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EXHIBIT 10.28
OVERLINE AGREEMENT
THIS OVERLINE AGREEMENT (this "Agreement"), dated September 19, 2000,
is made and entered into on the terms and conditions hereinafter set forth, by
and among AMERICA SERVICE GROUP INC., a Delaware corporation (the "Borrower"),
the subsidiaries of the Borrower who are parties to the Credit Agreement, as
hereinafter defined (the "Guarantors"), the several lenders who are now or
hereafter become parties to the Credit Agreement (the "Lenders"), and BANK OF
AMERICA, N.A., a national banking association ("Bank of America"), individually
and as administrative agent for the Lenders and the Issuing Bank (in such
capacity, the "Administrative Agent"), and as Issuing Bank.
RECITALS:
1. Pursuant to an Amended and Restated Credit Agreement dated as
of August 1, 2000, among the Borrower, the Guarantors, the Administrative Agent,
the Lenders and the Issuing Bank (as the same heretofore may have been and/or
hereafter may be amended, restated, supplemented, extended, renewed, replaced or
otherwise modified from time to time, the "Credit Agreement"; capitalized terms
used but not otherwise defined herein have the same meanings as in the Credit
Agreement), the Lenders have agreed to make Loans and purchase participations in
Letters of Credit issued for the account of the Borrower, and the Issuing Bank
has agreed to issue such Letters of Credit, all as more specifically described
in the Credit Agreement.
2. The Borrower has requested that Bank of America provide
additional loans ("Overline Loans") to the Borrower in an aggregate principal
amount not to exceed $7,500,000 outstanding at any one time (the "Overline
Commitment"), which Bank of America is willing to do subject to and upon the
terms and conditions of this Agreement.
AGREEMENTS:
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
3. AGREEMENT TO MAKE OVERLINE LOANS. Subject to and upon
compliance with all of the terms and conditions of this Agreement, Bank of
America agrees to make Overline Loans to the Borrower upon the Borrower's
request.
4. SPECIAL AGREEMENTS REGARDING OVERLINE LOANS. The parties
hereto acknowledge, agree and confirm that:
(A) Overline Loans shall be considered to be Loans and
Revolving Loans (and also shall be Base Rate Loans or LIBOR Loans, as
applicable) for all purposes of the
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Credit Agreement and the other Loan Documents, and shall be subject to
all terms, conditions and provisions of the Credit Agreement and the
other Loan Documents applicable to Revolving Loans; provided, however,
that (1) no Lender other than Bank of America shall have any obligation
to make or participate in any Overline Loans, (2) Overline Loans shall
not be taken into account for purposes of subsections 2.1.1(c),
2.2.1(a), 2.2.1(b), 3.1.3 and 3.1.4 of the Credit Agreement, and (3)
Section 2.8 of the Credit Agreement shall not apply to Overline Loans.
(B) Overline Loans shall be guaranteed and secured as set
forth in the Credit Agreement and the other Loan Documents, in the same
manner as, and with lien and priority equal to that of, the other
Loans.
(C) Overline Loans shall be made at the times, in the
manner and upon compliance with all applicable requirements and
procedures set forth in the Credit Agreement with respect to Revolving
Loans, and shall bear interest as provided in the Credit Agreement with
respect to Revolving Loans. Any Notice of Borrowing with respect to an
Overline Loan shall indicate conspicuously that the requested Loan is
to be an Overline Loan.
(D) No Overline Loan shall be requested or made unless,
and then only to the extent that, the amount of such Overline Loan
exceeds the aggregate amount available to be funded as Revolving Loans
pursuant to the availability limitations of subsections 2.2.1(a) and
2.2.1(b) of the Credit Agreement.
(E) No Overline Loan shall be requested or made if the
making of such Overline Loan would cause the aggregate outstanding
principal balance of the Overline Loans to exceed $7,500,000.
(F) No Interest Period for an Overline Loan may extend
beyond the Conversion Date (as hereinafter defined).
(G) The Borrower may prepay Overline Loans at any time
and from time to time. In the absence of a Default, Overline Loans that
are Base Rate Loans shall be repaid prior to the repayment of other
outstanding Loans. In all events, the Borrower shall prepay Overline
Loans to the extent necessary so that the aggregate principal amount of
Overline Loans outstanding at any time does not exceed the sum of
$7,500,000.
(H) Notwithstanding anything herein that may be to the
contrary, on and after the Conversion Date the making of Overline Loans
shall be in the sole and absolute discretion of Bank of America, and
any Overline Loans that thereafter may be outstanding from time to time
shall be due and payable ON DEMAND.
