Exhibit 99.9
AMENDMENT
New Mountain Partners, L.P., a Delaware limited partnership ("New
Mountain"), desires to amend, effective as of the 14th day of January 2004, the
Registration Rights Agreement by and between New Mountain, MidOcean Capital
Investors, L.P. (formerly DB Capital Investors, L.P.) and Xxxxxxx Education,
Inc., dated as of May 15, 2001 (the "Registration Rights Agreement").
Capitalized terms used herein without definition have the respective meanings
set forth in the Registration Rights Agreement.
1. Amendments of the Registration Rights Agreement. (a) The definition of
"Affiliate" in Section 1 of the Registration Rights Agreement is hereby amended
and restated in its entirety as follows (for ease of reference only, changed
language is indicated by blacklining below, but such blacklining shall have no
substantive effect in the Registration Rights Agreement):
"Affiliate" of any specified Person means any other Person which,
directly or indirectly, is in control of, is controlled by, or is under
common control with such specified Person. For purposes of this
definition, control of a Person means the power, direct or indirect, to
direct or cause the direction of the management and policies of such
Person whether by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing. Solely for the
purpose of determining the availability of the rights and privileges
granted pursuant to this Registration Rights Agreement and without
reference to the definition set forth above, the New Mountain Xxxxxxx
Trust shall be deemed to be an Affiliate of New Mountain Partners, L.P.
(b) Section 2(a) of the Registration Rights Agreement is hereby
amended to add the following sentence to the end thereof:
"Notwithstanding anything in this Agreement to the contrary, New
Mountain Xxxxxxx Trust shall not be entitled to exercise any rights of a
Covered Holder to require the Company to register its Registrable
Securities pursuant to this Section 2(a).
2. Effectiveness. This Amendment shall become effective as of the date
first above written.
3. Confirmation of Registration Rights Agreement. Except as set forth in
paragraph 1 of this Amendment and in the Letter Agreement between New Mountain,
DB Capital Investors, L.P. and Xxxxxxx Education, Inc., dated as of November 14,
2002, the terms, conditions and agreements set forth in the Registration Rights
Agreement are hereby ratified and confirmed and shall continue in full force and
effect.
4. Counterparts; Governing Law. This Amendment may be executed in any
number of counterparts, each of which shall be deemed an original and all of
which taken together shall constitute one and the same instrument. THIS
AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ALL RESPECTS IN
ACCORDANCE WITH THE LAWS OF THE STATE OF MARYLAND.
IN WITNESS WHEREOF, the undersigned has caused this Amendment to be
executed as of the date first above written.
NEW MOUNTAIN PARTNERS, L.P.
By: NEW MOUNTAIN INVESTMENTS, L.P., its
general partner
By: NEW MOUNTAIN GP, LLC, its
general partner
By: /s/Xxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Member
XXXXXXX EDUCATION, INC.
By: /s/ Xxxxxx X. XxXxxxxx
-------------------------------------
Name: Xxxxxx XxXxxxxx
Title: General Counsel
MIDOCEAN CAPITAL INVESTORS, L.P.
By: MIDOCEAN CAPITAL PARTNERS, L.P., its
general partner
By: EXISTING FUND GP, LTD., its
general partner
By: /s/ Xxxxxx Spring
-------------------------------------
Name: Xxxxxx Spring
Title: Principal
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