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Ex. 10.55
TERM LOAN AGREEMENT
TERM LOAN AGREEMENT, dated as of the 26th day of November, 1997, by and
between RURAL/METRO CORPORATION, a corporation organized under the laws of
Delaware, as borrower (the "Borrower"), and FIRST UNION NATIONAL BANK, as lender
(the "Lender").
STATEMENT OF PURPOSE
The Borrower has requested, and the Lender has agreed to extend, a term
loan in a principal amount equal to $5,000,000 to the Borrower on the terms and
conditions of this Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, such parties
hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions. Capitalized terms used herein and not defined
herein shall have the meanings assigned thereto in the Revolving Credit
Agreement (as defined below). In addition, the following terms when used in this
Agreement shall have the meanings assigned to them below:
"Agreement" means this Term Loan Agreement, as amended, restated,
supplemented or otherwise modified.
"Borrower" means Rural/Metro Corporation, a Delaware corporation, in
its capacity as borrower hereunder.
"Closing Date" means the date of this Agreement.
"Commitment" means the obligation of the Lender to make the Loan to the
Borrower hereunder in an aggregate principal amount of $5,000,000.
"Credit Facility" means the credit facility established pursuant to
Article II hereof.
"Default" means any of the events specified in Section 7.1 which with
the passage of time, the giving of notice or any other condition, would
constitute an Event of Default.
"Event of Default" means any of the events specified in Section 7.1;
provided, that any requirement for passage of time, giving of notice, or any
other condition, has been satisfied.
"Interest Period" means a period of one month with respect to the
initial Interest Period and each successive Interest Period thereafter; provided
that (a) the initial Interest Period shall
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commence on the date of the initial advance of the Loan and, in the case of
immediately successive Interest Periods, each successive Interest Period shall
commence on the date on which the next preceding Interest Period expires, (b) if
any Interest Period would otherwise expire on a day that is not a Business Day,
such Interest Period shall expire on the next succeeding Business Day (unless
the next succeeding Business Day falls in another calendar month in which case
the Interest Period shall end on the next preceding Business Day), (c) any
Interest Period that begins on the last Business Day of a calendar month (or on
a day for which there is no numerically corresponding day in the calendar month
at the end of such Interest Period) shall end on the last Business Day of the
calendar month at the end of such Interest Period, and (d) no Interest Period
shall extend beyond the Maturity Date.
"Lender" means First Union National Bank in its capacity as lender
hereunder.
"LIBOR" means the rate of interest determined on the basis of the rate
for deposits in Dollars for a period equal to the applicable Interest Period
commencing on the first day of such Interest Period appearing on Telerate Page
3750 as of 11:00 a.m. (London time) two (2) Business Days prior to the first day
of the applicable Interest Period. In the event that such rate does not appear
on Telerate Page 3750, "LIBOR" shall be determined by the Lender to be the rate
per annum at which deposits in Dollars are offered by leading reference banks in
the London interbank market to the Lender at approximately 11:00 a.m. (London
time) two (2) Business Days prior to the first day of the applicable Interest
Period for a period equal to such Interest Period and in an amount substantially
equal to the amount of the Loan.
"Loan" means the term loan made to the Borrower pursuant to Section
2.1.
"Loan Documents" means, collectively, this Agreement, the Note, and
each other document, instrument and agreement executed and delivered by the
Borrower in connection with this Agreement or otherwise referred to herein or
contemplated hereby, all as may be amended, restated, supplemented or otherwise
modified.
"Maturity Date" means the date which is one hundred twenty (120) days
from the Closing Date.
"Note" means the separate Term Note made by the Borrower payable to the
order of the Lender, substantially in the form of Exhibit A hereto, evidencing
the Credit Facility, and any amendments and modifications thereto, any
substitutes therefor, and any replacements, restatements, renewals or extensions
thereof, in whole or in part.
"Obligations" means, in each case, whether now in existence or
hereafter arising: (a) the principal of and interest on (including interest
accruing after the filing of any bankruptcy or similar petition) the Loan, (b)
all payment and other obligations owing by the Borrower to the Lender under any
Hedging Agreement and (c) all other reasonable fees (including reasonable
attorney's fees), commissions, charges, indebtedness, loans, liabilities,
financial accommodations, obligations, covenants and duties owing by the
Borrower to the Lender pursuant to this Agreement or any other
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Loan Document, of every kind, nature and description, direct or indirect,
absolute or contingent, due or to become due, contractual or tortious,
liquidated or unliquidated, and whether or not evidenced by any note, and
whether or not for the payment of money.
"Reserve Requirement" means the actual daily arithmetic reserve
requirement imposed on the Lender by the Board of Governors of the Federal
Reserve System (or any successor) under Regulation D on Eurocurrency liabilities
(as defined in Regulation D) of the Lender for the applicable Interest Period as
of the first day of such Interest Period, but subject to any changes in such
reserve requirement becoming effective during the Interest Period.
