EXHIBIT 10.1
EXECUTION COPY
Published CUSIP Number: 00000XXX0
Revolving Credit CUSIP Number: 00000XXX0
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$150,000,000
CREDIT AGREEMENT
dated as of February 3, 2006
by and among
CORRECTIONS CORPORATION OF AMERICA,
as Borrower,
the Lenders referred to herein,
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Administrative Agent,
Swingline Lender and Issuing Lender
and
WACHOVIA CAPITAL MARKETS, LLC,
as Sole Book Manager
WACHOVIA CAPITAL MARKETS, LLC and BANC OF AMERICA SECURITIES LLC
as Joint Lead Arrangers
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TABLE OF CONTENTS
PAGE
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ARTICLE I DEFINITIONS........................................................... 1
SECTION 1.1 Definitions.................................................. 1
SECTION 1.2 Other Definitions and Provisions............................. 29
SECTION 1.3 Accounting Terms............................................. 30
SECTION 1.4 UCC Terms.................................................... 30
SECTION 1.5 Rounding..................................................... 30
SECTION 1.6 References to Agreement and Laws............................. 30
SECTION 1.7 Times of Day................................................. 30
SECTION 1.8 Letter of Credit Amounts..................................... 30
ARTICLE II REVOLVING CREDIT FACILITY............................................ 31
SECTION 2.1 Revolving Credit Loans....................................... 31
SECTION 2.2 Swingline Loans.............................................. 31
SECTION 2.3 Procedure for Advances of Revolving Credit Loans and
Swingline Loans.............................................. 32
SECTION 2.4 Repayment and Prepayment of Revolving Credit and Swingline
Loans........................................................ 33
SECTION 2.5 Permanent Reduction of the Revolving Credit Commitment....... 34
SECTION 2.6 Termination of Revolving Credit Facility..................... 35
SECTION 2.7 Increase in Revolving Credit Facility........................ 35
SECTION 2.8 Incremental Term Loans....................................... 37
ARTICLE III LETTER OF CREDIT FACILITY........................................... 39
SECTION 3.1 L/C Commitment............................................... 39
SECTION 3.2 Procedure for Issuance of Letters of Credit.................. 40
SECTION 3.3 Commissions and Other Charges................................ 41
SECTION 3.4 L/C Participations........................................... 41
SECTION 3.5 Reimbursement Obligation of the Borrower..................... 42
SECTION 3.6 Obligations Absolute......................................... 43
SECTION 3.7 Effect of Letter of Credit Application....................... 43
SECTION 3.8 Appointment and Duties of Additional Issuing Lenders......... 44
ARTICLE IV GENERAL LOAN PROVISIONS.............................................. 44
SECTION 4.1 Interest..................................................... 44
SECTION 4.2 Notice and Manner of Conversion or Continuation of Loans..... 46
SECTION 4.3 Fees......................................................... 46
SECTION 4.4 Manner of Payment............................................ 47
SECTION 4.5 Evidence of Indebtedness..................................... 47
SECTION 4.6 Adjustments.................................................. 48
SECTION 4.7 Nature of Obligations of Lenders Regarding Extensions of
Credit; Assumption by the Administrative Agent............... 48
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SECTION 4.8 Changed Circumstances........................................ 49
SECTION 4.9 Indemnity.................................................... 50
SECTION 4.10 Increased Costs.............................................. 50
SECTION 4.11 Taxes........................................................ 52
SECTION 4.12 Mitigation Obligations; Replacement of Lenders............... 54
SECTION 4.13 Security..................................................... 55
ARTICLE V CLOSING; CONDITIONS OF CLOSING AND BORROWING.......................... 55
SECTION 5.1 Closing...................................................... 55
SECTION 5.2 Conditions to Closing and Initial Extensions of Credit....... 55
SECTION 5.3 Conditions to All Extensions of Credit....................... 58
ARTICLE VI REPRESENTATIONS AND WARRANTIES OF THE BORROWER....................... 59
SECTION 6.1 Representations and Warranties............................... 59
SECTION 6.2 Survival of Representations and Warranties, Etc.............. 66
ARTICLE VII FINANCIAL INFORMATION AND NOTICES................................... 67
SECTION 7.1 Financial Statements and Projections......................... 67
SECTION 7.2 Officer's Compliance Certificate............................. 68
SECTION 7.3 Accountants' Certificate..................................... 68
SECTION 7.4 Other Reports................................................ 69
SECTION 7.5 Notice of Litigation and Other Matters....................... 69
SECTION 7.6 Accuracy of Information...................................... 70
ARTICLE VIII AFFIRMATIVE COVENANTS.............................................. 70
SECTION 8.1 Preservation of Corporate Existence and Related Matters...... 70
SECTION 8.2 Maintenance of Property...................................... 70
SECTION 8.3 Insurance.................................................... 71
SECTION 8.4 Accounting Methods and Financial Records..................... 71
SECTION 8.5 Payment and Performance of Obligations....................... 71
SECTION 8.6 Compliance With Laws and Approvals........................... 71
SECTION 8.7 Environmental Laws........................................... 71
SECTION 8.8 Compliance with ERISA........................................ 72
SECTION 8.9 Compliance With Agreements................................... 72
SECTION 8.10 Visits and Inspections....................................... 72
SECTION 8.11 Additional Subsidiaries...................................... 73
SECTION 8.12 Designation of Restricted and Unrestricted Subsidiaries...... 74
SECTION 8.13 Use of Proceeds.............................................. 75
SECTION 8.14 Further Assurances........................................... 75
ARTICLE IX FINANCIAL COVENANTS.................................................. 75
SECTION 9.1 Consolidated Total Leverage Ratio............................ 75
SECTION 9.2 Interest Coverage Ratio...................................... 75
ARTICLE X NEGATIVE COVENANTS.................................................... 76
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SECTION 10.1 Limitations on Indebtedness.................................. 76
SECTION 10.2 Limitations on Liens......................................... 78
SECTION 10.3 Limitations on Mergers and Liquidation....................... 80
SECTION 10.4 Limitations on Asset Dispositions............................ 80
SECTION 10.5 Restricted Payments.......................................... 83
SECTION 10.6 Limitations on Exchange and Issuance of Disqualified Stock... 87
SECTION 10.7 Transactions with Affiliates................................. 87
SECTION 10.8 Certain Accounting Changes; Organizational Documents......... 87
SECTION 10.9 Amendments; Payments and Prepayments of Material
Indebtedness................................................. 88
SECTION 10.10 Restrictive Agreements....................................... 88
SECTION 10.11 Nature of Business........................................... 88
SECTION 10.12 Impairment of Security Interests............................. 88
ARTICLE XI DEFAULT AND REMEDIES................................................. 89
SECTION 11.1 Events of Default............................................ 89
SECTION 11.2 Remedies..................................................... 91
SECTION 11.3 Rights and Remedies Cumulative; Non-Waiver; etc.............. 92
SECTION 11.4 Crediting of Payments and Proceeds........................... 92
SECTION 11.5 Administrative Agent May File Proofs of Claim................ 93
ARTICLE XII THE ADMINISTRATIVE AGENT............................................ 93
SECTION 12.1 Appointment and Authority.................................... 93
SECTION 12.2 Rights as a Lender........................................... 94
SECTION 12.3 Exculpatory Provisions....................................... 94
SECTION 12.4 Reliance by the Administrative Agent......................... 95
SECTION 12.5 Delegation of Duties......................................... 95
SECTION 12.6 Resignation of Administrative Agent.......................... 95
SECTION 12.7 Non-Reliance on Administrative Agent and Other Lenders....... 96
SECTION 12.8 No Other Duties, etc......................................... 97
SECTION 12.9 Collateral and Guaranty Matters.............................. 97
ARTICLE XIII MISCELLANEOUS...................................................... 97
SECTION 13.1 Notices...................................................... 98
SECTION 13.2 Amendments, Waivers and Consents............................. 99
SECTION 13.3 Expenses; Indemnity.......................................... 101
SECTION 13.4 Right of Set-off............................................. 102
SECTION 13.5 Governing Law................................................ 103
SECTION 13.6 Waiver of Jury Trial......................................... 104
SECTION 13.7 Reversal of Payments......................................... 104
SECTION 13.8 Injunctive Relief; Punitive Damages.......................... 104
SECTION 13.9 Accounting Matters........................................... 105
SECTION 13.10 Successors and Assigns; Participations....................... 105
SECTION 13.11 Confidentiality.............................................. 108
SECTION 13.12 Performance of Duties........................................ 108
SECTION 13.13 All Powers Coupled with Interest............................. 109
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SECTION 13.14 Survival of Indemnities...................................... 109
SECTION 13.15 Titles and Captions.......................................... 109
SECTION 13.16 Severability of Provisions................................... 109
SECTION 13.17 Counterparts................................................. 109
SECTION 13.18 Integration.................................................. 109
SECTION 13.19 Term of Agreement............................................ 110
SECTION 13.20 Advice of Counsel, No Strict Construction.................... 110
SECTION 13.21 USA Patriot Act.............................................. 110
SECTION 13.22 Inconsistencies with Other Documents; Independent Effect
of Covenants................................................. 110
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EXHIBITS
Exhibit A-1 - Form of Revolving Credit Note
Exhibit A-2 - Form of Swingline Note
Exhibit B - Form of Notice of Borrowing
Exhibit C - Form of Notice of Account Designation
Exhibit D - Form of Notice of Prepayment
Exhibit E - Form of Notice of Conversion/Continuation
Exhibit F - Form of Officer's Compliance Certificate
Exhibit G - Form of Assignment and Assumption
Exhibit H - Form of Guaranty Agreement
Exhibit I - Form of Collateral Agreement
SCHEDULES
Schedule 1.1(a) - Existing Letters of Credit
Schedule 1.1(b) - Existing Loans, Advances and Investments
Schedule 1.1(c) - Book Value of Designated Assets
Schedule 6.1(a) - Jurisdictions of Organization and Qualification
Schedule 6.1(b) - Subsidiaries and Capitalization
Schedule 6.1(i) - ERISA Plans
Schedule 6.1(l) - Material Indebtedness
Schedule 6.1(m) - Labor and Collective Bargaining Agreements
Schedule 6.1(u) - Litigation
Schedule 10.2 - Existing Liens
Schedule 10.7 - Transactions with Affiliates
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CREDIT AGREEMENT, dated as of February 3, 2006, by and among
CORRECTIONS CORPORATION OF AMERICA, a Maryland corporation (the "Borrower"), the
lenders who are or may become a party to this Agreement (collectively, the
"Lenders") and WACHOVIA BANK, NATIONAL ASSOCIATION, a national banking
association, as Administrative Agent for the Lenders.
STATEMENT OF PURPOSE
The Borrower has requested, and the Lenders have agreed, to extend
certain credit facilities to the Borrower on the terms and conditions of this
Agreement.
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
SECTION 1.1 Definitions. The following terms when used in this
Agreement shall have the meanings assigned to them below:
"Additional Issuing Lenders" means up to two (2) Revolving Credit
Lenders designated by the Borrower as additional issuers of Letters of Credit
pursuant to Section 3.8.
"Administrative Agent" means Wachovia, in its capacity as
Administrative Agent hereunder, and any successor thereto appointed pursuant to
Section 12.6.
"Administrative Agent's Office" means the office of the Administrative
Agent specified in or determined in accordance with the provisions of Section
13.1(c).
"Administrative Questionnaire" means an Administrative Questionnaire
in a form supplied by the Administrative Agent.
"Affiliate" means, with respect to any Person, any other Person (other
than a Subsidiary of such Person) which directly or indirectly through one or
more intermediaries, controls, or is controlled by, or is under common control
with, such first Person or any of its Subsidiaries. As used in this definition,
the term "control" means (a) the power to vote ten percent (10%) or more of the
securities or other equity interests of a Person having ordinary voting power,
or (b) the possession, directly or indirectly, of any other power to direct or
cause the direction of the management and policies of a Person, whether through
ownership of voting securities, by contract or otherwise.
"Agecroft" means Agecroft Prison Management Limited, incorporated in
England and Wales.
"Agecroft Note" means the Subordinated Loan Agreement among Agecroft,
the Borrower and Sodexho Alliance S.A., dated July 6, 1998, as amended, in the
aggregate principal amount of L6,309,000.
"Agreement" means this Credit Agreement, as amended, restated,
supplemented or otherwise modified from time to time.
"Applicable Law" 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.
"Applicable Margin" means the corresponding percentages per annum as
set forth below based on the Consolidated Total Leverage Ratio:
PRICING COMMITMENT LIBOR BASE
LEVEL CONSOLIDATED TOTAL LEVERAGE RATIO FEE RATE + RATE +
------- ------------------------------------- ---------- ------ -------
I Greater than or equal to 4.50 to 1.00 0.300% 1.500% 0.500%
II Greater than or equal to 4.00 to
1.00, but less than 4.50 to 1.00 0.250% 1.250% 0.250%
III Greater than or equal to 3.50 to
1.00 but less than 4.00 to 1.00 0.200% 1.000% 0.000%
IV Less than 3.50 to 1.00 0.150% 0.750% 0.000%
The Applicable Margin shall be determined and adjusted quarterly on the date
(each a "Calculation Date") ten (10) Business Days after receipt by the
Administrative Agent of the Officer's Compliance Certificate pursuant to Section
7.2 for the most recently ended fiscal quarter of the Borrower; provided that
(a) the Applicable Margin shall be based on Pricing Level II until the first
Calculation Date occurring after the Closing Date and, thereafter the Pricing
Level shall be determined by reference to the Consolidated Total Leverage Ratio
as of the last day of the most recently ended fiscal quarter of the Borrower
preceding the applicable Calculation Date, and (b) if the Borrower fails to
provide the Officer's Compliance Certificate as required by Section 7.2 for the
most recently ended fiscal quarter of the Borrower preceding the applicable
Calculation Date, the Applicable Margin from such Calculation Date shall be
based on Pricing Level I until such time as an appropriate Officer's Compliance
Certificate is provided, at which time the Pricing Level shall be determined by
reference to the Consolidated Total Leverage Ratio as of the last day of the
most recently ended fiscal quarter of the Borrower preceding such Calculation
Date. The Applicable Margin shall be effective from one Calculation Date until
the next Calculation Date. Any adjustment in the Applicable Margin shall be
applicable to all Extensions of Credit then existing or subsequently made or
issued.
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"Approved Fund" means any Person (other than a natural Person),
including, without limitation, any special purpose entity, 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;
provided, that such Approved Fund must be administered, managed or underwritten
by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate
of an entity that administers or manages a Lender.
"Asset Disposition" means the disposition of any or all of the assets
(including, without limitation, the Capital Stock of a Subsidiary or any
ownership interest in a joint venture) of any Credit Party or any Subsidiary
thereof whether by sale, lease, transfer or otherwise. The term "Asset
Disposition" shall not include any Equity Issuance.
"Asset Lien Value" means, with respect to a Lien on assets of the
Borrower and its Restricted Subsidiaries, the greater of (a) the fair market
value of the asset(s) subject to such Lien based on recent appraisals delivered
to and reasonably acceptable to the Administrative Agent and (b) the net book
value of such asset(s), in each case determined at the time such Lien is
created.
"Asset Swap" means an exchange of assets other than cash, Cash
Equivalents or Capital Stock of the Borrower or any Subsidiary by the Borrower
or a Restricted Subsidiary of the Borrower for (a) one or more Permitted
Businesses, (b) a controlling equity interest in any Person whose assets consist
primarily of one or more Permitted Businesses and/or (c) one or more real estate
properties.
"Assignment and Assumption" means an assignment and assumption entered
into by a Lender and an Eligible Assignee (with the consent of any party whose
consent is required by Section 13.10), and accepted by the Administrative Agent,
in substantially the form of EXHIBIT G or any other form approved by the
Administrative Agent.
"Attributable Indebtedness" means, on any date, (a) in respect of any
Capital Lease of any Person, the capitalized amount thereof that would appear as
a liability on a balance sheet of such Person prepared as of such date in
accordance with GAAP, and (b) in respect of any Synthetic Lease, the capitalized
amount or principal amount of the remaining lease payments under the relevant
lease that would appear as a liability on a balance sheet of such Person
prepared as of such date in accordance with GAAP if such lease were accounted
for as a Capital Lease.
"Auction Rate Securities" means any debt instruments with a long-term
nominal maturity for which the interest rate is reset through a "dutch auction"
process with interest on such Auction Rate Securities being paid at the end of
each such auction period; provided, however, that such Auction Rate Securities
shall have, at the time of purchase, one of the two highest rating categories
obtainable from either Xxxxx'x or S&P.
"Base Rate" means, at any time, the higher of (a) the Prime Rate and
(b) the sum of the Federal Funds Rate plus 1/2 of 1%; each change in the Base
Rate shall take effect simultaneously with the corresponding change or changes
in the Prime Rate or the Federal Funds Rate.
3
"Base Rate Loan" means any Loan bearing interest at a rate based upon
the Base Rate as provided in Section 4.1(a).
"Borrower" has the meaning assigned thereto in the introductory
paragraph hereof.
"Business Day" means (a) for all purposes other than as set forth in
clause (b) below, any day (other than a Saturday, Sunday or legal holiday) on
which banks in Charlotte, North Carolina and New York, New York, are open for
the conduct of their commercial banking business, and (b) with respect to all
notices and determinations in connection with, and payments of principal and
interest on, any LIBOR Rate Loan, any day that is a Business Day described in
clause (a) and that is also a day for trading by and between banks in Dollar
deposits in the London interbank market.
"Calculation Date" has the meaning assigned thereto in the definition
of Applicable Margin.
"Capital Lease" means any lease of any property by the Borrower or any
of its Restricted Subsidiaries, 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 and its Restricted Subsidiaries.
"Capital Stock" means (a) in the case of a corporation, capital stock,
(b) in the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however designated) of
capital stock, (c) in the case of a partnership, partnership interests (whether
general or limited), (d) in the case of a limited liability company, membership
interests and (e) any other interest or participation that confers on a Person
the right to receive a share of the profits and losses of, or distributions of
assets of, the issuing Person.
"Cash Equivalent" means: (a) Dollars; (b) Government Securities having
maturities of not more than one year from the date of acquisition; (c) readily
marketable direct obligations issued by any state of the United States or any
political subdivision thereof having one of the two highest rating categories
obtainable from either Xxxxx'x or S&P with maturities of twelve months or less
from the date of acquisition; (d) Auction Rate Securities; (e) certificates of
deposit and eurodollar time deposits with maturities of six months or less from
the date of acquisition, bankers' acceptances with maturities not exceeding one
year and overnight bank deposits, in each case, with any Lender party to this
Agreement or with any domestic commercial bank having capital and surplus in
excess of $500,000,000 and a Thomson Bank Watch Rating of "B" or better; (f)
repurchase obligations with a term of not more than seven days for underlying
securities of the types described in clauses (b) and (c) above entered into with
any financial institution meeting the qualifications specified in clause (e)
above; (g) commercial paper having the highest rating obtainable from Xxxxx'x or
S&P and in each case maturing within one year after the date of acquisition; and
(h) money market funds at least 95% of the assets of which constitute Cash
Equivalents of the kinds described in clauses (a) through (g) of this
definition.
"Change in Control" means an event or series of events by which (a)
any person or group of persons (within the meaning of Section 13(d) of the
Securities Exchange Act of 1934, as amended), shall obtain ownership or control
in one or more series of transactions of more than
4
thirty percent (30%) of the outstanding common stock or thirty percent (30%) of
the voting power of the Borrower entitled to vote in the election of members of
the board of directors of the Borrower, (b) there shall have occurred under any
indenture, contract or agreement evidencing any Material Indebtedness
(including, without limitation, any Senior Unsecured Notes) any "change in
control" or similar event (as set forth in the indenture, agreement or other
evidence of such Indebtedness) obligating the Borrower to repurchase, redeem or
repay all or any part of the Indebtedness or Capital Stock provided for therein
or (c) a majority of the members of the board of directors of the Borrower cease
to be Continuing Directors.
"Change in Law" means the occurrence, after the date of this
Agreement, of any of the following, as applicable: (a) the adoption or taking
effect of any law, rule, regulation or treaty, (b) any change in any law, rule,
regulation or treaty or in the administration, interpretation or application
thereof by any Governmental Authority or (c) the making or issuance of any
request, guideline or directive (whether or not having the force of law) by any
Governmental Authority.
"Closing Date" means the date of this Agreement or such later Business
Day upon which each condition described in Section 5.2 shall be satisfied or
waived in a manner acceptable to the Administrative Agent, in its sole
discretion.
"Code" means the Internal Revenue Code of 1986, and the rules and
regulations thereunder, each as amended or modified from time to time.
"Collateral" means the collateral security for the Obligations pledged
or granted pursuant to the Security Documents.
"Collateral Agreement" means the collateral agreement of even date
executed by the Credit Parties in favor of the Administrative Agent for the
benefit of itself and the Lenders, substantially in the form of EXHIBIT I, as
amended, restated, supplemented or otherwise modified from time to time.
"Consolidated" means, when used with reference to financial statements
or financial statement items of any Person, such statements or items on a
consolidated basis in accordance with applicable principles of consolidation
under GAAP.
"Consolidated EBITDA" means, for any period, the Consolidated Net
Income of the Borrower and its Restricted Subsidiaries for such period, plus (a)
an amount equal to any extraordinary loss plus any net loss realized by the
Borrower or any of its Restricted Subsidiaries in connection with an Asset
Disposition, to the extent such losses were deducted in computing such
Consolidated Net Income, plus (b) provision for taxes based on income or profits
of the Borrower and its Restricted Subsidiaries for such period, to the extent
that such provision for taxes was deducted in computing such Consolidated Net
Income, plus (c) Consolidated Interest Expense for such period, whether paid or
accrued and whether or not capitalized, to the extent that any such expense was
deducted in computing such Consolidated Net Income, plus (d) depreciation,
amortization (including amortization of intangibles but excluding amortization
of prepaid cash expenses that were paid in a prior period) and other non-cash
expenses (excluding any such non-cash expense to the extent that it represents
an accrual of or reserve for cash expenses in any future period or amortization
of a prepaid cash expense that was paid in a prior
5
period) of the Borrower and its Restricted Subsidiaries for such period to the
extent that such depreciation, amortization and other non-cash expenses were
deducted in computing such Consolidated Net Income, minus (e) non-cash items
increasing such Consolidated Net Income for such period, other than the accrual
of revenue in the ordinary course of business, in each case, on a Consolidated
basis and determined in accordance with GAAP. For purposes of this Agreement,
Consolidated EBITDA shall be adjusted on a pro forma basis, in a manner
reasonably acceptable to the Administrative Agent, to include, as of the first
day of any applicable period, any Permitted Acquisitions (if accounted for as a
merger or consolidation) and any Asset Dispositions (excluding any Asset
Disposition for a consideration of $5,000,000 or less) closed during such
period, including, without limitation, adjustments reflecting any non-recurring
costs and any extraordinary expenses of any Permitted Acquisitions and any Asset
Dispositions closed during such period calculated on a basis consistent with
GAAP and Regulation S-X of the Securities Exchange Act of 1934, as amended, or
as approved by the Administrative Agent.
"Consolidated Fixed Charge Coverage Ratio" means, for any period, the
ratio of Consolidated EBITDA for such period to the Consolidated Fixed Charges
for such period. In the event that the Borrower or any of its Restricted
Subsidiaries incurs, assumes, guarantees, repays, repurchases or redeems any
Indebtedness (other than ordinary working capital borrowings) or issues,
repurchases or redeems preferred stock subsequent to the commencement of the
period for which the Consolidated Fixed Charge Coverage Ratio is being
calculated and on or prior to the date as of which the calculation of the
Consolidated Fixed Charge Coverage Ratio is made (the "Consolidated Fixed
Charges Calculation Date"), then the Consolidated Fixed Charge Coverage Ratio
shall be calculated giving pro forma effect to such incurrence, assumption,
guarantee, repayment, repurchase or redemption of Indebtedness, or such
issuance, repurchase or redemption of preferred stock, and the use of the
proceeds therefrom, as if the same had occurred at the beginning of the
applicable four-quarter reference period.
In addition, for purposes of calculating the Consolidated Fixed Charge
Coverage Ratio: (i) acquisitions that have been made by the Borrower or any of
its Restricted Subsidiaries, including through mergers or consolidations and
including any related financing transactions, during the four-quarter reference
period or subsequent to such reference period and on or prior to the
Consolidated Fixed Charges Calculation Date shall be given pro forma effect as
if they had occurred on the first day of the four-quarter reference period, (ii)
the Consolidated EBITDA attributable to discontinued operations, as determined
in accordance with GAAP, and operations or businesses disposed of prior to the
Consolidated Fixed Charges Calculation Date, shall be excluded, and (iii) the
Consolidated Fixed Charges attributable to discontinued operations, as
determined in accordance with GAAP, and operations or businesses disposed of
prior to the Consolidated Fixed Charges Calculation Date, shall be excluded, but
only to the extent that the obligations giving rise to such Consolidated Fixed
Charges will not be obligations of the Borrower or any of its Restricted
Subsidiaries following the Consolidated Fixed Charges Calculation Date.
For purposes of making the computations referred to above, the pro
forma change in Consolidated EBITDA projected by the Borrower in good faith as a
result of reasonably identifiable and factually supportable cost savings and
costs, as the case may be, expected to be realized during the consecutive
four-quarter period commencing after an acquisition or similar
6
transaction (the "Savings Period") will be included in such calculation for any
reference period that includes any of the Savings Period; provided that any such
pro forma change to such Consolidated EBITDA will be without duplication for
cost savings and costs actually realized and already included in such
Consolidated EBITDA. If since the beginning of such period any Person (that
subsequently became a Restricted Subsidiary or was merged with or into the
Borrower or any Restricted Subsidiary since the beginning of such period) will
have made any Investment, acquisition, disposition, merger or consolidation or
discontinued operations that would have required adjustment pursuant to this
definition, then the Consolidated Fixed Charge Coverage Ratio will be calculated
giving pro forma effect thereto for such period as if such Investment,
acquisition, disposition, merger, consolidation or discontinued operation had
occurred at the beginning of the applicable four-quarter period.
"Consolidated Fixed Charges" means, for any period, the sum of the
following determined on a Consolidated basis, without duplication, for the
Borrower and its Restricted Subsidiaries in accordance with GAAP: (a)
Consolidated Interest Expense, whether paid or accrued, excluding amortization
of debt issuance costs and original issue discount and other non-cash interest
payments, plus, (b) the consolidated interest that was capitalized during such
period, plus, (c) any interest expense on Indebtedness of another Person that is
a Guaranty Obligation of the Borrower or one of its Restricted Subsidiaries or
secured by a Lien on assets of the Borrower or one of its Restricted
Subsidiaries, whether or not such Guaranty Obligation or Lien is called upon,
plus, (d) the product of (i) all dividends, whether paid or accrued and whether
or not in cash, on any series of preferred stock, other than (1) dividends on
Capital Stock payable in Capital Stock of the Borrower (other than Disqualified
Stock) or (2) dividends to the Borrower or a Restricted Subsidiary of the
Borrower, times (ii) a fraction, the numerator of which is one and the
denominator of which is one minus the then current combined federal, state and
local effective cash tax rate of the Borrower, expressed as a decimal.
"Consolidated Interest Expense" means, with respect to the Borrower
and its Restricted Subsidiaries for any period, the interest expense (including,
without limitation, interest expense attributable to Capital Leases and all net
payment obligations pursuant to Hedging Agreements) of the Borrower and its
Restricted Subsidiaries, all determined for such period on a Consolidated basis,
without duplication, in accordance with GAAP.
"Consolidated Net Income" means, with respect to the Borrower and its
Restricted Subsidiaries, for any period, the aggregate of the Net Income of the
Borrower and its Restricted Subsidiaries for such period, on a Consolidated
basis, determined in accordance with GAAP; provided that: (a) the Net Income
(but not loss) of any Person that is not a Restricted Subsidiary or that is
accounted for by the equity method of accounting will be included only to the
extent of the amount of dividends or distributions paid in cash to the Borrower
or a Restricted Subsidiary, (b) the Net Income of any Restricted Subsidiary will
be excluded to the extent that the declaration or payment of dividends or
similar distributions by that Restricted Subsidiary of that Net Income is not at
the date of determination permitted without any prior governmental approval
(that has not been obtained) or, directly or indirectly, by operation of the
terms of its charter or any agreement, instrument, judgment, decree, order,
statute, rule or governmental regulation applicable to that Restricted
Subsidiary or its stockholders, (c) the cumulative effect of a change in
accounting principles will be excluded, and (d) the Net Income or loss of any
7
Unrestricted Subsidiary will be excluded, whether or not distributed to the
Borrower or one of its Subsidiaries.
"Consolidated Tangible Assets" means the total assets, less goodwill
and other intangibles, shown on the Borrower's most recent Consolidated balance
sheet, determined on a Consolidated basis in accordance with GAAP less all
write-ups (other than write-ups in connection with acquisitions) subsequent to
the Closing Date in the book value of any asset (except any such intangible
assets) owned by the Borrower or any of its Restricted Subsidiaries.
"Consolidated Total Leverage Ratio" means, as of any date of
determination, the ratio of (a) Consolidated Total Indebtedness on such date to
(b) Consolidated EBITDA for the most recently ended period of four (4)
consecutive fiscal quarters for which financial statements have been delivered
pursuant to Section 7.1 ending on or immediately prior to such date.
"Consolidated Total Indebtedness" means, as of any date of
determination with respect to the Borrower and its Restricted Subsidiaries on a
Consolidated basis without duplication, the sum of all Indebtedness of the
Borrower and its Restricted Subsidiaries.
"Continuing Directors" means, as of any date of determination, any
member of the board of directors of the Borrower who (i) was a member of such
board of directors on the Closing Date or (2) was nominated for election or
elected to such board of directors with the approval of a majority of the
Continuing Directors who were members of such board of directors at the time of
such nomination or election.
"Credit Facility" means, collectively, the Revolving Credit Facility,
the Swingline Facility and the L/C Facility.
"Credit Parties" means, collectively, the Borrower and the Subsidiary
Guarantors.
"Default" means any of the events specified in Section 11.1 that with
the passage of time, the giving of notice or any other condition, would
constitute an Event of Default.
"Defaulting Lender" means any Lender that (a) has failed to fund any
portion of the Revolving Credit Loans, participations in L/C Obligations or
participations in Swingline Loans required to be funded by it hereunder within
one Business Day of the date required to be funded by it hereunder and such
failure continues to exist, (b) has otherwise failed to pay over to the
Administrative Agent or any other Lender any other amount required to be paid by
it hereunder within one Business Day of the date when due and such failure
continues to exist, unless such amount is the subject of a good faith dispute,
or (c) has been deemed insolvent or become the subject of a bankruptcy or
insolvency proceeding.
"Designated Asset Contract" means each of the following contracts
pursuant to which the Borrower or any of its Restricted Subsidiaries has granted
(a) an option to purchase a Designated Asset for the Designated Asset Value or
(b) a right of reversion of all or a portion of the Borrower or a Restricted
Subsidiary's ownership in such Designated Assets, in each case as in effect on
the date of this Agreement: (i) Standard Form Lease Agreement, East Mesa
Detention Facility, dated October 30, 1997, between the County of San Diego and
Corrections Corporation of America; (ii) Lease Agreement, dated April 30, 1996,
between Huerfano County and
8
Corrections Corporation of America; (iii) Request for Proposal Number
0000-000-000000 Issued on behalf of the Georgia Department of Corrections re:
Bid of Private Prisons in Coffee and Xxxxxxx Counties; (iv) Contract No.
467-019-955259-1, dated July 24, 1996, between the Georgia Department of
Corrections and Corrections Corporation of America; (v) Contract No.
467-019-955259-2, dated July 24, 1996, between the Georgia Department of
Corrections and Corrections Corporation of America; (vi) Agreement, dated
October 6, 1998, between the Tallahatchie County Correctional Authority and
Corrections Corporation of America, as amended by that certain Amendment No. 1
to Agreement dated May 18, 2000, between the Tallahatchie County Correctional
Authority and Corrections Corporation of America; (vii) Contract for Facility
Development - Design, Build, dated July 22, 1998, between the Montana Department
of Corrections and Corrections Corporation of America; (viii) Contractual
Agreement, dated July 1, 1997, between the State of Oklahoma Department of
Corrections and Corrections Corporation of America; (ix) Correctional Services
Contract, dated July 1, 1998, between the State of Oklahoma Department of
Corrections and Corrections Corporation of America; (x) Lease Agreement, dated
April 15, 1985, between the County of Shelby and Corrections Corporation of
America; (xi) Contract, dated February 25, 1986, between the Tennessee
Department of Finance and Administration and Corrections Corporation of America;
(xii) Lease Agreement, dated January 1997, between the District of Columbia and
Corrections Corporation of America; (xiii) Incarceration Agreement, dated
October 23, 2002, between the State of Tennessee, Department of Correction and
Xxxxxxxx County, Tennessee and the related Contract for the Lease of Whiteville
Correctional Facility, dated October 9, 2002, between Xxxxxxxx County, Tennessee
and Corrections Corporation of America; and (xiv) any contract entered into
after the Closing Date under which the Borrower or any of its Restricted
Subsidiaries has granted (a) an option to purchase a Designated Asset for the
Designated Asset Value or (b) a right of reversion of all or a portion of its
ownership in such Designated Asset; provided that such contract is entered into
in the ordinary course of business, is consistent with past practices and is
preceded by a resolution of the board of directors of the Borrower set forth in
an officer's certificate, in form and substance reasonably satisfactory to the
Administrative Agent, certifying that such contract has been approved by a
majority of the members of the board of directors of the Borrower and the option
to purchase or right to reversion in such contract is on terms the board of
directors of the Borrower has determined to be reasonable and in the best
interest of the Borrower.
"Designated Asset Value" means the aggregate consideration specified
in a Designated Asset Contract to be received by the Borrower or a Restricted
Subsidiary upon the exercise of an option to acquire a Designated Asset pursuant
to the terms of a Designated Asset Contract.
"Designated Assets" means those Prison Facilities owned by the
Borrower or any of its Restricted Subsidiaries that are located in San Diego,
California; Walensburg, Colorado; Xxxxxxx, Georgia; Alamo, Georgia; Tutweiler,
Mississippi; Shelby, Montana; Xxxxxxx, Oklahoma; Holdenville, Oklahoma; Memphis,
Tennessee; Whiteville, Tennessee; and Washington, D.C.; and other Prison
Facilities acquired by the Borrower or a Restricted Subsidiary after the Closing
Date, in each case so long as, and to the extent that, the Borrower or such
Restricted Subsidiary has granted an option to purchase such Prison Facility (or
provided for the reversion of the Borrower's (or such Restricted Subsidiary's)
ownership interest in all or a portion of such Prison Facility) pursuant to a
Designated Asset Contract. The book value of
9
each of the Prison Facilities designated as Designated Assets as of December 31,
2005 is set forth on Schedule 1.1(c).
"Designated Non-Cash Consideration" means the fair market value of the
total consideration received by the Borrower or any of its Restricted
Subsidiaries in connection with an Asset Disposition that is so designated as
Designated Non-Cash Consideration pursuant to an officer's certificate of the
Borrower, setting forth the basis of such valuation, executed by the Borrower's
principal executive officer or principal financial officer, less the amount of
cash or Cash Equivalents received in connection with the Asset Disposition, in
form reasonably satisfactory to the Administrative Agent; provided, however,
that if the Designated Non-Cash Consideration is in the form of Indebtedness the
total amount of such Designated Non-Cash Consideration outstanding at one time
shall not exceed the greater of (a) $15,000,000 and (b) 2.50% of Consolidated
Tangible Assets.
"Disputes" means any dispute, claim or controversy arising out of,
connected with or relating to this Agreement or any other Loan Document, between
or among parties hereto and to the other Loan Documents.
"Disqualified Stock" means any Capital Stock issued by any Credit
Party that, by its terms (or by the terms of any security into which it is
convertible, or for which it is exchangeable, in each case at the option of the
holder of the Capital Stock), or upon the happening of any event, matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or
redeemable at the option of the holder of the Capital Stock, prior to the date
that is six (6) months after the Revolving Credit Maturity Date. Notwithstanding
the preceding sentence, any Capital Stock that would constitute Disqualified
Stock solely because the holders of the Capital Stock have the right to require
the Borrower to repurchase such Capital Stock upon the occurrence of a change of
control or an asset sale will not constitute Disqualified Stock if the terms of
such Capital Stock provide that the Borrower may not repurchase or redeem any
such Capital Stock pursuant to such provisions unless such repurchase or
redemption complies with the provisions of this Agreement.
"Dollars" or "$" means, unless otherwise qualified, dollars in lawful
currency of the United States.
"Domestic Subsidiary" means any Subsidiary organized under the laws of
any political subdivision of the United States.
"Eligible Assignee" means (a) a Lender, (b) an Affiliate of a Lender,
(c) an Approved Fund, and (d) any other Person (other than a natural person)
approved by (i) the Administrative Agent and (ii) unless a Default or Event of
Default has occurred and is continuing, the Borrower (each such approval not to
be unreasonably withheld or delayed); provided that notwithstanding the
foregoing, "Eligible Assignee" shall not include the Borrower or any of the
Borrower's Affiliates or Subsidiaries.
"Employee Benefit Plan" means (a) any employee benefit plan within the
meaning of Section 3(3) of ERISA that is maintained for employees of any Credit
Party or (b) any Pension
10
Plan or Multiemployer Plan that has at any time within the preceding six (6)
years been maintained for the employees of any Credit Party or any current or
former ERISA Affiliate.
"Environmental Claims" means any and all administrative, regulatory or
judicial actions, suits, demands, demand letters, claims, liens, accusations,
allegations, notices of noncompliance or violation, investigations (other than
internal reports prepared by any Person in the ordinary course of business and
not in response to any third party action or request of any kind) or proceedings
relating in any way to any actual or alleged violation of or liability under any
Environmental Law or relating to any permit issued, or any approval given, under
any such Environmental Law, including, without limitation, any and all claims by
Governmental Authorities for enforcement, cleanup, removal, response, remedial
or other actions or damages, contribution, indemnification cost recovery,
compensation or injunctive relief resulting from Hazardous Materials or arising
from alleged injury or threat of injury to human health or the environment.
"Environmental Laws" means any and all federal, foreign, state,
provincial and local laws, statutes, ordinances, codes, rules, standards and
regulations, permits, licenses, approvals, interpretations and orders of courts
or Governmental Authorities, relating to the protection of the environment,
including, but not limited to, requirements pertaining to the manufacture,
processing, distribution, use, treatment, storage, disposal, transportation,
handling, reporting, licensing, permitting, investigation or remediation of
Hazardous Materials.
"Equity Issuance" means any issuance by the Borrower or any Restricted
Subsidiary to any Person that is not a Credit Party of (a) shares of its Capital
Stock, (b) any shares of its Capital Stock pursuant to the exercise of options
or warrants or (c) any shares of its Capital Stock pursuant to the conversion of
any debt securities to equity.
"ERISA" means the Employee Retirement Income Security Act of 1974, and
the rules and regulations thereunder, each as amended or modified from time to
time.
"ERISA Affiliate" means any Person who together with the Borrower or
any Subsidiary of the Borrower is treated as a single employer within the
meaning of Section 414(b), (c), (m) or (o) of the Code or Section 4001(b) of
ERISA.
"Eurodollar Reserve Percentage" means, for any day, the percentage
(expressed as a decimal and rounded upwards, if necessary, to the next higher
1/100th of 1%) that is in effect for such day as prescribed by the Board of
Governors of the Federal Reserve System (or any successor) for determining the
maximum reserve requirement (including, without limitation, any basic,
supplemental or emergency reserves) in respect of eurocurrency liabilities or
any similar category of liabilities for a member bank of the Federal Reserve
System in New York City.
"Event of Default" means any of the events specified in Section 11.1;
provided that any requirement for passage of time, giving of notice, or any
other condition, has been satisfied.
"Excess Proceeds" has the meaning assigned thereto in Section 10.4(p).
"Excluded Taxes" means, with respect to the Administrative Agent, any
Lender, any applicable Issuing Lender or any other recipient of any payment to
be made by or on account of
11
any obligation of the Borrower hereunder, (a) taxes imposed on or measured by
its overall net income (however denominated), and franchise and excise 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) any branch
profits taxes imposed by the United States or any similar tax imposed by any
other jurisdiction in which the Borrower is located and (c) in the case of a
Foreign Lender (other than an assignee pursuant to a request by the Borrower
under Section 4.12(b)), any withholding tax that is imposed on amounts payable
to such Foreign Lender at the time such Foreign Lender becomes a party hereto
(or designates a new Lending Office) or is attributable to such Foreign Lender's
failure or inability (other than as a result of a Change in Law) to comply with
Section 4.11(e), except to the extent that such Foreign Lender (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 Section 4.11(a).
"Existing Credit Facility" means that certain Third Amended and
Restated Credit Agreement dated as of May 3, 2002, by and among the Borrower,
the Lenders party thereto and Xxxxxx Commercial Paper Inc., as administrative
agent, as amended prior to the date hereof.
"Existing Letters of Credit" means those letters of credit issued by
Wachovia, existing prior to the Closing Date and identified on Schedule 1.1(a).
"Extensions of Credit" means, as to any Lender at any time, (a) an
amount equal to the sum of (i) the aggregate principal amount of all Revolving
Credit Loans made by such Lender then outstanding, (ii) such Lender's Revolving
Credit Commitment Percentage of the L/C Obligations then outstanding, (iii) such
Lender's Revolving Credit Commitment Percentage of the Swingline Loans then
outstanding, or (b) the making of any Loan or participation in any Letter of
Credit by such Lender, as the context requires.
"FDIC" means the Federal Deposit Insurance Corporation, or any
successor thereto.
"Federal Funds Rate" means, the rate per annum (rounded upwards, if
necessary, to the next higher 1/100th of 1%) representing the daily effective
federal funds rate as quoted by the Administrative Agent and confirmed in
Federal Reserve Board Statistical Release H.15 (519) or any successor or
substitute publication selected by the Administrative Agent. If, for any reason,
such rate is not available, then "Federal Funds Rate" shall mean a daily rate
that is determined, in the opinion of the Administrative Agent, to be the rate
at which federal funds are being offered for sale in the national federal funds
market at 9:00 a.m. Rates for weekends or holidays shall be the same as the rate
for the most immediately preceding Business Day.
"Fee Letter" means the separate fee letter agreement executed by the
Borrower and the Administrative Agent and/or certain of its affiliates dated
January 11, 2006.
"Fiscal Year" means each fiscal year of the Borrower and its
Subsidiaries ending on December 31.
"Foreign Lender" 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
12
definition, the United States, each State thereof and the District of Columbia
shall be deemed to constitute a single jurisdiction.
"Foreign Subsidiary" means any Subsidiary that is not a Domestic
Subsidiary.
"GAAP" means generally accepted accounting principles, as recognized
by the American Institute of Certified Public Accountants and the Financial
Accounting Standards Board, consistently applied and maintained on a consistent
basis for the Borrower and its Subsidiaries throughout the period indicated and
(subject to Section 13.9) consistent with the prior financial practice of the
Borrower and its Subsidiaries.
"Governmental Approvals" means all authorizations, consents,
approvals, permits, licenses and exemptions of, registrations and filings with,
and reports to, all Governmental Authorities.
"Governmental Authority" means the government of the United States 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).
"Government Securities" means securities issued or directly and fully
guaranteed or insured by the United States government or any agency or
instrumentality of the United States government (provided that the full faith
and credit of the United States is pledged in support of those securities).
"Guaranty Obligation" means, with respect to the Borrower and its
Restricted Subsidiaries, without duplication, any obligation, contingent or
otherwise, of any such Person pursuant to which such Person has directly or
indirectly guaranteed any Indebtedness of any other Person and, without limiting
the generality of the foregoing, any obligation, direct or indirect, contingent
or otherwise, of any such Person (a) to purchase or pay (or advance or supply
funds for the purchase or payment of) such Indebtedness (whether arising by
virtue of partnership arrangements, by agreement to keep well, to purchase
assets, goods, securities or services, to take-or-pay, or to maintain financial
statement condition or otherwise) or (b) entered into for the purpose of
assuring in any other manner the obligee of such Indebtedness of the payment
thereof or to protect such obligee against loss in respect thereof (in whole or
in part); provided, that the term Guaranty Obligation shall not include
endorsements for collection or deposit in the ordinary course of business;
provided further that the term Guaranty Obligations shall not include any
Indebtedness of the Borrower under the Forward Delivery Deficits Agreement,
dated as of September 25, 1997, by and between the Borrower and Wachovia Bank,
National Association, as trustee, or under the Debt Service Deficits Agreement,
dated as of January 1, 1997, by and between the Borrower and Xxxxxxxx County
Correctional Facilities Corporation, each as in effect on the Closing Date,
provided that and for so long as such Indebtedness is not required to be
classified as debt of the Borrower or any Restricted Subsidiary pursuant to
GAAP.
13
"Hazardous Materials" means any substances or materials (a) that are
or become defined as hazardous wastes, hazardous substances, pollutants,
contaminants, or toxic substances under any Environmental Law, (b) that are
toxic, explosive, corrosive, flammable, infectious, radioactive, carcinogenic,
mutagenic or otherwise harmful to human health or the environment and are or
become regulated by any Governmental Authority, (c) the presence of which
requires investigation or remediation under any Environmental Law, (d) the
discharge or emission or release of which requires a permit or license under any
Environmental Law, (e) that are deemed to constitute a nuisance or a trespass
that pose a health or safety hazard to Persons or neighboring properties under
any Environmental Law, or (f) that contain, without limitation, asbestos,
polychlorinated biphenyls, urea formaldehyde foam insulation, petroleum
hydrocarbons, petroleum derived substances or waste, crude oil or nuclear fuel.
"Hedging Agreement" means any agreement with respect to any Interest
Rate Contract, forward rate agreement, commodity swap, forward foreign exchange
agreement, currency swap agreement, cross-currency rate swap agreement, currency
option agreement or other agreement or arrangement designed to alter the risks
of any Person arising from fluctuations in interest rates, currency values or
commodity prices, all as amended, restated, supplemented or otherwise modified
from time to time.
"Hedging Obligations" means all existing or future payment and other
obligations owing by the Borrower under any Hedging Agreement (which such
Hedging Agreement is permitted hereunder) with any Person that is a Lender or an
Affiliate of a Lender at the time such Hedging Agreement is executed.
"Incremental Revolving Credit Commitment Effective Date" means the
date, which shall be a Business Day, on or before the Revolving Credit Maturity
Date, but no earlier than thirty (30) days after the date of delivery of the
applicable Incremental Revolving Credit Commitment Notification (unless a
shorter period is agreed to by the affected Lenders), on which each of the
applicable increases to the Revolving Credit Commitment shall become effective
pursuant to Section 2.7.
"Incremental Revolving Credit Commitment Notification" has the meaning
assigned thereto in Section 2.7.
"Incremental Term Loan Agreement" means each agreement executed
pursuant to Section 2.8 by the Borrower and an existing Lender or a Person not
theretofore a Lender, as applicable, and acknowledged by the Administrative
Agent and each Guarantor, providing for an Incremental Term Loan hereunder,
acknowledging that any Person not theretofore a Lender shall be a party hereto
and have the rights and obligations of a Lender hereunder, and setting forth the
Incremental Term Loan Commitment of such Lender.
"Incremental Term Loan Commitment" means (a) as to any Lender, the
obligation of such Lender to make Incremental Term Loans to or for the account
of the Borrower hereunder in an aggregate principal amount not to exceed the
amount set forth opposite such Lender's name on the Register, as such amount may
be increased, reduced or otherwise modified at any time or from time to time
pursuant to the terms hereof and (b) as to all Lenders, the aggregate
obligations of all Lenders to make the Incremental Term Loans, as applicable to
the account of the
14
Borrower, as such amount may be increased, reduced or otherwise modified at any
time or from time to time. The Incremental Term Loan Commitment of all Lenders
as of the Closing Date shall be $0.
"Incremental Term Loan Effective Date" means the date, which shall be
a Business Day, on or before the Revolving Credit Maturity Date, but no earlier
than thirty (30) days after the date of delivery of the applicable Incremental
Term Loan Notification (unless a shorter period is agreed to by the affected
Lenders), on which each of the Incremental Term Loan Lenders shall make
Incremental Term Loans to the Borrower pursuant to Section 2.8.
"Incremental Term Loan Lender" has the meaning assigned thereto in
Section 2.8.
"Incremental Term Loan Notification" has the meaning assigned thereto
in Section 2.8(a).
"Incremental Term Loans" means any incremental term loans made to the
Borrower pursuant to Section 2.8, and all such incremental term loans
collectively as the context requires.
"Indebtedness" means, with respect to the Borrower and its Restricted
Subsidiaries at any date and without duplication, the sum of the following
calculated in accordance with GAAP:
(a) all liabilities, obligations and indebtedness for borrowed money
including, but not limited to, obligations evidenced by bonds, debentures, notes
or other similar instruments of any such Person;
(b) all obligations to pay the deferred purchase price of property or
services of any such Person (including, without limitation, all obligations
under non-competition, earn-out or similar agreements), excluding trade payables
arising in the ordinary course of business;
(c) the Attributable Indebtedness of such Person with respect to such
Person's obligations in respect of Capital Leases and Synthetic Leases;
(d) all Indebtedness of any other Person secured by a Lien on any asset
owned or being purchased by such Person (including indebtedness arising under
conditional sales or other title retention agreements), whether or not such
indebtedness shall have been assumed by such Person or is limited in recourse
(but excluding any such Indebtedness arising as a result of a Lien on the
Capital Stock of Agecroft);
(e) all Guaranty Obligations of any such Person;
(f) all obligations, contingent or otherwise, of any such Person relative
to the face amount of letters of credit, whether or not drawn, including,
without limitation, any Reimbursement Obligation, and banker's acceptances
issued for the account of any such Person;
(g) all obligations of any such Person to redeem, repurchase, exchange,
defease or otherwise make payments in respect of Capital Stock of such Person;
and
(h) all Net Hedging Obligations.
15
For all purposes hereof, the Indebtedness of any Person shall include
the Indebtedness of any partnership or joint venture (other than a joint venture
that is itself a corporation or limited liability company) in which such Person
is a general partner or a joint venturer, unless such Indebtedness is expressly
made non-recourse to such Person.
"Indemnified Taxes" means Taxes and Other Taxes other than Excluded
Taxes.
"Interest Period" has the meaning assigned thereto in Section 4.1(b).
"Interest Rate Contract" means any interest rate swap agreement,
interest rate cap agreement, interest rate floor agreement, interest rate collar
agreement, interest rate option or any other agreement regarding the hedging of
interest rate risk exposure executed in connection with hedging the interest
rate exposure of any Person and any confirming letter executed pursuant to such
agreement, all as amended, restated, supplemented or otherwise modified from
time to time.
"Investments" means, with respect to any Person, without duplication,
all direct or indirect investments by such Person in other Persons (including
Affiliates) in the forms of loans (including Guaranty Obligations or other
obligations), advances or capital contributions (excluding commission, travel
and similar advances to officers and employees made in the ordinary course of
business), purchases or other acquisitions for consideration of Indebtedness,
Capital Stock or other securities, together with all items that are or would be
classified as investments on a balance sheet prepared in accordance with GAAP.
"ISP98" means the International Standby Practices (1998 Revision,
effective January 1, 1999), International Chamber of Commerce Publication No.
590.
"Issuing Lender" means (a) Wachovia, in its capacity as issuer of any
Letters of Credit, or any successor thereto and (b) any Additional Issuing
Lender, in its capacity as issuer of any Letters of Credit. If there is more
than one Issuing Lender at any time, the term "Issuing Lender" shall be deemed
to refer to each of them individually.
"L/C Commitment" means the lesser of (a) One Hundred Million Dollars
($100,000,000) and (b) the Revolving Credit Commitment.
"L/C Facility" means the letter of credit facility established
pursuant to Article III.
"L/C Obligations" means at any time, an amount equal to the sum of (a)
the aggregate undrawn and unexpired amount of the then outstanding Letters of
Credit and (b) the aggregate amount of drawings under Letters of Credit that
have not then been reimbursed pursuant to Section 3.5.
"L/C Participants" means the collective reference to all the Lenders
other than the applicable Issuing Lender.
"Lender" means each Person executing this Agreement as a Lender
(including, without limitation, the applicable Issuing Lender and the Swingline
Lender unless the context otherwise requires) set forth on the signature pages
hereto and each Person that hereafter becomes a party to this Agreement as a
Lender pursuant to Section 2.7, Section 2.8 or Section 13.10.
16
"Lender Addition and Acknowledgment Agreement" means each agreement
executed pursuant to Section 2.7 by the Borrower and an existing Lender or a
Person not theretofore a Lender, as applicable, and acknowledged by the
Administrative Agent and each Subsidiary Guarantor, providing for an increase in
the Revolving Credit Commitment hereunder, acknowledging that any Person not
theretofore a Lender shall be a party hereto and have the rights and obligations
of a Lender hereunder, and setting forth the Revolving Credit Commitment of such
Lender.
"Lending Office" means, with respect to any Lender, the office of such
Lender maintaining such Lender's Extensions of Credit.
"Letter of Credit Application" means an application, in the form
specified by the applicable Issuing Lender from time to time, requesting the
applicable Issuing Lender to issue a Letter of Credit.
"Letters of Credit" means the collective reference to letters of
credit issued pursuant to Section 3.1 and the Existing Letters of Credit.
"LIBOR" means the rate of interest per annum determined on the basis
of the rate for deposits in Dollars in minimum amounts of at least $5,000,000
for a period equal to the applicable Interest Period that appears on the
Telerate Page 3750 at approximately 11:00 a.m. (London time) two (2) Business
Days prior to the first day of the applicable Interest Period (rounded upward,
if necessary, to the nearest 1/100th of 1%). If, for any reason, such rate does
not appear on Telerate Page 3750, then "LIBOR" shall be reasonably determined by
the Administrative Agent to be the arithmetic average of the rate per annum at
which deposits in Dollars in minimum amounts of at least $5,000,000 would be
offered by first class banks in the London interbank market to the
Administrative Agent at approximately 11:00 a.m. (London time) two (2) Business
Days prior to the first day of the applicable Interest Period for a period equal
to such Interest Period. Each calculation by the Administrative Agent of LIBOR
shall be conclusive and binding for all purposes, absent manifest error.
"LIBOR Rate" means a rate per annum (rounded upwards, if necessary, to
the next higher 1/100th of 1%) determined by the Administrative Agent pursuant
to the following formula:
LIBOR
LIBOR Rate = ----------------------------------
1.00-Eurodollar Reserve Percentage
"LIBOR Rate Loan" means any Loan bearing interest at a rate based upon
the LIBOR Rate as provided in Section 4.1(a).
"Lien" means, with respect to any asset, any mortgage, leasehold
mortgage, lien, pledge, charge, security interest, hypothecation or encumbrance
of any kind in respect of such asset. For the purposes of this Agreement, a
Person shall be deemed to own subject to a Lien any asset that it has acquired
or holds subject to the interest of a vendor or lessor under any conditional
sale agreement, Capital Lease or other title retention agreement relating to
such asset and having substantially the same economic effect as any of the
foregoing.
17
"Loan Documents" means, collectively, this Agreement, each Note, the
Letter of Credit Applications, the Subsidiary Guaranty Agreement, the Security
Documents, and each other document, instrument, certificate and agreement
executed and delivered by the Borrower or any Restricted Subsidiary in
connection with this Agreement or otherwise referred to herein or contemplated
hereby (excluding any Hedging Agreement), all as may be amended, restated,
supplemented or otherwise modified from time to time.
"Loans" means the collective reference to the Revolving Credit Loans
and the Swingline Loans and "Loan" means any of such Loans.
"Material Adverse Effect" means a material adverse effect on (a) the
properties, business, operations or condition (financial or otherwise) of the
Borrower and its Restricted Subsidiaries, taken as a whole, or (b) the ability
of the Borrower and its Restricted Subsidiaries, taken as a whole, to perform
their obligations under the Loan Documents to which they are parties.
"Material Indebtedness" means (a) any Indebtedness or Guaranty
Obligations of the Borrower or any of its Restricted Subsidiaries involving
monetary liability of or to any such Person in an amount in excess of
$15,000,000 per annum, (b) the Senior Unsecured Notes and any documents related
thereto, and (c) the documentation governing any Qualified Trust Indebtedness.
"Moody's" means Xxxxx'x Investor Service, Inc.
"Multiemployer Plan" means a "multiemployer plan" as defined in
Section 4001(a)(3) of ERISA to which the Borrower or any ERISA Affiliate is
making, or is accruing an obligation to make, or has accrued an obligation to
make contributions within the preceding six (6) years.
"Net Hedging Obligations" means, as of any date, the Termination Value
of any such Hedging Agreement on such date.
"Net Income" means, with respect to the Borrower and its Restricted
Subsidiaries for any period, the net income (loss) of the Borrower and its
Restricted Subsidiaries, determined in accordance with GAAP and before any
reduction in respect of preferred stock dividends, excluding, however: (a) any
gain or loss, together with any related provision for taxes on such gain or
loss, realized in connection with: (i) any Asset Disposition; or (ii) the
disposition of any securities by the Borrower or any of its Restricted
Subsidiaries or the extinguishment of any Indebtedness of the Borrower or any of
its Restricted Subsidiaries (whether by redemption, repurchase, defeasance,
repayment or otherwise), and any related premiums, fees and expenses, (b) any
extraordinary gain or loss, together with any related provision for taxes on
such extraordinary gain or loss, (c) any impairment losses (including, but not
limited to, those resulting from impairment of goodwill recorded on the
Consolidated financial statement of the Borrower or a Restricted Subsidiary
pursuant to SFAS No. 142 "Goodwill and Other Intangible Assets" and those
resulting from impairment or disposal of long-lived assets recorded on the
Consolidated financial statements of the Borrower or a Restricted Subsidiary
pursuant to SFAS No. 144 "Accounting for the Impairment or Disposal of
Long-Lived Assets", (d) any loss resulting from the change in fair value of a
derivative financial instrument pursuant to SFAS No.
18
133 "Accounting for Derivative Instruments and Hedging Activities", (e)
amortization of debt issuance costs and (f) any Capital Stock-based compensation
expense.
"Net Proceeds" means the aggregate cash proceeds received by the
Borrower or any of its Restricted Subsidiaries in respect of any Asset
Disposition (including, without limitation, any cash or Cash Equivalents
received upon the sale or other disposition of any non-cash consideration,
including Designated Non-Cash Consideration received in any Asset Disposition
and deemed to be cash pursuant to and in compliance with Section 10.4(p)
hereof), net of the direct costs relating to such Asset Disposition, including,
without limitation, legal, accounting and investment banking fees, and sales
commissions, and any relocation expenses incurred as a result of the Asset
Disposition, taxes paid or payable as a result of the Asset Disposition, in each
case, after taking into account any available tax credits or deductions and any
tax sharing arrangements, and amounts required to be applied to the repayment of
Indebtedness (other than Indebtedness under this Agreement) secured by a Lien on
the asset or assets that were the subject of such Asset Disposition and any
reserve for adjustment in respect of the sale price of such asset or assets
established in accordance with GAAP.
"New Incremental Term Loan Lender" has the meaning assigned thereto in
Section 2.8.
"Notes" means the collective reference to the Revolving Credit Notes
and the Swingline Note.
"Notice of Account Designation" has the meaning assigned thereto in
Section 2.3(b).
"Notice of Borrowing" has the meaning assigned thereto in Section
2.3(a).
"Notice of Conversion/Continuation" has the meaning assigned thereto
in Section 4.2.
"Notice of Prepayment" has the meaning assigned thereto in Section
2.4(c).
"Obligations" means, in each case, whether now in existence or
hereafter arising: (a) the principal of and interest on (including interest
accruing after the filing of any bankruptcy or similar petition) the Loans, (b)
the L/C Obligations, (c) all Hedging Obligations and (d) all other fees and
commissions (including attorneys' fees), charges, indebtedness, loans,
liabilities, financial accommodations, obligations, covenants and duties owing
by the Borrower or any of its Restricted Subsidiaries to the Lenders or the
Administrative Agent, in each case under any Loan Document, with respect to any
Loan or Letter of Credit 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.
"OFAC" means the U.S. Department of the Treasury's Office of Foreign
Assets Control.
"Officer's Compliance Certificate" means a certificate of the chief
financial officer or the treasurer of the Borrower substantially in the form of
EXHIBIT F.
"Operating Lease" means, as to any Person as determined in accordance
with GAAP, any lease of property (whether real, personal or mixed) by such
Person as lessee that is not a Capital Lease.
19
"Other Taxes" means 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.
"Participant" has the meaning assigned thereto in Section 13.11(d).
"PBGC" means the Pension Benefit Guaranty Corporation or any successor
agency.
"Pension Plan" means any Employee Benefit Plan, other than a
Multiemployer Plan, which is subject to the provisions of Title IV of ERISA or
Section 412 of the Code and which (a) is maintained for the employees of the
Borrower or any ERISA Affiliates or (b) has at any time within the preceding six
(6) years been maintained for the employees of the Borrower or any of its
current or former ERISA Affiliates.
"Permitted Acquisition" means any investment by the Borrower or any
Restricted Subsidiary in the form of acquisitions of all or substantially all of
the business or a line of business (whether by the acquisition of capital stock,
assets or any combination thereof) of any other Person if such acquisition meets
all of the following requirements:
(a) the Person or business to be acquired shall be engaged primarily in a
Permitted Business;
(b) if such transaction is a merger or consolidation, the Borrower or a
Restricted Subsidiary shall be the surviving Person and no Change of Control
shall have been effected thereby;
(c) the Borrower shall deliver to the Administrative Agent such documents
reasonably requested by the Administrative Agent pursuant to Section 8.11 to be
delivered at the time required pursuant to Section 8.11;
(d) in the case of any acquisition with an aggregate purchase price greater
than $50,000,000, no later than five (5) Business Days prior to the proposed
closing date of such acquisition, the Borrower (A) shall have delivered to the
Administrative Agent promptly upon the finalization thereof copies of
substantially final Permitted Acquisition Documents, which shall be in form and
substance reasonably satisfactory to the Administrative Agent, and (B) shall
have delivered to, or made available for inspection by, the Administrative Agent
substantially complete Permitted Acquisition Diligence Information, which shall
be in form and substance reasonably satisfactory to the Administrative Agent;
(e) no Event of Default shall have occurred and be continuing both before
and after giving effect to such acquisition; and
(f) the Borrower shall provide such other documents and other information
as may be reasonably requested by the Administrative Agent in connection with
the acquisition.
"Permitted Acquisition Diligence Information" means with respect to
any acquisition proposed by the Borrower or any Subsidiary Guarantor, to the
extent applicable, all material
20
financial information, all material contracts, all material customer lists, all
material supply agreements, and all other material information, in each case,
reasonably requested to be delivered to the Administrative Agent in connection
with such acquisition (except to the extent that any such information is (a)
subject to any confidentiality agreement, unless mutually agreeable arrangements
can be made to preserve such information as confidential, (b) classified or (c)
subject to any attorney-client privilege).
"Permitted Acquisition Documents" means with respect to any
acquisition proposed by the Borrower or any Subsidiary Guarantor, final copies
or substantially final drafts if not executed at the required time of delivery
of the purchase agreement, sale agreement, merger agreement or other agreement
evidencing such acquisition, including, without limitation, all legal opinions
and each other document executed, delivered, contemplated by or prepared in
connection therewith and any amendment, modification or supplement to any of the
foregoing.
"Permitted Business" means the business conducted by the Borrower and
its Restricted Subsidiaries on the Closing Date and businesses reasonably
related thereto or ancillary or incidental thereto or a reasonable extension
thereof, including the privatization of governmental services.
"Permitted Investments" means:
(a) any Investment in the Borrower or in a Restricted Subsidiary of the
Borrower;
(b) any Investment in cash or Cash Equivalents;
(c) any Permitted Acquisition;
(d) any Investment made as a result of the receipt of non-cash
consideration (including Designated Non-Cash Consideration) from an Asset
Disposition that was made pursuant to and in compliance with Section 10.4
hereof;
(e) any acquisition of assets solely in exchange for the issuance of
Capital Stock (other than Disqualified Stock) of the Borrower;
(f) any Investments received in compromise of obligations of trade
creditors or customers that were incurred in the ordinary course of business,
including pursuant to any plan of reorganization or similar arrangement upon the
bankruptcy or insolvency of any trade creditor or customer;
(g) Hedging Obligations;
(h) other Investments in any other Person having an aggregate fair market
value (measured on the date each such Investment was made and without giving
effect to subsequent changes in value), when taken together with all other
Investments made pursuant to this subsection (h), not to exceed $35,000,000;
21
(i) payroll, travel and similar advances to cover matters that are expected
at the time of such advances ultimately to be treated as expenses for accounting
purposes and that are made in the ordinary course of business;
(j) loans or advances to employees made in the ordinary course of business
of the Borrower or any Restricted Subsidiary not to exceed $5,000,000
outstanding at any one time;
(k) stock, obligations or securities received in settlement of debts
created in the ordinary course of business and owing to the Borrower or any
Restricted Subsidiary or in satisfaction of judgments or pursuant to any plan of
reorganization or similar arrangement upon the bankruptcy or insolvency of a
debtor;
(l) Investments in existence on the Closing Date and set forth on Schedule
1.1(b);
(m) Guaranty Obligations issued in accordance with Section 10.1 hereof;
(n) Investments that are made with Capital Stock of the Borrower (other
than Disqualified Stock of the Borrower);
(o) any Investment by the Borrower or any Restricted Subsidiary of the
Borrower in joint ventures in a Permitted Business not to exceed $15,000,000
outstanding at any one time; and
(p) any Investment in any Person that is not at the time of such
Investment, or does not thereby become, a Restricted Subsidiary in an aggregate
amount (measured on the date such Investment was made and without giving effect
to subsequent changes in value), when taken together with all other Investments
made pursuant to this clause (p) since the Closing Date (but, to the extent that
any Investment made pursuant to this clause (p) since the Closing Date is sold
or otherwise liquidated for cash, minus the lesser of (i) the cash return of
capital with respect to such Investment (less the cost of disposition, if any)
and (ii) the initial amount of such Investment) not to exceed ten percent (10%)
of Consolidated Tangible Assets; provided that, the Borrower or a Restricted
Subsidiary has entered, or concurrently with any such Investment enters, into a
long-term lease or management contract with respect to assets of such Person
that are used or useful in a Permitted Business.
"Permitted Liens" means the Liens permitted pursuant to Section 10.2.
"Person" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership, governmental
authority or other entity.
"PMI Notes" means those certain 4.0% convertible subordinated notes
due February 28, 2005 issued pursuant to that certain Note Purchase Agreement,
dated as of December 31, 1998, as amended on June 30, 2000, March 5, 2001 and
April 28, 2003, between the Borrower and PMI Mezzanine Fund, L.P.
"Prime Rate" means, at any time, the rate of interest per annum
publicly announced from time to time by Wachovia as its prime rate. 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
22
acknowledge that the rate announced publicly by Wachovia 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.
"Prison Facility" means any prison, correctional, detention or
juvenile facilities owned or operated by the Borrower or any of its Restricted
Subsidiaries.
"Purchase Notes" means notes or other obligations received by any
Credit Party in connection with an Asset Disposition of an Unoccupied Prison
Facility that is otherwise permitted pursuant to Section 10.4.
"Qualified Trust" means a trust or other special purpose vehicle
formed for the sole purpose of, and which is limited by its charter or other
organizational documents to conduct no business other than, issuing Qualified
Trust Preferred Stock and lending the proceeds from such issuance to the
Borrower.
"Qualified Trust Indebtedness" means Indebtedness of the Borrower or
its Restricted Subsidiaries to a Qualified Trust (a) in an aggregate principal
amount not exceeding the amount of funds raised by such trust from the issuance
of Qualified Trust Preferred Stock and (b) that by its terms (or by the terms of
any security into which it is convertible, or for which it is exchangeable, in
each case at the option of the Qualified Trust or the holder of any Qualified
Trust Preferred Stock), or upon the happening of any event, does not mature and
is not mandatorily redeemable, pursuant to a sinking fund obligation or
otherwise, or redeemable at the option of the Qualified Trust or any holder of
the Qualified Trust Preferred Stock, in whole or in part, on or prior to the
date that is 91 days after the Revolving Credit Maturity Date; provided that
such Qualified Trust Indebtedness may be redeemed pursuant to its terms upon a
change of control of the Borrower if the terms of such Qualified Trust
Indebtedness (a) define a "change of control" in a manner that is not more
expansive or inclusive than the change of control definition contained in this
Agreement and (b) explicitly provide that no payment shall be made with respect
to such Indebtedness upon a "change of control" unless such payment is permitted
by the provisions of this Agreement.
"Qualified Trust Preferred Stock" means a preferred stock or preferred
interest in a Qualified Trust the net proceeds from the issuance of which are
used to finance Qualified Trust Indebtedness and that, by its terms (or by the
terms of any security into which it is convertible, or for which it is
exchangeable, in each case at the option of the holder of the Qualified Trust
Preferred Stock), or upon the happening of any event, does not mature and is not
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or
redeemable at the option of the holder of the Qualified Trust Preferred Stock,
in whole or in part, on or prior to the date that is 91 days after the Revolving
Credit Maturity Date.
"Refinancing Indebtedness" has the meaning assigned thereto in Section
10.1(k).
"Register" has the meaning assigned thereto in Section 13.10(c).
"Reimbursement Obligation" means the obligation of the Borrower to
reimburse the applicable Issuing Lender pursuant to Section 3.5 for amounts
drawn under Letters of Credit.
23
"Related Parties" means, with respect to any Person, such Person's
Affiliates and the directors, officers, employees, agents and advisors of such
Person and of such Person's Affiliates.
"Required Lenders" means, at any date, any combination of Lenders
whose Revolving Credit Commitments aggregate more than fifty percent (50%) of
the Revolving Credit Commitment or, if the Revolving Credit Commitments have
been terminated pursuant to Section 11.2, any combination of Lenders holding
more than fifty percent (50%) of the aggregate Extensions of Credit; provided
that the Revolving Credit Commitment of, and the portion of the Extensions of
Credit, as applicable, held or deemed held by, any Defaulting Lender shall be
excluded for purposes of making a determination of Required Lenders.
"Responsible Officer" means the chief executive officer, president,
chief financial officer, controller, assistant controller, treasurer or
assistant treasurer of a Credit Party, or any other officer of a Credit Party
reasonably acceptable to the Administrative Agent. Any document delivered
hereunder that is signed by a Responsible Officer of a Credit Party shall be
conclusively presumed to have been authorized by all necessary corporate,
partnership and/or other action on the part of such Credit Party and such
Responsible Officer shall be conclusively presumed to have acted on behalf of
such Credit Party.
"Restricted Investment" means an Investment other than a Permitted
Investment.
"Restricted Payments" has the meaning assigned thereto in Section
10.5.
"Restricted Subsidiary" means any Subsidiary of the Borrower that is
not an Unrestricted Subsidiary.
"Revolving Credit Commitment" means (a) as to any Revolving Credit
Lender, the obligation of such Revolving Credit Lender to make Revolving Credit
Loans to the account of the Borrower hereunder in an aggregate principal amount
at any time outstanding not to exceed the amount set forth opposite such
Revolving Credit Lender's name on the Register, as such amount may be reduced or
modified at any time or from time to time pursuant to the terms hereof and (b)
as to all Revolving Credit Lenders, the aggregate commitment of all Revolving
Credit Lenders to make Revolving Credit Loans, as such amount may be reduced at
any time or from time to time pursuant to the terms hereof. The Revolving Credit
Commitment of all Revolving Credit Lenders on the Closing Date shall be One
Hundred Fifty Million Dollars ($150,000,000).
"Revolving Credit Commitment Percentage" means, as to any Revolving
Lender at any time, the ratio of (a) the amount of the Revolving Credit
Commitment of such Revolving Credit Lender to (b) the Revolving Credit
Commitments of all Revolving Credit Lenders.
"Revolving Credit Facility" means the revolving credit facility
established pursuant to Article II.
"Revolving Credit Lenders" means Lenders with a Revolving Credit
Commitment.
24
"Revolving Credit Loans" means any revolving loan made to the Borrower
pursuant to Section 2.1, and all such revolving loans collectively as the
context requires.
"Revolving Credit Maturity Date" means the earliest to occur of (a)
February 3, 2011, (b) the date of termination of the entire Revolving Credit
Commitment by the Borrower pursuant to Section 2.5(a)(i), or (c) the date of
termination of the Revolving Credit Commitment by the Administrative Agent on
behalf of the Lenders pursuant to Section 11.2(a).
"Revolving Credit Note" means a promissory note made by the Borrower
in favor of a Revolving Credit Lender evidencing the Revolving Credit Loans made
by such Lender, substantially in the form of EXHIBIT A-1, and any amendments,
supplements and modifications thereto, any substitutes therefor, and any
replacements, restatements, renewals or extension thereof, in whole or in part.
"S&P" means Standard & Poor's Ratings Group.
"Sanctioned Entity" shall mean (i) an agency of the government of,
(ii) an organization directly or indirectly controlled by, or (iii) a person
resident in a country that is subject to a sanctions program identified on the
list maintained by OFAC and available at
xxxx://xxx.xxxxx.xxx/xxxxxxx/xxxxxxxxxxx/xxxx/xxxxxxxxx/xxxxx.xxxx, or as
otherwise published from time to time as such program may be applicable to such
agency, organization or person.
"Sanctioned Person" shall mean a person named on the list of Specially
Designated Nationals or Blocked Persons maintained by OFAC available at
xxxx://xxx.xxxxx.xxx/xxxxxxx/ enforcement/ofac/sdn/index.html, or as otherwise
published from time to time.
"SEC" means the Securities and Exchange Commission.
"Security Documents" means the collective reference to the Collateral
Agreement and each other agreement or writing pursuant to which any Credit Party
purports to pledge or grant a security interest in any property or assets
securing the Obligations or any such Person purports to guaranty the payment
and/or performance of the Obligations, in each case, as amended, restated,
supplemented or otherwise modified from time to time.
"Senior Unsecured $150MM Notes" means the Indebtedness of the Borrower
evidenced by its 6.75% Senior Notes due 2014, in the original aggregate
principal amount of $150,000,000, issued pursuant to that certain Base Indenture
dated as of January 23, 2006, among the Borrower, certain of its Subsidiaries
and U.S. Bank National Association, as trustee, as amended by First Supplemental
Indenture dated January 23, 2006, in each case, as amended, restated,
supplemented or otherwise modified from time to time as permitted by the terms
and conditions of this Agreement.
"Senior Unsecured $200MM Notes" means the Indebtedness of the Borrower
evidenced by its 7.50% Senior Notes due 2011, in the original aggregate
principal amount of $200,000,000, issued pursuant to that certain Indenture
dated as of May 7, 2003 among the Borrower, certain of its Subsidiaries and U.S.
Bank National Association, as trustee, as amended by the Supplemental Indenture
dated May 7, 2003, the First Supplement dated August 8, 2003 and the Second
25
Supplement dated August 8, 2003, in each case, as amended, restated,
supplemented or otherwise modified from time to time as permitted by the terms
and conditions of this Agreement.
"Senior Unsecured $250MM Notes" means the Indebtedness of the Borrower
evidenced by its 7.50% Senior Notes due 2011, in the original aggregate
principal amount of $250,000,000, issued pursuant to that certain Indenture
dated as of May 7, 2003 among the Borrower, certain of its Subsidiaries and U.S.
Bank National Association, as trustee, as amended by the Supplemental Indenture
dated May 7, 2003, in each case, as amended, restated, supplemented or otherwise
modified from time to time as permitted by the terms and conditions of this
Agreement.
"Senior Unsecured $375MM Notes" means the Indebtedness of the Borrower
evidenced by its 6.25% Senior Notes due 2013, in the original principal amount
of $375,000,000, issued pursuant to that certain Indenture dated as of March 23,
2005 among the Borrower, certain of its Subsidiaries and U.S. Bank National
Association, as trustee, as amended, restated, supplemented or otherwise
modified from time to time as permitted by the terms and conditions of this
Agreement.
"Senior Unsecured Notes" means the collective reference to the (i)
Senior Unsecured $200MM Notes, (ii) the Senior Unsecured $250MM Notes, (iii) the
Senior Unsecured $375MM Notes, (iv) the Senior Unsecured $150MM Notes and (v)
and any other instruments and agreements entered into by the Borrower or its
Subsidiaries in connection therewith, in each case, as amended, restated,
supplemented or otherwise modified from time to time as permitted by the terms
and conditions of this Agreement.
"Series A Preferred Stock" means the 8% Series A Cumulative Preferred
Stock of the Borrower described in the Borrower's Amended and Restated Charter.
"Series B Preferred Stock" means the Series B Cumulative Convertible
Preferred Stock of the Borrower described in the Borrower's Amended and Restated
Charter.
"Solvent" means, as to the Borrower and its Restricted Subsidiaries on
a particular date, that any such Person (a) 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, (b) has assets
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), and (c) does not believe that it will incur debts or liabilities
beyond its ability to pay such debts or liabilities as they mature.
"Stated Maturity" means, with respect to any installment of interest
or principal on any Indebtedness, the date on which such payment of interest or
principal was scheduled to be paid in the original documentation governing such
Indebtedness, and shall not include any contingent obligations to repay, redeem
or repurchase any such interest or principal prior to the date originally
scheduled for the payment thereof.
"Subordinated Indebtedness" means the collective reference to any
Indebtedness of the Borrower or any Restricted Subsidiary subordinated in right
and time of payment to the Obligations and containing such other terms and
conditions, in each case as are satisfactory to the Required Lenders.
26
"Subsidiary" means as to any Person, any corporation, partnership,
limited liability company or other entity of which more than fifty percent (50%)
of the outstanding Capital Stock having ordinary voting power to elect a
majority of the board of directors or other managers of such corporation,
partnership, limited liability company or other entity is at the time owned by,
or the management of which is otherwise controlled by, such Person (irrespective
of whether, at the time, Capital Stock of any other class or classes of such
corporation, partnership, limited liability company or other entity shall have
or might have voting power by reason of the happening of any contingency).
Unless otherwise qualified references to "Subsidiary" or "Subsidiaries" herein
shall refer to those of the Borrower.
"Subsidiary Guarantors" means each direct or indirect Domestic
Subsidiary that is a Restricted Subsidiary in existence on the Closing Date or
that becomes a party to the Subsidiary Guaranty Agreement pursuant to Section
8.11.
"Subsidiary Guaranty Agreement" means the unconditional guaranty
agreement of even date executed by the Subsidiary Guarantors in favor of the
Administrative Agent for the ratable benefit of itself and the Lenders,
substantially in the form of EXHIBIT H, as amended, restated, supplemented or
otherwise modified from time to time.
"Swingline Commitment" means the lesser of (a) Ten Million Dollars
($10,000,000) and (b) the Revolving Credit Commitment.
"Swingline Facility" means the swingline facility established pursuant
to Section 2.2.
"Swingline Lender" means Wachovia in its capacity as swingline lender
hereunder.
"Swingline Loan" means any swingline loan made by the Swingline Lender
to the Borrower pursuant to Section 2.2, and all such swingline loans
collectively as the context requires.
"Swingline Note" means a promissory note made by the Borrower in favor
of the Swingline Lender evidencing the Swingline Loans made by the Swingline
Lender, substantially in the form of EXHIBIT A-2, and any amendments,
supplements and modifications thereto, any substitutes therefor, and any
replacements, restatements, renewals or extension thereof, in whole or in part.
"Swingline Termination Date" means the first to occur of (a) the
resignation of Wachovia as Administrative Agent in accordance with Section 12.6
and (b) the Revolving Credit Termination Date.
"Synthetic Lease" 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.
"Taxes" means all present or future taxes, levies, imposts, duties,
deductions, withholdings, assessments, fees or other charges imposed by any
Governmental Authority with
27
respect to this Agreement, any of the other Loan Documents or the transactions
that are the subject thereof, including any interest, additions to tax or
penalties applicable thereto.
"Termination Event" means except for any such event or condition that
could not reasonably be expected to have a Material Adverse Effect: (a) a
"Reportable Event" described in Section 4043 of ERISA for which the notice
requirement has not been waived by the PBGC, or (b) the withdrawal of the
Borrower or any ERISA Affiliate from a Pension Plan during a plan year in which
it was a "substantial employer" as defined in Section 4001(a)(2) of ERISA, or
(c) the termination of a Pension Plan, the filing of a notice of intent to
terminate a Pension Plan or the treatment of a Pension Plan amendment as a
termination, under Section 4041 of ERISA, if the plan assets are not sufficient
to pay all plan liabilities, or (d) the institution of proceedings to terminate,
or the appointment of a trustee with respect to, any Pension Plan by the PBGC,
or (e) any other event or condition which would constitute grounds under Section
4042(a) of ERISA for the termination of, or the appointment of a trustee to
administer, any Pension Plan, or (f) the imposition of a Lien pursuant to
Section 412 of the Code or Section 302 of ERISA, or (g) the partial or complete
withdrawal of the Borrower of any ERISA Affiliate from a Multiemployer Plan if
withdrawal liability is asserted by such plan, or (h) any event or condition
which results in the reorganization or insolvency of a Multiemployer Plan under
Sections 4241 or 4245 of ERISA, or (i) any event or condition which results in
the termination of a Multiemployer Plan under Section 4041A of ERISA or the
institution by PBGC of proceedings to terminate a Multiemployer Plan under
Section 4042 of ERISA.
"Termination Value" means, in respect of any one or more Hedging
Agreements, after taking into account the effect of any legally enforceable
netting agreement relating to such Hedging Agreements, (a) for any date on or
after the date such Hedging Agreements have been closed out and termination
value(s) determined in accordance therewith, such termination value(s), and (b)
for any date prior to the date referenced in clause (a), the amount(s)
determined as the xxxx-to-market value(s) for such Hedging Agreements, as
determined based upon one or more mid-market or other readily available
quotations provided by any recognized dealer in such Hedging Agreements (which
may include a Lender or any Affiliate of a Lender).
"UCC" means the Uniform Commercial Code as in effect in the State of
New York, as amended or modified from time to time.
"Uniform Customs" means the Uniform Customs and Practice for
Documentary Credits (1993 Revision), effective January, 1994 International
Chamber of Commerce Publication No. 500.
"United States" means the United States of America.
"Unoccupied Prison Facility" means any Prison Facility owned by the
Borrower or its Restricted Subsidiaries that, for the twelve-month period ending
on the date of measurement, has had an average occupancy level of less than
fifteen percent (15%).
"Unrestricted Subsidiary" means any Subsidiary of the Borrower that is
designated by the board of directors of the Borrower as an Unrestricted
Subsidiary pursuant to Section 8.12, but only to the extent that such
Subsidiary:
28
(a) has no Indebtedness that is recourse (directly or indirectly) to the
Borrower or any of its Restricted Subsidiaries;
(b) is not party to any agreement, contract, arrangement or understanding
with the Borrower or any of its Restricted Subsidiaries unless the terms of any
such agreement, contract, arrangement or understanding are no less favorable to
the Borrower or such Restricted Subsidiary than those that might be obtained at
the time from Persons who are not Affiliates of the Borrower;
(c) is a Person with respect to which neither the Borrower nor any of its
Restricted Subsidiaries has any direct or indirect obligation (i) to subscribe
for additional Capital Stock or (ii) to maintain or preserve such Person's
financial condition or to cause such Person to achieve any specified levels of
operating results; and
(d) has not guaranteed or otherwise directly or indirectly provided credit
support for any Indebtedness of the Borrower or any of its Restricted
Subsidiaries.
"Wachovia" means Wachovia Bank, National Association, a national
banking association, and its successors.
SECTION 1.2 Other Definitions and Provisions.
With reference to this Agreement and each other Loan Document, unless
otherwise specified herein or in such other Loan Document: (a) the definitions
of terms herein shall apply equally to the singular and plural forms of the
terms defined, (b) whenever the context may require, any pronoun shall include
the corresponding masculine, feminine and neuter forms, (c) the words "include",
"includes" and "including" shall be deemed to be followed by the phrase "without
limitation", (d) the word "will" shall be construed to have the same meaning and
effect as the word "shall", (e) 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), (f) any reference
herein to any Person shall be construed to include such Person's successors and
assigns, (g) the words "herein", "hereof" and "hereunder", and words of similar
import, shall be construed to refer to this Agreement in its entirety and not to
any particular provision hereof, (h) 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, (i) the words
"asset" and "property" 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, (j) the term
"documents" includes any and all instruments, documents, agreements,
certificates, notices, reports, financial statements and other writings, however
evidenced, whether in physical or electronic form, (k) in the computation of
periods of time from a specified date to a later specified date, the word "from"
means "from and including;" the words "to" and "until" each mean "to but
excluding;" and the word "through" means "to and including", and (l) Section
headings herein and in the other Loan Documents are included for convenience of
reference only and shall not affect the interpretation of this Agreement or any
other Loan Document.
29
SECTION 1.3 Accounting Terms. All accounting terms not specifically or
completely defined herein shall be construed in conformity with, and all
financial data (including financial ratios and other financial calculations)
required to be submitted pursuant to this Agreement shall be prepared in
conformity with, GAAP applied on a consistent basis, as in effect from time to
time, applied in a manner consistent with that used in preparing the audited
financial statements required by Section 7.1(b), except as otherwise
specifically prescribed herein.
SECTION 1.4 UCC Terms. Terms defined in the UCC in effect on the
Closing Date and not otherwise defined herein shall, unless the context
otherwise indicates, have the meanings provided by those definitions. Subject to
the foregoing, the term "UCC" refers, as of any date of determination, to the
UCC then in effect.
SECTION 1.5 Rounding. Any financial ratios required to be maintained
by the Borrower pursuant to this Agreement shall be calculated by dividing the
appropriate component by the other component, carrying the result to one place
more than the number of places by which such ratio is expressed herein and
rounding the result up or down to the nearest number (with a rounding-up if
there is no nearest number).
SECTION 1.6 References to Agreement and Laws. Unless otherwise
expressly provided herein, (a) references to formation documents, governing
documents, agreements (including the Loan Documents) and other contractual
instruments shall be deemed to include all subsequent amendments, restatements,
extensions, supplements and other modifications thereto, but only to the extent
that such amendments, restatements, extensions, supplements and other
modifications are not prohibited by any Loan Document; and (b) references to any
Applicable Law shall include all statutory and regulatory provisions
consolidating, amending, replacing, supplementing or interpreting such
Applicable Law.
SECTION 1.7 Times of Day. Unless otherwise specified, all references
herein to times of day shall be references to Eastern time (daylight or
standard, as applicable).
SECTION 1.8 Letter of Credit Amounts. Unless otherwise specified, all
references herein to the amount of a Letter of Credit at any time shall be
deemed to mean the maximum face amount of such Letter of Credit after giving
effect to all increases thereof contemplated by such Letter of Credit or the
Letter of Credit Application therefor, whether or not such maximum face amount
is in effect at such time.
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ARTICLE II
REVOLVING CREDIT FACILITY
SECTION 2.1 Revolving Credit Loans. Subject to the terms and
conditions of this Agreement, and in reliance upon the representations and
warranties set forth herein, each Revolving Credit Lender severally agrees to
make Revolving Credit Loans to the Borrower from time to time from the Closing
Date through, but not including, the Revolving Credit Maturity Date as requested
by the Borrower in accordance with the terms of Section 2.3; provided, that (a)
the aggregate principal amount of all outstanding Revolving Credit Loans (after
giving effect to any amount requested) shall not exceed the Revolving Credit
Commitment less the sum of all outstanding Swingline Loans and L/C Obligations
and (b) the principal amount of outstanding Revolving Credit Loans from any
Revolving Credit Lender to the Borrower shall not at any time exceed such
Revolving Credit Lender's Revolving Credit Commitment less such Revolving Credit
Lender's Revolving Credit Commitment Percentage of outstanding L/C Obligations
and outstanding Swingline Loans. Each Revolving Credit Loan by a Revolving
Credit Lender shall be in a principal amount equal to such Revolving Credit
Lender's Revolving Credit Commitment Percentage of the aggregate principal
amount of Revolving Credit Loans requested on such occasion. Subject to the
terms and conditions hereof, the Borrower may borrow, repay and reborrow
Revolving Credit Loans hereunder until the Revolving Credit Maturity Date.
SECTION 2.2 Swingline Loans.
(a) Availability. Subject to the terms and conditions of this Agreement,
the Swingline Lender agrees to make Swingline Loans to the Borrower from time to
time from the Closing Date through, but not including, the Swingline Termination
Date; provided, that the aggregate principal amount of all outstanding Swingline
Loans (after giving effect to any amount requested), shall not exceed the lesser
of (i) the Revolving Credit Commitment less the sum of all outstanding Revolving
Credit Loans and the L/C Obligations and (ii) the Swingline Commitment.
(b) Refunding.
(i) Swingline Loans shall be refunded by the Revolving Credit Lenders
on demand by the Swingline Lender. Such refundings shall be made by the
Revolving Credit Lenders in accordance with their respective Revolving Credit
Commitment Percentages and shall thereafter be reflected as Revolving Credit
Loans of the Revolving Credit Lenders on the books and records of the
Administrative Agent. Each Revolving Credit Lender shall fund its respective
Revolving Credit Commitment Percentage of Revolving Credit Loans as required to
repay Swingline Loans outstanding to the Swingline Lender upon demand by the
Swingline Lender but in no event later than 2:00 p.m. on the next succeeding
Business Day after such demand is made. No Revolving Credit Lender's obligation
to fund its respective Revolving Credit Commitment Percentage of a Swingline
Loan shall be affected by any other Revolving Credit Lender's failure
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to fund its Revolving Credit Commitment Percentage of a Swingline Loan, nor
shall any Revolving Credit Lender's Revolving Credit Commitment Percentage be
increased as a result of any such failure of any other Revolving Credit Lender
to fund its Revolving Credit Commitment Percentage of a Swingline Loan.
(ii) The Borrower shall pay to the Swingline Lender on demand the
amount of such Swingline Loans to the extent amounts received from the Revolving
Credit Lenders are not sufficient to repay in full the outstanding Swingline
Loans requested or required to be refunded. In addition, the Borrower hereby
authorizes the Administrative Agent to charge any account maintained by the
Borrower with the Swingline Lender (up to the amount available therein) in order
to immediately pay the Swingline Lender the amount of such Swingline Loans to
the extent amounts received from the Revolving Credit Lenders are not sufficient
to repay in full the outstanding Swingline Loans requested or required to be
refunded. If any portion of any such amount paid to the Swingline Lender shall
be recovered by or on behalf of the Borrower from the Swingline Lender in
bankruptcy or otherwise, the loss of the amount so recovered shall be ratably
shared among all the Revolving Credit Lenders in accordance with their
respective Revolving Credit Commitment Percentages (unless the amounts so
recovered by or on behalf of the Borrower pertain to a Swingline Loan extended
after the occurrence and during the continuance of an Event of Default of which
the Administrative Agent has received notice in the manner required pursuant to
Section 12.3 and which Event of Default has not been waived by the Required
Lenders or the Lenders, as applicable).
(iii) Each Revolving Credit Lender acknowledges and agrees that its
obligation to refund Swingline Loans in accordance with the terms of this
Section is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including, without limitation, non-satisfaction of the
conditions set forth in Article V. Further, each Revolving Credit Lender agrees
and acknowledges that if prior to the refunding of any outstanding Swingline
Loans pursuant to this Section, one of the events described in Section 11.1(i)
or (j) shall have occurred, each Revolving Credit Lender will, on the date the
applicable Revolving Credit Loan would have been made, purchase an undivided
participating interest in the Swingline Loan to be refunded in an amount equal
to its Revolving Credit Commitment Percentage of the aggregate amount of such
Swingline Loan. Each Revolving Credit Lender will immediately transfer to the
Swingline Lender, in immediately available funds, the amount of its
participation and upon receipt thereof the Swingline Lender will deliver to such
Revolving Credit Lender a certificate evidencing such participation dated the
date of receipt of such funds and for such amount. Whenever, at any time after
the Swingline Lender has received from any Revolving Credit Lender such
Revolving Credit Lender's participating interest in a Swingline Loan, the
Swingline Lender receives any payment on account thereof, the Swingline Lender
will distribute to such Revolving Credit Lender its participating interest in
such amount (appropriately adjusted, in the case of interest payments, to
reflect the period of time during which such Revolving Credit Lender's
participating interest was outstanding and funded).
SECTION 2.3 Procedure for Advances of Revolving Credit Loans and
Swingline Loans.
32
(a) Requests for Borrowing. The Borrower shall give the Administrative
Agent irrevocable prior written notice substantially in the form of EXHIBIT B (a
"Notice of Borrowing") not later than 12:00 noon (i) on the same Business Day as
each Base Rate Loan and each Swingline Loan and (ii) at least three (3) Business
Days before each LIBOR Rate Loan, of its intention to borrow, specifying (A) the
date of such borrowing, which shall be a Business Day, (B) the amount of such
borrowing, which shall be, (x) with respect to Base Rate Loans (other than
Swingline Loans) in an aggregate principal amount of $2,000,000 or a whole
multiple of $1,000,000 in excess thereof, (y) with respect to LIBOR Rate Loans
in an aggregate principal amount of $3,000,000 or a whole multiple of $1,000,000
in excess thereof and (z) with respect to Swingline Loans in whole multiples of
$100,000, (C) whether such Loans are to be Revolving Credit Loans or Swingline
Loans, (D) in the case of Revolving Credit Loans whether the Loans are to be
LIBOR Rate Loans or Base Rate Loans, and (E) in the case of LIBOR Rate Loans,
the duration of the Interest Period applicable thereto. A Notice of Borrowing
received after 12:00 noon shall be deemed received on the next Business Day. The
Administrative Agent shall promptly notify the Lenders of each Notice of
Borrowing.
(b) Disbursement of Revolving Credit and Swingline Loans. Not later than
2:00 p.m. on the proposed borrowing date, (i) each Lender will make available to
the Administrative Agent, for the account of the Borrower, at the office of the
Administrative Agent, in funds immediately available to the Administrative
Agent, such Lender's Revolving Credit Commitment Percentage of the Revolving
Credit Loans to be made on such borrowing date and (ii) the Swingline Lender
will make available to the Administrative Agent, for the account of the
Borrower, at the office of the Administrative Agent, in funds immediately
available to the Administrative Agent, the Swingline Loans to be made on such
borrowing date. The Borrower hereby irrevocably authorizes the Administrative
Agent to disburse the proceeds of each borrowing requested pursuant to this
Section in immediately available funds by crediting or wiring such proceeds to
the deposit account of the Borrower identified in the most recent notice
substantially in the form of EXHIBIT C (a "Notice of Account Designation")
delivered by the Borrower to the Administrative Agent, or as may be otherwise
agreed upon by the Borrower and the Administrative Agent from time to time.
Subject to Section 4.7 hereof, the Administrative Agent shall not be obligated
to disburse the portion of the proceeds of any Revolving Credit Loan requested
pursuant to this Section to the extent that any Lender has not made available to
the Administrative Agent its Revolving Credit Commitment Percentage of such
Loan. Revolving Credit Loans to be made for the purpose of refunding Swingline
Loans shall be made by the Revolving Credit Lenders as provided in Section
2.2(b).
SECTION 2.4 Repayment and Prepayment of Revolving Credit and Swingline
Loans.
(a) Repayment on Termination Date. The Borrower hereby agrees to repay the
outstanding principal amount of (i) all Revolving Credit Loans in full on the
Revolving Credit Maturity Date, and (ii) all Swingline Loans in accordance with
Section 2.2(b), together, in each case, with all accrued but unpaid interest
thereon.
33
(b) Mandatory Prepayments. If at any time the outstanding principal amount
of all Revolving Credit Loans plus the sum of all outstanding Swingline Loans
and L/C Obligations exceeds the Revolving Credit Commitment, the Borrower agrees
to repay immediately upon notice from the Administrative Agent, by payment to
the Administrative Agent for the account of the Lenders, Extensions of Credit in
an amount equal to such excess with each such repayment applied first to the
principal amount of outstanding Swingline Loans, second to the principal amount
of outstanding Revolving Credit Loans and third, with respect to any Letters of
Credit then outstanding, a payment of cash collateral into a cash collateral
account opened by the Administrative Agent, for the benefit of the Lenders, in
an amount equal to the aggregate then undrawn and unexpired amount of such
Letters of Credit (such cash collateral to be applied in accordance with Section
11.2(b)). The application of any prepayment of Revolving Credit Loans pursuant
to this Section 2.4(b) shall be made, first, to Base Rate Loans and, second, to
LIBOR Rate Loans.
(c) Optional Prepayments. The Borrower may at any time and from time to
time prepay Revolving Credit Loans and Swingline Loans, in whole or in part,
with irrevocable prior written notice to the Administrative Agent substantially
in the form of EXHIBIT D (a "Notice of Prepayment") given not later than 12:00
noon (i) on the same Business Day as each Base Rate Loan and each Swingline Loan
and (ii) at least three (3) Business Days before each LIBOR Rate Loan,
specifying the date and amount of prepayment and whether the prepayment is of
LIBOR Rate Loans, Base Rate Loans, Swingline Loans or a combination thereof,
and, if of a combination thereof, the amount allocable to each. Upon receipt of
such notice, the Administrative Agent shall promptly notify each Lender. If any
such notice is given, the amount specified in such notice shall be due and
payable on the date set forth in such notice. Partial prepayments shall be in an
aggregate amount of $2,000,000 or a whole multiple of $1,000,000 in excess
thereof with respect to Base Rate Loans (other than Swingline Loans), $3,000,000
or a whole multiple of $1,000,000 in excess thereof with respect to LIBOR Rate
Loans and $100,000 or a whole multiple of $100,000 in excess thereof with
respect to Swingline Loans. A Notice of Prepayment received after 12:00 noon
shall be deemed received on the next Business Day. Each such repayment shall be
accompanied by any amount required to be paid pursuant to Section 4.9 hereof.
(d) Limitation on Prepayment of LIBOR Rate Loans. The Borrower may not
prepay any LIBOR Rate Loan on any day other than on the last day of the Interest
Period applicable thereto unless such prepayment is accompanied by any amount
required to be paid pursuant to Section 4.9 hereof.
(e) Hedging Agreements. No repayment or prepayment pursuant to this Section
shall affect any of the Borrower's obligations under any Hedging Agreement.
SECTION 2.5 Permanent Reduction of the Revolving Credit Commitment.
(a) Voluntary Reduction. The Borrower shall have the right at any time and
from time to time, upon at least five (5) Business Days' prior written notice to
the Administrative Agent, to permanently reduce, without premium or penalty, (i)
the entire Revolving Credit
34
Commitment at any time or (ii) portions of the Revolving Credit Commitment, from
time to time, in an aggregate principal amount not less than $5,000,000 or any
whole multiple of $1,000,000 in excess thereof. Any reduction of the Revolving
Credit Commitment shall be applied to the Revolving Credit Commitment of each
Revolving Credit Lender according to its Revolving Credit Commitment Percentage.
All commitment fees accrued until the effective date of any termination of the
Revolving Credit Commitment shall be paid on the effective date of such
termination.
(b) Corresponding Payment. Each permanent reduction permitted or required
pursuant to this Section shall be accompanied by a payment of principal
sufficient to reduce the aggregate Revolving Credit Loans, Swingline Loans and
L/C Obligations, as applicable, outstanding after such reduction to the
Revolving Credit Commitment as so reduced, and if the Revolving Credit
Commitment as so reduced is less than the aggregate amount of all outstanding
Letters of Credit, the Borrower shall be required to deposit cash collateral in
a cash collateral account opened by the Administrative Agent in an amount equal
to the aggregate then undrawn and unexpired amount of such Letters of Credit.
Such cash collateral shall be applied in accordance with Section 11.2(b). Any
reduction of the Revolving Credit Commitment to zero shall be accompanied by
payment of all outstanding Revolving Credit Loans and Swingline Loans (and
furnishing of cash collateral satisfactory to the Administrative Agent for all
L/C Obligations) and shall result in the termination of the Revolving Credit
Commitment and the Swingline Commitment and the Revolving Credit Facility. Such
cash collateral shall be applied in accordance with Section 11.2(b). If the
reduction of the Revolving Credit Commitment requires the repayment of any LIBOR
Rate Loan, such repayment shall be accompanied by any amount required to be paid
pursuant to Section 4.9 hereof.
SECTION 2.6 Termination of Revolving Credit Facility. The Revolving
Credit Facility shall terminate on the Revolving Credit Maturity Date.
SECTION 2.7 Increase in Revolving Credit Facility.
(a) As an alternative or in addition to Section 2.8 below, subject to the
conditions set forth below, at any time prior to the Revolving Credit Maturity
Date, the Borrower shall have the right to request, upon not less than thirty
(30) days' prior written notice (an "Incremental Revolving Credit Commitment
Notification") to the Administrative Agent, an increase in the Revolving Credit
Commitment in an aggregate principal amount as may be specified by the Borrower.
Such Incremental Revolving Credit Commitment Notification shall specify the
applicable Incremental Revolving Credit Commitment Effective Date.
(b) Increases in the Revolving Credit Commitment pursuant to this Section
2.7 shall be obtained from existing Lenders or from other banks, financial
institutions or investment funds that qualify as Eligible Assignees (each such
other bank, financial institution or investment fund, a "New Revolving Lender"
and, collectively with the existing Lenders providing a portion of the proposed
increase in the Revolving Credit Commitment pursuant to this Section 2.7, the
"Incremental Revolving Credit Lenders"); provided that no existing Lender shall
have any
35
obligation to increase its Revolving Credit Commitment pursuant to this Section
2.7 and the failure by any existing Lender to respond to a request for such
increase shall be deemed to be a refusal of such request by such existing
Lender.
(c) The following terms and conditions shall apply to each increase in the
Revolving Credit Commitment pursuant to this Section 2.7:
(i) such increase in the Revolving Credit Commitment pursuant to this
Section 2.7 (and any Revolving Credit Loans made thereunder) shall constitute
Obligations of the Borrower and shall be secured and guaranteed with the other
Extensions of Credit on a pari passu basis;
(ii) the Administrative Agent and the Lenders shall have received from
the Borrower an Officer's Compliance Certificate, in form and substance
reasonably satisfactory to the Administrative Agent, demonstrating that, as of
the applicable Incremental Revolving Credit Commitment Effective Date and after
giving effect thereto and any Extensions of Credit made or to be made in
connection therewith, the Borrower and its Restricted Subsidiaries are in pro
forma compliance with the financial covenants set forth in Article IX;
(iii) no Default or Event of Default shall have occurred and be
continuing as of the applicable Incremental Revolving Credit Commitment
Effective Date or after giving effect to such increase in the Revolving Credit
Commitment pursuant to this Section 2.7;
(iv) the representations and warranties made by each Credit Party in
this Agreement and the other Loan Documents shall be true and correct on and as
of the applicable Incremental Revolving Credit Commitment Effective Date with
the same effect as if made on and as of such date (other than those
representations and warranties that by their terms speak as of a particular
date, which representations and warranties shall be true and correct as of such
particular date);
(v) the Administrative Agent shall have received a resolution duly
adopted by the board of directors of each Credit Party authorizing such increase
in the Revolving Credit Commitment pursuant to this Section 2.7;
(vi) in no event shall the aggregate amount of all increases in the
Revolving Credit Commitment pursuant to this Section 2.7 (including the
requested increase) plus the aggregate amount of all Incremental Term Loans made
pursuant to Section 2.8, exceed $100,000,000;
(vii) the amount of such increase in the Revolving Credit Commitment
pursuant to this Section 2.7 shall not be less than a minimum principal amount
of $15,000,000, or, if less, the remaining amount permitted pursuant to clause
(vii) above;
(viii) the Borrower and each Incremental Revolving Credit Lender shall
execute and deliver a Lender Addition and Acknowledgement Agreement to the
Administrative Agent for its acceptance and recording in the Register, which
shall be acknowledged by the Administrative Agent and each Guarantor and shall
be in form and substance reasonably satisfactory to the Administrative Agent;
36
(ix) the Administrative Agent shall have received any documents or
information in connection with such increase in the Revolving Credit Commitment
pursuant to this Section 2.7 as it may request in its reasonable discretion; and
(x) the outstanding Revolving Credit Loans and Revolving Credit
Commitment Percentages of L/C Obligations will be reallocated by the
Administrative Agent on the applicable Incremental Revolving Credit Commitment
Effective Date among the Lenders in accordance with their revised Revolving
Credit Commitment Percentages (and the Lenders agree to make all payments and
adjustments necessary to effect such reallocation and the Borrower shall pay any
and all costs required pursuant to Section 4.9 in connection with such
reallocation as if such reallocation were a repayment).
(d) Notwithstanding the provisions of Section 13.2 to the contrary, the
Administrative Agent is hereby authorized to execute and deliver amendment
documentation evidencing such amendments (or any other amendments necessary to
effectuate the proposed increase in the Revolving Credit Commitment pursuant to
this Section 2.7 on the terms set forth above) on behalf of the Lenders;
provided that such amendment shall not modify this Agreement or any other Loan
Document in any manner materially adverse to any Lender without the consent of
such Lenders adversely affected thereby in accordance with Section 13.2 hereof.
(e) Upon the execution, delivery, acceptance and recording of the
applicable Lender Addition and Acknowledgment Agreement, from and after the
applicable Incremental Revolving Credit Commitment Effective Date, (i) each
Incremental Revolving Credit Lender shall have a Revolving Credit Commitment as
set forth in the Register and all the rights and obligations of a Lender with a
Revolving Credit Commitment hereunder and (ii) all Revolving Credit Loans made
on account of any increase in the Revolving Credit Commitment pursuant to this
Section 2.7 shall bear interest at the rate applicable to the Revolving Credit
Loans immediately prior to giving effect to such increase in the Revolving
Credit Commitment pursuant to this Section 2.7.
(f) The Administrative Agent shall maintain a copy of each Lender Addition
and Acknowledgment Agreement delivered to it in accordance with Section
13.10(c).
SECTION 2.8 Incremental Term Loans.
(a) As an alternative or in addition to Section 2.7 above, subject to the
conditions set forth in paragraphs (a) through (f) hereof, at any time prior to
the Revolving Credit Maturity Date, the Borrower, shall have the right to
request, upon not less than thirty (30) days' prior written notice (an
"Incremental Term Loan Notification") to the Administrative Agent, Incremental
Term Loans in an aggregate principal amount as may be specified by the Borrower.
Such Incremental Term Loan Notification shall specify the applicable Incremental
Term Loan Effective Date, and on such date, the Borrower shall deliver a Notice
of Borrowing with respect to such Incremental Term Loan. The Borrower shall not
deliver more than two (2) Incremental Term Loan Notifications during the term of
this Agreement.
(b) Each Incremental Term Loan shall be obtained from existing Lenders or
from other banks, financial institutions or investment funds that qualify as
Eligible Assignees (each
37
such other bank, financial institution or investment fund, a "New Incremental
Term Loan Lender" and, collectively with the existing Lenders providing such
Incremental Term Loan, the "Incremental Term Loan Lenders"); provided that no
existing Lender shall have any obligation to provide any portion of such
Incremental Term Loan and the failure by any existing Lender to respond to a
request for an Incremental Term Loan shall be deemed to be a refusal of such
request by such existing Lender.
(c) The following terms and conditions shall apply to each Incremental Term
Loan:
(i) such Incremental Term Loan shall constitute Obligations of the
Borrower and shall be secured and guaranteed with the other Extensions of Credit
on a pari passu basis;
(ii) the Administrative Agent and the Lenders shall have received from
the Borrower an Officer's Compliance Certificate, in form and substance
reasonably satisfactory to the Administrative Agent, demonstrating that, as of
the applicable Incremental Term Loan Effective Date and after giving effect
thereto and any Extensions of Credit made or to be made in connection therewith,
the Borrower and its Restricted Subsidiaries are in pro forma compliance with
the financial covenants set forth in Article IX;
(iii) no Default or Event of Default shall have occurred and be
continuing as of the applicable Incremental Term Loan Effective Date or after
giving effect to the making of any such Incremental Term Loan;
(iv) the representations and warranties made by each Credit Party in
this Agreement and the other Loan Documents shall be true and correct on and as
of the applicable Incremental Term Loan Effective Date with the same effect as
if made on and as of such date (other than those representations and warranties
that by their terms speak as of a particular date, which representations and
warranties shall be true and correct as of such particular date);
(v) the Administrative Agent shall have received a resolution duly
adopted by the board of directors of each Credit Party authorizing such
Incremental Term Loan;
(vi) each Incremental Term Loan will mature and amortize in a manner
reasonably acceptable to the Administrative Agent and the Incremental Term Loan
Lenders making such Incremental Term Loan, but will not in any event have a
maturity date earlier than the Revolving Credit Maturity Date;
(vii) in no event shall the aggregate principal amount of all
Incremental Term Loans made pursuant to this Section 2.8 (including the
requested Incremental Term Loan) plus the aggregate amount of all increases in
the Revolving Credit Commitment pursuant to Section 2.7, exceed $100,000,000;
(viii) the amount of such Incremental Term Loan obtained hereunder
shall not be less than a minimum principal amount of $15,000,000, or, if less,
the remaining amount permitted pursuant to clause (vi) above;
(ix) the Borrower and each Incremental Term Loan Lender shall execute
and deliver an Incremental Term Loan Agreement to the Administrative Agent, for
its acceptance
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and recording in the Register, which shall be acknowledged by the Administrative
Agent and each Guarantor and shall be in form and substance reasonably
satisfactory to the Administrative Agent; and
(x) the Administrative Agent shall have received any documents or
information in connection with such Incremental Term Loan as it may request in
its reasonable discretion.
(d) Notwithstanding the provisions of Section 13.2 to the contrary, the
Administrative Agent is hereby authorized to execute and deliver amendment
documentation evidencing such amendments (or any other amendments necessary to
effectuate the Incremental Term Loan on the terms set forth above) on behalf of
the Lenders; provided that such amendment shall not modify this Agreement or any
other Loan Document in any manner materially adverse to any Lender without the
consent of such Lenders adversely affected thereby in accordance with Section
13.2 hereof.
(e) Upon the execution, delivery, acceptance and recording of the
applicable Incremental Term Loan Agreement, from and after the applicable
Incremental Term Loan Effective Date, each Incremental Term Loan Lender shall
have an Incremental Term Loan Commitment as set forth in the Register and all
the rights and obligations of a Lender with such an Incremental Term Loan
Commitment hereunder. The applicable Incremental Term Loan Lenders shall make
the Incremental Term Loan to the Borrower on the applicable Incremental Term
Loan Effective Date in an amount equal to the Incremental Term Loan Commitment
of each Incremental Term Loan Lender with respect to such Incremental Term Loan
as agreed upon pursuant to subsection (b) above.
(f) The Administrative Agent shall maintain a copy of each Incremental Term
Loan Agreement delivered to it in accordance with Section 13.10(c).
ARTICLE III
LETTER OF CREDIT FACILITY
SECTION 3.1 L/C Commitment. Subject to the terms and conditions
hereof, each Issuing Lender, in reliance on the agreements of the other Lenders
set forth in Section 3.4(a), agrees to issue standby letters of credit ("Letters
of Credit") for the account of the Borrower on any Business Day from the Closing
Date through but not including the Revolving Credit Maturity Date in such form
as may be approved from time to time by the applicable Issuing Lender; provided,
that no Issuing Lender shall have any obligation to issue any Letter of Credit
if, after giving effect to such issuance, the Administrative Agent has
determined that (a) the L/C Obligations would exceed the L/C Commitment or (b)
the aggregate principal amount of outstanding Revolving Credit Loans, plus the
aggregate principal amount of outstanding Swingline Loans, plus the aggregate
amount of L/C Obligations would exceed the Revolving Credit Commitment. Each
Letter of Credit shall (i) be denominated in Dollars in a minimum amount of
$100,000 (other than Existing Letters of Credit or as otherwise agreed to by the
applicable Issuing Lender and the Administrative Agent),
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(ii) be a standby letter of credit issued to support obligations of the Borrower
or any of its Restricted Subsidiaries, contingent or otherwise, incurred in the
ordinary course of business, (iii) expire on a date no more than twelve (12)
months after the date of issuance or last renewal of such Letter of Credit,
which date shall be no later than the fifth (5th) Business Day prior to the
Revolving Credit Maturity Date and (iv) be subject to the Uniform Customs and/or
ISP98, as set forth in the Letter of Credit Application or as determined by the
applicable Issuing Lender and, to the extent not inconsistent therewith, the
laws of the State of New York. Notwithstanding the foregoing, each Issuing
Lender agrees to issue Letters of Credit with an expiration date later than the
fifth (5th) Business Day prior to the Revolving Credit Maturity Date (but no
later than one year from the date of issuance thereof) in reliance upon the
agreement by the Borrower to cash collateralize such Letters of Credit in an
amount equal to 105% of the aggregate amount available to be drawn under such
Letters of Credit by the date that is thirty (30) days prior to the Revolving
Credit Maturity Date, and the Borrower agrees so to cash collateralize such
Letters of Credit by such date, it being understood that, except with respect to
drawings made under such Letters of Credit prior to the date of receipt of such
cash collateral by the applicable Issuing Lender, the Administrative Agent and
the Lenders (other than the applicable Issuing Lender) shall, after the date of
receipt of such cash collateral by the applicable Issuing Lender, be released
from any and all obligations to purchase participations or make Revolving Credit
Loans in respect of such Letters of Credit. As of the Closing Date, each of the
Existing Letters of Credit shall constitute, for all purposes of this Agreement
and the other Loan Documents, a Letter of Credit issued and outstanding
hereunder. No Issuing Lender shall at any time be obligated to issue any Letter
of Credit hereunder if such issuance would violate, or cause such Issuing Lender
or any L/C Participant to exceed any limits imposed by, any Applicable Law.
References herein to "issue" and derivations thereof with respect to Letters of
Credit shall also include extensions or modifications of any outstanding Letters
of Credit, unless the context otherwise requires.
SECTION 3.2 Procedure for Issuance of Letters of Credit. The Borrower
may from time to time request that an Issuing Lender issue a Letter of Credit by
delivering to such Issuing Lender and the Administrative Agent a Letter of
Credit Application therefor, completed to the satisfaction of such Issuing
Lender, and such other certificates, documents and other papers and information
as such Issuing Lender may request. Upon receipt of any Letter of Credit
Application, the applicable Issuing Lender shall process such Letter of Credit
Application and the certificates, documents and other papers and information
delivered to it in connection therewith in accordance with its customary
procedures and shall, subject to Section 3.1 and Article V, promptly issue the
Letter of Credit requested thereby (but in no event shall such Issuing Lender be
required to issue any Letter of Credit earlier than three (3) Business Days
after its receipt of the Letter of Credit Application therefor and all such
other certificates, documents and other papers and information relating thereto)
by issuing the original of such Letter of Credit to the beneficiary thereof or
as otherwise may be agreed by such Issuing Lender and the Borrower. The
applicable Issuing Lender shall promptly furnish to the Borrower and the
Administrative Agent a copy of such Letter of Credit. Upon receipt of such
Letter of Credit, the Administrative Agent shall promptly notify each Lender of
the issuance and upon request by any Lender, furnish to such Lender a copy of
such Letter of Credit and the amount of such Lender's participation therein,
provided that the Administrative Agent shall be obligated to deliver the
foregoing with respect to a Letter of Credit issued by an
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Additional Issuing Lenders only after receipt by the Administrative Agent of all
notices required to be delivered to the Administrative Agent with respect
thereto.
SECTION 3.3 Commissions and Other Charges.
(a) Letter of Credit Commissions. The Borrower shall pay to the
Administrative Agent, for the account of the applicable Issuing Lender and the
L/C Participants, a letter of credit commission with respect to each Letter of
Credit in an amount per annum equal to the face amount of such Letter of Credit
multiplied by the Applicable Margin with respect to Revolving Credit Loans that
are LIBOR Rate Loans (determined on a per annum basis). Such commission shall be
payable quarterly in arrears on the last Business Day of each calendar quarter,
on the Revolving Credit Maturity Date and thereafter on demand of the
Administrative Agent. The Administrative Agent shall, promptly following its
receipt thereof, distribute to the applicable Issuing Lender and the L/C
Participants all commissions received pursuant to this Section in accordance
with their respective Revolving Credit Commitment Percentages.
(b) Issuance Fee. In addition to the foregoing commission, for Letters of
Credit issued by Wachovia, the Borrower shall pay to the Administrative Agent,
for the account of the Issuing Lender, an issuance fee with respect to each
Letter of Credit in an amount equal to the face amount of such Letter of Credit
multiplied by one eighth of one percent (0.125%) per annum. Such issuance fee
shall be payable quarterly in arrears on the last Business Day of each calendar
quarter commencing with the first such date to occur after the issuance of such
Letter of Credit, on the Revolving Credit Maturity Date and thereafter on demand
of the Administrative Agent. For Letters of Credit issued by Additional Issuing
Lenders, the Borrower shall pay to the applicable Additional Issuing Lender such
issuance fees as shall be agreed to by the Borrower and such Additional Issuing
Lender.
(c) Other Costs. In addition to the foregoing fees and commissions, the
Borrower shall pay or reimburse the applicable Issuing Lender for such normal
and customary costs and expenses as are incurred or charged by such Issuing
Lender in issuing, effecting payment under, amending or otherwise administering
any Letter of Credit.
SECTION 3.4 L/C Participations.
(a) The applicable Issuing Lender irrevocably agrees to grant and hereby
grants to each L/C Participant, and, to induce the applicable Issuing Lender to
issue Letters of Credit hereunder, each L/C Participant irrevocably agrees to
accept and purchase and hereby accepts and purchases from such Issuing Lender,
on the terms and conditions hereinafter stated, for such L/C Participant's own
account and risk, an undivided interest equal to such L/C Participant's
Revolving Credit Commitment Percentage in such Issuing Lender's obligations and
rights under and in respect of each Letter of Credit issued hereunder and the
amount of each draft paid by such Issuing Lender thereunder. Each L/C
Participant unconditionally and irrevocably agrees with the applicable Issuing
Lender that, if a draft is paid under any Letter of Credit for which such
Issuing Lender is not reimbursed in full by the Borrower through a Revolving
Credit Loan
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or otherwise in accordance with the terms of this Agreement, such L/C
Participant shall pay to such Issuing Lender upon demand at such Issuing
Lender's address for notices specified herein an amount equal to such L/C
Participant's Revolving Credit Commitment Percentage of the amount of such
draft, or any part thereof, which is not so reimbursed.
(b) Upon becoming aware of any amount required to be paid by any L/C
Participant to the applicable Issuing Lender pursuant to Section 3.4(a) in
respect of any unreimbursed portion of any payment made by such Issuing Lender
under any Letter of Credit, such Issuing Lender shall notify the Administrative
Agent and each L/C Participant of the amount and due date of such required
payment and such L/C Participant shall pay to such Issuing Lender the amount
specified on the applicable due date. If any such amount is paid to the
applicable Issuing Lender after the date such payment is due, such L/C
Participant shall pay to such Issuing Lender on demand, in addition to such
amount, the product of (i) such amount, times (ii) the daily average Federal
Funds Rate as determined by the Administrative Agent during the period from and
including the date such payment is due to the date on which such payment is
immediately available to such Issuing Lender, times (iii) a fraction the
numerator of which is the number of days that elapse during such period and the
denominator of which is 360. A certificate of the applicable Issuing Lender with
respect to any amounts owing under this Section shall be conclusive in the
absence of manifest error. With respect to payment to the applicable Issuing
Lender of the unreimbursed amounts described in this Section, if the L/C
Participants receive notice that any such payment is due (A) prior to 2:00 p.m.
on any Business Day, such payment shall be due that Business Day, and (B) after
2:00 p.m. on any Business Day, such payment shall be due on the following
Business Day.
(c) Whenever, at any time after the applicable Issuing Lender has made
payment under any Letter of Credit and has received from any L/C Participant its
Revolving Credit Commitment Percentage of such payment in accordance with this
Section, such Issuing Lender receives any payment related to such Letter of
Credit (whether directly from the Borrower or otherwise), or any payment of
interest on account thereof, such Issuing Lender will distribute to such L/C
Participant its pro rata share thereof; provided, that in the event that any
such payment received by such Issuing Lender shall be required to be returned by
such Issuing Lender, such L/C Participant shall return to such Issuing Lender
the portion thereof previously distributed by the Issuing Lender to it.
SECTION 3.5 Reimbursement Obligation of the Borrower. In the event of
any drawing under any Letter of Credit, the Borrower agrees to reimburse (either
with the proceeds of a Revolving Credit Loan as provided for in this Section or
with funds from other sources), in same day funds, the applicable Issuing Lender
on each date on which such Issuing Lender notifies the Borrower of the date and
amount of a draft paid under any Letter of Credit for the amount of (a) such
draft so paid and (b) any amounts referred to in Section 3.3(c) incurred by such
Issuing Lender in connection with such payment. Unless the Borrower shall
immediately notify the Administrative Agent and the applicable Issuing Lender
that the Borrower intends to reimburse such Issuing Lender for such drawing from
other sources or funds, the Borrower shall be deemed to have timely given a
Notice of Borrowing to the Administrative Agent requesting that the Revolving
Credit Lenders make a Revolving Credit Loan bearing interest at the Base Rate on
such date in the amount of (a) such draft so paid and
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(b) any amounts referred to in Section 3.3(c) incurred by such Issuing Lender in
connection with such payment, and the Revolving Credit Lenders shall make a
Revolving Credit Loan bearing interest at the Base Rate in such amount, the
proceeds of which shall be applied to reimburse such Issuing Lender for the
amount of the related drawing and costs and expenses. Each Revolving Credit
Lender acknowledges and agrees that its obligation to fund a Revolving Credit
Loan in accordance with this Section to reimburse the applicable Issuing Lender
for any draft paid under a Letter of Credit is absolute and unconditional and
shall not be affected by any circumstance whatsoever, including, without
limitation, non-satisfaction of the conditions set forth in Section 2.3(a) or
Article V. If the Borrower has elected to pay the amount of such drawing with
funds from other sources and shall fail to reimburse the applicable Issuing
Lender as provided above, the unreimbursed amount of such drawing shall bear
interest at the rate which would be payable on any outstanding Base Rate Loans
which were then overdue from the date such amounts become payable (whether at
stated maturity, by acceleration or otherwise) until payment in full.
SECTION 3.6 Obligations Absolute. The Borrower's obligations under
this Article III (including, without limitation, the Reimbursement Obligation)
shall be absolute and unconditional under any and all circumstances and
irrespective of any set-off, counterclaim or defense to payment which the
Borrower may have or have had against the applicable Issuing Lender or any
beneficiary of a Letter of Credit or any other Person. The Borrower also agrees
that the applicable Issuing Lender and the L/C Participants shall not be
responsible for, and the Borrower's Reimbursement Obligation under Section 3.5
shall not be affected by, among other things, the validity or genuineness of
documents or of any endorsements thereon, even though such documents shall in
fact prove to be invalid, fraudulent or forged, or any dispute between or among
the Borrower and any beneficiary of any Letter of Credit or any other party to
which such Letter of Credit may be transferred or any claims whatsoever of the
Borrower against any beneficiary of such Letter of Credit or any such
transferee. The applicable Issuing Lender and the Administrative Agent shall not
be liable for any error, omission, interruption or delay in transmission,
dispatch or delivery of any message or advice, however transmitted, in
connection with any Letter of Credit, except for errors or omissions caused by
such Issuing Lender's or Administrative Agent's gross negligence or willful
misconduct, as determined by a court of competent jurisdiction by final
nonappealable judgment. The Borrower agrees that any action taken or omitted by
the applicable Issuing Lender or the Administrative Agent under or in connection
with any Letter of Credit or the related drafts or documents, if done in the
absence of gross negligence or willful misconduct shall be binding on the
Borrower and shall not result in any liability of such Issuing Lender, the
Administrative Agent or any L/C Participant to the Borrower. The responsibility
of the applicable Issuing Lender and the Administrative Agent to the Borrower in
connection with any draft presented for payment under any Letter of Credit
shall, in addition to any payment obligation expressly provided for in such
Letter of Credit, be limited to determining that the documents (including each
draft) delivered under such Letter of Credit in connection with such presentment
are in conformity with such Letter of Credit.
SECTION 3.7 Effect of Letter of Credit Application. To the extent that
any provision of any Letter of Credit Application related to any
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Letter of Credit is inconsistent with the provisions of this Article III, the
provisions of this Article III shall apply.
SECTION 3.8 Appointment and Duties of Additional Issuing Lenders. The
Borrower may appoint Additional Issuing Lenders by delivering written notice to
the Administrative Agent at least two (2) Business Days before the issuance of
any Letters of Credit by such Additional Issuing Lenders. Any Revolving Credit
Lender designated as an Additional Issuing Lender shall remain as such until the
Borrower gives written notice to the Administrative Agent that such Revolving
Credit Lender is no longer an Additional Issuing Lender; provided that no L/C
Obligations remain outstanding with respect to such Additional Issuing Lender.
Each Additional Issuing Lender shall notify the Administrative Agent at least
two (2) Business Days before (i) the issuance of any Letter of Credit by such
Additional Issuing Lender and (ii) any amendment or modification to any Letter
of Credit issued by such Additional Issuing Lender.
ARTICLE IV
GENERAL LOAN PROVISIONS
SECTION 4.1 Interest.
(a) Interest Rate Options. Subject to the provisions of this Section, at
the election of the Borrower, (i) Revolving Credit Loans shall bear interest at
(A) the Base Rate plus the Applicable Margin or (B) the LIBOR Rate plus the
Applicable Margin (provided that the LIBOR Rate shall not be available until
three (3) Business Days after the Closing Date) and (ii) any Swingline Loan
shall bear interest at the Base Rate plus the Applicable Margin. The Borrower
shall select the rate of interest and Interest Period, if any, applicable to any
Loan at the time a Notice of Borrowing is given or at the time a Notice of
Conversion/Continuation is given pursuant to Section 4.2. Any Loan or any
portion thereof as to which the Borrower has not duly specified an interest rate
as provided herein shall be deemed a Base Rate Loan.
(b) Interest Periods. In connection with each LIBOR Rate Loan, the
Borrower, by giving notice at the times described in Section 2.3 or 4.2, as
applicable, shall elect an interest period (each, an "Interest Period") to be
applicable to such Loan, which Interest Period shall be a period of one (1), two
(2), three (3) or six (6) months; provided that:
(i) the Interest Period shall commence on the date of advance of or
conversion to any LIBOR Rate Loan and, in the case of immediately successive
Interest Periods, each successive Interest Period shall commence on the date on
which the immediately preceding Interest Period expires;
(ii) if any Interest Period would otherwise expire on a day that is
not a Business Day, such Interest Period shall expire on the next succeeding
Business Day; provided, that if any Interest Period with respect to a LIBOR Rate
Loan would otherwise expire on a day
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that is not a Business Day but is a day of the month after which no further
Business Day occurs in such month, such Interest Period shall expire on the
immediately preceding Business Day;
(iii) any Interest Period with respect to a LIBOR Rate Loan that
begins on the last Business Day of a calendar month (or on a day for which there
is no numerically corresponding day in the calendar month at the end of such
Interest Period) shall end on the last Business Day of the relevant calendar
month at the end of such Interest Period;
(iv) no Interest Period shall extend beyond the Revolving Credit
Maturity Date; and
(v) there shall be no more than six (6) Interest Periods in effect at
any time.
(c) Default Rate. Subject to Section 11.3, (i) immediately upon the
occurrence and during the continuance of an Event of Default under Section
11.1(a), (b), (j) or (k), or (ii) at the election of the Required Lenders, upon
the occurrence and during the continuance of any other Event of Default, (A) the
Borrower shall no longer have the option to request LIBOR Rate Loans, Swingline
Loans or Letters of Credit, (B) all outstanding such LIBOR Rate Loans shall bear
interest at a rate per annum of two percent (2%) in excess of the rate then
applicable to LIBOR Rate Loans until the end of the applicable Interest Period
and thereafter at a rate equal to two percent (2%) in excess of the rate then
applicable to Base Rate Loans, and (C) all outstanding Base Rate Loans and other
Obligations arising hereunder or under any other Loan Document shall bear
interest at a rate per annum equal to two percent (2%) in excess of the rate
then applicable to Base Rate Loans or such other Obligations arising hereunder
or under any other Loan Document. Interest shall continue to accrue on the
Obligations after the filing by or against the Borrower of any petition seeking
any relief in bankruptcy or under any act or law pertaining to insolvency or
debtor relief, whether state, federal or foreign. Such interest shall be payable
on demand of the Administrative Agent.
(d) Interest Payment and Computation. Interest on each Base Rate Loan shall
be due and payable in arrears on the last Business Day of each calendar quarter
commencing June 30, 2006; and interest on each LIBOR Rate Loan shall be due and
payable on the last day of each Interest Period applicable thereto, and if such
Interest Period extends over three (3) months, at the end of each three (3)
month interval during such Interest Period. Interest on LIBOR Rate Loans and all
fees payable hereunder shall be computed on the basis of a 360-day year and
assessed for the actual number of days elapsed and interest on Base Rate Loans
shall be computed on the basis of a 365/366-day year and assessed for the actual
number of days elapsed.
(e) Maximum Rate. In no contingency or event whatsoever shall the aggregate
of all amounts deemed interest or loan charges under this Agreement charged or
collected pursuant to the terms of this Agreement exceed the amount collectible
at the highest rate permissible under any Applicable Law that a court of
competent jurisdiction shall, in a final determination, deem applicable hereto.
In the event that such a court determines that the Lenders have charged or
received interest or loan charges hereunder in excess of the amount collectible
at the highest permissible rate, the rate in effect hereunder shall
automatically be reduced to the maximum rate permitted by Applicable Law and the
Lenders shall at the Administrative Agent's option (i) promptly refund to the
Borrower any interest or loan charges received by the Lenders in excess
45
of the amount collectible at the maximum lawful rate or (ii) apply such excess
to the principal balance of the Obligations on a pro rata basis. It is the
intent hereof that the Borrower not pay or contract to pay, and that neither the
Administrative Agent nor any Lender receive or contract to receive, directly or
indirectly in any manner whatsoever, interest or loan charges in excess of those
that may be paid by the Borrower under Applicable Law.
SECTION 4.2 Notice and Manner of Conversion or Continuation of Loans.
Provided that no Default or Event of Default has occurred and is then
continuing, the Borrower shall have the option to (a) convert at any time
following the third Business Day after the Closing Date all or any portion of
any outstanding Base Rate Loans (other than Swingline Loans) in a principal
amount equal to $3,000,000 or any whole multiple of $1,000,000 in excess thereof
into one or more LIBOR Rate Loans and (b) upon the expiration of any Interest
Period, (i) convert all or any part of its outstanding LIBOR Rate Loans in a
principal amount equal to $2,000,000 or a whole multiple of $1,000,000 in excess
thereof into Base Rate Loans (other than Swingline Loans) or (ii) continue such
LIBOR Rate Loans as LIBOR Rate Loans. Whenever the Borrower desires to convert
or continue Loans as provided above, the Borrower shall give the Administrative
Agent irrevocable prior written notice in the form attached as EXHIBIT E (a
"Notice of Conversion/Continuation") not later than 2:00 p.m. three (3) Business
Days before the day on which a proposed conversion or continuation of such Loan
is to be effective specifying (A) the Loans to be converted or continued, and,
in the case of any LIBOR Rate Loan to be converted or continued, the last day of
the Interest Period therefor, (B) the effective date of such conversion or
continuation (which shall be a Business Day), (C) the principal amount of such
Loans to be converted or continued, and (D) the Interest Period to be applicable
to such converted or continued LIBOR Rate Loan. The Administrative Agent shall
promptly notify the Lenders of such Notice of Conversion/Continuation. In the
event the Borrower shall fail to give any required notice as described in this
Section 4.2 or if such continuation or conversion is not permitted pursuant to
the terms of this Agreement, any LIBOR Rate Loans shall be automatically
converted to Base Rate Loans on the last day of the then expiring Interest
Period.
SECTION 4.3 Fees.
(a) Commitment Fee. Commencing on the Closing Date, the Borrower shall pay
to the Administrative Agent, for the account of the Revolving Credit Lenders, a
non-refundable commitment fee at a rate per annum equal to the Applicable Margin
on the average daily unused portion of the Revolving Credit Commitment;
provided, that the amount of outstanding Swingline Loans shall not be considered
usage of the Revolving Credit Commitment for the purpose of calculating such
commitment fee. The commitment fee shall be payable in arrears on the last
Business Day of each calendar quarter during the term of this Agreement
commencing June 30, 2006 and ending on the Revolving Credit Maturity Date. Such
commitment fee shall be distributed by the Administrative Agent to the Revolving
Credit Lenders pro rata in accordance with the Lenders' respective Revolving
Credit Commitment Percentages.
(b) Administrative Agent's and Other Fees. In order to compensate the
Administrative Agent for structuring and syndicating the Lenders for their
obligations hereunder,
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the Borrower agrees to pay to the Administrative Agent, for the account of the
Administrative Agent, the Lenders and their Affiliates, any fees set forth in
the Fee Letter.
SECTION 4.4 Manner of Payment. Each payment by the Borrower on account
of the principal of or interest on the Loans or of any fee, commission or other
amounts (including the Reimbursement Obligation) payable to the Lenders under
this Agreement shall be made not later than 1:00 p.m. on the date specified for
payment under this Agreement to the Administrative Agent at the Administrative
Agent's Office for the account of the Lenders (other than as set forth below)
pro rata in accordance with their respective Revolving Credit Commitment
Percentages (except as specified below), in Dollars, in immediately available
funds, and shall be made without any set-off, counterclaim or deduction
whatsoever. Any payment received after such time but before 2:00 p.m. on such
day shall be deemed a payment on such date for the purposes of Section 11.1, but
for all other purposes shall be deemed to have been made on the next succeeding
Business Day. Any payment received after 2:00 p.m. shall be deemed to have been
made on the next succeeding Business Day for all purposes. Upon receipt by the
Administrative Agent of each such payment, the Administrative Agent shall
distribute to each Lender at its address for notices set forth herein its pro
rata share of such payment in accordance with such Lender's Revolving Credit
Commitment Percentage (except as specified below) and shall wire advice of the
amount of such credit to each Lender. Each payment to the Administrative Agent
of any Issuing Lender's fees or L/C Participants' commissions shall be made in
like manner, but for the account of the applicable Issuing Lender or the L/C
Participants, as the case may be. Each payment to the Administrative Agent of
Administrative Agent's fees or expenses shall be made for the account of the
Administrative Agent and any amount payable to any Lender under Sections 4.9,
4.10, 4.11 or 13.3 shall be paid to the Administrative Agent for the account of
the applicable Lender. Subject to Section 4.1(b)(ii) if any payment under this
Agreement shall be specified to be made upon a day which is not a Business Day,
it shall be made on the next succeeding day which is a Business Day and such
extension of time shall in such case be included in computing any interest if
payable along with such payment.
SECTION 4.5 Evidence of Indebtedness.
(a) Extensions of Credit. The Extensions of Credit made by each Lender
shall be evidenced by one or more accounts or records maintained by such Lender
and by the Administrative Agent in the ordinary course of business. The accounts
or records maintained by the Administrative Agent and each Lender shall be
presumed correct absent manifest error of the amount of the Extensions of Credit
made by the Lenders to the Borrower and the interest and payments thereon. Any
failure to so record or any error in doing so shall not, however, limit or
otherwise affect the obligation of the Borrower hereunder to pay any amount
owing with respect to the Obligations. In the event of any conflict between the
accounts and records maintained by any Lender and the accounts and records of
the Administrative Agent in respect of such matters, the accounts and records of
the Administrative Agent shall control in the absence of manifest error. Upon
the request of any Lender made through the Administrative Agent, the Borrower
shall execute and deliver to such Lender (through the Administrative Agent) a
Revolving Credit
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Note and/or Swingline Note, as applicable, which shall evidence such Lender's
Revolving Credit Loans and/or Swingline Loans, as applicable, in addition to
such accounts or records. Each Lender may attach schedules to its Notes and
endorse thereon the date, amount and maturity of its Loans and payments with
respect thereto.
(b) Participations. In addition to the accounts and records referred to in
subsection (a), each Lender and the Administrative Agent shall maintain in
accordance with its usual practice accounts or records evidencing the purchases
and sales by such Lender of participations in Letters of Credit and Swingline
Loans. In the event of any conflict between the accounts and records maintained
by the Administrative Agent and the accounts and records of any Lender in
respect of such matters, the accounts and records of the Administrative Agent
shall control in the absence of manifest error.
SECTION 4.6 Adjustments. 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 Lender's receiving payment of a proportion of the aggregate
amount of its Loans and accrued interest thereon or other such obligations
(other than pursuant to Sections 4.9, 4.10, 4.11 or 13.3 hereof) greater than
its pro rata share thereof as provided herein, then the Lender receiving such
greater proportion shall (a) notify the Administrative Agent of such fact, and
(b) 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
(a) 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
(b) the provisions of this paragraph shall not be construed to apply to (x)
any payment made by the Borrower pursuant to and in accordance with the express
terms of this Agreement or (y) 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 Swingline Loans and Letters of Credit to any assignee or
participant, other than to the Borrower or any Restricted Subsidiary thereof (as
to which the provisions of this paragraph shall apply).
Each Credit Party 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 each
Credit Party rights of setoff and counterclaim with respect to such
participation as fully as if such Lender were a direct creditor of each Credit
Party in the amount of such participation.
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SECTION 4.7 Nature of Obligations of Lenders Regarding Extensions of
Credit; Assumption by the Administrative Agent. The obligations of the Lenders
under this Agreement to make the Loans and issue or participate in Letters of
Credit are several and are not joint or joint and several. Unless the
Administrative Agent shall have received notice from a Lender prior to a
proposed borrowing date that such Lender will not make available to the
Administrative Agent such Lender's ratable portion of the amount to be borrowed
on such date (which notice shall not release such Lender of its obligations
hereunder), the Administrative Agent may assume that such Lender has made such
portion available to the Administrative Agent on the proposed borrowing date in
accordance with Section 2.3(b), and the Administrative Agent may, in reliance
upon such assumption, make available to the Borrower on such date a
corresponding amount. If such amount is made available to the Administrative
Agent on a date after such borrowing date, such Lender shall pay to the
Administrative Agent on demand an amount, until paid, equal to the product of
(a) the amount not made available by such Lender in accordance with the terms
hereof, times (b) the daily average Federal Funds Rate during such period as
determined by the Administrative Agent, times (c) a fraction the numerator of
which is the number of days that elapse from and including such borrowing date
to the date on which such amount not made available by such Lender in accordance
with the terms hereof shall have become immediately available to the
Administrative Agent and the denominator of which is 360. A certificate of the
Administrative Agent with respect to any amounts owing under this Section shall
be conclusive, absent manifest error. If such Lender's Revolving Credit
Commitment Percentage of such borrowing is not made available to the
Administrative Agent by such Lender within three (3) Business Days after such
borrowing date, the Administrative Agent shall be entitled to recover such
amount made available by the Administrative Agent with interest thereon at the
rate per annum applicable to Base Rate Loans hereunder, on demand, from the
Borrower. The failure of any Lender to make available its Revolving Credit
Commitment Percentage of any Loan requested by the Borrower shall not relieve it
or any other Lender of its obligation, if any, hereunder to make its Revolving
Credit Commitment Percentage of such Loan available on the borrowing date, but
no Lender shall be responsible for the failure of any other Lender to make its
Revolving Credit Commitment Percentage of such Loan available on the borrowing
date.
SECTION 4.8 Changed Circumstances.
(a) Circumstances Affecting LIBOR Rate Availability. If with respect to any
Interest Period the Administrative Agent or any Lender (after consultation with
the Administrative Agent) shall determine that, by reason of circumstances
affecting the foreign exchange and interbank markets generally, deposits in
eurodollars in the applicable amounts are not being quoted via the Telerate Page
3750 or offered to the Administrative Agent or such Lender for such Interest
Period, then the Administrative Agent shall forthwith give notice thereof to the
Borrower. Thereafter, until the Administrative Agent notifies the Borrower that
such circumstances no longer exist, the obligation of the Lenders to make LIBOR
Rate Loans and the right of the Borrower to convert any Loan to or continue any
Loan as a LIBOR Rate Loan shall be suspended, and the Borrower shall repay in
full (or cause to be repaid in full) the then outstanding principal amount of
each such LIBOR Rate Loan together with accrued interest thereon on the last day
of the then current Interest Period applicable to such LIBOR Rate Loan or
convert the then outstanding principal amount of each such LIBOR Rate Loan to a
Base Rate Loan as of the last day of such Interest Period.
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(b) Laws Affecting LIBOR Rate Availability. If, after the date hereof, the
introduction of, or any change in, any Applicable Law or any change in the
interpretation or administration thereof by any Governmental Authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or compliance by any of the Lenders (or any of their respective Lending
Offices) with any request or directive (whether or not having the force of law)
of any such Governmental Authority, central bank or comparable agency, shall
make it unlawful or impossible for any of the Lenders (or any of their
respective Lending Offices) to honor its obligations hereunder to make or
maintain any LIBOR Rate Loan, such Lender shall promptly give notice thereof to
the Administrative Agent and the Administrative Agent shall promptly give notice
to the Borrower and the other Lenders. Thereafter, until the Administrative
Agent notifies the Borrower that such circumstances no longer exist, (i) the
obligations of the Lenders to make LIBOR Rate Loans and the right of the
Borrower to convert any Loan or continue any Loan as a LIBOR Rate Loan shall be
suspended and thereafter the Borrower may select only Base Rate Loans hereunder,
and (ii) if any of the Lenders may not lawfully continue to maintain a LIBOR
Rate Loan to the end of the then current Interest Period applicable thereto as a
LIBOR Rate Loan, the applicable LIBOR Rate Loan shall immediately be converted
to a Base Rate Loan for the remainder of such Interest Period.
SECTION 4.9 Indemnity. The Borrower hereby indemnifies each of the
Lenders against any loss or expense attributable to each Lender's obtaining,
liquidating or employing deposits or other funds acquired to effect, fund or
maintain any Loan that arises (a) as a consequence of any failure by the
Borrower to make any payment when due of any amount due hereunder in connection
with a LIBOR Rate Loan, (b) due to any failure of the Borrower to borrow,
continue or convert on a date specified therefor in a Notice of Borrowing or
Notice of Conversion/Continuation or (c) due to any payment, prepayment or
conversion of any LIBOR Rate Loan on a date other than the last day of the
Interest Period therefor. The amount of such loss or expense shall be
determined, in the applicable Lender's sole discretion, based upon the
assumption that such Lender funded its Revolving Credit Commitment Percentage of
the LIBOR Rate Loans in the London interbank market and using any reasonable
attribution or averaging methods that such Lender deems appropriate and
practical. A certificate of such Lender setting forth the basis for determining
such amount or amounts necessary to compensate such Lender shall be forwarded to
the Borrower through the Administrative Agent and shall be presumed to be
correct save for manifest error.
SECTION 4.10 Increased Costs.
(a) Increased Costs Generally. If any Change in Law shall:
(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 advances, loans or other credit extended
or participated in by, any Lender (except any reserve requirement reflected in
the LIBOR Rate) or any Issuing Lender;
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(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 LIBOR Rate 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 covered by Section 4.11 and the
imposition of or any change in the rate of any Excluded Tax payable by such
Lender or the Issuing Lender); or
(iii) impose on any Lender or any Issuing Lender or the London
interbank market any other condition, cost or expense affecting this Agreement
or LIBOR Rate 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, converting into or maintaining any LIBOR Rate 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 written request of such
Lender or such Issuing Lender, the Borrower shall promptly pay to any 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.
(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 Lender's or such Issuing Lender's holding
company, if any, regarding capital requirements has or would have the effect of
reducing the rate of return on such Lender's or such Issuing Lender's capital or
on the capital of such Lender's or such Issuing Lender's holding company, if
any, as a consequence of this Agreement, the Revolving Credit Commitment 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 Lender's or such
Issuing Lender's holding company could have achieved but for such Change in Law
(taking into consideration such Lender's or such Issuing Lender's policies and
the policies of such Lender's or such Issuing Lender's holding company with
respect to capital adequacy), then from time to time upon written request of
such Lender or such Issuing Lender the Borrower shall promptly 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 Lender's
or such Issuing Lender's holding company for any such reduction suffered.
(c) Certificates for Reimbursement. A certificate of a Lender or any
Issuing Lender setting forth the 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 presumed correct 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 ten (10) days after receipt thereof.
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(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 Lender's or such Issuing Lender's right to demand
such compensation; provided that the Borrower shall not be required to
compensate a Lender or a Issuing Lender pursuant to this Section for any
increased costs incurred or reductions suffered more than six (6) 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 Lender's or such Issuing Lender's 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).
SECTION 4.11 Taxes.
(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 Indemnified
Taxes; provided that if the Borrower shall be required by Applicable Law to
deduct any Indemnified Taxes from such payments, then (i) 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) the Borrower shall make such deductions and (iii) the Borrower shall
timely pay the full amount deducted to the relevant Governmental Authority in
accordance with Applicable Law.
(b) Payment of Other Taxes by the Borrower. Without limiting the provisions
of paragraph (a) above, the Borrower shall timely pay any Other Taxes (other
than Excluded Taxes) to the relevant Governmental Authority in accordance with
Applicable Law.
(c) Indemnification by the Borrower. The Borrower shall indemnify the
Administrative Agent, each Lender and each Issuing Lender, within ten (10) days
after demand therefor, for the full amount of any Indemnified Taxes (including
Indemnified 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 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 presumed correct
absent manifest error.
(d) Evidence of Payments. As soon as is reasonably practicable after any
payment of Indemnified 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 (if any) reporting such payment or other evidence of such
payment reasonably satisfactory to the Administrative Agent.
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(e) Status of Lenders. Any Foreign Lender that is entitled to an exemption
from or reduction of withholding tax under the law of the jurisdiction in which
the Borrower is resident for tax purposes, or any treaty to which such
jurisdiction is a party, with respect to payments hereunder or under any other
Loan Document shall deliver to the Borrower (with a copy to the Administrative
Agent), at the time or times prescribed by Applicable Law or reasonably
requested by the Borrower or the Administrative Agent, such properly completed
and executed documentation prescribed by Applicable Law as will permit such
payments to be made without withholding or at a reduced rate of withholding. In
addition, any Lender, if requested by the Borrower or the Administrative Agent,
shall deliver such other documentation prescribed by Applicable Law or
reasonably requested by the Borrower or the Administrative Agent as will enable
the Borrower or the Administrative Agent to determine whether or not such Lender
is subject to backup or other withholding or information reporting requirements.
Without limiting the generality of the foregoing, in the event that the Borrower
is a resident for tax purposes in the United States, any Foreign Lender shall
deliver to the Borrower and the Administrative Agent (in such number of copies
as shall be requested by the recipient) on or prior to the date on which such
Foreign Lender becomes a Lender under this Agreement (and from time to time
thereafter upon the request of the Borrower or the Administrative Agent, but
only if such Foreign Lender is legally entitled to do so), whichever of the
following is applicable:
(i) duly completed copies of Internal Revenue Service Form W-8BEN
claiming eligibility for benefits of an income tax treaty to which the United
States is a party,
(ii) duly completed copies of Internal Revenue Service Form W-8ECI,
(iii) in the case of a Foreign Lender claiming the benefits of the
exemption for portfolio interest under section 881(c) of the Code, (x) a
certificate to the effect that such Foreign Lender is not (A) a "bank" within
the meaning of section 881(c)(3)(A) of the Code, (B) a "10 percent shareholder"
of the Borrower within the meaning of section 881(c)(3)(B) of the Code, or (C) a
"controlled foreign corporation" described in section 881(c)(3)(C) of the Code
and (y) duly completed copies of Internal Revenue Service Form W-8BEN, or
(iv) any other form prescribed by Applicable Law as a basis for
claiming exemption from or a reduction in United States Federal withholding tax
duly completed together with such supplementary documentation as may be
prescribed by Applicable Law to permit the Borrower to determine the withholding
or deduction required to be made.
(f) Treatment of Certain Refunds. If the Administrative Agent, a Lender or
an Issuing Lender 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, such Lender or such Issuing Lender, 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 the Borrower, upon the
request of the Administrative Agent, such Lender or such Issuing Lender, agrees
to repay the amount paid over to the Borrower (plus any penalties, interest or
other
53
charges imposed by the relevant Governmental Authority) to the Administrative
Agent, such Lender or such Issuing Lender in the event the Administrative Agent,
such Lender or such Issuing Lender is required to repay such refund to such
Governmental Authority. This paragraph shall not be construed to require the
Administrative Agent, any Lender or such Issuing Lender to make available its
tax returns (or any other information relating to its taxes which it deems
confidential) to the Borrower or any other Person.
(g) Survival. Without prejudice to the survival of any other agreement of
the Borrower hereunder, the agreements and obligations of the Borrower contained
in this Section shall survive the payment in full of the Obligations and the
termination of the Revolving Credit Commitment.
SECTION 4.12 Mitigation Obligations; Replacement of Lenders.
(a) Designation of a Different Lending Office. If any Lender requests
compensation under Section 4.10, or requires the Borrower to pay any additional
amount to any Lender or any Governmental Authority for the account of any Lender
pursuant to Section 4.11, 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 reasonable judgment of such Lender, such
designation or assignment (i) would eliminate or reduce amounts payable pursuant
to Section 4.10 or Section 4.11, as the case may be, in the future and (ii)
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.
(b) Replacement of Lenders. If any Lender requests compensation under
Section 4.10, 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
Section 4.11, or if any Lender defaults in its obligation to fund Loans
hereunder, then the Borrower may, at its sole expense and effort, upon notice to
such Lender and the Administrative Agent, require such Lender to assign and
delegate, without recourse (in accordance with and subject to the restrictions
contained in, and consents required by, Section 13.10), 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); provided that
(i) the Borrower shall have paid to the Administrative Agent the
assignment fee specified in Section 13.10,
(ii) such Lender shall have received payment of an amount equal to the
outstanding principal of its Loans and participations in Letters of Credit,
accrued interest thereon, accrued fees and all other amounts payable to it
hereunder and under the other Loan Documents (including any amounts under
Section 4.9) 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),
54
(iii) in the case of any such assignment resulting from a claim for
compensation under Section 4.10 or payments required to be made pursuant to
Section 4.11, such assignment will result in a reduction in such compensation or
payments thereafter, and
(iv) such assignment does not conflict with Applicable Law.
A Lender shall not be required to make any such assignment or 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.
SECTION 4.13 Security. The Obligations of the Borrower shall be
secured as provided in the Security Documents.
ARTICLE V
CLOSING; CONDITIONS OF CLOSING AND BORROWING
SECTION 5.1 Closing. The closing shall take place at the offices of
Xxxxxxx Xxxxxxxxx Xxxxxxx & Xxxxxxx, L.L.P. at 10:00 a.m. on February 3, 2006,
or on such other place, date and time as the parties hereto shall mutually
agree.
SECTION 5.2 Conditions to Closing and Initial Extensions of Credit.
The obligation of the Lenders to close this Agreement and to make the initial
Loans or issue or participate in the initial Letter of Credit, if any, is
subject to the satisfaction of each of the following conditions:
(a) Executed Loan Documents. This Agreement, a Revolving Credit Note in
favor of each Lender requesting a Revolving Credit Note, a Swingline Note in
favor of the Swingline Lender (if requested thereby), the Security Documents,
together with any other applicable Loan Documents, shall have been duly
authorized, executed and delivered to the Administrative Agent by the parties
thereto, shall be in full force and effect and no Default or Event of Default
shall exist hereunder or thereunder.
(b) Closing Certificates; Etc. The Administrative Agent shall have received
each of the following in form and substance reasonably satisfactory to the
Administrative Agent:
(i) Officer's Certificate of the Borrower. A certificate from a
Responsible Officer of the Borrower to the effect that all representations and
warranties of the Borrower contained in this Agreement and the other Loan
Documents are true, correct and complete; that none of the Credit Parties is in
violation of any of the covenants contained in this Agreement and the other Loan
Documents; that, after giving effect to the transactions contemplated by this
Agreement, no Default or Event of Default has occurred and is continuing; and
that each of the
55
Credit Parties, as applicable, has satisfied each of the conditions set forth in
Section 5.2 and Section 5.3 that has not been waived.
(ii) Certificate of Secretary of each Credit Party. A certificate of a
Responsible Officer of each Credit Party certifying as to the incumbency and
genuineness of the signature of each officer of such Credit Party executing Loan
Documents to which it is a party and certifying that attached thereto is a true,
correct and complete copy of (A) the articles or certificate of incorporation or
formation of such Credit Party and all amendments thereto, certified as of a
recent date by the appropriate Governmental Authority in its jurisdiction of
incorporation or formation, (B) the bylaws or other governing document of such
Credit Party as in effect on the Closing Date, (C) resolutions duly adopted by
the board of directors or other governing body of such Credit Party authorizing
the transactions contemplated hereunder and the execution, delivery and
performance of this Agreement and the other Loan Documents to which it is a
party, and (D) each certificate required to be delivered pursuant to Section
5.2(b)(iii).
(iii) Certificates of Good Standing. Certificates as of a recent date
of the good standing of each Credit Party under the laws of its jurisdiction of
organization and, to the extent requested by the Administrative Agent, each
other jurisdiction where such Credit Party is qualified to do business and, to
the extent available, a certificate of the relevant taxing authorities of such
jurisdictions certifying that such Credit Party has filed required tax returns
and owes no delinquent taxes.
(iv) Opinions of Counsel. Favorable opinions of counsel to the Credit
Parties addressed to the Administrative Agent and the Lenders with respect to
the Credit Parties, the Loan Documents and such other matters as the Lenders
shall request.
(v) Tax Forms. If applicable, copies of the United States Internal
Revenue Service forms required by Section 4.11(e).
(c) Personal Property Collateral.
(i) Filings and Recordings. The Administrative Agent shall have
received all filings and recordations that are necessary to perfect the security
interests of the Administrative Agent, on behalf of itself and the Lenders, in
the Collateral shall have been received by the Administrative Agent and the
Administrative Agent shall have received evidence and evidence reasonably
satisfactory to the Administrative Agent that upon such filings and recordations
such security interests constitute valid and perfected first priority Liens
thereon.
(ii) Pledged Collateral. The Administrative Agent shall have received
original stock certificates or other certificates evidencing the Capital Stock
pledged pursuant to the Security Documents, together with an undated stock power
for each such certificate duly executed in blank by the registered owner
thereof.
(iii) Lien Search. The Administrative Agent shall have received the
results of a Lien search (including a search as to judgments, pending litigation
and tax matters), in form and substance reasonably satisfactory thereto, made
against the Credit Parties under the Uniform Commercial Code (or applicable
judicial docket) as in effect in any state in which any of the
56
assets of such Credit Party are located, indicating among other things that its
assets are free and clear of any Lien except for Permitted Liens.
(iv) Hazard and Liability Insurance. The Administrative Agent shall
have received certificates of property hazard, business interruption and
liability insurance, evidence of payment of all insurance premiums for the
current policy year of each (naming the Administrative Agent as additional
insured on all certificates for liability insurance), and, if requested by the
Administrative Agent, copies (certified by a Responsible Officer) of insurance
policies in the form required under the Security Documents and otherwise in form
and substance reasonably satisfactory to the Administrative Agent.
(d) Consents; Defaults.
(i) Governmental and Third Party Approvals. The Credit Parties shall
have received all material governmental, shareholder and third party consents
and approvals necessary (or any other material consents as determined in the
reasonable discretion of the Administrative Agent) in connection with the
transactions contemplated by this Agreement and the other Loan Documents and the
other transactions contemplated hereby and all applicable waiting periods shall
have expired without any action being taken by any Person that could reasonably
be expected to restrain, prevent or impose any material adverse conditions on
any of the Credit Parties or such other transactions or that could seek or
threaten any of the foregoing, and no Applicable Law in the reasonable judgment
of the Administrative Agent could reasonably be expected to have such effect.
(ii) No Injunction, Etc. No action, proceeding, investigation,
regulation or legislation shall have been instituted or overtly threatened in
writing before any Governmental Authority to enjoin, restrain or prohibit, or to
obtain substantial damages in respect of, or that is related to or arises out of
this Agreement or the other Loan Documents or the consummation of the
transactions contemplated hereby or thereby.
(e) Financial Matters.
(i) Financial Statements. The Administrative Agent shall have received
(A) a pro forma Consolidated balance sheet of the Borrower and its Subsidiaries
as of the last month as to which financial statements are available, reflecting
the capital structure of the Borrower and its Subsidiaries after giving effect
to the transactions contemplated hereby, prepared and certified by the chief
financial officer of the Borrower and (B) such other financial information as
the Administrative Agent may reasonably require, each of which shall be
reasonably satisfactory in all respects to the Administrative Agent.
(ii) Financial Projections. The Administrative Agent shall have
received pro forma Consolidated financial statements for the Borrower and its
Restricted Subsidiaries, and forecasts prepared by management of the Borrower,
of balance sheets, income statements and cash flow statements on an annual basis
for each year during the term of the Credit Facility.
(iii) Financial Condition Certificate. The Borrower shall have
delivered to the Administrative Agent a certificate, in form and substance
satisfactory to the Administrative Agent, and certified as accurate by a
Responsible Officer, that (A) the Borrower and each of its
57
Restricted Subsidiaries are Solvent, (B) the Borrower's payables are current and
no material part thereof is past due, (C) attached thereto are calculations
evidencing compliance on a pro forma basis with the covenants contained in
Article IX hereof, and (D) the financial projections previously delivered to the
Administrative Agent represent the good faith estimates (utilizing reasonable
assumptions) of the financial condition and operations of the Borrower and its
Restricted Subsidiaries.
(iv) Payment at Closing; Fee Letters. The Borrower shall have paid to
the Administrative Agent and the Lenders the fees set forth or referenced in
Section 4.3 that are then due and any other accrued and unpaid fees or
commissions due hereunder (including, without limitation, legal fees and
expenses) and to any other Person such amount as may be due thereto in
connection with the transactions contemplated hereby, including all taxes, fees
and other charges in connection with the execution, delivery, recording, filing
and registration of any of the Loan Documents.
(f) Existing Credit Facility. The Existing Credit Facility shall be repaid
in full and all credit facilities, security interests and other agreements
relating thereto shall have been terminated (or provision for the termination
thereof shall have been made) in a manner satisfactory to the Administrative
Agent and the Lenders, and the Administrative Agent shall have received a
pay-off letter in form and substance satisfactory to it regarding such
repayment, termination and release.
(g) Miscellaneous.
(i) Notice of Borrowing. As to the initial Extensions of Credit, the
Administrative Agent shall have received a Notice of Borrowing from the Borrower
in accordance with Section 2.3(a), and a Notice of Account Designation
specifying the account or accounts to which the proceeds of any Loans made after
the Closing Date are to be disbursed.
(ii) Due Diligence. The Administrative Agent shall have completed, to
its reasonable satisfaction, all legal, tax, business and other due diligence
with respect to the business, assets, liabilities, operations and condition
(financial or otherwise) of the Borrower and its Subsidiaries in scope and
determination reasonably satisfactory to the Administrative Agent in its sole
discretion.
(iii) Other Documents. All opinions, certificates and other
instruments and all proceedings in connection with the transactions contemplated
by this Agreement shall be satisfactory in form and substance to the
Administrative Agent. The Administrative Agent shall have received copies of all
other documents, certificates and instruments reasonably requested thereby with
respect to the transactions contemplated by this Agreement.
SECTION 5.3 Conditions to All Extensions of Credit. The obligations of
the Lenders to make any Extensions of Credit (including the initial Extension of
Credit) and convert or continue any Loan of any Issuing Lender to issue or
extend any Letter of Credit are subject to the satisfaction of the following
conditions precedent on the relevant borrowing, continuation, conversion,
issuance or extension date:
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(a) Continuation of Representations and Warranties. The representations and
warranties of the Borrower and each other Credit Party contained in Article VI
and each other Loan Document that are subject to materiality or Material Adverse
Effect qualifications shall be true and correct in all respects and the
representations and warranties of the Borrower and each other Credit Party
contained in Article VI and each other Loan Document that are not subject to
materiality or Material Adverse Effect qualifications shall be true and correct
in all material respects, in each case, both before and after giving effect to
such proposed borrowing, continuation, conversion, issuance or extension, except
to the extent that such representations and warranties specifically refer to an
earlier date, in which case they shall be true and correct as of such earlier
date.
(b) No Existing Default. No Default or Event of Default shall have occurred
and be continuing (i) on the borrowing, continuation or conversion date with
respect to such Loan or after giving effect to the Loans to be made, continued
or converted on such date or (ii) on the issuance or extension date with respect
to such Letter of Credit or after giving effect to the issuance or extension of
such Letter of Credit on such date.
(c) Notices. The Administrative Agent shall have received a Notice of
Borrowing or Notice of Conversion/Continuation, as applicable, from the Borrower
in accordance with Section 2.3(a) and Section 4.2.
(d) Additional Documents. The Administrative Agent shall have received each
additional document, instrument, legal opinion or other item reasonably
requested by it.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF THE BORROWER
SECTION 6.1 Representations and Warranties. To induce the
Administrative Agent and Lenders to enter into this Agreement and to induce the
Lenders to make Extensions of Credit, the Borrower hereby represents and
warrants to the Administrative Agent and Lenders both before and after giving
effect to the transactions contemplated hereunder that:
(a) Organization; Power; Qualification. Each of the Borrower and its
Restricted Subsidiaries is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation or formation, has the
power and authority to own 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 except in jurisdictions where the failure to be so qualified or in
good standing could not reasonably be expected to result in a Material Adverse
Effect. The jurisdictions in which the Borrower and its Restricted Subsidiaries
are organized and qualified to do business as of the Closing Date are described
on Schedule 6.1(a).
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(b) Ownership. Each Subsidiary of the Borrower as of the Closing Date is
listed on Schedule 6.1(b). As of the Closing Date, the capitalization of the
Subsidiaries of the Borrower consists of the number of shares or other
interests, authorized, issued and outstanding, of such classes and series, with
or without par value, described on Schedule 6.1(b). As of the Closing Date, all
outstanding shares have been duly authorized and validly issued and are fully
paid and nonassessable, with no personal liability attaching to the ownership
thereof, and not subject to any preemptive or similar rights, except as
described in Schedule 6.1(b). The shareholders, members or partners, as
applicable, of each Subsidiary of the Borrower and the number of shares owned by
each as of the Closing Date are described on Schedule 6.1(b). As of the Closing
Date, there are no outstanding stock purchase warrants, subscriptions, options,
securities, instruments or other rights of any type or nature whatsoever that
are convertible into, exchangeable for or otherwise provide for or permit the
issuance of Capital Stock of the Subsidiaries of the Borrower, except as
described on Schedule 6.1(b).
(c) Authorization of Agreement, Loan Documents and Borrowing. Each of the
Borrower and its Restricted Subsidiaries 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 and each of the other Loan Documents
to which it is a party in accordance with their respective terms. This Agreement
and each of the other Loan Documents have been duly executed and delivered by
duly authorized officers or other representatives of the Borrower and each of
its Restricted Subsidiaries party thereto, and each such document constitutes
the legal, valid and binding obligation of the Borrower or the Restricted
Subsidiary party thereto, enforceable in accordance with its terms, except as
such enforceability 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 creditors' rights and the availability of
equitable remedies.
(d) Compliance of Agreement, Loan Documents and Borrowing with Laws, Etc.
The execution, delivery and performance by the Borrower and its Restricted
Subsidiaries of the Loan Documents to which each such Person is a party, in
accordance with their respective terms, the Extensions of Credit hereunder and
the transactions contemplated hereby do not and will not, by the passage of
time, the giving of notice or otherwise, (i) require any Governmental Approval
or violate any Applicable Law relating to the Borrower or any of its Restricted
Subsidiaries where the failure to obtain such Governmental Approval or such
violation of Applicable Law could reasonably be expected to have a Material
Adverse Effect, (ii) conflict with, result in a breach of or constitute a
default under the articles of incorporation, bylaws or other organizational
documents of the Borrower or any of its Restricted Subsidiaries, (iii) conflict
with, result in a breach of or constitute a default under any indenture,
agreement or other instrument to which such Person is a party or by which any of
its properties may be bound or any Governmental Approval relating to such Person
that could reasonably be expected to have a Material Adverse Effect, (iv) result
in or require the creation or imposition of any Lien upon or with respect to any
property now owned or hereafter acquired by such Person other than Liens arising
under the Loan Documents and Permitted Liens or (iv) require any consent or
authorization of, filing with, or other act in respect of, an arbitrator or
Governmental Authority and no consent of any other Person is required in
connection with the execution, delivery, performance, validity or enforceability
of this Agreement other than consents, authorizations, filings or other acts or
consents that have been obtained or made or for which the failure to obtain or
make could not
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reasonably be expected to have a Material Adverse Effect and other than consents
or filings under the UCC.
(e) Compliance with Law; Governmental Approvals. Each of the Borrower and
its Restricted Subsidiaries (i) 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 its knowledge, threatened challenge by direct or
collateral proceeding, (ii) is in compliance with each Governmental Approval
applicable to it and in compliance with all other Applicable Laws relating to it
or any of its respective properties and (iii) has timely filed all reports,
documents and other materials required to be filed by it under all Applicable
Laws with any Governmental Authority and has retained all records and documents
required to be retained by it under Applicable Law, except in each clause (i),
(ii) or (iii) above, where the failure to have, comply or file could not
reasonably be expected to have a Material Adverse Effect.
(f) Tax Returns and Payments. Each of the Borrower and its Restricted
Subsidiaries has duly filed or caused to be filed all federal, state, local and
other tax returns required by Applicable Law to be filed, and has paid, or made
adequate provision for the payment of, all federal, state, local and other
taxes, assessments and governmental charges or levies upon it and its property,
income, profits and assets that are due and payable. Such returns accurately
reflect in all material respects all material liabilities for taxes of the
Borrower and its Restricted Subsidiaries for the periods covered thereby. There
is no ongoing audit or examination or, to the knowledge of the Borrower, other
investigation by any Governmental Authority of the tax liability of the Borrower
and its Restricted Subsidiaries. No Governmental Authority has asserted any Lien
or other claim against the Borrower or any Restricted Subsidiary with respect to
unpaid taxes that has not been discharged or resolved other than Permitted
Liens. The charges, accruals and reserves on the books of the Borrower and any
of its Restricted Subsidiaries in respect of federal, state, local and other
taxes for all Fiscal Years and portions thereof since the organization of the
Borrower and any of its Restricted Subsidiaries are in the judgment of the
Borrower adequate, and the Borrower does not anticipate any additional taxes or
assessments for any of such years.
(g) Intellectual Property Matters. Each of the Borrower and its Restricted
Subsidiaries owns or possesses rights to use all material franchises, licenses,
copyrights, copyright applications, patents, patent rights or licenses, patent
applications, trademarks, trademark rights, service xxxx, service xxxx rights,
trade names, trade name rights, copyrights and other rights with respect to the
foregoing that are reasonably necessary to conduct its business. No event has
occurred that permits, or after notice or lapse of time or both would permit,
the revocation or termination of any such rights, and neither the Borrower nor
any Restricted Subsidiary thereof is liable to any Person for infringement under
Applicable Law with respect to any such rights as a result of its business
operations except as could not reasonably be expected to have a Material Adverse
Effect.
(h) Environmental Matters. Except to the extent that any of the following,
individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect:
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(i) To the knowledge of the Borrower, the properties owned, leased or
operated by the Borrower and its Subsidiaries now or in the past do not contain,
and have not previously contained, any Hazardous Materials in amounts or
concentrations that (A) constitute or constituted a violation of applicable
Environmental Laws or (B) could reasonably be expected to give rise to liability
under applicable Environmental Laws;
(ii) The Borrower, each of its Subsidiaries and such properties and
all operations conducted in connection therewith are in compliance, and have
been in compliance, with all applicable Environmental Laws, and to the knowledge
of the Borrower there is no contamination at, under or about such properties or
such operations that could interfere with the continued operation of such
properties or impair the fair saleable value thereof;
(iii) Neither the Borrower nor any Subsidiary thereof has received
from any Governmental Authority, any written notice of violation, alleged
violation, non-compliance, liability or potential liability regarding Hazardous
Materials or compliance with Environmental Laws, nor does the Borrower or any
Subsidiary thereof have knowledge or reason to believe that any such notice will
be received or is being threatened;
(iv) To the knowledge of the Borrower, Hazardous Materials have not
been transported or disposed of to or from the properties owned, leased or
operated by the Borrower and its Subsidiaries in violation of, or in a manner or
to a location that could give rise to liability under, Environmental Laws, nor
have any Hazardous Materials been generated, treated, stored or disposed of at,
on or under any of such properties in violation of, or in a manner that could
reasonably be expected to give rise to liability under, any applicable
Environmental Laws;
(v) No judicial proceedings or governmental or administrative action
is pending, or, to the knowledge of the Borrower, overtly threatened in writing,
under any Environmental Law to which the Borrower or any Subsidiary thereof is
or, to the Borrower's knowledge will be, named as a potentially responsible
party with respect to such properties or operations conducted in connection
therewith, nor are there any consent decrees or other decrees, consent orders,
administrative orders or other orders, or other administrative or judicial
requirements outstanding under any Environmental Law with respect to the
Borrower, any Subsidiary or such properties or such operations that could
reasonably be expected to have a Material Adverse Effect; and
(vi) To the knowledge of the Borrower, there has been no release of
Hazardous Materials at or from properties owned, leased or operated by the
Borrower or any Subsidiary, now or in the past, in violation of or in amounts or
in a manner that could give rise to liability under Environmental Laws and that
could reasonably be expected to have a Material Adverse Effect.
(i) ERISA.
(i) As of the Closing Date, neither the Borrower nor any ERISA
Affiliate maintains or contributes to, or has any obligation under, any Pension
Plans or Multiemployer Plans other than those identified on Schedule 6.1(i);
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(ii) The Borrower and each other Credit Party is in material
compliance with all applicable provisions of ERISA and the regulations and
published interpretations thereunder, including the prohibited transaction
provisions of Section 406 of ERISA and Section 4975 of the Code, with respect to
all Employee Benefit Plans except for any required amendments for which the
remedial amendment period as defined in Section 401(b) of the Code has not yet
expired and except where a failure to so comply could not reasonably be expected
to have a Material Adverse Effect. Each Employee Benefit Plan that is intended
to be qualified under Section 401(a) of the Code has been determined by the
Internal Revenue Service to be so qualified, and each trust related to such plan
has been determined to be exempt under Section 501(a) of the Code except for
such plans that have not yet received determination letters but for which the
remedial amendment period for submitting a determination letter has not yet
expired. No unsatisfied liability for any taxes or penalties has been incurred
by the Borrower or any other Credit Party with respect to any Employee Benefit
Plan, or by any other ERISA Affiliate with respect to any Pension Plan or
Multiemployer Plan, except for a liability that could not reasonably be expected
to have a Material Adverse Effect;
(iii) As of the Closing Date, no Pension Plan has been terminated, nor
has any accumulated funding deficiency (as defined in Section 412 of the Code)
been incurred (without regard to any waiver granted under Section 412 of the
Code), nor has any funding waiver from the Internal Revenue Service been
received or requested with respect to any Pension Plan, nor has the Borrower or
any ERISA Affiliate failed to make any contributions or to pay any amounts due
and owing as required by Section 412 of the Code, Section 302 of ERISA or the
terms of any Pension Plan prior to the due dates of such contributions under
Section 412 of the Code or Section 302 of ERISA, nor has there been any event
requiring any disclosure under Section 4041(c)(3)(C) or 4063(a) of ERISA with
respect to any Pension Plan;
(iv) Except where the failure of any of the following representations
to be correct in all material respects could not reasonably be expected to have
a Material Adverse Effect, neither the Borrower nor any ERISA Affiliate has: (A)
incurred any liability to the PBGC which remains outstanding other than the
payment of premiums and there are no premium payments which are due and unpaid,
(B) failed to make a required contribution or payment to a Multiemployer Plan,
or (C) failed to make a required installment or other required payment under
Section 412 of the Code;
(v) No Termination Event has occurred or is reasonably expected to
occur; and
(vi) Except where the failure of any of the following representations
to be correct in all material respects could not reasonably be expected to have
a Material Adverse Effect, no proceeding, claim (other than a benefits claim in
the ordinary course of business), lawsuit and/or investigation is existing or,
to the best knowledge of the Borrower after due inquiry, threatened concerning
or involving any (A) employee welfare benefit plan (as defined in Section 3(1)
of ERISA) currently maintained or contributed to by the Borrower or any other
Credit Party, (B) Pension Plan or (C) Multiemployer Plan.
(j) Margin Stock. Neither the Borrower nor any Restricted Subsidiary is
engaged principally or as one of its activities in the business of extending
credit for the purpose of
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"purchasing" or "carrying" any "margin stock" (as each such term is defined or
used, in Regulation U of the Board of Governors of the Federal Reserve System).
No part of the proceeds of any of the Loans or Letters of Credit will be used
for purchasing or carrying margin stock or for any purpose that violates the
provisions of Regulation T, U or X of such Board of Governors.
(k) Government Regulation. Neither the Borrower nor any Restricted
Subsidiary is an "investment company" or a company "controlled" by an
"investment company" (as each such term is defined or used in the Investment
Company Act of 1940, as amended) and neither the Borrower nor any Restricted
Subsidiary is, or after giving effect to any Extension of Credit will be,
subject to regulation under the Public Utility Holding Company Act of 1935 or
the Interstate Commerce Act, each as amended, or any other Applicable Law that
limits its ability to incur or consummate the transactions contemplated hereby.
(l) Material Indebtedness. Schedule 6.1(l) sets forth a complete and
accurate list of all Material Indebtedness of the Borrower and its Restricted
Subsidiaries in effect as of the Closing Date not listed on any other Schedule
hereto; other than as set forth in Schedule 6.1(l), each indenture, contract or
agreement executed in connection with such Material Indebtedness is, and after
giving effect to the consummation of the transactions contemplated by the Loan
Documents will be, in full force and effect in accordance with the terms
thereof. To the extent requested by the Administrative Agent, the Borrower and
its Restricted Subsidiaries have delivered to the Administrative Agent a true
and complete copy of each indenture, contract or agreement executed in
connection with the Material Indebtedness required to be listed on Schedule
6.1(l) or any other Schedule hereto. Neither the Borrower nor any Restricted
Subsidiary (nor, to the knowledge of the Borrower, any other party thereto) is
in breach of or in default under any indenture, contract or agreement executed
in connection with any Material Indebtedness in any material respect.
(m) Employee Relations. Each of the Borrower and its Restricted
Subsidiaries has a stable work force in place and is not, as of the Closing
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 6.1(m). 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 that could reasonably be
expected to have a Material Adverse Effect.
(n) Burdensome Provisions. Neither the Borrower nor any Restricted
Subsidiary thereof is a party to any indenture, agreement, lease or other
instrument, or subject to any corporate or partnership restriction, Governmental
Approval or Applicable Law that is so unusual or burdensome as 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 is a party to any
agreement or instrument 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
Restricted Subsidiary in each case other than existing under or by reason of the
Loan Documents or Applicable Law.
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(o) Financial Statements. The financial statements delivered by the
Borrower to the Administrative Agent pursuant to Sections 7.1(a), 7.1(b) and
7.1(d) are complete and correct and fairly present on a Consolidated basis the
assets, liabilities and financial position of the Borrower and its Subsidiaries
as at such dates, and the results of the operations and changes of financial
position for the periods then ended (other than customary year-end adjustments
for unaudited financial statements). All such financial statements, including
the related schedules and notes thereto, have been prepared in accordance with
GAAP. Such financial statements show all material indebtedness and other
material liabilities, direct or contingent, of the Borrower and its Subsidiaries
as of the date thereof, including material liabilities for taxes, material
commitments, and Indebtedness, in each case, to the extent required to be
disclosed under GAAP. All pro forma financial statements delivered by the
Borrower to the Administrative Agent were prepared in good faith on the basis of
the assumptions stated therein, which assumptions are believed to be reasonable
in light of then existing conditions.
(p) No Material Adverse Change. Since December 31, 2004, there has been no
material adverse change in the business, assets, material agreements,
operations, liabilities (actual or contingent) or condition (financial or
otherwise) of the Borrower and its Subsidiaries and no event has occurred or
condition arisen that could reasonably be expected to have a Material Adverse
Effect.
(q) Solvency. As of the Closing Date and after giving effect to each
Extension of Credit made hereunder, the Borrower and each of its Restricted
Subsidiaries will be Solvent.
(r) Titles to Properties. Each of the Borrower and its Restricted
Subsidiaries has such title to the real property owned or leased by it as is
necessary or desirable to the conduct of its business and valid and legal title
to all of its personal property and assets, including, but not limited to, those
reflected on the balance sheets of the Borrower and its Restricted Subsidiaries
described in Section 6.1(o), except those which have been disposed of by the
Borrower or its Restricted Subsidiaries subsequent to such date which
dispositions have been in the ordinary course of business or as otherwise
expressly permitted hereunder.
(s) Insurance. The properties of the Borrower and its Restricted
Subsidiaries are insured with financially sound and reputable insurance
companies not Affiliates of the Borrower, in such amounts, with such
self-insurance and deductibles and covering such risks as are customarily
maintained by companies engaged in similar businesses and owning similar
properties in locations where the Borrower or the applicable Restricted
Subsidiary operates.
(t) Liens. None of the properties and assets of the Borrower or any
Restricted Subsidiary thereof is subject to any Lien, except Permitted Liens.
Neither the Borrower nor any Restricted Subsidiary thereof has signed any
financing statement or any security agreement authorizing any secured party
thereunder to file any financing statement, except to perfect those Permitted
Liens.
(u) Litigation. Except for matters existing on the Closing Date and set
forth on Schedule 6.1(u), there are no actions, suits or proceedings pending
nor, to the knowledge of the Borrower, threatened against or in any other way
relating adversely to or affecting the Borrower or any Restricted Subsidiary
thereof or any of their respective properties in any court or before
65
any arbitrator of any kind or before or by any Governmental Authority that (i)
has or could reasonably be expected to have a Material Adverse Effect, or (ii)
materially adversely affects any transaction contemplated hereby.
(v) Absence of Defaults. No event has occurred or is continuing that
constitutes a Default or an Event of Default, or that constitutes, or that with
the passage of time or giving of notice or both would constitute, a default or
event of default by the Borrower or any Restricted Subsidiary thereof under any
Material Indebtedness or any material judgment, decree or order to which the
Borrower or its Restricted Subsidiaries is a party or by that the Borrower or
its Restricted Subsidiaries or any of their respective properties may be bound
or which would require the Borrower or its Restricted Subsidiaries to make any
payment thereunder prior to the scheduled maturity date therefor.
(w) Senior Indebtedness Status. The Obligations of the Borrower and each of
its Restricted Subsidiaries under this Agreement and each of the other Loan
Documents ranks and shall continue to rank at least senior in priority of
payment to all Subordinated Indebtedness.
(x) OFAC. None of the Borrower, any Subsidiary of the Borrower or any
Affiliate of the Borrower or any Guarantor: (i) is a Sanctioned Person, (ii) has
more than 10% of its assets in Sanctioned Entities, or (iii) derives more than
10% of its operating income from investments in, or transactions with Sanctioned
Persons or Sanctioned Entities. The proceeds of any Loan will not be used and
have not been used to fund any operations in, finance any investments or
activities in, or make any payments to, a Sanctioned Person or a Sanctioned
Entity.
(y) Disclosure. No financial statement, material report, material
certificate or other material information furnished (whether in writing or
orally), taken together as a whole, by or on behalf of any of the Borrower or
any of its Subsidiaries to the Administrative Agent or any Lender in connection
with the transactions contemplated hereby and the negotiation of this Agreement
or delivered hereunder (as modified or supplemented by other information so
furnished) contains any material misstatement of any material 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, pro forma financial
information, estimated financial information and other projected or estimated
information, the Borrower represents only that such information was prepared in
good faith based upon assumptions believed to be reasonable at the time.
SECTION 6.2 Survival of Representations and Warranties, Etc. All
representations and warranties set forth in this Article VI and all
representations and warranties contained in any certificate, or any of the Loan
Documents (including, but not limited to, any such representation or warranty
made in or in connection with any amendment thereto) shall constitute
representations and warranties made under this Agreement. All representations
and warranties made under this Agreement shall be made or deemed to be made at
and as of the Closing Date (except those that are expressly made as of a
specific date), shall survive the Closing Date and shall not be waived by the
execution and delivery of this Agreement, any investigation made by or on behalf
of the Lenders or any borrowing hereunder.
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ARTICLE VII
FINANCIAL INFORMATION AND NOTICES
Until all the Obligations have been paid and satisfied in full and the
Revolving Credit Commitment has been terminated, unless consent has been
obtained in the manner set forth in Section 13.2, the Borrower will furnish or
cause to be furnished to the Administrative Agent at the Administrative Agent's
Office at the address set forth in Section 13.1 or such other office as may be
designated by the Administrative Agent from time to time:
SECTION 7.1 Financial Statements and Projections.
(a) Quarterly Financial Statements. As soon as practicable and in any event
within forty-five (45) days (or, if earlier, on the date of any required public
filing thereof) after the end of each fiscal quarter of each Fiscal Year, an
unaudited Consolidated balance sheet of the Borrower and its Subsidiaries as of
the close of such fiscal quarter and unaudited Consolidated statements of
income, retained earnings and cash flows and a report containing management's
discussion and analysis of such financial statements for the fiscal quarter then
ended and that portion of the Fiscal Year then ended, including the notes
thereto, all in reasonable detail setting forth in comparative form the
corresponding figures as of the end of and for the corresponding period in the
preceding Fiscal Year and prepared by the Borrower in accordance with GAAP and,
if applicable, containing disclosure of the effect on the financial position or
results of operations of any change in the application of accounting principles
and practices during the period, and certified by the chief financial officer of
the Borrower to present fairly in all material respects the financial condition
of the Borrower and its Subsidiaries on a Consolidated basis as of their
respective dates and the results of operations of the Borrower and its
Subsidiaries for the respective periods then ended, subject to normal year end
adjustments. Delivery by the Borrower to the Administrative Agent of the
Borrower's quarterly report to the SEC on Form 10-Q with respect to any fiscal
quarter, or the availability of such report on XXXXX Online (to the extent such
report complies with the requirements of this clause (a)), within the period
specified above shall be deemed to be compliance by the Borrower with this
Section 7.1(a).
(b) Annual Financial Statements. As soon as practicable and in any event
within ninety (90) days (or, if earlier, on the date of any required public
filing thereof) after the end of each Fiscal Year, an audited Consolidated
balance sheet of the Borrower and its Subsidiaries as of the close of such
Fiscal Year and audited Consolidated statements of income, retained earnings and
cash flows and a report containing management's discussion and analysis of such
financial statements for the Fiscal Year then ended, including the notes
thereto, all in reasonable detail setting forth in comparative form the
corresponding figures as of the end of and for the preceding Fiscal Year and
prepared in accordance with GAAP and, if applicable, containing disclosure of
the effect on the financial position or results of operations of any change in
the application of accounting principles and practices during the year. Such
annual financial statements shall be audited by an independent certified public
accounting firm acceptable to the Administrative Agent, and accompanied by a
report thereon by such certified public accountants that is not qualified with
respect to scope limitations imposed by the Borrower or any of its
67
Subsidiaries or with respect to accounting principles followed by the Borrower
or any of its Subsidiaries not in accordance with GAAP. Delivery by the Borrower
to the Administrative Agent of the Borrower's annual report to the SEC on Form
10-K with respect to any Fiscal Year, or the availability of such report on
XXXXX Online (to the extent such report complies with the requirements of this
clause (b)), within the period specified above shall be deemed to be compliance
by the Borrower with this Section 7.1(b).
(c) Annual Business Plan and Financial Projections. As soon as practicable
and in any event within sixty (60) days after the end of each Fiscal Year, a
business plan of the Borrower and its Subsidiaries for the ensuing four (4)
fiscal quarters, such plan to be prepared in accordance with GAAP to the extent
applicable and to include, on a quarterly basis, the following: a quarterly
operating and capital budget, a projected income statement, statement of cash
flows and balance sheet and a report containing management's discussion and
analysis of such projections, accompanied by a certificate from a Responsible
Officer of the Borrower to the effect that, to such officer's knowledge, such
projections are good faith estimates (utilizing reasonable assumptions) of the
financial condition and operations of the Borrower and its Subsidiaries for such
four (4) quarter period.
(d) Unrestricted Subsidiaries. If the Borrower has designated any of its
Subsidiaries as Unrestricted Subsidiaries, then the quarterly financial
information required by clause (a) above, the annual financial information
required by clause (b) above and the projected financial statements required by
clause (c) above shall include a reasonably detailed presentation satisfactory
to the Administrative Agent, either on the face of the financial statements or
in the footnotes thereto, and in Management's Discussion and Analysis of
Financial Condition and Results of Operations, of the financial condition and
results of operations of the Borrower and its Restricted Subsidiaries separate
from the financial condition and results of operations of its Unrestricted
Subsidiaries.
SECTION 7.2 Officer's Compliance Certificate. At each time financial
statements are delivered pursuant to Sections 7.1(a) or (b) and at such other
times as the Administrative Agent shall reasonably request, an Officer's
Compliance Certificate.
SECTION 7.3 Accountants' Certificate. At each time financial
statements are delivered pursuant to Section 7.1(b), a certificate of the
independent public accountants certifying such financial statements that in
connection with their audit, nothing came to their attention that caused them to
believe that the Borrower failed to comply with the terms, covenants, provisions
or conditions of Article IX, insofar as they relate to financial and accounting
matters or, if such is not the case, specifying such non-compliance and its
nature and period of existence.
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SECTION 7.4 Other Reports
(a) Such other information regarding the operations, business affairs and
financial condition of the Borrower or any of its Subsidiaries as the
Administrative Agent or any Lender may reasonably request.
SECTION 7.5 Notice of Litigation and Other Matters. Prompt (but in no
event later than fifteen (15) days after a Responsible Officer of the Borrower
obtains knowledge thereof) telephonic and written notice of:
(a) the commencement of all proceedings and investigations by or before any
Governmental Authority and all actions and proceedings in any court or before
any arbitrator against or involving the Borrower or any Restricted Subsidiary
thereof or any of their respective properties, assets or businesses that if
adversely determined could reasonably be expected to have a Material Adverse
Effect;
(b) any notice of any violation received by the Borrower or any Restricted
Subsidiary thereof from any Governmental Authority including, without
limitation, any notice of violation of Environmental Laws, that in any such case
could reasonably be expected to have a Material Adverse Effect;
(c) any labor controversy that has resulted in, or threatens to result in,
a strike or other work action against the Borrower or any Restricted Subsidiary
thereof that could reasonably be expected to have a Material Adverse Effect;
(d) any litigation or proceeding affecting the Borrower or any of its
Restricted Subsidiaries that could reasonably be expected to be determined
adversely to the Borrower or its Restricted Subsidiaries and in which the amount
involved is $15,000,000 or more and not covered by insurance or in which
injunctive or similar relief is sought;
(e) (i) any Default or Event of Default or (ii) any event that constitutes
or that with the passage of time or giving of notice or both would constitute a
default or event of default under any Material Indebtedness;
(f) (i) any unfavorable determination letter from the Internal Revenue
Service regarding the qualification of an Employee Benefit Plan under Section
401(a) of the Code (along with a copy thereof), (ii) all notices received by the
Borrower or any ERISA Affiliate of the PBGC's intent to terminate any Pension
Plan or to have a trustee appointed to administer any Pension Plan, (iii) all
notices received by the Borrower or any ERISA Affiliate from a Multiemployer
Plan sponsor concerning the imposition or amount of withdrawal liability
pursuant to Section 4202 of ERISA and (iv) the Borrower obtaining knowledge or
reason to know that the Borrower or any ERISA Affiliate has filed or intends to
file a notice of intent to terminate any Pension Plan under a distress
termination within the meaning of Section 4041(c) of ERISA; and
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(g) the designation of any Subsidiary as a "restricted subsidiary" (or any
similar designation), or the joinder of any Subsidiary as a guarantor, under any
Material Indebtedness or any other Indebtedness permitted pursuant to Section
10.1(k).
SECTION 7.6 Accuracy of Information. All written information, reports,
statements and other papers and data furnished by or on behalf of the Borrower
to the Administrative Agent or any Lender whether pursuant to this Article VII
or any other provision of this Agreement, or any of the Security Documents,
shall, at the time the same is so furnished, comply with the representations and
warranties set forth in Section 6.1(y).
ARTICLE VIII
AFFIRMATIVE COVENANTS
Until all of the Obligations have been paid and satisfied in full and
the Revolving Credit Commitment has been terminated, and unless a waiver or
consent has been obtained in the manner provided for in Section 13.2, the
Borrower will, and will cause each of its Restricted Subsidiaries to:
SECTION 8.1 Preservation of Corporate Existence and Related Matters.
Except as permitted by Section 8.1(b) or Section 10.3:
(a) Preserve and keep in full force and effect its corporate existence, and
the corporate, partnership or other existence of each of its Subsidiaries, in
accordance with the respective organizational documents of the Borrower or any
such Subsidiary, and qualify and remain qualified as a foreign organization and
authorized to do business in each jurisdiction in which the failure to so
qualify could reasonably be expected to have a Material Adverse Effect.
(b) Preserve and keep in full force and effect the rights (charter and
statutory), licenses and franchises of the Borrower and its Subsidiaries;
provided, that the Borrower shall not be required to preserve any such right,
license or franchise, or the corporate, partnership or other existence of any of
its Subsidiaries, if the board of directors of the Borrower shall determine that
the preservation thereof is no longer desirable in the conduct of the business
of the Borrower and its Subsidiaries, taken as a whole, and that the loss
thereof is not adverse in any material respect to the Lenders.
SECTION 8.2 Maintenance of Property. Protect and preserve all material
properties necessary in and material to its business, including copyrights,
patents, trade names, service marks and trademarks; maintain in good working
order and condition, ordinary wear and tear excepted, all buildings, equipment
and other tangible real and personal property; and from time to time make or
cause to be made all repairs, renewals and replacements thereof and additions to
such property necessary for the conduct of its
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business, so that the business carried on in connection therewith may be
conducted in a commercially reasonable manner.
SECTION 8.3 Insurance. Maintain insurance with financially sound and
reputable insurance companies against such risks and in such amounts as are
customarily maintained by similar businesses and as may be required by
Applicable Law and as are required by any Security Documents (including, without
limitation, hazard and business interruption insurance), and on the Closing Date
and from time to time thereafter deliver to the Administrative Agent upon its
request information in reasonable detail as to 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.
SECTION 8.4 Accounting Methods and Financial Records. Maintain a
system of accounting, and keep proper books, records and accounts (that shall be
true and correct in all material respects) as may be required or as may be
necessary to permit the preparation of financial statements in accordance with
GAAP and in compliance with applicable regulations of any Governmental Authority
having jurisdiction over it or any of its properties.
SECTION 8.5 Payment and Performance of Obligations. Pay and perform
all Obligations under this Agreement and the other Loan Documents, and pay or
perform (a) all taxes, assessments and other governmental charges that may be
levied or assessed upon it or any of its property, and (b) all other
indebtedness, obligations and liabilities in accordance with customary trade
practices; provided, that the Borrower or such Restricted Subsidiary may contest
any item described in clauses (a) or (b) of this Section in good faith so long
as adequate reserves are maintained with respect thereto in accordance with
GAAP.
SECTION 8.6 Compliance With Laws and Approvals. Observe and remain in
compliance with all Applicable Laws and maintain in full force and effect all
Governmental Approvals, in each case applicable to the conduct of its business
except where the failure to do so could not reasonably be expected to have a
Material Adverse Effect.
SECTION 8.7 Environmental Laws. In addition to and without limiting
the generality of Section 8.6, and except to the extent that a failure to comply
with any of the following, individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect, (a) comply with, and
use reasonable efforts to ensure such compliance by all of its tenants and
subtenants, if any, with, all applicable Environmental Laws and obtain and
comply with and maintain, and use reasonable efforts to ensure that all tenants
and subtenants, if any, obtain and comply with and maintain, any and all
licenses, approvals, notifications, registrations or permits required by
applicable Environmental Laws, and (b) conduct and complete all investigations,
studies, sampling and
71
testing, and all remedial, removal and other actions required under
Environmental Laws, and promptly comply with all lawful orders and directives of
any Governmental Authority regarding Environmental Laws. Except as otherwise
noted, the Borrower will defend, indemnify and hold harmless the Administrative
Agent and the Lenders, and their respective parents, Subsidiaries, Affiliates,
employees, agents, officers and directors, from and against any claims, demands,
penalties, fines, liabilities, settlements, damages, costs and expenses of
whatever kind or nature, known or unknown, contingent or otherwise, arising out
of, or in any way relating to the presence of Hazardous Materials in, on or
under properties owned, leased or operated by the Borrower and its Subsidiaries,
or the Borrower's or any of its Subsidiaries' violation of, noncompliance with
or liability under any Environmental Laws applicable to the operations of the
Borrower or any such Subsidiary, or any orders, requirements or demands of
Governmental Authorities related thereto, including, without limitation,
reasonable attorney's and consultant's fees, investigation and laboratory fees,
response costs, court costs and litigation expenses, except to the extent that
any of the foregoing directly result from the gross negligence or willful
misconduct of the party seeking indemnification therefor, as determined by a
court of competent jurisdiction by final nonappealable judgment.
SECTION 8.8 Compliance with ERISA. In addition to and without limiting
the generality of Section 8.6, (a) except where the failure to so comply could
not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect, (i) comply with all material applicable provisions of ERISA and
the regulations and published interpretations thereunder with respect to all
Employee Benefit Plans, (ii) not take any action or fail to take action the
result of which could be a liability to the PBGC or to a Multiemployer Plan,
(iii) not participate in any prohibited transaction that could result in any
civil penalty under ERISA or tax under the Code and (iv) operate each Employee
Benefit Plan in such a manner that will not incur any tax liability under
Section 4980B of the Code or any liability to any qualified beneficiary as
defined in Section 4980B of the Code and (b) furnish to the Administrative Agent
upon the Administrative Agent's request such additional information about any
Employee Benefit Plan as may be reasonably requested by the Administrative
Agent.
SECTION 8.9 Compliance With Agreements. Comply in all material
respects with each material term, condition and provision of all material
leases, agreements and other instruments entered into in the conduct of its
business including, without limitation, any indenture, contract or agreement
executed in connection with any Material Indebtedness; provided, that the
Borrower or any such Restricted Subsidiary may contest any such lease, agreement
or other instrument in good faith through applicable proceedings so long as
adequate reserves are maintained in accordance with GAAP.
SECTION 8.10 Visits and Inspections. Permit representatives of the
Administrative Agent or any Lender, from time to time upon prior reasonable
notice and at such times during normal business hours, at the Borrower's
expense, to visit and inspect its properties; inspect, audit and make extracts
from its books, records and files, including, but not limited to, management
letters prepared by independent
72
accountants; and discuss with its principal officers, and its independent
accountants, its business, assets, liabilities, financial condition and results
of operations. Upon the occurrence and during the continuance of an Event of
Default, the Administrative Agent or any Lender may do any of the foregoing at
any time without advance notice.
SECTION 8.11 Additional Subsidiaries.
(a) Additional Domestic Subsidiaries. Notify the Administrative Agent of
(i) the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary
in accordance with Section 8.12 or (ii) the creation or acquisition of any
Domestic Subsidiary that is a Restricted Subsidiary and promptly thereafter (and
in any event within thirty (30) days), cause such Person to (i) become a
Guarantor by delivering to the Administrative Agent a duly executed supplement
to the Subsidiary Guaranty Agreement or such other document as the
Administrative Agent shall deem appropriate for such purpose, (ii) pledge a
security interest in all applicable Collateral covered under the Security
Documents owned by such Restricted Subsidiary by delivering to the
Administrative Agent a duly executed supplement to each Security Document or
such other document as the Administrative Agent reasonably shall deem
appropriate for such purpose and to comply with the terms of each Security
Document, (iii) deliver to the Administrative Agent such documents and
certificates referred to in Section 5.2 as may be reasonably requested by the
Administrative Agent, (iv) deliver to the Administrative Agent such original
Capital Stock or other certificates and stock or other transfer powers
evidencing the Capital Stock of such Person, (v) deliver to the Administrative
Agent such updated Schedules to the Loan Documents as may be reasonably
requested by the Administrative Agent with respect to such Person, and (vi)
deliver to the Administrative Agent such other documents as may be reasonably
requested by the Administrative Agent, all in form, content and scope reasonably
satisfactory to the Administrative Agent.
(b) Additional Foreign Subsidiaries. Notify the Administrative Agent at the
time that any Person becomes a first-tier Foreign Subsidiary that is a
Restricted Subsidiary, and promptly thereafter (and in any event within
forty-five (45) days after notification), cause (i) the Borrower or the
applicable Restricted Subsidiary to deliver to the Administrative Agent Security
Documents pledging sixty-five percent (65%) (or such lesser percentage as may
then be necessary to avoid material adverse tax consequences) of the total
outstanding Capital Stock of such new 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 the Capital Stock of such new Foreign Subsidiary, together with an
appropriate undated stock power for each certificate duly executed in blank by
the registered owner thereof), (ii) such Person to deliver to the Administrative
Agent such documents and certificates referred to in Section 5.2 as may be
reasonably requested by the Administrative Agent (specifically excluding,
however, any joinders or supplements to the Subsidiary Guaranty Agreement and
the Security Documents), (iii) deliver to the Administrative Agent such updated
Schedules to the Loan Documents as may be reasonably requested by the
Administrative Agent with regard to such Person and (iv) such Person to deliver
to the Administrative Agent such other documents as may
73
be reasonably requested by the Administrative Agent, all in form, content and
scope reasonably satisfactory to the Administrative Agent.
SECTION 8.12 Designation of Restricted and Unrestricted Subsidiaries.
(a) Subject to the terms of this Section, the board of directors of the
Borrower may designate any Restricted Subsidiary as an Unrestricted Subsidiary
(or designate any newly formed or acquired Subsidiary as an Unrestricted
Subsidiary to the extent such formation or acquisition is otherwise permitted
hereunder); provided that (i) such designation would not result in a Default or
Event of Default and (ii) any such individual Subsidiary is not a guarantor of,
or a "restricted subsidiary" (or equivalent term) under, any Material
Indebtedness or any other Indebtedness permitted pursuant to Section 10.1(k). If
a Subsidiary is designated as an Unrestricted Subsidiary, the aggregate fair
market value of all outstanding Investments owned by the Borrower and its
Restricted Subsidiaries in such Subsidiary shall be deemed to be Investments
made as of the time of the designation, subject to the limitations hereof on
Restricted Payments. That designation shall only be permitted if the Investment
would be permitted at that time and if the Restricted Subsidiary otherwise meets
the definition of an Unrestricted Subsidiary.
(b) Any designation of a Subsidiary as an Unrestricted Subsidiary shall be
evidenced to the Administrative Agent by providing prompt written notice to the
Administrative Agent together with a certified copy of the resolution of the
board of directors of the Borrower giving effect to such designation and a
certificate from a Responsible Officer of the Borrower certifying that such
designation complied with the conditions set forth in the definition of
"Unrestricted Subsidiary" and was permitted by this Section. If, at any time,
any Unrestricted Subsidiary would fail to meet the requirements as an
Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted
Subsidiary for purposes of this Agreement and the other Loan Documents and any
Indebtedness of such Subsidiary shall be deemed to be incurred by a Restricted
Subsidiary of the Borrower as of such date and, if such Indebtedness is not
permitted to be incurred as of such date under Section 10.1, the Borrower shall
be in Default of such covenant.
(c) The board of directors of the Borrower may at any time redesignate any
Unrestricted Subsidiary to be a Restricted Subsidiary; provided that such
redesignation shall be deemed to be an incurrence of Indebtedness by a
Restricted Subsidiary of the Borrower of any outstanding Indebtedness of such
Unrestricted Subsidiary and such redesignation shall only be permitted if (i)
such Indebtedness is permitted under Section 10.1, (ii) the Borrower has
demonstrated to the Administrative Agent compliance with Section 9.1 and Section
9.2 calculated on a pro forma basis as if such redesignation had occurred at the
beginning of the most recent four-quarter period ended prior to the date of such
redesignation for which financial statements have to be delivered pursuant to
Section 7.1, (iii) the Borrower has complied with Section 8.11, and (iv) no
Default or Event of Default would be in existence following such redesignation.
(d) Notwithstanding the foregoing, promptly after the date on which the
Borrower or the Administrative Agent determines that any individual Unrestricted
Subsidiary fails to satisfy
74
the requirements specified in the definition of "Unrestricted Subsidiary", then
such Unrestricted Subsidiary shall be redesignated as a Restricted Subsidiary
and the Borrower agrees to deliver all instruments, documents, certificates and
opinions required pursuant to Section 8.11(a).
SECTION 8.13 Use of Proceeds. The Borrower shall use the proceeds of
the Extensions of Credit (a) to refinance and/or replace existing Indebtedness
of the Borrower under the Existing Credit Facility, (b) for general corporate
purposes of the Borrower and its Restricted Subsidiaries, including, without
limitation, working capital, capital expenditures in the ordinary course of
business and Permitted Acquisitions, and (c) to pay fees and expense related to
this Agreement.
SECTION 8.14 Further Assurances. Make, execute and deliver all such
additional and further acts, things, deeds and instruments as the Administrative
Agent or the Required Lenders (through the Administrative Agent) may reasonably
require to document and consummate the transactions contemplated hereby and to
vest completely in and insure the Administrative Agent and the Lenders their
respective rights under this Agreement, the Letters of Credit and the other Loan
Documents.
ARTICLE IX
FINANCIAL COVENANTS
Until all of the Obligations have been paid and satisfied in full and
the Revolving Credit Commitment has been terminated, and unless a waiver or
consent has been obtained in the manner set forth in Section 13.2, the Borrower
and its Restricted Subsidiaries on a Consolidated basis will not:
SECTION 9.1 Consolidated Total Leverage Ratio. As of any fiscal
quarter ending during a period specified below, permit the Consolidated Total
Leverage Ratio to be greater than the corresponding ratio set forth below:
PERIOD MAXIMUM RATIO
------ -------------
Closing Date through December 31, 2006 5.50 to 1.00
January 1, 2007 through December 31, 2007 5.25 to 1.00
January 1, 2008 and thereafter 5.00 to 1.00
SECTION 9.2 Interest Coverage Ratio. As of any fiscal quarter end,
permit the ratio of (a) Consolidated EBITDA for the period of four (4)
consecutive fiscal quarters ending on or immediately prior to such date to (b)
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Consolidated Interest Expense for the period of four (4) consecutive fiscal
quarters ending on such date to be less than 2.25 to 1.00.
ARTICLE X
NEGATIVE COVENANTS
Until all of the Obligations have been paid and satisfied in full and
the Revolving Credit Commitment has been terminated, and unless a waiver or
consent has been obtained in the manner set forth in Section 13.2, the Borrower
will not and will not permit any of its Restricted Subsidiaries to:
SECTION 10.1 Limitations on Indebtedness. Create, incur, assume or
suffer to exist any Indebtedness except:
(a) the Obligations (excluding Hedging Obligations permitted pursuant to
Section 10.1(b));
(b) Indebtedness incurred in connection with a Hedging Agreement with a
counterparty and upon terms and conditions (including interest rate) reasonably
satisfactory to the Administrative Agent; provided, that any counterparty that
is a Lender shall be deemed satisfactory to the Administrative Agent;
(c) Indebtedness existing on the Closing Date and listed on Schedule
6.1(l), and the renewal, refinancing, refunding, extension and replacement (but
not the increase in the aggregate principal amount) thereof;
(d) Indebtedness of the Borrower and its Restricted Subsidiaries incurred
in connection with Capital Leases;
(e) purchase money Indebtedness of the Borrower and its Restricted
Subsidiaries;
(f) Indebtedness of a Person existing at the time such Person became a
Restricted Subsidiary or assets were acquired from such Person, to the extent
such Indebtedness was not incurred in connection with or in contemplation of,
such Person becoming a Restricted Subsidiary or the acquisition of such assets,
not to exceed in the aggregate at any time outstanding $100,000,000, and any
refinancings, refundings, renewals or extensions thereof; provided that, any (i)
such refinancings, refundings, renewals or extensions do not increase the
principal amount thereof, (ii) such refinancings, refundings, renewals or
extensions are issued on terms and conditions reasonably satisfactory to the
Administrative Agent (including a maturity date at least six (6) months after
the Revolving Credit Maturity Date) and (iii) no Default or Event of Default
exists and is continuing at the time of consummation thereof (both before and
giving effect thereto);
(g) Guaranty Obligations in favor of the Administrative Agent for the
benefit of the Administrative Agent and the Lenders;
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(h) Guaranty Obligations with respect to Indebtedness permitted pursuant to
this Section;
(i) Indebtedness owed by any Credit Party to another Credit Party;
(j) Indebtedness of the Borrower or any Restricted Subsidiary consisting of
Qualified Trust Indebtedness;
(k) unsecured Indebtedness of the Borrower and its Restricted Subsidiaries
pursuant to each of the Senior Unsecured Notes, and, in each case, any
refinancings, refundings, renewals, extensions or exchanges thereof
("Refinancing Indebtedness"); provided that (i) such Refinancing Indebtedness is
an original aggregate principal amount not greater than the aggregate principal
amount of, and unpaid interest on, the Indebtedness being refinanced, refunded,
renewed, extended or exchanged plus the amount of any premiums required to be
paid thereon and fees and expense associated therewith, (ii) such Refinancing
Indebtedness has a later or equal final maturity and a larger or equal weighted
average life than the Indebtedness being refinanced, refunded, renewed, extended
or exchanged, (iii) the covenants, events of default and any Guaranty
Obligations in respect thereof, taken as a whole, shall not be materially less
favorable to the Borrower and its Restricted Subsidiaries (as determined by the
Administrative Agent in its reasonable discretion) than those contained in the
Indebtedness being refinanced, refunded, renewed, extended or exchanged and (iv)
at the time of, and after giving effect to, such refinancing, refunding,
renewal, extension or exchange, no Event of Default shall have occurred and be
continuing;
(l) additional unsecured Indebtedness of the Borrower or its Restricted
Subsidiaries; provided (i) such Indebtedness matures at least six (6) months
after the Revolving Credit Maturity Date, (ii) after giving effect to the
incurrence of any such Indebtedness on a pro forma basis, as if such incurrence
of Indebtedness had occurred on the first day of the twelve month period ending
on the last day of the Borrower's then most recently completed fiscal quarter,
the Borrower and its Restricted Subsidiaries would have been in compliance with
all the financial covenants set forth in Article IX, and the Borrower shall have
delivered to the Administrative Agent a certificate of its chief financial
officer to such effect setting forth in reasonable detail the computations
necessary to determine such compliance, (iii) at the time of the incurrence of
such Indebtedness and after giving effect thereto, no Default or Event of
Default shall exist or be continuing and (iv) the documentation governing such
Indebtedness contains customary market terms;
(m) additional secured Indebtedness not otherwise permitted pursuant to
this Section in an aggregate amount outstanding not to exceed $500,000,000;
provided that (i) not more than $250,000,000 of such secured Indebtedness is
recourse to any Credit Party, (ii) such Indebtedness matures at least six (6)
months after the Revolving Credit Maturity Date and (iii) at the time of the
incurrence of such Indebtedness and after giving effect thereto, no Default or
Event of Default shall exist or be continuing;
(n) Indebtedness incurred by the Borrower or any of its Restricted
Subsidiaries, including Indebtedness represented by letters of credit for the
account of the Borrower or any Restricted Subsidiary, in respect of workers'
compensation claims, self-insurance obligations,
77
performance, proposal, completion, surety and similar bonds and completion
guarantees provided by the Borrower or its Restricted Subsidiaries in the
ordinary course of business; provided that the underlying obligation to perform
is that of the Borrower or one of its Restricted Subsidiaries and not that of
any other Person and, provided, further, that such underlying obligation is not
in respect of borrowed money;
(o) Indebtedness of the Borrower consisting of customary indemnification,
deferred purchase price adjustments or similar obligations, in each case,
incurred or assumed in connection with the acquisition of any business or assets
permitted to be acquired hereunder; and
(p) Indebtedness of the Borrower or any Restricted Subsidiary arising from
the honoring by a bank or other financial institution of a check, draft or
similar instrument (except in the case of daylight overdrafts) drawn against
insufficient funds in the ordinary course of business, provided that such
Indebtedness is extinguished within five (5) Business Days of incurrence.
SECTION 10.2 Limitations on Liens. Create, incur, assume or suffer to
exist, any Lien on or with respect to any of its assets or properties
(including, without limitation, shares of Capital Stock), real or personal,
whether now owned or hereafter acquired, except:
(a) Liens for taxes, assessments or governmental charges or claims that are
not yet delinquent or that are being contested in good faith by appropriate
proceedings promptly instituted and diligently pursued; provided that any
reserve or other appropriate provision as is required in conformity with GAAP
has been made therefor;
(b) Liens or deposits to secure the performance of statutory obligations,
surety or appeal bonds, performance bonds or other obligations of a like nature
incurred in the ordinary course of business;
(c) Liens consisting of judgments or judicial attachment liens (including
prejudgment attachment), provided that the enforcement of such Liens is
effectively stayed, or payment of which is covered in full (subject to customary
deductible) by insurance, or that do not otherwise result in an Event of
Default;
(d) the claims of materialmen, mechanics, carriers, warehousemen,
processors or landlords for labor, materials, supplies or rentals incurred in
the ordinary course of business, (i) that are not overdue for a period of more
than thirty (30) days or (ii) that are being contested in good faith and by
appropriate proceedings if adequate reserves are maintained to the extent
required by GAAP;
(e) Liens consisting of (i) deposits or pledges made in the ordinary course
of business in connection with, or to secure payment of, obligations under
workers' compensation, unemployment insurance or similar legislation, (ii) good
faith deposits in connection with bids, tenders, contracts (other than for the
payment of Indebtedness) or leases to which the Borrower or any Restricted
Subsidiary is a party or (iii) deposits as security for contested taxes or
import or customs duties or for the payment of rent, incurred in the ordinary
course of business;
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(f) Liens constituting encumbrances in the nature of zoning restrictions,
easements and rights or restrictions of record on the use of real property that
in the aggregate are not substantial in amount and that do not, in any case,
materially detract from the value of such property or materially impair the use
thereof in the ordinary conduct of business;
(g) Liens securing Hedging Obligations so long as the related Indebtedness
was incurred in compliance with Section 10.1(b);
(h) leases and subleases of real property that do not materially interfere
with the ordinary conduct of the business of the Borrower or any of its
Restricted Subsidiaries;
(i) Liens of the Administrative Agent for the benefit of the Administrative
Agent and the Lenders under the Loan Documents;
(j) Liens existing on any asset of any Person at the time such Person
becomes a Restricted Subsidiary or is merged or consolidated with or into a
Restricted Subsidiary (i) that were not created in contemplation of or in
connection with such event, (ii) that do not extend to or cover any other
property or assets of Borrower or any Restricted Subsidiary and (iii) so long as
any Indebtedness related to any such Liens is permitted under Section 10.1(f);
provided that, to the extent any such Liens extend to or cover any assets of
such Person included in the Collateral, (A) the Borrower shall keep records for
the accounts receivable of such Person separate from those of the Borrower and
its Restricted Subsidiaries and (B) such Person shall not be merged,
consolidated or liquidated with or into the Borrower or any Restricted
Subsidiary unless such Liens are released in connection therewith;
(k) Liens arising solely by virtue of any statutory or common law
provisions relating to banker's liens, rights of set-off or similar rights and
remedies as to deposit accounts or other funds maintained with a credit or
depository institution;
(l) Liens in existence on the Closing Date and described on Schedule 10.2;
(m) Liens securing Indebtedness permitted under Sections 10.1(d) and (e);
provided that (i) such Liens shall be created substantially simultaneously with
the acquisition or lease of the related asset, (ii) such Liens do not at any
time encumber any assets other than the assets financed by such Indebtedness,
(iii) the amount of Indebtedness secured thereby is not increased and (iv) the
principal amount of Indebtedness secured by any such Lien shall at no time
exceed one hundred percent (100%) of the original purchase price or lease
payment amount of such assets at the time of acquisition;
(n) Liens not otherwise permitted hereunder securing obligations not at any
time exceeding in the aggregate $15,000,000;
(o) Liens securing Indebtedness permitted under Section 10.1(m); provided
that (i) the total Asset Lien Value of assets of the Borrower and its Restricted
Subsidiaries owned on the Closing Date that are subject to such Liens shall not
exceed (A) $500,000,000 less (B) the aggregate amount of all Asset Dispositions
made pursuant to Section 10.4(k), and (ii) the total Asset Lien Value subject to
such Liens (including those permitted by clause (i) of this proviso) shall not
exceed $1,000,000,000 in the aggregate;
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(p) Liens on the Capital Stock of Agecroft to secure the obligations of
Agecroft;
(q) Liens in favor of the Borrower or the Subsidiary Guarantors; and
(r) Liens on the Capital Stock of Unrestricted Subsidiaries.
SECTION 10.3 Limitations on Mergers and Liquidation. Merge,
consolidate or enter into any similar combination with any other Person or
liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution)
except:
(a) any Person may be merged or consolidated with or into the Borrower
(provided that the Borrower shall be the continuing or surviving Person);
(b) any Person other than the Borrower may be merged with or consolidated
into any Restricted Subsidiary; provided that such Restricted Subsidiary shall
be the continuing or surviving Person;
(c) any Subsidiary of the Borrower may be liquidated, wound-up and/or
dissolved into the Borrower or any Restricted Subsidiary to the extent that such
liquidation, winding-up and/or dissolution would not violate Section 8.1; and
(d) any Subsidiary of the Borrower may merge into the Person such
Subsidiary was formed to acquire in connection with a Permitted Acquisition.
SECTION 10.4 Limitations on Asset Dispositions. Make any Asset
Disposition (including, without limitation, the sale of any receivables and
leasehold interests and any sale-leaseback or similar transaction) except:
(a) the sale or lease of equipment, inventory or other assets in the
ordinary course of business;
(b) the sale of obsolete, worn-out or surplus assets no longer used or
usable in the business of the Borrower or any of its Restricted Subsidiaries;
(c) any Subsidiary of the Borrower may sell, lease, transfer or otherwise
dispose of any or all of its assets (upon voluntary liquidation or otherwise) to
the Borrower or any other Subsidiary of the Borrower (provided that if the
transferor in such a transaction is a Restricted Subsidiary, then the transferee
must either be the Borrower or a Restricted Subsidiary);
(d) the sale or other disposition of investments permitted pursuant to
clause (b) of the definition of Permitted Investments;
(e) the sale or discount without recourse of accounts receivable arising in
the ordinary course of business in connection with the compromise or collection
thereof;
(f) the disposition of any Hedging Agreement;
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(g) the sale (i) for cash or Purchase Notes by the Borrower or any of its
Restricted Subsidiaries of Unoccupied Prison Facilities for a minimum price per
bed of $25,000, (ii) for cash of other Prison Facilities having a fair market
value not to exceed $45,000,000 in the aggregate in any Fiscal Year, and (iii)
for cash of any Prison Facility to the United States Bureau of Prisons or any
other federal, state or local governmental agency in connection with a
management contract with such entity with respect to such Prison Facility, such
Asset Disposition to be for fair market value, as determined in good faith by
the board of directors of the Borrower and certified in writing by the board of
directors to the Administrative Agent;
(h) any sale or other disposition for cash of Purchase Notes for fair
market value;
(i) the sale and leaseback of Unoccupied Prison Facilities to Governmental
Authorities in connection with management contracts relating thereto; provided
that the gross cash proceeds of such sale and leaseback transaction are at least
equal to the fair market value, as determined in good faith by the Borrower, of
such Unoccupied Prison Facility that is the subject of that sale and leaseback
transaction and such transaction is otherwise on terms and conditions reasonably
satisfactory to the Administrative Agent;
(j) Asset Swaps; provided that (i) the Borrower would, at the time of such
Asset Swap and after giving pro forma effect thereto as if such Asset Swap had
been made at the beginning of the applicable four-fiscal quarter period, have
been permitted to incur at least $1.00 of additional Indebtedness without
declining below a Consolidated Fixed Charge Coverage Ratio of 2.0 to 1.0 for the
Borrower's most recently ended four full fiscal quarters for which internal
financial statements are available immediately preceding the date on which such
Asset Swap is to made and (ii) the board of directors of the Borrower determines
that the fair market value of the assets received by the Borrower in the Asset
Swap is not less than the fair market value of the assets disposed of by the
Borrower in such Asset Swap and such determination is evidenced by a resolution
of the board of directors of the Borrower set forth in an officer's certificate
delivered to the Administrative Agent, in form and substance satisfactory to the
Administrative Agent;
(k) Asset Dispositions of assets owned by the Borrower and its Restricted
Subsidiaries on the Closing Date, not otherwise permitted pursuant to this
Section, in an aggregate amount not to exceed (i) $500,000,000 less (ii) the
aggregate amounts of Liens incurred pursuant to Section 10.2(o) that are subject
to clause (i) of the proviso of such Section (after giving effect to any Liens
that are released in connection with such Asset Dispositions);
(l) the sale by CCA (U.K.) Ltd, a U.K. corporation, of its interest in
Agecroft;
(m) the sale or other disposition by the Borrower of its interest in the
Agecroft Note;
(n) sales or other dispositions permitted pursuant to Section 10.5;
(o) Asset Dispositions not otherwise permitted pursuant to this Section in
an aggregate amount not to exceed $15,000,000 in any Fiscal Year; and
(p) additional Asset Dispositions of assets acquired by the Borrower and
its Restricted Subsidiaries after the Closing Date and Designated Assets,
subject to the terms and conditions set forth below:
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(i) the Borrower (or the Restricted Subsidiary, as the case may be)
receives consideration at the time of the Asset Disposition at least equal to
(A) the fair market value of the assets (other than Designated Assets) sold or
otherwise disposed of and (B) the Designated Asset Value of the Designated
Assets sold or otherwise disposed of;
(ii) the fair market value or Designated Asset Value, as applicable,
is determined by the board of directors of the Borrower and evidenced by a
resolution of such board of directors set forth in an officer's certificate
delivered to the Administrative Agent, in form and substance reasonably
satisfactory to the Administrative Agent; and
(iii) at least 75% of the consideration received in the Asset
Disposition by the Borrower or such Restricted Subsidiary is in the form of cash
or Cash Equivalents. For purposes of this clause (iii) only, each of the
following will be deemed to be cash:
(A) any liabilities, as shown on the Borrower's or such
Restricted Subsidiary's most recent balance sheet, of the Borrower or any
Restricted Subsidiary (other than contingent liabilities and liabilities that
are by their terms subordinated to this Agreement) that are assumed by the
transferee of any such assets pursuant to a customary novation agreement that
releases the Borrower or such Restricted Subsidiary from further liability;
(B) any securities, notes or other obligations received by the
Borrower or any such Restricted Subsidiary from such transferee that are
converted within ninety (90) days of the applicable Asset Disposition by the
Borrower or such Restricted Subsidiary into cash or Cash Equivalents, to the
extent of the cash or Cash Equivalents received in that conversion;
(C) 100% of the securities, notes or other obligations or
Indebtedness actually received by the Borrower as consideration for the sale or
other disposition of a Designated Asset pursuant to the terms of a Designated
Asset Contract, but only to the extent that such securities, notes or other
obligations or Indebtedness were explicitly required to be included, or
permitted to be included solely at the option of the purchaser, in such
consideration pursuant to the terms of the applicable Designated Asset Contract;
(D) 100% of the Indebtedness actually received by the Borrower as
consideration for the sale or other disposition of an Unoccupied Prison
Facility; and
(E) any Designated Non-Cash Consideration received by the
Borrower or any such Restricted Subsidiary in the Asset Disposition;
provided, however, that within 360 days after the receipt of any Net Proceeds
from an Asset Disposition, the Borrower may apply the Net Proceeds from any
Asset Disposition permitted pursuant to this Section 10.4(p):
(1) to acquire all or substantially all of the assets of, or a
majority of the Capital Stock of, another Permitted Business;
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(2) to make a capital expenditure (provided, that the completion of
(i) construction of new facilities, (ii) expansions to existing facilities, and
(iii) repair or reconstruction of damaged or destroyed facilities that commences
within 360 days after the receipt of any Net Proceeds from an Asset Disposition
may extend for an additional 360 day period if the Net Proceeds to be used for
such construction, expansion or repair are committed to and set aside
specifically for such activity within 360 days of their receipt); or
(3) to acquire other long-term assets that are used or useful in a
Permitted Business.
Pending the final application of any Net Proceeds, the Borrower may
use the Net Proceeds to pay Loans or invest the Net Proceeds in any Permitted
Investment. Any Net Proceeds from Asset Dispositions that are not applied or
invested as provided in the preceding paragraph shall constitute "Excess
Proceeds." Within five (5) days of each date on which the aggregate amount of
Excess Proceeds exceeds $15,000,000, the Borrower shall apply all the Excess
Proceeds to prepay the Loans in the manner set forth in Section 2.4(b), without
a corresponding permanent reduction in the Revolving Credit Commitment. If any
Excess Proceeds remain after such prepayment of the Loans, the Borrower shall
offer to purchase Senior Unsecured Notes with such remaining Excess Proceeds
pursuant to the terms and conditions of the Senior Unsecured Notes. Upon
application of the Excess Proceeds to prepay the Loans and prepay the Senior
Unsecured Notes, the amount of Excess Proceeds shall be reset at zero.
SECTION 10.5 Restricted Payments. (a) Declare or pay any dividend or
make any other payment or distribution on account of the Borrower's, or any
Restricted Subsidiary's, Capital Stock (including, without limitation, any
payment in connection with any merger or consolidation involving the Borrower or
any Restricted Subsidiary) or to the direct or indirect holders of the
Borrower's or any Restricted Subsidiary's Capital Stock in their capacity as
such (other than dividends or distributions (i) payable in Capital Stock (other
than Disqualified Stock) of the Borrower or (ii) payable to the Borrower and/or
a Restricted Subsidiary of the Borrower), (b) purchase, redeem or otherwise
acquire or retire for value (including, without limitation, in connection with
any merger or consolidation involving the Borrower) any Capital Stock of the
Borrower, (c) make any payment on or with respect to, or purchase, redeem,
defease or otherwise acquire or retire for value any Subordinated Indebtedness,
except a payment of interest or principal at the Stated Maturity thereof or a
payment of principal or interest on Indebtedness owed to the Borrower or any of
its Restricted Subsidiaries, or (d) make any Restricted Investment (all such
payments and other actions set forth in these clauses (a) through (d) above
being collectively referred to as "Restricted Payments");
unless, at the time of and after giving effect to such Restricted
Payment:
(a) no Default or Event of Default has occurred and is continuing or would
occur as a consequence of such Restricted Payment;
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(b) the Borrower would, at the time of such Restricted Payment and after
giving pro forma effect thereto as if such Restricted Payment had been made at
the beginning of the applicable four-fiscal quarter period, have been permitted
to incur at least $1.00 of additional Indebtedness without declining below a
Consolidated Fixed Charge Coverage Ratio of 2.0 to 1.0 for the Borrower's most
recently ended four full fiscal quarters for which internal financial statements
are available immediately preceding the date on which such Restricted Payment is
to made; and
(c) such Restricted Payment, together with the aggregate amount of all
other Restricted Payments made by the Borrower and its Restricted Subsidiaries
after May 3, 2002 (excluding Restricted Payments permitted by clauses (b), (c),
(d), (e), (g), (h) and (i) of the next succeeding paragraph), is less than the
sum, without duplication, of:
(i) 50% of the Consolidated Net Income of the Borrower, for the period
(taken as one accounting period) from the beginning of the first fiscal quarter
commencing after May 3, 2002 to the end of the Borrower's most recently ended
fiscal quarter for which internal financial statements are available at the time
of such Restricted Payment (or, if such Consolidated Net Income for such period
is a deficit, less 100% of such deficit), plus
(ii) 100% of the aggregate net cash proceeds received by the Borrower
(including the fair market value of any Permitted Business or assets used or
useful in a Permitted Business to the extent acquired in consideration of
Capital Stock of the Borrower (other than Disqualified Stock)) since May 3, 2002
as a contribution to its common equity capital or from the issue or sale of
Capital Stock of the Borrower (other than Disqualified Stock) or from the issue
or sale of convertible or exchangeable Disqualified Stock or convertible or
exchangeable debt securities of the Borrower that have been converted into or
exchanged for such Capital Stock (other than Capital Stock (or Disqualified
Stock or debt securities) sold to a Subsidiary of the Borrower), plus
(iii) to the extent that any Restricted Investment (other than a
Restricted Investment permitted by clause (e) of the next succeeding paragraph)
that was made after May 3, 2002 is sold for cash or otherwise liquidated or
repaid for cash, the lesser of (i) the cash return of capital with respect to
such Restricted Investment (less the cost of disposition, if any) and (ii) the
initial amount of such Restricted Investment, plus
(iv) to the extent that any Unrestricted Subsidiary of the Borrower is
redesignated as a Restricted Subsidiary after May 3, 2002, the lesser of (i) the
fair market value of the Borrower's Investment in such Subsidiary as of the date
of such redesignation or (ii) such fair market value as of the date on which
such Subsidiary was originally designated as an Unrestricted Subsidiary, plus
(v) $25,000,000.
So long as no Default or Event of Default has occurred and is
continuing or would be caused thereby, the preceding provisions shall not
prohibit:
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(a) the payment of any dividend within 60 days after the date of
declaration of the dividend, if at the date of declaration the dividend payment
would have complied with the provisions of this Agreement;
(b) the redemption, repurchase, retirement, defeasance or other acquisition
of any subordinated Indebtedness of the Borrower or any Guarantor or of any
Capital Stock of the Borrower in exchange for, or out of the net cash proceeds
of the substantially concurrent sale (other than to a Subsidiary of the
Borrower) of, Capital Stock of the Borrower (other than Disqualified Stock);
provided that the amount of any such net cash proceeds that are utilized for any
such redemption, repurchase, retirement, defeasance or other acquisition shall
be excluded from clause (c)(ii) of the preceding paragraph;
(c) the defeasance, redemption, repurchase or other acquisition of
subordinated Indebtedness of the Borrower or any Guarantor with the net cash
proceeds from an incurrence of Permitted Refinancing Indebtedness;
(d) (i) loans or advances from any Restricted Subsidiary to the Borrower or
any of its Restricted Subsidiaries and (ii) the payment of any dividend or the
making of any other distribution by a Restricted Subsidiary of the Borrower (x)
to the Borrower or any Restricted Subsidiary or (y) to the holders of its
Capital Stock on a pro rata basis;
(e) (i) the purchase, redemption or other acquisition, cancellation or
retirement for value of Capital Stock, or options, warrants, equity appreciation
rights or other rights to purchase or acquire Capital Stock of the Borrower or
any Restricted Subsidiary of the Borrower or any parent of the Borrower held by
any existing or former employees of the Borrower or any Subsidiary of the
Borrower or their assigns, estates or heirs, in each case in connection with the
repurchase provisions under employee stock option or stock purchase agreements
or other agreements to compensate management employees; provided that such
redemptions or repurchases pursuant to this clause will not exceed $2,500,000 in
the aggregate during any calendar year and $10,000,000 in the aggregate for all
such redemptions and repurchases; provided further, that the Borrower may
carry-forward and make in a subsequent calendar year, in addition to the amounts
permitted for such calendar year, the amount of such redemptions or repurchases
permitted to have been made but not made in any preceding calendar year;
provided further that such amount in any calendar year may be increased by an
amount not to exceed (x) the cash proceeds from the sale of Capital Stock of the
Borrower to existing or former employees of the Borrower or any Subsidiary of
the Borrower after the Closing Date (to the extent the cash proceeds from the
sale of such Capital Stock have not otherwise been applied to the payment of
Restricted Payments by virtue of clause (c)(ii) of the preceding paragraph) plus
(y) the cash proceeds of key man life insurance policies received by the
Borrower and its Subsidiaries after the Closing Date less (z) the amount of any
Restricted Payments previously made pursuant to clause (x) and (y) of this
clause (e)(i) and (ii) loans or advances to employees or directors of the
Borrower or any Subsidiary of the Borrower the proceeds of which are used to
purchase Capital Stock of the Borrower, in an aggregate amount not in excess of
$10,000,000 at any one time outstanding;
(f) prior to the Closing Date, the declaration and payment by the Borrower
of a dividend consisting of Qualified Trust Preferred Stock with a fair market
value that is not greater
85
than is necessary in order to preserve the Borrower's eligibility to elect Real
Estate Investment Trust status with respect to its 1999 taxable year;
(g) prior to the Closing Date, the repurchase, redemption or other
acquisition or retirement for value of up to $130,000,000 in liquidation
preference of the Series B Preferred Stock if the Borrower would, at the time of
such Restricted Payment and after giving pro forma effect thereto as if such
Restricted Payment had been made at the beginning of the applicable four-quarter
period, have been permitted to incur at least $1.00 of additional Indebtedness
without declining below a Consolidated Fixed Charge Coverage Ratio of 2.0 to 1.0
for the Borrower's most recently ended four full fiscal quarters for which
internal financial statements are available immediately preceding the date on
which such Restricted Payment is to made;
(h) repurchases of Capital Stock of the Borrower deemed to occur upon the
exercise of stock options if such Capital Stock represent a portion of the
exercise price thereof;
(i) prior to the Closing Date, the declaration and payment of dividends on
the Borrower's Series A Preferred Stock and Series B Preferred Stock in
accordance with terms of the Series A Preferred Stock and Series B Preferred
Stock as in effect on May 7, 2003;
(j) prior to the Closing Date, the payment of the liquidation preference of
and all accrued and unpaid interest on 100% of issued and outstanding shares of
the Series A Preferred Stock in accordance with the terms of the Series A
Preferred Stock as in effect on the Closing Date and the notice of redemption to
be given by the Borrower on May 7, 2003;
(k) prior to the Closing Date, the redemption pursuant to their terms of
all PMI Notes that remain outstanding on the applicable redemption date after
the Borrower sends notice of such redemption to the holders of such notes,
provided that (i) the Borrower converts all PMI Notes pursuant to their terms
upon the proper request of a holder of such notes and (ii) the fair market value
of the common stock received upon such conversion (measured as of the date the
notice of redemption is given) is not less than one and one half times the
proceeds such holder would receive pursuant to such redemption;
(l) prior to the Closing Date, the repurchase, redemption or other
acquisition or retirement for value of the shares of Series A Preferred Stock
issued and outstanding on May 7, 2003 with the net proceeds from the issuance by
a Qualified Trust of Qualified Trust Preferred Stock; and
(m) Restricted Payments not otherwise permitted in an amount not to exceed
$40,000,000.
The amount of all Restricted Payments (other than cash) shall be the
fair market value on the date of the Restricted Payment of the asset(s) or
securities proposed to be transferred or issued by the Borrower or such
Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair
market value of any assets or securities that are required to be valued by this
Section 10.5 shall be determined by the Borrower's board of directors of the
Borrower whose resolution with respect thereto shall be delivered to the
Administrative Agent. The Borrower's board of directors' determination must be
based upon an opinion or appraisal issued by an accounting, appraisal or
investment banking firm of national standing if the fair market value
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exceeds $15,000,000. Except with respect to any Restricted Payment permitted
pursuant to clauses (a) -- (m) of the immediately preceding paragraph, not later
than ten (10) days following the end of the fiscal quarter in which such
Restricted Payment was made, the Borrower shall deliver to the Administrative
Agent an officer's certificate, in form reasonably satisfactory to the
Administrative Agent, stating that such Restricted Payment is permitted and
setting forth the basis upon which the calculations required by this Section
10.5 were calculated.
SECTION 10.6 Limitations on Exchange and Issuance of Disqualified
Stock. Issue, sell or otherwise dispose of any class or series of Disqualified
Stock.
SECTION 10.7 Transactions with Affiliates. Directly or indirectly (a)
make any loan or advance to, or purchase or assume any note or other obligation
to or from, any of its officers, directors, shareholders or other Affiliates, or
to or from any member of the immediate family of any of its officers, directors,
shareholders or other Affiliates, or subcontract any operations to any of its
Affiliates or (b) enter into, or be a party to, any other transaction not
described in clause (a) above with any of its Affiliates other than:
(i) transactions permitted by Sections 10.1, 10.2, 10.3, 10.4, 10.5,
and 10.6;
(ii) transactions existing on the Closing Date and described on
Schedule 10.7;
(iii) normal compensation and reimbursement of reasonable expenses of
officers and directors;
(iv) transactions between or among the Borrower and/or its Restricted
Subsidiaries;
(v) any issuance of securities, or other payments, awards or grants in
cash, securities or otherwise pursuant to, or the funding of employment
arrangements, stock options and stock ownership plans and other reasonable fees,
compensation, benefits and indemnities paid or entered into by the Borrower or
any of its Restricted Subsidiaries in the ordinary course of business to or with
officers, directors or employees of the Borrower and its Restricted
Subsidiaries; and
(vi) other transactions (including, without limitation, employment
agreements and indemnity agreements) in the ordinary course of business on terms
as favorable as would be obtained by it on a comparable arms-length transaction
with an independent, unrelated third party, as determined in good faith by the
board of directors of the Borrower.
SECTION 10.8 Certain Accounting Changes; Organizational Documents. (a)
Change its Fiscal Year end, or make any change in its accounting treatment and
reporting practices except as required by GAAP or (b) except pursuant to a
transaction permitted by Section 10.3, amend, modify or change its articles of
incorporation (or corporate charter or
87
other similar organizational documents) or bylaws (or other similar documents)
in any manner adverse in any respect to the rights or interests of the Lenders
hereunder.
SECTION 10.9 Amendments; Payments and Prepayments of Material
Indebtedness.
(a) Amend or modify (or permit the modification or amendment of) any of the
terms or provisions of any Material Indebtedness (including, without limitation,
the Senior Unsecured Notes) in any respect that would materially adversely
affect the rights or interests of the Administrative Agent and Lenders
hereunder.
(b) Make or offer to make any optional or voluntary payment, prepayment,
repurchase or redemption of, or otherwise voluntarily or optionally defease, any
Material Indebtedness, or segregate funds for any such payment, prepayment,
repurchase, redemption or defeasance (including, without limitation, (i) by way
of depositing with any trustee with respect thereto money or securities before
due for the purpose of paying when due and (ii) at the maturity thereof), other
than the prepayment of Material Indebtedness permitted hereunder (including,
without limitation, as otherwise permitted pursuant to Section 10.5); provided,
however, that (A) the Borrower may make optional or voluntary payments on any
Senior Unsecured Note so long as the Borrower has demonstrated that the pro
forma Consolidated Total Leverage Ratio is less than 4.75 to 1.00 as of the date
of any such payment and after giving effect thereto and (B) the Borrower and its
Restricted Subsidiaries may make optional or voluntary payments or prepayments
of any intercompany Indebtedness incurred pursuant to Section 10.1(i).
SECTION 10.10 Restrictive Agreements.
(a) Enter into any Indebtedness (other than the Senior Unsecured Notes)
that contains any negative pledge on assets or that restricts, limits or
otherwise encumbers its ability to incur Liens on or with respect to any of its
assets or properties other than the assets or properties securing such
Indebtedness.
(b) Enter into or permit to exist any agreement (other than the Senior
Unsecured Notes) that impairs or limits the ability of any Restricted Subsidiary
of the Borrower to pay dividends to the Borrower.
SECTION 10.11 Nature of Business. Engage in any business other than a
Permitted Business.
SECTION 10.12 Impairment of Security Interests. Take or omit to take
any action that would have the result of materially impairing the security
interests in favor of the Administrative Agent with respect to the Collateral.
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ARTICLE XI
DEFAULT AND REMEDIES
SECTION 11.1 Events of Default. Each of the following shall constitute
an Event of Default, whatever the reason for such event and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment or order of any court or any order, rule or regulation of any
Governmental Authority or otherwise:
(a) Default in Payment of Principal of Loans and Reimbursement Obligations.
The Borrower shall default in any payment of principal of any Loan or
Reimbursement Obligation when and as due (whether at maturity, by reason of
acceleration or otherwise).
(b) Other Payment Default. The Borrower or any other Credit Party shall
default in the payment when and as due (whether at maturity, by reason of
acceleration or otherwise) of interest on any Loan or Reimbursement Obligation
or the payment of any other Obligation, and such default shall continue for a
period of three (3) Business Days.
(c) Misrepresentation. Any representation, warranty, certification or
statement of fact made or deemed made by or on behalf of the Borrower or any
other Credit Party herein, in any other Loan Document or in any document
delivered in connection herewith or therewith that is subject to materiality or
Material Adverse Effect qualifications shall be incorrect or misleading in any
respect when made or deemed made or any representation, warranty, certification
or statement of fact made or deemed made, by or on behalf of the Borrower or any
other Credit Party herein, in any other Loan Document or in any document
delivered in connection herewith or therewith that is not subject to materiality
or Material Adverse Effect qualifications shall be incorrect or misleading in
any material respect when made or deemed made.
(d) Default in Performance of Certain Covenants. The Borrower or any other
Credit Party shall default in the performance or observance of any covenant or
agreement contained in Sections 7.1 or 7.2 or Articles IX or X.
(e) Default in Performance of Other Covenants and Conditions. The Borrower
or any other Credit Party shall default in the performance or observance of any
term, covenant, condition or agreement contained in this Agreement (other than
as specifically provided for otherwise in this Section) or any other Loan
Document and such default shall continue for a period of thirty (30) days after
written notice thereof has been given to the Borrower by the Administrative
Agent.
(f) Hedging Agreement. The Borrower or any other Credit Party shall default
in the performance or observance of any terms, covenant, condition or agreement
(after giving effect to any applicable grace or cure period) under any Hedging
Agreement and such default causes the termination of such Hedging Agreement and
the Termination Value owed by such Credit Party as a result thereof exceeds
$15,000,000.
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(g) Material Indebtedness Cross-Default. The Borrower or any other Credit
Party shall (i) default in the payment of any Material Indebtedness (other than
the Loans or any Reimbursement Obligation) beyond the period of grace if any,
provided in the instrument or agreement under which such Material Indebtedness
was created, or (ii) default in the observance or performance of any other
agreement or condition relating to any Material Indebtedness (other than the
Loans or any Reimbursement Obligation) or contained in any instrument or
agreement evidencing, securing or relating thereto or any other event shall
occur or condition exist, the effect of which default or other event or
condition is to cause, or to permit the holder or holders of such Material
Indebtedness (or a trustee or agent on behalf of such holder or holders) to
cause, with the giving of notice if required, any such Material Indebtedness to
become due prior to its Stated Maturity (any applicable grace period having
expired).
(h) Change in Control. Any Change in Control shall occur.
(i) Voluntary Bankruptcy Proceeding. The Borrower or any Restricted
Subsidiary thereof shall (i) commence a voluntary case under the federal
bankruptcy laws (as now or hereafter in effect), (ii) file a petition seeking to
take advantage of any other laws, domestic or foreign, relating to bankruptcy,
insolvency, reorganization, winding up or composition for adjustment of debts,
(iii) consent to or fail to contest in a timely and appropriate manner any
petition filed against it in an involuntary case under such bankruptcy laws or
other laws, (iv) apply for or consent to, or fail to contest in a timely and
appropriate manner, the appointment of, or the taking of possession by, a
receiver, custodian, trustee, or liquidator of itself or of a substantial part
of its property, domestic or foreign, (v) admit in writing its inability to pay
its debts as they become due, (vi) make a general assignment for the benefit of
creditors, or (vii) take any corporate action for the purpose of authorizing any
of the foregoing.
(j) Involuntary Bankruptcy Proceeding. A case or other proceeding shall be
commenced against the Borrower or any Restricted Subsidiary thereof in any court
of competent jurisdiction seeking (i) relief under the federal bankruptcy laws
(as now or hereafter in effect) or under any other laws, domestic or foreign,
relating to bankruptcy, insolvency, reorganization, winding up or adjustment of
debts, or (ii) the appointment of a trustee, receiver, custodian, liquidator or
the like for the Borrower or any Restricted Subsidiary thereof or for all or any
substantial part of their respective assets, domestic or foreign, and such case
or proceeding shall continue without dismissal or stay for a period of sixty
(60) consecutive days, or an order granting the relief requested in such case or
proceeding (including, but not limited to, an order for relief under such
federal bankruptcy laws) shall be entered.
(k) Failure of Agreements. Any provision of this Agreement or any provision
of any other Loan Document shall for any reason cease to be valid and binding on
the Borrower or any other Credit Party party thereto or any such Person shall so
state in writing, or any Loan Document shall for any reason cease to create a
valid and perfected first priority Lien on, or security interest in, any of the
Collateral purported to be covered thereby (subject to Permitted Liens), in each
case other than in accordance with the express terms hereof or thereof.
(l) Termination Event. The occurrence of any of the following events: (i)
the Borrower or any ERISA Affiliate fails to make full payment when due of all
amounts that, under the provisions of any Pension Plan or Section 412 of the
Code, the Borrower or any ERISA
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Affiliate is required to pay as contributions thereto, (ii) an accumulated
funding deficiency in excess of $15,000,000 occurs or exists, whether or not
waived, with respect to any Pension Plan, (iii) a Termination Event or (iv) the
Borrower or any ERISA Affiliate as employers under one or more Multiemployer
Plans makes a complete or partial withdrawal from any such Multiemployer Plan
and the plan sponsor of such Multiemployer Plans notifies such withdrawing
employer that such employer has incurred a withdrawal liability requiring
payments in an amount exceeding $15,000,000.
(m) Judgment. A judgment or order for the payment of money that causes the
aggregate amount of all such judgments to exceed $15,000,000 in any Fiscal Year
shall be entered against the Borrower or any Credit Party by any court and such
judgment or order shall continue without having been discharged, vacated, stayed
or bonded for a period of thirty (30) days after the entry thereof.
SECTION 11.2 Remedies. Upon the occurrence of an 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, by notice
to the Borrower:
(a) Acceleration; Termination of Facilities. Terminate the Revolving Credit
Commitment and declare the principal of and interest on the Loans and the
Reimbursement Obligations at the time outstanding, and all other amounts owed to
the Lenders and to the Administrative Agent under this Agreement or any of the
other Loan Documents (including, without limitation, all L/C Obligations,
whether or not the beneficiaries of the then outstanding Letters of Credit shall
have presented or shall be entitled to present the documents required
thereunder) and all other Obligations (other than Hedging Obligations), to be
forthwith due and payable, whereupon the same shall immediately become due and
payable without presentment, demand, protest or other notice of any kind, all of
which are expressly waived by each Credit Party, anything in this Agreement or
the other Loan Documents to the contrary notwithstanding, and terminate the
Credit Facility and any right of the Borrower to request borrowings or Letters
of Credit thereunder; provided, that upon the occurrence of an Event of Default
specified in Section 11.1(i) or (j), the Credit Facility shall be automatically
terminated and all Obligations (other than Hedging Obligations) shall
automatically become due and payable without presentment, demand, protest or
other notice of any kind, all of which are expressly waived by each Credit
Party, anything in this Agreement or in any other Loan Document to the contrary
notwithstanding.
(b) Letters of Credit. With respect to all Letters of Credit with respect
to which presentment for honor shall not have occurred at the time of an
acceleration pursuant to the preceding paragraph, the Borrower shall at such
time deposit in a cash collateral account opened by the Administrative Agent an
amount equal to the aggregate then undrawn and unexpired amount of such Letters
of Credit. Amounts held in such cash collateral account shall be applied by the
Administrative Agent to the payment of drafts drawn under such Letters of
Credit, and the unused portion thereof after all such Letters of Credit shall
have expired or been fully drawn upon, if any, shall be applied to repay the
other Obligations on a pro rata basis. After all such Letters of Credit shall
have expired or been fully drawn upon, the Reimbursement Obligation
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shall have been satisfied and all other Obligations shall have been paid in
full, the balance, if any, in such cash collateral account shall be returned to
the Borrower.
(c) Rights of Collection. Exercise on behalf of the Lenders all of its
other rights and remedies under this Agreement, the other Loan Documents and
Applicable Law, in order to satisfy all of the Borrower's Obligations.
SECTION 11.3 Rights and Remedies Cumulative; Non-Waiver; etc. The
enumeration of the rights and remedies of the Administrative Agent and the
Lenders set forth in this Agreement is not intended to be exhaustive and the
exercise by the Administrative Agent and the Lenders of any right or remedy
shall not preclude the exercise of any other rights or remedies, all of which
shall be cumulative, and shall be in addition to any other right or remedy given
hereunder or under the other Loan Documents or that may now or hereafter exist
at law or in equity or by suit or otherwise. No delay or failure to take action
on the part of the Administrative Agent or any Lender in exercising any right,
power or privilege shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right, power or privilege preclude any other or
further exercise thereof or the exercise of any other right, power or privilege
or shall be construed to be a waiver of any Event of Default. No course of
dealing between the Borrower, the Administrative Agent and the Lenders or their
respective agents or employees shall be effective to change, modify or discharge
any provision of this Agreement or any of the other Loan Documents or to
constitute a waiver of any Event of Default.
SECTION 11.4 Crediting of Payments and Proceeds. In the event that the
Borrower shall fail to pay any of the Obligations when due and the Obligations
have been accelerated pursuant to Section 11.2, all payments received by the
Lenders upon the Obligations and all net proceeds from the enforcement of the
Obligations shall be applied:
First, to payment of that portion of the Obligations constituting
fees, indemnities, expenses and other amounts, including attorney fees, payable
to the Administrative Agent in its capacity as such and the applicable Issuing
Lender in its capacity as such (ratably among the Administrative Agent and the
Issuing Lender in proportion to the respective amounts described in this clause
First payable to them);
Second, to payment of that portion of the Obligations constituting
fees, indemnities and other amounts (other than principal and interest) payable
to the Lenders, including attorney fees (ratably among the Lenders in proportion
to the respective amounts described in this clause Second payable to them);
Third, to payment of that portion of the Obligations constituting
accrued and unpaid interest on the Loans and Reimbursement Obligations and any
Hedging Obligations (including any termination payments and any accrued and
unpaid interest thereon) (ratably among the Lenders in proportion to the
respective amounts described in this clause Third payable to them);
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Fourth, to payment of that portion of the Obligations constituting
unpaid principal of the Loans and Reimbursement Obligations (ratably among the
Lenders in proportion to the respective amounts described in this clause Fourth
held by them);
Fifth, to the Administrative Agent for the account of the applicable
Issuing Lender, to cash collateralize any L/C Obligations then outstanding; and
Last, the balance, if any, after all of the Obligations have been
indefeasibly paid in full, to the Borrower or as otherwise required by Law.
SECTION 11.5 Administrative Agent May File Proofs of Claim. In case of
the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to any Credit Party, the Administrative Agent (irrespective
of whether the principal of any Loan or L/C Obligation shall then be due and
payable as herein expressed or by declaration or otherwise and irrespective of
whether the Administrative Agent shall have made any demand on the Borrower)
shall be entitled and empowered, by intervention in such proceeding or
otherwise:
(a) to file and prove a claim for the whole amount of the principal and
interest owing and unpaid in respect of the Loans, L/C Obligations and all other
Obligations that are owing and unpaid and to file such other documents as may be
necessary or advisable in order to have the claims of the Lenders and the
Administrative Agent (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Lenders and the Administrative Agent
and their respective agents and counsel and all other amounts due the Lenders
and the Administrative Agent under Sections 3.3, 4.3 and 13.3) allowed in such
judicial proceeding; and
(b) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same; and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Lender to make such
payments to the Administrative Agent and, in the event that the Administrative
Agent shall consent to the making of such payments directly to the Lenders, to
pay to the Administrative Agent any amount due for the reasonable compensation,
expenses, disbursements and advances of the Administrative Agent and its agents
and counsel, and any other amounts due the Administrative Agent under Sections
4.3 and 13.3.
Nothing contained herein shall be deemed to authorize the Administrative Agent
to authorize or consent to or accept or adopt on behalf of any Lender any plan
of reorganization, arrangement, adjustment or composition affecting the
Obligations or the rights of any Lender or to authorize the Administrative Agent
to vote in respect of the claim of any Lender in any such proceeding.
ARTICLE XII
THE ADMINISTRATIVE AGENT
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SECTION 12.1 Appointment and Authority. Each of the Lenders and each
Issuing Lender hereby irrevocably appoints Wachovia 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 or
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 neither the
Borrower nor any Restricted Subsidiary thereof shall have rights as a third
party beneficiary of any of such provisions.
SECTION 12.2 Rights as a Lender. 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 "Lender" or "Lenders" 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 business with the Borrower or any
Restricted 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.
SECTION 12.3 Exculpatory Provisions. 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:
(a) shall not be subject to any fiduciary or other implied duties,
regardless of whether a Default has occurred and is continuing;
(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
(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) 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 Section 13.2 and Section 11.2) or (ii) in the
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absence of its own gross negligence or willful misconduct as determined by a
court of competent jurisdiction by final nonappealable judgment. 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 the Issuing Lenders.
The Administrative Agent shall not be responsible for or have any duty to
ascertain or inquire into (i) any statement, warranty or representation made in
or in connection with this Agreement or any other Loan Document, (ii) the
contents of any certificate, report or other document delivered hereunder or
thereunder or in connection herewith or therewith, (iii) 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) the validity,
enforceability, effectiveness or genuineness of this Agreement, any other Loan
Document or any other agreement, instrument or document or (v) the satisfaction
of any condition set forth in Article V or elsewhere herein, other than to
confirm receipt of items expressly required to be delivered to the
Administrative Agent.
SECTION 12.4 Reliance by the Administrative Agent. 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) 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 of a Letter of
Credit, that by its terms must be fulfilled to the satisfaction of a Lender or
the applicable 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 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.
SECTION 12.5 Delegation of Duties. 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.
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SECTION 12.6 Resignation of Administrative Agent.
(a) 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, or an Affiliate of any such bank with an
office in the United States. If no such successor shall have been so appointed
by the Required Lenders and shall have accepted such appointment within 30 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) the retiring Administrative Agent shall be discharged from its
duties and obligations hereunder and under the other Loan Documents (except that
in the case of any collateral security held by the Administrative Agent on
behalf of the Lenders or the Issuing Lenders under any of the Loan Documents,
the retiring Administrative Agent shall continue to hold such collateral
security until such time as a successor Administrative Agent is appointed) and
(2) 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 successor's 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
Agent's resignation hereunder and under the other Loan Documents, the provisions
of this Article and Section 13.2 shall continue in effect for the benefit of
such retiring Administrative Agent, its sub-agents and their respective Related
Parties in respect of any actions taken or omitted to be taken by any of them
while the retiring Administrative Agent was acting as Administrative Agent.
(b) Any resignation by Wachovia as Administrative Agent pursuant to this
Section shall also constitute its resignation as an Issuing Lender and Swingline
Lender. Upon the acceptance of a successor's appointment as Administrative Agent
hereunder, (a) such successor shall succeed to and become vested with all of the
rights, powers, privileges and duties of as an Issuing Lender, if applicable,
and as Swingline Lender, (b) the predecessor Issuing Lender and Swingline Lender
shall be discharged from all of their respective duties and obligations
hereunder or under the other Loan Documents, and (c) the successor Issuing
Lender shall issue letters of credit in substitution for the Letters of Credit,
if any, outstanding at the time of such succession or make other arrangement
satisfactory to Wachovia, as a retiring Issuing Lender to effectively assume the
obligations of the retiring Issuing Lender with respect to Letters of Credit
issued thereby.
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SECTION 12.7 Non-Reliance on Administrative Agent and Other Lenders.
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.
SECTION 12.8 No Other Duties, etc. Anything herein to the contrary
notwithstanding, none of the syndication agents, documentation agents,
co-agents, book manager, lead manager, arranger, lead arranger or co-arranger
listed on the cover page or signature pages hereof shall have any powers, duties
or responsibilities under this Agreement or any of the other Loan Documents,
except in its capacity, as applicable, as the Administrative Agent, a Lender or
an Issuing Lender hereunder.
SECTION 12.9 Collateral and Guaranty Matters. The Lenders irrevocably
authorize the Administrative Agent, at its option and in its discretion,
(a) to release any Lien on any Collateral granted to or held by the
Administrative Agent under any Loan Document (i) upon repayment of the
outstanding principal of and all accrued interest on the Loans, payment of all
outstanding fees and expenses hereunder, the termination of the Revolving Credit
Commitment and the expiration or termination of all Letters of Credit, (ii) that
is sold or to be sold as part of or in connection with any sale, disposition or
other transaction permitted hereunder or under any other Loan Document, or (iii)
subject to Section 13.2, if approved, authorized or ratified in writing by the
Required Lenders;
(b) to subordinate or release any Lien on any Collateral granted to or held
by the Administrative Agent under any Loan Document to the holder of any
Permitted Lien (except Permitted Liens permitted solely by Section 10.2(o)); and
(c) to release any Subsidiary Guarantor from its obligations under the
Subsidiary Guaranty Agreement, the Collateral Agreement and any other Security
Documents if such Person ceases to be a Restricted Subsidiary as a result of a
transaction permitted hereunder.
Upon request by the Administrative Agent at any time, the Required Lenders will
confirm in writing the Administrative Agent's authority to release or
subordinate its interest in particular types or items of property, or to release
any Guarantor from its obligations under the Guaranty Agreement pursuant to this
Section.
ARTICLE XIII
MISCELLANEOUS
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SECTION 13.1 Notices.
(a) Method of Communication. Except as otherwise provided in this
Agreement, all notices and communications hereunder shall be in writing (for
purposes hereof, the term "writing" shall include information in electronic
format such as electronic mail and internet web pages), or by telephone
subsequently confirmed in writing. Any notice shall be effective if delivered by
hand delivery or sent via electronic mail, posting on an internet web page,
telecopy, recognized overnight courier service or certified mail, return receipt
requested, and shall be presumed to be received by a party hereto (i) on the
date of delivery if delivered by hand or sent by electronic mail, posting on an
internet web page or telecopy, (ii) on the next Business Day if sent by
recognized overnight courier service and (iii) on the third Business Day
following the date sent by certified mail, return receipt requested. A
telephonic notice to the Administrative Agent as understood by the
Administrative Agent will be deemed to be the controlling and proper notice in
the event of a discrepancy with or failure to receive a confirming written
notice.
(b) Addresses for Notices. Notices to any party shall be sent to it at the
following addresses, or any other address as to which all the other parties are
notified in writing.
If to the Borrower: Corrections Corporation of America
00 Xxxxxx Xxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Chief Financial Officer
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
With copies to: Bass, Xxxxx & Xxxx PLC
000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxx X. Xxxx, Xx.
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
If to Wachovia as Wachovia Bank, National Association
Administrative Agent: Charlotte Plaza, CP-8
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Syndication Agency Services
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
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With copies to: One Wachovia Center
Mail Code: NC-5562
000 Xxxxx Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxx Xxxxx
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
If to any Lender: To the address set forth on the Register
(c) Administrative Agent's Office. The Administrative Agent hereby
designates its office located at the address set forth above, or any subsequent
office that shall have been specified for such purpose by written notice to the
Borrower and Lenders, as the Administrative Agent's Office referred to herein,
to which payments due are to be made and at which Loans will be disbursed and
Letters of Credit requested.
SECTION 13.2 Amendments, Waivers and Consents. Except as set forth
below or as specifically provided in any Loan Document, any term, covenant,
agreement or condition of this Agreement or any of the other Loan Documents may
be amended or waived by the Lenders, and any consent given by the Lenders, if,
but only if, such amendment, waiver or consent is in writing signed by the
Required Lenders (or by the Administrative Agent with the consent of the
Required Lenders) and delivered to the Administrative Agent and, in the case of
an amendment, signed by the Borrower; provided, that no amendment, waiver or
consent shall:
(a) waive any condition set forth in Section 5.2 without the written
consent of each Lender directly affected thereby;
(b) extend or increase the Revolving Credit Commitment of any Lender (or
reinstate any Revolving Credit Commitment terminated pursuant to Section 11.2)
or the amount of Loans of any Lender without the written consent of such Lender;
(c) postpone any date fixed by this Agreement or any other Loan Document
for any payment of principal, interest, fees or other amounts due to the Lenders
(or any of them) hereunder or under any other Loan Document without the written
consent of each Lender directly affected thereby;
(d) reduce the principal of, or the rate of interest specified herein on,
any Loan or Reimbursement Obligation, or (subject to clause (iv) of the second
proviso to this Section) any fees or other amounts payable hereunder or under
any other Loan Document, or change the manner of computation of any financial
ratio (including any change in any applicable defined term) used in determining
the Applicable Margin that would result in a reduction of any interest rate on
any Loan or any fee payable hereunder without the written consent of each Lender
directly affected thereby; provided that only the consent of the Required
Lenders shall be necessary (i) to waive any obligation of the Borrower to pay
interest at the rate set forth in Section 4.1(c) during the continuance of an
Event of Default, or (ii) to amend any financial covenant hereunder (or any
defined term used therein) even if the effect of such amendment
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would be to reduce the rate of interest on any Loan or L/C Borrowing or to
reduce any fee payable hereunder;
(e) change Section 4.4 or Section 11.4 in a manner that would alter the pro
rata sharing of payments required thereby without the written consent of each
Lender directly affected thereby;
(f) change any provision of this Section or the definition of "Required
Lenders" or any other provision hereof specifying the number or percentage of
Lenders required to amend, waive or otherwise modify any rights hereunder or
make any determination or grant any consent hereunder, without the written
consent of each Lender directly affected thereby;
(g) release all of the Guarantors or release Guarantors comprising
substantially all of the credit support for the Obligations, in either case,
from the Guaranty Agreement (other than as authorized in Section 12.9), without
the written consent of each Lender; or
(h) release all or a material portion of the Collateral or release any
Security Document (other than as authorized in Section 12.9 or as otherwise
specifically permitted or contemplated in this Agreement or the applicable
Security Document) without the written consent of each Lender;
provided further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the applicable Issuing Lender in addition to the Lenders
required above, affect the rights or duties of such Issuing Lender under this
Agreement or any Letter of Credit Application relating to any Letter of Credit
issued or to be issued by it; (ii) no amendment, waiver or consent shall, unless
in writing and signed by the Swingline Lender in addition to the Lenders
required above, affect the rights or duties of the Swingline Lender as such
under this Agreement; (iii) no amendment, waiver or consent shall, unless in
writing and signed by the Administrative Agent in addition to the Lenders
required above, affect the rights or duties of the Administrative Agent as such
under this Agreement or any other Loan Document; and (iv) the Fee Letter may be
amended, or rights or privileges thereunder waived, in a writing executed only
by the parties thereto. Notwithstanding anything to the contrary herein, no
Defaulting Lender shall have any right to approve or disapprove any amendment,
waiver or consent hereunder, except that the Revolving Credit Commitment of such
Lender may not be increased or extended without the consent of such Lender.
In addition, notwithstanding anything to the contrary herein, each Lender
hereby authorizes the Administrative Agent on its behalf, and without its
further consent, to enter into amendments to this Agreement and the other Loan
Documents as the Administrative Agent may reasonably deem appropriate in order
to effectuate any increase in the Revolving Credit Commitment pursuant to
Section 2.7 or any Incremental Term Loans pursuant to Section 2.8, including,
without limitation, amendments to permit such increases in the Revolving Credit
Commitment and any Incremental Term Loans to share ratably in the benefits of
this Agreement and the other Loan Documents and to include appropriately any
Lenders under such increases in the Revolving Credit Commitment and any
Incremental Term Loans in any determination of Required Lenders; provided that
no such amendment shall adversely affect in any material respect the rights of
any Lender, in each case, without the written consent of such Lender.
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SECTION 13.3 Expenses; Indemnity.
(a) Costs and Expenses. The Borrower and any other Credit Party, jointly
and severally, shall pay (i) 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) all reasonable
out-of-pocket expenses incurred by the Issuing Lenders in connection with the
issuance, amendment, renewal or extension of any Letter of Credit or any demand
for payment thereunder and (iii) all out-of-pocket expenses incurred by the
Administrative Agent, each Lender and the Issuing Lenders in connection with the
enforcement or preservation of any rights (including, without limitation, all
such out-of-pocket expenses incurred during any workout, restructuring or
related negotiations in respect of any Loans or Letters of Credit) (A) in
connection with this Agreement and the other Loan Documents, including its
rights under this Section, or (B) in connection with the Loans made or Letters
of Credit issued hereunder, including, without limitation, the fees and
disbursements of counsel to the Administrative Agent, each Lender and the
Issuing Lenders; provided that, so long as no Default or Event of Default
exists, such reimbursement for legal fees and disbursements shall be limited to
the fees and disbursements of one primary counsel designated by the
Administrative Agent plus the fees and disbursements of any local and specialist
counsel engaged by the Administrative Agent.
(b) Indemnification by the Borrower. The Borrower shall indemnify the
Administrative Agent (and any sub-agent thereof), each Lender and each Issuing
Lender, and each Related Party of any of the foregoing Persons (each such Person
being called an "Indemnitee") against, and hold each Indemnitee harmless from,
any and all losses, claims (including, without limitation, any Environmental
Claims or civil penalties or fines assessed by OFAC), damages, liabilities and
related expenses (including the fees, charges and disbursements of any counsel
for any Indemnitee), incurred by any Indemnitee or asserted against any
Indemnitee by any third party or by the Borrower or any other Credit Party
arising out of, in connection with, or as a result of (i) 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) any Loan or Letter of
Credit or the use or proposed use of the proceeds therefrom (including any
refusal by the applicable 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), (iii) 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 Claim related in any way to the Borrower or any of its
Subsidiaries, (iv) any actual or prospective claim, litigation, investigation or
proceeding relating to any of the foregoing, whether based on contract, tort or
any other theory, and regardless of whether any Indemnitee is a party thereto,
or (v) any claim (including, without limitation, any Environmental Claims or
civil penalties or fines assessed by
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the U.S. Department of the Treasury's Office of Foreign Assets Control),
investigation, litigation or other proceeding (whether or not the Administrative
Agent or any Lender is a party thereto) and the prosecution and defense thereof,
arising out of or in any way connected with the Loans, this Agreement, any other
Loan Document or any documents contemplated by or referred to herein or therein
or the transactions contemplated hereby or thereby, including without
limitation, reasonable attorneys and consultant's fees, 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) 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) result from a claim brought by the Borrower or any other Credit Party
against an Indemnitee for breach of such Indemnitee's obligations hereunder or
under any other Loan Document, if the Borrower or such Credit Party has obtained
a final and nonappealable judgment in its favor on such claim as determined by a
court of competent jurisdiction.
(c) Reimbursement by Lenders. To the extent that the Borrower for any
reason fails to indefeasibly pay any amount required under clause (a) or (b) of
this Section to be paid by it to the Administrative Agent (or any sub-agent
thereof), the applicable Issuing 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), the applicable Issuing Lender or such Related Party, as the
case may be, such Lender's Applicable Margin (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) or the
applicable Issuing 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) or applicable Issuing Lender in connection with such capacity. The
obligations of the Lenders under this clause (c) are subject to the provisions
of Section 4.7.
(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, the
transactions contemplated hereby or thereby, any Loan or Letter of Credit or the
use of the proceeds thereof. No Indemnitee referred to in clause (b) above shall
be liable for any damages arising from the use by unintended 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.
(e) Payments. All amounts due under this Section shall be payable promptly
after demand therefor.
SECTION 13.4 Right of Set-off. If an Event of Default shall have
occurred and be continuing, each Lender, each Issuing Lender, the Swingline
Lender and each of their respective Affiliates is hereby authorized at any
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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, the Swingline Lender or any such Affiliate to or for the credit
or the account of the Borrower or any other Credit Party against any and all of
the obligations of the Borrower or such Credit Party now or hereafter existing
under this Agreement or any other Loan Document to such Lender, such Issuing
Lender or the Swingline Lender, irrespective of whether or not such Lender, such
Issuing Lender or the Swingline Lender shall have made any demand under this
Agreement or any other Loan Document and although such obligations of the
Borrower or such Credit Party may be contingent or unmatured or are owed to a
branch or office of such Lender, such Issuing Lender or the Swingline Lender
different from the branch or office holding such deposit or obligated on such
indebtedness. The rights of each Lender, each Issuing Lender, the Swingline
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, the Swingline Lender or their respective Affiliates may
have. Each Lender, each Issuing Lender and the Swingline 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.
SECTION 13.5 Governing Law.
(a) Governing Law. This Agreement and the other Loan Documents, unless
expressly set forth therein, shall be governed by, and construed in accordance
with, the law of the State of New York, without reference to the conflicts or
choice of law principles thereof, other than such principles that are stated in
Section 5-1401 and 5-1402 of the General Obligations Law of the State of New
York.
(b) Submission to Jurisdiction. The Borrower and each other Credit Party
irrevocably and unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of the courts of the State of New York sitting in the
Borough of Manhattan and of the United States District Court of the Borough of
Manhattan, 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 Lender or any Issuing Lender may otherwise have to
bring any action or proceeding relating to this Agreement or any other Loan
Document against the Borrower or any other Credit Party or its properties in the
courts of any jurisdiction.
(c) Waiver of Venue. The Borrower and each other Credit Party irrevocably
and unconditionally waives, to the fullest extent permitted by Applicable Law,
any objection that it
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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
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.
(d) Service of Process. Each party hereto irrevocably consents to service
of process in the manner provided for notices in Section 13.1. Nothing in this
Agreement will affect the right of any party hereto to serve process in any
other manner permitted by Applicable Law.
SECTION 13.6 Waiver of Jury Trial.
(a) 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) 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) 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.
SECTION 13.7 Reversal of Payments. To the extent the Borrower makes a
payment or payments to the Administrative Agent for the ratable benefit of the
Lenders or the Administrative Agent receives any payment or proceeds of the
Collateral, which payments or proceeds or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside and/or
required to be repaid to a trustee, receiver or any other party under any
bankruptcy law, state or federal law, common law or equitable cause, then, to
the extent of such payment or proceeds repaid, the Obligations or part thereof
intended to be satisfied shall be revived and continued in full force and effect
as if such payment or proceeds had not been received by the Administrative
Agent.
SECTION 13.8 Injunctive Relief: Punitive Damages.
(a) The Borrower recognizes that, in the event the Borrower fails to
perform, observe or discharge any of its obligations or liabilities under this
Agreement, any remedy of law may prove to be inadequate relief to the Lenders.
Therefore, the Borrower agrees that the Lenders, at the Lenders' option, shall
be entitled to temporary and permanent injunctive relief in any such
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case without the necessity of proving actual damages, to the extent permitted by
Applicable Law and principles of equity.
(b) To the extent permitted by Applicable Law, the Administrative Agent,
the Lenders and the Borrower (on behalf of itself and the Credit Parties) hereby
agree that no such Person shall have a remedy of punitive or exemplary damages
against any other party to a Loan Document and each such Person hereby waives
any right or claim to punitive or exemplary damages that they may now have or
may arise in the future in connection with any Dispute, whether such Dispute is
resolved through arbitration or judicially.
SECTION 13.9 Accounting Matters. If at any time any change in GAAP
would affect the computation of any financial ratio or requirement set forth in
any Loan Document, and either the Borrower or the Required Lenders shall so
request, the Administrative Agent, the Lenders and the Borrower shall negotiate
in good faith to amend such ratio or requirement to preserve the original intent
thereof in light of such change in GAAP (subject to the approval of the Required
Lenders); provided that, until so amended, (i) such ratio or requirement shall
continue to be computed in accordance with GAAP prior to such change therein and
(ii) the Borrower shall provide to the Administrative Agent and the Lenders
financial statements and other documents required under this Agreement or as
reasonably requested hereunder setting forth a reconciliation between
calculations of such ratio or requirement made before and after giving effect to
such change in GAAP.
SECTION 13.10 Successors and Assigns; Participations.
(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 neither the
Borrower nor any other Credit Party may 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) to an Eligible
Assignee in accordance with the provisions of paragraph (b) of this Section,
(ii) by way of participation in accordance with the provisions of paragraph (d)
of this Section or (iii) 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, 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 and the Lenders) any legal or
equitable right, remedy or claim under or by reason of this Agreement.
(b) Assignments by Lenders. Any Lender may at any time assign to one or
more Eligible Assignees all or a portion of its rights and obligations under
this Agreement (including all or a portion of its Revolving Credit Commitment
and the Loans at the time owing to it); provided that
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(i) except in the case of an assignment of the entire remaining amount
of the assigning Lender's Revolving Credit Commitment and the Loans at the time
owing to it or in the case of an assignment to a Lender or an Affiliate of a
Lender or an Approved Fund with respect to a Lender, the aggregate amount of the
Revolving Credit Commitment (which for this purpose includes Loans outstanding
thereunder) or, if the applicable Revolving Credit 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 "Trade Date" is specified in the Assignment and Assumption, as of
the Trade Date) shall not be less than $5,000,000, unless (A) such assignment is
made to an existing Lender, to an Affiliate thereof, or (B) each of the
Administrative Agent and, so long as no Default or Event of Default has occurred
and is continuing, the Borrower otherwise consent (each such consent not to be
unreasonably withheld or delayed); provided that the Borrower shall be deemed to
have given its consent five (5) Business Days after the date written notice
thereof has been delivered to it by the assigning Lender (through the
Administrative Agent) unless such consent is expressly refused by the Borrower
prior to the end of such fifth (5th) Business Day;
(ii) each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender's rights and obligations under
this Agreement with respect to the Loan or the Revolving Credit Commitment
assigned;
(iii) any assignment of a Revolving Credit Commitment must be approved
by the Administrative Agent unless the Person that is the proposed assignee is
itself a Lender with a Revolving Credit Commitment (whether or not the proposed
assignee would otherwise qualify as an Eligible Assignee); and
(iv) 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 for each assignment, and the Eligible Assignee, if
it shall not be a Lender, shall deliver to the Administrative Agent an
Administrative Questionnaire.
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 Eligible 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 Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto) but shall continue
to be entitled to the benefits of Sections 4.8, 4.9, 4.10, 4.11 and 13.3 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.
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(c) Register. The Administrative Agent, acting solely for this purpose as
an agent of the Borrower, shall maintain at one of its offices in Charlotte,
North Carolina, 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
Revolving Credit Commitment of, and principal amounts of the Loans owing to,
each Lender pursuant to the terms hereof from time to time (the "Register"). 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 and any Lender, at
any reasonable time and from time to time upon reasonable prior notice.
(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 Borrower's
Affiliates or Subsidiaries) (each, a "Participant") in all or a portion of such
Lender's rights and/or obligations under this Agreement (including all or a
portion of its Revolving Credit Commitment and/or the Loans owing to it);
provided that (i) such Lender's rights and obligations under this Agreement
shall remain unchanged, (ii) such Lender shall remain solely responsible to the
other parties hereto for the exercise of such rights and the performance of such
obligations and (iii) the Borrower, the Administrative Agent and the other
Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement.
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 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 or modification described in Section
13.2 that directly affects such Participant. Subject to paragraph (e) of this
Section, the Borrower agrees that each Participant shall be entitled to the
benefits of Sections 4.8, 4.9, 4.10 and 4.11 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 Section 13.4 as though it were a Lender, provided
such Participant agrees to be subject to Section 4.6 as though it were a Lender.
(e) Limitations upon Participant Rights. A Participant shall not be
entitled to receive any greater payment under Sections 4.10 and 4.11 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 Borrower's prior written consent. A
Participant that would be a Foreign Lender if it were a Lender shall not be
entitled to the benefits of Section 4.11 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 Section 4.11(e) as though it were a
Lender.
(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 without limitation 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
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obligations hereunder or substitute any such pledgee or assignee for such Lender
as a party hereto.
SECTION 13.11 Confidentiality. Each of the Administrative Agent and
the Lenders agrees to maintain the confidentiality of the Information (as
defined below), except that Information may be disclosed (a) to its and its
Affiliates' directors, officers, employees and agents, including accountants,
legal counsel and other advisors (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), (b) to the
extent requested by, or required to be disclosed to, any rating agency, or
regulatory or similar authority (including any self-regulatory authority, such
as the National Association of Insurance Commissioners), (c) to the extent
required by Applicable Laws or regulations or by any subpoena or similar legal
process, (d) to any other party hereto, (e) in connection with the exercise of
any remedies under this Agreement or under any other Loan Document (or any
Hedging Agreement with a Lender or the Administrative Agent) or any action or
proceeding relating to this Agreement or any other Loan Document (or any Hedging
Agreement with a Lender or the Administrative Agent) or the enforcement of
rights hereunder or thereunder, (f) subject to an agreement containing
provisions substantially the same as those of this Section, to (i) any
purchasing Lender, proposed purchasing Lender, Participant or proposed
Participant, or (ii) any actual or prospective counterparty (or its advisors) to
any swap or derivative transaction relating to the Borrower and its obligations,
(g) with the consent of the Borrower, (h) to Gold Sheets and other similar bank
trade publications, such information to consist of deal terms and other
information customarily found in such publications, or (i) to the extent such
Information (x) becomes publicly available other than as a result of a breach of
this Section or (y) becomes available to the Administrative Agent or any Lender
on a nonconfidential basis from a source other than the Borrower or (j) to
governmental regulatory authorities in connection with any regulatory
examination of the Administrative Agent or any Lender or in accordance with the
Administrative Agent's or any Lender's regulatory compliance policy if the
Administrative Agent or such Lender deems necessary for the mitigation of claims
by those authorities against the Administrative Agent or such Lender or any of
its subsidiaries or affiliates. For purposes of this Section, "Information"
means all information received from any Credit Party relating to any Credit
Party or any of their respective businesses, other than any such information
that is available to the Administrative Agent or any Lender on a nonconfidential
basis prior to disclosure by any Credit Party; provided that, in the case of
information received from a Credit Party 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
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.
SECTION 13.12 Performance of Duties. Each of the Credit Party's
obligations under this Agreement and each of the other Loan Documents shall be
performed by such Credit Party at its sole cost and expense.
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SECTION 13.13 All Powers Coupled with Interest. All powers of attorney
and other authorizations granted to the Lenders, the Administrative Agent and
any Persons designated by the Administrative Agent or any Lender pursuant to any
provisions of this Agreement or any of the other Loan Documents shall be deemed
coupled with an interest and shall be irrevocable so long as any of the
Obligations remain unpaid or unsatisfied, any of the Revolving Credit Commitment
remains in effect or the Credit Facility has not been terminated.
SECTION 13.14 Survival of Indemnities. Notwithstanding any termination
of this Agreement, the indemnities to which the Administrative Agent and the
Lenders are entitled under the provisions of this Article XIII and any other
provision of this Agreement and the other Loan Documents shall continue in full
force and effect and shall protect the Administrative Agent and the Lenders
against events arising after such termination as well as before.
SECTION 13.15 Titles and Captions. Titles and captions of Articles,
Sections and subsections in, and the table of contents of, this Agreement are
for convenience only, and neither limit nor amplify the provisions of this
Agreement.
SECTION 13.16 Severability of Provisions. Any provision of this
Agreement or any other Loan Document 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.
SECTION 13.17 Counterparts. This Agreement may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and shall be
binding upon all parties, their successors and assigns, and all of which taken
together shall constitute one and the same agreement.
SECTION 13.18 Integration. This Agreement, together with the other
Loan Documents, comprises the complete and integrated agreement of the parties
on the subject matter hereof and thereof and supersedes all prior agreements,
written or oral, on such subject matter. In the event of any conflict between
the provisions of this Agreement and those of any other Loan Document, the
provisions of this Agreement shall control; provided that the inclusion of
supplemental rights or remedies in favor of the Administrative Agent or the
Lenders in any other Loan Document shall not be deemed a conflict with this
Agreement. Each Loan Document was drafted with the joint participation of
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the respective parties thereto and shall be construed neither against nor in
favor of any party, but rather in accordance with the fair meaning thereof.
SECTION 13.19 Term of Agreement. This Agreement shall remain in effect
from the Closing Date through and including the date upon which all Obligations
arising hereunder or under any other Loan Document (except for contingent
Obligations that expressly survive the termination of this Agreement or any
other Loan Document) shall have been indefeasibly and irrevocably paid and
satisfied in full and the Revolving Credit Commitment has been terminated. No
termination of this Agreement shall affect the rights and obligations of the
parties hereto arising prior to such termination or in respect of any provision
of this Agreement which survives such termination.
SECTION 13.20 Advice of Counsel, No Strict Construction. Each of the
parties represents to each other party hereto that it has discussed this
Agreement with its counsel. The parties hereto have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the parties hereto and no presumption or burden of
proof shall arise favoring or disfavoring any party by virtue of the authorship
of any provisions of this Agreement.
SECTION 13.21 USA Patriot Act. The Administrative Agent and 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))
(the "Act"), it is required to obtain, verify and record information that
identifies the Borrower and Guarantors, which information includes the name and
address of each Borrower and Guarantor and other information that will allow
such Lender to identify such Borrower or Guarantor in accordance with the Act.
SECTION 13.22 Inconsistencies with Other Documents; Independent Effect
of Covenants.
(a) In the event there is a conflict or inconsistency between this
Agreement and any other Loan Document, the terms of this Agreement shall
control; provided that any provision of the Security Documents that imposes
additional burdens on the Borrower or its Restricted Subsidiaries or further
restricts the rights of the Borrower or its Restricted Subsidiaries or gives the
Administrative Agent or Lenders additional rights shall not be deemed to be in
conflict or inconsistent with this Agreement and shall be given full force and
effect.
(b) The Borrower expressly acknowledges and agrees that each covenant
contained in Articles VIII, IX, or X hereof shall be given independent effect.
Accordingly, the Borrower shall not engage in any transaction or other act
otherwise permitted under any covenant contained in Articles VIII, IX, or X if,
before or after giving effect to such transaction or act, the Borrower shall or
would be in breach of any other covenant contained in Articles VIII, IX, or X.
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[Signature pages to follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed under seal by their duly authorized officers, all as of the day and
year first written above.
CORRECTIONS CORPORATION OF AMERICA,
as Borrower
By: /s/ Xxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Vice President, Treasurer
[Credit Agreement - Corrections Corporation of America]
AGENTS AND LENDERS:
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Administrative Agent, Swingline
Lender, Issuing Lender and Lender
By: /s/ Xxxxxx Xxxxx
------------------------------------
Name: Xxxxxx Xxxxx
Title: Director
[Credit Agreement - Corrections Corporation of America]
ADDITIONAL LENDERS:
BANK OF AMERICA, N.A., as a Lender
By: /s/ Xxxxxxx X. Xxxx
------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Senior Vice President
[Credit Agreement - Corrections Corporation of America]
XXXXXX COMMERCIAL PAPER INC., as a
Lender
By: /s/ Xxxxxx Xxxxx
------------------------------------
Name: Xxxxxx Xxxxx
Title: Chief Credit Officer
[Credit Agreement - Corrections Corporation of America]
HSBC BANK USA, NATIONAL ASSOCIATION, as
a Lender
By: /s/ Xxxxxxxxx X. Xxxx
------------------------------------
Name: Xxxxxxxxx X. Xxxx
Title: Vice President
[Credit Agreement - Corrections Corporation of America]
SUNTRUST BANK, as a Lender
By: /s/ Xxxxx X. Xxxxx, Xx.
------------------------------------
Name: Xxxxx X. Xxxxx, Xx.
Title: Director
[Credit Agreement - Corrections Corporation of America]
JPMORGAN CHASE BANK, N.A., as a Lender
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
[Credit Agreement - Corrections Corporation of America]
EXHIBIT A-1
to
Credit Agreement
dated as of February 3, 2006
by and among
Corrections Corporation of America,
as Borrower,
the Lenders party thereto,
as Lenders,
and
Wachovia Bank, National Association,
as Administrative Agent
FORM OF REVOLVING CREDIT NOTE
REVOLVING CREDIT NOTE
$__________ February [____], 2006
FOR VALUE RECEIVED, the undersigned, CORRECTIONS CORPORATION OF AMERICA, a
Maryland corporation (the "Borrower"), promises to pay to the order of
_______________ (the "Lender"), at the place and times provided in the Credit
Agreement referred to below, the principal sum of _______________ DOLLARS
($__________) or, if less, the principal amount of all Revolving Credit Loans
made by the Lender from time to time pursuant to that certain Credit Agreement,
dated as of February 3, 2006 (as amended, restated, supplemented or otherwise
modified from time to time, the "Credit Agreement") by and among the Borrower,
the Lenders who are or may become a party thereto, and Wachovia Bank, National
Association, as Administrative Agent (the "Administrative Agent"). Capitalized
terms used herein and not defined herein shall have the meanings assigned
thereto in the Credit Agreement.
The unpaid principal amount of this Revolving Credit Note from time to time
outstanding is payable as provided in the Credit Agreement and shall bear
interest as provided in Section 4.1 of the Credit Agreement. All payments of
principal and interest on this Revolving Credit Note shall be payable in lawful
currency of the United States of America in immediately available funds as
provided in the Credit Agreement.
This Revolving Credit Note is entitled to the benefits of, and evidences
Obligations incurred under, the Credit Agreement, to which reference is made for
a description of the security for this Revolving Credit Note and for a statement
of the terms and conditions on which the Borrower is permitted and required to
make prepayments and repayments of principal of the Obligations evidenced by
this Revolving Credit Note and on which such Obligations may be declared to be
immediately due and payable.
THIS REVOLVING CREDIT NOTE SHALL BE GOVERNED BY, CONSTRUED AND ENFORCED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, INCLUDING SECTION 5-1401 AND
SECTION 5-1402 OF THE GENERAL OBLIGATION LAW OF THE STATE OF NEW YORK, WITHOUT
REFERENCE TO THE CONFLICTS OR CHOICE OF LAW PRINCIPLES THEREOF.
The Borrower hereby waives all requirements as to diligence, presentment,
demand of payment, protest and (except as required by the Credit Agreement)
notice of any kind with respect to this Revolving Credit Note.
IN WITNESS WHEREOF, the undersigned has executed this Revolving Credit Note
under seal as of the day and year first above written.
CORRECTIONS CORPORATION OF AMERICA
By:
------------------------------------
Name:
----------------------------------
Title:
--------------------------------
EXHIBIT A-2
to
Credit Agreement
dated as of February 3, 2006
by and among
Corrections Corporation of America,
as Borrower,
the Lenders party thereto,
as Lenders,
and
Wachovia Bank, National Association,
as Administrative Agent
FORM OF SWINGLINE NOTE
SWINGLINE NOTE
$10,000,000 February [__], 2006
FOR VALUE RECEIVED, the undersigned, CORRECTIONS CORPORATION OF AMERICA, a
Maryland corporation (the "Borrower"), promises to pay to the order of WACHOVIA
BANK, NATIONAL ASSOCIATION (the "Lender"), at the place and times provided in
the Credit Agreement referred to below, the principal sum of TEN MILLION DOLLARS
($10,000,000) or, if less, the principal amount of all Swingline Loans made by
the Lender from time to time pursuant to that certain Credit Agreement, dated as
of February 3, 2006 (as amended, restated, supplemented or otherwise modified,
the "Credit Agreement") by and among the Borrower, the Lenders who are or may
become a party thereto, and Wachovia Bank, National Association, as
Administrative Agent (the "Administrative Agent"). Capitalized terms used herein
and not defined herein shall have the meanings assigned thereto in the Credit
Agreement.
The unpaid principal amount of this Swingline Note from time to time
outstanding is payable as provided in the Credit Agreement and shall bear
interest as provided in Section 4.1 of the Credit Agreement. Swingline Loans
refunded as Revolving Credit Loans in accordance with Section 2.2(b) of the
Credit Agreement shall be payable by the Borrower as Revolving Credit Loans
pursuant to the Revolving Credit Notes, and shall not be payable under this
Swingline Note as Swingline Loans. All payments of principal and interest on
this Swingline Note shall be payable in lawful currency of the United States of
America in immediately available funds as provided in the Credit Agreement.
This Swingline Note is entitled to the benefits of, and evidences
Obligations incurred under, the Credit Agreement, to which reference is made for
a description of the security for this Swingline Note and for a statement of the
terms and conditions on which the Borrower is permitted and required to make
prepayments and repayments of principal of the Obligations evidenced by this
Swingline Note and on which such Obligations may be declared to be immediately
due and payable.
THIS SWINGLINE NOTE SHALL BE GOVERNED BY, CONSTRUED AND ENFORCED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, INCLUDING SECTION 5-1401 AND
SECTION 5-1402 OF THE GENERAL OBLIGATION LAW OF THE STATE OF NEW YORK, WITHOUT
REFERENCE TO THE CONFLICTS OR CHOICE]OF LAW PRINCIPLES THEREOF.
The Borrower hereby waives all requirements as to diligence, presentment,
demand of payment, protest and (except as required by the Credit Agreement)
notice of any kind with respect to this Swingline Note.
IN WITNESS WHEREOF, the undersigned has executed this Swingline Note under
seal as of the day and year first above written.
CORRECTIONS CORPORATION OF AMERICA
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
[Swingline Note- Correction Corporation of America]
2
EXHIBIT B
to
Credit Agreement
dated as of February 3, 2006
by and among
Corrections Corporation of America,
as Borrower,
the Lenders party thereto,
as Lenders,
and
Wachovia Bank, National Association,
as Administrative Agent
FORM OF NOTICE OF BORROWING
NOTICE OF BORROWING
Dated as of: _____________
Wachovia Bank, National Association,
as Administrative Agent
Xxxxxxxxx Xxxxx, XX-0
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Syndication Agency Services
Ladies and Gentlemen:
This irrevocable Notice of Borrowing is delivered to you pursuant to
Section 2.3(a) of the Credit Agreement dated as of February 3, 2006 (as amended,
restated, supplemented or otherwise modified, the "Credit Agreement"), by and
among Corrections Corporation of America, a Maryland corporation (the
"Borrower"), the lenders who are or may become a party thereto, as Lenders (the
"Lenders"), and Wachovia Bank, National Association, as Administrative Agent
(the "Administrative Agent").
1. The Borrower hereby requests that [the Lenders make Revolving Credit
Loans] [the Swingline Lender make a Swingline Loan] to the Borrower in the
aggregate principal amount of $___________. (Complete with an amount in
accordance with Section 2.3(a) of the Credit Agreement.)
2. The Borrower hereby requests that such Loan(s) be made on the following
Business Day: _____________________. (Complete with a Business Day in accordance
with Section 2.3(a) of the Credit Agreement for Revolving Credit Loans or
Swingline Loans).
3. The Borrower hereby requests that such Loan(s) bear interest at the
following interest rate, plus the Applicable Margin, as set forth below:
Interest Period Termination Date
Component (LIBOR for Interest Period
of Loan Interest Rate Rate only) (if applicable)
--------- ----------------------------- --------------- -------------------
[Base Rate or LIBOR Rate] (1)
----------
(1) Complete with (i) the Base Rate or the LIBOR Rate for Revolving Credit
Loans (provided that the LIBOR Rate shall not be available until three (3)
Business Days after the Closing Date) or (ii) the Base Rate for Swingline
Loans.
4. The aggregate principal amount of all Loans and L/C Obligations
outstanding as of the date hereof (including the Loan(s) requested herein) does
not exceed the maximum amount permitted to be outstanding pursuant to the terms
of the Credit Agreement.
5. All of the conditions applicable to the Loan(s) requested herein as set
forth in the Credit Agreement have been satisfied as of the date hereof and will
remain satisfied to the date of such Loan(s).
6. Capitalized terms used herein and not defined herein shall have the
meanings assigned thereto in the Credit Agreement.
[Signature Page Follows]
IN WITNESS WHEREOF, the undersigned has executed this Notice of Borrowing
as of the day and year first written above.
CORRECTIONS CORPORATION OF AMERICA
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
[Notice of Borrowing - Corrections Corporation of America]
EXHIBIT C
to
Credit Agreement
dated as of February 3, 2006
by and among
Corrections Corporation of America,
as Borrower,
the Lenders party thereto,
as Lenders,
and
Wachovia Bank, National Association,
as Administrative Agent
FORM OF NOTICE OF ACCOUNT DESIGNATION
NOTICE OF ACCOUNT DESIGNATION
Dated as of: _________
Wachovia Bank, National Association,
as Administrative Agent
Xxxxxxxxx Xxxxx, XX-0
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Syndication Agency Services
Ladies and Gentlemen:
This Notice of Account Designation is delivered to you pursuant to Section
2.3(b) of the Credit Agreement dated as of February 3, 2006 (as amended,
restated, supplemented or otherwise modified, the "Credit Agreement"), by and
among Corrections Corporation of America, a Maryland corporation (the
"Borrower"), the lenders who are or may become a party thereto, and Wachovia
Bank, National Association, as Administrative Agent (the "Administrative
Agent").
1. The Administrative Agent is hereby authorized to disburse all Loan
proceeds into the following account(s):
______________________________
ABA Routing Number: _________
Account Number: _____________
2. This authorization shall remain in effect until revoked or until a
subsequent Notice of Account Designation is provided to the Administrative
Agent.
3. Capitalized terms used herein and not defined herein shall have the
meanings assigned thereto in the Credit Agreement.
[Signature Page Follows]
IN WITNESS WHEREOF, the undersigned has executed this Notice of Account
Designation as of the day and year first written above.
CORRECTIONS CORPORATION OF AMERICA
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
[Notice of Account Designation - Corrections Corporation of America]
EXHIBIT D
to
Credit Agreement
dated as of February 3, 2006
by and among
Corrections Corporation of America,
as Borrower,
the Lenders party thereto,
as Lenders,
and
Wachovia Bank, National Association,
as Administrative Agent
FORM OF NOTICE OF PREPAYMENT
NOTICE OF PREPAYMENT
Dated as of: _____________
Wachovia Bank, National Association,
as Administrative Agent
Xxxxxxxxx Xxxxx, XX-0
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Syndication Agency Services
Ladies and Gentlemen:
This irrevocable Notice of Prepayment is delivered to you pursuant to
Section 2.4(c) of the Credit Agreement dated as of February 3, 2006 (as amended,
restated, supplemented or otherwise modified, the "Credit Agreement"), by and
among Corrections Corporation of America, a Maryland corporation (the
"Borrower"), the lenders who are or may become a party thereto, and Wachovia
Bank, National Association, as Administrative Agent (the "Administrative
Agent").
1. The Borrower hereby provides notice to the Administrative Agent that it
shall repay the following [Base Rate Loans] and/or [LIBOR Rate Loans]:
_______________. (Complete with an amount in accordance with Section 2.4 of the
Credit Agreement.)
2. The Loan(s) to be prepaid consist of [check each applicable box]
- Swingline Loan
- Revolving Credit Loans
3. The Borrower shall repay the above-referenced Loans on the following
Business Day: _______________. (Complete with the same Business Day as of the
date of this Notice of Prepayment with respect to any Swingline Loan, and any
Base Rate Loan and three (3) Business Days subsequent to date of this Notice of
Prepayment with respect to any LIBOR Rate Loan.)
4. Capitalized terms used herein and not defined herein shall have the
meanings assigned thereto in the Credit Agreement.
[Signature Page Follows]
IN WITNESS WHEREOF, the undersigned has executed this Notice of Prepayment
as of the day and year first written above.
CORRECTIONS CORPORATION OF AMERICA
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
[Notice of Prepayment - Corrections Corporation of America]
EXHIBIT E
to
Credit Agreement
dated as of February 3, 2006
by and among
Corrections Corporation of America,
as Borrower,
the Lenders party thereto,
as Lenders,
and
Wachovia Bank, National Association,
as Administrative Agent
FORM OF NOTICE OF CONVERSION/CONTINUATION
NOTICE OF CONVERSION/CONTINUATION
Dated as of: _____________
Wachovia Bank, National Association,
as Administrative Agent
Xxxxxxxxx Xxxxx, XX-0
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Syndication Agency Services
Ladies and Gentlemen:
This irrevocable Notice of Conversion/Continuation (this "Notice") is
delivered to you pursuant to Section 4.2 of the Credit Agreement dated as of
February 3, 2006 (as amended, restated, supplemented or otherwise modified, the
"Credit Agreement"), by and among Corrections Corporation of America, a Maryland
corporation (the "Borrower"), the lenders who are or may become a party thereto,
and Wachovia Bank, National Association, as Administrative Agent (the
"Administrative Agent").
1. The Loan(s) to which this Notice relates are Revolving Credit Loans.
2. This Notice is submitted for the purpose of: (Check one and complete
applicable information in accordance with the Credit Agreement.)
- Converting all or a portion of certain Base Rate Loans into LIBOR
Rate Loans
(a) The aggregate outstanding principal balance of such Loans is
$_______________.
(b) The principal amount of such Loans to be converted is
$_______________.
(c) The requested effective date of the conversion of such Loans is
_______________.
(d) The requested Interest Period applicable to the converted Loans
is _______________.
- Converting all or a portion of certain LIBOR Rate Loans into Base
Rate Loans
(a) The aggregate outstanding principal balance of such Loans is
$_______________.
(b) The last day of the current Interest Period for such Loans is
_______________.
(c) The principal amount of such Loans to be converted is
$_______________.
(d) The requested effective date of the conversion of such Loans is
_______________.
- Continuing all or a portion of certain LIBOR Rate Loans as LIBOR
Rate Loans
(a) The aggregate outstanding principal balance of such Loans is
$_______________.
(b) The last day of the current Interest Period for such Loans is
_______________.
(c) The principal amount of such Loans to be continued is
$_______________.
(d) The requested effective date of the continuation of such Loans is
_______________.
(e) The requested Interest Period applicable to the continued Loans
is _______________.
3. The aggregate principal amount of all Loans and L/C Obligations
outstanding as of the date hereof does not exceed the maximum amount permitted
to be outstanding pursuant to the terms of the Credit Agreement.
4. All of the conditions applicable to the conversion or continuation of
Loans requested herein as set forth in the Credit Agreement have been satisfied
or waived as of the date hereof and will remain satisfied or waived to the date
of such conversion or continuation.
5. Capitalized terms used herein and not defined herein shall have the
meanings assigned thereto in the Credit Agreement.
[Signature Page Follows]
IN WITNESS WHEREOF, the undersigned has executed this Notice of
Conversion/Continuation as of the day and year first written above.
CORRECTIONS CORPORATION OF AMERICA
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
[Notice of Conversion/Continuation - Corrections Corporation of America]
EXHIBIT F
to
Credit Agreement
dated as of February 3, 2006
by and among
Corrections Corporation of America,
as Borrower,
the Lenders party thereto,
as Lenders,
and
Wachovia Bank, National Association,
as Administrative Agent
FORM OF OFFICER'S COMPLIANCE CERTIFICATE
OFFICER'S COMPLIANCE CERTIFICATE
The undersigned, on behalf of Corrections Corporation of America, a
corporation organized under the laws of Maryland (the "Borrower"), hereby
certifies to the Administrative Agent and the Lenders, each as defined in the
Credit Agreement referred to below, as follows:
1. This Certificate is delivered to you pursuant to Section 7.2 of the
Credit Agreement dated as of February 3, 2006 (as amended, restated,
supplemented or otherwise modified, the "Credit Agreement"), by and among the
Borrower, the Lenders who are or become party thereto, and Wachovia Bank,
National Association, as Administrative Agent (the "Administrative Agent").
Capitalized terms used herein and not defined herein shall have the meanings
assigned thereto in the Credit Agreement.
2. I have reviewed the financial statements of the Borrower and its
Subsidiaries dated as of _______________ and for the _______________ period[s]
then ended, and such statements fairly present in all material respects the
financial condition of the Borrower and its Subsidiaries as of the dates
indicated and the results of their operations and cash flows for the period[s]
indicated, subject to normal year-end adjustments.
3. I have reviewed the terms of the Credit Agreement and the related Loan
Documents and have made, or caused to be made under my supervision, a review in
reasonable detail of the transactions and the condition of the Borrower and its
Subsidiaries during the accounting period covered by the financial statements
referred to in Paragraph 2 above. Such review has not disclosed the existence
during or at the end of such accounting period of any condition or event that
constitutes a Default or an Event of Default, nor do I have any knowledge of the
existence of any such condition or event as at the date of this Certificate.
4. As of the date of this Certificate, the Applicable Margin, the
Commitment Fee Rate and calculations determining such figures are set forth on
the attached Schedule 1, and the Borrower and its Subsidiaries are in compliance
with the financial covenants contained in and as required by Article IX of the
Credit Agreement as shown on such Schedule 1.
[Signature Page Follows]
WITNESS the following signature as of the day and year first written above.
CORRECTIONS CORPORATION OF AMERICA
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
[Compliance Certificate-Corrections Corporation of America]
2
Schedule 1
to
Officer's Compliance Certificate
[To be provided in a form acceptable to Administrative Agent]
EXHIBIT G
to
Credit Agreement
dated as of February 3, 2006
by and among
Corrections Corporation of America,
as Borrower,
the Lenders party thereto,
as Lenders,
and
Wachovia Bank, National Association,
as Administrative Agent
FORM OF ASSIGNMENT AND ASSUMPTION
ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption (the "Assignment and Assumption") is dated
as of the Effective Date set forth below and is entered into by and between
[Insert name of Assignor] (the "Assignor") and [Insert name of Assignee] (the
"Assignee"). Capitalized terms used but not defined herein shall have the
meanings given to them in the Credit Agreement identified below (as amended, the
"Credit Agreement"), 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.
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) all of the Assignor's 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) 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, but not limited to, 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)
above (the rights and obligations sold and assigned pursuant to clauses (i) and
(ii) above being referred to herein collectively as, the "Assigned Interest").
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.
1. Assignor: ______________________________
2. Assignee: ______________________________
[and is an Affiliate/Approved Fund of [identify
Lender]]
3. Borrower: Corrections Corporation of America
4. Administrative Agent: Wachovia Bank, National Association, as the
administrative agent under the Credit Agreement
5. Credit Agreement: The Credit Agreement dated as of February [ __ ], 2006,
as amended, by and among Corrections Corporation of
America, as Borrower, the Lenders party thereto and
Wachovia Bank, National Association, as Administrative
Agent
6. Assigned Interest:
Aggregate Amount Amount of Percentage
of Commitment/ Commitment/ Assigned of
Loans for all Loans Commitment/
Facility Assigned(2) Lenders(3) Assigned(3) Loans(4) CUSIP Number
-------------------- ---------------- ----------- ----------- -------------
$ $ %
$ $ %
$ $ %
[7. Trade Date: ______________](5)
[Page break]
----------
(2) Fill in the appropriate terminology for the types of facilities under the
Credit Agreement that are being assigned under this Assignment (e.g.
"Revolving Credit Commitment," "Term Loan Commitment," etc.)
(3) Amount to be adjusted by the counterparties to take into account any
payments or prepayments made between the Trade Date and the Effective Date.
(4) Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans
of all Lenders thereunder.
(5) To be completed if the Assignor and the Assignee intend that the minimum
assignment amount is to be determined as of the Trade Date.
Effective Date: _____________ ___, 20___ [TO BE INSERTED BY ADMINISTRATIVE AGENT
AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER
THEREFOR.]
The terms set forth in this Assignment and Assumption are hereby agreed to:
ASSIGNOR
[NAME OF ASSIGNOR]
By:
------------------------------------
Title:
---------------------------------
ASSIGNEE
[NAME OF ASSIGNEE]
By:
------------------------------------
Title:
---------------------------------
[Consented to and] Accepted:
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Administrative Agent
By
----------------------------------
Title:
------------------------------
[Consented to:]
CORRECTIONS CORPORATION OF AMERICA
By
----------------------------------
Title:
------------------------------
ANNEX 1 to Assignment and Assumption
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
1. Representations and Warranties.
1.1 Assignor. The Assignor (a) represents and warrants that (i) it is
the legal and beneficial owner of the Assigned Interest, (ii) the Assigned
Interest is free and clear of any lien, encumbrance or other adverse claim and
(iii) 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) assumes no responsibility with respect
to (i) any statements, warranties or representations made in or in connection
with the Credit Agreement or any other Loan Document, (ii) the execution,
legality, validity, enforceability, genuineness, sufficiency or value of the
Loan Documents or any collateral thereunder, (iii) 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) 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.
1.2. Assignee. The Assignee (a) represents and warrants that (i) 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) it
meets all requirements of an Eligible Assignee under the Credit Agreement
(subject to receipt of such consents as may be required under the Credit
Agreement), (iii) 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)
it has received a copy of the Credit Agreement, together with copies of the most
recent financial statements delivered pursuant to Section 7.1 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) if it is a Foreign
Lender, attached to the 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) agrees that (i) 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) it will perform in
accordance with their terms all of the obligations that by the terms of the Loan
Documents are required to be performed by it as a Lender.
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 that have accrued to but excluding
the Effective Date and to the Assignee for amounts that have accrued from and
after the Effective Date.
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.
5
EXHIBIT H
to
Credit Agreement
dated as of February 3, 2006
by and among
Corrections Corporation of America,
as Borrower,
the Lenders party thereto,
as Lenders,
and
Wachovia Bank, National Association,
as Administrative Agent
FORM OF SUBSIDIARY GUARANTY AGREEMENT
================================================================================
SUBSIDIARY GUARANTY AGREEMENT
dated as of February 3, 2006
by and among
CERTAIN SUBSIDIARIES OF
CORRECTIONS CORPORATION OF AMERICA,
as Subsidiary Guarantors,
in favor of
WACHOVIA BANK, NATIONAL ASSOCIATION
as Administrative Agent
================================================================================
7
TABLE OF CONTENTS
PAGE
----
Article I DEFINED TERMS.................................................. 3
SECTION 1.1 Definitions............................................ 3
SECTION 1.2 Other Definitional Provisions.......................... 4
Article II GUARANTY...................................................... 4
SECTION 2.1 Guaranty............................................... 4
SECTION 2.2 Bankruptcy Limitations on Subsidiary Guarantors........ 5
SECTION 2.3 Agreements for Contribution............................ 5
SECTION 2.4 Nature of Guaranty..................................... 7
SECTION 2.5 Waivers................................................ 8
SECTION 2.6 Modification of Loan Documents, etc.................... 9
SECTION 2.7 Demand by the Administrative Agent..................... 9
SECTION 2.8 Remedies............................................... 10
SECTION 2.9 Benefits of Guaranty................................... 10
SECTION 2.10 Termination; Reinstatement............................. 10
SECTION 2.11 Payments............................................... 11
Article III REPRESENTATIONS AND WARRANTIES............................... 11
SECTION 3.1 Organization; Power; Qualification..................... 11
SECTION 3.2 Authorization of Agreement; Enforceability............. 11
SECTION 3.3 Compliance of Guaranty with Laws, etc.................. 12
SECTION 3.4 Title to Properties.................................... 12
SECTION 3.5 Liens.................................................. 12
SECTION 3.6 Litigation............................................. 12
SECTION 3.7 Solvency............................................... 13
Article IV MISCELLANEOUS................................................. 13
SECTION 4.1 Notices................................................ 13
SECTION 4.2 Amendments in Writing.................................. 13
SECTION 4.3 Expenses; Indemnification; Waiver of Consequential
Damages, etc........................................... 13
SECTION 4.4 Right of Set-off....................................... 14
SECTION 4.5 Governing Law; Jurisdiction; Venue; Service of
Process................................................ 14
SECTION 4.6 Waiver of Jury Trial................................... 15
SECTION 4.7 No Waiver by Course of Conduct, Cumulative Remedies.... 16
SECTION 4.8 Successors and Assigns................................. 16
SECTION 4.9 Survival of Indemnities................................ 16
SECTION 4.10 Titles and Captions.................................... 16
SECTION 4.11 Severability of Provisions............................. 16
SECTION 4.12 Counterparts........................................... 17
SECTION 4.13 Integration............................................ 17
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SECTION 4.14 Advice of Counsel, No Strict Construction.............. 17
SECTION 4.15 Acknowledgements....................................... 17
SECTION 4.16 Releases............................................... 17
SECTION 4.17 Additional Subsidiary Guarantors....................... 18
ii
SUBSIDIARY GUARANTY AGREEMENT (as amended, restated, supplemented or
otherwise modified, this "Guaranty" or this "Agreement"), dated as of February
3, 2006, is made by certain Subsidiaries of CORRECTIONS CORPORATION OF AMERICA,
a Maryland corporation (such Subsidiaries, collectively, the "Subsidiary
Guarantors", each, a "Subsidiary Guarantor"), in favor of WACHOVIA BANK,
NATIONAL ASSOCIATION, as Administrative Agent (in such capacity, the
"Administrative Agent") for the ratable benefit of itself and the financial
institutions (the "Lenders") from time to time parties to the Credit Agreement,
dated of even date herewith (as amended, restated, supplemented or otherwise
modified, the "Credit Agreement"), by and among the Borrower, the Lenders, and
the Administrative Agent.
STATEMENT OF PURPOSE
Pursuant to the terms of the Credit Agreement, the Lenders have agreed to
make Extensions of Credit to the Borrower upon the terms and subject to the
conditions set forth therein.
The Borrower and the Subsidiary Guarantors, though separate legal entities,
comprise one integrated financial enterprise, and all Extensions of Credit to
the Borrower will inure, directly or indirectly to the benefit of each of the
Subsidiary Guarantors.
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 Subsidiary Guarantors shall have executed and delivered this Guaranty to the
Administrative Agent, for the ratable benefit of itself and the Lenders.
NOW, THEREFORE, 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 to the Borrower thereunder, the Subsidiary Guarantors hereby agree with
the Administrative Agent, for the ratable benefit of itself and the Lenders, as
follows:
ARTICLE XIV
DEFINED TERMS
SECTION 14.1 Definitions. The following terms when used in this
Guaranty shall have the meanings assigned to them below:
"Additional Subsidiary Guarantor" means each Subsidiary of the Borrower
that hereafter becomes a Subsidiary Guarantor pursuant to Section 4.17 hereof
and Section 8.11 of the Credit Agreement.
"Applicable Insolvency Laws" 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. Sections 544, 547, 548 and 550 and other "avoidance" provisions of Title
11 of the United States Code, as amended or supplemented).
"Guaranteed Obligations" has the meaning set forth in Section 2.1.
"Guaranty" means this Guaranty Agreement, as amended, restated,
supplemented or otherwise modified.
"Solvent" means, as to each Subsidiary Guarantor on a particular date, that
such Subsidiary Guarantor (a) 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, (b) has assets 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),
and (c) 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 in Section 2.2 hereof.
SECTION 14.2 Other Definitional Provisions. Capitalized terms used and
not otherwise defined in this Guaranty including the preambles and recitals
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. The words "hereof," "herein",
"hereto" and "hereunder" 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 Subsidiary Guarantor, shall refer to such Subsidiary
Guarantor's Collateral or the relevant part thereof.
ARTICLE XV
GUARANTY
SECTION 15.1 Guaranty. Each Subsidiary Guarantor hereby, jointly and
severally with the other Subsidiary Guarantors, unconditionally guarantees to
the Administrative Agent for the ratable benefit of itself and the Lenders, and
their respective permitted successors, endorsees, transferees and assigns, the
prompt payment and performance of all Obligations of the Borrower, 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 the Borrower, 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 Lender or acquired by the Administrative Agent or any Lender through
assignment or endorsement or otherwise, 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,
4
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 Borrower, including all of the
foregoing, being hereafter collectively referred to as the "Guaranteed
Obligations").
SECTION 15.2 Bankruptcy Limitations on Subsidiary Guarantors.
Notwithstanding anything to the contrary contained in Section 2.1, it is the
intention of each Subsidiary Guarantor and the Lenders that, in any proceeding
involving the bankruptcy, reorganization, arrangement, adjustment of debts,
relief of debtors, dissolution or insolvency or any similar proceeding with
respect to any Subsidiary Guarantor or its assets, the amount of such Subsidiary
Guarantor's obligations with respect to the Guaranteed Obligations shall be
equal to, but not in excess of, the maximum amount thereof not subject to
avoidance or recovery by operation of Applicable Insolvency Laws after giving
effect to Section 2.3(a). To that end, but only in the event and to the extent
that after giving effect to Section 2.3(a) such Subsidiary Guarantor's
obligations with respect to the Guaranteed Obligations or any payment made
pursuant to such Guaranteed Obligations would, but for the operation of the
first sentence of this Section 2.2, be subject to avoidance or recovery in any
such proceeding under Applicable Insolvency Laws after giving effect to Section
2.3(a), the amount of such Subsidiary Guarantor's obligations with respect to
the Guaranteed Obligations shall be limited to the largest amount that, after
giving effect thereto, would not, under Applicable Insolvency Laws, render such
Subsidiary Guarantor's obligations with respect to the Guaranteed Obligations
unenforceable or avoidable or otherwise subject to recovery under Applicable
Insolvency Laws. To the extent any payment actually made pursuant to the
Guaranteed Obligations exceeds the limitation of the first sentence of this
Section 2.2 and is otherwise subject to avoidance and recovery in any such
proceeding under Applicable Insolvency Laws, the amount subject to avoidance
shall in all events be limited to the amount by which such actual payment
exceeds such limitation and the Guaranteed Obligations as limited by the first
sentence of this Section 2.2 shall in all events remain in full force and effect
and be fully enforceable against such Subsidiary Guarantor. The first sentence
of this Section 2.2 is intended solely to preserve the rights of the
Administrative Agent hereunder against such Subsidiary Guarantor in such
proceeding to the maximum extent permitted by Applicable Insolvency Laws and
none of such Subsidiary Guarantor, the Borrower, any other Subsidiary Guarantor
or any other Person shall have any right or claim under such sentence that would
not otherwise be available under Applicable Insolvency Laws in such proceeding.
SECTION 15.3 Agreements for Contribution
(a) The Subsidiary Guarantors hereby agree among themselves that, if any
Subsidiary Guarantor shall make an Excess Payment (as defined below), such
Subsidiary Guarantor shall have a right of contribution from each other
Subsidiary Guarantor in an amount equal to such other Subsidiary Guarantor's
Contribution Share (as defined below) of such Excess Payment. The payment
obligations of any Subsidiary Guarantor under this Section 2.3(a) shall be
subordinate and subject in right of payment to the Obligations until such time
as the Obligations have been paid in full, and none of the Subsidiary Guarantors
shall exercise any right or remedy under this Section 2.3(a) against any other
Subsidiary Guarantor until such Obligations have been paid in full. For purposes
of this Section 2.3(a), (a) "Excess Payment" shall mean the amount paid by any
Subsidiary Guarantor in excess of its Ratable Share of any Guaranteed
5
Obligations; (b) "Ratable Share" shall mean, for any Subsidiary Guarantor in
respect of any payment of Guaranteed Obligations, the ratio (expressed as a
percentage) as of the date of such payment of Guaranteed Obligations of (i) the
amount by which the aggregate present fair salable value of all of its assets
and properties exceeds the amount of all debts and liabilities of such
Subsidiary Guarantor (including probable contingent, subordinated, unmatured,
and unliquidated liabilities, but excluding the obligations of such Subsidiary
Guarantor hereunder) to (ii) the amount by which the aggregate present fair
salable value of all assets and other properties of all of the Subsidiary
Guarantors exceeds the amount of all of the debts and liabilities (including
probable contingent, subordinated, unmatured, and unliquidated liabilities, but
excluding the obligations of the Subsidiary Guarantors hereunder) of the
Subsidiary Guarantors; provided, however, that, for purposes of calculating the
Ratable Shares of the Subsidiary Guarantors in respect of any payment of
Guaranteed Obligations, any Subsidiary Guarantor that became a Subsidiary
Guarantor subsequent to the date of any such payment shall be deemed to have
been a Subsidiary Guarantor on the date of such payment and the financial
information for such Subsidiary Guarantor as of the date such Subsidiary
Guarantor became a Subsidiary Guarantor shall be utilized for such Subsidiary
Guarantor in connection with such payment; and (c) "Contribution Share" shall
mean, for any Subsidiary Guarantor in respect of any Excess Payment made by any
other Subsidiary Guarantor, the ratio (expressed as a percentage) as of the date
of such Excess Payment of (i) the amount by which the aggregate present fair
salable value of all of its assets and properties exceeds the amount of all
debts and liabilities of such Subsidiary Guarantor (including probable
contingent, subordinated, unmatured, and unliquidated liabilities, but excluding
the obligations of such Subsidiary Guarantor hereunder) to (ii) the amount by
which the aggregate present fair salable value of all assets and other
properties of the Subsidiary Guarantors other than the maker of such Excess
Payment exceeds the amount of all of the debts and liabilities (including
probable contingent, subordinated, unmatured, and unliquidated liabilities, but
excluding the obligations of the Subsidiary Guarantors) of the Subsidiary
Guarantors other than the maker of such Excess Payment; provided, however, that,
for purposes of calculating the Contribution Shares of the Subsidiary Guarantors
in respect of any Excess Payment, any Subsidiary Guarantor that became a
Subsidiary Guarantor subsequent to the date of any such Excess Payment shall be
deemed to have been a Subsidiary Guarantor on the date of such Excess Payment
and the financial information for such Subsidiary Guarantor as of the date such
Subsidiary Guarantor became a Subsidiary Guarantor shall be utilized for such
Subsidiary Guarantor in connection with such Excess Payment. Each of the
Subsidiary Guarantors recognizes and acknowledges that the rights to
contribution arising hereunder shall constitute an asset in favor of the party
entitled to such contribution. This Section 2.3 shall not be deemed to affect
any right of subrogation, indemnity, reimbursement or contribution that any
Subsidiary Guarantor may have under Applicable Law against the Borrower in
respect of any payment of Guaranteed Obligations.
(b) No Subrogation. Notwithstanding any payment or payments by any of the
Subsidiary Guarantors hereunder, or any set-off or application of funds of any
of the Subsidiary Guarantors by the Administrative Agent or any Lender, or the
receipt of any amounts by the Administrative Agent or any Lender with respect to
any of the Guaranteed Obligations, none of the Subsidiary Guarantors shall be
entitled to be subrogated to any of the rights of the Administrative Agent or
any Lender against the Borrower or the other Subsidiary Guarantors or against
any collateral security held by the Administrative Agent or any Lender for the
payment of the Guaranteed Obligations, nor shall any of the Subsidiary
Guarantors seek any
6
reimbursement from the Borrower or any of the other Subsidiary Guarantors in
respect of payments made by such Subsidiary Guarantor in connection with the
Guaranteed Obligations, until all amounts owing to the Administrative Agent and
the Lenders on account of the Guaranteed Obligations are paid in full and the
Commitments are terminated. If any amount shall be paid to any Subsidiary
Guarantor on account of such subrogation rights at any time when all of the
Guaranteed Obligations shall not have been paid in full, such amount shall be
held by such Subsidiary Guarantor in trust for the Administrative Agent,
segregated from other funds of such Subsidiary Guarantor, and shall, forthwith
upon receipt by such Subsidiary Guarantor, be turned over to the Administrative
Agent in the exact form received by such Subsidiary Guarantor (duly endorsed by
such Subsidiary Guarantor to the Administrative Agent, if required) to be
applied against the Guaranteed Obligations, whether matured or unmatured, in
such order as set forth in the Credit Agreement.
SECTION 15.4 Nature of Guaranty. Each Subsidiary Guarantor 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:
the genuineness, validity, regularity, enforceability or any future amendment
of, or change in, the Credit Agreement or any other Loan Document or any other
agreement, document or instrument to which the Borrower or any Subsidiary
Guarantor is or may become a party;
the absence of any action to enforce this Guaranty, the Credit Agreement or any
other Loan Document or any waiver or consent by the Administrative Agent or any
Lender with respect to any of the provisions of this Guaranty, the Credit
Agreement or any other Loan Document;
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 Lender in
respect of such security or guaranty (including, without limitation, the release
of any such security or guaranty); or
any other action or circumstances that might otherwise constitute a legal or
equitable discharge or defense of a surety or Subsidiary Guarantor;
it being agreed by each Subsidiary Guarantor that, subject to the first sentence
of Section 2.2, its obligations under this Guaranty shall not be discharged
until the final indefeasible payment and performance, in full, of the Guaranteed
Obligations and the termination of the Revolving Credit Commitments.
(a) Each Subsidiary Guarantor 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 (other than the defense of
payment) against the Administrative Agent, the Lenders or the Borrower whether
now existing or which may arise in the future.
(b) Each Subsidiary Guarantor 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
7
dealings between the Borrower and any of the Subsidiary Guarantors, on the one
hand, and the Administrative Agent and the Lenders, on the other hand, likewise
shall be conclusively presumed to have been had or consummated in reliance upon
this Guaranty.
SECTION 15.5 Waivers. To the extent permitted by Applicable Law, each
Subsidiary Guarantor expressly waives all of the following rights and defenses
(and agrees not to take advantage of or assert any such right or defense):
(a) 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 Lender
to proceed in respect of the Obligations against the Borrower or any other
Person 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 Subsidiary Guarantor;
(b) any defense based upon the failure of the Administrative Agent or any
Lender to commence an action in respect of the Guaranteed Obligations against
the Borrower, such Subsidiary Guarantor, any other Subsidiary Guarantor or any
other Person or any security for the payment and performance of the Guaranteed
Obligations;
(c) 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, that may delay, prevent or otherwise affect the
performance by such Subsidiary Guarantor of its obligations under, or the
enforcement by the Administrative Agent or the Lenders of, this Guaranty;
(d) 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 the benefit of all provisions of law that are
or might be in conflict with the terms of this Guaranty; and
(e) any and all right to notice of the creation, renewal, extension or
accrual of any of the Obligations and notice of or proof of reliance by the
Administrative Agent or any Lender upon, or acceptance of, this Guaranty.
To the extent permitted by Applicable Law, each Subsidiary Guarantor agrees
that any notice or directive given at any time to the Administrative Agent or
any Lender that is inconsistent with any of the foregoing waivers shall be null
and void and may be ignored by the Administrative Agent or such Lender, 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 and the other Loan Documents and, but for
this Guaranty and such waivers, the Administrative Agent and Lenders would
decline to enter into the Credit Agreement and the other Loan Documents.
8
SECTION 15.6 Modification of Loan Documents, etc. Neither the
Administrative Agent nor any Lender shall incur any liability to any Subsidiary
Guarantor 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 Subsidiary
Guarantor under this Guaranty:
(a) 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;
(b) any action under or in respect of the Credit Agreement or the other
Loan Documents 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
refraining from exercising any such remedies, powers or privileges;
(c) any amendment to, or modification of, in any manner whatsoever, the
Loan Documents;
(d) any extension or waiver of the time for performance by any Subsidiary
Guarantor, the Borrower or any other Person of, or compliance with, any term,
covenant or agreement on its part to be performed or observed under a Loan
Document, or waiver of such performance or compliance or consent to a failure
of, or departure from, such performance or compliance;
(e) the taking and holding of security or collateral for the payment of the
Obligations or the sale, exchange, release, disposal of, or other dealing with,
any property pledged, mortgaged or conveyed, or in which the Administrative
Agent or the Lenders have been granted a Lien, to secure any Indebtedness of any
Subsidiary Guarantor or the Borrower to the Administrative Agent or the Lenders;
(f) the release of anyone who may be liable in any manner for the payment
of any amounts owed by any Subsidiary Guarantor or the Borrower to the
Administrative Agent or any Lender;
(g) any modification or termination of the terms of any intercreditor or
subordination agreement pursuant to which claims of other creditors of any
Subsidiary Guarantor or the Borrower are subordinated to the claims of the
Administrative Agent or any Lender; or
(h) any application of any sums by whomever paid or however realized to any
Obligations owing by any Subsidiary Guarantor or the Borrower to the
Administrative Agent or any Lender in such manner as the Administrative Agent or
any Lender shall determine in its reasonable discretion.
SECTION 15.7 Demand by the Administrative Agent. In addition to the
terms set forth in this Article II 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 Subsidiary Guarantors
shall, upon demand
9
in writing therefor by the Administrative Agent to the Subsidiary Guarantors,
pay all or such portion of the outstanding Guaranteed Obligations due hereunder
then declared due and payable.
SECTION 15.8 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 Subsidiary Guarantors their
obligations and liabilities hereunder and exercise such other rights and
remedies as may be available to the Administrative Agent hereunder, under the
Credit Agreement or the other Loan Documents or otherwise.
SECTION 15.9 Benefits of Guaranty. The provisions of this Guaranty are
for the benefit of the Administrative Agent and the Lenders and their respective
permitted successors, transferees, endorsees and assigns, and nothing herein
contained shall impair, as between the Borrower, the Administrative Agent and
the Lenders, the obligations of the Borrower under the Loan Documents. In the
event all or any part of the Obligations are transferred, endorsed or assigned
by the Administrative Agent or any Lender to any Person or Persons as permitted
under the Credit Agreement, any reference to an "Administrative Agent", or
"Lender" herein shall be deemed to refer equally to such Person or Persons.
SECTION 15.10 Termination; Reinstatement.
(a) Subject to clause (c) below, this Guaranty shall remain in full force
and effect until all the Guaranteed Obligations and all the obligations of the
Subsidiary Guarantors shall have been paid in full and the Commitments
terminated.
(b) No payment made by the Borrower, any Subsidiary Guarantor or any other
Person received or collected by the Administrative Agent or any Lender from the
Borrower, any Subsidiary Guarantor 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
Subsidiary Guarantor hereunder, which shall, notwithstanding any such payment
(other than any payment made by such Subsidiary Guarantor in respect of the
obligations of the Subsidiary Guarantors or any payment received or collected
from such Subsidiary Guarantor in respect of the obligations of the Subsidiary
Guarantors), remain liable for the obligations of the Subsidiary Guarantors up
to the maximum liability of such Subsidiary Guarantor hereunder until the
Guaranteed Obligations and all the obligations of the Subsidiary Guarantors
shall have been paid in full and the Commitments terminated.
(c) Each Subsidiary Guarantor agrees that, if any payment made by the
Borrower 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 is repaid in whole or in part
pursuant to a good faith settlement of a pending or
10
threatened claim, or the proceeds of any Collateral are required to be refunded
by the Administrative Agent or any Lender to the Borrower or its estate,
trustee, receiver or any other Person, including, without limitation, any
Subsidiary Guarantor, under any Applicable Law or equitable cause, then, to the
extent of such payment or repayment, each Subsidiary Guarantor's liability
hereunder (and any Lien or Collateral 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 Subsidiary Guarantor's
liability hereunder shall have been released or terminated by virtue of such
cancellation or surrender), this Guaranty (and such Lien or Collateral) 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 Subsidiary Guarantor in respect of the amount of such
payment (or any Lien or Collateral securing such obligation).
SECTION 15.11 Payments. Payments by the Subsidiary Guarantors shall be
made to the Administrative Agent, to be credited and applied to the Guaranteed
Obligations in accordance with the terms of the Credit Agreement, in immediately
available Dollars to an account designated by the Administrative Agent or at the
Administrative Agent's Office or at any other address that may be specified in
writing from time to time by the Administrative Agent.
ARTICLE XVI
REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Lenders to make Extensions of
Credit, each Subsidiary Guarantor hereby represents and warrants that:
SECTION 16.1 Organization; Power; Qualification. Such Subsidiary
Guarantor is duly organized, validly existing and in good standing under the
laws of the jurisdiction of its incorporation or formation, has the power and
authority to own 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 except in
jurisdictions where the failure to be so qualified or in good standing could not
reasonably be expected to result in a Material Adverse Effect.
SECTION 16.2 Authorization of Agreement; Enforceability. Such
Subsidiary Guarantor has the right, power and authority and has taken all
necessary corporate and other action to authorize the execution, delivery and
performance of this Guaranty in accordance with its terms. This Guaranty has
been duly executed and delivered by duly authorized officers or other
representatives of such Subsidiary Guarantor and constitutes the legal, valid
and binding obligation of such Subsidiary Guarantor, enforceable in accordance
with its terms, except as such enforceability may be limited by bankruptcy,
insolvency,
11
reorganization, moratorium or similar state or federal debtor relief laws from
time to time in effect that affect the enforcement of creditors' rights and the
availability of equitable remedies.
SECTION 16.3 Compliance of Guaranty with Laws, etc. The execution,
delivery and performance by such Subsidiary Guarantor of this Guaranty, in
accordance with its terms, does not and will not, by the passage of time, the
giving of notice or otherwise, (i) require any Governmental Approval or violate
any Applicable Law relating to such Subsidiary Guarantor where the failure to
obtain such Governmental Approval or such violation of Applicable Law could
reasonably be expected to have a Material Adverse Effect, (ii) conflict with,
result in a breach of or constitute a default under the articles of
incorporation, bylaws or other organizational documents of such Subsidiary
Guarantor (iii) conflict with, result in a breach of or constitute a default
under any indenture, agreement or other instrument to which such Subsidiary
Guarantor is a party or by which any of its properties may be bound or any
Governmental Approval relating to such Subsidiary Guarantor that could
reasonably be expected to have a Material Adverse Effect, (iv) result in or
require the creation or imposition of any Lien upon or with respect to any
property now owned or hereafter acquired by such Subsidiary Guarantor other than
Liens arising under the Loan Documents and Permitted Liens or (v) require any
consent or authorization of, filing with, or other act in respect of, an
arbitrator or Governmental Authority and no consent of any other Person is
required in connection with the execution, delivery, performance, validity or
enforceability of this Guaranty other than consents, authorizations, filings or
other acts or consents that have been obtained or made or for which the failure
to obtain or make could not reasonably be expected to have a Material Adverse
Effect and other than consents or filings under the UCC.
SECTION 16.4 Title to Properties. Such Subsidiary Guarantor has such
title to the real property owned or leased by it as is necessary or desirable to
the conduct of its business and valid and legal title to all of its personal
property and assets, including, but not limited to, those reflected on the
balance sheets of the Borrower and its Restricted Subsidiaries delivered
pursuant to terms and conditions of the Credit Agreement, except those which
have been disposed of by such Subsidiary Guarantor subsequent to such date which
dispositions have been in the ordinary course of business or as otherwise
expressly permitted under the terms of the Credit Agreement.
SECTION 16.5 Liens. None of the properties and assets of such
Subsidiary Guarantor is subject to any Lien, except Permitted Liens under the
terms of the Credit Agreement. No Subsidiary Guarantor has signed any financing
statement or any security agreement authorizing any secured party thereunder to
file any financing statement, except to perfect those Permitted Liens.
SECTION 16.6 Litigation. Except for matters existing on the Closing
Date and set forth on Schedule 6.1(u) to the Credit Agreement, there are no
actions, suits or proceedings pending nor, to the knowledge of such Subsidiary
Guarantor, threatened against or in any other way relating adversely to or
affecting such Subsidiary Guarantor or any Subsidiaries thereof or any of their
respective
12
properties in any court or before any arbitrator of any kind or before or by any
Governmental Authority that (i) has or could reasonably be expected to have a
Material Adverse Effect, or (ii) material adversely affects any transaction
contemplated hereby.
SECTION 16.7 Solvency. As of the Closing Date (or such later date upon
which such Subsidiary Guarantor became a party hereto) such Subsidiary Guarantor
is Solvent.
ARTICLE XVII
MISCELLANEOUS
SECTION 17.1 Notices. All notices and communications hereunder shall
be given to the addresses and otherwise made in accordance with Section 13.1 of
the Credit Agreement; provided that notices and communications to the Subsidiary
Guarantors shall be directed to the Subsidiary Guarantors, at the address of the
Borrower set forth in Section 13.1 of the Credit Agreement.
SECTION 17.2 Amendments in Writing. None of the terms or provisions of
this Guaranty may be waived, amended, supplemented or otherwise modified except
in accordance with Section 13.2 of the Credit Agreement.
SECTION 17.3 Expenses; Indemnification; Waiver of Consequential
Damages, etc.
(a) Each Subsidiary Guarantor agrees to pay or reimburse each Lender and
the Administrative Agent for all its costs and expenses incurred in connection
with enforcing or preserving any rights under this Guaranty and the other Loan
Documents to which such Subsidiary Guarantor is a party, including, without
limitation, the reasonable fees and disbursements of counsel to each Lender and
of counsel to the Administrative Agent; provided that, so long as no Default or
Event of Default exists, such reimbursement for legal fees and disbursements
shall be limited to the fees and disbursements of one primary counsel designated
by the Administrative Agent plus the fees and disbursements of any local and
specialist counsel engaged by the Administrative Agent.
(b) Each Subsidiary Guarantor agrees to pay, and to save the Administrative
Agent and the Lenders harmless from, any and all liabilities with respect to, or
resulting from any such Subsidiary Guarantor's delay in paying, any and all
stamp, excise, sales or other taxes, other than Excluded Taxes (in each case,
subject to Section 4.11 of the Credit Agreement) that may be payable or
determined to be payable in connection with any of the transactions contemplated
by this Guaranty.
13
(c) Each Subsidiary Guarantor agrees to pay, and to save the Administrative
Agent and the Lenders 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 Section 13.3 of the Credit Agreement.
(d) To the fullest extent permitted by Applicable Law, each Subsidiary
Guarantor 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 Guaranty, any other Loan Document or any agreement
or instrument contemplated hereby or the transactions contemplated hereby or
thereby. No Indemnitee referred to in this Section 4.3 shall be liable for any
damages arising from the use by unintended recipients of any information or
other materials distributed by it through telecommunications, electronic or
other information transmission systems in connection with this Guaranty or the
other Loan Documents or the transactions contemplated hereby or thereby.
(e) All amounts due under this Section shall be payable promptly after
demand therefor.
SECTION 17.4 Right of Set-off. If an Event of Default shall have
occurred and be continuing, each Lender, the Issuing Lender, the Swingline
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, the Issuing
Lender, the Swingline Lender or any such Affiliate to or for the credit or the
account of a Subsidiary Guarantor against any and all of the obligations of such
Subsidiary Guarantor now or hereafter existing under this Guaranty or any other
Loan Document to such Lender, the Issuing Lender or the Swingline Lender,
irrespective of whether or not such Lender, the Issuing Lender or the Swingline
Lender shall have made any demand under this Agreement or any other Loan
Document and although such obligations of such Subsidiary Guarantor may be
contingent or unmatured or are owed to a branch or office of such Lender, the
Issuing Lender or the Swingline Lender different from the branch or office
holding such deposit or obligated on such indebtedness. The rights of each
Lender, the Issuing Lender, the Swingline Lender and their respective Affiliates
under this Section are in addition to other rights and remedies (including other
rights of setoff) that such Lender, the Issuing Lender, the Swingline Lender or
their respective Affiliates may have. Each Lender, the Issuing Lender and the
Swingline Lender agrees to notify such Subsidiary Guarantor 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.
SECTION 17.5 Governing Law; Jurisdiction; Venue; Service of Process.
14
(a) Governing Law. This Guaranty, unless otherwise expressly set forth
herein, shall be governed by, and construed in accordance with, the law of the
State of New York, without reference to the conflicts or choice of law
principles thereof, other than such principles that are stated in Section 5-1401
and 5-1402 of the General Obligations Law of the State of New York.
(b) Submission to Jurisdiction. Each Subsidiary Guarantor irrevocably and
unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of the courts of the State of New York sitting in the Borough of
Manhattan and of the United States District Court of the Borough of Manhattan,
and any appellate court from any thereof, in any action or proceeding arising
out of or relating to this Guaranty 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
Guaranty or in any other Loan Document shall affect any right that the
Administrative Agent or any Lender may otherwise have to bring any action or
proceeding relating to this Guaranty or any other Loan Document against any
Subsidiary Guarantor or its properties in the courts of any jurisdiction.
(c) Waiver of Venue. Each Subsidiary Guarantor 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 Guaranty or any other Loan
Document in any court referred to in paragraph (b) 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.
(d) Service of Process. Each party hereto irrevocably consents to service
of process in the manner provided for notices in Section 13.1 of the Credit
Agreement. Nothing in this Guaranty will affect the right of any party hereto to
serve process in any other manner permitted by Applicable Law.
SECTION 17.6 Waiver of Jury Trial.
(a) 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 ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY (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) ACKNOWLEDGES
THAT IT AND THE
15
OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS GUARANTY AND THE OTHER
LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN
THIS SECTION.
SECTION 17.7 No Waiver by Course of Conduct, Cumulative Remedies.
Neither the Administrative Agent nor any Lender shall by any act (except by a
written instrument pursuant to Section 4.2), delay, indulgence, omission or
otherwise be deemed to have waived any right or remedy hereunder or to have
acquiesced in any Default or Event of Default. No failure to exercise, nor any
delay in exercising, on the part of the Administrative Agent or any Lender, 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 Lender of any right or
remedy hereunder on any one occasion shall not be construed as a bar to any
right or remedy that the Administrative Agent or such Lender 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.
SECTION 17.8 Successors and Assigns. This Guaranty shall be binding
upon the successors and assigns of each Subsidiary Guarantor and shall inure to
the benefit of each Subsidiary Guarantor (and shall bind all Persons who become
bound as a Subsidiary Guarantor under this Guaranty), the Administrative Agent
and the Lenders and their successors and assigns; provided that no Subsidiary
Guarantor may assign, transfer or delegate any of its rights or obligations
under this Guaranty without the prior written consent of the Administrative
Agent.
SECTION 17.9 Survival of Indemnities. Notwithstanding any termination
of this Guaranty, the indemnities to which the Administrative Agent and the
Lenders are entitled under the provisions of Section 4.3 and any other provision
of this Guaranty and the other Loan Documents shall continue in full force and
effect and shall protect the Administrative Agent and the Lenders against events
arising after such termination as well as before.
SECTION 17.10 Titles and Captions. Titles and captions of Articles,
Sections and subsections in, and the table of contents of, this Guaranty are for
convenience only, and neither limit nor amplify the provisions of this Guaranty.
SECTION 17.11 Severability of Provisions. Any provision of this
Guaranty or any other Loan Document that 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
16
remaining provisions hereof or thereof or affecting the validity or
enforceability of such provision in any other jurisdiction.
SECTION 17.12 Counterparts. This Guaranty may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and shall be
binding upon all parties, their successors and assigns, and all of which taken
together shall constitute one and the same agreement.
SECTION 17.13 Integration. This Guaranty and the other Loan Documents
comprise the complete and integrated agreement of the parties on the subject
matter hereof and thereof and supersede all prior agreements, written or oral,
on such subject matter. In the event of any conflict between the provisions of
this Guaranty and those of any other Loan Document, the provisions of the Credit
Agreement shall control; provided that any provision of any other Loan Document
that imposes additional burdens on any Subsidiary Guarantor or -------- further
restricts the rights of any Subsidiary Guarantor or gives the Administrative
Agent or Lenders additional rights shall not be deemed to be in conflict or
inconsistent with this Guaranty and shall be given full force and effect. Each
Loan Document was drafted with the joint participation of the respective parties
thereto and shall be construed neither against nor in favor of any party, but
rather in accordance with the fair meaning thereof.
SECTION 17.14 Advice of Counsel, No Strict Construction. Each of the
parties represents to each other party hereto that it has discussed this
Guaranty with its counsel. The parties hereto have participated jointly in the
negotiation and drafting of this Guaranty. In the event an ambiguity or question
of intent or interpretation arises, this Guaranty shall be construed as if
drafted jointly by the parties hereto and no presumption or burden of proof
shall arise favoring or disfavoring any party by virtue of the authorship of any
provisions of this Guaranty.
SECTION 17.15 Acknowledgements. Each Subsidiary Guarantor hereby
acknowledges that:
(a) neither the Administrative Agent nor any Lender has any fiduciary
relationship with or duty to any Subsidiary Guarantor arising out of or in
connection with this Guaranty or any of the other Loan Documents, and the
relationship between the Subsidiary Guarantors, on the one hand, and the
Administrative Agent and Lenders, on the other hand, in connection herewith or
therewith is solely that of debtor and creditor; and
(b) no joint venture is created hereby or by the other Loan Documents or
otherwise exists by virtue of the transactions contemplated hereby among the
Lenders or among the Subsidiary Guarantors and the Lenders.
SECTION 17.16 Releases.
17
At such time as the Guaranteed Obligations (except for contingent Guaranteed
Obligations that expressly survive the termination of this Agreement or any
other Loan Document) shall have been paid in full and the Revolving Credit
Commitments have been terminated, this Guaranty and all obligations (other than
those expressly stated to survive such termination) of the Administrative Agent
and each Subsidiary Guarantor hereunder shall terminate, all without delivery of
any instrument or performance of any act by any party. In the event that all the
Capital Stock of any Subsidiary Guarantor shall be sold, transferred or
otherwise disposed of in a transaction permitted by the Credit Agreement, then,
at the request of the Borrower and at the expense of the Borrower and the
Subsidiary Guarantors, such Subsidiary Guarantor shall be released from its
obligations hereunder; provided that the Borrower shall have delivered to the
Administrative Agent, at least ten (10) Business Days prior to the date of the
proposed release, a written request for release identifying the relevant
Subsidiary Guarantor 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 and the other Loan
Documents.
SECTION 17.17 Additional Subsidiary Guarantors. Each Restricted
Subsidiary of the Borrower that is required to become a party to this Guaranty
pursuant to Section 8.11 of the Credit Agreement shall become a Subsidiary
Guarantor for all purposes of this Guaranty upon execution and delivery by such
Restricted Subsidiary of a supplement in form and substance satisfactory to the
Administrative Agent.
[Signature Pages Follow]
18
IN WITNESS WHEREOF, each of the Subsidiary Guarantors has executed and
delivered this Guaranty under seal by their duly authorized officers, all as of
the day and year first above written.
SUBSIDIARY GUARANTORS:
CCA of Tennessee, LLC
Prison Realty Management, Inc.
Technical and Business
Institute of America, Inc.
CCA International, Inc.
CCA Properties of America, LLC
CCA Properties of Arizona, LLC
CCA Properties of Tennessee, LLC
CCA Western Properties, Inc.
By:
------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Chief Executive Officer
CCA Properties of Texas, L.P.
By:
------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Chief Executive Officer,
CCA Properties of America, LLC,
as General Partner
TransCor America, LLC
By:
------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Vice President, Treasurer
EXHIBIT I
to
Credit Agreement
dated as of February 3, 2006
by and among
Corrections Corporation of America,
as Borrower,
the Lenders party thereto,
as Lenders,
and
Wachovia Bank, National Association,
as Administrative Agent
FORM OF COLLATERAL AGREEMENT
================================================================================
COLLATERAL AGREEMENT
dated as of February 3, 2006
by and among
CORRECTIONS CORPORATION OF AMERICA,
and certain of its Subsidiaries
as Grantors,
in favor of
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Administrative Agent
================================================================================
21
TABLE OF CONTENTS
PAGE
----
ARTICLE I DEFINED TERMS.................................................. 1
SECTION 1.1 Terms Defined in the Uniform Commercial Code........... 1
SECTION 1.2 Definitions............................................ 1
SECTION 1.3 Other Definitional Provisions.......................... 4
ARTICLE II SECURITY INTEREST............................................. 4
SECTION 2.1 Grant of Security Interest............................. 4
SECTION 2.2 Grantors Remain Liable................................. 5
ARTICLE III REPRESENTATIONS AND WARRANTIES............................... 6
SECTION 3.1 Existence.............................................. 6
SECTION 3.2 Authorization of Agreement; No Conflict................ 6
SECTION 3.3 Consents............................................... 6
SECTION 3.4 Perfected First Priority Liens......................... 7
SECTION 3.5 Title, No Other Liens.................................. 7
SECTION 3.6 State of Organization; other Information............... 7
SECTION 3.7 Accounts............................................... 8
SECTION 3.8 Deposit Accounts....................................... 8
SECTION 3.9 Pledged Investment Property; Pledged Partnership/LLC
Interests.............................................. 8
SECTION 3.10 Government Contracts................................... 8
ARTICLE IV COVENANTS..................................................... 9
SECTION 4.1 Maintenance of Perfected Security Interest; Further
Information............................................ 9
SECTION 4.2 Maintenance of Insurance............................... 9
SECTION 4.3 Changes in Locations; Changes in Name or Structure..... 10
SECTION 4.4 Required Notifications................................. 10
SECTION 4.5 Delivery Covenants..................................... 10
SECTION 4.6 Control Covenants...................................... 11
SECTION 4.7 Filing Covenants....................................... 11
SECTION 4.8 Accounts............................................... 11
SECTION 4.9 Pledged Investment Property; Pledged Partnership/LLC
Interests.............................................. 12
SECTION 4.10 Government Contracts................................... 12
SECTION 4.11 Further Assurances..................................... 12
ARTICLE V REMEDIAL PROVISIONS............................................ 13
SECTION 5.1 General Remedies....................................... 13
SECTION 5.2 Specific Remedies...................................... 14
SECTION 5.3 Registration Rights.................................... 16
SECTION 5.4 Application of Proceeds................................ 17
SECTION 5.5 Waiver, Deficiency..................................... 17
i
ARTICLE VI THE ADMINISTRATIVE AGENT...................................... 17
SECTION 6.1 Administrative Agent's Appointment as
Attorney-In-Fact....................................... 17
SECTION 6.2 Duty of Administrative Agent........................... 19
SECTION 6.3 Authority of Administrative Agent...................... 19
ARTICLE VII MISCELLANEOUS................................................ 19
SECTION 7.1 Amendments in Writing.................................. 20
SECTION 7.2 Notices................................................ 20
SECTION 7.3 No Waiver by Course of Conduct, Cumulative Remedies.... 20
SECTION 7.4 Enforcement Expenses, Indemnification.................. 20
SECTION 7.5 Waiver of Jury Trial................................... 21
SECTION 7.6 Successors and Assigns................................. 21
SECTION 7.7 Set-Off................................................ 21
SECTION 7.8 Counterparts........................................... 22
SECTION 7.9 Severability........................................... 22
SECTION 7.10 Section Heading........................................ 22
SECTION 7.11 Integration............................................ 22
SECTION 7.12 Governing Law.......................................... 22
SECTION 7.13 Consent to Jurisdiction................................ 22
SECTION 7.14 Waiver of Venue........................................ 23
SECTION 7.15 Service of Process..................................... 23
SECTION 7.16 Acknowledgements....................................... 23
SECTION 7.17 Additional Grantors.................................... 24
SECTION 7.18 Releases............................................... 24
ii
EXHIBITS:
Exhibit A-1 Form of Assignment of: Government Contract
Exhibit A-2 Form of Notice of Assignment
SCHEDULES:
Schedule 3.6 Exact Legal Name; Jurisdiction of Organization; Taxpayer
Identification Number; Registered Organization Number;
Mailing Address; Chief Executive Office and other Locations
Schedule 3.8 Deposit Accounts
Schedule 3.9 Pledged Investment Property and Pledged Partnership/LLC Interests
iii
COLLATERAL AGREEMENT (this "Agreement"), dated as of February 3, 2006, by and
among CORRECTIONS CORPORATION OF AMERICA, a Maryland corporation (the
"Borrower"), certain of its Subsidiaries as identified on the signature pages
hereto and any Additional Grantor (as defined below) who may become party to
this Agreement (such Subsidiaries and Additional Grantors, collectively, with
the Borrower, the "Grantors"), in favor of WACHOVIA BANK, NATIONAL ASSOCIATION,
as Administrative Agent (in such capacity, the "Administrative Agent") for the
ratable benefit of the banks and other financial institutions (the "Lenders")
from time to time parties to the Credit Agreement, dated as of the date hereof
(as amended, restated, supplemented or otherwise modified from time to time, the
"Credit Agreement"), by and among the Borrower, the Lenders, and the
Administrative Agent.
STATEMENT OF PURPOSE
Pursuant to the Credit Agreement, the Lenders have agreed to make
Extensions of Credit to the Borrower upon the terms and subject to the
conditions set forth therein.
Pursuant to the terms of a Subsidiary Guaranty Agreement of even date,
certain Subsidiaries of the Borrower who are parties hereto have guaranteed the
payment and performance of the Obligations.
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 Lenders.
NOW, THEREFORE, 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 to the Borrower thereunder, each Grantor hereby agrees with the
Administrative Agent, for the ratable benefit of itself and the Lenders, as
follows:
ARTICLE XVIII
DEFINED TERMS
SECTION 18.1 Terms Defined in the Uniform Commercial Code.
(a) The following terms when used in this Agreement shall have the meanings
assigned to them in the UCC (as defined in the Credit Agreement) as in effect
from time to time: "Account", "Account Debtor", "Certificated Security",
"Deposit Account", "General Intangibles", "Investment Company Security",
"Investment Property", "Proceeds", "Registered Organization", "Securities
Intermediary", "Securities Account" and "Supporting Obligation".
(b) 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.
SECTION 18.2 Definitions.
The following terms when used in this Agreement shall have the
meanings assigned to them below:
"Additional Grantor" means each Subsidiary of the Borrower that
hereafter becomes a Grantor pursuant to Section 7.15 (as required pursuant to
Section 8.11 of the Credit Agreement).
"Agreement" means this Collateral Agreement, as amended, restated,
supplemented or otherwise modified from time to time.
"Applicable Insolvency Laws" 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. Sections 547, 548 and 550 and
other "avoidance" provisions of Title 11 of the United States Code).
"Assignment Agreement" means each Assignment Agreement executed by any
Grantor with respect to any Government Contract to which such Grantor is a
party, substantially in the form of Exhibit A-1 attached hereto.
"Assignment of Claims Act" means the Assignment of Claims Act of 1940
(41 U.S.C. Section 15, 31 U.S.C. Section 3737, and 31 U.S.C. Section 3727),
including all amendments thereto and regulations promulgated thereunder.
"Collateral" has the meaning assigned thereto in Section 2.1.
"Collateral Account" means any collateral account established by the
Administrative Agent as provided in Section 5.2.
"Control" means the manner in which "control" is achieved under the
UCC with respect to any Collateral for which the UCC specifies a method of
achieving "control".
"Controlled Depositary" has the meaning assigned thereto in Section
4.6.
"Effective Endorsement and Assignment" 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.
"Excluded Deposit Account" means, collectively, (a) Deposit Accounts
established solely for the purpose of funding payroll and other compensation and
benefits to employees, (b) so long as no Default or Event of Default has
occurred and is continuing, Deposit Accounts with amounts on deposit that do not
exceed $100,000 per Deposit Account; provided, that, the aggregate amount on
deposit in all Deposit Accounts described in this clause (b) for which a control
agreement has not been obtained shall not exceed $2,000,000 in the aggregate at
any time and (c) any Deposit Accounts listed under the title "Excluded Deposit
Accounts" on Schedule 3.8 hereto.
"Government Contract" means a contract between any Grantor and an
agency, department or instrumentality of the United States or any state,
municipal or local Governmental Authority
2
located in the United States and all obligations of any such Governmental
Authority arising under any Account now or hereafter owing by any such
Governmental Authority, as account debtor, to any Grantor pursuant to such
contract.
"Grantors" has the meaning set forth in the Preamble of this
Agreement.
"Issuer" means any issuer of any Pledged Investment Property or
Pledged Partnership/LLC Interests (including, without limitation, any Issuer as
defined in the UCC).
"Notice of Assignment" means each Notice of Assignment executed by any
Grantor with respect to any Government Contract to which such Grantor is a
party, substantially in the form of Exhibit A-2.
"Obligations" means with respect to the Borrower, the meaning assigned
thereto in the Credit Agreement, and with respect to each Subsidiary Guarantor,
the obligations of such Subsidiary Guarantor under the Subsidiary Guaranty
Agreement executed by such Subsidiary Guarantor and with respect to all
Grantors, all liabilities and obligations of the Grantors hereunder and all
liabilities and obligations of the Grantors with respect to overdrafts, returned
items and related liabilities and all indemnification obligations under the Loan
Documents now or hereafter owing by any Grantor to Wachovia Bank, National
Association, any Affiliate thereof or the Administrative Agent arising from or
in connection with treasury, depositary or cash management services or in
connection with any automated clearinghouse transfer of funds for the benefit of
such Grantor.
"Pledged Investment Property" means, with respect to each Grantor, the
Investment Property of such Grantor listed on Schedule 3.9 hereto.
"Pledged Partnership/LLC Interests" means, with respect to any
Grantor, the entire partnership interest, membership interest or limited
liability company interest, as applicable, of such Grantor in each partnership,
limited partnership or limited liability company owned thereby listed on
Schedule 3.9, including, without limitation, such Grantor's 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 Grantor's 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.
"Restricted Securities Collateral" has the meaning assigned thereto in
Section 5.3.
"Securities Act" means the Securities Act of 1933, including all
amendments thereto and regulations promulgated thereunder.
3
"Security Interests" 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.
SECTION 18.3 Other Definitional Provisions. Terms defined in the
Credit Agreement and not otherwise defined herein shall have the meaning
assigned thereto in the Credit Agreement. With reference to this Agreement and
each other Loan Document, unless otherwise specified herein or in such other
Loan Document: (a) the definitions of terms herein shall apply equally to the
singular and plural forms of the terms defined, (b) whenever the context may
require, any pronoun shall include the corresponding masculine, feminine and
neuter forms, (c) the words "include", "includes" and "including" shall be
deemed to be followed by the phrase "without limitation", (d) the word "will"
shall be construed to have the same meaning and effect as the word "shall", (e)
any definition of or reference to any 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),
(f) any reference herein to any Person shall be construed to include such
Person's permitted successors and assigns, (g) the words "herein", "hereof" and
"hereunder", and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (h) 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, (i) the words "asset" and "property" 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,
(j) the term "documents" includes any and all instruments, documents,
agreements, certificates, notices, reports, financial statements and other
writings, however evidenced, whether in physical or electronic form, (k) in the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including;" the words "to" and "until" each mean
"to but excluding;" and the word "through" means "to and including", (l) Section
headings herein and in the other Loan Documents are included for convenience of
reference only and shall not affect the interpretation of this Agreement or any
other Loan Document and (m) where the context requires, terms relating to the
Collateral or any part thereof, when used in relation to a Grantor, shall refer
to such Grantor's Collateral or the relevant part thereof.
ARTICLE XIX
SECURITY INTEREST
SECTION 19.1 Grant of Security Interest. Each Grantor hereby grants,
pledges and collaterally assigns to the Administrative Agent, for the ratable
benefit of itself and the Lenders, a security interest in, all of such Grantor's
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 "Collateral"), 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:
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(a) all Accounts;
(b) all Deposit Accounts (other than Excluded Deposit Accounts);
(c) all Pledged Investment Property;
(d) all Pledged Partnership/LLC Interests;
(e) all General Intangibles related to any of the Pledged Investment
Property and the Pledged Partnership/LLC Interests;
(f) all books and records pertaining to the Collateral; and
(g) to the extent not otherwise included, all Proceeds and products of any
and all of the foregoing and all collateral security and Supporting Obligations
(as now or hereafter defined in the UCC) given by any Person with respect to any
of the foregoing.
provided, that (i) any Security Interest on any Capital Stock or other
ownership interests issued by any Foreign Subsidiary shall be limited to 65% (or
such lesser percentage as may then be necessary to avoid material adverse tax
consequences) of all issued and outstanding shares of all classes of Capital
Stock of such Foreign Subsidiary, (ii) the Security Interests granted herein
shall not extend to, and the term "Collateral" shall not include, any rights
under any lease, contract or agreement to the extent that the granting of a
security interest therein is specifically prohibited in writing by, or would
constitute an event of default under or would grant a party a termination right
under, any agreement governing such right unless (x) such prohibition is not
enforceable or is otherwise ineffective under Applicable Law or (y) with respect
to any Government Contract, such prohibition is conditioned upon compliance with
the Assignment of Claims Act (or analogous state Applicable Law).
Notwithstanding the foregoing clause (a) of this Section 2.1, the
payment and performance of the Obligations shall not be secured by any Hedging
Agreement between any Grantor and the Administrative Agent or any Lender or any
Affiliate of the Administrative Agent or any Lender.
SECTION 19.2 Grantors Remain Liable. Anything herein to the contrary
notwithstanding: (a) 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) 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) neither the Administrative Agent nor any Lender 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 Lender 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) neither the Administrative Agent nor any Lender shall have
any liability in contract or tort for any Grantor's acts or omissions.
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ARTICLE XX
REPRESENTATIONS AND WARRANTIES
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 Lender that:
SECTION 20.1 Existence. Such Grantor is duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation or formation, has the power and authority to own 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 except in jurisdictions where the failure
to be so qualified or in good standing could not reasonably be expected to have
a Material Adverse Effect.
SECTION 20.2 Authorization of Agreement; No Conflict. Such 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 duly authorized officers
or other representatives of such Grantor and this Agreement constitutes the
legal, valid and binding obligation of such Grantor, 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 that affect the enforcement of creditors'
rights and the availability of equitable remedies. The execution, delivery and
performance by such Grantor of this Agreement will not, by the passage of time,
the giving of notice or otherwise, (i) violate any Applicable Law relating to
such Grantor where such violation of Applicable Law could reasonably be expected
to have a Material Adverse Effect, (ii) conflict with, result in a breach of or
constitute a default under any indenture, agreement or other instrument to which
such Grantor is a party or by which any of its properties may be bound or any
Governmental Approval relating to such Grantor that could reasonably be expected
to have a Material Adverse Effect, and (iii) result in or require the creation
or imposition of any Lien upon or with respect to any property now owned or
hereafter acquired by any Grantor other than Permitted Liens.
SECTION 20.3 Consents. No approval, consent, exemption, authorization
or other action by, or notice to, or filing with, or other act in respect of, an
arbitrator or Governmental Authority, and no consent of any other Person, is
required in connection with the execution, delivery, performance, validity or
enforceability of this Agreement other than consents, authorizations, filings or
other acts or consents that have been obtained or made or for which the failure
to obtain or make could not reasonably be expected to have a Material Adverse
Effect and other than (x) as may be required by laws affecting the offering and
sale of securities generally and (y) filings under the UCC and/or the Assignment
of Claims Act.
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SECTION 20.4 Perfected First Priority Liens. Each financing statement
naming a Grantor as a debtor is in appropriate form for filing in the
appropriate filing offices of the states specified on Schedule 3.6. The Security
Interests granted pursuant to this Agreement constitute valid security interests
in all of the Collateral in favor of the Administrative Agent, for the ratable
benefit of itself and the Lenders, as collateral security for the Obligations.
When UCC financing statements containing an adequate description of the
Collateral shall have been filed in the offices specified in Schedule 3.6, the
Security Interests granted pursuant to this Agreement will constitute perfected
security interests in all right, title and interest of such Grantor in the
Collateral to the extent that a security interest therein may be perfected by
filing pursuant to the UCC, prior to all other Liens and rights of others
therein except for Permitted Liens. When each control agreement has been
executed and delivered to the Administrative Agent, the Security Interests
granted pursuant to this Agreement will constitute perfected security interests
in all right, title and interest of the Grantors in the Deposit Accounts subject
thereto, prior to all other Liens and rights of others therein and subject to no
adverse claims except for Permitted Liens.
SECTION 20.5 Title, No Other Liens. Except for the Security Interests,
such Grantor owns each item of its Collateral free and clear of any and all
Liens or claims other than Permitted Liens. No financing statement under the UCC
of any state which names such 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 Lenders, pursuant to this
Agreement or in connection with Permitted Liens. No Collateral is in the
possession or Control of any Person asserting any claim thereto or security
interest therein, except that (a) the Administrative Agent or its designee may
have possession or Control of Collateral as contemplated hereby and (b) a
depositary bank may have Control of a Deposit Account owned by a Grantor at such
depositary bank subject to the terms of any Deposit Account control agreement.
SECTION 20.6 State of Organization; other Information.
(a) The exact legal name of each Grantor is set forth on Schedule 3.6.
(b) Each Grantor is a Registered Organization organized under the laws of
the state identified on Schedule 3.6 under such Grantor's name. The taxpayer
identification number and Registered Organization number of each Grantor is set
forth on Schedule 3.6 under such Grantor's name.
(c) The mailing address, chief place of business, chief executive office
and office where each Grantor keeps its books and records relating to the
Accounts, Pledged Investment Property and Pledged Partnership/LLC Interests in
which it has any interest are located at the locations specified on Schedule 3.6
under such Grantor's name. No Grantor has any other places of business except
those separately set forth on Schedule 3.6 under such Grantor's name. No Grantor
does business or has done business during the past five years under any trade
name or
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fictitious business name except as disclosed on Schedule 3.6 under such
Grantor's name. Except as disclosed on Schedule 3.6 under such Grantor's name,
no Grantor has acquired assets from any Person, other than assets acquired in
the ordinary course of such Grantor's business, during the past five years.
SECTION 20.7 Accounts. Each existing Account that is material to the
value of the Accounts constitutes, and each hereafter arising Account that is
material to the value of the Accounts will constitute, the legally valid and
binding obligation of the applicable Account Debtor. 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 Agent's 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. No material Account is, nor will any hereafter arising
material Account be, evidenced by a promissory note or other Instrument, other
than a check, that has not been pledged to the Administrative Agent in
accordance with the terms hereof.
SECTION 20.8 Deposit Accounts. As of the date hereof, all Deposit
Accounts (including, without limitation, cash management accounts that are
Deposit Accounts) other than Excluded Deposit Accounts, including the: (a) owner
of the account, (b) name and address of financial institution where such
accounts are located, (c) account numbers and (d) purpose or use of such
account, owned by any Grantor are listed on Schedule 3.8.
SECTION 20.9 Pledged Investment Property; Pledged Partnership/LLC
Interests.
(a) As of the date hereof, all Pledged Investment Property (including,
without limitation, Securities Accounts and cash management accounts that cover
Pledged Investment Property) and all Pledged Partnership/LLC Interests owned by
any Grantor is listed on Schedule 3.9.
(b) All Pledged Investment Property and all Pledged Partnership/LLC
Interests issued by any Issuer to any Grantor (i) have been duly and validly
issued and, if applicable, are fully paid and nonassessable, (ii) are
beneficially owned of record by such Grantor and (ii) unless otherwise set forth
on Schedule 3.9, constitute all the issued and outstanding shares of all classes
of the Capital Stock of such Issuer issued to such Grantor.
(c) None of the Pledged Partnership/LLC Interests (i) are traded on a
securities exchange or in securities markets, (ii) by their terms expressly
provide that they are Securities governed by Article 8 of the UCC, (iii) are
Investment Company Securities or (iv) are held in a Securities Account.
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SECTION 20.10 Government Contracts. Neither the Borrower nor any other
Grantor (nor, to the knowledge of any Grantor, any other party thereto) is in
breach of or in default under any Government Contract in any material respect.
No notice of any material dispute, holdback, claim of set-off or other claim,
suspension, debarment, cure notice, show cause notice or notice of termination
for default has been issued by any Governmental Authority to any Grantor, and
neither the Borrower nor any other Grantor is a party to any pending, or to the
Borrower's or any Grantor's knowledge, threatened material dispute, holdback,
claim of set-off or other claim, suspension, debarment, or termination for
default issued by any Governmental Authority.
ARTICLE XXI
COVENANTS
Until the Obligations shall have been paid in full and the Commitments
terminated, unless consent has been obtained in the manner provided for in
Section 7.1, each Grantor covenants and agrees that:
SECTION 21.1 Maintenance of Perfected Security Interest; Further
Information.
(a) Such Grantor shall maintain the Security Interest created by this
Agreement as a first priority perfected Security Interest (except for Permitted
Liens) and shall defend such Security Interest against the claims and demands of
all Persons whomsoever (other than Permitted Liens).
(b) Such Grantor will furnish to the Administrative Agent, upon the
reasonable request of the Administrative Agent or any Lender from time to time,
statements and schedules further identifying and describing the assets and
property of such Grantor constituting Collateral and such other reports in
connection therewith as the Administrative Agent may reasonably request, all in
reasonable detail.
SECTION 21.2 Maintenance of Insurance.
(a) Such Grantor will maintain, with financially sound and reputable
companies, insurance policies as required by the Credit Agreement.
(b) All general liability insurance shall (i) name the Administrative Agent
for the ratable benefit of itself and the Lenders as an additional insured as
its interests may appear, (ii) provide that no cancellation, material reduction
in amount or material change in coverage thereof shall be effective until at
least thirty (30) days after receipt by the Administrative Agent of written
notice thereof and (iii) be reasonably satisfactory in all other respects to the
Administrative Agent.
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(c) Upon the request of the Administrative Agent from time to time, such
Grantor shall deliver to the Administrative Agent periodic information from a
reputable insurance broker with respect to the insurance referred to in this
Section 4.2.
SECTION 21.3 Changes in Locations; Changes in Name or Structure. No
Grantor will, except upon thirty (30) days' prior written notice to the
Administrative Agent and delivery to the Administrative Agent of (a) 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) if applicable, a written supplement to the Schedules
of this Agreement:
permit any Deposit Account (other than Excluded Deposit Accounts) to
be held by or at a depositary bank other than the depositary bank that held such
Deposit Account as of the date hereof as set forth on Schedule 3.8;
change its jurisdiction of organization or the location of its chief
executive office from that identified on Schedule 3.6; or
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.
SECTION 21.4 Required Notifications. Such Grantor shall promptly
notify the Administrative Agent, in writing, of: (a) any Lien (other than the
Security Interests or Permitted Liens) on any of its Collateral that would
adversely affect the ability of the Administrative Agent to exercise any of its
remedies hereunder, (b) the occurrence of any other event that could reasonably
be expected to have a Material Adverse Effect with reference to the aggregate
value of the Collateral or the Security Interests, (c) the acquisition or
ownership by such Grantor of any (i) Deposit Account (other than Excluded
Deposit Accounts) or (ii) Pledged Investment Property and Pledged
Partnership/LLC Interests after the date hereof, and (e) 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.
SECTION 21.5 Delivery Covenants. Such Grantor will deliver and pledge
to the Administrative Agent, for the ratable benefit of itself and the Lenders,
all Pledged Investment Property and Pledged Partnership/LLC Interests evidenced
by a certificate owned or held by such Grantor, in each case, together with an
Effective Endorsement and Assignment and any instrument(s) evidencing Supporting
Obligations, as applicable, unless such delivery and pledge has been waived in
writing by the Administrative Agent.
10
SECTION 21.6 Control Covenants. Such Grantor shall instruct (and
otherwise use its commercially reasonable efforts to cause) each depositary bank
(other than the Administrative Agent) holding a Deposit Account (other than
Excluded Deposit Accounts) owned by such Grantor, to execute and deliver a
control agreement sufficient to provide the Administrative Agent with Control of
such Deposit Account and otherwise in form and substance reasonably satisfactory
to the Administrative Agent (any such depositary bank executing and delivering
any such control agreement, a "Controlled Depositary"). In the event any such
depositary bank refuses to execute and deliver such control agreement, the
Administrative Agent, in its sole discretion, may require the applicable Deposit
Account to be transferred to the Administrative Agent. After the date hereof,
all Deposit Accounts will be maintained with the Administrative Agent or with a
Controlled Depository.
SECTION 21.7 Filing Covenants. Pursuant to Section 9-509 of the UCC
and any other Applicable Law, such 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 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 reasonably may determine is necessary, advisable or prudent
to ensure the perfection of the Security Interest in the Collateral granted
herein. 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. Grantor hereby
authorizes, ratifies and confirms all financing statements and other filing or
recording documents or instruments filed by Administrative Agent prior to the
date of this Agreement in accordance with the foregoing.
SECTION 21.8 Accounts.
(a) Other than in the ordinary course of business consistent with its past
practice, such Grantor will not amend, supplement, grant an extension, release,
discount, credit or modify any material Account in any manner that could
reasonably be likely to materially adversely affect the value thereof.
(b) Such 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.
(c) 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 such 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 Agent's request and at the expense of the relevant Grantor, such
Grantor shall
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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.
SECTION 21.9 Pledged Investment Property; Pledged Partnership/LLC
Interests.
(a) Without the prior written consent of the Administrative Agent, such
Grantor will not (i) vote to enable, or take any other action to permit, any
applicable Issuer to issue any Pledged Investment Property or Pledged
Partnership/LLC Interests, except for additional Pledged Investment Property or
Pledged Partnership/LLC Interests that will be subject to the Security Interest
granted herein in favor of the Administrative Agent, or (ii) except as permitted
by the Credit Agreement, enter into any agreement or undertaking restricting the
right or ability of such Grantor or the Administrative Agent to sell, assign or
transfer any Pledged Investment Property or Pledged Partnership/LLC Interests or
Proceeds thereof. Such Grantor will defend the Security Interest of the
Administrative Agent in and to the Pledged Investment Property and Pledged
Partnership/LLC Interests of such Grantor against the claims and demands of all
Persons whomsoever other than in respect of Permitted Liens.
(b) If such Grantor shall become entitled to receive or shall receive (i)
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 Capital
Stock issued by any Issuer, whether in addition to, in substitution of, as a
conversion of, or in exchange for, any Pledged Investment Property, or otherwise
in respect thereof, or (ii) any sums paid upon or in respect of any Pledged
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
Lenders, hold the same in trust for the Administrative Agent and the Lenders,
segregated from other funds of such Grantor, and promptly deliver the same to
the Administrative Agent in accordance with the terms hereof.
SECTION 21.10 Government Contracts. Upon the occurrence of a Default
or an Event of Default, the Administrative Agent may deliver (i) all Assignment
Agreements and (ii) all Notices of Assignment to the applicable Governmental
Authority for each Government Contract, and the Grantors agree to use good faith
efforts to have such Notices of Assignment acknowledged in writing by the
appropriate Governmental Authority.
SECTION 21.11 Further Assurances. Upon the request of the
Administrative Agent and at the sole expense of such Grantor, such 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) with respect to Government Contracts, but
only after the occurrence and during the continuance of a Default or an Event of
Default, Assignment Agreements and Notices of Assignment, in form and substance
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the substantially similar to the documents set forth on Exhibit A-1 and Exhibit
A-2, respectively, duly executed by any Grantor party to such 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 (ii) all other 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.
ARTICLE XXII
REMEDIAL PROVISIONS
SECTION 22.1 General Remedies. If an Event of Default shall occur and
be continuing, the Administrative Agent, on behalf of the Lenders, 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 of 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 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, broker's board or office of the Administrative Agent or any Lender 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 all
warranties in connection with any sale or other disposition of the Collateral,
including, without limitation, all warranties of title, possession, quiet
enjoyment and the like. The Administrative Agent or any Lender 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 in any Grantor,
which right or equity is hereby waived and released. Each Grantor further
agrees, at the Administrative Agent's request and if applicable, to assemble the
Collateral and make it available to the Administrative Agent at places which the
Administrative Agent shall reasonably select, whether at such Grantor's 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 Lender 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 Lender, 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) days before such sale
or other disposition.
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SECTION 22.2 Specific Remedies.
(a) The Administrative Agent hereby authorizes each Grantor to collect such
Grantor's Accounts; 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.
(b) Upon the occurrence and during the continuance of an Event of Default:
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 satisfactory to the Administrative Agent) its Account Debtors that
such Accounts have been assigned to the Administrative Agent, for the ratable
benefit of itself and the Lenders;
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 satisfactory to the
Administrative Agent;
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), subject to the terms of any Permitted Liens, such
Grantor agrees that it will, within one (1) Business Day of such receipt,
deposit all such items of payment into the Collateral Account or in a Deposit
Account at a 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 Lenders and as property of the Administrative
Agent and Lenders, separate from the other funds of such Grantor, and the
Administrative Agent shall have the right in 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 Section 5.4;
the Administrative Agent shall have the right to receive any and all
cash dividends, payments or distributions made in respect of any Pledged
Investment Property or Pledged Partnership/LLC Interests or other Proceeds paid
in respect of any Pledged Investment Property or Pledged Partnership/LLC
Interests, and any or all of any Pledged Investment Property or Pledged
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) all voting, corporate and other rights pertaining to such
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Pledged Investment Property or Pledged Partnership/LLC Interests at any meeting
of shareholders, partners or members of the relevant Issuers and (B) any and all
rights of conversion, exchange and subscription and any other rights, privileges
or options pertaining to such Pledged Investment Property or Pledged
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
Pledged Investment Property or Pledged 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 Pledged Investment Property or Pledged
Partnership/LLC Interests, and in connection therewith, the right to deposit and
deliver any and all of the Pledged Investment Property or Pledged
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 Lenders 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 Pledged Investment Property or Pledged Partnership/LLC Interests to (i)
comply with any instruction received by it from the Administrative Agent in
writing that (A) states that an Event of Default has occurred and is continuing
and (B) 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 following receipt of such
notice and prior to notice that such Event of Default is no longer continuing,
and (ii) except as otherwise expressly permitted hereby, pay any dividends,
distributions or other payments with respect to any Pledged Investment Property
or Pledged Partnership/LLC Interests directly to the Administrative Agent; and
the Administrative Agent shall be entitled to (but shall not be
required to) do all other acts that 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.
(c) 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 Agent's intent to exercise its corresponding rights pursuant to
Section 5.2(b), each Grantor shall be permitted to receive all cash dividends,
payments or other distributions made in respect of any Pledged Investment
Property and Pledged Partnership/LLC Interests to the extent permitted in the
Credit Agreement, and to exercise all voting and other corporate, company and
partnership rights with respect to any Pledged Investment Property and Pledged
Partnership/LLC Interests; provided that no vote shall be cast or other
corporate, company and partnership right exercised or other action taken that,
in the Administrative Agent's reasonable judgment, would impair the Collateral
in any material respect or which would result in a Default or Event of Default
under any provision of the Credit Agreement, this Agreement or any other Loan
Document.
15
(d) Unless an Event of Default has occurred and is continuing, the
Administrative Agent shall not send any notice under any control agreement to a
Controlled Depository that restricts any Grantor's access to the Deposit
Accounts under such control agreement.
SECTION 22.3 Registration Rights.
(a) If 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 "Restricted Securities Collateral"), the relevant Grantor
will cause each applicable Issuer (and the officers and directors thereof) to
(i) execute and deliver all such instruments and documents, and do or cause to
be done all such other acts as may be, in the 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) use its commercially reasonable 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 Issuer (and the officers and directors thereof) to comply
with the provisions of the securities or "Blue Sky" 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 Section II (a)
of the Securities Act.
(b) 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 who 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 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.
(c) Each Grantor agrees to use its commercially reasonable 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 Section
5.3 will cause irreparable injury to the Administrative Agent and the Lenders,
that
16
the Administrative Agent and the Lenders have no adequate remedy at law in
respect of such breach and, as a consequence, that each and every covenant
contained in this Section 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 has occurred under the Credit Agreement.
SECTION 22.4 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
Agent's election, the Administrative Agent may apply all or any part of the
Collateral or any Proceeds of the Collateral in payment in whole or in part to
the Obligations (after deducting all reasonable costs and expenses of every kind
incurred in connection therewith or incidental to the care or safekeeping of any
of the Collateral or in any way relating to the Collateral or the rights of the
Administrative Agent and the Lenders hereunder, including, without limitation,
reasonable attorneys' fees and disbursements) in accordance with Section 13.4 of
the Credit Agreement. Only after (i) the payment by the Administrative Agent of
any other amount required by any provision of law, including, without
limitation, Section 9-610 and Section 9-615 of the UCC and (ii) the payment in
full of the Obligations and the termination of the Commitments, shall the
Administrative Agent account for the surplus, if any, to any Grantor, or to
whomever may be lawfully entitled to receive the same (if such Person is not a
Grantor).
SECTION 22.5 Waiver, Deficiency. Each Grantor hereby waives, to the
extent permitted by Applicable Law, all rights of redemption, appraisement,
valuation, stay, extension or moratorium now or hereafter in force under any
Applicable Law in order to prevent or delay the enforcement of this Agreement or
the absolute sale of the Collateral or any portion thereof. Each Grantor shall
remain liable for any deficiency if the proceeds of any sale or other
disposition of the Collateral are insufficient to pay its Obligations and the
fees and disbursements of any attorneys employed by the Administrative Agent or
any Lender to collect such deficiency.
ARTICLE XXIII
THE ADMINISTRATIVE AGENT
SECTION 23.1 Administrative Agent's Appointment as Attorney-In-Fact.
(a) Effective upon the occurrence and during the continuance of an Event of
Default, 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 that may be necessary or desirable to accomplish
the purposes of this Agreement, and, without
17
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 during the continuation of an Event of Default:
in the name of such Grantor or its own name, or otherwise, take
possession of and indorse and collect any checks, drafts, notes, acceptances or
other instruments for the payment of moneys due under any Account 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 with respect to any other Collateral whenever payable;
pay or discharge taxes and Liens levied or placed on or threatened
against the Collateral, effect any insurance called for by the terms of this
Agreement and pay all or any part of the premiums therefor and the costs
thereof;
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
(A) 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) 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) 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; (D) defend any suit, action or
proceeding brought against such Grantor with respect to any Collateral; (E)
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; and (F) 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 Agent's option and such
Grantor's expense, at any time, or from time to time, all acts and things that
the Administrative Agent deems necessary to protect, preserve or realize upon
the Collateral and the Administrative Agent's and the Lenders' Security
Interests therein and to effect the intent of this Agreement, all as fully and
effectively as such Grantor might do.
(b) 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 Section
6.1(a).
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(c) 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 Base Rate 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.
(d) Each Grantor hereby ratifies all that said attorneys shall lawfully do
or cause to be done by virtue hereof in accordance with Section 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.
SECTION 23.2 Duty of Administrative Agent. The Administrative Agent's
sole duty with respect to the custody, safekeeping and physical preservation of
the Collateral in its possession, under Section 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. None of the Administrative Agent, any
Lender 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
Lenders hereunder are solely to protect the Administrative Agent's and the
Lenders' interests in the Collateral and shall not impose any duty upon the
Administrative Agent or any Lender to exercise any such powers. The
Administrative Agent and the Lenders 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.
SECTION 23.3 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 from or arising out of this Agreement shall, as between the
Administrative Agent and the Lenders, 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 Lenders 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 XXIV
MISCELLANEOUS
19
SECTION 24.1 Amendments in Writing. None of the terms or provisions of
this Agreement may be waived, amended, supplemented or otherwise modified except
in accordance with Section 13.2 of the Credit Agreement.
SECTION 24.2 Notices. All notices, requests and demands to or upon the
Administrative Agent or any Grantor hereunder shall be effected in the manner
provided for in Section 13.1 of the Credit Agreement.
SECTION 24.3 No Waiver by Course of Conduct, Cumulative Remedies.
Neither the Administrative Agent nor any Lender shall by any act (except by a
written instrument pursuant to Section 7.1), delay, indulgence, omission or
otherwise be deemed to have waived any right or remedy hereunder or to have
acquiesced in any Default or Event of Default. No failure to exercise, nor any
delay in exercising on the part of the Administrative Agent or any Lender, 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 Lender of any right or
remedy hereunder on any one occasion shall not be construed as a bar to any
right or remedy that the Administrative Agent or such Lender 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.
SECTION 24.4 Enforcement Expenses, Indemnification.
(a) Each Grantor agrees to pay or reimburse each Lender and the
Administrative Agent for all its costs and expenses incurred in connection with
enforcing or preserving any rights under this Agreement and the other Loan
Documents to which such Grantor is a party, (including, without limitation, in
connection with any workout, restructuring, bankruptcy or other similar
proceeding) including, without limitation, the reasonable fees and disbursements
of counsel to each Lender and of counsel to the Administrative Agent; provided
that, so long as no Default or Event of Default exists, such reimbursement for
legal fees and disbursements shall be limited to the fees and disbursements of
one primary counsel designated by the Administrative Agent plus the fees of any
local and specialist counsel engaged by the Administrative Agent.
(b) Each Grantor agrees to pay, and to save the Administrative Agent and
the Lenders 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, other
than Excluded Taxes (in each case, subject to Section 4.11 of the Credit
Agreement) that 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.
20
(c) Each Grantor agrees to pay, and to save the Administrative Agent and
the Lenders 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 the Borrower would be required to do so pursuant to
Section 13.3 of the Credit Agreement.
(d) The agreements in this Section 7.4 shall survive termination of the
Revolving Credit Commitments and repayment of the Obligations and all other
amounts payable under the Credit Agreement and the other Loan Documents.
SECTION 24.5 Waiver of Jury Trial. EACH GRANTOR HEREBY 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 OTHER THEORY). EACH
GRANTOR 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) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE
OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.
SECTION 24.6 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 Agreement), the Administrative Agent and the Lenders 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 Section 7.1).
SECTION 24.7 Set-Off. If an Event of Default shall have occurred and
be continuing, each Lender, the Issuing Lender, the Swingline 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, the Issuing Lender, the Swingline
Lender or any such Affiliate to or for the credit or the account of a Grantor
against any and all of the obligations of such Grantor now or hereafter existing
under this Agreement or any other Loan Document to such Lender, the Issuing
Lender or the Swingline Lender, irrespective of whether or not such Lender, the
Issuing Lender
21
or the Swingline Lender shall have made any demand under this Agreement or any
other Loan Document and although such obligations of such Grantor may be
contingent or unmatured or are owed to a branch or office of such Lender, the
Issuing Lender or the Swingline Lender different from the branch or office
holding such deposit or obligated on such indebtedness. The rights of each
Lender, the Issuing Lender, the Swingline Lender and their respective Affiliates
under this Section are in addition to other rights and remedies (including other
rights of setoff) that such Lender, the Issuing Lender, the Swingline Lender or
their respective Affiliates may have. Each Lender, the Issuing Lender and the
Swingline Lender agrees to notify such Grantor 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.
SECTION 24.8 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), and all of said counterparts taken together shall be
deemed to constitute one and the same instrument.
SECTION 24.9 Severability. Any provision of this Agreement or any
other Loan Document that 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.
SECTION 24.10 Section Headings. 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.
SECTION 24.11 Integration. This Agreement and the other Loan Documents
represent the entire agreement of the Grantors, the Administrative Agent and the
Lenders with respect to the subject matter hereof and thereof, and there are no
promises, undertakings, representations or warranties by the Administrative
Agent or any Lender relative to subject matter hereof and thereof not expressly
set forth or referred to herein or in the other Loan Documents.
SECTION 24.12 Governing Law. This Agreement, unless otherwise
expressly set forth herein, shall be governed by, and construed in accordance
with, the laws of the State of New York without reference to the conflicts or
choice of law principles thereof, other than such principles that are stated in
Section 5-1401 and 5-1402 of the General Obligations Law of the State of New
York.
SECTION 24.13 Consent to Jurisdiction.
22
(a) Each Grantor irrevocably and unconditionally submits, for itself and
its property, to the nonexclusive jurisdiction of the courts of the State of New
York sitting in the Borough of Manhattan and of the United States District Court
of the Borough of Manhattan, 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 or any Lender may otherwise have to bring any
action or proceeding relating to this Agreement or any other Loan Document
against any Grantor or its properties in the courts of any jurisdiction.
SECTION 24.14 Waiver of Venue.
(a) Each Grantor 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 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.
SECTION 24.15 Service of Process.
(a) Each party hereto irrevocably consents to service of process in the
manner provided for notices in Section 13.1 of the Credit Agreement. Nothing in
this Agreement will affect the right of any party hereto to serve process in any
other manner permitted by Applicable Law.
SECTION 24.16 Acknowledgements.
(a) Each Grantor hereby acknowledges that: (i) it has been advised by
counsel in the negotiation, execution and delivery of this Agreement and the
other Loan Documents to which it is a party, (ii) neither the Administrative
Agent nor any Lender has any fiduciary relationship with or duty to any Grantor
arising out of or in connection with this Agreement or any of the other Loan
Documents, and the relationship between the Grantors, on the one hand, and the
Administrative Agent and Lenders, on the other hand, in connection herewith or
therewith is solely that of debtor and creditor, and (iii) no joint venture is
created hereby or by the other Loan Documents or otherwise exists by virtue of
the transactions contemplated hereby or thereby among the Lenders or among the
Grantors and the Lenders.
(b) 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
23
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.
SECTION 24.17 Additional Grantors. Each Restricted Subsidiary of the
Borrower that is required to become a party to this Agreement pursuant to
Section 8.11 of the Credit Agreement shall become a Grantor for all purposes of
this Agreement upon execution and delivery by such Restricted Subsidiary of a
joinder agreement in form and substance satisfactory to the Administrative
Agent.
SECTION 24.18 Releases.
(a) At such time as the Obligations (except for contingent Obligations that
expressly survive the termination of this Agreement or any other Loan Document)
shall have been paid in full and the Revolving Credit Commitments have been
terminated, the Collateral shall be released from the Liens and Security
Interests 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
(b) 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 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) 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 and the other Loan Documents.
[Signature Pages Follow]
24
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.
GRANTORS:
Corrections Corporation of America
By:
------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Chief Executive Officer
CCA of Tennessee, LLC
Prison Realty Management, Inc.
Technical and Business Institute of
America, Inc.
CCA International, Inc.
CCA Properties of America, LLC
CCA Properties of Arizona, LLC
CCA Properties of Tennessee, LLC
CCA Western Properties, Inc.
By:
------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Chief Executive Officer
CCA Properties of Texas, L.P.
By:
------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Chief Executive Officer, CCA
Properties of America, LLC,
as General Partner
TransCor America, LLC
By:
------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Vice President, Treasurer
[Signature Pages Continue]
[Collateral Agreement - Corrections Corporation of America]
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Administrative Agent
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
[Collateral Agreement - Corrections Corporation of America]
EXHIBIT A-1
to
Collateral Agreement
FORM OF ASSIGNMENT OF GOVERNMENT CONTRACT
ASSIGNMENT
(Government Contract)
ASSIGNMENT (this "Agreement"), dated as of __________ __, _____ by and
among [CONTRACTING PARTY], a __________, with its chief executive offices at
__________ (the "Assignor"), in favor of Wachovia Bank, National Association, as
Administrative Agent (the "Assignee") for the ratable benefit of the banks and
other financial institutions (the "Lenders") from time to time parties to the
Credit Agreement, dated as of February 3, 2006 (as amended, restated,
supplemented or otherwise modified from time to time, the "Credit Agreement"),
by and among Corrections Corporation of America (the "Borrower"), the Lenders
and the Administrative Agent.
STATEMENT OF PURPOSE
Pursuant to the Credit Agreement, the Lenders have agreed to make
certain Extensions of Credit to the Borrower upon the terms and subject to the
conditions set forth therein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, and to
induce the Assignee and the Lenders to enter into the Credit Agreement and to
induce the Lenders to make their respective Extensions of Credit thereunder, the
Assignor hereby agrees with the Assignee, for the ratable benefit of itself and
the Lenders, as follows:
SECTION 1. Assignment. The Assignor hereby sells, assigns and
transfers to the Assignee, for the ratable benefit of itself and the Lenders,
all of the Assignor's rights, title and interest in and to all moneys due and to
become due from the United States of America, or from any Agency or Department
thereof, together with all rights to receive the same, under a certain [INSERT
THE SPECIFIC NAME OF THE CONTRACT BEING ASSIGNED], dated as of __________ (as
amended, restated, supplemented or otherwise modified from time to time, the
"Contract"), under the Contract No. [INSERT APPROPRIATE CONTRACT NUMBER] between
the United States of America acting through [INSERT NAME OF THE APPLICABLE
AGENCY, DEPARTMENT, INSTRUMENTALITY] and the Assignor, including any letter of
intent, letter of award, letter of acceptance of bid or proposal, informal or
incomplete contract or agreement, order, authorization to commence performance
or similar instrument or communication made or received by the Assignor in
anticipation of or in connection with the Contract.
SECTION 2. Direction of Payment. The Assignor hereby authorizes and
directs the United States of America to make all payments due under the Contract
directly to the Assignee, in accordance with any payment instructions received
therefrom, by checks or other orders payable to the order of the Assignee, and
constitutes and appoints the Assignee its true and lawful attorney, irrevocably
with full power of substitution for it, in its name or in the name of the
Assignor or otherwise, to ask, require, demand and receive and give acquittance
for any and all said monies due or to become due, and to endorse the name of the
Assignor on any checks, drafts or other orders for the payment of money payable
to the Assignor in payment thereof.
SECTION 3. Representations and Warranties. The Assignor represents and
warrants that: (a) it is the lawful owner of all rights under the Contract; (b)
it has good right to assign same in accordance with the terms and conditions
thereof; (c) its rights under such Contract are free from all liens and
encumbrances except as permitted by the Credit Agreement; and (d) it will
warrant and defend such Contract against the lawful claims and demands of all
persons other than in respect of Permitted Liens (as defined in the Credit
Agreement).
SECTION 4. Covenants. The Assignor hereby agrees (a) that, if any
payments under the Contract shall be made to the Assignor, it will receive and
hold the same in trust for the Assignee and will forthwith upon receipt deliver
the same to the Assignee in the identical form of payment received by the
Assignor; and (b) that it will execute and deliver all such further instruments
and do all such further acts and things as the Assignee may reasonably request
or as shall be necessary or desirable to further and more perfectly assure to
the Assignee its rights under the Contract.
[Signature Pages Follow]
IN WITNESS WHEREOF, the parties hereto have caused this Assignment to
be executed under seal by their duly authorized officers, all as of the day and
year first written above.
[CORPORATE SEAL] [NAME OF ASSIGNOR]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
ATTEST:
By:
---------------------------------
Name:
-------------------------------
Title: Secretary
STATE OF
----------------------------
COUNTY OF
---------------------------
On the _______ day of _______________, _______ before me personally
appeared ____________________ to me known, who, being by me duly sworn, did say
that s/he is the ____________________ of ____________________; and that s/he
signed her/his name thereto by her/his free act and deed and acknowledged the
said Assignment to be the free act and deed of said corporation.
[Notarial Seal] ----------------------------------------
Notary Public
My Commission Expires:
-------------------------------------
EXHIBIT A-2
to
Collateral Agreement
FORM OF NOTICE OF ASSIGNMENT OF GOVERNMENT CONTRACT
NOTICE OF ASSIGNMENT
Dated as of: _______________
TO: [INSERT COMPLETE NAME AND ADDRESS OF APPROPRIATE CONTRACTING ENTITY]
Attention: [INSERT NAME OF CONTRACTING OFFICER]
Reference is made to the [INSERT THE SPECIFIC NAME OF THE CONTRACT
BEING ASSIGNED], dated as of __________, _____ (as amended, restated,
supplemented or otherwise modified from time to time, the "Contract"), under
Contract No. [INSERT APPROPRIATE CONTRACT NUMBER] between the United States of
America acting through [INSERT NAME OF THE APPLICABLE AGENCY, DEPARTMENT,
INSTRUMENTALITY] and [INSERT NAME OF ASSIGNOR], a __________ corporation, with
its chief executive offices at __________ (the ("Assignor").
Moneys due or to become due under the Contract have been assigned to
the undersigned under the provisions of the Assignment of Claims Act of 1940, as
amended, 31 U.S.C. 3727, 41 U.S.C. 15.
Attached hereto is a true copy of the Assignment Agreement, dated as
of __________ __, _____ executed by the Assignor in favor of Wachovia Bank,
National Association, as Administrative Agent (the "Assignee") for the ratable
benefit of the banks and other financial institutions (the "Lenders") from time
to time parties to the Credit Agreement, dated as of February __, 2006 (as
amended, restated, supplemented or otherwise modified from time to time, the
"Credit Agreement"), by and among the Lenders, Corrections Corporation of
America and the Assignee.
Payments due or to become due under the Contract should be made to the
Assignee.
Please return to the undersigned the three enclosed copies of this
Notice of Assignment with appropriate notations showing the date and hour of
receipt, and signed by the person acknowledging receipt on behalf of the
addressee. Please mail the three copies of this Notice of Assignment and all
inquiries and correspondence regarding this matter to the address specified on
the signature page hereto.
[Signature Page Follows]
Very truly yours,
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Administrative Agent,
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Address of Administrative Agent:
Xxxxxxxxx Xxxxx, XX-0
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Syndication Agency Services
[Acknowledgement Follows]
ACKNOWLEDGEMENT
Receipt of the foregoing Notice of Assignment and Assignment dated as
of __________, _____, from Wachovia Bank, National Association to the
undersigned, attached thereto (collectively, the "Assignment Documents"), is
hereby acknowledged. The Assignment Documents were received at _______ (a.m.)
(p.m.) on ______________, _____.
[INSERT NAME OF U.S. GOVERNMENT
CONTRACTING ENTITY]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
On behalf of:
----------------------------------------
SCHEDULE 3.6
to
Collateral Agreement
Exact Legal Name; Jurisdiction of Organization; Taxpayer Identification Number;
Registered Organization Number; Mailing Address; Chief Executive Office and
other Locations
SCHEDULE 3.8
to
Collateral Agreement
Deposit Accounts
Address of Financial
Grantor Financial Institution Account Number Institution Account Purpose
------- --------------------- -------------- -------------------- ---------------
SCHEDULE 3.9
to
Collateral Agreement
Pledged Investment Property and Pledged Partnership/LLC Interests
Pledged Investment Property:
[Grantor]:
Percentage of
Ownership Interests of
Name of Issuer Class and Series Par Value Certificate Number such Class and Series
-------------- ---------------- --------- ------------------ ----------------------
Pledged Partnership/LLC Interests:
[Grantor]:
Name of Issuer
(including identification of Certificate Number Percentage of Ownership
type of entity) Type of Ownership Interest (if any) Interests of such Type
---------------------------- -------------------------- ------------------ -----------------------
SCHEDULES
to
Credit Agreement
dated as of February 3, 2006
by and among
Corrections Corporation of America,
as Borrower,
the Lenders party thereto,
as Lenders,
and
Wachovia Bank, National Association,
as Administrative Agent
Disclosure Schedules to Credit Agreement
SCHEDULE 1.1(A)
EXISTING LETTERS OF CREDIT
SEE ATTACHED.
SCHEDULE 1.1(B)
EXISTING LOANS, ADVANCES AND INVESTMENTS
See Item 4 on Schedule 6.1(l).
SCHEDULE 1.1(C)
BOOK VALUE OF DESIGNATED ASSETS
CITY STATE FACILITY NAME FAC. # NET BOOK VALUE
--------------- ------------- --------------------------------------- ------ --------------
1. San Diego California San Diego Correctional Facility
2. Walensburg Colorado Huerfano County Correctional Center
3. Xxxxxxx Georgia Coffee Correctional Center
4. Alamo Xxxxxxx Xxxxxxx Correctional Center
5. Tutweiler Mississippi Tallahatchie County Correctional Center
6. Shelby Montana Crossroads Correctional Center
7. Cushing Oklahoma Cimarron Correctional Facility
8. Holdenville Oklahoma Xxxxx Correctional Facility
9. Memphis Tennessee Shelby Training Center
10. Whiteville Tennessee Whiteville Correctional Center
11. Washington D.C. D.C. Correctional Treatment Facility
SCHEDULE 6.1(A)
JURISDICTIONS OF ORGANIZATION AND QUALIFICATION
1. CORRECTIONS CORPORATION OF AMERICA, a Maryland corporation
States/Jurisdictions of Qualification:
Arizona
California
Colorado
Connecticut
District of Columbia
Florida
Georgia
Kansas
Kentucky
Maryland
Minnesota
Mississippi
Montana
Nevada
New Hampshire
New Mexico
New York
Ohio
Oklahoma
Tennessee
2. CCA OF TENNESSEE, LLC., a Tennessee limited liability company
States/Jurisdictions of Qualification:
Arizona
California
Colorado
Connecticut
District of Columbia
Florida
Georgia
Idaho
Indiana
Kansas
Kentucky
Louisiana
Minnesota
Mississippi
Montana
Nevada
New Hampshire
New Jersey
New Mexico
North Carolina
Ohio
Oklahoma
Puerto Rico
Tennessee
Texas
Virginia
3. CCA PROPERTIES OF TEXAS, L.P., a Delaware limited partnership
States/Jurisdictions of Qualification:
Delaware
4. CCA WESTERN PROPERTIES, INC., a Delaware corporation
States/Jurisdictions of Qualification:
Delaware
5. CCA PROPERTIES OF AMERICA, LLC, a Tennessee limited liability company
States/Jurisdictions of Qualification:
California
Colorado
District of Columbia
Florida
Georgia
Indiana
Kansas
Kentucky
Minnesota
Mississippi
Montana
New Mexico
Ohio
Oklahoma
Tennessee
6. PRISON REALTY MANAGEMENT, INC., a Tennessee corporation
States/Jurisdictions of Qualification:
Tennessee
7. CCA INTERNATIONAL, INC., a Delaware corporation
States/Jurisdictions of Qualification:
Delaware
8. CCA PROPERTIES OF ARIZONA, LLC, a Tennessee limited liability company
States/Jurisdictions of Qualification:
Tennessee
9. CCA PROPERTIES OF TENNESSEE LLC, a Tennessee limited liability company
States/Jurisdictions of Qualification:
Tennessee
10. TECHNICAL AND BUSINESS INSTITUTE OF AMERICA, INC., a Tennessee corporation
States/Jurisdictions of Qualification:
Tennessee
11. TRANSCOR AMERICA, LLC, a Tennessee limited liability company
States/Jurisdictions of Qualification:
Alabama
Alaska
Arizona
Arkansas
California
Colorado
Connecticut
Delaware
Florida
Georgia
Hawaii
Idaho
Illinois
Indiana
Iowa
Kansas
Kentucky
Louisiana
Maine
Maryland
Massachusetts
Michigan
Minnesota
Mississippi
Missouri
Montana
Nebraska
Nevada
New Hampshire
New Jersey
New Mexico
New York
North Carolina
North Dakota
Ohio
Oklahoma
Oregon
Pennsylvania
Rhode Island
South Carolina
South Dakota
Tennessee
Texas
Utah
Vermont
Xxxxxxxx
Xxxxxxxxxx
West Virginia
Wisconsin
Wyoming
SCHEDULE 6.1(B)
SUBSIDIARIES AND CAPITALIZATION
1. CCA OF TENNESSEE, LLC
Equity Ownership - One hundred percent (100%) Corrections Corporation of
America.
2. CCA PROPERTIES OF TEXAS, L.P.
Equity Ownership - Corrections Corporation of America is the ninety-nine
percent (99%) limited partner and CCA Properties of America, LLC is the one
percent (1%) general partner.
3. CCA WESTERN PROPERTIES, INC.
Capitalization - 1,000 shares of Common Stock authorized, $0.01 par value
per share, of which 1,000 shares are outstanding and issued to Corrections
Corporation of America.
4. CCA PROPERTIES OF AMERICA, LLC
Equity Ownership - One hundred percent (100%) Corrections Corporation of
America.
5. PRISON REALTY MANAGEMENT, INC.
Capitalization - 1,000 shares of Common Stock authorized, no par value per
share, of which 1,000 shares are outstanding and issued to the Borrower.
6. CCA INTERNATIONAL, INC.
Capitalization - 3,000 shares authorized (2,500 shares are Common Stock,
$0.01 par value per share, and 500 shares are Preferred Stock, $0.01 par
value per share), of which 1,000 shares of Common Stock are outstanding and
issued to CCA of Tennessee, LLC.
7. TRANSCOR PUERTO RICO, INC.
Capitalization - 1,000 shares of Common Stock authorized, no par value per
share, of which 100 shares are outstanding and issued to CCA of Tennessee,
LLC.
8. CCA (UK) LTD.
Capitalization - The Share Capital is L100 divided into 100 shares of L1
each, of which 2 shares of Share Capital are outstanding and issued to CCA
of Tennessee, LLC.
9. CCA PROPERTIES OF ARIZONA, LLC
Equity Ownership - One hundred percent (100%) CCA Western Properties, Inc.
10. CCA PROPERTIES OF TENNESSEE, LLC
Equity Ownership - One hundred percent (100%) CCA of Tennessee, LLC.
11. TECHNICAL AND BUSINESS INSTITUTE OF AMERICA, INC.
Capitalization - 1,000 shares of Common Stock authorized, no par value per
share, of which 1,000 shares are outstanding and issued to CCA of
Tennessee, LLC.
12. TRANSCOR AMERICA, LLC
Equity Ownership - One hundred percent (100%) CCA of Tennessee, LLC.
13. AGECROFT PRISON MANAGEMENT, LTD.
Capitalization - The Share Capital is L50,000 divided into 50,000 shares of
L1 each, of which 1 share of Share Capital is issued to CCA (UK) Ltd. (50%
ownership interest).
SCHEDULE 6.1(I)
ERISA PLANS
1. Old Prison Realty's Non-Employee Trustees' Compensation Plan.
2. Old CCA's 1995 Employee Stock Incentive Plan, effective as of March 20,
1995.
3. Old CCA's Non-Employee Directors' Compensation Plan.
4. Correction Corporation of America's Amended and Restated 2000 Stock
Incentive Plan.
5. Amendment No. 1 to Amended and Restated Corrections Corporation of America
2000 Stock Incentive Plan.
SCHEDULE 6.1(L)
MATERIAL INDEBTEDNESS
1. $450.0 million in aggregate principal amount of 7.5% Senior Notes due 2011
2. $375.0 million in aggregate principal amount of 6.25% Senior Notes dues
2013
3. $150.0 million in aggregate principal amount of 6.75% Senior Notes due 2014
4. The Guaranty Obligations of the Borrower (in an amount not to exceed the
principal amount of the bonds, and all interest due thereunder) in favor of
First Union National Bank of Tennessee, as trustee ("Trustee"), under that
certain Trust Indenture dated as of January 1, 1997, as modified and
amended by that certain First Supplemental Trust Indenture dated April 1,
1997, to the issuance of bonds (the "Bonds") in the aggregate original
principal amount of $72.675 million by Xxxxxxxx County, Tennessee, for
which governmental entity the Borrower currently provides management
services at the Xxxxxxxx County Correctional Facility. Pursuant to said
Guaranty Obligations, the Borrower is obligated: (i) under that certain
Debt Services Deficits Agreement dated as of January 1, 1997, as modified
and amended by that certain First Amendment to Debt Service Deficits
Agreement dated April 1, 1997, to pay Trustee amounts necessary to pay any
debt service deficits incurred by Xxxxxxxx County (consisting of principal
and interest requirements); and (ii) in the event the State of Tennessee,
which is currently utilizing the facility, exercises its option to purchase
the correctional facility, to pay the difference between principal and
interest owed on the Bonds on the date set for the redemption of the Bonds
and amounts paid by the State of Tennessee for the facility and all other
funds on deposit with the trustee and available for redemption of the
Bonds. The outstanding balance due under the Bonds as of December 31, 2005
was approximately $54.9 million.
SCHEDULE 6.1(M)
LABOR AND COLLECTIVE BARGAINING AGREEMENTS
See attached.
SCHEDULE 6.1(U)
LITIGATION
None.
SCHEDULE 10.2
EXISTING LIENS
DEBTOR LOCATION SECURED PARTY FILE # COLLATERAL
------ -------- ------------- ------ ----------
Corrections AZ CCA Financial, Inc. 01152921 Leased equipment
Corporation of CA CCA Financial, LLC 0110060275 Leased equipment
America CO CCA Financial, LLC 20012016561 Leased equipment
CCA Financial, LLC 20012050068 Leased equipment
FL CCA Financial, LLC 200100047561 Leased equipment
GA CCA Financial, Inc. 0000-0000-000000 Leased equipment
First Union National Bank, 181111652 Contracts, plans and specs,
Trustee licenses, warranties, guaranties,
other general intangibles, etc.
relating to property in Xxxxxxxx
County, TN
First Union National Bank, 181111653 Contracts, plans and specs,
Trustee licenses, warranties, guaranties,
other general intangibles, etc.
relating to property in Xxxxxxxx
County, TN
North American Communication 181236349 Telecommunications equipment
Resource, Inc.
North American Communication 181238481 Telecommunications equipment
Resource, Inc.
MT CCA Financial, LLC 64433454 Leased equipment
NJ CCA Financial, LLC 2028973 Leased Equipment
DEBTOR LOCATION SECURED PARTY FILE # COLLATERAL
------ -------- ------------- ------ ----------
NM CCA Financial, LLC 010306010 Leased equipment
TN CCA Financial, Inc. 101011923 Leased equipment
CCA Financial, Inc. 101015005 Leased equipment
CCA Financial, LLC 101029961 Leased equipment
CCA Financial, LLC 201064024 Leased equipment
CCA Financial, LLC 301069270 Leased equipment
CCA Financial, LLC 301075857 Leased equipment
The following fully-funded deposit accounts are restricted for the purposes set
forth below:
Name Institution Facility Amount Purpose
---- ----------- -------- ------ -------
Restricted Wachovia Xxxxxxxx County $5.4 million Holds cash collateral
Cash Account Correctional Center against a guarantee the
Borrower provided under a
forward purchase agreement
relating to the 1997 bond
issue that financed the
construction of the
Xxxxxxxx County
Correctional Center
Restricted Banc of America San Diego Correctional $5.9 million Holds cash funds that may
Cash Account Facility only be used for capital
improvements, replacements,
and repairs at the San
Diego Correctional Facility
pursuant to a ground lease
with the County of San
Diego
The facility-level deposit accounts maintained by the Borrower (or the other
Credit Parties) aggregating approximately $12.2 million and in the following
categories are restricted for the purposes set forth below:
- Inmate Accounts - trust accounts maintained by the Borrower (or
the other Credit Parties) for inmates who earn wages for various
tasks performed by the inmates at their prison. The funds in
these accounts belong to the inmates who earn the wages.
- Commissary Accounts - deposit accounts used for prison commissary
operations where inmates are able to purchase items from the
applicable commissary. The funds in these accounts are used to
re-stock the items in the applicable commissary. Federal and
state regulations provide that funds in these accounts may only
be used for commissary operations and the general welfare of the
inmates.
SCHEDULE 10.7
TRANSACTIONS WITH AFFILIATES
None.
