3.23. Insurance. Borrower and each
Subsidiary thereof currently maintains all insurance that is required to be maintained pursuant to Section 4.4 hereof.
3.24. Deposit Accounts. Schedule 3.24
lists all banks and other financial institutions other than Lender at which any Loan Party maintains deposit or other accounts as of the Closing Date and Schedule 3.24
correctly identifies the name, address and telephone number of each depository, the name in which the account is held, a description of the purpose of the account, and the complete account number therefor.
3.27. Bonding; Licenses. Except as set
forth on Schedule 3.27, as of the Closing Date, no Loan Party or any Subsidiary is a party to or bound by any surety bond agreement or bonding requirement with respect
to products or services sold by it or any trademark or patent license agreement with respect to products sold by it.
3.29. Affiliate Transactions. Except as
set forth on Schedule 5.4, as of the date of this Agreement there are no existing or proposed agreements, arrangements, understandings, or transactions between any Loan
Party and any of the officers, members, managers, directors, stockholders, parents, other interest holders, employees, or Affiliates (other than Subsidiaries) of any Loan Party or any members of their respective immediate families, and none of
the foregoing Persons is directly or indirectly indebted to or has any direct or indirect ownership, partnership, or voting interest in any Affiliate of any Loan Party or any Person with which any Loan Party has a business relationship or which
competes with any Loan Party (except that any such Persons may own stock in (but not exceeding 2.0% of the outstanding Stock of) any publicly traded company that may compete with a Loan Party).
3.30. Representations and Warranties in Loan
Documents. All representations and warranties made by each Loan Party in the Loan Documents are true and correct in all material respects as of the date of this Agreement, the Closing Date, the date of making of each Loan (or other
extension of credit) and as of any date that any Loan Party is expressly obligated to confirm the same under this Agreement or any other Loan Document.
3.31. Educational Approvals; Compliance with
Educational Laws.
(ii) Borrower, including its Subsidiaries and Schools, has been in material compliance with all applicable Educational Laws and with the terms and conditions of all Educational Approvals;
(iii) no material application made by any School to any Governmental Authority or Educational Agency has been denied;
(iv) except as disclosed on Schedule 3.31, neither Borrower nor any of its Subsidiaries or Schools has received written notice from any Governmental
Authority or Educational Agency that it has been placed on probation or ordered to show cause why any Educational Approval for any School or any of its educational programs should not be revoked;
(v) neither Borrower nor any of its Subsidiaries or Schools has received written notice that any current Educational Approval will not be renewed;
(vi) Borrower, including its Subsidiaries and Schools, has been in material compliance with any and all applicable Educational Laws relating to Financial Assistance Programs, including the program participation and administrative
capability requirements, as defined by the DOE at 34 C.F.R. 668 subpart B, including 668.14 and 668.15-16, as well as the student eligibility requirements and satisfactory progress requirements, as defined by DOE at 34 C.F.R. § 668.31-39;
(vii) no School has received greater than ninety percent (90%) of its revenues from Title IV Programs, as such percentage is required to be calculated under 34 C.F.R. §§ 668.14 and 668.28;
(viii) each School has complied with the Cohort Default Rate regulations set forth in 34 C.F.R. Part 668, Subpart N;
(ix) each School has been in compliance, in all material respects, with the applicable limitations set forth in 34 C.F.R. § 600.7;
(x) Borrower, including its Subsidiaries and Schools, has obtained or maintained all material Educational Approvals required to operate each additional campus, location, or facility of the Schools opened or acquired after the date
of this Agreement and required in order to disburse Title IV Program funds to students at such additional campus, location, or facility, as applicable;
(xi) Borrower, including its Subsidiaries and Schools, has timely reported, in compliance in all material respects with the applicable provisions of 34 C.F.R. Part 600: (x) the addition of any new educational programs or locations;
and (y) any shifts in ownership or control, including any changes in reported ownership levels or percentages;
(xii) Borrower, including its Subsidiaries and Schools, has complied, in all material respects, with all Educational Laws related to the closure or cessation of instruction at any location or facility, including requirements for
teaching out students from such location or facility;
(xiii) Borrower, including its Subsidiaries and Schools, has complied, in all material respects, with the DOE requirements that no student receive a disbursement of Title IV Program funds prior to the date for which such student was
eligible for such disbursement;
(xiv) Borrower, including its Subsidiaries and Schools, have not violated in any material respect any of the Title IV Program requirements, as set forth at 20 U.S.C. § 1094(a)(20) and implemented at 34 C.F.R. § 668.14(b)(22),
regarding the payment of a commission, bonus, or other incentive payment based directly or indirectly on success in securing enrollments or financial aid to any Person engaged in any student recruiting or admission activities or in making
decisions regarding the awarding of Title IV Program funds;
(xv) Borrower, including its Subsidiaries and Schools, has complied, in all material respects, with 20 U.S.C. § 1085(d)(5) and 34. C.F.R. § 682.212 regarding prohibited inducements in the Federal Family Education Loan Program;
(xvi) each School has complied, in all material respects, with the Educational Laws prohibiting any School, employee, agent or official thereof from accepting any gift, payment, inducement, benefit, staffing assistance, advisory
board position, or other thing of value in exchange for directing Educational Loan or Private Educational Loan applications to any lender;
(xvii) neither Borrower nor any of its Subsidiaries or Schools has received any written notice of any investigation by any Educational Agency or other Governmental Authority regarding Borrower's, any Subsidiary's or any School's
student lending practices;
(xviii) neither Borrower, nor any of its Subsidiaries or Schools, has provided any educational instruction on behalf of any other institution or organization of any sort, and no other institution or organization of any sort has
provided any educational instruction on behalf of any School;
(xix) Borrower, including its Subsidiaries and Schools, has materially complied with the DOE's financial responsibility requirements in accordance with 34 C.F.R. § 668.171-175 not including any compliance based on the posting of an
irrevocable letter of credit in favor of the DOE or the placement by the DOE in the "zone alternative" as set forth at 34 C.F.R. § 668.175(d);
(xx) except as disclosed on Schedule 3.27 and for state surety bonds required for the purposes of licensure or authorization by any Governmental Authority
or Educational Agency, neither Borrower, nor any of its Subsidiaries or Schools have received written notice of a request by any Governmental Authority or Educational Agency requiring Borrower, any Subsidiary or any School to post a letter of
credit or other form of surety for any reason, including any request for a letter of credit based on late refunds pursuant to 34 C.F.R. § 668.173, or received any request or requirement that the School process its Title IV Program funding
under the reimbursement or heightened cash monitoring procedures, other than Heightened Cash Monitoring Level 1 procedures, as those procedures are set forth at 34 C.F.R. § 668.162, and other than as disclosed on Schedule 3.31;
(xxi) Borrower, including its Subsidiaries and Schools, has complied in all material respects with Educational Laws regarding misrepresentation, including 34 C.F.R. Part 668 Subpart F;
(xxii) Borrower, including its Subsidiaries and Schools, has complied, in all material respects, with the consumer disclosure requirements in 34 C.F.R. Part 668 Subpart D;
(xxiii) each School has complied, in all material respects, with any applicable Educational Laws regarding that School's completion, placement, withdrawal and retention rates, and, to Borrower's knowledge, has accurately calculated and
reported all such rates;
(xxiv) neither Borrower nor its Subsidiaries, nor any Person that exercises Substantial Control (as that term is defined at 34 C.F.R. § 668.174(c)(3)) over Borrower or any Subsidiary of Borrower or any School, or member of such
person's family (as the term "family" is defined in 34 C.F.R. § 668.174(c)(4)), alone or together, (i) exercises or exercised Substantial Control over another institution or third-party servicer (as that term is defined in 34 C.F.R. § 668.2)
that owes a liability for a violation of a Title IV Program requirement or (ii) owes a liability for a Title IV Program violation;
(xxv) to the knowledge of Borrower, neither Borrower nor any of its Subsidiaries or Schools have employed in a capacity involving administration of Title IV Program funds, any individual who has been convicted of, or has pled nolo
contendere or guilty to, a crime involving the acquisition, use or expenditure of funds of a Governmental Authority or Educational Agency, or has been administratively or judicially determined to have committed fraud or any other material
violation of law involving funds of any Governmental Authority or Educational Agency;
(xxvi) to the knowledge of Borrower, neither Borrower nor any of its Subsidiaries or Schools have contracted with an institution or third-party servicer that has been terminated under § 487 of the HEA for a reason involving the
acquisition, use, or expenditure of funds of a Governmental Authority or Educational Agency, or has been administratively or judicially determined to have committed fraud or any other material violation of law involving funds of any
Governmental Authority or Educational Agency;
(xxvii) neither Borrower nor any of its Subsidiaries, nor any owner that has the power, by contract or ownership interest, to direct or cause the direction or management of policies of any School has filed for relief in bankruptcy or
had entered against it an order for relief in bankruptcy;
(xxviii) neither Borrower nor any of its Subsidiaries, or any officer of Borrower or a Subsidiary or a School has pled guilty to, pled nolo contendere, or been found guilty of, a crime involving the acquisition, use or expenditure of
funds under the Title IV Programs or been judicially determined to have committed fraud involving funds under the Title IV Programs;
(xxix) to the knowledge of Borrower, neither Borrower nor any of its Subsidiaries or Schools has contracted with any Person that has been, or whose officers or employees have been, convicted of, or pled nolo contendere or guilty to, a
crime involving the acquisition, use or expenditure of funds of any Governmental Authority or Educational Agency, or administratively or judicially determined to have committed fraud or any other material violation of law involving funds of
any Governmental Authority or Educational Agency; and
(xxx) Borrower, its Subsidiaries and each School has complied, in all material respects, with all applicable requirements regarding the safeguarding of student records, including the Family Educational Rights and Privacy Act (20
U.S.C. § 1232g; 34 C.F.R. Part 99).
(b) Each current Educational Approval is in full force and effect, and no proceeding for the suspension, material
limitation, revocation, termination or cancellation of any Educational Approval is pending or, to the knowledge of Borrower, threatened.
(c) Each
School (i) is an "eligible institution," as defined in 34 C.F.R. § 600.2 (and the other applicable sections incorporated therein by reference) and each School is a "proprietary institution of higher education" as defined at 34 C.F.R. § 600.5;
(ii) is in material compliance with the applicable "state authorization" requirements set forth at 34 C.F.R. § 600.9 and meets the qualifications to be licensed by the applicable Governmental Authorities and Educational Agencies; and (iii) is
accredited by the applicable Accrediting Bodies, and has been certified by the DOE as an eligible institution of higher education and is a party to a program participation agreement with the DOE.
