EXHIBIT 2
AMENDMENT NO. 1 TO
AMENDED AND RESTATED
REVOLVING CREDIT AND REIMBURSEMENT AGREEMENT
THIS AMENDMENT NO. 1 TO AMENDED AND RESTATED REVOLVING CREDIT AND
REIMBURSEMENT AGREEMENT (the "Amendment Agreement") is made and entered into
this 18 day of May, 1994 by and among THE WACKENHUT CORPORATION, a Florida
corporation having its principal place of business in Coral Gables, Florida (the
"Borrower"), and NATIONSBANK OF FLORIDA, NATIONAL ASSOCIATION, a national
banking association in its capacity as agent (the "Agent") for each of the
lenders (the "Lenders") party to the Credit Agreement (as defined below).
Unless the context otherwise requires, all terms used herein without definition
shall have the definition provided therefor in the Credit Agreement.
W I T N E S S E T H:
WHEREAS, the Borrower, the Agent and the Lenders have entered into the
Amended and Restated Revolving Credit and Reimbursement Agreement dated July 1,
1993 whereby the Lenders have made loans and advances to, and issued letters of
credit for the benefit of, the Borrower, as at any time hereafter amended,
restated, modified or supplemented, the "Credit Agreement"; and
WHEREAS, the Borrower, the Lenders and the Agent have agreed that the
Credit Agreement shall be amended in the manner set forth herein;
NOW, THEREFORE, in consideration of the premises and conditions herein set
forth, it is hereby agreed as follows:
1. AMENDMENT. Subject to the conditions hereof, the Credit Agreement is
hereby amended, effective as of the date hereof, as follows:
(a) Section 1.01 thereof is hereby amended as follows:
(i) to include, immediately preceding the definition of "Business
Day," the following definition:
"'Bridge Note' means the $4,500,000 Term Note of Wackenhut
Corrections Corporation dated May __, 1994 and payable to the
order of NationsBank, as the same may be extended, modified,
substituted or replaced;"
(ii) the definition of "Total Revolving Loan Commitment" is hereby
amended in its entirety to read as follows:
"'Total Revolving Loan Commitment' means (i) for the period from
the Closing Date to September 30, 1994, $60,000,000 less the
greater of (a) $20,000,000 if the Company shall sell any of its
capital stock, or (b) the net proceeds received by the Company
from any other financing permitted under this Agreement (other
than a refinancing of Indebtedness of The Atrium at Coral Gables,
Ltd., so long as the proceeds of such financing are applied to
pay such Indebtedness and the balance, if any, to reduce the
Total Revolving Loan Commitment), and (ii) after September 30,
1994, $40,000,000, as reduced pursuant to Section 2.10 hereof;
PROVIDED, HOWEVER, that the Total Revolving Loan Commitment as
determined above shall be further reduced by an amount equal to
the principal outstanding under the Bridge Note as of the date of
such determination;"
(b) Section 7.09(b)(i) thereof is hereby amended in its entirety to
read as follows:
"(i) Indebtedness arising under this Agreement and the Bridge
Note,"
(c) Section 8.01 thereof is hereby amended to add a new paragraph (l)
as follows and to renumber existing paragraph (l) as paragraph (m):
"(l) Any Default or Event of Default (as defined therein) shall
have occurred under the Bridge Note; or"
2. REPRESENTATIONS AND WARRANTIES. In order to induce the Agent and the
Lenders to enter into this Amendment Agreement, the Borrower hereby represents
and warrants that the Credit Agreement has been re-examined by the Borrower and
that except as disclosed by the Borrower in writing to the Lenders as of the
date hereof:
(a) The representations and warranties made by the Borrower in
Article VI thereof are true on and as of the date hereof;
(b) There has been no material change in the condition, financial or
otherwise, of the Borrower and its Subsidiaries since April 4, 1993 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 since April 4, 1993 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
2
armed forces, war or acts of God or the public enemy, or cancellation or
loss of any major contracts; and
(d) After giving effect to this Amendment Agreement no condition
exists which, upon the effectiveness of the amendment contemplated hereby,
would constitute a Default or an Event of Default on the part of the
Borrower under the Credit Agreement or the Notes, either immediately or
with the lapse of time or the giving of notice, or both.
