Exhibit 10.2
AMENDMENT AGREEMENT NO. 3
TO
CREDIT AGREEMENT
THIS AMENDMENT AGREEMENT is made and entered into as of this 24th day
of September, 2001, by and among THE WACKENHUT CORPORATION, a Florida
corporation (herein called the "Borrower"), BANK OF AMERICA, N.A. (the "Agent"),
as Agent for the lenders (the "Lenders") party to the Credit Agreement dated
November 13, 2000 among such Lenders, Borrower and the Agent, as amended by
Amendment Agreement No. 1 dated December 12, 2000 and Amendment Agreement No. 2
dated June 22, 2001 (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 $112,500,000 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, other than Titania, guarantee payment of all Obligations of the
Borrower arising under the Agreement; and
WHEREAS, the Borrower has requested that the Agreement be further
amended in the manner set forth 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) SECTION 9.1 is hereby amended in its entirety to read as
follows:
"9.1(a) CONSOLIDATED NET WORTH. Permit at any time
Consolidated Net Worth to be less than (i) 90% of Borrower and
Subsidiaries Consolidated Net Worth at the Fiscal Quarter
ending October 1, 2000 and (ii) as at the last day of each
succeeding Fiscal Quarter of the Borrower and until (but
excluding) the last day of the next following Fiscal Quarter
of the Borrower, the sum of (A) the amount of Consolidated Net
Worth required to be maintained pursuant to this SECTION
9.1(A) as at the end of the immediately preceding Fiscal
Quarter, plus, (B)
50% of Consolidated Net Income (with no reduction for net
losses for any period but including earnings and losses
attributable to outstanding Minority Interest) for the Fiscal
Quarter of the Borrower ending on such day, plus (C) 75% of
the Net Proceeds to the Borrower from the sale of shares of
the Borrower's capital stock received during the Fiscal
Quarter of the Borrower ending on such date, less (D) losses
incurred during the restructuring of Chile, not to exceed
$50,000,000, reduced by the amount of any realized tax credit.
The calculation of this covenant shall be based upon the
consolidated financial statements of the Borrower and its
Subsidiaries, without giving affect to any Accounting
Adjustments."
(b) SECTION 9.13 is hereby amended in its entirety to read as
follows:
"9.13 ADVANCES TO WCC AND CHILE. Make or maintain
loans or advances to WCC or Chile, enter into Guaranties for
the benefit of WCC or Chile, make capital contributions to WCC
or Chile or purchase securities from WCC or Chile, if, after
giving effect to any such transaction, the aggregate amount of
such outstanding loans and advances, guaranteed obligations,
capital contributions and securities purchases shall exceed in
the case of WCC $10,000,000 in the aggregate and in the case
of Chile $50,000,000 in the aggregate."
3. AMENDMENT OF AMENDMENT AGREEMENT NO. 2. Subject to the terms and
conditions hereof, each of Section 2(b) through Section 2(d) of Amendment
Agreement No. 2 dated June 22, 2001 to Credit Agreement is hereby amended by
deleting the text therein in its entirety and replacing it with "Intentionally
Omitted."
4. 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.
5. 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 7.6 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
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(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.
6. CONDITIONS. This Amendment Agreement shall become effective upon the
Borrower delivering to the Agent seven (7) counterparts of this Amendment
Agreement duly executed by the Agent, the Lenders, and the Borrower and
consented to by each of the Guarantors.
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 all the parties hereto, 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.
[Remainder of page intentionally left blank.]
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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
By: /s/ Philip L. Maslow
-------------------------------------
Name: Philip L. Maslow
Title: Chief Financial Officer
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GUARANTORS:
TITANIA ADVERTISING, INCORPORATED
TWC/FL/01, INC.
TWC/FL/02, INC.
WACKENHUT INTERNATIONAL,
INCORPORATED
WACKENHUT SERVICES, INCORPORATED
WACKENHUT AIRLINE SERVICES, INC.
AMERICAN GUARD & ALERT, INCORPORATED
WACKENHUT EDUCATIONAL SERVICES, INC.
