Exhibit 10.23
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BURNS INTERNATIONAL SERVICES CORPORATION
FOURTH AMENDMENT
TO AMENDED AND RESTATED CREDIT AGREEMENT
This FOURTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this
"Amendment") is dated as of March 3, 2000 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 quarters ending March
31, 2000 and June 30, 2000 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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Subsection 1.1 of the Credit Agreement is hereby amended by adding the
definition of "Fourth Amendment Effective Date" in appropriate alphabetical
order as follows:
"Fourth Amendment Effective Date" means the date the Fourth Amendment
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to Amended and Restated Credit Agreement dated as of March 3, 2000
(the "Fourth Amendment") becomes effective in accordance with its
terms."
1.2 Amendments to Section 2: Amounts and Terms of Commitments and
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Loans; Notes; Letters of Credit
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Subsection 2.3 of the Credit Agreement is hereby amended by adding a
new paragraph at the end thereof as follows:
"D. Fourth Amendment Fees. Company agrees to pay to each
Consenting Lender (as defined in the Fourth Amendment) (x) on May 15,
2000, a fee in an amount equal to .025% of such Lender's Commitment in
the event that Company's Consolidated Leverage Ratio for the fiscal
quarter ended March 31, 2000 exceeds 3.70:1.00, and (y) on August 15,
2000 a fee in an amount equal to .05% of such Lender's Commitment in
the event that Company's Consolidated Leverage Ratio for the fiscal
quarter ended June 30, 2000 exceeds 3.25:1.00, in each case as set
forth in Company's Compliance Certificate delivered with respect to
such fiscal quarter."
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 quarters ending
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December 31, 1999, March 31, 2000 and June 30, 2000, such Consolidated
Leverage Ratio shall not exceed 3.90:1.00, 3.90:1.00 and 3.55:1.00,
respectively."
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 "Fourth
Amendment Effective Date"):
A. On or before the Fourth Amendment Effective Date, Company shall
deliver to Lenders (or to Administrative Agent for Lenders) the following, each,
unless otherwise noted, dated the Fourth 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 March 14, 2000 (a "Consenting Lender") an amendment fee in an amount
equal to .05% of such Lender's Commitment.
C. On or before the Fourth 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 Fourth
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 Fourth 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 Fourth 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.
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:____________________________________________
PARIBAS
By: ____________________________________________
Title:____________________________________________
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:____________________________________________