Exhibit 10.28
FIFTH AMENDMENT
TO CREDIT AGREEMENT
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This Fifth Amendment To Credit Agreement (the "Amendment") is entered
into this 28th day of May, 1999, by and among NATIONSBANK, N.A., f/k/a Xxxxxxx
Bank, N.A., a national banking corporation ("Bank"); XXXXXXX EDUCATION GROUP,
INC., f/k/a Xxxxxxx Medical Corp., a Florida corporation ("Borrower" or "You");
and XXXXXXX XXXXX, M.D., an individual, (hereinafter referred to as the
"Guarantor").
WHEREAS, the parties hereto entered into a Credit Agreement dated
April 11, 1996, as amended by amendment dated August 14th, 1996, and as further
amended by amendment dated October 31, 1996, amendment dated May 21, 1997, and
amendment dated April 2, 1999 (collectively the "Credit Agreement"), pursuant to
which the Bank provided to You a Term Loan in the principal amount of $6,000,000
to refinance existing obligations and a Revolving Loan in the principal amount
of $7,500,000 to finance working capital and for general corporate purposes; and
WHEREAS, the parties hereto wish to amend certain provisions of the
Credit Agreement effective as of May 28th, 1999;
NOW THEREFORE, the parties hereto hereby agree as follows:
1. Any capitalized terms not defined herein shall have the same
meaning as given those terms in the Credit Agreement.
2. Sections 2.1(b)(iv) of the Credit Agreement, Revolving Loan, is
hereby amended in its entirety and shall read as follows:
(iv) REPAYMENT. The Borrower agrees to pay all revolving credit
advances outstanding under the Revolver Note in full on or before July 31, 1999.
Once all revolving credit advances have been paid in full, (1) the Borrower
shall have no liability hereunder except for reimbursement obligations in
connection with the letters of credit issued prior to the date hereof by the
Bank for the Borrower or its subsidiaries under this Credit Agreement, as set
forth on Schedule A hereto (the "Letters of Credit"), and (2) no additional
revolving credit advances shall be made hereunder except in connection with the
Letters of Credit. The Borrower agrees to reimburse to the Bank any amounts
drawn under the Letters of Credit on demand and otherwise in accordance with the
terms and conditions set forth herein. The Borrower may, at its option, provide
full cash collateral to the Bank for the full amount and term of the Letters of
Credit, in form and substance satisfactory to the Bank, in order to obtain a
release of the Guarantor from its obligations hereunder.
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3. Except as otherwise provided herein, all other terms and conditions
of the Credit Agreement are hereby restated, affirmed and incorporated by
reference in their entirety.
4. The Borrower hereby certifies that the representations and
warranties of the Borrower set forth in the Credit Agreement are true and
correct as of the date of this Amendment.
5. The Guarantor hereby acknowledges and agrees that the Continuing
Unlimited Guarantee, dated April 23, 1996, executed by Guarantor for the benefit
of Bank, extends to the Credit Agreement, as amended hereby, and all
indebtedness now or hereafter outstanding under the Amended, Restated and
Consolidated Renewal Revolver Note dated April 2, 1999, including any amounts
that are or will become due and payable to Bank in connection with the Letters
of Credit set forth on Schedule A hereto. The Bank agrees that it will release
the Guarantor from its obligations hereunder if the Borrower provides the Bank
with cash collateral, on terms and conditions satisfactory to the Bank, for the
full amount and term of the obligations under the Letters of Credit.
6. This Amendment shall be governed by and interpreted in accordance
with the laws of the State of Florida.
7. This Amendment may be executed by one or more of the parties to
this Amendment in any number of separate counterparts and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
8. In consideration of the amendment to the Credit Agreement
contemplated hereby, Borrower shall pay the reasonable fees and expenses of
Xxxxxx, Xxxxx & Xxxxxxx LLP, Florida counsel to the Bank, incurred in connection
with the preparation of this Amendment, contemporaneously with the execution
thereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered by the proper and duly authorized officers as of
the day and year first above written.
BANK:
NATIONSBANK, N.A.
By: /s/ XXXXXX X. XXXXXXX
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Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President
BORROWER:
XXXXXXX EDUCATION GROUP, INC.
By: /s/ XXXXX X. XXXXX
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Xxxxx X. Xxxxx
President
GUARANTOR:
/s/ XXXXXXX XXXXX, M.D.
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Xxxxxxx Xxxxx, M.D.
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SCHEDULE A
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Letters of Credit issued by the Bank for the Borrower or its subsidiaries
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(A) L/C Number M525917, dated May 13, 1998, in the amount of $65,116.28 for
beneficiary Aetna Real Estate Associates, L.P. (for applicant Xxxxxxx Education
Group),
(B) L/C Number 973442, dated October 30, 1998, in the amount of $27,000 for
beneficiary U.S. Department of Education (for applicant Ultrasound Technical
Services, Inc.),
(C) L/C Number 973443, dated October 30, 1998, in the amount of $135,000
for beneficiary U.S. Department of Education (for applicant Ultrasound Technical
Services, Inc.),
(D) L/C Number 973444, dated October 30, 1998, in the amount of $78,000 for
beneficiary U.S. Department of Education (for applicant Ultrasound Technical
Services, Inc.),
(E) L/C Number 973445, dated October 30, 1998, in the amount of $50,000 for
beneficiary U.S. Department of Education (for applicant Colorado Technical
University), and
(F) L/C Number 514222, dated April 8, 1996, in the amount of $465,000 for
beneficiary Maryland Higher Education Commission (for applicants Xxxxxxx
Education Group and Ultrasound Technical Services).
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