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Exhibit 4.5
AMENDMENT NUMBER 1
TO RECEIVABLE PURCHASE AGREEMENT
AMENDMENT NUMBER 1 TO RECEIVABLE PURCHASE AGREEMENT (this
"Amendment"), dated as of January 26, 2001, between WACKENHUT FUNDING
CORPORATION, a Delaware corporation (the "Transferor") and its successors and
assigns and THE WACKENHUT CORPORATION, a Florida corporation, (the "Seller") and
its successors assigns, amending that certain Receivable Purchase Agreement
dated as of December 30, 1997 between the Transferor and the Seller
(collectively, the "Parties"), (the "Original Agreement," and said agreement as
amended by this Amendment, the "Agreement").
WHEREAS, the Parties have agreed to adjust the calculation of
the Purchase Price as set forth in the Original Agreement and to permit the
Seller to contribute capital to the Transferor in exchange for equity interests
in the Transferor, as well as certain other changes;
WHEREAS, the Original Agreement requires that the consent of
the Transferor and the Seller be obtained in order to effect the amendments
contemplated herein;
WHEREAS, on the terms and conditions set forth herein, the
Parties 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 Section 1.3. The first sentence of
Section 1.3 of the Original Agreement is hereby amended to read in its entirety
as follows (solely for convenience, changed text is italicized):
"Consideration for Purchases; IP Note; Equity Contribution. On
the terms and subject to the conditions set forth in this Agreement,
the Transferor agrees to make all Purchase Price
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payments (as determined in accordance with Section 2.1) in immediately
available funds received from the Purchaser or the Bank Investors, as
applicable, pursuant to the Transfer Agreement and, to the extent such
funds are insufficient, by either (a) issuing, or increasing the
principal amount outstanding under, a promissory note in the form of
Exhibit A hereto to be issued by the Transferor to the Seller (such
promissory note, as it may be amended, supplemented, endorsed or
otherwise modified from time to time, together with all promissory
notes issued from time to time in substitution therefor or renewal
thereof, being herein called the "IP Note"), (b) treating the extent of
such insufficient funds as a capital contribution by Seller to
Transferor or (c) utilizing a combination of (a) and (b) above, which
such determination shall be at the sole discretion of the Seller."
SECTION 2. Amendment to Section 2.1. Section 2.1 of the
Original Agreement is hereby amended to read in its entirety as follows:
"Calculation of Purchase Price. With regard to each Month End
Date, the "Purchase Price" for the Receivables sold by the Seller
during the fiscal month ending on such Month End Date shall be
determined in accordance with the following formula:
PP = (AUB - ADA) x (1 - (DR/360(*)Days))
Where:
PP = the aggregate Purchase Price for such sold Receivables
AUB = "Aggregate Unpaid Balance" of such sold Receivables on such Month
End Date, which shall mean the sum of the Unpaid Balances of each of
such sold Receivables, as calculated as at the time of such sold
Receivables' sale to the Transferor.
ADA = "Allowance for Doubtful Accounts" which means the allowance for
doubtful accounts established in respect to the AUB of such sold
Receivables on the books of the Seller.
DR = "Discount Rate" means the (i) the sum of interest accrued at the
Cost of Funds Rate for the Month End Date plus (ii) 0.50%
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(which represents the servicing fee rate) plus (iii) a risk-adjusted
spread, not to be less than .50%, as mutually agreed upon from time to
time by the Transferor and the Seller.
"Costs of Funds Rate" means, for a Month End Date, the percentage
equivalent of a fraction the numerator of which is (i) the product of
12 and (ii) the sum of (A) all interest accrued under the Transfer
Agreement at the Purchaser Rate (including all applicable margins with
respect thereto) for the preceding fiscal month, plus (B) all amounts
accrued as Program Fees, Administrative Fees, Dealer Fees, and Facility
Fees under the Transfer Agreement and/or the Fee Letter for the
preceding fiscal month, and (C) all interest accrued under the IP Note
for the preceding fiscal month, and the denominator of which is the sum
of the average aggregate Purchaser's Investment under the Transfer
Agreement and the average aggregate outstanding principal amount of the
IP Note, in each case for the preceding fiscal month.
Days = means the estimated number of days outstanding for such
Receivables as mutually agreed upon from time to time by the Transferor
and the Seller."
SECTION 3. Amendment to Section 3.2(a). The first sentence of
Section 3.2(a) of the Original Agreement is hereby amended to read in its
entirety as follows (solely for convenience, changed text is italicized):
"(a) On each Month End Date falling after the Initial Closing
Date, the Transferor shall pay to the Seller the Purchase Price for the
Receivables purchased from the Seller during the immediately preceding
month by paying to the Seller all funds received by the Transferor from
the Purchaser or the Bank Investors, as applicable, for Purchases or
Reinvestments under the Transfer Agreement, and if insufficient, by
automatically increasing the principal amount outstanding under the
related IP Note by the amount of such insufficiency, less the amount,
of any capital contribution made by the Seller to the Transferor under
Section 1.3."
SECTION 4. Replacement of Note. The Non-Negotiable Term Note
dated December 30, 1997, between the Transferor, as promisor, and the
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Seller, as promisee, shall be destroyed and replaced by a note substantially in
the form of Exhibit A hereto.
SECTION 5. Representations and Warranties. Each of the
Transferor and the Seller hereby makes to the other on and as of the date
hereof, the following representations and warranties:
(a) Authority. Each of the Transferor and the Seller
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 Seller 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
Seller. The Original Agreement (as modified hereby) is the
legal, valid and binding obligation of the Transferor and the
Seller enforceable against the Transferor and the Seller 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
Seller 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 6. Reference to and Effect on the Original Agreement.
(a) 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.
(b) The execution, delivery and effectiveness of this
Amendment shall not operate as waiver of any right, power or
remedy of the
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Parties under the Agreement, nor constitute a waiver of any provision of the
Original Agreement.
SECTION 7. No Purchase and Sale Termination Event. No event
has occurred and is continuing that constitutes a Purchase and Sale 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 and the Seller.
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.
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 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.
WACKENHUT FUNDING CORPORATION
as Transferor
By:
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Name:
Title:
THE WACKENHUT CORPORATION,
as Seller
By:
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Name:
Title:
Pursuant to Section 7.3(e) of the Amended and Restated Transfer and
Administration Agreement (the "TAA") dated as of January 26, 2001 among the
Transferor, the Seller, Enterprise Funding Corporation and Bank of America,
N.A., as Bank Investor and as Agent, Bank of America and The Bank of Nova
Scotia, each in their capacities as Bank Investors, hereby consent to this
Amendment.
BANK OF AMERICA, N.A.,
as Bank Investor
By:
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Name:
Title:
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THE BANK OF NOVA SCOTIA
as Bank Investor
By:
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Name:
Title:
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