administrative Agent
Per:
----------------------------------
Authorized Signing Officer
Per:
----------------------------------
Authorized Signing Officer
Canadian Term
Commitment: U.S.$5,215,518 ROYAL BANK OF CANADA
Canadian Acquisition Per:
Commitment: U.S.$1,043,102 ----------------------------------
Authorized Signing Officer
Canadian Core
Operating Per:
Commitment: U.S.$6,250,000 ----------------------------------
Authorized Signing Officer
Canadian Swingline
Commitment: U.S.$5,000,000
Canadian New Tranche
Commitment: U.S.$1,300,571
Canadian Term
Commitment: U.S.$4,353,448 CANADIAN IMPERIAL BANK OF COMMERCE
Canadian Acquisition
Commitment: U.S.$870,690 Per:
----------------------------------
Canadian Core Authorized Signing Officer
Operating
Commitment: U.S.$6,250,000
Per:
Canadian New Tranche ----------------------------------
Commitment: U.S.$1,614,321 Authorized Signing Officer
-23-
Canadian Term
Commitment: U.S.$4,353,448
THE TORONTO-DOMINION BANK
Canadian Acquisition
Commitment: U.S.$870,690
Per:
Canadian Core ----------------------------------
Operating Authorized Signing Officer
Commitment: U.S.$6,250,000
Canadian New Tranche Per:
Commitment: U.S.$1,627,636 ----------------------------------
Authorized Signing Officer
Canadian Term
Commitment: ▇.▇.▇▇,▇▇▇,▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Canadian Acquisition
Commitment: U.S.$746,552
Per:
Canadian Core ----------------------------------
Operating Authorized Signing Officer
Commitment: U.S.$6,250,000
Canadian New Tranche
Commitment: U.S.$1,078,685
Canadian Term
Commitment: ▇.▇.▇▇,▇▇▇,▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ Acquisition
Commitment: U.S.$539,655 Per:
----------------------------------
Canadian New Tranche Authorized Signing Officer
Commitment: U.S.$1,086,479
Per:
----------------------------------
Authorized Signing Officer
-24-
Canadian Term
Commitment: ▇.▇.▇▇,▇▇▇,▇▇▇ ▇▇▇▇ ▇▇▇, ▇.▇., ▇▇▇▇▇▇ BRANCH
Canadian Acquisition
Commitment: U.S.$470,690
Per:
Canadian New Tranche ----------------------------------
Commitment: U.S.$423,985 Authorized Signing Officer
Per:
----------------------------------
Authorized Signing Officer
Canadian Term
Commitment: U.S.$2,293,103 COMERICA BANK - CANADA
Canadian Acquisition
Commitment: U.S.$458,621
Per:
Canadian New Tranche ----------------------------------
Commitment: U.S.$313,548 Authorized Signing Officer
Per:
----------------------------------
Authorized Signing Officer
Canadian New Tranche
Commitment: U.S.$554,775 [▇▇▇▇▇▇▇ ▇▇▇▇▇ CAPITAL CANADA CORP.]
Per:
----------------------------------
Authorized Signing Officer
Per:
----------------------------------
Authorized Signing ▇▇▇▇▇▇▇
-▇▇-
▇.▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇
Commitment: U.S.$9,700,000
U.S. New Tranche Per:
Commitment: U.S.$1,617,991 ----------------------------------
Authorized Signing Officer
U.S. Core Operating
Commitment: U.S.$14,633,333 CIBC INC.
U.S. New Tranche
Commitment: U.S.$2,088,617 Per:
----------------------------------
Authorized Signing Officer
Per:
----------------------------------
Authorized Signing Officer
U.S. Core Operating
Commitment: U.S.$14,833,333 TORONTO DOMINION (TEXAS) INC.
U.S. New Tranche
Commitment: U.S.$2,108,589 Per:
----------------------------------
Authorized Signing Officer
Per:
----------------------------------
Authorized Signing Officer
-26-
U.S. Core Operating
Commitment: U.S.$7,100,000 BANK OF AMERICA, ▇.▇.
▇.▇. Alternate Operating
Commitment: U.S.$3,000,000 Per:
----------------------------------
U.S. New Tranche Authorized Signing Officer
Commitment: U.S.$1,285,163
Per:
----------------------------------
Authorized Signing Officer
U.S. Core Operating
Commitment: U.S.$16,016,667 BANK OF MONTREAL
U.S. New Tranche
Commitment: U.S.$1,629,718 Per:
----------------------------------
Authorized Signing Officer
Per:
----------------------------------
Authorized Signing Officer
U.S. Core Operating
Commitment: U.S.$6,350,000 BANK ONE, KENTUCKY, ▇.▇.
