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EXHIBIT 4.12
AMENDMENT AGREEMENT NO. 3
TO AMENDED AND RESTATED
REVOLVING CREDIT AND REIMBURSEMENT AGREEMENT
THIS AMENDMENT AGREEMENT (this "Amendment Agreement") is made and
entered into as of this 10th day of February, 1999, by and among THE WACKENHUT
CORPORATION, a Florida corporation (herein called the "Borrower"), NATIONSBANK
NATIONAL ASSOCIATION (the "Agent"), as Agent for the lenders (the "Lenders")
party to the Amended and Restated Revolving Credit and Reimbursement Agreement
dated December 30, 1997, as amended by Amendment Agreement No. 1 dated as of
March 12, 1998, and as further amended by Amendment Agreement No. 2 dated as of
August 7, 1998, among such Lenders, Borrower and the Agent (the "Agreement") and
the Lenders whose names are subscribed hereto.
W I T N E S S E T H:
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WHEREAS, the Borrower, the Agent and the Lenders have entered into the
Agreement pursuant to which the Lenders have agreed to make revolving loans to
the Borrower in the aggregate principal amount of up to $40,000,000 as evidenced
by the Notes (as defined in the Agreement) and to issue Letters of Credit for
the benefit of the Borrower; and
WHEREAS, as a condition to the making of the loans pursuant to the
Agreement the Lenders have required that all wholly-owned Subsidiaries of the
Borrower guarantee payment of all Obligations of the Borrower arising under the
Agreement; and
WHEREAS, the Borrower has requested that the Agreement be amended by
increasing the Total Revolving Credit Commitment to $65,000,000 and the Agent
and the Lenders have agreed, subject to the terms and conditions hereof, to make
such amendment, as provided herein;
NOW, THEREFORE, the Borrower, the Agent and the Lenders do hereby agree
as follows:
1. DEFINITIONS. The term "Agreement" as used herein and in the Loan
Documents (as defined in the Agreement) shall mean the Agreement as hereinafter
amended and modified. Unless the context otherwise requires, all terms used
herein without definition shall have the definition provided therefor in the
Agreement.
2. AMENDMENT. Subject to the conditions set forth herein, the Agreement
is hereby amended, effective as of the date hereof, as follows:
(a) The definition of "Applicable Margin" is hereby amended by
deleting the table in such definition and inserting in lieu thereof the
following table:
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Tier Fixed Charges Coverage Ratio Applicable Margin Applicable Unused Fee
=========== ============================================== ======================== ==============================
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I Greater than 2.00 to 1.00 0.625% 0.200%
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II Greater than 1.75 to 1.00 0.875% 0.250%
and equal to or less than 2.00 to 1.00
=========== ============================================== ======================== ==============================
III Equal to or Greater than 1.50 to 1.00 1.250% 0.300%
and equal to or less than 1.75 to 1.00
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(b) The definition of "Joint Venture Investment" is hereby
amended in its entirety so that as amended it reads as follows:
"Joint Venture Investment" means any Investment in an amount
not to exceed $10,000,000 in any Fiscal Year by the Borrower with any
other Person or Persons which Investment is made in order to permit the
Borrower to make bids with respect to contracts for the providing of
services by the Borrower of the type provided by the Borrower and its
Subsidiaries as of the Closing Date."
(c) The definition of "Net Income Available for Fixed Charges"
is hereby amended by adding the following phrase to the end of such definition:
"; PROVIDED, HOWEVER, that with respect to an acquisition of a
Subsidiary that is accounted for as a "purchase", for the four
Four-Quarter Periods ending next following the date of such
acquisition, all components of Net Income Available for Fixed Charges
shall include the results of operations of the Person or assets so
acquired, which amounts shall be determined on an historical pro forma
basis as if such acquisition had been consummated as a "pooling of
interests"."
(d) The definition of "Restricted Investment" is hereby
amended by inserting a new paragraph (g) that reads "(g) Joint Venture
Investments" and thereby causing existing paragraph (g) to be paragraph (h).
(e) The definition of "Total Revolving Credit Commitment" is
hereby amended in its entirety so that as amended it reads as follows:
"Total Revolving Credit Commitment" means an amount equal to
(i) $50,000,000 or (ii) at such time as EXHIBIT A hereto is amended by
the entering into of an Amendment Agreement pursuant to SECTION 2.18
hereof, an amount equal to $65,000,000, as such amounts are reduced
from time to time in accordance with SECTION 2.10."
