Exhibit 10.73.5
FIFTH AMENDMENT TO MASTER AGREEMENT
AND OTHER OPERATIVE DOCUMENTS
THIS FIFTH AMENDMENT TO MASTER AGREEMENT AND OTHER OPERATIVE DOCUMENTS
is made as of August 28, 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 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 "Documentation Agent").
RECITALS
A. 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, a second amendment thereto dated in or about
August, 2001, a third amendment thereto dated in or about November, 2001, and a
fourth amendment dated as of March 28, 2002 (collectively, the "Master
Agreement").
B. The Company, the Lenders, the Syndication Agent and the
Documentation Agent have agreed to make certain amendments to the Master
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:
AGREEMENT
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) The definition of the term "Applicable Margin" appearing
in Appendix A to the Master Agreement is hereby amended to read in its entirety
as follows:
"Applicable Margin" shall mean (i) with reference to
Advances that are Base Rate Advances, an amount in excess of the Base
Rate equal to 2.50%, and (ii) with reference to Advances that are LIBOR
Advances, an amount in excess of the LIBOR Rate equal to 4.00%.
(b) The definition of the term "Base Term" appearing in
Appendix A to the Master Agreement is hereby amended to read in its entirety as
follows:
"Base Term" means, with respect to any Leased Property,
(a) the period commencing on the related Closing Date and ending on
September 30, 2002 or (b) such shorter period as may result from
earlier termination of the Lease as provided therein.
3. 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 Paragraph 2 of this Agreement.
4. 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.
5. 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.
(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.
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(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 (A) violate any provision of any existing law,
statute, rule, regulation or ordinance binding upon the Obligors, (B) conflict
with, result in a breach of, or constitute a default under (1) the certificate
of incorporation or by-laws or other equivalent formation documents of any
Obligor, (2) any order, judgment, award or decree of any court, governmental
authority, bureau or agency, or (3) 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 (C)
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 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.
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(iv) The execution, delivery and performance
of the Amendment Documents will not (A) violate any provision of any existing
law, statute, rule, regulation or ordinance binding upon the Lessor, (B)
conflict with, result in a breach of, or constitute a default under (1) the
formation documents of the Lessor, (2) any order, judgment, award or decree of
any court, governmental authority, bureau or agency, or (3) 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 (C) 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.
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 and the other Amendment Documents and the transactions referenced
herein. 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.
7. 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 and 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.
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9. 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 date set forth
on the first page hereof.
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:
ATLANTIC FINANCIAL GROUP, LTD.,
as Lessor
By: Atlantic Financial Managers, Inc.,
its General Partner
By:____________________________
Name:
Title:
SUNTRUST BANK, NASHVILLE, N.A.,
as the Documentation Agent and a Lender
By:________________________________
Name:
Title:
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