Exhibit 10.72.6
SIXTH AMENDMENT TO CREDIT AGREEMENT
THIS SIXTH AMENDMENT TO CREDIT AGREEMENT is made as of the 31st day of
July, 2002 by and among CORRECTIONAL SERVICES CORPORATION, a corporation duly
organized and validly existing under the laws of the State of Delaware (the
"Company"); each of the Subsidiaries of the Company that is a signatory hereto
or that, pursuant to Section 9.1.20(b) of the Credit Agreement (as hereinafter
defined), shall become a party hereto (individually, a "Subsidiary Guarantor"
and, collectively, the "Subsidiary Guarantors"; and the Subsidiary Guarantors,
collectively with the Company, are sometimes hereinafter referred to as the
"Obligors"); each of the lenders that is a signatory hereto or that, pursuant to
Section 12.6(b) of the Credit Agreement, shall become a "Lender" hereunder
(individually, a "Lender" and, collectively, the "Lenders"); and FLEET NATIONAL
BANK, a national banking association and successor by merger to Summit Bank, as
syndication agent for the Lenders (in such capacity, together with its
successors in such capacity, the "Syndication Agent").
W I T N E S S E T H:
WHEREAS, the Company, the Subsidiary Guarantors, the Lenders and the
Syndication Agent entered into a Credit Agreement dated August 31, 1999, as
amended by a first amendment thereto dated as of November 10, 2000, a second
amendment thereto dated in or about August, 2001, a third amendment thereto
dated in or about November, 2001, a fourth amendment thereto dated as of
November 28, 2001, and a fifth amendment thereto dated as of March 28, 2002
(collectively, the "Credit Agreement"); and
WHEREAS, the Company, the Syndication Agent and the Lenders have agreed
to make certain amendments to the Credit Agreement, subject to and in accordance
with the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Defined Terms. Except as otherwise indicated herein, all words
and terms defined in the Credit Agreement shall have the same meanings when used
herein.
2. Amendments to Credit Agreement.
(a) The following definitions appearing in Section 1.1 of
the Credit Agreement are hereby amended to read in their entirety as follows
(changes from the Credit Agreement are indicated in bold-face type):
"Qualified Accounts" shall mean an Account that meets all of
the following requirements on its date of invoice or other origination
date and continuing thereafter until collected:
(a) such Account represents a complete bona fide
transaction which requires no further act under any circumstances on
the part of any Obligor to make such Account payable by the Account
Debtor;
(b) such Account shall not be unpaid more than 60
days beyond its payment terms, not to exceed 90 days beyond the invoice
date;
(c) the goods the sale of which gave rise to such
Account were shipped or delivered to the Account Debtor on an absolute
sale basis and not on a xxxx and hold sale basis, a consignment sale
basis, a guaranteed sale basis, a sale or return basis, or on the basis
of any other similar understanding, and no part of such goods has been
returned or rejected;
(d) such Account is not evidenced by chattel paper,
a note or an instrument of any kind;
(e) the Account Debtor with respect to such Account
is not insolvent or the subject of any bankruptcy or insolvency
proceedings of any kind or of any other proceeding or action, which
might have a materially adverse effect on the business of such Account
Debtor or is not, in the reasonable discretion of the Syndication Agent
based upon a change in circumstances or objective facts, deemed
ineligible for credit for any other reason;
(f) if such Account arises from the performance of
services, such services have been fully rendered, and such Account does
not represent a progress billing;
(g) the Account Debtor with respect thereto is
located within the United States of America or Puerto Rico;
(h) such Account is a valid, legally enforceable
obligation of the Account Debtor with respect thereto and is not
subject to any present or contingent, and no facts exist which are the
basis for any future, offset or counterclaim or other defense on the
part of such Account Debtor, including without limitation, any account
payable, rental or other amount owing by the Obligor to such Account
