1
EXHIBIT 10(i)
BRACKNELL CORPORATION, NATIONWIDE ELECTRIC, INC.
AND
THE STATE GROUP LIMITED
as Borrowers
- and -
THE FINANCIAL INSTITUTIONS LISTED
ON THE SIGNATURE PAGES
as Lenders
- and -
ROYAL BANK OF CANADA
as Administrative Agent
- and -
CANADIAN IMPERIAL BANK OF COMMERCE AND
THE TORONTO-DOMINION BANK
as Co-Syndication Agents
--------------------------------------------------------------------------------
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
--------------------------------------------------------------------------------
Dated as of July 21, 2000
2
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
Second Amended and Restated Credit Agreement dated as of July 21, 2000,
among BRACKNELL CORPORATION, NATIONWIDE ELECTRIC, INC. and THE STATE GROUP
LIMITED, as Borrowers, the financial institutions that are listed on the
signature pages, as Lenders, and ROYAL BANK OF CANADA, as Administrative Agent.
WHEREAS pursuant to a credit agreement dated as of November 19, 1999,
as amended pursuant to the first amending agreement dated as of February 11,
2000 (as amended, the "ORIGINAL CREDIT AGREEMENT") among the Borrowers, the
Lenders and the Administrative Agent, the Lenders made certain credit facilities
available to the Borrowers;
AND WHEREAS the Original Credit Agreement has been amended and restated
pursuant to an amended and restated credit agreement dated as of February 28,
2000 (the "AMENDED AND RESTATED CREDIT AGREEMENT");
AND WHEREAS the Borrowers, the Lenders and the Administrative Agent
have determined to further amend and restate the provisions of the Amended and
Restated Credit Agreement as herein provided, with effect as of and from the
date hereof;
NOW THEREFORE the parties hereto, for good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, hereby covenant
and agree that the Amended and Restated Credit Agreement shall be and is hereby
amended and restated as hereinafter set forth.
ARTICLE 1
INTERPRETATION
SECTION 1.01. DEFINED TERMS.
As used in this Agreement, the following terms have the following
meanings:
"ACCOMMODATION" means (i) an Advance made by a Lender on the occasion
of any Borrowing, (ii) the creation and purchase of Bankers' Acceptances or the
purchase of completed Drafts by a Domestic Lender or by any other Person on the
occasion of any Drawing, and (iii) the issue of a Documentary Credit by an
Issuing Lender on the occasion of any Issue (each of which is a "TYPE" of
Accommodation).
3
- 2 -
"ACCOMMODATION NOTICE" means a Borrowing Notice, a Drawing Notice, an
Issue Notice or an Election Notice, as the case may be.
"ACCOMMODATIONS OUTSTANDING" means, in relation to a Borrower and any
Lender at any time under a Credit Facility, an amount equal to the sum of (i)
the aggregate principal amount of all outstanding Advances made by the Lender
under such Credit Facility, (ii) if applicable, the aggregate Face Amount of all
outstanding Bankers' Acceptances and completed Drafts which a Lender has
purchased or arranged to have purchased and the aggregate Face Amount of all BA
Equivalent Notes, (iii) the aggregate Face Amount of all Documentary Credits for
which the Lender is contingently liable under such Credit Facility; and (iv) the
aggregate principal amount of all Swingline Advances made by the Swingline
Lender and U.S. Alternate Operating Lender, and in relation to a Borrower and
all Lenders, means the sum of the Accommodations Outstanding to each Lender. In
determining Accommodations Outstanding, the foregoing amounts shall be expressed
in U.S. Dollars and each relevant Canadian Dollar amount shall be converted, for
purposes of such calculation, into its Equivalent U.S. $ Amount, as of the
relevant day.
"ACQUIRING LENDER" has the meaning specified in Section 2.10(5).
"ACQUISITION" means, with respect to any Person, any transaction or
series of related transactions for the direct or indirect (i) acquisition of all
or substantially all of the assets or business or division of any other Person,
or (ii) acquisition of any shares, interests, participations or other
equivalents (including partnership interests) of or in any other Person.
"ACQUISITION OF CONTROL" means the occurrence of any of the following
events: (i) any Person (or any successor to it continuing from any amalgamation,
merger or other reorganization thereof) acquires, directly or indirectly, more
than 25% of the votes attached to Bracknell's securities entitled to vote for
the election of Bracknell's board of directors, (ii) any such Person's designees
represent a majority of Bracknell's board of directors, or (iii) any sale,
lease, exchange or other transfer (in one transaction or series of related
transactions) of all or substantially all of Bracknell's property and assets to
a Person.
"ADMINISTRATIVE AGENT" means Royal Bank of Canada as Administrative
Agent for the Lenders under this Agreement, and any successor appointed pursuant
to Section 10.09.
"ADVANCES" means advances made by a Lender under Article 3 and
"ADVANCE" means any one of such advances. Advances are denominated in Canadian
Dollars (a "CANADIAN DOLLAR ADVANCE") or in U.S. Dollars (a "U.S. DOLLAR
ADVANCE"). A Canadian Dollar Advance from a Domestic Lender is
4
- 3 -
designated a "CANADIAN PRIME RATE ADVANCE" and a U.S. Dollar Advance from a
Domestic Lender may be designated a "LIBOR RATE ADVANCE" or a "U.S. BASE RATE
ADVANCE". A U.S. Dollar Advance from a Foreign Lender may be designated as a
"LIBOR RATE ADVANCE" or a "U.S. PRIME RATE ADVANCE". Canadian Prime Rate
Advances, U.S. Base Rate Advances and U.S. Prime Rate Advances are referred to,
collectively, as "FLOATING RATE ADVANCES". Each of a Libor Rate Advance, a
Canadian Prime Rate Advance, a U.S. Base Rate Advance and U.S. Prime Rate
Advance is a "TYPE" of Advance.
"AFFILIATE" has the meaning specified in the Business Corporations Act
(Ontario) on the date of this Agreement.
"AGREEMENT" means this credit agreement and all schedules and
instruments in amendment or confirmation of it; and the expressions "ARTICLE"
and "SECTION" followed by a number mean and refer to the specified Article or
Section of this Agreement.
"ANNUAL BUSINESS PLAN" means, for any Financial Year, (i) detailed pro
forma balance sheets, income statements and statements of changes in the
Borrowers' and the Restricted Subsidiaries' financial position, prepared in
accordance with GAAP (to the extent applicable), in respect of such Financial
Year and each Financial Quarter therein for the Borrowers' and the Restricted
Subsidiaries' consolidated operations and supported by appropriate explanations,
notes and information, and (ii) detailed pro forma balance sheets, income
statements and statements of changes in the Borrowers' and the Restricted
Subsidiaries' financial position in respect of each of the Financial Years prior
to and including the Financial Year in which the Relevant Repayment Date occurs,
prepared in accordance with GAAP (to the extent applicable) for the Borrowers'
and the Restricted Subsidiaries' consolidated operations and supported by
appropriate explanations, notes and information.
"ANNUALIZED TOTAL COST OF GOODS SOLD" means the "cost of services"
determined on the same basis as set out in the consolidated statements of net
income and retained earnings of Bracknell which form part of Bracknell's annual
audited consolidated financial statements, calculated based on the most recently
completed twelve months and, if a Borrower has made an Acquisition during such
period, calculated on a pro forma basis as if such Acquisition had taken place
on the first day of such period.
"APPLICABLE FACILITY FEE" means, subject to the following sentences,
the facility fee in basis points per annum set forth in Schedule 6 corresponding
to the ratio of Total Net Debt to Consolidated EBITDA as calculated at the end
of each Financial Quarter. The Applicable Facility Fee from the date of this
Agreement until the date upon which the Administrative Agent has received a
certificate, in accordance with Section 8.01(a), relating to the second
Financial Quarter of the
5
- 4 -
Financial Year ended October 31, 2000 shall be calculated as if the ratio of
Total Net Debt to Consolidated EBITDA is greater than 3.5:1 and less than 4.0:1.
Subject to the next following sentences, if the Total Net Debt to Consolidated
EBITDA reflected in the certificate relating to the second Financial Quarter of
the Financial Year ended October 31, 2000 is greater than 4.0:1, the Applicable
Facility Fee for the first and second Financial Quarters of the Financial Year
ended October 31, 2000, shall be adjusted and shall be calculated as if such
ratio were 4.0:1 but less than or equal to 4.25:1. Upon the occurrence and
during the continuance of a Default or an Event of Default, the Applicable
Facility Fee shall be the highest fee provided for in Schedule 6. The Applicable
Facility Fee shall be adjusted on the date of calculation of the ratio of Total
Net Debt to Consolidated EBITDA set forth in Section 6 with effect as of the end
of the most recently completed Financial Quarter.
"APPLICABLE MARGINS" means, subject to the following sentences, the
margins in basis points per annum, set forth in Schedule 6 corresponding to the
ratio of Total Net Debt to Consolidated EBITDA as calculated at the end of each
Financial Quarter. The Applicable Margin from the date of this Agreement until
the date upon which the Administrative Agent has received a certificate, in
accordance with Section 8.01(a), relating to the second Financial Quarter of the
Financial Year ended October 31, 2000 shall be calculated as if the ratio of
Total Net Debt to Consolidated EBITDA is greater than 3.5:1 and less than 4.0:1.
If the Total Net Debt to Consolidated EBITDA reflected in the certificate
relating to the second Financial Quarter of the Financial Year ended October 31,
2000 is greater than 4.0:1, the Applicable Margin shall be adjusted and shall be
calculated as if such ratio will be greater than 4.0:1 but less than or equal to
4.25:1 for the first and second Financial Quarters of the Financial Year ended
October 31, 2000. In respect of (i) Canadian Prime Rate Advances, U.S. Prime
Rate Advances or U.S. Base Rate Advances, the Applicable Margin shall be the
margin referred to in the column "Floating Rate Advances" in Schedule 6; and
(ii) Libor Rate Advances, Drawings or Issues, the Applicable Margin shall be the
margin referred to in the column "Libor Margin\Drawing Fee\Documentary Credit
Fee" in Schedule 6, in each case, appropriately corresponding to the applicable
ratio of Total Net Debt to Consolidated EBITDA.
"ASSIGNEE" has the meaning specified in Section 11.08(3).
"BANK ONE" means Bank One, Kentucky, N.A.
"BANKERS' ACCEPTANCE" has the meaning specified in Section 4.01.
"BA EQUIVALENT NOTE" has the meaning specified in Section 4.03(3).
"BA INSTRUMENTS" means, collectively, Bankers' Acceptances, Drafts and
BA Equivalent Notes, and, in the singular, any one of them.
6
- 5 -
"BENEFICIARY" means, in respect of any Documentary Credit, the
beneficiary named in the Documentary Credit.
"BORROWERS" means, at any time, Bracknell, Nationwide and State and
their respective successors and permitted assigns and, in the singular, any one
of them.
"BORROWERS' ACCOUNTS" means the Borrowers' Canadian Dollar and U.S.
Dollar accounts maintained by the Administrative Agent in Toronto, the
particulars of which shall have been notified by the Administrative Agent to
Bracknell.
"BORROWERS' ▇▇▇▇-TO-MARKET EXPOSURE" means, on any date, the net amount
expressed in U.S. Dollars that would be payable by the Borrowers or the
Restricted Subsidiaries under all Hedging Agreements on that date if it were an
"Early Termination Date" and the "Transaction" were a "Terminated Transaction"
in accordance with the payment measures provided for in Section 6(e)(i)(3) of
the 1992 ISDA Master Agreement (Multicurrency-Cross Border) as published by the
International Swaps and Derivatives Association, Inc. as amended or replaced
from time to time.
"BORROWING" means a borrowing consisting of one or more Advances.
"BORROWING NOTICE" has the meaning specified in Section 3.02(1).
"BRACKNELL" means Bracknell Corporation, a corporation incorporated
under the laws of Ontario.
"BRACKNELL LIMITED PARTNERSHIP FACILITY" means the U.S.$115,000,000
term facility made available to Bracknell LP by the Foreign Lenders pursuant to
a credit agreement dated as of July 21, 2000 (as the same may be amended,
supplemented, restated or replaced at any time or from time to time);
"BRACKNELL LP" means Bracknell Limited Partnership, a limited
partnership formed under the laws of Nevada;
"BRACKNELL LP EVENT OF DEFAULT" means an event which, with the giving
of notice or passage of time, or both, would constitute a default or event of
default under the Bracknell Limited Partnership Facility;
"BUILDINGS AND FIXTURES" means all plant, buildings, structures,
erections, improvements, appurtenances and fixtures (including fixed machinery
and fixed equipment) situate on any of the Subject Properties.
7
- 6 -
"BUSINESS" means the business of providing electrical, mechanical,
multi-trade and telecommunications contracting and facilities management
services and services incidental thereto.
"BUSINESS DAY" means any day of the year, other than a Saturday, Sunday
or other day on which banks are required or authorized to close in Toronto,
Ontario and, where used in the context of (i) a Libor Rate Advance, also a day
on which banks are not required or authorized to close in New York City and
dealings are carried on in the London interbank market, and (ii) a U.S. Base
Rate Advance or a U.S. Prime Rate Advance, also a day on which banks are not
required or authorized to close in New York City.
"CANADIAN ACQUISITION COMMITMENT" has the meaning specified in the
definition of Commitment.
"CANADIAN ACQUISITION FACILITY" means the reducing term facility to be
made available to Bracknell by the Domestic Lenders under this Agreement for
purposes set out in Section 2.03.
"CANADIAN DOLLARS" and "CDN. $" each means lawful money of Canada.
"CANADIAN DOLLAR ADVANCE" has the meaning specified in the definition
of Advance.
"CANADIAN FACILITIES" means, collectively, the Canadian Term Facility,
the Canadian Acquisition Facility, the Canadian Operating Facility and the
Canadian Swingline Facility.
"CANADIAN MANDATORY BORROWING" has the meaning specified in Section
3.01(9).
"CANADIAN OPERATING COMMITMENT" has the meaning specified in the
definition of Commitment.
"CANADIAN OPERATING FACILITY" means the revolving operating credit
facility to be made available to State and Bracknell by certain Domestic Lenders
under this Agreement for the purposes set out in Section 2.03.
"CANADIAN PRIME RATE" means, at any time, the greater of (i) the rate
of interest per annum equal to the rate quoted, published and commonly known as
the "prime rate" of the Administrative Agent established at its main office in
Toronto, Ontario as the reference rate of interest in order to determine
interest rates for commercial loans in Canadian Dollars to its Canadian
borrowers, adjusted automatically with each quoted or published change in such
rate, all without the necessity of any notice to a Borrower or any other Person,
and (ii) the sum of (y) the
8
- 7 -
average rate per annum for Canadian Dollar banker's acceptances having a term of
30 days that appears on the Reuters Screen CDOR Page as of 10:00 a.m. (Toronto
time) on the date of determination, as reported by the Administrative Agent (and
if such screen is not available, any successor or similar service as may be
selected by the Administrative Agent), and (z) .50%.
"CANADIAN PRIME RATE ADVANCE" has the meaning specified in the
definition of Advance.
"CANADIAN SWINGLINE COMMITMENT" has the meaning specified in the
definition of Commitment.
"CANADIAN SWINGLINE FACILITY" means the revolving operating credit
facility to be made available, as a carve-out of the Canadian Operating
Facility, to Bracknell and State by the Swingline Lender under this Agreement
for the purposes set out in Section 2.03.
"CANADIAN TERM COMMITMENT" has the meaning specified in the definition
of Commitment.
"CANADIAN TERM FACILITY" means the reducing term facility to be made
available to Bracknell by the Domestic Lenders under this Agreement for the
purposes set out in Section 2.03.
"CAPITAL EXPENDITURES" means gross expenditures made for the purchase,
lease or acquisition of assets which would be classified as capital assets on a
balance sheet in accordance with GAAP.
"CAPITALIZATION" means, at any time, the sum of (i) Total Debt, plus
(ii) Consolidated Net Worth.
"CASH EQUIVALENTS" means any of the following, so long as the same are
maintained in accounts in which the Administrative Agent has a perfected
security interest: (i) securities issued, guaranteed or insured by the
government of Canada or any province, or the United States of America or any
state, and having terms to maturity of not more than one year, and (ii)
certificates of deposit having maturities of not more than one year issued or
guaranteed by a Canadian chartered bank and rated R-1 low (or the then
equivalent grade) or better by Dominion Bond Rating Service.
"CLOSING DATE" means the date on which this Agreement becomes effective
pursuant to Section 6.01.
"CODE" means the Internal Revenue Code of 1986 of the United States of
America, as amended from time to time, and any successor statute.
9
- 8 -
"COLLATERAL" means any and all property and assets in respect of which
the Administrative Agent or any Lender has a Lien under the Security Documents.
"COMMERCIAL DEBT" means Debt referred to in paragraph (i) of the
definition of Debt which is provided by one or more commercial banking
institutions to the Borrowers or any of the Restricted Subsidiaries.
"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. $25,000,000 less the Canadian Swingline
Commitment (which shall be a carve-out of the Canadian Operating Commitment and
a rateable carve-out of each Lender's Canadian Operating Commitment) (as reduced
or increased pursuant to Articles 2 and 3, the "CANADIAN OPERATING Commitment"),
(iv) the Canadian Swingline Facility, U.S. $5,000,000 (as reduced pursuant to
Articles 2 and 3, the "CANADIAN SWINGLINE COMMITMENT"); (v) the U.S. Operating
Facility, U.S. $42,500,000 less the U.S. Alternate Operating Commitment (which
shall be a carve-out of the U.S. Operating Commitment and a rateable carve-out
of each Lender's U.S. Operating Commitment) (as reduced pursuant to Article 2,
the "U.S. OPERATING COMMITMENT"); and (viii) the U.S. Alternate Operating
Facility, U.S. $5,000,000, (as reduced pursuant to Articles 2 and 3, the "U.S.
ALTERNATE OPERATING COMMITMENT") and a "LENDER'S CANADIAN TERM COMMITMENT",
"LENDER'S CANADIAN ACQUISITION COMMITMENT", "LENDER'S U.S. OPERATING
COMMITMENT", "LENDER'S CANADIAN OPERATING COMMITMENT" and "LENDER'S CANADIAN
SWINGLINE COMMITMENT" and "LENDER'S U.S. ALTERNATE OPERATING 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 reduced or increased pursuant to Articles 2 and 3).
"COMPLIANCE CERTIFICATE" means a certificate of Bracknell,
substantially in the form of Schedule 7, signed on its behalf by its chief
financial officer or any other officer acceptable to the Administrative Agent.
"CONSENTING LENDER" has the meaning specified in Section 2.10(3).
"CONSOLIDATED DEBT SERVICE" means, for any period, the aggregate of (i)
all Consolidated Interest Expense, and (ii) all regularly scheduled principal or
capital lease payments on account of Total Debt, in each case for such period.
Consolidated Debt Service shall be calculated based on Bracknell's reasonable
projections for the four following Financial Quarters.
10
- 9 -
"CONSOLIDATED DEPRECIATION AND AMORTIZATION EXPENSE" means, for any
period, depreciation, amortization and other non-cash expenses of the Borrowers
and the Restricted Subsidiaries which reduce Consolidated Net Income for such
period, determined as of such time in accordance with GAAP.
"CONSOLIDATED EBITDA" means, for any period and without duplication,
Consolidated Net Income increased, to the extent deducted in calculating
Consolidated Net Income, by the sum of (i) Consolidated Interest Expense, (ii)
all income taxes of the Borrowers and the Restricted Subsidiaries paid or
accrued in accordance with GAAP for such period (other than income taxes
attributable to extraordinary, unusual or nonrecurring gains or losses or taxes
attributable to sales or dispositions outside the normal course of business),
(iii) any non-cash items decreasing Consolidated Net Income for such period,
other than extraordinary or nonrecurring losses, and (iv) Consolidated
Depreciation and Amortization Expense, and decreased by (v) any non-cash items
increasing Consolidated Net Income for such period, other than extraordinary or
nonrecurring gains, (vi) all cash payments during such period relating to
non-cash charges which were added back in determining Consolidated EBITDA in any
prior period, all as determined at such time in accordance with GAAP. For
purposes hereof, Consolidated EBITDA shall not include (i) any Consolidated
EBITDA which has been generated from a Person resident in a country which is not
a member of the Organization for Economic Cooperation and Development (other
than the Bahamas or any other country approved by all the Lenders), except as
specifically permitted in connection with a Permitted Acquisition, and (ii) the
Restructuring Charge.
"CONSOLIDATED INTEREST EXPENSE" means, for any period for the Borrowers
and the Restricted Subsidiaries, the sum of, without duplication, (i) all items
properly classified as interest expense (whether expensed or capitalized) in
accordance with GAAP, (ii) the imputed interest component of any element of
Total Debt (such as capital leases and deferred revenue) which would not be
classified as interest expense pursuant to (i), (iii) the aggregate of all
purchase discounts relating to the sale of accounts receivable in connection
with any asset securitization program, but excluding, to the extent otherwise
included, (iv) any amount which would also qualify as Consolidated Depreciation
and Amortization Expense.
"CONSOLIDATED NET INCOME" means, for any period, the net income (loss)
of the Borrowers and the Restricted Subsidiaries determined in accordance with
GAAP, provided, however, that there shall be excluded therefrom (i) after-tax
gains or losses from assets sales or abandonments or reserves relating thereto,
(ii) after-tax items classified as extraordinary or nonrecurring losses not
exceeding $15,000,000 in any Financial Year, (iii) after tax items classified as
extraordinary or nonrecurring gains, (iv) the net income of any Person acquired
in a "pooling of interests" transaction accrued prior to the date it becomes a
Restricted Subsidiary or is merged or consolidated with a Borrower or any
Restricted Subsidiary, (v) the net income (but not loss) of any Restricted
Subsidiary to the extent that the
11
- 10 -
declaration of dividends or Distributions by that Restricted Subsidiary of that
income is restricted by a contract, operation of law or otherwise, (vi) the net
income of any Person, other than a Restricted Subsidiary, except to the extent
of cash dividends or Distributions paid to a Borrower or any of the Restricted
Subsidiaries by such Person, (vii) income or loss attributable to discontinued
operations (including, without limitation, operations disposed of or closed
during the period whether or not the operations were classified as
discontinued), and (viii) in the case of a successor to a Borrower by
consolidation or merger or as a transferee of a Borrower's assets, any earnings
of the successor corporation prior to such consolidation, merger or transfer of
assets.
"CONSOLIDATED NET WORTH" means, at any time, with respect to the
Borrowers and the Restricted Subsidiaries, the total shareholders' equity
(including stated capital or equivalent account in respect of issued and
outstanding shares, retained earnings and contributed surplus, but excluding
treasury shares and any subscribed but unissued shares) determined at such time
on a consolidated basis in accordance with GAAP.
"CREDIT DOCUMENTS" means this Agreement, the BA Instruments, the
Security Documents, the Hedging Agreements and all other documents to be
executed and delivered to the Administrative Agent or the Lenders, or both, by
the Borrowers and the Restricted Subsidiaries.
"CREDIT FACILITIES" means, collectively, the Operating Facilities, the
Canadian Swingline Facility, the Canadian Acquisition Facility and the Canadian
Term Facility and, in the singular, any one of them.
"DEBT" of any Person means, without duplication, (i) indebtedness for
borrowed money including borrowings of commodities, bankers' acceptances,
letters of credit or letters of guarantee, (ii) indebtedness for the deferred
purchase price of property or services other than for goods and services
purchased in the ordinary course of business and payable in accordance with
customary practice, (iii) indebtedness created or arising under any conditional
sale or other title retention agreement with respect to property acquired by the
Person (even though the rights and remedies of the seller or lender under such
agreement in the event of default are limited to repossession or sale of such
property), (iv) indebtedness of another Person secured by a security interest on
any properties or assets of the Person in question, (v) all current liabilities
of such Person represented by a note, bond, debenture or other evidence of debt,
(vi) all obligations under leases which have been or should be, in accordance
with GAAP, recorded as capital leases, (vii) the aggregate amount at which any
shares in the capital of the Person which are redeemable or retractable at the
option of the holder may be retracted or redeemed, and (viii) all Debt
Guaranteed by the Person; and for greater certainty, shall not include Hedging
Agreements or ordinary trade payables.
12
- 11 -
"DEBT GUARANTEED" by any Person means the maximum amount which may be
outstanding at any time of all Debt of the kinds referred to in (i) through
(vii) of the definition of Debt which is directly or indirectly guaranteed by
the Person or which the Person has agreed (contingently or otherwise) to
purchase or otherwise acquire, or in respect of which the Person has otherwise
assured a creditor or other Person against loss.
"DEFAULT" means an event which, with the giving of notice or passage of
time, or both, would constitute an Event of Default.
"DISTRIBUTION" means, in respect of any Person, the amount of (i) any
dividend or other distribution on issued shares of such Person, (ii) the
purchase, redemption or retirement amount of any issued shares, warrants or any
other options or rights to acquire shares of the Person redeemed or purchased by
the Person, (iii) any payment made on, under, or in respect of, any Debt (other
than Debt under this Agreement or payments required to be made pursuant to the
provisions of any pension plan of the Person in effect from time to time),
including interest, sinking fund or any like payment, (iv) any payment on
account of any principal, interest or premium on any loans or advances owing at
any time by the Person to any Related Party, or (v) any loan to or guarantee of
the indebtedness of any Related Party.
"DOCUMENTARY CREDIT" means a standby letter of credit or letter of
guarantee (each of which is a "TYPE" of Documentary Credit) issued or to be
issued by the Issuing Lender for the account of a Borrower pursuant to Article
5.
"DOMESTIC ISSUING LENDER" means Royal Bank of Canada and its
successors.
"DOMESTIC LENDER" means a Lender which is not a non-resident of Canada
within the meaning of the Income Tax Act (Canada).
"DRAFT" means, at any time, (i) a ▇▇▇▇ of exchange, within the meaning
of the Bills of Exchange Act (Canada), drawn by a Borrower on a Domestic Lender
or any other Person and bearing such distinguishing letters and numbers as the
Domestic Lender or the Person may determine, but which at such time has not been
completed as to the payee or accepted by the Domestic Lender or the other
Person; and (ii) a depository ▇▇▇▇ within the meaning of the Depository Bills
and Notes Act (Canada).
"DRAWING" means (i) the creation and purchase of Bankers' Acceptances
by a Domestic Lender or by any other Person pursuant to Article 4, or (ii) the
purchase of completed Drafts by a Domestic Lender or by any other Person
pursuant to Article 4.
13
- 12 -
"DRAWING DATE" means any Business Day fixed for a Drawing pursuant to
Section 4.03.
"DRAWING FEE" means, with respect to each Draft drawn by a Borrower and
purchased by any Person on any Drawing Date, an amount equal to the Applicable
Margin multiplied by the product of (i) a fraction, the numerator of which is
the numbers of days to maturity of such Bankers' Acceptance or Draft, and the
denominator of which is 365; and (ii) the aggregate Face Amount of the Bankers'
Acceptance.
"DRAWING NOTICE" has the meaning specified in Section 4.03(1).
"DRAWING PRICE" means, in respect of Bankers' Acceptances or Drafts to
be purchased by a Lender or any other Person, the result obtained by multiplying
(i) the aggregate Face Amount of the Bankers' Acceptances or Drafts, by (ii) the
amount (rounded up or down to the fifth decimal place with .000005 being rounded
up) determined by dividing one by the sum of one plus the product of (x) the
Reference Discount Rate, and (y) a fraction the numerator of which is the number
of days to maturity of the Bankers' Acceptances and the denominator of which is
365.
"DRAWING PROCEEDS" means, in respect of any Bankers' Acceptance or
Draft to be purchased by a Lender or any other Person, an amount equal to (i)
the Drawing Price, minus (ii) the applicable Drawing Fee.
"ELECTION NOTICE" has the meaning specified in Section 3.03(3).
"ENVIRONMENTAL LAWS" means all applicable laws, rules, regulations,
by-laws, orders, judgments, decisions of and agreements with a Governmental
Entity and all other statutory requirements relating to public health or the
protection of the environment and all authorizations, permits, consents,
registrations and approvals issued pursuant to such laws, agreements or
statutory requirements.
"ENVIRONMENTAL LIABILITIES" means all liabilities imposed by, under or
pursuant to Environmental Laws or which relate to the existence of contaminants
on, under or about the Subject Properties or the ownership or operation of the
Business or any assets related to the Business.
"EQUIVALENT CDN. $ AMOUNT" means, on any day with respect to any amount
of U.S. Dollars, the amount of Canadian Dollars which would be required to buy
such amount of U.S. Dollars using the spot rate of the Bank of Canada at
approximately 12:00 noon (Toronto time) on the day.
"EQUIVALENT U.S. $ AMOUNT" means, on any day with respect to any amount
of Canadian Dollars, the amount of U.S. Dollars which would be required to
14
- 13 -
buy such amount of Canadian Dollars using the spot rate of the Bank of Canada at
approximately 12:00 noon (Toronto time) on the day.
"ERISA" means the Employee Retirement Income Security Act of 1974 of
the United States of America, as amended from time to time, and any successor
statute.
"ERISA AFFILIATE" means any trade or business (whether or not
incorporated) that is a member of a group of which any of the Borrowers or any
of their respective Subsidiaries is a member which is treated as a single
employer under Section 414(b) or (c) of the Code or Section 4001 of ERISA.
"EVENT OF DEFAULT" has the meaning specified in Section 9.1.
"FACE AMOUNT" means (i) in respect of a BA Instrument, the amount
payable to the holder on its maturity, and (ii) in respect of a Documentary
Credit, the maximum amount which the Issuing Lender is contingently liable to
pay to the Beneficiary.
"FEDERAL FUNDS RATE" means, for any day, a fluctuating interest rate
per annum equal to the weighted average of the rates on overnight United States
Federal funds transactions with members of the Federal Reserve System arranged
by United States Federal funds brokers, as published for the day (or, if the day
is not a Business Day, for the preceding Business Day) by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations for the day on such transactions
received by the Administrative Agent from three United States Federal funds
brokers of recognized standing selected by it.
"FEES" mean the fees payable by the Borrowers under this Agreement.
"FINANCIAL QUARTER" means a period of three consecutive months ending
on January 31, April 30, July 31 and October 31, as the case may be, of each
year or such other dates as Bracknell may specify from time to time in
accordance with Section 8.01(c)(v).
"FINANCIAL YEAR" means, in relation to Bracknell or any Restricted
Subsidiary, the financial year commencing on November 1 of each calendar year
and ending on October 31 of the immediately following calendar year or such
other financial years as Bracknell may specify from time to time in accordance
with Section 8.01(c)(v).
"FLOATING RATE ADVANCES" has the meaning specified in the definition of
Advance.
15
- 14 -
"FOREIGN ISSUING LENDER" means Royal Bank of Canada and its successors.
"FOREIGN LENDER" means a Lender which is either (i) incorporated under
the laws of the United States, any state thereof or the District of Columbia,
(ii) a branch office in the United States of a corporation incorporated under
the laws of a jurisdiction outside the United States, or (iii) a corporation
incorporated under the laws of a jurisdiction outside the United States and,
under the terms of an applicable income tax treaty as in effect on the date
hereof, is exempt from United States federal withholding tax on payments to be
made to it under the Credit Documents.
"GAAP" means, at any time, accounting principles generally accepted in
Canada as recommended in the Handbook of the Canadian Institute of Chartered
Accountants at the relevant time applied on a consistent basis (except for
changes made with the prior written consent of the Administrative Agent and
approved by Bracknell's independent auditors in accordance with promulgations of
the Canadian Institute of Chartered Accountants).
"GOODS" means tangible personal property but excluding chattel paper,
documents of title, instruments, money and securities (as these terms are
defined in the Personal Property Security Act (Ontario) from time to time).
"GOVERNMENTAL ENTITY" means any (i) multinational, federal, provincial,
state, municipal, local or other government, governmental or public department,
central bank, court, commission, board, bureau, agency or instrumentality,
domestic or foreign, (ii) any subdivision or authority of any of the foregoing,
or (iii) any quasi-governmental or private body exercising any regulatory,
expropriation or taxing authority under or for the account of any of the above.
"HEDGING AGREEMENTS" means (i) currency exchange or interest rate swap
agreements, currency exchange or interest rate cap agreements or currency
exchange or interest rate collar agreements, in any such case between a Borrower
or a Restricted Subsidiary and any other Person, or (ii) any other agreement or
arrangement designed to protect a Borrower or a Restricted Subsidiary against
fluctuations in currency exchange or interest rates and not for speculative
investment, as it may be amended, supplemented, modified or restated from time
to time.
"INDEMNIFIED PERSON" has the meaning specified in Section 11.06(1).
"INVESTMENTS" means any advances, loans, guarantees or other extensions
of credit or capital contributions to (by means of transfers of property, money
or assets), or any purchase of any shares, stocks, bonds, notes, debentures or
other securities of, any Person as an investment in, and not as an acquisition
of, any Person.
16
- 15 -
"ISSUE" means an issue of a Documentary Credit by an Issuing Lender
pursuant to Article 5.
"ISSUE DATE" has the meaning specified in Section 5.02(1).
"ISSUE NOTICE" has the meaning specified in Section 5.02(1).
"ISSUING LENDER" means (i) in relation to Documentary Credits issued
under the Canadian Operating Facility, Royal Bank of Canada, and (ii) in
relation to Documentary Credits issued under the U.S. Operating Facility, Royal
Bank of Canada, each in their respective capacities as issuers of Documentary
Credits for the account of the Borrowers in accordance with Article 5, and any
successor to them.
"JOINT VENTURE" means a corporation incorporated under the laws of
Canada, the United States of Canada or the Bahamas (i) in which a Borrower or a
Restricted Subsidiary holds shares or other equity interests but which is not
wholly-owned directly or indirectly by a Borrower or a Restricted Subsidiary,
(ii) which has no Debt which cross-defaults or cross-accelerates to any Debt of
the Borrowers or the Restricted Subsidiaries or in respect of which a Borrower
or a Restricted Subsidiary is contingently liable, and (iii) in respect of which
no Borrower or Restricted Subsidiary has agreed to cause it to maintain or
preserve its financial position or achieve any specified financial or operating
results.
"JUDICIAL ORDER" has the meaning specified in Section 5.09(1).
"LEASED PROPERTIES" means, collectively, the real properties forming
the subject matter of the Leases.
"LEASES" means the material leases, subleases, rights to occupy, and
licences of real property or Buildings and Fixtures, to which any of the
Borrowers or the Restricted Subsidiaries are a party (i) at the date of this
Agreement, as listed and described in Schedule 7.01(j), or (ii) after the date
of this Agreement as notified to the Administrative Agent pursuant to Section
8.01(c), but shall exclude (iii) leases, rights and licences terminated in
accordance with their terms (and not as the result of a default) after the date
of this Agreement and as and from such termination.
"LENDERS" mean, collectively, the lenders set forth on the signature
pages hereof, any Person who may become a Lender pursuant to Section 11.08 and
their respective successors and assigns, and, in the singular, any of them.
"LENDER'S CANADIAN ACQUISITION COMMITMENT" has the meaning specified in
the definition of Commitment.
17
- 16 -
"LENDER'S CANADIAN OPERATING COMMITMENT" has the meaning specified in
the definition of Commitment.
"LENDER'S CANADIAN SWINGLINE COMMITMENT" has the meaning specified in
the definition of Commitment.
"LENDER'S CANADIAN TERM COMMITMENT" has the meaning specified in the
definition of Commitment.
"LENDER'S U.S. ALTERNATE OPERATING COMMITMENT" has the meaning
specified in the definition of Commitment.
"LENDER'S U.S. OPERATING COMMITMENT" has the meaning specified in the
definition of Commitment.
"LIBOR INTEREST PERIOD" means, for each Libor Rate Advance, a period
which commences (i) in the case of the initial Libor Interest Period, on the
date the Advance is made or converted from another Type of Accommodation, and
(ii) in the case of any subsequent Libor Interest Period, on the last day of the
immediately preceding Libor Interest Period, and which ends, in either case, on
the day selected by a Borrower in the applicable Borrowing Notice or Election
Notice. The duration of each Libor Interest Period shall be 1, 2, 3 or 6 months
(or such shorter or longer period as may be approved by the Lenders making Libor
Rate Advances), unless the last day of a Libor Interest Period would otherwise
occur on a day other than a Business Day, in which case the last day of such
Libor Interest Period shall be extended to occur on the next Business Day, or if
such extension would cause the last day of such Libor Interest Period to occur
in the next calendar month, the last day of such Libor Interest Period shall
occur on the preceding Business Day.
"LIBOR RATE" means, for each Libor Interest Period for each Libor Rate
Advance, the rate of interest per annum which appears on page 3750 of the
Telerate screen at approximately 11:00 a.m. (London time) two Business Days
before the first day of such Libor Interest Period; or if such Telerate screen
is not available, then the rate of interest per annum which appears on the
Reuters screen LIBOR01 page at approximately 11:00 a.m. (London time) two
Business Days before the first day of such Libor Interest Period; or if such
Reuters screen is not available, then the Libor Rate shall be the annual rate of
interest determined by the Administrative Agent as being the rate of interest at
which it would be prepared to offer to leading banks in the London interbank
market for delivery on the first day of the relevant Libor Interest Period for a
period equal to the Libor Interest Period, deposits in U.S. Dollars and amount
comparable to the relevant Libor Rate Advance requested by a Borrower.
"LIBOR RATE ADVANCE" has the meaning specified in the definition of
Advance.
18
- 17 -
"LIEN" means any mortgage, charge, pledge, hypothecation, security
interest, assignment, encumbrance, lien (statutory or otherwise), mechanics'
lien, construction lien, materialmen's lien, charge, title retention agreement
or arrangement, restrictive covenant or other encumbrance of any nature or any
other arrangement or condition that in substance secures payment or performance
of an obligation.
"MAJORITY LENDERS" means (i) at all times after the occurrence of an
Event of Default and during its continuance, Lenders who, taken together, are
beneficially entitled to at least 66-2/3% of the aggregate Accommodations
Outstanding, and (ii) at all other times, Lenders whose Commitments, taken
together, are at least 66-2/3% of the aggregate amount of the Commitments.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on the
business, operations, results of operations, prospects, assets, liabilities or
financial condition of the Borrowers and the Restricted Subsidiaries taken as a
whole or a material adverse effect on the ability of the Borrowers to perform
their respective obligations under the Credit Agreement or on the ability of the
Administrative Agent and the Lenders to enforce such obligations.
"MATERIAL AGREEMENTS" means the agreements listed in Schedule 7.01(u)
and any other agreement, contract or similar instrument to which a Borrower or
any of the Restricted Subsidiaries is a party or to which any of its property or
assets may be subject which account for greater than 5% of the annual
consolidated revenues of any Borrower or for which breach, non-performance,
cancellation, failure to renew, termination, revocation or lapse could
reasonably be expected to have a Material Adverse Effect.
"MILLENNIUM COMPLIANT" means that the computer systems are capable of
the following functions immediately before, during and after January 1, 2000 (i)
handling date information involving all and any dates before, during and after
January 1, 2000, including, accepting date input (either from an internal or
external source), providing date output and performing date calculations in
whole or in part, (ii) operating accurately without interruption on and in
respect of any and all dates before, during and after January 1, 2000 and
without any change in performance, (iii) responding to and processing any digit
year input (either from an internal or external source) without creating any
ambiguity as to the century, and (iv) receiving, storing, providing and
communicating date output information without creating ambiguity as to the
century.