3. CONSENT TO SALE OF CAPITAL STOCK. The Agent and the Lenders hereby
consent to the issuance and sale of up to 31% (as determined on the date of such
sale) of the outstanding capital stock of Wackenhut Corrections Corporation to a
Person other than the Borrower or a Wholly-Owned Restricted Subsidiary.
4. CONDITIONS PRECEDENT. The effectiveness of this Amendment Agreement is
subject to the receipt by the Agent of the following:
(i) four counterparts of this Amendment Agreement duly executed
by all signatories hereto;
(ii) opinion of counsel for the Borrower as to the
authorization, execution and delivery of this Amendment Agreement and
the enforceability of the same against the Borrower in accordance with
its terms;
(iii) an amount equal to the aggregate legal fees incurred by the
Agent in connection with the negotiation, review and execution of this
Amendment Agreement; and
(iv) copies of all additional agreements, instruments and
documents which the Agent may reasonably request, such documents, when
appropriate, to be certified by appropriate governmental authorities.
All proceedings of the Borrower relating to the matters provided for herein
shall be satisfactory to the Lenders, the Agent and their counsel.
5. 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, condition, 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 party to the other. None of the terms or conditions of this Amendment
Agreement may be
3
changed, modified, waived or canceled orally or otherwise, except by writing,
signed by all the parties hereto, specifying such change, modification, waiver
or cancellation of such terms or conditions, or of any proceeding or succeeding
breach thereof.
6. FULL FORCE AND EFFECT OF AGREEMENT. Except as hereby specifically
amended, modified or supplemented, the Credit Agreement and all other Loan
Documents are hereby confirmed and ratified in all respects and shall remain in
full force and effect according to their respective terms.
7. COUNTERPARTS. This Amendment Agreement may be executed in any number
of counterparts, each of which shall be deemed an original as against any party
whose signature appears thereon, and all of which shall together constitute one
and the same instrument.
8. GOVERNING LAW. THIS AMENDMENT AGREEMENT SHALL IN ALL RESPECTS BE
GOVERNED BY THE LAW OF THE STATE OF FLORIDA, WITHOUT REGARD TO ANY OTHERWISE
APPLICABLE PRINCIPLES OF CONFLICT OF LAWS. THE BORROWER HEREBY (i) SUBMITS TO
THE JURISDICTION AND VENUE OF THE STATE AND FEDERAL COURTS OF FLORIDA FOR THE
PURPOSES OF RESOLVING DISPUTES HEREUNDER OR UNDER ANY OF THE OTHER LOAN
DOCUMENTS TO WHICH IT IS A PARTY OR FOR PURPOSES OF COLLECTION AND (ii) WAIVES
TRIAL BY JURY IN CONNECTION WITH ANY SUCH LITIGATION.
9. ENFORCEABILITY. Should any one or more of the provisions of this
Amendment Agreement be determined to be illegal or unenforceable as to one or
more of the parties hereto, all other provisions nevertheless shall remain
effective and binding on the parties hereto.
10. CREDIT AGREEMENT. All references in any of the Loan Documents to the
Credit Agreement shall mean and include the Credit Agreement as amended hereby.
11. SUCCESSORS AND ASSIGNS. This Amendment Agreement shall be binding
upon and inure to the benefit of each of the Borrower, the Lenders, the Agent
and their respective successors, assigns and legal representatives; PROVIDED,
however, that the Borrower, without the prior consent of the Lenders, may not
assign any rights, powers, duties or obligations hereunder.
[Remainder of page intentionally left blank.]
4
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:
(CORPORATE SEAL) THE WACKENHUT CORPORATION
ATTEST: By: /s/ Richard C. DeCook
----------------------------------
Name: Richard C. DeCook
----------------------------
Title: SR. V.P.
- - ----------------------------- ---------------------------
Asst. Secretary
Signature Page 1 of 2
NATIONSBANK OF FLORIDA, NATIONAL
ASSOCIATION, as Agent for the
Lenders
By: /s/ John A. Miller
----------------------------------
Name: John A. Miller
---------------------------
Title: Vice President
-------
NATIONSBANK OF FLORIDA, NATIONAL
ASSOCIATION, as Lender
By: /s/ John A. Miller
----------------------------------
Name: John A. Miller
Title: Vice President
-------
Signature Page 2 of 2