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EXHIBIT 4.9
AMENDMENT AGREEMENT NO. 2
TO
REVOLVING CREDIT AND REIMBURSEMENT AGREEMENT
THIS AMENDMENT AGREEMENT made and entered into as of the 28th day of
October, 1996, by and among WACKENHUT CORPORATION, a Florida corporation
(herein called the "Company"), the financial institutions who are signatories
hereto (herein individually called the "Lender" and collectively the
"Lenders"), and NATIONSBANK, NATIONAL ASSOCIATION (SOUTH) (successor by merger
of NationsBank of Florida, National Association), as Agent for the Lenders
(herein called the "Agent").
W I T N E S S E T H:
WHEREAS, the Company, the Agent and the Lenders have entered into a
Revolving Credit and Reimbursement Agreement dated January 5, 1995, as amended
by Amendment Agreement No. 1 (the "Agreement") whereby the Lenders party
thereto have agreed to make loans to the Company and to provide Letters of
Credit; and
WHEREAS, the Subsidiaries of the Company have guaranteed payment of
the Obligations pursuant to Guaranty Agreements dated January 5, 1995, all as
described in the Agreement and other Loan Documents; and
WHEREAS, the Company has requested that the Agreement be amended as
hereinafter provided;
NOW, THEREFORE, the Company, the Lenders and the Agent do hereby agree
as follows:
1. The term "Agreement" as used herein and in Loan Documents shall
mean the Agreement as hereby amended and modified. Unless the context otherwise
requires, all terms used herein without definition shall have the definition
provided therefor in the Agreement.
2. Subject to the conditions hereof, clause (ii) of Section 7.11(a)
is amended in its entirety, effective October 1, 1996, so that as amended it
shall read as follows:
"7.11 Restricted Payments: Joint Venture Investments.
(a) ***
(ii) Directly or indirectly, or through any
Subsidiary, purchase, redeem or retire any shares of
its capital stock of any class or any warrants,
rights or options to purchase or acquire any shares
of its capital stock (other than (x) in exchange for
or out of the net cash proceeds to the
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Company from the substantially concurrent issue or
sale of other shares of capital stock of the Company
or warrants, rights or options to purchase or
acquire any shares of its capital stock, (y)
purchases or acquisitions of shares of Voting Stock
of the Company which were issued pursuant to an
employee stock plan, provided that the aggregate
amount expended therefor does not exceed $250,000 in
any one fiscal year of the Company, and (z)
purchases or acquisitions of shares of Voting Stock
of the Company after October 1, 1996 in the open
market for an aggregate purchase of not to exceed
$5,000,000, provided further, that such amounts
expended shall not exceed that amount necessary in
order to maintain beneficial ownership or control,
directly or indirectly, of 50.1% (by number of
votes) of the Voting Stock of the Company by the
Wackenhut Family Group);"
3. In order to induce the Lenders to enter into this Amendment
Agreement, the Company represents and warrants to the Lenders as follows:
(a) The representations and warranties made by Company in
Article VI of the Agreement are true on and as of the date hereto
except that the financial statements referred to in Section 6.03(a)
shall be those most recently furnished to each Lender pursuant to
Section 7.17;
(b) There has been no material change in the condition,
financial or otherwise, of the Company and its Subsidiaries since the
date of the most recent financial reports of the Company received by
each Lender under Section 7.17 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 Company and its
Subsidiaries are not, and since the date of the most recent financial
report of the Company and its Subsidiaries received by each Lender
under Section 7.17 thereof 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
(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
Company under the Agreement or the Notes either immediately or with
the lapse of time or the giving of notice, or both.
4. Each of the Subsidiaries of the Company have joined in the
execution of this Agreement for the purpose of consenting hereto and hereby
reaffirm their respective guaranty of payment of the Obligations.
5. All instruments and documents incident to the consummation of the
transactions contemplated hereby shall be satisfactory in form and substance to
the Agent, the Lenders and
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their counsel; the Agent shall have received copies of all additional
agreements, instruments and documents which they may reasonably request in
connection therewith, including copies of resolutions of the Company
authorizing the transactions contemplated by this Amendment Agreement, such
documents, when appropriate, to be certified by appropriate corporate or
governmental authorities; and all proceedings of the Company relating to the
matters provided for herein shall be satisfactory to the Agent, the Lenders and
their counsel.
6. 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 preceding or succeeding
breach thereof.
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.
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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.
COMPANY:
WITNESS: WACKENHUT CORPORATION
By:
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Name: Xxxxx X. Mayotte
Title: Treasurer
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GUARANTORS:
WITNESS: WACKENHUT SERVICES, INCORPORATED
WACKENHUT INTERNATIONAL,
INCORPORATED
------------------------- AMERICAN GUARD AND ALERT, INCORPORATED
WACKENHUT AIRLINE SERVICES, INC.
------------------------- WACKENHUT EDUCATION SERVICES, INC.
TITANIA INSURANCE COMPANY OF AMERICA
TUHNEKCAW, INC.
By:
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Name: Xxxxx X. Mayotte
Title: Treasurer
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NATIONSBANK, NATIONAL ASSOCIATION
(SOUTH) in its capacity as Agent
By:
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Name:
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Title:
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NATIONSBANK, NATIONAL ASSOCIATION
(SOUTH) as Lender
By:
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Name:
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Title:
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BANK OF AMERICA ILLINOIS
By:
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Name:
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Title:
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