"MULTIEMPLOYER PLAN" means a multiemployer plan as defined in Section
4001(a)(3) of ERISA to which a Borrower or any of their respective Subsidiaries
or any ERISA Affiliate is making or accruing an obligation to make contributions
or has made or accrued an obligation to make contributions or otherwise has any
liability.
19
- 18 -
"NATIONWIDE" means Nationwide Electric, Inc., a corporation formed
under the laws of Delaware.
"NATIONWIDE ALTERNATE OPERATING ACCOUNTS" means Nationwide's U.S.
Dollar accounts maintained by the U.S. Alternate Operating Lenders at their
principal office in such city as may be notified to the Administrative Agent,
the particulars of which shall be notified by the U.S. Alternative Operating
Lender to Nationwide.
"NET PROCEEDS" means, with respect to: (i) the issuance or creation of
any Debt, whether private or public, of any Person, the amount equal to the
aggregate amount received in cash in connection with such issuance or creation
less all reasonable fees (including, without limitation, reasonable legal fees),
commissions and other out-of-pocket expenses incurred or paid for by such Person
in connection with such creation or issuance, (ii) with respect to the issuance
by any Person of any shares, options, warrants or securities convertible into
shares or other securities or of any capital contributions by any Person in such
Person, an amount equal to the aggregate amount received in cash in connection
with such issuance or contribution, and (iii) with respect to asset dispositions
by any Person, 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 disposition less all reasonable fees incurred or paid for by the
Person in connection with the disposition and all sales, goods and services,
value-added or similar taxes incurred in connection with the disposition.
"NON-CONSENTING LENDER" has the meaning specified in Section 2.10(3).
"NON-CONSENTING LENDER'S COMMITMENT" has the meaning specified in
Section 2.10(3).
"NON-RECOURSE SUBSIDIARY" means AOC Canada Ltd., AOC ▇▇▇▇▇ & Root
Canada Ltd., 1341996 Ontario Inc., 1357248 Ontario Inc. and their respective
successors and assigns.
"OPERATING COMMITMENTS" means, collectively, the Canadian Operating
Commitment, the U.S. Operating Commitment, the U.S. Alternate Operating
Commitment and, in the singular, any one of them.
"OPERATING FACILITIES" means, collectively, the Canadian Operating
Facility, the U.S. Operating Facility and the U.S. Alternate Operating Facility
and, in the singular, any one of them.
"ORIGINAL CURRENCY" has the meaning specified in Section 11.12(1).
20
- 19 -
"OTHER CURRENCY" has the meaning specified in Section 11.12(1).
"OWNED PROPERTIES" means, collectively, (i) the land and premises owned
by a Borrower or any Restricted Subsidiary on the date of this Agreement which
are listed on Schedule 7.01(i), and (ii) after the date of this Agreement those
lands and premises notified to the Administrative Agent pursuant to Section
8.01(c), but shall exclude (ii) lands and premises sold or otherwise disposed of
as permitted in this Agreement as and from the date of such sale or
distribution.
"▇▇▇▇▇▇▇" means ▇▇▇▇▇▇▇ Electric Holdings, Inc., a Delaware
corporation.
"PARTICIPANT" has the meaning specified in Section 11.08(3).
"PERMITTED ACQUISITION" shall mean an Acquisition in respect of which
the consent of the Supermajority Lenders or all of the Lenders, as the case may
be, has been obtained in accordance with Section 8.02(j).
"PERMITTED LIENS" means, in respect of any Person, any one or more of
the following:
(a) Liens for taxes, assessments or governmental charges or levies which
are not delinquent or the validity of which is being contested at the time by
the Person in good faith by proper legal proceedings if, in the Majority
Lenders' opinion, adequate provision has been made for their payment;
(b) inchoate or statutory Liens of contractors, subcontractors, mechanics,
workers, suppliers, materialmen, carriers and others in respect of construction,
maintenance, repair or operation of assets of the Person, provided that such
Liens are related to obligations and in respect of which adequate holdbacks are
being maintained as required by applicable law or such Liens are being contested
in good faith by appropriate proceedings and in respect of which there has been
set aside a reserve (segregated to the extent required by GAAP) in an adequate
amount and provided further that such Liens do not materially interfere with the
use of such assets in the operation of the business of the Person;
(c) easements, rights-of-way, servitudes, restrictions and similar rights
in real property comprised in the assets of the Person or interests therein
granted or reserved to other Persons, provided that such rights do not
materially interfere with the use of such real property in the operation of the
business of the Person;
(d) title defects or irregularities which are of a minor nature and which
do not materially interfere with the use of the assets subject thereto in the
operation of the business of the Person;
21
- 20 -
(e) Liens securing appeal bonds and other similar Liens arising in
connection with court proceedings (including, without limitation, surety bonds,
security for costs of litigation where required by law and letters of credit) or
any other instruments serving a similar purpose;
(f) attachments, judgments and other similar Liens arising in connection
with court proceedings; provided, however, that the Liens are in existence for
less than 10 days after their creation or the execution or other enforcement of
the Liens is effectively stayed or the claims so secured are being actively
contested in good faith and by proper legal proceedings;
(g) the reservations, limitations, provisos and conditions, if any,
expressed in any original grant from the Crown of any real property or any
interest therein or in any comparable grant in jurisdictions other than Canada,
provided they do not materially interfere with the use of such real property in
the operation of the business of the Person;
(h) Liens given to a public utility or any municipality or governmental or
other public authority when required by such utility or other authority in
connection with the operation of the business or the ownership of the assets of
the Person, provided that such Liens do not materially interfere with the use of
such assets in the operation of the business of the Person;
(i) servicing agreements, development agreements, site plan agreements, and
other agreements with Governmental Entities pertaining to the use or development
of any of the assets of the Person, provided same are complied with and do not
materially interfere with the use of the assets subject thereto in the operation
of the business of the Person including, without limitation, any obligations to
deliver letters of credit and other security as required;
(j) the right reserved to or vested in any Governmental Entity by any
statutory provision or by the terms of any lease, licence, franchise, grant or
permit of the Person, to terminate any such lease, licence, franchise, grant or
permit, or to require annual or other payments as a condition to the continuance
thereof;
(k) Liens in favour of the Administrative Agent and the Lenders created by
the Security Documents;
(l) Purchase Money Mortgages permitted under Section 8.02(a); and
(m) Liens disclosed in Schedule 8.02(b) but only to the extent such Liens
conform to their description in Schedule 8.02(b), and includes any extension or
renewal thereof provided the amount so secured does not exceed the original
amount secured immediately prior to the extension, renewal or refinancing and
the scope of security creating the Lien is not extended.
22
- 21 -
"PERSON" means a natural person, partnership, corporation, joint stock
company, trust, unincorporated association, joint venture or other entity or
Governmental Entity, and pronouns have a similarly extended meaning.
"PLAN" means an employee benefit plan (other than a Multi-employer
Plan) maintained by a Borrower or any of its Subsidiaries or any ERISA Affiliate
and covered by Title IV of ERISA, Section 302 of ERISA or Section 412 of the
Code.
"PRIORITY ACCOUNTS PAYABLE" means, at any time, the aggregate amount of
accounts payable due and owing by the Borrowers and the Restricted Subsidiaries
to Subcontractors which rank or are capable of ranking in priority to the
Security pursuant to applicable law including, without limitation, any statutory
Lien or trust.
"PURCHASE MONEY MORTGAGE" means any security interest charging personal
property acquired by a Borrower or a Restricted Subsidiary, which is granted or
assumed by a Borrower or a Restricted Subsidiary or which arises by operation of
law in favour of the transferor concurrently with and for the purpose of the
acquisition of such property, in each case where (i) the principal amount
secured by the security interest is not in excess of the lesser of (y) the
purchase price (after any post-closing adjustment), or (z) the fair market
value, of the property acquired; and (ii) such security interest extends only to
the property acquired and the proceeds thereof, including any extension, renewal
or refinancing thereof provided the same conditions are satisfied.
"REFERENCE DISCOUNT RATE" means, in respect of any Bankers' Acceptances
or Drafts to be purchased by a Domestic Lender or any other Person pursuant to
Article 4 by (i) a Schedule I Canadian bank, the average rate for Canadian
Dollar Bankers' Acceptances having a term comparable to such Bankers'
Acceptances and Drafts that appears on the Reuters Screen CDOR Page (or such
other page as is a replacement page for such Bankers' Acceptances) at 10:00 a.m.
(Toronto time); or (ii) by any other Domestic Lender or other Person, the
arithmetic average of the discount rates (calculated on an annual basis and
rounded to the nearest fifth decimal place with .000005 being rounded up) quoted
by each Reference Lender at 10:00 am. (Toronto time) as the discount rate at
which the Reference Lender would purchase on the relevant Drawing Date, its own
Bankers' Acceptances or Drafts having an aggregate Face Amount equal to and with
a term to maturity the same as the Bankers' Acceptances or Drafts to be acquired
by the Lenders or such other Person on the Drawing Date. If such rate is not
available as of such time, then the discount rate in respect of such Bankers'
Acceptances and Drafts shall mean the discount rate quoted by the Administrative
Agent for the purchase, on the relevant Drawing Date, of its own Bankers'
Acceptances or Drafts having an aggregate Face Amount equal to and with a term
to maturity the same as the Bankers' Acceptances or Drafts to be acquired by
such Lender or other Person on such Drawing Date.
23
- 22 -
"REFERENCE LENDERS" means, at any time, the Schedule II Canadian
bank(s) parties hereto or any one of them.
"RELATED PARTY" means, in respect of any Borrower or Restricted
Subsidiary (i) a Person which alone or in combination with others holds a
sufficient number of securities or has contractual rights sufficient to affect
materially the control of the Borrower or Restricted Subsidiary, (ii) a Person
in respect of which a Person referred to in clause (i) alone or in combination
with others holds a sufficient number of securities or has contractual rights
sufficient to affect materially its control, (iii) a Person in respect of which
the Borrower or Restricted Subsidiary alone or in combination with others holds
a sufficient number of securities or has contractual rights sufficient to affect
materially its control, (iv) a Person who beneficially owns, directly or
indirectly, voting securities of the Borrower or Restricted Subsidiary who
exercises control or direction over voting securities of the Borrower or
Restricted Subsidiary or a combination of both carrying more than 10% of the
voting rights attached to all voting securities of the Borrower or Restricted
Subsidiary for the time being outstanding, (v) a director or senior officer of
the Borrower, Restricted Subsidiary or related party of the Borrower or
Restricted Subsidiary, or (vi) an Affiliate of any of the foregoing.
"RELEVANT REPAYMENT DATE" means, in respect of the repayment of all
Accommodations made under (i) the Canadian Operating Facility and the Canadian
Swingline Facility the date which is 364 days after the date hereof (unless
otherwise extended pursuant to Section 2.10 in which case it will be, with
respect to any Consenting Lender or Acquiring Lender, the date to which they are
extended), (ii) the U.S. Operating Facility and the U.S. Alternate Operating
Facility, the date which is 364 days after the date hereof (unless otherwise
extended pursuant to Section 2.10 in which case it will be, with respect to any
Consenting Lender or Acquiring Lender, the date to which it is extended), and
(iii) the Canadian Term Facility and the Canadian Acquisition Facility, November
12, 2004.
"RESTRICTED SUBSIDIARIES" means the subsidiaries listed in Schedule
7.01(p) under the heading "Restricted Subsidiaries" and any other Subsidiary
acquired pursuant to, or incorporated for the purposes of, a Permitted
Acquisition which shall from time to time become guarantors of all of the
obligations of a Borrower under this Agreement and the other Credit Documents
and which have delivered to the Administrative Agent a guarantee and security
over all of their property and assets together with an opinion of counsel, all
in form and substance satisfactory to the Administrative Agent.
"RESTRUCTURING CHARGE" means the Cdn. $11,300,000 restructuring charge
taken by Bracknell in the third Financial Quarter of 1999.
"REVOLVING FACILITIES" means the Operating Facilities and the Canadian
Swingline Facility.
24
- 23 -
"SECURITY" means, at any time, the encumbrances in favour of the
Administrative Agent or the Lenders, or both, in the assets and properties of
the Borrowers and the Restricted Subsidiaries securing their obligations under
this Agreement and the other Credit Documents.
"SECURITY DOCUMENTS" means the agreements described in Schedule 8 and
any other security granted to the Administrative Agent or the Lenders, or both,
as security for the obligations of the Borrowers and the Restricted Subsidiaries
under this Agreement and the other Credit Documents.
"SENIOR SUBORDINATED BRIDGE COMMITMENT LETTER" means that certain
commitment letter dated as of February 28, 2000, as amended by a letter
agreement dated May 31, 2000, between Bracknell, as borrower, and TD Securities
(USA) Inc., as lender pursuant to which senior subordinated credit facilities
are to be made available to Bracknell.
"SENIOR SUBORDINATED BRIDGE LOAN" means the senior subordinated bridge
facility in a maximum principal amount of U.S.$50,000,000 to be made available
to Bracknell or a Restricted Subsidiary pursuant to the terms of the Senior
Subordinated Bridge Commitment Letter.
"SENIOR NET DEBT" means, at any time, the sum of (i) Debt to the
Lenders incurred pursuant to this Agreement minus (ii) the cash or Cash
Equivalents set forth on the consolidated balance sheet of the Borrowers and the
Restricted Subsidiaries determined in accordance with GAAP plus (iii) any such
cash or Cash Equivalents which are required to be added pursuant to Sections
8.01(c)(viii) and 8.01(t).
"STATE" means The State Group Limited, a corporation incorporated under
the laws of Ontario.
"SUBCONTRACTORS" has the meaning specified in Section 8.01(t).
"SUBJECT PROPERTIES" means collectively, the Owned Properties and the
Leased Properties.
"SUBORDINATED DEBT" means the principal amount outstanding at any time
of Debt payable by a Borrower or Restricted Subsidiary which (i) is unsecured,
(ii) has covenants and events of default provisions which are not less
favourable to the Borrower or Restricted Subsidiary than the covenants and
events of default provisions in this Agreement, (iii) has no required redemption
provisions and matures after the latest Relevant Repayment Date, and (iv) is
otherwise subordinate and junior in right of payment to the payment of the
Accommodations Outstanding and other amounts payable under this Agreement on
terms and conditions satisfactory to the Majority Lenders.
25
- 24 -
"SUBSIDIARY" has the meaning specified in the Business Corporations Act
(Ontario) on the date of this Agreement.
"SUBSIDIARIES" means the subsidiaries of Bracknell including, without
limitation, those identified as such in Schedule 7.01(p).
"SUNBELT NOTES" means the interest bearing promissory notes in the
aggregate principal amount of U.S.$21,008,000 (subject to an increase in the
principal amount thereof if paid in shares of Bracknell) made by ▇▇▇▇▇▇▇ and
guaranteed by Bracknell to and in favour of certain selling shareholders in
connection with the acquisition by ▇▇▇▇▇▇▇ of all of the issued and outstanding
shares of Sunbelt Integrated Trade Services, Inc., Quality Mechanical
Contractors, Inc., ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, Inc., ▇▇▇▇▇▇▇ Electric Company, Inc.,
▇▇▇▇▇▇ Industries LLC and Pneu Temp, Inc.
"SUPERMAJORITY LENDERS" means (i) at all times after the occurrence of
an Event of Default and during its continuance, Lenders who, taken together, are
beneficially entitled to at least 75% of the aggregate Accommodations
Outstanding, and (ii) at all other times, Lenders whose Commitments, taken
together, are at least 75% of the aggregate amount of the Commitments.
"SWINGLINE ADVANCES" means Advances made by the Swingline Lender or the
U.S. Alternate Operating Lender under Article 3.
"SWINGLINE LENDER" means Royal Bank of Canada and its successors.
"TOTAL DEBT" means, at any time, the aggregate of all Debt of the
Borrowers and the Restricted Subsidiaries and the Borrowers' ▇▇▇▇-to-Market
Exposure.
"TOTAL NET DEBT" means, at any time, the sum of (i) Total Debt, minus
(ii) the cash or Cash Equivalents set forth on the consolidated balance sheet of
the Borrowers and the Restricted Subsidiaries determined in accordance with GAAP
plus (iii) any such cash or Cash Equivalents which are required to be added
pursuant to Sections 8.01(c)(viii) and 8.01(t).
"U.S. ALTERNATE OPERATING FACILITY" means the revolving operating
credit facility to be made available to Nationwide by the U.S. Alternate
Operating Lender under this Agreement for the purposes set out in Section 2.03.
"U.S. ALTERNATE OPERATING LENDER" means Bank One.
"U.S. BASE RATE" means, at any time, the rate of interest per annum
equal to the greater of (i) the rate which the principal office of the
Administrative Agent in Toronto, Ontario announces from time to time as the
reference rate of interest for loans in U.S. Dollars to its Canadian borrowers,
and (ii) the Federal
26
- 25 -
Funds Rate (converted to a 365 day rate) plus 0.50 of 1%, adjusted automatically
with each change in such rates all without the necessity of any notice to a
Borrower or any other Person.
"U.S. BASE RATE ADVANCE" has the meaning specified in the definition of
Advance.
"U.S. DOLLARS" and "U.S. $" each means lawful money of the United
States of America.
"U.S. DOLLAR ADVANCE" has the meaning specified in the definition of
Advance.
"U.S. FACILITIES" means, collectively, the U.S. Operating Facility and
the U.S. Alternate Operating Facility.
"U.S. MANDATORY BORROWING" has the meaning specified in Section
3.01(10).
"U.S. OPERATING COMMITMENT" has the meaning specified in the definition
of Commitment.
"U.S. OPERATING FACILITY" means the U.S. Dollar revolving operating
credit facility to be made available to Nationwide by certain Foreign Lenders
under this Agreement for the purposes set out in Section 2.03.
"U.S. PRIME RATE" means, at any time, the rate of interest per annum
equal to the greater of (i) the rate which the principal office of the
Administrative Agent in New York, New York announces from time to time as the
reference rate of interest for commercial loans in U.S. Dollars to its U.S.
borrowers, and (ii) the Federal Funds Rate plus 0.50 of 1%, adjusted
automatically with each change in such rates all without the necessity of any
notice to a Borrower or any other Person.
"U.S. PRIME RATE ADVANCE" has the meaning specified in the definition
of Advance.
"WITHDRAWAL LIABILITY" means liability to a Multiemployer Plan as a
result of a complete or partial withdrawal from the Multiemployer Plan, as such
terms are defined in Part 1 of Subtitle E of Title IV of ERISA.
SECTION 1.02. GENDER AND NUMBER.
Any reference in the Credit Documents to gender includes all genders,
and words importing the singular number only include the plural and vice versa.
27
- 26 -
SECTION 1.03. INTERPRETATION NOT AFFECTED BY HEADINGS, ETC.
The provision of a Table of Contents, the division of this Agreement
into Articles and Sections and the insertion of headings are for convenience of
reference only and shall not affect the interpretation of this Agreement.
SECTION 1.04. CURRENCY.
All references in the Credit Documents to dollars, unless otherwise
specifically indicated, are expressed in U.S. currency.
SECTION 1.05. CERTAIN PHRASES, ETC.
In any Credit Document (i) (y) the words "including" and "includes"
mean "including (or includes) without limitation" and (z) the phrase "the
aggregate of", "the total of", "the sum of", or a phrase of similar meaning
means "the aggregate (or total or sum), without duplication, of", and (ii) in
the computation of periods of time from a specified date to a later specified
date, unless otherwise expressly stated, the words "from" means "from and
including" and the words "to" and "until" each mean "to but excluding".
SECTION 1.06. ACCOUNTING TERMS.
All accounting terms not specifically defined in this Agreement shall
be interpreted in accordance with GAAP.
SECTION 1.07. CALCULATIONS ON A PRO FORMA BASIS.
If a Borrower or any Restricted Subsidiary has made an Acquisition
during a period relevant to the determination of Consolidated EBITDA then: (i)
Consolidated EBITDA shall be calculated on a pro forma basis as if such
Acquisition had taken place on the first day of the period; (ii) any
indebtedness of any description incurred or assumed by a Borrower or any
Restricted Subsidiary in connection with the Acquisition, or any indebtedness of
any Person acquired, shall be deemed to have been so incurred, assumed or
acquired on the first day of the period; and (iii) interest shall be deemed to
have accrued on the amount of indebtedness at the rate applicable to Canadian
Prime Rate Advances or U.S. Prime Rate Advance, as the case may be.
SECTION 1.08. RATEABLE PORTION OF ACCOMMODATIONS.
References in this Agreement to a Lender's rateable portion of
Advances, Drawings, Drafts, Bankers' Acceptances and Documentary Credits or
rateable share of payments of principal, interest, Fees or any other amount,
shall mean and refer to a rateable portion or share as nearly as may be rateable
in the circumstances, as determined in good faith by the Administrative Agent.
Each such
28
- 27 -
determination by the Administrative Agent shall be prima facie evidence of such
rateable share.
SECTION 1.09. INCORPORATION OF SCHEDULES.
The schedules attached to this Agreement shall, for all purpose of this
Agreement, form an integral part of it.
SECTION 1.10. CONFLICT.
The provisions of this Agreement prevail in the event of any conflict
or inconsistency between its provisions and the provisions of any of the other
Credit Documents.
SECTION 1.11. ACTIONS ON DAYS OTHER THAN BUSINESS DAYS
Except as otherwise specifically provided herein, where any payment is
required to be made or any other action is required to be taken on a particular
day and such day is not a Business Day and, as a result, such payment cannot be
made or action cannot be taken on such day, then this Agreement shall be deemed
to provide that such payment shall be made or such action shall be taken on the
first Business Day after such day; provided that if such deferral would cause
such payment to be made or such action to be taken in the following calendar
month, such payment shall be made or such action shall be taken on the next
preceding Business Day and interest and fees shall be calculated accordingly. If
the payment of any amount is deferred for any period under this section, then
such period shall, unless otherwise provided herein, be included for purposes of
the computation of any interest or fees payable hereunder.
SECTION 1.12. SEPARATE ACCOMMODATIONS.
(1) With respect to the Canadian Operating Facility, the obligations of
Bracknell and State hereunder shall be joint and several. The obligations of the
Borrowers under all other Credit Facilities shall be several and not joint and
several. Whenever this Agreement makes reference to payment, obligations, rights
or duties of any one or more of the Borrowers or the Lenders without specific
identification or tracing, such reference shall be interpreted, consistent with
Section 2.01 hereof, so as to give effect to the parties' agreements herein that
the U.S. Operating Facility and the U.S. Alternate Operating Facility shall be
treated as separate from the Canadian Term Facility, the Canadian Acquisition
Facility, the Canadian Operating Facility and the Canadian Swingline Facility
subject to cross-collateralization pursuant to the Security Documents. Without
limiting the foregoing, any payments made by Nationwide hereunder shall be
applied for the benefit of the Foreign Lenders, as their respective interests in
the U.S. Facilities may appear, and any payments made by Bracknell or State
hereunder shall be
29
- 28 -
applied for the benefit of the Domestic Lenders, as their respective interests
in the Canadian Facilities may appear.
(2) The foregoing provisions of this Section 1.12 shall not apply at
any time after a declaration pursuant to Section 9.01 that all Accommodations
Outstanding are due and payable. At such time the Lenders may acquire
Commitments and Accommodations Outstanding of other Lenders irrespective of
their status as Domestic Lenders or Foreign Lenders.
----------------------------------
30
- 29 -
ARTICLE 2
CREDIT FACILITIES
SECTION 2.01. AVAILABILITY.
(1) Subject to the provisions of this Agreement, each Lender severally
agrees, on the terms and conditions of this Agreement, to make Accommodations to
the Borrowers rateably in accordance with each such Lender's Commitment.
Accommodations shall be made available as (i) Advances pursuant to Article 3,
(ii) Bankers' Acceptances pursuant to Article 4 under the Canadian Operating
Facility, the Canadian Acquisition Facility and the Canadian Term Facility, and
(iii) in the case of the Issuing Lenders only and pursuant to the Operating
Facilities only, Documentary Credits pursuant to Article 5.
(2) The Swingline Lender agrees, on the terms and conditions of this
Agreement, to make Accommodations available to Bracknell and State in accordance
with its Canadian Swingline Commitment at any time after execution and delivery
by Bracknell and State of the Swingline 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.
(3) The 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 Commitment at any time after
execution and delivery by Nationwide of the 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.
(4) No Accommodations are available under the Canadian Acquisition
Facility as at the date hereof, except in connection with a conversion from one
Type of Accommodation or Advance to another Type of Accommodation or Advance.
(5) No Accommodations are available under the Canadian Term Facility as
at the date hereof, except in connection with a conversion from one Type of
Accommodation or Advance to another Type of Accommodation or Advance.
(6) Accommodations under (i) the Canadian Term Facility and the
Canadian Acquisition Facility shall be made available to Bracknell only by
Domestic Lenders only, (ii) the Canadian Operating Facility shall be made
available to Bracknell and State only by Domestic Lenders only, (iii) the U.S.
Operating Facility shall be made available to Nationwide only by Foreign Lenders
only; and
31
- 30 -
(iv) the U.S. Alternate Operating Facility shall be made available to Nationwide
by the U.S. Alternate Operating Lenders only.
(7) The Administrative Agent shall give each Lender prompt notice of
any (i) Accommodation Notice received from a Borrower and of each Lender's
rateable portion of any Accommodation, and (ii) other notice received by it from
any Borrower under the Agreement.
SECTION 2.02. COMMITMENTS AND FACILITY LIMITS.
(1) The Accommodations Outstanding to all Lenders under (i) the
Canadian Operating Facility (including the Canadian Swingline Commitment) shall
not at any time exceed the Canadian Operating Commitment, (ii) the U.S.
Operating Facility (including the U.S. Alternate Operating Facility) shall not
at any time exceed the U.S. Operating Commitment, (iii) the Canadian Acquisition
Facility shall not at any time exceed the Canadian Acquisition Commitment, and
(iv) the Canadian Term Facility shall not at any time exceed the Canadian Term
Commitment. The Accommodations Outstanding to each Lender under (v) the Canadian
Operating Facility shall not at any time exceed the Lender's Canadian Operating
Commitment, (vi) the Canadian Term Facility shall not at any time exceed the
Lender's Canadian Term Commitment, (vii) the Canadian Acquisition Facility shall
not at any time exceed the Lender's Canadian Acquisition Commitment, (viii) the
U.S. Operating Facility shall not at any time exceed the Lender's U.S. Operating
Commitment, and (ix) the U.S. Alternate Operating Facility shall not at any time
exceed the Lender's U.S. Alternate Operating Commitment. The Accommodations
Outstanding to the Swingline Lender under the Canadian Swingline Facility shall
not at any time exceed the Canadian Swingline Commitment.
(2) The Operating Facilities shall revolve and no payment under the
Operating Facilities shall reduce the Operating Commitments or any Lender's
Operating Commitment. The Canadian Swingline Facility shall revolve and no
payment under the Canadian Swingline Facility shall reduce the Canadian
Swingline Commitment or the Lender's Swingline Commitment. The Canadian Term
Facility and the Canadian Acquisition Facility shall not revolve and any amount
repaid or prepaid, as the case may be, under the Canadian Term Facility or the
Canadian Acquisition Facility cannot be reborrowed and reduces the relevant
Commitment (and each Lender's Commitment, rateably) by the amount repaid or
prepaid, as the case may be.
(3) A conversion from one Type of Accommodation or Advance to another
Type of Accommodation or Advance shall not constitute a repayment or prepayment.
32
-31-
SECTION 2.03. USE OF PROCEEDS AND LIMITATIONS ON ACCOMMODATIONS.
(1) State and Bracknell shall use the proceeds of Accommodations under
the Canadian Operating Facility and the Canadian Swingline Facility for their
general corporate purposes only and not for Acquisitions or for the purpose of
prepaying amounts under Section 11.07(6).
(2) Nationwide shall use the proceeds of Accommodations under the U.S.
Operating Facility, for its general corporate purposes and not for Acquisitions
or for the purpose of prepaying amounts under Section 11.07(6).
(3) Bracknell has used the proceeds of Accommodations under the
Canadian Term Facility for the purpose specified in the Amended and Restated
Credit Agreement.
(4) Bracknell has used the proceeds of Accommodations under the
Canadian Acquisition Facility for the purpose specified in the Amended and
Restated Credit Agreement.
(5) Nationwide shall use the proceeds of Accommodations under the U.S.
Alternate Operating Facility for its general corporate purposes and not for
Acquisitions or for the purpose of prepaying amounts under Section 11.07(6).
SECTION 2.04. MANDATORY REPAYMENTS AND REDUCTIONS OF COMMITMENTS.
(1) The Borrowers shall repay (subject to Section 9.01) and there shall
become due and payable on the Relevant Repayment Date, the Accommodations
Outstanding under each of the Canadian Operating Facility, the Canadian
Swingline Facility and the U.S. Operating Facility, together with all accrued
interest and Fees and all other amounts payable in connection with the Operating
Facilities and the Canadian Swingline Facility.
(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 5% commencing January 31, 2001 and ending with the Financial
Quarter ending October 31, 2003 and thereafter at the rate of 10% commencing
with the Financial Quarter ending January 31, 2004 and ending with the Financial
Quarter ending October 31, 2004 provided that all Accommodations Outstanding
shall have been paid in full on October 31, 2004.
33
-32-
(3) Nationwide shall repay (subject to Section 9.01) and there shall
become due and payable on the Relevant Repayment Date, the Accommodations
Outstanding under the U.S. Alternate Operating Facility, together with all
accrued interest and Fees and all other amounts payable in connection with the
U.S. Alternate Operating Facility.
(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, or incurs any Subordinated Debt, an amount equal to 100% of the
Net Proceeds shall be paid (i) firstly to repay amounts outstanding under, and
permanently cancel, the Senior Subordinated Bridge Loan; (ii) secondly to repay
amounts outstanding under the Sunbelt Notes; (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 Operating Facilities, in each case in accordance with
Section 2.09 hereof. 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 such payment is specifically waived by the
requisite Lenders as part of their approval of a Permitted Acquisition or if the
Net Proceeds have been received by a Restricted Subsidiary or a Borrower (other
than Bracknell) as a result of (i) the issuance of securities to another
Restricted Subsidiary or to a Borrower, (ii) a capital contribution by a
Restricted Subsidiary or a Borrower, or (iii) the incurrence of Subordinated
Debt owing to a Borrower or a Restricted Subsidiary by another Borrower or
Restricted Subsidiary.
(5) Subject to 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)(v) and the Net Proceeds thereof are not used for Permitted Acquisitions
within the time period set forth therein, an amount equal to (i) 50% of all Net
Proceeds not so used which exceed $1,000,000 but which are less than or equal to
$10,000,000 in the aggregate in any Financial Year, and (ii) 100% of Net
Proceeds not so used which exceed $10,000,000 in the aggregate in any Financial
Year, 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
34
-33-
reduced by such amount), in each case in accordance with Section 2.09 hereof.
Such payment shall be made on the first Business Day following the expiry of the
three month period. No payment of Net Proceeds shall be required to be made
pursuant to this subsection if such payment is specifically waived by the
requisite Lenders as part of their approval of a Permitted Acquisition or if the
assets have been sold or otherwise disposed of to a Borrower or a Restricted
Subsidiary.
(6) If, on any day, the Accommodations Outstanding under a Credit
Facility exceed 105% of the Commitments thereunder due to exchange rate
fluctuations, the Borrowers shall on the third Business Day following such day
(i) repay Floating Rate Advances outstanding under such Credit Facility; or (ii)
pay an amount to the Administrative Agent and irrevocably authorize and direct
the Administrative Agent to apply such payment to Libor Rate Advances or as
payment in respect of the Borrower's reimbursement obligation in respect of
Drawings, on the next maturity date for a Libor Rate Advance or Drawing, as the
case may be, such that the Accommodations Outstanding under such Credit
Facility, after giving effect thereto, do not exceed the Commitment thereunder.
SECTION 2.05. OPTIONAL PREPAYMENTS AND REDUCTIONS OF COMMITMENTS.
(1) Subject to the next following sentence and to the provisions of
this Agreement, if a Borrower has, upon the number of Business Days' notice to
the Administrative Agent specified in Schedule 5, delivered a notice to the
Administrative Agent stating the proposed date and aggregate principal amount of
any prepayment of Accommodations Outstanding or reduction of the Lenders'
Commitment, it shall, on that date, pay to the Lenders the amount of the
prepayment and the amount, if any, by which the Accommodations Outstanding under
the Credit Facility exceed the proposed reduced Commitment. The Borrowers shall
not be permitted to prepay all Accommodations outstanding under the Credit
Facility so long as there is any amount owing under the Bracknell Limited
Partnership Facility. No prepayment of an Operating Facility shall reduce the
Operating Commitment related thereto unless the relevant Borrower has also
requested a reduction of such Operating Commitment. Each partial prepayment and
reduction shall be in an aggregate minimum principal amount of U.S. $1,000,000
and U.S. $500,000 integral multiples thereof and the Lenders' Commitment, to the
extent so requested, shall be so reduced on such date. The Borrower shall
prepay (i) a Libor Rate Advance only on the last day of the Libor Interest
Period applicable to it, and (ii) the amount of any Drawing only on the maturity
date for the relevant BA Instrument.
(2) Subject to the next sentence, if the Credit Facilities are prepaid
from the proceeds of Commercial Debt, the Borrowers shall pay to the Lenders a
fee equal to (i) one (1%) percent of the amount so prepaid if such prepayment
occurs on or prior to October 31, 2001, (ii) three quarters of one (.75%)
percent of the amount
35
-34-
so prepaid if such prepayment occurs after October 31, 2001 but on or prior to
October 31, 2003, or (iii) one half of one (.50%) percent of the amount so
prepaid if such prepayment occurs after October 31, 2003 but on or prior to
October 31, 2004. The fee required to be paid pursuant to this Section 2.05(2)
may be waived or decreased by the Majority Lenders.
SECTION 2.06. CHANGES TO APPLICABLE MARGINS AND APPLICABLE FACILITY
FEE.
(1) The changes in the margins and fees contemplated in the definitions
of Applicable Margin and Applicable Facility Fee shall be effective as of the
first day of the Financial Quarter in which the Compliance Certificate
contemplated under Section 8.01 is required to be delivered. With respect to any
payment of interest or fees which is required to be made between the first day
of any Financial Quarter and the date on which the Compliance Certificate is
delivered (the "STUB PERIOD"), the Applicable Margin or Applicable Facility Fee,
as the case may be, used to calculate the amount of such payment shall be the
Applicable Margin or Applicable Facility Fee, as the case may be, for the
previous Financial Quarter. Upon receipt of each Compliance Certificate, the
Administrative Agent shall immediately determine the amount of any overpayment
or underpayment of interest or fees during the immediately preceding Stub Period
and notify Bracknell and the Lenders of the amount. The determination by the
Administrative Agent shall constitute, in the absence of manifest error,
conclusive evidence of the amount of the overpayment or underpayment, as the
case may be. In the event of an underpayment, the Borrowers shall, upon receipt
of the notice, pay to the Lenders, in accordance with Section 2.08, the amount
of the underpayment. In the event of an overpayment, the amount of the
overpayment shall be credited and applied to succeeding payments of interest and
fees as they become due until the amount has been fully applied.
(2) If at the time of a change in the Applicable Margin applicable to a
Drawing pursuant to the preceding subsection there exist any outstanding
Drawings under the Credit Facilities, then (i) in the case of an increase in
such Applicable Margin, the relevant Borrower shall pay to the Administrative
Agent (for the rateable account of the relevant Lenders); or (ii) in the case of
a decrease in such Applicable Margin, the relevant Lenders (rateably) shall
credit the Borrowers, in each case, an amount in respect of each such Drawing
equal to the product obtained by multiplying (A) the product obtained by
multiplying (w) the difference between the Applicable Margin in effect prior to
such change and the Applicable Margin in effect immediately after such change,
by (x) the aggregate Face Amount of such Drawing, by (B) the quotient obtained
by dividing (y) the number of days to maturity remaining in respect of such
Drawing, by (z) 365 days. Any payment or credit as a result of a change in the
Applicable Margin shall be made, in respect of Drawings, on the maturity date
thereof in accordance with Article 4.
36
-35-
(3) Upon the occurrence and during the continuance of a Default or
Event of Default, each of the Applicable Margins and the Applicable Facility Fee
shall revert to the highest rates provided for in Schedule 6.
(4) If the Administrative Agent or any of the Lenders believes, in good
faith, that the financial condition of a Borrower or any Restricted Subsidiary
has deteriorated so as to result in the most recently delivered Compliance
Certificate being inaccurate in any material respect, then at the request of the
Administrative Agent, Bracknell shall, within 2 Business Days of a request
therefor, provide to the Administrative Agent a pro forma calculation of the
ratio of Total Net Debt to Consolidated EBITDA. The Administrative Agent may, on
the basis of the pro forma calculations, adjust the Applicable Margins and the
Applicable Commitment Fee upward in accordance with the pro forma calculation or
as otherwise agreed between Bracknell and the Administrative Agent.
SECTION 2.07. FEES.
(1) The Borrowers shall pay to the Administrative Agent, on the first
day of each year during the term of the Credit Agreement, the annual agency fee
that is due and payable pursuant to the commitment letter dated September 21,
1999.
(2) The Borrowers shall pay to the Administrative Agent for the account
of the Lenders, a facility fee at a rate equal to the Applicable Facility Fee
from time to time multiplied by the aggregate Commitments (irrespective of
Accommodations Outstanding from time to time) to be calculated on an annual
basis using a 365 day year, and payable quarterly in arrears on the last day of
each Financial Quarter.
SECTION 2.08. PAYMENTS UNDER THIS AGREEMENT.
(1) Unless otherwise expressly provided in this Agreement, each
Borrower shall (i) make any payment required to be made by it to the
Administrative Agent or any Lender (A) in the case of payments made by Bracknell
or State, by depositing the amount of the payment in the relevant currency to
the relevant Borrower's Account not later than 10:00 a.m. (Toronto time) on the
date the payment is due or by wire transfer of immediately available funds in
the amount of the payment in the relevant currency to the Administrative Agent,
as instructed by the Administrative Agent from time to time, not later than
10:00 a.m. (Toronto time) on the date the payment is due (B) in the case of
payments made by Nationwide, by wire transfer of immediately available funds in
the amount of the payment in the relevant currency to the Administrative Agent,
as instructed by the Administrative Agent from time to time, not later than
10:00 a.m. (Toronto time) on the date the payment is due, and (ii) provide to
the Administrative Agent, upon the number of Business Days' notice to the
Administrative Agent specified in
37
-36-
Schedule 5, a notice of repayment which shall be irrevocable and binding on the
Borrower and shall specify (x) the date of repayment and (y) the Credit Facility
which is being repaid. The Borrower shall make each such payment (iii) in
Canadian Dollars, if the Accommodation was originally made in or has been
converted to Canadian Dollars, and (iv) in U.S. Dollars, if the Accommodation
was originally made in or has been converted to U.S. Dollars. The Administrative
Agent shall distribute to each Lender, promptly on the date of receipt by the
Administrative Agent of any payment, an amount equal to the amount then due each
Lender. If the distribution is not made on that date, the Administrative Agent
shall pay interest on the amount for each day, from the date the amount is
received by the Administrative Agent until the date of distribution, at the
prevailing interbank rate for late payments. Any amount received by the
Administrative Agent for the account of the Lenders shall be held in trust for
their benefit until a distribution.