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(I) As used herein, "Conversion Date" means December 29,
2000, as such date may be extended as hereinafter set forth. In the
absence of a Default, the Conversion Date may be extended to the last
Business Day of any calendar month following the month in which the
then effective Conversion Date occurs; provided, however, that the
Conversion Date cannot be extended beyond March 30, 2001. In order to
extend the Conversion Date, the Borrower in each instance shall notify
Bank of America of its intention to effect such extension not later
than fifteen (15) days prior to the then effective Conversion Date and
shall pay to the Administrative Agent an extension fee equal to the
product obtained by multiplying (x) the sum of the Commitments plus the
Overline Commitment by (y) one hundredth of one percentage point
(0.01%) by (z) the number of periods of approximately one (1) month
that are included in the extension. The Administrative Agent shall
distribute such fee(s) among the Lenders pro rata in accordance with
their respective Commitments; provided that for purposes of this
distribution Bank of America's Commitment shall be deemed to include
the Overline Commitment.
5. OVERLINE NOTE. The Overline Loans made by Bank of America
pursuant to this Agreement shall be evidenced by a Promissory Note in
substantially the form attached hereto as Exhibit A, made and executed by the
Borrower, payable to the order of Bank of America (the "Overline Note"). Bank of
America hereby is authorized to record and endorse the date and principal amount
of each Overline Loan made by it, and the amount of all payments and prepayments
of principal and interest made to Bank of America with respect to Overline
Loans, on a schedule annexed to and constituting a part of the Overline Note,
which recordation and endorsement shall constitute prima facie evidence of the
Overline Loans made by Bank of America to the Borrower and payments made by the
Borrower to Bank of America, absent manifest error; provided, however, that (a)
failure by Bank of America to make any such recordation or endorsement shall not
in any way limit or otherwise affect the obligations of the Borrower or the
rights and remedies of Bank of America under the Overline Note, this Agreement
or the Credit Agreement, and (b) payments to Bank of America of principal and
interest on the Overline Loans shall not be affected by the failure to make any
such recordation or endorsement thereof. In lieu of making recordation or
endorsement, Bank of America hereby is authorized, at its option, to record the
date and principal amount of each Overline Loan made by it, and the amount of
each payment of principal and interest made to Bank of America with respect to
such Overline Loans, on its books and records in accordance with its usual and
customary practice, which recordation shall constitute prima facie evidence of
the Overline Loans made by Bank of America to the Borrower and the payments and
prepayments made by the Borrower to Bank of America in respect of the Overline
Loans, absent manifest error.
6. CONDITIONS PRECEDENT. The effectiveness of this Agreement and
the obligations of Bank of America to make Overline Loans are all subject to the
satisfaction by the Borrower and the Guarantors of the following conditions
precedent:
(A) CONDITIONS PRECEDENT TO INITIAL OVERLINE LOAN. The
effectiveness of this Agreement and the obligations of Bank of America
to make Overline Loans are
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subject to the satisfaction of the condition that Bank of America shall
have received each of the following, in form and substance satisfactory
to Bank of America and its counsel:
(1) AGREEMENT. A counterpart original of this
Agreement, duly and validly executed and delivered by or on
behalf of all the appropriate parties thereto;
(2) OVERLINE NOTE. The Overline Note, duly and
validly executed and delivered on behalf of the Borrower;
(3) ORGANIZATIONAL DOCUMENTS. Copies of the charters,
articles or certificates of incorporation or other
organizational documents of the Borrower and each Guarantor,
certified by the Secretary of State or other appropriate
public official in each jurisdiction of organization;
(4) BYLAWS. A copy of the bylaws, and all amendments
thereto, of the Borrower and each Guarantor, together with
certificates of the respective Secretaries or Assistant
Secretaries thereof, dated the date hereof, stating that such
copy is complete and correct;
(5) GOOD STANDING AND AUTHORITY. Certificates of the
appropriate governmental officials of each jurisdiction as
Bank of America reasonably may request, dated a date
reasonably satisfactory to Bank of America, stating that the
Borrower and each Guarantor exists, is in good standing with
respect to the payment of franchise and similar taxes and is
duly qualified to transact business therein;
(6) INCUMBENCY. Certificates of the respective
Secretaries or Assistant Secretaries of the Borrower and each
Guarantor, dated the date hereof, as to the incumbency and
signature of all officers of the Borrower or such Guarantor
authorized to execute or attest to this Agreement, the
Overline Note and the other Loan Documents to which the
Borrower or any such Guarantor is a party, together with
evidence of the incumbency of each such Secretary or Assistant
Secretary;
(7) RESOLUTIONS. With respect to the Borrower and
