Exhibit 4.1
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FIRST SUPPLEMENTAL INDENTURE
Dated as of February 8, 2001
to
INDENTURE
Dated as of March 15, 1999
between
THE CLOROX COMPANY,
as Issuer
and
THE BANK OF NEW YORK,
as Trustee
FIRST SUPPLEMENTAL INDENTURE
This FIRST SUPPLEMENTAL INDENTURE (this "Agreement"), dated as of
February 8, 2001, is made among THE CLOROX COMPANY, a Delaware corporation (the
"Company") and THE BANK OF NEW YORK, a New York banking corporation, as trustee
under the indenture referred to below (the "Trustee").
WITNESSETH:
WHEREAS, the Company has heretofore executed and delivered to the
Trustee an Indenture, dated as of March 15, 1999, (the "Indenture") providing
for the issuance of an unlimited aggregate principal amount of securities (the
"Securities");
WHEREAS, the Company proposes to create under the Indenture a new
Series of Securities;
WHEREAS, Section 2.2 of the Indenture provides that at or prior to the
issuance of any Securities within a Series, the terms of the Series of
Securities shall be established by a Board Resolution, a supplemental indenture
or an Officers' Certificate pursuant to authority granted under a Board
Resolution;
WHEREAS, all conditions necessary to authorize the execution and
delivery of this First Supplemental Indenture and to make it a valid and binding
obligation of the Company have been done or performed;
NOW THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the Company
and the Trustee mutually covenant and agree as follows:
1. DEFINITIONS.
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(a) "ATTRIBUTABLE DEBT" has the meaning specified in
Section 2(j)(ii).
(b) "COMPARABLE TREASURY ISSUE" means the United States
Treasury security selected by the Reference Treasury
Dealer as having a maturity comparable to the remaining
term of the Notes to be redeemed that would be utilized,
at the time of selection and in accordance with customary
financial practice, in pricing new issues of corporate
debt securities of comparable maturity to the remaining
term of the Notes.
(c) "COMPARABLE TREASURY PRICE" means, with respect to any
redemption date, (A) the average of the Reference
Treasury Dealer Quotations for
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such redemption date, after excluding the highest and
lowest such Reference Treasury Dealer Quotations, or (B)
if the Trustee obtains fewer than three such Reference
Treasury Dealer Quotations, the average of all such
Quotations, or (C) if only one Reference Treasury Dealer
Quotation is received, such Quotation.
(d) "CONSOLIDATED NET TANGIBLE ASSETS" means, as of any
particular time, the total amount of assets (less
applicable reserves) of the Company and all of its
consolidated subsidiaries, taken as a whole, after
deducting therefrom (a) all current liabilities excluding
any thereof which are by their terms extendible or
renewable at the option of the obligor thereon to a time
more than 12 months after the time as of which the amount
thereof is being computed and excluding current
maturities of long-term indebtedness), and (b) all
goodwill, trade names, trademarks, patents, unamortized
debt discount and expense and other like intangible
assets, all as shown in the latest quarterly consolidated
balance sheet of the Company contained in the Company's
then most recent annual report to stockholders or
quarterly report filed with the Securities and Exchange
Commission, as the case may be, except that assets shall
include an amount equal to the Attributable Debt in
respect of any Sale and Lease-Back Transaction not
capitalized on such balance sheet.
(e) "PRINCIPAL PROPERTY" means any manufacturing plant or
facility which is located within the continental United
States and is owned by the Company or any Restricted
Subsidiary. The Company's board of directors (or any duly
authorized committee of the board of directors) by
resolution may create an exception by declaring that a
plant or facility, together with all other plants and
facilities previously so declared, is not of material
importance to the total business conducted by the Company
and its Restricted Subsidiaries as an entirety.
