EXHIBIT 4.4
FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT, dated as
of April 1, 2002 (this "Amendment"), is by and between CHILDTIME CHILDCARE,
INC., an Illinois corporation (the "Company"), and BANK ONE, MICHIGAN, a
Michigan banking corporation (the "Bank").
INTRODUCTION
A. The Company and the Bank have entered into an Amended and Restated
Credit Agreement, dated as of January 31, 2002, as amended or modified from time
to time (the "Credit Agreement").
B. The Company has requested the Bank to amend the Credit Agreement in
certain respects, and the Bank is willing to do so on the terms and conditions
set forth in this Amendment.
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein and in the Credit Agreement contained, the parties hereto
agree as follows:
ARTICLE 1. AMENDMENT TO CREDIT AGREEMENT
The Credit Agreement hereby is amended as follows:
1.1 The definition of the term "Letter of Credit" in Section
1.1 is amended and restated in full as follows:
"Letter of Credit" means a standby letter of credit having a
stated expiry date or date upon which the draft must be reimbursed not
later than twelve months after the Termination Date or, in the case of
up to an aggregate outstanding principal amount of $1,200,000 of Letter
of Credit Advances, not later than December 31, 2005, issued by the
Bank for the account of the Company under an application and related
documentation acceptable to the Bank requiring, among other things,
immediate reimbursement by the Company to the Bank in respect of all
drafts or other demand for payment honored thereunder and all expenses
paid or incurred by the Bank relative thereto.
ARTICLE 2. REPRESENTATIONS AND WARRANTIES
In order to induce the Bank to enter into this Amendment, the
Company represents and warrants that:
2.1 The execution, delivery and performance by the Company of
this Amendment are within its corporate powers, have been duly authorized by all
necessary corporate action and are not in contravention of any law, rule or
regulation, or any judgment, decree, writ, injunction, order or award of any
arbitrator, court or governmental authority, or of the terms of the Company's
charter or by-laws, or of any contract or undertaking to which the Company is a
party or by which the Company or its property is or may be bound or affected.
2.2 This Amendment is a legal, valid and binding obligation of
the Company, enforceable against the Company in accordance with its terms.
2.3 No consent, approval or authorization of or declaration,
registration or filing with any governmental authority or any nongovernmental
person or entity, including without limitation any creditor or stockholder of
the Company, is required on the part of the Company in connection with the
execution, delivery and performance of this Amendment or the transactions
contemplated hereby or as a condition to the legality, validity or
enforceability of this Amendment
2.4 After giving effect to the amendments contained in Article 1
of this Amendment, the representations and warranties contained in Article IV of
the Credit Agreement and in the Loan Documents are true on and as of the date
hereof with the same force and effect as if made on and as of the date hereof,
and no Default or Event of Default has occurred and is continuing.
ARTICLE 3. MISCELLANEOUS
3.1 If the Company shall fail to perform or observe any term,
covenant or agreement in this Amendment, or any representation or warranty made
by the Company in this Amendment shall prove to have been incorrect in any
material respect when made, such occurrence shall be deemed to constitute an
Event of Default.
3.2 All references to the Credit Agreement in any other document,
instrument or certificate referred to in the Credit Agreement or delivered in
connection therewith or pursuant thereto hereafter shall be deemed references to
the Credit Agreement, as amended hereby
3.3 The Loan Documents and, subject to the amendments herein
provided, the Credit Agreement shall in all respects continue in full force and
effect.
3.4 Capitalized terms used but not defined herein shall have the
respective meanings ascribed thereto in the Credit Agreement.
3.5 This Amendment shall be governed by and construed in
accordance with the laws of the State of Michigan.
3.6 The Company agrees to pay the reasonable fees and expenses of
Xxxxxxxxx Xxxxxx PLLC, counsel for the Bank, in connection with the negotiation
and preparation of this
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Amendment and the consummation of the transactions contemplated hereby, and in
connection with advising the Bank as to its rights and responsibilities with
respect thereto.
3.7 This Amendment may be executed upon any number of
counterparts with the same effect as if the signatures thereto were upon the
same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered as of the day and year first-above written.
CHILDTIME CHILDCARE, INC.
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------------
Its: CFO and Treasurer
BANK ONE, MICHIGAN
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------------
Its: First Vice President
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GUARANTOR ACKNOWLEDGEMENT
Each of the undersigned hereby acknowledges that it has reviewed and
fully consents to the foregoing First Amendment to Amended and Restated Credit
Agreement (the "Amendment"), that the Guaranty Agreements and all other Loan
Documents made by each of the undersigned in favor of the Bank continue in full
force and each of the undersigned acknowledges and agrees that it has no
defenses, counterclaims or offsets with respect thereof. All references to the
Credit Agreement in the Guaranty Agreements and in all other Loan Documents or
any other document, instrument or certificate referred to in the Credit
Agreement or delivered in connection therewith or pursuant thereto, hereafter
shall be deemed references to the Credit Agreement, as amended by the Amendment.
Except as otherwise expressly set forth herein, capitalized terms used but not
defined herein shall have the respective meanings ascribed thereto in the
Amendment or the Credit Agreement, as the case may be.
CHILDTIME LEARNING CENTERS, INC.
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------------
Its: CFO and Treasurer
CHILDTIME CHILDCARE-PMC, INC.
By: /s/ Xxxxxx X. Xxxxxxxxxx
-------------------------------------
Its: President and Secretary
CHILDTIME CHILDCARE-MICHIGAN, INC.
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------
Its: President
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