EXECUTION COPY EXHIBIT 10.1
FOURTH AMENDMENT AND WAIVER
FOURTH AMENDMENT AND WAIVER, dated as of June 4, 2002 (this
"Fourth 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:
- - - - - - - - - -
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 the Credit Agreement as set forth herein;
WHEREAS, the Required Lenders or the Required Prepayment Lenders,
as applicable, 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, NHC (as defined below), Holdings, the Borrower, the
Required Lenders or theRequired Prepayment Lenders, as the case may be, 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 definition in its
correct alphabetical order:
"NHC": NEBRASKA HOLDINGS CORP.
3. WAIVER OF SECTION 2.12 (MANDATORY PREPAYMENTS AND COMMITMENT
REDUCTION). The Administrative Agent and the Required Prepayment Lenders hereby
waive compliance with the provisions of Section 2.12(c) of the Credit Agreement
solely to the extent that the Borrower shall have no obligation to make any
prepayment or commitment reduction out of Excess Cash Flow for the fiscal year
ending March 31, 2002 on the applicable Excess Cash Flow Application Date.
4. AMENDMENT TO SECTION 6.7 (NOTICES). Section 6.7 of the Credit
Agreement is hereby amended by (i) deleting the term "and" at the end of clause
(e) therein, (ii) deleting the "." at the end of clause (f) therein and
substituting in lieu thereof the following: "; and" and (iii) adding the
following clause (g) immediately after clause (f) therein:
"(g) any sale or other disposition by the Primary Investors of
any Capital Stock having ordinary voting power in the election of
directors of Holdings."
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5. AMENDMENT TO SECTION 7.4 (LIMITATION ON FUNDAMENTAL CHANGES).
Section 7.4 of the Credit Agreement is hereby amended by (i) deleting the term
"and" at the end of paragraph (a) thereof, (ii) deleting the period at the end
of paragraph (b) thereof and substituting in lieu thereof the following: ";
and", and (iii) inserting the following new paragraph (c) at the end of such
Section:
"(c) NHC may be merged into Holdings pursuant to documentation
reasonably satisfactory to the Administrative Agent, such that Holdings
shall be the surviving corporation of such merger."
6. AMENDMENT OF SECTION 7.7 (LIMITATION ON CAPITAL EXPENDITURES).
Section 7.7 of the Credit Agreement is hereby amended by deleting the term
"$3,500,000" in paragraph (a) therein and substituting in lieu thereof the
following: "$5,000,000".
7. WAIVER OF SECTION 7.17 (LIMITATION ON ACTIVITIES OF HOLDINGS).
The Administrative Agent and the Required Lenders hereby waive compliance with
the provisions of Section 7.17(a) of the Credit Agreement to the extent, and
only to the extent, necessary to permit NHC to be merged into Holdings, such
that Holdings shall be the surviving corporation of such merger.
8. AMENDMENT TO SECTION 8 (EVENTS OF DEFAULT). Section 8(j) of
the Credit Agreement is hereby amended by deleting clause (iii) thereof in its
entirety and substituting in lieu thereof the following:
"(iii) the Primary Investors shall cease to own legally and
beneficially at least 51% of each outstanding class of Capital Stock
having ordinary voting power in the election of directors of Holdings;
or"
9. 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 Fourth
Amendment, no Default or Event of Default has occurred and is continuing.
(b) NHC hereby represents and warrants that its only asset is the
Capital Stock of Holdings and that it has no liabilities other than liabilities
relating to (i) its ownership of Holdings and (ii) its existence as a
corporation.
