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Exhibit 4.18
SECOND AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT is made as
of the 31st day of July, 1996 (the "Second Amendment") to that certain Amended
and Restated Credit Agreement dated as of March 16, 1995, as previously amended
by the First Amendment to Amended and Restated Credit Agreement dated as of
October 13, 1995 (the Amended and Restated Credit Agreement as previously
amended, together with all exhibits and schedules thereto, the "Original
Agreement") (the Original Agreement as amended by the Second Amendment,
together with all extensions, substitutions, replacements, restatements and
other amendments or modifications thereof or thereto, the "Credit Agreement")
by and among EDUCATION MANAGEMENT CORPORATION, a corporation organized and
existing under the laws of the Commonwealth of Pennsylvania (the "Borrower"),
the FINANCIAL INSTITUTIONS listed on the signature pages to this Second
Amendment (individually a "Bank" and collectively the "Banks"), PNC BANK,
NATIONAL ASSOCIATION as the issuer of letters of credit under the Credit
Agreement (in such capacity the "Issuing Bank") and PNC BANK, NATIONAL
ASSOCIATION, a national banking association as the agent for the Banks (in such
capacity the "Agent").
WITNESSETH:
WHEREAS, the Borrower and the Banks, the Issuing Bank and the Agent
desire to amend the Original Agreement as set forth herein.
NOW, THEREFORE, in consideration of the terms and conditions contained
herein, and other good and valuable consideration, the parties hereto,
intending to be legally bound, hereby agree as follows:
ARTICLE I
AMENDMENTS TO ORIGINAL AGREEMENT
FIRST: Section 1.1 of the Original Agreement is hereby amended in the
following particulars:
1. The definition of "Bank Indebtedness" is amended and restated in its
entirety to read as follows:
"Bank Indebtedness" means the liability of the Borrower, as of any
date of determination, without duplication, to pay the Commitment Fee,
the Agent's Fee,
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the Letter of Credit Fees, the Issuance Fee, the outstanding principal
amount of the Revolving Credit Loans, the Term Loans and the Additional
Term Loans, any draws upon any Letter of Credit, interest thereon, any
other amounts due pursuant to Article II hereof and all reasonable
out-of-pocket expenses incurred by the Banks or the Agent in connection
with the preparation, negotiation, administration, enforcement of this
Credit Agreement, the Revolving Credit Notes, the Amended and Restated
Term Notes, the Additional Term Notes, the other Loan Documents, the
transactions contemplated thereby, or the protection of the Agent's, the
Banks' or the Issuing Bank's rights under any of the foregoing described
instruments (including but not limited to the reasonable fees and expenses
of counsel) to the extent such expenses are the responsibility of the
Borrower pursuant to this Credit Agreement.
2. The definition of "Eurodollar Rate" is amended and restated in its
entirety to read as follows:
"Eurodollar Rate" means, with respect to each Eurodollar Rate Loan,
the rate of interest per annum with respect to any Interest Period
obtained by the Agent by dividing (i) the rate of interest determined by
the Agent in accordance with its usual procedures (which determination
shall be conclusive, absent manifest error) to be equal to the offered
rates for deposits in Dollars for the applicable Eurodollar Interest
Period which appear on Page 3750 of the TELERATE rate reporting system,
or a comparable replacement as determined by the Agent approximately
11:00 a.m., Greenwich Mean Time two (2) Business Days prior to the first
day of each Interest Period for an amount comparable to the Eurodollar
Rate Loan for such Interest Period and having a borrowing date and a
maturity comparable to such Interest Period by (ii) a number (expressed
as a decimal) equal to (A) 1.00 minus (B) the Eurodollar Reserve
Percentage, if any. The Eurodollar Rate described above may also be
expressed by the following formula:
Eurodollar Rate = Offered Rate on TELERATE Page 3750
------------------------------------
1.00 - Eurodollar Reserve Percentage
If more than one offered rate appears on Page 3750 of the TELERATE rate
reporting system or similar system, the rate will be the arithmetic mean
of such offered rates.
3. The definition of "Loan" is amended and restated in its entirety to
read as follows:
"Loan" means any Revolving Credit Loan, Term Loan or Additional Term
Loan.
4. The definition of "Note" is amended and restated in its entirety to
read as follows:
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"Note" means any or all of the Revolving Credit Notes, the Amended
and Restated Term Notes and the Additional Term Notes.
