Annual Report — Form 10-K — Sect. 13 / 15(d) – SEA’34 Filing Table of Contents
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22: R1 Document and Entity Information HTML 57K
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Comprehensive Income
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Comprehensive Income (Parenthetical)
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Policies
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34: R13 Derivative Instruments HTML 241K
35: R14 Restructuring Charges HTML 45K
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37: R16 Goodwill and Identifiable Intangible Assets HTML 111K
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Major Customers
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Policies (Policies)
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Policies (Tables)
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Major Customers (Tables)
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Policies - Earnings per Common Share (Details)
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63: R42 Acquisitions and Divestitures - 2017 Narrative HTML 52K
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Price Allocation (Details)
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Price Allocation (Details)
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Forma Results (Details)
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70: R49 Derivative Instruments - Effect on Income HTML 92K
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Goodwill (Details)
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Identifiable Intangible Assets (Details)
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Future Estimated Amortization of Identifiable
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Financing Costs (Details)
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Sales and Purchase Commitments (Details)
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Compensation, Environmental and Other Liabilities
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Other Matters (Details)
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Repurchase Programs (Details)
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Risk (Details)
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Major Customers - Income Statement Items (Details)
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Major Customers - Balance Sheet Items (Details)
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This AMENDMENT NO. 4 TO FOURTH AMENDED AND RESTATED CREDIT AGREEMENT (this “Amendment”) dated as of January 30, 2018, is made by and among WORLD FUEL SERVICES CORPORATION, a Florida corporation (“WFS”), WORLD FUEL SERVICES EUROPE, LTD.,
a corporation organized and existing under the laws of the United Kingdom (“WFS Europe”), and WORLD FUEL SERVICES (SINGAPORE) PTE LTD, a corporation organized and existing under the laws of the Republic of Singapore (“WFS Singapore”, and together with WFS and WFS Europe, each a “Borrower” and collectively the “Borrowers”), each of the undersigned Guarantors, BANK OF AMERICA, N.A., a national banking association organized and existing under the laws of the United States (“Bank of America”), in its capacity as administrative agent for the Lenders generally (in such capacity, the “Administrative Agent”), BANK
OF AMERICA, N.A., SINGAPORE BRANCH (“Bank of America Singapore”), in its capacity as administrative agent for the Singapore Term Loan Facility (in such capacity, the “Singapore Agent”), and each of the Lenders under the Fourth Amended Credit Agreement (defined below) (collectively, the “Lenders”) signatory hereto. Except as expressly provided herein, capitalized terms used but not otherwise defined herein have the respective meanings ascribed to them in the Credit Agreement (as defined below).
W I T N E S S E T H:
WHEREAS, the Borrowers,
Bank of America, as Administrative Agent, Swing Line Lender and L/C-BA Issuer, and the Lenders have entered into that Fourth Amended and Restated Credit Agreement dated as of October 10, 2013 (as amended by that certain Amendment No. 1 to Fourth Amended and Restated Credit Agreement, and Joinder Agreement dated as of January 30, 2015, that certain Amendment No. 2 to Fourth Amended and Restated Credit Agreement, and Joinder Agreement dated as of October 26, 2016, that certain Amendment No. 3 to Fourth Amended and Restated Credit Agreement dated as of May 12, 2017, and as further amended, supplemented, restated or otherwise modified prior to the date hereof, the “Fourth Amended Credit Agreement”; references herein to the “Credit
Agreement” shall mean the Fourth Amended Credit Agreement after giving effect to this Amendment);
WHEREAS, the Guarantors and the Administrative Agent entered into that Third Amended and Restated Guaranty Agreement dated as of October 10, 2013, pursuant to which the Guarantors agreed to guarantee payment of the Obligations;
WHEREAS, the Borrowers have requested that the Lenders make certain amendments to the Fourth Amended Credit Agreement, as set forth herein;
WHEREAS, the Borrowers have elected, (a) pursuant to Section 2.05(a)
of the Fourth Amended Credit Agreement, to prepay certain Term Loans in an amount not less than $300,000,000 (the “Specified Prepayment”), and (b) pursuant to Section 2.06(a) of the Fourth Amended Credit Agreement, to reduce the Aggregate Revolving Commitments such that immediately after giving
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effect to such reduction the Aggregate Revolving Commitments shall not exceed $1,160,000,000 (the “Specified Commitment Reduction”);
WHEREAS, the Administrative Agent and the Lenders signatory hereto are willing to effect
such amendments on the terms and conditions contained in this Amendment;
NOW, THEREFORE, in consideration of the premises and further valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
1.Amendments to Fourth Amended Credit Agreement. Subject to the terms and conditions set forth herein, effective as of the Amendment Effective Date (as defined below), the Fourth Amended Credit Agreement is amended as follows:
(a) The following definition of “Benefit Plan” is hereby added to Section 1.02 of the Fourth Amended Credit Agreement in alphabetical order thereto:
“Benefit
Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in Section 4975 of the Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”.
