Exhibit 10.21
FOURTH AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
FOURTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this
"AMENDMENT"), dated as of December 1, 1998, by and among TLC Multimedia Inc.,
Learning Company Properties Inc., TEC Direct, Inc., Learning Services Inc.,
Skills Bank Corporation, Microsystems Software, Inc., Mindscape, Inc.,
Broderbund Software, Inc. and Xxxxxxx Technology, Inc. (collectively, the
"BORROWERS"), Fleet National Bank, as agent (the "AGENT") and the Lenders whose
signatures appear at the end of this Amendment.
W I T N E S E T H
WHEREAS, the parties hereto are parties to that certain Amended and
Restated Credit Agreement, dated as of May 6, 1998, as amended (the "CREDIT
AGREEMENT"; terms used herein but not defined herein shall have the respective
meanings assigned to such terms in the Credit Agreement);
WHEREAS, the parties hereto wish to amend certain provisions of the
Credit Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
promises and agreements set forth herein, the parties hereto agree as follows:
1. Sub-section (a) of Section 5.12 of the Credit Agreement is hereby
amended and restated in its entirety to read as follows:
"(a) The Borrowers shall provide to the Agent written notice
of any acquisition of any foreign or domestic Subsidiaries of any of
the Borrowers or the Parent. Such notice shall be given within ten (10)
days of the closing of such acquisition, except for (i) any acquisition
involving cash consideration equal to or in excess of Fifty Million
Dollars ($50,000,000), or (ii) any acquisition involving consideration
in the form of stock (to the extent permitted under the terms of the
Loan Documents) with a value equal to or in excess of One Hundred
Million Dollars ($100,000,000), or (iii) any acquisition involving
consideration in the form of a combination of cash and stock (to the
extent permitted under the terms of the Loan Documents) with a combined
value equal to or in excess of One Hundred Million Dollars
($100,000,000); in which case such notice shall be given at least five
(5) Business Days prior to the closing of such acquisition (or any
other date on or prior to the closing of such acquisition agreed to in
writing by the Agent, at its sole discretion, and the Borrowers) and
shall be accompanied by PRO FORMA financial statements reasonably
satisfactory to the Agent giving effect to such acquisition and the
financial statements of such target entity as of the end of its most
recent fiscal year for which such financial statements are available,
including its balance sheets and statements of income."
2. Section 6.4 of the Credit Agreement is hereby amended by: (a)
deleting the figures "$15,000,000" and "$20,000,000" appearing in clauses (i)
and (ii), respectively, of Section 6.4 and inserting in lieu thereof the figure
"$50,000,000", and (b) deleting the figure "$12,500,000" appearing in clause
(iii) of Section 6.4 and inserting in lieu thereof the figure "$25,000,000".
3. Sub-section (c) of Section 7.4 of the Credit Agreement is hereby
amended and restated in its entirety to read as follows:
"(c) No Default or Event of Default or violation of any covenant
under this Agreement shall arise or be reasonably anticipated to arise
as a result of such acquisition; and to the extent such acquisition is
(i) an acquisition involving cash consideration equal to or in excess
of Fifty Million Dollars ($50,000,000), or (ii) an acquisition
involving consideration in the form of stock (to the extent permitted
under the terms of the Loan Documents) with a value equal to or in
excess of One Hundred Million Dollars ($100,000,000), or (iii) an
acquisition involving consideration in the form of a combination of
cash and stock (to the extent permitted under the terms of the Loan
Documents) with a combined value equal to or in excess of One Hundred
Million Dollars ($100,000,000), then the Borrowers shall confirm the
fact that no Default or Event of Default or violation of any covenant
under this Agreement shall arise or be reasonably anticipated to arise
as a result of such acquisition by furnishing to the Agent at least
five (5) Business Days prior to the closing of such acquisition (or any
other date on or prior to the closing of such acquisition agreed to in
writing by the Agent, at its sole discretion, and the Borrowers) PRO
FORMA financial statements reasonably satisfactory to the Agent giving
effect to such acquisition and the financial statements of such target
entity as of the end of its most recent fiscal year for which such
financial statements are available, including its balance sheets and
statements of income; and"
4. This Agreement shall become effective as of November 12, 1998.
5. The Borrowers represent and warrant to the Lenders as follows:
(a) The representations and warranties contained in Section IV of
the Credit Agreement are true and correct in all material respects on and as of
the date hereof (except to the extent that such representations and warranties
expressly relate to an earlier date and except for any changes in Schedule 3
which have not had a material adverse effect on the conditions, assets, business
operations or prospects of the Parent, the Borrowers and their Subsidiaries,
taken as a whole);
(b) After giving effect to the provisions hereof, no Default has
occurred and is continuing;
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(c) The resolutions referred to in Section 3.1(a)(ix) of the Credit
Agreement remain in full force and effect.
6. Except as specifically amended by this Amendment, the Credit
Agreement and all other Loan Documents are hereby ratified, confirmed and
approved. The Credit Agreement, as supplemented and amended by this Amendment,
shall be construed as one and the same instrument. This Amendment may be
executed in any number of counterparts, each of which counterpart, when so
executed, shall be deemed to be an original and such counterparts shall
constitute one and the same instrument.
7. This Amendment shall be governed by and construed in accordance with
the internal laws of The Commonwealth of Massachusetts and the obligations,
rights and remedies of the parties hereunder shall be determined in accordance
with such laws.
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, the undersigned have duly executed this
Fourth Amendment to Amended and Restated Credit Agreement under seal as of the
date first above written.
TLC MULTIMEDIA INC.
LEARNING COMPANY PROPERTIES INC.
TEC DIRECT, INC.
LEARNING SERVICES, INC.
SKILLS BANK CORPORATION
MICROSYSTEMS SOFTWARE, INC.
MINDSCAPE, INC.
BRODERBUND SOFTWARE, INC.
XXXXXXX TECHNOLOGY, INC.
By: /s/ R. Xxxxx Xxxxxx
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Name: R. Xxxxx Xxxxxx
Title: Vice President
FLEET NATIONAL BANK, individually and as
Agent
By: /s/ Xxxxxx X. Head, Jr.
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Name: Xxxxxx X. Head, Jr.
Title: Senior Vice President
XXXXXXX XXXXX CREDIT PARTNERS L.P.
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
Title: Authorized Signatory
STATE STREET BANK AND TRUST
COMPANY
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
Title: Loan Officer
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KEY CORPORATE CAPITAL INC.
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Vice President
BANK OF AMERICA NT & SA
By: /s/ Xxxxxx Xxxxx
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Name: Xxxxxx Xxxxx
Title: Vice President
CITIZENS BANK OF MASSACHUSETTS
By: /s/ R. E. Xxxxx Xxxxxx
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Name: R. E. Xxxxx Xxxxxx
Title: Vice President
FIRST UNION NATIONAL BANK
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title:
THE BANK OF NOVA SCOTIA
By: /s/ Xxx Xxxxxxx
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Name: Xxx Xxxxxxx
Title: Authorized Signatory
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THE CHASE MANHATTAN BANK
By: /s/ Xxxxxxx Xxxxx
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Name: Xxxxxxx Xxxxx
Title: Vice President
PNC BANK, N.A.
By: /s/ Xxxxxxxxx Xxxxxxx
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Name: Xxxxxxxxx Xxxxxxx
Title: Vice President
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