FOURTH AMENDMENT
FOURTH AMENDMENT, dated as of April 26, 2006 (this "Fourth
Amendment"), to the Amended and Restated Credit Agreement, dated as of February
13, 1998, as amended and restated as of December 10, 2003, as further amended
and restated as of March 4, 2004, and as amended by the First Amendment thereto,
dated as of August 6, 2004, the Second Amendment thereto, dated as of October
20, 2004 and the Third Amendment thereto, dated as of August 1, 2005 (the
"Credit Agreement"), among Nebraska Book Company, Inc., a Kansas corporation
(the "Borrower"), NBC Holdings Corp., NBC Acquisition Corp., the lenders party
from time to time thereto (the "Lenders"), JPMorgan Chase Bank, N.A. (formerly
known as JPMorgan Chase Bank), as administrative agent (in such capacity, the
"Administrative Agent") and collateral agent, Citigroup Global Markets Inc., as
syndication agent, and Bank of America, N.A. (as successor by merger to Fleet
National Bank) and ▇▇▇▇▇ Fargo Bank N.A., as co-documentation agents.
W I T N E S S E T H:
WHEREAS, the Borrower, the Lenders and the Administrative Agent are
parties to the Credit Agreement;
WHEREAS, the Borrower has notified the Administrative Agent that it
intends to acquire all of the Capital Stock of CBA (as hereinafter defined)
pursuant to the CBA Acquisition (as hereinafter defined);
WHEREAS, in order to finance the CBA Acquisition the Borrower has
requested that the Credit Agreement be amended to, among other things (i)
increase the Revolving Credit Facility from $50,000,000 to $65,000,000 and (ii)
provide an incremental term loan facility in the amount of $24,000,000;
WHEREAS, the Borrower has requested that the Credit Agreement be
amended as provided herein; and
WHEREAS, the Lenders and the Administrative Agent are willing to agree
to such amendment to the Credit Agreement, subject to the terms and conditions
set forth herein;
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein, the Borrower, the 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. Increase in Revolving Credit Facility. Subject to the terms and
conditions hereof and in reliance upon the representations and warranties set
forth herein and in the Credit Agreement, on the Fourth Amendment Effective Date
the Total Revolving Credit Commitments will be increased from $50,000,000 to
$65,000,000 (the amount of such increase, the "Increased Revolving
Commitments"). The Increased Revolving Commitments will be made available by the
Lenders listed on Schedule I hereto (the "Additional Revolving Credit Lenders")
in the respective amounts set forth opposite such Lenders' names on Schedule I
hereto. On the Fourth Amendment Effective Date participating interests in
outstanding Letters of Credit will be reallocated and deemed held by all the
Revolving Credit Lenders in accordance with their respective Revolving Credit
Percentages. On the Fourth Amendment Effective Date the Revolving Credit Lenders
(including Revolving Credit Lenders holding Increased Revolving Commitments)
will make payments to the Administrative Agent and the Administrative Agent will
make
payments to the Revolving Credit Lenders in such amounts as shall be directed by
the Administrative Agent so that, after giving effect thereto, the Revolving
Credit Loans will be held by the Revolving Credit Lenders in accordance with
their respective Revolving Credit Percentages. Revolving Credit Loans made after
the Fourth Amendment Effective Date shall be made ratably by all Revolving
Credit Lenders, including the Additional Revolving Credit Lenders. On the Fourth
Amendment Effective Date (i) the existing Revolving Credit Loans and the Loans
made under the Increased Revolving Commitments shall be combined and
consolidated into a single class of revolving credit loans and such class shall
be the Revolving Credit Loans for all purposes of the Credit Agreement and the
other Loan Documents (including as to payment, prepayment, interest rate and
obligation to participate in outstanding Letters of Credit and Swing Line
Loans), (ii) the Increased Revolving Credit Commitments shall be combined and
consolidated into the Revolving Credit Commitments and (iii) each Additional
Revolving Credit Lender shall be a Revolving Credit Lender under the Credit
Agreement and the other Loan Documents. The Borrower will make payments of
principal, interest and fees in respect of the Revolving Credit Commitments,
Revolving Credit Loans and Letters of Credit consistent with the allocations
described in this Section.
3. Amendments to Section 1.1 (Defined Terms).
(a) Section 1.1 of the Credit Agreement is amended by adding the
following definitions in proper alphabetical order:
"Borrower Pro Forma CBA Financial Statements": as defined in Section
4.1(a)(iii).
"CBA": College Bookstores of America, Inc., an Illinois corporation.
