FIRST SUPPLEMENTAL INDENTURE
Exhibit 4.01
FIRST SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of October 5, 2006, by and among Xxxxxxx-Xxxxxx Company, a Delaware corporation (“Xxxxxxx-Xxxxxx”) and The Bank of New York Trust Company, N.A., as successor in interest to X.X. Xxxxxx Trust Company, N.A., successor in interest to Bank One, N.A., formerly The First National Bank of Chicago, as trustee (the “Trustee”) under the Indenture, dated as of June 10, 1998, between Xxxxxxx-Xxxxxx and the Trustee (the “Indenture”).
W I T N E S S E T H
WHEREAS, Xxxxxxx-Xxxxxx has executed and delivered the Indenture, under which there were issued $120,000,000 of aggregate principal amount of Xxxxxxx-Xxxxxx’x 6.375% Debentures due June 15, 2028 (the “Xxxxxxx-Xxxxxx Debentures”) in accordance with the terms of the Indenture;
WHEREAS, Xxxxxxx-Xxxxxx entered into the Investment Agreement, dated as of June 19, 2006 (as amended from time to time, the “Investment Agreement”), among (i) Xxxxxxx-Xxxxxx, (ii) New Aristotle Company, a Delaware corporation and, as of the date hereof, a wholly-owned subsidiary of New Xxxxx (“Merger Sub”), (iii) Xxxxx Holdings, Inc., a Delaware corporation and, as of the date hereof, a wholly-owned subsidiary of Xxxxxxx-Xxxxxx, (iv) New Xxxxx Holdings, Inc., a Delaware corporation and, as of the date hereof, a wholly-owned subsidiary of Xxxxxxx-Xxxxxx (“New Xxxxx”) and (v) CDRS Acquisition LLC, a Delaware limited liability company (the “Investor”), which Investment Agreement was filed by Xxxxxxx-Xxxxxx with the Securities and Exchange Commission as Exhibit 2.02 to its Form 8-K, dated June 22, 2006 (the “Form 8-K”);
WHEREAS, pursuant to the Investment Agreement, Xxxxxxx-Xxxxxx agreed, among other things and subject to the terms and conditions of the Investment Agreement, to consummate the following transactions: (a) the merger (the “Xxxxxxx-Xxxxxx Merger”) of Merger Sub with and into Xxxxxxx-Xxxxxx, whereby each share of common stock, $0.22 par value per share, of Xxxxxxx-Xxxxxx, will be converted into one share of common stock, par value $0.01 per share, of New Xxxxx (the “New Xxxxx Common Stock”), whereupon Xxxxxxx-Xxxxxx will be the surviving corporation and Xxxxxxx-Xxxxxx will become a wholly-owned subsidiary of New Xxxxx; (b) immediately after the effective time of the Xxxxxxx-Xxxxxx Merger, the conversion of Xxxxxxx-Xxxxxx into a limited liability company organized under the laws of the State of Delaware (“New Xxxxxxx-Xxxxxx LLC”), whereby the outstanding shares of Xxxxxxx-Xxxxxx will be converted into membership interests in New Xxxxxxx-Xxxxxx LLC; (c) the distribution by New Xxxxxxx-Xxxxxx LLC of all of the outstanding shares of common stock, no par value, of Xxxxx Holdings, Inc., to New Xxxxx (the “Xxxxx Distribution”); (d) the contribution by New Xxxxx of all of the membership interests of New Xxxxxxx-Xxxxxx LLC to New Aristotle Holdings, Inc., a Delaware corporation and wholly-owned subsidiary of New Xxxxx (“New Xxxxxxx-Xxxxxx”); (e) the issuance and sale to Investor of shares of New Xxxxx Class A common stock, $0.01 par value per share; (f) the distribution (the “Share Distribution”) of all of the issued and outstanding shares of common stock of New Xxxxxxx-Xxxxxx on a pro rata basis to the holders of record of New Xxxxx Common Stock upon the terms and subject to the conditions set forth in the Separation Agreement, dated as of June 19, 2006, between Xxxxxxx-Xxxxxx, New Xxxxx, Xxxxx and New Xxxxxxx-Xxxxxx and filed as Exhibit 2.01 to its Form 8-K (the “Separation Agreement”); and (g) prior to the Share Distribution, the payment by New Xxxxx of a special cash dividend to holders of record of New Xxxxx Common Stock upon the terms and subject to the conditions set forth in the Separation Agreement in the amount of $25.00 per share of New Xxxxx Common Stock (the transactions described in the foregoing clauses (a) through (g), the “Transactions”);
WHEREAS, Xxxxxxx-Xxxxxx has distributed a Consent Solicitation Statement, dated as of September 28, 2006 (the “Consent Solicitation Statement”) and accompanying Letter of Consent (the “Letter of Consent”), to the Holders of the Xxxxxxx-Xxxxxx Debentures;
WHEREAS, in accordance with Section IX.2 of the Indenture, Xxxxxxx-Xxxxxx and the Trustee may amend the Indenture by entering into a supplemental indenture with the written consent of the holders of at least a majority in principal amount of the Xxxxxxx-Xxxxxx Debentures of each Series affected by such supplemental indenture; and
WHEREAS, pursuant to the Consent Solicitation Statement, the Holders of at least a majority in aggregate principal amount of the Xxxxxxx-Xxxxxx Debentures outstanding (excluding for this purpose any Xxxxxxx-Xxxxxx
Debentures held by Xxxxxxx-Xxxxxx or any affiliate of Xxxxxxx-Xxxxxx) have consented to the amendments effected by this Supplemental Indenture in accordance with the provisions of the Indenture, and evidence of such consents has been provided by Xxxxxxx-Xxxxxx to the Trustee, and all other conditions precedent, if any, provided for in the Indenture relating to the execution of this Supplemental Indenture have been complied with as of the date hereof.
NOW THEREFORE, in consideration of the foregoing and the mutual premises and covenants contained herein and for other good and valuable consideration, the parties hereto agree as follows:
SECTION 1.01. DEFINITIONS. Capitalized terms used but not defined in this Supplemental Indenture shall have the specified meanings therefor set forth in the Indenture.
SECTION 1.02. EFFECTIVENESS OF SUPPLEMENTAL INDENTURE. This Supplemental Indenture shall become operative immediately prior to the closing of the Transactions (the “Operative Time”), promptly following which Xxxxxxx-Xxxxxx will notify the Trustee that such Operative Time has occurred.
SECTION 1.03. CONSENT AND WAIVER. As acknowledged and agreed by the Holders of a majority of the outstanding Xxxxxxx-Xxxxxx Debentures, by such Holders’ execution and delivery of Consents, such Holders have consented to the Transactions and waive compliance by Xxxxxxx-Xxxxxx with Section VIII.1 of the Indenture in connection therewith.
SECTION 1.04. ACKNOWLEDGMENT. As acknowledged and agreed by the Holders of a majority of the outstanding Xxxxxxx-Xxxxxx Debentures, by such Holders’ execution and delivery of Consents, following the consummation of the Transactions, neither New Xxxxx nor any of its subsidiaries shall have any obligation or liability with respect to the Xxxxxxx-Xxxxxx Debentures and that none of them shall be subject to any covenant or any other term of the Indenture.
SECTION 1.05. RATIFICATION OF INDENTURE; SUPPLEMENTAL INDENTURE PART OF INDENTURE. Except as expressly set forth herein, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder shall be bound hereby.
SECTION 1.06. CONCERNING THE TRUSTEE. The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made solely by Xxxxxxx-Xxxxxx. The Trustee enters into this Supplemental Indenture in reliance on delivery of an Officers’ Certificate and Opinion of Counsel, as contemplated by Section IX.3 of the Indenture, and subject to Section VI.1 of the Indenture makes no independent determination that this Supplemental Indenture is authorized or permitted by the Indenture. The Trustee accepts the trusts created by the Indenture, as amended and supplemented by this Supplemental Indenture, and agrees to perform the same upon the terms and conditions of the Indenture, as amended and supplemented by this Supplemental Indenture. All of the provisions contained in the Indenture in respect of the rights, privileges, immunities, powers, and duties of the Trustee shall be applicable in respect of the Supplemental Indenture as fully and with like force and effect as though fully set forth in full herein. Xxxxxxx-Xxxxxx agrees to pay all amounts due to the Trustee under Section VI.7 of the Indenture arising under or in connection with this Supplemental Indenture.
SECTION 1.07. GOVERNING LAW. This Supplemental Indenture shall be governed by and construed in accordance with the laws of the State of New York without giving effect to the conflict of laws provisions thereof.
SECTION 1.08. EFFECT OF HEADINGS. The Article and Section headings herein are for convenience only and shall not affect the construction thereof.
SECTION 1.09. COUNTERPARTS. This instrument may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument.
[Signatures on following page]
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed, all as of the date first written above.
XXXXXXX-XXXXXX COMPANY | ||
By: | /s/ Xxxx X. Xxxxxxx | |
Name: | Xxxx X. Xxxxxxx | |
Title: | Senior Vice President, General Counsel and Secretary | |
THE BANK OF NEW YORK TRUST COMPANY, N.A. | ||
By: | /s/ Xxxxxx Xxx Xxxxxxx | |
Name: | Xxxxxx Xxx Xxxxxxx | |
Title: | Vice President |