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EXHIBIT 10.1
SECOND WAIVER AND AMENDMENT
DATED AS OF APRIL 16, 2001
This SECOND WAIVER AND AMENDMENT (this "Agreement") is among CORRECTIONS
CORPORATION OF AMERICA (formerly known as Prison Realty Trust, Inc.), a Maryland
corporation (the "Borrower"), the subsidiaries of the Borrower party to the
Credit Agreement referred to below (collectively, the "Subsidiary Guarantors"),
the Lenders (as defined below), and ▇▇▇▇▇▇ COMMERCIAL PAPER INC. ("LCPI"), as
administrative agent for the Lenders (in such capacity, the "Administrative
Agent").
PRELIMINARY STATEMENTS:
1. The Borrower, the Subsidiary Guarantors, the Lenders, and the
Administrative Agent have entered into that certain Amended and Restated Credit
Agreement, dated as of August 4, 1999, by and among the Borrower, the Subsidiary
Guarantors, the lenders party thereto (the "Lenders"), the Administrative Agent,
Societe Generale, as documentation agent, ▇▇▇▇▇▇ Brothers Inc., as advisor, book
manager and lead arranger, The Bank of Nova Scotia, as syndication agent, and
Southtrust Bank (formerly known as Southtrust Bank, N.A.), as co-agent (as
previously amended, the "Credit Agreement"; capitalized terms used and not
otherwise defined herein have the meanings assigned to such terms in the Credit
Agreement).
2. The Borrower has informed the Lenders that a certain Event of Default
currently exists under the Credit Agreement, as more particularly described
below (the "Existing Event of Default").
3. The Borrower has requested that the Aggregate Required Lenders (i) waive
the existing Event of Default and (ii) amend certain other provisions of the
Credit Agreement, as more particularly described below.
4. Subject to the terms and conditions set forth below, and in
consideration of certain agreements of the Borrower and the other Credit Parties
set forth herein, the Required Lenders and the Required Tranche C Term Lenders
are willing to agree to the amendments, as more particularly described below.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Waiver. So long as the Borrower has (i) delivered to the Administrative
Agent, on or before April 18, 2001, audited financial statements and related
materials for fiscal year 2000 of the Consolidated Parties and each Unrestricted
Subsidiary of the Borrower (the "Year 2000 Financial Statements") that comply in
all respects (other than the requirement that such Year 2000 Financial
Statements be delivered within 90 days after the close of the fiscal year
therefor) with Section 7.1(a) of the Credit Agreement and (ii) complied with all
SEC rules and procedures and the Borrower's obligations under the PMI Note
Purchase Agreement, in each case with respect to the Year 2000 Financial
Statements, then upon the terms and subject to the conditions set forth in this
Agreement and in reliance on the representations and warranties of the
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Credit Parties set forth in Section 4 of this Agreement, the Aggregate Required
Lenders hereby waive the Event of Default that has occurred solely due to the
Borrower's failure to timely deliver, within 90 days after close of the fiscal
year therefor, the Year 2000 Financial Statements pursuant to Section 7.1(a) of
the Credit Agreement (the "Existing Event of Default"). For the avoidance of
doubt, the Existing Event of Default shall comprise only to the failure to make
a timely delivery of the Year 2000 Financial Statements and shall not apply to
the obligation of the Borrower to actually deliver Year 2000 Financial
Statements.
2. Amendment to Credit Agreement. Upon the terms and subject to the
conditions set forth in this Agreement and in reliance on the representations
and warranties of the Credit Parties set forth in this Agreement, the Borrower,
the Aggregate Required Lenders hereby agree to the following amendment to the
Credit Agreement:
a. Section 9.1(p) of the Credit Agreement is hereby deleted in its
entirety.
3. Conditions to Effectiveness. The effectiveness of this Agreement is
conditioned upon satisfaction of the following conditions precedent (the date on
which all such conditions have been satisfied being referred to herein as, the
"Amendment Effective Date"):
a. the Administrative Agent shall have received signed written
authorization from the Required Lenders and Required Tranche C Term Lenders to
execute this Agreement, and shall have received counterparts of this Agreement
signed by the Borrower and the other Credit Parties;
b. each of the representations and warranties in Section 4 below shall
be true and correct in all material respects;
c. after giving effect to the waiver set forth in Section 1 hereof and
the amendment set forth in Section 2 hereof, no Default or Event of Default
shall have occurred and be continuing under the Credit Agreement or any other
Credit Document;
d. the Administrative Agent shall have received payment in immediately
available funds of all expenses incurred by the Administrative Agent (including,
without limitation, legal fees) for which invoices have been presented, on or
before the Amendment Effective Date;
e. the Aggregate Required Lenders shall be satisfied with the continued
perfection and priority of the Liens of the Administrative Agent on the
Collateral and will have received such title insurance endorsements and other
documents and agreements as they may reasonably require;
f. the Administrative Agent shall have received satisfactory evidence
that the execution, delivery and performance of this Agreement (including,
without limitation, the amendments to the Credit Agreement contained herein)
have been duly approved by all necessary corporate action of each Credit Party;
and
g. the Administrative Agent shall have received such other documents,
instruments, certificates, opinions and approvals as it may reasonably request.
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4. Representations and Warranties. The Borrower and each of the other
Credit Parties represents and warrants to the Administrative Agent and the
Lenders as follows:
a. Authority. Each of the Credit Parties has the requisite corporate
power and authority to execute and deliver this Agreement and to perform its
obligations hereunder and under the Credit Agreement (as modified hereby). The
execution, delivery and performance by the Borrower and each other Credit Party
of this Agreement, the Credit Agreement (as modified hereby) and the
transactions contemplated hereby and thereby have been duly approved by all
necessary corporate action of such Person and no other corporate proceedings on
the part of each such Person are necessary to consummate such transactions
(except as expressly contemplated hereby and thereby).
b. Enforceability. This Agreement has been duly executed and delivered
by the Borrower and the other Credit Parties. Each of this Agreement and, after
giving effect to this Agreement, the Credit Agreement and the other Credit
Documents is the legal, valid and binding obligation of each Credit Party hereto
and thereto, enforceable against such Credit Party in accordance with its terms,
and is in full force and effect. Neither the execution, delivery or performance
of this Agreement or of the Credit Agreement (as modified hereby), nor the
performance of the transactions contemplated hereby or thereby, will adversely
affect the validity, perfection or priority of the Administrative Agent's Lien
on any of the Collateral. The waiver and amendment with respect to the Credit
Agreement contained herein have been validly approved as required under Section
11.6 and 11.6A of the Credit Agreement and such consents and amendments are
binding on the Lenders.
c. Representations and Warranties. After giving effect to this
Agreement, the representations and warranties contained in the Credit Agreement
and the other Credit Documents (other than any such representations and
warranties that, by their terms, are specifically made as of a date other than
the date hereof) are true and correct on and as of the date hereof as though
made on and as of the date hereof.
d. No Conflicts. Neither the execution and delivery of this Agreement,
nor the consummation of the transactions contemplated hereby, nor the
performance of and compliance with the terms and provisions hereof by any Credit
Party will, at the time of such performance, (a) violate or conflict with any
provision of its articles or certificate of incorporation or bylaws or other
organizational or governing documents of such Person, (b) violate, contravene or
materially conflict with any Requirement of Law or any other law, regulation
(including, without limitation, Regulation U or Regulation X), order, writ,
judgment, injunction, decree or permit applicable to it, except for any
violation, contravention or conflict which could not reasonably be expected to
have a Material Adverse Effect, (c) violate, contravene or conflict with the
contractual provisions of, or cause an event of default under, any indenture,
loan agreement, mortgage, deed of trust, contract or other agreement or
instrument to which it is a party or by which it may be bound (including,
without limitation, the Senior Notes Indenture, the MDP Note Purchase Agreement,
the PMI Note Purchase Agreement and the Management Opco Credit Agreement),
except for any violation, contravention or conflict which could not reasonably
be expected to have a Material Adverse Effect, or (d) result in or require the
creation of any Lien (other than those contemplated in or created in connection
with the Credit Documents) upon or with respect to its properties.
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e. No Default. After giving effect to the waiver set forth in Section 1
and the amendment set forth in Section 2 hereof, no Default or Event of Default
has occurred and is continuing under the Credit Agreement or any other Credit
Document.
5. Reference to and Effect on Credit Agreement.
a. Upon and after the effectiveness of this Agreement, each reference in
the Credit Agreement to "this Agreement", "hereunder", "hereof" or words of like
import referring to the Credit Agreement, and each reference in the other Credit
Documents to "the Credit Agreement", "thereunder", "thereof" or words of like
import referring to the Credit Agreement, shall mean and be a reference to the
Credit Agreement as modified hereby.
b. Except as specifically modified above, the Credit Agreement and the
other Credit Documents are and shall continue to be in full force and effect and
are hereby in all respects ratified and confirmed. Without limiting the
generality of the foregoing, the Collateral Documents and all of the Collateral
described therein do and shall continue to secure the payment of all Credit
Party Obligations under and as defined therein, in each case as modified hereby.
c. The execution, delivery and effectiveness of this Agreement shall
not, except as expressly provided herein, operate as a waiver of any right,
power or remedy of any Secured Party under any of the Credit Documents, nor,
except as expressly provided herein, constitute a waiver or amendment of any
provision of any of the Credit Documents.
6. 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 and delivered shall be deemed to be an original and all
of which taken together shall constitute one and the same agreement. Delivery of
an executed counterpart of a signature page to this Agreement by facsimile shall
be effective as delivery of a manually executed counterpart of this Agreement.
7. Severability. Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
8. Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
9. Release of Claims. Each of the Credit Parties hereby acknowledges and
agrees that it does not have any defenses, counterclaims, offsets,
cross-complaints, claims or demands of any kind or nature whatsoever arising out
of the Credit Agreement or the other Credit Documents that can be asserted to
reduce or eliminate all or any part of the liability of such Credit Party to
repay any Secured Party, as provided in the Credit Agreement and the other
Credit Documents, or to seek affirmative relief or damages of any kind or nature
from any Secured Party arising out of the Credit Agreement or the other Credit
Documents. Each Credit Party hereby voluntarily and knowingly releases and
forever discharges each of the Secured
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Parties, and each Secured Party's predecessors, agents, employees, successors
and assigns, from all possible claims, demands, actions, causes of action,
damages, costs, or expenses, and liabilities whatsoever, known or unknown,
anticipated or unanticipated, suspected or unsuspected, fixed, contingent, or
conditional, at law or in equity, originating in whole or in part on or before
the effective date of this Agreement, which such Credit Party may now or
hereafter have against any such Secured Party, and such Secured Party's
predecessors, agents, employees, successors and assigns, if any, in each case
arising out of the Credit Agreement or the other Credit Documents, irrespective
of whether any such claims arise out of contract, tort, violation of law or
regulations, or otherwise, including, without limitation, the exercise of any
rights and remedies under the Credit Agreement or the other Credit Documents,
and the negotiation and execution of this Agreement.
To the extent that such laws may be applicable, the Credit Parties waive
and release any right or defense which they might otherwise have under any law
of any applicable jurisdiction which might limit or restrict the effectiveness
or scope of any of their waivers or releases hereunder.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized, as of the date
first written above.
CORRECTIONS CORPORATION OF
AMERICA (f/k/a Prison Realty Trust, Inc.),
a Maryland corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President
PRISON REALTY MANAGEMENT, INC.,
a Tennessee corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Title: Secretary
CCA OF TENNESSEE, INC. (f/k/a CCA
Acquisition Sub, Inc.), a Tennessee corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President
PMSI ACQUISITION SUB, INC.,
a Tennessee corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Title: Secretary
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JJFMSI ACQUISITION SUB, INC.,
a Tennessee corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Title: Secretary
TRANSCOR AMERICA, LLC,
a Tennessee limited liability company
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Rion
Title: Chief Manager
CCA INTERNATIONAL, INC.,
a Delaware corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Title: Secretary
TECHNICAL AND BUSINESS
INSTITUTE, INC., a Tennessee corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Title: Secretary
▇▇▇▇▇▇ COMMERCIAL PAPER INC.,
as Administrative Agent, on behalf of the
Required Lenders and the Required Tranche C
Term Lenders
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
Title: Authorized Signatory
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