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EXHIBIT 10.1
EXECUTION COPY
$1,000,000,000
AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of August 4, 1999
among
PRISON REALTY TRUST, INC.
(formerly known as Prison Realty Corporation),
as Borrower,
AND
CERTAIN SUBSIDIARIES OF THE BORROWER
FROM TIME TO TIME PARTY HERETO,
as Guarantors,
THE SEVERAL LENDERS
FROM TIME TO TIME PARTY HERETO,
LEHMAN COMMERCIAL PAPER INC.,
as Administrative Agent,
SOCIETE GENERALE,
as Documentation Agent,
THE BANK OF NOVA SCOTIA,
as Syndication Agent
SOUTHTRUST BANK, N.A.,
as Co-Agent
AND
LEHMAN BROTHERS INC.
as Advisor, as Lead Arranger and as Book Manager
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TABLE OF CONTENTS
Page
Section 1. DEFINITIONS 2
1.1. Definitions 2
1.2. Computation of Time Periods 37
1.3. Accounting Terms 37
1.4. Interrelationship with Original Credit Agreement 38
1.5. Confirmation of Existing Obligations 39
Section 2. CREDIT FACILITIES 39
2.1. Revolving Loans 39
2.2. Letter of Credit Subfacility 41
2.3. Swingline Loan Subfacility 46
2.4. Term Loan 48
2.5. Tranche C Term Loan 50
Section 3. OTHER PROVISIONS RELATING TO CREDIT FACILITIES 52
3.1. Default Rate 52
3.2. Extension and Conversion 52
3.3. Prepayments 53
3.4. Termination and Reduction of Revolving Committed Amount 55
3.5. Fees 56
3.6. Capital Adequacy 57
3.7. Limitation on Eurodollar Loans 58
3.8. Illegality 58
3.9. Requirements of Law 59
3.10. Treatment of Affected Loans 60
3.11. Taxes 60
3.12. Compensation 62
3.13. Pro Rata Treatment 63
3.13A Tranche C Pro Rata Treatment 64
3.14. Sharing of Payments 64
3.15. Payments, Computations, Etc 65
3.16. Evidence of Debt 67
Section 4. GUARANTY 67
4.1. The Guaranty 67
4.2. Obligations Unconditional 68
4.3. Reinstatement 69
4.4. Certain Additional Waivers 69
4.5. Remedies 70
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4.6. Rights of Contribution 70
4.7. Guarantee of Payment; Continuing Guarantee 71
Section 5. CONDITIONS 71
5.1. Conditions to Effectiveness 71
5.2. Conditions to all Extensions of Credit 77
Section 6. REPRESENTATIONS AND WARRANTIES 78
6.1. Financial Condition 78
6.2. No Material Change 78
6.3. Organization and Good Standing 79
6.4. Power; Authorization; Enforceable Obligations 79
6.5. No Conflicts 80
6.6. No Default 80
6.7. Ownership 80
6.8. Indebtedness 80
6.9. Litigation 80
6.10. Taxes 80
6.11. Compliance with Law 81
6.12. ERISA 81
6.13. Subsidiaries 82
6.14. Governmental Regulations, Etc 83
6.15. Purpose of Loans and Letters of Credit 84
6.16. Environmental Matters 84
6.17. Intellectual Property 85
6.18. Solvency 85
6.19. Investments 86
6.20. Location of Collateral 86
6.21. Disclosure 86
6.22. [Intentionally omitted.] 86
6.23. Labor Matters 86
6.24. Year 2000 Compliance 86
6.25. First Priority Lien 87
6.26. Leases 87
Section 7. AFFIRMATIVE COVENANTS 87
7.1. Information Covenants 87
7.2. Preservation of Existence and Franchises 91
7.3. Books and Records 91
7.4. Compliance with Law 92
7.5. Payment of Taxes and Other Indebtedness 92
7.6. Insurance 92
7.7. Maintenance of Property 93
7.8. Performance of Obligations 93
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7.9. Use of Proceeds 94
7.10. Audits/Inspections 94
7.11. Financial Covenants 94
7.12. Additional Credit Parties 95
7.13. Environmental Laws 96
7.14. Collateral 97
7.15. Leases 97
7.16. Year 2000 Compliance 98
7.17. Appraisals 98
7.18. Hedging Agreements 98
Section 8. NEGATIVE COVENANTS 98
8.1. Indebtedness 98
8.2. Liens 100
8.3. Nature of Business 100
8.4. Consolidation, Merger, Dissolution, etc 100
8.5. Asset Dispositions 101
8.6. Investments 101
8.7. Restricted Payments 102
8.8. Prepayments of Indebtedness, etc 103
8.9. Transactions with Affiliates 103
8.10. Fiscal Year; Organizational Documents 104
8.11. Limitation on Restricted Actions 104
8.12. Ownership of Subsidiaries 104
8.13. Sale Leasebacks 105
8.14. No Further Negative Pledges 105
8.15. Transactions with CCA Entities 105
8.16. Speculative Transactions 106
Section 9. EVENTS OF DEFAULT 106
9.1. Events of Default 106
9.2. Acceleration; Remedies 109
Section 10. AGENCY PROVISIONS 110
10.1. Appointment, Powers and Immunities 110
10.2. Reliance by Administrative Agent 111
10.3. Defaults 111
10.4. Rights as a Lender 111
10.5. Indemnification 112
10.6. Non-Reliance on Agents and Other Lenders 112
10.7. Successor Administrative Agent 113
Section 11. MISCELLANEOUS 113
11.1. Notices 113
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11.2. Right of Set-Off; Adjustments 114
11.3. Benefit of Agreement 115
11.3A Tranche C Assignments and Pledges 117
11.4. No Waiver; Remedies Cumulative 117
11.5. Expenses; Indemnification 117
11.6. Amendments, Waivers and Consents 118
11.6A Tranche C Amendments, Waivers and Consents 120
11.7. Counterparts 121
11.8. Headings 121
11.9. Survival 121
11.10. Governing Law; Submission to Jurisdiction; Venue 122
11.11. Severability 122
11.12. Entirety 123
11.13. Binding Effect; Termination 123
11.14. Confidentiality 123
11.15. Conflict 124
11.16. Existing Agreement Superseded 124
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SCHEDULES
Schedule 1.1(a) Existing CCA Entity Agreements
Schedule 1.1(b) Investments
Schedule 1.1(c) Liens
Schedule 2.1(a) Lenders
Schedule 5.1(f)(i) Mortgaged Properties
Schedule 6.9 Certain Litigation
Schedule 6.13 Subsidiaries
Schedule 6.17 Intellectual Property
Schedule 6.20(a) Real Property Locations
Schedule 6.20(b) Personal Property Locations
Schedule 6.20(c) Chief Executive Offices/Principal Places of Business
Schedule 7.6 Insurance
Schedule 8.1 Indebtedness
EXHIBITS
Exhibit 1.1(a) Agecroft Charter
Exhibit 2.1(b)(i) Form of Notice of Borrowing
Exhibit 2.1(e) Form of Revolving Note
Exhibit 2.3(d) Form of Swingline Note
Exhibit 2.4(d) Form of Term Note
Exhibit 2.5(f) Form of Tranche C Term Note
Exhibit 3.2 Form of Notice of Extension/Conversion
Exhibit 3.11(d) Form of Exemption Certificate
Exhibit 7.1(c) Form of Officer's Compliance Certificate
Exhibit 7.1(e) Form of Borrowing Base Certificate
Exhibit 7.12 Form of Joinder Agreement
Exhibit 11.3(b) Form of Assignment and Acceptance
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AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDED AND RESTATED CREDIT AGREEMENT, dated as of August 4, 1999,
by and among PRISON REALTY TRUST, INC. (formerly known as Prison Realty
Corporation), a Maryland corporation (the "Borrower"), the subsidiaries of the
Borrower from time to time party hereto (collectively, the "Subsidiary
Guarantors"), the Lenders (as defined herein), LEHMAN COMMERCIAL PAPER INC.
("LCPI"), as administrative agent for the Lenders (in such capacity, the
"Administrative Agent"), SOCIETE GENERALE, as documentation agent (in such
capacity, the "Documentation Agent"), LEHMAN BROTHERS INC. ("LBI"), as advisor,
book manager and lead arranger (in such capacities, the "Lead Arranger"), THE
BANK OF NOVA SCOTIA, as syndication agent (the "Syndication Agent"), and
SOUTHTRUST BANK, N.A., as Co-Agent (the "Co-Agent"), AMENDS AND RESTATES IN FULL
the Credit Agreement dated as of January 1, 1999 (as heretofore amended,
modified, restated or supplemented from time to time, the "Original Credit
Agreement"), among the Borrower, the subsidiaries of the Borrower party thereto
(the "Original Subsidiary Guarantors"), the banks and other financial
institutions party thereto as lenders (the "Original Lenders"), NATIONSBANK,
N.A. (now known as Bank of America, N.A.), as Administrative Agent for the
Original Lenders (the "Original Administrative Agent"), LCPI, as documentation
agent (the "Original Documentation Agent") and THE BANK OF NOVA SCOTIA, as
syndication agent (the "Original Syndication Agent"); this amendment and
restatement of the Original Credit Agreement, as amended, supplemented, restated
or otherwise modified from time to time, is hereinafter referred to as this
"Credit Agreement."
W I T N E S S E T H
WHEREAS, the Original Lenders previously extended credit to the
Borrower under the Original Credit Agreement;
WHEREAS, the Borrower has requested that the Original Credit Agreement
be amended and restated in full as set forth herein; and
WHEREAS, the Required Lenders under and as defined in the Original
Credit Agreement (the "Amending Lenders") are willing so to amend and restate
the Original Credit Agreement and to continue to extend credit to the Borrower,
upon and subject to the terms and conditions set forth herein, and in connection
therewith (i) the Original Administrative Agent is being replaced by the
Administrative Agent and (ii) the Original Documentation Agent is being replaced
by the Documentation Agent;
WHEREAS, it is the intent of the Borrower, the Original Subsidiary
Guarantors, the Subsidiary Guarantors, the Amending Lenders, the Administrative
Agent, the Documentation Agent, the Syndication Agent, the Co-Agent and the Lead
Arranger that this Credit Agreement amend and restate in its entirety the
Original Credit Agreement and that, from and after the Restatement Effective
Date, the Original Credit Agreement shall be of no force and effect except to
evidence the terms and conditions under which the Borrower heretofore has
incurred obligations and liabilities to the Original Lenders and the Original
Administrative Agent (as evidenced by the Original Credit Agreement and the
Original Administrative Agent's books and records); and
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WHEREAS, this Credit Agreement is made in renewal, amendment,
restatement and modification of, but not in extinguishment or novation of, the
obligations under the Original Credit Agreement.
NOW, THEREFORE, the parties hereto hereby agree to amend and restate
the Original Credit Agreement as follows:
SECTION 1.
DEFINITIONS
1.1. DEFINITIONS.
As used in this Credit Agreement, the following terms shall have the
meanings specified below unless the context otherwise requires:
"Additional Credit Party" means each Person that becomes a
Subsidiary Guarantor after the Restatement Effective Date by execution
of a Joinder Agreement.
"Adjusted Base Rate" means the Base Rate plus the Applicable
Percentage.
"Adjusted Cash Flow" means, with respect to any Real Property,
as of the end of each fiscal quarter of the Consolidated Parties for
the fiscal quarter ending on such date, the lesser of:
(a) the sum of (i) cash lease payments received with
respect to such Real Property for such period under all leases
that comply with Section 7.15 ("Gross Lease Revenues");
provided that, with respect to any Real Property that is not
wholly-owned by the Borrower, the cash lease payments with
respect to such Real Property included in the calculation of
Adjusted Cash Flow hereunder shall be limited to a percentage
of such cash lease payments equal to the lesser of (A) the
Borrower's percentage ownership in such Real Property and (B)
the percentage of such cash lease payments actually received
by the Borrower, less (ii) actual capital expenditures for
maintenance items for such period, with respect to such Real
Property, less (iii) actual management fees paid with respect
to such Real Property during such period, all as determined in
accordance with GAAP, and
(b) the sum of (i) operating income for such period
less (ii) non-cash operating income for such period after
giving effect to the deduction resulting from the
Straight-Lining of Rents less (iii) real estate taxes for such
period less (iv) property insurance premiums for such period
less (v) ground lease payments made with respect to such Real
Property for such period less (vi) a capital reserve equal to
actual capital expenditures for the maintenance, repair and
upkeep of existing properties for such period, less (vii) a
management fee equal to actual management fees paid with
respect to such Real Property during such period, all as
determined in accordance with GAAP.
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"Adjusted Eurodollar Rate" means the Eurodollar Rate plus the
Applicable Percentage.
"Administrative Agent" shall have the meaning assigned to such
term in the preamble hereto, together with any successors or assigns.
"Administrative Agent's Fees" shall have the meaning assigned
to such term in Section 3.5(d).
"Affiliate" means, with respect to any Person, any other
Person (i) directly or indirectly controlling or controlled by or under
direct or indirect common control with such Person or (ii) directly or
indirectly owning or holding five percent (5%) or more of the Capital
Stock in such Person. For purposes of this definition, "control" when
used with respect to any Person means the power to direct the
management and policies of such Person, directly or indirectly, whether
through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative
to the foregoing.
"Agecroft" means Agecroft Properties, Inc., a Tennessee
corporation.
"Agecroft Charter" means the charter of Agecroft attached
hereto as Exhibit 1.1(a).
"Agecroft Investment" means that certain Investment by the
Borrower in Agecroft in connection with the Agecroft Transaction in an
aggregate amount not exceeding $81,000,000 consisting of a combination
of a loan (evidenced by the Agecroft Note) and an equity investment.
"Agecroft Note" means that certain promissory note, in a
maximum principal amount equal to $65,000,000 made by Agecroft in favor
of the Borrower and pledged to the Administrative Agent as Collateral
for the Credit Party Obligations.
"Agecroft Transaction" means the transactions in connection
with the design, development, construction, financing, leasing and
subleasing of a prison facility located in the United Kingdom pursuant
to the Agecroft Transaction Documents.
"Agecroft Transaction Documents" means those documents listed
in the Agecroft Charter and that certain Direct Agreement, dated as of
July 6, 1998, among Agecroft, the Borrower, CCA, Agecroft Prison
Management Limited ("APM") and Her Majesty's Principal Secretary of
State for the Home Department ("HMPS"), that certain Step-In and
Collateral Agreement, dated as of July 6, 1998, among CCA, APM, HMPS
and UK Detention Services Limited, and that certain Access Agreement to
be entered into by and between Agecroft, the Borrower and APM following
completion of construction of the prison facility, all as previously
provided to the Administrative Agent.
"Aggregate Committed Amount" means the aggregate of the
Revolving Committed Amount, the Term Loan Committed Amount and the
Tranche C Term Loan Committed Amount.
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"Aggregate Required Lenders" means, at any time, the Required
Revolving Lenders, the Required Term Lenders and the Required Tranche C
Term Lenders, each voting as a separate class.
"Amending Lenders" shall have the meaning assigned to such
term in the recitals hereto.
"Applicable Lending Office" means, for each Lender, the office
of such Lender (or of an Affiliate of such Lender) as such Lender may
from time to time specify to the Administrative Agent and the Borrower
by written notice as the office by which its Eurodollar Loans are made
and maintained.
"Applicable Percentage" means, for purposes of calculating the
applicable interest rate for any day for any Revolving Loan, the
applicable rate of the Unused Fee for any day for purposes of Section
3.5(b), or the applicable rate of the Standby Letter of Credit Fee for
any day for purposes of Section 3.5(c)(i), the appropriate applicable
percentage set forth below opposite the applicable Senior Debt Rating
then in effect as of the most recent Ratings Date. The Applicable
Percentage shall be determined based on the Senior Debt Rating;
provided that (a) if the Borrower shall not have a rating for its
Senior Debt by S&P and Moody's, then the Applicable Percentages shall
be based on Pricing Level VI and (b) if the Borrower shall have a split
Senior Debt Rating the lower of the two ratings shall apply.
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Applicable Percentage for Revolving Loans
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Applicable Applicable
Pricing S&P Rating Moody's Rating Eurodollar Base Rate Percentage Percentage for
Level Loans Loans for Unused Fee Standby Letter
of Credit Fee
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I > BBB+ > Baa1 2.00% .50% .50% 2.00%
- -
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II > BBB > Baa2 2.25% .75% .55% 2.25%
- -
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III > BBB- > Baa3 2.50% 1.00% .60% 2.50%
- -
-------------------------------------------------------------------------------------------------------------
IV > BB+ > Ba1 3.00% 1.50% .70% 3.00%
- -
-------------------------------------------------------------------------------------------------------------
V > BB > Ba2 3.25% 1.75% .75% 3.25%
- -
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VI < BB < Ba2 3.75% 2.25% .80% 3.75%
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The Applicable Percentages for the Revolving Loans, Unused Fee and
Standby Letter of Credit Fee shall be determined and adjusted on the
date that the Senior Debt Rating changes (each a "Ratings Date"). Each
Applicable Percentage shall be effective from and including one Ratings
Date until but excluding the next Ratings Date. Any adjustment in the
Applicable Percentages for the Revolving Loans and Standby Letter of
Credit Fee shall be applicable to all existing Revolving Loans and
standby Letters of Credit as well as any new Revolving Loans and
standby Letters of Credit made or issued.
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"Asset Disposition" means the disposition of any or all of the
assets (including without limitation the Capital Stock of a Subsidiary)
of any Consolidated Party whether by sale, lease, transfer or otherwise
(including pursuant to any casualty or condemnation event). The term
"Asset Disposition" shall not include (a) the sale of inventory in the
ordinary course of business and (b) any single disposition of assets
which does not yield Net Cash Proceeds of at least $1,000,000, provided
that all such dispositions excluded under this clause (b) shall not in
the aggregate yield Net Cash Proceeds exceeding $3,000,000 during any
fiscal year of the Borrower. Asset Dispositions shall not include (i)
any disposition of cash or Cash Equivalents in the ordinary course of
business, (ii) any lease of Real Property complying with Section 7.15
or (iii) any disposition of property by the Borrower to a Restricted
Subsidiary that is a Credit Party or by a Restricted Subsidiary to the
Borrower or to another Restricted Subsidiary that is a Credit Party.
"Bankruptcy Code" means the Bankruptcy Code in Title 11 of the
United States Code, as amended, modified, succeeded or replaced from
time to time.
"Bankruptcy Event" means, with respect to any Person, the
occurrence of any of the following with respect to such Person: (i) a
court or governmental agency having jurisdiction in the premises shall
enter a decree or order for relief in respect of such Person in an
involuntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or appointing a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or similar
official) of such Person or for any substantial part of its Property or
ordering the winding up or liquidation of its affairs; or (ii) there
shall be commenced against such Person an involuntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter
in effect, or any case, proceeding or other action for the appointment
of a receiver, liquidator, assignee, custodian, trustee, sequestrator
(or similar official) of such Person or for any substantial part of its
Property or for the winding up or liquidation of its affairs, and such
involuntary case or other case, proceeding or other action shall remain
undismissed, undischarged or unbonded for a period of sixty (60)
consecutive days; or (iii) such Person shall commence a voluntary case
under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or consent to the entry of an order for relief in
an involuntary case under any such law, or consent to the appointment
or taking possession by a receiver, liquidator, assignee, custodian,
trustee, sequestrator (or similar official) of such Person or for any
substantial part of its Property or make any general assignment for the
benefit of creditors; or (iv) such Person shall be unable to, or shall
admit in writing its inability to, pay its debts generally as they
become due.
"Base Rate" means, for any day, the rate per annum equal to
the higher of (a) the Federal Funds Rate for such day plus one-half of
one percent (0.5%) and (b) the Prime Rate for such day. Any change in
the Base Rate due to a change in the Prime Rate or the Federal Funds
Rate shall be effective on the effective date of such change in the
Prime Rate or Federal Funds Rate.
"Base Rate Loan" means any Loan bearing interest at a rate
determined by reference to the Base Rate.
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"Borrower" means the Person identified as such in the preamble
hereto, together with any permitted successors and assigns.
"Borrowing Base" means, as of any day, the sum of the
Borrowing Base Values of each Borrowing Base Property, in each case as
set forth in the most recent Borrowing Base Certificate delivered to
the Administrative Agent and the Lenders in accordance with the terms
of Section 7.1(e); provided, however, so long as any First Union
Letters of Credit or NationsBank Letters of Credit are outstanding, the
Borrowing Base shall be deemed reduced by the aggregate face amount of
such First Union Letters of Credit and NationsBank Letters of Credit
that remain outstanding except to the extent any amount borrowed
hereunder (and not repaid) is used to cash collateralize the Borrower's
obligations under the First Union Letters of Credit or the NationsBank
Letters of Credit.
"Borrowing Base Certificate" means a Borrowing Base
Certificate substantially in the form of Exhibit 7.1(e).
"Borrowing Base Properties" means (i) each of the Existing
Properties identified on Schedule 5.1(f)(i) that satisfies each of the
following conditions and (ii) each New Property of a Credit Party that
satisfies each of the following conditions:
(a) The property shall qualify as Eligible Real
Estate.
(b) The Administrative Agent shall have received a
pro forma compliance certificate with respect to the property
which includes an annualized calculation of the projected
quarterly Consolidated Adjusted EBITDA of such property and
the projected quarterly Adjusted Cash Flow of such property in
form and substance satisfactory to the Lenders.
(c) The Administrative Agent shall have received and
be satisfied with, in its sole discretion, the lease or
sub-lease, as appropriate, entered into by the Borrower (as
lessor or sublessor, as applicable) in leasing such property.
(d) The Administrative Agent shall have received, in
form and substance satisfactory to the Administrative Agent, a
fully executed and notarized Mortgage in favor of the
Administrative Agent encumbering the ownership interest of the
Borrower in the property, together with such UCC-1 financing
statements as the Administrative Agent shall deem appropriate
with respect to the property.
(e) The Administrative Agent shall have received, in
form and substance reasonably satisfactory to the
Administrative Agent, an opinion of counsel in the state in
which the property is located with respect to the
enforceability of the form of Mortgage and sufficiency of the
form of UCC-1 financing statements to be recorded or filed in
such state and such other matters as the Administrative Agent
may request, in form and substance reasonably satisfactory to
the Administrative Agent.
(f) The Administrative Agent shall have received, in
form and substance reasonably satisfactory to the
Administrative Agent, a Mortgage Policy issued by the Title
Insurance Company in an amount satisfactory to the
Administrative
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Agent with respect to the property, assuring the
Administrative Agent that the applicable Mortgage creates a
valid and enforceable first priority mortgage lien on the
property, free and clear of all defects and encumbrances
except Permitted Liens, which Mortgage Policy shall contain
such coverage and endorsements as shall be reasonably
satisfactory to the Administrative Agent and for any other
matters that the Administrative Agent may request and provide
affirmative insurance and such reinsurance as the
Administrative Agent may request, all of the foregoing in form
and substance reasonably satisfactory to the Administrative
Agent.
(g) The Administrative Agent shall have received, in
form and substance satisfactory to the Administrative Agent, a
map or plat of a survey of the site of the property certified
to the Administrative Agent and the Title Insurance Company in
a manner satisfactory to them, dated a date satisfactory to
the Administrative Agent and the Title Insurance Company by an
independent professional licensed land surveyor reasonably
satisfactory to the Administrative Agent and the Title
Insurance Company, and otherwise in form and substance
satisfactory to the Administrative Agent.
(h) The Administrative Agent shall have received, in
form and substance reasonably satisfactory to the
Administrative Agent, a current certification from the
Borrower's registered engineer land surveyor in a form
acceptable to the Administrative Agent as to whether any of
the improvements on the property are located within any area
designated by the Director of the Federal Emergency Management
Agency as a "special flood hazard" area and if any
improvements on such parcel are located within a "special
flood hazard" area, evidence of a flood insurance policy from
a company and in an amount satisfactory to the Administrative
Agent for the applicable portion of the premises, naming the
Administrative Agent, for the benefit of the Lenders, as
mortgagee.
(i) The Administrative Agent shall have received, in
form and substance satisfactory to the Administrative Agent, a
copy of the management agreement between the lessee (or
sublessee) of the property and the appropriate governmental
entity (if applicable).
(j) The Administrative Agent shall have received, in
form and substance satisfactory to the Administrative Agent,
(i) for the twelve month period preceding the date of such
property's admittance as a Borrowing Base Property (or if such
property has not been in operation for twelve months, for the
period from the date of its opening through the date of its
admittance as a Borrowing Base Property) historical operating
statements and occupancy reports with respect to such property
(and, if available, historical operating statements and
occupancy reports with respect to such property for the three
year period preceding the date of such property's admittance
as a Borrowing Base Property), together with (ii) operating
statements and occupancy reports with respect to such property
for the first projected year following the property's
admittance as a Borrowing Base Property.
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(k) The Administrative Agent shall have received, in
form and substance satisfactory to the Administrative Agent,
an environmental site assessment report for the property dated
not more than twelve (12) months prior to the date of the date
of the admittance of such property as a Borrowing Base
Property.
(l) With respect to each Real Property owned by the
Borrower and leased to Management Opco, the Administrative
Agent shall have received, in form and substance satisfactory
to the Administrative Agent, a subordination of lease
agreement from Management Opco with respect to such property.
(m) With respect to each Real Property which has been
in operation for at least five (5) years, the Administrative
Agent shall have received, in form and substance satisfactory
to the Administrative Agent, a current engineering report for
the property.
(n) With respect to each New Property, the Borrower
shall, subject to the proviso below, provide the Lenders with
each of the items identified in subsections (b) through (m)
above and the Aggregate Required Lenders shall have approved
the admittance of such New Property as a Borrowing Base
Property; provided, however, a Lender's failure to notify the
Administrative Agent of its objection to the admittance of
such New Property as a Borrowing Base Property within fifteen
(15) days of such Lender's receipt of notice from the
Administrative Agent of its receipt of all of the items
identified in subsections (b) through (m) above shall be
deemed to constitute such Lender's consent to such New
Property's admittance as a Borrowing Base Property. The
Administrative Agent agrees to forward to any Lender copies of
the items identified in Subsections (b) through (m) above upon
the request of such Lender.
Notwithstanding the foregoing, the Credit Parties hereby
acknowledge and agree that (i) any property which fails to maintain an
occupancy rate of at least 75% for two consecutive fiscal quarters
shall no longer be considered a Borrowing Base Property; provided,
however, subject to satisfaction of the conditions set forth in
subsections (a) through (n) above, with respect to any New Property
that does not achieve at least a 75% occupancy level during the six
month period commencing on the date such New Property commences
operations, such New property shall constitute a Borrowing Base
Property during such six month period and 75% of such New Property's
Borrowing Base Value will be included in the Borrowing Base during such
six month period and (ii) the sum of the Borrowing Base Values of the
justice facilities of the Borrower shall not constitute more than five
percent (5%) of the sum of the Borrowing Base Values of the Borrowing
Base Properties. In the event the aggregate value of the justice
facilities of the Borrower included in the Borrowing Base exceeds five
percent (5%) of the Borrowing Base, the Borrowing Base will be reduced
by an amount equal to such excess.
"Borrowing Base Value" means, at any date of determination
with respect to each Borrowing Base Property, an amount for such
Borrowing Base Property equal to the lesser of:
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(a) 45% of the Implied Value of such Borrowing Base
Property.
(b) the amount of indebtedness payments on which
could be covered 2 times by the Adjusted Cash Flow of such
Borrowing Base Property assuming (i) an interest rate equal to
the greater of (A) the Seven Year Treasury Rate plus two
percent (2%) per annum and (B) nine percent (9%) per annum and
(ii) a principal mortgage amortization of 20 years.
For purposes of determining the Borrowing Base Value of any
Borrowing Base Property which has not been operational for four full
fiscal quarters, the Adjusted Cash Flow attributable to such Borrowing
Base Property shall be deemed to be the result obtained by annualizing
the components of the actual Adjusted Cash Flow attributable to such
Borrowing Base Property for the period that such Borrowing Base
Property has been operational.
"Business Day" means a day other than a Saturday, Sunday or
other day on which commercial banks in New York, New York are
authorized or required by law to close, except that, when used in
connection with a Eurodollar Loan, such day shall also be a day on
which dealings between banks are carried on in U.S. dollar deposits in
London, England.
"Business Development Agreement" means the Business
Development Agreement, dated as of May 4, 1999, between the Borrower
and Management Opco.
"Capitalization Rate" means eleven and one-half percent
(11.5%).
"Capital Lease" means, as applied to any Person, any lease of
any Property (whether real, personal or mixed) by that Person as lessee
which, in accordance with GAAP, is or should be accounted for as a
capital lease on the balance sheet of that Person.
"Capital Stock" means (i) in the case of a corporation,
capital stock, (ii) in the case of an association or business entity,
any and all shares, interests, participations, rights or other
equivalents (however designated) of capital stock, (iii) in the case of
a partnership, partnership interests (whether general or limited), (iv)
in the case of a limited liability company, membership interests and
(v) any other interest or participation that confers on a Person the
right to receive a share of the profits and losses of, or distributions
of assets of, the issuing Person.
"Cash Collateral Account" shall have the meaning assigned to
such term in Section 3.3(b).
"Cash Equivalents" means (a) securities issued or directly and
fully guaranteed or insured by the United States of America or any
agency or instrumentality thereof (provided that the full faith and
credit of the United States of America is pledged in support thereof)
having maturities of not more than twelve months from the date of
acquisition, (b) U.S. dollar denominated time deposits and certificates
of deposit of (i) any Lender, (ii) any domestic commercial bank of
recognized standing having capital and
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surplus in excess of $500,000,000 or (iii) any Revolving Lender or any
bank whose short-term commercial paper rating from S&P is at least A-1
or the equivalent thereof or from Moody's is at least P-1 or the
equivalent thereof (any such bank being an "Approved Bank"), in each
case with maturities of not more than 270 days from the date of
acquisition, (c) commercial paper and variable or fixed rate notes
issued by any Approved Bank (or by the parent company thereof) or any
variable rate notes issued by, or guaranteed by, any domestic
corporation rated A-1 (or the equivalent thereof) or better by S&P or
P-1 (or the equivalent thereof) or better by Moody's and maturing
within six months of the date of acquisition, (d) repurchase agreements
entered into by any Person with a bank or trust company (including any
of the Lenders) or recognized securities dealer having capital and
surplus in excess of $500,000,000 for direct obligations issued by or
fully guaranteed by the United States of America in which such Person
shall have a perfected first priority security interest (subject to no
other Liens) and having, on the date of purchase thereof, a fair market
value of at least 100% of the amount of the repurchase obligations and
(e) Investments, classified in accordance with GAAP as current assets,
in money market investment programs registered under the Investment
Company Act of 1940, as amended, which are administered by reputable
financial institutions having capital of at least $500,000,000 and the
portfolios of which are limited to Investments of the character
described in the foregoing subdivisions (a) through (d).
"CCA" means Corrections Corporation of America, a Tennessee
corporation, which was merged with and into the Borrower on December
31, 1998, pursuant to the Merger Agreement.
"CCA Entities" means each of Management Opco, Service Company
A and Service Company B and any Affiliate of any of them (other than
the Borrower or any of its Subsidiaries).
"CCA Entity Transaction" shall have the meaning assigned to
such term in Section 8.15.
"Change of Control" means the occurrence of any of the
following events: (i) any Person or two or more Persons acting in
concert shall have acquired "beneficial ownership," directly or
indirectly, of, or shall have acquired by contract or otherwise, or
shall have entered into a contract or arrangement that, upon
consummation, will result in its or their acquisition of, control over,
Voting Stock of the Borrower (or other securities convertible into such
Voting Stock) representing 9% or more of the combined voting power of
all Voting Stock of the Borrower, (ii) during any period of up to 24
consecutive months (such period commencing at any time on or after the
Original Closing Date), individuals who at the beginning of such 24
month period were directors of the Borrower (together with any new
director whose election by the Borrower's Board of Directors or whose
nomination for election by the Borrower's shareholders was approved by
a vote of at least two-thirds of the directors then still in office who
either were directors at the beginning of such period or whose election
or nomination for election was previously so approved) cease for any
reason to constitute a majority of the directors of the Borrower then
in office, (iii) there shall have occurred under any indenture or other
instrument evidencing any Indebtedness in excess of $1,000,000 any
"change of control" (as defined
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in such indenture or other evidence of Indebtedness) obligating a
Credit Party to repurchase, redeem or repay (or offer to repurchase,
redeem or repay) all or part of the Indebtedness or capital stock
provided for therein, or (iv) any of the Chairman of the Board of
Directors, Chief Executive Officer, President or Chief Development
Officer of the Borrower as of the Original Closing Date ceases to
continue to hold such office or continue with management
responsibilities substantially similar to those existing on the
Original Closing Date and a replacement for such Person reasonably
satisfactory to the Aggregate Required Lenders and possessing
substantially similar qualifications and reputation to the Person being
replaced is not employed by the Borrower within ninety (90) days after
such first Person ceases to hold such office or continue to have such
management responsibilities. As used herein, "beneficial ownership"
shall have the meaning provided in Rule 13d-3 of the Securities and
Exchange Commission under the Securities Act of 1934.
"Closing Date" means the Original Closing Date.
"Co-Agent" shall have the meaning assigned to such term in the
preamble hereto, together with any successors and assigns.
"Code" means the Internal Revenue Code of 1986, as amended,
and any successor statute thereto, as interpreted by the rules and
regulations issued thereunder, in each case as in effect from time to
time. References to sections of the Code shall be construed also to
refer to any successor sections.
"Collateral" means a collective reference to the collateral
which is identified in, and at any time will be covered by, the
Collateral Documents.
"Collateral Documents" means a collective reference to the
Security Agreement, the Pledge Agreement, the Mortgages and such other
documents executed and delivered in connection with the attachment and
perfection of the Administrative Agent's security interests and liens
arising thereunder, including, without limitation, UCC financing
statements and patent and trademark filings.
"Commitment" means the Revolving Commitment, the Swingline
Commitment, the LOC Commitment, the Term Loan Commitment and the
Tranche C Term Loan Commitment.
"Consolidated Adjusted EBITDA" means, for any period, the
amount equal to the sum of (a) Consolidated Net Income for such period,
plus (b) an amount which, in the determination of Consolidated Net
Income for such period, has been deducted for (i) Consolidated Interest
Expense, (ii) total federal, state, local and foreign income, value
added and similar taxes (including the write-off of deferred taxes) and
(iii) depreciation and amortization expense, all as determined in
accordance with GAAP less (c) actual management fees paid by the
Consolidated Parties during such period less (d) Consolidated Capital
Expenditures for such period with respect to Real Properties in
operation less (e) an amount which, in the determination of
Consolidated Net Income for such period, is attributable to interest
that has accrued and has not been paid in cash with
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respect to the Management Opco Note less (f) an amount which, in the
determination of Consolidated Net Income for such period, is
attributable to rent payments earned under the Lease Agreements but not
yet paid in cash, all as determined in accordance with GAAP. For
purposes of calculating the Leverage Ratio, with respect to any Real
Property which has not been operational for an entire twelve month
period, Consolidated Adjusted EBITDA attributable to such Real Property
shall be deemed to be the result obtained by annualizing the components
of the actual Consolidated Adjusted EBITDA attributable to such Real
Property.
"Consolidated Capital Expenditures" means, for any period, all
capital expenditures of the Consolidated Parties for the maintenance,
repair and upkeep of existing properties, determined on a consolidated
basis for such period in accordance with GAAP.
"Consolidated Interest Expense" means, for any period,
interest expense (including the amortization of debt discount and
premium, the amortization of fees (including without limitation any
fees payable in respect of any Hedging Agreement), the interest
component under Capital Leases, the implied interest component under
Synthetic Leases and dividends paid on preferred stock) of the
Consolidated Parties on a consolidated basis for such period, as
determined in accordance with GAAP.
"Consolidated Net Income" means, for any period, net income
(excluding extraordinary items) after taxes for such period of the
Consolidated Parties on a consolidated basis, as determined in
accordance with GAAP.
"Consolidated Net Worth" means, as of any date, shareholders'
equity or net worth of the Consolidated Parties minus the sum of (a)
interest that has accrued and has not been paid in cash on the
Management Opco Note (whether or not such accrued interest has been
added to the principal balance of the Management Opco Note) and (b) the
sum of all rent payments that have been earned under the Lease
Agreements but not paid in cash as a result of an agreement to defer
the payment of such rent until a later date.
"Consolidated Parties" means a collective reference to the
Borrower and its Restricted Subsidiaries, and "Consolidated Party"
means any one of them. For purposes of this Credit Agreement, Service
Company A, Service Company B, Management Opco and any Special
Affiliates of the Borrower shall not be considered a Consolidated
Party, notwithstanding the treatment of such Special Affiliates under
GAAP (including without limitation any requirement that such Special
Affiliates be accounted for as a Subsidiary for purposes of
consolidated financial statements under GAAP).
"Credit Documents" means a collective reference to this Credit
Agreement, the Notes, the LOC Documents, each Joinder Agreement, any
related commitment letters, the Collateral Documents and all other
related agreements and documents issued or delivered hereunder or
thereunder or pursuant hereto or thereto (in each case as the same may
be amended, modified, restated, supplemented, extended, renewed or
replaced from time to time), and "Credit Document" means any one of
them.
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"Credit Parties" means a collective reference to the Borrower
and the Guarantors, and "Credit Party" means any one of them.
"Credit Party Obligations" means, without duplication, (i) all
of the obligations of the Credit Parties to the Lenders (including any
Issuing Lender), the Administrative Agent, the Documentation Agent, the
Syndication Agent, the Co-Agent and the Lead Arranger whenever arising,
under this Credit Agreement, the Notes, the Collateral Documents or any
of the other Credit Documents (including, but not limited to, any
interest accruing after the occurrence of a Bankruptcy Event with
respect to any Credit Party, regardless of whether such interest is an
allowed claim under the Bankruptcy Code) and (ii) all liabilities and
obligations, whenever arising, owing from any Credit Party to any
Lender, or any Affiliate of a Lender, arising under any Hedging
Agreement.
"Debt Service Coverage Ratio" means, as of the end of each
fiscal quarter of the Consolidated Parties for the fiscal quarter
ending on such date, the ratio of (a) the sum of the Adjusted Cash Flow
for each of the Borrowing Base Properties for the applicable period,
minus (in respect of any fiscal quarter ended after June 30, 1999) any
Tenant Incentive Fees incurred or paid by the Borrower during such
period, to (b) Implied Debt Service for the applicable period. The
Adjusted Cash Flow for any fiscal quarter for any Borrowing Base
Property that has been operational for less than the entire fiscal
quarter shall be determined by giving pro forma effect to the
components of Adjusted Cash Flow as if such Borrowing Base Property had
been operational from the first day of such fiscal quarter.
"Default" means any event, act or condition which with notice
or lapse of time, or both, would constitute an Event of Default.
"Defaulting Lender" means, at any time, any Lender that (a)
has failed to make a Loan or purchase a Participation Interest required
pursuant to the terms of this Credit Agreement within one Business Day
of when due, (b) other than as set forth in (a) above, has failed to
pay to the Administrative Agent or any Lender an amount owed by such
Lender pursuant to the terms of this Credit Agreement within one
Business Day of when due, unless such amount is subject to a good faith
dispute or (c) has been deemed insolvent or has become subject to a
bankruptcy or insolvency proceeding or with respect to which (or with
respect to any of assets of which) a receiver, trustee or similar
official has been appointed.
"Documentation Agent" shall have the meaning assigned to such
term in the preamble hereto, together with any successors and assigns.
"Dollars" and "$" means dollars in lawful currency of the
United States of America.
"Domestic Subsidiary" means, with respect to any Person, any
Subsidiary of such Person which is incorporated or organized under the
laws of any State of the United States or the District of Columbia.
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"Duff & Phelps" means Duff & Phelps Credit Rating Co., or any
successor or assignee of the business of such entity in the business of
rating securities.
"Eligible Assignee" means (i) a Lender; (ii) an Affiliate of a
Lender; and (iii) any other Person approved by the Administrative Agent
(such approval not to be unreasonably withheld or delayed) and, unless
an Event of Default has occurred and is continuing at the time any
assignment is effected in accordance with Section 11.3, the Borrower
(such approval not to be unreasonably withheld or delayed by the
Borrower and such approval to be deemed given by the Borrower if no
objection is received by the assigning Lender and the Administrative
Agent from the Borrower within two Business Days after notice of such
proposed assignment has been provided by the assigning Lender to the
Borrower); provided, however, that the approval of the Administrative
Agent and the Borrower with respect to any proposed Eligible Assignee
of a Term Loan or Tranche C Term Loan is not required and provided,
further, that neither the Borrower nor an Affiliate of the Borrower
shall qualify as an Eligible Assignee.
"Eligible Real Estate" means, as of any date of determination,
any correctional, justice or detention property that satisfies the
following criteria: (a) except as provided in clause (c) below, the
property must be located in the United States or a United States
territory, (b) except as provided in clause (c) below, the property
must be wholly owned by the Borrower (which may include a leasehold
property of the Borrower subject to a lease acceptable to the Required
Lenders and the Required Tranche C Term Lenders in their reasonable
discretion), (c) with respect to any New Property, (i) if the property
is not wholly owned by the Borrower, it must be located in the United
States or a United States territory or (ii) if the property is not
located in the United States or a United States territory, it must be
wholly owned by the Borrower; provided that the value of all such
properties included in this clause (c) may not exceed five percent (5%)
of Total Value, (d) the property must be unencumbered other than any
lien securing the Credit Party Obligations, (e) the property must be
free of structural and title defects and have passed a structural
inspection conducted by an architect or engineer engaged by the
Administrative Agent or the Borrower shall have provided to the Lenders
other written evidence of structural integrity with respect to the
property reasonably acceptable in form and substance to the Required
Lenders and the Required Tranche C Term Lenders, (f) the Lenders must
have received an environmental site assessment report for the property
in form and substance reasonably satisfactory to the Required Lenders
and the Required Tranche C Term Lenders dated not more than twelve (12)
months prior to the acquisition of such property by the Borrower, (g)
the property must be fully operating and generating revenue, (h) the
lessee leasing the property from the Borrower must be in compliance
with all material terms of the facility management agreement between
such lessee and the appropriate governmental entity, (i) the Borrower
must have leased the property to a lessee or sublessee (where
applicable) reasonably acceptable to the Required Lenders and the
Required Tranche C Term Lenders pursuant to the terms and conditions of
a lease agreement reasonably acceptable in form and substance to the
Required Lenders and the Required Tranche C Lenders and (j) the
Borrower and lessee or sublessee (where applicable) of the property
must be in compliance with all material terms and conditions contained
in the lease or sublease (where applicable) agreement between the
Borrower and such lessee or sublessee (where applicable). For purposes
of this definition, the parties hereby agree that a Lender's failure to
notify the Administrative Agent of its
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objection to any of the items identified in this definition within
fifteen (15) days of notice from the Administrative Agent of its
receipt of all items identified in clauses (e), (f) and (i) of this
definition shall be deemed to constitute such Lender's approval of such
items. The Administrative Agent agrees to forward to any Lender copies
of the items identified in clauses (e), (f) and (i) upon the request of
such Lender.
