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EXHIBIT 10.1
AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDMENT AND RESTATEMENT of the Credit Agreement referred to
below (this "Amended and Restated Credit Agreement"), is made and entered into
as of this 24th day of June, 1998 by and among CORRECTIONS CORPORATION OF
AMERICA, a corporation organized under the laws of Tennessee (the "Borrower"),
the Subsidiaries of the Borrower identified on the signature pages hereto
(collectively, the "Guarantors"), the Lenders (including certain of the Existing
Lenders, as defined below) who are or may become party to this Amended and
Restated Credit Agreement (the "Lenders"), FIRST UNION NATIONAL BANK, as the
administrative agent (the "Administrative Agent") for the Lenders, CANADIAN
IMPERIAL BANK OF COMMERCE, as documentation agent (the "Documentation Agent")
and NATIONSBANK, N.A., as syndication agent (the "Syndication Agent").
Statement of Purpose
Pursuant to the Credit Agreement dated as of September 6, 1996 (as
amended by the Amendment and Waiver dated as of July 18, 1997, and as further
amended, restated or otherwise modified prior to the date hereof the "Credit
Agreement"), by and among the Borrower, the lenders party thereto (the "Existing
Lenders") and the Administrative Agent, the Existing Lenders have extended
certain credit facilities to the Borrower pursuant to the terms thereof.
The Borrower has requested that the Lenders (including certain of the
Existing Lenders) enter into this Amended and Restated Credit Agreement for the
purpose of (a) increasing the Aggregate Commitment (as defined in the Credit
Agreement) from $170 million to $350 million and (b) further amending and
restating the Credit Agreement on the terms and conditions set forth more fully
below.
Pursuant to the terms hereof, the Lenders have agreed to enter into
this Amended and Restated Credit Agreement.
NOW THEREFORE, for good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the parties hereto agree as follows:
SECTION 1. Definitions. All capitalized undefined terms used in this
Amended and Restated Credit Agreement shall have the meanings assigned thereto
in the Credit Agreement.
SECTION 2. Amendments to the Credit Agreement.
(a) The preamble and recitals of the Credit Agreement are hereby
deleted in their entirety and replaced with the preamble and statement of
Purpose of this Amended and Restated Credit Agreement.
(b) Section 1.1 of the Credit Agreement is hereby amended by deleting
the following definitions in their entirety and substituting the following in
lieu thereof:
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"Aggregate Commitment" means the aggregate amount of the
Lenders' Commitments hereunder, as such amount may be reduced or modified at any
time or from time to time pursuant to Section 2.6. On the Effective Date, the
Aggregate Commitment shall be Three Hundred and Fifty Million Dollars
($350,000,000).
"Agreement" means the Amended and Restated Credit Agreement.
"Amended and Restated Credit Agreement" means the Credit
Agreement as amended and restated on the Effective Date.
"L/C Commitment" means the lesser of (a) Two Hundred
Twenty-Five Million Dollars ($225,000,000) and (b) the Aggregate Commitment.
"L/C Obligations" means at any time, the Dollar Amount equal
to the sum of (a) the aggregate undrawn and unexpired amount of the then
outstanding Letters of Credit and (b) the aggregate amount of drawings under
Letters of Credit which have not then been reimbursed pursuant to Section 3.5.
"Letters of Credit" shall mean the collective reference to
Dollar Letters of Credit and Alternative Currency Letters of Credit or either
such Letters of Credit, as applicable.
"Issuing Lender" means, (a) with regard to any Dollar Letter
of Credit, First Union and (b) with regard to any Alternative Currency Letter of
Credit, the Administrative Agent's Correspondent, each in its capacity as issuer
of any such Dollar Letter of Credit, or Alternative Letter of Credit, as
applicable, or any successor thereto.
(c) Section 1.1 of the Credit Agreement is hereby amended by inserting
the following definitions in correct alphabetical order:
"Administrative Agent's Correspondent" means First Union
National Bank, London Branch, or any other financial institution designated by
the Administrative Agent to act as its correspondent hereunder with respect to
the distribution and payment of Alternative Currency Letters of Credit.
"Agecroft Prison Transaction" means the collective reference
to the transactions set forth of Schedule 1.1(b) hereto, including, without
limitation, the formation and capitalization of Agecroft Properties, Inc.
"Agecroft Prison" means the correctional facility to be
constructed pursuant to the Agecroft Prison Transaction.
"Agecroft Prison Spin-off" means the planned sale of (i) all
of the issued and outstanding capital stock of Agecroft Properties, Inc. and
(ii) the note evidencing the loan by the Borrower to Agecroft Properties, Inc.
to CCA Prison Realty Trust upon the completion of the construction of Agecroft
Prison, as contemplated in the Agecroft Prison Transaction.
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"Agecroft Properties, Inc." means the Wholly-Owned Subsidiary
of the Borrower to be formed and capitalized pursuant to the Agecroft Prison
Transaction.
"Alternative Currency" means Pounds Sterling, and, with the
prior written consent of the Administrative Agent and the Required Lenders
(which consent shall be deemed given for the Letter of Credit issued to First
National Bank of Southern Africa by First Union National Bank (the "South Africa
L/C") on April 2, 1998 denominated in South Africa Rand in the Dollar Amount of
$1,787,400 as of the date of issuance), any other lawful currency (other than
Dollars) which is freely transferable and convertible into Dollars in the United
States currency market and freely available to all of the Lenders in the London
interbank deposit market.
