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EXHIBIT 4.16
AMENDMENT NUMBER 3 TO
TRANSFER AND ADMINISTRATION AGREEMENT
AMENDMENT NUMBER 3 TO TRANSFER AND ADMINISTRATION AGREEMENT
(this "AMENDMENT"), dated as of January 29, 1999, 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 NATIONSBANK, N.A., a national banking association ("NATIONSBANK"),
as agent for Enterprise and the Bank Investors (in such capacity, the "AGENT")
and as a Bank Investor, amending that certain Transfer and Administration
Agreement dated as of December 30, 1997 among the Transferor, the Servicer, the
Purchaser, the Agent and NationsBank (collectively, the "PARTIES"), as amended
to the date hereof by the First Amendment to Transfer and Administration
Agreement dated as of March 24, 1998, among the Parties and the Second Amendment
to Transfer and Administration Agreement dated December 23, 1998, among the
Parties (collectively, the "ORIGINAL AGREEMENT," and said agreement as amended
by this Amendment, the "AGREEMENT").
WHEREAS, the Transferor has requested that the Purchaser and
the Agent agree to: (a) increase the amount of the Facility Limit and the
Purchase Limit under the Original Agreement, (b) extend the Commitment
Termination Date of the Original Agreement, and (c) make certain other
amendments to the Original Agreement;
WHEREAS, the Original Agreement requires that the consent of
the Transferor, the Servicer, the Purchaser and each Bank Investor be obtained
in order to effect certain of the amendments contemplated herein;
WHEREAS, on the terms and conditions set forth herein, the
parties hereto consent to such amendments;
WHEREAS, capitalized terms used herein shall have the meanings
assigned to such terms in the Original Agreement;
NOW, THEREFORE, in consideration of the premises and mutual
covenants herein contained, the parties hereto agree as follows:
SECTION 1. AMENDMENTS TO DEFINITIONS.
(a) The definition of "ASSIGNMENT AMOUNT" is hereby
amended to read in its entirety as follows (solely for convenience, changed text
is italicized):
"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, (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."
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(b) The definition of "CONDUIT ASSIGNEE" is hereby
amended to read in its entirety as follows (solely for convenience, changed text
is italicized):
"CONDUIT ASSIGNEe" shall mean any commercial paper
conduit administered by NationsBank OR BANK OF AMERICA
NATIONAL TRUST & SAVINGS ASSOCIATION and designated by
NationsBank from time to time to accept an assignment from the
Purchaser of all or a portion of the Purchaser Investment.
(c) The definition of "FACILITY LIMIT" is hereby
amended by deleting the amount "$61,200,000" in the text thereof and replacing
it with the amount of "$76,500,000."
(d) The definition of "NET ASSET TEST" should be
deleted in its entirety.
(e) The definition of "BANK RATE" set forth in
"APPENDIX B" to the Agreement, is hereby amended to read in its entirety as
follows (solely for convenience, changed text is italicized):
"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) 1.25% PER ANNUM, PLUS (B) the Eurodollar Rate (Reserve
Adjusted) of such Purchaser for such Yield Period; PROVIDED,
HOWEVER, 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 equal to a rate of (x) 1.25% PER ANNUM, PLUS
(Y) the Domestic CD Rate (Adjusted) for such Yield Period.
(f) The definition of "COMMERCIAL PAPER" set forth in
"APPENDIX B" to the Agreement, is hereby amended to read in its entirety as
follows (solely for convenience, changed text is italicized):
"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
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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.
(g) The definition of "LOSS RESERVE" set forth in
"APPENDIX B" to the Agreement is hereby amended to read in its entirety as
follows (solely for convenience, changed text is italicized):
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.
SECTION 2. AMENDMENT TO SECTION 1.2(A). Section 1.2(a) of the
Original Agreement is hereby amend to read in its entirety as follows (solely
for convenience, changed text is italicized):
"(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"
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SECTION 3. AMENDMENT TO SECTION 1.5(A). Section 1.5(a) of the
Original Agreement is hereby amended to read in its entirety as follows (solely
for convenience, changed text is italicized):
"(a) The 'COMMITMENT TERMINATION DATE' shall be the
earlier to occur of (i) JANUARY 28, 2000 (herein, as the same
may be extended, called the"SCHEDULED COMMITMENT TERMINATION
Date"), and (ii) the date of Termination of the Commitment
pursuant to SECTION 1.7 or 11.2."
SECTION 4. Amendment to Section 4.1.
(a) Section 4.1(a) of the Original Agreement is hereby amended
to read in its entirety as follows (solely for convenience, changed text is
italicized):
"(a) AGENT'S FEES. Fees payable to the PURCHASER OR
TO 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) Section 4.1(c) of the Original Agreement is hereby amended
to read in its entirety as follows (solely for convenience, changed text is
italicized):
"(c) DEALER FEE. The dealer fee is set forth in
THE FEE LETTER."