"Environmental Laws" means any and all lawful and applicable
Federal, state, local and foreign statutes, laws, regulations,
ordinances, rules, judgments, orders, decrees, permits, concessions,
grants, franchises, licenses, agreements or other governmental
restrictions relating to the environment or to emissions, discharges,
releases or threatened releases of pollutants, contaminants, chemicals,
or industrial, toxic or hazardous substances or wastes into the
environment including, without limitation, ambient air, surface water,
ground water, or land, or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport,
or handling of pollutants, contaminants, chemicals, or industrial,
toxic or hazardous substances or wastes.
"Equity Interests" means Capital Stock and all warrants,
options or other rights to acquire Capital Stock (but excluding any
debt security that is convertible into, or exchangeable for, Capital
Stock).
"Equity Issuance" means any issuance by any Consolidated Party
to any Person which is not a Credit Party of (a) shares of its Capital
Stock, (b) any shares of its Capital Stock pursuant to the exercise of
options or warrants or (c) any shares of its Capital Stock pursuant to
the conversion of any debt securities to equity.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended, and any successor statute thereto, as interpreted by
the rules and regulations thereunder, all as the same may be in effect
from time to time. References to sections of ERISA shall be construed
also to refer to any successor sections.
"ERISA Affiliate" means an entity which is under common
control with any Consolidated Party within the meaning of Section
4001(a)(14) of ERISA, or is a member of a group which includes any
Consolidated Party and which is treated as a single employer under
Sections 414(b) or (c) of the Code.
"ERISA Event" means (i) with respect to any Plan, the
occurrence of a Reportable Event or the substantial cessation of
operations (within the meaning of Section 4062(e) of ERISA); (ii) the
withdrawal by any Consolidated Party or any ERISA Affiliate from a
Multiple Employer Plan during a plan year in which it was a substantial
employer (as such term is defined in Section 4001(a)(2) of ERISA), or
the termination of a Multiple Employer Plan; (iii) the distribution of
a notice of intent to terminate or the actual termination of a Plan
pursuant to Section 4041(a)(2) or 4041A of ERISA; (iv) the institution
of proceedings to terminate or the actual termination of a Plan by the
PBGC under Section 4042 of ERISA; (v) any event or condition which
might constitute grounds under Section 4042 of ERISA for the
termination of, or the appointment of a trustee to administer, any
Plan; (vi) the complete or partial withdrawal of any Consolidated Party
or any ERISA Affiliate from a Multiemployer Plan; (vii) the conditions
for imposition of a
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lien under Section 302(f) of ERISA exist with respect to any Plan; or
(viii) the adoption of an amendment to any Plan requiring the provision
of security to such Plan pursuant to Section 307 of ERISA.
"Eurodollar Loan" means any Loan that bears interest at a rate
based upon the Eurodollar Rate.
"Eurodollar Rate" means, for any Eurodollar Loan for any
Interest Period therefor, the rate per annum (rounded upwards, if
necessary, to the nearest 1/100 of 1%) determined by the Administrative
Agent to be equal to the quotient obtained by dividing (a) the
Interbank Offered Rate for such Eurodollar Loan for such Interest
Period by (b) 1 minus the Eurodollar Reserve Requirement for such
Eurodollar Loan for such Interest Period.
"Eurodollar Reserve Requirement" means, at any time, the
maximum rate at which reserves (including, without limitation, any
marginal, special, supplemental, or emergency reserves) are required to
be maintained under regulations issued from time to time by the Board
of Governors of the Federal Reserve System (or any successor) by member
banks of the Federal Reserve System against "Eurodollar liabilities"
(as such term is used in Regulation D). Without limiting the effect of
the foregoing, the Eurodollar Reserve Requirement shall reflect any
other reserves required to be maintained by such member banks with
respect to (i) any category of liabilities which includes deposits by
reference to which the Adjusted Eurodollar Rate is to be determined, or
(ii) any category of extensions of credit or other assets which include
Eurodollar Loans. The Adjusted Eurodollar Rate shall be adjusted
automatically on and as of the effective date of any change in the
Eurodollar Reserve Requirement.
"Event of Default" shall have the meaning assigned to such
term in Section 9.1.
"Executive Officer" of any Person means any of the chief
executive officer, chief operating officer, president, vice president,
chief financial officer or treasurer of such Person.
"Existing CCA Entity Agreements" means agreements of the CCA
Entities as in effect on the Restatement Effective Date and listed on
Schedule 1.1(a).
"Existing Properties" has the meaning assigned to such term in
Section 5.1(f)(i).
"Fees" means all fees payable pursuant to Section 3.5.
"Federal Funds Rate" means, for any day, the rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) equal to
the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by
Federal funds brokers on such day, as published by the Federal Reserve
Bank of New York on the Business Day next succeeding such day; provided
that (a) if such day is not a Business Day, the Federal Funds Rate for
such day shall be such rate on such transactions on the next preceding
Business Day as so published on the next succeeding Business Day, and
(b) if no such rate is so published on such next succeeding Business
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Day, the Federal Funds Rate for such day shall be the average rate
charged to the Administrative Agent (in its individual capacity) on
such day on such transactions as determined by the Administrative
Agent.
"First Union Letters of Credit" has the meaning assigned to
such term in clause (ix) of the definition of "Permitted Liens."
"Fitch" means Fitch Investors Service, or any successor or
assignee of the business of such entity in the business of rating
securities.
"Foreign Subsidiary" means, with respect to any Person, any
Subsidiary of such Person other than a Domestic Subsidiary; provided,
however, that a Foreign Subsidiary that is treated as a pass-through
entity for United States federal income tax purposes shall be deemed a
Domestic Subsidiary for purposes of this Credit Agreement and the other
Credit Documents while so treated.
"Funds from Operations" for any period, with respect to any
Person, shall have the meaning given to such term, and shall be
calculated in accordance with, standards promulgated by the Board of
Governors of the National Association of Real Estate Investment Trusts
in effect from time to time.
"GAAP" means generally accepted accounting principles in the
United States applied on a consistent basis and subject to the terms of
Section 1.3.
"Governmental Authority" means any Federal, state, local or
foreign court or governmental agency, authority, instrumentality or
regulatory body.
"Gross Lease Revenue" shall have the meaning given to such
term in the definition of Adjusted Cash Flow.
"Guarantors" means a collective reference to each of the
Subsidiary Guarantors, together with their successors and permitted
assigns, and "Guarantor" means any one of them.
"Guaranty Obligations" means, with respect to any Person,
without duplication, any obligations of such Person (other than
endorsements in the ordinary course of business of negotiable
instruments for deposit or collection) guaranteeing or intended to
guarantee any Indebtedness of any other Person in any manner, whether
direct or indirect, and including without limitation any obligation,
whether or not contingent, (i) to purchase any such Indebtedness or any
Property constituting security therefor, (ii) to advance or provide
funds or other support for the payment or purchase of any such
Indebtedness or to maintain working capital, solvency or other balance
sheet condition of such other Person (including without limitation keep
well agreements, maintenance agreements, comfort letters or similar
agreements or arrangements) for the benefit of any holder of
Indebtedness of such other Person, (iii) to lease or purchase Property,
securities or services primarily for the purpose of assuring the holder
of such Indebtedness, or (iv) to otherwise assure or hold harmless the
holder of such Indebtedness against loss in respect thereof. The amount
of any Guaranty Obligation hereunder shall (subject to any
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limitations set forth therein) be deemed to be an amount equal to the
outstanding principal amount of the Indebtedness in respect of which
such Guaranty Obligation is made.
"Hedging Agreements" means any interest rate protection
agreement or foreign currency exchange agreement between the Borrower
and any Lender, or any Affiliate of a Lender.
"Implied Debt Service" means, the scheduled debt payments that
would have been due on the average outstanding loan balance under this
Credit Agreement for the prior fiscal quarter assuming a principal
mortgage amortization of 20 years and assuming an interest rate equal
to the greater of (i) nine percent (9%) per annum and (b) the Seven
Year Treasury Rate plus two percent (2.0%) per annum.
"Implied Value" means, with respect to any Real Property on
any date, an amount equal to the Adjusted Cash Flow of such Real
Property for the four full fiscal quarters most recently ended on or
prior to such date, divided by the Capitalization Rate. For purposes of
determining the Implied Value of any Real Property which has not been
operational for four full fiscal quarters, the Adjusted Cash Flow
attributable to such Real Property shall be deemed to be the result
obtained by annualizing the components of the actual Adjusted Cash Flow
attributable to such Real Property for the period that such Real
Property has been operational.
"Indebtedness" means, with respect to any Person, without
duplication, (a) all obligations of such Person for borrowed money, (b)
all obligations of such Person evidenced by bonds, debentures, notes or
similar instruments, or upon which interest payments are customarily
made, (c) all obligations of such Person under conditional sale or
other title retention agreements relating to Property purchased by such
Person (other than customary reservations or retentions of title under
agreements with suppliers entered into in the ordinary course of
business), (d) all obligations of such Person issued or assumed as the
deferred purchase price of Property or services purchased by such
Person (other than trade debt incurred in the ordinary course of
business and due within six months of the incurrence thereof) which
would appear as liabilities on a balance sheet of such Person, (e) all
obligations of such Person under take-or-pay or similar arrangements or
under commodities agreements, (f) all Indebtedness of others secured by
(or for which the holder of such Indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien on, or payable out
of the proceeds of production from, Property owned or acquired by such
Person, whether or not the obligations secured thereby have been
assumed, (g) all Guaranty Obligations of such Person, (h) the principal
portion of all obligations of such Person under Capital Leases, (i) all
obligations of such Person under Hedging Agreements and similar
arrangements whether or not permitted under this Credit Agreement and
whether or not any Lender or any Affiliate of any Lender is a party
thereto, (j) all obligations of such Person to repurchase any
securities which repurchase obligation is related to the issuance
thereof, (k) the undrawn face amount of all standby letters of credit
issued, trade letters of credit issued or bankers' acceptances
facilities created for the account of such Person and, without
duplication, all drafts drawn thereunder (to the extent unreimbursed),
(l) all preferred Capital Stock issued by such
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Person and required by the terms thereof to be redeemed, or for which
mandatory sinking fund payments are due, by a fixed date occurring less
than twelve (12) years after the Restatement Effective Date, (m) all
other obligations of such person under any arrangement or financing
structure classified as debt (for tax purposes) by any nationally
recognized rating agency, (n) the principal portion of all obligations
of such Person under Synthetic Leases and (o) the Indebtedness of any
partnership in which such Person is a general partner, and the
Indebtedness of any unincorporated joint venture in which such Person
is a joint venturer, to the extent that such Person would, either
pursuant to contract or by operation of law, be liable for such
Indebtedness.
"Intellectual Property" shall have the meaning assigned to
such term in Section 6.17.
"Interbank Offered Rate" means, for any Eurodollar Loan for
any Interest Period therefor, the rate per annum (rounded upwards, if
necessary, to the nearest 1/100 of 1%) appearing on Telerate Page 3750
(or any successor page) as the London interbank offered rate for
deposits in Dollars at approximately 11:00 a.m. (London time) two
Business Days prior to the first day of such Interest Period for a term
comparable to such Interest Period. If for any reason such rate is not
available, the term "Interbank Offered Rate" shall mean, for any
Eurodollar Loan for any Interest Period therefor, the rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) appearing
on Reuters Screen LIBO Page as the London interbank offered rate for
deposits in Dollars at approximately 11:00 a.m. (London time) two
Business Days prior to the first day of such Interest Period for a term
comparable to such Interest Period; provided, however, if more than one
rate is specified on Reuters Screen LIBO Page, the applicable rate
shall be the arithmetic mean of all such rates (rounded upwards, if
necessary, to the nearest 1/100 of 1%).
"Interest Coverage Ratio" means, as of the end of each fiscal
quarter of the Consolidated Parties for the twelve month period ending
on such date, the ratio of Consolidated Adjusted EBITDA for such period
to Consolidated Interest Expense for such period. Notwithstanding the
foregoing, for purposes of calculating the Interest Coverage Ratio as
of the end of any fiscal quarter ending within twelve months of the
Original Closing Date, Interest Coverage Ratio shall mean, the ratio of
Consolidated Adjusted EBITDA for the period from the Original Closing
Date through such applicable fiscal quarter end to Consolidated
Interest Expense for the period from the Original Closing Date through
such applicable fiscal quarter end.
"Interest Payment Date" means (a) as to Base Rate Loans, the
last day of each calendar month, the date of repayment of principal of
such Loan and the Revolving Loan Maturity Date, Term Loan Maturity Date
or Tranche C Term Loan Maturity Date, as applicable, and (b) as to
Eurodollar Loans, the last day of each applicable Interest Period, the
date of repayment of principal of such Loan and the Revolving Loan
Maturity Date, Term Loan Maturity Date or Tranche C Term Loan Maturity
Date, as applicable, and in addition where the applicable Interest
Period for a Eurodollar Loan is greater than three months, then also
the date three months from the beginning of the Interest Period and
each three months thereafter.
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"Interest Period" means, as to Eurodollar Loans, a period of
one, two, three or six months' duration, as the Borrower may elect,
commencing, in each case, on the date of the borrowing (including
continuations and conversions thereof); provided, however, (a) if any
Interest Period would end on a day which is not a Business Day, such
Interest Period shall be extended to the next succeeding Business Day
(except that where the next succeeding Business Day falls in the next
succeeding calendar month, then on the next preceding Business Day),
(b) no Interest Period shall extend beyond the Revolving Loan Maturity
Date, Term Loan Maturity Date or Tranche C Term Loan Maturity Date, as
applicable, (c) with regard to the Term Loans, no Interest Period shall
extend beyond any Principal Amortization Payment Date unless the
portion of the Term Loans comprised of Base Rate Loans together with
the portion of the Term Loans comprised of Eurodollar Loans with
Interest Periods expiring on or prior to such Principal Amortization
Payment Date is at least equal to the amount of such Principal
Amortization Payment due on such date, (d) with regard to the Tranche C
Term Loans, no Interest Period shall extend beyond any Principal
Amortization Payment Date unless the portion of the Tranche C Term
Loans comprised of Base Rate Loans together with the portion of Tranche
C Term Loans comprised of Eurodollar Loans with Interest Periods
expiring on or prior to such Principal Amortization Payment Date is at
least equal to the amount of such Principal Amortization Payment due on
such date and (e) where an Interest Period begins on a day for which
there is no numerically corresponding day in the calendar month in
which the Interest Period is to end, such Interest Period shall end on
the last Business Day of such calendar month.
"Investment" means (a) the acquisition (whether for cash,
property, services, assumption of Indebtedness, securities or
otherwise) of assets, Capital Stock, bonds, notes, debentures,
partnership, joint ventures or other ownership interests or other
securities of any Person or (b) any deposit with, or advance, loan or
other extension of credit to, any Person (other than deposits made in
connection with the purchase of equipment or other assets in the
ordinary course of business) or (c) any other capital contribution to
or investment in any Person, including, without limitation, any
Guaranty Obligations (including any support for a letter of credit
issued on behalf of such Person) incurred for the benefit of such
Person.
"Issuing Lender" means any Revolving Lender selected by the
Borrower with the consent of such Revolving Lender and with the
approval of the Administrative Agent (such approval not to be
unreasonably withheld).
"Issuing Lender Fees" shall have the meaning assigned to such
term in Section 3.5(c)(ii).
"Joinder Agreement" means a Joinder Agreement substantially in
the form of Exhibit 7.12 hereto, executed and delivered by an
Additional Credit Party in accordance with the provisions of Section
7.12.
"Lead Arranger" shall have the meaning assigned to such term
in the preamble hereto, together with any successors and assigns.
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"Lease Agreement" shall have the meaning assigned to such term
in Section 9.1(l).
"Lender" means any of the Persons identified as a "Lender" on
Schedule 2.1(a) hereto, and any Person which may become a Lender by way
of assignment in accordance with the terms hereof, together with their
successors and permitted assigns.
"Letter of Credit" means any letter of credit issued by an
Issuing Lender for the account of the Borrower in accordance with the
terms of Section 2.2.
"Leverage Ratio" means, with respect to the Consolidated
Parties on a consolidated basis as of the last day of any fiscal
quarter, the ratio of (a) Total Indebtedness on the last day of such
fiscal quarter to (b) Consolidated Adjusted EBITDA for the twelve month
period ending on the last day of such fiscal quarter; provided,
however, for purposes of calculating the Leverage Ratio as of the end
of any fiscal quarter ending within twelve months of the Original
Closing Date, Consolidated Adjusted EBITDA for the applicable period
shall be deemed to be the result obtained by annualizing the components
of Consolidated Adjusted EBITDA for the period commencing on the
Original Closing Date and ending as of the end of such fiscal quarter.
"Lien" means any mortgage, pledge, hypothecation, assignment,
deposit arrangement, security interest, encumbrance, lien (statutory or
otherwise), preference, priority or charge of any kind (including any
agreement to give any of the foregoing, any conditional sale or other
title retention agreement, any financing or similar statement or notice
filed under the Uniform Commercial Code as adopted and in effect in the
relevant jurisdiction or other similar recording or notice statute, and
any lease in the nature thereof).
"Loan" or "Loans" means the Revolving Loans, the Term Loans
and/or the Tranche C Term Loans (or a portion of any Revolving Loan,
Term Loan or Tranche C Term Loan bearing interest at the Adjusted Base
Rate or the Adjusted Eurodollar Rate) and/or any Swingline Loans
individually or collectively, as appropriate.
"LOC Commitment" means the commitment of the Issuing Lenders
to issue Letters of Credit, and to honor payment obligations under,
Letters of Credit hereunder in an aggregate face amount at any time
outstanding (together with the amounts of any unreimbursed drawings
thereon) of up to the LOC Committed Amount and with respect to each
Revolving Lender, the commitment of each Revolving Lender to purchase
participation interests in the Letters of Credit.
"LOC Committed Amount" shall have the meaning assigned to such
term in Section 2.2.
"LOC Documents" means, with respect to any Letter of Credit,
such Letter of Credit, any amendments thereto, any documents delivered
in connection therewith, any application therefor, and any agreements,
instruments, guarantees or other documents (whether general in
application or applicable only to such Letter of Credit) governing or
providing for (i) the rights and obligations of the parties concerned
or at risk or (ii) any collateral security for such obligations.
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"LOC Obligations" means, at any time, the sum of (i) the
maximum amount which is, or at any time thereafter may become,
available to be drawn under Letters of Credit then outstanding,
assuming compliance with all requirements for drawings referred to in
such Letters of Credit plus (ii) the aggregate amount of all drawings
under Letters of Credit honored by an Issuing Lender but not
theretofore reimbursed by the Borrower.
"Management Opco" means Corrections Corporation of America
(formerly Correctional Management Services Corporation (and not CCA)),
a Tennessee corporation.
"Management Opco Credit Agreement" means that certain Loan and
Security Agreement, dated as of March 1, 1999, among Management Opco,
Foothill Capital Corporation and the other financial institutions party
thereto, as amended by that certain Amendment Number One to Loan and
Security Agreement, dated June 3, 1999, and as otherwise amended or
modified.
"Management Opco Note" means that certain promissory note
dated December 31, 1998 in the amount of $137,000,000 issued by
Management Opco in favor of CCA and now held by the Borrower as a
result of the Merger, as modified by that certain Note Modification
Agreement, dated March 1, 1999, among Management Opco, the Borrower and
the Original Administrative Agent.
"Master Lease" means that certain Master Agreement to Lease
dated January 1, 1999 between the Borrower and Management Opco, as
amended or modified from time to time as provided herein.
"Material Adverse Effect" means a material adverse effect on
(i) the condition (financial or otherwise), operations, business,
assets or liabilities of the Consolidated Parties taken as a whole or
(ii) the rights and remedies of the Administrative Agent or the other
Secured Parties under the Credit Documents.
"Materials of Environmental Concern" means any gasoline or
petroleum (including crude oil or any fraction thereof) or petroleum
products or any hazardous or toxic substances, materials or wastes,
defined or regulated as such in or under any Environmental Laws,
including, without limitation, asbestos, polychlorinated biphenyls and
urea-formaldehyde insulation.
"Merger" means, collectively, those certain mergers of each of
CCA and PZN with and into the Borrower pursuant to the terms and
conditions of the Merger Agreement, which were consummated on December
31, 1998, and January 1, 1999, respectively.
"Merger Agreement" means that certain Amended and Restated
Agreement and Plan of Merger among the Borrower, PZN and CCA dated
September 29, 1998.
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"Moody's" means Moody's Investors Service, Inc., or any
successor or assignee of the business of such company in the business
of rating securities.
"Mortgage" shall have the meaning given to such term in
Section 5.1(f).
"Mortgage Policy" shall have the meaning given to such term in
Section 5.1(f).
"Multiemployer Plan" means a Plan which is a multiemployer
plan as defined in Sections 3(37) or 4001(a)(3) of ERISA.
"Multiple Employer Plan" means a Plan which any Consolidated
Party or any ERISA Affiliate and at least one employer other than the
Consolidated Parties or any ERISA Affiliate are contributing sponsors.
"NationsBank" means NationsBank, N.A. (now known as Bank of
America, N.A.), and its successors.
"NationsBank Letters of Credit" has the meaning assigned to
such term in clause (ix) of the definition of "Permitted Liens."
"Net Cash Proceeds" means (i) the aggregate cash proceeds
received by the Consolidated Parties in respect of any Equity Issuance
or Asset Disposition, net of (a) direct costs (including, without
limitation, legal, accounting and investment banking fees, and sales
commissions) and (b) taxes paid or payable as a result thereof and (ii)
any cash amounts received (or deemed received) by the Borrower in
repayment of the Agecroft Note; it being understood that "Net Cash
Proceeds" shall include, without limitation, any cash received upon the
sale or other disposition of any non-cash consideration received by the
Consolidated Parties in any Equity Issuance, Asset Disposition or
repayment of the Agecroft Note.
"Net Worth" means, as of any date, shareholders' equity or net
worth of the Borrower minus the sum of (a) interest that has accrued
and has not been paid in cash on the Management Opco Note (whether or
not such accrued interest has been added to the principal balance of
the Management Opco Note) and (b) the sum of all rent payments that
have been earned under the Lease Agreements but not paid in cash as a
result of an agreement to defer the payment of such rent until a later
date.
"New Properties" means any real property asset owned by the
Borrower or any leasehold estate of the Borrower (in each case other
than those real property assets and leasehold estates listed on
Schedule 5.1(f)(i)) which, in either case, qualifies as a parcel of
Eligible Real Estate and satisfies each of the conditions identified in
the definition of "Borrowing Base Properties".
"Non-Conforming Investments" means Investments by a
Consolidated Party in undeveloped land, non-income producing
properties, properties not constituting correctional, detention or
justice facilities or any other investments not related to the
ownership of correctional, justice or detention facilities.
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"Non-Recourse Debt" means Indebtedness (i) as to which neither
the Borrower nor any of its Restricted Subsidiaries (a) provides credit
support of any kind (including any undertaking, agreement or instrument
that would constitute Indebtedness) other than a pledge of the equity
interests of any Unrestricted Subsidiary, (b) is directly or indirectly
liable (as a guarantor or otherwise) other than by virtue of a pledge
of the equity interests of any Unrestricted Subsidiary, or (c)
constitutes the lender; (ii) no default with respect to which
(including any rights that the holders thereof may have to take
enforcement action against any Unrestricted Subsidiary) would permit
(upon notice, lapse of time or both) any holder of any other
Indebtedness (other than the Obligations) of the Borrower or any of its
Restricted Subsidiaries to declare a default on such other Indebtedness
or cause the payment thereof to be accelerated or payable prior to its
stated maturity; and (iii) as to which the lenders thereunder will not
have any recourse to the Capital Stock or assets of the Borrower or any
of its Restricted Subsidiaries (other than the equity interests of any
Unrestricted Subsidiary).
"Non-U.S. Lender" shall have the meaning assigned to such term
in Section 3.11(d).
"Note" or "Notes" means the Revolving Notes, the Swingline
Notes, the Term Notes and/or the Tranche C Term Notes, if any,
individually or collectively, as appropriate.
"Notice of Borrowing" means a written notice of borrowing in
substantially the form of Exhibit 2.1(b)(i), as required by Section
2.1(b)(i) or Section 2.5(b).
"Notice of Extension/Conversion" means the written notice of
extension or conversion in substantially the form of Exhibit 3.2, as
required by Section 3.2.
"Obligations" means, collectively, the Revolving Loans, the
Swingline Loans, the LOC Obligations, the Term Loans and the Tranche C
Term Loans.
"Opco License Agreement" means that certain Service Mark and
Trade Name Use Agreement dated as of December 31, 1998, between CCA (as
predecessor-in-interest to the Borrower) and Management Opco, as
amended or modified from time to time.
"Operating Lease" means, as applied to any Person, any lease
(including, without limitation, leases which may be terminated by the
lessee at any time) of any Property (whether real, personal or mixed)
which is not a Capital Lease other than any such lease in which that
Person is the lessor.
"Original Administrative Agent" shall have the meaning
assigned to such term in the preamble hereto.
"Original Closing Date" shall mean January 1, 1999.
"Original Credit Agreement" shall have the meaning assigned to
such term in the preamble hereto.
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"Original Documentation Agent" shall have the meaning assigned
to such term in the preamble hereto.
"Original Lenders" shall have the meaning assigned to such
term in the preamble hereto.
"Original Subsidiary Guarantors" shall have the meaning
assigned to such term in the preamble hereto.
"Original Syndication Agent" shall have the meaning assigned
to such term in the heading hereof.
"Original Term Lenders" means the Term Lenders under the
Original Credit Agreement immediately prior to the Restatement
Effective Date.
"Other Taxes" shall have the meaning assigned to such term in
Section 3.11.
"Participation Interest" means a purchase by a Lender of a
participation in Letters of Credit or LOC Obligations as provided in
Section 2.2 or in any Loans as provided in Section 3.14.
"PBGC" means the Pension Benefit Guaranty Corporation
established pursuant to Subtitle A of Title IV of ERISA and any
successor thereof.
"Permitted Investments" means Investments which are either (i)
cash and Cash Equivalents; (ii) accounts receivable created, acquired
or made by any Consolidated Party in the ordinary course of business
and payable or dischargeable in accordance with customary trade terms;
(iii) Investments consisting of Capital Stock, obligations, securities
or other property received by any Consolidated Party in settlement of
accounts receivable (created in the ordinary course of business); (iv)
Investments existing as of the Restatement Effective Date and set forth
in Schedule 1.1(b); (v) Investments in any Credit Party; (vi)
Investments consisting of the acquisition of Real Properties, provided
that for any Real Properties located outside of the United States or a
United States territory, the provisions of clause (c) of the definition
of "Eligible Real Estate" are complied with and, if such Investment is
made through a Subsidiary of the Borrower (other than an Unrestricted
Subsidiary), the provisions of Section 7.12 are complied with respect
to such Subsidiary, (vii) Investments subsequent to the Original
Closing Date in Service Company A and Service Company B in an amount
not to exceed $5,000,000 in the aggregate during the term of this
Credit Agreement, (viii) payments to Management Opco arising from the
operation of the Tenant Incentive Agreement, to the extent such
payments would be classified as "Investments" hereunder and (ix) prior
to Agecroft's designation as an Unrestricted Subsidiary hereunder, the
Agecroft Investment.
"Permitted Liens" means:
(i) Liens in favor of the Administrative Agent for the benefit
of the Secured Parties to secure the Credit Party Obligations;
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(ii) Liens (other than Liens created or imposed under ERISA)
for taxes, assessments or governmental charges or levies not yet due or
Liens for taxes being contested in good faith by appropriate
proceedings for which adequate reserves determined in accordance with
GAAP have been established (and as to which the Property subject to any
such Lien is not yet subject to foreclosure, sale or loss on account
thereof);
(iii) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen and suppliers and other Liens
imposed by law or pursuant to customary reservations or retentions of
title arising in the ordinary course of business, provided that such
Liens secure only amounts not yet due and payable or, if due and
payable, are unfiled and no other action has been taken to enforce the
same or are being contested in good faith by appropriate proceedings
for which adequate reserves determined in accordance with GAAP have
been established (and as to which the Property subject to any such Lien
is not yet subject to foreclosure, sale or loss on account thereof);
(iv) Liens (other than Liens created or imposed under ERISA)
incurred or deposits made by any Consolidated Party in the ordinary
course of business in connection with workers' compensation,
unemployment insurance and other types of social security, or to secure
the performance of tenders, statutory obligations, bids, leases,
government contracts, performance and return-of-money bonds and other
similar obligations (exclusive of obligations for the payment of
borrowed money);
(v) Liens in connection with attachments or judgments
(including judgment or appeal bonds) provided that the judgments
secured shall, within 30 days after the entry thereof, have been
discharged or execution thereof stayed pending appeal, or shall have
been discharged within 30 days after the expiration of any such stay;
(vi) easements, rights-of-way, restrictions (including zoning
restrictions), minor defects or irregularities in title and other
similar charges or encumbrances not, in any material respect, impairing
the use of the encumbered Property for its intended purposes;
(vii) leases or subleases granted to others not interfering in
any material respect with the business of any Consolidated Party;
(viii) normal and customary rights of setoff upon deposits of
cash in favor of banks or other depository institutions;
(ix) Liens on cash held by (i) NationsBank, as issuing lender
under the Original Credit Agreement, to secure the Borrower's
obligations in respect of letters of credit issued under the Original
Credit Agreement and outstanding on the Restatement Effective Date (the
"NationsBank Letters of Credit") and (ii) First Union National Bank, as
issuing lender under a predecessor credit agreement to the Original
Credit Agreement, to secure the Borrower's obligations in respect of
letters of credit issued under such predecessor credit agreement and
outstanding on the Restatement Effective Date (the "First Union Letters
of Credit"), in each case so long as such liens are released within
ninety (90) days of the Restatement Effective Date;
(x) Liens existing as of the Original Closing Date and set
forth on Schedule 1.1(c); provided that (a) no such Lien shall at any
time be extended to or cover any Property
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other than the Property subject thereto on the Original Closing Date
and (b) the principal amount of the Indebtedness secured by such Liens
shall not be increased, extended, renewed, refunded or refinanced; and
(xi) Liens on the assets or Capital Stock of any Unrestricted
Subsidiary securing the obligations of such Unrestricted Subsidiary or
any other Unrestricted Subsidiary that owns or is owned by such
Unrestricted Subsidiary.
"Permitted Unsecured Debt" means Indebtedness incurred after
the Restatement Effective Date pursuant to Section 8.1(e) and issued in
a public offering or Rule 144A transaction.
"Permitted Unsecured Debt Documents" means the indenture,
underwriting agreement, purchase agreement, registration rights
agreement and other documentation governing any Permitted Unsecured
Debt.
"Person" means any individual, partnership, joint venture,
firm, corporation, limited liability company, association, trust or
other enterprise (whether or not incorporated) or any Governmental
Authority.
"Plan" means any employee benefit plan (as defined in Section
3(3) of ERISA) which is covered by ERISA and with respect to which any
Consolidated Party or any ERISA Affiliate is (or, if such plan were
terminated at such time, would under Section 4069 of ERISA be deemed to
be) an "employer" within the meaning of Section 3(5) of ERISA.
"Pledge Agreement" means the amended and restated pledge
agreement dated as of the Restatement Effective Date executed in favor
of the Administrative Agent by each of the Credit Parties, as amended,
modified, restated or supplemented from time to time.
"Prime Rate" means the per annum rate of interest established
from time to time by NationsBank as its prime rate, which rate may not
be the lowest rate of interest charged by NationsBank to its customers.
"Principal Amortization Payment" means a principal
amortization payment on the Term Loans or the Tranche C Term Loans, as
set forth in Sections 2.4(b) and 2.5(d), respectively.
"Principal Amortization Payment Date" means the date a
Principal Amortization Payment is due.
"Property" means any interest in any kind of property or
asset, whether real, personal or mixed, or tangible or intangible.
"PZN" means CCA Prison Realty Trust, a Maryland real estate
investment trust, which was merged with and into the Borrower on
January 1, 1999, pursuant to the Merger Agreement.
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"Real Properties" means each of the Existing Properties and
New Properties, and "Real Property" means any one of them.
"Register" shall have the meaning given such term in Section
11.3(c).
"Regulation T, U, or X" means Regulation T, U or X,
respectively, of the Board of Governors of the Federal Reserve System
as from time to time in effect and any successor to all or a portion
thereof.
"REIT" means a real estate investment trust as defined in
Sections 856-860 of the Code.
"Release" means any spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaching, dumping
or disposing into the environment (including the abandonment or
discarding of barrels, containers and other closed receptacles) of any
Materials of Environmental Concern.
"Reportable Event" means any of the events set forth in
Section 4043(c) of ERISA, other than those events as to which the
notice requirement has been waived by regulation.
"Required Lenders" means, at any time, the Required Revolving
Lenders and the Required Term Lenders, each voting as a separate class.
"Required Revolving Lenders" means, at any time, the Revolving
Lenders which are then in compliance with their obligations hereunder
(as determined by the Administrative Agent) and holding in the
aggregate at least 66 2/3% of (i) the Revolving Commitments (and
Participation Interests therein) or (ii) if the Revolving Commitments
have been terminated, the outstanding Revolving Loans and Participation
Interests (including the Participation Interests of the Issuing Lender
in any Letters of Credit).
"Required Term Lenders" means, at any time, the Term Lenders
which are then in compliance with their obligations hereunder (as
determined by the Administrative Agent) and holding in the aggregate at
least 66 2/3% of the outstanding Term Loans.
"Required Tranche C Term Lenders" means, at any time, the
Tranche C Term Lenders which are then in compliance with their
obligations hereunder (as determined by the Administrative Agent) and
holding in the aggregate at least 66 2/3% of the outstanding Tranche C
Term Loans.
"Requirement of Law" means, as to any Person, the articles or
certificate of incorporation and by-laws or other organizational or
governing documents of such Person, and any law, treaty, rule or
regulation or determination of an arbitrator or a court or other
Governmental Authority, in each case applicable to or binding upon such
Person or any of its material property is subject.
"Restatement Effective Date" means the first date on which all
of the conditions precedent set forth in Section 5.1 have been
satisfied.
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"Restricted Payment" means (i) any dividend or other payment
or distribution, direct or indirect, on account of any shares of any
class of Capital Stock of any Consolidated Party, now or hereafter
outstanding (including without limitation any payment in connection
with any merger or consolidation involving any Consolidated Party), or
to the direct or indirect holders of any shares of any class of Capital
Stock of any Consolidated Party, now or hereafter outstanding, in their
capacity as such (other than dividends or distributions payable in the
same class of Capital Stock of the applicable Person or to any Credit
Party (directly or indirectly through Subsidiaries), (ii) any
redemption, retirement, sinking fund or similar payment, purchase or
other acquisition for value, direct or indirect, of any shares of any
class of Capital Stock of any Consolidated Party, now or hereafter
outstanding and (iii) any payment made to retire, or to obtain the
surrender of, any outstanding warrants, options or other rights to
acquire shares of any class of Capital Stock of any Consolidated Party,
now or hereafter outstanding.
"Restricted Subsidiary" means, with respect to any Person, any
Subsidiary of such Person that is not an Unrestricted Subsidiary.
"Revolving Commitment" means, with respect to each Revolving
Lender, the commitment of such Revolving Lender in an aggregate
principal amount at any time outstanding of up to such Revolving
Lender's Revolving Commitment Percentage of the Revolving Committed
Amount, (i) to make Revolving Loans in accordance with the provisions
of Section 2.1(a) and (ii) to purchase Participation Interests in
Letters of Credit in accordance with the provisions of Section 2.2(c).
"Revolving Commitment Percentage" means, for any Revolving
Lender, the percentage identified as its Revolving Commitment
Percentage on Schedule 2.1(a), as such percentage may be modified in
connection with any assignment made in accordance with the provisions
of Section 11.3.
"Revolving Committed Amount" means FOUR HUNDRED MILLION
DOLLARS ($400,000,000) or such lesser amount as the Revolving Committed
Amount may be reduced from time to time pursuant to Section 3.4.
"Revolving Lender" means Lenders holding Revolving
Commitments, as identified on Schedule 2.1(a) and their successors and
assigns.
"Revolving Loan Maturity Date" means January 1, 2002.
"Revolving Loans" shall have the meaning assigned to such term
in Section 2.1(a).
"Revolving Note" means a promissory note of the Borrower in
favor of a Revolving Lender evidencing the Revolving Loans provided by
such Lender pursuant to Section 2.1, as such promissory note may be
amended, modified, restated, supplemented, extended, renewed or
replaced from time to time.
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"Revolving Obligations" means, collectively, the Revolving
Loans, the Swingline Loans and the LOC Obligations.
"S&P" means Standard & Poor's Ratings Group, a division of
McGraw Hill, Inc., or any successor or assignee of the business of such
division in the business of rating securities.
"Sale and Leaseback Transaction" means any direct or indirect
arrangement with any Person or to which any such Person is a party,
providing for the leasing to any Consolidated Party of any Property,
whether owned by such Consolidated Party as of the Original Closing
Date or later acquired, which has been or is to be sold or transferred
by such Consolidated Party to such Person or to any other Person from
whom funds have been, or are to be, advanced by such Person on the
security of such Property.
"Secured Parties" means, collectively, the Administrative
Agent, the Lenders (including, without limitation, any Issuing Lender
and any Affiliate of any Lender which has entered into a Hedging
Agreement with any Credit Party), the Documentation Agent, the
Syndication Agent, the Co-Agent and the Lead Arranger and "Secured
Party" means any one of them.
"Security Agreement" means the amended and restated security
agreement dated as of the Restatement Effective Date executed in favor
of the Administrative Agent by each of the Credit Parties, as amended,
modified, restated or supplemented from time to time.
"Senior Debt" shall have the meaning given such term in the
definition of Senior Debt Rating.
"Senior Debt Rating" means the publicly announced ratings by
S&P and Moody's for the senior secured (non-credit enhanced) long term
debt of the Borrower ("Senior Debt").
"Senior Notes" means the Borrower's $100,000,000 in principal
amount of 12% Senior Notes, due 2006 (the "Initial Senior Notes"), and
the senior notes of the Borrower, having the same terms as the Initial
Senior Notes, issued in exchange for the Initial Senior Notes as
contemplated by the Senior Notes Documents.
"Senior Notes Documents" means the Senior Notes Indenture, the
Underwriting Agreement and the Senior Notes, each as in effect on the
Restatement Effective Date.
"Senior Notes Indenture" means the Indenture, dated as of June
10, 1999, among the Borrower and State Street Bank and Trust Company,
as trustee (the "Trustee"), as supplemented by that certain First
Supplemental Indenture, dated as of June 11, 1999, among the Borrower
and the Trustee, pursuant to which the Senior Notes are issued.
"Service Company A" means Prison Management Services, Inc., a
Tennessee corporation.
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"Service Company A License Agreement" means that certain
Service Mark and Trade Name Use Agreement dated as of December 31, 1998
between Service Company A and Management Opco, as amended or modified
from time to time.
"Service Company B" means Juvenile and Jail Facility
Management Services, Inc., a Tennessee corporation.
"Service Company B License Agreement" means that certain
Service Mark and Trade Name Use Agreement dated as of December 31, 1998
between Service Company B and Management Opco, as amended or modified
from time to time.
"Services Agreement" means the Amended and Restated Services
Agreement, dated as of March 5, 1999, between the Borrower and
Management Opco.
"Seven Year Treasury Rate" means, for any date, a rate of
interest equal to the yield to maturity for actively traded U.S.
Treasury securities as determined by the Administrative Agent prior to
9:00 a.m. New York City time on such date (based on the offer price for
U.S. Treasury securities on such day as indicated on page 5 of the
so-called "Telerate Screen") having a term to maturity as closely
approximating seven (7) years as possible.
"Single Employer Plan" means any Plan which is covered by
Title IV of ERISA, but which is not a Multiemployer Plan or a Multiple
Employer Plan.
"Solvent" or "Solvency" means, with respect to any Person as
of a particular date, that on such date (i) such Person is able to
realize upon its assets and pay its debts and other liabilities,
contingent obligations and other commitments as they mature in the
normal course of business, (ii) such Person does not intend to, and
does not believe that it will, incur debts or liabilities beyond such
Person's ability to pay as such debts and liabilities mature in their
ordinary course, (iii) such Person is not engaged in a business or a
transaction, and is not about to engage in a business or a transaction,
for which such Person's Property would constitute unreasonably small
capital after giving due consideration to the prevailing practice in
the industry in which such Person is engaged or is to engage, (iv) the
fair value of the Property of such Person is greater than the total
amount of liabilities, including, without limitation, contingent
liabilities, of such Person and (v) the present fair salable value of
the assets of such Person is not less than the amount that will be
required to pay the probable liability of such Person on its debts as
they become absolute and matured. In computing the amount of contingent
liabilities at any time, it is intended that such liabilities will be
computed at the amount which, in light of all the facts and
circumstances existing at such time, represents the amount that can
reasonably be expected to become an actual or matured liability.