each Guarantor (A) copies of the resolutions authorizing,
approving and ratifying this Agreement, the Overline Note and
the transactions contemplated herein and therein, duly adopted
by the respective boards of directors or other managers of the
Borrower and each Guarantor, together with (B) certificates of
the respective Secretaries or Assistant Secretaries of the
Borrower and each Guarantor, dated the date hereof, stating
that each such copy is a true and correct copy of resolutions
duly adopted at a meeting, or by action taken on written
consent, of the board of directors or other managers of the
Borrower or such Guarantor and that such resolutions have
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not been modified, amended, rescinded or revoked in any
respect and are in full force and effect as of the date
hereof;
(8) LEGAL OPINIONS OF THE BORROWER'S AND GUARANTORS'
COUNSEL. The favorable legal opinions of counsel to the
Borrower and the Guarantors approved by Bank of America, dated
the date hereof and addressed to Bank of America;
(9) CONSENTS. Evidence that the Borrower and each
Guarantor have obtained all requisite consents and approvals
required to be obtained from any Person to permit the
transactions contemplated by this Agreement and the Overline
Note to be consummated in accordance with their respective
terms and conditions; and
(10) OTHER MATTERS. All other documents, instruments,
agreements, opinions, certificates, insurance policies,
consents and evidences of other legal matters, in form and
substance satisfactory to Bank of America and its counsel, as
Bank of America reasonably may request.
(B) CONDITIONS PRECEDENT TO ALL OVERLINE LOANS. The
obligations of Bank of America to make any Overline Loans on any date
(including the date hereof) are subject to the satisfaction of the
conditions set forth below in this subsection 4(b). Each request for an
Overline Loan shall constitute a representation and warranty by the
Borrower to Bank of America that as of the date of the making of such
Overline Loan, the conditions in this subsection 4(b) have been
satisfied.
(1) REPRESENTATIONS AND WARRANTIES. The
representations and warranties of the Borrower and the
Guarantors set forth in this Agreement, the Credit Agreement
and the other Loan Documents and in any certificate, opinion
or other statement provided at any time by or on behalf of the
Borrower or any Guarantor in connection therewith or herewith
shall be true and correct on and as of the date of the making
of such Overline Loan as if made on and as of such date,
except for (1) representations and warranties that expressly
relate to an earlier date, which remain true and correct as of
said earlier date, and (2) representations and warranties that
have become untrue or incorrect solely because of changes
permitted by the terms of the Credit Agreement and the other
Loan Documents.
(2) NO DEFAULT. No Default shall have occurred and be
continuing on the date of the requested Overline Loan or after
giving effect to the making thereof.
(3) NO VIOLATIONS. No law or regulation shall
prohibit the making of the requested Overline Loan and no
order, judgment or decree of any court or Governmental
Authority shall, and no litigation shall be pending that in
the judgment of Bank of America would, enjoin, prohibit or
restrain Bank of America from making the requested Overline
Loan.
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(4) PROCEEDINGS SATISFACTORY. All proceedings in
connection with the making of any Overline Loan and the other
transactions contemplated by this Agreement, the Credit
Agreement, the Loan Documents and all documents incidental
thereto shall be reasonably satisfactory to Bank of America,
and Bank of America shall have received all such information
and such counterpart originals or certified or other copies of
such documents as Bank of America reasonably may request.
7. FURTHER ASSURANCES. The Borrower and the Guarantors shall, and
shall cause each of their respective Subsidiaries to, at their sole cost and
expense, execute and deliver to Bank of America all such further documents,
instruments and agreements and perform all such other acts that reasonably may
be required in the opinion of Bank of America to enable Bank of America to
confirm, preserve, protect, exercise and enforce its rights, powers, privileges,
options and remedies under this Agreement, the Credit Agreement, the Security
Documents and the other Loan Documents and to carry out the provisions or
effectuate the intents and purposes thereof.
8. REPRESENTATIONS AND WARRANTIES OF THE BORROWER AND THE
GUARANTORS. As an inducement to Bank of America, the Administrative Agent, the
Lenders and the Issuing Bank to enter into this Agreement, the Borrower and the
Guarantors hereby represent and warrant to Bank of America, the Administrative
Agent, the Lenders and the Issuing Bank that, on and as of the date hereof:
(A) the representations and warranties contained in the
Credit Agreement and the other Loan Documents are true and correct,
except for (1) representations and warranties that expressly relate to
an earlier date, which remain true and correct as of said earlier date,
and (2) representations and warranties that have become untrue or
incorrect solely because of changes permitted by the terms of the
Credit Agreement and the other Loan Documents, and
(B) no Default or Event of Default has occurred and is
continuing.
