EXHIBIT 10.1
EIGHTH AMENDMENT TO THIRD AMENDED AND
RESTATED CREDIT AGREEMENT
DATED AS OF APRIL 18, 2005
This EIGHTH AMENDMENT 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 (i) permit the
incurrence of additional Indebtedness to be used for the purpose of prepaying
the Tranche D Term Loans and paying fees, costs and expenses incurred in
connection therewith or relating thereto and (ii) either (x) reduce the
Applicable Margin on the Revolving Credit Loans or (y) permit an additional
revolving credit facility, and the Lenders have agreed to amend the Credit
Agreement upon the terms, and subject to the 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. AMENDMENTS TO CREDIT AGREEMENT RELATING TO TRANCHE E TERM LOANS.
(a) The following new definitions are hereby added to Section 1.1 of
the Credit Agreement in the appropriate alphabetical order:
"Eighth Amendment": the Eighth Amendment to this Agreement,
dated as of April 18, 2005.
"Eighth Amendment Effective Date": the "Eighth Amendment
Effective Date", as defined in the Eighth Amendment.
"Tranche E Term Loan": as defined in Section 2.1.
"Tranche E Term Loan Commitment": as to any Tranche E Term
Loan Lender, the obligation of such Lender, if any, to make a Term
Loan to the Borrower hereunder, in a principal amount not to exceed
the amount set forth under the heading "Tranche E Term Loan
Commitment" opposite such Lender's name on Schedule 1 to the Lender
Addendum delivered by such Lender or in the Assignment and
Acceptance pursuant to which such Lender became a party hereto, as
the same may be changed from time to time pursuant to the terms
hereof; provided that the original aggregate amount of the Tranche E
Term Loan Commitments is $140,000,000.
"Tranche E Term Loan Lender": each Lender that has a Tranche E
Term Loan Commitment or which is the holder of a Tranche E Term
Loan.
"Tranche E Term Loan Percentage": as to any Tranche E Term
Loan Lender at any time, the percentage which the aggregate
principal amount of such Lender's Tranche E Term Loans then
outstanding constitutes of the aggregate principal amount of the
Tranche E Term Loans then outstanding.
(b) The definition of "Applicable Margin" contained in Section 1.1
of the Credit Agreement is hereby amended by inserting the following row at the
bottom of the table set forth therein:
Tranche E Term Loans 0.75% 1.75%
(c) The definition of "Commitment" contained in Section 1.1 of the
Credit Agreement is hereby amended to insert the phrase "the Tranche E Term Loan
Commitment," immediately after the phrase "the Tranche D Term Loan Commitment,".
(d) The definition of "Consolidated Fixed Charges" contained in
Section 1.1 of the Credit Agreement is hereby amended to replace the term
"Tranche D Term Loans" with the term "Tranche E Term Loans".
(e) The definition of "Facility" contained in Section 1.1 of the
Credit Agreement is hereby amended (i) to re-letter clause (e) as clause (f) and
(ii) to insert the following new clause (e): "(e) the Tranche E Term Loan
Commitments and the Tranche E Term Loans made thereunder (the "Tranche E Term
Loan Facility"),".
(f) The definition of "Interest Period" contained in Section 1.1 of
the Credit Agreement is hereby amended to replace the phrase "or the Tranche D
Term Loans" with the following phrase: ", the Tranche D Term Loans or the
Tranche E Term Loans".
(g) The definition of "Qualified Trust Indebtedness" contained in
Section 1.1 of the Credit Agreement is hereby amended (i) to replace the term
"Tranche D Term Loans" with the term "Tranche E Term Loans" and (ii) to replace
the term "Restatement Effective Date" with the term "Eighth Amendment Effective
Date".
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(h) The definition of "Qualified Trust Preferred Stock" contained in
Section 1.1 of the Credit Agreement is hereby amended to replace the term
"Tranche D Term Loans" with the term "Tranche E Term Loans".
(i) The definition of "Term Loan Facilities" contained in Section
1.1 of the Credit Agreement is hereby amended (i) to replace the word "and" with
"," and (ii) to insert "and the Tranche E Term Loan Facility" at the end
thereof.
(j) The definition of "Term Loan Lenders" contained in Section 1.1
of the Credit Agreement is hereby amended (i) to replace the word "and" with ","
and (ii) to insert "and the Tranche E Term Loan Lenders" at the end thereof.
