ExhibitΒ 10.44
EXECUTION COPY
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dated as of
AugustΒ 4, 2010
between
THE GEO GROUP, INC.,
as Borrower,
the Lenders referred to herein
and
BNP PARIBAS,
as Administrative Agent
$750,000,000
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BNP PARIBAS SECURITIES CORP.,
as Lead Arranger
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TABLE OF CONTENTS
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ARTICLE I |
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DEFINITIONS |
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SECTION 1.01 Defined Terms |
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1 |
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SECTION 1.02 Classification of Loans and Borrowings |
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29 |
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SECTION 1.03 Terms Generally |
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30 |
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SECTION 1.04 Accounting Terms; GAAP |
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30 |
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SECTION 1.05 Currencies; Currency Equivalents |
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30 |
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ARTICLE II |
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THE CREDITS |
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SECTION 2.01 The Commitments |
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31 |
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SECTION 2.02 Loans and Borrowings |
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32 |
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SECTION 2.03 Requests for Syndicated Borrowings |
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34 |
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SECTION 2.04 Swingline Loans |
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35 |
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SECTION 2.05 Letters of Credit |
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36 |
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SECTION 2.06 Funding of Borrowings |
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41 |
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SECTION 2.07 Interest Elections |
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41 |
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SECTION 2.08 Termination and Reduction of the Commitments |
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43 |
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SECTION 2.09 Repayment of Loans; Evidence of Debt |
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46 |
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SECTION 2.10 Prepayment of Loans |
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48 |
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SECTION 2.11 Fees |
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53 |
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SECTION 2.12 Interest |
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54 |
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SECTION 2.14 Increased Costs |
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56 |
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SECTION 2.15 Break Funding Payments |
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57 |
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SECTION 2.16 Taxes |
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58 |
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SECTION 2.17 Payments Generally; Pro Rata Treatment; Sharing of Setoffs |
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60 |
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SECTION 2.18 Mitigation Obligations; Replacement of Lenders |
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62 |
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SECTION 2.19 Defaulting Lenders |
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63 |
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SECTION 2.20 Illegality |
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65 |
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ARTICLE III |
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REPRESENTATIONS AND WARRANTIES |
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SECTION 3.01 Organization; Powers and Qualifications |
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65 |
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SECTION 3.02 Authorization; Enforceability |
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65 |
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SECTION 3.03 Governmental Approvals; No Conflicts |
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66 |
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SECTION 3.04 Financial Condition; No Material Adverse Change |
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66 |
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SECTION 3.05 Properties |
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67 |
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SECTION 3.06 Litigation |
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67 |
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SECTION 3.07 Environmental Matters |
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67 |
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SECTION 3.08 Compliance with Laws and Agreements; No Defaults |
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67 |
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SECTION 3.09 Government Regulation |
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68 |
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SECTION 3.10 Tax Returns and Payments |
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68 |
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SECTION 3.11 ERISA |
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68 |
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SECTION 3.12 Disclosure |
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68 |
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SECTION 3.13 Margin Stock |
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68 |
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SECTION 3.14 Agreements and Liens |
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68 |
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SECTION 3.15 Material Contracts; Material Government Contracts of the Target Company |
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69 |
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SECTION 3.16 Subsidiaries and Investments |
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69 |
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SECTION 3.17 Real Property |
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70 |
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SECTION 3.18 Solvency |
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70 |
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SECTION 3.19 Employee Relations |
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70 |
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SECTION 3.20 Burdensome Provisions |
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70 |
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ARTICLE IV |
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CONDITIONS |
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SECTION 4.01 Effective Date |
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70 |
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SECTION 4.02 Each Extension of Credit |
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73 |
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SECTION 4.03 Acquisition |
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74 |
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ARTICLE V |
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AFFIRMATIVE COVENANTS |
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SECTION 5.01 Financial Statements and Other Information |
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76 |
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SECTION 5.02 Notices of Material Events |
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78 |
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SECTION 5.03 Existence; Conduct of Business |
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79 |
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SECTION 5.04 Payment of Obligations |
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79 |
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SECTION 5.05 Maintenance of Properties; Insurance |
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79 |
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SECTION 5.06 Books and Records; Inspection Rights |
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80 |
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SECTION 5.07 Compliance with Laws |
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80 |
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SECTION 5.08 Use of Proceeds and Letters of Credit |
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80 |
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SECTION 5.09 Additional Subsidiaries; Restricted and Unrestricted Subsidiaries |
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80 |
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SECTION 5.10 New Collateral |
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82 |
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SECTION 5.11 Further Assurances; Post-Closing Deliverables |
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83 |
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ARTICLE VI |
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NEGATIVE COVENANTS |
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SECTION 6.01 Indebtedness |
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87 |
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SECTION 6.02 Liens |
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88 |
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SECTION 6.03 Fundamental Changes |
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89 |
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SECTION 6.04 Investments |
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91 |
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SECTION 6.05 Restricted Payments |
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92 |
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SECTION 6.06 Transactions with Affiliates |
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93 |
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SECTION 6.07 Restrictive Agreements |
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93 |
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SECTION 6.08 Modifications of Certain Documents |
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94 |
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SECTION 6.09 Certain Financial Covenants |
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94 |
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SECTION 6.10 Limitations on Exchange and Issuance of Equity Interests |
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94 |
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SECTION 6.11 Nature of Business |
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95 |
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SECTION 6.12 Impairment of Security Interest |
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95 |
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SECTION 6.13 Payments and Prepayments of Certain Debt |
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95 |
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ARTICLE VII |
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EVENTS OF DEFAULT |
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SECTION 7.01 Events of Default |
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95 |
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SECTION 7.02 Application of Payments |
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98 |
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ARTICLE VIII |
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AGENCY |
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SECTION 8.01 Administrative Agent |
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99 |
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SECTION 8.02 Bookrunners, Etc. |
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102 |
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ARTICLE IX |
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MISCELLANEOUS |
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SECTION 9.01 Notices |
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102 |
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SECTION 9.02 Waivers; Amendments |
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105 |
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SECTION 9.03 Expenses; Indemnity; Damage Waiver |
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107 |
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SECTION 9.04 Successors and Assigns |
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109 |
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SECTION 9.05 Survival |
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112 |
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SECTION 9.06 Counterparts; Integration; Effectiveness; Lender Addendum |
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113 |
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SECTION 9.07 Severability |
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113 |
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SECTION 9.08 Right of Setoff |
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113 |
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SECTION 9.09 Governing Law; Jurisdiction; Etc. |
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114 |
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SECTION 9.10 WAIVER OF JURY TRIAL |
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114 |
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SECTION 9.11 Headings |
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115 |
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SECTION 9.12 Treatment of Certain Information; Confidentiality |
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115 |
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SECTION 9.13 USA PATRIOT Act |
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116 |
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SECTION 9.14 Interest Rate Limitation |
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116 |
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SECTION 9.15. Judgment Currency |
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116 |
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EXHIBIT A
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β
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Form of Assignment and Assumption |
EXHIBIT B
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β
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Form of Collateral Agreement |
EXHIBIT C
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β
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Form of Guaranty Agreement |
EXHIBIT D
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β
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Form of Collateral Assignment |
EXHIBIT E
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β
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Form of Mortgage |
EXHIBIT F
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β
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Form of Joinder Agreement |
EXHIBIT G
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β
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Form of Opinion of Counsel to the Borrower |
EXHIBIT H
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β
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Form of Opinion of Special Counsel |
EXHIBIT I
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β
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Form of Lender Addendum |
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CREDIT AGREEMENT (this β
Agreementβ) dated as of AugustΒ 4, 2010, between THE GEO
GROUP, INC., a Florida corporation, as borrower (the β
Borrowerβ), the Lenders referred to
herein and BNP PARIBAS, as administrative agent for such Lenders (in such capacity, the
β
Administrative Agentβ).
Β Β Β Β Β Β Β Β Β Β WHEREAS, the Borrower has requested the extension of credit to it in an aggregate principal or
face amount not exceeding $750,000,000 at any one time outstanding, to finance the Acquisition (as
defined below), to refinance certain indebtedness (including all loans under the Existing
Credit
Agreement (as defined below)) and for other purposes; and
Β Β Β Β Β Β Β Β Β Β WHEREAS, the Lenders and the Administrative Agent have agreed to such extensions of credit on
the terms and conditions hereof.
Β Β Β Β Β Β Β Β Β Β NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged by the parties hereto, such parties hereby agree as follows:
ARTICLE I
DEFINITIONS
Β Β Β Β Β Β Β Β Β Β SECTION 1.01 Defined Terms. As used in this Agreement, the following terms have the
meanings specified below:
Β Β Β Β Β Β Β Β Β Β βABRβ, when used in reference to any Loan or Borrowing, refers to whether such Loan,
or the Loans comprising such Borrowing, bear interest at a rate determined by reference to the
Alternate Base Rate.
Β Β Β Β Β Β Β Β Β Β βAcquisitionβ means the acquisition by the Borrower of 100% of the outstanding capital
stock of the Target Company in accordance with the Merger Agreement.
Β Β Β Β Β Β Β Β Β Β βAcquisition Dateβ means the date the Acquisition is consummated in accordance with
the Merger Agreement.
Β Β Β Β Β Β Β Β Β Β βAcquisition Indemnityβ means an agreement between the Borrower and the Target, in
form and substance reasonably satisfactory to the Administrative Agent, pursuant to which, among
other things, (a)Β the Target agrees to issue, immediately prior to the consummation of the
Acquisition at the request of the Borrower following mutual agreement by the Borrower and the
Target that all conditions precedent to the Acquisition have been satisfied, a notice of redemption
of the 10.75% Senior Notes due 2012 issued by the Target Company, (b)Β the Borrower agrees to
indemnify the Target Company for all losses, liabilities, damages and expenses suffered by the
Target in connection with such request if the Acquisition is not consummated within a specified
period after such request and (c)Β the Borrower agrees
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to lend to the Target sufficient funds to
enable the Target to redeem the Target Company Debt pursuant to such notice of redemption if the
Acquisition is not consummated within such specified period after such request.
Β Β Β Β Β Β Β Β Β Β βAdjusted EBITDAβ means, for any period, (a)Β EBITDA for such period minus (b)
the amount, if a positive number, by which the amount of such EBITDA attributable to Unrestricted
Subsidiaries and Other Consolidated Persons minus Non-Recourse Debt Service of the
Unrestricted Subsidiaries and the Other Consolidated Persons exceeds 20% of such EBITDA.
Β Β Β Β Β Β Β Β Β Β βAdjusted LIBO Rateβ means, for the Interest Period for any Eurodollar Borrowing, an
interest rate per annum (rounded upwards, if necessary, to the next 1/100 of 1%) equal to (a)Β the
LIBO Rate for such Interest Period multiplied by (b)Β the Statutory Reserve Rate for such
Interest Period.
Β Β Β Β Β Β Β Β Β Β βAdministrative Agentβ has the meaning assigned thereto in the Preamble hereof.
Β Β Β Β Β Β Β Β Β Β βAdministrative Questionnaireβ means an Administrative Questionnaire in a form
supplied by the Administrative Agent.
Β Β Β Β Β Β Β Β Β Β βAffiliateβ means, with respect to a specified Person, another Person that directly,
or indirectly through one or more intermediaries, Controls or is Controlled by or is under common
Control with the Person specified.
Β Β Β Β Β Β Β Β Β Β βAgreed Foreign Currencyβ means in respect of any Letter of Credit requested to be
issued by an Issuing Lender, Euros, Sterling, Australian Dollars, South African Rand and any other
Foreign Currency approved by such Issuing Lender (each of whom agrees not to withhold such approval
unreasonably) but only if at such time (a)Β such Foreign Currency is freely transferable and
convertible into Dollars in the London foreign exchange market and (b)Β no central bank or other
governmental authorization in the country of issue of such Foreign Currency (including, in the case
of Euros, any authorization by the European Central Bank) is required to permit use of such Foreign
Currency by any Lender for issuing any Letter of Credit or participating in any LC Exposure
hereunder, unless such authorization has been obtained and is in full force and effect.
Β Β Β Β Β Β Β Β Β Β βAlternate Base Rateβ means, for any day, for any Borrowing, a rate per annum equal to
the greater of (a)Β the Prime Rate in effect on such day, (b)Β the Federal Funds Effective Rate for
such day plus 1/2 of 1% and (c)Β the Adjusted LIBO Rate that would apply to a Eurodollar
Borrowing of the same Class as such Borrowing with an Interest Period of one month starting on the
second Business Day following such day, plus 1%. Any change in the Alternate Base Rate due
to a change in the Prime Rate, the Federal Funds Effective Rate or the Adjusted LIBO Rate shall be
effective from and including the effective date of such change in the Prime Rate or the Federal
Funds Effective Rate, as the case may be.
Β Β Β Β Β Β Β Β Β Β βApplicable Percentageβ means (a)Β with respect to any Revolving Credit Lender for
purposes of SectionΒ 2.04 or SectionΒ 2.05 or in respect of any indemnity claim under
SectionΒ 9.03(c) arising out of an action or omission of any Swingline Lender or any Issuing
Lender under this Agreement, the percentage of the total Revolving Credit Commitments represented
by such Revolving Credit Lenderβs Revolving Credit Commitment, and (b)Β with respect to any Lender
in respect of any indemnity
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claim under SectionΒ 9.03(c) arising out of an action or
omission of the Administrative Agent under this Agreement, the percentage of the total Commitments
or Loans of all Classes hereunder represented by the aggregate amount of such Lenderβs Commitments
or Loans of all Classes hereunder; provided that in the
case of SectionΒ 2.19 when a Defaulting Lender shall exist, βApplicable Percentageβ
shall mean the percentage of the total Commitments (disregarding any Defaulting Lenderβs
Commitment) represented by such Lenderβs Commitment. If the Revolving Credit Commitments have
expired or been terminated, the Applicable Percentages shall be determined based upon the Revolving
Credit Commitments most recently in effect, giving effect to any assignments.
Β Β Β Β Β Β Β Β Β Β βApplicable Rateβmeans, (a)Β for Revolving Credit Loans and Tranche A Term Loans, (i)
2.50% per annum in the case of Eurodollar Loans and (ii)Β 1.50% in the case of ABR Loans (including
Swingline Loans), (b)Β for Tranche B Term Loans, (i)Β 3.25% per annum in the case of Eurodollar Loans
and (ii)Β 2.25% in the case of ABR Loans, (c)Β for commitment fees, 0.50% per annum and (d)Β for
Incremental Loans of any Series, such rate or rates of interest as shall be agreed upon at the time
the Incremental Loan Commitments of such Series are established; provided that from and
after DecemberΒ 31, 2010, the βApplicable Rateβ for Revolving Credit Loans, Tranche A Term Loans and
commitment fees shall be the applicable rate per annum set forth below, based upon the Total
Leverage Ratio as of the most recent determination date:
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ABR |
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Eurodollar |
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Applicable |
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Applicable |
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Commitment |
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Category |
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Total Leverage Ratio |
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Rate |
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Rate |
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Fee Rate |
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1 |
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>4.25 to 1.00 |
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2.00 |
% |
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3.00 |
% |
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0.500 |
% |
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2 |
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>3.75 to 1.00 and β€4.25 to 1.00 |
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1.75 |
% |
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2.75 |
% |
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0.500 |
% |
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3 |
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>3.25 to 1.00 and β€3.75 to 1.00 |
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1.50 |
% |
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2.50 |
% |
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0.500 |
% |
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4 |
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>2.50 to 1.00 and β€3.25 to 1.00 |
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1.25 |
% |
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2.25 |
% |
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0.500 |
% |
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5 |
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β€2.50 to 1.00 |
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1.00 |
% |
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2.00 |
% |
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0.375 |
% |
Β Β Β Β Β Β Β Β Β Β For purposes of the foregoing, (i)Β the Total Leverage Ratio shall be determined as of the end
of each fiscal quarter of the Borrower (starting with its fiscal quarter ending nearest to
SeptemberΒ 30, 2010) based upon the Borrowerβs consolidated financial statements delivered pursuant
to SectionΒ 5.01(a) or (b)Β and (ii)Β each change in the Applicable Rate resulting from a
change in the Total Leverage Ratio shall be effective during the period commencing on and including
the date of DecemberΒ 31, 2010 and the date 10 Business Days after delivery to the Administrative
Agent of such consolidated financial statements indicating such change and ending on the date
immediately preceding the effective date of the next such change; provided that the Total
Leverage Ratio shall be deemed to be in Category 1 (A)Β at any time that an Event of Default has
occurred and is continuing and (B)Β if the Borrower fails to deliver the consolidated financial
statements required to be delivered by it pursuant to SectionΒ 5.01(a) or (b),
during the period from the expiration of the time for delivery thereof until such consolidated
financial statements are delivered.
Β Β Β Β Β Β Β Β Β Β Notwithstanding anything to the contrary contained in this definition, the determination of
the Applicable Rate for any period shall be subject to the provisions of SectionΒ 2.12(f).
Β
-4-
Β Β Β Β Β Β Β Β Β Β βApproved Fundβ means any Fund that is administered or managed by (a)Β a Lender, (b)Β an
Affiliate of a Lender or (c)Β an entity or an Affiliate of an entity that administers or manages a
Lender.
Β Β Β Β Β Β Β Β Β Β βAssignment Agreementβ has the meaning set forth in the Collateral Agreement.
Β Β Β Β Β Β Β Β Β Β βAssignment and Assumptionβ means an assignment and assumption entered into by a
Lender and an assignee (with the consent of any party whose consent is required by Section
9.04), and accepted by the Administrative Agent, in substantially the form of ExhibitΒ A or any
other form approved by the Administrative Agent.
Β Β Β Β Β Β Β Β Β Β βAssuming Lenderβ has the meaning assigned to such term in SectionΒ 2.08(e)(i).
Β Β Β Β Β Β Β Β Β Β βAustralian Dollarsβ or βA$β refers to the lawful currency of Australia.
Β Β Β Β Β Β Β Β Β Β βBankruptcy Eventβ means, with respect to any Person, such Person becomes the subject
of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee,
administrator, custodian, assignee for the benefit of creditors or similar Person charged with the
reorganization or liquidation of its business appointed for it, or, in the good faith determination
of the Administrative Agent, has taken any action in furtherance of, or indicating its consent to,
approval of, or acquiescence in, any such proceeding or appointment, provided that a
Bankruptcy Event shall not result solely by virtue of any ownership interest, or the acquisition of
any ownership interest, in such Person by a Governmental Authority or instrumentality thereof,
provided, further, that such ownership interest does not result in or provide such
Person with immunity from the jurisdiction of courts within the United States or from the
enforcement of judgments or writs of attachment on its assets or permit such Person (or such
Governmental Authority or instrumentality) to reject, repudiate, disavow or disaffirm any contracts
or agreements made by such Person.
Β Β Β Β Β Β Β Β Β Β βBasic Documentsβ means, collectively, the Loan Documents and the Merger Agreement.
Β Β Β Β Β Β Β Β Β Β βBoardβ means the Board of Governors of the Federal Reserve System of the United
States of America.
Β Β Β Β Β Β Β Β Β Β βBorrowerβ has the meaning assigned thereto in the Preamble hereof.
Β Β Β Β Β Β Β Β Β Β βBorrowingβ means (a)Β all Syndicated ABR Loans of the same Class, (b)Β all Eurodollar
Loans of the same Class that have the same Interest Period or (c)Β a Swingline Loan.
Β Β Β Β Β Β Β Β Β Β βBorrowing Requestβ means a request by the Borrower for a Syndicated Borrowing in
accordance with SectionΒ 2.03.
Β Β Β Β Β Β Β Β Β Β β
Business Dayβ means any day (a)Β that is not a Saturday, Sunday or other day on which
commercial banks in
New York City are authorized or required by law to remain closed and (b)Β if
such day relates to a borrowing, a continuation or conversion of or into, or the Interest Period
for, a Eurodollar Borrowing, or to a notice by the Borrower with respect to any such borrowing,
payment, prepayment,
Β
-5-
continuation, conversion, or Interest Period, that is also a day on which
dealings in Dollar deposits are carried out in the London interbank market.
Β Β Β Β Β Β Β Β Β Β βCapital Assetβ means any asset that should, in accordance with GAAP, be classified
and accounted for as a capital asset on a consolidated balance sheet of the Borrower, its
Subsidiaries and the Other Consolidated Persons.
Β Β Β Β Β Β Β Β Β Β βCapital Expendituresβ means, for any period, expenditures (including the aggregate
amount of obligations under Capital Leases and Synthetic Leases incurred during such period) made
by the Borrower, any of its Subsidiaries or any Other Consolidated Person to acquire or construct
Capital Assets (including renewals, improvements and replacements) during such period computed in
accordance with GAAP, but excluding Reimbursed Capital Expenditures.
Β Β Β Β Β Β Β Β Β Β βCapital Leaseβ means any lease of any property by the Borrower, any of its
Subsidiaries or any Other Consolidated Person, as lessee, that should, in accordance with GAAP, be
classified and accounted for as a capital lease on a consolidated balance sheet of the Borrower,
its Subsidiaries and the Other Consolidated Persons.
Β Β Β Β Β Β Β Β Β Β βCasualty Eventβ means, with respect to any property of any Person, any loss of or
damage to, or any condemnation or other taking of, such property for which such Person receives
insurance proceeds, or proceeds of a condemnation award or other compensation.
Β Β Β Β Β Β Β Β Β Β βChange in Controlβ means (a)Β the acquisition of ownership, directly or indirectly,
beneficially or of record, by any Person or group (within the meaning of the Securities Exchange
Act of 1934 and the rules of the Securities and Exchange Commission thereunder as in effect on the
date hereof), of shares representing more than 30% of the aggregate ordinary voting power
represented by the issued and outstanding capital stock of the Borrower; (b)Β the occupation of a
majority of the seats (other than vacant seats) on the board of directors of the Borrower over a
period of shorter than or equal to 24Β months by Persons who were neither (i)Β nominated by the board
of directors of the Borrower nor (ii)Β appointed by directors so nominated; or (c)Β the occurrence of
any βchange in controlβ as defined in any indenture or other instrument evidencing any Indebtedness
in excess of $10,000,000 obligating the Borrower (at the option of one or more holders of such
Indebtedness or otherwise) to repurchase, redeem or repay all or any part of such Indebtedness.
Β Β Β Β Β Β Β Β Β Β βChange in Lawβ means the occurrence, after the date of this Agreement, of any of the
following: (a)Β the adoption or taking effect of any law, rule, regulation or treaty, (b)Β any
change in any law, rule, regulation or treaty or in the administration, interpretation or
application thereof by any Governmental Authority or (c)Β the making or issuance of any request,
guideline or directive (whether or not having the force of law) by any Governmental Authority.
Β Β Β Β Β Β Β Β Β Β βClassβ, when used in reference to any Loan or Borrowing, refers to whether such Loan,
or the Loans comprising such Borrowing, are Revolving Credit Loans, Tranche A Term Loans, Tranche B
Term Loans, Incremental Loans of the same Series or Swingline Loans and, when used in reference to
any Commitment, refers to whether such Commitment is a Revolving Credit Commitment, Tranche A Term
Loan Commitment, Tranche B Term Loan Commitment or Incremental Loan Commitment.
Β
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Β Β Β Β Β Β Β Β Β Β βCodeβ means the Internal Revenue Code of 1986.
Β Β Β Β Β Β Β Β Β Β βCollateral Accountβ has the meaning assigned to such term in SectionΒ 2.05(k).
Β Β Β Β Β Β Β Β Β Β βCollateral Agreementβ means the Collateral Agreement substantially in the form of
ExhibitΒ B among the Borrower, each Restricted Domestic Subsidiary and the Administrative Agent.
Β Β Β Β Β Β Β Β Β Β βCollateral Assignmentβ means the Collateral Assignment Agreement substantially in the
form of ExhibitΒ D among the Borrower, certain of its Restricted Subsidiaries and the Administrative
Agent.
Β Β Β Β Β Β Β Β Β Β βCommitmentβ means a Revolving Credit Commitment, Tranche A Term Loan Commitment,
Tranche B Term Loan Commitment or Incremental Loan Commitment, or any combination thereof (as the
context requires).
Β Β Β Β Β Β Β Β Β Β βCommitment Increase Dateβ has the meaning assigned to such term in Section
2.08(e)(i).
Β Β Β Β Β Β Β Β Β Β βControlβ means the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of a Person, whether through the ability to
exercise voting power, by contract or otherwise. βControllingβ and βControlledβ
have meanings correlative thereto.
Β Β Β Β Β Β Β Β Β Β βCredit Partyβ means the Administrative Agent, any Issuing Lender, any Swingline
Lender or any other Lender.
Β Β Β Β Β Β Β Β Β Β βCurrencyβ means Dollars or any Foreign Currency.
Β Β Β Β Β Β Β Β Β Β βDebt Incurrenceβ means the incurrence by the Borrower or any of its Restricted
Subsidiaries after the Effective Date of any Indebtedness, other than Indebtedness permitted by
SectionΒ 6.01.
Β Β Β Β Β Β Β Β Β Β βDefaultβ means any event or condition which constitutes an Event of Default or which
with the giving of notice, the lapse of time or both would, unless cured or waived, become an Event
of Default.
Β Β Β Β Β Β Β Β Β Β βDefaulting Lenderβ means any Lender that (a)Β has failed, within two Business Days of
the date required to be funded or paid, to (i)Β fund any portion of its Loans, (ii)Β if such Lender
is a Revolving Credit Lender, fund any portion of its participations in Letters of Credit or
Swingline Loans or (iii)Β pay over to any Credit Party any other amount required to be paid by it
hereunder, unless, in the case of clause (i) above, such Lender notifies the Administrative
Agent in writing that such failure is the result of such Lenderβs good faith determination that a
condition precedent to funding (specifically identified and including the particular breach, if
any) has not been satisfied, (b)Β has notified the Borrower or any Credit Party in writing, or has
made a public statement to the effect, that it does not intend or expect to comply with any of its
funding obligations under this Agreement (unless such writing or public statement indicates that
such position is based on such Lenderβs good faith determination that a condition precedent
(specifically identified and including the particular default, if any) to funding a loan under this
Agreement cannot be satisfied) or generally under other agreements in which it commits to extend
credit, (c)Β has
Β
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failed, within three Business Days after request by a Credit Party, acting in good faith, to
provide a certification in writing from an authorized officer of such Lender that it will comply
with its obligations (and is financially able to meet such obligations) to fund prospective Loans
and, if such Lender is a Revolving Credit Lender, participations in then outstanding Letters of
Credit and Swingline Loans under this Agreement, provided that such Lender shall cease to
be a Defaulting Lender pursuant to this clause (c) upon such Credit Partyβs receipt of such
certification in form and substance satisfactory to it and the Administrative Agent, or (d)Β has
become the subject of a Bankruptcy Event.
Β Β Β Β Β Β Β Β Β Β βDisclosed Mattersβ means the actions, suits and proceedings disclosed in the
Disclosure Supplement.
Β Β Β Β Β Β Β Β Β Β βDisclosure Supplementβ means the Disclosure Supplement dated as of the date hereof
heretofore furnished to the Administrative Agent and the Lenders.
Β Β Β Β Β Β Β Β Β Β βDispositionβ means any sale, assignment, transfer or other disposition of any
property (whether now owned or hereafter acquired) by the Borrower or any of its Restricted
Subsidiaries to any Person other than the Borrower or any of its Restricted Subsidiaries, excluding
any sale, assignment, transfer or other disposition of any property sold or disposed of in the
ordinary course of business and on ordinary business terms.
Β Β Β Β Β Β Β Β Β Β βDollar Equivalentβ means, on any date of determination, (i)Β with respect to an amount
denominated in Dollars, such Dollar amount and (ii)Β with respect to an amount denominated in any
Foreign Currency, the amount of Dollars that would be required to purchase such amount of such
Foreign Currency on such date, based upon the rate appearing on the applicable page of the Reuters
Screen (or on any successor or substitute page of such screen, or any successor to or substitute
for such screen, providing rate quotations comparable to those currently provided on such page of
such screen, as determined by the Administrative Agent from time to time for purposes of) providing
quotations of exchange rates applicable to the sale of such Foreign Currency in the London foreign
exchange market at approximately 11.00 a.m., London Time, for delivery two days later.
Β Β Β Β Β Β Β Β Β Β βDollarsβ or β$β refers to lawful money of the United States of America.
Β Β Β Β Β Β Β Β Β Β βDomestic Subsidiaryβ means a Subsidiary of the Borrower that is organized under the
laws of the United States of America, any State therein or the District of Columbia.
Β Β Β Β Β Β Β Β Β Β βEBITDAβ means, for any period, Net Income for such period plus the sum of the
following determined on a consolidated basis, without duplication, for the Borrower and its
Subsidiaries and Other Consolidated Persons in accordance with GAAP: (a)Β the sum of the following
to the extent deducted in determining Net Income: (i)Β income and franchise taxes, (ii)Β Interest
Expense, (iii)Β amortization, depreciation and other non-cash charges (excluding insurance
reserves), (iv)Β extraordinary losses and (v)Β an amount (not exceeding $10,000,000) equal to the
aggregate amount of start-up and transition costs incurred during such period in connection with
Facilities less (b)Β to the extent added in determining Net Income, interest income and any
extraordinary gains. If the Acquisition or any Permitted Acquisition is consummated at any time
during a period for which EBITDA is calculated, EBITDA for
such period shall be calculated on a Pro Forma Basis and, to the extent deducted in
Β
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determining Net Income for such period, the amount of transaction costs and expenses relating to
the Acquisition or such Permitted Acquisition, as the case may be, shall be added to EBITDA for
such period.
Β Β Β Β Β Β Β Β Β Β βEffective Dateβ means the date on which the conditions specified in Section
4.01 are satisfied (or waived in accordance with SectionΒ 9.02).
Β Β Β Β Β Β Β Β Β Β βEMU Legislationβ means legislation enacted by the European Unionβs Economic and
Monetary Union.
Β Β Β Β Β Β Β Β Β Β βEnvironmental Lawsβ means all laws, rules, regulations, codes, ordinances, orders,
decrees, judgments, injunctions, notices or binding agreements issued, promulgated or entered into
by any Governmental Authority, relating in any way to the environment, preservation or reclamation
of natural resources, the management, release or threatened release of any Hazardous Materials or
human health matters.
Β Β Β Β Β Β Β Β Β Β βEnvironmental Liabilityβ means any liability, contingent or otherwise (including any
liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the
Borrower or any Restricted Subsidiary directly or indirectly resulting from or based upon (a)
violation of any Environmental Law, (b)Β the generation, use, handling, transportation, storage,
treatment, disposal or permitting or arranging for the disposal of any Hazardous Materials, (c)
exposure to any Hazardous Materials, (d)Β the release or threatened release of any Hazardous
Materials into the environment or (e)Β any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the foregoing.
Β Β Β Β Β Β Β Β Β Β βEquity Interestsβ means shares of capital stock, partnership interests, membership
interests in a limited liability company, beneficial interests in a trust or other equity ownership
interests in a Person, and any Equity Rights entitling the holder thereof to purchase or acquire
any such equity interest.
Β Β Β Β Β Β Β Β Β Β βEquity Issuanceβ means (a)Β any issuance or sale by the Borrower after the Effective
Date of any of its Equity Interests (other than any Equity Interests issued to directors, officers
or employees of the Borrower or any of its Restricted Subsidiaries pursuant to employee benefit
compensation, purchase or incentive plans established in the ordinary course of business and any
capital stock of the Borrower issued upon the exercise, exchange or conversion of such Equity
Interests) or (b)Β the receipt by the Borrower or any of its Restricted Subsidiaries after the
Effective Date of any capital contribution (whether or not evidenced by any equity security issued
by the recipient of such contribution); provided that Equity Issuance shall not include (x)
any such issuance or sale by any Subsidiary of the Borrower to the Borrower or any wholly owned
Restricted Subsidiary of the Borrower or (y)Β any capital contribution by the Borrower or any wholly
owned Restricted Subsidiary of the Borrower to any Subsidiary of the Borrower, or (z)Β any capital
contribution by any holder of Equity Interests in any Restricted Subsidiary.
Β Β Β Β Β Β Β Β Β Β βEquity Rightsβ means, with respect to any Person, any subscriptions, options,
warrants, commitments, preemptive rights or agreements of any kind (including any shareholdersβ or
voting trust
Credit
Agreement
Β
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agreements) for the issuance, sale, registration or voting of, or securities
convertible into, any additional shares of capital stock of any class, or partnership or other
ownership interests of any type in, such Person.
Β Β Β Β Β Β Β Β Β Β βERISAβ means the Employee Retirement Income Security Act of 1974.
Β Β Β Β Β Β Β Β Β Β βERISA Affiliateβ means any trade or business (whether or not incorporated) that,
together with the Borrower, is treated as a single employer under Section 414(b) or (c)Β of the
Code, or, solely for purposes of SectionΒ 302 of ERISA and SectionΒ 412 of the Code, is treated as a
single employer under SectionΒ 414 of the Code.
Β Β Β Β Β Β Β Β Β Β βERISA Eventβ means (a)Β any βreportable eventβ, as defined in SectionΒ 4043 of ERISA or
the regulations issued thereunder with respect to a Plan (other than an event for which the 30-day
notice period is waived); (b)Β the failure to satisfy with respect to any Plan the βminimum funding
standardβ (as defined in SectionΒ 412 of the Code or SectionΒ 302 of ERISA), whether or not waived;
(c)Β the filing pursuant to Section 412(c) of the Code or Section 302(c) of ERISA of an application
for a waiver of the minimum funding standard with respect to any Plan; (d)Β the incurrence by the
Borrower or any of its ERISA Affiliates of any liability under Title IV of ERISA with respect to
the termination of any Plan; (e)Β the receipt by the Borrower or any ERISA Affiliate from the PBGC
or a plan administrator of any notice relating to an intention to terminate any Plan or Plans or to
appoint a trustee to administer any Plan; (f)Β the incurrence by the Borrower or any of its ERISA
Affiliates of any liability with respect to the withdrawal or partial withdrawal from any Plan or
Multiemployer Plan; or (g)Β the receipt by the Borrower or any ERISA Affiliate of any notice
concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is,
or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA.
Β Β Β Β Β Β Β Β Β Β βEuroβ or ββ¬β refers to the single currency of the European Union as
constituted by the Treaty on European Union and as referred to in EMU Legislation.
Β Β Β Β Β Β Β Β Β Β βEurodollarβ, when used in reference to any Loan or Borrowing, refers to whether such
Loan, or the Loans comprising such Borrowing, bear interest at a rate determined by reference to
the Adjusted LIBO Rate.
Β Β Β Β Β Β Β Β Β Β βEvent of Defaultβ has the meaning assigned to such term in ArticleΒ VII.
Β Β Β Β Β Β Β Β Β Β βExcess Cash Flowβ means, for any period (without duplication) the sum of (a)Β Adjusted
EBITDA (excluding from the calculation thereof the effect, if any, of the last sentence of the
definition of βEBITDAβ) for such period minus (b)Β the sum (without duplication) of (i)
Capital Expenditures (excluding Capital Expenditures to the extent financed with the proceeds of
Indebtedness, or constituting Capital Lease obligations or Synthetic Lease obligations) during such
period) plus (ii)Β Interest Expense and the amount of all regularly scheduled payments or
prepayments of principal of Indebtedness (including the principal component of any payments in
respect of Capital Leases and Synthetic Leases)
made by the Borrower, its Subsidiaries and the Other Consolidated Persons during such period
plus (iii)Β taxes of the Borrower, its Subsidiaries and the Other Consolidated Persons for
such period plus (iv)Β Non-Recourse Debt Service for such period plus (v)Β 50% of the
amount of Restricted Payments made
Credit
Agreement
Β
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in cash during such period that were otherwise permitted to be
made hereunder plus (vi)Β without duplication, the cash consideration paid, plus all
transaction costs paid in cash, by the Borrower, its Subsidiaries and the Other Consolidated
Persons during such period in respect of the Acquisition or any Permitted Acquisition minus
(in the case of increases) or plus (in the case of decreases) (c)Β any change in Working
Capital from the first day through the last day of such period.
Β Β Β Β Β Β Β Β Β Β βExcluded Propertyβ means:
Β Β Β Β Β (i) voting Equity Interests of any direct Foreign Subsidiary of the Borrower or of any
Domestic Subsidiary in excess of 65% of all of the outstanding voting Equity Interests of
such Foreign Subsidiary;
Β Β Β Β Β (ii) rights under any contracts, leases or other instruments that contain a valid and
enforceable prohibition on assignment of such rights (except to the extent that any such
prohibition would be rendered ineffective pursuant to SectionΒ 9-406, 9-407, 9-408 or 9-409
of the UCC of any relevant jurisdiction or any other applicable law or principles of
equity), but only for so long as such prohibition exists and is effective and valid; and
Β Β Β Β Β (iii) property and assets owned by the Borrower or any Guarantor that are the subject
of Liens permitted by SectionΒ 6.02(d) hereof for so long as such Liens are in
effect, if the Indebtedness secured thereby constitutes Indebtedness permitted by
SectionΒ 6.01(f) hereof, the agreements or instruments evidencing or governing such
Indebtedness prohibit the Loans from being secured thereby and no part of the Loans and no
Letter of Credit was used to finance the acquisition, construction or improvement of such
assets.
Β Β Β Β Β Β Β Β Β Β βExcluded Taxesβ means, with respect to (each of which shall be considered a βPayeeβ)
the Administrative Agent, any Lender or any Issuing Lender or any other recipient of any payment to
be made by or on account of any obligation of the Borrower hereunder, (a)Β taxes imposed on or
measured by its overall net income (however denominated), and franchise taxes imposed on it (in
lieu of net income taxes), by the jurisdiction (or any political subdivision thereof) under the
laws of which such recipient is organized or in which its principal office is located or, in the
case of any Lender, in which its applicable lending office is located, (b)Β any branch profits taxes
imposed by the United States of America or any similar tax imposed by any other jurisdiction in
which the Borrower is located, (c)Β any United States backup withholding tax that is required by the
Code to be withheld from amounts payable to a recipient that has failed to comply with Section
2.16(e), and (d)Β in the case of a Foreign Payee (other than an assignee pursuant to a request
by the Borrower under SectionΒ 2.18(b)), any withholding tax that is imposed on amounts
payable to such Foreign Payee (including fees payable pursuant to SectionΒ 2.11) pursuant to
the Code, treasury regulations or treaties (including officially published interpretations and
guidelines), in each case as in place at the time such Foreign Payee becomes a party hereto (or
designates a new lending office) or is attributable to such Foreign Payeeβs failure or inability
(other than as a result of a Change in Law) to comply with SectionΒ 2.16(e), except to the
extent that such Foreign Payee (or its
assignor, if any) was entitled, at the time of designation of a new lending office (or
assignment), to receive additional amounts from the Borrower with respect to such withholding tax
pursuant to SectionΒ 2.16(a).
Credit
Agreement
Β
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Β Β Β Β Β Β Β Β Β Β βExisting Cornell Credit Agreementβ means the Amended and Restated Credit Agreement
dated as of OctoberΒ 10, 2007 by and among the Target Company, certain of its Subsidiaries, JPMorgan
Chase Bank, N.A., as administrative agent, Bank of America, N.A., as syndication agent, and the
lenders party thereto.
Β Β Β Β Β Β Β Β Β Β βExisting Credit Agreementβ means the Third Amended and Restated Credit Agreement
dated as of JanuaryΒ 24, 2007 by and among the Borrower, BNP Paribas, as administrative agent, and
the lenders party thereto.
Β Β Β Β Β Β Β Β Β Β βFacilityβ means a correctional, detention, mental health or other facility the
principal function of which is to carryout a Permitted Business.
Β Β Β Β Β Β Β Β Β Β β
Federal Funds Effective Rateβ means, for any day, the weighted average (rounded
upwards, if necessary, to the next 1/100 of 1%) of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal funds brokers, as
published on the next succeeding Business Day by the Federal Reserve Bank of
New York, or, if such
rate is not so published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such transactions received
by the Administrative Agent from three Federal funds brokers of recognized standing selected by it.
Β Β Β Β Β Β Β Β Β Β βFinancial Officerβ means the chief financial officer, principal accounting officer,
treasurer or controller of the Borrower.
Β Β Β Β Β Β Β Β Β Β βForeign Currencyβ means at any time any Currency other than Dollars.
Β Β Β Β Β Β Β Β Β Β βForeign Currency Equivalentβ means, with respect to any amount in Dollars, the amount
of any Foreign Currency that could be purchased with such amount of Dollars using the reciprocal of
the foreign exchange rate(s) specified in the definition of the term βDollar Equivalentβ, as
determined by the Administrative Agent.
Β Β Β Β Β Β Β Β Β Β βForeign Lenderβ means any Lender that is organized under the laws of a jurisdiction
other than that in which the Borrower is resident for tax purposes. For purposes of this
definition, the United States of America, each State thereof and the District of Columbia shall be
deemed to constitute a single jurisdiction.
Β Β Β Β Β Β Β Β Β Β βForeign Payeeβ means any Payee that is organized under the laws of a jurisdiction
other than that in which the Borrower is resident for tax purposes. For purposes of this
definition, the United States of America, each State thereof and the District of Columbia shall be
deemed to constitute a single jurisdiction.
Β Β Β Β Β Β Β Β Β Β βForeign Subsidiaryβ means any Subsidiary of the Borrower that is not a Domestic
Subsidiary.
Credit
Agreement
Β
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Β Β Β Β Β Β Β Β Β Β βFundβ means any Person (other than a natural person) that is (or will be) engaged in
making, purchasing, holding or otherwise investing in commercial loans and similar extensions of
credit in the ordinary course of its business.
Β Β Β Β Β Β Β Β Β Β βGAAPβ means generally accepted accounting principles in the United States of America.
Β Β Β Β Β Β Β Β Β Β βGEO Acquisition Subsidiaryβ means GEO Acquisition III, Inc., a wholly-owned
Restricted Subsidiary created by the Borrower to merge with the Target Company in order to
consummate the Acquisition.
Β Β Β Β Β Β Β Β Β Β βGovernment Contractβ means a contract between the Borrower or any Restricted
Subsidiary and a Governmental Authority located in the United States or all obligations of any such
Governmental Authority as account debtor arising under any Account (as defined in the UCC) now
existing or hereafter arising owing to the Borrower or any Restricted Subsidiary.
Β Β Β Β Β Β Β Β Β Β βGovernmental Approvalsβ means all authorizations, consents, approvals, licenses and
exemptions of, registrations and filings with, and reports to, any Governmental Authority.
Β Β Β Β Β Β Β Β Β Β βGovernmental Authorityβ means the government of the United States of America or any
other nation, or of any political subdivision thereof, whether state or local, and any agency,
authority, instrumentality, regulatory body, court, central bank or other entity exercising
executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government (including any supra-national bodies such as the European Union or the
European Central Bank).
Β Β Β Β Β Β Β Β Β Β βGuaranteeβ of or by any Person (the βguarantorβ) means any obligation,
contingent or otherwise, of the guarantor guaranteeing or having the economic effect of
guaranteeing any Indebtedness or other obligation of any other Person (the βprimary
obligorβ) in any manner, whether directly or indirectly, and including (i)Β any obligation of
the guarantor, direct or indirect, (a)Β to purchase or pay (or advance or supply funds for the
purchase or payment of) such Indebtedness or other obligation or to purchase (or to advance or
supply funds for the purchase of) any security for the payment thereof, (b)Β to purchase or lease
property, securities or services for the purpose of assuring the owner of such Indebtedness or
other obligation of the payment thereof, (c)Β to maintain working capital, equity capital or any
other financial statement condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (d)Β as an account party in respect of any
letter of credit or letter of guaranty issued to support such Indebtedness or obligation and (ii)
any Lien on any assets of the guarantor securing payment of Indebtedness or other obligations of
the primary obligor; provided that the term Guarantee shall not include endorsements for
collection or deposit in the ordinary course of business; provided, that the Acquisition
Indemnity shall not constitute a Guarantee hereunder.
Β Β Β Β Β Β Β Β Β Β βGuarantorsβ means the Restricted Domestic Subsidiaries and any other Person which,
after the Effective Date, becomes a party to the Guaranty Agreement pursuant to a supplement to the
Guaranty Agreement.
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Β Β Β Β Β Β Β Β Β Β βGuaranty Agreementβ means the Guaranty Agreement substantially in the form of Exhibit
C between the Borrower, the Guarantors and the Administrative Agent.
Β Β Β Β Β Β Β Β Β Β βHazardous Materialsβ means all explosive or radioactive substances or wastes and all
hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum
distillates, asbestos or asbestos containing materials, polychlorinated biphenyls, radon gas,
infectious or medical wastes and all other substances or wastes of any nature regulated or with
respect to which liability or standards of conduct are imposed pursuant to any Environmental Law.
Β Β Β Β Β Β Β Β Β Β βHedge Counterpartyβ means each Person that is a Lender or an Affiliate of a Lender
(i)Β at the time it enters into a Hedging Agreement or (ii)Β party to a Hedging Agreement outstanding
as of the Effective Date, in each case with the Borrower or any Restricted Subsidiary, in its
capacity as a party thereto.
Β Β Β Β Β Β Β Β Β Β βHedging Agreementβ means any agreement with respect to any swap, forward, future or
derivative transaction or option or similar agreement involving, or settled by reference to, one or
more rates, currencies, commodities, equity or debt instruments or securities, or economic,
financial or pricing indices or measures of economic, financial or pricing risk or value or any
similar transaction or any combination of these transactions; provided that no phantom
stock or similar plan providing for payments only on account of services provided by current or
former directors, officers, employees or consultants of the Borrower or its Subsidiaries shall be a
Hedging Agreement.
Β Β Β Β Β Β Β Β Β Β βIncreasing Lenderβ has the meaning assigned to such term in Section
2.08(e)(i).
Β Β Β Β Β Β Β Β Β Β βIncrementalβ when used in reference to any Loan or Borrowing, refers to whether such
Loan, or the Loans comprising such Borrowing, are made pursuant to SectionΒ 2.01(d).
Β Β Β Β Β Β Β Β Β Β βIncremental Lendersβ means, in respect of any Series of Incremental Loans, the
Lenders (or other financial institutions referred to in SectionΒ 2.01(d)) whose offers to
make Incremental Loans of such Series shall have been accepted by the Borrower in accordance with
the provisions of SectionΒ 2.01(d).
Β Β Β Β Β Β Β Β Β Β βIncremental Loan Commitmentβ means, with respect to each Lender, the commitment, if
any, of such Lender to make Incremental Loans of any Series that is accepted by the Borrower in
accordance with the provisions of SectionΒ 2.01(d), SectionΒ 2.08 or Section
2.10(b) reduced or increased from time to time pursuant to assignments by or to such Lender
pursuant to SectionΒ 9.04.
Β Β Β Β Β Β Β Β Β Β βIndebtednessβ of any Person means, without duplication, (a)Β all liabilities,
obligations and indebtedness of such Person for borrowed money including, but not limited to,
obligations evidenced by bonds, debentures, notes or other similar instruments of any such Person,
(b)Β all obligations of such
Person to pay the deferred purchase price of property or services, except trade payables
arising in the ordinary course of business not more than 90Β days past due or payable on such later
date as is customary in the trade, (c)Β all obligations of such Person as lessee under Capital
Leases, (d)Β all Indebtedness of any other Person secured by a Lien on any asset of such Person, (e)
all Guarantees by such Person of Indebtedness of others (including all Guarantees by the Borrower
or any Restricted Subsidiary of
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Unrestricted Subsidiary Debt), (f)Β all obligations, contingent or
otherwise, of such Person with respect to letters of credit (supporting payment of Indebtedness),
whether or not drawn, including, without limitation, reimbursement obligations related thereto, and
bankerβs acceptances issued for the account of such Person, (g)Β all obligations of such Person to
redeem, repurchase, exchange, defease or otherwise make payments in respect of Equity Interests of
such Person, (h)Β all outstanding payment obligations with respect to Synthetic Leases, (i)Β the
outstanding attributed principal amount under any asset securitization program and (j)Β all
outstanding payment obligations with respect to performance surety bonds that have been drawn upon.
The Indebtedness of any Person shall include the Indebtedness of any other entity (including any
partnership in which such Person is a general partner) to the extent such Person is liable therefor
as a result of such Personβs ownership interest in or other relationship with such entity, except
to the extent the terms of such Indebtedness provide that such Person is not liable therefor.
Β Β Β Β Β Β Β Β Β Β βIndemnified Taxesβ means Taxes other than Excluded Taxes.
Β Β Β Β Β Β Β Β Β Β βInterest Election Requestβ means a request by the Borrower to convert or continue a
Syndicated Borrowing in accordance with SectionΒ 2.07.
Β Β Β Β Β Β Β Β Β Β βInterest Expenseβ means, for any period, the sum, for the Borrower and its
Subsidiaries and Other Consolidated Persons (determined on a consolidated basis without duplication
in accordance with GAAP), of the following: (a)Β all interest and fees in respect of Indebtedness
(including the interest component of any payments in respect of Capital Leases and Synthetic Leases
accounted for as interest under GAAP) accrued or capitalized during such period (whether or not
actually paid during such period) plus (b)Β the net amount payable (or minus the net
amount receivable) under Hedging Agreements relating to interest during such period (whether or not
actually paid or received during such period) minus (c)Β interest income during such period
(whether or not actually received during such period).
Β Β Β Β Β Β Β Β Β Β βInterest Payment Dateβ means (a)Β with respect to any Syndicated ABR Loan, each
Quarterly Date, (b)Β with respect to any Eurodollar Loan, the last day of each Interest Period
therefor and, in the case of any Interest Period of more than three monthsβ duration, each day
prior to the last day of such Interest Period that occurs at three-month intervals after the first
day of such Interest Period, and (c)Β with respect to any Swingline Loan, the day that such Loan is
required to be repaid.
Β Β Β Β Β Β Β Β Β Β βInterest Periodβ means, for any Eurodollar Loan or Borrowing, the period commencing
on the date of such Loan or Borrowing and ending on the numerically corresponding day in the
calendar month that is one, two, three or six months thereafter (or on such other day as all of the
Lenders holding such Loan or Borrowing may agree in their sole discretion) or for any period ending
on or prior to the 30th day following the Effective Date, one, two or three weeks
thereafter, in each case, as specified in the applicable Borrowing Request or Interest Election
Request; provided that (i)Β if any Interest Period would end on a day other than a Business
Day, such Interest Period shall be extended to the next succeeding
Business Day unless such next succeeding Business Day would fall in the next calendar month,
in which case such Interest Period shall end on the next preceding Business Day, (ii)Β any Interest
Period that commences on the last Business Day of a calendar month (or on a day for which there is
no numerically corresponding day in the last calendar month of such Interest Period) shall end on
the last Business Day of the last calendar month of such Interest Period and (iii)Β unless otherwise
agreed to by the Administrative Agent, until the date falling on the 30th day following
the Effective Date, all Interest
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Periods for all Eurodollar Borrowings shall be coterminous and no
Interest Period may commence before and end after such 30th day. For purposes hereof,
the date of a Loan or Borrowing initially shall be the date on which such Loan or Borrowing is made
and thereafter shall be the effective date of the most recent conversion or continuation of such
Loan or Borrowing.
Β Β Β Β Β Β Β Β Β Β βInvestmentβ means, for any Person: (a)Β the acquisition (whether for cash, property,
services or securities or otherwise) of capital stock, bonds, notes, debentures, partnership or
other ownership interests or other securities of any other Person or any agreement to make any such
acquisition (including any βshort saleβ or any sale of any securities at a time when such
securities are not owned by the Person entering into such sale, but excluding any such agreement
expressly subject to a condition that such acquisition shall not be consummated if such acquisition
would constitute a Default); (b)Β the making of any deposit with, or advance, loan or other
extension of credit to, any other Person (including the purchase of property from another Person
subject to an understanding or agreement, contingent or otherwise, to resell such property to such
Person), but excluding any such advance, loan or extension of credit having a term not exceeding 90
days arising in connection with the sale of inventory or supplies by such Person in the ordinary
course of business; (c)Β the entering into of any Guarantee of, or other contingent obligation with
respect to, Indebtedness or other liability of any other Person and (without duplication) any
amount committed to be advanced, lent or extended to such Person; or (d)Β the entering into of any
Hedging Agreement.
Β Β Β Β Β Β Β Β Β Β βIssuing Lendersβ means (i)Β BNP Paribas or (ii)Β any Lender selected by the Borrower
that is reasonably acceptable to the Administrative Agent and consents to be an βIssuing Lenderβ
hereunder, and their successors in such capacity as provided in SectionΒ 2.05(j). An
Issuing Lender may, in its discretion, arrange for one or more Letters of Credit to be issued by
Affiliates of such Issuing Lender, in which case the term βIssuing Lenderβ shall include any such
Affiliate with respect to Letters of Credit issued by such Affiliate. Each reference herein to
βthe Issuing Lenderβ shall refer to the respective Issuing Lender of a Letter of Credit.
Β Β Β Β Β Β Β Β Β Β βJoinder Agreementβ means collectively, each joinder agreement executed in favor of
the Administrative Agent for the ratable benefit of itself and the other Secured Parties,
substantially in the form of ExhibitΒ F.
Β Β Β Β Β Β Β Β Β Β βLC Disbursementβ means a payment made by an Issuing Lender pursuant to a Letter of
Credit.
Β Β Β Β Β Β Β Β Β Β βLC Exposureβ means, at any time, the sum of (a)Β the aggregate undrawn amount of all
outstanding Letters of Credit at such time plus (b)Β the aggregate amount of all LC
Disbursements that
have not yet been reimbursed by or on behalf of the Borrower at such time. The LC Exposure of
any Lender at any time shall be its Applicable Percentage of the total LC Exposure at such time.
Β Β Β Β Β Β Β Β Β Β βLead Arrangerβ means BNP Paribas Securities Corp.
Β Β Β Β Β Β Β Β Β Β βLender Addendumβ means a Lender Addendum in the form of ExhibitΒ I or any other form
approved by the Administrative Agent, to be executed and delivered by each initial Lender as
provided in SectionΒ 9.06(b).
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Β Β Β Β Β Β Β Β Β Β βLendersβ means each Person that shall have become a party hereto pursuant to a Lender
Addendum (including, without limitation, any Issuing Lender and any Swingline Lender, unless the
context otherwise requires), each Incremental Lender and each other Person that shall have become a
party hereto pursuant to an Assignment and Assumption, other than any such Person that ceases to be
a party hereto pursuant to an Assignment and Assumption.
Β Β Β Β Β Β Β Β Β Β βLetter of Creditβ means any letter of credit issued pursuant to this Agreement.
Β Β Β Β Β Β Β Β Β Β βLetter of Credit Documentsβ means, with respect to any Letter of Credit,
collectively, any application therefor and any other agreements, instruments, guarantees or other
documents (whether general in application or applicable only to such Letter of Credit) governing or
providing for (a)Β the rights and obligations of the parties concerned or at risk with respect to
such Letter of Credit or (b)Β any collateral security for any of such obligations.
Β Β Β Β Β Β Β Β Β Β βLIBO Rateβ means, for the Interest Period for any Eurodollar Borrowing, the rate
appearing on Reuters Page LIBOR01 (or on any successor or substitute page or service providing
quotations of interest rates applicable to dollar deposits in the London interbank market
comparable to those currently provided on such page, as determined by the Administrative Agent from
time to time) at approximately 11:00Β a.m., London time, two Business Days prior to the commencement
of such Interest Period, as the rate for Dollar deposits with a maturity comparable to such
Interest Period. If such rate is not available at such time for any reason, then the LIBO Rate for
such Interest Period shall be the rate at which Dollar deposits of $5,000,000 for a maturity
comparable to such Interest Period are offered by the principal London office of the Administrative
Agent in the London interbank market to first class banks at approximately 11:00Β a.m., London time,
two Business Days prior to the commencement of such Interest Period. If the LIBO Rate for any
Interest Period for any Tranche B Term Eurodollar Borrowing as determined above in this definition
would otherwise be less than 1.50%, then such LIBO Rate shall instead be 1.50%.
Β Β Β Β Β Β Β Β Β Β βLienβ means, with respect to any asset, (a)Β any mortgage, deed of trust, lien,
pledge, hypothecation, encumbrance, charge or security interest in, on or of such asset, (b)Β the
interest of a vendor or a lessor under any conditional sale agreement, capital lease or title
retention agreement (or any financing lease having substantially the same economic effect as any of
the foregoing) relating to such asset and (c)Β in the case of securities, any purchase option, call
or similar right of a third party with respect to such securities, other than customary rights of a
third party to acquire Equity Interests in a Subsidiary pursuant to an agreement for a sale of such
Equity Interests permitted hereunder.
Β Β Β Β Β Β Β Β Β Β βLoan Documentsβ means, collectively, this Agreement, the Letter of Credit Documents
and the Security Documents.
Β Β Β Β Β Β Β Β Β Β βLoansβ means the loans made by the Lenders to the Borrower pursuant to this
Agreement, including Incremental Loans of any Series.
Β Β Β Β Β Β Β Β Β Β βMargin Stockβ means βmargin stockβ within the meaning of Regulations T, U and X of
the Board.
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Β Β Β Β Β Β Β Β Β Β βMaterial Adverse Effectβ means a material adverse effect on (a)Β the business, assets,
operations or condition, financial or otherwise, of the Borrower and its Subsidiaries taken as a
whole, (b)Β the ability of the Borrower and each Restricted Subsidiary to perform any of its
obligations under this Agreement or any of the other Loan Documents to which it is a party, (c)Β the
legality, validity, binding effect or enforceability of this Agreement or any of the other Loan
Documents or (d)Β the rights of or benefits available to the Lenders under this Agreement or any of
the other Loan Documents.
Β Β Β Β Β Β Β Β Β Β βMaterial Contractβ means (a)Β any Material Government Contract or (b)Β any other
contract or agreement, written or oral, of the Borrower or any of its Restricted Subsidiaries the
failure to comply with which could reasonably be expected to have a Material Adverse Effect.
Β Β Β Β Β Β Β Β Β Β βMaterial Government Contractβ means any Government Contract, with respect to which
the aggregate amount of EBITDA reasonably attributable to such Government Contract for the four
fiscal quarters ending on or most recently ended prior to any date of determination is greater than
ten percent of EBITDA for the same four fiscal quarter period.
Β Β Β Β Β Β Β Β Β Β βMaterial Indebtednessβ means Indebtedness (other than the Loans and Letters of
Credit) or obligations in respect of one or more Hedging Agreements, of any one or more of the
Borrower and its Restricted Subsidiaries (including Unrestricted Subsidiary Debt and any such
obligations of Unrestricted Subsidiaries that are Guaranteed by the Borrower or any Restricted
Subsidiary) in an aggregate principal amount exceeding $10,000,000. For purposes of determining
Material Indebtedness, the βprincipal amountβ of the obligations of any Person in respect
of any Hedging Agreement at any time shall be the maximum aggregate amount (giving effect to any
netting agreements) that such Person would be required to pay if such Hedging Agreement were
terminated at such time.
Β Β Β Β Β Β Β Β Β Β βMaterial Real Propertyβ means any real property interest, including improvements, now
or hereafter owned or leased by the Borrower or any of its Restricted Subsidiaries having a book
value in excess of $20,000,000.
Β Β Β Β Β Β Β Β Β Β βMCF Bondsβ means the $197,400,000 8.47% amortizing bonds due 2016 issued by MCF.
Β Β Β Β Β Β Β Β Β Β βMCFβ means Municipal Corrections Finance L.P.
Β Β Β Β Β Β Β Β Β Β βMerger Agreementβ means the Agreement and Plan of Merger dated as of AprilΒ 18, 2010
by and among the Borrower, the GEO Acquisition Subsidiary and Target Company, as amended by
Amendment to Agreement and Plan of Merger, dated as of JulyΒ 22, 2010.
Β Β Β Β Β Β Β Β Β Β βMortgagesβ means, collectively, one or more mortgages and deeds of trust (or
equivalent instruments) (including any amendment to any Mortgage existing on the Effective Date
recorded in connection with the Existing Credit Agreement), in substantially the form attached
hereto as ExhibitΒ E (with such changes as may be appropriate in the applicable jurisdiction) and
otherwise in form and substance satisfactory to the Administrative Agent, executed by the Borrower
or a Restricted Subsidiary in favor of the Administrative Agent for the benefit of the Secured
Parties, as any such document may be amended, restated, supplemented or otherwise modified from
time to time and covering
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Β
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(i)Β as of the Effective Date, the properties and leasehold interests
identified in ScheduleΒ 3.17 of the Disclosure Supplement as subject to existing Mortgages
and (ii)Β thereafter, the properties and leasehold interests of the Borrower and its Restricted
Subsidiaries that are required to be subject to the Lien of a Mortgage in accordance with the terms
hereof.
Β Β Β Β Β Β Β Β Β Β βMultiemployer Planβ means a multiemployer plan as defined in SectionΒ 4001(a)(3) of
ERISA.
Β Β Β Β Β Β Β Β Β Β βNet Available Proceedsβ means:
Β Β Β Β Β (a) in the case of any Disposition, the aggregate amount of all cash payments, received
by the Borrower and its Restricted Subsidiaries directly or indirectly in connection with
such Disposition; provided that (i)Β Net Available Proceeds shall be net of (x)Β the
amount of any legal fees and expenses, title premiums and costs, recording fees and
expenses, state and local taxes, commissions, and other fees and expenses paid by the
Borrower and its Restricted Subsidiaries in connection with such Disposition and (y)Β any
Federal, foreign, state and local income or other taxes estimated to be payable by the
Borrower and its Restricted Subsidiaries as a result of such Disposition and (ii)Β Net
Available Proceeds shall be net of any repayments by the Borrower or any of its Restricted
Subsidiaries of Indebtedness to the extent that (x)Β such Indebtedness is secured by a Lien
on the property that is the subject of such Disposition and (y)Β the transferee of (or holder
of a Lien on) such property requires that such Indebtedness be repaid as a condition to the
purchase of such property;
Β Β Β Β Β (b) in the case of any Casualty Event, the aggregate amount of proceeds of insurance,
condemnation awards and other compensation received by the Borrower and its Restricted
Subsidiaries in respect of such Casualty Event net of (i)Β reasonable fees and expenses
incurred by the Borrower and its Restricted Subsidiaries in connection therewith and (ii)
contractually required repayments of Indebtedness to the extent secured by a Lien on such
property and any income and transfer taxes payable by the Borrower or any of its Restricted
Subsidiaries in respect of such Casualty Event;
Β Β Β Β Β (c) in the case of any Equity Issuance, the aggregate amount of all cash received by
the Borrower and its Restricted Subsidiaries in respect of such Equity Issuance net of
reasonable
fees and expenses incurred by the Borrower and its Restricted Subsidiaries in
connection therewith; and
Β Β Β Β Β (d) in the case of any Debt Incurrence, the aggregate amount of all cash received by
the Borrower and its Restricted Subsidiaries in respect of such Debt Incurrence net of
reasonable fees and expenses incurred by the Borrower and its Restricted Subsidiaries in
connection therewith.
Β Β Β Β Β Β Β Β Β Β βNet Incomeβ means, with respect to the Borrower and its Subsidiaries and Other
Consolidated Persons, for any period of determination, the net income (or loss) for such period,
determined on a consolidated basis in accordance with GAAP; provided that, solely for the
purposes of calculating the amount of Restricted Payments permitted to be made pursuant to
SectionΒ 6.05(d)(ii), there
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Β
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shall be added back to Net Income (to the extent otherwise
deducted) for such period the amount of transaction costs and expenses relating to the Acquisition
or any Permitted Acquisition.
Β Β Β Β Β Β Β Β Β Β βNon-Recourse Debt Serviceβ means, with respect to any Person, for any period, the sum
of, without duplication (a)Β the net interest expense of such Person with respect to Indebtedness
that is Non-Recourse to the Borrower and the Restricted Subsidiaries, determined for such period,
without duplication, on a consolidated or combined basis, as the case may be, in accordance with
GAAP, (b)Β the scheduled principal payments required to be made during such period by such Person
with respect to Indebtedness that is Non-Recourse to the Borrower and the Restricted Subsidiaries
and (c)Β rent expense for such period associated with Indebtedness that is Non-Recourse to the
Borrower and the Restricted Subsidiaries.
Β Β Β Β Β Β Β Β Β Β βNon-Recourseβ means, with respect to any Indebtedness or other obligation and to any
Person, that such Person has not Guaranteed such Indebtedness or other obligation, and is not
otherwise liable, directly or indirectly for such Indebtedness or other obligation, and that any
action or inaction by such Person, including without limitation any default by such Person on its
own Indebtedness or other obligations, will not result in any default, event of default,
acceleration, or increased financial or other obligations, under or with respect to such
Indebtedness or other obligation; provided, that, any Indebtedness or other obligation of
any Unrestricted Subsidiary or Other Consolidated Person that would otherwise be Non-Recourse to
the Borrower and the Restricted Subsidiaries shall not be Non-Recourse to the Borrower and the
Restricted Subsidiaries solely due to (A)Β any investment funded at the time or prior to the
incurrence of such Indebtedness or other obligation or (B)Β the assignment by the Borrower or any
Restricted Subsidiary of its rights under any Government Contract to secure Unrestricted Subsidiary
Debt, or Indebtedness or other obligations of any Other Consolidate Person, related to such
Government Contract or (C)Β to the extent undrawn, the issuance of any Letter of Credit in support
of such Indebtedness or other obligation.
Β Β Β Β Β Β Β Β Β Β βNotice of Assignmentβ has the meaning assigned to such term in the Collateral
Agreement.
Β Β Β Β Β Β Β Β Β Β βObligationsβ means, collectively, (a)Β all obligations of the Borrower under the Loan
Documents to pay the principal of and interest on the Loans and all fees, indemnification payments
and
other amounts whatsoever, whether direct or indirect, absolute or contingent, now or hereafter
from time to time owing to the Administrative Agent or the Lenders under the Loan Documents, (b)
all existing or future payment and other obligations owing by the Borrower or any Restricted
Subsidiary under any Hedging Agreement permitted hereunder or outstanding as of the Effective Date,
in each case with any Hedge Counterparty and (c)Β all other interest, fees and commissions
(including reasonable attorneysβ fees), charges, indebtedness, loans, liabilities, financial
accommodations, obligations, covenants and duties owing by the Borrower or any of its Subsidiaries
to the Lenders or the Administrative Agent, in each case under or in respect of this Agreement, any
Note, any Letter of Credit or any of the other Loan Documents of every kind, nature and
description, direct or indirect, absolute or contingent, due or to become due, contractual or
tortious, liquidated or unliquidated, and whether or not evidenced by any note.
Β Β Β Β Β Β Β Β Β Β βOfficerβs Compliance Certificateβ has the meaning assigned to such term in
SectionΒ 5.01(c).
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Β Β Β Β Β Β Β Β Β Β βOther Consolidated Personsβ means Persons, none of the Equity Interests of which are
owned by the Borrower or any of its Subsidiaries, whose financial statements are required to be
consolidated with the financial statements of the Borrower in accordance with GAAP;
provided that MCF shall not be excluded as an Other Consolidated Person solely by reason of
the ownership by the Borrower or any of its Subsidiaries of Equity Rights in MCF.
Β Β Β Β Β Β Β Β Β Β βOther Taxesβ means any and all present or future stamp or documentary taxes or any
other excise or property taxes, charges or similar levies arising from any payment made hereunder
or under any other Loan Document or from the execution, delivery or enforcement of, or otherwise
with respect to, this Agreement or any other Loan Document.
Β Β Β Β Β Β Β Β Β Β βParentβ means, with respect to any Lender, any Person as to which such Lender is,
directly or indirectly, a subsidiary.
Β Β Β Β Β Β Β Β Β Β βParticipantβ means any Person to whom a participation is sold as permitted by
clause (d) of SectionΒ 9.04.
Β Β Β Β Β Β Β Β Β Β βPayeeβ has the meaning assigned to such term in the definition of βExcluded Taxesβ in
this SectionΒ 1.01.
Β Β Β Β Β Β Β Β Β Β βPBGCβ means the Pension Benefit Guaranty Corporation referred to and defined in ERISA
and any successor entity performing similar functions.
Β Β Β Β Β Β Β Β Β Β βPermitted Acquisitionβ means an acquisition by the Borrower or a Restricted
Subsidiary of a Facility, all of the Equity Interests of a Person or all or substantially all of
the assets and related rights constituting an ongoing business, in each case primarily constituting
a Permitted Business, and where each of the following conditions is satisfied:
Β Β Β Β Β (a) at the time of such acquisition, both before and immediately after the consummation
thereof, no Default shall have occurred and be continuing;
Β Β Β Β Β (b) unless the consideration paid for such acquisition (including, without duplication,
the assumption of Indebtedness and aggregate amount of Indebtedness of the subject of such
acquisition remaining outstanding after the consummation thereof) is less than $15,000,000,
Subject EBITDA for the period of four fiscal quarters of the Facility, Person or business so
acquired ended most recently before the consummation of such acquisition, was greater than
zero;
Β Β Β Β Β (c) the Total Leverage Ratio and Senior Secured Leverage Ratio on the last day of the
period of four fiscal quarters of the Borrower ended most recently before the consummation
of such acquisition for which financial statements have been delivered under Section
5.01(a) or (b), calculated on a Pro Forma Basis as if the acquisition had
occurred on the first day of such period, and giving pro forma effect to all payments,
prepayments, redemptions, retirements, sinking fund payments, and borrowings, issuances and
other incurrences, of Indebtedness from and after such day through and including the date of
the consummation of such acquisition, is at least 0.25
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Β
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below the Total Leverage Ratio and
Senior Secured Leverage Ratio, respectively, required to be maintained by the Borrower
pursuant to SectionΒ 6.09 on such day; and
Β Β Β Β Β (d) such acquisition shall be consummated such that, after giving effect thereto, the
subject of such acquisition shall be one or more Restricted Subsidiaries or (to the extent
constituting assets that are not Persons) or shall be acquired directly by the Borrower
and/or one or more of its Restricted Subsidiaries; provided that nothing herein
shall prevent the Borrower from designating the subject of such acquisition as an
Unrestricted Subsidiary in accordance with SectionΒ 5.09(d) hereof.
Β Β Β Β Β Β Β Β Β Β βPermitted Businessβ means a business, a line of business or a facility in the same
line of business as is conducted by the Borrower and its Restricted Subsidiaries on the date
hereof, or a business reasonably related thereto or ancillary or incidental thereto, or a
reasonable extension thereof, including the privatization of governmental services.
Β Β Β Β Β Β Β Β Β Β βPermitted Encumbrancesβ means:
Β Β Β Β Β (a) Liens imposed by law for taxes, assessments and other governmental charges that are
not yet due beyond the period of grace or are being contested in compliance with Section
5.04;
Β Β Β Β Β (b) carriersβ, warehousemenβs, mechanicsβ, materialmenβs, repairmenβs, landlordβs,
bankerβs and other like Liens imposed by law, arising in the ordinary course of business and
securing obligations that are not overdue by more than 30Β days or are being contested in
compliance with SectionΒ 5.04;
Β Β Β Β Β (c) pledges and deposits made in the ordinary course of business in compliance with
workersβ compensation, unemployment insurance and other social security laws or regulations;
Β Β Β Β Β (d) deposits to secure the performance of bids, trade contracts, leases, statutory
obligations, surety and appeal bonds, performance bonds and other obligations of a like
nature, in each case in the ordinary course of business;
Β Β Β Β Β (e) judgment liens in respect of judgments that do not constitute an Event of Default
under SectionΒ 7.01(k); and
Β Β Β Β Β (f) easements, zoning restrictions, rights-of-way and similar encumbrances on real
property imposed by law or arising in the ordinary course of business that do not secure any
monetary obligations and do not materially detract from the value of the affected property
or interfere with the ordinary conduct of business of the Borrower or any Subsidiary;
provided that the term βPermitted Encumbrancesβ shall not include any Lien securing
Indebtedness.
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Β
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Β Β Β Β Β Β Β Β Β Β βPermitted Investmentsβ means:
Β Β Β Β Β (a) direct obligations of, or obligations the principal of and interest on which are
unconditionally guaranteed by, the United States of America (or by any agency thereof to the
extent such obligations are backed by the full faith and credit of the United States of
America), in each case maturing within one year from the date of acquisition thereof;
Β Β Β Β Β (b) marketable direct obligations issued by any state of the United States of America
or any political subdivision of any such state or any public instrumentality thereof
maturing within one year from the date of acquisition thereof and, at the time of
acquisition, having a rating of at least AA from Standard & Poorβs Ratings Services, a
Division of the XxXxxx-Xxxx Companies, Inc. (βS&Pβ) or Aa from Xxxxxβx Investors
Service, Inc. (βMoodyβsβ);
Β Β Β Β Β (c) investments in commercial paper maturing within 270Β days from the date of
acquisition thereof and having, at such date of acquisition, a rating of at least A-2 from
S&P or P-2 from Moodyβs;
Β Β Β Β Β (d) investments in certificates of deposit, bankerβs acceptances and time deposits
maturing within one year from the date of acquisition thereof issued or guaranteed by or
placed with, and money market deposit accounts issued or offered by, any domestic office of
any commercial bank organized under the laws of the United States of America or any State
thereof, or by any, Lender which has a combined capital and surplus and undivided profits of
not less than $500,000,000;
Β Β Β Β Β (e) fully collateralized repurchase agreements with a term of not more than 90Β days for
securities described in clause (a) of this definition and entered into with a
financial institution satisfying the criteria described in clause (d) of this
definition; and
Β Β Β Β Β (f) money market funds that (i)Β comply with the criteria set forth in Securities and
Exchange Commission RuleΒ 2a-7 under the Investment Company Act of 1940, (ii)Β are rated at
least AA by S&P or Aa by Moodyβs and (iii)Β have portfolio assets of at least $1,000,000,000.
Β Β Β Β Β Β Β Β Β Β βPersonβ means any natural person, corporation, limited liability company, trust,
joint venture, association, company, partnership, Governmental Authority or other entity.
Β Β Β Β Β Β Β Β Β Β βPlanβ means any employee pension benefit plan (other than a Multiemployer Plan)
subject to the provisions of Title IV of ERISA or SectionΒ 412 of the Code or SectionΒ 302 of ERISA,
and in respect of which the Borrower or any ERISA Affiliate is (or, if such plan were terminated,
would under SectionΒ 4069 of ERISA be deemed to be) an βemployerβ as defined in SectionΒ 3(5) of
ERISA.
Β Β Β Β Β Β Β Β Β Β βPrime Rateβ means, at any time, the rate of interest per annum established from time
to time by BNP Paribas as its prevailing βbase rateβ or βprime rateβ for loans in Dollars in the
United States. Each change in the Prime Rate shall be effective as of the opening of business on
the day such change in such prime rate occurs. The parties hereto acknowledge that the rate
announced publicly by BNP Paribas
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Agreement
Β
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as its prime rate is an index or base rate and shall not
necessarily be its lowest or best rate charged to its customers or other banks.
Β Β Β Β Β Β Β Β Β Β βPrincipal Payment Datesβ means (a)Β in the case of Tranche A Term Loans, the
quarter-annual anniversaries of the Effective Date, beginning with and including the first such
quarter-annual anniversary falling after the Tranche A Term Loans are made and ending with and
including the Term Loan Maturity Date for Tranche A Term Loans and (b)Β in the case of Tranche B
Term Loans, the 24 consecutive quarter-annual anniversaries of the Effective Date beginning with
and including the first such quarter-annual anniversary falling after the Effective Date and ending
with and including the Term Loan Maturity Date for Tranche B Term Loans; provided that if
there is no day corresponding to the Effective Date in the appropriate calendar month, then the
relevant Principal Payment Date shall be the last day of such month.
Β Β Β Β Β Β Β Β Β Β βPro Forma Basisβ means, in making any determination of EBITDA or Adjusted EBITDA for
any period, that pro forma effect shall be given to any acquisition permitted hereunder (including
the Acquisition) that occurred during such period, taking into account both revenues (excluding
revenues created by synergies) and estimated cost-savings, as determined reasonably and in good
faith by a Financial Officer and approved by the Administrative Agent, provided that
Borrower delivers to the Administrative Agent a certificate of a Financial Officer setting forth
such pro forma calculations and all assumptions that are material to such calculations.
Β Β Β Β Β Β Β Β Β Β βPro Forma Senior Secured Leverage Ratioβ means, on any date, (a)Β if such date is the
last day of a fiscal quarter of the Borrower, the Senior Secured Leverage Ratio on such date and
(b)Β if such date is not the last day of a fiscal quarter of the Borrower, the Senior Secured
Leverage Ratio on the last day of the Borrowerβs fiscal quarter then most recently ended, after
giving pro forma effect to all payments, prepayments, redemptions, retirements, sinking fund
payments, and borrowings, issuances and other incurrences, of Indebtedness since such last day
through and including such date.
Β Β Β Β Β Β Β Β Β Β βPro Forma Total Leverage Ratioβ means, on any date, (a)Β if such date is the last day
of a fiscal quarter of the Borrower, the Total Leverage Ratio on such date and (b)Β if such date is
not the last day of a fiscal quarter of the Borrower, the Total Leverage Ratio on the last day of
the Borrowerβs fiscal quarter then most recently ended, after giving pro forma effect to all
payments, prepayments, redemptions, retirements, sinking fund payments, and borrowings, issuances
and other incurrences, of Indebtedness since such last day through and including such date.
Β Β Β Β Β Β Β Β Β Β βQuarterly Datesβ means the last Business Day of January, April, July and October in
each year, the first of which shall be the first such day after the date hereof.