SECTION 5. AMENDMENT TO SECTION 6.1. Section 6.1 of the
Original Agreement is hereby amended by adding the following sub-section
immediately following sub-section (y) thereof:
"(z) YEAR 2000 COMPLIANCE. (A) The Transferor has (i)
initiated a review and assessment of all areas within its and
each of its subsidiaries' business and operations (including
those affected by suppliers, vendors and customers) that could
be adversely affected by the 'Year 2000 Problem' (that is, the
risk that computer applications used by the Transferor or any
of its subsidiaries (or suppliers, vendors and customers) may
be unable to recognize and perform properly date-sensitive
functions involving certain dates prior to and any date after
December 31, 1999), (ii) developed a plan and timeline for
addressing the Year 2000 Problem on a timely basis, and (iii)
to date, implemented that plan in accordance with that
timetable. Based on the foregoing, the Transferor believes
that all computer applications (including those of its
suppliers, vendors and customers) that are material to its or
any of its subsidiaries' business and operations are
reasonably expected on a timely basis to be able to perform
properly date-sensitive functions for all dates before and
after January 1, 2000 (that is, be 'Year 2000 Compliant'),
except to the extent that a failure to do so could not
reasonably be expected (a) to have a Material Adverse Effect
on the Transferor or on the transaction documented under this
Agreement, or (b) to result in a Termination Event.
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(B) The Transferor (i) has completed a review and
assessment of all computer applications (including, but not
limited to those of its suppliers, vendors, customers and any
third party servicers), which are related to or involved in
the origination, collection, management or servicing of the
Receivables (the 'RECEIVABLE SYSTEMS') and (ii) has determined
that such Receivable Systems are Year 2000 Compliant or will
be Year 2000 Compliant on or before January 1, 1999 and
thereafter.
(C) The costs of all assessment, remediation, testing
and integration related to the Transferor's plan for becoming
Year 2000 Compliant will not have a material adverse effect on
the financial condition or operations of the Transferor."
SECTION 6. AMENDMENT TO SECTION 6.2 Section 6.2 of the
Original Agreement is hereby amended by adding the following sub-section
immediately following sub-section (q) thereof:
"(r) YEAR 2000 COMPLIANCE. (A) The Servicer has (i)
initiated a review and assessment of all areas within its and
each of its subsidiaries' business and operations (including
those affected by suppliers, vendors and customers) that could
be adversely affected by the 'Year 2000 Problem' (that is, the
risk that computer applications used by the Servicer or any of
its subsidiaries (or suppliers, vendors and customers) may be
unable to recognize and perform properly date-sensitive
functions involving certain dates prior to and any date after
December 31, 1999), (ii) developed a plan and timeline for
addressing the Year 2000 Problem on a timely basis, and (iii)
to date, implemented that plan in accordance with that
timetable. Based on the foregoing, the Servicer believes that
all computer applications (including those of its suppliers,
vendors and customers) that are material to its or any of its
subsidiaries' business and operations are reasonably expected
on a timely basis to be able to perform properly
date-sensitive functions for all dates before and after
January 1, 2000 (that is, be 'Year 2000 Compliant'), except to
the extent that a failure to do so could not reasonably be
expected (a) to have a Material Adverse Effect on the Servicer
or on the transaction documented under this Agreement, or (b)
to result in a Termination Event.
(B) The Servicer (i) has completed a review and
assessment of all computer applications (including, but not
limited to those of its suppliers, vendors, customers and any
third party servicers), which are related to or involved in
the origination, collection, management or servicing of the
Receivables (the 'Receivable Systems') and (ii) has determined
that such Receivable Systems are Year 2000 Compliant or will
be Year 2000 Compliant on or before January 1, 1999 and
thereafter.
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(C) The costs of all assessment, remediation, testing
and integration related to the Servicer's plan for becoming
Year 2000 Compliant will not have a material adverse effect on
the financial condition or operations of the Servicer."
SECTION 7. AMENDMENT TO SECTION 7.2 Section 7.2 of the
Original Agreement is hereby amended by adding the following sub-section
immediately following sub-section immediately following sub-section (f) thereof:
"(g) YEAR 2000 COMPLIANCE. The Transferor will
promptly notify the Agent in the event the Transferor
discovers or determines that any computer application
(including those of its suppliers, vendors and customers) (i)
that is necessary for the origination, collection, management,
or servicing of the Receivables will not be Year 2000
compliant on or before January 1, 1999 and thereafter, or (ii)
that is otherwise material to its or any of its subsidiaries'
business and operations will not be Year 2000 compliant on a
timely basis, except to the extent that, in the case of (ii)
above, such failure could not reasonably be expected (a) to
have a Material Adverse Effect on the Transferor or on the
transaction documented under this Agreement, or (b) to result
in a Termination Event.
