Fourth Amendment and Waiver to Credit Agreement among NBC Acquisition Corp., Nebraska Book Company, Lenders, and JPMorgan Chase Bank

Summary

This agreement is the Fourth Amendment and Waiver to a Credit Agreement originally dated February 13, 1998, involving NBC Acquisition Corp., Nebraska Book Company, various lenders, and JPMorgan Chase Bank as administrative agent. The amendment updates certain definitions, waives specific prepayment and activity requirements, allows for a merger between Nebraska Holdings Corp. and NBC Acquisition Corp., increases permitted capital expenditures, and modifies ownership requirements. The amendment is effective upon payment of a fee and execution by the required parties, and all other terms of the original Credit Agreement remain in effect.

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EX-10.1 3 ex10-1.txt FORUTH AMENDMENT AND WAIVER 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." 2 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 3 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. 4 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/ Alan G. Siemek ------------------- Name: Alan G. Siemek Title: Secretary NBC ACQUISITION CORP. By: /s/ Alan G. Siemek ------------------- Name: Alan G. Siemek Title: Treasurer NEBRASKA BOOK COMPANY, INC. By: /s/ Alan G. Siemek ------------------- Name: Alan G. Siemek Title: Treasurer JPMORGAN CHASE BANK, as Administrative Agent and as a Lender By: /s/ Robert A. Krasnow ---------------------- Name: Robert A. Krasnow Title: Vice President 5 ABN AMRO Bank N.V. ------------------- Name of Lender By: /s/ K. Daniel Straff --------------------- Name: K. Daniel Straff Title: Group Vice President By: /s/ John M. Pastore -------------------- Name: John M. Pastore Title: Assistant Vice President 6 ELC (Cayman) Ltd. ----------------- Name of Lender By: Institutional Debt Management, Inc., as Collateral Manager By: /s/ Michael Audino ----------------------- Name: Michael Audino Title: Vice President 7 ELC (Cayman) Ltd. 1999-II ------------------------- Name of Lender By: Institutional Debt Management, Inc., as Collateral Manager By: /s/ Michael Audino ------------------------ Name: Michael Audino Title: Vice President 8 ELC (Cayman) Ltd. 1999-III -------------------------- Name of Lender By: Institutional Debt Management, Inc., as Collateral Manager By: /s/ Michael Audino ------------------------ Name: Michael Audino Title: Vice President 9 GE Capital Corporation ---------------------- Name of Lender By: /s/ T.J. Williams ------------------ Name: T.J. Williams Title: Authorized Signatory 10 National City Bank ------------------ Name of Lender By: /s/ Peter W. Richer -------------------- Name: Peter W. Richer Title: Vice President 11 TRYON CLO Ltd. 2000-I ---------------------- Name of Lender By: Institutional Debt Management, Inc., as Collateral Manager By: /s/ Michael Audino ------------------------ Name: Michael Audino Title: Vice President 12 U.S. Bank National Association ------------------------------- Name of Lender By: /s/ David Shapiro ------------------------ Name: David Shapiro Title: Vice President 13 Van Kampen Prime Rate Income Trust ---------------------------------- Name of Lender By: Van Kampen Investment Advisory Corp. By: /s/ Christina Jamieson ----------------------- Name: Christina Jamieson Title: Vice President 14 Wells Fargo Bank ---------------- Name of Lender By: /s/ T. Bancroft Mattei ----------------------- Name: T. Bancroft Mattei Title: Assistant Vice President