EXHIBIT 10.1
Execution Copy
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THE VALSPAR CORPORATION,
as Issuer
and
THE BANK OF NEW YORK TRUST COMPANY, N.A.,
as Trustee
5.100% Notes due 2015
______________________________
INDENTURE
Dated as of July 15, 2005
______________________________
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CROSS-REFERENCE TABLE
Certain Sections of this Indenture relating to Sections 310 through
318, inclusive, of the Trust Indenture Act of 1939:
Trust Indenture Act Indenture
Section Section
------- -------
310(a)(1) ......................................... 7.9; 7.10
(a)(2) ......................................... 7.10
(a)(3) ......................................... N.A.
(a)(4) ......................................... N.A.
(b) ......................................... 7.8; 7.10
(c) ......................................... N.A.
311(a) ......................................... 7.11
(b) ......................................... 7.11
(c) ......................................... N.A.
312(a) ......................................... 2.5
(b) ......................................... 10.3
(c) ......................................... 10.3
313(a) ......................................... 7.6
(b)(1) ......................................... N.A.
(b)(2) ......................................... 7.6
(c) ......................................... 7.6
(d) ......................................... 7.6
314(a) ......................................... 4.7
......................................... 4.4; 10.2
(b) ......................................... N.A.
(c)(1) ......................................... 10.4
(c)(2) ......................................... 10.4
(c)(3) ......................................... N.A.
(d) ......................................... N.A.
(e) ......................................... 10.5
(f) ......................................... 4.4
315(a) ......................................... 7.1
(b) ......................................... 7.5
(c) ......................................... 7.1
(d) ......................................... 7.1
(e) ......................................... 6.11
316(a)(last sentence) ......................................... 10.6
(a)(1)(A) ......................................... 6.5
(a)(1)(B) ......................................... 6.4
(a)(2) ......................................... N.A.
(b) ......................................... 6.7
317(a)(1) ......................................... 6.8
(a)(2) ......................................... 6.9
(b) ......................................... 2.4
318(a) ......................................... 10.1
N.A. means Not Applicable.
______________
Note: This Cross-Reference Table shall not, for any purpose, be deemed to be
part of this Indenture.
TABLE OF CONTENTS
PAGE
ARTICLE I Definitions and Incorporation by Reference..........................1
SECTION 1.1. Definitions...............................................1
SECTION 1.2. Other Definitions.........................................5
SECTION 1.3. Incorporation by Reference of Trust Indenture Act.........6
SECTION 1.4. Rules of Construction.....................................7
ARTICLE II The Notes..........................................................7
SECTION 2.1. Form and Dating...........................................7
SECTION 2.2. Execution and Authentication.............................12
SECTION 2.3. Registrar and Paying Agent...............................13
SECTION 2.4. Paying Agent To Hold Money in Trust......................13
SECTION 2.5. Noteholder Lists.........................................13
SECTION 2.6. Transfer and Exchange....................................14
SECTION 2.7. Form of Certificates to be Delivered in Connection
with Transfers Pursuant to Regulation S and
Rule 144A..............................................18
SECTION 2.8. Business Days............................................18
SECTION 2.9. Replacement Notes........................................18
SECTION 2.10. Outstanding Notes.......................................19
SECTION 2.11. Temporary Notes.........................................19
SECTION 2.12. Cancellation............................................19
SECTION 2.13. Defaulted Interest......................................19
SECTION 2.14. CUSIP Numbers, etc......................................20
SECTION 2.15. Issuance of Additional Notes............................20
SECTION 2.16. One Class of Notes......................................20
ARTICLE III Redemption.......................................................21
SECTION 3.1. Notices to Trustee.......................................21
SECTION 3.2. Selection of Notes to be Redeemed........................21
SECTION 3.3. Notice of Redemption.....................................21
SECTION 3.4. Effect of Notice of Redemption...........................22
SECTION 3.5. Deposit of Redemption Price..............................22
SECTION 3.6. Notes Redeemed in Part...................................23
ARTICLE IV Covenants.........................................................23
SECTION 4.1. Payment of Notes.........................................23
SECTION 4.2. Limitations on Liens.....................................23
SECTION 4.3. Limitation on Sale and Lease-Back Transactions...........25
SECTION 4.4. Compliance Certificate...................................25
SECTION 4.5. Maintenance of Office or Agency..........................25
SECTION 4.6. Existence................................................25
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PAGE
SECTION 4.7. SEC Reports..............................................25
SECTION 4.8. Rule 144A Information Requirement........................26
SECTION 4.9. Stay, Extension and Usury Laws...........................26
ARTICLE V Consolidation, Merger and Sale of Assets...........................26
SECTION 5.1. Company May Merge or Transfer Assets Only on
Certain Terms..........................................26
SECTION 5.2. Successor Corporation Substituted........................27
ARTICLE VI Defaults and Remedies.............................................27
SECTION 6.1. Events of Default........................................27
SECTION 6.2. Acceleration.............................................29
SECTION 6.3. Other Remedies...........................................29
SECTION 6.4. Waiver of Past Defaults..................................30
SECTION 6.5. Control by Majority......................................30
SECTION 6.6. Limitation on Suits......................................30
SECTION 6.7. Rights of Holders To Receive Payment.....................31
SECTION 6.8. Collection Suit by Trustee...............................31
SECTION 6.9. Trustee May File Proofs of Claim.........................31
SECTION 6.10. Priorities...............................................31
SECTION 6.11. Undertaking for Costs....................................32
ARTICLE VII Trustee..........................................................32
SECTION 7.1. Duties of Trustee........................................32
SECTION 7.2. Rights of Trustee........................................33
SECTION 7.3. Individual Rights of Trustee.............................34
SECTION 7.4. Trustee's Disclaimer.....................................34
SECTION 7.5. Notice of Defaults.......................................35
SECTION 7.6. Reports by Trustee to Holders............................35
SECTION 7.7. Compensation and Indemnity...............................35
SECTION 7.8. Replacement of Trustee...................................36
SECTION 7.9. Successor Trustee by Merger..............................37
SECTION 7.10. Eligibility; Disqualification............................37
SECTION 7.11. Preferential Collection of Claims Against the
Company................................................37
ARTICLE VIII Discharge of Indenture; Defeasance..............................38
SECTION 8.1. Discharge of Liability on Notes; Defeasance..............38
SECTION 8.2. Conditions to Defeasance.................................39
SECTION 8.3. Application of Trust Money...............................40
SECTION 8.4. Repayment to the Company.................................40
SECTION 8.5. Indemnity for Government Obligations.....................40
SECTION 8.6. Reinstatement............................................40
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PAGE
ARTICLE IX Amendments........................................................41
SECTION 9.1. Without Consent of Holders...............................41
SECTION 9.2. With Consent of Holders..................................41
SECTION 9.3. Compliance with Trust Indenture Act......................42
SECTION 9.4. Effect of Consents and Waivers...........................42
SECTION 9.5. Notation on or Exchange of Notes.........................43
SECTION 9.6. Trustee To Sign Amendments...............................43
ARTICLE X Miscellaneous......................................................43
SECTION 10.1. Trust Indenture Act Controls............................43
SECTION 10.2. Notices.................................................43
SECTION 10.3. Communication by Holders with other Holders.............44
SECTION 10.4. Certificate and Opinion as to Conditions Precedent......44
SECTION 10.5. Statements Required in Certificate or Opinion...........45
SECTION 10.6. When Notes Disregarded..................................45
SECTION 10.7. Rules by Trustee, Paying Agent and Registrar............45
SECTION 10.8. Governing Law...........................................45
SECTION 10.9. No Recourse Against Others..............................45
SECTION 10.10. Successors..............................................45
SECTION 10.11. Multiple Originals......................................46
SECTION 10.12. Appointments of Agents..................................46
SECTION 10.13. Qualification of Indenture..............................46
SECTION 10.14. Table of Contents; Headings.............................46
Exhibit A - Form of Initial Note
Exhibit B - Form of Exchange Note
Exhibit C - Form of Certificate (transfers pursuant to Regulation S)
Exhibit D - Form of Certificate (transfers pursuant to Rule 144A)
Exhibit E - Form of Incumbency Certificate
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INDENTURE, dated as of July 15, 2005, between THE VALSPAR CORPORATION,
a Delaware corporation (the "Company"), and The Bank of New York Trust Company,
N.A., a national banking association, as Trustee (the "Trustee").
Each party agrees as follows for the benefit of the other party and for
the equal and ratable benefit of Holders of the Company's 5.100% Notes due 2015
(the "Initial Notes") and, if and when issued in exchange for Initial Notes as
provided in the Registration Rights Agreement, the Company's 5.100% Notes due
2015 (the "Exchange Notes" and, together with the Initial Notes and any
Additional Notes, the "Notes"):
ARTICLE I
Definitions and Incorporation by Reference
------------------------------------------
SECTION 1.1. Definitions.
"Additional Interest" shall have the meaning assigned to such term in
the Registration Rights Agreement.
"Additional Notes" means 5.100% Notes due 2015 issued from time to time
after the Issue Date under the terms of this Indenture pursuant to Section 2.15.
"Attributable Debt" for a lease means, as of the date of determination,
the present value of net rent for the remaining term of the lease. Rent shall be
discounted to present value at a discount rate that is compounded semi-annually.
The discount rate shall be 10% per annum or, if the Company elects, the discount
rate shall be equal to the weighted average Yield to Maturity of the Notes. Such
average shall be weighted by the principal amount of the Notes then outstanding.
Rent is the lesser of (a) rent for the remaining term of the lease assuming it
is not terminated, or (b) rent from the date of determination until the first
possible termination date plus the termination payment then due, if any. The
remaining term of a lease includes any period for which the lease has been
extended. Rent does not include (1) amounts due for maintenance, repairs,
utilities, insurance, taxes, assessments and similar charges, or (2) contingent
rent, such as that based on sales. Rent may be reduced by the discounted present
value of the rent that any sublessee must pay from the date of determination for
all or part of the same property. If the net rent on a lease is not definitely
determinable, the Company may estimate it in any reasonable manner.
"Board of Directors" or "Board" means, with respect to any Person, the
Board of Directors of such Person or any committee thereof duly authorized to
act on behalf of such Board of Directors.
"Business Day" means a day which is not, in New York City or any other
place of payment, a Saturday, Sunday or other day on which banking institutions
or trust companies are authorized or required by law, resolution or executive
order to close.
2
"Capital Stock" means, with respect to any Person means any and all
shares, interests, rights to purchase, warrants, options, participations or
other equivalents of or interests in (however designated) equity of such Person,
including any preferred stock, partnership interests and limited liability
company membership interests, but excluding any debt securities convertible into
such equity.
"Code" means the U.S. Internal Revenue Code of 1986, as amended.
"Company" means the Person named as the "Company" in the preamble to
this Indenture until a successor corporation shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter, the "Company" shall
mean such successor corporation.
"Consolidated Total Assets" means the consolidated total assets of the
Company and its Subsidiaries as reflected in the Company's most recent balance
sheet prepared in accordance with GAAP preceding the date of determination
pursuant to Section 4.2.
"Corporate Trust Office" means the office of the Trustee at which, at
any particular time, its corporate trust business shall be principally
administered; which office at the date of the execution of this Indenture is
located at 0 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000,
Attention: Corporate Trust Administration or at any other time at such other
address as the Trustee may designate from time to time by notice to the Holders.
"Debt" means debt for borrowed money or any guarantee of such debt.
"Default" means any event which is, or after notice or passage of time
or both would be, an Event of Default.
"DTC" means The Depository Trust Company, its nominees and their
respective successors and assigns.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated by the SEC thereunder.
"GAAP" means generally accepted accounting principles in the United
States as in effect on the date of this Indenture.
"guarantee" means any obligation, contingent or otherwise, of any
Person directly or indirectly guaranteeing any Debt of any other Person and any
obligation, direct or indirect, contingent or otherwise, of such Person (i) to
purchase or pay (or advance or supply funds for the purchase or payment of) such
Debt of such other Person (whether arising by virtue of partnership
arrangements, by agreement to keep-well, to purchase assets, goods, securities
or services, to take-or-pay, or to maintain financial statement conditions, or
otherwise) or (ii) entered into for purposes of assuring in any other manner the
obligee of such Debt of the payment thereof or to protect such obligee against
loss in respect thereof (in whole or in part); provided that the term
"guarantee" shall not include endorsements for collection or deposit in the
ordinary course of business. The term "guarantee" used as a verb has a
correlative meaning.
3
"Holder" or "Noteholder" means the Person in whose name a Note is
registered on the Registrar's books.
"Incur" means issue, assume or guarantee.
"Indenture" means this Indenture, as amended or supplemented from time
to time.
"Initial Purchasers" means Banc of America Securities LLC and Barclays
Capital Inc., as Initial Purchasers pursuant to the Purchase Agreement.
"Issue Date" means July 15, 2005.
"Lien" means any mortgage, lien, security interest, pledge, charge or
other encumbrance to secure or assure payment of Debt.
"Long-Term Debt" means Debt that by its terms matures on a date more
than 12 months after the date it was created or Debt that the obligor may extend
or renew without the obligee's consent to a date more than 12 months after the
date the Debt was created.