(b) The following definition of “Fourth Amendment Effective Date” is hereby added to Section 1.02 of the Fourth Amended Credit Agreement in alphabetical order thereto:
(c) The
following definition of “PTE” is hereby added to Section 1.02 of the Fourth Amended Credit Agreement in alphabetical order thereto:
“PTE” means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.
(d) The definition of “Aggregate Revolving Commitments” in Section 1.02 of the Fourth Amended Credit Agreement is hereby deleted in its entirety and replaced with the following in lieu thereof:
“Aggregate Revolving Commitments” means the Revolving
Commitments of all of the Revolving Lenders. As of the Fourth Amendment Effective Date, the Aggregate Revolving Commitments equal $1,160,000,000.
(e) The definition of “Consolidated EBITDA” in Section 1.02 of the Fourth Amended Credit Agreement is hereby deleted in its entirety and replaced with the following in lieu thereof:
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“Consolidated EBITDA” means, for any period, for WFS and its Restricted Subsidiaries
on a consolidated basis, an amount equal to Consolidated Net Income for such period plus (a) the following to the extent deducted in calculating such Consolidated Net Income: (i) Consolidated Interest Charges for such period, (ii) the provision for Federal, state, local and foreign income taxes payable by WFS and its Restricted Subsidiaries for such period, (iii) depreciation and amortization expense for such period, (iv) other non-recurring expenses of WFS and its Restricted Subsidiaries reducing such Consolidated Net Income which do not represent a cash item in such period or any future period, (v) other non-recurring cash expenses (including severance costs) of WFS and its Restricted Subsidiaries
incurred in any fiscal quarter, in each case to the extent reducing Consolidated Net Income, publicly disclosed and set forth in reasonable detail in the Compliance Certificate for such period; provided that the expenses described in this clause (v) shall only be permitted to be added to Consolidated Net Income for such period to the extent such expenses collectively do not increase Consolidated EBITDA (measured before giving effect to this clause (v)) by more than 15% with respect to the period ending December 31, 2017, or 10% with respect to each period ending thereafter; and minus (b) the following to the extent included in calculating such Consolidated Net Income: (i) Federal, state, local and foreign income tax credits of WFS and its Restricted Subsidiaries
for such period and (ii) all non-cash items increasing Consolidated Net Income for such period; provided, that, (x) any period that includes an Acquisition or Material Disposition such calculation shall be subject to the adjustments set forth in Section 1.08 and (y) “Consolidated EBITDA” for any such period shall include the aggregate amount of cash actually distributed by any Unrestricted Subsidiary to WFS or any of its Restricted Subsidiaries during such period.
(f) The definition of “Consolidated Senior Leverage Ratio” in Section 1.02 of the Fourth Amended Credit Agreement is hereby deleted in its
entirety and replaced with the following in lieu thereof:
“Consolidated Senior Leverage Ratio” means, as of any date of determination, the ratio of (a) (i) Consolidated Funded Indebtedness as of such date minus (ii) all Subordinated Debt as of such date minus (iii) all unrestricted cash, cash equivalents and short term investments of WFS and its Subsidiaries in excess of $25,000,000 as of such date, with the total amount included under this clause (iii) not to exceed $175,000,000 as of any date of determination to (b) Consolidated EBITDA for the period of the four fiscal quarters most
recently ended as of such date; provided, that, during any period that includes an Acquisition or Material Disposition such calculation shall be subject to the adjustments set forth in Section 1.08; provided further, that, for purposes of calculating the Consolidated Senior Leverage Ratio, the lesser of (i) $300,000,000 and (ii) the outstanding face amount of standby letters of credit issued for the account of WFS and its Restricted Subsidiaries as of such date shall be excluded from Consolidated Funded Indebtedness.
