LIMITED WAIVER, CONSENT AND THIRD AMENDMENT TO CREDIT AGREEMENT
Exhibit 10.1
LIMITED WAIVER, CONSENT AND THIRD AMENDMENT TO CREDIT AGREEMENT
THIS LIMITED WAIVER, CONSENT AND THIRD AMENDMENT TO CREDIT AGREEMENT (this “Third
Amendment”) is entered into as of February 16, 2007 (the “Third Amendment Effective
Date”) among THE PRINCETON REVIEW, INC., a Delaware corporation (“Borrower”), the other
Loan Parties signatory hereto, the Lenders a party hereto and Xxxxx Capital Incorporated, a New
York corporation, as administrative agent for the Lenders (“Administrative Agent”).
W I T N E S S E T H:
WHEREAS, Borrower, the other Loan Parties, Lenders and Administrative Agent are parties to
that certain Credit Agreement dated as of April 10, 2006, pursuant to which Lenders extended a
revolving credit facility to Borrower in the amount of Six Million Dollars ($6,000,000), as amended
by that certain First Amendment to Credit Agreement dated as of May 25, 2006, pursuant to which
Lenders increased the revolving credit facility to Borrower to the amount of Ten Million Dollars
($10,000,000), as further amended by that certain Limited Waiver and Second Amendment to Credit
Agreement dated as of November 3, 2006, pursuant to which Lenders temporarily increased the
revolving credit facility to Fifteen Million Dollars ($15,000,000) (the “Credit
Agreement”);
WHEREAS, Borrower and MRU Holdings, Inc., a Delaware corporation (the “Buyer”) intend
to enter into an Asset Purchase Agreement dated the date hereof (the “Asset Purchase
Agreement”) providing, among other things, for the sale of “Purchased Assets” (as defined in
the Asset Purchase Agreement) of the Borrower (the purchase of the Purchased Assets pursuant to the
Asset Purchase Agreement referred to herein as, the “Transaction”);
WHEREAS, Section 7.8 of the Credit Agreement limits the sale, transfer, conveyance,
assignment or other disposition by any Loan Party of any of its Accounts, Inventory, Intellectual
Property or other assets, outside of the ordinary course of business, other than transactions that
in the aggregate are less than $1,000,000 and therefore prohibits the Transaction;
WHEREAS, Borrower has requested the Lenders and Administrative Agent consent to the
Transaction and waive the provisions of Section 7.8 of the Credit Agreement solely for the
purpose of completing the Transaction;
WHEREAS, the parties to the Credit Agreement desire to waive compliance with certain
provisions of the Credit Agreement and amend the terms of the Credit Agreement to, among other
things, decrease the Revolving Loan Commitment to twelve million dollars ($12,000,000) upon the
terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual agreements, provisions and covenants contained
herein, the parties agree as follows:
1. Defined Terms. Capitalized terms used but not defined herein shall have the
meanings ascribed to them in the Credit Agreement.
2. Limited Waiver and Consent.
a. At the Borrower’s request, the Lenders hereby waive the Borrower’s violation of the
covenant set forth in Section 7.10(b) of the Credit Agreement for the period beginning December 31,
2006 and ending March 31, 2007, and after which time such covenant shall be in full force and
effect.
b. Subject to the conditions set forth in Section 4 hereof, the Lenders and Administrative
Agent hereby consent to the Transaction, and solely in connection therewith, waive the terms of
Section 7.8 of the Credit Agreement. Administrative Agent, on behalf of itself and the
Lenders and each of their respective present, former and future shareholders, directors, officers,
employees, advisors, agents, consultants, partners, subsidiaries, affiliates, representatives,
predecessors, successors, assigns and all other persons or entities acting on their behalf or at
their respective direction or control (collectively, the “Lender Releasors”), hereby
releases, remises, acquits, satisfies and forever discharges any and all rights and interests any
Lender Releasor has in the Purchased Assets. Administrative Agent and the Lenders each hereby
consent to the filing by the Buyer of the UCC3 statements relating to the release of the security
interest of the Lenders in the Purchased Assets and attached hereto as Exhibit A. In addition,
Administrative Agent and the Lenders hereby agree to take any and all additional action (including,
without limitation, the execution and delivery of requisite documentation related to the release of
any intellectual property that comprises the Purchased Assets) reasonably requested by the Buyer to
evidence the releases with respect to the Purchased Assets contemplated by the Transaction.