"Revolving Credit Agreement" means the Credit Agreement dated as of
September 29, 1995 (as amended by the First Amendment to Credit Agreement dated
as of December 20, 1996, as amended by the Second Amendment to Credit Agreement
dated as of May 28, 1997, and as further amended, restated, supplemented or
otherwise modified from time to time) by and among Rural/Metro Corporation, as
Guarantor, certain Subsidiaries thereof listed on the signature pages thereto,
as Initial Borrowers, any Additional Borrowers who may become party thereto, the
Lenders referred to therein, and First Union National Bank (f/k/a First Union
National Bank of North Carolina), as Agent for the Lenders.
SECTION 1.2. Miscellaneous.
(a) General. Unless otherwise specified, a reference in this Agreement
to a particular section, subsection, Schedule or Exhibit is a reference to that
section, subsection, schedule or Exhibit of this Agreement. Wherever from the
context it appears appropriate, each term stated in either the singular or
plural shall include the singular and plural, and pronouns stated in the
masculine, feminine or neuter gender shall include the masculine, the feminine
and the neuter. Any reference herein to "Charlotte time" shall refer to the
applicable time of day in Charlotte, North Carolina. The words "hereof",
"herein" and "hereunder" and words of similar import when used in this Agreement
shall refer to this Agreement as a whole and not to any particular provision of
this Agreement.
(b) Revolving Credit Agreement. The terms and conditions of each
article, section or subsection of the Revolving Credit Agreement which are
incorporated in this Agreement by reference shall continue as such terms and
conditions are set forth in the Revolving Credit Agreement on the Closing Date
hereof irrespective of any termination of the Revolving Credit Agreement. A copy
of the Revolving Credit Agreement is attached hereto as Exhibit B.
ARTICLE II
CREDIT FACILITY
SECTION 2.1. Loan. Subject to the terms and conditions of this
Agreement, the Lender agrees to make the Loan to the Borrower in a principal
amount equal to the Commitment.
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SECTION 2.2. Repayment of the Loan. The Borrower shall repay the
principal amount of the Loan, together with all accrued and unpaid interest, in
a single installment due and payable in full on the Maturity Date.
SECTION 2.3. Term Note. The Loan and the obligation of the Borrower to
repay the Loan shall be evidenced by the Note executed by the Borrower payable
to the order of the Lender representing the Borrower's obligation to pay the
Commitment. The Note shall be dated the Closing Date and shall bear interest on
the unpaid principal amount thereof at the applicable interest rate per annum
specified in Section 2.7.
SECTION 2.4. Procedure for Advance of the Loan. Subject to the terms
and conditions of this Agreement, not later than 1:00 p.m. (Charlotte time) on
the Closing Date, the Lender will disburse the proceeds of the Loan in
immediately available funds by crediting such proceeds to a deposit account of
the Borrower maintained with the Lender.
SECTION 2.5. Use of Proceeds. The Borrower shall use the proceeds of
the Loan for working capital and general corporate requirements of the Borrower.
SECTION 2.6. Prepayment of the Loan. Provided the Lender receives at
least three (3) Business Days' prior notice thereof and Borrower
contemporaneously pays all unpaid interest accrued thereon, the Borrower may
from time to time prepay, at its option, any portion of the unpaid principal
balance of the Note but only upon the expiration of any Interest Period
therefor. Subject to the following sentence, any optional prepayment permitted
hereby shall be without premium or penalty and shall be applied in the manner
the Lender may elect in its sole and absolute discretion. Each prepayment
referred to herein shall be accompanied by such amounts as shall be necessary to
indemnify the Bank for any loss, cost or expense incurred by the Bank as set
forth in Section 2.11 hereof.
SECTION 2.7. Interest.
(a) Rate of Interest. Subject to Section 2.7(b), the Loan shall bear
interest on the unpaid principal balance outstanding from time to time at LIBOR
plus 1.625%.
(b) Default Rate of Interest. In the event of and so long as any
Default or Event of Default shall exist under any Loan Document, interest shall
be payable daily on the unpaid principal balance of the Note at a per annum rate
equal to the rate then applicable to the Note plus two percent (2%) per annum.
Interest shall continue to accrue on the Note after the filing by or against the
Borrower of any petition seeking any relief in bankruptcy or under any act or
law pertaining to insolvency or debtor relief, whether state, federal or
foreign.
(c) Interest Payment and Computation. Subject to prepayment and
acceleration of the Loan as provided herein and to the provisions of Article VII
hereof, interest on the unpaid principal balance of the Note shall be payable in
arrears on the Maturity Date. Interest and fees provided hereunder shall be
computed on the basis of a 360-day year and assessed for the actual number of
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days elapsed from the first day of the Interest Period applicable thereto to,
but not including, the last day thereof.
(d) Maximum Rate. In no contingency or event whatsoever shall the
aggregate of all amounts deemed interest hereunder or under the Note charged or
collected pursuant to the terms of this Agreement or pursuant to the Note exceed
the highest rate permissible under any Applicable Law which a court of competent
jurisdiction shall, in a final determination, deem applicable hereto. In the
event that such a court determines that the Lender has charged or received
interest hereunder in excess of the highest applicable rate, the rate in effect
hereunder shall automatically be reduced to the maximum rate permitted by
Applicable Law and the Lender shall promptly refund to the Borrower any interest
received by the Lender in excess of the maximum lawful rate or shall apply such
excess to the principal balance of the Obligations. It is the intent hereof that
the Borrower not pay nor contract to pay, and that the Lender not receive nor
contract to receive, directly or indirectly in any manner whatsoever, interest
in excess of that which may be paid by the Borrower under Applicable Law.
