EXHIBIT 10.2
EXECUTION VERSION
WAIVER AND AMENDMENT NO. 2
TO
NOTE PURCHASE AGREEMENT
DATED AS OF SEPTEMBER 30, 2003
As of June 16, 2006
TO EACH OF THE PERSONS LISTED IN THE ATTACHED SCHEDULE 1
(EACH, A "CURRENT NOTEHOLDER")
Ladies and Gentlemen:
▇▇▇▇▇▇▇▇ & Company, a Georgia corporation (together with its successors and
assigns, the "COMPANY") and ▇▇▇▇▇▇▇▇ & Company International, Inc., a Georgia
corporation (together with its successors and assigns, the "CO-OBLIGOR" and
together with the Company, the "OBLIGORS") jointly and severally agree with you
as follows:
1. NOTE ISSUANCE, ETC.
(a) The Obligors jointly and severally issued and sold $50,000,000
aggregate principal amount of their joint and several 6.08% Senior
Guarantied Notes due October 10, 2010 (the "NOTES"), pursuant to that
certain Note Purchase Agreement dated as of September 30, 2003 by and among
the Obligors and each of the Current Noteholders, as amended by that
certain Waiver and Amendment to Note Purchase Agreement, dated as of
September 30, 2005, by and among the Obligors and each of the Current
Noteholders (prior to the amendments effected hereby, the "EXISTING
AGREEMENT" and, immediately after giving effect to such amendments, and as
may be further amended, restated or otherwise modified from time to time,
the "AMENDED AGREEMENT").
(b) The register for the registration and transfer of the Notes
indicates that the Current Noteholders are currently the holders of the
entire outstanding principal amount of the Notes.
2. DEFINED TERMS.
Capitalized terms used herein and not otherwise defined herein have the
meanings ascribed to them in the Amended Agreement.
3. WAIVER.
COMPANY'S HEADQUARTERS' SALE/LEASEBACK TRANSACTION. With respect to the
Permitted Sale/Leaseback Transaction, and with respect to such proposed
transaction only, the Current Noteholders hereby (i) waive the requirement set
forth in Section 10.4(c)(i) of the Existing Agreement, provided, however, that
the Disposition Value of the property sold in such transaction shall be included
when calculating the aggregate Disposition Value of all Asset Dispositions,
pursuant to Section 10.4(c)(i) and Section 10.4(c)(ii), with respect to any
subsequent Asset Disposition, and (ii) agree that the lease portion of the
Permitted Sale/Leaseback Transaction shall not constitute an "Investment" under
the Amended Agreement.
The waiver described in this Section 3 supersedes the waiver described in
Section 3.1 of that certain Waiver and Amendment to Note Purchase Agreement,
dated as of September 30, 2005, by and among the Obligors and each of the
Current Noteholders.
4. AMENDMENTS.
Subject to Section 6, the Existing Agreement is amended in the manner set
forth below (collectively, the "AMENDMENTS"):
(A) AMENDMENTS TO SCHEDULE B OF THE EXISTING AGREEMENT. Schedule B of the
Existing Agreement is hereby amended as follows:
(i) The definition of "Indebtedness" is hereby amended by adding the
following sentence to the end thereof:
"Notwithstanding the foregoing, the Permitted Sale/Leaseback
Transaction shall be excluded from 'sale and leaseback transactions'
referred to in clause (g); provided, however, if the lease obligations
under the Permitted Sale/Leaseback Transaction would otherwise be included
in the definition of Indebtedness, such lease obligations shall not be
excluded from the definition of Indebtedness."
(ii) the following new definition is hereby added in the appropriate
alphabetical order:
""PERMITTED SALE/LEASEBACK TRANSACTION" means a transaction to be entered
into by the Company after the Closing pursuant to which the Company will sell
its corporate headquarters located at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
and contemporaneously lease property to be used as the Company's corporate
headquarters; provided, that (i) such Sale and Leaseback Transaction is
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consummated no later than September 30, 2006, (ii) prior to the consummation of
such sale, replacement offices have been leased or purchased, (iii) the Company
receives gross cash proceeds of not less than $8,000,000 in connection with such
sale, (iv) no Default or Event of Default exists immediately prior to such Sale
and Leaseback Transaction or will result after giving effect to such Sale and
Leaseback Transaction and (v) the terms and conditions of the lease of such
property are reasonably acceptable to the Required Holders."
