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Exhibit 10.11(A)
AMENDMENT AGREEMENT NO. 1 TO CREDIT AGREEMENT
THIS AMENDMENT AGREEMENT is made and entered into this 10th day of
March, 2000, by and among CPT OPERATING PARTNERSHIP, L.P., a Delaware limited
partnership (the "Borrower"), CORRECTIONAL PROPERTIES TRUST, a Maryland real
estate investment trust ("CPV"), BANK OF AMERICA, N.A. (successor by merger of
NationsBank, National Association) (the "Agent"), as Agent for the lenders (the
"Lenders") party to a Credit Agreement dated October 2, 1998 among such Lenders,
Borrower and the Agent, as amended (the "Agreement") and Lenders party to this
Amendment Agreement.
W I T N E S S E T H:
WHEREAS, the Borrower, CPV, the Agent and the Lenders have entered into
the Agreement pursuant to which the Lenders have agreed to make Revolving Loans
to the Borrower in the principal amount of $100,000,000 as evidenced by the
Notes (as defined in the Agreement); and
WHEREAS, the Borrower has requested that the Agreement by amended in
the manner herein set forth effective as of the date hereof;
NOW, THEREFORE, the Borrower, the Agent and the Lenders do hereby agree
as follows:
1. DEFINITIONS. The term "Agreement" as used herein and in the Loan
Documents (as defined in the Agreement) shall mean the Agreement as hereby
amended and modified. Unless the context otherwise requires, all terms used
herein without definition shall have the definition provided therefor in the
Agreement.
2. AMENDMENTS. Subject to the conditions hereof, the Agreement is
hereby amended, effective as of the date hereof, as follows:
(a) The definition of "Market Equity Capitalization" in
SECTION 1.1 is hereby deleted in its entirety.
(b) SECTION 10.1(c)(iii) is hereby amended in its entirety
so that as amended it shall read as follows:
"(iii) Permit at any time Consolidated Total
Indebtedness to exceed 50% of the sum of Consolidated Total
Liabilities and Consolidated Shareholders' Equity."
(c) EXHIBIT H is hereby amended in its entirety so that as
amended it is in the form of EXHIBIT H attached to this Amendment
Agreement.
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3. REPRESENTATIONS AND WARRANTIES. The Borrower and CPV hereby certify
that:
(a) The representations and warranties made by Borrower and
CPV in ARTICLE VIII thereof are true on and as of the date hereof
except that the financial statements referred to in SECTION 8.6(a)
shall be those most recently furnished to each Lender pursuant to
SECTION 9.1(a) and (b);
(b) There has been no material change in the condition,
financial or otherwise, of CPV, and its Subsidiaries since the date of
the most recent financial reports of CPV received by each Lender under
SECTION 9.1 thereof, other than changes in the ordinary course of
business, none of which has been a material adverse change;
(c) The business and properties of CPV and its Subsidiaries
are not, and since the date of the most recent financial report of CPV
and its Subsidiaries received by each Lender under SECTION 9.1 thereof
have not been, adversely affected in any substantial way as the result
of any fire, explosion, earthquake, accident, strike, lockout,
combination of workers, flood, embargo, riot, activities of armed
forces, war or acts of God or the public enemy, or cancellation or loss
of any major contracts; and
(d) No event has occurred and no condition exists which, upon
the consummation of the transaction contemplated hereby, constituted a
Default or an Event of Default on the part of the Borrower under the
Agreement or the Notes either immediately or with the lapse of time or
the giving of notice, or both.
4. CONDITIONS. As a condition to the effectiveness of this Amendment
Agreement, the Borrower and CPV shall deliver, or cause to be delivered to the
Agent ten (10) executed counterparts of this Amendment Agreement.
5. OTHER DOCUMENTS. All instruments and documents incident to the
consummation of the transactions contemplated hereby shall be satisfactory in
form and substance to the Agent and its counsel; the Agent shall have received
copies of all additional agreements, instruments and documents which it may
reasonably request in connection therewith, including evidence of the authority
of CPV and the Borrower to enter into the transactions contemplated by this
Amendment Agreement, in each case such documents, when appropriate, to be
certified by appropriate corporate or governmental authorities; and all
proceedings of CPV and the Borrower relating to the matters provided for herein
shall be satisfactory to the Agent and its counsel.
