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Exhibit 4.6
AMENDMENT AGREEMENT NO. 2
TO AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDMENT AGREEMENT is made and entered into as of this 3rd day of
December, 1999, by and among WACKENHUT CORRECTIONS CORPORATION, a Florida
corporation (herein called the "Borrower"), BANK OF AMERICA, N.A. (successor in
interest to NationsBank, N.A.) (the "Agent"), as Agent for the lenders (the
"Lenders") party to the Amended and Restated Credit Agreement dated December 18,
1997 among such Lenders, Borrower and the Agent (as amended prior to the date
hereof, the "Agreement") and the Lenders whose names are subscribed hereto.
WITNESSETH:
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 $30,000,000 as evidenced
by the Notes (as defined in the Agreement); and
WHEREAS, as a condition to the making of the loans pursuant to the
Agreement the Lenders have required that all Material Subsidiaries that are
Domestic 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 further
amended and the Agent and the Lenders, subject to the terms and conditions
hereof, are willing to make such amendment, as provided herein;
WHEREAS, the Borrower's Subsidiary, Wackenhut Corrections (UK), Ltd.
has become a Material Subsidiary and the Borrower has failed to comply on a
timely basis with the requirements of Section 8.19 of the Agreement and,
subject to the receipt of the consent of the Required Lenders, the Borrower
intends to restructure its investments in the United Kingdom as described on
Appendix I attached hereto and by reference made a part hereof and in the
letter from the Borrower to the Agent dated November 30, 1999 (the "UK
Reorganization"); and
WHEREAS, the Borrower has requested that the Lenders waive the failure
to comply with Section 8.19 described above and to consent to the restructuring
of its United Kingdom investment;
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. AMENDMENTS. Subject to the conditions set forth herein,
the Agreement is hereby amended as follows, effective as of the date
hereof:
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(a) The following definition of "Applicable TROL
Equity Advances" is added to Section 1.1 of the Agreement:
"'Applicable TROL Equity Advances' means,
with respect to any TROL Lease, those equity advances
(a) that are incurred by the TROL Lessor under the
operative agreements (including trust agreement)
relating to such TROL Lease, and (b) the proceeds of
which are used by the TROL Lessor to acquire or
improve any property that is subject of such lease,
or to pay transaction expenses in connection with
such lease."
(b) The following definition of "Applicable TROL
Loans" is added to Section 1.1 of the Agreement:
"'Applicable TROL Loans' means, with respect
to any TROL Lease, those loans (a) that are incurred
by the TROL Lessor under the operative agreements
(including credit agreement) relating to such TROL
Lease, and (b) the proceeds of which are used by the
TROL Lessor to acquire or improve any property that
is subject of such lease, or to pay transaction
expenses in connection with such lease.
(c) The following definition of "TROL Basic Rent" is
added to Section 1.1 of the Agreement:
"'TROL Basic Rent' means, with respect to
any TROL Lease, the portion of the rent under such
lease that (a) is determined by the amount of TROL
Interest and Equity Yield accrued on Applicable TROL
Loans and Applicable TROL Equity Advances, and (b) is
paid to the TROL Lessor to enable the TROL Lessor to
pay such TROL Interest Equity Yield."
(d) The definition of "Consolidated Interest Expense"
in Section 1.1 of the Agreement is amended in its entirety,
so that as amended it shall read as follows:
"'Consolidated Interest Expense' means,
with respect to any period of computation thereof,
the gross interest expense of the Borrower and its
Subsidiaries, including without limitation (i) the
current amortized portion of debt discounts to the
extent included in gross interest expense, (ii) the
current amortized portion of all fees (including
fees payable in respect of any Swap Agreement and
Letters of Credit) payable in connection with the
incurrence of Indebtedness to the extent included in
gross interest expense and (iii) the portion of any
payments made in connection with Capital Leases
allocable to interest expense, in each of the
foregoing cases determined on a consolidated basis in
accordance with GAAP applied on a Consistent Basis;
PROVIDED that Consolidated Interest Expense shall
not include payments with respect to the TROL
Leases, except that Consolidated Interest Expense
shall include payments of TROL Basic Rent."
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(e) The following definition of "TROL Interest and
Equity Yield" is added to Section 1.1 of the Agreement.
"'TROL Interest and Equity Yield' means,
with respect to any TROL Lease, collectively: (a) the
interest accrued on the Applicable TROL Loans (but
excluding any interest that is capitalized or paid by
the TROL Lessor using the proceeds of any Applicable
TROL Loan), and (b) the yield in the nature of
interest that is accrued on Applicable TROL Equity
Advances (but excluding any yield that is capitalized
or paid using the proceeds of any Applicable TROL
Equity Advance)."