"CBA Acquisition": the acquisition by the Borrower of all of the
Capital Stock of CBA for aggregate consideration (including cash, assumed
debt, and payments in respect of debt and other liabilities but excluding
working capital borrowings and debt which is refinanced on or prior to the
Fourth Amendment Effective Date) not exceeding $32,000,000 pursuant to the
Share Purchase Agreement dated as of April 2, 2006, as amended, restated or
supplemented from time to time (with the consent of the Administrative
Agent if such amendment, restatement or supplement is material).
"Fourth Amendment": the Fourth Amendment dated as of April 26, 2006 to
this Agreement.
"Fourth Amendment Effective Date": May 1, 2006, which is the date on
which the Fourth Amendment became effective in accordance with its terms.
"Incremental Term Loan": each term loan made pursuant to Section 2.25.
"Incremental Term Loan Commitment": as to any Lender, the obligation
of such Lender, if any, to make an Incremental Term Loan to the Borrower
hereunder in a principal amount not to exceed the amount set forth under
the heading "Incremental Term Loan Commitment" opposite such Lender's name
on Schedule II to the Fourth Amendment. The original aggregate amount of
the Incremental Term Loan Commitments is $24,000,000.
"Incremental Term Loan Lenders": each Lender which has an Incremental
Term Loan Commitment or which has made an Incremental Term Loan.
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"Incremental Term Loan Percentage": as to any Incremental Term Loan
Lender at any time, the percentage which such Lender's Incremental Term
Loan Commitment then constitutes of the aggregate Incremental Term Loan
Commitments (or, at any time after the Closing Date, the percentage which
the aggregate principal amount of such Lender's Incremental Term Loans then
outstanding constitutes of the aggregate principal amount of the
Incremental Term Loans then outstanding).
(b) The definition of "Confidential Information Memorandum" set forth
in Section 1.1 of the Credit Agreement is amended by adding the following at the
end thereof:
and the presentation to Lenders dated April 12, 2006.
(c) The following definitions set forth in Section 1.1 of the Credit
Agreement are deleted and replaced with the following:
"Aggregate Exposure": with respect to any Lender, an amount equal to
the sum of (i) the aggregate unpaid principal amount of such Lender's Term
Loans, (ii) the aggregate unpaid principal amount of such Lender's
Incremental Term Loans, (iii) the amount of such Lender's Revolving Credit
Commitment or, if the Revolving Credit Commitments have been terminated,
the amount of such Lender's Revolving Extensions of Credit and (iv) the
amount of such Lender's Incremental Revolving Credit Commitment or, if the
Incremental Revolving Credit Commitments have been terminated, the amount
of such Lender's Incremental Revolving Extensions of Credit.
"Facility": each of (a) the Term Loan Commitments and the Term Loans
made thereunder (the "Term Loan Facility"), (b) the Incremental Term Loan
Commitments and the Incremental Term Loans made thereunder (the
"Incremental Term Loan Facility"), (c) the Revolving Credit Commitments and
the extensions of credit made thereunder (the "Revolving Credit Facility")
and (d) the Incremental Revolving Credit Commitments and the extensions of
credit made thereunder (the "Incremental Revolving Credit Facility").
"Revolving Credit Commitment": as to any Lender, the obligation of
such Lender, if any, to make Revolving Credit Loans and participate in
Swing Line Loans and Letters of Credit in an aggregate principal and/or
face amount not to exceed the amount set forth under the heading "Revolving
Credit Commitment" opposite such Lender's name on Schedule 1.1A or in the
Assignment and Assumption pursuant to which such Lender became a party
hereto or as set forth in the Fourth Amendment, as the same may be changed
from time to time pursuant to the terms hereof. The original amount of the
Total Revolving Credit Commitments is $50,000,000, and the amount of the
Total Revolving Credit Commitments on the Fourth Amendment Effective Date
is $65,000,000.