(k) The definition of "Term Loans" contained in Section 1.1 of the
Credit Agreement is hereby amended (i) to replace the word "and" with "," and
(ii) to insert "and the Tranche E Term Loans" at the end thereof.
(l) The first sentence of Section 2.1 of the Credit Agreement is
hereby amended to replace the word "and" immediately preceding clause (d)
thereof with "," and to insert the following new clause (e) after the end
thereof: "and (e) subject to the terms and conditions of the Eighth Amendment,
each Tranche E Term Loan Lender severally agrees to make a term loan on the
Eighth Amendment Effective Date (a "Tranche E Term Loan") in an amount not to
exceed the amount of the Tranche E Term Loan Commitment of such Lender".
(m) The second sentence of Section 2.1 of the Credit Agreement is
hereby amended (i) to replace the term "Tranche D Term Loan Commitments" with
the term "Tranche E Term Loan Commitments" and (ii) to replace the term "Third
Amendment Effective Date" with the term "Eighth Amendment Effective Date".
(n) Section 2.2 of the Credit Agreement is hereby amended to insert
the following new clause (v):
"(v) The Borrower shall give the Administrative Agent
irrevocable Notice of Borrowing (which notice must be received
by the Administrative Agent prior to 12:00 noon, New York City
time, one Business Day prior to the anticipated Eighth
Amendment Effective Date) requesting that the Tranche E Term
Loan Lenders make the Tranche E Term Loans on the Eighth
Amendment Effective Date and specifying the amount to be
borrowed. The Tranche E Term Loans made on the Eighth
Amendment Effective Date shall initially be Base Rate Loans or
Eurodollar Loans with the Interest Period determined in
accordance with this Section 2.2(v). Upon receipt of such
notice the Administrative Agent shall promptly notify each
Tranche E Term Loan Lender thereof. Not later than 12:00 noon,
New York City time, on the Eighth Amendment Effective Date
each Tranche E Term Loan Lender shall make available to the
Administrative Agent at the Funding Office an amount in
immediately available funds equal to the Tranche E Term Loan
to be made by such Lender (or notify the Administrative Agent
to convert Tranche D Term Loans to Tranche E
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Term Loans in an aggregate principal amount equal to such
Tranche E Term Loan Lender's pro rata share of Tranche D Term
Loans immediately prior to the effectiveness of the Eighth
Amendment, expressed as a percentage, multiplied by
$140,000,000). The Administrative Agent shall make available
to the Borrower the aggregate of amounts made available to the
Administrative Agent by the Tranche E Term Loan Lenders in
like funds. Tranche E Term Loan Commitments in existence on
the Eighth Amendment Effective Date and not funded on the
Eighth Amendment Effective Date will terminate on such date.
To the extent that Tranche D Term Loans are repaid with
proceeds of Tranche E Term Loans, such Tranche D Term Loans
shall be deemed to have been assigned and transferred to the
Tranche E Term Loan Lenders (to be allocated amongst such
Lenders at the Administrative Agent's discretion) and
thereafter shall be outstanding as Tranche E Term Loans held
by the Tranche E Term Loan Lenders subject to and in
accordance with all terms, conditions and provisions of this
Agreement applicable to the Tranche E Term Loans. The Interest
Period (and the respective Eurodollar Rate) in effect on the
Eighth Amendment Effective Date in respect of the Tranche D
Term Loans that are being converted to Tranche E Term Loans on
the Eighth Amendment Effective Date (the "Current Interest
Period") will continue to be in effect for such Tranche E Term
Loans following the Eighth Amendment Effective Date and will
end on the last day of the Current Interest Period, and for
any Tranche E Term Loans funded on the Eighth Amendment
Effective Date the initial Interest Period will end on the
last day of the Current Interest Period and the Eurodollar
Rate during such initial Interest Period will equal the
Eurodollar Rate applicable to the converted Tranche E Term
Loans during the Current Interest Period."
