EXHIBIT 10.73.2
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SECOND AMENDMENT TO MASTER AGREEMENT
AND OTHER OPERATIVE DOCUMENTS
-----------------------------
THIS SECOND AMENDMENT TO MASTER AGREEMENT AND OTHER OPERATIVE DOCUMENTS
is made as of the ___ day of August, 2001 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 3.6 of the Master
Agreement (as hereinafter defined), shall become a party hereto as a lessee
(individually, together with the Company in its capacity as a lessee, a "Lessee"
and collectively the "Lessees"); each of the Subsidiaries of the Company
identified under the caption "SUBSIDIARY GUARANTORS" on the signature pages
hereto (individually a "Subsidiary Guarantor" and, collectively, the "Subsidiary
Guarantors"); ATLANTIC FINANCIAL GROUP, LTD., a Texas limited partnership (the
"Lessor"); certain financial institutions parties hereto as lenders (together
with any other financial institution that becomes a party hereto as a lender,
collectively referred to as "Lenders" and individually as a "Lender"); 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"); and SUNTRUST BANK,
NASHVILLE, N.A., a national banking association, as documentation agent (in such
capacity, the "Document Agent").
W I T N E S S E T H:
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WHEREAS, the Company, the Lessees, the Subsidiary Guarantors, the
Lessor, the Lenders, the Syndication Agent and the Documentation Agent entered
into a Master Agreement dated as of August 31, 1999, as amended by a first
amendment thereto dated as of November 10, 2000 (collectively, the "Master
Agreement"); and
WHEREAS, the Company has requested the Lessor, the Lenders, the
Syndication Agent and the Documentation Agent to make certain amendments to the
Master Agreement as more fully described herein, and the Lessor, the Lenders,
the Syndication Agent and the Documentation Agent have agreed to do so, 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 Appendix A to the Master Agreement shall have the same
meanings when used herein.
2. Amendments to Master Agreement.
(a) Appendix A to the Master Agreement is amended by adding
the following definition thereto:
"Fleet National Bank" shall mean Fleet National Bank, a
national banking association.
(b) The following definitions appearing in Appendix A to the
Master Agreement are hereby amended to read in their entirety as follows:
"Applicable Margin" shall mean:
(i) with reference to Advances that are Base Rate
Advances or LIBOR Advances, an amount in excess of the Base Rate or the
LIBOR Rate, as the case may be, determined from time to time in
accordance with the table set forth below. The Applicable Margin shall
change on the fifth Business Day following receipt by the Syndication
Agent of a Compliance Certificate of the Company demonstrating that the
ratio of the consolidated Total Funded Debt of the Company and its
Subsidiaries to Adjusted EBITDA as at the last day of the immediately
preceding fiscal quarter of the Company shall be at a different level
in the table below, whereupon the Applicable Margin shall be reduced or
increased to the applicable percentage set forth in such table.
Notwithstanding the foregoing, the Applicable Margin shall not be
reduced at any time during which an Event of Default shall have
occurred and be continuing:
Applicable Margin for Applicable Margin for
Ratio of Total Revolving Credit Loans that Revolving Credit Loans
Funded Debt to are that are
Level Adjusted EBITDA Base Rate Loans LIBOR Loans
----- --------------- ------------------- -------------
I < 3.25:1 and 1.75% 3.25%
-
> 3.00:1
-
II < 3.00:1 and 1.50% 3.00%
-
> 2.50:1
-
III < 2.50:1 and 1.25% 2.75%
-
> 2.00:1
-
IV < 2.00:1 1.00% 2.50%
-
"Funding Termination Date" shall mean the earlier of (i) July
31, 2001, or (ii) the date which is six months prior to the end of the
Base Term, as it may be renewed pursuant to Section 14.9 of the Lease.
"Syndication Agent" shall mean Fleet National Bank, its
successors and assigns.
(c) Section 5.1(j) of the Master Agreement is hereby amended
to read in its entirety as follows:
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9.1.10 Total Funded Debt to Adjusted EBITDA Ratio.
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The Company will not permit the ratio of (i) the consolidated
Total Funded Debt of the Company and its Subsidiaries as of the last
day of any fiscal quarter of the Company ending during any test period
set forth in the table below, to (ii) Adjusted EBITDA for the period of
four consecutive fiscal quarters ending on the same day, to be greater
than the ratio set forth opposite such test period below:
Four Fiscal
Quarters Ending Ratio
--------------- -----
June 30, 2001 3.25:1
September 30, 2001 2.50:1
and thereafter
(d) All references in the Credit Agreement to "Summit Bank"
are hereby amended to read "Fleet National Bank".
3. Loan Agreement Availability. The Lessor and the Company
acknowledge and agree that, as a result of the amendment to the term "Funding
Termination Date" effected by this Agreement, the Lessor may not request further
Loans under the Loan Agreement after the date hereof.
4. Amendments to Other Operative Documents. Appendix A to each of
the Lease, the Loan Agreement, and the Construction Agency Agreement are hereby
amended to incorporate therein the changes to Appendix A to the Master Agreement
effected by paragraphs 2(a) and (b) of this Agreement.
5. Guaranty Reaffirmation. The Company hereby reaffirms all of
the terms and conditions of the Guaranty Agreement and acknowledges and agrees
that it has no defenses, offsets or counterclaims with respect to its
obligations thereunder.
6. Representations and Warranties.
(a) In order to induce the Syndication Agent and the Lenders
to enter into this Agreement and amend the Master Agreement as provided herein,
each Obligor, as to itself, hereby represents and warrants to the other parties
hereto as follows:
(i) All of the representations and warranties of the
Obligors set forth in the Master 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.
(ii) After giving effect to this Agreement, no
Potential Event of Default or Event of Default presently exists and is
continuing on and as of the date hereof.
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(iii) 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.
(iv) 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 Obligor 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 party
and is the legal, valid and binding obligation of such party 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.
(v) 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 such party 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.
(vi) 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 or performance by the Obligors of the Amendment Documents or the
transactions contemplated thereby.
(b) The Lessor hereby represents and warrants to the other
parties hereto as follows:
(i) All of the representations and warranties of the
Lessor set forth in the Master 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.
(ii) Since the date of the Lessor's 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.
(iii) The Lessor 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 any other Amendment Document; each Amendment
Document to which the Lessor is a party has been duly executed and delivered by
the Lessor and is the legal, valid and binding obligation of the
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Lessor 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.
(iv) 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 Lessor, (ii) conflict
with, result in a breach of, or constitute a default under (A) the formation
documents of the Lessor, (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 the
Lessor is a party or by which the Lessor 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 the Lessor.
(v) 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 or performance by the Lessor of the Amendment Documents or the
transactions contemplated thereby.
7. Syndication Agent's Costs. The Company shall on demand reimburse the
Syndication Agent for all out-of-pocket costs, including legal fees and
expenses, incurred by the Syndication Agent in connection with this Agreement
and the other Amendment Documents and the transactions referenced herein. In the
event the Company shall fail to pay any such invoice within 10 days, the Company
irrevocably authorizes the Syndication Agent to charge the Company's account(s)
with the Syndication 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 Master Agreement and the other Operative
Documents are hereby reaffirmed in their entirety 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.
[Balance of page intentionally left blank]
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10. 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:_________________________________
Name:
Title:
YOUTH SERVICES INTERNATIONAL, INC.
a Maryland corporation
By:_________________________________
Name:
Title:
FF&E, INC., a New Jersey corporation
By:_________________________________
Name:
Title:
COMMUNITY CORRECTIONS, INC., a
Texas corporation
By:_________________________________
Name:
Title:
(Signatures continued on next page)
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YOUTH SERVICES INTERNATIONAL
OF NORTHERN IOWA, INC., an
Iowa corporation
By:_________________________________
Name:
Title:
YOUTH SERVICES INTERNATIONAL
OF BALTIMORE, INC., a Maryland
corporation
By:_________________________________
Name:
Title:
YOUTH SERVICES INTERNATIONAL
OF VIRGINIA, INC., a Virginia
corporation
By:_________________________________
Name:
Title:
YOUTH SERVICES INTERNATIONAL
HOLDINGS, INC., a Delaware corporation
By:_________________________________
Name:
Title:
(Signatures continued on next page)
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YOUTH SERVICES INTERNATIONAL
REAL PROPERTY PARTNERSHIP, LLP,
a Maryland limited liability partnership
By:_________________________________
Name:
Title: of Both Partners
YOUTH SERVICES INTERNATIONAL
OF DELAWARE, INC., a Delaware
corporation
By:_________________________________
Name:
Title:
YOUTH SERVICES INTERNATIONAL
OF ILLINOIS, INC., a Maryland
corporation
By:________________________________
Name:
Title:
YOUTH SERVICES INTERNATIONAL
OF MARYLAND, INC., a Maryland
corporation
By:_________________________________
Name:
Title:
(Signatures continued on next page)
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YOUTH SERVICES INTERNATIONAL
OF MINNESOTA, INC., a Maryland
corporation
By:_________________________________
Name:
Title:
YOUTH SERVICES INTERNATIONAL
OF SOUTH DAKOTA, INC., a South Dakota
corporation
By:_________________________________
Name:
Title:
YOUTH SERVICES INTERNATIONAL
OF TEXAS, INC., a Texas
corporation
By:_________________________________
Name:
Title:
YSI OF CENTRAL IOWA, INC.,
an Iowa corporation
By:_________________________________
Name:
Title:
(Signatures continued on next page)
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YOUTH SERVICES INTERNATIONAL
OF IOWA, INC., a Maryland
corporation
By:_________________________________
Name:
Title:
YOUTH SERVICES INTERNATIONAL
OF MICHIGAN, INC., a Michigan
corporation
By:_________________________________
Name:
Title:
YOUTH SERVICES INTERNATIONAL
OF MISSOURI, INC., a Missouri
corporation
By:_________________________________
Name:
Title:
YOUTH SERVICES INTERNATIONAL
OF TENNESSEE, INC., a Maryland
corporation
By:_________________________________
Name:
Title:
(Signatures continued on next page)
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YOUTH SERVICES INTERNATIONAL
SOUTHEASTERN PROGRAMS, INC.,
a Maryland corporation
By:_________________________________
Name:
Title:
CSC MANAGEMENT DE PUERTO RICO, INC.,
a Puerto Rico corporation
By:_________________________________
Name:
Title:
FLEET NATIONAL BANK,
as the Syndication Agent and a Lender
By:_________________________________
Xxxx Xxxxx
Vice President
ATLANTIC FINANCIAL GROUP, LTD.,
as Lessor
By: Atlantic Financial Managers, Inc.,
its General Partner
By:________________________
Name:
Title:
(Signatures continued on next page)
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SUNTRUST BANK, NASHVILLE, N.A.,
as the Documentation Agent and a Lender
By:_________________________________
Name:
Title:
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