Β Β Β Β Β Β Β Β Β Β βRegisterβ has the meaning assigned to such term in SectionΒ 9.04.
Β Β Β Β Β Β Β Β Β Β βReimbursed Capital Expendituresβ means with respect to the Borrower, its Subsidiaries
and the Other Consolidated Persons for any period, the aggregate cost of all Capital Assets
acquired by the Borrower, its Subsidiaries and the Other Consolidated Persons during such period,
as determined in accordance with GAAP, which are reimbursable to the Borrower, any of its
Subsidiaries or any Other Consolidated Person by a Person (other than the Borrower, any of its
Subsidiaries or any Other
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Β
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Consolidated Person) within three months after such costs were incurred
pursuant to a legally binding agreement with respect to which such Person is not in default.
Β Β Β Β Β Β Β Β Β Β βRelated Partiesβ means, with respect to any Person, such Personβs Affiliates and the
partners, directors, officers, employees, agents and advisors of such Person and of such Personβs
Affiliates.
Β Β Β Β Β Β Β Β Β Β βRequired Lendersβ means, at any time, subject to the last paragraph of Section
9.02(b), Lenders having Revolving Credit Exposures, outstanding Term Loans, outstanding
Incremental Loans and unused Commitments representing more than 50% of the sum of the total
Revolving Credit Exposures, outstanding Term Loans, outstanding Incremental Loans and unused
Commitments at such time. The βRequired Lendersβ of a particular Class of Loans means
Lenders having Revolving Credit Exposures, outstanding Term Loans, outstanding Incremental Loans
and unused Commitments of such Class representing more than 50% of the total Revolving Credit
Exposures, outstanding Term Loans, outstanding Incremental Loans and unused Commitments of such
Class at such time.
Β Β Β Β Β Β Β Β Β Β βRestricted Domestic Subsidiaryβ means any Domestic Subsidiary of the Borrower that is
not an Unrestricted Subsidiary.
Β Β Β Β Β Β Β Β Β Β βRestricted Paymentβ means any dividend or other distribution (whether in cash,
securities or other property) with respect to any Equity Interests of the Borrower or any of its
Subsidiaries, or any payment to any Person other than the Borrower (whether in cash, securities or
other property), including any sinking fund or similar deposit, on account of the purchase,
redemption, retirement, acquisition, cancellation or termination of any such shares of capital
stock of the Borrower or any option, warrant or other right to acquire any such shares of capital
stock of the Borrower; provided, that, any payment or distribution made pursuant to the
Merger Agreement with respect to any Equity Interest of the Target Company shall not be a
Restricted Payment.
Β Β Β Β Β Β Β Β Β Β βRestricted Subsidiaryβ means any Subsidiary of the Borrower that is not an
Unrestricted Subsidiary.
Β Β Β Β Β Β Β Β Β Β βRevolving Creditβ, when used in reference to any Loan or Borrowing, refers to whether
such Loan, or the Loans comprising such Borrowing, are made pursuant to SectionΒ 2.01(a).
Β Β Β Β Β Β Β Β Β Β βRevolving Credit Availability Periodβ means the period from and including the
Effective Date to but excluding the earlier of the Revolving Credit Commitment Termination Date and
the date of termination of the Revolving Credit Commitments.
Β Β Β Β Β Β Β Β Β Β βRevolving Credit Commitmentβ means, with respect to each Lender, the commitment, if
any, of such Lender to make Revolving Credit Loans and to acquire participations in Letters of
Credit and Swingline Loans hereunder, expressed as an amount representing the maximum aggregate
amount of such Lenderβs Revolving Credit Exposure hereunder, as such commitment may be (a)Β reduced
or increased from time to time pursuant to SectionΒ 2.08 and (b)Β reduced or increased from
time to time pursuant to assignments by or to such Lender pursuant to SectionΒ 9.04. The
initial aggregate amount of the Lendersβ
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Revolving Credit Commitments is $400,000,000, and the
initial amount of each Lenderβs Revolving Credit Commitment on the Effective Date is set forth in
such Lenderβs Lender Addendum.
Β Β Β Β Β Β Β Β Β Β βRevolving Credit Commitment Increaseβ has the meaning assigned to such term in
SectionΒ 2.08(e)(i).
Β Β Β Β Β Β Β Β Β Β βRevolving Credit Commitment Termination Dateβ means the fifth anniversary of the
Effective Date.
Β Β Β Β Β Β Β Β Β Β βRevolving Credit Exposureβ means, with respect to any Lender at any time, the sum of
the outstanding principal amount of such Lenderβs Revolving Credit Loans and its LC Exposure and
Swingline Exposure at such time.
Β Β Β Β Β Β Β Β Β Β βRevolving Credit Lenderβ means a Lender with a Revolving Credit Commitment or, if the
Revolving Credit Commitments have expired or been terminated, a Lender with Revolving Credit
Exposure.
Β Β Β Β Β Β Β Β Β Β βRevolving Credit Loanβ means a Loan made pursuant to SectionΒ 2.01(a).
Β Β Β Β Β Β Β Β Β Β βSecured Partiesβ means the Administrative Agent, the Lenders and the Hedge
Counterparties.
Β Β Β Β Β Β Β Β Β Β βSecurity Documentsβ means the Guaranty Agreement, the Collateral Agreement, the
Mortgages, the Collateral Assignment and each other agreement or writing pursuant to which the
Borrower or any Restricted Subsidiary thereof purports to xxxxx x Xxxx on any property or assets
securing their obligations under the Loan Documents.
Β Β Β Β Β Β Β Β Β Β βSenior Note Indentureβ means the Indenture dated OctoberΒ 20, 2009 under which the
Senior Notes are issued.
Β Β Β Β Β Β Β Β Β Β βSenior Notesβ means the $250,000,000 73/4% Senior Notes due 2017 issued by the
Borrower.
Β Β Β Β Β Β Β Β Β Β βSenior Secured Leverage Ratioβ means, on any date, the ratio of (a)Β the result of (i)
the aggregate outstanding principal amount of all secured Indebtedness of the Borrower and its
Restricted Subsidiaries on such date (calculated on a consolidated basis without duplication in
accordance with GAAP) minus (ii)Β the sum of (x)Β the aggregate amount (not less than zero)
of Unrestricted Cash held by the Borrower and its Restricted Subsidiaries on such date plus
(y)Β to the extent included in the calculation under the clause (a)(i) of this definition,
the undrawn amount of all outstanding Letters of Credit on such date to (b)Β Adjusted EBITDA for the
period of four fiscal quarters of the Borrower ending on or most recently ended prior to such date.
Β Β Β Β Β Β Β Β Β Β βSeriesβ has the meaning assigned to such term in SectionΒ 2.01(d).
Β Β Β Β Β Β Β Β Β Β βSignificant Subsidiaryβ means any Subsidiary (or group of Subsidiaries on a
consolidated or combined basis) that would be a βsignificant subsidiaryβ as defined in ArticleΒ 1,
Rule
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1-02 of RegulationΒ S-X, promulgated pursuant to the Securities Act of 1933, as such Regulation
is in effect on the date hereof.
Β Β Β Β Β Β Β Β Β Β βSolventβ means, as to the Borrower and its Restricted Subsidiaries on a particular
date, that any such Person (a)Β has capital sufficient to carry on its business and transactions and
all business and transactions in which it is about to engage and is able to pay its debts as they
mature, and (b)Β owns property having a value, both at fair valuation and at present fair saleable
value, greater than the amount required to pay its probable liabilities (including contingencies).
Β Β Β Β Β Β Β Β Β Β βSouth African Randβ refers to the lawful currency of South Africa.
Β Β Β Β Β Β Β Β Β Β βSpecial Counselβ means Milbank, Tweed, Xxxxxx & XxXxxx LLP, in its capacity as
special counsel to BNP Paribas, as Administrative Agent.
Β Β Β Β Β Β Β Β Β Β βStatutory Reserve Rateβ means, for the Interest Period for any Eurodollar Borrowing,
a fraction (expressed as a decimal), the numerator of which is the number one and the denominator
of which is the number one minus the arithmetic mean, taken over each day in such Interest
Period, of the aggregate of the maximum reserve percentages (including any marginal, special,
emergency or supplemental reserves) expressed as a decimal established by the Board to which the
Administrative Agent is subject for eurocurrency funding (currently referred to as βEurocurrency
liabilitiesβ in RegulationΒ D of the Board). Such reserve percentages shall include those imposed
pursuant to RegulationΒ D of the Board. Eurodollar Loans shall be deemed to constitute eurocurrency
funding and to be subject to such reserve requirements without benefit of or credit for proration,
exemptions or offsets that may be available from time to time to any Lender under RegulationΒ D of
the Board or any comparable regulation.
The Statutory Reserve Rate shall be adjusted automatically on and as of the effective date of
any change in any reserve percentage.
Β Β Β Β Β Β Β Β Β Β βSterlingβ or βΒ£β refers to the lawful currency of the United Kingdom.
Β Β Β Β Β Β Β Β Β Β βSubject EBITDAβ means, for any period, for any Facility, Person or business that is
the subject of a proposed Permitted Acquisition (the βAcquired Businessβ), the sum of the
following for such period (calculated without duplication on a consolidated basis for such Acquired
Business and its Subsidiares to the fullest extent practicable in accordance with GAAP (and, if
such Acquired Business consists of assets rather than a Person, as if such Acquired Business were a
Person)) (a)Β net operating income (or loss) plus (b)Β the sum of the following to the extent
deducted in determining such net operating income: (i)Β income and franchise taxes, (ii)Β interest
expense, (iii)Β amortization, depreciation and other non-cash charges (excluding insurance
reserves), and (iv)Β extraordinary losses.
Β Β Β Β Β Β Β Β Β Β βSubsidiaryβ means, with respect to any Person (the βparentβ) at any
date, any other corporation, limited liability company, partnership, association or other entity of
which securities or other ownership interests representing more than 50% of the equity or more than
50% of the ordinary voting power or, in the case of a partnership, more than 50% of the general
partnership interests are, as of such date, owned, controlled or held, or (b)Β that is, as of such
date, otherwise Controlled, by the parent or one or more subsidiaries of the parent or by the
parent and one or more subsidiaries of the parent. Unless otherwise specified, βSubsidiaryβ means
a Subsidiary of the Borrower.
Credit
Agreement
Β
Β Β Β Β Β Β Β Β Β Β βSwingline Exposureβ means, at any time, the aggregate principal amount of all
Swingline Loans outstanding at such time. The Swingline Exposure of any Lender at any time shall
be its Applicable Percentage of the total Swingline Exposure at such time.
Β Β Β Β Β Β Β Β Β Β βSwingline Lenderβ means (i)Β BNP Paribas or (ii)Β any Lender selected by the Borrower
that is reasonably acceptable to the Administrative Agent and consents to be an βSwingline Lenderβ
hereunder. Each reference herein to βthe Swingline Lenderβ shall refer to the respective Swingline
Lender of a Swingline Loan.
Β Β Β Β Β Β Β Β Β Β βSwingline Loanβ means a Loan made pursuant to SectionΒ 2.04.
Β Β Β Β Β Β Β Β Β Β βSyndicatedβ, when used in reference to any Loan or Borrowing, refers to whether the
Class of such Loan or Borrowing is Revolving Credit, Tranche A Term, Tranche B Term or Incremental,
as opposed to Swingline.
Β Β Β Β Β Β Β Β Β Β βSynthetic Leasesβ means any synthetic lease, tax retention operating lease,
off-balance sheet loan or similar off-balance sheet financing product where such transaction is
considered borrowed money indebtedness for tax purposes but is classified as an operating lease in
accordance with GAAP.
Β Β Β Β Β Β Β Β Β Β βTarget Companyβ means Cornell Companies, Inc., a corporation organized under the laws
of the State of Delaware.
Β Β Β Β Β Β Β Β Β Β βTarget Company Debtβ has the meaning assigned to such term in Section
4.03(b).
Β Β Β Β Β Β Β Β Β Β βTaxesβ means all present or future taxes, levies, imposts, duties, deductions,
withholdings, assessments, fees or other charges imposed by any Governmental Authority, including
any interest, additions to tax or penalties applicable thereto.
Β Β Β Β Β Β Β Β Β Β βTermβ, when used in reference to any Loan or Borrowing, refers to whether the Class
of such Loan or Borrowing is Tranche A Term or Tranche B Term, as opposed to Revolving Credit or
Swingline.
Β Β Β Β Β Β Β Β Β Β βTerm Lenderβ means a Lender with a Term Loan Commitment or an outstanding Term Loan.
Β Β Β Β Β Β Β Β Β Β βTerm Loan Commitmentsβ means, collectively, the Tranche A Term Loan Commitments and
the Tranche B Term Loan Commitments.
Β Β Β Β Β Β Β Β Β Β βTerm Loan Maturity Dateβ means: (a)Β with respect to the Tranche A Term Loans, the
fifth anniversary of the Effective Date, and (b)Β with respect to the Tranche B Term Loans, the
sixth anniversary of the Effective Date.
Β Β Β Β Β Β Β Β Β Β βTerm Loansβ means, collectively, Tranche A Term Loans and Tranche B Term Loans.
Β Β Β Β Β Β Β Β Β Β βTitle Companiesβ has the meaning assigned to such term in Section
5.10(a)(ii).
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Β
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Β Β Β Β Β Β Β Β Β Β βTotal Leverage Ratioβ means, on any date, the ratio of (a)Β the result of the
following calculation: (i)Β the aggregate outstanding principal amount of all Indebtedness of the
Borrower, its Subsidiaries and the Other Consolidated Persons on such date (calculated on a
consolidated basis without duplication in accordance with GAAP) minus (ii)Β the sum of (x)
the aggregate amount (not less than zero) of Unrestricted Cash held by the Borrower and its
Restricted Subsidiaries on such date and the aggregate amount of cash and Permitted Investments
held in the MCF Debt Service Reserve Fund and the MCF Bond Fund Payment Account established and as
defined in connection with the MCF Bonds plus (y)Β the aggregate outstanding principal
amount of all Indebtedness (other than the MCF Bonds) of the Unrestricted Subsidiaries and the
Other Consolidated Persons on such date that is Non-Recourse to the Borrower and its Restricted
Subsidiaries plus (z)Β to the extent included in the calculation under the clause
(a)(i) of this definition, the undrawn amount of all outstanding Letters of Credit on such date
to (b)Β Adjusted EBITDA for the period of four fiscal quarters of the Borrower ending on or most
recently ended prior to such date.
Β Β Β Β Β Β Β Β Β Β βTranche A Termβ, when used in reference to any Loan or Borrowing, refers to whether
such Loan, or the Loans comprising such Borrowing, are made pursuant to SectionΒ 2.01(b).
Β Β Β Β Β Β Β Β Β Β βTranche A Term Lenderβ means a Lender with a Tranche A Term Loan Commitment or an
outstanding Tranche A Term Loan.
Β Β Β Β Β Β Β Β Β Β βTranche A Term Loan Availability Periodβ means the period from and including the
Effective Date to the date falling six months after the Effective Date; provided that if
there is no day corresponding to such date in the sixth month following the month in which the
Effective Date falls, the last day of the Tranche A Term Loan Availability Period shall be the last
day of such sixth month.
Β Β Β Β Β Β Β Β Β Β βTranche A Term Loan Commitmentβ means, with respect to each Lender, the commitment,
if any, of such Lender to make a single Tranche A Term Loan hereunder during the Tranche A Term
Loan Availability Period, expressed as an amount representing the maximum principal amount of the
Tranche A Term Loan to be made by such Lender hereunder, as such commitment may be (a)Β reduced from
time to time pursuant to SectionΒ 2.08 or SectionΒ 2.10(b) or reduced or increased
from time to time pursuant to assignments by or to such Lender pursuant to SectionΒ 9.04.
The initial aggregate amount of the Lendersβ Tranche A Term Loan Commitments is $150,000,000, and
the initial amount of each Lenderβs Tranche A Term Loan Commitment on the Effective Date is set
forth on the applicable Lender Addendum.
Β Β Β Β Β Β Β Β Β Β βTranche B Termβ, when used in reference to any Loan or Borrowing, refers to whether
such Loan, or the Loans comprising such Borrowing, are made pursuant to SectionΒ 2.01(c).
Β Β Β Β Β Β Β Β Β Β βTranche B Term Lenderβ means a Lender with a Tranche B Term Loan Commitment or an
outstanding Tranche B Term Loan.
Β Β Β Β Β Β Β Β Β Β βTranche B Term Loan Commitmentβ means, with respect to each Lender, the commitment,
if any, of such Lender to make a single Tranche B Term Loan hereunder on the Effective Date,
expressed as an amount representing the maximum aggregate principal amount of the Tranche B Term
Loans to be made by such Lender hereunder, as such commitment may be (a)Β reduced from time to
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Β
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time pursuant to SectionΒ 2.08 or SectionΒ 2.10(b) or reduced or increased from
time to time pursuant to assignments by or to such Lender pursuant to SectionΒ 9.04. The
initial aggregate amount of the Lendersβ Tranche B Term Loan Commitments is $200,000,000, and the
initial amount of each Lenderβs Tranche B Term Loan Commitment on the Effective Date is set forth
on the applicable Lender Addendum.
Β Β Β Β Β Β Β Β Β Β βTransactionsβ means the execution, delivery and performance by the Borrower and each
Restricted Subsidiary of this Agreement and the other Basic Documents to which it intended to be a
party, the borrowing of Loans, the use of the proceeds thereof, the issuance, amendment, renewal or
extension of Letters of Credit hereunder and the discharge of the 10.75% Senior Notes due 2012,
issued by the Target Company.
Β Β Β Β Β Β Β Β Β Β βTypeβ, when used in reference to any Loan or Borrowing, refers to whether the rate of
interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference to the
Adjusted LIBO Rate or the Alternate Base Rate.
Β Β Β Β Β Β Β Β Β Β βUCCβ means the Uniform Commercial Code as in effect from time to time in the
applicable jurisdiction.
Β Β Β Β Β Β Β Β Β Β βUnrestricted Cashβ means cash and Permitted Investments held by the Borrower and its
Restricted Subsidiaries that are not subject to any Lien or preferential arrangement in favor of
any Person to protect such Person against loss and are not part of any funded reserve established
by the Borrower or any of its Restricted Subsidiaries required by GAAP.
Β Β Β Β Β Β Β Β Β Β βUnrestricted Subsidiaryβ means any Subsidiary of the Borrower identified in the
Disclosure Supplement as an Unrestricted Subsidiary or designated as an Unrestricted Subsidiary
after the Effective Date pursuant to SectionΒ 5.09(d), provided that such
Unrestricted Subsidiary meets the requirements set forth in SectionΒ 5.09(d).
Β Β Β Β Β Β Β Β Β Β βUnrestricted Subsidiary Debtβ means Indebtedness of any one or more Unrestricted
Subsidiaries.
Β Β Β Β Β Β Β Β Β Β βWithdrawal Liabilityβ means liability to a Multiemployer Plan as a result of a
complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in PartΒ I of
Subtitle E of Title IV of ERISA.
Β Β Β Β Β Β Β Β Β Β βWorking Capitalβ means, at any time, the excess at such time of current assets
(excluding cash and cash equivalents) over current liabilities (excluding the current portion of
long-term debt) of the Borrower, its Subsidiaries and the Other Consolidated Persons (determined on
a consolidated basis without duplication in accordance with GAAP).
Β Β Β Β Β Β Β Β Β Β SECTION 1.02 Classification of Loans and Borrowings. For purposes of this Agreement,
Loans may be classified and referred to by Class (e.g., a βSyndicated Loanβ), by Type (e.g., an
βABR Loanβ) or by Class and Type (e.g., a βSyndicated ABR
Loanβ). Borrowings also may be classified and referred to by Class (e.g., a βSyndicated
Borrowingβ), by Type (e.g., an βABR Borrowingβ) or by Class and Type (e.g., a βSyndicated ABR
Borrowingβ).
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Β Β Β Β Β Β Β Β Β Β SECTION 1.03 Terms Generally. The definitions of terms herein shall apply equally to
the singular and plural forms of the terms defined. Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms. The words βincludeβ,
βincludesβ and βincludingβ shall be deemed to be followed by the phrase βwithout limitationβ. The
word βwillβ shall be construed to have the same meaning and effect as the word βshallβ. Any
reference herein to βthe date hereofβ, βthe date of this Agreementβ and words of similar import
shall be deemed to mean AugustΒ 4, 2010. Unless the context requires otherwise (a)Β any definition
of or reference to any agreement, instrument or other document herein shall be construed as
referring to such agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or
modifications set forth herein, including in SectionΒ 6.13), (b)Β any reference herein to any
Person shall be construed to include such Personβs successors and assigns, (c)Β the words βhereinβ,
βhereofβ and βhereunderβ, and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (d)Β all references herein to
Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of,
and Exhibits and Schedules to, this Agreement, (e)Β any reference to any law or regulation herein
shall, unless otherwise specified, refer to such law or regulation as amended, modified,
supplemented, re-enacted or redesignated from time to time and (f)Β the words βassetβ and βpropertyβ
shall be construed to have the same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, securities, accounts and contract rights.
Β Β Β Β Β Β Β Β Β Β SECTION 1.04 Accounting Terms; GAAP. Except as otherwise expressly provided herein,
all terms of an accounting or financial nature shall be construed in accordance with GAAP as in
effect from time to time; provided that, if the Borrower notifies the Administrative Agent
that the Borrower requests an amendment to any provision hereof to eliminate the effect of any
change occurring after the date hereof in GAAP or in the application thereof on the operation of
such provision (or if the Administrative Agent notifies the Borrower that the Required Lenders
request an amendment to any provision hereof for such purpose), regardless of whether any such
notice is given before or after such change in GAAP or in the application thereof, then such
provision shall be interpreted on the basis of GAAP as in effect and applied immediately before
such change shall have become effective until such notice shall have been withdrawn or such
provision amended in accordance herewith. To enable the ready and consistent determination of
compliance with the covenants set forth in ArticleΒ VI, the Borrower will not change the
last day of its fiscal year from the Sunday closest to DecemberΒ 31 of the calendar year most
closely approximating such fiscal year, or the duration of any of its fiscal quarters from either
13Β weeks or 14Β weeks.
Β Β Β Β Β Β Β Β Β Β SECTION 1.05 Currencies; Currency Equivalents. At any time, any reference in the
definition of the term βAgreed Foreign Currencyβ or in any other provision of this Agreement to the
Currency of any particular nation means the lawful currency of such nation at such time whether or
not the name of such Currency is the same as it was on the date hereof. For purposes of
determining
Β Β Β Β Β (i) whether the amount of any Revolving Credit Borrowing or Letter of Credit, together
with all other Revolving Credit Borrowings and Letters of Credit then outstanding or to be
borrowed or issued at the same time that such Revolving Credit Borrowing or Letter of Credit
is outstanding, would exceed the aggregate amount of the Revolving Credit Commitments,
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Β Β Β Β Β (ii) the aggregate unutilized amount of the Commitments of any Class, or
Β Β Β Β Β (iii) the Revolving Credit Exposure or the LC Exposure of any Class,
the outstanding principal amount of any Letter of Credit that is denominated in any Foreign
Currency shall be deemed to be the Dollar Equivalent of the amount of the Foreign Currency of such
Letter of Credit, determined as of the date of such Letter of Credit. Wherever in this Agreement
in connection with a Letter of Credit a required minimum or multiple amount is expressed in
Dollars, but such Letter of Credit is denominated in a Foreign Currency, such amount shall be the
relevant Foreign Currency Equivalent of such Dollar amount (rounded to the nearest 1,000 units of
such Foreign Currency).
ARTICLE II
THE CREDITS
Β Β Β Β Β Β Β Β Β Β SECTION 2.01 The Commitments.
Β Β Β Β Β Β Β Β Β Β (a)Β Revolving Credit Loans. Subject to the terms and conditions set forth herein,
each Revolving Credit Lender agrees to make Revolving Credit Loans to the Borrower from time to
time during the Revolving Credit Availability Period, in Dollars, in an aggregate principal amount
that will result in neither (i)Β such Lenderβs Revolving Credit Exposure exceeding such Lenderβs
Revolving Credit Commitment nor (ii)Β the total Revolving Credit Exposures exceeding the total
Revolving Credit Commitments. Within the foregoing limits and subject to the terms and conditions
set forth herein, the Borrower may borrow, prepay and reborrow Revolving Credit Loans.
Β Β Β Β Β Β Β Β Β Β (b)Β Tranche A Term Loans. Subject to the terms and conditions set forth herein, each
Tranche A Term Lender agrees to make one or more Tranche A Term Loans to the Borrower on the
Acquisition Date (but in no event after the termination of the Tranche A Term Loan Availability
Period) in Dollars, in a principal amount not exceeding its Tranche A Term Loan Commitment.
Amounts prepaid or repaid in respect of Tranche A Term Loans may not be reborrowed.
Β Β Β Β Β Β Β Β Β Β (c)Β Tranche B Term Loans. Subject to the terms and conditions set forth herein, each
Tranche B Term Lender agrees to make one or more Tranche B Term Loans to the Borrower on the
Effective Date, in Dollars, in a principal amount not exceeding its Tranche B Term Loan Commitment.
Amounts prepaid or repaid in respect of Tranche B Term Loans may not be reborrowed.
Β Β Β Β Β Β Β Β Β Β (d)Β Incremental Loans. In addition to Borrowings of Revolving Credit Loans and Term
Loans pursuant to paragraphs (a), (b) and (c) above, at any time and from
time to time, the Borrower may request that any one or more of the Lenders or, at the option of the
Borrower, other financial institutions or funds selected by the Borrower offer to enter into
commitments to make additional term Incremental Loans to the Borrower, in Dollars, under this
paragraph (d). In the event that one or more of the Lenders or such other financial
institutions or funds offer, in their sole discretion, to enter into such commitments, and such
Lenders or financial institutions or funds and the Borrower agree as to the
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amount of such
commitments that shall be allocated to the respective Lenders or financial institutions or funds
making such offers and the fees (if any) to be payable by the Borrower in connection therewith,
such Lenders or financial institutions or funds shall become obligated to make Incremental Loans
under this Agreement in an amount equal to the amount of their respective Incremental Loan
Commitments (and such financial institutions shall become βIncremental Lendersβ hereunder).
The Incremental Loans to be made pursuant to any such agreement between the Borrower and any such
Lenders or financial institutions or funds in response to any such request by the Borrower shall be
deemed to be a separate βSeriesβ of Incremental Loans for all purposes of this Agreement.
Β Β Β Β Β Β Β Β Β Β Anything herein to the contrary notwithstanding, (i)Β the minimum aggregate principal amount of
Incremental Loan Commitments entered into pursuant to any such request (and, accordingly, the
minimum aggregate principal amount of any Series of Incremental Loans) shall be (A) $20,000,000 or
a larger multiple of $1,000,000 or (B)Β any other amount consented to by the Administrative Agent
and (ii)Β the aggregate principal amount of all Incremental Loan Commitments established after the
date hereof plus the aggregate principal amount of all Revolving Credit Commitment
Increases obtained after the date hereof shall not exceed $250,000,000. Except as otherwise
expressly provided herein, the Incremental Loans of any Series shall have the interest rate,
participation and other fees, commitment reduction schedule (if any), amortization and maturity
date, and be subject to such conditions to effectiveness and initial credit extension, as shall be
agreed upon by the respective Incremental Lenders of such Series, the Borrower and the
Administrative Agent (which agreement by the Administrative Agent shall not be unreasonably
withheld in the case of interest rates and participation and other fees), provided that in
any event (i)Β the Incremental Loans shall be subject to, and entitled to the benefits of, the
collateral security and Guarantees provided for herein and in the other Loan Documents on an equal
and ratable basis with each other Loan, (ii)Β the maturity for Incremental Loans shall not be
earlier than the Term Loan Maturity Date for Tranche B Term Loans and may be later than such Term
Loan Maturity Date to the extent so agreed by the Borrower and such Incremental Lenders and (iii)
the weighted average-life-to-maturity for such Series of Incremental Loans shall not be shorter
than the weighted average-life-to-maturity for the Tranche B Term Loans and may be longer than the
weighted average-life-to-maturity for the Tranche B Term Loans to the extent so agreed by the
Borrower and such Incremental Lenders.
Β Β Β Β Β Β Β Β Β Β Following the acceptance by the Borrower of the offers made by any one or more Lenders to make
any Series of Incremental Loans pursuant to the foregoing provisions of this paragraph (d),
each Incremental Lender in respect of such Series of Incremental Loans severally agrees, on the
terms and conditions of this Agreement, to make such Incremental Loans to the Borrower during the
period from and including the date of such acceptance to and including the commitment termination
date specified in the agreement entered into with respect to such Series in an aggregate principal
amount up to but not exceeding the amount of the Incremental Loan Commitment of such Incremental
Lender in
Β Β Β Β Β Β Β Β Β Β respect of such Series as in effect from time to time. Amounts prepaid or repaid in respect
of Incremental Loans may not be reborrowed.
Β Β Β Β Β Β Β Β Β Β SECTION 2.02 Loans and Borrowings.
Β Β Β Β Β Β Β Β Β Β (a)Β Obligations of Lenders. Each Syndicated Loan shall be made as part of a Borrowing
consisting of Loans of the same Class and Type made by the Lenders ratably in accordance with their
respective Commitments of the applicable Class. Each Swingline Loan shall be made in
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accordance
with the procedures set forth in SectionΒ 2.04. The failure of any Lender to make any Loan
required to be made by it shall not relieve any other Lender of its obligations hereunder;
provided that the Commitments of the Lenders are several and no Lender shall be responsible
for any other Lenderβs failure to make Loans as required.
Β Β Β Β Β Β Β Β Β Β (b)Β Type of Loans. Subject to SectionΒ 2.13, each Syndicated Borrowing shall
be comprised entirely of ABR Loans or of Eurodollar Loans as the Borrower may request in accordance
herewith. Each Swingline Loan shall be an ABR Loan. Each Lender at its option may make any
Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such
Loan; provided that any exercise of such option shall not affect the obligation of the
Borrower to repay such Loan in accordance with the terms of this Agreement.
Β Β Β Β Β Β Β Β Β Β (c)Β Minimum Amounts; Limitation on Number of Borrowings. Each Eurodollar Borrowing
shall be in an aggregate amount of $2,500,000 or a larger multiple of $1,000,000. Each Syndicated
ABR Borrowing shall be in an aggregate amount equal to $1,000,000 or a larger multiple of
$1,000,000; provided that a Syndicated ABR Borrowing may be in an aggregate amount that is
equal to the entire unused balance of the total Commitments of the applicable Class or (in the case
of a Revolving Credit ABR Borrowing) that is required to finance the reimbursement of an LC
Disbursement as contemplated by SectionΒ 2.05(f). Each Swingline Loan shall be in an amount
equal to $100,000 or a larger multiple of $100,000. Borrowings of more than one Class and Type may
be outstanding at the same time; provided that there shall not at any time be more than a
total of fifteen Eurodollar Borrowings outstanding.
Β Β Β Β Β Β Β Β Β Β (d)Β Limitations on Interest Periods. Notwithstanding any other provision of this
Agreement, the Borrower shall not be entitled to request (or to elect to convert to or continue as
a Eurodollar Borrowing):
Β Β Β Β Β (i) any Revolving Credit Borrowing if the Interest Period requested therefor would end
after the Revolving Credit Commitment Termination Date;
Β Β Β Β Β (ii) any Term Borrowing if the Interest Period requested therefor would end after the
applicable Term Loan Maturity Date;
Β Β Β Β Β (iii) any Term Borrowing of either Class if the Interest Period requested therefor
would commence before and end after any Principal Payment Date unless, after giving effect
thereto, the aggregate principal amount of the Term Loans of such Class having Interest
Periods that end after such Principal Payment Date shall be equal to or less than the
aggregate principal amount of the Term Loans of such Class permitted to be outstanding after
giving effect to the payments of principal required to be made on such Principal Payment
Date; and
Β Β Β Β Β (iv) any Borrowing of a Series of Incremental Term Loans if the Interest Period
requested therefor would commence before and end after (x)Β the final maturity date for such
Series or (y)Β any date specified for the amortization of such Series unless, in the case of
this clause (y), after giving effect thereto, the aggregate principal amount of the
Incremental Loans of such Series having Interest Periods that end after such date shall be
equal to or less than the
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aggregate principal amount of the Incremental Loans of such Series
permitted to be outstanding after giving effect to the payments of principal required to be
made on such date.
Β Β Β Β Β Β Β Β Β Β SECTION 2.03 Requests for Syndicated Borrowings.
Β Β Β Β Β Β Β Β Β Β (a)Β
Notice by the Borrower. To request a Syndicated Borrowing, the Borrower shall
notify the Administrative Agent of such request (i)Β in the case of a Eurodollar Borrowing, not
later than 1:00 p.m.,
New York City time, three Business Days before the date of the proposed
Borrowing, or (ii)Β in the case of a Syndicated ABR Borrowing, not later than 11:00Β a.m.,
New York
City time, one Business Day before the date of the proposed Borrowing;
provided that any
such notice of a Revolving Credit ABR Borrowing to finance the reimbursement of an LC Disbursement
as contemplated by
SectionΒ 2.05(f) may be given not later than 10:00Β a.m.,
New York City
time, on the date of the proposed Borrowing. Each Borrowing Request shall be irrevocable and shall
be in writing in a form approved by the Administrative Agent and signed by the Borrower.
Β Β Β Β Β Β Β Β Β Β (b)Β Content of Borrowing Requests. Each Borrowing Request shall specify the following
information in compliance with SectionΒ 2.02:
Β Β Β Β Β (i) whether the requested Borrowing is to be a Revolving Credit Borrowing, Tranche A
Term Borrowing, Tranche B Term Borrowing or Incremental Borrowing;
Β Β Β Β Β (ii) the aggregate amount of the requested Borrowing;
Β Β Β Β Β (iii) the date of such Borrowing, which shall be a Business Day;
Β Β Β Β Β (iv) whether such Borrowing is to be an ABR Borrowing or a Eurodollar Borrowing;
Β Β Β Β Β (v) in the case of a Eurodollar Borrowing, the Interest Period therefor, which shall be
a period contemplated by the definition of the term βInterest Periodβ and permitted under
SectionΒ 2.02(d); and
Β Β Β Β Β (vi) the location and number of the Borrowerβs account to which funds are to be
disbursed, which shall comply with the requirements of SectionΒ 2.06.
Β Β Β Β Β Β Β Β Β Β (c)Β Notice by the Administrative Agent to the Lenders. Promptly following receipt of
a Borrowing Request in accordance with this Section, the Administrative Agent shall advise each
Lender of the details thereof and of the amount of such Lenderβs Loan to be made as part of the
requested Borrowing.
Β Β Β Β Β Β Β Β Β Β (d)Β Failure to Elect. If no election as to the Type of a Syndicated Borrowing is
specified, then the requested Borrowing shall be an ABR Borrowing. If no Interest Period is
specified with respect to any requested Eurodollar Borrowing, the Borrower shall be deemed to have
selected an Interest Period of one monthβs duration.
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Β Β Β Β Β Β Β Β Β Β SECTION 2.04 Swingline Loans.
Β Β Β Β Β Β Β Β Β Β (a)Β Agreement to Make Swingline Loans. Subject to the terms and conditions set forth
herein, each Swingline Lender agrees to make Swingline Loans to the Borrower from time to time
during the Revolving Credit Availability Period, in Dollars, in an aggregate principal amount at
any time outstanding that will not result in (i)Β the aggregate principal amount of outstanding
Swingline Loans exceeding $25,000,000 or (ii)Β the total Revolving Credit Exposures exceeding the
total Revolving Credit Commitments, provided that such Swingline Lender shall not be
required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing
limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay
and reborrow Swingline Loans.
Β Β Β Β Β Β Β Β Β Β (b)Β
Notice of Swingline Loans by the Borrower. To request a Swingline Loan, the
Borrower shall notify the Administrative Agent of such request in writing, not later than 1:00
p.m.,
New York City time, on the day of a proposed Swingline Loan. Each such notice shall be
irrevocable and shall specify the requested date (which shall be a Business Day) and amount of the
requested Swingline Loan. The Administrative Agent will promptly advise the applicable Swingline
Lender of any such notice received from the Borrower. Such Swingline Lender shall make each
Swingline Loan available to the Borrower by means of a credit to the general deposit account of the
Borrower with such Swingline Lender (or, in the case of a Swingline Loan made to finance the
reimbursement of an LC Disbursement as provided in
SectionΒ 2.05(f), by remittance to the
respective Issuing Lender) by 2:00 p.m.,
New York City time, on the requested date of such
Swingline Loan.
Β Β Β Β Β Β Β Β Β Β (c)Β
Participations by Lenders in Swingline Loans. The applicable Swingline Lender may
by written notice given to the Administrative Agent not later than 10:00Β a.m.,
New York City time,
on any Business Day require the Revolving Credit Lenders to acquire participations on such Business
Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the
aggregate amount of Swingline Loans in which Revolving Credit Lenders will participate. Promptly
upon receipt of such notice, the Administrative Agent will give notice thereof to each Revolving
Credit Lender, specifying in such notice such Lenderβs Applicable Percentage of such Swingline Loan
or Loans. Each Revolving Credit Lender hereby absolutely and unconditionally agrees, upon receipt
of notice as provided above in this paragraph, to pay to the Administrative Agent, for account of
such Swingline Lender, such Revolving Credit Lenderβs Applicable Percentage of such Swingline Loan
or Loans. Each Revolving Credit Lender acknowledges and agrees that its obligation to acquire
participations in Swingline Loans
pursuant to this paragraph is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including the occurrence and continuance of a Default or reduction or
termination of the Commitments, and that each such payment shall be made without any offset,
abatement, withholding or reduction whatsoever. Each Revolving Credit Lender shall comply with its
obligation under this paragraph by wire transfer of immediately available funds, in the same manner
as provided in
SectionΒ 2.06 with respect to Loans made by such Revolving Credit Lender (and
SectionΒ 2.06 shall apply,
mutatis mutandis, to the payment obligations of
the Lenders), and the Administrative Agent shall promptly pay to such Swingline Lender the amounts
so received by it from the Revolving Credit Lender.
Β Β Β Β Β Β Β Β Β Β The Administrative Agent shall notify the Borrower of any participations in any Swingline Loan
acquired pursuant to the preceding paragraph, and thereafter payments in respect of such Swingline
Loan shall be made to the Administrative Agent and not to a Swingline Lender. Any amounts
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received
by a Swingline Lender from the Borrower (or other party on behalf of the Borrower) in respect of a
Swingline Loan after receipt by such Swingline Lender of the proceeds of a sale of participations
therein shall be promptly remitted to the Administrative Agent; any such amounts received by the
Administrative Agent shall be promptly remitted by the Administrative Agent to the Revolving Credit
Lenders that shall have made their payments pursuant to the preceding paragraph and to such
Swingline Lender, as their interests may appear, provided that any such payment so remitted
shall be repaid to such Swingline Lender or to the Administrative Agent, as applicable, if and to
the extent such payment is required to be refunded to the Borrower for any reason. The purchase of
participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any
default in the payment thereof.
Β Β Β Β Β Β Β Β Β Β SECTION 2.05 Letters of Credit.
Β Β Β Β Β Β Β Β Β Β (a)Β General. Subject to the terms and conditions set forth herein, in addition to the
Loans provided for in SectionΒ 2.01, the Borrower may request any Issuing Lender to issue,
at any time and from time to time during the Revolving Credit Availability Period, Letters of
Credit for its own account (or in the case of letters of credit referred to in Section
2.05(m), for the account of the Target Company) in such form as is acceptable to the
Administrative Agent and such Issuing Lender in its reasonable determination, which Letters of
Credit may be denominated in Dollars or in any Agreed Foreign Currency. Letters of Credit issued
hereunder shall constitute utilization of the Revolving Credit Commitments.
Β Β Β Β Β Β Β Β Β Β (b)Β
Notice of Issuance, Amendment, Renewal or Extension. To request the issuance of a
Letter of Credit (or the amendment, renewal or extension of an outstanding Letter of Credit), the
Borrower shall hand deliver or telecopy (or transmit by electronic communication, if arrangements
for doing so have been approved by the respective Issuing Lender) to an Issuing Lender selected by
it and the Administrative Agent (reasonably in advance of the requested date of issuance,
amendment, renewal or extension) a notice requesting the issuance of a Letter of Credit, or
identifying the Letter of Credit to be amended, renewed or extended, and specifying the date of
issuance, amendment, renewal or extension (which shall be a Business Day), the date on which such
Letter of Credit is to expire (which shall comply with
paragraph (d) of this Section), the
amount and Currency of such Letter of Credit, the name and address of the beneficiary thereof and
such other information as shall be necessary to prepare, amend,
renew or extend such Letter of Credit. Such notice shall be given to the Administrative Agent
(i)Β in the case of a Letter of Credit to be denominated in Dollars, not later than 4:00 p.m.,
New
York City time, three Business Days before the date of the proposed issuance, amendment, renewal or
extension and (ii)Β in the case of a Letter of Credit to be denominated in a Foreign Currency, not
later than 4:00 p.m., London time, three Business Days (or four Business Days if longer notice is
determined by the Administrative Agent to be required) before the date of the proposed issuance,
amendment, renewal or extension. The Issuing Lender shall promptly notify each Lender of the
issuance of any Letter of Credit and upon request by any Lender, furnish to such Lender a copy of
such Letter of Credit and the amount of such Lenderβs participation therein.
Β Β Β Β Β Β Β Β Β Β If requested by the respective Issuing Lender, the Borrower also shall submit a letter of
credit application on such Issuing Lenderβs standard form in connection with any request for a
Letter of Credit. In the event of any inconsistency between the terms and conditions of this
Agreement and the terms and conditions of any form of letter of credit application or other
agreement submitted by the
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Borrower to, or entered into by the Borrower with, an Issuing Lender
relating to any Letter of Credit, the terms and conditions of this Agreement shall control.
Β Β Β Β Β Β Β Β Β Β (c)Β Limitations. A Letter of Credit shall be issued, amended, renewed or extended
(including pursuant to paragraphs (l) and (m) of this SectionΒ 2.05) only if
after giving effect to such issuance, amendment, renewal or extension (A)Β the aggregate LC Exposure
shall not exceed $125,000,000 and (B)Β the total Revolving Credit Exposure shall not exceed the
total Revolving Credit Commitments (and upon issuance, amendment, renewal or extension of each
Letter of Credit the Borrower shall be deemed to represent and warrant as to the same).
Β Β Β Β Β Β Β Β Β Β (d)Β Expiration Date. Each Letter of Credit shall expire at or prior to the close of
business on the earlier of (i)Β the date reasonably satisfactory to the applicable Issuing Lender
and (ii)Β the date that is five Business Days prior to the Revolving Credit Commitment Termination
Date.
Β Β Β Β Β Β Β Β Β Β (e)Β Participations. By the issuance of a Letter of Credit (or an amendment to a
Letter of Credit increasing the amount thereof) by any Issuing Lender, and without any further
action on the part of such Issuing Lender or the Lenders, such Issuing Lender hereby grants to each
Revolving Credit Lender, and each Revolving Credit Lender hereby acquires from such Issuing Lender,
a participation in such Letter of Credit equal to such Revolving Credit Lenderβs Applicable
Percentage of the aggregate amount available to be drawn under such Letter of Credit. Each
Revolving Credit Lender acknowledges and agrees that its obligation to acquire participations
pursuant to this paragraph in respect of Letters of Credit is absolute and unconditional and shall
not be affected by any circumstance whatsoever, including any amendment, renewal or extension of
any Letter of Credit or the occurrence and continuance of a Default or reduction or termination of
the Commitments.
Β Β Β Β Β Β Β Β Β Β In consideration and in furtherance of the foregoing, each Revolving Credit Lender hereby
absolutely and unconditionally agrees to pay to the Administrative Agent, for account of the
respective Issuing Lender, such Revolving Credit Lenderβs Applicable Percentage of the Dollar
Equivalent of each LC Disbursement made by an Issuing Lender promptly upon the request of such
Issuing Lender at any time from the time of such LC Disbursement until such LC Disbursement is
reimbursed by the Borrower or at any time after any reimbursement payment is required to be
refunded to
the Borrower for any reason. Such payment shall be made without any offset, abatement,
withholding or reduction whatsoever. Each such payment shall be made in the same manner as
provided in SectionΒ 2.06 with respect to Loans made by such Revolving Credit Lender (and
SectionΒ 2.06 shall apply, mutatis mutandis, to the payment obligations of
the Revolving Credit Lenders), and the Administrative Agent shall promptly pay to the respective
Issuing Lender the amounts so received by it from the Revolving Credit Lenders. Promptly following
receipt by the Administrative Agent of any payment from the Borrower pursuant to the immediately
following paragraph, the Administrative Agent shall distribute such payment to the respective
Issuing Lender or, to the extent that the Revolving Credit Lenders have made payments pursuant to
this paragraph to reimburse such Issuing Lender, then to such Revolving Credit Lenders and such
Issuing Lender as their interests may appear. Any payment made by a Revolving Credit Lender
pursuant to this paragraph to reimburse an Issuing Lender for any LC Disbursement shall not
constitute a Loan and shall not relieve the Borrower of its obligation to reimburse such LC
Disbursement.
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Β
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Β Β Β Β Β Β Β Β Β Β (f)Β
Reimbursement. If an Issuing Lender shall make any LC Disbursement in respect of
a Letter of Credit, the Borrower shall reimburse such Issuing Lender in respect of such LC
Disbursement by paying to the Administrative Agent an amount equal to the Dollar Equivalent of such
LC Disbursement not later than 4:00 p.m.,
New York City time, on (i)Β the Business Day that the
Borrower receives notice of such LC Disbursement, if such notice is received prior to 11:00Β a.m.,
New York City time, or (ii)Β the Business Day immediately following the day that the Borrower
receives such notice, if such notice is not received prior to such time,
provided that, if
the Dollar Equivalent of such LC Disbursement is not less than $1,000,000, the Borrower may,
subject to the conditions to borrowing set forth herein, request in accordance with
Section
2.03 or
SectionΒ 2.04 that such payment be financed with a Revolving Credit ABR
Borrowing or Swingline Loan in an equivalent amount and, to the extent so financed, the Borrowerβs
obligation to make such payment shall be discharged and replaced by the resulting Revolving Credit
ABR Borrowing or Swingline Loan. If the Borrower fails to make such payment when due, the
Administrative Agent shall notify each Revolving Credit Lender of the applicable LC Disbursement,
the payment then due from the Borrower in respect thereof and such Revolving Credit Lenderβs
Applicable Percentage of the Dollar Equivalent thereof.
Β Β Β Β Β Β Β Β Β Β (g)Β Obligations Absolute. The Borrowerβs obligation to reimburse LC Disbursements as
provided in paragraph (f) of this Section shall be absolute, unconditional and irrevocable,
and shall be performed strictly in accordance with the terms of this Agreement under any and all
circumstances whatsoever and irrespective of (i)Β any lack of validity or enforceability of any
Letter of Credit, or any term or provision therein, (ii)Β any draft or other document presented
under a Letter of Credit proving to be forged, fraudulent or invalid in any respect or any
statement in such draft or other document being untrue or inaccurate in any respect, (iii)Β payment
by the respective Issuing Lender under a Letter of Credit against presentation of a draft or other
document that does not comply strictly with the terms of such Letter of Credit, or (iv)Β any other
event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but
for the provisions of this Section, constitute a legal or equitable discharge of, or provide a
right of setoff against, the Borrowerβs obligations hereunder.
Β Β Β Β Β Β Β Β Β Β Neither the Administrative Agent, the Lenders nor any Issuing Lender, nor any of their Related
Parties, shall have any liability or responsibility by reason of or in connection with the issuance
or transfer of any Letter of Credit by the respective Issuing Lender or any payment or failure to
make any
payment thereunder (irrespective of any of the circumstances referred to in the preceding
sentence), or any error, omission, interruption, loss or delay in transmission or delivery of any
draft, notice or other communication under or relating to any Letter of Credit (including any
document required to make a drawing thereunder) or any error in interpretation of technical terms
or any consequence arising from causes beyond the control of any Issuing Lender; provided
that the foregoing shall not be construed to excuse an Issuing Lender from liability to the
Borrower to the extent of any direct damages (as opposed to consequential damages, claims in
respect of which are hereby waived by the Borrower to the extent permitted by applicable law)
suffered by the Borrower that are caused by such Issuing Lenderβs failure to exercise care when
determining whether drafts and other documents presented under a Letter of Credit comply with the
terms thereof. The parties hereto expressly agree that, in the absence of gross negligence or
willful misconduct on the part of an Issuing Lender (as finally determined by a court of competent
jurisdiction), such Issuing Lender shall be deemed to have exercised care in each such
determination, and that:
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Β
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Β Β Β Β Β (i) any Issuing Lender may accept documents that appear on their face to be in
substantial compliance with the terms of a Letter of Credit without responsibility for
further investigation, regardless of any notice or information to the contrary, and may make
payment upon presentation of documents that appear on their face to be in substantial
compliance with the terms of such Letter of Credit;
Β Β Β Β Β (ii) any Issuing Lender shall have the right, in its sole discretion, to decline to
accept such documents and to decline to make such payment if such documents are not in
strict compliance with the terms of such Letter of Credit; and
Β Β Β Β Β (iii) this sentence shall establish the standard of care to be exercised by each
Issuing Lender when determining whether drafts and other documents presented under a Letter
of Credit comply with the terms thereof (and the parties hereto hereby waive, to the extent
permitted by applicable law, any standard of care inconsistent with the foregoing).
Β Β Β Β Β Β Β Β Β Β (h)Β Disbursement Procedures. The Issuing Lender for any Letter of Credit shall,
within a reasonable time following its receipt thereof, examine all documents purporting to
represent a demand for payment under such Letter of Credit. Such Issuing Lender shall promptly
after such examination notify the Administrative Agent and the Borrower in writing of such demand
for payment and whether such Issuing Lender has made or will make an LC Disbursement thereunder;
provided that any failure to give or delay in giving such notice shall not relieve the
Borrower of its obligation to reimburse such Issuing Lender and the Lenders with respect to any
such LC Disbursement.
Β Β Β Β Β Β Β Β Β Β (i)Β Interim Interest. If the Issuing Lender for any Letter of Credit shall make any
LC Disbursement, then, unless the Borrower shall reimburse such LC Disbursement in full on the date
such LC Disbursement is made, the unpaid amount thereof shall bear interest, for each day from and
including the date such LC Disbursement is made to but excluding the date that the Borrower
reimburses such LC Disbursement, at the rate per annum then applicable to Revolving Credit ABR
Loans; provided that, if the Borrower fails to reimburse such LC Disbursement when due
pursuant to paragraph (f) of this Section, then SectionΒ 2.12(c) shall apply.
Interest accrued pursuant to this paragraph shall be for account of such Issuing Lender, except
that interest accrued on and after the date of payment by any Revolving Credit
Lender pursuant to paragraph (f) of this Section to reimburse such Issuing Lender
shall be for account of such Revolving Credit Lender to the extent of such payment.
Β Β Β Β Β Β Β Β Β Β (j)Β Replacement of an Issuing Lender. Any Issuing Lender may be replaced at any time
by written agreement between the Borrower, the Administrative Agent, the replaced Issuing Lender
and the successor Issuing Lender. The Administrative Agent shall notify the Lenders of any such
replacement of an Issuing Lender. At the time any such replacement shall become effective, the
Borrower shall pay all unpaid fees accrued for account of the replaced Issuing Lender pursuant to
SectionΒ 2.11(b). From and after the effective date of any such replacement, (i)Β the
successor Issuing Lender shall have all the rights and obligations of an Issuing Lender under this
Agreement with respect to Letters of Credit to be issued by it thereafter and (ii)Β references
herein to the term βIssuing Lenderβ shall be deemed to include such successor or any previous
Issuing Lender, or such successor and all previous Issuing Lenders, as the context shall require.
After the replacement of an Issuing Lender hereunder, the replaced Issuing Lender shall remain a
party hereto and shall continue to have all the rights and
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Β
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obligations of an Issuing Lender under
this Agreement with respect to Letters of Credit issued by it prior to such replacement, but shall
not be required to issue additional Letters of Credit.
Β Β Β Β Β Β Β Β Β Β (k)Β Cash Collateralization. If either (i)Β any Event of Default shall occur and be
continuing, on the Business Day that the Borrower receives notice from the Administrative Agent or
the Required Lenders of the Revolving Credit Loans (or, if the maturity of the Loans has been
accelerated, Revolving Credit Lenders with LC Exposure representing more than 50% of the total LC
Exposure) demanding the deposit of cash collateral pursuant to this paragraph, or (ii)Β the Borrower
shall be required to provide cover for LC Exposure pursuant to SectionΒ 2.10(c), the
Borrower shall immediately deposit into a cash collateral account established at a banking
institution selected by the Administrative Agent (the βCollateral Accountβ), which account
may be a βsecurities accountβ (within the meaning of SectionΒ 8-501 of the UCC as in effect in the
State of New York), in the name of the Administrative Agent and for the benefit of the Revolving
Credit Lenders, an amount in cash equal to, in the case of an Event of Default, 105% of the Dollar
Equivalent of the LC Exposure as of such date plus any accrued and unpaid interest thereon
and, in the case of cover pursuant to SectionΒ 2.10(c), the amount required under
SectionΒ 2.10(c), provided that the obligation to deposit such cash collateral shall
become effective immediately, and such deposit shall become immediately due and payable, without
demand or other notice of any kind, upon the occurrence of any Event of Default with respect to the
Borrower described in clause (h) or (i) of SectionΒ 7.01. Such deposit
shall be held by the Administrative Agent as collateral for the payment and performance of the
obligations of the Borrower under this Agreement.
Β Β Β Β Β Β Β Β Β Β The Administrative Agent shall have exclusive dominion and control, including the exclusive
right of withdrawal, over the Collateral Account. Other than any interest earned on the investment
of such deposits, which investments shall be made at the option and sole discretion of the
Administrative Agent and at the Borrowerβs risk and expense, such deposits shall not bear interest.
Interest or profits, if any, on such investments shall accumulate in the Collateral Account.
Moneys in the Collateral Account shall be applied by the Administrative Agent to reimburse each
Issuing Lender for LC Disbursements for which it has not been reimbursed and, to the extent not so
applied, shall be held for the satisfaction of the reimbursement obligations of the Borrower for
the LC Exposure at such time or, if the maturity of the Loans has been accelerated (but subject to
the consent of all Lenders with LC Exposure), be applied to satisfy other obligations of the
Borrower under this Agreement. If the Borrower is required
to provide an amount of cash collateral hereunder as a result of (i)Β the occurrence of an
Event of Default, or (ii)Β pursuant to SectionΒ 2.10(c)(ii), such amount (to the extent not
applied as aforesaid) shall be returned to the Borrower within three Business Days after all Events
of Default have been cured or waived (in the case of the preceding clause (i)) or as
provided in said SectionΒ 2.10(c)(ii) (in the case of the preceding clause (ii)).
Β Β Β Β Β Β Β Β Β Β (l)Β Letters of Credit Under the Existing Credit Agreement. To the extent that,
pursuant to SectionΒ 3.1 of the Existing Credit Agreement, BNP Paribas, as the βIssuing Lenderβ
thereunder, has issued βLetters of Creditβ under and as defined in the Existing Credit Agreement
then, on the Effective Date, subject to (i)Β the satisfaction of the conditions to effectiveness of
the obligations of the Lenders hereunder set forth in SectionsΒ 4.01 and 4.02 and
(ii)Β the limitations set forth in SectionΒ 2.05(c), each of such βLetters of Creditβ under
the Existing Credit Agreement shall automatically, and without any action on the part of any
Person, become Letters of Credit hereunder.
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Β
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Β Β Β Β Β Β Β Β Β Β (m)Β Letters of Credit Under the Existing Cornell Credit Agreement. If any letters of
credit issued by JPMorgan Chase Bank, N.A. under the Existing Cornell Credit Agreement remain
outstanding on the Acquisition Date, then, subject to (i)Β the satisfaction of the conditions set
forth in SectionΒ 4.03, (ii)Β the Borrower selecting JPMorgan Chase Bank, N.A. as, and
JPMorgan Chase Bank, N.A. consenting to be, an βIssuing Lenderβ hereunder (in which case, JPMorgan
Chase Bank, N.A. shall be deemed acceptable to the Administrative Agent to be an βIssuing Lenderβ)
and (iii)Β the limitations set forth in SectionΒ 2.05(c), such letters of credit shall
automatically, and without any action on the part of any Person, become Letters of Credit
hereunder.
Β Β Β Β Β Β Β Β Β Β SECTION 2.06 Funding of Borrowings.
Β Β Β Β Β Β Β Β Β Β (a)Β Funding by Lenders. Each Lender shall make each Loan to be made by it hereunder
on the proposed date thereof by wire transfer of immediately available funds by 2:00 p.m., New York
City time, to the account of the Administrative Agent most recently designated by it for such
purpose by notice to the Lenders; provided that Swingline Loans shall be made as provided
in SectionΒ 2.04. The Administrative Agent will make such Loans available to the Borrower
by promptly crediting the amounts so received, in like funds, to an account of the Borrower
maintained with the Administrative Agent in New York City and designated by the Borrower in the
applicable Borrowing Request; provided that Revolving Credit ABR Borrowings made to finance
the reimbursement of an LC Disbursement as provided in SectionΒ 2.05(f) shall be remitted by
the Administrative Agent to the respective Issuing Lender.
Β Β Β Β Β Β Β Β Β Β (b)Β Presumption by the Administrative Agent. Unless the Administrative Agent shall
have received notice from a Lender prior to the proposed date of any Borrowing that such Lender
will not make available to the Administrative Agent such Lenderβs share of such Borrowing, the
Administrative Agent may assume that such Lender has made such share available on such date in
accordance with paragraph (a) of this Section and may, in reliance upon such assumption,
make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact
made its share of the applicable Borrowing available to the Administrative Agent, then the
applicable Lender and the Borrower
severally agree to pay to the Administrative Agent forthwith on demand such corresponding
amount with interest thereon, for each day from and including the date such amount is made
available to the Borrower to but excluding the date of payment to the Administrative Agent, at (i)
in the case of a payment to be made by such Lender, the greater of the Federal Funds Effective Rate
and a rate determined by the Administrative Agent in accordance with banking industry rules on
interbank compensation and (ii)Β in the case of a payment to be made by the Borrower, the interest
rate applicable to ABR Loans. If the Borrower and such Lender shall pay such interest to the
Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly
remit to the Borrower the amount of such interest paid by the Borrower for such period. If such
Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so
paid shall constitute such Lenderβs Loan included in such Borrowing. Any payment by the Borrower
shall be without prejudice to any claim the Borrower may have against a Lender that shall have
failed to make such payment to the Administrative Agent.
Β Β Β Β Β Β Β Β Β Β SECTION 2.07 Interest Elections.
Β Β Β Β Β Β Β Β Β Β (a)Β Elections by the Borrower for Syndicated Borrowings. The Loans comprising
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each
Syndicated Borrowing initially shall be of the Type specified in the applicable Borrowing Request
and, in the case of a Eurodollar Borrowing, shall have the Interest Period specified in such
Borrowing Request. Thereafter, the Borrower may elect to convert such Borrowing to a Borrowing of
a different Type or to continue such Borrowing as a Borrowing of the same Type and, in the case of
a Eurodollar Borrowing, may elect the Interest Period therefor, all as provided in this Section.
The Borrower may elect different options with respect to different portions of the affected
Borrowing, in which case each such portion shall be allocated ratably among the Lenders holding the
Loans comprising such Borrowing, and the Loans comprising each such portion shall be considered a
separate Borrowing. This Section shall not apply to Swingline Borrowings, which may not be
converted or continued.
Β Β Β Β Β Β Β Β Β Β (b)Β Notice of Elections. To make an election pursuant to this Section, the Borrower
shall notify the Administrative Agent of such election by the time that a Borrowing Request would
be required under SectionΒ 2.03 if the Borrower were requesting a Syndicated Borrowing of
the Type resulting from such election to be made on the effective date of such election. Each
Interest Election Request shall be irrevocable and shall be in writing in a form approved by the
Administrative Agent and signed by the Borrower.
Β Β Β Β Β Β Β Β Β Β (c)Β Content of Interest Election Requests. Each Interest Election Request shall
specify the following information in compliance with SectionΒ 2.02:
Β Β Β Β Β (i) the Borrowing to which such Interest Election Request applies and, if different
options are being elected with respect to different portions thereof, the portions thereof
to be allocated to each resulting Borrowing (in which case the information to be specified
pursuant to clauses (iii) and (iv) below shall be specified for each
resulting Borrowing);
Β Β Β Β Β (ii) the effective date of the election made pursuant to such Interest Election
Request, which shall be a Business Day;
Β Β Β Β Β (iii) whether the resulting Borrowing is to be an ABR Borrowing or a Eurodollar
Borrowing; and
Β Β Β Β Β (iv) if the resulting Borrowing is a Eurodollar Borrowing, the Interest Period therefor
after giving effect to such election, which shall be a period contemplated by the definition
of the term βInterest Periodβ and permitted under SectionΒ 2.02(d).
Β Β Β Β Β Β Β Β Β Β (d)Β Notice by the Administrative Agent to the Lenders. Promptly following receipt of
an Interest Election Request, the Administrative Agent shall advise each Lender of the details
thereof and of such Lenderβs portion of each resulting Borrowing.
Β Β Β Β Β Β Β Β Β Β (e)Β Failure to Elect; Events of Default. If the Borrower fails to deliver a timely
and complete Interest Election Request with respect to a Eurodollar Borrowing prior to the end of
the Interest Period therefor, then, unless such Eurodollar Borrowing is repaid as provided herein,
the Borrower shall be deemed to have selected an Interest Period of one monthβs duration.
Credit Agreement
Β
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Β Β Β Β Β Β Β Β Β Β Notwithstanding any contrary provision hereof, if an Event of Default has occurred and is
continuing and the Administrative Agent, at the request of the Required Lenders, so notifies the
Borrower, then, so long as such Event of Default is continuing (i)Β no outstanding Syndicated
Borrowing may be converted to or continued as a Eurodollar Borrowing and (ii)Β unless repaid, each
Eurodollar Borrowing shall automatically be converted to a Syndicated ABR Borrowing at the end of
the Interest Period therefor.
Β Β Β Β Β Β Β Β Β Β SECTION 2.08 Termination and Reduction of the Commitments.
Β Β Β Β Β Β Β Β Β Β (a)Β Scheduled Termination. Unless previously terminated, (i)Β the Term Loan
Commitments of each Class shall terminate at 5:00 p.m., New York City time, on the Effective Date
(in the case of Tranche B Term Loan Commitments) or the Acquisition Date (in the case of Tranche A
Term Loan Commitments), (ii)Β the Revolving Credit Commitments shall terminate on the Revolving
Credit Commitment Termination Date and (iii)Β the Incremental Loan Commitments of any Series shall
terminate on the close of business on the commitment termination date specified in the agreement
establishing such Series pursuant to SectionΒ 2.01(d).
Β Β Β Β Β Β Β Β Β Β (b)Β Voluntary Termination or Reduction. The Borrower may at any time terminate, or
from time to time reduce, the Commitments of any Class; provided that (i)Β each partial
reduction of the Commitments of any Class pursuant to this Section shall be in an amount that is
$3,000,000 or a larger multiple of $1,000,000 and (ii)Β the Borrower shall not terminate or reduce
the Revolving Credit Commitments if, after giving effect to any concurrent prepayment of the
Revolving Credit Loans in accordance with SectionΒ 2.10, the total Revolving Credit Exposure
would exceed the total Revolving Credit Commitments.
Β Β Β Β Β Β Β Β Β Β (c)Β Notice of Voluntary Termination or Reduction. The Borrower shall notify the
Administrative Agent of any election to terminate or reduce the Commitments of any Class under
paragraph (b) of this Section at least three Business Days prior to the effective date
of such termination or reduction, specifying such election and the effective date thereof.
Promptly following receipt of any notice, the Administrative Agent shall advise the Lenders of the
contents thereof. Each notice delivered by the Borrower pursuant to this Section shall be
irrevocable; provided that a notice of termination of the Term Loan Commitments, the
Incremental Loan Commitments or the Revolving Credit Commitments delivered by the Borrower may
state that such notice is conditioned upon the receipt of funds under other credit facilities or
pursuant to an Equity Issuance, in which case such notice may be revoked by the Borrower (by notice
to the Administrative Agent on or prior to the specified effective date) if such condition is not
satisfied.
Β Β Β Β Β Β Β Β Β Β (d)Β Effect of Termination or Reduction. Any termination or reduction of the
Commitments of any Class shall be permanent. Each reduction of the Commitments of any Class shall
be made ratably among the Lenders in accordance with their respective Commitments of such Class.
Β Β Β Β Β Β Β Β Β Β (e)Β Increase of the Revolving Credit Commitments.
Β Β Β Β Β (i) Requests for Increase by Borrower. The Borrower may, from time to time at
any time prior to the Revolving Credit Commitment Termination Date, propose that the
Revolving
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Credit Commitments be increased (each such proposed increase being a
βRevolving Credit Commitment Increaseβ) by notice to the Administrative Agent,
specifying each existing Lender (each an βIncreasing Lenderβ) and/or each additional
lender (each an βAssuming Lenderβ) that shall have agreed (in its sole discretion)
to increase or to assume a Revolving Credit Commitment and the date on which such increase
or assumption is to be effective (the βCommitment Increase Dateβ), which shall be a
Business Day at least three Business Days after delivery of such notice and at least 30Β days
prior to the Revolving Credit Commitment Termination Date; provided that:
Β Β Β Β Β (A) the minimum amount of any such increase shall be (1) $20,000,000 or a
larger multiple of $1,000,000 or (2)Β any other amount consented to by the
Administrative Agent, and the minimum amount of the Revolving Credit Commitment of
any Assuming Lender, and the minimum amount of the increase of the Revolving Credit
Commitment of any Increasing Lender, as part of such Revolving Credit Commitment
Increase shall be $5,000,000 or a larger multiple of $1,000,000 in excess thereof;
Β Β Β Β Β (B) the aggregate principal amount of all Incremental Loan Commitments
established after the date hereof plus the aggregate principal amount of all
Revolving Credit Commitment Increases obtained after the date hereof shall not
exceed $250,000,000;
Β Β Β Β Β (C) the Borrower shall have delivered to the Administrative Agent a certificate
of the Borrower stating on such Commitment Increase Date that (i)Β no Default has
occurred and is continuing and (ii)Β the representations and warranties contained in
this Agreement are true and correct in all material respects as if made on and as of
such date (or, if any such representation or warranty is expressly stated to have
been made as of a specific date, as of such specific date); and
Β Β Β Β Β (D) each Assuming Lender shall be acceptable to the Administrative Agent, each
Issuing Lender and each Swingline Lender in the reasonable exercise of their
discretion.
Β Β Β Β Β (ii) Effectiveness of Revolving Credit Commitment Increase. Each Assuming
Lender, if any, shall become a Revolving Credit Lender hereunder as of such Commitment
Increase Date and the Revolving Credit Commitment of any Increasing Lender and such Assuming
Lender shall be increased as of such Commitment Increase Date; provided that:
Β Β Β Β Β (x) the Administrative Agent shall have received on or prior to 11:00
a.m., New York City time, on such Commitment Increase Date (or on or prior
to a time on an earlier date specified by the Administrative Agent in its
reasonable discretion) a certificate of a duly authorized officer of the
Borrower stating that each of the applicable conditions to such Revolving
Credit Commitment Increase set forth in the foregoing paragraph
(i)(C) have been satisfied;
Β Β Β Β Β (y) each Assuming Lender or Increasing Lender shall have delivered to
the Administrative Agent, on or prior to 11:00Β a.m., New York City time on
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such Commitment Increase Date (or on or prior to a time on an earlier date
specified by the Administrative Agent in its reasonable discretion), an
agreement, in form and substance reasonably satisfactory to the Borrower and
the Administrative Agent, pursuant to which such Lender shall, effective as
of such Commitment Increase Date, undertake a Revolving Credit Commitment or
an increase of Revolving Credit Commitment duly executed by such Assuming
Lender and the Borrower and acknowledged by the Administrative Agent; and
Β Β Β Β Β (z) the Administrative Agent shall have received on or prior to 11:00
a.m., New York City time, on such Commitment Increase Date (or on or prior
to a time on an earlier date specified by the Administrative Agent) such
proof of corporate action, opinions of counsel and other documents as is
consistent with those delivered by the Borrower pursuant to Section
4.01 and reasonably requested by the Administrative Agent, any Assuming
Lender and/or any Increasing Lender in connection with such Revolving Credit
Commitment Increase.
Promptly following satisfaction of such conditions, the Administrative Agent shall notify
the Lenders (including any Assuming Lenders) thereof and of the occurrence of the Commitment
Increase Date by facsimile transmission or electronic messaging system.
Β Β Β Β Β (iii) Recordation into Register. Upon its receipt of an agreement referred to
in clause (ii)(y) above executed by an Assuming Lender or any Increasing Lender,
together with the certificate referred to in clause (ii)(x) above and the
satisfaction of the conditions referred to in clause (ii)(z) above, the
Administrative Agent shall, if such agreement has been completed, (x)Β accept such agreement,
(y)Β record the information contained therein in the Register and (z)Β give prompt notice
thereof to the Borrower.
Β Β Β Β Β (iv) Adjustments of Borrowings. On the Commitment Increase Date, the Borrower
shall (A)Β prepay in full the outstanding Revolving Credit Loans (if any) made to it, (B)
simultaneously borrow new Revolving Credit Loans hereunder in an amount equal to such
prepayment and (C)Β pay to the Revolving Credit Lenders the amounts, if any, payable under
SectionΒ 2.15 as a result of any such prepayment; provided that with respect
to subclauses (A) and (B) above, (x)Β the prepayment to, and borrowing from,
any existing Lender shall be effected by book entry to the extent that any portion of the
amount prepaid to such Lender will be subsequently borrowed from such Lender and (y)Β the
existing Lenders, the Increasing Lenders and the Assuming Lenders shall make and receive
payments among themselves, in a manner acceptable to the Administrative Agent, so that,
after giving effect thereto, the Revolving Credit Borrowings are held ratably by the
Revolving Credit Lenders in accordance with the respective Revolving Credit Commitments of
the Revolving Credit Lenders (after giving effect to such Revolving Credit Commitment
Increase). Concurrently therewith, the Revolving Credit Lenders shall be deemed to have
adjusted their participation interests in any outstanding Letters of Credit and Swingline
Loans so that such interests are held ratably in accordance with their Revolving Credit
Commitments as so increased.
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Β
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Β Β Β Β Β SECTION 2.09 Repayment of Loans; Evidence of Debt.
Β Β Β Β Β (a) Repayment. The Borrower hereby unconditionally promises to pay the Loans as
follows:
Β Β Β Β Β (i) to the Administrative Agent for account of the Revolving Credit Lenders the
outstanding principal amount of the Revolving Credit Loans on the Revolving Credit
Commitment Termination Date;
Β Β Β Β Β (ii) to the Administrative Agent for account of the Tranche A Term Lenders the
outstanding principal amount of the Tranche A Term Loans on each Principal Payment Date set
forth below in the aggregate principal amount set forth opposite such Principal Payment Date
(subject to adjustment pursuant to paragraph (b) of this Section):
Β |
Β |
Β |
Each of the Principal Payment Dates
falling on or before the first
anniversary of the Effective Date
|
Β |
An amount equal to $7,500,000
divided by the number of Principal
Payment Dates for Tranche A Term
Loans falling on or before the first
anniversary of the Effective Date |
Each of the Principal Payment Dates
falling after the first anniversary
of the Effective Date and on or
before the second anniversary of the
Effective Date
|
Β |
$1,875,000 |
Each of the Principal Payment Dates
falling after the second anniversary
of the Effective Date and on or
before the third anniversary of the
Effective Date
|
Β |
$3,750,000 |
Each of the Principal Payment Dates
falling after the third anniversary
of the Effective Date and on or
before the fourth anniversary of the
Effective Date
|
Β |
$7,500,000 |
Each of the Principal Payment Dates
falling after the fourth anniversary
of the Effective Date and on or
before the fifth anniversary of the
Effective Date
|
Β |
$22,500,000 |
Β Β Β Β Β (iii) to the Administrative Agent for account of the Tranche B Term Lenders the
outstanding principal amount of the Tranche B Term Loans on each Principal Payment Date set
forth below in the aggregate principal amount set forth opposite such Principal Payment Date
(subject to adjustment pursuant to paragraph (b) of this Section):
Β |
Β |
Β |
Each of the 1st through 20th Principal Payment Dates
|
Β |
$500,000 |
Each of the 21st through 24th Principal Payment Dates
|
Β |
$47,500,000 |
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Β
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Β Β Β Β Β (iv) to each Swingline Lender or, to the extent required by SectionΒ 2.04(c), to
the Administrative Agent for account of the Revolving Credit Lenders, the then unpaid
principal amount of each Swingline Loan made by such Swingline Lender on the earlier of the
Revolving Credit Commitment Termination Date and the first date after such Swingline Loan is
made that is the 15th or last day of a calendar month and is at least two Business Days
after such Swingline Loan is made; provided that on each date that a Revolving
Credit Borrowing is made, the Borrower shall repay all Swingline Loans then outstanding; and
Β Β Β Β Β (v) to the Administrative Agent for account of the Incremental Lenders of any Series,
the principal of the Incremental Loans of such Series on the dates and in the amounts
specified in the agreement establishing such Series pursuant to SectionΒ 2.01(d).
Β Β Β Β Β Β Β Β Β Β (b)Β Adjustment of Amortization Schedule. If the initial aggregate amount of the Term
Loan Commitments of either Class exceeds the aggregate principal amount of Term Loans of such Class
that are made on the Effective Date (in the case of Tranche B Term Loans) or that are made during
the Tranche A Term Loan Availability Period (in the case of the Tranche A Term Loans), then the
scheduled repayments of Borrowings of such Class to be made pursuant to this Section shall be
reduced ratably by an aggregate amount equal to such excess. Any prepayment of a Term Loan
Borrowing of either Class or of a Class of Incremental Loans shall be applied to reduce the
subsequent scheduled repayments of the Term Borrowings of such Class to be made pursuant to this
SectionΒ 2.09 ratably. To
the extent not previously paid, all Term Loans of each Class shall be due and payable on the
Term Loan Maturity Date for such Class.
Β Β Β Β Β Β Β Β Β Β (c)Β Manner of Payment. Prior to any repayment or prepayment of any Borrowings of any
Class hereunder, and subject (in the case of a prepayment) to any applicable provisions of
SectionΒ 2.10, the Borrower shall select the Borrowing or Borrowings of the applicable Class
to be paid and shall notify the Administrative Agent in writing of such selection not later than
1:00 p.m., New York City time, three Business Days before the scheduled date of such repayment;
provided that each repayment of Borrowings of any Class shall be applied to repay any
outstanding ABR Borrowings of such Class before any other Borrowings of such Class. If the
Borrower fails to make a timely selection of the Borrowing or Borrowings to be repaid or prepaid,
such payment shall be applied, first, to pay any outstanding ABR Borrowings of the applicable Class
and, second, to other Borrowings of such Class in the order of the remaining duration of their
respective Interest Periods (the Borrowing with the shortest remaining Interest Period to be repaid
first). Each payment of a Syndicated Borrowing shall be applied ratably to the Loans included in
such Borrowing.
Β Β Β Β Β Β Β Β Β Β (d)Β Maintenance of Records by Lenders. Each Lender shall maintain in accordance with
its usual practice records evidencing the indebtedness of the Borrower to such Lender resulting
from each Loan made by such Lender, including the amounts of principal and interest payable and
paid to such Lender from time to time hereunder.
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Β
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Β Β Β Β Β Β Β Β Β Β (e) Maintenance of Records by the Administrative Agent. The Administrative
Agent shall maintain records in which it shall record (i)Β the amount of each Loan made hereunder,
the Class and Type thereof and each Interest Period therefor, (ii)Β the amount of any principal or
interest due and payable or to become due and payable from the Borrower to each Lender hereunder
and (iii)Β the amount of any sum received by the Administrative Agent hereunder for account of the
Lenders and each Lenderβs share thereof.
Β Β Β Β Β Β Β Β Β Β (f) Effect of Entries. The entries made in the records maintained pursuant to
paragraph (d) or (e) of this Section shall be prima facie evidence,
absent manifest error, of the existence and amounts of the obligations recorded therein;
provided that the failure of any Lender or the Administrative Agent to maintain such
records or any error therein shall not in any manner affect the obligation of the Borrower to repay
the Loans in accordance with the terms of this Agreement.
Β Β Β Β Β Β Β Β Β Β (g) Promissory Notes. Any Lender may request that Loans of any Class made by it be
evidenced by a promissory note. In such event, the Borrower shall prepare, execute and deliver to
such Lender a promissory note payable to such Lender (or, if requested by such Lender, to such
Lender and its registered assigns) and in a form approved by the Administrative Agent. Thereafter,
the Loans evidenced by such promissory note and interest thereon shall at all times (including
after assignment pursuant to SectionΒ 9.04) be represented by one or more promissory notes
in such form payable to the payee named therein (or, if such promissory note is a registered note,
to such payee and its registered assigns).
Β Β Β Β Β Β Β Β Β Β SECTION 2.10 Prepayment of Loans.