"Special Affiliate" means any corporation, association or
other business entity formed for the purpose of earning income not
qualified as "rents from real property" under applicable provisions of
the Code, in which the Borrower owns substantially all of the economic
interest but less than 10% of the voting interests, and the remaining
economic and voting interests are subject to restrictions requiring
that ownership of such interests be held by officers, directors or
employees of the Borrower or any non-affiliated
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third parties. Service Company A and Service Company B are each Special
Affiliates of the Borrower.
"Standby Letter of Credit Fee" shall have the meaning assigned
to such term in Section 3.5(c)(i).
"Straight-Lining of Rents" means, with respect to any lease,
the method by which rent received with respect to such lease is
considered earned equally over the term of such lease despite the
existence of (i) any free rent periods under such lease or (ii) any
rent step-up provisions under such lease.
"Subsidiary" means, as to any Person at any time, (a) any
corporation more than 50% of whose Capital Stock of any class or
classes having by the terms thereof ordinary voting power to elect a
majority of the directors of such corporation (irrespective of whether
or not at such time, any class or classes of such corporation shall
have or might have voting power by reason of the happening of any
contingency) is at such time owned by such Person directly or
indirectly through Subsidiaries, and (b) any partnership, association,
joint venture or other entity of which such Person directly or
indirectly through Subsidiaries owns at such time more than 50% of the
Capital Stock.
"Subsidiary Guarantor" means each of the Persons identified as
a "Subsidiary Guarantor" on the signature pages hereto and each
Additional Credit Party which may hereafter execute a Joinder
Agreement, together with their successors and permitted assigns, and
"Subsidiary Guarantor" means any one of them.
"Swingline Commitment" means the commitment of the Swingline
Lender to make Swingline Loans in an aggregate principal amount at any
time outstanding of up to the Swingline Committed Amount.
"Swingline Committed Amount" shall have the meaning assigned
to such term in Section 2.3(a).
"Swingline Lender" means Lehman Commercial Paper Inc.
"Swingline Loan" shall have the meaning assigned to such term
in Section 2.3(a).
"Swingline Note" means a promissory note of the Borrower in
favor of the Swingline Lender in the original principal amount of
$25,000,000, as such promissory note may be amended, modified, restated
or replaced from time to time.
"Syndication Agent" shall have the meaning assigned to such
term in the heading hereof, together with any successors and assigns.
"Synthetic Lease" means any synthetic lease, tax retention
operating lease, off-balance sheet loan or similar off-balance sheet
financing product where such transaction is considered borrowed money
indebtedness for tax purposes but is classified as an Operating Lease
for purposes of GAAP.
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"Taxes" shall have the meaning assigned to such term in
Section 3.11.
"Tenant Incentive Agreement" means the Amended and Restated
Tenant Incentive Agreement, dated as of May 4, 1999, between the
Borrower and Management Opco.
"Tenant Incentive Fees" shall mean the fees payable by the
Borrower to Management Opco pursuant to the Tenant Incentive Agreement.
"Term Lenders" means Lenders holding Term Loan Commitments, as
identified on Schedule 2.1(a) and their successors and assigns.
"Term Loan" shall have the meaning assigned to such term in
Section 2.4(a).
"Term Loan Committed Amount" means TWO HUNDRED FIFTY MILLION
DOLLARS ($250,000,000).
"Term Loan Commitment" means, with respect to each Term
Lender, the commitment of such Term Lender to make its portion of the
Term Loan in a principal amount equal to such Lender's Term Loan
Commitment Percentage (if any) of the Term Loan Committed Amount.
"Term Loan Commitment Percentage" means, for any Term Lender,
the percentage identified as its Term Loan Commitment Percentage on
Schedule 2.1(a), as such percentage may be modified in connection with
any assignment made in accordance with the provisions of Section 11.3.
"Term Loan Maturity Date" means December 31, 2002.
"Term Loans" shall have the meaning assigned to such term in
Section 2.4(a).
"Term Note" means a promissory note of the Borrower in favor
of a Term Lender evidencing the Term Loans provided by such Lender
pursuant to Section 2.4, as such promissory note may be amended,
modified, restated, supplemented, extended, renewed or replaced from
time to time.
"Title Insurance Company" shall have the meaning given to such
term in Section 5.1(f).
"Total Assets" means the total assets of the Consolidated
Parties on a consolidated basis, as determined in accordance with GAAP.
"Total Capitalization" means, as of any date of determination,
the sum of (a) Total Indebtedness plus (b) the shareholders' equity or
net worth of the Consolidated Parties on a consolidated basis, as
determined in accordance with GAAP.
"Total Indebtedness" means, as of any date of determination,
all Indebtedness (other than under clause (i) of the definition
thereof) of the Consolidated Parties on a consolidated basis, as
determined in accordance with GAAP.
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"Total Value" means, as of any date of determination, an
amount equal to the sum of (a) the aggregate Implied Value of all Real
Properties plus (b) one hundred percent (100%) of all cash and Cash
Equivalents of the Consolidated Parties.
"Trade Letter of Credit Fee" shall have the meaning assigned
to such term in Section 3.5(c)(ii).
"Trade Name Use Agreement" means the Service Mark and Trade
Name Use Agreement, dated as of December 31, 1998, between the Borrower
(as successor-in-interest to CCA) and Management Opco.
"Tranche C Commitment Percentage" means, for any Tranche C
Term Lender, the percentage identified as its Tranche C Term Loan
Commitment Percentage on Schedule 2.1(a), as such percentage may be
modified in connection with any assignment made in accordance with the
provisions of Section 11.3.
"Tranche C Term Lenders" means Lenders holding Tranche C Term
Loan Commitments, as identified on Schedule 2.1(a), and their
successors and assigns.
"Tranche C Term Loan" shall have the meaning assigned to such
term in Section 2.5(a).
"Tranche C Term Loan Committed Amount" means THREE HUNDRED
FIFTY MILLION DOLLARS ($350,000,000).
"Tranche C Term Loan Commitment" means, with respect to each
Tranche C Term Lender, the commitment of such Tranche C Term Lender to
make its portion of the Tranche C Term Loan in a principal amount equal
to such Lenders' Tranche C Term Loan Commitment Percentage of the
Tranche C Term Loan Committed Amount.
"Tranche C Term Loan Maturity Date" means December 31, 2002.
"Tranche C Term Loans" shall have the meaning assigned to such
term in Section 2.5(a).
"Tranche C Term Note" means a promissory note of the Borrower
in favor of a Tranche C Term Lender evidencing the Tranche C Term Loans
provided by such Lender pursuant to Section 2.5, as such promissory
note may be amended, modified, restated, supplemented, extended,
renewed or replaced from time to time.
"Underwriting Agreement" means the Underwriting Agreement
among the Borrower and LBI.
"Unrestricted Subsidiary" means any Subsidiary of the Borrower
that the Borrower notifies the Administrative Agent in writing is an
"Unrestricted Subsidiary", but only to the extent that such Subsidiary
(a) has no Indebtedness other than Non-
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Recourse Debt; (b) is not a party to any agreement, contract,
arrangement or understanding with the Borrower or any Restricted
Subsidiary of the Borrower not permitted by Section 8.9; (c) is a
Person with respect to which neither the Borrower nor any of its
Restricted Subsidiaries has any direct or indirect obligation (x) to
subscribe for additional equity interests in such Person, except with
respect to Investments permitted under Section 8.6(iii), (y) to
maintain or preserve such Person's financial condition or to cause such
Person to achieve any specified levels of operating results or (z) to
otherwise guarantee performance or payment; and (d) has not guaranteed
or otherwise directly or indirectly provided credit support for any
Indebtedness of the Borrower or any of its Restricted Subsidiaries. If,
at any time, any Unrestricted Subsidiary would fail to meet the
foregoing requirements as an Unrestricted Subsidiary (or is
redesignated by the Borrower as a Restricted Subsidiary), it shall
thereafter cease to be an Unrestricted Subsidiary for purposes of this
Credit Agreement, any Indebtedness of such Subsidiary shall be deemed
to be incurred by a Restricted Subsidiary of the Borrower as of such
date and any Investments in such Subsidiary shall be deemed to be
Investments in a Restricted Subsidiary of the Borrower as of such date
(and, if such Indebtedness or Investments are not permitted to be
incurred hereunder the Borrower shall be in default under this Credit
Agreement). At the time of any designation by the Borrower of any
Restricted Subsidiary as an Unrestricted Subsidiary, such designation
shall be deemed (A) an Investment in an Unrestricted Subsidiary in an
amount equal to the sum of (i) the net worth of such Restricted
Subsidiary immediately prior to such designation (such net worth to be
calculated without regard to any Guarantee Obligation of such
Restricted Subsidiary with respect to the Obligations) and (ii) the
aggregate principal amount of any Indebtedness owed by such designated
Restricted Subsidiary to the Borrower or any other Restricted
Subsidiary immediately prior to such designation, all calculated,
except as set forth in the parenthetical to clause (i), on a
consolidated basis in accordance with GAAP and (B) an Asset Disposition
(unless the amount of such Investment would not constitute an Asset
Disposition because the amount thereof would be within the limitations
set forth in the second sentence of the definition of Asset Disposition
in this Section 1.1).
"Unused Fee" shall have the meaning assigned to such term in
Section 3.5(b).
"Unused Fee Calculation Period" shall have the meaning
assigned to such term in Section 3.5(b).
"Unused Revolving Committed Amount" means, for any period, the
amount by which (a) the then applicable Revolving Committed Amount
exceeds (b) the daily average sum for such period of (i) the
outstanding aggregate principal amount of all Revolving Loans plus (ii)
the outstanding aggregate principal amount of all LOC Obligations.
"Voting Stock" means, with respect to any Person, Capital
Stock issued by such Person the holders of which are ordinarily, in the
absence of contingencies, entitled to vote for the election of
directors (or persons performing similar functions) of such Person,
even though the right so to vote has been suspended by the happening of
such a contingency.
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"Wholly Owned Subsidiary" of any Person means any Subsidiary
100% of whose Voting Stock is at the time owned by such Person directly
or indirectly through other Wholly Owned subsidiaries.
1.2. COMPUTATION OF TIME PERIODS.
For purposes of computation of periods of time hereunder, the word
"from" means "from and including" and the words "to" and "until" each mean "to
but excluding."
1.3. ACCOUNTING TERMS.
Except as otherwise expressly provided herein, all accounting terms
used herein shall be interpreted, and all financial statements and certificates
and reports as to financial matters required to be delivered to the Lenders
hereunder shall be prepared, in accordance with GAAP applied on a consistent
basis. All calculations made for the purposes of determining compliance with
this Credit Agreement shall (except as otherwise expressly provided herein) be
made in accordance with GAAP applied on a basis consistent with the most recent
annual or quarterly financial statements delivered pursuant to Section 7.1 (or,
prior to the delivery of the first financial statements pursuant to Section 7.1,
consistent with the financial statements as at December 31, 1997); provided,
however, if there occurs any revision in GAAP or the rules promulgated
thereunder, then such calculations shall be made on a basis consistent with such
revision, unless the Borrower or the Required Lenders or the Required Tranche C
Term Lenders shall object in writing to the Administrative Agent not later than
60 days after delivery of the first financial statements pursuant to Section
7.1, after the effectiveness of such revision, in which case the Borrower shall
continue to make all calculations in accordance with GAAP and the rules and
regulations promulgated thereunder as in effect immediately prior to the
effectiveness of such revision.
1.4. INTERRELATIONSHIP WITH ORIGINAL CREDIT AGREEMENT.
(a) As stated in the preamble hereof, this Credit Agreement is
intended to amend and restate the provisions of the Original Credit
Agreement and, notwithstanding any substitution of Notes as of the
Restatement Effective Date, except as expressly modified herein, (x)
all of the terms and provisions of the Original Credit Agreement shall
continue to apply for the period prior to the Restatement Effective
Date, including any determinations of payment dates, interest rates,
Events of Default or any amount that may be payable to the Original
Administrative Agent or the Original Lenders (or their assignees or
replacements hereunder), and (y) the obligations under the Original
Credit Agreement shall continue to be paid or prepaid on or prior to
the Restatement Effective Date, and shall from and after the
Restatement Effective Date continue to be owing and be subject to the
terms of this Credit Agreement. All references in the Notes and the
other Credit Documents to (i) the Original Credit Agreement or the
"Credit Agreement" shall be deemed to include references to this Credit
Agreement and (ii) the "Lenders" or a "Lender" or to the
"Administrative Agent" shall mean such terms as defined in this Credit
Agreement. As to all periods occurring on or after the Restatement
Effective Date, all of the covenants set forth in the Original Credit
Agreement shall be of no further force and effect, it being understood
that all obligations of the Borrower under the Original Credit
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Agreement shall be governed by this Credit Agreement from and after the
Restatement Effective Date.
(b) The Borrower, the Agents and the Lenders acknowledge and
agree that all principal, interest, fees, costs and reimbursable
expenses accruing or arising under or in connection with the Original
Credit Agreement which remain unpaid and outstanding as of the
Restatement Effective Date shall be and remain outstanding and payable
as an obligation under this Credit Agreement and the other Credit
Documents; provided that no Lender hereunder which was not an Original
Lender shall be liable for any obligation or indemnification of Lenders
under the Original Credit Agreement.
1.5. CONFIRMATION OF EXISTING OBLIGATIONS.
The Borrower hereby reaffirms and admits the validity and
enforceability of this Credit Agreement and the other Credit Documents and all
of its obligations hereunder and thereunder and agrees and admits that, as of
the date hereof, it has no defenses to, or offsets or counterclaim against, any
of its obligations to the Agents or any Lender under the Credit Documents of any
kind whatsoever.
SECTION 2.
CREDIT FACILITIES
2.1. REVOLVING LOANS.
(a) Revolving Commitment. To the extent any Revolving Loans
(as defined below) are outstanding under the Original Credit Agreement
on the Restatement Effective Date, such Revolving Loans shall be deemed
to constitute Revolving Loans outstanding hereunder from and after the
Restatement Effective Date. In addition, subject to the terms and
conditions hereof and in reliance upon the representations and
warranties set forth herein, each Revolving Lender severally agrees to
make available to the Borrower such Revolving Lender's Revolving
Commitment Percentage of revolving credit loans requested by the
Borrower in Dollars ("Revolving Loans") from time to time from the
Restatement Effective Date until the Revolving Loan Maturity Date, or
such earlier date on which the Revolving Commitments shall have been
terminated as provided herein; provided, however, that (i) with regard
to the Lenders collectively, the aggregate principal amount of the
Obligations outstanding shall not exceed the lesser of (A) the
Aggregate Committed Amount and (B) the Borrowing Base; and (ii) with
regard to each Revolving Lender individually, the amount of such
Revolving Lender's Revolving Commitment Percentage of the Revolving
Obligations outstanding shall not exceed such Revolving Lender's
Revolving Commitment Percentage of the Revolving Committed Amount.
Revolving Loans may consist of Base Rate Loans or Eurodollar Loans, or
a combination thereof, as the Borrower may request; provided, however,
that no more than six Eurodollar Loans shall be outstanding under this
Section 2.1 at any time (it being understood that, for purposes hereof,
Eurodollar Loans with different Interest Periods shall be considered as
separate Eurodollar Loans, even if they begin on the same date,
although borrowings, extensions and conversions may, in accordance with
the provisions
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hereof, be combined at the end of existing Interest Periods to
constitute a new Eurodollar Loan with a single Interest Period).
Revolving Loans hereunder may be repaid and reborrowed in accordance
with the provisions hereof.
(b) Revolving Loan Borrowings.
(i) Notice of Borrowing. The Borrower shall request a
Revolving Loan borrowing by a written Notice of Borrowing (or
telephonic notice promptly confirmed by a Notice of Borrowing)
to the Administrative Agent not later than 11:00 A.M. (New
York City time) on the Business Day prior to the date of the
requested borrowing in the case of Base Rate Loans, and on the
third Business Day prior to the date of the requested
borrowing in the case of Eurodollar Loans. Each such Notice of
Borrowing shall be irrevocable and shall specify (A) that a
Revolving Loan is requested, (B) the date of the requested
borrowing (which shall be a Business Day), (C) the aggregate
principal amount to be borrowed, and (D) whether the borrowing
shall be comprised of Base Rate Loans, Eurodollar Loans or a
combination thereof, and if Eurodollar Loans are requested,
the Interest Period(s) therefor. If the Borrower shall fail to
specify in any such Notice of Borrowing (I) an applicable
Interest Period in the case of a Eurodollar Loan, then such
notice shall be deemed to be a request for an Interest Period
of one month, or (II) the type of Revolving Loan requested,
then such notice shall be deemed to be a request for a Base
Rate Loan hereunder. The Administrative Agent shall give
notice to each Revolving Lender promptly upon receipt of each
Notice of Borrowing pursuant to this Section 2.1(b)(i), the
contents thereof and each such Revolving Lender's share of any
borrowing to be made pursuant thereto.
(ii) Minimum Amounts. Each Eurodollar Loan or Base
Rate Loan that is a Revolving Loan shall be in a minimum
aggregate principal amount of $10,000,000 and integral
multiples of $1,000,000 in excess thereof (or the remaining
amount of the Revolving Committed Amount, if less).
(iii) Advances. Each Revolving Lender will make its
Revolving Commitment Percentage of each Revolving Loan
borrowing available to the Administrative Agent for the
account of the Borrower as specified in Section 3.15(a), or in
such other manner as the Administrative Agent may specify in
writing, by 1:00 P.M. (New York City time) on the date
specified in the applicable Notice of Borrowing in Dollars and
in funds immediately available to the Administrative Agent.
Such borrowing will then be made available to the Borrower by
the Administrative Agent in accordance with the Borrower's
reasonable instructions and in like funds as received by the
Administrative Agent.
(c) Repayment. The principal amount of all Revolving Loans
shall be due and payable in full on the Revolving Loan Maturity Date,
unless accelerated sooner pursuant to Section 9.2.
(d) Interest. Subject to the provisions of Section 3.1,
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(i) Base Rate Loans. During such periods as Revolving
Loans shall be comprised in whole or in part of Base Rate
Loans, such Base Rate Loans shall bear interest at a per annum
rate equal to the Adjusted Base Rate.
(ii) Eurodollar Loans. During such periods as
Revolving Loans shall be comprised in whole or in part of
Eurodollar Loans, such Eurodollar Loans shall bear interest at
a per annum rate equal to the Adjusted Eurodollar Rate.
Interest on Revolving Loans shall be payable in arrears on
each applicable Interest Payment Date (or at such other times
as may be specified herein).
(e) Revolving Notes. If requested by a Revolving Lender, and
upon surrender to the Administrative Agent of any note issued to such
Lender under the Original Credit Facility, the Revolving Loans made by
such Revolving Lender shall be evidenced by a duly executed promissory
note of the Borrower to such Revolving Lender in an original principal
amount equal to such Revolving Lender's Revolving Commitment Percentage
of the Revolving Committed Amount and in substantially the form of
Exhibit 2.1(e).
2.2. LETTER OF CREDIT SUBFACILITY.
(a) Issuance. Subject to the terms and conditions hereof and
of the LOC Documents, if any, and any other terms and conditions which
the relevant Issuing Lender may reasonably require and in reliance upon
the representations and warranties set forth herein, each Issuing
Lender agrees to issue, and each Revolving Lender severally agrees to
participate in the issuance by such Issuing Lender of Letters of Credit
in Dollars from time to time from the Restatement Effective Date until
the Revolving Loan Maturity Date as the Borrower may request, in a form
acceptable to the relevant Issuing Lender; provided, however, that (i)
the LOC Obligations outstanding shall not at any time exceed ONE
HUNDRED FIFTY MILLION DOLLARS ($150,000,000) (the "LOC Committed
Amount"), (ii) LOC Obligations with respect to trade or commercial
Letters of Credit shall not at any time exceed Ten Million Dollars
($10,000,000), (iii) with regard to the Lenders collectively, the
aggregate principal amount of the Obligations outstanding shall not
exceed the lesser of (A) the Aggregate Committed Amount and (B) the
Borrowing Base; provided, further, (iv) with regard to each Revolving
Lender individually, the amount of such Revolving Lender's Revolving
Commitment Percentage of the Revolving Obligations outstanding shall
not exceed such Revolving Lender's Revolving Commitment Percentage of
the Revolving Committed Amount. No Letter of Credit shall (x) have an
original expiry date more than one year from the date of issuance or
(y) as originally issued or as extended, have an expiry date extending
beyond a date five Business Days prior to the Revolving Loan Maturity
Date. Each Letter of Credit shall comply with the related LOC
Documents. The issuance and expiry dates of each Letter of Credit shall
be a Business Day.
(b) Notice and Reports. The request for the issuance of a
Letter of Credit shall be submitted by the Borrower to the relevant
Issuing Lender at least three (3) Business Days prior to the requested
date of issuance. Each Issuing Lender will, at least quarterly and more
frequently upon request, disseminate to the Administrative Agent and
each of the
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Revolving Lenders a detailed report specifying the Letters of Credit
issued by such Issuing Lender which are then outstanding and any
activity with respect thereto which may have occurred since the date of
the prior report, and including therein, among other things, the
beneficiary, the face amount and the expiry date, as well as any
payment or expirations which may have occurred. Each Issuing Lender
will notify the Administrative Agent of the issuance of any Letter of
Credit by such Issuing Lender prior to such issuance as well as each
payment under each such Letter of Credit at the time of such payment.
(c) Participation. Each Revolving Lender, upon issuance of a
Letter of Credit by an Issuing Lender, shall be deemed to have
purchased without recourse a Participation Interest from such Issuing
Lender in such Letter of Credit and the obligations arising thereunder
and any collateral relating thereto, in each case in an amount equal to
its pro rata share of the obligations under such Letter of Credit
(based on the respective Revolving Commitment Percentages of the
Revolving Lenders) and shall absolutely, unconditionally and
irrevocably assume and be obligated to pay to such Issuing Lender and
discharge when due, its pro rata share of the obligations arising under
such Letter of Credit. Without limiting the scope and nature of each
Revolving Lender's Participation Interest in any Letter of Credit, to
the extent that relevant Issuing Lender has not been reimbursed as
required hereunder or under any such Letter of Credit, each such
Revolving Lender shall pay to such Issuing Lender its pro rata share of
such unreimbursed drawing in same day funds on the day of notification
by such Issuing Lender of an unreimbursed drawing pursuant to the
provisions of subsection (d) below. The obligation of each Revolving
Lender to so reimburse the Issuing Lenders shall be absolute and
unconditional and shall not be affected by the occurrence of a Default,
an Event of Default or any other occurrence or event. Any such
reimbursement shall not relieve or otherwise impair the obligation of
the Borrower to reimburse the relevant Issuing Lender under any Letter
of Credit, together with interest as hereinafter provided.
(d) Reimbursement. In the event of any drawing under any
Letter of Credit, the relevant Issuing Lender will promptly notify the
Borrower. Unless the Borrower shall immediately notify such Issuing
Lender that the Borrower intends to otherwise reimburse such Issuing
Lender for such drawing, the Borrower shall be deemed to have requested
that the Revolving Lenders make a Revolving Loan in the amount of the
drawing as provided in subsection (e) below on the related Letter of
Credit, the proceeds of which will be used to satisfy the related
reimbursement obligations. The Borrower promises to reimburse the
relevant Issuing Lender on the day of drawing under any Letter of
Credit (either with the proceeds of a Revolving Loan obtained hereunder
or otherwise) in same day funds. If the Borrower shall fail to
reimburse the relevant Issuing Lender as provided hereinabove, the
unreimbursed amount of such drawing shall bear interest at a per annum
rate equal to the Adjusted Base Rate plus 2%. The Borrower's
reimbursement obligations hereunder shall be absolute and unconditional
under all circumstances irrespective of any rights of setoff,
counterclaim or defense to payment the Borrower may claim or have
against the relevant Issuing Lender, the Administrative Agent, the
Revolving Lenders, the beneficiary of the Letter of Credit drawn upon
or any other Person, including without limitation any defense based on
any failure of the Borrower or any other Credit Party to receive
consideration or the legality, validity, regularity or
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unenforceability of the Letter of Credit. The relevant Issuing Lender
will promptly notify the other Revolving Lenders of the amount of any
unreimbursed drawing and each Revolving Lender shall promptly pay to
the Administrative Agent for the account of the Issuing Lender in
Dollars and in immediately available funds, the amount of such
Revolving Lender's pro rata share of such unreimbursed drawing. Such
payment shall be made on the day such notice is received by such
Revolving Lender from the relevant Issuing Lender if such notice is
received at or before 1:00 P.M. (New York City time) otherwise such
payment shall be made at or before 12:00 Noon (New York City time) on
the Business Day next succeeding the day such notice is received. If
such Revolving Lender does not pay such amount to such Issuing Lender
in full upon such request, such Revolving Lender shall, on demand, pay
to the Administrative Agent for the account of such Issuing Lender
interest on the unpaid amount during the period from the date of such
drawing until such Revolving Lender pays such amount to such Issuing
Lender in full at a rate per annum equal to, if paid within two (2)
Business Days of the date that such Revolving Lender is required to
make payments of such amount pursuant to the preceding sentence, the
Federal Funds Rate and thereafter at a rate equal to the Base Rate.
Each Revolving Lender's obligation to make such payment to the relevant
Issuing Lender, and the right of such Issuing Lender to receive the
same, shall be absolute and unconditional, shall not be affected by any
circumstance whatsoever and without regard to the termination of this
Credit Agreement or the Commitments hereunder, the existence of a
Default or Event of Default or the acceleration of the obligations of
the Borrower hereunder and shall be made without any offset, abatement,
withholding or reduction whatsoever. Simultaneously with the making of
each such payment by a Revolving Lender to the relevant Issuing Lender,
such Revolving Lender shall, automatically and without any further
action on the part of such Issuing Lender or such Revolving Lender,
acquire a Participation Interest in an amount equal to such payment
(excluding the portion of such payment constituting interest owing to
the Issuing Lender) in the related unreimbursed drawing portion of the
LOC Obligation and in the interest thereon and in the related LOC
Documents, and shall have a claim against the Borrower with respect
thereto.
(e) Repayment with Revolving Loans. On any day on which the
Borrower shall have requested, or been deemed to have requested, a
Revolving Loan advance to reimburse a drawing under a Letter of Credit,
the Administrative Agent shall give notice to the Revolving Lenders
that a Revolving Loan has been requested or deemed requested by the
Borrower to be made in connection with a drawing under a Letter of
Credit, in which case a Revolving Loan advance comprised of Base Rate
Loans (or Eurodollar Loans to the extent the Borrower has complied with
the procedures of Section 2.1(b)(i) with respect thereto) shall be
immediately made to the Borrower by all Revolving Lenders
(notwithstanding any termination of the Commitments pursuant to Section
9.2) pro rata based on the respective Revolving Commitment Percentages
of the Revolving Lenders (determined before giving effect to any
termination of the Commitments pursuant to Section 9.2) and the
proceeds thereof shall be paid directly to the Issuing Lender for
application to the respective LOC Obligations. Each such Revolving
Lender hereby irrevocably agrees to make its pro rata share of each
such Revolving Loan immediately upon any such request or deemed request
in the amount, in the manner and on the date specified in the preceding
sentence notwithstanding (i) the amount of such borrowing
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may not comply with the minimum amount for advances of Revolving Loans
otherwise required hereunder, (ii) whether any conditions specified in
Section 5.2 are then satisfied, (iii) whether a Default or an Event of
Default then exists, (iv) failure for any such request or deemed
request for a Revolving Loan to be made by the time otherwise required
hereunder, (v) whether the date of such borrowing is a date on which
Revolving Loans are otherwise permitted to be made hereunder or (vi)
any termination of the Commitments relating thereto immediately prior
to or contemporaneously with such borrowing. In the event that any
Revolving Loan cannot for any reason be made on the date otherwise
required above (including, without limitation, as a result of the
commencement of a proceeding under the Bankruptcy Code with respect to
the Borrower or any other Credit Party), then each such Revolving
Lender hereby agrees that it shall forthwith purchase (as of the date
such borrowing would otherwise have occurred, but adjusted for any
payments received from the Borrower on or after such date and prior to
such purchase) from the Issuing Lender such Participation Interests in
the outstanding LOC Obligations as shall be necessary to cause each
such Revolving Lender to share in such LOC Obligations ratably (based
upon the respective Revolving Commitment Percentages of the Revolving
Lenders (determined before giving effect to any termination of the
Commitments pursuant to Section 9.2)), provided that at the time any
purchase of Participation Interests pursuant to this sentence is
actually made, the purchasing Revolving Lender shall be required to pay
to the relevant Issuing Lender, to the extent not paid to such Issuing
Lender by the Borrower in accordance with the terms of subsection (d)
above, interest on the principal amount of Participation Interests
purchased for each day from and including the day upon which such
borrowing would otherwise have occurred to but excluding the date of
payment for such Participation Interests, at the rate equal to, if paid
within two (2) Business Days of the date of the Revolving Loan advance,
the Federal Funds Rate, and thereafter at a rate equal to the Base
Rate.
(f) Designation of Credit Parties as Account Parties.
Notwithstanding anything to the contrary set forth in this Credit
Agreement, including without limitation Section 2.2(a), a Letter of
Credit issued hereunder may contain a statement to the effect that such
Letter of Credit is issued for the account of a Credit Party other than
the Borrower, provided that notwithstanding such statement, the
Borrower shall be the actual account party for all purposes of this
Credit Agreement for such Letter of Credit and such statement shall not
affect the Borrower's reimbursement obligations hereunder with respect
to such Letter of Credit.
(g) Renewal, Extension. The renewal or extension of any Letter
of Credit shall, for purposes hereof, be treated in all respects the
same as the issuance of a new Letter of Credit hereunder.
(h) Indemnification; Nature of Issuing Lender's Duties.
(i) In addition to its other obligations under this
Section 2.2, the Borrower hereby agrees to pay, and protect,
indemnify and save each Revolving Lender harmless from and
against, any and all claims, demands, liabilities, damages,
losses, costs, charges and expenses (including reasonable
attorneys' fees) that such Revolving Lender may incur or be
subject to as a consequence, direct or
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indirect, of (A) the issuance of any Letter of Credit or (B)
the failure of such Revolving Lender to honor a drawing under
a Letter of Credit as a result of any act or omission, whether
rightful or wrongful, of any present or future de jure or de
facto government or Governmental Authority (all such acts or
omissions, herein called "Government Acts").
(ii) As between the Borrower and the Revolving
Lenders (including the relevant Issuing Lender), the Borrower
shall assume all risks of the acts, omissions or misuse of any
Letter of Credit by the beneficiary thereof. No Revolving
Lender (including the relevant Issuing Lender) shall be
responsible: (A) for the form, validity, sufficiency,
accuracy, genuineness or legal effect of any document
submitted by any party in connection with the application for
and issuance of any Letter of Credit, even if it should in
fact prove to be in any or all respects invalid, insufficient,
inaccurate, fraudulent or forged; (B) for the validity or
sufficiency of any instrument transferring or assigning or
purporting to transfer or assign any Letter of Credit or the
rights or benefits thereunder or proceeds thereof, in whole or
in part, that may prove to be invalid or ineffective for any
reason; (C) for errors, omissions, interruptions or delays in
transmission or delivery of any messages, by mail, cable,
telegraph, telex or otherwise, whether or not they be in
cipher; (D) for any loss or delay in the transmission or
otherwise of any document required in order to make a drawing
under a Letter of Credit or of the proceeds thereof; and (E)
for any consequences arising from causes beyond the control of
such Revolving Lender, including, without limitation, any
Government Acts. None of the above shall affect, impair, or
prevent the vesting of any Issuing Lender's rights or powers
hereunder.
(iii) In furtherance and extension and not in
limitation of the specific provisions hereinabove set forth,
any action taken or omitted by any Revolving Lender (including
the relevant Issuing Lender), under or in connection with any
Letter of Credit or the related certificates, if taken or
omitted in good faith, shall not put such Revolving Lender
under any resulting liability to the Borrower or any other
Credit Party. It is the intention of the parties that this
Credit Agreement shall be construed and applied to protect and
indemnify each Revolving Lender (including each Issuing
Lender) against any and all risks involved in the issuance of
the Letters of Credit, all of which risks are hereby assumed
by the Borrower (on behalf of itself and each of the other
Credit Parties), including, without limitation, any and all
Government Acts. No Revolving Lender (including the relevant
Issuing Lender) shall, in any way, be liable for any failure
by such Revolving Lender or anyone else to pay any drawing
under any Letter of Credit as a result of any Government Acts
or any other cause beyond the control of such Revolving
Lender.
(iv) Nothing in this subsection (h) is intended to
limit the reimbursement obligations of the Borrower contained
in subsection (d) above. The obligations of the Borrower under
this subsection (h) shall survive the termination of this
Credit Agreement. No act or omission of any current or prior
beneficiary of a Letter of Credit shall in any way affect or
impair the rights of the Revolving Lenders
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(including the Issuing Lenders) to enforce any right, power or
benefit under this Credit Agreement.
(v) Notwithstanding anything to the contrary
contained in this subsection (h), the Borrower shall have no
obligation to indemnify any Revolving Lender (including any
Issuing Lender) in respect of any liability incurred by such
Revolving Lender (A) arising solely out of the gross
negligence or willful misconduct of such Revolving Lender, as
determined by a court of competent jurisdiction, or (B) caused
by such Revolving Lender's failure to pay under any Letter of
Credit after presentation to it of a request strictly
complying with the terms and conditions of such Letter of
Credit, as determined by a court of competent jurisdiction,
unless such payment is prohibited by any law, regulation,
court order or decree.
(i) Responsibility of Issuing Lender. It is expressly
understood and agreed that the obligations of each Issuing Lender
hereunder to the Revolving Lenders are only those expressly set forth
in this Credit Agreement and that each Issuing Lender shall be entitled
to assume that the conditions precedent set forth in Section 5.2 have
been satisfied unless it shall have acquired actual knowledge that any
such condition precedent has not been satisfied; provided, however,
that nothing set forth in this Section 2.2 shall be deemed to prejudice
the right of any Revolving Lender to recover from the relevant Issuing
Lender any amounts made available by such Revolving Lender to such
Issuing Lender pursuant to this Section 2.2 in the event that it is
determined by a court of competent jurisdiction that the payment with
respect to a Letter of Credit constituted gross negligence or willful
misconduct on the part of the Issuing Lender.
(j) Conflict with LOC Documents. In the event of any conflict
between this Credit Agreement and any LOC Document (including any
letter of credit application), this Credit Agreement shall control.
2.3. SWINGLINE LOAN SUBFACILITY.
(a) Swingline Commitment. Subject to the terms and conditions
hereof, the Swingline Lender, in its individual capacity, agrees to
make certain revolving credit loans to the Borrower (each a "Swingline
Loan" and, collectively, the "Swingline Loans") from time to time from
the Restatement Effective Date until the Revolving Loan Maturity Date
for the purposes hereinafter set forth; provided, however, (i) the
aggregate amount of Swingline Loans outstanding at any time shall not
exceed TWENTY FIVE MILLION DOLLARS ($25,000,000.00) (the "Swingline
Committed Amount"), and (ii) with regard to the Lenders collectively,
the aggregate principal amount of the Obligations outstanding shall not
exceed the lesser of (x) the Aggregate Committed Amount and (y) the
Borrowing Base. Swingline Loans hereunder shall be made in accordance
with the provisions of this Section 2.3, and may be repaid and
reborrowed in accordance with the provisions hereof.
(b) Swingline Loan Advances.
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(i) Notices; Disbursement. Whenever the Borrower
desires a Swingline Loan advance hereunder it shall give
written notice (or telephone notice promptly confirmed in
writing) to the Swingline Lender not later than 11:00 A.M.
(New York City time) on the Business Day of the requested
Swingline Loan advance. Each such notice shall be irrevocable
and shall specify (A) that a Swingline Loan advance is
requested, (B) the date of the requested Swingline Loan
advance (which shall be a Business Day) and (C) the principal
amount of the Swingline Loan advance requested. Each Swingline
Loan shall be made as a Base Rate Loan and shall have such
maturity date as the Swingline Lender and the Borrower shall
agree upon receipt by the Swingline Lender of any such notice
from the Borrower. The Swingline Lender shall initiate the
transfer of funds representing the Swingline Loan advance to
the Borrower by 3:00 P.M. (New York City time) on the Business
Day of the requested borrowing.
(ii) Minimum Amounts. Each Swingline Loan advance
shall be in a minimum principal amount of $1,000,000 and in
integral multiples of $1,000,000 in excess thereof.
(iii) Repayment of Swingline Loans. The principal
amount of all Swingline Loans shall be due and payable on the
Revolving Loan Maturity Date. The Swingline Lender may, at any
time, in its sole discretion, by written notice to the
Borrower and the Revolving Lenders, demand repayment of its
Swingline Loans by way of a Revolving Loan advance, in which
case the Borrower shall be deemed to have requested a
Revolving Loan advance comprised solely of Base Rate Loans in
the amount of such Swingline Loans; provided, however, that
any such demand shall be deemed to have been given one
Business Day prior to the Revolving Loan Maturity Date and on
the date of the occurrence of any Event of Default described
in Section 9.1 and upon acceleration of the indebtedness
hereunder and the exercise of remedies in accordance with the
provisions of Section 9.2. Each Revolving Lender hereby
irrevocably agrees to make its pro rata share of each such
Revolving Loan in the amount, in the manner and on the date
specified in the preceding sentence notwithstanding (I) the
amount of such borrowing may not comply with the minimum
amount for advances of Revolving Loans otherwise required
hereunder, (II) whether any conditions specified in Section
5.2 are then satisfied, (III) whether a Default or an Event of
Default then exists, (IV) failure of any such request or
deemed request for a Revolving Loan to be made by the time
otherwise required hereunder, (V) whether the date of such
borrowing is a date on which Revolving Loans are otherwise
permitted to be made hereunder or (VI) any termination of the
Commitments relating thereto immediately prior to or
contemporaneously with such borrowing. In the event that any
Revolving Loan cannot for any reason be made on the date
otherwise required above (including, without limitation, as a
result of the commencement of a proceeding under the
Bankruptcy Code with respect to the Borrower or any other
Credit Party), then each Revolving Lender hereby agrees that
it shall forthwith purchase (as of the date such borrowing
would otherwise have occurred, but adjusted for any payments
received from the Borrower on or after such date and prior to
such purchase) from the Swingline Lender such participations
in the
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outstanding Swingline Loans ratably based upon its Revolving
Commitment Percentage of the Revolving Committed Amount
(determined before giving effect to any termination of the
Commitments pursuant to Section 3.4), provided that (A) all
interest payable on the Swingline Loans shall be for the
account of the Swingline Lender until the date as of which the
respective participation is purchased and (B) at the time of
any purchase of participations pursuant to this sentence is
actually made, the purchasing Revolving Lender shall be
required to pay to the Swingline Lender, to the extent not
paid to the Swingline Lender by the Borrower in accordance
with the terms of subsection (c) below, interest on the
principal amount of participation purchased for each day from
and including the day upon which such borrowing would
otherwise have occurred to but excluding the date of payment
for such participation, at the rate equal to the Federal Funds
Rate.
(c) Interest on Swingline Loans. Subject to the provisions of
Section 3.1, each Swingline Loan shall bear interest at per annum rate
equal to the Adjusted Base Rate. Interest on Swingline Loans shall be
payable in arrears on each applicable Interest Payment Date (or at such
other times as may be specified herein).
(d) Swingline Note. If requested by the Swingline Lender, and
upon surrender to the Administrative Agent of any note issued to such
Lender under the Original Credit Facility, the Swingline Loans shall be
evidenced by a duly executed promissory note of the Borrower to the
Swingline Lender in substantially the form of Exhibit 2.3(d).
2.4. TERM LOAN.
(a) Term Commitment. Without extinguishing the rights of the
Original Term Lenders to receive payment for interest accrued on the
Term Loans prior to the Restatement Effective Date, each Term Loan made
on the Original Closing Date pursuant to Section 2.4 of the Original
Credit Agreement (a "Term Loan" and collectively with the Term Loans of
each other Term Lender, the "Term Loans") (less any regularly-scheduled
Principal Amortization Payments under the Original Credit Agreement
made prior to the Restatement Effective Date) shall be deemed to be
outstanding as a Term Loan hereunder from and after the Restatement
Effective Date. The Term Loans may consist of Base Rate Loans or
Eurodollar Loans, or a combination thereof, as the Borrower may
request; provided, however, that no more than six Eurodollar Loans
shall be outstanding under this Section 2.4 at any time (it being
understood that, for purposes hereof, Eurodollar bb bLoans with
different Interest Periods shall be considered as separate Eurodollar
Loans, even if they begin on the same date, although borrowings,
extensions and conversions may, in accordance with the provisions
hereof, be combined at the end of existing Interest Periods to
constitute a new Eurodollar Loan with a single Interest Period).
Amounts repaid on the Term Loans may not be reborrowed. For the
avoidance of doubt, the Term Loans were initially made to the Borrower
on the Original Closing Date and have remained outstanding without
interruption (subject to any regularly-scheduled Principal Amortization
Payments under the Original Credit Agreement) through and including the
Restatement Effective Date, notwithstanding the amendment and
restatement of the Original Credit Agreement pursuant to this Credit
Agreement.
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(b) Repayment of Term Loans. The principal amount of the Term
Loans outstanding as of the Restatement Effective Date shall be repaid
in fourteen (14) consecutive quarterly installments as follows unless
accelerated sooner pursuant to Section 9.2:
=======================================================================
PRINCIPAL TERM LOAN
AMORTIZATION PRINCIPAL AMORTIZATION
PAYMENT DATES PAYMENT
=======================================================================
September 30, 1999 $ 625,000
-----------------------------------------------------------------------
December 31, 1999 $ 625,000
-----------------------------------------------------------------------
March 31, 2000 $ 625,000
-----------------------------------------------------------------------
June 30, 2000 $ 625,000
-----------------------------------------------------------------------
September 30, 2000 $ 625,000
-----------------------------------------------------------------------
December 31, 2000 $ 625,000
-----------------------------------------------------------------------
March 31, 2001 $ 625,000
-----------------------------------------------------------------------
June 30, 2001 $ 625,000
-----------------------------------------------------------------------
September 30, 2001 $ 625,000
-----------------------------------------------------------------------
December 31, 2001 $ 625,000
-----------------------------------------------------------------------
March 31, 2002 $ 625,000
-----------------------------------------------------------------------
June 30, 2002 $ 625,000
-----------------------------------------------------------------------
September 30, 2002 $ 625,000
-----------------------------------------------------------------------
December 31, 2002 $240,625,000
-----------------------------------------------------------------------
Total $248,750,000
=======================================================================
(c) Interest. Subject to the provisions of Section 3.1,
Eurodollar Loans comprising all or a part of the Term Loans shall bear
interest at a per annum rate equal to the Eurodollar Rate plus 4.00%
and Base Rate Loans comprising all or part of the Term Loans shall bear
interest at a per annum rate equal to the Base Rate plus 2.50%;
provided, however, (i) if the Borrower shall have a Senior Debt Rating
by S&P greater than or equal to BBB- and a Senior Debt Rating by
Moody's greater than or equal to Baa3, the Term Loans shall bear
interest at a per annum rate equal to the Eurodollar Rate plus 3.75%
(in the case of Eurodollar Loans) or the Base Rate plus 2.25% (in the
case of Base Rate Loans). Interest in respect of Term Loans shall be
payable in arrears on each applicable Interest Payment Date (or at such
other times as may be specified herein).