5. The definition of "Term Loan" is amended and restated in its entirety
to read as follows:
"Term Loan" means a term loan described in Subsections 2.1a through
2.1g hereof.
6. A definition of "Additional Term Loan" is added which shall read as
follows:
"Additional Term Loan" means a term loan described in Subsections
2.1h through 2.1n hereof.
7. A definition of Additional Term Loan Fee is added which shall read as
follows:
"Additional Term Loan Fee" means the fee described in Section 2.1n
hereof.
8. A definition of "Additional Term Loan Account" is added which shall
read as follows:
"Additional Term Loan Account" means a bookkeeping account
established at each Revolving Credit Bank in the name of the Borrower
pursuant to Subsection 2.1m hereof.
9. A definition of "Additional Term Loan Amount" is added which shall read
as follows:
"Additional Term Loan Amount" means the amount of the Preferred
Stock Repurchase Draw which is converted on March 31, 1997 into the
Additional Term Loan.
10. A definition of "Additional Term Loan Note" is added which shall read
as follows:
"Additional Term Loan Note" means an Additional Term Loan Note
substantially in the form of Exhibit "K."
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11. A definition of "IPO" is added which shall read as follows:
"IPO" means the initial public offering of the Borrower's common
stock.
12. A definition of "Preferred Stock Redemption Agreement" is added which
shall read as follows:
"Preferred Stock Redemption Agreement" means (i) the agreement
between the Borrower and the ESOP pursuant to which the Borrower agrees
to redeem up to approximately 98,000 shares of the Borrower's issued and
outstanding Series A 10.19% convertible preferred stock at a price of
$101.43 per share together with accrued and unpaid dividends thereon
together with (ii) any and all other agreements related thereto and
executed in connection therewith.
13. A definition of "Preferred Stock Redemption Draw" is added which shall
read:
"Preferred Stock Redemption Draw" means the single Disbursement
under Section 2.2 of the Agreement for the purpose and under the
conditions set forth in item (e) of Section 5.1 hereof.
14. A definition of "Second Amendment" is added which shall read:
"Second Amendment" means the Second Amendment to Amended and
Restated Credit Agreement dated as of July 31, 1996.
SECOND: Section 1.3 of the Original Agreement is hereby amended to add to
the end thereof the following items (v) and (vi) which shall read as follows:
(v) On and after the date of the Second Amendment each reference to
Society National Bank in each of the Loan Documents shall be deemed to
mean KeyBank, National Association.
(vi) On and after the date of the Second Amendment each reference
to Integra Bank or National City Bank shall be deemed to mean National
City Bank of Pennsylvania.
THIRD: Section 2.1 of the Original Agreement is hereby amended (i) to
change its title to "The Term Loans" and (ii) to add to the end thereof
Subsections 2.1h through 2.1n inclusive, which shall read as follows:
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2.1h Additional Term Loan. On March 31, 1997 the unpaid amount of
the Preferred Stock Redemption Draw shall be converted into the
Additional Term Loans with each Revolving Credit Bank receiving an
Additional Term Loan in an amount determined by multiplying the aggregate
Additional Term Loan Amount by such Revolving Credit Bank's Commitment
Percentage.
2.1i Additional Term Notes. The obligation of the Borrower to repay
the Additional Term Loans shall be evidenced by Additional Term Notes
each substantially in the form of Exhibit "K" hereto dated March 31,
1997, one made payable to each Bank in the amount of each Revolving
Credit Bank's share of the Additional Term Loan determined in accordance
with Subsection 2.1h above.
2.1j Repayment of Additional Term Loans. The Additional Term Loans
shall be repaid in twenty consecutive equal quarterly payments of
principal with the first such payment due on July 1, 1997 and continuing
thereafter on each succeeding October 1, January 1, April 1 and July 1
until payment in full. The foregoing notwithstanding, the remaining
outstanding principal balance of the Additional Term Loans shall be due
and payable on the Repayment Date.
2.1k Interest. The Additional Term Loan Notes shall bear interest
from the date thereof until payment in full as set forth in Section 2.4
hereof.
2.1l Prepayment.
(i) Mandatory Prepayment. Net Offering Proceeds shall be
immediately applied by the Borrower as and when received to prepay in
full the Additional Term Loan.