Debtor; provided, however, that any Account subject to an offset,
counterclaim or defense shall be deemed ineligible under this
subsection (h) only to the extent of such offset, counterclaim or
defense;
(i) the Syndication Agent has a first position
perfected Lien (for the benefit of the Lenders) in such Account, which
is subject to no other Lien;
(j) such Account is evidenced by an invoice or
other documentation in a form acceptable to the Syndication Agent;
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(k) such Account does not arise out of any
transaction with a Subsidiary or an Affiliate of the Obligors;
(l) such Account is not subject to any provision
prohibiting its assignment or requiring notice of or consent to such
assignment, other than the type of notice required under subsection (o)
below;
(m) if applicable, the goods giving rise to such
Account were not, at the time of the sale thereof, subject to any Lien;
(n) such Account (or portion thereof) does not
represent amounts owing as a late fee, interest or service charge;
(o) the Account Debtor with respect to such Account
is not the United States government or any instrumentality or agency
thereof or, if the Account Debtor with respect to such Account is the
United States government or any instrumentality or agency thereof, such
Account has, in the opinion of the Syndication Agent or its counsel,
been properly assigned to the Agent pursuant to the Assignment of
Claims Act of 1940, 31 U.S.C. 3727 and 41 U.S.C. 15;
(p) at least 50% (in dollar amount) of all Accounts
owing to any Obligor from such Account Debtor (including the Account in
question) constitute Qualified Accounts; and
(q) such Account does not arise out of that certain
Contract for the Provision, Operation and Management of a Secure
Private Prison (Contract No. 010039DC) between the Arizona Department
of Corrections and the Company.
"Revolving Credit Commitment" shall mean, for each Lender, the
obligation of such Lender to make Loans in an aggregate principal
amount at any one time outstanding up to but not exceeding the amount
set forth opposite the name of such Lender on Schedule 1 under the
caption "Amount of Commitment for Revolving Credit Loan" (as the same
may be reduced from time to time pursuant to Section 2.3 hereof). As of
July 31, 2002, the aggregate principal amount of the Revolving Credit
Commitments is $13,000,000.
(b) Section 9.1.30 of the Credit Agreement is hereby
amended to read in its entirety as follows (changes from the Credit Agreement
are indicated in bold-face type):
Section 9.1.30 Evidence of Refinancing; Condition to
Refinancing.
(a) By no later than April 30, 2002, the Company shall
provide to the Syndication Agent a letter evidencing the Company's
request to refinance with a
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third-party lender all of the obligations of the Company and the
Subsidiary Guarantors under the Basic Documents and the Operative
Documents.
(b) Concurrently with repaying all of its obligations
under the Basic Documents and the Operative Documents, and as a
condition precedent thereto, the Company shall obtain a substitute
letter of credit to replace that certain standby letter of credit in
the maximum amount of $1,400,000 which, in a transaction unrelated to
this Agreement, is being issued by Fleet National Bank at the request
of the Company in favor of National Bank of Arizona, as the
beneficiary.
(c) Part 1 of Schedule 1 to the Credit Agreement is
hereby deleted and replaced with Part 1 of Schedule 1 attached to this
Agreement.
3. Substitute Notes. To evidence the decrease in the aggregate
Revolving Credit Commitment from $21,000,000 to $13,000,000, the Company is,
concurrently herewith, executing and delivering to each of the Revolving Credit
Lenders a substitute Revolving Credit Note (each a "Substitute Note") in
substitution for, but not repayment of, the Revolving Credit Note (each a "Prior
Note") heretofore issued to each such Revolving Credit Lender. The parties
acknowledge and agree that the execution and delivery of the Substitute Notes
shall not constitute a repayment, refinancing, accord and satisfaction or
novation of the Prior Notes or the indebtedness evidenced thereby.