(o) Section 2.3 of the Credit Agreement is hereby amended to insert
the following clause (e) at the end thereof:
"(e) The Tranche E Term Loan of each Tranche E Term Loan
Lender shall mature in 12 consecutive quarterly installments,
commencing on June 30, 2005, each of which shall be in an amount
equal to such Lender's Tranche E Term Loan Percentage multiplied by
the amount set forth below opposite such installment (which amount
shall be reduced as the result of the application of prepayments in
accordance with Section 2.18):
Installment Principal Amount
------------------- ----------------
June 30, 2005 $350,000
September 30, 2005 $350,000
December 31, 2005 $350,000
March 31, 2006 $350,000
June 30, 2006 $350,000
September 30, 2006 $350,000
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Installment Principal Amount
------------------- ----------------
December 31, 2006 $ 350,000
March 31, 2007 $ 350,000
June 30, 2007 $34,300,000
September 30, 2007 $34,300,000
December 31, 2007 $34,300,000
March 31, 2008 $34,300,000
(p) Section 2.4(c) of the Credit Agreement is hereby amended (i) to
replace the term "Fourth Amendment Effective Date" with the term "Eighth
Amendment Effective Date" and (ii) to replace the term "Tranche D Term Loan
Commitments" with the term "Tranche E Term Loan Commitments".
(q) Section 2.18 of the Credit Agreement is hereby amended (i) to
insert the phrase "Tranche E Term Loan Percentages," in clause (a) immediately
after the phrase "Tranche D Term Loan Percentages," and (ii) to insert the
following proviso immediately at the end of the third sentence of clause (b):
"and, provided further that, each payment (including each prepayment) of the
Tranche E Term Loans shall be applied to the installments of such Tranche E Term
Loans, first, in direct order of maturity for the four quarterly installments
due immediately after the date of such payment and, second, with respect to any
remainder, to the remaining installments thereof in inverse order of maturity".
(r) Section 4.16 of the Credit Agreement is hereby amended to insert
the following sentence at the end thereof: "The proceeds of the Tranche E Term
Loans to be drawn on the Eighth Amendment Effective Date shall be used to repay
on the Eighth Amendment Effective Date the Tranche D Term Loans."
(s) Exhibit G-1 to the Credit Agreement is hereby amended to insert
"[E]" after "[A] [B] [C] [D]" throughout such Exhibit.
2. AMENDMENTS TO CREDIT AGREEMENT RELATING TO ADDITIONAL REVOLVING CREDIT
FACILITY.
(a) The following new definitions are hereby added to Section 1.1 of
the Credit Agreement in the appropriate alphabetical order:
"Additional Revolving Credit Facility": as defined in Section
2.24(a).
"New Lender": as defined in Section 2.24(d).
"New Lender Supplement": as defined in Section 2.24(d).
(b) The Credit Agreement is hereby amended to insert the following
new Section 2.24:
"Section 2.24 Additional Revolving Credit Facility.
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(a) The Borrower and any Lender or Lenders (including any New
Lender) may, with the consent of the Administrative Agent (such
consent not to be unreasonably withheld), on one occasion on or
after the Eighth Amendment Effective Date, agree that such Lender or
Lenders shall provide an additional revolving credit facility (the
"Additional Revolving Credit Facility") by executing and delivering
to the Administrative Agent a notice specifying (i) the aggregate
amount of the Additional Revolving Credit Facility and (ii) the
effective date of the Additional Revolving Credit Facility. The
aggregate amount of the Additional Revolving Credit Facility shall
be in a minimum amount of $5,000,000 and an integral multiple of
$1,000,000 in excess thereof and shall not exceed $50,000,000. The
Borrower agrees to offer to each Revolving Credit Lender the right
to participate ratably in the Additional Revolving Credit Facility.
(b) This Agreement may be amended by the Borrower and the
Administrative Agent to provide for the Additional Revolving Credit
Facility by any Lender or Lenders (including any New Lender). Such
amendment may provide, among other things, that (i) all loans and
other obligations under the Additional Revolving Credit Facility
shall be "Obligations" under and as defined in the Credit Agreement,
(ii) the Additional Revolving Credit Facility and all loans and
other obligations thereunder shall be secured by the Collateral to
the same extent as the Loans and other Obligations under the Credit
Agreement, (iii) the Additional Revolving Credit Facility shall
share ratably in right of payment with the Revolving Credit Facility
and (iv) all loans under the Additional Revolving Credit Facility
shall be for all purposes "Loans" under and as defined in the Credit
Agreement. No additional consents (including consent of the Required
Lenders) shall be required, so long as (x) the aggregate amount of
the Additional Revolving Credit Facility does not exceed
$50,000,000, (y) subject to the terms of this Agreement,
availability under the Additional Revolving Credit Facility
terminates no earlier than the Scheduled Revolving Credit
Termination Date and (z) the Applicable Margin on Revolving
Extensions of Credit under the Additional Revolving Credit Facility
is less than or equal to the Applicable Margin on Revolving
Extensions of Credit under the Revolving Credit Facility.