SECTION 2.8. Upfront Fee. In consideration of making the Loan under
this Agreement and in order to compensate the Lender for its obligations
hereunder, the Borrower shall pay to the Lender on the Closing Date an upfront
fee of $25,000. Such upfront fee shall be fully earned on the Closing Date and
shall not be refundable or rebatable by reason of prepayment, acceleration upon
Event of Default or any other circumstance and shall survive any termination of
this Agreement.
SECTION 2.9. Manner of Payment. Each payment (including prepayments) by
the Borrower on account of the principal of or interest on the Loan or of any
fee or other amounts payable to the Lender under this Agreement or the Note
shall be made not later than 1:00 p.m. (Charlotte time) on the date specified
for payment under this Agreement to the Lender, in immediately available funds
and shall be made without any set-off, counterclaim or deduction whatsoever. Any
payment received after such time but before 2:00 p.m. (Charlotte time) on such
day shall be deemed a payment on such date for the purposes of Section 8.1, but
for all other purposes shall be deemed to have been made on the next succeeding
Business Day. Subject to the definition of Interest Period, if any payment under
this Agreement or the Note shall be specified to be made upon a day which is not
a Business Day, it shall be made on the next succeeding day which is a Business
Day and such extension of time shall in such case be included in computing
interest, if any, in accordance with such payment.
SECTION 2.10. Changed Circumstances.
(a) Circumstances Affecting LIBOR Availability. If, with respect to any
Interest Period, the Lender shall determine that, by reason of circumstances
affecting the foreign exchange and interbank markets generally, deposits in
eurodollars in the applicable amounts are not being offered (through Telerate
Page 3750 or otherwise) for such Interest Period to the Lender, then the Lender
shall forthwith give notice thereof to the Borrower. Thereafter, until the
Lender notifies the Borrower that such circumstances no longer exist (which
notification shall be given promptly, but in
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any event within ten (10) days after the Lender obtains actual knowledge that
such circumstances no longer exist), the obligation of the Lender to make the
Loan bearing interest based on LIBOR shall be suspended, and the Loan shall bear
interest based on the Base Rate from and after the last day of the then current
Interest Period applicable to the Loan.
(b) Laws Affecting LIBOR Availability. If, after the date hereof, the
introduction of, or any change in, any Applicable Law or any change in the
interpretation or administration thereof by any Governmental Authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or compliance by the Lender with any request or directive (whether or
not having the force of law) of any such Governmental Authority, central bank or
comparable agency, shall make it unlawful or impossible for the Lender to honor
its obligations hereunder to make or maintain the Loan bearing interest based on
LIBOR, the Lender shall promptly give notice thereof to the Borrower.
Thereafter, until the Lender notifies the Borrower that such circumstances no
longer exist (which notification shall be given promptly, but in any event
within ten (10) days after the Lender obtains actual knowledge that such
circumstances no longer exist), (i) the obligation of the Lender to make the
Loan bearing interest based on LIBOR shall be suspended, and thereafter the Loan
shall bear interest based on the Base Rate from and after the last day of the
then current Interest Period applicable to the Loan and (ii) notwithstanding
clause (i) above, if the Lender may not lawfully continue to maintain the Loan
bearing interest based on LIBOR to the end of the then current Interest Period
applicable thereto, the interest rate applicable to the Loan shall immediately
be converted to the Base Rate.
(c) Increased Costs. If, after the date hereof, the introduction of, or
any change in, any Applicable Law, or in the interpretation or administration
thereof by any Governmental Authority, central bank or comparable agency charged
with the interpretation or administration thereof, or compliance by the Lender
with any request or directive (whether or not having the force of law) of such
Governmental Authority, central bank or comparable agency:
(i) shall subject the Lender to any tax, duty or other charge
with respect to the Loan or the Note or shall change the basis of taxation of
payments to the Lender of the principal of or interest on the Loan or the Note
or any other amounts due under this Agreement in respect thereof (except for
changes in the rate of tax on the overall net income of the Lender); or
(ii) shall impose, modify or deem applicable any reserve
(including, without limitation, any imposed by the Board of Governors of the
Federal Reserve System other than any change in the Reserve Requirements),
special deposit, insurance or capital or similar requirement against assets of,
deposits with or for the account of, or credit extended by the Lender or shall
impose on the Lender or the foreign exchange and interbank markets any other
condition affecting the Loan or the Note;
and the result of any of the foregoing is to increase the costs to the Lender of
maintaining the Loan bearing interest based on LIBOR or to reduce the yield or
amount of any sum received or receivable by the Lender under this Agreement or
under the Note in respect of a Loan bearing interest based on LIBOR, then the
Lender shall promptly notify the Borrower of such fact and demand compensation
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therefor and, within fifteen (15) days after such notice by the Lender, the
Borrower shall pay to the Lender such additional amount or amounts as will
compensate the Lender for such increased cost or reduction. The Lender will
promptly notify the Borrower of any event of which it has knowledge which will
entitle the Lender to compensation pursuant to this Section 2.10(c); provided,
that the Lender shall incur no liability whatsoever to the Borrower in the event
it fails to do so. The Lender shall supply the Borrower with a certificate
setting forth the basis for determining such additional amount or amounts
necessary to compensate the Lender.