(2) Unless otherwise expressly provided in this Agreement, the
Administrative Agent shall make Accommodations and other payments to the
Borrowers under this Agreement (A) in the case of Accommodations or other
payments made to Bracknell or State, by crediting the relevant Borrower's
Account (or causing the Borrower's Account to be credited) with the amount of
the payment in the relevant currency not later than 1:00 p.m. (Toronto time) on
the date the payment is to be made or by wire transfer of immediately available
funds in the amount of the payment in the relevant currency to the relevant
Borrower, as instructed by such Borrower from time to time, not later than 1:00
p.m. (Toronto time) on the date the payment is to be made and (B) in the case of
Accommodations or other payments made to Nationwide, by wire transfer of
immediately available funds in the amount of the payment in the relevant
currency to Nationwide, as instructed by Nationwide from time to time, not later
than 1:00 p.m. (Toronto time) on the date the payment is to be made.
(3) Each Borrower hereby authorizes each Lender, if and to the extent
payment owed to such Lender by the Borrower is not made to the Administrative
Agent when due, to charge from time to time any due amount against any or all of
the Borrowers' Accounts with the Lender.
SECTION 2.09. APPLICATION OF PAYMENTS AND PREPAYMENTS.
(1) All repayments or prepayments received by the Administrative Agent
pursuant to Sections 2.04 and 2.05 in respect of the Canadian Term Commitment
and the Canadian Acquisition Commitment shall be applied by the Administrative
Agent to the amounts due pursuant to Sections 2.04(2) and 2.04(3), as the case
may be, in the inverse order of their maturity.
(2) All amounts received by the Administrative Agent from or on behalf
of any of the Borrowers and not previously applied pursuant to this
38
-37-
Agreement or any other Credit Document shall be applied by the Administrative
Agent as follows (i) first, in reduction of such Borrower's obligations to pay
any unpaid interest and any Fees which are due and owing, (ii) second, in
reduction of the Borrower's obligations to pay any claims or losses referred to
in Section 11.06, (iii) third, in reduction of the Borrower's obligations to pay
any amounts due and owing on account of any unpaid principal amount of Advances
which is due and owing, (iv) fourth, in reduction of the Borrower's obligations
to pay any other unpaid Accommodations Outstanding which are due and owing, (v)
fifth, in reduction of any other obligation of the Borrower under this Agreement
and the other Credit Documents, and (vi) sixth, to the Borrower or such other
Persons as may lawfully be entitled to or directed to receive the remainder.
SECTION 2.10. EXTENSION OF OPERATING FACILITIES AND CANADIAN SWINGLINE
FACILITY.
(1) By notice in writing to the Administrative Agent given not more
than 90 days and not less than 60 days prior to the date which is 364 days after
the date of this Agreement, Bracknell may request each Domestic Lender (other
than a Domestic Lender which was a Non-Consenting Lender in respect of any
previous request under this Section 2.10) to extend the Relevant Repayment Date
of the Canadian Operating Facility (including the Canadian Swingline Facility)
for an additional period of 364 days. By notice in writing to the Administrative
Agent given not more than 90 days and not less than 60 days prior to the date
which is 364 days after the date of this Agreement, Nationwide may request each
Foreign Lender (other than a Foreign Lender which was a Non-Consenting Lender in
respect of any previous request under this Section 2.10) to extend the Relevant
Repayment Date of the U.S. Operating Facility including the U.S. Alternate
Operating Facility for an additional period of 364 days. The Administrative
Agent shall immediately advise each relevant Lender of the requested extension.
(2) Each Lender shall advise the Administrative Agent in writing as to
whether it consents to such requested extension within 21 days of receipt by the
Administrative Agent from Bracknell or Nationwide, as the case may be, of the
notice requesting such extension. If any relevant Lender does not provide such
notice within such time, such Lender shall be deemed to have refused the
extension. Not more than two Business Days following (i) the last day for
receipt by the Administrative Agent of such notices; or (ii) if all such Lenders
shall have provided such notice, the day on which the last of such notices shall
have been received by the Administrative Agent, the Administrative Agent shall
advise Bracknell or Nationwide, as the case may be, and each such Lender, with
respect to each such Lender, whether such Lender has consented to the extension
of the Relevant Repayment Date requested by Bracknell or Nationwide, as the case
may be, pursuant to Section 2.10(1) or has refused, or is deemed to have
refused, such extension, and the Accommodations Outstanding of each such Lender.
39
-38-
(3) In accordance with this Section 2.10(3), each Lender consenting to
an extension of the Relevant Repayment Date in respect of its Operating
Commitment (a "CONSENTING LENDER") may offer, at the Consenting Lender's sole
discretion, to acquire all or any portion of the Lender's Operating Commitment
and the Accommodations Outstanding under the Operating Facility, of (i) each
Domestic Lender in the case of a Consenting Lender which is a Domestic Lender,
and (ii) each Foreign Lender in the case of a Consenting Lender which is a
Foreign Lender, which has not consented to such extension (each a
"NON-CONSENTING LENDER") by giving written notice to the Administrative Agent of
the portion of the Lender's Operating Commitment of each Non-Consenting Lender
(each a "NON-CONSENTING LENDER'S COMMITMENT") and Accommodations Outstanding
under the Operating Facility which such Consenting Lender is prepared to
acquire. Such notice shall be given not more than seven (7) Business Days
following receipt by such Consenting Lender of the notice given by the
Administrative Agent pursuant to Section 2.10(2). If more than one Consenting
Lender gives notice to the Administrative Agent that it wishes to acquire all or
a portion of the outstanding Non-Consenting Lender's Operating Commitment and
Accommodations Outstanding under the Operating Facility, then, to the extent
that the amount of such Non-Consenting Lender's Operating Commitment and
Accommodations Outstanding under the Operating Facility which such Consenting
Lenders wish to acquire exceeds the amount of the Non-Consenting Lender's
Operating Commitment and Accommodations Outstanding under the Operating
Facility, each of the Consenting Lenders shall be deemed to have offered to
acquire its rateable portion (determined on a pro rata basis by the
Administrative Agent according to the respective amounts of such Non-Consenting
Lender's Operating Commitment and Accommodations Outstanding under the Operating
Facility which such Consenting Lenders have indicated in such notices that they
wish to acquire) of the Non-Consenting Lender's Operating Commitment and
Accommodations Outstanding under the Operating Facility. The Administrative
Agent shall give written notice to Bracknell or Nationwide, as the case may be,
within two Business Days following the expiry of the time for the Consenting
Lenders to give notice of their offer to acquire, pursuant to this Section
2.10(3), any portion of the Non-Consenting Lender's Operating Commitment and
Accommodations Outstanding under the Operating Facility.
(4) If the Consenting Lenders have not offered to acquire all of the
Non-Consenting Lender's Commitment and the Accommodations Outstanding, then
Nationwide or Bracknell, as the case may be, may arrange for one or more other
financial institutions acceptable to the Administrative Agent which are (i)
Domestic Lenders in the case of the Canadian Operating Facility, or (ii) Foreign
Lenders in the case of the U.S. Operating Facility or the U.S. Alternate
Operating Facility (each, a "SUBSTITUTE LENDER") to offer to acquire the balance
of such Non-Consenting Lender's Operating Commitment and Accommodations
Outstanding thereunder.
40
-39-
(5) If one or more of the Lenders or Substitute Lenders (each, an
"ACQUIRING LENDER") has given notice to the Administrative Agent that it offers
to acquire all or a portion of a Non-Consenting Lender's Operating Commitment
and Accommodations Outstanding under the Operating Facility pursuant to Section
2.10(3) or 2.10(4), the Administrative Agent shall be entitled to accept such
offer by giving notice to each of the Acquiring Lenders setting out the amount
of the Non-Consenting Lender's Operating Commitment and Accommodations
Outstanding under the Operating Facility to be acquired by each of the Acquiring
Lenders in accordance with Section 2.10(3) or 2.10(4) and of the date (the
"ACQUISITION DATE") on which the acquisition shall be effective (which date
shall be the Relevant Repayment Date in respect of such Non-Consenting Lender).
At or before 10:00 a.m. (Toronto time) on the Acquisition Date each of the
Acquiring Lenders shall deposit with, or transfer to, the Administrative Agent
at its specified office for the account of the Non-Consenting Lender an amount
equal to the amount of the Accommodations Outstanding under the Operating
Facility to be acquired by it pursuant to this Section 2.10(5), together with
accrued and unpaid interest and Fees thereon and all other amounts payable to
such Non-Consenting Lender. Upon receipt of such amounts, the Administrative
Agent shall disburse such amount to the Non-Consenting Lender against delivery
of assignment and assumption agreements in the form of Schedule 9. Any
Non-Consenting Lender whose Non-Consenting Lender's Operating Commitment and
Accommodations Outstanding under the Operating Facility are to be assumed by an
Acquiring Lender shall execute all such documents (including an assignment and
assumption agreement in the form of Schedule 9) as may be reasonably required by
the Administrative Agent, Bracknell and the Acquiring Lender to effect such
assignment and assumption.
(6) Subject as provided in Section 2.10(7), in the event that Bracknell
or Nationwide, as the case may be, has requested an extension of the Relevant
Repayment Date pursuant to Section 2.10(1), and (i) such extension has been
agreed to by all relevant Lenders, then the Relevant Repayment Date in respect
of each such Lender shall be extended for a period of 364 days, or (ii) such
extension has been consented to by some, but not all, of the relevant Lenders,
then (x) with respect to the Consenting Lenders and Acquiring Lenders, the
Relevant Repayment Date in respect of each such Lender shall be extended for a
period of 364 days; and (y) with respect to the Non-Consenting Lenders where
there is no Acquiring Lender, the Relevant Repayment Date in respect of each
such Lender shall not be extended and Bracknell or Nationwide, as the case may
be, shall, on the original Relevant Repayment Date, prepay all such
Accommodations Outstanding under the Operating Facility of such Non-Consenting
Lender and thereupon reduce such Non-Consenting Lender's Operating Commitment to
nil, all without affecting the Lender's Operating Commitment of any other
Lender.
(7) Where the aggregate of the Non-Consenting Lender's Operating
Commitments which the Acquiring Lenders pursuant to Section 2.10(3), (4) or (5),
as the case may be, have not agreed to acquire exceeds 51% of the aggregate
41
-40-
amount of the Operating Commitments of those Lenders in respect of which the
applicable request for an extension of the Relevant Repayment Date applies, then
the agreements contemplated by Section 2.10(5) shall not be effective, the
transactions for the acquisition and sale of the Non-Consenting Lender's
Accommodations Outstanding shall not take place, and the Relevant Repayment Date
for the Operating Commitments shall not be extended in respect of any Lender.
(8) Any consent to an extension of the Canadian Operating Commitment of
a Lender shall also include, for purposes of this Section 2.10, a consent to an
extension of its Canadian Swingline Commitment, if any. If a Lender has declined
to extend its Canadian Operating Commitment, it shall also be deemed to have
declined to extend its Canadian Swingline Commitment, if any. In such case, a
Consenting Lender or a Substitute Lender may offer to acquire the Canadian
Swingline Commitment of the non-consenting Lender. The Administrative Agent, in
consultation with Bracknell, shall decide which Consenting Lender or Substitute
Lender shall acquire the Canadian Swingline Commitment and on the Acquisition
Date that Lender shall acquire the Canadian Swingline Commitment of the
non-consenting Lender in accordance with the provisions of Section 2.10(5) of
this Agreement.
SECTION 2.11. COMPUTATIONS OF INTEREST AND FEES.
(1) All computations of interest shall be made by the Administrative
Agent taking into account the actual number of days occurring in the period for
which such interest is payable and (i) if based on the Canadian Prime Rate or
the U.S. Base Rate, on the basis of a year of 365 or 366 days, as the case may
be, or (ii) if based on the Libor Rate or the U.S. Prime Rate, on the basis of a
year of 360 days.
(2) All computations of Fees shall be made by the Administrative Agent
on the basis of a year of 365 or 366 days, as the case may be, taking into
account the actual number of days (including the first day but excluding the
last day) occurring in the period for which the fees are payable.
(3) For purposes of the Interest Act (Canada), (i) whenever any
interest or Fee under this Agreement is calculated using a rate based on a year
of 360 days or 365 days, as the case may be, such rate determined pursuant to
such calculation, when expressed as an annual rate, is equivalent to (x) the
applicable rate based on a year of 360, 365 or 366 days, as the case may be, (y)
multiplied by the actual number of days in the calendar year in which the period
for which such interest or fee is payable (or compounded) ends, and (z) divided
by 360, 365 or 366, as the case may be, (ii) the principle of deemed
reinvestment of interest does not apply to any interest calculation under this
Agreement, and (ii) the rates of interest stipulated in this Agreement are
intended to be nominal rates and not effective rates or yields.
42
-41-
ARTICLE 3
ADVANCES
SECTION 3.01. THE ADVANCES.
(1) Subject to the conditions precedent in Article 6, each Domestic
Lender having a relevant Commitment severally agrees, on the terms and
conditions of this Agreement, to make Advances (i) to Bracknell under the
Canadian Term Facility and the Canadian Acquisition Facility, from time to time
on any Business Day prior to the Relevant Repayment Date, and (ii) to Bracknell
or State under the Canadian Operating Facility, from time to time on any
Business Day prior to the Relevant Repayment Date.
(2) Subject to the conditions precedent in Article 6, the Swingline
Lender agrees, on the terms and conditions of the Agreement, to make Advances
under the Canadian Swingline Facility from time to time on any Business Day
prior to the Relevant Repayment Date.
(3) Subject to the conditions precedent in Article 6, the U.S.
Alternate Operating Lender agrees, on the terms and conditions of the Agreement,
to make Advances under the U.S. Alternate Operating Facility from time to time
on any Business Day prior to the Relevant Repayment Date.
(4) Subject to the conditions precedent in Article 6, the Foreign
Lender having a relevant Commitment severally agrees, on the terms and
conditions of this Agreement, to make Advances to Nationwide under the U.S.
Operating Facility, from time to time on any Business Day prior to the Relevant
Repayment Date.
(5) Advances under the Canadian Operating Facility, the Canadian
Acquisition Facility and the Canadian Term Facility shall be made available as
Canadian Prime Rate Advances, U.S. Base Rate Advances and Libor Rate Advances.
Advances under the U.S. Operating Facility shall be made available as U.S. Prime
Rate Advances and Libor Rate Advances. Advances under the U.S. Alternate
Operating Facility shall be available as U.S. Prime Rate Advances.
(6) Each Borrowing under the Canadian Term Facility, the Canadian
Acquisition Facility and the Canadian Operating Facility shall consist of the
same Types of Advances made to Bracknell or State, as the case may be, on the
same day rateably by the relevant Domestic Lenders.
(7) Each Borrowing under the U.S. Operating Facility shall consist of
the same Types of Advances made to Nationwide on the same day rateably by the
relevant Foreign Lenders.
43
-42-
(8) Each Borrowing under the Canadian Term Facility, the Canadian
Acquisition Facility and the Canadian Operating Facility shall be in minimum
amounts of (i) Cdn. $2,000,000 and Cdn. $1,000,000 multiples thereof in the case
of Canadian Dollar Advances, and (ii) U.S. $2,000,000 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 (i) U.S. $1,000,000 and
U.S.$1,000,000 multiples thereof in the case of Floating Rate Advances, and (ii)
U.S. $1,000,000 and integral multiples of U.S. $1,000,000 in the case of Libor
Rate Advances.
(9) The Swingline Lender shall not make an Accommodation under the
Canadian Swingline 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, the Swingline Lender shall advise the
Administrative Agent of the amount of Accommodations Outstanding under the
Canadian Swingline Facility. In such event (i) the Operating Commitment of the
Domestic Lenders under the Canadian Operating Facility shall be deemed to have
been increased by the amount of the Accommodations Outstanding under the
Canadian Swingline Facility; (ii) the Swingline Lender's Canadian Operating
Commitment shall be deemed to have been increased by the amount of the
Accommodations Outstanding under the Canadian Swingline Facility; (iii) the
amount of the Canadian Swingline Commitment shall be reduced to zero, and (iv) a
Borrowing of Advances under the Canadian Operating Facility (each such
Borrowing, a "CANADIAN MANDATORY BORROWING") shall be made on the next Business
Day by all Domestic Lenders with Canadian Operating Commitments so that
immediately after such Canadian Mandatory Borrowing, each such Lender shall
share rateably in the Accommodations Outstanding under the Canadian Operating
Facility (based on their respective Lender's Canadian 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 repay
the Accommodations Outstanding under the Canadian Swingline Facility. Each
relevant Domestic Lender shall make Advances pursuant to a Canadian Mandatory
Borrowing in the amount and in the manner specified in writing by the
Administrative Agent notwithstanding (iv) that the amount of the Canadian
Mandatory Borrowing may not comply with the minimum amount of Borrowings
otherwise required under this Agreement, (v) that the conditions precedent
specified in Article 6 are not satisfied, (vi) the date of the Canadian
Mandatory Borrowing, and (vii) any reduction in the Canadian Operating
Commitment after any Advances under the Canadian Swingline Commitment were made.
If any Canadian Mandatory Borrowing cannot for any reason be made on the date
required above or the applicable Domestic Lenders for any reason would not at
such time share rateably in the aggregate amount of the Accommodations
Outstanding under the Canadian Swingline Facility and the Canadian Operating
Facility, each Domestic Lender with Canadian Operating Commitments hereby agrees
that it shall forthwith purchase from the Swingline Lender, and each other
Domestic Lender with Canadian Operating
44
-43-
Commitments, such participations in the Advances outstanding under the Canadian
Operating Facility as shall be necessary to cause such Lenders to share in such
Advances rateably, based upon the proportion which each such Lender's Operating
Commitment at the date of the Canadian Mandatory Borrowing bears to the
aggregate amount of the Canadian Operating Commitment and the Canadian Swingline
Commitment on the date of the Canadian Mandatory Borrowing.
(10) The U.S. Alternate Operating Lender shall not make an
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, the 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) the
U.S. Alternate Operating Lender's U.S. Operating Commitment shall be deemed to
have been increased by the amount of the Accommodation Outstanding under the
U.S. Alternate Operating Facility; (iii) the amount of the 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 repay the 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 Lender, 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
45
-44-
such Lender's U.S. Operating 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.
SECTION 3.02. PROCEDURE FOR BORROWING.
(1) Subject to Subsection 3.02(2), each Borrowing shall be made on the
number of days prior notice specified in Schedule 5, given not later than (i)
12:00 noon (Toronto time) in the case of the Canadian Term Facility, the
Canadian Acquisition Facility, the Canadian Operating Facility and the U.S.
Operating Facility by the relevant Borrower to the Administrative Agent. Each
notice of a Borrowing (a "BORROWING NOTICE") shall be in substantially the form
of Schedule 1, shall be irrevocable and binding on the Borrower and shall
specify (i) the Borrower, (ii) the requested date of the Borrowing, (iii) the
Type of Advances comprising the Borrowing, (iv) the Credit Facility under which
the Borrowing is to be made, (v) the aggregate amount of the Borrowing and the
currency thereof, and (vi) in the case of a Libor Rate Advance, the initial
Libor Interest Period. Upon receipt by the Administrative Agent of funds from
the Lenders and fulfilment of the applicable conditions set forth in Article 6,
the Administrative Agent will make such funds available to the Borrower in
accordance with Article 2.
(2) Borrowings under the Canadian Swingline Facility up to a maximum
amount of the Canadian Swingline Commitment may be made without notice from
Bracknell or State by overdraft only in the Borrowers' Accounts of Bracknell or
State and shall be made available by the Swingline Lender by crediting the
Borrowers' Account with previous day funds in the aggregate amount of such
overdraft.
(3) Borrowings under the U.S. Alternate Operating Facility up to a
maximum amount of the U.S. Alternate Operating Commitment may be made on same
day notice by Nationwide not later than 3:00 p.m. Toronto time to the U.S.
Alternate Operating Lender.
SECTION 3.03. CONVERSIONS AND ELECTIONS REGARDING ADVANCES.
(1) Each Advance shall initially be the Type of Advance specified in
the applicable Borrowing Notice and shall bear interest at the rate applicable
to that Type of Advance (determined as provided in Section 3.05) until (i) in
the case of a Libor Rate Advance, the end of the initial Libor Interest Period
specified in the applicable Borrowing Notice, (ii) in the case of a Floating
Rate Advance, the date on which the Advance is repaid in full or is changed to
another Type of Advance pursuant to Section 3.03(2), or (iii) in the case of any
Advance, it is converted to another Type of Accommodation pursuant to Section
3.03(2).
46
-45-
(2) A Borrower may elect to (i) change any Advance to another Type of
Advance in accordance with Section 3.03(3) or convert an Advance of any currency
to another Type of Accommodation of such same currency (other than a Documentary
Credit) upon the number of days notice specified in Schedule 5 (y) in the case
of a Floating Rate Advance, as of any Business Day, and (z) in the case of a
Libor Advance, as of the last day of the Libor Interest Period applicable to the
Libor Rate Advance, or (ii) continue any Libor Rate Advance for a further Libor
Interest Period beginning on the last day of the then current Libor Interest
Period in accordance with Section 3.03(3).
(3) Each election to change from one Type of Advance to another Type of
Advance or Type of Accommodation or to continue a Libor Rate Advance for a
further Libor Interest Period shall be made on the number of days 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. If a Borrower
fails to deliver an Election Notice to the Administrative Agent for any Libor
Rate Advance as provided in this Section 3.03(3), the Libor Rate Advance 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. A Borrower shall not select a Libor
Interest Period which conflicts with the definition of Libor Interest Period in
Section 1.01 or, in the opinion of the Administrative Agent, with the repayment
schedule in Section 2.04.
SECTION 3.04. CIRCUMSTANCES REQUIRING PRIME RATE PRICING.
If (i) by reason of circumstances affecting financial markets
generally, deposits of U.S. Dollars are unavailable to the relevant Lenders,
(ii) adequate and fair means do not exist for ascertaining the applicable
interest rate on the basis provided in the definition of Libor Rate or U.S. Base
Rate, as the case may be, (iii) the making or continuation of any U.S. Dollar
Advances or obligations of the Lenders in connection therewith has been made
impracticable or unlawful (y) by the occurrence of a contingency (other than a
mere increase in rates payable by a Lender to fund the Advances) affecting
financial markets or institutions generally and which materially adversely
affects the funding of the Credit Facilities at any interest rate computed on
the basis of the Libor Rate or the U.S. Base Rate, as the case may be, or (z) by
reason of a change since the date of this Agreement in any applicable law, rule,
regulation, order, treaty or official direction, or in the interpretation
thereof by any Governmental Entity (whether or not having the force of law but,
if not having the force of law, one with which a responsible bank would comply)
affecting financial markets or institutions generally and which results in
47
-46-
the Libor Rate or the U.S. Base Rate, as the case may be, no longer representing
the effective cost to the Lenders of deposits in the market, then,
(a) the right of a Borrower to select any affected Type of Advance shall be
suspended until the circumstances causing the suspension no longer exist and the
Administrative Agent so notifies the Borrower;
(b) if any affected Type of Advance is not yet outstanding, any applicable
Accommodation Notice shall be cancelled and the requested Advance shall not be
made;
(c) if a Libor Rate Advance is already outstanding at any time when the
right of a Borrower to select Libor Rate Advances is suspended, it and all other
Libor Rate Advances in the same Borrowing shall become U.S. Base Rate Advances
or U.S. Prime Rate Advances, as the case may be, on the last day of the then
current Interest Period (or on such earlier date as may be required to comply
with any applicable law, rule, regulation, judgment or order) or, if the
Borrower does not have the right to select U.S. Base Rate Advances at such time,
the Libor Rate Advance shall become a Canadian Prime Rate Advance on the last
day of the then current Libor Interest Period applicable to it (or on such
earlier date as may be required to comply with any applicable law, rule,
regulation, judgment or order) in a principal amount equal to the Equivalent
Cdn. $ Amount of the Libor Rate Advance determined on the date on which the
Advance becomes denominated in Canadian Dollars; and
(d) if any U.S. Base Rate Advance is already outstanding at any time when
the right of a Borrower to select U.S. Base Rate Advances is suspended, it and
all other U.S. Base Rate Advances included in the same Borrowing shall become
Canadian Prime Rate Advances immediately, in a principal amount equal to the
Equivalent Cdn. $ Amount of the related U.S. Base Rate Advance determined on the
date on which the Advance becomes denominated in Canadian Dollars.
SECTION 3.05. INTEREST ON ADVANCES.
(1) The Borrowers shall pay interest on the unpaid principal amount of
each Advance from the date of the Advance until the principal amount of the
Advance is repaid in full, at the following rates per annum:
(a) if and so long as the Advance is a Canadian Prime Rate Advance, at a
rate per annum equal at all times to the sum of the Canadian Prime Rate in
effect from time to time plus the Applicable Margin;
(b) if and so long as the Advance is a U.S. Base Rate Advance, at a rate
per annum equal at all times to the U.S. Base Rate in effect from time to time
plus the Applicable Margin;
48
-47-
(c) if and so long as the Advance is a U.S. Prime Rate Advance, at a rate
per annum equal at all times, to the U.S. Prime Rate in effect from time to
time, plus the Applicable Margin; and
(d) if and so long as the Advance is a Libor Rate Advance, at a rate per
annum equal at all times during each Libor Interest Period for such Libor Rate
Advance, to the sum of the Libor Rate for such Libor Interest Period plus the
Applicable Margin.
(2) Interest on Canadian Prime Rate Advances, U.S. Base Rate Advances
and U.S. Prime Rate Advances shall be calculated and payable in arrears (i) on
the first Business Day of each month, and (ii) when the Advance becomes due and
payable in full, is repaid, or is converted to another Type of Advance or
Accommodation. Interest on Libor Rate Advances shall be calculated and payable
(ii) on the last day of the third month of the Libor Interest Period, if the
Libor Interest Period is six months, and (iv) on the last day of the Libor
Interest Period.
----------------------------------
49
-48-
ARTICLE 4
BANKERS' ACCEPTANCES
SECTION 4.01. ACCEPTANCES AND DRAFTS.
(1) Each Domestic Lender, in respect of such Lender's Canadian
Operating Commitment (if any), Canadian Acquisition Commitment and Canadian Term
Commitment, severally agrees, on the terms and conditions of this Agreement and
from time to time on any Business Day prior to the Relevant Repayment Date (i)
in the case of a Domestic Lender which is willing and able to accept Drafts, to
create acceptances ("Bankers' Acceptances") by accepting Drafts and to purchase
such Bankers' Acceptances in accordance with Section 4.03(2), and (ii) in the
case of a Domestic Lender which is unwilling or unable to accept Drafts, to
purchase completed Drafts (which have not and will not be accepted by the Lender
or any other Lender) in accordance with Section 4.03(2).
(2) Each Drawing shall consist of the creation and purchase of Bankers'
Acceptances or the purchase of Drafts on the same day, in each case for the
Drawing Price, effected or arranged by the relevant Domestic Lenders in
accordance with Section 4.03 and their respective Lender's Commitment.
(3) If the Administrative Agent determines that the Bankers'
Acceptances to be created and purchased or Drafts to be purchased on any Drawing
(upon a conversion or otherwise) will not be created and purchased rateably by
the relevant Domestic Lenders in accordance with Sections 4.01(2) and 4.03, then
the requested Face Amount of Bankers' Acceptances and Drafts shall be reduced to
such lesser amount as the Administrative Agent determines will permit rateable
sharing and the amount by which the requested Face Amount shall have been so
reduced shall be converted or continued, as the case may be, as a Canadian Prime
Rate Advance under the Canadian Operating Facility, Canadian Acquisition
Facility or Canadian Term Facility, as the case may be, to be made
contemporaneously with the Drawing.
SECTION 4.02. FORM OF DRAFTS.
Each Drawing presented by State or Bracknell, as the case may be, shall
(i) be in a minimum amount of Cdn. $2,000,000 and in an integral multiple of
Cdn. $1,000,000, (ii) be dated the date of the Drawing, and (iii) mature and be
payable by such Borrower (in common with all other Drafts presented in
connection with such Drawing) on a Business Day which occurs approximately 1, 2,
3 or 6 months at the election of the Borrower after the Drawing Date and on or
prior to the Relevant Repayment Date and which would not, in the opinion of the
Administrative Agent, conflict with the repayment schedule set out in Section
2.04.
50
-49-
SECTION 4.03. PROCEDURE FOR DRAWING.
(1) Each Drawing shall be made on notice (a "DRAWING NOTICE") given by
Bracknell or State, as the case may be, to the Administrative Agent not later
than 10:00 a.m. (Toronto time) on the number of days notice specified in
Schedule 5. Each Drawing Notice shall be in substantially the form of Schedule
3, shall be irrevocable and binding on such Borrower and shall specify (i) the
Borrower, (ii) the Drawing Date, (iii) the Credit Facility under which the
Drawing is to be made, (iv) the aggregate Face Amount of Drafts to be accepted
and purchased (or purchased, as the case may be), and (v) the contract maturity
date for the Drafts.
(2) Not later than 2:00 p.m. (Toronto time) on an applicable Drawing
Date, each Domestic Lender shall complete one or more Drafts in accordance with
the Drawing Notice and either (i) accept the Drafts and purchase the Bankers'
Acceptances thereby created for the Drawing Price, or (ii) purchase such Drafts
for the Drawing Price, and, in each case, pay to the Administrative Agent the
Drawing Proceeds in respect of such Bankers' Acceptance or Draft, as the case
may be. Upon receipt of the Drawing Proceeds and upon fulfilment of the
applicable conditions set forth in Article 6, the Administrative Agent shall
make funds available to Bracknell or State, as the case may be, in accordance
with Article 2.
(3) Each of Bracknell and State shall, at the request of any Domestic
Lender, issue one or more non-interest bearing promissory notes (each a "BA
EQUIVALENT NOTE") payable on the date of maturity of the unaccepted Draft
referred to below, in such form as the Lender may specify and in a principal
amount equal to the Face Amount of, and in exchange for, any unaccepted Drafts
which the Lender has purchased or has arranged to have purchased in accordance
with Section 4.03(2).
(4) Bankers' Acceptances purchased by a Domestic Lender may be held by
it for its own account until the contract maturity date or sold by it at any
time prior to that date in any relevant Canadian market in such Person's sole
discretion.
SECTION 4.04. PRESIGNED DRAFT FORMS.
(1) To enable the Domestic Lenders to create Bankers' Acceptances or
complete Drafts in the manner specified in this Article 4, Bracknell and State
shall each supply each Domestic Lender with such number of Drafts as it may
reasonably request, duly endorsed and executed on behalf of such Borrower. Each
Lender will exercise such care in the custody and safekeeping of Drafts as it
would exercise in the custody and safekeeping of similar property owned by it
and will, upon request by a Borrower, promptly advise the Borrower of the number
and
51
-50-
designations, if any, of uncompleted Drafts held by it for the Borrower. The
signature of any officer of a Borrower on a Draft may be mechanically reproduced
and BA Instruments bearing facsimile signature shall be binding upon such
Borrower as if they had been manually signed. Even if the individuals whose
manual or facsimile signature appears on any BA Instrument no longer hold office
at the date of signature, at the date of its acceptance by the Lender or at any
time after such date, any BA Instrument so signed shall be valid and binding
upon the Borrower.
(2) Each of Bracknell and State hereby irrevocably appoints each
Domestic Lender as its attorney to sign and endorse on its behalf, manually or
by facsimile or mechanical signature, any Drafts necessary to enable such Lender
to make Drawings in the manner specified in this Article 4. All Bankers'
Acceptances signed or endorsed on a Borrower's behalf by a Lender shall be
binding on such Borrower, all as if duly executed and issued by the Borrower.
SECTION 4.05. PAYMENT, CONVERSION OR RENEWAL OF BA INSTRUMENTS.
(1) Upon the maturity of a BA Instrument, a Borrower may (i) elect to
issue a replacement BA Instrument by giving a Drawing Notice in accordance with
Section 4.03(1), (ii) elect to have all or a portion of the Face Amount of the
BA Instrument converted to a Prime Rate Advance by giving a Borrowing Notice in
accordance with Section 3.02, or (iii) pay, on or before 10:00 a.m. (Toronto
time) on the maturity date for the BA Instrument, an amount in Canadian Dollars
equal to the Face Amount of the BA Instrument (notwithstanding that a Lender may
be the holder of it at maturity). Any such payment shall satisfy the Borrower's
obligations under the BA Instrument to which it relates and the relevant Lender
shall then be solely responsible for the payment of the BA Instrument.
(2) If a Borrower fails to pay any BA Instrument when due or issue a
replacement in the Face Amount of such BA Instrument pursuant to Section
4.05(1), the unpaid amount due and payable shall be converted to a Canadian
Prime Rate Advance made by the Domestic Lenders rateably under the applicable
Credit Facility and shall bear interest calculated and payable as provided in
Article 3. This conversion shall occur as of the due date and without any
necessity for the Borrower to give a Borrowing Notice.
SECTION 4.06. CIRCUMSTANCES MAKING BANKERS' ACCEPTANCES UNAVAILABLE.
(1) If, by reason of circumstances affecting the money market
generally, there is no market for Bankers' Acceptances, (i) the right of the
Borrowers to request a Drawing shall be suspended until the circumstances
causing a suspension no longer exist, and (ii) any Drawing Notice which is
outstanding shall
52
-51-
be deemed to be a Borrowing Notice requesting a Borrowing comprised of Canadian
Prime Rate Advances.
(2) The Administrative Agent shall promptly notify the relevant
Borrower of the suspension of the Borrower's right to request a Drawing and of
the termination of any suspension.
----------------------------------
53
-52-
ARTICLE 5
DOCUMENTARY CREDITS
SECTION 5.01. DOCUMENTARY CREDITS.
(1) The Domestic Issuing Lender agrees, on the terms and conditions of
this Agreement and in reliance on the agreements of the other Lenders with
Canadian Operating Commitments, to issue Documentary Credits under the Canadian
Operating Facility only for the account of Bracknell or State from time to time
on any Business Day prior to the Relevant Repayment Date.
(2) The Foreign Issuing Lender agrees, on the terms and conditions of
this Agreement and in reliance on the agreements of the other Lenders with U.S.
Operating Commitments, to issue Documentary Credits under the U.S. Operating
Facility only for the account of Nationwide from time to time on any Business
Day prior to the Relevant Repayment Date.
(3) The letters of credit and letters of guarantee issued by Royal Bank
of Canada for the account of any of the Borrowers and outstanding on the date of
this Agreement shall be deemed to be Documentary Credits issued pursuant to this
Agreement upon the making of the Initial Accommodation hereunder.
(4) The aggregate Face Amount of all Documentary Credits issued under
the Operating Facilities shall not, at any time, exceed U.S. $10,000,000.
SECTION 5.02. PROCEDURE FOR ISSUE.
(1) Each Issue shall be made on notice (an "ISSUE NOTICE") given by a
Borrower to the Administrative Agent (with a copy to the Issuing Lender) not
later than 11:00 a.m. (Toronto time) on the number of days notice specified in
Schedule 5. The Issue Notice shall be in substantially the form of Schedule 4,
shall be irrevocable and binding on the Borrower and shall specify (i) the
Issuing Lender, (ii) the Borrower, (iii) the Credit Facility under which the
Documentary Credit is to be issued, (iv) the requested date of Issue (the "ISSUE
DATE"), (v) the Type of Documentary Credit, (vi) the Face Amount of the
Documentary Credit, (vii) the expiration date, and (viii) the name and address
of the Beneficiary. A Borrower shall not request an expiry date for a
Documentary Credit which would be after the Relevant Repayment Date.
(2) Not later than 10:00 a.m. (Toronto time) on the Issue Date, the
relevant Issuing Lender shall issue a Documentary Credit completed in accordance
with the Issue Notice in the appropriate form. Upon receipt of the Documentary
Credit and upon fulfillment of the conditions set forth in Article 6, the
Issuing
54
-53-
Lender shall deliver the Documentary Credits to or to the order of the
applicable Borrower.
(3) No Documentary Credit shall require that payment against a
conforming draft be made on the same Business Day upon which the draft was
presented, unless such presentation is made before 10:00 a.m. (Toronto time) on
such Business Day.
(4) Prior to the Issue Date, the relevant Borrower shall provide a
precise description of the documents and the verbatim text of any certificates
to be presented by the Beneficiary which, if presented by the Beneficiary, would
require an Issuing Lender to make payment under the Documentary Credit. The
Issuing Lender may require changes in any such document or certificate.
SECTION 5.03. FORM OF DOCUMENTARY CREDITS.
Each Documentary Credit (i) shall be dated the Issue Date, (ii) shall
have an expiration date on a Business Day which occurs no more than 364 days
after the Issue Date and not after the Relevant Repayment Date, and (iii) shall
comply with the definition of Documentary Credit.
SECTION 5.04. USE OF DOCUMENTARY CREDITS.
The Borrowers shall use Documentary Credits for the sole purpose of
supporting (i) performance, payment, deposit or surety obligations of a
Borrower, in any case if required by law or contract or in accordance with
custom and practice in its industry, or (ii) the replacement of Documentary
Credits existing on the Closing Date.
SECTION 5.05. REIMBURSEMENT OF AMOUNTS DRAWN.
(1) At or before 10:00 a.m. (Toronto time) on the date specified by a
Beneficiary as a drawing date under a Documentary Credit, the relevant Borrower
shall pay to the Issuing Lender an amount in same day funds equal to the amount
to be drawn by the Beneficiary in the currency in which the Documentary Credit
is payable.
(2) If a Borrower fails to pay to the Issuing Lender the amount drawn
under any Documentary Credit, the Issuing Lender shall advise immediately the
Administrative Agent and the unpaid amount due and payable shall be converted
automatically as of such date, and without the necessity for the Borrower to
give any Borrowing Notice pursuant to Section 3.02, to (i) a Canadian Prime Rate
Advance, in the case of a Documentary Credit denominated in Canadian Dollars and
issued by the Domestic Issuing Lender, (ii) a U.S. Base Rate Advance, in the
case of a
55
-54-
Documentary Credit denominated in U.S. Dollars and issued by the Domestic
Issuing Lender, and (iii) a U.S. Prime Rate Advance, in the case of a
Documentary Credit denominated in U.S. Dollars and issued by the Foreign Issuing
Lender, in each case made by the Domestic Lenders rateably under the Canadian
Operating Facility and by the Foreign Lenders rateably under the U.S. Operating
Facility.
SECTION 5.06. DOCUMENTARY CREDIT PARTICIPATION.
(1) In relation to each Documentary Credit issued or deemed to be
issued under the Operating Facilities, each Lender under the applicable
Operating Facility shall acquire from the Domestic Issuing Lender or the Foreign
Issuing Lender, as the case may be, for such Lender's own account and risk, an
undivided interest equal to such Lender's pro rata share of the relevant Issuing
Lender's obligations and rights under such Documentary Credit together with any
amount paid by an Issuing Lender under such Documentary Credit. If an amount is
drawn under any Documentary Credit issued or deemed to be issued under either of
the Operating Facilities and an Issuing Lender is not reimbursed in full by the
relevant Borrower in accordance with the terms of this Agreement or if the
amount is converted to an Advance pursuant to Section 5.05, each of the Lenders
under the relevant Operating Facility shall pay to the applicable Issuing
Lender, upon demand, an amount equal to such Lender's pro rata share of the
amount which is not so reimbursed or shall acquire its pro rata share of the
Advance into which the amount is converted, as the case may be.
(2) If any amount required to be paid by a Lender under either of the
Operating Facilities to an Issuing Lender pursuant to Section 5.06(1) is not
paid to the Issuing Lender on the date the payment is due, the Lender shall pay
to the Issuing Lender, on demand, such amount together with interest, from the
date the payment was to be made until the date it is actually made, at the
prevailing interbank rate. A certificate of the relevant Issuing Lender,
submitted to the relevant Lender with respect to any amounts owing under this
Section shall be conclusive, absent manifest error.
(3) If, at any time after an Issuing Lender has made a payment under
any Documentary Credit issued under an Operating Facility and has received from
the other Lenders their pro rata share of such payment, the Issuing Lender
receives a payment in respect of such Documentary Credit (whether directly from
a Borrower or otherwise), the Issuing Lender will pay to the Administrative
Agent for distribution to the other Lenders, their pro rata share of such
payment; provided, however, that if any such payment so received by the Issuing
Lender shall be required to be returned by the Issuing Lender, each other Lender
shall return to the Issuing Lender the portion thereof previously distributed to
it.
56
-55-
SECTION 5.07. RISK OF DOCUMENTARY CREDITS.
(1) In determining whether to pay under a Documentary Credit, each
Issuing Lender shall be responsible only to determine that the documents and
certificates required to be delivered under the Documentary Credit have been
delivered and that they comply on their face with the requirements of the
Documentary Credit.
(2) The reimbursement obligation of the Borrowers under any Documentary
Credit shall be unconditional and irrevocable and shall be paid strictly in
accordance with the terms of this Agreement under all circumstances, including
(i) any lack of validity or enforceability of a Documentary Credit, (ii) the
existence of any claim, set-off, defence or other right which a Borrower may
have at any time against a Beneficiary, a Lender or any other Person, whether in
connection with the Credit Documents and the transactions contemplated therein
or any other transaction (including any underlying transaction between a
Borrower and the Beneficiary), (iii) any certificate or other document presented
with a Documentary Credit proving to be forged, fraudulent or invalid or any
statement in it being untrue or inaccurate, (iv) the existence of any act or
omission or any misuse of a Documentary Credit or misapplication of proceeds by
the Beneficiary, including any fraud in any certificate or other document
presented with a Documentary Credit, (v) payment by an Issuing Lender under the
Documentary Credit against presentation of a certificate or other document which
does not comply with the terms of the Documentary Credit; in each case unless
such payment constitutes gross negligence or willful misconduct of the Issuing
Lender, or (vi) the existence of a Default or Event of Default.
(3) No Issuing Lender shall be responsible for (i) the validity or
sufficiency of any instrument transferring or assigning or purporting to
transfer or assign a Documentary Credit or the rights or benefits under it or
proceeds of it, in whole or in part, which may prove to be invalid or
ineffective for any reason, (ii) errors, omissions, interruptions or delays in
transmission or delivery of any messages by mail, telecopy or otherwise, (iii)
errors in interpretation of technical terms, (iv) any loss or delay in the
transmission of any document required in order to make a drawing, and (v) any
consequences arising from causes beyond the control of the Issuing Lender,
including the acts or omissions, whether rightful or wrongful, of any
Governmental Entity. None of the above shall affect, impair, or prevent the
vesting of any of the Issuing Lenders' rights or powers under this Agreement.
Any action taken or omitted by any Issuing Lender under or in connection with
any Documentary Credit or the related certificates, if taken or omitted in good
faith, shall not put the Issuing Lender under any resulting liability to the
Borrowers provided that the Issuing Lender acts in accordance with the standards
of reasonable care specified in the Uniform Customs and Practice for Documentary
Credits (1993 Revision), ICC Publication 500 (or any replacement publication).
57
-56-
SECTION 5.08. FEES.
(1) Each Borrower shall pay to the Administrative Agent, for the
account of the relevant Lenders, a Fee at a rate equal to the Applicable Margin
calculated on the basis of the Face Amount of the Documentary Credit for the
period during which the Documentary Credit is outstanding. Such Fee shall be
calculated daily and payable prior to issuance on the Issue Date of issue of a
Documentary Credit in the currency in which the Documentary Credit is payable
and shall be non-refundable.
(2) Each Borrower shall pay to the relevant Issuing Lender (for its own
account) a fronting Fee equal to the greater of (i) 0.125% per annum on the Face
Amount of the Documentary Credit issued under the Operating Facility for which
the Issuing Lender is contingently liable under this Agreement; and (ii) U.S.
$150.00. The fronting fee will be calculated daily and shall be payable prior to
issuance on the Issue Date of each Documentary Credit and shall be
non-refundable.
(3) Each Borrower shall pay to the relevant Issuing Lender, upon the
issuance, amendment or transfer of any Documentary Credit issued by such Lender
and each drawing made under it, the Lender's standard and prevailing documentary
and administrative charges for issuing, amending, transferring or drawing under,
as the case may be, Documentary Credits of similar amount, term and risk.
SECTION 5.09. REPAYMENTS.
(1) If a Borrower is required to repay the Accommodations pursuant to
Article 2 or Article 9, then the Borrower shall pay to the Administrative Agent
for distribution to the Issuing Lender, to the extent required in those
Articles, an amount equal to the relevant Issuing Lender's contingent liability
in respect of (i) any outstanding Documentary Credit, and (ii) any Documentary
Credit which is the subject matter of any order, judgment, injunction or other
such determination (a "JUDICIAL ORDER") restricting payment under and in
accordance with such Documentary Credit or extending the Issuing Lender's
liability under such Documentary Credit beyond its stated expiration date.
Payment in respect of each Documentary Credit shall be due in the currency in
which the Documentary Credit is denominated.
(2) Each Issuing Lender shall, with respect to any Documentary Credit,
upon the later of:
(a) the date on which any final and non-appealable order, judgment or other
such determination has been rendered or issued either terminating the applicable
Judicial Order or permanently enjoining the Lender from paying under such
Documentary Credit; and
58
-57-
(b) the earlier of (i) the date on which either (x) the original
counterpart of the Documentary Credit is returned to the Lender for
cancellation, or (y) the Lender is released by the Beneficiary from any further
obligations, and (ii) the expiry (to the extent permitted by any applicable law)
of the Documentary Credit,
pay to the relevant Borrower an amount equal to the difference between the
amount paid to the Issuing Lender pursuant to Section 5.09(1) and the amounts
paid by the Issuing Lender under the Documentary Credit.
----------------------------------
59
-58-
ARTICLE 6
CONDITIONS
SECTION 6.01. CONDITIONS PRECEDENT TO EFFECTIVENESS.
This Agreement shall be effective subject to and upon the fulfillment
of the following conditions precedent:
(a) no Default or Event of Default has occurred or is continuing;
(b) the representations and warranties of the Borrowers contained in
Section 7.01 are true and correct on the date hereof;
(c) the Administrative Agent has received, in form, substance and dated as
of a date satisfactory to the Lenders and their counsel and in sufficient
quantities for each Lender:
A. a certified copy of the resolutions of the board of directors
of each Borrower approving the amendments to the Amended and
Restated Credit Agreement and other matters contemplated by
this Agreement,
B. a certificate of a senior officer of each Borrower confirming
there have been no changes to the articles and by-laws of each
since the date of the Amended and Restated Credit Agreement,
C. a certificate of the Secretary of each Borrower certifying the
names and true signatures of its officers authorized to sign
this Agreement and the other Credit Documents,
D. a certificate of status, compliance or like certificate with
respect to each Borrower issued by the appropriate
Governmental Entity of the jurisdiction of its incorporation
and of each jurisdiction in which it owns any material assets
or carries on any material business,
E. copies of all corporate and lien searches undertaken against
each Borrower and each Restricted Subsidiary,
F. favourable opinions of counsel to each Borrower with respect
to such matters as may be requested by the Lenders,
G. a certificate from the chief financial officer of Nationwide
certifying that Nationwide (i) is not legally prohibited or
60
-59-
restricted from entering into and performing its obligations
under the Credit Documents to which it is a party, (ii) is not
insolvent, (iii) will not be rendered insolvent by virtue of
guaranteeing the obligations of the Borrowers under the Credit
Documents, (iv) will not be left with an unreasonably small
amount of capital, and (v) has not incurred Debt which cannot
be satisfied on a timely basis,
H. a confirmation in favour of the Administrative Agent executed
by the Borrowers and the Restricted Subsidiaries, confirming
the Security Documents are in full force and effect; and
I. such other certificates and documentation as the
Administrative Agent may reasonably request,
(d) all fees and other amounts then payable under the Credit Documents have
been paid in full;
(e) all obligations under the Credit Documents are secured by first
priority Liens on all property and assets of each Borrower and each Restricted
Subsidiary with such exceptions as are permitted pursuant to this Agreement or
any of the other Credit Documents;
(f) nothing has occurred (nor has any Lender become aware of any facts not
previously known), including any change or condition, event or development,
which the Lenders determine is reasonably likely to have a Material Adverse
Effect;
(g) there has not occurred, developed or come into effect or existence any
event, action, state, condition or major financial occurrence of national or
international consequence or any law, rule, regulation, judgment, order, inquiry
or other occurrence of any nature whatsoever which materially adversely affects,
or may materially adversely or seriously affect, the financial, banking
(including syndication markets) or capital markets in Canada or the United
States of America; and
(h) all conditions precedent listed in Section 4.01 of the Bracknell
Limited Partnership Facility shall have been satisfied.
SECTION 6.02. CONDITIONS PRECEDENT TO ACCOMMODATIONS AND CONVERSIONS.
(1) The obligation of each Lender to make Accommodations or otherwise
give effect to any Accommodation Notice is subject to fulfillment of the
following conditions at the time of any Accommodation Notice or Accommodation,
as the case may be:
61
-60-
(a) the representations and warranties of the Borrowers contained in
Section 7.01 are true and correct on the date of the Accommodation or
Accommodation Notice as if they were made on that date;
(b) no Default or Event of Default has occurred or is continuing or would
arise immediately after giving effect to or as a result of the Accommodation or
Accommodation Notice;
(c) the Accommodation will not violate any applicable law, rule,
regulation, judgment or order; and
(2) Each of the giving of any Accommodation Notice by a Borrower and
the acceptance by a Borrower of any Accommodation shall be deemed to constitute
a representation and warranty by the Borrowers that, on the date of such
Accommodation Notice or Accommodation, as the case may be, and after giving
effect thereto and to the application of any proceeds therefrom, the statements
set forth in Section 6.02(1) are true and correct.
SECTION 6.03. NO WAIVER.
The making of an Accommodation or otherwise giving effect to any
Accommodation Notice, without the fulfillment of one or more conditions set
forth in Section 6.01 or 6.02 shall not constitute a waiver of any condition and
the Administrative Agent and the Lenders reserve the right to require
fulfillment of such condition in connection with any subsequent Accommodation
Notice or Accommodation.
----------------------------------
62
-61-
ARTICLE 7
REPRESENTATIONS AND WARRANTIES
SECTION 7.01. REPRESENTATIONS AND WARRANTIES.
Each Borrower represents and warrants to each Lender, acknowledging and
confirming that each Lender is relying on such representations and warranties
without independent inquiry in entering into this Agreement and providing
Accommodations that:
(a) INCORPORATION AND QUALIFICATION. Each Borrower is a corporation duly
incorporated, organized and validly existing under the laws of its jurisdiction
of incorporation as set forth in Schedule 7.01(p). At the date of this
Agreement, each of the Restricted Subsidiaries is a corporation duly
incorporated, organized and validly existing under the laws of its jurisdiction
of incorporation as set forth in Schedule 7.01(p). Each Borrower and each
Restricted Subsidiary is duly qualified, licensed or registered to carry on
business under the laws applicable to it in all jurisdictions in which failure
to be so qualified, licenced or registered would have a Material Adverse Effect.
(b) CORPORATE POWER. Each of the Borrowers and the Restricted Subsidiaries
has all requisite corporate power and authority to (i) own, lease and operate
its properties and assets and to carry on its business as now being conducted by
it, and (ii) enter into and perform its obligations under the Credit Documents
to which it is a party.
(c) CONFLICT WITH OTHER INSTRUMENTS. The execution and delivery by each
Borrower and each Restricted Subsidiary and the performance by each of them of
its respective obligations under, and compliance with the terms, conditions and
provisions of, the Credit Documents to which it is a party will not (i) conflict
with or result in a breach of any of the terms, conditions or provisions of (t)
its constating documents or by-laws, (u) any applicable law, rule or regulation,
(v) any contractual restriction binding on or affecting it or its properties, or
(w) any judgment, injunction, determination or award which is binding on it, or
(ii) result in, require or permit (x) the imposition of any Lien in, on or with
respect to any of its assets or property, (y) the acceleration of the maturity
of any debt binding on or affecting any Borrower or Restricted Subsidiary, or
(z) any third party to terminate or acquire rights under any Material Agreement.
(d) CORPORATE ACTION, GOVERNMENTAL APPROVALS, ETC. The execution and
delivery of each of the Credit Documents by each Borrower and each Restricted
Subsidiary and the performance by the Borrowers and the Restricted Subsidiaries
of their respective obligations under the Credit Documents have been duly
63
-62-
authorized by all necessary corporate action including, without limitation, the
obtaining of all necessary shareholder consents. No authorization, consent,
approval, registration, qualification, designation, declaration or filing with
any Governmental Entity or other Person, is or was necessary in connection with
the execution, delivery and performance of obligations under the Credit
Documents except as are in full force and effect, unamended, at the date of this
Agreement.
(e) EXECUTION AND BINDING OBLIGATION. This Agreement and the other Credit
Documents have been duly executed and delivered by each Borrower and each
Restricted Subsidiary which is a party thereto and constitute legal, valid and
binding obligations of each such Borrower and Restricted Subsidiary enforceable
against them in accordance with their respective terms, subject only to any
limitation under applicable laws relating to (i) bankruptcy, insolvency,
reorganization, moratorium or creditors' rights generally, and (ii) the
discretion that a court may exercise in the granting of equitable remedies.
(f) LOCATION OF BUSINESS. At the date of this Agreement, the only
jurisdictions (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).
(g) AUTHORIZATIONS, ETC. Each of the Borrowers and each of the Restricted
Subsidiaries possess all authorizations, permits, consents, registrations and
approvals necessary to properly conduct their respective businesses at full
operating capacity. All authorizations, permits, consents, registrations and
approvals which are material to a Borrower or any Restricted Subsidiary at the
date of this Agreement are set forth in Schedule 7.01(g).
(h) TRADEMARKS, PATENTS, ETC. Each of the Borrowers and each of the
Restricted Subsidiaries possesses all the trademarks, trade names, copyrights,
patents and licences reasonably necessary for the conduct of their respective
businesses. To the best knowledge of the Borrowers, no Borrower nor any of the
Restricted Subsidiaries is infringing or is alleged to be infringing on the
rights of any Person with respect to any patent, trademark, trade name,
copyright (or any application or registration in respect thereof) licence,
discovery, improvement, process, formula, know-how, data, plan or specification.
(i) OWNERSHIP OF PROPERTY. Except for Permitted Liens, each of the
Borrowers and the Restricted Subsidiaries has good and marketable title in fee
simple to the Owned Properties and good, indefeasible and merchantable title to
all of its or their other properties and assets including, without limitation,
the tangible and intangible personal property reflected as assets in their books
and records. None of the Borrowers or any of the Restricted Subsidiaries (i)
owns any real property other than the Owned Properties, (ii) is bound by any
agreement to own or lease any real property except for the Leases, or, (iii) has
leased any of its Owned
64
-63-
Properties except pursuant to a Material Agreement. Each Borrower and each
Restricted Subsidiary owns, leases or has the lawful right to use all of the
assets necessary for the conduct of their respective businesses at full
operating capacity.
(j) LEASED PROPERTIES. Each Lease is in good standing and all amounts owing
under it have been paid by a Borrower or Restricted Subsidiary, as applicable.
(k) WORK ORDERS. There are no outstanding work orders relating to the
Subject Properties from or required by any Governmental Entity, nor do the
Borrowers have notice of any possible impending or future work order.
(l) EXPROPRIATION. No part of any of the Subject Properties or the
Buildings and Fixtures located on the Subject Properties has been taken or
expropriated by any Governmental Entity, no written notice or proceeding in
respect of an expropriation been given or commenced nor are any of the Borrowers
aware of any intent or proposal to give any such notice or commence any
proceedings.
(m) ENCROACHMENTS. Except for Permitted Liens or as specified in Schedule
7.01(m), the Buildings and Fixtures located at each of the Subject Properties
are located entirely within such Subject Property and are in conformity with
set-back and coverage requirements of all applicable Governmental Entities
except where failure to be so located or in conformity could not reasonably be
expected to have a Material Adverse Effect. There are no encroachments upon any
of the Subject Properties which could reasonably be expected to have a Material
Adverse Effect.
(n) COMPLIANCE WITH LAWS. Except as set forth in Schedule 7.01(n), each of
the Subject Properties has been used, and each of the Borrowers and each of the
Restricted Subsidiaries is, in compliance in all material respects with all
applicable laws, rules, regulations, by-laws, judgments, orders, decisions and
awards including Environmental Laws.
(o) NO DEFAULT. None of the Borrowers nor any of the Restricted
Subsidiaries is in violation of its constating documents, its by-laws or any
shareholders' agreement applicable to it.
(p) SUBSIDIARIES, ETC. At the date of this Agreement (i) there are no
subsidiaries of Bracknell other than the subsidiaries identified as such in
Schedule 7.01(p), (ii) the share ownership of each of the Subsidiaries is as
described in Schedule 7.01(p), and (iii) the Borrowers and the Restricted
Subsidiaries are not, directly or indirectly, a member of, or participant in,
any partnership, joint venture or syndicate except as described in Schedule
7.01(p). None of the Borrowers or any of the Restricted Subsidiaries is an
unlimited liability company. Each of 1341996 Ontario Inc. and 1357248 Ontario
Inc. is a wholly-owned subsidiary of Bracknell,
65
-64-
carries on no business and has no assets or liabilities other than, in the case
of 1341996 Ontario Inc., assets held in trust for ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and his
estate pursuant to a trust agreement dated March 8, 1999 between Bracknell and
1341996 Ontario Inc.
(q) NO BURDENSOME AGREEMENTS. Except as set forth in Schedule 7.01(q), none
of the Borrowers nor any of the Restricted Subsidiaries is a party to any
agreement or instrument or subject to any restriction (including any restriction
set forth in its constating documents, by-laws or any shareholders' agreement
applicable to it) which could reasonably be expected to have a Material Adverse
Effect.
(r) NO LITIGATION. Except as set forth in Schedule 7.01(r), there are no
material actions, suits, arbitrations or proceedings pending, taken or, to the
Borrowers' knowledge, threatened, before or by any Governmental Entity or other
Person affecting a Borrower or any Restricted Subsidiary. No law, rule,
regulation, by-law, decision, order or judgment which may affect a Borrower or
any of the Restricted Subsidiaries has been enacted, promulgated or applied
which challenges, or to the best knowledge of the Borrowers, has been proposed
which, in the reasonable opinion of the Majority Lenders, may challenge, the
validity or propriety of any Credit Document or the transactions contemplated
thereunder.
(s) ENVIRONMENTAL COMPLIANCE. Except as set out in Schedule 7.01(s), none
of the Subject Properties or other property or assets under the charge,
management or control of a Borrower or any of the Restricted Subsidiaries (i)
has ever been used by it, or to the best of the knowledge of the Borrowers, by
any other Person, as a waste disposal site or a landfill, or (ii) to the best of
the knowledge of the Borrowers, has any asbestos-containing materials, PCBs,
radioactive substances or underground storage systems, active or abandoned
located on, at or under it at the date of this Agreement. Except as set out in
Schedule 7.01(s), there are no contaminants located on, at or under any of the
Subject Properties which are of a nature or in such quantities that the
Borrower, a Restricted Subsidiary or any of the Subject Properties could be
subject to a remedial order or clean-up order issued by a Governmental Entity at
the date of this Agreement. To the knowledge of the Borrowers, no properties
adjacent to any of the Subject Properties are contaminated where such
contamination could, if it migrated to a Subject Property, have a Material
Adverse Effect. Except as set out in Schedule 7.01(s), neither the Borrowers nor
any of the Restricted Subsidiaries sends any hazardous substances for recycling,
disposal, treatment or other processing outside of Canada or the United States
at the date of this Agreement.
(t) PENSION PLANS. Except as notified to the Administrative Agent, Schedule
7.01(t) contains a list of all pension plans and Plans of the Borrowers and the
Restricted Subsidiaries. All contributions required under applicable law have
been made and each pension plan is fully funded on an ongoing and termination
66
-65-
basis. The Borrowers, the Subsidiaries of any of the Borrowers and their ERISA
Affiliates have fulfilled their respective obligations under the minimum funding
standards of Section 302 of ERISA and Section 412 of the Code with respect to
each Plan. None of the Borrowers nor any of the Subsidiaries of any of the
Borrowers nor any ERISA Affiliate has incurred any Withdrawal Liability. No
Multiemployer Plan is in reorganization or has been terminated within the
meaning of Title IV of ERISA. Each employee benefit plan of any Borrower or any
of their respective Subsidiaries intending to qualify under Section 401(a) of
the Code, has received a letter from the Internal Revenue Service stating that
such plan qualifies and no event has occurred which could reasonably result in
revocation of any such letter.
(u) MATERIAL AGREEMENTS, ETC. As of the date of this Agreement, none of the
Borrowers nor any of the Restricted Subsidiaries is a party or otherwise subject
to or bound or affected by any Material Agreement, except as set out in Schedule
7.01(u). Except as set forth in Schedule 7.01(u), all such Material Agreements
are in full force and effect and none of the Borrowers or any of the Restricted
Subsidiaries, or to the best of the Borrowers' knowledge, any other party to any
Material Agreement has defaulted under any of the Material Agreements. To the
best of the Borrowers' knowledge, no event has occurred which, with the giving
of notice, lapse of time or both, would constitute a default under, or in
respect of, any Material Agreement. There is no dispute regarding any Material
Agreement which is not reasonably expected to be resolved in the ordinary course
of business and in accordance with normal commercial practice.
(v) LABOUR MATTERS. Schedule 7.01(v) sets forth all labour contracts to
which the Borrowers or any Restricted Subsidiary is a party as of the date of
this Agreement. There are no existing or, to the best of the Borrowers'
knowledge, threatened strikes, lock-outs or other disputes (other than
non-material grievances) relating to any collective bargaining agreement to
which a Borrower or any Restricted Subsidiary is a party.
(w) BOOKS AND RECORDS. All books and records of the Borrowers and the
Restricted Subsidiaries have been fully, properly and accurately kept and
completed in accordance with GAAP and there are no material inaccuracies or
discrepancies of any kind contained or reflected therein. The Borrowers' and the
Restricted Subsidiaries' records, systems, controls, data or information are not
recorded, stored, maintained, operated or otherwise wholly or partly dependent
upon or held by any means (including any electronic, mechanical or photographic
process, whether computerized or not) which (including all means of access
thereto and therefrom) are not under the direct control of the Borrowers. The
Borrowers and each of the Restricted Subsidiaries have (i) maintained all their
environmental and operating records in the manner and for the periods required
by applicable Environmental Law, and (ii) filed all reports which are required
by applicable Environmental Law to be filed on the happening of any reportable
event.
67
-66-
(x) TAX LIABILITY. The Borrowers and each of the Restricted Subsidiaries
have filed all tax and information returns which are required to be filed and
the information contained in such returns is correct and complete and reflects
accurately all liability for taxes for the period covered. The Borrowers and
each of the Restricted Subsidiaries have paid all taxes, interest and penalties,
if any, which have become due pursuant to such returns or pursuant to any
assessment received by any of them other than those in respect of which
liability based on such returns is being contested in good faith and by
appropriate proceedings where adequate reserves have been established in
accordance with GAAP. Adequate provision for payment has been made for taxes not
yet due. There are no tax disputes existing or pending involving a Borrower, any
of the Restricted Subsidiaries or the Business which could reasonably be
expected to have a Material Adverse Effect.
(y) CORPORATE STRUCTURE. At the date of this Agreement, the only
shareholders of Bracknell holding greater than 5% of the issued and outstanding
shares of Bracknell are as set forth in Schedule 7.01(y). Schedule 7.01(y) sets
forth the complete particulars at the date of this Agreement of (i) such
shareholders, (ii) the interest of each such shareholder and their respective
interests. Except as set forth in Schedule 7.01(y), at the date of this
Agreement none of the shareholders is a party to any unanimous shareholders or
other agreement relating to the shares owned by such shareholder.
(z) FINANCIAL STATEMENTS. The October 31, 1998 audited consolidated and the
July 31, 1999 unaudited consolidated financial statements of Bracknell and the
March 31, 1999 audited consolidated financial statements and the June 30, 1999
unaudited consolidated financial statements of Nationwide, copies of each of
which have been furnished to the Administrative Agent and the Lenders, fairly
present the consolidated financial position of the Borrowers and the Restricted
Subsidiaries at such dates and the consolidated results of the operations and
changes in financial position of the Borrowers and the Restricted Subsidiaries
for such period, all in accordance with GAAP. Between July 31, 1999 and the
Closing Date, there has been no adverse change in the financial position or
results of operations of the Borrowers and the Restricted Subsidiaries.
(aa) MARGIN STOCK. None of the Borrowers nor any of the Restricted
Subsidiaries is engaged in the business of extending credit for the purpose of
purchasing or acquiring any "margin stock" within the meaning of Regulation U
(12 CFR Part 221), of the Board of Governors of the Federal Reserve System
("MARGIN STOCK") and no proceeds of any Accommodation will be used to purchase
or carry any Margin Stock.
(bb) INVESTMENT COMPANY ACT. None of the Borrowers nor any of the Restricted
Subsidiaries is an "investment company" within the meaning of the Investment
Company Act of 1940, as amended, or a "holding company", or a "subsidiary
company" of a "holding company", or an "affiliate" of a "holding
68
-67-
company", or of a "subsidiary company" of a "holding company" within the meaning
of the Public Utility Holding Company Act of 1935, as amended.
(cc) DISCLOSURE. All (i) forecasts and projections supplied to the
Administrative Agent and the Lenders were prepared in good faith, adequately
disclosed all relevant assumptions and are reasonable, and (ii) other written
information supplied to the Administrative Agent and the Lenders is true and
accurate in all material respects. There is no fact known to the Borrowers which
could reasonably be expected to have a Material Adverse Effect and which has not
been fully disclosed to the Administrative Agent and the Lenders. No event has
occurred which could be reasonably anticipated to have a Material Adverse Effect
since the date of this Agreement.
SECTION 7.02. SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
The representations and warranties in this Agreement and in any
certificates or documents delivered to the Administrative Agent and the Lenders
shall not merge in or be prejudiced by and shall survive any Accommodation and
shall continue in full force and effect so long as any amounts are owing by the
Borrowers to the Lenders under this Agreement.
----------------------------------
69
-68-
ARTICLE 8
COVENANTS OF THE BORROWER
SECTION 8.01. AFFIRMATIVE COVENANTS.
So long as (i) any amount owing under this Agreement remains unpaid or
any Lender has any obligation under this Agreement; and (ii) any amount owing
under the Bracknell Limited Partnership Facility remains unpaid or any Lender
(as defined in the Bracknell Limited Partnership Facility) has any obligation
thereunder and unless consent is given in accordance with Section 11.01, each of
the Borrowers shall:
(a) FINANCIAL REPORTING. Deliver to the Administrative Agent (with
sufficient copies for each of the Lenders):
(i) as soon as practicable and in any event within 60 days after
the end of each of the first three Financial Quarters in each
Financial Year (y) a consolidated balance sheet of each of the
Borrowers as of the end of the Financial Quarter, and (z) the
related consolidated statements of earnings and changes in
financial position for the Financial Quarter and for the
period commencing at the end of the previous Financial Year
and ending with the end of the Financial Quarter; in each case
prepared in accordance with GAAP and (except for the statement
of changes in financial position) setting forth in comparative
form the figures for the corresponding Financial Quarter and
corresponding portion of the previous Financial Year;
(ii) as soon as practicable and in any event within 120 days after
the end of each Financial Year, a copy of the audited
consolidated financial statements of each of the Borrowers for
the Financial Year prepared in accordance with GAAP and
reported on by Bracknell's independent auditors;
(iii) together with each such delivery of financial statements, a
Compliance Certificate;
(iv) as soon as practicable and, in any event prior to the earlier
of (A) the date which is 10 days after approval of the Annual
Business Plan by the board of directors of Bracknell, and (B)
(y) 60 days after the end of the Financial Year ended October
31, 1999, or (z) 30 days after the end of each other Financial
Year, the
70
-69-
Annual Business Plan together with a detailed budget for the
following Financial Year providing supplementary detailed
schedules and information supplementary to and consistent with
such Annual Business Plan; and
(v) as soon as practicable and in any event within 45 days after
the end of each Financial Quarter or otherwise promptly at the
request of the Administrative Agent, a certificate of the
chief financial officer of Bracknell setting out, as of the
end of such Financial Quarter or otherwise as of the date of
the certificate, the Borrowers' ▇▇▇▇-to-Market Exposure under
all Hedging Agreements and all material terms of all Hedging
Agreements (including, without limitation, the parties, their
effective dates, notional amounts, currency, applicable rates,
amortization and maturity date) and such other information as
may be reasonably requested by the Administrative Agent to
verify the Borrowers' ▇▇▇▇-to-Market Exposure under the
Hedging Agreements.
(b) ENVIRONMENTAL REPORTING. Promptly, and in any event within 10
days, deliver to the Administrative Agent (with sufficient copies for each of
the Lenders) a detailed statement describing any of the following occurrences:
(i) any order or judgment of any Governmental Entity requiring a
Borrower or any of the Restricted Subsidiaries to incur
Environmental Liabilities (w) in excess of $500,000 in any one
instance, (x) together with all other expenditures incurred in
respect of Environmental Liabilities in any Financial Year, in
excess of $500,000 in the aggregate,
(ii) any state of affairs on any of the Subject Properties or with
respect to the Business which could reasonably be expected to
result in the incurrence of Environmental Liabilities (y) in
excess of $500,000 in any one instance, or (z) together with
all other expenditures incurred in respect of Environmental
Liabilities in any Financial Year, in excess of $500,000 in
the aggregate, and
(iii) the action taken or proposed to be taken in connection with
such occurrences.
(c) ADDITIONAL REPORTING REQUIREMENTS. Deliver to the Administrative Agent
(with sufficient copies for each of the Lenders):
(i) as soon as practicable, and in any event within one Business
Day after the occurrence of each Default or Event of Default,
a statement of the chief financial officer of Bracknell or any
other
71
-70-
officer acceptable to the Administrative Agent setting forth
the details of the Default or Event of Default and the action
which the Borrowers propose to take or have taken,
(ii) promptly in writing a notice of any previously undisclosed (u)
material actions, suits, arbitrations or proceedings pending,
taken or threatened before or by any Governmental Entity or
other Person affecting a Borrower or any Restricted
Subsidiary, (v) locations where contaminants generated by a
Borrower or any Restricted Subsidiary are disposed of, treated
or otherwise dealt with, (w) a material lease or an
acquisition of real property by a Borrower or any Restricted
Subsidiary, (x) material authorizations, permits or licences
which become necessary, (y) Material Agreements, and (z)
labour contracts or collective agreements of a Borrower or any
Restricted Subsidiary,
(iii) promptly in writing a notice of any default, or event,
condition or occurrence which with notice or lapse of time, or
both, would constitute a default under any agreement in
respect of Debt to which a Borrower or any of its Restricted
Subsidiaries is a party and under which a Borrower or any such
Subsidiary owes (contingently or otherwise) at least
$2,000,000 (or the equivalent amount in any other currency),
(iv) promptly in writing a notice of any waiver of any material
provision of, or, material amendment to, any Material
Agreement or any revocation or termination of, any Material
Agreement other than as a result of the completion of the
Material Agreement in accordance with its terms,
(v) promptly in writing a notice of any intended change of
auditors or the Financial Year and the reasons therefor,
(vi) promptly in writing a notice of any intended change of bonding
companies and the reasons therefor,
(vii) from time to time upon the reasonable request of the
Administrative Agent, evidence of the maintenance of all
insurance required to be maintained pursuant to this
Agreement, including originals or copies as the Administrative
Agent may reasonably request of policies, certificates of
insurance, riders, endorsements and proof of premium payments,
(viii) within 3 Business Days of a request therefor from the
Administrative Agent if the Administrative Agent has a good
72
-71-
faith concern that accounts payable to Subcontractors exceeds
5% of the Annualized Total Cost of Goods Sold, the certificate
described in Section 8.01(t) and otherwise comply with the
provisions thereof in respect of Priority Accounts Payable,
(ix) promptly upon their issuance, copies of all notices, reports,
press releases, circulars, offering documents and other
documents filed with, or delivered to, any stock exchange or
the Ontario Securities Commission or a similar Governmental
Entity in any other jurisdiction, and
(x) such other information respecting the condition or operations,
financial or otherwise, of the Business or a Borrower or any
Restricted Subsidiary as the Administrative Agent, on behalf
of the Lenders, may from time to time reasonably request.
(d) CORPORATE EXISTENCE. Except as otherwise permitted in this Agreement,
preserve and maintain, and cause each of the Restricted Subsidiaries to preserve
and maintain, its corporate existence.
(e) COMPLIANCE WITH LAWS, ETC. Comply, and cause each of the Restricted
Subsidiaries to comply with the requirements of all applicable laws, rules,
regulation, by-laws, judgments, orders, decisions and awards, non-compliance
with which could reasonably be expected to have a Material Adverse Effect.
(f) STATUS OF ACCOUNTS AND COLLATERAL. With respect to the Collateral:
(i) maintain all books and records pertaining to the Collateral in
accordance with good business practice,
(ii) immediately notify the Administrative Agent if any account in
excess of $1,000,000 arises out of contracts with any
Governmental Entity, and execute any instruments and take any
steps required by the Majority Lenders in order that all
moneys due or to become due under the contract are assigned to
the Lenders and notice of such assignment to be given to the
Governmental Entity,
(iii) report immediately to the Administrative Agent any matters
materially adversely affecting the value, enforceability or
collectibility of any of the Collateral, and
(iv) if any amount payable under or in connection with any account
in excess of $500,000 is evidenced by a promissory note or
other instrument, immediately pledge, endorse, assign and
deliver to
73
-72-
the Lenders the promissory note or instrument, as additional
Collateral.
(g) CREDIT POLICY AND ACCOUNTS RECEIVABLE. Maintain, at all times, credit
policies consistent with good business practices, adhere to such policies and
collect, and cause each of the Restricted Subsidiaries to collect, accounts
receivable in the ordinary course of business.
(h) CONDUCT OF BUSINESS AND HEDGING POLICY. Conduct, and cause each of the
Restricted Subsidiaries to conduct, in each Financial Year, the Business in
accordance with good business practice; and maintain, and cause each of the
Restricted Subsidiaries to maintain, a hedging policy of not speculating in
commodities.
(i) ENVIRONMENTAL INVESTIGATIONS. Promptly, if the Administrative Agent has
a good faith concern that a discharge of a contaminant has occurred or a
condition exists on any of the Subject Properties or with respect to the
Business or any of the Assets that could have a Material Adverse Effect, cause
to be conducted such environmental investigations (including without limitation,
environmental site assessments and environmental compliance reviews as are
reasonably required by the Administrative Agent) by an environmental consultant
approved by the Administrative Agent, such approval not to be unreasonably
withheld, and remedy any condition or non-compliance with Environmental Laws
revealed by any such investigation.
(j) MAINTENANCE OF PROPERTIES, ETC. Maintain and preserve, and cause each
of the Restricted Subsidiaries to maintain and preserve, all of its and their
properties used or useful in its and their business in good repair, working
order and condition (reasonable wear and tear excepted) where failure to
maintain or preserve the properties in that state could reasonably be expected
to have a Material Adverse Effect. From time to time, make all needful and
proper repairs, renewals, replacements, additions and improvements to the
Subject Properties, so that the Business or business, as the case may be, may be
properly and advantageously conducted at all times in accordance with prudent
business management.
(k) AUDITORS. Appoint and maintain as its auditors a firm of national
standing.
(l) PAYMENT OF TAXES AND CLAIMS. Pay and discharge and cause each of the
Restricted Subsidiaries to pay and discharge, when due, (i) all taxes,
assessments and governmental charges or levies imposed upon it or upon its
income, sales, capital or profit or any other property belonging to it or upon
the Subsidiaries, and (ii) all claims which, if unpaid, might by law become a
Lien upon its assets except any such tax, assessment, charge, levy or claim
which is being contested in good faith and by proper proceedings and in respect
of which the
74
-73-
Borrowers or the Restricted Subsidiaries have established adequate reserves in
accordance with GAAP or which are Permitted Liens.
(m) KEEPING OF BOOKS. Keep, and cause each of the Restricted Subsidiaries
to keep, proper books of record and account, in which full and correct entries
shall be made of all financial transactions and the assets and business in
accordance with GAAP.
(n) VISITATION AND INSPECTION. At any reasonable time or times, permit each
Lender and the Administrative Agent to visit the properties of the Borrowers and
the Restricted Subsidiaries, and to discuss their affairs, finances and accounts
with the officer appointed as (or performing the functions of) the chief
financial officer of the Borrower.
(o) MAINTENANCE OF INSURANCE. Maintain, in respect of itself and each of
the Restricted Subsidiaries, insurance (including environmental liability
insurance) at all times with responsible insurance carriers and in such amounts
and covering such risks as are usually carried by companies engaged in similar
businesses and owning similar properties in the same general areas in which the
Borrower or such Subsidiaries, as the case may be, operate, such policies to
show the Administrative Agent and the Lenders as a loss payee and additional
insured under a mortgagee clause in a form approved by the Insurance Bureau of
Canada and the equivalent governing body of the United States of America, as
applicable.
(p) PROCEEDS. Use the proceeds of all Accommodations solely for the
purposes specified in Section 2.03.
(q) YEAR 2000 COMPLIANCE. Ensure and cause each of the Restricted
Subsidiaries to ensure that all computer equipment and embedded systems and all
computer software used by the Borrowers and the Restricted Subsidiaries which
are material to the Business are or will be Millennium Compliant by December 31,
1999.
(r) MAINTENANCE OF BONDING CAPACITY. Maintain, in respect of itself and
each of the Restricted Subsidiaries, bonding capacity at all times with
responsible companies and in such amounts and covering such risks as are usually
carried by companies engaged in similar businesses and owning similar properties
in the same general areas in which the Borrower or such Subsidiaries, as the
case may be, operate.
(s) INACTIVE SUBSIDIARIES. Within 180 days after the Closing Date either
(i) wind-up or dissolve the Subsidiaries listed on Schedule 8.01(s), or (ii)
cause the Subsidiaries listed in Schedule 8.01(s) to take all steps necessary to
become Restricted Subsidiaries.
75
-74-
(t) PRIORITY ACCOUNTS PAYABLE. If, as at the end of any Financial Quarter,
the accounts payable due and owing to subcontractors ("SUBCONTRACTORS") for the
supply of goods and services exceed 5% of Annualized Total Cost of Goods Sold,
deliver a certificate of the Chief Financial Officer of Bracknell identifying
(in such detail as the Administrative Agent shall reasonably request) the
Priority Accounts Payable and setting out the amount thereof. In such event, the
amount of Priority Accounts Payable shall be added to Total Net Debt for the
purposes of calculating the Applicable Margin and the Applicable Commitment Fee
and determining compliance with Section 8.03(b).