Further, the Transferor will deliver simultaneously
with any quarterly or annual financial statements or reports
to be delivered under the Agreement, a certificate signed by
the chief financial officer or treasurer of the Transferor
that no material event, problems or conditions have occurred
which in the opinion of management would (i) prevent or
materially delay the Transferor's plan to become Year 2000
compliant or (ii) cause or be likely to cause the Transferor's
representations and warranties with respect to being or
becoming Year 2000 compliant to no longer be true."
SECTION 8. AMENDMENT TO SECTION 7.4 Section 7.4 of the
Original Agreement is hereby amended by adding the following subsection
immediately following sub-section (i) thereof:
"(j) YEAR 2000 COMPLIANCE. The Servicer will promptly
notify the Agent in the event the Servicer discovers or
determines that any computer application (including those of
its suppliers, vendors and customers) (i) that is necessary
for the origination, collection, management, or servicing of
the Receivables will not be Year 2000 compliant on or before
January 1, 1999 and thereafter, or (ii) that is otherwise
material to its or any of its subsidiaries' business and
operations will not be Year 2000 compliant on a timely basis,
except to the extent that, in the case of (ii) above, such
failure could not reasonably be expected (a) to have a
Material Adverse Effect on the Servicer or on the transaction
documented under this Agreement, or (b) to result in a
Termination Event.
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Further, the Servicer will deliver simultaneously
with any quarterly or annual financial statements or reports
to be delivered under the Agreement, a certificate or
statement signed by the chief financial officer or treasurer
of the Servicer that no material event, problems or conditions
have occurred which in the opinion of management would (i)
prevent or materially delay the Servicer's plan to become Year
2000 compliant or (ii) cause or be likely to cause the
Servicer's representations and warranties with respect to
being or becoming Year 2000 compliant to no longer be true."
SECTION 9. AMENDMENT TO SECTION 7.5 Section 7.5 of the
Original Agreement is hereby amended by adding the following sub-section
immediately following sub-section (f) thereof:
"(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 30, 1998, 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, and (ii) confirmed that the Receivables
treated by the Servicer as Eligible Receivables in fact
satisfied the requirements of the definition thereof contained
herein, 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."
Sub-section 7.5 (g) entitled "OTHER" is hereby re-lettered as
sub-section "(h)".
SECTION 10. AMENDMENT TO SECTION 11.2 Section 11.2 of the
Original Agreement is hereby amended by adding the following sub-section
immediately following subsection (b) thereof:
"(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. 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, 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.
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Subsection 11.2(c) entitled "ADDITIONAL REMEDIES" is
hereby re-lettered as sub-section "(d)."
SECTION 11. AMENDMENT TO SECTION 12.1. Section 12.1 of the
Original Agreement is hereby amended to read in its entirety as follows (solely
for the convenience, changed text is italicized):
"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, 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."
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SECTION 12. AMENDMENT TO SECTION 12.2. Section 12.2 of the
Original Agreement is hereby amended to read in its entirety as follows (solely
for convenience, changed text is italicized):
"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
PURCHASER, AND SUCH INSTRUCTIONS SHALL BE BINDING ON the
Purchaser AND 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 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 13. AMENDMENT TO ARTICLE 12. Article 12 of the
Original Agreement is hereby further amended to include the following section
immediately following Section 12.3 thereof:
"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 MAJORITY INVESTORS SHALL HAVE THE RIGHT TO
APPOINT A SUCCESSOR AGENT. IF NO SUCCESSOR AGENT SHALL HAVE
BEEN SO APPOINTED BY THE MAJORITY INVESTORS 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."
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SECTION 14. AMENDMENT TO SECTION 13.2. Section 13.2 is hereby
amended to read in its entirety as follows (solely for convenience, changed text
is italicized):
"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."
SECTION 15. AMENDMENT TO SECTION 13.5(A). Section13.5(a) is
hereby amended to read in its entirety as follows (solely for convenience,
changed text is italicized):
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"(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, at any time on or prior to
the Commitment Termination Date (i) upon the occurrence of a
Termination Event that results in the Commitment Termination
Date or (ii) 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 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 assignment by the
Purchaser to the Bank Investors contemplated hereunder, the
Purchaser shall cease to make any additional Purchases
hereunder."
SECTION 16. AMENDMENT TO SECTION 13.5(B). Section 13.5(b) is
hereby amended to read in its entirety as follows (solely for convenience,
changed language is italicized):
"(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
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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 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."
