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Exhibit 4.20
AMENDMENT NO. 1 TO LOAN DOCUMENTS;
ASSUMPTION AGREEMENT; AND PARTIAL RELEASE
THIS AMENDMENT NO. 1 TO LOAN DOCUMENTS; ASSUMPTION AGREEMENT;
AND PARTIAL RELEASE ("Amendment") is made and entered into as of April 30, 1991
by and among EMC HOLDINGS, INC., a Delaware corporation ("Holdings"), EDUCATION
MANAGEMENT CORPORATION, a Pennsylvania corporation ("EMC"), THE NORTHWESTERN
MUTUAL LIFE INSURANCE COMPANY ("NML") and NATIONAL UNION FIRE INSURANCE COMPANY
OF PITTSBURGH, PA ("AIG").
WITNESSETH:
WHEREAS, Holdings, NML and AIG are parties to that certain
Note and Warrant Purchase Agreement dated as of October 25, 1989 (the
"Agreement"); and
WHEREAS, Holdings, through its representatives, has informed
NML and AIG of the proposed merger of Holdings with and into EMC, with EMC being
the surviving corporation (the "Merger"); and
WHEREAS, Holdings, and EMC have requested that NML and AIG (i)
acknowledge the Merger upon the condition that EMC expressly assumes all of
Holdings' obligations under the Agreement, the Notes, the Warrants and the
Pledge Agreements (collectively, the "Loan Documents"); (ii) amend certain
provisions of the Loan Documents to reflect the Merger; and (iii) release
certain collateral held by Agent on behalf of NML and AIG under the Pledge
Agreement; and
WHEREAS, NML and AIG are willing to amend the Loan Documents
subject to the terms and conditions of this Amendment.
NOW, THEREFORE, in consideration of the mutual premises herein
contained and other valuable consideration, the parties hereto agree to amend
the Loan Documents as follows:
1. Assumption Agreement. Effective upon the effective date of
the Merger, EMC shall, by operation of law, assume all of the obligations of
Holdings under the Loan Documents. EMC hereby expressly confirms its assumption
of the obligations of Holdings under the Loan Documents, and hereby expressly
agrees to be bound by each and every term, condition, representation, warranty
and covenant contained in the Loan Documents.
2. Amendment to Loan Documents. The name "EMC Holdings, Inc."
is hereby deleted from each of the Loan Documents and the name "Education
Management Corporation" is inserted in lieu thereof wherever it appears;
provided, however, that, for
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purposes of Sections 3, 4 and 5 of the Agreement, the term "Company" shall
continue to mean Holdings.
3. Partial Release. NML and AIG hereby release and discharge
from the lien and security interest of the Pledge Agreement and from the pledge
to NML and AIG, as collateral security for the Secured Indebtedness (as defined
in the Pledge Agreement), the 630,426 shares of Common Stock, no par value, of
EMC representing the Pledged Stock held by the Agent on behalf of NML and AIG
pursuant to the Pledge Agreement. The Pledge Agreement is, and each party's
rights and obligations thereunder are, hereby terminated.
4. Miscellaneous.
(a) Except as expressly amended by this Amendment,
the Agreement and each other Loan Document (other than the
Pledge Agreement), and each and every representation,
warranty, covenant, term and condition contained therein, are
specifically ratified and confirmed.
(b) Except for proper nouns and as otherwise defined
herein, capitalized terms used herein shall have the meanings
ascribed to them in the Agreement.
(c) This Amendment shall be governed by and construed
in accordance with the laws of the State of New York.
(d) This Amendment may be executed in as many
identical counterparts as may be convenient and by the
different parties hereto on separate counterparts. This
Amendment shall become binding when Holdings and/or EMC has
delivered the items required pursuant to paragraph 4(e) below
and when Holdings, EMC, NML and AIG have executed and
delivered at least one counterpart. All counterparts shall
constitute one and the same instrument.
(e) As a condition to the amendment of the Loan
Documents pursuant to this Amendment, Holdings and/or EMC
shall provide to NML and AIG, contemporaneously with the
execution hereof, the following:
(i) A certified copy of the corporate action
of Holdings and EMC authorizing the Merger and
execution of and performance under this Amendment by
EMC;
(ii) A certified copy of the Articles of
Merger as filed with the Secretary of State of the
Commonwealth of Pennsylvania;
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(iii) A signed favorable opinion of Xxxxxx
Xxxxxxx Xxxxxx & Xxxxxxx, counsel to Holdings and
EMC, to the effect that this Amendment is a legal,
valid and binding obligation of EMC, and that the
Merger does not adversely affect the enforceability
or availability of any remedy of the Loan Documents;
and
(iv) An Amended and Restated Warrant issued
to each of NML and AIG, which (x) shall be
substantially identical to the Warrants, except to
reflect that the Amended and Restated Warrants are
for the purchase of common stock of EMC rather than
Holdings, and (y) shall be delivered to NML and AIG
upon their delivery to EMC of the original Warrants,
which shall be cancelled.
IN WITNESS WHEREOF, the parties hereto, intending to be
legally bound hereby, have caused this Amendment to be duly executed as of the
date and year first above written.
EMC HOLDINGS, INC.
By:
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Title:
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EDUCATION MANAGEMENT CORPORATION
By:
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Title:
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THE NORTHWESTERN MUTUAL LIFE
INSURANCE COMPANY
By:
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Title:
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NATIONAL UNION FIRE INSURANCE
COMPANY OF PITTSBURGH, PA
By:
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Title:
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