(d) Reserve Requirements. In the event that the Lender shall determine
at any time that, by reason of Regulation D of the Board of Governors of the
Federal Reserve System (or any successor regulation), the Lender is required to
maintain Reserve Requirements during any period that the Loan bears interest
based on LIBOR, then the Lender shall promptly notify the Borrower by written
notice (or telephonic notice promptly confirmed in writing) specifying the
additional amounts reasonably determined by the Lender to be required to
indemnify the Lender against the cost of maintaining such Reserve Requirements
(such written notice to provide a computation of such additional amounts) and
the Borrower shall directly pay to the Lender such specified amounts as
additional interest hereunder.
SECTION 2.11. Indemnity. The Borrower hereby indemnifies the Lender
against any loss or expense actually incurred by the Lender in connection with
the Lender's obtaining, liquidating or employing deposits or other funds
acquired to effect, fund or maintain the Loan (a) as a consequence of any
failure by the Borrower to make any payment when due of any amount due hereunder
in connection with the Loan or (b) due to any payment or prepayment of any Loan
on a date other than the last day of the Interest Period therefor. The Lender's
calculations of any such loss or expense shall be furnished to the Borrower.
SECTION 2.12. Capital Requirements. If, after the date of this
Agreement, either (a) the introduction of, or any change in, or in the
interpretation of, any Applicable Law or (b) compliance with any guideline or
request from any central bank or comparable agency or other Governmental
Authority (whether or not having the force of law), has the effect of reducing
the rate of return on the capital of, or has affected the amount of capital
required to be maintained by, the Lender or any corporation controlling the
Lender as a consequence of, or with reference to its Commitment and other
commitments of this type, below the rate which the Lender or such other
corporation could have achieved but for such introduction, change or compliance,
then within fifteen (15) days after written demand by the Lender, the Borrower
shall pay to the Lender from time to time as specified by the Lender additional
amounts sufficient to compensate the Lender or other corporation for such
reduction. A certificate as to such amounts shall be submitted to the Borrower.
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SECTION 2.13. Taxes.
(a) Payments Free and Clear. Any and all payments by the Borrower
hereunder or under the Note shall be made free and clear of and without
deduction for any and all present or future taxes, levies, imposts, deductions,
charges or withholding, and all liabilities with respect thereto excluding, in
the case of the Lender, income and franchise taxes (all such non-excluded taxes,
levies, imposts, deductions, charges, withholdings and liabilities being
hereinafter referred to as "Taxes"). If the Borrower shall be required by law to
deduct any Taxes from or in respect of any sum payable hereunder or under the
Note to the Lender, (A) the sum payable shall be increased as may be necessary
so that after making all required deductions (including deductions applicable to
additional sums payable under this Section 2.13) the Lender receives an amount
equal to the amount such party would have received had no such deductions been
made, (B) the Borrower shall make such deductions, (C) the Borrower shall pay
the full amount deducted to the relevant taxing authority or other authority in
accordance with applicable law, and (D) the Borrower shall deliver to the Lender
evidence of such payment to the relevant taxing authority or other authority in
the manner provided in Section 2.13(d).
(b) Stamp and Other Taxes. In addition, the Borrower shall pay any
present or future stamp, registration, recordation or documentary taxes or any
other similar fees or charges or excise or property taxes (other than income,
franchise, excise and property taxes to which the Lender would have been subject
in the absence of this Agreement and the provision for security in connection
with the execution of this Agreement), levies of the United States or any state
or political subdivision thereof or any applicable foreign jurisdiction which
arise from any payment made hereunder or from the execution, delivery or
registration of, or otherwise with respect to, this Agreement, the Loan, the
other Loan Documents, or the perfection of any rights or security interest in
respect thereto (hereinafter referred to as "Other Taxes").
(c) Indemnity. The Borrower shall indemnify the Lender for the full
amount of Taxes and Other Taxes (including, without limitation, any Taxes and
Other Taxes imposed by any jurisdiction on amounts payable under this Section
2.13) paid by the Lender and any liability (including penalties, interest and
expenses) arising therefrom or with respect thereto; provided, that this
indemnification shall not apply to any Taxes, Other Taxes or related liability
arising as the result of the gross negligence or willful misconduct of the
Lender. Such indemnification shall be made within thirty (30) days from the date
the Lender makes written demand therefor.
(d) Evidence of Payment. Within thirty (30) days after the date of any
payment of Taxes or Other Taxes, the Borrower shall furnish to the Lender the
original or a certified copy of a receipt evidencing payment thereof or other
evidence of payment reasonably satisfactory to the Lender.
