1
EXHIBIT 4.02
FIRST AMENDMENT TO CREDIT AGREEMENT
This First Amendment to Credit Agreement (the "Amendment") is dated as
of March 31, 2000 and is made by and among EDUCATION MANAGEMENT CORPORATION,
(the "Borrower"), the Banks under the Credit Agreement (as hereafter defined),
CHASE MANHATTAN BANK and SUNTRUST BANK as Additional Banks (hereinafter
sometimes collectively referred to as "Additional Banks" and individually as an
"Additional Bank"), NATIONAL CITY BANK OF PENNSYLVANIA as the Agent and FIRST
UNION NATIONAL BANK, as Co-Agent (NATIONAL CITY BANK OF PENNSYLVANIA and FIRST
UNION NATIONAL BANK are hereinafter collectively referred to as "Agents" in
their capacity as Agents for the Banks under the Credit Agreement).
RECITALS:
WHEREAS, the Borrower, the Banks and the Agents entered into that
certain Credit Agreement dated as of February 18, 2000 (as amended, the "Credit
Agreement"); and
WHEREAS, Chase Manhattan Bank and SunTrust Bank desire to become
parties to the Credit Agreement as Additional Banks; and
WHEREAS, the parties desire to increase the Revolving Credit
Commitments to an aggregate amount of One Hundred Million Dollars ($100,000,000)
pursuant to the terms of the Credit Agreement and to amend certain provisions of
the Credit Agreement, as hereinafter provided, and
WHEREAS, capitalized terms used herein and not otherwise defined shall
have the meanings given to them under the Credit Agreement.
NOW, THEREFORE, in consideration of the foregoing and intending to be
legally bound, the parties hereto agree as follows:
1. Permitted Acquisitions. The parties hereto hereby amend and
restate the definition of Permitted Acquisitions contained in Section 1.1 of the
Credit Agreement to read as follows:
"Permitted Acquisitions" means any acquisition by the Borrower
or any of its Subsidiaries of the assets or stock of a second Person
which complies with each of the following conditions: (i) such second
Person is engaged in the education or training business (whether profit
or non-profit); (ii) such acquisition
2
is not hostile in nature (as determined promptly in the reasonable
discretion of each of the Banks); and (iii) with respect to any
acquisition or series of acquisitions involving assets valued (on a
going concern basis) at more than $2,000,000, the Borrower shall
demonstrate, on a pro forma basis and to the reasonable satisfaction of
the Required Banks, that no Default or Event of Default shall occur as
a result of such acquisition(s).
2. Amendments and Waivers.
(i) The parties hereto hereby amend and restate Clauses (E) and (F) of Section
10.1(a) of the Credit Agreement to read as follows:
(E) amend this Section 10.1;
(F) amend the definition of "Required Banks" or any other
provision of this Credit Agreement specifying the number or
percentage of Banks required to waive, amend or modify any
rights, make any determination or grant any consent
hereunder;
(ii) The parties hereto hereby amend Section 10.1(a) by adding new clauses (G)
and (H) to read as follows:
(G) amend clause (ii) of the definition of "Permitted
Acquisitions;" or
(H) waive compliance with clause (i) of Section 6.12 if the
acquisition for which the waiver is requested is hostile in
nature (as determined promptly in the reasonable discretion
of each of the Banks).
3. Joinders.
Pursuant to the procedures set forth in Section 9.12 of the Credit
Agreement, Chase Manhattan Bank and SunTrust Bank are becoming parties to the
Credit Agreement as of the date hereof by executing and delivering to the Agent,
Bank Joinders substantially in the form of Exhibit "J" to the Credit Agreement
(the "Joinders") and signature pages (including Revolving Credit Commitments and
Supplemental Swing Loan Commitments) to be appended to the Credit Agreement .
This Amendment is deemed to become effective immediately after such Joinders
become effective. The Revolving Credit Commitments, Commitment Percentages and
Supplemental Swing Loan Commitments for the Banks and Additional Banks are as
set forth on Schedule "1" hereto and the Revolving Credit Commitments,
Commitment Percentages and Supplemental Swing Loan Commitments of the Banks (as
referred to in the Credit Agreement) are hereby amended and restated to read as
set forth on Schedule 1.
4. Full Force and Effect. All provisions of the Credit
Agreement remain in full force and effect except as expressly amended hereby.
2
3
5. Counterparts; Effective Date.
This Amendment may be signed in counterparts. This Amendment shall
become effective when (i) it has been executed by the Borrower, the Banks, the
Additional Banks and the Agents; (ii) the Additional Banks have delivered the
Joinders and signature pages to the Credit Agreement to the Agent and the
Joinders have been acknowledged and accepted by the Borrower and the Banks,
(iii) the Borrower has executed and delivered new Revolving Credit Notes and
Supplemental Swing Loan Notes to the Banks and Additional Banks in the amounts
of the Revolving Credit Commitments and Supplemental Swing Loan Commitments
respectively applicable to each Bank and Additional Bank, as set forth on
Schedule 1; and (iv) Borrower has paid to the Agent for the account of each
Additional Bank the Closing Fee provided in Section 2.8 of the Credit Agreement.
[SIGNATURES BEGIN ON NEXT PAGE]
3
4
[SIGNATURE PAGE 1 OF 2 TO FIRST AMENDMENT
TO CREDIT AGREEMENT]
The undersigned have executed this Amendment as of the date first
written above.
EDUCATION MANAGEMENT CORPORATION
By: /s/ Robert T. McDowell
-------------------------------
Name: Robert T. McDowell
Title: Executive Vice President and CFO
NATIONAL CITY BANK OF PENNSYLVANIA,
in its capacity as a Bank, as the
Issuing Bank and as the Agent
By: /s/ Vince J. Delie, Jr.
---------------------------------------
Name: Vince J. Delie, Jr.
-------------------------------------
Title: Vice President and Regional Manager
------------------------------------
FIRST UNION NATIONAL BANK, in its
capacity as a Bank and as Co-Agent
By: /s/ Karl F. Schultz
---------------------------------------
Name: Karl F. Schultz
-------------------------------------
Title: Vice President
------------------------------------
4
5
[SIGNATURE PAGE 2 OF 2 TO FIRST AMENDMENT
TO CREDIT AGREEMENT]
BANK ONE, MICHIGAN
By: /s/ Richard L. Janisse
------------------------------------
Name: Richard L. Janisse
----------------------------------
Title: First Vice President
---------------------------------
CHASE MANHATTAN BANK
By: /s/ John Malone
------------------------------------
Name: John Malone
----------------------------------
Title: Vice President
---------------------------------
SUNTRUST BANK
By: /s/ Alan K. Oakley
------------------------------------
Name: Alan K. Oakley
----------------------------------
Title: Managing Director
---------------------------------
5
6
SCHEDULE 1
COMMITMENT OF BANKS
REVOLVING CREDIT SUPPLEMENTAL SWING COMMITMENT
BANK COMMITMENT LOAN COMMITMENT PERCENTAGE
- ---- ---------- --------------- ----------
National City Bank of Pennsylvania $30,000,000 $7,500,000 30%
First Union National Bank $25,000,000 6,250,000 25%
Bank One, Michigan $20,000,000 5,000,000 20%
Chase Manhattan Bank $10,000,000 2,500,000 10%
SunTrust Bank $15,000,000 3,750,000 15%
----------- ---------- ---
Total $100,000,00 $25,000,000 100%
=========== =========== ====