▇.▇. Alternate Operating
Commitment: U.S.$5,000,000 Per:
----------------------------------
U.S. New Tranche Authorized Signing Officer
Commitment: U.S.$635,977
Per:
----------------------------------
Authorized Signing Officer
-27-
U.S. Core Operating
Commitment: U.S.$4,700,000 COMERICA BANK
U.S. New Tranche
Commitment: U.S.$470,323 Per:
----------------------------------
Authorized Signing Officer
Per:
----------------------------------
Authorized Signing Officer
U.S. Core Operating
Commitment: U.S.$8,333,333 ▇▇▇▇▇▇▇ ▇▇▇▇▇ CAPITAL CORP.
U.S. New Tranche
Commitment: U.S.$832,162 Per:
----------------------------------
Authorized Signing Officer
Per:
----------------------------------
Authorized Signing Officer
U.S. Core Operating
Commitment: U.S.$6,666,667 ▇▇▇▇▇ FARGO BANK, NA.
U.S. Alternate Operating
Commitment: U.S.$1,750,000 Per:
----------------------------------
U.S. New Tranche Authorized Signing Officer
Commitment: U.S.$665,729
Per:
----------------------------------
Authorized Signing Officer
-28-
U.S. Core Operating
Commitment: U.S.$ 6,666,667 FIRSTAR BANK, NA.
U.S. New Tranche
Commitment: U.S.$665,729 Per:
----------------------------------
Authorized Signing Officer
Per:
----------------------------------
Authorized Signing Officer
SCHEDULE 6
Applicable Margins
(in basis points per annum)
A. Canadian Term Facility, Canadian Acquisition Facility and Bracknell Limited
Partnership Credit Facility:
------------------------------------------ ------------- ----------------- -------------------- --------------
Ratio of Total Net Debt Libor Margin, B/A's,
to Consolidated EBITDA Facility Fees Prime Rate, USBR L/C's, and L/G's All-in Drawn
------------------------------------------ ------------- ----------------- -------------------- --------------
Less than or = to 1.5:1 75.0 NIL 100.0 75.0/175.0
------------------------------------------ ------------- ----------------- -------------------- --------------
>1.5:1 less than or = to 2.0:1 75.0 25.0 125.0 100.0/200.0
------------------------------------------ ------------- ----------------- -------------------- --------------
>2.0:1 less than or = to 2.5:1 75.0 50.0 150.0 125.0/225.0
------------------------------------------ ------------- ----------------- -------------------- --------------
>2.5:1 less than or = to 3.0:1 75.0 100.0 200.0 175.0/275.0
------------------------------------------ ------------- ----------------- -------------------- --------------
>3.0:1 less than or = to 3.5:1 95.0 130.0 230.0 225.0/325.0
------------------------------------------ ------------- ----------------- -------------------- --------------
>3.5:1 less than or = to 4.0:1 110.0 165.0 265.0 275.0/375.0
------------------------------------------ ------------- ----------------- -------------------- --------------
>4.0:1 less than or = to 4.25:1 137.5 187.5 287.5 325.0/425.0
------------------------------------------ ------------- ----------------- -------------------- --------------
B. Operating Facilities (Other than New Tranches):
------------------------------------------ ------------- ----------------- -------------------- --------------
Ratio of Total Net Debt Facility Fees Prime Rate, USBR Libor Margin, B/A's, All-in Drawn
to Consolidated EBITDA L/C's, and L/G's
------------------------------------------ ------------- ----------------- -------------------- --------------
Less than or = to 1.5:1 30.0 45.0 145.0 75.0/175.0
------------------------------------------ ------------- ----------------- -------------------- --------------
>1.5:1 less than or = to 2.0:1 37.5 62.5 162.5 100.0/200.0
------------------------------------------ ------------- ----------------- -------------------- --------------
>2.0:1 less than or = to 2.5:1 37.5 87.5 187.5 125.0/225.0
------------------------------------------ ------------- ----------------- -------------------- --------------
>2.5:1 less than or = to 3.0:1 50.0 125.0 225.0 175.0/275.0
------------------------------------------ ------------- ----------------- -------------------- --------------
>3.0:1 less than or = to 3.5:1 62.5 162.5 262.5 225.0/325.0
------------------------------------------ ------------- ----------------- -------------------- --------------
>3.5:1 less than or = to 4.0:1 75.0 200.0 300.0 275.0/375.0
------------------------------------------ ------------- ----------------- -------------------- --------------
>4.0:1 less than or = to 4.25:1 87.5 237.5 337.5 325.0/425.0
------------------------------------------ ------------- ----------------- -------------------- --------------
C. New Tranche Facilities:
------------------------- ---------------------- ------------------- ------------------
Ratio of Total Net Debt New Tranche Facility Prime Rate, USBR L/C's, and L/G's
to Consolidated EBITDA Fee
------------------------- ---------------------- ------------------- ------------------
All 500.0 500.0 500.0
------------------------- ---------------------- ------------------- ------------------
Guarantors' Acknowledgement and Confirmation
Acknowledgement and confirmation made as of September 19, 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 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, ▇▇▇▇▇▇▇
Electric Holdings, Inc., ▇▇▇▇▇▇▇-▇▇▇▇▇ Company, ▇▇▇▇▇▇▇ Electric Co., ▇▇▇▇
Electric, Inc., ▇▇▇▇ Equipment Company, LLC, ▇▇▇▇▇▇▇▇▇ Electric Co., Inc.,
Sylvan Industrial Piping, Inc. (Michigan), Sunbelt Integrated Trade Services,
Inc., ▇▇▇▇▇▇ Industries, LLC, Quality Mechanical Contractors, 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 Electrical Construction Corp.,
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 ▇▇▇▇▇▇ 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 LP, L.L.C., Bracknell Investments, L.P.,
Bracknell Georgia GP, Inc., ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ Operations, L.P. and ▇▇▇▇▇▇▇ ▇▇▇▇▇
Operations, 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, as amended by the Bracknell Amending Agreement (2001-1) dated as of
July 30, 2001, and as further amended by the Second Bracknell Amending Agreement
(2001-2) dated as of September 19, 2001; (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
-3-
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"); (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 agreements dated
as of May 30, 2001, and September 1, 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 Second Bracknell Amending Agreement (2001-2) 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.