"Alternative Currency L/C Commitment" means the lesser of (a)
One Hundred Twenty Five Million Dollars ($125,000,000) and (b) the L/C
Commitment.
"Alternative Currency Letters of Credit" shall have the
meaning assigned thereto in Section 3.1 and shall include the South Africa L/C.
Each of the parties hereto hereby agree that the South Africa L/C shall be
deemed to be an Alternative Currency Letter of Credit issued hereunder.
"Dollar Amount" shall mean (i) with regard to any Obligation
denominated in Dollars, the amount thereof and (ii) with regard to any
Obligation denominated in an Alternative Currency, the amount of Dollars which
is equivalent to the amount so expressed in an Alternative Currency at the most
favorable spot exchange rate determined by the Administrative Agent to be
available to it at the relevant time.
"Dollar Letters of Credit" shall have the meaning assigned
thereto in Section 3.1.
"Effective Date" shall have the meaning given thereto in the
Amended and Restated Credit Agreement dated as of June 24, 1998, by and among
the Borrower, the Lender, the Administrative Agent, the Documentation Agent and
the Syndication Agent.
"Notice of Account Designation" shall mean the most recent
notice substantially in the form of Exhibit J hereto (a "Notice of Account
Designation") delivered by the Borrower to the Administrative Agent.
(d) Schedule 1.1 is hereby deleted in its entirety and Schedule 1.1
attached hereto shall be substituted in lieu thereof.
(e) Section 1.3 is hereby amended by inserting the following as a new
clause (c) at the end of such Section 1.3:
"(c) Any reference or usage of the word "amount" herein as it
pertains to any Obligation denominated in an Alternative
Currency shall be deemed to be a reference or usage of the
term "Dollar Amount."
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(f) Section 2.3(a) is hereby amended by deleting the number
"$2,500,000" in the twelfth line thereof and substituting the number
"$5,000,000" in lieu thereof.
(g) Section 2.4(b) is hereby amended by (i) inserting "(i)" immediately
following the title of such Section 2.4(b), (ii) inserting the phrase "for any
reason, including without limitation currency fluctuations" immediately after
the phrase "exceeds the Aggregate Commitment" in line three thereof and (iii) by
inserting the following text at the end of Section 2.4(b):
"(ii) Excess Alternative Currency Letters of Credit. If at any
time and for any reason the outstanding principal Dollar
Amount of all outstanding Alternative Currency Letters of
Credit exceeds the lesser of (A) the L/C Commitment less the
sum of the outstanding principal amount of all L/C Obligations
and (B) the Alternative Currency L/C Commitment, then the
Borrower shall deposit an amount in Dollars equal to such
excess with the Administrative Agent to be held as cash
collateral in accordance with Section 11.2(b)."
(h) Section 2.4 is hereby amended by adding the following clause
(e) at the end of such Section:
"(e) Mandatory Repayment of Proceeds of the Agecroft Prison
Spin-off. Within ten (10) Business Days after the consummation
of the Agecroft Prison Spin-off, the Borrower shall pay to the
Administrative Agent for the account of the Lenders, one
hundred percent (100%) of the Net Cash Proceeds received from
such transaction. Such repayment shall be applied to reduce
the outstanding principal amount of the Revolving Credit
Loans, and shall be accompanied by any amount required to be
paid pursuant to Section 4.9 hereof."
(i) Section 2.7 is amended by inserting the following text at the
end of such Section 2.7:
"Notwithstanding any of the foregoing to the contrary, the
Credit Facility shall automatically terminate, and all
Obligations shall become immediately due and payable, upon the
closing of the proposed merger of the Borrower with CCA Prison
Realty Trust or any of its Subsidiaries."
(j) Section 3.1 is hereby deleted in its entirety and the
following Section 3.1 substituted in lieu thereof:
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"SECTION 3.1. L/C Commitment. Subject to the terms
and conditions hereof, the Issuing Lender, in reliance on the
agreements of the other Lenders set forth in Section 3.4(a),
agrees to issue standby or direct pay letters of credit
denominated in Dollars ("Dollar Letters of Credit") for the
account of the Borrower on any Business Day from the Closing
Date through but not including the Revolving Termination Date
or denominated in any Alternative Currency, as applicable,
("Alternative Currency Letters of Credit") for the account of
the Borrower on any Business Day from the Effective Date
through but not including the Revolving Termination Date, in
each case in such form as may be approved from time to time by
the Issuing Lender; provided, that the Issuing Lender shall
have no obligation to issue any Letter of Credit if, after
giving effect to such issuance, (a) the L/C Obligations would
exceed the L/C Commitment, (b) the L/C Obligations on account
of Alternative Currency Letters of Credit would exceed the
Alternative Currency L/C Commitment or (c) the Available
Commitment of any Lender would be less than zero. Each Letter
of Credit (i) that is a Dollar Letter of Credit shall be
denominated in Dollars in a minimum amount of $1,000,000, (ii)
that is an Alternative Currency Letter of Credit shall be
denominated in an Alternative Currency in a minimum Dollar
Amount of $1,000,000, (iii) be a standby or direct pay letter
of credit issued to support obligations of the Borrower or any
of its Subsidiaries, contingent or otherwise, incurred in the
ordinary course of business (including without limitation in
support of obligations in connection with Project Related
Debt) (iv) expire on a date satisfactory to the Issuing
Lender, which date shall be no later than the Revolving
Termination Date and (v) be subject to the Uniform Customs
and, to the extent not inconsistent therewith, the laws of the
State of North Carolina. The Issuing Lender shall not at any
time be obligated to issue any Letter of Credit hereunder if
such issuance would conflict with, or cause the Issuing Lender
or any L/C Participant to exceed any limits imposed by, any
Applicable Law. References herein to "issue" and derivations
thereof with respect to Letters of Credit shall also include
extensions or modifications of any existing Letters of Credit,
unless the context otherwise requires."