(f) "REFERENCE TREASURY DEALER" means (A) Xxxxxxx Xxxxx
Barney Inc. (or its respective affiliates which are
Primary Treasury Dealers) and its respective successors;
provided, however, that if any of the foregoing shall
cease to be a primary U.S. Government securities dealer
in The City of New York (a "Primary Treasury Dealer"),
the Company shall substitute therefor another Primary
Treasury Dealer; and (B) any other Primary Treasury
Dealer(s) selected by the Company.
(g) "REFERENCE TREASURY DEALER QUOTATION" means, with respect
to each Reference Treasury Dealer and any redemption
date, the average, as determined by the Trustee, of the
bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal
amount) quoted in writing to the Trustee by such
Reference Treasury Dealer at 5:00 p.m. (New York City
time) on the third business day preceding such redemption
date.
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(h) "RESTRICTED SUBSIDIARY" means any Subsidiary: (i)
substantially all of the property of which is located
within the continental United States, (ii) which owns a
Principal Property, (iii) and in which the Company's
investment exceeds 1% of the Company's consolidated
assets as shown on the Company's latest quarterly
financial statements.
(i) "SALE AND LEASE-BACK TRANSACTION" has the meaning
specified in Section 2(j)(ii).
(j) "TREASURY RATE" means, with respect to any redemption
date, the rate per annum equal to the semiannual
equivalent yield to maturity of the Comparable Treasury
Issue, assuming a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal
to the Comparable Treasury Price for such redemption
date.
2. ESTABLISHMENT OF TERMS OF SERIES OF SECURITIES. There is hereby
established a series of securities under the Indenture with the following terms:
(a) TITLE AND CUSIP NUMBER. The title of the Series is "6 1/8%
Notes due February 1, 2011" (the "Notes"). The CUSIP number is 189054 AC 3.
(b) ISSUANCE PRICE. The Notes will be issued at 99.692% of the
principal amount thereof.
(c) AGGREGATE PRINCIPAL AMOUNT. The limit upon the aggregate
principal amount of Notes which may be authenticated and delivered under this
First Supplemental Indenture is $300,000,000.
(d) MATURITY DATE. The date on which the principal of the Notes is
payable is February 1, 2011, subject to the provisions of the Indenture relating
to acceleration.
(e) INTEREST. The Notes will bear interest from February 8,
2001, or from the most recent interest payment date to which interest has
been paid or duly provided for, at a rate of 6 1/8% per annum, payable
semi-annually on February 1 and August 1 of each year, commencing August 1,
2001. The Company will pay interest to the person in whose name a Note is
registered at the close of business on the January 15 or July 15 preceding
the interest payment date. The Company will compute interest on the basis of
a 360-day year consisting of twelve 30-day months.
(f) PLACE AND METHOD OF PAYMENT FOR PRINCIPAL AND INTEREST. The
principal and interest on the Notes shall be payable at the offices of the
Trustee. The method of such payment shall be by wire transfer for Notes held in
book-entry form or by check mailed to the address of the person entitled to the
payment as it appears in the Notes register. If any interest payment date or
maturity or redemption date falls on a day that is not a Business Day, then the
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payment will be made on the next Business Day without additional interest and
with the same effect as if it were made on the originally scheduled date.
(g) OPTIONAL REDEMPTION. All or a portion of the Notes may be
redeemed at the option of the Company at any time or from time to time at a
redemption price equal to the greater of (i) one hundred percent (100%) of the
principal amount of the Notes to be redeemed and (ii) the sum of the present
values of the remaining scheduled payments of principal and interest thereon
(not including any portion of any payments of interest accrued to the redemption
date) discounted to the redemption date on a semiannual basis at the Treasury
Rate, plus 15 basis points, as determined by the Reference Treasury Dealer,
plus, in either case, accrued and unpaid interest thereon to the redemption
date.
Notwithstanding the foregoing, installments of interest on Notes that
are due and payable on interest payment dates falling on or prior to a
redemption date will be payable on the interest payment date to the registered
holders as of the close of business on the relevant record date according to the
Notes and the Indenture. The redemption price will be calculated on the basis of
a 360-day year consisting of twelve 30-day months.
