Exhibit 10.2
AMENDMENT NO. 1
to
RECEIVABLES PURCHASE AGREEMENT
Dated as of January 1, 2001
THIS AMENDMENT NO. 1 ("Amendment") is entered into as of January 1,
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2001 by and among New School, Inc., as Seller ("Seller"), School Specialty,
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Inc., as Servicer ("SSI"), Falcon Asset Securitization Corporation ("Falcon"),
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the Financial Institutions party hereto, and Bank One, NA (Main Office Chicago),
as agent (the "Agent").
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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 the same may be amended, restated, supplemented or otherwise modified
from time to time, the "Purchase Agreement"). Capitalized terms used herein and
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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 Exhibit I to 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
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the satisfaction of the condition precedent set forth in Section 2 below, the
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Purchase Agreement is hereby amended as follows:
1.1 The definition of "Loss Reserve" appearing in Exhibit I thereof
is hereby deleted in its entirety and replaced with the following therefor:
"Loss Reserve" means, at any time, an amount equal to the greater of
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(i) the product of (a) 3 multiplied by (b) the Allowance for Doubtful
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Accounts of the Seller Parties as of the close of business of the
Servicer on such date (net of any increase in such Allowance for
Doubtful Accounts made with respect to Receivables acquired in
connection with any Acquisition, which such increase was made in
accordance with GAAP either (x) for purchase accounting purposes and
not for purposes related in any way to the expected collectibility of
such acquired Receivables or (y) in anticipation of Dilutions with
respect to such acquired Receivables), and (ii) 10% of the Net
Receivables Balance as of the close of business of the Servicer on
such date.
1.2 The definition of "Traditional Receivables" appearing in Exhibit
I thereof is hereby deleted in its entirety and replaced with the following
therefor:
"Traditional Receivables" means Receivables arising from a line of
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business identified as "Traditional", "Sax" or "Frey" by the
Originator or which are included on the Originator's "SFD" reporting
system.
SECTION 2. Condition Precedent. This Amendment shall become
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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
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and the Servicer.
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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.
SECTION 4. Reference to and Effect on the Investor Agreement.
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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.
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SECTION 5. GOVERNING LAW. THIS AMENDMENT SHALL BE CONSTRUED IN
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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
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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
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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/ Mary M. Kabacinski
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Name: Mary M. Kabacinski
Title: Treasurer
SCHOOL SPECIALTY, INC., as Servicer
By: /s/ Mary M. Kabacinski
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Name: Mary M. Kabacinski
Title: CFO
FALCON ASSET SECURITIZATION CORPORATION
By: /s/ Elizabeth Chung
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Name: Elizabeth Chung
Title: Authorized Signatory
BANK ONE, NA (MAIN OFFICE CHICAGO),
as a Financial Institution and as Agent
By: /s/ Elizabeth Chung
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Name: Elizabeth Chung
Title: Authorized Signatory
Signature Page to Amendment No. 1