"Officer" means the Chairman of the Board, the Chief Executive Officer,
the Controller, the Chief Operating Officer, any Vice President, the Treasurer,
the Assistant Treasurer, the Chief Financial Officer, the Chief Accounting
Officer, the General Counsel, the Secretary or the Assistant Secretary of the
Company, as applicable.
"Officers' Certificate" means a certificate signed by any two Officers
of the Company. One of the officers giving an Officers' Certificate pursuant to
Section 4.4 shall be the principal executive, financial or accounting officer of
the Company.
"Opinion of Counsel" means a written opinion from legal counsel to the
Company. The counsel may be an employee of the Company. Opinions of Counsel
required to be delivered under this Indenture may have qualifications customary
for opinions of the type required and counsel delivering such Opinions of
Counsel may rely on certificates of the Company or governmental or other
officials customary for opinions of the type required, including certificates
certifying as to matters of fact.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof or any other entity.
"Principal Property" means (i) any manufacturing facility, whether now
or hereafter owned by the Company or a Restricted Subsidiary and which is
located in the United States (excluding territories and possessions other than
Puerto Rico), except any such facility that in the opinion of the board of
directors of the Company or any authorized committee of such board is not of
material importance to the total business conducted by the Company and its
consolidated Subsidiaries, and (ii) any shares of stock of a Restricted
Subsidiary.
"Purchase Agreement" means the Purchase Agreement dated July 12, 2005
between the Company and the Initial Purchasers.
4
"Registered Exchange Offer" means the offer by the Company, pursuant to
the Registration Rights Agreement, to certain Holders of Initial Notes, to issue
and deliver to such Holders, in exchange for the Initial Notes, a like aggregate
principal amount of Exchange Notes registered under the Securities Act.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of July 15, 2005, between the Company and the Initial
Purchasers.
"Restricted Period" means the 40 consecutive days beginning on and
including the later of (A) the day on which the Initial Notes first are offered
to persons other than distributors (as defined in Regulation S under the
Securities Act) and (B) the Issue Date or, in the case of Additional Notes, if
any, the date on which such Additional Notes are originally issued in the form
of Initial Notes.
"Restricted Subsidiary" means a Wholly-Owned Subsidiary that has
substantially all of its assets located in the United States (excluding
territories or possessions other than Puerto Rico) and owns a Principal
Property.
"Restrictive Notes Legend" means the Restrictive Legend set forth in
clause (A) of Section 2.1(c) or the Regulation S Legend set forth in clause (B)
of Section 2.1(c), as applicable.
"Sale-Leaseback Transaction" means an arrangement pursuant to which the
Company or a Restricted Subsidiary now owns or hereafter acquires a Principal
Property, transfers it to a Person, and leases it back from the Person.
"SEC" means the U.S. Securities and Exchange Commission, or any
successor agency.
"Securities Act" means the U.S. Securities Act of 1933, as amended, and
the rules and regulations promulgated by the SEC thereunder.
"Securities Custodian" means the custodian with respect to a Global
Note (as appointed by DTC), or any successor person thereto and shall initially
be the Trustee.
"Significant Subsidiary" means any Subsidiary of the Company that, as
of the date of determination, is a "significant subsidiary" as defined in
Regulation S-X promulgated by the SEC.
"Stated Maturity" means, with respect to any security, the date
specified in such security as the fixed date on which the payment of principal
of such security is due and payable, including pursuant to any mandatory
redemption provision (but excluding any provision providing for the repurchase
of such security at the option of the holder thereof upon the happening of any
contingency beyond the control of the Company unless such contingency has
occurred).
"Subsidiary" means any corporation or other Person of which at least a
majority of all outstanding stock or equivalent interests having ordinary voting
power in the election of
5
directors or members of any equivalent management body of such corporation or
other Person is at the time, directly or indirectly, owned by the Company or by
one or more Subsidiaries of the Company or by the Company and one or more
Subsidiaries.
"Trust Indenture Act" means the U.S. Trust Indenture Act of 1939, as
amended (15 U.S.C. xx.xx. 77aaa-77bbbb) as in effect on the date of this
Indenture; provided that in the event the Trust Indenture Act of 1939 is amended
after such date, "Trust Indenture Act" means, to the extent required by any such
amendments, the U.S. Trust Indenture Act of 1939, as so amended.
"Trustee" means the party named as such in the preamble to this
Indenture until a successor replaces it in accordance with the applicable
provisions of this Indenture and, thereafter, means such successor.
"Trust Officer" means, when used with respect to the Trustee, any
officer within the Corporate Trust Department of the Trustee who has direct
responsibility for the administration of this Indenture.
"Uniform Commercial Code" means the New York Uniform Commercial Code as
in effect from time to time.
"U.S. Government Obligations" means direct obligations (or certificates
representing an ownership interest in such obligations) of the United States of
America (including any agency or instrumentality thereof) for the payment of
which the full faith and credit of the United States of America is pledged and
which are not callable or redeemable at the Company's option.
"Voting Stock" means Capital Stock of a Person of the class or classes
having general voting power under ordinary circumstances to elect at least a
majority of the board of directors, managers or trustees of such Person,
provided that, for purposes hereof, Capital Stock which carries only the right
to vote conditionally on the happening of an event shall not be considered
Voting Stock whether or not such event shall have happened.
"Wholly-Owned Subsidiary" of any specified Person means a corporation
all of whose Voting Stock is owned by the Company or a Wholly-Owned Subsidiary,
the accounts of which are consolidated with those of the Company in its
consolidated financial statements.
"Yield To Maturity" means the yield to maturity on a security at the
time of its issuance or at the most recent determination of interest on the
security.
SECTION 1.2. Other Definitions.
Defined in
Term Section
---- -------
"Affiliate"........................................ 10.6
"Agent Members".................................... 2.1(d)
"Applicable Procedures"............................ 2.6(a)
6
Defined in
Term Section
---- -------
"Authenticating Agent"............................. 2.2
"Bankruptcy Law"................................... 6.1
"Company Order".................................... 2.2
"covenant defeasance option"....................... 8.1(b)
"Custodian"........................................ 6.1
"Definitive Notes"................................. 2.1(e)
"Event of Default"................................. 6.1
"Exchange Global Note"............................. 2.1(a)
"Exchange Notes"................................... Preamble
"Global Notes"..................................... 2.1(a)
"Initial Notes".................................... Preamble
"legal defeasance option".......................... 8.1(b)
"Notes"............................................ Preamble
"Notice of Default"................................ 6.1
"Paying Agent"..................................... 2.3
"QIBs"............................................. 2.1(a)
"Registrar"........................................ 2.3
"Regulation S"..................................... 2.1(a)
"Regulation S Certificate"......................... 2.6(a)
"Regulation S Global Note"......................... 2.1(a)
"Regulation S Legend".............................. 2.1(c)
"Regulation S Note"................................ 2.1(a)
"Resale Restriction Termination Date".............. 2.1(c)
"Restrictive Legend"............................... 2.1(c)
"Rule 144A"........................................ 2.1(a)
"Rule 144A Certificate"............................ 2.6(b)
"Rule 144A Global Note"............................ 2.1(a)
"Rule 144A Note"................................... 2.1(a)
"Successor"........................................ 5.1
SECTION 1.3. Incorporation by Reference of Trust Indenture Act. This
Indenture is subject to the mandatory provisions of the Trust Indenture Act
which are incorporated by reference in and made a part of this Indenture. The
following terms in the Trust Indenture Act have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Notes.
"indenture security holder" means a Holder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
7
"obligor" on the indenture securities means the Company and any other
obligor on the indenture securities.
All other terms used in this Indenture that are defined by the Trust
Indenture Act, defined by reference to another statute or defined by SEC rule
have the meanings assigned to them by such definitions.
SECTION 1.4. Rules of Construction. For purposes of this Indenture,
except as otherwise expressly provided herein or unless the context otherwise
requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "including" means including without limitation;
(4) words in the singular include the plural and words in the
plural include the singular;
(5) all references to (a) Initial Notes shall refer also to
any Additional Notes issued in the form of Initial Notes and (b)
Exchange Notes shall refer also to any Additional Notes issued in the
form of Exchange Notes, in each case, pursuant to Section 2.15;
(6) all references to the date the Notes were originally
issued shall refer to the Issue Date or the date any Additional Notes
were originally issued, as the case may be; and
(7) all references herein to particular Sections or Articles
shall refer to this Indenture unless otherwise so indicated.
ARTICLE II
The Notes
---------
SECTION 2.1. Form and Dating. (a) The Initial Notes are being offered
and sold by the Company to the Initial Purchasers pursuant to the Purchase
Agreement. The Initial Notes shall be resold initially by the Initial Purchasers
only to (A) qualified institutional buyers (as defined in Rule 144A under the
Securities Act ("Rule 144A")) in reliance on Rule 144A ("QIBs") and (B) Persons
other than U.S. Persons (as defined in Regulation S under the Securities Act
("Regulation S")) in reliance on Regulation S. The Initial Notes may thereafter
be transferred to, among others, QIBs and purchasers in reliance on Regulation S
of the Securities Act in accordance with the procedure described herein.
Initial Notes offered and sold to qualified institutional buyers in the
United States of America in reliance on Rule 144A (each, a "Rule
8
144A Note" and collectively, the "Rule 144A Notes") shall be issued on the Issue
Date in the form of a permanent global Note, without interest coupons,
substantially in the form of Exhibit A, which is incorporated by reference and
made a part of this Indenture, including appropriate legends as set forth in
Section 2.1(c) (the "Rule 144A Global Note"), deposited with the Trustee, as
custodian for DTC, duly executed by the Company and authenticated by the Trustee
as hereinafter provided. The Rule 144A Global Note may be represented by more
than one certificate, if so required by DTC's rules regarding the maximum
principal amount to be represented by a single certificate. The aggregate
principal amount of the Rule 144A Global Note may from time to time be increased
or decreased by adjustments made on the records of the Trustee, as custodian for
DTC or its nominee, as hereinafter provided.
Initial Notes offered and sold outside the United States of America
(each, a "Regulation S Note" and collectively, the "Regulation S Notes") in
reliance on Regulation S shall be issued on the Issue Date in the form of a
permanent global Note, without interest coupons, substantially in the form set
forth in Exhibit A, which is incorporated by reference and made a part of this
Indenture, including appropriate legends as set forth in Section 2.1(c) (the
"Regulation S Global Note") deposited with the Trustee, as custodian for DTC,
duly executed by the Company and authenticated by the Trustee as hereinafter
provided. The Regulation S Global Note may be represented by more than one
certificate, if so required by DTC's rules regarding the maximum principal
amount to be represented by a single certificate. The aggregate principal amount
of the Regulation S Global Note may from time to time be increased or decreased
by adjustments made on the records of the Trustee, as custodian for DTC or its
nominee, as hereinafter provided.
Exchange Notes exchanged for interests in a Rule 144A Note and a
Regulation S Note shall be issued in the form of a permanent global Note
substantially in the form of Exhibit B hereto, which is hereby incorporated by
reference and made a part of this Indenture, deposited with the Trustee as
hereinafter provided, including the appropriate legend set forth in Section
2.1(c) (the "Exchange Global Note"). The Exchange Global Note may be represented
by more than one certificate, if so required by DTC's rules regarding the
maximum principal amount to be represented by a single certificate.
The Rule 144A Global Note, the Regulation S Global Note and the
Exchange Global Note are sometimes collectively herein referred to as the
"Global Notes." All Notes shall be dated the date of their authentication.
The principal of and interest on the Notes shall be payable at the
office or agency of the Company maintained for such purpose in The City of New
York, which initially shall be the Corporate Trust Division at 000 Xxxxxxx Xx.,
0X, Xxx Xxxx, Xxx Xxxx 00000, or at such other office or agency of the Company
as may be maintained for such purpose pursuant to Section 2.3; provided that
each installment of interest shall be paid by check mailed to addresses of the
Persons entitled thereto as such addresses shall appear on the Note Register,
except that upon request of any Holder of at least $1,000,000 principal amount
of Notes, payment shall be made by wire transfer to an account located in the
United States maintained by the payee, provided that such Holder has given
written instructions to the Trustee at least five Business Days prior to the
applicable interest payment date. Payments in respect of Notes represented by
9
a Global Note (including principal, premium and interest payments) shall be made
by wire transfer of immediately available funds to the accounts specified by
DTC.
(b) Denominations. The Notes shall be issuable only in fully registered
form, without coupons, and only in denominations of $5,000 and any integral
multiple of $1,000 in excess thereof, provided that Regulation S Notes shall
have a minimum denomination of $100,000 and any integral multiple of $1,000 in
excess thereof.
(c) Restrictive Legends. Unless and until (i) an Initial Note is sold
under an effective registration statement or (ii) an Initial Note is exchanged
for an Exchange Note in connection with an effective registration statement, in
each case pursuant to the Registration Rights Agreement or a similar agreement,
(A) the Rule 144A Global Note shall bear the following legend (the
"Restrictive Legend") on the face thereof:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY
STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED,
PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,
SUCH REGISTRATION.
THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES ON ITS
OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS
PURCHASED SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH
SECURITY, PRIOR TO THE DATE (THE "RESALE RESTRICTION TERMINATION DATE")
THAT IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND
THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS
THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY
(A) TO THE COMPANY OR ONE OF ITS SUBSIDIARIES, (B) FOR SO LONG AS THE
SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT
THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING
MADE IN RELIANCE ON RULE 144A, (C) PURSUANT TO OFFERS AND SALES TO
NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE
MEANING OF REGULATION S UNDER THE SECURITIES ACT IN A MINIMUM PRINCIPAL
AMOUNT OF $100,000, (D) PURSUANT TO RULE 144 UNDER THE SECURITIES ACT
(TO THE EXTENT AVAILABLE) OR PURSUANT TO ANOTHER AVAILABLE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR (E)
PURSUANT TO A
10
REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT, SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR
TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (D) TO REQUIRE
THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATIONS AND/OR OTHER
INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND SHALL BE REMOVED
UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION
DATE."
(B) the Regulation S Global Note shall bear the following legend (the
"Regulation S Legend") on the face thereof:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT") AND MAY NOT BE OFFERED OR SOLD
WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF U.S.
PERSONS (1) AS PART OF THEIR DISTRIBUTION AT ANY TIME OR (2) OTHERWISE
UNTIL 40 DAYS AFTER THE LATER OF THE COMMENCEMENT OF THE OFFERING OF
THE SECURITY AND THE DATE OF ORIGINAL ISSUANCE OF THE SECURITY (THE
"RESTRICTED PERIOD"), EXCEPT IN ACCORDANCE WITH REGULATION S OR RULE
144A UNDER THE SECURITIES ACT OR ANY OTHER AVAILABLE EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT."
(C) The Global Notes, whether or not an Initial Note, shall bear the
following legend on the face thereof:
"UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW
YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO.
OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR
SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL
SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE
HEREOF."
(d) Book-Entry Provisions. (i) This Section 2.1(d) shall apply only to
Global Notes deposited with the Trustee, as custodian for DTC.
11
(ii) Each Global Note initially shall (x) be registered in the name of
DTC for such Global Note or the nominee of DTC, (y) be delivered to the Trustee
as custodian for DTC and (z) bear legends as set forth in Section 2.1(c).
(iii) Members of, or participants in, DTC ("Agent Members") shall have
no rights under this Indenture with respect to any Global Note held on their
behalf by DTC or by the Trustee as the custodian of DTC or under such Global
Note, and DTC may be treated by the Company, the Trustee and any agent of the
Company or the Trustee as the absolute owner of such Global Note for all
purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent
the Company, the Trustee or any agent of the Company or the Trustee from giving
effect to any written certification, proxy or other authorization furnished by
DTC or impair, as between DTC and its Agent Members, the operation of customary
practices of DTC governing the exercise of the rights of a holder of a
beneficial interest in any Global Note.
(iv) In connection with any transfer of a portion of the beneficial
interest in a Global Note pursuant to Section 2.1(e) into Definitive Notes, the
Securities Custodian shall reflect on its books and records the date and a
decrease in the principal amount of such Global Note in an amount equal to the
principal amount of the beneficial interest in the Global Note to be
transferred, and the Company shall execute, and the Trustee shall authenticate
and deliver, one or more Definitive Notes of like tenor and amount.
(v) In connection with the transfer of an entire Global Note to
beneficial owners pursuant to subsection (e) of this Section 2.1, such Global
Note shall be deemed to be surrendered to the Trustee for cancellation, and the
Company shall execute, and the Trustee shall authenticate and deliver, to each
beneficial owner identified by DTC in exchange for its beneficial interest in
such Global Note, an equal aggregate principal amount of Definitive Notes of
authorized denominations.
(vi) The registered holder of a Global Note may grant proxies and
otherwise authorize any person, including Agent Members and persons that may
hold interests through Agent Members, to take any action which a Holder is
entitled to take under this Indenture or the Notes.
(e) Definitive Notes. (i) Owners of beneficial interests in Global
Notes shall not be entitled to receive certificated Notes ("Definitive Notes"),
unless (a) DTC notifies the Company that it is unwilling or unable to continue
as depositary for such Global Note or DTC ceases to be a clearing agency
registered under the Exchange Act, at a time when DTC is required to be so
registered in order to act as depositary, and in each case a successor
depositary is not appointed by the Company within 90 days of such notice or, (b)
the Company executes and delivers to the Trustee and Registrar an Officers'
Certificate stating that such Global Note shall be so exchangeable or (c) an
Event of Default has occurred and is continuing and the Registrar has received a
request from DTC.
(ii) Any Definitive Note delivered in exchange for an interest in a
Global Note pursuant to Section 2.1(d)(iv) or 2.1(d)(v) shall, except as
otherwise provided by Section 2.6(g), bear the applicable legend regarding
transfer restrictions applicable to the Definitive Note set forth in Section
2.1(c).
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SECTION 2.2. Execution and Authentication. An Officer of the Company
shall sign the Notes for the Company by manual or facsimile signature and may be
imprinted or otherwise reproduced.
If an Officer whose signature is on a Note no longer holds that office
at the time the Trustee authenticates the Note, the Note shall be valid
nevertheless.
A Note shall not be valid until an authorized signatory of the Trustee
manually authenticates the Note. The signature of the Trustee on a Note shall be
conclusive evidence that such Note has been duly and validly authenticated and
issued under this Indenture.
At any time and from time to time after the execution and delivery of
this Indenture, the Trustee shall authenticate and make available for delivery:
(1) Initial Notes for original issue on the Issue Date in an aggregate principal
amount of $150 million, (2) any Additional Notes for original issue from time to
time after the Issue Date in such principal amounts as set forth in Section 2.15
and (3) any Exchange Notes for issue only in exchange for a like principal
amount of Initial Notes, in each case upon a written order of the Company signed
by two Officers of the Company (a "Company Order"). Such Company Order shall
specify the amount of the Notes to be authenticated and the date on which the
original issue of Notes is to be authenticated and whether the Notes are to be
Initial Notes or Exchange Notes. The aggregate principal amount of Initial Notes
which may be authenticated and delivered under this Indenture shall initially be
limited to $150,000,000. Additionally, the Company may from time to time,
without notice to or consent of the Holders, issue such additional principal
amounts of Additional Notes as may be issued and authenticated pursuant to
clause (2) of this paragraph, and Notes authenticated and delivered upon
registration or transfer of, or in exchange for, or in lieu of, other Notes of
the same class pursuant to Section 2.6, Section 2.9, Section 2.10, Section 3.6,
Section 9.5.
The Trustee may appoint an agent (the "Authenticating Agent")
reasonably acceptable to the Company to authenticate the Notes. Unless limited
by the terms of such appointment, any such Authenticating Agent may authenticate
Notes whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent.
In case the Company, pursuant to Article V, shall be consolidated or
merged with or into any other Person or shall convey, transfer, lease or
otherwise dispose of its properties and assets substantially as an entirety to
any Person, and the successor Person resulting from such consolidation, or
surviving such merger, or into which the Company shall have been merged, or the
Person which shall have received a conveyance, transfer, lease or other
disposition as aforesaid, shall have executed an indenture supplemental hereto
(if not otherwise a party to the Indenture) with the Trustee pursuant to Article
V, any of the Notes authenticated or delivered prior to such consolidation,
merger, conveyance, transfer, lease or other disposition may, from time to time,
at the request of the successor Person, be exchanged for other Notes executed in
the name of the successor Person with such changes in phraseology and form as
may be appropriate, but otherwise in substance of like tenor as the Notes
surrendered for such exchange and of like principal amount; and the Trustee,
upon Company Order of the successor Person, shall authenticate and deliver Notes
as specified in such order for the purpose of such exchange. If
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Notes shall at any time be authenticated and delivered in any new name of a
successor Person (if other than the Company) pursuant to this Section 2.2 in
exchange or substitution for or upon registration of transfer of any Notes, such
successor Person (if other than the Company), at the option of the Holders but
without expense to them, shall provide for the exchange of all Notes at the time
outstanding for Notes authenticated and delivered in such new name.
SECTION 2.3. Registrar and Paying Agent. The Company shall maintain an
office or agency where Notes may be presented for registration of transfer or
for exchange (the "Registrar") and an office or agency where Notes may be
presented for payment (the "Paying Agent"). The Registrar shall keep a register
of the Notes and of their transfer and exchange. The Company may have one or
more additional paying agents. The term "Paying Agent" includes any such
additional paying agent. The Company may change the Registrar or appoint one or
more co-Registrars without notice.
In the event the Company shall retain any Person not a party to this
Indenture as an agent hereunder, the Company shall enter into an appropriate
agency agreement with any Registrar or Paying Agent not a party to this
Indenture, which shall incorporate the terms of the Trust Indenture Act. The
agreement shall implement the provisions of this Indenture that relate to such
agent. The Company shall notify the Trustee of the name and address of each such
agent. If the Company fails to maintain a Registrar or Paying Agent, the Trustee
shall act as such and shall be entitled to appropriate compensation therefor
pursuant to Section 7.7. The Company shall be responsible for the fees and
compensations of all agents appointed or approved by it. Either the Company or
any of its domestically incorporated Wholly-Owned Subsidiaries may act as Paying
Agent.
The Company initially appoints the Trustee as Registrar and Paying
Agent for the Notes.
SECTION 2.4. Paying Agent To Hold Money in Trust. By no later than
10:00 a.m. (New York City time) on the date on which any principal or interest
(including any Additional Interest) on any Note is due and payable, the Company
shall deposit with the Paying Agent a sum sufficient to pay such principal or
interest (including any Additional Interest) when due. The Company shall require
each Paying Agent (other than the Trustee) to agree in writing that such Paying
Agent shall hold in trust for the benefit of Noteholders or the Trustee all
money held by such Paying Agent for the payment of principal of or interest
(including any Additional Interest) on the Notes and shall notify the Trustee in
writing of any default by the Company in making any such payment. If either of
the Company or any of its Subsidiaries acts as Paying Agent, it shall segregate
the money held by it as Paying Agent and hold it as a separate trust fund. The
Company at any time may require a Paying Agent (other than the Trustee) to pay
all money held by it to the Trustee and to account for any funds disbursed by
such Paying Agent. Upon complying with this Section 2.4, the Paying Agent (if
other than the Company or a Subsidiary) shall have no further liability for the
money delivered to the Trustee. Upon any bankruptcy, reorganization or similar
proceeding with respect to the Company, the Trustee shall serve as Paying Agent
for the Notes.
SECTION 2.5. Noteholder Lists. The Trustee shall preserve in as current
a form as is reasonably practicable the most recent list available to it of the
names and addresses of
14
Noteholders. If the Trustee is not the Registrar, the Company shall cause the
Registrar to furnish to the Trustee, in writing at least five Business Days
before each interest payment date and at such other times as the Trustee may
request in writing, a list in such form and as of such date as the Trustee may
reasonably require of the names and addresses of Noteholders.
SECTION 2.6. Transfer and Exchange.
Notwithstanding any other provision of this Indenture or the Notes
(other than Section 2.1(e) hereof), transfers and exchanges of Notes and
beneficial interests in a Global Note of the kinds specified in this Section 2.6
shall be made only in accordance with this Section 2.6.
(a) Rule 144A Global Note to Regulation S Global Note. If the owner of
a beneficial interest in the Rule 144A Global Note wishes at any time to
transfer such interest to a person who wishes to take delivery thereof in the
form of a beneficial interest in the Regulation S Global Note, such transfer may
be effected only in accordance with the provisions of this Section 2.6(a), and
subject to the Applicable Procedures (as defined below). Upon receipt by the
Trustee, as Registrar, of (A) an order given by DTC or its authorized
representative directing that a beneficial interest in the Regulation S Global
Note in a specified principal amount be credited to a specified Agent Member's
account and that a beneficial interest in the Rule 144A Global Note in an equal
principal amount be debited from another specified Agent Member's account and
(B) a Regulation S Certificate (a "Regulation S Certificate"), the form of which
is set forth in Exhibit C hereto, satisfactory to the Trustee and duly executed
by the owner of such beneficial interest in the Rule 144A Global Note and
increase the principal amount of the Regulation S Global Note by such specified
principal amount as provided in this Section 2.6. "Applicable Procedures" means,
with respect to any transfer or transaction involving a Global Note or
beneficial interest therein, the rules and procedures of DTC, Euroclear System
and Clearstream Banking, Societe Anonyme or their successors or assigns, in each
case, to the extent applicable to such transaction and as in effect from time to
time.
(b) Regulation S Global Note to Rule 144A Global Note. If the owner of
a beneficial interest in the Regulation S Global Note wishes at any time to
transfer such interest to a person who wishes to take delivery thereof in the
form of a beneficial interest in the Rule 144A Global Note, such transfer may be
effected only in accordance with this Section 2.6(b) and subject to the
Applicable Procedures. Upon receipt by the Trustee, as Registrar, of (A) an
order given by DTC or its authorized representative directing that a beneficial
interest in the Rule 144A Global Note in a specified principal amount be
credited to a specified Agent Member's account and that a beneficial interest in
the Regulation S Global Note in an equal principal amount be debited from
another specified Agent Member's account and (B) if such transfer is to occur
during (but only during) the Restricted Period, a Rule 144A Certificate (a "Rule
144A Certificate"), the form of which is set forth in Exhibit D hereto,
satisfactory to the Trustee and duly executed by the owner of such beneficial
interest in the Regulation S Global Note or his attorney duly authorized in
writing, then the Trustee, as Registrar, shall reduce the principal amount of
the Regulation S Global Note and increase the principal amount of the Rule 144A
Global Note by such specified principal amount as provided in this Section 2.6.