(c) No Lender shall be obligated to commit or agree to provide
any portion of the Additional Revolving Credit Facility. Neither any
Issuing Lender nor any Agent shall be obligated in any way with
respect to the Additional Revolving Credit Facility unless such
Issuing Lender or such Agent agrees to be so obligated.
(d) Any additional bank, financial institution or other entity
that, with the consent of the Borrower and the Administrative Agent
(such
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consent not to be unreasonably withheld), elects to become a
"Lender" under this Agreement in connection with the Additional
Revolving Credit Facility shall execute a New Lender Supplement
(each, a "New Lender Supplement"), substantially in the form of
Exhibit N, whereupon such bank, financial institution or other
entity (a "New Lender") shall become a Lender for all purposes and
to the same extent as if originally a party hereto and shall be
bound by and entitled to the benefits of this Agreement."
(c) The Credit Agreement is hereby amended by attaching a new
Exhibit N thereto in the form attached hereto as Exhibit N.
3. AMENDMENT TO CREDIT AGREEMENT RELATING TO REPRICING OF REVOLVING CREDIT
LOANS.
Annex A to the Credit Agreement hereby amended and restated in its
entirety as set forth in Annex A attached hereto.
4. CONDITIONS TO EFFECTIVENESS OF THE AMENDMENTS SET FORTH IN SECTIONS 1 AND 2
OF THIS AMENDMENT. The effectiveness of the amendments contained in Sections 1
and 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 "Eighth Amendment Effective Date"); provided, however,
if all of the conditions to the effectiveness of the amendments contained in
Section 3 are satisfied as set forth in Section 5, then the amendments set forth
in Section 2 shall never become effective notwithstanding satisfaction of the
conditions set forth in this Section 4:
(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 6 below
shall be true and correct in all material respects on and as of the Eighth
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 Eighth Amendment Effective Date;
(d) the Administrative Agent shall have received (i) commitments
from banks and other financial institutions with respect to the Tranche E Term
Loans in an aggregate principal amount equal to $140,000,000 and (ii) as
applicable (x) a fully executed Lender Addendum with respect to each such bank
or other financial institution committing to fund such Tranche E Term Loans (and
pursuant to which on the Eighth Amendment Effective Date such bank or other
financial institution shall become a Tranche E Term Loan Lender, for all
purposes under the Credit Agreement) or (y) a fully executed Conversion Notice
in the form attached hereto as Annex 2 with
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respect to each Tranche D Term Lender electing to convert its Tranche D Term
Loans into Tranche E Term Loans (and pursuant to which on the Eighth Amendment
Effective Date a portion of the outstanding principal amount of Tranche D Term
Loans held by such Lender shall convert into Tranche E Term Loans);
(e) the Administrative Agent shall be satisfied that, simultaneously
with the borrowing of the Tranche E Term Loans on the Eighth Amendment Effective
Date, the Tranche D Term Loans will be repaid in full by the Borrower with
proceeds from Tranche E Term Loans, Revolving Credit Loans and/or loans borrowed
under the Additional Revolving Credit Facility;
(f) the Borrower shall have paid to each of the Lenders authorizing
the Administrative Agent to execute this Amendment, an amendment fee equal to
the product of 0.05% multiplied by the sum of such Lender's Revolving Credit
Commitment plus the principal amount of such Lender's Tranche E Term Loans
outstanding immediately after giving effect to this Amendment; and
(g) the Administrative Agent shall have received such other
documents, instruments, certificates, opinions and approvals as it may
reasonably request.
5. CONDITIONS TO EFFECTIVENESS OF THE AMENDMENT SET FORTH IN SECTION 3 OF THIS
AMENDMENT. The amendments contained in Section 3 of this Amendment shall be
effective as of the Eighth Amendment Effective Date upon satisfaction of the
following conditions on or prior to such date:
(a) the Administrative Agent shall have received signed written
authorization from all Revolving Credit 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 executed by each of the
Subsidiary Guarantors;
(b) the Administrative Agent shall be satisfied that, simultaneously
with the borrowing of the Tranche E Term Loans on the Eighth Amendment Effective
Date, the Tranche D Term Loans will be repaid in full by the Borrower with
proceeds from Tranche E Term Loans and Revolving Credit Loans; and
(c) the conditions set forth in Sections 4(b), (c), (d), (f) and(g)
shall have been satisfied.