(e) Survival. Without prejudice to the survival of any other agreement
of the Borrower hereunder, the agreements and obligations of the Borrower
contained in this Section 2.13 shall survive the payment in full of the
Obligations and the termination of the Commitment.
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ARTICLE III
CLOSING; CONDITIONS TO CLOSING AND INITIAL LOAN
SECTION 3.1. Closing. The closing shall take place at the offices of
Xxxxxxx Xxxxxxxxx Xxxxxxx & Xxxxxxx, L.L.P., 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx,
Xxxxx Xxxxxxxx at 10:00 a.m. on November 26, 1997, or on such other date as the
parties hereto shall mutually agree.
SECTION 3.2. Conditions to Closing and Initial Loan. The obligation of
the Lender to close this Agreement and to extend the Loan is subject to the
satisfaction of each of the following conditions:
(a) Loan Documents. The Loan Documents shall have been duly executed by
Borrower and delivered to the Lender.
(b) General Certificate. The Borrower shall have delivered to the
Lender a general certificate as to the due organization and authority of the
Borrower and the incumbency of its officers in form and substance satisfactory
to the Lender.
(c) Officer's Certificate. The Lender shall have received a certificate
from the chief executive officer or chief financial officer of the Borrower, in
form and substance satisfactory to the Lender, to the effect that all
representations and warranties of the Borrower contained in this Agreement and
the other Loan Documents are true, correct and complete; that the Borrower is
not in violation of any of the covenants contained in this Agreement and the
other Loan Documents; that, after giving effect to the transactions contemplated
by this Agreement, no Default or Event of Default has occurred and is
continuing; and that the Borrower has satisfied each of the closing conditions.
(d) Legal Opinion. The Lender shall have received the legal opinion of
counsel to the Borrower in form and substance acceptable to the Lender.
(e) Fees and Expenses. The Lender shall have received all fees, charges
and other expenses (including, without limitation, legal fees and expenses) due
in connection with the transactions contemplated hereby.
(f) Other Documents, Instruments and Assurances. The Lender shall have
received such other documents, instruments and assurances as may be deemed
reasonably necessary by the Lender or its counsel in connection with the
transactions contemplated hereby.
SECTION 3.3. Waiver of Conditions Precedent. If the Lender makes the
Loan or advance hereunder prior to the fulfillment of any of the conditions
precedent set forth in this Article III, the making of such Loan or advance
shall constitute only an extension of time for the fulfillment of such condition
and not a waiver thereof, and the Borrower shall thereafter use its best efforts
to fulfill each such condition promptly.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE BORROWER
SECTION 4.1. Representations and Warranties. To induce the Lender to
enter into this Agreement and to extend the Loan, the Borrower hereby represents
and warrants to the Lender that each and every representation and warranty of
the Borrower set forth in Article VI of the Revolving Credit Agreement is true,
correct and complete in all material respects.
SECTION 4.2. Survival of Representations and Warranties, Etc. All
representations and warranties made under this Agreement shall be made or deemed
to be made at and as of the Closing Date, shall survive the Closing Date and
shall not be waived by the execution and delivery of this Agreement, any
investigation made by or on behalf of the Lender or any borrowing hereunder.
ARTICLE V
FINANCIAL INFORMATION AND NOTICES
Until the Loan has been finally and indefeasibly paid and satisfied in
full and the Commitment terminated, the Borrower will furnish or cause to be
furnished to the Lender each and every financial statement, certificate or other
document or instrument required to be delivered to the Lenders pursuant to
Article VII of the Revolving Credit Agreement. So long as the Lender is the
"Agent" under the Revolving Credit Agreement, the Borrower's furnishing of all
such financial statements, certificates and other documents or instruments to
the Agent which are required to be delivered to the Agent under the Revolving
Credit Agreement shall constitute delivery to the Lender under this Article V.
ARTICLE VI
COVENANTS
Until the Loan has been finally and indefeasibly paid and satisfied in
full and the Commitment terminated, the Borrower will, and will cause each of
its Subsidiaries to comply with each and every covenant and agreement set forth
in Articles VIII, IX, and X of the Revolving Credit Agreement.
ARTICLE VII
DEFAULT AND REMEDIES
SECTION 7.1. Events of Default. Each of the following shall constitute
an Event of Default, whatever the reason for such event and whether it shall be
voluntary or involuntary or be
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effected by operation of law or pursuant to any judgment or order of any court
or any order, rule or regulation of any Governmental Authority or otherwise:
(a) Default in Payment. (i) The Borrower shall default in any payment
of principal of the Loan or the Note when and as due (whether at maturity, by
reason of acceleration or otherwise), (ii) the Borrower shall fail to make any
payment of interest on the Loan or the Note or any fee due hereunder within
three (3) Business Day after the same becomes due and payable or (iii) the
Borrower shall fail to make any payment of any other amount due hereunder or
under any other Loan Document within five (5) Business Days after written notice
that such amount has become due and payable has been given to the Borrower by
the Bank.