3. Amendments to Credit Agreement. Upon satisfaction of the conditions set forth in
Section 4 hereof, the Credit Agreement is hereby amended as follows:
(i) Schedule 1.1 (Definitions) of the Credit Agreement is hereby amended by:
(a) deleting the definition of “Commitments” in its entirety and replacing it as
follows:
“ ‘Commitments’ shall mean (a) as to any Lender, the aggregate of
such Lender’s Revolving Loan Commitment as set forth on the signature page
to the Third Amendment (as adjusted to reflect any assignments as permitted
hereunder) and (b) as to all Lenders, the aggregate of all Lenders’
Revolving Loan Commitments which aggregate commitment shall be twelve
million dollars ($12,000,000).”
(b) deleting the definition of “New Commitment” in its entirety.
(c) deleting the definition of “Revolver Reduction Date” in its entirety.
(d) deleting the definition of “Revolving Loan Commitment” in its entirety and
replacing it as follows:
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“ ‘Revolving Loan Commitment’ shall mean (a) as to any Lender, the
aggregate commitment of such Lender to make Revolving Credit Advances as set
forth in the signature page to the Third Amendment (as adjusted to reflect
any assignments as permitted hereunder) and (b) as to all Lenders, the
aggregate commitment of all Lenders to make Revolving Credit Advances, which
aggregate commitment shall be twelve million dollars ($12,000,000) beginning
on the Third Amendment Effective Date and at all times thereafter.”
(e) inserting the following definitions in appropriate alphabetical order:
“ ‘Third Amendment’ shall mean that certain Limited Waiver, Consent
and Third Amendment to Credit Agreement, by and among Borrower, the other
Loan Parties thereto, Administrative Agent and the Lenders, dated as of
February 16, 2007.’ ”
“ ‘Third Amendment Effective Date’ has the meaning given to such
term by the Third Amendment.’ ”
(ii) The fourth sentence of Section 2.1(a)(i) of the Credit Agreement is deleted in its
entirety and the following is substituted therefore:
“The aggregate amount of Revolving Credit Advances outstanding shall not exceed at
any time the lesser of (A) the Maximum Amount and (B) the Borrowing Base plus two
million dollars ($2,000,000) (“Borrowing Availability”).”
(iii) Section 2.5(a) of the Credit Agreement is hereby deleted in its entirety and the
following is substituted therefor:
“Borrower shall pay interest to Administrative Agent, for the ratable benefit of
Lenders in accordance with the Loans being made by each Lender, in arrears on each
applicable Interest Payment Date, with respect to the Revolving Credit Advances, the
Index Rate plus the Revolver Index Margin per annum or, at the election of Borrower,
the applicable LIBOR Rate plus the Revolver LIBOR Margin per annum, based on the
aggregate Revolving Credit Advances outstanding from time to time. The Revolver
Index Margin will be 3.00% per annum and the Revolver LIBOR Margin will be 4.00% per
annum; provided, that with respect to the aggregate Revolving Credit
Advances outstanding in excess of the lesser of (i) the Borrowing Base and (ii)
$10,000,000, the Revolver Index Margin will be 4.00% per annum and the Revolver
LIBOR Margin will be 5.00% per annum.”
(iv) Section 2.3(a) of the Credit Agreement is hereby deleted in its entirety and the
following is substituted therefor:
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“Voluntary Prepayments. Borrower may at any time on at least five (5) days’
prior written notice to Administrative Agent voluntarily prepay all or part of the
Revolving Loan and permanently reduce (but not terminate) the Revolving Loan
Commitment; provided that (i) any such prepayments or reductions shall be in
a minimum amount of $250,000 and integral multiples of $100,000 in excess of such
amounts, and (ii) the Revolving Loan Commitment shall not be reduced to an amount
less than $3,000,000. In addition, Borrower may at any time on at least five (5)
days’ prior written notice to Administrative Agent terminate the Revolving Loan
Commitment; provided that upon such termination, the entire portion of the principal
amount of the Revolving Loan then outstanding and all Obligations related thereto
shall be immediately due and payable in full. Any such voluntary prepayment and any
such reduction or termination of the Revolving Loan Commitment must be accompanied by
the payment of the fee required by Section 2.9(c), if any, plus the payment
of any LIBOR funding breakage costs in accordance with Section 2.13(b). Upon
any such prepayment and reduction or termination of the Revolving Loan Commitment,
Borrower’s right to request Revolving Credit Advances shall simultaneously be
permanently reduced or terminated, as the case may be. For the avoidance of doubt,
no voluntary repayment of all or part of the Revolving Loan shall be deemed to be a
prepayment under this Section 2.3 unless accompanied by a notice of permanent
reduction of the Revolving Loan Commitment.”