(f) EXHIBIT A is hereby deleted in its entirety and the
EXHIBIT A attached hereto is inserted in lieu thereof;
(g) EXHIBIT J attached hereto is hereby added to the Agreement
as EXHIBIT J;
(h) A new SECTION 2.18 is hereby added to read as follows:
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"2.18 AMENDMENT AGREEMENT. The Borrower, the Agent and an additional lender or
lenders may enter into an Amendment Agreement without further approval of the
Lenders substantially in the form of EXHIBIT J attached hereto and incorporated
herein by reference pursuant to which the additional lender or lenders agree to
provide the Borrower with Revolving Loans of up to $15,000,000 thereby
increasing the Total Revolving Credit Commitment to $65,000,000."
(i) SECTION 7.07(b) is hereby amended by deleting the number
"$15,000,000" at the end of such subsection and inserting in lieu thereof the
number "$30,000,000".
(j) SECTION 7.11(a)(v) is hereby amended by deleting the phrase
"other than any Joint Venture Investments".
(k) SECTION 7.11(b) is hereby amended in its entirety so that
as amended it shall read as follows:
"(b) The Borrower will not make any Joint Venture Investment in
any Fiscal Year if after giving effect thereto the aggregate value of all Joint
Venture Investments of the Borrower and its Subsidiaries would exceed
$10,000,000 in such Fiscal Year."
(l) SECTIONS 7.17(a)(1), 7.17(a)(2) and 7.17(a)(3) are hereby
amended by inserting the words "and consolidating" following the word
"consolidated" appearing in subsection (i) of each of the foregoing sections
thereof.
3. SUBSIDIARY CONSENTS. Each Subsidiary of the Borrower that has
delivered a Guaranty to the Agent has joined in the execution of this Amendment
Agreement for the purpose of (i) agreeing to the amendment to the Agreement and
(ii) confirming its guarantee of payment of all the Obligations.
4. REPRESENTATIONS AND WARRANTIES. The Borrower hereby
represents and warrants that:
(a) The representations and warranties made by Borrower in
Article VI of the Agreement are true on and as of the date hereof;
(b) There has been no material adverse change in the condition,
financial or otherwise, of the Borrower and its Subsidiaries since the
date of the most recent financial reports of the Borrower received by
each Lender under Section 7.17 thereof, other than changes in the
ordinary course of business, none of which has been a material adverse
change;
(c) The business and properties of the Borrower and its
Subsidiaries are not and have not been adversely affected in any
substantial way as the result of any
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fire, explosion, earthquake, accident, strike, lockout, combination of
workers, flood, embargo, riot, activities of armed forces, war or acts
of God or the public enemy, or cancellation or loss of any major
contracts; and
(d) No event has occurred and no condition exists which, upon
the consummation of the transaction contemplated hereby, constitutes a
Default or an Event of Default on the part of the Borrower under the
Agreement, the Notes or any other Loan Document either immediately or
with the lapse of time or the giving of notice, or both.
5. CONDITIONS. This Amendment Agreement shall become effective
upon the Borrower delivering to the Agent of the following:
(a) Five (5) counterparts of this Amendment Agreement duly
executed by the Borrower and consented to by each of the Subsidiaries
and receipt by the Agent of all fees and expenses due in connection
with this Amendment Agreement.
(b) Notes executed in favor of each Lender in the amount of its
Revolving Credit Commitment.
(c) An opinion of counsel for the Borrower in form and content
acceptable to the Agent.
(d) Copies of resolution of the Board of Directors of each of
the Borrower and its Subsidiaries authorizing the transaction
contemplated by this Amendment Agreement; and
(e) Such other documents and instruments as the Agent may
reasonably require.
6. ENTIRE AGREEMENT. This Amendment Agreement sets forth the entire
understanding and agreement of the parties hereto in relation to the subject
matter hereof and supersedes any prior negotiations and agreements among the
parties relative to such subject matter. No promise, conditions, representation
or warranty, express or implied, not herein set forth shall bind any party
hereto, and no one of them has relied on any such promise, condition,
representation or warranty. Each of the parties hereto acknowledges that, except
as in this Amendment Agreement otherwise expressly stated, no representations,
warranties or commitments, express or implied, have been made by any other party
to the other. None of the terms or conditions of this Amendment Agreement may be
changed, modified, waived or canceled orally or otherwise, except by writing, in
the manner provided in the Agreement, specifying such change, modification,
waiver or cancellation of such terms or conditions, or of any proceeding or
succeeding breach thereof.
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7. FULL FORCE AND EFFECT OF AGREEMENT. Except as hereby
specifically amended, modified or supplemented, the Agreement and all of the
other Loan Documents are hereby confirmed and ratified in all respects and shall
remain in full force and effect according to their respective terms.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment
Agreement to be duly executed by their duly authorized officers, all as of the
day and year first above written.
