Exhibit 10.4
AMENDMENT NO. 5
to
RECEIVABLES PURCHASE AGREEMENT
THIS AMENDMENT NO. 5 ("Amendment") is entered into as of November 19, 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, that certain Amendment
No. 3 dated as of November 20, 2001 and that certain Amendment No. 4 dated as of
May 2, 2002 (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 the definition of "Dilution Ratio" appearing in Exhibit I is hereby
deleted in its entirety and replaced with the following therefor:
"Dilution Ratio" means, for any Collection Period, a percentage equal to (i)
the aggregate amount of Dilutions during such Collection Period, divided by
(ii) the aggregate Receivables generated during the Collection Period which
immediately preceded such Collection Period.
1.2 the definition of "Dilution Reserve" appearing in Exhibit I is hereby
deleted in its entirety and replaced with the following therefor:
"Dilution Reserve" means, on any date, an amount equal to the greater of (A)
the product of (i) the greater of (a) 12.0% and (b) the Dilution Reserve
Ratio then in effect times (ii) the Net Receivables Balance as of the close
of business on the immediately preceding Business Day or (B) $8,000,000.
1.3 the definition of "Dilution Trigger Ratio" appearing in Exhibit I is
hereby deleted in its entirety and replaced with the following therefor:
"Dilution Trigger Ratio" means, for any Collection Period, a percentage equal
to (i) the aggregate amount of Dilutions during such Collection Period,
divided by (ii) the aggregate Outstanding Balance of all Receivables on the
first day of such Collection Period.
1.4 the definition of "Liquidity Termination Date" appearing in Exhibit I
is hereby amended to delete the date "November 19, 2002" appearing therein and
to replace the date "November 18, 2003" therefor.
SECTION 2. Condition Precedent. This Amendment shall become effective and
be deemed effective, as of the date first above written, upon receipt by the
Agent of one copy of this Amendment duly executed by each of the parties hereto.
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 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.
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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: Chief Financial Officer
FALCON ASSET SECURITIZATION
CORPORATION
By: /s/ Xxxx X. Xxx
----------------------------
Name: Xxxx X. Xxx
Title: Authorized Signatory
BANK ONE, NA (MAIN OFFICE CHICAGO),
as a Financial Institution and as
Agent
By: /s/ Xxxx X. Xxx
----------------------------
Name: Xxxx X. Xxx
Title: Authorized Signatory
Signature Page to
Amendment No. 5