(d) The definition of "Applicable Margin" set forth in Section 1.1 of
the Credit Agreement is amended by deleting paragraph (b) and substituting
therefor the following:
(b) with respect to Term Loans and Incremental Term Loans on any
day, the rate per annum set forth in the relevant column heading below
opposite the Term Loan Rating in effect for such day:
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--------------------------------------------------------------------------
Level Term Loan Rating Eurodollar Loans Base Rate Loans
--------------------------------------------------------------------------
I > B+/B1 2.25% 1.25%
-
--------------------------------------------------------------------------
II < B+/B1 2.50% 1.50%
--------------------------------------------------------------------------
The Borrower agrees that it shall cause the Term Loans and Incremental
Term Loans to be rated by each of S&P and ▇▇▇▇▇'▇ until the Term Loans or
Incremental Term Loans, as the case may be, are repaid in full. For
purposes of the foregoing table, (i) if the ratings established or deemed
to have been established by ▇▇▇▇▇'▇ Investors Services ("Moody's") and
Standard & Poor's Ratings Group ("S&P") for the Term Loans and Incremental
Term Loans shall fall within different Levels, the Applicable Margin shall
be based on the lower of the two ratings (i.e., the higher Level number);
and (ii) if the ratings established or deemed to have been established by
▇▇▇▇▇'▇ and S&P for the Term Loans and Incremental Term Loans shall be
changed (other than as a result of a change in the rating system of Moody's
or S&P), such change shall be effective as of the date on which it is first
announced by the applicable rating agency. Each change in the Applicable
Margin for the Term Loans and Incremental Term Loans shall apply during the
period commencing on the effective date of such change and ending on the
date immediately preceding the effective date of the next such change. If
the rating system of Moody's or S&P shall change, or if either such rating
agency shall cease to be in the business of rating corporate debt
obligations, the Borrower and the Lenders shall negotiate in good faith to
amend this definition to reflect such changed rating system or the
unavailability of ratings from such rating agency and, pending the
effectiveness of any such amendment, the Applicable Margin for the Term
Loans and Incremental Term Loans shall be determined by reference to the
rating most recently in effect prior to such change or cessation.
(e) The definition of "Commitment" set forth in Section 1.1 of the
Credit Agreement is amended by adding the phrase "the Incremental Term Loan
Commitment," immediately after the phrase "Term Loan Commitment,".
(f) The definition of "Consolidated Fixed Charges" set forth in
Section 1.1 of the Credit Agreement is amended by adding the phrase "and
Incremental Term Loans" immediately after the phrase "Term Loans".
(g) The definition of "Excess Cash Flow" set forth in Section 1.1 of
the Credit Agreement is amended by adding the phrase "and Incremental Term
Loans" immediately after the phrase "Term Loans".
(h) The definition of "Interest Period" set forth in Section 1.1 of
the Credit Agreement is amended by adding the phase "and Incremental Term Loans"
immediately after the phrase "Term Loans".
(i) The definition of "Majority Facility Lenders" set forth in Section
1.1 of the Credit Agreement is amended by adding the phrase "the Incremental
Term Loans," immediately after the phrase "Term Loans,".
(j) The definition of "Required Lenders" set forth in Section 1.1 of
the Credit Agreement is amended by adding the phrase "and Incremental Term
Loans" immediately after the phrase "Term Loans".
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4. Amendment to Section 2.8 (Repayment of Loans; Exchange of Debt).
(a) Section 2.8(a) of the Credit Agreement is amended by (i) adding the phrase
"or Incremental Term Loan Lender" immediately after the phrase "Term Loan
Lender", (ii) replacing the word "and" which appears before clause (iv) with a
comma and (iii) adding the following at the end of the first sentence
and (v) the principal amount of each Incremental Term Loan of such Lender
in installments according to the amortization schedule set forth in Section
2.27 (or any such earlier date on which the Loans become due and payable
pursuant to Section 8).
(b) Section 2.8(e) of the Credit Agreement is amended by adding the
phrase "Incremental Term Loans," immediately after the phrase "Term Loans,".
5. Amendment to Section 2.11 (Optional Prepayments). Section 2.11 of
the Credit Agreement is amended by adding the phrase "and the Incremental Term
Loans" immediately after the phrase "Term Loans" in the second to last sentence
thereof.
6. Amendment to Section 2.12 (Mandatory Prepayments). (a) Section
2.12(a) of the Credit Agreement is amended by (i) adding the phrase "and the
Incremental Term Loans" immediately after the phrase "Term Loans" and (ii)
deleting the phrase "(a)(ii)" and substituting therefor the phrase "(a)".
(b) Section 2.12(b) of the Credit Agreement is amended by deleting
such Section in its entirety and replacing it with the following:
(b) Unless the Required Prepayment Lenders shall otherwise agree,
if on any date SuperHoldings, Holdings, the Borrower or any of their
respective Subsidiaries shall receive Net Cash Proceeds from any Asset
Sale or Recovery Event (or, in the event of damage by casualty, the
date the repair or restoration of the relevant Property is completed)
then, unless a Reinvestment Notice shall be delivered in respect
thereof, such Net Cash Proceeds shall be applied on such date toward
the prepayment of the Term Loans and the Incremental Term Loans as set
forth in Section 2.12(d); provided, that, notwithstanding the
foregoing, (i) the aggregate Net Cash Proceeds of Asset Sales and
Recovery Events that may be excluded from the foregoing requirement
pursuant to a Reinvestment Notice shall not exceed $1,000,000 in any
fiscal year of the Borrower, or $2,000,000 in any fiscal year of the
Borrower immediately succeeding a fiscal year of the Borrower as of
the last day of which the Consolidated Leverage Ratio is less than or
equal to 4.0 to 1.0, and (ii) on each Reinvestment Prepayment Date, an
amount equal to the Reinvestment Prepayment Amount with respect to the
relevant Reinvestment Event shall be applied toward the prepayment of
the Term Loans and Incremental Term Loans as set forth in Section
2.12(d); and provided further, that notwithstanding the foregoing,
such Net Cash Proceeds which are not subject to a Reinvestment Notice
shall not be required to be applied toward the prepayment of the Term
Loans and the Incremental Term Loans until the date upon which the
aggregate amount of such Net Cash Proceeds received by SuperHoldings,
Holdings, the Borrower and their respective Subsidiaries and not
previously applied toward the prepayment of the Term Loans and the
Incremental Term Loans shall exceed $1,000,000.