SECTION 17. AMENDMENT TO SECTION 13.5(f). Section
13.5(f) is hereby amended to read in its entirety as follows (solely for
convenience, changed language is italicized)
"(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 NATIONSBANK, OR SUCH OTHER PERSON
ACTING AS COLLATERAL AGENT IN RESPECT OF THE PURCHASER'S
COMMERCIAL PAPER NOTE PROGRAM."
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SECTION 18. CONDITION PRECEDENT. This Amendment shall not
become effective until the Agent shall have executed this Amendment and shall
have received counterparts of this Amendment executed by the Purchaser, the
Transferor, the Servicer and each Bank Investor.
SECTION 19. CONDITION SUBSEQUENT. Counsel to Transferor and
The Wackenhut Corporation will deliver to the Purchaser and the Agent, within
ten (10) Business Days after the date hereof, an opinion of counsel to
Transferor and The Wackenhut Corporation, individually and as Servicer, with
respect to certain corporate matters and the enforceability of the Original
Agreement as amended to the date hereof (including by this Amendment). Failure
to deliver such opinion in form and substance satisfactory to the Agent, the
Purchaser and their counsel shall result in a Termination Event under the
Original Agreement.
SECTION 20. REPRESENTATIONS AND WARRANTIES. Each of the
Transferor and the Servicer hereby makes to the Purchaser, the Agent and each
Bank Investor on and as of the date hereof, the following representations and
warranties:
(a) AUTHORITY. Each of the Transferor and the
Servicer has the requisite corporate power and authority to
execute and deliver this Amendment and to perform its
obligations hereunder and under the Original Agreement (as
modified hereby). The execution, delivery and performance by
the Transferor and the Servicer of this Amendment and the
performance of the Original Agreement (as modified hereby)
have been duly approved by all necessary corporate action and
no other corporate proceedings are necessary to consummate
such transactions;
(b) ENFORCEABILITY. This Amendment has been duly
executed and delivered by each of the Transferor and the
Servicer. The Original Agreement (as modified hereby) is the
legal, valid and binding obligation of the Transferor and the
Servicer enforceable against the Transferor and the Servicer
in accordance with its terms, and is in full force and effect;
and
(c) REPRESENTATIONS AND WARRANTIES. The
representations and warranties of the Transferor and the
Servicer contained in the Original Agreement (other than any
such representations or warranties that, by their terms, are
specifically made as of a date other than the date hereof) are
correct on and as of the date hereof as though made on and as
of the date hereof.
SECTION 21. REFERENCE TO AND EFFECT ON THE ORIGINAL AGREEMENT.
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Except as specifically amended and modified above,
the Original Agreement is and shall continue to be in full force and effect and
is hereby in all respects ratified and confirmed.
The execution, delivery and effectiveness of this
Amendment shall not operate as waiver of any right, power or remedy of the
Purchaser, the Agent or the Bank Investor(s) under the Agreement, nor constitute
a waiver of any provision of the Original Agreement.
SECTION 22. NO TERMINATION EVENT. No event has occurred and is
continuing that constitutes a Termination Event or an Unmatured Termination
Event.
SECTION 23. AMENDMENT AND WAIVER. No provision hereof may be
amended, waived, supplemented, restated, discharged or terminated without the
written consent of the Transferor, the Purchaser, the Agent and the Majority
Investors.
SECTION 24. SUCCESSORS AND ASSIGNS. This Amendment shall bind,
and the benefits hereof shall inure to the parties hereof and their respective
successors and permitted assigns; PROVIDED, HOWEVER, the Transferor may not
assign any of its rights or delegate any of its duties under this Amendment
without the prior written consent of the Purchaser.
SECTION 25. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. THE
TRANSFEROR HEREBY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AND OF ANY NEW YORK STATE
COURT SITTING IN THE CITY OF NEW YORK FOR PURPOSES OF ALL LEGAL PROCEEDINGS
ARISING OUT OF OR RELATING TO THIS AMENDMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
SECTION 26. SEVERABILITY; COUNTERPARTS. This Amendment may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which when taken together shall constitute one and the same
instrument. Any provisions of this Amendment which are prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
SECTION 27. CAPTIONS. The captions in this Amendment are for
convenience of reference only and shall not define or limit any of the terms or
provisions hereof.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Amendment as of the date first written above.
ENTERPRISE FUNDING CORPORATION,
as Purchaser
By:
--------------------------------
Name:
Title:
WACKENHUT FUNDING CORPORATION
as Transferor
By:
--------------------------------
Name:
Title:
THE WACKENHUT CORPORATION,
as Servicer
By:
--------------------------------
Name:
Title:
NATIONSBANK, N.A.,
as Agent and Bank Investor
By:
--------------------------------
Name:
Title:
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