EXHIBIT 10.11
AMENDMENT XX. 0 XXX XXXXXXX XX. 0
TO REVOLVING CREDIT AGREEMENT
AMENDMENT NO. 1 AND CONSENT NO. 1 (this "Amendment and Consent"), dated as
of January 26, 2004, to the REVOLVING CREDIT AGREEMENT, dated as of August 20,
2003, by and among HAIGHTS CROSS OPERATING COMPANY (the "Borrower"), the several
lenders from time to time parties thereto (the "Lenders"), BEAR XXXXXXX
CORPORATE LENDING, INC., as Syndication Agent (in such capacity, the
"Syndication Agent"), and THE BANK OF NEW YORK ("BNY"), as administrative agent
for the Lenders (in such capacity, the "Administrative Agent") (as amended from
time to time, the "Credit Agreement").
RECITALS
I. Unless defined herein, all capitalized terms used herein shall have the
meanings ascribed to them in the Credit Agreement.
II. The Borrower has advised the Administrative Agent and the Lenders that
Holdings and Bear, Xxxxxxx & Co. Inc. ("Bear Xxxxxxx") intend to enter into a
Purchase Agreement (the "Purchase Agreement"), pursuant to which Holdings would
agree to issue Senior Discount Notes due 2011 in an aggregate principal amount
at maturity of up to $135,000,000 (the "Initial Notes"), and which would be
issued by Holdings pursuant to an Indenture (the "Indenture"), between Holdings
and Xxxxx Fargo Bank Minnesota, N.A., or another qualified trustee as Trustee
(the "Trustee"). The Borrower has advised the Administrative Agent and the
Lenders that the Initial Notes, the Exchange Notes (as defined below) and the
Indenture would have restrictive covenants and other terms (other than pricing
terms) substantially as described in the preliminary offering memorandum
relating to the proposed offering (the "Preliminary Offering Memorandum").
III. The holders (including subsequent transferees) of the Initial Notes
would have registration rights substantially as described in the Preliminary
Offering Memorandum pursuant to which Holdings would agree to file with the
Securities and Exchange Commission (the "Commission"), under the circumstances
set forth therein, (a) a registration statement under the Securities Act (the
"Exchange Offer Registration Statement") relating to Holdings' Senior Discount
Notes due 2011 with terms substantially identical to the Initial Notes (the
"Exchange Notes") to be offered in exchange for the Initial Notes (the "Exchange
Offer") and (b) under certain circumstances, a shelf registration statement
pursuant to Rule 415 under the Act (the "Shelf Registration Statement") relating
to the resale by certain holders of the Initial Notes. The Initial Notes and the
Exchange Notes are collectively referred to as the "Holdings Notes" and,
together with the Indenture, are collectively referred to as the "Operative
Documents."
IV. The incurrence by Holdings of the Indebtedness under the Operative
Documents would constitute an Event of Default under Section 8(l) of the Credit
Agreement unless the Required Lenders consent thereto.
V. The Borrower has requested that the Administrative Agent and the
Required Lenders (a) consent to the incurrence by Holdings of the Indebtedness
under the Operative Documents and (b) agree that the incurrence of such
Indebtedness shall not constitute an Event of Default.
VI. The Administrative Agent and the Required Lenders have agreed to the
Borrower's request on the terms and subject to the conditions set forth in this
Amendment and Consent.
Accordingly, in consideration of the covenants, conditions and agreements
hereinafter set forth, and for other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the parties hereto agree
as follows:
1. AMENDMENTS
(a) Section 1 of the Credit Agreement is hereby amended to add the
following Defined Terms in appropriate alphabetical order:
"Amendment No. 1": AMENDMENT XX. 0 XXX XXXXXXX XX. 0, dated as of
January 26, 2004, to the REVOLVING CREDIT AGREEMENT, dated as of August
20, 2003, by and among the Borrower, the Lenders, the Syndication Agent
and the Administrative Agent.
"Amendment No. 1 Effective Date": as defined in Section 3(b) of
Amendment No. 1.
"Commission": as defined in the Recitals of Amendment No. 1.
"Bear Xxxxxxx": as defined in the Recitals of Amendment No. 1.
"Exchange Notes": as defined in the Recitals of Amendment No. 1.