(c) Sections 2.12(c) and (d) of the Credit Agreement are amended by
adding the phrase "and the Incremental Term Loans" after the phrase "Term Loans"
in each place where such latter phrase appears.
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7. Amendment to Section 2.18 (Pro Rata Treatment and Payments). (a)
Section 2.18 of the Credit Agreement is amended by adding the phrase
"Incremental Term Loan Percentages," immediately after the phrase "Term Loan
Percentages,".
(b) Section 2.18 of the Credit Agreement is amended by deleting
paragraph (b) in its entirety and substituting therefor the following:
(b) Each payment (including each prepayment) by the Borrower on
account of principal of and interest on the Term Loans shall be made
pro rata according to the respective outstanding principal amounts of
the Term Loans then held by the Term Loan Lenders (except as otherwise
provided in Section 2.18(d)). Except as otherwise provided in Section
2.11, as among the Term Loans, prepayments shall be applied 75%
ratably to the respective remaining installments thereof and 25% in
the direct order to the respective next four installments thereof (or,
to the extent that the aggregate principal amount of the next four
installments of the Term Loan Facility is less than such 25%, the
excess shall be applied ratably to the respective remaining
installments thereof). Each payment (including each prepayment) by the
Borrower on account of principal of and interest on the Incremental
Term Loans shall be made pro rata according to the respective
outstanding principal amounts of the Incremental Term Loans then held
by the Incremental Term Loan Lenders (except as otherwise provided in
Section 2.18(d)). Except as otherwise provided in Section 2.11, as
among the Incremental Term Loans, prepayments shall be applied 75%
ratably to the respective remaining installments thereof and 25% in
the direct order to the respective next four installments thereof (or,
to the extent that the aggregate principal amount of the next four
installments of the Incremental Term Loan Facility is less than such
25%, the excess shall be applied ratably to the respective remaining
installments thereof). Prepayments of the Term Loans and the
Incremental Term Loans pursuant to Section 2.12 shall be applied to
the Term Loans and Incremental Term Loans ratably based on the
respective outstanding principal amounts thereof. Amounts prepaid on
account of the Term Loans may not be reborrowed.
(c) Section 2.18 of the Credit Agreement is amended by deleting
paragraph (d) in its entirety and substituting therefor the following:
(d) Notwithstanding anything to the contrary in Section 2.12 or
2.18, so long as any Revolving Credit Loans are outstanding, each Term
Loan Lender and Incremental Term Loan Lender may, at its option,
decline up to 100% of the portion of any mandatory payment applicable
to the Term Loans or Incremental Term Loans of such Lender;
accordingly, with respect to the amount of any mandatory prepayment
described in Section 2.12 that is allocated to Term Loans or
Incremental Term Loans (such amounts, the "Term Loan Prepayment
Amount"), at any time when Revolving Credit Loans remain outstanding,
the Borrower will, in lieu of applying such amount to the prepayment
of Term Loans or Incremental Term Loans, on the date specified in
Section 2.12 for such prepayment, give the Administrative Agent
telephonic notice (promptly confirmed in writing) requesting that the
Administrative Agent prepare and provide to each Term Loan Lender and
Incremental Term Loan Lender a notice (each, a "Prepayment Option
Notice") as described below. As promptly as practicable after
receiving such notice from the Borrower, the Administrative Agent will
send to each Term Loan Lender and Incremental Term Loan Lender a
Prepayment Option Notice, which shall be in the form of Exhibit H, and
shall include an offer by the Borrower to prepay on the date (each a
"Prepayment Date") that is five Business Days after the date of the
Prepayment Option Notice, the relevant Term Loans and Incremental Term
Loans of such Lender by an amount equal to the portion of the
Prepayment Amount indicated in such Lender's Prepayment Option Notice
as being applicable to such Lender's Term Loans and Incremental Term
Loans. On the Prepayment Date (i) the Borrower
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shall pay to the Administrative Agent the aggregate amount necessary
to prepay that portion of the outstanding relevant Term Loans and
Incremental Term Loans in respect of which Term Loan Lenders and
Incremental Term Loan Lenders have accepted prepayment as described
above (such Lenders, the "Accepting Lenders"), and such amount shall
be applied to reduce the Term Loan Prepayment Amounts, with respect to
each Accepting Lender and (ii) the Borrower shall pay to the
Administrative Agent an amount equal to 100% of the portion of the
Term Loan Prepayment Amount not accepted by the Accepting Lenders, and
such amount shall be applied to the prepayment of the Revolving Credit
Loans without a reduction in the Revolving Credit Commitments.
