EXHIBIT 10.47
AMENDMENT NO. 6
TO CREDIT AGREEMENT AND WAIVER
THIS AMENDMENT NO. 6 TO CREDIT AGREEMENT AND WAIVER (this "Amendment")
is entered into as of July 31, 2003, among LA PETITE ACADEMY, INC., a Delaware
corporation (the "Borrower"); LPA HOLDING CORP., a Delaware corporation
("Holdings"); the Lenders party hereto; and U.S. BANK NATIONAL ASSOCIATION, as
Administrative Agent, Documentation Agent and Collateral Agent for the Lenders
and as Issuing Bank and Swingline Lender (in such capacities, the
"Administrative Agent"). Capitalized terms used herein and not otherwise defined
shall have the meanings ascribed thereto in the Credit Agreement (as defined
below).
RECITALS
WHEREAS, the Borrower, Holdings, the Lenders and certain other persons
signatory thereto entered into the Credit Agreement dated as of May 11, 1998 (as
previously amended and modified by Amendment No. 1, dated as of December 13,
1999; Amendment No. 2, dated as of June 29, 2000; Amendment No. 3, dated as of
November 14, 2002; Amendment No. 4, dated as of February 5, 2002; and Amendment
No. 5 dated as of February 10, 2003, and as otherwise amended or modified from
time to time, the "Credit Agreement");
WHEREAS, as set forth on Annex I hereto, Events of Default exist under
the Credit Agreement as a result of the failure of the Borrower to comply with
certain terms of Sections 5.01 and 5.10 of the Credit Agreement (as specifically
set forth on Annex I hereto) through the date hereof (the "Existing Defaults");
WHEREAS, the Borrower has requested that the Lenders waive the Existing
Defaults and that the Lenders agree to modify certain terms of the Credit
Agreement;
WHEREAS, the Lenders are willing to provide a waiver of the Existing
Defaults based upon and subject to the terms and conditions specified in this
Amendment; and
WHEREAS, the Lenders and the Loan Parties have agreed to modify the
Credit Agreement as more fully set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as set forth below.
AGREEMENT
SECTION 1
REAFFIRMATION/WAIVERS
1.1 Reaffirmation of Existing Debt and Liens. The Borrower
acknowledges and confirms that: (a) as of the date hereof, the outstanding
principal amount of Revolving Loans and issued Letters of Credit is $25,000,000
and the outstanding principal amount of Term Loans is $34,493,589.39; (b) the
Lenders have a Lien on all Collateral and the Collateral is not subject to any
Lien other than those specifically permitted under the Loan Documents; (c) all
obligations under the Loan Documents will be due and payable in full on the
Maturity Date if not accelerated sooner pursuant to the terms of the Credit
Agreement; (d) the Borrower's obligation to repay the outstanding principal
amount of the Loans and to reimburse the Issuing Bank for any drawing on a
Letter of Credit is unconditional and, as of the date hereof, is not subject to
any offsets, defenses or counterclaims; (e) the Administrative Agent and the
Lenders have performed fully all of their respective obligations to the Loan
Parties under the Credit Agreement and the other Loan Documents; and (f) by
entering into this Amendment, the Lenders party hereto do not waive, modify or
release (except as specifically set forth herein) any term or condition of the
Credit Agreement or any of the other Loan Documents or any of their rights or
remedies under such Loan Documents or applicable law or any of the obligations
of the Loan Parties thereunder.
1.2 Waiver.
(a) The Borrower acknowledges the existence and continuation of
the Existing Defaults. The Lenders hereby permanently waive the Existing
Defaults subject to the satisfaction of the terms and conditions set forth in
Article III (unless such terms and conditions are otherwise waived by the
Lenders).
(b) Except for the specific waiver set forth above, nothing
contained herein shall be deemed to constitute a waiver of (i) any rights or
remedies the Administrative Agent or any Lender may have under the Credit
Agreement or any other Loan Document or under applicable law or (ii) the Loan
Parties' obligation to comply fully with any duty, term, condition, obligation
or covenant contained in the Credit Agreement and the other Loan Documents not
specifically waived.
(c) The specific waiver set forth herein is a one-time waiver and
shall be effective only in this specific instance, and shall not obligate the
Lenders to waive any Default or Event of Default other than the Existing
Defaults, now existing or hereafter arising.
SECTION 2
AMENDMENTS TO CREDIT AGREEMENT
Effective as of the date hereof (or at such other time specified
herein, as applicable), the Credit Agreement is amended as set forth below.
Section 1.01 of the Credit Agreement is hereby amended to add the
following new definition of "Amendment No. 1 to Securities Purchase Agreement"
in the appropriate alphabetical order:
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"'Amendment No. 1 to Securities Purchase Agreement' means
Amendment No. 1 to the 2003 Securities Purchase Agreement dated as of
July 31, 2003, among Holdings, LPA Investment and the other signatories
thereto from time to time .
