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Exhibit 4.9
AMENDED AND RESTATED GUARANTY AND SURETYSHIP AGREEMENT
THIS AMENDED AND RESTATED GUARANTY AND SURETYSHIP AGREEMENT, dated as
of December 30, 1997 (the "Guaranty"), is made by EACH OF THE UNDERSIGNED (each
a "Guarantor" and collectively the "Guarantors"), to the parties named in
Section 1 hereof. Except as otherwise defined herein, terms used herein defined
in the Amended and Restated Revolving Credit and Reimbursement Agreement
referred to below shall be used herein as so defined.
W I T N E S S E T H:
WHEREAS, The Wackenhut Corporation, a Florida corporation (the
"Borrower"), the financial institutions party thereto (the "Prior Lenders"), and
NationsBank, National Association, as Agent (in such capacity and together with
any successor agent in such capacity, the "Agent") have heretofore entered into
a Revolving Credit and Reimbursement Agreement dated as of January 5, 1995 (as
at any time amended, modified or restated, the "Prior Credit Agreement"); and
WHEREAS, as a condition to entering into the Prior Credit Agreement,
certain Subsidiaries of the Borrower (the "Prior Guarantors") have heretofore
entered into Guaranty and Suretyship Agreements dated January 5, 1995 (the
"Prior Guarantys") pursuant to which the Prior Guarantors guaranteed the full
and timely payment of all of the Borrower's obligations (as defined in the Prior
Credit Agreement) pursuant to the terms of the Prior Credit Agreement; and
WHEREAS, the Borrower and the Lenders have agreed to amend and restate
the Prior Credit Agreement pursuant to the terms of that certain Amended and
Restated Revolving Credit and Reimbursement Agreement dated as of the date
hereof between the Borrower, the Agent and the Lenders (as from time to time
amended, supplemented or restated, the "Credit Agreement"); and
WHEREAS, each Guarantor is a Subsidiary of the Borrower and has been or
may be provided with advances from the Borrower or other working capital made
available directly or indirectly by the Lenders under the Credit Agreement, and
has thereby materially benefitted or will materially benefit from the loans made
to the Borrower pursuant to the Credit Agreement; and
WHEREAS, pursuant to the terms of the Credit Agreement each Guarantor
is required to deliver this Guaranty;
NOW, THEREFORE, in consideration of the premises, each Guarantor hereby
agrees as follows:
1. GUARANTY AND SURETY. Each Guarantor does hereby jointly, severally,
absolutely,
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unconditionally, continually and irrevocably for the benefit of the
Agent and the Lenders (collectively, the "Beneficiaries"), guarantee and become
surety for the full and timely payment when due (whether
by acceleration or otherwise) (including amounts which, but for the operation of
the automatic stay under Section 362(a) of the Bankruptcy Code (or any successor
statute), would become due) of:
A. All Obligations as defined in the Credit Agreement; and
B. all other indebtedness, obligations and liabilities of the Borrower
under written financing arrangements stated by each Guarantor and each of
the Beneficiaries to be guaranteed hereby;
in each case whether direct or indirect, joint or several, absolute or
contingent, liquidated or unliquidated, now or hereafter existing, extended,
renewed, replaced, refinanced or restructured, whether or not from time to time
decreased or extinguished and later increased, created or incurred (all
indebtedness, obligations and liabilities of the Borrower described in this
SECTION 1 are collectively referred to as the "Guarantied Obligations");
PROVIDED, HOWEVER, that the liability of the Guarantor with respect to the
Guarantied Obligations shall not exceed at any time the Maximum Amount (as
hereinafter defined). The "Maximum Amount" means the greater of (X) the
aggregate amount of all advances to or investments in the Guarantor made
directly or indirectly with the proceeds of Loans under the Credit Agreement or
(Y) 95% of (a) the fair salable value of the assets of such Guarantor as of the
date hereof minus (b) the total liabilities of such Guarantor (including
contingent liabilities, but excluding liabilities of such Guarantor under this
Guaranty and the other Loan Documents executed by such Guarantor) as of the date
hereof; PROVIDED FURTHER, HOWEVER, that if the calculation of the Maximum Amount
in the manner provided above as of the date payment is required of such
Guarantor pursuant to this Guaranty would result in a greater positive number,
then the Maximum Amount shall be deemed to be such greater positive number.