WACKENHUT MONITORING SYSTEMS, INC.
WACKENHUT FINANCIAL, INC.
TUHNEKCAW, INC.
By: /s/ Philip L. Maslowe
-------------------------------------
Name: Philip Maslowe
Title: Vice President
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GUARANTORS:
DIVERSIFIED CORRECTIONAL SERVICES,
INCORPORATED
WACKENHUT.COM ONLINE STORE, INC.
SAVE-A-FRIEND, INC.
By: /s/ Ian Green
-------------------------------------
Name: Ian Green
Title: Vice President
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GUARANTORS:
WACKENHUT RESOURCES, INCORPORATED
WRI EMPLOYERS INSURANCE, INC.
OASIS STAFFING, INC.
(f/k/a King Staffing, Inc.)
OASIS STAFFING II, INC.
(f/k/a King Temporary Staffing, Inc.)
OASIS OUTSOURCING BENEFITS III, INC.
(f/k/a King Benefits, Inc.)
KING EMPLOYEE SERVICES, INC.
WORKFORCE ALTERNATIVE, INC.
OASIS OUTSOURCING, INC.
OASIS OUTSOURCING II, INC.
OASIS OUTSOURCING III, INC.
OASIS OUTSOURCING IV, INC.
OASIS OUTSOURCING BENEFITS, INC.
WRI STAFFING, INC.
WRI II, INC.
OASIS OUTSOURCING V, INC.
(f/k/a Professional Employee
Management, Inc.)
OASIS OUTSOURCING VI, INC.
(f/k/a Professional Employee
Management II, Inc.)
OASIS OUTSOURCING VII, INC.
(f/k/a Professional
Employee Management III, Inc.)
OASIS OUTSOURCING VIII, INC.
(f/k/a Professional
Employee Management, IV, Inc.)
OASIS OUTSOURCING BENEFITS II, INC.
(f/k/a Professional Employee Management
Benefits, Inc.)
OASIS PAYROLL SERVICES, INC.
(f/k/a Professional Employee
Management Services, Inc.)
OASIS OUTSOURCING IX, INC.
By: /s/ Terry Mayotte
-------------------------------------
Name: Terry Mayotte
Title: Chief Financial Officer
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GUARANTORS:
WACKENHUT SERVICES, LLC
WACKENHUT AVIATION LLC
By: /s/ James L. Long
-------------------------------------
Name: James L. Long
Title: President
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GUARANTORS:
WACKENHUT OF NEVADA, INC.
By: /s/ Alan B. Bernstein
-------------------------------------
Name: Alan B. Bernstein
Title: President
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BANK OF AMERICA, N.A.,
as Agent for the Lenders
By: /s/ John E. Williams
-------------------------------------
Name: John E. Williams
Title: Managing Director
BANK OF AMERICA, N.A.
By: /s/ John E. Williams
-------------------------------------
Name: John E. Williams
Title: Managing Director
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SCOTIABANC INC.
By: /s/ Frank F. Sandler
-------------------------------------
Name: Frank F. Sandler
Title: Managing Director
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FIRST UNION NATIONAL BANK
By: /s/ Donald J. Mathews
-------------------------------------
Name: Donald J. Mathews
Title: Vice President
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SUNTRUST BANK
By: /s/ William H. Crawford
-------------------------------------
Name: William H. Crawford
Title: Vice President
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DRESDNER BANK LATEINAMERIKA AG,
MIAMI AGENCY
By: /s/ Alan Hills
-------------------------------------
Name: Alan Hills
Title: Vice President
By: /s/ Frank Huthnance
-------------------------------------
Name: Frank Huthnance
Title: Vice President
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BANCO SANTANDER PR
By: /s/ Pedro Diaz Romero
-------------------------------------
Name: Pedro Diaz Romero
Title: Senior Vice President
By: /s/ Juan Boscio Garcia
-------------------------------------
Name: Juan Boscio Garcia
Title: Senior Corporate Officer
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