" The definition of "2003 Securities Purchase Agreement"
set forth in Section 1.01 of the Credit Agreement is amended and
restated in its entirety as follows:
"'2003 Securities Purchase Agreement' means the Securities
Purchase Agreement dated as of February 10, 2003, among Holdings, LPA
Investment and the other signatories thereto from time to time, as
amended by Amendment No. 1 to Securities Purchase Agreement and as
otherwise amended from time to time."
The definition of "Consolidated EBITDA" set forth in Section
1.01 of the Credit Agreement is amended and restated in its entirety as
follows:
"`Consolidated EBITDA' means, for any period, Consolidated Net
Income for such period, plus, without duplication and to the extent
deducted from revenues in determining Net Income for such period, the
sum of (a) the aggregate amount of Consolidated Interest Expense for
such period, (b) the aggregate amount of letter of credit fees paid
during such period, (c) the aggregate amount of income tax expense for
such period, (d) all amounts attributable to depreciation, amortization
and other non-cash charges or losses for such period, (e) (i) all fees,
costs and expenses to be paid by the Loan Parties (including, but not
limited to, the fees, costs and expenses to be reimbursed by the Loan
Parties to the Administrative Agent and the Lenders) in connection with
the negotiation, execution and delivery of Amendment Xx. 0, Xxxxxxxxx
Xx. 0 and Amendment No. 5 and (ii) all fees, costs and expenses
associated with the New Equity Issuance, the Equity Commitment and the
2003 Equity Commitment (including, but not limited to, legal fees) ((i)
and (ii) collectively referred to as the "Amendment Expenses"); (f)
proceeds received by Holdings, if any, from time to time pursuant to
the transactions contemplated by the 2003 Securities Purchase
Agreement; (g) all fees, costs and expenses of any consultants or
advisors engaged by the Borrower from time to time and incurred prior
to July 31, 2003 (including, but not limited to, Argus Management
Corporation, X. Xxxx and Barrier Advisors, L.P.); (h) any non-recurring
charges associated with the closing of any Academy owned, leased or
operated by the Borrower or any of its Subsidiaries; and (i) non-cash
expenses resulting from the grant of stock options to any director,
officer or employee of Holdings, the Borrower or any Subsidiary
pursuant to a written plan or agreement, all as determined on a
consolidated basis with respect to Holdings, the Borrower and the
Subsidiaries in accordance with GAAP."
Article VII of the Credit Agreement is amended to add the following
paragraph immediately following the final paragraph thereof:
"Notwithstanding anything to the contrary contained herein,
any Default of Event of Default arising out clause (a) or (b) above (a
"Payment Default") shall be automatically waived by the Lenders at such
time as (i) Holdings receives proceeds from the 2003 Equity Commitment
equal to the applicable Payment Default Amount (as defined in the 2003
Securities Purchase Agreement) in accordance with the terms of the
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2003 Securities Purchase Agreement and (ii) such proceeds are used to
pay to the Lenders the full amount of any portion of the Obligations
then past-due and owing."
SECTION 3
CONDITIONS PRECEDENT
This Amendment shall not be effective until the conditions set forth
below have been satisfied (or waived by the Lenders).
(a) Documentation. Receipt by the Administrative Agent of
counterparts of this Amendment executed by each of the Loan Parties and
the Lenders.
(b) Expenses. The payment by the Borrower to Xxxxxx and
Xxxxx, L.L.P., counsel to the Administrative Agent and Highland Capital
Management, L.P., of all legal fees incurred by such Persons in
connection with the Credit Agreement to the extent an invoice for such
fees and expenses is sent to the Borrower or its counsel prior to the
date hereof.
SECTION 4
MISCELLANEOUS
4.1 Ratification of Loan Documents. The terms "Credit Agreement"
and "Agreement" as used in each of the Loan Documents shall hereafter mean the
Credit Agreement as amended by this Amendment. The Borrower and Holdings each
(a) ratifies and confirms all provisions of the Credit Agreement, as amended by
this Amendment, and the other Loan Documents; (b) ratifies and confirms that all
guaranties, assurances, and liens granted, conveyed, or assigned to Lender under
the Loan Documents are not released, reduced, or otherwise adversely affected by
this Amendment and continue to guarantee and secure full payment and performance
of its obligations under the Credit Agreement and the other Loan Documents; and
(c) agrees to perform such reasonable acts and duly authorize, execute,
acknowledge, deliver, file and record such additional documents, and
certificates as the Administrative Agent or Required Lenders may reasonably
request in order for the Lenders to create, perfect, preserve and protect those
guaranties, assurances and liens. Except to the extent amended hereby, all
terms, provisions and conditions of the Credit Agreement, the other Loan
Documents and all documents executed in connection therewith, shall continue in
full force and effect and shall remain enforceable and binding in accordance
with their respective terms.