The Company shall mail notice of any redemption at least 30 days but
not more than 60 days before the redemption date to each registered holder of
the Notes to be redeemed. Once notice of redemption is mailed, the Notes called
for redemption will become due and payable on the redemption date and at the
applicable redemption price, plus accrued and unpaid interest to the redemption
date.
On and after the redemption date, interest will cease to accrue on the
Notes or any portion of the Notes called for redemption (unless the Company
defaults in the payment of the redemption price and accrued interest). On or
before the redemption date, the Company shall deposit with a paying agent (or
the Trustee) money sufficient to pay the redemption price of and accrued
interest on the Notes to be redeemed on that date. If less than all of the Notes
of any series are to be redeemed, the Notes to be redeemed shall be selected by
lot by The Depository Trust Company, in the case of Notes represented by a
global security, or by the Trustee by a method the Trustee deems to be fair and
appropriate, in the case of Notes that are not represented by a global security.
(h) FORM, CURRENCY AND DENOMINATIONS. The Company will issue the
Notes only in fully registered form, without coupons, in denominations of $1,000
and multiples of $1,000.
(i) RANKING. The Notes will represent the Company's direct,
unsecured obligations and will rank equally with all of the Company's other
unsecured and unsubordinated indebtedness.
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(j) ADDITIONAL COVENANTS. The changes in and additions to the
covenants set forth in Article IV or V of the Indenture which are applicable to
the Notes are:
(i) LIMITATIONS ON LIENS. The Company will not, nor
will it permit any Restricted Subsidiary to, issue, assume or guarantee
any indebtedness for money borrowed (hereinafter called "Debt"),
secured by a mortgage, security interest, pledge, lien or other
encumbrance (mortgages, security interests, pledges, liens and other
encumbrances being hereinafter in this Section 2(j)(i) called a
"mortgage" or "mortgages") upon any Principal Property of the Company
or any Restricted Subsidiary or upon any shares of stock or
indebtedness of any Restricted Subsidiary (whether such Principal
Property, shares of stock or indebtedness of any Restricted Subsidiary
are now owned or hereafter acquired) without in any such case
effectively providing concurrently with the issuance, assumption or
guaranty of any such Debt that the Notes (together with, if the Company
shall so determine, any other indebtedness of or guaranteed by the
Company or such Restricted Subsidiary ranking equally with the Notes
and then existing or thereafter created) shall be secured equally and
ratably with (or, at the option of the Company, prior to) such Debt so
long as such Debt shall be so secured; PROVIDED, HOWEVER, that the
foregoing restrictions shall not apply to Debt secured by:
(A) mortgages on property, shares of stock or
indebtedness (hereinafter referred to as "Property") of any corporation
existing at the time such corporation becomes a Restricted Subsidiary;
(B) mortgages on property existing at the time of
acquisition of the affected property by the Company or a Restricted
Subsidiary, or mortgages to secure the payment of all or any part of
the purchase price of such property upon the acquisition of such
property by the Company or a Restricted Subsidiary or to secure any
Debt incurred by the Company or a Restricted Subsidiary prior to, at
the time of, or within 360 days after the later of the acquisition, the
completion of construction (including any improvements on an existing
property) or the commencement of commercial operation of such property,
which Debt is incurred for the purpose of financing all or any part of
the purchase price thereof or construction or improvements thereon;
PROVIDED, HOWEVER, that in the case of any such acquisition,
construction or improvement the mortgage shall not apply to any
property theretofore owned by the Company or a Restricted Subsidiary,
other than, in the case of any such construction or improvement, any
real property on which the property so constructed, or the improvement,
is located which in the opinion of the Board of Directors was, prior to
such construction or improvement, substantially unimproved for the use
intended by the Company or such Restricted Subsidiary;
(C) mortgages on property of a Restricted Subsidiary
securing Debt owing to the Company or to another Restricted Subsidiary;
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(D) mortgages on property of a corporation existing