(b) Misrepresentation. Any representation or warranty made by the
Borrower under this Agreement, any Loan Document or any amendment hereto or
thereto, shall prove to be incorrect or misleading in any material respect as of
the date made.
(c) Cross-Default to Revolving Credit Agreement. An Event of Default
shall have occurred under the Revolving Credit Agreement.
SECTION 7.2. Remedies. Upon the occurrence of an Event of Default, the
Lender may, by notice to the Borrower:
(a) Acceleration; Termination of Credit Facility. Declare the principal
of and interest on the Loan and the Note at the time outstanding, and all other
amounts owed to the Lender under this Agreement or any of the other Loan
Documents and all other Obligations, to be forthwith due and payable, whereupon
the same shall immediately become due and payable without presentment, demand,
protest or other notice of any kind, all of which are expressly waived, anything
in this Agreement or the other Loan Documents to the contrary notwithstanding,
and terminate the Commitment; provided, that upon the occurrence of an Event of
Default specified in Section 12.1(g) or (h) of the Revolving Credit Agreement,
the Commitment shall be automatically terminated and all Obligations shall
automatically become due and payable.
(b) Rights of Collection. Exercise all of its other rights and remedies
under this Agreement, the other Loan Documents and Applicable Law, in order to
satisfy all of the Borrower's Obligations.
SECTION 7.3. Rights and Remedies Cumulative; Non-Waiver; etc. The
enumeration of the rights and remedies of the Lender set forth in this Agreement
is not intended to be exhaustive and the exercise by the Lender of any right or
remedy shall not preclude the exercise of any other rights or remedies, all of
which shall be cumulative, and shall be in addition to any other right or remedy
given hereunder or under the Loan Documents or that may now or hereafter exist
in law or in equity or by suit or otherwise. No delay or failure to take action
on the part of the Lender in exercising any right, power or privilege shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such right, power or privilege preclude other or further exercise thereof or the
exercise of any other right, power or privilege or be construed to be a waiver
of any
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Event of Default. No course of dealing between the Borrower and the Lender or
its agents or employees shall be effective to change, modify or discharge any
provision of this Agreement or any of the other Loan Documents or to constitute
a waiver of any Event of Default.
SECTION 7.4. Set-off. Except to the extent prohibited by law, in
addition to any rights now or hereafter granted under Applicable Law and not by
way of limitation of any such rights, upon and after the occurrence of any Event
of Default and during the continuance thereof, the Lender and any assignee of
the Lender in accordance with this Agreement are hereby authorized by the
Borrower at any time or from time to time, without notice to the Borrower or to
any other Person, any such notice being hereby expressly waived, to set off and
to appropriate and to apply any and all deposits (general or special, time or
demand, including, but not limited to, indebtedness evidenced by certificates of
deposit, whether matured or unmatured, excluding government securities required
by Applicable Law to be held as security for worker's compensation and similar
claims) and any other indebtedness at any time held or owing by the Lender, or
any such assignee or participant to or for the credit or the account of the
Borrower against and on account of the Obligations irrespective of whether or
not (a) the Lender shall have made any demand under this Agreement or any of the
other Loan Documents or (b) the Lender shall have declared any or all of the
Obligations to be due and payable as permitted by Section 7.2.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1. Notices.
(a) Method of Communication. Except as otherwise provided in this
Agreement, all notices and communications hereunder shall be in writing, or by
telephone subsequently confirmed in writing. Any notice shall be effective if
delivered by hand delivery or sent via telecopy, recognized overnight courier
service or certified mail, return receipt requested, and shall be presumed to be
received by a party hereto (i) on the date of delivery if delivered by hand or
sent by telecopy, (ii) on the next Business Day if sent by recognized overnight
courier service and (iii) on the fifth (5th) Business Day following the date
sent by certified mail, return receipt requested. A telephonic notice to the
Lender as understood by the Lender will be deemed to be the controlling and
proper notice in the event of a discrepancy with or failure to receive a
confirming written notice.
(b) Addresses for Notices. Notices to any party shall be sent to it at
the following addresses, or any other address as to which all the other parties
are notified in writing.
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If to the Borrower: Rural/Metro Corporation
0000 X. Xxxxxx Xxxxxx, Xxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
and
Attention: Xxxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
With copies to: O'Connor, Cavanagh, Anderson,
Westover, Xxxxxxxxxxxxx & Xxxxxxxx
Xxx Xxxx Xxxxxxxxx Xxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxx X. Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
and
Attention: Xxxx X. Xxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to the Lender: First Union National Bank
One First Union Center
000 Xxxxx Xxxxxxx Xxxxxx, XX-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Syndication Agency
Services
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
SECTION 8.2. Expenses. The Borrower will pay all reasonable
out-of-pocket expenses of the Lender in connection with: (a) the preparation,
execution and delivery of this Agreement and each of the other Loan Documents,
whenever the same shall be executed and delivered, including all reasonable due
diligence expenses, reasonable appraiser's fees, reasonable search fees,
recording fees, taxes and reasonable fees and disbursements of counsel for the
Lender; (b) the preparation, execution and delivery of any waiver, amendment or
consent by the Lender relating to this Agreement or any of the other Loan
Documents including reasonable fees and disbursements of counsel for the Lender,
reasonable search fees, reasonable appraiser's fees, recording fees and taxes
imposed in connection therewith; and (c) consulting with one or more Persons,
including appraisers, accountants, engineers and attorneys, concerning or
related to the nature, scope or value of any right or remedy of the Lender
hereunder or under any of the other Loan Documents, including any review of
factual matters in connection therewith, which expenses shall include the
reasonable fees and disbursements of such Persons. In addition, the Borrower
will
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pay all reasonable out-of-pocket expenses of the Lender in connection with
prosecuting or defending any claim in any way arising out of, related to,
connected with, or enforcing any provision of, this Agreement or any of the
other Loan Documents, which expenses shall include the reasonable fees and
disbursements of counsel (including the allocated cost of in-house counsel) and
of experts and other consultants retained by the Lender.
