EXHIBIT 4.5
CONSENT AND AMENDMENT
THIS CONSENT AND AMENDMENT dated as of November 20, 2000 (this "Amendment")
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relating to the Credit Agreement referenced below is by and among SCHOOL
SPECIALTY, INC., a Wisconsin corporation (the "Borrower"), the Subsidiaries of
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the Borrower identified as "Guarantors" on the signature pages hereto, the
Lenders identified on the signature pages hereto and Bank of America, N.A., as
Administrative Agent (in such capacity, the "Administrative Agent"). Terms used
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herein but not otherwise defined herein shall have the meanings provided to such
terms in the Credit Agreement.
W I T N E S S E T H
WHEREAS, a $350 million credit facility has been extended to the Borrower
pursuant to the terms of that Amended and Restated Credit Agreement dated as of
September 30, 1998 (as amended, modified, supplemented, increased and extended
from time to time, the "Credit Agreement") by and among the Borrower, the
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Guarantors, the Lenders and the Administrative Agent;
WHEREAS, the Borrower proposes to enter, and to cause certain of its
Subsidiaries to enter, into a Securitization Transaction substantially on the
terms and conditions set forth in the agreements attached as Schedule 1 hereto
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(the "Proposed Securitization Transaction");
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WHEREAS, the Borrower has requested that the Lenders consent to the
Proposed Securitization Transaction, thereby causing the Proposed Securitization
Transaction to be deemed a "Permitted Securitization Transaction" under the
Credit Agreement;
WHEREAS, the requested consent requires the approval of the Required
Lenders; and
WHEREAS, the Required Lenders have agreed to the requested consent on the
terms and conditions set forth herein.
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Consents to Proposed Securitization Transaction. The Required Lenders
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hereby agree and confirm that the Proposed Securitization Transaction satisfies
clause (i) of the definition of "Permitted Securitization Transaction". The
Required Lenders hereby authorize and direct the Administrative Agent to give
notice to the Borrower of the satisfaction of the conditions precedent set forth
in Section 6 of this Amendment.
2. Consent to Intercreditor Agreement. The Required Lenders hereby
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authorize and direct the Administrative Agent to enter into an Intercreditor
Agreement in substantially the form of Schedule 2 hereto in connection with the
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Proposed Securitization Transaction.
3. Consent to Release of Liens. The Required Lenders hereby consent to
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the release by the Administrative Agent of the security interest and liens of
the Administrative Agent, for the benefit of the Lenders, in all of the Property
described on Schedule 3 hereto.
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4. Consent Relating to Special Purpose Subsidiary. The Required Lenders
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hereby consent and agree that, solely for purposes of Section 7.11(a) of the
Credit Agreement, the Special Purpose Subsidiary shall not be deemed a "Non-
Guarantor Subsidiary" and accordingly shall not be required to deliver a Joinder
Agreement or other agreement providing for a guaranty of, or a grant of a
security interest in its Property to secure, the obligations of the Credit
Parties under the Credit Documents.
5. Amendments. The Credit Agreement is amended in the following respects:
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(a) The following definition is added to Section 1.1 of the Credit
Agreement:
"Special Purpose Subsidiary" means New School, Inc., a Delaware
corporation.
(b) The definition of "Credit Documents" in Section 1.1 of the Credit
Agreement is amended to read as follows:
"Credit Documents" means a collective reference to this Credit
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Agreement, the Notes, the LOC Documents, the Security Agreement,
the Pledge Agreement, the Mortgages, the Intercreditor Agreement,
each Joinder Agreement, the Administrative Agent's Fee Letter,
and all other related agreements and documents issued or
delivered hereunder or thereunder or pursuant hereto or thereto.
(c) The following sentence is added to Section 8.1 of the Credit
Agreement immediately following the last clause thereof:
Notwithstanding anything to the contrary in this Section 8.1 or
otherwise, the Special Purpose Subsidiary shall not contract,
create, incur, assume or permit to exist any Indebtedness other
than Indebtedness existing under Permitted Securitization
Transactions.
(d) The following sentence is added to the end of Section 8.2 of the
Credit Agreement:
Notwithstanding anything to the contrary in this Section 8.2 or
otherwise, the Special Purpose Subsidiary shall not contract,
create, incur, assume or permit to exist any Lien with respect to
any of its Property, whether now owned or hereafter acquired,
except for Liens existing in connection with Permitted
Securitization Transactions.
