SIXTH MODIFICATION AGREEMENT
BY THIS SIXTH MODIFICATION AGREEMENT (the "Agreement"), made
and entered into as of the 2nd day of March, 2000, WELLS FARGO
BANK, NATIONAL ASSOCIATION, a national banking association, whose
address is 100 West Washington, Post Office Box 29742, MAC #4101-
251, Phoenix, Arizona 85038-9742 (hereinafter called "Lender"), and
APOLLO GROUP, INC., an Arizona corporation, whose address is 4615
East Elwood Street, Suite 400, Phoenix, Arizona 85040 (hereinafter
called "Company"), in consideration of the mutual covenants herein
contained and other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, hereby confirm and
agree as follows:
SECTION 1. RECITALS.
1.1 Company and Lender entered into a Loan Agreement dated
November 17, 1997 (as amended, the "Loan Agreement"), which
provided for, among other things, a revolving line of credit (the
"RLC") in the amount of $10,000,000.00, evidenced by a Revolving
Promissory Note dated November 17, 1997, executed by the Company
(the "RLC Note"), all upon the terms and conditions contained
therein. The Loan Agreement was previously modified by that
Modification Agreement dated as of February 5, 1998, that Second
Modification Agreement dated as of August 13, 1998, that Third
Modification Agreement dated as of April 30, 1999, that Fourth
Modification Agreement dated as of August 3, 1999 and that Fifth
Modification Agreement dated as of November 1, 1999. All undefined
capitalized terms used herein shall have the meaning given them in
the Loan Agreement.
1.2 As of the date hereof, prior to the effect of the
modifications contained herein, the outstanding principal balance
of the RLC is $ 0.00. Lender has issued for the account of the
Company two (2) standby letters of credit in the amount of
$17,860.00 and $2,742,476.00, that expire on March 31, 2000.
1.3 Company and Lender desire to modify the Loan Agreement
as set forth herein.
SECTION 2. LOAN AGREEMENT.
The modifications provided in this Section 2 shall be
effective as of March 2, 2000 as though entered into as of such
date.
2.1 The following definition in Section 2.1 of the Loan
Agreement is hereby amended to read as follows:
"Maturity Date" means February 1, 2002.
2.2 Section 8.6 of the Loan Agreement is hereby amended to
read as follows:
Section 8.6 Payment of Dividends. Declare or pay any
cash dividends or distribution either in cash, stock or any
other property on Borrower's stock now or hereafter
outstanding; nor redeem, retire, repurchase or otherwise
acquire any shares of any class of Borrower's stock now or
hereafter outstanding. Notwithstanding the foregoing,
Borrower shall be permitted (i) to pay intercompany dividends,
provided said dividend(s) has (have) no effect whatsoever on
Borrower's consolidated stockholder's equity, (ii) to pay non-
cash dividends including but not limited to intercompany non-
cash dividends and non-cash dividends to facilitate stock
splits, and (iii) to repurchase shares of its Class A common
stock up to an aggregate amount of $150,000,000.00, which
amount shall include the approximately $100,000,000.00
repurchased to date.
SECTION 3. OTHER MODIFICATIONS, RATIFICATIONS AND AGREEMENTS.
3.1 All references to the Loan Agreement in the Loan
Agreement, the RLC Note and the other documents delivered with
respect to the RLC (the "Loan Documents") are hereby amended to
refer to the Loan Agreement as hereby amended.
3.2 Company acknowledges that the indebtedness evidenced
by the RLC Note is just and owing, that the balance thereof is
correctly shown in the records of Lender as of the date hereof, and
Company agrees to pay the indebtedness evidenced by the RLC Note
according to the terms thereof, as herein modified.
3.3 Company hereby reaffirms to Lender each of the
representations, warranties, covenants and agreements of Company
set forth in the RLC Note and the Loan Agreement, with the same
force and effect as if each were separately stated herein and made
as of the date hereof.
