Supplemental Indenture

EX-4.2 5 c83996exv4w2.txt SUPPLEMENTAL INDENTURE EXHIBIT 4.2 SUPPLEMENTAL INDENTURE Dated as of March 4, 2004 among NBC ACQUISITION CORP., and THE BANK OF NEW YORK, as Trustee --------------------------------------------- 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 -2- 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. -3- 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/ Mark W. Oppegard ------------------------------------------- Name: Mark W. Oppegard Title: President and Secretary THE BANK OF NEW YORK By: /s/ Sirojni Dindial ------------------------------------------- Name: Sirojni Dindial Title: Assistant Vice President [Signature Page to NBC Acquisition Corp. Supplemental Indenture]