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EXHIBIT 10.49
FIRST AMENDMENT TO BUSINESS LOAN AGREEMENT
PREAMBLE: THIS AMENDMENT, dated as of June 30, 1997 (this "Amendment"),
is made and entered into by and among BANK OF AMERICA, FSB (the "Bank"),
EDUCATIONAL MEDICAL, INC. ("EMI") and all those subsidiaries of EMI listed on
the signature page(s) to this Amendment (EMI and such subsidiaries hereinafter
sometimes collectively called the "Borrowers" and individually called a
"Borrower").
RECITALS:
WHEREAS, Borrowers and Lender are parties to a certain Business Loan
Agreement dated as of February 25, 1997 (the "Loan Agreement"; capitalized terms
used herein and not defined herein have the meanings assigned to them in the
Loan Agreement); and
WHEREAS, Borrowers and Lender desire to enter into this Amendment to
amend the Loan Agreement in certain respects as hereinafter set forth;
NOW, THEREFORE, in consideration of the foregoing premises, the mutual
covenants and conditions herein contained, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows agree as follows:
1. AMENDMENT TO SECTION 9.5 OF THE LOAN AGREEMENT. Section 9.5 of the
Loan Agreement is hereby amended by deleting the ratio "1.75:1.00" set forth
therein and substituting in lieu thereof the ratio of "1.50:1.00."
2. AMENDMENT TO SECTION 9.10 OF THE LOAN AGREEMENT. Section 9.10 of
the Loan Agreement is hereby amended by adding the following sentence at the
end of such Section:
In determining Borrowers' compliance with the covenant set forth in
this Section 9.10, there shall be excluded from the calculation of
Borrowers' capital expenditures that amount (which as of March 31, 1997
was approximately $900,000) reflected as capital expenditures on the
consolidated financial statements of EMI as a result of its accounting
for its acquisition of Educational Management, Inc. (pursuant to a
merger of such entity with and into EMI's wholly-owned subsidiary,
Nebraska Acquisition Corp.) as a pooling of interests.
3. MISCELLANEOUS.
(a) Effect of Amendment. The amendments to the Loan Agreement specified
hereinabove shall have retroactive effect to February 25, 1997, as if such
amendments were an integral part of the Loan Agreement as of that date. Except
as set forth expressly herein, all terms of the Loan Agreement and the other
documents, instruments and agreements executed and delivered in connection
therewith (collectively, "Loan Documents"), as amended hereby, shall be and
remain in full force and effect and shall constitute the legal, valid, binding
and enforceable
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obligations of Borrowers to Lender. To the extent any terms and conditions in
any of the Loan Documents shall contradict or be in conflict with any terms or
conditions of the Loan Agreement, after giving effect to this Amendment, such
terms and conditions are hereby deemed modified and amended accordingly to
reflect the terms and conditions of the Loan Agreement as modified and amended
hereby.
(b) Reaffirmation of Representations and Warranties. Borrowers hereby
ratify and reaffirm all of the representations and warranties set forth in the
Loan Agreement and the other Loan Documents, including without limitation, in
Section 8 of the Loan Agreement, except to the extent that such representation
and warranties relate to an earlier date or may be untrue or incorrect solely as
a result of occurrences permitted under the Loan Agreement.
(c) Ratification. Borrowers hereby restate, ratify and reaffirm each
and every term and condition set forth in the Loan Agreement, as amended hereby,
and the Loan Documents effective as of the date hereof.
(d) Estoppel. To induce Lender to enter into this Amendment, Borrowers
hereby acknowledge and agree that, as of the date hereof, and after giving
effect to this Amendment, no default or event of default hs occurred and is
continuing and, in addition, there exists no right of offset, defense,
counterclaim or objection in favor of Borrowers with respect to any obligations
of Borrowers to Lender.
(e) Governing Law. This Amendment shall be governed by Georgia law.
(f) Costs and Expenses. Borrowers agree to pay all reasonable costs and
expenses of Lender in connection with the preparation, execution, delivery and
enforcement of this Amendment and all other Loan Documents executed in
connection herewith, the closing hereof, and any other transactions contemplated
hereby, including the reasonable fees and out-of-pocket expense of Lender's
counsel.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officer or officers thereunto duly authorized, s of
the date first above written.
BANK OF AMERICA, FSB.
By:/s/
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Name:
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Title:
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EDUCATIONAL MEDICAL, INC.
By:/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President/CFO
ANDON COLLEGE, INC.
By:/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President/CFO
CALIFORNIA ACADEMY OF
MERCHANDISING, ART AND DESIGN,
INC.
By:/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President/CFO
DBS ACQUISITION CORP.
By:/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President/CFO
DEST EDUCATION CORPORATION
By:/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President/CFO
ANDON COLLEGE, INC.
By:/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President/CFO
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ICM ACQUISITION CORP.
By:/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President/CFO
HBC ACQUISITION CORP.
By:/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President/CFO
MARIC LEARNING SYSTEMS
By:/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President/CFO
MTSX ACQUISITION CORP.
By:/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President/CFO
OIOPT ACQUISITION CORP.
By:/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President/CFO
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PALO VISTA COLLEGE OF NURSING
AND ALLIED HEALTH SCIENCES, INC.
By:/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President/CFO
SACMD ACQUISITION CORP.
By:/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President/CFO
SCOTTSDALE EDUCATIONAL CENTER
FOR ALLIED HEALTH CAREERS,
INCORPORATED.
By:/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President/CFO