"Exchange Offer Registration Statement": as defined in the Recitals of
Amendment No. 1.
"Exchange Offer": as defined in the Recitals of Amendment No. 1.
"Holdings Notes": as defined in the Recitals of Amendment No. 1.
"Initial Notes": as defined in the Recitals of Amendment No. 1.
"Indenture": as defined in the Recitals of Amendment No. 1.
"Operative Documents": as defined in the Recitals of Amendment No. 1.
"Purchase Agreement": as defined in the Recitals of Amendment No. 1.
"Preliminary Offering Memorandum": as defined in the Recitals of
Amendment No. 1.
"Registration Rights Agreement": as defined in the Recitals of Amendment
No. 1.
"Registration Statements": collectively, the Exchange Offer Registration
Statement and the Shelf Registration Statement.
"Shelf Registration Statement": as defined in the Recitals of Amendment
No. 1.
"Trustee": as defined in the Recitals of Amendment No. 1.
(b) Section 8 of the Credit Agreement is hereby amended by deleting the
word "or" after Section 8(l) and by adding the following Section 8(n) after
Section 8(m);
"(n) Holdings shall amend, modify, supplement or otherwise change, or
consent or agree to any amendment, modification, supplement or other change
to, any of the terms of any of the Operative Documents, except for any
amendment, modification or supplement which:
(i) does not change to an earlier date, the date on which interest on,
principal of, or other amounts due under, the Holding Notes must be paid in
cash under the Holding Notes or other Operative Documents,
(ii) does not change to an earlier date, the date on which the holders
of the Holding Notes can put or require the Indebtedness under the Holding
Notes or other Operative Documents to be repaid or redeemed in cash or such
securities to be purchased or redeemed in cash,
(iii) does not make the covenants, terms and conditions of the
Operative Documents to the extent that they relate to the Borrower and its
Subsidiaries more restrictive or onerous or add to the Operative
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Documents covenants, terms and conditions that are more restrictive or
onerous than, in each case, those contained in the Credit Agreement, and
(iv) could not reasonably be expected to adversely affect the Lenders
or their rights to payment hereunder or their realization upon the
Guarantee Obligations of Holdings in respect of the Obligations hereunder
or any of the Collateral"
2. CONSENTS.
The required Lenders hereby:
(a) consent to the incurrence by Holdings of Indebtedness under the
Operative Documents in an aggregate principal amount at maturity of up to
$135,000,000 and otherwise on the other terms substantially as set forth in the
Preliminary Offering Memorandum, provided that (i) such Indebtedness is
unsecured, (ii) the obligation of Holdings to repay the Indebtedness under the
Operative Documents is effectively subordinated to the obligations of Holdings
and the Borrower to repay any and all of their respective Indebtedness and
obligations to the Administrative and Agent and the Lenders under the Credit
Agreement and the other Loan Documents on the terms set forth in the Preliminary
Offering Memorandum, and (iii) the cash proceeds received by Holdings from the
issuance of the Initial Notes are (A) used solely and exclusively by Holdings to
(1) make Permitted Investments (as such term in defined in the Indenture)
(including without limitation, repurchases of the Holdings Notes) or (2)
purchase Capital Stock in an amount of up to $14,000,000 or (B) contributed by
Holdings to the Borrower as additional equity, without the issuance of any
additional Capital Stock or other securities; and
(b) agree that the incurrence by Holdings of the Indebtedness under the
Operative Documents in accordance with Section 2(a) hereof shall not constitute
an Event of Default.
3. CONDITIONS TO EFFECTIVENESS AND POST EFFECTIVENESS COVENANT.
(a) This Amendment and Consent shall be effective upon the satisfaction of
the following conditions:
(i) the Administrative Agent shall have received this Amendment and
Consent executed by a duly authorized officer or officers of the Borrower
and each of the Guarantors and by each of the Required Lenders; and
(ii) the Administrative Agent shall have received a copy of the
Preliminary Offering Memorandum in the form distributed to the potential
investors.
(b) The date on which all of the conditions set forth in Section 3(a) are
satisfied is referred to as the "Amendment No. 1 Effective Date."
