EXHIBIT 4.2
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is made
and entered into as of this 10th day of January, 2003 by and among WACKENHUT
CORRECTIONS CORPORATION, a Florida corporation (the "Borrower"), WACHOVIA BANK,
NATIONAL ASSOCIATION, as administrative agent (the "Administrative Agent") and
BNP PARIBAS, as syndication agent (the "Syndication Agent").
Statement of Purpose
Certain credit facilities have been extended to the Borrower pursuant
to the Credit Agreement dated as of December 12, 2002, by and among the
Borrower, the lenders party thereto, the Administrative Agent and the
Syndication Agent (as amended, restated, supplemented or otherwise modified
from time to time, the "Credit Agreement").
The parties now desire to amend certain provisions of the Credit
Agreement in certain respects subject to the terms and conditions set forth
below.
NOW THEREFORE, for good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the parties hereto agree as follows:
1. Capitalized Terms. All capitalized undefined terms used in
this Amendment shall have the meanings assigned thereto in the Credit
Agreement.
2. Amendments to Credit Agreement. The Credit Agreement is
hereby modified as follows:
(a) Amendments to Existing Definition. The definition of
"Business Day" which is set forth in Section 1.1 of the Credit Agreement is
hereby amended in its entirety as follows:
"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 domestic or
international commercial banking business, as applicable, 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. Notwithstanding the foregoing, with respect to any
amount denominated or to be denominated in the euro, any reference to
a "Business Day" shall be construed as a reference to a day (other
than a Saturday or Sunday) on which banks are generally open for
business in New York, New York and prime banks in London generally
provide quotations for deposits denominated in the euro.
(b) Additional Defined Terms. Section 1.1 (Definitions) of the
Credit Agreement is amended by the addition of the following defined terms (in
alphabetical order):
"Alternative Currency" means (a) the euro, (b) the Pound
Sterling, (c) the Australian Dollar, (d) the South African Rand and
(e) with the prior written consent of the Issuing Lender, any other
lawful currency (other than Dollars); provided that in each case of
(a) through (e) above, such currency is freely transferable and
convertible into Dollars in the United States currency market and
freely available to an Issuing Lender in the London interbank deposit
market.
"Alternative Currency Amount" means with respect to each
Alternative Currency Letter of Credit, the amount of such Alternative
Currency which is equivalent to the principal amount in Dollars of
such Alternative Currency Letter of Credit at the most favorable spot
exchange rate determined by the applicable Issuing Lender to be
available to it at approximately 11:00 a.m. (Charlotte time) two (2)
Business Days before such Alternative Currency Letter of Credit is
issued or extended (or to be issued or extended). When used with
respect to any other sum expressed in Dollars, "Alternative Currency
Amount" shall mean the amount of such Alternative Currency which is
equivalent to the amount so expressed in Dollars at the most favorable
spot exchange rate determined by the applicable Issuing Lender to be
available to it at the relevant time.
"Alternative Currency Letter of Credit" means any Letter of
Credit denominated in an Alternative Currency and all such Alternative
Currency Letters of Credit collectively as the context requires.
"Australian Dollars" means, at any time of determination, the
then official currency of Australia.
"Dollar Amount" means (a) with respect to each Letter of
Credit issued or extended (or to be issued or extended), in Dollars,
the principal amount thereof and (b) with respect to each Alternative
Currency Letter of Credit, the amount of Dollars which is equivalent
to the face amount of such Letter of Credit, at the most favorable
spot exchange rate determined by the applicable Issuing Lender at
approximately 11:00 a.m. (the time of the Issuing Lender's
Correspondent) two (2) Business Days before such Letter of Credit is
issued or extended (or to be issued or extended). When used with
respect to any other sum expressed in an Alternative Currency, "Dollar
Amount" shall mean the amount of Dollars which is equivalent to the
amount so expressed in such Alternative Currency at the most favorable
spot exchange rate determined by the applicable Issuing Lender to be
available to it at the relevant time.
"EMU" means economic and monetary union as contemplated in
the Treaty on European Union.