SECTION 8.3. Governing Law. THIS AGREEMENT, THE NOTE AND THE OTHER LOAN
DOCUMENTS, UNLESS OTHERWISE EXPRESSLY SET FORTH THEREIN, SHALL BE GOVERNED BY,
CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NORTH
CAROLINA, WITHOUT REFERENCE TO THE CONFLICTS OR CHOICE OF LAW PRINCIPLES
THEREOF.
SECTION 8.4. Consent to Jurisdiction. The Borrower hereby irrevocably
consents to the personal jurisdiction of the state and federal courts located in
Mecklenburg County, North Carolina, in any action, claim or other proceeding
arising out of any dispute in connection with this Agreement, the Note and the
other Loan Documents, any rights or obligations hereunder or thereunder, or the
performance of such rights and obligations. The Borrower hereby irrevocably
consents to the service of a summons and complaint and other process in any
action, claim or proceeding brought by the Lender in connection with this
Agreement, the Note or the other Loan Documents, any rights or obligations
hereunder or thereunder, or the performance of such rights and obligations, on
behalf of itself or its property, by mailing of copies thereof by registered or
certified mail, postage prepaid, to the Borrower at its address for notice in
Section 8.1. Nothing in this Section 8.5 shall affect the right of the Lender to
serve legal process in any other manner permitted by Applicable Law or affect
the right of the Lender to bring any action or proceeding against the Borrower
or its properties in the courts of any other jurisdictions.
SECTION 8.5. Arbitration.
(a) Binding Arbitration. Upon demand of any party, whether made before
or after institution of any judicial proceeding, any dispute, claim or
controversy arising out of, connected with or relating to the Note or any other
Loan Documents ("Disputes"), between or among parties to the Note or any other
Loan Document shall be resolved by binding arbitration as provided herein.
Institution of a judicial proceeding by a party does not waive the right of that
party to demand arbitration hereunder. Disputes may include, without limitation,
tort claims, counterclaims, claims brought as class actions, claims arising from
Loan Documents executed in the future, or claims concerning any aspect of the
past, present or future relationships arising out of or connected with the Loan
Documents. Arbitration shall be conducted under and governed by the Commercial
Financial Disputes Arbitration Rules (the "Arbitration Rules") of the American
Arbitration Association and Title 9 of the U.S. Code. All arbitration hearings
shall be conducted in Charlotte, North Carolina. The expedited procedures set
forth in Rule 51, et seq. of the Arbitration Rules shall be applicable to claims
of less than $1,000,000. All applicable statutes of limitation shall apply to
any Dispute. A judgment upon the award may be entered in any court having
jurisdiction. The panel from which all arbitrators are selected shall be
comprised of licensed attorneys. The single arbitrator selected for
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expedited procedure shall be a retired judge from the highest court of general
jurisdiction, state or federal, of the state where the hearing will be
conducted. The arbitrators shall be appointed as provided in the Arbitration
Rules.
(b) Preservation of Certain Remedies. Notwithstanding the preceding
binding arbitration provisions, the parties hereto and to the other Loan
Documents preserve, without diminution, certain remedies that such Persons may
employ or exercise freely, either alone or in conjunction with or during a
Dispute. Each such Person shall have and hereby reserves the right to proceed in
any court of proper jurisdiction or by self help to exercise or prosecute the
following remedies: (i) all rights to foreclose against any real or personal
property or other security by exercising a power of sale granted in the Loan
Documents or under applicable law or by judicial foreclosure and sale, (ii) all
rights of self help including peaceful occupation of property and collection of
rents, set off, and peaceful possession of property, (iii) obtaining provisional
or ancillary remedies including injunctive relief, sequestration, garnishment,
attachment, appointment of receiver and filing an involuntary bankruptcy
proceeding, and (iv) when applicable, a judgment by confession of judgment.
Preservation of these remedies does not limit the power of an arbitrator to
grant similar remedies that may be requested by a party in a Dispute.