(g) The definition of “Consolidated Total Leverage Ratio” in Section 1.02 of the Fourth Amended
Credit Agreement is hereby deleted in its entirety and replaced with the following in lieu thereof:
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“Consolidated Total Leverage Ratio” means, as of any date of determination, the ratio of (a) (i) Consolidated Funded Indebtedness as of such date minus (ii) all unrestricted cash, cash equivalents and short term investments of WFS and its Subsidiaries in excess of $25,000,000 as of such date, with the total amount included under this clause
(ii) not to exceed $175,000,000 as of any date of determination to (b) Consolidated EBITDA for the period of the four fiscal quarters most recently ended as of such date; provided, that, during any period that includes an Acquisition or Material Disposition such calculation shall be subject to the adjustments set forth in Section 1.08; provided further, that, for purposes of calculating the Consolidated Total Leverage Ratio, the lesser of (i) $300,000,000 and (ii) the outstanding face amount of standby letters of credit issued for the account of WFS and its Restricted Subsidiaries as of such date shall be excluded from Consolidated Funded Indebtedness.
(h) Section
5.12 of the Fourth Amended Credit Agreement is hereby amended by adding the following clause (e) to the end of such Section:
(e) On and as of the Fourth Amendment Effective Date, WFS is not and will not be (a) an employee benefit plan subject to Title I of ERISA, (b) a plan or account subject to Section 4975 of the Code; (c) an entity deemed to hold “plan assets” of any such plans or accounts for purposes of ERISA or the Code; or (d) a “governmental plan” within the meaning of ERISA.
(i) The following Section 9.12 is hereby added to the Fourth Amended Credit Agreement immediately following Section 9.11 thereof
(and each Lender party to this Amendment, by its execution of this Amendment hereby makes the representations and warranties contained in such Section):
9.12 ERISA Provisions.
(a) Each Lender (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent and the Joint Lead Arrangers and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borrowers or any other Loan Party, that at least one of the following is and will be true:
(i) such Lender is not using “plan assets” (within the meaning of 29 CFR § 2510.3-101, as modified by Section 3(42) of ERISA) of one or more Benefit Plans in connection
with the Loans, the Letters of Credit, the Bankers’ Acceptance or the Commitments,
(ii) the transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE
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91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined
by in-house asset managers), is applicable with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Bankers’ Acceptances, the Commitments and this Agreement,
(iii) (A) such Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter into, participate in, administer and perform the Loans, the Letters of Credit, Bankers’ Acceptances, the Commitments and this Agreement, (C) the entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of PTE 84-14 and (D) to the best knowledge of such Lender, the requirements of subsection
(a) of Part I of PTE 84-14 are satisfied with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Bankers’ Acceptances, the Commitments and this Agreement, or
(iv) such other representation, warranty and covenant as may be agreed in writing between the Administrative Agent, in its sole discretion, and such Lender.