4. Guaranty Reaffirmation. The Subsidiary Guarantors hereby
acknowledge and agree to the amendments to the Credit Agreement effected by this
Agreement. Each of the Subsidiary Guarantors hereby reaffirms all of the terms
and conditions of the guaranty set forth in Section 6 of the Credit Agreement
and agrees that such guaranty is applicable to all of the Guaranteed
Obligations, as amended by this Agreement. The Subsidiary Guarantors hereby
acknowledge and agree that they have no defenses, offsets or counterclaims with
respect to the Guaranteed Obligations and hereby waive and release all claims
against the Syndication Agent and the Lenders with respect thereto.
5. Representations, Warranties and Other Covenants. In order to
induce the Syndication Agent and the Lenders to enter into this Agreement and
amend the Credit Agreement as provided herein, each Obligor hereby represents
and warrants to the Syndication Agent and the Lenders that:
(a) All of the representations and warranties of the
Obligors set forth in the Credit Agreement are true, complete and correct in all
material respects on and as of the date hereof with the same force and effect as
if made on and as of the date hereof and as if set forth at length herein.
(b) No Default or Event of Default presently exists and
is continuing on and as of the date hereof.
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(c) Since the date of the Obligors' most recent financial
statements delivered to the Syndication Agent, no Material Adverse Effect has
occurred, and no event has occurred or failed to occur which has had or is
likely to have a Material Adverse Effect.
(d) Each Obligor has full power and authority to execute,
deliver and perform any action or step which may be necessary to carry out the
terms of this Agreement and all other agreements, documents and instruments, if
any, executed and delivered by the Obligors to the Syndication Agent and the
Lenders concurrently herewith or in connection herewith (collectively, the
"Amendment Documents"); each Amendment Document to which any of the Obligors is
a party has been duly executed and delivered by such Obligors and is the legal,
valid and binding obligation of such Obligor enforceable in accordance with its
terms, subject to any applicable bankruptcy, insolvency, general equity
principles or other similar laws affecting the enforcement of creditors' rights
generally.
(e) The execution, delivery and performance of the
Amendment Documents will not (i) violate any provision of any existing law,
statute, rule, regulation or ordinance binding upon the Obligors, (ii) conflict
with, result in a breach of, or constitute a default under (A) the certificate
of incorporation or by-laws or other equivalent formation documents of any
Obligor, (B) any order, judgment, award or decree of any court, governmental
authority, bureau or agency, or (C) any mortgage, indenture, material lease,
contract or other material agreement or undertaking to which any Obligor is a
party or by which any Obligor or its properties or assets may be bound, or (iii)
result in the creation or imposition of any lien or other encumbrance upon or
with respect to any property or asset now owned or hereafter acquired by any
Obligor, other than liens in favor of the Syndication Agent for the ratable
benefit of the Lenders.
(f) No consent, license, permit, approval or
authorization of, exemption by, notice to, report to, or registration, filing or
declaration with any Person is required in connection with the execution,
delivery, performance by the Obligors of the Amendment Documents or the
transactions contemplated thereby.
6. Acknowledgment by Lenders. Each of the Lenders acknowledges
and agrees that (a) it has been notified of, and offered the opportunity to
participate in, a transaction (the "L/C Transaction") unrelated to the loans
under the Credit Agreement, pursuant to which Fleet National Bank will, at the
request of the Company, issue a standby letter of credit in the original face
amount of $1,400,000 (the "L/C") in favor of National Bank of Arizona, as the
beneficiary, which L/C will be secured by a first lien on and security interest
in a certificate of deposit in the minimum amount of $1,400,000 to be issued by
Fleet National Bank to the Company (the "CD"), (b) Suntrust Bank, Nashville,
N.A. has elected not to participate in the L/C Transaction, (c) it has been
advised that the Company will purchase the CD with the proceeds of an advance
under the Credit Agreement, (d) in the event the Company fails to repay all of
its obligations under the Basic Documents and the Operative Documents and
provide a substitute letter of credit pursuant to Section 9.1.30 of the Credit
Agreement by the Revolving Credit Commitment Termination Date, the CD may remain
outstanding beyond 90 days but will still be deemed a Permitted Investment, and
(e) notwithstanding any provision contained in the Credit Agreement or the
Security Agreement, the lien on and security interest in the CD will be for the
sole benefit of Fleet National
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Bank in its individual capacity as the issuing bank under, and Banco Popular
North America as a participant in, the L/C Transaction (which is unrelated to
any transaction under the Credit Agreement), and each Lender waives and releases
any claim in and to the CD as a result of or pursuant to the provisions of the
Credit Agreement or the Security Agreement.
