Exhibit 10.1
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BURNS INTERNATIONAL SERVICES CORPORATION
THIRD AMENDMENT
TO AMENDED AND RESTATED CREDIT AGREEMENT
This THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this "Amendment")
is dated as of December 16, 1999 and entered into by and among Burns
International Services Corporation (formerly named Borg-Warner Security
Corporation), a Delaware corporation ("Company"), the financial institutions
listed on the signature pages hereof ("Lenders"), Canadian Imperial Bank of
Commerce, as Documentation Agent (the "Documentation Agent"), Bank of America,
N.A., as Syndication Agent (the "Syndication Agent") and Bankers Trust Company,
as Administrative Agent for Lenders ("Agent"), and, for purposes of Section 5
hereof, the Credit Support Party (as defined in Section 5 hereof) listed on the
signature pages hereof, and is made with reference to that certain Amended and
Restated Credit Agreement dated as of June 30, 1998 (as heretofore amended, the
"Credit Agreement"), by and among Company, Lenders, Documentation Agent,
Syndication Agent and Administrative Agent. Capitalized terms used herein
without definition shall have the same meanings herein as set forth in the
Credit Agreement.
RECITALS
WHEREAS, Company and Lenders desire to amend the Credit Agreement to increase
the Consolidated Leverage Ratio for the fiscal quarter ending December 31, 1999
and to make certain other amendments as set forth below;
NOW, THEREFORE, in consideration of the premises and the agreements, provisions
and covenants herein contained, the parties hereto agree as follows:
Section 1. AMENDMENTS TO THE CREDIT AGREEMENT
1.1 Amendments to Section 1: Certain Defined Terms
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A. The definition of "Commitment Fee Percentage" is hereby amended by deleting
the proviso contained therein and by substituting therefor the following:
"; provided however (i) from the Business Day following the date
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of the delivery of the Margin Determination Certificate for the
fiscal quarter ended September 30, 1999 until the Third Amendment
Effective Date, the Commitment Fee Percentage shall be the rate
in effect under the Credit
Agreement immediately prior to the Third Amendment Effective
Date and (ii) commencing on the Third Amendment Effective Date
through the date on which Company delivers the Margin
Determination Certificate for the fiscal quarter ended December
31, 1999, the Commitment Fee Percentage shall be the highest
rate provided for in the above table."
B. Subsection 1.1 of the Credit Agreement is hereby amended by adding the
definition of "Third Amendment Effective Date" in appropriate alphabetical order
as follows:
"'Third Amendment Effective Date' means the date the Third
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Amendment to Amended and Restated Credit Agreement dated as of
December 16, 1999 (the "Third Amendment") becomes effective in
accordance with its terms."
1.2 Amendments to Section 2: Amounts and Terms of Commitments
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and Loans; Notes; Letters of Credit
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A. Subsection 2.2A of the Credit Agreement is hereby amended by deleting the
proviso contained in the second paragraph thereof and by substituting therefor
the following:
"; provided however (i) from the Business Day following the
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date of the delivery of the Margin Determination Certificate for
the fiscal quarter ended September 30, 1999 until the Third
Amendment Effective Date, the Loans shall bear interest at the
rate in effect under the Credit Agreement immediately prior to
the Third Amendment Effective Date and (ii) commencing on the
Third Amendment Effective Date through the date on which Company
delivers the Margin Determination Certificate for the fiscal
quarter ended December 31, 1999, the Loans shall bear interest
at the highest rate provided for in the above table."
B. Subsection 2.3 of the Credit Agreement is hereby amended by adding a new
paragraph at the end thereof as follows:
"C. Third Amendment Fees. Company agrees to pay to each
Consenting Lender (as defined in the Third Amendment) on April
3, 2000 a fee in an amount equal to .075% of such Lender's
Commitment in the event that the daily average of Company's Net
Funded Debt for the period commencing on March 27, 2000 and
ending on March 31, 2000 exceeds $235,000,000. Company shall
deliver to Administrative Agent on April 3, 2000 an Officers'
Certificate calculating the daily average of Company's Net
Funded Debt for such period. In addition, in the event that
Company's Consolidated Leverage Ratio for the fiscal quarter
ended December 31, 1999 is between 3.70:1.00 and 3.90:1.00, as
set forth in Company's Compliance Certificate delivered with
respect to such fiscal quarter, Company shall pay to each
Consenting Lender (as defined in the Third Amendment) an
additional amendment fee in an amount equal to .025% of such
Lender's Commitment."
1.3 Amendment to Section 6: Company's Negative Covenants
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A. Subsection 6.6B of the Credit Agreement is hereby amended by deleting such
subsection in its entirety and replacing such subsection with the following:
"B. Leverage Ratio. Company will not permit its Consolidated Leverage
Ratio as of the last day of each fiscal quarter to exceed 3.25:1.00;
provided however that for the fiscal quarter ending December 31, 1999
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such Consolidated Leverage Ratio shall not exceed 3.90:1.00 ."
Section 2.CONDITIONS TO EFFECTIVENESS
Section 1 of this Amendment shall become effective only upon the satisfaction of
all of the following conditions precedent (the date of satisfaction of such
conditions being referred to herein as the "Third Amendment Effective Date"):
A. On or before the Third Amendment Effective Date, Company shall deliver to
Lenders (or to Administrative Agent for Lenders) the following, each, unless
otherwise noted, dated the Third Amendment Effective Date:
1. Signature and incumbency certificates of its officers executing
this Amendment; and
2. Executed copies of this Amendment.
B. Company shall pay to each of the Lenders executing this Amendment
prior to December 24, 1999 (a "Consenting Lender") an amendment fee in an amount
equal to .05% of such Lender's Commitment.
C. On or before the Third Amendment Effective Date, all corporate and other
proceedings taken or to be taken in connection with the transactions
contemplated hereby and all documents incidental thereto not previously found
acceptable by Administrative Agent, acting on behalf of Lenders, and its counsel
shall be satisfactory in form and substance to Administrative Agent and such
counsel, and Administrative Agent and such counsel shall have received all such
counterpart originals or certified copies of such documents as Administrative
Agent may reasonably request.
D. Requisite Lenders shall have executed and delivered copies of this
Amendment to Administrative Agent.
Section 3. COMPANY'S REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Amendment and to amend the Credit
Agreement in the manner provided herein, Company represents and warrants to each
Lender that the following statements are true, correct and complete:
A. Corporate Power and Authority. Company has all requisite corporate power and
authority to enter into this Amendment and to carry out the transactions
contemplated by, and perform its obligations under, the Credit Agreement as
amended by this Amendment (the "Amended Agreement").
B. Authorization of Agreements. The execution and delivery of this Amendment and
the performance of the Amended Agreement have been duly authorized by all
necessary corporate action on the part of Company.
C. No Conflict. The execution and delivery by Company of this Amendment and the
performance by Company of the Amended Agreement do not and will not (i) violate
any provision of any law or any governmental rule or regulation applicable to
Company or any of its Subsidiaries, the Certificate or Articles of Incorporation
or Bylaws of Company or any of its Subsidiaries or any order, judgment or decree
of any court or other agency of government binding on Company or any of its
Subsidiaries, (ii) conflict with, result in a breach of or constitute (with due
notice or lapse of time or both) a default under any Contractual Obligation of
Company or any of its Subsidiaries, (iii) result in or require the creation or
imposition of any Lien upon any of the properties or assets of Company or any of
its Subsidiaries or (iv) require any approval of stockholders or any approval or
consent of any Person under any Contractual Obligation of Company or any of its
Subsidiaries.
