Exhibit 10.8
FIFTH AMENDMENT TO AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT
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THIS FIFTH AMENDMENT TO AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
(this "Amendment") is made effective as of the __ day of May, 2003, by and
among NOBEL LEARNING COMMUNITIES, INC. ("Nobel"), NEDI, INC. ("NEDI"), MERRYHILL
SCHOOLS NEVADA, INC. ("Merryhill Nevada"), PALADIN ACADEMY, L.L.C., formerly
known as Nobel Learning Solutions, L.L.C. ("Paladin"), NOBEL EDUCATION DYNAMICS
FLORIDA, INC. ( "Nobel Florida"), THE ACTIVITIES CLUB, INC. ("TAC"), HOUSTON
LEARNING ACADEMY, INC. ("Houston"), NOBEL SCHOOL MANAGEMENT SERVICES, INC.
("Nobel Management"), NOBEL LEARNING TECHNOLOGIES, INC. ("Nobel Technologies")
(jointly and severally, "Borrowers"), FLEET NATIONAL BANK, as successor by
merger to Summit Bank, as Agent ("Agent") and Lenders named on the signature
pages hereto (collectively, "Lenders").
BACKGROUND
A. Nobel, NEDI, Merryhill Schools, Inc., Merryhill Nevada, Paladin, Nobel
Florida, TAC and Agent are parties to that certain Amended and Restated Loan and
Security Agreement dated March 9, 1999, as amended by (i) that certain First
Amendment to Amended and Restated Loan and Security Agreement dated December 17,
1999, (ii) that certain Second Amendment to Amended and Restated Loan and
Security Agreement dated May 24, 2000, (iii) that certain Third Amendment to
Amended and Restated Loan and Security Agreement dated May 24, 2001, and (iv)
that certain Fourth Amendment to Amended and Restated Loan and Security
Agreement dated as of July 5, 2001 (such Amended and Restated Loan and Security
Agreement, as amended and as the same may be further amended, supplemented or
restated from time to time, being the "Loan Agreement").
B. Borrowers, Agent and Lenders desire to further amend the Loan
Agreement in accordance with the terms and conditions hereof.
C. Capitalized terms used herein and not otherwise defined shall have the
meanings provided for such terms in the Loan Agreement.
NOW, THEREFORE, intending to be legally bound hereby, the parties hereto
agree as follows:
1. Waiver of Existing Covenant Defaults.
The Events of Default resulting from Borrowers' failure to comply with the
financial covenants (a) set forth in Article 10 of the Loan Agreement for the
period ending December 31, 2002, and (b) set forth in Article 10 of the Loan
Agreement for the period ending March 31, 2003, are hereby waived. Nothing
contained herein constitutes a waiver of, or an agreement or commitment by Agent
or any Lender to waive or release Borrowers from compliance with any other
terms, conditions or covenants of the Loan Agreement or any of the other Loan
Documents
or of the financial covenants for any other period after the date hereof or an
agreement or commitment by Agent or any Lender to grant any future waivers or
releases to Borrowers.
2. Elimination of LIBOR Rate Option.
Notwithstanding anything to the contrary contained in the Loan
Agreement or any of the Loan Documents, as of the date hereof and at all times
hereafter, Borrowers will not request and Agent and Lenders will not be
obligated to make any advances to Borrowers under the Loans accruing interest at
the LIBOR Rate. The rate period for Loans currently accruing interest at the
LIBOR Rate will be permitted to expire in the ordinary course, provided that any
pre-payments or acceleration of such Loans will be subject to contractual
breakage or any other charges or fees provided under the Loan Agreement.
3. $5,000,000.00 Capital Infusion.
