EXHIBIT 4.9
CONSENT
THIS CONSENT (this "Amendment") dated as of April 26, 2002 relating to the
Credit Agreement referenced below is by and among School Specialty, Inc., a
Wisconsin corporation (the "Borrower"), the Subsidiaries of the Borrower
identified as "Guarantors" on the signature pages hereto, the Lenders identified
on the signature pages hereto and Bank of America, N.A., as Administrative Agent
(in such capacity, the "Administrative Agent"). Terms used herein but not
otherwise defined herein shall have the meanings provided to such terms in the
Credit Agreement.
W I T N E S S E T H
WHEREAS, a $350 million credit facility has been extended to the Borrower
pursuant to the terms of that Amended and Restated Credit Agreement dated as of
September 30, 1998 (as amended, modified, supplemented, increased and extended
from time to time, the "Credit Agreement") by and among the Borrower, the
Guarantors, the Lenders and the Administrative Agent;
WHEREAS, the Borrower has requested a consent under the Credit Agreement;
and
WHEREAS, the Required Lenders have agreed to the requested consent on the
terms and conditions set forth herein.
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Consent to Release of Liens. Pursuant to the Consent and Amendment dated
November 20, 2000 (the "Consent"), the Required Lenders (i) approved the
Borrower and certain of its Subsidiaries entering into a Securitization
Transaction on substantially the terms set forth in the Consent (the "Permitted
Securitization Transaction") and (ii) authorized and directed the Administrative
Agent to enter into an Intercreditor Agreement on substantially the terms set
forth in the Consent (the "Intercreditor Agreement"). The Borrower intends to
cause Premier Agendas, Inc., a wholly owned Subsidiary of the Borrower and a
Guarantor under the Credit Agreement, to become a party to the Permitted
Securitization Transaction. In connection therewith, the Required Lenders hereby
(i) consent to the release by the Administrative Agent of the security interest
and liens of the Administrative Agent, for the benefit of the Lenders, in all of
the Property described on Schedule 1 hereto and (ii) authorize and direct the
Administrative Agent to enter into an amendment to the Intercreditor Agreement
in connection with the joinder of Premier Agendas, Inc. to the Permitted
Securitization Transaction.
2. Conditions Precedent. This Amendment shall be effective as of the date
hereof upon receipt by the Administrative Agent of multiple counterparts of this
Amendment executed by the Credit Parties and the Required Lenders;
3. Reaffirmation of Representations and Warranties. The Credit Parties
hereby affirm that the representations and warranties set forth in the Credit
Documents are true and correct as of the date hereof after giving effect to this
Amendment (except those that expressly relate to an earlier period).
4. Reaffirmation of Guaranty. Each of the Guarantors (i) acknowledges and
consents to all of the terms and conditions of this Amendment, (ii) affirms all
of its obligations under the Credit Documents
and (iii) agrees that this Amendment and all documents executed in connection
herewith do not operate to reduce or discharge the Guarantors' obligations under
the Credit Agreement and the other Credit Documents.
5. No Other Changes. Except as modified hereby, all of the terms and
provisions of the Credit Agreement and the other Credit Documents (including the
schedules and exhibits thereto) shall remain in full force and effect.
6. Cost and Expenses. The Borrower agrees to pay all reasonable costs and
expenses of the Administrative Agent in connection with the preparation,
execution and delivery of this Amendment, including without limitation the
reasonable fees and expenses of Moore & Van Allen, PLLC.
7. Counterparts. This Amendment may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed an
original and it shall not be necessary in making proof of this Amendment to
produce or account for more than one such counterpart.
8. Governing Law. This Amendment shall be deemed to be a contract made
under, and for all purposes shall be construed in accordance with, the laws of
the State of New York.
[Remainder of Page Intentionally Left Blank]
2
IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of
this Amendment to be duly executed and delivered as of the date first above
written.
BORROWER: SCHOOL SPECIALTY, INC.
a Wisconsin corporation
By: /s/ Mary M. Kabacinski
-----------------------------------------
Name: Mary M. Kabacinski
Title: Chief Financial Officer
GUARANTORS: CHILDCRAFT EDUCATION CORP.,
a New York corporation
CLASSROOMDIRECT.COM, LLC,
a Delaware limited liability company
BIRD-IN-HAND WOODWORKS, INC.,
a New Jersey corporation
SPORTIME, LLC,
a Delaware limited liability company
GLOBAL VIDEO, LLC,
a Wisconsin limited liability company
PREMIER AGENDAS, INC.,
a Washington corporation
By: /s/ Mary M. Kabacinski
-----------------------------------------
Name: Mary M. Kabacinski
Title: Treasurer
[Signature Pages Continue]
LENDERS: BANK OF AMERICA, N.A., a national banking
association formerly known as NationsBank, N.A.,
individually as a Lender and in its capacity as
Administrative Agent
By: /s/ Casey Cosgrove
-----------------------------------------
Name: Casey Cosgrove
Title: Vice President
BANK ONE, NA (main office, Chicago)
By: /s/ Anthony Maggiore
-----------------------------------------
Name: Anthony F. Maggiore
Title: Director
U.S. BANK NATIONAL ASSOCIATION
By: /s/ Elliott Jaffee
-----------------------------------------
Name: Elliott Jaffee
Title: Senior Vice President
THE BANK OF NEW YORK
By: /s/ Mark Wrigley
-----------------------------------------
Name: Mark Wrigley
Title: Assistant Vice President
HARRIS TRUST AND SAVINGS BANK
By: /s/ George M. Dluhy
-----------------------------------------
Name: George M. Dluhy
Title: Vice President
FIRSTAR BANK, N.A. (formerly known as Firstar Bank
Milwaukee, N.A.)
