exv4w1



 



Exhibit 4.1



SIXTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT



     THIS SIXTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT, dated as of
December 29, 2003 (this “Amendment”), is by and between CHILDTIME CHILDCARE,
INC., an Illinois corporation (the “Company”), and BANK ONE, NA, with its main
office in Chicago, Illinois, and successor by merger to Bank One, Michigan, a
Michigan banking corporation (the “Bank”).


INTRODUCTION



     A.     The Company and the Bank have entered into an Amended and Restated
Credit Agreement dated as of January 31, 2002, as amended by the First
Amendment to Amended and Restated Credit Agreement dated as of April 1, 2002,
the Second Amendment to Amended and Restated Credit Agreement dated as of July
19, 2002, the Third Amendment to Amended and Restated Credit Agreement dated as
of February 14, 2003, the Fourth Amendment to Amended and Restated Credit
Agreement dated as of June 25, 2003, and the Fifth Amendment to Amended and
Restated Credit Agreement dated as of November 19, 2003 (the “Credit
Agreement”).


     B.     The Company has requested the Bank to modify the Credit Agreement in
certain respects, and the Bank is willing to so amend the Credit Agreement on
the terms and conditions set forth in this Amendment.


     NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein and in the Credit Agreement contained, the parties hereto
agree as follows:


ARTICLE 1. AMENDMENTS TO CREDIT AGREEMENT



     Effective the date (the “Amendment Date”) the conditions precedent set
forth in Article 3 are satisfied, the Credit Agreement hereby is amended as
follows:


          1.1 New Section 3.1(c) is added as follows:




		
	 	     (c) In addition to all other payments required under this
Agreement and the Note, immediately upon the consummation of such
transaction but in any event not later than February 15, 2004, the
Company shall prepay the Loans in an amount equal to the entire
net proceeds from the sale of the Sterling Heights Property
contemplated under Section 5.2(h)(iii) (or with the entire net
proceeds of some other transaction as may be consented to by the
Bank in writing in its sole discretion, subject to such conditions
as the Bank may require in its sole discretion) but in any event
not less than $650,000, and immediately upon such prepayment the
Commitment shall be deemed permanently reduced by the amount equal
to the total amount of interest on the Rights Offering Sub Debt
paid at any time from the Fifth Amendment Date through and
including December 31, 2003



 






 







		
	 	(notwithstanding any failure to comply with the requirements of
Section 2.2 in connection with such reduction of the Commitment) .



          1.2 Subpart (vi) of Section 5.1(f) is amended and restated in full as
follows:




		
	 	     (vi) Exchange of Canton Property for Sterling Heights
Property, and Sale of Sterling Heights Property. Notwithstanding
anything to the contrary, (A) the Bank agrees to release from its
Mortgage the Company’s property commonly known as 3101 Lilley
Road, Canton, Michigan (the “Canton Property”), upon the exchange
by the Company of the Canton Property for the property commonly
known as 2171 15 Mile Road, Sterling Heights, Michigan (the
“Sterling Heights Property”), such that the Company becomes the
fee owner of the Sterling Heights Property subject to no Liens
except Permitted Liens, if any, other than Permitted Liens under
Section 5.2(f)(vi), and (B) the Company shall not be required to
grant to the Bank a mortgage lien on the Sterling Heights Property
so long as by not later than February 15, 2004 the Company has
sold the Sterling Heights Property and applied the proceeds
thereof as required under this Agreement. If the Company has not
sold the Sterling Heights Property and so applied such proceeds by
February 15, 2004, the Company immediately shall grant to the Bank
a first-priority mortgage lien on the Sterling Heights Property
and execute and deliver, or cause to be executed and delivered, to
the Bank all items of the types described in Section 5.1(f), all
in form and substance satisfactory to the Bank.