(k) Section 3.2 is hereby deleted in its entirety and the
following Section 3.2 substituted in lieu thereof:
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"SECTION 3.2. Procedure for Issuance of Letters of
Credit. The Borrower may from time to time request that the
Issuing Lender issue a Letter of Credit by delivering to the
Issuing Lender at the Administrative Agent's Office, or the
office of the Administrative Agent's Correspondent, as
applicable, an Application therefor, completed to the
satisfaction of the Issuing Lender, and such other
certificates, documents and other papers and information as
the Issuing Lender may request. Upon receipt of any
Application, the Issuing Lender shall process such Application
and the certificates, documents and other papers and
information delivered to it in connection therewith in
accordance with its customary procedures and shall, subject to
Section 3.1 and Article V hereof, promptly issue the Letter of
Credit requested thereby (but in no event shall the Issuing
Lender be required to issue any Letter of Credit earlier than
three Business Days after its receipt of the Application
therefor and all such other certificates, documents and other
papers and information relating thereto) by issuing the
original of such Letter of Credit to the beneficiary thereof
or as otherwise may be agreed by the Issuing Lender and the
Borrower. The Issuing Lender shall furnish to the Borrower a
copy of such Letter of Credit and furnish to each Lender a
copy of such Letter of Credit and the amount of each Lender's
participation therein pursuant to Section 3.4(a), all promptly
following the issuance of such Letter of Credit."
(l) Section 3.4(a) is hereby deleted in its entirety and the
following Section 3.4(a) substituted in lieu thereof:
"SECTION 3.4. L/C Participations.
(a) The Issuing Lender irrevocably agrees to grant
and hereby grants to each L/C Participant, and, to induce the
Issuing Lender to issue Letters of Credit hereunder, each L/C
Participant irrevocably agrees to accept and purchase and
hereby accepts and purchases from the Issuing Lender, on the
terms and conditions hereinafter stated, for such L/C
Participant's own account and risk an undivided interest equal
to such L/C Participant's Commitment Percentage in the Issuing
Lender's obligations and rights under each Letter of Credit
issued hereunder and the Dollar Amount of each draft paid by
the Issuing Lender thereunder. Each L/C Participant
unconditionally and irrevocably agrees with the Issuing Lender
that, if a draft is paid under any Letter of Credit for which
the Issuing Lender is not reimbursed in full by the Borrower
in accordance with the terms of this Agreement, such L/C
Participant shall pay to the Issuing Lender upon demand at the
Issuing Lender's address for notices specified herein an
amount equal to such L/C Participant's Commitment Percentage
of the Dollar Amount of such draft in Dollars or an
Alternative Currency, as applicable, or any part thereof,
which is not so reimbursed and such payments shall thereafter
be reflected as Extensions of Credit of the Lenders on the
books and records of the Administrative Agent."
(m) Section 3.5 is hereby deleted in its entirety and the
following Section 3.5 substituted in lieu thereof:
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"SECTION 3.5. Reimbursement Obligation of the
Borrower. The Borrower agrees to reimburse the Issuing Lender
on each date on which the Issuing Lender notifies the Borrower
of the date and amount or Dollar Amount, as applicable, of a
draft paid under any Letter of Credit for the amount or Dollar
Amount, as applicable, of (a) such draft so paid and (b) any
taxes, fees, charges or other costs or expenses incurred by
the Issuing Lender in connection with such payment. Each such
payment shall be made to the Issuing Lender at its address for
notices specified herein in Dollars or the applicable
Alternative Currency, as applicable, and in immediately
available funds. Interest shall be payable on any and all
amounts remaining unpaid by the Borrower under this Article
III from the date such amounts become payable (whether at
stated maturity, by acceleration or otherwise) until payment
in full at the rate which would be payable on any outstanding
Base Rate Loans which were then overdue. If the Borrower fails
to timely reimburse the Issuing Lender on the date the
Borrower receives the notice referred to in this Section 3.5,
the Borrower shall be deemed to have timely given a Notice of
Borrowing hereunder to the Administrative Agent requesting the
Lenders to make a Base Rate Loan on such date in an amount
equal to the amount or Dollar Amount, as applicable, of such
drawing and, subject to the satisfaction or waiver of the
conditions precedent specified in Article V, the Lenders shall
make Base Rate Loans in such amount, the proceeds of which
shall be applied to reimburse the Issuing Lender for the
amount or Dollar Amount, as applicable, of the related drawing
and costs and expenses."
(n) Section 4.1(c) is hereby deleted in its entirety and the
following Section 4.1(c) substituted in lieu thereof:
"(c) Applicable Margin. The Applicable Margin
provided for in Section 4.1(a) with respect to the Loans (the
"Applicable Margin") shall be (i) 0.00% for Base Rate Loans
from the Effective Date through March 15, 1999 and 0.250%
thereafter and (ii) 1.25% for LIBOR Rate Loans from the
effective Date through March 15, 1999 and 1.50% thereafter."