D. Governmental Consents. The execution and delivery by Company of this
Amendment and the performance by Company of the Amended Agreement do not and
will not require any registration with, consent or approval of, or notice to, or
other action to, with or by, any federal, state or other governmental authority
or regulatory body.
E. Binding Obligation. This Amendment and the Amended Agreement have been duly
executed and delivered by Company and are the legally valid and binding
obligations of Company, enforceable against Company in accordance with their
respective terms, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or limiting creditors'
rights generally or by equitable principles relating to enforceability.
F. Incorporation of Representations and Warranties From Credit Agreement. The
representations and warranties contained in Section 4 of the Credit Agreement
are and will be true, correct and complete in all material respects on and as of
the Third Amendment Effective Date to the same extent as though made on and as
of that date, except to the extent such representations and warranties
specifically relate to an earlier date, in which case they were true, correct
and complete in all material respects on and as of such earlier date.
G. Absence of Default. No event has occurred and is continuing or will result
from the consummation of the transactions contemplated by this Amendment that
would constitute an Event of Default or a Potential Event of Default.
Section 4. ACKNOWLEDGEMENT AND CONSENT
Company is a party to the Company Pledge Agreement, pursuant to which Company
has created Liens in favor of Administrative Agent on certain Collateral to
secure the Obligations. Burns International Security Services Corporation
(formerly named Borg-Warner Protective Services Corporation) (the "Credit
Support Party") has (i) guarantied the Obligations pursuant to the Borg-Warner
Subsidiary Guaranty and (ii) pledged certain Collateral to Administrative Agent
to secure the obligations of such subsidiary under such guaranty pursuant to the
Borg-Warner Subsidiary Pledge Agreement. Company and such subsidiary are
collectively referred to herein as the "Credit Support Parties", and the Borg-
Warner Subsidiary Guaranty and/or the Borg-Warner Subsidiary Pledge Agreement
and Company Pledge Agreement are collectively referred to herein as the "Credit
Support Documents".
Each Credit Support Party hereby acknowledges that it has reviewed the terms and
provisions of the Credit Agreement and this Amendment and consents to the
amendment of the Credit Agreement effected pursuant to this Amendment. Each
Credit Support Party hereby confirms that each Credit Support Document to which
it is a party or otherwise bound and all Collateral encumbered thereby will
continue to guaranty or secure, as the case may be, to the fullest extent
possible the payment and performance of all "Obligations," "Guarantied
Obligations" and "Secured Obligations," as the case may be (in each case as such
terms are defined in the applicable Credit Support Document), including without
limitation the payment and performance of all such "Obligations," "Guarantied
Obligations" or "Secured Obligations," as the case may be, in respect of the
Obligations of Company now or hereafter existing under or in respect of the
Amended Agreement and the Notes defined therein.
Each Credit Support Party acknowledges and agrees that any of the Credit Support
Documents to which it is a party or otherwise bound shall continue in full force
and effect and that all of its obligations thereunder shall be valid and
enforceable and shall not be impaired or limited by the execution or
effectiveness of this Amendment. Each Credit Support Party represents and
warrants that all representations and warranties contained in the Amended
Agreement and the Credit Support Documents to which it is a party or otherwise
bound are true, correct and complete in all material respects on and as of the
Third Amendment Effective Date to the same extent as though made on and as of
that date, except to the extent such representations and warranties specifically
relate to an earlier date, in which case they were true, correct and complete in
all material respects on and as of such earlier date.
Each Credit Support Party (other than Company) acknowledges and agrees that (i)
notwithstanding the conditions to effectiveness set forth in this Amendment,
such Credit Support Party is not required by the terms of the Credit Agreement
or any other Loan Document to consent to the amendments to the Credit Agreement
effected pursuant to this Amendment and (ii) nothing in the Credit Agreement,
this Amendment or any other Loan Document shall be deemed to require the consent
of such Credit Support Party to any future amendments to the Credit Agreement.
Section 5. MISCELLANEOUS
A. Reference to and Effect on the Credit Agreement and the Other Loan
Documents.