(v) Section 2.3(b)(i) of the Credit Agreement is hereby deleted in its entirety and the
following is substituted therefor:
“If at any time, the outstanding balance of the aggregate Revolving Loan exceeds the
lesser of (A) the Maximum Amount and (B) the Borrowing Base plus two million dollars
($2,000,000), Borrower shall, within five (5) days, repay the aggregate outstanding
Revolving Credit Advances to the extent required to eliminate such excess.”
(vi) Section 2.9(e) of the Credit Agreement is hereby deleted in its entirety.
(vii) Section 2.11(b) of the Credit Agreement is hereby deleted in its entirety and the
following is substituted therefor:
“Administrative Agent is authorized to, and at its sole election may, charge to the
Revolving Loan balance on behalf of Borrower and cause to be paid all Fees,
expenses, Charges, costs (including insurance premiums in accordance with
Section 6.4(a)) and interest and principal, other than principal of the
Revolving Loan, owing by Borrower under this Agreement or any of the other Loan
Documents if and to the extent Borrower fails to promptly pay any such amounts as
and when due, even if such charges would cause the balance of the aggregate
Revolving Credit Advances to exceed Borrowing Availability. At Administrative
Agent’s option and to the extent permitted by law, any charges so made shall
constitute part of the Revolving Loan hereunder. ”
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4. Conditions. The effectiveness of this Third Amendment is subject to the following
conditions:
a. The execution and delivery of this Third Amendment by Borrower and the other Loan
Parties, Lenders and Administrative Agent;
b. Borrower shall have paid to Administrative Agent a closing fee in the amount of
$100,000, and shall have reimbursed Administrative Agent and Lenders for all other
fees, costs and expenses, including without limitation, reasonable attorney fees and
expenses, as of the Third Amendment Effective Date.
c. Administrative Agent shall have received (i) an executed copy of the Asset
Purchase Agreement in form and substance satisfactory to Administrative Agent and
attached hereto as Exhibit 4C, and (ii) evidence that the Transaction has
been consummated on terms satisfactory to Administrative Agent.
5. Representations and Warranties. Each Loan Party hereby represents and warrants to
Administrative Agent and each Lender as follows:
a. Except as provided on Exhibit 5A hereto, the representations and
warranties made by such Loan Party contained in the Loan Documents are true and
correct in all material respects as of the date hereof (except to the extent such
representations and warranties expressly refer to an earlier date, in which case
they shall be true and correct as of such earlier date, and except to the extent
such representations and warranties are qualified by materiality, contain dollar
thresholds or have Material Adverse Effect qualifiers, in which case, such
representations and warranties shall be true and correct in all respects);
b. such Loan Party is a corporation or limited liability company, duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
incorporation or formation, as applicable;
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c. such Loan Party has the power and authority to execute, deliver and perform its
obligations under this Third Amendment and the Credit Agreement, as amended hereby;
d. the execution, delivery and performance by such Loan Party of this Third
Amendment and the Credit Agreement, as amended hereby, have been duly authorized by
all necessary action;
e. this Third Amendment and the Credit Agreement, as amended hereby, constitutes the
legal, valid and binding obligation of such Loan Party, enforceable against such
Person in accordance with their terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, or similar laws affecting the enforcement of
creditor’s rights generally or by equitable principles relating to enforceability;
and
f. except as set forth in Section 2 of the Limited Waiver and Second Amendment to
Credit Agreement, by and among Borrower, the other Loan Parties thererto,
Administrative Agent and Lenders, dated as of November 3, 2006, no Default or Event
of Default exists (and the Loan Parties specifically acknowledge that any
misrepresentation of the provisions of this Section 5 shall constitute such an Event
of Default).
6. No Modification. Except as amended hereby, the Credit Agreement and the other Loan
Documents remain unmodified and in full force and effect. All references in the Loan Documents to
the Credit Agreement shall be deemed to be references to the Credit Agreement as amended hereby.
7. Counterparts. This Third Amendment may be executed by one or more of the parties
to this Third Amendment and any number of separate counterparts, each of which when so executed,
shall be deemed an original and all said counterparts when taken together shall be deemed to
constitute but one and the same instrument.
8. Successors and Assigns. This Third Amendment shall be binding upon and inure to
the benefit of Borrower and each Loan Party and their successors and assigns and Administrative
Agent and Lenders and their successors and assigns.