(o) Section 4.2 is hereby amended by deleting the number
"$2,500,000" in the fifth line thereof and substituting the number "$5,000,000"
in lieu thereof.
(p) Section 4.3 is hereby deleted in its entirety and the
following Section 4.3 substituted in lieu thereof:
"SECTION 4.3. Fees.
(a) Commitment Fee. Commencing on the Effective Date,
the Borrower shall pay to the Administrative Agent, for the
account of the Lenders, a non-refundable commitment fee on the
average daily unused portion of the Aggregate Commitment at a
rate per annum which shall be 0.375%. The commitment fee shall
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be payable in arrears on the last Business Day of each fiscal
quarter during the term of this Agreement commencing June 30,
1998, and on the Revolving Termination Date. Such commitment
fee shall be distributed by the Administrative Agent to the
Lenders pro rata in accordance with the Lenders' respective
Commitment Percentages.
(b) Administrative Agent's and Other Fees. The
Borrower agrees to pay to the Administrative Agent, for its
account, the fees set forth in the separate fee letter
agreement executed by the Borrower and the Administrative
Agent dated June 16, 1998."
(q) Section 8.12 is hereby amended by deleting the period at the
end of the first sentence of such Section 8.12 and inserting the following
proviso in lieu thereof:
"provided that, notwithstanding the foregoing, Agecroft
Properties, Inc., shall not be required to execute and deliver
a Guaranty Supplement or supplement to the Intercompany
Subordination Agreement at any time when the delivery of any
such document would conflict with its charter or articles of
organization."
(r) ARTICLE VIII is hereby amended by (i) substituting the
Section number 8.15 for the current Section 8.13 and (ii) adding the following
Sections.
"SECTION 8.13. Year 2000 Compatibility. Take all actions
reasonably necessary to assure that Borrower's computer based
systems are able to operate and effectively process data which
includes dates on and after January 1, 2000. At the request of
the Administrative Agent, the Borrower shall provide
reasonable assurances satisfactory to the Administrative Agent
of the Borrower's Year 2000 compatibility."
"SECTION 8.14. Agecroft Intercompany Note. If the Agecroft
Prison Spin-off does not occur within thirty (30) days of the
completion of construction of the Agecroft Prison as
contemplated in the Agecroft Prison Transaction, the Borrower
shall pledge and deliver to the Administrative Agent, for the
benefit of itself and the Lenders, the promissory note
evidencing the intercompany loan by the Borrower to Agecroft
Properties, Inc. pursuant to the Agecroft Prison Transaction.
Such note delivery shall be accompanied by an updated schedule
to the Pledge Agreement reflecting such pledge, and such other
documents as are reasonably requested by the Administrative
Agent regarding such pledge.
(s) Section 9.1 is hereby deleted in its entirety and the
following Section 9.1 substituted in lieu thereof:
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"SECTION 9.1 Minimum Net Worth. Permit the
Consolidated Net Worth of the Borrower and its Subsidiaries at
any time to be less than (a) $306,500,000 plus (b) fifty
percent (50%) of Consolidated Net Income of the Borrower and
its Subsidiaries (if positive) as of each fiscal quarter end
occurring after March 31, 1998 plus (c) one hundred percent
(100%) of the aggregate Net Cash Proceeds with respect to any
offering of capital stock or any exercise of warrants or
options exercisable with respect to capital stock of the
Borrower or any of its Subsidiaries received after March 31,
1998 plus (d) the aggregate amount of any Subordinated Debt
converted into capital stock of the Borrower or any of its
Subsidiaries after March 31, 1998."
(t) SECTION 9.2 is hereby amended by deleting the figure 0.65 and
substituting the figure 0.75 in lieu thereof.
(u) Section 10.1 is hereby amended by deleting the period at the
end of Section 10.1(j) and substituting "; and" in lieu therof and by inserting
the following text as a new clause (k) immediately following Section 10.1(j):
"(j) intercompany Debt between the Borrower and
Agecroft Properties, Inc. as contemplated by the Agecroft
Prison Transaction which intercompany Debt shall not be
required to be subordinated in right and time of payment to
the Obligations so long as such subordination would conflict
with the charter or articles of organization of Agecroft
Properties, Inc."
(v) Section 10.4 is hereby amended by deleting the period at the
end of Section 10.4(g) and substituting "; and" in lieu thereof and by inserting
the following text as a new clause (h) immediately following Section 10.4(g):
"(h) investments by the Borrower in, and intercompany loans
and advances by the Borrower to, Agecroft Properties, Inc., as
contemplated in the Agecroft Prison Transaction."
(w) Section 10.6 is hereby amended by deleting the period at the
end of Section 10.6(c) and substituting "; and" in lieu thereof and by inserting
the following text as new clauses (d) and (e) immediately following Section
10.6(c):
"(d) the leases and subleases by Agecroft Properties, Inc., as
contemplated in the Agecroft Prison transaction."
"(e) the Agecroft Prison Spin-off; provided that no Default or
Event of Default has occurred and is continuing or would
result therefrom."