          1.3 Section 5.2(h) is amended and restated in full as follows:




		
	 	     (h) Disposition of Assets; Etc. Sell, lease, license,
transfer, assign or otherwise dispose of all or a substantial
portion of its business, assets, rights, revenues or property,
real, personal or mixed, tangible or intangible, whether in one or
a series of transactions, other than (i) inventory sold in the
ordinary course of business upon customary credit terms and sales
of scrap or obsolete material or equipment, (ii) the sale by the
Company in any fiscal year of up to thirteen (13) childcare
centers owned by it; provided that, if any such center is subject
to a Mortgage in favor of the Bank, the Company shall first have
obtained the prior written consent of the Bank, which consent from
time to time may be subject to such conditions as the Bank may
require in its sole discretion, and (iii) the exchange of the
Canton Property for the Sterling Heights Property and the
subsequent sale of the Sterling Heights Property by not later than
February 15, 2004, all in accordance with Section 5.1(f)(vi) and
subject to the requirements of Section 3.1(c).



ARTICLE 2. REPRESENTATIONS AND WARRANTIES



          In order to induce the Bank to enter into this Amendment, the Company
represents and warrants that:




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          2.1 The execution, delivery and performance by the Company of this
Amendment are within its corporate powers, have been duly authorized by all
necessary corporate action and are not in contravention of any law, rule or
regulation, or any judgment, decree, writ, injunction, order or award of any
arbitrator, court or governmental authority, or of the terms of the Company’s
charter or by-laws, or of any contract or undertaking to which the Company is a
party or by which the Company or its property is or may be bound or affected.



          2.2 This Amendment is a legal, valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms.



          2.3 No consent, approval or authorization of or declaration, registration
or filing with any governmental authority or any nongovernmental person or
entity, including without limitation any creditor or stockholder of the
Company, is required on the part of the Company in connection with the
execution, delivery and performance of this Amendment or the transactions
contemplated hereby or as a condition to the legality, validity or
enforceability of this Amendment.



          2.4 After giving effect to the amendments contained in Article 1 of this
Amendment, the representations and warranties contained in Article IV of the
Credit Agreement and in the Loan Documents are true on and as of the date
hereof with the same force and effect as if made on and as of the date hereof
and, except for the Known Defaults described in Article 4 of this Amendment, no
Default or Event of Default has occurred and is continuing; provided that such
representations and warranties contained in Section 4.6 of the Credit Agreement
shall be deemed made with respect to the most recent fiscal year-end and
interim financial statements, respectively, of the Parent Guarantor and its
Subsidiaries delivered pursuant to Section 5.1(d) of the Credit Agreement.



ARTICLE 3. CONDITIONS PRECEDENT



          The amendments set forth in Article 1 of this Amendment shall not become
effective until each of the following has been satisfied:



          3.1 This Amendment shall have been executed by a duly authorized officer
on behalf of the Company, and the acknowledgements at the end of this Amendment
shall have been executed by a duly authorized officer on behalf of each of the
Guarantors, in the respective spaces so provided, and this Amendment shall have
been delivered to the Bank.



          3.2 Such other documents, and evidence of completion of such other
matters, as the Bank may reasonably request shall have been duly executed, if
applicable, and delivered to the Bank.




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          The Company and the Guarantors previously have informed the Bank that
Events of Default have occurred due to breaches of Sections 5.2(b) and 5.2(c)
of the Credit Agreement as of the end of the Parent Guarantor’s fiscal quarters
ended on or about July 18, 2003 and October 10, 2003 (collectively, the “Known
Defaults”). So long as any Default or Event of Default has occurred and is
continuing unwaived or would be caused thereby, payment of interest on
Subordinated Debt is prohibited. Pursuant to the Fifth Amendment to the Credit
Agreement referenced above, the Bank waived the Known Defaults subject to
certain conditions, including without limitation that on or before December 31,
2003, the Company have consummated the sale of the Sterling Heights Property
(as defined in such Fifth Amendment) and applied a portion of the proceeds
thereof to the payment of interest on the Rights Offering Sub Debt (as defined
in such Fifth Amendment) in accordance with Section 5.2(h) of the Credit
Agreement (as amended by such Fifth Amendment) or have through some other means
of raising the necessary funds consented to by the Bank in its sole discretion
paid all accrued and unpaid interest on the Rights Offering Sub Debt due
December 31, 2003 (the “Prior Liquidity Event Condition”). The Company and the
Guarantors now have requested that the Bank waive the Known Defaults subject to
the terms and conditions set forth herein, but not subject to the Prior
Liquidity Event Condition. Pursuant to such request, the Bank hereby waives
the Known Defaults and agrees that the Company may pay accrued and unpaid
interest on the Rights Offering Sub Debt due December 31, 2003 in an amount not
exceeding $135,000, provided that (i) the Amendment Date (as defined in this
Sixth Amendment) shall have occurred and (ii) the Bank shall not be deemed
hereby to have waived any other Defaults or Events of Default, or such
provisions of the Credit Agreement as of any other compliance times, or any
other provisions of the Credit Agreement. The Company and the Guarantors
acknowledge and agree that the waiver contained herein is a limited waiver,
limited to the specific Known Defaults described above and subject to the
conditions described in clauses (i) and (ii) of the immediately preceding
sentence. Such waiver (a) shall not waive any other term, covenant or
agreement of the Credit Agreement or any other Loan Document, (b) shall not be
deemed to be a waiver of any other term, covenant or agreement of the Credit
Agreement or any other Loan Document, and (c) shall not be deemed to prejudice
any present or future right or rights which the Bank now has or may have
thereunder. Additionally, the waiver set forth in this Article IV shall not be
deemed to waive any Default or Event of Default, whether now existing or
hereafter existing, whether known, unknown or otherwise, except as specifically
set forth herein.



