EXHIBIT 10.1
SUBSIDIARY GUARANTEE
Supplemental Indenture, dated as of December 31, 2004
("Supplemental Indenture" or "Guarantee"), by and among NBC Textbooks LLC, a
Delaware limited liability corporation (the "Guarantor"), Nebraska Book Company,
Inc. (together with its successors and assigns, the "Company"), each other then
existing Subsidiary Guarantor under the Indenture referred to below, and BNY
Midwest Trust Company, as Trustee under the Indenture referred to below.
W I T N E S S E T H:
WHEREAS, the Company, the Subsidiary Guarantors and the Trustee
have heretofore executed and delivered an Indenture, dated as of March 4, 2004
(as amended, supplemented, waived or otherwise modified, the "Indenture"),
providing for the issuance of an aggregate principal amount of $175.0 million of
8 5/8% Senior Subordinated Notes due 2012 of the Company (the "Securities");
WHEREAS, Section 3.12 of the Indenture provides that the Company
is required to cause each Restricted Subsidiary that guarantees Indebtedness
under the Credit Agreement to execute and deliver to the Trustee a Subsidiary
Guarantee pursuant to which such Subsidiary Guarantor will unconditionally
Guarantee, on a joint and several basis, the full and prompt payment of the
principal of, premium, if any, and interest on the Securities on a senior
subordinated basis; and
WHEREAS, pursuant to Section 9.1 of the Indenture, the Trustee
and the Company are authorized to execute and deliver this Supplemental
Indenture to amend the Indenture, without the consent of any Securityholder;
NOW, THEREFORE, in consideration of the foregoing and for other
good and valuable consideration, the receipt of which is hereby acknowledged,
the Guarantor, the Company, the other Subsidiary Guarantors and the Trustee
mutually covenant and agree for the equal and ratable benefit of the holders of
the Securities as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 DEFINED TERMS. As used in this Subsidiary Guarantee,
terms defined in the Indenture or in the preamble or recital hereto are used
herein as therein defined, except that the term "Holders" in this Guarantee
shall refer to both the term "Holders" as defined in the Indenture and the
Trustee acting on behalf or for the benefit of such Holders. The words "herein,"
"hereof" and "hereby" and other words of similar import used in this
Supplemental Indenture refer to this Supplemental Indenture as a whole and not
to any particular section hereof.
ARTICLE II
AGREEMENT TO BE BOUND; GUARANTEE
SECTION 2.1 AGREEMENT TO BE BOUND. The Guarantor hereby becomes a
party to the Indenture as a Subsidiary Guarantor and as such will have all of
the rights and be subject to all of the obligations and agreements of a
Subsidiary Guarantor under the Indenture. The Guarantor agrees to be bound by
all of the provisions of the Indenture applicable to a Subsidiary Guarantor and
to perform all of the obligations and agreements of a Subsidiary Guarantor under
the Indenture.
SECTION 2.2 GUARANTEE. The Guarantor hereby unconditionally
guarantees, jointly and severally with each other Subsidiary Guarantor, to each
Holder of the Securities and the Trustee, the full and punctual payment when
due, whether at maturity, by acceleration, by redemption or otherwise, of the
Obligations pursuant to Article XI of the Indenture on a senior subordinated
basis. Each Subsidiary Guarantee will be subordinated to the prior payment in
full of all Guarantor Senior Indebtedness as provided in ARTICLE XII of the
Indenture. Each Subsidiary Guarantee will rank equally with all other Guarantor
Senior Subordinated Indebtedness of that Subsidiary Guarantor and will be senior
in right of payment to all future Guarantor Subordinated Obligations of that
Guarantor. The Subsidiary Guarantees will be effectively subordinated to any
secured Indebtedness of the applicable Guarantor to the extent of the value of
the assets securing such Indebtedness.
ARTICLE III
MISCELLANEOUS
SECTION 3.1 NOTICES. All notices and other communications
pertaining to this Guarantee or any Security shall be in writing and shall be
deemed to have been duly given upon the receipt thereof. Such notices shall be
delivered by hand, or mailed, certified or registered mail with postage prepaid
(a) if to the Guarantor, at its address set forth below, with a copy to the
Company as provided in the Indenture for notices to the Company, and (b) if to
the Holders or the Trustee, as provided in the Indenture. The Guarantor by
notice to the Trustee may designate additional or different addresses for
subsequent notices to or communications with the Guarantor.
SECTION 3.2 PARTIES. Nothing expressed or mentioned in this
Guarantee is intended or shall be construed to give any Person, firm or
corporation, other than the Holders and the Trustee and the holders of any
Guarantor Senior Indebtedness, any legal or equitable right, remedy or claim
under or in respect of this Guarantee or any provision herein contained.
SECTION 3.3 GOVERNING LAW. This Agreement shall be governed by
the laws of the State of New York.
SECTION 3.4 SEVERABILITY CLAUSE. In case any provision in this
Guarantee shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby and such provision shall be ineffective only to the extent of
such invalidity, illegality or unenforceability.
SECTION 3.5 ENTIRE AGREEMENT. This Guarantee is intended by the
parties to be a final expression of their agreement in respect of the subject
matter contained herein and, together with the Indenture, supersedes all prior
agreements and understandings between the parties with respect to such subject
matter.
SECTION 3.6 RATIFICATION OF INDENTURE; SUPPLEMENTAL INDENTURES
PART OF INDENTURE. Except as expressly amended hereby, the Indenture is in all
respects ratified and confirmed and all the terms, conditions and provisions
thereof shall remain in full force and effect. This Supplemental Indenture shall
form a part of the Indenture for all purposes, and every holder of Securities
heretofore or hereafter authenticated and delivered shall be bound hereby. The
Trustee makes no representation or warranty as to the validity or sufficiency of
this Supplemental Indenture.
SECTION 3.7 COUNTERPARTS. The parties hereto may sign one or more
copies of this Supplemental Indenture in counterparts, all of which together
shall constitute one and the same agreement.
SECTION 3.8 HEADINGS. The headings of the Articles and the
sections in this Guarantee are for convenience of reference only and shall not
be deemed to alter or affect the meaning or interpretation of any provisions
hereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed as of the date first above written.
NBC TEXTBOOKS LLC,
By: /s/ Xxxx X. Xxxxxxxx
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Name: Xxxx X. Xxxxxxxx
Title: President
Address: 0000 Xxxxx 00xx Xxxxxx,
Xxxxxxx, Xxxxxxxx 00000
NEBRASKA BOOK COMPANY, INC.
By: /s/ Xxxx X. Xxxxxxxx
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Name: Xxxx X. Xxxxxxxx
Title: President
SPECIALTY BOOKS, INC.
By: /s/ Xxxx X. Xxxxxxxx
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Name: Xxxx X. Xxxxxxxx
Title: President
BNY MIDWEST TRUST COMPANY, AS TRUSTEE
By: /s/ X. Xxxxxx
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Name: X. Xxxxxx
Title: Assistant Vice President
