EXHIBIT 10.8
SIXTH AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF FEBRUARY 23, 2005
This SIXTH AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT
AGREEMENT (together with all Exhibits, Schedules and Annexes hereto, this
"Amendment") is among CORRECTIONS CORPORATION OF AMERICA, a Maryland corporation
(the "Borrower"), the Lenders (as defined below), including each Issuing Lender,
DEUTSCHE BANK SECURITIES INC., as Syndication Agent, SOCIETE GENERALE, as
Documentation Agent, and LEHMAN COMMERCIAL PAPER INC., as administrative agent
for the Lenders (in such capacity, the "Administrative Agent").
PRELIMINARY STATEMENTS:
A. The Borrower, the lenders party thereto (the "Lenders"), the
Administrative Agent, Lehman Brothers Inc., as lead arranger and sole
book-running manager, Deutsche Bank Securities Inc. and UBS Warburg LLC, as
co-syndication agents, and Societe Generale, as documentation agent, have
entered into a Third Amended and Restated Credit Agreement, dated as of May 3,
2002 (together with all Annexes, Exhibits and Schedules thereto and as amended,
modified or supplemented from time to time, the "Credit Agreement"; capitalized
terms used and not otherwise defined herein shall have the meanings ascribed to
such terms in the Credit Agreement; terms defined in Section 1 hereof are used
herein as defined therein); and
B. The Borrower desires to amend the Credit Agreement to permit Letters
of Credit to expire after the Revolving Credit Termination Date, and the Agents,
the Issuing Lender and the Lenders have agreed to amend the Credit Agreement to
permit Letters of Credit to expire after the Revolving Credit Termination Date
upon the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. AMENDMENTS TO CREDIT AGREEMENT TO BE EFFECTIVE ON THE SIXTH AMENDMENT
EFFECTIVE DATE.
(a) Section 3.1(a) of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
(a) Subject to the terms and conditions hereof, the Issuing
Lender, in reliance on the agreements of the other Revolving Credit
Lenders set forth in Section 3.4(a), agrees to issue standby letters of
credit ("Letters of Credit") for the account of the Borrower on any
Business Day prior to the date that is five Business Days prior to the
Scheduled Revolving Credit Termination Date in such form as may be
approved from time to time by the Issuing Lender; provided that the
Issuing Lender shall have no obligation to issue any Letter of Credit
if, after giving effect to such issuance, (i) the L/C Obligations would
exceed the L/C Commitment or (ii) the aggregate amount of the Available
Revolving Credit Commitments would be less than zero. Each Letter of
Credit shall (i) be denominated in Dollars and (ii) expire no later
than the earlier of (x) the first anniversary of its date of
issuance and (y) the date that is five Business Days prior to the
Scheduled Revolving Credit Termination Date; provided that any Letter
of Credit with a one-year term may provide for the renewal thereof for
additional one-year periods (which shall in no event extend beyond the
date referred to in clause (y) above). Notwithstanding the foregoing,
the Issuing Lender agrees to issue Letters of Credit with an expiration
date later than the date specified in the immediately preceding
sentence (but no later than one year from the date of issuance thereof)
in reliance upon the Borrower's agreement to cash collateralize such
Letters of Credit in accordance with Section 10.15(c) by the date that
is 30 days prior to the Scheduled Revolving Credit Termination Date,
and the Borrower so agrees to cash collateralize such Letters of Credit
by such date, it being understood that until the Loans, the
Reimbursement Obligations and the other Obligations under the Loan
Documents are paid in full, the Commitments have been terminated and no
other Letters of Credit shall be outstanding, such cash collateral
shall be subject to the rights of each other Lender under Section 10.7.
(b) Section 8(a) of the Credit Agreement is hereby amended and restated
in its entirety to read as follows:
(a) The Borrower shall fail to pay any principal of any Loan
or Reimbursement Obligation when due in accordance with the terms
hereof, or the Borrower shall fail to pay any interest on any Loan or
Reimbursement Obligation, or any Loan Party shall fail to pay any other
amount payable hereunder or under any other Loan Document, within five
days after any such interest or other amount becomes due in accordance
with the terms hereof, or the Borrower shall fail to cash collateralize
any Letter of Credit expiring after the Scheduled Revolving Credit
Termination Date in accordance with Sections 3.1(a) and 10.15(c); or
(c) Section 10.15 of the Credit Agreement is hereby amended by
inserting the following new paragraph (c) at the end thereof:
(c) For purposes of this Agreement and the other Loan
Documents, a Letter of Credit shall be deemed not to be outstanding if
(i) the Loans, the Reimbursement Obligations and the other Obligations
under the Loan Documents shall have been paid in full and the
Commitments have been terminated and (ii) the Borrower has either (x)
supported such Letter of Credit, on terms and conditions reasonably
acceptable to the corresponding Issuing Lender, with another letter of
credit from a financial institution reasonably acceptable to the
Issuing Lender or (y) provided the Issuing Lender with cash collateral
in an amount equal to 105% of the aggregate amount available to be
drawn under such Letter of Credit. The Issuing Lender hereby
acknowledges and agrees that if a Letter of Credit has been supported
with another letter or credit or cash collateralized as provided in
this Section, all obligations of the Lenders with respect to such
Letters of Credit shall terminate, including the obligations of the
Lenders to purchase participations in such Letters of Credit pursuant
to Section 3.4 and the obligations of the Lenders to make Revolving
Loans pursuant to Sections 2.4, 2.5 and 3.5.