By:_________________________________________
Name:
Title:
CITIZENS BANK OF MASSACHUSETTS, as successor to
USTRUST
By: /s/ John E. Lucas
-----------------------------------------
Name: John E. Lucas
Title: Vice President
[Signature Pages Continue]
LASALLE BANK NATIONAL ASSOCIATION
By: /s/ Lou D. Banach
-----------------------------------------
Name: Lou D. Banach
Title: First Vice President & Senior Lender
ST. FRANCIS BANK, F.S.B.
By: /s/ John C. Tans
-----------------------------------------
Name: John C. Tans
Title: Vice President
UNION BANK OF CALIFORNIA, N.A.
By: Clifford F. Cho
-----------------------------------------
Name: Clifford F. Cho
Title: Assistant Vice President
WACHOVIA BANK, N.A.
By:_________________________________________
Name:
Title:
MARSHALL & ILSLEY BANK
By: /s/ Leo D. Freeman
-----------------------------------------
Name: Leo D. Freeman
Title: Vice President
SCHEDULE 1
Property to be Released
All of the following assets, whether now or hereafter arising: (a) all Purchased
Receivables, (b) all Collections, (c) each Lock-Box, (d) each Collection
Account, (e) all Related Security, (f) all other rights and payments relating to
the Receivables, and (g) all proceeds of any of the foregoing. As used in this
Schedule 1, the following terms shall have the following meanings:
"Borrower" means School Specialty, Inc., a Wisconsin corporation.
"Collection Account" means each concentration account, depository
account, lock-box account or similar account in which any
Collections are collected or deposited.
"Collections" means, with respect to any Purchased Receivable,
all cash collections and other cash proceeds in respect of such
Purchased Receivable, including, without limitation, all yield,
Finance Charges, or other related amounts accruing in respect
thereof and all cash proceeds of Related Security with respect to
such Purchased Receivable.
"Contract" means any instrument, agreement, invoice or other
writing between an Originator and an Obligor for the sale of
goods or the rendering of services by such Originator to such
Obligor.
"Finance Charges" means, with respect to a Purchased Receivable,
any finance, interest, late payment charges or similar charges
owing by an Obligor pursuant to the related Contract.
"Lock-Box" means each locked postal box with respect to which a
bank holding one or more Collection Accounts has been granted
exclusive access for the purpose of retrieving and processing
payments made on the Purchased Receivables.
"Obligor" means a Person obligated to make payments to an
Originator pursuant to a Contract.
"Original Seller" means each of ClassroomDirect.com, LLC, a
Delaware limited liability company, Childcraft Education Corp., a
New York corporation, Global Video, LLC, a Wisconsin limited
liability company, Sportime, LLC, a Delaware limited liability
company, and Premier Agendas, Inc., a Washington corporation, in
their respective capacities as sellers under the Receivables
Transfer Agreements.
"Originator" means an Original Seller or the Borrower.
"Person" means an individual, partnership, corporation (including
a business trust), limited liability company, joint stock
company, trust, unincorporated association, joint venture or
other entity, or a government or any political subdivision or
agency thereof.
"Purchased Receivables" means (i) all Receivables sold,
contributed or otherwise transferred by an Original Seller to the
Borrower under and pursuant to the terms of the Receivables
Transfer Agreements and subsequently sold, contributed or
otherwise
transferred by the Borrower to the Transferee under and pursuant
to the terms of the Receivables Sales Agreement, and (ii) all
other Receivables sold, contributed or otherwise transferred by
the Borrower to the Transferee under and pursuant to the terms of
the Receivables Sales Agreement.
"Receivable" means the indebtedness and other obligations,
whether constituting an account, chattel paper, instrument,
payment intangible or general intangible, arising in connection
with the sale of goods or the rendering of services by an
Originator and further includes, without limitation, the
obligation to pay any Finance Charges with respect thereto.
"Receivables Sale Agreement" means that certain Receivables Sale
Agreement, dated on or about November 20, 2000, between the
Transferee and the Borrower (as such agreement may be amended,
restated, supplemented, or otherwise modified form time to time).
"Receivables Transfer Agreement" means each of those certain
Receivables Transfer Agreements, dated on or about November 20,
2000 or April 30, 2002, between the Borrower and each of the
Original Sellers (as such agreements may be amended, restated,
supplemented, or otherwise modified form time to time).
"Records" means, with respect to any Purchased Receivable, all
Contracts and other documents, books, records and other
information (including, without limitation, computer programs,
tapes, disks, punch cards, data processing software and related
property and rights) relating to such Purchased Receivable, any
Related Security therefor and the related Obligor.
"Related Security" means, with respect to any Purchased
Receivable:
(a) all security interests or liens and property subject
thereto from time to time, if any, purporting to secure
payment of such Purchased Receivable, whether pursuant to
the Contract related to such Purchased Receivable or
otherwise, together with all financing statements and
security agreements describing any collateral securing such
Purchased Receivable,
(b) all guaranties, letters of credit, insurance and other
agreements or arrangements of whatever character from time
to time supporting or securing payment of such Purchased
Receivable whether pursuant to the Contract related to such
Purchased Receivable or otherwise,
(c) all service contracts and other contracts and
agreements associated with such Purchased Receivable,
(d) all Records and rights under the Contract(s) related
to such Purchased Receivable,
(e) all of the Borrower's right, title and interest in, to
and under the Receivables Transfer Agreement in respect of
such Purchased Receivable, and
(f) all proceeds of any of the foregoing.
"Transferee" means New School, Inc., a Delaware corporation.