Exhibit 10.1
EXECUTION COPY
FIFTH AMENDMENT AND WAIVER
FIFTH AMENDMENT AND WAIVER, dated as of June 13, 2003 (this
"Fifth Amendment"), to and under the Credit Agreement, dated as of February 13,
1998 (as amended, supplemented, or otherwise modified from time to time, the
"Credit Agreement"), among NBC ACQUISITION CORP., a Delaware corporation
("Holdings"), NEBRASKA BOOK COMPANY, INC., a Kansas corporation (the
"Borrower"), the several banks and other financial institutions or entities from
time to time parties thereto (the "Lenders") and JPMORGAN CHASE BANK, a New York
banking corporation (f/k/a The Chase Manhattan Bank), as administrative agent
for the Lenders (in such capacity, the "Administrative Agent").
W I T N E S S E T H:
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WHEREAS, Holdings, the Borrower, the Lenders and the
Administrative Agent are parties to the Credit Agreement;
WHEREAS, the Borrower has requested that the Lenders amend and
waive certain provisions of the Credit Agreement as set forth herein;
WHEREAS, the Required Lenders and the Administrative Agent are
willing to agree to such amendment and waiver to and under the Credit Agreement,
subject to the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and mutual
covenants contained herein, Holdings, the Borrower, the Required Lenders and the
Administrative Agent hereby agree as follows:
1. Defined Terms. Unless otherwise defined herein, capitalized
terms which are defined in the Credit Agreement are used herein as therein
defined.
2. Amendment to Section 1.1 (Definitions). Section 1.1 of the
Credit Agreement is hereby amended by inserting the following definitions in
their proper alphabetical order:
"CampusHub Merger": the merger of CampusHub with and into the
Borrower, with the Borrower being the surviving corporation pursuant to the
CampusHub Merger Agreement, such merger to be consummated on or before August 1,
2003.
"CampusHub Merger Agreement": the Merger Agreement among
CampusHub, Holdings and the Borrower, in form and substance reasonably
satisfactory to the Administrative Agent.
3. Waiver of Section 7.4 (Limitation of Fundamental Changes). The
Administrative Agent and the Required Lenders hereby expressly waive the
application of Section 7.4 of the Credit Agreement to the extent, and only to
the extent, necessary to permit the CampusHub Merger.
4. Amendment of Section 7.8 (Limitation on Investments, Loans and
Advances). Section 7.8(h) is hereby amended by (a) deleting the term "and" at
the end of paragraph (i) thereof; (b) deleting the "." at the end of paragraph
(j) thereof and substituting in lieu thereof the following: "; and"; and (c)
adding the following paragraph (k) at the end thereof:
"(k) the CampusHub Merger; provided, that (i) no Default or Event
of Default shall have occurred and be continuing after giving effect to the
CampusHub Merger, (ii) no Indebtedness shall be assumed by Holdings or any of
its Subsidiaries in connection with the CampusHub Merger except to the extent
otherwise permitted in the CampusHub Merger Agreement or this Agreement and
(iii) the Borrower shall be in pro forma compliance with the financial covenants
set forth in Section 7.1 after giving effect to the CampusHub Merger."
5. Waiver of Section 7.10 (Limitation on Transactions with
Affiliates). The Administrative Agent and the Required Lenders hereby expressly
waive application of Section 7.10 of the Credit Agreement to the extent, and
only to the extent, necessary to permit the CampusHub Merger.
6. Representations and Warranties. (a) Each of Holdings and the
Borrower hereby confirms, reaffirms and restates the representations and
warranties set forth in Section 4 of the Credit Agreement. Each of Holdings and
the Borrower represents and warrants that, after giving effect to this Fifth
Amendment, no Default or Event of Default has occurred and is continuing.
7. Effectiveness. This Fifth Amendment shall become effective as
of the date upon which the Administrative Agent receives counterparts of this
Fifth Amendment duly executed by Holdings, the Borrower and the Required
Lenders.
8. Continuing Effect of the Credit Agreement. This Fifth
Amendment shall not constitute an amendment or waiver of any other provision of
the Credit Agreement not expressly referred to herein and shall not be construed
as a waiver or consent to any further or future action on the part of any Loan
Party that would require a waiver or consent of the Lenders or the
Administrative Agent. The provisions of the Credit Agreement are and shall
remain in full force and effect.
9. Counterparts. This Fifth Amendment may be executed by the
parties hereto in any number of separate counterparts, each of which shall be
deemed to be an original, and all of which taken together shall be deemed to
constitute one and the same instrument. This Fifth Amendment may be delivered by
facsimile transmission of the relevant signature pages hereof.
10. GOVERNING LAW. THIS FIFTH AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused this Fifth
Amendment to be duly executed and delivered in New York, New York by their
respective proper and duly authorized officers as of the day and year first
above written.
NBC ACQUISITION CORP.
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: Treasurer
NEBRASKA BOOK COMPANY, INC.
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: Treasurer
JPMORGAN CHASE BANK,
as Administrative Agent and as a Lender
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: Managing Director
XXXXX FARGO BANK, NA
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Name of Lender
By: /s/ Xxxxxxxx X Xxxxxxxxx, III
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Name: Xxxxxxxx X Xxxxxxxxx, III
Title: Vice President
GENERAL ELECTRIC CAPITAL CORPORATION
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Name of Lender
By: /s/ X.X. Xxxxxxxx
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Name: X.X. Xxxxxxxx
Title: Authorized Signatory
XXXXXX FINANCIAL, INC.,
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Name of Lender
By: /s/ W. Xxxxxx XxXxxxxxx
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Name: W. Xxxxxx XxXxxxxxx
Title: Duly Authorized Signatory
US.S BANK NATIONAL ASSOCIATION
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Name of Lender
By: /s/ Xxxxxxxxxxx Xxxxxxx
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Name: Xxxxxxxxxxx Xxxxxxx
Title: Corporate Banking Officer
NATIONAL CITY BANK
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Name of Lender
By: /s/ Xxxxxxx Xxxxx
-----------------------------------------
Name: Xxxxxxx Xxxxx
Title: Account Officer
SOCIETE GENERALE
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Name of Lender
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
Title: Managing Director
CREDIT AGRICOLE INDOSUEZ
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Name of Lender
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
Title: Vice President
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Title: Vice President
Senior Relationship Manager