6. 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
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other organizational 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 or the Consent
or performance 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 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 or the Consent, nor the consummation of the transactions contemplated
hereby and thereby, nor the performance of and compliance with the terms and
provisions hereof or thereof or of the Credit Agreement (as modified hereby) 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.
7. REFERENCE TO AND EFFECT ON CREDIT AGREEMENT.
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(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.
8. COUNTERPARTS. 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.
9. 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.
10. GOVERNING LAW. This Amendment shall be governed by, and construed in
accordance with, the laws of the State of New York.
[Signature page follows]
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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: Chief Executive Officer and President
XXXXXX COMMERCIAL PAPER INC.,
as Administrative Agent and on behalf of the Required
Lenders and all Revolving Credit 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 April 18, 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
Annex 2
CONVERSION NOTICE
Reference is made to (a) the Third Amended and Restated Credit
Agreement dated as of May 3, 2002 (as amended from time to time prior to the
date hereof, the "Credit Agreement"), among Corrections Corporation of America,
a Maryland corporation (the "Borrower"), the banks and other financial
institutions and entities from time to time party thereto (the "Lenders") and
Xxxxxx Commercial Paper Inc., as administrative agent for the Lenders (in such
capacity, the "Administrative Agent") and (b) the proposed Eighth Amendment to
the Credit Agreement (the "Eighth Amendment"). Capitalized terms used but not
otherwise defined herein are used with the meanings attributed thereto in the
Credit Agreement.
The undersigned Lender hereby irrevocably and unconditionally elects
to convert $[______________] of the outstanding principal amount of the Tranche
D Term Loan held by such Lender (such amount being equal to such Lender's pro
rata share of Tranche D Term Loans immediately prior to the effectiveness of the
Eighth Amendment, expressed as a percentage, multiplied by $140,000,000) into a
Tranche E Term Loan (as defined in the Eighth Amendment) in a principal amount
equal to the amount of the Tranche D Term Loan converted hereby, effective only
if, and only as and when the Eighth Amendment becomes effective in accordance
with its terms.
This Conversion Notice shall be governed by, and construed and
interpreted in accordance with, the laws of the state of New York.
This Conversion Notice may be executed by the parties hereto on any
number of separate counterparts, and all of said counterparts taken together
shall be deemed to constitute one and the same instrument. Delivery of an
executed signature page hereof by facsimile transmission shall be effective as
delivery of a manually executed counterpart hereof.
IN WITNESS WHEREOF, the parties hereto have caused the Conversion
Notice to be duly executed and delivered by their proper and duly authorized
officers as of this [__] day of April, 2005.
________________________________
By: ____________________________
Name:
Title:
Annex A
PRICING GRID FOR REVOLVING CREDIT LOANS, SWING LINE LOANS
AND TRANCHE C TERM LOANS
Applicable Margin for Applicable Margin for Base
Eurodollar Loans Rate Loans
--------------------------------- --------------------------------
Revolving Revolving
Credit Loans Credit Loans
Consolidated Tranche C and Swing Line Tranche C and Swing Line Commitment
Leverage Ratio Term Loans Loans Term Loans Loans Fee Rate
---------------------- ---------- -------------- ---------- -------------- ----------
> or = 4.00 2.75% 1.50% 1.75% 0.50% 0.375%
< 4.00 and > or = 3.50 2.50% 1.50% 1.50% 0.50% 0.375%
< 3.50 and > or = 3.00 2.50% 1.50% 1.50% 0.50% 0.375%
< 3.00 2.50% 1.50% 1.50% 0.50% 0.375%
Changes in the Commitment Fee Rate and the Applicable Margin with respect to
Tranche C Term Loans, Revolving Credit Loans and Swing Line Loans resulting from
changes in the Consolidated Leverage Ratio shall become effective on the date
(the "Adjustment Date") on which financial statements are delivered to the
Lenders pursuant to Section 6.1 (but in any event not later than the 45th day
after the end of each of the first three quarterly periods of each fiscal year
or the 90th day after the end of each fiscal year, as the case may be) and shall
remain in effect until the next change to be effected pursuant to this
paragraph. If any financial statements referred to above are not delivered
within the time periods specified above, then, until such financial statements
are delivered, the Consolidated Leverage Ratio as at the end of the fiscal
period that would have been covered thereby shall for the purposes of this
definition be deemed to be greater than 4.0 to 1.0. In addition, at all times
while an Event of Default shall have occurred and be continuing, the
Consolidated Leverage Ratio shall for the purposes of this definition be deemed
to be greater than 4.0 to 1.0. Each determination of the Consolidated Leverage
Ratio pursuant to this definition shall be made with respect to the period of
four consecutive fiscal quarters of the Borrower ending at the end of the period
covered by the relevant financial statements.