9. INTEREST AND LOAN CHARGES NOT TO EXCEED MAXIMUM AMOUNTS
ALLOWED BY LAW. It is the intention of the Borrower and Bank of America to
conform strictly to all applicable laws that govern or limit the interest and
loan charges that may be charged in respect of the Overline Loans. Anything in
the Overline Note, this Agreement, the Credit Agreement or any of the other Loan
Documents to the contrary notwithstanding, in no event whatsoever, whether by
reason of advancement of proceeds of the Overline Loans, acceleration of the
maturity of the unpaid balance of the Overline Loans or otherwise, shall the
interest and loan charges agreed to be paid to Bank of America for the use of
the money advanced or to be advanced under this Agreement exceed the maximum
amounts collectible pursuant to applicable law. The Borrower and Bank of America
agree that:
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(A) if for any reason whatsoever the interest or loan
charges paid or contracted to be paid by the Borrower to Bank of
America in respect of the Overline Loans shall exceed the maximum
amounts collectible under applicable law, then, in that event, and
notwithstanding anything to the contrary in the Overline Note, this
Agreement, the Credit Agreement or any other Loan Document (1) the
aggregate of all consideration that constitutes interest or loan
charges under applicable law that is contracted for, taken, reserved,
charged or received in respect of the Overline Loans under the Overline
Note, this Agreement, the Credit Agreement or any other Loan Document
or otherwise under no circumstances shall exceed the maximum amounts
allowed by such applicable law, and any excess paid to Bank of America
shall be credited by Bank of America to the principal amount of the
Overline Loans (or, to the extent the principal amount thereof has been
or thereby would be paid in full, refunded to the Borrower), and (2) in
the event that the maturity of the Overline Loans is accelerated by
reason of an election of Bank of America resulting from any Default
under the Credit Agreement or otherwise, or in the event of any
required or permitted prepayment, then such consideration that
constitutes interest or loan charges under applicable law may never
include more than the maximum amounts allowed by such applicable law,
and any excess interest or loan charges shall be canceled automatically
as of the date of such acceleration or prepayment and, if theretofore
paid, shall be credited by Bank of America to the principal amount of
the Overline Loans (or, to the extent the principal amount of Overline
Loans has been or thereby would be paid in full, refunded by Bank of
America to the Borrower);
(B) all sums paid or agreed to be paid to Bank of America
for the use, forbearance or detention of sums due under this Agreement
shall, to the extent permitted by applicable law, be prorated,
allocated and spread throughout the full term thereof until payment in
full so that the rate or amount of interest and loan charges on account
of the Overline Loans will not exceed any applicable legal limitation;
and
(C) the right to accelerate the maturity of the Overline
Loans does not include the right to accelerate the maturity of any
interest or loan charges not otherwise accrued on the date of such
acceleration, and Bank of America does not intend to charge or collect
any unearned interest or loan charges in the event of any such
acceleration.
10. GOVERNING LAW. This Agreement is intended as a contract under
and shall be construed and enforceable in accordance with the laws of the State
of Tennessee, without reference to the conflicts or choice of law principles
thereof, except to the extent that federal law may be applicable to determining
the maximum amount of interest or loan charges that may be charged by Bank of
America in respect of the Overline Loans.
11. EFFECT OF AGREEMENT; CONTINUING EFFECTIVENESS OF CREDIT
AGREEMENT AND LOAN DOCUMENTS. All provisions of the Credit Agreement and the
other Loan Documents, including the defined terms used therein, hereafter shall
be construed in accordance with the terms, conditions and provisions of this
Agreement. As and to the extent modified hereby, the Credit Agreement, the other
Loan Documents and all terms, conditions and provisions thereof
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shall continue in full force and effect in all respects. This Agreement shall
constitute a Loan Document for all purposes of the Credit Agreement and the
other Loan Documents.
