EXHIBIT 4.09
FOURTH AMENDMENT TO AMENDED
AND RESTATED CREDIT AGREEMENT
This Fourth Amendment to Amended and Restated Credit Agreement (the
"Amendment") is dated as of June 27, 2003, and is made by and among EDUCATION
MANAGEMENT CORPORATION, (the "Borrower"), the BANKS under the Credit Agreement
(as hereafter defined), NATIONAL CITY BANK OF PENNSYLVANIA (the "Agent"), as the
Agent for the Banks and Issuing Bank, WACHOVIA BANK, NATIONAL ASSOCIATION, as
Syndication Agent, SUNTRUST BANK, as Syndication Agent, FLEET NATIONAL BANK, as
Documentation Agent, and JPMORGAN CHASE BANK, as Documentation Agent.
RECITALS:
WHEREAS, the Borrower, the Banks and the Agent entered into that
certain Amended and Restated Credit Agreement dated as of September 20, 2001, as
amended by that First Amendment dated as of February 15, 2002, as amended by
that Second Amendment dated as of August 19, 2002 and as amended by that Waiver
and Third Amendment dated as of April 30, 2003 (as it has been and may be
amended, modified, supplemented, extended or restated from time to time, the
"Credit Agreement");
WHEREAS, pursuant to Section 6.13(a)(vi) of the Credit Agreement, the
Borrower is permitted to make Permitted Acquisitions in each Fiscal Year to the
extent that the aggregate Consideration for such acquisitions in such Fiscal
Year does not exceed the limitation set forth in such Section, and such
Permitted Acquisitions are subject to the other terms of Section 6.13 of the
Credit Agreement;
WHEREAS, the Borrower has requested that the Banks permit the Borrower
to acquire South University, Inc. without the Consideration paid in connection
with the acquisition of South University, Inc. decreasing the annual aggregate
Consideration limitation provided for in Section 6.13(vi) of the Credit
Agreement; and
WHEREAS, the Banks are willing to accommodate such request of the
Borrower, subject to the terms and conditions hereof.
NOW, THEREFORE, in consideration of the foregoing and intending to be
legally bound, the parties hereto agree as follows:
AGREEMENT:
1. Capitalized terms used herein and not otherwise defined shall have
the meanings given to them under the Credit Agreement.
2. Subsection 6.13(a)(vi) of the Credit Agreement is hereby amended
and restated as follows:
"(vi) in connection with the closing of any single Permitted
Acquisition, the Consideration for such Permitted Acquisition other than capital
stock of the Borrower, when aggregated with the Permitted Acquisitions
(exclusive of the acquisition of Argosy and IFAC) previously consummated in such
Fiscal Year of the Borrower, shall not cause the aggregate Consideration (other
than capital stock of the Borrower) in such Fiscal Year to exceed the following
amounts for the following years:
Fiscal Year ended June 2002 $25,000,000;
Fiscal Year ended June 30, 2003 $32,500,000; and
Fiscal Year ended June 30, 2004
and each Fiscal year thereafter $40,000,000;
provided, however, the Consideration paid in connection with the acquisition of
South University, Inc., to the extent that such Consideration does not exceed
$55,000,000, shall be excluded from the aggregate annual Consideration
limitation for the Fiscal Year ended June 30, 2004, so long as each of the other
requirements of this Section 6.13 is met with respect to the acquisition of
South University, Inc.
In connection with the closing of any Permitted Acquisition when the
Consideration given by the Borrower is the capital stock of the Borrower, the
Consideration, when aggregated with the Permitted Acquisitions previously
consummated in such Fiscal Year of the Borrower in which the Consideration was
capital stock of the Borrower, shall not cause the aggregate Consideration of
such Permitted Acquisitions to exceed $75,000,000.
The Consideration in connection with the acquisition of Argosy shall
not exceed $100,000,000."
The remainder of Section 6.13 shall remain unchanged hereby.
3. By its execution below, the Borrower and each other Loan Party
acknowledges and agrees that except as amended by this Amendment and the
documents executed and delivered in connection herewith or in connection with
the Credit Agreement, the Credit Agreement and the other Loan Documents and all
obligations thereunder remain in full force and effect with respect to the Bank
Indebtedness.
4. The Credit Agreement, the Loan Documents and all prior amendments
and modifications thereto are hereby modified solely to the extent that any of
the terms or provisions thereof are irreconcilably inconsistent with the terms
and provisions of this Amendment.
5. The Recitals set forth above are incorporated herein by reference
and made a part hereof, and the Borrower and each other Loan Party represents,
warrants and attests to the veracity thereof as well as to the veracity of the
representations set forth in the Credit Agreement
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as of the date hereof (except representations which expressly relate solely to
an earlier date or time, which representations shall be true as of the specific
dates or times referred to therein).
6. The Borrower and each other Loan Party represents that this
Amendment has been duly executed and delivered by the Borrower and such other
Loan Party, as applicable, and constitutes the legal, valid and binding
obligations of the Borrower, enforceable against the Borrower and such other
Loan Party in accordance with its terms, except to the extent that the
enforceability thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance or other similar laws affecting the
enforceability of creditors rights generally or by general equitable principles.
7. Neither this Amendment nor the consummation of the transactions
contemplated herein nor the performance by the Borrower or any Loan Party of its
obligations hereunder will (i) violate any law, rule or regulation or court
order to which the Borrower or such Loan Party is subject; (ii) conflict with or
result in a breach of the Borrower's or such Loan Party's articles of
incorporation or bylaws or any material agreement or instrument to which the
Borrower or other Loan Party is subject or by which its properties are bound or
(iii) result in the creation or imposition of any lien, security interest or
encumbrance on the property of the Borrower or any other Loan Party, whether now
owned or hereafter acquired, other than liens in favor of Agent for the benefit
of the Banks.
8. This Amendment may be executed by different parties hereto on any
number of separate counterparts, each of which, when so executed and delivered,
shall be an original, and all such counterparts shall together constitute one
and the same instrument.
9. This Amendment shall become effective when (i) it has been executed
by the Borrower and the Required Banks and acknowledged by Western State
University College of Law and delivered to the Agent and (ii) the Borrower has
paid an amendment fee of .05% multiplied by the Revolving Credit Commitment of
each Bank that executes and delivers this Amendment to Agent prior to 5:00 p.m.
on June 26, 2003 (each an "Approving Bank") to the Agent for the ratable benefit
of the Approving Banks.
[SIGNATURES BEGIN ON NEXT PAGE]
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[SIGNATURE PAGE 1 OF 9 TO FOURTH AMENDMENT
TO AMENDED AND RESTATED CREDIT AGREEMENT]
Executed as of the day and year first above written.
EDUCATION MANAGEMENT CORPORATION
By /s/ Kristen Gribble
-----------------------------------
Kristen Gribble, Treasurer
[SIGNATURE PAGE 2 OF 9 TO FOURTH AMENDMENT
TO AMENDED AND RESTATED CREDIT AGREEMENT]
NATIONAL CITY BANK OF PENNSYLVANIA,
individually and as Agent
By /s/ John L. Hayes, IV
-----------------------------------
John L. Hayes, IV, Vice President
[SIGNATURE PAGE 3 OF 9 TO FOURTH AMENDMENT
TO AMENDED AND RESTATED CREDIT AGREEMENT]
WACHOVIA BANK, NATIONAL ASSOCIATION,
individually and as Syndication Agent
By /s/ Patrick J. Kaufmann
-----------------------------------
Patrick J. Kaufmann, Vice President
[SIGNATURE PAGE 4 OF 9 TO FOURTH AMENDMENT
TO AMENDED AND RESTATED CREDIT AGREEMENT]
SUNTRUST BANK, individually and as
Syndication Agent
By /s/ Stephen Derry
-----------------------------------
Stephen Derry, Director
[SIGNATURE PAGE 5 OF 9 TO FOURTH AMENDMENT
TO AMENDED AND RESTATED CREDIT AGREEMENT]
FLEET NATIONAL BANK, individually and
as Documentation Agent
By /s/ Edward McKenney
-----------------------------------
Edward McKenney, Senior Vice President
[SIGNATURE PAGE 6 OF 9 TO FOURTH AMENDMENT
TO AMENDED AND RESTATED CREDIT AGREEMENT]
JPMORGAN CHASE BANK, individually and
as Documentation Agent
By /s/ John Malone
-----------------------------------
John Malone, Vice President
[SIGNATURE PAGE 7 OF 9 TO FOURTH AMENDMENT
TO AMENDED AND RESTATED CREDIT AGREEMENT]
BANK ONE, MICHIGAN
By /s/ Mahua Thakurta
-----------------------------------
Manhua Thakurta, Associate Director
[SIGNATURE PAGE 8 OF 9 TO FOURTH AMENDMENT
TO AMENDED AND RESTATED CREDIT AGREEMENT]
FIFTH THIRD BANK
By /s/ Christopher S. Helmeci
-----------------------------------
Christopher S. Helmeci, Vice President
[SIGNATURE PAGE 9 OF 9 TO FOURTH AMENDMENT
TO AMENDED AND RESTATED CREDIT AGREEMENT]
AMERISERV FINANCIAL BANK
By /s/ Mitchell D. Edwards
-----------------------------------
Mitchell D. Edwards, Vice President
JOINDER
The undersigned hereby joins in the foregoing Amendment for purposes of
acknowledging its continuing obligations under the Subsidiary Continuing
Agreement of Guaranty and Suretyship dated as of April 30, 2003, and the
undersigned hereby confirms that all the undersigned's obligations thereunder
remain in full force and effect with respect to obligations of the Borrower and
the undersigned to the Banks.
WESTERN STATE UNIVERSITY COLLEGE
OF LAW
By /s/ Kristen Gribble
-----------------------------------
Kristen Gribble, Treasurer