(x) The following Section 12.10 shall be inserted immediately
following Section 12.9:
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"SECTION 12.10 Documentation Agent and Syndication
Agent. Neither the Documentation Agent nor the Syndication
Agent, in their respective capacities as such, shall have any
duties or responsibilities under this Agreement or any other
Loan Document."
(y) Section 13.6 is hereby deleted in its entirety and the
following language substituted in lieu thereof:
"SECTION 13.6 Binding Arbitration; Waiver of Jury Trial.
(a) Binding Arbitration. Upon demand of any party,
whether made before or after institution of any judicial
proceeding, any dispute, claim or controversy arising out of,
connected with or relating to the Notes or any other Loan
Documents ("Disputes"), between or among parties to the Notes
or any other Loan Document shall be resolved by binding
arbitration as provided herein. Institution of a judicial
proceeding by a party does not waive the right of that party
to demand arbitration hereunder. Disputes may include, without
limitation, tort claims, counterclaims, claims brought as
class actions, claims arising from Loan Documents executed in
the future, or claims concerning any aspect of the past,
present or future relationships arising out of or connected
with the Loan Documents. Arbitration shall be conducted under
and governed by the Commercial Financial Disputes Arbitration
Rules (the "Arbitration Rules") of the American Arbitration
Association and Title 9 of the U.S. Code. All arbitration
hearings shall be conducted in Charlotte, North Carolina. The
expedited procedures set forth in Rule 51, et seq. of the
Arbitration Rules shall be applicable to claims of less than
$1,000,000. All applicable statutes of limitation shall apply
to any Dispute. A judgment upon the award may be entered in
any court having jurisdiction. Notwithstanding anything
foregoing to the contrary, any arbitration proceeding demanded
hereunder shall begin within ninety (90) days after such
demand thereof and shall be concluded within one-hundred and
twenty (120) days after such demand. These time limitations
may not be extended unless a party hereto shows cause for
extension and then such extension shall not exceed a total of
sixty (60) days. The panel from which all arbitrators are
selected shall be comprised of licensed attorneys. The single
arbitrator selected for expedited procedure shall be a retired
judge from the highest court of general jurisdiction, state or
federal, of the state where the hearing will be conducted. The
parties hereto do not waive any applicable Federal or state
substantive law except as provided herein. Notwithstanding the
foregoing, this paragraph shall not apply to any Hedging
Agreement that is a Loan Document.
(b) Jury Trial. THE ADMINISTRATIVE AGENT, EACH LENDER
AND THE BORROWER HEREBY ACKNOWLEDGE THAT BY AGREEING TO
BINDING ARBITRATION THEY HAVE IRREVOCABLY WAIVED THEIR
RESPECTIVE RIGHTS TO A JURY TRIAL WITH RESPECT TO ANY ACTION,
CLAIM OR OTHER PROCEEDING ARISING OUT OF ANY DISPUTE IN
CONNECTION WITH THIS AGREEMENT, THE NOTES OR
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THE OTHER LOAN DOCUMENTS, ANY RIGHTS OR OBLIGATIONS
HEREUNDER OR THEREUNDER, OR THE PERFORMANCE OF SUCH
RIGHTS AND OBLIGATIONS.
(c) Preservation of Certain Remedies. Notwithstanding
the preceding binding arbitration provisions, the parties
hereto and the other Loan Documents preserve, without
diminution, certain remedies that such Persons may employ or
exercise freely, either alone, in conjunction with or during a
Dispute. Each such Person shall have and hereby reserves the
right to proceed in any court of proper jurisdiction or by
self help to exercise or prosecute the following remedies: (i)
all rights to foreclose against any real or personal property
or other security by exercising a power of sale granted in the
Loan Documents or under applicable law or by judicial
foreclosure and sale, (ii) all rights of self help including
peaceful occupation of property and collection of rents, set
off, and peaceful possession of property, (iii) obtaining
provisional or ancillary remedies including injunctive relief,
sequestration, garnishment, attachment, appointment of
receiver and in filing an involuntary bankruptcy proceeding,
and (iv) when applicable, a judgment by confession of
judgment. Preservation of these remedies does not limit the
power of an arbitrator to grant similar remedies that may be
requested by a party in a Dispute."
(z) Section 13.9(b)(ii) is hereby amended by deleting the number
"$10,000,000" therein and substituting the number $5,000,000 in lieu thereof.
SECTION 3. Other Agreements.
(a) The Borrower shall have until thirty (30) days after the
Effective Date to deliver the documents required pursuant Section 8.12 with
regard to Prison Holdings, Inc., Mineral Xxxxx Limited Partnership and CCA
Capital.
(b) Notwithstanding anything in the Amended and Restated Credit
Agreement to the contrary, the proceeds of any Loans under the Amended and
Restated Credit Agreement shall be disbursed into the deposit account of the
Borrower specified in the most recent Notice of Account Designation.
SECTION 4.Conditions to Effectiveness. The effectiveness of this
Amendment shall be conditioned upon delivery to the Agent of the following
items:
(a) Promissory Notes. The Borrower shall issue and deliver to
the Administrative Agent, in exchange for the Revolving Credit Notes
issued on the Closing Date, duly executed Revolving Credit Notes
(substantially in the form of Exhibit A-1 hereto) payable to each
Lender in the amount of such Lender's respective Commitment as
increased hereby.
(b) Pledge Agreement Supplement. The Borrower shall have
executed and delivered a Pledge Agreement Supplement with regard to
Agecroft Properties, Inc. to the Administrative Agent.