(d) To
the knowledge of Borrower, no fact or circumstance exists or is reasonably likely to occur that would reasonably be expected to result in the delay, termination, revocation, suspension, restriction or failure to obtain renewal of any
Educational Approval or the imposition of any material fine, penalty or other sanctions for violation of any legal or regulatory requirements relating to any Educational Approval;
(e) Borrower,
including its Subsidiaries and Schools, is in material compliance with all Educational Agency, DOE, and other Governmental Authority requirements and regulations, including requirements set forth at 34 C.F.R. § 668.22, relating to (i) fair
and equitable refunds policy and (ii) the calculation and timely repayment of federal and nonfederal funds.
(f) To
the knowledge of Borrower, there exist no facts or circumstances attributable to Borrower, its Subsidiaries or Schools or any other Person that exercises Substantial Control (as that term is defined at 34 C.F.R. § 668.174(c)(3)) with respect
to Borrower, its Subsidiaries or Schools, that would, individually or in the aggregate, reasonably be expected to materially and adversely affect Borrower's, any Subsidiary's or any School's ability to obtain any required notices or consents
under Educational Laws, Educational Approval or other consent or approval that must be obtained in connection with the transactions under the Loan Documents.
Borrower agrees that from and after the date hereof and until the Termination Date:
4.1. Maintenance of Existence and Conduct of Business. Borrower shall and shall cause its Subsidiaries to (a) do or cause to be done all things necessary to preserve and keep
in full force and effect its corporate and, as applicable, limited liability company or other organizational existence and its material rights and franchises, (b) continue to conduct its business substantially as now conducted or as otherwise
permitted hereunder, (c) at all times maintain, preserve and protect all of its assets and properties used or useful in the conduct of its business, and keep the same in good repair, working order and condition in all material respects
(ordinary wear and tear and damage by casualty to the extent covered by insurance complying with the terms of this Agreement and any applicable provision of any other Loan Document excepted) and from time to time make, or cause to be made,
all necessary or appropriate repairs, replacements and improvements thereto consistent with industry practices, except as could not reasonably be expected to have a Material Adverse Effect, and (d) transact its material business operations
only in such corporate (or, as applicable, limited liability company or other organizational) and trade names as are set forth in Schedule 4.1 (or otherwise set
forth in any relevant joinder documentation or otherwise notified to Lender in writing).
4.2. Payment
of Charges.
(a) Subject to Section 4.2(b), Borrower shall, and shall cause each of its Subsidiaries
to, pay and discharge or cause to be paid and discharged promptly all Charges payable by it, including (i) Charges imposed upon it, its income and profits, or any of its property (real, personal or mixed) and all Charges with respect
to Tax, social security and unemployment withholding with respect to its employees, (ii) lawful claims for labor, materials, supplies and services or otherwise, and (iii) all storage or rental charges payable to warehousemen, processors and
bailees, in each case, before any thereof shall become past due, except in the case of clauses (ii) and (iii) where the failure to pay or discharge such Charges would not result reasonably be expected to have a Material Adverse Effect.
(b) Borrower
(on behalf of itself or any Subsidiary) may in good faith contest, by appropriate proceedings, the validity or amount of any Charges, Taxes or claims described in Section
4.2(a); provided, that (i) adequate reserves with respect to such contest are maintained on the books of Borrower or such Subsidiary,
in accordance with GAAP; (ii) no Lien (other than a Permitted Encumbrance) shall be imposed to secure payment of such Charges that is superior to any of the Liens securing payment of the Obligations and such contest is maintained and
prosecuted continuously and with diligence and operates to suspend collection or enforcement of such Charges, (iii) none of the Collateral becomes subject to forfeiture or loss as a result of such contest, and (iv) Borrower shall (or cause
such Subsidiary to) promptly pay or discharge such contested Charges, Taxes or claims and all additional charges, interest, penalties and expenses, if any, and shall deliver to Lender evidence reasonably acceptable to Lender of such
compliance, payment or discharge, if such contest is terminated or discontinued adversely to such Loan Party or the conditions set forth in this Section 4.2(b) are
no longer met.
4.3. Books and Records. Borrower shall, and shall cause each of its Subsidiaries to, keep adequate books and records with respect to its business activities in which proper
entries, reflecting all financial transactions, are made in accordance with GAAP and on a basis consistent with the Financial Statements delivered to Lender on or prior to the Closing Date.
4.4. Insurance. Borrower shall, and shall cause each of its Subsidiaries to, maintain with financially sound and reputable insurance companies, (a) adequate insurance for its
insurable properties, all to such extent and against such risks, including fire, casualty, business interruption and other risks insured against by extended coverage, as is customary with companies in the same or similar businesses operating
in the same or similar locations, and (b) such other insurance as is required pursuant to the terms of any Collateral Document.
4.5. Compliance with Laws. Borrower shall, and shall cause each of its Subsidiaries to, comply with all federal, state, local and foreign Laws and regulations applicable to
it, including ERISA, labor Laws, and Environmental Laws and Environmental Permits, except to the extent that the failure to comply, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect. Each
Loan Party and each Subsidiary will maintain in effect policies and procedures reasonably designed to ensure compliance by them and their respective directors, officers, employees and agents with applicable Sanctions. Each Loan Party and each
Subsidiary will comply with commercially reasonable requests by Lender for information or documentation necessary to ensure that each Loan Party and Subsidiary is compliant with any applicable federal or state laws and not engaged in any act
or omission that would cause Lender to be in breach of any applicable Law. Without limiting the generality of the foregoing and notwithstanding any limitation contained therein, Borrower shall maintain all Educational Approvals and
specialized accrediting agency approvals necessary to conduct its operations and offer its educational programs, except where the failure to maintain such Educational Approvals or specialized accrediting agency approvals could not reasonably
be expected to result in a Material Adverse Effect.
4.6. [Reserved].
4.7. Intellectual Property. Borrower shall, and shall cause each of its Subsidiaries to, (a) conduct its business and affairs without infringement of or interference with any Intellectual
Property of any other Person in any material respect and shall comply in all material respects with the terms of its Licenses and (b) maintain and preserve at all times all Intellectual Property which is material to the business or
operations of Borrower or any of its Subsidiaries.
4.8. Environmental Matters. Borrower shall and shall cause each of its Subsidiaries to (a) conduct its operations and keep and maintain its Real Estate in compliance with all
Environmental Laws and Environmental Permits other than noncompliance that could not reasonably be expected to have a Material Adverse Effect and (b) promptly notify Lender of any notice, claim, event or occurrence that could reasonably be
expected to give rise to a material liability under Environmental Laws or Environmental Permits.
4.9 [Reserved].
4.10 [Reserved].
4.11. Cash Management. On or prior to the
date that is ninety (90) days after the Closing Date (or such later time as Lender may agree), Borrower and each Subsidiary will establish, and will maintain until the Termination Date, its primary banking relationship, depositary and operating
accounts and cash management services with Lender; provided that, the Loan Parties may maintain depositary and operating accounts permitted under Section 5.2(c)(ii). Borrower authorizes Lender to automatically and without further notice to charge Borrower's account specified on Schedule 4.11 (or such other account held with Lender as is specified by Borrower and approved by Lender from time to time after the Closing Date) for all Obligations then owing under any Loan
Document.
4.12. Maintenance of Property; Material Contracts.
Without limitation of Section 4.7(b), Borrower shall (a) maintain and preserve, and shall cause each of its Subsidiaries to maintain and preserve, all its property which is used or useful in its business in good working order and condition,
ordinary wear and tear excepted and shall make all necessary repairs thereto and renewals and replacements thereof, except where the failure to do so would not reasonably be expected to have, either individually or in the aggregate, a Material
Adverse Effect and (b) perform and observe all the terms and provisions of each Material Contract to be performed or observed by it, maintain each such Material Contract in full force and effect, enforce each such Material Contract in
accordance with its terms, take all such action to such end as may be from time to time requested by Lender and, upon request of Lender, make to each other party to each such Material Contract such demands and requests for information and
reports or for action as any Loan Party or any of its Subsidiaries is entitled to make under such Material Contract, and cause each of its Subsidiaries to do so. Borrower will notify Lender in writing, within ten Business Days after the earlier
of the date on which Borrower or any of its Subsidiaries learns of, or is notified of the occurrence of, any breach by Borrower or any Subsidiary of, a notice of termination or acceleration of, or any demand for adequate assurances under, any
Material Contract.
4.13. Inspection of Property and Books and Records. Borrower shall, and shall cause each of its Subsidiaries to, during normal
business hours and upon reasonable advance written notice (unless an Event of Default shall have occurred and be continuing, in which event no notice shall be required and Lender shall have access at any and all times during the continuance
thereof): (i) provide access to any of its properties to Lender and any of its Related Persons, as frequently as Lender determines to be appropriate; and (ii) permit Lender and any of its Related Persons to inspect and make extracts and copies
from all of such Person's books and records, in each instance, at the Loan Parties' sole cost and expense; provided that the Loan Parties shall only be
obligated to reimburse Lender for the expenses for (x) two such inspections per year when no Event of Default has occurred and is continuing and (y) each such inspection initiated when an Event of Default has occurred and is continuing.
4.14. Use of Proceeds. Borrower shall
use the proceeds of the Advances solely as follows: (a) to pay costs and expenses required to be paid pursuant to Section 10.1, and (b) for working capital, capital
expenditures and other general corporate (and, as applicable, limited liability company or other organizational) purposes not in contravention of any requirement of Law and not in violation of this Agreement or the other Loan Documents.
4.15. Further Assurances.
(a) Borrower
shall, and shall cause each of its Subsidiaries to, ensure that all written information, exhibits and reports furnished to Lender, when taken as a whole and at the time furnished, do not and will not contain any untrue statement of a material
fact and do not and will not omit to state any material fact or any fact necessary to make the statements contained therein not misleading in light of the circumstances in which made, and will promptly disclose to Lender and correct any
defect or error that may be discovered therein or in any Loan Document or in the execution, acknowledgement or recordation thereof.