3.4 Company hereby ratifies, reaffirms, acknowledges, and
agrees that the RLC Note and the Loan Agreement, represent valid,
enforceable and collectible obligations of Company, and that there
are no existing claims, defenses, personal or otherwise, or rights
of setoff whatsoever with respect to any of these documents or
instruments. In addition, Company hereby expressly waives,
releases and absolutely and forever discharges Lender and its
present and former shareholders, directors, officers, employees and
agents, and their separate and respective heirs, personal
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representatives, successors and assigns, from any and all
liabilities, claims, demands, damages, action and causes of action,
whether known or unknown and whether contingent or matured, that
Company may now have, or has had prior to the date hereof, or that
may hereafter arise with respect to acts, omissions or events
occurring prior to the date hereof. To the best of Company's
knowledge, Company further acknowledges and represents that no
event has occurred and no condition exists that, after notice or
lapse of time, or both, would constitute a default under this
Agreement, the RLC Note or the Loan Agreement.
3.5 All terms, conditions and provisions of the RLC Note
and the Loan Agreement are continued in full force and effect and
shall remain unaffected and unchanged except as specifically
amended hereby. The RLC Note and the Loan Agreement, as amended
hereby, are hereby ratified and reaffirmed by Company, and Company
specifically acknowledges the validity and enforceability thereof.
SECTION 4. GENERAL.
4.1 This Agreement in no way acts as a release or
relinquishment of those rights securing payment of the RLC. Such
rights are hereby ratified, confirmed, renewed and extended by
Company in all respects.
4.2 The modifications contained herein shall not be
binding upon Lender until Lender shall have received all of the
following:
(a) An original of this Agreement fully executed by
the Company.
(b) Such resolutions or authorizations and such other
documents as Lender may reasonably require relating to the
existence and good standing of the Company and the authority
of any person executing this Agreement or other documents on
behalf of the Company.
4.3 Company shall execute and deliver such additional
documents and do such other acts as Lender may reasonably require
to fully implement the intent of this Agreement.
4.4 Company shall pay all costs and expenses, including,
but not limited to, reasonable attorneys' fees incurred by Lender
in connection herewith, whether or not all of the conditions
described in Paragraph 4.2 above are satisfied. Lender, at its
option, but without any obligation to do so, may advance funds to
pay any such costs and expenses that are the obligation of the
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Company, and all such funds advanced shall be due and payable upon
demand.
4.5 Notwithstanding anything to the contrary contained
herein or in any other instrument executed by Company or Lender, or
in any other action or conduct undertaken by Company or Lender on
or before the date hereof, the agreements, covenants and provisions
contained herein shall constitute the only evidence of Lender's
consent to modify the terms and provisions of the Loan Agreement.
Accordingly, no express or implied consent to any further
modifications involving any of the matters set forth in this
Agreement or otherwise shall be inferred or implied by Lender's
execution of this Agreement. Further, Lender's execution of this
Agreement shall not constitute a waiver (either express or implied)
of the requirement that any further modification of the RLC or of
the RLC Note or the Loan Agreement, shall require the express
written approval of Lender; no such approval (either express or
implied) has been given as of the date hereof.
4.6 Time is hereby declared to be of the essence hereof of
the RLC, of the RLC Note and of the Loan Agreement, and Lender
requires, and Company agrees to, strict performance of each and
every covenant, condition, provision and agreement hereof, of the
RLC Note and the Loan Agreement.
4.7 This Agreement shall be binding upon, and shall inure
to the benefit of, the parties hereto and their heirs, personal
representatives, successors and assigns.
4.8 This Agreement is made for the sole protection and
benefit of the parties hereto, and no other person or entity shall
have any right of action hereon.
4.9 This Agreement shall be governed by and construed
according to the laws of the State of Arizona.
IN WITNESS WHEREOF, these presents are executed as of the date
indicated above.
WELLS FARGO BANK, NATIONAL ASSOCIATION,
a national banking association
By: /s/ Jennifer Clack
Name: Jennifer Clack
Its: Associate Vice President
LENDER
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APOLLO GROUP, INC., an Arizona corporation
By: /s/ Kenda B. Gonzales
Name: Kenda B. Gonzales
Its: Chief Financial Officer
COMPANY
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