(i) On and after the Third Amendment Effective Date, each reference in
the Credit Agreement to "this Agreement", "hereunder", "hereof",
"herein" or words of like import referring to the Credit Agreement,
and each reference in the other Loan Documents to the "Credit
Agreement", "thereunder", "thereof" or words of like import referring
to the Credit Agreement shall mean and be a reference to the Amended
Agreement.
(ii) Except as specifically amended by this Amendment, the Credit
Agreement and the other Loan Documents shall remain in full force and
effect and are hereby ratified and confirmed.
(iii) The execution, delivery and performance of this Amendment shall
not, except as expressly provided herein, constitute a waiver of any
provision of, or operate as a waiver of any right, power or remedy of
Administrative Agent or any Lender under, the Credit Agreement or any
of the other Loan Documents.
B. Fees and Expenses. Company acknowledges that all costs, fees and expenses as
described in subsection 9.2 of the Credit Agreement incurred by Administrative
Agent and its counsel with respect to this Amendment and the documents and
transactions contemplated hereby shall be for the account of Company.
C. Headings. Section and subsection headings in this Amendment are included
herein for convenience of reference only and shall not constitute a part of this
Amendment for any other purpose or be given any substantive effect.
D. Applicable Law. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING WITHOUT
LIMITATION SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW
YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
E. Counterparts. This Amendment may be executed in any number of counterparts
and by different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument; signature pages may
be detached from multiple separate counterparts and attached to a single
counterpart so that all signature pages are physically attached to the same
document.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed and delivered by their respective officers thereunto duly authorized as
of the date first written above.
BURNS INTERNATIONAL SERVICES CORPORATION
By: ___________________________________________
Title: ___________________________________________
BURNS INTERNATIONAL SECURITY SERVICES CORPORATION,
(for purposes of Section 5 only) as a Credit
Support Party
By: ___________________________________________
Title: ___________________________________________
BANKERS TRUST COMPANY, Individually and as
Administrative Agent
By: ___________________________________________
Title: ___________________________________________
CIBC INC.,
individually and as Documentation Agent
By: ___________________________________________
Title: ___________________________________________
BANK OF AMERICA, N.A.,
individually and as Syndication Agent
By: __________________________________________
Title: __________________________________________
ABN AMRO BANK, N.V., CHICAGO BRANCH
By: __________________________________________
Title: __________________________________________
By: __________________________________________
Title: __________________________________________
ARAB BANKING CORPORATION
By: __________________________________________
Title: __________________________________________
BANK OF HAWAII
By: __________________________________________
Title: __________________________________________
THE BANK OF NEW YORK
By: __________________________________________
Title: __________________________________________
BANQUE PARIBAS
By: __________________________________________
Title: __________________________________________
COMMERCIAL LOAN FUNDING TRUST I
By: Lehman Commercial Paper Inc., not in its
individual capacity but solely as
administrative agent
By: ___________________________________
Name: Michele Swanson
Title: Authorized Signatory
CREDIT AGRICOLE INDOSUEZ
By: __________________________________________
Title: __________________________________________
By: __________________________________________
Title: __________________________________________
THE FUJI BANK, LIMITED
CHICAGO BRANCH
By: __________________________________________
Title: __________________________________________
GENERAL ELECTRIC CAPITAL CORPORATION
By: __________________________________________
Title: __________________________________________
IMPERIAL BANK
By: __________________________________________
Title: __________________________________________
MERCANTILE BANK NATIONAL ASSOCIATION
By: __________________________________________
Title: __________________________________________
MERITA BANK
By: __________________________________________
Title: __________________________________________
TORONTO DOMINION (TEXAS), INC.
By: __________________________________________
Title: __________________________________________
UNITED WORLD CHINESE COMMERCIAL BANK, LOS ANGELES
AGENCY
By: __________________________________________
Title: __________________________________________