(c) Rule 144A Non-Global Note to Rule 144A Global Note or Regulation S
Global Note. If the holder of a Rule 144A Note (other than a Global Note) wishes
at any time to
15
transfer all or any portion of such Note to a person who wishes to take delivery
thereof in the form of a beneficial interest in the Rule 144A Global Note or the
Regulation S Global Note, such transfer may be effected only in accordance with
the provisions of this Section 2.6(c) and subject to the Applicable Procedures.
Upon receipt by the Trustee, as Registrar, of (A) such Note as provided in
Section 2.3 and instructions satisfactory to the Trustee directing that a
beneficial interest in the Rule 144A Global Note or Regulation S Global Note in
a specified principal amount not greater than the principal amount of such Note
be credited to a specified Agent Member's account and (B) a Rule 144A
Certificate, if the specified account is to be credited with a beneficial
interest in the Rule 144A Global Note, or a Regulation S Certificate, if the
specified account is to be credited with a beneficial interest in the Regulation
S Global Note, in either case, satisfactory to the Trustee and duly executed by
such holder or his attorney duly authorized in writing, then the Trustee, as
Registrar, shall cancel such Note (and issue a new Note in respect of any
untransferred portion thereof) as provided in Section 2.3 and increase the
principal amount of the Rule 144A Global Note or the Regulation S Global Note,
as the case may be, by the specified principal amount as provided in this
Section 2.6.
(d) Regulation S Non-Global Note to Rule 144A Global Note or Regulation
S Global Note. If the holder of a Regulation S Note (other than a Global Note)
wishes at any time to transfer all or any portion of such Note to a person who
wishes to take delivery thereof in the form of a beneficial interest in the Rule
144A Global Note or the Regulation S Global Note, such transfer may be effected
only in accordance with this Section 2.6(d) and subject to the Applicable
Procedures. Upon receipt by the Trustee, as Registrar, of (A) such Note as
provided in Section 2.3 and instructions satisfactory to the Trustee directing
that a beneficial interest in the Rule 144A Global Note or Regulation S Global
Note in a specified principal amount not greater than the principal amount of
such Note be credited to a specified Agent Member's account and (B) if the
transfer is to occur during (but only during) the Restricted Period and the
specified account is to be credited with a beneficial interest in the Rule 144A
Global Note, a Rule 144A Certificate satisfactory to the Trustee and duly
executed by such holder or his attorney duly authorized in writing, then the
Trustee, as Registrar, shall cancel such Note (and issue a new Note in respect
of any untransferred portion thereof) as provided in Section 2.3 and increase
the principal amount of the Rule 144A Global Note or the Regulation S Global
Note, as the case may be, by the specified principal amount as provided in this
Section 2.6.
(e) Non-Global Note to Non-Global Note. A Note that is not a Global
Note may be transferred, in whole or in part, to a person who takes delivery in
the form of another Note that is not a Global Note in accordance with Section
2.3; provided that if the Note to be transferred in whole or in part is (I) a
Rule 144A Note or (II) a Regulation S Note and the transfer is to occur during
(but only during) the Restricted Period, then, in each case, the Trustee, as
Registrar, shall have received (A) a Rule 144A Certificate, satisfactory to the
Trustee and duly executed by the transferor holder or his attorney duly
authorized in writing, in which case the transferee holder shall take delivery
in the form of a Rule 144A Note, or (B) a Regulation S Certificate, satisfactory
to the Trustee and duly executed by the transferor holder or his attorney duly
authorized in writing, in which case the transferee holder shall take delivery
in the form of a Regulation S Note (subject in each case to Section 2.6(g)).
(f) Exchange between Global Note and Non-Global Note. A beneficial
interest in a Global Note may be exchanged for a Note that is not a Global Note
as provided in Section
16
2.1(e); provided that if such interest is a beneficial interest in (I) the Rule
144A Global Note or (II) the Regulation S Global Note and such exchange is to
occur during the Restricted Period, then, in each case, such interest shall be
exchanged for a Rule 144A Note (subject in each case to Section 2.6(g)). A Note
that is not a Global Note may be exchanged for a beneficial interest in a Global
Note only if (A) such exchange occurs in connection with a transfer effected in
accordance with Section 2.6(c) or 2.6(d) herein or (B) such Note is a Regulation
S Note and such exchange occurs after the Restricted Period.
(g) Restrictive Notes Legend. Upon the registration of transfer,
exchange or replacement of Notes not bearing a Restrictive Notes Legend, the
Registrar shall deliver Notes that do not bear a Restrictive Notes Legend. Upon
the registration of transfer, exchange or replacement of Notes bearing a
Restrictive Notes Legend, the Registrar shall deliver only Notes that bear a
Restrictive Notes Legend unless there is delivered to the Registrar an Opinion
of Counsel to the effect that neither such legend nor the related restrictions
on transfer are required in order to maintain compliance with the provisions of
the Securities Act.
(h) The Company shall deliver to the Trustee an Officers' Certificate
setting forth the Resale Restriction Termination Date and the Restricted Period.
The Registrar shall retain copies of all letters, notices and other
written communications received pursuant to Section 2.1 or this Section 2.6. The
Company shall have the right to inspect and make copies of all such letters,
notices or other written communications at any reasonable time upon the giving
of reasonable written notice to the Registrar.
(i) Obligations with Respect to Transfers and Exchanges of Notes.
(i) To permit registrations of transfers and exchanges, the
Company shall, subject to the other terms and conditions of this
Article II, execute and the Trustee shall authenticate Definitive Notes
and Global Notes at the Registrar's or co-registrar's request.
(ii) No service charge shall be made to a Holder for any
registration of transfer or exchange, but the Company or the Trustee
may require payment of a sum sufficient to cover any transfer tax,
assessments, or similar governmental charge payable in connection
therewith (other than any such transfer taxes, assessments or similar
governmental charges payable upon exchange or transfer pursuant to
Sections 3.6 or 9.5).
(iii) The Registrar or co-registrar shall not be required to
register the transfer of or exchange of any Note for a period beginning
(1) 15 days before the mailing of a notice of an offer to repurchase or
redeem Notes and ending at the close of business on the day of such
mailing or (2) 15 days before an interest payment date and ending on
such interest payment date.
(iv) Prior to the due presentation for registration of
transfer of any Note, the Company, the Trustee, the Paying Agent, the
Registrar or any co-registrar may deem and treat the person in whose
name a Note is registered as the absolute owner of such Note for the
purpose of receiving payment of principal of and interest on such Note
and for all other purposes whatsoever, whether or not such Note is
overdue, and none of the
17
Company, the Trustee, the Paying Agent, the Registrar or any
co-registrar shall be affected by notice to the contrary.
(v) Any Definitive Note delivered in exchange for an interest
in a Global Note pursuant to Section 2.1(d) shall, except as otherwise
provided by Section 2.6(g), bear the applicable legend regarding
transfer restrictions applicable to the Definitive Note set forth in
Section 2.1(c).
(vi) All Notes issued upon any transfer or exchange pursuant
to the terms of this Indenture shall be the valid and legally binding
obligation of the Company, shall evidence the same debt and shall be
entitled to the same benefits under this Indenture as the Notes
surrendered upon such transfer or exchange.
(vii) All certificates, certifications and opinions of counsel
required to be submitted to the Registrar or any co-registrar pursuant
to this Section 2.6 to effect any transfer or exchange may be submitted
by facsimile transmission, with the original to follow by first class
mail or hand delivery.
(j) No Obligation of the Trustee. (i) The Trustee shall have no
responsibility or obligation to any beneficial owner of a Global Note, a member
of, or a participant in, DTC or other Person in respect of any aspect of the
records, or for maintaining, supervising or reviewing any records, relating to
beneficial ownership interests of a Global Note, with respect to the accuracy of
the records of DTC or its nominee or of any participant or member thereof, with
respect to any ownership interest in the Notes or with respect to the delivery
to any participant, member, beneficial owner or other Person (other than DTC) of
any notice (including any notice of redemption) or the payment of any amount or
delivery of any Notes (or other security or property) under or with respect to
such Notes. All notices and communications to be given to the Holders and all
payments to be made to Holders in respect of the Notes shall be given or made
only to or upon the order of the registered Holders (which shall be DTC or its
nominee in the case of a Global Note). The rights of beneficial owners in any
Global Note shall be exercised only through DTC subject to the applicable rules
and procedures of DTC. The Trustee and the Company may conclusively rely and
shall be fully protected in relying upon information furnished by DTC with
respect to its members, participants and any beneficial owners.
(ii) The Trustee shall have no obligation or duty to monitor, determine
or inquire as to compliance with any restrictions on transfer imposed under this
Indenture or under applicable law with respect to any transfer of any interest
in any Note (including any transfers between or among Agent Members or
beneficial owners of interests in any Global Note) other than to require
delivery of such certificates and other documentation or evidence as are
expressly required by, and to do so if and when expressly required by, the terms
of this Indenture, and to examine the same to determine substantial compliance
as to form with the express requirements hereof.
(k) Transfer and Exchange of Global Notes. A Global Note may not be
transferred as a whole except by DTC to a nominee of DTC, by a nominee of DTC to
DTC or to another nominee of DTC, or by DTC or any such nominee to a successor
depositary or to a nominee of such successor depositary.
18
Neither the Trustee nor any agent thereof shall have any responsibility
for any actions taken or not taken by DTC or any successor depositary.
(l) Accrual of Interest on the Exchange Note; Exchange of Exchange
Notes.
(i) Interest on any Exchange Note shall accrue from the dates
provided in Exhibit B.
(ii) Subject to Section 2.1(e), upon the occurrence of the
Registered Exchange Offer in accordance with the Registration Rights
Agreement, the Company shall issue and, upon receipt of an
authentication order in accordance with Section 2.2, the Trustee shall
authenticate one or more Exchange Global Notes in an aggregate
principal amount equal to the principal amount of the beneficial
interests in the Initial Notes or Additional Notes tendered for
acceptance by Persons that certify in the applicable letters of
transmittal, to the extent set forth therein, that (w) any Exchange
Note received by them are acquired in the ordinary course of their
businesses, (x) they will deliver a prospectus in connection with any
resale of the Exchange Notes if they are broker-dealers, (y) they are
not participating in a distribution of the Exchange Notes and (z) they
are not affiliates (as defined in Rule 144 under the Securities Act) of
the Company, and accepted for exchange in the exchange offer.
Concurrently with the issuance of such Notes, the Trustee shall cause
the aggregate principal amount of the applicable Initial Notes in the
form of Global Notes and/or Additional Notes in the form of Global
Notes to be reduced accordingly.
SECTION 2.7. Form of Certificates to be Delivered in Connection with
Transfers Pursuant to Regulation S and Rule 144A. Attached hereto as Exhibit C
and Exhibit D are forms of certificates to be delivered in connection with
transfers pursuant to Regulation S and Rule 144A, respectively.
SECTION 2.8. Business Days. If a payment date is on a date that is not
a Business Day, payment shall be made on the next succeeding day that is a
Business Day, and no interest shall accrue on such payment for the intervening
period. If a regular record date is on a day that is not a Business Day, the
record date shall not be affected.
SECTION 2.9. Replacement Notes. If a mutilated Note is surrendered to
the Registrar or if the Holder of a Note shall provide the Company and the
Trustee with evidence to their satisfaction that the Note has been lost,
destroyed or wrongfully taken, the Company shall issue and the Trustee shall
authenticate a replacement Note if the requirements of Section 8-405 of the
Uniform Commercial Code are met and the Holder satisfies any other reasonable
requirements of the Trustee. In addition, such Holder shall furnish an indemnity
or surety bond sufficient in the judgment of the Company and the Trustee to
protect the Company, the Trustee, the Paying Agent and the Registrar from any
loss that any of them may suffer if a Note is replaced. The Company and the
Trustee may charge the Holder for their expenses in replacing a Note, including
reasonable fees and expenses of counsel. Every replacement Note is an additional
obligation of the Company.
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SECTION 2.10. Outstanding Notes. Notes outstanding at any time are all
Notes authenticated by the Trustee except for those canceled, those delivered
for cancellation and those described in this Section 2.10 as not outstanding.
Subject to Section 10.6, a Note does not cease to be outstanding because the
Company or an Affiliate of the Company holds the Note.
If a Note is replaced pursuant to Section 2.9, it ceases to be
outstanding unless the Trustee and the Company receive proof satisfactory to
them that the replaced Note is held by a protected purchaser.
If the Paying Agent segregates and holds in trust, in accordance with
this Indenture, on a redemption date or maturity date money sufficient to pay
all principal and interest payable on that date with respect to the Notes (or
portions thereof) to be redeemed or maturing, as the case may be, then on and
after that date such Notes (or portions thereof) cease to be outstanding and
interest on them ceases to accrue.
SECTION 2.11. Temporary Notes. Until Definitive Notes are ready for
delivery, the Company may prepare and the Trustee shall authenticate and deliver
temporary Notes. Temporary Notes shall be substantially in the form of
Definitive Notes but may have variations that the Company considers appropriate
for temporary Notes. Without unreasonable delay, the Company shall prepare and
the Trustee shall authenticate and deliver Definitive Notes. After the
preparation of Definitive Notes, the temporary Notes shall be exchangeable for
Definitive Notes upon surrender of the temporary Notes at any office or agency
maintained by the Company for that purpose and such exchange shall be without
charge to the Holder. Upon surrender for cancellation of any one or more
temporary Notes, the Company shall execute, and the Trustee shall authenticate
and deliver in exchange therefor, one or more Definitive Notes representing an
equal principal amount of Notes. Until so exchanged, the Holder of temporary
Notes shall in all respects be entitled to the same benefits under this
Indenture as a Holder of Definitive Notes.
SECTION 2.12. Cancellation. The Company at any time may deliver Notes
to the Trustee for cancellation. The Registrar and the Paying Agent shall
forward to the Trustee for cancellation any Notes surrendered to them for
registration of transfer or exchange or payment. The Trustee and no one else
shall cancel (subject to the record retention requirements of the Exchange Act)
all Notes surrendered for registration of transfer or exchange, payment or
cancellation and, upon the request of the Company, deliver a certificate of such
cancellation to the Company. The Company may not issue new Notes to replace
Notes it has redeemed, paid or delivered to the Trustee for cancellation, which
shall not prohibit the Company from issuing any Additional Notes, or any
Exchange Notes in exchange for Initial Notes. All cancelled Notes held by the
Trustee may be disposed of by the Trustee in accordance with its then customary
practices and procedures, unless the Company directs otherwise in writing. The
Trustee shall provide to the Company a list of all Notes that have been
cancelled from time to time as requested in writing by the Company.
SECTION 2.13. Defaulted Interest. If the Company defaults in a payment
of interest on the Notes, the Company shall pay defaulted interest plus interest
on such defaulted interest to the extent lawful at the rate specified therefor
in the Notes in any lawful manner. The Company may pay the defaulted interest to
the Persons who are Noteholders on a subsequent
20
special record date. The Company shall fix or cause to be fixed any such special
record date and payment date to the reasonable satisfaction of the Trustee which
specified record date shall not be less than 10 days prior to the payment date
for such defaulted interest and shall promptly mail or cause to be mailed to
each Noteholder a notice that states the special record date, the payment date
and the amount of defaulted interest to be paid. The Company shall notify the
Trustee in writing of the amount of defaulted interest proposed to be paid on
each Note and the date of the proposed payment, and at the same time the Company
shall deposit with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such defaulted interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date of
the proposed payment, such money when so deposited to be held in trust for the
benefit of the Person entitled to such defaulted interest as provided in this
Section 2.13.
SECTION 2.14. CUSIP Numbers, etc. The Company in issuing the Notes may
use "CUSIP" or "ISIN" numbers and/or other similar numbers (if then generally in
use), and, if so, the Trustee shall use "CUSIP" and/or "ISIN" numbers in notices
of redemption or exchange as a convenience to Holders; provided that any such
notice may state that no representation is made as to the correctness of such
numbers either as printed on the Notes or as contained in any notice of a
redemption or exchange and that reliance may be placed only on the other
identification numbers printed on the Notes, and any such redemption or exchange
shall not be affected by any defect in or omission of such numbers. The Company
shall promptly notify the Trustee in writing of any change in the CUSIP numbers
and/or other similar numbers.
SECTION 2.15. Issuance of Additional Notes. The Company shall be
entitled to issue, from time to time, Additional Notes under this Indenture
which shall have identical terms as the Initial Notes issued on the Issue Date
or the Exchange Notes exchanged therefor (in each case, other than with respect
to the date of issuance, issue price and amount of interest payable on the first
payment date applicable thereto), as the case may be.
With respect to any Additional Notes, the Company shall set forth in a
resolution of the Board of Directors and an Officers' Certificate, a copy of
each shall be delivered to the Trustee, the following information:
(i) the aggregate principal amount of such Additional Notes to be
authenticated and delivered pursuant to this Indenture;
(ii) the issue price, the issue date and the "CUSIP" and "ISIN" number
of any such Additional Notes and the amount of interest payable on the first
payment date applicable thereto;
(iii) whether such Additional Notes shall be transfer restricted
securities and issued in the form of Initial Notes as set forth in Exhibit A to
this Indenture or shall be issued in the form of Exchange Notes as set forth in
Exhibit B to this Indenture; and
(iv) if applicable, the Resale Restriction Termination Date and the
Restricted Period for such Additional Notes.
SECTION 2.16. One Class of Notes. The Initial Notes, any Additional
Notes and the Exchange Notes shall vote and consent together on all matters as
one class; and none of
21
the Initial Notes, any Additional Notes and the Exchange Notes shall have the
right to vote or consent as a separate class on any matter. The Initial Notes,
any Additional Notes and the Exchange Notes shall together be deemed to
constitute a single class or series for all purposes under this Indenture.
ARTICLE III
Redemption
----------
SECTION 3.1. Notices to Trustee. If the Company elects to redeem Notes
pursuant to Section 5 of the Notes, it shall notify the Trustee in writing of
the redemption date and the principal amount of Notes to be redeemed.
The Company shall give each notice to the Trustee provided for in this
Section 3.1 at least 60 days (45 days in the case of redemption of all the
Notes) before the redemption date unless the Trustee consents to a shorter
period. Such notice shall be accompanied by an Officers' Certificate from the
Company to the effect that such redemption shall comply with the conditions
herein. The record date relating to such redemption shall be selected by the
Company and set forth in the related notice given to the Trustee, which record
date shall be not less than 15 days prior to the date selected for redemption by
the Company.
SECTION 3.2. Selection of Notes to be Redeemed. If fewer than all the
Notes then outstanding are to be redeemed, the Trustee shall select the Notes to
be redeemed by a method that complies with applicable legal and securities
exchange requirements, if any, and that the Trustee considers, in its
discretion, to be fair and appropriate in accordance with methods generally used
at the time of selection by fiduciaries in similar circumstances. The Trustee
shall make the selection from outstanding Notes not previously called for
redemption. The Trustee may select for redemption portions of the principal of
Notes that have denominations larger than $5,000. Notes and portions thereof
that the Trustee selects shall be in amounts of $5,000 or integral multiples of
$1,000 in excess thereof. Provisions of this Indenture that apply to Notes
called for redemption also apply to portions of Notes called for redemption. The
Trustee shall promptly notify the Company of the Notes or portions of Notes to
be redeemed.
SECTION 3.3. Notice of Redemption. At least 30 days but not more than
60 days before a date for redemption of Notes, notice of redemption shall be
mailed by first-class mail to each Holder of Notes to be redeemed at its
registered address.
The notice shall identify the Notes to be redeemed and shall state:
(1) the redemption date;
(2) the redemption price (or the method of calculating such
price) as set forth in Section 5 of the Form of Note in Exhibit A or B,
as the case may be, and the amount of accrued interest to be paid, if
any;
(3) the name and address of the Paying Agent;
22
(4) that Notes called for redemption must be surrendered to
the Paying Agent to collect the redemption price plus accrued and
unpaid interest, if any;
(5) if fewer than all the outstanding Notes are to be
redeemed, the Bond No. (if certificated) and principal amounts of the
particular Notes to be redeemed;
(6) that, unless the Company defaults in making such
redemption payment, interest on Notes (or portion thereof) called for
redemption ceases to accrue on and after the redemption date;
(7) the CUSIP number, or any similar number, if any, printed
on the Notes being redeemed; and
(8) that no representation is made as to the correctness or
accuracy of the CUSIP number, or any similar number, if any, listed in
such notice or printed on the Notes.
At the Company's written request (which may be rescinded or revoked at
any time prior to the time at which the Trustee shall have given such notice to
the Holders), the Trustee shall give the notice of redemption in the name of the
Company and at the Company's expense. In such event, the Company shall provide
the Trustee with the information required by this Section 3.3. The notice, if
mailed in the manner herein provided, shall be conclusively presumed to have
been given, whether or not the Holder receives such notice. In any case, failure
to give such notice by mail or any defect in the notice to the Holder of any
Note designated for redemption as a whole or in part shall not affect the
validity of the proceedings for the redemption of any other Notes.
SECTION 3.4. Effect of Notice of Redemption. Once notice of redemption
is mailed in accordance with Section 3.3, Notes called for redemption shall
become due and payable on the redemption date and at the redemption price as
stated in the notice. Upon surrender to the Paying Agent on or after the
redemption date, such Notes shall be paid at the redemption price stated in the
notice, plus accrued and unpaid interest to the redemption date; provided that
the Company shall have deposited the redemption price with the Paying Agent or
the Trustee on or before 10:00 a.m. (New York City time) on the date of
redemption; provided further that if the redemption date is after a regular
record date and on or prior to the interest payment date, the accrued and unpaid
interest shall instead be payable to the Noteholder of the redeemed Notes
registered on the relevant record date. Failure to give notice or any defect in
the notice to any Holder shall not affect the validity of the notice to any
other Holder.
SECTION 3.5. Deposit of Redemption Price. By no later than 10:00 a.m.
(New York City time) on the date of redemption, the Company shall deposit with
the Paying Agent (or, if the Company or any of its Subsidiaries is the Paying
Agent, shall segregate and hold in trust) an amount of money sufficient to pay
the redemption price of and accrued and unpaid interest on all Notes to be
redeemed on that date other than Notes or portions of Notes called for
redemption which are owned by the Company or a Subsidiary and have been
delivered by the Company or such Subsidiary to the Trustee for cancellation. All
money, if any, earned on funds held by the Paying Agent shall be remitted to the
Company. In addition, the Paying Agent shall promptly
23
return to the Company any money deposited with the Paying Agent by the Company
in excess of the amounts necessary to pay the redemption price of, and accrued
interest, if any, on, all Notes to be redeemed.
Unless the Company defaults in the payment of such redemption price,
interest on the Notes or portions of Notes to be redeemed shall cease to accrue
on and after the applicable redemption date, whether or not such Notes are
presented for payment.
SECTION 3.6. Notes Redeemed in Part. Upon surrender of a Note that is
redeemed in part, the Company shall execute and the Trustee shall authenticate
for the Holder thereof (at the Company's expense) a new Note, equal in a
principal amount to the unredeemed portion of the Note surrendered; provided
that each new Note shall be in a principal amount of $5,000 or an integral
multiple of $1,000 in excess thereof.
ARTICLE IV
Covenants
---------
SECTION 4.1. Payment of Notes. The Company covenants and agrees that it
shall promptly pay the principal of and interest (including Additional Interest)
on the Notes on the dates and in the manner provided in the Notes and in this
Indenture. Principal and interest (including Additional Interest) shall be
considered paid on the date due if, on or before 11:00 a.m. (New York City time)
on such date, the Trustee or the Paying Agent (or, if the Company or any of its
Subsidiaries is the Paying Agent, the segregated account or separate trust fund
maintained by the Company or such Subsidiary pursuant to Section 2.4) holds in
accordance with this Indenture money sufficient to pay all principal and
interest (including Additional Interest) then due. If any Additional Interest is
due, the Company shall deliver an Officers' Certificate to the Trustee setting
forth the Additional Interest per $1,000 aggregate principal amount of Notes.
The Company shall pay interest on overdue principal at the rate of
interest specified in the Notes, and it shall pay interest on overdue
installments of interest at the same rate to the extent lawful as provided in
Section 2.13.
Notwithstanding anything to the contrary contained in this Indenture,
the Company or the Paying Agent may, to the extent it is required to do so by
law, deduct or withhold income or other similar taxes imposed by the United
States of America or other domestic or foreign taxing authorities from principal
or interest payments hereunder.
SECTION 4.2. Limitations on Liens. The Company shall not, and shall not
permit any Restricted Subsidiary to, create, incur, assume or otherwise cause or
suffer to exist or become effective any Lien of any kind on a Principal Property
securing Debt unless one or more of the following exceptions apply:
24
(a) the Lien equally and ratably secures the Notes and the Debt; the
Lien may also equally and ratably secure the Notes and any other obligation of
the Company or a Subsidiary; provided that any obligation secured by a Lien is
not subordinated to the Notes;
(b) the Lien secures Debt incurred to finance all or part of the
purchase price or the cost of construction or improvement of property of the
Company or a Restricted Subsidiary; provided that (i) such Lien shall not extend
to any other Principal Property owned by the Company or a Restricted Subsidiary
at the time the Lien is incurred, except for unimproved real property used for
such construction or improvement, and (ii) such Debt shall not be incurred more
than 18 months after the later of the (I) acquisition, (II) completion of
construction or improvement, or (III) commencement of full operation, of the
property subject to the Lien;
(c) the Lien is on property of an entity at the time the entity merges
into or consolidates with the Company or a Restricted Subsidiary;
(d) the Lien is on property at the time such property is acquired by
the Company or a Restricted Subsidiary;
(e) the Lien is on property of a corporation at the time such
corporation becomes a Restricted Subsidiary;
(f) the Lien secures Debt of a Restricted Subsidiary owing to the
Company or another Restricted Subsidiary;
(g) the Lien is in favor of a government or governmental entity and
secures (i) payments pursuant to a contract or statute, or (ii) Debt incurred to
finance all or part of the purchase price or cost of construction or improvement
of the property subject to the Lien;
(h) the Lien extends, renews or replaces in whole or in part a Lien
("existing Lien") permitted by any of clauses (a) through (g) or extends to
property that at the time is not a Principal Property; provided that (i) such
Lien does not extend beyond the property subject to the existing Lien and
improvements and construction on such property, and (ii) the amount of the Debt
secured by such Lien does not exceed the Debt secured at the time by the
existing Lien unless the existing Lien or a predecessor Lien was incurred under
clause (a) or (f); or
(i) the Debt plus all other Debt secured by Liens on Principal
Property at the time does not exceed 10% of Consolidated Total Assets, excluding
(i) Debt secured by a Lien permitted by any of clauses (a) through (h) of this
Section and (ii) Debt secured by a Lien incurred prior to the date of this
Indenture that would have been permitted by any of those clauses if this
Indenture had been in effect at the time the Lien was incurred. Attributable
Debt for any lease permitted by clause (d) of Section 4.3 must be included in
the determination and treated as Debt secured by a Lien on Principal Property
not otherwise permitted by any of clauses (a) through (h) of this Section.