(b) Promptly
upon request by Lender, the Loan Parties shall and, subject to the limitations set forth herein and in the Collateral Documents, shall cause each of their Subsidiaries to take such additional actions and execute such documents as Lender may
reasonably require from time to time in order (i) to carry out more effectively the purposes of this Agreement or any other Loan Document, (ii) to subject to the Liens created by any of the Collateral Documents any of the properties, rights
or interests covered by any of the Collateral Documents, (iii) to perfect and maintain the validity, effectiveness and priority of any of the Collateral Documents and the Liens intended to be created thereby, and (iv) to better assure,
convey, grant, assign, transfer, preserve, protect and confirm to Lender the rights granted or now or hereafter intended to be granted to Lender under any Loan Document. Without limiting the generality of the foregoing and except as otherwise
approved in writing by Lender, the Loan Parties shall cause each of their Domestic Subsidiaries and any Person formed or created as a result of a statutory division of a Loan Party, within thirty (30) days (or such longer period to which
Lender consents in its sole discretion) after formation, creation or acquisition thereof, to guaranty the Obligations and grant to Lender a security interest in such Person's personal property, subject to the limitations set forth herein and
in the applicable Collateral Documents, to secure such guaranty.
(c) Furthermore
and except as otherwise approved in writing by Lender, each Loan Party shall pledge all of the Stock of each of the Subsidiaries directly owned by it to Lender to secure the Obligations, concurrently with such Loan Party becoming a Loan
Party; provided that such percentage of the outstanding voting Stock of any Foreign Subsidiary shall be reduced to 65% if a greater percentage shall result in
material U.S. adverse tax consequences. In connection with each pledge of Stock, the Loan Parties shall deliver, or cause to be delivered, to Lender, irrevocable proxies and stock powers and/or assignments, as applicable, duly executed in
blank.
(d) The Loan Parties shall
deliver, or cause to be delivered, to Lender appropriate resolutions, secretary certificates, certified Organizational Documents and, if requested by Lender, legal opinions relating to the matters described in this Section 4.15 (which opinions shall be in form and substance reasonably acceptable to Lender and, to the extent applicable, substantially similar to the opinions delivered on the Closing
Date), in each instance with respect to each Loan Party formed or acquired after the Closing Date. In addition to, and without limiting, any of the foregoing, promptly following any request therefor, the Loan Parties shall deliver, or cause
to be delivered, to Lender: (i) such other information regarding the operations, material changes in ownership of Stock, business affairs and financial condition of any Loan Party or any Subsidiary, or compliance with the terms of this
Agreement, as Lender may reasonably request and (ii) information and documentation reasonably requested by Lender for purposes of compliance with applicable "know your customer" and anti-money laundering rules and regulations, including the USA
PATRIOT Act.
(e) Unless
otherwise agreed by Lender, each Subsidiary, whether existing on the Closing Date or acquired thereafter, shall be a Wholly-Owned direct or indirect Domestic Subsidiary of Borrower.
Borrower agrees that from and after the date hereof and until the Termination Date:
5.1. Asset Dispositions, Etc. Except as expressly permitted under Sections 5.8, 5.11 or 5.13,
Borrower shall not, nor shall it permit any of its Subsidiaries to, directly or indirectly, sell, assign, lease, convey, transfer, undergo a statutory division or otherwise dispose of (whether in one or a series of transactions) any property
(including the Stock of any Subsidiary, whether in a public or a private offering or otherwise, and accounts and notes receivable, with or without recourse) or enter into any agreement to do any of the foregoing, except:
(a) dispositions
to any Person other than Borrower or an Affiliate of Borrower (i) in the Ordinary Course of Business to any Person other than an Affiliate of Borrower of inventory or (ii) of worn-out, obsolete or surplus equipment, Intellectual Property,
tangible personal property or Investments;
(b) so
long as no Default has occurred and is continuing or would arise therefrom, sales of delinquent notes or accounts receivable in the ordinary course of business for purposes of collection only (and not for the purpose of any bulk sale,
securitization or similar transaction);
(c) licenses,
sublicenses or subleases granted to others not interfering in any material respect with the business of Borrower and its Subsidiaries;
(d) Investments
permitted by Section 5.2(e);
(e) dispositions
(other than of the Stock of any Subsidiary of any Loan Party) not otherwise permitted hereunder which are made for fair market value; provided, that
(i) at the time of any disposition, no Event of Default shall exist or shall result from such disposition, (ii) not less than 75% of the aggregate consideration for such disposition shall be paid in cash, and (iii) the aggregate fair market
value of all assets so sold by Borrower and its Subsidiaries, together, shall not exceed $2,000,000 in any Fiscal Year;
(f) (i)
dispositions of Cash Equivalents in the Ordinary Course of Business made to a Person that is not an Affiliate of any Loan Party and (ii) conversions of Cash Equivalents into cash or other Cash Equivalents; and
(g) sale
of Euphoria Acquisition, LLC and/or the School and related assets in Las Vegas, Nevada known as Euphoria Institute of Beauty Arts & Sciences.
5.2. Investments; Loans and Advances. Borrower shall not, nor shall it permit any of its Subsidiaries to, make or permit to exist any Investment in, or make, accrue or permit
to exist loans or advances of money to, any Person, through the direct or indirect lending of money, holding of securities or otherwise, except that Borrower and each of its Subsidiaries may:
(a) hold
investments comprised of notes payable, or stock or other securities issued by account debtors to such Person pursuant to negotiated agreements with respect to settlement of such account debtor's accounts receivable in the Ordinary Course of
Business, consistent with past practices;
(b) maintain
its existing Investments (including in its Subsidiaries) outstanding on the Closing Date (with respect to Investments other than Stock of Subsidiaries, as set forth on Schedule
5.2);
(c) maintain deposit and
other accounts with (i) Lender and (ii) without limiting Section 4.11, other financial institutions so long as the aggregate amount thereof does not exceed
$5,000,000, provided that such amount may be exceeded with the consent of Lender (which consent may be withheld in its sole discretion, and may be conditioned on
the obtaining of a deposit account control agreement from such other financial institution in form and substance satisfactory to Lender);
(d) make Investments in cash
and Cash Equivalents;
(e) make
Investments by a Loan Party in a Loan Party;
(f) make
Permitted Acquisitions;
(g) consummate
Stock Buybacks from time to time as permitted under Section 5.12; and
(h) make
other Investments not exceeding $1,000,000 in the aggregate at any time outstanding.
5.3. Indebtedness.
Borrower shall not, nor shall it permit any of its Subsidiaries to, create, incur, assume or permit to exist any
Indebtedness, except (without duplication):
(a) Indebtedness
secured by purchase money security interests and Capital Leases permitted in Section 5.7(c);
(b) the
Advances and the other Obligations;
(c) unfunded
employee benefit plan obligations and liabilities to the extent they are permitted to remain unfunded under applicable Law;
(d) existing
Indebtedness described on Schedule 5.3 and refinancings thereof or amendments or modifications thereof that do not have the effect of increasing the principal
amount thereof (except for increases by any amount necessary to cover reasonable fees and expenses incurred in connection therewith) or changing the amortization thereof (other than to extend the same) and that are otherwise on terms and
conditions no less favorable (except for any increase in interest or fee rates to then-market rates) to any Loan Party or Lender, as determined by Lender, than the terms of the Indebtedness being refinanced, amended or modified;
(e) to
the extent constituting Indebtedness, Contingent Obligations permitted pursuant to Section 5.6;
(f) intercompany Indebtedness owing by Borrower or a Subsidiary to Borrower or a Subsidiary as a result of an Investment permitted by Section 5.2(e);
(g) Indebtedness
owed to any Person providing workers' compensation, health, disability or other employee benefits or property, casualty or liability insurance, pursuant to reimbursement or indemnification obligations to such Person, in each case incurred in
the ordinary course of business;
(h) Indebtedness
of any Loan Party in respect of performance bonds, bid bonds, appeal bonds, surety bonds and similar obligations, in each case provided in the Ordinary Course of Business; and
(i) other
unsecured Indebtedness not to exceed $1,500,000 in the aggregate outstanding at any time.
5.4. Employee
Loans and Affiliate Transactions.
Borrower shall not, nor shall it permit any of its Subsidiaries to, enter into any transaction with any Affiliate of
Borrower or of any such Subsidiary, except:
(a) as
expressly permitted by this Agreement;
(b) in
the Ordinary Course of Business and pursuant to the reasonable requirements of the business of such Loan Party or Subsidiary upon fair and reasonable terms no less favorable to such Loan Party or Subsidiary than would be obtained in a
comparable arm's length transaction with a Person not an Affiliate of Borrower or such Subsidiary, in each case, exclusive of any loans or advances except to the extent expressly permitted by Sections 5.3(i), 5.4(c) and 5.4(d);
(c) loans
or advances to employees of Borrower or a Subsidiary for travel, entertainment and relocation expenses and other purposes in the Ordinary Course of Business not to exceed $100,000 in the aggregate outstanding at any time as to all such loans
and advances;
(d) issuance
of Stock, other equity interests or cash awards, and Stock Buybacks with any Person, in each case as permitted under Section 5.5;
(e) transactions
with Affiliates existing as of the Closing Date and described in Schedule 5.4; and
(f) non-cash
loans or advances made by Borrower to employees of Borrower or its Subsidiaries that are simultaneously used by such Persons to purchase Stock of Borrower.
5.5. Capital Structure and Business. Except as expressly permitted under Section 5.8 or Section 5.13, Borrower shall not, nor shall it permit any of its Subsidiaries to, make any changes in its equity structure, issue any Stock or amend any of its
Organizational Document in any respect, in each case, which would be materially adverse to Lender; provided that, for the avoidance of doubt, Borrower may issue
Stock, other equity interests or cash awards (if permitted under the Lincoln Educational Services Corporation 2020 Long-Term Incentive Plan (the "LTIP")) pursuant to an equity option or incentive plan approved by Borrower's board of
directors, including the LTIP or as otherwise permitted under Section 5.12 so long as such issuance, award or other change would not be materially adverse to
Lender. Borrower shall not, nor shall it permit any of its Subsidiaries to, engage in any line of business substantially different from those lines of business carried on by it on the Closing Date or any reasonable extensions or expansions
thereof.
