Exhibit 10(i)
FIRST AMENDMENT
TO THE
RESTRUCTURING, SECURITY AND GUARANTY AGREEMENT
THIS AGREEMENT, made and entered into as of the 30th day of December, 1993,
(the "First Amendment") by and among CENCOR, INC., a Delaware corporation
("CenCor"); CONCORDE CAREER COLLEGES, INC., a Delaware corporation ("Concorde");
MINNESOTA INSTITUTE OF MEDICAL AND DENTAL ASSISTANTS, INC., a Minnesota
corporation ("Minnesota"); TEXAS COLLEGE OF MEDICAL AND DENTAL ASSISTANTS, INC.,
a Texas corporation ("Texas"); UNITED HEALTH CAREERS INSTITUTE, INC., a
California corporation ("United"); SOUTHERN CALIFORNIA COLLEGE OF MEDICAL AND
DENTAL ASSISTANTS, INC., a California corporation ("Southern California");
CONCORDE CAREERS - FLORIDA, INC., a Florida corporation ("Florida"); COLLEGES OF
DENTAL AND MEDICAL ASSISTANTS, INC., a California corporation ("Dental"); and
COMPUTER CAREER INSTITUTE, INC., an Oregon corporation ("Computer") (Minnesota,
Texas, United, Southern California, Florida, Dental, and Computer being herein-
after referred to collectively as "Guarantors" and each individually as a
"Guarantor") amends that certain Restructuring, Security and Guaranty Agreement
(the "Agreement") between the parties dated as of October 30, 1992.
RECITALS
(i) Pursuant to the Agreement entered into by CenCor, Concorde and the
Guarantors, Concorde issued a debenture to CenCor in the principal amount of
$5,422,307, dated October 30, 1992 (the "Debenture").
(ii) Under the terms of the Agreement and the Debenture, the interest due
on the principal amount of the Debenture is to be accrued until the commencement
of quarterly payments on September 30, 1995.
(iii) At this time Concorde wishes to pay to CenCor all interest accrued on
the Debenture through and including December 31, 1993, totaling $559,353 (the
"Accrued Interest"), by the assignment of certain of Concorde's receivables to
CenCor, all on the terms and conditions set forth below.
(iv) CenCor wishes to receive payment of the Accrued Interest at this time
through the assignment of such receivables, all on the terms and conditions set
forth below.
(v) Concorde and CenCor wish to amend the Agreement to provide for such
payment of the Accrued Interest.
(vi) The Guarantors, each a wholly-owned subsidiary of Concorde, wish to
reduce the amount of their guaranteed
obligations through such payment of the Accrued Interest and thus consent to the
amendment of the Agreement to provide for such payment.
AGREEMENT
In consideration of the premises and the mutual covenants and agreements
herein contained, CenCor, Concorde and Guarantors agree as follows:
ARTICLE I
DEFINITIONS
1.1 CERTAIN DEFINED TERMS. The following terms used herein shall have the
meanings set forth in this Article and in the other parts of this Agreement
referred to in this Article, and such meanings shall apply to both the singular
and plural forms of such terms.
(a) "Allowable Collection Expenses" shall mean those out-of-pocket
fees and expenses actually paid by CenCor to independent unaffiliated third
party collection agents or legal counsel engaged to collect Receivables
(the "Collection Agents"). It is agreed that selection of a Collection
Agent and the terms of its engagement shall be approved by Concorde, as set
forth in Section 3.2.
(b) "Gross Collections" shall mean the amount of funds collected by
CenCor on the Receivables, provided that if a Student has entered into a
settlement agreement with CenCor which provides for instalment payments,
"Gross Collections" shall only include payments that have been actually
received by CenCor.
(c) "Outstanding Unworked Receivables" means those Receivables at any
given time which (i) have not been collected, either in full, or in part
pursuant to a settlement agreement with the Student, (ii) for which there
is not an installment settlement agreement with the Student, or (iii) for
which all Collection Efforts have not been completed.
(d) "Receivables" shall mean the receivables due on all Accounts (as
defined in the Agreement), itemized on Schedule I (subject to adjustment to
reflect payments received through December 31, 1993) to the Assignment and
Acceptance Agreement, attached hereto as Exhibit A and hereby incorporated
herein by reference (the "Assignment"), having aggregate balances due of
$8,400,071.38, plus any Substituted Receivables subsequently assigned to
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CenCor pursuant to Section 4.1, hereof, it being understood that all
Receivables are accounts or notes receivable which have previously been
written off by Concorde or a Guarantor for financial statement purposes,
pursuant to Concorde's historical accounting practices.