at the time such corporation is merged into or consolidated with the
Company or a Restricted Subsidiary or at the time of a sale, lease or
other disposition of the properties of a corporation or firm as an
entirety or substantially as an entirety to the Company or a Restricted
Subsidiary PROVIDED, HOWEVER, that any such mortgages do not attach to
or affect property theretofore owned by the Company or such Restricted
Subsidiary;
(E) mortgages on property owned or leased by the
Company or a Restricted Subsidiary in favor of the United States of
America or any State thereof, or any department, agency or
instrumentality or political subdivision of the United States of
America or any State thereof, or in favor of any other country or any
political subdivision thereof, or in favor of holders of securities
issued by any such entity, pursuant to any contract or statute
(including, without limitation, mortgages to secure Debt of the
pollution control or industrial revenue bond type) or to secure any
indebtedness incurred for the purpose of financing all or any part of
the purchase price or the cost of construction of the property subject
to such mortgages;
(F) mortgages existing at the date of the Indenture
or at the date of this Agreement;
(G) landlords' liens on fixtures located on premises
leased by the Company or a Restricted Subsidiary in the ordinary course
of business;
(H) mortgages on property of the Company or a
Restricted Subsidiary to secure partial, progress, advance or other
payments or any Debt incurred for the purpose of financing all or any
part of the purchase price or the cost of construction, development, or
substantial repair, alteration or improvement of the property subject
to such mortgages if the commitment for the financing is obtained not
later than one year after the later of the completion of or the placing
into operation (exclusive of test and start-up periods) of such
constructed, developed, repaired, altered or improved property;
(I) mortgages arising in connection with contracts
and subcontracts with or made at the request of the United States of
America, or any state thereof, or any department, agency or
instrumentality of the United States or any state thereof;
(J) mechanics', materialmen's, carriers' or other
like liens arising in the ordinary course of business (including
construction of facilities) in respect of obligations which are not due
or which are being contested in good faith;
(K) any mortgage arising by reason of deposits with,
or the giving of any form of security to, any governmental agency or
any body created or approved by law or governmental regulations, which
is required by law or governmental regulation as a condition to the
transaction of any business, or the exercise of any privilege,
franchise
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or license;
(L) mortgages for taxes, assessments or governmental
charges or levies not yet delinquent, or mortgages for taxes,
assessments or governmental charges or levies already delinquent but
the validity of which is being contested in good faith;
(M) mortgages (including judgment liens) arising in
connection with legal proceedings so long as such proceedings are being
contested in good faith and, in the case of judgment liens, execution
thereon is stayed; or
(N) any extension, renewal or replacement (or
successive extensions, renewals or replacements) in whole or in part of
any mortgage referred to in the foregoing clauses (A) to (M),
inclusive, PROVIDED, HOWEVER, that the principal amount of Debt secured
thereby shall not exceed the principal amount of Debt so secured at the
time of such extension, renewal or replacement mortgage, and that such
extension, renewal or replacement mortgage shall be limited to all or a
part of the property which secured the mortgage so extended, renewed or
replaced (plus improvements on such property).
Notwithstanding the foregoing provisions of this Section, the Company
and any one or more Restricted Subsidiaries may issue, assume or
guarantee Debt secured by mortgages which would otherwise be subject to
the foregoing restrictions in an aggregate amount which, together with
all other Debt of the Company and its Restricted Subsidiaries which (if
originally issued, assumed or guaranteed at such time) would otherwise
be subject to the foregoing restrictions (not including Debt permitted
to be secured under clauses (A) through (N) above), does not at the
time exceed the greater of $300 million and 15% of Consolidated Net
Tangible Assets, as shown on the latest quarterly consolidated
financial statements of the Company preceding the date of
determination.