ARTICLE 5. MISCELLANEOUS



          5.1 If the Company shall fail to perform or observe any term, covenant or
agreement in this Amendment, or any representation or warranty made by the
Company in this Amendment shall prove to have been incorrect in any material
respect when made, such occurrence shall be deemed to constitute an Event of
Default.



          5.2 All references to the Credit Agreement in any other document,
instrument or certificate referred to in the Credit Agreement or delivered in
connection therewith or pursuant thereto hereafter shall be deemed references
to the Credit Agreement, as amended hereby



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          5.3 The Company represents and warrants that it is aware of no claims or
causes of action against the Bank or any of its officers, directors, employees
or agents. Notwithstanding such representation and warranty, and as further
consideration for the agreements set forth in this Amendment, each of the
Company and the Guarantors, for itself and its successors and assigns, releases
the Bank, and its officers, directors, employees, agents, attorneys,
affiliates, subsidiaries, and successors and assigns, from any liability,
claim, right or cause of action which now exists or hereafter arises, whether
known or unknown, arising from or in any way related to facts in existence as
of the date hereof.



          5.4 Each party hereto, after consulting or having had the opportunity to
consult with counsel, knowingly, voluntarily, and intentionally waives any
right any of them may have to a trial by jury in any litigation based upon or
arising out of this Amendment, or any agreement referenced herein or other
related instrument or agreement, or any of the transactions contemplated by
this Amendment, or any course of conduct, dealing, statements (whether oral or
written) or actions of any of them. None of the parties hereto shall seek to
consolidate, by counterclaim or otherwise, any such action in which a jury
trial has been waived with any other action in which a jury trial cannot be or
has not been waived. These provisions shall not be deemed to have been
modified in any respect or relinquished by any party hereto except by a written
instrument executed by all of them.



          5.5 This Amendment and the other agreements and documents executed in
connection with this Amendment constitute the entire understanding of the
parties with respect to the subject matter hereof. This Amendment is binding
on the parties hereto and their respective successors and assigns, and shall
inure to the benefit of the parties hereto and their respective successors and
assigns. If any of the provisions of this Amendment are in conflict with any
applicable statute or rule or law or otherwise unenforceable, such offending
provisions shall be null and void only to the extent of such conflict or
unenforceability, but shall be deemed separate from and shall not invalidate
any other provision of this Amendment.



