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Exhibit 4.4
AMENDED AND RESTATED TRANSFER AND ADMINISTRATION AGREEMENT
Dated as of January 26, 2001
THIS IS AN AMENDED AND RESTATED TRANSFER AND ADMINISTRATION
AGREEMENT, 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 and restating
that certain Transfer and Administration Agreement dated as of December 30, 1997
among the Transferor, the Servicer, Enterprise, Bank of America as agent for
Enterprise and the Bank Investors and as a Bank Investor (collectively, the
"Parties"), as amended 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 as of December 23, 1998, among the
Parties, the Third Amendment to the Transfer and Administration Agreement dated
as of January 29, 1999, among the Parties, the Fourth Amendment to the Transfer
and Administration Agreement dated as of January 28, 2000, among the Parties and
the Fifth Amendment to the Transfer and Administration Agreement, dated as of
March 31, 2000 among the Parties (collectively, the "Original Agreement," and
said agreement as amended and restated hereby, the "Agreement"). Unless
otherwise indicated, capitalized terms used in this Agreement are defined in
Appendix A.
Background
1. The Originator has originated, and in the future will
originate, Receivables in the ordinary course of its business, and the
Originator has sold, and from time to time in the future will sell such
Receivables to the Seller pursuant to the Purchase and Sale Agreement.
2. The Seller will from time to time sell such Receivables
(together with Receivables originated by the Seller from time to time in the
ordinary course of its business) to the Transferor pursuant to the terms of the
Receivables Purchase Agreement.
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3. Transferor has requested the Purchaser and the Bank Investors
to purchase, and the Purchaser may agree, and the Bank Investors have agreed, to
purchase, subject to the terms and conditions contained in this Agreement,
undivided interests in such Receivables, referred to herein as Undivided
Interests, from Transferor from time to time during the term of this Agreement.
4. Transferor, the Purchaser and the Bank Investors also desire
that, subject to the terms and conditions of this Agreement, certain of the
daily Collections in respect of the Undivided Interests in the Receivables be
reinvested in Receivables through the sale by the Transferor to the Purchaser or
the Bank Investors, as the case may be, of additional Undivided Interests in the
Receivables, such daily reinvestment of Collections to be effected by an
automatic daily adjustment to the Purchaser's Undivided Interest or Bank
Investor's as the case may be, and to be intended to permit the Purchaser or the
Bank Investors, as the case may be, to maintain its Purchaser's Investment fully
invested in uncollected Pool Receivables.
5. One of the Bank Investors under the Original Agreement has
determined not to renew its Commitment under the Original Agreement and its
Commitment will be assumed by Bank of America in its capacity as Bank Investor.
6. Bank of America has been requested, and is willing, to act as
the Agent for the Purchaser and the Bank Investors.
NOW, THEREFORE, in consideration of the premises and the
mutual agreements herein contained, the parties hereto agree as follows:
ARTICLE I
THE COMMITMENT
SECTION 1.1. Commitment. On the terms and subject to the
conditions set forth in this Agreement (including Article V):
(a) Purchases. Upon the terms and subject to the
conditions herein set forth the Transferor may, at its option, convey,
transfer and assign to the Agent, on behalf of the Purchaser or the
Agent, on behalf of the Bank Investors, as applicable, and the Agent,
on behalf of the Purchaser may, provided the Purchase Termination Date
shall not have occurred, at the Purchaser's option, or the Agent, on
behalf of the Bank Investors, provided that the Purchase
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Termination Date shall not have occurred and that the Bank Investors
shall have previously accepted the assignment by the Purchaser of all
of its interest in the Undivided Interests, shall, if so requested by
the Transferor, accept such conveyance, transfer and assignment from
the Transferor, without recourse except as provided herein, undivided
percentage ownership interests in the Receivables, together with
Related Security, Collections and Proceeds with respect thereto (each
such conveyance, transfer and assignment, a "Purchase"). Each Purchase
shall be in accordance with Section 1.3(b). Under no circumstances
shall Reinvestments be deemed to be Purchases.
(b) Reinvestments. Pursuant to Section 3.1, during the
period from the date hereof to the Purchase Termination Date, Servicer
shall cause certain of the Collections in respect of the Undivided
Interests to be applied to the purchase of additional undivided
interests in Pool Receivables, thereby resulting in an appropriate
readjustment of such Undivided Interests. Each such purchase of an
additional undivided interest pursuant to Section 3.1 is herein called
a "Reinvestment". The Bank Investors' obligation to make such Purchases
and Reinvestments is herein called the "Commitment" and the amount
thereof shall be equal to the Maximum Purchase Limit.
SECTION 1.2. Purchase and Reinvestment Limits. Under no
circumstances shall the Agent, on behalf of the Purchaser or the Bank Investors,
as applicable, make any Purchase or Reinvestment to the extent that, after
giving effect to such Purchase or Reinvestment, as the case may be:
(a) Purchase Limit. The Aggregate Purchaser Investments
would exceed an amount (the "Purchase Limit") equal to the lesser of
(x) $75,000,000 as such amount may be reduced pursuant to Section 1.7
(the "Maximum Purchase Limit"), and (y) the then Net Pool Balance; or
(b) Required Allocations Limit. The Aggregate Required
Allocations would exceed an amount (the "Required Allocations Limit")
equal to 100% of the Net Pool Balance (as defined in Section 2.3); or
(c) The sum of the Aggregate Purchaser Investments plus
the Interest Component of all outstanding Related Commercial Paper
would exceed the Facility Limit.
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SECTION 1.3. Making Purchases from the Transferor. (a) Notice
of Purchase. Each Purchase from the Transferor shall be made by the Agent on
behalf of the Purchaser or the Agent on behalf of the Bank Investors, as
applicable, and shall be made on notice from the Transferor to the Agent
received by the Agent not later than 11:00 a.m. (New York time) on the Business
Day next preceding the date of such proposed Purchase; it being understood and
agreed that once any proposed Purchase hereunder is acquired on behalf of the
Bank Investors, the Agent, on behalf of such Bank Investors, shall be required
to purchase, and the Purchaser shall be required to sell, all Undivided
Interests held by the Agent on behalf of the Purchaser in accordance with
Section 13.5 and thereafter no additional Purchases shall be acquired on behalf
of the Purchaser hereunder. If such notice is received after 11:00 a.m. (New
York time) by the Agent, such notice shall be deemed provided on the next
following Business Day. Each such notice of a proposed Purchase shall specify
the desired amount and date of such Purchase and the desired duration of the
initial Yield Periods for the resulting Undivided Interests. The Agent shall
select the duration of such initial, and each subsequent, Yield Period with
regard to the Purchaser's Investment Percentage of such Purchase in its
discretion; provided that the Agent shall use reasonable efforts, taking into
account market conditions, to accommodate the Transferor's preferences.
(b) Amount of Purchase. The amount of each Purchase shall
be equal to the lesser of (x) the amount proposed by the Transferor pursuant to
Section 1.3(a) and (y) the maximum amount permitted for the Purchaser or the
Bank Investors, as the case may be under Section 1.2.
(c) Funding of Purchase. On the date of each Purchase,
upon satisfaction of the applicable conditions set forth in Article V, the
Purchaser or each Bank Investor, as the case may be, shall make available to the
Agent at the address of its office set forth on the signature pages hereto, the
dollar amount of the Purchase Price, in the case of the Purchaser, or in the
case of the Bank Investors, the amount of each Bank Investor's Percentage of
such Purchase Price (determined pursuant to Section 13.5(a)) in same day funds,
and the Agent will make such funds immediately available to the Transferor at
such office.
SECTION 1.4. [Reserved]
SECTION 1.5. Commitment Termination Date. (a) The "Commitment
Termination Date" shall be January 25, 2002 (herein, as the same may be
extended, called the "Scheduled Commitment Termination Date").
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(b) The then Scheduled Commitment Termination Date may be
extended from time to time beginning with January 25, 2002, by written notice of
request given by the Transferor to the Agent at least 75 days before the then
Scheduled Commitment Termination Date, and written notice of acceptance given by
the Agent and the Bank Investors to the Transferor not later than 15 days prior
to such Scheduled Commitment Termination Date. No such extension shall be
effective unless the Agent shall provide such notice of acceptance to the
Transferor.
SECTION 1.6. Purchase Termination Date. (a) As to the
Purchaser or any Bank Investor, the "Purchase Termination Date" with respect to
such entity shall be the earlier to occur of (i) the Commitment Termination
Date, (ii) the day the Purchase Termination Date is declared or occurs
pursuant to Section 11.2, (iii) the date of termination of the Commitment with
respect to Purchases by the Purchaser pursuant to subsection (b) hereof, and
(iv) the date the Purchase Limit is reduced to zero.
(b) The Commitment shall terminate with respect to
Purchases by the Purchaser and the Purchaser shall have no obligation to make
any further Purchases or Reinvestments hereunder, on the date of termination of
the commitment of any (i) Enterprise Liquidity Provider under an Enterprise
Liquidity Agreement or (ii) Enterprise Credit Support Provider under an
Enterprise Credit Support Agreement. The Purchaser agrees to give the Transferor
(with a copy to the Agent) at least 30 days' prior written notice, unless
circumstances shall not permit such 30 days' notice, of the termination of the
Commitment with respect to Purchases by the Purchaser pursuant to the foregoing
sentence, but failure to give or delay in giving such notice shall not prevent
or delay such termination.
(c) The provisions of Section 3.1 or Section 3.2, as
applicable, shall apply with respect to the Purchaser's Investment until such
time as the Purchaser has or the Bank Investors, as applicable, have received
the return of the Aggregate Purchaser's Investment, Earned Discount thereon and
all other amounts due to the Purchaser or the Bank Investors, as the case may
be, at which time the Purchaser's or the Bank Investors', as the case may be,
rights and obligations under this Agreement shall terminate.
SECTION 1.7. Voluntary Termination of Commitment or Reduction
of Maximum Purchase Limit. The Transferor may, upon at least five Business Days'
notice to the Agent, terminate the Commitment in whole or reduce in part the
unused portion of the Maximum Purchase Limit; provided, however that (a) each
partial
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reduction shall be in an amount equal to $5,000,000 or an integral multiple
thereof and (b) after giving effect to such reduction, the remaining Maximum
Purchase Limit will not be less than $20,000,000 provided however, that no
reduction of the Maximum Purchase Limit shall occur without a corresponding
reduction of the Facility Limit, that in an amount equal to the product of (i)
the amount of the proposed reduction in the Maximum Purchase Limit and (ii)
1.02, provided further however, that in no event shall the Facility Limit be
reduced below an amount equal to the greater of (A) the product of (i) the
Maximum Purchase Limit and (ii) 1.02 and (B) the Aggregate Purchaser's
Investments .
SECTION 1.8. Limitation of Ownership Interest. Nothing in this
Agreement shall be interpreted as providing the Purchaser or any Bank Investor
with an ownership interest in Receivables that are not Pool Receivables.
SECTION 1.9. Special Undivided Interests. The Transferor shall
maintain with the Purchaser or with the Bank Investors, as the case may be, at
least one Undivided Interest, the Purchaser's Investment in which shall be no
less than $4,000,000 (unless otherwise agreed by the Agent) and which shall have
a related Yield Period of no more than 35 days ending on the twenty-fourth day
of each calendar month (or if such day is not a Business Day, the next
succeeding Business Day) and beginning on the day immediately succeeding the
last day of the previous Yield Period (provided that the first Yield Period
shall begin on the date of the first Purchase hereunder). If on any day the
Undivided Interest required to be maintained with the Purchaser or with the Bank
Investors pursuant to this Section 1.9 shall for any reason have a Purchaser's
Investment of less than $4,000,000, the Agent shall manage the Yield Periods
related to the Purchaser's Investment other Undivided Interests in a manner such
that within 60 days of such day the Purchaser's Investment of such Undivided
Interest required to be maintained pursuant to this Section 1.9 shall again
equal $4,000,000.
SECTION 1.10. Benefits of Agreement. In the event the Bank
Investors acquire Undivided Interests hereunder, each Bank Investor shall be
equally and ratably entitled to the benefits of this Agreement, the other
Agreement Documents and the Receivables Pool, the Related Security and the
Collections without preference, priority or distinction on account of the actual
timing of the filing of any financing statements under the UCC, all in
accordance with the terms and provisions of this Agreement and the other
Agreement Documents.
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ARTICLE II
UNDIVIDED INTEREST AND PURCHASER'S SHARE
SECTION 2.1. Undivided Interest. (a) Definition and
Computation of Undivided Interest. For purposes of this Agreement, "Undivided
Interest" for the Purchaser and/or Bank Investors, as applicable, means, as the
context may require (i) an undivided ownership interest, in a percentage
determined from time to time as provided in clause (ii) below, in (A) all then
outstanding Pool Receivables, (B) all Related Security with respect to such Pool
Receivables, and (C) all Collections with respect to, and other proceeds of,
such Pool Receivables and Related Security; and (ii) at any time, the quotient,
expressed as a percentage, obtained by dividing the Required Allocation for such
Undivided Interest by the Net Pool Balance. Each Undivided Interest shall be
computed as follows:
UI = RA = PI + DF + DR + LR + SFR
--- -------------------------------
NPB NPB
where:
UI = the Undivided Interest at any time;
RA = the Required Allocations of such undivided Interest at such
time, which shall be an amount at any time equal to the amount
of the numerator of the fraction set forth above;
PI = the Purchaser's Investment of such Undivided Interest at such
time as determined pursuant to Section 2.2;
DF = the Discount Factor of such Undivided Interest at such time,
as determined pursuant to Part I of Appendix B;
DR = the Dilution Reserve of such Undivided Interest at such time,
as determined pursuant to Part II of Appendix B;
LR = the Loss Reserve of such Undivided Interest at such time, as
determined pursuant to Part II of Appendix B;
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SFR = the Servicer's Fee Reserve of such Undivided Interest at such
time, as determined pursuant to Part III of Appendix B; and
NPB = the Net Pool Balance at such time, as determined pursuant to
Section 2.3.
The "related" Undivided Interest with respect to any of the foregoing items
shall mean the Undivided Interest as to which such item is calculated.
(b) Frequency of Computation of Purchaser's Interest.
Each Undivided Interest shall initially be computed as of the opening of
business of Servicer on the date of Purchase of such Undivided Interest from the
Transferor, and such Undivided Interest shall be recomputed upon receipt of each
Periodic Report. The Agent on behalf of the Purchaser or the Bank Investors, as
the case may be, may at any time request Servicer to recompute its Undivided
Interests. In addition, until such Undivided Interest shall be reduced to zero,
such Undivided Interest shall be deemed to be automatically recomputed as of the
close of business of Servicer on each day (other than a day on which an actual
recomputation is done), and, as so recomputed, shall constitute the percentage
ownership interest in Pool Receivables held by the Purchaser or the Bank
Investors, as the case may be, on such day. Such Undivided Interest shall become
zero at such time as the Purchaser, or the Bank Investors, as the case may be,
shall have received the accrued Earned Discount for such Undivided Interest,
shall have recovered the Purchaser's Investment of such Undivided Interest and
shall have received all other amounts payable to the Purchaser or the Bank
Investors, as applicable, pursuant to this Agreement in respect of such
Undivided Interest and Servicer shall have received the accrued Servicer's Fee
for such Undivided Interest. Such Undivided Interest shall remain constant from
the time as of which any such computation or recomputation is made until the
time as of which the next such recomputations if any, shall be made.
SECTION 2.2. Purchaser's Investment. (a) Subject to
subsections (b) and (c), the "Purchaser's Investment" of an Undivided Interest
owned by the Purchaser or any Bank Investor at any time means an amount equal
to:
(i) the aggregate of the amounts theretofore paid by the
Purchaser or the Bank Investors, to the Transferor (and, in the case of
the Bank Investors, to the Purchaser) for the acquisition of such
Undivided Interest (A) by Purchase pursuant to Sections 1.1(a)
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and 1.3 and (B) by Reinvestments pursuant to Sections 1.1(b) and 3.1,
and (C) in the case of the Bank Investors, pursuant to Section 13.5,
less
(ii) the aggregate amount of Collections theretofore
received and distributed on account of the Purchaser's Investment
pursuant to Sections 3.1 and 3.2 (other than any portion allocable to
Earned Discount pursuant to Sections 3.1 and 3.2 hereof).
(b) Solely for purposes of calculating the Earned
Discount (and each component thereof) with respect to a portion of an Undivided
Interest purchased or funded by an Enterprise Liquidity Provider or Enterprise
Credit Support Provider pursuant to the proviso to the definition of "Earned
Discount" in Appendix B:
(i) "Purchaser's Investment" of any portion of an
Undivided Interest owned by an Enterprise Liquidity Provider or
otherwise funded pursuant to an Enterprise Liquidity Agreement shall be
deemed to be the amount paid to Enterprise by such Enterprise Liquidity
Provider as the purchase price of, or the original principal amount
loaned with respect to, such portion (less any portion of such purchase
price or principal amount allocable to Earned Discount accrued and
unpaid at the time of purchase or funding by such Enterprise Liquidity
Provider), as reduced from time to time by Collections indefeasibly
received and distributed to such Enterprise Liquidity Provider on
account of such purchase price or principal amount (other than any
portion allocable to Earned Discount pursuant to Sections 3.1 and 3.2
hereof);
(ii) "Purchaser's Investment" of any portion of an
Undivided Interest funded under an Enterprise Credit Support Agreement
shall be deemed to be the principal amount of the advance or drawing
under such Enterprise Credit Support Agreement with respect to such
portion (less the amount, if any, of such advance or drawing used to
fund Earned Discount accrued and unpaid at the time of the making of
such advance or drawing), as reduced by any payments indefeasibly made
by Enterprise or the Enterprise Liquidity Provider to the Enterprise
Credit Support Provider in reimbursement of such drawing or repayment
of such advance, as the case may be (less any amount allocable to such
accrued and unpaid Earned Discount); and
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(iii) "Purchaser's Investment" of any other portion of an
Undivided Interest shall mean such Purchaser's Investment of such
Undivided Interest less the sum of such Purchaser's Investments of all
portions of such Undivided Interest described in clauses (i) and (ii)
above, calculated in accordance with such clauses (i) and (ii), as
applicable.
(c) The Purchaser's Investment shall not be considered
reduced by any distribution of any portion of Collections if at any time such
distribution is rescinded or must otherwise be returned for any reason.
(d) The "related" Purchaser's Investment with regard to a
Yield Period or Undivided Interest (or portion thereof) means the Purchaser's
Investment calculated with regard to such Yield Period or Undivided Interest (or
such portion), as the case may be.
SECTION 2.3. Net Pool-Balance. (a) The "Net Pool Balance" at
any time means an amount equal to:
(i) the aggregate Unpaid Balance of the Eligible
Receivables in the Receivables Pool at such time, minus
(ii) the aggregate (for all Obligors) of the amounts by
which (x) the Unpaid Balance of all Pool Receivables of each Obligor
exceeds (y) the Concentration Limit for such Obligor at such time.
(b) "Concentration Limits": (i) the aggregate
Concentration Limit for any Obligor or Government Obligor at any time means the
greater of (x) the Special Concentration Limit, if any, for such Obligor and (y)
2.0% of the Aggregate Unpaid Balance of the Eligible Receivables in the
Receivables Pool at such time;
(ii) the aggregate Concentration Limit for all
Obligors with respect to Receivables originated by Wackenhut
Airline Services, Inc. shall be 10% of the Aggregate Unpaid
Balance of the Eligible Receivables in the Receivables Pool at
any time;
(iii) the aggregate Concentration Limit for all
Obligors with respect to Receivables for which the related
service has not yet been rendered by the Seller or an
Originator shall be 2% of the Aggregate Unpaid Balance of the
Eligible Receivables in the Receivables Pool at any time;
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(iv) the aggregate Concentration Limit for all
Government Obligors shall be 15% of the Aggregate Unpaid Balance of the
Eligible Receivables in the Receivables Pool at any time; and
(v) the aggregate Concentration Limit for all
Obligors with respect to Receivables which are required to be paid in
full not less than 31 days nor more than 60 days after the billing
thereof, shall be 10% of the Aggregate Unpaid Balance of the Eligible
Receivables in the Receivables Pool at any time, provided, however,
that the Agent may, in its sole discretion, determine to reduce this
percentage to 0% at any time upon three (3) days prior written notice
to the Transferor and Servicer.
(c) "Special Concentration Limit" for any Obligor means
the amount designated from time to time as such by the Agent with regard to any
Obligor in a writing delivered to the Transferor (it being understood that the
most recent writing at any time delivered to the Transferor shall supersede each
previous writing); provided however, that the Special Concentration Limits in
effect as of the date hereof shall be as set forth on Schedule 2.3(b) hereto.
(d) In the case of any Obligor which is an Affiliate of
any other Obligor, the Concentration Limit, the Special Concentration Limit, if
any, and the aggregate Unpaid Balance of Pool Receivables of such Obligors shall
be calculated as if such Obligors were one Obligor.
SECTION 2.4. Shares.
(a) Aggregate Purchaser's Share. The Purchaser's, or the
Bank Investors', as the case may be, "Aggregate Purchaser's Share" of
Collections of Pool Receivables received (or deemed received) by the Transferor
or Servicer on any day means an amount calculated by the Servicer (subject to
recalculation by any Agent) equal to the product of:
(i) the amount of all Collections of Pool Receivables
received (or deemed received) by the Transferor or Servicer on such
day, times
(ii) the Aggregate Required Allocations divided by the Net
Pool Balance.
(b) Purchaser's Share. With respect to each Undivided
Interest, the related "Purchaser's Share" of Collections of Pool
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Receivables received (or deemed received) by the Transferor or Servicer on any
day means an amount equal to the product of:
(i) the Aggregate Purchaser's Share of Collections for
such day, times
(ii) (A) if such day is not a Run Off Day, the quotient of (1)
such Undivided Interest on such day, expressed as a decimal divided by
(2) all of the Undivided Interests on such day, expressed as a decimal,
(B) if such day is a Run Off Day, the quotient of (1)
such Undivided Interest on the first Run Off Day to have occurred
during the then current Run Off Period, expressed as a decimal, divided
by (2) all of the Undivided Interests on such day, expressed as a
decimal; provided that after such time as an Undivided Interest shall
equal zero, the Purchaser's Share of Collections therefor shall also
equal zero, and
(C) each Bank Investor shall share pro rata in the
Aggregate Purchaser's Share.
ARTICLE III
SETTLEMENTS
SECTION 3.1. Non-Run Off Settlement Procedures for
Collections. (a) Daily Procedure. On each day (other than a Run Off Day) in any
Yield Period for any Undivided Interest, Servicer shall deem an amount equal to
the Purchaser's Share but not in excess of the Aggregate Purchaser's Share (as
determined in Section 2.4) of Collections of Pool Receivables received or deemed
received on such day to be received in respect of such Undivided Interest; and
(i) out of the Purchaser's Share of such Collections,
hold in trust for the benefit of the Purchaser or the Bank Investors,
as the case may be, of such Undivided Interest an amount equal to the
related Earned Discount and related Servicer's Fee accrued through such
day and not previously so held for the benefit of the Purchaser or the
Bank Investors, as the case may be,
(ii) apply an amount equal to the remainder of the
Purchaser's Share of such Collections (the "Remaining Collections") to
reduce the Purchaser's Investment of
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such Undivided Interest (it being understood that such amount need not
be physically paid to the Purchaser or the Bank Investors under this
clause (ii)),
(iii) subject to Section 3.3, after such reduction, (A)
apply such Remaining Collections to the Reinvestment, for the benefit
of the Purchaser or the Bank Investor, as the case may be, of
additional undivided interests in Pool Receivables by recomputation of
such Undivided Interest pursuant to Section 2.1 as of the end of such
day, thereby increasing the Purchaser's Investment, and (B) pay to the
Transferor such Remaining Collections.
The recomputed Undivided Interest shall constitute the percentage ownership
interest in Pool Receivables on such day held by the Purchaser or the Bank
Investors, as the case may be, with regard to such Undivided Interest.
(b) Settlement Date Procedure. On the Settlement Date for
each Undivided Interest, for each day in the related Yield Period of such
Settlement Period that is not a Run Off Day for such Undivided Interest, out of
the related Purchaser's Share of Collections for each such Undivided Interest,
Servicer shall deposit to the Agent's account for the Purchaser, or the Bank
Investors, whichever then holds such Undivided Interest, as described in Section
3.5, the amounts set aside as described in Section 3.1(a)(i) and the amounts, if
any, set aside pursuant to Section 3.3(b) or (c) for payment to the Agent on
such Settlement Date; provided, however, that if the Agent gives its consent
(which consent may be revoked at any time), Servicer may retain amounts which
would otherwise be deposited in respect of Servicer's Fee, in which case no
distribution shall be made in respect of Servicer's Fee under clause (c) below.
(c) Order of Application. Upon receipt by the Agent of
funds distributed pursuant to subsection (b) in respect of an Undivided Interest
owned by the Purchaser or the Bank Investors, as the case may be, the Agent
shall distribute such funds first, (i) to the Purchaser or the Bank Investors,
as applicable, in payment of the accrued and unpaid Earned Discount and Program
Fee for such Undivided Interest until paid in full, then (ii) to Servicer in
payment of the accrued and unpaid Servicer's Fee payable with respect to such
Undivided Interest until paid in full, and (iii) in the case of any amounts set
aside pursuant to Section 3.3(b) or (c), to the Purchaser or the Bank Investors,
as applicable, in reduction of the Purchaser's Investment therein.
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SECTION 3.2. Run Off-Settlement Procedures for Collections.
(a) Daily Procedure. On each Run Off Day occurring in any Yield Period for an
Undivided Interest, Servicer shall set aside and hold in trust for the Purchaser
or the Bank Investors, as appropriate, the Purchaser's Share of the Collections
of Pool Receivables in respect of such Undivided Interest for such Run Off Day
but not in excess of the Aggregate Purchaser's Share and, if requested in
writing by the Agent (in its sole discretion), by depositing such Collections
within one Business Day of the Servicer's receipt thereof into a bank account at
the Agent on behalf of the Purchaser or the Bank Investors in which no other
funds shall be deposited.
(b) Settlement Date Procedure. On each Settlement Date
for each Undivided Interest, if one or more Run Off Days for such Undivided
Interest occurred during the related Yield Period for the Settlement Period
ending on such Settlement Date for such Undivided Interest, Servicer shall
deposit to the account of the Agent for the benefit of the Purchaser or the Bank
Investors then owning such Undivided Interest, as described in Section 3.5, the
amounts set aside pursuant to Section 3.2(a) out of the Purchaser's Share of
Collections during such Settlement Period, but not to exceed the sum of (i) the
accrued and unpaid Earned Discount, (ii) the Purchaser's Investment of such
Undivided Interest, (iii) the aggregate of other amounts owed hereunder by the
Transferor to the Purchaser, any Bank Investor or the Agent in respect of such
Undivided Interest, and (iv) the accrued Servicer's Fee payable with respect to
such Undivided Interest. If no Termination Event or Unmatured Termination Event
shall have occurred and be continuing, any amounts set aside pursuant to the
first sentence of this Section 3.2 and not required to be deposited to the
Agent's account pursuant to the next preceding sentence shall be paid to the
Transferor by Servicer.
(c) Order of Application. Upon receipt by the Agent of
funds deposited to its account pursuant to Section 3.2(b), the Agent shall
distribute such funds (i) to the Purchaser or the Bank Investors, as the case
may be, or to the Agent (as the case may be) (A) in payment of the accrued and
unpaid Earned Discount and Program Fee for such Undivided Interest, (B) in
reduction of the Purchaser's Investment of such Undivided Interest and (C) in
payment of any other amounts owed by the Transferor hereunder to the Purchaser
or the Agent, in each case until reduced to zero, and (ii) to Servicer in
payment of the accrued and unpaid Servicer's Fee payable with respect to such
Undivided Interest, also until reduced to zero. If there shall be insufficient
funds on deposit for the Agent to distribute funds in payment in full of the
aforementioned amounts, the Agent shall distribute funds
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on deposit, first, in payment of the Earned Discount and Program Fee for such
Undivided Interest, second, in payment of the Servicer's Fee payable with
respect to such Undivided Interest, if any, (if Servicer is not the Transferor
or an Affiliate of the Transferor), third, in reduction of Purchaser's
Investment of such Undivided Interest, fourth, in payment of any other amounts
payable to the Purchaser, any Bank Investor, or to the Agent hereunder, and
fifth, in payment of the Servicer's Fee payable with respect to such Undivided
Interest (if Servicer is the Transferor or an Affiliate of the Transferor).
SECTION 3.3. Special Settlement Procedures: Reduction of
Purchaser's Investment, Etc. (a) Deemed Collections. If on any day:
(i) the Unpaid Balance of any Pool Receivable is:
(A) reduced as a result of any defective, rejected or
returned merchandise or services, any cash discount, or any
adjustment by the Transferor, any Originator or Seller or any
Affiliate of the Transferor or any Originator or Seller; or
(B) reduced or cancelled as a result of a setoff in
respect of any claim by the Obligor thereof against the
Transferor, any Originator or Seller or any Affiliate of the
Transferor or any Originator or Seller (whether such claim
arises out of the same or a related or an unrelated
transaction); or
(C) reduced on account of the obligation of the
Transferor to pay to the related Obligor any rebate or refund;
or
(ii) any of the representations or warranties of the
Transferor set forth in Section 6.1(l) or (p) is no longer true with
respect to a Pool Receivable,
then, on such day, Servicer shall be deemed to have received a Collection of
such Pool Receivable:
(I) in the case of clause (i) above, in the amount of
such reduction or cancellation; and
(II) in the case of clause (ii) above, in the amount
of the Unpaid Balance of such Pool Receivable.
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(b) Unreinvested Collections. Collections that may not be
reinvested by means of Reinvestments in an Undivided Interest on account of the
application of the Required Allocations Limit or the Purchase Limit pursuant to
Section 1.2 shall be so reinvested as soon as it is possible to do so without
violating such Required Allocations Limit or Purchase Limit, as the case may be.
To the extent and so long as such Collections may not be so reinvested, Servicer
shall hold such Collections ratably in trust for the benefit of the Purchaser or
the Bank Investors, as the case may be, and, if requested by the Agent, in a
separate deposit account with the Agent containing only the Purchaser's Share of
such Collections and no other funds, for payment to the Agent on the next
following Settlement Date for application to the next maturing Undivided
Interests.
(c) The Transferor's Reduction of Aggregate Purchaser's
Investment. If at any time the Transferor shall wish to cause the reduction of
the Aggregate Purchaser's Investment (but not to commence the liquidation, or
reduction to zero, of all Undivided Interests), the Transferor may do so as
follows:
(i) the Transferor shall give the Agent at least three
Business Days' prior written notice thereof (including the amount of
such proposed reduction and the proposed date on which such reduction
will commence) and, if applicable, shall cause the reduction to be
allocated ratably among the Bank Investors such that each Bank Investor
shall receive its pro rata share of the aggregate amount of such
proposed reductions;
(ii) on the proposed date of commencement of such
reduction and on each day thereafter, Servicer shall refrain from
reinvesting Remaining Collections in Undivided Interests, until the
amount thereof not so reinvested shall equal the desired amount of
reduction for the Purchaser or the Bank Investors, as the case may be;
and
(iii) Servicer shall hold such Collections for the benefit
of the Purchaser or the Bank Investors, as the case may be, for the
payment to the Agent for each Undivided Interest proposed to be reduced
in connection herewith, in which such Collections are accumulated, and
such amounts shall be applied to reduce the Purchaser's Investment in
such Undivided Interests in accordance with the provisos hereto and
with regard to any Undivided Interest, the related Purchaser's
Investment of such Undivided Interest shall be deemed reduced
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in the amount to be paid to the Agent only when in fact finally so
paid;
provided that,
(A) any such reduction may only be effected on the
last day of the related Yield Period for any Undivided
Interest the related Purchaser's Investment in which has been
requested to be reduced and only to the extent that after
giving effect to any such reduction the remaining Purchaser's
Investment in such Undivided Interest shall not be less than
$1,000,000 (unless the Purchaser's Investment of such
Undivided Interest shall thereby be reduced to zero) and shall
be in an integral multiple of $100,000,
(B) if the Transferor shall commence any voluntary
reduction in a Yield Period containing all or a portion of any
Run Off Period, Collections not so reinvested shall be treated
as if collected on the next following Run Off Day,
(C) the Transferor shall use reasonable efforts to
attempt to choose a reduction amount, and the date of
commencement thereof, so that such reduction shall commence
and conclude in the same Yield Period, and
(D) if two or more Undivided Interests of the
Purchaser or any Bank Investor shall be outstanding at the
time of any proposed reduction, such proposed reduction shall
be applied, unless the Agent shall consent otherwise, to the
Undivided Interest with the shortest remaining Yield Period.