5. WARRANTIES AND REPRESENTATIONS.
To induce the Current Noteholders to enter into this Waiver and Amendment
No. 2, the Obligors warrant and represent as follows (it being agreed, however,
that nothing in this Section 5 shall affect any of the warranties and
representations previously made by the Obligors in or pursuant to the Existing
Agreement, and that all of such other warranties and representations, as well as
the warranties and representations in this Section 5, shall survive the
effectiveness of the Amendments):
5.1. ORGANIZATION; POWER AND AUTHORITY.
Each Obligor is duly organized, validly existing and in good standing under
the laws of Georgia, and is duly qualified as a foreign corporation and in good
standing in each jurisdiction in which such qualification is required by law,
other than those jurisdictions as to which the failure to be so qualified or in
good standing would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect. Each Obligor has the corporate power
and authority to execute and deliver this Waiver and Amendment No. 2 and to
perform the provisions hereof.
5.2. AUTHORIZATION, ETC.
This Waiver and Amendment No. 2 has been duly authorized by all necessary
corporate action on the part of each Obligor and constitutes a legal, valid and
binding obligation of each Obligor enforceable against each Obligor, jointly and
severally, in accordance with its terms, except as such enforceability may be
limited by (a) applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting the enforcement of creditors' rights generally and
(b) general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
5.3. COMPLIANCE WITH LAWS, OTHER INSTRUMENTS, ETC.
The execution, delivery and performance by the Obligors of this Waiver and
Amendment No. 2 will not (a) contravene, result in any breach of, or constitute
a default under, or result in the creation of any Lien in respect of any
property of the
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Obligors or any Subsidiary of the Company under, any applicable indenture,
mortgage, deed of trust, loan, purchase or credit agreement, lease, corporate
charter or by-laws, or any other applicable agreement or instrument to which the
Company, the Co-Obligor or any Subsidiary of the Company, or any of their
respective properties, may be bound or affected, (b) conflict with or result in
a breach of any of the terms, conditions or provisions of any order, judgment,
decree, or ruling of any court, arbitrator or Governmental Authority applicable
to the Obligors or any Subsidiary of the Company or (c) violate any provision of
any statute or other rule or regulation of any Governmental Authority applicable
to the Obligors or any Subsidiary of the Company.
5.4. DISCLOSURE OF DEFAULTS.
After giving effect to this Waiver and Amendment No. 2, no event will have
occurred and no condition will exist which would constitute a Default or an
Event of Default under the Amended Agreement.
5.5. FULL DISCLOSURE.
Neither the financial statements and other certificates previously provided
to the Current Noteholders pursuant to the provisions of the Existing Agreement
nor the statements made in this Waiver and Amendment No. 2 nor any other written
statements furnished by or on behalf of the Obligors to the Current Noteholders
in connection with the proposal and negotiation hereof, taken as a whole,
contain any untrue statement of a material fact or omit a material fact
necessary to make the statements contained therein and herein not misleading.
5.6. NO MATERIAL ADVERSE CHANGE.
Since December 31, 2005, there has been no change in the financial
condition, operations, business, properties or prospects of the Obligors or any
Subsidiary of the Company except changes that, in the aggregate, could not
reasonably be expected to have a Material Adverse Effect.
6. EFFECTIVENESS OF WAIVER.
This Waiver and Amendment No. 2 shall become effective as of June 16, 2006
(the "EFFECTIVE DATE"), provided that
(i) the Company and the Required Holders shall have indicated their written
consent hereto by executing and delivering to each other counterparts hereof;
and
(ii) each Current Noteholder shall have received a fully executed copy of
that certain Amendment No. 1 to First Amended and Restated Credit Agreement,
dated as of June 16, 2006, among the Obligors, the lenders party thereto, and
SunTrust Bank, as Agent.
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7. EXPENSES
Whether or not this Waiver and Amendment No. 2 becomes effective, the
Company will promptly (and in any event within thirty (30) days of receiving any
statement or invoice therefor) pay all reasonable fees, expenses and costs
relating to this Waiver and Amendment No. 2, including, but not limited to, (a)
the cost of reproducing this Waiver and Amendment No. 2 and the other documents
delivered in connection herewith and (b) the reasonable fees and disbursements
of the Current Noteholders' special counsel, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP, incurred in
connection with the preparation, negotiation and delivery of this Waiver and
Amendment No. 2. Nothing in this Section 7 shall be construed to limit the
Company's obligations under Section 15.1 of the Existing Agreement.
8. MISCELLANEOUS.
8.1. EFFECT OF THIS WAIVER AND AMENDMENT NO. 2.
Except as expressly provided herein:
(a) no terms and provisions of any agreement are modified or changed
by this Waiver and Amendment No. 2;
(b) the terms and provisions of the Existing Agreement and the Notes
shall continue in full force and effect; and
(c) each Obligor hereby acknowledges and reaffirms all of its
obligations and duties under the Amended Agreement and the Notes, and by
its signature on the Acknowledgment page hereto, each Guarantor hereby
acknowledges and reaffirms all of its obligations and duties under the
Guaranty Agreement.
