Exhibit 10.2
AMENDMENT NO. 6
to
RECEIVABLES PURCHASE AGREEMENT
THIS AMENDMENT NO. 6 ("Amendment") is entered into as of April 11,
2003 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 (as 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 Section 9.1(k) is hereby deleted in its entirety and replaced
with the following therefor:
(k) as of the end of any fiscal quarter:
(i) the Consolidated Total Leverage Ratio (as defined in the
SSI Loan Agreement) shall be greater than (i) with respect to the fiscal
quarter ending on the last Saturday in January or the last Saturday in
April of each year, 4.25:1.0, and (ii) with respect to the fiscal quarter
ending on the last Saturday in July or the last Saturday in October of
each fiscal year, 5.0:1.0;
(ii) the Consolidated Senior Leverage Ratio (as defined in the
SSI Loan Agreement) shall be greater than (i) with respect to the fiscal
quarter ending in January or April of each year, 3.00:1.0, and (ii) with
respect to the fiscal quarter ending in July or October of each fiscal
year, 3.75:1.0;
(iii) Consolidated Net Worth (as defined in the SSI Loan
Agreement) shall be less than the sum of an amount equal to $285,000,000
increased on a cumulative basis as of the end of each fiscal quarter,
commencing with the fiscal quarter ending April 26, 2003 by an amount
equal to 50% of Consolidated Net Income (as defined in the SSI Loan
Agreement) (to the extent positive) for the fiscal quarter then ended
plus 100% of the proceeds of all equity issuances after the Closing Date
(as defined in the SSI Loan Agreement); or
(iv) the Consolidated Fixed Charges Coverage Ratio (as defined
in the SSI Loan Agreement) shall be less than 3.0:1.0.
1.2 the definition of "Consolidated Leverage Ratio" appearing in
Exhibit I is hereby deleted in its entirety;
1.3 the definition of "SSI Loan Agreement" appearing in Exhibit I is
hereby deleted in its entirety and replaced with the following therefor:
"SSI Loan Agreement" means that Amended and Restated Credit
Agreement dated as of April 11, 2003 (as amended, restated, supplemented
or otherwise modified from time to time) among SSI, the Guarantors and
Lenders identified therein, and Bank of America, N.A., as Administrative
Agent; provided, however, that for purposes of Section 9.1(k), "SSI Loan
Agreement" shall mean such agreement without giving effect to any
amendment, restatement, supplementation, or modification after April 11,
2003.
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.
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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.
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/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Treasurer
SCHOOL SPECIALTY, INC., as Servicer
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Chief Financial Officer
FALCON ASSET SECURITIZATION
CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Authorized Signatory
BANK ONE, NA (MAIN OFFICE CHICAGO),
as a Financial Institution and as Agent
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director, Capital Markets
Signature Page to
Amendment No. 6