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EXHIBIT 4.7
FIRST SUPPLEMENTAL INDENTURE
(Subordinated Exchange Debenture Indenture)
FIRST SUPPLEMENTAL INDENTURE, dated as of May 19, 1997, between LA PETITE
HOLDINGS CORP., a Delaware corporation, as original Issuer (the "Company" or
"Holdings"), LA PETITE ACADEMY, INC., a Delaware corporation ("Academy" or,
after the Merger Date, the "Company"), and FLEET NATIONAL BANK, a national
banking association, as successor Trustee (the "Trustee").
Recitals
(a) The Company and the Trustee (through its predecessor, Shawmut Bank
Connecticut, National Association) have entered into an Indenture dated as of
July 15, 1993, pursuant to which the Company may issue its 12-1/8% Subordinated
Exchange Debentures due 2003 in an aggregate principal amount not to exceed
$36,342,046 (the "Original Indenture").
(b) Subject to the terms of this First Supplemental Indenture, the Company
intends to merge with and into Academy, with Academy being the sole surviving
entity (the "Academy Merger"). The effective time and date of the Academy
Merger is referred to herein as the "Merger Date."
(c) Effective as of the Merger Date, (i) Academy is to assume the due and
punctual payment of the principal of, premium, if any, and interest on all of
the Securities and the performance of every covenant of the Indenture on the
part of Holdings to be performed or observed, and (ii) certain conforming
amendments to the Original Indenture relating to the Academy Merger are to
become effective.
(d) Pursuant to Section 9.1(d) of the Indenture, the Company and the
Trustee may, without the consent of the Holders, amend or supplement the
Indenture to evidence the merger of Holdings into Academy in accordance with
and subject to the terms and conditions of the Indenture and the Securities.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
The parties agree as follows for the benefit of each other and for the
equal and ratable benefit of the Holders:
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ARTICLE I
Section 1.1 Definitions.
For purposes of this First Supplemental Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(a) terms defined in the preamble and recitals hereto or the other
Articles hereof have the meanings assigned to them therein;
(b) terms defined in this Article have the meaning assigned to
them in this Article, and include the plural as well as the singular;
(c) terms not expressly defined in this First Supplemental
Indenture have the meanings assigned to them in Article One of the
Original Indenture, or as otherwise defined in the Original Indenture; and
(d) "Indenture" means the Original Indenture, as amended by this
First Supplemental Indenture or as otherwise supplemented or amended from
time to time by one or more indentures supplemental thereto or hereto
entered into pursuant to the applicable provisions of the Indenture.
ARTICLE II
Section 2.1 Consent to Merger.
The Trustee hereby consents to the Academy Merger and the Conforming
Merger Amendment (as defined in Article III), subject, however, to the terms
and conditions of this First Supplemental Indenture.
Section 2.2 Assumption by Academy.
Effective as of the Merger Date, (a) Academy assumes all of Holdings'
obligations under the Indenture and the Securities, (b) Academy shall have all
of the rights and obligations of Holdings under the Indenture and the
Securities, and (c) all references in the Indenture and the Securities to the
Company shall be deemed to refer instead to Academy, unless the context clearly
requires otherwise.
Section 2.3 Representations, Warranties and Covenants regarding the
Academy Merger.
Holdings and Academy jointly and severally represent, warrant and covenant
to the Trustee as follows:
First Supplemental Indenture (Subordinated Exchange Debentures) -- Page 2
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(a) Academy is a corporation duly organized and validly existing
under the laws of the State of Delaware;
(b) Immediately before and after giving effect to the Academy
Merger and the assumption contemplated by Section 2.2 of the First
Supplemental Indenture, no Default or Event of Default will occur or be
continuing; and
(c) Neither Academy nor any Subsidiary shall incur or become
obligated with respect to any Indebtedness including Acquired Indebtedness
(other than (i) Acquired Indebtedness that consists of Indebtedness that
could be incurred in accordance with the terms of the Indenture, and (ii)
the assumption by Academy of Holdings' obligations in respect of the
Securities and the Indenture, as more particularly described in Section
2.2 of this First Supplemental Indenture), nor shall any of their
respective properties become subject to any Lien (except Liens that could
be incurred in accordance with the terms of the Indenture) in connection
with or in respect of the Academy Merger.