5.6. Contingent Obligations. Borrower shall not, nor shall it permit any of its Subsidiaries to, create, incur, assume or permit to exist any Contingent Obligations except in
respect of the Obligations and except:
(a) endorsements
for collection or deposit in the Ordinary Course of Business;
(b) Rate
Contract Obligations to Lender or its Affiliates;
(c) Contingent
Obligations of the Loan Parties and their Subsidiaries existing as of the Closing Date and listed on Schedule 5.6, including extensions and renewals thereof which
do not increase the amount of such Contingent Obligations or impose materially more restrictive or adverse terms on the Loan Parties and their Subsidiaries as compared to the terms of the Contingent Obligation being renewed or extended;
(d) Contingent
Obligations arising under requirements by the U.S. Department of Education to post letters of credit in favor of the Department of Education;
(e) Contingent
Obligations arising under indemnity agreements to title insurers to cause such title insurers to issue to Lender title insurance policies;
(f) Contingent
Obligations arising with respect to customary indemnification obligations in favor of purchasers in connection with dispositions permitted under Section 5.1(e);
(g) Contingent
Obligations under the Loan Documents, including arising under Letters of Credit; and
(h) Contingent
Obligations arising under guaranties of obligations of Borrower or any Subsidiary, which obligations are otherwise permitted hereunder, including without limitation in respect of real property leases of Schools and other operating facilities;
provided, that if such obligation is subordinated to the Obligations, such guaranty shall be subordinated to the same extent.
5.7. Liens. Borrower shall not, nor shall it permit any of its Subsidiaries to, create, incur, assume or permit to exist any Lien on or with respect to any of its properties
or assets (whether now owned or hereafter acquired) except for the following:
(a) Permitted
Encumbrances;
(b) Liens
in existence on the date hereof and summarized on Schedule 5.7 securing Indebtedness described on Schedule
5.3 and permitted refinancings, extensions and renewals thereof, including extensions or renewals of any such Liens; provided, that the
principal amount so secured is not increased and the Lien does not attach to any other property; and
(c) Liens
created after the date hereof by conditional sale or other title retention agreements (including Capital Leases) or in connection with purchase money Indebtedness with respect to equipment and fixtures acquired in the Ordinary Course of
Business, involving the incurrence of an aggregate amount of purchase money Indebtedness and Capital Lease Obligations of not more than $10,000,000 outstanding at any one time for all such Liens (provided that such Liens attach only to the assets subject to such purchase money debt and such Indebtedness is incurred within 20 days following such purchase and does not exceed 100% of the
purchase price of the subject assets).
In addition, no Loan Party shall, nor shall it permit any of its Subsidiaries to, become a party to any agreement, note, indenture or instrument, or take any other action, that would prohibit the creation of a Lien on any of its properties or
other assets in favor of Lender as additional collateral for the Obligations, except operating leases, Capital Leases or Licenses permitted hereunder which prohibit Liens solely upon the assets that are subject thereto.
5.8. Consolidations and Mergers. Borrower shall not, nor shall it permit any of its Subsidiaries to, merge, consolidate with or into, or convey, transfer, lease or otherwise
dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person or undergo any statutory division, except (a) as expressly
permitted by Section 5.1 and (b) upon not less than 15 Business Days prior written notice to Lender, (i) any Subsidiary of Borrower may merge with, dissolve or
liquidate into (in each case in accordance with applicable Law) Borrower or a Domestic Subsidiary; provided, that (A) Borrower or such Domestic
Subsidiary shall be the continuing or surviving entity (and Borrower shall be the continuing or surviving entity if Borrower is a party to such transaction) and such surviving Domestic Subsidiary shall be a Guarantor and comply with Section 4.15, (B) Borrower or applicable Subsidiary shall provide Lender with copies of all applicable documentation relating thereto, and (C) all actions required to
maintain perfected Liens on the Stock of the surviving entity and other Collateral in favor of Lender shall have been completed and (ii) any Foreign Subsidiary may merge with or dissolve or liquidate into another Foreign Subsidiary; provided that Borrower or applicable Subsidiary provide Lender with copies of all applicable documentation relating thereto and comply with Section 4.15 in
connection therewith to the extent the Stock of any such Foreign Subsidiary is pledged under the Loan Documents.
5.9. ERISA. Borrower shall not, nor shall Borrower cause or permit any of its Subsidiaries or ERISA Affiliates to, cause or permit to occur (a) an event that could result in
the imposition of a Lien under Section 430 or 6321 of the IRC or Section 303 or 4068 of ERISA or (b) an ERISA Event to the extent such ERISA Event would reasonably be expected to result in Taxes, penalties and other liability in excess of
$100,000 in the aggregate.
5.10. Hazardous Materials. Borrower
shall not, nor shall it permit any of its Subsidiaries to, cause or permit a Release of any Hazardous Material on, at, in, under, above, to, from or about any of the Real Estate where such Release would (a) violate in any respect, or form the
basis for any Environmental Liabilities under, any Environmental Laws or Environmental Permits or (b) otherwise adversely impact the value or marketability of any of the Real Estate or any of the Collateral, other than such violations or
Environmental Liabilities that could not reasonably be expected to have a Material Adverse Effect.
5.11. Sale Leasebacks. Borrower shall not, nor shall it permit any of its Subsidiaries to, engage in any sale leaseback, synthetic lease or similar transaction involving any
of its assets.
5.12. Restricted Payments. Borrower
shall not, nor shall it permit any of its Subsidiaries to, declare or make any Restricted Payments except that:
(a) any
Subsidiary of Borrower may declare and pay dividends to Borrower or any Subsidiary of Borrower owning Stock of such Subsidiary, in accordance with their respective ownership shares;
(b) Borrower
may engage in Stock Buybacks from time to time with any holder of its Stock to facilitate cash coverage of such Person's tax liabilities in connection with a Stock issuance;
(c) Borrower
may (i) declare and pay dividends from time to time, and (ii) engage in Stock Buybacks from time to time with any holder of its Stock from time to time as authorized by its board of directors, including in open-market transactions at
prevailing market prices, in privately negotiated transactions or by other means as determined by the Company's management, provided that in each case all of the following conditions are satisfied:
(i) no Default or Event of Default has occurred and is continuing or would arise as a result of such Restricted Payment;
(ii) after giving effect to such Restricted Payment and all other transactions occurring on such date, the Loan Parties are in compliance on a pro forma basis with the Total Liquidity covenant set forth in Section 6.2; and
(iii) no Advances are outstanding hereunder at the time of such Stock Buyback, in which case there shall be no cap on the aggregate amount of such Stock Buyback transactions;
(d) Borrower
may redeem from officers, directors and employees (or, upon resignation, retirement or death, former officers, directors and employees) Stock provided all of the following conditions are satisfied:
(i) no Default or Event of Default has occurred and is continuing or would arise as a result of such Restricted Payment;
(ii) after giving effect to such Restricted Payment and all other transactions occurring on such date, the Loan Parties are in compliance on a pro forma basis with (A) the Total Leverage Ratio required under Section 6.1, computed for the most recent Fiscal Quarter for which financial statements have been delivered and (B) the Total Liquidity covenant set forth in Section 6.2; and
(iii) no Advances are outstanding hereunder at the time of such redemption.
5.13. Change of Corporate Name or Location; Change
of Fiscal Year. Borrower shall not, nor shall it permit any of its Subsidiaries to, (a) change its name as it appears in official filings in the state of its incorporation or other organization, (b) change its chief executive
office, principal place of business, business offices or warehouses or locations at which Collateral is held or stored, or the location of its records concerning the Collateral, (c) change the type of entity that it is, (d) change its
organization identification number, if any, issued by its state of incorporation or other organization, or (e) change its state of incorporation or organization, unless in each case (i) at least 15 Business Days prior written notice (or such
later notice as is acceptable to Lender in its sole discretion) thereof is given to Lender and Lender has provided written acknowledgment that any reasonable action requested by Lender in connection therewith, including to continue the
perfection of any Liens in favor of Lender in any Collateral, has been completed or taken, (ii) the priority of all Liens in favor of Lender is not adversely affected, and (iii) any such new location shall be in the continental United States.
No Loan Party shall change its Fiscal Year without Lender's prior written consent.
5.14. No Restriction on Distributions; No Negative
Pledges. Except pursuant to the Loan Documents, Borrower shall not, nor shall it permit any of its Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual
restriction or encumbrance of any kind on the ability of any Subsidiary to pay dividends or make any other distribution on any of the Stock of such Subsidiary or to pay fees, including management fees, or make other payments and distributions
to Borrower or any other Subsidiary. Borrower shall not, nor shall it permit any of its Subsidiaries to, directly or indirectly, enter into, assume or become subject to any contractual obligation prohibiting or otherwise restricting the
existence of any Lien upon any of its assets in favor of Lender, whether now owned or hereafter acquired except in connection with any document or instrument governing Liens permitted pursuant to Section 5.7(c) provided that any such restriction contained therein relates only to the asset or assets subject to such permitted Liens.
5.15. [Reserved]
5.16. [Reserved]
5.17. [Reserved]
5.18. Margin Stock; Use of Proceeds.
Borrower shall not, nor shall it permit any of its Subsidiaries to, use any portion of the Advance proceeds, directly or indirectly, to purchase or carry Margin Stock or repay or otherwise refinance Indebtedness of any Loan Party or Subsidiary
or others incurred to purchase or carry Margin Stock, or otherwise in any manner which is in contravention of any requirement of applicable Law or in violation of this Agreement.
5.19 Sanctions; Use of Proceeds. Borrower shall not, nor shall it permit any of its Subsidiaries to, fail to comply with the Laws, regulations and executive orders referred
to in Section 3.12. No Loan Party will, directly or indirectly, use the proceeds of the Advances or Letters of Credit, or lend, contribute or otherwise make
available such proceeds to any subsidiary, joint venture partner or other Person, (i) to fund any activities or business of or with any Person, or in any country or territory, that, at the time of such funding, is the subject of Sanctions, or
(ii) in any other manner that would result in a violation of Sanctions by any Person (including any Person participating in the Advances or Letters of Credit, whether as Lender, underwriter, advisor, investor, or otherwise).
5.20. Prepayments of Other Indebtedness.
Borrower shall not, nor shall it permit any of its Subsidiaries to, directly or indirectly, voluntarily purchase, redeem, defease or prepay any principal of, premium, if any, interest or other amount payable in respect of any Indebtedness prior
to its scheduled maturity, other than (a) the Obligations, (b) Indebtedness secured by a Permitted Encumbrance if the asset securing such Indebtedness has been sold or otherwise disposed of in a transaction permitted hereunder, (c) a
refinancing of Indebtedness permitted under Section 5.3(d), (d) prepayments of other Indebtedness so long as (i) no Default or Event of Default would occur and be
continuing after giving effect to any such proposed prepayment and (ii) after giving effect to each such proposed prepayment (and all other transactions occurring on such date), the Loan Parties are in pro forma compliance with (A) the Total
Leverage Ratio required under Section 6.1, computed for the most recent Fiscal Quarter for which financial statements have been delivered and (B) the Total Liquidity
covenant set forth in Section 6.2, and (e) prepayment of intercompany Indebtedness permitted by this Agreement so long as in compliance with any subordination
provisions applicable to such intercompany Indebtedness.