10. EFFECTIVENESS. This Fourth Amendment shall become effective
as of the date upon which (i) the Administrative Agent receives from the
Borrower, for the account of each Lender that has executed and delivered this
Amendment on or prior to June 4, 2002, an amendment fee equal to 0.05% of such
Lender's Revolving Credit Commitment and Term Loans then outstanding and (ii)
the Administrative Agent receives counterparts of this Fourth Amendment duly
executed by NHC, Holdings, the Borrower and (x) with respect to the Amendments
and Waiver set forth in paragraphs 2, 4, 5, 6, 7 and 8 herein, the Required
Lenders and (y) with respect to the Waiver set forth in paragraph 3 herein, the
Required Prepayment Lenders.
11. CONTINUING EFFECT OF THE CREDIT AGREEMENT. This Fourth
Amendment shall not constitute an amendment 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
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Agent. Except as expressly amended hereby, the provisions of the Credit
Agreement are and shall remain in full force and effect.
12. COUNTERPARTS. This Fourth 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 Fourth Amendment may be delivered
by facsimile transmission of the relevant signature pages hereof.
13. GOVERNING LAW. THIS FOURTH AMENDMENT SHALL BE GOVERNED BY,
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
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IN WITNESS WHEREOF, the parties hereto have caused this Fourth
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.
NEBRASKA HOLDINGS CORP., only with respect
to Section 9(b) of the Fourth Amendment
By: /s/ Xxxx X. Xxxxxx
-------------------
Name: Xxxx X. Xxxxxx
Title: Secretary
NBC ACQUISITION CORP.
By: /s/ Xxxx X. Xxxxxx
-------------------
Name: Xxxx X. Xxxxxx
Title: Treasurer
NEBRASKA BOOK COMPANY, INC.
By: /s/ Xxxx X. Xxxxxx
-------------------
Name: Xxxx X. Xxxxxx
Title: Treasurer
JPMORGAN CHASE BANK,
as Administrative Agent and as a Lender
By: /s/ Xxxxxx X. Xxxxxxx
----------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
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ABN AMRO Bank N.V.
-------------------
Name of Lender
By: /s/ K. Xxxxxx Xxxxxx
---------------------
Name: K. Xxxxxx Xxxxxx
Title: Group Vice President
By: /s/ Xxxx X. Xxxxxxx
--------------------
Name: Xxxx X. Xxxxxxx
Title: Assistant Vice President
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ELC (Cayman) Ltd.
-----------------
Name of Lender
By: Institutional Debt Management, Inc.,
as Collateral Manager
By: /s/ Xxxxxxx Xxxxxx
-----------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
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ELC (Cayman) Ltd. 1999-II
-------------------------
Name of Lender
By: Institutional Debt Management, Inc.,
as Collateral Manager
By: /s/ Xxxxxxx Xxxxxx
------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
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ELC (Cayman) Ltd. 1999-III
--------------------------
Name of Lender
By: Institutional Debt Management, Inc.,
as Collateral Manager
By: /s/ Xxxxxxx Xxxxxx
------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
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GE Capital Corporation
----------------------
Name of Lender
By: /s/ X.X. Xxxxxxxx
------------------
Name: X.X. Xxxxxxxx
Title: Authorized Signatory
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National City Bank
------------------
Name of Lender
By: /s/ Xxxxx X. Xxxxxx
--------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
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XXXXX CLO Ltd. 2000-I
----------------------
Name of Lender
By: Institutional Debt Management, Inc.,
as Collateral Manager
By: /s/ Xxxxxxx Xxxxxx
------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
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U.S. Bank National Association
-------------------------------
Name of Lender
By: /s/ Xxxxx Xxxxxxx
------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
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Xxx Xxxxxx Prime Rate Income Trust
----------------------------------
Name of Lender
By: Xxx Xxxxxx Investment Advisory Corp.
By: /s/ Xxxxxxxxx Xxxxxxxx
-----------------------
Name: Xxxxxxxxx Xxxxxxxx
Title: Vice President
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Xxxxx Fargo Bank
----------------
Name of Lender
By: /s/ X. Xxxxxxxx Xxxxxx
-----------------------
Name: X. Xxxxxxxx Xxxxxx
Title: Assistant Vice President