(d) Allocations of Obligor's Payments. Except as provided
in Section 3.3(a) or as otherwise required by law or the underlying Contract,
all Collections received from an Obligor of any Receivable shall be applied to
Receivables then outstanding of such Obligor in the order of the age of such
Receivables, starting with the oldest such Receivable; provided, however, that,
if payment is designated by such Obligor for application to specific
Receivables, it shall be applied to such specified Receivables.
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(e) Deposit to Collection Account. Notwithstanding
anything herein to the contrary, the Agent may require the Transferor and
Servicer (or their designees or successors) at any time (such instruction shall
be deemed given upon the occurrence and continuance of a Termination Event), to
deposit all Collections of Pool Receivables received (including, without
limitation, received by any Lock-Box Bank) to an account established at the
Agent (the "Collection Account") within one Business Day of receipt thereof.
Such Collections shall be applied by the Agent in accordance with the provisions
of this Agreement, including Sections 3.1, 3.2 or 3.3 hereof. Servicer (or its
designee or successor) shall notify the Agent of the amount of funds deposited
in the Collection Account not received from Pool Receivables and the Agent shall
remit such funds as soon as practicable after such notification to such account
as Servicer (or its designee or successor) shall designate.
SECTION 3.4. Reporting. (a) On or prior to the twentieth day
of each month (or if such day is not a Business Day, the next succeeding
Business Day), Servicer shall prepare and forward to the Agent a Periodic Report
(including a certification that no Termination Event or Unmatured Termination
Event shall have occurred) relating to all Undivided Interests owned by the
Purchaser or the Bank Investors, as applicable, as of the close of business of
Servicer on the next preceding Month End Date.
(b) On or prior to each Settlement Date, the Transferor
will advise the Agent and, if Wackenhut is not the Servicer, the Servicer of
each Run Off Day occurring during the Settlement Period ending on such
Settlement Date.
(c) On or prior to each Purchase or Reinvestment
hereunder, the Transferor shall permanently ▇▇▇▇ in the computer records for
each Receivable subject to such Purchase or Reinvestment that such Receivable is
subject to the interest of the Agent, on behalf of the Purchaser or the Bank
Investors hereunder, as the case may be.
SECTION 3.5. Payments and Computations, Etc. (a) Unless
otherwise required pursuant to this Agreement, all amounts to be paid or
deposited by the Transferor hereunder shall be paid or deposited in accordance
with the terms hereof no later than noon (New York time) on the day when due in
lawful money of the United States of America in same day funds to accounts
indicated in writing by the Agent. If the Agent shall have received such funds
by noon (New York time), it shall forward the portion of the funds deposited
that are due to the Purchaser or the Bank
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Investors by 3:00 p.m. (New York time) on such day and if received after noon
(New York time), on the next following Business Day.
(b) The Transferor or Servicer, as applicable, shall,
to the extent permitted by law, pay to the Agent interest on all amounts not
paid or deposited when due hereunder at 2% per annum above the Alternate
Reference Rate, payable on demand; provided, however, that such interest rate
shall not at any time exceed the maximum rate permitted by applicable law. Such
interest shall be retained by the Agent except to the extent that such failure
to make a timely payment or deposit has continued beyond the date for
distribution by the Agent of such overdue amount to the Purchaser or the Bank
Investors, if any, or any other Person having an interest in such overdue
amount, in which case such interest accruing after such date shall be for the
account of, and distributed by the Agent, to such Persons ratably in accordance
with their respective interests in such overdue amount.
(c) All computations of interest, Earned Discount,
Negative Spread Fee and any other fees hereunder shall be made on the basis of a
year of 360 days for the actual number of days (including the first day but
excluding the last day) elapsed.
SECTION 3.6. Dividing or Combining Undivided Interests.
(a) Division of Undivided Interests. The Agent may at
any time, as of the last day of any Yield Period for any then existing Undivided
Interest owned by the Purchaser or any Bank Investor, as the case may be, divide
such existing Undivided Interest on such last day into two or more new Undivided
Interests, each such new Undivided Interest having a Purchaser's Investment as
designated by the Agent and all such new Undivided Interests collectively having
aggregate Purchaser's Investments equal to the Purchaser's Investment of such
existing Undivided Interest.
(b) Combination of Undivided Interests. The Agent may
at any time, as of the last day of any Yield Period for two or more existing
Undivided Interests owned by the Purchaser or the Bank Investors, as the case
may be, on or before the date of any proposed Purchase of an Undivided Interest
pursuant to Sections 1.1 and 1.4 by the Purchaser or the Bank Investors, as the
case may be, on such last day or such date of Purchase, as the case may be,
combine into one new Undivided Interest such existing and/or proposed Undivided
Interests or any combination thereof, such new Undivided Interest having a
Purchaser's Investment equal
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to the aggregate Purchaser's Investments of such Undivided Interests so
combined.
(c) Effect of Division or Combination. On and after any
division or combination of Undivided Interests as described above, each of the
new Undivided Interests resulting from such division, or the new Undivided
Interest resulting from such combination, as the case may be, shall be a
separate Undivided Interest having a Purchaser's Investment as set forth above,
and shall take the place of such existing Undivided Interest or Undivided
Interests or proposed Undivided Interest, as the case may be, in each case under
and for all purposes of this Agreement.
SECTION 3.7. Treatment of Collections and Deemed Collections.
The Transferor shall forthwith deliver to Servicer all Collections deemed
received by the Transferor pursuant to Section 3.3(a), and Servicer shall hold
or distribute such Collections as Earned Discount, accrued Servicer's Fee,
repayment of Purchaser's Investment, etc., to the same extent as if such
Collections had actually been received on the date of such delivery to Servicer.
If Collections are then being paid to the Agent, or lock boxes or accounts
directly or indirectly owned or controlled by the Agent, Servicer shall
forthwith cause such deemed Collections to be ratably paid to the Agent or to
such lock boxes or accounts, as applicable. So long as the Transferor shall hold
any Collections or deemed Collections required to be paid to Servicer or to the
Agent, it shall hold such Collections in trust and separate and apart from its
own funds and shall clearly ▇▇▇▇ its records to reflect such trust.
ARTICLE IV
FEES AND YIELD PROTECTION
SECTION 4.1. Fees. (a) Agent's Fees. Fees payable to the
Purchaser or the Agent for services performed in its capacity as Agent or as
Agent for the benefit of the Purchaser or the Bank Investors, as the case may
be, shall be due and payable on such dates and in such amounts as set forth in
the letter dated January 29, 1999 from the Transferor and The Wackenhut
Corporation to the Agent and the Purchaser (the "Fee Letter").
(b) Note Fee. From the date hereof until the date, on
or after the Commitment Termination Date, on which the Aggregate Total
Investments shall be reduced to zero, the Transferor shall pay to the Agent for
the account of the Purchaser, a note issu-
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ance fee ("Note Fee") in an amount equal to the product of (x) the greater of
$15, or the note fee actually paid or payable by the Purchaser to the issuing
agent and depositary for the Commercial Paper Notes for the authentication and
delivery of each Commercial Paper Note, as notified by the Agent on behalf of
the Purchaser to the Transferor and Servicer from time to time, times (y) the
number of Commercial Paper Notes issued by the Purchaser to fund its Undivided
Interests hereunder during the period for which such Note Fee is payable, as
notified by the Agent on behalf of the Purchaser to the Transferor and Servicer;
provided that, if such Commercial Paper Notes shall at any time become
"book-entry" Notes, the "Note Fee" therefor shall equal $30 per trade. Such Note
Fee shall be paid in arrears on the first Business Day of each month for the
preceding calendar month for the number of Commercial Paper Notes issued to fund
the Undivided Interests owned by the Purchaser during the preceding calendar
month for which no Note Fee shall have theretofore been paid. The Agent, on
behalf of the Purchaser, shall notify the Transferor and Servicer at least one
Business Day prior to the end of each calendar month of the number of Commercial
Paper Notes issued by the Purchaser to fund its Undivided Interests hereunder
during such calendar month.
(c) Dealer Fee. The dealer fee is set forth in the
Fee Letter.
SECTION 4.2. Yield Protection. (a) If (i) Regulation D or (ii)
any Regulatory Change occurring after the date hereof:
(A) shall subject an Affected Party to any tax, duty or
other charge with respect to any Undivided Interest owned by or funded
by it or any obligations or right to make Purchases or Reinvestments or
to provide funding therefor, or shall change the basis of taxation of
payments to the Affected Party of any Purchaser's Investments or Earned
Discount owned by, owed to or funded by it or any other amounts due
under this Agreement in respect of any Undivided Interest owned by or
funded by it or its obligations or rights, if any, to make Purchases or
Reinvestments or to provide funding therefor (except for changes in the
rate of tax on the overall net income of such Affected Party imposed by
the United States of America, by the jurisdiction in which such
Affected Party's principal executive office is located and, if such
Affected Party's principal executive office is not in the United States
of America, by the jurisdiction where such Affected Party's principal
office in the United States is located); or
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(B) shall impose, modify or deem applicable any reserve
(including, without limitation, any reserve imposed by the Federal
Reserve Board, but excluding any reserve included in the determination
of Earned Discount), special deposit or similar requirement against
assets of any Affected Party, deposits or obligations with or for the
account of any Affected Party or with or for the account of any
affiliate (or entity deemed by the Federal Reserve Board to be an
affiliate) of any Affected Party, or credit extended by any Affected
Party; or
(C) shall change the amount of capital maintained
or required or requested or directed to be maintained by any Affected
Party; or
(D) shall impose any other condition affecting any
Undivided Interest owned or funded by any Affected Party, or its
obligations or rights, if any, to make Purchases or Reinvestments or to
provide funding therefor; or
(E) shall impose on any Affected Party any other expense
(including attorneys' fees and litigation costs);
and the result of any of the foregoing is or would be:
(x) to increase the cost to (or in the case of Regulation
D referred to above, to impose a cost on) (I) an Affected Party funding
or making or maintaining any Purchases or Reinvestments, any purchases,
reinvestments, or loans or other extensions of credit under this
Agreement, the Enterprise Liquidity Agreement or Enterprise Credit
Support Agreement, as applicable or any commitment of such Affected
Party with respect to any of the foregoing, or (II) any Agent for
continuing its, or the Transferor's, or any Originator's relationship
with the Purchaser or any Bank Investor, as the case may be; or
(y) to reduce the amount of any sum received or
receivable by an Affected Party under this Agreement or the Certificate
of Assignments, or under the Enterprise Liquidity Agreement or the
Enterprise Credit Support Agreement with respect thereto; or
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(z) in the sole determination of such Affected Party, to
reduce the rate of return on the capital of an Affected Party as a
consequence of its obligations hereunder or arising in connection
herewith to a level below that which such Affected Party could
otherwise have achieved, then within thirty days after demand by such
Affected Party (which demand shall be accompanied by a statement
setting forth the basis of such demand), the Transferor shall pay
directly to such Affected Party such additional amount or amounts as
will compensate such Affected Party for such additional or increased
cost or such reduction; provided that, such demand shall be made only
with regard to amounts accruing not more than six months prior to the
earlier of (x) such demand being made upon the Transferor and (y)
notification of the Transferor pursuant to paragraph (b) below.
(b) Each Affected Party will promptly notify the Transferor
and the Agent of any event of which it has knowledge which will entitle such
Affected Party to compensation pursuant to this Section 4.2; provided, however,
no failure to give or delay in giving such notification shall adversely affect
the rights of any Affected Party to such compensation.
(c) In determining any amount provided for or referred to in this
Section 4.2, an Affected Party may use any reasonable averaging and attribution
methods that it (in its sole discretion) shall deem applicable. Any Affected
Party when making a claim under this Section 4.2 shall submit to the Transferor
a statement as to such increased cost or reduced return (including calculation
thereof in reasonable detail), which statement shall, in the absence of manifest
error, be conclusive and binding upon the Transferor.
ARTICLE V
CONDITIONS OF PURCHASES
SECTION 5.1. Conditions Precedent to Effectiveness of this
Agreement. The effectiveness of this Agreement is subject to the condition
precedent that the Agent shall have received, the following, each (unless
otherwise indicated) dated the date of such proposed effectiveness and in form
and substance satisfactory to the Agent:
(a) [Reserved];
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(b) A Good Standing Certificate for the Transferor and
Wackenhut issued by the Secretary of State or a similar official of the
Transferor's and Wackenhut's jurisdiction of incorporation and
certificates of qualification as a foreign corporation issued by the
Secretaries of State or other similar officials of each jurisdiction
when such qualification is material to the transactions contemplated by
this Agreement or the Amendment No. 1 to the Receivables Purchase
Agreement, in each case, dated a date reasonably prior to such date;
(c) A certificate of the Secretary or Assistant Secretary
of each of the Transferor and Wackenhut certifying the names and true
signatures of the officers authorized on its behalf to sign this
Agreement, Amendment No. 1 to the Receivables Purchase Agreement, and
the other documents to be delivered by them hereunder (on which
certificate the Agent, the Purchaser and each Bank Investor may
conclusively rely until such time as the Agent shall receive from the
Transferor or Wackenhut, as applicable, a revised certificate meeting
the requirements of this subsection (c));
(d) The Articles of Incorporation of each of the
Transferor and Wackenhut, duly certified by the Secretary of State or
similar official of the jurisdiction of its organization, as of a
recent date acceptable to each Agent, together with a copy of the
By-laws of each of the Transferor and Wackenhut, duly certified by the
Secretary or an Assistant Secretary of the Transferor and Wackenhut;
(e) A search report provided in writing to the Agent by
LEXIS Document Services (or its equivalent), listing all effective
financing statements that name the Transferor, the Seller or any
Originator as debtor and that are filed in the jurisdictions in which
UCC filings were made pursuant to the Original Agreement and in such
other jurisdictions that the Agent shall reasonably request, together
with copies of such financing statements (none of which shall cover any
Receivables or Contracts or interests therein or Collections or
proceeds of any thereof);
(f) A favorable opinion of associate General Counsel for
the Transferor and Wackenhut, in substantially the form of Schedule
5.1(h);
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(g) A favorable opinion of Akerman, Senterfitt & ▇▇▇▇▇▇,
P.A., covering certain bankruptcy and insolvency matters in form and
substance satisfactory to Purchaser's counsel;
(h) Such powers of attorney as are sufficient to enable
the Agent to collect all amounts due under any and all Pool Receivables
and to endorse and negotiate amounts delivered to the Lock Box, as
necessary;
(i) A Periodic Report as of the most recent Month End
Date;
(j) Evidence (i) of the execution and delivery by
Wackenhut and the Transferor of Amendment No. 1 to the Receivables
Purchase Agreement and (ii) that each of the conditions precedent to
the execution, delivery and effectiveness of the Receivables Purchase
Agreement has been satisfied;
(k) Evidence of the payment of all fees required to be
paid prior to closing.
SECTION 5.2. Conditions Precedent to All Purchases and
Reinvestments. Each Purchase (including the initial Purchase) and each
Reinvestment hereunder shall be subject to the further conditions precedent
("Conditions Precedent") that on the date of such Purchase or Reinvestment the
following statements shall be true (and the Transferor by accepting the amount
of such Purchase or by receiving the proceeds of such Reinvestment shall be
deemed to have certified that):
(a) the representations and warranties contained in
Section 6.1 and Section 6.2 and in the Purchase and Sale Agreement and
in the Receivables Purchase Agreement are correct in all material
respects on and as of such day as though made on and as of such day and
shall be deemed to have been made on such day except for those
representations and warranties made solely with respect to an earlier
date which shall be correct in all material respects as of such date;
(b) no event has occurred and is continuing, or would
result from such Purchase or Reinvestment, that constitutes a
Termination Event or Unmatured Termination Event;
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(c) after giving effect to each proposed Purchase or
Reinvestment, (i) Aggregate Purchaser's Investments will not exceed the
Purchase Limit, and (ii) Aggregate Required Allocations will not exceed
the Required Allocations Limit and (iii) the sum of the Aggregate
Purchaser's Investment plus the Interest Component of all outstanding
Related Commercial Paper would not exceed the Facility Limit; and
(d) the Commitment Termination Date shall not have
occurred;
provided, however, the absence of the occurrence and continuance of an Unmatured
Termination Event shall not be a Condition Precedent to any reinvestment being
made with the proceeds of Collections that were, on the same day, applied in
reduction of the Aggregate Total Investments.
SECTION 5.3. Additional Condition Precedent to Purchases. Each
Purchase (including the initial Purchase) shall be subject to the further
condition precedent that the Purchase Termination Date shall not have occurred.
SECTION 5.4. Condition Subsequent. Within thirty (30) days of
the date hereof, the Agent, the Purchaser, the Servicer and the Transferor will
execute lock box agreements and related documents with each of the Lock Box
Banks in form and substance reasonably satisfactory to the Agent and the
Purchaser. Failure to enter into such agreements shall result in the occurrence
of a Termination Event.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
SECTION 6.1. Representations and Warranties of the Transferor.
The Transferor represents and warrants as follows:
(a) Organization and Good Standing. The Transferor has
been duly organized and is validly existing as a corporation in good
standing under the laws of the State of Delaware, with power and
authority to own its properties and to conduct its business as such
properties are presently owned and such business is presently
conducted, and had at all relevant times, and now has, all necessary
power, authority, and legal right to acquire and own the Pool
Receivables.
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(b) Due Qualification. The Transferor is duly qualified
to do business as a foreign corporation in good standing, and has
obtained all necessary licenses and approvals, in all jurisdictions in
which the ownership or lease of property or the conduct of its business
requires such qualification, licenses or approvals.
(c) Power and Authority; Due Authorization. The
Transferor (i) has all necessary power, authority and legal right to
(A) execute and deliver this Agreement, the Certificate of Assignments
and other Agreement Documents to which it is a party, (B) carry out the
terms of the Agreement Documents, and (C) sell and assign undivided
Interest on the terms and conditions herein provided and (ii) has duly
authorized by all necessary corporate action the execution, delivery
and performance of this Agreement and the other Agreement Documents to
which it is a party and the sale and assignment of the Undivided
Interests on the terms and conditions herein provided.
(d) Valid Sale; Binding obligations. This Agreement
constitutes a valid sale, transfer, and assignment of Undivided
Interests to the Agent, on behalf of the Purchaser or the Bank
Investors, as the case may be, enforceable against creditors of, and
purchasers from, the Transferor; and this Agreement constitutes, and
each other Agreement Document to be signed by the Transferor when duly
executed and delivered will constitute, a legal, valid and binding
obligation of the Transferor enforceable in accordance with its terms,
except as enforceability may be limited by bankruptcy, insolvency,
reorganization, or other similar laws affecting the enforcement of
creditors, rights generally and by general principles of equity,
regardless of whether such enforceability is considered in a proceeding
in equity or at law.
(e) No Violation. The consummation of the transactions
contemplated by this Agreement and the other Agreement Documents and
the fulfillment of the terms hereof will not (i) conflict with, result
in any breach of any of the terms and provisions of, or constitute
(with or without notice or lapse of time or both) a default under, the
articles of incorporation or by-laws of the Transferor, or any
indenture, loan agreement, receivables purchase agreement, mortgage,
deed of
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trust, or other agreement or instrument to which the Transferor is a
party or by which it or any of its properties is bound, (ii) result in
the creation or imposition of any Adverse Claim upon any of the
Transferor's properties pursuant to the terms of any such indenture,
loan agreement, receivables purchase agreement, mortgage, deed of
trust, or other agreement or instrument, other than this Agreement and
the Certificate of Assignments, or (iii) violate any law or order,
rule, or regulation applicable to the Transferor of any court or of any
federal or state regulatory body, administrative agency, or other
governmental instrumentality having jurisdiction over the Transferor or
any of its properties.
(f) No Proceedings. There are no proceedings or
investigations pending, or to its knowledge threatened, before any
court, regulatory body, administrative agency, or other tribunal or
governmental instrumentality (i) asserting the invalidity of this
Agreement, the Certificate of Assignments or any other Agreement
Documents, (ii) seeking to prevent the sale and assignment of any
Undivided Interest, the issuance of the Certificate of Assignments or
the consummation of any of the other transactions contemplated by this
Agreement or any other Agreement Document, (iii) seeking any
determination or ruling that might materially and adversely affect (A)
the performance by the Transferor or Servicer of its obligations under
this Agreement, or (B) the validity or enforceability of this
Agreement, the Certificate of Assignments, any other Agreement
Document, the Receivables or the Contracts or (iv) seeking to adversely
affect the federal income tax attributes of the Purchases hereunder or
the Certificate of Assignments.
(g) Not an Investment Company. The Transferor is not, and
is not controlled by, an "investment company" within the meaning of the
Investment Company Act of 1940, as amended, or is exempt from all
provisions of such Act.
(h) Bulk Sales Act. No transaction contemplated hereby
requires compliance with any bulk sales act or similar law.
(i) Government Approvals. No authorization or approval or
other action by, and no notice to or filing with, any governmental
authority or regulatory body is
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required for the due execution, delivery and performance by the
Transferor of this Agreement, the Certificate of Assignments or any
other Agreement Document, except for the filing of the UCC Financing
Statements referred to in Article V, all of which, at the time required
in Article V, shall have been duly made and shall be in full force and
effect.
(j) Litigation. No injunction, decree or other decision
has been issued or made by any court, governmental agency or
instrumentality thereof that prevents, and to its knowledge no threat
by any person has been made to attempt to obtain any such decision that
would prevent, the Transferor from conducting a significant part of its
business operations, except as described in Schedule 6.1(j).
(k) Margin Regulations. The use of all funds obtained by
the Transferor under this Agreement will not conflict with or
contravene any of Regulations T, U and X promulgated by the Board of
Governors of the Federal Reserve System from time to time.
(l) Quality of Title. Each Pool Receivable, together with
the related Contract and all purchase orders and other agreements
related to such Pool Receivable, is owned by the Transferor free and
clear of any Adverse Claim (other than any Adverse Claim arising solely
as the result of any action taken by the Purchaser or any Bank
Investor, as the case may be (or any assignee thereof) or by the Agent)
and restriction on assignment, except as provided herein; when the
Purchaser or any Bank Investor, as the case may be, makes a Purchase,
it or they or the Agent shall have acquired and shall continue to have
maintained a valid and perfected first priority undivided percentage
ownership interest to the extent of its Undivided Interest in each Pool
Receivable and in the Related Security and Collections with respect
thereto, free and clear of any Adverse Claim (other than any Adverse
Claim arising solely as the result of any action taken by the Purchaser
or any Bank Investor (or any assignee thereof) or by the Agent) except
as provided hereunder; and no effective financing statement or other
instrument similar in effect covering any Pool Receivable, any interest
therein, the Related Security or Collections with respect thereto is on
file in any recording office except such as may be filed (i) in favor
of the Trans-
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feror in accordance with the Contracts, (ii) in favor of the Purchaser
or any Bank Investor or the Agent in accordance with this Agreement or
in connection with any Adverse Claim arising solely as the result of
any action taken by the Purchaser or any Bank Investor (or any assignee
thereof) or by the Agent; or (iii) in favor of Bank of America, or any
successor, as described in Section 11.1.
(m) Accurate Reports. No Periodic Report (if prepared by
the Transferor, or to the extent that information contained therein was
supplied by the Transferor), information, Exhibit, financial statement,
document, book, record or report furnished or to be furnished by the
Transferor to the Agent or the Purchaser or any Bank Investor in
connection with this Agreement was or will be inaccurate in any
material respect as of the date it was or will be dated or (except as
otherwise disclosed to the Agent, the Purchaser or any Bank Investor,
as the case may be, at such time) as of the date so furnished, or
contained or will contain any material misstatement of fact or omitted
or will omit to state a material fact or any fact necessary to make the
statements contained therein not materially misleading.
(n) Offices. The chief place of business and chief
executive office of the Transferor are located at the address of the
Transferor referred to on the signature page hereof, and the offices
where the Transferor keeps all of its books, records, and documents
evidencing Pool Receivables, the related Contracts and all purchase
orders and other agreements related to such Pool Receivables are
located at the addresses specified in Schedule 6.1(n) (or at such other
locations, notified to the Agents in accordance with Section 7.1(f), in
jurisdictions where all action required by Section 8.5 has been taken
and completed).
(o) Lock-Box Accounts. The names and addresses of all the
Lock-Box Banks, together with the account numbers of the lock-box
accounts of the Transferor or Servicer at such Lock-Box Banks, are
specified in Schedule 6.2(o) (or have been notified to the Agents in
accordance with Section 7.3(d)).
(p) Eligible Receivables. Each Receivable included in the
Net Pool Balance as an Eligible Receiv-
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able on the date of any Purchase or Reinvestment shall be an Eligible
Receivable on such date.
(q) Servicing Programs. Any and all programs used by the
Transferor or the Servicer in the servicing of the Receivables Pool are
owned by the Transferor or the Servicer, as applicable, and not leased
or licensed.
(r) Transfers. No purchase of an interest in Receivables
by the Purchaser or a Bank Investor from the Transferor or by the
Transferor from Wackenhut constitutes a fraudulent transfer or
fraudulent conveyance or is otherwise void or voidable under similar
laws or principles, the doctrine of equitable subordination or for any
other reason.
(s) Purchase and Sale Agreement. Each of the
representations and warranties made by each Originator in the Purchase
and Sale Agreement and by The Wackenhut Corporation in the Receivables
Purchase Agreement are true and correct in all material respects as of
the date or dates made.
(t) Solvency. Immediately after giving effect to the
Transferor's, the Seller's and the Originator's obligations now or
hereafter arising pursuant to any Agreement Document and to each
transaction contemplated thereby, the Transferor, the Seller and each
Originator will each be Solvent.
(u) Use of Proceeds. Neither the Transferor nor any
Originator will use the proceeds of the Purchases hereunder to acquire
a security in a transaction subject to Section 13 or 14 of the
Securities Exchange Act of 1934, as amended.
(v) Tax. The Transferor has filed each and every tax
return required to be filed by it in each jurisdiction in which it is
required to do so and has paid in each such jurisdiction all taxes
required to be paid by it on a consolidated basis.
(w) Tradenames, Etc. As of the date hereof: (A) the
Transferor's chief executive office is located at the address set forth
under its signature to this Agreement; and (B) the Transferor has,
within the last five (5) years, used only the tradenames identified in
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Schedule 6.1(w) hereto, and, within the last five (5) years, has not
changed its name, merged with or into or consolidated with any other
corporation or been the subject of any proceeding under ▇▇▇▇▇ ▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇▇ Code (Bankruptcy).
(x) No Termination Event. No event has occurred and is
continuing and no condition exists which constitutes a Termination
Event or an Unmatured Termination Event.
(y) ERISA. The Transferor is in compliance in all
material respects with ERISA and there exists no lien in favor of the
Pension Benefit Guaranty Corporation on any of the Receivables.
SECTION 6.2. Representations and Warranties of the
Servicer. The Servicer, represents and warrants to the Purchaser and to the Bank
Investors that:
(a) Organization and Good Standing. Servicer has been
duly organized and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its organization, with
power and authority to own its properties and to conduct its business
as such properties are presently owned and such business is presently
conducted, and had at all relevant times, and now has, all necessary
power, authority, and legal right to acquire, own and sell the Pool
Receivables.
(b) Due Qualification. Servicer is duly qualified to do
business as a foreign corporation in good standing, and has obtained
all necessary licenses and approvals, in all jurisdictions in which the
ownership or lease of property or the conduct of its business requires
such qualification, licenses or approvals.
(c) Power and Authority; Due Authorization. Servicer (i)
has all necessary power, authority and legal right to (A) execute and
deliver this Agreement, the Receivables Purchase Agreement and the
Purchase and Sale Agreement and other Agreement Documents, (B) carry
out the terms of the Agreement Documents to which it is a party, and
(C) sell and assign the Receivables to the Transferor pursuant to the
Receivables Purchase Agreement on the terms and conditions therein
provided and (ii) has duly authorized by all necessary corporate action
the execution, delivery and performance of this
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Agreement, the Receivables Purchase Agreement, the Purchase and Sale
Agreement and the other Agreement Documents to which it is a party and
the sale and assignment of the Receivables to the Transferor pursuant
to the Receivables Purchase Agreement on the terms and conditions
therein provided.
(d) Valid Sale; Binding Obligations. The Receivables
Purchase Agreement constitutes a valid sale, transfer, and assignment
of the Receivables to the Transferor, enforceable against creditors of,
and purchasers from, Wackenhut; and this Agreement constitutes, and
each other Agreement Document to be signed by Wackenhut (in whatever
capacity) when duly executed and delivered will constitute, a legal,
valid and binding obligation of Wackenhut enforceable in accordance
with its terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization, or other similar laws affecting the
enforcement of creditors, rights generally and by general principles of
equity, regardless of whether such enforceability is considered in a
proceeding in equity or at law.
(e) No Violation. The consummation of the transactions
contemplated by this Agreement and the other Agreement Documents and
the fulfillment of the terms hereof will not (i) conflict with, result
in any breach of any of the terms and provisions of, or constitute
(with or without notice or lapse of time or both) a default under, its
articles of incorporation or by-laws, or any indenture, loan agreement,
receivables purchase agreement, mortgage, deed of trust, or other
agreement or instrument to which it is a party or by which it or any of
its properties is bound, (ii) result in the creation or imposition of
any Adverse Claim upon any of its properties pursuant to the terms of
any such indenture, loan agreement, receivables purchase agreement,
mortgage, deed of trust, or other agreement or instrument, other than
the Receivables Purchase Agreement and this Agreement, or (iii) violate
any law or order, rule, or regulation applicable to it of any court or
of any federal or state regulatory body, administrative agency, or
other governmental instrumentality having jurisdiction over Wackenhut
or any of its properties.
(f) No Proceedings. There are no proceedings or
investigations pending, or to its knowledge threatened,
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before any court, regulatory body, administrative agency, or other
tribunal or governmental instrumentality (i) asserting the invalidity
of this Agreement, the Receivables Purchase Agreement, the Purchase and
Sale Agreement or any other Agreement Documents, (ii) seeking to
prevent the sale and assignment of the Receivables to the Transferor
pursuant to the Receivables Purchase Agreement or the consummation of
any of the other transactions contemplated by this Agreement or any
other Agreement Document, (iii) seeking any determination or ruling
that might materially and adversely affect (A) the performance by it
(in whatever capacity) of its obligations under this Agreement, the
Receivables Purchase Agreement or any other Agreement Document to which
it is a party, or (B) the validity or enforceability of this Agreement,
the Receivables Purchase Agreement, any other Agreement Document, the
Receivables or the Contracts or (iv) seeking to adversely affect the
federal income tax attributes of the Purchases hereunder or the
Certificate of Assignments.