Section 2.4 Conditions Precedent to Trustee's Consent to Academy Merger.
Notwithstanding anything to the contrary in this First Supplemental
Indenture (including, without limitation, anything to the contrary in Sections
2.1 or 3.1 of this First Supplemental Indenture), the Trustee's consent to the
Academy Merger and the Conforming Merger Amendment is subject to the
satisfaction of the following conditions precedent:
(a) Officers' Certificate. Academy and Holdings shall have
delivered to the Trustee a duly authorized and executed Officers'
Certificate, dated as of the date hereof, substantially in the form of
Exhibit A hereto;
(b) Opinion of Counsel. Shook, Hardy & Bacon L.L.P., counsel to
Holdings and Academy, shall have delivered to the Trustee an executed
Opinion of Counsel, dated as of the date hereof, substantially in the form
of Exhibit B hereto; and
(c) Board Resolutions. The Secretary or Assistant Secretary of
Holdings and Academy shall have delivered to the Trustee a certificate
dated as of the date hereof, substantially in the form of Exhibit C
hereto, attesting to the adoption and continued validity of the board
resolutions of Holdings and Academy authorizing the Academy Merger and the
taking of all actions incidental thereto.
It is a condition subsequent to the Trustee's consent to the Academy
Merger and the Conforming Merger Amendment that the Academy Merger shall have
been consummated on or before 5:00 p.m., E.D.T., June 15, 1997.
First Supplemental Indenture (Subordinated Exchange Debentures) -- Page 3
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Section 2.5 Post-Merger Certificate; Escrow
Promptly after the merger, Academy shall deliver to the Trustee a duly
authorized and executed Officers' Certificate, dated on or about the Merger
Date, substantially in the form of Exhibit D hereto (which certificate shall
have attached to it a copy of the certificate of merger of Holdings and Academy
bearing the file-stamp issued by the Delaware Secretary of State's Office) (the
"Post-Merger Certificate").
All executed originals of this First Supplemental Indenture shall be held
in escrow by the Trustee and shall be released and distributed by the Trustee
to the parties hereto upon the Trustee's receipt of the executed Post-Merger
Certificate.
ARTICLE III
Section 3.1 Conforming Merger Amendment.
In order to evidence the succession in accordance with Article V of
Academy to the rights and duties of Holdings under the Indenture and the
Securities, and pursuant to the Trustee's powers pursuant to Section 9.1 of the
Indenture, Academy, Holdings and the Trustee agree as follows (the "Conforming
Merger Amendment"):
Effective as of the Merger Date, the addresses for notices set forth in
subparagraphs (a) and (b) in Section 10.2 of the Original Indenture shall
be amended, without further action, to read as follows:
(a) if to the Company:
La Petite Academy, Inc.
14 Corporate Woods
8717 West 110th Street, Suite 300
Overland Park, Kansas 66210
Attention: Chief Financial Officer
Telecopier Number: (913) 345-9565
First Supplemental Indenture (Subordinated Exchange Debentures) -- Page 4
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(b) if to the Trustee:
Fleet National Bank
Mail Stop: CTOPO238
777 Main Street
Hartford, Connecticut 06115
Attention: Corporate Trust Administration
Telecopier Number: (860) 986-7920
Except as amended above, all other provisions of Section 10.2 of the
Original Indenture shall remain in effect.
ARTICLE IV
Section. 4.1 Ratification of Provisions of Original Indenture.
All provisions of the Original Indenture not specifically herein deleted,
supplemented or modified are hereby ratified and reaffirmed by the Company and
the Trustee.
Section 4.2 Counterparts.
This First Supplemental Indenture may be executed in counterparts by the
parties hereto.