(e) "Remainder of Accrued Interest" shall mean the amount by which,
if any, the amount of Accrued Interest exceeds CenCor's Gross Collections
net of Allowable Collection Expenses.
(f) "Students" shall mean the obligors on the Receivables.
(g) "Worked Receivables" are those Receivables which remain
uncollected (and for which no settlement agreement has been entered into)
after completion of all Collection Efforts with respect to each such
Receivable.
1.2 OTHER TERMS. All capitalized terms used herein, not defined in
Section 1.1 or elsewhere in this First Amendment, shall have the meanings and be
as defined in the Agreement.
ARTICLE II
ASSIGNMENT AND PAYMENT OF ACCRUED INTEREST
2.1 ASSIGNMENT OF RECEIVABLES. Subject to the terms and conditions
contained herein, Concorde hereby transfers, assigns and conveys the Receivables
having an aggregate face value of $8,390,000, to CenCor.
2.2 ACCEPTANCE OF PAYMENT OF ACCRUED INTEREST. Subject to the terms and
conditions contained herein, including without limitation the execution and
delivery to CenCor of all consents, releases and other documents set forth in
Article VII, CenCor hereby accepts the assignment of the Receivables, as payment
in full of the Accrued Interest, which totaled $559,353 at December 31, 1993.
2.3 ASSIGNMENT OF FUTURE PAYMENTS. In the event any Students make
payments on the Receivables to Concorde or a Guarantor after the date hereof, it
is agreed that any such payments shall be delivered to CenCor.
2.4 WITHOUT RECOURSE. This assignment shall be without recourse, and
CenCor shall fully assume all risks of nonpayment of the Receivables, subject to
the limited Right of Substitution set forth in Section 4.1
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ARTICLE III
TERMS OF ASSIGNMENT
3.1 DELIVERY OF DOCUMENTATION. Commencing on or about March 4, 1994
Concorde will deliver to CenCor all relevant documentation underlying each of
the Receivables, including copies of ledger cards, enrollment agreements,
promissory notes (if existing), and any documentation, available to either
Concorde or the Guarantors, concerning prior collection efforts on the part of
any of them or their agents. In order to facilitate the efficient and orderly
recording and processing of this documentation, itemized deliveries will be made
weekly, each such delivery covering groups of Receivables aggregating $750,000
to $1,000,000 in face value, until the documentation for all the Receivables has
been delivered. Deliveries shall be made to CenCor at its offices at City
Center Square, 1100 Main Street, Suite 2350, Kansas City, Missouri 64105, or
such other location that CenCor shall designate in writing.
3.2 COLLECTION EFFORTS. In consideration of the Right of Substitution
afforded to CenCor and in light of the Right of Credit, CenCor agrees that it
will take reasonable steps to collect, in full or part, in a lump sum or in
installment payments, each of the Receivables (the "Collection Efforts"),
including, but not necessarily limited to reasonable search efforts to locate
the Student (if necessary) and if the Student's location is known or determined:
(a) initial telephone contact with the Student and, if collection is
not obtained as a result thereof;
(b) the sending of a default letter, outlining liability and
penalties for failure to pay or settle the Receivable, by certified mail to
Student and, if collection is not obtained as a result thereof;
(c) reasonable follow-up telephone contact with the Student and, if
collection is not obtained as a result thereof;
(d) management review as to feasibility of legal action to collect.
These Collection Efforts shall be made by a Collection Agent or Agents hired by
CenCor, subject to Concorde's reasonable approval as to such employment and the
terms of engagement (including fee schedules, acceptable collection procedures
and settlement parameters, and provision of adequate indemnification of Concorde
for any liability resulting from such agent's collection or settlement
activities, which is secured by adequate insurance coverage). Furthermore,
Concorde shall have the right to reasonably request that CenCor terminate its
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engagement with a given Collection Agent within 30 days of such written request.
In addition to the Collection Efforts, CenCor may elect to (i) settle a
Receivable for a partial payment, in cash or in installments, (ii) turn a
Receivable over to legal counsel for collection, or (iii) make such other
efforts through a Collection Agent to obtain collection as CenCor deems
appropriate.