(g) Government Approvals. No authorization or approval or
other action by, and no notice to or filing with, any governmental
authority or regulatory body is required for the due execution,
delivery and performance by Wackenhut of this Agreement, the
Receivables Purchase Agreement or any other Agreement Document, except
for the filing of the UCC Financing Statements referred to in Article
V, all of which, at the time required in Article V, shall have been
duly made and shall be in full force and effect.
(h) Financial Condition.
(i) The Servicer has heretofore furnished to the
Agent an audited consolidated balance sheet of the Servicer
and its consolidated subsidiaries as at January 2, 2000 and
the notes thereto and the related consolidated statements of
income, retained earnings and cash flows for the fiscal year
then ended as examined and certified by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, LLP,
and unaudited consolidated interim financial statements of the
Servicer and its consolidated subsidiaries consisting of a
consolidated balance sheet and related consolidated statements
of income, retained earnings and cash flows, in each case
without notes, for and as of the end of the nine month period
ending October 1, 2000. Except as set forth therein, such
financial statements
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(including the notes thereto) present fairly the financial
condition of the Servicer and its consolidated subsidiaries as
of the end of such fiscal year and nine month period and
results of their operations and the changes in its
stockholder's equity for the fiscal year and interim period
then ended, all in conformity with generally accepted
accounting principles consistently applied, subject however,
in the case of unaudited interim statements to year end audit
adjustments.
(ii) since the later of (A) the date of the
audited financial statements delivered pursuant to sub-
section (i) above hereof or (B) the date of the audited
financial statements most recently delivered pursuant to
Section 7.5(a) and (b) hereof, except as disclosed in
Servicer's press releases dated November 3, 2000 and November
30, 2000, there has not occurred any event, condition or
circumstance which has had or could reasonably be expected to
have a material adverse effect, nor have the businesses or
properties of the Servicer or any subsidiary been materially
adversely affected as a result of any fire, explosion,
earthquake, accident, strike, lockout, combination of workers,
flood, embargo or act of God; and
(iii) except as set forth in the financial
statements referred to in subsection (i) above, neither the
Servicer nor any subsidiary has incurred, other than in the
ordinary course of business, any material Indebtedness or
other commitment or liability which remains outstanding or
unsatisfied.
(i) Credit and Collection Policy. Since January 5, 1995,
there have been no material changes in the Credit and Collection Policy
other than as permitted hereunder. Since such date, no material adverse
change has occurred in the overall rate of collection of the
Receivables.
(j) Collections and Servicing. Since January 5, 1995,
there has been no material adverse change in the ability of the
Servicer to service and collect the Receivables.
(k) Not an Investment Company. The Servicer is not, and
is not controlled by, an "investment company" within the meaning of the
Investment Company Act of 1940, as amended, or is exempt from all
provisions of such Act.
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(l) Litigation. No injunction, decree or other decision
has been issued or made by any court, governmental agency or
instrumentality thereof that prevents, and to its knowledge no threat
by any person has been made to attempt to obtain any such decision that
would prevent, it from conducting a significant part of its business
operations, except as described in Schedule 6.2(j).
(m) Accurate Reports. No Periodic Report (if prepared by
it, or to the extent that information contained therein was supplied by
it), information, Exhibit, financial statement, document, book, record
or report furnished or to be furnished by it to the Agent or the
Purchaser or any Bank Investor in connection with this Agreement was or
will be inaccurate in any material respect as of the date it was or
will be dated or (except as otherwise disclosed to the Agent, the
Purchaser or any Bank Investor, as the case may be, at such time) as of
the date so furnished, or contained or will contain any material
misstatement of fact or omitted or will omit to state a material fact
or any fact necessary to make the statements contained therein not
materially misleading.
(n) Offices. The chief place of business and chief
executive office of the Servicer are located at its address referred to
on the signature page hereof, and the offices where the Servicer keeps
all of its books, records, and documents evidencing Pool Receivables,
the related Contracts and all purchase orders and other agreements
related to such Pool Receivables are located at the addresses specified
in Schedule 6.2(n) (or at such other locations, notified to the Agent
in accordance with Section 7.1(f), in jurisdictions where all action
required by Section 8.5 has been taken and completed).
(o) Lock-Box Accounts. The names and addresses of all the
Lock-Box Banks, together with the account numbers of the lock-box
accounts of the Servicer at such Lock-Box Banks, are specified in
Schedule 6.2(o) (or have been notified to the Agent in accordance with
Section 7.3(d)).
(p) Servicing Programs. Any and all programs used by the
Servicer in the servicing of the Receivables Pool are owned by it and
not leased or licensed.
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(q) No Termination Event. No event has occurred and is
continuing and no condition exists which constitutes a Termination
Event or an Unmatured Termination Event.
ARTICLE VII
GENERAL COVENANTS OF THE TRANSFEROR AND SERVICER
SECTION 7.1. Affirmative Covenants of the Transferor.
From the date hereof until the date, following the Commitment Termination Date,
on which all Undivided Interests shall be reduced to zero, the Transferor will,
unless the Agent shall otherwise consent in writing:
(a) Compliance with Laws, Etc. Comply in all material
respects with all applicable laws, rules, regulations and orders with
respect to the Pool Receivables and related Contracts.
(b) Preservation of Corporate Existence. Preserve and
maintain its corporate existence, rights, franchises and privileges in
the jurisdiction of its incorporation, and qualify and remain qualified
in good standing as a foreign corporation in each jurisdiction where
the failure to preserve and maintain such existence, rights,
franchises, privileges and qualification would materially adversely
affect (i) the interests of the Agent, the Purchaser or any Bank
Investor hereunder or (ii) the ability of the Transferor or Servicer to
perform their respective obligations hereunder.
(c) Field Reviews. (i) At any time and from time to time
during regular business hours, permit the Agent, or its agents or
representatives, (A) to examine and make copies of and abstracts from
all books, records and documents (including, without limitation,
computer tapes and disks) in the possession or under the control of the
Transferor relating to Pool Receivables, including, without limitation,
the related Contracts and purchase orders and other agreements, and (B)
to visit the offices and properties of the Transferor for the purpose
of examining such materials described in clause (i)(A) next above, and
to discuss matters relating to Pool Receivables or the Transferor's
performance hereunder with any of the officers or employees of the
Transferor having knowledge of such
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matters; and (ii) without limiting the provisions of clause (i)(A) next
above, from time to time on request of the Agent, permit Coopers &
▇▇▇▇▇▇▇ or other certified public accountants or other auditors
reasonably acceptable to the Agent to conduct, at the Transferor's
expense, a review of the Transferor's books and records with respect to
the Pool Receivables.
(d) Keeping of Records and Books of Account. Maintain and
implement administrative and operating procedures (including, without
limitation, an ability to recreate records evidencing Pool Receivables
in the event of the destruction of the originals thereof), and keep and
maintain, all documents, books, records and other information
reasonably necessary or advisable for the collection of all Pool
Receivables (including, without limitation, records adequate to permit
the daily identification of each new Pool Receivable and all
Collections of and adjustments to each existing Pool Receivable); such
records to be retained by Servicer for such periods as are usual and
customary and in accordance with the Credit and Collection Policy.
(e) Performance and Compliance with Receivables and
Contracts. At its expense timely and fully perform and comply with all
material provisions, covenants and other promises required to be
observed by it under the Contracts related to the Pool Receivables and
all purchase orders and other agreements related to such Pool
Receivables.
(f) Location of Records; Jurisdiction. Keep its chief
place of business and chief executive office, and the offices where it
keeps its records concerning the Pool Receivables, all related
Contracts and all purchase orders and other agreements related to such
Pool Receivables (and all original documents relating thereto), at the
addresses) of the Transferor referred to in Section 6.1(n) or, upon 30
days' prior written notice to each Agent, at such other locations in
jurisdictions where all action required by Section 8.5 shall have been
taken and completed. In addition, the Transferor shall provide not less
than thirty (30) days written notice to the Agent and the Bank
Investors prior to effecting any change in its jurisdiction of
organization.
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(g) Credit and Collection Policies. Comply in all
material respects with the Credit and Collection Policy in regard to
each Pool Receivable and the related Contract.
(h) Minimum Net Worth. The Transferor shall at all times
maintain a minimum Net Worth of 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
minimum Net Worth shall never be less than 15% of the Aggregate Unpaid
Balance of the Receivables.
(i) Collections. Instruct all Obligors to cause all
Collections of Pool Receivables to be deposited directly with a
Lock-Box Bank.
(j) Sale Treatment. The Transferor will not account for
(including for accounting and tax purposes), or otherwise treat, the
transactions contemplated by the Receivables Purchase Agreement in any
manner other than as a sale of Receivables by the Seller to the
Transferor. In addition, the Transferor shall disclose (in a footnote
or otherwise) in all of its financial statements (including any such
financial statements consolidated with any other Persons' financial
statements) the existence and nature of the Transaction contemplated
hereby and by the Receivables Purchase Agreement and the interest of
the Agent, on behalf of the Company and the Bank Investors, in the
Receivables.
(k) Separate Business. The Transferor shall at all times
(a) to the extent the Transferor's office is located in the offices of
Wackenhut or any Affiliate of Wackenhut, pay fair market rent for its
executive office space located in the offices of Wackenhut or any
Affiliate of Wackenhut, (b) have at all times at least two members of
its board of directors which are not and have never been employees,
officers or directors of Wackenhut or any Affiliate of Wackenhut or of
any major creditor of Wackenhut or any Affiliate of Wackenhut and are
persons who are familiar and have experience with asset securitization,
(c) maintain the Transferor's books, financial statements, accounting
records and other corporate documents and records separate from those
of Wackenhut or any other entity, (d) not commingle the Transferor's
assets with those of Wackenhut or any other entity, (e) not sell,
exchange or otherwise convey any of its assets in any inter-company
transactions except for fair
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market value in an arms length transaction approved by a majority of
its board of directors (including Independent Directors, as defined in
the Transferor's "Certificate of Incorporation"), (f) act solely in its
corporate name and through its own authorized officers and agents, (g)
make investments directly or by brokers engaged and paid by the
Transferor or its agents (provided that if any such agent is an
Affiliate of the Transferor it shall be compensated at a fair market
rate for its services), (h) separately manage the Transferor's
liabilities from those of Wackenhut or any Affiliates of Wackenhut and
pay its own liabilities, including all administrative expenses, from
its own separate assets, except that Wackenhut may pay the
organizational expenses of the Transferor, and (i) pay from the
Transferor's assets all obligations and indebtedness of any kind
incurred by the Transferor. The Transferor shall abide by all corporate
formalities, including the maintenance of current minute books, and the
Transferor shall cause its financial statements to be prepared in
accordance with generally accepted accounting principles in a manner
that indicates the separate existence of the Transferor and its assets
and liabilities. The Transferor shall (i) pay all its liabilities, (ii)
not assume the liabilities of Wackenhut or any Affiliate of Wackenhut,
(iii) not lend funds or extend credit to Wackenhut or any affiliate of
Wackenhut except pursuant to the Receivables Purchase Agreement in
connection with the purchase of Receivables thereunder and (iv) not
guarantee the liabilities of Wackenhut or any Affiliates of Wackenhut.
The officers and directors of the Transferor (as appropriate) shall
make decisions with respect to the business and daily operations of the
Transferor independent of and not dictated by any controlling entity.
The Transferor shall not engage in any business not permitted by its
Certificate of Incorporation as in effect on the Closing Date.
(l) Corporate Documents. The Transferor shall only amend,
alter, change or repeal Articles of its Certificate of Incorporation
with the prior written consent of the Agent.
(m) Rights under Receivables Purchase Agreement. Exercise
all of its rights under or in connection with the Receivables Purchase
Agreement to the fullest extent thereof except to the extent otherwise
consented to in writing by the Agent.
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SECTION 7.2. Reporting Requirements of the Transferor.
From the date hereof until the date, following the Commitment Termination Date,
on which all Undivided Interests shall be reduced to zero and all other amounts
owing hereunder shall have been paid, the Transferor will, unless the Agent
shall otherwise consent in writing, furnish to the Agent:
(a) Financial Reporting. The Transferor will maintain, or
cause to be maintained, a system of accounting established and
administered in accordance with GAAP, and furnish to the Agent:
(i) Quarterly Financial Statements. As soon as
available and in any event within 45 days after the end of
each of the first three quarters of each fiscal year of the
Transferor, copies of the Transferor's quarterly financial
reports, certified by the vice president and treasurer, chief
financial officer or chief accounting officer of the
Transferor; together with a certificate from such officer
certifying that no Termination Event or Unmatured Termination
Event has occurred and containing a computation of, and
showing compliance with, the financial restrictions contained
in Section 7;
(ii) Annual Reporting. Within ninety (90) days
after the close of the Transferor's fiscal year, financial
statements, prepared in accordance with GAAP for the
Transferor, including balance sheets as of the end of such
period, related statements of operations, shareholder's equity
and cash flows, and reviewed by a nationally recognized
accounting firm reasonably acceptable to the Agent and
accompanied by a certificate of said accountants that, in the
course of the foregoing, they have obtained no knowledge of
any Termination Event or Unmatured Termination Event, or if,
in the opinion of such accountants, any Termination Event or
Unmatured Termination Event shall exist, stating the nature
and status thereof.
(iii) Compliance Certificate. Within forty-five
(45) days after the close of the first three quarterly periods
of the Transferor's fiscal year and together with the
financial statements required hereunder, a compliance
certificate signed by the Transferor's chief financial officer
stating that to the best of such Person's knowledge, no
Termination Event or Unmatured Termination Event exists, or if
any Termination Event
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or Unmatured Termination Event exists, stating the nature and
status thereof.
(iv) Shareholders Statements and Reports.
Promptly upon the furnishing thereof to the shareholders of or
the Transferor, copies of all financial statements, reports
and proxy statements so furnished.
(b) Reports to Holders and Exchanges. In addition to the
reports required by subsection (a) next above, promptly upon the
Agent's request, copies of any reports specified in such request which
the Transferor sends to any of its security holders, and any reports or
registration statements that Servicer files with the Securities and
Exchange Commission or any national securities exchange other than
registration statements relating to employee benefit plans and to
registrations of securities for selling security holders;
(c) ERISA. Promptly after the filing or receiving
thereof, copies of all reports and notices with respect to any
Reportable Event defined in Article IV of ERISA which the Transferor,
the Seller or any Originator files under ERISA with the Internal
Revenue Service, the Pension Benefit Guaranty Corporation or the U.S.
Department of Labor or which the Transferor, the Seller or any
Originator receives from the Pension Benefit Guaranty Corporation;
(d) Termination Events. As soon as possible and in any
event within five days after the occurrence of each Termination Event
and each Unmatured Termination Event, written statement of the vice
president and treasurer, chief financial officer or chief accounting
officer of the Transferor setting forth details of such Event and the
action that the Transferor proposes to take with respect thereto;
(e) Litigation. As soon as possible and in any event
within three Business Days of the Transferor's knowledge thereof,
notice of (i) any litigation, investigation or proceeding which may
exist at any time which could have a material adverse effect on the
business, operations, property or financial condition of the
Transferor, the Seller or any Originator or impair the ability of the
Transferor or the Servicer to perform its obligations under this
Agreement and (ii) any material adverse development in previously
disclosed litigation;
(f) Purchase and Sale Agreement/Receivables Purchase
Agreement. Promptly after receipt thereof, copies of all
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documents and other information delivered by either of the Originator
or the Seller to the Transferor pursuant to either the Purchase and
Sale Agreement or the Receivables Purchase Agreement; and
(g) Other. Promptly, from time to time, such other
information (including a listing by Obligor of all Pool Receivables),
documents, records or reports respecting the Receivables or the
condition or operations, financial or otherwise, of the Transferor as
the Agent may from time to time reasonably request in order to protect
the interests of the Agent or any Purchaser under or as contemplated by
this Agreement.
SECTION 7.3. Negative Covenants of the Transferor. From
the date hereof until the date, following the Commitment Termination Date, on
which all Undivided Interests shall be reduced to zero and all other amounts
owing hereunder shall have been paid, the Transferor will not, without the prior
written consent of the Agent:
(a) Sales, Liens, Etc. Except as otherwise provided
herein, sell, assign (by operation of law or otherwise) or otherwise
dispose of, or create or suffer to exist any Adverse Claim upon or with
respect to, any Pool Receivable or related Contract or Related
Security, or any interest therein, or any lock-box account to which any
Collections of any Pool Receivable are sent, or any right to receive
income from or in respect of any of the foregoing.
(b) Extension or Amendment of Receivables. Except as
otherwise permitted in Section 8.2, extend, amend or otherwise modify
the terms of any Pool Receivable, or amend, modify or waive any term or
condition of any Contract related thereto unless such extension,
amendment or modification (i) does not conflict with the Credit and
Collection Policy and (ii) does not affect the collectibility of the
related Receivable.
(c) Change in Business or Credit and Collection Policy.
Make any change in the character of its business or in the Credit and
Collection Policy.
(d) Change in Payment Instructions to Obligors. Add or
terminate any bank as a Lock-Box Bank from those listed in Schedule
6.2(o) or make any change in its instructions to Obligors regarding
payments to be made to Servicer or Servicer or payments to be made to
any Lock-Box Bank, unless
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the Agent shall have received notice of such addition, termination or
change and duly executed copies of Lock-Box Agreements with each new
Lock-Box Bank in a form satisfactory to the Agent.
(e) Amendments to Purchase and Sale Agreement/Receivables
Purchase Agreement. Amend, supplement, waive the application of any
provision of, amend and restate or otherwise modify the Purchase and
Sale Agreement or the Receivables Purchase Agreement except in each
case (i) in accordance with the terms thereof and (ii) with the prior
written consent of the Agent.
(f) Corporate Identity. At any time change its name,
identity, corporate structure or location unless at least 10 days prior
thereto the Transferor shall have delivered to the Agent UCC financing
statements or other statements amending or otherwise modifying UCC
financing statements filed hereunder in order to maintain a first
perfected ownership interest in favor of the Agent on behalf of the
Purchaser and the Bank Investors hereunder.
SECTION 7.4. Affirmative Covenants of Servicer. From
the date hereof until the date, following the Commitment Termination Date, on
which all Undivided Interests shall be reduced to zero, Servicer will, unless
the Agent shall otherwise consent in writing:
(a) Compliance with Laws, Etc. Comply in all material
respects with all applicable laws, rules, regulations and orders with
respect to the Pool Receivables and related Contracts.
(b) Preservation of Corporate Existence. Preserve and
maintain its corporate existence, rights, franchises and privileges in
the jurisdiction of its incorporation, and qualify and remain qualified
in good standing as a foreign corporation in each jurisdiction where
the failure to preserve and maintain such existence, rights,
franchises, privileges and qualification would materially adversely
affect (i) the interests of the Agent or the Purchaser or any Bank
Investor hereunder or (ii) the ability of Servicer or the Transferor to
perform their respective obligations hereunder or under the Receivable
Purchase Agreement.
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(c) Field Reviews. (i) At any time and from time to time
during regular business hours, permit the Agent, or its agents or
representatives, (A) to examine and make copies of and abstracts from
all books, records and documents (including, without limitation,
computer tapes and disks) in the possession or under the control of
Servicer relating to Pool Receivables, including, without limitation,
the related Contracts and purchase orders and other agreements, and (B)
to visit the offices and properties of Servicer for the purpose of
examining such materials described in clause (i)(A) next above, and to
discuss matters relating to Pool Receivables or Servicer's performance
hereunder with any of the officers or employees of Servicer having
knowledge of such matters; and (ii) without limiting the provisions of
clause (i)(A) next above, from time to time on request of the Agent,
permit Coopers & ▇▇▇▇▇▇▇ or other certified public accountants or other
auditors acceptable to the Agent to conduct, at Servicer's expense, a
review of Servicer's books and records with respect to the Pool
Receivables.
(d) Keeping of Records and Books of Account. Maintain and
implement administrative and operating procedures (including, without
limitation, an ability to recreate records evidencing Pool Receivables
in the event of the destruction of the originals thereof), and keep and
maintain, all documents, books, records and other information
reasonably necessary or advisable for the collection of all Pool
Receivables (including, without limitation, records adequate to permit
the daily identification of each new Pool Receivable and all
Collections of and adjustments to each existing Pool Receivable); such
records to be retained by Servicer for such periods as are usual and
customary and in accordance with the Credit and Collection Policy.
(e) Performance and Compliance with Receivables and
Contracts. At its expense timely and fully perform and comply with all
material provisions, covenants and other promises required to be
observed by it under the Contracts related to the Pool Receivables and
all purchase orders and other agreements related to such Pool
Receivables.
(f) Location of Records. Keep its chief place of business
and chief executive office, and the offices
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where it keeps its records concerning the Pool Receivables, all related
Contracts and all purchase orders and other agreements related to such
Pool Receivables (and all original documents relating thereto), at the
addresses) of Servicer referred to in Section 6.2(n) or, upon 30 days'
prior written notice to each Agent, at such other locations in
jurisdictions where all action required by Section 8.5 shall have been
taken and completed. In addition, the Servicer shall provide not less
than thirty (30) days written notice to the Agent and the Bank
Investors prior to effecting any change in its jurisdiction of
organization.
(g) Credit and Collection Policies. Comply in all
material respects with the Credit and Collection Policy in regard to
each Pool Receivable and the related Contract.
(h) Collections. Instruct all Obligors to cause all
Collections of Pool Receivables to be deposited directly with a
Lock-Box Bank.
SECTION 7.5. Reporting Requirements of Servicer. From the
date hereof until the date, following the Commitment Termination Date, on which
all Undivided Interests shall be reduced to zero and all other amounts owing
hereunder shall have been paid, the Servicer will, unless the Agent shall
otherwise consent in writing, furnish to the Agent:
(a) Quarterly Financial Statements. As soon as available
and in any event within 45 days after the end of each of the first
three quarters of each fiscal year of the Servicer, copies of the
Servicer quarterly financial reports, on Form 10-Q, as filed with the
Securities and Exchange Commission (or if the Servicer is no longer
required to file such Form 10-Q, the Servicer shall furnish such
financial reports containing the information typically found on Form
10-Q, certified by the vice president and treasurer, chief financial
officer or chief accounting officer of the Servicer; together with a
certificate from such officer certifying that no Termination Event or
Unmatured Termination Event has occurred and containing a computation
of, and showing compliance with, the financial restrictions contained
in Section 7.6;
(b) Annual Financial Statements. As soon as available and
in any event within 90 days after the end of each fiscal year of the
Servicer, a copy of the Servicer's Annual Re-
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port, on Form 10-K, as filed with the Securities and Exchange
Commission (or if the Servicer is no longer required to file such Form
10-K, the Servicer shall furnish such financial reports containing
information typically found on Form 10-K) and as reported on by
nationally recognized independent certified public accountants on a
consolidated (for the Originator only) basis; together with a copy of
the year-end financial statements of each Originator (which need not be
reported by independent certified accountants); and together with a
certificate from vice president and treasurer, chief financial officer
or chief accounting officer of the Servicer certifying that no
Termination Event or Unmatured Termination Event has occurred and
containing a computation of, and showing compliance with, the financial
restrictions contained in Section 7.6;
(c) Reports to Holders and Exchanges. In addition to the
reports required by subsection (a) next above, promptly upon the
Agent's request, copies of any reports specified in such request which
the Servicer sends to any of its security holders, and any reports or
registration statements that the Servicer files with the Securities and
Exchange Commission or any national securities exchange other than
registration statements relating to employee benefit plans and to
registrations of securities for selling security holders;
(d) ERISA. Promptly after the filing or receiving
thereof, copies of all reports and notices with respect to any
Reportable Event defined in Article IV of ERISA which the Servicer or
any Originator files under ERISA with the Internal Revenue Service, the
Pension Benefit Guaranty Corporation or the U.S. Department of Labor or
which the Servicer or any Originator receives from the Pension Benefit
Guaranty Corporation;
(e) Termination Events. As soon as possible and in any
event within five days after the occurrence of each Termination Event
and each Unmatured Termination Event, written statement of the vice
president and treasurer, chief financial officer or chief accounting
officer of the Servicer setting forth details of such Event and the
action that the Servicer proposes to take with respect thereto;
(f) Litigation. As soon as possible and in any event
within three Business Days of the Servicer's knowledge thereof, notice
of (i) any litigation, investigation or proceeding which may exist at
any time which could have a material adverse effect on the business,
operations, prop-
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erty or financial condition of the Servicer or any Originator or impair
the ability of the Servicer to perform its obligations under this
Agreement and (ii) any material adverse development in previously
disclosed litigation; and
(g) Agreed Upon Procedures. On or before 120 days after
the end of each fiscal year of the Servicer, beginning with the fiscal
year ending December 31, 2000, the Servicer shall cause a firm of
independent public accountants (who may also render other services to
the Servicer or the Transferor) to furnish a report to the Agent to the
effect that they have (i) confirmed the Net Pool Balance as of the end
of each Yield Period during such fiscal year, (ii) confirmed that the
Receivables treated by the Servicer as Eligible Receivables in fact
satisfied the requirements of the definition thereof contained herein,
and (iii) such other matters as may be requested by the Agent in its
reasonable discretion; except, in each case for (a) such exceptions as
such firm shall believe to be immaterial (which exceptions need not be
enumerated) and (b) such other exceptions as shall be set forth in such
statement.
(h) Other. Promptly, from time to time, such other
information (including a listing by Obligor of all Pool Receivables),
documents, records or reports respecting the Receivables or the
condition or operations, financial or otherwise, of the Servicer as the
Agent may from time to time reasonably request in order to protect the
interests of such Agent or any Purchaser under or as contemplated by
this Agreement.
SECTION 7.6. Negative Covenants of the Servicer. From the
date hereof until the date, following the Commitment Termination Date, on which
all Undivided Interests shall be reduced to zero and all other amounts owing
hereunder shall have been paid, the Servicer will not, without the prior written
consent of the Agent:
(a) Sales, Liens, Etc. Except as otherwise provided
herein, sell, assign (by operation of law or otherwise) or otherwise
dispose of, or create or suffer to exist any Adverse Claim upon or with
respect to, any Pool Receivable or related Contract or Related
Security, or any interest therein, or any lock-box account to which any
Collections of any Pool Receivable are sent, or any right to receive
income from or in respect of any of the foregoing.
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(b) Extension or Amendment of Receivables. Except as
otherwise permitted in Section 8.2, extend, amend or otherwise modify
the terms of any Pool Receivable, or amend, modify or waive any term or
condition of any Contract related thereto unless such extension,
amendment or modification (i) does not conflict with the Credit and
Collection Policy and (ii) does not affect the collectibility of the
related Receivable.
(c) Change in Business or Credit and Collection Policy.
Make any change in the character of its business or in the Credit and
Collection Policy.
(d) Change in Payment Instructions to Obligors. Add or
terminate any bank as a Lock-Box Bank from those listed in Schedule
6.2(o) or make any change in its instructions to Obligors regarding
payments to be made to the Servicer or the Servicer or payments to be
made to any Lock-Box Bank, unless the Agent shall have received notice
of such addition, termination or change and duly executed copies of
Lock-Box Agreements with each new Lock-Box Bank in a form satisfactory
to the Agent.
(e) Mergers, Consolidations and Sales of Assets.
(i) Consolidate with or be a party to a merger
with any other corporation or sell, lease or otherwise dispose
of all or any substantial part (as defined in paragraph (iv)
of this Section 7.6(e)) of the assets of the Servicer and its
Subsidiaries, provided, however, that:
(A) any Subsidiary may merge or
consolidate with or into the Servicer or any Wholly-owned
Subsidiary so long as in any merger or consolidation involving
the Servicer, the Servicer shall be the surviving or
continuing corporation; provided further however, that under
no circumstances shall the Transferor be permitted to merge
with the Servicer;
(B) any Person may consolidate or merge
with the Servicer or a Subsidiary of the Servicer if at the
time of such consolidation or merger and after giving effect
thereto no Unmatured Termination Event or Termination Event
shall have occurred and be continuing, and after giving effect
to such consolidation or merger the Servicer would
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be permitted to incur at least $1.00 of additional
Consolidated Indebtedness;
(C) any Subsidiary may sell, lease or
otherwise dispose of all or any substantial part of its assets
to the Servicer or any Wholly-owned Subsidiary;
(D) WCC may enter into TROL Leases; and
(E) the Servicer may sell for not less
than book value the (i) business, assets and operations
constituting the food service business of the Servicer and its
Subsidiaries or (ii) assets of, or stock in, Chile.
(ii) Permit any Subsidiary to issue or
sell any shares of stock of any class (including as "stock"
for the purposes of this Section 7.6(e), any warrants, rights
or options to purchase or otherwise acquire stock or other
Securities exchangeable for or convertible into stock) of such
Subsidiary to any Person other than the Servicer or a
Wholly-owned Subsidiary, except for the purpose of qualifying
directors, or except in satisfaction of the validly
pre-existing preemptive rights of minority shareholders in
connection with the simultaneous issuance of stock to the
Servicer and/or a Subsidiary whereby the Servicer and/or such
Subsidiary maintain their same proportionate interest in such
Subsidiary.
(iii) Sell, transfer or otherwise dispose
of any shares of stock of any Subsidiary except (A) the
minimal amount necessary to qualify directors and (B) shares
of stock of WCC provided that, after giving effect to any such
sale of WCC stock, the Servicer shall own not less than 50% of
the stock of every class issued by WCC or any Indebtedness of
any Subsidiary, and will not permit any Subsidiary to sell,
transfer or otherwise dispose of (except to the Servicer or a
Wholly-owned Subsidiary) any shares of stock or any
Indebtedness of any other Subsidiary, unless:
(1) simultaneously with such
sale, transfer, or disposition, all shares of stock and all
Indebtedness of such Subsidiary at the time owned by the
Servicer and by every other Subsid-
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iary shall be sold, transferred or disposed of as an entirety;
(2) the Board of Directors of the
Servicer shall have determined, as evidenced by a resolution
thereof, that the purposed sale, transfer or disposition of
said shares of stock and Indebtedness is in the best interests
of the Servicer.
(3) said shares of stock and
Indebtedness are sold, transferred or otherwise disposed of to
a Person, for a cash consideration and on terms reasonably
deemed by the Board of Directors to be adequate and
satisfactory;
(4) the Subsidiary being disposed of
shall not have any continuing investment in the Servicer or
any other Subsidiary not being simultaneously disposed of; and
(5) such sale or other disposition does
not involve a substantial part (as hereinafter defined) of the
assets of the Servicer and its Subsidiaries.
(iv) As used in this Section 7.6(e), a sale,
lease or other disposition of assets shall be deemed to be a
"substantial part" of the assets of the Servicer and its
Subsidiaries only if the book value of such assets, when added
to the book value of all other assets sold, leased or
otherwise disposed of by the Servicer and its Subsidiaries
(other than in the ordinary course of business) during the
period from and after the Closing Date to and including the
date of the sale, lease or disposition in question, computed
on a cumulative basis for said entire period, exceeds 10% of
Consolidated Net Assets, determined as of the end of the
immediately preceding Fiscal Quarter.