25
SECTION 4.3. Limitation on Sale and Lease-Back Transactions.
The Company shall not, and shall not permit any Restricted Subsidiary
to, enter into a Sale-Leaseback Transaction for a Principal Property, unless one
or more of the following exceptions apply:
(a) the lease has a term of three years or less;
(b) the lease is between the Company and a Restricted Subsidiary or
between Restricted Subsidiaries;
(c) the Company or a Restricted Subsidiary under Sections 4.2(b)
through (h) of this Indenture may create a Lien on the Principal Property to
secure Debt in an amount at least equal to the Attributable Debt for the lease;
(d) the Company or a Restricted Subsidiary under Section 4.2(i) of
this Indenture could create a Lien on the Principal Property to secure Debt in
an amount at least equal to the Attributable Debt for the lease; or
(e) the Company or a Restricted Subsidiary, within 180 days of the
effective date of the lease, retires Long-Term Debt of the Company or a
Restricted Subsidiary in an amount at least equal to the Attributable Debt for
the lease, excluding Debt of the Company that is subordinated to the Notes and
Debt, if paid in cash, that is owned by the Company or a Restricted Subsidiary.
SECTION 4.4. Compliance Certificate. The Company shall deliver to the
Trustee within 120 days after the end of each fiscal year of the Company an
Officers' Certificate signed by its principal executive officer, the principal
financial officer or the principal accounting officer stating that a review of
the activities of the Company during such fiscal year has been made under the
supervision of such officer and whether or not such officer knows of any Default
or Event of Default that occurred during such period. If he or she does, the
certificate shall describe the Default or Event of Default, its status and what
action the Company is taking or proposes to take with respect thereto.
SECTION 4.5. Maintenance of Office or Agency. The Company shall
maintain the office or agency required under Section 2.3. The Company shall give
prior written notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices and demands
may be made or served at the address of the Trustee set forth in Section 10.2.
SECTION 4.6. Existence. Except as otherwise permitted by Article V, the
Company shall do or cause to be done all things necessary to preserve and keep
in full force and effect its existence as a corporation or other Person.
SECTION 4.7. SEC Reports. The Company shall comply with all the
applicable provisions of Section 314(a) of the Trust Indenture Act. Delivery of
such information, documents or reports to the Trustee pursuant to such
provisions is for informational purposes
26
only, and the Trustee's receipt thereof shall not constitute constructive notice
of any information contained therein or determinable from information contained
therein, including the Company's compliance with any of the covenants hereunder
(as to which the Trustee is entitled to rely exclusively on the Officers'
Certificate).
SECTION 4.8. Rule 144A Information Requirement. Within the period prior
to the expiration of the holding period applicable to sales thereof under Rule
144(k) under the Securities Act (or any successor provision), the Company
covenants and agrees that it shall, during any period in which it is not subject
to Section 13 or 15(d) under the Exchange Act, upon the request of any Holder or
beneficial holder of the Notes make available to such Holder or beneficial
holder of such Notes in connection with any sale thereof and any prospective
purchaser of Notes designated by such Holder or beneficial holder, the
information required pursuant to Rule 144A(d)(4) under the Securities Act and it
will take such further action as any Holder or beneficial holder of such Notes
may reasonably request, all to the extent required from time to time to enable
such Holder or beneficial holder to sell its Notes without registration under
the Securities Act within the limitation of the exemption provided by Rule 144A,
as such Rule may be amended from time to time. Upon the request of any Holder or
any beneficial holder of the Notes, the Company will deliver to such Holder a
written statement as to whether it has complied with such requirements.
SECTION 4.9 Stay, Extension And Usury Laws. The Company covenants (to
the extent that it may lawfully do so) that it shall not at any time insist
upon, plead, or in any manner whatsoever claim or take the benefit or advantage
of, any stay, extension or usury law or other law which would prohibit or
forgive the Company from paying all or any portion of the principal of, premium,
if any, or interest (including Additional Interest, if any) on the Notes as
contemplated herein, wherever enacted, now or at any time hereafter in force, or
which may affect the covenants or the performance of this Indenture, and the
Company (to the extent it may lawfully do so) hereby expressly waives all
benefit or advantage of any such law and covenants that it will not, by resort
to any such law, hinder, delay or impede the execution of any power herein
granted to the Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
ARTICLE V
Consolidation, Merger and Sale of Assets
----------------------------------------
SECTION 5.1. Company May Merge or Transfer Assets Only on Certain
Terms. The Company shall not consolidate with or sell or transfer all or
substantially all of its assets to, or merge with or into, in one transaction or
a series of related transactions, any other Person, unless:
(i) the Company shall be the continuing entity, or the
resulting, surviving or transferee Person (the "Successor") shall be a
Person organized and existing under the laws of the United States of
America, any State thereof or the District of Columbia and the
Successor (if not the Company) shall expressly assume, by supplemental
indenture,
27
executed and delivered to the Trustee, in form reasonably satisfactory
to the Trustee, all the obligations of the Company under the Notes and
this Indenture;
(ii) immediately after giving effect to such transaction, no
Default or Event of Default shall have occurred and be continuing; and
(iii) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer and such supplemental indenture, if
any, complies with this Indenture (except that such Opinion of Counsel
need not opine as to clause (ii) above as to which the Trustee is
entitled to rely exclusively on the Officers' Certificate).
SECTION 5.2. Successor Corporation Substituted. The Successor shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company under the Indenture, with the same effect as if the Successor had
been an original party to this Indenture, and the Company shall be released from
all its liabilities and obligations under this Indenture and the Notes.
ARTICLE VI
Defaults and Remedies
---------------------
SECTION 6.1. Events of Default. An "Event of Default" occurs with
respect to the Notes if:
(1) the Company defaults in the payment of any installment of
interest (including Additional Interest) on any Note for 30 days after
becoming due;
(2) the Company defaults in the payment of the principal on or
premium, if any, on any Note when the same becomes due and payable at
its Stated Maturity, upon optional redemption, upon declaration or
otherwise;
(3) the Company defaults in the performance of, or breaches,
any of its covenants and agreements in the Indenture with respect to
the Notes (other than those referred to in (1) or (2) above) and such
default or breach continues for a period of 30 days after the Notice of
Default specified below;
(4) (A) failure by the Company or any Significant Subsidiary
to pay indebtedness for money borrowed by the Company or such
Significant Subsidiary, as the case may be, in an aggregate principal
amount of at least $10,000,000, at the later of final maturity or the
expiration of any applicable grace period or (B) acceleration of the
maturity of indebtedness for money borrowed by the Company or any
Significant Subsidiary, as the case may be, in an aggregate principal
amount of at least $10,000,000, if that acceleration results from a
default under the instrument giving rise to or securing such
indebtedness for money borrowed unless, in each case, such Debt or
acceleration is discharged or annulled within 30 days after written
notice to the Company by the trustee
28
or to the Company and the Trustee by the holders of at least 25% in
principal amount of the outstanding Notes;
(5) the Company or any Significant Subsidiary, pursuant to or
within the meaning of the Bankruptcy Law:
(A) commences as debtor a voluntary case or
proceeding;
(B) consents to the entry of an order for relief
against it in an involuntary case or proceeding;
(C) consents to the appointment of a Custodian of it
or for all or substantially all of its property;
(D) makes a general assignment for the benefit of its
creditors;
(E) files a petition in bankruptcy as debtor or an
answer or consent seeking reorganization or relief;
(F) consents to the filing of such petition or the
appointment of or taking possession by a Custodian;
(G) takes any comparable action under any foreign
laws relating to insolvency; or
(6) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(A) is for relief against the Company or any of its
Significant Subsidiaries as debtor in an involuntary case, or
adjudicates the Company or any of its Significant Subsidiaries
insolvent or bankrupt;
(B) appoints a Custodian of the Company or any of its
Significant Subsidiaries or for all or substantially all of
the property of the Company or any of its Significant
Subsidiaries; or
(C) orders the winding-up or liquidation of the
Company or any of its Significant Subsidiaries (or any similar
relief is granted under any foreign laws)
and the order or decree remains unstayed and in effect for 60 days.
The foregoing shall constitute Events of Default whatever the reason
for any such Event of Default and whether it is voluntary or involuntary or is
effected by operation of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental
body.
29
The term "Bankruptcy Law" means Xxxxx 00, Xxxxxx Xxxxxx Code, or any
similar federal or state or foreign law for the relief of debtors. The term
"Custodian" means any custodian, receiver, trustee, assignee, liquidator or
other similar official under any Bankruptcy Law.
If any failure, default or acceleration referred to in clause (4) above
shall cease or be cured, waived, rescinded or annulled, then the Event of
Default hereunder by reason thereof shall be deemed likewise to have been
thereupon cured.
A Default with respect to Notes under clauses (3) or (4) of this
Section 6.1 is not an Event of Default until the Trustee (by written notice to
the Company) or the Holders of at least 25% in aggregate principal amount of the
outstanding Notes (by written notice to the Company and the Trustee) gives
notice of the Default and the Company does not cure such Default within the time
specified in said clause (3) or (4) after receipt of such notice. Such notice
must specify the Default, demand that it be remedied and state that such notice
is a "Notice of Default."
The Company shall deliver to the Trustee, within 30 days after
knowledge of the occurrence thereof, written notice in the form of an Officers'
Certificate of any event which with the giving of notice or the lapse of time
would become an Event of Default under clause (3), (4) or (5) of this Section
6.1, its status and what action the Company is taking or proposes to take with
respect thereto.
SECTION 6.2. Acceleration. If an Event of Default with respect to the
Notes (other than an Event of Default specified in Section 6.1(5) or 6.1(6) with
respect to the Company) occurs and is continuing, the Trustee by notice to the
Company, or the Holders of at least 25% in aggregate principal amount of the
outstanding Notes by notice to the Company and the Trustee, may, and the Trustee
at the written request of such Holders, subject to Section 6.5, shall, declare
the principal of and accrued but unpaid interest on all the Notes to be due and
payable. Upon such a declaration, such principal and accrued and unpaid interest
shall be due and payable immediately. If an Event of Default specified in
Section 6.1(5) or 6.1(6) with respect to the Company occurs and is continuing,
the principal of and accrued and unpaid interest on all the Notes shall IPSO
FACTO become and be immediately due and payable without any declaration or other
act on the part of the Trustee or any Holders. The Holders of a majority in
aggregate principal amount of the outstanding Notes by notice to the Trustee may
rescind an acceleration and its consequences if all existing Events of Default
have been cured or waived except nonpayment of principal or interest that has
become due solely because of such acceleration and the Trustee has been paid any
amounts due to it for reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel and any other amounts due the
Trustee under Section 7.7 hereof. No such rescission shall affect any subsequent
Default or Event of Default or impair any right consequent thereto.
SECTION 6.3. Other Remedies. If an Event of Default with respect to the
Notes occurs and is continuing, the Trustee may pursue any available remedy to
collect the payment of principal of or interest on the Notes or to enforce the
performance of any provision of the Notes or this Indenture.
30
The Trustee may maintain a proceeding even if it does not possess any
of the Notes or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Noteholder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are, to the extent
permitted by law, cumulative.
SECTION 6.4. Waiver of Past Defaults. Subject to the payment of any
amount due to the Trustee under Section 6.2, the Holders of a majority in
aggregate principal amount of the Notes then outstanding by notice to the
Trustee may, on behalf o the Holders of the Notes, waive any past or existing
Default or Event of Default and its consequences except (i) an uncured Default
or Event of Default in the payment of the principal of or interest on a Note or
(ii) an uncured Default or Event of Default in respect of a provision that under
Section 9.2 cannot be amended without the consent of each Noteholder affected.
When a Default or Event of Default is waived, it is deemed cured, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture, but no such waiver shall extend to any subsequent or
other Default or Event of Default or impair any consequent right.
SECTION 6.5. Control by Majority. Upon provision of security or
indemnity satisfactory to the Trustee, the Holders of a majority in aggregate
principal amount of the Notes then outstanding may direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee with
respect to the Notes or of exercising any trust or power conferred on the
Trustee. However, the Trustee, which may conclusively rely on opinions of
counsel, may refuse to follow any direction that conflicts with law or this
Indenture or that the Trustee determines is prejudicial to the rights of other
Noteholders or would involve the Trustee in personal liability; provided that
the Trustee may take any other action deemed proper by the Trustee that is not
inconsistent with such direction.