(u) CURE DEFECTS. Promptly cure or cause to be cured any defects in the
execution and delivery of any of the Credit Documents or any defects in the
validity or enforceability of any of the Security and at its expense, execute
and deliver or cause to be executed and delivered, all such agreements,
instruments and other documents as the Administrative Agent may consider
necessary or desirable for the foregoing purposes.
(v) FURTHER ASSURANCES. At its cost and expense, upon request of the
Administrative Agent, execute and deliver or cause to be executed and delivered
to the Administrative Agent such further instruments and do and cause to be done
such further acts as may be necessary or proper in the reasonable opinion of the
Administrative Agent to carry out more effectively the provisions and purposes
of the Credit Documents.
SECTION 8.02. NEGATIVE COVENANTS.
So long as (i) any amount owing under the Credit Agreement remains
unpaid or any Lender or the Administrative Agent has any obligation under this
Agreement; and (ii) any amount owing under the Bracknell Limited Partnership
Facility remains unpaid or any Lender (as defined in the Bracknell Limited
Partnership Facility) has any obligation thereunder and, unless consent is given
in accordance with Section 11.01, none of the Borrowers shall:
(a) DEBT. Create, incur, assume or suffer to exist or permit any of the
Restricted Subsidiaries to create, incur, assume or suffer to exist any Debt
other than (i) Debt to the Lenders under this Agreement, (ii) Debt incurred in
respect of Purchase Money Mortgages up to an aggregate outstanding amount, at
any time, of U.S. $5,000,000 (or the equivalent amount in any other currency),
(iii) Debt described in Schedule 8.02(a) or any refinancing, replacement or
renewals of such Debt not exceeding in principal amount, rate of amortization
and interest rate, the amount outstanding, rate of amortization and the interest
rate, respectively, on the date of the refinancing, renewal or replacement, and
otherwise on terms and conditions not materially more restrictive than the terms
and conditions of the Debt to be refinanced, renewed or replaced, (iv) Debt
between and among the Borrowers and the Restricted Subsidiaries, (v)
Subordinated Debt provided no Default has
76
-75-
occurred or is continuing or would result from the incurrence thereof and the
Borrowers are in pro forma compliance with the financial covenants in Section
8.03 after giving effect to the incurrence thereof, (vi) letters of credit
issued by Persons which are not Lenders but which are guaranteed by Documentary
Credits issued pursuant to this Agreement, (vii) Debt permitted in writing by
the requisite Lenders as part of their approval of a Permitted Acquisition,
(viii) Debt and Debt Guaranteed under the Senior Bridge Loan; and (ix) Debt
under the Bracknell Limited Partnership Facility.
(b) LIENS. Create, incur, assume or suffer to exist, or permit any of the
Restricted Subsidiaries to create, incur, assume or suffer to exist, any Lien on
any of their respective properties or assets other than (i) Permitted Liens, and
(ii) Liens granted to secure permitted Hedging Agreements.
(c) MERGERS, ETC. Except as specifically permitted by the requisite Lenders
as part of their approval of a Permitted Acquisition and subject to the next
following sentence, enter into, or permit any of the Restricted Subsidiaries to
enter into, any transaction (whether by way of reorganization, consolidation,
amalgamation, winding-up, merger, sale, lease or otherwise) whereby (i) all or
any substantial part of its undertaking or assets would become the property of
any other Person, or (ii) Bracknell ceases to hold, directly or indirectly, 100%
of the shares of its Restricted Subsidiaries, or (iii) an Acquisition of Control
would occur. The Borrowers and any Restricted Subsidiary or any Restricted
Subsidiary and any other Restricted Subsidiary may enter into such transactions
with each other if (v) immediately after giving effect to the transaction, no
event shall have occurred and be continuing which constitutes a Default or Event
of Default, (w) in the case of a transaction involving a Borrower or any
Restricted Subsidiary incorporated under the laws of Canada or one of its
provinces or territories, the continuing corporation is also a corporation
existing under the laws of Canada or one of its provinces or territories, (x) in
the case of any transaction involving only Restricted Subsidiaries incorporated
outside of Canada or one of its provinces or territories, the continuing
corporation shall be a corporation incorporated under the laws of one of the
states of the United States of America, (y) where the predecessor corporation
was either a Borrower or a Restricted Subsidiary, the continuing corporation
assumes the Borrower's or the Restricted Subsidiary's obligations, if any, under
the Credit Documents pursuant to an agreement in form and substance satisfactory
to the Administrative Agent, and (z) the Lenders receive an opinion of counsel
to the Borrower and the Restricted Subsidiary, acceptable to them, that the
transaction complies with this Section 8.02(c).
(d) DISPOSAL OF ASSETS GENERALLY. Sell, exchange, lease, release or abandon
or otherwise dispose of, or permit any of the Restricted Subsidiaries to sell,
exchange, lease, release or abandon or otherwise dispose of, any assets or
properties or interests therein (including, its interest in any Non-Recourse
Subsidiary) to any Person other than (i) property or assets which have no
material economic value in
77
-76-
the Business or are obsolete, (ii) dispositions pursuant to a transaction
permitted by Sections 8.02(c) and (e), (iii) dispositions of assets in the
ordinary course of business provided the sale prices do not exceed $1,000,000 in
aggregate in any Financial Year, (iv) dispositions which have been specifically
approved by the requisite Lenders as part of their approval of a Permitted
Acquisition, and (v) bona fide sales at fair market value provided that:
A. the Net Proceeds of such dispositions are used for Permitted
Acquisitions within a period of three months following the
closing date of such disposition or if the Borrowers fail to
use such Net Proceeds for Permitted Acquisitions, the
Borrowers shall prepay the Credit Facilities in accordance
with Section 2.04(5), and
B. the Borrowers will remain in compliance with all financial
covenants set out in Section 8.03 on a pro forma basis after
taking into account such dispositions.
Nothing in this Section 8.02(d) shall apply to, or be deemed to permit, any of
the transactions otherwise prohibited or restricted in Section 8.02(c).
(e) TRANSACTIONS WITH RELATED PARTIES. Except as otherwise permitted in
Sections 8.02(a), (c), (h) and (i), directly or indirectly, itself or allow any
Restricted Subsidiary, to enter into any contract with, make any financial
accommodation for or otherwise enter into any transaction with a Related Party
except (i) in the ordinary course of and pursuant to the reasonable requirements
of business and at prices and on terms not less favourable to the Borrower or
such Restricted Subsidiary, as the case may be, than could be obtained in a
comparable arm's length transaction with a Person who is not a Related Party, or
(ii) the assignment of contracts by the Borrower or a Restricted Subsidiary to
another Borrower or Restricted Subsidiary.
(f) CHANGE IN BUSINESS. Make any change in the nature of the Business or
permit any of the Restricted Subsidiaries to make any change in the nature of
its business.
(g) SHARE CAPITAL. Issue shares, or any options, warrants or securities
convertible into shares, except (i) to (y) a Borrower, in the case of the
Restricted Subsidiaries, or (z) the Restricted Subsidiaries in the case of other
Restricted Subsidiaries, if, in each case, the shares, options, warrants or
securities have been pledged to the Administrative Agent pursuant to the
Security Documents, (ii) an issue of shares, options or warrants of Bracknell or
securities of Bracknell convertible into shares provided such issuance does not
result in an Acquisition of Control, or (iii) as specifically permitted by the
requisite Lenders as part of their approval of a Permitted Acquisition.
78
-77-
(h) DISTRIBUTIONS. Declare, make or pay or permit any Restricted Subsidiary
to declare, make or pay any Distributions, except (provided that no Default or
Event of Default has occurred and is continuing or could result therefrom) that
State, Nationwide or any Restricted Subsidiaries may (i) make payments on
account of Debt owing to a Borrower or any Restricted Subsidiary, and (ii)
declare and pay dividends to a Borrower or any Restricted Subsidiary.
(i) INVESTMENTS. Make or permit any of the Restricted Subsidiaries to make,
any Investment in any Person, except for (i) foreign currency ▇▇▇▇▇▇, interest
rate swaps or similar interest rate and currency hedging obligations or
agreements permitted pursuant to Section 8.02(1), (ii) inter-company loans and
Investments between a Borrower and a Borrower or a Restricted Subsidiary or
between Restricted Subsidiaries provided that if the lender is a Borrower or a
Restricted Subsidiary located in the United States of America, 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, (iii) 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), (iv) Cash Equivalents, (v)
Investments in Joint Ventures permitted pursuant to Section 8.02(w), (vi)
Investments approved in writing by the Supermajority Lenders, or all the Lenders
as the case may be, as part of their approval of a Permitted Acquisition, and
(vii) such other Investments as the Majority Lenders may approve in writing in
the exercise of their sole discretion.
(j) ACQUISITIONS. Make or permit any of its Restricted Subsidiaries to make
any Acquisition, other than the Sylvan Acquisition, the Highlight Acquisition
and the Sunbelt Acquisition, unless (so long as no Default or Event of Default
has occurred and is continuing or would result therefrom) (i) (x) the
Acquisition has a Total Enterprise Value of less than $10,000,000 individually
or in the aggregate with other Acquisitions in any Financial Year, (y) in the
case of Acquisitions in respect of which the Total Enterprise Value is greater
than or equal to $10,000,000 but less than $20,000,000 individually or in
aggregate with other Acquisitions in any Financial Year, the prior written
consent (which may be withheld in the sole discretion of the Lenders) of the
Supermajority Lenders is obtained, or (z) in the case of Acquisitions in respect
of which the Total Enterprise Value is equal to or greater than $20,000,000
individually or in aggregate with other Acquisitions in any Financial Year, the
prior written consent (which may be withheld in the sole discretion of the
Lenders) of all of the Lenders is obtained, (ii) the Acquisition is consistent
with the most recently delivered Annual Business Plan, (iii) the Acquisition is
or is in the Business, (iv) if the Acquisition is an acquisition of shares of a
Person, Bracknell acquires all the issued and outstanding shares of the Person,
(v) the Acquisition is not a hostile take-over bid, (vi) the Acquisition is in
respect of a business whose assets are located in Canada or the United States of
America and the Administrative Agent on behalf of the Lenders will have
first-ranking security
79
-78-
interest over the assets to be acquired, subject to Permitted Liens, and (vii)
the Borrowers shall have delivered to the Administrative Agent, financial
statements for three consecutive Financial Quarters, following the first
Financial Quarter in which the Sylvan Acquisition, the Highlight Acquisition and
the Sunbelt Acquisition are fully accounted for in accordance with GAAP.
Bracknell shall provide to the Administrative Agent as soon as possible in
connection with any proposed Acquisition:
A. a copy of the proposed acquisition agreement, when available;
B. financial statements (audited, if available) of the business
being acquired for three prior fiscal years (or as many prior
fiscal years as the business has been in existence if it has
been in existence for less than three fiscal years);
C. unconsolidated and consolidated financial forecasts for the
business being acquired up to the end of the first Financial
Quarter following the Relevant Repayment Date;
D. a detailed business plan, analysis or similar report and pro
forma financial statements and statement of sources and uses
of Bracknell on a consolidated basis showing the impact of the
Acquisition on the business and financial prospects of the
Borrowers and the Restricted Subsidiaries for a period up to
the Relevant Repayment Date;
E. a pro forma Compliance Certificate setting out the aggregate
purchase price of all Acquisitions in the relevant Financial
Year and stating that after the Acquisition, the Borrowers
will be in compliance with all covenants, including financial
covenants, referred to herein and that such Acquisition will
not result in the occurrence of a Default or Event of Default;
and
F. such other information as the Administrative Agent may
reasonably request.
(k) LEASE-BACKS. Enter into or permit any of the Restricted Subsidiaries to
enter into any arrangements, directly or indirectly, with any Person, whereby a
Borrower or such Subsidiary, as the case may be, shall sell or transfer any
property, whether now owned or hereafter acquired, used or useful in the
Business, in connection with the rental or lease of the property so sold or
transferred or of other property for substantially the same purpose or purposes
as the property so sold or transferred.
80
-79-
(l) HEDGING. Enter into or allow any of its Restricted Subsidiaries to
enter into any Hedging Agreements other than (i) pari passu Hedging Agreements
with a Lender or an Affiliate thereof, provided that, at all times, the
aggregate Borrowers' ▇▇▇▇-to-Market Exposure of all such Hedging Agreements does
not exceed $15,000,000, and (ii) Hedging Agreements with a Lender or an
Affiliate thereof which are subordinated to the pari passu Hedging Agreements
referred to in paragraph (i). For purposes of paragraph (i) above, a Hedging
Agreement with a Lender or an Affiliate thereof shall be a pari passu Hedging
Agreement if, on the effective date of any such Hedging Agreement, the Borrower
or the hedging provider shall have delivered to the Administrative Agent a
report of the hedging provider setting out the Borrowers' ▇▇▇▇-to-Market
Exposure and the material terms of the Hedging Agreement (including its
effective date, notional amount, currency, applicable rates, amortization and
maturity date), and such other information as may be reasonably requested by the
Administrative Agent in order to enable it to verify the Borrowers'
▇▇▇▇-to-Market Exposure of such Hedging Agreement and allocate to it a share of
the pari passu entitlement.
(m) SUBSIDIARIES. Except as specifically permitted by the requisite Lenders
as part of their approval of a Permitted Acquisition or as otherwise permitted
pursuant to Section 8.02(w), incorporate or acquire any subsidiaries or commence
to carry on the Business, otherwise than through a Borrower or a Restricted
Subsidiary existing as of the date of this Agreement except a subsidiary which
(i) is a wholly-owned subsidiary of Bracknell incorporated under the laws of
Canada or one of its provinces or territories or any state of the United States
of America, and (ii) has executed and delivered to the Administrative Agent an
unconditional and unlimited guarantee of all obligations of the Borrowers under
this Agreement and the other Credit Documents together with Security over all of
its property and assets and accompanied by opinions satisfactory to the
Administrative Agent. Permit any Non-Recourse Subsidiary to have any Debt which
cross-defaults or cross-accelerates to any Debt of a Borrower or any of the
Restricted Subsidiaries or in respect of which a Borrower or a Restricted
Subsidiary is contingently liable. Permit a Borrower or a Restricted Subsidiary
to enter into any agreement which requires it to maintain or preserve the
Non-Recourse Subsidiary's financial position or to cause such Subsidiary to
achieve any specified financial or operating results.
(n) COMPROMISE OF ACCOUNTS. Compromise or adjust or permit any of the
Restricted Subsidiaries to compromise or adjust any of its accounts receivable
(or extend the time for payment thereof) or grant any discounts, allowances or
credits, in each case other than in the normal course of business.
(o) INVOICES. Redate any invoice or sale or provision of service or make
sales or provide services on extended dating beyond that customary in the
Business or the business of the Restricted Subsidiaries.
81
-80-
(p) BUSINESS OUTSIDE CERTAIN JURISDICTIONS. Have or permit any of the
Restricted Subsidiaries to have any place of business or keep or store any
tangible property outside of those jurisdictions (or registration districts
within such jurisdictions) set forth in Schedule 7.01(f) except upon 15 days'
written notice to the Administrative Agent, and (ii) unless the Borrowers have
done or caused to be done all such acts and things and executed and delivered or
caused to be executed and delivered all such deeds, transfers, assignments and
instruments as the Administrative Agent may reasonably require for perfecting a
security interest in such property in favour of the Administrative Agent and the
Lenders.
(q) MATERIAL AGREEMENTS. Allow any amendments to any Material Agreement
which could reasonably be expected to have a Material Adverse Effect.
(r) PAYMENTS IN ORDINARY COURSE OF BUSINESS, ETC. Make, or permit any
Restricted Subsidiary to make, any payments outside the ordinary course of
business, make any prepayments of professional fees or place any funds on trust
with third parties other than in the ordinary course of business.
(s) HAZARDOUS SUBSTANCES, ETC. Except as disclosed in Schedule 7.01(s),
permit any asbestos, asbestos-containing materials, PCBs, radioactive substances
or other contaminants which could be the subject of a clean-up order to be
located on, at or under any of the Subject Properties. Except as disclosed in
Schedule 7.01(s), permit any underground storage vessels to be located or
installed at any of the Subject Properties.
(t) CAPITAL EXPENDITURES. Make or commit to make or permit any of the
Restricted Subsidiaries to make or commit to make, Capital Expenditures
exceeding $5,000,000 in the aggregate in any Financial Year.
(u) PUBLIC ANNOUNCEMENTS. Permit any public announcement or other
disclosure to be made of a Permitted Acquisition without the prior written
consent (which may be withheld in the sole discretion of any Lender) of (i) the
Supermajority Lenders in the case of any Acquisition referred to in subsection
8.02(j)(i)(y), or (ii) all of the Lenders in the case of any Acquisition
referred to in subsection 8.02(j)(i)(z).
(v) OUTSTANDING ACCOUNTS PAYABLE. Permit Nationwide or any Restricted
Subsidiary formed under the laws of the United States of America or any state
thereof to have (i) more than twenty-five percent (25%) of its past due accounts
payable outstanding for more than 75 days, or (ii) any accounts payable
outstanding for more than 120 days, other than, in each case, accounts payable
which are being disputed in good faith by appropriate proceedings and for which
a Borrower or a Restricted Subsidiary has provided adequate reserves in
accordance with GAAP.
82
-81-
(w) NON-RECOURSE JOINT VENTURES. Make or allow any Restricted Subsidiary to
make an Investment in a Joint Venture unless (so long as no Default or Event of
Default has occurred or is continuing or would result therefrom): (i) the Joint
Venture is in the Business and has been incorporated for a specific project;
(ii) the assets of the Joint Venture are located in Canada, the United States of
America, the Bahamas or any other country acceptable to the Majority Lenders;
(iii) the Administrative Agent, on behalf of the Lenders, has a first-ranking
security interest on the shares owned by the Borrower or Restricted Subsidiary
in the Joint Venture and Bracknell has delivered to the Administrative Agent a
satisfactory opinion of counsel with respect to the ownership and pledging of
such shares; (iv) all advances or other loans to the Joint Venture by the
Borrowers or the Restricted Subsidiaries are evidenced by a promissory note
assigned and delivered to the Administrative Agent immediately after such
advance or loan has been made; (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 10% of Consolidated Net Worth; 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, 5% of Consolidated Net
Worth.
(x) SENIOR SUBORDINATED BRIDGE COMMITMENT LETTER. Make or allow any
amendments to the Senior Subordinated Bridge Commitment Letter without the prior
written consent of the Lenders.
SECTION 8.03. FINANCIAL COVENANTS.
So long as (i) any amount owing under this Agreement remains unpaid or
any Lender has any obligation under this Agreement, and (ii) any amount owing
under the Bracknell Limited Partnership Facility remains unpaid or any Lender
(as defined in the Bracknell Limited Partnership Facility) has any obligation
thereunder and unless consent is given in accordance with Section 11.01, the
Borrowers shall:
(a) TOTAL DEBT TO CAPITALIZATION. Ensure, at all times, that Total Debt
does not exceed (i) 75% of Capitalization for the Financial Quarters ended April
30, 2000 and July 31, 2000; (ii) 65% of Capitalization for the Financial
Quarters ended October 31, 2000 and January 31, 2001; and (iii) 50% of
Capitalization for each Financial Quarter thereafter.
(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; and (iv)
3.0:1 thereafter.
83
-82-
(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.
(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 and January 31, 2001; and (iii) 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, July 31, 2001 and October 31, 2001; and (iv) 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 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.
----------------------------------
84
-83-
ARTICLE 9
EVENTS OF DEFAULT
SECTION 9.01. EVENTS OF DEFAULT.
If any of the following events (each an "Event of Default") occurs and
is continuing:
(a) a Borrower fails to pay any amount of the Accommodations Outstanding
when such amount becomes due and payable;
(b) a Borrower fails to pay any interest or Fees when they become due and
payable and such failure remains unremedied for a period of three Business Days;
(c) any representation or warranty or certification made or deemed to be
made by a Borrower or a Restricted Subsidiary or any of their respective
directors or officers in any Credit Document shall prove to have been incorrect
in any material respect when made or deemed to be made;
(d) a Borrower fails to perform, observe or comply with any of the
covenants contained in Sections 8.02 or 8.03;
(e) a Borrower fails to perform, observe or comply with any of the
covenants contained in Sections 8.01 and such failure remains unremedied for 10
days after the earlier of the date on which it first had knowledge of such
default and the date on which written notice of such default is given to
Bracknell by the Administrative Agent;
(f) a Borrower fails to perform, observe or comply with any other term,
covenant or agreement contained in any Credit Document to which it is a party
and such failure remains unremedied for thirty days after the earlier of the
date on which it first had knowledge of such default and the date on which
written notice of such default is given to Bracknell by the Administrative
Agent;
(g) a Restricted Subsidiary fails to perform or observe any term, covenant
or agreement contained in any Credit Document to which it is a party and such
failure remains unremedied for thirty days after the earlier of the date on
which it first had knowledge of such default and the date on which written
notice of such default is given to Bracknell by the Administrative Agent;
(h) a Borrower or any Subsidiary fails to pay any principal of, or premium
or interest on, any of its Debt (excluding Debt under this Agreement) which is
85
-84-
outstanding in an aggregate principal amount exceeding U.S. $10,000,000 or any
amounts under any Hedging Agreement with a notional principal amount exceeding
U.S$10,000,000, (or, in each case, the equivalent amount in any other currency)
when such amount becomes due and payable (whether by scheduled maturity or
payment, required prepayment, acceleration, demand or otherwise) and such
failure continues after the applicable grace period, if any, specified in the
agreement or instrument relating to such Debt or in the Hedging Agreement; or
any other event occurs or condition exists, and continues after the applicable
grace period, if any, specified in any agreement or instrument relating to any
such Debt or in the Hedging Agreement, if the effect of such event is to
accelerate, or permit the acceleration of the Debt or to terminate or permit the
termination of the Hedging Agreement; or any such Debt payable prior to its
stated maturity or Hedging Agreement terminated by the counterparty prior to its
stated maturity date by the holder thereof;
(i) a Borrower or any Restricted Subsidiary fails to perform or observe any
term, covenant or agreement contained in any Material Agreement on its part to
be performed or observed where such failure could reasonably be expected to have
a Material Adverse Effect; or any Material Agreement is terminated or revoked or
permitted to lapse (other than in accordance with its terms or as approved by
the Administrative Agent); or any party to any Material Agreement delivers a
notice of termination or revocation (other than in accordance with its terms or
as approved by the Administrative Agent) in respect of the Material Agreement;
provided in each case that the failure, termination or revocation is not being
contested in good faith by appropriate proceedings;
(j) any judgments or orders for the payment of money in excess of U.S.
$10,000,000 (or the equivalent amount in any other currency) in aggregate are
rendered against a Borrower or any Subsidiary and either (i) enforcement
proceedings have been commenced by a creditor upon any such judgment or order,
or (ii) there is any period of thirty consecutive days during which a stay of
enforcement of any such judgment or order, by reason of a pending appeal or
otherwise, is not in effect;
(k) a Borrower or any Subsidiary incurs any Environmental Liabilities which
will require expenditures, (i) for any one occurrence, in excess of
U.S.$5,000,000, or (ii) aggregating in any Financial Year on a consolidated
basis, U.S.$5,000,000;
(l) any Borrower, any Subsidiary of any Borrower or any ERISA Affiliate
fails to pay when due an amount or amounts aggregating in excess of U.S.
$1,000,000 which it shall have become liable to pay under Section 4062, 4063 or
4064 of ERISA; or a notice of intent to terminate a Plan is filed under Title IV
of ERISA by any Borrower, any Subsidiary of any Borrower or any ERISA Affiliate,
any plan administrator or any combination of the foregoing if such termination
86
-85-
would result in a Material Adverse Effect; or the Pension Benefit Guaranty
Corporation institutes proceedings under Title IV of ERISA to terminate, to
impose liability (other than for premiums under Section 4007 of ERISA) in
respect of, or to cause a trustee to be appointed to administer, any Plan, if
such action by the Pension Benefit Guaranty Corporation would result in a
Material Adverse Effect; or there occurs a complete or partial withdrawal from,
or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to
one or more Multiemployer Plans which could reasonably cause any Borrower, any
Subsidiary of any Borrower or any ERISA Affiliate to incur a current annual
payment obligation in excess of U.S. $1,000,000;
(m) there is an Acquisition of Control except as may be specifically
permitted by the requisite Lenders as part of their approval of a Permitted
Acquisition;
(n) a Borrower or any Restricted Subsidiary (i) becomes insolvent or
generally not able to pay its debts as they become due, (ii) admits in writing
its inability to pay its debts generally or makes a general assignment for the
benefit of creditors, (iii) institutes or has instituted against it any
proceeding seeking (x) to adjudicate it a bankrupt or insolvent, (y)
liquidation, winding-up, reorganization, arrangement, adjustment, protection,
relief or composition of it or its debts under any law relating to bankruptcy,
insolvency, reorganization or relief of debtors including any plan of compromise
or arrangement or other corporate proceeding involving or affecting its
creditors, or (z) the entry of an order for relief or the appointment of a
receiver, trustee or other similar official for it or for any substantial part
of its properties and assets, and in the case of any such proceeding instituted
against it (but not instituted by it), either the proceeding remains undismissed
or unstayed for a period of 30 days, or any of the actions sought in such
proceeding (including the entry of an order for relief against it or the
appointment of a receiver, trustee, custodian or other similar official for it
or for any substantial part of its properties and assets) occurs, or (iv) takes
any corporate action to authorize any of the above actions;
(o) there has occurred or been threatened, in the sole opinion of the
Majority Lenders, an event or development likely to have a Material Adverse
Effect;
(p) the audited consolidated financial statements of the Borrowers are
qualified in any material respect by the Borrowers' independent auditors; or
(q) a Bracknell LP Event of Default has occurred and is continuing,
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, declare the Accommodations Outstanding, all accrued
interest and Fees and all other amounts payable under this Agreement to be
87
-86-
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.
SECTION 9.02. REMEDIES UPON DEFAULT.
(1) Upon a declaration that the Accommodations Outstanding are
immediately due and payable pursuant to Section 9.01, the Administrative Agent
shall at the request of, or may with the consent of, the Majority Lenders,
commence such legal action or proceedings as the Majority Lenders, in their sole
discretion, deem expedient, including, the commencement of enforcement
proceedings under the Credit Documents all without any additional notice,
presentation, demand, protest, notice of dishonour, entering into of possession
of any property or assets, or any other action or notice, except as may be
required by law and which cannot be waived, all of which are expressly waived by
the Borrowers.
(2) The rights and remedies of the Administrative Agent and the
Lenders under the Credit Documents are cumulative and are in addition to, and
not in substitution for, any other rights or remedies. Nothing contained in the
Credit Documents with respect to the indebtedness or liability of the Borrowers
to the Administrative Agent and the Lenders, nor any act or omission of the
Administrative Agent or the Lenders with respect to the Credit Documents or the
Security shall in any way prejudice or affect the rights, remedies and powers of
the Administrative Agent and the Lenders under the Credit Documents and the
Security.
SECTION 9.03. HEDGING AGREEMENTS.
Upon a declaration under Section 9.01, notwithstanding the terms of any
Hedging Agreements, all Hedging Agreements with a Lender shall be terminated and
the cost to the applicable Lender of that termination, if any, shall be
determined as of the date of the declaration. In determining that cost, it shall
be assumed that the Borrowers have defaulted under the Hedging Agreements, and
the cost shall then be determined in accordance with the terms of the agreement
governing the Hedging Agreements or, if there are no such terms, in accordance
with the usual practices of the applicable Lender and by reference to the
provisions regarding payments on early termination in the (Multicurrency-Cross
Border) ISDA Master Agreement (1992 version) as may be amended and agreed by the
parties.
----------------------------------
88
-87-
ARTICLE 10
THE ADMINISTRATIVE AGENT AND THE LENDERS
SECTION 10.01. AUTHORIZATION AND ACTION.
(1) Each Lender irrevocably appoints and authorizes the
Administrative Agent to take such action as Administrative Agent on its behalf
and to exercise such powers under this Agreement as are delegated to it by the
terms of this Agreement, together with the powers reasonably incidental thereto.
As to any matters not expressly provided for by this Agreement, the
Administrative Agent shall act or refrain from acting (and shall be fully
protected in so doing) upon the joint instructions of the Majority Lenders which
instructions shall be binding upon all Lenders. The Administrative Agent shall
not be required to take any action which (i) exposes it to personal liability,
(ii) is contrary to this Agreement or any applicable law, rule, regulation,
judgment or order, (iii) would require it to become registered to do business in
any jurisdiction, or (iv) would subject it to taxation.
(2) The Lenders appoint the Administrative Agent as the holder of
an irrevocable power of attorney (within the meaning of the Civil Code of
Quebec) for the purposes of holding security on the property and assets of the
Borrowers and the Restricted Subsidiaries pursuant to the laws of Quebec for the
due payment and performance of their respective obligations under the Credit
Documents. The Administrative Agent agrees to act in such capacity.
(3) The Administrative Agent has no duties or obligations other
than as set out in this Agreement and there shall not be construed against the
Administrative Agent any implied duties (including fiduciary duties),
obligations or covenants. The Administrative Agent may execute or perform, and
may delegate the execution and performance of, any of its powers, rights,
discretions and duties under the Credit Documents through or to any Persons
designated by it. References in any Credit Document to the Administrative Agent
shall include references to any such Persons.
(4) The Administrative Agent is not obliged to (i) take or refrain
from taking any action or exercise or refrain from exercising any right or
discretion under the Credit Documents, or (ii) incur or subject itself to any
cost in connection with the Credit Documents, unless it is first specifically
indemnified or furnished with security by the Lenders, in form and substance
satisfactory to it (which may include further agreements of indemnity or the
deposit of funds).
(5) The Administrative Agent shall promptly deliver to each Lender
any notices, reports or other communications contemplated in this Agreement
which are intended for the benefit of the Lenders.
89
-88-
SECTION 10.02. NO LIABILITY.
Neither the Administrative Agent nor its directors, officers, agents or
employees shall be liable to any Lender for any action taken or omitted to be
taken by it or them in connection with the Credit Documents except for its or
their own gross negligence or willful misconduct. Without limiting the
generality of the foregoing, the Administrative Agent (i) may treat any Lender
as the payee of amounts attributable to its Commitment unless and until the
Administrative Agent receives an agreement in the form contemplated in Section
11.08(5), (ii) may consult with legal counsel (including legal counsel for the
Borrowers), independent accountants and other experts selected by it and shall
not be liable for any action taken or omitted to be taken by it in accordance
with their advice, (iii) makes no warranty or representation to any Lender and
shall not be responsible to any Lender for the form, substance, accuracy or
completeness of any Credit Document or any other documents or information made
available to the Lenders, (iv) has no duty to inspect the property or assets
(including books and records) of the Borrowers or any other Person, (v) has no
duty to ascertain or inquire as to the existence of a Default or an Event of
Default or the observance of any of the terms or conditions of the Credit
Documents, (vi) is not responsible to any Lender for the execution,
enforceability, genuineness, sufficiency or value of any of the Credit
Documents, and (vii) shall incur no liability by acting upon any notice,
certificate or other instrument believed by it to be genuine and signed or sent
by the proper Person.
SECTION 10.03. ACCOMMODATIONS BY ADMINISTRATIVE AGENT.
The Administrative Agent has the same rights and powers under this
Agreement with respect to its Commitment as any other Lender and may exercise
such rights and powers as though it were not the Administrative Agent. The term
"Lender" or "Lenders" shall, unless otherwise expressly indicated, include the
Administrative Agent in its individual capacity. The Administrative Agent and
its Affiliates may accept deposits from, lend money to, act as trustee under
indentures of, and generally engage in any kind of business with, the Borrowers
and any of their subsidiaries or any Person who may do business with or own
securities of such Persons, all as if it were not the Administrative Agent and
without any duty to account to the Lenders.
SECTION 10.04. REFERENCE RATE DETERMINATIONS.
(1) Each Reference Lender agrees to provide the Administrative
Agent with timely information for purposes of determining interest or discount
rates. If any one or more of them fails to provide the information to the
Administrative Agent, the Administrative Agent shall determine the applicable
interest or discount rate on the basis of timely information provided by the
remaining Reference Lenders.
90
-89-
(2) Upon request, the Administrative Agent shall promptly notify
Bracknell and the Lenders of the interest or discount rate determined by the
Administrative Agent for an Advance or Drawing and the applicable interest and
discount rates, if any, furnished by each Reference Lender for determining the
rate.
SECTION 10.05. HOLDING OF SECURITY; SHARING OF PAYMENTS, ETC.
(1) The Security shall be held by the Administrative Agent for the
benefit of itself and the rateable benefit of the Lenders in accordance with
their respective terms and any proceeds from any realization of the Security
shall be applied to the Accommodations Outstanding to each Lender rateably
(whether such Security is held in the name of the Administrative Agent or in the
name of any one or more of the Lenders and without regard to any priority to
which any Lender may otherwise be entitled under applicable law).
(2) The Security shall also secure obligations of the Borrowers
and the Restricted Subsidiaries under all Hedging Agreements with the Lenders
and their Affiliates (i) in respect of pari passu Hedging Agreements referred to
in Section 8.02(l), rateably in accordance with the agreements entered into by
the Lenders or Affiliates thereof with the Administrative Agent, in its capacity
as administrator of the Hedging Agreements, at the time the Hedging Agreements
are executed, and on a pari passu basis with the Credit Facilities, and (ii) in
respect of all Hedging Agreements which are not pari passu Hedging Agreements as
provided in Section 8.02(l), rateably in accordance with the agreements entered
into by the Lenders or Affiliates thereof with the Administrative Agent, in its
capacity as administrator of the Hedging Agreements, at the time the Hedging
Agreements are executed, but subordinate in right of payment to the repayment in
full of the Credit Facilities and the pari passu Hedging Agreements.
(3) Each Lender agrees with the other Lenders that it will not,
without the prior consent of the other Lenders, take or obtain any Lien on any
properties or assets of a Borrower or any of the Subsidiaries to secure the
obligations of a Borrower under this Agreement or any Restricted Subsidiary
under any Credit Document, except for the benefit of all Lenders or as may
otherwise be required by law.
(4) If any Lender obtains any payment (whether voluntary,
involuntary or through the exercise of any right of set-off or realization of
Security) on account of any Accommodations made by it (other than amounts paid
pursuant to Section 10.07) in excess of its rateable share of payments obtained
by all the relevant Lenders on such Accommodations, the Lender shall account to
and pay over to the other relevant Lenders their rateable share and shall, upon
request, immediately purchase from the other Lenders such participations in such
Accommodations made by the other Lenders as shall be necessary to cause the
purchasing Lender to share the excess payment rateably with the other relevant
91
-90-
Lenders. If all or any portion of the excess payment is recovered from the
purchasing Lender, the purchase price shall be rescinded and each relevant
Lender shall repay to the purchasing Lender the purchase price to the extent of
the recovery together with an amount equal to the Lender's rateable share
(according to the proportion that the amount the Lender's required repayment
bears to the total amount recovered from the purchasing Lender) of any interest
or other amount paid by the purchasing Lender in respect of the total amount
recovered. The Lender purchasing a participation from another Lender pursuant to
this Section 10.05 may, to the fullest extent permitted by law, exercise all its
rights of payment (including any right of set-off) with respect to such
participation as fully as if the Lender were a direct creditor of the Borrowers
in the amount of the participation and the Borrowers expressly acknowledge the
creation of such right.
(5) On request by, and at the expense of, the Borrowers and
provided no Default or Event of Default has occurred and is continuing, the
Administrative Agent and the Lenders shall discharge and release the Security to
the extent required to permit a sale, transfer or other disposition permitted
under this Agreement.
SECTION 10.06. LENDER CREDIT DECISIONS.
Each Lender acknowledges that it has, independently and without
reliance upon the Administrative Agent, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon the Administrative Agent and based
on such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
this Agreement.
SECTION 10.07. INDEMNIFICATION.
Each Lender shall indemnify and save the Administrative Agent harmless
(to the extent not reimbursed by the Borrowers) rateably from any claim or loss
suffered by, imposed upon or asserted against the Administrative Agent as a
result of, or arising out of, the Credit Documents or any action taken or
omitted by the Administrative Agent under the Credit Documents provided that no
Lender shall be liable for any part of such loss resulting from the gross
negligence or willful misconduct of the Administrative Agent in its capacity as
Administrative Agent. Without limiting the foregoing, each Lender shall
reimburse the Administrative Agent upon demand for its rateable share of any
out-of-pocket expenses incurred by the Administrative Agent in connection with
the preparation, execution, administration or enforcement of, or legal advice in
respect of rights or responsibilities under, the Credit Documents (to the extent
not reimbursed by the Borrowers).
92
-91-
SECTION 10.08. LIABILITY OF THE LENDERS INTER SE.
Each of the Lenders agrees with each of the other Lenders that, except
as otherwise expressly provided in this Agreement, none of the Lenders has or
shall have any duty or obligation, or shall in any way be liable to any of the
other Lenders in respect of the Credit Documents or any action taken or omitted
to be taken in connection with them.
SECTION 10.09. SUCCESSOR ADMINISTRATIVE AGENTS.
The Administrative Agent may resign at any time by giving written
notice to the Lenders and Bracknell, such resignation to be effective upon the
appointment of a successor Administrative Agent. Upon notice of any resignation,
the Majority Lenders have the right to appoint a successor Administrative Agent
who (at any time that no Default or Event of Default has occurred and is
continuing) shall be acceptable to Bracknell, acting reasonably. If no successor
Administrative Agent is appointed or has accepted the appointment within thirty
days after the retiring Administrative Agent's notice of resignation, then the
retiring Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent, which is a Lender. Upon the acceptance of any such
appointment by a successor Administrative Agent, the successor shall succeed to
and become vested with all the rights, powers, privileges and duties of the
retiring Administrative Agent and the retiring Administrative Agent shall be
discharged from its duties and obligations under this Agreement. After any
retiring Administrative Agent's resignation, the provisions of this Article 10
shall inure to its benefit as to any actions taken or omitted to be taken by it
while it was Administrative Agent.
----------------------------------
93
-92-
ARTICLE 11
MISCELLANEOUS
SECTION 11.01. AMENDMENT.
(1) Subject to subsections (2) and (3), no amendment or waiver of
any provision of any of the Credit Documents, nor consent to any departure by a
Borrower or any other Person from such provisions, is effective unless in
writing and approved by the Majority Lenders. Any amendment, waiver or consent
is effective only in the specific instance and for the specific purpose for
which it was given.
(2) Only written amendments, waivers or consents signed by all the
Lenders shall (i) increase any Commitment or any Lender's Commitment, (ii)
reduce the principal or amount of, or any payment of, or interest on, any
Accommodation Outstanding or any Fees, (iii) postpone any date fixed for any
payment of principal of, or interest on (including the Applicable Margins), any
Accommodation Outstanding or any Fees, (iv) amend Section 2.03, Sections 8.02(j)
or (u) or Schedule 5 or consent to any waiver of such sections, (v) change (y)
the percentage of the Commitments, or (z) the number or percentage of Lenders,
required for the Lenders, or any of them, or the Administrative Agent to take
any action, (vi) permit any amendment to, or termination of, any of the Security
Documents (except as otherwise permitted in Section 10.05(5)), (vii) change the
definition of Majority Lenders or Supermajority Lenders, or (viii) amend this
Section 11.01(2).
(3) Only written amendments, waivers or consents signed by the
Administrative Agent in addition to the Majority Lenders, shall affect the
rights or duties of the Administrative Agent under the Credit Documents.
SECTION 11.02. WAIVER.