8. Amendment to Section 2 (Amendment of Terms of Commitment). Section
2 of the Credit Agreement is amended by adding the following at the end thereof:
2.25 Incremental Term Loan Commitments. Subject to the terms and
conditions hereof, each Incremental Term Loan Lender severally agrees to
make a term loan to the Borrower on the Fourth Amendment Effective Date in
an amount not to exceed the amount of the Incremental Term Loan Commitment
of such Lender. The Incremental Term Loans may from time to time be
Eurodollar Loans or Base Rate Loans, as determined by the Borrower and
notified to the Administrative Agent in accordance with Sections 2.2 and
2.13.
2.26 Procedure for Incremental Term Loan Borrowing. The Borrower shall
give the Administrative Agent irrevocable notice (which notice must be
received by the Administrative Agent prior to 12:00 noon, New York City
time, one Business Day prior to the requested Borrowing Date) requesting
that the Incremental Term Loan Lenders make the Incremental Term Loans. The
Incremental Term Loans made on the Fourth Amendment Effective Date shall
initially be Base Rate Loans. Upon receipt of such notice the
Administrative Agent shall promptly notify each Incremental Term Loan
Lender thereof. Not later than 12:00 Noon, New York City time, on the
Fourth Amendment Effective Date each Incremental Term Loan Lender shall
make available to the Administrative Agent at the Funding Office an amount
in immediately available funds equal to the Incremental Term Loan or
Incremental Term Loans to be made by such Lender. The Administrative Agent
shall deposit the amounts made available to the Administrative Agent by the
Incremental Term Lenders in immediately available funds in an account of
the Borrower maintained at the Administrative Agent's principal office.
2.27 Repayment of Incremental Term Loans. The Incremental Term Loan of
each Incremental Term Loan Lender shall mature in 10 consecutive quarterly
installments, commencing on September 30, 2006 and ending on March 4, 2011,
each of which shall be in an amount equal to such Lender's Incremental Term
Loan Percentage multiplied by the amount set forth below opposite such
installment:
Installment Principal Amount
----------- ----------------
September 30, 2006 $ 60,000
December 31, 2006 60,000
March 31, 2007 60,000
June 30, 2007 60,000
September 30, 2007 60,000
December 31, 2007 60,000
March 31, 2008 60,000
June 30, 2008 60,000
September 30, 2008 60,000
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Installment Principal Amount
----------- ----------------
December 31, 2008 60,000
March 31, 2009 60,000
June 30, 2009 60,000
September 30, 2009 60,000
December 31, 2009 60,000
March 31, 2010 60,000
June 30, 2010 5,775,000
September 30, 2010 5,775,000
December 31, 2010 5,775,000
March 4, 2011 5,775,000
9. Amendment to Section 4.1 (Financial Condition). (a) Section 4.1(a)
of the Credit Agreement is amended by adding the following at the end thereof:
(iii) The unaudited pro forma consolidated balance sheet of the
Borrower and its consolidated Subsidiaries as at December 31, 2005
(including the notes thereto) (the "Borrower CBA Pro Forma Balance Sheet"),
copies of which have heretofore been furnished to each Lender, has been
prepared giving effect (as if such events had occurred on December 31,
2005) to (i) the consummation of CBA Acquisition, (ii) the Loans to be made
on the Fourth Amendment Effective Date and the use of proceeds thereof and
(iii) the payment of fees and expenses in connection with the foregoing.
The unaudited pro forma consolidated statement of operations of the
Borrower and its Subsidiaries for the 12-month period ended December 31,
2005 (including the notes thereto) (the "Borrower CBA Pro Forma Income
Statement"; collectively with the Borrower CBA Pro Forma Balance Sheet, the
"Borrower CBA Pro Forma Financial Statements"), copies of which have
heretofore been furnished to each Lender, has been prepared giving effect
(as if such events had occurred on the first day of such 12-month period)
to (i) the consummation of the CBA Acquisition, (ii) the Loans to be made
on the Fourth Amendment Effective Date and the use of proceeds thereof and
(iii) the payment of fees and expenses in connection with the foregoing.