SECTION 6.6. Limitation on Suits. A Holder of Notes may not pursue any
remedy with respect to this Indenture or the Notes unless:
(i) An Event of Default shall have occurred and be continuing
and the Holder gives to the Trustee prior written notice stating that
an Event of Default is continuing;
(ii) the Holders of at least 25% in aggregate principal amount
of the Notes then outstanding make a written request to the Trustee to
pursue the remedy;
(iii) such Holder or Holders offer to the Trustee indemnity
satisfactory to it against any costs, liabilities or expenses in
compliance with such request;
(iv) the Trustee does not comply with the request within 60
days after receipt of the request and the offer of security or
indemnity; and
(v) the Holders of a majority in aggregate principal amount of
the Notes then outstanding do not give the Trustee a direction
inconsistent with the request during such 60-day period.
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A Noteholder may not use this Indenture to prejudice the rights of
another Noteholder or to obtain a preference or priority over another Noteholder
(it being understood that the Trustee shall not have an affirmative duty to
ascertain whether or not such actions or forbearances are prejudicial to such
Noteholders).
SECTION 6.7. Rights of Holders To Receive Payment. Notwithstanding any
other provision of this Indenture, the right of any Holder to receive payment of
principal of and interest on the Notes held by such Holder, on or after the
respective due dates expressed in the Notes, or to bring suit for the
enforcement of any such payment on or after such respective dates, shall not be
impaired or affected without the consent of such Holder.
SECTION 6.8. Collection Suit by Trustee. If an Event of Default
specified in Section 6.1(1) or 6.1(2) occurs and is continuing, the Trustee may
recover judgment in its own name and as trustee of an express trust against the
Company for the whole amount then due and owing (together with interest on any
unpaid interest to the extent lawful) and the amounts provided for in Section
7.7.
SECTION 6.9. Trustee May File Proofs of Claim. The Trustee may file
such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel) and the Noteholders allowed in any judicial
proceedings relative to the Company or the property of the Company under any
Bankruptcy Law, and, unless prohibited by law or applicable regulations, may
vote on behalf of the Holders in any election of a trustee in bankruptcy or
other Person performing similar functions. Any Custodian in any such judicial
proceeding is hereby authorized by each Holder to make payments to the Trustee
and, in the event that the Trustee shall consent to the making of such payments
directly to the Holders, to pay to the Trustee any amount due it for the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and its counsel, and any other amounts due the Trustee under Section
7.7 in accordance with Section 6.10.
SECTION 6.10. Priorities. Any money or other property collected by the
Trustee pursuant to Article VI hereof, or any money or other property otherwise
distributable in respect of the Company's obligations under this Indenture,
shall be applied in the following order:
FIRST: to the Trustee (including any predecessor Trustee) for
amounts due under Section 7.7;
SECOND: to Noteholders for amounts due and unpaid on the Notes
for principal and interest, ratably, without preference or priority of
any kind, according to the amounts due and payable on the Notes for
principal and interest, respectively; and
THIRD: to the Company.
The Trustee may, upon prior written notice to the Company, fix a record
date and payment date for any payment to Noteholders pursuant to this Section
6.10. At least 15 days before such record date, the Company shall mail to each
Noteholder and the Trustee a notice that states the record date, the payment
date and amount to be paid.
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SECTION 6.11. Undertaking for Costs. In any suit for the enforcement of
any right or remedy under this Indenture or in any suit against the Trustee for
any action taken or omitted by it as Trustee, a court in its discretion may
require the filing by any party litigant in the suit of an undertaking to pay
the costs of the suit, and the court in its discretion may assess reasonable
costs, including reasonable attorneys' fees and expenses, against any party
litigant in the suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section 6.11 does not apply
to a suit by the Trustee, a suit by a Holder pursuant to Section 6.7 or a suit
by Holders of more than 10% in aggregate principal amount of the outstanding
Notes.
ARTICLE VII
Trustee
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SECTION 7.1. Duties of Trustee. (a) If an Event of Default has occurred
and is continuing, the Trustee shall exercise the rights and powers vested in it
by this Indenture and use the same degree of care and skill in their exercise as
a prudent Person would exercise or use under the circumstances in the conduct of
such Person's own affairs.
(b) Except during the continuance of an Event of Default:
(i) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon Officers'
Certificates and Opinions of Counsel furnished to the Trustee and
conforming to the requirements of this Indenture. However, in the case
of any such Officers' Certificates and Opinions of Counsel which by any
provision hereof are specifically required to be furnished to the
Trustee, the Trustee shall examine such Officers' Certificates and
Opinions of Counsel to determine whether or not they conform to the
requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(i) this subsection does not limit the effect of Section
7.1(b) or Section 7.1(f);
(ii) the Trustee shall not be liable for any error of judgment
made in good faith by a Trust Officer unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts; and
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(iii) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.5.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to Section 7.1(a), 7.1(b), 7.1(c) and 7.1(f).
(e) The Trustee shall not be liable for interest on any money or other
property received by it or for holding moneys or other property uninvested, in
either case, except as otherwise agreed between the Company and the Trustee.
Money and other property held in trust by the Trustee shall, until used or
applied as herein provided, be held in trust for the purposes for which they
were received, but need not be segregated from other money or property except to
the extent required by law.
(f) No provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any liability, financial or otherwise,
in the performance of any of its duties hereunder or in the exercise of any of
its rights or powers, if it shall have reasonable grounds to believe that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
(g) Every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section 7.1 and to the provisions of the Trust
Indenture Act, where applicable.
SECTION 7.2. Rights of Trustee. (a) The Trustee may conclusively rely
on, and shall be protected in acting or refraining from acting in reliance on,
any document believed by it to be genuine and to have been signed or presented
by the proper person. The Trustee need not investigate any fact or matter stated
in the document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel, or both. The Trustee shall not
be liable for any action it takes or omits to take in good faith in reliance on
the Officers' Certificate or Opinion of Counsel.
(c) The Trustee may execute any of the trusts or powers or perform any
duties hereunder either directly through attorneys and agents, respectively, and
shall not be responsible for the misconduct or negligence of any attorney or
agent appointed with due care by it hereunder.
(d) The Trustee shall not be liable for any action it takes, suffers to
exist or omits to take in good faith which it believes to be authorized or
within its rights or powers; provided that the Trustee's conduct does not
constitute willful misconduct, bad faith or negligence.
(e) The Trustee may consult with counsel of its selection, and the
advice or opinion of counsel with respect to legal matters relating to this
Indenture and the Notes shall be full and complete authorization and protection
from liability in respect to any action taken, omitted or suffered by it
hereunder in good faith and in reliance thereon.
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(f) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders pursuant to this Indenture, unless such Holders shall have
offered to the Trustee security or indemnity satisfactory to it against the
costs, expenses and liabilities which might be incurred by it in compliance with
such request or direction.
(g) The Trustee shall not be charged with knowledge of any Default or
Event of Default with respect to the Notes unless either (1) a Trust Officer
shall have actual knowledge of such Default or Event of Default or (2) written
notice of such Default or Event of Default shall have been given to a Trust
Officer of the Trustee at the Corporate Trust Office by the Company or any other
obligor on the Notes or by any Holder of the Notes. Any such notice shall
reference this Indenture and the Notes.
(h) The rights, privileges, protections, immunities and benefits given
to the Trustee pursuant to this Indenture, including its rights to be
indemnified, are extended to, and shall be enforceable by, the Trustee in each
of its capacities as Registrar and Paying Agent, as the case may be, hereunder.
(i) The Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further reasonable inquiry or
reasonable investigation into such facts or matters as it may see fit, and, if
the Trustee shall determine to make such further inquiry or investigation, it
shall be entitled, upon reasonable notice and at reasonable times, to examine
the books, records and premises of the Company, personally or by agent or
attorney at the sole cost of the Company and shall incur no liability or
additional liability of any kind by reason of such inquiry or investigation.
(j) The Trustee may request that the Company deliver a certificate,
substantially in the form of Exhibit E hereto, setting forth the names of
individuals and/or titles of Officers authorized at such time to take specified
actions pursuant to this Indenture.
(k) The permissive rights of the Trustee enumerated herein shall not be
construed as duties.
SECTION 7.3. Individual Rights of Trustee. The Trustee in its
individual or any other capacity may become the owner or pledgee of Notes and
may otherwise deal with the Company with the same rights it would have if it
were not Trustee. Any Paying Agent, Registrar or co-paying agent may do the same
with like rights. However, the Trustee must comply with Sections 7.10 and 7.11.
SECTION 7.4. Trustee's Disclaimer. The Trustee shall not be responsible
for and makes no representation as to the validity or adequacy of this Indenture
or the Notes, it shall not be accountable for the Company's use of the proceeds
from the Notes, and it shall not be responsible for any statement of the Company
in this Indenture or in any document issued in connection with the sale of the
Notes or in the Notes other than the Trustee's certificate of authentication.
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SECTION 7.5. Notice of Defaults. If a Default or an Event of Default
occurs with respect to the Notes and is continuing and if it is actually known
to the Trustee, the Trustee shall mail to each Noteholder notice of the Default
within 90 days after it is known to a Trust Officer or written notice of it is
received by a Trust Officer of the Trustee. Except in the case of a Default in
payment of principal of or interest on any Note, the Trustee may withhold the
notice if and so long as a committee of its Trust Officers in good faith
determines that withholding the notice is not opposed to the interests of
Noteholders.
SECTION 7.6. Reports by Trustee to Holders. As promptly as practicable
after each May 15 beginning with the May 15 following the date of this
Indenture, and in any event prior to July 15 in each year, the Trustee shall
mail to each Noteholder a brief report dated as of such May 15 that complies
with Section 313(a) of the Trust Indenture Act. The Trustee also shall comply
with Section 313(b) of the Trust Indenture Act. The Trustee shall promptly
deliver to the Company a copy of any report it delivers to Holders pursuant to
this Section 7.6.
A copy of each report at the time of its mailing to Noteholders shall
be filed by the Trustee with the SEC and each stock exchange (if any) on which
the Notes are listed. The Company agrees to notify promptly the Trustee in
writing whenever the Notes become listed on any stock exchange and of any
delisting thereof.
SECTION 7.7. Compensation and Indemnity. The Company covenants and
agrees to pay to the Trustee (and any predecessor Trustee) from time to time
such reasonable compensation for its services as the Company and the Trustee
shall from time to time agree in writing. The Trustee's compensation shall not
be limited by any law on compensation of a trustee of an express trust. The
Company shall reimburse the Trustee upon request for all reasonable
out-of-pocket expenses (including attorneys' fees and expenses), disbursements
and advances incurred or made by it in accordance with the provisions of this
Indenture, including costs of collection, in addition to such compensation for
its services, except any such expense, disbursement or advance as shall be
determined to have been caused by its own negligence, willful misconduct or bad
faith. Such expenses shall include the reasonable compensation and expenses,
disbursements and advances of the Trustee's agents and counsel. The Trustee
shall provide the Company reasonable notice of any expenditure not in the
ordinary course of business. The Company shall indemnify each of the Trustee,
its officers, directors, employees and any predecessor Trustees against any and
all loss, damage, claim, liability or expense (including reasonable attorneys'
fees and expenses) (other than taxes applicable to the Trustee's compensation
hereunder) incurred by it in connection with the acceptance or administration of
this trust and the performance of its duties hereunder. The Trustee shall notify
the Company promptly of any claim of which a Trust Officer has received written
notice for which it may seek indemnity. Failure by the Trustee so to notify the
Company shall not relieve the Company of its obligations hereunder, except to
the extent that the Company has been prejudiced by such failure. The Company
shall defend the claim and the Trustee shall cooperate, to the extent
reasonable, in the defense of any such claim, and, if (in the opinion of counsel
to the Trustee) the facts and/or issues surrounding the claim are reasonably
likely to create a conflict with the Company, the Company shall pay the
reasonable fees and expenses of separate counsel to the Trustee. The Company
need not reimburse any expense or indemnify against any loss, liability or
expense incurred by the Trustee through the Trustee's own willful misconduct,
negligence or bad faith.
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The Company need not pay for any settlement made without its consent, which
consent shall not be unreasonably withheld or delayed.
To secure the Company's payment obligations in this Section 7.7, the
Trustee (including any predecessor trustee) shall have a lien prior to the Notes
on all money or property held or collected by the Trustee other than money or
property held in trust to pay principal of and premium, if any, and interest on
particular Notes.
The Company's payment obligations pursuant to this Section 7.7 shall
survive the satisfaction, discharge and termination of this Indenture, the
resignation or removal of the Trustee and any discharge of this Indenture
including any discharge under any Bankruptcy Law. In addition to and without
prejudice to the rights provided to the Trustee under any of the provisions of
this Indenture, when the Trustee incurs expenses or renders services after the
occurrence of a Default specified in Section 6.1(5) or 6.1(6) with respect to
the Company, the expenses and the compensation for the services are intended to
constitute expenses of administration under the Bankruptcy Law.
SECTION 7.8. Replacement of Trustee. The Trustee may resign at any time
upon 30 days' written notice to the Company. The Holders of a majority in
principal amount of the Notes then outstanding, may remove the Trustee upon 30
days' written notice to the Trustee and may appoint a successor Trustee, which
successor Trustee shall be reasonably acceptable to the Company. The Company
shall remove the Trustee if:
(i) the Trustee fails to comply with Section 7.10;
(ii) the Trustee is adjudged bankrupt or insolvent;
(iii) a receiver or other public officer takes charge of the
Trustee or its property; or
(iv) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns, is removed by the Company or by the Holders of
a majority in principal amount of the Notes and the Company does not reasonably
promptly appoint a successor Trustee, or if a vacancy exists in the office of
Trustee for any reason (the Trustee in such event being referred to herein as
the retiring Trustee), the Holders of a majority in principal amount of the
Notes shall promptly appoint a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company and the Company shall pay
all amounts due and owing to the Trustee under Section 7.7 of the Indenture.