6. ENTIRE AGREEMENT. This Amendment Agreement sets forth the entire
understanding and agreement of the parties hereto in relation to the subject
matter hereof and supersedes any prior negotiations and agreements among the
parties relative to such subject matter. No promise, conditions, representation
or warranty, express or implied, not herein set forth shall bind any party
hereto, and no one of them has relied on any such promise, condition,
representation or warranty. Each of the parties hereto acknowledges that, except
as in this Amendment Agreement or otherwise expressly stated, no
representations, warranties or commitments, express or implied, have been made
by any other party to the other. None of the terms of conditions of this
Amendment Agreement may be changed, modified, waived or
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canceled orally or otherwise, except by writing, signed by all the parties
hereto, specifying such change, modification, waiver or cancellation of such
terms or conditions, or of any proceeding or succeeding breach thereof.
7. FULL FORCE AND EFFECT OF AGREEMENT. Except as hereby specifically
amended, modified or supplemented, the Agreement and all of the other Loan
Documents are hereby confirmed and ratified in all respects and shall remain in
full force and effect according to their respective terms.
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment
agreement to be duly executed by their duly authorized officers, all as of the
day and year first above written.
CPT OPERATING PARTNERSHIP, L.P.
WITNESS:
/s/ Xxxxxxx X. Xxxxxxxx By: Correctional Properties Trust,
------------------------------------ General Partner
/s/ Xxxxxxx X. Xxxxx
------------------------------------
By: /s/ Xxxxxxx X. Xxxxx
--------------------------
Name: Xxxxxxx X. Xxxxx
Title: President & Chief
Executive Officer
CORRECTIONAL PROPERTIES TRUST
WITNESS:
/s/ Xxxxxxx X. Xxxxxxxx By: /s/ Xxxxxxx X. Xxxxx
------------------------------------ ----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President & Chief
/s/ Xxxxxxx X. Xxxxx Executive Officer
------------------------------------
BANK OF AMERICA, N.A., as Agent
By: /s/ Xxxxxx Xxxxxxxxx
----------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Vice President
THE BANK OF NOVA SCOTIA
By: /s/
----------------------------------
Name: Executed (Illegible)
Title: Managing Director
FIRST UNION NATIONAL BANK
By: /s/ Xxxx X. Xxxxxx
----------------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President
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SOUTHTRUST BANK, NATIONAL
ASSOCIATION
By: /s/ D. Xxx Xxxxxxxxx
----------------------------------
Name: D. Xxx Xxxxxxxxx
Title: Group Vice President
SUNTRUST BANK, SOUTH FLORIDA, N.A.
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Assistant Vice President
BANKATLANTIC
By: /s/ Xxx X. Xxxxxx
----------------------------------
Name: Xxx X. Xxxxxx
Title: Senior Vice President
BANK AUSTRIA CREDITANSTALT
CORPORATE FINANCE INC.
By: /s/
----------------------------------
Name: Executed (Illegible)
Title: Executive Vice President
By: /s/ Xxxxxxx X. XxXxxxxx, Xx.
----------------------------------
Name: Xxxxxxx X. XxXxxxxx, Xx.