The Borrower CBA Pro Forma Income Statement and the Borrower CBA Pro Forma
Balance Sheet have been prepared based on the best information available to
the Borrower as of the date of delivery thereof (it being understood and
agreed that the best information available will be based on CBA's balance
sheet and income statement as of, and for the year ended, June 30, 2005 as
adjusted for stores to be closed or sold by CBA prior to closing of this
amendment, and adjusted for the impact of estimated additional wholesale
textbooks available to the Company's wholesale textbook division) and
presents fairly in all material respects on a pro forma basis the estimated
consolidated financial condition of the Borrower and its consolidated
Subsidiaries as at December 31, 2005 and the consolidated results of their
operations for the 12-month period then ended assuming that the events
specified in the preceding sentence had actually occurred on the first day
of such 12-month period.
(b) Section 4.1(b) the Credit Agreement is amended by deleting each
reference to the dates "March 31, 2001", "March 31, 2002", "March 31, 2003" and
"December 31, 2003" and substituting therefor, respectively, the dates "March
31, 2003", "March 31, 2004", "March 31, 2005" and "December 31, 2005".
10. Amendment to Section 4.2 (No Change). Section 4.2 of the Credit
Agreement is amended by deleting the date "December 31, 2003" and substituting
therefor the date "March 31, 2005".
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11. Amendment to Section 4.16 (Use of Proceeds). Section 4.16 of the
Credit Agreement is amended by adding the following at the end thereof:
The proceeds of the Incremental Term Loans shall be used to finance
the CBA Acquisition and to pay all fees and expenses associated
therewith and contemplated thereby.
12. Amendment to Section 4.20 (Solvency). Section 4.20 of the Credit
Agreement is amended by adding the following at the end thereof:
Each Loan Party is, and after giving effect to the CBA Acquisition and
the incurrence of all Indebtedness and obligations being incurred in
connection herewith and therewith will be and will continue to be, Solvent.
13. Amendment to Section 7.1(a) (Consolidated Leverage Ratio). Section
7.1(a) of the Credit Agreement is hereby amended by deleting the table contained
therein and inserting in lieu thereof the following table:
Consolidated
Fiscal Quarter Leverage Ratio
-------------- --------------
March 31, 2006 6.00 to 1.0
June 30, 2006 6.25 to 1.0
September 30, 2006 6.00 to 1.0
December 31, 2006 6.00 to 1.0
March 31, 2007 6.00 to 1.0
June 30, 2007 6.00 to 1.0
September 30, 2007 6.00 to 1.0
December 31, 2007 6.00 to 1.0
March 31, 2008 5.50 to 1.0
June 30, 2008 5.50 to 1.0
September 30, 2008 5.50 to 1.0
December 31, 2008 5.50 to 1.0
March 31, 2009 5.00 to 1.0
June 30, 2009 5.00 to 1.0
September 30, 2009 5.00 to 1.0
December 31, 2009 5.00 to 1.0
Thereafter 4.50 to 1.0
14. Amendment to Section 7.1(b) (Consolidated Interest Coverage
Ratio). Section 7.1(b) of the Credit Agreement is amended by deleting the table
contained therein and inserting in lieu thereof the following table:
Consolidated Interest
Fiscal Quarter Coverage Ratio
-------------- --------------
March 31, 2006 2.25 to 1.0
June 30, 2006 2.10 to 1.0
September 30, 2006 2.10 to 1.0
December 31, 2006 2.10 to 1.0
March 31, 2007 2.15 to 1.0
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Consolidated Interest
Fiscal Quarter Coverage Ratio
-------------- --------------
June 30, 2007 2.15 to 1.0
September 30, 2007 2.15 to 1.0
December 31, 2007 2.15 to 1.0
March 31, 2008 2.15 to 1.0
June 30, 2008 2.00 to 1.0
September 30, 2008 2.00 to 1.0
December 31, 2008 2.00 to 1.0
March 31, 2009 2.00 to 1.0
June 30, 2009 2.00 to 1.0
September 30, 2009 2.00 to 1.0
December 31, 2009 2.00 to 1.0
Thereafter 2.00 to 1.0
Section 7.1(b) of the Credit Agreement is also amended by deleting the proviso
clause at the end thereof.
15. Amendment to Section 7.1(c) (Consolidated Fixed Charge Coverage
Ratio). Section 7.1(c) of the Credit Agreement is amended by deleting the table
contained therein and inserting in lieu thereof the following table:
Consolidated Fixed
Fiscal Quarter Charge Coverage Ratio
-------------- ---------------------
March 31, 2006 1.20 to 1.0
June 30, 2006 1.20 to 1.0
September 30, 2006 1.20 to 1.0
December 31, 2006 1.20 to 1.0
March 31, 2007 1.20 to 1.0
June 30, 2007 1.20 to 1.0
September 30, 2007 1.20 to 1.0
December 31, 2007 1.20 to 1.0
March 31, 2008 1.25 to 1.0
June 30, 2008 1.25 to 1.0
September 30, 2008 1.25 to 1.0
December 31, 2008 1.25 to 1.0
March 31, 2009 1.25 to 1.0
June 30, 2009 1.25 to 1.0
September 30, 2009 1.25 to 1.0
December 31, 2009 1.25 to 1.0
Thereafter 1.25 to 1.0
Section 7.1(c) of the Credit Agreement is also amended by deleting the proviso
clause at the end thereof.
