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Exhibit 4.20
AMENDMENT NUMBER 4 TO
TRANSFER AND ADMINISTRATION AGREEMENT
AMENDMENT NUMBER 4 TO TRANSFER AND ADMINISTRATION AGREEMENT
(this "AMENDMENT"), dated as of January 28, 2000, among WACKENHUT FUNDING
CORPORATION, a Delaware corporation (the "TRANSFEROR") and its successors and
assigns, THE WACKENHUT CORPORATION, a Florida corporation, individually and as
servicer ("WACKENHUT" or the "SERVICER"), ENTERPRISE FUNDING CORPORATION, a
Delaware corporation ("ENTERPRISE" or the "PURCHASER") and its successors
assigns, and BANK OF AMERICA, N.A. (as successor to NATIONSBANK, N.A.), a
national banking association ("BANK OF AMERICA"), as agent for Enterprise and
the Bank Investors (in such capacity, the "AGENT") and as a Bank Investor,
amending that certain Transfer and Administration Agreement dated as of December
30, 1997 among the Transferor, the Servicer, the Purchaser, the Agent and Bank
of America (collectively, the "PARTIES"), as amended to the date hereof by the
First Amendment to Transfer and Administration Agreement dated as of March 24,
1998, among the Parties, the Second Amendment to Transfer and Administration
Agreement dated December 23, 1998, among the Parties, and the Third Amendment to
the Transfer and Administration Agreement dated January 29, 1999, among the
Parties (collectively, the "ORIGINAL AGREEMENT," and said agreement as amended
by this Amendment, the "AGREEMENT").
WHEREAS, the Transferor has requested that the Purchaser and
the Agent agree to: (a) extend the Commitment Termination Date of the Original
Agreement, and (b) make certain other amendments to the Original Agreement;
WHEREAS, the Original Agreement requires that the consent of
the Transferor, the Servicer, the Purchaser and each Bank Investor be obtained
in order to effect certain of the amendments contemplated herein;
WHEREAS, on the terms and conditions set forth herein, the
parties hereto consent to such amendments;
WHEREAS, capitalized terms used herein shall have the meanings
assigned to such terms in the Original Agreement;
NOW, THEREFORE, in consideration of the premises and mutual
covenants herein contained, the parties hereto agree as follows:
SECTION 1. AMENDMENT TO DEFINITIONS.
The definition of "NET WORTH" should be deleted in
its entirety.
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SECTION 2. 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) MARCH 31, 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 3. AMENDMENT TO SECTION 7.1(h). Section 7.1(h) of the
Original Agreement is hereby amended to read in its entirety as follows (solely
for convenience, changed text is italicized):
"(h) MINIMUM NET WORTH. The Transferor shall at all
times maintain a minimum NET WORTH of not less than 10% of the
Net Pool Balance."
SECTION 4. 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 5. 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
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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 6. REFERENCE TO AND EFFECT ON THE ORIGINAL AGREEMENT.
Except as specifically amended and modified above,
the Original Agreement is and shall continue to be in full force and effect and
is hereby in all respects ratified and confirmed.
The execution, delivery and effectiveness of this
Amendment shall not operate as waiver of any right, power or remedy of the
Purchaser, the Agent or the Bank Investor(s) under the Agreement, nor constitute
a waiver of any provision of the Original Agreement.
SECTION 7. NO TERMINATION EVENT. No event has occurred and is
continuing that constitutes a Termination Event or an Unmatured Termination
Event.
SECTION 8. 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 9. 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 10. 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 11. 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
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unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
SECTION 12. CAPTIONS. The captions in this Amendment are for
convenience of reference only and shall not define or limit any of the terms or
provisions hereof.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Amendment as of the date first written above.
ENTERPRISE FUNDING CORPORATION,
as Purchaser
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Vice President
WACKENHUT FUNDING CORPORATION
as Transferor
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Vice President
THE WACKENHUT CORPORATION,
as Servicer
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President
BANK OF AMERICA, N.A. (as successor to
NATIONSBANK, N.A.),
as Agent and a Bank Investor
By: /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
Title: Vice President
SUNTRUST BANK, SUCCESSOR-IN-INTEREST
TO SUNTRUST BANK, SOUTH FLORIDA, N.A.,
as a Bank Investor
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
Title: Asst. Vice President
THE BANK OF NOVA SCOTIA,
as a Bank Investor
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Managing Director
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