(b) In addition, unless sub-clause (i) in the immediately preceding clause (a) is true with respect to a Lender or such Lender has not provided another representation, warranty and covenant as provided in sub-clause (iv) in the immediately preceding clause (a), such Lender further (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party
hereto, for the benefit of, the Administrative Agent, each Joint Lead Arranger and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borrowers or any other Loan Party, that:
(i) none of the Administrative Agent, any Joint Lead Arranger or any of their respective Affiliates is a fiduciary with respect to the assets of such Lender (including in connection with the reservation or exercise of any rights by the Administrative Agent under this Agreement, any Loan Document or any documents related to hereto or thereto),
(ii) the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Bankers’ Acceptances, the Commitments and this Agreement is independent (within the meaning of 29 CFR § 2510.3-21) and is a bank, an
insurance carrier, an investment adviser, a broker-dealer or other person that holds, or has under management or control, total assets of at least $50 million, in each case as described in 29 CFR § 2510.3-21(c)(1)(i)(A)-(E),
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(iii) the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Bankers’ Acceptances, the Commitments and this Agreement is capable of evaluating investment risks independently, both in general and with regard to particular transactions and investment strategies (including in respect of the Obligations),
(iv)
the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Bankers’ Acceptances, the Commitments and this Agreement is a fiduciary under ERISA or the Code, or both, with respect to the Loans, the Letters of Credit, the Commitments and this Agreement and is responsible for exercising independent judgment in evaluating the transactions hereunder, and
(v) no fee or other compensation is being paid directly to the Administrative Agent, any Joint Lead Arranger or any their respective Affiliates for investment advice (as opposed to other services) in connection with the Loans, the Letters of Credit, Bankers’ Acceptances, the Commitments or this Agreement.
(c) The Administrative Agent and each Joint Lead Arranger hereby informs the Lenders that each such Person
is not undertaking to provide impartial investment advice, or to give advice in a fiduciary capacity, in connection with the transactions contemplated hereby, and that such Person has a financial interest in the transactions contemplated hereby in that such Person or an Affiliate thereof (i) may receive interest or other payments with respect to the Loans, the Letters of Credit, the Bankers’ Acceptances, the Commitments and this Agreement, (ii) may recognize a gain if it extended the Loans, the Letters of Credit, the Bankers’ Acceptances or the Commitments for an amount less than the amount being paid for an interest in the Loans, the Letters of Credit or the Commitments by such Lender or (iii) may receive fees or other payments in connection with the transactions contemplated hereby, the Loan Documents or otherwise, including structuring fees, commitment fees, arrangement fees, facility fees, upfront fees, underwriting fees, ticking fees, agency fees, administrative
agent or collateral agent fees, utilization fees, minimum usage fees, letter of credit fees, fronting fees, deal-away or alternate transaction fees, amendment fees, processing fees, term out premiums, banker’s acceptance fees, breakage or other early termination fees or fees similar to the foregoing.
(j) The form of Compliance Certificate attached as Exhibit E to the Fourth Amended Credit Agreement is hereby deleted in its entirety and replaced with the form of Compliance Certificate set forth on Annex II hereto in lieu thereof.
2.Application of Prepayment and Commitment Reduction.
(a) Each party hereto hereby agrees that the Specified Prepayment shall
be applied to the principal repayment installments of the Term Loans in inverse order of maturity (including the final principal payment to be made on the Maturity Date) in accordance with Section 2.05(a) of the Credit Agreement; provided, however, that the Specified Prepayment shall only be applied as a prepayment of the Outstanding Amounts of the Domestic Term Loans and shall not be
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applied to the Outstanding Amounts of the Singapore Term Loans, and each of the Singapore Term Loan Lenders party hereto hereby waives, with respect to the
Specified Prepayment, the requirement contained in Section 2.05(a)(iv) of the Credit Agreement that such Specified Prepayment be applied ratably to the Outstanding Amounts of the Domestic Term Loans and the Singapore Term Loans and agrees that the Specified Prepayment shall only be applied to the Outstanding Amounts of the Domestic Term Loans.
(b) Each party hereto hereby agrees that the Specified Commitment Reduction shall be applied to the Aggregate Revolving Commitments in effect prior to giving effect to this Amendment on a pro rata basis.
(c) After giving effect to the Specified Prepayment and the Specified Commitment Reduction, Schedule 2.01 of the Fourth Amended Credit Agreement will
be replaced with the Schedule 2.01 attached hereto on Annex I.
3.Effectiveness; Conditions Precedent. The effectiveness of this Amendment and the amendments to the Fourth Amended Credit Agreement herein provided shall be effective as of the date hereof upon each of the following conditions precedent having been satisfied (the “Amendment Effective Date”):
(a) the Administrative Agent shall have received counterparts of this Amendment, duly executed by each Borrower, each Guarantor, the Administrative Agent and the Required Lenders;
(b) the Administrative Agent
shall have received the Specified Prepayment; and
(c) any fees and expenses payable to the Administrative Agent (unless waived by the Administrative Agent), (including the reasonable fees and expenses of counsel to the Administrative Agent to the extent invoiced prior to the date hereof) shall have been paid in full (without prejudice to final settling of accounts for such fees and expenses).
