Ex-10.10
THIRD AMENDMENT
TO THE
RESTRUCTURING, SECURITY AND GUARANTY AGREEMENT
THIS AGREEMENT, made and entered into as of the 30th day of
July, 1996 (the "Third 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 ASSOCIATES, INC., a
California corporation ("Southern California"); CONCORDE
CAREERS - FLORIDA, INC., a Florida corporation ("Florida");
COLLEGES OF DENTAL AND MEDICAL ASSISTANTS, INC., an Oregon
corporation ("Dental"); and COMPUTER CAREER INSTITUTE, INC., an
Oregon corporation ("Computer") (Minnesota, Texas, United,
Southern California, Florida, Dental, and Computer being
hereinafter referred to collectively as "Guarantors" and each
individually as a "Guarantor") amends that certain
Restructuring, Security and Guaranty Agreement between the
parties dated as of October 30, 1992, as previously amended by
written agreements dated as of December 30, 1993 and November 15,
1994 (collectively, the "Agreement").
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) Pursuant to the terms of the November 15, 1994,
amendment (the "Second Amendment"), Concorde exchanged
300,000 shares of its Class A Redeemable Preferred Stock,
$.10 par value (the "Preferred Stock") for $3,000,000 of the
principal amount of the Debenture; reduced the outstanding
principal amount of the Debenture to $2,442,307, and amended
the Debenture to reflect such.
(iii) The ▇▇▇▇ ▇▇▇▇▇ liabilities have been paid in
full by Concorde and are no longer outstanding.
(iv) Concorde desires to sell substantially all of the
assets (the "San ▇▇▇▇ Assets") of the career college it
operates at ▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, known
as Concorde Career Institute (the "San ▇▇▇▇ Institute")
pursuant to a certain Asset Purchase Agreement, dated
July 11, 1996, between Concorde and Corinthian Schools, Inc.
(the "San ▇▇▇▇ Agreement"), a true and correct copy of which
has been delivered to CenCor by Concorde.
(v) Concorde desires to cause its wholly-owned
subsidiary, Person/▇▇▇▇▇▇▇▇ Associates, Inc., a New York
corporation ("P/W"), to sell substantially all of its assets
(the "P/W Assets") pursuant to a certain Asset Purchase
Agreement, dated July 10, 1996, among P/W, Concorde and DGZ
Associates, Inc. (the "P/W Agreement"), a true and correct
copy of which has been delivered to CenCor by Concorde.
(vi) CenCor holds a security interest in substantially
all of the assets of Concorde and the Guarantors, securing
the payment of the principal amount of the Debenture and the
Agreement prohibits the sale of assets by Concorde,
including the San ▇▇▇▇ Assets or P/W, including the P/W
Assets, without the consent of CenCor.
(vii) CenCor has agreed to the sale of the San ▇▇▇▇
Assets pursuant to the terms of the San ▇▇▇▇ Agreement (the
"San ▇▇▇▇ Sale") and the sale of the P/W Assets pursuant to
the terms of the P/W Agreement (the "P/W Sale") and to the
release of its security interest in such assets, subject to
Concorde's agreement to use a certain portion of the
proceeds received by it and/or P/W pursuant to the San ▇▇▇▇
Sale and the P/W Sale to redeem outstanding shares of
Preferred Stock held by CenCor, and thereafter to retire the
Debenture, all as set forth herein.
(viii) Concorde and CenCor wish to amend the
Agreement to provide for such sale of assets and such
redemption and retirement.
(ix) The Guarantors, each a wholly-owned subsidiary of
Concorde, wish to reduce the amount of their guaranteed
obligations through such retirement and thus consent to the
amendment of the Agreement to provide for such.
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) "Allocated Proceeds" means that portion of
proceeds from the San ▇▇▇▇ Sale or the P/W Sale identified
on Exhibit A, attached hereto and incorporated herein,
actually received by Concorde and/or P/W.
(b) "Preferred Stock" means the Class A Redeemable
Preferred Stock, $.10 par value, of Concorde.
(c) "Redemption Price" means the redemption of shares
of Preferred Stock by Concorde pursuant to the provisions of
Section 2.2, herein.