Notwithstanding anything to the contrary in the Loan Agreement,
Borrowers shall obtain an infusion of capital of not less than $5,000,000.00
(the "Capital Infusion") on terms and conditions reasonably acceptable to the
Agent. The proceeds of this Capital Infusion shall be applied first, to reduce
the amounts outstanding under the Consolidated Working Capital Facility, and
second, to the extent of any remaining proceeds, to fund a cash collateral
account (the "Cash Collateral Account"). The Cash Collateral Account shall be
held by Agent in a segregated, collateralized, non-interest bearing account over
which the Borrowers shall have no dominion or control; provided that the
proceeds of the Cash Collateral Account shall be available to Borrowers on a
daily basis to fund any amounts which otherwise would be advanced under the
Consolidated Working Capital Facility until the Cash Collateral Account is
exhausted. Borrowers hereby acknowledge and agree that the Cash Collateral
Account is pledged to Agent for the benefit of Lenders, that Agent holds a
valid, enforceable and perfected security interest in and to the Cash Collateral
Account and that the proceeds of the Cash Collateral Account may be used to
repay any Lender Obligations following an Event of Default.
4. Amended Definitions.
a). The following definitions contained in Article 1 of the Loan Agreement
are hereby amended to read, in their entirety, as follows:
"1.18 "EBITDA" means, for any period, combined aggregate earnings for
Borrowers for such period (excluding extraordinary earnings), plus the
aggregate amount deducted for such period in determining such earnings
in respect of (a) Interest Expense, (b) income taxes, (c) depreciation
expense, (d) amortization expense, all determined in accordance with
GAAP, and (e) non-recurring transaction fees, write-down of goodwill,
or other non-recurring expenses incurred in the disposition of schools
included in Borrowers' managed assets.
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1.30 "Floating Rate Margin" means one of the following margins
determined based on the ratio of Borrowers' Total Funded Indebtedness
to EBITDA from time to time:
Ratio of Total Funded
Indebtedness to EBITDA Floating Rate Margin
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**** 3.50 200 basis points
* 3.50 but 3.00 150 basis points
* 3.00 but 2.50 100 basis points
* 2.50 but 2.00 75 basis points
* 2.00 but 1.50 50 basis points
* 1.50 25 basis points
* denotes less than
**** denotes greater than or equal to
1.35 "Interest Coverage Ratio " means for any period, the rate of (a)
EBIT to (b) Interest Expense.
1.36 "Interest Expense" means for any period, the amount of interest
paid on Indebtedness by Borrowers for such period, determined in
accordance with GAAP, but excluding (i) any previously capitalized
interest or fees related solely to prior amendments to the Loan
Agreement which must currently be expensed in accordance with GAAP;
and (ii) that portion of interest expense related solely to the
amortization of the Waiver Fee associated with the Fifth Amendment to
Amended and Restated Loan and Security Agreement dated as of May 28,
2003.
1.53 "Permitted Acquisition" means an acquisition by any Borrower (i)
which has been previously approved and consented to in writing by
Agent in its sole and absolute discretion and (ii) funded solely from
sources other than Borrowers or under the Loans."
5. Additional Definitions. The following definitions shall be added to
Article 1 of the Loan Agreement in the proper alphabetical order:
"EBIT" means for any period, combined aggregate earnings of Borrowers for
such period (excluding extraordinary earnings) plus the aggregate amount
deducted for such period in determining such earnings in respect of (a) Interest
Expense, (b) income taxes, and (c) non-recurring transaction fees, write-down of
goodwill, or other non-recurring expenses incurred in the disposition of schools
included in Borrowers' managed assets.
"EBITDAR" means, for any period, EBITDA plus aggregate rent expenses of
Borrowers for such period."
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6. Acquisition Credit Facility. Section 3.3(c) of the Loan Agreement is
amended to read, in its entirety, as follows:
"(c) The Acquisition Credit Facility Term Loan will mature on December 31,
2003 and all sums outstanding under the Acquisition Credit Facility must be
repaid in full on or before such date."