BORROWER:
THE WACKENHUT CORPORATION
WITNESS:
/s/ XXXXXXX XXXXXXX
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By: /s/ XXXXXXX X. XXXXX
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Name: Xxxxxxx X. Xxxxx
Title: Vice President
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GUARANTORS:
AMERICAN GUARD AND ALERT, INCORPORATED
TITANIA ADVERTISING, INCORPORATED
TITANIA INSURANCE COMPANY OF AMERICA
TUHNEKCAW, INC.
WACKENHUT AIRLINE SERVICES, INC.
WACKENHUT EDUCATIONAL SERVICES, INC.
WACKENHUT FINANCIAL, INC.
WACKENHUT INTERNATIONAL, INCORPORATED
WACKENHUT OF NEVADA, INC.
WACKENHUT PUERTO RICO, INC.
WACKENHUT SERVICES, INCORPORATED
WACKENHUT SERVICES LIMITED LIABILITY
COMPANY
WACKENHUT RESOURCES, INCORPORATED
KING STAFFING, INC.
SOUTHEASTERN RESOURCES, INC.
WORKFORCE ALTERNATIVE, INC.
KING TEMPORARY STAFFING, INC.
WRI II, INC.
PROFESSIONAL EMPLOYEE MANAGEMENT, INC.
WITNESS:
/s/ XXXXXXX XXXXXXX By: /s/ XXXXXXX X. XXXXX
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Name: Xxxxxxx X. Xxxxx
Title: Vice President
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NATIONSBANK, NATIONAL ASSOCIATION,
as Agent for the Lenders
By: /s/ XXXX X. XXXXXXXX
--------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Senior Vice President
NATIONSBANK, NATIONAL ASSOCIATION,
as lender
By: /s/ XXXX X. XXXXXXXX
--------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Senior Vice President
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SCOTIABANC INC.
By: /s/ XXXXX X. XXXXXXX
--------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Relationship Manager
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XXXXXXXX XXXX, XXXXX XXXXXXX, N.A.
By: /s/ XXXXXXX X. XXXXXXXX
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Name: Xxxxxxx X. Xxxxxxxx
Title: Assistant Vice President
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EXHIBIT A
Applicable Commitment Percentages
APPLICABLE
REVOLVING CREDIT COMMITMENT
LENDER COMMITMENT PERCENTAGE
------ ---------------- ----------
NationsBank, N.A. $20,000,000
Scotiabanc Inc. $15,000,000
SunTrust Bank, South Florida, N.A. $15,000,000
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Total $50,000,000
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EXHIBIT J
Form of Amendment Agreement
AMENDMENT AGREEMENT NO. ____
TO AMENDED AND RESTATED
REVOLVING CREDIT AND REIMBURSEMENT AGREEMENT
THIS AMENDMENT AGREEMENT (this "Amendment Agreement") is made and
entered into as of this ____ day of __________, ______, by and among THE
WACKENHUT CORPORATION, a Florida corporation (herein called the "Borrower"),
NATIONSBANK NATIONAL ASSOCIATION (the "Agent"), as Agent for the lenders (the
"Lenders") party to the Amended and Restated Revolving Credit and Reimbursement
Agreement dated December 30, 1997, as amended by Amendment Agreement No. 1 dated
as of March 12, 1998, Amendment Agreement No. 2 dated as of August 7, 1998, and
Amendment Agreement No. 3 dated as of February 10, 1999, among such Lenders,
Borrower and the Agent (the "Agreement") and the Lender party to this Amendment
Agreement.
W I T N E S S E T H:
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WHEREAS, the Borrower, the Agent, NationsBank, N.A., Scotiabanc Inc. and
SunTrust Bank, South Florida, N.A. (the "Existing Lenders") have entered into
the Agreement pursuant to which the Existing Lenders have agreed to make
revolving loans to the Borrower in the aggregate principal amount of up to
$50,000,000 as evidenced by the Notes (as defined in the Agreement) and to issue
Letters of Credit for the benefit of the Borrower; and
WHEREAS, ________________ (the "New Lender") has agreed to provide the
Borrower Revolving Loans up to $15,000,000 thereby increasing the Total
Revolving Credit Commitment to $65,000,000 and the parties hereto desire to
amend the Agreement in the manner herein set forth effective as of the date
hereof;
NOW, THEREFORE, the Borrower, the Agent and the New Lender do hereby
agree as follows:
1. DEFINITIONS. The term "Agreement" as used herein and in the Loan
Documents (as defined in the Agreement) shall mean the Agreement as hereby
amended and modified. Unless the context otherwise requires, all terms used
herein without definition shall have the definition provided therefor in the
Agreement.
