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EXHIBIT 4
AMENDMENT NUMBER 5 TO
TRANSFER AND ADMINISTRATION AGREEMENT
AMENDMENT NUMBER 5 TO TRANSFER AND ADMINISTRATION AGREEMENT
(this "AMENDMENT"), dated as of March 31, 2000, among WACKENHUT FUNDING
CORPORATION, a Delaware corporation (the "TRANSFEROR") and its successors and
assigns, THE WACKENHUT CORPORATION, a Florida corporation, individually and as
servicer ("WACKENHUT" or the "SERVICER"), ENTERPRISE FUNDING CORPORATION, a
Delaware corporation ("ENTERPRISE" or the "PURCHASER") and its successors
assigns, and BANK OF AMERICA, N.A. (as successor to NATIONSBANK, N.A.), a
national banking association ("BANK OF AMERICA"), as agent for Enterprise and
the Bank Investors (in such capacity, the "AGENT") and as a Bank Investor,
amending that certain Transfer and Administration Agreement dated as of December
30, 1997 among the Transferor, the Servicer, the Purchaser, the Agent and Bank
of America (collectively, the "PARTIES"), as amended to the date hereof by the
First Amendment to Transfer and Administration Agreement dated as of March 24,
1998, among the Parties, the Second Amendment to Transfer and Administration
Agreement dated December 23, 1998, among the Parties, the Third Amendment to the
Transfer and Administration Agreement dated January 29, 1999, among the Parties,
and the Fourth Amendment to the Transfer and Administration Agreement dated
January 28, 2000, among the Parties (collectively, the "ORIGINAL AGREEMENT," and
said agreement as amended by this Amendment, the "AGREEMENT").
WHEREAS, the Transferor has requested that the Purchaser and
the Agent agree to: (a) extend the Commitment Termination Date of the Original
Agreement, and (b) make certain other amendments to the Original Agreement;
WHEREAS, the Original Agreement requires that the consent of
the Transferor, the Servicer, the Purchaser and each Bank Investor be obtained
in order to effect certain of the amendments contemplated herein;
WHEREAS, on the terms and conditions set forth herein, the
parties hereto consent to such amendments;
WHEREAS, capitalized terms used herein shall have the meanings
assigned to such terms in the Original Agreement;
NOW, THEREFORE, in consideration of the premises and mutual
covenants herein contained, the parties hereto agree as follows:
SECTION 1. AMENDMENT TO DEFINITIONS.
(a) The definition of "PROGRAM FEE" is hereby deleted in its
entirety and replaced with the following:
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"PROGRAM FEE" shall have the meaning set forth in the
Fee Letter. If at any time the certificate furnished to the
Agent pursuant to Sections 7.5(a) or (b) shall disclose that
Consolidated Funded Debt (excluding Funded Debt of WCC from
Consolidated Funded Debt) exceeds 40% of Total Capitalization
and does not exceed 50% of Total Capitalization, then 0.25%
shall be added to the Program Fee set forth in the Fee Letter
(such incremental amount, the "Step-up Fee") effective for the
full fiscal quarter immediately following the calculation date
of such covenant.
(b) The definition of "NET INCOME AVAILABLE FOR FIXED CHARGES"
in Appendix C of the Agreement is hereby amended by deleting the period at the
end of clause (iv) and adding the following phrase at the end of such
definition:
"; PROVIDED, HOWEVER, that with respect to an
acquisition of a Subsidiary that is accounted for by Wackenhut
in accordance with GAAP as a "purchase", for the four
fiscal-quarter periods ending next following the date of such
acquisition, all components of Net Income Available for Fixed
Charges shall include the results of operations of the Person
or assets so acquired, which amounts shall be determined on a
historical pro forma basis as if such acquisition had been
consummated as a "pooling of interests"."
(c) The definition of "CONSOLIDATED NET WORTH" in Appendix C
of the Agreement is hereby amended by deleting the final clause thereof, reading
"plus or minus, as the case may be (iv) the cumulative effect of foreign
exchange valuations" and inserting in lieu thereof the following:
"plus (iv) up to $7,000,000 for the cumulative effect
of the change in accounting principles regarding start-up
costs of WCC."
(d) The following definition is added to the Agreement:
"STEP-UP FEE" has the meaning set forth in the
definition of "PROGRAM FEE".