16. Amendment to Section 7.6 (Limitation on Dividends). Section 7.6 of
the Credit Agreement is amended by (i) deleting the word "and" from the end of
paragraph (e), (ii) deleting the
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period from the end of paragraph (f) and substituting therefor the phrase ";
and" and (iii) adding the following new paragraph at the end thereof:
(g) so long as no Default or Event of Default shall have occurred and
be continuing after giving effect thereto, Superholdings or any of its
Subsidiaries may purchase Capital Stock of SuperHoldings pursuant to
SuperHoldings' restricted stock plan provided that the aggregate purchase
price for such Capital Stock (inclusive of reimbursement amounts in respect
of Taxes) shall not exceed $4,000,000.
17. Amendment to Section 7.8 (Limitation on Investments, Loans and
Advances). Section 7.8 of the Credit Agreement is amended by (i) deleting the
word "and" from the end of paragraph (i), (ii) deleting the period from the end
of paragraph (j) and substituting therefor the phrase "; and" and (iii) adding
the following new paragraph at the end thereof:
(k) in addition to the provisions of clause (g) of this Section 7.8,
the Borrower may consummate the CBA Acquisition as long as (i) no Default
or Event of Default shall have occurred or be continuing after giving
effect to the CBA Acquisition, (ii) no Indebtedness shall be assumed by the
Borrower or any of its Subsidiaries in connection with the CBA Acquisition
other than Indebtedness that is refinanced on the Fourth Amendment
Effective Date [except to the extent otherwise permitted pursuant to this
Agreement] and (iii) the Borrower shall be in pro forma compliance with the
covenants set forth in Section 7.1 after giving effect to the CBA
Acquisition (it being agreed that to the extent the cash portion of the
consideration for the CBA Acquisition exceeds $28,000,000 such excess
amount shall be deemed to be a utilization of the basket set forth in
clause (i) of Section 7.8(g)).
18. Amendment to Section 10.1 (Amendments and Waivers). Section 10.1
of the Credit Agreement is amended by adding to clause (i) of the second
sentence the phrase "or any Incremental Term Loans" immediately after the phrase
"any Term Loans".
19. Amendment to Section 10.6 (Successors and Assigns; Participations
and Assignments). Section 10.6 of the Credit Agreement is amended by (i) adding
the phrase "or an Incremental Term Loan" immediately after the phrase "Term
Loan" which appears in clause (i)(B) and (ii) adding the phrase "and the
Incremental Term Facility" immediately after the phrase "Term Facility" which
appears in clause (ii)(A).
20. Representations and Warranties. The Borrower hereby confirms,
reaffirms and restates the representations and warranties set forth in Section 4
of the Credit Agreement, as amended by this Fourth Amendment. The Borrower
represents and warrants that, after giving effect to this Fourth Amendment, no
Default or Event of Default has occurred and is continuing.
21. Amendment Fee. In consideration of the agreement of the Lenders
party to the Credit Agreement immediately prior to the Fourth Amendment
Effective Date to the amendments contained herein, the Borrower agrees to pay to
each such Lender which so agrees on or prior to 5:00 p.m., New York City time,
April 26, 2006 (by executing and delivering to the Administrative Agent or its
counsel this Fourth Amendment on or prior to such time), an amendment fee in an
amount equal to .125% of the aggregate amount of such Lender's Revolving Credit
Commitment and Term Loans in effect immediately prior to the Fourth Amendment
Effective Date; such fees shall be payable on the Fourth Amendment Effective
Date in immediately available funds to the Administrative Agent on behalf of the
applicable Lender.
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22. Effectiveness. This Fourth Amendment shall become effective on the
Fourth Amendment Effective Date (as such term is defined in the Credit
Agreement) upon the satisfaction of the following conditions precedent:
(a) Fourth Amendment. The Administrative Agent shall have received
this Fourth Amendment executed and delivered by the Administrative Agent, the
Borrower, the Lenders party to the Credit Agreement constituting the "Required
Lenders" thereunder, the Lenders party to the Credit Agreement constituting the
"Required Prepayment Lenders", each Additional Revolving Credit Lender and each
Additional Term Lender (or, in the case of any Lender, a lender addendum or
joinder agreement in a form specified by the Administrative Agent).