(d) Term Notes. If requested by a Term Lender, and upon
surrender to the Administrative Agent of any note issued to such Lender
under the Original Credit Facility, the Term Loan made by such Term
Lender shall be evidenced by a duly executed promissory note of the
Borrower to such Term Lender in an original principal amount equal to
the principal amount of such Term Loan outstanding on the Original
Closing Date, substantially in the form of Exhibit 2.4(d).
2.5. TRANCHE C TERM LOAN.
(a) Tranche C Term Commitment. Subject to the terms and
conditions hereof and in reliance upon the representations and
warranties set forth herein each Tranche C Term
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Lender severally agrees to make available to the Borrower on the
Restatement Effective Date a term loan in Dollars (a "Tranche C Term
Loan" and collectively with the Tranche C Term Loans of each other
Tranche C Term Lender, the "Tranche C Term Loans") in an amount equal
to the Tranche C Term Loan Commitment of such Tranche C Term Lender and
in an aggregate principal amount for all Tranche C Term Lenders equal
to the Tranche C Term Loan Committed Amount; provided, however, that
with regard to the Lenders collectively, the sum of the aggregate
principal amount of the Obligations outstanding shall not exceed the
lesser of (A) the Aggregate Committed Amount and (B) the Borrowing
Base. The Tranche C Term Loans may initially consist only of Base Rate
Loans. Subsequent to the Restatement Effective Date, Tranche C Term
Loans may be converted to Eurodollar Loans pursuant to Section 3.2 as
the Borrower may request; provided, however, that no more than six
Tranche C Term Loans that are Eurodollar Loans shall be outstanding at
any time (it being understood that, for purposes hereof, Eurodollar
Loans with different Interest Periods shall be considered as separate
Eurodollar Loans, even if they begin on the same date, although
borrowings, extensions and conversions may, in accordance with the
provisions hereof, be combined at the end of existing Interest Periods
to constitute a new Eurodollar Loan with a single Interest Period).
Amounts repaid on the Tranche C Term Loans may not be reborrowed.
(b) Borrowing Procedures. The entire amount of the Tranche C
Term Loans shall be made in a single borrowing on the Restatement
Effective Date. The Borrower shall submit an appropriate Notice of
Borrowing to the Administrative Agent not later than 11:00 A.M. (New
York City time) on the Business Day prior to the Restatement Effective
Date, which Notice of Borrowing shall be irrevocable and shall specify
that the funding of the Tranche C Term Loans is requested. Each Tranche
C Term Lender shall make its Tranche C Term Loan Commitment Percentage
of the Tranche C Term Loan available to the Administrative Agent for
the account of the Borrower at the office of the Administrative Agent
specified in Schedule 2.1(a), or at such other office as the
Administrative Agent may designate in writing, by 1:00 P.M. (New York
City time) on the Restatement Effective Date in Dollars and in funds
immediately available to the Administrative Agent.
(c) Minimum Amounts. Eurodollar Loans having the same Interest
Period and Base Rate Loans that comprise parts of the Tranche C Term
Loan shall be in an aggregate principal amount that is not less than
$10,000,000 and integral multiples of $1,000,000 (or the then remaining
principal balance of the Tranche C Term Loans, if less).
(d) Repayment of Tranche C Term Loans. The principal amount of
the Tranche C Term Loans shall be repaid in fourteen (14) consecutive
quarterly installments as follows unless accelerated sooner pursuant to
Section 9.2:
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=======================================================================
PRINCIPAL TRANCHE C TERM LOAN
AMORTIZATION PRINCIPAL AMORTIZATION
PAYMENT DATES PAYMENT
=======================================================================
September 30, 1999 $ 875,000
-----------------------------------------------------------------------
December 31, 1999 $ 875,000
-----------------------------------------------------------------------
March 31, 2000 $ 875,000
-----------------------------------------------------------------------
June 30, 2000 $ 875,000
-----------------------------------------------------------------------
September 30, 2000 $ 875,000
-----------------------------------------------------------------------
December 31, 2000 $ 875,000
-----------------------------------------------------------------------
March 31, 2001 $ 875,000
-----------------------------------------------------------------------
June 30, 2001 $ 875,000
-----------------------------------------------------------------------
September 30, 2001 $ 875,000
-----------------------------------------------------------------------
December 31, 2001 $ 875,000
-----------------------------------------------------------------------
March 31, 2002 $ 875,000
-----------------------------------------------------------------------
June 30, 2002 $ 875,000
-----------------------------------------------------------------------
September 30, 2002 $ 875,000
-----------------------------------------------------------------------
December 31, 2002 $338,625,000
-----------------------------------------------------------------------
Total $350,000,000
=======================================================================
(e) Interest. Subject to the provisions of Section 3.1,
Eurodollar Loans comprising all or a part of the Tranche C Term Loans
shall bear interest at a per annum rate equal to the Eurodollar Rate
plus 4.00% and Base Rate Loans comprising all or part of the Tranche C
Term Loans shall bear interest at a per annum rate equal to the Base
Rate plus 2.50%; provided, however, (i) if the Borrower shall have a
Senior Debt Rating by S&P greater than or equal to BBB- and a Senior
Debt Rating by Moody's greater than or equal to Baa3, the Tranche C
Term Loans shall bear interest at a per annum rate equal to the
Eurodollar Rate plus 3.75% (in the case of Eurodollar Loans) or the
Base Rate plus 2.25% (in the case of Base Rate Loans). Interest in
respect of Tranche C Term Loans shall be payable in arrears on each
applicable Interest Payment Date (or at such other times as may be
specified herein).
(f) Tranche C Term Notes. If requested by a Tranche C Term
Lender, the portion of the Tranche C Term Loan made by such Tranche C
Term Lender shall be evidenced by a duly executed promissory note of
the Borrower to such Tranche C Term Lender in an original principal
amount equal to the original principal amount of such Tranche C Term
Lender's Tranche C Commitment Percentage of the Tranche C Term Loan,
and substantially in the form of Exhibit 2.5(f).
SECTION 3.
OTHER PROVISIONS RELATING TO CREDIT FACILITIES
3.1. DEFAULT RATE.
Upon the occurrence, and during the continuance, of an Event of
Default, the principal of and, to the extent permitted by law, interest on the
Loans and any other amounts owing hereunder or under the other Credit Documents
shall bear interest, payable on demand, at a per annum rate 2% greater than the
rate which would otherwise be applicable (or if no rate is applicable, whether
in respect of interest, fees or other amounts, then the Adjusted Base Rate plus
2%).
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3.2. EXTENSION AND CONVERSION.
The Borrower shall have the option, on any Business Day, to extend
existing Loans into a subsequent permissible Interest Period or to convert
Revolving Loans, Term Loans or Tranche C Term Loans, as the case may be, to
Revolving Loans, Term Loans or Tranche C Term Loans, respectively, of another
interest rate type; provided, however, that (i) except as provided in Section
3.8, Eurodollar Loans may be converted into Base Rate Loans or extended as
Eurodollar Loans for new Interest Periods only on the last day of the Interest
Period applicable thereto, (ii) no Loans may be converted into, or continued as,
Eurodollar Loans if a Default or Event of Default is in existence and the
Aggregate Required Lenders or the Administrative Agent shall have determined
that such conversion or continuation is inappropriate, (iii) Loans extended as,
or converted into, Eurodollar Loans shall be subject to the terms of the
definition of "Interest Period" set forth in Section 1.1 and shall be in such
minimum amounts as provided in, with respect to the Revolving Loans, Section
2.1(b)(ii), with respect to the Term Loans, Section 2.4(c) or with respect to
the Tranche C Term Loans, Section 2.5(c), (iv) no more than 10 Eurodollar Loans
shall be outstanding under this Credit Agreement at any time (it being
understood that, for purposes hereof, Eurodollar Loans with different Interest
Periods shall be considered as separate Eurodollar Loans, even if they begin on
the same date, although borrowings, extensions and conversions may, in
accordance with the provisions hereof, be combined at the end of existing
Interest Periods to constitute a new Eurodollar Loan with a single Interest
Period) and (v) any request for extension or conversion of a Eurodollar Loan
which shall fail to specify an Interest Period shall be deemed to be a request
for an Interest Period of one month. Each such extension or conversion shall be
effected by the Borrower by giving a Notice of Extension/Conversion (or
telephonic notice promptly confirmed in writing) to the office of the
Administrative Agent specified in specified in Schedule 2.1(a), or at such other
office as the Administrative Agent may designate in writing, prior to 11:00 A.M.
(New York City time) on the Business Day of, in the case of the conversion of a
Eurodollar Loan into a Base Rate Loan, and on the third Business Day prior to,
in the case of the extension of a Eurodollar Loan as, or conversion of a Base
Rate Loan into, a Eurodollar Loan, the date of the proposed extension or
conversion, specifying the date of the proposed extension or conversion, the
Loans to be so extended or converted, the types of Loans into which such Loans
are to be converted and, if appropriate, the applicable Interest Periods with
respect thereto. Each request for extension or conversion shall be irrevocable.
In the event the Borrower fails to request extension or conversion of any
Eurodollar Loan in accordance with this Section, or any such conversion or
extension is not permitted or required by this Section, then such Eurodollar
Loan shall be automatically converted into a Base Rate Loan at the end of the
Interest Period applicable thereto. The Administrative Agent shall give each
affected Lender notice as promptly as practicable of any such proposed extension
or conversion affecting any Loan.
3.3. PREPAYMENTS.
(a) Voluntary Prepayments. The Borrower shall have the right
to prepay any Loans in whole or in part from time to time as it may
select; provided, however, that (i) each partial prepayment of Loans
shall be in a minimum principal amount of $10,000,000 and integral
multiples of $5,000,000 (provided that Revolving Loans that are Base
Rate Loans may be prepaid in minimum principal amounts of $1,000,000
and integral multiples of $100,000) and (ii) any voluntary prepayment
of the Term Loans and/or Tranche C Term Loans shall be subject to the
prepayment penalty provisions of Section 3.3(c). Subject to the
foregoing terms, amounts prepaid under this Section 3.3(a) shall be
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applied as the Borrower may elect; provided that if the Borrower elects
to make a voluntary prepayment with respect to the Term Loans or the
Tranche C Term Loans, the Borrower shall be required to make a pro rata
voluntary prepayment (and corresponding permanent reduction in the
Revolving Committed Amount) with respect to the Revolving Loans. Any
amounts so prepaid shall be applied, in the case of the Term Loans and
the Tranche C Term Loans, in the inverse order of maturity thereof, and
in the case of all Loans, first to Base Rate Loans and then to
Eurodollar Loans in direct order of Interest Period maturities. All
prepayments under this Section 3.3(a) shall be subject to Section 3.12
and all prepayments of Term Loans and Tranche C Term Loans shall be
subject to Section 3.3(c), but otherwise prepayments shall be made
without premium or penalty.
(b) Mandatory Prepayments.
(i) Committed Amounts. If at any time, (A) the sum of
the aggregate principal amount of the Obligations outstanding
shall exceed the lesser of (x) the Aggregate Committed Amount
and (y) the Borrowing Base, (B) the amount of LOC Obligations
outstanding shall exceed the LOC Committed Amount or (C) the
amount of Swingline Loans outstanding shall exceed the
Swingline Committed Amount, the Borrower shall immediately
make payment on the Revolving Loans, the Swingline Loans
and/or to a cash collateral account (any such account into
which cash collateral is deposited by the Borrower, a "cash
collateral account") in respect of the LOC Obligations, in an
amount sufficient to eliminate the deficiency; provided,
however, to the extent payment on the Revolving Loans and/or
to a cash collateral account in respect of the LOC Obligations
is not sufficient to eliminate such deficiency, the Borrower
shall make payment on the Term Loans in an amount sufficient
to eliminate the deficiency and a corresponding permanent
reduction in the Revolving Committed Amount. The Borrower
hereby grants to the Administrative Agent, for the ratable
benefit of the Secured Parties, a continuing security interest
in all amounts at any time on deposit in any and all cash
collateral accounts to secure all LOC Obligations from time to
time outstanding and all other Credit Party Obligations
hereunder.
(ii) Asset Disposition; Etc. Immediately upon receipt
by any Consolidated Party of proceeds from any Asset
Disposition or repayment of the Agecroft Note, the Borrower
shall prepay the Loans in an aggregate amount equal to the Net
Cash Proceeds of the related Asset Disposition or repayment
(such prepayment to be applied as set forth in clause (iii)
below).
Notwithstanding the foregoing, the Borrower
shall not be required to make a prepayment pursuant to this
Section 3.3(b)(ii) with respect to (A) up to $42,000,000 of
Net Cash Proceeds from the sale of the Polk County, Florida,
correctional facility, (B) up to $25,000,000 per annum of Net
Cash Proceeds from any Asset Dispositions and (C) any amounts
received in repayment of the Agecroft Note; provided, that, in
the case of (A), (B) and (C) above, the Borrower advises the
Administrative Agent at the time the Net Cash Proceeds from
such Asset Dispositions or repayment are received that it
intends to reinvest such Net Cash Proceeds into replacement
assets (including pursuant to any acquisition)
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within 360 days after such Asset Disposition or repayment and
such Net Cash Proceeds are applied to repay the Revolving
Loans (or, if no Revolving Loans are outstanding, to provide
cash collateral for the Credit Party Obligations by deposit in
a cash collateral account) until such time as such
reinvestment occurs (or such 360 day period expires);
provided, however, if such Net Cash Proceeds are not so
reinvested within such 360 day period, the Borrower shall be
obligated to apply such Net Cash Proceeds to the prepayment of
the Loans at the end of such 360 day period in accordance with
the terms of Section 3.3(b)(iii).
(iii) Application of Mandatory Prepayments. All
amounts required to be paid pursuant to Section 3.3(b)(ii)
shall be applied ratably to the Revolving Obligations, the
Term Loans and the Tranche C Term Loans in accordance with the
respective outstanding amounts thereof as follows: (A) to the
Revolving Obligations (first to Revolving Loans and second to
Swingline Loans and (after all Revolving Loans and Swingline
Loans have been repaid) then to a cash collateral account to
secure LOC Obligations) (with a corresponding reduction in the
Revolving Committed Amount in an amount equal to all amounts
applied to the Revolving Obligations pursuant to this Section
(b)(iii)) and (B) to the Term Loans and the Tranche C Term
Loans, in the inverse order of maturity thereof, allocated
ratably between the Term Loans and the Tranche C Term Loans in
accordance with the respective outstanding amounts thereof.
One or more holders of the Term Loans or the Tranche C Term
Loans may decline to accept a mandatory prepayment under
Section 3.3(b)(ii) to the extent there are sufficient
Revolving Loans or Term Loans, as applicable, outstanding to
be paid with such prepayment. In the event one or more holders
of the Term Loans declines such a prepayment, such declined
prepayments shall be split evenly, with fifty percent (50%) of
such declined prepayment allocated toward a prepayment of the
Revolving Loans (with a corresponding reduction in the
Revolving Committed Amount in an amount equal to the amount
prepaid pursuant to such prepayment) and fifty percent (50%)
of such declined prepayment being returned to the Borrower. In
the event one or more holders of the Tranche C Term Loans
declines such a prepayment, such declined prepayments shall be
split as follows: twenty-five percent (25%) of such declined
prepayment shall be allocated toward a prepayment of the
Revolving Loans (with a corresponding reduction in the
Revolving Committed Amount in an amount equal to the amount
prepaid pursuant to such prepayment), twenty-five percent
(25%) of such declined prepayment shall be allocated toward a
prepayment of the Term Loans (subject to the right of the
holders of the Term Loans to decline such prepayment as
provided above), and fifty percent (50%) of such declined
prepayment shall be returned to the Borrower; provided that,
in no event shall the Borrower receive greater than fifty
percent (50%) of the aggregate declined portions of any
prepayment (with any excess being allocated toward a
prepayment of the Revolving Loans (with a corresponding
reduction in the Revolving Committed Amount in an amount equal
to the amount prepaid pursuant to such prepayment)). Within
the parameters of the applications set forth above,
prepayments shall be applied first to Base Rate Loans and then
to Eurodollar Loans in direct order of Interest Period
maturities. All prepayments under this Section 3.3(b) shall be
subject to Section 3.12.
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(c) Prepayment Penalty. In the event the Borrower voluntarily
elects to prepay the Term Loan and/or the Tranche C Term Loan within
one year of the Original Closing Date as permitted by Section 3.3(a),
the Borrower shall be obligated to pay a prepayment fee equal to two
percent (2.0%) of the principal amount prepaid. In the event the
Borrower voluntarily elects to prepay the Term Loan and/or the Tranche
C Term Loan between December 31, 1999 and December 31, 2000 as
permitted by Section 3.3(a), the Borrower shall be obligated to pay a
prepayment fee equal to one percent (1.0%) of the principal amount
prepaid. After two years from the Original Closing Date, the Borrower
may prepay the Term Loan and/or the Tranche C Term Loan without a
prepayment penalty or fee.
3.4. TERMINATION AND REDUCTION OF REVOLVING COMMITTED AMOUNT.
The Borrower may from time to time permanently reduce or terminate the
Revolving Committed Amount in whole or in part (in minimum aggregate amounts of
$10,000,000 or in integral multiples of $5,000,000 in excess thereof (or, if
less, the full remaining amount of the then applicable Revolving Committed
Amount)) upon five Business Days' prior written notice to the Administrative
Agent; provided, that, (i) no such termination or reduction shall be made which
would cause the sum of the aggregate outstanding principal amount of the
Obligations to exceed the lesser of (A) the Aggregate Committed Amount and (B)
the Borrowing Base, unless, concurrently with such termination or reduction, the
Loans are repaid to the extent necessary to eliminate such excess and (ii) no
such termination or reduction shall be made which would cause the sum of the
aggregate outstanding principal amount of the Revolving Obligations to exceed
the Revolving Committed Amount. The Administrative Agent shall promptly notify
each affected Lender of receipt by the Administrative Agent of any notice from
the Borrower pursuant to this Section 3.4.
3.5. FEES.
(a) [Intentionally omitted].
(b) Unused Fee. In consideration of the Revolving Commitments
of the Revolving Lenders hereunder, the Borrower agrees to pay to the
Administrative Agent for the account of each Revolving Lender a fee
(the "Unused Fee") on the Unused Revolving Committed Amount computed at
a per annum rate for each day during the applicable Unused Fee
Calculation Period (hereinafter defined) equal to the Applicable
Percentage in effect from time to time. The Unused Fee shall begin
accruing on the Restatement Effective Date and shall be due and payable
in arrears on the last business day of each March, June, September and
December (and any date that the Revolving Committed Amount is reduced
as provided in Section 3.4 and the Revolving Loan Maturity Date) for
the immediately preceding quarter (or portion thereof) (each such
quarter or portion thereof for which the Unused Fee is payable
hereunder being herein referred to as an "Unused Fee Calculation
Period"), beginning with the first of such dates to occur after the
Restatement Effective Date. For purposes of computation of the Unused
Fee, the Swingline Loans shall not be counted toward or considered
usage under the Revolving Loan Facility.
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(c) Letter of Credit Fees.
(i) Letter of Credit Issuance Fee. In consideration
of the issuance of standby or any other performance related
Letters of Credit hereunder, the Borrower promises to pay to
the Administrative Agent for the account of each Revolving
Lender a fee (the "Standby Letter of Credit Fee") on such
Revolving Lender's Revolving Commitment Percentage of the
average daily maximum amount available to be drawn under each
such standby Letter of Credit computed at a per annum rate for
each day from the date of issuance to the date of expiration
equal to the Applicable Percentage for Eurodollar Loans. The
Standby Letter of Credit Fee will be payable quarterly in
arrears on the last Business Day of each March, June,
September and December for the immediately preceding quarter
(or a portion thereof).
(ii) Trade Letter of Credit Fee. In consideration of
the issuance of trade Letters of Credit hereunder, the
Borrower promises to pay to the Administrative Agent for the
account of each Revolving Lender a fee (the "Trade Letter of
Credit Fee") on such Revolving Lender's Revolving Commitment
Percentage of the amount of each drawing under any such trade
Letter of Credit equal to .125%. The Trade Letter of Credit
Fee will be payable on each date of drawing under a trade
Letter of Credit.
(iii) Issuing Lender Fees. In addition to the Standby
Letter of Credit Fee payable pursuant to clause (i) above and
the Trade Letter of Credit Fee payable pursuant to clause (ii)
above, the Borrower promises to pay to the Issuing Lender for
its own account without sharing by the other Revolving Lenders
(A) a letter of credit fronting fee of one-eighth percent
(1/8%) per annum on the average daily maximum amount available
to be drawn under outstanding Letters of Credit payable
quarterly in arrears with the Standby Letter of Credit Fee and
the Trade Letter of Credit Fee, and (B) customary charges from
time to time of the Issuing Lender with respect to the
issuance, amendment, transfer, administration, cancellation
and conversion of, and drawings under, such Letters of Credit
(collectively, the "Issuing Lender Fees").
(d) Administrative Fees. The Borrower agrees to pay to the
Administrative Agent, for its own account, an administrative fee in an
amount previously agreed between the Borrower and the Administrative
Agent (the "Administrative Agent's Fees"), on the Restatement Effective
Date and annually in advance prior to the date on which all Commitments
under this Credit Agreement have terminated and no Credit Party
Obligations are outstanding.
(e) Other Fees. The Borrower agrees to pay to LCPI, in
immediately available funds on the Restatement Effective Date, the
other fees referred to in the Commitment Letter (and related Fee
Letter), each dated as of April 26, 1999, and as amended, among the
Borrower, LCPI and LBI and as further agreed among the Borrower, LCPI
and LBI.
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3.6. CAPITAL ADEQUACY.
If any Lender has determined, after the date hereof, that the adoption
or the becoming effective of, or any change in, or any change by any
Governmental Authority, central bank or comparable agency charged with the
interpretation or administration thereof in the interpretation or administration
of, any applicable law, rule or regulation regarding capital adequacy, or
compliance by such Lender with any request or directive regarding capital
adequacy (whether or not having the force of law) of any such authority, central
bank or comparable agency, has or would have the effect of reducing the rate of
return on such Lender's capital or assets as a consequence of its commitments or
obligations hereunder to a level below that which such Lender could have
achieved but for such adoption, effectiveness, change or compliance (taking into
consideration such Lender's policies with respect to capital adequacy), then,
upon notice from such Lender to the Borrower, the Borrower shall be obligated to
pay to such Lender such additional amount or amounts as will compensate such
Lender for such reduction. Each determination by any such Lender of amounts
owing under this Section shall, absent manifest error, be conclusive and binding
on the parties hereto.
3.7. LIMITATION ON EURODOLLAR LOANS.
If on or prior to the first day of any Interest Period for any
Eurodollar Loan:
(a) the Administrative Agent determines (which determination
shall be conclusive) that by reason of circumstances affecting the
relevant market, adequate and reasonable means do not exist for
ascertaining the Eurodollar Rate for such Interest Period; or
(b) the Required Lenders determine (which determination shall
be conclusive) and notify the Administrative Agent that the Eurodollar
Rate will not adequately and fairly reflect the cost to the Lenders of
funding Eurodollar Loans for such Interest Period;
then the Administrative Agent shall give the Borrower prompt notice thereof, and
so long as such condition remains in effect, the Lenders shall be under no
obligation to make additional Eurodollar Loans, continue Eurodollar Loans, or to
convert Base Rate Loans into Eurodollar Loans and the Borrower shall, on the
last day(s) of the then current Interest Period(s) for the outstanding
Eurodollar Loans, either prepay such Eurodollar Loans or convert such Eurodollar
Loans into Base Rate Loans in accordance with the terms of this Credit
Agreement.
3.7A LIMITATION ON TRANCHE C EURODOLLAR LOANS.
If on or prior to the first day of any Interest Period for any
Eurodollar Loan the Required Tranche C Lenders determine (which determination
shall be conclusive) and notify the Administrative Agent that the Eurodollar
Rate will not adequately and fairly reflect the cost to the Tranche C Lenders of
funding Eurodollar Loans to be held by such Tranche C Lenders during such
Interest Period, then the Administrative Agent shall give the Borrower prompt
notice thereof, and so long as such condition remains in effect, the Tranche C
Lenders shall be under no obligation to make additional Eurodollar Loans,
continue Eurodollar Loans, or to convert Base Rate Loans into Eurodollar Loans
and the Borrower shall, on the last day(s) of the then current Interest
Period(s) for the outstanding Eurodollar Loans, either prepay such Eurodollar
Loans or convert such Eurodollar Loans into Base Rate Loans in accordance with
the terms of this Credit Agreement.
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3.8. ILLEGALITY.
Notwithstanding any other provision herein, if the adoption of or any
change in any Requirement of Law or in the interpretation or application thereof
occurring after the Closing Date shall make it unlawful for any Lender to make
or maintain Eurodollar Loans as contemplated by this Credit Agreement, (a) such
Lender shall promptly give written notice of such circumstances to the Borrower
and the Administrative Agent (which notice shall be withdrawn whenever such
circumstances no longer exist), (b) the commitment of such Lender hereunder to
make Eurodollar Loans, continue Eurodollar Loans as such and convert a Base Rate
Loan to Eurodollar Loans, shall forthwith be canceled and, until such time as it
shall no longer be unlawful for such Lender to make or maintain Eurodollar
Loans, such Lender shall then have a commitment only to make a Base Rate Loan
when a Eurodollar Loan is requested and (c) such Lender's Loans then outstanding
as Eurodollar Loans, if any, shall be converted automatically to Base Rate Loans
on the respective last days of the then current Interest Periods with respect to
such Loans or within such earlier period as required by law. If any such
conversion of a Eurodollar Loan occurs on a day which is not the last day of the
then current Interest Period with respect thereto, the Borrower shall pay to
such Lender such amounts, if any, as may be required pursuant to Section 3.13.
3.9. REQUIREMENTS OF LAW.
If, after the date hereof, the adoption of any applicable law, rule, or
regulation, or any change in any applicable law, rule, or regulation, or any
change in the interpretation or administration thereof by any Governmental
Authority, central bank, or comparable agency charged with the interpretation or
administration thereof, or compliance by any Lender (or its Applicable Lending
Office) with any request or directive (whether or not having the force of law)
of any such Governmental Authority, central bank, or comparable agency:
(i) shall subject such Lender (or its Applicable
Lending Office) to any tax, duty, or other charge with respect
to any Eurodollar Loans, its Notes, or its obligation to make
Eurodollar Loans, or change the basis of taxation of any
amounts payable to such Lender (or its Applicable Lending
Office) under this Credit Agreement or its Notes in respect of
any Eurodollar Loans (other than taxes imposed on the overall
net income of such Lender by the jurisdiction in which such
Lender has its principal office or such Applicable Lending
Office);
(ii) shall impose, modify, or deem applicable any
reserve, special deposit, assessment, or similar requirement
(other than the Eurodollar Reserve Requirement utilized in the
determination of the Adjusted Eurodollar Rate) relating to any
extensions of credit or other assets of, or any deposits with
or other liabilities or commitments of, such Lender (or its
Applicable Lending Office), including the Commitment of such
Lender hereunder; or
(iii) shall impose on such Lender (or its Applicable
Lending Office) or the London interbank market any other
condition affecting this Credit Agreement or its Notes or any
of such extensions of credit or liabilities or commitments;
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and the result of any of the foregoing is to increase the cost to such Lender
(or its Applicable Lending Office) of making, converting into, continuing, or
maintaining any Eurodollar Loans or to reduce any sum received or receivable by
such Lender (or its Applicable Lending Office) under this Credit Agreement or
its Notes with respect to any Eurodollar Loans, then the Borrower shall pay to
such Lender on demand such amount or amounts as will compensate such Lender for
such increased cost or reduction. If any Lender requests compensation by the
Borrower under this Section 3.9, the Borrower may, by notice to such Lender
(with a copy to the Administrative Agent), suspend the obligation of such Lender
to make or continue Eurodollar Loans, or to convert Base Rate Loans into
Eurodollar Loans, until the event or condition giving rise to such request
ceases to be in effect (in which case the provisions of Section 3.10 shall be
applicable); provided that such suspension shall not affect the right of such
Lender to receive the compensation so requested. Each Lender shall promptly
notify the Borrower and the Administrative Agent of any event of which it has
knowledge, occurring after the date hereof, which will entitle such Lender to
compensation pursuant to this Section 3.9 and will designate a different
Applicable Lending Office if such designation will avoid the need for, or reduce
the amount of, such compensation and will not, in the judgment of such Lender,
be otherwise disadvantageous to it. Any Lender claiming compensation under this
Section 3.9 shall furnish to the Borrower and the Administrative Agent a
statement setting forth the additional amount or amounts to be paid to it
hereunder which shall be conclusive in the absence of manifest error. In
determining such amount, such Lender may use any reasonable averaging and
attribution methods.
3.10. TREATMENT OF AFFECTED LOANS.
If the obligation of any Lender to make any Eurodollar Loan or to
continue, or to convert Base Rate Loans into, Eurodollar Loans shall be
suspended pursuant to Section 3.8 or 3.9 hereof, such Lender's Eurodollar Loans
shall be automatically converted into Base Rate Loans on the last day(s) of the
then current Interest Period(s) for such Eurodollar Loans (or, in the case of a
conversion required by Section 3.8 hereof, on such earlier date as such Lender
may specify to the Borrower with a copy to the Administrative Agent) and, unless
and until such Lender gives notice as provided below that the circumstances
specified in Section 3.8 or 3.9 hereof that gave rise to such conversion no
longer exist:
(a) to the extent that such Lender's Eurodollar Loans have
been so converted, all payments and prepayments of principal that would
otherwise be applied to such Lender's Eurodollar Loans shall be applied
instead to its Base Rate Loans; and
(b) all Loans that would otherwise be made or continued by
such Lender as Eurodollar Loans shall be made or continued instead as
Base Rate Loans, and all Base Rate Loans of such Lender that would
otherwise be converted into Eurodollar Loans shall remain as Base Rate
Loans.
If such Lender gives notice to the Borrower (with a copy to the Administrative
Agent) that the circumstances specified in Section 3.8 or 3.9 hereof that gave
rise to the conversion of such Lender's Eurodollar Loans pursuant to this
Section 3.10 no longer exist (which such Lender agrees to do promptly upon such
circumstances ceasing to exist) at a time when Eurodollar Loans made by other
Lenders are outstanding, such Lender's Base Rate Loans shall be
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automatically converted, on the first day(s) of the next succeeding Interest
Period(s) for such outstanding Eurodollar Loans, to the extent necessary so
that, after giving effect thereto, all Loans held by the Lenders holding
Eurodollar Loans and by such Lender are held pro rata (as to principal amounts,
interest rate basis, and Interest Periods) in accordance with their respective
Commitments.
3.11. TAXES.
(a) Any and all payments by any Credit Party to or for the
account of any Lender or the Administrative Agent hereunder or under
any other Credit Document shall be made free and clear of and without
deduction for any and all present or future taxes, duties, levies,
imposts, deductions, charges or withholdings, and all liabilities with
respect thereto, excluding, in the case of each Lender and the
Administrative Agent, taxes imposed on its income, and franchise taxes
imposed on it, by the jurisdiction under the laws of which such Lender
(or its Applicable Lending Office) or the Administrative Agent (as the
case may be) is organized or any political subdivision thereof (all
such non-excluded taxes, duties, levies, imposts, deductions, charges,
withholdings, and liabilities being hereinafter referred to as
"Taxes"). If any Credit Party shall be required by law to deduct any
Taxes from or in respect of any sum payable under this Credit Agreement
or any other Credit Document to any Lender or the Administrative Agent,
(i) the sum payable shall be increased as necessary so that after
making all required deductions (including deductions applicable to
additional sums payable under this Section 3.11) such Lender or the
Administrative Agent receives an amount equal to the sum it would have
received had no such deductions been made, (ii) such Credit Party shall
make such deductions, (iii) such Credit Party shall pay the full amount
deducted to the relevant taxation authority or other authority in
accordance with applicable law, and (iv) such Credit Party shall
furnish to the Administrative Agent, at its address referred to in
Section 11.1, the original or a certified copy of a receipt evidencing
payment thereof.
(b) In addition, the Borrower agrees to pay any and all
present or future stamp or documentary taxes and any other excise or
property taxes or charges or similar levies which arise from any
payment made under this Credit Agreement or any other Credit Document
or from the execution or delivery of, or otherwise with respect to,
this Credit Agreement or any other Credit Document (hereinafter
referred to as "Other Taxes").
(c) The Borrower agrees to indemnify each Lender and the
Administrative Agent for the full amount of Taxes and Other Taxes
(including, without limitation, any Taxes or Other Taxes imposed or
asserted by any jurisdiction on amounts payable under this Section
3.11) paid by such Lender or the Administrative Agent (as the case may
be) and any liability (including penalties, interest, and expenses)
arising therefrom or with respect thereto.
(d) Each Lender that is not a United States person under
Section 7701(a)(30) of the Code (a "Non-U.S. Lender"), on or prior to
the date of its execution and delivery of this Credit Agreement in the
case of each Lender listed on the signature pages hereof and on or
prior to the date on which it becomes a Lender in the case of each
other Lender, and from time to time thereafter if requested in writing
by the Borrower or the Administrative
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Agent (but only so long as such Lender remains lawfully able to do so),
shall provide the Borrower and the Administrative Agent with (i)
Internal Revenue Service Form 1001 or 4224, as appropriate, or any
successor form prescribed by the Internal Revenue Service, certifying
that such Lender is entitled to benefits under an income tax treaty to
which the United States is a party which reduces the rate of
withholding tax on payments of interest or certifying that the income
receivable pursuant to this Credit Agreement is effectively connected
with the conduct of a trade or business in the United States or (ii)
with respect to any Non-U.S. Lender that is not a "bank" within the
meaning of Section 881(c)(3)(A) of the Code claiming exemption from
U.S. withholding tax under Section 871(h) or 881(c) of the Code with
respect to payments of "portfolio interest," a statement substantially
in the form of Exhibit 3.11(d) or a Form W-8 certifying, in the case of
(i) or (ii) above, that such Lender is entitled to an exemption from or
a reduced rate of tax on payments pursuant to this Credit Agreement or
any of the other Credit Documents.
(e) For any period with respect to which a Lender has failed
to provide the Borrower and the Administrative Agent with the
appropriate form pursuant to Section 3.11(d) (unless such failure is
due to a change in treaty, law, or regulation occurring subsequent to
the date on which a form originally was required to be provided), such
Lender shall not be entitled to indemnification under Section 3.11(a)
or 3.11(b) with respect to Taxes imposed by the United States;
provided, however, that should a Lender, which is otherwise exempt from
or subject to a reduced rate of withholding tax, become subject to
Taxes because of its failure to deliver a form required hereunder, the
Borrower shall take such steps as such Lender shall reasonably request
to assist such Lender to recover such Taxes.
(f) If any Credit Party is required to pay additional amounts
to or for the account of any Lender pursuant to this Section 3.11, then
such Lender will agree to use reasonable efforts to change the
jurisdiction of its Applicable Lending Office so as to eliminate or
reduce any such additional payment which may thereafter accrue if such
change, in the judgment of such Lender, is not otherwise
disadvantageous to such Lender.
(g) Within thirty (30) days after the date of any payment of
Taxes, the applicable Credit Party shall furnish to the Administrative
Agent the original or a certified copy of a receipt evidencing such
payment.
(h) Without prejudice to the survival of any other agreement
of the Credit Parties hereunder, the agreements and obligations of the
Credit Parties contained in this Section 3.11 shall survive the
repayment of the Loans, LOC Obligations and other obligations under the
Credit Documents and the termination of the Commitments hereunder.
3.12. COMPENSATION.
Upon the request of any Lender, the Borrower shall pay to such Lender
such amount or amounts as shall be sufficient (in the reasonable opinion of such
Lender) to compensate it for any loss, cost, or expense (including loss of
anticipated profits) incurred by it as a result of:
(a) any payment, prepayment, or conversion of a Eurodollar
Loan for any reason (including, without limitation, the acceleration of
the Loans pursuant to Section 9.2) on a date other than the last day of
the Interest Period for such Loan; or
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(b) any failure by the Borrower for any reason (including,
without limitation, the failure of any condition precedent specified in
Section 5 to be satisfied) to borrow, convert, continue, or prepay a
Eurodollar Loan on the date for such borrowing, conversion,
continuation, or prepayment specified in the relevant notice of
borrowing, prepayment, continuation, or conversion under this Credit
Agreement.
With respect to Eurodollar Loans, such indemnification may include an
amount equal to the excess, if any, of (a) the amount of interest which would
have accrued on the amount so prepaid, or not so borrowed, converted or
continued, for the period from the date of such prepayment or of such failure to
borrow, convert or continue to the last day of the applicable Interest Period
(or, in the case of a failure to borrow, convert or continue, the Interest
Period that would have commenced on the date of such failure) in each case at
the applicable rate of interest for such Eurodollar Loans provided for herein
(excluding, however, the Applicable Percentage included therein, if any) over
(b) the amount of interest (as reasonably determined by such Lender) which would
have accrued to such Lender on such amount by placing such amount on deposit for
a comparable period with leading banks in the interbank Eurodollar market. The
covenants of the Borrower set forth in this Section 3.12 shall survive the
repayment of the Loans, LOC Obligations and other obligations under the Credit
Documents and the termination of the Commitments hereunder.
3.13. PRO RATA TREATMENT.
Except to the extent otherwise provided herein:
(a) Loans. Each Revolving Loan, each payment or (subject to
the terms of Section 3.3) prepayment of principal of any Revolving Loan
(other than Swingline Loans) or reimbursement obligations arising from
drawings under Letters of Credit, each payment of interest on the
Revolving Loans or reimbursement obligations arising from drawings
under Letters of Credit, each payment of Unused Fees, each payment of
the Standby Letter of Credit Fee, each payment of the Trade Letter of
Credit Fee, each reduction in Revolving Commitments and LOC Commitments
and each conversion or extension of any Revolving Loan, shall be
allocated pro rata among the Revolving Lenders in accordance with the
respective principal amounts of their outstanding Revolving Loans or
Swingline Loans and Participation Interests. With respect to the Term
Loan, each payment or prepayment of principal on the Term Loan, each
payment of interest thereon, and each conversion or extension of any
Loan comprising the Term Loan, shall be allocated pro rata among the
Term Lenders in accordance with the respective principal amounts of
their outstanding Term Loan and Participation Interests therein.
(b) Advances. No Lender shall be responsible for the failure
or delay by any other Lender in its obligation to make its ratable
share of a borrowing hereunder; provided, however, that the failure of
any Lender to fulfill its obligations hereunder shall not relieve any
other Lender of its obligations hereunder. Unless the Administrative
Agent shall have been notified in writing by any Lender prior to the
date of any requested borrowing
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that such Lender does not intend to make available to the
Administrative Agent its ratable share of such borrowing to be made on
such date, the Administrative Agent may assume that such Lender has
made such amount available to the Administrative Agent on the date of
such borrowing, and the Administrative Agent in reliance upon such
assumption, may (in its sole discretion but without any obligation to
do so) make available to the Borrower a corresponding amount. If such
corresponding amount is not in fact made available to the
Administrative Agent, the Administrative Agent shall be able to recover
such corresponding amount from such Lender. If such Lender does not pay
such corresponding amount forthwith upon the Administrative Agent's
demand therefor, the Administrative Agent will promptly notify the
Borrower, and the Borrower shall immediately pay such corresponding
amount to the Administrative Agent. The Administrative Agent shall also
be entitled to recover from the Lender or the Borrower, as the case may
be, interest on such corresponding amount in respect of each day from
the date such corresponding amount was made available by the
Administrative Agent to the Borrower to the date such corresponding
amount is recovered by the Administrative Agent at a per annum rate
equal to (i) from the Borrower at the applicable rate for the
applicable borrowing pursuant to the Notice of Borrowing and (ii) from
a Lender at the Federal Funds Rate.
3.13A TRANCHE C PRO RATA TREATMENT.
With respect to the Tranche C Term Loans, each payment or prepayment of
principal on the Tranche C Term Loans, each payment of interest thereon and each
conversion or extension of any Loan comprising the Tranche C Term Loans, shall
be allocated pro rata among the Tranche C Term Lenders in accordance with the
respective principal amounts of their outstanding Tranche C Term Loans and
Participation Interests therein.
3.14. SHARING OF PAYMENTS.
The Lenders agree among themselves that, in the event that any Lender
shall obtain payment in respect of any Loan, LOC Obligations or any other
obligation owing to such Lender under this Credit Agreement through the exercise
of a right of setoff, banker's lien or counterclaim, or pursuant to a secured
claim under Section 506 of Title 11 of the United States Code or other security
or interest arising from, or in lieu of, such secured claim, received by such
Lender under any applicable bankruptcy, insolvency or other similar law or
otherwise, or by any other means, in excess of its pro rata share of such
payment as provided for in this Credit Agreement, such Lender shall promptly
purchase from the other Lenders a Participation Interest in such Loans, LOC
Obligations and other obligations in such amounts, and make such other
adjustments from time to time, as shall be equitable to the end that all Lenders
share such payment in accordance with their respective ratable shares as
provided for in this Credit Agreement. The Lenders further agree among
themselves that if payment to a Lender obtained by such Lender through the
exercise of a right of setoff, banker's lien, counterclaim or other event as
aforesaid shall be rescinded or must otherwise be restored, each Lender which
shall have shared the benefit of such payment shall, by repurchase of a
Participation Interest theretofore sold, return its share of that benefit
(together with its share of any accrued interest payable with respect thereto)
to each Lender whose payment shall have been rescinded or otherwise restored.