(d) "Redemption Price" means the per share redemption
price set forth in the Certificate of Designations filed
with the Secretary of State of Delaware with respect to the
Preferred Stock, of $10.00 per share, plus all accrued but
unpaid dividends thereon, calculated on the basis set forth
in Section (1)(iii) of such Certificate of Designations.
(e) "Retirement" means the full or partial retirement
of the Debenture by Concorde pursuant to the provisions of
Section 2.3 herein.
(f) "Third Amendment" means this Third Amendment to
the Restructuring, Security and Guaranty Agreement, dated
October 30, 1992, as previously amended by written
agreements dated as of December 30, 1993 and November 15,
1994.
1.2 Other Terms. All capitalized terms used herein, not
defined in Section 1. 1 or elsewhere in this Third Amendment,
shall have the meanings and be as defined in the Second
Amendment, and if not therein defined, as defined in the First
Amendment, and if not therein defined, as defined in the original
provisions of the Agreement.
ARTICLE II
The Exchange
2.1 Application of Proceeds. Concorde hereby agrees that,
upon the closing of the San ▇▇▇▇ Sale and/or the P/W Sale and the
receipt by Concorde or P/W of proceeds therefrom, it shall apply,
or cause to be applied, the Allocated Proceeds, as follows:
(a) first, to the redemption of shares of Preferred
Stock (the "Redemption"), and, upon the Redemption of all of
the Preferred Stock,
(b) second, to the retirement of the Debenture (the
"Retirement").
2.2 Redemption of the Preferred Stock. Promptly upon the
receipt of Allocated Proceeds, Concorde shall redeem that number
of whole shares of Preferred Stock held by CenCor (or its
assigns) equal to the amount of such Allocated Proceeds divided
by the Redemption Price. Any Allocated Proceeds remaining that
would have been applied but for the requirement that only whole
shares be redeemed, shall be retained by Concorde and aggregated
with subsequently received Allocated Proceeds for future
Redemptions/Retirements.
2.3 Retirement of Debenture. Following the Redemption of
all outstanding shares of Preferred Stock, promptly upon receipt
of Allocated Proceeds, Concorde shall pay such Allocated Proceeds
to CenCor with respect to the Debenture, pursuant to the terms of
the Agreement, first to be applied to the payment of any then
accrued but unpaid interest on the Debenture and next to the
principal amount of the Debenture.
2.4 Date of Redemption/Retirement. Except as otherwise
provided for in Section 2.2, above, the date of Redemption or
Retirement with respect to any Allocated Proceeds shall be:
(a) the closing date of the respective asset sales,
with respect to Allocated Proceeds received by Concorde
and/or P/W on such closing dates, and
(b) on or before three (3) business days from the date
of the receipt of good funds with respect to Allocated
Proceeds received by Concorde and/or P/W after such closing
dates.
It is agreed that if Allocated Proceeds are not received by the
Scheduled Date designated on Exhibit A, Concorde and P/W shall
promptly notify CenCor and take all reasonably prudent steps
necessary to collect such funds. Notwithstanding anything herein
to the contrary, Concorde shall have no obligation to effect a
Redemption or Retirement unless and until its receipt of
Allocated Proceeds.
2.5 Procedures. In connection with:
(a) any Redemption or Retirement, Concorde shall
provide CenCor with an accounting of the calculation of the
then current Redemption Price; and
(b) a Redemption, (i) Concorde shall provide CenCor
with a calculation of the application the of Allocated
Proceeds and any carryover thereof; (ii) CenCor shall submit
its stock certificate representing the Preferred Stock,
fully endorsed for transfer, and (iii) Concorde shall
reissue a new stock certificate to CenCor representing the
remaining shares of Preferred Stock not being so redeemed,
if any.
2.6 Payment in Full. Upon the Redemption of all
outstanding shares of Preferred Stock owned by CenCor (or its
assigns) and the Retirement of the entire Debenture (including
accrued interest thereon), Concorde shall be entitled to retain
any remaining Allocated, Proceeds and CenCor has had no further
rights or interest in such Allocated Proceeds.
ARTICLE III
Consent and Release of Collateral
3.1 Consent to Sale. CenCor hereby consents to the San
▇▇▇▇ Sale pursuant to the San ▇▇▇▇ Agreement and to the P/W Sale
pursuant to the terms of the P/W Agreement, and waives any
restrictions set forth in Section 7.1 or elsewhere in the
Agreement with respect thereto.
3.2 Release of Collateral. CenCor hereby agrees:
(a) to release its security interest in the San ▇▇▇▇
Assets, effective upon the closing of the San ▇▇▇▇ Sale, and
agrees to promptly execute, obtain and furnish to Concorde
any and all termination statements, releases or other UCC
documentation or other documents or materials as Concorde
may reasonably request in order to so release such
Collateral;
(b) that upon such releases, the San ▇▇▇▇ Assets shall
no longer constitute Collateral pursuant to Article IV of
the Agreement; and
(c) that in the event Concorde determines to dissolve
and liquidate P/W after the closing of the P/W Sale, CenCor
shall (i) release its security interest in the stock of P/W
owned by Concorde, (ii) return the Pledged Stock of P/W
which CenCor holds pursuant to Section 4.7 of the Agreement
with respect thereto; and (iii) consent to such dissolution
and liquidation.
3.3 Undertaking. Concorde agrees to execute any security
agreements, UCC-1 financing--statements and other documents
reasonably requested by CenCor to grant a security interest in
all of the assets of Concorde and the Guarantors which are not
being sold pursuant to the San ▇▇▇▇ Agreement or the P/W
Agreement. Concorde will not agree to any amendment, delay or
waiver of its rights or P/W's right to receive any of the
Allocated Proceeds on the dates set forth on Exhibit A without
CenCor's written consent.
ARTICLE IV
Miscellaneous
4.1 Obligations of P/W. In consideration of CenCor's
agreement to the terms of this Third Amendment and its consent to
the P/W Sale, P/W has agreed to guarantee the obligation of
Concorde to apply the Allocated Proceeds from the P/W Sale to the
Redemption arid/or Retirement as provided for herein and has
executed Exhibit 4.1 hereto in evidence of such guarantee.
4.2 ▇▇▇▇ ▇▇▇▇▇ Liabilities. ▇▇▇▇ ▇▇▇▇▇ has executed the
confirmation, attached hereto as Exhibit 4.2, acknowledging the
payment in full of the ▇▇▇▇ ▇▇▇▇▇ Liabilities.
4.3 Attorneys' Fees. Notwithstanding anything in the
Agreement or herein to the contrary, Concorde shall pay to CenCor
in cash one-half of CenCor's attorneys' fees and expenses
incurred in connection with the negotiation of this Third
Amendment and the consummation of the transactions contemplated
thereby, within ten (10) business days after receiving an invoice
from CenCor with supporting documentation, which the parties
agree shall not exceed $5,000.00 in the aggregate.
4.4 Ratification. All provisions of the Agreement not
specifically amended in this Third Amendment are hereby ratified
and reaffirmed.
4.5 Governing Law. Except as otherwise provided by express
reference to the Uniform Commercial Code, this Third Amendment
shall be construed in accordance with and governed by the laws,
statutes and decisions of the State of Missouri, to the non-
exclusive jurisdiction of whose courts, state and federal,
Concorde and Guarantors irrevocably agree to submit.
4.6 Incorporation. The recitals and exhibits hereto are
hereby incorporated herein by reference.
4.7 Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original
and all of which together shall constitute one and the same
instrument.
4.8 Further Assurances. The parties hereto agree to
execute all additional documents reasonably necessary to
effectuate the transactions contemplated herein, including
without limitation those documents necessary to release the Liens
with respect to the San ▇▇▇▇ Assets and the P/W Assets on a
timely basis.
4.9 Benefit and Burden. This Agreement shall be binding
upon and inure to the benefit of the successors of CenCor,
Concorde and P/W. CenCor may assign its rights hereunder,
including without limitation to a liquidating trust.
IN WITNESS WHEREOF, the parties hereto have caused this
Third 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.
CENCOR, INC.
ATTEST:
By: ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇ Vice President
Secretary
ACKNOWLEDGMENT
STATE OF MISSOURI )
) ss.
COUNTY OF ▇▇▇▇▇▇▇ )
BE IT REMEMBERED, that on this 30th day of July, 1996,
before me, the undersigned, a notary public in and for said
state, came ▇▇▇▇▇ ▇▇▇▇, Vice President 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.
▇▇▇▇ ▇. ▇▇▇▇▇
Notary Public in and for
said County and State
My commission expires:
September 7, 1996
CONCORDE CAREER COLLEGES, INC.
ATTEST:
By: M. ▇▇▇▇▇ ▇▇▇▇▇▇
M. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇ Vice President
Secretary
ACKNOWLEDGMENT
STATE OF MISSOURI )
) ss.
COUNTY OF ▇▇▇▇▇▇▇ )
BE IT REMEMBERED, that on this 30th day of July, 1996,
before me, the undersigned, a notary public in and for said
state, came M. ▇▇▇▇▇ ▇▇▇▇▇▇, 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.
▇▇▇▇ ▇. ▇▇▇▇▇
Notary Public in and for
said County and State
My commission expires:
September 7, 1996
MINNESOTA INSTITUTE OF MEDICAL
AND DENTAL ASSISTANTS, INC.
ATTEST:
By: A. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
A. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇ President
Secretary
ACKNOWLEDGMENT
STATE OF MISSOURI )
) ss.
COUNTY OF ▇▇▇▇▇▇▇ )
BE IT REMEMBERED, that on this 30th day of July, 1996,
before me, the undersigned, a notary public in and for said
state, came A. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, President of Minnesota Institute
of Medical and Dental Assistants, Inc., a Minnesota 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.
▇▇▇▇ ▇. ▇▇▇▇▇
Notary Public in and for
said County and State
My commission expires:
September 7, 1996
TEXAS COLLEGE OF MEDICAL AND
AND DENTAL ASSISTANTS, INC.
ATTEST:
By: A. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
A. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇ President
Secretary
ACKNOWLEDGMENT
STATE OF MISSOURI )
) ss.
COUNTY OF ▇▇▇▇▇▇▇ )
BE IT REMEMBERED, that on this 30th day of July, 1996,
before me, the undersigned, a notary public in and for said
state, came A. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, President of Texas College of
Medical and Dental Assistants, Inc., a Texas 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.
▇▇▇▇ ▇. ▇▇▇▇▇
Notary Public in and for
said County and State
My commission expires:
September 7, 1996
UNITED HEALTH CAREERS
INSTITUTE, INC.
ATTEST:
By: A. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
A. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇ President
Secretary
ACKNOWLEDGMENT
STATE OF MISSOURI )
) ss.
COUNTY OF ▇▇▇▇▇▇▇ )
BE IT REMEMBERED, that on this 30th day of July, 1996,
before me, the undersigned, a notary public in and for said
state, came A. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, President of United Health Careers
Institute, Inc., a California 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.
▇▇▇▇ ▇. ▇▇▇▇▇
Notary Public in and for
said County and State
My commission expires:
September 7, ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ COLLEGE OF
MEDICAL AND DENTAL ASSISTANTS,
INC.
ATTEST:
By: A. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
A. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇ President
Secretary
ACKNOWLEDGMENT
STATE OF MISSOURI )
) ss.
COUNTY OF ▇▇▇▇▇▇▇ )
BE IT REMEMBERED, that on this 30th day of July, 1996,
before me, the undersigned, a notary public in and for said
state, came A. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, President of Southern California
College of Medical and Dental Assistants, Inc., a California
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.
▇▇▇▇ ▇. ▇▇▇▇▇
Notary Public in and for
said County and State
My commission expires:
September 7, 1996
COLLEGES OF DENTAL AND
MEDICAL ASSISTANTS, INC.
ATTEST:
By: A. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
A. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇ President
Secretary
ACKNOWLEDGMENT
STATE OF MISSOURI )
) ss.
COUNTY OF ▇▇▇▇▇▇▇ )
BE IT REMEMBERED, that on this 30th day of July, 1996,
before me, the undersigned, a notary public in and for said
state, came A. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, President of Colleges of Dental
and Medical Assistants, Inc., a California 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.
▇▇▇▇ ▇. ▇▇▇▇▇
Notary Public in and for
said County and State
My commission expires:
September 7, 1996
COMPUTER CAREER INSTITUTE,
INC.
ATTEST:
By: A. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
A. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇ President
Secretary
ACKNOWLEDGMENT
STATE OF MISSOURI )
) ss.
COUNTY OF ▇▇▇▇▇▇▇ )
BE IT REMEMBERED, that on this 30th day of July, 1996,
before me, the undersigned, a notary public in and for said
state, came A. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, President of Computer Career
Institute, Inc., an Oregon 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.
▇▇▇▇ ▇. ▇▇▇▇▇
Notary Public in and for
said County and State
My commission expires:
September 7, 1996
CONCORDE CAREERS -
FLORIDA, INC.
ATTEST:
By: A. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
A. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇ President
Secretary
ACKNOWLEDGMENT
STATE OF MISSOURI )
) ss.
COUNTY OF ▇▇▇▇▇▇▇ )
BE IT REMEMBERED, that on this 30th day of July, 1996,
before me, the undersigned, a notary public in and for said
state, came A. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, President of Concorde Careers-
Florida, Inc., a Florida 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.
▇▇▇▇ ▇. ▇▇▇▇▇
Notary Public in and for
said County and State
My commission expires:
September 7, 1996
EXHIBIT A
Funds to be Applied to
Retirement of Preferred Stock
and
Redemption of Debenture
Allocated
Scheduled Aggregate Proceeds/
Source Date of Receipt Amount Percentage
(C>
San ▇▇▇▇ Sale SJ Closing Date $150,000 $ 75,000/50%
-Purchase Price
P/W Sale P/W Closing Date $705,000 $352,500/50%
-Purchase Price
P/W Sale 12/15/96 $ 75,000 $ 75,000/100%
-Noncompete
San ▇▇▇▇ Sale 12/31/96 $200,000 $100,000/50%
-Purchase Price
P/W Sale 12/15/97 $ 75,000 $ 75,000/100%
-Noncompete
P/W Sale 3/1/98-07 /50%
-Profit
Participation
______________________________
Subject to the actual closing of the respective sales of
assets.
The San ▇▇▇▇ Sale is currently scheduled to close on July
31, 1996.
The P/W Sale is currently scheduled to close on August 2,
1996.
Fee of 6% has been deducted from closing proceeds of the P/W
Sale.
It is agreed that in the event such proceeds are not paid
pursuant to the Noncompetition Agreement under the P/W Agreement,
Concord and/or P/W shall apply the next funds received by either
of them under the P/W Agreement for the Redemption/Retirement, up
to the amount of such failed payment.
"Profit Participation", up to a cumulative maximum amount of
$1,500,000, is due annually based upon the actual "Net Profit",
as defined in Exhibit 2.3 of the P/W Agreement, of the purchaser
of the P/W Assets for the fiscal years ended December 31, 1997
through December 31, 2006 and is payable on or before March 1 of
each of the following years (1998-2007). The amount to be paid
in any given year, is any, is not currently ascertainable. One
half of the monies so received, if any, shall be allocated
Proceeds.
EXHIBIT 4.1
IN CONFIRMATION OF THE OBLIGATIONS SET FORTH IN SECTIONS 2.4 and
4.1, above:
PERSON/▇▇▇▇▇▇▇▇ ASSOCIATES, INC.
ATTEST:
By: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇ Chairman of the Board
Secretary
ACKNOWLEDGMENT
STATE OF MISSOURI )
) ss.
COUNTY OF ▇▇▇▇▇▇▇ )
BE IT REMEMBERED, that on this 30th day of July, 1996,
before me, the undersigned, a notary public in and for said
state, came ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Chairman of the Board of
Person/▇▇▇▇▇▇▇▇ Associates, Inc., a New York 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.
▇▇▇▇ ▇. ▇▇▇▇▇
Notary Public in and for
said County and State
My commission expires:
September 7, 1996
EXHIBIT B
CONFIRMATION
The undersigned, ▇▇▇▇ ▇▇▇▇▇ Kansas City Bank, a Missouri
banking corporation, hereby confirms that it has been paid in
full with respect to all obligations owed to it under the ▇▇▇▇
▇▇▇▇▇ Agreement and that any conditions in the Agreement
requiring the subordination to, the consent of, or notice to ▇▇▇▇
▇▇▇▇▇ Kansas City Bank are null and void.
Dated: July 30, 1996
▇▇▇▇ ▇▇▇▇▇ KANSAS CITY BANK
By: ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, its
Senior Vice President