7. Syndication Agent's Costs. The Company shall on demand
reimburse the Syndication Agent for all of its out-of-pocket costs, including
legal fees and expenses, incurred by the Syndication Agent in connection with
this Agreement, the transactions referenced herein (except for the L/C
Transaction) and the administration of the facilities described in the Credit
Agreement. The Company hereby authorizes the Syndication Agent to charge the
Company's account(s) with the Syndication Agent (or its affiliate) in the amount
of such out-of-pocket costs.
8. No Change. Except as expressly set forth herein or modified
hereby, all of the terms and provisions of the Credit Agreement and the other
Basic Documents are hereby reaffirmed in their entirety and shall continue in
full force and effect.
9. Counterparts; Effectiveness. This Agreement may be executed
in any number of counterparts, each of which shall be an original and all of
which shall constitute one and the same instrument. This Agreement shall not be
binding upon any party until all parties hereto have executed this Agreement and
delivered it to the Syndication Agent.
10. No Defenses. The Company hereby acknowledges and agrees that
it has no defenses, offsets or counterclaims with respect to its obligations
under the Credit Agreement, the Notes, the other Basic Documents and the
Operative Documents and hereby waives and releases all claims against the
Syndication Agent and the Lenders with respect thereto.
[The rest of this page left intentionally blank]
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11. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the undersigned have caused their duly authorized
representatives to execute and deliver this Agreement as of the day and year
first above written.
CORRECTIONAL SERVICES CORPORATION,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------------------
Xxxxxxx X. Xxxxxx
Xx. Vice President and Chief Financial Officer
YOUTH SERVICES INTERNATIONAL, INC.,
a Maryland corporation
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------------------
Xxxxxxx X. Xxxxxx
Xx. Vice President and Chief Financial Officer
FF&E, INC., a New Jersey corporation
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------------------
Xxxxxxx X. Xxxxxx
Xx. Vice President and Chief Financial Officer
YOUTH SERVICES INTERNATIONAL
OF NORTHERN IOWA, INC., an
Iowa corporation
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------------------
Xxxxxxx X. Xxxxxx
Xx. Vice President and Chief Financial Officer
(Signatures continued on next page)
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YOUTH SERVICES INTERNATIONAL
HOLDINGS, INC., a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------------------
Xxxxxxx X. Xxxxxx
Xx. Vice President and Chief Financial Officer
YOUTH SERVICES INTERNATIONAL
REAL PROPERTY PARTNERSHIP, LLP,
a Maryland limited liability partnership
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------------------
Xxxxxxx X. Xxxxxx
Xx. Vice President and Chief Financial Officer
YOUTH SERVICES INTERNATIONAL
OF ILLINOIS, INC., a Maryland
corporation
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------------------
Xxxxxxx X. Xxxxxx
Xx. Vice President and Chief Financial Officer
YOUTH SERVICES INTERNATIONAL
OF SOUTH DAKOTA, INC., a South Dakota
corporation
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------------------
Xxxxxxx X. Xxxxxx
Xx. Vice President and Chief Financial Officer
(Signatures continued on next page)
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YOUTH SERVICES INTERNATIONAL
OF TEXAS, INC., a Texas corporation
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------------
Xxxxxxx X. Xxxxxx
Xx. Vice President and Chief Financial Officer
YSI OF CENTRAL IOWA, INC.,
an Iowa corporation
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------------------
Xxxxxxx X. Xxxxxx
Xx. Vice President and Chief Financial Officer
YOUTH SERVICES INTERNATIONAL
OF IOWA, INC., a Maryland
corporation
