Exhibit 10.2
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January 3, 2000
Burns International Services Corporation
200 South Michigan Avenue
Chicago, Illinois 60604
Attention: Brian Cooper,
Treasurer
Re: Line of Credit Agreement
Gentlemen:
This letter will confirm our agreement relating to the line of credit
which Bankers Trust Company ("Bank") has granted to Burns International Services
Corporation (formerly named Borg-Warner Security Corporation) (the "Company").
1. Our line of credit (the "Line of Credit") shall be in the amount
of Fifteen Million United States Dollars ($15,000,000) and shall, unless we
notify Company otherwise, expire on February 29, 2000.
2. All loans under the Line of Credit shall be payable on demand and
shall be evidenced by a promissory note of Company substantially in the form of
Exhibit A hereto (the "Line of Credit Note"). All advances on the Line of Credit
Note shall be made by credit of immediately available funds to Company's account
at Bank described in paragraph 5 below. Advances on the Line of Credit Note may
be made by us at the oral or written request of persons designated by Company in
writing. Any one such person shall be authorized to request advances and direct
the disposition of any such advances until written notice of the revocation of
such authority is received by us. Any such advances shall be conclusively
presumed to have been made to or for Company's benefit regardless of the fact
that persons other than those authorized in such designation may have authority
to draw against such amount.
3. The date and amount of each loan under the Line of Credit shall be
entered by us in the column for loans appearing on the grid attached to the Line
of Credit Note, and the amount of any payments of principal and interest
received by us shall likewise be entered by us in the column for such payments
on the grid.
4. Interest shall be payable on the Line of Credit loans at the rate
and at the times set forth in the Line of Credit Note.
5. The proceeds of all loans under the Line of Credit may be used for
general corporate purposes not including the purpose of purchasing or carrying
any "margin stock" within the meaning of Regulation U of the Board of Governors
of the Federal Reserve System. All such proceeds shall be credited to Company's
account number 50-192-012 at Bank (the "Account").
6. The Line of Credit Note and Company's obligations under this Line
of Credit Agreement shall be guarantied by Burns International Security Services
Corporation (the "Subsidiary"), a Material Subsidiary (as defined in the Credit
Agreement hereinafter referred to) of Company, which guaranty shall be
substantially in the form of Exhibit B hereto (the "Subsidiary Guaranty"). In
the event that the Line of Credit Note has not been repaid in full on or prior
to February 29, 2000, upon request of Bank, Company will immediately cause
Subsidiary to secure its obligations under the Subsidiary Guaranty by granting
to Bank a first priority perfected lien on its operating headquarters located at
Two Campus Drive, Parsippany, N.J. 07054-0330 (the "Real Property Collateral").
Upon such request of Bank, Company hereby agrees to cause Subsidiary to execute
and deliver such documents, including without limitation, a mortgage or deed of
trust on such Real Property Collateral in form and substance reasonably
satisfactory to Bank, and to take such actions as may be necessary or
appropriate in the reasonable judgment of Bank to grant to Bank such first
priority perfected lien on the Real Property Collateral. Company will not permit
Subsidiary to, directly or indirectly, create, incur, assume or permit to exist
any lien on such Real Property Collateral other than the lien in favor of Bank
securing Subsidiary's obligations under the Subsidiary Guaranty.
7. Company hereby represents and warrants that, at the time of each
borrowing and as a condition precedent to each borrowing, that the following
statements are true, correct and complete:
(a) no Event of Default or Potential Event of Default (as such terms
are defined in the hereinafter referred to Credit Agreement) has occurred
and is continuing under that certain Amended and Restated Credit Agreement
dated as of June 30, 1998, as amended (the "Credit Agreement"), among Burns
International Services Corporation, the Lenders listed therein, as Lenders
and Bankers Trust Company, as Administrative Agent or will result from the
proposed borrowing;
(b) the representations and warranties contained in the Credit
Agreement and the other Loan Documents (as such term is defined in the
Credit Agreement) are true, correct and complete in all material respects
at the time of such borrowing to the same extent as though made on and as
of such date of borrowing;
(c) Company and its subsidiaries have performed in all material
respects all agreements provided to be performed by them under the Credit
Agreement and the other Loan Documents at the time of such borrowing; and
(d) there shall not be pending, or to the knowledge of Company
threatened, any action, suit, proceeding, governmental investigation or
arbitration against or affecting Company or any of its subsidiaries which
could reasonably be expected to have a Material Adverse Effect (as such
term is defined in the Credit Agreement).
