EXHIBIT 10.72.4
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FOURTH AMENDMENT TO CREDIT AGREEMENT
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THIS FOURTH AMENDMENT TO CREDIT AGREEMENT is made as of the 28th day of
November, 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 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:
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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 and a third amendment thereto
dated in or about November, 2001 (collectively, the "Credit Agreement"); and
WHEREAS, the Company has requested the Syndication Agent and the Lenders to
make a Revolving Credit Loan in an amount not to exceed $2,000,000, which loan
shall constitute an Overadvance, and to make certain amendments to the Credit
Agreement as more fully described herein, and the Syndication Agent and the
Lenders 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 Credit Agreement shall have the same meanings when used
herein.
2. Amendments to Credit Agreement.
(a) The following definition is hereby inserted into Section 1.1 of
the Credit Agreement in alphabetical order:
"Initial Overadvance" shall have the meaning ascribed to such
term in Section 2.1.1 hereof.
(b) Section 2.1.1 of the Credit Agreement is hereby amended by
inserting the following paragraph immediately after the first paragraph thereof:
On November 28, 2001, subject to the conditions contained below
in this paragraph, the Revolving Credit Lenders agree to make a
Revolving Credit Loan not exceeding $2,000,000 to the Company (the
"Initial Overadvance"). The Company acknowledges that the Initial
Overadvance shall constitute an Overadvance in the amount of such
Initial Overadvance. Notwithstanding any other provision contained
herein, (i) the Initial Overadvance shall bear interest at the rate
per annum equal to the LIBOR Rate for the applicable Interest Period
plus the Applicable Margin, and (ii) the Company shall, by no later
than December 10, 2001, either (A) repay the Overadvance, together
with accrued interest on such principal amount, to the Syndication
Agent for the account of each Revolving Credit Lender, or (B) deliver
to the Syndication Agent a Borrowing Base Certificate showing that
there is no Overadvance outstanding.
3. Amendment Fees; Other Obligations. Concurrently herewith and in
consideration for the Syndication Agent and the Lenders entering into this
Agreement, the Company is paying the Syndication Agent an amendment fee in the
amount of $10,000 for the ratable benefit of the Lenders. The foregoing fee is
earned in full on the date hereof and not subject to rebate or reduction. The
Company further agrees that (i) by no later than November 30, 2001, it shall pay
to the Syndication Agent's counsel its legal fees in the amount of $15,192.55
incurred through November 16, 2001, by wire transfer in accordance with such
instructions as provided to the Company, and (ii) by no later than November 30,
2001, the Company and its Subsidiaries shall execute and deliver to the
Syndication Agent the Third Amendment to Credit Agreement dated in or about
November, 2001 among the Revolving Credit Lenders, the Company and the
Subsidiaries which are parties thereto.
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:
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(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) After giving effect to this Agreement, no Default or Event of
Default presently exists and is continuing on and as of the date hereof.
(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.
(g) The following Subsidiaries have been dissolved or merged with and
into the Company or another Subsidiary: Community Corrections, Inc., Youth
Services International of Baltimore, Inc., Youth Services International of
Virginia, Inc., Youth Services International of Delaware, Inc., Youth Services
International of Maryland, Inc., Youth Services International of Tennessee, Inc.
and Youth Services International of Southeastern Programs, Inc. The Company
agrees that it shall, by no later than December 3, 2001, provide to the
Syndication Agent with true and accurate copies of the filed certificates of
dissolution or merger with respect to each of such Subsidiaries or other
documents evidencing such dissolution or merger which are reasonably
satisfactory to the Syndication Agent and the Lenders.
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6. 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,
the transactions referenced herein and the administration of the facilities
described in the Credit Agreement. 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 Agent
(or its affiliate) in the amount of such out-of-pocket costs.
7. 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 shall continue in full force
and effect.
8. 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.
9. 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.
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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:
(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
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:
YOUTH SERVICES INTERNATIONAL
OF ILLINOIS, 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:
(Signatures continued on next page)
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CSC MANAGEMENT DE PUERTO RICO, INC.,
a Puerto Rico corporation
By:_________________________________
Name:
Title:
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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