1. GUARANTY OF PAYMENT. This is a guaranty of payment and not merely of
collection. In the event of any default by the original obligor in payment or
otherwise on any of the Guarantied Obligations, each Guarantor will pay all or
any portion of the Guarantied Obligations due or thereafter becoming due,
whether by acceleration or otherwise, without offset of any kind whatsoever,
without any Beneficiary first being required to make demand upon the original
obligor or pursue any of its rights against the original obligor, or against any
other Person, including other guarantors (whether or not party to this
Guaranty); and without being required to liquidate or to realize on any
collateral security. In any right of action accruing to any Beneficiary, such
Beneficiary may elect to proceed against (a) any Guarantor together with the
original obligor or obligors; (b) any Guarantor and the original obligor or
obligors individually; or (c) any Guarantor only without having first commenced
any action against the original obligor or obligors.
2. RIGHT TO DEAL WITH GUARANTIED OBLIGATIONS. Subject to the terms and
conditions of the Credit Agreement, any Beneficiary, without notice to any
Guarantor, may deal
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with any Guarantied Obligations and any collateral security therefor in such
manner as it may deem advisable and may renew or extend the Guarantied
Obligations or any part thereof; accept partial payment, or settle, release,
compound, or compromise the same; demand additional collateral security
therefor, and substitute or release the same; and may compromise or settle with
or release and discharge from liability any other guarantor of any Guarantied
Obligation, or any other Person liable to such Beneficiary for all or any
portion of the obligations of any original obligor; all without impairing the
liability of the Guarantor hereunder.
3. OTHER WAIVERS. Each Guarantor hereby unconditionally waives with
respect to this Guaranty: (a) notice of acceptance of this Guaranty by any
Beneficiary and any notice of the incurring by the Borrower of any Guarantied
Obligation; (b) presentment for payment, protest, notice of protest and notice
of dishonor to any party including the Borrower or any Guarantor; (c) any
disability of the original obligor or obligors or defense available to the
original obligor or obligors, including absence or cessation of any original
obligor's liability for any reason whatsoever; (d) any defense or circumstances
which might otherwise constitute a legal or equitable discharge of a guarantor
or surety; and (e) all rights under any state or federal statute dealing with or
affecting the rights of creditors.
4. SUBORDINATION. Until the Guarantied Obligations are paid in full and
no Beneficiary is under any further obligation to lend or extend funds or credit
which would constitute Guarantied Obligations, each Guarantor hereby
unconditionally subordinates all present and future debts, liabilities or
obligations of the original obligor to such Guarantor to the Guarantied
Obligations, and all amounts due under such debts, liabilities, or obligations
shall, upon the occurrence and during the continuance of an Event of Default, be
collected and paid over forthwith to the Beneficiaries on account of the
Guarantied Obligations and, pending such payment, shall be held by such
Guarantor as agent and bailee of the Beneficiaries separate and apart from all
other funds, property and accounts of such Guarantor. Each Guarantor, at the
request of any Beneficiary, shall execute such further documents in favor of
such Beneficiary to further evidence and support the purpose of this SECTION 4.
Each Guarantor hereby irrevocably waives and releases any right or rights of
subrogation or contribution existing at law, by contract or otherwise to recover
all or any portion of any payment made hereunder from the Borrower or any other
guarantor.
5. REPRESENTATIONS AND WARRANTIES. Each Guarantor represents and
warrants to the Beneficiaries that: (a) no other agreement, representation or
special condition exists between the Guarantor and any Beneficiary regarding the
liability of the Guarantor under this Guaranty; nor does any understanding exist
between the Guarantor and any Beneficiary that the obligations of the Guarantor
under this Guaranty are or will be other than as set out herein; and (b) as of
the date hereof, the Guarantor has no defense whatsoever to any action or
proceeding that may be brought to enforce this Guaranty. Furthermore, each
Guarantor affirms to the Beneficiaries that each of the representations and
warranties contained in the Credit Agreement and made by the Borrower with
respect to the Guarantor is true and correct.
6. NO WAIVER BY BENEFICIARIES. No failure or delay on the part of any
Beneficiary
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in exercising any right, power or privilege hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, power or
privilege hereunder preclude any other or further exercise thereof, or the
exercise of any other right, power or privilege. Failure by any Beneficiary to
insist upon strict performance hereof shall not constitute a relinquishment of
its right to demand strict performance at another time. Receipt by any
Beneficiary of any payment by any person on any Guarantied Obligation, with
knowledge of a default on any Guarantied Obligation or of a breach of this
Guaranty, or both, shall not be construed as a waiver of the default or breach.
