SEVENTH AMENDMENT AND LIMITED WAIVER TO THIRD AMENDED AND
RESTATED CREDIT AGREEMENT
DATED AS OF MARCH 8, 2005
This SEVENTH AMENDMENT AND LIMITED WAIVER TO THIRD AMENDED AND RESTATED
CREDIT AGREEMENT (together with all Exhibits, Schedules and Annexes hereto, this
"Amendment") is among CORRECTIONS CORPORATION OF AMERICA, a Maryland corporation
(the "Borrower"), the Lenders (as defined below) and XXXXXX COMMERCIAL PAPER
INC., as administrative agent for the Lenders (in such capacity, the
"Administrative Agent").
PRELIMINARY STATEMENTS:
A. The Borrower, the lenders party thereto (the "Lenders"), the
Administrative Agent, Xxxxxx Brothers Inc., as lead arranger and sole
book-running manager, Deutsche Bank Securities Inc. and UBS Warburg LLC, as
co-syndication agents, and Societe Generale, as documentation agent, have
entered into a Third Amended and Restated Credit Agreement, dated as of May 3,
2002 (together with all Annexes, Exhibits and Schedules thereto and as amended,
modified or supplemented from time to time, the "Credit Agreement"; capitalized
terms used and not otherwise defined herein shall have the meanings ascribed to
such terms in the Credit Agreement; terms defined in Section 1 hereof are used
herein as defined therein); and
B. The Borrower desires to amend the Credit Agreement to permit the
incurrence of additional unsecured Indebtedness to be used for the purpose of
purchasing Senior Notes, prepaying a portion of the Tranche D Term Loans and
paying premiums, fees, costs and expenses incurred in connection therewith or
relating thereto, and the Required Lenders have agreed to amend the Credit
Agreement to permit the incurrence of such Indebtedness, the purchase of such
Senior Notes and certain related matters upon the terms and conditions set forth
herein.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. LIMITED WAIVER TO CREDIT AGREEMENT TO BE EFFECTIVE ON THE SEVENTH AMENDMENT
EFFECTIVE DATE. The Lenders hereby waive any noncompliance with the provisions
of Section 7.9(a) of the Credit Agreement (and any corresponding Default or
Event of Default) that may occur solely as a result of the Borrower's offer to
purchase the Senior Notes.
2. AMENDMENTS TO CREDIT AGREEMENT TO BE EFFECTIVE ON THE SEVENTH AMENDMENT
EFFECTIVE DATE.
(a) Section 1.1 of the Credit Agreement is hereby amended by inserting the
following definitions in the appropriate alphabetical position:
"2005 Note Purchase Agreement": the Note Purchase Agreement, dated
[______], 2005, among the Borrower, certain Subsidiaries of the Borrower,
Xxxxxx Brothers Inc. and the other initial purchasers of the 2005 Senior
Notes.(1)
"2005 Registration Rights Agreement": the Registration Rights
Agreement, dated [______], 2005, among the Borrower, certain Subsidiaries
of the Borrower, Xxxxxx Brothers Inc. and the other initial purchasers of
the 2005 Senior Notes.
"2005 Senior Note Documentation": the 2005 Senior Note Indenture,
the 2005 Senior Note Purchase Agreement and the 2005 Registration Rights
Agreement, together with any other instruments and agreements entered into
by the Borrower or its Subsidiaries in connection therewith, as the same
may be amended, supplemented, replaced or otherwise modified from time to
time in accordance with this Agreement.
"2005 Senior Note Indenture": the Indenture, dated as of [_______],
2005, entered into by the Borrower, certain of its Subsidiaries and U.S.
Bank National Association, as Trustee, in connection with the issuance of
the 2005 Senior Notes, as the same may be amended, supplemented, replaced
or otherwise modified from time to time in accordance with this Agreement.