SECTION 2. AMENDMENT TO SECTION 1.4. Section 1.4 of the
Original Agreement is hereby amended to (a) delete the heading "Number of
Undivided Interests" (b) delete the text of Section 1.4 and (c) substitute the
word "[Reserved]" therefor.
SECTION 3. AMENDMENT TO SECTION 1.5(a). Section 1.5(a) of the
Original Agreement is hereby amended to read in its entirety as follows (solely
for convenience, changed text is italicized):
"(a) The "COMMITMENT TERMINATION DATE" shall be the
earlier to occur of (i) JANUARY 26, 2001 (herein, as the same
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may be extended, called the "SCHEDULED COMMITMENT TERMINATION
DATE"), and (ii) the date of Termination of the Commitment
pursuant to SECTION 1.7 or 11.2."
SECTION 4. AMENDMENT TO SECTION 7.1(h). Section 7.1(h) of the
Original Agreement is hereby deleted in its entirety and replaced with the
following:
"(h) MINIMUM NET WORTH. The Transferor shall at all
times maintain a net worth in accordance with GAAP which is
not less than an amount equal to the sum of (i) the Aggregate
Unpaid Balance of all Defaulted Receivables and (ii) the sum
of the Aggregate Unpaid Balance of the three largest
Receivables of the Obligors; PROVIDED, HOWEVER, that in any
case, the net worth shall never be less than 15% of the
Aggregate Unpaid Balance of the Receivables."
SECTION 5. AMENDMENTS TO SECTION 7.7.
Section 7.7(A) of the Original Agreement is hereby deleted in
its entirety and replaced with the following:
"(A) CONSOLIDATED NET WORTH. The Servicer will at all
times keep and maintain Consolidated Net Worth at an amount
not less than (i) 90% of the Servicer and its Subsidiaries
Consolidated Net Worth at December 30, 1997 and (ii) as at the
last day of each succeeding fiscal quarter of the Servicer and
until (but excluding) the last day of the next following
fiscal quarter of the Servicer, the sum of (A) the amount of
Consolidated Net Worth required to be maintained pursuant to
this SECTION 7.7 as at the end of the immediately preceding
fiscal quarter, plus, (B) 50% of Consolidated Net Income (with
no reduction for net losses for any period) for the fiscal
quarter of the Servicer ending on such day, provided that for
the quarter ended December 31, 1998 there shall be added to
Consolidated Net Income up to $7,000,000 for the cumulative
effect of the change in accounting principles regarding
start-up costs of WCC, plus (C) 75% of the net proceeds to the
Servicer from the sale of shares of the Servicer's capital
stock received during the fiscal quarter of the Servicer
ending on such date. The calculation of this covenant shall be
based upon the consolidated financial statements of the
Servicer and its Subsidiaries, including WCC."
Section 7.7(B)(i) of the Original Agreement is hereby deleted
in its entirety and replaced with the following:
"(i) The Servicer will at all times keep and maintain
Consolidated Funded Debt (excluding Funded Debt of WCC from
Consolidated Funded Debt) in an amount not to exceed 50% of
Total Capitalization."
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Section 7.7(B)(ii) of the Original Agreement is hereby deleted
in its entirety and replaced with the following:
"(ii) The Servicer and its Subsidiaries (other than
WCC) will not, at any time, issue, incur, assume, be
or become liable in respect of any Indebtedness other
than (i) INDEBTEDNESS REPRESENTING AMOUNTS RECEIVED
BY THE SERVICER OR ANY SUBSIDIARY IN EXCHANGE FOR THE
TRANSFER OF INTERESTS IN TRADE RECEIVABLES ARISING
UNDER THIS AGREEMENT, (ii) the purchase of products,
merchandise and services in the ordinary course of
business, (iii) Indebtedness outstanding on the
Closing Date, (iv) Indebtedness of a Guarantor to the
Servicer or to another Guarantor, (v) INDEBTEDNESS
ARISING UNDER THAT CERTAIN AMENDED AND RESTATED
REVOLVING CREDIT AND REIMBURSEMENT AGREEMENT AMONG
WACKENHUT AND BANK OF AMERICA, N.A. AS AGENT FOR THE
LENDERS DATED DECEMBER 30, 1997, and (vi) other
Indebtedness in an aggregate amount for the Servicer
and all Subsidiaries (other than WCC) taken as a
whole not greater than $30,000,000."