(f) Acquisitions. Enter into any agreement, contract,
binding commitment or other arrangement providing for any Acquisition,
or take any action to solicit the tender of securities or proxies in
respect thereof in order to effect any Acquisition, unless (i) the
Person to be (or whose assets are to be) acquired does not oppose such
Acquisition and the line or lines of business of the Person to be
acquired are substantially the same as one or more line or
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lines of business conducted by the Servicer and its Subsidiaries, (ii)
no Unmatured Termination Event or Termination Event shall have occurred
and be continuing either immediately prior to or immediately after
giving effect to such Acquisition and, if the Cost of Acquisition is in
excess of $5,000,000, the Servicer shall have furnished to the Agent
and the Bank Investors (A) pro forma historical financial statements as
of the end of the most recently completed Fiscal Year of the Servicer
and most recent interim Fiscal Quarter, if applicable giving effect to
such Acquisition and (B) a certificate prepared on a historical pro
forma basis as of the most recent date for which financial statements
have been furnished pursuant to Section 7.5 giving effect to such
Acquisition, which certificate shall demonstrate that no Unmatured
Termination Event or Termination Event would exist immediately after
giving effect thereto, and (iii) the Person acquired shall be a
Wholly-owned Subsidiary, or be merged into the Servicer or a
Wholly-owned Subsidiary, immediately upon consummation of the
Acquisition (or if assets are being acquired, the acquiror shall be the
Servicer or a Wholly-owned Subsidiary).
(g) Corporate Identity. At any time change its name,
identity, corporate structure or location unless at least 10 days prior
thereto the Servicer shall have delivered to the Agent UCC financing
statements or other statements amending or otherwise modifying UCC
financing statements filed hereunder in order to maintain a first
perfected ownership interest in favor of the Transferor pursuant to the
Receivables Purchase Agreement.
(h) Source of Business. At any time permit more than 50%
of the Servicer's aggregate consolidated revenues to be derived from
businesses other than from the protective and/or correctional services
business.
SECTION 7.7. Financial Covenants of the Servicer.
(Additional terms used in this Section and not defined in Appendix A shall have
the meanings ascribed to such terms in the Revolving Credit Agreement).
(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 October
1, 2000 and (ii) as at the last day of each succeeding Fiscal Quarter of the
Servicer and until
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(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 but including earnings and losses
attributable to outstanding Minority Interest) for the Fiscal Quarter of the
Servicer ending on such day, 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, without giving effect to any Accounting
Adjustments.
(B) Limitations on Total Debt.
(i) The Servicer will not at any time permit the ratio of
Consolidated Indebtedness to Consolidated Total Capitalization to be
greater than .50 to 1.00.
(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 the Revolving Credit
Agreement, (vi) the endorsement of registrable instruments for deposit
or collection or similar transactions in the ordinary course of
business, and (vii) 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.
(C) Fixed Charge Coverage Ratio. The Servicer
will at all times keep and maintain at the end of any Four-Quarter Period the
Consolidated Fixed Charge Coverage Ratio to be less than 1.50 to 1.00.
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ARTICLE VIII
ADMINISTRATION AND COLLECTION
SECTION 8.1. Designation of Servicer. Wackenhut as Initial
Servicer. The servicing, administering and collection of the Pool Receivables
shall be conducted by the Person designated as Servicer hereunder ("Servicer")
from time to time in accordance with this Section 8.1. Until the Agent gives a
Successor Notice (as defined in Section 8.2, Wackenhut is hereby designated as,
and hereby agrees to perform the duties and obligations of, Servicer pursuant to
the terms hereof.
SECTION 8.2. Successor Notice: Servicer Transfer Event. Upon
Wackenhut's receipt of a notice from the Agent of the Agent's designation of a
new Servicer (a "Successor Notice"), Wackenhut agrees that it will terminate its
activities as Servicer hereunder in a manner that the Agent reasonably believes
will facilitate the transition of the performance of such activities to the new
Servicer, and the Agent (or its designee) shall assume, until a new Servicer is
appointed or designated, each and all of Wackenhut's said obligations to service
and administer such Receivables, on the terms and subject to the conditions
herein set forth, and Wackenhut shall use its best efforts to assist the Agent
(or its designee) in assuming such obligations. The Agent will not give
Wackenhut a Successor Notice until after the occurrence of any Termination Event
listed in any of clauses (a), (e), (f), (g), (h), (i), (1) or (k) of Section
10.1 or any event which, in the reasonable opinion of the Agent, could have a
material adverse effect on Wackenhut's ability to perform its obligations as
Servicer hereunder (any such Termination Event or other event being herein
called a "Servicer Transfer Event"), in which case such Successor Notice may be
given at any time in the Agent's discretion. If Wackenhut disputes the
occurrence of a Servicer Transfer Event, Wackenhut may take appropriate action
to resolve such dispute; provided that Wackenhut must terminate its activities
hereunder as Servicer and allow the newly designated Servicer to perform such
activities on the date provided by the Agent as described above, notwithstanding
the commencement or continuation of any proceeding to resolve the aforementioned
dispute. The Agent may at any time after the occurrence of a Servicer Transfer
Event designate any other Person as successor Servicer hereunder. If at any time
the Agent shall be servicing hereunder, upon the transfer of servicing by the
Agent to any successor Servicer, the Agent shall no longer perform the duties of
Servicer and shall have no further obligations or liabilities whatsoever in
respect thereof.
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SECTION 8.3. Subcontracts. Servicer may, with the prior
consent of the Agent, subcontract with any other person for servicing,
administering or collecting the Pool Receivables, provided that Servicer shall
remain liable for the performance of the duties and obligations of Servicer
pursuant to the terms hereof.
SECTION 8.4. Duties of Servicer. Appointment; Duties in
General. Each of the Transferor, Purchaser, each Bank Investor and the Agent
hereby appoints as its agent the Servicer, as from time to time designated
pursuant to Section 8.1, to enforce its rights and interests in and under the
Pool Receivables, the Related Security and the Contracts. Servicer shall take or
cause to be taken all such actions as may be necessary or advisable in
accordance with the Credit and Collection Policy or otherwise at the direction
or with the consent of the Agent to collect each Pool Receivable from time to
time, all in accordance with applicable laws, rules and regulations, with
reasonable care and diligence. Servicer shall adopt the Credit and Collection
Policy for the servicing of the Pool Receivables.
SECTION 8.5. Allocation of Collections; Segregation. Servicer
shall set aside for the account of the Transferor, the Purchaser and each Bank
Investor, their respective allocable shares of the Collections of Pool
Receivables in accordance with Sections 3.1 and 3.2 but shall not be required
(unless otherwise requested by the Agent, and subject to Section 3.7) to
segregate the funds constituting such portions of such Collections, or to
segregate the respective allocable shares of Enterprise and the Enterprise
Liquidity Provider and the Enterprise Credit Support Provider, as applicable,
prior to the remittance thereof in accordance with said Sections. If instructed
by the Agent, Servicer shall segregate and deposit with the Agent such allocable
shares of Collections of Pool Receivables, set aside for the Purchaser, the Bank
Investors, the Enterprise Liquidity Provider and Enterprise Credit Support
Provider and any other assignee from the Purchaser or any Bank Investor of any
Undivided Interest, on the first Business Day following receipt by Servicer of
such Collections in immediately available funds.
SECTION 8.6. Modification of Receivables. So long as no
Termination Event or Unmatured Termination Event shall have occurred and be
continuing, the Servicer, may, strictly in accordance with the Credit and
Collection Policy, (i) extend the maturity or adjust the Unpaid Balance of any
Defaulted Receivable as it may determine to be appropriate to maximize
Collections thereof; provided that, after giving effect to such extension of
maturity, the Aggregate Required Allocations will not exceed the
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Required Allocations Limit, and (ii) adjust the Unpaid Balance of any Receivable
to reflect the reductions or cancellations described in the first sentence of
Section 3.3(a).
SECTION 8.7. Documents and Records. The Transferor shall, and
shall cause the Seller, to deliver to Servicer, and Servicer shall hold in trust
for the Transferor, each Originator, the Purchaser and the Bank Investors, in
accordance with their respective interests, all documents, instruments and
records (including, without limitation, computer tapes or disks) that evidence
or relate to Pool Receivables.
SECTION 8.8. Certain Duties to the Transferor. Servicer shall,
as soon as practicable following receipt, turn over to the Transferor (i) that
portion of Collections of Pool Receivables representing its undivided interest
therein, less, all reasonable and appropriate out-of-pocket costs and expenses
of Servicer of servicing, collecting and administering the Pool Receivables to
the extent not covered by the Servicer's Fee received by it, and (ii) the
Collections of any Receivable which is not a Pool Receivable. Servicer, shall,
as soon as practicable upon demand, deliver to the Transferor all documents,
instruments and records in its possession that evidence or relate to Receivables
of the Transferor other than Pool Receivables, and copies of documents,
instruments and records in its possession that evidence or relate to Pool
Receivables.
SECTION 8.9. Lock-Box Accounts. Upon the occurrence of any
Lock-Box Control Event (as such term is defined in the Letter Agreement
(Segregation of Funds) dated as of December 30, 1997, as amended, between
Wackenhut and Bank of America), Servicer shall deliver to the Agent, in its
capacity as Lock-Box Segregation Agent thereunder, on a daily basis, a list,
referred to in such Letter Agreement as the Identification List, setting forth
those Collections held by Servicer and by each Lock-Box Bank and received as of
the preceding Business Day, and designating such Collections as Collections in
respect of Pool Receivables or as Collections not subject to this Agreement. The
Segregation Agent's duties shall be governed solely by the terms of such Letter
Agreement and no other duties or terms shall be implied therein.
SECTION 8.10. Rights of the Agent. (a) Notice to Obligors. At
any time the Agent, in its discretion, after notice to the Transferor or
Servicer, may notify the Obligors of Pool Receivables, or any of them, of the
ownership of Undivided Interests by the Purchaser or the Bank Investors, as the
case may be.
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(b) Notice to Lock-Box Banks. At any time following the
earliest to occur of (i) the occurrence of a Termination Event, (ii) any of the
Conditions Precedent shall not be satisfied and the Agent shall have requested
implementation of the Settlement procedures set forth in Section 3.2, and (iii)
the warranty in Section 6.1(l) shall no longer be true, the Agent is hereby
authorized to give notice to the Lock-Box Banks, as provided in the Lock-Box
Agreements, of the transfer to the Agent of dominion and control over the
lock-box accounts to which the Obligors of Pool Receivables make payments. The
Transferor hereby transfers to the Agent, effective when the Agent shall give
notice to the Lock-Box Banks as provided in the Lock-Box Agreements, the
exclusive dominion and control over such lock-box accounts, and shall take any
further action that the Agent may reasonably request to effect such transfer.
SECTION 8.11. Rights on Servicer Transfer Event. At any time
following the designation of a Servicer other than the Transferor pursuant to
Section 8.1:
(a) The Agent may direct the Obligors of Pool
Receivables, or any of them, to pay all amounts payable under any Pool
Receivable directly to the Agent or its designee.
(b) Servicer shall, and shall direct each Originator to,
at the Agent's request and at the Servicer's expense, give notice of
such ownership to each said Obligor and direct that payments be made
directly to the Agent or its designee.
(c) The Transferor shall, and shall direct each
Originator to, at the Agent's request (with the written consent of the
Agent), (A) assemble all of the documents, instruments and other
records (including, without limitation, computer programs, tapes and
disks) which evidence the Pool Receivables, and the related Contracts
and Related Security, or which are otherwise necessary or desirable to
collect such Pool Receivables, and shall make the same available to the
Agent at a place selected by the Agent or its designee, and (B)
segregate all cash, checks and other instruments received by it from
time to time constituting Collections of Pool Receivables in a manner
acceptable to the Agent and shall, promptly upon receipt, remit all
such cash, checks and instruments, duly endorsed or with duly executed
instruments of transfer, to the Agent or its designee.
(d) Each of the Transferor, the Purchaser and the Bank
Investors, as the case may be, hereby authorizes the Agent to take any
and all steps in the Transferor's name and
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on behalf of the Transferor and the Purchaser, the Bank Investors, as
the case may be, which are necessary or desirable, in the
determination of the Agent, to collect all amounts due under any and
all Pool Receivables, including, without limitation, endorsing the
Transferor's name on checks and other instruments representing
Collections and enforcing such Pool Receivables and the related
Contracts.
SECTION 8.12. Responsibilities of the Transferor. Anything
herein to the contrary notwithstanding:
(a) None of the Agent, the Purchaser nor any Bank
Investor shall have any obligation or liability with respect to any
Pool Receivables, Contracts related thereto or any other related
purchase orders or other agreements, nor shall any of them be obligated
to perform any of the obligations of the Transferor, Wackenhut or any
Originator thereunder.
(b) The Transferor hereby grants to the Servicer and the
Agent, for the benefit of the Purchaser and the Bank Investors, as the
case may be, an irrevocable power of attorney, with full power of
substitution, coupled with an interest, to take in the name of the
Transferor all steps which are necessary or advisable to endorse,
negotiate or otherwise realize on any writing or other right of any
kind held or transmitted by the Transferor or transmitted or received
by the Purchaser or any Bank Investor, as the case may be (whether or
not from the Transferor) in connection with any Receivable after the
occurrence of any default by the Transferor hereunder or the occurrence
of any Termination Event.
SECTION 8.13. Further Action Evidencing Purchases. (a) The
Transferor will, and will cause the Seller to, from time to time, at its
expense, promptly execute and deliver all further instruments and documents, and
take all further action that any Agent may reasonably request in order to
perfect, protect or more fully evidence the Purchases hereunder and the
resulting Undivided Interests, or to enable the Purchaser, the Bank Investors or
the Agent to exercise or enforce any of their respective rights hereunder or
under the Certificate of Assignments. Without limiting the generality of the
foregoing, the Transferor will upon the request of any Agent: execute and file
such financing or continuation statements, or amendments thereto or assignments
thereof, and such other instruments or notices, as may be necessary or
appropriate and will maintain such procedures as are necessary to permit daily
identification of Pool Receivables and Eligible Receivables.
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(b) The Transferor hereby authorizes the Agent to file
one or more financing or continuation statements on behalf of and for the
benefit of the Agent, the Purchaser or the Bank Investors, as the case may be,
and amendments thereto and assignments thereof, relative to all or any of the
Pool Receivables and the Related Security now existing or hereafter arising in
the name of the Transferor. If the Transferor fails to perform any of its
agreements or obligations under this Agreement, the Agent may (but shall not be
required to) itself perform, or cause performance of, such agreement or
obligation, and the expenses of the Agent incurred in connection therewith shall
be payable by the Transferor as provided in Section 13.1.
(c) Without limiting the generality of subsection (a),
the Transferor will, not earlier than six (6) months and not later than three
(3) months from the fifth anniversary of the date of filing of the financing
statements filed in connection with the Original Agreement or any other
financing statement filed pursuant to this Agreement or in connection with any
Purchase hereunder, unless the Commitment Termination Date shall have occurred
and all Undivided Interests shall have been reduced to zero:
(i) execute and deliver and file or cause to be
filed an appropriate continuation statement with respect to such
financing statement; and
(ii) deliver or cause to be delivered to the Agent an
opinion of the counsel for the Transferor (or other counsel for the
Transferor reasonably satisfactory to the Agent), in form and substance
reasonably satisfactory to the Agent, confirming and updating the
opinion delivered pursuant to Section 5.1(i) of the Original Agreement
with respect to UCC matters and otherwise to the effect that all of the
Undivided Interests hereunder continue to be first and prior perfected
security interests.
SECTION 8.14. Application of Collections. Any payment by an
Obligor in respect of any indebtedness owed by it to the Transferor shall,
except as otherwise specified by an Obligor or otherwise required by contract or
law and unless the Agent instructs otherwise, be applied as a Collection of any
Pool Receivable or Receivables of an Obligor to the extent of any amounts then
due and payable thereunder before such payment is applied to any other
indebtedness of an Obligor.
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ARTICLE IX
SECURITY INTEREST
SECTION 9.1. Grant of Security Interest. To secure all
obligations of the Transferor arising in connection with this Agreement, the
Certificate of Assignments and each other Agreement Document to which it is a
party, whether now or hereafter existing, due or to become due, direct or
indirect, or absolute or contingent, Indemnified Amounts, payments on account of
Collections received or deemed to be received, fees and Earned Discount, in each
case pro rata according to the respective amounts thereof, the Transferor hereby
assigns and grants the Agent, on behalf of the Purchaser and each Bank Investor,
a security interest in all of the Transferor's (i) right, title and interest
(including specifically any undivided interest retained by the Transferor
hereunder) now or hereafter existing in, to and under all the Pool Receivables,
the Related Security and all Collections with regard thereto and (ii) rights,
remedies, powers and privileges under and in respect of the Receivables Purchase
Agreement.
SECTION 9.2. Further Assurances. The provisions of Section
8.13 shall apply to the security interest granted under Section 9.1 as well as
to the Purchases and all Undivided Interests hereunder.
SECTION 9.3. Remedies. Upon the occurrence of a Termination
Event, the Agent shall have, with respect to the collateral granted pursuant to
Section 9.1, and in addition to all other rights and remedies available to the
Purchaser, the Bank Investors, or the Agent under this Agreement or other
applicable law, all the rights and remedies of a secured party upon default
under the UCC.
ARTICLE X
[RESERVED]
ARTICLE XI
TERMINATION
SECTION 11.1. Termination Events. If any of the following
events ("Termination Events") shall occur:
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(a) Servicer (if Wackenhut) shall fail to perform or
observe any term, covenant or agreement hereunder (other than as referred to in
clause (ii) next following) and such failure shall remain unremedied for five
Business Days or (ii) Servicer (if Wackenhut) or the Transferor (if not
Servicer) shall fail to make any payment or deposit to be made by it hereunder
when due; or
(b) Any representation or warranty made or deemed to be
made by the Transferor, Servicer or any Originator (or any of their respective
officers) under or in connection with this Agreement, any other Agreement
Document, or any Periodic Report or other information or report delivered
pursuant hereto shall prove to have been false or incorrect in any material
respect when made and, if such condition shall be amenable to remedy, such
condition shall continue unremedied for a period of ten Business Days after (i)
written notice thereof by the Agent or (ii) the Transferor, Servicer or such
Originator has actual knowledge thereof; or
(c) The Transferor, Servicer, Wackenhut or any Originator
shall fail to perform or observe any other term, covenant or agreement contained
in this Agreement or any other Agreement Document, on their respective parts to
be performed or observed and any such failure shall remain unremedied for five
Business Days after the date on which the Transferor, Servicer, Wackenhut or
such Originator knew or should have known of such failure; or
(d) A default shall have occurred and be continuing under
any instrument or agreement evidencing, securing or providing for the issuance
of indebtedness for borrowed money in excess of $100,000 of, or guaranteed by,
the Transferor, Servicer, Wackenhut, any Originator or of any Affiliate of
either thereof, which default if unremedied, uncured, or unwaived (with or
without the passage of time or the giving of notice or both) would permit
acceleration of the maturity of such indebtedness and such default shall have
continued unremedied, uncured or unwaived for a period long enough to permit
such acceleration and any notice of default required to permit acceleration
shall have been given; or any default under any agreement or instrument relating
to the purchase of receivables of the Transferor, Wackenhut, any Originator or
of any Affiliate of either thereof, or any other event, shall occur and shall
continue after the applicable grace period, if any, specified in such agreement
or instrument, if the effect of such default is to terminate, or permit the
termination of, the commitment of any party to such agreement or instrument to
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purchase receivables or the right of the Transferor to reinvest in receivables
the principal amount paid by any party to such agreement or instrument for
interest in receivables; or
(e) An Event of Bankruptcy shall have occurred and
remained continuing with respect to the Transferor, Servicer, Wackenhut any
Originator or any Affiliate of any thereof; or
(f) Any litigation (including, without limitation,
derivative actions), arbitration proceedings or governmental proceedings not
disclosed in writing by the Transferor to the Agent, prior to the date of
execution and delivery of this Agreement is pending against the Transferor,
Servicer, Wackenhut, any Originator or any Affiliate of any thereof, or (ii) any
material development not so disclosed has occurred in any litigation (including,
without limitation, derivative actions), arbitration proceedings or governmental
proceedings so disclosed, which, in the case of clause (i) or (ii), in the
opinion of the Agent, is likely to materially adversely affect the financial
position or business of the Transferor, Servicer, any Originator or any
Affiliate of any thereof or impair the ability of the Transferor or Servicer to
perform its obligations under this Agreement; or
(g) After any Settlement Date, the Aggregate Required
Allocations shall exceed the Required Allocations Limit; or
(h) The Losses to Liquidations Ratio exceeds 2%; or
(i) Three-Month Default Ratio at any time exceeds 6%; or
(j) Three-Month Dilution Ratio at any time exceeds 2.5%;
or
(k) There shall have occurred any event which materially
adversely affects the collectibility of the Pool Receivables or there shall have
occurred any other event which materially adversely affects the ability of the
Transferor, any Originator or Servicer to collect Pool Receivables or the
ability of the Transferor or Servicer to perform hereunder or the warranty in
Section 6.1(n) shall not be true at any time; or
(l) The Internal Revenue Service shall file notice of a
lien pursuant to Section 6323 of the Internal Revenue
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Code with regard to any of the assets of the Transferor, Servicer,
the Seller, any Originator or any Affiliate and such lien shall not
have been released within 30 days, or the Pension Benefit Guaranty
Corporation shall, or shall indicate its intention to, file notice
of a lien pursuant to Section 4068 of the Employee Retirement Income
Security Act of 1974 with regard to any of the assets of the
Transferor, Servicer, the Seller or any Originator; or
(m) A Purchase and Sale Termination Event shall have
occurred; or
(n) The Wackenhut Family shall at any time, directly or
indirectly, control less than 33 1/3% of the voting securities of
the Transferor, the Seller, Servicer or any Originator; or
(o) The Agent on behalf of the Purchaser and the Bank
Investors, fail for any reason to have a perfected first priority
security interest as described in Section 9.1; or
(p) The Aggregate Required Allocations shall at any time
exceed the Required Allocations Limit.
SECTION 11.2. Remedies. (a) Optional Termination. Upon the
occurrence of a Termination Event (other than a Termination Event described in
subsection (a), (e), (f), or (p) of Section 11.1), the Agent may, or at the
request of the Bank Investors, shall, by notice to the Transferor and the
Purchaser declare the Purchase Termination Date to have occurred.
(b) Automatic Termination. Upon the occurrence of a
Termination Event described in subsection (a), (e), (f) or (p) of Section 11.1,
the Purchase Termination Date shall be deemed to have occurred automatically
upon the occurrence of such event; provided, however, that with respect to any
proceeding instituted against the Transferor pursuant to 11 U.S.C. ss.303 (an
"Involuntary Federal Proceeding"), the settlement procedures described in
Section 3.2 shall become applicable upon the commencement of such Proceeding and
no further Purchases or Reinvestments of Collections shall be made; and
provided, further, that if such Involuntary Federal Proceeding is dismissed
within 60 days after its commencement, and if no other Termination Event has
occurred, then following such dismissal, the Commitment shall be reinstated as
if the Purchase Termination Date had not occurred upon the commencement of such
Involuntary Federal Proceeding.
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(c) Termination Events. The Agent shall not be deemed to
have knowledge or notice of the occurrence of an Unmatured Termination Event or
a Termination Event unless the Agent has received written notice from the
Transferor specifying such Unmatured Termination Event or Termination Event and
stating that such notice is a 'Notice of Termination Event'. In the event that
the Agent receives such a notice of the occurrence of an Unmatured Termination
Event or Termination Event, the Agent shall give prompt notice thereof to the
Purchaser and the Bank Investors. The Agent shall (subject to Section 12.2
hereof) take such action with respect to such Unmatured Termination Event or
Termination Event as shall reasonably be directed by the Purchaser and the Bank
Investors, provided that, unless and until the Agent shall have received such
directions, the Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Unmatured Termination
Event or Termination Event as it shall deem advisable in the best interest of
the Purchaser and the Bank Investors.
(d) Additional Remedies. Upon any termination of the
Facility pursuant to this Section 11.2, the Agent, the Purchaser and the Bank
Investors shall have, in addition to all other rights and remedies under this
Agreement or otherwise, all other rights and remedies provided under the UCC of
each applicable jurisdiction and other applicable laws, which rights shall be
cumulative. Without limiting the foregoing or the general applicability of
Article XIII hereof, the occurrence of a Termination Event shall not deny to the
Agent, the Purchaser or any Bank Investor any remedy in addition to termination
of the Commitment to which the Agent, the Purchaser or any Bank Investor may be
otherwise appropriately entitled, whether at law or in equity.
ARTICLE XII
THE AGENT
SECTION 12.1. Authorization and Action. The Purchaser and each
Bank Investor hereby appoints and authorizes the Agent to take such action as
agent on its behalf and to exercise such powers under this Agreement as are
delegated to such Agent by the terms hereof, together with ,such powers as are
reasonably incidental thereto. The provisions of this Article XII are solely for
the benefit of the Agent, the Purchaser and the Bank Investors, and the
Transferor shall not have any rights as a third-party beneficiary or otherwise
under any of the provisions hereof. In performing its functions and duties
hereunder, the Agent shall act solely as the agent for the Purchaser and the
Bank Investors, as the case may be,
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and does not assume nor shall be deemed to have assumed any obligation or
relationship of trust or agency with or for the Transferor or any Originator or
any of their respective successors and assigns. The Agent (which term as used in
this sentence shall include its affiliates and its own and its affiliates'
officers, directors, employees and agents): (a) shall not have any duties or
responsibilities except those expressly set forth in this Agreement and shall
not be a trustee or fiduciary for the Purchaser or any other Bank Investor; (b)
shall not be responsible to the Purchaser or any Bank Investor for any recital,
statement, representation, or warranty (whether written or oral) made in, or in
connection with, any Agreement Documents or any certificate or other document
referred to or provided for in, or received by any of them under any Agreement
Document, or for the value, validity, effectiveness, genuineness,
enforceability, or sufficiency of any Agreement Document, or any other document
referred to or provided for herein or for any failure by any of the Transferor,
or any other Person to perform any of its obligations thereunder; (c) shall not
be responsible for or have any duty to ascertain, inquire into, or verify the
performance or observance of any covenants or agreements by the Transferor or
the satisfaction of any condition or to inspect the property (including the
books and records) of the Transferor or any of its Subsidiaries or affiliates;
(d) shall not be required to initiate or conduct any litigation or collection
proceedings under any Agreement Document; and (e) shall not be responsible for
any action taken or omitted to be taken by it under or in connection with any
Agreement Document, except for its own gross negligence or willful misconduct.
The Agent may employ agents and attorneys-in-fact and shall not be responsible
for the negligence or misconduct of any such agents or attorneys-in-fact
selected by it with reasonable care.
SECTION 12.2. Agents' Reliance, Etc. The Agent shall be
entitled to rely upon any certification, notice, instrument, writing, or other
communication (including, without limitation, any thereof by telephone or
telecopy) believed by it to be genuine and correct and to have been signed, sent
or made by or on behalf of the proper Person or Persons, and upon advice and
statements of legal counsel (including counsel for any of the Transferor or the
Servicer), independent accountants, and other experts selected by the Agent. As
to any matters not expressly provided for by this Agreement, the Agent shall not
be required to exercise any discretion or take any action, but shall be required
to act or to refrain from acting (and shall be fully protected in so acting or
refraining from acting) upon the instructions of the Bank Investors, and such
instructions shall be binding on all of the Bank Investors; provided, however,
that the Agent shall not be required to take any action that exposes the Agent
to personal liability or
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that is contrary to any Agreement Document or applicable law or unless it shall
first be indemnified to its satisfaction by the Bank Investors against any and
all liability and expense which may be incurred by it by reason of taking any
such action.
SECTION 12.3. Agents and Affiliates. Bank of America and its
Affiliates may generally engage in any kind of business with the Transferor,
Servicer, any Originator or any Obligor, any of their respective Affiliates and
any Person who may do business with or own securities of the Transferor or any
Obligor or any of their respective Affiliates, all as if Bank of America was not
the Agent and without any duty to account therefor to the Purchaser, any Bank
Investor or any other holder of an interest in Pool Receivables.
SECTION 12.4. Resignation of Agent. The Agent may resign at
any time by giving notice thereof to the Purchaser, the Bank Investors and the
Transferor. Upon any such resignation, the Agent and the Bank Investors which
hold 50% or more by aggregate principal balance of the Facility Limit shall have
the right to appoint a successor Agent. If no successor Agent shall have been so
appointed by the Agent or the Bank Investors which hold 50% or more by aggregate
principal balance of the Facility Limit and shall have accepted such appointment
within thirty (30) days after the retiring Agent's giving of notice of
resignation, then the retiring Agent may, on behalf of the Purchaser and the
Bank Investors, appoint a successor Agent which shall be a commercial bank
organized under the laws of the United States of America having combined capital
and surplus of at least $100,000,000. Upon the acceptance of any appointment as
Agent hereunder by a successor, such successor shall thereupon succeed to and
become vested with all the rights, powers, discretion, privileges, and duties of
the retiring Agent, and the retiring Agent shall be discharged from its duties
and obligations hereunder. After any retiring Agent's resignation hereunder as
Agent, the provisions of this Article XII shall continue in effect for its
benefit in respect of any actions taken or omitted to be taken by it while it
was acting as Agent.
ARTICLE XIII
BANK COMMITMENT; ASSIGNMENT OF PURCHASER'S INTEREST
SECTION 13.1. Rights as Bank Investor. With respect to its
Bank Commitment, Bank of America (and any successor acting as Agent) in its
capacity as a Bank Investor hereunder shall have the same rights and powers
hereunder as any other Bank Investor and may
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exercise the same as though it were not acting as the Agent, and the term "Bank
Investor" or "Bank Investors" shall, unless the context otherwise indicates,
include the Agent in its individual capacity. Bank of America (and any successor
acting as Agent) and its affiliates may (without having to account therefor to
the Purchaser or any Bank Investor) accept deposits from, lend money to, make
investments in, provide services to, and generally engage in any kind of
lending, trust, or other business with any of the Transferor and the Agent or
any of their Subsidiaries or affiliates as if it were not acting as Agent, and
Bank of America (and any successor acting as Agent) and its affiliates may
accept fees and other consideration from any of the Transferor and its
affiliates and the Agent or any of their Subsidiaries or affiliates for services
in connection with this Agreement or otherwise without having to account for the
same to the Purchaser or any Bank Investor.
SECTION 13.2. Indemnification of the Agent. The Bank Investors
agree to indemnify the Agent (to the extent not reimbursed by the Transferor),
ratably in accordance with their Pro Rata portions of the Undivided Interests,
from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses (including attorneys'
fees), or disbursements of any kind or nature whatsoever which may be imposed
on, incurred by, or asserted against the Agent (including by the Purchaser or
any Bank Investor) in any way relating to or arising out of this Agreement or
any other Agreement Document or any of the transactions contemplated hereby or
thereby or any action taken or omitted by the Agent under this Agreement or any
other Agreement Document, provided that no Bank Investors shall be liable for
any of the foregoing to the extent they arise from the gross negligence or
willful misconduct of the Person indemnified. Without limitation of the
foregoing, the Bank Investors agree to reimburse the Agent, ratably in
accordance with their Pro Rata portions of the Undivided Interests promptly upon
demand for any out-of-pocket expenses (including attorneys' fees) incurred by
the Agent in connection with the administration, modification, amendment or
enforcement (whether through negotiations, legal proceedings or otherwise) of,
or legal advice in respect of rights or responsibilities under, this Agreement
and the other Agreement Documents, to the extent that such expenses are incurred
in the interests of or otherwise in respect of the Bank Investors hereunder
and/or thereunder and to the extent that the Agent is not reimbursed for such
expenses by the Transferor. The agreements contained in this Section 13.2 shall
survive payment in full of the Undivided Interests and all other amounts payable
under this Agreement.
