EXHIBIT 99.2
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FIRST SUPPLEMENTAL INDENTURE
Dated as of _________ __, 2003
between
NBC ACQUISITION CORP.
and
THE BANK OF NEW YORK,
as Trustee
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10 3/4% Senior Discount Debentures due 2009
FIRST SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated as
of _________ __, 2003, 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 "Securities") in the
aggregate principal amount at maturity of $76.0 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 Securities, are authorized to amend or supplement the
Indenture as set forth in this Supplemental Indenture;
WHEREAS, the Company distributed a Consent Solicitation Statement,
dated October 6, 2003 (as amended, the "Consent Solicitation Statement"), in
order to, among other things, solicit consents (the "Consents") from the Holders
of the Securities to amendments to the Indenture; and
WHEREAS, the Company and the Trustee desire and have agreed to execute
and deliver this Supplemental Indenture as herein provided and all conditions
and requirements necessary to make this Supplemental Indenture a valid, binding
and legal instrument in 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 Securities as follows:
Section 1. Capitalized terms used herein without definition
shall have the meanings assigned to them in the Indenture.
Section 2. Section 1.1 of the Indenture is hereby amended as
follows:
(a) The definition of "Consolidated Interest Expense" is
amended by inserting the words "or the Transactions" following the word
"Recapitalization" appearing in the parenthetical phrase in clause (ii)
of such definition.
(b) The definition of "Consolidated Net Income" is
amended as follows:
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(i) by deleting "and (vi)" appearing therein and
replacing it with "; (vi)"; and
(ii) by adding the following new clause (vii)
after clause (vi):
"and (vii) any expenses, amortization and charges
related to the Transactions."
(c) The definition of "Permitted Liens" is amended as
follows:
(i) by deleting "and (p)" appearing therein and
replacing it with "; (p)"; and
(ii) by adding the following new clause (q) after
clause (p):
"; and (q) Liens securing (x) Indebtedness and other
obligations under the Credit Agreement and any
agreements relating thereto Incurred in accordance
with the terms of this Indenture, (y) Indebtedness
and other obligations under Interest Rate Agreements
and hedging agreements entered into with any lender
under the Credit Agreement (or an Affiliate of any
such lender) and (z) Indebtedness and other
obligations under any cash management services
agreements with any lender under the Credit Agreement
(or an Affiliate of any such lender)."
(d) A new definition of "Transactions" is added
immediately following the definition of "TIA", to read in its entirety
as follows:
""Transactions" means, collectively, (a) entering
into credit facilities contemplated by that
commitment letter, dated September 30, 2003, to
Nebraska Book from ▇.▇. ▇▇▇▇▇▇ Securities Inc.,
JPMorgan Chase Bank, Citicorp North America, Inc. and
Citigroup Global Markets Inc., (b) all Indebtedness
under the Credit Agreement, dated as of February 13,
1998, among the Company, Nebraska Book, any
guarantors party thereto, JPMorgan Chase Bank, as
administrative agent for the lenders, and the lenders
named therein, as amended from time to time through
[November __, 2003],1 is refinanced and/or repaid
(including by virtue of being deemed to be
outstanding under the credit facilities referred to
in clause (a)), (c) repurchasing or
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1 Date of Supplemental Indenture.
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redeeming Capital Stock, including the purchase and
cancellation of employee stock options, in an
aggregate purchase price and/or payment amount not to
exceed $86.0 million, (d) obtaining the consent of
the Holders of the Securities to the amendment of the
Indenture to permit the Transactions, as further
described in the consent solicitation statement dated
October 6, 2003, and (e) obtaining the consent of the
holders of the Senior Subordinated Notes to the
amendment of the Senior Subordinated Notes Indenture
to permit the Transactions, as further described in
the consent solicitation statement dated October 6,
2003."
Section 3. Section 3.5(b) of the Indenture is amended as
follows:
(a) by deleting "and (vi)" appearing therein and
replacing it with "(vi)"; and
(b) by adding the following new clause (vii) after clause
(vi):
"and (vii) to the extent that Restricted Payments are
not permitted by Section 3.5(a), Restricted Payments
made as part of or in connection with the
Transactions; PROVIDED, HOWEVER, that the aggregate
amount of Restricted Payments made as part of or in
connection with the Transactions pursuant to Section
3.5(a) and this clause (vii) shall not exceed $86.0
million; and PROVIDED, FURTHER, that that any such
Restricted Payments made pursuant to this clause
(vii) shall be excluded in the calculation of the
amount of Restricted Payments."
Section 4. The Company agrees that the Trustee is permitted to
place a notation about this Supplemental Indenture on the Notes in accordance
with the provisions of Section 9.5 of the Indenture.
Section 5. 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.
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Section 6. The Indenture, 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 7. The recitals contained in this Supplemental Indenture
shall be taken as the 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 8. The amendments set forth in Sections 2 and 3 above
will only become operative on the date (the "Operative Date") on which (i) the
credit facilities contemplated by the commitment letter, dated September 30,
2003, to Nebraska Book from ▇.▇. ▇▇▇▇▇▇ Securities Inc., JPMorgan Chase Bank,
Citicorp North America, Inc. and Citigroup Global Markets Inc. are entered into
and are in full force and effect, (ii) all Indebtedness under the Credit
Agreement, dated as of February 13, 1998 among the Company, Nebraska Book, any
guarantors party thereto, JPMorgan Chase Bank, as administrative agent for the
lenders, and the lenders named therein, as amended from time to time through the
date hereof, is refinanced and/or repaid (including by virtue of being deemed to
be outstanding under the credit facilities referred to in clause (i)), (iii)
Nebraska Book has obtained the consent of the holders of the Senior Subordinated
Notes to the amendment of the Senior Subordinated Notes Indenture to permit the
Transactions, as further described in the Consent Solicitation Statement, dated
October 6, 2003 (the "Nebraska Book Consent Solicitation Statement"), and (iv)
Nebraska Book, Specialty Books, Inc. and The Bank of New York, as trustee, have
entered into a supplement indenture to the Senior Subordinated Note Indenture to
give effect to the amendments described in the Nebraska Book Consent
Solicitation Statement. Any Consent Fees (as defined in the Consent Solicitation
Statement) payable to holders of Securities as consideration for their Consents
pursuant to the Consent Solicitation Statement shall not be payable unless and
until the Operative Date occurs. If the Operative Date does not occur by
[January 2, 2004],2 then the amendments set forth in Sections 2 and 3 shall have
no effect, the Indenture shall be amended without any further action so that it
reads the same as it did immediately prior to the date hereof and no Consent
Fees shall be payable by the Company.
SECTION 9. 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.
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2 90 days after the Record Date.
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Section 10. 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.
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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:
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Name:
Title:
THE BANK OF NEW YORK
By:
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Name:
Title:
