EXHIBIT 10.12
AMENDMENT NO. 4
to
RECEIVABLES PURCHASE AGREEMENT
THIS AMENDMENT NO. 4 ("Amendment") is entered into as of May 2, 2002
by and among New School, Inc., as Seller ("Seller"), School Specialty, Inc., as
Servicer ("SSI"), Falcon Asset Securitization Corporation ("Falcon"), the
Financial Institutions party hereto, and Bank One, NA (Main Office Chicago), as
agent (the "Agent").
PRELIMINARY STATEMENT
A. Seller, SSI, Falcon, the Financial Institutions and the Agent are
parties to that certain Receivables Purchase Agreement dated as of November 22,
2000 and amended by that certain Amendment No. 1 dated as of January 1, 2001,
that certain Amendment No. 2 dated as of June 13, 2001 and that certain
Amendment No. 3 dated as of November 20, 2001 (as the same may be further
amended, restated, supplemented or otherwise modified from time to time, the
"Purchase Agreement"). Capitalized terms used herein and not otherwise defined
shall have the meanings ascribed to them in the Purchase Agreement.
B. Seller, SSI, Falcon, the Financial Institutions and the Agent
have agreed to amend the Purchase Agreement, subject to the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the premises set forth above, and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:
SECTION 1. Amendment. Effective as of the date hereof, subject to the
satisfaction of the condition precedent set forth in Section 2 below, the
Purchase Agreement is hereby amended as follows:
1.1 Section 5.1(g) is hereby amended to insert the phrase "Weekly
Reports," immediately prior to the phrase "Semi-Monthly Reports" appearing
therein;
1.2 Section 6.2 is hereby amended to insert the phrase "Weekly
Reports," immediately prior to the phrase "Semi-Monthly Reports" appearing
therein and to insert the phrase "Weekly Report," immediately prior to the
phrase "Semi-Monthly Report" appearing therein;
1.3 Section 8.5 is hereby amended to delete the phrase "and (iii)"
appearing therein and to replace the phrase ", (iii) on each Weekly Reporting
Date and at such times as the Agent shall request, a Weekly Report and (iv)"
therefor;
1.4 the definition of "Adjusted Liquidity Price" appearing in Exhibit
I is hereby amended to delete the number "1.05" appearing in the denominator of
the formula appearing therein and to replace the number "1.045" therefor;
1.5 the definition of "Dilution Ratio" appearing in Exhibit I is
hereby amended to insert the phrase ", Premier Receivables" immediately prior to
the phrase "and Childcraft Receivables" appearing therein.
1.6 the definition of "Dilution Trigger Ratio" appearing in Exhibit I
is hereby amended to insert the phrase ", Premier Receivables" immediately prior
to the phrase "and Childcraft Receivables" appearing therein.
1.7 the definition of "Eligible Receivable" appearing in Exhibit I is
hereby amended (i) to delete the word "and" appearing at the end of clause (xv)
thereof, (ii) to delete the period (.) appearing at the end of clause (xvi)
thereof and to replace the word "and," therefor, and (iii) to insert the
following new clause (xvii) at the end thereof:
"(xvii) which, if the related Originator is Premier Agendas, Inc., was
generated by either PG Commercial Printing or PAI Agenda Sales, each a
division of Premier Agendas, Inc."
1.8 the definition of "Loss Reserve" appearing in Exhibit I is hereby
amended (a) to delete the number "3" appearing in clause (i) thereof and to
replace the number "2.25" therefor, and (b) to delete the percentage "10%"
appearing in clause (ii) thereof and to replace the percentage "9%" therefor;
1.9 the definition of "Net Receivables Balance" appearing in Exhibit
I is hereby amended to insert the phrase "and further reduced by (i) the State
Overconcentration Amount and (ii) the PG Commercial Printing Overconcentration
Amount" at the end thereof;
1.10 the definition of "Purchase Price" appearing in Exhibit I is
hereby amended to insert the phrase "Weekly Report," immediately prior to the
phrase "Monthly Report" appearing therein;
1.11 the definition of "Purchase Limit" appearing in Exhibit I is
hereby amended to delete the amount "$50,000,000" appearing therein and to
replace the amount "$100,000,000" therefor;
1.12 Exhibit I is hereby amended to insert the following definitions
in alphabetical order:
"PG Commercial Printing Overconcentration Amount" means, at any
time, the amount by which the aggregate Outstanding Balance of all Eligible
Receivables generated by PG Commercial Printing, a division of Premier
Agendas, Inc., exceeds the product of (i) five percent (5%) and (ii) the
aggregate Outstanding Balance of all Eligible Receivables at such time.