2. CONDITIONS TO EFFECTIVENESS. The effectiveness of the amendments contained in
Section 1 of this Amendment are conditioned upon satisfaction of the following
conditions (the date on which all such conditions have been satisfied being
referred to herein as the "Sixth Amendment Effective Date"):
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(a) the Administrative Agent shall have received signed written
authorization from the requisite Lenders to execute this Amendment, and shall
have received counterparts of this Amendment signed by the Borrower, the Issuing
Lender and the other Agents, and counterparts of the consent of the Subsidiary
Guarantors attached hereto as Annex 1 (the "Consent") executed by each of the
Subsidiary Guarantors;
(b) each of the representations and warranties in Section 3 below shall
be true and correct in all material respects on and as of the Sixth Amendment
Effective Date;
(c) the Administrative Agent shall have received payment in immediately
available funds of all expenses incurred by the Administrative Agent (including,
without limitation, legal fees) for which invoices have been presented on or
before the Sixth Amendment Effective Date; and
(d) the Administrative Agent shall have received such other documents,
instruments, certificates, opinions and approvals as it may reasonably request.
3. REPRESENTATIONS AND WARRANTIES. The Borrower represents and warrants to the
Administrative Agent and the Lenders as follows:
(a) Authority. The Borrower has the requisite corporate power and
authority to execute and deliver this Amendment and to perform its obligations
hereunder and under the Credit Agreement (as modified hereby). Each of the
Subsidiary Guarantors has the requisite corporate or other organizational power
and authority to execute and deliver the Consent. The execution, delivery and
performance (i) by the Borrower of this Amendment and the Credit Agreement (as
modified hereby) and the transactions contemplated hereby and thereby and (ii)
by the Subsidiary Guarantors of the Consent, in each case, have been duly
approved by all necessary corporate or other action of such Person, and no other
corporate or other organizational proceedings on the part of each such Person
are necessary to consummate such transactions.
(b) Enforceability. This Amendment has been duly executed and delivered
by the Borrower. The Consent has been duly executed and delivered by each of the
Subsidiary Guarantors. Each of this Amendment and the Consent and, after giving
effect to this Amendment, the Credit Agreement and the other Loan Documents (i)
is the legal, valid and binding obligation of each Loan Party party hereto and
thereto, enforceable against such Loan Party in accordance with its terms,
except as may be limited by laws relating to the enforcement of creditors'
rights and general equitable principles (whether enforcement is sought by
proceedings in equity or at law) and (ii) is in full force and effect. Neither
the execution, delivery or performance of this Amendment, of the Consent or of
the Credit Agreement (as modified hereby), nor the performance of the
transactions contemplated hereby or thereby, will adversely affect the validity,
perfection or priority of the Administrative Agent's Lien on any of the
Collateral or its ability to realize thereon.
(c) Representations and Warranties. After giving effect to this
Amendment, the representations and warranties contained in the Credit Agreement
and the other Loan Documents (other than any such representations and warranties
that, by their terms, are specifically made as of a date other than the date
hereof) are true and correct in all material respects on and as of the date
hereof as though made on and as of the date hereof.
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(d) No Conflicts. Neither the execution and delivery of this Amendment,
the Consent or the Credit Agreement (as modified hereby), nor the consummation
of the transactions contemplated hereby and thereby, nor the performance of and
compliance with the terms and provisions hereof or thereof by any Loan Party
will, at the time of such performance, (a) violate or conflict with any
provision of its articles or certificate of incorporation or bylaws or other
organizational or governing documents of such Person, (b) violate, contravene or
materially conflict with any Requirement of Law or any other law, regulation
(including, without limitation, Regulation U or Regulation X), order, writ,
judgment, injunction, decree or permit applicable to it, except for any
violation, contravention or conflict which could not reasonably be expected to
have a Material Adverse Effect, (c) (i) violate, contravene or conflict with the
contractual provisions of, or cause an event of default under, any Loan Document
or (ii) violate, contravene or conflict with the contractual provisions of, or
cause an event of default under, any other loan agreement, indenture, mortgage,
deed of trust, contract or other agreement or instrument to which it is a party
or by which it may be bound or (d) result in or require the creation of any Lien
(other than those contemplated in or created in connection with the Loan
Documents) upon or with respect to its properties. No consent or authorization
of, filing with, notice to or other act by or in respect of, any Governmental
Authority or any other Person is required in connection with the transactions
contemplated hereby.