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SECTION 13.3. Non-Reliance. The Purchaser and each Bank
Investor agrees that it has, independently and without reliance on the Agent or
the Purchaser or any Bank Investor, and based on such documents and information
as it has deemed appropriate, made its own credit analysis of the Transferor and
the Agent and their Subsidiaries and decision to enter into this Agreement and
that it will, independently and without reliance upon the Agent, the Purchaser
or any Bank Investor, and based on such documents and information as it shall
deem appropriate at the time, continue to make its own analysis and decisions in
taking or not taking action under the Agreement Documents. Except for notices,
reports, and other documents and information expressly required to be furnished
to the Purchaser and the Bank Investors by the Agent hereunder, the Agent shall
not have any duty or responsibility to provide any Lender with any credit or
other information concerning the affairs, financial condition, or business of
the Transferor or the Agent or any of their Subsidiaries or affiliates that may
come into the possession of the Agent or any of its affiliates.
SECTION 13.4. Payments by the Agent. Unless specifically
allocated to a Bank Investor pursuant to the terms of this Agreement, all
amounts received by the Agent on behalf of the Bank Investors shall be paid by
the Agent to the Bank Investors (at their respective accounts specified in their
respective Assignment and Assumption Agreements) in accordance with their
respective related pro rata interests in the Undivided Interest, on the Business
Day received by the Agent, unless such amounts are received after 12:00 noon on
such Business Day, in which case the Agent shall use its reasonable efforts to
pay such amounts to the Bank Investors on such Business Day, but, in any event,
shall pay such amounts to the Bank Investors in accordance with their respective
related pro rata interests in the Undivided Interest, not later than the
following Business Day.
SECTION 13.5. Bank Commitment; Assignment to Bank Investors.
(a) Bank Commitment. At any time on or prior to the
Commitment Termination Date, in the event that the Purchaser does not effect a
Purchase as requested under Section 2.1 then at any time, the Transferor shall
have the right to require the Purchaser to assign its interest in the Aggregate
Purchaser's Investment in whole to the Bank Investors pursuant to this Section
13.5. In addition, if at any time on or prior to the Commitment Termination Date
the Purchaser elects to give notice to the Transferor of a Reinvestment
Termination Date, the Transferor hereby requests and directs that the Purchaser
assign its interest in the Aggregate Purchaser's Investment in whole to the Bank
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Investors pursuant to this Section 13.5 and the Transferor hereby agrees to pay
the amounts described in Section 13.6(d) below. Upon any such election by the
Purchaser or any such request by the Transferor, the Purchaser shall make such
assignment to the Bank Investors and the Bank Investors shall thereupon be
deemed to have accepted such assignment and shall assume all of the Purchaser's
obligations hereunder. In connection with any assignment from the Purchaser to
the Bank Investors pursuant to this Section 13.5, each Bank Investor shall, by
the close of business (New York time) on the date of such notice of assignment,
pay to the Purchaser (in immediately available funds) an amount equal to its
Assignment Amount (it being understood that notwithstanding the foregoing
assignment of the Aggregate Purchasers Investment, the Bank Investors, as
assignees, continue to be obligated to fund Advances under Section 1.3 in
accordance with the terms thereof and shall not have the right to elect the
commencement of the amortization of the Purchasers Investment pursuant to the
definition of "Reinvestment Termination Date" notwithstanding that the
Purchaser had such right). Upon any such assignment, the amount set forth on the
signature pages hereto next to each bank Investor's name shall be deemed to be
the final Commitment amount with respect to such Bank Investor. Upon any
assignment by the Purchaser to the Bank Investors contemplated hereunder, the
Purchaser shall cease to make any additional Purchases hereunder.
(b) Assignment. No Bank Investor may assign all or a
portion of its interest in the Purchaser's Investment, the Receivables, and
Collections, Related Security and Proceeds with respect thereto and its rights
and obligations hereunder to any Person unless approved in writing by the
Transferor, the Purchaser and the Agent. In the case of an assignment by a Bank
Investor to another Person, the assignor shall deliver to the assignee(s) an
Assignment and Assumption Agreement in substantially the form of Schedule
13.5(b) attached hereto, duly executed, assigning to the assignee a pro rata
interest in the Purchaser's Investment, the Receivables, and Collections,
Related Security and Proceeds with respect thereto and the assignor's rights and
obligations hereunder and the assignor shall promptly execute and deliver all
further instruments and documents, and take all further action, that the
assignee may reasonably request, in order to protect, or more fully evidence the
assignee's right, title and interest in and to such interest and to enable the
Agent, on behalf of such assignee, to exercise or enforce any rights hereunder
and under the other Agreement Documents to which such assignor is or,
immediately prior to such assignment, was a party. Upon any such assignment, (i)
the assignee shall have all of the rights and obligations of the assignor
hereunder and under the other Agreement Documents to which such assignor is or,
immediately prior to such assignment, was a
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party with respect to such interest for all purposes of this Agreement and under
the other Agreement Documents to which such assignor is or, immediately prior to
such assignment, was a party (it being understood that the Bank Investors, as
assignees, shall (x) be obligated to fund Purchases under Section 1.3(c) in
accordance with the terms thereof, notwithstanding that the Purchaser was not so
obligated and (y) not have the right to elect the commencement of the
amortization of the Purchaser's Investment pursuant to the definition of
'Reinvestment Termination Date', notwithstanding that the Purchaser had such
right) and (ii) the assignor shall relinquish its rights with respect to such
interest for all purposes of this Agreement and under the other Agreement
Documents to which such assignor is or, immediately prior to such assignment,
was a party. No such assignment shall be effective unless a fully executed copy
of the related Assignment and Assumption Agreement shall be delivered to the
Agent and the Transferor. All costs and expenses of the Agent and the assignor
and assignee incurred in connection with any assignment hereunder shall be borne
by the Transferor and not by the assignor or any such assignee. No Bank Investor
shall assign any portion of its Commitment hereunder without also simultaneously
assigning an equal portion of its interest in the Liquidity Provider Agreement.
(c) Effects of Assignment. By executing and delivering an
Assignment and Assumption Agreement, the assignor and assignee thereunder
confirm to and agree with each other and the other parties hereto as follows:
(i) other than as provided in such Assignment and Assumption Agreement, the
assignor makes no representation or warranty and assumes no responsibility with
respect to any statements, warranties or representations made in or in
connection with this Agreement, the other Agreement Documents or any other
instrument or document furnished pursuant hereto or thereto or the execution,
legality, validity, enforceability, genuineness, sufficiency or value or this
Agreement, the other Agreement Documents or any such other instrument or
document; (ii) the assignor makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Transferor or the
Agent or the performance or observance by the Transferor or the Agent of any of
their respective obligations under this Agreement, the other Agreement Documents
or any other instrument or document furnished pursuant hereto; (iii) such
assignee confirms that it has received a copy of this Agreement, and such other
instruments, documents and information as it has deemed appropriate to make its
own credit analysis and decision to enter into such Assignment and Assumption
Agreement and to purchase such interest; (iv) such assignee will, independently
and without reliance upon the Agent, or any of its Affiliates, or the assignor
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and based on such agreements, documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement and the other Agreement Documents; (v)
such assignee appoints and authorizes the Agent to take such action as agent on
its behalf and to exercise such powers under this Agreement, the other Agreement
Documents and any other instrument or document furnished pursuant hereto or
thereto as are delegated to the Agent by the terms hereof or thereof, together
with such powers as are reasonably incidental thereto and to enforce its
respective rights and interests in and under this Agreement, the other Agreement
Documents, the Receivables, and the Contracts; (vi) such assignee agrees that it
will perform in accordance with their terms all of the obligations which by the
terms of this Agreement and the other Agreement Documents are required to be
performed by it as the assignee of the assignor; and (vii) such assignee agrees
that it will not institute against the Purchaser any proceeding of the type
referred to in Section 15.6 prior to the date which is one year and one day
after the payment in full of all Commercial Paper issued by the Purchaser.
(d) The Transferor's Obligation to Pay Certain Amounts;
Additional Assignment Amount. The Transferor shall pay to the Agent, for the
account of the Purchaser, in connection with any assignment by the Purchaser to
the Bank Investors pursuant to Section 13.5, an aggregate amount equal to the
Discount Factor to accrue through the end of each outstanding Yield Period plus
all other Aggregate Unpaids (other than the Aggregate Purchaser's Investment).
To the extent that such Discount Factor relates to interest or discount on
Related Commercial Paper, if the Transferor fails to make payment of such
amounts at or prior to the time of assignment by the Purchaser to the Bank
Investors, such amount shall be paid by the Bank Investors (in accordance with
their respective Pro Rata portion) to the Purchaser as additional consideration
for the interests assigned to the Bank Investors and the amount of the
"Aggregate Purchaser's Investment" hereunder held by the Bank Investors shall be
increased by an amount equal to the additional amount so paid by the Bank
Investors.
(e) Downgrade of Bank Investor. If at any time prior to
any assignment by the Purchaser to the Bank Investors as contemplated pursuant
to this Section 13.5, the short term debt rating of any Bank Investor shall be
"A-2" or "P-2" from Standard & Poor's or ▇▇▇▇▇'▇, respectively, with negative
credit implications, such Bank Investor, upon request of the Agent, shall,
within 30 days of such request, assign its rights and obligations hereunder to
another financial institution (which institution's short term debt shall be
rated at least "A-2" and "P-2" from Standard & Poor's and ▇▇▇▇▇'▇, respectively,
and which shall not be so rated with negative credit
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implications). If the short term debt rating of a Bank Investor shall be "A-3"
or "P-3", or lower, from Standard & Poor's or ▇▇▇▇▇'▇, respectively (or such
rating shall have been withdrawn by Standard & Poor's or ▇▇▇▇▇'▇), such Bank
Investor, upon request of the Agent, shall, within five (5) Business Days of
such request, assign its rights and obligations hereunder to another financial
institution (which institution's short term debt shall be rated at least "A-2"
and "P-2" from Standard & Poor's and ▇▇▇▇▇'▇, respectively, and which shall
not be so rated with negative credit implications). In either such case, if any
such Bank Investor shall not have assigned its rights and obligations under this
Agreement within the applicable time period described above, the Purchaser shall
have the right to require such Bank Investor to accept the assignment of such
Bank Investor's Pro Rata portion of the Pool Balance; such assignment shall
occur in accordance with the applicable provisions of this Section 13.5(d). Such
Bank Investor shall be obligated to pay to the Purchaser, in connection with
such assignment, in addition to the Pro Rata portion of the Aggregate
Purchaser's Investment, an amount equal to the interest component of the
outstanding Commercial Paper Notes issued to fund the portion of the Aggregate
Purchaser's Investment being assigned to such Bank Investor, as reasonably
determined by the Agent. Notwithstanding anything contained herein to the
contrary, upon any such assignment to a downgraded Bank Investor as contemplated
pursuant to the immediately preceding sentence, the aggregate available amount
of the Facility Limit, solely as it relates to new Purchases by the Purchaser,
shall be reduced by the amount of unused Commitment of such downgraded Bank
Investor; it being understood and agreed, that nothing in this sentence or the
two preceding sentences shall affect or diminish in any way any such downgraded
Bank Investor's Commitment to the Transferor or such downgraded Bank Investor's
other obligations and liabilities hereunder and under the other Agreement
Documents.
(f) Administration of Agreement after Assignment. After
any assignment by the Purchaser to the Bank Investors pursuant to this Section
13.5 (and the payment of all amounts owing to the Purchaser in connection
therewith), all rights of the Agent set forth herein shall be deemed to be
afforded to the Agent on behalf of the Bank Investors instead of the Purchaser.
In the event that the aggregate of the Assignment Amounts paid by the Bank
Investors pursuant to Section 13.5(a) is less than the Aggregate Purchaser's
Investments on the date of such assignment, then to the extent payments made
hereunder in respect of the Aggregate Purchaser's Investments exceed the
aggregate of the Assignment Amounts, such excess shall be remitted by the Agent
to Bank of America, or such other person acting as collateral agent in respect
of the Purchaser's Commercial Paper Note program.
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SECTION 13.6. Restrictions on Assignments. Except as otherwise
contemplated by Section 13.5, neither the Transferor nor the Purchaser may
assign its rights hereunder or any interest herein without the prior written
consent of the Agent, and the Purchaser may not assign any Undivided Interest
(or portion thereof) to any Person without the prior written consent of the
Transferor; provided, however, that:
(a) Enterprise may assign or grant a security interest
in, any Undivided Interest (or portion thereof) owned by it to Bank of America,
the Enterprise Liquidity Provider or the Enterprise Credit Support Provider (or
any successor thereof by merger, consolidation or otherwise), any Affiliate of
Enterprise (including any securitization vehicle managed by Bank of America) or
such Enterprise Liquidity Provider or Enterprise Credit Support Provider (which
may then assign any such Undivided Interest (or portion thereof) so assigned or
any interest therein to such party or parties as it may choose); and without
limiting the foregoing, the Purchaser may, from time to time, with prior or
concurrent notice to Transferor and Collection Agent, in one transaction or a
series of transactions, assign all or a portion of the Purchaser's Investment
and its rights and obligations under this Agreement and any other Agreement
Documents to which it is party to a Conduit Assignee. Upon and to the extent of
such assignment by the Purchaser to a Conduit Assignee, (i) such Conduit
Assignee shall be the owner of the assigned portion of the Purchaser's
Investment, (ii) the related administrative and or managing agent for such
Purchaser will act as the Administrative Agent for such Conduit Assignee, with
all corresponding rights and powers, express or implied, granted to the
Administrative Agent hereunder or under the other Agreement Documents, (iii)
such Conduit Assignee and its liquidity support provider(s) and credit support
provider(s) and other related parties shall have the benefit of all the rights
and protections provided to the Purchaser and its Enterprise Liquidity Support
Provider(s) and Enterprise Credit Support Provider(s), respectively, herein and
in the other Agreement Documents (including, without limitation, any limitation
on recourse against such Purchaser or related parties, any agreement not to file
or join in the filing of a petition to commence an insolvency proceeding against
such Purchaser, and the right to assign to another Conduit Assignee as provided
in this paragraph), (iv) such Conduit Assignee shall assume all (or the assigned
or assumed portion) of the Purchaser's obligations, if any, hereunder and any
other Agreement Document, and the Purchaser shall be released from such
obligations, in each case to the extent of such assign-
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ment, and the obligations of the Purchaser and such Conduit Assignee shall be
several and not joint, (v) all distributions in respect of the Purchaser's
Investment shall be made to the applicable agent or administrative agent, as
applicable, on behalf of the Purchaser and such Conduit Assignee on a pro rata
basis according to their respective interests, (vi) the definition of the term
"Commercial Paper Rate" with respect to the portion of the Purchaser's
Investment funded with commercial paper issued by the Purchaser from time to
time shall be determined in the manner set forth in the definition of
"Commercial Paper Rate" applicable to the Purchaser on the basis of the interest
rate or discount applicable to commercial paper issued by such Conduit Assignee
(rather than the Purchaser), (vii) the defined terms and other terms and
provisions of this Agreement and the other Agreement Documents shall be
interpreted in accordance with the foregoing, and (viii) if requested by the
Agent or administrative agent with respect to the Conduit Assignee, the parties
will execute and deliver such further agreements and documents and take such
other actions as the Agent or administrative agent may reasonably request to
evidence and give effect to the foregoing. No assignment by the Purchaser to a
Conduit Assignee of all or any portion of the Purchaser's Investment shall in
any way diminish the related Bank Investors' obligation under Section 13.5 to
fund any Reinvestment not funded by the Purchaser or such Conduit Assignee or to
acquire from the Purchaser or such Conduit Assignee all or any portion of the
Purchaser's Investment.
(b) The Purchaser may assign and grant a security
interest in any interest in, to and under any Undivided Interest owned by it,
this Agreement and the other Agreement Documents to Bank of America, as
collateral agent or collateral trustee, and any successor in such capacity, to
secure each such Purchaser's obligations under or in connection with its
Commercial Paper Notes, the Enterprise Liquidity Agreement, the Enterprise
Credit Support Agreement and certain other obligations of the Purchaser incurred
in connection with the funding of the Purchases and Reinvestments hereunder,
which assignment and grant of a security interest shall not be considered an
"assignment" for purposes of Section 13.5(b), or, prior to the enforcement of
such security interest, for purposes of any other provision of this Agreement.
(c) The Transferor agrees to advise the Agent within five
Business Days after notice to the Transferor of any proposed assignment by the
Purchaser of any Undivided Interest (or portion thereof), not otherwise
permitted under
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subsection (a), of the Transferor's consent or non-consent to such assignment.
If the Transferor does not consent to such assignment, the Purchaser may
immediately assign such Undivided Interest (or portion thereof), to Bank of
America, the Enterprise Liquidity Provider or the Enterprise Credit Support
Provider or any Affiliate of Bank of America, the Enterprise Liquidity Provider
or the Enterprise Credit Support Provider. All of the aforementioned assignments
shall be upon such terms and conditions as the Purchaser and the assignee may
mutually agree.
SECTION 13.7. Rights of Assignee. Upon the assignment by the
Purchaser of any Undivided Interest (or portion thereof) owned by it in
accordance with this Article XIII, (a) the assignee receiving such assignment
shall have all of the rights of the Purchaser hereunder with respect to such
Undivided Interest (or such parties thereof) and (b) all references to the
Purchaser in Section 4.2 shall be deemed to apply to such assignee to the extent
of its interest the Purchaser's Investment and the related Collections.
SECTION 13.8. Authorization of Agent. The Purchaser authorizes
the Agent to, and the Agent agrees that it shall, endorse the Certificate(s) of
the Purchaser to reflect any assignments made pursuant to this Article XIII or
otherwise.
SECTION 13.9. Notice of Assignment. The Purchaser shall
provide notice to the Transferor and the Agent of any assignment of any
Undivided Interest (or portion thereof) by the Purchaser to any assignee.
SECTION 13.10. Evidence of Assignment; Endorsement of
Certificate. Any assignment of any Undivided Interest (or portion thereof) to
any Person may be evidenced by an instrument of assignment in the form of
Schedule 13.5(b) or by such other instruments) or documents) as may be
satisfactory to the Purchaser, the Agent and the assignee. The Purchaser
authorizes the Agent to, and the Agent agrees that it shall, endorse its
Certificate of Assignments to reflect any assignments made pursuant to this
Article XIII or otherwise.
SECTION 13.11. Rights of Support Providers. The Transferor
hereby agrees that, upon notice to the Transferor, the Enterprise Liquidity
Provider, the Enterprise Credit Support Provider and the collateral agent or
collateral trustee referred to in Section 13.1 (collectively, the "Assignee
Parties", each an "Assignee Party"), or any of them, may exercise all the rights
of Bank of America (or Enterprise) respectively hereunder, with
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respect to Undivided Interests, and Collections with respect thereto, which have
been assigned (or in which a security interest has been granted) to such
Assignee Party, with respect to all Undivided Interests (or portions thereof),
and Collections with respect thereto, which are owned by Enterprise (and not
subject to an assignment or a separate security interest in favor of the
Enterprise Liquidity Provider or Enterprise Credit Support Provider), and all
other rights and interests of Enterprise, in, to or under this Agreement or any
other Agreement Document. Without limiting the foregoing, upon such notice such
Assignee Party may request Servicer to segregate its allocable shares of
Collections, in accordance with Section 8.2(a), may give a Successor Notice
pursuant to Section 8.1(a), may give or require the Agent to give notice to the
Lock-Box Banks as referred to in Section 8.3(a), and may direct the Obligors of
Pool Receivables to make payments in respect thereof directly to an account
designated by them (provided that such Assignee Party shall designate a single
account for the making of such payments with respect to any Pool Receivable), in
each case, to the same extent as Bank of America (or Enterprise) might have
done.
ARTICLE XIV
INDEMNIFICATION
SECTION 14.1. Indemnities by the Transferor and Servicer. (a)
General Indemnity. Without limiting any other rights which any such Person may
have hereunder or under applicable law, the Transferor hereby agrees to
indemnify each of the Agent, the Purchasers, the Enterprise Liquidity Support
Provider, the Enterprise Credit Support Provider, Bank of America, each of and
Bank of America's Affiliates, their respective successors, transferees,
participants and assigns and all officers, directors, shareholders, controlling
persons, employees and agents of any of the foregoing (each an "Indemnified
Party"), forthwith on demand from and against any and all damages, losses,
claims, liabilities and related costs and expenses, including reasonable
attorneys fees and disbursements (all of the foregoing being collectively
referred to as "Indemnified Amounts") awarded against or incurred by any of them
arising out of or relating to this Agreement or the ownership or funding of any
Undivided Interest or in respect of any Receivable or any Contract, excluding,
however, (a) Indemnified Amounts to the extent resulting from gross negligence
or willful misconduct on the part of such Indemnified Party or (b) recourse
(except as otherwise specifically provided in this Agreement) for Defaulted
Receivables or delinquent receivables. Without limiting the
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foregoing, the Transferor shall indemnify each Indemnified Party for Indemnified
Amounts arising out of or relating to:
(i) the transfer by the Transferor of any interest in
any Receivable other than the transfer of an Undivided Interest to the
Agent on behalf of the Purchaser or the Bank Investors, as the case may
be, pursuant this Agreement and the grant of a security interest to the
Agent on behalf of Purchaser and the Bank Investors pursuant to Section
9.1;
(ii) the breach of any representation or warranty
made by the Transferor or the Seller (or any of their officers) under
or in connection with this Agreement, any other Agreement Document to
which such entity is a party, any Periodic Report or any other
information or report delivered by the Transferor pursuant hereto,
which shall have been false or incorrect in any material respect when
made or deemed made and any losses, if any, relating to Receivables
included in the Receivables Pool as Eligible Receivables that were 60
days or more past due on the date of their inclusion and any amounts
relating to dilutions on Eligible Receivables included in the
Receivables Pool;
(iii) the failure by the Transferor or the Seller to
comply with any applicable law, rule or regulation with respect to any
Pool Receivable or the related Contract, or the nonconformity of any
Pool Receivable or the related Contract with any such applicable law,
rule or regulation;
(iv) the failure to vest and maintain vested in the
Agent, on behalf of the Purchaser and the Bank Investors, an undivided
percentage ownership interest, to the extent of each Undivided Interest
owned by them hereunder, in the Receivables in, or purporting to be in,
the Receivables Pool, free and clear of any Adverse Claim, other than
an Adverse Claim arising solely as a result of an act of the Agent, on
behalf of the Purchaser or any Bank Investor, or any assignee therefrom
(when used in this clause (iv), an Adverse Claim shall include any lien
for taxes whether accrued and payable or not), whether existing at the
time of any Purchase or Reinvestment of Undivided Interest or at any
time thereafter;
(v) the failure to file, or any delay in filing,
financing statements or other similar instruments or documents under
the UCC of any applicable jurisdiction or other applicable laws with
respect to any Receivables in, or purporting to be in, the Receivables
Pool, whether at the time of any Purchase or Reinvestment or at any
time thereafter;
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(vi) any dispute, claim, offset or defense (other
than discharge in bankruptcy) of the Obligor to the payment of any
Receivable in, or purporting to be in, the Receivables Pool (including,
without limitation, a defense based on such Receivable's or the related
Contract's not being a legal, valid and binding obligation of such
Obligor enforceable against it in accordance with its terms), or any
other claim resulting from the sale of the merchandise or services
related to such Receivable or the furnishing or failure to furnish such
merchandise or services;
(vii) any products liability claim or personal injury
or property damage suit or other similar or related action arising out
of or in connection with merchandise or services that are the subject
of any Pool Receivable; or
(viii) any tax or governmental fee or charge
(including, without limitation, all intangibles and similar taxes and
all other taxes, but not including taxes upon or measured by net income
or any portion thereof), all interest and penalties thereon or with
respect thereto, and all out-of-pocket costs and expenses, including
the reasonable fees and expenses of counsel in defending against the
same, which may arise by reason of the purchase or ownership of any
Undivided Interest, or any other interest in the Pool Receivables or in
any goods which secure any such Pool Receivables.
(b) Servicer Indemnity. Without limiting any other rights
which any such Person may have hereunder or under applicable law, the Servicer
hereby agrees to indemnify each Indemnified Party, forthwith on demand from and
against any and all Indemnified Amounts awarded against or incurred by any of
them arising out of or relating to this Agreement or the ownership, servicing or
funding of any Undivided Interest or in respect of any Receivable or any
Contract, excluding, however, (a) Indemnified Amounts to the extent resulting
from gross negligence or willful misconduct on the part of such Indemnified
Party and (b) recourse (except as otherwise specifically provided in this
Agreement) for Defaulted Receivables and Delinquent Accounts. Without limiting
the foregoing, the Servicer shall indemnify each Indemnified Party for
Indemnified Amounts arising out of or relating to:
(i) the breach of any representation or warranty made
by the Servicer (or any of its officers) under or in connection with
this Agreement, any other Agreement Document to which Servicer is a
party, any Periodic Report or any other information or report delivered
by the Servicer pursuant hereto, which shall have been false or
incorrect in any
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material respect when made or deemed made and any losses, if any,
relating to Receivables included in the Receivables Pool as Eligible
Receivables that were 60 days or more past due on the date of their
inclusion and any amounts relating to dilutions on Eligible Receivables
included in the Receivables Pool;
(ii) the failure by the Servicer to comply with any
applicable law, rule or regulation with respect to any Pool Receivable
or the related Contract, or the nonconformity of any Pool Receivable or
the related Contract with any such applicable law, rule or regulation;
and
(iii) any failure of the Servicer to perform its
duties or obligations in accordance with the provisions of Article
VIII.
SECTION 14.2. Contest of Tax Claim; After-Tax Basis. If any
Indemnified Party shall have notice of any attempt to impose or collect any tax
or governmental fee or charge for which indemnification will be sought from the
Transferor under Section 14.1(a)(viii), such Indemnified Party shall give prompt
and timely notice of such attempt to the Transferor and the Transferor shall
have the right, at its expense, to conduct or participate in any proceedings
resisting or objecting to the imposition or collection of any such tax,
governmental fee or charge. Indemnification hereunder shall be in an amount
necessary to make the Indemnified Party whole after taking into account any tax
consequences to the Indemnified Party of the payment of any of the aforesaid
taxes and the receipt of the indemnity provided hereunder or of any refund of
any such tax previously indemnified hereunder, including the effect of such tax
or refund on the amount of tax measured by net income or profits which is or was
payable by the Indemnified Party.
SECTION 14.3. Contribution. If for any reason the
indemnification provided in Section 14.1 is unavailable to an Indemnified Party
or is insufficient to hold an Indemnified Party harmless, then the Transferor
shall contribute to the amount paid or payable by such Indemnified Party as a
result of such loss, claim, damage or liability in such proportion as is
appropriate to reflect not only the relative benefits received by such
Indemnified Party on the one hand and the Transferor on the other hand but also
the relative fault of such Indemnified Party as well as any other relevant
equitable considerations.
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ARTICLE XV
MISCELLANEOUS
SECTION 15.1. Amendments, Etc. Any provision of this Agreement
or any other Agreement Document may be amended or waived if, but only if, such
amendment or waiver is in writing and is signed by the Transferor, the Servicer,
the Purchaser and the Agent, as applicable (and, if Article IX or the rights or
duties of the Agent are affected thereby, by the Agent); provided that no such
amendment or waiver shall, unless signed by each Bank Investor directly affected
thereby, (i) increase the Commitment of a Bank Investor, (ii) reduce the
Aggregate Purchaser's Investment or rate of interest to accrue thereon or any
fees or other amounts payable hereunder, (iii) postpone any date fixed for the
payment of any Scheduled distribution in respect of Aggregate Purchaser's
Investment or interest with respect thereto or any fees or other amounts payable
hereunder or for termination of any Commitment, (iv) change the percentage of
the Commitments or the number of Bank Investors, which shall be required for the
Bank Investors or any of them to take any action under this Section or any other
provision of this Agreement, (v) release all or substantially all of the
property with respect to which a security or ownership interest therein has been
granted hereunder to the Agent or the Bank Investors,(vi) extend or permit the
extension of the Commitment Termination Date, (vii) amend the definition of
"Loss Reserve," "Dilution Reserve" or "Servicer's Fee Reserve," (viii) change
the Concentration Limits or (ix) waive any Termination Events. In the event the
Agent requests the Purchaser's or a Bank Investor's consent pursuant to the
foregoing provisions and the Agent does not receive a consent (either positive
or negative) from the Purchaser or such Bank Investor within 10 Business Days of
the Purchaser's or Bank Investor's receipt of such request, then the Purchaser
or such Bank Investor (and its percentage interest hereunder) shall be
disregarded in determining whether the Agent shall have obtained sufficient
consent hereunder.
SECTION 15.2. Notices, Etc. All notices and other
communications provided for hereunder shall, unless otherwise stated herein, be
in writing (including Telex and facsimile communication) and shall be personally
delivered or sent by certified mail, postage prepaid, or by Telex, or by
facsimile, to the intended party at the address or Telex or facsimile number of
such party set forth under its name on the signature pages hereof or at such
other address or Telex or facsimile number as shall be designated by such party
in a written notice to the other parties hereto. All such notices and
communications shall be effective, (a) if personally delivered, when received,
(b) if sent by certified mail, three Business Days after having been deposited
in the mail, postage prepaid, (c) if sent by overnight courier, one
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Business Day after having been given to such courier, (d) if transmitted by
Telex, when sent, answerback confirmed, and (e) if transmitted by facsimile,
when sent, receipt confirmed by telephone or electronic means, except that
notices and communications pursuant to Article I shall not be effective until
received.
SECTION 15.3. No Waiver; Remedies. No failure on the part of
the Agent, Bank of America, any Affected Party, any Indemnified Party, the
Purchaser, any Bank Investor or any other holder of any Undivided Interest to
exercise, and no delay in exercising, any right hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any right hereunder
preclude any other or further exercise thereof or the exercise of any other
right. The remedies herein provided are cumulative and not exclusive of any
remedies provided by law. Without limiting the foregoing, each of Bank of
America and any Enterprise Liquidity Provider or Enterprise Credit Support
Provider is hereby authorized by the Transferor at any time and from time to
time, to the fullest extent permitted by law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final) at any time
held and other indebtedness at any time owing by Bank of America, Enterprise
Liquidity Provider or Enterprise Credit Support Provider to or for the credit or
the account of the Transferor, now or hereafter existing under this Agreement,
to the payment of any amounts owed by the Transferor hereunder to the Agent, any
Affected Party, any Indemnified Party or the Purchaser, any Bank Investor or
their respective successors and assigns; provided, however, that none of Bank of
America, Enterprise Liquidity Provider or Enterprise Credit Support Provider
shall, through the exercise of such setoff or otherwise, obtain payment with
respect to any amounts due to it (or their respective successors and assigns)
which results in its or their receiving more than their pro rata share of the
aggregate of such amounts due hereunder.
SECTION 15.4. Binding Effect; Survival. This Agreement shall
be binding upon and inure to the benefit of the Transferor, the Servicer, the
Agent, the Purchaser, the Bank Investors and their respective successors and
assigns, and the provisions of Section 4.2 and Article XIV shall inure to the
benefit of the Affected Parties and the Indemnified Parties, respectively, and
their respective successors and assigns; provided, however, nothing in the
foregoing shall be deemed to authorize any assignment not permitted by Section
13.1. This Agreement shall create and constitute the continuing obligations of
the parties hereto in accordance with its terms, and shall remain in full force
and effect until such time, after the Commitment Termination Date, as all
Undivided Interests shall have been reduced to zero. The rights and remedies
with respect to any breach of any representa-
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tion and warranty made by the Transferor or the Servicer pursuant to Article VI
and the indemnification and payment provisions of Article XIV and Sections 4.2,
15.5 and 15.7 shall be continuing and shall survive any termination of this
Agreement.