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(c) Fees. The Administrative Agent, the Documentation Agent
and the Syndication Agent (collectively the "Agents") and each Lender
shall receive their respective fees set forth in the fee letter from
the Agents and certain of their affiliates to the Borrower dated as of
June 16, 1998.
(d) Certificate of the Borrower. The Agent shall have received
a certificate dated as of the Effective Date from the Borrower, in form
and substance satisfactory to the Agent, certifying on behalf of the
Loan Parties that all representations and warranties of the Loan
Parties contained in this Amended and Restated Credit Agreement and the
Loan Documents are true and correct in all material respects; that no
Loan Party is in violation of any of the covenants contained in the
other Loan Documents; that, after giving effect to the transactions
contemplated by this Amended and Restated Credit Agreement, no Default
or Event of Default has occurred and is continuing; and that the Loan
Parties have satisfied each of the closing conditions regarding this
Amended and Restated Credit Agreement to be satisfied thereby.
(e) Certificate of Secretary of the Credit Parties. The
Administrative Agent shall have received a certificate of the secretary
or assistant secretary of each Loan Party certifying on behalf of such
Loan Party, as applicable, that the articles of incorporation and
bylaws of such Loan Party previously delivered to the Administrative
Agent have not been repealed, revoked, rescinded or amended in any
respect (or if any such documents have been repealed, revoked,
rescinded or amended in any respect, true and correct copies of such
documents as of the date hereof); that attached thereto is a true and
complete copy of resolutions duly adopted by the Board of Directors of
such Loan Party, authorizing the execution, delivery and performance of
this Amended and Restated Credit Agreement and the continued
effectiveness of the other Loan Documents; and as to the incumbency and
genuineness of the signature of each officer of such Loan Party
executing Loan Documents to which such Loan Party is a party.
(f) Opinions of Counsel. The Administrative Agent shall have
received favorable opinions of counsel to the Loan Parties, dated as of
the Effective Date and addressed to the Administrative Agent and
Lenders, in form and substance satisfactory to the Administrative
Agent.
(g) Expenses. Payment of the Borrower of all amount owed
pursuant to Section 8 below.
(h) Updated Schedules. Receipt by the Administrative Agent of
updated copies of Schedule 6.1(a) and Schedule 6.1(b) to the Credit
Agreement prepared to as of the Effective Date.
(i) Additional Items. Receipt by the Administrative Agent of
any other document or instrument reasonably requested by it in
connection with the execution of this Amendment.
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SECTION 5. Representations and Warranties; No Default. By its execution
hereof, the Borrower hereby certifies on behalf of itself and the other Loan
Parties that each of the representations and warranties set forth in the Amended
and Restated Credit Agreement and the other Loan Documents is true and correct
as of the date hereof as if fully set forth herein and that as of the date
hereof no Default or Event of Default has occurred and is continuing.
SECTION 6. Limited Amendment and Restatement. Except as expressly
amended herein, the Credit Agreement and each other Loan Document shall continue
to be, and shall remain, in full force and effect (including all monetary
limitations and other restrictions applicable to the Borrower and its
Subsidiaries and Affiliates) as in existence immediately prior to the date
hereof. This Amended and Restated Credit Agreement shall not be deemed (a) to be
a waiver of, or consent to, or a modification or amendment of, any other term or
condition of the Credit Agreement or any other Loan Documents or (b) to
prejudice any other right or rights which the Agent or Lenders may now have or
may have in the future under or in connection with the Amended and Restated
Credit Agreement or the Loan Documents or any of the instruments or agreements
referred to therein, as the same may be amended, restated or otherwise modified
from time to time.
SECTION 7. Incorporation. All terms and conditions of the Credit
Agreement (including all Exhibits and Schedules thereto), as modified herein,
are hereby amended and restated and incorporated herein by this reference
thereto as if expressly restated herein in their entirety. Upon the date hereof,
all outstanding Obligations shall become Obligations hereunder and the Credit
Agreement shall be replaced and superseded by this Amended and Restated Credit
Agreement. On the Amendment and Restatement Effective Date, (i) all loans under
the Credit Agreement ("Existing Loans") made by any Existing Lender who is not a
Lender hereunder (any such Lender, a "Former Lender") shall be repaid in full
and the commitments and other obligations and (except as expressly set forth in
the Credit Agreement) rights of such Former Lender shall be terminated, (ii) all
outstanding Existing Loans shall be deemed Loans hereunder and the
Administrative Agent shall make such transfers of funds as are necessary in
order that the outstanding balance of such Loans, together with any Loans funded
on the Amendment and Restatement Effective Date, reflect the Commitments of the
Lenders hereunder, (iii) there shall have been paid in cash in full all accrued
but unpaid interest due on the Existing Loans to but excluding the Amendment and
Restatement Effective Date, and (iv) there shall have been paid in cash in full
all accrued but unpaid fees under the Credit Agreement due to but excluding the
Amendment and Restatement Effective Date, and all other amounts, costs and
expenses then owing to any of the Former Lenders and/or any of the
Administrative Agent under the Credit Agreement as in effect immediately prior
to the Amendment and Restatement Effective Date, in each case to the
satisfaction of such Person, regardless of whether or not such amounts would
otherwise be due and payable at such time pursuant to the terms of the Credit
Agreement.