-4-
In witness whereof this acknowledgement and confirmation has been
executed by the parties as of the date first above written in the Second Limited
Partnership Amending Agreement (2001-2).
BRACKNELL CORPORATION EAGLE ELECTRIC HOLDINGS, INC.
(MINNESOTA)
Per: Per:
------------------------------ ------------------------------
Authorized Signing Officer Authorized Signing Officer
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. ▇▇▇▇▇▇▇ ELECTRIC HOLDINGS, INC.
Per: Per:
------------------------------ ------------------------------
Authorized Signing Officer Authorized Signing Officer
-5-
354709 ALBERTA LTD. ▇▇▇▇▇▇▇-▇▇▇▇▇ COMPANY
Per: Per:
------------------------------ ------------------------------
Authorized Signing Officer Authorized Signing Officer
334108 ALBERTA LTD. ▇▇▇▇▇▇▇ ELECTRIC CO.
Per: Per:
------------------------------ ------------------------------
Authorized Signing Officer Authorized Signing Officer
HIGHLIGHT WIRELESS SOLUTIONS INC. ▇▇▇▇▇▇ INDUSTRIES, LLC
Per: Per:
------------------------------ ------------------------------
Authorized Signing Officer Authorized Signing Officer
▇▇▇▇ ELECTRIC, INC. QUALITY MECHANICAL CONTRACOTRS, INC.
Per: Per:
------------------------------ ------------------------------
Authorized Signing Officer Authorized Signing Officer
▇▇▇▇ EQUIPMENT COMPANY, LLC. BRACKNELL FACILITIES SERVICES, INC.
Per: Per:
------------------------------ ------------------------------
Authorized Signing Officer Authorized Signing Officer
▇▇▇▇▇▇▇▇▇ ELECTRIC CO., INC.
Per:
------------------------------
Authorized Signing Officer
-6-
SYLVAN INDUSTRIAL PIPING, INC. (MICHIGAN) THE STATE GROUP INTERNATIONAL LIMITED
Per: Per:
------------------------------ ------------------------------
Authorized Signing Officer Authorized Signing Officer
SUNBELT INTEGRATED TRADE SERVICES, INC. 3041768 NOVA SCOTIA COMPANY
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
PREFERRED ELECTRIC, INC. BRACKNELL A (WYOMING) LLC
Per: Per:
------------------------------ ------------------------------
Authorized Signing Officer Authorized Signing Officer
PREFERRED ELECTRIC CONSTRUCTION BRACKNELL LIMITED PARTNERSHIP, by its
CORPORATION general partner 1406883 Ontario Ltd.
Per: Per:
------------------------------ ------------------------------
Authorized Signing Officer Authorized Signing Officer
HIGHLIGHT SOLUTIONS, INC. ▇▇▇▇▇▇ MANAGEMENT CORPORATION
Per: Per:
------------------------------ ------------------------------
Authorized Signing Officer Authorized Signing Officer
-7-
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
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. BRACKNELL GEORGIA GP, INC.
Per: Per:
------------------------------ ------------------------------
Authorized Signing Officer Authorized Signing Officer
ABLE WIRELESS, INC. ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ OPERATIONS, L.P.
Per: Per:
------------------------------ ------------------------------
Authorized Signing Officer Authorized Signing Officer
-8-
ADESTA TRANSPORTATION, INC. ▇▇▇▇▇▇▇ ▇▇▇▇▇ OPERATIONS, L.P.
Per: Per:
------------------------------ ------------------------------
Authorized Signing Officer Authorized Signing Officer
MFS TRANSTECH, INC. ADESTA OF THE DISTRICT OF COLUMBIA,
INC.
Per:
------------------------------ Per:
Authorized Signing Officer ------------------------------
Authorized Signing Officer