          5.6 No course of dealing on the part of the Bank, nor any delay or failure
on the part of the Bank in exercising any right, power or privilege hereunder
shall operate as a waiver of such right, power or privilege or otherwise
prejudice the Bank’s rights and remedies hereunder or under the Credit
Agreement, the Note, any Security Document, any other Loan Document or any
other agreement or instrument of the Company or any of the Guarantors with or
in favor of the Bank; nor shall any single or partial exercise thereof preclude
any further exercise thereof or the exercise of any other right, power or
privilege. No right or remedy conferred upon or reserved to the Bank under
this Amendment or under the Credit Agreement, the Note, any Security Document,
any other Loan Document or any other agreement or instrument of the Company or
any Guarantor with or in favor of the Bank is intended to be exclusive of any
other right or remedy, and every right and remedy shall be cumulative and in
addition to every other right or remedy granted thereunder or now or hereafter
existing under any applicable law. Every right and remedy granted by this
Amendment or under the Credit Agreement, the Note, any Security Document, any
other Loan Document or any other agreement or instrument of the Company or any
Guarantor with or in favor of the Bank or by applicable law to the Bank may be
exercised from time to time and as often as may be deemed expedient by the
Bank.




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          5.7 The Loan Documents and, subject to the amendments herein provided, the
Credit Agreement shall in all respects continue in full force and effect.



          5.8 Capitalized terms used but not defined herein shall have the
respective meanings ascribed thereto in the Credit Agreement.



          5.9 This Amendment shall be governed by and construed in accordance with
the laws of the State of Michigan.



          5.10 The Company agrees to pay the reasonable fees and expenses of
Dickinson Wright PLLC, counsel for the Bank, in connection with the negotiation
and preparation of this Amendment and the consummation of the transactions
contemplated hereby, and in connection with advising the Bank as to its rights
and responsibilities with respect thereto.



          5.11 This Amendment may be executed upon any number of counterparts with
the same effect as if the signatures thereto were upon the same instrument.



[The remainder of this page intentionally left blank.]





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          IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered as of the day and year first-above written.




	 	 	 
	 	
CHILDTIME CHILDCARE, INC.
	 	 	
 
	 	By:	
/s/ Kathy L. Winkelhaus
	 	 	


	 	 	
 
	 	
Its Vice President and Chief Operating
Officer
	 	 	
 
	 	
BANK ONE, NA
	 	 	
 
	 	By:	
/s/ Richard C. Ellis
	 	 	


	 	 	
 
	 	
Its First Vice President




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GUARANTOR ACKNOWLEDGEMENT



     Each of the undersigned hereby acknowledges that it has reviewed and fully
consents to the foregoing Fifth Amendment to Amended and Restated Credit
Agreement (the “Amendment”), that the Guaranty Agreements and all other Loan
Documents made by each of the undersigned in favor of the Bank continue in full
force and effect and each of the undersigned acknowledges and agrees that it
has no defenses, counterclaims or offsets with respect thereto. All references
to the Credit Agreement in the Guaranty Agreements and in all other Loan
Documents or any other document, instrument or certificate referred to in the
Credit Agreement or delivered in connection therewith or pursuant thereto,
hereafter shall be deemed references to the Credit Agreement, as amended by the
Amendment. Except as otherwise expressly set forth herein, capitalized terms
used but not defined herein shall have the respective meanings ascribed thereto
in the Amendment or the Credit Agreement, as the case may be.



	 	 	 
	 	
CHILDTIME LEARNING CENTERS, INC.
	 	 	
 
	 	By:	
/s/ Frank Jerneycic
	 	 	


	 	 	
 
	 	
Its Vice President and Chief Financial
Officer
	 	 	
 
	 	
CHILDTIME CHILDCARE-PMC, INC.
	 	 	
 
	 	By:	
/s/ Frank Jerneycic
	 	 	


	 	 	
 
	 	
Its Vice President and Chief Financial
Officer
	 	 	
 
	 	
CHILDTIME CHILDCARE-MICHIGAN, INC.
	 	 	
 
	 	By:	
/s/ Frank Jerneycic
	 	 	


	 	 	
 
	 	
Its Vice President and Chief Financial
Officer
	 	 	
 
	 	
TUTOR TIME LEARNING CENTERS, LLC

(formerly known as TT Acquisition LLC)
	 	 	
 
	 	By:	
/s/ Frank Jerneycic
	 	 	


	 	 	
 
	 	
Its Vice President and Chief Financial
Officer



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TUTOR TIME INTERNATIONAL LEARNING

CENTERS, INC. (formerly known as CTT

Acquisition Corp.)
	 	 	
 
	 	By:	
/s/ Frank Jerneycic
	 	 	


	 	 	
 
	 	
Its Vice President and Chief Financial
Officer





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