(ii) Voluntary Prepayment. The Additional Term Loans may be prepaid
in whole or in part at any time by the Borrower; provided, however (i)
each partial prepayment shall be in the aggregate principal amount of
$1,000,000 or more; (ii) the Borrower shall have given the Agent not less
than three (3) Business Days' prior written notice of each voluntary
prepayment, the aggregate principal amount to be prepaid and the date of
such prepayment and (iii) the Borrower shall have complied with the
provisions of Section 2.5 hereof. Notice of prepayment having been
given, the principal amount specified in such notice shall become due and
payable on such date.
2.1m Additional Term Loan Account. Each Revolving Credit Bank shall
open and maintain on its books an Additional Term Loan Account in the
Borrower's name with respect to such Bank's Additional Term Loan Amount,
prepayments thereon, the computation and payment of interest and the
computation of other amounts due and sums paid to the Agent, on behalf of
such Revolving Credit
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Bank, pursuant to this Section 2.1. Except in the case of manifest error,
the Additional Term Loan Accounts shall be conclusive and binding on the
Borrower as to the amount at any time due such Revolving Credit Bank from
the Borrower pursuant to this Section 2.1.
2.1n Additional Term Loan Fee. On the earlier to occur of (i) the
date on which the Credit Agreement is terminated and all amounts
thereunder are paid in full by reason of the Borrower obtaining
replacement debt financing or (ii) March 31, 1997, if between the date of
the Second Amendment and March 31, 1997 the Borrower has not received Net
Offering Proceeds of at least $10,000,000, the Borrower shall pay to
Agent a fee in the amount of $87,500, for the pro rata benefit of the
Revolving Credit Banks in accordance with their respective Commitment
Percentages.
FOURTH: Subsection 2.2g of the Original Agreement is hereby amended and
restated in its entirety to read as follows:
2.2a Revolving Credit Commitment. The Revolving Credit Commitment
shall be automatically and permanently reduced by $5,000,000 annually
beginning October 13, 1997 in accordance with the following schedule.
REDUCED REVOLVING
DATE OF REDUCTION CREDIT COMMITMENT
October 13, 1997 $65,000,000
October 13, 1998 $60,000,000
October 13, 1999 $55,000,000
October 13, 2000 $50,000,000
(assuming one or
both of the
extensions of the
Repayment Date have
been agreed to by
the Banks)
The foregoing automatic permanent reductions are in addition to any
voluntary permanent reductions provided for in Subsection 2.2e. If no
extension of the original Repayment Date is granted pursuant to
Subsection 2.2f, the entire outstanding amount of the Revolving Credit
Loans, interest thereon and costs related thereto shall be due and
payable in full on October 13, 2000. Further, in addition to the
foregoing, there will occur on the date of funding of the Additional Term
Loan a mandatory reduction of the Revolving Credit Commitment in the
amount of the Additional Term Loan, and each of the Reduced Revolving
Credit Commitments set forth in the preceding
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schedule shall also be reduced by the initial principal amount of the
Additional Term Loan.
FIFTH: Subsection 2.2 of the Original Agreement is hereby amended by
adding to the end thereof a new Subsection 2.2k which shall read as follows:
2.2k Mandatory Repayment. Net Offering Proceeds received on or
before March 31, 1997 must be immediately applied by the Borrower to
repay the Preferred Stock Redemption Draw. In the event that Net
Offering Proceeds received after the date of the Second Amendment but
prior to March 31, 1997 are insufficient to repay in full the Preferred
Stock Draw on or before March 31, 1997, the unpaid portion of Preferred
Stock Redemption Draw shall be converted into the Additional Term Loan as
set forth in Subsections 2.1h through 2.1m inclusive on March 31, 1997.
SIXTH: Section 4.3 of the Original Agreement is amended and restated in
its entirety to read as follows:
4.3 Capitalization. The outstanding shares of the Class A and Class
B common stock and Series A 10.19% convertible preferred stock have been
duly authorized and validly issued and are fully paid and nonassessable.
As of the Closing Date, all of the Borrower's capital stock is owned by
the Management Stockholders, the ESOP and other Persons as more fully set
forth on Schedule 4.3. As of the Closing Date, the Borrower will not
have outstanding any stock or securities (except for the Series A 10.19%
convertible preferred stock, the Class B common stock, and the Warrants)
convertible or exchangeable for any shares of its common stock, nor,
except as set forth on Schedule 4.3, will it have outstanding any rights
or options to subscribe for or to purchase any of the Borrower's capital
stock or any stock or securities convertible into or exchangeable for the
Borrower's common stock.
SEVENTH: Section 5.1 of the Original Agreement is hereby amended and
restated in its entirety to read as follows:
5.1 Use of Proceeds. Proceeds of the Term Loans hereunder will be
used to purchase the 1989 Term Loans from the 1989 Banks. Proceeds of
the Revolving Credit Loans shall be used by the Borrower (a) to refinance
the revolving credit loans, if any, outstanding under the 1989 Credit
Agreement, (b) for general working capital purposes of the Borrower and
its Active Subsidiaries, including but not limited to capital
expenditures, the acquisition and development of additional schools,
draws to meet DOE regulatory requirements and Permitted Acquisitions, (c)
to refinance the existing Senior Subordinated Notes; provided, however,
such proceeds must be used to repay existing Senior Subordinated Notes in
full not later than October 13, 1995 or the Borrower shall lose the
ability to use proceeds of the
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Revolving Credit Loans for this purpose, (d) for financing of loans to the
ESOP, and (e) provided the provisions of Section 7.3 have been satisfied,
to acquire and hold as treasury shares up to approximately 98,000 shares
of the Borrower's Series A 10.19% convertible preferred stock; provided,
however, proceeds used for such purchase may not exceed $10,000,000 and
must be disbursed in a single Disbursement; and provided, further this
Preferred Stock Repurchase Draw may only be repaid with Net Offering
Proceeds or by the issuance of Additional Term Loan Notes.
EIGHTH: Subsection 5.12a of the Original Agreement is hereby amended and
restated in its entirety to read as follows:
5.12a Continued Ownership of Borrower. At all times during the term
hereof, prior to the IPO being completed, on a fully diluted basis as if
all outstanding securities convertible into common stock had been
converted and all outstanding warrants, options or other rights to
acquire common stock had been exercised, and except as otherwise
permitted by Section 6.13 hereof, (i) the ESOP and the Management
Stockholders will own at least fifty percent (50%) of the total value of
the outstanding stock of the Borrower, (ii) the Permitted Owners will own
at least twelve percent (12%) of the total value of the outstanding
common stock of the Borrower, and (iii) until such time as the Term Loans
are repaid in full, the ESOP will own at least thirty percent (30%) of
the total value of outstanding stock of the Borrower. The foregoing
notwithstanding, it shall not be considered a violation of item (iii)
above if the ESOP fails to own at least thirty percent (30%) of the total
value of outstanding stock of the Borrower by reason of (a) the purchase
by the Borrower of stock pursuant to any Repurchase Obligation, (b) any
distribution to or retention of stock by former ESOP participants or
their beneficiaries or (c) the grant of any options to certain Management
shareholders as additional compensation.
NINTH: A new Section 5.15 shall be added to the Agreement which shall
read:
5.15 Performance under Preferred Stock Redemption Agreement. The
Borrower shall comply with all material provisions of the Preferred Stock
Redemption Agreement and shall purchase not more than approximately
98,000 shares of its Series A 10.19% convertible preferred stock
thereunder.
TENTH: Section 6.1 of the Original Agreement is hereby amended and
restated in its entirety to read as follows:
6.1 Maintenance of Consolidated Net Worth. The Borrower will not permit
or suffer to exist, as of the end of each Fiscal Year set forth below,
its Consolidated Net Worth to be less than the amount set forth below for
such Fiscal Year:
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(i) as of June 30, 1995, $100,000;
(ii) as of June 30, 1996, the sum of (A) the amount of the
minimum Consolidated Net Worth required as of the preceding Fiscal
Year plus (B) one hundred percent (100%) of the Net Offering
Proceeds completed during the preceding Fiscal Year plus (C)
seventy-five percent (75%) of Net Income for the preceding Fiscal
Year (to the extent this is a positive number);
(iii) as of June 30, 1997, the sum of (A) the amount of the
minimum Consolidated Net Worth as of the preceding Fiscal Year, plus
(B) one hundred percent (100%) of the Net Offering Proceeds
completed during the preceding Fiscal Year plus (C) fifty percent
(50%) of Net Income for the preceding Fiscal Year (to the extent
this is a positive number minus the amount of the Preferred Stock
Redemption Draw; and
(iv) as of the end of each Fiscal Year ended after July 1,
1997, the sum of (A) the amount of the minimum Consolidated Net
Worth required for the preceding Fiscal Year (whether pursuant to
(ii) above or as the cumulative result of this clause (iii)) plus
(B) one hundred percent (100%) of the Net Offering Proceeds
completed during the preceding Fiscal Year plus (C) fifty percent
(50%) of Net Income for the preceding Fiscal Year (to the extent
this is a positive number).
ELEVENTH: Section 6.10 of the Original Agreement is amended and restated
to read as follows:
6.10 Restriction of Operating Leases. As of the Closing Date, the
Borrower and its Subsidiaries have in force as lessees the operating
leases set forth on Schedule 6.10 hereto. The Borrower will not, and
will not permit any Subsidiary to, incur to assume any new operating
leases during any Fiscal Year commencing after the Closing Date having
aggregate payments, on a Consolidated basis in such Fiscal Year, (i) in
excess of $1,000,000 for each Fiscal Year ending on or before June 30,
1996 and (ii) in excess of $1,250,000 for each Fiscal Year ending after
July 1, 1996; provided, however, that the foregoing shall not prohibit
(x) the replacement, substitution, extension or renewal of any operating
lease in force prior to the Closing Date or (y) the assumption of any
operating lease as an integral part of a Permitted Acquisition and any
replacement, substitution extension or renewal of any such assumed
operating lease.
TWELFTH: Section 6.12 of the Original Agreement is hereby amended and
restated in its entirety to read as follows:
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6.12a Dividend Restrictions. The Borrower shall not declare or pay
cash dividends or distributions on its capital stock while the Credit
Facility is outstanding, except for (i) the payment of dividends on the
(A) Series A 10.19% preferred stock of the Borrower held by the ESOP or
(B) Class A common Stock of the Borrower to the extent that in excess of
ninety percent (90%) of said common stock dividend is used to repay the
Term Loans and (ii) dividends on any class of stock of the Borrower in an
amount not to exceed the following: (A) the difference between (1)
$1,000,000 in the earlier to occur of (x) any Fiscal Year ended after
July 1, 1996 or (y) any Fiscal Year during which the Borrower's
Consolidated Net Worth is greater than or equal to $20,000,000 minus (2)
any stock redemptions made during such period and permitted pursuant to
clause (A) of Subsection 6.12b below or (B) the difference between (1)
$1,500,000 in any Fiscal Year during which the Borrower's Consolidated
Net Worth is greater than or equal to $45,000,000 minus (2) any stock
redemptions made during such period and permitted pursuant to clause (A)
of Subsection 6.12b below.
6.12b Redemption Restrictions. The Borrower shall not, nor shall it
permit any Subsidiary to, purchase the Borrower's capital stock while the
Credit Facility is outstanding, except for (i) the redemption of any such
capital stock held by the ESOP (x) in connection with the termination of
service of employees of the Borrower or its Subsidiaries or (y) pursuant
to the Preferred Stock Redemption Agreement and (ii) the redemption of any
such capital stock by the Borrower from Management Shareholders as more
fully set forth below.
(A) Upon the death, incapacity, retirement or termination of a
Management Stockholder (other than Xxxxxxx, except as provided below),
the Borrower may purchase such Management Stockholder's capital stock
upon the terms and conditions set forth in the applicable Management
Repurchase Agreement, provided that after giving effect to such purchase
no Event of Default has occurred and is continuing and provided, further
that the aggregate Net Purchase Price of all such purchases does not
exceed in any Fiscal Year beginning on and after July 1, 1994, the sum
of:
(1) the applicable amount from among the following amounts:
(a) $500,000, (b) the difference between (i) $1,000,000 in the earlier to
occur of (A) any Fiscal Year ended after July 1, 1996 or (B) any Fiscal
Year during which the Borrower's Consolidated Net Worth is greater than or
equal to $15,000,000 minus (ii) any dividends paid during such period and
permitted pursuant to item (ii) of Subsection 6.12a above or (c) the
difference between (i) $1,500,000 in any Fiscal Year during which the
Borrower's Consolidated Net Worth is
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greater than or equal to $40,000,000 minus (ii) any dividends paid during
such period and permitted pursuant to item (ii) of Subsection 6.12a above,
plus
(2) the proceeds paid to the Borrower during such Fiscal Year
pursuant to life insurance policies on its employees, plus
(3) the Net Proceeds paid to the Borrower during such Fiscal
Year upon, without duplication (x) the resale or reissuance of the
treasury stock related to repurchased capital stock, or (y) the issuance
stock upon the exercise of stock options.
(B) Upon the death, incapacity, retirement or termination of
Xxxxxxx, the Borrower may purchase his capital stock upon the terms and
conditions set forth in the RBK Exchange and Repurchase Agreement,
provided that after giving effect to such purchase no Event of Default
has occurred or is continuing, and if such purchase is pursuant to the
Initial Put and the Secondary Put (as such terms are defined in the RBK
Exchange and Repurchase Agreement) (1) such purchases do not exceed the
amounts set forth in Section 10(b) of the RBK Exchange and Repurchase
Agreement, and (2) any purchases of capital stock owned by any Permitted
Owner for cash may not exceed the proceeds available for such purposes
under Key Man Life Insurance; provided, however, to the extent that such
Key Man Life Insurance is unavailable or insufficient, the Borrower may
purchase capital stock owned by any Permitted Owner subject to the
limitations set forth in item (A) of this Subsection 6.12b.
The foregoing notwithstanding, the amount permitted to be expended to
redeem the capital stock of the Borrower pursuant to items (A) and (B) of
clause (ii) above only in the immediate Fiscal Year, but not so expended,
may be expended in the next succeeding Fiscal Year for such purposes.
THIRTEENTH: Subsection 6.16 of the Original Agreement is hereby amended
and restated in its entirety to read as follows:
6.16 Alteration of Various Agreements. Except for (i) amendments
and modifications to the Plan Documents necessary to obtain determination
letters from the IRS or to continue to be a qualified plan and trust
under Code Sections 401(a) and 501(a), (ii) amendments to the documents
listed below, which do not alter the provisions regarding redemption of
the capital stock of the Borrower or any Subsidiary, and (iii) amendments
to the documents listed below, which would not
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materially adversely affect the Banks, the Borrower, prior to the IPO
shall not, nor shall it permit any Subsidiary to, amend or modify any of
the following documents:
(A) until such time as the Term Loans are paid in full, the ESOP and
the ESOP Trust;
(B) Management Repurchase Agreements (except as otherwise set forth
on Schedule 6.16 hereto);
(C) Stockholder Agreements; and
(D) Preferred Stock Redemption Agreement.
In addition prior to the IPO, the Borrower shall not, nor shall it permit
any Subsidiary to, amend or modify the Warrants in any material respect.
FOURTEENTH: A new Section 7.3 is hereby added to the Agreement and shall
read as follows:
7.3 Preferred Stock Redemption Draw. The obligation of the
Revolving Credit Banks to make the Revolving Credit Disbursement
constituting the Preferred Stock Redemption Draw is subject, in addition
to being subject to the conditions of Section 7.1, to the following
conditions:
7.3a Preferred Stock Redemption Agreement. Delivery to the Agent of
a fully executed copy of the Preferred Stock Redemption Agreement in form
and substance satisfactory to the Agent and Banks.
7.3b Fairness Opinion. Delivery to the Agent of true and correct
copies of the fairness opinions or valuations addressed to the Trustee by
its financial advisors regarding the redemption of the Series A 10.19%
convertible preferred stock, which opinion shall be in form and substance
satisfactory to the Agent and Banks.
7.3c Legal Opinion. Receipt by the Agent on behalf of the Banks of
a signed favorable opinion of legal counsel to the Borrower as to the
redemption by the Borrower of certain Series A 10.19% convertible
preferred stock pursuant to the Preferred Stock Redemption Agreement
which opinion shall be in form and substance satisfactory to the Agent.
7.3d Proceedings Satisfactory. Receipt by the Agent of evidence
that all proceedings taken in connection with the redemption by the
Borrower of certain of its Series A 10.19% convertible preferred stock
and any other transactions in
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connection therewith has been or, immediately after the Preferred Stock
Redemption Draw, will be duly completed and receipt by the Agent of such
documents and papers, all in form and substance reasonably satisfactory to
the Agent and the Agent's counsel, as the Agent or its special counsel may
reasonably request in connection therewith.
ARTICLE II
CONDITIONS PRECEDENT
This Second Amendment shall become operative as of the date hereof when
each of the following conditions precedent are satisfied in the judgment of the
Agent or have been waived in writing by the Agent:
(a) Second Amendment. Receipt by the Agent on behalf of the Banks and the
Issuing Bank of duly executed counterparts of this Second Amendment from the
Borrower and the Banks and the Issuing Bank.
(b) Closing Certificate. Receipt by the Agent on behalf of the Banks of a
certificate signed by an Authorized Officer of the Borrower dated as of even
date herewith certifying that the representations and warranties set forth in
the Original Agreement are true and correct in all material respects on and as
of the date of this Second Amendment as though made on and as of such date,
except to the extent that such representations and warranties relate solely to
an earlier date (in which case, such representations and warranties shall have
been true and correct on and as of such earlier date).
(c) Second Amendment Closing Fee. Receipt by the Agent of the closing fee
in the amount of $87,500 for the pro rata benefit of the Revolving Credit Banks
in accordance with their respective Commitment Percentages.
(d) Corporate Documents of the Borrower. Receipt by the Agent on behalf
of the Banks of (i) a copy, duly certified as of the date hereof by the
secretary or assistant secretary of the Borrower, of the resolution of the
Borrower's Board of Directors authorizing the execution and delivery of this
Second Amendment and (ii) an incumbency certificate of the Borrower dated as of
the date hereof.
(e) Opinion of Borrower's Counsel. Receipt by the Agent on behalf of the
Banks of a signed favorable opinion of counsel to the Borrower as to the
authority of the Borrower to execute and deliver this Second Amendment, as to
the validity and enforceability thereof and as to such other matters as
reasonably requested by the Agent, all in form and substance satisfactory to
the Agent.
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(f) Consolidated Note. Receipt by National City Bank of Pennsylvania of a
Revolving Credit Note in the maximum amount of $25,000,000 which will also
evidence interest and fees, if any, due under the Revolving Credit Note dated
October 13, 1995 made payable to National City Bank and the Revolving Credit
Note dated October 13, 1995 made payable to Integra Bank.
(g) Proceedings Satisfactory. Receipt by the Agent on behalf of the Banks
of evidence that all proceedings taken in connection with this Second Amendment
and the consummation of the transactions contemplated hereby and all documents
and papers relating hereto have been completed or duly executed, and receipt by
the Agent on behalf of the Banks of such documents and papers, all in form and
substance reasonably satisfactory to the Agent and Agent's special counsel, as
the Agent or its special counsel may reasonably request in connection
therewith.
ARTICLE III
MISCELLANEOUS
FIRST: With the merger of Integra Financial Corporation with and into
National City Corporation, National City Bank and National City Bank of
Pennsylvania (formerly Integra Bank) became Affiliates. With the consent of
the Borrower, the Agent and the Banks, National City Bank hereby transfers and
assigns all of its rights and obligations under the Credit Agreement and the
other Loan Documents to National City Bank of Pennsylvania and National City
Bank of Pennsylvania hereby assumes all of such rights and obligations.
SECOND: Except as expressly amended by this Second Amendment, the
Original Agreement and each and every representation, warranty, covenant, term
and condition contained therein is specifically ratified and confirmed.
THIRD: Except for proper nouns and as otherwise defined or amended
herein, capitalized terms used herein which are not defined herein, but which
are defined in the Original Agreement, shall have the meaning given them in the
Original Agreement.
FOURTH: This Second Amendment shall be binding upon and inure to the
benefit of the Borrower, the Banks, the Issuing Bank, the Agent and their
respective successors and assigns.
FIFTH: Nothing in this Second Amendment shall be deemed or construed to
be a waiver, release or limitation upon the Agent's or any Bank's exercise of
any of their respective rights and remedies under the Original Agreement or the
other Loan Documents,
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whether arising as a consequence of any Events of Default which may now exist,
hereafter arise or otherwise, and all such rights and remedies are hereby
expressly reserved.
SIXTH: This Second Amendment may be executed in as many different
counterparts as shall be convenient and by the different parties hereto on
separate counterparts, each of which when executed by the Borrower, a Bank, the
Issuing Bank and the Agent shall be regarded as an original. All such
counterparts shall constitute but one and the same instrument.
SEVENTH: This Second Amendment shall be a contract made under and
governed by the laws of the Commonwealth of Pennsylvania without regard to the
principles thereof regarding conflict of laws.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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Executed as of the day and year first above written.
EDUCATION MANAGEMENT CORPORATION
By
Name
Title
PNC BANK, NATIONAL ASSOCIATION,
in its capacity as the Agent
By
Name:
Title:
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IN WITNESS WHEREOF, intending to be legally bound hereby, the undersigned
Bank has caused this Second Amendment to Amended and Restated Credit Agreement
by and among EDUCATION MANAGEMENT CORPORATION, the FINANCIAL INSTITUTIONS PARTY
HERETO and PNC BANK, NATIONAL ASSOCIATION, as the Agent, to be executed by its
duly authorized officer as of the date first above written.
Revolving Credit Commitment: PNC BANK, NATIONAL ASSOCIATION, in its
$30,000,000 capacity as a Bank and the Issuing Bank
Commitment Percentage: 42.8571%
By ____________________________________
Name: _________________________________
Title: ________________________________
Addresses for notice purposes:
If by United States Mail: If by other means:
PNC Bank, National Association PNC Bank, National Association
Multi-Bank Loan Administration Multi-Bank Loan Administration
One PNC Plaza - 19th Floor One PNC Plaza - 19th Floor
Xxxxxxxxxx, Xxxxxxxxxxxx 00000 Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx Attention: Xxxxxx X. Xxxxx
Assistant Vice President Assistant Vice President
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
With a copy to:
PNC Bank, National Association
Select Industries Department
Two PNC Plaza - 2nd Floor
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxxxx X. Xxxx
Vice President
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Address for Eurodollar Rate Loan funding if different from above:
_______________________________
_______________________________
_______________________________
Telephone: ____________________
Telecopier: ___________________
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IN WITNESS WHEREOF, intending to be legally bound hereby, the undersigned
Bank has caused this Second Amendment to Amended and Restated Credit Agreement
by and among EDUCATION MANAGEMENT CORPORATION, the FINANCIAL INSTITUTIONS PARTY
HERETO and PNC BANK, NATIONAL ASSOCIATION, as the Agent, to be executed by its
duly authorized officer as of the date first above written.
Revolving Credit Commitment: KEYBANK, NATIONAL ASSOCIATION,
$15,000,000 formerly known as Society National
Bank, in its capacity as a Bank
Commitment Percentage: 21.4286%
By _______________________________
Name: ____________________________
Title: ___________________________
Addresses for notice purposes:
If by United States Mail: If by other means:
KeyBank, National Association KeyBank, National Association
000 Xxxxxx Xxxxxx 000 Xxxxxx Xxxxxx
XX-00-00-0000 XX-00-00-0000
Xxxxxxxxx, Xxxx 00000 Xxxxxxxxx, Xxxx 00000
Attention: Xxxxx Xxxxxxxx Attention: Xxxxx Xxxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
with a copy to:
KeyBank, National Association
000 Xxxxxx Xxxxxx
XX-00-00-0000
Xxxxxxxxx, Xxxx 00000
Attention: Xxxxxxxx X. Xxxx
Vice President
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Address for Eurodollar Rate Loan funding if different from above:
_____________________________
_____________________________
_____________________________
Telephone: __________________
Telecopier: _________________
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IN WITNESS WHEREOF, intending to be legally bound hereby, the undersigned
Bank has caused this Second Amendment to Amended and Restated Credit Agreement
by and among EDUCATION MANAGEMENT CORPORATION, the FINANCIAL INSTITUTIONS PARTY
HERETO and PNC BANK, NATIONAL ASSOCIATION, as the Agent, to be executed by its
duly authorized officer as of the date first above written.
Revolving Credit Commitment: NATIONAL CITY BANK OF PENNSYLVANIA,
$25,000,000 formerly INTEGRA BANK,
in its capacity as a Bank
Commitment Percentage: 35.7143%
By ________________________________
Name: _____________________________
Title: ____________________________
Addresses for notice purposes:
If by United States Mail: If by other means:
National City Bank of Pennsylvania National City Bank of Pennsylvania
000 Xxxxxx Xxxxxx 000 Xxxxxx Xxxxxx
XXX 00-000 XXX 01-151
Pittsburgh, Pennsylvania 15278-5000 Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx, Xx. Attention: Xxxxxxx X. Xxxxx, Xx.
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
with a copy to:
___________________________________
___________________________________
___________________________________
___________________________________
Attention: ________________________
________________________
Telephone: ________________________
Telecopier: _______________________
Address for Eurodollar Rate Loan funding if different from above:
___________________________________
___________________________________
___________________________________
Telephone: ________________________
Telecopier: _______________________
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IN WITNESS WHEREOF, intending to be legally bound hereby, National City
Bank has caused this Second Amendment to Amended and Restated Credit Agreement
by and among EDUCATION MANAGEMENT CORPORATION, the FINANCIAL INSTITUTIONS PARTY
THERETO and PNC BANK, NATIONAL ASSOCIATION, as the Agent to be executed by its
duly authorized officer as of the date first above written solely for the
purpose set forth in paragraph FIRST of ARTICLE III hereof.
NATIONAL CITY BANK
By ____________________________
Name: _________________________
Title: ________________________
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