SECTION 15.5. Costs, Expenses and Taxes. In addition to its
obligations under Article XIV, the Transferor agrees to pay on demand:
(a) all costs and expenses incurred by the Agent, the
Purchaser, each Bank Investor, Bank of America, the Enterprise
Liquidity Provider, the Enterprise Credit Support Provider and their
respective Affiliates in connection with the negotiation,
preparation, execution and delivery, the administration (including
periodic auditing) or the enforcement of, or any actual or claimed
breach of, or any amendment to or waiver of any provision contained
in this Agreement, the Certificate of Assignments and the other
Agreement Documents, including, without limitation (i) the
reasonable fees and expenses of counsel to any of such Persons
incurred in connection with any of the foregoing or in advising such
Persons as to their respective rights and remedies under any of the
Agreement Documents, and (ii) all reasonable out-of-pocket expenses
(including reasonable fees and expenses of independent accountants)
incurred in connection with any review of the Transferor's books and
records either prior to the execution and delivery hereof or
pursuant to Section 7.1(c); and
(b) all stamp and other taxes and fees payable or
determined to be payable in connection with the execution, delivery,
filing and recording of this Agreement, the Certificate of
Assignments or the other Agreement Documents, and agrees to
indemnify each Indemnified Party against any liabilities with
respect to or resulting from any delay in paying or omission to pay
such taxes and fees.
SECTION 15.6. No Proceedings. The Transferor, the Servicer,
Wackenhut (individually and not as Servicer) and Bank of America, individually
and as Agent and each Bank Investor, each hereby agrees that it will not
institute against the Purchaser or any Bank Investor or join any other Person in
instituting against the Purchaser any insolvency proceeding (namely, any
proceeding of the type referred to in the definition of Event of Bankruptcy) so
long as any Commercial Paper Notes issued by the Purchaser shall be outstanding
or there shall not have elapsed one year plus one day since the last day on
which any such Commercial Paper Notes shall have been outstanding. The foregoing
shall not limit the Trans-
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feror's right to file any claim in or otherwise take any action with respect to
any insolvency proceeding that was instituted by any Person other than the
Transferor.
SECTION 15.7. Bank of America Program Confidentiality. Each
party hereto (other than Bank of America) acknowledges that Bank of America
regards the structure of the transactions contemplated by this Agreement, and by
the Enterprise Liquidity Agreement and Enterprise Credit Support Agreement and
its other program documents referred to therein, to be proprietary, and each
such party severally agrees that:
(a) unless Bank of America shall otherwise agree in
writing, and except as provided in subsection (b), such party will not
disclose to any other person or entity:
(i) any information regarding, or copies of, this
Agreement or any transaction contemplated hereby,
(ii) any information regarding the organization or
business of Enterprise generally, or
(iii) any information regarding Bank of America which
is designated by Bank of America to such party in writing or otherwise
as confidential or not otherwise available to the general public;
(b) such party will make the Information available to
only such of its officers, directors, employees and agents who (A) in the
good faith belief of such party, have a need to know such Information, (B)
are informed by such party of the confidential nature of the Information
and the terms of this Section 15.7, and (C) are subject to confidentiality
restrictions consistent with this Section 15.7;
(c) such party will use the Information solely for the
purposes of evaluating, administering and enforcing the transactions
contemplated by this Agreement and making any necessary business judgments
with respect thereto; and
(d) such party will, upon demand, return (and cause its
representatives to return) to Bank of America, or to such other
Information Provider as shall have furnished it with any Information, all
documents or other written material received from Bank of America or such
other Information Provider which constitute or contain any Information
described in subclause (B) or (C) of clause (i) above and all copies of
such documents or other material in its possession or in the possession
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of any of its representatives, and will not retain any copy, summary or
extract thereof on any storage medium whatsoever.
(e) Notwithstanding clause (i) of subsection (a), each
party may disclose any Information:
(i) to its attorneys, consultants and auditors who
(A) in the good faith belief of such party, have a need to know such
Information, (B) are informed by such party of the confidential nature
of the Information and the terms of this Section 15.7, and (C) are
subject to confidentiality restrictions consistent with this Section
15.7,
(ii) to any other party to this Agreement, for the
purposes contemplated hereby or to any rating agency then rating the
Commercial Paper Notes,
(iii) as may be required by any municipal, state,
federal or other regulatory body having or claiming to have
jurisdiction over such party, in order to comply with any law, order,
regulation, regulatory request or ruling applicable to such party, or
(iv) Subject to subsection (c), in the event such
party is legally compelled (by interrogatories, requests for
information or copies, subpoena, civil investigative demand or similar
process) to disclose such Information.
(f) In the event that any party hereto or any one to whom
such party or its representatives transmits the Information is requested
or becomes legally compelled (by interrogatories, requests for information
or documents, subpoena, civil investigative demand or similar process) to
disclose any of the Information, such party will (or will cause its
representatives to): provide Bank of America with prompt written notice so
that (A) Enterprise, Bank of America, or any other Information Provider
may seek a protective order or other appropriate remedy, or (B) Bank of
America may, if it so chooses, agree that such party (or its
representatives) may disclose such Information pursuant to such request or
legal compulsion.
(g) unless Bank of America agrees that such Information
may be disclosed, make a timely objection to the request or compulsion to
provide such Information on the basis
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that such Information is confidential and subject to the agreements
contained in this Section 15.7;
(h) take any action as Bank of America or any other
Information Provider may reasonably request to seek a protective order
or other appropriate remedy, provided that, in connection therewith,
such party shall have first received such assurances as it may
reasonably request that Bank of America or such other Information
Provider shall reimburse such party's or its representatives'
reasonable costs and expenses or provide such other assistance as such
party or its representatives may reasonably require; and
(i) in the event that such protective order or other
remedy is not obtained, or Bank of America agrees that such Information
may be disclosed, furnish only that portion of the Information which is
legally required to be furnished, and, provided such party (or its
representative) is reimbursed or assisted as referred to in clause
(iii) above, exercise best efforts to obtain reliable assurance that
confidential treatment will be accorded the Information.
This Section 15.7 shall survive termination of this Agreement.
SECTION 15.8. Confidentiality of the Transferor Information.
(a) Each party hereto (other than the Transferor)
acknowledges that certain of the information provided to such party by
or on behalf of the Transferor in connection with this Agreement and
the transactions contemplated hereby is or may be confidential, and
each such party severally agrees that, unless the Transferor shall
otherwise agree in writing, and except as provided in subsection (b),
such party will not disclose to any other person or entity:
(i) any information regarding, or copies of, any Periodic
Reports, and any non-public financial statements, reports and other
information, furnished by the Transferor to the Purchaser, any Bank
Investor or the Agent pursuant to Section 3.4, 6.1(j), 7.1(c) or 7.2,
or
(ii) any other information regarding the Transferor, Servicer,
Seller and any Originator which is designated by the Transferor to such
party in writing or otherwise as confidential;
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the information referred to in clauses (i) and (ii), above, furnished by the
Transferor or any attorney for or other representative of the Transferor (each
a "Transferor Information Provider"), is collectively referred to as the
"Transferor Information;" provided, however, the "Transferor Information"
shall not include:
(i) any information which is or becomes generally
available to the general public or to such party on a nonconfidential
basis from a source other than the Transferor or any other Transferor
Information Provider, or which was known to such party on a
nonconfidential basis prior to its disclosure by the Transferor or any
other Transferor Information Provider), or
(ii) general information regarding the nature of this
Agreement, the basic terms hereof (including without limitation the
amount and nature of the Purchaser's Investments or any Bank Investor's
hereunder and of the recourse or other credit enhancement provided by
the Transferor hereunder), the nature, amount and status of the Pool
Receivables, and the current and/or historical ratios of losses to
liquidations and/or outstandings with respect to the Receivables Pool,
and the identity of the Transferor.
(b) Notwithstanding subsection (a), each party may
disclose any Transferor Information:
(i) to any of such party's attorneys, consultants and
auditors, and to such of the Enterprise Liquidity Provider, Enterprise
Credit Support Provider, assignee, any dealer or placement agent for
the Purchaser's commercial paper, and any actual or potential assignees
of, or participants in, any of the rights or obligations of the
Purchaser, Enterprise Liquidity Provider or Enterprise Credit Support
Provider, Bank of America under or in connection with this Agreement,
who (A) in the good faith belief of such party, have a need to know
such the Transferor Information, (B) are informed by such party of the
confidential nature of the Transferor Information and the terms of this
Section 15.8, and (C) are subject to confidentiality restrictions
generally consistent with this Section 15.8,
(ii) to any rating agency that maintains a rating for
the Purchaser's commercial paper or is considering the issuance of such
a rating, for the purposes of reviewing the credit of the Purchaser in
connection with such rating,
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(iii) to any other party to this Agreement, for the
purposes contemplated hereby,
(iv) as may be required by any municipal, state,
federal or other regulatory body having or claiming to have
jurisdiction over such party, in order to comply with any law, order,
regulation, regulatory request or ruling applicable to such party, or
(v) subject to subsection (c), in the event such
party is legally compelled (by interrogatories, requests for
information or copies, subpoena, civil investigative demand or similar
process) to disclose such the Transferor Information.
(c) In the event that any party hereto (other than the
Transferor) or any of its representatives is requested or becomes legally
compelled (by interrogatories, requests for information or documents, subpoena,
civil investigative demand or similar process) to disclose any of the Transferor
Information, such party will (or will cause its representatives to):
(i) provide the Transferor with prompt written notice
so that (A) the Transferor or any other the Transferor Information
Provider may seek a protective order or other appropriate remedy, or
(B) the Transferor may, if it so chooses, agree that such party (or its
representatives) may disclose such the Transferor Information pursuant
to such request or legal compulsion;
(ii) unless the Transferor agrees that such the
Transferor Information may be disclosed, make a timely objection to the
request or compulsion to provide such the Transferor Information on the
basis that such the Transferor Information is confidential and subject
to the agreements contained in this Section 15.8;
(iii) take any action as the Transferor or any other
the Transferor Information Provider may reasonably request to seek a
protective order or other appropriate remedy, provided that, in
connection therewith, such party shall have first received such
assurances as it may reasonably request that the Transferor or such
other the Transferor Information Provider shall reimburse such party's
or its representatives, reasonable costs and expenses or provide such
other assistance as such party or its representatives may reasonably
require; and
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(iv) in the event that such protective order or other
remedy is not obtained, or the Transferor agrees that such the
Transferor Information may be disclosed, furnish only that portion of
the Transferor Information which is legally required to be furnished,
and, provided such party (or its representative) is reimbursed or
assisted as referred to in clause (iii) above, exercise best efforts to
obtain reliable assurance that confidential treatment will be accorded
the Transferor Information.
This Section 15.8 shall survive termination of this Agreement.
SECTION 15.9. Captions and Cross References. The various
captions (including, without limitation, the table of contents) in this
Agreement are provided solely for convenience of reference and shall not affect
the meaning or interpretation of any provision of this Agreement. Unless
otherwise indicated, references in this Agreement to any Section, Appendix,
Schedule or Exhibit are to such Section of or Appendix, Schedule or Exhibit to
this Agreement, as the case may be, and references in any Section, subsection,
or clause to any subsection, clause or subclause are to such subsection, clause
or subclause of such Section, subsection or clause.
SECTION 15.10. Integration. This Agreement contains a final
and complete integration of all prior expressions by the parties hereto with
respect to the subject matter hereof and shall constitute the entire Agreement
among the parties hereto with respect to the subject matter hereof, superseding
all prior oral or written understandings.
SECTION 15.11. Governing Law. THIS AGREEMENT, INCLUDING THE
RIGHTS AND DUTIES OF THE PARTIES HERETO, SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK.
SECTION 15.12. Waiver Of Jury Trial. THE TRANSFEROR AND
SERVICER HEREBY EXPRESSLY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR
PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS AGREEMENT THE CERTIFICATE
OF ASSIGNMENTS, ANY OTHER AGREEMENT DOCUMENT OR UNDER ANY AMENDMENT, INSTRUMENT
OR DOCUMENT DELIVERED OR WHICH MAY BE IN THE FUTURE BE DELIVERED IN CONNECTION
HEREWITH OR ARISING FROM ANY BANKING OR OTHER RELATIONSHIP EXISTING IN
CONNECTION WITH THIS AGREEMENT, THE CERTIFICATE OF ASSIGNMENTS OR ANY OTHER
AGREEMENT DOCUMENT AND AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED
BEFORE A COURT AND NOT A JURY TRIAL.
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SECTION 15.13. Consent To Jurisdictions Waiver Of Immunities.
EACH OF THE TRANSFEROR AND SERVICER, THE PURCHASER, EACH BANK INVESTOR AND AGENT
HEREBY ACKNOWLEDGES AND AGREES THAT:
(a) IT IRREVOCABLY (i) SUBMITS TO THE JURISDICTION,
FIRST, OF ANY UNITED STATES FEDERAL COURT, AND SECOND, IF FEDERAL
JURISDICTION IS NOT AVAILABLE, OF ANY NEW YORK STATE COURT, IN EITHER CASE
SITTING IN NEW YORK CITY, NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT
OF OR RELATING TO THIS AGREEMENT, (ii) AGREES THAT ALL CLAIMS IN RESPECT
OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED ONLY IN SUCH NEW
YORK STATE OR FEDERAL COURT AND NOT IN ANY OTHER COURT, AND (iii) WAIVES,
TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO, THE DEFENSE OF AN
INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING.
(b) TO THE EXTENT THAT IT HAS OR HEREAFTER MAY ACQUIRE
ANY IMMUNITY FROM THE JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS
(WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT,
ATTACHMENT IN AID TO EXECUTION, EXECUTION OR OTHERWISE) WITH RESPECT TO
ITSELF OR ITS PROPERTY, IT HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY IN
RESPECT OF ITS OBLIGATIONS UNDER OR IN CONNECTION WITH THIS AGREEMENT.
SECTION 15.14. Execution in Counterparts. This Agreement may
be executed in any number of counterparts and by the 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
Agreement.
SECTION 15.15. Purchaser's Liabilities. The obligations of the
Purchaser hereunder are solely the corporate obligations of the Purchaser and no
personal liability shall attach to or be incurred by Global Securitization
Services LLC or any stockholder, employee, officer, director or incorporator of
the Purchaser, and the Transferor and Servicer expressly waive any claim based
on such personal liability. No recourse shall be had for an obligation or claim
arising out of or based upon this Agreement against Global Securitization
Services LLC or against any stockholder, employee, officer, director or
incorporator of the Purchaser. This Section 15.15 shall not relieve any such
Person of any liability it might otherwise have for its own gross negligence or
willful misconduct.
SECTION 15.16. Agent's Liabilities. The obligations of the
Agent hereunder are solely the corporate obligations of such Agent and no
personal liability shall attach to or be incurred by the Agent or any
stockholder, employee, officer, director or incorporator of the Agent, and the
Transferor and Servicer
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expressly waive any claim based on such personal liability. No recourse shall be
had for an obligation or claim arising out of or based upon this Agreement
against Bank of America or against any stockholder, employee, officer, director
or incorporator of either of them; provided that, this Section 15.16 shall not
relieve any such Person of any liability it might otherwise have for its own
gross negligence or willful misconduct.
SECTION 15.17. Delegation of Servicer's Duties. Wackenhut, as
Servicer, may at any time, with the consent of the Agent, delegate to an
Affiliate of Wackenhut any of its servicing obligations hereunder, provided
however that no such delegation shall operate to relieve the Servicer of any of
its liabilities hereunder.
SECTION 15.18. Characterization of the Transactions
Contemplated by this Agreement. It is the intention of the parties hereto that
the transactions contemplated hereby constitute the sale of the Undivided
Interests, conveying good title thereto free and clear of any Liens to the
Purchaser and the Bank Investors, as the case may be and that the Undivided
Interests not be part of the Transferor's estate in an Event of Bankruptcy. If,
notwithstanding the foregoing, the transactions contemplated hereby are deemed a
financing, the parties intend that the Transferor shall be deemed to have
granted to the Agent, for the benefit of the Purchaser and the Bank Investors
and the Transferor hereby grants to the Agent, for the benefit of the Purchaser
and the Bank Investors, a first priority perfected security interest in all of
the Transferor's right, title and interest in, to and under the Receivables,
together with Related Security and Collections with respect thereto and under
the Receivables Purchase Agreement, and that this Agreement shall constitute a
security agreement under applicable law.
- SIGNATURE PAGES FOLLOW -
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IN WITNESS WHEREOF, the parties have caused this Agreement to
be executed by their respective officers thereunto duly authorized as of the
date first above written.
WACKENHUT FUNDING CORPORATION,
as the Transferor
By
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Title
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▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇. ▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
THE WACKENHUT CORPORATION,
as Servicer
By
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Title
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▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇. ▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
ENTERPRISE FUNDING CORPORATION,
as Purchaser
By
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Title
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c/o Global Securitization Services
▇▇▇ ▇▇▇▇ ▇▇(▇▇) ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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BANK OF AMERICA, N.A.,
as Agent
By:
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Title: Vice President
IL1-231-16-05
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Global Asset Backed Securitization
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Commitment: BANK OF AMERICA, N.A.,
$51,000,000 as Bank Investor
By:
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Title: Vice President
IL1-231-16-05
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▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Global Asset Backed Securitization
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Commitment: The Bank of Nova Scotia,
$25,500,000 as Bank Investor
By:
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Title:
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▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇▇
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Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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APPENDIX A
DEFINITIONS
This is Appendix A to the Amended and Restated Transfer and
Administration Agreement dated as of January 26, 2001 among Wackenhut
Funding Corporation, The Wackenhut Corporation, and Enterprise Funding
Corporation, Bank of America, N.A., as Agent and the Bank Investors (as
amended, supplemented or otherwise modified from time to time, this
"Agreement"). Each reference in this Appendix A to any Section, Appendix or
Exhibit refers to such Section of or Appendix or Exhibit to this Agreement.
A. Defined Terms. As used in this Agreement, unless the context
requires a different meaning, the following terms have the meanings
indicated herein below (terms used but not defined herein shall have the
meanings set forth in the Revolving Credit Agreement):
"Adjusted Average Maturity" has the meaning set forth in Appendix
B.
"Agent" has the meaning set forth in the preamble.
"Adverse Claim" means a lien, security interest, charge, or
encumbrance, or other right or claim of any Person other than (a) a
potential claim or right (that has not yet been asserted) of a trustee
appointed for an Obligor in connection with any Event of Bankruptcy or (b)
an unfiled lien for taxes accrued but not yet payable.
"Affected Party" means each of the Purchaser, any Bank Investor,
the Enterprise Liquidity Provider, each Enterprise Credit Support Provider,
any other Person providing credit or liquidity support to the Purchaser, or
any Bank Investor any permitted assignee of any Purchaser, any Bank
Investor, Enterprise Liquidity Provider, Enterprise Credit Support Provider
or such other Person, any assignee of any of the Purchaser's obligations to
any Enterprise Liquidity Provider, any Enterprise Credit Support Provider,
any holder of a participation interest in the rights and obligations of any
Enterprise Liquidity Provider or Enterprise Credit Support Provider, the
Agent, Bank of America, and any holding company of Bank of America.
"Affiliate" when used with respect to a Person, means any other
Person controlling, controlled by, or under common control with, such
Person.
"Aggregate Unpaids" means, at any time, an amount equal to the sum
of (i) the aggregate Earned Discount at such time, (ii) the
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Aggregate Total Investment at such time, and (iii) all other amounts owed
(whether due or accrued) hereunder by the Transferor to the Purchaser, the
Bank Investors, or the Agent at such time.
"Agreement Documents" means this Agreement, the Purchase and Sale
Agreement, the Receivables Purchase Agreement, the Certificate of
Assignments and the other documents to be executed and delivered in
connection herewith.
"Aggregate Purchaser's Investments" means, at any time, with
respect to the Purchaser or the Bank Investors, as the case may be, the sum
of the Dollar amount of all of the Purchaser's Investments.
"Aggregate Purchaser's Share" shall have the meaning set forth in
Section 2.5.
"Aggregate Required Allocations" at any time means the sum of all
Required Allocations of all Undivided Interests.
"Aggregate Unpaid Balance" has the meaning set forth in Section
2.1 of the Purchase and Sale Agreement.
"Alternate Reference Rate" has the meaning set forth in Appendix
B.
"Assignment Amount" with respect to a Bank Investor shall mean at
any time an amount equal to the lesser of (i) such Bank Investor's Pro Rata
portion of the Aggregate Purchaser's Investment at such time and (ii) such
Bank Investor's pro rata portion of the aggregate Unpaid Balance of the
Eligible Receivables in the Receivables Pool and (iii) such Bank Investor's
unused Commitment.
"Assignment and Assumption Agreement" means an Assignment and
Assumption Agreement substantially in the form of Schedule 13.5(b) attached
hereto.
"Average Maturity" has the meaning set forth in Appendix B.
"Bank Commitment" means (i) with respect to each Bank Investor party
hereto, the commitment of such Bank Investor to make acquisitions from the
Transferor or the Purchaser in accordance herewith in an amount not to exceed
the dollar amount set forth opposite such Bank Investor's signature on the
signature page hereto under the heading "Commitment", minus the dollar amount of
any Commitment or portion thereof assigned pursuant to an Assignment and
Assumption Agreement plus the dollar amount of any increase to such Bank
Investor's Commitment consented to by such Bank Investor prior to the time of
determination, (ii) with respect to any assignee of a Bank Investor
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party hereto taking pursuant to an Assignment and Assumption Agreement, the
commitment of such assignee to make acquisitions from the Transferor or the
Purchaser not to exceed the amount set forth in such Assignment and
Assumption Agreement minus the dollar amount of any Commitment or portion
thereof assigned pursuant to an Assignment and Assumption Agreement prior
to such time of determination and (iii) with respect to any assignee of an
assignee referred to in clause (ii), the commitment of such assignee to
make acquisitions from the Transferor or the Purchaser not to exceed the
amount set forth in an Assignment and Assumption Agreement between such
assignee and its assign.
"Bank Rate" has the meaning set forth in Appendix B.
"Business Day" means a day on which both (a) Bank of America at
its office in Charlotte, North Carolina is open for business and (b)
commercial banks in New York City are not authorized or required to be
closed for business.
"Certificate of Assignments" means each certificate of assignment,
by the Transferor to a Purchaser, in the form of Schedule 5.1(a),
evidencing an Undivided Interest.
"Collection Account" shall have the meaning set forth in Section
3.3(e).
"Collections" means, with respect to any Receivable, all funds
which either (a) are received by the Transferor, any Originator or Servicer
from or on behalf of the related Obligors in payment of any amounts owed
(including, without limitation, purchase prices, finance charges, interest
and all other charges) in respect of such Receivable, or applied to such
amounts owed by such Obligors (including, without limitation, insurance
payments that the Transferor, each Originator or Servicer applies in the
ordinary course of its business to amounts owed in respect of such
Receivable and net proceeds of sale or other disposition repossessed goods
or other collateral or property of the Obligor or any other party directly
or indirectly liable for payment of such Receivable and available to be
applied thereon), or (b) are deemed to have been received by the
Transferor, any Originator or any other Person as a Collection pursuant to
Section 3.3; provided that, prior to such time as Wackenhut shall cease to
be Servicer, late payment charges, collection fees and extension fees shall
not be deemed to be Collections.
"Commercial Paper Notes" means short-term promissory notes issued
or to be issued by the Purchaser to fund its investments in accounts
receivable or other financial assets.
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"Commercial Paper Rate" has the meaning set forth in Appendix B.
"Commitment" has the meaning set forth in Section 1.1.
"Commitment Termination Date" has the meaning set forth in Section
1.5(a).
"Concentration Limit" has the meaning set forth in Section 2.3(b).
"Conditions Precedent" has the meaning set forth in Section 5.2.
"Conduit Assignee" shall mean any commercial paper conduit
administered by Bank of America and designated by Bank of America from time
to time to accept an assignment from the Purchaser of all or a portion of
the Purchaser's Investment.
"Contract" means any writing evidencing a Receivable.
"Credit and Collection Policy" shall mean the Servicer's credit
and collection policy or policies and practices, relating to Contracts and
Receivables existing on the date hereof and referred to in Section 8.2(a)
and described in Schedule A-1, and as modified from time to time in
compliance with Section 7.3(c).
"Defaulted Receivable" means, without duplication, a Receivable:
(a) as to which any payment, or part thereof, remains unpaid for 120 days
from the original invoice date for such Receivable, (b) with regard to
which an Event of Bankruptcy has occurred and remains continuing, (c) as to
which payments have been extended, or the terms of payment thereof
rewritten, or (d) which consistent with the Credit and Collection Policy,
would be fully reserved against or required to be sent to attorneys or
collection agencies or would be charged-off the Transferor's or Servicer's
books as uncollectible.
"Delinquent Receivable" means a Receivable that is not a Defaulted
Receivable and: (a) as to which any payment, or part thereof, remains
unpaid for 60 days or more from the original invoice date for such
Receivable; or (b) which, consistent with the Credit and Collection Policy,
would be classified as delinquent by the Transferor.
"Designated Obligor" means, at any time, all Obligors of the
Transferor except any such Obligor as to which the Agent has, at least
three Business Days prior to the date of determination, given written
notice to the Transferor that such Obligor shall not be considered a
Designated Obligor.
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"Discount Factor" has the meaning set forth in Appendix B.
"Dollars" and the symbol "$" means dollars constituting legal
tender for the payment of public and private debts in the United States of
America.
"Earned Discount" has the meaning set forth in Appendix B.
"Eligible Receivable" means, at any time, a Receivable:
(a) which has been originated by an Originator and sold to
Wackenhut pursuant to (and in accordance with) the Purchase and Sale
Agreement and has been sold by Wackenhut to the Transferor pursuant to (and
in accordance with) the Receivables Purchase Agreement, and to which the
Transferor has good title thereto, free and clear of all adverse claims;
(b) which (together with the Collections), has been the subject of
either a valid transfer and assignment from the Transferor to the Agent, on
behalf of the Purchaser and the Bank Investors, all of the Transferor's
right, title and interest therein or the grant of a first priority security
interest therein (and in the Collections and Related Security) effective
until the termination of this Agreement;
(c) with regard to which the related service has been rendered and
all other obligations performed by the Transferor or an Originator (except
as permitted by Schedule 2.3(b)), as applicable, and which is generated by
the Transferor and the applicable Originator in the ordinary course of
their respective business of providing Services and is required to be paid
in full by the related Obligor within 60 days of the billing thereof;
(d) which, (i) if the perfection of the Agent's, on behalf of the
Purchaser and the Bank Investors, undivided ownership interest therein is
governed by the laws of a jurisdiction where the Uniform Commercial Code --
Secured Transactions is in force, constitutes an account or general
intangible as defined in the Uniform Commercial Code as in effect in such
jurisdiction, and (ii) if the perfection of the Agent's undivided ownership
interest therein is governed by the law of any jurisdiction where the
Uniform Commercial Code -- Secured Transactions is not in force, the
Transferor has furnished to the Agent such opinions of counsel and other
evidence as has reasonably been requested, establishing to the reasonable
satisfaction of the Agent that the Agent's undivided ownership interest and
other rights with respect thereto are not significantly less protected and
favorable than such rights under the Uniform Commercial code;
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(e) which is a domestic Receivable, the Obligor of which is a
United States resident, and is not an Affiliate of any of the Transferor
or, the Servicer or any other party hereto (other than Bank of America);
(f) the Obligor of which is a Designated Obligor;
(g) the Obligor of which is not the private sector Obligor of
Defaulted Receivables aggregating more than 15% of such Obligor's total
obligations to the Transferor and each Originator;
(h) which is not a Defaulted Receivable;
(i) with regard to which the warranty of the Transferor in Section
6.1(l) is true and correct;
(j)(x) the sale of an undivided interest in which does not require
the consent of or notice to the related Obligor under the related Contract
and does not contravene or conflict with any law, and (y) in the case of
Receivables generated by an Originator, the sale of which to the Transferor
does not contravene or conflict with any law;
(k) which is an account receivable representing all or part of the
sales price of merchandise, insurance and services within the meaning of
Section 3(c)(5) of the Investment Company Act of 1940, as amended;
(l) which arises out of a current transaction, or the proceeds of
which have been or are to be used for current transactions, within the
meaning of Section 3(a)(3) of the Securities Act of 1933, as amended;
(m) which is denominated and payable only in Dollars in the United
States;
(n) which arises under a Contract that has been duly authorized
and that, together with such Receivable, is in full force and effect and
constitutes the legal, valid and binding obligation of the Obligor of such
Receivable enforceable against such Obligor in accordance with its terms
and is not subject to any dispute, offset, counterclaim or defense
whatsoever (except the discharge in bankruptcy of such Obligor);
(o) which, together with the Contract related thereto, does not
contravene in any material respect any laws, rules or regulations
applicable thereto (including, without limitation, laws, rules and
regulations relating to usury, truth in lending, fair credit billing,
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fair credit reporting, equal credit opportunity, fair debt collection
practices and privacy) and with respect to which no party to the Contract
related thereto is in violation of any such law, rule or regulation in any
material respect if such violation would impair the collectibility of such
Receivable;
(p) which (i) satisfies all applicable requirements of the Credit
and Collection Policy and (ii) complies with such other criteria and
requirements (other than those relating to the collectibility of such
Receivable) as the Agents may from time to time specify to the Transferor
following thirty days, notice;
(q) as to which the Agent has not notified the Transferor that the
Agent has determined, in its sole discretion, that such Receivable (or
class of Receivables) is not acceptable for purchase hereunder;
(r) which, if originated by Wackenhut, was originated in The
Wackenhut Corporation or Wackenhut Airline Services, Inc.;
(s) which does not include any amount payable for sales taxes,
Payroll taxes or any other tax; and
(t) the related Obligor of which is not, directly or indirectly,
an Affiliate of the Transferor or any Originator.
"Enterprise Credit Support Agreement" means any agreement between
Enterprise and the Enterprise Credit Support Provider evidencing the
obligation of the Enterprise Credit Support Provider to provide credit
support to Enterprise in connection with the issuance by Enterprise of
Commercial Paper.
"Enterprise Credit Support Provider" means any Person or Persons
who are providing or will provide credit support to Enterprise in
connection with the issuance by Enterprise of Commercial Paper Notes,
together with the successors and assigns of any such Person or Persons.
"Enterprise Liquidity Agreement" means any agreement between
Enterprise and the Enterprise Liquidity Provider evidencing the obligation
of the Liquidity Provider to provide liquidity support to Enterprise in
connection with the issuance by Enterprise of Commercial Paper Notes, as
such agreement may be modified, amended, supplemented or restated from time
to time.
"Enterprise Liquidity Provider" means any Person or Persons who
are providing or will provide liquidity support to Enterprise in connection
with the issuance by Enterprise of Commercial Paper Notes,
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together with the successors and assigns of any such Person or Persons.
"ERISA" means the U.S. Employee Retirement Income Security Act of
1974, as amended from time to time.
"Eurodollar Rate (Reserve Adjusted)" has the meaning set forth in
Appendix B.