8. Company also hereby represents and warrants that as of the date
of this Agreement and at the time of each borrowing and as a condition precedent
to each borrowing, the following statements are true, correct and complete:
(a) each of Company and Subsidiary has all requisite corporate power
and authority to enter into this Line of Credit Agreement, the Line of
Credit Note and the Subsidiary Guaranty (collectively, the "Credit
Documents") to which Company or Subsidiary is a party and to carry out the
transactions contemplated by, and perform its obligations under, the Credit
Documents to which it is a party;
(b) the execution and delivery of the Credit Documents to which it is
a party and the performance of the Credit Documents to which it is a party
have been duly authorized by all necessary corporate action on the part of
Company and Subsidiary;
(c) the execution and delivery by Company and Subsidiary of the Credit
Documents to which it is a party and the performance by Company and
Subsidiary of the Credit Documents to which it is a party do not and will
not (i) violate any provision of any law or any governmental rule or
regulation applicable to Company or Subsidiary, the Certificate or Articles
of Incorporation or Bylaws of Company or Subsidiary or any order, judgment
or decree of any court or other agency of government binding on Company or
Subsidiary, (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 Subsidiary, (iii) result in or require the
creation or imposition of any lien upon any of the properties or assets of
Company or Subsidiary (other than as may be required with respect to the
Real Property Collateral) or (iv) require any approval of stockholders or
any approval or consent of any Person under any contractual obligation of
Company or Subsidiary;
(d) the execution and delivery by Company and Subsidiary of the Credit
Documents to which it is a party and the performance by Company and
Subsidiary of the Credit Documents to which it is a party 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) the Credit Documents to which it is a party have been duly
executed and delivered by Company and Subsidiary and are the legally valid
and binding obligations of Company and Subsidiary, enforceable against
Company and
Subsidiary 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; and
(f) no event has occurred and is continuing or will result from the
consummation of the transactions contemplated by the Credit Documents that
would constitute an Event of Default or a Potential Event of Default under
the Credit Agreement.
9. Bank shall have the right at any time to sell, assign, transfer,
negotiate or grant participations to other commercial banks in all or any part
of the Line of Credit Note and loans under the Line of Credit. Company hereby
acknowledges and agrees that any such disposition will give rise to a direct
obligation of Company to the participant and the participant shall for all
purposes relevant thereto be considered to be treated as though it were "Bank"
under the Line of Credit Note and hereunder.
10. Company agrees to pay Bank a commitment fee, from the date hereof
to and including the date the Line of Credit provided for herein expires or is
terminated, equal to the excess of the daily unused amount of the Line of Credit
over the aggregate principal amount of all advances outstanding and made
pursuant to the Line of Credit multiplied by 0.50% per annum, such commitment
fee to be calculated on the basis of a 360-day year and the actual number of
days elapsed and to be payable on demand or upon the expiration or termination
of the Line of Credit.
11. This Line of Credit Agreement and the Line of Credit Note shall
be construed and enforced in accordance with, and governed by, the laws of the
State of New York.
12. This Line of Credit Agreement 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.
If the foregoing is acceptable, please so indicate below and return a
signed copy hereof to Bank.
Very truly yours,
BANKERS TRUST COMPANY
By: __________________________
Title: __________________________
ACCEPTED AND AGREED TO:
BURNS INTERNATIONAL SERVICES CORPORATION
By: ________________________
Title: ________________________
EXHIBIT A
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BURNS INTERNATIONAL SERVICES CORPORATION
DEMAND PROMISSORY NOTE
$15,000,000.00 Chicago, Illinois
January 3, 2000
FOR VALUE RECEIVED, BURNS INTERNATIONAL SERVICES CORPORATION (formerly named
Borg-Warner Security Corporation), a Delaware corporation ("Company"), promises
to pay to the order of BANKERS TRUST COMPANY ("Payee") ON DEMAND, or in the
event no demand is made, on February 29, 2000, the lesser of (x) of Fifteen
Million United States Dollars ($15,000,000) or (y) the unpaid principal amount
of all advances made by Payee to Company pursuant to a Line of Credit Agreement
between Payee and Company dated January 3, 2000 (the "Line of Credit Agreement")
and evidenced by this Note.