Title: Vice President
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EXHIBIT H
Compliance Certificate
Bank of America, N.A., as Agent
Xxxxxxxxxxxx Xxxxxx, 00xx Xxxxx
XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Agency Services
Telefacsimile: (000) 000-0000
Bank of America, N.A., as Agent
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: ________________
Telefacsimile: (000) 000-0000
Reference is hereby made to the Credit Agreement dated as of October 2,
1998 (the "Agreement") among CPT Operating Partnership L.P., a Delaware limited
partnership (the "Borrower"), Correctional Properties Trust, a Maryland real
estate investment trust, the Lenders (as defined in the Agreement) and Bank of
America, N.A., as Agent for the Lenders ("Agent"). Capitalized terms used but
not otherwise defined herein shall have the respective meanings therefor set
forth in the Agreement. The undersigned, a duly authorized and acting Authorized
Representative, hereby certifies to you as of __________ (the "Determination
Date") as follows:
1. Calculations:
A. Compliance with 10.1(a): Consolidated Net Worth
1. Issued and outstanding share capital $______________
2. Additional paid-in capital plus retained
income (retained deficit to be expressed
as a negative) $______________
3. Amount of foreign currency translation
adjustment (any negative adjustment
to be expressed as a negative) $______________
4. Amount of Treasury Stock $______________
5. Consolidated Shareholders' Equity
(A.1 + A.2 + A.3 - A.4) $______________
6. Reserves (other than contingency reserves
not allocated to any particular purpose) $______________
7. A.5 minus A.6 $______________
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Required:
(i) $__________; plus $______________
(ii) 85% of increases in stated
capital and paid-in capital from
the issuance of equity securities
or other capital investments
during prior Fiscal Quarter; $______________
Total Requirement $______________
B. Compliance with Section 10.1(b): Consolidated Interest
Coverage Ratio
1. Consolidated Adjusted EBITDA
for most recent four Fiscal Quarters*
(i) Consolidated Net Income, plus $______________
(ii) Consolidated Interest Expense, plus $______________
(iii) taxes on income, plus $______________
(iv) amortization, plus $______________
(v) depreciation, minus $______________
(vi) amount of actual cash expenditures
for maintenance-related Capital
Expenditures $______________
Total $______________
2. Consolidated Interest Expense $______________
3. Ratio of Consolidated Adjusted
EBITDA (B.1) to Consolidated Interest
Expense (B.2) ____ to 1.00
REQUIRED: NOT LESS THAN 3.00 TO 1.00.
* See Schedules I and II for calculation of
Consolidated Adjusted EBITDA and Annualized
EBITDA, if applicable, for any Qualifying Property.
C. Compliance with Section 10.1(c)(i): Ratio of Consolidated Total
Indebtedness to Consolidated Total Value
1. Consolidated Total Indebtedness less amount
of Non-Recourse Indebtedness of Unrestricted
Subsidiaries ($__________) $______________
2. Consolidated Total Value (Lesser of Historical
Cost and Appraised Value of all Pledged
Properties in the Pledge Pool) $______________
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3. Ratio of Consolidated Total Indebtedness (C.1)
to Consolidated Total Value (C.2) ____ to 1.00
REQUIRED: NOT GREATER THAN .50 TO 1.00.
D. Compliance with Section 10.1(c)(ii): Consolidated Total
Indebtedness
1. Consolidated Total Indebtedness less
amount of Non-Recourse Indebtedness
of Unrestricted Subsidiaries ($_________) $______________
2. Consolidated Adjusted EBITDA (see B.1) X 4.0 $______________
3. Historical Cost of Pledged Properties and
other Qualifying Properties X 50% $______________
REQUIRED: CONSOLIDATED TOTAL INDEBTEDNESS
(LESS AMOUNT OF NON-RECOURSE INDEBTEDNESS
OF UNRESTRICTED SUBSIDIARIES) NOT TO EXCEED
LESSER OF 4.0 TIMES CONSOLIDATED ADJUSTED
EBITDA OR 50% OF HISTORICAL COST
E. Compliance with Section 10.1(c)(iii): Consolidated Total
Indebtedness
1. Consolidated Total Indebtedness: $_____________
2. Consolidated Total Liabilities $_____________
3. Consolidated Shareholders' Equity $_____________
4. (E.2 plus E.3) X 50% $_____________
REQUIRED: CONSOLIDATED TOTAL INDEBTEDNESS
(E.1) MAY NOT EXCEED E.4
F. Compliance with Section 10.1(d): Consolidated Secured Indebtedness
to Consolidated Total Value
1. Consolidated Secured Indebtedness
less amount of Non-Recourse
Indebtedness of Unrestricted
Subsidiaries ($__________) $_____________
2. Consolidated Total Value (See C.2) $_____________
3. Ratio of Consolidated Secured
Indebtedness (F.1) to Consolidated
Total Value (F.2) ____ to 1.00
REQUIRED: NOT GREATER THAN .45 TO 1.00
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G. Borrowing Base
See attached Borrowing Base Certificate
H. Compliance with Section 10.5(f): Purchase Money Indebtedness
1. Purchase Money Indebtedness: $_____________
REQUIRED: NOT GREATER THAN $1,000,000
I. Compliance with Section 10.5(g): Additional Non-Recourse
Indebtedness
1. Additional Non-Recourse Indebtedness: $_____________
2. Consolidated Total Value (See C.2) X 20% $_____________
REQUIRED: ADDITIONAL NON-RECOURSE
INDEBTEDNESS (I.1) MAY NOT EXCEED 20%
OF CONSOLIDATED TOTAL VALUE (I.2)
J. Compliance with Section 10.5(h): Additional unsecured Indebtedness
for Money Borrowed
1. Additional Unsecured Indebtedness
for Money Borrowed: $_____________
REQUIRED: NOT GREATER THAN $1,000,000
K. Compliance with Sections 10.7(e): Investments
1. Principal amount of Non-conforming
Investments: $_____________
2. Loans and investments in
Unrestricted Subsidiaries: $_____________
3. Total $_____________
4. Consolidated Total Value
(See C.2) X 5% $_____________
REQUIRED:
NON-CONFORMING INVESTMENTS AND LOANS
AND INVESTMENTS IN UNRESTRICTED
SUBSIDIARIES (K.3) MAY NOT EXCEED 5%
OF CONSOLIDATED TOTAL VALUE (K.4).