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------------
Xxxxxxx X. Xxxxxx
Xx. Vice President and Chief Financial Officer
YOUTH SERVICES INTERNATIONAL
OF MICHIGAN, INC., a Michigan
corporation
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------------------
Xxxxxxx X. Xxxxxx
Xx. Vice President and Chief Financial Officer
(Signatures continued on next page)
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YOUTH SERVICES INTERNATIONAL
OF MISSOURI, INC., a Missouri
corporation
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------------------
Xxxxxxx X. Xxxxxx
Xx. Vice President and Chief Financial Officer
CSC MANAGEMENT DE PUERTO RICO, INC.,
a Puerto Rico corporation
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------------------
Xxxxxxx X. Xxxxxx
Xx. Vice President and Chief Financial Officer
FLEET NATIONAL BANK,
as the Syndication Agent and a Lender
By: ______________________________________________
Name:
Title:
SUNTRUST BANK, NASHVILLE, N.A.,
as a Lender
By: ______________________________________________
Name:
Title:
BANCO POPULAR NORTH AMERICA,
as a Lender
By: ______________________________________________
Name:
Title:
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SCHEDULE 1
Commitment of Lenders and Addresses for Notices
Part 1-Commitment of Lenders and Address for Notices to Lenders
Amount of Commitment
For Revolving Credit Amount of Commit- Total
Lender Loans ment for DD Loans Commitment
------ -------------------- ----------------- ----------
Fleet National Bank $8,629,117.12 $0 $8,629,117.12
000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxx Heal
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
SunTrust Bank, Nashville, N.A. $1,770,882.88 $0 $1,770,882.88
000 0xx Xxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Banco Popular North America $2,600,000.00 $0 $2,600,000.00
0 Xxxx 00/xx/ Xxxxxx
Xxx Xxxx, XX 00000
Attention: Ms. Xxxxx Xxxxxxxx
Senior Vice President
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
SUBSTITUTE REVOLVING CREDIT NOTE
$8,629,117.12 As of July 31, 2002
FOR VALUE RECEIVED, the undersigned, Correctional Services Corporation,
a Delaware corporation (the "Company"), hereby unconditionally promises to pay
on or before the Revolving Credit Commitment Termination Date (as defined in
that certain Credit Agreement dated August 31, 1999, as amended (the
"Agreement"), among the Company, certain of its subsidiaries as guarantors, the
lenders party thereto and Fleet National Bank, as syndication agent (the
"Syndication Agent")), to the order of Fleet National Bank (the "Lender"), at
the office of the Syndication Agent located at 000 Xxxxxx Xxxxxx, Xxxxxxxx, Xxx
Xxxxxx, or at such other location as the Syndication Agent shall designate, in
lawful money of the United States of America and in immediately available funds,
the principal amount of the lesser of (i) $8,629,117.12, or (ii) the aggregate
unpaid principal amount of all Revolving Credit Loans made by the Lender to the
Company pursuant to the Agreement. Notwithstanding the foregoing, each Revolving
Credit Loan used by the Company to fund Pre-Development Costs shall be repaid on
or before the date that is nine months after the date such Loan was made to the
Company. Terms defined in the Agreement shall have the same meanings when used
herein.
The Company further agrees to pay interest in like money at the office
of the Syndication Agent on the unpaid principal amount hereof from time to time
at a rate or rates per annum and at such times as are provided in the Agreement.
Subject to the provisions of Section 5.5 of the Agreement, this Note
may be prepaid, in whole or in part, at one time or from time to time, without
premium or penalty in accordance with Sections 2.3 and 2.9 of the Agreement. In
addition, this Note shall be prepaid in accordance with Section 2.10 of the
Agreement, upon the occurrence of any of the events described therein.
This Note is secured by the Collateral described in the Security
Agreement and the real property described in the Mortgages.