4.Consent and Confirmation of the Guarantors. Each of the Guarantors hereby consents, acknowledges and agrees to the amendments set forth herein and hereby confirms and ratifies in all respects the Collateral Documents to which such Guarantor is a party and the Guaranty (including without limitation the continuation of each such Guarantor’s payment and
performance obligations thereunder upon and after the effectiveness of this Amendment and the amendments contemplated hereby) and the enforceability of such Collateral Documents and the Guaranty against such Guarantor in accordance with their respective terms.
5.Representations and Warranties. In order to induce the Administrative Agent and the Lenders to enter into this Amendment, the Borrowers represent and warrant to the Administrative Agent and the Lenders as follows:
a.The representations and warranties contained in Article V of the Credit Agreement and in the other Loan Documents are true and correct on and as of the date
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hereof,
except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct as of such earlier date;
b.The Persons appearing as Guarantors on the signature pages to this Amendment constitute all Persons who are required to be Guarantors pursuant to the terms of the Credit Agreement and the other Loan Documents, including without limitation all Persons who became Material Subsidiaries or were otherwise required to become Guarantors after the Closing Date, and each of such Persons has become and remains a party to the Guaranty as a Guarantor;
c.This Amendment has been duly authorized, executed and delivered by the Borrowers and the Guarantors party hereto and constitutes a legal, valid
and binding obligation of such parties, except as may be limited by general principles of equity or by the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar law affecting creditors’ rights generally; and
d.No Default or Event of Default has occurred and is continuing.
(a) Entire Agreement. This Amendment is a Loan Document. This Amendment, together with the other Loan Documents (collectively, the “Relevant Documents”), 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 relating to such subject matter. No promise, condition, representation or warranty, express or implied, not
set forth in the Relevant Documents shall bind any party hereto, and no such party has relied on any such promise, condition, representation or warranty. Each of the parties hereto acknowledges that, except as otherwise expressly stated in the Relevant Documents, no representations, warranties or commitments, express or implied, have been made by any party to the other in relation to the subject matter hereof or thereof. None of the terms or conditions of this Amendment may be changed, modified, waived or canceled orally or otherwise, except in writing and in accordance with Section 10.01 of the Credit Agreement.
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6.Compliance. The
Borrowing Agent is hereby deemed to be in compliance with the notice provisions of (i) Section 2.05(a) of the Fourth Amended Credit Agreement in connection with the Specified Prepayment and (ii) Section 2.06(a) of the Fourth Amended Credit Agreement in connection with the Specified Commitment Reduction.
7.Full Force and Effect of Amendment. 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 be and remain in full force and effect according to their respective terms.
8.Counterparts. This Amendment 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. Delivery of an executed counterpart of a signature page of this Amendment by telecopy, facsimile or other electronic transmission (including .pdf) shall be effective as delivery of a manually executed counterpart of this Amendment.
9.Governing Law. This Amendment shall in all respects be governed by, and construed in accordance with, the laws of the State of New York.
10.Enforceability. Should any one or more of the provisions of this Amendment 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.
11.References. All
references in any of the Loan Documents to the “Credit Agreement” shall mean the Credit Agreement, as amended hereby.
12.Successors and Assigns. This Amendment shall be binding upon and inure to the benefit of Borrowers, the Administrative Agent, the Guarantors, the Lenders and their respective successors and assignees to the extent such assignees are permitted assignees as provided in Section 10.06 of the Credit Agreement.
13.Syndication Agent. In connection with this Amendment and the Credit Agreement, on and after the date hereof, and subject to Section 9.08 of the Credit Agreement, TD Bank, N.A. shall serve as a Co-Syndication Agent rather than a Co-Documentation Agent.
[Signature
pages follow.]
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IN WITNESS WHEREOF, the parties hereto have caused this instrument to be made, executed and delivered by their duly authorized officers as of the day and year first above written.