6. Conditions Precedent. This Amendment shall be effective upon
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satisfaction of the following conditions precedent:
(a) receipt by the Administrative Agent of multiple counterparts of
this Amendment executed by the Credit Parties and the Required Lenders;
(b) receipt by the Administrative Agent of the promissory note or
other agreement or instrument evidencing the obligation of the Special
Purpose Subsidiary to pay amounts to the Borrower or any of its
Subsidiaries (including the "Original Sellers" as such term is defined in
Schedule 3 hereto) in connection with or relating to the Proposed
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Securitization Transaction,
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together with a related endorsement (in a form satisfactory to the
Administrative Agent) executed in blank;
(c) receipt by the Administrative Agent of (i) a pledge joinder
agreement (in form and substance satisfactory to the Administrative Agent)
evidencing the pledge by the Borrower of all of the capital stock of the
Securitization Subsidiary pursuant to the terms of the Pledge Agreement and
(ii) the stock certificates representing the capital stock of the
Securitization Subsidiary, together with related stock powers executed in
blank; and
(d) receipt by the Administrative Agent a legal opinion of counsel to
the Borrower (in form, scope and substance satisfactory to the
Administrative Agent) to the effect that the pledge by the Borrower of the
promissory note referenced in clause (a) above and the pledge by the
Borrower of the capital stock of the Securitization Subsidiary (i) do not
conflict with (A) the agreements, documents and instruments relating to the
Proposed Securitization Transaction, (B) the governance documents of the
Securitization Subsidiary or (C) any Requirement of Law, and (ii) are
enforceable against the Borrower.
7. Covenant to Deliver Opinion of Counsel. The Borrower hereby covenants
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and agrees to to the Administrative Agent, no later than thirty (30) days after
the date hereof, a legal opinion of counsel to the Borrower (in form, scope and
substance satisfactory to the Administrative Agent) relating to the pledge by
the Borrower of the promissory note referenced in clause (a) above and the
pledge by the Borrower of the capital stock of the Securitization Subsidiary.
The Borrower hereby agrees that the failure to deliver such legal opinion to the
Administrative Agent by such date shall constitute an immediate Event of
Default.
8. Reaffirmation of Representations and Warranties. The Credit Parties
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hereby affirm that the representations and warranties set forth in the Credit
Documents are true and correct as of the date hereof after giving effect to this
Amendment (except those that expressly relate to an earlier period).
9. Reaffirmation of Guaranty. Each of the Guarantors (i) acknowledges and
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consents to all of the terms and conditions of this Amendment, (ii) affirms all
of its obligations under the Credit Documents and (iii) agrees that this
Amendment and all documents executed in connection herewith do not operate to
reduce or discharge the Guarantors' obligations under the Credit Agreement and
the other Credit Documents.
10. No Other Changes. Except as modified hereby, all of the terms and
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provisions of the Credit Agreement and the other Credit Documents (including the
schedules and exhibits thereto) shall remain in full force and effect.
11. Cost and Expenses. The Borrower agrees to pay all reasonable costs and
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expenses of the Administrative Agent in connection with the preparation,
execution and delivery of this Amendment, including without limitation the
reasonable fees and expenses of ▇▇▇▇▇ & ▇▇▇ ▇▇▇▇▇, PLLC.
12. Counterparts. This Amendment may be executed in any number of
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counterparts, each of which when so executed and delivered shall be deemed an
original and it shall not be necessary in making proof of this Amendment to
produce or account for more than one such counterpart.
13. Governing Law. This Amendment shall be deemed to be a contract made
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under, and for all purposes shall be construed in accordance with, the laws of
the State of New York.
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IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of
this Amendment to be duly executed and delivered as of the date first above
written.
BORROWER: SCHOOL SPECIALTY, INC.
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a Wisconsin corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: CFO
GUARANTORS: CHILDCRAFT EDUCATION CORP.,
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a New York corporation
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, LLC,
a Delaware limited liability company
BIRD-IN-HAND WOODWORKS, INC.,
a New Jersey corporation
SPORTIME, LLC,
a Delaware limited liability company
▇▇▇▇▇▇▇.▇▇▇, INC.,
a Wisconsin corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Treasurer
[Signature Pages Continue]
LENDERS: BANK OF AMERICA, N.A., a national banking
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association formerly known as NationsBank, N.A.,
individually as a Lender and in its capacity as
Administrative Agent
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
BANK ONE, NA (main office, Chicago)
By: /s/ ▇.▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Managing Director
U.S. BANK NATIONAL ASSOCIATION
By:______________________________________________
Name:
Title:
THE BANK OF NEW YORK
By:______________________________________________
Name:
Title:
▇▇▇▇▇▇ TRUST AND SAVINGS BANK
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
FIRSTAR BANK, N.A. (formerly known as Firstar Bank
Milwaukee, N.A.)
By:______________________________________________
Name:
Title:
CITIZENS BANK OF MASSACHUSETTS, as successor to USTRUST
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
[Signature Pages Continue]
LASALLE BANK NATIONAL ASSOCIATION
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President & Senior Lender
ST. ▇▇▇▇▇▇▇ BANK, F.S.B.
By: /s/ ▇▇▇▇ ▇. Tans
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Name: ▇▇▇▇ ▇. Tans
Title: Vice President
UNION BANK OF CALIFORNIA, N.A.