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L. Compliance with Section 10.9: Restricted Payments
1. Restricted Payments permitted under
Section 10.9 during most recently ended
Fiscal Year (or during Fiscal Year 1998
since the Closing Date): $_____________
2. Cash Available for Distribution $_____________
3. Funds from Operations X 95% $_____________
4. Lesser of E.2 and E.3 $_____________
REQUIRED: RESTRICTED PAYMENTS (L.1) MAY
NOT EXCEED L.4
No Default
1. Since __________ (the date of the last similar certification),
(a) the Borrower has not defaulted in the keeping, observance,
performance or fulfillment of its obligations pursuant to any
of the Loan Documents; and (b) no Default or Event of Default
specified in Article XI of the Agreement has occurred and is
continuing.
2. If a Default or Event of Default has occurred since __________
(the date of the last similar certification), the Borrower
proposes to take the following action with respect to such
Default or Event of Default:
(Note, if no Default or Event of Default has occurred, insert
"Not Applicable").
The Determination Date is the date of the last required financial statements
submitted to the Lenders in accordance with Section 9.1 of the Agreement.
IN WITNESS WHEREOF, I have executed this Certificate this _____ day
of __________, _____.
CPT OPERATING PARTNERSHIP L.P.
By:
---------------------------------
Authorized Representative
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SCHEDULE I TO COMPLIANCE CERTIFICATE
CONSOLIDATED ADJUSTED EBITDA
1. Quarterly Consolidated Adjusted EBITDA:
(Including only properties operational for entire Four-Quarter period)
Q1 Q2 Q3 Q4 ROLLING 4Q
-- -- -- -- ----------
A. Consolidated Net Income
(from financial statements) $ xx $ xx $ xx $ xx $ xx
B. Less: Net Gains or other
extraord. defined in
Credit Agreement xx xx xx xx xx
C. Plus: Consolidated Interest Exp. xx xx xx xx xx
D. Taxes on Income xx xx xx xx xx
E. Amortization xx xx xx xx xx
F. Depreciation XX XX XX XX XX
----------- -------- --------- --------- -----------
G. Consolidated EBITDA xx xx xx xx xx
H. Maintenance Capital Expend. XX XX XX XX XX
----------- -------- --------- --------- -----------
I. Consolidated Adjust EBITDA (G - H) $
----------
J. EBITDA of Unrestricted Subsidiaries $
----------
K. Annualized EBITDA (from Schedule 2 H-7) $
----------
L. Consolidated Adjusted EBITDA (I - J + K) $
----------
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SCHEDULE II
ANNUALIZED EBITDA
Annualized EBITDA for Qualifying Properties not operational for entire
four-quarter period.
PROP 1 PROP 2 PROP 3 PROP 4 Total
------ ------ ------ ------ -----
A. Net Income
B. Interest Expense
C. Taxes on Income
D. Amortization
E. Depreciation
F. EBITDA
G. Time Operational
H. Applicable Multiple*
I. Annualized EBITDA (F. X H.) ______ ______ ______ ______ $_____
*The following are the applicable multiples:
Time Operational Multiple
---------------- --------
Less than one quarter N/A**
one quarter 4
two quarters 2
three quarters 4/3
**If the property meets the requirements of the Credit Agreement, Annualized
EBITDA will be based on pro forma project results of operations for a period
of four quarters prepared by the Borrower.
