<PAGE> 1
EXHIBIT 10.5.8
EIGHTH AMENDMENT TO CREDIT AGREEMENT
AND WAIVER
THIS EIGHTH AMENDMENT TO CREDIT AGREEMENT AND WAIVER (this "Amendment")
is made and entered into as of the 11th day of September, 2000, by and between
EDUTREK INTERNATIONAL, INC., a Georgia corporation ("Borrower"), the undersigned
Guarantors party hereto (the "Guarantors"; Borrower and the Guarantors are
individually a "Credit Party" and collectively the "Credit Parties"), and FIRST
UNION NATIONAL BANK ("Lender").
WITNESSETH:
WHEREAS, Borrower and Lender are a party to that certain Credit
Agreement, dated as of March 25, 1999, as amended by a First Amendment to Credit
Agreement dated May 27, 1999, by a Second Amendment to Credit Agreement and
Waiver dated August 16, 1999, by a Third Amendment to Credit Agreement dated
August 27, 1999, by a Fourth Amendment to Credit Agreement and Waiver dated
November 11, 1999, by a Fifth Amendment to Credit Agreement and Waiver dated
December 23, 1999, by a Sixth Amendment to Credit Agreement dated as of February
9, 2000, and by a Seventh Amendment to Credit Agreement and Waiver dated as of
May 30, 2000 (as amended, the "Credit Agreement"), pursuant to which Lender made
available to Borrower a $10,000,000 revolving line of credit pursuant to the
Facility A Commitment and a line of credit providing a maximum availability of
$4,350,000 pursuant to the Facility B Commitment; and
WHEREAS, Borrower is in violation of certain financial covenants and
seeks a waiver of such violations and an extension of the maturity date of the
Facility B Loans;
WHEREAS, Borrower has requested that Lender enter into this Amendment
to waive such financial covenants and to extend the maturity date of the
Facility B Loans, and has represented to the Lender that it will cause a $2.5
million cash equity infusion to be made to the Borrower on or before September
15, 2000; and
WHEREAS, Lender is willing to agree to such amendment and waiver upon
the terms set forth herein;
NOW, THEREFORE, for and in consideration of the foregoing premises, the
mutual promises, covenants and agreements contained herein, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. DEFINITIONS. All capitalized terms used herein and not
expressly defined herein shall have the same respective meanings given to such
terms in the Credit Agreement.
2. AMENDMENTS. Subject to the conditions contained herein, the
Credit Agreement is hereby amended as follows:
2.1. NEW DEFINITIONS. Section 1.1 of the Credit Agreement
is hereby amended by adding thereto in appropriate alphabetical order
the following new definitions:
"Eighth Amendment" shall mean that certain Eighth
Amendment to Credit Agreement and Waiver, dated as of
September 11, 2000, between Borrower and Lender.
"Eighth Amendment Effective Date" shall mean that
date on which all of the conditions precedent set forth in
Section 5 of the Eighth Amendment have been satisfied and the
Eighth Amendment has become effective.
2.2. EXISTING DEFINITIONS. Section 1.1 of the Credit
Agreement is hereby further amended by deleting the definition of
"Facility B Termination Date" and by substituting in lieu thereof the
following new definition of such term:
"Facility B Termination Date" means the earliest of
(a) November 30, 2000, (b) the date of termination by the
Borrower pursuant to Section 2.5(a), (c)
1
<PAGE> 2
the Termination Date, and (d) the date of termination by the
Lender pursuant to Section 11.2(a).
3. WAIVER. Effective on the Eighth Amendment Effective Date,
Lender hereby waives the Default or Event of Default created by the Borrower's
failure to comply with the following financial covenants for the period from
July 31, 2000 to and including November 30, 2000:
(a) Net Worth covenant set forth in Section 9.1 of the
Credit Agreement;
(b) Ratio of Actual to Budgeted Revenues covenant set
forth in Section 9.5 of the Credit Agreement, and
(c) Accounts Payable covenant set forth in Section 9.8 of
the Credit Agreement.