2. AMENDMENTS. Subject to the conditions hereof, the Agreement is hereby
amended, effective as of the date hereof, by deleting EXHIBIT A and inserting in
lieu thereof EXHIBIT A attached hereto, and the New Lender agrees by the
execution of this Amendment Agreement that it shall be a party to the Agreement
and shall provide to the Borrower its Revolving Credit Commitment.
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3. REPRESENTATIONS AND WARRANTIES. The Borrower hereby represents and
warrants that:
(a) The representations and warranties made by Borrower in Article VI
of the Agreement are true on and as of the date hereof;
(b) There has been no material adverse change in the condition,
financial or otherwise, of the Borrower and its Subsidiaries since the
date of the most recent financial reports of the Borrower received by
each Lender under Section 7.17 thereof, other than changes in the
ordinary course of business, none of which has been a material adverse
change;
(c) The business and properties of the Borrower and its Subsidiaries
are not and have not been adversely affected in any substantial way as
the result of any fire, explosion, earthquake, accident, strike,
lockout, combination of workers, flood, embargo, riot, activities of
armed forces, war or acts of God or the public enemy, or cancellation or
loss of any major contracts; and
(d) No event has occurred and no condition exists which, upon the
consummation of the transaction contemplated hereby, constitutes a
Default or an Event of Default on the part of the Borrower under the
Agreement, the Notes or any other Loan Document either immediately or
with the lapse of time or the giving of notice, or both.
4. CONDITIONS. As a condition to the effectiveness of this Amendment
Agreement, the Borrower shall deliver, or cause to be delivered to the Agent,
the following:
(a) Five (5) executed counterparts of this Amendment Agreement duly;
and
(b) A fully-executed Note payable to the New Lender in the amount of
the New Lender=s Revolving Credit Commitment.
5. OTHER DOCUMENTS. All instruments and documents incident to the
consummation of the transactions contemplated hereby shall be satisfactory in
form and substance to the Agent and its counsel; the Agent shall have received
copies of all additional agreements, instruments and documents which it may
reasonably request in connection therewith, including evidence of the authority
of the Borrower to enter into the transactions contemplated by this Amendment
Agreement, in each case such documents, when appropriate, to be certified by
appropriate corporate or governmental authorities; and all proceedings of the
Borrower relating to the matters provided for herein shall be satisfactory to
the Agent and its counsel.
6. ENTIRE AGREEMENT. This Amendment Agreement sets forth the entire
understanding and agreement of the parties hereto in relation to the subject
matter hereof and supersedes any prior negotiations and agreements among the
parties relative to such subject matter. No promise, conditions, representation
or warranty, express or implied, not herein set forth shall bind any party
hereto, and no one of them has relied on any such promise, condition,
representation or warranty. Each of the parties hereto acknowledges that, except
as in this Amendment Agreement otherwise expressly stated, no representations,
warranties or commitments, express or implied, have been made
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by any other party to the other. None of the terms or conditions of this
Amendment Agreement may be changed, modified, waived or canceled orally or
otherwise, except by writing, in the manner provided in the Agreement,
specifying such change, modification, waiver or cancellation of such terms or
conditions, or of any proceeding or succeeding breach thereof.
7. FULL FORCE AND EFFECT OF AGREEMENT. Except as hereby specifically
amended, modified or supplemented, the Agreement and all of the other Loan
Documents are hereby confirmed and ratified in all respects and shall remain in
full force and effect according to their respective terms.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment
Agreement to be duly executed by their duly authorized officers, all as of the
day and year first written above.
BORROWER:
THE WACKENHUT CORPORATION
WITNESS:
By:
-------------------------- -----------------------------------
Name:
Title:
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NATIONSBANK, NATIONAL ASSOCIATION,
as Agent for the Lenders
By:
-----------------------------------
Name:
Title:
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[INSERT NAME OF NEW LENDER]
By:
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Name:
Title:
Lending Office:
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Wire Transfer Instructions:
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ABA #
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Attention:
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Reference:
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EXHIBIT A
Applicable Commitment Percentages
Applicable
LENDER Revolving Credit Commitment
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NationsBank, N.A. $20,000,000
Scotiabanc Inc. $15,000,000
SunTrust Bank, South Florida, N.A . $15,000,000
[--------------------] $15,000,000
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Total $65,000,000
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