[The remainder of this page intentionally left blank]
First Supplemental Indenture (Subordinated Exchange Debentures) -- Page 5
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IN WITNESS WHEREOF, the parties have caused this First Supplemental
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
LA PETITE HOLDING CORP.
Attest:
By:____________________________________
Name: Phillip M. Kane
Title: Senior Vice President, Chief
Financial Officer and Treasurer
___________________________
Name: Peggy A. Ford
Title: Secretary
LA PETITE ACADEMY, INC.
Attest:
By:____________________________________
Name: Phillip M. Kane
Title: Senior Vice President, Chief
Financial Officer and Treasurer
___________________________
Name: Peggy A. Ford
Title: Secretary
FLEET NATIONAL BANK, as Trustee
Attest:
By:____________________________________
Name: Robert L. Reynolds
___________________________ Title: Vice President
Name: Phillip G. Kane, Jr.
Title: Vice President
First Supplemental Indenture (Subordinated Exchange Debentures) -- Page 6
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Exhibit A
OFFICERS' CERTIFICATE
(Subordinated Exchange Debenture Indenture)
This Officers' Certificate (the "Certificate") is delivered as of May 19,
1997, by the undersigned, in their respective capacities as officers of LA
PETITE HOLDINGS CORP., a Delaware corporation ("Holdings"), and LA PETITE
ACADEMY, INC., a Delaware corporation ("Academy"), to FLEET NATIONAL BANK, in
its capacity as successor Trustee under the Indenture dated as of April 15,
1993, between La Petite Holdings Corp., as Issuer, and Shawmut Bank
Connecticut, National Association, as original Trustee, as amended, relating to
the 12-1/8% Subordinated Exchange Debentures due 2003 referred to therein (the
"Indenture"). This Certificate is delivered pursuant to Section 5.1 of the
Indenture. Capitalized terms used and not defined in this Certificate shall
have the meanings given to them in the Indenture.
The undersigned, in their respective capacities as officers of Holdings
and Academy, do hereby certify to the Trustee, for the ratable benefit of the
Holders, that:
1. The undersigned are officers of Holdings and Academy and have read the
applicable covenants and conditions of the Indenture relating to the subject
matter of this Certificate and have made such inquiries of counsel and of other
officers or employees of Holdings and Academy and made such other examinations
or investigations as are necessary to issue this Certificate.
2. Upon the filing of the certificate of merger of Holdings and Academy
with the Secretary of State of Delaware, Holdings will merge with and into
Academy effective as of the time and date set forth therein (the "Merger
Date"), with Academy being the sole surviving entity (the "Academy Merger").
3. Effective as of the Merger Date, Academy will assume all obligations of
Holdings under the Indenture and the Securities, including, without limitation,
the due and punctual payment of the principal of, and premium, if any, and
interest on all of the Securities and the performance of every covenant of the
Indenture on the part of Holdings to be performed or observed.
4. No Default or Event of Default exists or will occur as a result of the
Academy Merger.
5. Neither Holdings or Academy will become obligated with respect to any
Indebtedness including Acquired Indebtedness as a result of the Academy Merger
(other than (i) Acquired Indebtedness that consists of Indebtedness that could
be incurred in accordance with the terms of the Indenture, and (ii) the
assumption by Academy of Holdings' obligations in respect of the Securities and
the Indenture), nor will any of their respective properties become subject to
any Lien (except Liens that could be incurred in accordance with the terms of
the Indenture) in connection with or in respect of the Academy Merger.
Exhibit A to First Supplemental Indenture
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6. The Academy Merger will, and the First Supplemental Indenture among
Academy, Holdings and the Trustee dated as of the date hereof (the
"Supplemental Indenture") does, comply with the Indenture (including Section
5.1 thereof), and all conditions precedents in the Indenture relating to the
Academy Merger and the Supplemental Indenture have been satisfied.
IN WITNESS WHEREOF, the undersigned, in their respective capacities as
officers of Academy and Holdings have executed and delivered this Certificate
as of the date first above written.
