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EXHIBIT 4.8
FIRST SUPPLEMENTAL INDENTURE
(Senior Note 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 has issued its 9-5/8% Senior
Secured Notes in the stated principal amount of $85,000,000 (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 Amendments (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 -- 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 Amendments 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 Amendments that the Academy Merger shall have
been consummated on or before 5:00 p.m., E.D.T., June 15, 1997.
First Supplemental Indenture -- 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 Amendments.
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 (collectively,
the "Conforming Merger Amendments"):
(a) La Petite Academy Capital Stock and Intercompany Notes.
Effective as of the Merger Date, Section 4.13 of the Original Indenture
shall, without further action, be deleted in its entirety and be of no
force or effect.
(b) Intercompany Notes. Effective as of the Merger Date, Section
4.17 of the Original Indenture shall, without further action, be deleted
in its entirety and be of no force or effect.
(c) Issuance of Subsidiary Stock. Effective as of the Merger Date,
Section 4.18 of the Original Indenture shall be deleted and replaced in
its entirety, without further action, by the following:
SECTION 4.18. Restriction on Sale
and Issuance of Subsidiary Stock. The
Company will not permit any of its
Subsidiaries to issue any shares of
Preferred Stock, or any rights, options or
warrants with respect thereto, or any
securities convertible into or
exchangeable or exercisable therefor, to
any Person other than the Company or one
or more of its Wholly Owned Subsidiaries
nor will the Company permit any Person
(other than the Company or one or more of
its Wholly Owned Subsidiaries) to own or
hold any such Preferred Stock. In the
event any Wholly Owned
First Supplemental Indenture -- Page 4
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Subsidiary of the Company shall cease to be a
Wholly Owned Subsidiary of the Company, the date
of such event shall be deemed to be the issuance
of Preferred Stock or other Capital Stock of a
Subsidiary of the Company to a Person other than
the Company or one of its Wholly Owned Subsidiaries
if as of the date such former Wholly Owned
Subsidiary ceased to be such a Wholly Owned
Subsidiary or thereafter a Person other than the
Company or one of its Wholly Owned Subsidiaries
owns any Preferred Stock or Capital Stock of any
Subsidiary of the Company.
(d) Notice. 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
(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.
(e) Release of Lien on Pledged Collateral. Effective as of the
Merger Date, the Trustee, acting pursuant to Section 11.5 of the
Indenture, shall direct the Collateral Agent, and the Collateral Agent
agrees, to release the Pledged Collateral from the terms of the Indenture
and the Securities Pledge Agreement and to deliver the Pledged Collateral
to the Company or to any other party the Company may direct by giving
written notice thereof to
First Supplemental Indenture -- Page 5
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the Collateral Agent. Effective as of the Merger Date, the Securities
Pledge Agreement and the Collateral Agency Agreement shall, without
further action, terminate and be of no force or 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.
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:
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Name: Phillip M. Kane
Title: Senior Vice President, Chief
Financial Officer and Treasurer
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Name: Peggy A. Ford
Title: Secretary
LA PETITE ACADEMY, INC.
Attest:
By:
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Name: Phillip M. Kane
Title: Senior Vice President, Chief
Financial Officer and Treasurer
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Name: Peggy A. Ford
Title: Secretary
First Supplemental Indenture -- Page 6
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FLEET NATIONAL BANK, as Trustee and, for
purposes of Section 3.1(e) above, as
Collateral Agent
Attest:
By:
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Name: Robert L. Reynolds
Title: Vice-President
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Name: Phillip G. Kane, Jr.
Title: Vice-President
First Supplemental Indenture -- Page 7
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Exhibit A
OFFICERS' CERTIFICATE
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 9-5/8% Senior Secured Notes due 2001 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.
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Phillip M. Kane, Chief Financial Officer
of Academy and Holdings
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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: $85,000,000 Senior Note 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 9-5/8%
Senior Secured Notes due 2001 in the aggregate original principal amount of
$85,000,000 issued 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, as amended, between Holdings, as Issuer, and Shawmut
Bank Connecticut, National Association, as original Trustee.
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.
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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. ("Holdings"), as original Issuer, and
Shawmut Bank Connecticut, National Association, as original Trustee, as
amended, relating to the 9-5/8% Senior Secured Notes due 2001 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.
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Phillip M. Kane, Chief Financial Officer
of La Petite Academy, Inc.
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Peggy A. Ford, Secretary
of La Petite Academy, Inc.
Exhibit D to First Supplemental Indenture