(1) No failure on the part of any Lender or the Administrative
Agent to exercise, and no delay in exercising, any right under any of the Credit
Documents shall operate as a waiver of such right; nor shall any single or
partial exercise of any right under any of the Credit Documents preclude any
other or further exercise of such right or the exercise of any other right.
(2) Except as otherwise expressly provided in this Agreement, the
covenants, representations and warranties shall not merge on and shall survive
the initial Accommodation and, notwithstanding such initial Accommodation or any
investigation made by or on behalf of any party, shall continue in full force
and effect. The closing of this transaction shall not prejudice any right of one
party against any other party in respect of anything done or omitted under this
Agreement or in respect of any right to damages or other remedies.
94
-93-
SECTION 11.03. EVIDENCE OF DEBT AND ACCOMMODATION NOTICES.
(1) The indebtedness of each of the Borrowers resulting from
Accommodations under the Credit Facilities shall be evidenced by the records of
the Lenders (or the Administrative Agent on behalf of the Lenders) which shall
constitute prima facie evidence of such indebtedness. In the event of conflict
between the records of a Lender and the records of the Administrative Agent, the
records of the Lender shall prevail, absent manifest error.
(2) Prior to the receipt of any Accommodation Notice, the
Administrative Agent or any Lender may act upon the basis of a notice by
telephone (containing the same information as required to be contained in the
Accommodation Notice) believed by it in good faith to be from an authorized
person representing the applicable Borrower. In the event of a conflict between
the Administrative Agent's or the Lender's record, as applicable of any
Accommodation and the Accommodation Notice, the Administrative Agent's or the
Lender's record, as applicable shall prevail, absent manifest error.
SECTION 11.04. NOTICES, ETC.
Any notice, direction or other communication to be given under this
Agreement shall, except as otherwise permitted, be in writing and given by
delivering it or sending it by telecopy or other similar form of recorded
communication addressed:
(a) if to any of the Borrowers, c/o Bracknell at:
Suite 1506
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: Chief Financial Officer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
(b) if to the Administrative Agent, to it at:
Global Syndications
Royal Bank Plaza, South Tower
▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: Manager, Agency
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
95
-94-
and, if to the Lenders, at the addresses shown on the signature pages. Any
communication shall be deemed to have been validly and effectively given (i) if
personally delivered, on the date of such delivery if such date is a Business
Day and such delivery was made prior to 4:00 p.m. (Toronto time), (ii) if
transmitted by facsimile or similar means of recorded communication on the
Business Day following the date of transmission. Any party may change its
address for service from time to time by notice given in accordance with the
foregoing and any subsequent notice shall be sent to the party at its changed
address.
SECTION 11.05. CONFIDENTIALITY.
Each Lender agrees to use reasonable efforts to ensure that financial
statements or other information relating to the Borrowers which may be delivered
to it pursuant to this Agreement and which is not publicly filed or otherwise
made available to the public generally (and which is not independently known to
the Lender) will be treated confidentially by the Lender and will not, except
with the consent of Bracknell or as required by law, be distributed or otherwise
made available by the Lender to any Person other than its directors, officers,
employees, authorized agents, counsel or other representatives (provided the
other representatives have agreed or are under a duty to keep all information
confidential) required, in the reasonable opinion of the Lender, to have such
information. Each Lender is authorized to deliver a copy of any financial
statement or any other information which may be delivered to it pursuant to this
Agreement, to (i) any actual or potential Participant or Assignee provided it
has agreed to keep such information confidential on the terms hereof, (ii) any
Governmental Entity having jurisdiction over the Lender in order to comply with
any applicable laws, and (iii) any Affiliate of the Lender required, in the
reasonable opinion of such Lender, to have such information provided it has
agreed to keep such information confidential on the terms hereof.
SECTION 11.06. COSTS, EXPENSES AND INDEMNITY.
(1) The Borrowers shall, whether or not the transactions
contemplated in this Agreement are completed, indemnify and hold each of the
Lenders and the Administrative Agent and each of their respective officers,
directors, employees and agents (each an "Indemnified Person") harmless from,
and shall pay to such Indemnified Person on demand any amounts required to
compensate the Indemnified Person for, any claim or loss suffered by, imposed
on, or asserted against, the Indemnified Person as a result of, connected with
or arising out of (i) a default (whether or not constituting a Default or an
Event of Default) by a Borrower, (ii) any proceedings brought against the
Indemnified Person due to its entering into any of the Credit Documents and
performing its obligations under the Credit Documents except to the extent
caused by the gross negligence or willful misconduct of the Indemnified Person,
and (iii) the presence of contaminants at, on or under, or the discharge or
likely discharge of contaminants from, any of the
96
-95-
properties now or previously used by the Borrowers or any of their Subsidiaries,
or the breach by, or non-compliance with, any Environmental Law by any
mortgagor, owner, or lessee of such properties.
(2) If, with respect to any Lender, (i) any change in law, rule,
regulation, judgment or order of general application, or any change in the
interpretation or application of such law, rule, regulation, judgment or order,
occurring or becoming effective after this date, or (ii) compliance by the
Lender with any direction, request or requirement (whether or not having the
force of law) of any Governmental Entity made or becoming effective after this
date, has the effect of causing any loss to the Lender or reducing the Lender's
rate of return by (w) increasing the cost to the Lender of performing its
obligations under this Agreement or in respect of any Accommodations Outstanding
(including the costs of maintaining any capital, reserve or special deposit
requirements), (x) requiring the Lender to maintain or allocate any capital or
additional capital or affecting its allocation of capital in respect of its
obligations under this Agreement or in respect of any Accommodations
Outstanding, (y) reducing any amount payable to the Lender under this Agreement
or in respect of any Accommodations Outstanding by any material amount, (z)
causing the Lender to make any payment or to forego any return on, or calculated
by reference to, any amount received or receivable by the Lender under this
Agreement or in respect of any Accommodations Outstanding (but other than a loss
or reduction resulting from a higher rate or a change in the calculation of
income or capital tax relating to the Lender's income or capital in general),
then the Lender may give notice to a Borrower specifying the nature of the event
giving rise to the loss and the Borrower may either, (iii) on demand, pay such
amounts as the Lender specifies is necessary to compensate it for any such loss,
or (iv) provided no loss has yet been suffered by the Lender or a Borrower has
paid the compensating amount to the Lender, repay the applicable Accommodations
Outstanding and terminate the Lender's Commitments. A certificate as to the
amount of any such loss submitted in good faith by a Lender to a Borrower shall
be conclusive and binding for all purposes, absent manifest error.
(3) The Borrowers shall pay to the Lenders on demand any amounts
required to compensate the Lenders for any loss suffered or incurred by them as
a result of (i) any payment being made in respect of a BA Instrument,
Documentary Credit or Advance other than on the maturity or expiration or on the
last day of a Libor Interest Period applicable to it, (ii) the failure of a
Borrower to give any notice in the manner and at the times required by this
Agreement, (iii) the failure of a Borrower to effect an Accommodation in the
manner and at the time specified in any Accommodation Notice, or (iv) the
failure of a Borrower to make a payment or a mandatory repayment in the manner
and at the time specified in this Agreement. A certificate as to the amount of
any loss submitted in good faith by a Lender to a Borrower shall be conclusive
and binding for all purposes, absent manifest error.
97
-96-
(4) Whether or not any Accommodation is made under the Credit
Facilities, the Borrowers shall pay to each of the Administrative Agent and each
of the Lenders on demand all costs and expenses incurred by it, its agents,
officers, directors and employees and any receiver or receiver-manager appointed
by it or by a court in connection with the Credit Documents or the Credit
Facilities, including, without limitation (i) the preparation, execution, filing
and registration of any of the Credit Documents, any actual or proposed
amendment or modification thereof or any waiver thereunder and all instruments
supplemental or ancillary thereto, (ii) obtaining advice as to the rights and
responsibilities of the Administrative Agent or any of the Lenders under the
Credit Documents, and (iii) the defence, establishment, protection or
enforcement of any of the rights or remedies of the Administrative Agent or any
of the Lenders under any of the Credit Documents including, without limitation,
all costs and expenses of establishing the validity and enforceability of, or of
collection of amounts owing under, any of the Credit Documents or of any
enforcement of the Security, including, without limitation, in each case, all of
the fees, expenses and disbursements of its counsel, incurred in connection
therewith, and including all sales, value-added or similar taxes payable by it
(whether refundable or not) on all such costs and expenses.
(5) The provisions of this Section 11.06 shall survive the
termination of this Agreement and the repayment of all Accommodations
Outstanding. Each Borrower acknowledges that neither its obligation to indemnify
nor any actual indemnification by it of any Lender, the Administrative Agent or
any other Indemnified Person in respect of such Person's losses for the legal
fees and expenses shall in any way affect the confidentiality or privilege
relating to any information communicated by such Person to its counsel.
SECTION 11.07. TAXES AND OTHER TAXES.
(1) All payments to the relevant Lenders or the Administrative
Agent by Bracknell or State under any of the Credit Documents shall be made free
and clear of and without deduction or withholding for any and all taxes, levies,
imposts, deductions, charges or withholdings and all related liabilities (all
such taxes, levies, imposts, deductions, charges, withholdings and liabilities
being referred to as "TAXES") imposed by Canada or the United States of America
(or any political subdivision or taxing authority thereof or therein and other
than Taxes which are required to be withheld or deducted by (y) Canada in
respect of Taxes otherwise payable to Canada (or any political subdivision or
taxing authority thereof or therein) by the relevant Lender in respect of its
taxable income, or (z) the United States of America in respect of Taxes
otherwise payable to the United States of America (or any political subdivision
of or taxing authority thereof or therein) by the relevant Lender in respect of
its taxable income), unless such Taxes are required by applicable law to be
deducted or withheld. If Bracknell or State shall be required by applicable law
to deduct or withhold any such Taxes from or in respect of any amount payable
under any of the Credit Documents (i) the amount payable
98
-97-
shall be increased (and for greater certainty, in the case of interest, the
amount of interest shall be increased) as may be necessary so that after making
all required deductions or withholdings (including deductions or withholdings
applicable to any additional amounts paid under this Section 11.07(1)), the
relevant Lenders or the Administrative Agent receive an amount (free and clear
of such Taxes) equal to the amount they would have received if no such deduction
or withholding had been made, (ii) Bracknell or State shall make such deductions
or withholdings, and (iii) Bracknell or State shall immediately pay the full
amount deducted or withheld to the relevant Governmental Entity in accordance
with applicable law.
(2) Each Borrower agrees to immediately pay any present or future
stamp or documentary taxes or any other excise or property taxes, charges,
financial institutions duties, debits taxes or similar levies (all such taxes,
charges, duties and levies being referred to as "OTHER TAXES") which arise from
any payment made by such Borrower under any of the Credit Documents or from the
execution, delivery or registration of, or otherwise with respect to, any of the
Credit Documents.
(3) Each Borrower shall indemnify and hold harmless each of the
relevant Lenders and the Administrative Agent from and against the full amount
of Taxes or Other Taxes imposed on or paid by such Lenders or the Administrative
Agent and any liability (including penalties, interest and expenses) arising
from or with respect to such Taxes or Other Taxes, whether or not they were
correctly or legally asserted, to the extent that Bracknell, State or
Nationwide, as the case may be, was required to make any payment in respect of
such Taxes or Other Taxes and failed to do so, provided that the obligation so
to indemnify shall be limited (except as to Other Taxes) to Taxes with respect
to which such Borrower would have been obligated to make an increased payment to
such Lender or the Administrative Agent hereunder. In addition, each Borrower
shall indemnify the relevant Lenders and the Administrative Agent for any Taxes
or Other Taxes imposed by any jurisdiction on or with respect to any increased
amount payable by such Borrower under Section 11.07(1) or (5) or any payment or
indemnity payable by such Borrower under Section 11.07(2) or this Section
11.07(3), but only to the extent, if any, that such Taxes or Other Taxes imposed
on any Lender or the Administrative Agent exceed (after taking into account
available foreign tax credits, deductions, exemptions or other tax allowances in
respect of such payment which may be used by the relevant Lender) the amount of
such Taxes or Other Taxes that would have been imposed on it in the absence of
any increased amount payable by such Borrower under Section 11.07(1) or (5) or
any payment or indemnity payable by such Borrower under Section 11.07(2) or this
Subsection 11.07(3). Payment under this indemnification shall be made, by way of
an increase in interest (provided, and to the extent that, any such payment as
interest would cause the amount or rate of interest to exceed the maximum
allowable under and pursuant to applicable law, or the characterization of the
same as interest shall otherwise be disadvantageous to the Administrative Agent
and/or any Lender under and pursuant to the law of any
99
-98-
applicable jurisdiction, including but not limited to the usury laws thereof,
such payment or such amount thereof as shall exceed the maximum allowable amount
or otherwise be disadvantageous shall be paid not as interest but as payment in
respect of an indemnification as otherwise provided herein), within 30 days from
the date the Administrative Agent or the relevant Lender, as the case may be,
makes written demand for it. A certificate as to the amount of such Taxes or
Other Taxes submitted to the relevant Borrower by the Administrative Agent or
the relevant Lender shall be conclusive evidence, absent manifest error, of the
amount due from such Borrower to the Administrative Agent or the Lenders, as the
case may be.
(4) Each Borrower shall furnish to the Administrative Agent and
the Lenders the original or a certified copy of a receipt evidencing payment of
Taxes or Other Taxes made by it within 30 days after the date of any payment of
Taxes or Other Taxes.
(5) All payments to the relevant Lenders or to the Administrative
Agent by Nationwide under any of the Credit Documents shall be made free and
clear of and without deduction or withholding for or on account of any Taxes
imposed by the United States of America or Canada (or any political subdivision
or taxing authority thereof or therein and other than Taxes which are required
to be withheld or deducted by (y) Canada in respect of Taxes otherwise payable
to Canada (or any political subdivision or taxing authority thereof or therein)
by the relevant Lender in respect of its taxable income, or (z) the United
States of America in respect of Taxes otherwise payable to the United States of
America (or any political subdivision of or taxing authority thereof or therein)
by the relevant Lender in respect of its taxable income), unless such deduction
or withholding is required by law. If any deduction or withholding of such Taxes
is so required, (i) the amount payable by Nationwide in respect of which such
deduction or withholding is required to be made shall be increased (and for
greater certainty in the case of interest, the amount of interest will be
increased) as may be necessary to ensure that, after making all required
deductions or withholdings (including deductions or withholdings applicable to
any additional amounts paid under this Section 11.07(5)), the relevant Lenders
or the Administrative Agent receive an amount (free and clear of such Taxes)
equal to the amount they would have received if no such deduction or withholding
had been made or required to be made, (ii) Nationwide shall make such required
deductions or withholdings, and (iii) Nationwide shall immediately pay the full
amount deducted or withheld to the relevant Governmental Entity in accordance
with applicable law. The foregoing obligation to pay additional amounts will not
apply: (i) to any tax required to be deducted or withheld solely by reason of
the failure of the Administrative Agent or any relevant Lender to comply, at
Nationwide's reasonable request, with certification, identification or
information reporting requirements concerning the nationality, residence,
identity or connection to the taxing jurisdiction if compliance is required by
statute, by regulation or by an applicable income tax treaty as a precondition
for
100
-99-
any exemption or reduction from such tax, and (ii) to any tax not imposed on or
measured by income or receipts (gross or net).
(6) If a Lender shall demand payment from a Borrower under this
Section 11.07 (other than in respect of Other Taxes), such Borrower may, within
30 Business Days after receiving such notice, upon giving 10 Business Days'
notice to the Administrative Agent and the Lender requiring such payment, elect
to prepay to such Lender all or such part of the amount of the Accommodations
owing to such Lender as may be specified by the Borrower in such notice. Any
such notice so given shall be irrevocable and such Borrower shall, on the tenth
Business Day after the giving of such notice, prepay to such Lender the amount
of the Accommodations Outstanding required to be paid pursuant to the giving of
such notice together with all interest accrued thereon, all amounts payable
under this Section 11.07 and all other amounts payable to such Lender in
connection with such prepayment pursuant to Section 11.06 or otherwise. Such
Lender's Commitments so prepaid shall be correspondingly permanently reduced or
terminated (as the case may be) on the tenth Business Day after the giving of
such notice (and, for greater certainty, no other Lender shall be responsible
therefor), and the aggregate Commitments shall be reduced by the amount and at
the time of any prepayments so made.
(7) The provisions of this Section 11.07 shall survive the
termination of this Agreement and the repayment of all Accommodations
Outstanding.
SECTION 11.08. SUCCESSORS AND ASSIGNS.
(1) This Agreement shall become effective when executed by the
Borrowers, the Administrative Agent and each Lender and after that time shall be
binding upon and enure to the benefit of the Borrowers, the Lenders and the
Administrative Agent and their respective successors and permitted assigns.
(2) None of the Borrowers shall have the right to assign its
rights or obligations under this Agreement or any interest in this Agreement
without the prior consent of all the Lenders, which consent may be arbitrarily
withheld.
(3) Subject to the next following sentence, a Lender may (i) with
the prior written consent of the Administrative Agent (which consent is not to
be unreasonably withheld), grant participations in all or any part of its
interest in the Credit Facilities to one or more Persons (each a "PARTICIPANT"),
or (ii) (y) at any time prior to the occurrence of an Event of Default which has
not been waived or cured, with the prior written consent of the Administrative
Agent and Bracknell (which consent is not to be unreasonably withheld), or (z)
at any time after the occurrence and during the continuance of an Event of
Default, without any requirement for notice to or consent of any of the
Borrowers, assign all or any part of its interest in the Credit Facilities to
one or more Persons (each an "ASSIGNEE").
101
-100-
In the case of any assignment or participation, (iii) unless an Event of Default
shall have occurred and be continuing, such participation or assignment shall be
in respect of at least U.S. $10,000,000 (or the total Commitment of the
assigning Lender if such total Commitment is less than U.S. $10,000,000) and
U.S. $1,000,000 increments thereof, (iv) in the case of an assignment of a
Lender's Canadian Commitment prior to a declaration pursuant to Section 9.01 of
this Agreement, the Assignee shall not be a non-resident of Canada and, in the
case of an assignment of a Lender's U.S. Commitment prior to a declaration
pursuant to Section 9.01 of this Agreement, the Assignee shall be a Person
described in the definition of "Foreign Lender", (v) unless an Event of Default
shall have occurred and be continuing, no Lender shall have a Commitment of less
than U.S. $10,000,000 as a result of such assignment, and (vi) the assigning
Lender shall have paid an administration fee of U.S. $3,500 to the
Administrative Agent. A Lender granting a participation shall, unless otherwise
expressly provided in this Agreement, act on behalf of all of its Participants
in all dealings with the Borrowers in respect of the Credit Facilities and no
Participant shall have any voting or consent rights with respect to any matter
requiring the Lenders' consent. In the case of an assignment, the Assignee shall
have the same rights and benefits and be subject to the same limitations under
the Credit Documents as it would have if it was a Lender, provided that no
Assignee shall be entitled to receive any greater payment, on a cumulative
basis, pursuant to Section 11.06 than the Lender which granted the assignment
would have been entitled to receive.
(4) The Borrowers shall provide such certificates,
acknowledgements and further assurances in respect of this Agreement and the
Credit Facilities as any Lender may reasonably require in connection with any
participation or assignment pursuant to this Section 11.08.
(5) In the case of an assignment, a Lender shall deliver to the
Borrowers an assignment and assumption agreement substantially in the form of
Schedule 9 by which an Assignee of the Lender assumes the obligations and agrees
to be bound by all the terms and conditions of this Agreement, all as if the
Assignee had been an original party. Upon receipt by the Administrative Agent of
the assignment and assumption agreement, the assigning Lender and the Borrowers
shall be released from their respective obligations under this Agreement (to the
extent of such assignment and assumption) and shall have no liability or
obligations to each other to such extent, except in respect of matters arising
prior to the assignment.
(6) Any assignment or grant of participation pursuant to this
Section 11.08 will not constitute a repayment by a Borrower to the assigning or
granting Lender of any Accommodation, nor a new Accommodation to a Borrower by
such Lender or by the Assignee or Participant, as the case may be, and the
parties acknowledge that the Borrowers' obligations with respect to any such
Accommodations will continue and will not constitute new obligations.
102
-101-
SECTION 11.09. RIGHT OF SET-OFF.
Upon the occurrence and during the continuance of any Event of
Default, each Lender is authorized at any time and from time to time, to the
fullest extent permitted by law (including general principles of common law),
to set-off and apply any and all deposits (general or special, time or demand,
provisional or final) at any time held and other indebtedness at any time owing
by it to or for the credit or the account of a Borrower against any and all of
the obligations of the Borrowers under any of the Credit Documents,
irrespective of whether or not the Lender has made demand under any of the
Credit Documents and although such obligations may be unmatured or contingent.
If an obligation is unascertained, the Lender may, in good faith, estimate the
obligation and exercise its right of set-off in respect of the estimate,
subject to providing the Borrower with an accounting when the obligation is
finally determined. Each Lender shall promptly notify Bracknell and the
Administrative Agent after any set-off and application is made by it, provided
that the failure to give notice shall not affect the validity of the set-off
and application. The rights of the Lenders under this Section 11.09 are in
addition to any other rights and remedies (including all other rights of
set-off) which the Lenders may have.
SECTION 11.10. ACCOMMODATIONS BY LENDERS.
The failure of any Lender to make an Accommodation shall not relieve
any other Lender of its obligations in connection with such Accommodation, but
no Lender is responsible for any other Lender's failure in respect of an
Accommodation. Unless the Administrative Agent receives notice from a Lender
prior to the date of any Accommodation that the Lender will not make its
rateable portion of the Accommodation available to the Administrative Agent,
the Administrative Agent may assume that the Lender has made its portion so
available on the date of the Accommodation and may, in reliance upon such
assumption, make a corresponding amount available to the relevant Borrower. If
the Lender has not made its rateable portion available to the Administrative
Agent, the Lender shall pay the corresponding amount to the Administrative
Agent immediately upon demand. If the Lender pays the corresponding amount to
the Administrative Agent, the amount so paid shall constitute the Lender's part
of the Accommodation for purposes of this Agreement. If the Lender does not pay
the amount to the Administrative Agent immediately upon demand and such amount
has been made available to the relevant Borrower, the Borrower shall pay the
corresponding amount to the Administrative Agent immediately upon demand and
any amount received and so reimbursed would not and will not constitute an
Accommodation. The Administrative Agent shall also be entitled to recover from
the Lender or the relevant Borrower, as the case may be, interest on the
corresponding amount, for each day from the date the amount was made available
to the Borrower until the date it is repaid to the Administrative Agent, at a
rate per annum equal to the Administrative Agent's cost of funds.
103
-102-
SECTION 11.11. RATEABLE PAYMENTS.
Unless the Administrative Agent receives notice from Bracknell prior
to the date on which any payment is due to the Lenders that a Borrower will not
make the payment in full, the Administrative Agent may assume that the Borrower
has made the payment in full on that date and may, in reliance upon that
assumption, distribute to each Lender on the due date an amount equal to the
amount then due to the Lender. If a Borrower has not made the payment in full,
each Lender shall repay to the Administrative Agent immediately upon demand the
amount distributed to it together with interest for each day from the date such
amount was distributed to the Lender until the date the Lender repays it to the
Administrative Agent, at a rate per annum equal to the Administrative Agent's
cost of funds.
SECTION 11.12. JUDGMENT CURRENCY.
(1) If, for the purposes of obtaining judgment in any court, it is
necessary to convert a sum due to a Lender or the Administrative Agent in any
currency (the "Original Currency") into another currency (the "Other
Currency"), the parties agree, to the fullest extent that they may effectively
do so, that the rate of exchange used shall be that at which, in accordance
with normal banking procedures, such Lender or the Administrative Agent could
purchase the Original Currency with the Other Currency on the Business Day
preceding the day on which final judgment is given or, if permitted by
applicable law, on the day on which the judgment is paid or satisfied.
(2) The obligations of a Borrower in respect of any sum due in the
Original Currency from it to any Lender or the Administrative Agent under any
of the Credit Documents shall, notwithstanding any judgment in any Other
Currency, be discharged only to the extent that on the Business Day following
receipt by the Lender or the Administrative Agent of any sum adjudged to be so
due in the Other Currency, the Lender or the Administrative Agent may, in
accordance with normal banking procedures, purchase the Original Currency with
such Other Currency. If the amount of the Original Currency so purchased is
less than the sum originally due to the Lender or the Administrative Agent in
the Original Currency, the Borrower agrees, as a separate obligation and
notwithstanding the judgment, to indemnify the Lender or the Administrative
Agent against any loss and, if the amount of the Original Currency so purchased
exceeds the sum originally due to the Lender or the Administrative Agent in the
Original Currency, the Lender or the Administrative Agent shall remit such
excess to the Borrower.
SECTION 11.13. INTEREST ON ACCOUNTS.
Except as may be expressly provided otherwise in this Agreement, all
amounts owed by a Borrower to the Administrative Agent and to any of the
104
-103-
Lenders, which are not paid when due (whether at stated maturity, on demand, by
acceleration or otherwise) shall bear interest (both before and after default
and judgment), from the date on which such amount is due until such amount is
paid in full, payable on demand, at a rate per annum equal at all times to (i)
in the case of an amount payable in U.S. Dollars to Domestic Lenders, the sum
of the U.S. Base Rate in effect from time to time, the Applicable Margin and
2%, (ii) in the case of an amount payable in U.S. Dollars to Foreign Lenders,
the sum of the U.S. Prime Rate in effect from time to time, the Applicable
Margin and 2%, and (iii) in the case of an amount payable in Canadian Dollars,
the sum of the Canadian Prime Rate in effect from time to time, the Applicable
Margin and 2%.
SECTION 11.14. SEVERABILITY.
Any provision of this Agreement which is or becomes prohibited or
unenforceable in any jurisdiction does not invalidate, affect or impair the
remaining provisions thereof and any such prohibition or unenforceability in
any jurisdiction does not invalidate or render unenforceable such provision in
any other jurisdiction.
SECTION 11.15. GOVERNING LAW.
This Agreement shall be governed by and interpreted and enforced in
accordance with the laws of the Province of Ontario and the laws of Canada
applicable therein.
SECTION 11.16. COUNTERPARTS.
This Agreement may be executed in any number of counterparts
(including by way of facsimile) and all of such counterparts taken together
shall be deemed to constitute one and the same instrument.
SECTION 11.17. REFERENCE TO AND EFFECT ON THE ORIGINAL CREDIT
AGREEMENT.
On and after the date hereof, each reference in the Original Credit
Agreement to "this Agreement", "hereunder", "hereof", "herein" or words like
import, and each reference to the Original Credit Agreement in the Credit
Documents and all other agreements, documents, instruments delivered by all or
any one or more of the Administrative Agent, the Lenders, the Borrowers and any
other Person, shall mean and be a reference to the Original Credit Agreement as
amended and restated hereby, and except as specifically amended and restated
and as the Credit Agreement may be further amended, restated or supplemented,
the
105
-104-
Original Credit Agreement shall remain in full force and effect and is hereby
ratified and confirmed.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their respective authorized officers as of the date first above
written.
BRACKNELL CORPORATION
Per:
---------------------------------
Authorized Signing Officer
Per:
---------------------------------
Authorized Signing Officer
NATIONWIDE ELECTRIC, INC.
Per:
---------------------------------
Authorized Signing Officer
THE STATE GROUP LIMITED
Per:
---------------------------------
Authorized Signing Officer
106
-105-
COMMITMENTS THE LENDERS
Canadian Term ROYAL BANK OF CANADA
Commitment:
U.S. $5,215,517 Per:
-----------------------------------------------
Authorized Signing Officer
Canadian Acquisition
Commitment:
Per:
-----------------------------------------------
Authorized Signing Officer
U.S. $1,043,103 Address: ▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ Operating Toronto, ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇: ▇▇▇ ▇▇▇
▇.▇. $6,250,000
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Canadian Swingline Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Commitment:
Attention: Senior Account Manager
U.S. $5,000,000
107
-106-
Canadian Term CANADIAN IMPERIAL BANK OF
Commitment: COMMERCE
U.S. $4,353,448 Per:
-----------------------------------------------
Authorized Signing Officer
Canadian Acquisition
Commitment:
Per:
-----------------------------------------------
U.S. $870,690 Authorized Signing Officer
Address: BCE Place
Canadian Operating ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇: ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
U.S. $6,250,000
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. Mastromarini
Director, Canadian
Credit Capital Markets
Canadian Term THE TORONTO-DOMINION BANK
Commitment:
U.S. $4,353,448 Per:
------------------------------------------------
Authorized Signing Officer
Canadian Acquisition
Commitment:
Per:
U.S. $870,690 -----------------------------------------------
Authorized Signing Officer
Address: ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ Operating Toronto-Dominion Tower
Commitment: ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
U.S. $6,250,000 M5K 1A2
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
Vice President, Corporate
Credit
▇▇▇
-▇▇▇-
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Commitment:
U.S. $3,732,759 Per:
-----------------------------------------------
Authorized Signing Officer
Canadian Acquisition Address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
Commitment: Suite 2700
Toronto, Ontario
U.S. $746,552 ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ Operating Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Commitment: Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
U.S. $6,250,000 Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Vice President, Global
Corporate & Investment
Banking
Canadian Term BANK OF MONTREAL
Commitment:
U.S. $2,698,276 Per:
-----------------------------------------------
Authorized Signing Officer
Canadian Acquisition
Commitment:
Per:
-----------------------------------------------
U.S. $539,655 Authorized Signing Officer
Address: ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Director, Asset Portfolio
Management
109
-108-
Canadian Term BANK ONE CANADA
Commitment:
U.S. $2,353,448 Per:
-----------------------------------------------
Authorized Signing Officer
Canadian Acquisition
Commitment:
Per:
U.S. $470,690 -----------------------------------------------
Authorized Signing Officer
Address: ▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
Canadian Term COMERICA BANK - CANADA
Commitment:
U.S. $2,293,103 Per:
-----------------------------------------------
Authorized Signing Officer
Canadian Acquisition
Commitment:
Per:
U.S. $458,621 -----------------------------------------------
Authorized Signing Officer
Address: ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Managing Director
110
-109-
U.S. Operating ROYAL BANK OF CANADA
Commitment:
U.S. $7,500,000 Per:
-----------------------------------------------
Authorized Signing Officer
Address: Royal Bank of Canada
Grand Cayman
(North America No. 1)
Branch
c/o New York Branch
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
with a copy to:
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇.▇. ▇▇▇▇▇▇
U.S. Operating CIBC INC.
Commitment:
U.S. $5,500,000 Per:
-----------------------------------------------
Authorized Signing Officer
Per:
-----------------------------------------------
Authorized Signing Officer
Address: CIBC World Markets
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
111
-110-
U.S. Operating TORONTO DOMINION (TEXAS) INC.
Commitment:
U.S. $5,500,000 Per:
-----------------------------------------------
Authorized Signing Officer
Address: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇
U.S. Operating BANK OF AMERICA, N.A.
Commitment:
U.S. $4,600,000 Per:
-----------------------------------------------
Authorized Signing Officer
Address: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇▇ ▇▇
Vice President
112
-111-
U.S. Operating BANK OF MONTREAL
Commitment:
U.S. $6,850,000 Per:
-----------------------------------------------
Authorized Signing Officer
Per:
-----------------------------------------------
Authorized Signing Officer
Address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
U.S. Operating BANK ONE, KENTUCKY, N.A.
Commitment:
U.S. $6,350,000 Per:
-----------------------------------------------
Authorized Signing Officer
U.S. Alternate Operating
Commitment:
Per:
-----------------------------------------------
U.S. $5,000,000 Authorized Signing Officer
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇:
▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
113
-112-
U.S. Operating COMERICA BANK
Commitment:
U.S. $6,200,000 Per:
-----------------------------------------------
Authorized Signing Officer
Per:
-----------------------------------------------
Authorized Signing Officer
Address: ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇
114
-113-
THE ADMINISTRATIVE AGENT
ROYAL BANK OF CANADA
Per:
-----------------------------------------------
Authorized Signing Officer
Address: Global Banking -
Canada
Royal Bank Plaza
South Tower
▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Manager, Agency
115
SCHEDULE 1
FORM OF BORROWING NOTICE
[DATE]
Royal Bank of Canada, as
Administrative Agent
Global Banking
Royal Bank Plaza
200 Bay Street, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
Attention: Manager, Agency
Dear Sirs:
The undersigned, [BORROWER] (the "BORROWER"), refers to the second
amended and restated credit agreement dated as of July 21, 2000 (as amended,
supplemented or restated from time to time, the "CREDIT AGREEMENT", the terms
defined therein being used herein as therein defined) among Bracknell
Corporation, The State Group Limited and Nationwide Electric, Inc. as
Borrowers, the Administrative Agent and the Lenders, and hereby gives you
notice pursuant to Section 3.02 of the Credit Agreement that the Borrower
hereby requests a Borrowing under the Credit Agreement, and, in that connection
sets forth below the information relating to such Borrowing (the "PROPOSED
BORROWING") as required by Section 3.02 of the Credit Agreement:
(i) The date of the Proposed Borrowing, being a Business Day, is
--.
(ii) The Type of Advance is a [CANADIAN PRIME RATE ADVANCE, U.S.
BASE RATE ADVANCE, LIBOR RATE ADVANCE OR U.S. PRIME RATE
ADVANCE].
(iii) The aggregate amount of the Proposed Borrowing is --.
(iv) The Credit Facility under which the Proposed Borrowing is
requested is --.
(V) [THE LIBOR INTEREST PERIOD IS -- DAYS.]
The undersigned certifies that the conditions precedent under the
Credit Agreement to the giving of this Borrowing Notice and the making of the
Accommodation contemplated hereby have been fully satisfied.
116
-2-
The undersigned confirms and certifies to the Administrative Agent and
each Lender that as of the date of this Borrowing Notice, no Default or Event
of Default has occurred and is continuing under the Credit Agreement.
The undersigned further confirms and certifies to the Administrative
Agent and each Lender that the proceeds of the Borrowing will be used solely
for the purposes specified and permitted by Section 2.03 of the Credit
Agreement.
Yours truly,
[BORROWER]
Per:
-----------------------
Authorized Signatory
117
SCHEDULE 2
FORM OF ELECTION NOTICE
[DATE]
Royal Bank of Canada, as
Administrative Agent
Global Banking
Royal Bank Plaza
200 Bay Street, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
Attention: Manager, Agency
Dear Sirs:
The undersigned, [BORROWER] (the "BORROWER"), refers to the second
amended and restated credit agreement dated as of July 21, 2000 (as amended,
supplemented or restated from time to time the "CREDIT AGREEMENT"; the terms
defined therein being used herein as therein defined) among Bracknell
Corporation, The State Group Limited and Nationwide Electric, Inc. as
Borrowers, the Administrative Agent and the Lenders and hereby gives you notice
pursuant to Section 3.03 of the Credit Agreement that the Borrower hereby
[ELECTS TO CONVERT ONE TYPE OF ADVANCE TO ANOTHER TYPE OF ADVANCE] or [ELECTS
TO CONVERT ONE TYPE OF ADVANCE TO ANOTHER TYPE OF ACCOMMODATION] or [ELECTS AN
ADDITIONAL LIBOR INTEREST PERIOD FOR CERTAIN LIBOR RATE ADVANCES], and in that
connection sets forth below the information relating to such election as
required by Section 3.03 of the Credit Agreement:
(i) The Business Day on which the conversion from one Type of
Advance to another is to be made --.*
(ii) The Type of Advance to be converted is [INSERT AMOUNT,
CURRENCY AND TYPE OF ADVANCE] under the [CANADA] [U.S.] [TERM
FACILITY], [ACQUISITION FACILITY] or [OPERATING FACILITY].*
(iii) The new [TYPE OF ADVANCE] or [TYPE OF ACCOMMODATION] selected
is --.*.
(iv) The initial Libor Interest Period for Libor Rate Advance is
--.**
118
-2-
(v) The Libor Rate Advance which is to be continued as a Libor
Rate Advance is [SPECIFY AMOUNT].***
(vi) The current Libor Interest Period for such Libor Rate Advance
expires on [SPECIFY DATE].***
(vii) The additional Libor Interest Period selected for such Libor
Rate Advance is --.***
The undersigned certifies that the conditions precedent under the
Credit Agreement to the giving of this Election Notice and the making of the
Accommodation contemplated hereby have been fully satisfied.
The undersigned confirms and certifies to the Administrative Agent and
each Lender that as of the date of this Election Notice no Default or Event of
Default has occurred and is continuing under the Credit Agreement.
The undersigned further confirms and certifies to the Administrative
Agent and each Lender that the proceeds of the Borrowing will be used solely
for the purposes specified and permitted by Section 2.03 of the Credit
Agreement.
Yours truly,
[BORROWER]
Per:
-----------------------
Authorized Signatory
------------------
* Omit Clauses (i), (ii), (iii) and (v) if the election does not
involve a conversion of a Type of Advance.
** Omit Clause (v) if the conversion of Type of Advance does not involve
a conversion to a Libor Rate Advance.
*** Omit Clauses (v), (vi) and (vii) if the election does not involve the
selection of an additional Libor Interest Period for a Libor Rate Advance.
119
SCHEDULE 3
FORM OF DRAWING NOTICE
[DATE]
Royal Bank of Canada, as
Administrative Agent
Global Banking
Royal Bank Plaza
200 Bay Street, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
Attention: Manager, Agency
Dear Sirs:
The undersigned, [BORROWER] (the "BORROWER"), refers to the second
amended and restated credit agreement dated July 21, 2000 (as amended,
supplemented or restated from time to time, the "CREDIT AGREEMENT", the terms
defined therein being used herein as therein defined) among Bracknell
Corporation, The State Group Limited and Nationwide Electric, Inc. as
Borrowers, the Administrative Agent and the Lenders and hereby gives you notice
pursuant to Section 4.03 of the Credit Agreement that the Borrower hereby
requests a Drawing under the Credit Agreement, and, in that connection sets
forth below the information relating to such Drawing (the "PROPOSED DRAWING")
as required by Section 4.03(1) of the Credit Agreement:
(i) The Drawing Date of the Proposed Drawing, being a Business
Day, is --.
(ii) The Credit Facility under which the Proposed Drawing is
requested is --.
(iii) The aggregate Face Amount of Drafts to be accepted and
purchased is Cdn. $--.
(iv) The contract maturity date of the Drafts is --.
The undersigned certifies that the conditions precedent under the
Credit Agreement to the giving of this Drawing Notice and the making of the
Accommodation contemplated hereby have been fully satisfied.
120
-2-
The undersigned confirms and certifies to the Administrative Agent and
each Lender that as of the date of this Drawing Notice no Default or Event of
Default has occurred and is continuing under the Credit Agreement.
The undersigned further confirms and certifies to the Administrative
Agent and each Lender that the proceeds of the Borrowing will be used solely
for the purposes specified and permitted by Section 2.03 of the Credit
Agreement.
Yours truly,
[BORROWER]
Per:
-----------------------
Authorized Signatory
121
SCHEDULE 4
FORM OF ISSUE NOTICE
[DATE]
Royal Bank of Canada, as
Administrative Agent
Global Banking
Royal Bank Plaza
200 Bay Street, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
Attention: Manager, Agency
Dear Sirs:
The undersigned, [BORROWER] (the "BORROWER"), refers to the second
amended and restated credit agreement dated as of July 21, 2000 (as amended,
supplemented or restated from time to time; the "CREDIT AGREEMENT"; the terms
defined therein being used herein as therein defined) among Bracknell
Corporation, the State Group Limited and Nationwide Electric, Inc. as
Borrowers, the Administrative Agent and the Lenders and hereby gives you notice
pursuant to Section 5.02 of the Credit Agreement that the Borrower hereby
requests an Issue under the Credit Agreement, and, in that connection; sets
forth below the information relating to such Issue (the "PROPOSED ISSUE") as
required by Section 5.02 of the Credit Agreement:
(i) The Business Day of the Proposed Issue is --.