4. ARRANGEMENT FEE. In consideration of Lender entering into this
Amendment, Borrower hereby agrees to pay, in addition to the arrangement fees
set forth in the Seventh Amendment, an additional fixed arrangement fee equal to
$250,000 payable in cash on the Facility B Termination Date; provided, however,
Lender agrees to waive such fee if either (a) the Obligations are paid in full
on or before November 30, 2000 or (b) the Obligations are refinanced in full on
or before November 30, 2000 pursuant to a credit agreement between the Lender
and a buyer of the educational businesses owned by Borrower and the Guarantors
that is acceptable to Lender in its sole discretion. Borrower and each Guarantor
hereby acknowledges and agrees that such fee has been fully earned by Lender, is
non-refundable once paid, and is irrevocably payable on the due date thereof
without offset, deduction or counterclaim.
5. CONDITIONS PRECEDENT. The amendments contained herein shall
not become effective unless and until the Lender shall have received each of the
following instruments, documents and agreements, in each case in form and
content acceptable to Lender:
(a) this Amendment, duly executed and delivered by the
Borrower and each Guarantor;
(b) Borrower shall cause a $2.5 million cash equity
infusion to be made to Borrower on or before September 15, 2000;
(c) a certificate from the chief executive officer or
chief financial officer of the Borrower, in form and substance
satisfactory to the Lender, to the effect that all representations and
warranties of the Borrower contained in the Credit Agreement, this
Amendment and the other Loan Documents are true, correct and complete;
that giving effect to this Amendment the Borrower is not in violation
of any of the covenants contained in the Credit Agreement and the other
Loan Documents; and that, after giving effect to this Amendment, no
Default or Event of Default has occurred and is continuing;
(d) a certificate of the secretary or assistant secretary
of each Credit Party certifying that (i) the certificate or articles of
incorporation and by-laws of such Credit Party, or the comparable
organizational documents of such Credit Party, have not been amended,
modified or supplemented since the Closing Date and (ii) attached
thereto is a true and complete copy of resolutions duly adopted by the
Board of Directors of such Credit Party authorizing the execution,
delivery and performance of this Amendment and the other instruments,
documents and agreements executed and delivered pursuant hereto or in
connection herewith to which it is a party (collectively, the
"Amendment Documents"), and ratifying the execution and delivery of
this Amendment; and as to the incumbency and genuineness of the
signature of each officer of such Credit Party executing the Amendment
Documents to which it is a party;
(e) Lender's attorneys' fees and expenses incurred in
connection with this Amendment; and
(f) such other instruments, documents and agreements as
the Lender may reasonably request.
6. REPRESENTATIONS AND WARRANTIES; NO DEFAULT. Each Credit Party
hereby jointly and severally represent and warrant to the Lender that (a) all of
Credit Parties' representations and warranties contained in the Credit
Agreement, the other Loan Documents and this Amendment are true and correct on
and as of the date of this Amendment (or, if any such representation or warranty
is expressly stated to have been made as of a specific date, as of such specific
date) except, in the case of the representation set forth in Section 6.1(q) of
the Credit Agreement, as reflected in the Borrower's interim financial
statements for the period ending June 30, 2000; (b) no Default or Event
2
<PAGE> 3
of Default has occurred and is continuing as of such date under any Loan
Document, except any Default or Event of Default waived under Section 3 of this
Agreement; (c) each Credit Party has the power and authority to enter into this
Amendment and the other Amendment Documents to which it is a party and to
perform all of its obligations hereunder and thereunder; (d) the execution,
delivery and performance of this Amendment and the Amendment Documents have been
duly authorized by all necessary corporate or partnership action on the part of
each Credit Party; (e) this Amendment and the Amendment Documents are the legal,
valid and binding obligations of the Credit Parties party thereto, enforceable
in accordance with their respective terms, except as such enforcement may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar state
or federal debtor relief laws from time to time in effect which affect the
enforcement of creditors' rights in general and the availability of equitable
remedies; and (f) the execution and delivery of this Amendment and the Amendment
Documents and performance thereof by the Credit Parties do not and will not
violate the Certificate or Articles of Incorporation, By-laws or other
organizational documents of any Credit Party and do not and will not violate or
conflict with any law, order, writ, injunction, or decree of any court,
administrative agency or other governmental authority applicable to any Credit
Party or its properties.