Upon the occurrence of an Event of Default, all principal, interest and
other amounts owing under this Note shall be, or may be declared to be,
immediately due and payable, all subject to and in accordance with the
provisions of Section 10.1 of the Agreement.
Upon the occurrence of any Event of Default, the Lender may, in
addition to such other and further rights and remedies as provided by law or
under any of the Basic Documents, collect interest on such overdue amount from
the date of such maturity until paid at a rate per annum equal to the
Post-Default Rate.
This Note is one of the Revolving Credit Notes referred to in, and
evidences certain indebtedness incurred by the Company to the Lender under, the
Agreement. The holder of this Note is entitled to all of the benefits and
security provided in the Agreement and the other Basic Documents.
This Note is being executed and delivered by the Company to the Lender
in substitution for that certain Substitute Revolving Credit Note dated as of
March 28, 2002 from the Company in favor of the Lender in the maximum principal
amount of $13,939,343 (the "Prior Note"). The
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execution and delivery of this Note by the Company shall not constitute a
repayment, refinancing, accord and satisfaction or novation of the Prior Note or
the indebtedness evidenced thereby.
This Note may not be changed orally, but only by an agreement in
writing, signed by the party against whom enforcement of any waiver, change,
modification or discharge is sought.
Should the indebtedness represented by this Note or any part hereof be
collected at law or in equity, or in bankruptcy, receivership, or any other
court proceeding, or should this Note be placed in the hands of attorneys for
collection upon the occurrence of an Event of Default, the Company agrees to
pay, in addition to the principal and interest due and payable hereon, all
reasonable costs of collecting or attempting to collect this Note, including
reasonable attorneys' fees and expenses.
This Note shall be and remain in full force and effect and in no way
impaired until the actual payment thereof to the Lender, its successors or
assigns.
Anything herein to the contrary notwithstanding, the obligations of the
Company under this Note shall be subject to the limitation that payments of
interest shall not be required to the extent that receipt of any such payment by
the Lender would be contrary to provisions of law applicable to the Lender
limiting the maximum rate of interest which may be charged or collected by the
Lender.
The Company and all endorsers and guarantors of this Note hereby waive
presentment, demand for payment, protest and notice of dishonor of this Note.
This Note is binding upon the Company and its successors and assigns
and shall inure to the benefit of the Lender and its successors and assigns.
This Note and the rights and obligations of the parties hereto shall be
subject to and governed by the laws of the State of New York.
IN WITNESS WHEREOF, the undersigned has caused this Note to be duly
executed by its authorized officer as of the day and year above written.
CORRECTIONAL SERVICES CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------
Xxxxxxx X. Xxxxxx
Xx. Vice President and Chief Financial Officer
13
SUBSTITUTE REVOLVING CREDIT NOTE
$1,770,882.88 As of July 31, 2002
FOR VALUE RECEIVED, the undersigned, Correctional Services Corporation,
a Delaware corporation (the "Company"), hereby unconditionally promises to pay
on or before the Revolving Credit Commitment Termination Date (as defined in
that certain Credit Agreement dated August 31, 1999, as amended (the
"Agreement"), among the Company, certain of its subsidiaries as guarantors, the
lenders party thereto and Fleet National Bank, as syndication agent (the
"Syndication Agent")), to the order of SunTrust Bank, Nashville, N.A. (the
"Lender"), at the office of the Syndication Agent located at 000 Xxxxxx Xxxxxx,
Xxxxxxxx, Xxx Xxxxxx, or at such other location as the Syndication Agent shall
designate, in lawful money of the United States of America and in immediately
available funds, the principal amount of the lesser of (i) $1,770,882.88, or
(ii) the aggregate unpaid principal amount of all Revolving Credit Loans made by
the Lender to the Company pursuant to the Agreement. Notwithstanding the
foregoing, each Revolving Credit Loan used by the Company to fund
Pre-Development Costs shall be repaid on or before the date that is nine months
after the date such Loan was made to the Company. Terms defined in the Agreement
shall have the same meanings when used herein.