7. CONTINUING GUARANTY; TERMINATION. THIS GUARANTY IS A CONTINUING
GUARANTY AND SHALL CONTINUE IN FULL FORCE AND EFFECT UNTIL SUCH TIME AS ALL
GUARANTIED OBLIGATIONS SHALL HAVE BEEN INDEFEASIBLY PAID IN FULL (OTHER THAN
GUARANTIED OBLIGATIONS IN THE NATURE OF CONTINUING INDEMNITIES OR EXPENSE
REIMBURSEMENT OBLIGATIONS NOT YET DUE AND PAYABLE) AND NO BENEFICIARY SHALL BE
UNDER ANY FURTHER OBLIGATION TO LEND OR TO ADVANCE FUNDS TO THE ACCOUNT OF THE
BORROWER CONSTITUTING GUARANTIED OBLIGATIONS.
8. BENEFITS OF AGREEMENT. This Guaranty is freely assignable and
transferable by the Beneficiaries to any permitted assignee and transferee of
any Guarantied Obligation; however, the duties and obligations of the Guarantor
may not be delegated or transferred by the Guarantor without the written consent
of all Beneficiaries. The rights and privileges of the Beneficiaries shall inure
to the benefit of their respective successors and assigns, and the duties and
obligations of the Guarantors shall bind their respective successors and
assigns.
9. EXPENSES; INDEMNITY. Each Guarantor will upon demand pay to each
Beneficiary the amount of any and all reasonable expenses, including the
reasonable fees and expenses of its counsel and of any experts and agents, which
it may reasonably incur in connection with enforcement of this Guaranty or the
failure by any Guarantor to perform or observe any of the provisions hereof.
Each Guarantor agrees to indemnify and hold harmless each Beneficiary from and
against any and all claims, demands, losses, judgments and liabilities
(including liabilities for penalties) of whatsoever kind or nature, growing out
of or resulting from this Guaranty or the exercise by any Beneficiary of any
right or remedy granted to it hereunder or under the other Loan Documents, other
than such items arising out of the bad faith, gross negligence or willful
misconduct on the part of such Beneficiary or an officer, co-officer, director,
co-director, employee, co-employee, agent or co-agent thereof or breach of this
Agreement by such Beneficiary or an officer, co-officer, director, co-director,
employee, co-employee, agent or co-agent thereof. If and to the extent that the
obligations of any Guarantor under this SECTION 9 are unenforceable for any
reason, each Guarantor hereby agree to make the maximum contribution to the
payment and satisfaction of such obligations which is permissible under
applicable law.
10. AMENDMENTS, WAIVERS AND CONSENTS. No amendment or waiver of any
provision of this Guaranty or consent to any departure by any Guarantor herefrom
shall in any
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event be effective unless the same shall be in writing and signed by such
Guarantor and the Agent (which execution by the Agent shall be evidence that the
Agent has received the consent thereto of the Lenders required to effect such
amendment or waiver), and then such amendment, waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given; provided, that no such amendment, waiver or consent shall (a) deprive any
Beneficiary of the benefits generally of this Guaranty without the written
consent of such Beneficiary, or (b) alter the provisions of this SECTION 10
without the written consent of all of the Beneficiaries.
11. ADDRESSES FOR NOTICES. All notices and other communications
provided for hereunder shall be in writing (including telefacsimile
communication) and shall be sent by registered or certified mail, return receipt
requested, or first class express mail or overnight courier, or by
telefacsimile, in all cases with charges prepaid, and shall be effective when
delivered against a receipt therefor or when telefacsimile transmission is
confirmed, as the case may be. All notices shall be sent to the applicable party
at the address stated on the signature page hereof or in accordance with the
last unrevoked written direction from such party to the other parties hereto.
12. INTERPRETATION; PARTIAL INVALIDITY. Whenever possible each
provision of this Guaranty shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provision of this Guaranty
shall be prohibited by or invalid under such law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Guaranty.