7. REAFFIRMATION OF LOAN DOCUMENTS. Each Credit Party hereby
reaffirms its obligations under the Loan Documents, and acknowledges and agrees
that each of the Loan Documents to which such Credit Party is a party, and the
obligations of such Credit Party thereunder, remain in full force and effect,
without release, diminution or impairment, notwithstanding the execution and
delivery of this Amendment or of any prior amendment to the Credit Agreement or
any other Loan Document.
8. REFERENCES. All references in the Credit Agreement and the
Loan Documents to the Credit Agreement shall hereafter be deemed to be
references to the Credit Agreement as amended hereby and as the same may
hereafter be amended from time to time.
9. LIMITATION OF AGREEMENT. Except as especially set forth
herein, this Amendment shall not be deemed to waive, amend or modify any term or
condition of the Credit Agreement, each of which is hereby ratified and
reaffirmed and which shall remain in full force and effect, nor to serve as a
consent to any matter prohibited by the terms and conditions thereof.
10. COUNTERPARTS. This Amendment may be executed in any number of
counterparts, and any party hereto may execute any counterpart, each of which,
when executed and delivered, will be deemed to be an original and all of which,
taken together will be deemed to be but one and the same agreement. Any
signature delivered by a party by facsimile transmission shall be deemed to be
an original signature hereto.
11. FURTHER ASSURANCES. Borrower agrees to take such further
action as the Lender shall reasonably request in connection herewith to evidence
the amendments herein contained to the Credit Agreement.
12. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
and inure to the benefit of the successors and permitted assigns of the parties
hereto.
13. GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Georgia, without regard
to principles of conflicts of law.
14. NO CLAIM. Each Credit Party hereby represents, warrants,
acknowledges and agrees to and with the Lender that as of the date hereof (a)
such Credit Party neither holds nor claims any right of action, claim, cause of
action or damages, either at law or in equity, against the Lender, its officers,
directors, agents, employees or Affiliates, or any of them, which arises from,
may arise from, allegedly arise from, are based upon or are related in any
manner whatsoever to the Credit Agreement and the Loan Documents or which are
based upon acts or omissions of the Lender, any such officer, director, agent,
employee or Affiliate of Lender, or any of them, in connection therewith and (b)
the Obligations are absolutely owed to the Lender, without offset, deduction or
counterclaim.
[Remainder of page intentionally left blank]
3
<PAGE> 4
IN WITNESS WHEREOF, the parties hereto have executed this Amendment
under seal as of the date first written above.
CREDIT PARTIES:
BORROWER:
EDUTREK INTERNATIONAL, INC.
By: /s/ R. Steven Bostic
--------------------------------------------
R. Steven Bostic
Chairman of the Board and
Chief Executive Officer
Attest: /s/ David J. Horn
----------------------------------------
David J. Horn
Secretary and Chief Financial Officer
[CORPORATE SEAL]
(signatures continued on next page)
(signatures continued from previous page)
GUARANTORS:
[CORPORATE SEAL] EDUTREK SYSTEMS, INC.
By: /s/ R. Steven Bostic
--------------------------------------------
R. Steven Bostic
Chief Executive Officer
[CORPORATE SEAL] AMERICAN INTERCONTINENTAL
UNIVERSITY, INC.
By: /s/ R. Steven Bostic
--------------------------------------------
R. Steven Bostic
Chief Executive Officer
4
<PAGE> 5
[CORPORATE SEAL] AMERICAN INTERCONTINENTAL UNIVERSITY-LONDON,
LTD. U.S.
By: /s/ R. Steven Bostic
--------------------------------------------
R. Steven Bostic
Chief Executive Officer
[CORPORATE SEAL] AMERICAN EUROPEAN MIDDLE EAST CORPORATION, LLC
By: American InterContinental University-London,
LTD. U.S.
By: /s/ R. Steven Bostic
---------------------------------------------
R. Steven Bostic
Chief Executive Officer
(signatures continued on next page)
5
<PAGE> 6
(signatures continued from previous page)
LENDER:
FIRST UNION NATIONAL BANK
By: /s/ Frank Darrow
------------------------------------------
Frank Darrow
Vice President
6