Company also promises to pay interest on the unpaid principal amount hereof,
from the date hereof until the principal amount of all advances made by Payee to
Company hereunder is paid in full, at a fluctuating interest rate per annum that
is at all times equal to the rate which Payee announces from time to time as its
Prime Rate plus 1.50% per annum. Interest on this Note shall be payable upon
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demand and upon any payment of this Note to the extent accrued on the amount
paid. All computations of interest shall be made by Payee on the basis of a 360-
day year, for the actual number of days elapsed in the relevant period
(including the first day but excluding the last day). Payee's "Prime Rate" is a
reference rate and does not necessarily represent the lowest or best rate
actually charged to any customer. Payee may make commercial loans or other loans
at a rate of interest at, above or below its Prime Rate.
All payments of principal and interest in respect of this Note shall be made in
lawful money of the United States of America in same day funds at the office of
Payee located at One Bankers Trust Plaza, New York, New York, or at such other
place as Payee may direct. Payee hereby agrees, by its acceptance hereof, that
before disposing of this Note or any part hereof it will make a notation hereon
of all principal payments previously made hereunder and of the date to which
interest hereon has been paid; provided, however, that the failure to make a
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notation of any payment made on this Note shall not limit or otherwise affect
the obligations of Company hereunder with respect to payments of principal of or
interest on this Note.
Whenever any payment on this Note shall be stated to be due on a day which is
not a Business Day, such payment shall be made on the next succeeding Business
Day and such extension of time shall be included in the computation of the
payment of interest on this Note. As used herein, "Business Day" shall mean any
day excluding Saturday, Sunday and any day which is a legal holiday under the
laws of the States of New York or Illinois or is a day on which banking
institutions located in such states are authorized or required by law or other
governmental action to close.
This Note is issued pursuant to the terms of the Line of Credit Agreement, to
which reference is hereby made for a more complete statement of the terms and
conditions relating to the payment of the loans evidenced by this Note. This
Note is the Line of Credit Note as referred to in the Line of Credit Agreement.
Company shall have the right at any time and from time to time to prepay the
principal of this Note in
whole or in part, without premium or penalty; provided that each such partial
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prepayment shall be in an aggregate minimum amount of $1,000,000 and in integral
multiples thereof in excess of that amount. THIS NOTE SHALL BE GOVERNED BY, AND
SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE
STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
Upon the failure of Company to pay any principal, interest or other amount due
under this Note when due, whether at stated maturity, by declaration,
acceleration, demand or otherwise, the unpaid balance of the principal amount of
this Note, together with all accrued and unpaid interest thereon, shall become
immediately due and payable, without presentment, demand, notice, protest or
other requirements of any kind (all of which are hereby expressly waived by
Company). Demand for payment on this Note may be made whether or not any of the
foregoing events shall have occurred. COMPANY WAIVES ALL RIGHT TO TRIAL BY JURY
IN ANY JUDICIAL PROCEEDING RELATING TO THIS NOTE.
No reference herein to the Line of Credit Agreement and no provision of this
Note or the Line of Credit Agreement shall alter or impair the obligation of
Company, which is absolute and unconditional, to pay the principal of and
interest on this Note at the place, at the respective times, and in the currency
herein prescribed.
Company promises to pay all costs and expenses, including reasonable attorneys'
fees, incurred in the collection and enforcement of this Note. Company and any
endorsers of this Note hereby consent to renewals and extensions of time at or
after the maturity hereof, without notice, and hereby waive diligence,
presentment, protest, demand and notice of every kind and, to the full extent
permitted by law, the right to plead any statute of limitations as a defense to
any demand hereunder.
IN WITNESS WHEREOF, Company has caused this Note to be duly executed and
delivered by its officer thereunto duly authorized as of the date and at the
place first written above.
BURNS INTERNATIONAL SERVICES CORPORATION
By: _______________________________
Title: _______________________________