The Company further agrees to pay interest in like money at the office
of the Syndication Agent on the unpaid principal amount hereof from time to time
at a rate or rates per annum and at such times as are provided in the Agreement.
Subject to the provisions of Section 5.5 of the Agreement, this Note
may be prepaid, in whole or in part, at one time or from time to time, without
premium or penalty in accordance with Sections 2.3 and 2.9 of the Agreement. In
addition, this Note shall be prepaid in accordance with Section 2.10 of the
Agreement, upon the occurrence of any of the events described therein.
This Note is secured by the Collateral described in the Security
Agreement and the real property described in the Mortgages.
Upon the occurrence of an Event of Default, all principal, interest and
other amounts owing under this Note shall be, or may be declared to be,
immediately due and payable, all subject to and in accordance with the
provisions of Section 10.1 of the Agreement.
Upon the occurrence of any Event of Default, the Lender may, in
addition to such other and further rights and remedies as provided by law or
under any of the Basic Documents, collect interest on such overdue amount from
the date of such maturity until paid at a rate per annum equal to the
Post-Default Rate.
This Note is one of the Revolving Credit Notes referred to in, and
evidences certain indebtedness incurred by the Company to the Lender under, the
Agreement. The holder of this Note is entitled to all of the benefits and
security provided in the Agreement and the other Basic Documents.
This Note is being executed and delivered by the Company to the Lender
in substitution for that certain Substitute Revolving Credit Note dated as of
March 28, 2002 from the Company in favor of the Lender in the maximum principal
amount of $2,860,657 (the "Prior Note"). The
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execution and delivery of this Note by the Company shall not constitute a
repayment, refinancing, accord and satisfaction or novation of the Prior Note or
the indebtedness evidenced thereby.
This Note may not be changed orally, but only by an agreement in
writing, signed by the party against whom enforcement of any waiver, change,
modification or discharge is sought.
Should the indebtedness represented by this Note or any part hereof be
collected at law or in equity, or in bankruptcy, receivership, or any other
court proceeding, or should this Note be placed in the hands of attorneys for
collection upon the occurrence of an Event of Default, the Company agrees to
pay, in addition to the principal and interest due and payable hereon, all
reasonable costs of collecting or attempting to collect this Note, including
reasonable attorneys' fees and expenses.
This Note shall be and remain in full force and effect and in no way
impaired until the actual payment thereof to the Lender, its successors or
assigns.
Anything herein to the contrary notwithstanding, the obligations of the
Company under this Note shall be subject to the limitation that payments of
interest shall not be required to the extent that receipt of any such payment by
the Lender would be contrary to provisions of law applicable to the Lender
limiting the maximum rate of interest which may be charged or collected by the
Lender.
The Company and all endorsers and guarantors of this Note hereby waive
presentment, demand for payment, protest and notice of dishonor of this Note.
This Note is binding upon the Company and its successors and assigns
and shall inure to the benefit of the Lender and its successors and assigns.
This Note and the rights and obligations of the parties hereto shall be
subject to and governed by the laws of the State of New York.
IN WITNESS WHEREOF, the undersigned has caused this Note to be duly
executed by its authorized officer as of the day and year above written.
CORRECTIONAL SERVICES CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------
Xxxxxxx X. Xxxxxx
Xx. Vice President and Chief Financial Officer
15
SUBSTITUTE REVOLVING CREDIT NOTE
$2,600,000 As of July 31, 2002
FOR VALUE RECEIVED, the undersigned, Correctional Services Corporation, a
Delaware corporation (the "Company"), hereby unconditionally promises to pay on
or before the Revolving Credit Commitment Termination Date (as defined in that
certain Credit Agreement dated August 31, 1999, as amended (the "Agreement"),
among the Company, certain of its subsidiaries as guarantors, the lenders party
thereto and Fleet National Bank, as syndication agent (the "Syndication
Agent")), to the order of Banco Popular North America (the "Lender"), at the
office of the Syndication Agent located at 000 Xxxxxx Xxxxxx, Xxxxxxxx, Xxx
Xxxxxx, or at such other location as the Syndication Agent shall designate, in
lawful money of the United States of America and in immediately available funds,
the principal amount of the lesser of (i) $2,600,000, or (ii) the aggregate
unpaid principal amount of all Revolving Credit Loans made by the Lender to the
Company pursuant to the Agreement. Notwithstanding the foregoing, each Revolving
Credit Loan used by the Company to fund Pre-Development Costs shall be repaid on
or before the date that is nine months after the date such Loan was made to the
Company. Terms defined in the Agreement shall have the same meanings when used
herein.
The Company further agrees to pay interest in like money at the office of
the Syndication Agent on the unpaid principal amount hereof from time to time at
a rate or rates per annum and at such times as are provided in the Agreement.
Subject to the provisions of Section 5.5 of the Agreement, this Note may be
prepaid, in whole or in part, at one time or from time to time, without premium
or penalty in accordance with Sections 2.3 and 2.9 of the Agreement. In
addition, this Note shall be prepaid in accordance with Section 2.10 of the
Agreement, upon the occurrence of any of the events described therein.
This Note is secured by the Collateral described in the Security Agreement
and the real property described in the Mortgages.
Upon the occurrence of an Event of Default, all principal, interest and
other amounts owing under this Note shall be, or may be declared to be,
immediately due and payable, all subject to and in accordance with the
provisions of Section 10.1 of the Agreement.
Upon the occurrence of any Event of Default, the Lender may, in addition to
such other and further rights and remedies as provided by law or under any of
the Basic Documents, collect interest on such overdue amount from the date of
such maturity until paid at a rate per annum equal to the Post-Default Rate.
This Note is one of the Revolving Credit Notes referred to in, and
evidences certain indebtedness incurred by the Company to the Lender under, the
Agreement. The holder of this Note is entitled to all of the benefits and
security provided in the Agreement and the other Basic Documents.
This Note is being executed and delivered by the Company to the Lender in
substitution for that certain Substitute Revolving Credit Note dated as of March
28, 2002 from the Company in favor of the Lender in the maximum principal amount
of $4,200,000.00 (the "Prior Note"). The
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execution and delivery of this Note by the Company shall not constitute a
repayment, refinancing, accord and satisfaction or novation of the Prior Note or
the indebtedness evidenced thereby.
This Note may not be changed orally, but only by an agreement in writing,
signed by the party against whom enforcement of any waiver, change, modification
or discharge is sought.
Should the indebtedness represented by this Note or any part hereof be
collected at law or in equity, or in bankruptcy, receivership, or any other
court proceeding, or should this Note be placed in the hands of attorneys for
collection upon the occurrence of an Event of Default, the Company agrees to
pay, in addition to the principal and interest due and payable hereon, all
reasonable costs of collecting or attempting to collect this Note, including
reasonable attorneys' fees and expenses.
This Note shall be and remain in full force and effect and in no way
impaired until the actual payment thereof to the Lender, its successors or
assigns.
Anything herein to the contrary notwithstanding, the obligations of the
Company under this Note shall be subject to the limitation that payments of
interest shall not be required to the extent that receipt of any such payment by
the Lender would be contrary to provisions of law applicable to the Lender
limiting the maximum rate of interest which may be charged or collected by the
Lender.
The Company and all endorsers and guarantors of this Note hereby waive
presentment, demand for payment, protest and notice of dishonor of this Note.
This Note is binding upon the Company and its successors and assigns and
shall inure to the benefit of the Lender and its successors and assigns.
This Note and the rights and obligations of the parties hereto shall be
subject to and governed by the laws of the State of New York.
IN WITNESS WHEREOF, the undersigned has caused this Note to be duly
executed by its authorized officer as of the day and year above written.
CORRECTIONAL SERVICES CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
Xxxxxxx X. Xxxxxx
Xx. Vice President and Chief Financial Officer
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