KINDERCARE LEARNING CENTERS, INC., as Issuer
and
HSBC BANK USA (formerly known as Marine Midland Bank), as Trustee
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FIRST SUPPLEMENTAL INDENTURE
Dated as of September 1, 1999
to
Indenture
Dated as of February 13, 1997
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9 1/2% Senior Subordinated Notes due 2009
9 1/2% Series B Senior Subordinated Notes due 2009
FIRST SUPPLEMENTAL INDENTURE (hereafter, the "First Supplemental
Indenture") dated as of September 1, 1999 between KINDERCARE LEARNING CENTERS,
INC. (hereinafter, the "Company"), a corporation duly organized and existing
under the laws of the State of Delaware, and HSBC BANK USA (formerly known as
Marine Midland Bank) (hereinafter, the "Trustee"), a New York banking
corporation and trust company.
W I T N E S S E T H :
WHEREAS, the Company has heretofore executed and delivered to the
Trustee an Indenture dated as of February 13, 1997 (hereinafter, the
"Indenture") providing for the issuance of the Company's 9 1/2% Senior
Subordinated Notes due 2009 and 9 1/2% Series B Senior Subordinated Notes due
2009 (hereinafter, the "Securities"); and
WHEREAS, pursuant to Section 901 of the Indenture, the Company may,
without the consent of any Holders, when authorized by a Board Resolution, and
the Trustee, at any time and from time to time, enter into one or more
indentures supplemental to the Indenture, in form satisfactory to the Trustee,
for the purpose of making any change to the Indenture that does not adversely
affect the legal rights of any Holder;
WHEREAS, the Board of Directors of the Company has authorized the
execution of this First Supplemental Indenture and its delivery to the Trustee;
WHEREAS, the Company has delivered an Opinion of Counsel to the
Trustee pursuant to Section 903 of the Indenture; and
WHEREAS, all other actions necessary to make this First Supplemental
Indenture a legal, valid and binding obligation of the parties hereto in
accordance with its terms and the terms of the Indenture have been performed;
NOW, THEREFORE, in consideration of the premises and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the
Company covenants and agrees with the Trustee, for the equal and proportionate
benefit of all present and future holders of Securities, as follows:
Section 1. The definition of "Permitted Investment" in Section 101 of
the Indenture shall be amended by adding a new clause (p) as follows:
'(p) guarantees permitted under Section 1010, provided, however, that
the interest on the Indebtedness or other obligation being guaranteed shall
be included in the calculation of Consolidated Interest Expense.'
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Section 2. For all purposes of this First Supplemental Indenture,
except as otherwise herein expressly provided or unless the context otherwise
requires: (i) the terms and expressions used herein shall have the same meanings
as corresponding terms and expressions used in the Indenture; and (ii) the words
"herein", "hereof" and "hereby" and other words of similar import used in this
First Supplemental Indenture refer to this First Supplemental Indenture as a
whole and not to any particular Section hereof.
Section 3. The Trustee accepts this First Supplemental Indenture and
the amendment of the Indenture effected thereby and agrees to execute the trust
created by the Indenture as hereby amended, 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 in
the performance of the trust created by the Indenture as hereby amended. The
Trustee assumes no responsibility for the correctness of the recitals contained
herein, which shall be taken as the statements of the Company. The Trustee makes
no representation and shall have no responsibility as to the validity of this
First Supplemental Indenture or the proper authorization or the due execution
hereof by the Company.
Section 4. Except as hereby expressly amended, the Indenture and the
Securities issued thereunder are in all respects ratified and confirmed and all
the terms, conditions and provisions thereof shall remain in full force and
effect.
Section 5. This First Supplemental Indenture shall form a part of the
Indenture for all purposes, and every holder of Securities heretofore or
hereafter authenticated and delivered shall be bound hereby.
Section 6. This First Supplemental Indenture may be executed in any
number of counterparts, each of which when so executed shall be deemed to be an
original, and all of such counterparts shall together constitute one and the
same instrument.
Section 7. This First Supplemental Indenture shall be construed in
accordance with and governed by the laws of the State of New York.
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IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed, all as of the day and year first
above written.
KINDERCARE LEARNING CENTERS, INC.
By: XXX X. XXXXXXX
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Xxx X. Xxxxxxx
Vice President, Financial Control
and Planning
HSBC BANK USA, as Trustee
By: XXXXX X. XXXXXX
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Xxxxx X. Xxxxxx
Vice President
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