________________________________________
Phillip M. Kane, Chief Financial Officer
of Academy and Holdings
________________________________________
Peggy A. Ford, Secretary
of Academy and Holdings
Exhibit A to First Supplemental Indenture
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Exhibit B
(Letterhead of Shook, Hardy & Bacon L.L.P.)
May 19, 1997
Fleet National Bank, as successor Trustee
under the Indenture referred to below
Mail Stop: CTOPO238
777 Main Street
Hartford, Connecticut 06115
Re: Subordinated Exchange Debenture Indenture
Ladies and Gentlemen:
We have acted as counsel to La Petite Holdings Corp., a Delaware
corporation ("Holdings"), and La Petite Academy, Inc., a Delaware corporation
("Academy"), in connection with the proposed merger of Holdings into Academy,
with Academy being the surviving entity (the "Academy Merger").
This opinion letter is delivered pursuant to Section 5.1 of the Indenture
dated as of July 15, 1993, between Holdings, as issuer, and Shawmut Bank
Connecticut, National Association, as original trustee, relating to the 12-1/8%
Subordinated Exchange Debentures due 2003 in an aggregate principal amount not
to exceed $36,342,046 issuable thereunder (the "Original Indenture"). The
Original Indenture is being amended on the date hereof pursuant to a First
Supplemental Indenture dated as of the date hereof among Holdings, Academy and
Fleet National Bank, as successor Trustee (the "Supplemental Indenture"). The
Original Indenture, as amended by the Supplemental Indenture, is referred to
herein as the "Indenture." Capitalized terms used and not defined in this
letter have the meanings given to them in the Indenture.
In connection with this opinion, we have examined originals or copies of
the following documents:
(a) the Indenture;
(b) the officers' certificate referred to in Section 2.4 (a) of
the Supplemental Indenture;
Exhibit B to First Supplemental Indenture
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(b) the certificate of merger executed by Holdings and
Academy relating to the Academy Merger which is to be filed in
the Office of the Secretary of State of Delaware;
(c) the resolutions of Holdings and Academy authorizing the
Academy Merger; and
(d) the certificates of incorporation and by-laws of Holdings and
Academy, in each case as amended to date.
In our examination we have assumed the genuineness of all signatures, the
authenticity of all documents submitted to us as originals, the conformity to
original documents of all documents submitted to us as copies and the
authenticity of the originals of such copies. As to questions of fact not
independently verified by us, we have relied, to the extent we have deemed
appropriate, upon representations and certificates of officers of Holdings and
Academy, public officials and other appropriate persons. We have further
assumed that Fleet National Bank has succeeded to the rights of the original
Trustee under the Indenture and has all of the rights and powers of the Trustee
thereunder, and that Fleet National Bank has executed and delivered, pursuant
to due authorization, the Supplemental Indenture.
Based upon the foregoing, and subject to the assumptions, qualifications
and limitations set forth herein, we are of the opinion that:
1. Upon the Academy Merger, Academy will assume all obligations of
Holdings under the Indenture, including, without limitation, the due and
punctual payment of the principal of, premium, if any, and interest on all of
the Securities and the performance of every covenant of the Indenture on the
part of Holdings to be performed or observed.
2. The Supplemental Indenture complies with the provisions of the
Indenture and all conditions precedent in the Indenture relating to the Academy
Merger have been satisfied.
We do not express any opinion herein regarding any laws other than the
General Corporation Law of the State of Delaware.
This opinion is being furnished only to the addressee hereof and is solely
for its benefit. This opinion may not be relied upon for any other purpose, or
relied upon by any other person or entity for any purpose, without in each
instance obtaining our prior written consent.
Very truly yours,
SHOOK, HARDY & BACON L.L.P.
Exhibit B to First Supplemental Indenture
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Exhibit C
SECRETARY'S CERTIFICATE
This Certificate is delivered pursuant to the First Supplemental Indenture
dated on or about the date hereof among LA PETITE HOLDINGS CORP., a Delaware
corporation ("Holdings"), LA PETITE ACADEMY, INC., a Delaware corporation
("Academy"), and FLEET NATIONAL BANK, as successor Trustee under the Indenture
date as of July 15, 1993, between Holdings, as Issuer, and Shawmut Bank
Connecticut, National Association, as original Trustee, as amended, relating to
the 12-1/8% Subordinated Exchange Debentures due 2003 referred to therein.