(b) Fees. The Lenders and the Administrative Agent shall have received
all fees required to be paid on or before the Fourth Amendment Effective Date,
and all expenses required to be paid on or before the Fourth Amendment Effective
Date for which invoices have been timely presented, including, without
limitation, the reasonable fees and expenses of legal counsel, on or before the
Fourth Amendment Effective Date.
(c) Security Documents. (i) The Administrative Agent shall have
received the Acknowledgment and Confirmation, substantially in the form of
Exhibit A hereto, executed and delivered by an authorized officer of the
Borrower and each other Loan Party.
(ii) The Administrative Agent shall have received an executed mortgage
amendment and updated title commitment in respect of each Mortgage in the form
reasonably requested by the Administrative Agent.
(iii) The Borrower and its Subsidiaries shall have taken all actions
required by Section 6.10 of the Credit Agreement with respect to CBA and its
Subsidiaries.
(d) Pro Forma Financial Statements; Financial Statements. The Lenders
shall have received (i) the Borrower Pro Forma CBA Financial Statements, (ii)
reviewed consolidated financial statements of CBA for each of the two most
recently completed fiscal years and (iii) unaudited interim consolidated
financial statements of CBA for each quarterly period ended subsequent to the
date of the latest applicable financial statements delivered pursuant to clause
(ii) of this paragraph and, in the case of quarterly financial statements, such
quarterly period ending at least 45 days prior to the Fourth Amendment Effective
Date, and such financial statements shall be reasonably satisfactory to the
Administrative Agent.
(e) Projections. The Lenders shall have received satisfactory
projections for the Borrower and its Subsidiaries for fiscal years 2006-2011.
(f) Solvency Analysis. The Lenders shall have received a reasonably
satisfactory solvency certificate from the chief financial officer of the
Borrower which shall document the solvency of each of the Borrower and its
Subsidiaries and Holdings and its Subsidiaries after giving effect to the CBA
Acquisition and the Loans made on the Fourth Amendment Effective Date.
(g) Lien Searches. The Administrative Agent shall have received the
results of a recent lien search in each of the jurisdictions of organization of
CBA and its domestic Subsidiaries, and such search results shall be satisfactory
to the Administrative Agent.
(h) CBA Acquisition. The CBA Acquisition shall be consummated
substantially simultaneously with the making of the Loans on the Fourth
Amendment Effective Date. CBA and its
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Subsidiaries shall have no Indebtedness other than Indebtedness that is
refinanced on the Fourth Amendment Effective Date.
(i) Closing Certificate. The Administrative Agent shall have received,
with a counterpart for each Lender, a certificate of the Borrower, dated the
Closing Date, substantially in the form of Exhibit B, with appropriate
insertions and attachments.
(j) Legal Opinions. The Administrative Agent shall have received the
following executed legal opinions:
(i) the legal opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP, counsel to
SuperHoldings, Holdings and the Borrower, substantially in the form of Exhibit
F; and
(ii) the legal opinion of local counsel in Kansas.
Each such legal opinion shall cover such other matters incident to the
transactions contemplated by this Agreement as the Administrative Agent may
reasonably require.
23. 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 the Borrower that would
require a waiver or consent of the Lenders or the Administrative Agent. Except
as expressly amended hereby, the provisions of the Credit Agreement are and
shall remain in full force and effect.
24. New Lenders. Each Lender which was not a Lender prior to the
Effective Date shall become a Lender on the Effective Date for all applicable
purposes of the Credit Agreement and the Loan Documents. Each such Lender
represents that it is familiar with the Credit Agreement and the
creditworthiness and financial condition of the Loan Parties and has made its
own analysis of the Loan Parties in becoming a party to the Credit Agreement.
25. Counterparts. This Fourth Amendment may be executed by the parties
hereto in any number of separate counterparts (including facsimiled
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.
26. GOVERNING LAW. THIS FOURTH AMENDMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS FOURTH AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
27. Expenses. The Borrower agrees to pay or reimburse the
Administrative Agent for all of its out-of-pocket costs and expenses incurred in
connection with the preparation, negotiation and execution of this Fourth
Amendment, including, without limitation, the reasonable fees and disbursements
of counsel to the Administrative Agent.
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IN WITNESS WHEREOF, the parties hereto have caused this Fourth Amendment to
be duly executed and delivered by their proper and duly authorized officers as
of the day and year first above written.
NBC HOLDINGS CORP.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Treasurer
NBC ACQUISITION CORP.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Treasurer
NEBRASKA BOOK COMPANY, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Treasurer
JPMORGAN CHASE BANK, N.A., as
Administrative Agent and as a Lender
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director