SECTION 8.6. Waiver of Jury Trial. TO THE EXTENT PERMITTED BY
APPLICABLE LAW, THE LENDER AND THE BORROWER HEREBY IRREVOCABLY WAIVE THEIR
RESPECTIVE RIGHTS TO A JURY TRIAL WITH RESPECT TO ANY ACTION, CLAIM OR OTHER
PROCEEDING ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS AGREEMENT, THE
NOTE OR THE OTHER LOAN DOCUMENTS, ANY RIGHTS OR OBLIGATIONS HEREUNDER OR
THEREUNDER, OR THE PERFORMANCE OF SUCH RIGHTS AND OBLIGATIONS.
SECTION 8.7. Reversal of Payments. To the extent the Borrower makes a
payment or payments to the Lender or the Lender receives any payment or proceeds
of the collateral which payments or proceeds or any part thereof are
subsequently invalidated, declared to be fraudulent or preferential, set aside
and/or required to be repaid to a trustee, receiver or any other party under any
bankruptcy law, state or federal law, common law or equitable cause, then, to
the extent of such payment or proceeds repaid, the Obligations or part thereof
intended to be satisfied shall be revived and continued in full force and effect
as if such payment or proceeds had not been received by the Lender.
SECTION 8.8. Injunctive Relief. The Borrower recognizes that, in the
event the Borrower fails to perform, observe or discharge any of its obligations
or liabilities under this Agreement, any remedy of law may prove to be
inadequate relief to the Lender. Therefore, the Borrower agrees that the Lender,
at the Lender's option, shall be entitled to temporary and permanent injunctive
relief in any such case without the necessity of proving actual damages.
SECTION 8.9. Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the Borrower and the Lender, all future holders
of the Note, and their
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respective successors and assigns, except that the Borrower shall not assign or
transfer any of its rights or obligations under this Agreement without the prior
written consent of the Lender.
SECTION 8.10. Performance of Duties. The Borrower's obligations under
this Agreement and each of the Loan Documents shall be performed by the Borrower
at its sole cost and expense.
SECTION 8.11. Indemnification. The Borrower agrees to reimburse the
Lender for all reasonable out-of-pocket costs and expenses, including all
reasonable counsel (including the allocated cost of in-house counsel),
appraisal, or other expert or consultant fees and disbursements incurred, and to
indemnify and hold the Lender harmless from and against all losses suffered by
the Lender in connection with (a) the exercise by the Lender of any right or
remedy granted to it under this Agreement or any of the other Loan Documents,
(b) any claim, and the prosecution or defense thereof, arising out of or in any
way connected with this Agreement or any of the other Loan Documents, and (c)
the collection or enforcement of the Obligations or any of them; provided, that
the Borrower shall not be obligated to reimburse the Lender for costs and
expenses, or indemnify the Lender for any loss, resulting from the gross
negligence or willful misconduct of the Lender.
SECTION 8.12. All Powers Coupled with Interest. All powers of attorney
and other authorizations granted to the Lender and any Persons designated by the
Lender pursuant to any provisions of this Agreement or any of the other Loan
Documents shall be deemed coupled with an interest and shall be irrevocable so
long as any of the Obligations remain unpaid or unsatisfied or the Commitment
has not been terminated.
SECTION 8.13. Survival of Indemnities. Notwithstanding any termination
of this Agreement, the indemnities to which the Lender is entitled under the
provisions of this Article VIII and any other provision of this Agreement and
the Loan Documents shall continue in full force and effect and shall protect the
Lender against events arising after such termination as well as before.
SECTION 8.14. Titles and Captions. Titles and captions of Articles,
Sections and subsections in this Agreement are for convenience only, and neither
limit nor amplify the provisions of this Agreement.
SECTION 8.15. Severability of Provisions. Any provision of this
Agreement or any other Loan Document which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective only to the extent
of such prohibition or unenforceability without invalidating the remainder of
such provision or the remaining provisions hereof or thereof or affecting the
validity or enforceability of such provision in any other jurisdiction.
SECTION 8.16. Counterparts. This Agreement may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and shall be
binding upon all parties, their successors and assigns, and all of which taken
together shall constitute one and the same agreement.
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SECTION 8.17. Term of Agreement. This Agreement shall remain in effect
from the Closing Date through and including the date upon which all Obligations
shall have been indefeasibly and irrevocably paid and satisfied in full. No
termination of this Agreement shall affect the rights and obligations of the
parties hereto arising prior to such termination.
SECTION 8.18. Independent Effect of Covenants. The Borrower expressly
acknowledges and agrees that each covenant contained herein and in Articles
VIII, IX and X of the Revolving Credit Agreement shall be given independent
effect. Accordingly, the Borrower and any other applicable Person shall not
engage in any transaction or other act otherwise permitted under any covenant
contained herein or in Articles VIII, IX and X of the Revolving Credit Agreement
if, before or after giving effect to such transaction or act, the Borrower or
any other applicable Person shall or would be in breach of any other covenant
contained herein or in Articles VIII, IX and X of the Revolving Credit
Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers, all as of the day and year first
written above.
RURAL/METRO CORPORATION
By: ____________________________________
Name: ____________________________________
Title: ____________________________________
FIRST UNION NATIONAL BANK
By: ____________________________________
Name: ____________________________________
Title: ____________________________________
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