12. COUNTERPARTS. This Agreement may be executed in multiple
counterparts or copies, each of which shall be deemed an original hereof for all
purposes. One or more counterparts or copies of this Agreement may be executed
by one or more of the parties hereto, and some different counterparts or copies
executed by one or more of the other parties. Each counterpart or copy hereof
executed by any party hereto shall be binding upon the party executing same even
though other parties may execute one or more different counterparts or copies,
and all counterparts or copies hereof so executed shall constitute but one and
the same agreement. Each party hereto, by execution of one or more counterparts
or copies hereof, expressly authorizes and directs any other party hereto to
detach the signature pages and any corresponding acknowledgment, attestation,
witness, jurat or similar pages relating thereto from any such counterpart or
copy hereof executed by the authorizing party and affix same to one or more
other identical counterparts or copies hereof so that upon execution of multiple
counterparts or copies hereof by all parties hereto, there shall be one or more
counterparts or copies hereof to which is(are) attached signature pages
containing signatures of all parties hereto and any corresponding
acknowledgment, attestation, witness, jurat or similar pages relating thereto.
13. MISCELLANEOUS.
(A) This Agreement shall be governed by, construed and
enforced in accordance with the laws of the State of Tennessee, without
reference to the conflicts or choice of law principles thereof.
(B) The headings in this Agreement and the usage herein
of defined terms are for convenience of reference only, and shall not
be construed as amplifying, limiting or otherwise affecting the
substantive provisions hereof.
(C) Any reference herein to any instrument, document or
agreement, by whatever terminology used, shall be deemed to include any
and all amendments, modifications, supplements, extensions, renewals,
substitutions and/or replacements thereof as the context may require.
(D) When used herein, (1) the singular shall include the
plural, and vice versa, and the use of the masculine, feminine or
neuter gender shall include all other genders, as appropriate, (2)
"include", "includes" and "including" shall be deemed to be followed by
"without limitation" regardless of whether such words or words of like
import in fact follow same, and (3) unless the context clearly
indicates otherwise, the disjunctive "or" shall include the conjunctive
"and".
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the date first written above.
BORROWER:
AMERICA SERVICE GROUP INC.
a Delaware corporation
By: /s/ Xxxxx X. Xxxx
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Xxxxx X. Xxxx, Executive Vice President
and Chief Financial Officer
GUARANTORS:
PRISON HEALTH SERVICES, INC.
a Delaware corporation
By: /s/ Xxxxx X. Xxxx
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Xxxxx X. Xxxx, Executive Vice President and Treasurer
PRISON HEALTH SERVICES OF INDIANA, L.L.C.
an Indiana limited liability company
BY: PRISON HEALTH SERVICES, INC.
a Delaware corporation
By: /s/ Xxxxx X. Xxxx
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Xxxxx X. Xxxx, Executive Vice President
and Treasurer
Being the duly authorized General Manager thereof.
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EMSA GOVERNMENT SERVICES, INC.
a Florida corporation
By: /s/ Xxxxx X. Xxxx
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Xxxxx X. Xxxx, Executive Vice President and Treasurer
EMSA CORRECTIONAL CARE, INC.
a Florida corporation
By: /s/ Xxxxx X. Xxxx
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Xxxxx X. Xxxx, Executive Vice President and Treasurer
EMSA MILITARY SERVICES, INC.
a Florida corporation
By: /s/ Xxxxx X. Xxxx
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Xxxxx X. Xxxx, Executive Vice President and Treasurer
EMSA LIMITED PARTNERSHIP
a Florida limited partnership
BY: EMSA CORRECTIONAL CARE, INC.
a Florida corporation
By: /s/ Xxxxx X. Xxxx
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Xxxxx X. Xxxx, Executive Vice President
and Treasurer
Being the duly authorized General Partner thereof.
CORRECTIONAL HEALTH SERVICES, INC.
a New Jersey corporation
By: /s/ Xxxxx X. Xxxx
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Xxxxx X. Xxxx, Executive Vice President
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SECURE PHARMACY PLUS, INC.
By: /s/ Xxxxx X. Xxxx
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Xxxxx X. Xxxx, Executive Vice President and Treasurer
BANK OF AMERICA, ADMINISTRATIVE AGENT,
LENDER AND ISSUING BANK:
BANK OF AMERICA, N.A.
By: /s/ X. Xxxxxx Chappin
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Title: SVP
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LENDERS:
AMSOUTH BANK,
as a Lender and as a Co-Agent
By: /s/ Xxxxx X. Wind
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Title: V.P.
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XXXXXX TRUST AND SAVINGS BANK
as a Lender and as a Co-Agent
By: /s/ Xxxxxx Xxxxxxx-Xxxxxxxx
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Title: Vice President
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COMERICA BANK
as a Lender
By: /s/ Xxxxxxx X. Xxxxxx
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Title: Vice President
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EXHIBIT A
[FORM OF OVERLINE NOTE]