EXHIBIT 4.2
SUPPLEMENTAL INDENTURE
Dated as of March 4, 2004
among
NBC ACQUISITION CORP.,
and
THE BANK OF NEW YORK, as Trustee
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10 3/4% Senior Discount Debentures
Due 2009
SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated as of
March 4, 2004, between NBC Acquisition Corp., a Delaware corporation (the
"Company"), and The Bank of New York, as successor to United States Trust
Company of New York, as trustee under the indenture referred to below (the
"Trustee").
W I T N E S S E T H:
WHEREAS, pursuant to the indenture, dated as of February 13, 1998
between the Company and the Trustee (the "Indenture"), the Company duly issued
its 10 3/4% Senior Discount Debentures Due 2009 (the "Debentures") in the
aggregate principal amount of $76 million;
WHEREAS, pursuant to Section 9.2 of the Indenture, the Company and the
Trustee together with the written consent of the holders of at least a majority
in principal amount of the Debentures are authorized to amend or supplement the
Indenture as set forth in this Supplemental Indenture;
WHEREAS, the Company distributed an Offer to Purchase and Consent
Solicitation Statement, dated February 4, 2004 (the "Offer to Purchase"), in
order to, among other things, solicit consents (the "Consents") from the holders
of the Debentures to amendments to the Indenture;
WHEREAS, the Company has received Consents to effect this Supplemental
Indenture pursuant to the Offer to Purchase from the holders of a majority in
principal amount of the Debentures;
WHEREAS, the Company desires and requests the Trustee to execute and
deliver this Supplemental Indenture as herein provided;
WHEREAS, the Company represents and warrants that all conditions and
requirements necessary to make this Supplemental Indenture a valid, binding and
legal instrument in
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accordance with its terms have been performed and fulfilled and the execution
and delivery hereof have been in all respects duly authorized by all necessary
parties.
NOW, THEREFORE, for and in consideration of the premises contained
herein, it is mutually covenanted and agreed for the benefit of all holders of
the Debentures as follows:
Section 1. Capitalized terms used herein without definition shall have
the meanings assigned to them in the Indenture.
Section 2. Section 3.2 of the Indenture is hereby deleted in its
entirety.
Section 3. Section 3.3 of the Indenture is hereby deleted in its
entirety.
Section 4. Section 3.4 of the Indenture is hereby deleted in its
entirety.
Section 5. Section 3.5 of the Indenture is hereby deleted in its
entirety.
Section 6. Section 3.6 of the Indenture is hereby deleted in its
entirety.
Section 7. Section 3.7 of the Indenture is hereby deleted in its
entirety.
Section 8. Section 3.8 of the Indenture is hereby deleted in its
entirety.
Section 9. Section 3.9 of the Indenture is hereby deleted in its
entirety.
Section 10. Section 3.10 of the Indenture is hereby deleted in its
entirety.
Section 11. Section 3.11 of the Indenture is hereby deleted in its
entirety.
Section 12. Section 3.12 of the Indenture is hereby deleted in its
entirety.
Section 13. Section 3.13 of the Indenture is hereby deleted in its
entirety.
Section 14. Section 3.17 of the Indenture is hereby deleted in its
entirety.
Section 15. Section 4.1 of the Indenture is amended as follows:
(a) by deleting paragraph (iii) in its entirety.
Section 16. Section 6.1 of the Indenture is amended as follows:
(a) by deleting paragraph (6) in its entirety;
(b) by deleting paragraph (9) in its entirety; and
(c) by deleting paragraph (10) in its entirety.
Section 17. The Company agrees that the Trustee is permitted to place a
notation about this Supplemental Indenture on the Debentures in accordance with
the provisions of Section 9.5 of the Indenture.
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Section 18. Upon execution and delivery of this Supplemental Indenture,
the terms and conditions of this Supplemental Indenture shall be part of the
terms and conditions of the Indenture for any and all purposes, and all the
terms and conditions of both shall be read together as though they constitute
one instrument, except that in cases of conflict, the provisions of this
Supplemental Indenture will control. The amendments contained in this
Supplemental Indenture shall not become operative until the date on which the
Debentures have been validly accepted for purchase by the Company pursuant to
the Tender Offer (as defined in the Offer to Purchase). If the Debentures are
not accepted for purchase by the Company for any reason, then the Indenture and
the Debentures will remain in effect in their present form.
Section 19. The Trustee accepts this Supplemental Indenture and agrees
to execute the trust created by the Indenture as hereby supplemented, but only
upon the terms and conditions set forth in the Indenture, including the terms
and provisions defining and limiting the liabilities and responsibilities of the
Trustee, which terms and provisions shall in like manner define and limit its
liabilities and responsibilities in the performance of the trust created by the
Indenture as hereby supplemented.
Section 20. The Indenture is hereby supplemented as hereinabove set
forth, is in all respects ratified and confirmed, and the terms and conditions
thereof, supplemented as hereinabove set forth, shall be and remain in full
force and effect.
Section 21. The recitals contained in this Supplemental Indenture shall
be taken as statements made solely by the Company, and the Trustee shall have no
liability or responsibility for their correctness and, without limiting the
generality of the foregoing, the Trustee shall not be responsible in any manner
whatsoever for or with respect to (i) the validity or sufficiency of this
Supplemental Indenture or any of the terms or provisions hereof, (ii) the proper
authorization hereof by the Company by corporate action or otherwise, (iii) the
due execution hereof by the Company, or (iv) the consequences (direct or
indirect and whether deliberate or inadvertent) of any amendment herein provided
for, and the Trustee makes no representation with respect to any such matters.
SECTION 22. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT
GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT
THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
Section 23. The parties may sign any number of copies of this
Supplemental Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed as of the date first written above.
NBC ACQUISITION CORP.
By: /s/ Xxxx X. Xxxxxxxx
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Name: Xxxx X. Xxxxxxxx
Title: President and Secretary
THE BANK OF NEW YORK
By: /s/ Xxxxxxx Xxxxxxx
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Name: Xxxxxxx Xxxxxxx
Title: Assistant Vice President
[Signature Page to NBC Acquisition Corp. Supplemental Indenture]