"EMU Legislation" means legislative measures of the Council
of European Union for the introduction of, change over to or operation
of the euro.
"euro" means the single currency to which the Participating
Member States of the European Union have converted.
"Issuing Lender's Correspondent" means, with respect to
Wachovia, in its capacity as Issuing Lender, Wachovia Bank, National
Association, London Branch, and with respect to BNP Paribas, BNP
Paribas, New York Branch, or any other financial institution
designated by the applicable Issuing Lender to act as its
correspondent hereunder with respect to the issuance and payment of
Alternative Currency Letters of Credit.
"Participating Member State" means each state so described in
any EMU Legislation.
"Permitted Currency" means Dollars or any Alternative
Currency, or each such currency, as the context requires.
"Pounds Sterling" means, at any time of determination, the
then official currency of the United Kingdom of Great Britain and
Northern Ireland.
"South African Rand" means, at any time of determination, the
then official currency of South Africa.
"Treaty on European Union" means the Treaty of Rome of March
25, 1957, as amended by the Single European Act of 1986 and the
Maastricht Treaty (signed February 7, 1992), as amended from time to
time.
(c) Additional Section 1.4 and Section 1.5. Article I
(Definitions) of the Credit Agreement is amended by the addition of the
following new Section 1.4 and Section 1.5:
SECTION 1.4 Effectiveness of Euro Provisions. With respect
to any state (or the currency of such state) that is not a
Participating Member State on the date of this Agreement, the
provisions of Sections 3.8(a), 3.8(b) and 3.11 shall become effective
in relation to such state (and the currency of such state) at and from
the date on which such state becomes a Participating Member State.
SECTION 1.5 Currency Equivalents.
(a) For purposes of Articles II, III and IV, the
applicable outstanding amount of Letters of Credit and L/C Obligations
shall be deemed to refer to the Dollar Amount thereof.
(b) All Loans made under this Agreement, including,
without limitation, Loans made to refund drawings made under
Alternative Currency Letters of Credit, shall be made only in Dollars.
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(d) Amendment to Article III. Article III (Letter of Credit
Facility) of the Credit Agreement is hereby deleted in its entirety and the
following is substituted in lieu thereof.
ARTICLE III
LETTER OF CREDIT FACILITY
SECTION 3.1 L/C Commitment. Subject to the terms and
conditions hereof, the Issuing Lenders, in reliance on the agreements
of the L/C Participants set forth in Section 3.4(a), agree 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 the Issuing Lenders shall have no obligation to issue any Letter
of Credit if, after giving effect to such issuance, (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 a
Permitted Currency, (ii) be in a minimum amount of $25,000 (or the
Alternative Currency Amount thereof with respect to any Alternative
Currency Letters of Credit), (iii) be a standby letter of credit
issued to support obligations of the Borrower or any of its
Subsidiaries, contingent or otherwise, incurred in the ordinary course
of business, (iv) expire on a date satisfactory to the applicable
Issuing Lender, which date shall be no later than the earlier of (A)
one (1) year after the date of its issuance or (B) five (5) Business
Days prior to the Revolving Credit Maturity Date and (v) be subject to
the Uniform Customs and/or ISP98, as set forth in the Application or
as determined by the applicable Issuing Lender and, to the extent not
inconsistent therewith, the laws of the State of New York. The
applicable Issuing Lender shall not at any time be obligated to issue
any Letter of Credit hereunder if such issuance would conflict with,
or cause the applicable 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 existing 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 the applicable Issuing
Lender issue a Letter of Credit by delivering to the applicable
Issuing Lender at the applicable Lending Office an Application
therefor, completed to the satisfaction of the applicable Issuing
Lender, and such other certificates, documents and other papers and
information as the applicable Issuing Lender may request (which
information shall include the Permitted Currency in which the Letter
of Credit shall be denominated). Upon receipt of any Application, the
applicable Issuing Lender shall process such Application and the
certificates, documents and other papers and information delivered to
it in connection therewith in accordance with its
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customary procedures and shall, subject to Section 3.1 and Article VI
hereof, promptly issue the Letter of Credit requested thereby (but in
no event shall the applicable Issuing Lender be required to issue any
Letter of Credit earlier than (a) three (3) Business Days, with
respect to a Letter of Credit denominated in Dollars, and (b) four (4)
Business Days, with respect to an Alternative Currency Letter of
Credit, after its receipt of the 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 the
applicable Issuing Lender and the Borrower. The applicable Issuing
Lender shall promptly furnish to the Borrower a copy of such Letter of
Credit and 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.
SECTION 3.3 Commissions and Other Charges.
(a) 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 equal to the face amount of such Letter
of Credit (reflected as the Dollar Amount thereof, as determined by
the Administrative Agent) 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
and on the Revolving Credit Maturity Date and shall be payable in
Dollars based upon the Dollar Amount of such Letters of Credit for
such quarter, as determined by 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 3.3(a) in accordance
with their respective Revolving Credit Commitment Percentages.
(b) In addition to the foregoing commission, the
Borrower shall pay the applicable Issuing Lender, for its own account,
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
quarter of one percent (0.25%). Such issuance fee shall be payable
upon issuance of each Letter of Credit and shall be payable in the
Permitted Currency in which the applicable Letter of Credit is
denominated.
(c) In addition to the foregoing fees and commissions,
the Borrower shall pay or reimburse the applicable Issuing Lender, for
its own account, for such normal and customary costs and expenses as
are incurred or charged by the applicable Issuing Lender in issuing,
effecting payment under, amending or otherwise administering any
Letter of Credit. Such costs and expenses shall be payable in the
Permitted Currency in which the applicable Letter of Credit is
denominated.
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SECTION 3.4 L/C Participations.
(a) The Issuing Lenders irrevocably agree to grant and
hereby grant to each L/C Participant, and, to induce the Issuing
Lenders to issue Letters of Credit hereunder, each L/C Participant
irrevocably agrees to accept and purchase and hereby accepts and
purchases from the applicable 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 the applicable Issuing
Lender's obligations and rights under and in respect of each Letter of
Credit issued hereunder and the Dollar Amount of each draft paid by
the applicable 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
the applicable Issuing Lender is not reimbursed in full by the
Borrower through a Revolving Credit Loan or otherwise in accordance
with the terms of this Agreement, such L/C Participant shall pay to
the applicable Issuing Lender upon demand at the applicable Issuing
Lender's address for notices specified herein an amount equal to such
L/C Participant's Revolving Credit Commitment Percentage of the Dollar
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 the applicable Issuing Lender under any Letter of
Credit, the applicable Issuing Lender shall notify each L/C
Participant of the Dollar Amount and due date of such required payment
and such L/C Participant shall pay to the applicable Issuing Lender
the Dollar 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 the applicable
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 the applicable 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 3.4(b) 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
3.4(b), if the L/C Participants receive notice that any such payment
is due (A) prior to 1:00 p.m. (Charlotte time) on any Business Day,
such payment shall be due that Business Day, and (B) after 1:00 p.m.
(Charlotte time) on any Business Day, such payment shall be due on the
following Business Day.
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(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 3.4, the applicable
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, the applicable Issuing Lender will
distribute to such L/C Participant its pro rata share of the Dollar
Amount thereof; provided, that in the event that any such payment
received by the applicable Issuing Lender shall be required to be
returned by the applicable Issuing Lender, such L/C Participant shall
return to the applicable Issuing Lender the portion thereof previously
distributed by the applicable Issuing Lender to it.
(d) All payments made by any L/C Participant under this
Section 3.4 shall be made in Dollars; provided that the Borrower shall
be liable for any currency exchange loss pursuant to the terms of
Section 3.10.
SECTION 3.5 Reimbursement of Letter of Credit Drawings.
(a) 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 3.5 or with funds from other sources), in
the same day funds in the applicable Permitted Currency in which such
Letter of Credit was denominated, the Issuing Lender on each date on
which the Issuing Lender notifies the Borrower of the date and amount
of a draft paid under any Letter of Credit for the amount of (i) such
draft so paid and (ii) any amounts referred to in Section 3.3(c)
incurred by the Issuing Lender in connection with such payment (other
then those payable pursuant to Section 3.5(c) below).
(b) Reimbursement By the Lenders. Unless the Borrower
shall immediately notify the Issuing Lender that the Borrower intends
to reimburse the 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 Lenders make
a Revolving Credit Loan funded in Dollars bearing interest at the Base
Rate on such date in the amount of (a) such draft so paid and (b) any
amounts referred to in Section 3.3(c) incurred by the Issuing Lender in
connection with such payment (including, without limitation, any and
all costs, fees and other expenses incurred by the Issuing Lender in
effecting the payment of any Letter of Credit denominated in an
Alternative Currency), and the Lenders shall make a Revolving Credit
Loan funded in Dollars bearing interest at the Base Rate in such
amount, the proceeds of which shall be applied to reimburse the Issuing
Lender for the amount of the related drawing and costs and expenses.
Each Lender acknowledges and agrees that its obligation to fund a
Revolving Credit Loan in accordance with this Section 3.5 to reimburse
the 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
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conditions set forth in Section 2.3(a) or Article VI. If the Borrower
has elected to pay the amount of such drawing with funds from other
sources and shall fail to reimburse the 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.
(c) Payment of Alternative Currency Letters of Credit.
Each payment by the Borrower on account of any Alternative Currency
Letter of Credit (including the Reimbursement Obligation with respect
to any Alternative Currency Letter of Credit) shall be made in such
Alternative Currency not later than 1:00 p.m. (the time of the Issuing
Lender's Correspondent) on the date specified for payment under this
Agreement to the Administrative Agent's account with the Issuing
Lender's Correspondent for the account of the Issuing Lender 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. (the time of the Issuing Lender's
Correspondent) on such day shall be deemed a payment on such date for
the purposes of Section 12.1, 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. (the time of the Issuing Lender's
Correspondent) shall be deemed to have been made on the next
succeeding Business Day for all purposes.
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 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
the applicable Issuing Lender's gross negligence or willful
misconduct. The Borrower agrees that any action taken or omitted by
the applicable Issuing Lender 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
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of the applicable Issuing Lender or any L/C Participant to the
Borrower. The responsibility of the applicable Issuing Lender 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 Excess L/C Obligations. If at any time (as
determined by the Administrative Agent pursuant to this Section 3.7)
and because of currency fluctuations or for any other reason, based
upon the Dollar Amount of all outstanding Loans and L/C Obligations,
the outstanding amount of all L/C Obligations exceeds the lesser of
(a) the Aggregate Commitment less the sum of the amount of all
outstanding Loans and (b) the L/C Commitment, then, in each such case,
the Borrower shall, at its option, either (i) repay Loans in an amount
equal to such excess (to the extend such repayment will eliminate such
excess) or (ii) make 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 such excess (such cash collateral
to be applied in accordance with Section 12.2(b)). The Borrower's
compliance with this Section 3.7 shall be tested from time to time by
the Administrative Agent at its sole discretion, but in any event
shall be tested on (x) the date on which the Borrower requests the
Lenders to make a Loan or the Issuing Lenders to issue a Letter of
Credit under Section 6.3 and (y) the date an interest payment is due
under Section 5.1(e). Each such repayment pursuant to this Section 3.7
shall be accompanied by any amount required to be paid pursuant to
Section 5.9 hereof.
SECTION 3.8 Redenomination under EMU.
(a) Redenomination of Letters of Credit. Subject to
Section 1.4 hereof, any Letter of Credit to be denominated in the
currency of the applicable Participating Member State shall be made in
the euro.
(b) Redenomination of Obligations. Subject to Section
1.4 hereof, any obligation of any party under this Agreement or any
other Loan Document which has been denominated in the currency of a
Participating Member State shall be redenominated into the euro.
(c) Further Assurances. The terms and provisions of this
Agreement will be subject to such reasonable changes of construction
as determined by the Administrative Agent to reflect the
implementation of the EMU in any Participating Member State or any
market conventions relating to the fixing and/or calculation of
interest being changed or replaced and to reflect market practice at
that time, and subject thereto, to put the Administrative Agent, the
Lenders and the Borrower in the same position, so far as possible,
that they would have been if such implementation had not occurred. In
connection therewith, the
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Borrowers agree, at the request of the Administrative Agent, at the
time of or at any time following the implementation of the EMU in any
Participating Member State or any market conventions relating to the
fixing and/or calculation of interest being changed or replaced, to
enter into an agreement amending this Agreement in such manner as the
Administrative Agent shall reasonably request.
SECTION 3.9 Regulatory Limitation. In the event, as a result
of increases in the value of Alternative Currencies against the Dollar
or for any other reason, the obligation of any of the Issuing Lenders
to issue Alternative Currency Letters of Credit (taking into account
the Dollar Amount of the Obligations and all other indebtedness
required to be aggregated under 12 U.S.C.A. ss.84, as amended, the
regulations promulgated thereunder and any other Applicable Law) is
determined by such Issuing Lender to exceed its then applicable legal
lending limit under 12 U.S.C.A. ss.84, as amended, and the regulations
promulgated thereunder, or any other Applicable Law, the amount of
additional Alternative Currency Letters of Credit such Issuing Lenders
shall be obligated to issue hereunder shall immediately be reduced to
the maximum amount which such Issuing Lender may legally advance (as
determined by such Issuing Lender) and, to the extent necessary under
such laws and regulations (as determined by such Issuing Lender, with
respect to the applicability of such laws and regulations to itself),
the Borrower shall reduce, or cause to be reduced, complying to the
extent practicable with the remaining provisions hereof, the
Obligations outstanding hereunder by an amount sufficient to comply
with such maximum amounts.
SECTION 3.10 Exchange Indemnification and Increased Costs.
The Borrower shall, upon demand from any Issuing Lender or L/C
Participant, pay to such Issuing Lender or L/C Participant, the amount
of (a) any loss or cost or increased cost incurred by such Issuing
Lender or L/C Participant, (b) any reduction in any amount payable to
or in the effective return on the capital to such Issuing Lender or
L/C Participant, (c) any interest or any other return, including
principal, foregone by such Issuing Lender as a result of the
introduction of, change over to or operation of the euro or (d) any
currency exchange loss, in each case that such Issuing Lender or L/C
Participant sustains as a result of the Borrower's or any L/C
Participant's repayment in Dollars of any Alternative Currency Letter
of Credit. A certificate of such Issuing Lender setting forth in
reasonable detail the basis for determining such additional amount or
amounts necessary to compensate such Issuing Lender shall be
conclusively presumed to be correct save for manifest error.
SECTION 3.11 Rounding and Other Consequential Changes.
Subject to Section 1.4 hereof, without prejudice and in addition to
any method of conversion or rounding prescribed by any EMU Legislation
and without prejudice to the respective obligations of the Borrower to
the Administrative Agent and the Lenders and the Administrative Agent
and the Lenders to the Borrower under or pursuant to this Agreement,
except as expressly provided in this Agreement, each provision of this
Agreement, including, without limitation, the right to combine
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currencies to effect a set-off, shall be subject to such reasonable
changes of interpretation as the Administrative Agent may from time to
time specify to be necessary or appropriate to reflect the
introduction of or change over to the euro in Participating Member
States.
SECTION 3.12 Effect of Application. To the extent that any
provision of any Application related to any Letter of Credit is
inconsistent with the provisions of this Article III, the provisions
of this Article III shall apply.
(e) Amendment to Section 9.13. Section 9.13 (Existing Letters of
Credit) of the Credit Agreement is hereby amended by replacing "thirty (30)
days" with "sixty (60) days" in the first line thereof.
(f) Amendment to Section 12.2(b). Section 12.2 (Remedies) of the
Credit Agreement is hereby amended by adding the following phrase after the
words "Letter of Credit" at the end of the first sentence of clause (b)
thereof:
"(which such cash collateral shall be deposited in the applicable
Permitted Currency in which each Letter of Credit is denominated)"
(g) Amendment to Article XII. Article XII (Default and Remedies)
of the Credit Agreement is hereby amended by adding a new Section 12.4 as
follows:
SECTION 12.4 Judgment Currency. The obligation of the
Borrower to make payments of any amounts payable hereunder or pursuant
to any other Loan Document in the currency specified for such payment
shall not be discharged or satisfied by any tender, or any recovery
pursuant to any judgment, which is expressed in or converted into any
other currency, except to the extent that such tender or recovery
shall result in the actual receipt by each of the Administrative Agent
and Lenders of the full amount of the particular Permitted Currency
expressed to be payable pursuant to the applicable Loan Document. The
Administrative Agent shall, using all amounts obtained or received
from the Borrower pursuant to any such tender or recovery in payment
of principal of and interest on the Obligations, promptly purchase the
applicable currency at the most favorable spot exchange rate
determined by the Administrative Agent to be available to it. The
obligation of the Borrower to make payments in the applicable currency
shall be enforceable as an alternative or additional cause of action
solely for the purpose of recovering in the applicable currency the
amount, if any, by which such actual receipt shall fall short of the
full amount of the currency expressed to be payable pursuant to the
applicable Loan Document.
(h) Amendment to Section 14.3. Section 14.3 (Set-Off) of the
Credit Agreement is hereby amended by adding an "(a)" at the beginning of such
Section and adding new paragraphs (b) and (c) as follows:
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"(b) Any amount to be set-off pursuant to Section 14.3(a)
shall be denominated in Dollars and any amount denominated in an
Alternative Currency shall be in an amount equal to the Dollar Amount
of such amount at the most favorable spot exchange rate determined by
the Administrative Agent to be available to it; provided that if at
the time of any such determination no such spot exchange rate can
reasonably be determined, the Administrative Agent may use any
reasonable method as it deems applicable to determine such rate, any
such determination to be conclusive absent manifest error.
(c) Each Lender and any assignee or participant of such
Lender in accordance with Section 14.10 are hereby authorized by the
Borrower to combine currencies, as deemed necessary by such Person, in
order to effect any set-off pursuant to Section 14.3(a)."
(i) Amendment to Article XIV. Article XIV (Miscellaneous) of the
Credit Agreement is hereby amended by adding a new Section 14.22 thereto as
follows:
SECTION 14.22 Continuity of Contract. The parties hereto
agree that the occurrence or non-occurrence of EMU, any event or
events associated with EMU and/or the introduction of the euro in all
or any part of the European Union (a) will not result in the
discharge, cancellation, rescission or termination in whole or in part
of this Agreement or any other Loan Document, (b) will not give any
party the right to cancel, rescind, terminate or vary this Agreement
or any other Loan Document or (c) will not give rise to an Event of
Default, in each case other than as specifically provided in this
Agreement.
3. Consent. Pursuant to the terms of Section 2.2 of the
Collateral Agreement, the Borrower and its Restricted Domestic Subsidiaries are
required to pledge 65% of their ownership interest in certain first-tier
Foreign Subsidiaries. Notwithstanding the provisions of Section 2.2 of the
Collateral Agreement to the contrary, the Borrower shall not be required to
pledge its ownership interest in Wackenhut Corrections Puerto Rico, Inc. unless
requested by the Administrative Agent pursuant to Section 4.13 of the
Collateral Agreement.
4. Effectiveness. This Amendment shall become effective on the
date that each of the following conditions has been satisfied:
(a) Amendment Documents. The Administrative Agent shall have
received this Amendment executed by the Administrative Agent (on behalf of and
with the consent of the Required Lenders), the Borrower and the Guarantors.
(b) Fees and Expenses. The Administrative Agent shall have been
reimbursed for all fees and out of pocket charges and other expenses incurred
in connection with this Amendment (including, without limitation, the costs and
expenses referred to in Section 8 hereof and the Credit Agreement) and the
transactions contemplated hereby.
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(c) Other Documents. The Administrative Agent shall have received
any other documents, certificates or instruments reasonably requested thereby
in connection with the execution of this Amendment.
5. Effect of the Amendment. Except as expressly modified hereby,
the Credit Agreement and the other Loan Documents shall be and remain in full
force and effect. This Amendment shall not be deemed (a) to be a waiver of, or
consent to, a modification or amendment of, any other term or condition of the
Credit Agreement or any other Loan Document or (b) to prejudice any other right
or rights which the Administrative Agent or the Lenders may now have or may
have in the future under or in connection with the Credit Agreement or the
other Loan Documents or any of the instruments or agreements referred to
therein, as the same may be amended or modified from time to time.
6. Representations and Warranties/No Default.
(a) By its execution hereof, the Borrower hereby certifies that
each of the representations and warranties set forth in the Credit Agreement
and the other Loan Documents is true and correct as of the date hereof as if
fully set forth herein (except to the extent that such representations and
warranties relate to a specific date, in which case such representations and
warranties shall be true and correct as of such specific date) and no Default
or Event of Default has occurred and is continuing as of the date hereof.
(b) By its execution hereof, the Borrower hereby represents and
warrants that as of the date hereof there are no claims or offsets against or
defenses or counterclaims to any of the obligations of the Borrower or any
Guarantor under the Credit Agreement or any other Loan Document.
(c) By its execution hereof, the Borrower hereby represents and
warrants that the Borrower and each 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 Amendment and each other
document executed in connection herewith to which it is a party in accordance
with their respective terms. This Amendment and each other document executed in
connection herewith has been duly executed and delivered by the duly authorized
officers of the Borrower and each Guarantor, and each such document constitutes
the legal, valid and binding obligation of the Borrower and each Guarantor,
enforceable in accordance with its terms.
7. Acknowledgement by Guarantors. By their execution hereof,
each of the Guarantors hereby expressly (a) consents to the modifications and
amendments set forth in this Amendment, (b) reaffirms all of its respective
covenants, representations, warranties and other obligations set forth in the
Guaranty Agreement and the other Loan Documents to which it is a party and (c)
acknowledges, represents and agrees that its respective covenants,
representations, warranties and other obligations set forth in the Guaranty
Agreement and the other Loan Documents to which it is a party remain in full
force and effect.
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8. Costs and Expenses. The Borrower shall pay all reasonable
out-of-pocket costs and expenses of the Administrative Agent in connection with
the preparation, execution and delivery of this Amendment, including, without
limitation, the reasonable fees and disbursements of counsel for the
Administrative Agent.
9. Governing Law. This Amendment, unless otherwise expressly set
forth herein, 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 Obligations Law of the State of New York), without regard to the
conflicts of law provisions of such state.
10. Counterparts. This Amendment may be executed in separate
counterparts, each of which when executed and delivered is an original but all
of which taken together constitute one and the same instrument.
11. Fax Transmission. A facsimile, telecopy or other reproduction
of this Amendment may be executed by one or more parties hereto, and an
executed copy of this Amendment may be delivered by one or more parties hereto
by facsimile or similar instantaneous electronic transmission device pursuant
to which the signature of or on behalf of such party can be seen, and such
execution and delivery shall be considered valid, binding and effective for all
purposes. At the request of any party hereto, all parties hereto agree to
execute an original of this Amendment as well as any facsimile, telecopy or
other reproduction hereof.
[Signatures Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date and year first above written.
BORROWER:
WACKENHUT CORRECTIONS CORPORATION,
as Borrower
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President/Finance
GUARANTORS:
WCC RE HOLDINGS LLC, as Guarantor
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Assistant Treasurer
ATLANTIC SHORES HEALTHCARE, INC.,
as Guarantor
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Assistant Treasurer
[Signature Pages Continue]
AGENTS:
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Administrative Agent, Issuing Lender and Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
BNP PARIBAS, as Syndication Agent, Issuing Lender
and Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Director
By: /s/ ▇▇▇▇▇ ▇. March
------------------------------------------------
Name: ▇▇▇▇▇ ▇. March
Title: Vice President