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Exhibit 4.3
AMENDMENT AGREEMENT NO. 1
TO
CREDIT AGREEMENT
THIS AMENDMENT AGREEMENT is made and entered into as of this 12th day
of December, 2000, 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 (the "Agreement") and the
Lenders whose names are subscribed hereto.
W I T N E S S E T H:
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, including Titania, guarantee payment of all Obligations of the
Borrower arising under the Agreement; and
WHEREAS, the Borrower has determined that Titania is prohibited from
guaranteeing the Obligations of the Borrower under state law regulations
applicable to Titania, and the Borrower has requested that the Agreement be
amended and that Titania be released as a Guarantor and the Agent and the
Lenders, subject to the terms and conditions hereof, are willing to make such
amendment and release, as provided 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) The definition of "Guarantors" in SECTION 1.1 is hereby
amended in its entirety so that as amended it shall read as follows:
"`Guarantors' means, at any date, the Wholly-owned
Subsidiaries who are required to be parties to a Guaranty at
such date; provided that Titania shall not be required to be a
Guarantor.'"
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(b) SECTION 9.6(A)(6) is hereby amended in its entirety so
that as amended it shall read as follows:
"(6) the Borrower may sell for not less than book
value the (i) business assets and operations constituting the
food service business of the Borrower and its Subsidiaries and
(ii) assets of or stock in Chile."
(c) SECTION 9.7 is hereby amended by adding a new subsection
(c) thereto which shall read as follows:
"(c) INVESTMENTS IN TITANIA. Notwithstanding any
provision of the definition of "Restricted Investment" or
SECTION 9.7(A) to the contrary, at no time shall the aggregate
amount of Investments in Titania by the Borrower and its
Subsidiaries exceed $1,000,000."
(d) SECTION 9.13 is hereby amended by (i) deleting the Dollar
amount "$5,000,000" appearing therein and inserting in lieu thereof the
Dollar amount "$20,000,000" and (ii) deleting the word "existing" in
the parenthetical phrase at the end of such Section.
3. SUBSIDIARY CONSENTS. Each Subsidiary of the Borrower that has
delivered a Guaranty to the Agent, other than Titania, 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.
4. RELEASE. Each Lender by its execution of this Amendment Agreement
consents to and hereby releases Titania from its guaranty of 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. MASLOWE
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Name: Philip L. Maslowe
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
By: /s/ PHILIP L. MASLOWE
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Name: Philip L. Maslowe
Title: Vice President
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GUARANTORS:
WACKENHUT EDUCATIONAL SERVICES, INC.
WACKENHUT MONITORING SYSTEMS, INC.
DIVERSIFIED CORRECTIONAL SERVICES,
INCORPORATED
WACKENHUT.COM ONLINE STORE, INC.
SAVE-A-FRIEND, INC.
WACKENHUT FINANCIAL, INC.
TUHNEKCAW, INC.
TITANIA INSURANCE COMPANY OF AMERICA, INC.
By: /s/ IAN GREEN
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Name: Ian Green
Title: Vice President
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GUARANTORS:
WACKENHUT RESOURCES, INCORPORATED
WRI EMPLOYERS INSURANCE, INC.
KING STAFFING, INC.
KING TEMPORARY STAFFING, INC.
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.
By: /s/ TERRY P. MAYOTTE
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Name: Terry P. Mayotte
Title: Treasurer
WRI STAFFING, INC.
WRI II, INC.
By: /s/ TERRY P. MAYOTTE
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Name: Terry P. Mayotte
Title: Chief Financial Officer
PROFESSIONAL EMPLOYEE MANAGEMENT, INC.
PROFESSIONAL EMPLOYEE MANAGEMENT II, INC.
PROFESSIONAL EMPLOYEE MANAGEMENT III, INC.
PROFESSIONAL EMPLOYEE MANAGEMENT IV, INC.
PROFESSIONAL EMPLOYEE MANAGEMENT
BENEFITS, INC.
PROFESSIONAL EMPLOYEE MANAGEMENT
SERVICES, INC.
By: /s/ TERRY P. MAYOTTE
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Name: Terry P. Mayotte
Title: Vice President
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GUARANTORS:
WACKENHUT SERVICES, LLC
By: /s/ JACK C. FAULKNER
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Name: Jack C. Faulkner
Title: Secretary
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GUARANTORS:
WACKENHUT OF NEVADA, INC.
By: /s/ ALAN B. BERNSTEIN
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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
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Name: John E. Williams
Title: Managing Director
BANK OF AMERICA, N.A.,
By: /s/ JOHN E. WILLIAMS
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Name: John E. Williams
Title: Managing Director
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SCOTIABANC INC.
By: /s/ FRANK F. SANDLER
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Name: Frank F. Sandler
Title: Director
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FIRST UNION NATIONAL BANK
By: /s/ MARY A. MORGAN
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Name: Mary A. Morgan
Title: Senior Vice President
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SUNTRUST BANK
By: /s/ WILLIAM H. CRAWFORD
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Name: William H. Crawford
Title: Vice President
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DRESDNER BANK LATEINAMERIKA AG,
MIAMI AGENCY
By: /s/ ALAN HILLS /s/ FRANK HUTHNANCE
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Name: Alan Hills Frank Huthnance
Title: Vice President Vice President
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BANCO SANTANDER PR
By: /s/ JOSE ENRIQUE GUZMAN-VIRELLA
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Name: Jose Enrique Guzman-Virella
Title: Senior Corporate Officer
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