(ii) The Type of Documentary Credit is --.
(iii) The Credit Facility under which the Proposed Issue is
requested is -- and the Issuing Lender is --.
(iv) The Face Amount of and currency of the Documentary Credit is
--.
(v) The expiration date of the Documentary Credit is --.
(vi) The name and address of the Beneficiary of the Documentary
Credit is --.
The undersigned certifies that the conditions precedent under the
Credit Agreement to the giving of this Issue Notice and the making of the
Accommodation contemplated hereby have been fully satisfied.
122
-2-
The undersigned confirms and certifies to the Administrative
Agent and each Lender that as of the date of this Issue Notice no Default or
Event of Default has occurred and is continuing under the Credit Agreement.
The undersigned further confirms and certifies to the
Administrative Agent and each Lender that the Documentary Credit will be used
solely for the purposes specified and permitted by Section 2.03 of the Credit
Agreement.
Yours truly,
[BORROWER]
Per:
----------------------
Authorized Signatory
123
SCHEDULE 5
NOTICE PERIODS
BORROWING NOTICE,
DRAWING NOTICE,
ISSUE NOTICE OR
REPAYMENTS CONVERSION/ PREPAYMENT OR
(SECTIONS 3.02, 4.03 ELECTION (SECTION REDUCTION OF
TYPE OF ACCOMMODATION AND 5.02) 3.03) COMMITMENT
-----------------------------------------------------------------------------------------------------------
Canadian Prime Rate Advance 1 Business Day* 1 Business Day 3 Business Days
Bankers' Acceptances 2 Business Day 2 Business Day --
U.S. Base Rate Advance 1 Business Day* 1 Business Day 3 Business Days
Libor Rate Advance 3 Business Days 3 Business Days --
U.S. Prime Rate Advance 1 Business Day* 1 Business Day 3 Business Days
Documentary Credit 3 Business Days -- --
*Borrowings by way of Canadian Prime Rate Advances, U.S. Base Rate Advances or
U.S. Prime Rate Advances may be available on same day notice for up to Cdn.
$10,000,000 or U.S. $10,000,000 as the case may be.
In the case of conversion, the notice period applicable to the other Type of
Accommodation into which an Accommodation is to be converted must also be
observed.
The day on which any notice is given is included and the day on which the
specified action is to occur are excluded in calculating the notice period.
124
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 TO PRIME LIBOR MARGIN,
CONSOLIDATED RATE, B/A'S, L/C'S, AND
EBITDA FACILITY FEES USBR L/G'S ALL-IN DRAWN
-----------------------------------------------------------------------------------------
[] 1.5:1 75.0 NIL 100.0 75.0/175.0
>1.5:1 [] 2.0:1 75.0 25.0 125.0 100.0/200.0
>2.0:1 [] 2.5:1 75.0 50.0 150.0 125.0/225.0
>2.5:1 [] 3.0:1 75.0 100.0 200.0 175.0/275.0
>3.0:1 [] 3.5:1 95.0 130.0 230.0 225.0/325.0
>3.5:1 [] 4.0:1 110.0 165.0 265.0 275.0/375.0
>4.0:1 []4.25:1 137.5 187.5 287.5 325.0/425.0
B. OPERATING FACILITIES:
RATIO OF
TOTAL NET
DEBT TO PRIME LIBOR MARGIN,
CONSOLIDATED RATE, B/A'S, L/C'S, AND
EBITDA FACILITY FEES USBR L/G'S ALL-IN DRAWN
-----------------------------------------------------------------------------------------
[] 1.5:1 30.0 45.0 145.0 75.0/175.0
>1.5:1 [] 2.0:1 37.5 62.5 162.5 100.0/200.0
>2.0:1 [] 2.5:1 37.5 87.5 187.5 125.0/225.0
>2.5:1 [] 3.0:1 50.0 125.0 225.0 175.0/275.0
>3.0:1 [] 3.5:1 62.5 162.5 262.5 225.0/325.0
>3.5:1 [] 4.0:1 75.0 200.0 300.0 275.0/375.0
>4.0:1 [] 4.25:1 87.5 237.5 337.5 325.0/425.0
125
SCHEDULE 7
FORM OF COMPLIANCE CERTIFICATE
[DATE]
Royal Bank of Canada, as
Administrative Agent
Global Banking
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇ ▇▇▇▇▇▇
12th Floor, South Tower
Toronto, Ontario
M5J 2J5
Attention: --
Dear Sirs:
The undersigned, Bracknell Corporation ("BRACKNELL"), refers to the
Second Amended and Restated Credit Agreement dated as of July 21, 2000 (as it
may be amended, restated, replaced or supplemented from time to time, the
"CREDIT AGREEMENT", the terms defined therein being used herein as therein
defined) among Bracknell Corporation, The State Group Limited and Nationwide
Electric, Inc. as Borrowers, the financial institutions that are parties
thereto as Lenders and Royal Bank of Canada, as Administrative Agent. The
[QUARTERLY/ANNUAL] Compliance Certificate is delivered pursuant to Section 8.01
of the Credit Agreement for the [FINANCIAL YEAR/QUARTER] ending on [--] (the
"PERIOD").
I, _______________________________, the Chief Financial Officer of
Bracknell, in such capacity and not personally, hereby certify that:
1. I am the duly appointed Chief Financial Officer of Bracknell and as
such I am providing this certificate for and on behalf of Bracknell
pursuant to the Credit Agreement.
2. I am familiar with and have examined the provisions of the Credit
Agreement.
3. To the best of my knowledge, information and belief, and after due
inquiry, no Default or Event of Default has occurred and is continuing
as at the date hereof.
4. The financial statements delivered pursuant to Section 8.01 of the
Credit Agreement have been prepared in accordance with GAAP in effect
on the date of such financial statements. The information contained
therein is true and
126
-2-
correct in all material respects, subject only to year end audit
adjustments and presents fairly and consistently the results of
operations and changes in the financial position of the Borrowers as
of and to the date thereof.
5. The representations and warranties contained in Article 7 of the
Credit Agreement are true and correct, in all material respects, as
though made on the date hereof (other than those which relate solely
to a prior time).
6. As at the date hereof, Bracknell has raised $-- in the public capital
markets.
7. As of the date hereof, the aggregate Total Enterprise Value of all
Acquisitions is $--.
8. As of the date hereof, the aggregate Net Proceeds received in
connection with permitted asset dispositions is $--.
9. As of the date hereof, the total amount of Investments in Joint
Ventures is $--.
10. As at the last day of [DATE] the following ratios or calculations, as
the case may be, were as follows:
(a) Total Debt as a percentage of
Capitalization:
(b) Total Net Debt to Consolidated
EBITDA:
(c) Consolidated EBITDA to Consolidated
Interest Expense:
(d) Consolidated EBITDA to Consolidated
Debt Service:
(e) Senior Net Debt to Consolidated EBITDA:
DATED this _________ day of _______________________, _______.
------------------------------
(Signature)
------------------------------
(Name - please print)
Chief Financial Officer
127
SCHEDULE 7.01(F)
LOCATION OF ASSETS AND BUSINESS
New Brunswick
Quebec
Ontario
Manitoba
Saskatchewan
Alberta
British Columbia
Nova Scotia
Michigan
Indiana
Kentucky
Ohio
Georgia
Minnesota
Nevada
California
New Jersey
Tennessee
South Carolina
Texas
Illinois
128
SCHEDULE 7.01(G)
AUTHORIZATIONS
1. The Borrowers and the Restricted Subsidiaries have all necessary
contractor and trade licenses, certifications, authorizations,
registrations and approvals in every jurisdiction in which they carry
on business.
2. The Borrowers and the Restricted Subsidiaries have non-gaming supplier
licenses to provide services to the gaming industry in various
jurisdictions in Canada and the U.S. and for certain tribes.
129
SCHEDULE 7.01(I)
OWNED PROPERTIES
BRACKNELL CORPORATION
1. Vacant land at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇.
THE STATE GROUP LIMITED
2. Land (original price $166,977) and the building (original price
$602,401) at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇.
3. Land (original price $100,024) and the building (original price of
$84,021) at ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇. ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇.
HIGHLIGHT CONSTRUCTION LTD.
4. Land and the building (original price of $225,000 collectively) at
#▇-▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇.
130
SCHEDULE 7.01(J)
LEASED PROPERTIES
BRACKNELL CORPORATION
ADDRESS: LESSOR: PERIOD:
-------- ------- -------
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ Medcan Health Management June 1, 1998 to May 31, 2003
THE STATE GROUP LIMITED AND SUBSIDIARIES
ADDRESS: LESSOR: PERIOD:
-------- ------- -------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇▇▇▇ Place Investments Nov. ▇▇▇▇ - ▇▇▇. ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇ Development Company Oct. 1996 - Sept. ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Long Par Four Revocable Trust Jan. 1998 - Dec. 2000
1574 ▇▇▇▇ St., ▇. ▇▇▇▇▇▇▇▇ & ▇. ▇▇▇▇▇▇▇▇ Nov. 1996 - Oct. ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ Inc. Dec. 1999 - Nov. ▇▇▇▇
▇▇▇▇ #▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇ ▇▇., ▇ ▇▇▇▇▇▇ ▇▇. ▇▇▇.
▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇., ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇. ▇., ▇▇▇▇▇ & Antoniella ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ Creek, Ontario
Monogram Place Sign Neon Products
Airport Ind. Pkwy., #800, Kiew Investment Corp.
Breslau, Ontario
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
P.O. Box 4530, ▇▇▇ ▇▇▇▇ Development
Evansville, IN
▇▇▇ ▇▇▇▇▇▇▇ ▇▇., TGS Management Services Ltd., In Trust
Regina, Saskatchewan Sun Life Assurance Co.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇ - ▇▇ ▇▇. ▇.▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇
17620 - 107 Ave., HMR Properties Inc.
Edmonton, AB
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇
131
- 2-
32 Voyager Crt., ▇▇▇▇ Investment Ltd.
Etobicoke, Ontario
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇
2 - 4 Cataraqui St., ABNA Investments Ltd.
▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇., ▇ & ▇ ▇▇▇▇▇▇▇▇▇ Holdings Inc.
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇ Stadeview Cr., ▇▇▇▇ ▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇ ▇, ▇▇▇▇ ▇▇▇▇▇ Investments Ltd.
Dartmouth, NS
35 Goderich Rd., ▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇, Daylight Properties LLC
Evansville, IN
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇, Krew Investments Corporation
Breslean, Ontario
▇▇▇-▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ Properties Group Inc. & Patrim
Etobicoke, Ontario Properties Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, B&D ▇▇▇▇▇▇▇▇▇ Holdings Inc.
Oakville, Ontario (sublandlord)
132
- 3-
ARTICLE 1
NATIONWIDE ELECTRIC, INC. AND SUBSIDIARIES
Lease for ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ between Henderson Family Enterprises,
LLC (lessor) and ▇▇▇▇▇▇▇ Electric Co. (lessee).
Lease for ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ between Henderson Family
Enterprises, LLC (lessor) and ▇▇▇▇▇▇▇ Electric Co. (lessee).
Lease for ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇, ▇▇ between Henderson Family Enterprises,
LLC (lessor) and Eagle Electric Holdings, Inc. (lessee).
Lease for ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ between Harmony Hill
Partners, L.P. (lessor) and the ▇▇▇▇▇▇▇ Company (lessee).
Lease for ▇▇▇▇ ▇.▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ between ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇▇
▇. ▇▇▇▇▇ (lessor ) and ▇▇▇▇▇▇▇ Electric Co. (lessee).
Lease for ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ #▇, ▇▇▇ ▇▇▇▇▇, ▇▇ between the ▇▇▇▇▇▇▇ ▇▇▇▇▇
and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Revocable Trust (lessor) and Southwest Systems Limited
(lessee).
Sub-lease for ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ between
Nationwide Electric, Inc. (sub-lessee) and Cosgrove, ▇▇▇▇▇ & ▇▇▇▇▇▇▇
(sub-lessor).
Lease for ▇▇▇▇ Electric, Inc. Corporate Headquarters at ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇ ▇▇.
Lease for ▇▇▇▇ Electric, Inc. storage yard at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
▇▇.
Lease for Southwest Systems Limited office at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇ ▇ & ▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇
SYLVAN INDUSTRIAL PIPING, INC. AND RELATED COMPANIES
Lease for Sylvan Industrial Piping of Tennessee, Inc. at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇.
Lease for Sylvan Industrial Piping of NJ, Inc. at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇, ▇▇.
Lease for Sylvan Industrial Piping, Inc. at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇.
Lease for Sylvan Industrial Piping, Inc. at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇.
BRACKNELL TELECOMMUNICATION SERVICES INC. AND SUBSIDIARIES
Lease for Bracknell Telecommunication Services, Inc. at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇.
Lease for Highlight Construction Ltd. at ▇▇▇▇▇/▇▇▇▇▇-▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇.
Lease for Vista Communication Technologies Ltd. at ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇.
Lease for Highlight Construction Ltd. at ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇.
Lease for Highlight Antenna & Tower Services Ltd. at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇.
Lease for Highlight Solutions, Inc. at 24711 and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇.
Lease for Highlight Solutions, Inc. at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇.
SUNBELT INTEGRATED TRADE SERVICES, INC. AND SUBSIDIARIES
Lease for Quality Mechanical Contractors, Inc. at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇.
Lease for ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, Inc. at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇.
Lease for Quality Mechanical Contractors, Inc. for land usage on Mesa Vista,
▇▇▇▇▇ County, Nevada
Lease for Quality Mechanical Contractors, Inc. for ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇.
Lease for ▇▇▇▇▇▇▇ Electric Company, Inc. at ▇▇▇▇ ▇.▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇.
Lease for ▇▇▇▇▇▇ Electric, Inc. at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇.
Lease for Sunbelt Integrated Trade Services, Inc. at B-102, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇.
133
SCHEDULE 7.01(M)
ENCROACHMENTS
None
134
SCHEDULE 7.01(N)
COMPLIANCE WITH LAWS
None
135
SCHEDULE 7.01(P)
SUBSIDIARIES
I. BORROWERS
BORROWER JURISDICTION SHARE OWNERSHIP (IF A SUBSIDIARY
-------- ------------ --------------------------------
Bracknell Corporation Ontario N/A
The State Group Ontario 100% of the outstanding share capital is owned
Limited by Bracknell Corporation
Nationwide Electric, Inc. Delaware 100% of the outstanding share capital is owned
by Bracknell Corporation
II. RESTRICTED SUBSIDIARIES
SUBSIDIARY JURISDICTION SHARE OWNERSHIP
---------- ------------ ---------------
The State Services Group Limited Ontario 100% of the outstanding share capital is owned
by The State Group Limited
The State Group International Michigan 100% of the outstanding share capital is owned
Limited by The State Group Limited
The State Group (USA) Limited Delaware 100% of the outstanding share capital is owned
by The State Group Limited
Preferred Electric, Inc. Illinois 100% of the outstanding share capital is owned
by The State Group (USA) Limited
Preferred Electric Construction Illinois 100% of the outstanding share capital is owned
Corp. by The State Group (USA) Limited
Bracknell Telecommunication Ontario 100% of the outstanding share capital is owned
Services Inc. by Bracknell Corporation
▇▇▇▇▇▇▇ Electric Holdings Inc. Delaware 100% of the outstanding share capital is owned
by Nationwide Electric, Inc.
▇▇▇▇▇▇▇ Electric Co. Minnesota 100% of the outstanding share capital is owned
by ▇▇▇▇▇▇▇ Electric Holdings, Inc.
Eagle Electric Holdings, Inc. Minnesota 100% of the outstanding share capital is owned
by Nationwide Electric, Inc.
Eagle Electric Holdings, Inc. Delaware 100% of the outstanding share capital is owned
by Nationwide Electric, Inc.
Eagle Electrical Systems, Inc. Ohio 100% of the LLC interest is owned by Eagle
Electric Holdings, Inc. - Delaware
Southwest Systems Limited Nevada 99% of the outstanding share capital is owned by
Eagle Electric Holdings, Inc. - Delaware, and 1%
owned by Eagle Electrical Systems Inc.
▇▇▇▇▇▇▇-▇▇▇▇▇ Company Georgia 100% of the outstanding share capital is owned by ▇▇▇▇▇▇▇
Electric Holdings, Inc.
▇▇▇▇▇▇▇▇▇ Electric Co. Inc. Delaware 100% of the outstanding share capital is owned
by ▇▇▇▇▇▇▇ Electric Holdings, Inc.
▇▇▇▇ Electric, Inc. California 100% of the outstanding share capital is owned
by ▇▇▇▇▇▇▇ Electric Holdings, Inc.
136
- 2 -
SUBSIDIARY JURISDICTION SHARE OWNERSHIP
---------- ------------ ---------------
▇▇▇▇ Equipment, LLC California 100% of the outstanding share capital is owned by
▇▇▇▇▇▇▇ Electric Holdings, Inc.
354709 Alberta Ltd. Alberta 100% of the outstanding share capital is owned
by Bracknell Corporation
334108 Alberta Ltd. Alberta 100% of the outstanding share capital is owned
by Bracknell Corporation
Sylvan Industrial Piping, Inc. Michigan 100% of the outstanding share capital is
owned by ▇▇▇▇▇▇▇ Electric Holdings, Inc.
Sylvan Industrial Piping of N.J., New Jersey 100% of the outstanding share capital is
Inc. owned by ▇▇▇▇▇▇▇ Electric Holdings, Inc.
Sylvan Industrial Piping of Tennessee 100% of the outstanding share capital is
Tennessee, Inc. owned by ▇▇▇▇▇▇▇ Electric Holdings, Inc.
Highlight Construction Ltd. Alberta 100% of the outstanding share capital is
owned by Bracknell Telecommunications
Services Inc.
Vista Communication Technologies Alberta 100% of the outstanding share capital is
Ltd. owned by Bracknell Telecommunications
Services Inc.
Highlight Antenna Services Ltd. British Columbia 100% of the outstanding share capital is
owned by Bracknell Telecommunications
Services Inc.
Highlight Antenna & Tower Services Saskatchewan 100% of the outstanding share capital is
Ltd. owned by Bracknell Telecommunications
Services Inc.
Highlight Solutions, Inc. Delaware 100% of the outstanding share capital is
owned by Bracknell Telecommunications
Services Inc.
Highlight Towers Ontario Ltd. Ontario 100% of the outstanding share capital is
owned by Bracknell Telecommunications
Services Inc.
Sunbelt Integrated Trade Services, Delaware 100% of the outstanding share capital is
Inc. owned by ▇▇▇▇▇▇▇ Electric Holdings, Inc.
Quality Mechanical Contractors, Inc. Nevada 100% of the outstanding share capital is
owned by Sunbelt Integrated Trade Services,
Inc.
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, Inc. Georgia 100% of the outstanding share capital is
owned by Sunbelt Integrated Trade Services,
Inc.
▇▇▇▇▇▇ Electric, Inc. Texas 100% of the outstanding share capital is
owned by Sunbelt Integrated Trade Services,
Inc.
137
- 3 -
SUBSIDIARY JURISDICTION SHARE OWNERSHIP
---------- ------------ ---------------
Pneu-Temp, Inc. Texas 100% of the outstanding share capital is
owned by Sunbelt Integrated Trade Services,
Inc.
▇▇▇▇▇▇ Industries LLC Texas 100% of the outstanding share capital is owned by
Sunbelt Integrated Trade Services, Inc.
▇▇▇▇▇▇▇ Electric Company, Inc. Texas 100% of the outstanding share capital is
owned by Sunbelt Integrated Trade Services,
Inc.
Bracknell Facilities Delaware 100% of the outstanding share capital is
Services Inc. owned by Nationwide Electric, Inc.
1406883 Ontario Limited Ontario 100% of the outstanding share capital is
owned by Bracknell Corporation.
3041768 Nova Scotia Company Nova Scotia 100% of the outstanding share capital is
owned by Bracknell Limited Partnership
Bracknell B (Wyoming) LLC Wyoming 100% of the outstanding share capital is
owned by 3041768 Nova Scotia Company
Bracknell A (Wyoming) LLC Wyoming 100% of the outstanding common shares are held by
Bracknell B (Wyoming) LLC and 100% of the preferred
shares are held by 3041768 Nova Scotia Company
138
- 4 -
III. ADDITIONAL SUBSIDIARIES WHICH ARE NOT RESTRICTED SUBSIDIARIES
SUBSIDIARY JURISDICTION SHARE OWNERSHIP
---------- ------------ ---------------
1341996 Ontario Inc. Ontario 100% of the outstanding share capital is owned
by Bracknell Corporation
1357248 Ontario Inc. Ontario 100% of the outstanding share capital is owned
by Bracknell Corporation
1016968 Ontario Inc. Ontario 100% of the outstanding share capital is owned
by Bracknell Corporation
ICS Automation Inc. Delaware 100% of the outstanding share capital is owned
by The State Group Limited
AOC Canada Ltd. Newfoundland 50% of the outstanding share capital is owned
by Bracknell Corporation
AOC ▇▇▇▇▇ & Root Canada Ltd. Newfoundland 60% of the outstanding share capital is owned
by AOC Canada Ltd.
Les Services de Gestion Clientech Canada 100% of the outstanding share capital is owned
Inc./Clientech Management Services by Bracknell Corporation
Inc.
▇▇▇▇▇▇-State Atlantic Ltd. Newfoundland 100% of the outstanding share capital is owned
by Bracknell Corporation
IV. Partnerships
Subsidiary Jurisdiction Share Ownership
---------- ------------ ---------------
Bracknell Limited Partnership Nevada 1406883 Ontario Limited (General Partner and
0.1% limited partner), The State Group Limited
(79.9% limited partner), The State Services
Group Limited (15% limited partner), Highlight
Construction Ltd. (5% limited partner)
139
SCHEDULE 7.01(Q)
BURDENSOME AGREEMENTS
None
140
SCHEDULE 7.01(R)
LITIGATION
See attached Summary of Pending Litigation.
141
SCHEDULE 7.01(S)
ENVIRONMENTAL MATTERS
None
142
SCHEDULE 7.01(T)
PENSION PLANS
BRACKNELL CORPORATION
Group Insurance Plan under Great West Life Policy #151157
THE STATE GROUP LIMITED AND SUBSIDIARIES
Manufacturer's Life Policy GN8130008
Long Term Disability Provident Life & Accident Insurance Policy 190759
Humana Employers U.S. Health and Dental Policy #5127224
Group Insurance Plan under Great West Life Policy #151277
Manulife Financial Policy 54438 401K Plan
UNUM Life Insurance Long Term Disability and AD&D
The State Group Limited makes employer contributions to medical and pension
benefits for hourly workers under multi-employer pension and benefit plans
administered through trade unions as per the collective agreements.
NATIONWIDE ELECTRIC, INC.
▇▇▇▇▇▇▇ Electric Co.
Profit Sharing Plan
Money Purchase Plan
Multi-Employer Defined Benefit Plan (union)
▇▇▇▇▇▇▇-▇▇▇▇▇ Company
401(k) Plan
Profit Sharing Plan
Union Administered Retirement Plan
▇▇▇▇▇▇▇▇▇ Electric Co.
HB Holding Co. Profit Sharing Plan
▇▇▇▇ Electric, Inc.
Profit Sharing
Union Administered Retirement Plan
SYLVAN INDUSTRIAL PIPING, INC. AND SUBSIDIARIES
Money Purchase Pension Trust
Profit Sharing Trust
SUNBELT INTEGRATED TRADE SERVICES, INC. AND ITS SUBSIDIARIES
▇▇▇▇▇▇ Industries, LLC
Defined Benefit Pension Plan and Trust
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, Inc.
Profit Sharing Plan and Trust
Quality Mechanical Contractors, Inc.
Quality Air Conditioning, Inc. Salary Reduction Plan
Flexible Benefits Plan
143
SCHEDULE 7.01(U)
MATERIAL AGREEMENTS
1. Agreement between Gold ▇▇▇▇▇▇, A Joint Venture and ▇▇▇▇ Electric, Inc.
dated October 12, 1998 as amended, relating to electrical services for
the San Diego, CA Convention Centre (US $11,800,000).
2. Agreement between Kiewit Pacific Co. and ▇▇▇▇ Electric, Inc. dated
October 6, 1998 as amended, relating to the South Bay Water Reclamation
(US $7,400,000).
3. Agreement between ▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇, Inc. and The State Group
Limited, dated March 19, 1999, relating to electrical services for the
Northwest Airlines Terminal Infield Project (C$72,750,000).
4. Agreement between NKK Steel Engineering, Inc. and The State Group
International Limited, dated September 24, 1999, relating to mechanical
installation, piping and electrical work for No. 1 Continuous
Galvanizing Line Plan in Detroit (C$46,350,000).
5. Standing Purchase Order Agreement between Ford Motor Company of Canada,
Limited and The State Group Limited, relating to ongoing construction
Commodity Management Blanket Order -- from June 22, 1999 through June
22, 2002 (C$35,800,000).
6. Agreement between ▇.▇. ▇▇▇▇▇▇▇ Construction, Inc. and Quality
Mechanical Contractors, Inc. dated November 16, 1999 relating to the
construction of the Sun Coast Hotel & Casino (US$9,231,100).
7. Agreement between ▇▇▇▇▇▇▇▇ Contractors and Quality Mechanical
Contractors, Inc., dated November 23, 1998, relating to the
construction of St. Rose Dominican Hospital (US$6,915,500).
8. Agreement between A.F. Construction Company and Quality Mechanical
Contractors, Inc. dated December 7, 1999, relating to the construction
of the ▇▇▇▇▇ County Regional Justice Center (US$16,709,000).
9. Agreement between Holder Construction Company and ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇,
Inc., dated December 7, 1998, relating to the construction of the State
Farm Corporate South Addition (US$28,830,547).
10. Agreement between Holder Construction Company and ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇,
Inc., dated September 7, 1999, relating to the E*Trade Technical
Operations Center (US$21,120,181).
11. Agreement between Atlanta Arena Contractors and ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, Inc.,
dated April 18, 1998, relating to the Atlanta Arena Facility
(US$9,084,500).
12. Agreement between ▇▇▇▇▇▇▇-▇▇▇▇▇▇/▇.▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇,
Inc. dated October 15, 1997, relating to the Center for Disease Control
(US$49,322,735).
13. Agreement between The State Group Limited and Process Systems Inc.
(PSI) dated May, 2000 to install heating and cooling units and
associated piping and electrical provide services at the Ford Motor
Company plant in Oakville, Ontario (US$5,600,000) There is not one PO
but several sectionalized PO's
14. Agreement between The State Group Limited and JNE Engineering Inc.
commencing September 1998 to install floor standing equipment including
144
- 2 -
millwrighting, piping and electrical services at the Stelco steel plant
in Hamilton, Ontario. (CDN$6,900,000)
15. Agreement between The State Group Limited and Dofasco to construct a
galvanizing line. (CDN$43,000,000) This job is 99% complete.
16. Agreement between The State Group Limited and Vanbots Construction
Corporation dated May, 1998 to provide electrical and communication
installations at the Province of Ontario's Maplehurst Correctional
Facility. (CDN$10,600,000)
17. Agreement between The State Group Limited and BFC Buildings, a Division
of BFC Construction Group Inc., dated April 1, 1999 to provide
electrical services for Call Net's new building construction. (CDN$8.3
million)
18. Agreement between The State Group Limited and Urbacon Limited dated
January 1, 2000 to provide power distribution, electrical and fire
alarm installation services on a data centre for PSINet at ▇▇ ▇▇▇▇▇
▇▇▇▇▇. (CDN$5,400,000)
19. Agreement between ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ and ▇▇▇▇▇▇-▇▇▇▇ and to provide
electrical services for a data centre. (US$30,000,000)
20. Agreement between ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ and ▇▇▇▇▇▇ to provide electrical
services for an office building. (US$16,000,000)
21. Agreement between ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇-▇▇▇▇▇▇ Contracting
Company to provide electrical services at an R&D center. (US$8,500,000)
22. Agreement between ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇-▇▇▇▇▇▇ Contracting
Company dated July 16, 1997 to provide electrical services to the
Center for Disease Control construction of an R&D laboratory.
(US$6,500,000)
23. Agreement between ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ and Holder Construction Company
dated February 15, 2000 to provide electrical services for the
construction of a data center. (US$9,800,000)
24. Agreement between ▇▇▇▇▇▇▇ Electric, Inc. and White Construction Company
dated November 23, 1999 to provide electrical services to construct a
data center for Dell.
25. Agreement between ▇▇▇▇▇▇▇ Electric, Inc. and the Austin (Texas)
Independent School District to provide electrical power and service
upgrades for computers in 102 schools within the Austin, Texas School
district.
26. Agreement between ▇▇▇▇▇▇▇ ▇▇▇▇▇ Company and Nova Corporation dated
March 16, 2000 to provide electrical services for the construction of a
new building at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ (US$5,885,779).
This job is 90% complete.
27. Agreement between ▇▇▇▇▇▇▇ ▇▇▇▇▇ Company and Beers Construction Company
dated August 17, 1999 to provide electrical services to Southern
Energy, Inc. at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
(US$6,080,434) This job is in excess of 99% complete.
28. Agreement between Sylvan Industrial Piping, Inc. and ▇▇▇▇▇▇▇ Building
Company Inc. dated September 7, 1999 to provide mechanical services at
the General Motors Milford, Michigan plant.
145
- 3 -
29. Agreement between ▇▇▇▇▇▇▇▇▇ Electric Co., Inc. and ▇.▇. ▇▇▇▇▇▇▇
Construction Co. Inc. to provide electrical services at ▇▇▇▇▇▇▇ ▇▇▇▇▇
Indiana (US$5,205,590) This contract is 92% complete.
30. Agreement between ▇▇▇▇▇▇▇ Electric Co. and ▇▇▇▇▇▇▇ Construction dated
August 6, 1999 to provide electrical installation and services for
Division 16 (US$6,502,924)
31. Agreement between ▇▇▇▇▇▇▇ Electric Co. and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ dated August
6, 1999 to provide electrical installation and services for ADC
Telecommunications (US$8,197,242)
32. Agreement between ▇▇▇▇▇▇▇ Electric Co. and ▇▇▇▇▇▇▇ Construction dated
August 6, 1999 to provide electrical installation and services for St.
John's Hospital, Minneapolis, Minnesota (US$5,714,748)
33. Agreement between Bracknell Facilities Services Inc. and ▇▇▇▇▇ Oil to
provide facilities services management (US$50,000,000).
146
SCHEDULE 7.01(V)
LABOUR MATTERS
The State Group Limited and Nationwide Electric, Inc. are subject to the
following collective agreements through participation in industry management
associations:
1. Boilermaker Contractors-Association Alberta Memorandum of Agreement,
effective May 1, 1999 to April 30, 2001.
2. Collective Agreement between Electrical Contractors Association of
Alberta and Local Union 254 of the International Brotherhood of
Electrical Workers and Local Union 424 of the International Brotherhood
of Electrical Workers, effective September 2, 1997.
3. 1998 Collective Agreement between Electrical Contractors Trade Division
C.L.R.A. of Manitoba and Local Union 2085 of the International
Brotherhood of Electrical Workers effective May 1, 1998 to April 30,
2001.
4. Collective Agreement between Ontario Erectors association, Incorporated
and Ontario Erectors Association and International Association of
Bridge, Structural, Ornamental and Reinforcing Iron Workers and Iron
Workers District Council of Ontario, May 1, 1998 to April 30, 2001.
5. Collective Agreement between Electrical Contractors Association of New
Brunswick Inc. and Local Union No. 502 of the International Brotherhood
of Electrical Workers, effective March 15, 1999, and expiring December
31, 2001.
6. Collective Agreement between St. ▇▇▇▇ Construction Association and the
United Brotherhood of Carpenters and Joiners Local #1386. 7. Millwright
Agreement, Province of Nova Scotia, 1998 - 2001, between Construction
Management Bureau Limited and the Millwrights and Machine Erectors
Local Union 1178.
8. Provincial Electrical Agreement between the Unionized Employers in the
Electrical Trade Division of the Construction Industry, and Local
Unions 529 and 2038 of the International Brotherhood of Electrical
Workers, effective May, 1998 and expired April 30, 2001 (Saskatchewan)
(to be replaced).
9. Ontario Provincial Collective Agreement between the Mechanical
Contractors Association of Ontario, and the Ontario Pipe Traders
council, effective May 15, 1998 to April 30, 2001.
10. Collective Agreements between Construction Labour Relations Association
of B.C. and Local 170 of the United Association of Journeymen and
Apprentices of the Plumbing and Pipe Fitting Industry, 1994 - 1998.
11. Articles of Agreement between the International Brotherhood of
Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers and
the Boilermaker Contractors' Association, effective August 23, 1998 to
June 30, 2001.
12. Construction Collective Agreement (1998) between the Ontario
Refrigeration and Air Conditioning Association, and Local 787 of the
United Association of Journey Persons and Apprentices of the Plumbing
and Pipe Fitting Industry of the United States and Canada.
147
- 2 -
13. Collective Agreement between the Association of Millwrighting
Contractors of Ontario Inc. and the Millwright District Council of
Ontario, United Brotherhood of Carpenters and Joiners of America,
effective September 18, 1995 to April 30, 1998 (expired - to be
replaced).
14. Principal Agreements between the Electrical Trade Bargaining Agency of
the Electrical Contractors Association of Ontario and the International
Brotherhood of Electrical Workers and the IBEW Construction council of
Ontario, expiry date of April 30, 2001.
15. Collective Agreement between the Association of Millwrighting
Contractors of Ontario, Inc. and the Millwright District council of
Ontario, United Brotherhood of Carpenters and Joiners of America,
effective August 10, 1998 to April 30, 2001.
16. Cape Breton Industrial Projects Collective Agreement 1996 - 1999
between construction Management Bureau Limited and Various Building
Trade Unions, effective July 1, 1996 and expired June 30, 1999 (to be
replaced).
17. Cape Breton Commercial Projects Collective Agreement 1996 - 1999
between construction Management Bureau Limited and Various Building
Trade Unions, effective July 1, 1996 and expired June 30, 1999 (to be
replaced).
18. Principal Agreement between the Electrical Contractors Association of
the City of Chicago and Local Union No. 134 International Brotherhood
of Electrical Workers dated August 25, 1991 as amended May 31, 1999.
19. Agreement between Atlanta Chapter NECA and IBEW Local 613, effective
until 8-31-00 (▇▇▇▇▇▇▇-▇▇▇▇▇ Company).
20. Working Agreement between Evansville Division, southern Indiana Chapter
NECA and ▇▇▇▇▇▇▇▇▇ Electric Co. Inc.).
21. Inside Agreement between Arkansas Chapter NECA and IBEW Local 295,
effective until 9-1-99 (▇▇▇▇▇▇▇ Electric Co.).
22. Inside construction South Florida Chapter of NECA and IBEW Local 349,
effective until terminated (▇▇▇▇▇▇▇ Electric Co.).
23. Agreement between Northern Illinois Chapter of NECA and IBEW Local 354,
effective until 5-31-99 (▇▇▇▇▇▇▇ Electric Co.).
24. Inside Construction and maintenance Agreement between Minneapolis
Chapter of NECA and IBEW Local 292, effective until 4-30-00 (▇▇▇▇▇▇▇
Electric Co.).
25. Inside Construction Agreement between South Central Minnesota Chapter
of NECA and IBEW Local 343, effective until 5-31-99 (▇▇▇▇▇▇▇ Electric
Co.).
26. Agreement between S.P.A.C.E. and IBEW Local 100, 242, 292, 294, 343,
426 and 1426, effective until terminated (▇▇▇▇▇▇▇ Electric Co.)
27. Agreement between Associated General Contractors of Minnesota of
International union of Operating Engineers, Local 49, effective until
terminated (▇▇▇▇▇▇▇ Electric Co.).
28. Agreement covering Motor Repair Shops between Minneapolis Chapter NECA
and IBEW Local 292, effective until terminated (▇▇▇▇▇▇▇ Electric Co.).
29. Inside Construction and Maintenance Agreement between St. ▇▇▇▇ Chapter
NECA and IBEW Local 110, effective until 4-30-00 (▇▇▇▇▇▇▇ Electric Co.)
148
- 3 -
30. Agreement between Metropolitan Detroit Plumbing & Mechanical
Contractors Association, Inc. and Plumbing, Heating and Cooling
Contractors Association of South Eastern Michigan, Inc. and Journeyman
Plumbers Local No. 98 of Detroit, Michigan, effective June 1, 1998
through May 31, 2001.
31. Agreement between Metropolitan Detroit Plumbing & Mechanical
Contractors Association, Inc. and Journeyman Pipefitters,
Refrigeration, and Air Conditioning Service Local 636 of Detroit,
Michigan, effective June 1, 1998 through May 31, 2001.
32. Working Agreement between Plumbers and Pipefitters UA Local 572 and The
Master Plumbing, Heating, Piping and Air Conditioning Contractors of
Nashville and Vicinity, effective May 1, 1998 through April 30, 2001.
33. Collective Bargaining Agreement between Local Union No. 9 of the United
Association of Journeyman and Apprentices of the Plumbing and
Pipefitting Industry of the United States and Canada, AFL-CIO and
Mechanical Contractors Association of New Jersey, Inc. effective July
1, 1998 to June 30, 2001.
34. Agreement between Steamfitters, Pipefitters and Apprentices Local Union
No. 475 of Essex County, Union County, Portions of Hunterdon, ▇▇▇▇▇▇,
Middlesey, ▇▇▇▇▇▇, Somerset and ▇▇▇▇▇▇ Counties and all of their
Territories in New Jersey and the Mechanical Contractors Association of
New Jersey, effective May 1, 1999 to April 30, 2002.
35. Agreement between Local Union No. 274 of the United Association of
Journeymen and Apprentices of the United States and Canada, AFL-CIO and
Mechanical Contractors Association of New Jersey, effective May 1, 1998
to April 30, 2001.
36. Union Agreement between Sheet Metal Workers' International Association
Local Union No. 88 and SMACNA of Southern Nevada, Inc. effective July
1, 1996 to June 30, 2001.
37. Master Labour Agreement between Mechanical Contractors Association,
Inc. and United Association of Journeyman and Apprentices of the
Plumbing and Pipe Fitting Industry of the United States and Canada,
Local ▇▇▇▇▇ ▇▇. ▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ effective June 1, 1997 to June
1, 2001.
38. Agreement between Austin Division of the Southeast Texas Chapter of
National Electrical Contractors Association, Inc. and Local Union No.
520 of the International Brotherhood of Electrical Workers, Austin,
Texas dated June 4, 1997.
39. Inside ▇▇▇▇▇▇▇ Agreement between Local Union No. 26, International
Brotherhood of Electrical Workers and the Washington, D.C. Chapter,
National Electrical Contractors Association effective June 1, 1997 -
May 31, 2000.
40. Inside Construction Agreement between Atlantic Coast Chapter, National
Electrical Contractors Association and Local Union 553, International
Brotherhood of Electrical Workers effective December, 1997.
149
- 4 -
41. Working Agreement between Plumbers and Pipefitters U.A. Local 572 and
The Master Plumbing, Heating, Piping and Air Conditioning contracts of
Nashville and vicinity, effective May 1, 1998 through April 30, 2001.