(ii) SALE AND LEASEBACK. The Company will not, nor
will it permit any Restricted Subsidiary to, enter into any arrangement
with any person providing for the leasing by the Company or any
Restricted Subsidiary of any Principal Property of the Company or any
Restricted Subsidiary (whether such Principal Property is now owned or
hereafter acquired) (except for temporary leases for a term of not more
than three years and except for leases between the Company and a
Restricted Subsidiary or between Restricted Subsidiaries), which
Principal Property has been or is to be sold or transferred by the
Company or such Restricted Subsidiary to such person (herein referred
to as a "Sale and Lease-Back Transaction"), unless (A) the Company or
such Restricted Subsidiary would be entitled, pursuant to the
provisions of Section 2(j)(i), to issue, assume or guarantee Debt
secured by a mortgage upon such Principal Property at least equal in
amount to the Attributable Debt in respect of such arrangement without
equally and ratably securing the Securities, PROVIDED, HOWEVER, that
from and after the date on which such arrangement becomes effective the
Attributable Debt in respect of such
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arrangement shall be deemed for all purposes under Sections 2(j)(i) and
(ii) to be Debt subject to the provisions of Section 2(j)(i); or (B)
the Company shall apply an amount in cash equal to the Attributable
Debt in respect of such arrangement to the retirement (other than any
mandatory retirement or by way of payment at maturity), within 120 days
of the effective date of any such arrangement, of Debt of the Company
or any Restricted Subsidiary (other than Debt owned by the Company or
any Restricted Subsidiary and other than Debt of the Company which is
subordinated to the Securities) which by its terms matures at or is
extendible or renewable at the option of the obligor to a date more
than twelve months after the date of the creation of such Debt.
The term "Attributable Debt" shall mean the present value (discounted
at the actual percentage rate inherent in such arrangement as
determined in good faith by the Company, compounded semi-annually) of
the obligation of a lessee for rental payments during the remaining
term of any lease (including any period for which such lease has been
extended). Such rental payments shall not include amounts payable by
the lessee for maintenance and repairs, insurance, taxes, assessments
and similar charges and for contingent rents (such as those based on
sales). In case of any lease which is terminable by the lessee upon the
payment of a penalty, such rental payments shall also include such
penalty, but no rent shall be considered as required to be paid under
such lease subsequent to the first date upon which it may be so
terminated. Any determination of any actual percentage rate inherent in
any such arrangement made in good faith by the Company shall be binding
and conclusive, and the Trustee shall have no duty with respect to any
determination made under this Section 2(j)(ii).
3. RATIFICATION OF INDENTURE; SUPPLEMENTAL INDENTURES PART OF
INDENTURE. Except as expressly amended hereby, 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 First Supplemental Indenture shall
form a part of the Indenture for all purposes, and every Securityholder
heretofore or hereafter authenticated and delivered shall be bound hereby.
4. DEFINED TERMS. Capitalized terms used herein without definition
shall have the respective terms assigned such terms in the Indenture.
5. GOVERNING LAW. THIS FIRST SUPPLEMENTAL INDENTURE SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT
REGARD TO THE CHOICE OF LAW PROVISIONS THEREOF THAT WOULD REQUIRE THE
APPLICATION OF ANY OTHER LAWS).
6. TRUSTEE MAKES NO REPRESENTATION. The Trustee makes no representation
as to the validity or sufficiency of this First Supplemental Indenture.
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7. COUNTERPARTS. The parties may sign any number of copies of this
First Supplemental Indenture. Each signed copy shall be an original, but all of
them together represent the same agreement.
8. EFFECT OF HEADINGS. The Section headings herein are for convenience
only and shall not effect the construction thereof.
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IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed as of the date first above written.
THE CLOROX COMPANY
By: /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
Title: Group Vice President and Chief
Financial Officer
THE BANK OF NEW YORK, as Trustee
By: /s/ Xxxxxxx Xxxxxxx
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Name: Xxxxxxx Xxxxxxx
Title: Treasurer
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