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Exhibit 10.1(i)
SEVENTH MODIFICATION AGREEMENT
BY THIS SEVENTH MODIFICATION AGREEMENT (the "Agreement"), made and
entered into as of the 23rd day of February, 2001, XXXXX FARGO BANK, NATIONAL
ASSOCIATION, a national banking association, whose address is 000 Xxxx
Xxxxxxxxxx, Post Office Box 29742, MAC #S4101-251, Xxxxxxx, Xxxxxxx 00000-0000
(hereinafter called "Lender"), and APOLLO GROUP, INC., an Arizona corporation,
whose address is 0000 Xxxx Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000
(hereinafter called "Company"), in consideration of the mutual covenants herein
contained and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, hereby confirm and agree as follows:
SECTION 1. RECITALS.
1.1 Company and Lender entered into a Loan Agreement dated November 17,
1997 (as amended, the "Loan Agreement"), which provided for, among other things,
a revolving line of credit (the "RLC") in the amount of $10,000,000.00,
evidenced by a Revolving Promissory Note dated November 17, 1997, executed by
the Company (the "RLC Note"), all upon the terms and conditions contained
therein. The Loan Agreement was previously modified by that Modification
Agreement dated as of February 5, 1998, that Second Modification Agreement dated
as of August 13, 1998, that Third Modification Agreement dated as of April 30,
1999, that Fourth Modification Agreement dated as of August 3, 1999, that Fifth
Modification Agreement dated as of November 1, 1999 and that Sixth Modification
Agreement dated as of March 2, 2000. All undefined capitalized terms used herein
shall have the meaning given them in the Loan Agreement.
1.2 As of the date hereof, prior to the effect of the modifications
contained herein, the outstanding principal balance of the RLC is $0.00. Lender
has issued for the account of the Company two (2) standby letters of credit in
the amount of $70,161.00 and $5,803,177.00, that expire on March 31, 2001.
1.3 Company and Lender desire to modify the Loan Agreement as set forth
herein.
SECTION 2. LOAN AGREEMENT.
The modifications provided in this Section 2 shall be effective as of
February 23, 2001 as though entered into as of such date.
2.1 The following definition in Section 2.1 of the Loan Agreement is
hereby amended to read as follows:
"Maturity Date" means February 1, 2003.
2.2 Section 7.12 of the Loan Agreement is hereby amended to read as
follows:
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Section 7.12 Financial Condition. Borrower shall maintain its
consolidated financial condition as follows using generally accepted
accounting principles consistently applied and used consistently with
prior practices (except to the extent modified by the definitions
herein).
(a) Total Liabilities divided by Tangible Net Worth
not at any time greater than 1.0 to 1.0, with "Total
Liabilities" defined as the aggregate of current liabilities
and non-current liabilities less subordinated debt, and with
"Tangible Net Worth" defined as the aggregate of total
stockholders' equity plus subordinated debt less any
intangible assets.
(b) Quick Ratio not at any time less than 1.2 to 1.0,
with "Quick Ratio" defined as the aggregate of cash,
restricted cash, short-term investments and receivables
convertible into cash divided by total current liabilities.
(c) Net income after taxes not less than $1.00 on an
annual basis, determined as of each fiscal year and pre-tax
profit not less than $1.00 on a quarterly basis, determined as
of each fiscal quarter end.
SECTION 3. OTHER MODIFICATIONS, RATIFICATIONS AND AGREEMENTS.
3.1 All references to the Loan Agreement in the Loan Agreement, the RLC
Note and the other documents delivered with respect to the RLC (the "Loan
Documents") are hereby amended to refer to the Loan Agreement as hereby amended.
3.2 Company acknowledges that the indebtedness evidenced by the RLC
Note is just and owing, that the balance thereof is correctly shown in the
records of Lender as of the date hereof, and Company agrees to pay the
indebtedness evidenced by the RLC Note according to the terms thereof, as herein
modified.
3.3 Company hereby reaffirms to Lender each of the representations,
warranties, covenants and agreements of Company set forth in the RLC Note and
the Loan Agreement, with the same force and effect as if each were separately
stated herein and made as of the date hereof.
3.4 Company hereby ratifies, reaffirms, acknowledges, and agrees that
the RLC Note and the Loan Agreement, represent valid, enforceable and
collectible obligations of Company, and that there are no existing claims,
defenses, personal or otherwise, or rights of setoff whatsoever with respect to
any of these documents or instruments. In addition, Company hereby expressly
waives, releases and absolutely and forever discharges Lender and its present
and former shareholders, directors, officers, employees and agents, and their
separate and respective heirs, personal representatives, successors and assigns,
from any and all liabilities, claims, demands, damages,
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action and causes of action, whether known or unknown and whether contingent or
matured, that Company may now have, or has had prior to the date hereof, or that
may hereafter arise with respect to acts, omissions or events occurring prior to
the date hereof. To the best of Company's knowledge, Company further
acknowledges and represents that no event has occurred and no condition exists
that, after notice or lapse of time, or both, would constitute a default under
this Agreement, the RLC Note or the Loan Agreement.
3.5 All terms, conditions and provisions of the RLC Note and the Loan
Agreement are continued in full force and effect and shall remain unaffected and
unchanged except as specifically amended hereby. The RLC Note and the Loan
Agreement, as amended hereby, are hereby ratified and reaffirmed by Company, and
Company specifically acknowledges the validity and enforceability thereof.
SECTION 4. GENERAL.
4.1 This Agreement in no way acts as a release or relinquishment of
those rights securing payment of the RLC. Such rights are hereby ratified,
confirmed, renewed and extended by Company in all respects.
4.2 The modifications contained herein shall not be binding upon Lender
until Lender shall have received all of the following:
(a) An original of this Agreement fully executed by the
Company.
(b) Such resolutions or authorizations and such other
documents as Lender may reasonably require relating to the existence
and good standing of the Company and the authority of any person
executing this Agreement or other documents on behalf of the Company.
4.3 Company shall execute and deliver such additional documents and do
such other acts as Lender may reasonably require to fully implement the intent
of this Agreement.
4.4 Company shall pay all costs and expenses, including, but not
limited to, reasonable attorneys' fees incurred by Lender in connection
herewith, whether or not all of the conditions described in Paragraph 4.2 above
are satisfied. Lender, at its option, but without any obligation to do so, may
advance funds to pay any such costs and expenses that are the obligation of the
Company, and all such funds advanced shall be due and payable upon demand.
4.5 Notwithstanding anything to the contrary contained herein or in any
other instrument executed by Company or Lender, or in any other action or
conduct undertaken by Company or Lender on or before the date hereof, the
agreements, covenants and provisions contained herein shall constitute the only
evidence of Lender's consent to modify the terms and provisions of the Loan
Agreement. Accordingly, no express or implied consent to any further
modifications involving any of the matters set forth in this Agreement or
otherwise shall be inferred or implied by Lender's execution of this Agreement.
Further, Lender's execution of this Agreement shall not constitute a
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waiver (either express or implied) of the requirement that any further
modification of the RLC or of the RLC Note or the Loan Agreement, shall require
the express written approval of Lender; no such approval (either express or
implied) has been given as of the date hereof.
4.6 Time is hereby declared to be of the essence hereof of the RLC, of
the RLC Note and of the Loan Agreement, and Lender requires, and Company agrees
to, strict performance of each and every covenant, condition, provision and
agreement hereof, of the RLC Note and the Loan Agreement.
4.7 This Agreement shall be binding upon, and shall inure to the
benefit of, the parties hereto and their heirs, personal representatives,
successors and assigns.
4.8 This Agreement is made for the sole protection and benefit of the
parties hereto, and no other person or entity shall have any right of action
hereon.
4.9 This Agreement shall be governed by and construed according to the
laws of the State of Arizona.
IN WITNESS WHEREOF, these presents are executed as of the date
indicated above.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, a national banking association
By:
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Name:
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Its:
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LENDER
APOLLO GROUP, INC., an Arizona corporation
By:
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Name:
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Its:
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COMPANY
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