"2005 Senior Notes": the unsecured notes of the Borrower due 2013
issued from time to time pursuant to the 2005 Senior Note Indenture,
including the registered notes issued under the Indenture pursuant to the
2005 Registration Rights Agreement.
(b) The definition of "Material Debt Instruments" in Section 1.1 of the
Credit Agreement is hereby amended and restated in its entirety as follows:
"Material Debt Instruments": collectively, the Senior Notes
Indenture, the PMI Note Purchase Agreement, the MDP Note Purchase
Agreement, the Existing 12% Senior Note Indenture, the documentation
governing any Qualified Trust Indebtedness or Indebtedness incurred under
Sections 7.2(h) or (i), the 2Q 2003 Senior Note Documentation, the 3Q 2003
Senior Note Documentation and the 2005 Senior Note Documentation, as the
same may be amended, supplemented replaced as otherwise modified from time
to time in accordance with this Agreement.
(c) Section 7.2 of the Credit Agreement is hereby amended by (1) deleting
the word "and" at the end of paragraph (q), (2) deleting the period at the end
of paragraph (r) and inserting "; and" in lieu thereof and (3) inserting the
following new paragraph (s) at the end thereof:
-------------------
(1) Each of the parties hereto hereby agrees that on the Seventh Amendment
Effective Date the Administrative Agent may and shall complete the
definitions of "2005 Note Purchase Agreement," "2005 Registration Rights
Agreement," "2005 Senior Note Indenture" and "2005 Senior Notes," as
appropriate.
2
(s) (i) Unsecured Indebtedness of the Borrower created under the
2005 Senior Note Indenture in respect of the 2005 Senior Notes in an
aggregate principal amount not to exceed $400,000,000; provided that (y)
the proceeds of such Indebtedness are used on or promptly following the
date of the issuance thereof to (A) purchase Senior Notes, (B) prepay the
Tranche D Term Loans in an amount greater than or equal to $50,000,000 and
(C) pay premiums, fees, costs and expenses incurred in connection with the
purchase of Senior Notes, the amendment of the Senior Note Indenture and
the issuance and sale of the 2005 Senior Notes and (z) no Default or Event
of Default exists and is continuing at the time of issuance thereof (both
before and after giving effect thereto), (ii) any Indebtedness refunding
or refinancing the 2005 Senior Notes; provided that (w) such Indebtedness
is in an aggregate principal amount not greater than the aggregate
principal amount of the Indebtedness being refunded or refinanced plus the
amount of any premiums, fees, costs and expenses incurred in connection
with such refunding or refinancing, (x) such Indebtedness has a later or
equal final maturity and longer or equal weighted average life to maturity
than the Indebtedness being refunded or refinanced, (y) the covenants,
events of default, subordination and other provisions of such Indebtedness
(including any guarantees thereof) shall be, in the aggregate, no less
favorable to the Lenders than those governing the Indebtedness being
refunded or refinanced and (z) no Default or Event of Default exists and
is continuing at the time of issuance thereof (both before and after
giving effect thereto) and (iii) Guarantee Obligations of any Subsidiary
Guarantor in respect of Indebtedness permitted under clauses (i) and (ii)
of this Section 7.2(s);
(d) Section 7.9(a) of the Credit Agreement is hereby amended by (1)
deleting the word "and" at the end of clause (i) thereof, (2) inserting the word
"and" immediately after the word "refinanced" at the end of clause (ii) thereof
and (3) inserting the following new clause (iii) immediately prior to the
semicolon at the end thereof:
(iii) purchase Senior Notes with Indebtedness permitted under
Section 7.2(s)
(e) Section 7.9(b) of the Credit Agreement is hereby amended by inserting
the following proviso immediately prior to the comma at the end thereof:
; provided, that the Borrower and its Subsidiaries shall be
permitted to amend, modify or change, or consent or agree to amendments,
modifications or changes of, the Senior Note Indenture to eliminate events
of default other than payment defaults and to eliminate substantially all
of the covenants set forth therein, and in connection therewith to make
payments to holders of Senior Notes in an amount not to exceed $30 for
each $1,000 principal amount of Senior Notes
3. CONDITIONS TO EFFECTIVENESS.
The effectiveness of the limited waiver contained in Section 1 and the
amendments contained in Section 2 of this Amendment are conditioned upon
satisfaction of the following conditions (the date on which all such conditions
have been satisfied being referred to herein as the "Seventh Amendment Effective
Date"):
3
(a) the Administrative Agent shall have received signed written
authorization from the requisite Lenders to execute this Amendment on behalf of
such Lenders, and shall have received counterparts of this Amendment signed by
the Borrower, and counterparts of the consent of the Subsidiary Guarantors
attached hereto as Annex 1 (the "Consent") executed by each of the Subsidiary
Guarantors;
(b) each of the representations and warranties in Section 4 below shall be
true and correct in all material respects on and as of the Seventh Amendment
Effective Date;
(c) the Administrative Agent shall have received payment in immediately
available funds of all expenses incurred by the Administrative Agent (including,
without limitation, legal fees) for which invoices have been presented on or
before the Seventh Amendment Effective Date; and
(d) the Administrative Agent shall have received such other documents,
instruments, certificates, opinions and approvals as it may reasonably request.
4. REPRESENTATIONS AND WARRANTIES.
The Borrower represents and warrants to the Administrative Agent and the
Lenders as follows:
(a) Authority. The Borrower has the requisite corporate power and
authority to execute and deliver this Amendment and to perform its obligations
hereunder and under the Credit Agreement (as modified hereby). Each of the
Subsidiary Guarantors has the requisite corporate or other organizational power
and authority to execute and deliver the Consent. The execution, delivery and
performance (i) by the Borrower of this Amendment and the Credit Agreement (as
modified hereby) and the transactions contemplated hereby and thereby and (ii)
by the Subsidiary Guarantors of the Consent, in each case, have been duly
approved by all necessary corporate or other action of such Person, and no other
corporate or other organizational proceedings on the part of each such Person
are necessary to consummate such transactions.
(b) Enforceability. This Amendment has been duly executed and delivered by
the Borrower. The Consent has been duly executed and delivered by each of the
Subsidiary Guarantors. Each of this Amendment and the Consent and, after giving
effect to this Amendment, the Credit Agreement and the other Loan Documents (i)
is the legal, valid and binding obligation of each Loan Party party hereto and
thereto, enforceable against such Loan Party in accordance with its terms,
except as may be limited by laws relating to the enforcement of creditors'
rights and general equitable principles (whether enforcement is sought by
proceedings in equity or at law) and (ii) is in full force and effect. Neither
the execution, delivery or performance of this Amendment, of the Consent or of
the Credit Agreement (as modified hereby), nor the performance of the
transactions contemplated hereby or thereby, will adversely affect the validity,
perfection or priority of the Administrative Agent's Lien on any of the
Collateral or its ability to realize thereon.
(c) Representations and Warranties. After giving effect to this Amendment,
the representations and warranties contained in the Credit Agreement and the
other Loan Documents (other than any such representations and warranties that,
by their terms, are specifically made as of
4
a date other than the date hereof) are true and correct in all material respects
on and as of the date hereof as though made on and as of the date hereof.
(d) No Conflicts. Neither the execution and delivery of this Amendment,
the Consent or the Credit Agreement (as modified hereby), nor the consummation
of the transactions contemplated hereby and thereby, nor the performance of and
compliance with the terms and provisions hereof or thereof by any Loan Party
will, at the time of such performance, (a) violate or conflict with any
provision of its articles or certificate of incorporation or bylaws or other
organizational or governing documents of such Person, (b) violate, contravene or
materially conflict with any Requirement of Law or any other law, regulation
(including, without limitation, Regulation U or Regulation X), order, writ,
judgment, injunction, decree or permit applicable to it, except for any
violation, contravention or conflict which could not reasonably be expected to
have a Material Adverse Effect, (c) (i) violate, contravene or conflict with the
contractual provisions of, or cause an event of default under, any Loan Document
or (ii) violate, contravene or conflict with the contractual provisions of, or
cause an event of default under, any other loan agreement, indenture, mortgage,
deed of trust, contract or other agreement or instrument to which it is a party
or by which it may be bound or (d) result in or require the creation of any Lien
(other than those contemplated in or created in connection with the Loan
Documents) upon or with respect to its properties. No consent or authorization
of, filing with, notice to or other act by or in respect of, any Governmental
Authority or any other Person is required in connection with the transactions
contemplated hereby.