SECTION 8. Expenses. The Borrower shall pay all reasonable
out-of-pocket expenses of the Administrative Agent in connection with the
preparation, execution and delivery of this Amended and Restated Credit
Agreement, including without limitation, the reasonable fees and disbursements
of counsel for the Administrative Agent.
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SECTION 9. Confirmation of Guaranty. (a) Each of the Guarantors hereby
acknowledges and consents to the terms of this Amended and Restated Credit
Agreement and confirm that their respective obligations under the Guaranty shall
remain in full force and effect and shall secure the Obligations of the Borrower
under this Amended and Restated Credit Agreement, (b) the Borrower hereby
confirms that its obligations under the Pledge Agreement shall remain in full
force and effect and shall secure the Obligations of the Borrower under this
Amended and Restated Credit Agreement and (c) each party hereto acknowledges and
consents to the terms of this Amended and Restated Credit Agreement and confirms
the validity and enforceability of each Loan Documents.
SECTION 10. Governing Law. This Amended and Restated Credit Agreement
shall be governed by and construed in accordance with the laws of the State of
North Carolina.
SECTION 11. Counterparts. This Amended and Restated Credit Agreement
may be executed in separate counterparts, each of which when executed and
delivered is an original but all of which taken together constitute one and the
same instrument.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Amended and
Restated Credit Agreement to be duly executed as of the date and year first
above written.
BORROWER:
[CORPORATE SEAL] CORRECTIONS CORPORATION OF AMERICA
By:/s/ Doctor X. Xxxxxx
---------------------------------------
Name: Doctor X. Xxxxxx
---------------------------------
Title: Chairman, CEO and President
--------------------------------
[CORPORATE SEAL] CCA INTERNATIONAL, INC.
By:/s/ Xxxxxxx X. Xxxxxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
---------------------------------
Title: President
--------------------------------
[CORPORATE SEAL] TRANSCOR AMERICA, INC.
By:/s/ Xxxxxxx X. Xxxxxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
---------------------------------
Title: Secretary
--------------------------------
[CORPORATE SEAL] CONCEPT INCORPORATED
By:/s/ Xxxxxxx X. Xxxxxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
--------------------------------
Title: President
-------------------------------
[Signature Pages Continue]
15
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[CORPORATE SEAL] CORRECTIONAL SERVICES GROUP, INC.
By:/s/ Xxxxxxx X. Xxxxxxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
--------------------------------
Title: President
-------------------------------
[CORPORATE SEAL] CORRECTIONS PARTNERS, INC.
By:/s/ Xxxxxxx X. Xxxxxxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
--------------------------------
Title: President
-------------------------------
[CORPORATE SEAL] DIBOLL CORRECTIONAL CENTER, INC.,
a Kentucky corporation
By:/s/ Xxxxxxx X. Xxxxxxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
--------------------------------
Title: President
-------------------------------
[CORPORATE SEAL] GADSDEN CORRECTIONAL INSTITUTION,
INC., a Kentucky corporation
By:/s/ Xxxxxxx X. Xxxxxxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
---------------------------------
Title: President
-------------------------------
[Signature Pages Continue]
16
17
[CORPORATE SEAL] XXX ADJUSTMENT CENTER, INC., a
Kentucky corporation
By:/s/ Xxxxxxx X. Xxxxxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
-------------------------------
Title: President
------------------------------
[CORPORATE SEAL] XXXXXX ADJUSTMENT CENTER, INC., a
Kentucky corporation
By:/s/ Xxxxxxx X. Xxxxxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
-------------------------------
Title: President
------------------------------
[CORPORATE SEAL] OTTER CREEK CORRECTIONAL CENTER,
INC., a Kentucky corporation
By:/s/ Xxxxxxx X. Xxxxxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
-------------------------------
Title: President
------------------------------
[CORPORATE SEAL] RIVER CITY CORRECTIONAL CENTER,
INC., a Kentucky corporation
By:/s/ Xxxxxxx X. Xxxxxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
-------------------------------
Title: President
------------------------------
[Signature Pages Continue]
17
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[CORPORATE SEAL] USCC XXXXX/XXXXXXXX MANAGEMENT
COMPANY, INC., a North Carolina corporation
By:/s/ Xxxxxxx X. Xxxxxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
----------------------------------
Title: President
---------------------------------
[CORPORATE SEAL] USCC PAMLICO MANAGEMENT
COMPANY, INC., a North Carolina corporation
By:/s/ Xxxxxxx X. Xxxxxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
----------------------------------
Title: President
---------------------------------
[Signature Pages Continue]
18
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FIRST UNION NATIONAL BANK
By:/s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
------------------------------
Title: Senior Vice President
-----------------------------
[Signature Pages Continue]
19
20
NATIONSBANK, N.A.
By:/s/ Xxxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxxx
-------------------------------
Title: Senior Vice President
------------------------------
[Signature Pages Continue]
20
21
CANADIAN IMPERIAL BANK OF COMMERCE
By:/s/ Xxx X. Xxxxx
--------------------------------------
Name: Xxx X. Xxxxx
--------------------------------
Title: Authorized Signatory
-------------------------------
[Signature Pages Continue]
21
22
MERCANTILE BANK NATIONAL
ASSOCIATION
By:/s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxx
-------------------------------
Title: Vice President
------------------------------
[Signature Pages Continue]
22
23
FIRST TENNESSEE BANK, NATIONAL
ASSOCIATION
By:/s/ Xxxxxxx Xxxxx
--------------------------------------
Name: Xxxxxxx Xxxxx
--------------------------------
Title: Commercial Loan Officer
-------------------------------
[Signature Pages Continue]
23
00
XXXX XXXX, XXXXXXX, XXXXXXX AGENCY
By:/s/ Xxxxxxxxx Xxxxxx
---------------------------------------------
Name: Xxxxxxxxx Xxxxxx
---------------------------------------
Title: Senior Vice President and Joint
--------------------------------------
General Manager
---------------------------------------------
[Signature Pages Continue]
24
25
SOUTHTRUST BANK, N.A.