Β Β Β Β Β Β Β Β Β Β (a) Optional Prepayments. The Borrower shall have the right at any time and from time
to time to prepay any Borrowing in whole or in part, subject to the requirements of this Section.
Β Β Β Β Β Β Β Β Β Β (b) Mandatory Prepayments. The Borrower will prepay the Loans, and/or the Commitments
shall be subject to automatic reduction, as follows:
Β Β Β Β Β (i) Casualty Events. Upon the date 180Β days following the receipt by the
Borrower or any of its Restricted Subsidiaries of the proceeds of insurance, condemnation
award or other compensation in respect of any Casualty Event affecting any property of the
Borrower or any of its Restricted Subsidiaries (or upon such earlier date as the Borrower or
such Restricted Subsidiary, as the case may be, shall have determined not to repair or
replace the property affected by such Casualty Event), the Borrower shall prepay the Loans,
and/or the Commitments shall be subject to automatic reduction, in an aggregate amount, if
any, equal to 100% of the Net Available Proceeds of such Casualty Event not theretofore
applied or committed to be applied (and if committed to be applied, not actually applied
within 360Β days following the receipt of such proceeds) to the repair or replacement of such
property, such prepayment and/or reduction to be effected in each case in the manner and to
the extent specified in clause (vi) of this paragraph. Nothing in this paragraph
shall be deemed to limit any obligation of the Borrower or any of its Restricted
Subsidiaries pursuant to any of the Security Documents to remit to a collateral or similar
account maintained by the Administrative Agent pursuant to any of the Security
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Documents the
proceeds of insurance, condemnation award or other compensation received in respect of any
Casualty Event.
Β Β Β Β Β (ii) Equity Issuance. Not later than the date falling five Business Days after
any Equity Issuance, the Borrower shall prepay the Loans, and/or the Commitments shall be
subject to automatic reduction, in an aggregate amount equal to the lesser of (x)Β 50% of the
Net Available Proceeds thereof and (y)Β an amount necessary to reduce the Pro Forma Total
Leverage Ratio on the date of such prepayment to 3.50 to 1.00, such prepayment and/or
reduction to be effected in each case in the manner and to the extent specified in
clause (vi) of this paragraph. Notwithstanding the foregoing, the Borrower shall
not be required to make a prepayment and the Commitments shall not be subject to automatic
reduction pursuant to this SectionΒ 2.10(b)(ii) with respect to the Net Available
Proceeds from an Equity Issuance, so long as (A)Β no Default has occurred and is continuing
on such date or during the period of up to 180Β days referred to below in clause (C)
of this paragraph (ii) prior to the date on which such Net Available Proceeds are
applied, (B)Β the Borrower advises the Administrative Agent no later than five Business Days
after such Equity Issuance that the Borrower intends to retain such Net Available Proceeds
and apply the same to make Permitted Acquisitions and (C)Β the Net Available Proceeds so
retained from such Equity Issuance are in fact so applied within 180Β days of such Equity
Issuance (it being understood that in the event that Net Available Proceeds from more than
one Equity Issuance are retained by the Borrower pending application, such Net Available
Proceeds shall be deemed to be applied in the same order in which such Equity Issuances
occurred and, accordingly, with respect to any such Net Available Proceeds so retained for
more than 180Β days, the Borrower shall prepay the Loans, and/or the Commitments shall be
subject to automatic reduction, as provided above).
Β Β Β Β Β (iii) Excess Cash Flow. Not later than the date falling 125Β days after the
last day of the Borrowerβs fiscal year ending nearest to DecemberΒ 31, 2010 and after the
last day of each fiscal year of the Borrower thereafter, if the Total Leverage Ratio on such
last day exceeded 2.50 to 1.00, the Borrower shall prepay the Loans, and/or the Commitments
shall be subject to automatic reduction, in an aggregate amount equal to (x)Β 50% of Excess
Cash Flow for such fiscal year minus (y)Β the aggregate amount of optional
prepayments of Term Loans made by the Borrower during such fiscal year under Section
2.10(a), such prepayment and/or reduction to be effected in each case in the manner and
to the extent specified in clause (vi) of this paragraph. Notwithstanding the
foregoing, Excess Cash Flow computed for any period shall exclude any portion thereof
attributable to the Target Company and its Subsidiaries or to any Acquired Business (as
defined in the definition of βSubject EBITDAβ) and its Subsidiaries acquired during such
period in the Acquisition or any Permitted Acquisition to the extent that such portion arose
before such acquisition.
Β Β Β Β Β (iv) Sale of Assets. Without limiting the obligation of the Borrower to obtain
the consent of the Required Lenders pursuant to SectionΒ 6.03 to any Disposition not
otherwise permitted hereunder, no later than five Business Days prior to the occurrence of
any Disposition, the Borrower will deliver to the Lenders a statement, certified by a
Financial Officer of the Borrower, in form and detail reasonably satisfactory to the
Administrative Agent, of the amount of the Net Available Proceeds of such Disposition
(except that such statement shall not be
Credit Agreement
Β
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required for any Disposition the Net Available
Proceeds of which are less than or equal to $50,000,000) and upon the consummation of such
Disposition will prepay the Loans, and/or the
Commitments shall be subject to automatic reduction, in an aggregate amount equal to
100% of the Net Available Proceeds of such Disposition, such prepayment and/or reduction to
be effected in each case in the manner and to the extent specified in clause (vi) of
this paragraph. Notwithstanding the foregoing, the Borrower shall not be required to make a
prepayment and the Commitments shall not be subject to automatic reduction pursuant to this
SectionΒ 2.10(b)(iv) with respect to the Net Available Proceeds from any Disposition,
so long as no Default has occurred and is continuing on such date or during the Applicable
Period (prior to the date the Net Available Proceeds are used or otherwise invested as
provided in this sentence) and such Net Available Proceeds are used for one or more
acquisitions or otherwise reinvested in the business of the Borrower and its Restricted
Subsidiaries within the Applicable Period (as defined below for such Disposition (it being
understood that Net Available Proceeds shall be deemed to be used in the same order in which
the related Dispositions occurred) and, accordingly, any such Net Available Proceeds not so
used on or before the last day of the Applicable Period for such Disposition shall be
forthwith applied as provided above). For purposes hereof, βApplicable Periodβ
means, with respect to any Disposition, the period starting on the day such Disposition is
consummated and ending on the date falling 270Β days thereafter, except that if the Borrower
or the applicable Restricted Subsidiary agrees in a legally binding commitment to reinvest
the Net Available Proceeds from the Disposition of any Facility pursuant to the proviso in
the preceding sentence in the construction and equipping of one or more Facilities on or
before such 270th day, the Applicable Period for such Disposition shall be extended
automatically by 18Β months.
Β Β Β Β Β (v) Debt Incurrence. Without limiting the obligation of the Borrower to obtain
the consent of the Required Lenders pursuant to SectionΒ 6.01 to any Indebtedness not
otherwise permitted hereunder, if the Pro Forma Total Leverage Ratio on the date of any Debt
Incurrence is greater than or equal to 3.50 to 1.00, the Borrower shall on such dates prepay
the Loans, and/or the Commitments shall be subject to automatic reduction, in an aggregate
amount equal to 100% of the Net Available Proceeds thereof, such prepayment and/or reduction
to be effected in each case in the manner and to the extent specified in clause (vi)
of this paragraph.
Β Β Β Β Β (vi) Application. Except as otherwise provided in SectionΒ 7.02,
prepayments and/or reductions of Commitments pursuant to this paragraph shall be applied as
follows:
Β Β Β Β Β first, ratably between the Classes of Term Loans and the Series of
Incremental Loans (if any) in accordance with the respective sums at such time of
the aggregate amount of the unused Term Loan Commitments of each Class (if any) and
the unused Incremental Loan Commitments of each Series (if any) and the aggregate
amount of the outstanding Term Loans of such Class (if any) and the aggregate amount
of the outstanding Incremental Loans of such Series (if any), (A)Β with respect to
Term Loans, (x)Β if such prepayment and/or reduction of the Term Loan Commitments is
required to be made before the Term Loan Commitments of either Class have
terminated, to reduce the aggregate amount of the Term Loan Commitments of such
Class (and to the extent that, after giving effect to such reduction, the aggregate
principal amount of the Term Loans of such Class would exceed the Term Loan
Commitments of such Class, the Borrower shall
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Β
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prepay the Term Loans of such Class in
an aggregate amount equal to such excess), and
(y)Β if such prepayment and/or reduction of the Term Loan Commitments is
required to be made after the Term Loan Commitments of either Class have terminated,
to prepay the Term Loans of such Class, and (B)Β with respect to Incremental Loans of
each Series, to prepay the Incremental Loans of such Series and reduce the aggregate
amount of the Incremental Loan Commitments of such Series, as specified in the
agreement establishing such Series pursuant to SectionΒ 2.01(d), and
Β Β Β Β Β second, after the payment in full of the Term Loans and the Incremental
Loans (if any) and the termination of the Term Loan Commitments and the Incremental
Loan Commitments (if any), first, to prepay Swingline Loans, and second, to prepay
Revolving Credit Loans.
Β Β Β Β Β Β Β Β Β Β Notwithstanding the foregoing, if at the time of any prepayment or Commitment reduction
described in this paragraph there are any Tranche A Term Loans or Tranche A Term Loan Commitments
outstanding, any Tranche B Term Lender may, by notice to the Borrower and the Administrative Agent
at least three Business Days before such prepayment or Commitment reduction, decline all or any
portion (in a minimum amount at least equal to $1,000,000) of the prepayment or Commitment
reduction, as the case may be, to which it would otherwise be entitled, in which case the portion
of such prepayment or Commitment reduction, as the case may be, so declined shall be applied
ratably to the prepayment of the Tranche A Term Loans and Incremental Loans, and/or to the
reduction of the Tranche A Term Loan Commitments and Incremental Loan Commitments as set forth in
clause first above. If any Tranche B Term Lender declines any prepayment of its Term Loans
pursuant to the preceding sentence, then, notwithstanding SectionΒ 2.09(c), prepayments of
the Tranche B Term Loans held by the non-declining Tranche B Term Lenders shall be applied to all
outstanding Borrowings constituting such Tranche B Term Loans ratably in accordance with the
amortization of such Borrowings.
Β Β Β Β Β Β Β Β Β Β (c) Mandatory Prepayments due to Changes in Exchange Rates.
Β Β Β Β Β (i) Determination of Amount Outstanding. On each Quarterly Date prior to the
Revolving Credit Commitment Termination Date, on each date that the Borrower shall request a
Revolving Credit Borrowing or the issuance, amendment, renewal or extension of a Letter of
Credit and, in addition, promptly upon the receipt by the Administrative Agent of a Currency
Valuation Notice (as defined below), the Administrative Agent shall determine the aggregate
Revolving Credit Exposure. For the purpose of this determination, the outstanding face
amount of any Letter of Credit that is denominated in any Foreign Currency shall be deemed
to be the Dollar Equivalent of the amount in the Foreign Currency of such Letter of Credit,
determined as of such Quarterly Date, date of such proposed Revolving Credit Borrowing,
issuance, amendment, renewal or extension or, in the case of a Currency Valuation Notice
received by the Administrative Agent prior to 11:00Β a.m., New York City time, on a Business
Day, on such Business Day or, in the case of a Currency Valuation Notice otherwise received,
on the first Business Day after such Currency Valuation Notice is received. Upon making
such determination, the Administrative Agent shall promptly notify the Revolving Credit
Lenders and the Borrower thereof.
Credit Agreement
Β
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Β Β Β Β Β (ii) Prepayment and Cover. If, on the date of such determination (after giving
effect to any prior or substantially concurrent deposit made by the Borrower, at its option,
to the Collateral Account) the aggregate Revolving Credit Exposure exceeds the aggregate
amount of the Revolving Credit Commitments as then in effect (such excess, an
βExcessβ), the Borrower shall, if requested by the Administrative Agent, within five
Business Days following the Borrowerβs receipt of such request:
Β Β Β Β Β (A) if any Revolving Credit Loans are outstanding, prepay all such Revolving
Credit Loans or such portion thereof as is sufficient to eliminate the Excess, and
Β Β Β Β Β (B) if such prepayment is not sufficient to eliminate the Excess, provide cover
for the LC Exposure pursuant to SectionΒ 2.05(k) in an amount sufficient to
eliminate the Excess.
Β Β Β Β Β (iii) Release of Cover. If, on the date of such determination, amount of the
cover provided by the Borrower pursuant to the preceding paragraph (ii)(B) and then
held by the Administrative Agent exceeds the the Excess (such excess, a βRefundable
Excessβ) on such date (or if such Excess is less than or equal to zero), and no Default
has occurred and is continuing, the Administrative Agent shall, if requested by the
Borrower, within three Business Days following the Administrative Agentβs receipt of such
request, return to the Borrower the amount of the Refundable Excess (or, if the Excess is
less than or equal to zero, the full amount of such cover).
Β Β Β Β Β Β Β Β Β Β For purposes hereof, βCurrency Valuation Noticeβ means a notice given by the Required
Lenders of the Revolving Credit Loans or any Issuing Lender to the Administrative Agent stating
that such notice is a βCurrency Valuation Noticeβ and requesting that the Administrative Agent
determine the aggregate Revolving Credit Exposure.
Β Β Β Β Β Β Β Β Β Β Any prepayment of Loans constituting Revolving Credit Exposure pursuant to this paragraph
shall be applied, first, to Swingline Loans outstanding and second, to Revolving
Credit Loans outstanding.
Β Β Β Β Β Β Β Β Β Β (d) Notices, Etc. The Borrower shall notify the Administrative Agent (and, in the
case of prepayment of a Swingline Loan, the applicable Swingline Lender) in writing of any
prepayment hereunder not later than 1:00 p.m., New York City time, five Business Days before the
date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date,
the principal amount of each Borrowing or portion thereof to be prepaid, any other information
required to be in such notice pursuant to SectionΒ 2.09(b) and, in the case of a mandatory
prepayment, a reasonably detailed calculation of the amount of such prepayment; provided
that, if a notice of prepayment is given in connection with a conditional notice of termination of
the Term Loan Commitments, the Incremental Loan Commitments or the Revolving Credit Commitments as
contemplated by SectionΒ 2.08, then such notice of prepayment may be revoked if such notice
of termination is revoked in accordance with SectionΒ 2.08. Promptly following receipt of
any such notice relating to a Syndicated Borrowing, the Administrative Agent shall advise the
relevant Lenders of the contents thereof. Each partial prepayment
of any Borrowing shall be in an amount that would be permitted in the case of a Borrowing of
the same
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Type as provided in SectionΒ 2.02, except as necessary to apply fully the required
amount of a mandatory prepayment. Each prepayment of a Syndicated Borrowing shall be applied
ratably to the Loans included in the prepaid Borrowing, except to the extent otherwise expressly
provided herein. Prepayments shall be accompanied by accrued interest to the extent required by
SectionΒ 2.12.
Β Β Β Β Β Β Β Β Β Β SECTION 2.11 Fees.
Β Β Β Β Β Β Β Β Β Β (a) Commitment Fees. The Borrower agrees to pay to the Administrative Agent for
account of each Revolving Credit Lender and each Tranche A Term Lender a commitment fee, which
shall accrue at the Applicable Rate on the average daily unused amount of the Revolving Credit
Commitment and the Tranche A Term Loan Commitment of such Lender during the period from and
including the Effective Date to but excluding the date such Commitment terminates. Accrued
commitment fees shall be payable in arrears on each Quarterly Date and on the date the relevant
Commitment terminates, commencing on the first such date to occur after the date hereof. All
commitment fees shall be computed on the basis of a year of 360Β days and shall be payable for the
actual number of days elapsed (including the first day but excluding the last day). For purposes
of computing commitment fees with respect to the Revolving Credit Commitments, the Revolving Credit
Commitment of a Lender shall be deemed to be used to the extent of the outstanding Revolving Credit
Loans and LC Exposure of such Lender (and the Swingline Exposure of such Lender shall be
disregarded for such purpose).
Β Β Β Β Β Β Β Β Β Β (b) Letter of Credit Fees. The Borrower agrees to pay (i)Β to the Administrative Agent
for account of each Revolving Credit Lender a participation fee with respect to its participations
in Letters of Credit, which shall accrue at a rate per annum equal to the Applicable Rate
applicable to interest on Revolving Credit Eurodollar Loans on the average daily amount of such
Lenderβs LC Exposure (excluding any portion thereof attributable to unreimbursed LC Disbursements)
during the period from and including the Effective Date to but excluding the later of the date on
which such Lenderβs Revolving Credit Commitment terminates and the date on which such Lender ceases
to have any LC Exposure, and (ii)Β to each Issuing Lender a fronting fee, which shall accrue at the
rate or rates per annum separately agreed upon between the Borrower and such Issuing Lender on the
average daily amount of the LC Exposure (excluding any portion thereof attributable to unreimbursed
LC Disbursements) during the period from and including the Effective Date to but excluding the
later of the date of termination of the Revolving Credit Commitments and the date on which there
ceases to be any LC Exposure, as well as such Issuing Lenderβs standard fees with respect to the
issuance, amendment, renewal or extension of any Letter of Credit or processing of drawings
thereunder. Participation fees and fronting fees accrued through and including each Quarterly Date
shall be payable on the third Business Day following such Quarterly Date, commencing on the first
such date to occur after the Effective Date; provided that all such fees shall be payable
on the date on which the Revolving Credit Commitments terminate and any such fees accruing after
the date on which the Revolving Credit Commitments terminate shall be payable on demand. Any other
fees payable to any Issuing Lender pursuant to this paragraph shall be payable within 10Β days after
demand. All participation fees and fronting fees shall be computed on the basis of a year of
360Β days and shall be payable for the actual number of days elapsed (including the first day
but excluding the last day).
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Β Β Β Β Β Β Β Β Β Β (c) Administrative Agent Fees. The Borrower agrees to pay to the Administrative
Agent, for its own account, fees payable in the amounts and at the times separately agreed upon
between the Borrower and the Administrative Agent.
Β Β Β Β Β Β Β Β Β Β (d) Payment of Fees. All fees payable hereunder shall be paid on the dates due, in
immediately available funds, to the Administrative Agent (or to the respective Issuing Lender, in
the case of fees payable to it) for distribution, in the case of commitment fees and participation
fees, to the Lenders entitled thereto. Fees paid shall not be refundable under any circumstances.
Β Β Β Β Β Β Β Β Β Β SECTION 2.12 Interest(a) ABR Loans. The Loans comprising each ABR Borrowing
(including each Swingline Loan) shall bear interest at a rate per annum equal to the Alternate Base
Rate plus the Applicable Rate.
Β Β Β Β Β Β Β Β Β Β (b) Eurodollar Loans. The Loans comprising each Eurodollar Borrowing shall bear
interest at a rate per annum equal to the Adjusted LIBO Rate for the Interest Period for such
Borrowing plus the Applicable Rate.
Β Β Β Β Β Β Β Β Β Β (c) Default Interest. Notwithstanding the foregoing, if any Event of Default shall
have occurred and be continuing, (i)Β all Loans shall bear interest, after as well as before
judgment, at a rate per annum equal to 2% plus the rate otherwise applicable to such Loan
as provided in paragraph (a) or (b), as applicable, of this Section and (ii)Β all
interest, fees and other amounts payable by the Borrower hereunder not paid when due, whether at
stated maturity, upon acceleration, by mandatory prepayment or otherwise, shall bear interest,
after as well as before judgment, at a rate per annum equal to 2% plus the rate applicable
to Revolving Credit ABR Loans as provided in paragraph (a) of this Section.
Β Β Β Β Β Β Β Β Β Β (d) Payment of Interest. Accrued interest on each Loan shall be payable in arrears on
each Interest Payment Date for such Loan and, in the case of Revolving Credit Loans, upon
termination of the Revolving Credit Commitments; provided that (i)Β interest accrued
pursuant to paragraph (c) of this Section shall be payable on demand, (ii)Β in the event of
any repayment or prepayment of any Loan (other than a prepayment of a Revolving Credit ABR Loan
prior to the Revolving Credit Commitment Termination Date), accrued interest on the principal
amount repaid or prepaid shall be payable on the date of such repayment or prepayment and (iii)Β in
the event of any conversion of any Eurodollar Borrowing prior to the end of the Interest Period
therefor, accrued interest on such Borrowing shall be payable on the effective date of such
conversion.
Β Β Β Β Β Β Β Β Β Β (e) Computation. All interest hereunder shall be computed on the basis of a year of
360Β days, except that interest computed by reference to the Alternate Base Rate at times when the
Alternate Base Rate is based on the Prime Rate shall be computed on the basis of a year of 365Β days
(or 366Β days in a leap year), and in each case shall be payable for the actual number of days
elapsed
(including the first day but excluding the last day). The applicable Alternate Base Rate or
Adjusted LIBO Rate shall be determined by the Administrative Agent, and such determination shall be
conclusive absent manifest error.
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Β Β Β Β Β Β Β Β Β Β (f) Retroactive Adjustments of Applicable Rate. If, as a result of any restatement of
or other adjustment to the financial statements of the Borrower or for any other reason, the
Borrower or the Lenders determine that (i)Β the Total Leverage Ratio as calculated by the Borrower
as of any applicable date was inaccurate and (ii)Β a proper calculation of the Total Leverage Ratio
would have resulted in higher pricing for such period, the Borrower shall immediately and
retroactively be obligated to pay to the Administrative Agent for the account of the applicable
Lenders, promptly on demand by the Administrative Agent (or, after the occurrence of an actual or
deemed entry of an order for relief with respect to the Borrower under the Bankruptcy Code of the
United States, automatically and without further action by the Administrative Agent, any Lender,
any Issuing Lender or any Swingline Lender), an amount equal to the excess of the amount of
interest and fees that should have been paid for such period over the amount of interest and fees
actually paid for such period. This paragraph shall not limit the rights of the Administrative
Agent, any Lender, any Issuing Lender or any Swingline Lender, as the case may be, under
SectionΒ 2.05(i), 2.11(b) or 2.12(c) or under ArticleΒ VII. The
Borrowerβs obligations under this paragraph shall not terminate until the payment by the Borrower
of the principal of and interest on the Loans and all other outstanding obligations owing by it
under the Loan Documents, the expiration or termination of all Letters of Credit and the expiration
or termination of the Commitments if at such time no demand shall have been made for payment (and
no amount shall have become automatically due) under this paragraph (f).
Β Β Β Β Β Β Β Β Β Β SECTION 2.13 Alternate Rate of Interest. If prior to the commencement of the
Interest Period for any Eurodollar Borrowing:
Β Β Β Β Β (a) the Administrative Agent determines (which determination shall be conclusive absent
manifest error) that adequate and reasonable means do not exist for ascertaining the
Adjusted LIBO Rate for such Interest Period; or
Β Β Β Β Β (b) the Administrative Agent is advised by the Required Lenders of the relevant Class
that the Adjusted LIBO Rate for such Interest Period will not adequately and fairly reflect
the cost to such Lenders of making or maintaining their respective Loans included in such
Borrowing for such Interest Period;
then the Administrative Agent shall give notice thereof to the Borrower and the Lenders by
telephone or telecopy as promptly as practicable thereafter and, until the Administrative Agent
notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer
exist, (i)Β any Interest Election Request that requests the conversion of any Syndicated Borrowing
to, or the continuation of any Syndicated Borrowing as, a Eurodollar Borrowing shall be ineffective
and such Syndicated Borrowing (unless prepaid) shall be continued as, or converted to, a Syndicated
ABR Borrowing and (ii)Β if any Borrowing Request requests a Eurodollar Borrowing, such Borrowing
shall be made as a Syndicated ABR Borrowing.
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Β Β Β Β Β Β Β Β Β Β SECTION 2.14 Increased Costs.
Β Β Β Β Β Β Β Β Β Β (a) Increased Costs Generally. If any Change in
Law shall:
Β Β Β Β Β (i) impose, modify or deem applicable any reserve, special deposit, compulsory loan,
insurance charge or similar requirement against assets of, deposits with or for the account
of, or credit extended or participated in by, any Lender (except any reserve requirement
reflected in the Adjusted LIBO Rate) or any Issuing Lender;
Β Β Β Β Β (ii) subject any Lender or any Issuing Lender to any tax of any kind whatsoever with
respect to this Agreement, any Letter of Credit, any participation in a Letter of Credit or
any Eurodollar Loan made by it, or change the basis of taxation of payments to such Lender
or such Issuing Lender in respect thereof (except for Indemnified Taxes or Other Taxes
covered by SectionΒ 2.16 and the imposition of, or any change in the rate of, any
Excluded Tax payable by such Lender or such Issuing Lender); or
Β Β Β Β Β (iii) impose on any Lender or any Issuing Lender or the London interbank market any
other condition, cost or expense affecting this Agreement or Eurodollar Loans made by such
Lender or any Letter of Credit or participation therein;
and the result of any of the foregoing shall be to increase the cost to such Lender of making or
maintaining any Eurodollar Loan (or of maintaining its obligation to make any such Loan) or to
increase the cost to such Lender or such Issuing Lender of participating in, issuing or maintaining
any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of
Credit), or to reduce the amount of any sum received or receivable by such Lender or such Issuing
Lender hereunder (whether of principal, interest or any other amount) then, upon request of such
Lender or such Issuing Lender, the Borrower will pay to such Lender or such Issuing Lender, as the
case may be, such additional amount or amounts as will compensate such Lender or such Issuing
Lender, as the case may be, for such additional costs incurred or reduction suffered.
Β Β Β Β Β Β Β Β Β Β (b) Capital Requirements. If any Lender or any Issuing Lender determines that any
Change in Law affecting such Lender or such Issuing Lender or any lending office of such Lender or
such Lenderβs or such Issuing Lenderβs holding company, if any, regarding capital requirements has
or would have the effect of reducing the rate of return on such Lenderβs or such Issuing Lenderβs
capital or on the capital of such Lenderβs or such Issuing Lenderβs holding company, if any, as a
consequence of this Agreement, the Commitments of such Lender or the Loans made by, or
participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by such
Issuing Lender, to a level below that which such Lender or such Issuing Lender or such Lenderβs or
such Issuing Lenderβs holding company could have achieved but for such Change in Law (taking into
consideration such Lenderβs or such Issuing Lenderβs policies and the policies of such Lenderβs or
such Issuing Lenderβs holding company with respect to capital adequacy), then from time to time the
Borrower will pay to such Lender or such Issuing Lender, as the case may be, such additional amount
or amounts as will compensate such Lender or such Issuing Lender or such Lenderβs or such Issuing
Lenderβs holding company for any such reduction suffered.
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Β Β Β Β Β Β Β Β Β Β (c) Certificates for Reimbursement. A certificate of a Lender or an Issuing Lender
setting forth, in reasonable detail, the basis for determining such amount or amounts necessary to
compensate such Lender or such Issuing Lender or its holding company, as the case may be, as
specified in paragraph (a) or (b) of this Section and delivered to the Borrower
shall be conclusive absent manifest error. The Borrower shall pay such Lender or such Issuing
Lender, as the case may be, the amount shown as due on any such certificate within 10Β days after
receipt thereof.
Β Β Β Β Β Β Β Β Β Β (d) Delay in Requests. Failure or delay on the part of any Lender or any Issuing
Lender to demand compensation pursuant to this Section shall not constitute a waiver of such
Lenderβs or such Issuing Lenderβs right to demand such compensation, provided that the
Borrower shall not be required to compensate a Lender or an Issuing Lender pursuant to this Section
for any increased costs incurred or reductions suffered more than six months prior to the date that
such Lender or such Issuing Lender, as the case may be, notifies the Borrower of the Change in Law
giving rise to such increased costs or reductions and of such Lenderβs or such Issuing Lenderβs
intention to claim compensation therefor (except that, if the Change in Law giving rise to such
increased costs or reductions is retroactive, then the six-month period referred to above shall be
extended to include the period of retroactive effect thereof).
Β Β Β Β Β Β Β Β Β Β SECTION 2.15 Break Funding Payments. In the event of (a)Β the payment of any principal
of any Eurodollar Loan other than on the last day of the Interest Period therefor (including as a
result of an Event of Default), (b)Β the conversion of any Eurodollar Loan other than on the last
day of the Interest Period therefor, (c)Β the failure to borrow, convert, continue or prepay any
Syndicated Loan on the date specified in any notice delivered pursuant hereto (regardless of
whether such notice is permitted to be revocable under SectionΒ 2.10(c) and is revoked in
accordance herewith), or (d)Β the assignment as a result of a request by the Borrower pursuant to
SectionΒ 2.18(b) of any Eurodollar Loan other than on the last day of the Interest Period
therefor, then, in any such event, the Borrower shall compensate each Lender for the loss, cost and
expense attributable to such event. In the case of a Eurodollar Loan, the loss to any Lender
attributable to any such event shall be deemed to include an amount determined by such Lender to be
equal to the excess, if any, of (i)Β the amount of interest that such Lender would pay for a deposit
equal to the principal amount of such Loan for the period from the date of such payment,
conversion, failure or assignment to the last day of the Interest Period for such Loan (or, in the
case of a failure to borrow, convert or continue, the duration of the Interest Period that would
have resulted from such borrowing, conversion or continuation) if the interest rate payable on such
deposit were equal to the Adjusted LIBO Rate for such Interest Period, over (ii)Β the amount
of interest that such Lender would earn on such principal amount for such period if such Lender
were to invest such principal amount for such period at the interest rate that would be bid by such
Lender (or an affiliate of such Lender) for Dollar deposits from other banks in the eurodollar
market at the commencement of such period. A certificate of any Lender setting forth, in
reasonable detail, the basis for determining such amount or amounts that such Lender is entitled to
receive pursuant to this Section shall be delivered to the Borrower and shall be conclusive absent
manifest error. The Borrower shall pay such Lender the amount shown as due on any such certificate
within 10Β days after receipt thereof.
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Β Β Β Β Β Β Β Β Β Β SECTION 2.16 Taxes.
Β Β Β Β Β Β Β Β Β Β (a) Payments Free of Taxes. Any and all payments by or on
account of any obligation of the Borrower hereunder or under any other Loan Document shall be made
free and clear of and without reduction or withholding for any Taxes, provided that if the
Borrower shall be required by applicable law to deduct any Indemnified Taxes (including any Other
Taxes) from such payments, then (i)Β the sum payable shall be increased as necessary so that after
making all required deductions (including deductions applicable to additional sums payable under
this Section) the Administrative Agent, Lender or Issuing Lender, as the case may be, receives an
amount equal to the sum it would have received had no such deductions been made, (ii)Β the Borrower
shall make such deductions and (iii)Β the Borrower shall timely pay the full amount deducted to the
relevant Governmental Authority in accordance with applicable law.
Β Β Β Β Β Β Β Β Β Β (b) Payment of Other Taxes by the Borrower. Without limiting the provisions of
paragraph (a) above, the Borrower shall timely pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable law.
Β Β Β Β Β Β Β Β Β Β (c) Indemnification by the Borrower. The Borrower shall indemnify the Administrative
Agent, each Lender and each Issuing Lender, within 10Β days after demand therefor, for the full
amount of any Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other Taxes imposed
or asserted on or attributable to amounts payable under this Section) paid by the Administrative
Agent, such Lender or such Issuing Lender, as the case may be, and any penalties, interest and
reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified
Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental
Authority. A certificate as to the amount of such payment or liability delivered to the Borrower
by a Lender or an Issuing Lender (with a copy to the Administrative Agent), or by the
Administrative Agent on its own behalf or on behalf of a Lender or an Issuing Lender, shall be
conclusive absent manifest error.
Β Β Β Β Β Β Β Β Β Β (d) Evidence of Payments. As soon as practicable after any payment of Indemnified
Taxes or Other Taxes by the Borrower to a Governmental Authority, the Borrower shall deliver to the
Administrative Agent the original or a certified copy of a receipt issued by such Governmental
Authority evidencing such payment, a copy of the return reporting such payment or other evidence of
such payment reasonably satisfactory to the Administrative Agent.
Β Β Β Β Β Β Β Β Β Β (e) Delivery of Tax Forms. To the extent required by law to reduce or eliminate
withholding or payment of taxes, each Payee shall deliver to the Borrower, with a copy to the
Administrative Agent, on or before the Effective Date or concurrently with the delivery of the
relevant Assignment and Assumption, as applicable, two United States Internal Revenue Service Forms
W-9, Forms W-8ECI or Forms W-8BEN, as applicable (or successor forms) properly completed and
certifying in each case that such Payee is entitled to a complete exemption from withholding or
deduction for or on account of any United States federal income taxes and backup withholding taxes.
Each such Payee further agrees to deliver to the Borrower, with a copy to the Administrative
Agent, as applicable, two Form W-9, Form W-8BEN or W-8ECI, or successor applicable forms or manner
of certification, as the case may be, on or before the date that any such form expires or becomes
obsolete or after the occurrence
of any event requiring a change in the most recent form previously delivered by it to the
Borrower,
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certifying that such Payee is entitled to receive payments under this Agreement without
deduction or withholding of any United States federal income taxes and backup withholding tax
(unless in any such case a Change in Law has occurred prior to the date on which any such delivery
would otherwise be required which renders such forms inapplicable or the exemption to which such
forms relate unavailable and such Payee notifies the Borrower and the Administrative Agent that it
is not entitled to receive payments without deduction or withholding of United States federal
income taxes). In the case of a Payee claiming the benefits of the exemption for portfolio
interest under section 881(c) of the Code, such Payee shall also deliver a certificate to the
effect that such Payee is not (A)Β a βbankβ within the meaning of section 881(c)(3)(A) of the Code,
(B)Β a β10Β percent shareholderβ of the Borrower within the meaning of section 881(c)(3)(B) of the
Code, or (C)Β a βcontrolled foreign corporationβ described in section 881(c)(3)(C) of the Code.
Notwithstanding anything in any Loan Document to the contrary, the Borrower shall not be required
to pay additional amounts to any Payee under this SectionΒ 2.16 if such Payee fails to
comply with the requirements of this SectionΒ 2.16(e), other than to the extent that such
failure is due to a Change in Law occurring after the date on which such Payee became a party to
this Agreement.
Β Β Β Β Β Β Β Β Β Β (f) Treatment of Certain Refunds. (i)Β If any payment is made by the Borrower to or
for the account of any Payee after deduction either for or on account of any Taxes or Other Taxes,
and an indemnity payment or additional amounts are paid by the Borrower pursuant to this Section
2.16, then, if such Payee determines, in its sole discretion, that it is entitled to a refund of
such Taxes or Other Taxes, such Payee shall, to the extent that it can do so without prejudice to
the retention of the amount of such refund, apply for such refund and reimburse to the Borrower
such amount of any refund received (net of reasonable out-of-pocket expenses incurred) as such
Payee shall determine, in its sole discretion, to be attributable to the relevant Taxes or Other
Taxes; and (ii)Β if the Administrative Agent or any Payee determines, in its sole discretion, that
it has received a refund of any Taxes or Other Taxes as to which it has been indemnified by the
Borrower or with respect to which the Borrower has paid additional amounts pursuant to this
Section, it shall pay to the Borrower an amount equal to such refund (but only to the extent of
indemnity payments made, or additional amounts paid, by the Borrower under this Section with
respect to the Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket expenses
of the Administrative Agent or such Payee, as the case may be, and without interest (other than any
interest paid by the relevant Governmental Authority with respect to such refund), provided
that, in case of both (i)Β and (ii)Β the Borrower, upon the request of the Administrative Agent or
such Payee, agrees to repay the amount paid over to the Borrower (plus any penalties, interest or
other charges imposed by the relevant Governmental Authority) to the Administrative Agent or such
Payee in the event the Administrative Agent or such Payee is required to repay such refund to such
Governmental Authority. This paragraph shall not be construed to require the Administrative Agent
or any Payee to make available its tax returns (or any other information relating to its taxes that
it deems confidential) to the Borrower or any other Person.
Β Β Β Β Β Β Β Β Β Β (g) Indemnity. Each Lender shall indemnify the Administrative Agent, within 10Β days
after demand therefor, for the full amount of any Excluded Taxes attributable to such Lender or any
Participant of such Lender (or, in the case of a Lender that is treated as a partnership for U.S.
federal income tax purposes, any direct or indirect beneficial owner of such Lender) that are
payable or paid by the Administrative Agent, and reasonable expenses arising therefrom or with
respect thereto, whether or not such Excluded Taxes were correctly or legally imposed or asserted
by the relevant Governmental
Authority. A certificate as to the amount of such payment or liability delivered to any
Lender by the Administrative Agent shall be conclusive absent manifest error.
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Β Β Β Β Β Β Β Β Β Β SECTION 2.17 Payments Generally; Pro Rata Treatment; Sharing of Setoffs.
Β Β Β Β Β Β Β Β Β Β (a) Payments by the Borrower. The Borrower shall make each payment required to be made by it
hereunder (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts
payable under SectionΒ 2.14, SectionΒ 2.15 or SectionΒ 2.16, or otherwise), or
under any other Loan Document (except to the extent otherwise provided therein), prior to 2:00
p.m., New York City time, on the date when due, in immediately available funds, without setoff or
counterclaim. Any amounts received after such time on any date may, in the discretion of the
Administrative Agent, be deemed to have been received on the next succeeding Business Day for
purposes of calculating interest thereon. All such payments shall be made to the Administrative
Agent at its offices at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, except as otherwise expressly
provided in the relevant Loan Document and except payments to be made directly to an Issuing Lender
or a Swingline Lender as expressly provided herein and payments pursuant to SectionΒ 2.14,
SectionΒ 2.15, SectionΒ 2.16 and SectionΒ 9.03, which shall be made directly
to the Persons entitled thereto. The Administrative Agent shall distribute any such payments
received by it for account of any other Person to the appropriate recipient promptly following
receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the
date for payment shall be extended to the next succeeding Business Day and, in the case of any
payment accruing interest, interest thereon shall be payable for the period of such extension. All
payments hereunder or under any other Loan Document (except to the extent otherwise provided
therein) shall be made in Dollars.
Β Β Β Β Β Β Β Β Β Β (b) Application of Insufficient Payments. If at any time insufficient funds are
received by and available to the Administrative Agent to pay fully all amounts of principal,
unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied
(i) first, to pay interest and fees then due hereunder, ratably among the parties entitled
thereto in accordance with the amounts of interest and fees then due to such parties, and (ii)
second, to pay principal and unreimbursed LC Disbursements then due hereunder, ratably
among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC
Disbursements then due to such parties.
Β Β Β Β Β Β Β Β Β Β (c) Pro Rata Treatment. Except to the extent otherwise provided herein: (i)Β each
Syndicated Borrowing of a particular Class shall be made from the relevant Lenders, each payment of
commitment fee under SectionΒ 2.11 in respect of Commitments of a particular Class shall be
made for account of the relevant Lenders, and each termination or reduction of the amount of the
Commitments of a particular Class under SectionΒ 2.08 shall be applied to the respective
Commitments of such Class of the relevant Lenders, pro rata according to the amounts of their
respective Commitments of such Class; (ii)Β each Syndicated Borrowing of any Class shall be
allocated pro rata among the relevant Lenders according to the amounts of their respective
Commitments of such Class (in the case of the making of Syndicated Loans) or their respective Loans
of such Class that are to be included in such Borrowing (in the case of conversions and
continuations of Loans); (iii)Β each payment or prepayment of principal of Revolving Credit Loans,
Tranche A Term Loans and Tranche B Term Loans by the Borrower shall be made for account of the
relevant Lenders pro rata in accordance with the respective unpaid principal amounts of the
Syndicated Loans of such Class held by them; and (iv)Β each payment of interest on Revolving Credit
Loans, Tranche A Term Loans and Tranche B Term Loans by the Borrower shall be made for account
of the relevant Lenders pro rata in accordance with the amounts of interest on such Loans then due
and payable to the respective Lenders.
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Β Β Β Β Β Β Β Β Β Β (d) Sharing of Payments by Lenders. If any Lender shall, by exercising any right of
setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on
any of its Loans or other obligations hereunder resulting in such Lenderβs receiving payment of a
proportion of the aggregate amount of its Loans and accrued interest thereon or other such
obligations greater than its pro rata share thereof as provided herein, then the Lender receiving
such greater proportion shall (A)Β notify the Administrative Agent of such fact, and (B)Β purchase
(for cash at face value) participations in the Loans and such other obligations of the other
Lenders, or make such other adjustments as shall be equitable, so that the benefit of all such
payments shall be shared by the Lenders ratably in accordance with the aggregate amount of
principal of and accrued interest on their respective Loans and other amounts owing them,
provided that:
Β Β Β Β Β (i) if any such participations are purchased and all or any portion of the payment
giving rise thereto is recovered, such participations shall be rescinded and the purchase
price restored to the extent of such recovery, without interest; and
Β Β Β Β Β (ii) the provisions of this paragraph shall not be construed to apply to (x)Β any
payment made by the Borrower pursuant to and in accordance with the express terms of this
Agreement or (y)Β any payment obtained by a Lender as consideration for the assignment of or
sale of a participation in any of its Loans or participations in LC Disbursements to any
assignee or participant, other than to the Borrower or any Subsidiary thereof (as to which
the provisions of this paragraph shall apply).
The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under
applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements
may exercise against the Borrower rights of setoff and counterclaim with respect to such
participation as fully as if such Lender were a direct creditor of the Borrower in the amount of
such participation.
Β Β Β Β Β Β Β Β Β Β (e) Payments by the Borrower; Presumptions by the Administrative Agent. Unless the
Administrative Agent shall have received notice from the Borrower prior to the date on which any
payment is due to the Administrative Agent for the account of the Lenders or an Issuing Lender
hereunder that the Borrower will not make such payment, the Administrative Agent may assume that
the Borrower has made such payment on such date in accordance herewith and may, in reliance upon
such assumption, distribute to the Lenders or such Issuing Lender, as the case may be, the amount
due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders
and each Issuing Lender severally agrees to repay to the Administrative Agent forthwith on demand
the amount so distributed to such Lender or such Issuing Lender with interest thereon, for each day
from and including the date such amount is distributed to it to but excluding the date of payment
to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate
determined by the Administrative Agent in accordance with banking industry rules on interbank
compensation.
Β Β Β Β Β Β Β Β Β Β (f) Certain Deductions by the Administrative Agent. If any Lender shall fail to make
any payment required to be made by it pursuant to SectionΒ 2.04(c), SectionΒ 2.05(e),
SectionΒ 2.06(b) or SectionΒ 2.17(e), then the Administrative Agent may, in its
discretion (notwithstanding any contrary provision hereof), (i)Β apply any amounts thereafter
received by the Administrative Agent for account of such Lender for the benefit of the
Administrative Agent, any Swingline Lender or any Issuing Lender to
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satisfy such Lenderβs
obligations to it under such Sections until all such unsatisfied obligations are fully paid, and/or
(ii)Β hold any such amounts in a segregated account as cash collateral for, and application to, any
future funding obligations of such Lender under any such Section, in the case of each of
clauses (i) and (ii) above, in any order as determined by the Administrative Agent
in its discretion.
Β Β Β Β Β Β Β Β Β Β SECTION 2.18 Mitigation Obligations; Replacement of Lenders.
Β Β Β Β Β Β Β Β Β Β (a) Designation of a
Different Lending Office. If any Lender requests compensation under SectionΒ 2.14, or
if the Borrower is required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to SectionΒ 2.16, then such Lender shall
use reasonable efforts to designate a different lending office for funding or booking its Loans
hereunder or to assign its rights and obligations hereunder to another of its offices, branches or
affiliates, if, in the judgment of such Lender, such designation or assignment (i)Β would eliminate
or reduce amounts payable pursuant to SectionΒ 2.14 or SectionΒ 2.16, as the case may
be, in the future and (ii)Β would not subject such Lender to any unreimbursed cost or expense and
would not otherwise be disadvantageous to such Lender. The Borrower hereby agrees to pay all
reasonable costs and expenses incurred by any Lender in connection with any such designation or
assignment.
Β Β Β Β Β Β Β Β Β Β (b) Replacement of Lenders. If any Lender requests compensation under Section
2.14, or if the Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to SectionΒ 2.16, or if any
Lender becomes a Defaulting Lender, or if any Lender does not consent to a proposed amendment,
modification or waiver of this Agreement or any other Loan Document requested by the Borrower which
has been approved by the Required Lenders but which requires the consent of such Lender (or such
Lender and other Lenders) to become effective, or if any Tranche B Term Lender does not consent to
a proposed reduction of the Applicable Rate for Tranche B Term Loans which has been approved by the
Required Lenders of the Tranche B Term Loans, then the Borrower may, at its sole expense (and
without any obligation on the Administrative Agent or any Lender to cooperate or assist in any way
in locating an assignee), upon notice to such Lender and the Administrative Agent, (x)Β require such
Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions
contained in, and consents required by, SectionΒ 9.04), all of its interests, rights and
obligations under this Agreement and the related Loan Documents to an assignee that shall assume
such obligations (which assignee may be another Lender, if a Lender accepts such assignment) or (y)
in the case of any Lender that does not consent to a proposed amendment, modification or waiver of
this Agreement or any other Loan Document as aforesaid, terminate the Commitments of such Lender
and pay to such Lender an amount equal to the outstanding principal of its Loans and participations
in LC Disbursements and Swingline Loans, accrued interest thereon, accrued fees and all other
amounts payable to it hereunder and under the other Loan Documents (including any amounts under
SectionΒ 2.15), all simultaneously with an amendment and restatement of this Agreement that
does not result in the aggregate amount of the commitments of the Lenders to extend
credit thereunder to be less than the aggregate amount of the used and unused Commitments
hereunder as in effect immediately before giving effect to such amendment and restatement,
provided that:
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Β Β Β Β Β (i) if a Revolving Credit Commitment is being assigned, the Borrower shall have
received the prior written consent of the Administrative Agent and each Issuing Lender,
which consent shall not unreasonably be withheld;
Β Β Β Β Β (ii) such Lender shall have received payment of an amount equal to the outstanding
principal of its Loans and participations in LC Disbursements and Swingline Loans, accrued
interest thereon, accrued fees and all other amounts payable to it hereunder and under the
other Loan Documents (including any amounts under SectionΒ 2.15) from the assignee
(to the extent of such outstanding principal and accrued interest and fees) or the Borrower
(in the case of all other amounts); and
Β Β Β Β Β (iii) in the case of any such assignment resulting from a claim for compensation under
SectionΒ 2.14 or payments required to be made pursuant to SectionΒ 2.16, such
assignment will result in a reduction in such compensation or payments thereafter.
In connection with any such replacement, if the replaced Lender does not execute and deliver to the
Administrative Agent a duly completed Assignment and Assumption reflecting such replacement within
five Business Days of the date on which the replacement Lender executes and delivers such
Assignment and Assumption to the replaced Lender, then such replaced Lender shall be deemed to have
executed and delivered such Assignment and Assumption. A Lender shall not be required to make any
such assignment and delegation if, prior thereto, as a result of a waiver by such Lender or
otherwise, the circumstances entitling the Borrower to require such assignment and delegation cease
to apply.
Β Β Β Β Β Β Β Β Β Β SECTION 2.19 Defaulting Lenders. Notwithstanding any provision of this Agreement to
the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply
for so long as such Lender is a Defaulting Lender:
Β Β Β Β Β Β Β Β Β Β (a)Β fees shall cease to accrue on the unfunded portion of the Revolving Credit Commitment and
Tranche A Term Loan Commitment of such Defaulting Lender pursuant to SectionΒ 2.11(a);
Β Β Β Β Β Β Β Β Β Β (b)Β the Revolving Credit Commitment and Revolving Credit Exposure of such Defaulting Lender
shall not be included in determining whether the Required Lenders have taken or may take any action
hereunder (including any consent to any amendment, waiver or other modification pursuant to
SectionΒ 9.02); provided, that this clause (b) shall not apply to the vote
of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the
consent of such Lender or each Lender affected or directly affected thereby;
Β Β Β Β Β Β Β Β Β Β (c)Β if any Swingline Exposure or LC Exposure exists at the time such Lender becomes a
Defaulting Lender then:
Β Β Β Β Β (i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender
shall be reallocated among the non-Defaulting Revolving Credit Lenders in accordance
with their respective Applicable Percentages but only to the extent the sum of all
non-Defaulting Revolving Credit Lendersβ Revolving Credit Exposures plus such
Defaulting Lenderβs Swingline
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Exposure and LC
Exposure does not exceed the total of all non-Defaulting Revolving Credit Lendersβ
Commitments;
Β Β Β Β Β (ii) if the reallocation described in clause (i) above cannot, or can only
partially, be effected, the Borrower shall within one Business Day following notice by the
Administrative Agent (x) first, prepay such Swingline Exposure and (y)
second, cash collateralize for the benefit of the Issuing Lender only the Borrowerβs
obligations corresponding to such Defaulting Lenderβs LC Exposure (after giving effect to
any partial reallocation pursuant to clause (i) above) in accordance with the
procedures set forth in SectionΒ 2.05(k) for so long as such LC Exposure is
outstanding;
Β Β Β Β Β (iii) if the Borrower cash collateralizes any portion of such Defaulting Lenderβs LC
Exposure pursuant to clause (ii) above, the Borrower shall not be required to pay
any fees to such Defaulting Lender pursuant to SectionΒ 2.11(b) with respect to such
Defaulting Lenderβs LC Exposure during the period such Defaulting Lenderβs LC Exposure is
cash collateralized;
Β Β Β Β Β (iv) if the LC Exposure of the non-Defaulting Revolving Credit Lenders is reallocated
pursuant to clause (i) above, then the fees payable to the Lenders pursuant to
SectionΒ 2.11(b) shall be adjusted in accordance with such non-Defaulting Lendersβ
Applicable Percentages; and
Β Β Β Β Β (v) if all or any portion of such Defaulting Lenderβs LC Exposure is neither
reallocated nor cash collateralized pursuant to clause (i) or (ii) above,
then, without prejudice to any rights or remedies of the Issuing Lender or any other Lender
hereunder, all letter of credit fees payable under SectionΒ 2.11(b) with respect to
such Defaulting Lenderβs LC Exposure shall be payable to the Issuing Lender until and to the
extent that such LC Exposure is reallocated and/or cash collateralized; and
Β Β Β Β Β Β Β Β Β Β (d)Β so long as such Lender is a Defaulting Lender, no Swingline Lender shall be required to
fund any Swingline Loan and no Issuing Lender shall be required to issue, amend or increase any
Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lenderβs then
outstanding LC Exposure will be 100% covered by the Revolving Credit Commitments of the
non-Defaulting Revolving Credit Lenders and/or cash collateral will be provided by the Borrower in
accordance with SectionΒ 2.19(c), and participating interests in any newly made Swingline
Loan or any newly issued or increased Letter of Credit shall be allocated among non-Defaulting
Revolving Credit Lenders in a manner consistent with SectionΒ 2.19(c)(i) (and such
Defaulting Lender shall not participate therein).
Β Β Β Β Β Β Β Β Β Β If (i)Β a Bankruptcy Event with respect to a Parent of any Revolving Credit Lender shall occur
following the date hereof and for so long as such event shall continue or (ii)Β any Swingline Lender
or any Issuing Lender has a good faith belief that any Revolving Credit Lender has defaulted in
fulfilling its obligations under one or more other agreements in which such Lender commits to
extend credit, such Swingline Lender shall not be required to fund any Swingline Loan and such
Issuing Lender shall not be required to issue, amend or increase any Letter of Credit, unless such
Swingline Lender or such Issuing
Lender, as the case may be, shall have entered into arrangements with the Borrower or such
Lender,
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satisfactory to such Swingline Lender or such Issuing Lender, as the case may be, to
defease any risk to it in respect of such Lender hereunder.
Β Β Β Β Β Β Β Β Β Β In the event that the Administrative Agent, the Borrower, each Swingline Lender and each
Issuing Lender each agrees that a Defaulting Lender has adequately remedied all matters that caused
such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure of the Revolving
Credit Lenders shall be readjusted to reflect the inclusion of such Lenderβs Revolving Credit
Commitment and on such date such Lender shall purchase at par such of the Revolving Credit Loans of
the other Revolving Credit Lenders as the Administrative Agent shall determine may be necessary in
order for such Lender to hold such Loans in accordance with its Applicable Percentage.
Β Β Β Β Β Β Β Β Β Β SECTION 2.20 Illegality. Notwithstanding any other provision of this Agreement, in
the event that on or after the date hereof any Change in Law shall make it unlawful for any Lender
to make or maintain Eurodollar Loans as contemplated by this Agreement, such Lender shall promptly
give notice thereof to the Administrative Agent and the Borrower, and (i)Β the commitments of such
Lender hereunder to make Eurodollar Loans, to continue Eurodollar Loans as such and to convert ABR
Loans to Eurodollar Loans shall be suspended during the period of such illegality, (ii)Β such
Lenderβs Loans then outstanding as Eurodollar Loans, if any, shall be converted automatically to
ABR Loans on the respective last days of the then current Interest Periods with respect to such
Loans or within such earlier period as may be required by law and (iii)Β during the period of such
illegality any Loans of such Lender that would otherwise be made or continued as Eurodollar Loans
shall instead be made or continued, as the case may be, as ABR Loans. If any such conversion of a
Eurodollar Loan occurs on a day which is not the last day of the then current Interest Period with
respect thereto, the Borrower shall pay to such Lender such amounts, if any, as may be required
pursuant to SectionΒ 2.15.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Β Β Β Β Β Β Β Β Β Β The Borrower represents and warrants to the Administrative Agent and the Lenders that:
Β Β Β Β Β Β Β Β Β Β SECTION 3.01 Organization; Powers and Qualifications. Each of the Borrower and its
Subsidiaries is duly organized, validly existing and in good standing (or its equivalent) under the
laws of the jurisdiction of its organization, has all requisite power and authority to carry on its
business as now conducted and, except where the failure to do so, individually or in the aggregate,
could not reasonably be expected to result in a Material Adverse Effect, is qualified to do
business in, and is in good standing in, every jurisdiction where such qualification is required.
Β Β Β Β Β Β Β Β Β Β SECTION 3.02 Authorization; Enforceability. The Transactions are within the corporate
or other power of the Borrower and each Restricted Subsidiary and have been duly authorized by all
necessary corporate or other action (including, if required, equityholder action) on the part of
the Borrower and such Restricted Subsidiary. This Agreement has been duly executed and delivered
by the Borrower and constitutes, and each of the other Basic Documents to which the Borrower or any
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Restricted Subsidiary is a party when executed and delivered will constitute, a legal, valid
and binding obligation of the Borrower and such Restricted Subsidiary, enforceable against the
Borrower and such Restricted Subsidiary in accordance with its terms, except as such enforceability
may be limited by (a)Β bankruptcy, insolvency, reorganization, moratorium or similar laws of general
applicability affecting the enforcement of creditorsβ rights and (b)Β the application of general
principles of equity (regardless of whether such enforceability is considered in a proceeding in
equity or at law).
Β Β Β Β Β Β Β Β Β Β SECTION 3.03 Governmental Approvals; No Conflicts. The Transactions:
Β Β Β Β Β Β Β Β Β Β (a)Β do not require any consent or approval of, registration or filing with, or any other
action by, any Governmental Authority, except for (i)Β such as have been obtained or made and are in
full force and effect or in the case of the Acquisition, will have been obtained or made and will
be in full force and effect upon the consummation of the Acquisition, (ii)Β as may be required by
laws affecting the offering and sale of securities generally, (iii)Β filings with the United States
Copyright Office and/or the United States Patent and Trademark Office, (iv)Β filings under the UCC
and/or the Assignment of Claims Act (or analogous state applicable law), (v)Β any other filings and
recordings in respect of the Liens created pursuant to the Security Documents, and (vi)Β in the case
of the Acquisition consents, approvals, registrations or filings the failure of which to be
obtained or made could not reasonably be expected to result in a Material Adverse Effect,
Β Β Β Β Β Β Β Β Β Β (b)Β will not violate any applicable law or regulation or the charter, by-laws or other
organizational documents of the Borrower or any of its Subsidiaries or any order of any
Governmental Authority, except in the case of the Acquisition, for any violation of any law,
regulation or order (other than a law, regulation or order of the United States of America, any
state therein, the District of Columbia or any Governmental Authority of any thereof),
Β Β Β Β Β Β Β Β Β Β (c)Β will not violate or result in a default under any indenture, agreement or other instrument
binding upon the Borrower or any of its Subsidiaries or assets, or give rise to a right thereunder
to require any payment to be made by any such Person, and
Β Β Β Β Β Β Β Β Β Β (d)Β except for the Liens created pursuant to the Loan Documents, will not result in the
creation or imposition of any Lien on any asset of the Borrower or any of its Subsidiaries.
Β Β Β Β Β Β Β Β Β Β SECTION 3.04 Financial Condition; No Material Adverse Change.
Β Β Β Β Β Β Β Β Β Β (a) Financial Condition. The Borrower has heretofore furnished to the Lenders its
consolidated balance sheet and statements of income, stockholdersβ equity and cash flows (i)Β as of
and for the fiscal year ended JanuaryΒ 3, 2010, reported on by Xxxxx Xxxxxxxx LLC, independent
public accountants, and (ii)Β as of and for the fiscal period ended AprilΒ 4, 2010, certified by the
chief financial officer of the Borrower. Such financial statements present fairly, in all material
respects, the financial position and results of operations and cash flows of the Borrower and its
Subsidiaries and Other Consolidated Persons as of such dates and for such periods in accordance
with GAAP, subject to year-end
audit adjustments and the absence of footnotes in the case of the statements referred to in
clause (ii) of the first sentence of this paragraph.
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Β Β Β Β Β Β Β Β Β Β (b) No Material Adverse Change. Since JanuaryΒ 3, 2010, no event has occurred or
condition has arisen that has had or could reasonably be expected to have a Material Adverse
Effect.
Β Β Β Β Β Β Β Β Β Β
SECTION 3.05 Properties.
Β Β Β Β Β Β Β Β Β Β (a) Property Generally. Each of the Borrower and its
Restricted Subsidiaries has good title to, or valid leasehold interests in, all its real and
personal property material to its business, subject only to Liens permitted by SectionΒ 6.02
and except for minor defects in title that do not materially interfere with its ability to conduct
its business as currently conducted or to utilize such properties for their intended purposes.
Β Β Β Β Β Β Β Β Β Β (b) Intellectual Property Matters. Each of the Borrower and its Restricted
Subsidiaries owns, or is licensed to use, all trademarks, tradenames, copyrights, patents and other
intellectual property material to its business, and the use thereof by the Borrower and its
Restricted Subsidiaries does not infringe upon the rights of any other Person, except for any such
infringements that, individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect.
Β Β Β Β Β Β Β Β Β Β SECTION 3.06 Litigation.
Β Β Β Β Β Β Β Β Β Β (a) Actions, Suits and Proceedings. Other than the Disclosed Matters, there are no
actions, suits or proceedings by or before any arbitrator or Governmental Authority now pending
against or, to the knowledge of the Borrower, threatened against or affecting the Borrower or any
of its Subsidiaries, or that involve this Agreement or the Transactions, as to which there is a
reasonable possibility of an adverse determination and that, if adversely determined, could
reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect.
Β Β Β Β Β Β Β Β Β Β (b) Change in Disclosed Matters. Since the date of this Agreement, there has been no
change in the status of the Disclosed Matters that, individually or in the aggregate, has resulted
in, or materially increased the likelihood of, a Material Adverse Effect.
Β Β Β Β Β Β Β Β Β Β SECTION 3.07 Environmental Matters. Except for the Disclosed Matters and except with
respect to any other matters that, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, neither the Borrower nor any of its Restricted
Subsidiaries (i)Β has failed to comply with any Environmental Law or to obtain, maintain or comply
with any permit, license or other approval required under any Environmental Law, (ii)Β has become
subject to any Environmental Liability, (iii)Β has received written notice of any claim with respect
to any Environmental Liability or (iv)Β knows of any facts, events or circumstances that could give
rise to any basis for any Environmental Liability of the Borrower or any of its Restricted
Subsidiaries.
Β Β Β Β Β Β Β Β Β Β SECTION 3.08 Compliance with Laws and Agreements; No Defaults. Each of the Borrower
and its Restricted Subsidiaries is in compliance with all laws, regulations and orders of any
Governmental Authority applicable to it or its property and all indentures, agreements and
other instruments binding upon it or its property, except where the failure to do so, individually
or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect. No
Default has occurred and is continuing.
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Β Β Β Β Β Β Β Β Β Β SECTION 3.09 Government Regulation. Neither the Borrower nor any of its Subsidiaries
is an βinvestment companyβ as defined in, or subject to regulation under, the Investment Company
Act of 1940.
Β Β Β Β Β Β Β Β Β Β SECTION 3.10 Tax Returns and Payments. Each of the Borrower and its Subsidiaries has
timely filed or caused to be filed all material Tax returns and reports required to have been filed
and has paid or caused to be paid all Taxes required to have been paid by it, except (a)Β Taxes that
are being contested in good faith by appropriate proceedings and for which such Person has set
aside on its books adequate reserves with respect thereto in accordance with GAAP or (b)Β to the
extent that any such failure could not reasonably be expected to result in a Material Adverse
Effect.
Β Β Β Β Β Β Β Β Β Β SECTION 3.11 ERISA. No ERISA Event has occurred or is reasonably expected to occur
that, when taken together with all other such ERISA Events for which liability is reasonably
expected to occur, could reasonably be expected to result in a Material Adverse Effect. The
present value of all accumulated benefit obligations under each Plan (based on the assumptions used
for purposes of U.S. GAAP Codification Topic 715-30) did not, as of the date of the most recent
financial statements reflecting such amounts, exceed by more than $5,000,000 the fair market value
of the assets of such Plan, and the present value of all accumulated benefit obligations of all
underfunded Plans (based on the assumptions used for purposes of U.S. GAAP Codification Topic
715-30) did not, as of the date of the most recent financial statements reflecting such amounts,
exceed by more than $5,000,000 the fair market value of the assets of all such underfunded Plans.
Β Β Β Β Β Β Β Β Β Β SECTION 3.12 Disclosure. The Borrower has disclosed to the Lenders (including by
means of filings with the Securities and Exchange Commission) all agreements, instruments and
corporate or other restrictions to which it or any of its Subsidiaries is subject, and all other
matters known to it, that, individually or in the aggregate, could reasonably be expected to result
in a Material Adverse Effect. None of the reports, financial statements, certificates or other
information furnished in writing by or on behalf of the Borrower and its Restricted Subsidiaries to
the Lenders in connection with the negotiation of this Agreement and the other Loan Documents or
delivered hereunder or thereunder (as modified or supplemented by all other information so
furnished) contains any material misstatement of fact or omits to state any material fact necessary
to make the statements therein, in the light of the circumstances under which they were made, not
misleading; provided that, with respect to projected financial information, the Borrower
represents only that such information was prepared in good faith based upon assumptions believed to
be reasonable at the time.
Β Β Β Β Β Β Β Β Β Β SECTION 3.13 Margin Stock. Neither the Borrower nor any of its Subsidiaries is
engaged principally, or as one of its important activities, in the business of extending credit for
the purpose, whether immediate, incidental or ultimate, of buying or carrying Margin Stock, and no
part of the proceeds of any extension of credit hereunder will be used to buy or carry any Margin
Stock.
Β Β Β Β Β Β Β Β Β Β SECTION 3.14 Agreements and Liens.
Β Β Β Β Β Β Β Β Β Β (a) Indebtedness and Guaranty Obligations. PartΒ A of ScheduleΒ 3.14 of the
Disclosure Supplement is a complete and correct list of each credit agreement, loan agreement,
indenture, note purchase agreement, guarantee, letter of credit or other arrangement providing for
or otherwise
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relating to any Indebtedness or any extension of credit (or commitment for any
extension of credit) to, or Guarantee by, the Borrower or any of its Subsidiaries outstanding on
the date hereof the aggregate principal or face amount of which equals or exceeds (or may equal or
exceed) $1,000,000. The aggregate principal or face amount outstanding or that may become
outstanding under each such arrangement is correctly described in said PartΒ A of Schedule
3.14, and said PartΒ A of ScheduleΒ 3.14 correctly indicates whether each such
arrangement constitutes Unrestricted Subsidiary Debt Guaranteed by the Borrower or any Restricted
Subsidiary.
Β Β Β Β Β Β Β Β Β Β (b) Liens. PartΒ B of ScheduleΒ 3.14 of the Disclosure Supplement is a complete
and correct list of each Lien securing Indebtedness of any Person outstanding on the date hereof
the aggregate principal or face amount of which equals or exceeds (or may equal or exceed)
$1,000,000 and covering any property of the Borrower or any of its Subsidiaries, and the aggregate
Indebtedness secured (or that may be secured) by each such Lien and the property covered by each
such Lien is correctly described in said PartΒ B of ScheduleΒ 3.14.
Β Β Β Β Β Β Β Β Β Β SECTION 3.15 Material Contracts; Material Government Contracts of the Target Company.
Β Β Β Β Β Β Β Β Β Β (a) Material Contracts. Neither the Borrower nor any of its Subsidiaries is on the
date hereof or will be on the Acquisition Date (after giving effect to the consummation of the
Acquisition) party to any Material Contract other than the Merger Agreement, the Loan Documents and
the Senior Note Indenture.
Β Β Β Β Β Β Β Β Β Β (b) Material Government Contracts of the Target Company. Neither the Target Company
nor any of its Subsidiaries is on the date hereof party to any Government Contract that, after
giving effect to the consummation of the Acquisition, would be a Material Government Contract.
Β Β Β Β Β Β Β Β Β Β SECTION 3.16 Subsidiaries and Investments.
Β Β Β Β Β Β Β Β Β Β (a) Subsidiaries. Set forth in PartΒ A of ScheduleΒ 3.16 of the Disclosure
Supplement is a complete and correct list of all of the Subsidiaries of the Borrower as of the date
hereof together with, for each such Subsidiary, (i)Β the jurisdiction of organization of such
Subsidiary, (ii)Β each Person holding ownership interests in such Subsidiary, (iii)Β the nature of
the ownership interests held by each such Person and the percentage of ownership of such Subsidiary
represented by such ownership interests and (iv)Β an indication of whether such Subsidiary is a
Restricted Subsidiary. Except as disclosed in said PartΒ A of ScheduleΒ 3.16, on the date
hereof (x)Β each of the Borrower and its Subsidiaries owns free and clear of Liens (other than Liens
created pursuant to the Security Documents), and has the unencumbered right to vote, all
outstanding ownership interests in each Person shown to be held by it in said PartΒ A of
ScheduleΒ 3.16, (y)Β all of the issued and outstanding capital stock of each such Person
organized as a corporation is
validly issued, fully paid and nonassessable and (z)Β there are no outstanding Equity Rights
with respect to such Person.
Β Β Β Β Β Β Β Β Β Β (b) Investments. Set forth in PartΒ B of ScheduleΒ 3.16 of the Disclosure
Supplement is a complete and correct list of all Investments (other than Investments disclosed in
said PartΒ A of ScheduleΒ 3.16 and other than Investments of the types referred to in
clauses (b) through (n) of
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SectionΒ 6.04) held by the Borrower or any of its
Subsidiaries in any Person on the date hereof and, for each such Investment, (x)Β the identity of
the Person or Persons holding such Investment and (y)Β the nature of such Investment. Except as
disclosed in said PartΒ B of ScheduleΒ 3.16, each of the Borrower and its Subsidiaries owns,
free and clear of all Liens (other than Liens created pursuant to the Security Documents), all such
Investments.
Β Β Β Β Β Β Β Β Β Β SECTION 3.17 Real Property. Set forth on ScheduleΒ 3.17 of the Disclosure
Supplement is a list, as of the date hereof, of all of the real property interests held by the
Borrower and its Restricted Domestic Subsidiaries, indicating in each case whether the respective
property is owned or leased, the identity of the owner or lessee, the location of the respective
property and whether such property is covered by clause (ii) of the definition of
βMortgageβ in SectionΒ 1.01. Except as set forth in said ScheduleΒ 3.17, no Mortgage
encumbers real property which is located in an area that has been identified as an area having
special flood hazards and in which flood insurance has been made available under the National Flood
Insurance Act of 1968 (the βFlood Actβ).
Β Β Β Β Β Β Β Β Β Β SECTION 3.18 Solvency. The Borrower and each of its Subsidiaries is Solvent.
Β Β Β Β Β Β Β Β Β Β SECTION 3.19 Employee Relations. Neither the Borrower nor any Restricted Subsidiary
is, as of the Effective Date, party to any collective bargaining agreement nor has any labor union
been recognized as the representative of its employees except as set forth on Schedule
3.19. The Borrower knows of no pending, threatened or contemplated strikes, work stoppage or
other collective labor disputes involving its employees or those of its Restricted Subsidiaries.
Β Β Β Β Β Β Β Β Β Β SECTION 3.20 Burdensome Provisions. Neither the Borrower nor any Restricted
Subsidiary is a party to any indenture, agreement, lease or other instrument, or subject to any
corporate or partnership restriction, Governmental Approval or applicable law which in the
foreseeable future could be reasonably expected to have a Material Adverse Effect. The Borrower
and its Restricted Subsidiaries do not presently anticipate that future expenditures needed to meet
the provisions of any statutes, orders, rules or regulations of a Governmental Authority will be so
burdensome as to have a Material Adverse Effect. No Restricted Subsidiary (other than, with
respect to Unrestricted Subsidiary Debt, any Subsidiary that is an obligor under such Unrestricted
Subsidiary Debt) is party to any agreement or instrument of the type described in Section
6.07 or otherwise subject to any restriction or encumbrance that restricts or limits its
ability to make dividend payments or other distributions in respect of its capital stock to the
Borrower or any Restricted Subsidiary or to transfer any of its assets or properties to the
Borrower or any other Restricted Subsidiary in each case other than existing under or by reason of
the Loan Documents or applicable law.
ARTICLE IV
CONDITIONS
Β Β Β Β Β Β Β Β Β Β SECTION 4.01 Effective Date. This Agreement shall not be effective and the
obligations of the Lenders to make Loans and of the Issuing Lenders to issue Letters of Credit
hereunder
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shall not become effective until the date that each of the following conditions precedent is
satisfied, each of which shall be satisfactory to the Administrative Agent (and to the extent
specified below, to each Lender) in form and substance (or such condition shall have been waived in
accordance with SectionΒ 9.02):
Β Β Β Β Β (a) Executed Counterparts. The Administrative Agent (or Special Counsel)
shall have received counterparts of the following documents signed by the following parties
or written evidence satisfactory to the Administrative Agent (which may include telecopy
transmission of a signed signature page) that such party has signed: (i)Β from the Borrower,
a counterpart of this Agreement and (ii)Β from the Borrower and each of the Persons that will
be the initial Lenders hereunder a Lender Addendum providing in the aggregate for all such
Lender Addenda for Revolving Credit Commitments in an aggregate amount equal to
$400,000,000, Tranche A Term Loan Commitments in an aggregate amount equal to $150,000,000
and Tranche B Term Loan Commitments in an aggregate amount equal to $200,000,000.
Β Β Β Β Β (b) Opinion of Counsel to the Borrower and the Guarantors. The Administrative
Agent (or Special Counsel) shall have received a favorable written opinion (addressed to the
Administrative Agent and the Lenders and dated the Effective Date) of Akerman, Senterfitt &
Xxxxxx, PA, counsel for the Borrower and the Guarantors, substantially in the form of
ExhibitΒ G, and covering such other matters relating to the Borrower, the Guarantors, this
Agreement or the Transactions as the Administrative Agent or the Required Lenders shall
reasonably request (and the Borrower and each Guarantor hereby instructs such counsel to
deliver such opinion to the Lenders and the Administrative Agent).
Β Β Β Β Β (c) Opinion of Special Counsel. The Administrative Agent shall have received
an opinion, dated the Effective Date, of Special Counsel, substantially in the form of
ExhibitΒ H (and BNP Paribas hereby instructs such counsel to deliver such opinion to the
Lenders).
Β Β Β Β Β (d) Governmental and Third Party Approvals. The Administrative Agent (or
Special Counsel) shall have received evidence that the Borrower and each Restricted
Subsidiary shall have obtained all necessary approvals, authorizations and consents of any
Person and of all Governmental Authorities and courts having jurisdiction with respect to
the transactions contemplated by this Agreement and the other Loan Documents.
Β Β Β Β Β (e) Corporate Documents. The Administrative Agent (or Special Counsel) shall
have received such documents and certificates as the Administrative Agent or Special Counsel
may reasonably request relating to the organization, existence and good standing of the
Borrower and the Guarantors, the authorization of the Transactions and any other legal
matters relating to the Borrower, the Guarantors, this Agreement or the Transactions, all in
form and substance satisfactory to the Administrative Agent and its counsel.
Β Β Β Β Β (f) Officerβs Certificate. The Administrative Agent (or Special Counsel) shall
have received a certificate, dated the Effective Date and signed by the President, a Vice
President or a Financial Officer of the Borrower, to the effect that, on and as of the
Effective Date (i)Β the
representations and warranties of the Borrower and each Restricted Subsidiary set forth
in this
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Agreement and in each of the other Loan Documents to which it is a party are true
and correct and (ii)Β no Default has occurred and is continuing.
Β Β Β Β Β (g) Notes. The Administrative Agent (or Special Counsel) shall have received
for each Lender that shall have requested a promissory note, a duly completed and executed
promissory note for such Lender.
Β Β Β Β Β (h) Collateral Agreement. The Administrative Agent (or Special Counsel) shall
have received (i)Β the Collateral Agreement, duly executed and delivered by the Borrower,
each Restricted Domestic Subsidiary and the Administrative Agent, (ii)Β except as provided in
SectionΒ 5.11(e), original stock certificates or other certificates evidencing the capital
stock or other ownership interests pledged pursuant to the Collateral Agreement (to the
extent such ownership interests are certificated), together with an undated stock power for
each such certificate so received, duly executed in blank by the registered owner thereof,
and (iii)Β each original promissory note pledged pursuant to the Collateral Agreement. In
addition, all filings and recordations that are necessary to perfect the security interests
of the Lenders in the collateral described in the Security Documents (including, without
limitation, Assignment Agreements executed by the Borrower or the applicable Restricted
Subsidiary, as the case may be, and Notices of Assignment executed by the Administrative
Agent, in each case, with respect to each Material Government Contract existing as of the
Effective Date but, for the avoidance of doubt, not including acknowledgments of any such
Notices of Assignment executed by the relevant Governmental Authorities) shall have been
received by the Administrative Agent, and the Administrative Agent shall have received
evidence reasonably satisfactory to it that upon such filings and recordations, such
security interests constitute valid and perfected Liens therein, subject to no other Liens
except for Liens permitted by SectionΒ 6.02.
Β Β Β Β Β (i) Guaranty Agreement. The Administrative Agent (or Special Counsel) shall
have received the Guaranty Agreement, duly executed and delivered by the Borrower, the
Guarantors and the Administrative Agent.
Β Β Β Β Β (j) Collateral Assignment. The Administrative Agent (or Special Counsel)
shall have received the Collateral Assignment, duly executed and delivered by the Borrower,
each Guarantor and the Administrative Agent. In addition, the Borrower and each such
Guarantor shall have taken such other action as the Administrative Agent shall have
requested in order to perfect the security interests created pursuant to the Collateral
Assignment.
Β Β Β Β Β (k) Lien Search Results. The Administrative Agent (or Special Counsel) shall
have received the results of a recent lien search in each jurisdiction reasonably requested
by the Administrative Agent with respect to the Borrower and each Restricted Domestic
Subsidiary (to the extent obtainable in such jurisdiction), and such search results shall
not reveal Liens on any of the assets of the Borrower or any Restricted Subsidiary except
for Liens permitted hereunder or Liens to be discharged on or prior to the Effective Date
pursuant to documentation reasonably satisfactory to the Administrative Agent.
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Β Β Β Β Β (l) Insurance. The Administrative Agent (or Special Counsel) shall have
received certificates of insurance evidencing the existence of all insurance required to be
maintained by the Borrower and each of its Subsidiaries pursuant to SectionΒ 5.05(b)
and the designation of the Administrative Agent as the loss payee or additional named
insured, as the case may be, thereunder to the extent required by SectionΒ 5.05(b),
such certificates to be in such form and contain such information as is specified in
SectionΒ 5.05(b).
Β Β Β Β Β (m) Repayment of Indebtedness under Existing Credit Agreement. The
Administrative Agent shall have received evidence that the Borrower shall have paid or
repaid in full the principal of and interest on all of the βLoansβ outstanding under (and as
defined in) the Existing Credit Agreement and all other amounts owing by the Borrower and
its Subsidiaries thereunder and under the βLoan Documentsβ (as defined therein).
Β Β Β Β Β (n) Fees and Expenses. The Administrative Agent shall have received evidence
that the Borrower shall have paid such fees as the Borrower shall have agreed to pay to any
Lender or the Administrative Agent in connection herewith, including the reasonable fees and
expenses of Special Counsel, in connection with the negotiation, preparation, execution and
delivery of this Agreement and the other Loan Documents and the extensions of credit
hereunder (to the extent that statements for such fees and expenses have been delivered to
the Borrower).
Β Β Β Β Β (o) Patriot Act Compliance. The Administrative Agent shall have received all
documentation and other information required by regulatory authorities under applicable
βknow your customerβ and anti-money laundering rules and regulations, including without
limitation the USA PATRIOT Act referred to in SectionΒ 9.13.
Β Β Β Β Β (p) Other Documents. The Administrative Agent (or Special Counsel) shall have
received such other documents as the Administrative Agent or any Lender (or Special Counsel)
may reasonably request.
Β Β Β Β Β Β Β Β Β Β Notwithstanding the foregoing, the obligations of the Lenders to make Loans and of the Issuing
Lenders to issue Letters of Credit hereunder shall not become effective unless each of the
foregoing conditions is satisfied (or waived pursuant to SectionΒ 9.02) at or prior to 3:00
p.m., New York City time, on SeptemberΒ 30, 2010 (and, in the event such conditions are not so
satisfied or waived, the Commitments shall terminate at such time).
Β Β Β Β Β Β Β Β Β Β SECTION 4.02 Each Extension of Credit. The obligation of each Lender to make any
Loan (other than the extension of Loans made for the consummation of the Acquisition), and of each
Issuing Lender to issue, amend, renew or extend any Letter of Credit is subject to the satisfaction
of the following conditions:
Β Β Β Β Β (a) the Administrative Agent shall have received a Borrowing Request;
Β Β Β Β Β (b) the representations and warranties of the Borrower and each Restricted Subsidiary
set forth in this Agreement and in each of the other Loan Documents to which it is a party
shall be true and correct on and as of the date of such Loan or the date of issuance,
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amendment, renewal or extension of such Letter of Credit, as applicable (other than any
representations and warranties that speak as of a certain date, which shall be true and
correct on and as of such date); and
Β Β Β Β Β (c) at the time of and immediately after giving effect to such Loan or the issuance,
amendment, renewal, or extension of such Letter of Credit, as applicable, no Default shall
have occurred and be continuing.
Β Β Β Β Β Β Β Β Β Β Each Borrowing (other than Borrowings made for the consummation of the Acquisition) and each
issuance, amendment, renewal or extension of a Letter of Credit, as applicable, shall be deemed to
constitute a representation and warranty by the Borrower on the date thereof as to the matters
specified in the preceding sentence.
Β Β Β Β Β Β Β Β Β Β SECTION 4.03 Acquisition. The obligation of each Lender to make Tranche A Term Loans
and other Loans, and of each Issuing Lender to issue, amend, renew or extend any Letter of Credit,
in connection with the consummation of the Acquisition is additionally subject to the satisfaction
of the following conditions, each of which shall be satisfactory to the Administrative Agent in
form and substance (or such condition shall have been waived in accordance with Section
9.02):
Β Β Β Β Β (a) Consummation of Acquisition. The Administrative Agent (or Special Counsel)
shall have received evidence that the Acquisition shall have been (or shall be
simultaneously) consummated in all material respects in accordance with the terms of the
Merger Agreement (except for any modifications, supplements or material waivers thereof, or
written consents or determinations made by the parties thereto, that shall be consented to
by the Administrative Agent, such consent not to be unreasonably withheld), and the
Administrative Agent shall have received a certificate of a Financial Officer of the
Borrower to such effect and to the effect that attached thereto are true and complete copies
of the documents delivered in connection with the closing of the Acquisition pursuant to the
Merger Agreement. In addition, the Administrative Agent shall have received (or shall
receive substantially contemporaneously) (i)Β such other instruments as are customary for
transactions of this type or as the Administrative Agent may reasonably request (including,
without limitation, the analogous documents required to be delivered in Sections
4.01(b) and (e) with respect to the Target Company, its Subsidiaries and their
respective authorization to execute, deliver and perform the Merger Agreement and the
transactions contemplated therein, as applicable) and (ii)Β such evidence as the
Administrative Agent may reasonably request that the Acquisition does not violate the terms
of the Senior Note Indenture.
Β Β Β Β Β (b) Repayment of Target Company Debt. The Administrative Agent (or Special
Counsel) shall have received evidence satisfactory to it that (i)Β the repayment of the
$100,000,000 Amended and Restated Credit Agreement dated as of OctoberΒ 10, 2007 among the
Target Company, as borrower, the subsidiaries party thereto, the lenders party thereto,
JPMorgan Chase Bank, N.A., as administrative agent, and Bank of America, N.A., as
syndication agent, (ii)Β the discharge of 10.75% Senior Notes due 2012, issued by the Target
Company (collectively, the βTarget Company Debtβ) and (iii)Β the release of all
Liens, if any, securing the Target Company
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Debt, will take place substantially
simultaneously with the making of the Loans to finance the Acquisition.
Β Β Β Β Β (c) New Collateral and Guarantors. The Administrative Agent (or Special
Counsel) shall have received evidence satisfactory to it that each of the requirements under
SectionΒ 5.09 has been satisfied with respect to the Target Company and its
Subsidiaries. Without limiting the generality of the foregoing, the Administrative Agent
shall have received the following documents:
Β Β Β Β Β (i) Filings and Recordings. All filings and recordations that are
necessary to perfect the security interests of the Lenders in the collateral
described in the Collateral Agreement and acquired by the Borrower or any of its
Restricted Subsidiaries in connection with the Acquisition shall have been received
by the Administrative Agent, and the Administrative Agent shall have received
evidence reasonably satisfactory thereto that upon such filings and recordations
such security interests constitute valid and perfected first priority Liens therein.
Β Β Β Β Β (ii) Pledged Collateral. The Administrative Agent shall have received
(A)Β original stock certificates or other certificates evidencing the capital stock
or other ownership interests pledged pursuant to the Collateral Agreement (to the
extent such ownership interests are certificated) in connection with the
Acquisition, together with an undated stock power for each such certificate so
received, duly executed in blank by the registered owner thereof, and (B)Β each
original promissory note pledged pursuant to the Collateral Agreement in connection
with the Acquisition.
Β Β Β Β Β Β Β Β Β Β Notwithstanding the foregoing, the collateral shall not include assets that would
result in costs (administrative or otherwise) that, in the determination of the
Administrative Agent in its sole and absolute discretion, would be materially
disproportionate to the benefit obtained thereby.
Β Β Β Β Β (d) Representations and Warranties. The representations and warranties of the
Borrower and each Restricted Subsidiary under this Agreement and the other Loan Documents to
which it is a party shall be true and correct on and as of the Acquisition Date with the
same effect as if made on and as of the Acquisition Date, in each case, immediately before
and immediately after giving effect to the Acquisition; provided that the Borrower
and the Restricted Subsidiaries shall not be required to make any such representation or
warranty that is inaccurate (and the accuracy of any such representation or warranty shall
not constitute a condition precedent) if both (a)Β the Borrower shall have notified the
Administrative Agent at least three Business Days prior to the consummation of the
Acquisition of which such representation or warranty it cannot make, and describing the
inaccuracy in reasonable detail, and (b)Β such inaccuracy is not materially adverse with
respect to (i)Β the properties, business, operations, or condition (financial or otherwise)
of the Borrower and its Subsidiaries taken as a whole, (ii)Β the ability of the Borrower or
any of its Restricted Subsidiaries to perform its payment and other material obligations
under the Loan Documents or (iii)Β the validity or enforceability of any Loan Document or the
rights and remedies of the Administrative Agent or the Lenders thereunder.
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Β Β Β Β Β (e) Defaults. No Default shall have occurred and be continuing (i)Β at the time
of and immediately after giving effect to the issuance of Loans hereunder and (ii)
immediately before and immediately after giving effect to the Acquisition.
Β Β Β Β Β (f) Approvals. The Administrative Agent (or Special Counsel) shall have
received evidence that the Borrower and its Subsidiaries and the Target Company and its
Subsidiaries shall have obtained all necessary material approvals, authorizations and
consents of any Person and of all Governmental Authorities (including without limitation any
approvals required under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as
amended) and courts having jurisdiction with respect to the transactions contemplated by the
Acquisition.
Β Β Β Β Β (g) Litigation. Except as disclosed in the Disclosure Supplement, no action,
proceeding or investigation shall have been instituted or threatened in writing before any
Governmental Authority to enjoin, restrain, or prohibit, or to obtain substantial damages in
respect of, or which is related to or arises out of the Acquisition or the consummation of
the transactions contemplated thereby.
Β Β Β Β Β (h) Other Documents. The Administrative Agent shall have received such other
documents as the Administrative Agent or any Lender or Special Counsel may reasonably
request.
ARTICLE V
AFFIRMATIVE COVENANTS
Β Β Β Β Β Β Β Β Β Β Until the Commitments have expired or been terminated and the principal of and interest on
each Loan and all fees payable hereunder shall have been paid in full, and all Letters of Credit
shall have expired or been terminated and all LC Disbursements shall have been reimbursed, the
Borrower covenants and agrees with the Lenders that:
Β Β Β Β Β Β Β Β Β Β SECTION 5.01 Financial Statements and Other Information. The Borrower will furnish
to the Administrative Agent:
Β Β Β Β Β (a) within 90Β days after the end of each fiscal year of the Borrower, the audited
consolidated balance sheet and related statements of operations, stockholdersβ equity and
cash flows of the Borrower and its Subsidiaries and Other Consolidated Persons as of the end
of and for such year, setting forth in each case in comparative form the figures for (or, in
the case of the balance sheet, as of the end of) the previous fiscal year, all reported on
by Xxxxx Xxxxxxxx LLC or other independent public accountants of recognized national
standing (without a βgoing concernβ or like qualification or exception and without any
qualification or exception as to the scope of such audit) to the effect that such
consolidated financial statements present fairly in all material
respects the financial condition and results of operations of the Borrower and its
Subsidiaries on a consolidated basis in accordance with GAAP consistently applied (it being
understood and agreed
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that the Borrowerβs filing of a Form 10-K with the Securities and
Exchange Commission with respect to a fiscal year within the period specified above shall be
deemed to satisfy the Borrowerβs obligations under this SectionΒ 5.01(a) with respect
to such fiscal year);
Β Β Β Β Β (b) within 45Β days after the end of each of the first three fiscal quarters of each
fiscal year of the Borrower, the consolidated balance sheet and related statements of
operations, stockholdersβ equity and cash flows of the Borrower and its Subsidiaries and
Other Consolidated Persons as of the end of and for such fiscal quarter and the then elapsed
portion of the fiscal year, setting forth in each case in comparative form the figures for
(or, in the case of the balance sheet, as of the end of) the corresponding period or periods
of the previous fiscal year, all certified by a Financial Officer of the Borrower as
presenting fairly in all material respects the financial condition and results of operations
of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP
consistently applied, subject to normal year-end audit adjustments and the absence of
footnotes (it being understood and agreed that the Borrowerβs filing of a Form 10-Q with the
Securities and Exchange Commission with respect to a fiscal quarter within the period
specified above shall be deemed to satisfy the Borrowerβs obligations under this Section
5.01(b) with respect to such fiscal quarter);
Β Β Β Β Β (c) concurrently with any delivery of financial statements under clause (a) or
(b) of this Section, a certificate of a Financial Officer of the Borrower in form
and scope reasonably satisfactory to the Administrative Agent (an βOfficerβs Compliance
Certificateβ) (i)Β certifying as to whether a Default has occurred and, if a Default has
occurred, specifying the details thereof and any action taken or proposed to be taken with
respect thereto, (ii)Β setting forth reasonably detailed calculations demonstrating
compliance with SectionΒ 6.01, SectionΒ 6.02, SectionΒ 6.04,
SectionΒ 6.05 and SectionΒ 6.09, (iii)Β stating whether any change in GAAP or
in the application thereof has occurred since the date of the audited financial statements
referred to in SectionΒ 3.04 and, if any such change has occurred, specifying the
effect of such change on the financial statements accompanying such certificate and (iv)
stating the aggregate amount of Unrestricted Subsidiary Debt and the portion thereof
Guaranteed by the Borrower or any Restricted Subsidiary outstanding as of the last day of
the relevant fiscal quarter or fiscal year, as the case may be, and, in each case, the
aggregate amount of principal thereof and interest thereon paid by the Borrower and its
Restricted Subsidiary during the four fiscal quarters immediately preceding such day;
Β Β Β Β Β (d) concurrently with any delivery of financial statements under clause (a) of
this Section, a certificate of the accounting firm that reported on such financial
statements stating whether they obtained knowledge during the course of their examination of
such financial statements of any Default (which certificate may be limited to the extent
required by accounting rules or guidelines);
Β Β Β Β Β (e) promptly after periodic and other reports, proxy statements and other materials are
filed by the Borrower or any of its Subsidiaries with the Securities and Exchange
Commission, or any Governmental Authority succeeding to any or all of the functions of said
Commission, or with any national securities exchange, or distributed by the Borrower to
its shareholders generally, notice thereof;
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Β Β Β Β Β (f) promptly following any request therefor, such other information regarding the
operations, business affairs and financial condition of the Borrower or any of its
Subsidiaries, or compliance with the terms of this Agreement and the other Loan Documents,
as the Administrative Agent or any Lender may reasonably request; and
Β Β Β Β Β (g) within 30Β days after the beginning of each fiscal year commencing for fiscal year
2011, a business forecast of the Borrower and its Subsidiaries and Other Consolidated
Persons for such fiscal year to include the following: a projected income statement,
statement of cash flows and balance sheet (each prepared in accordance with GAAP, except for
the absence of footnotes) and, to the extent reasonably requested by the Administrative
Agent, managementβs assumptions underlying such projections, accompanied by a certificate
from a Financial Officer of the Borrower to the effect that, to the best of such officerβs
knowledge, such projections are good faith estimates (utilizing reasonable assumptions) of
the financial condition and operations of the Borrower and its Subsidiaries for such fiscal
year.
Β Β Β Β Β Β Β Β Β Β SECTION 5.02 Notices of Material Events. The Borrower will furnish to the
Administrative Agent prompt written notice of the following:
Β Β Β Β Β (a) (i)Β the occurrence of any Default, or (ii)Β any event which constitutes or which
with the passage of time or giving of notice or both would constitute a default or event of
default under any Material Contract to which the Borrower or any of its Subsidiaries is a
party or by which the Borrower or any Subsidiary thereof or any of their respective
properties may be bound;
Β Β Β Β Β (b) the filing or commencement of any action, suit or proceeding by or before any
arbitrator or Governmental Authority against or affecting the Borrower or any of its
Affiliates that, if adversely determined, could reasonably be expected to result in a
Material Adverse Effect;
Β Β Β Β Β (c) the occurrence of any ERISA Event that, alone or together with any other ERISA
Events that have occurred, could reasonably be expected to result in liability of the
Borrower and its Subsidiaries in an aggregate amount exceeding $5,000,000;
Β Β Β Β Β (d) any notice of any material violation received by the Borrower or any Subsidiary
thereof from any Governmental Authority including, without limitation, the assertion of any
environmental matters by any Person against, or with respect to the activities of, the
Borrower or any of its Subsidiaries and any alleged violation of or non-compliance with any
Environmental Laws or any permits, licenses or authorizations, other than, in each case, any
violation, environmental matters or alleged violation that, if adversely determined, would
not (either individually or in the aggregate) have a Material Adverse Effect;
Β Β Β Β Β (e) any labor controversy that has resulted in, or threatens to result in, a strike or
other work action against the Borrower or any of its Subsidiaries thereof which could
reasonably be expected to result in a Material Adverse Effect;
Β Β Β Β Β (f) contemporaneously with the delivery of the quarterly reports required herein, (and,
upon the occurrence and during the continuation of an Event of Default, on a more frequent
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basis if requested by the Administrative Agent), a list of all Material Government Contracts
which have (i)Β been completed or have lapsed or terminated and not renewed or (ii)Β been
entered into (or which have become Material Government Contracts) in each case, since the
most recent list provided by the Borrower and signed by a Financial Officer or other
executive officer of the Borrower as of the last Business Day of such fiscal quarter, unless
in any such case such information has been filed, and notice thereof furnished to the
Administrative Agent, as described in SectionΒ 5.01(e); and
Β Β Β Β Β (g) any other development that has resulted in, or could reasonably be expected to
result in, a Material Adverse Effect.
Β Β Β Β Β Β Β Β Β Β Each notice delivered under this Section shall be accompanied by a statement of a Financial
Officer or other executive officer of the Borrower setting forth the details of the event or
development requiring such notice and any action taken or proposed to be taken with respect
thereto.
Β Β Β Β Β Β Β Β Β Β SECTION 5.03 Existence; Conduct of Business. The Borrower will, and will cause each
of its Restricted Subsidiaries to, do or cause to be done all things necessary to preserve, renew
and keep in full force and effect its legal existence and the rights, licenses, permits, privileges
and franchises material to the conduct of its business; provided that the foregoing shall
not prohibit any merger, consolidation, liquidation or dissolution permitted under Section
6.03.
Β Β Β Β Β Β Β Β Β Β SECTION 5.04 Payment of Obligations. The Borrower will, and will cause each of its
Restricted Subsidiaries to, pay its obligations, including tax liabilities, that, if not paid,
could result in a Material Adverse Effect before the same shall become delinquent or in default
beyond the period of grace, except where (a)Β the validity or amount thereof is being contested in
good faith by appropriate proceedings, (b)Β the Borrower or such Restricted Subsidiary has set aside
on its books adequate reserves with respect thereto in accordance with GAAP and (c)Β the failure to
make payment pending such contest could not reasonably be expected to result in a Material Adverse
Effect.
Β Β Β Β Β Β Β Β Β Β SECTION 5.05 Maintenance of Properties; Insurance. The Borrower will, and will cause
each of its Restricted Subsidiaries to, (a)Β keep and maintain all property material to the conduct
of its business in good working order and condition, ordinary wear and tear excepted, and (b)
maintain, with financially sound and reputable insurance
companies, insurance in such amounts and against such risks as are customarily maintained by
companies engaged in the same or similar businesses operating in the same or similar locations,
with the Administrative Agent designated as the loss payee or additional named insured, and on the
Effective Date and from time to time thereafter deliver to the Administrative Agent upon its
request a detailed list of the insurance then in effect, stating the names of the insurance
companies, the amounts and rates of the insurance, the dates of the expiration thereof and the
properties and risks covered thereby. Such insurance policies shall provide that no cancellation
or material change in coverage shall be effective until after 30Β daysβ prior written notice to the
Administrative Agent. If any portion of the property covered by any Mortgage is located in an area
identified by the Federal Emergency Management Agency (or any successor agency) as an area having
special flood hazards and in which flood insurance has been made available under the the Flood Act,
then Borrower shall maintain, or cause the applicable Restricted Subsidiary to maintain, with a
financially sound and reputable insurer, flood insurance in an amount as the Administrative Agent
may from time to time reasonably require, but
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in no event less that an amount sufficient to comply
with all applicable rules and regulations promulgated pursuant to such Flood Act, and shall
otherwise comply with the National Flood Insurance Program as set forth in the Flood Disaster
Protection Act of 1973, as amended from time to time.
Β Β Β Β Β Β Β Β Β Β SECTION 5.06 Books and Records; Inspection Rights. The Borrower will, and will cause
each of its Restricted Subsidiaries to, keep proper books of record and account in which full, true
and correct entries are made of its dealings and transactions in relation to its business and
activities. The Borrower will, and will cause each of its Subsidiaries to, permit any
representatives designated by the Administrative Agent or any Lender, upon reasonable prior notice,
to visit and inspect its properties, to examine and make extracts from its books and records, and
to discuss its affairs, finances and condition with its officers and independent accountants, all
at such reasonable times and as often as reasonably requested.
Β Β Β Β Β Β Β Β Β Β SECTION 5.07 Compliance with Laws. The Borrower will, and will cause each of its
Restricted Subsidiaries to, comply with all laws, rules, regulations and orders of any Governmental
Authority applicable to it or its property, including ERISA and any Environmental Laws, except
where the failure to do so, individually or in the aggregate, could not reasonably be expected to
result in a Material Adverse Effect.
Β Β Β Β Β Β Β Β Β Β SECTION 5.08 Use of Proceeds and Letters of Credit. The proceeds of the Loans will
be used only (a)Β to refinance the Existing Credit Agreement, (b)Β for working capital and general
corporate requirements of the Borrower and its Restricted Subsidiaries and payment of certain fees
and expenses incurred in connection with the transactions contemplated hereby, (c)Β to finance the
Acquisition and any other acquisition permitted hereunder, (d)Β to fulfill the obligations of the
Borrower under the Acquisition Indemnity, (e)Β to repay the Target Company Debt, and (f)Β to fund
Restricted Payments permitted hereunder and to make any other Investments permitted hereunder;
provided, however, that the proceeds of Tranche A Term Loans shall only be used to
finance the Acquisition and to repay the Target Company Debt. No part of the proceeds of any Loan
will
be used, whether directly or indirectly, for any purpose that entails a violation of any of
the Regulations of the Board, including Regulations U and X.
Β Β Β Β Β Β Β Β Β Β SECTION 5.09 Additional Subsidiaries; Restricted and Unrestricted Subsidiaries.
Β Β Β Β Β Β Β Β Β Β (a) Additional Subsidiary Guarantors. The Borrower shall notify the Administrative
Agent of (i)Β each redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary in
accordance with SectionΒ 5.09(c) below and (ii)Β each creation or acquisition of any
Subsidiary, and (unless such Subsidiary has been designated as an Unrestricted Subsidiary pursuant
to SectionΒ 5.09(d)) promptly thereafter (and in any event within 30Β days thereafter), in
each of the cases referred to in the foregoing clauses (i) and (ii), cause such
Subsidiary (other than a Foreign Subsidiary) to (A)Β become a βGuarantorβ by executing and
delivering to the Administrative Agent a supplement to the Guaranty Agreement or such other
document as the Administrative Agent shall deem appropriate for such purpose, (B)Β deliver to the
Administrative Agent a duly executed Joinder Agreement and comply with the terms of each Security
Document, (C)Β take such action (including delivering such shares of stock and executing and
delivering such UCC financing statements and account control agreements) as shall be necessary to
create and perfect valid and enforceable Liens on substantially all of the personal property (other
than Excluded Property) of such Subsidiary as collateral security for the obligations of such
Subsidiary under the Loan
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Documents subject to no Liens other than Liens permitted by Section
6.02, (D)Β take all actions with respect to all Material Real Property owned or leased by such
Subsidiary required by SectionΒ 5.10 (as if such Material Real Property had been acquired by
a Subsidiary), (E)Β deliver to the Administrative Agent such proof of corporate action, incumbency
of officers, opinions of counsel (which shall cover, among other things, the legality, validity,
binding effect and enforceability of the documentation referred to in clauses (A),
(B), (C) and (D)) and other documents as is consistent with those delivered
by the Borrower pursuant to SectionΒ 4.01 on the Effective Date and (F)Β deliver to the
Administrative Agent such other documents and closing certificates as may be reasonably requested
by the Administrative Agent, all in form, content and scope reasonably satisfactory to the
Administrative Agent.
Β Β Β Β Β Β Β Β Β Β (b) Additional Foreign Subsidiaries. The Borrower shall notify the Administrative
Agent at the time that any Person becomes a direct Foreign Subsidiary of the Borrower or any
Guarantor, and at the request of the Administrative Agent, promptly thereafter (and in any event
within 45Β days after such request), cause (i)Β the Borrower or such Guarantor to deliver to the
Administrative Agent a supplement to the Security Documents pledging 65% of the total outstanding
voting Equity Interests, and 100% of all other Equity Interests, in such Foreign Subsidiary and a
consent thereto executed by such new Foreign Subsidiary (including, without limitation, if
applicable, original stock certificates (or the equivalent thereof pursuant to the applicable laws
and practices of any relevant foreign jurisdiction) evidencing such Equity Interest of such Foreign
Subsidiary, together with an appropriate undated stock power (or the equivalent thereof pursuant to
the applicable laws and practices of any relevant foreign jurisdiction) for each certificate (or
equivalent) duly executed in blank by the registered owner thereof), (ii)Β the Borrower or such
Guarantor to deliver to the Administrative Agent a favorable opinion of counsel (which shall cover,
among other things, the legality, validity, binding effect and enforceability of such pledge), and
(iii)Β the Borrower or such Guarantor to deliver to the Administrative Agent such other
documents and closing certificates as may be reasonably requested by the Administrative Agent,
all in form, content and scope reasonably satisfactory to the Administrative Agent.
Β Β Β Β Β Β Β Β Β Β (c) Designation of Restricted Subsidiaries. The Borrower may, at any time and upon
written notice to the Administrative Agent, designate an Unrestricted Subsidiary as a Restricted
Subsidiary.
Β Β Β Β Β Β Β Β Β Β (d) Designation of Unrestricted Subsidiaries. So long as no Default has occurred and
is continuing or would result therefrom, the Borrower may, on prior written notice to the
Administrative Agent, designate any Restricted Subsidiary as an Unrestricted Subsidiary (or
designate any newly formed or acquired Subsidiary as an Unrestricted Subsidiary). Such designation
shall have an effective date mutually acceptable to the Administrative Agent and Borrower, but in
no event earlier than five Business Days following receipt by the Administrative Agent of such
written notice.
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Β Β Β Β Β Β Β Β Β Β SECTION 5.10 New Collateral. If the Borrower or any Restricted Subsidiary shall
acquire any Material Real Property (or shall make improvements upon any existing real property
interest resulting in such interest together with such improvements constituting Material Real
Property), and, if the Administrative Agent elects to encumber such property in the Administrative
Agentβs sole and absolute discretion, then
Β Β Β Β Β Β Β Β Β Β (a)Β the Borrower will and will cause each Restricted Subsidiary to, no later than 120Β days (or
such longer period as the Administrative Agent may agree in its sole and absolute discretion)
thereafter, deliver to the Administrative Agent the following documents (each of which shall be
executed (and, where appropriate, acknowledged) by Persons satisfactory to the Administrative
Agent):
Β Β Β Β Β (i) Mortgages in form and substance satisfactory to the Administrative Agent, duly
executed and delivered by the Borrower or such Restricted Subsidiary, as the case may be, in
recordable form (in such number of copies as the Administrative Agent shall have requested)
and, to the extent necessary with respect to any leasehold property to be subject to a
Mortgage, use commercially reasonable efforts by Borrower to obtain consents of the
respective landlords with respect to such property and, to the extent necessary under
applicable law, for filing in the appropriate county land office(s), UCC financing
statements covering fixtures, in each case appropriately completed (the βFixture
Filingsβ);
Β Β Β Β Β (ii) one or more mortgagee policies of title insurance on forms of and issued by one or
more title companies satisfactory to the Administrative Agent (the βTitle
Companiesβ), insuring the validity and first lien priority of the Liens created under
the Mortgages for and in amounts satisfactory to the Administrative Agent, subject only to
such exceptions as are satisfactory to the Administrative Agent; each such title policy
shall contain: (A)Β full coverage against mechanicsβ liens (filed and inchoate) or such
surety bonds or other additional collateral as may be satisfactory to the Administrative
Agent in its sole discretion in lieu of such coverage, (B)Β a reference to the relevant
survey with no survey exceptions except those theretofore approved by the Administrative
Agent (such approval not to be unreasonably withheld or delayed) and (C)
such affirmative insurance and endorsements as the Administrative Agent may reasonably
require;
Β Β Β Β Β (iii) as-built surveys of recent date of each of the Facilities to be covered by the
Mortgages, showing such matters as may be required by the Administrative Agent, which
surveys shall be in form and content acceptable to the Administrative Agent, and certified
to the Administrative Agent and to each Lender and the Title Companies, and shall have been
prepared by a registered surveyor acceptable to the Administrative Agent;
Β Β Β Β Β (iv) certified copies of permanent and unconditional certificates of occupancy (or, if
it is not the practice to issue certificates of occupancy in a jurisdiction in which the
Facilities to be covered by the Mortgages are located, then such other evidence reasonably
satisfactory to the Administrative Agent) permitting the fully functioning operation and
occupancy of each such Facility and of such other permits necessary for the use and
operation of each such Facility issued by the respective Governmental Authorities having
jurisdiction over each such Facility;
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Β Β Β Β Β (v) opinions of local counsel in the respective jurisdictions in which the properties
covered by the Mortgages are located, satisfactory in form and substance to the
Administrative Agent (and the Borrower and each Restricted Subsidiary hereby instructs such
counsel to deliver such opinion(s) to the Lenders and the Administrative Agent);
Β Β Β Β Β (vi) a completed Federal Emergency Management Agency Standard Flood Hazard
Determination with respect to each property covered by a Mortgage; and
Β Β Β Β Β (vii) such affidavits, certificates, information (including financial data) and
instruments of indemnification (including a so-called βgapβ indemnification) as shall be
required to induce the Title Companies to issue the title policies and endorsements
contemplated above;
Β Β Β Β Β Β Β Β Β Β (b)Β the Borrower shall have paid or caused to be paid to the Title Companies (i)Β all expenses
and premiums of the Title Companies in connection with the issuance of such policies and (ii)Β an
amount equal to the recording, mortgage, intangibles, transfer and stamp taxes payable in
connection with recording the Mortgages and the Fixture Filings in the appropriate county land
office(s); and
Β Β Β Β Β Β Β Β Β Β (c)Β promptly after the acquisition, the Borrower shall diligently pursue and use all
reasonable efforts to obtain landlord consents, estoppel letters or consents and waivers, in form
and substance reasonably acceptable to the Administrative Agent, in respect of collateral held on
leased premises.
Β Β Β Β Β Β Β Β Β Β SECTION 5.11 Further Assurances; Post-Closing Deliverables.
Β Β Β Β Β Β Β Β Β Β (a) Further Assurances. The Borrower will, and will cause each of its Restricted
Subsidiaries to, take such action from time to time as shall reasonably be requested by the
Administrative
Agent to effectuate the purposes and objectives of this Agreement. Without limiting the
generality of the foregoing, the Borrower will, and will cause each of its Restricted Subsidiaries
to, take such action from time to time (including filing appropriate UCC financing statements and
executing and delivering such assignments, security agreements, account control agreements and
other instruments) as shall be reasonably requested by the Administrative Agent to create, in favor
of the Administrative Agent for the benefit of the Secured Parties, perfected security interests
and Liens in substantially all of the property of the Borrower and the Restricted Subsidiaries
(other than Excluded Property) as collateral security for obligations of the Borrower and the
Guarantors under the Loan Documents; provided that any such security interest or Lien shall
be subject to the relevant requirements of the Security Documents.
Β Β Β Β Β Β Β Β Β Β (b) Post-Closing Real Estate Deliverables. The Borrower will and will cause each
Restricted Subsidiary to, no later than 120Β days (or such longer period as the Administrative Agent
may agree in its sole and absolute discretion) after the Effective Date, deliver to the
Administrative Agent:
Β Β Β Β Β (i) Opinion(s) of Local Counsel. Opinions of local counsel in the respective
jurisdictions in which the properties covered by the Mortgages are located, satisfactory to
the Administrative Agent in form and substance (and the Borrower and each Guarantor hereby
instructs such counsel to deliver such opinion(s) to the Lenders and the Administrative
Agent).
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Β Β Β Β Β (ii) Mortgages and Title Insurance. The following documents, each of which
shall be executed (and, where appropriate, acknowledged) by Persons satisfactory to the
Administrative Agent; provided, that the Borrower shall not be required to deliver
the following documents for any property that is not Material Real Property if doing so
would result in costs (administrative or otherwise) that, in the determination of the
Administrative Agent in its sole and absolute discretion, would be materially
disproportionate to the benefit obtained thereby:
Β Β Β Β Β (A) Mortgages (or, if applicable, amendments to the Mortgages securing the
obligations of the Borrower and the Guarantors under the Existing Credit Agreement)
in form and substance satisfactory to the Administrative Agent, duly executed and
delivered by the Borrower or such Restricted Subsidiary, as the case may be, in
recordable form (in such number of copies as the Administrative Agent shall have
requested) and, to the extent necessary with respect to any leasehold property to be
subject to a Mortgage, use commercially reasonable efforts by Borrower to obtain
consents of the respective landlords with respect to such property and, to the
extent necessary under applicable law, for filing in the appropriate county land
office(s), Fixture Filings;
Β Β Β Β Β (B) one or more mortgagee policies of title insurance on forms of and issued by
the Title Companies, or modification and date down endorsements to the existing
policies of title insurance insuring the validity and first lien priority of the
Liens created under such Mortgages (as they may be amended) for and in amounts
satisfactory to the Administrative Agent, subject only to such exceptions as are
satisfactory to the Administrative Agent; each such title policy shall contain: (A)
full coverage against mechanicsβ liens (filed and inchoate) or such surety bonds or
other additional collateral as may be satisfactory to the Administrative Agent in
its sole discretion in lieu of such
coverage, (B)Β a reference to the relevant survey with no survey exceptions
except those theretofore approved by the Administrative Agent (such approval not to
be unreasonably withheld or delayed) and (C)Β such affirmative insurance and
endorsements as the Administrative Agent may reasonably require;
Β Β Β Β Β (C) as-built surveys of recent date of each of the Facilities to be covered by
the Mortgages, showing such matters as may be required by the Administrative Agent,
which surveys shall be in form and content acceptable to the Administrative Agent,
and certified to the Administrative Agent and to each Lender and the Title
Companies, and shall have been prepared by a registered surveyor acceptable to the
Administrative Agent or, with respect to existing surveys, an affidavit (a
βSurvey Affidavitβ) of an authorized signatory of the owner of such property
stating that there have been no improvements or encroachments to the property since
the date of the respective survey such that the existing survey is no longer
accurate, in form acceptable to the Administrative Agent and the applicable Title
Company in order to remove the standard survey exception;
Β Β Β Β Β (D) a completed Federal Emergency Management Agency Standard Flood Hazard
Determination with respect to each property covered by a Mortgage;
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Β Β Β Β Β (E) such affidavits, certificates, information (including financial data) and
instruments of indemnification (including a so-called βgapβ indemnification) as
shall be required to induce the Title Companies to issue the title policies and
endorsements contemplated above; and
Β Β Β Β Β (F) such other certificates, documents and information as are reasonably
requested by the Administrative Agent or the Lenders, including, without limitation,
engineering and structural reports, permanent certificates of occupancy and evidence
of zoning compliance, each in form and substance reasonably satisfactory to the
Administrative Agent.
Β Β Β Β Β Β Β Β Β Β In addition, the Borrower shall have paid to the Title Companies (i)Β all expenses and
premiums of the Title Companies in connection with the issuance of such policies and (ii)Β an
amount equal to the recording, mortgage, intangibles, transfer and stamp taxes payable in
connection with recording the Mortgages, any amendments to the Mortgages and the Fixture
Filings in the appropriate county land office(s).
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Β Β Β Β Β Β Β Β Β Β (c) Post-Closing Deliverables for Increases of the Revolving Credit Commitment and
Incremental Loans. The Borrower will and will cause each Restricted Subsidiary to, no later
than 120Β days (or such longer period as the Administrative Agent may agree in its sole and absolute
discretion) after any Revolving Credit Commitment Increase and Incremental Loan, deliver to the
Administrative Agent such amendments to Mortgages, title insurance and opinions of counsel as
reasonably requested by the Administrative Agent in connection with such Revolving Credit
Commitment Increase and Incremental Loan; provided, however, notwithstanding
anything herein or in any of the Loan Documents to the contrary, the Administrative Agent may, in
its sole and absolute discretion, waive the requirement
Β Β Β Β Β Β Β Β Β Β for the Borrower or any Restricted Subsidiary to obtain date-down endorsements to previously
issued mortgagee title insurance policies in connection with amendments to the Mortgages entered
into from time to time (each a βMortgage Amendmentβ), in order to insure the lien of such
Mortgage, as modified by any such Mortgage Amendment, if the applicable title insurance regulations
for the State in which the related real property is located do not provide for the issuance of the
requested endorsement such that a new mortgagee title insurance policy would otherwise be required
(or premium charges substantially equivalent thereto would be incurred by the Borrower or any
Restricted Subsidiary in connection with any endorsement); provided, further that,
in such event, the Borrower or Restricted Subsidiary shall endeavor to obtain an endorsement, if
available, to such previously issued mortgagee title insurance policies that insures that the title
insurance coverage provided by the original mortgagee title insurance policy is not affected by the
recording of any Mortgage Amendment, provided the cost for such endorsement is nominal.
Β Β Β Β Β Β Β Β Β Β (d) Post-Closing Account Control Agreement Deliverables. The Borrower will and will
cause each Restricted Subsidiary to, no later than 45Β days (or such longer period as the
Administrative Agent may agree in its sole and absolute discretion) after the Effective Date,
deliver to the Administrative Agent such account control agreements as shall be reasonably
requested by the Administrative Agent with respect to the Accounts of the Borrower and its
Restricted Subsidiaries.
Β Β Β Β Β Β Β Β Β Β (e) Certificates. The Borrower will and will cause each Restricted Subsidiary to, no
later than 45Β days (or such longer period as the Administrative Agent may agree in its sole and
absolute discretion) after the Effective Date, deliver to the Administrative Agent original stock
certificates or other certificates evidencing the capital stock or other ownership interests with
respect to the following Subsidiaries, to the extent pledged under the Collateral Agreement,
together with an undated stock power for each such certificate so received, duly executed in blank
by the registered owner thereof:
Β Β Β Β Β (i) Wackenhut Corrections Corporation N.V.;
Β Β Β Β Β (ii) Canadian Correctional Management, Inc.;
Β Β Β Β Β (iii) Miramichi Youth Centre Management, Inc.; and
Β Β Β Β Β (iv) Just Care, Inc.
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ARTICLE VI
NEGATIVE COVENANTS
Β Β Β Β Β Β Β Β Β Β Until the Commitments have expired or been terminated and the principal of and interest on
each Loan and all fees payable hereunder have been paid in full, and all Letters of Credit have
expired
or been terminated and all LC Disbursements shall have been reimbursed, the Borrower covenants
and agrees with the Lenders that:
Β Β Β Β Β Β Β Β Β Β SECTION 6.01 Indebtedness. The Borrower will not, nor will it permit any of its
Restricted Subsidiaries to, create, incur, assume or permit to exist any Indebtedness, except:
Β Β Β Β Β (a) Indebtedness created under the Loan Documents;
Β Β Β Β Β (b) Indebtedness existing on the date hereof and set forth in PartΒ A of Schedule
3.14 of the Disclosure Supplement (or, to the extent not meeting the minimum thresholds
for required listing on said ScheduleΒ 3.14 pursuant to SectionΒ 3.14, in an
aggregate amount not exceeding $10,000,000) and extensions, renewals, refinancings and
replacements of any such Indebtedness that does not result in an increase of the outstanding
principal amount thereof by more than the amount required to pay any penalty, premium,
accrued and unpaid interest, and transaction fees and expenses incurred in connection with
such extension, renewal, refinancing or replacement;
Β Β Β Β Β (c) Guarantees by the Borrower and its Restricted Subsidiaries of Indebtedness of the
Borrower and its Restricted Subsidiaries permitted by this SectionΒ 6.01;
Β Β Β Β Β (d) Guarantees permitted by SectionΒ 6.04 (other than paragraph (h)
thereof);
Β Β Β Β Β (e) Guarantees by the Borrower and its Restricted Subsidiaries of Unrestricted
Subsidiary Debt (including the assignment of rights under any Government Contract by the
Borrower or any of its Restricted Subsidiaries to secure Unrestricted Subsidiary Debt
related to such Government Contract); provided that the aggregate principal amount
of Guarantees of Unrestricted Subsidiary Debt permitted by this clause (e) shall not
exceed $30,000,000 at any time outstanding;
Β Β Β Β Β (f) Indebtedness of the Borrower or any Restricted Subsidiary incurred to finance the
acquisition, construction or improvement of any assets, including Capital Leases and any
Indebtedness assumed in connection with the acquisition of any assets or secured by a Lien
on any assets prior to the acquisition thereof, Guarantees by the Borrower or any Restricted
Subsidiary of any such Indebtedness, and extensions, renewals and replacements of any such
Indebtedness and Guarantees that do not increase the outstanding principal amount thereof;
provided that (i)Β such Indebtedness is incurred prior to or within 90Β days after
such acquisition or the completion of such construction or improvement and (ii)Β the
aggregate principal amount of Indebtedness permitted by this clause (f) shall not
exceed $20,000,000 at any time outstanding;
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Β Β Β Β Β (g) Indebtedness owing by the Borrower to any Restricted Subsidiary or by any
Restricted Subsidiary to the Borrower or to any other Restricted Subsidiary, in each case
arising from intercompany loans;
Β Β Β Β Β (h) unsecured Indebtedness for borrowed money, including by means of the issuance of
notes and bonds; provided that the aggregate principal amount of all such
Indebtedness incurred or issued on a date on which the Pro Forma Total Leverage Ratio (after
giving effect to such incurrence or issuance) is greater than or equal to 3.50 to 1.00 shall
not exceed $300,000,000;
Β Β Β Β Β (i) Indebtedness in an aggregate principal amount not exceeding $10,000,000 at any time
outstanding; and
Β Β Β Β Β (j) Indebtedness of any Person that becomes a Restricted Subsidiary after the date
hereof pursuant to an acquisition made by the Borrower or any Restricted Subsidiary;
provided that (i)Β such Indebtedness exists at the time of such acquisition and is
not created in contemplation of or in connection with such acquisition, (ii)Β such Person is
acquired pursuant to the Acquisition or any Permitted Acquisition and (iii)Β the aggregate
principal amount of Indebtedness permitted by this clause (j) shall not exceed
$25,000,000 at any time outstanding.
Β Β Β Β Β Β Β Β Β Β SECTION 6.02 Liens. The Borrower will not, nor will it permit any of its Restricted
Subsidiaries to, create, incur, assume or permit to exist any Lien on any property or asset now
owned or hereafter acquired by it, except:
Β Β Β Β Β (a) Liens created pursuant to the Security Documents;
Β Β Β Β Β (b) Permitted Encumbrances;
Β Β Β Β Β (c) any Lien on any property or asset of the Borrower or any of its Subsidiaries
existing on the date hereof and set forth in PartΒ B of ScheduleΒ 3.14 of the
Disclosure Supplement (or, to the extent not meeting the minimum thresholds for required
listing on said ScheduleΒ 3.14 pursuant to SectionΒ 3.14, in an aggregate
amount not exceeding $5,000,000); provided that (i)Β no such Lien shall extend to any
other property or asset of the Borrower or any of its Restricted Subsidiaries and (ii)Β any
such Lien shall secure only those obligations which it secures on the date hereof and
extensions, renewals and replacements thereof that do not increase the outstanding principal
amount thereof;
Β Β Β Β Β (d) Liens on assets acquired, constructed or improved by the Borrower or any
Subsidiary; provided that (i)Β such Liens secure Indebtedness permitted by clause
(f) of SectionΒ 6.01, (ii)Β such Liens and the Indebtedness secured thereby are
incurred prior to or within 90Β days after such acquisition or the completion of such
construction or improvement, (iii)Β the Indebtedness secured thereby does not exceed 100% of
the cost of acquiring, constructing or improving such fixed or capital assets and (iv)Β such
Liens shall not apply to any other property or assets of the Borrower or any Restricted
Subsidiary;
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Β Β Β Β Β (e) Liens securing Indebtedness permitted by SectionΒ 6.01(i), provided
that the aggregate principal amount of such Indebtedness so secured does not exceed
$5,000,000 at any time outstanding;
Β Β Β Β Β (f) the assignment of rights under any Government Contract by the Borrower or any of
its Restricted Subsidiaries to secure Unrestricted Subsidiary Debt related to such
Government Contract; and
Β Β Β Β Β (g) any Lien existing on any property or asset prior to the acquisition thereof by the
Borrower or any Restricted Subsidiary; provided that (i)Β such Lien is not created in
contemplation of or in connection with such acquisition, (ii)Β such Lien shall not apply to
any other property or assets of the Borrower or any Restricted Subsidiary, (iii)Β such Lien
shall secure only those obligations which it secures on the date of such acquisition, and
(iv)Β such property or asset is acquired pursuant to the Acquisition or any Permitted
Acquisition.
Β Β Β Β Β Β Β Β Β Β SECTION 6.03 Fundamental Changes. The Borrower will not, nor will it permit any of
its Restricted Subsidiaries to, enter into any transaction of merger or consolidation or
amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution).
The Borrower will not, nor will it permit any of its Restricted Subsidiaries to, acquire any
business or property from, or capital stock of, or be a party to any acquisition of, any Person
except for purchases of inventory and other property (other than assets and related rights
constituting an ongoing business) to be sold or used in the ordinary course of business and
Investments permitted under SectionΒ 6.04. The Borrower will not, nor will it permit any of
its Restricted Subsidiaries to, convey, sell, lease, transfer or otherwise dispose of, in one
transaction or a series of transactions, any part of its business or property, whether now owned or
hereafter acquired (including receivables and leasehold interests, but excluding (x)Β obsolete or
worn-out property, tools or equipment no longer used or useful in its business, (y)Β any inventory
or other property sold or disposed of in the ordinary course of business and on ordinary business
terms and (z)Β any Disposition resulting from a Casualty Event).
Β Β Β Β Β Β Β Β Β Β Notwithstanding the foregoing provisions of this Section, if no Default shall have occurred
and be continuing or would result therefrom:
Β Β Β Β Β (a) any Restricted Subsidiary of the Borrower may be merged or consolidated with or
into the Borrower or any other Restricted Subsidiary; provided that (i)Β if any such
transaction shall be between a Restricted Subsidiary and the Borrower, the Borrower shall be
the continuing or surviving entity and (ii)Β if any such transaction shall be between a
Restricted Subsidiary that is a Guarantor and a Restricted Subsidiary that is not a
Guarantor, such Guarantor shall be the continuing or surviving entity;
Β Β Β Β Β (b) any Restricted Subsidiary of the Borrower may merge into the Person such Restricted
Subsidiary was formed to acquire in connection with the Acquisition or any Permitted
Acquisition;
Β Β Β Β Β (c) any Restricted Subsidiary of the Borrower may sell, lease, transfer or otherwise
dispose of any or all of its property (upon voluntary liquidation or otherwise) to the
Borrower or
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any other Restricted Subsidiary; provided that if any such transaction
shall be between a Restricted Subsidiary that is a Guarantor and a Restricted Subsidiary
that is not a Guarantor, such Guarantor shall be the recipient of such property;
Β Β Β Β Β (d) the capital stock of any Subsidiary of the Borrower may be sold, transferred or
otherwise disposed of to the Borrower or any Guarantor;
Β Β Β Β Β (e) the Borrower or any Restricted Subsidiary may sell to any Governmental Authority
for fair market value (as determined by an independent appraisal made by a Person acceptable
to the Administrative Agent) (or, if less, the net book value when required by such
Governmental Authority) any Facility managed or operated by the Borrower or such Restricted
Subsidiary pursuant to a Government Contract with such Governmental Authority so long as the
aggregate amount of non-cash proceeds from all such sales do not exceed $10,000,000;
Β Β Β Β Β (f) the Borrower or any Restricted Subsidiary may sell or discount without recourse
accounts receivable arising in the ordinary course of business in connection with the
compromise or collection thereof in the ordinary course of business, provided that
the aggregate face or principal amount of all such accounts receivable sold or discounted
after the date hereof may not exceed $10,000,000;
Β Β Β Β Β (g) the Borrower or any Restricted Subsidiary may sell or otherwise dispose of assets
not otherwise permitted by this SectionΒ 6.03; provided that (i)Β such sale or
disposition shall be for cash for fair market value (as determined in good faith by the
board of directors of the Borrower, provided that, if the board of directors of the
Borrower so determines that the fair market value of such assets is equal to or greater than
$50,000,000, then the fair market value shall be determined by an independent appraisal made
by a Person acceptable to the Administrative Agent) and (ii)Β the aggregate book value of all
assets sold or disposed of pursuant to this clause (g) shall not exceed $300,000,000
in the aggregate after the date hereof;
Β Β Β Β Β (h) the Borrower or any Restricted Subsidiary may sell any property, business or assets
acquired in a Permitted Acquisition to the extent that the same is not related to the
construction, design, operation, development or operation of any Facility;
Β Β Β Β Β (i) the Borrower or any Restricted Subsidiary may sell Permitted Investments in the
ordinary course of business;
Β Β Β Β Β (j) the Borrower or any Restricted Subsidiary may make the Acquisition and Permitted
Acquisitions; and
Β Β Β Β Β (k) any Restricted Subsidiary of the Borrower may be merged or consolidated into any
Unrestricted Subsidiary of the Borrower provided that Borrower designates the continuing or
surviving entity as an Unrestricted Subsidiary in compliance with SectionΒ 5.09(d)
hereof.
Β Β Β Β Β Β Β Β Β Β For purposes of this SectionΒ 6.03, all determinations of fair market value of any
Facility shall include consideration of rights under any Government Contract transferred in
connection therewith.
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Β Β Β Β Β Β Β Β Β Β SECTION 6.04 Investments. The Borrower will not, nor will it permit any of its
Restricted Subsidiaries to, make or permit to remain outstanding any Investments except:
Β Β Β Β Β (a) Investments outstanding on the date hereof and identified in PartΒ B of Schedule
3.16 of the Disclosure Supplement;
Β Β Β Β Β (b) the Acquisition and Permitted Acquisitions;
Β Β Β Β Β (c) Permitted Investments;
Β Β Β Β Β (d) intercompany loans made by the Borrower to Restricted Subsidiaries and by
Restricted Subsidiaries to the Borrower or to other Restricted Subsidiaries,
provided that intercompany loans made to Restricted Subsidiaries that are not
Guarantors (i)Β may not exceed $25,000,000 in the aggregate principal amount at any time
outstanding and (ii)Β shall be evidenced by commercially reasonable promissory notes
delivered in pledge to the Administrative Agent under the Collateral Agreement;
Β Β Β Β Β (e) Hedging Agreements entered into to hedge, manage or mitigate risks to which the
Borrower or any Restricted Subsidiary is exposed in the conduct of its business or the
management of its liabilities;
Β Β Β Β Β (f) operating deposit accounts with banks;
Β Β Β Β Β (g) to the extent they constitute Investments, contributions to Plans and Multiemployer
Plans;
Β Β Β Β Β (h) Guarantees permitted by SectionΒ 6.01;
Β Β Β Β Β (i) Investments consisting of security deposits with utilities and other like Persons
made in the ordinary course of business;
Β Β Β Β Β (j) Investments in Unrestricted Subsidiaries, joint ventures and/or Other Consolidated
Persons in an aggregate amount for all such Investments made after the date hereof not to
exceed $60,000,000;
Β Β Β Β Β (k) Investments in an aggregate amount (excluding Equity Interests of the Borrower
and/or its Subsidiaries but including the assumption of Indebtedness in connection with such
Investments) made after the date hereof not exceeding the amount Net Available Proceeds from
Equity Issuances after the date hereof not required to be applied under Section
2.10(b)(ii) and not used to make Permitted Acquisitions;
Β Β Β Β Β (l) loans under the Acquisition Indemnity;
Β Β Β Β Β (m) additional Investments but not exceeding $10,000,000 in the aggregate at any time
outstanding; and
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Β Β Β Β Β (n) Investments in Subsidiaries of the Borrower outstanding on the date hereof (and any
refinancing thereof provided that the aggregate principal amount thereof is not increased).
Β Β Β Β Β For purposes of paragraph (m) of this Section, the aggregate amount of an Investment
at any time shall be deemed to be equal to (A)Β the aggregate amount of cash, together with the
aggregate fair market value of property, loaned, advanced, contributed, transferred or otherwise
invested that gives rise to such Investment minus (B)Β the aggregate amount of dividends,
distributions or other payments received in cash or property in respect of such Investment; the
amount of an Investment shall not in any event be reduced by reason of any write-off of such
Investment nor increased by any increase in the amount of earnings retained in the Person in which
such Investment is made that have not been dividended, distributed or otherwise paid out.
Β Β Β Β Β Β Β Β Β Β SECTION 6.05 Restricted Payments. The Borrower will not, nor will it permit any of
its Restricted Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly,
any Restricted Payment, except that
Β Β Β Β Β Β Β Β Β Β (a)Β any Restricted Subsidiary that is a real estate investment trust may purchase or redeem
its Equity Interests for cash in an aggregate amount not exceeding $200,000 after the date hereof;
Β Β Β Β Β Β Β Β Β Β (b)Β the Borrower may declare and pay dividends with respect to its capital stock payable
solely in additional shares of its common stock, and may make Restricted Payments pursuant to and
in accordance with stock option plans or other benefit plans established in the ordinary course of
business for directors, management, employees or consultants of the Borrower and its Subsidiaries;
Β Β Β Β Β Β Β Β Β Β (c)Β if no Default shall have occurred and be continuing or would result therefrom, the
Borrower may declare, pay and make Restricted Payments in an aggregate amount after the date hereof
not exceeding $50,000,000; and
Β Β Β Β Β Β Β Β Β Β (d)Β the Borrower may declare and make Restricted Payments in cash, subject to the satisfaction
of each of the following conditions on the date of each such Restricted Payment and after giving
effect thereto:
Β Β Β Β Β (i) no Default shall have occurred and be continuing;
Β Β Β Β Β (ii) the aggregate amount of Restricted Payments made since the Effective Date
(including such Restricted Payment) under this clause (d) shall not exceed an amount
equal to the aggregate of 50% of Net Income of the Borrower for the period from and
including JanuaryΒ 4, 2010 through and including the last day of the fiscal quarter of
Borrower most recently ended prior to the date of such Restricted Payment (treated for this
purposes as a single accounting period) and the aggregate amount of Net Available Proceeds
from Equity Issuances not required to prepay Loans pursuant to SectionΒ 2.10 hereof
and not used to make Permitted Acquisitions; and
Β Β Β Β Β (iii) the Pro Forma Senior Secured Leverage Ratio on the date of such Restricted
Payment shall not exceed 2.50 to 1.00.
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Β Β Β Β Β Notwithstanding the foregoing, any Restricted Payment constituting a dividend on the capital
stock of the Borrower may be made within 60Β days after the date of declaration of such dividend,
if, at the date of declaration, the dividend payment would have complied with Section
6.05(c) or SectionΒ 6.05(d).
Β Β Β Β Β Nothing herein shall be deemed to prohibit the payment of dividends by any Restricted
Subsidiary ratably in accordance with its outstanding Equity Interests, provided that the aggregate
amount of such dividends paid by any real estate investment trust may not exceed $75,000 in any
calendar year.
Β Β Β Β Β Β Β Β Β Β SECTION 6.06 Transactions with Affiliates. The Borrower will not, nor will it permit
any of its Restricted Subsidiaries to, sell, lease or otherwise transfer any property or assets to,
or purchase, lease or otherwise acquire any property or assets from, or otherwise engage in any
other transactions with, any of its Affiliates, except (a)Β transactions in the ordinary course of
business at prices and on terms and conditions not less favorable to the Borrower or such
Subsidiary than could be obtained on an armβs-length basis from unrelated third parties, (b)
transactions between or among the Borrower and its Restricted Subsidiaries not involving any other
Affiliate, (c)Β transactions expressly permitted to be undertaken with or for the benefit of
Affiliates by any of SectionsΒ 6.01, 6.03, and 6.04 and (c)Β Restricted
Payments permitted by SectionΒ 6.05.
Β Β Β Β Β Β Β Β Β Β SECTION 6.07 Restrictive Agreements. The Borrower will not, and will not permit any
of its Restricted Subsidiaries to, directly or indirectly, enter into, incur or permit to exist any
agreement or other arrangement that prohibits, restricts or imposes any condition upon (a)Β the
ability of the Borrower or any Restricted Subsidiary to create, incur or permit to exist any Lien
upon any of its assets, or (b)Β the ability of any Restricted Subsidiary to pay dividends or other
distributions with respect to any of its Equity Interests on a pro rata basis in respect of any
class of Equity Interests of such Restricted Subsidiary; provided that:
Β Β Β Β Β (i) the foregoing shall not apply to (x)Β restrictions and conditions imposed by the
Senior Note Indenture, by law or by any Loan Document, (y)Β restrictions and conditions
existing on the date hereof identified on ScheduleΒ 6.07 of the Disclosure Supplement
(but shall apply to any extension or renewal of, or any amendment or modification expanding
the scope of, any such
restriction or condition) and (z)Β customary restrictions and conditions contained in
agreements relating to the sale of a Restricted Subsidiary pending such sale,
provided that such restrictions and conditions apply only to the Restricted
Subsidiary that is to be sold and such sale is permitted hereunder; and
Β Β Β Β Β (ii) clause (a) of the foregoing shall not apply to (x)Β restrictions or
conditions imposed by any agreement relating to secured Indebtedness permitted by this
Agreement if such restrictions or conditions apply only to the property or assets securing
such Indebtedness, (y)Β customary provisions in leases and other contracts restricting the
assignment thereof and (z)Β customary restrictions imposed on any real estate investment
trust by the terms of preferred stock issued by such real estate investment trust requiring
the prior payment of dividends to its holders of such preferred stock, provided that
the aggregate amount of such dividends payable on all such preferred stock containing such
restrictions held by Persons other than the Borrower and its Restricted Subsidiaries shall
not exceed $75,000 for any calendar year.
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Β Β Β Β Β Β Β Β Β Β SECTION 6.08 Modifications of Certain Documents. The Borrower will not, nor will it
permit any of its Restricted Subsidiaries to, consent to any modification, supplement or waiver of
any of the provisions of the Merger Agreement without the consent of the Administrative Agent (not
to be unreasonably withheld) or any modification, supplement or waiver of any of the provisions of
the Senior Note Indenture without the consent of the Administrative Agent (not to be unreasoanbly
withheld), except for the addition of guarantors in accordance with the terms of the Senior Note
Indenture.
Β Β Β Β Β Β Β Β Β Β SECTION 6.09 Certain Financial Covenants.
Β Β Β Β Β Β Β Β Β Β (a) Total Leverage Ratio. The Borrower will not permit the Total Leverage Ratio on
the last day of any of its fiscal quarters to exceed the ratio set forth below opposite the period
in which such last day falls:
Β |
Β |
Β |
Β |
Β |
Period |
Β |
Maximum Ratio |
Β |
Β |
Β |
Β |
Β |
Β |
Effective Date through and including the last day of the
fiscal year 2011 |
Β |
Β |
4.50 to 1.00 |
Β |
Β |
Β |
Β |
Β |
Β |
First day of fiscal year 2012 through and including the
last day of the fiscal year 2012 |
Β |
Β |
4.25 to 1.00 |
Β |
Β |
Β |
Β |
Β |
Β |
Thereafter |
Β |
Β |
4.00 to 1.00 |
Β |
Β Β Β Β Β Β Β Β Β Β (b) Senior Secured Leverage Ratio. The Borrower will not permit the Senior Secured
Leverage Ratio on the last day of any of its fiscal quarters to exceed the ratio set forth below
opposite the period in which such last day falls:
Β |
Β |
Β |
Β |
Β |
Period |
Β |
Maximum Ratio |
Β |
Β |
Β |
Β |
Β |
Β |
Effective Date through and including the last day of the
fiscal year 2011 |
Β |
Β |
3.25 to 1.00 |
Β |
Β |
Β |
Β |
Β |
Β |
First day of fiscal year 2012 through and including the
last day of the fiscal year 2012 |
Β |
Β |
3.00 to 1.00 |
Β |
Β |
Β |
Β |
Β |
Β |
Thereafter |
Β |
Β |
2.75 to 1.00 |
Β |
Β Β Β Β Β Β Β Β Β Β (c) Interest Coverage Ratio. The Borrower will not permit the ratio of (a)Β Adjusted
EBITDA for any period of four consecutive fiscal quarters to (b)Β Interest Expense minus
Interest Expense attributable to Indebtedness of Unrestricted Subsidiaries and Other Consolidated
Persons that is Non-Recourse to the Borrower and the Restricted Subsidiaries for such four quarter
period, to be less than 3.00 to 1.00.
Β Β Β Β Β Β Β Β Β Β SECTION 6.10 Limitations on Exchange and Issuance of Equity Interests. The Borrower
will not, nor will it permit any of its Restricted Subsidiaries to, issue, sell or otherwise
dispose
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of any class or series of Equity Interests that, by its terms or by the terms of any
security into which it is convertible or exchangeable, is, or upon the occurrence of any event or
the lapse of time would be, (a)Β convertible or exchangeable into Indebtedness or (b)Β required to be
redeemed or repurchased, including at the option of the holder, in whole or in part.
Β Β Β Β Β Β Β Β Β Β SECTION 6.11 Nature of Business. The Borrower will not, nor will it permit any of
its Restricted Subsidiaries to, engage in any business other than a Permitted Business.
Β Β Β Β Β Β Β Β Β Β SECTION 6.12 Impairment of Security Interest. The Borrower will not, nor will it
permit any of its Restricted Subsidiaries to, take or omit to take any action, which might or would
have the result of materially impairing the security interests in favor of the Administrative Agent
with respect to the collateral granted in favor of the Administrative Agent for the benefit of the
Secured Parties or grant to any Person (other than the Administrative Agent for the benefit of
itself and the other Secured Parties pursuant to the Security Documents) any interest whatsoever in
such collateral, except for Liens permitted under SectionΒ 6.02 and asset sales permitted
under SectionΒ 6.03.
Β Β Β Β Β Β Β Β Β Β SECTION 6.13 Payments and Prepayments of Certain Debt. The Borrower will not, nor
will it permit any of its Restricted Subsidiaries to, cancel or forgive, make any voluntary or
optional payment or prepayment on, or redeem or acquire for value (including, without limitation,
by way of depositing with any trustee with respect thereto money or securities before due for the
purpose of payment when due) any Senior Notes; provided, however, notwithstanding
the foregoing, the Senior Notes may be repurchased, redeemed, acquired or defeased so long as the
aggregate amount of the amounts paid in respect thereof does not exceed the sum of (i)Β the
aggregate amount of Net Available Proceeds of the issuance of unsecured Indebtedness permitted
under SectionΒ 6.01(h) hereof (provided that the terms and conditions of such
Indebtedness do not require any payment or prepayment of any principal amount thereof before the
date falling 90Β days after the Term Loan Maturity Date for Tranche B Term Loans) plus (ii)
the aggregate amount of Net Available Proceeds from Equity Issuances not required to prepay Loans
pursuant to SectionΒ 2.10 hereof and not used to make Permitted Acquisitions plus
(iii)Β the aggregate amount of Restricted Payments otherwise permitted to be made, but not made,
under SectionΒ 6.05(c) or 6.05(d) hereof.
ARTICLE VII
EVENTS OF DEFAULT
Β Β Β Β Β Β Β Β Β Β SECTION 7.01 Events of Default. If any of the following events (each, an βEvent
of Defaultβ) shall occur:
Β Β Β Β Β (a) the Borrower shall fail to pay any principal of any Loan or any reimbursement
obligation in respect of any LC Disbursement when and as the same shall become due and
payable, whether at the due date thereof or at a date fixed for prepayment thereof or
otherwise;
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Β Β Β Β Β (b) the Borrower shall fail to pay any interest on any Loan or any fee or any other
amount (other than an amount referred to in clause (a) of this Section) payable
under this Agreement or under any other Loan Document, when and as the same shall become due
and payable, and such failure shall continue unremedied for a period of three or more
Business Days;
Β Β Β Β Β (c) any representation or warranty made or deemed made by or on behalf of the Borrower
or any of its Restricted Subsidiaries in or in connection with this Agreement or any other
Loan Document or any amendment or modification hereof or thereof, or any waiver hereunder or
thereunder, or in any report, certificate, financial statement or other document furnished
pursuant to or in connection with this Agreement or any other Loan Document or any amendment
or modification hereof or thereof, or any waiver hereunder or thereunder, shall prove to
have been incorrect when made or deemed made in any material respect; or any representation
or warranty made by or on behalf of the Target Company or any of its Subsidiaries under
the Merger Agreement or any other document delivered in connection therewith, shall prove to
have been incorrect when made or deemed made to the extent material to the business, assets,
property, condition (financial or otherwise) or prospects of the Borrower, the Target
Company and their respective Subsidiaries taken as a whole;
Β Β Β Β Β (d) the Borrower shall fail to observe or perform any covenant, condition or agreement
contained in SectionΒ 5.02(a)(i), SectionΒ 5.03 (with respect to the
Borrowerβs existence), SectionΒ 5.08, SectionΒ 5.09 and SectionΒ 5.10
or in ArticleΒ VI;
Β Β Β Β Β (e) the Borrower or any of its Restricted Subsidiaries shall fail to observe or perform
any covenant, condition or agreement contained in this Agreement or any other Loan Document
(other than those specified in clause (a), (b) or (d) of this
Section) and such failure shall continue unremedied for a period of 30 or more days after
notice thereof has been given to the Borrower by the Administrative Agent;
Β Β Β Β Β (f) the Borrower or any of its Restricted Subsidiaries shall fail to make any payment
of principal or interest (regardless of amount) in respect of any Material Indebtedness,
when and as the same shall become due and payable (after giving effect to any grace, cure or
notice periods as originally in effect, without regard to any extension of any such
periods);
Β Β Β Β Β (g) any event or condition shall occur that results in any Material Indebtedness
becoming due prior to its scheduled maturity or that enables or permits (with or without the
giving of notice, the lapse of time or both) the holder or holders of any Material
Indebtedness or any trustee or agent on its or their behalf to cause any Material
Indebtedness to become due, or to require the prepayment, repurchase, redemption or
defeasance thereof, prior to its scheduled maturity; provided that this clause
(g) shall not apply to Indebtedness that becomes due as a result of (x)Β the voluntary
sale or transfer of property or assets or any casualty in respect of property or assets or
(y)Β the furnishing of a notice of redemption or prepayment of such Indebtedness in
connection with a refinancing or replacement thereof permitted by SectionΒ 6.01 or
SectionΒ 6.13;
Β Β Β Β Β (h) an involuntary proceeding shall be commenced or an involuntary petition shall be
filed seeking (i)Β liquidation, reorganization or other relief in respect of the Borrower or
any of its
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Significant Subsidiaries or its debts, or of a substantial part of its assets,
under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now
or hereafter in effect or (ii)Β the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for the Borrower or any of its Significant
Subsidiaries or for a substantial part of its assets, and, in any such case, such proceeding
or petition shall continue undismissed for a period of 60 or more days or an order or decree
approving or ordering any of the foregoing shall be entered;
Β Β Β Β Β (i) the Borrower or any of its Significant Subsidiaries shall (i)Β voluntarily commence
any proceeding or file any petition seeking liquidation, reorganization or other relief
under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now
or hereafter in effect, (ii)Β consent to the institution of, or fail to contest in a timely
and appropriate manner, any
proceeding or petition described in clause (h) of this Section, (iii)Β apply for
or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator
or similar official for the Borrower or any of its Significant Subsidiaries or for a
substantial part of its assets, (iv)Β file an answer admitting the material allegations of a
petition filed against it in any such proceeding, (v)Β make a general assignment for the
benefit of creditors or (vi)Β take any corporate action for the purpose of authorizing any of
the foregoing;
Β Β Β Β Β (j) the Borrower or any of its Significant Subsidiaries shall admit in writing its
inability to pay its debts as they become due;
Β Β Β Β Β (k) (i)Β one or more judgments for the payment of money in an aggregate amount
(excluding any portion thereof covered by insurance issued by a creditworthy company that
has admitted liability in respect thereof) in excess of $7,500,000 shall be rendered against
the Borrower or any of its Subsidiaries or any combination thereof and the same shall remain
undischarged for a period of 30 consecutive days during which execution shall not be
effectively stayed, or any action shall be legally taken by a judgment creditor to attach or
levy upon any assets of the Borrower or any of its Subsidiaries to enforce any such
judgment, or (ii)Β a settlement of any shareholder litigation or shareholder derivative
action shall occur requiring the Borrower and/or any of its Restricted Subsidiaries to make
an aggregate payment of money with respect to such shareholder litigation or such
shareholder derivative action (excluding any portion thereof covered by insurance issued by
a creditworthy company that has admitted liability in respect thereof) in excess of
$25,000,000;
Β Β Β Β Β (l) an ERISA Event shall have occurred that, in the opinion of the Required Lenders,
when taken together with all other ERISA Events that have occurred, could reasonably be
expected to result in liability of the Borrower and its Subsidiaries in an aggregate amount
exceeding $5,000,000 in any year;
Β Β Β Β Β (m) any one or more Environmental Liability claims shall have been asserted against the
Borrower or any of its Restricted Subsidiaries; the Borrower and its Restricted Subsidiaries
would be reasonably likely to incur liability as a result thereof; and such Environmental
Liability claims could be reasonably expected, individually or in the aggregate, to have a
Material Adverse Effect;
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Β Β Β Β Β (n) a Change in Control shall occur; or
Β Β Β Β Β (o) any provision of this Agreement or any other Loan Document shall for any reason
cease to be valid and binding on the Borrower or Subsidiary party thereto or any such Person
shall so state in writing or the Liens created by the Security Documents shall at any time
not constitute a valid and perfected Lien on the collateral intended to be covered thereby
(to the extent perfection by filing, registration, recordation or possession is required
herein or therein) in favor of the Administrative Agent, free and clear of all other Liens
(other than Liens permitted under SectionΒ 6.02 or under the respective Security
Documents), or, except for expiration in accordance with its terms, any of the Security
Documents shall for whatever reason be terminated or cease to be in full force and effect,
or the enforceability thereof shall be contested by the Borrower;
then, and in every such event (other than an event with respect to the Borrower described in
clause (h) or (i) of this Section), and at any time thereafter during the
continuance of such event, the Administrative Agent may, and at the request of the Required Lenders
shall, by notice to the Borrower, take either or both of the following actions, at the same or
different times: (i)Β terminate the Commitments, and thereupon the Commitments shall terminate
immediately, and (ii)Β declare the Loans then outstanding to be due and payable in whole (or in
part, in which case any principal not so declared to be due and payable may thereafter be declared
to be due and payable), and thereupon the principal of the Loans so declared to be due and payable,
together with accrued interest thereon and all fees and other obligations of the Borrower accrued
hereunder, shall become due and payable immediately, without presentment, demand, protest or other
notice of any kind, all of which are hereby waived by the Borrower; and in case of any event with
respect to the Borrower described in clause (h) or (i) of this Section, the
Commitments shall automatically terminate and the principal of the Loans then outstanding, together
with accrued interest thereon and all fees and other obligations of the Borrower accrued hereunder,
shall automatically become due and payable, without presentment, demand, protest or other notice of
any kind, all of which are hereby waived by the Borrower.
Β Β Β Β Β Β Β Β Β Β SECTION 7.02 Application of Payments. (a)Β Anything herein to the contrary
notwithstanding (but subject to SectionΒ 7.02(b)), following the occurrence and during the
continuance of an Event of Default all payments received by the Administrative Agent (including any
payments received in respect of optional and mandatory prepayments under SectionΒ 2.10)
shall be applied as follows:
Β Β Β Β Β (i) first, to the payment to the Administrative Agent of its costs and
expenses, if any, of collection including reasonable out-of-pocket expenses of the
Administrative Agent and the fees and expenses of its agents and its counsel;
Β Β Β Β Β (ii) next, to the payment in full of the principal of and interest on the Loans
and to provide cover for all LC Exposure as specified in SectionΒ 2.05(k), in each
case ratably in accordance with the respective amounts thereof; and
Β Β Β Β Β (iii) finally, after the payment in full of the principal and interest on the
Loans and the provision of cover for all LC Exposure as specified in Section
2.05(k), to the Borrower, or its successors or assigns, or as a court of competent
jurisdiction may direct.
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Β Β Β Β Β Β Β Β Β Β (b)Β Anything herein to the contrary notwithstanding, following the occurrence and during the
continuance of an Event of Default all amounts received by the Administrative Agent pursuant to the
Security Documents shall be applied as follows:
Β Β Β Β Β (i) first, to the payment of the costs and expenses of the collection, sale or
other realization pursuant to the Security Documents, including reasonable out-of-pocket
costs and expenses of the Administrative Agent and the fees and expenses of its agents and
counsel, and all other expenses incurred and advances made by the Administrative Agent in
connection therewith;
Β Β Β Β Β (ii) next, to the payment in full of the Obligations, in each case (except to
the extent otherwise provided in SectionΒ 2.17) equally and ratably in accordance
with the respective amounts thereof then due and owing (for which purpose it is acknowledged
and agreed that any obligation then due and owing to deposit cash cover in respect of
outstanding Letters of Credit is an Obligation then due and owing) or as the Secured Parties
holding the same may otherwise agree; and
Β Β Β Β Β (iii) finally, to the payment to the Borrower, or its successors or assigns, or
as a court of competent jurisdiction may direct, of any surplus then remaining.
Β Β Β Β Β Notwithstanding the foregoing, the proceeds of any cash or other amounts held in the
Collateral Account pursuant to SectionΒ 2.05(k) shall be applied first to the LC
Exposure outstanding from time to time and second to the other Obligations in the manner
provided above in this SectionΒ 7.02(b).
ARTICLE VIII
AGENCY
Β Β Β Β Β Β Β Β Β Β SECTION 8.01 Administrative Agent. Each of the Lenders and the Issuing Lenders
hereby irrevocably appoints BNP Paribas to act on its behalf as the Administrative Agent hereunder
and under the other Loan Documents and authorizes the Administrative Agent to take such actions on
its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms
hereof and thereof, together with such actions and powers as are reasonably incidental thereto.
The provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders
and the Issuing Lenders, and the Borrower shall not have rights as a third party beneficiary of any
of such provisions.
Β Β Β Β Β Β Β Β Β Β The Person serving as the Administrative Agent hereunder shall have the same rights and powers
in its capacity as a Lender as any other Lender and may exercise the same as though it were not the
Administrative Agent and the term βLenderβ or βLendersβ shall, unless otherwise expressly indicated
or unless the context otherwise requires, include the Person serving as the Administrative Agent
hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from,
lend money
to, act as the financial advisor or in any other advisory capacity for and generally engage in
any kind of
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business with the Borrower or any Subsidiary or other Affiliate thereof as if such
Person were not the Administrative Agent hereunder and without any duty to account therefor to the
Lenders.
Β Β Β Β Β Β Β Β Β Β The Administrative Agent shall not have any duties or obligations except those expressly set
forth herein and in the other Loan Documents. Without limiting the generality of the foregoing,
the Administrative Agent:
Β Β Β Β Β (a) shall not be subject to any fiduciary or other implied duties, regardless of
whether a Default has occurred and is continuing;
Β Β Β Β Β (b) shall not have any duty to take any discretionary action or exercise any
discretionary powers, except discretionary rights and powers expressly contemplated hereby
or by the other Loan Documents that the Administrative Agent is required to exercise as
directed in writing by the Required Lenders (or such other number or percentage of the
Lenders as shall be expressly provided for herein or in the other Loan Documents),
provided that the Administrative Agent shall not be required to take any action
that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to
liability or that is contrary to any Loan Document or applicable law; and
Β Β Β Β Β (c) shall not, except as expressly set forth herein and in the other Loan Documents,
have any duty to disclose, and shall not be liable for the failure to disclose, any
information relating to the Borrower or any of its Affiliates that is communicated to or
obtained by the Person serving as the Administrative Agent or any of its Affiliates in any
capacity.
The Administrative Agent shall not be liable for any action taken or not taken by it (i)Β with the
consent or at the request of the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be
necessary, under the circumstances as provided in SectionΒ 9.02) or (ii)Β in the absence of
its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to
have knowledge of any Default unless and until notice describing such Default is given to the
Administrative Agent by the Borrower, a Lender or an Issuing Lender.
Β Β Β Β Β Β Β Β Β Β The Administrative Agent shall not be responsible for or have any duty to ascertain or inquire
into (i)Β any statement, warranty or representation made in or in connection with this Agreement or
any other Loan Document, (ii)Β the contents of any certificate, report or other document delivered
hereunder or thereunder or in connection herewith or therewith, (iii)Β the performance or observance
of any of the covenants, agreements or other terms or conditions set forth herein or therein or the
occurrence of any Default, (iv)Β the validity, enforceability, effectiveness or genuineness of this
Agreement, any other Loan Document or any other agreement, instrument or document or (v)Β the
satisfaction of any condition set forth in ArticleΒ IV or elsewhere herein, other than to
confirm receipt of items expressly required to be delivered to the Administrative Agent.
Β Β Β Β Β Β Β Β Β Β The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for
relying upon, any notice, request, certificate, consent, statement, instrument, document or other
writing (including any electronic message, Internet or intranet website posting or other
distribution)
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believed by it to be genuine and to have been signed, sent or otherwise authenticated
by the proper Person. The Administrative Agent also may rely upon any statement made to it orally
or by telephone and believed by it to have been made by the proper Person, and shall not incur any
liability for relying thereon. In determining compliance with any condition hereunder to the
making of a Loan, or the issuance, amendment, renewal or extension of a Letter of Credit, that by
its terms must be fulfilled to the satisfaction of a Lender or an Issuing Lender, the
Administrative Agent may presume that such condition is satisfactory to such Lender or such Issuing
Lender unless the Administrative Agent shall have received notice to the contrary from such Lender
or such Issuing Lender prior to the making of such Loan or the issuance, amendment, renewal or
extension of such Letter of Credit. The Administrative Agent may consult with legal counsel (who
may be counsel for the Borrower), independent accountants and other experts selected by it, and
shall not be liable for any action taken or not taken by it in accordance with the advice of any
such counsel, accountants or experts.
Β Β Β Β Β Β Β Β Β Β The Administrative Agent may perform any and all of its duties and exercise its rights and
powers hereunder or under any other Loan Document by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform
any and all of its duties and exercise its rights and powers by or through their respective Related
Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the
Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their
respective activities in connection with the syndication of the credit facilities provided for
herein as well as activities as Administrative Agent.
Β Β Β Β Β Β Β Β Β Β The Administrative Agent may at any time give notice of its resignation to the Lenders, the
Issuing Lenders and the Borrower. Upon receipt of any such notice of resignation, the Required
Lenders shall have the right, in consultation with the Borrower, to appoint a successor, which
shall be a bank with an office in the United States of America. If no such successor shall have
been so appointed by the Required Lenders and shall have accepted such appointment within 30Β days
after the retiring Administrative Agent gives notice of its resignation, then the retiring
Administrative Agent may on behalf of the Lenders and the Issuing Lenders, appoint a successor
Administrative Agent meeting the qualifications set forth above; provided that if the
Administrative Agent shall notify the Borrower and the Lenders that no qualifying Person has
accepted such appointment, then such resignation shall nonetheless become effective in accordance
with such notice and (1)Β the retiring Administrative Agent shall be discharged from its duties and
obligations hereunder and under the other Loan Documents and (2)Β all payments, communications and
determinations provided to be made by, to or through the Administrative Agent shall instead be made
by or to each Lender and each Issuing Lender directly, until such time as the Required Lenders
appoint a successor Administrative Agent as provided for above in this paragraph. Upon the
acceptance of a successorβs appointment as Administrative Agent hereunder, such successor shall
succeed to and become vested with all of the rights, powers, privileges and duties of the retiring
(or retired) Administrative Agent, and the retiring Administrative Agent shall be discharged from
all of its duties and obligations hereunder or under the other Loan Documents (if not already
discharged therefrom as provided above in this paragraph). The fees payable by the Borrower to a
successor Administrative Agent shall be the same as those payable to its predecessor unless
otherwise agreed between the Borrower and such successor. After the retiring Administrative
Agentβs resignation hereunder and under the other Loan Documents, the provisions of this Article
and SectionΒ 9.03 shall continue in effect for the benefit of
such retiring Administrative Agent, its sub-agents and their respective Related Parties in
respect of any
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actions taken or omitted to be taken by any of them while the retiring
Administrative Agent was acting as Administrative Agent.
Β Β Β Β Β Β Β Β Β Β Each Lender and each Issuing Lender acknowledges that it has, independently and without
reliance upon the Administrative Agent or any other Lender or any of their Related Parties and
based on such documents and information as it has deemed appropriate, made its own credit analysis
and decision to enter into this Agreement. Each Lender and each Issuing Lender also acknowledges
that it will, independently and without reliance upon the Administrative Agent or any other Lender
or any of their Related Parties and based on such documents and information as it shall from time
to time deem appropriate, continue to make its own decisions in taking or not taking action under
or based upon this Agreement, any other Loan Document or any related agreement or any document
furnished hereunder or thereunder.
Β Β Β Β Β Β Β Β Β Β Except as otherwise provided in SectionΒ 9.02(b) with respect to this Agreement, the
Administrative Agent may, with the prior consent of the Required Lenders (but not otherwise),
consent to any modification, supplement or waiver under any of the Loan Documents, provided
that, without the prior consent of each Lender, the Administrative Agent shall not (except as
provided herein or in the Security Documents) release all or substantially all of the collateral or
otherwise terminate all or substantially all of the Liens under any Security Document, agree to
additional obligations being secured by all or substantially all of such collateral (unless the
Lien for such additional obligations shall be junior to the Lien in favor of the other obligations
secured by such Security Document, in which event the Administrative Agent may consent to such
junior Lien provided that it obtains the consent of the Required Lenders thereto), alter
the relative priorities of the obligations entitled to the benefits of the Liens created under the
Security Documents with respect to all or substantially all of such collateral or release all or
substantially all of the Guarantors under the Loan Documents from their Guarantee obligations
thereunder, except that no such consent shall be required, and the Administrative Agent is hereby
authorized, to release any Lien covering property (and to release any such Guarantor) that is the
subject of a disposition of property permitted hereunder, a disposition to which the Required
Lenders have consented or the designation of any such Guarantor as an Unrestricted Subsidiary
pursuant to SectionΒ 5.09(d).
Β Β Β Β Β Β Β Β Β Β SECTION 8.02 Bookrunners, Etc. Anything herein to the contrary notwithstanding, the
Lead Arranger listed on the cover page hereof shall not have any powers, duties or responsibilities
under this Agreement or any of the other Loan Documents.
ARTICLE IX
MISCELLANEOUS
Β Β Β Β Β Β Β Β Β Β SECTION 9.01 Notices.
Β Β Β Β Β Β Β Β Β Β (a) Notices Generally. Except in the case of notices and other communications
expressly permitted to be given by telephone (and except as provided in paragraph (b)
below), all notices
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and other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or registered mail or sent by
telecopier, as follows:
Β |
(i) |
Β |
if to the Borrower: |
The GEO Group, Inc.
One Park Place
000 XX 00xx Xxxxxx
XxxxxΒ 000
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxx
Telephone No.: 000-000-0000
Telecopy No.: 000-000-0000
with copies to:
Akerman, Senterfitt & Xxxxxx, PA
Xxx Xxxxxxxxx Xxxxx Xxxxxx
00xx Xxxxx
Xxxxx, Xxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxxxxxxx
Telephone No.: 000-000-0000
Telecopy No.: 305-374-5095
and
The GEO Group, Inc.
One Park Place
000 XX 00xx Xxxxxx
XxxxxΒ 000
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxx Xxxxxx, Esq.
Telephone No.: 000-000-0000
Telecopy No.: 000-000-0000
Β |
(ii) |
Β |
if to the Administrative Agent: |
Β |
Β |
Β |
Β |
in the case of any Borrowing Request, notice of continuation/conversion,
notice of prepayment or other routine administrative notice, to: |
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BNP Paribas
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Loan Servicing Department
Telephone No.: (000)Β 000-0000
Telecopy No.: (000)Β 000-0000
in all other cases, to:
BNP Paribas
27th Floor
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxxxx
Telephone No.: (000)Β 000-0000
Telecopy No.: (000)Β 000-0000
with copies to:
BNP Paribas
000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxx Xxxx, Xxx Xxxxxx 00000
Attention: Loan Servicing Department
Telephone No.: (000)Β 000-0000
Telecopy No.: (000)Β 000-0000
Β Β Β Β Β (iii) if to a Lender, to it at its address (or telecopier number) set forth in its
Administrative Questionnaire.
Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall
be deemed to have been given when received; notices sent by telecopier shall be deemed to have been
given when sent (except that, if not given during normal business hours for the recipient, shall be
deemed to have been given at the opening of business on the next Business Day for the recipient).
Notices delivered through electronic communications to the extent provided in paragraph (b)
below, shall be effective as provided in said paragraph (b).
Β Β Β Β Β Β Β Β Β Β (b) Electronic Communications. Notices and other communications to the Lenders and
the Issuing Lenders hereunder may be delivered or furnished by electronic communication (including
e-mail and Internet or intranet websites) pursuant to procedures approved by the Administrative
Agent, provided that the foregoing shall not apply to notices to any Lender or any Issuing
Lender pursuant to
ArticleΒ II if such Lender or such Issuing Lender, as applicable, has notified the
Administrative Agent that it is incapable of receiving notices under such Article by electronic
communication. The Administrative Agent or the Borrower may, in its discretion, agree to accept
notices and other communications to it hereunder by electronic communications pursuant to
procedures approved by it, provided that approval of such procedures may be limited to
particular notices or communications.
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Β Β Β Β Β Β Β Β Β Β Unless the Administrative Agent otherwise prescribes, (i)Β notices and other communications
sent to an e-mail address shall be deemed received upon the senderβs receipt of an acknowledgment
from the intended recipient (such as by the βreturn receipt requestedβ function, as available,
return e-mail or other written acknowledgment), provided that if such notice or other
communication is not sent during the normal business hours of the recipient, such notice or
communication shall be deemed to have been sent at the opening of business on the next Business Day
for the recipient, and (ii)Β notices or communications posted to an Internet or intranet website
shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as
described in the foregoing clause (i) of notification that such notice or communication is
available and identifying the website address therefor.
Β Β Β Β Β Β Β Β Β Β (c) Change of Address, Etc. Any party hereto may change its address or telecopier
number for notices and other communications hereunder by notice to the other parties hereto (or, in
the case of any such change by a Lender, by notice to the Borrower and the Administrative Agent).
Β Β Β Β Β Β Β Β Β Β SECTION 9.02 Waivers; Amendments.
Β Β Β Β Β Β Β Β Β Β (a) No Deemed Waivers; Remedies Cumulative. No failure or delay by the Administrative
Agent, any Issuing Lender or any Lender in exercising any right, power or remedy hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of any such right or power,
or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other
or further exercise thereof or the exercise of any other right or power. The rights and remedies
of the Administrative Agent, the Issuing Lenders and the Lenders hereunder are cumulative and are
not exclusive of any rights, powers or remedies that they would otherwise have. No waiver of any
provision of this Agreement or consent to any departure by the Borrower therefrom shall in any
event be effective unless the same shall be permitted by paragraph (b) of this Section, and
then such waiver or consent shall be effective only in the specific instance and for the purpose
for which given. Without limiting the generality of the foregoing, the making of a Loan or
issuance, amendment, renewal or extension of a Letter of Credit shall not be construed as a waiver
of any Default, regardless of whether the Administrative Agent, any Lender or any Issuing Lender
may have had notice or knowledge of such Default at the time.
Β Β Β Β Β Β Β Β Β Β (b) Amendments. Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to an agreement or agreements in writing entered into by the
Borrower and the Required Lenders or by the Borrower and the Administrative Agent with the consent
of the Required Lenders; provided that no such agreement shall
Β Β Β Β Β (i) increase any Commitment of any Lender without the written consent of each Lender
directly affected thereby,
Β Β Β Β Β (ii) reduce the principal amount of any Loan or LC Disbursement or reduce the rate of
interest thereon, or reduce any fees payable hereunder, without the written consent of each
Lender directly affected thereby,
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Β Β Β Β Β (iii) postpone the scheduled date of payment of the principal amount of any Loan or LC
Disbursement, or any interest thereon, or any fees payable hereunder, or reduce the amount
of, waive or excuse any such payment, or postpone the scheduled date of expiration of any
Commitment, without the written consent of each Lender directly affected thereby,
Β Β Β Β Β (iv) change SectionΒ 2.17(c) or (d) in a manner that would alter the pro
rata sharing of payments required thereby without the written consent of each Lender
directly affected thereby,
Β Β Β Β Β (v) change any of the provisions of this Section or the percentage in the definition of
the term βRequired Lendersβ or any other provision hereof specifying the number or
percentage of Lenders required to waive, amend or modify any rights hereunder or make any
determination or grant any consent hereunder, without the written consent of each Lender,
Β Β Β Β Β (vi) permit any subordination of the principal or interest on any Loan or the
obligation of the Borrower to reimburse the Issuing Lender pursuant to Section
2.05(f) for all LC Disbursements, without the prior written consent of each Lender,
Β Β Β Β Β (vii) release the Borrower from its obligations under the Loan Documents without the
prior written consent of each Lender,
Β Β Β Β Β (viii) permit any assignment (other than as specifically permitted or contemplated in
this Agreement) of any of the Borrowerβs rights and obligations hereunder without the prior
written consent of each Lender,
Β Β Β Β Β (ix) release all or substantially all of the collateral granted in favor of the
Administrative Agent for the benefit of the Secured Parties or release any Security Document
(other than disposition of assets permitted pursuant to SectionΒ 6.03 and as
otherwise specifically permitted or contemplated in this Agreement or the applicable
Security Document) without the prior written consent of each Lender,
Β Β Β Β Β (x) release all or substantially all of the Guarantors from their obligations under the
Guaranty Agreement without the prior written consent of each Lender, except as expressly
contemplated by any of the Loan Documents, or
Β Β Β Β Β (xi) change SectionΒ 2.10(b)(vi) or 7.02 or SectionΒ 5.4 of the
Collateral Agreement in a manner that would alter the application of payments required
thereby without the written consent of each Lender,
and provided further that no such agreement shall amend, modify or otherwise affect
the rights or duties of the Administrative Agent, any Issuing Lender or any Swingline Lender
hereunder without the prior written consent of the Administrative Agent, such Issuing Lender or
such Swingline Lender, as the case may be.
Β Β Β Β Β Β Β Β Β Β (c) Amend and Extend. Notwithstanding anything contained herein to the contrary, any
amendment or modification that extends the date required for the payment of principal of any Loan
of
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Class and/or the termination date for any Commitment of any Class (which amendment or
modification may but shall not be required to include increasing the Applicable Rate for any Lender
that agrees to such extension for its Loans and/or Commitments of such Class (a βConsenting
Lenderβ)) shall require only the consents of (i)Β the Borrower and the Guarantors, (ii)Β such
Consenting Lender, (iii)Β the Required Lenders of such Class, (v)Β the Administrative Agent and (vi)
if such Class includes Revolving Credit Loans and/or Revolving Credit Commitments, each Issuing
Lender and Swingline Lender affected thereby. No such extension shall apply to any Loan or any
Commitment of any Lender that is not a Consenting Lender.
Β Β Β Β Β Β Β Β Β Β (d) Waivers of Certain Conditions. Anything in this Agreement to the contrary
notwithstanding, no waiver or modification of any provision of this Agreement that has the effect
(either immediately or at some later time) of enabling the Borrower to satisfy a condition
precedent to the making of a Loan of any Class shall be effective against the Lenders of such Class
for purposes of the Commitments of such Class unless the Required Lenders of such Class shall have
concurred with such waiver or modification, and no waiver or modification of any provision of this
Agreement or any other Loan Document that could reasonably be expected to adversely affect the
Lenders of any Class in a manner that does not affect all Classes equally shall be effective
against the Lenders of such Class unless the Required Lenders of such Class shall have concurred
with such waiver or modification.
Β Β Β Β Β Β Β Β Β Β SECTION 9.03 Expenses; Indemnity; Damage Waiver.
Β Β Β Β Β Β Β Β Β Β (a) Costs and Expenses. The Borrower shall pay (i)Β all reasonable out-of-pocket
expenses incurred by the Administrative Agent and its Affiliates (including the reasonable fees,
charges and disbursements of counsel for the Administrative Agent), in connection with the
syndication of the credit facilities provided for herein, the preparation, negotiation, execution,
delivery and administration of this Agreement and the other Loan Documents or any amendments,
modifications or waivers of the provisions hereof or thereof (whether or not the transactions
contemplated hereby or thereby shall be consummated), (ii)Β all reasonable out-of-pocket expenses
incurred by any Issuing Lender in connection with the issuance, amendment, renewal or extension of
any Letter of Credit or any demand for payment thereunder, (iii)Β all out-of-pocket expenses
incurred by the Administrative Agent, any Issuing Lender or any Lender (including the fees, charges
and disbursements of any counsel for the Administrative Agent, any Issuing Lender or any Lender) in
connection with the enforcement or protection of its rights, whether in any action, work-out,
restructuring, suit or litigation, or any bankruptcy, insolvency or other similar proceeding
affecting creditorsβ rights generally, (A)Β in connection with this Agreement and the other Loan
Documents, including its rights under this Section, or (B)Β in connection with the Loans made or
Letters of Credit issued hereunder, including all such out-of-pocket expenses incurred during any
workout, restructuring or negotiations in respect of such Loans or Letters of Credit and (iv)
and all costs, expenses, taxes, assessments and other charges incurred in connection with any
filing, registration, recording or perfection of any security interest contemplated by any Security
Document or any other document referred to therein.
Β Β Β Β Β Β Β Β Β Β (b) Indemnification by the Borrower. The Borrower shall indemnify the Administrative
Agent (and any sub-agent thereof), the Lead Arranger, each Lender, each Swingline Lender and each
Issuing Lender, and each Related Party of any of the foregoing Persons (each such Person being
called an βIndemniteeβ) against, and hold each Indemnitee harmless from, any and all
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losses, claims, damages, liabilities and related expenses (including the fees, charges and
disbursements of any counsel for any Indemnitee), and shall indemnify and hold harmless each
Indemnitee from all fees and time charges and disbursements for attorneys who may be employees of
any Indemnitee, incurred by any Indemnitee or asserted against any Indemnitee by any third party or
by the Borrower arising out of, in connection with, or as a result of (i)Β the execution or delivery
of this Agreement, any other Loan Document or any agreement or instrument contemplated hereby or
thereby, the performance by the parties hereto of their respective obligations hereunder or
thereunder or the consummation of the transactions contemplated hereby or thereby, (ii)Β any Loan or
Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by any
Issuing Lender to honor a demand for payment under a Letter of Credit if the documents presented in
connection with such demand do not strictly comply with the terms of such Letter of Credit) and any
payments that the Administrative Agent is required to make under any indemnity issued to any bank
to which remittances in respect of Accounts, as defined in the Collateral Agreement, are to be
made, (iii)Β any actual or alleged presence or release of Hazardous Materials on or from any
property owned or operated by the Borrower or any of its Subsidiaries, or any environmental matters
related in any way to the Borrower or any of its Subsidiaries, or (iv)Β any actual or prospective
claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on
contract, tort or any other theory, whether brought by a third party or by the Borrower, and
regardless of whether any Indemnitee is a party thereto, provided that such indemnity shall
not, as to any Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses (x)Β are determined by a court of competent jurisdiction by final
and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such
Indemnitee or (y)Β result from a claim brought by the Borrower against an Indemnitee for breach in
bad faith of such Indemniteeβs obligations hereunder or under any other Loan Document, if the
Borrower has obtained a final and nonappealable judgment in its favor on such claim as determined
by a court of competent jurisdiction.
Β Β Β Β Β Β Β Β Β Β (c) Reimbursement by Lenders. To the extent that the Borrower for any reason fails to
indefeasibly pay any amount required under paragraph (a) or (b) of this Section to
be paid by it to the Administrative Agent (or any sub-agent thereof), an Issuing Lender or a
Swingline Lender or any Related Party of any of the foregoing, each Lender severally agrees to pay
to the Administrative Agent (or any such sub-agent), such Issuing Lender or such Swingline Lender
or such Related Party, as the case may be, such Lenderβs Applicable Percentage (determined as of
the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid
amount, provided that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted against the
Administrative Agent (or any such sub-agent), such Issuing Lender or such Swingline Lender in its
capacity as such, or against any Related Party of any of the foregoing acting for the
Administrative Agent (or any such sub-agent), such Issuing Lender or such Swingline Lender in
connection with such capacity.
Β Β Β Β Β Β Β Β Β Β (d) Waiver of Consequential Damages, Etc. To the fullest extent permitted by
applicable law, the Borrower shall not assert, and hereby waives, any claim against any Indemnitee,
on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to
direct or actual damages) arising out of, in connection with, or as a result of, this Agreement,
any other Loan Document or any agreement or instrument contemplated hereby or thereby, the
transactions contemplated hereby or thereby, any Loan or Letter of Credit or the use of the
proceeds thereof. No Indemnitee referred to in paragraph (b) above shall be liable for any
damages arising from the use by unintended
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recipients of any information or other materials
distributed by it through telecommunications, electronic or other information transmission systems
in connection with this Agreement or the other Loan Documents or the transactions contemplated
hereby or thereby.
Β Β Β Β Β Β Β Β Β Β (e) Payments. All amounts due under this Section shall be payable promptly after
demand therefor.
Β Β Β Β Β Β Β Β Β Β SECTION 9.04 Successors and Assigns.
Β Β Β Β Β Β Β Β Β Β (a) Successors and Assigns Generally. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective successors and
assigns permitted hereby, except that the Borrower may not assign or otherwise transfer any of its
rights or obligations hereunder without the prior written consent of the Administrative Agent and
each Lender, and no Lender may assign or otherwise transfer any of its rights or obligations
hereunder except (i)Β to an assignee in accordance with the provisions of paragraph (b) of
this Section, (ii)Β by way of participation in accordance with the provisions of paragraph
(d) of this Section or (iii)Β by way of pledge or assignment of a security interest subject to
the restrictions of paragraph (f) of this Section (and any other attempted assignment or
transfer by any party hereto shall be null and void). Nothing in this Agreement, expressed or
implied, shall be construed to confer upon any Person (other than the parties hereto, their
respective successors and assigns permitted hereby, each Issuing Lender, each Swingline Lender,
Participants, to the extent provided in paragraph (d) of this Section and, to the extent
expressly contemplated hereby, the Related Parties of each of the Administrative Agent, each
Issuing Lender, each Swingline Lender and the Lenders) any legal or equitable right, remedy or
claim under or by reason of this Agreement.
Β Β Β Β Β Β Β Β Β Β (b) Assignments by Lenders. Any Lender may at any time assign to one or more
assignees all or a portion of its rights and obligations under this Agreement (including all or a
portion of its Commitments and the Loans at the time owing to it) to any Person; provided
that any such assignment shall be subject to the following conditions:
Β Β Β Β Β (i) Minimum Amounts.
Β Β Β Β Β (A) In the case of an assignment of the entire remaining amount of the
assigning Lenderβs Commitments and the Loans at the time owing to it or in the case
of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no
minimum amount need be assigned; and
Β Β Β Β Β (B) in any case not described in paragraph (b)(i)(A) of this Section,
the aggregate amount of the Commitment (which for this purpose includes Loans
outstanding thereunder) or, if the applicable Commitment is not then in effect, the
principal outstanding balance of the Loans of the assigning Lender subject to each
such assignment (determined as of the date the Assignment and Assumption with
respect to such assignment is delivered to the Administrative Agent or, if βTrade
Dateβ is specified in the Assignment and Assumption, as of the Trade Date) shall not
be less than $5,000,000, in the case of any assignment in respect of a Revolving
Credit Commitment, or $1,000,000, in the case of any assignment in respect of a Term
Loan Commitment or an Incremental
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Loan Commitment, unless each of the Administrative
Agent and, so long as no Event of Default has occurred and is continuing, the
Borrower otherwise consents (each such consent not to be unreasonably withheld or
delayed).
Β Β Β Β Β (ii) Proportionate Amounts. Each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Lenderβs rights and obligations
under this Agreement with respect to the Loan or the Commitment assigned, except that this
clause (ii) shall not prohibit any Lender from assigning all or a portion of its
rights and obligations in respect of different Classes of Commitments on a non-pro rata
basis.
Β Β Β Β Β (iii) Required Consents. No consent shall be required for any assignment to a
Lender, an Affiliate of a Lender or an Approved Fund except to the extent required by
paragraph (b)(i)(B) of this Section and, in addition:
Β Β Β Β Β (A) the consent of the Borrower (such consent not to be unreasonably withheld
or delayed) shall be required unless (x)Β an Event of Default has occurred and is
continuing at the time of such assignment or (y)Β such assignment is to a Lender, an
Affiliate of a Lender or an Approved Fund; provided that the Borrower shall
be deemed to have given its consent ten days after the date notice thereof has been
delivered by the Administrative Agent unless such consent is expressly refused by
the Borrower prior to such tenth day;
Β Β Β Β Β (B) the consent of the Administrative Agent (such consent not to be
unreasonably withheld or delayed) shall be required for assignments in respect of
(x)Β a Revolving Credit Commitment, a Term Loan Commitment or an Incremental Loan
Commitment no part of which has been utilized if such assignment is to a Person that
is not a Lender with a Commitment of such Class, an Affiliate of such Lender or an
Approved Fund with respect to such Lender or (y)Β a Term Loan Commitment or an
Incremental Loan Commitment which has been utilized to a Person who is not a Lender,
an Affiliate of a Lender or an Approved Fund;
Β Β Β Β Β (C) the consent(s) of the relevant Issuing Lender(s) shall be required for any
assignment that increases the obligation of the assignee to participate in exposure
under one or more Letters of Credit (whether or not then outstanding); and
Β Β Β Β Β (D) the consent of each Swingline Lender and each Issuing Lender shall be
required for any assignment in respect of the Revolving Credit Commitments.
Β Β Β Β Β (iv) Assignment and Assumption. The parties to each assignment shall execute
and deliver to the Administrative Agent an Assignment and Assumption, together with a
processing and recordation fee of $3,500, and the assignee, if it is not a Lender, shall
deliver to the Administrative Agent an Administrative Questionnaire.
Β Β Β Β Β (v) No Assignment to the Borrower. No such assignment shall be made to the
Borrower or any of the Borrowerβs Affiliates or Subsidiaries.
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Β Β Β Β Β (vi) No Assignment to Natural Persons. No such assignment shall be made to a
natural person.
Subject to acceptance and recording thereof by the Administrative Agent pursuant to paragraph
(c) of this Section, from and after the effective date specified in each Assignment and
Assumption, the assignee thereunder shall be a party to this Agreement and, to the extent of the
interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender
under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Assumption, be released from its obligations under this Agreement
(and, in the case of an Assignment and Assumption covering all of the assigning Lenderβs rights and
obligations under this Agreement, such Lender shall cease to be a party hereto) but shall continue
to be (x)Β entitled to the benefits of SectionΒ 2.15, SectionΒ 2.16 and Section
9.03 and (y)Β obligated pursuant to SectionΒ 2.16(g), in each case with respect to facts and
circumstances occurring prior to the effective date of such assignment. Any assignment or transfer
by a Lender of rights or obligations under this Agreement that does not comply with this paragraph
shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such
rights and obligations in accordance with paragraph (d) of this Section.
Β Β Β Β Β Β Β Β Β Β (c) Register. The Administrative Agent, acting solely for this purpose as an agent of
the Borrower, shall maintain at one of its offices in New York a copy of each Assignment and
Assumption delivered to it and a register for the recordation of the names and addresses of the
Lenders, and the Commitments of, and principal amounts of the Loans owing to, each Lender pursuant
to the terms hereof from time to time (the βRegisterβ). The entries in the Register shall
be conclusive, and the Borrower, the Administrative Agent and the Lenders may treat each Person
whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all
purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by the Borrower at any reasonable time and from time to time upon
reasonable prior notice. Neither the Borrower nor the Administrative Agent shall be required to
make the Register available for inspection by any Lender or to provide to any Lender any
information (including without limitation as to identity or amount or percentage of credit exposure
hereunder) about any other Lender.
Β Β Β Β Β Β Β Β Β Β (d) Participations. Any Lender may at any time, without the consent of, or notice to,
the Borrower or the Administrative Agent, sell participations to any Person (other than a natural
person or the Borrower or any of the Borrowerβs Affiliates or Subsidiaries) in all or a portion
(provided that any such portion shall not be less than $5,000,000, in the case of any
participation in respect of a Revolving Credit Commitment, or $1,000,000, in the case of any
participation in respect of a Term Loan Commitment or an Incremental Loan Commitment) of such
Lenderβs rights and/or obligations under this Agreement (including all or a portion of its
Commitment and/or the Loans owing to it); provided that (i)Β such Lenderβs obligations under
this Agreement shall remain unchanged, (ii)Β such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations and (iii)Β the Borrower, the
Administrative Agent, the Lenders, the Issuing Lenders and Swingline Lender shall continue to deal
solely and directly with such Lender in connection with such Lenderβs rights and obligations under
this Agreement.
Β Β Β Β Β Β Β Β Β Β Any agreement or instrument pursuant to which a Lender sells such a participation shall
provide that such Lender shall retain the sole right to enforce this Agreement and to approve any
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amendment, modification or waiver of any provision of this Agreement; provided that such
agreement or instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, modification or waiver which would reduce the principal of or
the interest rate on any Loan or the obligation of the Borrower to reimburse any Borrowing, extend
the term or increase the amount of the Revolving Credit Commitment, Term Loan Commitment and/or
Incremental Loan Commitment of such Lender, reduce the amount of any fees to which such Participant
is entitled, extend any scheduled payment date for principal of any Loan or, except as expressly
contemplated hereby or thereby, release substantially all of the collateral granted granted in
favor of the Administrative Agent for the benefit of the Secured Parties, in any such case in a
manner that would affect such Participant. Subject to paragraph (e) of this Section, the
Borrower agrees that each Participant shall be entitled to the benefits of SectionΒ 2.15 to
the same extent as if it were a Lender and had acquired its interest by assignment pursuant to
paragraph (b) of this Section. To the extent permitted by law, each Participant also shall
be entitled to the benefits of SectionΒ 9.08 as though it were a Lender, provided
that such Participant agrees to be subject to Section 2.17(d) as though it were a Lender.
Β Β Β Β Β Β Β Β Β Β (e) Limitations upon Participant Rights. A Participant shall not be entitled to
receive any greater payment under SectionΒ 2.14 and SectionΒ 2.16 than the applicable
Lender would have been entitled to receive with respect to the participation sold to such
Participant, unless the sale of the participation to such Participant is made with the Borrowerβs
prior written consent. A Participant that would be a Foreign Lender if it were a Lender shall not
be entitled to the benefits of SectionΒ 2.16 unless the Borrower is notified of the
participation sold to such Participant and such Participant agrees, for the benefit of the
Borrower, to comply with paragraphs (e) and (g) of SectionΒ 2.16 as though
it were a Lender.
Β Β Β Β Β Β Β Β Β Β (f) Certain Pledges. Any Lender may at any time pledge or assign a security interest
in all or any portion of its rights under this Agreement to secure obligations of such Lender,
including any pledge or assignment to secure obligations to a Federal Reserve Bank;
provided that no such pledge or assignment shall release such Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
Β Β Β Β Β Β Β Β Β Β SECTION 9.05 Survival. All covenants, agreements, representations and warranties made by the Borrower herein and
in the certificates or other instruments delivered in connection with or pursuant to this Agreement
shall be considered to have been relied upon by the other parties hereto and shall survive the
execution and delivery of this Agreement and the making of any Loans and issuance, amendment,
renewal or extension of any Letters of Credit, regardless of any investigation made by any such
other party or on its behalf and notwithstanding that the Administrative Agent, any Issuing Lender
or any Lender may have had notice or knowledge of any Default or incorrect representation or
warranty at the time any credit is extended hereunder, and shall continue in full force and effect
as long as the principal of or any accrued interest on any Loan or any fee or any other amount
payable under this Agreement is outstanding and unpaid or any Letter of Credit is outstanding and
so long as the Commitments have not expired or been terminated. The provisions of Section
2.14, SectionΒ 2.15, SectionΒ 2.16 and SectionΒ 9.03 and Article
VIII shall survive and remain in full force and effect regardless of the consummation of the
transactions contemplated hereby, the repayment of the Loans, the expiration or termination of the
Letters of Credit and the Commitments or the termination of this Agreement or any provision hereof.
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Β Β Β Β Β Β Β Β Β Β SECTION 9.06 Counterparts; Integration; Effectiveness; Lender Addendum.
Β Β Β Β Β Β Β Β Β Β (a) Counterparts; Integration; Effectiveness. This Agreement may be executed in
counterparts (and by different parties hereto in different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute a single contract.
This Agreement and the other Loan Documents, and any separate letter agreements with respect to
fees payable to the Administrative Agent, constitute the entire contract between and among the
parties relating to the subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof. Except as provided in
SectionΒ 4.01, this Agreement shall become effective when it shall have been executed by the
Administrative Agent and when the Administrative Agent shall have received counterparts hereof
that, when taken together, bear the signatures of each of the other parties hereto. Delivery of an
executed counterpart of a signature page to this Agreement by telecopy or in Portable Document
Format shall be effective as delivery of a manually executed counterpart of this Agreement.
Β Β Β Β Β Β Β Β Β Β (b) Lender Addendum. Each initial Lender shall become a party to this Agreement by
delivering to the Administrative Agent a Lender Addendum duly executed by such Lender and the
Borrower and, by executing its Lender Addendum, each such Lender agrees to be bound by the
provisions hereof with the Commitment set forth opposite its name in such Lender Addendum.
Β Β Β Β Β Β Β Β Β Β SECTION 9.07 Severability. Any provision of this Agreement held to be invalid,
illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such invalidity, illegality or unenforceability without affecting the validity, legality
and enforceability of the remaining provisions hereof; and the invalidity of a particular provision
in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.
Β Β Β Β Β Β Β Β Β Β SECTION 9.08 Right of Setoff. If an Event of Default shall have occurred and be
continuing, each Lender, each Issuing Lender and each of their respective Affiliates is hereby
authorized at any time and from time to time, to the fullest extent permitted by applicable law, to
set off and apply any and all deposits (general or special, time or demand, provisional or final,
in whatever currency) at any time held and other obligations (in whatever currency) at any time
owing by such Lender, such Issuing Lender or any such Affiliate to or for the credit or the account
of the Borrower against any and all of the obligations of the Borrower now or hereafter existing
under this Agreement or any other Loan Document to such Lender or such Issuing Lender, irrespective
of whether or not such Lender or such Issuing Lender shall have made any demand under this
Agreement or any other Loan Document and although such obligations of the Borrower may be
contingent or unmatured or are owed to a branch or office of such Lender or such Issuing Lender
different from the branch or office holding such deposit or obligated on such indebtedness. The
rights of each Lender, each Issuing Lender and their respective Affiliates under this Section are
in addition to other rights and remedies (including other rights of setoff) that such Lender, such
Issuing Lender or their respective Affiliates may have. Each Lender and each Issuing Lender agrees
to notify the Borrower and the Administrative Agent promptly after any such setoff and application,
provided that the failure to give such notice shall not affect the validity of such setoff
and application.
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Β Β Β Β Β Β Β Β Β Β SECTION 9.09 Governing Law; Jurisdiction; Etc.
Β Β Β Β Β Β Β Β Β Β (a) Governing Law. This Agreement shall be governed by, and construed in accordance
with, the law of the State of New York.
Β Β Β Β Β Β Β Β Β Β (b) Submission to Jurisdiction. The Borrower irrevocably and unconditionally submits,
for itself and its property, to the nonexclusive jurisdiction of the Supreme Court of the State of
New York sitting in New York County and of the United States District Court for the Southern
District of New York, and any appellate court from any thereof, in any action or proceeding arising
out of or relating to this Agreement or any other Loan Document, or for recognition or enforcement
of any judgment, and each of the parties hereto irrevocably and unconditionally agrees that all
claims in respect of any such action or proceeding may be heard and determined in such New York
State court or, to the fullest extent permitted by applicable law, in such Federal court. Each of
the parties hereto agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law. Nothing in this Agreement or in any other Loan Document shall affect any
right that the Administrative Agent, any Issuing Lender or any Lender may otherwise have to bring
any action or proceeding relating to this Agreement or any other Loan Document against the Borrower
or its properties in the courts of any jurisdiction.
Β Β Β Β Β Β Β Β Β Β (c) Waiver of Venue. The Borrower irrevocably and unconditionally waives, to the
fullest extent permitted by applicable law, any objection that it may now or hereafter have to the
laying of venue of any action or proceeding arising out of or relating to this Agreement or any
other Loan Document in any court referred to in paragraph (b) of this Section. Each of the
parties hereto irrevocably
waives, to the fullest extent permitted by applicable law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
Β Β Β Β Β Β Β Β Β Β (d) Service of Process. Each party hereto irrevocably consents to service of process
in the manner provided for notices in SectionΒ 9.01. Nothing in this Agreement will affect
the right of any party hereto to serve process in any other manner permitted by applicable law.
Β Β Β Β Β Β Β Β Β Β SECTION 9.10 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY
LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER
LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT
OR ANY OTHER THEORY). EACH PARTY HERETO (A)Β CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF
ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)Β ACKNOWLEDGES THAT IT AND THE
OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
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Β Β Β Β Β Β Β Β Β Β SECTION 9.11 Headings. Article and Section headings and the Table of Contents used
herein are for convenience of reference only, are not part of this Agreement and shall not affect
the construction of, or be taken into consideration in interpreting, this Agreement.
Β Β Β Β Β Β Β Β Β Β SECTION 9.12 Treatment of Certain Information; Confidentiality.
Β Β Β Β Β Β Β Β Β Β (a) Treatment of Certain Information. The Borrower acknowledges that from time to
time financial advisory, investment banking and other services may be offered or provided to the
Borrower or one or more of its Subsidiaries (in connection with this Agreement or otherwise) by any
Lender or by one or more subsidiaries or affiliates of such Lender and the Borrower hereby
authorizes each Lender to share any information delivered to such Lender by the Borrower and its
Subsidiaries pursuant to this Agreement, or in connection with the decision of such Lender to enter
into this Agreement, to any such subsidiary or affiliate, it being understood that any such
subsidiary or affiliate receiving such information shall be bound by the provisions of
paragraph (b) of this Section as if it were a Lender hereunder. Such authorization shall
survive the repayment of the Loans, the expiration or termination of the Letters of Credit and the
Commitments or the termination of this Agreement or any provision hereof.
Β Β Β Β Β Β Β Β Β Β (b) Confidentiality. Each of the Administrative Agent, the Issuing Lenders and the
Lenders agrees to maintain the confidentiality of the Information (as defined below), except that
Information may be disclosed (i)Β to its Affiliates and to its and its Affiliatesβ respective
partners, directors, officers, employees, agents, advisors and other representatives (it being
understood that the Persons to whom such disclosure is made will be informed of the confidential
nature of such Information and instructed to keep such Information confidential), (ii)Β to the
extent requested by any regulatory authority purporting to have jurisdiction over it (including any
self-regulatory authority, such as the National Association of Insurance Commissioners), (iii)Β to
the extent required by applicable laws or regulations or by any subpoena or similar legal process,
(iv)Β to any other party hereto, (v)Β in connection with the exercise of any remedies hereunder or
under any other Loan Document or any action or proceeding relating to this Agreement or any other
Loan Document or the enforcement of rights hereunder or thereunder, (vi)Β subject to an agreement
containing provisions substantially the same as those of this Section, to (A)Β any assignee of or
Participant in, or any prospective assignee of or Participant in, any of its rights or obligations
under this Agreement or (B)Β any actual or prospective counterparty (or its advisors) to any swap or
derivative transaction relating to the Borrower and its obligations, (vii)Β with the consent of the
Borrower or (viii)Β to the extent such Information (A)Β becomes publicly available other than as a
result of a breach of this Section or (B)Β becomes available to the Administrative Agent, any
Issuing Lender or any Lender or any of their respective Affiliates on a nonconfidential basis from
a source other than the Borrower.
Β Β Β Β Β Β Β Β Β Β For purposes of this Section, βInformationβ means all information received from the
Borrower or any of its Subsidiaries relating to the Borrower or any of its Subsidiaries or any of
their respective businesses, other than any such information that is available to the
Administrative Agent, any Issuing Lender or any Lender on a nonconfidential basis prior to
disclosure by the Borrower or any of its Subsidiaries; provided that, in the case of
information received from the Borrower or any of its Subsidiaries after the date hereof, such
information is clearly identified at the time of delivery as confidential. Any Person required to
maintain the confidentiality of Information as provided in this
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Section shall be considered to have
complied with its obligation to do so if such Person has exercised the same degree of care to
maintain the confidentiality of such Information as such Person would accord to its own
confidential information.
Β Β Β Β Β Β Β Β Β Β SECTION 9.13 USA PATRIOT Act. Each Lender hereby notifies the Borrower that pursuant
to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October
26, 2001)), such Lender may be required to obtain, verify and record information that identifies
the Borrower, which information includes the name and address of the Borrower and other information
that will allow such Lender to identify the Borrower in accordance with said Act.
Β Β Β Β Β Β Β Β Β Β SECTION 9.14 Interest Rate Limitation. Notwithstanding anything herein to the
contrary, if at any time the interest rate applicable to any Loan, together with all fees, charges
and other amounts which are treated as interest on such Loan under applicable law (collectively the
βChargesβ), shall exceed the maximum lawful rate (the βMaximum Rateβ) which may be
contracted for, charged, taken, received or reserved by the Lender
holding such Loan in accordance with applicable law, the rate of interest payable in respect
of such Loan hereunder, together with all Charges payable in respect thereof, shall be limited to
the Maximum Rate and, to the extent lawful, the interest and Charges that would have been payable
in respect of such Loan but were not payable as a result of the operation of this Section shall be
cumulated and the interest and Charges payable to such Lender in respect of other Loans or periods
shall be increased (but not above the Maximum Rate therefor) until such cumulated amount, together
with interest thereon at the Federal Funds Effective Rate for each day to the date of repayment,
shall have been received by such Lender.
Β Β Β Β Β Β Β Β Β Β SECTION 9.15. Judgment Currency. This is an international loan transaction in which
the specification of Dollars or any Foreign Currency, as the case may be (the βSpecified
Currencyβ), and payment in New York City or the country of the Specified Currency, as the case
may be (the βSpecified Placeβ), is of the essence, and the Specified Currency shall be the
currency of account in all events relating to Loans denominated in the Specified Currency. The
payment obligations of the Borrower under this Agreement shall not be discharged or satisfied by an
amount paid in another currency or in another place, whether pursuant to a judgment or otherwise,
to the extent that the amount so paid on conversion to the Specified Currency and transfer to the
Specified Place under normal banking procedures does not yield the amount of the Specified Currency
at the Specified Place due hereunder. If for the purpose of obtaining judgment in any court it is
necessary to convert a sum due hereunder in the Specified Currency into another currency (the
βSecond Currencyβ), the rate of exchange that shall be applied shall be the rate at which
in accordance with normal banking procedures the Administrative Agent could purchase the Specified
Currency with the Second Currency on the Business Day next preceding the day on which such judgment
is rendered. The obligation of the Borrower in respect of any such sum due from it to the
Administrative Agent or any Lender hereunder or under any other Loan Document (in this Section
called an βEntitled Personβ) shall, notwithstanding the rate of exchange actually applied
in rendering such judgment, be discharged only to the extent that on the Business Day following
receipt by such Entitled Person of any sum adjudged to be due hereunder in the Second Currency such
Entitled Person may in accordance with normal banking procedures purchase and transfer to the
Specified Place the Specified Currency with the amount of the Second Currency so adjudged to be
due; and the Borrower hereby, as a separate obligation and notwithstanding any such judgment,
agrees to indemnify such Entitled Person against, and to pay such Entitled Person on demand, in the
Specified Currency, the amount (if any) by
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which the sum originally due to such Entitled Person in
the Specified Currency hereunder exceeds the amount of the Specified Currency so purchased and
transferred.
[Signature Pages to Follow]
Credit Agreement
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Β Β Β Β Β IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by
their respective authorized officers as of the day and year first above written.
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THE GEO GROUP, INC.
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By:Β Β |
/s/
Xxxxxx XxxxxΒ |
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Name:Β Β |
Xxxxxx XxxxxΒ |
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Title:Β Β |
CEO and ChairmanΒ |
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Credit Agreement
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BNP PARIBAS,
individually, as Swingline Lender and as
Administrative Agent
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By Β Β |
/s/
Xxxxxxx XxxxxxxxΒ |
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Name:Β Β |
Xxxxxxx XxxxxxxxΒ |
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Title:Β Β |
Vice PresidentΒ |
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By Β Β |
/s/
Xxxxx XxxxxxxxxΒ |
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Name:Β Β |
Xxxxx XxxxxxxxxΒ |
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Title:Β Β |
Vice PresidentΒ |
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Credit Agreement
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EXHIBIT A
to
Credit Agreement
dated as of AugustΒ 4, 2010
by and among
The GEO Group, Inc.,
as Borrower,
the lenders party thereto,
as Lenders,
and
BNP Paribas,
as Administrative Agent
FORM OF ASSIGNMENT AND ASSUMPTION
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ASSIGNMENT AND ASSUMPTION
Β Β Β Β Β Β Β Β Β Β This Assignment and Assumption (the βAssignment and Assumptionβ) is dated as of the
Effective Date set forth below and is entered into by and between [Insert name of Assignor] (the
βAssignorβ) and [Insert name of Assignee] (the βAssigneeβ). Capitalized terms used
but not defined herein shall have the meanings given to them in the Credit Agreement identified
below (as amended, restated, supplemented or otherwise modified, the βCredit Agreementβ),
receipt of a copy of which is hereby acknowledged by the Assignee. The Standard Terms and
Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by
reference and made a part of this Assignment and Assumption as if set forth herein in full.
Β Β Β Β Β Β Β Β Β Β For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the
Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to
and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the
Effective Date inserted by the Administrative Agent as contemplated below (i)Β all of the Assignorβs
rights and obligations in its capacity as a Lender under the Credit Agreement and any other
documents or instruments delivered pursuant thereto to the extent related to the amount and
percentage interest identified below of all of such outstanding rights and obligations of the
Assignor under the respective facilities identified below (including any letters of credit,
guarantees, and swingline loans included in such facilities) and (ii)Β to the extent permitted to be
assigned under applicable law, all claims, suits, causes of action and any other right of the
Assignor (in its capacity as a Lender) against any Person, whether known or unknown, arising under
or in connection with the Credit Agreement, any other documents or instruments delivered pursuant
thereto or the loan transactions governed thereby or in any way based on or related to any of the
foregoing, including contract claims, tort claims, malpractice claims, statutory claims and all
other claims at law or in equity related to the rights and obligations sold and assigned pursuant
to clause (i)Β above (the rights and obligations sold and assigned pursuant to clauses (i)Β and (ii)
above being referred to herein collectively as the βAssigned Interestβ). Such sale and
assignment is without recourse to the Assignor and, except as expressly provided in this Assignment
and Assumption, without representation or warranty by the Assignor.
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1.
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Assignor: |
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2.
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Assignee: |
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[and is an Affiliate/Approved Fund of [identify Lender]] |
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3.
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Borrower:
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The GEO Group, Inc. |
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4.
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Administrative Agent:
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BNP Paribas, as the administrative agent under the Credit Agreement. |
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5.
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Credit Agreement:
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The Credit Agreement dated as of AugustΒ 4, 2010 among The GEO Group, Inc.,
the Lenders referred to therein and BNP Paribas, as Administrative Agent. |
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6. Assigned Interest:
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Aggregate Amount of |
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Amount of |
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Commitment/Loans |
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Commitment/Loans |
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Percentage Assigned of |
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Commitment Assigned1 |
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for all Lenders |
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Assigned |
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Commitment/Loans |
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% |
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% |
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$ |
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% |
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7. Wiring Instructions:
[____________]
ABA [____________]
Acct: [____________]
Acct Name: [____________]
Ref: [____________]
Attn: [____________] ([___]) [__________]
Effective Date: _______________, 20___ [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL
BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]
[Signature Page Follows]
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1 |
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Fill in the appropriate terminology for the
types of facilities under the Credit Agreement that are being assigned under
this Assignment and Assumption (e.g. βRevolving Commitment,β βTranche A Term
Loan Commitment,β βTranche B Term Loan Commitment,β etc.) |
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The terms set forth in this Assignment and Assumption are hereby agreed to:
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ASSIGNOR
[NAME OF ASSIGNOR]
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By:Β Β |
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Title:Β |
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ASSIGNEE
[NAME OF ASSIGNEE]
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By:Β Β |
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Title:Β |
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Consented to and Accepted:
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BNP PARIBAS, as
Β Β Β Administrative Agent
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ByΒ Β |
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Title:Β |
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ByΒ Β |
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Title:Β |
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[Consented to:]
THE GEO GROUP, INC.
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ByΒ Β |
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Title:Β |
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[NAME OF RELEVANT PARTY]2
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ByΒ Β |
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Title:Β |
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To be added if the consent of other parties
(e.g. Issuing Banks, Swingline Lenders) is required under SectionΒ 9.04 of the
Credit Agreement. |
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Annex 1
Standard Terms and Conditions
Β Β Β Β Β Β Β Β Β Β 1. Representations and Warranties.
Β Β Β Β Β Β Β Β Β Β 1.1 Assignor. The Assignor (a)Β represents and warrants that (i)Β it is the legal and
beneficial owner of the Assigned Interest, (ii)Β the Assigned Interest is free and clear of any
lien, encumbrance or other adverse claim and (iii)Β it has full power and authority, and has taken
all action necessary, to execute and deliver this Assignment and Assumption and to consummate the
transactions contemplated hereby; and (b)Β assumes no responsibility with respect to (i)Β any
statements, warranties or representations made in or in connection with the Credit Agreement or any
other Loan Document, (ii)Β the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Loan Documents or any collateral thereunder, (iii)Β the financial
condition of the Borrower, any of its Subsidiaries or Affiliates or any other Person obligated in
respect of any Loan Document or (iv)Β the performance or observance by the Borrower, any of its
Subsidiaries or Affiliates or any other Person of any of their respective obligations under any
Loan Document.
Β Β Β Β Β Β Β Β Β Β 1.2. Assignee. The Assignee (a)Β represents and warrants that (i)Β it has full power
and authority, and has taken all action necessary, to execute and deliver this Assignment and
Assumption and to consummate the transactions contemplated hereby and to become a Lender under the
Credit Agreement, (ii)Β it satisfies the requirements, if any, specified in the Credit Agreement
that are required to be satisfied by it in order to acquire the Assigned Interest and become a
Lender, (iii)Β from and after the Effective Date, it shall be bound by the provisions of the Credit
Agreement as a Lender thereunder and, to the extent of the Assigned Interest, shall have the
obligations of a Lender thereunder, (iv)Β it has received a copy of the Credit Agreement, together
with copies of the most recent financial statements delivered pursuant to SectionΒ 5.01 thereof, as
applicable, and such other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into this Assignment and Assumption and to purchase the
Assigned Interest on the basis of which it has made such analysis and decision independently and
without reliance on the Administrative Agent or any other Lender, and (v)Β if it is a Foreign
Lender, attached to this Assignment and Assumption is any documentation required to be delivered by
it pursuant to the terms of the Credit Agreement, duly completed and executed by the Assignee; and
(b)Β agrees that (i)Β it will, independently and without reliance on the Administrative Agent, the
Assignor 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 Loan Documents, and (ii)Β it will perform in accordance with their terms all of the
obligations which by the terms of the Loan Documents are required to be performed by it as a
Lender.
Β Β Β Β Β Β Β Β Β Β 2. Payments. From and after the Effective Date, the Administrative Agent shall
make all payments in respect of the Assigned Interest (including payments of principal, interest,
fees and other amounts) to the Assignor for amounts which have accrued to but excluding the
Effective Date and to the Assignee for amounts which have accrued from and after the Effective
Date.
Β Β Β Β Β Β Β Β Β Β 3. General Provisions. This Assignment and Assumption shall be binding upon, and
inure to the benefit of, the parties hereto and their respective successors and assigns. This
Assignment and Assumption may be executed in any number of counterparts, which together shall
constitute one instrument. Delivery of an executed counterpart of a signature page of this
Assignment and Assumption
by telecopy shall be effective as delivery of a manually executed counterpart of this Assignment
and Assumption. This Assignment and Assumption shall be governed by, and construed in accordance
with, the law of the State of New York.
Β
Β
EXHIBIT B
to
Credit Agreement
dated as of AugustΒ 4, 2010
by and among
The GEO Group, Inc.,
as Borrower,
the lenders party thereto,
as Lenders,
and
BNP Paribas,
as Administrative Agent
FORM OF COLLATERAL AGREEMENT
Β
Β
EXECUTION COPY
COLLATERAL AGREEMENT
dated as of AugustΒ 4, 2010
by and among
THE GEO GROUP, INC.,
and certain of its Subsidiaries,
as Grantors,
in favor of
BNP PARIBAS,
as Administrative Agent
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TABLE OF CONTENTS
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ARTICLE I DEFINED TERMS |
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1 |
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SectionΒ 1.1.
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Terms Defined in the Uniform Commercial Code
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1 |
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SectionΒ 1.2.
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Definitions
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2 |
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SectionΒ 1.3.
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Other Definitional Provisions
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5 |
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ARTICLE II SECURITY INTEREST |
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5 |
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SectionΒ 2.1.
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Grant of Security Interest
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5 |
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SectionΒ 2.2.
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Grantors Remain Liable
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6 |
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ARTICLE III REPRESENTATIONS AND WARRANTIES |
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6 |
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SectionΒ 3.1.
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Existence
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6 |
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SectionΒ 3.2.
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Authorization of Agreement; No Conflict
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6 |
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SectionΒ 3.3.
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Consents
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7 |
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SectionΒ 3.4.
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Perfected First Priority Liens
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SectionΒ 3.5.
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Title, No Other Liens
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SectionΒ 3.6.
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State of Organization; Location of Inventory, Equipment and Fixtures;
other Information
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SectionΒ 3.7.
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Accounts and Material Government Contracts
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SectionΒ 3.8.
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Chattel Paper
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8 |
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SectionΒ 3.9.
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Deposit Accounts
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8 |
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SectionΒ 3.10.
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Intellectual Property
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8 |
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SectionΒ 3.11.
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Inventory
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8 |
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SectionΒ 3.12.
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Investment Property; Partnership/LLC Interests
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9 |
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ARTICLE IV COVENANTS |
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9 |
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SectionΒ 4.1.
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Maintenance of Perfected Security Interest; Further Information
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9 |
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SectionΒ 4.2.
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Maintenance of Insurance
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SectionΒ 4.3.
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Changes in Locations; Changes in Name or Structure
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SectionΒ 4.4.
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Required Notifications
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SectionΒ 4.5.
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Delivery Covenants
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SectionΒ 4.6.
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Control Covenants
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11 |
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SectionΒ 4.7.
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Filing Covenants
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12 |
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SectionΒ 4.8.
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Accounts
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13 |
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SectionΒ 4.9.
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Intellectual Property
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SectionΒ 4.10.
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Investment Property; Partnership/LLC Interests
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SectionΒ 4.11.
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Equipment
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SectionΒ 4.12.
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Vehicles
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SectionΒ 4.13.
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Further Assurances
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ARTICLE V REMEDIAL PROVISIONS |
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15 |
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SectionΒ 5.1.
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General Remedies
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15 |
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SectionΒ 5.2.
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Specific Remedies
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16 |
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SectionΒ 5.3.
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Registration Rights
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18 |
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SectionΒ 5.4.
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Application of Proceeds
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SectionΒ 5.5.
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Waiver, Deficiency
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19 |
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ARTICLE VI THE ADMINISTRATIVE AGENT |
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19 |
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SectionΒ 6.1.
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Administrative Agentβs Appointment as Attorney-In-Fact
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19 |
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SectionΒ 6.2.
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Duty of Administrative Agent
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21 |
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SectionΒ 6.3.
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Authority of Administrative Agent
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21 |
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Page |
ARTICLE VII MISCELLANEOUS |
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21 |
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SectionΒ 7.1.
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Amendments and Waivers
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21 |
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SectionΒ 7.2.
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Notices
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21 |
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SectionΒ 7.3.
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No Waiver by Course of Conduct, Cumulative Remedies
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21 |
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SectionΒ 7.4.
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Enforcement Expenses, Indemnification
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22 |
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SectionΒ 7.5.
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Waiver of Jury Trial
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22 |
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SectionΒ 7.6.
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Successors and Assigns
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22 |
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SectionΒ 7.7.
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Set-Off
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23 |
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SectionΒ 7.8.
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Counterparts
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23 |
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SectionΒ 7.9.
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Severability
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23 |
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SectionΒ 7.10.
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SectionΒ Heading
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23 |
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SectionΒ 7.11.
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Integration
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23 |
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SectionΒ 7.12.
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Governing Law
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23 |
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SectionΒ 7.13.
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Consent to Jurisdiction and Venue
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24 |
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SectionΒ 7.14.
|
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Acknowledgements
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24 |
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SectionΒ 7.15.
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Additional Grantors
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24 |
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SectionΒ 7.16.
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Releases
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25 |
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2
Β
EXECUTION COPY
Β Β Β Β Β Β Β Β Β Β COLLATERAL AGREEMENT (as amended, restated, supplemented or otherwise modified from time to
time, this βAgreementβ), dated as of AugustΒ 4, 2010, by and between THE GEO GROUP, INC, a
Florida corporation (the βBorrowerβ), certain of its Subsidiaries as identified on the
signature pages hereto as grantors hereunder and any Additional Grantors (as defined below) who may
become party to this Agreement (such Subsidiaries and Additional Grantors, collectively, with the
Borrower, the βGrantorsβ) and certain of its Subsidiaries as identified on the signature
pages hereto as Issuers (as defined below) and any additional Issuers who may become party to this
Agreement, in favor of BNP PARIBAS, as administrative agent (in such capacity, the
βAdministrative Agentβ), for the ratable benefit of the Secured Parties.
STATEMENT OF PURPOSE
Β Β Β Β Β Β Β Β Β Β Pursuant to the Credit Agreement, of even date herewith (as amended, restated, supplemented or
otherwise modified from time to time, the βCredit Agreementβ), by and among the Borrower,
the banks and other financial institutions (the βLendersβ) from time to time parties
thereto and the Administrative Agent, the Lenders have agreed to make extensions of credit to the
Borrower upon the terms and subject to the conditions set forth therein. In addition, the Borrower
and the Restricted Subsidiaries may from time to time be obligated to the Hedge Counterparties in
respect of one or more Hedging Agreements (such Hedging Agreements being referred to herein as
βSecured Hedging Agreementsβ).
Β Β Β Β Β Β Β Β Β Β Pursuant to the terms of a Guaranty Agreement of even date, certain Subsidiaries of the
Borrower who are party hereto have guaranteed payment and performance of the Obligations of the
Borrower.
Β Β Β Β Β Β Β Β Β Β It is a condition precedent to the obligation of the Lenders to make their respective
extensions of credit to the Borrower under the Credit Agreement that the Grantors shall have
executed and delivered this Agreement to the Administrative Agent, for the ratable benefit of
itself and the other Secured Parties.
Β Β Β Β Β Β Β Β Β Β For good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by the parties hereto, and to induce the Administrative Agent and the Lenders to enter
into the Credit Agreement, to induce the Lenders to make their respective extensions of credit to
the Borrower thereunder and to induce the Hedge Counterparties to enter into the Secured Hedging
Agreements, each Grantor has agreed to grant a security interest in the Collateral as security for
the Obligations.
Β Β Β Β Β Β Β Β Β Β Accordingly, the parties hereto agree as follows:
ARTICLE I
DEFINED TERMS
Β Β Β Β Β SectionΒ 1.1. Terms Defined in the Uniform Commercial Code
Β Β Β Β Β (a)Β The following terms when used in this Agreement shall have the meanings assigned to them
in the UCC (as defined in SectionΒ 1.2 below) as in effect from time to time: βAccountβ,
βAccount Debtorβ, βAuthenticateβ, βCertificated Securityβ, βChattel
Paperβ; βCommercial Tort Claimβ, βDeposit Accountβ, βDocumentsβ,
βElectronic Chattel Paperβ, βEntitlement Holderβ, βEquipmentβ,
βFinancial Assetβ, βFixtureβ, βGeneral Intangibleβ, βInstrumentβ,
βInventoryβ, βInvestment Propertyβ, βIssuerβ, βLetter-of-Credit
Rightβ, βProceedsβ, βRecordβ, βSecurities Entitlementβ, βSecurities
Intermediaryβ, βSecurities Accountβ, βSupporting Obligationβ, βTangible
Chattel Paperβ, and βUncertificated Securityβ.
3
Β
Β Β Β Β Β (b)Β Terms defined in the UCC and not otherwise defined herein or in the Credit Agreement shall
have the meaning assigned in the UCC as in effect from time to time.
Β Β Β Β Β SectionΒ 1.2. Definitions. The following terms when used in this Agreement shall have the meanings assigned to them
below:
Β Β Β Β Β Β Β Β Β Β βAdditional Grantorβ means each Subsidiary of the Borrower which hereafter becomes a
Grantor pursuant to SectionΒ 7.15 hereof and SectionΒ 5.09 of the Credit Agreement.
Β Β Β Β Β Β Β Β Β Β βApplicable Insolvency Lawsβ means all Applicable Laws governing bankruptcy,
reorganization, arrangement, adjustment of debts, relief of debtors, dissolution, insolvency,
fraudulent transfers or conveyances or other similar laws (including, without limitation, 11 U.S.C.
SectionsΒ 547, 548 and 550 and other βavoidanceβ provisions of Title 11 of the United States Code).
Β Β Β Β Β Β Β Β Β Β βApplicable Lawsβ means all applicable provisions of constitutions, laws, statutes,
ordinances, rules, treaties, regulations, permits, licenses, approvals, interpretations and orders
of courts or Governmental Authorities and all orders and decrees of all courts and arbitrators.
Β Β Β Β Β Β Β Β Β Β βAssignment Agreementβ means each Assignment Agreement executed by any Grantor with
respect to any Material Government Contract to which such Grantor is a party, substantially in the
form of ExhibitΒ A-1 attached hereto.
Β Β Β Β Β Β Β Β Β Β βAssignment of Claims Actβ means the Assignment of Claims Act of 1940 (41 U.S.C.
SectionΒ 15, 31 U.S.C. SectionΒ 3737, and 31 U.S.C. SectionΒ 3727), including all amendments thereto
and regulations promulgated thereunder.
Β Β Β Β Β Β Β Β Β Β βCollateralβ shall have the meaning assigned thereto in SectionΒ 2.1.
Β Β Β Β Β Β Β Β Β Β βCollateral Accountβ shall have the meaning assigned thereto in SectionΒ 4.6(e).
Β Β Β Β Β Β Β Β Β Β βCollection Accountβ means the account of the Borrower to which the payments and
proceeds of all Material Government Contracts entered into by any Grantor after the date hereof
will be credited.
Β Β Β Β Β Β Β Β Β Β βControlβ means the manner in which βcontrolβ is achieved under the UCC with respect
to any Collateral for which the UCC specifies a method of achieving βcontrolβ.
Β Β Β Β Β Β Β Β Β Β βControlled Depositoryβ shall have the meaning assigned thereto in SectionΒ 4.6(a).
Β Β Β Β Β Β Β Β Β Β βControlled Intermediaryβ has the meaning assigned thereto in SectionΒ 4.6(a).
Β Β Β Β Β Β Β Β Β Β βCopyrightsβ means collectively, all of the following of any Grantor: (a)Β all
copyrights, rights and interests in copyrights, works protectable by copyright, copyright
registrations and copyright applications anywhere in the world, including, without limitation,
those listed on ScheduleΒ 3.10 hereto, (b)Β all reissues, extensions, continuations (in whole or in
part) and renewals of any of the foregoing, (c)
all income, royalties, damages and payments now or hereafter due and/or payable under any of
the foregoing or with respect to any of the foregoing, including, without limitation, damages or
payments for past or future infringements of any of the foregoing, (d)Β the right to xxx for past,
present and future infringements of any of the foregoing and (e)Β all rights corresponding to any of
the foregoing throughout the world.
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Β Β Β Β Β Β Β Β Β Β βCopyright Licensesβ means any written agreement naming any Grantor as licensor or
licensee, including, without limitation, those listed in ScheduleΒ 3.10, granting any right under
any Copyright, including, without limitation, the grant of rights to manufacture, distribute,
exploit and sell materials derived from any Copyright.
Β Β Β Β Β Β Β Β Β Β βEffective Endorsement and Assignmentβ means, with respect to any specific type of
Collateral, all such endorsements, assignments and other instruments of transfer reasonably
requested by the Administrative Agent with respect to the Security Interest granted in such
Collateral, and in each case, in form and substance satisfactory to the Administrative Agent.
Β Β Β Β Β Β Β Β Β Β βExcess Collateralβ has the meaning assigned thereto in SectionΒ 4.6(d).
Β Β Β Β Β Β Β Β Β Β βGrantorsβ has the meaning set forth in the Preamble of this Agreement.
Β Β Β Β Β Β Β Β Β Β βGuarantorsβ means the collective reference to each Person executing a Guaranty
Agreement.
Β Β Β Β Β Β Β Β Β Β βIntellectual Propertyβ means collectively, all of the following of any Grantor: (a)
all systems software, applications software and internet rights, including, without limitation,
screen displays and formats, internet domain names, web sites (including web links), program
structures, sequence and organization, all documentation for such software, including, without
limitation, user manuals, flowcharts, programmerβs notes, functional specifications, and operations
manuals, all formulas, processes, ideas and know-how embodied in any of the foregoing, and all
program materials, flowcharts, notes and outlines created in connection with any of the foregoing,
whether or not patentable or copyrightable, (b)Β concepts, discoveries, improvements and ideas, (c)
any useful information relating to the items described in clause (a)Β or (b), including know-how,
technology, engineering drawings, reports, design information, trade secrets, practices, laboratory
notebooks, specifications, test procedures, maintenance manuals, research, development,
manufacturing, marketing, merchandising, selling, purchasing and accounting, (d)Β Patents and Patent
Licenses, Copyrights and Copyright Licenses, Trademarks and Trademark Licenses, and (e)Β other
licenses to use any of the items described in the foregoing clauses (a), (b), (c)Β and (d)Β or any
other similar items of such Grantor necessary for the conduct of its business.
Β Β Β Β Β Β Β Β Β Β βNotice of Assignmentβ means each Notice of Assignment executed by any Grantor with
respect to any Material Government Contract to which such Grantor is a party, substantially in the
form of ExhibitΒ A-2.
Β Β Β Β Β Β Β Β Β Β βObligationsβ means with respect to the Borrower, the meaning assigned thereto in the
Credit Agreement and with respect to each Guarantor, the obligations of such Guarantor under the
Guaranty Agreement executed by such Guarantor.
Β Β Β Β Β Β Β Β Β Β βPartnership/LLC Interestsβ means, with respect to any Grantor, the entire
partnership, membership interest or limited liability company interest, as applicable, of such
Grantor in each partnership, limited partnership or limited liability company owned thereby,
including, without limitation, such Grantorβs capital account, its interest as a partner or member,
as applicable, in the net cash flow, net
profit and net loss, and items of income, gain, loss, deduction and credit of any such
partnership, limited partnership or limited liability company, as applicable, such Grantorβs
interest in all distributions made or to be made by any such partnership, limited partnership or
limited liability company, as applicable, to such Grantor and all of the other economic rights,
titles and interests of such Grantor as a partner or member, as applicable, of any such
partnership, limited partnership or limited liability company, as applicable, whether set forth in
the partnership agreement or membership agreement, as applicable, of such partnership, limited
partnership or limited liability company, as applicable, by separate agreement or otherwise.
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Β Β Β Β Β Β Β Β Β Β βPatentsβ means collectively, all of the following of any Grantor: (a)Β all patents,
rights and interests in patents, patentable inventions and patent applications anywhere in the
world, including, without limitation, those listed on ScheduleΒ 3.10 hereto, (b)Β all reissues,
extensions, continuations (in whole or in part) and renewals of any of the foregoing, (c)Β all
income, royalties, damages or payments now or hereafter due and/or payable under any of the
foregoing or with respect to any of the foregoing, including, without limitation, damages or
payments for past or future infringements of any of the foregoing, (d)Β the right to xxx for past,
present and future infringements of any of the foregoing and (e)Β all rights corresponding to any of
the foregoing throughout the world.
Β Β Β Β Β Β Β Β Β Β βPatent Licenseβ means all agreements now or hereafter in existence, whether written
or oral, providing for the grant by or to any Grantor of any right to manufacture, use or sell any
invention covered in whole or in part by a Patent, including, without limitation, any of the
foregoing referred to in ScheduleΒ 3.10 hereto.
Β Β Β Β Β Β Β Β Β Β βRestricted Securities Collateralβ has the meaning assigned thereto in SectionΒ 5.3(a).
Β Β Β Β Β Β Β Β Β Β βSecurities Actβ means the Securities Act of 1933, including all amendments thereto
and regulations promulgated thereunder.
Β Β Β Β Β Β Β Β Β Β βSecurity Interestsβ means the security interests granted pursuant to Article
II, as well as all other security interests created or assigned as additional security for the
Obligations pursuant to the provisions of the Credit Agreement.
Β Β Β Β Β Β Β Β Β Β βSubsidiary Issuerβ means any Issuer of Investment Property or any Partnership/LLC
Interests, which such Issuer is a direct or indirect Subsidiary of the Borrower.
Β Β Β Β Β Β Β Β Β Β βTrademarksβ means collectively, all of the following of any Grantor: (a)Β all
trademarks, rights and interests in trademarks, trade names, corporate names, company names,
business names, fictitious business names, trade styles, service marks, logos, other business
identifiers, prints and labels on which any of the foregoing have appeared or appear, all
registrations and recordings thereof, and all applications in connection therewith anywhere in the
world, including, without limitation, those listed on ScheduleΒ 3.10 hereto, (b)Β all reissues,
extensions, continuations (in whole or in part) and renewals of any of the foregoing, (c)Β all
income, royalties, damages and payments now or hereafter due and/or payable under any of the
foregoing or with respect to any of the foregoing, including, without limitation, damages or
payments for past or future infringements of any of the foregoing, (d)Β the right to xxx for past,
present and future infringements of any of the foregoing and (e)Β all rights corresponding to any of
the foregoing throughout the world.
Β Β Β Β Β Β Β Β Β Β βTrademark Licenseβ means any agreement now or hereafter in existence, whether written
or oral, providing for the grant by or to any Grantor of any right to use any Trademark, including,
without limitation, any of the foregoing referred to in ScheduleΒ 3.10.
Β Β Β Β Β Β Β Β Β Β βUCCβ means the Uniform Commercial Code as in effect in the State of New York, as
amended or modified from time to time.
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Β Β Β Β Β Β Β Β Β Β βVehiclesβ means all cars, trucks, trailers, construction and earth moving equipment
and other vehicles covered by a certificate of title under the laws of any state and all tires and
all other appurtenances to any of the foregoing.
Β Β Β Β Β SectionΒ 1.3. Other Definitional Provisions
Β Β Β Β Β . Capitalized terms used and not otherwise defined in this Agreement including the preambles and
Statements of Purpose hereof shall have the meanings ascribed to them in the Credit Agreement. The
words βhereofβ, βhereinβ, βheretoβ and βhereunderβ and words of similar import when used in this
Agreement shall refer to this Agreement as a whole and not to any particular provision of this
Agreement, and Article, Section and Schedule references are to this Agreement unless otherwise
specified. The meanings given to terms defined herein shall be equally applicable to both the
singular and plural forms of such terms. Where the context requires, terms relating to the
Collateral or any part thereof, when used in relation to a Grantor, shall refer to such Grantorβs
Collateral or the relevant part thereof.
ARTICLE II
SECURITY INTEREST
Β Β Β Β Β SectionΒ 2.1. Grant of Security Interest. Each Grantor hereby grants, pledges and collaterally assigns to the Administrative Agent, for
the ratable benefit of itself and the other Secured Parties, a security interest in, all of such
Grantorβs right, title and interest in the following property now owned or at any time hereafter
acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire
any right, title or interest, and wherever located or deemed located (collectively, the
βCollateralβ), as collateral security for the prompt and complete payment and performance
when due (whether at the stated maturity, by acceleration or otherwise) of the Obligations of the
Borrower or such Guarantor:
Β Β Β Β Β (a)Β all Accounts;
Β Β Β Β Β (b)Β all Chattel Paper;
Β Β Β Β Β (c)Β all Deposit Accounts;
Β Β Β Β Β (d)Β all Documents;
Β Β Β Β Β (e)Β all Equipment;
Β Β Β Β Β (f)Β all Fixtures;
Β Β Β Β Β (g)Β all General Intangibles;
Β Β Β Β Β (h)Β all Instruments;
Β Β Β Β Β (i)Β all Intellectual Property;
Β Β Β Β Β (j)Β all Inventory;
Β Β Β Β Β (k)Β all Investment Property;
Β Β Β Β Β (l)Β all Letter-of-Credit Rights;
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Β Β Β Β Β (m)Β all Vehicles;
Β Β Β Β Β (n)Β all other personal property not otherwise described above;
Β Β Β Β Β (o)Β all books and records pertaining to the Collateral; and
Β Β Β Β Β (p)Β to the extent not otherwise included, all Proceeds and products of any and all of the
foregoing and all collateral security and Supporting Obligations given by any Person with respect
to any of the foregoing;
provided that (a)Β the Security Interest shall not cover any Excluded Property, and
provided, further, that the Security Interests are subject to the provisions of
Applicable Law (e.g., UCC SectionΒ 9-408(c)).
Β Β Β Β Β SectionΒ 2.2. Grantors Remain Liable. Anything herein to the contrary notwithstanding: (a)Β each Grantor shall remain liable under the
contracts and agreements included in the Collateral to the extent set forth therein to perform all
of its duties and obligations thereunder to the same extent as if this Agreement had not been
executed, (b)Β the exercise by the Administrative Agent of any of the rights hereunder shall not
release any Grantor from any of its duties or obligations under the contracts and agreements
included in the Collateral, (c)Β neither the Administrative Agent nor any other Secured Party shall
have any obligation or liability under the contracts and agreements included in the Collateral by
reason of this Agreement, nor shall the Administrative Agent or any other Secured Party be
obligated to perform any of the obligations or duties of any Grantor thereunder or to take any
action to collect or enforce any claim for payment assigned hereunder, and (d)Β neither the
Administrative Agent nor any other Secured Party shall have any liability in contract or tort for
any Grantorβs acts or omissions.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Β Β Β Β Β Β Β Β Β Β To induce the Administrative Agent and the Lenders to enter into the Credit Agreement and to
induce the Lenders to make their respective extensions of credit to the Borrower thereunder, each
Grantor hereby represents and warrants to the Administrative Agent and each other Secured Party
that:
Β Β Β Β Β SectionΒ 3.1. Existence. Each Grantor is duly organized, validly existing and in good standing (or its equivalent) under
the laws of the jurisdiction of its incorporation or formation, has all requisite power and
authority to own, lease and operate its properties and to carry on its business as now being and
hereafter proposed to be conducted and is duly qualified and authorized to do business in each
jurisdiction in which the character
of its properties or the nature of its business requires such qualification and authorization other
than in such jurisdiction where failure to so qualify could not reasonably be expected to have a
Material Adverse Effect.
Β Β Β Β Β SectionΒ 3.2. Authorization of Agreement; No Conflict. Each Grantor has the right, power and authority and has taken all necessary corporate and other
action to authorize the execution, delivery and performance of this Agreement. This Agreement has
been duly executed and delivered by the duly authorized officers of each Grantor and this Agreement
constitutes the legal, valid and binding obligation of the Grantors enforceable in accordance with
its terms, except as such enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar state or federal debtor relief laws from time to time in effect which affect
the enforcement of creditorsβ rights in general and the availability of equitable remedies. The
execution, delivery and performance by the Grantors of this Agreement will not, by the passage of
time, the giving of notice or otherwise, violate any material provision of any Applicable Law or
Material Contract and will not result in the creation or imposition of any Lien, other than the
Security Interests, upon or with respect to any property or revenues of any Grantor.
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Β Β Β Β Β SectionΒ 3.3. Consents.
Β Β Β Β Β (a)Β No approval, consent, exemption, authorization, or other action by, or notice to, or
filing with, any Governmental Authority or any other Person is necessary or required in connection
with the execution, delivery or performance by, or enforcement against, any Grantor of this
Agreement except (i)Β as may be required by Applicable Law affecting the offering and sale of
securities generally, (ii)Β filings with the United States Copyright Office and/or the United States
Patent and Trademark Office, (iii)Β filings under the Uniform Commercial Code of the applicable
jurisdictions with respect to the Collateral and (iv)Β those notices, consents and authorizations
which have been obtained prior to the Effective Date.
Β Β Β Β Β (b)Β Each of the Grantors (i)Β has all Governmental Approvals required by any Applicable Law for
it to conduct its business, each of which is in full force and effect, is final and not subject to
review on appeal and is not the subject of any pending or, to the best of its knowledge, threatened
attack by direct or collateral proceeding, (ii)Β is in compliance in all material respects with each
Governmental Approval applicable to it and is in compliance in all material respects with all other
Applicable Laws relating to it or any of its respective properties and (iii)Β has timely filed all
material reports, documents and other materials required to be filed by it under all Applicable
Laws with any Governmental Authority and has retained all material records and documents required
to be retained by it under Applicable Law.
Β Β Β Β Β SectionΒ 3.4. Perfected First Priority Liens. Each financing statement naming any Grantor as a debtor is in appropriate form for filing in the
appropriate filing offices of the states specified on ScheduleΒ 3.6. The Security Interests granted
pursuant to this Agreement (a)Β constitute valid perfected security interests in all of the
Collateral in favor of the Administrative Agent, for the ratable benefit of itself and the other
Secured Parties, as collateral security for the Obligations, enforceable in accordance with the
terms hereof against all creditors of such Grantor and any Persons purporting to purchase any
Collateral from such Grantor and (b)Β are prior to all other Liens on the Collateral in existence on
the date hereof except for Liens permitted pursuant to SectionΒ 6.02 of the Credit Agreement.
Β Β Β Β Β SectionΒ 3.5. Title, No Other Liens. Except for the Security Interests, each Grantor owns each item of the Collateral free and clear
of any and all Liens or claims other than Liens permitted pursuant to SectionΒ 6.02 of the Credit
Agreement. No financing statement under the UCC of any state which names a Grantor as debtor or
other public notice with respect to all or any part of the Collateral is on file or of record in
any public office, except such as have been filed in favor of the Administrative Agent, for the
ratable benefit of itself and the other Secured Parties, pursuant to this Agreement or in
connection with Liens permitted pursuant to SectionΒ 6.02 of the Credit Agreement. No Collateral is
in the possession or Control of any Person asserting any claim thereto or security interest
therein, except that (a)Β the Administrative Agent or its designee may have possession or Control of
Collateral as contemplated hereby, (b)Β a depositary bank may have Control of a Deposit Account
owned by a Grantor at such depositary bank and a Securities Intermediary may have Control over a
Securities Account owned by a Grantor at such Securities Intermediary, in each case subject to the
terms of any deposit account control agreement or securities control agreement, as applicable and
to the extent required by SectionΒ 4, in favor of the Administrative Agent, and (c)Β a bailee,
consignee or other Person may have possession of the Collateral as contemplated by, and so long as,
the applicable Grantors have complied to the satisfaction of the Administrative Agent with the
applicable provisions of SectionΒ 4.
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Β Β Β Β Β SectionΒ 3.6. State of Organization; Location of Inventory, Equipment and Fixtures; other
Information.
Β Β Β Β Β (a)Β Each Grantor was organized and remains organized under the laws of the state identified on
ScheduleΒ 3.6 under such Grantorβs name. The taxpayer identification number and registered
organization number of each Grantor is set forth on ScheduleΒ 3.6 under such Grantorβs name.
Β Β Β Β Β (b)Β All Collateral consisting of Inventory, Equipment and Fixtures (whether now owned of
hereafter acquired) is (or will be) located at the locations specified on ScheduleΒ 3.6, except as
otherwise permitted hereunder.
Β Β Β Β Β (c)Β The mailing address, chief place of business, chief executive office and office where each
Grantor keeps its books and records relating to the Accounts, Documents, General Intangibles,
Instruments and Investment Property in which it has any interest is located at the locations
specified on ScheduleΒ 3.6 under such Grantorβs name. No Grantor has any other places of business
except those separately set forth on ScheduleΒ 3.6 under such Grantorβs name. No Grantor does
business nor has done business during the past five years under any trade name or fictitious
business name except as disclosed on ScheduleΒ 3.6 under such Grantorβs name. Except as disclosed
on ScheduleΒ 3.6 under such Grantorβs name, no Grantor has acquired assets from any Person, other
than assets acquired in the ordinary course of such Grantorβs business, during the past five years.
Β Β Β Β Β SectionΒ 3.7. Accounts and Material Government Contracts.
Β Β Β Β Β (a)Β Each existing Account constitutes, and each hereafter arising Account will constitute, the
legally valid and binding obligation of the applicable Account Debtor. The amount represented by
each Grantor to the Administrative Agent as owing by each Account Debtor is, or will be, the
correct amount actually and unconditionally owing, except for normal cash discounts and allowances
where applicable. No Account Debtor has any defense, set-off, claim or counterclaim against any
Grantor that can be asserted against the Administrative Agent, whether in any proceeding to enforce
Administrative Agentβs rights in the Collateral or otherwise except defenses, setoffs, claims or
counterclaims that are not, in the aggregate, material to the value of the Accounts. None of the
Accounts is, nor will any hereafter arising
Account be, evidenced by a promissory note or other Instrument that has not been pledged to
the Administrative Agent in accordance with the terms hereof.
Β Β Β Β Β (b)Β Neither the Borrower nor any of its Subsidiaries is on the date hereof or will be on the
Acquisition Date (after giving effect to the consummation of the Acquisition) party to any Material
Government Contract.
Β Β Β Β Β SectionΒ 3.8. Chattel Paper. As of the date hereof, no Grantor holds any Chattel Paper in the ordinary course of its
business.
Β Β Β Β Β SectionΒ 3.9. Deposit Accounts. As of the date hereof, all Deposit Accounts (including, without limitation, cash management
accounts that are Deposit Accounts) owned by any Grantor are listed on ScheduleΒ 3.9.
Β Β Β Β Β SectionΒ 3.10. Intellectual Property.
Β Β Β Β Β (a)Β All United States Copyright registrations, Copyright applications, issued Patents,
Trademark registrations and Trademark applications owned by any Grantor in its own name on the date
hereof is listed on ScheduleΒ 3.10.
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Β Β Β Β Β (b)Β Except as set forth in ScheduleΒ 3.10 on the date hereof, none of the Intellectual Property
owned by any Grantor is the subject of any written licensing or franchise agreement pursuant to
which such Grantor is the licensor or franchisor, other than any such agreement that by itself or
in the aggregate with other such agreements could not reasonably be expected to have a Material
Adverse Effect.
Β Β Β Β Β SectionΒ 3.11. Inventory. Collateral consisting of Inventory is of good and merchantable quality, normal wear and tear
excepted, free from any defects. To the knowledge of each Grantor, none of such Inventory is
subject to any licensing, Patent, Trademark, trade name or Copyright with any Person that restricts
any Grantorβs ability to manufacture and/or sell such Inventory. The completion of the
manufacturing process of such Inventory by a Person other than the applicable Grantor would be
permitted under any contract to which such Grantor is a party or to which the Inventory is subject.
Β Β Β Β Β SectionΒ 3.12. Investment Property; Partnership/LLC Interests.
Β Β Β Β Β (a)Β As of the date hereof, all Investment Property (including, without limitation, Securities
Accounts and cash management accounts that are Investment Property) and all Partnership/LLC
Interests owned by any Grantor is listed on ScheduleΒ 3.12.
Β Β Β Β Β (b)Β All Investment Property and all Partnership/LLC Interests issued by any Subsidiary Issuer
to any Grantor (i)Β have been duly and validly issued and, if applicable, are fully paid and
nonassessable, (ii)Β are beneficially owned of record by such Grantor and (iii)Β constitute all the
issued and outstanding shares of all classes of the capital stock of such Subsidiary Issuer issued
to such Grantor except as set forth on ScheduleΒ 3.12.
ARTICLE IV
COVENANTS
Β Β Β Β Β Β Β Β Β Β Until the Obligations (excluding Obligations not yet due and payable under the Secured Hedging
Agreements that have not been terminated) shall have been paid in full, the Commitments have been
terminated and all Letters of Credit have been terminated, the Borrower covenants and agrees with
the Lenders that, unless consent has been obtained in the manner provided for in SectionΒ 7.1, each
Grantor covenants and agrees that:
Β Β Β Β Β SectionΒ 4.1. Maintenance of Perfected Security Interest; Further Information.
Β Β Β Β Β (a)Β Each Grantor shall maintain the Security Interest created by this Agreement as a perfected
Security Interest having at least the priority described in SectionΒ 3.4 and shall defend such
Security Interest against the claims and demands of all Persons whomsoever.
Β Β Β Β Β (b)Β Each Grantor will furnish to the Administrative Agent and the Lenders from time to time
statements and schedules further identifying and describing the assets and property of such Grantor
and such other reports in connection therewith as the Administrative Agent may reasonably request,
all in reasonable detail.
Β Β Β Β Β SectionΒ 4.2. Maintenance of Insurance.
Β Β Β Β Β (a)Β Each Grantor will maintain, with financially sound and reputable companies, insurance
policies (i)Β insuring the Collateral against loss by fire, explosion, theft, fraud and such other
casualties, including business interruption, as may be reasonably satisfactory to the
Administrative Agent in amounts and with deductibles as are customarily maintained by companies
engaged in the same or similar businesses operating in the same or similar locations and (ii)
insuring such Grantor and the Administrative Agent, for the ratable benefit of the Secured Parties,
against liability for hazards, risks and liability to persons and property relating to the
Collateral, in amounts and with deductibles as are customarily maintained by companies engaged in
the same or similar businesses operating in the same or similar locations, such policies to be in
such form and having such coverage as may be reasonably satisfactory to the Administrative Agent
and the Required Lenders.
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Β Β Β Β Β (b)Β All such insurance shall (i)Β name the Administrative Agent for the ratable benefit of
itself and the other Secured Parties as loss payee (to the extent covering risk of loss or damage
to tangible property) and as an additional insured as its interests may appear (to the extent
covering any other risk), (ii)Β provide that no cancellation, material reduction in amount or
material change in coverage thereof shall be effective until at least thirty (30)Β days after
receipt by the Administrative Agent of written notice thereof and (iii)Β be reasonably satisfactory
in all other respects to the Administrative Agent.
Β Β Β Β Β (c)Β Upon the request of the Administrative Agent, each Grantor shall deliver to the
Administrative Agent and the Lenders periodic information from a reputable insurance broker with
respect to the insurance referred to in this SectionΒ 4.2.
Β Β Β Β Β SectionΒ 4.3. Changes in Locations; Changes in Name or Structure. No Grantor will, except upon thirty (30)Β daysβ prior written notice to the Administrative Agent
and delivery to the Administrative Agent of (a)Β all additional financing statements (executed if
necessary for any particular filing jurisdiction) and other instruments and documents reasonably
requested by the Administrative Agent to maintain the validity, perfection and priority of the
Security Interests and (b)Β if applicable, a written supplement to the Schedules of this Agreement:
Β Β Β Β Β (i) permit any Deposit Account to be held by a depositary bank other than the
depositary bank that held such Deposit Account as of the date hereof as set forth on
ScheduleΒ 3.9;
Β Β Β Β Β (ii) permit any of the Inventory, Equipment or Fixtures to be kept at a location other
than those listed on ScheduleΒ 3.6, except as otherwise permitted hereunder;
Β Β Β Β Β (iii) permit any Investment Property (other than Certificated Securities delivered to
the Administrative Agent pursuant to SectionΒ 4.5) to be held by a Securities Intermediary
other than the Securities Intermediary that held such Investment Property as of the date
hereof as set forth on ScheduleΒ 3.12;
Β Β Β Β Β (iv) change its jurisdiction of organization or the location of its chief executive
office from that identified on ScheduleΒ 3.6; or
Β Β Β Β Β (v) change its name, identity or corporate or organizational structure to such an
extent that any financing statement filed by the Administrative Agent in connection with
this Agreement would become misleading.
Β Β Β Β Β SectionΒ 4.4. Required Notifications. Each Grantor shall promptly notify the Administrative Agent, in writing, of: (a)Β any Lien (other
than the Security Interests or Liens permitted pursuant to SectionΒ 6.02 of the Credit Agreement) on
any of the Collateral which would adversely affect the ability of the Administrative Agent to
exercise any of its remedies hereunder, (b)Β the occurrence of any other event which could
reasonably be expected to have a Material Adverse Effect on the aggregate value of the Collateral
or on the Security Interests, (c)Β any Collateral acquired after the date hereof which, to the
knowledge of such Grantor, constitutes a Government Contract, (d)Β the acquisition by such Grantor
of any (i)Β Commercial Tort Claim, (ii)Β Deposit Account, (iii)Β Investment Property, in each case,
after the date hereof and (e)Β the occurrence of any material dispute, holdback, claim of set-off or
other claim by the applicable Governmental Authority under any Material Government Contract or
receipt by any Grantor of any notice of material suspension, debarment, cure notice, show cause
notice or notice of termination for default issued by any Governmental Authority to any Grantor.
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Β Β Β Β Β SectionΒ 4.5. Delivery Covenants. Each Grantor will deliver and pledge to the Administrative Agent, for the ratable benefit of
itself and the other Secured Parties, all Certificated Securities, Partnership/LLC Interests
evidenced by a certificate, negotiable Documents, Instruments, and Tangible Chattel Paper from time
to time owned or held by such Grantor, in each case, together with an Effective Endorsement and
Assignment and all Supporting Obligations, as applicable.
Β Β Β Β Β SectionΒ 4.6. Control Covenants.
Β Β Β Β Β (a)Β Each Grantor shall instruct (and otherwise use its reasonable efforts) to cause (i)Β each
depositary bank (other than the Administrative Agent) holding a Deposit Account owned by such
Grantor and (ii)Β each Securities Intermediary holding any Investment Property or a Securities
Account owned by such Grantor, to execute and deliver a control agreement, sufficient to provide
the Administrative Agent with Control of such Deposit Account, Investment Property or Securities
Account, as the case may be, and otherwise in form and substance satisfactory to the Administrative
Agent (any such depositary bank executing and delivering any such control agreement, a
βControlled Depositaryβ, and any such Securities Intermediary executing and delivering any
such control agreement, a βControlled Intermediaryβ), subject to SectionΒ 5.11(d) of the
Credit Agreement, within twenty (20)Β Business Days following any request thereof by the
Administrative Agent; provided that, notwithstanding the foregoing, no Grantor shall be
required to obtain a control agreement with respect to: (x)Β Deposit Accounts established solely as
prisoner trust accounts, (y)Β Deposit Accounts established solely for the purpose of funding payroll
and other compensation and benefits to employees and (z)Β so long as no Default has occurred and is
continuing, Deposit Accounts (other than as provided in SectionΒ 4.8(d)) with amounts on deposit
that, when aggregated with the amounts on deposit in all other Deposit Accounts for which a control
agreement has not be obtained (other than those specified in clauses (x)Β and (y)Β of this Section
4.6(a)), do not exceed $1,000,000 at any time). In the event any such depositary bank or
Securities Intermediary refuses to execute and deliver such control agreement, the Administrative
Agent, in its sole discretion, may require the applicable Deposit Account and Investment Property
to be transferred to the Administrative Agent or a Controlled Depositary or Controlled
Intermediary, as applicable. Following any such request and except as set forth above, all Deposit
Accounts and all Investment Property will be maintained with the Administrative Agent or a
Controlled Depository or a Controlled Intermediary, as applicable.
Β Β Β Β Β (b)Β Each Grantor will take such actions and deliver all such agreements as are requested by
the Administrative Agent to provide the Administrative Agent with Control of all Letter-of-Credit
Rights and Electronic Chattel Paper owned or held by such Grantor, including, without limitation,
with respect to any such Electronic Chattel Paper, by having the Administrative Agent identified as
the assignee of the Record(s) pertaining to the single authoritative copy thereof.
Β Β Β Β Β (c)Β No Grantor will change the depositary bank or account number of the Collection Account or
permit any payments or proceeds of any Material Government Contracts to be directed by such
Governmental Authority to an account other than the Collection Account, except upon twenty (20)
Business Daysβ prior written notice to the Administrative Agent and delivery to the Administrative
Agent of (i)Β all additional financing statements (executed if necessary for any particular filing
jurisdiction) and other instruments and documents reasonably requested by the Administrative Agent
to maintain the validity, perfection and priority of the Security Interests, (ii)Β if applicable, a
written supplement to ScheduleΒ 3.9 if any Grantor acquires ownership of a Deposit Account after the
date hereof, and (iii)Β a control agreement, executed by such Grantor and such depositary bank and
in form and substance satisfactory to the Administrative Agent, granting the Administrative Agent
Control of the Collection Account.
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Β Β Β Β Β (d)Β If any Collateral (other than Collateral specifically subject to the provisions of Section
4.6(a) and SectionΒ 4.6(b)) exceeding in value $150,000 in the aggregate (such Collateral exceeding
such amount, the βExcess Collateralβ) is at any time in the possession or control of any
consignee, warehouseman, bailee (other than a carrier transporting Inventory to a purchaser in the
ordinary course of business), processor, or any other third party, such Grantor shall notify in
writing such Person of the Security Interests created hereby, shall use its reasonable efforts to
obtain such Personβs agreement in writing to hold all such Collateral for the Administrative
Agentβs account subject to the Administrative Agentβs instructions, and shall cause such Person to
issue and deliver to the Administrative Agent
warehouse receipts, bills of lading or any similar documents relating to such Collateral
together with an Effective Endorsement and Assignment; provided that if such Grantor is not
able to obtain such agreement and cause the delivery of such items, the Administrative Agent, in
its sole discretion, may require such Excess Collateral to be moved to another location specified
thereby. Further, each Grantor shall perfect and protect such Grantorβs ownership interests in all
Inventory stored with a consignee against creditors of the consignee by filing and maintaining
financing statements against the consignee reflecting the consignment arrangement filed in all
appropriate filing offices, providing any written notices required to notify any prior creditors of
the consignee of the consignment arrangement, and taking such other actions as may be appropriate
to perfect and protect such Grantorβs interests in such Inventory under SectionΒ 2-326, Section
9-103, SectionΒ 9-324 and SectionΒ 9-505 of the UCC or otherwise. All such financing statements
filed pursuant to this SectionΒ 4.6(d) shall be assigned, on the face thereof, to the Administrative
Agent, for the ratable benefit of itself and the other Secured Parties.
Β Β Β Β Β (e)Β The Administrative Agent will cause to be established at a banking institution to be
selected by the Administrative Agent a cash collateral account (the βCollateral Accountβ),
that
Β Β Β Β Β (i) to the extent of all Investment Property or Financial Assets (other than cash)
credited thereto shall be a Securities Account in respect of which the Administrative Agent
shall be the Entitlement Holder,
Β Β Β Β Β (ii) to the extent of any cash credited thereto shall be a Deposit Account in respect
of which the Collateral Agent shall be the depository bankβs customer, and
Β Β Β Β Β (iii) into which each Grantor agrees to deposit from time to time the cash proceeds of
any of the Collateral (including proceeds of insurance thereon) required to be delivered to
the Administrative Agent pursuant to any of the Loan Documents, or pursuant hereto, and into
which any Grantor may from time to time deposit any additional amounts that it wishes to
provide as additional collateral security hereunder. The Collateral Account, and any money
or other property from time to time therein, shall constitute part of the Collateral
hereunder and shall not constitute payment of the Obligations until applied as hereinafter
provided.
Β Β Β Β Β SectionΒ 4.7. Filing Covenants. Pursuant to SectionΒ 9-509 of the UCC and any other Applicable Law, each Grantor authorizes the
Administrative Agent to file or record financing statements and other filing or recording documents
or instruments with respect to the Collateral without the signature of such Grantor in such form
and in such offices as the Administrative Agent reasonably determines appropriate to perfect the
Security Interests of the Administrative Agent under this Agreement. Such financing statements may
describe the Collateral in the same manner as described herein or may contain an indication or
description of Collateral that describes such property in any other manner as the Administrative
Agent may determine, in its reasonable discretion, is necessary, advisable or prudent to ensure the
perfection of the Security Interest in the Collateral granted herein, including, without
limitation, describing such property as βall assetsβ or βall personal propertyβ. Further, a
photographic or other reproduction of this Agreement shall be sufficient as a financing statement
or other filing or recording document or instrument for filing or recording in any jurisdiction.
Each Grantor hereby authorizes, ratifies and confirms all financing statements and other filing or
recording documents or instruments, if any, filed by Administrative Agent prior to the date of this
Agreement.
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Β Β Β Β Β SectionΒ 4.8. Accounts.
Β Β Β Β Β (a)Β Other than in the ordinary course of business consistent with its past practice, no
Grantor will (i)Β grant any extension of the time of payment of any Account, (ii)Β compromise or
settle any Account for less than the full amount thereof, (iii)Β release, wholly or partially, any
Account Debtor, (iv)Β allow any credit or discount whatsoever on any Account or (v)Β amend,
supplement or modify any Account in any manner that could adversely affect the value thereof.
Β Β Β Β Β (b)Β Each Grantor will deliver to the Administrative Agent a copy of each material demand,
notice or document received by it that questions or calls into doubt the validity or enforceability
of any material Account.
Β Β Β Β Β (c)Β The Administrative Agent shall have the right to make test verifications of the Accounts
in any manner and through any medium that it reasonably considers advisable, and each Grantor shall
furnish all such assistance and information as the Administrative Agent may require in connection
with such test verifications. At any time and from time to time, upon the Administrative Agentβs
request and at the expense of the relevant Grantor, such Grantor shall cause independent public
accountants or others satisfactory to the Administrative Agent to furnish to the Administrative
Agent reports showing reconciliations, aging and test verifications of, and trial balances for, the
Accounts.
Β Β Β Β Β (d)Β With respect to each Material Government Contract entered into by any Grantor after the
date hereof, such Grantor shall (i)Β promptly deliver, following the date of required notice to the
Administrative Agent of such new Material Government Contract under this Agreement, the Credit
Agreement or any other Loan Document, an Assignment Agreement duly executed by such Grantor party
to such Material Government Contract in compliance with the Assignment of Claims Act (or analogous
state Applicable Law, if applicable), (ii)Β ensure that all payments made to such Grantor with
respect to such Material Government Contract are paid directly (through the use of a lock box or
otherwise) by such Governmental Authority to the Collection Account, and (iii)Β deliver to the
Administrative Agent a control agreement, executed by such Grantor and the applicable depositary
bank and in form and substance satisfactory to the Administrative Agent, granting the
Administrative Agent Control of the Collection Account.
Β Β Β Β Β (e)Β Upon the occurrence of a Default, the Administrative Agent may deliver (i)Β all Assignment
Agreements and (ii)Β all Notices of Assignment to the applicable Governmental Authority for each
Material Government Contract, and the Grantors agree to exert their best good faith efforts in
having such Notices of Assignment acknowledged in writing by the appropriate Governmental Authority
promptly after delivery thereof.
Β Β Β Β Β SectionΒ 4.9. Intellectual Property.
Β Β Β Β Β (a)Β Except as could not reasonably be expected to have a Material Adverse Effect, each Grantor
(either itself or through licensees) (i)Β will continue to use each registered Trademark (owned by
such Grantor) and Trademark for which an application (owned by such Grantor) is pending, to the
extent reasonably necessary to maintain such Trademark in full force free from any claim of
abandonment for non-use, (ii)Β will maintain products and services offered under such Trademark at a
level substantially
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consistent with the quality of such products and services as of the date
hereof, (iii)Β will not (and not permit any licensee or sublicensee thereof to) do any act or
knowingly omit to do any act whereby such Trademark could reasonably be expected to become
invalidated or impaired in any way, (iv)Β will not do
any act, or knowingly omit to do any act, whereby any issued Patent owned by such Grantor
would reasonably be expected to become forfeited, abandoned or dedicated to the public, (v)Β will
not (and will not permit any licensee or sublicensee thereof to) do any act or knowingly omit to do
any act whereby any registered Copyright owned by such Grantor or Copyright for which an
application is pending (owned by such Grantor) could reasonably be expected to become invalidated
or otherwise impaired and (vi)Β will not (and will not permit any licensee or sublicensee thereof
to) do any act whereby any material portion of the Copyrights may fall into the public domain.
Β Β Β Β Β (b)Β Each Grantor will notify the Administrative Agent and the Lenders promptly if it knows, or
has reason to know, that any application or registration relating to any material Intellectual
Property owned by such Grantor may become forfeited, abandoned or dedicated to the public, or of
any adverse determination or development (including, without limitation, the institution of, or any
such determination or development in, any proceeding in the United States Patent and Trademark
Office, the United States Copyright Office or any court or tribunal in any country) regarding such
Grantorβs ownership of, or the validity of, any material Intellectual Property owned by such
Grantor or such Grantorβs right to register the same or to own and maintain the same.
Β Β Β Β Β (c)Β Whenever such Grantor, either by itself or through any agent, employee, licensee or
designee, shall file an application for the registration of any Intellectual Property with the
United States Patent and Trademark Office, the United States Copyright Office or any similar office
or agency in any other country or any political subdivision thereof, such Grantor shall report such
filing to the Administrative Agent within five (5)Β Business Days after the last day of the fiscal
quarter in which such filing occurs. Upon request of the Administrative Agent, such Grantor shall
execute and deliver, and have recorded, any and all agreements, instruments, documents, and papers
as the Administrative Agent may reasonably request to evidence the Administrative Agentβs and the
other Secured Partiesβ security interest in any material Copyright, Patent or Trademark and the
goodwill and General Intangibles of such Grantor relating thereto or represented thereby.
Β Β Β Β Β (d)Β Each Grantor will take all reasonable and necessary steps, at such Grantorβs sole cost and
expense, including, without limitation, in any proceeding before the United States Patent and
Trademark Office, the United States Copyright Office or any similar office or agency in any other
country or any political subdivision thereof, to maintain and pursue each application (and to
obtain the relevant registration) and to maintain each registration of the material Intellectual
Property, including, without limitation, filing of applications for renewal, affidavits of use and
affidavits of incontestability.
Β Β Β Β Β (e)Β In the event that any material Intellectual Property owned by a Grantor is infringed,
misappropriated or diluted by a third party, the applicable Grantor shall (i)Β at such Grantorβs
sole cost and expense, take such actions as such Grantor shall reasonably deem appropriate under
the circumstances to protect such Intellectual Property and (ii)Β if such Intellectual Property is
of material economic value, promptly notify the Administrative Agent after it learns of such
infringement, misappropriation or dilution.
Β Β Β Β Β SectionΒ 4.10. Investment Property; Partnership/LLC Interests.
Β Β Β Β Β (a)Β Without the prior written consent of the Administrative Agent, no Grantor will (i)Β vote to
enable, or take any other action to permit, any Issuer to issue any Investment Property or
Partnership/LLC Interests, except for such additional Investment Property or Partnership/LLC
Interests that will be subject to the Security Interest granted herein in favor of the
Administrative Agent, or (ii)Β enter into any
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agreement or undertaking restricting the right or
ability of such Grantor or the Administrative Agent to
sell, assign or transfer any Investment Property or Partnership/LLC Interests or Proceeds
thereof. The Grantors will defend the right, title and interest of the Administrative Agent in and
to any Investment Property and Partnership/LLC Interests against the claims and demands of all
Persons whomsoever.
Β Β Β Β Β (b)Β If any Grantor shall become entitled to receive or shall receive (i)Β any Certificated
Securities (including, without limitation, any certificate representing a stock dividend or a
distribution in connection with any reclassification, increase or reduction of capital or any
certificate issued in connection with any reorganization), option or rights in respect of the
ownership interests of any Issuer, whether in addition to, in substitution of, as a conversion of,
or in exchange for, any Investment Property, or otherwise in respect thereof, or (ii)Β any sums paid
upon or in respect of any Investment Property upon the liquidation or dissolution of any Issuer,
such Grantor shall accept the same as the agent of the Administrative Agent and the other Secured
Parties, hold the same in trust for the Administrative Agent and the other Secured Parties,
segregated from other funds of such Grantor, and promptly deliver the same to the Administrative
Agent in accordance with the terms hereof.
Β Β Β Β Β SectionΒ 4.11. Equipment. Each Grantor will maintain each item of Equipment in good working order and condition
(reasonable wear and tear and obsolescence excepted), and in accordance with any manufacturerβs
manual, and will as quickly as practicable provide all maintenance, service and repairs necessary
for such purpose and will promptly furnish to the Administrative Agent a statement respecting any
material loss or damage to any of the Equipment.
Β Β Β Β Β SectionΒ 4.12. Vehicles. Upon the request of the Administrative Agent upon the occurrence and during the continuance of
an Event of Default, all applications for certificates of title or ownership indicating the
Administrative Agentβs first priority Lien on the Vehicle covered by such certificate, and any
other necessary documentation, shall be filed in each office in each jurisdiction which the
Administrative Agent shall deem reasonably advisable to perfect its Liens on the Vehicles. Prior
thereto, each certificate of title or ownership relating to each Vehicle shall be maintained by the
applicable Grantor in accordance with Applicable Law to reflect the ownership interest of such
Grantor.
Β Β Β Β Β SectionΒ 4.13. Further Assurances. Upon the request of the Administrative Agent and at the sole expense of the Grantors, each
Grantor will promptly and duly execute and deliver, and have recorded, such further instruments and
documents and take such further actions as the Administrative Agent may reasonably request for the
purpose of obtaining or preserving the full benefits of this Agreement and of the rights and powers
herein granted, including, without limitation, (i)Β the assignment of any Material Contract, (ii)
with respect to Government Contracts, assignment agreements and notices of assignment, in form and
substance satisfactory to the Administrative Agent, duly executed by any Grantor party to such
Government Contract in compliance with the Assignment of Claims Act (or analogous state Applicable
Law), (iii)Β with respect to Material Government Contracts, Assignment Agreements and Notices of
Assignment, in form and substance the same as that set forth on ExhibitΒ A-1 and ExhibitΒ A-2,
respectively, duly executed by any Grantors party to such Material Government Contract in
compliance with the Assignment of Claims Act (or analogous state Applicable Law) and acknowledged
in writing by the appropriate Governmental Authority, and (iv)Β all applications, certificates,
instruments, registration statements, and all other documents and papers the Administrative Agent
may reasonably request and as may be required by law in connection with the obtaining of any
consent, approval, registration, qualification, or authorization of any Person deemed necessary or
appropriate for the effective exercise of any rights under this Agreement.
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ARTICLE V
REMEDIAL PROVISIONS
Β Β Β Β Β SectionΒ 5.1. General Remedies. If an Event of Default shall occur and be continuing, the Administrative Agent, on behalf of the
Secured Parties, may exercise, in addition to all other rights and remedies granted to them in this
Agreement and in any other instrument or agreement securing, evidencing or relating to the
Obligations, all rights and remedies of a secured party under the UCC or any other Applicable Law.
Without limiting the generality of the foregoing, the Administrative Agent, without demand for
performance or other demand, presentment, protest, advertisement or notice of any kind (except any
notice required by law referred to below) to or upon any Grantor or any other Person (all and each
of which demands, defenses, advertisements and notices are hereby waived), may in such
circumstances forthwith collect, receive, appropriate and realize upon the Collateral, or any part
thereof, and/or may forthwith sell, lease, assign, give an option or options to purchase, or
otherwise dispose of and deliver the Collateral or any part thereof (or contract to do any of the
foregoing), in one or more parcels at public or private sale or sales, at any exchange, brokerβs
board or office of the Administrative Agent or any other Secured Party or elsewhere upon such terms
and conditions as it may deem advisable and at such prices as it may deem best, for cash or on
credit or for future delivery without assumption of any credit risk. The Administrative Agent may
disclaim any warranties of title, possession and quiet enjoyment. The Administrative Agent or any
other Secured Party shall have the right upon any such public sale or sales, and, to the extent
permitted by law, upon any such private sale or sales, to purchase the whole or any part of the
Collateral so sold, free of any right or equity of redemption held by any Grantor, which right or
equity is hereby waived and released. Each Grantor further agrees, at the Administrative Agentβs
request, to assemble the Collateral and make it available to the Administrative Agent at places
which the Administrative Agent shall reasonably select, whether at such Grantorβs premises or
elsewhere. To the extent permitted by Applicable Law, each Grantor waives all claims, damages and
demands it may acquire against the Administrative Agent or any other Secured Party arising out of
the exercise by them of any rights hereunder except to the extent any such claims, damages, or
demands result solely from the gross negligence or willful misconduct of the Administrative Agent
or any other Secured Party, in each case against whom such claim is asserted. If any notice of a
proposed sale or other disposition of Collateral shall be required by law, such notice shall be
deemed reasonable and proper if given at least ten (10)Β days before such sale or other disposition.
Β Β Β Β Β SectionΒ 5.2. Specific Remedies.
Β Β Β Β Β (a)Β The Administrative Agent hereby authorizes each Grantor to collect such Grantorβs
Accounts, under the Administrative Agentβs direction and control; provided that, the
Administrative Agent may curtail or terminate such authority at any time after the occurrence and
during the continuance of an Event of Default.
Β Β Β Β Β (b)Β Upon the occurrence and during the continuance of an Event of Default:
Β Β Β Β Β (i) the Administrative Agent may communicate with Account Debtors of any Account
subject to a Security Interest and upon the request of the Administrative Agent, each
Grantor shall notify (such notice to be in form and substance reasonably satisfactory
to the Administrative Agent) its Account Debtors and parties to the Material Contracts
subject to a Security Interest that such Accounts and the Material Contracts have been
assigned to the Administrative Agent, for the ratable benefit of itself and the other
Secured Parties;
Β Β Β Β Β (ii) each Grantor shall forward to the Administrative Agent, on the last Business Day
of each week, deposit slips related to all cash, money, checks or any other similar items of
payment received by the Grantor during such week, and, if requested by the Administrative
Agent, copies of such checks or any other similar items of payment, together with a
statement showing the application of all payments on the Collateral during such week and a
collection report with regard thereto, in form and substance reasonably satisfactory to the
Administrative Agent;
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Β Β Β Β Β (iii) whenever any Grantor shall receive any cash, money, checks or any other similar
items of payment relating to any Collateral (including any Proceeds of any Collateral), such
Grantor agrees that it will, within one (1)Β Business Day of such receipt, deposit all such
items of payment into the Collateral Account or in a Deposit Account at Controlled
Depositary, and until such Grantor shall deposit such cash, money, checks or any other
similar items of payment in the Collateral Account or in a Deposit Account at a Controlled
Depositary, such Grantor shall hold such cash, money, checks or any other similar items of
payment in trust for the Administrative Agent and the other Secured Parties and as property
of the Administrative Agent and the other Secured Parties, separate from the other funds of
such Grantor, and the Administrative Agent shall have the right to transfer or direct the
transfer of the balance of each Deposit Account to the Collateral Account. All such
Collateral and Proceeds of Collateral received by the Administrative Agent hereunder shall
be held by the Administrative Agent in the Collateral Account as collateral security for all
the Obligations and shall not constitute payment thereof until applied as provided in
SectionΒ 5.4;
Β Β Β Β Β (iv) the Administrative Agent shall have the right to receive any and all cash
dividends, payments or distributions made in respect of any Investment Property or
Partnership/LLC Interests or other Proceeds paid in respect of any Investment Property or
Partnership/LLC Interests, and any or all of any Investment Property or Partnership/LLC
Interests shall be registered in the name of the Administrative Agent or its nominee, and
the Administrative Agent or its nominee may thereafter exercise (A)Β all voting, corporate
and other rights pertaining to such Investment Property or Partnership/LLC Interests at any
meeting of shareholders, partners or members of the relevant Issuers and (B)Β any and all
rights of conversion, exchange and subscription and any other rights, privileges or options
pertaining to such Investment Property or Partnership/LLC Interests as if it were the
absolute owner thereof (including, without limitation, the right to exchange at its
discretion any and all of the Investment Property or Partnership/LLC Interests upon the
merger, consolidation, reorganization, recapitalization or other fundamental change in the
corporate, partnership or company structure of any Issuer or upon the exercise by any
Grantor or the Administrative Agent of any right, privilege or option pertaining to such
Investment Property or Partnership/LLC Interests, and in connection therewith, the right to
deposit and deliver any and all of the Investment Property or Partnership/LLC Interests with
any committee, depositary, transfer agent, registrar or other designated agency upon such
terms and conditions as the Administrative Agent may determine), all without liability
except to account for property actually received by it; but the Administrative Agent shall
have no duty to any Grantor to exercise any such right, privilege or option and the
Administrative Agent and the other Secured Parties shall not be responsible for any failure
to do so or delay in so doing. In furtherance thereof, each Grantor hereby authorizes and
instructs each Issuer with respect to any Collateral consisting of Investment Property and
Partnership/LLC
Interests to (i)Β comply with any instruction received by it from the Administrative
Agent in writing that (A)Β states that an Event of Default has occurred and is continuing and
(B)Β is otherwise in accordance with the terms of this Agreement, without any other or
further instructions from such Grantor, and each Grantor agrees that each Issuer shall be
fully protected in so complying, and (ii)Β except as otherwise expressly permitted hereby,
pay any dividends, distributions or other payments with respect to any Investment Property
or Partnership/LLC Interests directly to the Administrative Agent; and
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Β
Β Β Β Β Β (v) the Administrative Agent shall be entitled to (but shall not be required to): (A)
proceed to perform any and all obligations of the applicable Grantor under any Material
Contract and exercise all rights of such Grantor thereunder as fully as such Grantor itself
could, (B)Β do all other acts which the Administrative Agent may deem necessary or proper to
protect its Security Interest granted hereunder; provided that such acts are not
inconsistent with or in violation of the terms of any of the Credit Agreement or of the
other Loan Documents or Applicable Law, and (C)Β sell, assign or otherwise transfer any
Material Contract in accordance with the Credit Agreement, the other Loan Documents and
Applicable Law, subject, however, to the prior approval of each other party to such Material
Contract, to the extent required under the Material Contract; and
Β Β Β Β Β (c)Β Unless an Event of Default shall have occurred and be continuing and the Administrative
Agent shall have given notice to the relevant Grantor of the Administrative Agentβs intent to
exercise its corresponding rights pursuant to SectionΒ 5.2(b), each Grantor shall be permitted to
receive all cash dividends, payments or other distributions made in respect of any Investment
Property and Partnership/LLC Interests, in each case paid in the normal course of business of the
relevant Issuer and consistent with past practice, to the extent permitted in the Credit Agreement,
and to exercise all voting and other corporate, company and partnership rights with respect to any
Investment Property and Partnership/LLC Interests; provided that, no vote shall be cast or
other corporate, company and partnership right exercised or other action taken which, in the
Administrative Agentβs reasonable judgment, would impair the Collateral or which would result in a
Default under any provision of the Credit Agreement, this Agreement, any other Loan Document or any
Secured Hedging Agreement.
Β Β Β Β Β SectionΒ 5.3. Registration Rights.
Β Β Β Β Β (a)Β If, after the occurrence and during the continuance of an Event of Default, the
Administrative Agent shall determine that in order to exercise its right to sell any or all of the
Collateral it is necessary or advisable to have such Collateral registered under the provisions of
the Securities Act (any such Collateral, the βRestricted Securities Collateralβ), the
relevant Grantor will cause each applicable Subsidiary Issuer (and the officers and directors
thereof), and will use its best efforts to cause each other applicable Issuer, to (i)Β execute and
deliver all such instruments and documents, and do or cause to be done all such other acts as may
be, in the reasonable opinion of the Administrative Agent, necessary or advisable to register such
Restricted Securities Collateral, or that portion thereof to be sold, under the provisions of the
Securities Act, (ii)Β use its best efforts to cause the registration statement relating thereto to
become effective and to remain effective for a period of one year from the date of the first public
offering of such Restricted Securities Collateral, or that portion thereof to be sold, and (iii)
make all amendments thereto and/or to the related prospectus which, in the opinion of the
Administrative Agent, are necessary or advisable, all in conformity with the requirements of the
Securities Act and the rules and regulations of the Securities and Exchange Commission applicable
thereto. Each Grantor agrees to cause each applicable Subsidiary Issuer (and the officers and
directors thereof), and will use its best efforts to cause each other applicable Issuer, to comply
with the provisions of the securities or βBlue Skyβ laws of
any and all jurisdictions which the Administrative Agent shall designate and to make available
to its security holders, as soon as practicable, an earnings statement (which need not be audited)
which will satisfy the provisions of SectionΒ 11 (a)Β of the Securities Act.
Β Β Β Β Β (b)Β Each Grantor recognizes that the Administrative Agent may be unable to effect a public
sale of any or all the Restricted Securities Collateral, by reason of certain prohibitions
contained in the Securities Act and applicable state securities laws or otherwise, and may be
compelled to resort to one or more private sales thereof to a restricted group of purchasers which
will be obliged to agree, among other things, to acquire such securities for their own account for
investment and not with a view to the distribution or resale thereof. Each Grantor acknowledges
and agrees that any such private sale may result in prices and other terms less favorable than if
such sale were a public sale and, notwithstanding such circumstances, agrees that any such private
sale shall be deemed to have been made in a
20
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commercially reasonable manner. The Administrative
Agent shall be under no obligation to delay a sale of any of the Restricted Securities Collateral
for the period of time necessary to permit the Issuer thereof to register such securities for
public sale under the Securities Act, or under applicable state securities laws, even if such
Issuer would agree to do so.
Β Β Β Β Β (c)Β Each Grantor agrees to use its best efforts to do or cause to be done all such other acts
as may be necessary to make such sale or sales of all or any portion of the Restricted Securities
Collateral valid and binding and in compliance with any and all other Applicable Laws. Each
Grantor further agrees that a breach of any of the covenants contained in this SectionΒ 5.3 will
cause irreparable injury to the Administrative Agent and the other Secured Parties, that the
Administrative Agent and the other Secured Parties have no adequate remedy at law in respect of
such breach and, as a consequence, that each and every covenant contained in this SectionΒ 5.3 shall
be specifically enforceable against such Grantor, and such Grantor hereby waives and agrees not to
assert any defenses against an action for specific performance of such covenants except for a
defense that no Event of Default exists under the Credit Agreement.
Β Β Β Β Β SectionΒ 5.4. Application of Proceeds. At such intervals as may be agreed upon by the Borrower and the Administrative Agent, or, if an
Event of Default shall have occurred and be continuing, at any time at the Administrative Agentβs
election, the Administrative Agent may apply all or any part of the Collateral or any Proceeds of
the Collateral as provided in SectionΒ 7.02(b) of the Credit Agreement.
Β Β Β Β Β SectionΒ 5.5. Waiver, Deficiency. Except to the extent prohibited under Applicable Law (including SectionΒ 9-602 of the UCC), each
Grantor waives and agrees not to assert any rights or privileges which it may acquire under
SectionsΒ 9-210, 9-607, 9-608, 9-610, 9-615, 9-620, 9-621, 9-623, 9-624, 9-625 or 9-627 of the UCC.
Each Grantor shall remain liable for any deficiency if the proceeds of any sale or other
disposition of the Collateral are insufficient to pay the Obligations and the reasonable fees and
disbursements of any attorneys retained by the Administrative Agent or any other Secured Party to
collect such deficiency.
ARTICLE VI
THE ADMINISTRATIVE AGENT
Β Β Β Β Β SectionΒ 6.1. Administrative Agentβs Appointment as Attorney-In-Fact.
Β Β Β Β Β (a)Β Each Grantor hereby irrevocably constitutes and appoints the Administrative Agent and any
officer or agent thereof, with full power of substitution, as its true and lawful attorney-in-fact
with full irrevocable power and authority in the place and stead of such Grantor and in the name of
such Grantor or in its own name, for the purpose of carrying out the terms of this Agreement, to
take any and all appropriate action and to execute any and all documents and instruments which may
be necessary or desirable to accomplish the purposes of this Agreement, and, without limiting the
generality of the foregoing, each Grantor hereby gives the Administrative Agent the power and
right, on behalf of such Grantor, without notice to or assent by such Grantor, to do any or all of
the following upon the occurrence and continuation of an Event of Default:
Β Β Β Β Β (i) in the name of such Grantor or its own name, or otherwise, take possession of and
endorse and collect any checks, drafts, notes, acceptances or other instruments for the
payment of moneys due under any Account or Material Contract subject to a Security Interest
or with respect to any other Collateral and file any claim or take any other action or
proceeding in any court of law or equity or otherwise deemed appropriate by the
Administrative Agent for the purpose of collecting any and all such moneys due under any
Account or Material Contract subject to a Security Interest or with respect to any other
Collateral whenever payable;
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Β Β Β Β Β (ii) in the case of any Intellectual Property, execute and deliver, and have recorded,
any and all agreements, instruments, documents and papers as the Administrative Agent may
request to evidence the Administrative Agentβs and the other Secured Partiesβ security
interest in such Intellectual Property and the goodwill and General Intangibles of such
Grantor relating thereto or represented thereby;
Β Β Β Β Β (iii) pay or discharge taxes and Liens levied or placed on or threatened against the
Collateral, effect any repairs or any insurance called for by the terms of this Agreement
and pay all or any part of the premiums therefor and the costs thereof;
Β Β Β Β Β (iv) execute, in connection with any sale provided for in this Agreement, any
endorsements, assignments or other instruments of conveyance or transfer with respect to the
Collateral; and
Β Β Β Β Β (v) (A)Β direct any party liable for any payment under any of the Collateral to make
payment of any and all moneys due or to become due thereunder directly to the Administrative
Agent or as the Administrative Agent shall direct; (B)Β ask or demand for, collect, and
receive payment of and receipt for, any and all moneys, claims and other amounts due or to
become due at any time in respect of or arising out of any Collateral; (C)Β sign and endorse
any invoices, freight or express bills, bills of lading, storage or warehouse receipts,
drafts against debtors, assignments, verifications, notices and other documents in
connection with any of the Collateral; (D)Β commence and prosecute any suits, actions or
proceedings at law or in equity in any court of competent jurisdiction to collect the
Collateral or any portion thereof and to enforce any other right in respect of any
Collateral; (E)Β defend any suit, action or proceeding brought against such Grantor with
respect to any Collateral; (F)Β settle, compromise or adjust any such suit, action or
proceeding and, in connection therewith, give such discharges or releases as the
Administrative Agent may deem appropriate; (G)Β assign any Copyright, Patent or Trademark
(along with the goodwill of the business to which any such Copyright, Patent or Trademark
pertains), for such term or terms, on such conditions, and in such manner, as the
Administrative Agent shall in its sole discretion determine; and (H)Β generally, sell,
transfer, pledge and make any agreement with respect to or otherwise deal with any of the
Collateral as fully and completely as though the Administrative Agent were the absolute
owner thereof for all purposes, and do, at the Administrative Agentβs option and such
Grantorβs expense, at any time, or from time to time, all acts and things which the
Administrative Agent deems necessary or desirable to protect, preserve or realize upon the
Collateral and the Administrative Agentβs and the other Secured Partiesβ Security Interests
therein and to effect the intent of this Agreement, all as fully and effectively as such
Grantor might do.
Β Β Β Β Β (b)Β If any Grantor fails to perform or comply with any of its agreements contained herein, the
Administrative Agent, at its option, but without any obligation so to do, may perform or comply, or
otherwise cause performance or compliance, with such agreement in accordance with the provisions of
SectionΒ 6.1(a).
Β Β Β Β Β (c)Β The expenses of the Administrative Agent incurred in connection with actions taken
pursuant to the terms of this Agreement, together with interest thereon at a rate per annum equal
to the highest rate per annum at which interest would then be payable on any category of past due
ABR Loans under the Credit Agreement, from the date of payment by the Administrative Agent to the
date reimbursed by the relevant Grantor, shall be payable by such Grantor to the Administrative
Agent on demand.
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Β Β Β Β Β (d)Β Each Grantor hereby ratifies all that said attorneys shall lawfully do or cause to be done
by virtue hereof in accordance with SectionΒ 6.1(a). All powers, authorizations and agencies
contained in this Agreement are coupled with an interest and are irrevocable until this Agreement
is terminated and the Security Interests created hereby are released.
Β Β Β Β Β SectionΒ 6.2. Duty of Administrative Agent. The Administrative Agentβs sole duty with respect to the custody, safekeeping and physical
preservation of the Collateral in its possession, under SectionΒ 9-207 of the UCC or otherwise,
shall be to deal with it in the same manner as the Administrative Agent deals with similar property
for its own account. Neither the Administrative Agent nor any other Secured Party or any of their
respective officers, directors, employees or agents shall be liable for failure to demand, collect
or realize upon any of the Collateral or for any delay in doing so or shall be under any obligation
to sell or otherwise dispose of any Collateral upon the request of any Grantor or any other Person
or to take any other action whatsoever with regard to the Collateral or any part thereof. The
powers conferred on the Administrative Agent and the other Secured Parties hereunder are solely to
protect the Administrative Agentβs and the other Secured Partiesβ interests in the Collateral and
shall not impose any duty upon the Administrative Agent or any other Secured Party to exercise any
such powers. The Administrative Agent and the other Secured Parties shall be accountable only for
amounts that they actually receive as a result of the exercise of such powers, and neither they nor
any of their officers, directors, employees or agents shall be responsible to any Grantor for any
act or failure to act hereunder, except for their own gross negligence or willful misconduct.
Β Β Β Β Β SectionΒ 6.3. Authority of Administrative Agent. Each Grantor acknowledges that the rights and responsibilities of the Administrative Agent under
this Agreement with respect to any action taken by the Administrative Agent or the exercise or
non-exercise by the Administrative Agent of any option, voting right, request, judgment or other
right or remedy provided for herein or resulting or arising out of this Agreement shall, as between
the Administrative Agent and the other Secured Parties, be governed by the Credit Agreement and by
such other agreements with respect thereto as may exist from time to time among them, but, as
between the Administrative Agent and the Grantors, the Administrative Agent shall be conclusively
presumed to be acting as agent for the Secured Parties with full and valid authority so to act or
refrain from acting, and no Grantor shall be under any obligation, or entitlement to make any
inquiry respecting such authority.
ARTICLE VII
MISCELLANEOUS
Β Β Β Β Β SectionΒ 7.1. Amendments and Waivers. The terms and provisions of this Agreement may be waived, amended, supplemented or otherwise
modified only by an instrument in writing duly executed by each Grantor and the Administrative
Agent (with the consent of Lenders, to the extent required by SectionΒ 9.02 of the Credit
Agreement). Any such amendment or waiver shall be binding upon the Secured Parties and the
Grantors.
Β Β Β Β Β SectionΒ 7.2. Notices. All notices, requests and demands to or upon the Administrative Agent or any Grantor hereunder
shall be given to the addresses and otherwise made in accordance with SectionΒ 9.01 of the Credit
Agreement and shall be deemed to have been given at the times specified in said SectionΒ 9.01;
provided that notices and communications to the Grantors shall be directed to the Grantors,
at the address of the Borrower set forth in SectionΒ 9.01 of the Credit Agreement.
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Β Β Β Β Β SectionΒ 7.3. No Waiver by Course of Conduct, Cumulative Remedies. Neither the Administrative Agent nor any other Secured Party shall by any act (except by a
written instrument pursuant to SectionΒ 7.1), delay, indulgence, omission or otherwise be deemed to
have waived any right or remedy hereunder or to have acquiesced in any Default. No failure to
exercise, nor any delay in exercising on the part of the Administrative Agent or any other Secured
Party, any right, power or privilege hereunder shall operate as a waiver thereof. No single or
partial exercise of any right, power or privilege hereunder shall preclude any other or further
exercise thereof or the exercise of any other right, power or privilege. A waiver by the
Administrative Agent or any other Secured Party of any right or remedy hereunder on any one
occasion shall not be construed as a bar to any right or remedy which the Administrative Agent or
such other Secured Party would otherwise have on any future occasion. The rights and remedies
herein provided are cumulative, may be exercised singly or concurrently and are not exclusive of
any other rights or remedies provided by law.
Β Β Β Β Β SectionΒ 7.4. Enforcement Expenses, Indemnification.
Β Β Β Β Β (a)Β Each Grantor agrees to pay or reimburse each Secured Party and the Administrative Agent
for all its reasonable costs and expenses incurred in connection with enforcing or preserving any
rights under this Agreement, the other Loan Documents and the Secured Hedging Agreements to which
such Grantor is a party (including, without limitation, in connection with any workout,
restructuring,
bankruptcy or other similar proceeding and the reasonable fees and disbursements of counsel to
each Secured Party and of counsel to the Administrative Agent).
Β Β Β Β Β (b)Β Each Grantor agrees to pay, and to save the Administrative Agent and the other Secured
Parties harmless from, any and all liabilities with respect to, or resulting from any delay in
paying, any and all stamp, excise, sales or other taxes (in each case, subject to SectionΒ 2.16 of
the Credit Agreement) which may be payable or determined to be payable with respect to any of the
Collateral or in connection with any of the transactions contemplated by this Agreement.
Β Β Β Β Β (c)Β Each Grantor agrees to pay, and to save the Administrative Agent and the other Secured
Parties harmless from any and all liabilities, obligations, losses, damages, penalties, costs and
expenses in connection with actions, judgments, suits, costs, expenses or disbursements of any kind
or nature whatsoever with respect to the execution, delivery, enforcement, performance and
administration of this Agreement to the extent any Grantor would be required to do so pursuant to
SectionΒ 9.03 of the Credit Agreement.
Β Β Β Β Β (d)Β The agreements in this SectionΒ 7.4 shall survive termination of the Commitments, repayment
of the Obligations, termination of the Letters of Credit and repayment of the LC Disbursements, and
all other amounts payable under the Credit Agreement, the other Loan Documents and the Secured
Hedging Agreements.
Β Β Β Β Β SectionΒ 7.5. Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT
OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY
OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A)Β CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (B)Β ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO
ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS
AND CERTIFICATIONS IN THIS SECTION.
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Β Β Β Β Β SectionΒ 7.6. Successors and Assigns. This Agreement shall be binding upon the successors and assigns of each Grantor and shall inure
to the benefit of each Grantor (and shall bind all Persons who become bound as a Grantor to this
Collateral Agreement), the Administrative Agent and the other Secured Parties and their successors
and assigns; provided that no Grantor may assign, transfer or delegate any of its rights or
obligations under this Agreement without the prior written consent of the Administrative Agent
(given in accordance with SectionΒ 7.1).
Β Β Β Β Β SectionΒ 7.7. Set-Off. Each Grantor hereby irrevocably authorizes the Administrative Agent and each other Secured Party
at any time and from time to time pursuant to SectionΒ 9.08 of the Credit Agreement, without notice
to such Grantor or any other Grantor, any such notice being expressly waived by each Grantor, to
set-off and appropriate and apply any and all deposits (general or special, time or demand,
provisional or final), in
any currency, and any other credits, indebtedness or claims, in any currency, in each case whether
direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by the
Administrative Agent or such other Secured Party to or for the credit or the account of such
Grantor, or any part thereof in such amounts as the Administrative Agent or such other Secured
Party may elect, against and on account of the obligations and liabilities of such Grantor to the
Administrative Agent or such other Secured Party hereunder and claims of every nature and
description of the Administrative Agent or such other Secured Party against such Grantor, in any
currency, whether arising hereunder, under the Credit Agreement, any other Loan Document, any
Secured Hedging Agreement or otherwise, as the Administrative Agent or such other Secured Party may
elect, whether or not the Administrative Agent or any other Secured Party has made any demand for
payment and although such obligations, liabilities and claims may be contingent or unmatured. The
Administrative Agent and each other Secured Party shall notify such Grantor promptly of any such
set-off and the application made by the Administrative Agent or such other Secured Party of the
proceeds thereof; provided that the failure to give such notice shall not affect the
validity of such set-off and application. The rights of the Administrative Agent and each other
Secured Party under this SectionΒ 7.7 are in addition to other rights and remedies (including,
without limitation, other rights of set-off) which the Administrative Agent or such other Secured
Party may have.
Β Β Β Β Β SectionΒ 7.8. Counterparts. This Agreement may be executed by one or more of the parties to this Agreement on any number of
separate counterparts (including by telecopy or by electronic transmission), and all of said
counterparts taken together shall be deemed to constitute one and the same instrument.
Β Β Β Β Β SectionΒ 7.9. Severability. Any provision of this Agreement or any other Loan Agreement which is prohibited or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective only to the extent of such
prohibition or unenforceability without invalidating the remainder of such provision or the
remaining provisions hereof or thereof or affecting the validity or enforceability of such
provision in any other jurisdiction.
Β Β Β Β Β SectionΒ 7.10. SectionΒ Heading. The Section headings used in this Agreement are for convenience of reference only and are not to
affect the construction hereof or be taken into consideration in the interpretation hereof.
Β Β Β Β Β SectionΒ 7.11. Integration. This Agreement, the other Loan Documents and the Secured Hedging Agreements represent the
agreement of the Grantors, the Administrative Agent and the other Secured Parties with respect to
the subject matter hereof and thereof, and there are no promises, undertakings, representations or
warranties by the Administrative Agent or any other Secured Party relative to subject matter hereof
and thereof not expressly set forth or referred to herein or in the other Loan Documents or Secured
Hedging Agreements.
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Β Β Β Β Β SectionΒ 7.12. Governing Law. This Agreement shall be governed by, construed and enforced in accordance with the laws of the
State of New York (including SectionΒ 5-1401 and SectionΒ 5-1402 of the General Obligations Law of
the State of New York), without regard to the conflicts of law provisions of such state.
Β Β Β Β Β SectionΒ 7.13. Consent to Jurisdiction and Venue.
Β Β Β Β Β (a)Β Each Grantor hereby irrevocably and unconditionally submits, for itself and its property,
to the nonexclusive jurisdiction of the Supreme Court of the State of New York sitting in New York
County and of the United States District Court of the Southern District of New York, and any
appellate court from any thereof, in any action or proceeding arising out of or relating to this
Agreement, or for recognition or enforcement of any judgment, and each of the parties hereto hereby
irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding
may be heard and determined in such New York State court or, to the fullest extent permitted by
applicable law, in such Federal court. Each of the parties hereto agrees that a final judgment in
any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law. Nothing in this Agreement shall
affect any right that any Secured Party may otherwise have to bring any action or proceeding
relating to this Agreement against any Grantor or its properties in the courts of any jurisdiction.
Β Β Β Β Β (b)Β Each Grantor hereby irrevocably and unconditionally waives, to the fullest extent
permitted by applicable law, any objection that it may now or hereafter have to the laying of venue
of any suit, action or proceeding arising out of or relating to this Agreement in any court
referred to in paragraph (a)Β of this Section. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by applicable law, the defense of an inconvenient forum to
the maintenance of such action or proceeding in any such court.
Β Β Β Β Β (c)Β Each party to this Agreement irrevocably consents to service of process in the manner
provided for notices in SectionΒ 7.02. Nothing in this Agreement will affect the right of any party
to this Agreement to serve process in any other manner permitted by applicable law.
Β Β Β Β Β SectionΒ 7.14. Acknowledgements.
Β Β Β Β Β (a)Β Each Grantor hereby acknowledges that: (i)Β it has been advised by counsel in the
negotiation, execution and delivery of this Agreement and the other Loan Documents and Secured
Hedging Agreements to which it is a party, (ii)Β neither the Administrative Agent nor any other
Secured Party has any fiduciary relationship with or duty to any Grantor arising out of or in
connection with this Agreement, any of the other Loan Documents or any of the Secured Hedging
Agreements, and the relationship among the Grantors, on the one hand, and the Administrative Agent
and the other Secured Parties, on the other hand, in connection herewith or therewith is solely
that of debtor and creditor, and (iii)Β no joint venture is created hereby or by the other Loan
Documents or Secured Hedging Agreements or otherwise exists by virtue of the transactions
contemplated hereby or thereby among the Secured Parties or among the Grantors and the Secured
Parties.
Β Β Β Β Β (b)Β Each Issuer party to this Agreement acknowledges receipt of a copy of this Agreement and
agrees to be bound thereby and to comply with the terms thereof insofar as such terms are
applicable to it. Each Issuer agrees to provide such notices to the Administrative Agent as may be
necessary to give full effect to the provisions of this Agreement.
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Β Β Β Β Β SectionΒ 7.15. Additional Grantors. Each Subsidiary of the Borrower that is required to become a party to this Agreement pursuant to
SectionΒ 5.09 of the Credit Agreement shall become a Grantor for all purposes of this Agreement upon
execution and delivery by such Subsidiary of a Joinder Agreement.
Β Β Β Β Β SectionΒ 7.16. Releases.
Β Β Β Β Β (a)Β At such time as the Obligations (excluding Obligations not yet due and payable under the
Secured Hedging Agreements that have not been terminated) shall have been paid in full, the
Commitments shall have been terminated and all Letters of Credit shall have been terminated, the
Collateral shall be released from the Liens created hereby, and this Agreement and all obligations
(other than those expressly stated to survive such termination) of the Administrative Agent and
each Grantor hereunder shall terminate, all without delivery of any instrument or performance of
any act by any party, and all rights to the Collateral shall revert to the Grantors. At the
request and sole expense of any Grantor following any such termination, the Administrative Agent
shall deliver to such Grantor any Collateral held by the Administrative Agent hereunder, and
execute and deliver to such Grantor such documents as such Grantor shall reasonably request to
evidence such termination.
Β Β Β Β Β (b)Β If any of the Collateral shall be sold, transferred or otherwise disposed of by any
Grantor in a transaction permitted by the Credit Agreement, then the Administrative Agent, at the
request and sole expense of such Grantor, shall execute and deliver to such Grantor all releases or
other documents reasonably necessary or desirable for the release of the Liens created hereby on
such Collateral. In the event that all the capital stock of any Grantor shall be sold, transferred
or otherwise disposed of in its entirety in a transaction permitted by the Credit Agreement, then,
at the request of the Borrower and at the expense of the Grantors, such Grantor shall be released
from its obligations hereunder; provided that the Borrower shall have delivered to the
Administrative Agent, at least ten (10)Β Business Days prior to the date of the proposed release, a
written request for release identifying the relevant Grantor and the terms of the sale or other
disposition in reasonable detail, including the price thereof and any expenses in connection
therewith, together with a certification by the Borrower stating that such transaction is in
compliance with the Credit Agreement, the other Loan Documents and the Secured Hedging Agreements.
[Signature Pages to Follow]
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Β Β Β Β Β IN WITNESS WHEREOF, the parties hereto have caused this Collateral Agreement to be executed
under seal by their duly authorized officers, all as of the day and year first written above.
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THE GEO GROUP, INC., as a Grantor
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By:Β Β |
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Name:Β Β |
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Title:Β Β |
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CORRECTIONAL SERVICES CORPORATION, as a Grantor and
as an Issuer
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By:Β Β |
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Name:Β Β |
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Title:Β Β |
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GEO ACQUISITION II, INC., as a Grantor and as an
Issuer
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By:Β Β |
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Name:Β Β |
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Title:Β Β |
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GEO CARE, INC., as a Grantor and an Issuer
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By:Β Β |
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Name:Β Β |
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Title:Β Β |
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GEO DESIGN SERVICES, INC., as an Issuer
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By:Β Β |
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Name:Β Β |
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Title:Β Β |
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WCC DEVELOPMENT, INC., as an Issuer
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By:Β Β |
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Name:Β Β |
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Title:Β Β |
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Collateral Agreement
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WCC FINANCIAL, INC., as an Issuer
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By:Β Β |
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Name:Β Β |
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Title:Β Β |
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GEO INTERNATIONAL HOLDINGS, INC, as an Issuer
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Name:Β Β |
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Title:Β Β |
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GEO RE HOLDINGS LLC, as a Grantor and an Issuer
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By:Β Β |
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GEO HOLDINGS I, INC., as a Grantor and an Issuer
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PREMIER CUSTODIAL DEVELOPMENT LTD., as an Issuer
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WACKENHUT CORRECTIONS PUERTO RICO,
INC., as an Issuer
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Collateral Agreement
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WCC/FL/01, INC., as an Issuer
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WCC/FL/02, INC., as an Issuer
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GEO ACQUISITION III, INC., as a Grantor and an Issuer
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GEO TRANSPORT, INC., as a Grantor and an Issuer
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JUST CARE, INC., as a Grantor and an Issuer
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CPT OPERATING PARTNERSHIP L.P. , as a Grantor and an
Issuer
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Collateral Agreement
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CPT LIMITED PARTNER, LLC, as a Grantor and an Issuer
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CORRECTIONAL PROPERTIES PRISON FINANCE LLC, as a
Grantor and an Issuer
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PUBLIC PROPERTIES DEVELOPMENT AND LEASING LLC, as a
Grantor and an Issuer
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Collateral Agreement
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BNP PARIBAS,
as Administrative Agent,
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lateral Agreement
31
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EXHIBIT C
to
Credit Agreement
dated as of AugustΒ 4, 2010
by and among
The GEO Group, Inc.,
as Borrower,
the lenders party thereto,
as Lenders,
and
BNP Paribas,
as Administrative Agent
FORM OF GUARANTY AGREEMENT
Β
Β
EXECUTION COPY
GUARANTY AGREEMENT
Β Β Β Β Β Β Β Β Β Β GUARANTY AGREEMENT (as amended, restated, supplemented or otherwise modified, this
βGuarantyβ), dated as of AugustΒ 4, 2010, is made by THE GEO GROUP, INC., a Florida
corporation (the βBorrowerβ), certain subsidiaries of the Borrower identified under the
caption βSUBSIDIARY GUARANTORSβ on the signature pages hereto (collectively, the
βGuarantorsβ and, together with the Borrower, the βObligorsβ), in favor of BNP
PARIBAS, as Administrative Agent (the βAdministrative Agentβ), for the ratable benefit of
itself and the other Secured Parties.
STATEMENT OF PURPOSE
Β Β Β Β Β Β Β Β Β Β Pursuant to the terms of the Credit Agreement of even date herewith (as amended, restated,
supplemented or otherwise modified, the βCredit Agreementβ), by and among the Borrower, the
financial institutions (the βLendersβ) from time to time parties thereto and the
Administrative Agent, the Lenders have agreed to make extensions of credit to the Borrower upon the
terms and subject to the conditions set forth therein. In addition, the Borrower and the
Restricted Subsidiaries may from time to time be obligated to the Hedge Counterparties in respect
of one or more Hedging Agreements (such Hedging Agreements being referred to herein as βSecured
Hedging Agreementsβ).
Β Β Β Β Β Β Β Β Β Β The Obligors, though separate legal entities, comprise one integrated financial enterprise,
and all extensions of credit to the Obligors under the Credit Agreement and all Secured Hedging
Agreements will inure, directly or indirectly, to the benefit of each of the Obligors.
Β Β Β Β Β Β Β Β Β Β It is a condition precedent to the obligation of the Lenders to make their respective
extensions of credit to the Borrower under the Credit Agreement that the Obligors shall have
executed and delivered this Guaranty to the Administrative Agent, for the ratable benefit of itself
and the other Secured Parties.
Β Β Β Β Β Β Β Β Β Β For good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by the parties hereto, and to induce the Administrative Agent and the Lenders to enter
into the Credit Agreement and to induce the Lenders to make their respective extensions of credit
thereunder and to induce the Hedge Counterparties to enter into the Secured Hedging Agreements, the
Obligors have agreed to guarantee the Obligations.
Β Β Β Β Β Β Β Β Β Β Accordingly, the parties hereto agree as follows:
Β Β Β Β Β SECTION 1. Definitions.
Β Β Β Β Β (a)Β The following terms when used in this Guaranty shall have the meanings assigned to them
below:
Β Β Β Β Β Β Β Β Β Β βAdditional Obligorβ means each Domestic Subsidiary of the Borrower which hereafter
becomes a Guarantor and an Obligor pursuant to SectionΒ 28 hereof and SectionΒ 5.09 of the Credit
Agreement.
Β Β Β Β Β Β Β Β Β Β βApplicable Insolvency Lawsβ means all Applicable Laws governing bankruptcy,
reorganization, arrangement, adjustment of debts, relief of debtors, dissolution, insolvency,
fraudulent transfers or conveyances or other similar laws (including, without limitation, 11 U.S.C.
SectionsΒ 547, 548 and 550 and other βavoidanceβ provisions of Title 11 of the United States Code).
Β
Β
Β Β Β Β Β Β Β Β Β Β βApplicable Lawsβ means all applicable provisions of constitutions, laws, statutes,
ordinances, rules, treaties, regulations, permits, licenses, approvals, interpretations and orders
of courts or Governmental Authorities and all orders and decrees of all courts and arbitrators.
Β Β Β Β Β Β Β Β Β Β βCollateralβ means the collateral security for the Obligations pledged or granted
pursuant to the Security Documents.
Β Β Β Β Β Β Β Β Β Β βGuaranteed Obligationsβ has the meaning set forth in Section 2(a) hereof.
Β Β Β Β Β (b)Β Capitalized terms used and not otherwise defined in this Guaranty including the preambles
and Statements of Purpose hereof shall have the meanings ascribed to them in the Credit Agreement.
In the event of a conflict between capitalized terms defined herein and in the Credit Agreement,
the Credit Agreement shall control.
Β Β Β Β Β (c)Β The words βhereof,β βhereinβ, βheretoβ and βhereunderβ and words of similar import when
used in this Guaranty shall refer to this Guaranty as a whole and not to any particular provision
of this Guaranty, and Section references are to this Guaranty unless otherwise specified. The
meanings given to terms defined herein shall be equally applicable to both the singular and plural
forms of such terms. Where the context requires, terms relating to the Collateral or any part
thereof, when used in relation to a Obligor, shall refer to such Obligorβs Collateral or the
relevant part thereof.
Β Β Β Β Β SECTION 2. Guaranty of Obligations of Obligors.
Β Β Β Β Β (a)Β Nature of Guaranty. Each Obligor hereby, jointly and severally with the other
Obligors, unconditionally guarantees to the Administrative Agent for the ratable benefit of itself
and the other Secured Parties, and their respective permitted successors, endorsees, transferees
and assigns, the prompt payment and performance of all Obligations of the Obligors, whether primary
or secondary (whether by way of endorsement or otherwise), whether now existing or hereafter
arising, whether or not from time to time reduced or extinguished (except by payment thereof) or
hereafter increased or incurred, whether enforceable or unenforceable as against any of the
Obligors, whether or not discharged, stayed or otherwise affected by any Applicable Insolvency Law
or proceeding thereunder, whether created directly with the Administrative Agent or any other
Secured Party or acquired by the Administrative Agent or any other Secured Party through assignment
or endorsement, whether matured or unmatured, whether joint or several, as and when the same become
due and payable (whether at maturity or earlier, by reason of acceleration, mandatory repayment or
otherwise), in accordance with the terms of any such instruments evidencing any such obligations,
including all renewals, extensions or modifications thereof (all Obligations of the Obligors,
including all of the foregoing, being hereinafter collectively referred to as the βGuaranteed
Obligationsβ).
Β Β Β Β Β (b)Β General Limitation on Guaranteed Obligations. In any action or proceeding
involving any state corporate law, or any state or Federal bankruptcy, insolvency, reorganization
or other law affecting the rights of creditors generally, if the obligations of any Obligor under
Section 2(a) would otherwise, taking into account the provisions of SectionΒ 2(c), be held or
determined to be void, invalid or unenforceable, or subordinated to the claims of any other
creditors, on account of the amount of its liability under SectionΒ 2(a), then, notwithstanding any
other provision hereof to the contrary, the amount of such liability shall, without any further
action by such Obligor, any Secured Party or any other Person, be automatically limited and reduced
to the highest amount that is valid and enforceable and not subordinated to the claims of other
creditors as determined in such action or proceeding.
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Β
Β Β Β Β Β (c)Β Rights of Contribution. The Obligors hereby agree, as between themselves, that if
any Guarantor shall become an Excess Funding Guarantor (as defined below) by reason of the payment
by
such Guarantor of any Guaranteed Obligations, then each other Guarantor shall, on demand of
such Excess Funding Guarantor (but subject to the next sentence), pay to such Excess Funding
Guarantor an amount equal to such Guarantorβs Pro Rata Share (as defined below and determined, for
this purpose, without reference to the properties, debts and liabilities of such Excess Funding
Guarantor) of the Excess Payment (as defined below) in respect of such Guaranteed Obligations. The
payment obligation of a Guarantor to any Excess Funding Guarantor under this Section 2(c) shall be
subordinate and subject in right of payment to the prior payment in full of the obligations of such
Guarantor under the other provisions of this SectionΒ 2 and such Excess Funding Guarantor shall not
exercise any right or remedy with respect to such excess until payment and satisfaction in full of
all of such obligations.
Β Β Β Β Β For purposes of this SectionΒ 2(c), (i) βExcess Funding Guarantorβ means, in respect of
any Guaranteed Obligations, a Guarantor that has paid an amount in excess of its Pro Rata Share of
such Guaranteed Obligations, (ii) βExcess Paymentβ means, in respect of any Guaranteed
Obligations, the amount paid by an Excess Funding Guarantor in excess of its Pro Rata Share of such
Guaranteed Obligations and (iii) βPro Rata Shareβ means, for any Guarantor, the ratio
(expressed as a percentage) of (x)Β the amount by which the aggregate fair saleable value of all
properties of such Guarantor (excluding any shares of stock or other equity interest of any other
Guarantor) exceeds the amount of all the debts and liabilities of such Guarantor (including
contingent, subordinated, unmatured and unliquidated liabilities, but excluding the obligations of
such Guarantor hereunder and any obligations of any other Guarantor that have been Guaranteed by
such Guarantor) to (y)Β the amount by which the aggregate fair saleable value of all properties of
the Obligors exceeds the amount of all the debts and liabilities (including contingent,
subordinated, unmatured and unliquidated liabilities, but excluding the obligations of the Obligors
hereunder and under the other Loan Documents and Secured Hedging Agreements) of all of the
Guarantors, determined (A)Β with respect to any Guarantor that is a party hereto on the Effective
Date, as of the Effective Date, and (B)Β with respect to any other Guarantor, as of the date such
Guarantor becomes a Guarantor hereunder.
Β Β Β Β Β (d)Β Indemnity by Obligors. In addition to all such rights of indemnity and
subrogation as the Guarantors may have under applicable law (but subject to SectionΒ 2(e)), each
Obligor agrees that (i)Β in the event a payment shall be made by any Guarantor under this Agreement
to satisfy in whole or in part the Guaranteed Obligation of any Obligor, such Obligor shall
indemnify such Guarantor for the full amount of such payment and such Guarantor shall be subrogated
to the rights of the Person to whom such payment shall have been made to the extent of such payment
and (ii)Β in the event any assets of any Guarantor shall be sold pursuant to this Agreement or any
other Security Document to satisfy in whole or in part the Guaranteed Obligations of any Obligor,
such Obligor shall indemnify such Guarantor in an amount equal to the greater of the book value or
the fair market value of the assets so sold.
Β Β Β Β Β (e)Β Subrogation. The Guarantors hereby jointly and severally agree that until the
payment and performance, in full, of the Guaranteed Obligations, the termination of the
Commitments, the Letters of Credit and the Secured Hedging Agreements they shall not exercise any
right or remedy arising by reason of any performance by them of their guarantee in SectionΒ 2(a),
whether by subrogation or otherwise, against any Obligor or any other guarantor of any of the
Guaranteed Obligations or any security for any of the Guaranteed Obligations.
Β Β Β Β Β SECTION 3. Taxes.
Β Β Β Β Β (a)Β Each Obligor agrees to pay, and to save the Administrative Agent and the other Secured
Parties harmless from, any and all liabilities with respect to, or resulting from any delay in
paying, any and all stamp, excise, sales or other taxes which may be payable or determined to be
payable with respect to any of the Collateral or in connection with any of the transactions
contemplated by this Guaranty.
3
Β
Β Β Β Β Β (b)Β Each Obligor agrees to pay, and to save the Administrative Agent and the other Secured
Parties harmless from any and all liabilities, obligations, losses, damages, penalties, costs and
expenses in connection with actions, judgments, suits, costs, expenses or disbursements of any kind
or nature whatsoever with respect to the execution, delivery, enforcement, performance and
administration of this Guaranty to the extent the Borrower would be required to do so pursuant to
SectionΒ 9.03 of the Credit Agreement.
Β Β Β Β Β (c)Β The agreements in this SectionΒ 3 shall survive the termination of the Commitments, the
Letters of Credit and the Secured Hedging Agreements and the repayment of the Guaranteed
Obligations and all other amounts payable under the Credit Agreement and the other Loan Documents.
Β Β Β Β Β SECTION 4. Nature of Guaranty.
Β Β Β Β Β (a)Β Each Obligor agrees that this Guaranty is a continuing, unconditional guaranty of payment
and performance and not of collection, and that its obligations under this Guaranty shall be
primary, absolute and unconditional, irrespective of, and unaffected by:
Β Β Β Β Β (i) the genuineness, validity, regularity, enforceability or any future amendment of,
or change in, the Credit Agreement, any other Loan Document or any Secured Hedging Agreement
or any other agreement, document or instrument to which the Borrower or any Subsidiary
thereof is or may become a party;
Β Β Β Β Β (ii) the absence of any action to enforce this Guaranty, the Credit Agreement, any
other Loan Document or any Secured Hedging Agreement or the waiver or consent by the
Administrative Agent or any other Secured Party with respect to any of the provisions of
this Guaranty, the Credit Agreement, any other Loan Document or any Secured Hedging
Agreement;
Β Β Β Β Β (iii) the existence, value or condition of, or failure to perfect its Lien against, any
security for or other guaranty of the Guaranteed Obligations or any action, or the absence
of any action, by the Administrative Agent or any other Secured Party in respect of such
security or guaranty (including, without limitation, the release of any such security or
guaranty); or
Β Β Β Β Β (iv) any other action or circumstances which might otherwise constitute a legal or
equitable discharge or defense of a surety or guarantor; it being agreed by each Obligor
that, subject to the first sentence in Section 2(b) hereof, its obligations under this
Guaranty shall not be discharged until the final indefeasible payment and performance, in
full, of the Guaranteed Obligations, the termination of the Commitments, the Letters of
Credit and the Secured Hedging Agreements and the payment in full of all LC Disbursements.
Β Β Β Β Β (b)Β Each Obligor represents, warrants and agrees that its obligations under this Guaranty are
not and shall not be subject to any counterclaims, offsets or defenses of any kind against the
Administrative Agent, the other Secured Parties, the Borrower or the other Obligors whether now
existing or which may arise in the future.
Β Β Β Β Β (c)Β Each Obligor hereby agrees and acknowledges that the Guaranteed Obligations, and any of
them, shall conclusively be deemed to have been created, contracted or incurred, or renewed,
extended, amended or waived, in reliance upon this Guaranty, and all dealings between the Borrower
and any of the other Obligors, on the one hand, and the Administrative Agent and the other Secured
Parties, on the other hand, likewise shall be conclusively presumed to have been had or consummated
in reliance upon this Guaranty.
4
Β
Β Β Β Β Β SECTION 5. Waivers. To the extent permitted by law, each Obligor expressly waives all
of the following rights and defenses (and agrees not to take advantage of or assert any such right
or defense):
Β Β Β Β Β (a)Β any rights it may now or in the future have under any statute, or at law or in equity, or
otherwise, to compel the Administrative Agent or any other Secured Party to proceed in respect of
the Guaranteed Obligations against the Borrower, any other Obligor or any other party or against
any security for or other guaranty of the payment and performance of the Guaranteed Obligations
before proceeding against, or as a condition to proceeding against, such Obligor;
Β Β Β Β Β (b)Β any defense based upon the failure of the Administrative Agent or any other Secured Party
to commence an action in respect of the Guaranteed Obligations against the Borrower, such Obligor,
any other guarantor or any other party or any security for the payment and performance of the
Guaranteed Obligations;
Β Β Β Β Β (c)Β any right to insist upon, plead or in any manner whatever claim or take the benefit or
advantage of, any appraisal, valuation, stay, extension, marshalling of assets or redemption laws,
or exemption, whether now or at any time hereafter in force, which may delay, prevent or otherwise
affect the performance by such Obligor of its obligations under, or the enforcement by the
Administrative Agent or the other Secured Parties of, this Guaranty;
Β Β Β Β Β (d)Β any right of diligence, presentment, demand, protest and notice (except as specifically
required herein) of whatever kind or nature with respect to any of the Guaranteed Obligations and
waives, to the extent permitted by Applicable Laws, the benefit of all provisions of law which are
or might be in conflict with the terms of this Guaranty; and
Β Β Β Β Β (e)Β any and all right to notice of the creation, renewal, extension, or accrual of any of the
Guaranteed Obligations and notice of or proof of reliance by the Administrative Agent or any other
Secured Party upon, or acceptance of, this Guaranty.
Each Obligor agrees that any notice or directive given at any time to the Administrative Agent or
any other Secured Party which is inconsistent with any of the foregoing waivers shall be null and
void and may be ignored by the Administrative Agent or such other Secured Party, and, in addition,
may not be pleaded or introduced as evidence in any litigation relating to this Guaranty for the
reason that such pleading or introduction would be at variance with the written terms of this
Guaranty, unless the Administrative Agent and the Required Lenders have specifically agreed
otherwise in writing. The foregoing waivers are of the essence of the transaction contemplated by
the Credit Agreement, the other Loan Documents and the Secured Hedging Agreements and, but for this
Guaranty and such waivers, the Administrative Agent and the other Secured Parties would decline to
enter into the Credit Agreement, the other Loan Documents and the Secured Hedging Agreements.
Β Β Β Β Β SECTION 6. Modification of Loan Documents etc. Neither the Administrative Agent nor
any other Secured Party shall incur any liability to any Obligor as a result of any of the
following, and none of the following shall impair or release this Guaranty or any of the
obligations of any Obligor under this Guaranty:
Β Β Β Β Β (a)Β any change or extension of the manner, place or terms of payment of, or renewal or
alteration of all or any portion of, the Guaranteed Obligations;
Β Β Β Β Β (b)Β any action under or in respect of the Credit Agreement, the other Loan Documents or any
Secured Hedging Agreement in the exercise of any remedy, power or privilege contained therein or
available to any of them at law, in equity or otherwise, or waiver or refrain from exercising
any such remedies, powers or privileges;
5
Β
Β Β Β Β Β (c)Β any amendment or modification, in any manner whatsoever, of the Credit Agreement, the
other Loan Documents or any Secured Hedging Agreement;
Β Β Β Β Β (d)Β any extension or waiver of the time for performance by the Borrower, any other Obligor or
any other Person of, or compliance with, any term, covenant or agreement on its part to be
performed or observed under the Credit Agreement, any other Loan Document or any Secured Hedging
Agreement, or waiver of such performance or compliance or consent to a failure of, or departure
from, such performance or compliance;
Β Β Β Β Β (e)Β any taking and holding security or collateral for the payment of the Guaranteed
Obligations or any sale, exchange, release, disposal of, or other dealing with, any property
pledged, mortgaged or conveyed, or in which the Administrative Agent or any other Secured Party has
been granted a Lien, to secure any Indebtedness of the Borrower, any other Obligor or any other
Person to the Administrative Agent or the other Secured Parties;
Β Β Β Β Β (f)Β any release of anyone who may be liable in any manner for the payment of any amounts owed
by the Borrower, any other Obligor or any other Person to the Administrative Agent or any other
Secured Party;
Β Β Β Β Β (g)Β any modification or termination of the terms of any intercreditor or subordination
agreement pursuant to which claims of other creditors of the Borrower, any other Obligor or any
other Person are subordinated to the claims of the Administrative Agent or any other Secured Party;
or
Β Β Β Β Β (h)Β any application of any sums by whomever paid or however realized to any amounts owing by
the Borrower, any other Obligor or any other Person to the Administrative Agent or any other
Secured Party on account of the Guaranteed Obligations in such manner as the Administrative Agent
or any other Secured Party shall determine in its reasonable discretion.
Β Β Β Β Β SECTION 7. Demand by the Administrative Agent. In addition to the terms set forth in
SectionΒ 2, and in no manner imposing any limitation on such terms, if all or any portion of the
then outstanding Guaranteed Obligations are declared to be immediately due and payable, then the
Obligors shall, upon demand in writing therefor by the Administrative Agent to the Obligors, pay
all or such portion of the outstanding Guaranteed Obligations then declared due and payable.
Notwithstanding the foregoing, each Obligor agrees that, in the event of the dissolution or
insolvency of the Borrower or any other Obligor, or the inability or failure of the Borrower or any
other Obligor to pay debts as they become due, or an assignment by the Borrower or any other
Obligor for the benefit of creditors, or the commencement of any case or proceeding in respect of
the Borrower or any other Obligor under bankruptcy, insolvency or similar laws, and if such event
shall occur at a time when any of the Guaranteed Obligations may not then be due and payable, each
Obligor will pay to the Administrative Agent, for the ratable benefit of the Secured Parties and
their respective successors, indorsees, transferees and assigns, forthwith the full amount which
would be payable hereunder by each Obligor if all such Guaranteed Obligations were then due and
payable.
Β Β Β Β Β SECTION 8. Remedies. Upon the occurrence and during the continuance of any Event of
Default, with the consent of the Required Lenders, the Administrative Agent may, or upon the
request of the Required Lenders, the Administrative Agent shall, enforce against the Obligors their
respective obligations and liabilities hereunder and exercise such other rights and remedies as may
be available to the Administrative Agent hereunder, under the Loan Documents or otherwise.
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Β Β Β Β Β SECTION 9. Benefits of Guaranty. The provisions of this Guaranty are for the benefit
of the Administrative Agent, the Lenders and the other Secured Parties and their respective
permitted successors, transferees, endorsees and assigns, and nothing herein contained shall
impair, as between the Borrower, the Administrative Agent, the Lenders and the other Secured
Parties, the obligations of the Borrower under the Loan Documents and the obligations of the
Obligors under the Secured Hedging Agreements. In the event all or any part of the Guaranteed
Obligations are transferred, endorsed or assigned by the Administrative Agent, any Lender or any
other Secured Party to any Person or Persons as permitted under the Credit Agreement, any reference
to an βAdministrative Agentβ, βLenderβ or βSecured Partyβ herein shall be deemed to refer equally
to such Person or Persons.
Β Β Β Β Β SECTION 10. Termination.
Β Β Β Β Β (a)Β Subject to clause (c)Β below, this Guaranty shall remain in full force and effect until all
the Guaranteed Obligations and all the Obligations (excluding Obligations not yet due and payable
under the Secured Hedging Agreements that have not been terminated) of the Obligors shall have been
paid in full, the Commitments shall have been terminated and all Letters of Credit shall have been
terminated.
Β Β Β Β Β (b)Β No payment made by the Borrower, any other Obligor or any other Person received or
collected by the Administrative Agent or any other Secured Party from the Borrower, any other
Obligor or any other Person by virtue of any action or proceeding or any set-off or appropriation
or application at any time or from time to time in reduction of or in payment of the Guaranteed
Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of any
Obligor hereunder which shall, notwithstanding any such payment (other than any payment made by
such Obligor in respect of the obligations of the Obligors hereunder or any payment received or
collected from such Obligor in respect of the obligations of the Obligors hereunder), remain liable
for the obligations of the Obligors up to the maximum liability of such Obligor hereunder until the
Guaranteed Obligations and all the Obligations of the Obligors shall have been paid in full, all of
the Commitments shall have been terminated, all Letters of Credit shall have been terminated and
all LC Disbursements shall have been paid in full.
Β Β Β Β Β (c)Β Each Obligor agrees that, if any payment made by the Borrower, any other Obligor or any
other Person applied to the Obligations is at any time annulled, set aside, rescinded, invalidated,
declared to be fraudulent or preferential or otherwise required to be refunded or repaid or the
proceeds of any Collateral are required to be refunded by the Administrative Agent or any other
Secured Party to the Borrower, its estate, trustee, receiver or any other party, including, without
limitation, any Obligor, under any Applicable Law or equitable cause, then, to the extent of such
payment or repayment, each Obligorβs liability hereunder (and any Lien securing such liability)
shall be and remain in full force and effect, as fully as if such payment had never been made, and,
if prior thereto, this Guaranty shall have been canceled or surrendered (and if any Lien or
Collateral securing such Obligorβs liability hereunder shall have been released or terminated by
virtue of such cancellation or surrender), this Guaranty (and such Lien) shall be reinstated in
full force and effect, and such prior cancellation or surrender shall not diminish, release,
discharge, impair or otherwise affect the obligations of such Obligor in respect of the amount of
such payment (or any Lien or Collateral securing such obligation).
Β Β Β Β Β SECTION 11. Payments. Payments by the Obligors shall be made to the Administrative
Agent, to be credited and applied upon the Guaranteed Obligations, in immediately available funds
(in the same currency as the relevant Guaranteed Obligations) to an account designated by the
Administrative Agent or at the office of the Administrative Agent specified in SectionΒ 9.01 of the
Credit Agreement or at any other address that may be specified in writing from time to time by the
Administrative Agent.
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Β Β Β Β Β SECTION 12. Representations and Warranties. Each Obligor hereby represents and
warrants to the Secured Parties and the Administrative Agent for the benefit of the Secured Parties
that:
Β Β Β Β Β (a)Β each Obligor is duly organized, validly existing and in good standing (or its equivalent)
under the laws of the jurisdiction of its incorporation or formation, has the requisite corporate,
limited liability company or other organizational power and authority to own, lease and operate its
properties and to carry on its business as now being and hereafter proposed to be conducted and is
duly qualified and authorized to do business in each jurisdiction in which the character of its
properties or the nature of its business requires such qualification and authorization other than
in such jurisdiction where failure to so qualify would not have a Material Adverse Effect;
Β Β Β Β Β (b)Β such Obligor has the right, power and authority to execute, deliver and perform this
Guaranty and has taken all necessary corporate, limited liability company or other organizational
action to authorize its execution, delivery and performance of this Guaranty;
Β Β Β Β Β (c)Β this Guaranty has been duly executed and delivered by the duly authorized officers of each
Obligor and constitutes the legal, valid and binding obligation of such Obligor enforceable in
accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of creditorsβ rights generally
and by the availability of equitable remedies;
Β Β Β Β Β (d)Β the execution, delivery and performance of this Guaranty will not violate any Applicable
Law or contractual obligation of such Obligor and will not result in the creation or imposition of
any Lien upon or with respect to any property or revenues of such Obligor;
Β Β Β Β Β (e)Β no consent or authorization of, filing with, or other act by or in respect of, any
arbitrator or Governmental Authority and no consent of any other Person (including, without
limitation, any stockholder or creditor of such Obligor), is required in connection with the
execution, delivery, performance, validity or enforceability of this Guaranty, except such
consents, authorizations or filings as may have been obtained or made on or before the Effective
Date (or such later date upon which such Obligor became a party hereto);
Β Β Β Β Β (f)Β as of the Effective Date (or such later date upon which such Obligor became a party
hereto), such Obligor (i)Β has capital sufficient to carry on its business and transactions and all
business and transactions in which it engages and is able to pay its debts as they mature, (ii)
owns property having a value, both at fair valuation on a going concern basis and at present fair
saleable value on a going concern basis, greater than the amount required to pay its probable
liabilities (including contingencies) and (iii)Β does not believe that it will incur debts or
liabilities beyond its ability to pay such debts or liabilities as they mature, subject in each
case to the first sentence of Section 2(b) hereof; and
Β Β Β Β Β (g)Β in executing and delivering this Guaranty, such Obligor has (i)Β without reliance on the
Administrative Agent or any other Secured Party, or any information received from the
Administrative Agent or any other Secured Party, and based upon such documents and information it
deems appropriate, made an independent investigation of the transactions contemplated hereby and of
the Borrower and each other Obligor, the Borrowerβs and each other Obligorβs business, assets,
operations, prospects and condition, financial or otherwise, and any circumstances which may bear
upon such transactions, the Borrower, any other Obligor or the obligations and risks undertaken
herein with respect to the Guaranteed Obligations; (ii)Β adequate means to obtain from the Borrower
and each other Obligor on a continuing basis information concerning the Borrower and such Obligor;
(iii)Β full and complete access to the Loan Documents, any other documents executed in connection
with the Loan Documents and the Secured Hedging Agreements; and (iv)Β not relied and will not rely
upon any representations or warranties of the Administrative Agent or any other Secured Party not
embodied herein or any acts heretofore or hereafter taken by the Administrative Agent or any other
Secured Party (including but not limited to any review by the Administrative Agent or any other
Secured Party of the affairs of the Borrower or any other Obligor).
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Β Β Β Β Β SECTION 13. Amendments. The terms and provisions of this Guaranty may be amended,
waived or otherwise modified only by an instrument in writing duly executed by each Obligor and the
Administrative Agent (with the consent of Lenders, to the extent required by SectionΒ 9.02 of the
Credit Agreement). Any such amendment or waiver shall be binding upon the Secured Parties and the
Obligors.
Β Β Β Β Β SECTION 14. Notices. All notices and communications hereunder shall be given to the
addresses and otherwise made in accordance with SectionΒ 9.01 of the Credit Agreement and shall be
deemed to have been given at the times specified in said SectionΒ 9.01; provided that
notices and communications to the Subsidiary Obligors shall be directed to the Subsidiary Obligors,
at the address of the Borrower set forth in SectionΒ 9.01 of the Credit Agreement.
Β Β Β Β Β SECTION 15. Enforcement Expenses, Indemnification.
Β Β Β Β Β (a)Β Each Obligor agrees to pay or reimburse each Secured Party and the Administrative Agent
for all its reasonable costs and expenses incurred in connection with enforcing or preserving any
rights under this Guaranty and the other Loan Documents to which such Obligor is a party,
including, without limitation, the reasonable fees and disbursements of counsel to each Secured
Party and of counsel to the Administrative Agent.
Β Β Β Β Β (b)Β Each Obligor agrees to pay, and to save the Administrative Agent and the other Secured
Parties harmless from, any and all liabilities with respect to, or resulting from any delay in
paying, any and all stamp, excise, sales or other non-income taxes which may be payable or
determined to be payable with respect to any of the Collateral or in connection with any of the
transactions contemplated by this Guaranty.
Β Β Β Β Β (c)Β Each Obligor agrees to pay, and to save the Administrative Agent and the other Secured
Parties harmless from any and all liabilities, obligations, losses, damages, penalties, costs and
expenses in connection with actions, judgments, suits, costs, expenses or disbursements of any kind
or nature whatsoever with respect to the execution, delivery, enforcement, performance and
administration of this Guaranty to the extent the Borrower would be required to do so pursuant to
SectionΒ 9.03 of the Credit Agreement.
Β Β Β Β Β (d)Β The agreements in this SectionΒ 15 shall survive the termination of the Commitments, the
Letters of Credit and the Secured Hedging Agreements and the repayment of the Guaranteed
Obligations and all other amounts payable under the Credit Agreement and the other Loan Documents.
Β Β Β Β Β SECTION 16. Governing Law. This Guaranty shall be governed by, construed and enforced
in accordance with the laws of the State of New York (including SectionΒ 5-1401 and SectionΒ 5-1402
of the General Obligations Law of the State of New York), without regard to the conflicts of law
provisions of such state.
Β Β Β Β Β SECTION 17. Consent to Jurisdiction and Venue.
Β Β Β Β Β (a)Β Each Obligor hereby irrevocably and unconditionally submits, for itself and its property,
to the nonexclusive jurisdiction of the Supreme Court of the State of New York sitting in New York
County and of the United States District Court of the Southern District of New York, and any
appellate court from any thereof, in any action or proceeding arising out of or relating to this
Guaranty, or for recognition or enforcement of any judgment, and each of the parties hereto hereby
irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding
may be heard and determined in such New York State court or, to the fullest extent permitted by
applicable law, in such Federal court. Each of the parties hereto agrees that a final judgment in
any such action or proceeding
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shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in
any other manner provided by law. Nothing in this Guaranty shall affect any right that any Secured
Party may otherwise have to bring any action or proceeding relating to this Guaranty against any
Obligor or its properties in the courts of any jurisdiction.
Β Β Β Β Β (b)Β Each Obligor hereby irrevocably and unconditionally waives, to the fullest extent
permitted by applicable law, any objection that it may now or hereafter have to the laying of venue
of any suit, action or proceeding arising out of or relating to this Guaranty in any court referred
to in paragraph (a)Β of this Section. Each of the parties hereto hereby irrevocably waives, to the
fullest extent permitted by applicable law, the defense of an inconvenient forum to the maintenance
of such action or proceeding in any such court.
Β Β Β Β Β (c)Β Each party to this Guaranty irrevocably consents to service of process in the manner
provided for notices in SectionΒ 14. Nothing in this Guaranty will affect the right of any party to
this Guaranty to serve process in any other manner permitted by applicable law.
Β Β Β Β Β SECTION 18. Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS GUARANTY OR THE TRANSACTIONS
CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A)
CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (B)Β ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO
ENTER INTO THIS GUARANTY BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION.
Β Β Β Β Β SECTION 19. No Waiver by Course of Conduct, Cumulative Remedies. Neither the
Administrative Agent nor any other Secured Party shall by any act (except by a written instrument
pursuant to SectionΒ 13), delay, indulgence, omission or otherwise be deemed to have waived any
right or remedy hereunder or to have acquiesced in any Default. No failure to exercise, nor any
delay in exercising on the part of the Administrative Agent or any other Secured Party, any right,
power or privilege hereunder shall operate as a waiver thereof. No single or partial exercise of
any right, power or privilege hereunder shall preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. A waiver by the Administrative Agent or any other
Secured Party of any right or remedy hereunder on any one occasion shall not be construed as a bar
to any right or remedy which the Administrative Agent or such other Secured Party would otherwise
have on any future occasion. The rights and remedies herein provided are cumulative, may be
exercised singly or concurrently and are not exclusive of any other rights or remedies provided by
law.
Β Β Β Β Β SECTION 20. Successors and Assigns. This Guaranty shall be binding upon the
successors and assigns of each Obligor and shall inure to the benefit of each Obligor (and shall
bind all Persons who become bound as a Obligor under this Guaranty), the Administrative Agent and
the other Secured Parties and their successors and assigns; provided that no Obligor may
assign, transfer or delegate any of its rights or obligations under this Guaranty without the prior
written consent of the Administrative Agent (with the consent of Lenders, to the extent required by
SectionΒ 9.02 of the Credit Agreement).
Β Β Β Β Β SECTION 21. Severability. If any provision hereof is invalid and unenforceable in any
jurisdiction, then, to the fullest extent permitted by law, (a)Β the other provisions hereof shall
remain in full force and effect in such jurisdiction and shall be construed in order to carry out
the intentions of the
parties hereto as nearly as may be possible; and (b)Β the invalidity or unenforceability of any
provisions hereof in any jurisdiction shall not affect the validity or enforceability of such
provision in any other jurisdiction.
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Β Β Β Β Β SECTION 22. Headings. The various headings of this Guaranty are inserted for
convenience only and shall not affect the meaning or interpretation of this Guaranty or any
provisions hereof.
Β Β Β Β Β SECTION 23. Counterparts. This Guaranty may be executed by the parties hereto in
several counterparts (including by telecopy), each of which shall be deemed to be an original and
all of which shall constitute together but one and the same agreement.
Β Β Β Β Β SECTION 24. Set-Off. Each Obligor hereby irrevocably authorizes the Administrative
Agent and each other Secured Party at any time and from time to time pursuant to SectionΒ 9.08 of
the Credit Agreement, without notice to such Obligor or any other Obligor, any such notice being
expressly waived by each Obligor, to set-off and appropriate and apply any and all deposits
(general or special, time or demand, provisional or final), in any currency, and any other credits,
indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or
contingent, matured or unmatured, at any time held or owing by the Administrative Agent or such
other Secured Party to or for the credit or the account of such Obligor, or any part thereof in
such amounts as the Administrative Agent or such other Secured Party may elect, against and on
account of the obligations and liabilities of such Obligor to the Administrative Agent or such
other Secured Party hereunder and claims of every nature and description of the Administrative
Agent or such other Secured Party against such Obligor, in any currency, whether arising hereunder,
under the Credit Agreement, any other Loan Document or otherwise, as the Administrative Agent or
such other Secured Party may elect, whether or not the Administrative Agent or any other Secured
Party has made any demand for payment and although such obligations, liabilities and claims may be
contingent or unmatured. The Administrative Agent and each other Secured Party shall notify such
Obligor promptly of any such set-off and the application made by the Administrative Agent or such
other Secured Party of the proceeds thereof; provided that the failure to give such notice
shall not affect the validity of such set-off and application. The rights of the Administrative
Agent and each other Secured Party under this SectionΒ 24 are in addition to other rights and
remedies (including, without limitation, other rights of set-off) which the Administrative Agent or
such other Secured Party may have.
Β Β Β Β Β SECTION 25. Integration. This Guaranty, the other Loan Documents and the Secured
Hedging Agreements represent the agreement of the Obligors, the Administrative Agent and the other
Secured Parties with respect to the subject matter hereof and thereof, and there are no promises,
undertakings, representations or warranties by the Administrative Agent or any other Secured Party
relative to subject matter hereof and thereof not expressly set forth or referred to herein, in the
other Loan Documents or in the Secured Hedging Agreements .
Β Β Β Β Β SECTION 26. Acknowledgements. Each Obligor hereby acknowledges that:
Β Β Β Β Β (a)Β it has been advised by counsel in the negotiation, execution and delivery of this Guaranty
and the other Loan Documents to which it is a party;
Β Β Β Β Β (b)Β neither the Administrative Agent nor any other Secured Party has any fiduciary
relationship with or duty to any Obligor arising out of or in connection with this Guaranty or any
of the other Loan Documents, and the relationship between the Obligors, on the one hand, and the
Administrative Agent and the other Secured Parties, on the other hand, in connection herewith or
therewith is solely that of debtor and creditor; and
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Β Β Β Β Β (c)Β no joint venture is created hereby or by the other Loan Documents or otherwise exists by
virtue of the transactions contemplated hereby among the Secured Parties or among the Obligors and
the Secured Parties.
Β Β Β Β Β SECTION 27. Powers Coupled with an Interest. All authorizations and agencies herein
contained with respect to the Collateral are irrevocable and are powers coupled with an interest.
Β Β Β Β Β SECTION 28. Additional Obligors. Each Subsidiary of the Borrower that is required to
become a party to this Guaranty pursuant to SectionΒ 5.09 of the Credit Agreement shall become a
Guarantor and an Obligor for all purposes of this Guaranty upon execution and delivery by such
Subsidiary of a supplement in form substantially in the form of ExhibitΒ A hereto.
Β Β Β Β Β SECTION 29. Releases. At such time as the Guaranteed Obligations and all the
Obligations (excluding Obligations not yet due and payable under the Secured Hedging Agreements
that have not been terminated) of the Obligors shall have been paid in full, the Commitments shall
have been terminated and all Letters of Credit shall have been terminated, this Guaranty and all
obligations (other than those expressly stated to survive such termination) of the Administrative
Agent and each Obligor hereunder shall terminate, all without delivery of any instrument or
performance of any act by any party.
[Signature Pages to Follow]
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Β Β Β Β Β IN WITNESS WHEREOF, each of the Obligors has executed and delivered this Guaranty under seal
by their duly authorized officers, all as of the day and year first above written.
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THE GEO GROUP, INC.
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SUBSIDIARY GUARANTORS
CORRECTIONAL SERVICES CORPORATION
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GEO ACQUISITION II, INC.
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GEO CARE, INC.
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GEO RE HOLDINGS LLC
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Guaranty Agreement
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GEO HOLDINGS I, INC.
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CPT OPERATING PARTNERSHIP L.P.
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CPT LIMITED PARTNER, LLC
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CORRECTIONAL PROPERTIES PRISON FINANCE LLC
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PUBLIC PROPERTIES DEVELOPMENT AND LEASING LLC
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GEO ACQUISITION III, INC.
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Guaranty Agreement
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GEO TRANSPORT, INC.
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JUST CARE, INC.
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Title:Β Β |
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Guaranty Agreement
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BNP PARIBAS,
as Administrative Agent,
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Name:Β Β |
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Guaranty Agreement
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EXHIBIT D
to
Credit Agreement
dated as of AugustΒ 4, 2010
by and among
The GEO Group, Inc.,
as Borrower,
the lenders party thereto,
as Lenders,
and
BNP Paribas,
as Administrative Agent
FORM OF COLLATERAL ASSIGNMENT
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EXECUTION COPY
COLLATERAL ASSIGNMENT AGREEMENT
dated as of AugustΒ 4, 2010
by and among
THE GEO GROUP, INC.
and certain of its Subsidiaries,
as Grantors,
in favor of
BNP PARIBAS,
as Administrative Agent
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COLLATERAL ASSIGNMENT AGREEMENT
Β Β Β Β Β This COLLATERAL ASSIGNMENT AGREEMENT (this βAssignmentβ), dated as of AugustΒ 4, 2010
by and among THE GEO GROUP, INC., a Florida corporation (the βBorrowerβ), certain
Subsidiaries of the Borrower as identified on the signature pages hereto (collectively, the
βSubsidiary Guarantorsβ) and each additional Subsidiary who becomes a party to this
Assignment pursuant to SectionΒ 13 hereof (each, an βAdditional Grantorβ and, together with
the Borrower and the Subsidiary Guarantors, the βGrantorsβ) in favor of BNP PARIBAS, as
administrative agent (the βAdministrative Agentβ) for the ratable benefit of the Secured
Parties.
STATEMENT OF PURPOSE
Β Β Β Β Β Pursuant to the Credit Agreement dated as of AugustΒ 4, 2010 (the βCredit Agreementβ),
by and among the Borrower, the financial institutions who are or may become a party thereto (the
βLendersβ) and the Administrative Agent, the Lenders have agreed to provide certain credit
facilities to the Borrower as more specifically described in the Credit Agreement. In addition,
the Borrower and the Restricted Subsidiaries may from time to time be obligated to the Hedge
Counterparties in respect of one or more Hedging Agreements (such Hedging Agreements being referred
to herein as βSecured Hedging Agreementsβ).
Β Β Β Β Β The Borrower and the Grantors, though separate legal entities, comprise one integrated
financial enterprise, and all extensions of credit to the Borrower under the Credit Agreement will
inure, directly or indirectly, to the benefit of each of the Grantors.
Β Β Β Β Β Each of the Grantors is party to the applicable agreements listed on ScheduleΒ A hereto (all of
which agreements, together with any and all renewals, extensions, amendments, restatements,
schedules, lease supplements and other supplements thereto, are collectively referred to in this
Assignment as the βAgreementsβ) with the other party or parties thereto (each, a
βCounterpartyβ).
Β Β Β Β Β In connection with the transactions contemplated by the Credit Agreement and as a condition
precedent thereto, the Administrative Agent and the Lenders have requested that the Grantors
execute this Assignment, and the Grantors have agreed to do so pursuant to the terms hereof.
Β Β Β Β Β NOW, THEREFORE, in consideration of the premises and to induce the Administrative Agent and
the Lenders to enter into and make available Loans pursuant to the Credit Agreement and to induce
the Hedge Counterparties to enter into the Secured Hedging Agreements, each of the Grantors hereby
agrees with the Administrative Agent for the ratable benefit of the Administrative Agent and the
other Secured Parties as follows:
Β Β Β Β Β SECTION 1. Defined Terms. Capitalized terms used and not otherwise defined in this
Assignment, including in the preambles and statement of purpose hereof, shall have the meaning
assigned in the Credit Agreement. In the event of a conflict between capitalized terms defined
herein and in the Credit Agreement, the Credit Agreement shall control.
Β Β Β Β Β SECTION 2. Assignment of Agreements. As collateral security for the payment and
performance of the Obligations, each of the Grantors hereby grants, collaterally assigns, transfers
and sets over to the Administrative Agent, for the ratable benefit of itself and the other Secured
Parties, a security interest in:
Β Β Β Β Β (a)Β all of such Grantorβs right, title and interest, powers, privileges and other benefits
under the Agreements, and the right to make all waivers and agreements, to give all notices,
consents and releases, to take all action upon the happening of any default giving rise to a right
in favor of such Grantor
under the Agreements, and to do any and all other things whatsoever which such Grantor is or
may become entitled to do under the Agreements; and
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Β Β Β Β Β (b)Β such Grantorβs renewal and extension options, if any, under the Agreements or any other
agreement to extend the term of the Agreements;
provided, that the security interest granted under this agreement shall not cover any
rights under any Agreement that contains a valid and enforceable prohibition on assignment of such
rights (except to the extent that any such prohibition would be rendered ineffective pursuant to
SectionΒ 9-406, 9-407, 9-408 or 9-409 of the UCC of any relevant jurisdiction or any other
applicable law or principles of equity), but only for so long as such prohibition exists and is
effective and valid.
Β Β Β Β Β SECTION 3. No Transfer of Agreements. This Assignment is executed as partial security
for the Obligations and, therefore, the execution and delivery of this Assignment shall not subject
the Administrative Agent or any other Secured Party to, or transfer or pass to the Administrative
Agent or any other Secured Party, or in any way affect or modify, the liability of any Grantor
under the Agreements, it being understood and agreed that, notwithstanding this Assignment or any
subsequent assignment, and subject to the provisions of SectionΒ 2 hereof, all of the obligations of
such Grantor to each Counterparty under the Agreements shall be and remain enforceable by such
other party, its successors and assigns, against, but only against, such Grantor and not the
Administrative Agent or the other Secured Parties or any of their successors and assigns.
Β Β Β Β Β SECTION 4. Representations and Warranties. Each of the Grantors represents and
warrants as follows:
Β Β Β Β Β (a)Β there are no other assignments or conveyances of any of such Grantorβs rights under the
Agreements to any other person or entity, and such Grantor will not grant any such assignment or
conveyance;
Β Β Β Β Β (b)Β such Grantor has not done any act or failed to do any act which might prevent the
Administrative Agent or any other Secured Party from, or limit the Administrative Agent or any
other Secured Party in, acting under any of the provisions contained herein;
Β Β Β Β Β (c)Β no default exists under the terms of the Agreements, and no prohibition exists in any
instrument or other agreement to which such Grantor is a party or by which such Grantor is
otherwise bound relating to such Grantorβs right to execute this Assignment and perform all of such
Grantorβs obligations contained herein;
Β Β Β Β Β (d)Β except as set forth on ScheduleΒ I hereto, to the extent required under the Agreements,
each Counterparty has consented to this Assignment, in form and substance satisfactory to the
Administrative Agent;
Β Β Β Β Β (e)Β the Agreements are valid and enforceable, and, except as disclosed in writing to the
Administrative Agent, have not been altered, modified or amended in any manner; and
Β Β Β Β Β (f)Β the material economic terms of the Agreements will not be modified, amended or otherwise
altered without the prior written consent of the Administrative Agent, which consent shall not be
unreasonably withheld, conditioned or delayed.
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Β Β Β Β Β SECTION 5. Remedies. So long as no Default has occurred and is continuing, each
Grantor shall perform all of its obligations, and receive all of the benefits accruing thereto,
under the Agreements,
except that such Grantor may not modify, terminate or waive the performance by any party under
the Agreements without the prior written consent of the Administrative Agent in any instance where
such consent is required under the provisions hereof. Upon the occurrence and continuance of any
Default, at the option of the Administrative Agent (and which option may be exercised independently
and from time to time with respect to each of the Agreements), such Grantorβs rights described
above will terminate with respect to the applicable Agreements, and the Administrative Agent shall
be entitled to (but shall not be required to):
Β Β Β Β Β (a)Β proceed to perform any and all obligations of such Grantor under the applicable Agreements
and exercise all rights of such Grantor thereunder as fully as such Grantor itself could;
Β Β Β Β Β (b)Β do all other acts which the Administrative Agent may deem necessary or proper to protect
its security interest granted hereunder, provided such acts are not inconsistent with or in
violation of the terms of any of the Credit Agreement, the other Loan Documents or Applicable Law;
and
Β Β Β Β Β (c)Β sell, assign or otherwise transfer the applicable Agreements in accordance with the Credit
Agreement, the other Loan Documents and Applicable Law, subject, however, to the prior approval of
each Counterparty, to the extent required under the applicable Agreements.
Β Β Β Β Β SECTION 6. Covenants; Right to Cure. Each Grantor agrees that it will timely perform
all of its obligations under the Agreements and that should it fail to perform or observe any
covenant or comply with any condition contained in the Agreements, the Administrative Agent may
(but is not obligated to), but without releasing such Grantor from its obligation to perform such
covenant or comply with such condition, perform such covenant or comply with such condition. To
the extent that the Administrative Agent or any other Secured Party shall incur any costs or pay
any monies in connection with such performance or compliance, including attorneysβ fees and
expenses, such costs and expenses shall be included in the Obligations and secured hereby and by
all other collateral securing the Obligations.
Β Β Β Β Β SECTION 7. Indemnification. The Administrative Agent may pursue any rights assigned
to it hereunder and shall not be liable for any loss sustained by any Grantor as a result of any
action taken by the Administrative Agent unless such loss is caused solely by the gross negligence
or willful misconduct of the Administrative Agent. The Administrative Agent shall not be obligated
to perform or discharge, nor does the Administrative Agent hereby undertake to perform or
discharge, any obligation, duty or liability of any Grantor under the Agreements. The Grantors
shall, jointly and severally, indemnify the Administrative Agent and the other Secured Parties for,
and hold the Administrative Agent and the other Secured Parties harmless from, any and all
liability, loss or damage which may, or might, be incurred by it under the Agreements (or under any
one of them) or under or by reason of this Assignment, or from any and all claims and demands
whatsoever which may be asserted against the Administrative Agent or any other Secured Party by
reason of any alleged obligations or undertakings on its part to perform any Grantorβs obligations
under the Agreements (or under any one of them). Should the Administrative Agent or any other
Secured Party incur any liability under any of the Agreements, or under or by reason of this
Assignment, or in defense of any such claims or demands, the amount thereof including costs,
expenses and reasonable attorneysβ fees shall be secured hereby and by all other collateral
securing the Obligations and the Grantors shall, jointly and severally, reimburse the
Administrative Agent or such Secured Party therefor promptly after demand. The foregoing indemnity
shall be in addition to any indemnification obligations contained in the Credit Agreement, any
other Loan Document or any Secured Hedging Agreement.
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Β Β Β Β Β SECTION 8. Termination. At such time as the Obligations (excluding Obligations not
yet due and payable under the Secured Hedging Agreements that have not been terminated) shall have
been paid
in full, the Commitments shall have been terminated and all Letters of Credit shall have been
terminated, this Assignment shall automatically terminate and be of no further force and effect.
Β Β Β Β Β SECTION 9. Successors. This Assignment shall be binding upon and inure to the benefit
of the Grantors, the Administrative Agent, the other Secured Parties and their respective
successors and assigns. The Grantors and Administrative Agent agree that any Counterparty
consenting to this Assignment shall not be deemed to be a party hereto for purposes of SectionΒ 11
hereof.
Β Β Β Β Β SECTION 10. Governing Law. This Assignment shall be deemed to be a contract entered
into pursuant to the laws of the State of New York and shall in all respects be governed by,
construed and enforced in accordance with the laws of the State of New York (including Section
5-1401 and SectionΒ 5-1402 of the General Obligations Law of the State of New York), without
reference to the conflicts of law principles thereof.
Β Β Β Β Β SECTION 11. Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS ASSIGNMENT OR ANY OTHER LOAN
DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY
OTHER THEORY). EACH PARTY HERETO (A)Β CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)Β ACKNOWLEDGES THAT IT AND THE
OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS ASSIGNMENT AND THE OTHER LOAN DOCUMENTS
BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION
Β Β Β Β Β SECTION 12. Other Loan Documents. This Assignment shall supplement the other Loan
Documents and does not and shall not be deemed to limit or otherwise restrict any rights or
remedies of the Administrative Agent or other Secured Parties under the Credit Agreement, any other
Security Document, any other Loan Document or any Secured Hedging Agreement.
Β Β Β Β Β SECTION 13. Additional Grantors. Each Additional Grantor that is required to become a
party to this Assignment pursuant to SectionΒ 5.09 of the Credit Agreement shall become a Grantor
for all purposes of this Assignment upon execution and delivery by such Additional Grantor of a
supplement to this Assignment substantially in the form of ScheduleΒ B attached hereto.
[Signature Pages Follow]
Β
Β
Β Β Β Β Β IN WITNESS WHEREOF, each of the Grantors and the Borrower has caused this Assignment to be
executed under seal by its duly authorized representative, all as of the day and year first written
above.
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THE GEO GROUP, INC.
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Address for Notices:
One Park Place
000 XX 00xx Xxxxxx
XxxxxΒ 000
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxx
Telephone No.: 000-000-0000
Telecopy No.: 000-000-0000
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GEO RE HOLDINGS LLC
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Address for Notices:
One Park Place
000 XX 00xx Xxxxxx
XxxxxΒ 000
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxx
Telephone No.: 000-000-0000
Telecopy No.: 000-000-0000
Collateral Assignment Agreement
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JUST CARE, INC.
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Address for Notices:
One Park Place
000 XX 00xx Xxxxxx
XxxxxΒ 000
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxx
Telephone No.: 000-000-0000
Telecopy No.: 000-000-0000
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CORRECTIONAL SERVICES CORPORATION
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Address for Notices:
One Park Place
000 XX 00xx Xxxxxx
XxxxxΒ 000
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxx
Telephone No.: 000-000-0000
Telecopy No.: 000-000-0000
Collateral Assignment Agreement
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BNP PARIBAS,
as Administrative Agent
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Address for Notices:
BNP Paribas
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxxxx
Telephone No.: (000)Β 000-0000
Telecopy No.: (000)Β 000-0000
Collateral Assignment Agreement
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EXHIBIT E
to
Credit Agreement
dated as of AugustΒ 4, 2010
by and among
The GEO Group, Inc.,
as Borrower,
the lenders party thereto,
as Lenders,
and
BNP Paribas,
as Administrative Agent
FORM OF MORTGAGE
Β
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Β Β Β Β Β [County], [State/Commonwealth]
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[LEASEHOLD]3 MORTGAGE, ASSIGNMENT OF RENTS,
SECURITY AGREEMENT AND FIXTURE FILING
BY
[INSERT MORTGAGOR NAME],
as Mortgagor
TO
BNP PARIBAS, as Administrative Agent,
as Mortgagee
Relating to Premises in:
Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β ,
Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
DATED: As of [Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β ], 2010
Β
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This instrument was prepared
by and after recording should be returned to:
Milbank, Tweed, Xxxxxx & XxXxxx LLP
0 Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx X. Xxxxxxx, Esq.
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Mortgage
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[LEASEHOLD ]4 MORTGAGE, ASSIGNMENT OF RENTS,
SECURITY AGREEMENT AND FIXTURE FILING
KNOW ALL PERSONS BY THESE PRESENTS:
Β Β Β Β Β Β Β Β Β Β THIS [LEASEHOLD]5 MORTGAGE, ASSIGNMENT OF RENTS, SECURITY AGREEMENT AND FIXTURE
FILING (this βMortgageβ) is made as of Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β ___, 2010 by [Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β ],
a [Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β ] duly organized and validly existing under the laws of the [State/Commonwealth] of
[Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β ] and having an office at [Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β ] (the βMortgagorβ), in favor of
BNP PARIBAS, having an office at 000 Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, as administrative agent for the lenders party to the Credit Agreement referred to below (in
such capacity, together with its successors in such capacity, the βMortgageeβ).
WITNESSETH:
Β Β Β Β Β Β Β Β Β Β WHEREAS, [The Geo Group, Inc. (the βBorrower"]6, [Mortgagor]7,
certain lenders (collectively, the βLendersβ) and the Mortgagee are parties to a Credit
Agreement dated as of [Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β ], 2010 (said Credit Agreement, as modified, supplemented, amended
and amended and restated and in effect from time to time, being herein called the βCredit
Agreementβ; except as otherwise herein expressly provided, all terms defined in the Credit
Agreement being used herein as defined therein), which Credit Agreement provides for extensions of
term credit to be made by the Lenders to the [Borrower]8[Mortgagor]9 in an
aggregate principal amount up to but not exceeding $350,000,000 and for extensions of revolving
credit (by means of the making of Revolving Credit Loans, the issuance of, or participations in,
Letters of Credit and Swingline Loans) to be made by the Lenders to the
[Borrower]8[Mortgagor]9 in an aggregate principal amount at any one time
outstanding up to but not exceeding $400,000,000;
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Β Β Β Β Β Β Β Β Β Β WHEREAS, the Credit Agreement provides for additional extensions of credit to be made by the
Lenders to the [Borrower]12[Mortgagor]13 as Incremental Loans and increases
of
the Revolving Credit Commitments in a combined aggregate principal amount up to but not exceeding
$250,000,000;
Β Β Β Β Β Β Β Β Β Β WHEREAS, the [Borrower]14[Mortgagor]15 and the Restricted Subsidiaries
may from time to time be obligated to the Hedge Counterparties in respect of one or more Hedging
Agreements;
Β Β Β Β Β Β Β Β Β Β WHEREAS, pursuant to the Guaranty Agreement (said Guaranty Agreement, as modified,
supplemented, amended and amended and restated and in effect from time to time, being herein called
the βGuarantyβ), the Mortgagor has unconditionally guaranteed [the principal of and
interest on the Loans made by the Lenders to the Borrower and all other amounts from time to time
owing to the Lenders by the Borrower or any Restricted Subsidiary under the Credit Agreement and
under any Hedging Agreement permitted under the Credit Agreement or outstanding as of the Effective
Date, in each case with any Hedge Counterparty;]16[all amounts from time to time owing
by the Mortgagor or any Restricted Subsidiary under any Hedging Agreement permitted under the
Credit Agreement or outstanding as of the Effective Date, in each case with any Hedge
Counterparty;]17
Β Β Β Β Β Β Β Β Β Β WHEREAS, it is a condition to the obligation of the Lenders to extend credit to the
[Borrower]18[Mortgagor]19 pursuant to the Credit Agreement that the
Mortgagor execute and deliver this Mortgage;
Β Β Β Β Β Β Β Β Β Β NOW, THEREFORE, for good and valuable consideration, the receipt of which is hereby
acknowledged, and FOR THE PURPOSE OF SECURING the following (collectively, the
βObligationsβ):
Β Β Β Β Β (a) [the Guaranteed Obligations (as defined in the Guaranty) in respect of its
guarantee under the Guaranty,]20[the Guaranteed Obligations (as defined in the
Guaranty) in respect of its guarantee under the Guaranty and the payment of all Obligations
(as
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Use if Borrower is Mortgagor |
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defined in the Credit Agreement) under the Credit Agreement, including the initial Loans
and any and all reborrowings, future advances and readvances thereunder and modifications,
extensions, substitutions, exchanges and renewals of the Credit Agreement
(each of which reborrowings, future advances, readvances, modifications, extensions,
substitutions, exchanges and renewals shall enjoy the same priority as the initial Loans
thereunder),]21
Β Β Β Β Β (b) the performance and payment of the covenants, agreements and obligations
hereinafter contained and contained in the Credit Agreement and the other Loan Instruments
(as defined below) and all other monies secured hereby, including, without limitation, any
and all sums expended by the Mortgagee pursuant to SectionΒ 1.06, together with interest
thereon, and
Β Β Β Β Β (c) the payment of all other obligations of [the Borrower and]22 the
Mortgagor to the Lenders under the Loan Instruments (as defined below),
the Mortgagor hereby irrevocably grants, bargains, sells, releases, conveys, warrants, assigns,
transfers, mortgages, pledges, sets over and confirms unto the Mortgagee, under and subject to the
terms and conditions hereinafter set forth, [all of its right, title and interest in and to the
lease/lease agreement (the βLeaseβ) more particularly described in ScheduleΒ I
affecting]23 the land and premises (collectively, the βPropertyβ) described in
ScheduleΒ I;
Β Β Β Β Β Β Β Β Β Β TOGETHER WITH all interests, estates or other claims, both in law and in equity, that the
Mortgagor now has or may hereafter acquire in (a)Β the Property, (b)Β all easements, rights-of-way
and rights used in connection therewith or as a means of access thereto and (c)Β all tenements,
hereditaments and appurtenances in any manner belonging, relating or appertaining thereto (all of
the foregoing interests, estates and other claims being hereinafter collectively called
βEasements and Rights of Wayβ); and
Β Β Β Β Β Β Β Β Β Β TOGETHER WITH all estate, right, title and interest of the Mortgagor, now owned or hereafter
acquired, in and to any land lying within the right-of-way of any streets, open or proposed,
adjoining the Property, and any and all sidewalks, alleys and strips and gores of land adjacent to
or used in connection therewith (all of the foregoing estate, right, title and interest being
hereinafter called βAdjacent Rightsβ); and
Β Β Β Β Β Β Β Β Β Β TOGETHER WITH all estate, right, title and interest of the Mortgagor, now owned or hereafter
acquired, in and to any and all buildings and other improvements now or
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Β |
Use if Mortgagor is the borrower |
Β |
22 |
Β |
Use if Mortgagor is a Guarantor |
Β |
23 |
Β |
Insert if mortgage is a leasehold mortgage |
Mortgage
Β
-4-
hereafter located on the
Property and all building materials, building equipment and fixtures of every kind and nature
located on the Property or, attached to, contained in or used in any such buildings and other
improvements, and all appurtenances and additions thereto and betterments,
substitutions and replacements thereof (all of the foregoing estate, right, title and interest
being hereinafter collectively called βImprovementsβ); and
Β Β Β Β Β Β Β Β Β Β TOGETHER WITH all estate, right, title and interest of the Mortgagor in and to all such
tangible property now owned or hereafter acquired by the Mortgagor (including all machinery,
apparatus, equipment, fittings and articles of personal property) and now or hereafter located on
or at or attached to the Property such that an interest in such tangible property arises under
applicable real estate law, and any and all products and accessions to any such property that may
exist at any time (all of the foregoing estate, right, title and interest, and products and
accessions being hereinafter called βFixturesβ); and
Β Β Β Β Β Β Β Β Β Β TOGETHER WITH all estate, right, title and interest of the Mortgagor in and to all rights,
royalties and profits in connection with all minerals, oil and gas and other hydrocarbon substances
on or in the Property, development rights or credits, air rights, water, water rights (whether
riparian, appropriative, or otherwise and whether or not appurtenant) and water stock (all of the
foregoing estate, right, title and interest being hereinafter collectively called βMineral and
Related Rightsβ); and
Β Β Β Β Β Β Β Β Β Β TOGETHER WITH all reversion or reversions and remainder or remainders of the Property and
Improvements and all estate, right, title and interest of the Mortgagor in and to any and all
present and future leases of space in the Property and Improvements, and all rents, revenues,
proceeds, issues, profits, royalties, income and other benefits now or hereafter derived from the
Property, the Improvements and the Fixtures, subject to the right, power and authority hereinafter
given to the Mortgagor to collect and apply the same (all of the foregoing reversions, remainders,
leases of space, rents, revenues, proceeds, issues, profits, royalties, income and other benefits
being hereinafter collectively called βRentsβ); and
Β Β Β Β Β Β Β Β Β Β TOGETHER WITH all estate, right, title and interest and other claim or demand that the
Mortgagor now has or may hereafter acquire with respect to any damage to the Property, the
Improvements or the Fixtures and any and all proceeds of insurance in effect with respect to the
Improvements or the Fixtures, including, without limitation, any title insurance, and any and all
awards made for the taking by eminent domain, or by any proceeding or purchase in lieu thereof, of
the Property, the Improvements or the Fixtures, including without limitation any awards resulting
from a change of grade of streets or as the result of any other damage to the Property, the
Improvements or the Fixtures for which compensation shall be given by any governmental authority
(all of the foregoing estate, right, title and interest and other claims or
Mortgage
Β
-5-
demand, and any such
proceeds or awards being hereinafter collectively called βDamage Rightsβ); and
Β Β Β Β Β Β Β Β Β Β TOGETHER WITH all estate, right, title, interest and other claim of the Mortgagor with respect
to any parking facilities located other than on the Property and used or intended to be used in
connection with the operation, ownership or use of the Property, any and all replacements and
substitutions for the same, and any other parking rights, easements, covenants and other interests
in parking facilities acquired by the Mortgagor for the use of tenants or occupants of the
Improvements (all of the foregoing estate, right, title, interest and other claim being hereinafter
collectively called βParking Rightsβ); and
Β Β Β Β Β Β Β Β Β Β TOGETHER WITH all estate, right, title and interest of the Mortgagor in respect of any and all
air rights, development rights, zoning rights or other similar rights or interests that benefit or
are appurtenant to the Property or the Improvements (all of the foregoing estate, right, title and
interest being hereinafter collectively called βAir and Development Rightsβ);
Β Β Β Β Β Β Β Β Β Β All of the foregoing Easements and Rights of Way, Adjacent Rights, Improvements, Fixtures,
Mineral and Related Rights, Rents, Damage Rights, Parking Rights and Air and Development Rights
being sometimes hereinafter referred to collectively as the βAncillary Rights and
Propertiesβ and [the Lease,]24 the Property and Ancillary Rights and Properties
being sometimes hereinafter referred to collectively as the βMortgage Estateβ;
Β Β Β Β Β Β Β Β Β Β TO HAVE AND TO HOLD the Mortgage Estate with all privileges and appurtenances thereunto
belonging, to the Mortgagee and its successors and assigns, forever, upon the terms and conditions
and for the uses hereinafter set forth;
Β Β Β Β Β Β Β Β Β Β PROVIDED ALWAYS, that if the principal of and interest on the Loans under the Credit Agreement
and all of the other Obligations shall be paid in full, and the Mortgagor shall abide by and comply
with each and every covenant contained herein and in the Loan Instruments, then this Mortgage and
the Lien and estate hereby granted shall cease, terminate and become void.
Β Β Β Β Β Β Β Β Β Β This Mortgage, [the Guaranty,] the Credit Agreement, the Loan Documents and any other
instrument given to evidence or further secure the payment and performance of any Obligation are
sometimes hereinafter collectively referred to as the βLoan Instrumentsβ.
Β Β Β Β Β Β Β Β Β Β TO PROTECT THE SECURITY OF THIS MORTGAGE, THE MORTGAGOR HEREBY COVENANTS AND AGREES AS
FOLLOWS:
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Β |
Insert if mortgage is a leasehold mortgage |
Mortgage
Β
-6-
ARTICLE 1
Particular Covenants and Agreements of the Mortgagor
Β Β Β Β Β Β Β Β Β Β SectionΒ 1.01. Title, Etc. The Mortgagor represents and warrants that [(a) the Lease
is in full force and effect and there are no defaults thereunder and, to the knowledge of the
Mortgagor, no event has occurred and is continuing that with notice or lapse of time or both will
result in such a default and (b)Β the Mortgagor is lawfully seized and possessed of a valid and
subsisting leasehold estate in and to the Property and is the owner of the related Ancillary Rights
and Properties with respect to the Lease,]25 [it has good and marketable fee simple
title in and to the Property and the related Ancillary Rights and Properties,]26 in each
case subject to no mortgage, deed of trust, lien, pledge, charge, security interest or other
encumbrance or adverse claim of any nature, except those permitted under the Credit Agreement.
Β Β Β Β Β Β Β Β Β Β The Mortgagor represents and warrants that it has the full power and lawful authority to
grant, bargain, sell, release, convey, warrant, assign, transfer, mortgage, pledge, set over and
confirm unto the Mortgagee the Mortgage Estate as hereinabove provided and warrants that it will
forever defend the title to the Mortgage Estate and the validity and priority of the Lien or estate
hereof against the claims and demands of all persons whomsoever.
Β Β Β Β Β Β Β Β Β Β SectionΒ 1.02. Further Assurances; Filing; Re-Filing; Etc.
Β Β Β Β Β Β Β Β Β Β (a) Further Instruments. The Mortgagor shall execute, acknowledge and deliver, from
time to time, such further instruments as the Mortgagee may require to accomplish the purposes of
this Mortgage.
Β Β Β Β Β Β Β Β Β Β (b) Filing and Re-Filing. The Mortgagor, immediately upon the execution and delivery
of this Mortgage, and thereafter from time to time, shall cause this Mortgage, any security
agreement or mortgage supplemental hereto and each instrument of further assurance to be filed,
registered or recorded and re-filed, re-registered or re-recorded in such manner and in such places
as may be required by any present or future law in order to publish notice of and perfect the Lien
or estate of this Mortgage upon the Mortgage Estate.
Β Β Β Β Β Β Β Β Β Β (c) Fees and Expenses. The Mortgagor shall pay all filing, registration and
recording fees, all re-filing, re-registration and re-recording fees, and all expenses incident to
the
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Β |
Insert if mortgage is a leasehold mortgage |
Β |
26 |
Β |
Insert if mortgage is a fee mortgage |
Mortgage
Β
-7-
execution, filing, recording and acknowledgment of this Mortgage, any security agreement or
mortgage supplemental hereto and any instrument of further assurance, and all Federal, state,
county and municipal stamp taxes and other taxes, duties, imposts, assessments and charges
arising out of or in connection with the execution, delivery, filing and recording of this Mortgage
or any of the other Loan Instruments, any security agreement or mortgage supplemental hereto or any
instruments of further assurance.
Β Β Β Β Β Β Β Β Β Β SectionΒ 1.03. Insurance; Foreclosure. In the event of foreclosure of the Lien of
this Mortgage or other transfer of title or assignment of the Mortgage Estate in extinguishment, in
whole or in part, of the Obligations, all right, title and interest of the Mortgagor in and to all
policies of casualty insurance covering all or any part of the Mortgage Estate shall [, subject to
the rights of the lessor under the Lease,]25 inure to the benefit of and pass to the
successors in interest to the Mortgagor or the purchaser or grantee of the Mortgage Estate or any
part thereof.
Β Β Β Β Β Β Β Β Β Β SectionΒ 1.04. Impositions.
Β Β Β Β Β Β Β Β Β Β (a) Payment of Impositions. The Mortgagor shall pay or cause to be paid, before any
fine, penalty, interest or cost attaches thereto, all taxes, assessments, water and sewer rates,
utility charges and all other governmental or non-governmental charges or levies now or hereafter
assessed or levied against any part of the Mortgage Estate (including, without limitation,
non-governmental levies or assessments such as maintenance charges, owner association dues or
charges or fees, levies or charges resulting from covenants, conditions and restrictions affecting
the Mortgage Estate) or upon the Lien or estate of the Mortgagee therein (collectively,
βImpositionsβ), as well as all claims for labor, materials or supplies that, if unpaid,
might by law become a prior Lien thereon, and within 10Β days after request by the Mortgagee will
exhibit receipts showing payment of any of the foregoing; provided, however, that if by law
any such Imposition may be paid in installments (whether or not interest shall accrue on the unpaid
balance thereof), the Mortgagor may pay the same in installments (together with accrued interest on
the unpaid balance thereof) as the same respectively become due, before any fine, penalty or cost
attaches thereto.
Β Β Β Β Β Β Β Β Β Β (b) Right to Contest Impositions. Notwithstanding anything contained in Section
1.04(a) to the contrary, the Mortgagor at its expense may, after prior notice to the Mortgagee,
contest the amount or validity or application, in whole or in part, of any Imposition or Lien
therefor or any claims of mechanics, materialmen, suppliers or vendors or Lien thereof, and may
withhold payment of the same pending such proceedings if permitted by law and if in accordance with
the Credit Agreement.
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Β |
Insert if mortgage is a leasehold mortgage |
Mortgage
Β
-8-
Β Β Β Β Β Β Β Β Β Β SectionΒ 1.05. Limitations of Use. The Mortgagor shall not initiate, join in or
consent to any change in any private restrictive covenant, zoning ordinance or other public or
private restrictions limiting or defining the uses that may be made of the Property and the
Improvements or any part thereof that would have a material adverse effect on the value of the
Property or the Improvements. Except as otherwise permitted under the Loan Instruments, the
Mortgagor shall comply in all material respects with the provisions of all leases, licenses,
agreements and private covenants, conditions and restrictions that at any time are applicable to
the Mortgage Estate.
Β Β Β Β Β Β Β Β Β Β SectionΒ 1.06. Actions to Protect Mortgage Estate. If the Mortgagor shall fail to (a)
[perform and observe any of the terms, covenants or conditions required to be performed or observed
by it under the Lease,]28 (b)Β effect the insurance required by and as provided in
SectionΒ 5.05 of the Credit Agreement, (c)Β make the payments required by SectionΒ 1.04 or (d)Β perform
or observe any of its other covenants or agreements hereunder, the Mortgagee may, without
obligation to do so, and upon notice to the Mortgagor (except in an emergency) effect or pay the
same. To the maximum extent permitted by law, all sums, including reasonable attorneysβ fees and
disbursements, so expended or expended to sustain the Lien or estate of this Mortgage or its
priority, or to protect or enforce any of the rights hereunder, or to recover any of the
Obligations, shall be a Lien on the Mortgage Estate, shall be deemed to be added to the Obligations
secured hereby, and shall be paid by the Mortgagor within 10Β days after demand therefor, together
with interest thereon at the default rate provided for in the Credit Agreement.
Β Β Β Β Β Β Β Β Β Β SectionΒ 1.07. Estoppel Certificates. The Mortgagor, within ten days after written
request therefor, shall furnish the Mortgagee a written statement, duly acknowledged, of the amount
of the Obligations then secured by this Mortgage and whether to their knowledge any offsets or
defenses exist against any such Obligations.
Β Β Β Β Β Β Β Β Β Β SectionΒ 1.08. Notice Regarding Special Flood Hazards. The Mortgagor hereby
acknowledges that it realizes that the Property [is][is not][is partially] in a zone identified by
the Director of the Federal Emergency Management Agency as a special flood hazard zone described in
12 C.F.R. Β§ 22.2 and that it has received, prior to the making of the Loans and the incurrence of
any other indebtedness constituting part of the Obligations secured by this Mortgage, the notice
regarding Federal disaster relief assistance referred to in the Appendix to 12 C.F.R. PartΒ 22.
Β Β Β Β Β Β Β Β Β Β [SectionΒ 1.09. Leasehold Interests.
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Insert if mortgage is a leasehold mortgage. |
Mortgage
Β
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Β Β Β Β Β Β Β Β Β Β (a) Leasehold Interests Generally. The Mortgagor shall (i)Β promptly perform and
observe all of the terms, covenants and conditions required to be performed and observed by the
Mortgagor under the Lease and do all things necessary to preserve and to keep unimpaired its rights
thereunder, (ii)Β promptly notify the Mortgagee of any default by the Mortgagor under the
Lease in the performance of any of the terms, covenants or conditions on the part of the Mortgagor
to be performed or observed thereunder or of the giving of any notice by the lessor to the
Mortgagor of any default under the Lease or of the lessorβs intention to exercise any remedy
reserved to the lessor thereunder and (iii)Β promptly cause a copy of each such notice given by the
lessor under the Lease to the Mortgagor to be delivered to the Mortgagee.
Β Β Β Β Β Β Β Β Β Β (b) Right to Cure Defaults. If the Mortgagor shall fail promptly to perform or
observe any of the terms, covenants or conditions required to be performed by it under the Lease,
including, without limitation, payment of all rent and other charges due thereunder, the Mortgagee
may, without obligation to do so, and upon notice to the Mortgagor (except in an emergency), take
such action as is appropriate to cause such terms, covenants or conditions to be promptly performed
or observed on behalf of the Mortgagor but no such action by the Mortgagee shall release the
Mortgagor from any of its obligations under this Mortgage. Upon receipt by the Mortgagee from the
lessor under the Lease of any notice of default by the Mortgagor thereunder, the Mortgagee may rely
thereon and take any action as aforesaid to cure such default even though the existence of such
default or the nature thereof be questioned or denied by the Mortgagor or by any party on behalf of
the Mortgagor.
Β Β Β Β Β Β Β Β Β Β (c) No Modification Without Consent. The Mortgagor shall not surrender its leasehold
estate and interests under the Lease, nor terminate or cancel the Lease, and the Mortgagor shall
not materially modify, change, supplement, alter or amend the Lease orally or in writing, and the
Mortgagor does hereby expressly release, relinquish and surrender unto the Mortgagee all its right,
power and authority, if any, to materially modify, change, supplement, alter or amend the Lease in
any way, and any attempt on the part of the Mortgagor to exercise any such right without the
consent of the Mortgagee shall be null and void.
Β Β Β Β Β Β Β Β Β Β (d) Release or Forbearance. No release or forbearance of any of the Mortgagorβs
obligations under the Lease, pursuant to the terms thereof or otherwise, shall release the
Mortgagor from any of its obligations under this Mortgage.
Β Β Β Β Β Β Β Β Β Β (e) No Merger of Interests. Neither the fee title to the property demised by the
Lease nor the leasehold estate created by the Lease shall merge, but shall always remain separate
and distinct, notwithstanding the union of the aforesaid estates either in the lessor or the
Mortgagor under the Lease or in a third party by purchase or otherwise, unless the Mortgagee shall,
at its option, execute and record a document evidencing its intent to merge such estates. If the
Mortgagor acquires the fee title or any other estate, title or interest in any Property covered
Mortgage
Β
-10-
by
the Lease, this Mortgage shall attach to, be a Lien upon and spread to the fee title or such other
estate so acquired, and such fee title or other estate shall, without further assignment, mortgage
or conveyance, become and be subject to the Lien of this Mortgage. The Mortgagor shall notify the
Mortgagee of any such acquisition by the Mortgagor and, on written request by
the Mortgagee, shall cause to be executed and recorded all such other and further assurances or
other instruments in writing as may in the opinion of the Mortgagee be required to carry out the
intent and meaning hereof.
Β Β Β Β Β Β Β Β Β Β (f) Obligations of Lessor. The Mortgagor shall enforce the obligations of the lessor
under the Lease to the end that the Mortgagor may enjoy all of the rights granted to it under the
Lease and shall promptly notify the Mortgagee of any material default by the lessor under the
Lease, in the performance or observance of any of the terms, covenants and conditions on the part
of the lessor to be performed or observed under the Lease and the Mortgagor shall promptly advise
the Mortgagee of the occurrence of any event of default under the Lease.
Β Β Β Β Β Β Β Β Β Β (g) No-Default Certificates. The Mortgagor shall use commercially reasonable efforts
to obtain from the lessor under the Lease and deliver to the Mortgagee, within 20Β days after demand
from the Mortgagee, a statement in writing certifying that the Lease is unmodified (or, if
modified, how modified) and in full force and effect and the dates to which the rent and other
charges, if any, have been paid in advance, and stating whether or not, to the best knowledge of
the signer of such certificate, the Mortgagor is in default in the performance of any covenant,
agreement or condition contained in the Lease, and, if so, specifying each such default of which
the signer may have knowledge.
Β Β Β Β Β Β Β Β Β Β (h) Renewals and Extensions. Unless the exercise of any option, now existing or
hereafter created, to renew or extend the term of the Lease would, in the Mortgagorβs reasonable
business judgment, be inadvisable, the Mortgagor shall, at least six months, or such lesser period
as may be permitted in the Lease, prior to the last day upon which the Mortgagor may validly
exercise such option, (i)Β exercise such option in such manner as will cause the term of the Lease
to be effectively renewed or extended for the period provided by such option and (ii)Β give
immediate notice thereof to the Mortgagee, it being understood that in the event of the failure of
the Mortgagor to do so, the Mortgagee shall have, and is hereby granted, the irrevocable right to
exercise any such option, either in its own name and behalf, or in the name and behalf of the
Mortgagor, as the Mortgagee shall in its sole discretion determine.
Β Β Β Β Β Β Β Β Β Β (i) Notifications of Changes in Rent. The Mortgagor shall promptly notify the
Mortgagee of any change in the rent or other charges payable under the Lease, except for changes
made pursuant to the provisions of the Lease.
Mortgage
Β
-11-
Β Β Β Β Β Β Β Β Β Β (j) Notifications Concerning Proceeds. In the event that any proceeds of insurance
on any part of the Mortgage Estate, or any condemnation proceeds, shall be deposited with any
person pursuant to the requirements of the Lease, the Mortgagor shall promptly notify
the Mortgagee of the name and address of the person with whom such proceeds have been deposited and
of the amount so deposited.]29
ARTICLE 2
Assignment of Rents, Issues and Profits
Β Β Β Β Β Β Β Β Β Β SectionΒ 2.01. Assignment of Rents, Issues and Profits. The Mortgagor hereby assigns
and transfers to the Mortgagee, FOR THE PURPOSE OF SECURING the Obligations, all Rents, and hereby
gives to and confers upon the Mortgagee the right, power and authority to collect the same. The
Mortgagor irrevocably appoints the Mortgagee its true and lawful attorney-in-fact, at its option at
any time and from time to time following the occurrence and during the continuance of a Default, to
demand, receive and enforce payment, to give receipts, releases and satisfactions, and to xxx, in
the name of the Mortgagor or otherwise, for Rents and apply the same to the Obligations as provided
in paragraph (a)Β of SectionΒ 4.03; provided, however, that the Mortgagor shall have the
right to collect Rents at any time prior to the occurrence of a Default (but not more than one
month in advance, except in the case of security deposits).
Β Β Β Β Β Β Β Β Β Β SectionΒ 2.02. Collection Upon Default. To the extent permitted by law, upon the
occurrence of any Default, the Mortgagee may, at any time without notice, either in person, by
agent or by a receiver appointed by a court, and without regard to the adequacy of any security for
the Obligations or the solvency of the Mortgagor, enter upon and take possession of the Property,
the Improvements and the Fixtures or any part thereof, in its own name, xxx for or otherwise
collect Rents including those past due and unpaid, and, apply the same, less costs and expenses of
operation and collection, including attorneysβ fees and disbursements, to the payment of the
Obligations as provided in paragraph (a)Β of SectionΒ 4.03, and in such order as the Mortgagee may
determine. The collection of Rents or the entering upon and taking possession of the Property, the
Improvements or the Fixtures or any part thereof, or the application thereof as aforesaid, shall
not cure or waive any Default or notice thereof or invalidate any act done in response to such
Default or pursuant to notice thereof.
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29 |
Β |
Insert if mortgage is a leasehold mortgage |
Mortgage
Β
-12-
ARTICLE 3
Security Agreement
Β Β Β Β Β Β Β Β Β Β SectionΒ 3.01. Creation of Security Interest. The Mortgagor hereby grants to the
Mortgagee a security interest in the Fixtures for the purpose of securing the Obligations. The
Mortgagee shall have, in addition to all rights and remedies provided herein and in the other Loan
Instruments, all the rights and remedies of a secured party under the Uniform Commercial Code of
the state in which the applicable portion of the Fixtures is located. A statement describing the
portion of the Mortgage Estate comprising the fixtures hereby secured is set forth in the granting
clauses of this Mortgage. The Mortgagor represents and warrants to the Mortgagee that the
Mortgagor is the record owner of the Mortgage Estate, the employer identification number of the
Mortgagor is [Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β ] and the organizational identification number of the Mortgagor is
[Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β ].
Β Β Β Β Β Β Β Β Β Β SectionΒ 3.02. Warranties, Representations and Covenants. The Mortgagor hereby
warrants, represents and covenants that: (a)Β the Fixtures will be kept on or at the Property and
the Mortgagor will not remove any Fixtures from the Property, except as permitted under the Loan
Instruments and except such portions or items of the Fixtures that are consumed or worn out in
ordinary usage, all of which shall be promptly replaced by the Mortgagor, except as otherwise
expressly provided in the Loan Instruments, (b)all covenants and obligations of the Mortgagor
contained herein relating to the Mortgage Estate shall be deemed to apply to the Fixtures whether
or not expressly referred to herein and (c)Β this Mortgage constitutes a security agreement and
βfixture filingβ as those terms are used in the applicable Uniform Commercial Code. The Mortgagor
is the βDebtorβ and its name and mailing address are set forth on Page 1 hereof. The Mortgagee is
the βSecured Partyβ and its name and mailing address from which information relative to the
security interest created hereby are also set forth on Page 1 hereof. The information provided in
this SectionΒ 3.02 is provided so that this Mortgage shall comply with the requirements of
the Uniform Commercial Code as in effect in the state in which the Mortgage Estate is located for a
mortgage instrument to be filed as a financing statement.
ARTICLE 4
Defaults; Remedies
Β Β Β Β Β Β Β Β Β Β SectionΒ 4.01. Defaults. If any Event of Default (herein, a βDefaultβ) under
the Credit Agreement shall occur and be continuing and, as more particularly provided in the Credit
Agreement, the principal of and accrued interest on the extensions of credit and all other
Obligations under the Credit Agreement shall be declared, or become, due and payable, then the
Mortgage
Β
-13-
obligations of the Mortgagor [in respect of its guarantee under the Guaranty]30 [in
respect of its guarantee under the Guaranty and under the Credit Agreement]31 shall
become due and payable, without presentment, demand, protest or other formalities of any kind, all
of which have been waived pursuant to the Credit Agreement.
Β Β Β Β Β Β Β Β Β Β SectionΒ 4.02. Default Remedies.
Β Β Β Β Β Β Β Β Β Β (a) Remedies Generally. If a Default shall have occurred and be continuing, this
Mortgage may, to the maximum extent permitted by law, be enforced, and the Mortgagee may exercise
any right, power or remedy permitted to it hereunder, under the Credit Agreement or under any of
the other Loan Instruments or by law, and, without limiting the generality of the foregoing, the
Mortgagee may, personally or by its agents, to the maximum extent permitted by law:
Β Β Β Β Β Β Β Β Β Β (i) enter into and take possession of the Mortgage Estate or any part thereof, exclude
the Mortgagor and all persons claiming under the Mortgagor whose claims are junior to this
Mortgage, wholly or partly therefrom, and use, operate, manage and control the same either
in the name of the Mortgagor or otherwise as the Mortgagee shall deem best, and upon such
entry, from time to time at the expense of the Mortgagor and the Mortgage Estate, make all
such repairs, replacements, alterations, additions or improvements to the Mortgage Estate or
any part thereof as the Mortgagee may deem proper and, whether or not the Mortgagee has so
entered and taken possession of the Mortgage Estate or any part thereof, collect and receive
all Rents and apply the same to the payment of all expenses that the Mortgagee may be
authorized to make under this Mortgage, the remainder to be applied to the payment of the
Obligations until the same shall have been repaid in full; if the Mortgagee demands or
attempts to take possession of the Mortgage Estate or any portion thereof in the exercise of
any rights hereunder, the Mortgagor shall promptly turn over and deliver complete possession
thereof to the Mortgagee; and
Β Β Β Β Β Β Β Β Β Β (ii) personally or by agents, with or without entry, if the Mortgagee shall deem it
advisable:
Β Β Β Β Β (x) sell the Mortgage Estate at a sale or sales held at such place or places
and time or times and upon such notice and otherwise in such manner as may be
required by law, or, in the absence of any such requirement, as the Mortgagee may
deem appropriate, and from time to time adjourn any such sale by
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announcement at the time and place specified for such sale or for such adjourned
sale without further notice, except such as may be required by law;
Β Β Β Β Β (y) proceed to protect and enforce its rights under this Mortgage, by suit for
specific performance of any covenant contained herein or in the Loan Instruments or
in aid of the execution of any power granted herein or in the Loan Instruments, or
for the foreclosure of this Mortgage (as a mortgage or otherwise) and the sale of
the Mortgage Estate under the judgment or decree of a court of competent
jurisdiction, or for the enforcement of any other right as the Mortgagee shall deem
most effectual for such purpose, provided, that in the event of a sale, by
foreclosure or otherwise, of less than all of the Mortgage Estate, this Mortgage
shall continue as a Lien on, and security interest in, the remaining portion of the
Mortgage Estate; or
Β Β Β Β Β (z) exercise any or all of the remedies available to a secured party under the
applicable Uniform Commercial Code, including, without limitation:
Β Β Β Β Β (1) either personally or by means of a court appointed receiver, take
possession of all or any of the Fixtures and exclude therefrom the Mortgagor
and all persons claiming under the Mortgagor, and thereafter hold, store,
use, operate, manage, maintain and control, make repairs, replacements,
alterations, additions and improvements to and exercise all rights and
powers of the Mortgagor in respect of the Fixtures or any part thereof; if
the Mortgagee demands or attempts to take possession of the Fixtures in the
exercise of any rights hereunder, the Mortgagor shall promptly turn over and
deliver complete possession thereof to the Mortgagee;
Β Β Β Β Β (2) without notice to or demand upon the Mortgagor, make such payments
and do such acts as the Mortgagee may deem necessary to protect its security
interest in the Fixtures, including, without limitation, paying, purchasing,
contesting or compromising any encumbrance that is prior to or superior to
the security interest granted hereunder, and in exercising any such powers
or authority paying all expenses incurred in connection therewith;
Β Β Β Β Β (3) require the Mortgagor to assemble the Fixtures or any portion
thereof, at a place designated by the Mortgagee and reasonably convenient to
both parties, and promptly to deliver the Fixtures to the Mortgagee, or an
agent or representative designated by it; the Mortgagee, and its agents
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and representatives, shall have the right to enter upon the premises and
property of the Mortgagor to exercise the Mortgageeβs rights hereunder; and
Β Β Β Β Β (4) sell, lease or otherwise dispose of the Fixtures, with or without
having the Fixtures at the place of sale, and upon such terms and in such
manner as the Mortgagee may determine (and the Mortgagee or any Lender may
be a purchaser at any such sale).
Β Β Β Β Β Β Β Β Β Β (b) Appointment of Receiver. If a Default shall have occurred and be continuing, the
Mortgagee, to the maximum extent permitted by law, shall be entitled, as a matter of right, to the
appointment of a receiver of the Mortgage Estate, without notice or demand, and without regard to
the adequacy of the security for the Obligations or the solvency of the Mortgagor. The Mortgagor
hereby irrevocably consents to such appointment and waives notice of any application therefor. Any
such receiver or receivers shall have all the usual powers and duties of receivers in like or
similar cases and all the powers and duties of the Mortgagee in case of entry and shall continue as
such and exercise all such powers until the date of confirmation of sale of the Mortgage Estate,
unless such receivership is sooner terminated.
Β Β Β Β Β Β Β Β Β Β (c) Rents. If a Default shall have occurred and be continuing, the Mortgagor shall,
to the maximum extent permitted by law, pay monthly in advance to the Mortgagee, or to any receiver
appointed at the request of the Mortgagee to collect Rents, the fair and reasonable rental value
for the use and occupancy of the Property, the Improvements and the Fixtures or of such part
thereof as may be in the possession of the Mortgagor. Upon default in the payment thereof, the
Mortgagor shall vacate and surrender possession of the Property, the Improvements and the Fixtures
to the Mortgagee or such receiver, and upon a failure so to do may be evicted by summary
proceedings.
Β Β Β Β Β Β Β Β Β Β (d) Sale. In any sale under any provision of this Mortgage or pursuant to any
judgment or decree of court, the Mortgage Estate, to the maximum extent permitted by law, may be
sold in one or more parcels or as an entirety and in such order as the Mortgagee may elect, without
regard to the right of the Mortgagor or any person claiming under the Mortgagor to the marshalling
of assets. The purchaser at any such sale shall take title to the Mortgage Estate or the part
thereof so sold free and discharged of the estate of the Mortgagor therein, the purchaser being
hereby discharged from all liability to see to the application of the purchase money. Any person,
including Mortgagee or any Lender, may purchase at any such sale. Upon the completion of any such
sale by virtue of this SectionΒ 4.02 the Mortgagee shall execute and deliver to the purchaser an
appropriate instrument that shall effectively transfer all of the Mortgagorβs estate, right, title,
interest, property, claim and demand in and to the Mortgage Estate or portion thereof so sold, but
without any covenant or warranty, express or implied. The
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Mortgagee is hereby irrevocably appointed the attorney-in-fact of the Mortgagor in its name and
stead to make all appropriate transfers and deliveries of the Mortgage Estate or any portions
thereof so sold and, for that purpose, the Mortgagee may execute all appropriate instruments of
transfer, and may substitute one or more persons with like power, the Mortgagor hereby ratifying
and confirming all that said attorneys or such substitute or substitutes shall lawfully do by
virtue hereof. Nevertheless, the Mortgagor shall ratify and confirm, or cause to be ratified and
confirmed, any such sale or sales by executing and delivering, or by causing to be executed and
delivered, to the Mortgagee or to such purchaser or purchasers all such instruments as may be
advisable, in the judgment of the Mortgagee, for such purpose, and as may be designated in such
request. Any sale or sales made under or by virtue of this Mortgage, to the extent not prohibited
by law, shall operate to divest all the estate, right, title, interest, property, claim and demand
whatsoever, whether at law or in equity, of the Mortgagor in, to and under the Mortgage Estate, or
any portions thereof so sold, and shall be a perpetual bar both at law and in equity against the
Mortgagor and against any and all persons claiming or who may claim the same, or any part thereof,
by, through or under the Mortgagor. The powers and agency herein granted are coupled with an
interest and are irrevocable.
Β Β Β Β Β Β Β Β Β Β (e) Possession of Loan Instruments Not Necessary. All rights of action under the
Loan Instruments and this Mortgage may be enforced by the Mortgagee without the possession of the
Loan Instruments and without the production thereof at any trial or other proceeding relative
thereto.
Β Β Β Β Β Β Β Β Β Β SectionΒ 4.03. Application of Proceeds.
Β Β Β Β Β Β Β Β Β Β (a) Application of Proceeds Generally. The proceeds of any sale made either under
the power of sale hereby given or under a judgment, order or decree made in any action to foreclose
or to enforce this Mortgage, or of any monies held by the Mortgagee hereunder shall, to the maximum
extent permitted by law, be applied as provided in SectionΒ 7.02(b) of the Credit Agreement.
Β Β Β Β Β Β Β Β Β Β (b) Liability for Deficiencies. No sale or other disposition of all or any part of
the Mortgage Estate pursuant to SectionΒ 4.02 shall be deemed to relieve the Mortgagor of its
obligations under the Credit Agreement or any other Loan Instrument except to the extent the
proceeds thereof are applied to the payment of such obligations. Except as otherwise provided in
the Loan Instruments, if the proceeds of sale, collection or other realization of or upon the
Mortgage Estate are insufficient to cover the costs and expenses of such realization and the
payment in full of the Obligations, the Mortgagor shall remain liable for any deficiency.
Β Β Β Β Β Β Β Β Β Β SectionΒ 4.04. Right to Xxx. The Mortgagee shall have the right from time to time to
xxx for any sums required to be paid by the Mortgagor under the terms of this Mortgage as the
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same become due, without regard to whether or not the Obligations shall be, or have become, due and
without prejudice to the right of the Mortgagee thereafter to bring any action or proceeding of
foreclosure or any other action upon the occurrence of any Default existing at the time such
earlier action was commenced.
Β Β Β Β Β Β Β Β Β Β SectionΒ 4.05. Powers of the Mortgagee. The Mortgagee may at any time or from time to
time renew or extend this Mortgage or (with the agreement of the Mortgagor) alter or modify the
same in any way, or waive any of the terms, covenants or conditions hereof or thereof, in whole or
in part, and may release any portion of the Mortgage Estate or any other security, and grant such
extensions and indulgences in relation to the Obligations, or release any person liable therefor as
the Mortgagee may determine without the consent of any junior lienor or encumbrancer, without any
obligation to give notice of any kind thereto, without in any manner affecting the priority of the
Lien and estate of this Mortgage on or in any part of the Mortgage Estate, and without affecting
the liability of any other person liable for any of the Obligations.
Β Β Β Β Β Β Β Β Β Β SectionΒ 4.06. Remedies Cumulative.
Β Β Β Β Β Β Β Β Β Β (a) Remedies Cumulative. No right or remedy herein conferred upon or reserved to the
Mortgagee is intended to be exclusive of any other right or remedy, and each and every right and
remedy shall be cumulative and in addition to any other right or remedy under this Mortgage, or
under applicable law, whether now or hereafter existing; the failure of the Mortgagee to insist at
any time upon the strict observance or performance of any of the provisions of this Mortgage or to
exercise any right or remedy provided for herein or under applicable law, shall not impair any such
right or remedy nor be construed as a waiver or relinquishment thereof.
Β Β Β Β Β Β Β Β Β Β (b) Other Security. The Mortgagee shall be entitled to enforce payment and
performance of any of the obligations of the Mortgagor and to exercise all rights and powers under
this Mortgage or under any Loan Instrument or any laws now or hereafter in force, notwithstanding
that some or all of the Obligations may now or hereafter be otherwise secured, whether by mortgage,
deed of trust, pledge, Lien, assignment or otherwise; neither the acceptance of this Mortgage nor
its enforcement, whether by court action or pursuant to the power of sale or other powers herein
contained, shall prejudice or in any manner affect the Mortgageeβs right to realize upon or enforce
any other security now or hereafter held by the Mortgagee, it being stipulated that the Mortgagee
shall be entitled to enforce this Mortgage and any other security now or hereafter held by the
Mortgagee in such order and manner as the Mortgagee, in its sole discretion, may determine; every
power or remedy given by the Credit Agreement, this Mortgage or any of the other Loan Instruments
to the Mortgagee, or to which the Mortgagee is otherwise entitled, may be exercised, concurrently
or independently, from time
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to time and as often as may be deemed expedient by the Mortgagee, and the Mortgagee may pursue
inconsistent remedies.
Β Β Β Β Β Β Β Β Β Β SectionΒ 4.07. Waiver of Stay, Extension, Moratorium Laws; Equity of Redemption. To
the maximum extent permitted by law, the Mortgagor shall not at any time insist upon, or plead, or
in any manner whatever claim or take any benefit or advantage of any applicable present or future
stay, extension or moratorium law, that may affect observance or performance of the provisions of
this Mortgage; nor claim, take or insist upon any benefit or advantage of any present or future law
providing for the valuation or appraisal of the Mortgage Estate or any portion thereof prior to any
sale or sales thereof that may be made under or by virtue of SectionΒ 4.02; and the Mortgagor, to
the extent that it lawfully may, hereby waives all benefit or advantage of any such law or laws.
The Mortgagor for itself and all who may claim under it, hereby waives, to the maximum extent
permitted by applicable law, any and all rights and equities of redemption from sale under the
power of sale created hereunder or from sale under any order or decree of foreclosure of this
Mortgage and (if a Default shall have occurred) all notice or notices of seizure, and all right to
have the Mortgage Estate marshalled upon any foreclosure hereof. The Mortgagee shall not be
obligated to pursue or exhaust its rights or remedies as against any other part of the Mortgage
Estate and the Mortgagor hereby waives any right or claim of right to have the Mortgagee proceed in
any particular order.
ARTICLE 5
Miscellaneous
Β Β Β Β Β Β Β Β Β Β SectionΒ 5.01. Release by Mortgagee. Upon the termination of the Commitments under
and as defined in the Credit Agreement and the payment in full of the Obligations, the Mortgagee
shall release the Lien of this Mortgage, or upon the request of the Mortgagor, and at the
Mortgagorβs expense, assign this Mortgage without recourse to the Mortgagorβs designee, or to the
person or persons legally entitled thereto, by an instrument duly acknowledged in form for
recording.
Β Β Β Β Β Β Β Β Β Β SectionΒ 5.02. Notices. All notices, demands, consents, requests or other
communications (collectively, βnoticesβ) that are permitted or required to be given by any
party to the other hereunder shall be in writing and given in the manner specified in the Credit
Agreement.
Β Β Β Β Β Β Β Β Β Β SectionΒ 5.03. Amendments; Waivers; Etc. This Mortgage cannot be modified, changed or
discharged except by an agreement in writing, duly acknowledged in form for recording, signed by
the Mortgagor and the Mortgagee with the consent of the Lenders as
Mortgage
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provided in the Credit Agreement. For purposes hereof, a statement by the Mortgagee in any
modification or supplement to this Mortgage to the effect that such modification or supplement has
been consented to by the Lenders as provided in the Credit Agreement shall be conclusive evidence
of such consent and it shall not be necessary for a copy of such consent to be recorded with such
modification or supplement as a condition to such modification or supplement being recorded in the
appropriate real estate records.
Β Β Β Β Β Β Β Β Β Β SectionΒ 5.04. Successors and Assigns. This Mortgage applies to, inures to the
benefit of and binds the Mortgagor and the Mortgagee and their respective successors and assigns
and shall run with the Property.
Β Β Β Β Β Β Β Β Β Β SectionΒ 5.05. Captions. The captions or headings at the beginning of Articles,
Sections and paragraphs hereof are for convenience of reference and are not a part of this
Mortgage.
Β Β Β Β Β Β Β Β Β Β SectionΒ 5.06. Severability. If any term or provision of this Mortgage or the
application thereof to any person or circumstance shall to any extent be invalid or unenforceable,
the remainder of this Mortgage, or the application of such term or provision to persons or
circumstances other than those as to which it is invalid or unenforceable, shall not be affected
thereby, and each term and provision of this Mortgage shall be valid and enforceable to the maximum
extent permitted by law. If any portion of the Obligations shall for any reason not be secured by
a valid and enforceable Lien upon any part of the Mortgage Estate, then any payments made in
respect of the Obligations (whether voluntary or under foreclosure or other enforcement action or
procedure or otherwise) shall, for purposes of this Mortgage (except to the extent otherwise
required by applicable law) be deemed to be made (i)Β first, in respect of the portion of the
Obligations not secured by the Lien of this Mortgage, (ii)Β second, in respect of the portion of the
Obligations secured by the Lien of this Mortgage, but which Lien is on less than all of the
Mortgage Estate, and (iii)Β last, to the portion of the Obligations secured by the Lien of this
Mortgage, and which Lien is on all of the Mortgage Estate.
Β Β Β Β Β Β Β Β Β Β SectionΒ 5.07. Repayment of Secured Amount. The secured amount under this Mortgage
shall be reduced only by the last and final sums that the Mortgagor repays with respect to the
Obligations and shall not be reduced by any intervening repayments of the Obligations by the
Mortgagor. So long as the balance of the Obligations exceeds the secured amount under this
Mortgage, any payments and repayments of the Obligations by the Mortgagor shall not be deemed to be
applied against, or to reduce, the portion of the Obligations secured by this Mortgage.
Mortgage
Β
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Β Β Β Β Β Β Β Β Β Β IN WITNESS WHEREOF, this Mortgage has been duly executed by the Mortgagor as of the day and
year first above written.
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[NAME OF MORTGAGOR]
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By:Β Β |
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Name:Β Β |
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Mortgage
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[STATE/COMMONWEALTH] OF Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β )
: ss.:
COUNTY OF Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β )
On the Β Β Β Β Β day of Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β , 2010, before me, the undersigned, a notary public in and for said
[state/commonwealth], personally appeared Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β , personally known to me or
proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to
the within instrument, and acknowledged to me that he/she executed the same in his/her capacity and
that by his/her signature on the instrument the individual or the person upon behalf of which the
individual acted executed the instrument.
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[SEAL]
Mortgage
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SCHEDULE I
DESCRIPTION OF [LEASE
AND]32
PROPERTY
[That certain [lease/lease agreement] dated as of Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β ___, Β Β Β Β Β between the Mortgagor, as
lessee, and Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β , as lessor, [a memorandum of which is] recorded in volume Β Β Β Β Β at page Β Β Β Β Β of
the Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Records of Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β County, Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β on
Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β , Β Β Β Β Β Β Β Β Β Β , and the leasehold
estate created thereby affecting the following land and premises located in Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β County,
Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β :]33
[See attached legal description]
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Insert if mortgage is a leasehold mortgage |
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EXHIBIT F
to
Credit Agreement
dated as of AugustΒ 4, 2010
by and among
The GEO Group, Inc.,
as Borrower,
the lenders party thereto,
as Lenders,
and
BNP Paribas,
as Administrative Agent
FORM OF JOINDER AGREEMENT
Mortgage
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FORM OF JOINDER AGREEMENT
Β Β Β Β Β THIS JOINDER AGREEMENT, dated as of the Β Β Β Β Β day of Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β , 20Β Β Β Β Β (the
βAgreementβ), to the Collateral Agreement referred to below is entered into by and among
Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β , a corporation organized under the laws of Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β (the βNew Subsidiaryβ),
Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β , a corporation organized under the laws of Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β (the βPledgorβ), and BNP
PARIBAS, as administrative agent (the βAdministrative Agentβ). All capitalized terms used
and not defined herein shall have the meanings given thereto in the Credit Agreement or the
applicable Security Document referred therein.
Statement of Purpose
Β Β Β Β Β The GEO Group, Inc., the Lenders and the Administrative Agent are parties to the Credit
Agreement dated as of AugustΒ 4, 2010 (as supplemented hereby and as further amended, restated,
supplemented or otherwise modified, the βCredit Agreementβ). In connection with the Credit
Agreement, the Borrower, certain of its Subsidiaries and the Administrative Agent have also entered
into the Collateral Agreement referred to therein. In addition, the Borrower and the Restricted
Subsidiaries may from time to time be obligated to the Hedge Counterparties in respect of one or
more Hedging Agreements.
Β Β Β Β Β Pursuant to Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β .34 In connection with the Credit Agreement, the New
Subsidiary is required to execute, among other documents, a joinder agreement in order to become a
Grantor under the Collateral Agreement and the Pledgor is required to execute, among other things,
a joinder agreement, in order to pledge Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β percent (Β Β Β Β Β %) of the capital stock or other
equity interests of the New Subsidiary.
Β Β Β Β Β NOW THEREFORE, in consideration of the premises and other good and valuable consideration, the
parties hereto hereby agree as follows:
Β Β Β Β Β 1.01 Collateral Agreement Joinder.
Β Β Β Β Β Β Β Β Β Β (a) Joinder to the Collateral Agreement.
Β Β Β Β Β i) In order to secure the Credit Agreement in accordance with the terms
thereof, and to secure the payment and performance of all of the Obligations,
the New Subsidiary hereby grants to the Administrative Agent, for the ratable
benefit of itself and the other Secured Parties, a continuing security interest
in and to all of the New Subsidiaryβs right, title and interest in and to all
Collateral whether now or hereafter owned or acquired by the New Subsidiary or
in which the New Subsidiary now has or hereafter has or acquires any rights, and
wherever located (the βNew Collateralβ).
Β Β Β Β Β ii) The security interests are granted as security only and shall not
subject the Administrative Agent or any other Secured Party to, or transfer to
the Administrative Agent or any other Secured Party any obligation or liability,
or in any
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transaction relating to creation of New Subsidiary. |
Mortgage
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way affect or modify, any obligation or liability of the New Subsidiary with respect to any of the
New Collateral or any transaction in connection therewith.
Β Β Β Β Β iii) The New Subsidiary hereby agrees that it is a party to the Collateral
Agreement as if a signatory thereof on the Effective Date of the Credit
Agreement, and the New Subsidiary shall comply with all of the terms, covenants,
conditions and agreements and hereby makes each representation and warranty, in
each case set forth therein. The New Subsidiary hereby agrees that each
reference to a βGrantorβ or the βGrantorsβ in the Collateral Agreement and other
Loan Documents shall include the New Subsidiary. The New Subsidiary agrees that
βCollateralβ as used therein shall include all New Collateral pledged pursuant
hereto and the Collateral Agreement and βCollateral Agreementβ or βAgreementβ as
used therein shall mean the Collateral Agreement as supplemented hereby.
Β Β Β Β Β Β Β Β Β Β b) Filing Information and Perfection.
Β Β Β Β Β i) Attached hereto as Annex A are updated Schedules to the
Collateral Agreement revised to include all required information with respect to
the New Subsidiary.
Β Β Β Β Β ii) The New Subsidiary hereby agrees that it shall deliver to the
Administrative Agent such certificates or other documents and take such action
as the Administrative Agent shall reasonably request in order to effectuate the
terms hereof and the Collateral Agreement.
Β Β Β Β Β Β Β Β Β Β c) Additional Pledge.
Β Β Β Β Β i) [The Pledgor hereby confirms and reaffirms the security interest in the
Collateral granted to the Administrative Agent, for the ratable benefit of
itself and the other Secured Parties, under the Collateral Agreement and, as
additional collateral security for the prompt and complete payment when due
(whether at stated maturity, by acceleration or otherwise) of the Obligations
and in order to induce the Lenders to make their extensions of credit under the
Credit Agreement and to induce the Hedge Counterparties to make their extensions
of credit under the Hedging Agreements, the Pledgor hereby delivers to the
Administrative Agent, for the ratable benefit of itself and the other Secured
Parties, all of the issued and outstanding shares of capital stock of the New
Subsidiary listed on Annex B, together with all stock certificates,
options, or rights of any nature whatsoever which may be issued or granted by
the New Subsidiary in respect of such stock (the βAdditional Investment
Propertyβ; as used in the Collateral Agreement as supplemented hereby,
βInvestment Propertyβ shall be deemed to include the Additional Investment
Property) and hereby grants to the Administrative Agent, for the ratable benefit
of itself and the other Secured Parties, a first priority security interest in
the Additional Investment Property and all Proceeds thereof.] [The Pledgor
hereby confirms and reaffirms the security interest in the Collateral granted to
the Administrative Agent, for the ratable benefit of itself and the other
Secured Parties, under the Collateral Agreement and, as additional collateral
security for the prompt and complete payment when due (whether at stated
maturity, by acceleration or otherwise) of the Obligations and in order to
induce the Lenders to make their extensions of credit under the Credit Agreement
and to induce the Hedge Counterparties to make their extensions of credit under
the Hedging Agreements, the
Mortgage
Β
Β
Pledgor hereby grants to the Administrative Agent, for the ratable benefit of
itself and the other Secured Parties, a first priority security interest in the
entire partnership or membership interest of Pledgor (the βAdditional
Partnership/LLC Interestβ) in the New Subsidiary listed on Annex B
and all Proceeds thereof; as used in the Collateral Agreement as supplemented
hereby, βPartnership/LLC Interestsβ shall be deemed to include the Additional
Partnership/LLC Interest.]
Β Β Β Β Β ii) The Pledgor hereby represents and warrants, with respect to itself,
that the representations and warranties contained in ArticleΒ III of the
Collateral Agreement are true and correct on the date of this Agreement with
references therein to the [βInvestment Propertyβ to include the Additional
Investment Property] or [βPartnership/LLC Interestsβ to include the Additional
Partnership/LLC Interest], with references therein to the βSubsidiary Issuerβ to
include the New Subsidiary, and with references to the βGrantorβ to mean the
Pledgor.
Β Β Β Β Β Β Β Β Β Β d) Perfection. The Pledgor hereby agrees to deliver to the Administrative Agent such
certificates and other documents and take such other action as shall be reasonably requested by the
Administrative Agent in order to effectuate the terms hereof and the Collateral Agreement.
Β Β Β Β Β 2.01 Effectiveness. This Agreement shall become effective upon receipt by the
Administrative Agent of (i)Β an executed counterpart hereof, (ii)Β the Additional Investment Property
or the Additional Partnership/LLC Interest, as applicable, and the other agreements and documents
required to be delivered pursuant to SectionΒ 1.01 and (iii)Β any other agreement or document
required to be delivered in accordance with SectionΒ 5.09 of the Credit Agreement (including,
without limitation, any other agreement or document required to be delivered in connection with any
Security Document).
Β Β Β Β Β 3.01 General Provisions.
Β Β Β Β Β Β Β Β Β Β (a) Acknowledgement. The New Subsidiary hereby acknowledges that it has received a
copy of the Loan Documents and that it has read and understands the terms thereof.
Β Β Β Β Β Β Β Β Β Β (b) Limited Effect. Except as supplemented hereby, each Loan Document shall continue
to be, and shall remain, in full force and effect. This Agreement shall not be deemed (i)Β 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 Document or (ii)Β to prejudice any right or rights which the
Administrative Agent or any other Secured Party may now have or may have in the future under or in
connection with the Credit Agreement or the other Loan Documents or any of the instruments or
agreements referred to therein, as the same may be amended or modified from time to time.
Β Β Β Β Β Β Β Β Β Β (c) Costs and Expenses. The New Subsidiary hereby agrees that it shall pay or cause
to be paid all of its reasonable and customary out-of-pocket costs and expenses incurred by the
Administrative Agent in connection with the preparation, negotiation and execution of this
Agreement including, without limitation, the reasonable fees and disbursements of counsel.
Β Β Β Β Β Β Β Β Β Β (d) Counterparts. This Agreement may be executed by one or more of the parties hereto
in any number of separate counterparts (including by telecopy) and all of said counterparts taken
together shall be deemed to constitute one and the same instrument.
Β Β Β Β Β Β Β Β Β Β (e) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
Mortgage
Β
Β
NEW YORK (INCLUDING, WITHOUT LIMITATION, SECTION 5-1401 AND SECTION 5-1402 OF THE GENERAL
OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT REFERENCE TO THE CONFLICTS OF LAW PRINCIPLES
THEREOF.
[Signature Page Follows]
Mortgage
Β
Β
Β Β Β Β Β IN WITNESS WHEREOF the undersigned hereby causes this Agreement to be executed and delivered
as of the date first above written.
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NEW SUBSIDIARY:
[NEW SUBSIDIARY]
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By:Β Β |
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Name:Β Β |
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Title:Β Β |
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PLEDGOR:
[PLEDGOR]
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By:Β Β |
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Name:Β Β |
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Title:Β Β |
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ADMINISTRATIVE AGENT:
BNP PARIBAS,
as Administrative Agent
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By:Β Β |
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Name:Β Β |
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Title:Β Β |
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By:Β Β |
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Name:Β Β |
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Title:Β Β |
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EXHIBIT G
to
Credit Agreement
dated as of AugustΒ 4, 2010
by and among
The GEO Group, Inc.,
as Borrower,
the lenders party thereto,
as Lenders,
and
BNP Paribas,
as Administrative Agent
FORM OF OPINION OF COUNSEL TO THE BORROWER
Β
Β
EXHIBIT H
to
Credit Agreement
dated as of AugustΒ 4, 2010
by and among
The GEO Group, Inc.,
as Borrower,
the lenders party thereto,
as Lenders,
and
BNP Paribas,
as Administrative Agent
FORM OF OPINION OF SPECIAL COUNSEL
Β
Β
EXHIBIT I
to
Credit Agreement
dated as of AugustΒ 4, 2010
by and among
The GEO Group, Inc.,
as Borrower,
the lenders party thereto,
as Lenders,
and
BNP Paribas,
as Administrative Agent
FORM OF LENDER ADDENDUM
Β
Β
Form of Lender Addendum
Β Β Β Β Β Β Β Β Β Β Reference is made to the Credit Agreement dated as of AugustΒ 4, 2010 (as amended, restated or
otherwise modified, the βCredit Agreementβ), by and among THE GEO GROUP, INC., a Florida
corporation (the βBorrowerβ), the lenders who are or may become a party thereto, as
Lenders, and BNP PARIBAS, as Administrative Agent. Capitalized terms used and not otherwise
defined herein shall have the meaning assigned thereto in the Credit Agreement.
Β Β Β Β Β Β Β Β Β Β The undersigned Person by executing this Lender Addendum shall be deemed to have executed a
counterpart of the Credit Agreement.
Β Β Β Β Β Β Β Β Β Β By executing this Lender Addendum, the undersigned Person hereby agrees (a)Β to the terms of
the Credit Agreement and (b)Β to become a party thereto as a [Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β ] Lender with a [Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β ]
Loan Commitment in the amount set forth below.
Β Β Β Β Β Β Β Β Β Β This Lender Addendum shall be construed in accordance with and governed by the law of the
State of New York. This Lender Addendum may be executed by one or more of 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.
Β Β Β Β Β Β Β Β Β Β IN WITNESS WHEREOF, the parties hereto have caused this Lender Addendum to be duly executed
and delivered by their proper and duly authorized officers as of this [Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β ] day of August, 2010.
[Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β ] CommitmentΒ Β Β Β Β Β Β Β Β Β $[Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β ]
[Signature pages to follow]
Β
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[Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β ], as Lender
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By:Β Β |
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Name:Β Β |
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Title:Β Β |
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By:Β Β |
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Name:Β Β |
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Title:Β Β |
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Accepted and agreed:
THE GEO GROUP, INC.
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By:Β Β |
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Name:Β Β |
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Title:Β Β |
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BNP PARIBAS,
as Administrative Agent
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By:Β Β |
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Name:Β Β |
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Title:Β Β |
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By:Β Β |
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Name:Β Β |
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Title:Β Β |
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SCHEDULE 3.06
to
Disclosure Supplement
Dated as of AugustΒ 4, 2010
Litigation
The Borrower and its Subsidiaries are currently involved in various actions, suits and/or
proceedings. Except for the matters listed below, none of the actions, suits and/or proceedings in
which the Borrower or its Subsidiaries are currently involved could, individually, as of the
Closing Date, result in a Material Adverse Effect:
1. In JuneΒ 2004, the Borrower received notice of a third-party claim for property damage
incurred during 2002 and 2001 at several detention facilities that the Borrowerβs Australian
subsidiary formerly operated pursuant to its discontinued operation. The claim relates to
property damage caused by detainees at the detention facilities. The notice was given by the
Australian governmentβs insurance provider and did not specify the amount of damages being
sought. In MayΒ 2005, the Borrower received additional correspondence indicating that the
insurance provider still intends to pursue the claim against the Borrowerβs Australian
subsidiary. Although the claim is in the initial stages and the Borrower is still in the
process of fully evaluating its merits, the Borrower believes that it has defenses to the
allegations underlying the claim and intends to vigorously defend the Borrowerβs rights with
respect to this matter. While the insurance provider has not quantified its damage claim and
the outcome of this matter discussed above cannot be predicted with certainty, based on
information known to date, and managementβs preliminary review of the claim, the Borrower
believes that, if settled unfavorably, this matter could have a material adverse effect on
the Borrowerβs financial condition, results of operations and cash flows. The Borrower is
uninsured for any damages or costs that it may incur as a result of this claim, including
the expenses of defending the claim. The Borrower has accrued a reserve related to this
claim based on its estimate of the most probable costs that may be incurred based on the
facts and circumstances known to date, and the advice of its legal counsel.
2. During the fourth fiscal quarter of 2009, the Internal Revenue Service (IRS)Β completed
its examination of our U.S. federal income tax returns for the years 2002 through 2005.
Following the examination, the IRS notified us that it proposes to disallow a deduction that
we realized during the 2005 tax year. Due to our receipt of the proposed IRS audit
adjustment for the disallowed deduction, we have reassessed the probability of potential
settlement outcomes with respect to the proposed adjustment, which is now under review by
the IRSβs appeals division. Based on this reassessment, we have provided an additional
accrual of $4.9Β million during the fourth quarter of 2009. We have appealed this proposed
disallowed deduction with
the IRSβs appeals division and believe we have
Β
Β
valid defenses to the IRSβs position.
However, if the disallowed deduction were to be sustained in full on appeal, it could result
in a potential tax exposure to us of $15.4Β million. We believe in the merits of our position
and intend to defend our rights vigorously, including our rights to litigate the matter if
it cannot be resolved favorably at the IRSβs appeals level. If this matter is resolved
unfavorably, it may have a material adverse effect on our financial position, results of
operations and cash flows.
Β Β Β Β Β 3.Β We are currently under examination by the Internal Revenue Service for our U.S. income tax
returns for fiscal years 2006 through 2008 and currently expect this examination to be concluded in
2010. Based on the status of the audit to date, we do not currently expect the outcome of the audit
to have a material adverse impact on our financial condition, results of operation or cash flows.
Β Β Β Β Β 4.Β On AprilΒ 27, 2010, a putative stockholder class action was filed in the District Court for
Xxxxxx County, Texas by Xxxx Xxxxxx against Cornell, members of the Cornell board of directors,
individually, and GEO. The plaintiff filed an amended complaint on MayΒ 28, 2010. The amended
complaint alleges, among other things, that the Cornell directors, aided and abetted by Cornell and
GEO, breached their fiduciary duties in connection with the merger. Among other things, the amended
complaint seeks to enjoin Cornell, its directors and GEO from completing the merger and seeks a
constructive trust over any benefits improperly received by the defendants as a result of their
alleged wrongful conduct. The parties have reached a settlement in principle, subject to
confirmatory discovery, preparation and execution of a formal stipulation of settlement, final
court approval of the settlement and dismissal of the action with prejudice.
Β
Β
SCHEDULE 3.14 PART A
to
Disclosure Supplement
Dated as of AugustΒ 4, 2010
Material Agreements
1995 Registered Long Term FRN Note Program Instrument Australasian Correctional Investment Limited,
as the Issuer, and AMP Investment Services Pty Limited, as FRN Trustee, and AMP Investment Services
Pty Limited, as Security Trustee, for up to A$55,500,000
Revolving Credit Facility, dated JulyΒ 17 2009, between Australasian Correctional Investment Limited
and Australia and New Zealand Banking Group Limited, for up to A$3,000,000
Revolving Credit Facility, dated OctoberΒ 20, 2009, between The GEO Group Australia Pty Limited and
Australia and New Zealand Banking Group Limited, for up to A$8,029,000
2000 Common Terms Agreement between BoE Merchant Bank (a division of BoE Bank Limited), Firstrand
Bank Limited, Kensani Consortium (Proprietary) Limited, South African Custodial Services (Louis
Trichardt) (Proprietary) Limited, and Rand Merchant Bank Limited, for up to R 398,426,478.00
Guarantee & Put Agreement Between The Geo Group, Inc. (formerly Wackenhut Corrections Corporation)
& South African Custodial Holdings, Ltd. (formerly Wackenhut Corrections Corp. South Africa Pty
Limited) & BOE Merchant Bank & South African Custodial Services (Pty) Limited for up to R
30,000,000.00
Guarantee & Put Agreement Between The Geo Group, Inc. & South African Custodial Holdings, Ltd. &
Firstrand Bank Limited & South African Custodial Services (Pty) Limited for up to R 30,000,000.00
Guarantee By South African Custodial Holdings, Ltd. in favor of Rand Merchant Bank Limited
representing a performance guarantee
Corporate Guarantee by The Geo Group, Inc. in favor of South African Custodial Services (Pty)
Limited, for up to R 20,000,000
Corporate Guarantee entered into by The Geo Group, Inc. in favor of the Trustee for the time being
of the South African Custodial Services Security Trust for R 8,422,404 subject to indexed annual
increases
Β
Β
Indemnification Agreement, dated JuneΒ 20, 1996, between Miramichi Youth Centre Management Inc. as
Trustee for the New Brunswick Youth Centre Trust and Canadian Correctional Management Inc., (fka.
Wackenhut Corrections Canada Inc.) for up to Canadian $2,500,000
Letter of Credit of Australasian Correctional Investment Ltd. in favor of Department of Justice of
Victoria issued by ANZ Banking Group Ltd in the amount of A$3,000,000.00
Letter of Credit of The GEO Group Australia Pty Ltd. in favor of Department of Corrective Services
NSW issued by ANZ Banking Group Ltd in the amount of A$4,000,000
Letter of Credit of The GEO Group Australia Pty Ltd in favor of The Department of Corrective
Services (Qld) issued by ANZ Banking Group Ltd in the amount of A$2,000,000
Loan by The
GEO Group Inc. to South African Custodial Holdings Pty. Ltd., in the amount of
R23,725,000
The GEO Group, Inc. 7 3/4 Senior Notes due 2017 issued on OctoberΒ 7, 2009 in the amount of
$250,000,000
Loan by Canadian Correctional Management, Inc. to The GEO Group, Inc., in the amount of C$1,800,000
Loan by Correctional Services Corporation to CSC of Tacoma, LLC, in the amount of $8,000,000
Loan by Correctional Services Corporation to South Texas Local Development Corporation, in the
amount of $5,000,000
Loan by The GEO Group, Inc. to Just Care, Inc., in the amount of $14,500,000
South Texas Detention Complex Local Development Corporation Taxable Revenue Bonds issued AugustΒ 1,
2004, with $32,105,000 outstanding
CSC of Tacoma, LLC Taxable Revenue Bonds issued OctoberΒ 1, 2003 with $31,605,000 outstanding
The GEO Group Capital Lease of Arizona State Prison Phoenix-West from Correctional Services
Corporation commencing NovemberΒ 4, 2005 with $7,738,750 outstanding
The GEO Group Capital Lease of Arizona State Prison Xxxxxxxx-West from Correctional Services
Corporation commencing NovemberΒ 4, 2005 with $9,483,333 outstanding
Β
Β
SCHEDULE 3.14 PART B
to
Disclosure Supplement
Dated as of AugustΒ 4, 2010
Liens
FormΒ UCC-1 Financing Statement, filed SeptemberΒ 15, 2005, File No.Β 52865492 by GEO RE Holdings
LLC as Debtor, in favor of BNP Paribas as Secured Party.
FormΒ UCC-1 Financing Statement, filed JuneΒ 27, 2003, File No.Β 31645160 by Correctional Services
Corporation as Debtor, in favor of U.S. Bank National Association as Bond Trustee under
Indenture of Trust dated as of JuneΒ 1, 2003 as Secured Party.
FormΒ UCC-1 Financing Statement, filed SeptemberΒ 24, 2004, File No.Β 42688978 by Correctional
Services Corporation as Debtor, in favor of U.S. Bank National Association as Secured Party.
FormΒ UCC-1 Financing Statement, filed AprilΒ 17, 2006, File No.Β 61388693 by Correctional Services
Corporation as Debtor, in favor of U.S. Bank National Association and ACA Financial Guaranty
Corporation as Secured Parties.
FormΒ UCC-1 Financing Statement, filed SeptemberΒ 15, 2005, File No.Β 52865468 by Correctional
Services Corporation as Debtor, in favor of BNP Paribas as Secured Party.
FormΒ UCC-1 Financing Statement, filed JanuaryΒ 24, 2007, File No.Β 20070314558 by GEO Holdings I,
Inc. as Debtor, in favor of BNP Paribas as Secured Party.
FormΒ UCC-1 Financing Statement, filed JanuaryΒ 24, 2007, File No.Β 20070316405 by CPT Operating
Partnership L.P. as Debtor, in favor of BNP Paribas as Secured Party.
FormΒ UCC-1 Financing Statement, filed JanuaryΒ 24, 2007, File No.Β 20070316561 by CPT Limited
Partner LLC as Debtor, in favor of BNP Paribas as Secured Party.
FormΒ UCC-1 Financing Statement, filed JanuaryΒ 24, 2007, File No.Β 20070316348 by Correctional
Properties Prison Finance LLC as Debtor, in favor of BNP Paribas as Secured Party.
FormΒ UCC-1 Financing Statement, filed JanuaryΒ 24, 2007, File No.Β 20070314368 by Public
Properties Development and Leasing LLC as Debtor, in favor of BNP Paribas as Secured Party.
Β
Β
FormΒ UCC-1 Financing Statement, filed JanuaryΒ 24, 2007, File No.Β 20070316298 by GEO Acquisition
II, Inc. as Debtor, in favor of BNP Paribas as Secured Party.
Mortgage of Land of Australasian Correctional Investment Ltd., created OctoberΒ 12, 1995, in
favor of AMP Investment Services Pty. Ltd.
Β
Β
SCHEDULE 3.16 PART A
to
Disclosure Supplement
Dated as of AugustΒ 4, 2010
Subsidiaries
Β |
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Β |
Β |
Jurisdiction of |
Β |
Jurisdiction(s) in Which Qualified |
Entity Name |
Β |
Organization |
Β |
to do Business |
The GEO Group, Inc.
|
Β |
Florida
|
Β |
All 50 States, Washington D.C. and Puerto
Rico |
GEO International Holdings, Inc.
|
Β |
Delaware
|
Β |
Delaware |
GEO RE Holdings LLC
|
Β |
Delaware
|
Β |
Delaware |
WCC Financial, Inc.
|
Β |
Delaware
|
Β |
Delaware |
WCC Development, Inc.
|
Β |
Florida
|
Β |
Florida, Utah, Massachusetts, New Mexico,
New Jersey, Wisconsin, New Hampshire,
Tennessee, Arizona, Minnesota |
WCC/FL/01, Inc.
|
Β |
Florida
|
Β |
Florida |
WCC/FL/02, Inc.
|
Β |
Florida
|
Β |
Florida |
GEO Design Services, Inc.
|
Β |
Florida
|
Β |
Florida |
GEO Care, Inc.
|
Β |
Florida
|
Β |
All 50 States except New York and Michigan |
The GEO Group UK Ltd.
|
Β |
United Kingdom
|
Β |
United Kingdom |
Premier Custodial Development Ltd.
|
Β |
United Kingdom
|
Β |
United Kingdom |
South African Custodial Holdings Pty Ltd.
|
Β |
South Africa
|
Β |
South Africa |
GEO NZ Limited
|
Β |
New Zealand
|
Β |
New Zealand |
The GEO Group Australasia Pty, Ltd.
|
Β |
Australia
|
Β |
Australia |
GEO Australasia Pty, Ltd.
|
Β |
Australia
|
Β |
Australia |
The GEO Group Australia Pty, Ltd.
|
Β |
Australia
|
Β |
Australia |
Premier Employment Services, Ltd.
|
Β |
Australia
|
Β |
Australia |
Australasian Correctional Investments, Ltd.
|
Β |
Australia
|
Β |
Australia |
Pacific Rim Employment Pty, Ltd.
|
Β |
Australia
|
Β |
Australia |
Strategic Healthcare Solutions Pty, Ltd.
|
Β |
Australia
|
Β |
Australia |
Wackenhut Corrections Corporation N.V.
|
Β |
Curacao
|
Β |
Curacao |
Canadian Correctional Management, Inc.
|
Β |
Canada
|
Β |
Canada |
Miramichi Youth Centre Management, Inc.
|
Β |
Canada
|
Β |
Canada |
Wackenhut Corrections Puerto Rico, Inc.
|
Β |
Puerto Rico
|
Β |
Puerto Rico |
Correctional Services Corporation
|
Β |
Delaware
|
Β |
Delaware, Florida, Mississippi, New York,
Texas, Washington, Wyoming, Georgia,
Maryland, Virginia, Oklahoma, Arkansas,
Illinois and Louisiana |
CSC of Tacoma, LLC
|
Β |
Delaware
|
Β |
Delaware and Washington, D.C. |
GEO Acquisition II, Inc.
|
Β |
Delaware
|
Β |
Delaware |
CPT Limited Partner, LLC
|
Β |
Delaware
|
Β |
Delaware |
CPT Operating Partnership L.P.
|
Β |
Delaware
|
Β |
California, Colorado, Delaware, Florida,
Louisiana, New Jersey, New Mexico,
New York, Oklahoma and Texas |
Β
Β
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Jurisdiction of |
Β |
Jurisdiction(s) in Which Qualified |
Entity Name |
Β |
Organization |
Β |
to do Business |
Correctional Properties Prison Finance LLC
|
Β |
Delaware
|
Β |
Delaware |
Public Properties Development and Leasing LLC
|
Β |
Delaware
|
Β |
Delaware, Colorado |
GEO Holdings I, Inc.
|
Β |
Delaware
|
Β |
Delaware |
Just Care, Inc.
|
Β |
Delaware
|
Β |
Delaware, South Carolina |
GEO Transport, Inc.
|
Β |
Florida
|
Β |
Florida, Arizona, California, Colorado,
Illinois, Louisiana, Texas, Washington,
New York |
GEO Acquisition III, Inc.
|
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Delaware
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Delaware |
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SCHEDULE 3.16 PART A
to
Disclosure Supplement
Dated as of AugustΒ 4, 2010
Subsidiaries and Ownership
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Shareholders and/or |
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Members and Shares |
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and/or Percentage |
Entity Name |
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Capitalization |
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Interests Owned |
The GEO Group, Inc. (βGEOβ)
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90,000,000 shares
of common stock,
par value $.01 per
share,
68,917,253
shares issued,
48,963,425
shares outstanding
at 7/29/10.
19,953,828 shares
are held in
treasury;
30,000,000 shares
of preferred stock,
par value $.01 per
share, no shares
issued and
outstanding at
7/29/10;
Stock options to
purchase 1,560,262
shares of common
stock issued and
outstanding at
7/29/10.
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See Proxy
Statement, dated
JulyΒ 4, 2010. |
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GEO International Holdings, Inc.
|
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100 shares of
common stock
authorized, 100
shares issued;
100 shares of
preferred stock
authorized, 100
shares issued
|
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GEO owns 100% |
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GEO RE Holdings LLC(*)
|
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N/A
|
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GEO owns 100% |
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WCC Financial, Inc.
|
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3,000 shares of
common stock
authorized/1,000
shares issued
|
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GEO owns 100% |
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WCC Development, Inc.
|
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100,000 shares of
common stock
authorized/100,000
shares issued
|
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GEO owns 100% |
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WCC/FL/01, Inc.
|
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100,000 shares of
common stock
authorized/100,000
shares issued
|
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GEO owns 100% |
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WCC/FL/02, Inc.
|
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100,000 shares of
common stock
authorized/100,000
shares issued
|
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GEO owns 100% |
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GEO Design Services, Inc.
|
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100,000 shares of
common stock
authorized/100,000
shares issued
|
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GEO owns 100% |
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GEO Care, Inc. (*)
|
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100,000 shares of
common stock
authorized/100,000
shares issued
|
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GEO owns 100% |
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The GEO Group UK Ltd.
|
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1,000,000 shares of
common stock
authorized/125,002
shares issued
|
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GEO owns 100% |
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South African Custodial Holdings Pty
Ltd.
|
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1 share of common
stock authorized/1
share issued
|
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GEO owns 100% |
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The GEO Group Australasia Pty, Ltd.
|
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100,000,000 shares
of common stock
authorized/6,840,056
shares issued
|
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GEO owns 100% |
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GEO Australasia Pty, Ltd.
|
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1,000,000 shares of
common stock
|
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The GEO Group |
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Shareholders and/or |
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Members and Shares |
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and/or Percentage |
Entity Name |
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Capitalization |
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Interests Owned |
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authorized/2 shares
issued
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Australasia β 100% |
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The GEO Group Australia Pty, Ltd.
|
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1,000,000 shares of
common stock
authorized/100,000
shares issued
|
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GEO Australasia β
100% |
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Premier Employment Services, Ltd.
|
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1 share of common
stock authorized/1
share issued
|
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The GEO Group
Australia β 100% |
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Australasian Correctional Investments,
Ltd.
|
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100,000,000 shares
of common stock
authorized/5,440,504
shares issued
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The GEO Group
Australasia β 100% |
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Pacific Rim Employment Pty, Ltd.
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1 share of common
stock authorized/1
share issued
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The GEO Group
Australasia β 100% |
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Strategic Healthcare Solutions Pty, Ltd.
|
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1 share of common
stock authorized/1
share issued
|
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The GEO Group
Australia β 100% |
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Wackenhut Corrections Corporation N.V.
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100 shares of
common stock
authorized/20
shares issued at
the time of
incorporation on
11/8/99
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GEO owns 100% |
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Canadian Correctional Management, Inc.
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Unlimited shares of
common stock
authorized/100
shares issued
|
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GEO owns 100% |
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Miramichi Youth Centre Management, Inc.
|
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Unlimited shares of
common stock
authorized/100
shares issued
|
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GEO owns 100% |
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Wackenhut Corrections Puerto Rico, Inc.
|
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65,000 shares of
common stock
authorized/65,000
shares issued
|
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GEO owns 100% |
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Correctional Services Corporation
(βCSCβ) (*)
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1,000 shares of
common stock
authorized/100
shares issued
|
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GEO owns 100% |
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CSC of Tacoma, LLC
|
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N/A
|
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CSC owns 100% |
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GEO Acquisition II, Inc. (*)
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1,000 shares of
common stock
authorized/1,000
shares issued
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GEO Holdings I,
Inc. owns 100% |
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CPT Limited Partner, LLC (*)
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N/A
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GEO Acquisition II,
Inc. owns 100% |
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CPT Operating Partnership L.P. (*)
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N/A
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CPT Limited
Partner, LLC 1%
limited partner;
GEO Acquisition II,
Inc. 98% limited
partner and 1%
general partner |
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Correctional Properties Prison Finance
LLC (*)
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N/A
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CPT Operating
Partnership L.P.
owns 100% |
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Public Properties Development and
Leasing LLC (*)
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N/A
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CPT Operating
Partnership L.P.
owns 100% |
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GEO Holdings I, Inc. (*)
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3,000 shares of
common stock
authorized/3,000
shares issued
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GEO owns 100% |
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Just Care, Inc. (*)
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10,000,000 shares
of common stock
authorized/6,195,592
shares issued
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GEO Care: 6,193,592
shares
*
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Confidential terms omitted and provided
separately to the Securities and Exchange Commission. |
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Shareholders and/or |
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Members and Shares |
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and/or Percentage |
Entity Name |
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Capitalization |
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Interests Owned |
GEO Transport, Inc. (*)
|
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1,000 shares of
common stock
authorized/1,000
shares issued
|
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GEO owns 100% |
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GEO Acquisition III, Inc. (*)
|
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1,000 shares of
common stock
authorized/1,000
shares issued
|
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GEO owns 100% |
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(*) |
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Restricted Subsidiary |
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SCHEDULE 3.16 PART B
to
Disclosure Supplement
Dated as of AugustΒ 4, 2010
Investments
Investment
in Just Care, Inc by GEO Care, Inc in the amount of *
Investment by The GEO Group, Inc. in South African Custodial Services, Pty. Ltd., in the amount of
*
Investment by The GEO Group, Inc. in Australian Correctional Management, in the amount of
*
Investment
by The GEO Group, Inc. in Canadian Correctional Management, in the amount of *
Investment by The GEO Group, Inc. in Correctional Services Corporation, in the amount of
*
Investment
in CentraCore Properties Trust *
Investment
by The GEO Group, Inc. in The GEO Group UK Ltd. in the amount of *
Advance by
The GEO Group, Inc. to WCC Financial, Inc., in the amount of *
Loan by
Correctional Services Corporation to CSC of Tacoma, LLC, in the amount of *
Loan by Correctional Services Corporation to South Texas Local Development Corporation, in the
amount of *
Loan by
The GEO Group, Inc. to Just Care, Inc., in the amount of *
Loan by The GEO Group, Inc. to South Africa Custodial Holdings Pty. Ltd., in the amount of
*
Loan by Canadian Correctional Management, Inc. to The GEO Group, Inc., in the amount of CAN
*
Investment
in Kensami Corrections (Pty) Ltd., in the amount of *
Certified Securities Held by Grantors
Securities Accounts (including cash management accounts that are Investment Property) and
Uncertified Securities Held by Grantors:
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Confidential terms omitted and provided
separately to the Securities and Exchange Commission. |
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Financial Institution |
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Account Number |
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Address of Financial Institution |
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Account Purpose |
*
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*
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*
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Investment Account |
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*
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*
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*
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Investment Account |
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* |
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Confidential terms omitted and provided
separately to the Securities and Exchange Commission. |
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SCHEDULE 3.17
to
Credit Agreement
Dated as of AugustΒ 4, 2010
Real Estate Owned
Xxxxxxxxx County Correctional Facility
X.X. Xxx 000
Xxxxx Xxxxxxx 00
Xxxxx Xxxx, XX 00000
Estimated Value *
Owner: The GEO Group, Inc.
*Subject to Mortgage
**Located within Flood Zone
North Lake Correctional Facility
0000 Xxxx 00xx Xxxxxx
Xxxxxxx, XX 00000
Estimated Value *
Owner: The GEO Group, Inc.
*Subject to Mortgage
**Located within Flood Zone
Rivers Correctional Institution
000 Xxxxxxx Xxxxxxx Xxxx
Xxxxxx, XX 00000
Estimated Value *
Owner: The GEO Group, Inc.
*Subject to Mortgage
**Located within Flood Zone
Val Verde Correctional Facility
000 XX 0000 Xxxxxxxx Xxxx
Xxx Xxx, XX 00000
Estimated Value *
Owner: The GEO Group, Inc.
*Subject to Mortgage
**Located within Flood Zone
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Confidential terms omitted and provided
separately to the Securities and Exchange Commission. |
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Central Valley Modified Community Correctional Facility
000 Xxxxxx Xxxxxx
XxXxxxxxx, XX 00000
Estimated Value *
Owner: CPT Operating Partnership, L.P.
**Located within Flood Zone
Golden State Modified Community Correctional Facility
000 Xxxxxxxx Xxxx
XxXxxxxxx, XX 00000
Estimated Value *
Owner: CPT Operating Partnership, L.P.
*Subject to Mortgage
**Located within Flood Zone
Desert View Modified Community Correctional Facility
P.O. Box 3000
00000 Xxxxxx Xxxx
Xxxxxxxx, XX 00000
Estimated Value *
Owner: CPT Operating Partnership, L.P.
*Subject to Mortgage
**Located within Flood Zone
Mesa Verde Modified Community Correctional Facility
000 Xxxxxx Xxxxx Xxxxxxx
Xxxxxxxxxxx, XX
Estimated Value *
Owner: CPT Operating Partnership, X.X.
XxXxxxxxx Community Correctional Facility
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Mailing: |
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Site: |
X.X. Xxx 000 |
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000 Xxxxxx Xxxxxx |
XxXxxxxxx, XX 00000-0000 |
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XxXxxxxxx, XX 00000 |
Estimated Value *
Owner: CPT Operating Partnership, L.P.
**Located within Flood Zone
Xxxxxx County Correctional Center
000 Xxxxxxxx Xxxxxx
Xxxxxx Xxxx, XX 00000
Estimated Value *
Owner: CPT Operating Partnership, L.P.
*Subject to Mortgage
**Located within Flood Zone
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* |
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Confidential terms omitted and provided
separately to the Securities and Exchange Commission. |
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Xxxxxx Correctional Facility
0000 Xxxxx Xxxx Xxxxxx Xxxxx Xxxx
Xxxxxx, XX 00000
Estimated Value *
Owner: CPT Operating Partnership, L.P.
*Subject to Mortgage
**Located within Flood Zone
Aurora/I.C.E. Processing Center
00000 Xxxx 00xx Xxxxxx
Xxxxxx, XX 00000
Estimated Value *
Owner: CPT Operating Partnership, L.P.
*Subject to Mortgage
**Located within Flood Zone
Queens Private Correctional Facility
000-00 000xx Xxxxxx
Xxxxxxx, XX 00000
Estimated Value *
Owner: CPT Operating Partnership, L.P.
*Subject to Mortgage
**Located within Flood Zone
LaSalle Correctional Facility
000 Xxxx Xxxx Xxxx
Xxxx, XX
Estimated Value *
Owner: CPT Operating Partnership, L.P.
*Subject to Mortgage
**Located within Flood Zone
Broward Transitional Center
0000 Xxxxx Xxxxxxxxx Xxxx
Xxxxxxx Xxxxx, XX 00000
Estimated Value *
Owner: The GEO Group, Inc.
*Subject to Mortgage
**Located within Flood Zone
Rio Grande Detention Center
0000 Xxx Xxx Xxxx.
Xxxxxx, XX 00000
Estimated Value *
Owners: The GEO Group, Inc.
*Subject to Mortgage
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* |
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Confidential terms omitted and provided
separately to the Securities and Exchange Commission. |
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Dessert Sands Correctional Facility
Adelanto, CA
Owner: The GEO Group, Inc.
*Subject to Mortgage
Xxxxxxx Xxxx
000-000 Xxxxxxx Xxxxxx
Xxxxxx, XX
Estimated Value * (as is without addition)
Owner: CPT Operating Partnership, L.P.
*Subject to Mortgage
OTHER REAL ESTATE:
Industrial Building
000-00 000xx Xxxx
Xxxxxxxxxxx Xxxxxxx, XX 00000
Estimated Value *
Owner: The GEO Group, Inc.
**Located within Flood Zone
VACANT LAND:
*
160 Acres
*
Estimated Value *
Owner: The GEO Group, Inc.
23 Acres
*
Estimated Value *
Owner: The GEO Group, Inc.
*
*
Estimated Value *
Owner: The GEO Group, Inc.
6 Acres
*
*
Estimated Value *
Owner: The GEO Group, Inc.
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* |
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Confidential terms omitted and provided
separately to the Securities and Exchange Commission. |
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California
40-Acre Land Purchase
*
Assessors Parcel *
Estimated Value *
Owner: The GEO Group, Inc.
4.4 Acres
*
*
Estimated Value *
Owner: The GEO Group, Inc.
4.3 Acres
*
*
Estimated Value *
Owner: The GEO Group, Inc.
11.1 Acres
*
*
Estimated Value *
Owner: The GEO Group, Inc.
10.9 Acres
*
*
Estimated Value *
Owner: The GEO Group, Inc.
*
34 Acres
*
*
Estimated Value *
Owner: The GEO Group, Inc.
70 Acres
*
*
Estimated Value *
Owner: CPT Operating Partnership, L.P.
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* |
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Confidential terms omitted and provided
separately to the Securities and Exchange Commission. |
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*
40 Acres
*
Estimated Value *
Owner: The GEO Group, Inc.
51 Acres
*
Estimated Value *
Owner: The GEO Group, Inc.
70 Acres
*
Estimated Value *
Owner: The GEO Group, Inc.
Vacant Land Owned
*
*
Estimated Value
Owner: The GEO Group, Inc.
*
440 Acres
*
*
Estimated Value *
Owner: The GEO Group, Inc.
68 Acres
*
Estimated Value *
Owner: The GEO Group, Inc.
*
Vacant Lot
*
*
*
Estimated Value *
Owner: The GEO Group, Inc.
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* |
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Confidential terms omitted and provided
separately to the Securities and Exchange Commission. |
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*
250 Acres
*
Estimated Value *
Owner: The GEO Group, Inc.
*
*
160 Acres
Estimated Value *
Owner: The GEO Group, Inc.
200 Acres
Estimated Value *
Owner: The GEO Group, Inc.
40 Acres
Estimated Value *
Owner: The GEO Group, Inc.
*
21 Acres
*
Estimated Value *
Owner: The GEO Group, Inc.
29 Acres
*
Xxxxxx City, Tx
Estimated Value *
Owner: The GEO Group, Inc.
*
108 Acres
*
Estimated Value *
Owner: The GEO Group, Inc.
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* |
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Confidential terms omitted and provided
separately to the Securities and Exchange Commission. |
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*
*
*
*
Estimated Value *
Owner: Correctional Services Corporation
200 Acres
*
*
Estimated Value *
Owner: The GEO Group, Inc.
Leased Property
Β Β Β Β Β 1.Β (CPT Master Lease) That certain Master Agreement to Lease between CPT Operating Partnership
L.P., as Landlord, and The GEO Group, Inc. (f.k.a. Wackenhut Corrections Corporation), as Tenant,
dated AprilΒ 28, 1998 (the βCPT Master Leaseβ) including the following agreements that are subject
to the CPT Master Lease:
Β Β Β Β Β (a) (Central Valley, CA) That certain Lease Agreement between CPT Operating Partnership
L.P., as Landlord, and GEO RE Holdings LLC (f.k.a. WCC RE Holdings LLC), as Tenant, dated
AprilΒ 28, 1998 for the Central Valley Correctional Facility located in McFarland, Xxxxx
County, California. *Subject to Mortgage
Β Β Β Β Β (i) (Central Valley, CA) That certain First Amendment to Lease Agreement
between CPT Operating Partnership L.P., as Landlord, and GEO RE Holdings LLC (f.k.a.
WCC RE Holdings LLC), as Tenant, dated AprilΒ 28, 2008 for the Central Valley
Correctional Facility located in McFarland, Xxxxx County, California.
Β Β Β Β Β (ii) (Central Valley, CA) That certain Second Amendment to Lease Agreement
between CPT Operating Partnership L.P., as Landlord, and GEO RE Holdings LLC (f.k.a.
WCC RE Holdings LLC), as Tenant, dated JuneΒ 20, 2008 for the Central Valley
Correctional Facility located in McFarland, Xxxxx County, California.
Β Β Β Β Β (b) (Desert View, CA) That certain Lease Agreement between CPT Operating Partnership
L.P., as Landlord, and GEO RE Holdings LLC (f.k.a. WCC RE Holdings LLC), as Tenant, dated
AprilΒ 28, 1998 for the Desert View Correctional Facility located in Adelanto, San Bernardino
County, California. *Subject to Mortgage
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*Β Confidential terms omitted and provided
separately to the Securities and Exchange Commission. |
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Β Β Β Β Β (i) (Desert View, CA) That certain First Amendment to Lease Agreement between
CPT Operating Partnership L.P., as Landlord, and GEO RE Holdings LLC (f.k.a. WCC RE
Holdings LLC), as Tenant, dated AprilΒ 28, 2008 for the Desert View Correctional
Facility located in Adelanto, San Bernardino County, California.
Β Β Β Β Β (ii) (Desert View, CA) That certain Second Amendment to Lease Agreement between
CPT Operating Partnership L.P., as Landlord, and GEO RE Holdings LLC (f.k.a. WCC RE
Holdings LLC), as Tenant, dated JuneΒ 20, 2008 for the Desert View Correctional
Facility located in Adelanto, San Bernardino County, California.
Β Β Β Β Β (c) (Golden State, CA) That certain Lease Agreement between CPT Operating Partnership
L.P., as Landlord, and GEO RE Holdings LLC (f.k.a. WCC RE Holdings LLC), as Tenant, dated
AprilΒ 28, 1998 for the Golden State Correctional Facility located in McFarland, Xxxxx
County, California. *Subject to Mortgage
Β Β Β Β Β (i) (Golden State, CA) That certain First Amendment to Lease Agreement between
CPT Operating Partnership L.P., as Landlord, and GEO RE Holdings LLC (f.k.a. WCC RE
Holdings LLC), as Tenant, dated AprilΒ 28, 2008 for the Golden State Correctional
Facility located in McFarland, Xxxxx County, California.
Β Β Β Β Β (ii) (Golden State, CA) That certain Second Amendment to Lease Agreement
between CPT Operating Partnership L.P., as Landlord, and GEO RE Holdings LLC (f.k.a.
WCC RE Holdings LLC), as Tenant, dated JuneΒ 20, 2008 for the Golden State
Correctional Facility located in McFarland, Xxxxx County, California.
Β Β Β Β Β (d) (XxXxxxxxx, CA) That certain Lease Agreement between CPT Operating Partnership
L.P., as Landlord, and GEO RE Holdings LLC (f.k.a. WCC RE Holdings LLC), as Tenant, dated
AprilΒ 28, 1998 for the XxXxxxxxx Community Correctional Facility located in McFarland, Xxxxx
County, California. *Subject to Mortgage
Β Β Β Β Β (i) (McFarland, CA) That certain Third Amendment to Lease Agreement between CPT
Operating Partnership L.P., as Landlord, and GEO RE Holdings LLC (f.k.a. WCC RE
Holdings LLC), as Tenant, dated NovemberΒ 2008 for the XxXxxxxxx Community
Correctional Facility located in McFarland, Xxxxx County, California.
Β Β Β Β Β (e) (Aurora, CO) That certain Lease Agreement between CPT Operating Partnership L.P.,
as Landlord, and The GEO Group, Inc. (f.k.a. Wackenhut Corrections Corporation), as Tenant,
dated AprilΒ 28, 1998 for the Aurora INS Processing Center located in Aurora, Xxxxx County,
Colorado. *Subject to Mortgage
Β Β Β Β Β (i) (Aurora, CO) That certain First Amendment to Lease Agreement between CPT
Operating Partnership L.P., as Landlord, and The GEO Group, Inc.
Β
Β
(f.k.a. Wackenhut Corrections Corporation), as Tenant, dated AprilΒ 28, 2008 for
the Aurora INS Processing Center located in Aurora, Xxxxx County, Colorado.
Β Β Β Β Β (ii) (Aurora, CO) That certain Second Amendment toLease Agreement between CPT
Operating Partnership L.P., as Landlord, and The GEO Group, Inc. (f.k.a. Wackenhut
Corrections Corporation), as Tenant, dated JuneΒ 30, 2008 for the Aurora INS
Processing Center located in Aurora, Xxxxx County, Colorado.
Β Β Β Β Β (f) (Lea County, NM) That certain Lease Agreement as amended by that certain First
Amendment to Lease Agreement and Memorandum of Lease between CPT Operating Partnership L.P.,
as Landlord, and The GEO Group, Inc. (f.k.a. Wackenhut Corrections Corporation), as Tenant,
dated JanuaryΒ 15, 1999 for the Hobbs, New Mexico Correctional and Detention Facility.
*Subject to Mortgage**Located within Flood Zone
Β Β Β Β Β (i) (Lea County, NM) That certain First Amendment to Lease Agreement as amended
by that certain First Amendment to Lease Agreement and Memorandum of Lease between
CPT Operating Partnership L.P., as Landlord, and The GEO Group, Inc. (f.k.a.
Wackenhut Corrections Corporation), as Tenant, dated JuneΒ 20, 2008 for the Hobbs,
New Mexico Correctional and Detention Facility.
Β Β Β Β Β (g) (Queens, NY) That certain Lease Agreement between CPT Operating Partnership L.P.,
as Landlord, and The GEO Group, Inc. (f.k.a. Wackenhut Corrections Corporation), as Tenant,
dated AprilΒ 28, 1998 for the Queens Private Correctional Facility, New York, Queens County,
New York. *Subject to Mortgage
Β Β Β Β Β (i) (Queens, NY) That certain First Amendment Lease Agreement between CPT
Operating Partnership L.P., as Landlord, and The GEO Group, Inc. (f.k.a. Wackenhut
Corrections Corporation), as Tenant, dated JuneΒ 20, 2008 for the Queens Private
Correctional Facility, New York, Queens County, New York.
Β Β Β Β Β (h) (Xxxxxx County, TX) That certain Lease Agreement between CPT Operating Partnership
L.P., as Landlord, and The GEO Group, Inc. (f.k.a. Wackenhut Corrections Corporation), as
Tenant, dated AprilΒ 28, 1998 for the Xxxxxx County Correctional Facility, Xxxxxx County,
Texas. *Subject to Mortgage
Β Β Β Β Β (i) (Xxxxxx County, TX) That certain First Amendment to Lease Agreement between
CPT Operating Partnership L.P., as Landlord, and The GEO Group, Inc. (f.k.a.
Wackenhut Corrections Corporation), as Tenant, dated JuneΒ 20 2008 for the Xxxxxx
County Correctional Facility, Xxxxxx County, Texas.
Β Β Β Β Β (i) (Lawton, OK) That certain Lease Agreement between CPT Operating Partnership L.P.,
as Landlord, and The GEO Group, Inc. (f.k.a. Wackenhut Corrections Corporation), as Tenant,
dated JanuaryΒ 15, 1999 for the Lawton, Oklahoma Correction and Detention Facility. *Subject
to Mortgage
Β
Β
Β Β Β Β Β (i) (Lawton, OK) That certain First Amendment to Lease Agreement between CPT
Operating Partnership L.P., as Landlord, and The GEO Group, Inc., as Tenant, dated
MayΒ 27, 2005 for the Lawton, Oklahoma Correction and Detention Facility.
Β Β Β Β Β (ii) (Lawton, OK) That certain Third Amendment to Lease Agreement between CPT
Operating Partnership L.P., as Landlord, and The GEO Group, Inc., as Tenant, dated
NovemberΒ 2008 for the Lawton, Oklahoma Correction and Detention Facility.
Β Β Β Β Β 2.Β (Western Region Detention Facility) That certain Standard FormΒ Lease Agreement (Ground
Lease of Undeveloped Property), as may be amended, between the County of San Diego, as Lessor, and
The GEO Group, Inc. (f.k.a. Wackenhut Corrections Corporation), as Lessee, dated MarchΒ 19, 1999 for
the Central Jail Detention Facility, San Diego County, California.
Β Β Β Β Β 3.Β (North Texas) That certain Lease Agreement, as may be amended, between Fort Worth
Industrial Development, Inc., as Lessor, and The GEO Group, Inc. (f.k.a. Wackenhut Corrections
Corporation), as Lessee, effective as of OctoberΒ 1, 1996 for that certain premises located in
Tarrant County, Texas, as more particularly described in the Lease Agreement.
Β Β Β Β Β 4.Β (Central, Texas) That certain Lease Agreement, as may be amended, between Bexar County,
Texas, as Landlord, and The GEO Group, Inc. (f.k.a. Wackenhut Corrections Corporation), as Tenant,
dated OctoberΒ 1, 1996 for that certain premises located in Bexar County, Texas, as more
particularly described in the Lease Agreement.
Β Β Β Β Β 5.Β (Bronx, NY) That certain Lease Agreement, as may be amended, between Creston Realty
Associates, as Landlord, and Correctional Services Corporation, as Tenant, dated OctoberΒ 1, 1996
for that certain premises located in Bronx, New York, as more particularly described in the Lease
Agreement.
Β Β Β Β Β (a) (Bronx, NY) That certain First Amendment to Lease Agreement between Creston Realty
Associates, as Landlord, and Correctional Services Corporation, as Tenant, dated OctoberΒ 1,
2001 for that certain premises located in Bronx, New York, as more particularly described in
the Lease Agreement.
Β Β Β Β Β (b) (Bronx, NY) That certain Second Amendment to Lease Agreement between Creston
Realty Associates, as Landlord, and Correctional Services Corporation, as Tenant, dated
OctoberΒ 1, 2006 for that certain premises located in Bronx, New York, as more particularly
described in the Lease Agreement.
Β Β Β Β Β 6.Β (Brooklyn, NY) That certain Lease Agreement, as may be amended, between Myrtle Avenue
Family Center, Inc., as Owner, and Correctional Services Corporation, as Tenant, dated JanuaryΒ 1,
1994 for that certain premises located in Brooklyn, New York, as more particularly described in the
Lease Agreement.
Β Β Β Β Β (a) (Brooklyn, NY) That certain First Amendment to Lease Agreement between Myrtle
Avenue Family Center, Inc., as Owner, and Correctional Services
Β
Β
Corporation, as Tenant, dated DecemberΒ 31, 2003 for that certain premises located in
Brooklyn, New York, as more particularly described in the Lease Agreement.
Β Β Β Β Β 7.Β (Ft. Worth, TX) That certain Lease Agreement, as may be amended, between Regions
Enterprises, Inc., as Landlord, and Correctional Services Corporation, as Tenant, dated MayΒ 16,
1994 for that certain premises located in Ft. Worth, Texas, as more particularly described in the
Lease Agreement.
Β Β Β Β Β 8.Β (Frio County, TX) That certain Lease Agreement, as may be amended, between Frio County as
Lessor, and Correctional Services Corporation, as Lessee, dated NovemberΒ 26, 1997 for that certain
premises located in Pearsall, Texas, as more particularly described in the Lease Agreement.
Β Β Β Β Β (a) (Frio County, TX) That certain First Amendment to Lease Agreement, as may be
amended, between Frio County, as Lessor, and Correctional Services Corporation, as Lessee,
dated JanuaryΒ 1, 2001 for that certain premises located in Pearsall, Texas, as more
particularly described in the Lease Agreement.
Β Β Β Β Β (b) (Frio County, TX) That certain Second Amendment to Lease Agreement, as may be
amended, between Frio County, as Lessor, and Correctional Services Corporation, as Lessse,
dated FebruaryΒ 22, 2001 for that certain premises located in Pearsall, Texas, as more
particularly described in the Lease Agreement.
Β Β Β Β Β 10.Β (Xxxxxxxx Xxxx) That certain Management Agreement, as may be amended, between Xxxxxxxx
Xxxx Prison LLC, as Owner, and Correctional Services Corporation, as Manager, dated DecemberΒ 1,
2002 for that certain premises located in Florence, Arizona, as more particularly described in the
Management Agreement.
Β Β Β Β Β 11.Β (Phoenix West) That certain Operating Agreement, as may be amended, between Phoenix West
Prison, LLC, as Owner, and Correctional Services Corporation, as Manager, dated JulyΒ 1, 2002 for
that certain premises located in West Phoenix, AZ, as more particularly described in the Lease
Agreement.
Β Β Β Β Β 12.Β (Val Verde, TX) That certain Novated Lease Agreement, as may be amended, between Val
Verde County, as Lessor, and Wackenhut Corrections Corporation, as Lessee, dated MayΒ 24, 1999 for
that certain premises located in Pearsall, Texas, as more particularly described in the Lease
Agreement. (Note: In 2003 Wackenhut Corrections Corporation filed articles of amendment in the
State of Florida to change its name to The GEO Group, Inc., however, we are not certain if the Val
Verde public records reflect the name change). *Subject to Mortgage
Β Β Β Β Β 13.Β (X. X. Xxxxxx) That certain Lease Agreement, as may be amended, between Xxxxxxx County,
as Lessor, and The
GEO Group Inc., as Lessee, dated AprilΒ 23, 2007 for that certain premises
located in Jonesboro, Georgia as more particularly described in the Lease Agreement.
Β Β Β Β Β 14.Β (Just Care) That certain Lease Agreement, as may be amended, between South Carolina
Department of Mental Health, as Lessor, and Just Care Inc., as Lessee, dated MayΒ 2,
Β
Β
1997 for that certain premises located in Columbia, South Carolina, as more particularly described
in the Lease Agreement. *Subject to Mortgage
Β Β Β Β Β (i) (Just Care) That certain Tenth Amendment to Lease Agreement, as may be amended,
between South Carolina Department of Mental Health, as Lessor, and Just Care Inc., as
Lessee, dated JuneΒ 26, 2010 for that certain premises located in Columbia, South Carolina,
as more particularly described in the Lease Agreement.
Β Β Β Β Β 15.Β (Hobbs, NM β Lea County Correctional Facility) Lease Agreement Dated DecemberΒ 2, 1997 by
and between Lea County, New Mexico, a Political Subdivision, as Lessor, and First Security Bank,
National Association not individually but solely as Owner Trustee under Wackenhut Corrections Trust
1997-1, as Lessee, as amended by that certain Amended and Restated Lease Agreement dated October
19, 1998, as further assigned in that certain Assignment and Conveyance of Leasehold Interest Under
98 Year Lease dated OctoberΒ 30, 1998, by and between First Security Bank, National Association, not
individually but solely as Owner Trustee under the Wackenhut Corrections Trust 1997-1, as Assignor
and CPT Operating Partnership L.P., as Assignee. *Subject to Mortgage
Β Β Β Β Β 16.Β (Tacoma, WA β Northwest Detention Center) That certain Use Agreement, as may be amended,
between CSC of Tacoma, LLC, as Owner / Lessor, and Correctional Services Corporation., as Lessee /
Operator, dated JuneΒ 30, 2003 for that certain premises located in Tacoma, Washington as more
particularly described in the Lease Agreement.
Β Β Β Β Β 17.Β (Central Arizona) That certain Management Agreement, as may be amended, between Xxxxxxxx
Xxxx Prison Expansion, LLC, as Owner / Lessor, and Correctional Services Corporation., as Lessee /
Operator, dated AugustΒ 1, 2004 for that certain premises located in Florence, Arizona as more
particularly described in the Lease Agreement.
Β Β Β Β Β 18.Β (South Texas Detention) That certain Operating Agreement, as may be amended, between
South Texas Detention Complex Local Corporation, as Borrower / Owner / Lessor, and Correctional
Services Corporation., as Lessee / Manager, dated FebruaryΒ 10, 2006 for that certain premises
located in Pearsall, Texas as more particularly described in the Lease Agreement.
Β Β Β Β Β 19.Β (Western Region Office) That certain Lease Agreement, as may be amended, between TRIZEC
6100 HHC, LLC, as Lessor, and The
GEO Group Inc., as Lessee, dated March, 2010 for that certain
premises located in Los Angeles, California as more particularly described in the Lease Agreement.
Β Β Β Β Β 20.Β (Eastern Office) That certain Lease Agreement, as may be amended, between Ballantyne Two,
LLC., as Lessor, and The
GEO Group Inc., as Lessee, dated AprilΒ 1, 2007 for that certain premises
located in Charlotte, North Carolina as more particularly described in the Lease Agreement.
Β Β Β Β Β 21.Β (Central Region Office) That certain Lease Agreement, as may be amended, between NB
Dental / Med Bldg GP LLC, as Lessor, and The
GEO Group Inc., as Lessee, dated
Β
Β
AugustΒ 1, 2006 for that certain premises located in New Braunfels, Texas as more particularly
described in the Lease Agreement.
Β Β Β Β Β (a) (Central Region Office) That certain First Amendment to Lease Agreement, as may be
amended, between NB Dental / Med Bldg GP LLC as Lessor, and The
GEO Group Inc., as Lessee,
dated AugustΒ 1, 2009 for that certain premises located in New Braunfels, Texas as more
particularly described in the Lease Agreement.
Β Β Β Β Β 23.Β (Central Region Office β New) That certain Lease Agreement, as may be amended, between
EQUASTONE 1777 TOWER, LP, as Lessor, and The
GEO Group Inc., as Lessee, dated JulyΒ 26, 2010 for
that certain premises located in San Antonio, Texas as more particularly described in the Lease
Agreement.
Β Β Β Β Β 23.Β (Corporate Office) That certain Lease Agreement, as may be amended, between Campro
Investments, Ltd., as Lessor, and The
GEO Group Inc., as Lessee, dated SeptemberΒ 12, 2002 for that
certain premises located in Boca Raton, Florida as more particularly described in the Lease
Agreement.
Β Β Β Β Β (a) (Corporate Office) That certain Ninth Amendment to Lease Agreement, as may be
amended, between Campro Investments, Ltd., as Lessor, and The
GEO Group Inc., as Lessee,
dated OctoberΒ 27, 2010 for that certain premises located in Boca Raton, Florida as more
particularly described in the Lease Agreement.
Β
Β
ScheduleΒ 3.19
to
Disclosure Supplement
Dated as of AugustΒ 4, 2010
Employee Relations
Collective Bargaining Agreement, dated FebruaryΒ 28, 2008, between International Union Security,
Police and Fire Professionals of America (SPFPA)Β and its Amalgamated Local 151 and The GEO Group,
Inc. (Desert View Facility)
Collective Bargaining Agreement, dated AprilΒ 1, 2009, between United Federation of Security
Officers, Inc. and its Local 500 Correctional Officers Queens, New York and The GEO Group, Inc.
(Queens Facility)
Collective Bargaining Agreement, dated JuneΒ 1, 2010, between International Union Security, Police
and Fire Professionals of America (SPFPA)Β and its Amalgamated Local 903 and The GEO Group, Inc.
(Aurora/ICE Processing Center)
Collective Bargaining Agreement, dated JuneΒ 2, 2008, between International Union Security, Police
and Fire Professionals of America (SPFPA)Β and its Amalgamated Local 304 and The GEO Group, Inc.
(South Texas Detention Complex)
Collective Bargaining Agreement, dated JulyΒ 1, 2007, between the Federation of Physicians and
Dentists, NUHHCE, AFSCME, AFL-CIO and GEO Care, Inc. (South Florida State Hospital)
Fulham Correctional Officers Certified Agreement 2005, dated DecemberΒ 29, 2005, between The GEO
Group Australia Pty Ltd & CPSU, Community and Public Sector Union
Fulham Correctional Centre, Catering Officers Certified Agreement 2005, dated 31 AugustΒ 2005
Pacific Rim Employment Pty Ltd Healthcare Employees (Nurses) Certified Agreement 2004, dated 25
JanuaryΒ 2005
Liquor Hospitality & Miscellaneous Union & The GEO Group Australia Pty Ltd NSW Non-Custodial
Employees Certified Agreement 2004 (Junee Correctional Centre)
LHMU Junee Correctional Centre Correctional Officers 2006 Enterprise Agreement, between The GEO
Group Australia Pty Ltd & Liquor Hospitality & Miscellaneous Union
Xxxxxx Xxxxxx Correctional Centre β Correctional Officers-Certified Agreement 2006, between GEO and
The Liquor Hospitality and Miscellaneous Union of Employees, dated MarchΒ 17, 2006
Β
Β
Xxxxxx Xxxxxx Correctional Centre β Non Custodial Interim-Certified Agreement 2006, between The GEO
Group Australia Pty Ltd & The Liquor Hospitality & Miscellaneous Union of Employees, dated March
22, 2006
Xxxxxx Xxxxxx Correctional Centre β Nurses-Certified Agreement 2005, between The GEO Group
Australia Pty Ltd & Queensland Nurses Union of Employees, dated JuneΒ 2005
Pacific Rim Labour Arrangement, dated AprilΒ 10, 2001, between Australasian Correctional Management
Pty. Ltd. and Pacific Rim Employment Pty. Ltd.
Kutama Sinthumule Correctional Centre β Organizational Rights Agreement between South African
Custodial Management (PTY)Β Limited and Police, Prisons and Civil Riths Union (POPCRU)Β dated
SeptemberΒ 11, 2009.
Campsfield House Immigration Removal Centre β General Municipal Boiler Workers Union (GMB) β
Collective Bargaining Agreement (wages and conditions) β JanuaryΒ 2010
Harmondsworth Immigration Removal Centre β Prison Service Union (PSU) β Collective Bargaining
Agreement (wages and conditions) β JanuaryΒ 2010
LMHU Junee Correctional Centre β Correctional Officers β 2006 Collective
Agreement (2008 Variation), expiring 31 AugustΒ 2011. (Negotiating Parties The
GEO Group Australia Pty Ltd & Liquor Hospitality & Miscellaneous Union)
Junee Correctional Centre Non-Custodial Employee Enterprise Agreement 2010
(Please note this new agreement is yet to be approved by the relevant
tribunal), expiring 31 MarchΒ 2013. (Negotiating Parties The GEO Group Australia
Pty Ltd & Employees)
Xxxxxx Xxxxxx Correctional Centre β Non Custodial (Cooks and Catering)
Employeesβ Enterprise Agreement 2009, expiring 1 JanuaryΒ 2013. (Negotiating
Parties The GEO Group Australia Pty Ltd & Liquor Hospitality & Miscellaneous
Union)
Xxxxxx Xxxxxx β Nurses Enterprise Agreement 2010, expiring 31 DecemberΒ 2012.
(Negotiating Parties The GEO Group Australia Pty Ltd and Queensland Nurses
Union of Employees)
Xxxxxx Xxxxxx Correctional Centre β Correctional Officers β Certified
Agreement 2006 (Extend and Varied Version), expiring 31 DecemberΒ 2011.
(Negotiating Parties The GEO Group Australia Pty Ltd & Liquor Hospitality &
Miscellaneous Union)
Β
Β
Xxxxxx Xxxxxx Correctional Centre, Non β Custodial (Psychologist and
Counsellor) Employeesβ Enterprise Agreement 2010, expiring 1 JanuaryΒ 2011.
(Negotiating Parties The GEO Group Australia Pty Ltd and Liquor Hospitality &
Miscellaneous Union)
Xxxxxx Xxxxxx Correctional Centre β Non Custodial (Administration, Ground and
Maintenance) Employeesβ Collective Agreement 2007, dated 10 May. (Please note
that this agreement has expired. New agreement subject to Fairwork Australia
stamp approval). (Negotiating Parties The GEO Group Australia Pty Ltd and
Liquor Hospitality & Miscellaneous Union)
Fulham Correctional Centre Catering Officers Collective Agreement 2008,
expiring 23 OctoberΒ 2011. (Negotiating Parties The GEO Group Australia Pty Ltd
and Employees)
Fulham Correctional Officersβ Certified Agreement 2005 (Extended and Varied
Version), expiring 20 DecemberΒ 2011. (Negotiating Parties The GEO Group
Australia Pty Ltd & CPSU, Community and Public Sector Union)
Pacific Rim (Nurses) Collective Agreement 2009, expiring 16 JuneΒ 2012.
(Negotiating Parties The GEO Group Australia Pty Ltd and The Australian Nursing
Federation)
Parklea Correctional Centre β Correctional Officers Enterprise Agreement 2010,
expiring 31 DecemberΒ 2010. (Negotiating Parties The GEO Group Australia Pty Ltd
and Employees)
Parklea Correctional Centre Non β Custodial Individual Transitional Employment
Agreement 2009, expiring 31 DecemberΒ 2010. (Negotiating Parties The GEO Group
Australia Pty Ltd and Employees)
Β
Β
SCHEDULE 6.07
to
Disclosure Supplement
Dated as of AugustΒ 4, 2010
Restrictive Agreements
None
Β