5.21. Capital Expenditures. Borrower shall not, nor shall it permit any of its Subsidiaries to, make Capital Expenditures in excess of $10,000,000 in the aggregate in any
Fiscal Year, provided that any Capital Expenditure made when Total Liquidity is greater than $35,000,000 both before and after giving effect to such Capital Expenditure shall be permitted without regard to such $10,000,000 limitation set
forth above.
6.1. Leverage Ratio. Borrower shall not permit the Total Leverage Ratio, as of the end of any Fiscal Quarter, to be greater than 2.00 to 1.00.
6.2. Liquidity. Borrower shall not permit Total Liquidity at any time to be less than $30,000,000.
7.
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FINANCIAL STATEMENTS AND INFORMATION
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7.1. Reports and Notices. Borrower
hereby agrees that from and after the Closing Date and until the Termination Date, it shall deliver to Lender the Financial Statements, notices, Projections and other information at the times, to the Persons and in the manner set forth in Annex B.
7.2. Communication with Accountants.
Borrower authorizes Lender, on behalf of itself and each of its Subsidiaries, to communicate directly with its independent certified public accountants, including Deloitte & Touche LLP, and authorizes and shall instruct those accountants
and advisors to communicate to Lender information relating to Borrower or any of its Subsidiaries with respect to the business, results of operations and financial condition thereof; provided, that unless an Event of Default exists and is continuing the Lender shall request advance written approval (such approval not to be unreasonably withheld or delayed) from the Borrower, prior to communications
with any such accountants or advisors.
8.1. Conditions to the Initial Advances.
Lender shall not be obligated to make any Advance or incur any Letter of Credit Obligations on the Closing Date, or to take, fulfill, or perform any other action hereunder, until the following conditions have been satisfied or provided for in a
manner reasonably satisfactory to Lender, or waived in writing by Lender:
(a) Credit Agreement; Loan Documents. This Agreement and the other Loan Documents or counterparts hereof and thereof shall have been duly executed by, and delivered
to, Borrower, each other Loan Party, and Lender; and Lender shall have received such documents, instruments, agreements and legal opinions as Lender shall reasonably request in connection with the transactions contemplated by this Agreement
and the other Loan Documents, each in form and substance reasonably satisfactory to Lender.
(b) Approvals. Lender shall have received (i) satisfactory evidence that the Loan Parties have obtained all required consents and approvals of all Persons including
all requisite Governmental Authorities, to the execution, delivery and performance of this Agreement and the other Loan Documents or (ii) an officer's certificate in form and substance reasonably satisfactory to Lender affirming that no such
consents or approvals are required.
(c) Payment of Fees. Borrower shall have paid the Fees required to be paid on the Closing Date in the respective amounts specified in Section 2.4(e), and shall have reimbursed Lender for all Fees, costs and expenses of closing presented as of the Closing Date.
(d) Capital Structure: Other Indebtedness. The capital structure of each Loan Party and Subsidiary and the terms and conditions of all Indebtedness of each Loan
Party and Subsidiary shall be acceptable to Lender in its sole reasonable discretion.
(e) KYC Information; Beneficial Ownership. Lender shall have received
(i) documentation and other information reasonably requested by Lender in order to comply with applicable law, including the USA PATRIOT Act, and (ii) to the extent Borrower qualifies as a "legal entity customer" under the Beneficial Ownership
Regulation, a Beneficial Ownership Certification.
8.2. Further Conditions to Each Advance.
Lender shall not be obligated to fund any Advance, convert or continue any Advance as a Tranche Rate Loan or incur any Letter of Credit Obligation, if, as of the date thereof:
(a) any
representation or warranty by any Loan Party contained herein or in any other Loan Document, or which are contained in any certificate or other document furnished at any time under or in connection herewith or therewith, is untrue or
incorrect in any material respect (except that such materiality qualifier shall not be applicable to any representations and warranties that are already qualified or modified by materiality or Material Adverse Effect in the text thereof),
except to the extent that such representation or warranty expressly relates to an earlier date in which case such representation or warranty is untrue or incorrect in any material respect as of such earlier date (except that such material
qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof) and, in each case, except for changes therein expressly permitted or expressly contemplated by
this Agreement;
(b) any
Default or Event of Default has occurred and is continuing or would result after giving effect to any Advance (or the incurrence of any Letter of Credit Obligation); or
(c) after
giving effect to any Advance (or the incurrence of any Letter of Credit Obligations), the outstanding aggregate amount of the Revolving Exposure would exceed the Revolving Credit Commitment.
The request and acceptance by Borrower of the proceeds of any Advance (including the incurrence of any Letter of Credit Obligations or the
conversion or continuation of any Advance into, or as, a Tranche Rate Loan) shall be deemed to constitute, as of the date thereof, (i) a representation and warranty by each Loan Party that the conditions in this Section 8.2 have been satisfied and (ii) a reaffirmation by each Loan Party of the granting and continuance of Lender's Liens on the Collateral pursuant to the Collateral Documents.
9.
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EVENTS OF DEFAULT; RIGHTS AND REMEDIES
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9.1. Events of Default. The occurrence of any one or more of the following events (regardless of the reason therefor and whether or not caused by or within the control of
Borrower or any Subsidiary) shall constitute an "Event of Default" hereunder:
(a) Borrower
(i) fails to make any payment of principal of, or interest on, or Fees owing in respect of, the Advances or any of the other Obligations when due and payable, including any failure to cure any Overdrawn Amount in accordance with Section 2.2(b), or (ii) fails to pay or reimburse Lender for any cost or expense reimbursable hereunder or under any other Loan Document within 5 days following Lender's
demand for such reimbursement or payment of expenses; or
(b) Any
Loan Party fails or neglects to perform, keep or observe any of the provisions of Sections 3.12, 4.1, 4.11, 4.13, 4.15, 5, 6, or 7.2; or
(c) Any
Loan Party fails or neglects to perform, keep or observe any of the provisions of Section 7.1 and the same shall remain unremedied for 3 Business Days or more; provided, however, that the Loan Parties shall not have the right to cure any default under Section
7.1 if any default under Section 7.1 has occurred more than three times in any 12 month period;
(d) Any
Loan Party fails or neglects to perform, keep or observe any other provision of this Agreement or of any of the other Loan Documents (other than any provision embodied in or covered by any other clause of this Section 9.1) and the same shall remain unremedied for 30 days or more; provided, however, that such
30-day cure period shall not apply to: (i) a breach of any provision that cannot be cured or (ii) a breach or default of any other Loan Document if a period of cure is expressly provided for in such other Loan Document with respect to a
breach or default under such other Loan Document; or
(e) A
default or breach occurs under any agreement, document or instrument to which any Loan Party is a party (determined exclusive of the Loan Documents) that is not cured within any applicable grace period therefor, and such default or breach (i)
involves the failure to make any payment when due in respect of any Indebtedness or Contingent Obligations (determined exclusive of the Obligations) of any Loan Party and the aggregate principal amount of such Indebtedness or Contingent
Obligation is in excess of $1,000,000 in the aggregate (including (x) =drawn committed or available amounts and (y) amounts owing to all creditors under any combined or syndicated credit arrangements), or (ii) causes, or permits any holder of
such Indebtedness or Contingent Obligations or a trustee to cause, Indebtedness or Contingent Obligations or a portion thereof in excess of $1,000,000 in the aggregate to become due prior to its stated maturity or prior to its regularly
scheduled dates of payment, or cash collateral to be demanded in respect thereof, in each case, regardless of whether such default is waived, or such right is exercised, by such holder or trustee; or
(f) any
representation or warranty herein or in any Loan Document or in any written statement, report, Financial Statement or certificate made or delivered to Lender by any Loan Party is untrue or incorrect in any material respect as of the date when
made or deemed made; or
(g) Assets
of Borrower and its Subsidiaries (on a consolidated basis) with a fair market value of $500,000 or more are attached, seized, levied upon or subjected to a writ or distress warrant, or come within the possession of any receiver, trustee,
custodian or assignee for the benefit of creditors of any Loan Party and such condition continues for 45 days or more; or
(h) A
case or proceeding is commenced against any Loan Party seeking a decree or order in respect of such Loan Party (i) under the Bankruptcy Code or any other applicable federal, state or foreign bankruptcy or other similar Law, (ii) appointing a
custodian, receiver, liquidator, assignee, trustee or sequestrator (or similar official) for such Loan Party or for any substantial part of any such Loan Party's assets, or (iii) ordering the winding up or liquidation of the affairs of such
Loan Party, and such case or proceeding shall remain =dismissed or unstayed for 60 days or more or a decree or order granting the relief sought in such case or proceeding is granted by a court of competent jurisdiction; or
(i) Any
Loan Party (i) files a petition seeking relief under the Bankruptcy Code or any other applicable federal, state or foreign bankruptcy or other similar Law, (ii) consents to or fails to contest in a timely and appropriate manner to the
institution of proceedings thereunder or to the filing of any such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee or sequestrator (or similar official) for such Loan Party or for
any substantial part of any such Loan Party's assets, (iii) makes an assignment for the benefit of creditors, or (iv) takes any action in furtherance of any of the foregoing, or (v) admits in writing its inability to, or is generally unable
to, pay its debts as such debts become due; or
(j) (i)
A final judgment or judgments for the payment of money in excess of $1,500,000 in the aggregate at any time are outstanding against one or more of the Loan Parties (which judgments are not covered by insurance policies as to which liability
has been accepted by the insurance carrier), and the same are not, within 30 days after the entry thereof, discharged or execution thereof stayed or bonded pending appeal, or such judgments are not discharged prior to the expiration of any
such stay, (ii) any action shall be taken by a judgment creditor to attach or levy upon any property of any Loan Party to enforce any such judgment under clause (i) above obtained against a Loan Party, or (iii) any Loan Party shall fail
within 30 days after the entry thereof to discharge or stay pending appeal one or more non-monetary judgments or orders which, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect; or
(k) Any
material provision of any Loan Document for any reason ceases to be valid, binding and enforceable in accordance with its terms (or any Loan Party shall challenge the enforceability of any Loan Document or shall assert in writing, or engage
in any action or inaction based on any such assertion, that any provision of any of the Loan Documents has ceased to be or otherwise is not valid, binding and enforceable in accordance with its terms), or any Lien created under any Loan
Document ceases to be a valid and perfected first-priority Lien (except as otherwise expressly permitted herein or therein) in any of the Collateral purported to be covered thereby; or
(1) Any
Change of Control occurs; or
(m) The
dissolution or liquidation of Borrower or of any endorser or guarantor of the Obligations, or the merger or consolidation of any of the foregoing with a third party, or statutory division of the foregoing, or the lease, sale or other
conveyance of a material part of the assets or business of any of the foregoing to a third party outside the ordinary course of its business, or the lease, purchase or other acquisition of a material part of the assets or business of a third
party by any of the foregoing; or
(n) Borrower
fails to have or maintain a Financial Responsibility Composite Ratio of at least 1.50 to 1.00. In the event that the DOE (or any successor thereto) ceases to compute the Financial Responsibility Composite Ratio for educational institutions
generally, Borrower and Lender shall enter into negotiations to replace this clause (n) with a successor that provides similar comfort of financial stability with respect to Borrower and its Subsidiaries and Schools; or
(o) without
limitation of clause (n) above, Borrower shall fail to maintain all Educational Approvals and specialized accrediting agency approvals necessary to conduct its operations and offer its educational programs, or in order to maintain such
approvals, Borrower has to post a letter of credit, or fails to comply with any Educational Agency requirements, any of which occurrence either results in, or could reasonably be expected to have a, Material Adverse Effect, and such failure
remains uncured or such letter of credit remains outstanding for a period of thirty (30) days thereafter.
9.2. Remedies.
(a) If
any Event of Default has occurred and is continuing, Lender may, without notice, suspend the Revolving Loan Commitment with respect to additional Advances and/or the incurrence of additional Letter of Credit Obligations. If any Event of
Default has occurred and is continuing, Lender may, without notice except as otherwise expressly provided herein, increase the rate of interest applicable to the Advances and the Letter of Credit Fees to the Default Rate.
(b) If
any Event of Default has occurred and is continuing, Lender may, without notice: (i) terminate the Revolving Loan Commitment with respect to further Advances or the incurrence of further Letter of Credit Obligations; (ii) reduce the Revolving
Loan Commitment from time to time; (iii) declare all or any portion of the Obligations, including all or any portion of any Advance, to be forthwith due and payable, and require that the Letter of Credit Obligations be cash collateralized in
the manner set forth in Annex A, all without presentment, demand, protest or further notice of any kind, all of which are expressly waived by Borrower and each
other Loan Party; or (iv) exercise any rights and remedies provided to Lender under the Loan Documents or at law or equity, including all remedies provided under the Code; provided, that upon the occurrence of an Event of Default specified in Sections 9.1(h) or (i), the Revolving Loan Commitment shall be
immediately terminated and all of the Obligations, including the Advances and Letter of Credit Obligations, shall become immediately due and payable without declaration, notice or demand by any Person.
(c) At
the election of Lender, after the occurrence of an Event of Default and for so long as it continues, the Tranche Rate election will not be available to Borrower and as the Interest Periods for Tranche Rate Loans then in effect expire, such
Advances shall be converted into Base Rate Loans.
(d) During
the continuance of any Event of Default, Lender is hereby authorized by each Loan Party at any time or from time to time, with reasonably prompt subsequent written notice to Borrower (any prior or contemporaneous notice being hereby expressly
waived) to set off and to appropriate and to apply any and all (i) balances held by Lender or any of Lender's Affiliates at any of its offices for the account of any Loan Party or any of its Subsidiaries (regardless of whether such balances
are then due to such Loan Party or Subsidiary), and (ii) other property at any time held or owing by Lender or any of Lender's Affiliates to or for the credit or for the account of any Loan Party or any of its Subsidiaries, against and on
account of any of the Obligations. Each Loan Party agrees, to the fullest extent permitted by Law, that Lender and any of Lender's Affiliates may exercise its right to set off with respect to the Obligations as provided in this Section 9.2.
9.3. Application
of Proceeds.
(a) After Event of Default. Notwithstanding anything to the contrary contained in this Agreement, upon the occurrence and during the continuance of an Event of
Default, each Loan Party irrevocably waives the right to direct the application of any and all payments at any time or times thereafter received by Lender from or on behalf of Borrower or any Guarantor of all or any part of the Obligations
and any and all proceeds of Collateral received by Lender, and, as between the Loan Parties on the one hand and Lender on the other, Lender shall have the continuing and exclusive right to apply and to reapply any and all payments received
against the Obligations and any and all proceeds of Collateral received by Lender in such manner as Lender may deem advisable notwithstanding any previous application by Lender.
(b) Residuary. Any balance remaining after giving effect to the applications set forth in this Section
9.3 shall be delivered to Borrower or to whoever may be lawfully entitled to receive such balance or as a court of competent jurisdiction may direct. In carrying out any of the applications set forth in this Section 9.3, (i) amounts received shall be applied in the numerical order provided until paid in full prior to the application to the next succeeding category and (ii)
each of the Persons entitled to receive a payment or cash collateral in any particular category shall receive an amount equal to its pro rata share of amounts available to be applied pursuant thereto for such category.
9.4. Waivers by Loan Parties. Except as otherwise provided for in this Agreement or
by applicable Law, each Loan Party waives: (a) presentment, demand and protest and notice of presentment, dishonor, notice of intent to accelerate, notice of acceleration, protest, default, nonpayment, maturity, release, compromise, settlement,
extension or renewal of any or all commercial paper, accounts, contract rights, documents, instruments, chattel paper and guaranties at any time held by Lender on which any Loan Party may in any way be liable, and hereby ratifies and confirms
whatever Lender may do in this regard, (b) all rights to notice and a hearing prior to Lender's taking possession or control of, or to Lender's replevy, attachment or levy upon, the Collateral or any bond or security that might be required by
any court prior to allowing Lender to exercise any of its remedies, and (c) the benefit of all valuation, appraisal, marshaling and exemption Laws.
10.
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EXPENSES AND INDEMNITY
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10.1. Expenses. Borrower hereby agrees
to promptly pay (i) all reasonable, documented actual costs and out of pocket expenses of Lender (including the reasonable fees, costs and expenses of any counsel to, and independent appraisers and consultants retained by, Lender) in
connection with the examination, review, due diligence investigation, documentation, negotiation and closing of the transactions contemplated by the Loan Documents, in connection with the performance by Lender of its rights and remedies under
the Loan Documents and in connection with the continued administration of the Loan Documents including (A) any amendments, modifications, consents and waivers to and/or under any and all Loan Documents and (B) any periodic public record
searches conducted by or at the request of Lender (including title investigations, Uniform Commercial Code searches, fixture filing searches, judgment, pending Litigation and tax lien searches and searches of applicable corporate, limited
liability company, partnership and related records concerning the continued existence, organization and good standing of certain Persons), (ii) without limitation of the preceding clause (i), all reasonable, documented actual costs and out of
pocket expenses of Lender (including the reasonable fees, costs and expenses of any counsel to, and independent appraisers and consultants retained by, Lender) in connection with (A) the creation, perfection and maintenance of Liens pursuant
to the Loan Documents and (B) protecting, storing, insuring, handling, maintaining or selling any Collateral and (iii) without limitation of the preceding clause (i), all actual costs and out of pocket expenses incurred by Lender (including
the reasonable fees, costs and expenses of any counsel to, and independent appraisers and consultants retained by, Lender) in connection with any Litigation, dispute, suit or proceeding relating to any Loan Document and in connection with any
workout, collection, bankruptcy, insolvency, post-judgment or other enforcement proceedings under any and all Loan Documents.
10.2. Indemnity. Borrower hereby
agrees, on behalf of itself and each other Loan Party, to indemnify, pay and hold harmless Lender and the Affiliates, officers, directors, employees, trustees, agents, investment advisors, collateral managers, servicers, and counsel of Lender
(collectively called the "Indemnitees") from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, costs,
expenses and disbursements of any kind or nature whatsoever (including the reasonable fees and disbursements of counsel for such Indemnitee) actually incurred in connection with any investigative, response, remedial, administrative or judicial
matter or proceeding, whether or not such Indemnitee shall be designated a party thereto and including any such proceeding initiated by or on behalf of a Loan Party or any Affiliate thereof, and the reasonable expenses of investigation by
engineers, environmental consultants and similar technical personnel and any commission, fee or compensation claimed by any broker (other than any broker retained by Lender) asserting any right to payment for the transactions contemplated
hereby, which may be imposed on, incurred by or asserted against such Indemnitee as a result of or in connection with the transactions contemplated hereby or by the other Loan Documents (including (i) (A) as a direct or indirect result of the
presence on or under, or escape, seepage, leakage, spillage, discharge, emission or release from, any property now or previously owned, leased or operated by a Loan Party or any other Person of any Hazardous Materials or any Hazardous Materials
Contamination, (B) arising out of or relating to the offsite disposal of any materials generated or present on any such property, or (C) arising out of or resulting from the environmental condition of any such property or the applicability of
any governmental requirements relating to Hazardous Materials, whether or not occasioned wholly or in part by any condition, accident or event caused by any act or omission of any Loan Party, and (ii) proposed and actual extensions of credit
under this Agreement) and the use or intended use of the proceeds of the Advances and Letters of Credit, except that the Loan Parties shall not have any obligation under this Section to an Indemnitee with respect to any liability resulting
solely from the gross negligence or willful misconduct of such Indemnitee, as determined by a final non-appealable judgment of a court of competent jurisdiction. To the extent that the undertaking set forth in the immediately preceding sentence
may be unenforceable, Borrower agrees, and agrees to cause the other Loan Parties, to contribute the maximum portion which it is permitted to pay and satisfy under applicable Law to the payment and satisfaction of all such indemnified
liabilities incurred by the Indemnitees or any of them. NOTICE IS HEREBY GIVEN THAT THIS AGREEMENT CONTAINS INDEMNIFICATION PROVISIONS IN THIS SECTION 10.2 THAT APPLY
TO, AND BORROWER AND EACH OTHER LOAN PARTY HEREBY ACKNOWLEDGES AND AGREES THAT THE FOREGOING INDEMNITY SHALL BE APPLICABLE TO, ANY LOSSES, DAMAGES AND LIABILITIES THAT HAVE RESULTED FROM OR ARE ALLEGED TO HAVE RESULTED FROM THE ACTIVE OR
PASSIVE OR THE SOLE, JOINT OR CONCURRENT ORDINARY NEGLIGENCE OF LENDER OR ANY OTHER INDEMNITEE UNDER THIS SECTION 10.2.
11.1. Survival. All agreements,
representations and warranties made herein and in every other Loan Document shall survive the execution and delivery of this Agreement and the other Loan Documents. The provisions of Sections 2.5(f), 2.9, 2.10, 10, and 11 shall survive the payment of the Obligations and any termination of this Agreement.
11.2. No Waivers. No failure or delay
by Lender in exercising any right, power or privilege under any Loan Document shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right,
power or privilege. The rights and remedies herein and therein provided shall be cumulative and not exclusive of any rights or remedies provided by Law. Any reference in any Loan Document to the "continuing" nature of any Event of Default shall
not be construed as establishing or otherwise indicating that Borrower or any other Loan Party has the independent right to cure any such Event of Default, but is rather presented merely for convenience should such Event of Default be waived in
accordance with the terms of the applicable Loan Documents.
11.3. Notices.
(a) All
notices, requests and other communications to any party hereunder shall be in writing (including prepaid overnight courier, e-mail, electronic submissions or similar writing, but not facsimile transmission) and shall be given to such party at
its address or e-mail address set forth on the signature pages hereof or at such other address or e-mail address as such party may hereafter specify for the purpose by notice to Lender and Borrower; provided, that notices, requests or other communications shall be permitted by e-mail or other electronic submissions only in accordance with the provisions of Section 11.3(b). Each such notice, request or other communication shall be effective (i) if given by e-mail or other electronic submissions, as set forth in Section 11.3(c) or (ii) if given by mail, prepaid overnight courier or any other means, when received at the applicable address specified by this Section. Notwithstanding anything to the
contrary herein, and for the avoidance of any doubt, notices, requests and other communications delivered by facsimile transmission do not satisfy the requirements of this Section
11.3.
(b) Notices
and other communications to the parties hereto may be delivered or furnished by electronic communication (including e-mail and Internet or intranet websites); provided,
that (i) the foregoing shall not apply to notices sent directly to any party hereto if such party has notified Lender that it has elected not to receive notices by electronic communication (which election may be limited to particular
notices) and (ii) any Notice of Borrowing, Notice of Conversion or any notices regarding request for advances hereunder shall be delivered or furnished by Borrower by electronic communication in accordance with all procedures established by
or otherwise acceptable to Lender from time to time in its sole discretion.
(c) Unless Lender otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender's receipt of an
acknowledgment from the intended recipient (such as by the "return receipt requested" function, as available, return e-mail or other written acknowledgment), and (ii) notices or communications posted to an Internet or intranet website shall
be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (i) of notification that such notice or communication is available and identifying the website address therefor; provided, that if any such notice or other communication is not sent or posted during normal business hours, such notice or communication shall be
deemed to have been sent at the opening of business on the next Business Day.
11.4. Severability. In case any
provision of or obligation under this Agreement or any other Loan Document shall be invalid, illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining provisions or obligations, or of such
provision or obligation in any other jurisdiction, shall not in any way be affected or impaired thereby.
11.5. Amendments and Waivers. No
provision of this Agreement or any other Loan Document may be amended, waived or otherwise modified unless such amendment, waiver or other modification is in writing and is signed or otherwise approved by Borrower, any other Loan Parties party
to such Loan Document, and Lender. Notwithstanding the foregoing, Borrower, on behalf of itself and each of the other Loan Parties, hereby authorize Lender to (i) correct any patent (or scrivener's) errors or other erroneous content in the Loan
Documents, (ii) date any dates and fill in any blanks or other missing content in any of the Loan Documents, and (iii) replace or substitute pages, as applicable, in each Loan Document that were changed to correct such errors or fill in such
dates, missing content or blanks (each a "Corrected Document"), in each case, without the need for a written amendment signed by the parties; provided that Lender shall send a copy of any such Corrected Document to Borrower (which copy may be given by electronic mail). Without limiting the generality of any of the
foregoing, Borrower further covenants that it shall, and shall cause each of the other Loan Parties to, execute, acknowledge and deliver, or cause to be executed, acknowledged or delivered (or, as applicable, re-execute, re-acknowledge and
re-deliver), (A) each agreement, instrument or other document that was incorrectly drafted and signed at the Closing Date and (B) all such further assurances and other agreements, instruments or documents, and take or cause to be taken all such
other actions, as Lender shall request from time to time to permit Lender to evidence or give effect to the express terms and conditions of this Agreement and the other Loan Documents and any of the transactions contemplated hereby, including
to perfect (or continue the perfection of) and protect Lender's Liens upon the Collateral, and shall take such other action as may be requested by Lender to give effect to or carry out the intent and purposes of this Agreement.
11.6. Assignments;
Participations.
(a) Assignments. Without obtaining any consent of any Loan Party, Lender (and any subsequent assignee of Lender) may (i) transfer and assign all or any of its
rights or delegate any or all of its duties under this Agreement and/or the other Loan Documents, or (ii) grant participations in the Advances to Participants in accordance with Section
11.6(b). Subject to the confidentiality provisions of Section 11.8, Lender may, without obtaining any consent of any Loan Party, disclose to all
prospective and actual assignees and Participants all financial, business and other information about the Loan Parties which Lender may possess at any time. For the avoidance of doubt, Lender may, without obtaining any consent of any Loan
Party, at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided, that no such pledge or assignment shall release Lender from any of its obligations hereunder or substitute any such pledgee or assignee for
Lender as a party hereto.
(b) Participations. Lender may at any time, without the consent of, or notice to,
Borrower, sell to one or more Persons participating interests in its Advances, commitments or other interests hereunder (any such Person, a "Participant"). In the
event of a sale by Lender of a participating interest to a Participant, (i) Lender's obligations hereunder shall remain unchanged for all purposes, (ii) Borrower shall continue to deal solely and directly with Lender in connection with
Lender's rights and obligations hereunder, and (iii) all amounts payable by Borrower shall be determined as if Lender had not sold such participation and shall be paid directly to Lender, provided, however, notwithstanding the foregoing, Borrower hereby agrees that each Participant shall be entitled to the benefits of Section
2.10 and the requirements under Section 2.9(c) (it being understood that the documentation required under Section 2.9(c) shall be delivered to Lender) to the same extent as if it were Lender; provided, further, a
Participant shall not be entitled to receive any greater payment under Section 2.10, with respect to any participation, than Lender would have been entitled to
receive, except to the extent such entitlement to receive a greater payment results from a change in Law, regulation ruling, treaty or other action or doctrine of a Governmental Authority that occurs after the date the Participant acquired
the applicable participation. Borrower acknowledges that Participants have and will have certain rights under their respective participation agreements with Lender that may, subject to the terms of the participation agreements, require Lender
to obtain the consent (collectively, "Participant Consents") of some or all of the Participants before Lender takes or refrains from taking certain actions (other
than as expressly required by the Loan Documents) or grants waivers, consents or approvals in respect of the Advances, the Loan Documents or the Collateral. None of the Participants, however, will have Participant Consent rights which are
greater than those rights and remedies Lender has under the Loan Documents. In addition, from time to time, Lender may request instructions from the Participants in respect of the actions, waivers, consents or approvals which by the terms of
any of the Loan Documents Lender is permitted or required to take or to grant or to not take or grant ("Participant Instructions"). If the Participant Consents are,
pursuant to the terms of the respective participation agreements, required or Participant Instructions are requested, Lender will, notwithstanding anything to the contrary in this Section 11.6(b), (A) be absolutely empowered to take or refrain from taking any action (other than as expressly required by the Loan Documents) or withhold any waiver, consent or approval, and (B) not be under any
liability whatsoever to any Person, including Borrower and any Participant, from taking or refraining from taking any action or withholding any waiver, consent or approval under any of the Loan Documents until it has received the requisite
Participant Consents or, as applicable, the Participant Instructions. Borrower agrees that if amounts outstanding under this Agreement are due and payable (as a result of acceleration or otherwise), each Participant shall be deemed to have
the right of set-off in respect of its participating interest in amounts owing under this Agreement and with respect to any Letter of Credit to the same extent as if the amount of its participating interest were owing directly to it as Lender
under this Agreement. If Lender sells a participation to a Participant as provided under this Section 11.6(b), it shall, acting solely for this purpose as a
non-fiduciary agent of Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant's interest in the Advances or other obligations under the
Loan Documents (the "Participant Register"); provided, that Lender shall
not have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant's interest in any commitments, loans, letters of credit or its other
obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the
United States Treasury Regulations. The entries in the Participant Register shall be conclusive and binding absent manifest error, and Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such
participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, Lender shall have no responsibility for maintaining a Participant Register.
(c) Loan Party Assignments. No Loan
Party may assign, delegate or otherwise transfer any of its rights or other obligations hereunder or under any other Loan Document without the prior written consent of Lender.
11.7. Headings. Headings and captions
used in the Loan Documents (including the Exhibits, Schedules and Annexes hereto and thereto) are included for convenience of reference only and shall not be given any substantive effect.
11.8. Confidentiality. Lender shall
hold all non-public information regarding the Loan Parties and their respective businesses identified as such by Borrower and obtained by Lender by a Loan Party pursuant to the requirements hereof in accordance with Lender's customary
procedures for handling information of such nature, except that disclosure of such information may be made (i) to Lender's Affiliates and the partners, directors, officers, employees, agents, trustees, administrators, managers, auditors,
professional consultants, advisors and representatives of Lender and of Lender's Affiliates (collectively, the "Related Parties" of Lender) (it being understood
that the Persons to whom such disclosure is made will be informed of the confidential nature of such information and instructed to keep such information confidential), (ii) to rating agencies, insurance industry associations and portfolio
management services, (iii) to prospective transferees or purchasers of or participants in any interest in the Advances and, as applicable, the Loan Documents, to prospective contractual counterparties (or the professional advisors thereto) in
Rate Contracts permitted hereby and to prospective providers of Bank Products, provided, that any such Persons shall have agreed to be bound by the
provisions of this Section 11.8, (iv) to the extent requested by any regulatory authority purporting to have jurisdiction over such Person or its Related Parties,
including any self-regulatory authority, (v) to any other Party hereto, (vi) in connection with the exercise of any remedies hereunder or under any other Loan Document or any action or proceeding relating to this Agreement or any other Loan
Document or the enforcement of rights hereunder or thereunder, (vii) as required by Law, subpoena, judicial order or similar order and in connection with any Litigation, (viii) as may be required in connection with the examination, audit or
similar investigation of such Person, (ix) with the consent of Borrower, (x) to the extent such information (A) becomes publicly available other than as a result of a breach of this Section, or (B) becomes available to Lender or any of its
Related Parties on a nonconfidential basis from a source other than the Loan Parties, and (xi) to a Person that is a trustee, investment advisor, collateral manager, servicer, noteholder or secured party in a Securitization (as hereinafter
defined) in connection with the administration, servicing and reporting on the assets serving as collateral for such Securitization. For the purposes of this Section, "Securitization"
shall mean a public or private offering by Lender or any of its Affiliates or their respective successors and assigns, of Stock or debt securities which represent an interest in, or which are collateralized, in whole or in part, by the
Advances. Confidential information shall include only such information identified as such at the time provided to Lender and shall not include information that either (A) is in the public domain, or becomes part of the public domain after
disclosure to such Person through no fault of such Person, or (B) is disclosed to such Person by a Person other than a Loan Party, provided, Lender
does not have actual knowledge that such Person is prohibited from disclosing such information. The obligations of Lender under this Section 11.8 shall supersede
and replace the obligations of Lender under any confidentiality agreement in respect of this financing executed and delivered by Lender prior to the date hereof.
11.9. Waiver of Consequential and Other Damages.
To the fullest extent permitted by applicable Law, no Loan Party shall assert, and each Loan Party hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed
to direct or actual damages) arising out of, in connection with, or as a result of this Agreement, any other Loan Document or any agreement or instrument contemplated hereby or thereby, the transactions contemplated hereby or thereby, any
Advance or Letter of Credit or the use of the proceeds thereof. No Indemnitee shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications,
electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby.
11.10. Reinstatement. Notwithstanding any
prior revocation, termination, surrender, or discharge of this Agreement in whole or in part, the effectiveness of this Agreement shall automatically continue or be reinstated in the event that any payment, proceeds received or credit given by
Bank in respect of the Obligations is returned, disgorged, or rescinded under any applicable state or federal law, including, without limitation, laws pertaining to bankruptcy or insolvency, in which case, this Agreement shall be enforceable
against Borrower as if the returned, disgorged, or rescinded payment, proceeds or credit had not been received or given by Bank, and whether or not Bank relied upon this payment, proceeds or credit or changed its position as a consequence of
it. In the event of continuation or reinstatement of this Agreement, Borrower agrees upon demand by Bank to execute and deliver to Bank those documents which Bank determines are appropriate to further evidence (in the public records or
otherwise) this continuation or reinstatement, although the failure of Borrower to do so shall not affect in any way such continuation or reinstatement.
11.11. Marshaling; Payments Set Aside.
Lender shall not be under any obligation to marshal any assets in payment of any or all of the Obligations. To the extent that any Loan Party makes any payment or Lender enforces its Liens or Lender exercises its right of set-off, and such
payment or the proceeds of such enforcement or set-off is subsequently invalidated, declared to be fraudulent or preferential, set aside, or required to be repaid by anyone, then to the extent of such recovery, the Obligations or part thereof
originally intended to be satisfied, and all Liens, rights and remedies therefore, shall be revived and continued in full force and effect as if such payment had not been made or such enforcement or set-off had not occurred.
11.12. GOVERNING LAW; SUBMISSION TO JURISDICTION.THIS
AGREEMENT, EACH NOTE AND EACH OTHER LOAN DOCUMENT, AND ALL MATTERS RELATING HERETO OR THERETO OR ARISING THEREFROM (WHETHER SOUNDING IN CONTRACT LAW, TORT LAW OR OTHERWISE), SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES. EACH LOAN PARTY HEREBY CONSENTS TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY, AND OF THE UNITED STATES
DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF AND IRREVOCABLY AGREES THAT, SUBJECT TO LENDER'S ELECTION, ALL ACTIONS OR PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE OTHER LOAN
DOCUMENTS SHALL BE LITIGATED IN SUCH COURTS. EACH LOAN PARTY EXPRESSLY SUBMITS AND CONSENTS TO THE JURISDICTION OF THE AFORESAID COURTS AND WAIVES ANY DEFENSE OF FORUM NON CONVENIENS. EACH LOAN PARTY HEREBY WAIVES PERSONAL SERVICE OF ANY AND
ALL PROCESS AND AGREES THAT ALL SUCH SERVICE OF PROCESS MAY BE MADE UPON EACH SUCH LOAN PARTY BY CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED, ADDRESSED TO SUCH LOAN PARTY AT THE ADDRESS SET FORTH IN THIS AGREEMENT AND SERVICE SO MADE
SHALL BE COMPLETE 10 DAYS AFTER THE SAME HAS BEEN POSTED.
11.13. WAIVER OF JURY TRIAL. TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH LOAN PARTY AND LENDER HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THE LOAN DOCUMENTS OR THE TRANSACTIONS
CONTEMPLATED THEREBY AND AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY. EACH LOAN PARTY AND LENDER ACKNOWLEDGE THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT
EACH HAS RELIED ON THE WAIVER IN ENTERING INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, AND THAT EACH WILL CONTINUE TO RELY ON THIS WAIVER IN THEIR RELATED FUTURE DEALINGS. EACH LOAN PARTY AND LENDER WARRANT AND REPRESENT THAT EACH HAS HAD
THE OPPORTUNITY OF REVIEWING THIS JURY WAIVER WITH LEGAL COUNSEL, AND THAT EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS.
11.14. Publication; Advertisement.
(a) Publication. No Loan Party will directly or indirectly publish, disclose or otherwise use in any public disclosure, advertising material, promotional material,
press release or interview, any reference to the name, logo or any trademark of Fifth Third or any of its Affiliates or any reference to this Agreement or the financing evidenced hereby, in any case except (i) as required by Law, (including
in any Form 8-K or other public SEC filings of Borrower), subpoena or judicial or similar order, in which case the applicable Loan Party shall give Lender prior written notice of such publication or other disclosure or (ii) with Fifth Third's
prior written consent.
(b) Advertisement. Each Loan Party hereby authorizes Lender to publish the name of such Loan Party, the existence of the financing arrangements referenced under
this Agreement, the primary purpose and/or structure of those arrangements, the amount of credit extended under each facility, the title and role of each party to this Agreement, and the total amount of the financing evidenced hereby in any
"tombstone", comparable advertisement or press release which Lender elects to submit for publication. In addition, each Loan Party agrees that Lender may provide lending industry trade organizations with information necessary and customary
for inclusion in league table measurements after the Closing Date. With respect to any of the foregoing, Lender shall provide Borrower with an opportunity to review and confer with Lender regarding the contents of any such tombstone,
advertisement or information, as applicable, prior to its submission for publication and, following such review period, Lender may, from time to time, publish such information in any media form desired by Lender, until such time that Borrower
shall have requested Lender cease any such further publication.
11.15. Counterparts; Integration. This
Agreement and the other Loan Documents may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. Signatures by facsimile or other
electronic transmission (including "pdf' or "tif' format) shall bind the parties hereto. This Agreement and the other Loan Documents constitute the entire agreement and understanding among the parties hereto and supersede any and all prior
agreements and understandings, oral or written, relating to the subject matter hereof.
11.16. No Strict Construction. The
parties hereto have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties hereto
and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provisions of this Agreement.
11.17. USA PATRIOT Act Notification.
Lender hereby notifies each Loan Party that pursuant to the requirements of the USA PATRIOT Act, it is required to obtain, verify and record certain information and documentation that identifies such Loan Party, which information includes the
name and address of each Loan Party and such other information that will allow Lender to identify such Loan Party in accordance with the USA PATRIOT Act. The Loan Parties agree to, promptly following a request by Lender, provide all such other
documentation and information that Lender requests in order to comply with its ongoing obligations under applicable "know your customer" and anti-money laundering rules and regulations, including the USA PATRIOT Act, and the Beneficial
Ownership Regulation.
11.18. Acknowledgement and Consent to Bail-In of
Affected Financial Institutions. Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of
any Affected Financial Institution arising under any Loan Document may be subject to the write-down and conversion powers of the applicable Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
(a) the
application of any Write-Down and Conversion Powers by the applicable Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an Affected Financial Institution; and
(b) the
effects of any Bail-In Action on any such liability, including, if applicable:
(i) a reduction in full or in part or cancellation of any such liability;
(ii) a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such Affected Financial Institution, its parent entity, or a bridge institution that may be issued to it or otherwise
conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document; or
(iii) the variation of the terms of such liability in connection with the exercise of the write-down and conversion powers of any applicable Resolution Authority.
11.19. Termination. This Agreement shall
remain in effect from the Closing Date through and including the Termination Date. At the request of the Borrower, upon the Termination Date the Lender shall, at the sole cost and expense of the Borrower release any Lien granted to or held by
the Lender under any Loan Document, without recourse upon or warranty by the Lender. No termination of this Agreement shall affect the rights and obligations of the parties hereto arising prior to such termination or in respect of any provision
of this Agreement which survives such termination.
[Signature pages follow]
IN WITNESS WHEREOF, this Agreement has been duly executed as of the date first written above.
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BORROWER:
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LINCOLN EDUCATIONAL SERVICES CORPORATION
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By:
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/s/ Scott M. Shaw |
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Name: Scott M. Shaw
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Title: Chief Executive Officer and President
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Borrower's Account:
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Bank Name:
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Fifth Third Bank, National Association |
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ABA No.: |
042000314
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Account No.:
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XXXXXX3733
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Account Name:
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Lincoln Educational Services Corporation
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Borrower's Address for Notices:
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14 Sylvan Way, Suite A
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Parsippany, NJ 07054
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Attn: Brian K. Meyers
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Chief Financial Officer
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Tel: 973-766-9086
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Fax: 973-766-9890
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Email: BMeyers@lincolntech.edu
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With a copy to (which shall not constitute notice):
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Michele Vaillant
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McCarter & English, LLP
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Four Gateway Center
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100 Mulberry St.
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Newark, NJ 07102
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Tel.: 973-639-2011
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Fax: 973-297-3826
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Email: MVaillant@McCarter.com
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Lincoln Educational Services Corporation
Credit Agreement
Signature Page
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LENDER:
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FIFTH THIRD BANK, NATIONAL ASSOCIATION
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By: /s/ Taylor Beringer
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Name: Taylor Beringer
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Title: Senior Vice President
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Lender's Address for Notices:
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201 North Tryon Street
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16th Floor
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Charlotte, NC 28202
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Attn: Taylor Beringer
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Email: Taylor.Beringer@53.com
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Lincoln Educational Services Corporation
Credit Agreement
Signature Page