(c) The Borrower agrees that (i) promptly upon its receipt thereof to
furnish to the Administrative Agent copies of the Indenture, the Holding Notes
and any other documents relating thereto as the Administrative Agent may
reasonably request, (ii) each month it will furnish to the Administrative Agent
and the Lenders a report regarding the use of the proceeds of the Holdings Notes
in the immediately preceding month, such report to be furnished so long as any
of the cash proceeds from the issuance of the Initial Notes are held by
Holdings.
4. MISCELLANEOUS
(a) The Borrower hereby:
(i) acknowledges and reaffirms its obligations under, and confirms the
validity and enforceability of, the Credit Agreement and the other Loan
Documents;
(ii) represents and warrants that there exists no Default or Event of
Default and no Default or Event of Default will result from the
consummation of the transactions described in this Amendment and Consent;
and
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(iii) represents and warrants that the representations and warranties
contained in the Credit Agreement (other than the representations and
warranties made as of a specific date) are true and correct in all material
respects on and as of the date hereof.
(b) Each of the Guarantors, by signing this Amendment and Consent, hereby:
(i) acknowledges and consents to the execution of this Amendment and
Consent; and
(ii) acknowledges and reaffirms its obligations under, and confirms
the validity and enforceability of, the Guarantee and Collateral Agreement
and the other Loan Documents to which it is a party.
(c) This Amendment and Consent may be executed in any umber of counterparts
and by facsimile, each of which shall be an original and all of which shall
constitute one agreement. It shall not be necessary in making proof of this
Amendment and Consent to produce or account for more than one counterpart signed
by the party to be charged.
(d) This Amendment and Consent is being delivered in and is intended to be
performed in the State of New York and shall be construed and enforceable in
accordance with, and be governed by, the internal laws of the State of New York
without regard to principles of conflict of laws.
(e) The Borrower agrees to pay the reasonable fees and expenses of the
Administrative Agent's counsel in connection with this Amendment and Consent.
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HAIGHTS CROSS AMENDMENT NO. 1
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written.
BORROWER:
HAIGHTS CROSS OPERATING COMPANY
By: /s/ XXXX X. XXXXXX
------------------------------------
Name: Xxxx X. Xxxxxx
Title: EVP & CFO
GUARANTORS:
HAIGHTS CROSS COMMUNICATIONS, INC.
By: /s/ XXXX X. XXXXXX
------------------------------------
Name: Xxxx X. Xxxxxx
Title: EVP & CFO
SUNDANCE/NEWBRIDGE
EDUCATIONAL PUBLISHING, LLC
By: /s/ XXXX X. XXXXXX
------------------------------------
Name: Xxxx X. Xxxxxx
Title: VP
TRIUMPH LEARNING, LLC
By: /s/ XXXX X. XXXXXX
------------------------------------
Name: Xxxx X. Xxxxxx
Title: VP
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RECORDED XXXXX, XXX
By: /s/ XXXX X. XXXXXX
----------------------------------
Name: Xxxx X. Xxxxxx
Title: VP
OAKSTONE PUBLISHING, LLC
By: /s/ XXXX X. XXXXXX
------------------------------------
Name: Xxxx X. Xxxxxx
Title: VP
CHELSEA HOUSE PUBLISHERS, LLC
By: /s/ XXXX X. XXXXXX
------------------------------------
Name: Xxxx X. Xxxxxx
Title: VP
THE CORIOLIS GROUP, LLC
By: /s/ XXXX X. XXXXXX
------------------------------------
Name: Xxxx X. Xxxxxx
Title: VP
X X XXXXX LIMITED
By: /s/ XXXX X. XXXXX
------------------------------------
Name: Xxxx X. Xxxxx
Title: Director
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THE BANK OF NEW YORK,
INDIVIDUALLY AND AS ADMINISTRATIVE
AGENT
By: /s/ XXXXXX X. XXXXXXX
------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
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BEAR XXXXXXX CORPORATE LENDING, INC.,
INDIVIDUALLY AND AS SYNDICATION AGENT
By: /s/ XXXXXX XXXXXXXXXXXX
------------------------------------
Name: Xxxxxx Xxxxxxxxxxxx
Title: Authorized Agent
CIT LENDING SERVICES CORPORATION
By: /s/ XXXXXXX X. XXXXXXX
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
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