7. Letters of Credit. Section 3.8(a) of the Loan Agreement is amended to
read, in its entirety, as follows:
"(a) Issuing Bank may issue for the account of Borrowers under the
Consolidated Working Capital Credit Facility, commercial, documentary,
automatically renewable or standby letters of credit in form and content
satisfactory to Issuing Bank, at its sole discretion, with a term not to
exceed the earlier to occur of (i) twenty-four (24) months, or (ii) the
expiration date of the Consolidated Working Capital Contract Period.
Notwithstanding the foregoing, at no time shall the (x) aggregate face
amount of all outstanding letters of credit issued under the Consolidated
Working Capital Credit Facility exceed Three Million Dollars
($3,000,000.00); and (y) outstanding principal balance of the Consolidated
Working Capital Credit Facility, plus the aggregate face amount of all
outstanding letters of credit issued under Consolidated Working Capital
Credit Facility exceed the amount of the loans and extensions of credit
then available to Borrowers under the Consolidated Working Capital Credit
Facility pursuant to Section 3.1 above."
8. Payments on the Acquisition Credit Facility. Section 6.3 of the Loan
Agreement is amended to read, in its entirety, as follows:
"6.3 Principal and Interest Payments on the Acquisition Credit
Facility.
(a) During the Acquisition Credit Facility Advance Period, Borrowers
will pay interest on that portion of the principal advanced under the
Acquisition Credit Facility which has not previously been converted to
an Acquisition Credit Facility Term Loan monthly, on the first day of
each calendar month, commencing on the first day of the first calendar
month following the initial advance thereunder and on the last day of
each Rate Period, as applicable.
(b) Borrowers shall repay the outstanding principal balance of any
Acquisition Credit Facility Term Loan selected by Borrowers on or
before December 31, 2003, in accordance with Section 3.3(c) above, in
quarterly installments, each in the amount of $829,721.50, commencing
July 1, 2003 and continuing on the first Business Day of each calendar
quarter until maturity, plus accrued and unpaid interest on such
Acquisition Credit Facility Term Loan to the date of such payment at
the applicable rate set forth in Section 5.3(b) above.
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(c) On December 31, 2003, Borrowers shall pay in full the outstanding
principal balance of the Acquisition Credit Facility (including,
without limitation, any Acquisition Credit Facility Term Loan),
together with all accrued and unpaid interest thereon and all other
sums due in connection therewith."
9. Letter of Credit Fees. Section 6.8 of the Loan Agreement is amended to
read, in its entirety, as follows:
"6.8 Letter of Credit Fees. For each issuance or renewal of a letter
of credit hereunder, Borrowers shall pay (a) with respect to letters
of credit issued prior to May 1, 2003, to Agent for the pro rata
benefit of Lenders, a per annum fee, payable quarterly in advance on
the first Business Day of each calendar quarter, the fees currently
accruing with respect to such previously issued letters of credit; (b)
with respect to letters of credit issued or renewed on or after May 1,
2003, to Agent, for the pro rata benefit of Lenders, a per annum fee,
payable quarterly in arrears on the first Business Day of each
calendar quarter, equal to three percent (3%) of the face amount of
any such newly issued or renewed letter of credit; (c) Issuing Bank, a
fronting fee in an amount equal to (i) .25% per annum of the aggregate
face amount of all outstanding letters of credit issued prior to May
1, 2003, and (ii) for letters of credit issued or renewed on or after
May 1, 2003, a fronting fee in an amount equal to .50% per annum, of
the aggregate face amount of such letter of credit. All such fronting
fees to be payable quarterly, in advance. In addition, Borrowers shall
pay such other fees and charges in connection with the negotiation or
cancellation of each letter of credit as may be customarily charged by
Issuing Bank. All such fees shall be computed on the basis of a year
of three hundred sixty (360) days for the number of days actually
elapsed."
10. Usage and Waiver Fees. Section 6.9 of the Loan Agreement is amended in
its entirety as follows:
"6.9 Usage and Waiver Fees.
(a) Usage Fee. Borrowers shall unconditionally pay to Agent for the
pro rata benefit of Lenders a fee equal to the Applicable Percentage
of the average daily unused portion of the Consolidated Working
Capital Credit Facility and the Acquisition Credit Facility (which
shall be calculated based on the maximum amount then available to be
borrowed by Borrowers thereunder, taking into account any reductions
of the Acquisition Credit Facility required or permitted under this
Agreement, minus the average daily outstanding principal balance of
cash advances under the Consolidated Working Capital Credit Facility
and the Acquisition Credit Facility for such period, minus the average
outstanding undrawn face amount of all letters of credit issued and
outstanding under the
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Consolidated Working Capital Credit Facility during such period),
which fee shall be computed on a quarterly basis in arrears and shall
be due and payable on the first day of each calendar quarter
commencing on July 1, 2003. Such fee shall be computed on the basis of
a year of 360 days for the number of days actually elapsed.
(b) Waiver Fee. Borrowers shall unconditionally pay to Agent for the
pro rata benefit of Lenders a waiver fee (the "Waiver Fee") equal to
one percent (1%) of the maximum amount of all Credit Facility
Commitments outstanding on May 28, 2003. Such Waiver Fee is fully
earned and non-refundable and is due and payable as follows: (a)
$135,960.00 on the date hereof, and (b) $203,940.00 on the earlier to
occur of (i) the acceleration of Lender Indebtedness following the
occurrence of an Event of Default, or (ii) January 1, 2004, provided
that any amount remains due and owing under this Agreement or the Loan
Documents at such time."
11. Ownership Interests; Dividends. Section 9.17 of the Loan Agreement is
amended in its entirety, as follows:
"9.17 Ownership Interests; Dividends. No Borrower will redeem,
repurchase or otherwise make any payment or distribution to acquire
any of its or any other Borrower's ownership interests, except for a
Permitted Purchase. No Borrower will pay cash dividends or make other
cash distributions on account of its ownership interests, except that
if no Event of Default or event which with the giving of notice or the
passage of time or both would result in an Event of Default shall have
occurred and such payment would not result in an Event of Default,
Nobel Learning Communities, Inc. may pay cash dividends on account of
its Series A preferred stock issued and outstanding prior to the date
hereof in an aggregate amount not to exceed Twenty Thousand Four
Hundred Seventy-Four Dollars ($20,474.00) per quarter or Eighty-One
Thousand Eight Hundred Ninety-Six Dollars ($81,896.00) annually, in
the aggregate."
12. Financial Covenants. Article 10 of the Loan Agreement is amended to
read in its entirety, as follows:
"10. Financial Covenants. Except with the prior written consent of the
Required Lenders, Borrowers will comply with the following:
10.1 Leverage Ratio. Borrowers shall maintain a Leverage Ratio of not
greater than: (a) to the extent that additional capital is raised by
Borrowers as equity: (i) 3.50 to 1 at June 30, 2003; (ii) 3.00 to 1 at
September 30, 2003; and (iii) 2.75 to 1 at December 31, 2003 and (b)
to the extent that additional capital is raised by Borrowers as debt:
(i) 3.65 to 1 at June 30, 2003; (ii) 3.25 to 1 at September 30, 2003;
and (iii) 3.00 to 1 at December 31, 2003.
10.2 Interest Coverage Ratio. Borrowers shall maintain an Interest
Coverage Ratio as of the end of each fiscal quarter, determined on a
rolling four quarter
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basis, of not less than: (i) 1.25 to 1 at June 30, 2003; (ii) 1.50 to
1 at September 30, 2003; and (iii) 1.50 to 1 on December 31, 2003.
10.3 Fixed Charge Coverage Ratio. Borrowers shall maintain a Fixed
Charge Coverage Ratio as of the end of each fiscal quarter, determined
on a rolling four quarter basis, of not more than 1.05 to 1.
10.4 Capital Expenditures. Borrowers shall not cause, suffer or permit
their aggregate Capital Expenditures to exceed, on a quarterly
non-cumulative basis: (a) $2,000,000.00 for the quarter ended
September 30, 2003; and (b) $1,500,000.00 for the quarter ended
December 31, 2003.
10.5 Adjusted Leverage Ratio. Borrowers shall maintain an Adjusted
Leverage Ratio as of the end of each fiscal quarter, determined on a
rolling four quarter basis, of not greater than: (a) to the extent
that additional capital is raised by Borrowers as equity, 4.75 to 1 at
June 30, 2003 and thereafter; and (b) to the extent that any
additional capital is raised by Borrowers as debt (i) 4.90 to 1 at
June 30, 2003; and (ii) 4.75 to 1 at September 30, 2003 and
thereafter.
10.6 [Intentionally omitted].
10.7 Lender Indebtedness to EBITDA Ratio. Borrowers shall maintain a
ratio of Lender Indebtedness to EBITDA as of the end of each fiscal
quarter, determined on a rolling four quarter basis, not to exceed:
(a) 2.30 to 1 at June 30, 2003; (b) 2.10 to 1 at September 30, 2003;
and (c) 1.75 to 1 at December 31, 2003.
13. Events of Default.
Section 15.1 of the Loan Agreement is amended by adding the following to
the end of such section:
"(v) Borrowers shall not have received, on or before June 30, 2003, a
capital infusion on terms and conditions acceptable to Agent and
Lenders in their sole discretion of not less than $5,000,000.00, all
proceeds of which shall be applied to reduce the outstanding principal
balance of the Consolidated Working Capital Facility; or
(w) Borrowers shall not have received, on or before August 31, 2003,
a capital infusion on terms and conditions acceptable to Agent and
Lenders in their sole discretion of not less than $4,000,000.00, all
proceeds of which shall be applied to reduce the outstanding principal
balance of the Acquisition Credit Facility Term Loan as a permanent
reduction."
14. Participations and Assignments. Section 16.21 of the Loan Agreement is
amended in its entirety as follows:
"16.21 Participations and Assignments.
(a) Each Lender may at any time grant participations of its Pro Rata
Share in and to its interest under this Agreement (collectively,
"Participations") to any
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other lending office of such Lender or to any other bank, lending
institution or other entity which the granting Lender reasonably
determines has the requisite sophistication to evaluate the merits and
risks of investments in Participations("Participants "); provided,
however, that (i) all amounts payable by Borrowers to each Lender
hereunder and voting rights of each Lender hereunder shall be
determined as if such Lender had not granted such Participation; (ii)
any agreement pursuant to which any Lender may grant a Participation
(A) shall provide that such Lender is not delegating and therefore
shall retain the sole right and responsibility to exercise all of its
rights and privileges under this Agreement, including, without
limitation, the right to approve any amendment, modification or waiver
of any provisions of this Agreement and (B) shall not release or
discharge such Lender from its duties and obligations, which shall
remain absolute, hereunder, including its obligation to make advances
hereunder; and (iii) upon entering into any such Participation, the
Lender granting such participation shall give thirty (30) days' prior
written notice thereof to Agent.
(b) Each Lender may at any time assign all or any portion of its Pro
Rata Share (together with its rights and obligations with respect
thereto) and its right, title and interest therein and in and to this
Agreement and the other Loan Documents to a Lender or any Affiliate of
a Lender, or to any other bank or financial institution, in each case
with thirty (30) days' prior written notice to Agent and Borrowers and
subject to the prior written consent of Agent which shall not be
unreasonably withheld; provided, however, that (i) any assignment to
another Lender (which is then a party to this Agreement) or to any
other bank or financial institution shall be in the minimum amount of
Two Million Dollars ($2,000,000.00), (ii) the parties to such
assignment shall execute an Assignment and Acceptance in the form of
Exhibit "H" hereto and such other documents reasonably requested by
Agent, and Borrowers shall execute such replacement Notes, amendments
and other items as may be requested by Agent, and (iii) the parties to
the assignment shall pay Agent a processing fee of Three Thousand Five
Hundred Dollars ($3,500.00) at the time of providing such assignment
to Agent.
(c) Notwithstanding anything to the contrary contained herein, each
Lender may at any time collaterally assign all or any portion of its
rights under this Agreement and its Notes to any Federal Reserve Bank
to secure overnight deposits, provided that no such assignment shall
release the assigning Lender from its obligations hereunder.
(d) In connection with any potential assignment or Participation by
any Lender of its Pro Rata Share of interests in this Agreement, such
Lender shall obtain Borrowers' consent, which shall not be
unreasonably withheld or delayed, prior to delivery to any potential
assignee or Participant of any information regarding Borrowers which
is not otherwise available in the public domain."
15. Additional Documents. Borrowers covenant and agree to execute and
deliver or cause to be executed and delivered to Agent any and all documents as
Agent shall request in
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connection with the execution and delivery of this Amendment or any other
documents in connection herewith.
16. Other References. All references in the Loan Agreement and the other
Loan Documents to the term "Loan Documents" shall mean the Loan Documents as
defined therein and this Amendment, including the Consolidated Working Capital
Credit Facility Notes, and any and all other documents executed and delivered by
Borrowers pursuant to and in connection herewith. All references in the Loan
Agreement and all the Loan Documents to the term "Lender Indebtedness" shall
include, but shall not be limited to, all obligations and liabilities of
Borrowers to Lenders under the Consolidated Working Capital Credit Facility
Notes, the other Notes and the Loan Agreement, as amended hereby. All references
in the Loan Agreement and all the Loan Documents to the term "Notes" shall
include, but shall not be limited to, the Consolidated Working Capital Credit
Facility Notes. All references in the Loan Agreement and all the Loan Documents
to the term "Working Capital Credit Facility A" and the term "Working Capital
Credit Facility B" and the term "Working Capital Credit Facilities" shall be
deemed references to the Consolidated Working Capital Credit Facility.
17. Further Agreements and Representations. Borrowers do hereby:
(a) ratify, confirm and acknowledge that the Loan Agreement, as
amended, and the other Loan Documents continue to be and are valid, binding and
in full force and effect;
(b) covenant and agree to perform all obligations of Borrowers
contained herein and under the Loan Agreement, as amended, and the other Loan
Documents;
(c) acknowledge and agree that the principal amount of $2,821,000.00
is presently outstanding under the Consolidated Working Capital Facility, the
principal amount of $13,275,640.00 is presently outstanding under the
Acquisition Credit Facility Term Loan, and the principal amount of
$10,714,286.00 is presently outstanding under the Term Loan, and that Borrowers
have no defense, set-off, counterclaim or challenge against the payment of any
sums owing under Loan Documents, the enforcement of any of the terms of the Loan
Agreement, as amended, or the other Loan Documents;
(d) represent and warrant that (except to the extent of events of
default waived pursuant to Section 1 of this Amendment), no Event of Default or
event which with the giving of notice or passage of time or both would
constitute such an Event of Default exists and all information described in the
foregoing Background is true, accurate and complete;
(e) acknowledge and agree that nothing contained herein and no action
taken pursuant to the terms hereof are intended to constitute a novation of the
Loan Agreement or any of the other Loan Documents, and (except to the extent of
events of default waived pursuant to Section 1 of this Amendment), do not
constitute a release, termination or waiver of any of the rights or remedies
granted to Agent therein, which rights and remedies are hereby ratified,
confirmed, extended and continued as security for the obligations of Borrowers
to Agent and Lenders under the Loan Agreement and the other Loan Documents,
including, without limitation, this Amendment; and
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(f) acknowledge and agree that any Borrower's failure to comply with
or perform any of its covenants, agreements or obligations contained in this
Amendment shall constitute an Event of Default under the Loan Agreement and each
of the Loan Documents.
18. Costs and Expenses. Upon execution of this Amendment, Borrowers shall
pay to Agent all out-of-pocket costs and expenses incurred by Agent in
connection with the review, preparation and negotiation of this Amendment and
all documents in connection therewith, including, without limitation, all of
Agent's reasonable attorneys' fees and out-of-pocket expenses.
19. Release. Each Borrower hereby fully, finally and forever acquits,
quitclaims, releases and discharges each Lender and its respective officers,
directors, employees, agents, successors and assigns, in their capacities as
such, of and from any and all obligations, claims, liabilities, damages,
demands, debts, liens, deficiencies or cause or causes of action to, of or for
the benefit (whether directly or indirectly) of any Borrower, at law or in
equity, known or unknown, contingent or otherwise, whether asserted or
unasserted, whether now known or hereafter discovered, whether statutory, in
contract or in tort, as well as any other kind or character of action now held,
owned or possessed (whether directly or indirectly) by any Borrower on account
of, arising out of, related to or concerning, whether directly or indirectly,
proximately or remotely (i) the negotiation, review, preparation or
documentation of the Loan Agreement, this Amendment and the Loan Documents or
any other documents or agreements executed in connection therewith, (ii) the
administration of the Loan Documents, (iii) the enforcement, protection or
preservation of Lender's rights under the Loan Documents, or any other documents
or agreements executed in connection therewith, and/or (iv) any action or
inaction by Lender in connection with any such documents, instruments and
agreements.
20. Inconsistencies. To the extent of any inconsistency between the terms,
conditions and provisions of this Amendment and the terms, conditions and
provisions of the Loan Agreement or the other Loan Documents, the terms,
conditions and provisions of this Amendment shall prevail. All terms, conditions
and provisions of the Loan Agreement and the other Loan Documents not
inconsistent herewith shall remain in full force and effect and are hereby
ratified and confirmed by Borrowers.
21. Construction. All references to the Loan Agreement therein or in any
other Loan Documents shall be deemed to be a reference to the Loan Agreement as
amended hereby.
22. No Waiver. Except for the waiver expressly set forth above, nothing
contained herein and no actions taken pursuant to the terms hereof are intended
to nor shall they constitute a waiver by Agent of any rights or remedies
available to Agent at law or in equity or as provided in the Loan Agreement or
the other Loan Documents.
23. Binding Effect. This Amendment shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns.
24. Governing Law. This Amendment shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania.
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25. Headings. The headings of the sections of this Amendment are inserted
for convenience only and shall not be deemed to constitute a part of this
Amendment.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment
effective as of the date first above written.
BORROWERS:
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NOBEL LEARNING COMMUNITIES, INC.
By:
-----------------------------------
William E. Bailey,
Executive Vice President
NEDI, INC.
By:
-----------------------------------
Name/Title:
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MERRYHILL SCHOOLS NEVADA, INC.
By:
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John R. Frock, Treasurer
HOUSTON LEARNING ACADEMY, INC.
By:
-----------------------------------
John R. Frock, Vice President
PALADIN ACADEMY, L.L.C.
By: NOBEL LEARNING COMMUNITIES,
INC., its sole member
By:
-----------------------------------
Name/Title: William E. Bailey,
Executive Vice President
(SIGNATURES CONTINUED ON FOLLOWING PAGE)
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NOBEL SCHOOL MANAGEMENT SERVICES, INC.
By:
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William E. Bailey, Treasurer
NOBEL LEARNING TECHNOLOGIES, INC.
By:
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William E. Bailey, Treasurer
NOBEL EDUCATION DYNAMICS FLORIDA, INC.
By:
-----------------------------------
William E. Bailey, Vice President
THE ACTIVITIES CLUB, INC.
By:
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John R. Frock, President
AGENT:
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FLEET NATIONAL BANK, as successor by
merger to Summit Bank, as Agent
By:
-----------------------------------
Name/Title:
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LENDERS:
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FLEET NATIONAL BANK, as successor by
merger to Summit Bank
By:
-----------------------------------
Name/Title:
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COMMERCE BANK, N.A.
By:
-----------------------------------
Name/Title:
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