42. Collective Bargaining Agreement between Local Union No.9 of the United
Association of Journeymen and Apprentices of the Plumbing and
Pipefitting Industry of the United States of Canada, AFL-CIO and
Mechanical Contractors Association of New Jersey, Inc., effective July
1, 1998 to June 30, 2001.
43. Agreement between Steamfitters, Pipefitters and Apprentices Local Union
No. 475 of Essex County, Union County, portions of Hunterdon, ▇▇▇▇▇▇,
Middlesex, ▇▇▇▇▇▇, Somerset and ▇▇▇▇▇▇ Counties and all of their
territories in New Jersey and the Mechanical Contractors Association of
New Jersey, effective May 1, 1999 to April 30, 2002.
44. Agreement between Local Union No. 274 of the United Association of
Journeymen and Apprentices of the United States and Canada, AFL-CIO and
Mechanical Contractors Association of New Jersey, effective May 1, 1998
to April 30, 2001.
45. Millwright & Machine Erectors Construction Agreement dated January 1,
2000.
46. Ironworkers Agreement (Structural & Miscellaneous Steel) between The
State Group Limited and the International Association of Bridge,
Structural, Ornamental and Reinforcing Ironworkers Local Union No.
842, effective May 1, 2000 to April 30, 2003.
47. Industrial Collective Agreement between the United Brotherhood of
Carpenters and Joiners of America, Local 1386 and the Moncton Northeast
Construction Association, Inc. (The State Group Limited).
48. Collective Agreement between the Electrical Contractors Association of
New Brunswick, Inc. and Local Union No. 502 of the International
Brotherhood of Electrical Workers, effective March 15, 1999 to December
31, 2001 (The State Group Limited).
49. Collective Agreement between the Electrical Contractors Association of
New Brunswick, Inc. and Local Union 2166 of the International
Brotherhood of Electrical Workers, effective February 21, 2000 to June
30, 2002 (The State Group Limited).
50. Collective Agreement between the Saint ▇▇▇▇ Mechanical Contractors
Employers Association and the U.A. Plumbers & Pipefitters Union Local
No. 213, effective January 18, 1999 to June 30, 2001.
51. Electrical Agreement between The Construction Management Bureau Limited
(Nova Scotia) and The International Brotherhood of Electrical Workers
Local Union No. 625, effective November 9, 1998 to April 30, 2001.
52. Mechanical Industrial Collective Agreement between the Construction
Management Bureau Limited (Nova Scotia) and Antigonish Local Union No.
244, United Association of Journeymen and Apprentices of the Plumbing,
Steam-Fitting and Pipefitting Industry of the United States and Canada,
effective November 30, 1998 to April 30, 2001.
150
- 5 -
53. Mechanical Collective Agreement Local 56 between Construction
Management Bureau Limited and the United Association of Journeymen and
Apprentices of the Plumbing, Steamfitting and Pipefitting Industry of
the United States and Canada, Local Union 56, effective October 19,
1998 to April 30, 2001.
54. Ironworker Agreement between Construction Management Bureau Limited and
International Association of Bridge, Structural and Ornamental
Ironworkers, Local Union 752, effective March 22, 1999 to April 30,
2001.
55. Millwright Agreement between Construction Management Bureau Limited and
The Millwrights and Machine Erectors, Local Union 1178, effective July
1, 1998 to April 30, 2001.
56. Cape Breton Commercial Products Collective Agreement between
Construction Management Bureau Limited and various Trade Unions,
effective July 16, 1999 to June 30, 2002.
57. Cape Breton Industrial Projects Collective Agreement between
Construction Management Bureau, Limited and The Cape Breton Island
Building & Construction Trades Counsel, effective July 16, 1999 to June
30, 2002.
151
SCHEDULE 7.01(Y)
CORPORATE STRUCTURE
The following is a list of the beneficial shareholders of Bracknell Corporation,
the number of common and preferred shares owned with the percentage of common or
preferred shares in parentheses:
1. ▇▇▇▇▇▇▇ Capital Management: 2,546,140 common shares (6.3%).
2. Lincluden Management Ltd.: 2,814,002 common shares (7.0%).
3. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & North Investment Ltd.: 2,504,000 common shares (6.2%).
4. Investors Group Inc.: 2,572,700 common shares (6.4%)
152
SCHEDULE 8
LIST OF SECURITY DOCUMENTS
BRACKNELL
1. Amended and Restated Guarantee given by Bracknell, State, SSG, BTS,
HAT, HTO and HAS in favour of the Administrative Agent.
2. Amended and Restated General Security Agreement between Bracknell,
State, SSG, BTS, HAT, HTO and HAS and the Administrative Agent.
3. Amended and Restated Securities Pledge Agreement between Bracknell and
the Administrative Agent.
THE STATE GROUP LIMITED ("STATE")
1. Amended and Restated Guarantee given by Bracknell, State, SSG, BTS,
HAT, HTO and HAS in favour of the Administrative Agent.
2. Amended and Restated General Security Agreement between Bracknell,
State, SSG, BTS, HAT, HTO and HAS and the Administrative Agent.
3. Amended and Restated Securities Pledge Agreement between Bracknell,
State, SSG, BTS, HAT, HTO and HAS and the Administrative Agent.
4. Pledge of Partnership Interest in Bracknell LP in favour of the
Administrative Agent.
THE STATE SERVICES GROUP LIMITED ("SSG")
1. Amended and Restated Guarantee given by Bracknell, State, SSG, BTS,
HAT, HTO and HAS in favour of the Administrative Agent.
2. Amended and Restated General Security Agreement between Bracknell,
State, SSG, BTS, HAT, HTO and HAS and the Administrative Agent.
3. Pledge of Partnership Interest in Bracknell LP in favour of the
Administrative Agent.
NATIONWIDE AND THE U.S. SUBSIDIARIES
1. Amended and Restated Guarantee and Collateral Agreement among
Nationwide, PEH, PEC, SSL, EEHM, EEHD, EES, ASC, HEC, NEI, NE, NELLC,
SGIL, SGUSA, PEI and PECC in favour of the Administrative Agent.
153
- 2 -
354709 ALBERTA INC. ("354709")
1. Amended and Restated Guarantee given by 354709 in favour of the
Administrative Agent.
2. Amended and Restated General Security Agreement between 354709 and the
Administrative Agent.
334108 ALBERTA INC. ("334108")
1. Amended and Restated Guarantee given by 334108 in favour of the
Administrative Agent.
2. Amended and Restated General Security Agreement between 334108 and the
Administrative Agent.
BRACKNELL TELECOMMUNICATION SERVICES INC. ("BTS")
1. Amended and Restated Guarantee given by Bracknell, State, SSG, BTS,
HAT, HTO and HAS in favour of the Administrative Agent.
2. Amended and Restated Security Agreement between Bracknell, State, SSG,
BTS, HAT, HTO and HAS and the Administrative Agent.
3. Amended and Restated Securities Pledge Agreement between Bracknell,
State, SSG, BTS, HAT, HTO and HAS and the Administrative Agent.
VISTA COMMUNICATION TECHNOLOGIES LTD. ("VISTA")
1. Amended and Restated Guarantee given by Vista in favour of the
Administrative Agent.
2. Amended and Restated Security Agreement between Vista and the
Administrative Agent.
HIGHLIGHT ANTENNA & TOWER SERVICES LTD. ("HAT")
1. Amended and Restated Guarantee given by Bracknell, State, SSG, BTS,
HAT, HTO and HAS in favour of the Administrative Agent.
2. Amended and Restated Security Agreement between Bracknell, State, SSG,
BTS, HAT, HTO and HAS and the Administrative Agent.
HIGHLIGHT TOWERS ONTARIO LTD. ("HTO")
1. Amended and Restated Guarantee given by Bracknell, State, SSG, BTS,
HAT, HTO and HAS in favour of the Administrative Agent.
154
- 3 -
2. Amended and Restated Security Agreement between Bracknell, State, SSG,
BTS, HAT, HTO and HAS and the Administrative Agent.
HIGHLIGHT ANTENNA SERVICES LTD. ("HAS")
1. Amended and Restated Guarantee given by Bracknell, State, SSG, BTS,
HAT, HTO and HAS in favour of the Administrative Agent.
2. Amended and Restated Security Agreement between Bracknell, State, SSG,
BTS, HAT, HTO and HAS and the Administrative Agent.
HIGHLIGHT CONSTRUCTION LTD. ("HCL")
1. Amended and Restated Guarantee given by HCL in favour of the
Administrative Agent.
2. Amended and Restated Security Agreement between HCL and the
Administrative Agent.
3. Pledge of Partnership Interest of Bracknell LP in favour of the
Administrative Agent.
1406883 ONTARIO LIMITED ("1406883")
1. Guarantee given by 1406883 in favour of the Administrative Agent.
2. Security Agreement between 1406883 and the Administrative Agent.
3. Pledge of Partnership Interest in Bracknell LP in favour of the
Administrative Agent.
4. Collateral Covenant Agreement given by 1406883 in favour of the
Administrative Agent.
3041768 NOVA SCOTIA COMPANY ("3041768")
1. Guarantee given by 3041768 in favour of the Administrative Agent.
2. Security Agreement between 3041768 and the Administrative Agent.
3. Securities Pledge Agreement given by 3041768 in favour of the
Administrative Agent.
4. Collateral Covenant Agreement given by 3041768 in favour of the
Administrative Agent.
155
- 4 -
BRACKNELL A (WYOMING) LLC ("BRACKNELL A")
1. Guarantee and Collateral Agreement among Bracknell LP, Bracknell A and
Bracknell B.
2. Assignment of Security (re: Security Agreement given by Nationwide
Subsidiaries) given in favour of the Administrative Agent.
3. Collateral Covenant Agreement given by Bracknell A in favour of the
Administrative Agent.
BRACKNELL B (WYOMING) LLC ("BRACKNELL B")
1. Guarantee and Collateral Agreement among Bracknell LP, Bracknell A and
Bracknell B.
2. Collateral Covenant Agreement given by Bracknell B in favour of the
Administrative Agent.
156
SCHEDULE 8.01(s)
INACTIVE SUBSIDIARIES
1016968 Ontario Inc.
816591 Ontario Inc.
Tritech Energy Corporation
Technical Environmental Services (Dartmouth) Limited
1184123 Ontario Inc.
ICS Automation Inc.
▇▇▇▇▇▇ - State Atlantic Ltd.
157
SCHEDULE 8.02(A)
PERMITTED DEBT
1. Irrevocable Standby Letter of Credit No. P136055TO7512 dated March 8,
1999 in the amount of $946,230.51 issued by the Royal Bank of Canada in
favour of ▇▇▇▇▇▇▇ Ontario Inc., on the application of Bracknell
Corporation.
2. Irrevocable Standby Letter of Credit No. P136070TO7512 dated March 8,
1999 in the amount of $1,000,000 issued by the Royal Bank of Canada in
favour of ▇▇▇▇▇▇▇ Ontario Inc., on application of Bracknell
Corporation.
3. Indemnity Agreement dated May 13, 1999 between the Royal Bank of Canada
and Bracknell Corporation in which Bracknell Corporation agrees to pay
50% of a $5,300,000 Letter of Guarantee (no. M10583) to Profac
Facilities Management Services Inc.
4. Indemnity Agreement dated May 13, 1999 between the Royal Bank of Canada
and Bracknell Corporation in which Bracknell Corporation will pay 50%
of a $9,100,000 Letter of Guarantee (No. M105834) to Profac Facilities
Management Services Inc.
5. Indemnity Agreement dated May 12, 1996 between ProFac Management Group
Limited, Bracknell Corporation, SNC-Lavalin Inc. and London Guarantee
Insurance
6. Indemnity Agreement dated September 9, 1992 between Bracknell
Corporation and Wellington Insurance Company
7. Indemnity Agreement dated September 19, 1994 between The State Group
Limited and/or TCS Total Construction Solutions Inc., Bracknell
Corporation and Wellington Insurance Company
8. Indemnity Agreement dated February 3, 2000 between the St. ▇▇▇▇ Surety
Group of Companies, Bracknell Corporation and Nationwide Electric, Inc.
9. Promissory Note issued in connection with Sunbelt Integrated Trade
Services, Inc.'s unit offering, having an aggregate principal amount of
US$1,150,000.
10. Promissory Notes issued in connection with Sunbelt Integrated Trade
Services, Inc.'s Tranche A Offering, having an aggregate principal
amount of US$850,000.
158
SCHEDULE 8.02(B)
PERMITTED LIENS
1. Liens in favour of the Royal Bank of Canada perfected by the
registration made under the Personal Property Security Act (Alberta)
(the "Alberta PPSA") by the Royal Bank of Canada as a secured party
against Bracknell Corporation as debtor on September 9, 1996 as
registration number 96090909464, against collateral described as all
accounts, chattel paper and instruments as defined in the Alberta PPSA,
and all records thereof owing to Bracknell Corporation by Cablecom
International Network Cabling Inc., and proceeds of goods, inventory,
chattel paper, securities, documents of title, instruments, money,
intangibles and accounts (all as defined in the Alberta PPSA and
insurance proceeds.
2. Liens in favour of the Royal Bank of Canada perfected by the
registration made under the Alberta PPSA by the Royal Bank of Canada as
a secured party against Cablecom International Network Cabling Inc. as
debtor on September 9, 1996 as registration number 96090909506, against
collateral described as all accounts, chattel paper and instruments as
defined in the Alberta PPSA, and all records thereof, and proceeds of
goods, inventory, chattel paper, securities, documents of title,
instruments, money, intangibles and accounts (all as defined in the
Alberta PPSA) and insurance proceeds.
3. Lien in favour of Comerica Bank perfected by the registration made
under the Michigan UCC by Comerica Bank as a secured party against
Sylvan Industrial Piping, Inc. as debtor on July 29, 1996, as
registration nos. D121969 and D121970.
4. Lien in favour of The Frost National Bank perfected by a registration
made under the Texas UCC by The Frost National Bank as secured party
against ▇▇▇▇▇▇ Industries LLC as debtor on February 3, 1999 as
registration number 99-023627.
5. Lien in favour of Cattlemens State Bank, assignee of Victoria Bank &
Trust, Norwest Bank Texas, South Central and Norwest Bank Texas, N.A.
perfected by a registration made under the Texas UCC by Cattlemens
State Bank as secured party against ▇▇▇▇▇▇▇ Electric Company, Inc. as
debtor on July 29, 1987 as registration number 87 00200730.
6. Lien in favour of Norwest Bank Texas, N.A. perfected by a registration
made under the Texas UCC by Norwest Bank Texas, N.A. as secured party
against ▇▇▇▇▇▇▇ Electric Company, Inc. as debtor on July 28, 1998 as
registration number 98 00153136.
7. Lien in favour of Bank One, Kentucky, NA perfected by a registration
made under Kentucky-Jefferson County UCC by Bank One, Kentucky, NA as
secured party against ▇▇▇▇▇▇▇▇▇ Electric Co. Inc. as debtor on April 8,
1999 as registration number 99-02589.
8. Lien in favour of Liberty National Bank and Trust Company of Kentucky
perfected by a registration made under Kentucky-Jefferson County UCC by
Liberty National Bank and Trust Company of Kentucky as secured party
159
- 2 -
against ▇▇▇▇▇▇▇▇▇ Electric Co., Inc. as debtor on September 30, 1994 as
registration number 94-08745.
9. Security interest in favour of ▇▇▇▇▇ Road LLC pursuant to a lease dated
January 1, 1997 between ▇▇▇▇▇ Road LLC, as landlord, and ▇▇▇▇▇▇
Industries LLC, as tenant, wherein the Landlord is granted a security
interest in all equipment, inventory, fixtures, consumer goods, goods
and any and all personal property of any kind or character which may be
placed in the Premises and also upon all proceeds of any insurance
which may accrue to the Tenant by reason of damage to or destruction of
any such property.
10. Lien in favour of First Security Bank of Nevada perfected by a
registration made under Nevada UCC by First Security Bank of Nevada as
secured party against Sunbelt Integrated Trade Services, Inc. as debtor
on July 30, 1999 as registration number 9911822.
11. Lien in favour of First Security Bank of Nevada perfected by a
registration made under Florida UCC by First Security Bank of Nevada as
secured party against Sunbelt Integrated Trade Services, Inc. as debtor
on August 17, 1999 as registration number 188883.
12. Lien in favour of First Security Bank of Nevada perfected by a
registration made under Delaware UCC by First Security Bank of Nevada
as secured party against Sunbelt Integrated Trade Services, Inc. as
debtor on July 30, 1999 as registration number 199939360.
13. Lien in favour of First Security Bank of Nevada perfected by a
registration made under Nevada-▇▇▇▇▇ County UCC by First Security Bank
of Nevada as secured party against Sunbelt Integrated Trade Services,
Inc. as debtor on August 2, 1999 as registration number 990802-01017.
14. Lien in favour of First Security Bank of Nevada perfected by a
registration made under Nevada UCC by First Security Bank of Nevada as
secured party against Quality Mechanical Contractors, Inc. as debtor on
July 30, 1999 as registration number 9911821.
15. Lien in favour of First Security Bank of Nevada perfected by a
registration made under Nevada-▇▇▇▇▇ County UCC by First Security Bank
of Nevada as secured party against Quality Mechanical Contractors, Inc.
as debtor on August 2, 1999 as registration number 990802-01018.
16. Garageman's Lien registered in favour of Kal Tire A Corporate
Partnership on January 21, 2000 as number 00012101804 with respect to a
1996 Dodge in the amount of $908.00.
17. Garageman's Lien registered in favour of Kal Tire A Corporate
Partnership on February 28, 2000 as number 00022802243 with respect to
a 1996 Ford in the amount of $1,074.89.
18. Garageman's Lien registered in favour of Kal Tire A Corporate
Partnership on March 13, 2000 as number 00031306228 with respect to a
1997 Dodge in the amount of $1,818.66.
160
SCHEDULE 9
ASSIGNMENT AND ASSUMPTION AGREEMENT
Assignment and assumption agreement dated as of o between [NAME OF
ASSIGNOR] the ("ASSIGNOR"), a Lender under the Credit Agreement (as hereinafter
defined) and [NAME OF ASSIGNEE] (the "ASSIGNEE").
WHEREAS the Administrative Agent and such other Lenders as may from
time to time be parties to the Credit Agreement have agreed to make certain
credit facilities available to Bracknell Corporation, Nationwide Electric, Inc.
and The State Group Limited (the "BORROWERS") upon the terms and conditions
contained in a second amended and restated credit agreement dated as of July 21,
2000 among the Borrowers, Royal Bank of Canada, as Administrative Agent and the
financial institutions parties thereto as lenders (the "LENDERS") (such credit
agreement as it may at any time or from time to time be amended, supplemented,
restated or replaced, the "CREDIT AGREEMENT");
AND WHEREAS the Assignor has agreed to assign and sell to the Assignee
all of its right, title and interest in and to [describe the portion of the
Lender's [Canadian] [U.S.] [Acquisition] [OPERATING] [TERM] [SWINGLINE]
COMMITMENTS AND ACCOMMODATIONS OUTSTANDING BEING ASSIGNED], subject to the
conditions set forth in Section 11.08(3) of the Credit Agreement, and all right,
title and interest of the Assignor in and to the Credit Documents to the extent
relating thereto (collectively, the "ASSIGNED CREDIT FACILITIES"), and the
Assignee has agreed to accept and purchase the Assigned Credit Facilities and
assume all liabilities and obligations of the Assignor in respect of the
Assigned Credit Facilities (collectively, such assignment, sale, purchase and
assumption is hereinafter referred to as the "ASSIGNMENT");
AND WHEREAS all necessary consents, if any, to the Assignment have been
obtained;
AND WHEREAS the Assignor and the Assignee are required to enter into an
agreement pursuant to Section 11.08(5) of the Credit Agreement, and the
Borrowers and the Administrative Agent have agreed to acknowledge the
Assignment;
NOW THEREFORE, in consideration of the foregoing premises, the sum of
$10.00 in lawful money of Canada now paid by the Assignor and the Assignee to
each other and for other good and valuable consideration, the receipt and
sufficiency of which are acknowledged by each such party, the parties agree as
follows:
161
- 2 -
SECTION 1.01. DEFINITIONS. Terms defined in the Credit Agreement which
appear in this agreement without definition shall have the meanings ascribed to
them in the Credit Agreement.
SECTION 2.01. CONVEYANCE OF INTEREST IN CREDIT FACILITIES. The Assignor
assigns, sells, conveys and transfers to the Assignee all of its undivided
interest in and to the Assigned Credit Facilities as and from this date.
SECTION 3.01. ASSUMPTION. The Assignee accepts and assumes the Assigned
Credit Facilities by payment (i) to the Administrative Agent of the applicable
processing fee in section 11.08(5) of the Credit Agreement, and (ii) to the
Assignor of the amount set forth on Schedule "A" under "Purchase Price" and the
Assignee assumes and agrees to be bound by all of the terms and conditions of
the Credit Agreement and the other Credit Documents as if it were an original
Lender and party to them with a [CANADIAN] [U.S.] [ACQUISITION] [OPERATING]
[TERM] [SWINGLINE] Commitment equal to (where the Assignee is already an
original Lender, the aggregate of the [CANADIAN] [U.S.] [ACQUISITION]
[OPERATING] [TERM] [SWINGLINE] Commitment originally incurred by the Assignee
and) the Commitments included in the Assigned Credit Facilities and acknowledges
and expressly assumes in the name, place and stead of the Assignor all
obligations and liabilities attaching to the Assigned Credit Facilities and
agrees (iii) to perform all of the terms, conditions and agreements on its part
to be performed as a Lender in respect thereof under the Credit Agreement and
the other Credit Documents, and (iv) not to seek recourse against the Assignor
for any breaches by any of the Borrowers of the Credit Documents.
SECTION 4.01. REPRESENTATIONS AND WARRANTIES OF THE ASSIGNOR. The
Assignor represents and warrants to the Assignee that the outstanding principal
amount of the Assigned Credit Facilities as set forth in Schedule "A" remains
outstanding as Accommodations Outstanding under the Credit Facility;
SECTION 4.02. REPRESENTATIONS AND WARRANTIES OF THE ASSIGNEE. (1) The
Assignee represents and warrants to each other party hereto that it has the
capacity and power to enter into this assignment and assumption agreement in
accordance with its terms and to perform its obligations, and all action
required to authorize the execution and delivery of this assignment and
assumption agreement, and the performance of such obligations, has been duly
taken.
(2) Unless this Assignment is being made at a time when an Event of
Default has occurred and is continuing, the Assignee represents and warrants to
each other Party hereto that [IT IS NOT A NON-RESIDENT OF CANADA] or [IT IS A
FOREIGN LENDER].
162
- 3 -
SECTION 5.01. RELEASE BY THE BORROWERS. The assignment and assumption
herein being effective, the Assignor acknowledges the applicability of Section
11.08(5) of the Credit Agreement to the Assignment.
SECTION 6.01. ASSIGNEE'S ACKNOWLEDGMENTS. The Assignee acknowledges and
agrees that (i) it has received a copy of the Credit Agreement and the other
Credit Documents, (ii) it is bound by all of the terms, conditions and covenants
of the Credit Agreement, the other Credit Documents and entitled to the same
rights and benefits thereof and is subject to the same limitations under the
Credit Agreement, the other Credit Documents and the Letter Agreement as it
would have as if it were an original Lender and signatory to the Credit
Agreement with [CANADIAN] [U.S.] [ACQUISITION] [OPERATING] [TERM] [SWINGLINE]
Commitments equal to (where the Assignee is already an original Lender, the
aggregate of the [CANADIAN] [U.S.] [ACQUISITION] [OPERATING] [TERM] [SWINGLINE]
Commitment originally incurred by the Assignee and) the [CANADIAN] [U.S.]
[ACQUISITION] [OPERATING] [TERM] [SWINGLINE] Commitments included in the
Assigned Credit Facilities; and (iii) it has, independently and without reliance
upon the Assignor (other than those representations and warranties contained in
this agreement) and on the basis of such document and information as it deems
appropriate, made its own credit decision regarding this assignment and
assumption agreement. Except for documents referred to in (i) above which the
Assignee has already received, the Assignor shall not have any duty to provide
the Assignee with any credit or other information concerning the affairs,
financial condition or business of any of the Borrowers or other third party.
SECTION 7.01. RECOGNITION AS LENDER. The parties acknowledge and agree
that the Assignee is, by virtue of compliance with the provisions of Section
11.08(5) of the Credit Agreement, as and from this date, a Lender under and as
defined in the Credit Agreement for the purposes of the Credit Agreement and for
all of the other Credit Documents and bound by the terms, conditions and
covenants, and entitled to the benefits thereof as if it were an original Lender
and signatory with [CANADIAN] [U.S.] [ACQUISITION] [OPERATING] [TERM]
[SWINGLINE] Commitments equal to (where the Assignee is already an original
Lender, the aggregate of the [CANADIAN] [U.S.] [ACQUISITION] [OPERATING] [TERM]
[SWINGLINE] Commitment originally incurred by the Assignee and) the [Canadian]
[U.S.] [Acquisition] [Operating] [Term] [Swingline] Commitments included in the
Assigned Credit Facilities, and the Borrowers shall be entitled as and from this
date to deal exclusively and directly with the Assignee in respect of all
matters relating to the Assigned Credit Facilities.
SECTION 8.01. GOVERNING LAW. This Assignment and Assumption Agreement
shall be governed by and interpreted and enforced in accordance with the laws of
the Province of Ontario and the federal laws of Canada applicable therein.
163
- 4 -
SECTION 9.01. ENUREMENT. This assignment and assumption agreement shall
enure to the benefit of and be binding upon the parties and their respective
successors and permitted assigns.
SECTION 10.01. COUNTERPARTS. This assignment and assumption agreement
may be executed in counterparts (including by way of facsimile), each of which
shall be deemed an original and which, taken together, shall constitute one and
the same instrument.
IN WITNESS WHEREOF the parties have caused this assignment and
assumption agreement to be executed by their respective authorized officers as
of the date first above written.
[ASSIGNOR]
Per:
-----------------------------------
Authorized Signing Officer
Per:
-----------------------------------
Authorized Signing Officer
[ASSIGNEE]
Per:
-----------------------------------
Authorized Signing Officer
Per:
-----------------------------------
Authorized Signing Officer
164
- 5 -
Acknowledged by the undersigned this ____ day of ______________, ______.
ROYAL BANK OF CANADA,
as Administrative Agent
Per:
-----------------------------------
Authorized Signing Officer
Per:
-----------------------------------
Authorized Signing Officer
BRACKNELL CORPORATION
Per:
-----------------------------------
Authorized Signing Officer
Per:
-----------------------------------
Authorized Signing Officer
NATIONWIDE ELECTRIC, INC.
Per:
-----------------------------------
Authorized Signing Officer
Per:
-----------------------------------
Authorized Signing Officer
THE STATE GROUP LIMITED
Per:
-----------------------------------
Authorized Signing Officer
Per:
-----------------------------------
Authorized Signing Officer
165
SCHEDULE "A"
[TO BE COMPLETED]
Purchase Price
--------------
List [CANADIAN] [U.S.] [ACQUISITION] [OPERATING]
[TERM] [SWINGLINE] Commitments U.S. $ -
166
SCHEDULE 10
FORM OF POWER OF ATTORNEY - BANKERS' ACCEPTANCES
WHEREAS [BRACKNELL CORPORATION] [THE STATE GROUP LIMITED] (the
"BORROWER") wish to facilitate the acceptance of Bankers' Acceptances pursuant
to the terms of a second amended and restated credit agreement dated as of July
21, 2000 among, inter alia, the Borrower, a syndicate of Lenders and Royal Bank
of Canada, as administrative agent (the "AGENT") (as amended, supplemented and
restated from time to time, the "CREDIT AGREEMENT"). Capitalized terms used in
this power of attorney without definition shall have the meanings specified in
the Credit Agreement.
NOW THEREFORE, the Borrower hereby appoints [o] (the "BANK"), acting by
its duly authorized signatory (the "ATTORNEY") for the time being at the Bank's
main branch in Toronto, Ontario (the "BRANCH ACCOUNT"), its attorney:
(a) to sign for and on behalf and in the name of the Borrower, as
drawer, drafts in the Bank's standard form which are
"depository bills" under and as defined in the Depository
Bills and Notes Act (Canada) (the "DBNA") ("DRAFTS") drawn on
the Bank payable to a "clearing house" under the DBNA or its
nominee for deposit by the Bank with the "clearing house"
after acceptance thereof by the Bank; and
(b) to fill in the amount, date and maturity date of such Drafts,
provided that such acts in each case are to be undertaken by the Bank in
accordance with instructions given to the Bank by the Borrower provided in this
power of attorney.
Instructions to the Bank relating to the execution, completion,
discount and/or deposit by the Bank on behalf of the Borrower of Drafts which
the Borrower wishes to submit to the Bank for acceptance by the Bank shall be
communicated by the Agent and/or the Borrower to the Bank in writing to the
attorney at the Bank's Branch of Account following delivery by the Borrower of a
Drawing Notice pursuant to Section 4.03 of the Credit Agreement and shall
specify the following information:
1. reference to this power of attorney;
2. a Canadian Dollar amount, which shall be the aggregate face amount of
the Drafts to be accepted by the Bank in respect of a particular
Borrowing;
3. a specified period of time, as provided in the Credit Agreement, which
shall be the number of days after the date of such Drafts that such
Drafts are to be payable, and the dates of issue and maturity of such
Drafts; and
167
- 2 -
4. discount/payment instructions specifying the account number of the
Borrower and the financial institution at which the proceeds from the
sale of such Drafts are to be credited.
The communication in writing by the Agent to the Bank of the
instructions referred to above shall constitute the authorization and
instruction of the Borrower to the Bank to complete and execute Drafts in
accordance with such information as set out above and the request of the
Borrower to the Bank to accept such Drafts and deposit the same with the
"clearing house" against payment as set out in the instructions. The Borrower
acknowledges that the Bank shall not be obligated to accept any such Drafts
except in accordance with the provisions of the Credit Agreement.
The Bank shall be and it is hereby authorized to act on behalf of the
Borrower upon and in compliance with instructions communicated to the Bank as
provided herein if the Bank reasonably believes them to be genuine.
The Borrower agrees to indemnify the Bank and its directors, officers,
employees, affiliates and agents and to hold it and them harmless from and
against any loss, liability, expense or claim of any kind or nature whatsoever
incurred by any of them as a result of any action or inaction in any way
relating to or arising out of this power of attorney or the acts contemplated
hereby including the deposit of any draft with the "clearing house"; provided
that this indemnity shall not apply to any such loss, liability, expense or
claim which results from the gross negligence or wilful misconduct of the Bank
or any of its directors, officers, employees, affiliates or agents.
This power of attorney may be revoked by the Borrower at any time upon
not less than five (5) Business Days' written notice served upon the Bank at the
Branch of Account, provided that (i) it may be replaced with another power of
attorney forthwith in accordance with the requirements of Section 4.04 of the
Credit Agreement, and (ii) no such revocation shall reduce, limit or otherwise
affect the obligations of the Borrower in respect of any Draft executed,
completed, endorsed, discounted and/or delivered in accordance herewith prior to
the time at which such revocation becomes effective.
This power of attorney may be terminated by the Bank at any time upon
not less than five (5) Business Days' written notice to the Borrower in
accordance with Section 11.04 of the Credit Agreement.
Any revocation or termination of this power of attorney shall not
affect the rights of the Bank and the obligations of the Borrower with respect
to the indemnities of the Borrower above stated with respect to all matters
arising prior in time to any such revocation or termination.
168
- 3 -
This power of attorney is in addition to and not in substitution for
any agreement to which the Bank and the Borrower are parties.
This power of attorney shall be governed in all respects by the laws of
the Province of Ontario and the laws of Canada applicable therein and each of
the Borrower and the Bank hereby irrevocably attorns to the non-exclusive
jurisdiction of the courts of such jurisdiction in respect of all matters
arising out of this power of attorney.
In the event of a conflict between the provisions of this Power of
Attorney and the Credit Agreement, the Credit Agreement shall prevail.
DATED at Toronto, this ________ day of __________________, 2000.
[BORROWER]
Per:
-----------------------------------
Name:
Title:
Per:
-----------------------------------
Name:
Title:
169
SUMMARY OF SIGNIFICANT PENDING LITIGATION
PARTIES CLAIM COURT AMOUNT DATE FILED COMMENTS
------- ----- ----- ------ ---------- --------
SNC-Lavalin v. Breach of Contract Ontario Court $370,005 July 26, 1999 We are seeking particulars of
State Group (General Division) this claim. SNC-Lavalin have
Limited agreed not to proceed until we
have had opportunity to discuss
the claim directly.
▇▇▇▇▇▇ v. Auto accident allegedly New Brunswick General and November 27, 1998 This claim has been referred to
▇▇▇▇▇▇▇▇ caused by an employee Court of Queen's special damages our insurer to defend.
et al. of Bracknell Bench
Sun
International Fire damage to Atlantis No claim filed yet No claim filed No claim filed This matter has been referred to
Development Hotel & Casino Project yet yet our insurer to defend. [INSURER
Limited in the Bahamas INDICATES MATTER HAS BEEN
and State Group CLOSED]
Limited
▇▇▇▇▇▇ State Compensation arising Supreme Court of $1,896,151 November 17, 1998 Just received the statement of
Atlantic from a Subcontract Nova Scotia defence.
Ltd., The State Agreement
Group Ltd.
▇. ▇▇▇▇▇▇ & SCI
Construction
Ltd.
Gerdau Courtice Damage arising from Ontario Superior $255,000 November 2, 1999 Statement of claim filed.
Steel Inc. explosion on job site Court of Justice Matter has been referred to
170
- 2 -
PARTIES CLAIM COURT AMOUNT DATE FILED COMMENTS
------- ----- ----- ------ ---------- --------
▇. ▇▇▇▇▇ insurer to defend.
Industrial
Installations
Limited
and
The State
Group
Limited
The State Group Compensation arising Queen's Bench New CDN $2,343,173 May, 2000 Statement of Claim has been
Limited v. from a Construction Brunswick filed.
Irving Oil Agreement
NKK Steel Compensation arising U.S. Federal Court Amount not May, 2000 TSGIL has filed a defense and
Engineering Inc. from termination of a specified counterclaim for wrongful
v. The State Construction Agreement termination of the Construction
Group Agreement. Mediation has
International commenced, and the parties are
Limited proceeding with discovery.
The State Group Compensation arising ▇▇▇▇▇ County Court, Amount not May, 2000 We are awaiting a defense from
International from wrongful Michigan specified NKKSE. Mediation has commenced,
Limited v. termination of a and the parties are proceeding
NKK Steel Construction Agreement with discovery.
Engineering Inc.
and others
BFC Compensation arising Dispute is to be CDN $2,000,000 December, 1999 BFC is by agreement proceeding
Construction from termination of a resolved through through arbitration with ORC on
Corporation, The Construction Agreement mediation and binding its own behalf and on behalf of
State binding arbitrarion its subcontractors.
171
- 3 -
PARTIES CLAIM COURT AMOUNT DATE FILED COMMENTS
------- ----- ----- ------ ---------- --------
Group Limited,
The Ontario
Realty
Corporation and
others
State of Compensation arising No suit filed yet. Not Specified. May, 2000 TSGIL is rejecting being
Arkansas from alleged included in the potential claim
(Department of contribution of to a as having no conection to th
Environmental contaminated site in site in question.
Quality) and Arkansas
The State Group
International
Limited and
others
Claim by Rouge Compensation for ▇▇▇▇▇ County, Not Specified. January, 2000. Matter has been referred to our
Steel alleged injuries Michigan insurer and the subcontractor to
Company for suffered on a job site defend.
Indemnity by an employee of a
relating to the subcontractor of
following
action
▇▇▇▇▇▇▇▇ v. TSGIL
Rouge Steel Bayview Electric
Company Company.
Quality Compensation arising Private Arbitration US$1,800,000 March, 1998 General Contractor of the
Mechanical from a Construction project is pursuing claim in
Contractors, Inc. Compensation arising Private Arbitration US$1,800,000 March, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇. General
v R.M.A. Inc. from a Construction Contractor of the project is
Agreement pursuing claim in Federal Court.
172
- 4 -
PARTIES CLAIM COURT AMOUNT DATE FILED COMMENTS
------- ----- ----- ------ ---------- --------
Quality Compensation arising Not filed up to $3,500,000 August 6, 1999 General Contractor is pursuing
Mechanical from Construction payment.
Contractors, Agreement
Inc. v.
Venetian Casino
Resort
LLC, et al.
Laguna Verde Third party claim ▇▇▇▇▇ County, Not Specified November, 1999 Insurance carriers are defending
Townhomes v. arising from alleged Nevada the action
Laguna Verde construction defects
Associates v.
Quality Air
Conditioning
et al
Mar-a-Lago Third party claim Not filed Not Specified December 7, 1999 ▇▇▇▇▇▇▇ Development Corporation
Homeowners arising from alleged has sent notice of third party
Association v. construction defects complaint for indemnification
▇▇▇▇▇▇▇
Development
Corporation
and ▇▇▇▇▇▇▇
Development
LLC
Quail Estates Third party claim ▇▇▇▇▇ County, Not Specified March, 2000 Insurance carriers are defending
West arising from alleged Nevada the action
Homeowners v. construction defects
▇▇▇▇▇
▇▇▇▇▇▇▇ v.
Quality
Mechanical
173
- 5 -
PARTIES CLAIM COURT AMOUNT DATE FILED COMMENTS
------- ----- ----- ------ ---------- --------
Contractors,
Inc. (as third
parties)
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇ April, 21, 2000 This matter has been referred
Homes to our insurer to defend.
Holdings Corp.
Safway Steel Third party claim July 15, 1999
Products ▇.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Bons Inc.
▇▇▇▇ ▇▇▇▇▇▇ v. Not Specified August 3, 1999 This matter has been referred
▇▇▇▇▇▇ ▇▇▇▇▇ to our insurer to defend.
Western Not Specified August 9, 1999
Casework Corp.
▇. ▇▇▇▇▇▇▇
Services Co.
Desert Plumbing Not Specified August 6, 1999
and Heating Co.
Inv. v. SNF LLC
Steel Engineers Not Specified September 4, 1997
Inc. ▇.
▇▇▇▇▇
Contracting Inc.
Quality Not Specified August 27, 1998
Mechanical
174
- 6 -
PARTIES CLAIM COURT AMOUNT DATE FILED COMMENTS
------- ----- ----- ------ ---------- --------
Contractors, Inc.
▇.
▇▇▇▇▇▇▇▇▇▇
Construction
Inc.
Quality Not Specified August 18, 1998
Mechanical
Contractors, Inc.
v. Display and
Nevada LLC
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Third Party Claim Not Specified September 22, 1998
v. ▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇
Insurance Co of Not Specified December 11, 1997
the West v.
Quality Mechanical July 1, 1997
Contractors Inc.
(2 claims)
▇.▇. ▇▇▇▇▇▇▇ Not Specified December 20, 1996
Construction Co.
Inc. v. Poser
Electric
Inc.
Salphy ▇. ▇▇▇▇▇ Not Specified August 6, 1999 This matter has been referred
v. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ to our insurance company to
defend.
175
- 7 -
PARTIES CLAIM COURT AMOUNT DATE FILED COMMENTS
------- ----- ----- ------ ---------- --------
MTB Association Not Specified April 3, 1996
v. Quality
Mechanical
Contractors, Inc.