The Borrower agrees that any Lender so purchasing such a Participation Interest
may, to the
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fullest extent permitted by law, exercise all rights of payment, including
setoff, banker's lien or counterclaim, with respect to such Participation
Interest as fully as if such Lender were a holder of such Loan, LOC Obligations
or other obligation in the amount of such Participation Interest. Except as
otherwise expressly provided in this Credit Agreement, if any Lender or the
Administrative Agent shall fail to remit to the Administrative Agent or any
other Lender an amount payable by such Lender or the Administrative Agent to the
Administrative Agent or such other Lender pursuant to this Credit Agreement on
the date when such amount is due, such payments shall be made together with
interest thereon for each date from the date such amount is due until the date
such amount is paid to the Administrative Agent or such other Lender at a rate
per annum equal to the Federal Funds Rate. If under any applicable bankruptcy,
insolvency or other similar law, any Lender receives a secured claim in lieu of
a setoff to which this Section 3.14 applies, such Lender shall, to the extent
practicable, exercise its rights in respect of such secured claim in a manner
consistent with the rights of the Lenders under this Section 3.14 to share in
the benefits of any recovery on such secured claim.
3.15. PAYMENTS, COMPUTATIONS, ETC.
(a) Except as otherwise specifically provided herein, all
payments hereunder shall be made to the Administrative Agent in Dollars
in immediately available funds, without setoff, deduction, counterclaim
or withholding of any kind, at the Administrative Agent's office
specified in Schedule 2.1(a) not later than 2:00 P.M. (Charlotte, North
Carolina time) on the date when due. Payments received after such time
shall be deemed to have been received on the next succeeding Business
Day. The Administrative Agent may (but shall not be obligated to) debit
the amount of any such payment which is not made by such time to any
ordinary deposit account of the Borrower or any other Credit Party
maintained with the Administrative Agent (with notice to the Borrower
or such other Credit Party). The Borrower shall, at the time it makes
any payment under this Credit Agreement, specify to the Administrative
Agent the Loans, LOC Obligations, Fees, interest or other amounts
payable by the Borrower hereunder to which such payment is to be
applied (and in the event that it fails so to specify, or if such
application would be inconsistent with the terms hereof, the
Administrative Agent shall distribute such payment to the Lenders in
such manner as the Administrative Agent may determine to be appropriate
in respect of obligations owing by the Borrower hereunder, subject to
the terms of Section 3.13(a)). The Administrative Agent will distribute
such payments to such Lenders, if any such payment is received prior to
12:00 Noon (Charlotte, North Carolina time) on a Business Day in like
funds as received prior to the end of such Business Day and otherwise
the Administrative Agent will distribute such payment to such Lenders
on the next succeeding Business Day. Whenever any payment hereunder
shall be stated to be due on a day which is not a Business Day, the due
date thereof shall be extended to the next succeeding Business Day
(subject to accrual of interest and Fees for the period of such
extension), except that in the case of Eurodollar Loans, if the
extension would cause the payment to be made in the next following
calendar month, then such payment shall instead be made on the next
preceding Business Day. Except as expressly provided otherwise herein,
all computations of interest and fees shall be made on the basis of
actual number of days elapsed over a year of 360 days, except with
respect to computation of interest on Base Rate Loans which (unless the
Base Rate is determined by reference to the Federal Funds Rate) shall
be calculated based on a year of 365 or 366
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days, as appropriate. Interest shall accrue from and include the date
of borrowing, but exclude the date of payment.
(b) Allocation of Payments After Event of Default.
Notwithstanding any other provisions of this Credit Agreement to the
contrary, after the occurrence and during the continuance of an Event
of Default, all amounts collected or received by the Administrative
Agent or any Lender on account of the Credit Party Obligations or any
other amounts outstanding under any of the Credit Documents or in
respect of the Collateral shall be paid over or delivered as follows:
FIRST, to the payment of all reasonable out-of-pocket costs
and expenses (including without limitation reasonable attorneys' fees)
of the Administrative Agent in connection with enforcing the rights of
the Lenders under the Credit Documents and any protective advances made
by the Administrative Agent with respect to the Collateral under or
pursuant to the terms of the Collateral Documents;
SECOND, to payment of any fees owed to the Administrative
Agent;
THIRD, to the payment of all reasonable out-of-pocket costs
and expenses (including without limitation, reasonable attorneys' fees)
of each of the Lenders in connection with enforcing its rights under
the Credit Documents or otherwise with respect to the Credit Party
Obligations owing to such Lender;
FOURTH, to the payment of all of the Credit Party Obligations
consisting of accrued fees and interest;
FIFTH, to the payment of the outstanding principal amount of
the Credit Party Obligations (including the payment or cash
collateralization of the outstanding LOC Obligations);
SIXTH, to all other Credit Party Obligations and other
obligations which shall have become due and payable under the Credit
Documents or otherwise and not repaid pursuant to clauses "FIRST"
through "FIFTH" above; and
SEVENTH, to the payment of the surplus, if any, to whoever may
be lawfully entitled to receive such surplus.
In carrying out the foregoing, (i) amounts received shall be applied in
the numerical order provided until exhausted prior to application to
the next succeeding category; (ii) each of the Lenders shall receive an
amount equal to its pro rata share (based on the proportion that the
then outstanding Loans and LOC Obligations held by such Lender bears to
the aggregate then outstanding Loans and LOC Obligations) of amounts
available to be applied pursuant to clauses "THIRD", "FOURTH", "FIFTH"
and "SIXTH" above; and (iii) to the extent that any amounts available
for distribution pursuant to clause "FIFTH" above are attributable to
the issued but undrawn amount of outstanding Letters of Credit, such
amounts shall be held by the Administrative Agent in a cash collateral
account and applied (A) first, to reimburse the Issuing Lender from
time to time for any drawings under such Letters of Credit and (B)
then, following the expiration of all Letters of
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Credit, to all other obligations of the types described in clauses
"FIFTH" and "SIXTH" above in the manner provided in this Section
3.15(b).
3.16. EVIDENCE OF DEBT.
(a) Each Lender shall maintain an account or accounts
evidencing each Loan made by such Lender to the Borrower from time to
time, including the amounts of principal and interest payable and paid
to such Lender from time to time under this Credit Agreement. Each
Lender will make reasonable efforts to maintain the accuracy of its
account or accounts and to promptly update its account or accounts from
time to time, as necessary.
(b) The Administrative Agent shall maintain the Register
pursuant to Section 11.3(c), and a subaccount for each Lender, in which
Register and subaccounts (taken together) shall be recorded (i) the
amount, type and Interest Period of each such Loan hereunder, (ii) the
amount of any principal or interest due and payable or to become due
and payable to each Lender hereunder and (iii) the amount of any sum
received by the Administrative Agent hereunder from or for the account
of any Credit Party and each Lender's share thereof. The Administrative
Agent will make reasonable efforts to maintain the accuracy of the
subaccounts referred to in the preceding sentence and to promptly
update such subaccounts from time to time, as necessary.
(c) The entries made in the accounts, Register and subaccounts
maintained pursuant to subsection (b) of this Section 3.16 (and, if
consistent with the entries of the Administrative Agent, subsection
(a)) shall be prima facie evidence of the existence and amounts of the
obligations of the Credit Parties therein recorded; provided, however,
that the failure of any Lender or the Administrative Agent to maintain
any such account, such Register or such subaccount, as applicable, or
any error therein, shall not in any manner affect the obligation of the
Credit Parties to repay the Credit Party obligations owing to such
Lender.
SECTION 4.
GUARANTY
4.1. THE GUARANTY.
The Guarantors hereby jointly and severally guarantee to each Secured
Party, as primary obligor and not as surety, the prompt payment of the Credit
Party Obligations in full when due (whether at stated maturity, as a mandatory
prepayment, by acceleration, as a mandatory cash collateralization or otherwise)
strictly in accordance with the terms thereof. The Guarantors hereby further
agree that if any of the Credit Party Obligations are not paid in full when due
(whether at stated maturity, as a mandatory prepayment, by acceleration, as a
mandatory cash collateralization or otherwise), the Guarantors will, jointly and
severally, promptly pay the same, without any demand or notice whatsoever, and
that in the case of any extension of time of payment or renewal of any of the
Credit Party Obligations, the same will be promptly paid in full when due
(whether at extended maturity, as a mandatory prepayment, by acceleration, as a
mandatory cash collateralization or otherwise) in accordance with the terms of
such extension or renewal.
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Notwithstanding any provision to the contrary contained herein or in
any other of the Credit Documents or Hedging Agreements, the obligations of each
Guarantor hereunder shall be limited to an aggregate amount equal to the largest
amount that would not render its obligations hereunder subject to avoidance
under Section 548 of the Bankruptcy Code or any comparable provisions of any
applicable state law.
4.2. OBLIGATIONS UNCONDITIONAL.
The obligations of the Guarantors under Section 4.1 are joint and
several, absolute and unconditional, irrespective of the value, genuineness,
validity, regularity or enforceability of any of the Credit Documents or Hedging
Agreements, or any other agreement or instrument referred to therein, or any
substitution, release, impairment or exchange of any Guarantor or other
guarantee of or security for any of the Credit Party Obligations, and, to the
fullest extent permitted by applicable law, irrespective of any other
circumstance whatsoever which might otherwise constitute a legal or equitable
discharge or defense of a surety or guarantor, it being the intent of this
Section 4.2 that the obligations of the Guarantors hereunder shall be absolute
and unconditional under any and all circumstances. Each Guarantor agrees that
such Guarantor shall have no right of subrogation, indemnity, reimbursement or
contribution against the Borrower or any other Guarantor for amounts paid under
this Section 4 until such time as the Secured Parties have been paid in full,
all Commitments under this Credit Agreement have been terminated and no Person
or Governmental Authority shall have any right to request any return or
reimbursement of funds from the Secured Parties in connection with monies
received under the Credit Documents or Hedging Agreements. Without limiting the
generality of the foregoing, it is agreed that, to the fullest extent permitted
by law, the occurrence of any one or more of the following shall not alter or
impair the liability of any Guarantor hereunder which shall remain absolute and
unconditional as described above:
(a) at any time or from time to time, without notice to any
Guarantor, the time for any performance of or compliance with any of
the Credit Party Obligations shall be extended, or such performance or
compliance shall be waived;
(b) any of the acts mentioned in any of the provisions of any
of the Credit Documents, any Hedging Agreement or any other agreement
or instrument referred to in the Credit Documents or Hedging Agreements
shall be done or omitted;
(c) the maturity of any of the Credit Party Obligations shall
be accelerated, or any of the Credit Party Obligations shall be
modified, supplemented or amended in any respect, or any right under
any of the Credit Documents, any Hedging Agreement or any other
agreement or instrument referred to in the Credit Documents or Hedging
Agreements shall be waived or any other guarantee of any of the Credit
Party Obligations or any security therefor shall be released, impaired
or exchanged in whole or in part or otherwise dealt with;
(d) any Lien granted to, or in favor of, the Administrative
Agent or any Secured Party as security for any of the Credit Party
Obligations shall fail to attach or be perfected;
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(e) any of the Credit Party Obligations shall be determined to
be void or voidable (including, without limitation, for the benefit of
any creditor of any Guarantor) or shall be subordinated to the claims
of any Person (including, without limitation, any creditor of any
Guarantor); or
(f) the occurrence of any Bankruptcy Event with respect to any
Consolidated Party.
With respect to its obligations hereunder, each Guarantor hereby expressly
waives diligence, presentment, demand of payment, protest and all notices
whatsoever, and any requirement that the Administrative Agent or any other
Secured Party exhaust any right, power or remedy or proceed against any Person
under any of the Credit Documents, any Hedging Agreement or any other agreement
or instrument referred to in the Credit Documents or Hedging Agreements, or
against any other Person under any other guarantee of, or security for, any of
the Credit Party Obligations.
4.3. REINSTATEMENT.
The obligations of the Guarantors under this Section 4 shall be
automatically reinstated if and to the extent that for any reason any payment by
or on behalf of any Person in respect of the Credit Party Obligations is
rescinded or must be otherwise restored by any holder of any of the Credit Party
Obligations, whether as a result of any proceedings in bankruptcy or
reorganization or otherwise, and each Guarantor agrees that it will indemnify
the Administrative Agent and each other Secured Party on demand for all
reasonable costs and expenses (including, without limitation, fees and expenses
of counsel) incurred by the Administrative Agent or such other Secured Party in
connection with such rescission or restoration, including any such costs and
expenses incurred in defending against any claim alleging that such payment
constituted a preference, fraudulent transfer or similar payment under any
bankruptcy, insolvency or similar law.
4.4. CERTAIN ADDITIONAL WAIVERS.
Each Guarantor agrees that such Guarantor shall have no right of
recourse to security for the Credit Party Obligations, except through the
exercise of rights of subrogation pursuant to Section 4.2 and through the
exercise of rights of contribution pursuant to Section 4.6.
4.5. REMEDIES.
The Guarantors agree that, to the fullest extent permitted by law, as
between the Guarantors, on the one hand, and the Administrative Agent and the
other Secured Parties, on the other hand, the Credit Party Obligations may be
declared to be forthwith due and payable as provided in Section 9.2 (and shall
be deemed to have become automatically due and payable in the circumstances
provided in said Section 9.2) for purposes of Section 4.1 notwithstanding any
stay, injunction or other prohibition preventing such declaration (or preventing
the Credit Party Obligations from becoming automatically due and payable) as
against any other Person and that, in the event of such declaration (or the
Credit Party Obligations being deemed to have become automatically due and
payable), the Credit Party Obligations (whether or not due and payable by any
other Person) shall forthwith become due and payable by the Guarantors for
purposes of Section 4.1. The Guarantors acknowledge and agree that their
obligations hereunder are secured
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in accordance with the terms of the Security Agreement and the other Collateral
Documents and that the Secured Parties may exercise their remedies thereunder in
accordance with the terms thereof.
4.6. RIGHTS OF CONTRIBUTION.
The Guarantors hereby agree as among themselves that, if any Guarantor
shall make an Excess Payment (as defined below), such Guarantor shall have a
right of contribution from each other Guarantor in an amount equal to such other
Guarantor's Contribution Share (as defined below) of such Excess Payment. The
payment obligations of any Guarantor under this Section 4.6 shall be subordinate
and subject in right of payment to the prior payment in full to the
Administrative Agent and the other Secured Parties of the Guaranteed
Obligations, and none of the Guarantors shall exercise any right or remedy under
this Section 4.6 against any other Guarantor until payment and satisfaction in
full of all of such Guaranteed Obligations. For purposes of this Section 4.6,
(a) "Guaranteed Obligations" shall mean any obligations arising under the other
provisions of this Section 4; (b) "Excess Payment" shall mean the amount paid by
any Guarantor in excess of its Pro Rata Share of any Guaranteed Obligations; (c)
"Pro Rata Share" shall mean, for any Guarantor in respect of any payment of
Guaranteed Obligations, the ratio (expressed as a percentage) as of the date of
such payment of Guaranteed Obligations of (i) the amount by which the aggregate
present fair salable value of all of its assets and properties exceeds the
amount of all debts and liabilities of such Guarantor (including contingent,
subordinated, unmatured, and unliquidated liabilities, but excluding the
obligations of such Guarantor hereunder) to (ii) the amount by which the
aggregate present fair salable value of all assets and other properties of all
of the Credit Parties exceeds the amount of all of the debts and liabilities
(including contingent, subordinated, unmatured, and unliquidated liabilities,
but excluding the obligations of the Credit Parties hereunder) of the Credit
Parties; provided, however, that, for purposes of calculating the Pro Rata
Shares of the Guarantors in respect of any payment of Guaranteed Obligations,
any Guarantor that became a Guarantor subsequent to the date of any such payment
shall be deemed to have been a Guarantor on the date of such payment and the
financial information for such Guarantor as of the date such Guarantor became a
Guarantor shall be utilized for such Guarantor in connection with such payment;
and (d) "Contribution Share" shall mean, for any Guarantor in respect of any
Excess Payment made by any other Guarantor, the ratio (expressed as a
percentage) as of the date of such Excess Payment of (i) the amount by which the
aggregate present fair salable value of all of its assets and properties exceeds
the amount of all debts and liabilities of such Guarantor (including contingent,
subordinated, unmatured, and unliquidated liabilities, but excluding the
obligations of such Guarantor hereunder) to (ii) the amount by which the
aggregate present fair salable value of all assets and other properties of the
Credit Parties other than the maker of such Excess Payment exceeds the amount of
all of the debts and liabilities (including contingent, subordinated, unmatured,
and unliquidated liabilities, but excluding the obligations of the Credit
Parties) of the Credit Parties other than the maker of such Excess Payment;
provided, however, that, for purposes of calculating the Contribution Shares of
the Guarantors in respect of any Excess Payment, any Guarantor that became a
Guarantor subsequent to the date of any such Excess Payment shall be deemed to
have been a Guarantor on the date of such Excess Payment and the financial
information for such Guarantor as of the date such Guarantor became a Guarantor
shall be utilized for such Guarantor in connection with such Excess Payment.
This Section 4.6 shall not be deemed to affect any right of subrogation,
indemnity, reimbursement or contribution that
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any Guarantor may have under applicable law against the Borrower in respect of
any payment of Guaranteed Obligations.
4.7. GUARANTEE OF PAYMENT; CONTINUING GUARANTEE.
The guarantee in this Section 4 is a guaranty of payment and not of
collection, is a continuing guarantee, and shall apply to all Credit Party
Obligations whenever arising.
SECTION 5.
CONDITIONS
5.1. CONDITIONS TO EFFECTIVENESS.
The effectiveness of this amendment and restatement of the Original
Credit Agreement is subject to satisfaction of each of the following conditions:
(a) Executed Credit Documents. Receipt by the Administrative
Agent of: (i) this Credit Agreement, duly executed by the Borrower, the
Subsidiary Guarantors, the Amending Lenders, the Tranche C Term
Lenders, the Administrative Agent, the Documentation Agent, the
Syndication Agent, Co-Agent and the Lead Arranger, (ii) any Notes
requested by the applicable Lender (against return of any notes issued
to such Lender under the Original Credit Agreement), duly executed by
the Borrower, (iii) the Security Agreement, duly executed by each
Credit Party and the Administrative Agent, (iv) the Pledge Agreement,
duly executed by each Credit Party and the Administrative Agent and (v)
all other Credit Documents, duly executed by the parties thereto, each
in form and substance acceptable to the Administrative Agent.
(b) Corporate Documents. Receipt by the Administrative Agent
of the following:
(i) Charter Documents. Copies of the articles or
certificates of incorporation or other charter documents of
each Credit Party certified to be true and complete as of a
recent date by the appropriate Governmental Authority of the
state or other jurisdiction of its incorporation and certified
by a secretary or assistant secretary of such Credit Party to
be true and correct as of the Restatement Effective Date.
(ii) Bylaws. A copy of the bylaws of each Credit
Party certified by a secretary or assistant secretary of such
Credit Party to be true and correct as of the Restatement
Effective Date.
(iii) Resolutions. Copies of resolutions of the Board
of Directors of each Credit Party approving and adopting the
Credit Documents to which it is a party, the transactions
contemplated therein and authorizing execution and delivery
thereof, certified by a secretary or assistant secretary of
such Credit Party to be true and correct and in force and
effect as of the Restatement Effective Date.
(iv) Good Standing. Copies of certificates of good
standing, existence or its equivalent with respect to each
Credit Party certified as of a recent date by the
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appropriate Governmental Authorities of the state or other
jurisdiction of incorporation and each other jurisdiction in
which the failure to so qualify and be in good standing could
have a Material Adverse Effect.
(v) Incumbency. An incumbency certificate of each
Credit Party certified by a secretary or assistant secretary
to be true and correct as of the Restatement Effective Date.
(vi) Mergers; Name Change. Evidence from the
applicable Governmental Authorities as to (a) the due and
proper merger with and into the Borrower of those Subsidiary
Guarantors party to the Original Credit Agreement on the
Original Closing Date which are not party to this Credit
Agreement and (b) the due and proper name change of the
Borrower from "Prison Realty Corporation" to "Prison Realty
Trust, Inc."
(c) Financial Forecasts. The Administrative Agent shall have
received detailed financial forecasts for the Borrower, Management
Opco, Service Company A and Service Company B for the fiscal periods
1999-2003, including income statements, balance sheets and cash flow
statements, in each case based on (and including) reasonable operating
and accounting assumptions and otherwise in form and substance
reasonably satisfactory to the Administrative Agent.
(d) Opinions of Counsel. The Administrative Agent shall have
received legal opinions from (i) Simpson Thacher & Bartlett, (ii) Miles
& Stockbridge, (iii) Stokes & Bartholomew and (iv) North Carolina
counsel, each in form and substance reasonably satisfactory to the
Administrative Agent, dated the Restatement Effective Date and
addressed to each of the Administrative Agent, the Documentation Agent,
the Syndication Agent, the Co-Agent, the Lead Arranger and each of the
Lenders.
(e) Personal Property Collateral. The Administrative Agent
shall have received (either from the Borrower or from the Original
Administrative Agent, as appropriate):
(i) duly-executed UCC financing statement amendments
and/or assignments with respect to all UCC-1 financing
statements and fixture filings originally executed and
delivered on the Original Closing Date by the Credit Parties
under the Original Credit Agreement who are parties to this
Credit Agreement and the Original Administrative Agent, as
applicable, in each case reflecting the assignment of such
financing statements to the Administrative Agent by the
Original Administrative Agent, reflecting the recent name
change of the Borrower and, if necessary, reflecting the
amendment and restatement of the Original Credit Agreement by
this Credit Agreement, as well as any other instruments and
documents in form and substance reasonably satisfactory to the
Administrative Agent necessary or, in the opinion of the
Administrative Agent, desirable to continue the perfection and
priority of the Administrative Agent's (as assignee of the
Original Administrative Agent) security interest in any
Collateral granted by any Credit Party on the Original Closing
Date pursuant to the Collateral Documents (as defined in the
Original Credit Agreement).
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(ii) all stock certificates evidencing the Capital
Stock pledged to the Administrative Agent pursuant to the
Pledge Agreement, together with duly executed in blank,
undated stock powers attached thereto (unless, with respect to
the pledged Capital Stock of any Foreign Subsidiary, such
stock powers are deemed unnecessary by the Administrative
Agent in its reasonable discretion under the law of the
jurisdiction of incorporation of such Person);
(iii) such patent/trademark/copyright filings (or
amendments thereto) as requested by the Administrative Agent
in order to perfect or continue the perfection of the
Administrative Agent's security interest in such Collateral
after giving effect to this Credit Agreement;
(iv) all instruments and chattel paper in the
possession of any of the Credit Parties or the Original
Administrative Agent (including, without limitation, the
Management Opco Note and the Agecroft Note), together with
allonges or assignments as may be necessary or appropriate to
perfect or continue the perfection of the Administrative
Agent's security interest in such Collateral after giving
effect to this Credit Agreement;
(v) duly executed consents as are necessary, in the
Administrative Agent's reasonable judgment, to perfect or
continue the perfection of the Administrative Agent's security
interest in the Collateral after giving effect to this Credit
Agreement;
(vi) in the case of any personal property Collateral
located at a premises leased to a Credit Party, such estoppel
letters, consents and waivers (or amendments to any of the
foregoing) from the landlords on such real property as may be
required by the Administrative Agent; and
(vii) duly-executed termination statements or other
releases for any Liens (other than Permitted Liens) existing
on the Restatement Effective Date.
(f) Real Property Collateral. The Administrative Agent shall
have received, in form and substance satisfactory to the Administrative
Agent:
(i) fully executed and notarized amendments or
amendments and restatements of all mortgages, deeds of trust
or deeds to secure debt granted in connection with the
Original Credit Agreement or, in the Administrative Agent's
sole discretion, mortgages, deeds of trust or deeds to secure
debt in favor of the Administrative Agent (each such
amendment, restatement, mortgage, deed of trust and deed to
secure debt, a "Mortgage" and collectively as "Mortgages") for
(a) the real property assets owned by the Borrower set forth
on Schedule 5.1(f)(i) and (b) each leasehold estate of the
Borrower set forth on Schedule 5.1(f)(i) (each of those real
property assets and leasehold estates on Schedule 5.1(f)(i),
an "Existing Property" and collectively, the "Existing
Properties"), together with such UCC-1 financing statements
(or UCC-3 amendments and/or assignments of financing
statements
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filed in connection with the Original Credit Agreement), as
the Administrative Agent shall deem appropriate with respect
to each such Existing Property;
(ii) (A) Endorsements (the "Title Endorsements") to
all Mortgage Policies (as defined in the Original Credit
Agreement) that were issued pursuant to the terms of the
Original Credit Agreement, which Title Endorsements shall be
issued by the title insurer that issued such Mortgage Policies
and which shall specifically insure the priority of the lien
of the Mortgages (as defined in the Original Credit Agreement)
as amended by the Mortgages contemplated hereby, and (B) with
respect to any Existing Property that was acquired after the
date of the Original Credit agreement or that for any other
reason does not have in place a "Mortgage Policy" (as defined
in the Original Credit Agreement) in accordance with the terms
of the Original Credit Agreement, ALTA or other appropriate
form mortgagee title insurance policies (the "Mortgage
Policies") issued by a title insurer satisfactory to the
Administrative Agent (the "Title Insurance Company"), in an
amount satisfactory to the Administrative Agent with respect
to each Existing Property, assuring the Administrative Agent
that the applicable Mortgages create valid and enforceable
first priority mortgage liens on the respective Existing
Properties, free and clear of all defects and encumbrances
except Permitted Liens, which Title Endorsements or Mortgage
Policies shall be in form and substance satisfactory to the
Administrative Agent and contain such endorsements as shall be
satisfactory to the Administrative Agent and for any other
matters that the Administrative Agent may request, and
providing affirmative insurance and such reinsurance as the
Administrative Agent may request, all of the foregoing in form
and substance reasonably satisfactory to the Administrative
Agent;
(iii) maps or plats of a survey of the sites of the
Existing Properties certified to the Administrative Agent and
the Title Insurance Company in a manner reasonably
satisfactory to them, dated a date satisfactory to the
Administrative Agent and the Title Insurance Company by an
independent professional licensed land surveyor reasonably
satisfactory to the Administrative Agent and the Title
Insurance Company, and otherwise in form and substance
satisfactory to the Administrative Agent;
(iv) (A) an opinion of counsel (which counsel shall
be satisfactory to the Administrative Agent) in the states of
Tennessee, Arizona, California, Colorado, Oklahoma, Texas and
North Carolina with respect to the enforceability of the
Mortgages, standard remedies with respect thereto, the
sufficiency of the form of UCC-1 financing statements or UCC-3
amendments and/or assignments to be recorded or filed in such
state, the continued perfection and priority of the Liens
evidenced thereby and such other matters as the Administrative
Agent may request, in form and substance satisfactory to the
Administrative Agent and (B) reliance letters in favor of the
Administrative Agent, as agent for the Secured Parties, from
counsel in the states of Florida, Georgia, Kansas, Kentucky,
Minnesota, Montana, New Mexico, Nevada and Ohio with respect
to the legal opinions delivered by such counsel in connection
with the Original Credit Agreement;
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(v) with respect to any Existing Property for which
such a certification was not delivered pursuant to the
Original Credit Agreement, certification from Bankers Hazard
Determination Services or Borrower's land surveyor in a form
reasonably satisfactory to the Administrative Agent or other
evidence acceptable to the Administrative Agent that none of
the improvements on the Existing Properties are located within
any area designated by the Director of the Federal Emergency
Management Agency as a "special flood hazard" area; and,
regardless of any deliveries made pursuant to the Original
Credit Agreement, if any improvements on the Existing
Properties are located within a "special flood hazard" area,
evidence of a flood insurance policy from a company and in an
amount satisfactory to the Administrative Agent for the
applicable portion of the premises, naming the Administrative
Agent, for the benefit of the Secured Parties, as mortgagee,
provided, that delivery of such certifications and flood
insurance may be made within 90 days after the Restatement
Effective Date.;
(g) Subordination. With respect to each of the Existing
Properties owned by the Borrower and leased to Management Opco, the
Administrative Agent shall have received, in form and substance
satisfactory to the Administrative Agent, an amended and restated
subordination of lease agreement from Management Opco with respect to
all such Existing Properties.
(h) Environmental Reports. Except for those Existing
Properties identified on Schedule 7.19, for which environmental site
assessment reports were previously delivered to the Original
Administrative Agent, the Administrative Agent shall have received, in
form and substance satisfactory to the Administrative Agent,
environmental site assessment reports and related documents with
respect to all Existing Properties.
(i) Priority of Liens. The Administrative Agent shall have
received such other satisfactory evidence as it may reasonably require
that, after giving effect to this Credit Agreement, (i) the
Administrative Agent, on behalf of the Secured Parties, holds a
perfected, first priority Lien on all Collateral and (ii) none of the
Collateral is subject to any other Liens other than Permitted Liens.
(j) Opening Borrowing Base. Receipt by the Administrative
Agent of a Borrowing Base Certificate as of the Closing Date,
substantially in the form of Exhibit 7.1(e), and certified by the chief
financial officer of the Borrower to be true and correct as of the
Restatement Effective Date.
(k) Evidence of Insurance. Receipt by the Administrative Agent
of copies of insurance policies or certificates of insurance of the
Consolidated Parties evidencing liability and casualty insurance
meeting the requirements set forth in the Credit Documents, including,
but not limited to, naming the Administrative Agent as sole loss payee
on behalf of the Secured Parties and the Administrative Agent and the
other Secured Parties as additional insureds, each as appropriate.
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(l) Approval of Amendment. This Credit Agreement shall have
been consented to in writing by the requisite lenders under the
Original Credit Agreement.
(m) Senior Notes Documents. The Administrative Agent shall
have received from the Borrower (and certified thereto by an Executive
Officer of the Borrower as to authenticity) duly executed copies of
each of the Senior Notes Documents.
(n) No Default. On the Restatement Effective Date, no Default
or Event of Default shall have occurred and be continuing.
(o) Representations and Warranties True. On the Restatement
Effective Date, the representations and warranties set forth in Section
6 and in the other Credit Documents shall be true and correct in all
material respects as of such date (except for those which expressly
relate to an earlier date).
(p) Officer's Certificates. The Administrative Agent shall
have received a certificate or certificates executed by an Executive
Officer of the Borrower as of the Restatement Effective Date stating
that (A) each Credit Party is in compliance with all existing material
financial obligations, (B) all material governmental, shareholder and
third party consents and approvals, if any, with respect to the Credit
Documents and the transactions contemplated thereby have been obtained,
(C) no action, suit, investigation or proceeding is pending or, to the
knowledge of the Borrower, threatened in any court or before any
arbitrator or governmental instrumentality that purports to affect any
Credit Party or any transaction contemplated by the Credit Documents,
if such action, suit, investigation or proceeding could reasonably be
expected to have a Material Adverse Effect, and (D) immediately after
giving effect to this Credit Agreement, the other Credit Documents and
all the transactions contemplated therein to occur on such date, (1)
each of the Credit Parties is Solvent, (2) no Default or Event of
Default exists, (3) all representations and warranties contained herein
and in the other Credit Documents are true and correct in all material
respects, and (4) the Credit Parties are in compliance with each of the
financial covenants set forth in Section 7.11.
(q) Compliance Certificate. The Administrative Agent shall
have received a certificate executed by the chief financial officer of
the Borrower, demonstrating compliance with the financial covenants
contained in Section 7.11 (based on the projections (and annualized,
where appropriate) of the Borrower for the first fiscal quarter
following the Restatement Effective Date).
(r) Fees and Expenses. Payment by the Credit Parties of all
fees and expenses owed by them to the Lenders and the Administrative
Agent.
(s) Other Collateral. The Administrative Agent shall have
received (i) from the Original Administrative Agent and/or the
Borrower, a full and complete set of closing documents in connection
with the Original Credit Agreement and (ii) from the Original
Administrative Agent, any other Collateral delivered to it in
connection with the Original Credit Agreement.
(t) Other. Receipt by the Lenders of such other documents,
instruments, agreements or information as reasonably requested by any
Lender.
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5.2. CONDITIONS TO ALL EXTENSIONS OF CREDIT.
The obligations of each Lender to make any Loan and of the Issuing
Lender to issue or extend any Letter of Credit are subject to satisfaction of
the following conditions in addition to satisfaction on the Restatement
Effective Date of the conditions set forth in Section 5.1:
(a) The Borrower shall have delivered (i) to the
Administrative Agent, in the case of any Revolving Loan or the Tranche
C Term Loans, a Notice of Borrowing or (ii) to the relevant Issuing
Lender, in the case of any Letter of Credit, an appropriate request for
issuance in accordance with the provisions of Section 2.2(b);
(b) The representations and warranties set forth in Section 6
shall, subject to the limitations set forth therein, be true and
correct in all material respects as of such date (except for those
which expressly relate to an earlier date);
(c) There shall not have been commenced against any
Consolidated Party an involuntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, or any
case, proceeding or other action for the appointment of a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or similar
official) of such Person or for any substantial part of its Property or
for the winding up or liquidation of its affairs, and such involuntary
case or other case, proceeding or other action shall remain
undismissed, undischarged or unbonded;
(d) No Default or Event of Default shall exist and be
continuing either prior to or after giving effect thereto;
(e) No circumstances, events or conditions shall have occurred
since December 31, 1998, which would have a Material Adverse Effect;
and
(f) Immediately after giving effect to the making of such Loan
(and the application of the proceeds thereof) or to the issuance of
such Letter of Credit, as the case may be, (i) the sum of the aggregate
principal amount of outstanding Obligations shall not exceed the lesser
of (A) the Aggregate Committed Amount and (B) the Borrowing Base and
(ii) the LOC Obligations shall not exceed the LOC Committed Amount.
The delivery of each Notice of Borrowing, each request for a Swingline Loan
pursuant to Section 2.3(b) and each request for a Letter of Credit pursuant to
Section 2.2(b) shall constitute a representation and warranty by the Credit
Parties of the correctness as of the date of such delivery of the matters
specified in subsections (b), (c), (d), (e) and (f) above.
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SECTION 6.
REPRESENTATIONS AND WARRANTIES
The Credit Parties hereby represent to the Administrative Agent and
each Lender that:
6.1. FINANCIAL CONDITION.
The financial statements delivered to the Lenders pursuant to Section
5.1(c) and Section 7.1(a) and (b), (i) have been prepared in accordance with
GAAP and (ii) present fairly (on the basis disclosed in the footnotes to such
financial statements) the consolidated financial condition, results of
operations and cash flows of the Consolidated Parties and Unrestricted
Subsidiaries as of such date and for such periods.
6.2. NO MATERIAL CHANGE.
Since December 31, 1998 (a) there has been no development or event
relating to or affecting a Consolidated Party or Unrestricted Subsidiary which
has had or could reasonably be expected to have a Material Adverse Effect and
(b) except as otherwise permitted under this Credit Agreement, no dividends or
other distributions have been declared, paid or made upon the Capital Stock in a
Consolidated Party nor has any of the Capital Stock in a Consolidated Party been
redeemed, retired, purchased or otherwise acquired for value.
6.3. ORGANIZATION AND GOOD STANDING.
Each of the Consolidated Parties and Unrestricted Subsidiaries (a) is
duly organized, validly existing and is in good standing under the laws of the
jurisdiction of its incorporation or organization, except, with respect to any
Unrestricted Subsidiary, to the extent the failure to be so organized, existing
or in good standing could not reasonably be expected to have a Material Adverse
Effect, (b) has the corporate or other necessary power and authority, and the
legal right, to own and operate its property, to lease the property it operates
as lessee and to conduct the business in which it is currently engaged, except,
with respect to any Unrestricted Subsidiary, to the extent the failure to have
such power, authority or right could not reasonably be expected to have a
Material Adverse Effect and (c) is duly qualified as a foreign entity and in
good standing under the laws of each jurisdiction where its ownership, lease or
operation of property or the conduct of its business requires such
qualification, other than in such jurisdictions where the failure to be so
qualified and in good standing could have a Material Adverse Effect.
Furthermore, the Borrower has conducted its business so as to qualify as a REIT
in 2000, and subsequent to qualifying as a REIT in 2000 the Borrower will
maintain its status as a REIT.
6.4. POWER; AUTHORIZATION; ENFORCEABLE OBLIGATIONS.
Each of the Credit Parties has the corporate or other necessary power
and authority, and the legal right, to make, deliver and perform the Credit
Documents to which it is a party, and in the case of the Borrower, to obtain
extensions of credit hereunder, and has taken all necessary corporate action to
authorize the borrowings and other extensions of credit on the terms and
conditions of this Credit Agreement and to authorize the execution, delivery and
performance of the Credit Documents to which it is a party. No consent or
authorization of, filing with, notice to or other similar act by or in respect
of, any Governmental Authority or any other Person is required to be obtained or
made by or on behalf of any Credit Party in connection with the borrowings or
other extensions of credit hereunder or with the execution, delivery,
performance, validity or enforceability of the Credit Documents to which such
Credit Party is a party, except for filings to perfect the Liens created by the
Collateral Documents, and except for consents,
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authorizations, filings or notices which have been obtained or made. This Credit
Agreement has been, and each other Credit Document to which any Credit Party is
a party will be, duly executed and delivered on behalf of the Credit Parties.
This Credit Agreement constitutes, and each other Credit Document to which any
Credit Party is a party when executed and delivered will constitute, a legal,
valid and binding obligation of such Credit Party enforceable against such party
in accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally and by general
equitable principles (whether enforcement is sought by proceedings in equity or
at law). The amendments of the Original Credit Agreement reflected herein have
been validly approved as required under Section 11.6 of the Original Credit
Agreement and such amendments are binding on the Lenders.
6.5. NO CONFLICTS.
Neither the execution and delivery of the Credit Documents, nor the
consummation of the transactions contemplated therein, nor performance of and
compliance with the terms and provisions thereof by such Credit Party will (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) violate,
contravene or conflict with contractual provisions of, or cause an event of
default under, any indenture, loan agreement, mortgage, deed of trust, contract
or other agreement or instrument to which it is a party or by which it may be
bound, except for any violation, contravention or conflict which could not
reasonably be expected to have a Material Adverse Effect, or (d) result in or
require the creation of any Lien (other than those contemplated in or created in
connection with the Credit Documents) upon or with respect to its properties.
6.6. NO DEFAULT.
No Consolidated Party or Unrestricted Subsidiary is in default in any
respect under any contract, lease, loan agreement, indenture, mortgage, security
agreement or other agreement or obligation to which it is a party or by which
any of its properties is bound which default could reasonably be expected to
have a Material Adverse Effect.
6.7. OWNERSHIP.
Each Consolidated Party is the owner of, and has good and marketable
title to, all of its respective material assets, and none of such assets is
subject to any Lien other than Permitted Liens.
6.8. INDEBTEDNESS.
Except as otherwise permitted under Section 8.1, none of the
Consolidated Parties or Unrestricted Subsidiaries have any Indebtedness.
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6.9. LITIGATION.
Subject to Schedule 6.9, there are no actions, suits or legal,
equitable, arbitration or administrative proceedings, pending or, to the
knowledge of any Credit Party, threatened against any Consolidated Party or
Unrestricted Subsidiary which could reasonably be expected to have a Material
Adverse Effect.
6.10. TAXES.
Each Consolidated Party and Unrestricted Subsidiary has filed, or
caused to be filed, all tax returns (federal, state, local and foreign) required
to be filed and paid (a) all amounts of taxes shown thereon to be due (including
interest and penalties), and (b) all other taxes, fees, assessments and other
governmental charges (including mortgage recording taxes, documentary stamp
taxes and intangibles taxes) owing by it, except for such taxes (i) which are
not yet delinquent, (ii) that are being contested in good faith and by proper
proceedings, and against which adequate reserves are being maintained in
accordance with GAAP or (iii) that if unpaid could not reasonably be expected to
have a Material Adverse Effect. No Credit Party is aware as of the Restatement
Effective Date of any proposed tax assessments against it, any other
Consolidated Party or any Unrestricted Subsidiary, except to the extent such tax
assessment could not reasonably be expected to have a Material Adverse Effect.
6.11. COMPLIANCE WITH LAW.
Each Consolidated Party and Unrestricted Subsidiary is in compliance
with all Requirements of Law and all other laws, rules, regulations, orders and
decrees (including without limitation Environmental Laws) applicable to it, or
to its properties, unless such failure to comply could not reasonably be
expected to have a Material Adverse Effect.
6.12. ERISA.
(a) During the five-year period prior to the date on which
this representation is made or deemed made: (i) no ERISA Event has
occurred, and, to the best knowledge of the Credit Parties, no event or
condition has occurred or exists as a result of which any ERISA Event
could reasonably be expected to occur, with respect to any Plan; (ii)
no "accumulated funding deficiency," as such term is defined in Section
302 of ERISA and Section 412 of the Code, whether or not waived, has
occurred with respect to any Plan; (iii) each Plan has been maintained,
operated, and funded in compliance with its own terms and in material
compliance with the provisions of ERISA, the Code, and any other
applicable federal or state laws; and (iv) no lien in favor of the PBGC
or a Plan has arisen or is reasonably likely to arise on account of any
Plan.
(b) The actuarial present value of all "benefit liabilities"
(as defined in Section 4001(a)(16) of ERISA), whether or not vested,
under each Single Employer Plan, as of the last annual valuation date
prior to the date on which this representation is made or deemed made
(determined, in each case, in accordance with Financial Accounting
Standards Board Statement 87, utilizing the actuarial assumptions used
in such Plan's most recent actuarial valuation report), did not exceed
as of such valuation date the fair market value of the assets of such
Plan.