The undersigned, being the Secretary of Holdings and Academy, does hereby
certify that:
Attached hereto as Exhibit A is a true and correct copy of the
resolutions of the Board of Directors of Holdings and Academy authorizing
the Academy Merger (as such term is defined in the First Supplemental
Indenture referred to above) and the taking of all actions incidental
thereto. Such resolutions have not been modified, revoked or rescinded in
any respect and are in full force and effect in the form adopted.
IN WITNESS WHEREOF, the undersigned has executed and delivered this
Certificate as of May 19, 1997.
___________________________________
Peggy A. Ford, Secretary of La Petite Holdings Corp.
and La Petite Academy, Inc.
Exhibit C to First Supplemental Indenture
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Exhibit A to Secretary's Certificate
(copy of 2/11/97 resolutions)
Exhibit A to Secretary's Certificate
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Exhibit D
OFFICERS' CERTIFICATE
This Officers' Certificate (the "Certificate") is delivered on [Merger
Date] by the undersigned, in their capacities as officers of LA PETITE ACADEMY,
INC., a Delaware corporation ("Academy"), to FLEET NATIONAL BANK, in its
capacity as successor Trustee under the Indenture dated as of April 15, 1993,
between La Petite Holdings Corp., as Issuer, and Shawmut Bank Connecticut,
National Association, as original Trustee, as amended, relating to the 12-1/8%
Subordinated Exchange Debentures due 2003 referred to therein (the
"Indenture"). This Certificate is delivered pursuant to Section 5.1 of the
Indenture. Capitalized terms used and not defined in this Certificate shall
have the meanings given to them in the Indenture.
The undersigned, in their capacities as officers of Academy, do hereby
certify to the Trustee, for the ratable benefit of the Holders, that:
1. The undersigned are officers of Academy and have read the applicable
covenants and conditions of the Indenture relating to the subject matter of
this Certificate and have made such inquiries of counsel and of other officers
or employees of Academy and made such other examinations or investigations as
are necessary to issue this Certificate.
2. Holdings has merged with and into Academy, with Academy being the sole
surviving entity (the "Academy Merger"). A copy of the certificate of merger
evidencing such merger is attached hereto as Exhibit A.
3. Academy has assumed all obligations of Holdings under the Indenture and
the Securities, including, without limitation, the due and punctual payment of
the principal of, and premium, if any, and interest on all of the Securities
and the performance of every covenant of the Indenture on the part of Holdings
to be performed or observed.
4. No Default or Event of Default exists or has occurred as a result of
the Academy Merger.
5. Academy has not become obligated with respect to any Indebtedness
including Acquired Indebtedness as a result of the Academy Merger (other than
(i) Acquired Indebtedness that consists of Indebtedness that could be incurred
in accordance with the terms of the Indenture, and (ii) the assumption by
Academy of Holdings' obligations in respect of the Securities and the
Indenture), nor have any of its properties become subject to any Lien (except
Liens that could be incurred in accordance with the terms of the Indenture) in
connection with or in respect of the Academy Merger.
6. The Academy Merger and the First Supplemental Indenture among Academy,
Holdings, and the Trustee dated as of May 19, 1997 (the "Supplemental
Indenture") comply with the
Exhibit D to First Supplemental Indenture
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Indenture (including Section 5.1 thereof), and all conditions precedents in
the Indenture relating to the Academy Merger and the Supplemental Indenture
have been satisfied.
IN WITNESS WHEREOF, the undersigned, in their capacities as officers of
Academy have executed and delivered this Certificate as of the date first above
written.
________________________________
Phillip M. Kane, Chief Financial Officer
of La Petite Academy, Inc.
________________________________
Peggy A. Ford, Secretary
of La Petite Academy, Inc.
Exhibit D to First Supplemental Indenture