"Eurodollar Rate" means the interest rate per annum calculated
according to the following formula:
Eurodollar = Interbank Offered Rate + Applicable
Rate 1 - Applicable Reserve Requirement Margin
"Event of Bankruptcy" shall be deemed to have occurred with
respect to a Person if either:
(a) a case or other proceeding shall be commenced, without the
application or consent of such Person, in any court, seeking the
liquidation, reorganization, debt arrangement, dissolution,
winding up, or composition or readjustment of debts of such
Person, the appointment of a trustee, receiver, custodian,
liquidator, assignee, sequestrator or the like for such Person or
all or substantially all of its assets, or any similar action with
respect to such Person under any law relating to bankruptcy,
insolvency, reorganization, winding up or composition or
adjustment of debts, and such case or proceeding shall continue
undismissed, or unstayed and in effect, for a period of 60
consecutive days; or an order for relief in respect of such Person
shall be entered in an involuntary case under the federal
bankruptcy laws or other similar laws now or hereafter in effect;
or
(b) such Person shall commence a voluntary case or other
proceeding under any applicable bankruptcy, insolvency,
reorganization, debt arrangement, dissolution or other similar law
now or hereafter in effect, or shall consent to the appointment of
or taking possession by a receiver, liquidator, assignee, trustee,
custodian, sequestrator (or other similar official) for, such
Person or for any substantial part of its property, or shall make
any general assignment for the benefit of creditors, or shall fail
to, or admit in writing its inability to, pay its Debts generally
as they become due, or, if a corporation or similar entity, its
board of directors shall vote to implement any of the foregoing.
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"Facility" has the meaning set forth in Section 1.1 of the
Purchase and Sale Agreement.
"Facility Fee" has the meaning set forth in the Fee Letter.
"Facility Limit" means an amount equal to $76,500,000.
"Federal Reserve Board" means the Board of Governors of the
Federal Reserve System, or any successor thereto or to the functions
thereof.
"Fee Letters" has the meaning set forth in Section 4.1(a).
"GAAP" or "Generally Accepted Accounting Principles" means
generally accepted accounting principles, being those principles of
accounting set forth in pronouncements of the Financial Accounting
Standards Board, the American Institute of Certified Public Accountants
or which have other substantial authoritative support and are applicable in
the circumstances as of the date of a report.
"Government Obligor" means a department, agency, bureau, division
or instrumentality of the United States of America or any state thereof or
the District of Columbia or any county or municipal government chartered or
otherwise existing by authority of any of the foregoing, or any department,
agency, bureau, division or instrumentality thereof obligated to make
payments with respect to a Receivable.
"Gross Revenues" for any period means the gross revenues,
determined in accordance with generally accepted accounting principles, of
Wackenhut and its Subsidiaries for such period, determined on a
consolidated basis after eliminating revenues attributable to outstanding
Minority Interests.
"Headquarters" shall mean the Transferor's office located at ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇. ▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇.
"Indemnified Amounts" has the meaning set forth in Section 14.1.
"Indemnified Party" has the meaning set forth in Section 14.1.
"Initial Purchaser" means the Transferor as Initial Purchaser
under the Purchase and Sale Agreement.
"Information" has the meaning set forth in Section 15.7.
"Information Provider" has the meaning set forth in Section 15.7.
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"Interest Component" shall mean, (i) with respect to any Related
Commercial Paper issued on an interest-bearing basis, the interest payable
on such Related Commercial Paper at its maturity and (ii) with respect to
any Related Commercial Paper issued on a discount basis, the portion of the
face amount of such Related Commercial Paper representing the discount
incurred in respect thereof (including any dealer commissions to the extent
included as part of such discount).
"Investments" means all investments, in cash or by delivery of
Property made, directly or indirectly in any Person, whether by acquisition
of shares of capital stock, indebtedness or other obligations or Security
or by loan, advance, capital contribution or otherwise; provided, however,
that "Investments" shall not mean or include routine investments in
Property to be used or consumed in the ordinary course of business or
investments in accounts receivable or notes receivable arising in the
ordinary course of business.
In valuing any investments for the purpose of applying the limitations
set forth in this Agreement, such investments, loans and advances shall be taken
at the original cost thereof, without allowance for any subsequent write-offs or
appreciation or depreciation therein, but less any amount repaid or recovered on
account of capital or principal. For purposes of this Agreement, at any time
when a corporation becomes a Subsidiary, all Investments of such corporation at
such time shall be deemed to have been made by such corporation, as a
Subsidiary, at such time.
"Involuntary Federal Proceeding" has the meaning set forth in
Section 10.2(b).
"Letter of Credit" or "Letters of Credit" shall have the meaning
set forth in the Revolving Credit Agreement.
"Lock-Box Agreement" means a letter agreement, in substantially
the form of Schedule 5.1(h), between the Transferor and any Lock-Box Bank.
"Lock-Box Bank" means any of the banks holding one or more lock-box
accounts for receiving Collections from Pool Receivables.
"Losses" means, at any time, with respect to the Receivables Pool,
the sum of (x) all Receivables theretofore fully reserved against by the
Transferor or Servicer plus (y), without duplication, all Receivables
theretofore sent to attorneys or collection agencies to be collected plus
(z), without duplication, all Receivables theretofore charged-off the
Transferor's or Servicer's books as uncollectible.
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"Losses to Liquidations Ratio" means the percentage that (x)
Losses during the three fiscal month period ending on the most recent Month
End Date on all Pool Receivables owned by the Transferor was of (y)
Collections of such Pool Receivables during such period.
"Loss Reserve Discount" has the meaning set forth in Section 2.1
of the Purchase and Sale Agreement.
"Maximum Purchase Limit" has the meaning set forth in clause (x) of
Section 1.2(a).
"Month End Date" means the last day of each fiscal month.
"Negative Spread Fee" has the meaning set forth in Appendix B.
"Net Pool Balance" has the meaning set forth in Section 2.3(a).
"Note Fee" has the meaning set forth in Section 4.1(e).
"Obligor" means a Person (including any Affiliate of such Person)
obligated to make payments with respect to a Receivable.
"Originator" means, at any time, each Subsidiary of the Seller at
such time a signatory to the Purchase and Sale Agreement.
"Originator Receivable" means the indebtedness owed to any
Originator by any Obligor (without giving effect to any purchase under the
Purchase and Sale Agreement by The Wackenhut Corporation and any purchase
under the Receivables Purchase Agreement by Wackenhut Funding Corporation,
in each case, at any time) under a Contract.
"Periodic Report" means a report in substantially the form of
Schedule 3.4(a).
"Person" means an individual, partnership, corporation (including
a business trust), joint stock company, trust, unincorporated association,
joint venture, limited liability company or limited liability partnership,
government or any agency or political subdivision thereof or any other
entity.
"Pool Receivable" means a Receivable in the Receivables Pool.
"Program Fee" shall have the meaning set forth in the Fee Letter;
provided, however, that if at any time the certificate furnished to the
Agent pursuant to Sections 7.5(a) or (b) hereof shall disclose that
Consolidated Indebtedness exceeds 40% of Consolidated Total Capitalization
and does not exceed 50% of Consolidated Total Capitalization, then 0.25%
shall be added to the Program Fee set forth
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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.
"Property" means any interest in any kind of property or asset,
whether real, personal or mixed, and whether tangible or intangible.
"Purchase" has the meaning set forth in Section 1.1(a).
"Purchase and Sale Agreement" means that certain Amended and
Restated Purchase and Sale Agreement dated as of December 30, 1997 between
the Seller as Initial Purchaser and Wackenhut Airline Services, Inc. and
each other Affiliate of the Seller from time to time a party thereto, as
the same may be amended and otherwise modified from time to time.
"Purchase and Sale Indemnified Amounts" has the meaning set forth
in Section 9.1 of the Purchase and Sale Agreement
"Purchase and Sale Indemnified Parties" has the meaning set forth
in forth in Section 9.1 of the Receivable Purchase Agreement.
"Purchase Limit" has the meaning set forth in Section 1.2(a).
"Purchase Price" has the meaning set forth in Section 2.1 of the
Purchase and Sale Agreement.
"Purchase Termination Date" has the meaning set forth in Section
1.6.
"Purchaser" has the meaning set forth in the preamble.
"Purchaser Rate" has the meaning set forth in Appendix B.
"Purchaser's Investment" has the meaning set forth in Section 2.2.
"Purchaser's Share" has the meaning set forth in Section 2.4.
"Rate Variance Factor" has the meaning set forth in Appendix B.
"Receivable" means (i) the indebtedness owed to any Originator by
any Obligor (without giving effect to any purchase under the Purchase and
Sale Agreement by the Seller at any time) under a Contract and sold by any
such Originator to the Seller pursuant to the Purchase and Sale Agreement
and sold by the Seller to the Transferor pursuant to the Receivables
Purchase Agreement, and (ii) the indebtedness owed to the Seller by any
Obligor (without giving effect
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to any purchase under the Receivables Purchase Agreement by the Transferor at
any time) under a Contract and sold by the Seller to the Transferor pursuant to
the Receivables Purchase Agreement, in each case whether constituting an
account, chattel paper, instrument, investment property or general intangible,
arising in connection with the sale or lease of merchandise or the rendering of
Services by any Originator or the Seller, and includes the right to payment of
any interest or Finance Charges and other obligations of such Obligor with
respect thereto.
"Receivable Purchase Termination Date" has the meaning set forth in
Section 1.4 of the Receivable Purchase Agreement.
"Receivable Purchase Termination Events" has the meaning set forth in
Section 8.1 of the Receivable Purchase Agreement.
"Receivables Pool" means at any time all then outstanding Receivables
which (a) arose from or relate to a Contract, and (b) as to which the Obligors
thereunder are Designated Obligors. If a Receivable is a Pool Receivable on the
day immediately preceding the Commitment Termination Date, such Receivable shall
continue to be considered a Pool Receivable at all times thereafter.
"Receivables Purchase Agreement" means that certain Purchase Agreement
dated as of December 30, 1997, between the Seller and the Transferor, with
respect to the purchase of the Pool Receivables by the Transferor, as the same
may be altered or supplemented from time to time.
"Regulation D" means Regulation D of the Federal Reserve Board, or any
other regulation of the Federal Reserve Board that prescribes reserve
requirements applicable to nonpersonal time deposits or "Eurocurrency
Liabilities" as presently defined in Regulation D, as in effect from time to
time.
"Regulatory Change" means, relative to any Affected Party:
(a) any change in (or the adoption, implementation,
phase-in or commencement of effectiveness of) any:
(i) United States federal or state law or
foreign law applicable to such Affected Party;
(ii) regulation, interpretation, directive,
requirement or request (whether or not having the force
of law) applicable to such Affected Party of (A) any
court, government authority charged with the
interpretation or administration of any law referred in
clause (a)(i) or of
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(3) any fiscal, monetary or other authority having
jurisdiction over such Affected Party; or
(iii) generally accepted accounting principles
or regulatory accounting principles applicable to such
Affected Party and affecting the application to such
Affected Party of any law, regulation, interpretation,
clause (a)(i) or (a)(ii) above; or
(b) any change in the application to such Affected Party of
any existing law, regulation, interpretation, directive, requirement,
request or accounting principles referred to in clause (a)(i), (a)(ii)
or (a)(iii) above.
"Reinvestment" has the meaning set forth in Section 1.01(b).
"Reinvestment Termination Date" means the second Business Day after the
delivery by the Purchaser to the Transferor of written notice that the Purchaser
elects to commence the amortization of its Purchaser's Investment or otherwise
liquidate its interest in the Receivables Pool.
"Related Commercial Paper" shall mean Commercial Paper issued by the
Purchaser the proceeds of which were used to acquire, or refinance the
acquisition of, an interest in Receivables with respect to the Transferor.
"Related Security" means, with respect to any Receivable, Seller
Receivable, or Originator Receivable, as the case may be: (a) all of the
Transferor's right, title and interest in and to all Contracts or other
agreements that relate to such Receivable; (b) all of the Transferor's interest
in the merchandise (including returned merchandise), if any, relating to the
sale which gave rise to such Receivable; (c) all other security interests or
liens and property subject thereto from time to time purporting to secure
payment of such Receivable, whether pursuant to the Contract related to such
Receivable or otherwise; (d) the assignment to any Agent, for the benefit of
Purchaser and any assignee, of all UCC financing statements covering any
collateral securing payment of such Receivable (but such assignment is made only
to the extent of the interest of the Purchaser in the respective Receivable);
and (e) all guarantees and other agreements or arrangements of whatever
character from time to time supporting or securing payment of such Receivable
whether pursuant to the Contract related to such Receivable or otherwise. The
interest of the Purchaser in any Related Security is only to the extent of the
Purchaser's Undivided interest, as more fully described in the definition of an
Undivided Interest.
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"Remaining Collections" has the meaning set forth in Section
3.1(a)(ii).
"Required Allocations" has the meaning set forth in Section 2.1.
"Required Allocations Limit" has the meaning set forth in Section
1.2(b).
"Reserve Percentage" has the meaning set forth in Appendix B.
"Revolving Credit Agreement" shall mean that certain Credit Agreement,
dated as of November 13, 2000, as amended by Amendment No. 1 thereto, dated as
of December 12, 2000 (without giving effect to any further amendments thereto),
by and among the Servicer, Bank of America, Scotiabanc Inc., First Union
National Bank and certain other lenders.
"Run Off Day" for any Undivided Interest means any of (a) each day
which occurs on or after the date designated by any Agent to the Transferor to
be the "Run Off Commencement Date", provided such date is designated on at least
one Business Day's notice during a time when any of the conditions set forth in
Section 5.2 are not satisfied, and on or before the date, if any, designated by
the Agent in its sole discretion on at least one Business Day's notice to the
Transferor as the "Run Off Termination Date", and (b) each day which occurs on
or after the Termination Date for such Undivided Interest.
"Run Off Discount" has the meaning set forth in Appendix B.
"Run Off Period" means one or more successive Run Off Days.
"Run Off Servicer's Fee" has the meaning set forth in Appendix B.
"Scheduled Commitment Termination Date" has the meaning set forth in
Section 1.2(a).
"Security" shall have the same meaning as in Section 2(l) of the
Securities Act of 1933, as amended.
"Seller Receivables" means (i) the indebtedness owed to any Originator
by any Obligor (without giving effect to any purchase under the Purchase and
Sale Agreement by The Wackenhut Corporation and any purchase under the
Receivables Purchase Agreement by Wackenhut Funding Corporation, in each case,
at any time) under a Contract and sold by any such Originator to The Wackenhut
Corporation pursuant to the Purchase and Sale Agreement, and (ii) the
indebtedness owed to The Wackenhut Corporation by any Obligor (without giving
effect to any
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purchase under the Receivables Purchase Agreement by Wackenhut Funding
Corporation, at any time) under a Contract, in each case, and sold by The
Wackenhut Corporation to Wackenhut Funding Corporation pursuant to the
Receivables Purchase Agreement, in each case whether constituting an account,
chattel paper, instrument, investment property or general intangible, arising in
connection with the sale or lease of merchandise or the rendering of Services by
any Originator or the Wackenhut Corporation, and includes the right to payment
of any interest or Finance Charges and other obligations of such Obligor with
respect thereto.
"Servicer" initially means The Wackenhut Corporation, and thereafter
the Person determined pursuant to Section 8.1(a).
"Servicer Transfer Event" has the meaning set forth in Section 8.01(b).
"Servicer's Fee", has the meaning set forth in Appendix B.
"Servicer's Fee Reserve" has the meaning set forth in Appendix B.
"Services" means (i) security related services (including, without
limitation, physical security, investigations, transit security, nuclear site
security, emergency protection and similar services) and (ii) corrections
related services (including, without limitation, correctional facility guard,
food and similar services).
"Settlement Date" means the last day of each Settlement Period.
"Settlement Period" for any Undivided Interest means
(a) each period commencing on the first day of each Yield
Period for such Undivided Interest and ending on the last day of
such Yield Period; and
(b) on and after the Termination Date for such Undivided
Interest, such period (including, without limitation, a daily
period) as shall be selected from time to time by the Agent or, in
absence of any such selection, each period of thirty days from the
next preceding Settlement Date;
provided, however, that
(i) with respect to any Yield Period of one day (as
described in clause (ii) of the proviso of the definition of
"Yield Period"), the related Settlement Period shall be the first
day following such Yield Period;
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(ii) any Settlement Period which would otherwise end on a
day which is not a Business Day shall be extended to the next
succeeding Business Day; and
(iii) the last Settlement Period shall end on the date on
which all Undivided Interests have been reduced to zero.
"Solvent" shall mean, when used with respect to any Person, that at the
time of determination: (i) the fair value of its assets (both at fair valuation
and present fair saleable value) is in excess of the total amount of its
liabilities, including, without limitation, contingent liabilities; (ii) it is
then able and expects to be able to pay its debts as they mature; and (iii) it
has capital sufficient to carry on its business as conducted and as proposed to
be conducted.
"Special Concentration Limit" has the meaning set forth in Section
2.3(c).
"Step-Up Fee" has the meaning set forth in the definition of "Program
Fee."
"Successor Notice" has the meaning set forth in Section 8.1(b).
"Termination Date" for any Undivided Interest means the Commitment
Termination Date.
"Termination Event" has the meaning set forth in Section 10.1.
"Three-Month Default Ratio" means the ratio (expressed as a percentage)
computed as of any Month End Date by dividing (x) the aggregate Unpaid Balance
of all Defaulted Receivables calculated as at each of the three most recent
Month End Dates less Losses (without giving effect to clause (z) of the
definition thereof) at the three preceding fiscal Month End Dates by (y) the
aggregate Unpaid Balance of all Pool Receivables calculated as at each of the
three most recent Month End Dates less Losses (without giving effect to clause
(z) of the definition thereof) at the three most recent fiscal Month End Dates.
"Three-Month Dilution Ratio" means the ratio (expressed as a
percentage) computed as of each Month End Date by dividing (x) the aggregate
reduction in the Unpaid Balance of all Pool Receivables arising from dilutive
credits during the three immediately preceding fiscal months by (y) Collections
of Pool Receivables received during such period.
"Total Capitalization" means the sum of (i) Consolidated Funded Debt
plus (ii) Consolidated Net Worth.
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"Transferor" has the meaning set forth in the preamble.
"Transferor Information" has the meaning set forth in Section 15.8.
"Transferor Information Provider" has the meaning set forth in Section
15.8.
"UCC" means the Uniform Commercial Code as from time to time in effect
in the applicable jurisdiction or jurisdictions.
"Undivided Interest" has the meaning set forth in Section 2.1.
"Unmatured Termination Event" means any event which, with the giving of
notice or lapse of time, or both, would become a Termination Event.
"Unpaid Balance" of any Receivable means at any time the sum of (x) the
unpaid principal amount thereof, plus (y) the unpaid amount of all finance
charges, interest payments and other amounts actually accrued thereon at such
time, but excluding, in the case of clause (y) next above, all late payment
charges, delinquency charges, and extension or collection fees.
"Wackenhut" has the meaning set forth in the preamble.
"Wackenhut Family" means (i) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and other lineal descendants of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, the
founder of Wackenhut; (ii) the spouses and lineal descendants of the persons
named in clause (i); and (iii) the estates or legal representatives of the
persons named in clause (i).
"WCC" means Wackenhut Corrections Corporation, a Florida corporation.
"Yield Period" means with respect to any Undivided Interest (or portion
thereof):
(a) the period commencing on the date of the initial Purchase
of such Undivided Interest (or such portion) and ending such number of
days thereafter (not to exceed 100 days) as the Agent shall select,
after consultation with the Transferor, pursuant to Sections 1.3 or
2.1(b); and
(b) thereafter, each period commencing on the last day of the
immediately preceding Yield Period for such Undivided Interest (or such
portion) and ending such number of days
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thereafter (not to exceed 100 days) as the Agent shall select, after
consultation with the Transferor;
provided, however, that
(i) any such Yield Period (other than a Yield Period
consisting of one day) which would otherwise end on a day that is not a
Business Day shall be extended to the next succeeding Business Day
(unless the related Undivided Interest shall be accruing Earned
Discount at a rate determined by reference to the Eurodollar Rate
(Reserve Adjusted), in which case if such succeeding Business Day is in
a different fiscal month, such Yield Period shall instead be shortened
to the next preceding Business Day);
(ii) in the case of Yield periods of one day for any Undivided
Interest, (A) the Initial Yield Period shall be the day of the related
Purchase; and (B) any subsequently occurring Yield Period which is one
day shall, if the immediately preceding Yield Period is more than one
day, be the last day of such immediately preceding Yield Period, and if
the immediately preceding Yield Period is one day, shall be the next
day following such immediately preceding Yield Period.
The "related" Yield Period for any Undivided Interest at any time means the
Yield Period pursuant to which Earned Discount is then accruing for such
Undivided Interest.
B. Other Terms. All accounting terms not specifically defined herein
shall be construed in accordance with generally accepted accounting principles.
All terms used in Article 9 of the UCC in the State of New York, and not
specifically defined herein, are used herein as defined in such Article 9.
C. Computation of Time Periods. Unless otherwise stated in this
Agreement, in the computation of a period of time from a specified date to a
later specified date, the word "from" means "from and including" and the words
"to" and "until" each means "to but excluding".
A-19
▇▇▇
▇▇▇▇▇▇▇▇ ▇
CALCULATION OF DISCOUNT AND RESERVE
This is Appendix B to the Amended and Restated Transfer and
Administration Agreement dated as of January 26, 2001 among Wackenhut Funding
Corporation, The Wackenhut Corporation, Enterprise Funding Corporation and Bank
of America, N.A., as Agent and the Bank Investors (as amended, supplemented or
otherwise modified from time to time, the "Agreement"). Capitalized terms used
in this Appendix B without definition have the meanings assigned to such terms
in Appendix A to the Agreement or in the Revolving Credit Agreement. Each
reference in this Appendix B to any Section refers to such Section of the
Agreement. Each reference in this Appendix B to any Part refers to the part of
this Appendix B so designated.
PART I
DISCOUNT FACTOR
Sub-
Part Term Page No.
---- ---- --------
A. Discount Factor.............................. B-2
B. Earned Discount.............................. B-3
C. Negative Spread Fee.......................... B-3
D. Run Off Discount............................. B-3
E. Rate Definitions............................. B-4
Alternate Reference Rate................. B-4
Applicable Eurodollar Spread............. B-5
Bank Rate................................ B-5
Commercial Paper Rate.................... B-5
Domestic CD Rate......................... B-6
Assessment Rate.......................... B-6
Reserve Requirement...................... B-7
Eurodollar Rate (Reserve Adjusted)....... B-6
Purchaser Rate........................... B-6
F. Rate Variance Factor......................... B-7
B-1
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PART II
LOSS RESERVE; DILUTION RESERVE
Sub-
Part Term Page No.
---- ---- --------
A. Loss Reserve B-10.............................................. B-7
B. Reserve Percentage............................................. B-8
C. Dilution Reserve............................................... B-8
PART III
SERVICER'S FEE RESERVE
A. Servicer's Fee Reserve......................................... B-8
B. Servicer's Fee................................................. B-9
C. Run Off Servicer's Fee......................................... B-9
PART IV
ADJUSTED AVERAGE MATURITY
A. Adjusted Average Maturity...................................... B-9
B. Average Maturity............................................... B-10
PART I
DISCOUNT FACTOR
A. Discount Factor. The "Discount Factor" for a related Undivided
Interest at any time in a Yield Period means an amount determined as follows:
DF = ED + ROD
where:
DF = the Discount Factor of such Undivided Interest at such
time;
ED = Earned Discount of such Undivided Interest accrued and
unpaid at such time, as determined pursuant to Part I.B;
ROD = Run Off Discount of such Undivided Interest at such time,
as determined pursuant to Part I.D.
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B. Earned Discount. The "Earned Discount" for any Undivided Interest
for each day in a related Yield Period means an amount determined as follows:
ED = [PI x (PR + PF) x 1/360] + NSF (if any);
ED = Earned Discount of such Undivided Interest (or such portion)
accrued on such day;
PI = the Purchaser's Investment of such Undivided Interest (or such
portion) on such day, as determined pursuant to Section 2.2;
PR = the Purchaser Rate for such Undivided Interest (or such
portion) on such day, as defined in Part I.E.;
PF = the Program Fee consisting of the fee as calculated pursuant
to the Fee Letters; and
NSF = the Negative Spread Fee for such Undivided Interest or such
portion thereof) on such day, as defined in Part C.
No provision of the Agreement shall require the payment or permit the collection
of Earned Discount in excess of the maximum permitted by applicable law. Earned
Discount for any Undivided Interest shall not be considered paid by any
distribution if at any time such distribution is rescinded or must otherwise
be returned for any reason.
C. Negative Spread Fee. The "Negative Spread Fee" means, for each
Undivided Interest (or portion thereof) for each day in any Yield Period during
which any Run Off Day or Termination Date for such Undivided Interest occurs,
the amount, if any, by which;
(i) the additional Earned Discount (calculated without taking
into account any Negative Spread Fee) which would have accrued on the
reductions of the related Purchaser's Investment of such Undivided
Interest (or such portion) during such Yield Period (as so computed) if
such reductions had remained as Purchaser's Investment exceeds,
(ii) the income, if any, received by the owner of such
Undivided Interest (or such portion) from such owner's investing the
proceeds of such reductions of Purchaser's Investment.
D. Run Off Discount. The "Run Off Discount" for the related Undivided
Interest at any time means an amount determined as follows:
▇-▇
▇▇▇
▇▇▇ = PI x (PR + RVF) x AAM
---------------------
360
where:
ROD = the Run Off Discount for such Undivided Interest at such time;
PI = the Purchaser's Investment of such Undivided Interest at such
time;
PR = the Purchaser Rate for such Undivided Interest for a Yield
Period deemed to commence at such time pursuant to Part I.E;
AAM = the Adjusted Average Maturity of the Receivables Pool related to
such Undivided Interest, as determined pursuant to Part V; and
RVF = the Rate Variance Factor deemed to be in effect at such time, as
determined pursuant to Part I.F.
E. Rate Definitions. The "Alternate Reference Rate" means, on any date,
a fluctuating rate of interest per annum equal to the higher of
(a) the rate of interest most recently announced by Bank of America
at its office in Charlotte, North Carolina as its reference rates from
time to time, changing when and as said reference rates change (such
reference rates are not necessarily the lowest or best rate charged by
Bank of America) and
(b) the Federal Funds Rate (as defined below) most recently
determined by Bank of America plus .5% per annum.
For purposes of this definition, "Federal Funds Rate" means, for any period, a
fluctuating interest rate per annum equal (for each day during such period) to
(i) the weighted average of the rates on overnight federal funds
transactions with members of the Federal Reserve System arranged by
federal funds brokers, as published for such day (or, if such day is
not a Business Day, for the next preceding Business Day) by the Federal
Reserve Bank of New York; or
(ii) if such rate is not so published for any day which is a
Business Day, the average of the quotations for such day on
B-4
116
such transactions received by Bank of America from three federal funds
brokers of recognized standing selected by it.
The Alternate Reference Rate is not necessarily intended to be the lowest rate
of interest determined by BofA or Bank of America in connection with extensions
of credit.
"Applicable Eurodollar Spread" The sum of (i) the Applicable Facility
Fee and (ii) the Applicable Margin on Eurodollar Rate Loans, in each case as
defined in the Revolving Credit Agreement.
"Bank Rate" for any Yield Period for the related Undivided Interest of
any Purchaser or Bank Investor, as the case may be, means an interest rate per
annum equal to the sum of (a) .25% per annum, plus (b) the amount of the
Applicable Eurodollar Spread, plus (c) the Eurodollar Rate (Reserve Adjusted) of
such Purchaser for such Yield Period, that if (i) it shall become unlawful for
the Agent, any Enterprise Liquidity Provider or Enterprise Credit Support
Provider to obtain funds in the London interbank eurodollar market in order to
fund any Purchase or to maintain any Undivided Interest, or if such funds shall
not be reasonably available to the Agent, Enterprise Liquidity Provider or
Enterprise Credit Support Provider or (ii) there shall not be time prior to the
commencement of an applicable Yield Period to determine a Eurodollar Rate in
accordance with its terms, then the "Bank Rate" for any Yield Period for such
Undivided Interest shall be a rate equal to the Alternate Reference Rate.
"Commercial Paper Rate" for any Yield Period for the related Undivided
Interest means a rate per annum equal to the sum of (i) the rate or, if more
than one rate, the weighted average of the rates, determined by converting to an
interest-bearing equivalent rate per annum the discount rate (or rates) at which
Commercial Paper Notes having a term equal to such Yield Period and to be issued
to fund the Purchase of or to maintain such Undivided Interest by the Purchaser
purchasing such Undivided Interest (including, without limitation, Purchaser's
Investment and accrued and unpaid Earned Discount) may be sold by any placement
agent or commercial paper dealer selected by the Agent, as agreed between each
such dealer and the Agent, plus (ii) the greater of (A) the commissions and
charges charged by such placement agent or commercial paper dealer with respect
to such Commercial Paper Notes and (B) the Dealer Fee as described in the Fee
Letter.
"Eurodollar Rate (Reserve Adjusted)" means, with respect to Undivided
Interests owned or otherwise funded by Bank of America, Enterprise, any
Enterprise Liquidity Provider or any Enterprise Credit Support Provider and with
respect to any Yield Period for any related Undivided Interest (or portion
thereof), a rate per annum (rounded upwards, if necessary, to the nearest 1/100
of it) of (A) the rate
B-5
117
obtained by dividing (i) the applicable LIBO Rate by (ii) a percentage equal to
100% minus the reserve percentage used for determining the maximum reserve
requirement as specified in Regulation D (including without limitation any
marginal, emergency, supplemental, special or other reserves) that is applicable
to the Enterprise Liquidity Provider during such Yield Period in respect of
eurocurrency or eurodollar funding, lending or liabilities (or, if more than one
percentage shall be so applicable, the daily average of such percentage for
those days in such Yield Period during which any such percentage shall be
applicable) plus (B) the then daily net annual assessment rate (rounded upwards,
if necessary, to the nearest 1/100 of 1%) as estimated by the Enterprise
Liquidity Provider for determining the current annual assessment payable by the
Liquidity Provider to the FDIC in respect of eurocurrency or eurodollar funding,
lending or liabilities;
where:
"LIBO Rate" means, with respect to any Yield Period, the rate
at which deposits in dollars are offered to Bank of America,
the Enterprise Liquidity Provider or the Enterprise Credit
Support Provider in the London interbank market at
approximately 11:00 a.m. (London time) two Enterprise
Eurodollar Business Days before the first day of such Yield
Period in an amount approximately equal to the Purchaser's
Investment for a related Undivided Interest to which the
Eurodollar Rate (Reserve Adjusted) is to apply and for a
period of time approximately equal to the applicable Yield
Period.
"Purchaser Rate" for any Yield Period for any related Undivided
Interest (or portion thereof) of any Purchaser means:
(a) in the case of an Undivided Interest (or portion thereof) of
any Purchaser other than one referred to in clause (b) of this
definition, the Commercial Paper Rate of such Purchaser for such
Undivided Interest (or such portion) for such Yield Period; and
(b) in the case of an Undivided Interest (or portion thereof) owned
or funded by a Bank Investor, an Enterprise Liquidity Provider or an
Enterprise Credit Support Provider, the Bank Rate of such Purchaser for
such Undivided Interest (or such portion) for such Yield Period;
provided, however, that on any day when any Termination Event or Unmatured
Termination Event shall have occurred and be continuing, the
B-6
118
Purchaser Rate shall mean a rate per annum equal to the Alternate Reference Rate
in effect on such day plus 2% per annum.
"Reserve Requirement" means, for purposes of this definition and with respect to
any Yield Period, a percentage (expressed as a decimal) equal to the daily
average during such Yield Period of the aggregate reserve requirement (including
all basic, supplemental, marginal and other reserves and taking into account any
transitional adjustments or other Scheduled changes in reserve requirements
during such period) specified under Regulation D, as applicable to the class of
banks of which Bank of America is a member, on deposits of the types used as a
reference in determining the Domestic CD Rate and having a maturity
approximately equal to such Yield Period.
F. Rate Variance Factor. The "Rate Variance Factor" means, during any
Yield Period, such percentage per annum not exceeding 2% as the Agent may
designate from time to time in its sole discretion.
PART II
LOSS RESERVE
A. Loss Reserve. The "Loss Reserve" of any Undivided Interest
on any day means the greater of (x) $3,750,000 and (y) an amount
determined as follows:
LR = RP x (PI + DF)
where:
LR = the Loss Reserve of such Undivided Interest on such day;
RP = the Reserve Percentage at the close of business of Purchaser on
such day, as determined pursuant to Part II.B;
PI = the related Purchaser's Investment of such Undivided Interest at
the opening of business of Purchaser on such day, as determined
pursuant to Section 1.3; and
DF = the Discount Factor of such Undivided Interest at the close of
business of Purchaser on such day, as determined pursuant to
Part I.A.
B. Reserve Percentage. The "Reserve Percentage" means, for the related
Undivided Interest on any day, the greatest of (i) three times
B-7
119
the most recent Three-Month Default Ratio, (ii) 1.5 times the percentage that
the largest Special Concentration Limit set forth on Schedule 2.3(b) bears to
the then Aggregate Unpaid Balance of Eligible Receivables and (iii) 10%.
C. Dilution Reserve. The "Dilution Reserve" for the related Undivided
Interest on any day means an amount equal to the product of (x) the related
Purchaser's Investment of such Undivided Interest at the close of business of
Purchaser on such day, as determined pursuant to Section 1.3 and (y) the greater
of (i) 2% and (ii) 1.5 times the highest Three-Month Dilutions Ratio calculated
on the Month End Date for each of the six fiscal months preceding or ending on
such day.
PART III
SERVICER'S FEE RESERVE
A. Servicer's Fee Reserve. The "Servicer's Fee Reserve" for the related
Undivided Interest at any time means an amount determined as follows:
SFR = SF + ROSF
where:
SFR = the Servicer's Fee Reserve for such Undivided Interest at
any time;
SF = the unpaid Servicer's Fee relating to such Undivided Interest
accrued to such time and unpaid as determined pursuant to
Part III B;
and
ROSF = the Run Off Servicer's Fee for such Undivided interest at
such time, as determined pursuant to Part III.C.
B. Servicer's Fee. The "Servicer's Fee" relating to any Undivided Interest
accrued for any day means
(i) an amount equal to (x) .50% per annum, times (y) the amount of
the related Purchaser's Investment at the close of business on such
day, times (z) 1/360; or
(ii) on and after Servicer's reasonable request made at any time
when the Transferor shall no longer be Servicer, an alternative amount
specified by Servicer not exceeding (x) 110% of Servicer's cost and
expenses of
B-8
120
performing its obligations under the Agreement during the Yield Period
when such day occurs, divided by (y) the number of days in such Yield
Period.
C. Run Off Servicer's Fee. The "Run Off Servicer's Fee" for any
Undivided Interest at any time means an amount equal to
(x) the related Purchaser's Investment at such time, times
(y) (A) the percentage per annum set forth in clause (i) (x)
of the definition of "Servicer's Fee", or (B) if Servicer's Fee is
calculated pursuant to clause (ii) of such definition, the percentage
per annum determined for each day by dividing the amount of the
Servicer's Fee accrued for such day by the related Purchaser's
Investment at the close of business on such day, multiplying the
quotient by 360 and expressing the product as a percentage, times
(z) a fraction, the numerator of which is the number of days
equal to the then Adjusted Average Maturity, and the denominator of
which is 360 days.
PART IV
ADJUSTED AVERAGE MATURITY
"Adjusted Average Maturity" means, on any day, the product of (i) 2 times
(ii) the Average Maturity for such day.
"Average Maturity" means, on any day, that time period (expressed in days)
equal to the weighted average maturity of the Pool Receivables as shall be
calculated by Servicer, as set forth in the most recent Periodic Report in
accordance with the provisions thereof. If the Agent shall disagree with any
such calculation, the Agent may recalculate the Average Maturity for such day,
which calculation shall, absent manifest error, be binding upon Servicer, the
Transferor and Purchaser.
B-9
121
AMENDED AND RESTATED TRANSFER AND
ADMINISTRATION AGREEMENT
Dated as of January 26, 2001
Among
WACKENHUT FUNDING CORPORATION,
as Transferor
and
THE WACKENHUT CORPORATION,
individually and
as Servicer
and
ENTERPRISE FUNDING CORPORATION,
as Purchaser
and
BANK OF AMERICA, N.A.,
as Agent
122
TABLE OF CONTENTS
Page
----
ARTICLE I
THE COMMITMENT ............................................................ 2
SECTION 1.1. Commitment ................................................ 2
SECTION 1.2. Purchase and Reinvestment Limits .......................... 3
SECTION 1.3. Making Purchases from the Transferor ...................... 4
SECTION 1.5. Commitment Termination Date ............................... 4
SECTION 1.6. Purchase Termination Date ................................. 5
SECTION 1.7. Voluntary Termination of Commitment
or Reduction of Maximum Purchase Limit ............................... 5
SECTION 1.8. Limitation of Ownership Interest .......................... 6
SECTION 1.9. Special Undivided Interests ............................... 6
SECTION 1.10. Benefits of Agreement ..................................... 6
ARTICLE II
UNDIVIDED INTEREST AND PURCHASER'S SHARE .................................. 7
SECTION 2.1. Undivided Interest ........................................ 7
SECTION 2.2. Purchaser's Investment .................................... 8
SECTION 2.3. Net Pool-Balance .......................................... 10
SECTION 2.4. Shares .................................................... 11
ARTICLE III
SETTLEMENTS ............................................................... 12
SECTION 3.1. Non-Run Off Settlement Procedures for Collections
(a) Daily Procedure ................................................. 12
SECTION 3.2. Run Off-Settlement Procedures for Collections ............. 13
SECTION 3.3. Special Settlement Procedures: Reduction of
Purchaser's Investment, Etc .......................................... 15
SECTION 3.4. Reporting ................................................. 18
SECTION 3.5. Payments and Computations, Etc ............................ 18
SECTION 3.6. Dividing or Combining Undivided Interests ................. 19
SECTION 3.7. Treatment of Collections and Deemed Collections ........... 20
ARTICLE IV
FEES AND YIELD PROTECTION ................................................. 20
SECTION 4.1. Fees ...................................................... 20
SECTION 4.2. Yield Protection .......................................... 21
123
ARTICLE V
CONDITIONS OF PURCHASES ................................................... 23
SECTION 5.1. Conditions Precedent to Initial Purchase .................. 23
SECTION 5.2. Conditions Precedent to All Purchases and Reinvestments ... 27
SECTION 5.3. Additional Condition Precedent to Purchases ............... 28
ARTICLE VI
REPRESENTATIONS AND WARRANTIES ............................................ 28
SECTION 6.1. Representations and Warranties of the Transferor .......... 28
SECTION 6.2. Representations and Warranties of the Servicer ............ 33
ARTICLE VII
GENERAL COVENANTS OF THE TRANSFEROR AND SERVICER .......................... 38
SECTION 7.1. Affirmative Covenants of the Transferor ................... 38
SECTION 7.2. Reporting Requirements of the Transferor .................. 42
SECTION 7.3. Negative Covenants of the Transferor ...................... 44
SECTION 7.4. Affirmative Covenants of Servicer ......................... 45
SECTION 7.5. Reporting Requirements of Servicer ........................ 48
SECTION 7.6. Negative Covenants of the Servicer ........................ 50
SECTION 7.7. Financial Covenants of the Servicer ....................... 52
ARTICLE VIII
ADMINISTRATION AND COLLECTION ............................................. 53
SECTION 8.1. Designation of Servicer ................................... 53
SECTION 8.2. Successor Notice: Servicer Transfer Event ................. 54
SECTION 8.3. Subcontracts .............................................. 54
SECTION 8.4. Duties of Servicer ........................................ 54
SECTION 8.5. Allocation of Collections; Segregation .................... 55
SECTION 8.6. Modification of Receivables ............................... 55
SECTION 8.7. Documents and Records ..................................... 55
SECTION 8.8. Certain Duties to the Transferor .......................... 56
SECTION 8.9. Lock-Box Accounts ......................................... 56
SECTION 8.10. Rights of the Agent ....................................... 56
SECTION 8.11. Rights on Servicer Transfer Event ......................... 57
SECTION 8.12. Responsibilities of the Transferor ........................ 57
SECTION 8.13. Further Action Evidencing Purchases ....................... 58
SECTION 8.14. Application of Collections ................................ 59
iii
124
ARTICLE IX
SECURITY INTEREST ......................................................... 59
SECTION 9.1. Grant of Security Interest ................................ 59
SECTION 9.2. Further Assurances ........................................ 60
SECTION 9.3. Remedies .................................................. 60
ARTICLE X
[RESERVED] ................................................................ 60
ARTICLE XI
TERMINATION ............................................................... 60
SECTION 11.1. Termination Events ........................................ 60
SECTION 11.2. Remedies .................................................. 63
ARTICLE XII
THE AGENT ................................................................. 64
SECTION 12.1. Authorization and Action .................................. 64
SECTION 12.2. Agents' Reliance, Etc ..................................... 65
SECTION 12.3. Agents and Affiliates ..................................... 65
ARTICLE XIII
BANK COMMITMENT; ASSIGNMENT OF PURCHASER'S INTEREST ....................... 66
SECTION 13.1. Rights as Bank Investor ................................... 66
SECTION 13.2. Indemnification of the Agent .............................. 67
SECTION 13.3. Non-Reliance .............................................. 67
SECTION 13.4. Payments by the Agent ..................................... 68
SECTION 13.5. Bank Commitment; Assignment to Bank Investors ............. 68
SECTION 13.6. Restrictions on Assignments ............................... 72
SECTION 13.7. Rights of Assignee ........................................ 75
SECTION 13.8. Authorization of Agent .................................... 75
SECTION 13.9. Notice of Assignment ...................................... 75
SECTION 13.10. Evidence of Assignment; Endorsement of Certificate ........ 75
SECTION 13.11. Rights of Support Providers ............................... 75
ARTICLE XIV
INDEMNIFICATION ........................................................... 76
SECTION 14.1. Indemnities by the Transferor ............................. 76
SECTION 14.2. Contest of Tax Claim; After-Tax Basis ..................... 79
SECTION 14.3. Contribution .............................................. 79
iv
125
ARTICLE XV
MISCELLANEOUS ............................................................. 79
SECTION 15.1. Amendments, Etc ........................................... 79
SECTION 15.2. Notices, Etc .............................................. 80
SECTION 15.3. No Waiver; Remedies ....................................... 80
SECTION 15.4. Binding Effect; Survival .................................. 81
SECTION 15.5. Costs, Expenses and Taxes ................................. 81
SECTION 15.6. No Proceedings ............................................ 82
SECTION 15.7. Bank of America Program Confidentiality ................... 82
SECTION 15.8. Confidentiality of the Transferor Information 85
SECTION 15.9. Captions and Cross References ............................. 88
SECTION 15.10. Integration ............................................... 88
SECTION 15.11. Governing Law ............................................. 88
SECTION 15.12. Waiver Of Jury Trial ...................................... 88
SECTION 15.13. Consent To Jurisdictions Waiver Of Immunities 88
SECTION 15.14. Execution in Counterparts ................................. 89
SECTION 15.15. Purchaser's Liabilities ................................... 89
SECTION 15.16. Agent's Liabilities ....................................... 89
SECTION 15.17. Delegation of Servicer's Duties ........................... 89
SECTION 15.18. Characterization of the Transactions
Contemplated by this Agreement ....................................... 90
Schedule 2.3(b) Form of Concentration Limit Certificate
Schedule 3.4(a) Periodic Report
Schedule 5.1(a) Form of Certificate of Assignments
Schedule 5.1(h) Form of Lock Box Agreement
Schedule 5.1(i) Form of opinion of Akerman, Senterfitt & ▇▇▇▇▇▇, P.A.
Schedule 13.5(b) Form of Assignment and Assumption Agreement
Schedule 5.1(p)(i) Amended and Restated Purchase and Sale Agreement
Schedule 5.1(p)(ii) Receivables Purchase Agreement
Schedule 6.1(j) Litigation
Schedule 6.1(n) Location of Transferor's books, records and documents
Schedule 6.1(w) List of Subsidiaries, Divisions and Tradenames
Schedule 6.2(h) Changes in Financial Condition
Schedule 6.2(n) Location of Servicer's, books, records and documents
Schedule 6.2(o) Lock Box Accounts
v
126
Schedule 2.3(b)
FORM OF SPECIAL CONCENTRATION LIMIT CERTIFICATE
Reference is made to that certain Amended and Restated Transfer and
Administration Agreement dated as of January 26, 2001 (as at any time amended or
otherwise modified, the "Purchase Agreement") among Wackenhut Funding
Corporation, a Florida corporation, The Wackenhut Corporation, Enterprise
Funding Corporation, and Bank of America N.A., as Agent and the Bank Investors.
Capitalized terms used herein have the meaning assigned thereto in the Purchase
Agreement. For purposes of Section 2.3(b) of the Purchase Agreement, the
following Special Concentration Limits shall be in effect for the period from
January 26, 2001 until such time as the Administrative Agent delivers to the
Transferor and the Servicer written notice of a change in the Special
Concentration Limits:
(a) Any one Obligor rated BBB or Baa2 or better by Standard &
Poor's Corporation and ▇▇▇▇▇'▇ Investors Service, Inc., respectively,
may have a Special Concentration Limit of 5% of the Aggregate Unpaid
Balance of the Eligible Receivables in the Receivables Pool at any
time, plus
(b) Any three Obligors rated BBB or Baa2 or better by Standard &
Poor's Corporation and ▇▇▇▇▇'▇ Investors Service, Inc., respectively,
may each have Special Concentration Limits of 4% of the Aggregate
Unpaid Balance of the Eligible Receivables in the Receivables Pool at
any time, plus
(c) Any five Obligors, regardless of rating, may each have Special
Concentration Limits of 3% of the Aggregate Unpaid Balance of the
Eligible Receivable in the Receivable Pool at any time.
Transferor shall identify the specific Obligors to whom the Special
Concentration Limits described above should be applied by such form of notice as
the Agent may from time to time require.
Date: BANK OF AMERICA, N.A.,
----------------------- as Agent
By:
--------------------------------
Its:
-------------------------------
127
SCHEDULE 5.1(a)
FORM OF CERTIFICATE OF ASSIGNMENTS
Reference is made to the Amended and Restated Transfer and
Administration Agreement, dated as of January 26, 2001 (the "Transfer
Agreement"), among the undersigned (as "Seller"), Enterprise Funding Corporation
(as the "Purchaser" or "Enterprise"), Bank of America, N.A., as agent for
Enterprise and the Bank Investors (in such capacity, the "Agent") and The
Wackenhut Corporation (as "Servicer"). Terms defined in the Transfer Agreement
are used herein as therein defined.
The undersigned hereby sells, assigns and transfers unto Enterprise
each Undivided Interest purchased from the undersigned in one or more Purchases
pursuant to the Transfer Agreement.
Each Purchase by Enterprise from the undersigned of an Undivided
Interest shall be endorsed by Enterprise on a grid with respect to each such
Undivided Interest which has been or shall be attached hereto (and, upon such
attachment, made a part hereof) or, at Enterprise's option, in the records of
the Administrative Agent, and such endorsement shall evidence the ownership by
Enterprise of the Undivided Interest; provided, that the failure of Enterprise
(or the Administrative Agent on behalf of Enterprise) to make any such
endorsement shall not void or otherwise impair any Purchase or limit the
undersigned's obligations under the Transfer Agreement with respect to the
Undivided Interests purchased.
This Certificate of Assignments is made without recourse except as
provided in the Transfer Agreement. This Certificate of Assignments is made
pursuant to and upon all the representations, warranties, covenants and
agreements on the part of the undersigned contained in the Transfer Agreement.
This Certificate of Assignments is governed by and is to be construed
and interpreted in accordance with the Transfer Agreement and the internal laws
of the State of New York without regard to principles of conflicts of laws.
Assignment by Enterprise of one or more Undivided Interests, or any
portion thereof, is subject to the terms of the Transfer Agreement, including,
without limitation, Article XIII thereof. Any such assignment shall be endorsed
by Enterprise on the grid with respect to each such Undivided Interest attached
hereto or, at Enterprise's option, in the records of the Agent, and such
endorsement shall evidence the ownership by the assignee named
128
therein of each Undivided Interest (or portion thereof) so assigned; provided,
that the failure of Enterprise (or the Agent on behalf of Enterprise) to make
any such endorsement shall not void or otherwise impair any such assignment or
limit the undersigned's obligations under the Agreement to the assignee with
respect to any such Undivided Interest (or portion thereof) so assigned.
Each reduction in Enterprise's Investment of each Undivided Interest as
a result of the occurrence of a Run Off Day or day of partial liquidation as
provided in Section 3.3(b) or (c) of the Transfer Agreement with respect to such
Undivided Interest and each combination or division of one or more Undivided
Interests shall also be endorsed by Enterprise on the grid with respect to each
such Undivided Interest and each combination or division of one or more
Undivided Interests attached hereto or, at Enterprise's option, in the records
of the Administrative Agent, but the failure of Enterprise (or the Agent on
behalf of Enterprise) to make any such endorsement shall not modify such
reduction in Enterprise's Investment or such combination or division of one or
more Undivided Interests.
The undersigned hereby certifies on and as of the date of each Purchase
that the conditions set forth in Sections 5.2 and 5.3 of the Transfer Agreement
are fulfilled on such date.
This letter agreement may be executed in counterparts each of which
shall be deemed to be an original and all of which together shall constitute but
one and the same letter agreement.
IN WITNESS WHEREOF, the undersigned has caused this Assignment to be
duly executed this ______________ ____, 20__.
WACKENHUT FUNDING
CORPORATION
By
--------------------------------
Title
------------------------------
2
129
Grid with Respect to Undivided Interest No. _______(1)
Attached to and Made a Part of Certificate of Assignments dated
_________ __, 20__ from Wackenhut Funding Corporation to Enterprise
Funding Corporation
Amount of Amount of
Amount of Reduction Increase of
Date of Enter- of Enter- Enter-
Endorsed prise's Amount of prise's prise's
Transaction Investment Assignment Investment Investment
----------- ---------- ---------- ---------- -----------
--------------------------
(1) A separate grid should be attached reflecting each Undivided Interest as
sold.
3
130
Schedule 5.1(h)
January __, ▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, N.A.
▇.▇. ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies and Gentlemen:
Reference is made to our lock-box account No. 3750156489 maintained
with you (the "Account"). Pursuant to an Amended and Restated Transfer and
Administration Agreement (the "Transfer Agreement") dated as of January 26,
2001, as the same may be amended or otherwise modified from time to time, among
us, as Transferor, The Wackenhut Corporation, as Servicer (the "Servicer"),
Enterprise Funding Corporation, as a Purchaser ("Purchaser") and Bank of
America, N.A., as a Bank Investor and as the agent for the Purchaser and the
Bank Investors (in such capacity, the "Agent") and the other Bank Investors. We
have assigned and/or may hereafter assign to the Agent, on behalf of the
Purchaser and the Bank Investors, one or more undivided percentage interests in
certain of the accounts, chattel paper, instruments or general intangibles
(collectively, "Receivables") with respect to which payments are or may
hereafter be made to the Account, and have granted to the Agent, on behalf of
the Purchaser and the Bank Investors, a security interest in the undersigned's
retained interest in such Receivables. Your execution of this letter agreement
is a condition precedent to the continued maintenance by us of the Account with
you.
In accordance with the Transfer Agreement, we are hereby transferring
to the Agent exclusive ownership and control of the Account. The Agent has
agreed to permit us to access the Account until such time as the Agent gives you
notice that we shall no longer be permitted access to such Account, which notice
shall be substantially in the form attached hereto as Annex 1.
131
January __, 2001
Page 2
We hereby irrevocably instruct you, at all times from and after the
date of your receipt of notice from the Agent as described above, to make all
payments to be made by you out of or in connection with the Account directly to
the Agent, at its address set forth below its signature hereto or otherwise in
accordance with the instructions of the Agent.
We also hereby notify you that, at all times from and after the date of
your receipt of notice from the Agent as described above, the Agent shall be
irrevocably entitled to exercise in our place and stead any and all rights in
respect of or in connection with the Account, including, without limitations,
(a) the right to specify when payments are to be made out of or in connection
with the Account and (b) the right to require preparation of duplicate monthly
bank statements on the Account for the Agent's audit purposes and mailing of
such statements directly to an address specified by the Agent.
Notice from the Agent may be personally served or sent by Telex,
facsimile or U.S. mail, certified return receipt requested, to the address,
Telex or facsimile number set forth under your signature to this letter of
agreement, or to such other address, Telex or facsimile number which you provide
the Agent in writing. If notice is given by Telex or facsimile, it will be
deemed to have been received when the notice is sent and the answerback is
received (in the case of Telex) or receipt is confirmed by telephone or other
electronic means (in the case of facsimile). All other notices will be deemed to
have been received when actually received or, in the case of personal delivery,
delivered.
By executing this letter of agreement, you acknowledge the Agent's
ownership and control of the Account and its ownership of (in each case, on
behalf of the Purchaser and the Bank Investors) and security interest in the
amounts from time to time on deposit therein and agree that from the date hereof
the Account shall be maintained by you for the benefit of, and amounts from time
to time therein held by you as agent for, the Agent on the terms provided
herein. The Account is to be entitled "Bank of
132
January __, 2001
Page 3
America, N.A." as the Agent for Enterprise Funding Corporation and the Bank
Investors". Except as otherwise provided in this letter agreement, payments to
the Account are to be processed in accordance with the standard procedures
currently in effect. All service charges and fees with respect to the Account
shall continue to be payable by us under the arrangements currently in effect.
By executing this letter agreement, you irrevocably waive and agree not
to assert, claim or endeavor to exercise, irrevocably bar and estop yourself
from asserting, claiming or exercising, and acknowledge that you have not
heretofore received a notice, writ, order or any form of legal process from any
other party asserting, claiming or exercising, any right of set-off, banker's
lien or other purported form of claim with respect to the Account or any funds
from time to time therein. Except for your right to payment of your customary
service charges and fees for the routine maintenance and operation of the
Account and to make deductions for returned items, you shall have no rights in
the Account or funds therein. To the extent you may ever have such rights, you
hereby expressly subordinate all such rights to all rights of the Agent.
You may terminate this letter agreement by canceling the Account
maintained with you, which cancellation and termination shall become effective
only upon thirty days' prior written notice thereof from you to the Agent.
Incoming mail addressed to the Account received after such cancellation shall be
forwarded in accordance with the Agent's instructions. This letter agreement may
also be terminated upon written notice to you by the Agent stating that the
Transfer Agreement pursuant to which this letter agreement was obtained is no
longer in effect. Except as otherwise provided in this paragraph, this letter
agreement may not be terminated or amended without the prior written consent of
the Agent.
Please acknowledge your agreement to the terms set forth in this letter
agreement by signing the two copies of this letter agreement enclosed herewith
in the space provided below, sending
133
January __, 2001
Page 4
one such signed copy to the Agent at its address provided above and returning
the other signed copy to us.
Very truly yours,
THE WACKENHUT CORPORATION
By: , ▇▇▇ ▇▇▇▇▇▇▇
Title:
Accepted and confirmed as of
the date first written above:
ENTERPRISE FUNDING CORPORATION
Purchaser
By:
Title:
Acknowledged and agreed to as of
the date first written above:
BANK OF AMERICA, N.A.
By:
Title:
Address for notice:
IL1-231-16-05
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ - Vice President
Telephone: 312/▇▇▇-▇▇▇▇
Facsimile No.: 312/923-0273
134
ANNEX 1
TO LOCK-BOX AGREEMENT
NOTICE OF EFFECTIVENESS
DATED: ______________, 20__
TO: Bank of America, N.A.
▇.▇. ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
ATTN:_________________________
Re: Lock Box Account 3750156489
Ladies and Gentlemen:
We hereby give you notice that the transfer of control of the
above-referenced Lock-Box Account, as described in our letter agreement with you
dated as of December 23, 1997 is effective as of the date hereof. You are hereby
instructed to comply immediately with the instructions set forth in that letter.
Very truly yours,
WACKENHUT FUNDING CORPORATION
By: ________________________________________
Title: _____________________________________
ACKNOWLEDGED AND AGREED:
BANK OF AMERICA, N.A.
By: ___________________________
Title: ________________________
Date: _________________________
▇.▇. ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention:_____________________
Facsimile No.:_________________
135
Schedule 5.1(i)
Form of opinion of Akerman, Senterfitt & ▇▇▇▇▇▇, P.A.
See Tab D-2.
136
Schedule 13.5(b)
Form of Assignment and Assumption Agreement
Reference is made to the Amended and Restated Transfer and
Administration Agreement dated as of January __, 2001 as it may be amended or
otherwise modified from time to time (as so amended or modified, the "Transfer
Agreement") among Wackenhut Funding Corporation, as transferor (in such
capacity, the "Transferor"), The Wackenhut Corporation, individually and as
servicer (in such capacity, the "Servicer"), Enterprise Funding Corporation, as
purchaser (in such capacity, the "Purchaser") and Bank of America, N.A., as
agent for Enterprise and certain financial institutions from time to time a
party thereto as Bank Investors (in such capacity, the "Agent"). Terms defined
in the Transfer Agreement are used herein with the same meaning.
__________________(the "Assignor") and ____________________(the
"Assignee") agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, without
recourse and without representation and warranty, and the Assignee hereby
purchases and assumes from the Assignor, an interest in and to all of the
Assignor's rights and obligations under the Transfer Agreement and the other
Agreement Documents. Such interest expressed as a percentage of all rights and
obligations of the Bank Investors being equal to the percentage equivalent of a
fraction the numerator of which is $______________ and the denominator of which
is the Facility Limit. After giving effect to such sale and assignment, the
Assignee's Commitment will be as set forth on the signature page hereto.
2. [In consideration of the payment of $_____________, being ___%
of the existing Aggregate Purchaser's Investment, and of $_____________, being
___% of the aggregate unpaid accrued Earned Discount, receipt of which payment
is hereby acknowledged, the Assignor hereby assigns to the Agent for the account
of the Assignee, and the Assignee hereby purchases from the Assignor, a _____%
interest in and to all of the Assignor's right, title and interest in and to the
Aggregate Purchaser's Investment purchased by the undersigned on
________________, 20__ under the Transfer Agreement.] [include if an existing
Aggregate Purchaser's Investment is being assigned.]
137
3. The Assignor (i) represents and warrants that it is the legal
and beneficial owner of the interest being assigned by it hereunder and that
such interest is free and clear of any adverse claim; (ii) makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with the
Transfer Agreement, any other Agreement Document or any other instrument or
document furnished pursuant thereto or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Transfer Agreement or
the Receivables, any other Agreement Document or any other instrument or
document furnished pursuant thereto; and (iii) makes no representation or
warranty and assumes no responsibility with respect to the financial condition
of any of the Transferor, the Servicer, the Seller or any Originator or the
performance or observance by any of the Transferor, the Servicer, the Seller or
any Originator of any of its obligations under the Transfer Agreement, any other
Agreement Document, or any instrument or document furnished pursuant thereto.
4. The Assignee (i) confirms that it has received a copy of the
Transfer Agreement, the Receivables Purchase Agreement and the Amended and
Restated Purchase and Sale Agreement, together with copies of the financial
statements referred to in Section 6.2 of the Transfer Agreement, to the extent
delivered through the date of this Agreement, and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Assignment; (ii) agrees that it will, independently
and without reliance upon the Agent, any of its Affiliates, the Assignor or any
other Purchaser and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Transfer Agreement and any other Agreement Document;
(iii) appoints and authorizes the Agent to take such action as agent on its
behalf and to exercise such powers and discretion under the Transfer Agreement
and the other Agreement Documents as are delegated to the Agent by the terms
thereof, together with such powers and discretion as are reasonably incidental
thereto; (iv) agrees that it will perform in accordance with their terms all of
the obligations which by the terms of the Transfer Agreement are required to be
performed by it as a Bank Investor; and (vi) specifies as its address for
notices and its account for payments the office and account set forth beneath
its name on the signature pages hereof[; and (vii) attaches the forms prescribed
by the Internal Revenue Service of the United States of America certifying as to
the Assignee's status for purposes of determining exemption from United States
withholding taxes with respect to all payments to be made to the Assignee under
the Transfer Agreement or such other documents
2
138
as are necessary to indicate that all such payments are subject to such rates at
a rate reduced by an applicable tax treaty].(2)
5. The effective date for this Assignment shall be the later of
(i) the date on which the Agent receives this Assignment executed by the parties
hereto and receives the consent of the Transferor and the Agent, on behalf of
the Purchaser, and (ii) the date of this Assignment (the "Effective Date").
Following the execution of this Assignment and Assumption Agreement and the
consent of the Transferor and the Agent, on behalf of the Purchaser, this
Assignment and Assumption Agreement will be delivered to the Agent for
acceptance and, with respect to the Assignment and Assumption Agreement,
recording by the Agent.
6. Upon such acceptance and recording, as of the Effective Date,
(i) the Assignee shall be a party to the Transfer Agreement and, to the extent
provided in this Assignment, have the rights and obligations of a Bank Investor
thereunder and (ii) the Assignor shall, to the extent provided in this
Assignment, relinquish its rights and be released from its obligations under the
Transfer Agreement.
7. Upon such acceptance and recording, from and after the
Effective Date, the Agent shall make all payments under the Transfer Agreement
in respect of the interest assigned hereby (including, without limitation, all
payments in respect of such interest in Aggregate Purchaser's Investment, Earned
Discount and fees) to the Assignee. The Assignor and Assignee shall make all
appropriate adjustments in payments under the Transfer Agreement for periods
prior to the Effective Date directly between themselves.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
------------------
(2) If the Assignee is organized under the laws of a jurisdiction outside the
United States.
3
139
8. This Assignment shall be governed by, and construed in
accordance with, the laws of the State of New York.
This Assignment 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 taken together shall
constitute one and the same agreement. Delivery of an executed counterpart of
the signature page to this Assignment by telecopier shall be effective as
delivery of a manually executed counterpart of this Assignment.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Assumption to be executed by their respective officers thereunto duly authorized
as of the ____________ day of ________, 20__.
Remaining [NAME OF ASSIGNOR]
Commitment
By:
----------------------------
Name:
Title:
Commitment [NAME OF ASSIGNEE]
$___________
By:
----------------------------
Name:
Title:
Address for notices and Account for
payments:
[Address]
[Account]
4
140
Consented to this __ day
of __________, 20__
BANK OF AMERICA, N.A., as
Administrative Agent
By:
------------------------------
Name:
Title:
[TRANSFEROR]
By:
------------------------------
Name:
Title:
Accepted this ____ day
of ___________, 20__
BANK OF AMERICA, N.A.
as Agent
By:
------------------------------
Name:
Title:
5
141
Schedule 5.1(p)(i)
Amended and Restated Purchase and Sale Agreement
See Tab A-3.
6
142
Schedule 5.1(p)(ii)
Receivables Purchase Agreement
See Tab A-2.
7
143
Schedule 6.1(j)
Litigation
None.
8
144
Schedule 6.1(n)
List of Location of Records
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ #▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
9
145
Schedule 6.2(h)
Changes in Financial Condition
None.
10
146
Schedule 6.2(n)
List of Location of Records
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ #▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
11
147
Schedule 6.2(o)
List of Lockbox Banks and Accounts
Bank Name ABA Account Number
--------- --------- --------------
Bank of America Customer Connection ▇▇▇▇▇▇▇▇▇ 3750156489
12