By:/s/ Xxxxx X. Xxxxx, Xx.
-------------------------------------
Name: Xxxxx X. Xxxxx
-------------------------------
Title: Vice President
------------------------------
[Signature Pages Continue]
25
00
XXXXX XXXX XX XXXXXXXXXX, N.A.
By:/s/ Xxxx Juethen
-----------------------------------
Name: Xxxx Juethen
-----------------------------
Title: Vice President
----------------------------
26
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EXHIBIT A-1
AMENDED AND RESTATED REVOLVING CREDIT NOTE
$ June ___, 1998
-----------------------------------
[THIS AMENDED AND RESTATED REVOLVING CREDIT NOTE REPLACES BUT DOES NOT
EXTINGUISH THE OBLIGATIONS OF THE BORROWER UNDER THE REVOLVING CREDIT NOTE DATED
SEPTEMBER 9, 1996 EXECUTED BY THE BORROWER IN FAVOR OF THE LENDER REFERRED TO
BELOW.]
FOR VALUE RECEIVED, the undersigned, CORRECTIONS CORPORATION OF
AMERICA, a corporation organized under the laws of Tennessee (the "Borrower"),
hereby promises to pay to the order of (the "Bank"), at the times, at the place
and in the manner provided in the Credit Agreement hereinafter referred to, the
principal sum of up to ________________ Dollars ($___________________), or, if
less, the aggregate unpaid principal amount of all Revolving Credit Loans
disbursed by the Bank under the Credit Agreement referred to below, together
with interest at the rates as in effect from time to time with respect to each
portion of the principal amount hereof, determined and payable as provided in
Article IV of the Credit Agreement.
This Note is one of the Revolving Credit Notes referred to in, and is
entitled to the benefits of, the Amended and Restated Credit Agreement dated as
of June __, 1998 (as amended, restated or otherwise modified, the "Credit
Agreement") by and among the Borrower, the lenders (including the Bank) party
thereto (the "Lenders"), First Union National Bank, as Administrative Agent,
Canadian Imperial Bank of Commerce, as Documentation Agent and NationsBank,
N.A., as Syndication Agent. The Credit Agreement contains, among other things,
provisions for the time, place and manner of payment of this Note, the
determination of the interest rate borne by and fees payable in respect of this
Note, acceleration of the payment of this Note upon the happening of certain
stated events and the mandatory repayment of this Note under certain
circumstances.
The Borrower agrees to pay on demand all costs of collection, including
reasonable attorneys' fees, if any part of this Note, principal or interest, is
collected after maturity with the aid of an attorney.
Presentment for payment, notice of dishonor, protest and notice of
protest are hereby waived.
THIS NOTE IS MADE AND DELIVERED IN THE STATE OF NORTH CAROLINA
AND SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS
OF THE STATE OF NORTH CAROLINA.
The Debt evidenced by this Note is senior in right of payment to all
Subordinated Debt referred to in the Credit Agreement.
IN WITNESS WHEREOF, the Borrower has caused this Note to be executed
under seal by a duly authorized officer as of the day and year first above
written.
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CORRECTIONS CORPORATION OF AMERICA
[CORPORATE SEAL]
By:
--------------------------------------
Name:
---------------------------------
Title:
-------------------------------
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EXHIBIT J
NOTICE OF ACCOUNT DESIGNATION
Dated as of: _________
First Union National Bank,
Xxx Xxxxx Xxxxx Xxxxxx, XX-0
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Syndication Agency Services
Ladies and Gentlemen:
This Notice of Account Designation is delivered to you under the
Amended and Restated Credit Agreement dated as of June __, 1998 (as amended,
restated or otherwise modified, the "Credit Agreement") by and among Corrections
Corporation of America, a corporation organized under the laws of Tennessee (the
"Borrower"), the lenders party thereto (the "Lenders"), First Union National
Bank, as Administrative Agent, Canadian Imperial Bank of Commerce, as
Documentation Agent and NationsBank, N.A., as Syndication Agent.
1. The Administrative Agent is hereby authorized to disburse all Loan
proceeds into the following account(s):
----------------------------
ABA Routing Number: _________
Account Number: _____________
2. This authorization shall remain in effect until revoked or until a
subsequent Notice of Account Designation is provided to the Administrative
Agent.
3. Capitalized terms used herein and not defined herein shall have the
meanings assigned thereto in the Credit Agreement.
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IN WITNESS WHEREOF, the undersigned has executed this Notice of Account
Designation this ________ day of _________, ____.
CORRECTIONS CORPORATION OF AMERICA
By:
--------------------------------------
Name:
---------------------------------
Title:
--------------------------------
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SCHEDULES
The Schedules to this Amended and Restated Credit Agreement have been
omitted and are on file at the offices of the Borrower.
31