By: /s/ J. ▇▇▇▇▇ ▇▇▇▇▇▇
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Name: J. ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
WACHOVIA BANK, N.A.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇▇▇ & ILSLEY BANK
By:_______________________________
Name:
Title:
SCHEDULE 1
Proposed Securitization Transaction Agreements
SCHEDULE 2
Form of Intercreditor Agreement
SCHEDULE 3
Property to be Released
All of the following assets, whether now or hereafter arising: (a) all Purchased
Receivables, (b) all Collections, (c) each Lock-Box, (d) each Collection
Account, (e) all Related Security, (f) all other rights and payments relating to
the Receivables, and (g) all proceeds of any of the foregoing. As used in this
Schedule 3, the following terms shall have the following meanings:
"Borrower" means School Specialty, Inc., a Wisconsin corporation.
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"Collection Account" means each concentration account, depository
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account, lock-box account or similar account in which any
Collections are collected or deposited.
"Collections" means, with respect to any Purchased Receivable, all
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cash collections and other cash proceeds in respect of such Purchased
Receivable, including, without limitation, all yield, Finance Charges,
or other related amounts accruing in respect thereof and all cash
proceeds of Related Security with respect to such Purchased
Receivable.
"Contract" means any instrument, agreement, invoice or other writing
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between an Originator and an Obligor for the sale of goods or the
rendering of services by such Originator to such Obligor.
"Finance Charges" means, with respect to a Purchased Receivable, any
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finance, interest, late payment charges or similar charges owing by an
Obligor pursuant to the related Contract.
"Lock-Box" means each locked postal box with respect to which a bank
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holding one or more Collection Accounts has been granted exclusive
access for the purpose of retrieving and processing payments made on
the Purchased Receivables.
"Obligor" means a Person obligated to make payments to an Originator
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pursuant to a Contract.
"Original Seller" means each of ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, LLC, a Delaware
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limited liability company, Childcraft Education Corp., a New York
corporation, Global Video, LLC, a Wisconsin limited liability company,
and Sportime, LLC, a Delaware limited liability company, in their
respective capacities as sellers under the Receivables Transfer
Agreements.
"Originator" means an Original Seller or the Borrower.
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"Person" means an individual, partnership, corporation (including a
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business trust), limited liability company, joint stock company,
trust, unincorporated association, joint venture or other entity, or a
government or any political subdivision or agency thereof.
"Purchased Receivables" means (i) all Receivables sold, contributed or
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otherwise transferred by an Original Seller to the Borrower under and
pursuant to the terms of the Receivables Transfer Agreements and
subsequently sold, contributed or otherwise
transferred by the Borrower to the Transferee under and pursuant to
the terms of the Receivables Sales Agreement, and (ii) all other
Receivables sold, contributed or otherwise transferred by the Borrower
to the Transferee under and pursuant to the terms of the Receivables
Sales Agreement.
"Receivable" means the indebtedness and other obligations, whether
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constituting an account, chattel paper, instrument, payment intangible
or general intangible, arising in connection with the sale of goods or
the rendering of services by an Originator and further includes,
without limitation, the obligation to pay any Finance Charges with
respect thereto.
"Receivables Sale Agreement" means that certain Receivables Sale
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Agreement, dated on or about November 20, 2000, between the Transferee
and the Borrower (as such agreement may be amended, restated,
supplemented, or otherwise modified form time to time).
"Receivables Transfer Agreement" means each of those certain
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Receivables Transfer Agreements, dated on or about November 20, 2000,
between the Borrower and each of the Original Sellers (as such
agreements may be amended, restated, supplemented, or otherwise
modified form time to time).
"Records" means, with respect to any Purchased Receivable, all
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Contracts and other documents, books, records and other information
(including, without limitation, computer programs, tapes, disks, punch
cards, data processing software and related property and rights)
relating to such Purchased Receivable, any Related Security therefor
and the related Obligor.
"Related Security" means, with respect to any Purchased Receivable:
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(a) all security interests or liens and property subject thereto
from time to time, if any, purporting to secure payment of such
Purchased Receivable, whether pursuant to the Contract related to
such Purchased Receivable or otherwise, together with all
financing statements and security agreements describing any
collateral securing such Purchased Receivable,
(b) all guaranties, letters of credit, insurance and other
agreements or arrangements of whatever character from time to
time supporting or securing payment of such Purchased Receivable
whether pursuant to the Contract related to such Purchased
Receivable or otherwise,
(c) all service contracts and other contracts and agreements
associated with such Purchased Receivable,
(d) all Records and rights under the Contract(s) related to such
Purchased Receivable,
(e) all of the Borrower's right, title and interest in, to and
under the Receivables Transfer Agreement in respect of such
Purchased Receivable, and
(f) all proceeds of any of the foregoing.
"Transferee" means New School, Inc., a Delaware corporation.
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