8.2. GOVERNING LAW.
This Waiver and Amendment No. 2 shall be construed and enforced in
accordance with, and the rights of the parties shall be governed by, the law of
the State of New York excluding choice-of-law principles of the law of such
State that would require the application of the laws of a jurisdiction other
than such State.
8.3. DUPLICATE ORIGINALS; EFFECTIVENESS.
Two or more duplicate originals of this Waiver and Amendment No. 2 may be
signed by the parties, each of which shall be an original but all of which
together shall constitute one and the same instrument. This Waiver and Amendment
No. 2 may be executed in one or more counterparts and shall be effective when at
least one counterpart shall have been executed by each party hereto, and each
set of
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counterparts which, collectively, show execution by each party hereto shall
constitute one duplicate original.
8.4. SECTION HEADINGS.
The titles of the sections hereof appear as a matter of convenience only,
do not constitute a part of this Waiver and Amendment No. 2 and shall not affect
the construction hereof.
8.5. ENTIRE AGREEMENT.
This Waiver and Amendment No. 2 constitutes the final written expression of
all of the terms hereof and is a complete and exclusive statement of those
terms.
[Remainder of page intentionally left blank; next page is signature page.]
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IN WITNESS WHEREOF, the undersigned have caused this Waiver and Amendment
No. 2 to be duly executed and delivered by their respective duly authorized
officers.
▇▇▇▇▇▇▇▇ & COMPANY
By: /s/ J. R. ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President & Treasurer
▇▇▇▇▇▇▇▇ & COMPANY INTERNATIONAL, INC.
By: /s/ J. R. ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President & Treasurer
[Signature Page to Waiver and Amendment No. 2 to Note Purchase Agreement]
CURRENT NOTEHOLDERS:
The foregoing is hereby agreed to as of the date thereof.
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
PRUCO LIFE INSURANCE COMPANY
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Assistant Vice President
PRUCO LIFE INSURANCE COMPANY OF NEW JERSEY
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Assistant Vice President
RGA REINSURANCE COMPANY
RELIASTAR LIFE INSURANCE COMPANY
BY: PRUDENTIAL PRIVATE PLACEMENT INVESTORS, L.P.,
AS INVESTMENT ADVISOR
BY: PRUDENTIAL PRIVATE PLACEMENT INVESTORS, INC.,
GENERAL PARTNER
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
[Signature Page to Waiver and Amendment No. 2 to Note Purchase Agreement]
ACKNOWLEDGMENT PAGE
Each of the undersigned consents to the execution and delivery of this Waiver
and Amendment No. 2 by the Obligors and reaffirms its obligations under the
Guaranty Agreement:
CALESCO, INC.
▇▇▇▇▇▇▇▇ & COMPANY OF NEW YORK, INC.
▇▇▇▇▇▇▇▇ LEASING SERVICES, INC.
RISK SCIENCES GROUP, INC.
THE PRISM NETWORK, INC.
▇▇▇▇▇▇▇▇ & COMPANY HEALTHCARE
MANAGEMENT, INC.
QIRRA CUSTOM SOFTWARE, INC.
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, INC.
▇▇▇▇▇▇▇▇▇▇▇▇, INC.
By: /s/ J. R. ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Treasurer
▇▇▇▇▇▇▇▇ & COMPANY L.P.
By: ▇▇▇▇▇▇▇▇ & Company, its General Partner
By: /s/ J. R. ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President & Treasurer
[Signature Page to Waiver and Amendment No. 2 to Note Purchase Agreement]
▇▇▇▇▇▇▇▇ & COMPANY EMPLOYMENT
SERVICES, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: President
[Signature Page to Waiver and Amendment No. 2 to Note Purchase Agreement]
▇▇▇▇▇▇▇▇ & COMPANY OF FLORIDA
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: President
[Signature Page to Waiver and Amendment No. 2 to Note Purchase Agreement]
▇▇▇▇▇▇▇▇ & COMPANY OF ILLINOIS
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
[Signature Page to Waiver and Amendment No. 2 to Note Purchase Agreement]
▇▇▇▇▇▇▇▇ & COMPANY OF CALIFORNIA
By: /s/ ▇▇▇▇▇▇▇ ▇. Van Fleet
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. Van Fleet
Title: President
[Signature Page to Waiver and Amendment No. 2 to Note Purchase Agreement]
CRAWFORD HEALTHCARE MANAGEMENT
OF NORFOLK AND BALTIMORE, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. Beach
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. Beach
Title: Vice President
[Signature Page to Waiver and Amendment No. 2 to Note Purchase Agreement]
THE GARDEN CITY GROUP, INC.
By: /s/ J. R. ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Treasurer
[Signature Page to Waiver and Amendment No. 2 to Note Purchase Agreement]
CRAWFORD INVESTIGATION SERVICES, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
[Signature Page to Waiver and Amendment No. 2 to Note Purchase Agreement]