EXHIBIT N
FORM OF NEW LENDER SUPPLEMENT
SUPPLEMENT, dated as of _________ ___, 200__ (this "Supplement"), to
the Credit Agreement, dated as of May 3, 2002 (as amended, supplemented or
otherwise modified from time to time, the "Credit Agreement"), among Corrections
Corporation of America, a Maryland corporation (the "Borrower"), the several
banks, financial institutions and other entities from time to time parties
thereto (the "Lenders"), Xxxxxx Commercial Paper Inc., as administrative agent
(in such capacity, 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. Unless otherwise defined herein, terms defined in the Credit Agreement
and used herein shall have the meanings given to them in the Credit Agreement.
WITNESSETH:
WHEREAS, the Credit Agreement provides in Section 2.24(d) thereof
that any bank, financial institution or other entity may become a party to the
Credit Agreement with the consent of the Borrower and the Administrative Agent
(which consent, in the case of the Administrative Agent, shall not be
unreasonably withheld) by executing and delivering to the Borrower and the
Administrative Agent a supplement to the Credit Agreement in substantially the
form of this Supplement; and
WHEREAS, the undersigned now desires to become a party to the Credit
Agreement as a Lender thereunder;
NOW, THEREFORE, the undersigned hereby agrees as follows:
1. The undersigned agrees to be bound by the provisions of the
Credit Agreement, and agrees that it shall, on the date this Supplement is
accepted by the Borrower and the Administrative Agent, become a Lender for
all purposes of the Credit Agreement to the same extent as if originally a
party thereto, with a commitment under the Additional Revolving Credit
Facility of $_____________.
2. The undersigned (a) represents and warrants that it is legally
authorized to enter into this Supplement; (b) confirms that it has
received a copy of the Credit Agreement and each other Loan Document
existing as of the date of this Supplement, together with copies of the
financial statements referred to in Section 6.1 of the Credit Agreement
and such other documents and information as it has deemed appropriate to
make its own credit analysis and decision to enter into this Supplement;
(c) agrees that it has made and will, independently and without reliance
upon any of the Agents or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking action under the Credit
Agreement or any instrument or document furnished pursuant hereto or
thereto; (d) appoints and authorizes the Administrative Agent to take such
action as agent on its behalf and to exercise such powers and discretion
under the Credit Agreement or any instrument or document furnished
pursuant hereto or thereto as are delegated to the
Administrative Agent by the terms thereof, together with such powers as
are incidental thereto; and (e) agrees that it will be bound by the
provisions of the Credit Agreement and each of the other Loan Documents
and will perform in accordance with their terms all the obligations which
by the terms of the Credit Agreement or the other Loan Documents are
required to be performed by it as a Lender including, without limitation,
if it is organized under the laws of a jurisdiction outside the United
States, its obligations pursuant to Section 2.20 of the Credit Agreement.
3. The undersigned's address for notices for the purposes of the
Credit Agreement is as follows:
[insert address, telephone number and facsimile number]
[remainder of page intentionally left blank]
IN WITNESS WHEREOF, the undersigned has caused this Supplement to be
executed and delivered by a duly authorized officer on the date first above
written.
[INSERT NAME OF LENDER]
By: _______________________
Name:
Title:
Accepted this _____ day of
______________, 200_
CORRECTIONS CORPORATION OF AMERICA
By: ____________________________________
Title:
Accepted this ____ day of
______________, 200_
XXXXXX COMMERCIAL PAPER INC.,
as Administrative Agent
By: ___________________________
Title:
