Exhibit 4.1
EXECUTION COPY
SECOND SUPPLEMENTAL
INDENTURE
SECOND SUPPLEMENTAL INDENTURE (this
“ Supplemental Indenture ”), dated as of
November 16, 2006, by and among New Alberto-Culver LLC, a
Delaware limited liability company and successor to the company
formerly named Alberto-Culver Company (“ Alberto-Culver
LLC ”), Alberto-Culver Company, a Delaware corporation
formerly known as New Aristotle Holdings, Inc. (“
Guarantor ”), and The Bank of New York Trust Company,
N.A., as successor in interest to J.P. Morgan 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 Alberto-Culver LLC and the Trustee, as amended and
supplemented by the First Supplemental Indenture, dated as of
October 5, 2006 (as so amended and supplemented, the “
Indenture ”).
W I T N E S S E T
H
WHEREAS, Alberto-Culver LLC has
executed and delivered the Indenture, under which there were issued
$120,000,000 of aggregate principal amount of Alberto-Culver
LLC’s 6.375% Debentures due June 15, 2028 (the “
Alberto-Culver LLC Debentures ”) in accordance with
the terms of the Indenture;
WHEREAS, Alberto-Culver LLC entered
into the Investment Agreement, dated as of June 19, 2006, as
amended, among Alberto-Culver LLC, New Aristotle Company, Sally
Holdings, Inc. (“ Sally ”), New Sally Holdings,
Inc. (“ New Sally ”) and CDRS Acquisition LLC
(the “ Investment Agreement ”);
WHEREAS, pursuant to the Investment
Agreement, Alberto-Culver LLC agreed, among other things and
subject to the terms and conditions of the Investment Agreement, to
the distribution of all of the issued and outstanding shares of
common stock of Guarantor on a pro rata basis to the holders of
record of New Sally common stock upon the terms and subject to the
conditions set forth in the Separation Agreement, dated as of
June 19, 2006, as amended, among Alberto-Culver LLC, New
Sally, Sally and Guarantor; and
WHEREAS, this Supplemental Indenture
amends the Indenture, pursuant to Section IX.1 thereof, to provide
for the full and unconditional guarantee by the Guarantor of the
full and punctual payment, when due, of the principal of, premium,
if any, and interest on the Alberto-Culver LLC Debentures
previously issued under the Indenture and outstanding on the date
of this Supplemental Indenture, and the full and punctual
performance within any applicable grace period of all other
obligations of Alberto-Culver LLC under the Alberto-Culver LLC
Debentures or under the Indenture as applicable to the
Alberto-Culver LLC Debentures (the “ Debentures
Guarantee ”).
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 for the benefit of the other parties and
for the equal and ratable benefit of the Holders of the
Alberto-Culver LLC Debentures:
ARTICLE I
DEFINITIONS
Capitalized terms used herein but
not defined herein shall have the specified meanings therefor set
forth in the Indenture.
ARTICLE II
GUARANTEE
SECTION 2.01.
Subject to the provisions of the
Indenture and any supplemental indenture thereto, Guarantor hereby
irrevocably and unconditionally guarantees to each Holder of a
Alberto-Culver LLC Debenture outstanding on the date hereof or any
Alberto-Culver LLC Debenture thereafter authenticated and delivered
by the Trustee and to the Trustee and its successors and assigns:
(i) the full payment of principal of (and premium, if any) and
interest on the Alberto-Culver LLC Debentures when due, whether at
maturity, by acceleration or otherwise, (ii) in case of any
extension of time in payment or renewal of any Alberto-Culver LLC
Debentures or pursuant to any cure period provisions of the
Alberto-Culver LLC Debentures or the Indenture, the full payment
when due in accordance with the terms of the extension or renewal
or cure period, (iii) the full and punctual payment of all
other monetary obligations of Alberto-Culver LLC under the
Indenture with respect to the Alberto-Culver LLC Debentures and
(iv) the full and punctual performance within any applicable
grace period of all other obligations of Alberto-Culver LLC under
the Indenture with respect to the Trustee or the Alberto-Culver LLC
Debentures. Guarantor agrees that this is a guarantee of payment
and not a guarantee of collection. For the avoidance of doubt, the
Debentures Guarantee does not extend to nor shall it benefit the
Holder of any Security issued under the Indenture other than the
Alberto-Culver LLC Debentures, including any Security authorized
and issued after the date hereof, unless the terms of such Security
specifically make this Debentures Guarantee applicable thereto and
Guarantor consents to such application.
Guarantor hereby agrees that its
obligations with regard to the Debentures Guarantee shall be
unconditional, irrespective of any circumstances which might
otherwise constitute a legal or equitable defense of a guarantor.
In the event of a default in the payment of principal, interest or
premium (if any), the Trustee or any Holder of a Alberto-Culver LLC
Debenture may seek to enforce the Debentures Guarantee against
Guarantor without first proceeding against Alberto-Culver LLC.
Guarantor further, to the extent permitted by law, hereby waives
(a) any defense that may arise by reason of the incapacity,
lack of authority, death or disability of any other person or the
failure of the Trustee, the Holders or Alberto-Culver LLC (each a
“ Benefitted Party ”) to file or enforce a claim
against the estate (in administration, bankruptcy or any other
proceeding) of any other person, (b) notice of the existence,
creation or incurring of any new or additional indebtedness or
obligation, (c) any defense based upon an election of remedies
by a Benefitted Party, including, but not limited to, an election
law which provides that the obligation of a surety must be neither
larger in amount nor in other respects more burdensome than that of
the principal, (d) any defense arising because of a Benefitted
Party’s election, in any proceeding instituted under Federal
bankruptcy law, of the application of 11 U.S.C.
Section 1111(b)(2) or (e) any defense based on any
borrowing or grant of a security interest under 11 U.S.C.
Section 364. Guarantor hereby covenants that the Debentures
Guarantee shall not be discharged except by complete payment of
principal, interest and premium (if any) in accordance with the
provisions contained in the Alberto-Culver LLC Debentures, the
Debentures Guarantee, the Indenture and any supplemental indenture
thereto.
2
If any Holder or the Trustee is
required by any cour