9. Further Assurance. Borrower hereby agrees from time to time, as and when requested
by Administrative Agent or any Lender, to execute and deliver or cause to be executed and
delivered, all such documents, instruments and agreements and to take or cause to be taken such
further or other action as Administrative Agent or such Lender may reasonably deem necessary or
desirable in order to carry out the intent and purposes of this Third Amendment, the Credit
Agreement and the Loan Documents.
10. GOVERNING LAW. THIS THIRD AMENDMENT SHALL BE GOVERNED BY AND SHALL BE CONSTRUED
AND ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT
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REGARD TO CONFLICTS OF LAW PRINCIPLES.
11. Severability. Wherever possible, each provision of this Third Amendment shall be
interpreted in such manner as to be effective and valid under applicable law, but if any provision
of this Third Amendment shall be prohibited by or invalid under such law, such provision shall be
ineffective to the extent of such prohibition or invalidity without invalidating the remainder of
such provision or the remaining provisions of this Third Amendment.
12. Reaffirmation. Each of the Loan Parties as debtor, grantor, pledgor, guarantor,
assignor, or in any other similar capacity in which such Loan Party grants liens or security
interests in its property or otherwise acts as accommodation party or guarantor, as the case may
be, hereby (i) ratifies and reaffirms all of its payment and performance obligations, contingent or
otherwise, under each of the Loan Documents to which it is a party (after giving effect hereto) and
(ii) to the extent such Loan Party granted liens on or security interests in any of its property
pursuant to any such Loan Document as security for or otherwise guaranteed Borrower’s Obligations
under or with respect to the Loan Documents, ratifies and reaffirms such guarantee and grant of
security interests and liens and confirms and agrees that such security interests and liens
hereafter secure all of the Obligations as amended hereby. Each of the Loan Parties hereby
consents to this Third Amendment and acknowledges that each of the Loan Documents remains in full
force and effect and is hereby ratified and reaffirmed. Except as set forth in Section 2 of this
Third Amendment, the execution of this Third Amendment shall not operate as a waiver of any right,
power or remedy of Administrative Agent or Lenders, constitute a waiver of any provision of any of
the Loan Documents or serve to effect a novation of the Obligations.
13. Release. The Borrower hereby remises, releases, acquits, satisfies and forever
discharges the Lenders and Administrative Agent, their agents, employees, officers, directors,
predecessors, attorneys and all others acting or purporting to act on behalf of or at the direction
of the Lenders and Administrative Agent (“Releasees”), of and from any and all manner of
actions, causes of action, suit, debts, accounts, covenants, contracts, controversies, agreements,
variances, damages, judgments, claims and demands whatsoever, in law or in equity, which any of
such parties ever had, now has or, to the extent arising from or in connection with any act,
omission or state of facts taken or existing on or prior to the date hereof, may have after the
date hereof against the Releasees, for, upon or by reason of any matter, cause or thing whatsoever
through the date hereof. Without limiting the generality of the foregoing, the Borrower waives and
affirmatively agrees not to allege or otherwise pursue any defenses, affirmative defenses,
counterclaims, claims, causes of action, setoffs or other rights they do, shall or may have as of
the date hereof, including, but not limited to, the rights to contest any conduct of the Lenders
and Administrative Agent or other Releasees on or prior to the date hereof.
[Remainder of Page Intentionally Left Blank; Signature Page Follows]
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IN WITNESS WHEREOF, each of the undersigned has executed this Third Amendment as of the
date set forth above.
| BORROWER: | ||||||
| THE PRINCETON REVIEW, INC., a Delaware corporation | ||||||
| By: | /s/ Xxxx Xxxxxxx | |||||
| Name: Xxxx Xxxxxxx Title: President and Chief Operating Officer |
||||||
| GUARANTORS: | ||||||
| PRINCETON REVIEW
OPERATIONS, L.L.C., a Delaware limited liability company |
||||||
| By: | /s/ Xxxx Xxxxxxx | |||||
| Name: Xxxx Xxxxxxx Title: Chief Operating Officer |
||||||
[Signature Page to Third Amendment to Credit Agreement]
| ADMINISTRATIVE AGENT: | ||||||||
| XXXXX CAPITAL INCORPORATED | ||||||||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||||||
| Name: Xxxxxxx X. Xxxxxxx Title: Chief Investment Officer |
||||||||
| LENDERS: | ||||||||
| XXXXX CAPITAL CP FUNDING LLC | ||||||||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||||||
| Name: Xxxxxxx X. Xxxxxxx Title: Chief Investment Officer |
||||||||
| Revolving Loan Commitment: | ||||||||
| On and After the Third Amendment Effective Date: | $ | 12,000,000 | ||||||
[Signature Page to Third Amendment to Credit Agreement]