(e) No Default. Both before and after giving effect to this Amendment
and the transactions contemplated hereby, no event has occurred and is
continuing that constitutes a Default or Event of Default.
4. REFERENCE TO AND EFFECT ON CREDIT AGREEMENT.
(a) Upon and after the effectiveness of this Amendment, each reference
in the Credit Agreement to "this Agreement", "hereunder", "hereof" or words of
like import referring to the Credit Agreement, and each reference in the other
Loan Documents to "the Credit Agreement", "thereunder", "thereof" or words of
like import referring to the Credit Agreement, shall mean and be a reference to
the Credit Agreement as modified hereby. This Amendment is a Loan Document.
(b) Except as specifically modified above, the Credit Agreement and the
other Loan Documents are and shall continue to be in full force and effect and
are hereby in all respects ratified and confirmed. Without limiting the
generality of the foregoing, the Security Documents and all of the Collateral
described therein do and shall continue to secure the payment of all Obligations
under and as defined therein, in each case as modified hereby.
(c) The execution, delivery and effectiveness of this Amendment shall
not, except as expressly provided herein, operate as a waiver of any right,
power or remedy of any Secured Party under any of the Loan Documents, nor,
except as expressly provided herein, constitute a waiver or amendment of any
provision of any of the Loan Documents.
5. 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 and delivered 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 a signature page to this Amendment by facsimile shall be
effective as delivery of a manually executed counterpart of this Amendment.
6. SEVERABILITY. Any provision of this Amendment that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or
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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.
7. GOVERNING LAW. This Amendment shall be governed by, and construed in
accordance with, the laws of the State of New York.
[Signature page follows]
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed by their respective officers thereunto duly authorized,
as of the date first written above.
CORRECTIONS CORPORATION OF AMERICA,
as Borrower
By: /s/ Irving E. Lingo, Jr.
---------------------------------
Name: Irving E. Lingo, Jr.
Title: Executive Vice President, Chief
Financial Officer
LEHMAN COMMERCIAL PAPER INC.,
as Administrative Agent
By: /s/ Ritam Bhalla
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Name: Ritam Bhalla
Title: Authorized Signatory
DEUTSCHE BANK SECURITIES INC.,
as Syndication Agent
By: /s/ David S. Bailey
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Name: David S. Bailey
Title: Managing Director
SOCIETE GENERALE,
as Documentation Agent
By: /s/ Anne-Marie Dumortier
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Name: Anne-Marie Dumortier
Title: Director
Annex 1
CONSENT OF SUBSIDIARY GUARANTORS
Each of the undersigned is a Subsidiary Guarantor of the
Obligations of the Borrower under the Credit Agreement and hereby (a) consents
to the foregoing Amendment, (b) acknowledges that notwithstanding the execution
and delivery of the foregoing Amendment, the obligations of each of the
undersigned Subsidiary Guarantors are not impaired or affected and all
guaranties given to the holders of Obligations and all Liens granted as security
for the Obligations continue in full force and effect, and (c) confirms and
ratifies its obligations under the Guarantee and Security Agreement and each
other Loan Document executed by it. Capitalized terms used herein without
definition shall have the meanings given to such terms in the Amendment to which
this Consent is attached or in the Credit Agreement referred to therein, as
applicable. This Consent shall be governed by, and construed in accordance with,
the laws of the State of New York.
[Signature page follows]
IN WITNESS WHEREOF, each of the undersigned has executed and
delivered this Consent of Subsidiary Guarantors as of February 23, 2005.
CCA OF TENNESSEE, LLC
PRISON REALTY MANAGEMENT, INC.
TECHNICAL AND BUSINESS INSTITUTE OF
AMERICA, INC.
CCA INTERNATIONAL, INC.
CCA PROPERTIES OF AMERICA, LLC
CCA PROPERTIES OF ARIZONA, LLC
CCA PROPERTIES OF TENNESSEE, LLC
CCA WESTERN PROPERTIES, INC.
By: /s/ John D. Ferguson
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Name: John D. Ferguson
Title: Chief Executive Officer
CCA PROPERTIES OF TEXAS, L.P.
By: /s/ John D. Ferguson
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Name: John D. Ferguson
Title: Chief Executive Officer, CCA
Properties of America, LLC, as
General Partner
TRANSCOR AMERICA LLC
By: /s/ Todd J. Mullenger
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Name: Todd J. Mullenger
Title: Vice President, Treasurer