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(c) Neither any Consolidated Party nor any ERISA Affiliate has
incurred, or, to the best knowledge of the Credit Parties, could be
reasonably expected to incur, any withdrawal liability under ERISA to
any Multiemployer Plan or Multiple Employer Plan. Neither any
Consolidated Party nor any ERISA Affiliate would become subject to any
withdrawal liability under ERISA if any Consolidated Party or any ERISA
Affiliate were to withdraw completely from all Multiemployer Plans and
Multiple Employer Plans as of the valuation date most closely preceding
the date on which this representation is made or deemed made. Neither
any Consolidated Party nor any ERISA Affiliate has received any
notification that any Multiemployer Plan is in reorganization (within
the meaning of Section 4241 of ERISA), is insolvent (within the meaning
of Section 4245 of ERISA), or has been terminated (within the meaning
of Title IV of ERISA), and no Multiemployer Plan is, to the best
knowledge of the Credit Parties, reasonably expected to be in
reorganization, insolvent, or terminated.
(d) No prohibited transaction (within the meaning of Section
406 of ERISA or Section 4975 of the Code) or breach of fiduciary
responsibility has occurred with respect to a Plan which has subjected
or may subject any Consolidated Party or any ERISA Affiliate to any
liability under Sections 406, 409, 502(i), or 502(l) of ERISA or
Section 4975 of the Code, or under any agreement or other instrument
pursuant to which any Consolidated Party or any ERISA Affiliate has
agreed or is required to indemnify any Person against any such
liability.
(e) Neither any Consolidated Party nor any ERISA Affiliates
has any material liability with respect to "expected post-retirement
benefit obligations" within the meaning of the Financial Accounting
Standards Board Statement 106. Each Plan which is a welfare plan (as
defined in Section 3(1) of ERISA) to which Sections 601-609 of ERISA
and Section 4980B of the Code apply has been administered in compliance
in all material respects of such sections.
(f) Neither the execution and delivery of this Credit
Agreement nor the consummation of the financing transactions
contemplated thereunder will involve any transaction which is subject
to the prohibitions of Sections 404, 406 or 407 of ERISA or in
connection with which a tax could be imposed pursuant to Section 4975
of the Code. The representation by the Credit Parties in the preceding
sentence is made in reliance upon and subject to the accuracy of the
Lenders' representation in Section 11.15 with respect to their source
of funds and is subject, in the event that the source of the funds used
by the Lenders in connection with this transaction is an insurance
company's general asset account, to the application of Prohibited
Transaction Class Exemption 95-60, 60 Fed. Reg. 35,925 (1995),
compliance with the regulations issued under Section 401(c)(1)(A) of
ERISA, or the issuance of any other prohibited transaction exemption or
similar relief, to the effect that assets in an insurance company's
general asset account do not constitute assets of an "employee benefit
plan" within the meaning of Section 3(3) of ERISA of a "plan" within
the meaning of Section 4975(e)(1) of the Code.
6.13. SUBSIDIARIES.
Set forth on Schedule 6.13 is a complete and accurate list as of the
Restatement Effective Date of all Restricted Subsidiaries of each Consolidated
Party and all Unrestricted Subsidiaries
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of each Consolidated Party (listed separately). The information on Schedule 6.13
includes jurisdiction of incorporation, the number of shares of each class of
Capital Stock outstanding, the number and percentage of outstanding shares of
each class owned (directly or indirectly) by such Consolidated Party or
Unrestricted Subsidiary, and the number and effect, if exercised, of all
outstanding options, warrants, rights of conversion or purchase and all other
similar rights with respect thereto. The outstanding Capital Stock of all such
Subsidiaries is validly issued, fully paid and non-assessable and is owned by
each such Consolidated Party or Unrestricted Subsidiary, directly or indirectly,
free and clear of all Liens (other than those arising under or contemplated in
connection with the Credit Documents and Liens on the Capital Stock of
Unrestricted Subsidiaries permitted under clause (xi) of the definition of
Permitted Liens). Other than as set forth in Schedule 6.13, no Consolidated
Party or Unrestricted Subsidiary has outstanding any securities convertible into
or exchangeable for its Capital Stock nor does any such Person have outstanding
any rights to subscribe for or to purchase or any options for the purchase of,
or any agreements providing for the issuance (contingent or otherwise) of, or
any calls, commitments or claims of any character relating to its Capital Stock.
6.14. GOVERNMENTAL REGULATIONS, ETC.
(a) No part of the Letters of Credit or proceeds of the Loans
will be used, directly or indirectly, for the purpose of purchasing or
carrying any "margin stock" within the meaning of Regulation U, or for
the purpose of purchasing or carrying or trading in any securities. If
requested by any Lender or the Administrative Agent, the Borrower will
furnish to the Administrative Agent and each Lender a statement to the
foregoing effect in conformity with the requirements of FR Form U-1
referred to in Regulation U. No indebtedness being reduced or retired
out of the proceeds of the Loans was or will be incurred for the
purpose of purchasing or carrying any margin stock within the meaning
of Regulation U or any "margin security" within the meaning of
Regulation T. "Margin stock" within the meaning of Regulation U does
not constitute more than 25% of the value of the consolidated assets of
the Consolidated Parties. None of the transactions contemplated by this
Credit Agreement (including, without limitation, the direct or indirect
use of the proceeds of the Loans) will violate or result in a violation
of the Securities Act of 1933, as amended, or the Securities Exchange
Act of 1934, as amended, or regulations issued pursuant thereto, or
Regulation T, U or X.
(b) No Consolidated Party is subject to regulation under the
Public Utility Holding Company Act of 1935, the Federal Power Act or
the Investment Company Act of 1940, each as amended. In addition, no
Consolidated Party is (i) an "investment company" registered or
required to be registered under the Investment Company Act of 1940, as
amended, and is not controlled by such a company, or (ii) a "holding
company", or a "subsidiary company" of a "holding company", or an
"affiliate" of a "holding company" or of a "subsidiary" of a "holding
company", within the meaning of the Public Utility Holding Company Act
of 1935, as amended.
(c) Each Consolidated Party has obtained and holds in full
force and effect, all franchises, licenses, permits, certificates,
authorizations, qualifications, accreditations, easements, rights of
way and other rights, consents and approvals which are necessary for
the ownership of its respective Property and to the conduct of its
respective businesses as
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presently conducted, and which failure to obtain or hold could not
reasonably be expected to have a Material Adverse Effect.
(d) No Consolidated Party or Unrestricted Subsidiary is in
violation of any applicable statute, regulation or ordinance of the
United States of America, or of any state, city, town, municipality,
county or any other jurisdiction, or of any agency thereof (including
without limitation, environmental laws and regulations), which
violation could reasonably be expected to have a Material Adverse
Effect.
(e) Each Consolidated Party and Unrestricted Subsidiary is
current with all material reports and documents, if any, required to be
filed with any state or federal securities commission or similar agency
and is in full compliance in all material respects with all applicable
rules and regulations of such commissions, except to the extent such
noncompliance could not reasonably be expected to have a Material
Adverse Effect.
6.15. PURPOSE OF LOANS AND LETTERS OF CREDIT.
The proceeds of the Loans hereunder shall be used solely by the
Borrower (i) for working capital, (ii) to provide funds for the development and
construction of correctional, justice and detention centers, (iii) for
refinancing existing Indebtedness of the Borrower, (iv) to acquire Real
Properties, (v) for general corporate purposes and (vi) to make dividend
payments to its shareholders necessary to maintain its status as a REIT;
provided, however, that proceeds of the Tranche C Term Loan shall be used only
for the purposes set forth in clauses (iii) and (v) above, and for payment of
the one-time special dividend in fiscal year 1999, as described in, and subject
to, Section 8.7. The Letters of Credit shall be used only for or in connection
with appeal bonds, reimbursement obligations arising in connection with surety
and reclamation bonds, reinsurance, domestic or international trade
transactions, bid or proposal bonds and obligations not otherwise aforementioned
relating to transactions entered into by the applicable account party in the
ordinary course of business, including credit enhancement for financing incurred
by the Borrower in connection with the acquisition, construction and development
of real property.
6.16. ENVIRONMENTAL MATTERS.
(a) (i) Each of the facilities and properties owned, leased or
operated by the Consolidated Parties and any Unrestricted Subsidiaries
(the "Properties") and all operations at the Properties are in
compliance with all applicable Environmental Laws, (ii) there is no
violation of any Environmental Law with respect to the Properties or
the businesses operated by the Consolidated Parties (the "Businesses"),
and (iii) there are no conditions relating to the Businesses or
Properties that, in the case of the foregoing clauses (i), (ii) and
(iii) could reasonably be expected to have a Material Adverse Effect.
(b) None of the Properties contains, or has previously
contained, any Materials of Environmental Concern at, on or under the
Properties in amounts or concentrations that could reasonably be
expected to have a Material Adverse Effect.
(c) No Consolidated Party or Unrestricted Subsidiary has
received any written or verbal notice of, or inquiry from any
Governmental Authority regarding, any violation, alleged violation,
non-compliance, liability or potential liability regarding
environmental
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matters or compliance with Environmental Laws with regard to any of the
Properties or the Businesses, nor does any Consolidated Party or
Unrestricted Subsidiary have knowledge or reason to believe that any
such notice will be received or is being threatened, if such violation,
alleged violation, non-compliance, liability or potential liability
could reasonably be expected to have a Material Adverse Effect.
(d) Materials of Environmental Concern have not been
transported or disposed of from the Properties, or generated, treated,
stored or disposed of at, on or under any of the Properties or any
other location, in each case by or on behalf of any Consolidated Party
or Unrestricted Subsidiary in a manner that could reasonably be
expected to have a Material Adverse Effect.
(e) No judicial proceeding or governmental or administrative
action is pending or, to the knowledge of any Credit Party, threatened,
under any Environmental Law to which any Consolidated Party or
Unrestricted Subsidiary is or will be named as a party, nor are there
any consent decrees or other decrees, consent orders, administrative
orders or other orders, or other administrative or judicial
requirements outstanding under any Environmental Law with respect to
the Consolidated Parties, the Properties or the Businesses, except to
the extent that each of the foregoing could not, individually or
collectively, reasonably be expected to have a Material Adverse Effect
(f) There has been no release, or threat of release, of
Materials of Environmental Concern at or from the Properties, or
arising from or related to the operations (including, without
limitation, disposal) of any Consolidated Party or Unrestricted
Subsidiary in connection with the Properties or otherwise in connection
with the Businesses, in a manner that could reasonably be expected to
have a Material Adverse Effect.
6.17. INTELLECTUAL PROPERTY.
Each Consolidated Party owns, or has the legal right to use, all
trademarks, tradenames, copyrights, technology, know-how and processes (the
"Intellectual Property") necessary for each of them to conduct its business as
currently conducted except for those the failure to own or have such legal right
to use could not reasonably be expected to have a Material Adverse Effect. Set
forth on Schedule 6.17 is a list of all material Intellectual Property owned by
each Consolidated Party or that any Consolidated Party has the right to use.
Except as provided on Schedule 6.17, no claim has been asserted and is pending
by any Person challenging or questioning the use of any such Intellectual
Property or the validity or effectiveness of any such Intellectual Property, nor
does any Credit Party know of any such claim, and to the Credit Parties'
knowledge the use of such Intellectual Property by any Consolidated Party does
not infringe on the rights of any Person, except for such claims and
infringements that, in the aggregate, could not reasonably be expected to have a
Material Adverse Effect.
6.18. SOLVENCY.
Each Credit Party is and, after consummation of the transactions
contemplated by this Credit Agreement, will be Solvent.
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6.19. INVESTMENTS.
All Investments of each Consolidated Party and Unrestricted Subsidiary
are Permitted Investments or otherwise permitted under Section 8.6.
6.20. LOCATION OF COLLATERAL.
Set forth on Schedule 6.20(a) is a list of all Real Properties with
street address, county and state where located. Set forth on Schedule 6.20(b) is
a list of all locations where any material personal property of a Consolidated
Party is located, including county and state where located. Set forth on
Schedule 6.20(c) is the chief executive office and principal place of business
of each Consolidated Party. Schedules 6.20(a), 6.20(b) and 6.20(c) may be
updated from time to time by the Borrower by giving written notice to the
Administrative Agent.
6.21. DISCLOSURE.
Neither this Credit Agreement nor any financial statements delivered to
the Lenders nor any other document, certificate or statement furnished to the
Lenders by or on behalf of any Consolidated Party or Unrestricted Subsidiary in
connection with the transactions contemplated hereby (other than projections and
pro forma financial information) contained as of the date such statement,
information, document or certificate was so furnished, any untrue statement of a
material fact or omitted to state a material fact necessary in order to make the
statements contained herein or therein not misleading. The projections and pro
forma financial information contained in the materials referenced above are
based upon good faith estimates and assumptions believed by management of the
Borrower to be reasonable at the time made, it being recognized by the Lenders
that such financial information as it relates to future events is not to be
viewed as fact and that actual results during the period or periods covered by
such financial information may differ from the projected results set forth
therein by a material amount.
6.22. [Intentionally omitted.]
6.23. LABOR MATTERS.
There are no collective bargaining agreements or Multiemployer Plans
covering the employees of a Consolidated Party as of the Restatement Effective
Date and none of the Consolidated Parties has suffered any strikes, walkouts,
work stoppages or other material labor difficulty within the last five years.
6.24. YEAR 2000 COMPLIANCE.
Each Credit Party has (i) initiated a review and assessment of all
areas within its and each of its Subsidiaries' business and operations that
could be adversely affected by the "Year 2000 Problem" (that is, the risk that
computer applications used by such Credit Party or any of its Subsidiaries 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 the timetable. Based on
the foregoing, each Credit Party believes that all computer applications that
are material to its and 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
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extent that a failure to do so could not reasonably be expected to have Material
Adverse Effect.
6.25. FIRST PRIORITY LIEN.
Both before and after giving effect to the amendment of the Original
Credit Agreement pursuant to this Credit Agreement, the Administrative Agent, on
behalf of the Secured Parties, holds a first priority lien, subject to no other
liens other than Permitted Liens, in the Collateral.
6.26. LEASES.
Each of the leases entered into between a Credit Party and any lessee
of real property owned by a Credit Party (a) has a minimum initial lease term of
five years (except for leases entered into with a governmental entity) and (b)
requires that the lessee remain solely responsible for all operations and other
liabilities with respect to the applicable property. Furthermore, (i) eighty
percent (80%) of all lease revenues of the Credit Parties are derived from
leases with Management Opco and with lessees (other than Management Opco) having
a senior unsecured non-credit enhanced long term debt rating of at least BBB+
(or higher) from S&P or Baa1 (or higher) from Moody's or if such ratings from
S&P and Moody's are unavailable, an equivalent rating from Fitch or Duff &
Phelps, (ii) at least ninety percent (90%) of all lease revenues of the Credit
Parties are derived from leases with Management Opco and with lessees (other
than Management Opco) having a senior unsecured non-credit enhanced long term
debt rating of at least BBB- (or higher) from S&P or Baa3 (or higher) from
Moody's or if such ratings from S&P and Moody's are unavailable, an equivalent
rating from Fitch or Duff & Phelps, and (iii) at least ninety percent (90%) of
all lease revenues of the Credit Parties are derived from triple net leases that
are noncancelable by the lessee.
SECTION 7.
AFFIRMATIVE COVENANTS
Each Credit Party hereby covenants and agrees that, so long as this
Credit Agreement is in effect or any amounts payable hereunder or under any
other Credit Document shall remain outstanding, and until all of the Commitments
hereunder shall have terminated:
7.1. INFORMATION COVENANTS.
The Credit Parties will furnish, or cause to be furnished, to the
Administrative Agent and each of the Lenders:
(a) Annual Financial Statements. As soon as available, and in
any event within 90 days after the close of each fiscal year of the
Consolidated Parties, Management Opco, Service Company A, Service
Company B and each Unrestricted Subsidiary of the Borrower, a
consolidated balance sheet and income statement of the Consolidated
Parties, Management Opco, Service Company A, Service Company B and each
such Unrestricted Subsidiary, as of the end of such fiscal year,
together with related consolidated statements of operations and
retained earnings and of cash flows for such fiscal year, setting forth
in comparative form consolidated figures for the preceding fiscal year,
all such financial information described above to be in reasonable form
and detail and audited by
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independent certified public accountants of recognized national
standing reasonably acceptable to the Administrative Agent and whose
opinion shall be to the effect that such financial statements have been
prepared in accordance with GAAP (except for changes with which such
accountants concur) and shall not be limited as to the scope of the
audit or qualified as to the status of the Consolidated Parties,
Management Opco, Service Company A or Service Company B as a going
concern.
(b) Quarterly Financial Statements. As soon as available, and
in any event within 45 days after the close of each fiscal quarter of
the Consolidated Parties, Management Opco, Service Company A, Service
Company B and each Unrestricted Subsidiary (other than the fourth
fiscal quarter, in which case 90 days after the end thereof) a
consolidated balance sheet and income statement of the Consolidated
Parties, Management Opco, Service Company A, Service Company B and each
such Unrestricted Subsidiary, as of the end of such fiscal quarter,
together with related consolidated statements of operations and
retained earnings and of cash flows for such fiscal quarter, in each
case setting forth in comparative form consolidated figures for the
corresponding period of the preceding fiscal year, all such financial
information described above to be in reasonable form and detail and
reasonably acceptable to the Administrative Agent, and accompanied by a
certificate of the chief financial officer of the Borrower to the
effect that such quarterly financial statements fairly present in all
material respects the financial condition of the Consolidated Parties,
Management Opco, Service Company A, Service Company B and the
Unrestricted Subsidiaries, as applicable, and have been prepared in
accordance with GAAP, subject to changes resulting from audit and
normal year-end audit adjustments.
(c) Officer's Certificate. At the time of delivery of the
financial statements provided for in Sections 7.1(a) and 7.1(b) above,
a certificate of the chief financial officer of the Borrower
substantially in the form of Exhibit 7.1(c), (i) demonstrating
compliance with the financial covenants contained in Section 7.11 by
calculation thereof as of the end of each such fiscal period, (ii)
stating that no Default or Event of Default exists, or if any Default
or Event of Default does exist, specifying the nature and extent
thereof and what action the Credit Parties propose to take with respect
thereto and (iii) stating that such person has reviewed Sections 8.1,
8.5 and 8.6 and detailing the Borrower's compliance therewith.
(d) Annual Business Plan and Budgets. At least 30 days prior
to the end of each fiscal year of the Borrower, beginning with the
fiscal year ending December 31, 1999, an annual business plan and
budget of the Consolidated Parties and each of Management Opco, Service
Company A and Service Company B, in each case containing, among other
things, pro forma financial statements for the next fiscal year.
(e) Borrowing Base Certificates. Within 15 days after the end
of each fiscal quarter of the Consolidated Parties (or more frequently
if elected by the Borrower), a Borrowing Base Certificate as of the end
of the immediately preceding fiscal quarter, substantially in the form
of Exhibit 7.1(e) and certified by the chief financial officer of the
Borrower to be true and correct as of the date thereof.
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(f) Auditor's Reports. Promptly upon receipt thereof, a copy
of any other report or "management letter" submitted by independent
accountants to any Consolidated Party or Unrestricted Subsidiary or any
of Management Opco, Service Company A or Service Company B, in each
case in connection with any annual, interim or special audit of the
books of such Consolidated Party or Unrestricted Subsidiary or of
Management Opco, Service Company A or Service Company B, as applicable
(g) Reports. Promptly upon transmission or receipt thereof,
(i) copies of any filings and registrations with, and reports to or
from, the Securities and Exchange Commission, or any successor agency,
and copies of all financial statements, proxy statements, notices and
reports as any Consolidated Party, Unrestricted Subsidiary, Management
Opco, Service Company A or Service Company B shall send to its
shareholders or to a holder of any Indebtedness owed by any
Consolidated Party or Unrestricted Subsidiary or Management Opco,
Service Company A or Service Company B, as applicable, in each case in
its capacity as such a holder and (ii) upon the request of the
Administrative Agent, all reports and written information to and from
the United States Environmental Protection Agency, or any state or
local agency responsible for environmental matters, the United States
Occupational Health and Safety Administration, or any state or local
agency responsible for health and safety matters, or any successor
agencies or authorities concerning environmental, health or safety
matters.
(h) Notices. Upon obtaining knowledge thereof, the Credit
Parties will give written notice to the Administrative Agent
immediately of (i) the occurrence of an event or condition consisting
of a Default or Event of Default, specifying the nature and existence
thereof and what action the Credit Parties propose to take with respect
thereto and (ii) the occurrence of any of the following with respect to
any Consolidated Party or Unrestricted Subsidiary (A) the pendency or
commencement of any litigation, arbitral or governmental proceeding
against such Person which could reasonably be expected to have a
Material Adverse Effect, (B) the institution of any proceedings against
such Person with respect to, or the receipt of notice by such Person of
potential liability or responsibility for violation, or alleged
violation of any federal, state or local law, rule or regulation,
including but not limited to, Environmental Laws, the violation of
which could reasonably be expected to have a Material Adverse Effect,
or (C) any notice or determination concerning the imposition of any
withdrawal liability by a Multiemployer Plan against such Person or any
ERISA Affiliate, the determination that a Multiemployer Plan is, or is
expected to be, in reorganization within the meaning of Title IV of
ERISA or the termination of any Plan.
(i) ERISA. Upon obtaining knowledge thereof, the Credit
Parties will give written notice to the Administrative Agent promptly
(and in any event within five business days) of: (i) of any event or
condition, including, but not limited to, any Reportable Event, that
constitutes, or might reasonably lead to, an ERISA Event; (ii) with
respect to any Multiemployer Plan, the receipt of notice as prescribed
in ERISA or otherwise of any withdrawal liability assessed against the
Credit Parties or any ERISA Affiliates, or of a determination that any
Multiemployer Plan is in reorganization or insolvent (both within the
meaning of Title IV of ERISA); (iii) the failure to make full payment
on or before the due date (including extensions) thereof of all amounts
which any Consolidated Party or any ERISA Affiliate is required to
contribute to each Plan pursuant to its terms and as required to meet
the minimum funding standard set forth in ERISA and the Code with
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respect thereto; or (iv) any change in the funding status of any Plan
that could have a Material Adverse Effect, together with a description
of any such event or condition or a copy of any such notice and a
statement by the chief financial officer of the Borrower briefly
setting forth the details regarding such event, condition, or notice,
and the action, if any, which has been or is being taken or is proposed
to be taken by the Credit Parties with respect thereto. Promptly upon
request, the Credit Parties shall furnish the Administrative Agent and
the Lenders with such additional information concerning any Plan as may
be reasonably requested, including, but not limited to, copies of each
annual report/return (Form 5500 series), as well as all schedules and
attachments thereto required to be filed with the Department of Labor
and/or the Internal Revenue Service pursuant to ERISA and the Code,
respectively, for each "plan year" (within the meaning of Section 3(39)
of ERISA).
(j) Environmental. Upon the reasonable written request of the
Administrative Agent, the Credit Parties will furnish or cause to be
furnished to the Administrative Agent, at the Credit Parties' expense,
a report of an environmental assessment of reasonable scope, form and
depth, (including, where appropriate, invasive soil or groundwater
sampling) by a consultant reasonably acceptable to the Administrative
Agent as to the nature and extent of the presence of any Materials of
Environmental Concern on any Properties (as defined in Section 6.16)
and as to the compliance by any Consolidated Party or Unrestricted
Subsidiary with Environmental Laws at such Properties. If the Credit
Parties fail to deliver such an environmental report within
seventy-five (75) days after receipt of such written request then the
Administrative Agent may arrange for same, and the Consolidated Parties
hereby grant to the Administrative Agent and their representatives
access to the Properties to reasonably undertake such an assessment
(including, where appropriate, invasive soil or groundwater sampling).
The reasonable cost of any assessment arranged for by the
Administrative Agent pursuant to this provision will be payable by the
Credit Parties on demand and added to the obligations secured by the
Collateral Documents.
(k) Additional Patents and Trademarks. At the time of delivery
of the financial statements and reports provided for in Section 7.1(a),
the Credit Parties will deliver to the Administrative Agent, a report
signed by the chief financial officer or treasurer of the Borrower
setting forth (i) a list of registration numbers for all patents,
trademarks, service marks, tradenames and copyrights awarded to any
Consolidated Party since the last day of the immediately preceding
fiscal year and (ii) a list of all patent applications, trademark
applications, service mark applications, trade name applications and
copyright applications submitted by any Consolidated Party since the
last day of the immediately preceding fiscal year and the status of
each such application, all in such form as shall be reasonably
satisfactory to the Administrative Agent.
(l) Leases. At the time of delivery of the financial
statements provided for in Sections 7.1(a) and (b) above, the Credit
Parties will deliver to the Administrative Agent, copies of all new
leases and/or modifications to existing leases for all of those Real
Properties for which any Credit Party receives annual rent payments
equal to or in excess of $1,500,000, and at the time of delivery of the
financial statements provided for in Section 7.1(a) above, copies of
the annual financial statements of each lessee which (i) is
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not a governmental entity or public company and (ii) accounts for at
least five percent (5%) of the annual rent payments made to any Credit
Party.
(m) Construction Budget. Within fifteen (15) days after the
close of each fiscal quarter of the Borrower, the Borrower shall
deliver to the Administrative Agent, a construction budget detailing
the construction planned by the Borrower or its Subsidiaries with
respect to each of the Real Properties for the succeeding fiscal year,
together with information detailing the amount of expenditures of the
Borrower and its Subsidiaries for construction year to date.
(n) Other Information. With reasonable promptness upon any
such request, such other information regarding the business, properties
or financial condition of any Consolidated Party as the Administrative
Agent, the Required Lenders, the Required Tranche C Term Lenders or any
Lender may reasonably request.
7.2. PRESERVATION OF EXISTENCE AND FRANCHISES.
Except as a result of or in connection with a merger of a Subsidiary
permitted under Section 8.4, each Credit Party will, and will cause each of its
Restricted Subsidiaries to, do all things necessary to preserve and keep in full
force and effect its existence, rights, franchises and authority. Subject to the
provisions of Section 8.7, the Borrower will conduct its business so as to
qualify as a REIT in 2000 and subsequent to qualifying as a REIT in 2000, will
maintain its status as a REIT.
7.3. BOOKS AND RECORDS.
Each Credit Party will, and will cause each of its Subsidiaries to,
keep complete and accurate books and records of its transactions in accordance
with good accounting practices on the basis of GAAP (including the establishment
and maintenance of appropriate reserves).
7.4. COMPLIANCE WITH LAW.
Each Credit Party will, and will cause each of its Subsidiaries to,
comply with all laws, rules, regulations and orders, and all applicable
restrictions imposed by all Governmental Authorities, applicable to it and its
Property if noncompliance with any such law, rule, regulation, order or
restriction could reasonably be expected to have a Material Adverse Effect.
7.5. PAYMENT OF TAXES AND OTHER INDEBTEDNESS.
Each Credit Party will, and will cause each of its Subsidiaries to, pay
and discharge (a) all taxes, assessments and governmental charges or levies
imposed upon it, or upon its income or profits, or upon any of its properties,
before they shall become delinquent, (b) all lawful claims (including claims for
labor, materials and supplies) which, if unpaid, could reasonably be expected to
give rise to a Lien upon any of its properties, and (c) except as prohibited
hereunder, all of its other Indebtedness as it shall become due; provided,
however, that no Consolidated Party or Unrestricted Subsidiary shall be required
to pay any such tax, assessment, charge, levy, claim or Indebtedness which is
being contested in good faith by appropriate proceedings and as to which
adequate reserves therefor have been established in accordance with GAAP, unless
the
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failure to make any such payment (i) could reasonably be expected to give rise
to an immediate right to foreclose on a Lien securing such amounts or (ii) could
reasonably be expected to have a Material Adverse Effect.
7.6. INSURANCE.
(a) Each Credit Party will, and will cause each of its
Subsidiaries to, at all times maintain in full force and effect
insurance (including worker's compensation insurance, liability
insurance, casualty insurance and business interruption insurance) in
such amounts, covering such risks and liabilities and with such
deductibles or self-insurance retentions as are in accordance with
normal industry practice (or as otherwise required by the Collateral
Documents). The Administrative Agent shall be named as loss payee or
mortgagee, as its interest may appear, and/or additional insured (along
with the other Secured Parties) with respect to any such insurance
providing general liability coverage or coverage in respect of any
Collateral, and each provider of any such insurance shall agree, by
endorsement upon the policy or policies issued by it or by independent
instruments furnished to the Administrative Agent, that it will give
the Administrative Agent thirty (30) days prior written notice before
any such policy or policies shall be altered or canceled, and that no
act or default of any Consolidated Party or any other Person shall
affect the rights of the Administrative Agent or the other Secured
Parties under such policy or policies. The present insurance coverage
of the Consolidated Parties is outlined as to carrier, policy number,
expiration date, type and amount on Schedule 7.6.
(b) In case of any material loss, damage to or destruction of
any material item of the Collateral of any Credit Party, such Credit
Party shall promptly give written notice thereof to the Administrative
Agent generally describing the nature and extent of such damage or
destruction. In case of any loss, damage to or destruction any material
portion of the Collateral of any Credit Party, such Credit Party,
whether or not the insurance proceeds, if any, received on account of
such damage or destruction shall be sufficient for that purpose, at
such Credit Party's cost and expense, will promptly repair or replace
the Collateral of such Credit Party so lost, damaged or destroyed. In
the event a Credit Party shall receive any insurance proceeds as a
result of any loss, damage or destruction with respect to the
Collateral, such Credit Party will immediately pay over such proceeds
to the Administrative Agent, as cash collateral for the Credit Party
Obligations. The Administrative Agent agrees to release such insurance
proceeds to such Credit Party for replacement or restoration of the
portion of the Collateral of such Credit Party lost, damaged or
destroyed if, but only if, (A) the value of the Borrowing Base
Properties (not including the value of any Borrowing Base Property that
was a part of the Collateral that was lost, damaged or destroyed)
exceeds the lesser of (i) the Revolving Committed Amount and (ii) the
Borrowing Base, (B) within 30 days from the date the Administrative
Agent receives such insurance proceeds, the Administrative Agent has
received written application for such release from such Credit Party,
together with evidence reasonably satisfactory to it that the
Collateral lost, damaged or destroyed has been or will be replaced or
restored to its condition immediately prior to the loss, destruction or
other event giving rise to the payment of such insurance proceeds and
(C) on the date of such release no Default or Event of Default exists.
If the conditions in the preceding sentence are not met, the
Administrative Agent shall, on the first Business Day subsequent to the
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date 30 days after it received such insurance proceeds, apply such
insurance proceeds as a mandatory prepayment of the Credit Party
Obligations for application in accordance with the terms of Section
3.3(b). All insurance proceeds shall be subject to the security
interest of the Administrative Agent, for the benefit of the Secured
Parties, under the Collateral Documents.
7.7. MAINTENANCE OF PROPERTY.
Each Credit Party will, and will cause each of its Restricted
Subsidiaries to, maintain and preserve its properties and equipment material to
the conduct of its business in good repair, working order and condition, normal
wear and tear and casualty and condemnation excepted, and will make, or cause to
be made, to such properties and equipment from time to time all repairs,
renewals, replacements, extensions, additions, betterments and improvements
thereto as may be needed or proper, to the extent and in the manner customary
for companies in similar businesses.
7.8. PERFORMANCE OF OBLIGATIONS.
Each Credit Party will, and will cause each of its Subsidiaries to,
perform in all material respects all of its obligations under the terms of all
material agreements, indentures, mortgages, security agreements or other debt
instruments to which it is a party or by which it is bound (including, without
limitation, the Agecroft Transaction Documents); provided, however, that no
Credit Party nor any of their respective Subsidiaries shall be required to
perform any such obligation which is being contested in good faith by
appropriate proceedings and as to which adequate reserves therefor have been
established in accordance with GAAP, unless the failure to perform such
obligation (i) could reasonably be expected to give rise to an immediate right
to foreclose on a Lien securing such obligation or (ii) could reasonably be
expected to have a Material Adverse Effect. The Borrower will at all times
ensure that Agecroft complies with the Agecroft Charter.
7.9. USE OF PROCEEDS.
The Borrower will use the proceeds of the Loans and will use the
Letters of Credit solely for the purposes set forth in Section 6.15.
7.10. AUDITS/INSPECTIONS.
Upon reasonable notice and during normal business hours, each Credit
Party will, and will cause each of its Subsidiaries to, permit representatives
appointed by the Administrative Agent, including, without limitation,
independent accountants, agents, attorneys, and appraisers to visit and inspect
its property, including its books and records, its accounts receivable and
inventory, its facilities and its other business assets, and to make photocopies
or photographs thereof and to write down and record any information such
representative obtains and shall permit the Administrative Agent or its
representatives to investigate and verify the accuracy of information provided
to the Lenders and to discuss all such matters with the officers, employees and
representatives of such Person. The Credit Parties agree that the Administrative
Agent, and its representatives, may conduct an annual audit of the Collateral,
at the expense of the Credit Parties.
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7.11. FINANCIAL COVENANTS.
(i) Debt Service Coverage Ratio. The Debt Service
Coverage Ratio, as of the last day of each fiscal quarter of
the Consolidated Parties, shall be greater than or equal to
2.0 to 1.0.
(ii) Interest Coverage Ratio. The Interest Coverage
Ratio, as of the last day of each fiscal quarter of the
Consolidated Parties, shall be greater than or equal to 3.0 to
1.0.
(iii) Leverage Ratio. The Leverage Ratio, as of the
last day of each fiscal quarter of the Consolidated Parties,
shall be less than or equal to 3.5 to 1.0.
(iv) Total Indebtedness to Total Value. The ratio of
Total Indebtedness to Total Value, as of the last day of each
fiscal quarter of the Consolidated Parties, shall be less than
or equal to 0.50 to 1.0.
(v) Net Worth. At all times Net Worth shall be
greater than or equal to the sum of an amount equal to 95% of
the Net Worth of the Borrower (based on the audited December
31, 1998 financial statements of the Borrower), increased on a
cumulative basis as of the end of each fiscal quarter of the
Borrower, commencing with the fiscal quarter ending March 31,
1999 by an amount equal to 85% of the Net Cash Proceeds from
any Equity Issuance subsequent to the Original Closing Date
less an amount equal to the dividends paid by the Borrower
during the first twelve months subsequent to the Merger which
are (i) based solely on the retained earnings of CCA prior to
the Merger and (ii) required by the Borrower to be paid to
maintain its status as a real estate investment trust;
provided, however, notwithstanding the foregoing, at no time
shall the Net Worth of the Borrower be less than
$1,200,000,000.
(vi) Non-Conforming Investments. The Consolidated
Parties shall at no time have Non-Conforming Investments which
in the aggregate constitute more than 5% of Total Assets.
(vii) Total Indebtedness to Total Capitalization. At
all times the ratio of Total Indebtedness to Total
Capitalization shall be equal to or less than .50 to 1.0.
7.12. ADDITIONAL CREDIT PARTIES.
As soon as practicable and in any event within 30 days after any Person
becomes a Subsidiary (or ceases to be an Unrestricted Subsidiary (but remains a
Subsidiary)) of any Credit Party, the Borrower shall provide the Administrative
Agent with written notice thereof setting forth information in reasonable detail
describing all of the assets of such Person and shall (a) if such Person is a
Domestic Subsidiary (other than an Unrestricted Subsidiary) of a Credit Party,
cause such Person to execute a Joinder Agreement in substantially the same form
as Exhibit 7.12, (b) except to the extent set forth in Section 8.6(iii)(b) with
respect to Unrestricted Subsidiaries, cause the following to be delivered to the
Administrative Agent pursuant to an appropriate pledge agreement in form
acceptable to the Administrative Agent: (i) 100% (or, if less, the full amount
owned by such Credit Party) of the issued and outstanding shares of Capital
Stock owned by such Credit Party of each Domestic Subsidiary of such Credit
Party and (ii) 65% (or, if less, the full
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amount owned by such Credit Party) of the issued and outstanding shares of each
class of Capital Stock or other ownership interests entitled to vote (within the
meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% (or, if less, the full
amount owned by such Credit Party) of the issued and outstanding shares of each
class of Capital Stock or other ownership interests not entitled to vote (within
the meaning of Treas. Reg. Section 1.956-2(c)(2)) owned by such Credit Party of
each Foreign Subsidiary together with, in each case included in (i) or (ii)
above, the certificates (or other agreements or instruments), if any,
representing such shares, and all options and other rights, contractual or
otherwise, with respect thereto, and undated stock powers signed in blank
(unless, with respect to a Foreign Subsidiary, such stock powers are deemed
unnecessary by the Administrative Agent in its reasonable discretion under the
law of the jurisdiction of incorporation of such Person) and (c) cause such
Person to deliver such other documentation as the Administrative Agent may
reasonably request in connection with the foregoing, including, without
limitation, appropriate UCC-1 financing statements, real estate title insurance
policies, environmental reports, landlord's waivers, certified resolutions and
other organizational and authorizing documents of such Person, and favorable
opinions of counsel to such Person all in form, content and scope reasonably
satisfactory to the Administrative Agent. Notwithstanding the foregoing, (i) for
so long as such actions are prohibited under the Agecroft Transaction Documents,
the provisions of this Section 7.12 shall not apply to Agecroft and Agecroft
shall not be considered a "Credit Party" hereunder or under the other Credit
Documents, (ii) until designated as an "Unrestricted Subsidiary" hereunder,
Agecroft shall otherwise be deemed to be a "Restricted Subsidiary" and (iii) at
all times, all of the requirements set forth in the definitions of "Unrestricted
Subsidiary" and "Non-Recourse Debt" shall apply to Agecroft, regardless of
whether it has been designated as an Unrestricted Subsidiary hereunder; provided
that the Agecroft Transaction shall be permitted.
7.13. ENVIRONMENTAL LAWS.
(a) The Consolidated Parties shall, and shall cause the
Unrestricted Subsidiaries to, comply in all material respects with, and
take reasonable actions to ensure compliance in all material respects
by all tenants and subtenants, if any, with, all applicable
Environmental Laws and obtain and comply in all material respects with
and maintain, and take reasonable actions to ensure that all tenants
and subtenants obtain and comply in all material respects with and
maintain, any and all licenses, approvals, notifications, registrations
or permits required by applicable Environmental Laws except to the
extent that failure to do so would not reasonably be expected to have a
Material Adverse Effect;
(b) The Consolidated Parties shall, and shall cause the
Unrestricted Subsidiaries to, conduct and complete all investigations,
studies, sampling and testing, and all remedial, removal and other
actions required under Environmental Laws and promptly comply in all
material respects with all lawful orders and directives of all
Governmental Authorities regarding Environmental Laws except to the
extent that the same are being contested in good faith by appropriate
proceedings and the failure to do or the pendency of such proceedings
would not reasonably be expected to have a Material Adverse Effect; and
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(c) The Consolidated Parties shall defend, indemnify and hold
harmless the Administrative Agent, the Documentation Agent, the
Syndication Agent, the Co-Agent, the Lead Arranger and the Lenders
(including, without limitation, any Issuing Lender), and their
respective employees, agents, officers and directors, from and against
any and all claims, demands, penalties, fines, liabilities,
settlements, damages, costs and expenses of whatever kind or nature
known or unknown, contingent or otherwise, arising out of, or in any
way relating to the violation of, noncompliance with or liability
under, any Environmental Law applicable to the operations of the
Borrower or any of its Subsidiaries or the Properties, or any orders,
requirements or demands of Governmental Authorities related thereto,
including, without limitation, reasonable attorney's and consultant's
fees, investigation and laboratory fees, response costs, court costs
and litigation expenses, except to the extent that any of the foregoing
arise out of the gross negligence or willful misconduct of the party
seeking indemnification therefor; provided that -------- the provisions
of this subsection (c) shall apply to Agecroft only to the extent not
prohibited by the Agecroft Charter. The agreements in this paragraph
shall survive repayment of the Loans and all other amounts payable
hereunder, and termination of the Commitments.
7.14. COLLATERAL.
If, subsequent to the Restatement Effective Date, any Credit Party
shall acquire (a) any real property having a book value in excess of $500,000 or
(b) any intellectual property, securities instruments, chattel paper or other
personal property required to be delivered to the Administrative Agent as
Collateral hereunder or under any of the Collateral Documents, the Borrower
shall notify the Administrative Agent of same in each case as soon as
practicable after the acquisition thereof. Each Credit Party shall take such
action as requested by the Administrative Agent and at its own expense, to
ensure that the Administrative Agent shall have a first priority perfected Lien
in (i) all owned and developed real property of the Credit Parties (whether now
owned or hereafter acquired) having a book value in excess of $1,000,000, (ii)
to the extent deemed to be material by the Administrative Agent and either the
Required Lenders or the Aggregate Required Lenders in their sole discretion, all
owned and undeveloped real property of the Credit Parties (whether now owned or
hereafter acquired) and (iii) all personal property of the Credit Parties
(whether now owned or hereafter acquired), subject in each case only to
Permitted Liens. In addition, upon the request of the Administrative Agent, the
Borrower will assist the Administrative Agent with such post-closing lien
searches (conducted at the Borrower's expense) as the Administrative Agent shall
deem necessary or desirable to confirm the perfection and priority of the
Administrative Agent's Lien on the Collateral.
7.15. LEASES.
The Credit Parties hereby agree that all leases entered into between
the Credit Party and any lessee of real property owned by the Credit Party will
(a) have a minimum initial lease term of five years (provided any leases entered
into with a governmental entity may have a lease term of less than five years
and be subject to other appropriate limitations satisfactory to the Required
Lenders and the Required Tranche C Term Lenders) and (b) require that the lessee
remain solely responsible for all operations and other liabilities with respect
to the applicable property; provided, however, with respect to all leases having
annual rent payments (whether at the inception of such lease or otherwise) in
excess of $1,500,000, such leases shall be provided to the
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Administrative Agent in accordance with Section 7.1(k) and be satisfactory in
form and substance to the Administrative Agent. The Credit Parties also agree
that, at all times, (i) at least eighty percent (80%) of all lease revenues of
the Credit Parties shall be derived from leases with Management Opco and with
lessees other than Management Opco having a senior unsecured non-credit enhanced
long term debt rating of at least BBB+ (or higher) from S&P or Baa1 (or higher)
from Moody's (or if such ratings are unavailable from S&P and Moody's, an
equivalent rating from either Fitch or Duff & Phelps), (ii) at least ninety
percent (90%) of all lease revenues of the Credit Parties shall be derived from
leases with Management Opco and with lessees other than Management Opco having a
senior unsecured non-credit enhanced long term debt rating of at least BBB- (or
higher) from S&P and Baa3 (or higher) from Moody's (or if such ratings are
unavailable from S&P and Moody's, an equivalent rating from either Fitch or Duff
& Phelps), and (iii) at least ninety percent (90%) of all lease revenues of the
Credit Parties are derived from triple-net leases that are noncancelable by the
lessee.