4.2 Consent to Amendment No. 1 to Securities Purchase Agreement.
The Administrative Agent and the Lenders each hereby consent to the execution
and delivery of Amendment No. 1 to the Securities Purchase Agreement by the
parties thereto.
4.3 Authority/Enforceability. Each of the Loan Parties, the
Administrative Agent and the Lenders party hereto represents and warrants as set
forth below.
(a) It has taken all necessary action to authorize the
execution, delivery and performance of this Amendment.
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(b) This Amendment has been duly executed and delivered
by such Person and constitutes such Person's legal, valid and binding
obligations, enforceable in accordance with its terms, except as such
enforceability may be subject to (i) bankruptcy, insolvency,
reorganization, fraudulent conveyance or transfer, moratorium or
similar laws affecting creditors' rights generally and (ii) general
principles of equity (regardless of whether such enforceability is
considered in a proceeding at law or in equity).
(c) No material consent, approval, authorization or order
of, or filing, registration or qualification with, any court or
Governmental Authority or third party is required in connection with
the execution, delivery or performance by such Person of this
Amendment.
4.4 Representation and Warranties. Each of the Borrower and
Holdings represents and warrants to the Lenders as set forth below.
(a) The representations and warranties of the Borrower
and Holdings set forth in Article III of the Credit Agreement qualified
as to materiality are true and correct as of the date hereof and those
not so qualified are true and correct as of the date hereof in all
material respects, except, in each case, for those that specifically
relate to an earlier date.
(b) No event has occurred and is continuing which
constitutes a Default or an Event of Default (other than as
specifically waived hereby).
(c) The Security Documents create a valid security
interest in, and Lien upon, the Collateral.
(d) The Loan Documents, as amended hereby, are valid and
binding obligations of the Loan Parties, enforceable in accordance with
their respective terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other laws affecting creditors' rights
generally and subject to general principles of equity, regardless of
whether considered in a proceeding in equity or law.
(e) The execution and delivery of this Amendment and the
performance of the transactions contemplated hereby (a) do not require
any consent or approval of, registration or filing with, or any other
action by, any Governmental Authority, except such as have been
obtained or made and are in full force and effect or, if not obtained
or made, would not, individually or in the aggregate, be reasonably
likely to have a Material Adverse Effect; (b) will not violate any
applicable law or regulation or the charter, by-laws or other
organizational documents of Holdings, the Borrower or any of the
Subsidiaries or any order of any Governmental Authority, except, with
respect to any violation of applicable law or regulation or any order
of any Governmental Authority, to the extent any such violation would
not, individually or in the aggregate, be reasonably likely to have a
Material Adverse Effect; and (c) will not violate or result in a
default under any indenture, agreement or other instrument binding upon
Holdings, the Borrower or any of the Subsidiaries or its assets, or
give rise to a right thereunder to require any payment to be made by
Holdings, the Borrower or any of the Subsidiaries, except to the
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extent any such violation, default or right would not, individually or
in the aggregate, be reasonably likely to have a Material Adverse
Effect.
(f) The information required to be delivered to the
Administrative Agent and the Lenders, as applicable, prior to the date
hereof pursuant to Section 5.01 of the Credit Agreement has been
provided to the Administrative Agent and the Lenders, as applicable,
prior to the date hereof.
4.5 Covenants. Each of Holdings and the Borrower covenants to file
with the Securities and Exchange Commission on or before August 31, 2003, its
quarterly reports on form 10-Q for the fiscal quarters ended October, 19, 2002,
January 11, 2003 and April 5, 2003.
4.6 General Release. In consideration of the Lenders entering into
this Amendment, the Loan Parties hereby release the Administrative Agent, the
Lenders, and the Administrative Agent's and the Lenders' respective officers,
employees, representatives, agents, counsel and directors from any and all
actions, causes of action, claims, demands, damages and liabilities of whatever
kind or nature, in law or in equity, now known or unknown, suspected or
unsuspected to the extent that any of the foregoing arises from any action or
failure to act under the Credit Agreement on or prior to the date hereof.
4.7 Counterparts/Telecopy. This Amendment may be executed in any number
of counterparts, each of which when so executed and delivered shall be an
original, but all of which shall constitute one and the same instrument.
Delivery of executed counterparts by telecopy shall be effective as an original
and shall constitute a representation that an original will be delivered if
requested.
4.8 Further Assurances. The Borrower agrees to promptly take such
action, upon the reasonable request of the Administrative Agent or the Required
Lenders, as is reasonably necessary to carry out the intent of this Amendment,
the Security Documents and the Loan Documents, including, but not limited to,
such actions as are necessary to ensure that the Lenders have a perfected
security interest in the Collateral subject to no Liens other than the Liens
permitted by Section 6.02 of the Credit Agreement.
4.9 GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
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ANNEX I
EXISTING DEFAULTS
SECTION OF
CREDIT AGREEMENT DEFAULT
------------------ -----------------------------------------------------------------------------------
5.01(k), 5.01(l) Failure to provide financial information for the 36-week period ended March 8, 2003
on a timely basis.
5.01(k), 5.01(l) Failure to provide financial information for the fiscal quarter ended October 19,
2002 on a timely basis.
5.01(k), 5.01(l) Failure to provide financial information for the fiscal quarter ended January 11,
2003 on a timely basis.
5.01(c), 5.01(j), 5.01(l) Failure to provide financial information for each four-week fiscal period
(except for a period ending on the last day of each fiscal quarter) from February
10, 2003 to May 31, 2003 on a timely basis.
5.01(f) Failure to deliver a detailed consolidated budget for fiscal year 2004 on a timely
basis within the first 15 days of the fiscal year.
5.01(i) Failure to provide a 13 week forecast of cash flows on March 15, 2003 and within 30
days after the end of each four-week fiscal period through the date hereof on a
timely basis.
5.01(m) Failure to provide a list of all material assets acquired during the four- week
fiscal period ended March 8, 2003 and within 30 days after the end of each four-week
fiscal period through the date hereof on a timely basis.
5.10 Failure to file by April 15, 2003, quarterly reports on form 10Q for the fiscal
quarters ended October 19, 2002 and January 11, 2003.
5.10 Failure to file a quarterly report on form 10Q for the fiscal quarter ended April 5,
2003.
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Signature Page
Amendment No. 6 to Credit Agreement and Waiver
La Petite Academy, Inc.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their proper and duly authorized officers or
attorneys-in-fact as of the day and year first above written.
BORROWER: LA PETITE ACADEMY, INC.
By: /s/ Xxxxxxx Xxxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Senior Vice President and C.F.O.
HOLDINGS: LPA HOLDING CORP.
By: /s/ Xxxxxxx Xxxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Senior Vice President and C.F.O.
Signature Page
Amendment No. 6 to Credit Agreement and Waiver
La Petite Academy, Inc.
Each of the undersigned are unconditional guarantors of all obligations
of the Borrower under the Loan Documents and acknowledge and agree that (a) this
Amendment does not modify or waive any of its obligations under the Loan
Documents, including the Guarantee Agreements and (b) all Liens granted by it to
support its obligations remain in full force and effect.
LPA HOLDING CORP.
By: /s/ Xxxxxxx Xxxxxxx
----------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Senior Vice President and C.F.O.
LPA SERVICES, INC.
By: /s/ Xxxxxxx Xxxxxxx
----------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Senior Vice President and C.F.O.
BRIGHT START, INC.
By: /s/ Xxxxxxx Xxxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Senior Vice President and C.F.O.
LENDERS: U.S. BANK NATIONAL ASSOCIATION
By: /s/ Xxxxx X. Xxx
--------------------------------
Name: Xxxxx X. Xxx
Title: Vice-President
BANK OF AMERICA STRATEGIC SOLUTIONS, INC.
By: /s/ Xxxxxxx Xxxxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Managing Director
ML CBO IV CAYMAN
By: Highland Capital Management, L.P.
as Collateral Manager
By: /s/ Xxxx Xxxxx
--------------------------------
Name: Xxxx Xxxxx
Title: Chief Investment Officer
HIGHLAND LEGACY, LTD
By: Highland Capital Management, L.P.
as Collateral Manager
By: /s/ Xxxx Xxxxx
--------------------------------
Name: Xxxx Xxxxx
Title: Chief Investment Officer
PAMCO CAYMAN LTD
By: Highland Capital Management, L.P.
as Collateral Manager
By: /s/ Xxxx Xxxxx
--------------------------------
Name: Xxxx Xxxxx
Title: Chief Investment Officer
KZH - HIGHLAND 2 LLC
By: /s/ Hi Hua
--------------------------------
Name: Hi Hua
Title: Authorized Agent
SRV - HIGHLAND, INC
By: /s/ Xxx Xxxxxx
--------------------------------
Name: Xxx Xxxxxx
Title: Assistant Vice-President
HIGHLAND CRUSADER OFFSHORE PARTNERS, L.P.
By: /s/ Xxxx Xxxxx
-------------------------------
Name: Xxxx Xxxxx
Title: Chief Investment Officer