(f) The definition of "TROL Leases" in Section 1.1
of the Agreement is amended in its entirety, so that as
amended it shall read as follows:
"'TROL Leases' means all tax retention
operating lease agreements between the Borrower or
any Subsidiary, as lessee, and the TROL Lessor, as
amended, supplemented or modified from time to time."
(g) The following definition of "TROL Lessor" is
added to Section 1.1 of the Agreement:
"'TROL Lessor' means, with respect to any
TROL Lease, First Security Bank, N.A., the owner
trustee, as lessor, and any successor."
(h) Clause (f) of Section 9.7 of the Agreement is
amended in its entirety, so that as amended clause (f) shall
read as follows:
"(f) other investments, loans or advances
(including, without limitation, loans or advances
in or to Special Purpose Subsidiaries) not exceeding
in the aggregate at any time 12% of Consolidated
Total Assets;"
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 consent
and waiver and the amendments to the Agreement set forth herein 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 VII 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
8.1 thereof, other than changes in the ordinary course of
business, none of which has been a material adverse change;
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(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.
5. WAIVER AND CONSENT. Each of the Lenders party to this
Amendment Agreement hereby (1) waives the Event of Default, together
with any requirements that the Borrower be assessed the Default Rate,
by reason of the Borrower's failure to pledge to the Agent (pursuant
to Section 8.19 of the Agreement) 65% of the capital stock of
Wackenhut UK, Ltd. provided that (x) the UK Reorganization shall occur
within 60 days of the date of this Amendment Agreement and (y) the
Borrower shall pledge to the Agent 65% of the stock of Wackenhut
Corrections (UK), Ltd. and comply with the other requirements of
Section 8.19 within 60 days of the date of this Amendment Agreement,
and (ii) consents to the UK Reorganization.
6. CONDITIONS. This Amendment Agreement shall become
effective upon the Borrower delivering to the Agent eleven (11)
counterparts of this Amendment Agreement duly executed by the Borrower
and consented to by each of the Subsidiaries.
7. 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, signed by the parties required
by the terms of the Agreement, specifying such change, modification,
waiver or cancellation of such terms or conditions, or of any
proceeding or succeeding breach thereof.
8. 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
WACKENHUT CORRECTIONS CORPORATION
WITNESS:
/s/ Xxxxx N.T. Xxxxxx By: /s/ Xxxx X. X'Xxxxxx
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Name: Xxxx X. X'Xxxxxx
------------------------------ Title: Senior Vice President, CFO &
Treasurer,
Wackenhut Corrections Corporation
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GUARANTORS:
WCC RE HOLDINGS, INC.
WITNESS:
/s/ Xxxxx N.T. Xxxxxx
----------------------------------
By: /s/ Xxxx X. X'Xxxxxx
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/s/ Keungling Xxx Name: Xxxx X. X'Xxxxxx
---------------------------------- Title: Senior Vice President
WCC Re Holdings, Inc.
BANK OF AMERICA, N.A.
as Agent for the Lenders
By: /s/ Xxxx X. Xxxxxxxx
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Name: Xxxx X. Xxxxxxxx
Title: Managing Director
BANK OF AMERICA, N.A.,
as Lender
By: /s/ Xxxx X. Xxxxxxxx
-------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Managing Director
SCOTIABANC, INC.
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Relationship Manager
SUNTRUST BANK, SOUTH FLORIDA, N.A.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
Title: Assistant Vice President
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SOUTHTRUST BANK, NATIONAL
ASSOCIATION
By: /s/ D. Guy Guenthaer
-------------------------------
Name: D. Guy Guenthaer
Title: Group Vice President
SUMMIT BANK
By: /s/ Xxxx Xxxxx
-------------------------------
Name: Xxxx Xxxxx
Title: Vice President
AMSOUTH BANK
By: /s/
-------------------------------
Name:
Title:
PARIBAS
By: /s/ Xxxxx Xxxxxxxxx
-------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Vice President
By: /s/ Xxxxx X. Sergeant
-------------------------------
Name: Xxxxx X. Sergeant
Title: Assistant Vice President
HIBERNIA NATIONAL BANK
By: /s/ Xxxx X. Xxxxxxxxxx
-------------------------------
Name: Xxxx X. Xxxxxxxxxx
Title: Senior Vice President
PNC BANK, N.A.
By: /s/
-------------------------------
Name:
Title:
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