7.16. YEAR 2000 COMPLIANCE.
Each Credit Party will promptly notify the Administrative Agent in the
event such Credit Party discovers or determines that any computer application
that is material to its or any of its Subsidiaries' business and operations will
not be Year 2000 compliant, except to the extent that such failure could not
reasonably be expected to have a Material Adverse Effect.
7.17. APPRAISALS.
If the Administrative Agent, the Required Lenders or the Aggregate
Required Lenders determine that applicable law or regulation requires that
appraisals of each Real Property be prepared for the benefit of the
Administrative Agent, the Credit Parties agree that the Administrative Agent may
(after notice to and consultation with the Borrower) order appraisals of each
Real Property (at the expense of the Credit Parties). Such appraisals shall (i)
be performed by a qualified appraiser engaged by the Administrative Agent, (ii)
indicate a fair market value for each such Real Property and otherwise be in
form and substance satisfactory to the Administrative Agent and (iii) be
delivered to the Administrative Agent within 120 days of such determination that
such appraisals are necessary under applicable law or regulation. The Credit
Parties further agree that if the Administrative Agent, the Required Lenders or
the Aggregate Required Lenders make the determination that appraisals of each
Real Property are required by applicable law or regulation, the Credit Parties
shall, upon the purchase of a Real Property subsequent to the Restatement
Effective Date, provide the Administrative Agent with a current appraisal of
such Real Property (at the expense of the Credit Parties), which appraisals
shall be prepared by a qualified appraiser engaged by the Administrative Agent,
indicate a fair market value for each such Real Property and otherwise be in
form and substance satisfactory to the Administrative Agent.
7.18. HEDGING AGREEMENTS.
The Borrower shall, not later than August 16, 1999, enter into and
maintain Hedging Agreements in a notional amount of at least $325,000,000 and
otherwise in form and substance acceptable to the Administrative Agent, all
pursuant to a hedging strategy reasonably acceptable to any two of the
Administrative Agent, the Syndication Agent and the Documentation Agent.
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SECTION 8.
NEGATIVE COVENANTS
Each Credit Party hereby covenants and agrees that, so long as this
Credit Agreement is in effect or any amounts payable hereunder or under any
other Credit Document shall remain outstanding, and until all of the Commitments
hereunder shall have terminated:
8.1. INDEBTEDNESS.
The Credit Parties will not permit any Consolidated Party or
Unrestricted Subsidiary to contract, create, incur, assume or permit to exist
any Indebtedness, except:
(a) Indebtedness arising under this Credit Agreement and the
other Credit Documents;
(b) Indebtedness of the Borrower set forth in Schedule 8.1
(and renewals, refinancings and extensions thereof on terms and
conditions no less favorable to the obligor than such existing
Indebtedness);
(c) obligations of the Borrower in respect of Hedging
Agreements entered into in order to manage existing or anticipated
interest rate or exchange rate risks and not for speculative purposes;
(d) Indebtedness owing by a Credit Party to another Credit
Party;
(e) unsecured Indebtedness of the Borrower provided that (i)
no part of the principal part of such Indebtedness shall have a
maturity date earlier than the final maturity of the Loans hereunder,
(ii) after giving effect to the incurrence of any such Indebtedness on
a pro forma basis, as if such incurrence of Indebtedness had occurred
on the first day of the twelve month period ending on the last day of
the Borrower's most recently completed fiscal quarter, the Borrower and
its Subsidiaries would have been in compliance with all the financial
covenants set forth in Section 7.11 and the Borrower shall have
delivered to the Administrative Agent a certificate of its chief
financial officer to such effect setting forth in reasonable detail the
computations necessary to determine such compliance and (iii) at the
time of the issuance of such Indebtedness and after giving effect
thereto, no Default or Event of Default shall exist or be continuing;
(f) purchase money Indebtedness of the Borrower not exceeding
$1,000,000 in aggregate principal amount at any time outstanding;
(g) Indebtedness of any Unrestricted Subsidiary consisting
entirely of Non-Recourse Debt; provided, however, that (i) the
aggregate amount of all such Indebtedness that may be incurred or be
owing by all Unrestricted Subsidiaries may not at any time exceed
twenty percent (20%) of Total Value and (ii) if any such Indebtedness
ceases to be Non-Recourse Debt of such Unrestricted Subsidiary, such
event shall be deemed to constitute an incurrence of Indebtedness by a
Restricted Subsidiary of the Borrower that was not permitted by this
Section 8.1(g);
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(h) Indebtedness of the Borrower in respect of the Senior
Notes and the unsecured guarantee by any Subsidiary of the Borrower
that is a Subsidiary Guarantor hereunder of the Borrower's obligations
under (i) the Senior Notes (pursuant to the Senior Notes Indenture as
in effect on the Restatement Effective Date) and (ii) the Permitted
Unsecured Debt; provided that such guarantee is not senior to the
Guarantee Obligations of such Subsidiary Guarantor hereunder;
(i) Indebtedness of a Restricted Subsidiary of the Borrower
that is a Credit Party incurred and outstanding on the date on which
such Restricted Subsidiary was acquired by the Company (provided that
such Indebtedness shall not be incurred (i) to provide all or any
portion of the funds utilized to consummate the transaction or series
of related transactions pursuant to which such Restricted Subsidiary
became a Restricted Subsidiary or was otherwise acquired by the
Borrower or (ii) otherwise in connection with, or in contemplation of,
such acquisition) and as to which the Borrower and its other Restricted
Subsidiaries are not obligated to become liable for such Indebtedness;
(j) Indebtedness incurred by the Borrower or any of its
Restricted Subsidiaries in respect of workers' compensation claims,
self-insurance obligations, performance, proposal, completion, surety
and similar bonds and completion guarantees provided by the Borrower or
a Restricted Subsidiary of the Borrower in the ordinary course of
business; provided that the underlying obligation to perform is that of
the Borrower and its Restricted Subsidiaries and not that of the
Company's Unrestricted Subsidiaries or any other Person; and
(k) prior to Agecroft's designation as an Unrestricted
Subsidiary hereunder, Indebtedness owing by Agecroft to the Borrower
pursuant to the Agecroft Note.
8.2. LIENS.
The Credit Parties will not permit any Consolidated Party or
Unrestricted Subsidiary to contract, create, incur, assume or permit to exist
any Lien with respect to any of its Property, whether now owned or after
acquired, except for Permitted Liens.
8.3. NATURE OF BUSINESS.
The Credit Parties will not permit any Consolidated Party or any other
Subsidiary to substantively alter the character or conduct of the business
conducted by such Person as of the Original Closing Date. Specifically, neither
the Borrower nor any Subsidiary of the Borrower shall engage in any business
other than the ownership of correctional, justice and/or detention facilities
(which may include secured charter schools) that are managed by the lessees of
the Borrower or such Subsidiary, as the case may be (or agent of any such lessee
in the event any lessee is a governmental entity).
8.4. CONSOLIDATION, MERGER, DISSOLUTION, ETC.
The Credit Parties will not permit any Consolidated Party to enter into
any transaction of merger or consolidation or liquidate, wind up or dissolve
itself (or suffer any liquidation or dissolution); provided that,
notwithstanding the foregoing provisions of this Section 8.4, (a) the
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Borrower may merge or consolidate with any of its Restricted Subsidiaries
provided that (i) the Borrower shall be the continuing or surviving corporation,
(ii) the Credit Parties shall cause to be executed and delivered such documents,
instruments and certificates as the Administrative Agent may request in order to
maintain the perfection and priority of the Administrative Agent's liens on the
assets of the Credit Parties as required by Section 7.14 after giving effect to
such transaction and (iii) after giving effect to such transaction, no Default
or Event of Default exists, (b) any Credit Party other than the Borrower may
merge or consolidate with any other Credit Party other than the Borrower
provided that (i) the Credit Parties shall cause to be executed and delivered
such documents, instruments and certificates as the Administrative Agent may
request in order to maintain the perfection and priority of the Administrative
Agent's liens on the assets of the Credit Parties as required by Section 7.14
after giving effect to such transaction and (ii) after giving effect to such
transaction, no Default or Event of Default exists, (c) any Consolidated Party
which is not a Credit Party may be merged or consolidated with or into any
Credit Party provided that (i) such Credit Party shall be the continuing or
surviving corporation, (ii) the Credit Parties shall cause to be executed and
delivered such documents, instruments and certificates as the Administrative
Agent may request in order to maintain the perfection and priority of the
Administrative Agent's liens on the assets of the Credit Parties as required by
Section 7.14 after giving effect to such transaction and (iii) after giving
effect to such transaction, no Default or Event of Default exists, and (d) any
Consolidated Party which is not a Credit Party may be merged or consolidated
with or into any other Consolidated Party which is not a Credit Party provided
that, after giving effect to such transaction, no Default or Event of Default
exists.
8.5. ASSET DISPOSITIONS.
The Credit Parties will not permit any Consolidated Party to make any
Asset Disposition (including, without limitation, any Sale and Leaseback
Transaction) unless no later than the date of consummation of such Asset
Disposition, the Administrative Agent shall have received a certificate of an
officer of the Borrower briefly describing the assets sold or otherwise disposed
of, and setting forth the net book value of such assets, and the aggregate
consideration and Net Cash Proceeds received for such assets in connection with
such Asset Disposition, and the Credit Parties shall on the date of the
consummation of such Asset Disposition, apply (or cause to be applied) an amount
equal to the Net Cash Proceeds of such Asset Disposition to prepay the Loans
(and to cash collateralize the LOC Obligations) in accordance with the terms of
Section 3.3(b)(ii) and (iii) (except as expressly provided therein).
Notwithstanding the foregoing, the Borrower agrees that it shall not
sell a Borrowing Base Property unless each of the following conditions is
satisfied: (i) no Default or Event of Default exists, (ii) such Borrowing Base
Property is sold pursuant to the terms and conditions of an arms length contract
and on terms reasonably satisfactory to the Administrative Agent, (iii) either
(a) the Borrower replaces such Borrowing Base Property with a substitute
Borrowing Base Property acceptable to the Lenders or (b) the Obligations
outstanding shall not exceed the lesser of the Aggregate Committed Amount and
the Borrowing Base after giving effect to such disposition and (iv) after giving
effect to such disposition, on a pro forma basis as if such disposition had
occurred on the first day of the twelve month period ending on the last day of
the Borrower's most recently completed fiscal quarter, the Consolidated Parties
would have been in compliance with all the financial covenants set forth in
Section 7.11.
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8.6. INVESTMENTS.
The Credit Parties will not permit any Consolidated Party to make
Investments in or to any Person, except for (i) Permitted Investments, (ii) so
long as no Event of Default has occurred and is continuing, Investments not
otherwise prohibited under this Credit Agreement (other than in Unrestricted
Subsidiaries) in an amount not to exceed $3,000,000 in any fiscal year of the
Borrower and $15,000,000 in the aggregate, and (iii) so long as no Event of
Default has occurred and is continuing, Investments in Unrestricted
Subsidiaries; provided that, with respect to this clause (iii), (a) the
aggregate amount of all Investments by the Credit Parties in Unrestricted
Subsidiaries may not exceed at any time the lesser of (A) ten percent (10%) of
Consolidated Net Worth and (B) the sum of (1) $25,000,000, plus (2) cumulative
retained earnings (but not less than zero) of the Borrower for periods after the
Restatement Effective Date, plus (3) the Net Cash Proceeds of any Equity
Issuance (other than any Equity Issuance the proceeds of which are used to
satisfy the requirements of clause (ii)(B) in the proviso to Section 8.7(c))
consummated after the Restatement Effective Date and (b) the provisions of
Section 7.12(b) are complied with (unless at the time of such Investment in such
Unrestricted Subsidiary compliance with Section 7.12(b) is prohibited by any
financing arrangements of such Unrestricted Subsidiary and such prohibition was
not created in contemplation of the requirements of such Section 7.12(b)).
8.7. RESTRICTED PAYMENTS.
The Credit Parties will not permit any Consolidated Party to, directly
or indirectly, declare, order, make or set apart any sum for or pay any
Restricted Payment, except (a) to make dividends payable solely in the same
class of Capital Stock of such Person, (b) to make dividends or other
distributions payable to the Borrower (directly or indirectly through
Subsidiaries), (c) the Borrower may make a one-time dividend payment (currently
estimated by the Borrower to be approximately $180,000,000, but in no event to
exceed $225,000,000 less the aggregate amount of all distributions made in
fiscal year 1999 in excess of ninety-five percent (95%) of real estate
investment trust taxable income (determined without regard to the deduction for
dividends paid and excluding any net capital gain), as described in Section
857(a)(1)(A)(i) of the Code (which distributions the Borrower currently expects
to equal approximately $45,000,000)) in fiscal year 1999 based solely on the
retained earnings of CCA prior to the Merger necessary to maintain the
Borrower's status as a REIT if, but only if, the Borrower is able to provide the
Administrative Agent prior to the time such dividend is declared with evidence
(in form and substance satisfactory to the Administrative Agent) indicating (i)
that the Borrower has sufficient cash or availability under this Credit
Agreement to make such dividend payment at the time such payment is required)
and (ii) that the Borrower shall have liquidity of at least $75 million (which
liquidity may include any amounts available to be drawn under the Credit
Agreement) after giving effect to such one-time dividend payment; provided,
however, that (i) no such one-time dividend shall be paid in cash unless and
until Management Opco has received at least $25,000,000 in cash proceeds (which
proceeds must not be used to make a prepayment and corresponding permanent
commitment reduction under the Management Opco Credit Agreement) from the
issuance by Management Opco of any combination of Capital Stock and subordinated
debt (which debt must be permitted to be issued under the Management Opco Credit
Agreement) to one or more independent third-party investors (other than the
investors referred to in clause (ii) below), all on terms approved by Management
Opco's Board of Directors (ii) no such one-time
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dividend in excess of $31,000,000 shall be paid in cash unless and until (A) the
condition set forth in clause (i) above is met and (B) the Borrower has received
at least $100,000,000 in cash proceeds from the issuance by the Borrower of any
combination of Capital Stock to one or more independent third-party investors
whose investment entitles them to, and results in their, representation on the
Board of Directors of the Borrower, all on terms approved by the Borrower's
independent directors, (d) so long as no Default or Event of Default exists or
would result therefrom, the Borrower may make distributions on common or
preferred stock in an aggregate amount not to exceed during any calendar year
ninety five percent (95%) of Funds from Operations attributable to such calendar
year period; provided, however, the Borrower may pay dividends or distributions
that exceed the amount permitted by the preceding clause (d) if (i) such larger
distribution is required in order for the Borrower to maintain its status as a
REIT and (ii) no Default or Event of Default exists or would result therefrom
and (e) the Borrower may repurchase Equity Interests of the Borrower to the
extent such repurchases are deemed to occur upon the exercise of stock options
if such Equity Interests represent a portion of the exercise price thereof.
8.8. PREPAYMENTS OF INDEBTEDNESS, ETC.
The Credit Parties will not permit any Consolidated Party to (a) after
the issuance thereof, amend, modify or refinance (or permit the amendment,
modification or refinancing of) any other Indebtedness if such amendment,
modification or refinancing would add or change any terms in a manner adverse to
the issuer of such Indebtedness, or shorten the final maturity or average life
to maturity or require any payment to be made sooner than originally scheduled
or increase the interest rate applicable thereto or change any subordination
provision thereof; provided that the restrictions of this clause (a) shall not
apply to any Indebtedness to the extent (i) such Indebtedness, as so amended or
modified, or (ii) the Indebtedness refinancing such Indebtedness, as applicable,
in each case could be incurred under Section 8.1(e) hereof at the time of such
amendment, modification or refinancing, (b) except in connection with a
refinancing of Indebtedness permitted under clause (a) hereof, make (or give any
notice with respect thereto) any voluntary or optional payment or prepayment or
redemption or acquisition for value of (including without limitation, by way of
depositing money or securities with the trustee with respect thereto before due
for the purpose of paying when due) any other Indebtedness (other than
Indebtedness owed to the Borrower), or (c) except in connection with a
refinancing of Indebtedness permitted under clause (a) hereof, refund or
exchange (except as provided in clause (a) above) any other Indebtedness (or
offer to do so).
8.9. TRANSACTIONS WITH AFFILIATES.
Except for transactions permitted under Section 8.15, the Credit
Parties will not permit any Consolidated Party to enter into or permit to exist
any transaction or series of transactions with or for the benefit of any
officer, director, shareholder, Unrestricted Subsidiary or Affiliate of such
Person other than (i) normal compensation and reimbursement of expenses of
officers and directors and (ii) except as otherwise specifically limited in this
Credit Agreement, other transactions which are entered into in the ordinary
course of such Person's business on terms and conditions substantially as
favorable to such Person as would be obtainable by it in a comparable
arms-length transaction with a Person other than an officer, director,
shareholder, Unrestricted Subsidiary or Affiliate.
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8.10. FISCAL YEAR; ORGANIZATIONAL DOCUMENTS.
The Credit Parties will not permit any Consolidated Party to (a) change
its fiscal year without the prior written consent of the Required Lenders and
the Required Tranche C Term Lenders or (b) amend, modify or change its articles
of incorporation (or corporate charter or other similar organizational document)
or bylaws (or other similar document) in any manner that would reasonably be
likely to adversely affect the Lenders.
8.11. LIMITATION ON RESTRICTED ACTIONS.
The Credit Parties will not permit any Consolidated Party to, directly
or indirectly, create or otherwise cause or suffer to exist or become effective
any encumbrance or restriction on the ability of any such Person to (a) pay
dividends or make any other distributions to any Credit Party on its Capital
Stock or with respect to any other interest or participation in, or measured by,
its profits, (b) pay any Indebtedness or other obligation owed to any Credit
Party, (c) make loans or advances to any Credit Party, (d) sell, lease or
transfer any of its properties or assets to any Credit Party, or (e) act as a
Guarantor and pledge its assets pursuant to the Credit Documents or any
renewals, refinancings, exchanges, refundings or extension thereof, except (in
respect of any of the matters referred to in clauses (a)-(d) above) for such
encumbrances or restrictions existing under or by reason of (i) this Credit
Agreement and the other Credit Documents, (ii) applicable law, (iii) the Senior
Notes Documents, (iv) the Permitted Unsecured Debt Documents and (v) the
Agecroft Transaction Documents.
8.12. OWNERSHIP OF SUBSIDIARIES.
Notwithstanding any other provisions of this Credit Agreement to the
contrary, the Credit Parties will not permit (A) any Consolidated Party to (i)
permit any Person (other than the Borrower or any Wholly-Owned Subsidiary of the
Borrower) to own any Capital Stock of any Restricted Subsidiary of the Borrower
(provided that no Capital Stock of any Restricted Subsidiary of the Borrower may
be owned by an Unrestricted Subsidiary) or (ii) permit any Restricted Subsidiary
of the Borrower to issue Capital Stock (except to the Borrower or to a
Wholly-Owned Subsidiary of the Borrower; provided that no Capital Stock of any
Restricted Subsidiary of the Borrower may be owned by an Unrestricted
Subsidiary), in each case except to qualify directors where required by
applicable law or to satisfy other requirements of applicable law with respect
to the ownership of Capital Stock of Foreign Subsidiaries and (iii)
notwithstanding anything to the contrary contained in clause (ii) above, permit
any Subsidiary of the Borrower to issue any shares of preferred Capital Stock or
(B) any Person other than the Borrower or its Restricted Subsidiaries to own any
Capital Stock of any Unrestricted Subsidiary; provided that the provisions of
this clause (B) shall not apply to any Capital Stock of an Unrestricted
Subsidiary owned by a governmental or quasi-governmental entity in a
partnership, joint-venture or other cooperative arrangement with the Borrower or
any of its Restricted Subsidiaries.
8.13. SALE LEASEBACKS.
The Credit Parties will not permit any Consolidated Party to, directly
or indirectly, become or remain liable as lessee or as guarantor or other surety
with respect to any lease,
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whether an Operating Lease or a Capital Lease, of any Property (whether real,
personal or mixed), whether now owned or hereafter acquired, (a) which such
Consolidated Party has sold or transferred or is to sell or transfer to a Person
which is not a Consolidated Party or (b) which such Consolidated Party intends
to use for substantially the same purpose as any other Property which has been
sold or is to be sold or transferred by such Consolidated Party to another
Person which is not a Consolidated Party in connection with such lease.
8.14. NO FURTHER NEGATIVE PLEDGES.
The Credit Parties will not permit any Consolidated Party to enter
into, assume or become subject to any agreement prohibiting or otherwise
restricting the creation or assumption of any Lien upon its properties or
assets, whether now owned or hereafter acquired, or requiring the grant of any
security for such obligation if security is given for some other obligation,
except pursuant to (1) provided the provisions thereof do not prohibit the Liens
created under the Loan Documents, (a) the Senior Notes Documents and the
Permitted Unsecured Debt Documents and any refinancing of any thereof otherwise
permitted under this Credit Agreement that, with respect to the matters referred
to in this Section 8.14, contain provisions no more restrictive on the Borrower
and its Subsidiaries than the Indebtedness being refinanced and (b) the Agecroft
Transaction Documents, and (2) this Credit Agreement and the other Credit
Documents.
8.15. TRANSACTIONS WITH CCA ENTITIES.
Notwithstanding the provisions of Section 8.9, the Credit Parties will
not permit any Consolidated Party to make any payment to, or sell, lease,
transfer or otherwise dispose of any of its properties or assets to, or purchase
any property or assets from, or enter into or make, amend or modify any
transaction, contract, agreement, understanding, loan, advance or guarantee
with, any CCA Entity (each, a "CCA Entity Transaction"), unless: (a) such CCA
Entity Transaction is on terms that are no less favorable to such Credit Party
or the relevant Consolidated Party than those that would have been obtained in a
comparable transaction by the Credit Party or such Consolidated Party with an
unrelated Person and (b) prior to the consummation of any CCA Entity Transaction
or series of related CCA Entity Transactions involving aggregate consideration
in excess of $5,000,000, the Aggregate Required Lenders shall have consented in
writing to such CCA Entity Transaction or CCA Entity Transactions; provided,
however, that the following transactions shall be deemed not to be CCA Entity
Transactions: (i) amendments to any agreements with Management Opco that do not
increase the total payments to be due to Management Opco thereunder by more than
$5,000,000 in the aggregate for all such amended agreements, (ii) other
amendments to lease agreements or management contracts that do not alter the
rent provisions or economic terms of such agreements (including providing for
any rent deferrals), (iii) payments or transactions pursuant to Existing CCA
Entity Agreements and (iv) any new arrangement with respect to properties not
under lease with any of the CCA Entities as of the Restatement Effective Date
entered into by the Borrower or any of its Restricted Subsidiaries in the
ordinary course of business, which is fair to the Borrower and its Restricted
Subsidiaries in the reasonable opinion of a majority of the disinterested
members of the Board of Directors of the Borrower. For the avoidance of doubt,
the term "CCA Entity Transaction" shall include, without limitation, any
amendment or modification of any of the Existing CCA Entity Agreements.
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8.16. SPECULATIVE TRANSACTIONS.
The Credit Parties will not permit any Consolidated Party to enter into
any speculative hedging or similar transaction (such as a forward equity
purchase agreement).
SECTION 9.
EVENTS OF DEFAULT
9.1. EVENTS OF DEFAULT.
An Event of Default shall exist upon the occurrence of any of the
following specified events (each an "Event of Default"):
(a) Payment. Any Credit Party shall
(i) default in the payment when due of any principal
of any of the Loans or of any reimbursement obligations
arising from drawings under Letters of Credit, or
(ii) default, and such default shall continue for
three (3) or more Business Days, in the payment when due of
any interest on the Loans or on any reimbursement obligations
arising from drawings under Letters of Credit, or of any Fees
or other amounts owing hereunder, under any of the other
Credit Documents or in connection herewith or therewith; or
(b) Representations. Any representation, warranty or
statement made or deemed to be made by any Credit Party herein, in any
of the other Credit Documents, or in any statement or certificate
delivered or required to be delivered pursuant hereto or thereto shall
prove untrue in any material respect on the date as of which it was
deemed to have been made; or
(c) Covenants. Any Credit Party shall
(i) default in the due performance or observance of
any term, covenant or agreement contained in Sections 7.2,
7.4, 7.9, 7.11, 7.12, 7.14, 7.15, 7.16, 7.17, 7.18 or 8.1
through 8.15, inclusive;
(ii) default in the due performance or observance of
any term, covenant or agreement contained in Sections 7.1(a),
(b), (c), (e) or (l) and such default shall continue
unremedied for a period of at least 5 days after the earlier
of a responsible officer of a Credit Party becoming aware of
such default or notice thereof by the Administrative Agent; or
(iii) default in the due performance or observance by
it of any term, covenant or agreement (other than those
referred to in subsections (a), (b), (c)(i) or (c)(ii) of this
Section 9.1) contained in this Credit Agreement and such
default shall continue unremedied for a period of at least 30
days after the earlier of a
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responsible officer of a Credit Party becoming aware of such
default or notice thereof by the Administrative Agent; or
(d) Other Credit Documents. (i) Any Credit Party shall default
in the due performance or observance of any term, covenant or agreement
in any of the other Credit Documents (subject to applicable grace or
cure periods, if any), or (ii) except as a result of or in connection
with a merger of a Subsidiary permitted under Section 8.4, any Credit
Document shall fail to be in full force and effect or to give the
Administrative Agent and/or the Lenders the Liens, rights, powers and
privileges purported to be created thereby, or any Credit Party shall
so state in writing; or
(e) Guaranties. Except as the result of or in connection with
a merger of a Subsidiary permitted under Section 8.4, the guaranty
given by any Guarantor hereunder (including any Additional Credit
Party) or any provision thereof shall cease to be in full force and
effect, or any Guarantor (including any Additional Credit Party)
hereunder or any Person acting by or on behalf of such Guarantor shall
deny or disaffirm such Guarantor's obligations under such guaranty, or
any Guarantor shall default in the due performance or observance of any
term, covenant or agreement on its part to be performed or observed
pursuant to any guaranty; or
(f) Bankruptcy, etc. Any Bankruptcy Event shall occur with
respect to any Consolidated Party; or
(g) Defaults under Other Agreements. With respect to any
Indebtedness (other than Indebtedness outstanding under this Credit
Agreement) in excess of $1,000,000 in the aggregate for the
Consolidated Parties taken as a whole, (A)(1) any Consolidated Party
shall default in any payment (beyond the applicable grace period with
respect thereto, if any) with respect to any such Indebtedness, or (2)
a default in the observance or performance relating to such
Indebtedness or contained in any instrument or agreement evidencing,
securing or relating thereto, or any other event or condition shall
occur and continue or condition exist, the effect of which default or
other event or condition is to cause, or permit the holder or holders
of such Indebtedness (or trustee or agent on behalf of such holders) to
cause (determined without regard to whether any notice or lapse of time
is required), any such Indebtedness to become due prior to its stated
maturity; or (B) any such Indebtedness shall be declared due and
payable, or required to be prepaid other than by a regularly scheduled
required prepayment, prior to the stated maturity thereof; or
(h) Judgments. One or more judgments or decrees shall be
entered against one or more of the Consolidated Parties involving a
liability of $1,000,000 or more in the aggregate (to the extent not
paid or fully covered by insurance provided by a carrier who has
acknowledged coverage and has the ability to perform) and any such
judgments or decrees shall not have been vacated, discharged or stayed
or bonded pending appeal within 30 days from the entry thereof; or
(i) ERISA. Any of the following events or conditions shall
occur, if such event or condition could reasonably be expected to have
a Material Adverse Effect: (i) any "accumulated funding deficiency," as
such term is defined in Section 302 of ERISA and
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Section 412 of the Code, whether or not waived, shall exist with
respect to any Plan, or any lien shall arise on the assets of any
Consolidated Party or any ERISA Affiliate in favor of the PBGC or a
Plan; (ii) an ERISA Event shall occur with respect to a Single Employer
Plan, which is, in the reasonable opinion of the Administrative Agent,
likely to result in the termination of such Plan for purposes of Title
IV of ERISA; (iii) an ERISA Event shall occur with respect to a
Multiemployer Plan or Multiple Employer Plan, which is, in the
reasonable opinion of the Administrative Agent, likely to result in (A)
the termination of such Plan for purposes of Title IV of ERISA, or (B)
any Consolidated Party or any ERISA Affiliate incurring any liability
in connection with a withdrawal from, reorganization of (within the
meaning of Section 4241 of ERISA), or insolvency or (within the meaning
of Section 4245 of ERISA) such Plan; or (iv) any prohibited transaction
(within the meaning of Section 406 of ERISA or Section 4975 of the
Code) or breach of fiduciary responsibility shall occur which may
subject any Consolidated Party or any ERISA Affiliate to any liability
under Sections 406, 409, 502(i), or 502(l) of ERISA or Section 4975 of
the Code, or under any agreement or other instrument pursuant to which
any Consolidated Party or any ERISA Affiliate has agreed or is required
to indemnify any person against any such liability;
(j) [Intentionally Omitted.]
(k) Management Opco Credit Agreement. There shall occur an
Event of Default (as defined in the Management Opco Credit Agreement)
under the Management Opco Credit Agreement;
(l) Lease Agreements. There shall occur (i) an event of
default under the Master Lease (subject to applicable grace or cure
periods, if any), (ii) any payment default (beyond any applicable grace
period) under any lease agreement (not including the Master Lease)
between the Borrower and Management Opco (each such lease agreement
(including the Master Lease), a "Lease Agreement") or (iii) any
shortening or limitation on the term of any Lease Agreement if, after
giving effect thereto, such Lease Agreement would not comply with
Section 7.15;
(m) License Agreements. Any of the Opco License Agreement, the
Service Company A License Agreement or the Service Company B License
Agreement shall be terminated or canceled; or
(n) Ownership. There shall occur a Change of Control.
(o) Amendments. Management Opco shall (a) enter into any
amendment of the Management Opco Credit Agreement which would (i)
reduce the committed amount of financing available under the Management
Opco Credit Agreement, (ii) decrease or shorten the maturity date of
the loans under the Management Opco Credit Agreement, (iii) increase
the rate at which interest is payable on the loans under the Management
Opco Credit Agreement, (iv) cause the financial covenants in the
Management Opco Credit Agreement to be more restrictive with respect to
Management Opco than those financial covenants in effect as of the
Closing Date, or (b) refinance the indebtedness under the Management
Opco Credit Agreement on terms and conditions less favorable to
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Management Opco or the Borrower than such existing indebtedness under
the Management Opco Credit Agreement.
9.2. ACCELERATION; REMEDIES.
Upon the occurrence of an Event of Default, and at any time thereafter
unless and until such Event of Default has been waived by the requisite Lenders
(pursuant to the voting requirements of Section 11.6) or cured to the
satisfaction of the requisite Lenders (pursuant to the voting procedures in
Section 11.6 and Section 11.6A, as applicable), the Administrative Agent shall,
upon the request and direction of the Required Lenders or the Aggregate Required
Lenders, by written notice to the Credit Parties, take one or more of the
following actions:
(a) Termination of Commitments. Declare the Commitments
terminated whereupon the Commitments shall be immediately terminated.
(b) Acceleration. Declare the unpaid principal of and any
accrued interest in respect of all Loans, any reimbursement obligations
arising from drawings under Letters of Credit and any and all other
indebtedness or obligations of any and every kind owing by the Credit
Parties to the Administrative Agent and/or any of the other Secured
Parties hereunder to be due whereupon the same shall be immediately due
and payable without presentment, demand, protest or other notice of any
kind, all of which are hereby waived by the Credit Parties.
(c) Cash Collateral. Direct the Credit Parties to pay (and the
Credit Parties agree that upon receipt of such notice, or upon the
occurrence of an Event of Default under Section 9.1(f), they will
immediately pay) to the Administrative Agent additional cash, to be
held by the Administrative Agent, for the benefit of the Revolving
Lenders, in a cash collateral account as additional security for the
LOC Obligations in respect of subsequent drawings under all then
outstanding Letters of Credit in an amount equal to the maximum
aggregate amount which may be drawn under all Letters of Credits then
outstanding.
(d) Enforcement of Rights. Enforce any and all rights and
interests created and existing under the Credit Documents including,
without limitation, all rights and remedies existing under the
Collateral Documents, all rights and remedies against a Guarantor and
all rights of set-off.
Notwithstanding the foregoing, if an Event of Default specified in
Section 9.1(f) shall occur with respect to the Borrower, then the Commitments
shall automatically terminate and all Loans, all reimbursement obligations
arising from drawings under Letters of Credit, all accrued interest in respect
thereof, all accrued and unpaid Fees and other indebtedness or obligations owing
to the Administrative Agent and/or any of the other Secured Parties hereunder
automatically shall immediately become due and payable without the giving of any
notice or other action by the Administrative Agent or the other Secured Parties.
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SECTION 10.
AGENCY PROVISIONS
10.1. APPOINTMENT, POWERS AND IMMUNITIES.
(a) Each Secured Party (other than the Administrative Agent) hereby
irrevocably appoints and authorizes the Administrative Agent to act as its agent
under this Credit Agreement and the other Credit Documents with such powers and
discretion as are specifically delegated to the Administrative Agent by the
terms of this Credit Agreement and the other Credit Documents, together with
such other powers as are reasonably incidental thereto. The Administrative Agent
(which term as used in this sentence and in Section 10.5 and the first sentence
of Section 10.6 hereof 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 Credit
Agreement and shall not be a trustee or fiduciary for any other Secured Party;
(b) shall not be responsible to the other Secured Parties for any recital,
statement, representation, or warranty (whether written or oral) made in or in
connection with any Credit Document or any certificate or other document
referred to or provided for in, or received by any of them under, any Credit
Document, or for the value, validity, effectiveness, genuineness,
enforceability, or sufficiency of any Credit Document, or any other document
referred to or provided for therein or for any failure by any Credit Party 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 any Credit Party or
the satisfaction of any condition or to inspect the property (including the
books and records) of any Credit Party or any of its Subsidiaries or Affiliates;
(d) shall not be required to initiate or conduct any litigation or collection
proceedings under any Credit Document; and (e) shall not be responsible for any
action taken or omitted to be taken by it under or in connection with any Credit
Document, except for its own gross negligence or willful misconduct. The
Administrative 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. For the avoidance of
doubt, LCPI is the successor Administrative Agent to the Original Administrative
Agent as provided in Section 10.7 of the Original Credit Agreement and this
Credit Agreement.
10.2. RELIANCE BY ADMINISTRATIVE AGENT.
The Administrative 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 Credit Party), independent accountants, and other
experts selected by the Administrative Agent. The Administrative Agent may deem
and treat the payee of any Note as the holder thereof for all purposes hereof
unless and until the Administrative Agent receives and accepts an Assignment and
Acceptance executed in accordance with Section 11.3(b) hereof. As to any matters
not expressly provided for by this Credit Agreement, the Administrative 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 Required Lenders
and/or the Aggregate Required Lenders and such instructions shall be binding on
all of the Lenders; provided, however, that the Administrative Agent shall not
be required to take any action that exposes the Administrative Agent to personal
liability or that is contrary to any Credit Document or applicable law or unless
it shall first be indemnified to its satisfaction by the Lenders against any and
all liability and expense which may be incurred by it by reason of taking any
such action.
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10.3. DEFAULTS.
The Administrative Agent shall not be deemed to have knowledge or
notice of the occurrence of a Default or Event of Default unless the
Administrative Agent has received written notice from a Lender or a Credit Party
specifying such Default or Event of Default and stating that such notice is a
"Notice of Default". In the event that the Administrative Agent receives such a
notice of the occurrence of a Default or Event of Default, the Administrative
Agent shall give prompt notice thereof to the Lenders. The Administrative Agent
shall (subject to Section 10.2 hereof) take such action with respect to such
Default or Event of Default as shall reasonably be directed by the Required
Lenders and/or the Aggregate Required Lenders, provided that, unless and until
the Administrative Agent shall have received such directions, the Administrative
Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default or Event of Default as it shall
deem advisable in the best interest of the Lenders.
10.4. RIGHTS AS A LENDER.
With respect to its Commitment and the Loans made by it, LCPI (and any
successor acting as Administrative Agent) in its capacity as a Lender hereunder
shall have the same rights and powers hereunder as any other Lender and may
exercise the same as though it were not acting as the Administrative Agent, and
the term "Lender" or "Lenders" shall, unless the context otherwise indicates,
include the Administrative Agent in its individual capacity. LCPI (and any
successor acting as Administrative Agent) and its Affiliates may (without having
to account therefor to any Lender) 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 Credit Party or any of its
Subsidiaries or Affiliates as if it were not acting as Administrative Agent, and
LCPI (and any successor acting as Administrative Agent) and its Affiliates may
accept fees and other consideration from any Credit Party or any of its
Subsidiaries or Affiliates for services in connection with this Credit Agreement
or otherwise without having to account for the same to the Lenders.
10.5. INDEMNIFICATION.
The Lenders agree to indemnify the Administrative Agent (to the extent
not reimbursed under Section 11.5 hereof, but without limiting the obligations
of the Credit Parties under such Section) ratably in accordance with their
respective Commitments, for any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses (including
attorneys' fees), or disbursements of any kind and nature whatsoever that may be
imposed on, incurred by or asserted against the Administrative Agent (including
by any Lender) in any way relating to or arising out of any Credit Document or
the transactions contemplated thereby or any action taken or omitted by the
Administrative Agent under any Credit Document (including any of the foregoing
arising from the negligence of the Administrative Agent); provided that no
Lender shall be liable for any of the foregoing to the extent they arise from
the gross negligence or willful misconduct of the Person to be indemnified.
Without limitation of the foregoing, each Lender agrees to reimburse the
Administrative Agent promptly upon demand for its ratable share
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of any costs or expenses payable by the Credit Parties under Section 11.5, to
the extent that the Administrative Agent is not promptly reimbursed for such
costs and expenses by the Credit Parties. The agreements in this Section 10.5
shall survive the repayment of the Loans, LOC Obligations and other obligations
under the Credit Documents and the termination of the Commitments hereunder and
shall be subject to the proviso in Section 1.4(b).
10.6. NON-RELIANCE ON AGENTS AND OTHER LENDERS.
Each Lender agrees that it has, independently and without reliance on
the Administrative Agent, the Documentation Agent, the Syndication Agent, the
Co-Agent, the Lead Arranger or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own credit analysis of the
Credit Parties and their Subsidiaries and decision to enter into this Credit
Agreement and that it will, independently and without reliance upon the
Administrative Agent, the Documentation Agent, the Syndication Agent, the
Co-Agent, the Lead Arranger or any other Lender, 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 Credit
Documents. Except for notices, reports, and other documents and information
expressly required to be furnished to the Lenders by the Administrative Agent
hereunder, the Administrative 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 any Credit Party or any of its Subsidiaries
or Affiliates that may come into the possession of the Administrative Agent or
any of its Affiliates.
10.7. SUCCESSOR ADMINISTRATIVE AGENT.
(a) The Administrative Agent may resign at any time by giving notice
thereof to the Lenders and the Credit Parties. Upon any such resignation, the
Aggregate Required Lenders shall have the right to appoint a successor
Administrative Agent. If no successor Administrative Agent shall have been so
appointed by the Aggregate Required Lenders and shall have accepted such
appointment within thirty (30) days after the retiring Administrative Agent's
giving of notice of resignation, then the retiring Administrative Agent may, on
behalf of the Lenders, appoint a successor Administrative Agent which shall be a
commercial bank or financial organization organized under the laws of the United
States of America or any state thereof having combined capital and surplus of at
least $100,000,000. Upon the acceptance of any appointment as Administrative
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 Administrative Agent, and the retiring Administrative Agent shall
be discharged from its duties and obligations hereunder. After any retiring
Administrative Agent's resignation hereunder as Administrative Agent, the
provisions of this Section 10 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
Administrative Agent.
(b) Societe Generale, in its capacity as Documentation Agent, The Bank
of Nova Scotia, in its capacity as Syndication Agent, SouthTrust Bank, N.A., in
its capacity as Co-Agent, and Lehman Brothers Inc., in its capacity as Lead
Arranger shall have no duties or responsibilities and shall incur no liability
under this Credit Agreement or any of the other Credit Documents.
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(c) The Aggregate Required Lenders may elect to remove LCPI, as
Administrative Agent, in the event LCPI fails to maintain a Revolving Commitment
in an amount equal to Ten Million Dollars ($10,000,000); provided that such
Aggregate Required Lenders shall have appointed a successor Administrative
Agent.
SECTION 11.
MISCELLANEOUS
11.1. NOTICES.
Except as otherwise expressly provided herein, all notices and other
communications shall be in writing and shall have been duly given and shall be
effective (a) when delivered, (b) when transmitted via telecopy (or other
facsimile device) to the number set out below or on Schedule 2.1(a), as
applicable, (c) the Business Day following the day on which the same has been
delivered prepaid to a reputable national overnight air courier service, or (d)
the third Business Day following the day on which the same is sent by certified
or registered mail, postage prepaid, in each case to the respective parties at
the address, in the case of the Credit Parties and the Administrative Agent, set
forth below, and, in the case of the Lenders, set forth on Schedule 2.1(a), or
at such other address as such party may specify by written notice to the other
parties hereto:
if to any Credit Party:
Prison Realty Trust, Inc.
10 Burton Hills Boulevard, Suite 100
Nashville, Tennessee 37215
Attn: Doctor R. Crants
Telephone: (615) 263-0200
Telecopy: (615) 263-0212
if to the Administrative Agent:
Lehman Commercial Paper Inc.
3 World Financial Center
New York, New York 10285
Attn: Michael O'Brien
Telephone: (212) 526-0437
Telecopy: (212) 526-7691
with a copy to:
Latham & Watkins
885 Third Avenue
New York, New York 10022
Attn: Christopher R. Plaut
Telephone: (212) 906-1262
Telecopy: (212) 751-4864
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11.2. RIGHT OF SET-OFF; ADJUSTMENTS.
Upon the occurrence and during the continuance of any Event of Default,
each Lender (and each of its Affiliates) is hereby authorized 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 such Lender (or any
of its Affiliates) to or for the credit or the account of any Credit Party
against any and all of the obligations of such Person now or hereafter existing
under this Credit Agreement, under the Notes, under any other Credit Document or
otherwise, irrespective of whether such Lender shall have made any demand
hereunder or thereunder and although such obligations may be unmatured. Each
Lender agrees promptly to notify any affected Credit Party after any such
set-off and application made by such Lender; provided, however, that the failure
to give such notice shall not affect the validity of such set-off and
application. The rights of each Lender under this Section 11.2 are in addition
to other rights and remedies (including, without limitation, other rights of
set-off) that such Lender may have.
11.3. BENEFIT OF AGREEMENT.
(a) This Credit Agreement shall be binding upon and inure to
the benefit of and be enforceable by the respective successors and
assigns of the parties hereto; provided that none of the Credit Parties
may assign or transfer any of its interests and obligations without
prior written consent of the Lenders; provided further that the rights
of each Lender to transfer, assign or grant participations in its
rights and/or obligations hereunder shall be limited as set forth in
this Section 11.3.
(b) Each Lender may assign to one or more Eligible Assignees
all or a portion of its rights and obligations under this Credit
Agreement (including, without limitation, all or a portion of its
Loans, its Notes, and its Commitment); provided, however, that
(i) each such assignment shall be to an Eligible
Assignee;
(ii) except in the case of an assignment to another
Lender or an assignment of all of a Lender's rights and
obligations under this Credit Agreement, any such partial
assignment shall be in an amount at least equal to $5,000,000
(or, if less, the remaining amount of the Commitment being
assigned by such Lender) or an integral multiple of $1,000,000
in excess thereof;
(iii) each such assignment by a Lender shall be of a
constant, and not varying, percentage of all of its rights and
obligations under this Credit Agreement and the Notes; and
(iv) the parties to such assignment shall execute and
deliver to the Administrative Agent for its acceptance an
Assignment and Acceptance in the form of Exhibit 11.3(b)
hereto, together with any Note subject to such assignment and
a processing fee of $3,500 (except that no processing fee
shall be payable (y) in connection with an assignment of the
Term Loan by or to Lehman Commercial Paper Inc. or any
Affiliate thereof or (z) with respect to any assignment of the
Term Loan, in the case of an Assignee that is already a Term
Lender or is an
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Affiliate of a Term Lender or a Person under common management
with a Term Lender).
Upon execution, delivery, acceptance and recording (as provided in
paragraph (c) below) of such Assignment and Acceptance, the assignee
thereunder shall be a party hereto and, to the extent of such
assignment, have the obligations, rights, and benefits of a Lender
hereunder and the assigning Lender shall, to the extent of such
assignment, relinquish its rights and be released from its obligations
under this Credit Agreement. Upon the consummation of any assignment
pursuant to this Section 11.3(b), the assignor, the Administrative
Agent and the Credit Parties shall make appropriate arrangements so
that, if required, new Notes are issued to the assignor and the
assignee. If the assignee is not a United States person under Section
7701(a)(30) of the Code, it shall deliver to the Credit Parties and the
Administrative Agent certification as to exemption from deduction or
withholding of Taxes in accordance with Section 3.11.
(c) The Administrative Agent shall, on behalf of the Borrower,
maintain at its address referred to in Section 11.1 a copy of each
Assignment and Acceptance delivered to and accepted by it and a
register for the recordation of the names and addresses of the Lenders
and the Commitment of, and principal amount of the Loans owing to, each
Lender from time to time (the "Register"). The entries in the Register
shall be conclusive and binding for all purposes, absent manifest
error, and the Credit Parties, the Administrative Agent and the Lenders
may treat each Person whose name is recorded in the Register as a
Lender hereunder for all purposes of this Credit Agreement. Any
assignment of any Loan, whether or not evidenced by a Note, shall be
effective only upon appropriate entries with respect thereto being made
in the Register (and each Note shall expressly so provide). The
Register shall be available for inspection by the Credit Parties or any
Lender at any reasonable time and from time to time upon reasonable
prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed
by the parties thereto, together with any Note subject to such
assignment and payment of the processing fee, the Administrative Agent
shall, if such Assignment and Acceptance has been completed and is in
substantially the form of Exhibit 11.3(b) hereto, (i) accept such
Assignment and Acceptance, (ii) record the information contained
therein in the Register and (iii) give prompt notice thereof to the
parties thereto.
(e) Each Lender may sell participations to one or more Persons
in all or a portion of its rights, obligations or rights and
obligations under this Credit Agreement (including all or a portion of
its Commitment or its Loans); provided, however, that (i) such Lender's
obligations under this Credit Agreement shall remain unchanged, (ii)
such Lender shall remain solely responsible to the other parties hereto
for the performance of such obligations, (iii) the participant shall be
entitled to the benefit of the yield protection provisions contained in
Sections 3.7 through 3.12, inclusive, and the right of set-off
contained in Section 11.2, and (iv) the Credit Parties shall continue
to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Credit Agreement, and such
Lender shall retain the sole right to enforce the obligations of the
Credit Parties relating to the Credit Party Obligations owing to such
Lender and to approve any amendment, modification, or waiver of any
provision of this
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Credit Agreement (other than amendments, modifications, or waivers
decreasing the amount of principal of or the rate at which interest is
payable on such Loans or Notes, extending any scheduled principal
payment date or date fixed for the payment of interest on such Loans or
Notes, or extending its Commitment).
(f) Notwithstanding any other provision set forth in this
Credit Agreement, any Lender may at any time assign and pledge all or
any portion of its Loans and its Notes to any Federal Reserve Bank as
collateral security pursuant to Regulation A and any Operating Circular
issued by such Federal Reserve Bank, and any Term Lender may otherwise
create security interests in any Term Loan or Term Note in accordance
with applicable law. No such assignment shall release the assigning
Lender from its obligations hereunder.
(g) Any Lender may furnish any information concerning the
Consolidated Parties in the possession of such Lender from time to time
to assignees and participants (including prospective assignees and
participants), subject, however, to the provisions of Section 11.14
hereof.
11.3A TRANCHE C ASSIGNMENTS AND PLEDGES.
(a) No processing fee shall be payable to the Administrative
Agent (y) in connection with an assignment of the Tranche C Term Loan
by or to Lehman Commercial Paper Inc. or any Affiliate thereof or (z)
with respect to any assignment of the Tranche C Term Loan, in the case
of an Assignee that is already a Tranche C Term Lender or is an
Affiliate of a Tranche C Term Lender or a Person under common
management with a Tranche C Term Lender or a fund advised by the same
investment advisor as a Tranche C Term Lender (or an Affiliate
thereof).
(b) Any Tranche C Term Lender may create security interests in
any Tranche C Term Loan or Tranche C Term Note in accordance with
applicable law.
11.4. NO WAIVER; REMEDIES CUMULATIVE.
No failure or delay on the part of the Administrative Agent or any
other Secured Party in exercising any right, power or privilege hereunder or
under any other Credit Document and no course of dealing between the
Administrative Agent or any other Secured Party and any of the Credit Parties
shall operate as a waiver thereof; nor shall any single or partial exercise of
any right, power or privilege hereunder or under any other Credit Document
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege hereunder or thereunder. The rights and remedies
provided herein are cumulative and not exclusive of any rights or remedies which
the Administrative Agent or any other Secured Party would otherwise have. No
notice to or demand on any Credit Party in any case shall entitle the Credit
Parties to any other or further notice or demand in similar or other
circumstances or constitute a waiver of the rights of the Administrative Agent
or the other Secured Parties to any other or further action in any circumstances
without notice or demand.
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118
11.5. EXPENSES; INDEMNIFICATION.
(a) The Credit Parties jointly and severally agree to pay on demand all
costs and expenses of the Administrative Agent in connection with the
syndication, preparation, execution, delivery, administration, modification, and
amendment of this Credit Agreement, the other Credit Documents, and the other
documents to be delivered hereunder, including, without limitation, the
reasonable fees and expenses of counsel for the Administrative Agent with
respect thereto and with respect to advising the Administrative Agent as to its
rights and responsibilities under the Credit Documents. The Credit Parties
further jointly and severally agree to pay on demand all costs and expenses of
the Administrative Agent and the Lenders, if any (including, without limitation,
reasonable attorneys' fees and expenses), in connection with the enforcement
(whether through negotiations, legal proceedings, or otherwise) of the Credit
Documents and the other documents to be delivered hereunder.
(b) The Credit Parties jointly and severally agree to indemnify and
hold harmless the Administrative Agent and each Lender and each of their
Affiliates and their respective officers, directors, employees, agents, and
advisors (each, an "Indemnified Party") from and against any and all claims,
damages, losses, liabilities, costs, and expenses (including, without
limitation, reasonable attorneys' fees) that may be incurred by or asserted or
awarded against any Indemnified Party, in each case arising out of or in
connection with or by reason of (including, without limitation, in connection
with any investigation, litigation, or proceeding or preparation of defense in
connection therewith) the Credit Documents, any of the transactions contemplated
herein or the actual or proposed use of the proceeds of the Loans (including any
of the foregoing arising from the negligence of the Indemnified Party), except
to the extent such claim, damage, loss, liability, cost, or expense is found in
a final, non-appealable judgment by a court of competent jurisdiction to have
resulted from such Indemnified Party's gross negligence or willful misconduct.
In the case of an investigation, litigation or other proceeding to which the
indemnity in this Section 11.5 applies, such indemnity shall be effective
whether or not such investigation, litigation or proceeding is brought by any of
the Credit Parties, their respective directors, shareholders or creditors or an
Indemnified Party or any other Person or any Indemnified Party is otherwise a
party thereto and whether or not the transactions contemplated hereby are
consummated. The Credit Parties agree not to assert any claim against the
Administrative Agent, any Lender, any of their Affiliates, or any of their
respective directors, officers, employees, attorneys, agents, and advisers, on
any theory of liability, for special, indirect, consequential, or punitive
damages arising out of or otherwise relating to the Credit Documents, any of the
transactions contemplated herein or the actual or proposed use of the proceeds
of the Loans.
(c) Without prejudice to the survival of any other agreement of the
Credit Parties hereunder, the agreements and obligations of the Credit Parties
contained in this Section 11.5 shall survive the repayment of the Loans, LOC
Obligations and other obligations under the Credit Documents and the termination
of the Commitments hereunder.
11.6. AMENDMENTS, WAIVERS AND CONSENTS.
Neither this Credit Agreement nor any other Credit Document nor any of
the terms hereof or thereof may be amended, changed, waived, discharged or
terminated unless such amendment, change, waiver, discharge or termination is in
writing entered into by, or approved in writing by, the Required Lenders and the
Borrower, provided, however, that:
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119
(i) without the consent of the Required Lenders and each other
Lender affected thereby, neither this Credit Agreement nor any other
Credit Document may be amended to
(a) extend the final maturity of any Loan or of any
reimbursement obligation, or any portion thereof, arising from
drawings under Letters of Credit,
(b) reduce the rate or extend the time of payment of
interest (other than as a result of waiving the applicability
of any post-default increase in interest rates) thereon or
Fees hereunder,
(c) reduce or waive the principal amount of any Loan
or of any reimbursement obligation, or any portion thereof,
arising from drawings under Letters of Credit,
(d) increase the Commitment of a Lender over the
amount thereof in effect (it being understood and agreed that
a waiver of any Default or Event of Default or mandatory
reduction in the Commitments shall not constitute a change in
the terms of any Commitment of any Lender),
(e) release all or substantially all of the
Collateral securing the Credit Party Obligations hereunder
(provided that the Administrative Agent may, without consent
from any other Lender, release any Collateral that is sold or
transferred by a Credit Party in conformance with Section
8.5),
(f) release the Borrower or substantially all of the
other Credit Parties from its or their obligations under the
Credit Documents,
(g) amend, modify or waive any provision of this
Section 11.6 or Section 3.6, 3.7, 3.8, 3.9, 3.10, 3.11, 3.12,
3.13, 3.14, 3.15, 9.1(a), 11.2, 11.3, 11.5 or 11.9,
(h) reduce any percentage specified in, or otherwise
modify, the definition of Required Lenders, or
(i) consent to the assignment or transfer by the
Borrower of all or substantially all of the other Credit
Parties of any of its or their rights and obligations under
(or in respect of) the Credit Documents except as permitted
thereby;
(ii) without the consent of the Administrative Agent, no
provision of Section 10 may be amended;
(iii) without the consent of the Issuing Lender, no provision
of Section 2.2 may be amended; and without the consent of the Swingline
Lender, no provision of Section 2.3 may be amended; and
(iv) with the consent of the Borrower and either the Required
Term Lenders or the Required Revolving Lenders, increase the rate of
interest applicable to the Loans
119
120
(such increase to be in an equal amount for the Term Loans and the
Revolving Loans).
Notwithstanding the fact that the consent of all the Lenders is
required in certain circumstances as set forth above, (x) each Lender
is entitled to vote as such Lender sees fit on any bankruptcy
reorganization plan that affects the Loans, and each Lender
acknowledges that the provisions of Section 1126(c) of the Bankruptcy
Code supersedes the unanimous consent provisions set forth herein and
(y) the Required Lenders may consent to allow a Credit Party to use
cash collateral in the context of a bankruptcy or insolvency
proceeding.
11.6A TRANCHE C AMENDMENTS, WAIVERS AND CONSENTS.
Neither this Credit Agreement nor any other Credit Document nor any of
the terms hereof or thereof may be amended, changed, waived, discharged
or terminated unless such amendment, change, waiver, discharge or
termination is in writing entered into by, or approved in writing by,
the Required Tranche C Term Lenders, provided, however, that:
(i) without the consent of the Required Tranche C Term Lenders
and each other Tranche C Term Lender affected thereby, neither this
Credit Agreement nor any other Credit Document may be amended to
(a) extend the final maturity of any Tranche C Term
Loan,
(b) reduce the rate or extend the time of payment of
interest in respect of Tranche C Term Loans (other than as a
result of waiving the applicability of any post-default
increase in interest rates) thereon or Fees with respect to
Tranche C Term Loan Commitments hereunder,
(c) reduce or waive the principal amount of any
Tranche C Term Loan,
(d) increase the Tranche C Term Loan Commitment of a
Lender over the amount thereof in effect (it being understood
and agreed that a waiver of any Default or Event of Default or
mandatory reduction in the Commitments shall not constitute
such an increase in the Commitment of any Lender),
(e) release all or substantially all of the
Collateral securing the Credit Party Obligations hereunder
(provided that the Administrative Agent may, without consent
from any other Lender, release any Collateral that is sold or
transferred by a Credit Party in conformance with Section
8.5),
(f) release the Borrower or substantially all of the
other Credit Parties from its or their obligations under the
Credit Documents,
(g) amend, modify or waive any provision of this
Section 11.6A or Section 3.6, 3.7, 3.7A, 3.8, 3.9, 3.10, 3.11,
3.12, 3.13, 3.13A, 3.14, 3.15, 9.1(a), 11.2, 11.3, 11.3A, 11.5
or 11.9,
120
121
(h) reduce any percentage specified in, or otherwise
modify, the definition of Required Tranche C Term Lenders, or
(i) consent to the assignment or transfer by the
Borrower or all or substantially all of the other Credit
Parties of any of its or their rights and obligations under
(or in respect of) the Credit Documents except as permitted
thereby;
(ii) with the consent of the Borrower, the Required Tranche C
Term Lenders and either the Required Term Lenders or the Required
Revolving Lenders, this Credit Agreement may be amended to increase the
rate of interest applicable to the Loans (such increase to be in an
equal amount for the Term Loans, the Tranche C Term Loans and the
Revolving Loans).
Notwithstanding the fact that the consent of all the Tranche C Term
Lenders is required in certain circumstances as set forth above, (x)
each Tranche C Term Lender is entitled to vote as such Tranche C Term
Lender sees fit on any bankruptcy reorganization plan that affects the
Tranche C Term Loans, and each Tranche C Term Lender acknowledges that
the provisions of Section 1126(c) of the Bankruptcy Code supersedes the
unanimous consent provisions set forth herein and (y) the Required
Tranche C Term Lenders may consent to allow a Credit Party to use cash
collateral in the context of a bankruptcy or insolvency proceeding,
provided that the Required Lenders consent as well; provided that, the
Required Lenders, on the one hand, and the Required Tranche C Term
Lenders, on the other hand, each agree not to consent to such use of
cash collateral without the affirmative consent of the other.
The definition of Aggregate Required Lenders may not be amended without
the consent of all Lenders.
11.7. COUNTERPARTS.
This Credit Agreement may be executed in any number of counterparts,
each of which when so executed and delivered shall be an original, but all of
which shall constitute one and the same instrument. It shall not be necessary in
making proof of this Credit Agreement to produce or account for more than one
such counterpart for each of the parties hereto. Delivery by facsimile by any of
the parties hereto of an executed counterpart of this Credit Agreement shall be
as effective as an original executed counterpart hereof and shall be deemed a
representation that an original executed counterpart hereof will be delivered.
11.8. HEADINGS.
The headings of the sections and subsections hereof are provided for
convenience only and shall not in any way affect the meaning or construction of
any provision of this Credit Agreement.
11.9. SURVIVAL.
All indemnities set forth herein, including, without limitation, in
Section 2.2(i), 3.11, 3.12, 10.5 or 11.5 shall survive the execution and
delivery of this Credit Agreement, the making
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122
of the Loans, the issuance of the Letters of Credit, the repayment of the Loans,
LOC Obligations and other obligations under the Credit Documents and the
termination of the Commitments hereunder, and all representations and warranties
made by the Credit Parties herein shall survive delivery of the Notes and the
making of the Loans hereunder.
11.10. GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE.
(a) THIS CREDIT AGREEMENT AND, UNLESS OTHERWISE EXPRESSLY
PROVIDED THEREIN, THE OTHER CREDIT DOCUMENTS AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE GOVERNED
BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK. Any legal action or proceeding with respect to this
Credit Agreement or any other Credit Document may be brought in the
courts of the State of New York in New York County, or of the United
States for the Southern District of New York, and, by execution and
delivery of this Credit Agreement, each of the Credit Parties hereby
irrevocably accepts for itself and in respect of its property,
generally and unconditionally, the nonexclusive jurisdiction of such
courts. Each of the Credit Parties further irrevocably consents to the
service of process out of any of the aforementioned courts in any such
action or proceeding by the mailing of copies thereof by registered or
certified mail, postage prepaid, to it at the address set out for
notices pursuant to Section 11.1, such service to become effective
three (3) days after such mailing. Nothing herein shall affect the
right of the Administrative Agent or any other Secured Party to serve
process in any other manner permitted by law or to commence legal
proceedings or to otherwise proceed against any Credit Party in any
other jurisdiction.
(b) Each of the Credit Parties hereby irrevocably waives any
objection which it may now or hereafter have to the laying of venue of
any of the aforesaid actions or proceedings arising out of or in
connection with this Credit Agreement or any other Credit Document
brought in the courts referred to in subsection (a) above and hereby
further irrevocably waives and agrees not to plead or claim in any such
court that any such action or proceeding brought in any such court has
been brought in an inconvenient forum.
(c) TO THE EXTENT PERMITTED BY LAW, EACH OF THE ADMINISTRATIVE
AGENT, THE DOCUMENTATION AGENT, THE SYNDICATION AGENT, THE CO-AGENT,
THE LEAD ARRANGER, THE LENDERS AND EACH OF THE CREDIT PARTIES HEREBY
IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING
OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS CREDIT AGREEMENT,
ANY OF THE OTHER CREDIT DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
11.11. SEVERABILITY.
If any provision of any of the Credit Documents is determined to be
illegal, invalid or unenforceable, such provision shall be fully severable and
the remaining provisions shall remain
122
123
in full force and effect and shall be construed without giving effect to the
illegal, invalid or unenforceable provisions.
11.12. ENTIRETY.
This Credit Agreement (including the provisions of Sections 1.4 and
11.16 hereof) together with the other Credit Documents represent the entire
agreement of the parties hereto and thereto, and supersede all prior agreements
and understandings, oral or written, if any, including any commitment letters or
correspondence relating to the Credit Documents or the transactions contemplated
herein and therein.
11.13. BINDING EFFECT; TERMINATION.
(a) This Credit Agreement shall become effective at such time
when all of the conditions set forth in Section 5.1 have been satisfied
or waived by the Aggregate Required Lenders and it shall have been
executed by each Credit Party and the Administrative Agent, and the
Administrative Agent shall have received copies hereof (telefaxed or
otherwise) which, when taken together, bear the signatures of each
Amending Lender and each Tranche C Term Lender, and thereafter this
Credit Agreement shall be binding upon and inure to the benefit of each
Credit Party, the Administrative Agent and each Lender and their
respective successors and assigns.
(b) The term of this Credit Agreement shall be until no Loans,
LOC Obligations or any other amounts payable hereunder or under any of
the other Credit Documents shall remain outstanding, no Letters of
Credit shall be outstanding, all of the Credit Party Obligations have
been irrevocably satisfied in full and all of the Commitments hereunder
shall have expired or been terminated.
11.14. CONFIDENTIALITY.
The Administrative Agent and each Lender (each, a "Lending Party")
agrees to keep confidential any information furnished or made available to it by
the Credit Parties pursuant to this Credit Agreement that is marked
confidential; provided that nothing herein shall prevent any Lending Party from
disclosing such information (a) to any other Lending Party or any Affiliate of
any Lending Party, or any officer, director, employee, agent, or advisor of any
Lending Party or Affiliate of any Lending Party, (b) to any other Person if
reasonably incidental to the administration of the credit facility provided
herein, (c) as required by any law, rule, or regulation, (d) upon the order of
any court or administrative agency, (e) upon the request or demand of any
regulatory agency or authority, (f) that is or becomes available to the public
or that is or becomes available to any Lending Party other than as a result of a
disclosure by any Lending Party prohibited by this Credit Agreement, (g) in
connection with any litigation to which such Lending Party or any of its
Affiliates may be a party, (h) to the extent necessary in connection with the
exercise of any remedy under this Credit Agreement or any other Credit Document,
(i) subject to provisions substantially similar to those contained in this
Section 11.14, to any actual or proposed participant or assignee and (j) to any
financial institution which is a direct or indirect contractual counterparty in
swap agreements or such contractual counterparty's professional advisors (so
long as any such contractual counterparty or professional advisor agrees to be
bound by the provisions of this Section 11.14).
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124
11.15. CONFLICT.
To the extent that there is a conflict or inconsistency between any
provision hereof, on the one hand, and any provision of any other Credit
Document, on the other hand, this Credit Agreement shall control.
11.16. EXISTING AGREEMENT SUPERSEDED.
As set forth in Section 1.4, the Original Credit Agreement is
superseded by this Credit Agreement, which has been executed in amendment,
restatement and modification, but not in extinguishment of, the obligations
under the Original Credit Agreement.
[Signature Pages Follow]
124
125
IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart
of this Credit Agreement to be duly executed and delivered as of the date first
above written.
BORROWER: PRISON REALTY TRUST, INC.
(formerly known as Prison Realty
Corporation), a Maryland corporation
By: /s/ Vida H. Carroll
Name: Vida H. Carroll
Title: Chief Financial Officer,
Secretary and Treasurer
SUBSIDIARY
GUARANTORS:
PRISON REALTY MANAGEMENT, INC.,
a Tennessee corporation
By: /s/ Vida H. Carroll
Name: Vida H. Carroll
Title: Secretary
of each of the foregoing
Subsidiary Guarantors
(SIGNATURES CONTINUE)
126
LENDERS: LEHMAN COMMERCIAL PAPER INC.,
individually in its capacity as a
Lender and in its capacity as
Administrative Agent
By: /s/ Michael E. O'Brien
Name: Michael E. O'Brien
Title: Authorized Secretary
(SIGNATURES CONTINUE)
127
SOCIETE GENERALE,
individually in its capacity as a
Lender and in its capacity as
Documentation Agent
By: /s/ Elizabeth R. Peck
Name: Elizabeth Peck
Title: Director - European Corporate
Group
(SIGNATURES CONTINUE)
128
THE BANK OF NOVA SCOTIA,
individually in its capacity as a
Lender and in its capacity
as Syndication Agent
By: /s/ Barbara J. Brown
Name: Barbara J. Brown
Title: Sr. Relationship Manager
(SIGNATURES CONTINUE)
129
SOUTHTRUST BANK, N.A.,
individually in its capacity as a
Lender and in its capacity
as Co-Agent
By: /s/ Marcy A. Harris
Name: Marcy A. Harris
Title: Vice President
(SIGNATURES CONTINUE)
130
LEHMAN BROTHERS INC.,
in its capacity as Advisor,
Lead Arranger and Book Manager
By: /s/ William J. Gallagher
-----------------------------
Name: William J. Gallagher
Title: Authorized Signatory
(SIGNATURES CONTINUE)
131
PRISON REALTY TRUST, INC.
Amended and Restated Credit Agreement #1
NATIONAL WESTMINSTER BANK PLC
By: NatWest Capital Markets Limited, its Agent
By: Greenwich Capital Markets, Inc., its Agent
By: /s/ Richard J. Jacoby
-----------------------------------------
Name: Richard J. Jacoby
Title: Assistant Vice President
National Westminster Bank PLC ("NatWest")
c/o Greenwich Capital Markets, Inc.
600 Steamboat Rd.
Greenwich, CT 06830
132
Pacific Redwood CBO Limited
as a Lender
By: /s/ Michael Long
----------------------------------
Name: Michael Long
Title: Assistant Vice President
Address: 700 Newport Center Drive
Newport Beach, CA 92660
Telephone: (949) 219-3745
Fax: (949) 219-3199
Ref: Prison Realty Trust, Inc. Amended and restated credit agreement dated
August 4, 1999.
133
MOUNTAIN CAPITAL CLO I, LTD.
as a Lender
By: /s/ Darren P. Riley
--------------------------------
Name: Darren P. Riley
Title: Director
134
VAN KAMPEN
PRIME RATE INCOME TRUST
By: Van Kampen Investment Advisory Corp.
By: /s/ Darvin D. Pierce
-------------------------------------
Name: Darvin D. Pierce
Title: Vice President
One Parkview Plaza
Oakbrook Terrace, IL 60181
Telephone: 630-684-6438
Fax: 630-684-6740
135
GENERAL ELECTRIC CAPITAL CORPORATION,
as a Lender
By: /s/ Abigail Wolf
-----------------------------------
Name: Abigail Wolf
Title: Duly Authorized Signatory
Address: 10 South LaSalle Street
Suite 2700
Chicago, IL 60603
136
SENIOR DEBT PORTFOLIO,
as a Lender
by: Boston Management and Research,
as investment advisor
By: /s/ Scott Page
----------------------------------
Name: Scott Page
Title
Address:
137
STANFIELD CLO, LTD.
by Stanfield Capital Partners LLC
as Collateral Manager
By: /s/ Gregory L. Smith
-------------------------------------
Name: Gregory L. Smith
Title: Partner
Address: 330 Madison Avenue, 27th Floor
New York, New York 10017
Telephone: 212-284-4311
Telecopy: 212-284-4325
138
FRANKLIN FLOATING RATE TRUST,
as a Lender
By: /s/ Chauncey Lufkin
-------------------------------------
Name: Chauncey Lufkin
Title Vice President
Address: 777 Mariners Island Boulevard
3rd Floor
San Mateo, CA 94404
Telephone: 650-525-7424
Telecopy: 650-312-3346
139
CYPRESSTREE INVESTMENT
PARTNERS I, LTD.,
as a Lender
By: CypressTree Investment Management
Company, Inc. as Portfolio Manager
By: /s/ Jeffrey W. Heuer
------------------------------------
Name: Jeffrey W. Heuer
Title: Principal
Address: 125 High Street, 14th Floor
Boston, MA 02110
Telephone: 617-646-0637
Telecopy: 617-946-5681
140
CYPRESSTREE INSTITUTIONAL FUND, LLC,
as a Lender
By: CypressTree Investment Management
Company, Inc. as Portfolio Manager
By: /s/ Jeffrey W. Heuer
-------------------------------------
Name: Jeffrey W. Heuer
Title: Principal
Address: 125 High Street, 14th Floor
Boston, MA 02110
Telephone: 617-646-0637
Telecopy: 617-946-5681
141
CYPRESS INVESTMENT FUND, LLC,
as a Lender
By: CypressTree Investment Management
Company, Inc. as Portfolio Manager
By: /s/ Jeffrey W. Heuer
-------------------------------------
Name: Jeffrey W. Heuer
Title: Principal
Address: 125 High Street, 14th Floor
Boston, MA 02110
Telephone: 617-646-0637
Telecopy: 617-946-5681
142
CYPRESSTREE SENIOR FLOATING RATE FUND,
as a Lender
By: CypressTree Investment Management
Company, Inc. as Portfolio Manager
By: /s/ Jeffrey W. Heuer
-------------------------------------
Name: Jeffrey W. Heuer
Title: Principal
Address: 125 High Street, 14th Floor
Boston, MA 02110
Telephone: 617-646-0637
Telecopy: 617-946-5681
143
NORTH AMERICAN SENIOR FLOATING RATE FUND,
as a Lender
By: CypressTree Investment Management
Company, Inc. as Portfolio Manager
By: /s/ Jeffrey W. Heuer
-------------------------------------
Name: Jeffrey W. Heuer
Title: Principal
Address: 125 High Street, 14th Floor
Boston, MA 02110
Telephone: 617-646-0637
Telecopy: 617-946-5681
144
ALLIANCE INVESTMENT OPPORTUNITIES FUND, L.L.C.
By: ALLIANCE INVESTMENT OPPORTUNITIES
MANAGEMENT, L.L.C., as Managing Member
By: ALLIANCE CAPITAL MANAGEMENT L.P., as
Managing Member
By: ALLIANCE CAPITAL MANAGEMENT CORPORATION,
as General Partner
By: /s/ Nelson Jantzen
------------------------------------------------
Name: Nelson Jantzen
Title: Senior Vice President
Address: Alliance Investment Opportunities, L.L.C.
c/o Alliance Capital Management, LP
1345 Avenue of the Americas - 37th Floor
New York, NY 10105
Attn: Kenneth Ostmann
Tel: (212) 969-1576
Fax: (212) 969-1466
145
Monument Capital Ltd., as Assignee
By: Alliance Capital Management L.P., as
Investment Manager
By: Alliance Capital Management Corporation,
as General Partner
By: /s/ Kenneth G. Ostmann
--------------------------------------------
Name: Kenneth G. Ostmann
Title: Vice President
Address: Monument Capital Ltd.
c/o Alliance Capital Management, LP
1345 Avenue of the Americas - 37th Floor
New York, NY 10105
Attn: Kenneth Ostmann
Tel: (212) 969-1576
Tax: (212) 969-1466
146
Oak Mountain Limited, as Assignee
By: Alliance Capital Management L.P., as
Investment Manager
By: Alliance Capital Management Corporation, as
General Partner
By: /s/ Kenneth G. Ostmann
----------------------------------------------
Name: Kenneth G. Ostmann
Title: Vice President
Address: Oak Mountain Limited
c/o Alliance Capital Management, LP
1345 Avenue of the Americas - 37th Floor
New York,NY 10105
Attn: Kenneth Ostmann
Tel: (212) 969-1576
Fax: (212) 969-1466
147
Alliance Capital Management L.P., as
Manager on behalf of ALLIANCE CAPITAL
FUNDING, L.L.C., as Assignee
by: ALLIANCE CAPITAL MANAGEMENT CORPORATION,
General Partner of Alliance Capital
Management L.P.
By: /s/ Kenneth G. Ostmann
----------------------------------------------
Name: Kenneth G. Ostmann
Title: Vice President
Address: Alliance Capital Management, LP
1345 Avenue of the Americas - 37th Floor
New York, NY 10105
Attn: Kenneth Ostmann
Tel: (212) 969-1576
Fax: (212) 969-1466
148
MERCANTILE BANK NATIONAL ASSOCIATION
as a Lender
By: /s/ Donald A. Adam
----------------------------------------------
Name: Donald A. Adam
Title: Vice President
Address: One Mercantile Center
7th & Washington, Tram 12-3
Saint Louis, Missouri 63101
149
CIBC Inc.
as a Lender
By: /s/ John Livingston
----------------------------------------------
Name: John Livingston
Title: Executive Director
Address: 425 Lexington Avenue
New York, NY 10017
Telephone: 212-856-3581
Telecopy: 212-856-3761
150
OCTAGON LOAN TRUST
BY: Octagon Credit Investors as manager,
as a Lender
By: /s/ Andrew D. Gordon
----------------------------------------------
Name: Andrew D. Gordon
Title: Portfolio Manager
Address: 380 Madison Avenue - 9th Floor
New York, NY 10017
Telephone: (212) 622-3064
Telecopy: (212) 622-3797
151
OCTAGON INVESTMENT PARTNERS II, LLC
BY: Octagon Credit Investors, LLC
as sub-investment manager,
as a Lender
By: /s/ Andrew D. Gordon
----------------------------------------------
Name: Andrew D. Gordon
Title: Portfolio Manager
Address: 380 Madison Avenue - 9th Floor
New York,NY 10017
Telephone: (212) 622-3064
Telecopy:(212) 622-3797
152
Compagnie Financiere de CIC et
de l'Union Europeenne,
as a Lender
By: /s/ Brian O'Leary
----------------------------------------------
Name: Brian O'Leary
Title: Vice President
By: /s/ Marcus Edward
----------------------------------------------
Name: Marcus Edward
Title: Vice President
Address: 520 Madison Avenue
Floor 37
Telephone: (212) 715-4422
Telecopy: (212) 715-4535
153
PILGRIM PRIME RATE TRUST
By: Pilgrim Investments, Inc.
as its investment manager
By: /s/ Daniel A. Norman
----------------------------------------------
Name: Daniel A. Norman
Title: Senior Vice President
Address: Two Renaissance Square
40 N. Central Ave., Suite 1200
Phoenix, AZ 85004-4424
Telephone: 602-417-8112
Telecopy: 602-417-8327
154
ML CBO IV (Cayman) Ltd.
By Highland Capital Management, L.P.
As Collateral Manager
By: /s/ Todd Travers
----------------------------------------------
Name: Todd Travers
Title: Portfolio Manager
Address: 13455 Noel Road
Suite 1150
Dallas, TX 75240
Telephone: 972-233-4300
Telecopy: 972-233-4343
155
BANK HAPOALIM B.M.,
as a Lender
By: /s/ Shlomo Braun
----------------------------------------------
Name: Shlomo Braun
Title: Senior Vice President
By: /s/ Shaun Breidbart
----------------------------------------------
Name: Shaun Breidbart
Title: Vice President
Address: 1177 Avenue of the Americas
New York, NY 10036
Telephone: (212) 782-2186
Telecopy:(212) 782-2187
156
Goldman Sachs Credit Partners L.P.
By: /s/ Mark DeNatale
----------------------------------------------
Address: 85 Broad Street
6th Floor
New York, NY 10004
Telephone: 212/902-4425
Telecopy: 212/902-3757
157
INDOSUEZ CAPITAL FUNDING IV, L.P.,
as a Lender
By: Indosuez Capital,
as portfolio advisor
By: /s/ Melissa Marano
----------------------------------------------
Name: Melissa Marano
Title: Vice President
Address:
158
INDOSUEZ CAPITAL FUNDING IIA, LIMITED,
as a Lender
By: Indosuez Capital,
as portfolio advisor
By: /s/ Melissa Marano
----------------------------------------------
Name: Melissa Marano
Title: Vice President
Address:
159
Comerica Bank,
as a Lender
By: /s/ Kristine L. Andersen
----------------------------------------------
Name: Kristine L. Andersen
Title: Assistant Vice President
Address: 500 Woodward Avenue
9th Floor, MC 3280
Detroit, MI 48226
Telephone: (313) 222-3648
Telecopy: (313) 222-3330
160
First American National Bank
As a Lender
By: /s/ Corey Napier
----------------------------------------------
Name: Corey Napier
Title: Sr. Vice President
Address: 315 Deaderick Street
Nashville, TN 37237
(615) 748-1429
(615) 748-2812 (Fax)
161
UNION PLANTERS BANK. N.A.,
as a Lender
By: /s/ John L. Burton
----------------------------------------------
Name: John L. Burton
Title: Senior Vice President
Address: 401 Union Street
Nashville, TN 37219
Telephone: 615-726-4383
Telecopy: 615-726-4274
162
KZH CRESCENT LLC,
as a Lender
By: /s/ Peter Chin
----------------------------------------------
Name: Peter Chin
Title: Authorized Agent
Address: c/o The Chase Manhattan Bank
450 West 33rd Street, 14th Floor
New York, NY 10001
163
KZH CRESCENT-2 LLC,
as a Lender
By: /s/ Peter Chin
----------------------------------------------
Name: Peter Chin
Title: Authorized Agent
Address: c/o The Chase Manhattan Bank
450 West 33rd Street, 14th Floor
New York, NY 10001
164
KZH CRESCENT-3 LLC,
as a Lender
By: /s/ Peter Chin
----------------------------------------------
Name: Peter Chin
Title: Authorized Agent
Address: c/o The Chase Manhattan Bank
450 West 33rd Street, 14th Floor
New York, NY 10001
165
KZH CYPRESSTREE-1 LLC,
as a Lender
By: /s/ Peter Chin
----------------------------------------------
Name: Peter Chin
Title: Authorized Agent
Address: c/o The Chase Manhattan Bank
450 West 33rd Street, 14th Floor
New York, NY 10001
166
KZH ING-2 LLC,
as a Lender
By: /s/ Peter Chin
----------------------------------------------
Name: Peter Chin
Title: Authorized Agent
Address: c/o The Chase Manhattan Bank
450 West 33rd Street, 14th Floor
New York, NY 10001
167
SRV-Highland, Inc.
By: /s/ Kelly C. Walker
----------------------------------------------
Name: Kelly C. Walker
Title: Vice President
Address: 101 N. Tryon Street
NC1-007-06-07
Charlotte, NC 28255
Telephone: 704/388-8943
Telecopy: 704/388-0648
168
BALANCED HIGH-YIELD FUND I,
as a Lender
By: BHF (USA) Capital Corporation,
acting as attorney-in-fact
By: /s/ Jeffrey N. Frost
----------------------------------------------
Name: Jeffrey N. Frost
Title: Vice President
By: /s/ Patrick S. Marsh
----------------------------------------------
Name: Patrick S. Marsh
Title: Associate
Address:
BHF (USA) Capital Corporation
590 Madison Avenue, 30th Floor
New York, NY 10025
169
BALANCED HIGH-YIELD FUND II,
as a Lender
By: BHF (USA) Capital Corporation,
acting as attorney-in-fact
By: /s/ Jeffrey N. Frost
----------------------------------------------
Name: Jeffrey N. Frost
Title: Vice President
By: /s/ Patrick S. Marsh
----------------------------------------------
Name: Patrick S. Marsh
Title: Associate
Address:
BHF (USA) Capital Corporation
590 Madison Avenue, 30th Floor
New York, NY 10025
170
Toronto Dominion (New York), Inc.
As a Lender
By: /s/ Jorge A. Garcia
----------------------------------------------
Name: Jorge A. Garcia
Title: Vice President
Address: 909 Fannin, Suite 1700
Houston, Texas 77010
(713) 653-8242
(713) 652-0914 Fax
171
United Of Omaha Life Insurance Company
By: TCW Asset Management Company,
its Investment Advisor
By: /s/ Justin L. Driscoll
----------------------------------------------
Name: Justin L. Driscoll
Title: Senior Vice President
By: /s/ Mark L. Gold
----------------------------------------------
Name: Mark L. Gold
Title: Managing Director
172
SYNDICATED LOAN FUNDING TRUST,
as a Lender
By: Lehman Commercial Paper Inc.,
not in its individual capacity but solely as
Asset Manager
By: /s/ Michael E. O'Brien
----------------------------------------------
Name: Michael E. O'Brien
Title: Authorized Signatory
Address: 3 World Financial Center, 11th Floor
New York, NY 10285
Telephone: 212-526-0437
Telecopy: 212-526-7691
173
OASIS COLLATERIZED HIGH INCOME
PORTFOLIOS-1, LTD
as a Lender
By: /s/ Andrew Ian Wignall
----------------------------------------------
Name: Andrew Ian Wignall
Title: Director
Address: c/o Stanfield Capital Partners
330 Madison Avenue - 27th Fl.
New York, NY 10017
Tel: 212-284-4306
Fax: 212-284-4315
174
AMARA-2 FINANCE, LTD.
as a Lender
By: /s/ Andrew Ian Wignall
----------------------------------------------
Name: Andrew Ian Wignall
Title: Director
Address: C/o Stanfield Capital Partners
330 Madison Avenue - 27th Fl.
New York, NY 10017
Tel: 212-284-4306
Fax: 212-284-4315
175
FIRST DOMINION FUNDING I,
as a Lender
By: /s/ Michael A. Monteleone
---------------------------------
Name: Michael A. Monteleone
Title: Authorized Signatory
Address: 1330 Avenue of the Americas
New York, NY 10019
Telephone: 212-603-8555
Facsimile: 212-603-8505
FIRST DOMINION FUNDING II,
as a Lender
By: /s/ Michael A. Monteleone
---------------------------------
Name: Michael A. Monteleone
Title: Authorized Signatory
Address: 1330 Avenue of the Americas
New York, NY 10019
Telephone: 212-603-8555
Facsimile: 212-603-8505
176
MORGAN STANLEY SENIOR FUNDING, INC.
as a Lender
By: /s/ Christopher A. Pucillo
----------------------------------
Name: Christopher A. Pucillo
Title: Vice President
Address: 1585 Broadway
10th Floor
New York, NY 10036
Attn: Richard Biggica
Telephone: (212) 761-4838
Telefax: (212) 761-0592
177
(Schedules and exhibits to this document are omitted from this filing.
Registrant agrees to furnish the Commission with a copy of any omitted schedule
or exhibit upon request.)