(e) No Default. Both before and after giving effect to this Amendment and
the transactions contemplated hereby, no event has occurred and is continuing
that constitutes a Default or Event of Default.
5. REFERENCE TO AND EFFECT ON CREDIT AGREEMENT.
(a) Upon and after the effectiveness of this Amendment, each reference in
the Credit Agreement to "this Agreement", "hereunder", "hereof" or words of like
import referring to the Credit Agreement, and each reference in the other Loan
Documents to "the Credit Agreement", "thereunder", "thereof" or words of like
import referring to the Credit Agreement, shall mean and be a reference to the
Credit Agreement as modified hereby. This Amendment is a Loan Document.
(b) Except as specifically modified above, the Credit Agreement and the
other Loan Documents are and shall continue to be in full force and effect and
are hereby in all respects ratified and confirmed. Without limiting the
generality of the foregoing, the Security Documents and all of the Collateral
described therein do and shall continue to secure the payment of all Obligations
under and as defined therein, in each case as modified hereby.
(c) The execution, delivery and effectiveness of this Amendment shall not,
except as expressly provided herein, operate as a waiver of any right, power or
remedy of any Secured Party under any of the Loan Documents, nor, except as
expressly provided herein, constitute a waiver or amendment of any provision of
any of the Loan Documents.
6. COUNTERPARTS.
5
This Amendment may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. Delivery of an executed
counterpart of a signature page to this Amendment by facsimile shall be
effective as delivery of a manually executed counterpart of this Amendment.
7. SEVERABILITY.
Any provision of this Amendment that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
8. GOVERNING LAW.
This Amendment shall be governed by, and construed in accordance with, the
laws of the State of New York.
[Signature page follows]
6
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized, as of the date
first written above.
CORRECTIONS CORPORATION OF AMERICA,
as Borrower
By: /s/ Xxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: President and Chief Executive
Officer
XXXXXX COMMERCIAL PAPER INC.,
as Administrative Agent and on behalf of the
Required Lenders
By: /s/ Xxxxx Xxxxxx
------------------------------------------
Name: Xxxxx Xxxxxx
Title: Authorized Signatory
[signatures continued next page]
Annex 1
CONSENT OF SUBSIDIARY GUARANTORS
Each of the undersigned is a Subsidiary Guarantor of the Obligations of
the Borrower under the Credit Agreement and hereby (a) consents to the foregoing
Amendment, (b) acknowledges that notwithstanding the execution and delivery of
the foregoing Amendment, the obligations of each of the undersigned Subsidiary
Guarantors are not impaired or affected and all guaranties given to the holders
of Obligations and all Liens granted as security for the Obligations continue in
full force and effect, and (c) confirms and ratifies its obligations under the
Guarantee and Security Agreement and each other Loan Document executed by it.
Capitalized terms used herein without definition shall have the meanings given
to such terms in the Amendment to which this Consent is attached or in the
Credit Agreement referred to therein, as applicable. This Consent shall be
governed by, and construed in accordance with, the laws of the State of New
York.
[Signature page follows]
IN WITNESS WHEREOF, each of the undersigned has executed and delivered
this Consent of Subsidiary Guarantors as of March 8, 2005.
CCA OF TENNESSEE, LLC
PRISON REALTY MANAGEMENT, INC.
TECHNICAL AND BUSINESS INSTITUTE OF
AMERICA, INC.
CCA INTERNATIONAL, INC.
CCA PROPERTIES OF AMERICA, LLC
CCA PROPERTIES OF ARIZONA, LLC
CCA PROPERTIES OF TENNESSEE, LLC
CCA WESTERN PROPERTIES, INC.
By /s/ Xxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Chief Executive Officer
CCA PROPERTIES OF TEXAS, L.P.
By /s/ Xxxx X. Xxxxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Chief Executive Officer, CCA
Properties of America, LLC, as
General Partner
TRANSCOR AMERICA LLC
By /s/ Xxxx X. Xxxxxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Vice President, Treasurer