SECTION 6. CONDITION PRECEDENT. This Amendment shall not
become effective until the Agent shall have executed this Amendment and shall
have received counterparts of this Amendment executed by the Purchaser, the
Transferor, the Servicer and each Bank Investor.
SECTION 7. REPRESENTATIONS AND WARRANTIES. Each of the
Transferor and the Servicer hereby makes to the Purchaser, the Agent and each
Bank Investor on and as of the date hereof, the following representations and
warranties:
(a) AUTHORITY. Each of the Transferor and the
Servicer has the requisite corporate power and authority to
execute and deliver this Amendment and to perform its
obligations hereunder and under the Original Agreement (as
modified hereby). The execution, delivery and performance by
the Transferor and the Servicer of this Amendment and the
performance of the Original Agreement (as modified hereby)
have been duly approved by all necessary corporate action and
no other corporate proceedings are necessary to consummate
such transactions;
(b) ENFORCEABILITY. This Amendment has been duly
executed and delivered by each of the Transferor and the
Servicer. The Original Agreement (as modified hereby) is the
legal, valid and binding obligation of the Transferor and the
Servicer enforceable against the Transferor and the Servicer
in accordance with its terms, and is in full force and effect;
and
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(c) REPRESENTATIONS AND WARRANTIES. The
representations and warranties of the Transferor and the
Servicer contained in the Original Agreement (other than any
such representations or warranties that, by their terms, are
specifically made as of a date other than the date hereof) are
correct on and as of the date hereof as though made on and as
of the date hereof.
SECTION 8. REFERENCE TO AND EFFECT ON THE ORIGINAL AGREEMENT.
Except as specifically amended and modified above, the
Original Agreement is and shall continue to be in full force and effect and is
hereby in all respects ratified and confirmed.
The execution, delivery and effectiveness of this Amendment
shall not operate as waiver of any right, power or remedy of the Purchaser, the
Agent or the Bank Investor(s) under the Agreement, nor constitute a waiver of
any provision of the Original Agreement.
SECTION 9. NO TERMINATION EVENT. No event has occurred and is
continuing that constitutes a Termination Event or an Unmatured Termination
Event.
SECTION 10. AMENDMENT AND WAIVER. No provision hereof may be
amended, waived, supplemented, restated, discharged or terminated without the
written consent of the Transferor, the Purchaser, the Agent and the Majority
Investors.
SECTION 11. SUCCESSORS AND ASSIGNS. This Amendment shall bind,
and the benefits hereof shall inure to the parties hereof and their respective
successors and permitted assigns; PROVIDED, HOWEVER, the Transferor may not
assign any of its rights or delegate any of its duties under this Amendment
without the prior written consent of the Purchaser.
SECTION 12. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. THE
TRANSFEROR HEREBY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AND OF ANY NEW YORK STATE
COURT SITTING IN THE CITY OF NEW YORK FOR PURPOSES OF ALL LEGAL PROCEEDINGS
ARISING OUT OF OR RELATING TO THIS AMENDMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
SECTION 13. SEVERABILITY; COUNTERPARTS. This Amendment may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which when taken together shall constitute one and the same
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instrument. Any provisions of this Amendment which are prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
SECTION 14. CAPTIONS. The captions in this Amendment are for
convenience of reference only and shall not define or limit any of the terms or
provisions hereof.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Amendment as of the date first written above.
ENTERPRISE FUNDING CORPORATION,
as Purchaser
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Vice President
WACKENHUT FUNDING CORPORATION
as Transferor
By: /s/ Xxxxxxxx X. Xxxxxxx
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Name: Xxxxxxxx X. Xxxxxxx
Title: Vice President
THE WACKENHUT CORPORATION,
as Servicer
By: /s/ Xxxx Xxxxx
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Name: Xxxx Xxxxx
Title: V.P. Corporate Controller
BANK OF AMERICA, N.A. (as successor
to NATIONSBANK, N.A.),
as Agent and a Bank Investor
By: /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
Title: Vice President
SUNTRUST BANK, SUCCESSOR-IN-INTEREST
TO SUNTRUST BANK, SOUTH FLORIDA, N.A.,
as a Bank Investor
By: /s/ Xxx X. Xxxx
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Name: Xxx X. Xxxx
Title: Vice President
THE BANK OF NOVA SCOTIA,
as a Bank Investor
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Managing Director
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