13. MISCELLANEOUS; REMEDIES CUMULATIVE. Unless the context of this
Guaranty otherwise clearly requires, references to the plural include the
singular, the singular the plural and the part the whole and "or" has the
inclusive meaning represented by the phrase "and/or." The section headings used
herein are for convenience of reference only and shall not define, limit or
extend the provisions of this Guaranty. All remedies hereunder are cumulative
and are not exclusive of any other rights and remedies of the Beneficiaries
provided by law or under the Credit Agreement, the other Loan Documents, or
other applicable agreements or instruments. The making of the Loans to the
Borrower and the issuance of Letters of Credit pursuant to the Credit Agreement
shall be presumed conclusively to have been made, extended or issued,
respectively, in reliance upon the obligations of the Guarantors incurred
pursuant to this Guaranty.
14. GOVERNING LAW. This Guaranty shall in all respects be governed by
the internal substantive laws of the State of Florida without regard to its
choice of law principles. Each Guarantor 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 the purpose of collection and (ii) to the maximum extent
permitted by applicable law, waives trial by jury in connection with any such
litigation.
15. REPAYMENT OR RECOVERY. If claim is ever made upon any Beneficiary
for repayment or recovery of any amount or amounts received in payment or on
account of any of the Guarantied Obligations and any of the Beneficiaries repays
all or part of said amount by
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reason of (a) any judgment, decree or order of any court or administrative body
having jurisdiction over such payee or any of its property, or (b) any
settlement or compromise of any such claim effected by such Beneficiary with any
such claimant (including the original obligor), then and in such event each
Guarantor agrees that any such judgment, decree, order, settlement or compromise
shall be binding upon it, notwithstanding any revocation hereof or the
cancellation of any Note or other instrument evidencing any Guarantied
Obligation or any security therefor, and each Guarantor shall be and remain
liable to the aforesaid Beneficiary for the amount so repaid or recovered to the
same extent as if such amount had never originally been received by any such
Beneficiary.
16. SET-OFF. In addition to any rights now or hereafter granted under
applicable law and not by way of limitation of any such rights, upon the
occurrence and during the continuance of an Event of Default (as defined in the
Credit Agreement), each Guarantor agrees that each Beneficiary shall have a lien
for all the liabilities of each Guarantor upon all deposits or deposit accounts,
of any kind, or any interest in any deposits or deposit accounts thereof, now or
hereafter pledged, mortgaged, transferred or assigned to such Beneficiary or
otherwise in the possession or control of such Beneficiary (other than for
safekeeping) for any purpose for the account or benefit of such Guarantor and
including any balance of any deposit account or of any credit of such Guarantor
with such Beneficiary, whether now existing or hereafter established, hereby
authorizing each Beneficiary at any time or times with or without prior notice
to apply such balances or any part thereof to such of the liabilities of such
Guarantor to such Beneficiary then past due and in such amounts as they may
elect, and whether or not the collateral or the responsibility of other Persons
primarily, secondarily or otherwise liable may be deemed adequate. For the
purposes of this SECTION 16, all remittances and property shall be deemed to be
in the possession of such Beneficiary as soon as the same may be put in transit
to it by mail or carrier or by other bailee.
17. CREDIT AGREEMENT CONTROLS. In the event that any term of this
Guaranty or of any other Loan Document (other than the Credit Agreement)
conflicts with any term of the Credit Agreement, then the term of the Credit
Agreement shall control.
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IN WITNESS WHEREOF, each Guarantor has caused this Guaranty to be duly
executed and delivered by its officers hereunto duly authorized as of the date
first above written.
AMERICAN GUARD AND ALERT,
INCORPORATED
DIVERSIFIED CORRECTIONAL SERVICES,
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 SPORTS SECURITY, INC.
WACKENHUT RESOURCES, INCORPORATED
KING STAFFING, INC.
SOUTHEASTERN RESOURCES, INC.
WORKFORCE ALTERNATIVE, INC.
KING TEMPORARY STAFFING, INC.
WRI II, INC.
PROFESSIONAL EMPLOYEE MANAGEMENT, INC.
WITNESS:
- ----------------------- By:
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Name: Terry P. Mayotte
Title: Treasurer
- -----------------------
Address: The Wackenhut Corporation
4200 Wackenhut Drive, Suite 100
Palm Beach Gardens, Florida 33410
Telephone No. (305) 666-5656
Telefacsimile No. (305) 662-7366
Signature Page 1 of 2
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NATIONSBANK, NATIONAL ASSOCIATION,
AS AGENT FOR THE LENDERS
WITNESS:
- --------------------------- By:
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Name: Johns Ellington
Title: Vice President
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Signature Page 2 of 2