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"Premier Receivables" means all Receivables for which the
Original Seller is Premier Agendas, Inc., a Washington corporation.
"State Overconcentration Amount" means, at any time, the amount
by which the aggregate Outstanding Balance of all Eligible Receivables of
all Obligors located in any one state exceeds the product of (i) fifteen
percent (15%) and (ii) the aggregate Outstanding Balance of all Eligible
Receivables at such time.
"Weekly Report" means a report, in substantially the form of
Exhibit XII hereto (appropriately completed), furnished by the Servicer to
the Agent pursuant to Section 8.5.
"Weekly Reporting Date" means each Tuesday of each week.
1.11 Exhibit X (Form of Monthly Report) is hereby deleted in its
entirety and replaced with Exhibit 1 hereto.
1.12 Exhibit 2 hereto (Form of Weekly Report) is hereby attached to
the Purchase Agreement as a new Exhibit XII.
SECTION 2. Conditions Precedent. This Amendment shall become effective
and be deemed effective, as of the date first above written, upon receipt by the
Agent of (i) one copy of this Amendment duly executed by each of the parties
hereto, and (ii) a fully-earned, non-refundable amendment fee from the Seller in
the amount of $75,000.
SECTION 3. Covenants, Representations and Warranties of the Seller and
the Servicer.
3.1 Upon the effectiveness of this Amendment, each of Seller and SSI
hereby reaffirms all covenants, representations and warranties made by it, to
the extent the same are not amended hereby, in the Purchase Agreement and agrees
that all such covenants, representations and warranties shall be deemed to have
been re-made as of the effective date of this Amendment.
3.2 Each of Seller and SSI hereby represents and warrants as to
itself (i) that this Amendment constitutes the legal, valid and binding
obligation of such party enforceable against such party in accordance with its
terms, except as enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and general principles of equity which may limit the
availability of equitable remedies and (ii) upon the effectiveness of this
Amendment, no event shall have occurred and be continuing which constitutes an
Amortization Event or a Potential Amortization Event.
SECTION 4. Reference to and Effect on the Investor Agreement.
4.1 Upon the effectiveness of this Amendment, each reference in the
Purchase Agreement to "this Agreement," "hereunder," "hereof," "herein,"
"hereby" or words of like import shall mean and be a reference to the Purchase
Agreement as amended hereby, and each
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reference to the Purchase Agreement in any other document, instrument or
agreement executed and/or delivered in connection with the Purchase Agreement
shall mean and be a reference to the Purchase Agreement as amended hereby.
4.2 Except as specifically amended hereby, the Purchase Agreement and
other documents, instruments and agreements executed and/or delivered in
connection therewith shall remain in full force and effect and are hereby
ratified and confirmed.
4.3 The execution, delivery and effectiveness of this Amendment shall
not operate as a waiver of any right, power or remedy of Falcon, the Financial
Institutions or the Agent under the Purchase Agreement or any of the other
Transaction Documents, nor constitute a waiver of any provision contained
therein, except as specifically set forth herein.
SECTION 5. GOVERNING LAW. THIS AMENDMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS,
AND REMEDIES OF THE PARTIES UNDER THIS AGREEMENT SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
SECTION 6. Execution in Counterparts. This Amendment may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed to be
an original and all of which taken together shall constitute but one and the
same instrument.
SECTION 7. Headings. Section headings in this Amendment are included
herein for convenience of reference only and shall not constitute a part of this
Amendment for any other purpose.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed on the date first set forth above by their respective officers
thereto duly authorized, to be effective as hereinabove provided.
NEW SCHOOL, INC., as Seller
By: /s/ Xxxx X. Xxxxxxxxxx
-----------------------------
Name: Xxxx X. Xxxxxxxxxx
Title: Treasurer
SCHOOL SPECIALTY, INC., as Servicer
By: /s/ Xxxx X. Xxxxxxxxxx
-----------------------------
Name: Xxxx X. Xxxxxxxxxx
Title: CFO
FALCON ASSET SECURITIZATION CORPORATION
By: /s/ Xxxxxxx X. Power
-----------------------------
Name: Xxxxxxx X. Power
Title: Authorized Signatory
BANK ONE, NA (MAIN OFFICE CHICAGO),
as a Financial Institution and as Agent
By: /s/ Xxxxxxx X. Power
-----------------------------
Name: Xxxxxxx X. Power
Title: Authorized Signatory
Signature Page to Amendment No. 4