3.3 RECORD KEEPING AND REPORTS. CenCor shall maintain, or cause its
Collection Agents to maintain, a record on each Receivable as to efforts made to
collect each such Receivable; the terms of any settlement entered into with
respect to each such Receivable; all amounts received by CenCor in connection
with each such Receivable; and the amount, if any, of Allowable Collection
Expenses actually paid with respect to each such Receivable. CenCor shall
provide, or cause its Collection Agents to provide, to Concorde (with copies to
Mark Twain Kansas City Bank, a Missouri banking corporation ["Mark Twain"])
reports, at least quarterly, which set forth the foregoing and report, in
aggregate:
(a) the amount of Gross Collections, in the preceding period and from
contract inception to date; and
(b) the amount of Allowable Collection Expenses paid by CenCor (and
to whom) on the Receivables, in the preceding period and from contract
inception to date.
ARTICLE IV
RIGHTS OF SUBSTITUTION AND CREDIT
4.1 RIGHT OF SUBSTITUTION. Subject to the provisions set forth herein,
provided that CenCor has not yet recouped an amount equal to one hundred percent
(100%) of the Accrued Interest, and a Remainder of Accrued Interest exists,
CenCor shall have a limited right of substitution as to the Receivables (the
"Right of Substitution"), and may elect to reassign certain Worked Receivables
to Concorde in exchange for the assignment from Concorde or the Guarantors of
additional receivables of equal face value ("Substituted Receivables").
(a) This Right of Substitution may be exercised once every six
months, commencing six months after the date of the first delivery of
Receivables, pursuant to Section 3.1, by CenCor giving written notice of
its election to exercise its Right of Substitution to Concorde. This Right
of Substitution shall terminate at such time as CenCor has recouped an
amount equal to one hundred percent (100%) of the Accrued Interest.
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(b) The amount of Receivables as to which CenCor may exercise this
Right of Substitution shall be limited to the amount of Receivables that
constitute Worked Receivables on the date of exercise of the right, up to a
maximum face amount equal to the then current Remainder of Accrued Interest
multiplied by fifteen.
(c) The amount of Worked Receivables to be Substituted may only be
exercised as to $100,000 (one hundred thousand dollar) blocks, based on
face value (unless Concorde's total receivables available for substitution
at such time are less than $100,000, in which case the total amount of such
receivables shall be the cap).
(d) Substituted Receivables shall be selected at the discretion of
Concorde and limited to its then outstanding receivables which have been
written off by Concorde or the Guarantors for financial statement purposes
pursuant to Concorde's historical accounting practices and which comply
with the representations and warranties set forth in Section 8.1.
4.2 RIGHT OF CREDIT. In the event the amount of CenCor's Gross
Collections, less Allowable Collection Expenses, exceeds the amount of the
Accrued Interest, the amount of such excess (the "Overage") shall be:
(a) paid to Concorde as reimbursement of amounts paid by Concorde in
legal fees and expenses, either to Concorde's legal counsel or CenCor's
legal counsel (pursuant to Section 9.1) in connection with the negotiation,
preparation and implementation of this First Amendment; and
(b) to the extent the Overage exceeds such reimbursement, retained by
CenCor but applied as a credit to any amounts owing from Concorde to CenCor
under the Debenture, first to interest which has accrued since December 31,
1993 and then, to the extent of any excess Overage, either to prepayment of
principal or to prepayment of future interest payments due, at the option
of Concorde.
In the event of an Overage, and in lieu of creating additional Overages, CenCor
may elect to cease its Collection Efforts on Outstanding Unworked Receivables by
reassigning those remaining Outstanding Unworked Receivables to Concorde and/or
may assign any outstanding installment payments on settlement agreements with
Students to Concorde.
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ARTICLE V
AMENDMENT OF AGREEMENT
5.1 PAYMENT TERMS AND MATURITY. Section 2.3 of the Agreement is hereby
amended by the addition of the following subsection at the end of the existing
text:
"(e) Notwithstanding the foregoing, the interest accrued from the date of
issuance of the Debenture through and including December 31, 1993 shall be
prepaid by Concorde through the Assignment of the Receivables. In the
event the Collection Efforts of CenCor, pursuant to the terms of the First
Amendment, yield an Overage, the amount of such Overage shall be (a) paid
to Concorde as reimbursement of amounts paid by Concorde in legal fees and
expenses, either to Concorde's legal counsel or CenCor's legal counsel
(pursuant to Section 9.1 of the First Amendment) in connection with the
negotiation, preparation and implementation of the First Amendment; and (b)
to the extent the Overage exceeds such reimbursement, retained by CenCor
but applied as a credit first against the interest on the Debenture then
accrued but unpaid, and then, to the extent of any excess Overage, either
to prepayment of principal or to prepayment of future interest payments
due, at the option of Concorde. Additionally, subject to the written
consent of CenCor's Board of Directors, Concorde and Mark Twain, interest
on the Debenture accrued after December 31, 1993 may be paid or prepaid by
the future assignment of additional receivables, on the same terms as set
forth in the First Amendment, as evidenced by the execution of subsequent
assignments, substantially in the form of Exhibit A, hereto."
5.2 INTEREST: RATE AND TERMS. Section 2.4 of the Agreement is hereby
amended by the addition of the following sentence at the end of the existing
text:
"Notwithstanding the foregoing, accrued interest may be prepaid as set
forth in Section 2.3(e), hereof."
5.3 NOTICES. Section 10.6 of the Agreement is hereby amended to read as
follows:
10.6 NOTICES. All notices, requests, demands and other communications
required or permitted by this Agreement shall be in writing and shall be
given to or made upon the respective parties hereto by depositing the same
in the United States mail, certified or registered, postage prepaid, or by
telegram or
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private courier service, charges prepaid, or by delivery in person, to the
appropriate address set forth below, and shall be deemed given or made when
so deposited in the mail, delivered to the telegraph company or personally
delivered.
IF TO CONCORDE:
Concorde Career Colleges, Inc.
City Center Square
1100 Main Street, Suite 416
Kansas City, Missouri 64105
with a copy to:
Bryan Cave
3300 One Kansas City Place
1200 Main Street
P.O. Box 419914
Kansas City, Missouri 64141-6914
Attention: Lorna Wright
IF TO CENCOR:
CenCor, Inc.
City Center Square
1100 Main Street, Suite 2350
Kansas City, Missouri 64105
with a copy to:
Polsinelli White Vardeman & Shalton
1100 Plaza Steppes Building
700 West 47th Street
Kansas City, Missouri 64112
Attention: Lisa M. Schultes
Either party may change its notice address by giving written notice to the
other party. When given to Concorde as herein provided, notice shall also
be deemed to have been given to all Guarantors. "
5.4 OTHER AMENDMENTS. Additionally, the Agreement shall be amended to
correct certain typographical errors, as set forth below:
(a) The definition of "Transaction Costs" in Section 1. I of the
Agreement is hereby amended to read as follows:
'"TRANSACTION COSTS' means CenCor's reasonable out-of-pocket costs,
fees and
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expenses actually incurred in connection with the restructuring of the
Contract Obligations, evidenced by this Agreement, including Board of
Directors, legal, and consulting fees and expenses, all as supported by
reasonable documentation, which shall be reimbursed by Concorde to the
extent and in the manner as set forth in Section 2.7."
(b) Section 10.7 of the Agreement is hereby amended to read as follows:
"10.7 AMENDMENTS. Concorde, CenCor and Guarantors may from time to time
enter into written agreements supplemental hereto for the purpose of
modifying or adding any provision to this Agreement or changing the rights
and privileges of CenCor, Concorde or any Guarantor hereunder. Any such
supplemental agreement shall be binding upon Concorde, CenCor and
Guarantors and their respective successors and assigns. The provisions of
this Section 10.7 shall not, under any circumstances, limit CenCor's
rights, or Concorde's or any Guarantor's obligations, under Section 3.3 or
any other provision of this Agreement."
(c) Section 10.12 of the Agreement is hereby amended to read as follows:
"10.12 EXPENSES OF CENCOR. Concorde and Guarantors jointly and severally
agree to pay or reimburse CenCor, on demand, for all reasonable out-of--
pocket costs, fees and expenses, including but not limited to reasonable
attorneys' fees and expenses (whether or not suit be commenced and
including fees and expenses in connection with proceedings in bankruptcy
and appellate courts), if and to the extent not prohibited by applicable
law, incurred or paid by CenCor in connection with the negotiation,
preparation, execution, interpretation and enforcement of this Agreement
and the Debenture (subject to the terms of Section 2.7 hereof), or in
connection with the collection or enforcement of any of the Debenture
Liabilities or the exercise of any of CenCor's rights
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and remedies under the Agreement, all of which costs, fees and expenses
shall become and remain a part of the Debenture Liabilities until paid or
reimbursed and shall bear interest from the date of CenCor's demand until
paid or reimbursed in full."
ARTICLE VI
CROSS INDEMNIFICATIONS
6.1 INDEMNIFICATION BY CONCORDE AND GUARANTORS. Concorde and each of the
Guarantors jointly and severally agree to indemnity and hold harmless CenCor
from and against any and all damages, losses, and expenses (including attorney
fees and expenses) directly incurred, sustained or suffered by or asserted
against CenCor resulting from, arising out of, relating to, or caused by (a) the
breach of any representation or warranty contained in Section 8.1, (b) any
breach or failure on the part of Concorde or any Guarantor to perform or comply
with any obligation, agreement or covenant hereunder, or (c) a claim by a
Student with respect to the transactions giving rise to a given Receivable or
the collection efforts by Concorde, any Guarantor, or their agents prior to the
delivery of documentation to Cencor or its Collection Agents with respect to
such Receivable pursuant to Sections 3.1 or 4.1, as applicable; provided however
that such indemnity as to claims by Students shall not extend to losses related
to uncollectibility of such Receivables, provided, however, that any payments
made pursuant to this Section 6.1 shall be subordinated to Mark Twain's superior
right of payment for amounts due and owing pursuant to that certain Revolving
Credit, Security and Guaranty Agreement, dated as of September 3, 1991, and
amended April 30, 1992 and April 30, 1993, among Mark Twain, Concorde and the
Guarantors (the "Mark Twain Agreement").
6.2 INDEMNIFICATION BY CENCOR. CenCor agrees to indemnity and hold
harmless Concorde and each of the Guarantors from and against any and all
damages, losses, and expenses (including attorney fees and expenses) directly
incurred, sustained or suffered by or asserted against any of them resulting
from, arising out of, relating to, or caused by (a) the breach of any
representation or warranty contained in Section 8.2, (b) any breach or failure
on the part of CenCor to perform or comply with any obligation, agreement or
covenant hereunder, or (c) any actions taken by CenCor, or its agents, in
connection with collection activities with respect to the Receivables, which
have been taken in the absence of Concorde's rights of approval set forth in
Section 3.2, or any actions taken by CenCor or its affiliates in contravention
of Concorde's rights of approval set forth in Section 3.2.
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ARTICLE VII
CONSENTS AND RELEASES
7.1 CONSENT TO TRANSACTION. Attached as Exhibit B hereto is the consent
(the "Mark Twain Consent") of Mark Twain, Concorde's primary lender, under the
Mark Twain Agreement, whereby Mark Twain consents to Concorde's prepayment of
Accrued Interest and the Assignment of the Receivables, all pursuant to the
terms hereof.
7.2 RELEASE OF SECURITY INTERESTS.
(a) As set forth in the Mark Twain Consent, Mark Twain has agreed to
release any and all security interests it has in the Receivables, granted
to it either by Concorde or any of the Guarantors pursuant to the Mark
Twain Agreement, and has agreed to execute all necessary UCC statements,
and/or other documents, necessary to effectuate such release.
(b) Concorde hereby agrees to release any and all security interests
it has in the Receivables granted to it by the Guarantors pursuant to the
Mark Twain Agreement, the Agreement, or otherwise and has agreed to execute
all necessary UCC statements, and/or other documents, necessary to
effectuate such release.
7.3 ASSIGNMENTS. Concorde and each Guarantor agrees to execute all
assignments, powers of attorney and other documents, in form and substance
satisfactory to CenCor's counsel, to transfer the Receivables to CenCor and to
grant CenCor or its agent the right to file suit on behalf of or in the name of
Concorde to collect such Receivables.
ARTICLE VIII
REPRESENTATIONS
8.1 OF CONCORDE AND GUARANTORS.
(a) Subject to the release of the security interests held by Mark
Twain and Concorde, as set forth in Section 7.2, and those granted to
CenCor under the Agreement, Concorde is the owner of the Receivables, free
and clear from any Lien or other right, title or interest of any other
persons and free from any restriction on transfer.
(b) Concorde is a corporation duly organized and validly existing in
good standing under the laws of the State of Delaware. Each Guarantor is a
corporation duly organized and existing in good standing under the laws of
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the jurisdiction in which it is incorporated, as indicated in the first
paragraph of this Agreement.
(c) Each of Concorde and Guarantors has all requisite power and
authority to enter into and perform this First Amendment and to execute,
deliver and perform its obligations thereunder. The First Amendment has
been duly authorized by all necessary corporate action by and has been duly
executed and delivered by authorized officers of Concorde and Guarantors,
and is the valid agreement and obligation of Concorde and Guarantors
legally binding upon and enforceable against them, in accordance with its
terms.
(d) Subject to the Mark Twain Consent, as set forth in Section 7.1,
neither the execution nor the delivery of this First Amendment nor
Concorde's and Guarantors' performance of and compliance with the terms and
provisions hereof, will conflict with, or result in a breach of, the terms,
conditions or provisions of, or constitute a default under, or result in
any violation of, or result in the creation of any Lien upon any of the
Assets of Concorde or any of the Guarantors pursuant to, or require any
authorization, consent, approval, exemption or other action by or notice to
or filing with any court, governmental body, administrative agency or other
Person pursuant to, the charter or bylaws of Concorde or any of the
Guarantors, any agreement (including any agreement with stockholders),
lease, indenture, mortgage, security agreement or other instrument (other
than agreements, leases, indentures, mortgages, security agreements and
other instruments relating to the Mark Twain Liabilities), or any order,
judgment, decree, arbitration award, law, rule or regulation to or by which
Concorde or any of the Guarantors or any of Concorde's Assets are subject
or bound.
(e) The Receivables are and will be valid debts owed by Students,
fully transferrable and assignable to CenCor. None of the Receivables are,
nor will be, (i) guaranteed student loans, (ii) subject to any rules or
regulations of the U.S. Department of Education regarding collection
procedures, or (iii) subject to any pending, or to Concorde's knowledge,
threatened, litigation or counterclaim by a Student.
8.2 OF CENCOR.
(a) CenCor is a corporation duly organized and validly existing in
good standing under the laws of the State of Delaware.
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(b) CenCor has all requisite power and authority to enter into and
perform this First Amendment and to execute, deliver and perform its
obligations thereunder. The First Amendment has been duly authorized by
all necessary corporate action by and has been duly executed and delivered
by authorized officers of CenCor and is the valid agreement and obligation
of CenCor legally binding upon and enforceable against it, in accordance
with its terms.
(c) Neither the execution nor the delivery of this First Amendment
nor CenCor's performance of and compliance with the terms and provisions
hereof, will conflict with, or result in a breach of, the terms, conditions
or provisions of, or constitute a default under, or result in any violation
of, or require any authorization, consent, approval, exemption or other
action by or notice to or filing with any court, governmental body,
administrative agency or other Person pursuant to, the charter or bylaws of
CenCor, any agreement (including any agreement with stockholders), lease,
indenture, mortgage, security agreement or other instrument, or any order,
judgment, decree, arbitration award, law, rule or regulation to or by which
CenCor is subject or bound.
ARTICLE IX
Miscellaneous
9.1 ATTORNEYS' FEES. Notwithstanding anything in the Agreement or herein
to the contrary, Concorde shall pay to CenCor in cash CenCor's expenses in
connection with the negotiation of this First Amendment and the consummation of
the transaction contemplated thereby, including attorneys' fees and expenses, of
which $3,000.00 shall be paid on February 18, 1994 and the remainder within ten
(10) business days after receiving an invoice from CenCor with supporting
documentation, which the parties agree shall not exceed $6,000.00 in the
aggregate.
9.2 RATIFICATION. All provisions of the Agreement not specifically
amended in this First Amendment are hereby ratified and reaffirmed.
9.3 Governing Law. Except as otherwise provided by express reference to
the Uniform Commercial Code, this First Amendment shall be construed in
accordance with and governed by the laws, statutes and decisions of the State of
Missouri, to the nonexclusive jurisdiction of whose courts, state and federal,
Concorde and Guarantors irrevocably agree to submit.
9.4 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an
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original and all of which together shall constitute one and the same instrument.
9.5 FURTHER ASSURANCES. Concorde and the Guarantors will execute, and
pursuant to the provisions of the Mark Twain Consent, Mark Twain Bank will
execute, all additional documents reasonably necessary to effectuate the
transaction contemplated herein, including without limitation those documents to
transfer the Substituted Receivables to CenCor free and clear of all liens and
encumbrances.
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to
the Agreement to be executed by their respective duly authorized officers as of
the day and year first above written.
Oral agreements or commitments to loan money, extend credit or to forbear
from enforcing repayment of a debt including promises to extend or renew
such debt are not enforceable. To protect the debtor and creditor from
misunderstanding or disappointment, any agreements we reach covering such
matters are contained in this writing, which is the complete and exclusive
statement of the agreement between us, except as we may later agree in
writing to modify it.
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CENCOR, INC.
ATTEST:
/s/ Lisa M. Henak By: /s/ Patrick F. Healy
- ------------------------ -------------------------
Secretary Patrick F. Healy,
Vice President-Finance
ACKNOWLEDGEMENT
STATE OF MISSOURI )
) ss.
COUNTY OF JACKSON )
BE IT REMEMBERED, that on this 18th day of February, 1994, before me the
undersigned, a notary public in and for said state, came Patrick F. Healy, Vice
President-Finance of CenCor, Inc., a Delaware corporation, to me personally
known to be such officer and the same person who executed as such officer the
foregoing instrument on behalf of said corporation, and such person duly
acknowledged the execution of the same to be the act and deed of said
corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal at my office in Kansas City, Missouri, the day and year last above
mentioned.
/s/ Lisa M. Henak
------------------------------
Notary Public in and for said
County and State
My commission expires:
September 7, 1996
- ----------------------
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CONCORDE CAREER COLLEGES, INC.
ATTEST:
/s/ Lisa M. Henak By:/s/ M. Gregg Gimlin
- ------------------------ -------------------------------
M. Gregg Gimlin M. Gregg Gimlin
Secretary Vice President
ACKNOWLEDGEMENT
STATE OF MISSOURI )
) ss.
COUNTY OF JACKSON )
BE IT REMEMBERED, that on this 18th day of February, 1994, before me the
undersigned, a notary public in and for said state, came M. Gregg Gimlin, Vice
President of Concorde Career Colleges Inc., a Delaware corporation, to me
personally known to be such officer and the same person who executed as such
officer the foregoing instrument on behalf of said corporation, and such person
duly acknowledged the execution of the same to be the act and deed of said
corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal at my office in Kansas City, Missouri, the day and year last above
mentioned.
/s/ Lisa M. Henak
-----------------------------
Notary Public in and for said
County and State
My commission expires:
September 7, 1996
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16
EXHIBIT A
ASSIGNMENTS AND ACCEPTANCE AGREEMENT
Subject to the terms and conditions of the First Amendment to the
Restructuring, Security and Guaranty Agreement, dated as of December 30, 1993,
by and among CenCor, Inc., a Delaware corporation ("CenCor"); Concorde Career
Colleges, Inc., a Delaware corporation ("Concorde"); Minnesota Institute of
Medical and Dental Assistants, Inc.; Texas College of Medical and Dental
Assistants, Inc.; United Health Careers Institute, Inc.; Southern California
College of Medical and Dental Assistants, Inc.; Concorde Careers-Florida, Inc.;
Colleges of Dental and Medical Assistants, Inc.; and Computer Career Institute,
Inc., Concorde does hereby irrevocably assign, transfer, sell, deliver and set
over to CenCor all of Concorde's right, title and interest, as of the close of
business on the date hereof, in and to the receivables listed on Schedule I,
attached hereto and incorporated herein and CenCor hereby accepts such
assignment subject to such terms.
IN WITNESS WHEREOF, the parties hereto have executed this Assignment
Agreement as of December 30, 1993.
CONCORDE CAREER COLLEGES, INC. CENCOR, INC.
By:/s/ M. Gregg Gimlin By:/s/ Patrick F. Healy
---------------------------- ------------------------
M. Gregg Gimlin, Patrick F. Healy,
Vice President Vice President-Finance
SCHEDULE
The Agreement was also signed by officers of the following corporations on
behalf of these corporations:
Minnesota Institute of Medical and Dental Assistants, Inc.
Texas College of Medical and Dental Assistants, Inc.
United Health Careers Institute, Inc.
Southern California College of Medical and Dental Assistants
College of Dental and Medical Assistants, Inc.
Computer Career Institute, Inc.
Concorde Careers - Florida, Inc.