Thereupon the resignation or removal of the retiring Trustee shall become
effective, and the successor Trustee shall have all the rights, powers and
duties of the Trustee under this Indenture. The successor Trustee shall mail a
notice of its succession to Noteholders affected by such resignation or removal.
The retiring Trustee shall promptly transfer all property held by it as Trustee
to the successor Trustee, subject to the lien provided for in Section 7.7.
37
If a successor Trustee does not take office with respect to the Notes
within 30 days after the retiring Trustee resigns or is removed, the retiring
Trustee or the Holders of 10% in principal amount of the Notes may at the
expense of the Company petition any court of competent jurisdiction for the
appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any Noteholder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
Notwithstanding the replacement of the Trustee pursuant to this Section
7.8, the Company's obligations under Section 7.7 shall continue for the benefit
of the retiring Trustee.
SECTION 7.9. Successor Trustee by Merger. If the Trustee consolidates
with, merges or converts into, or transfers all or substantially all its
corporate trust business or assets to, another corporation or banking
association, the resulting, surviving or transferee corporation without any
further act shall be the successor Trustee; provided that such corporation shall
be otherwise qualified and eligible under this Article VII and Section 310(a) of
the Trust Indenture Act, without the execution or filing of any paper or any
further act on the part of the parties hereto.
In case at the time such successor or successors by merger, conversion
or consolidation to the Trustee shall succeed to the trusts created by this
Indenture any of the Notes shall have been authenticated but not delivered, any
such successor to the Trustee may adopt the certificate of authentication of any
predecessor trustee, and deliver such Notes so authenticated; and in case at
that time any of the Notes shall not have been authenticated, any successor to
the Trustee may authenticate such Notes either in the name of any predecessor
hereunder or in the name of the successor to the Trustee; and in all such cases
such certificates shall have the full force which it is anywhere in the Notes or
in this Indenture provided that the certificate of the Trustee shall have
executed.
SECTION 7.10. Eligibility; Disqualification. The Trustee shall at all
times satisfy the requirements of Section 310(a) of the Trust Indenture Act. The
Trustee shall have a combined capital and surplus of at least $50,000,000 as set
forth in its most recent published annual report of condition. The Trustee shall
comply with Section 310(b) of the Trust Indenture Act; provided that there shall
be excluded from the operation of Section 310(b)(1) of the Trust Indenture Act
any indenture or indentures under which other securities or certificates of
interest or participation in other securities of the Company are outstanding if
the requirements for such exclusion set forth in Section 310(b)(1) of the Trust
Indenture Act are met.
Nothing herein shall prevent the Trustee from filing with the
Commission the application referred to in the second to last paragraph of
Section 310(b) of the Trust Indenture Act.
SECTION 7.11. Preferential Collection of Claims Against the Company.
The Trustee shall comply with Section 311(a) of the Trust Indenture Act,
excluding any creditor relationship listed in Section 311(b) of the Trust
Indenture Act. A Trustee who has resigned or
38
been removed shall be subject to Section 311(a) of the Trust Indenture Act to
the extent indicated.
ARTICLE VIII
Discharge of Indenture; Defeasance
----------------------------------
SECTION 8.1. Discharge of Liability on Notes; Defeasance. With respect
to the Notes, (a) when (i) the Company delivers to the Trustee all outstanding
Notes that have not already been delivered to the Trustee for cancellation or
(ii) all outstanding Notes have become due and payable, whether at maturity or
as a result of the mailing of a notice of redemption pursuant to Article III
hereof or the Notes shall become due and payable at their Stated Maturity within
one year, or the Notes are to be called for redemption within one year under
arrangements reasonably satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the Company, and,
in each case of this clause (ii), the Company irrevocably deposits or causes to
be deposited with the Trustee funds sufficient to pay at maturity or upon
redemption all outstanding Notes, including interest thereon to maturity or such
redemption date, and if in either case the Company pays all other sums payable
hereunder by the Company, then this Indenture shall, subject to Section 8.1(c),
cease to be of further effect. The Trustee shall acknowledge satisfaction and
discharge of this Indenture on demand of the Company accompanied by an Officers'
Certificate from the Company and an Opinion of Counsel from the Company that all
conditions precedent provided herein for relating to satisfaction and discharge
of this Indenture have been complied with and at the cost and expense of the
Company.
(b) Subject to Sections 8.1(c) and 8.2, the Company at any time may
terminate (i) all of its obligations under the Notes and this Indenture ("legal
defeasance option") or (ii) its obligations under Section 4.2 and Section 4.3
and the operation of Sections 6.1(3) and 6.1(4) ("covenant defeasance option").
The Company may exercise its legal defeasance option notwithstanding its prior
exercise of its covenant defeasance option.
If the Company exercises its legal defeasance option with respect to
the Notes, payment of the Notes may not be accelerated because of an Event of
Default. If the Company exercises its covenant defeasance option, payment of the
Notes may not be accelerated because of an Event of Default specified in
Sections 6.1(3) (only with respect to the covenants terminated pursuant to
Section 8.1(b)(ii) above) or 6.1(4).
Upon satisfaction of the conditions set forth herein and upon request
of the Company, the Trustee shall acknowledge in writing the discharge of those
obligations that the Company terminates.
(c) Notwithstanding clauses (a) and (b) above, the Company's
obligations in Sections 2.3, 2.4, 2.5, 2.9, 4.1, 4.5, 7.7, 7.8, 8.4, 8.5 and 8.6
shall survive until the Notes have been paid in full. Thereafter, the Company's
and the Trustee's obligations in Sections 7.7, 8.4 and 8.5 shall survive such
satisfaction and discharge.
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SECTION 8.2. Conditions to Defeasance. The Company may exercise its
legal defeasance option or its covenant defeasance option with respect to the
Notes only if:
(i) the Company irrevocably deposits or causes to be deposited
in trust with the Trustee money or U.S. Government Obligations which
through the scheduled payment of principal and interest in respect
thereof in accordance with their terms shall provide cash at such times
and in such amounts as shall be sufficient to pay principal and
interest when due on all outstanding Notes (except Notes replaced
pursuant to Section 2.9) to maturity or redemption, as the case may be;
(ii) the Company delivers to the Trustee a certificate from a
nationally recognized firm of independent accountants expressing their
opinion that the payments of principal and interest when due and
without reinvestment on the deposited U.S. Government Obligations plus
any deposited money without investment shall provide cash at such times
and in such amounts as shall be sufficient to pay principal and
interest when due on all outstanding Notes (except Notes replaced
pursuant to Section 2.9) to maturity or redemption, as the case may be;
(iii) 91 days pass after the deposit is made and during the
91-day period no Default with respect to the Company as debtor
specified in Section 6.1(5) or 6.1(6) occurs which is continuing at the
end of the period;
(iv) the deposit does not constitute a default under any other
material agreement binding on the Company;
(v) in the case of the legal defeasance option, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that
(i) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling, or (ii) since the date of this
Indenture there has been a change in the applicable federal income tax
law, in either case to the effect that, and based thereon such Opinion
of Counsel shall confirm that, the Noteholders shall not recognize
income, gain or loss for federal income tax purposes as a result of
such deposit and defeasance and shall be subject to federal income tax
on the same amounts, in the same manner and at the same times as would
have been the case if such deposit and defeasance had not occurred;
(vi) in the case of the covenant defeasance option, the
Company shall have delivered to the Trustee an Opinion of Counsel to
the effect that the Noteholders shall not recognize income, gain or
loss for federal income tax purposes as a result of such deposit and
defeasance and shall be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been
the case if such deposit and defeasance had not occurred; and
(vii) the Company delivers to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance and discharge of the Notes as contemplated
by this Article VIII have been complied with.
40
Before or after a deposit, the Company may make arrangements reasonably
satisfactory to the Trustee for the redemption of Notes at a future date in
accordance with Article III.
SECTION 8.3. Application of Trust Money. The Trustee shall hold in
trust money or U.S. Government Obligations deposited with it pursuant to this
Article VIII. It shall apply the deposited money and the money from U.S.
Government Obligations either directly or through the Paying Agent as the
Trustee may determine and in accordance with this Indenture to the payment of
principal of and interest on the Notes.
SECTION 8.4. Repayment to the Company. The Trustee and the Paying Agent
shall promptly turn over to the Company upon request any excess money or
securities held by them at any time.
Subject to any applicable abandoned property law, the Trustee and the
Paying Agent shall pay to the Company upon written request any money held by
them for the payment of principal or interest that remains unclaimed for two
years after the date of payment of such principal and interest, and, thereafter,
Noteholders entitled to the money must look to the Company for payment as
general creditors.
Any unclaimed funds held by the Trustee pursuant to this Section 8.4
shall be held uninvested and without any liability for interest.
SECTION 8.5. Indemnity for Government Obligations. The Company shall
pay and shall indemnify the Trustee against any tax, fee or other charge imposed
on or assessed against deposited U.S. Government Obligations or the principal
and interest received on such U.S. Government Obligations other than any such
tax, fee or other charge which by law is for the account of the Holders of the
defeased Notes; provided that the Trustee shall be entitled to charge any such
tax, fee or other charge to such Holder's account.
SECTION 8.6. Reinstatement. If the Trustee or Paying Agent is unable to
apply any money or U.S. Government Obligations in accordance with this Article
VIII by reason of any legal proceeding or by reason of any order or judgment of
any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, the Company's obligations under this Indenture and
the Notes shall be revived and reinstated as though no deposit had occurred
pursuant to this Article VIII until such time as the Trustee or Paying Agent is
permitted to apply all such money or U.S. Government Obligations in accordance
with this Article VIII; provided that (a) if the Company has made any payment of
interest on or principal of any Notes following the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of
such Notes to receive such payment from the money or U.S. Government Obligations
held by the Trustee or Paying Agent and (b) unless otherwise required by any
legal proceeding or any order or judgment of any court or governmental
authority, the Trustee or Paying Agent shall return all such money and U.S.
Government Obligations to the Company promptly after receiving a written request
therefor at any time, if such reinstatement of the Company's obligations has
occurred and continues to be in effect.
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ARTICLE IX
Amendments
----------
SECTION 9.1. Without Consent of Holders. The Company and the Trustee
may amend this Indenture or the Notes without notice to or consent of any
Noteholder:
(i) to cure any ambiguity, omission, defect or inconsistency;
(ii) to comply with Article V;
(iii) to add any additional Events of Default;
(iv) to add to the covenants of the Company for the benefit of
the Holders of all the Notes or to surrender any right or power herein
conferred upon the Company;
(v) to add one or more guarantees for the benefit of holders
of the Notes;
(vi) to secure the Notes pursuant to the terms of this
Indenture;
(vii) to add or appoint a successor or separate Trustee or
other agent;
(viii) to provide for the issuance of the Exchange Notes,
which shall have terms substantially identical in all material respects
to the Initial Notes (except that the transfer restrictions contained
in the Initial Notes shall be modified or eliminated, as appropriate,
and there shall be no registration rights), and which shall be treated,
together with any outstanding Initial Notes, as a single issue of
securities;
(ix) to provide for the issuance of any Additional Notes;
(x) to comply with any requirements in connection with
qualifying this Indenture under the Trust Indenture Act;
(xi) to comply with the rules of any applicable securities
depositary; and
(xii) to change any other provision if the change does not
adversely affect the interests of any Noteholder in any material
respect.
After an amendment under this Section 9.1 becomes effective, the
Company shall mail to Noteholders a notice briefly describing such amendment.
The failure to give such notice to all Noteholders, or any defect therein, shall
not impair or affect the validity of an amendment under this Section 9.1.
SECTION 9.2. With Consent of Holders. The Company and the Trustee may
amend this Indenture or the Notes without notice to any Noteholder but with the
written consent of the Holders of at least a majority in principal amount of the
Notes then outstanding (including consents obtained in connection with a tender
offer or exchange for Notes). However, without the consent of each Noteholder
affected, an amendment may not:
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(i) change the Stated Maturity of the principal of, or
installment of interest on, any Note;
(ii) reduce the principal amount of, or the rate of interest
on, any Notes;
(iii) reduce any premium payable on the redemption of any Note
or change the date on which any Note must be redeemed;
(iv) change the coin or currency in which the principal of or
premium, if any, or interest on any Note is payable;
(v) impair the right of any Holder to institute suit for the
enforcement of any payment on or after the Stated Maturity of any Note;
(vi) reduce the percentage in principal amount of the
outstanding Notes, the consent of whose Holders is required in order to
take certain actions;
(vii) modify any of the provisions of this Indenture regarding
the waiver of past defaults and the waiver of certain covenants by
Holders except to increase any percentage vote required or to provide
that certain other provisions of the Indenture cannot be modified or
waived without the consent of the holder of each Note affected thereby;
(viii) modify the ranking of the Notes; or
(ix) modify any of the above provisions of this Section 9.2.
It shall not be necessary for the consent of the Holders under this
Section 9.2 to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent approves the substance thereof.
After an amendment under this Section 9.2 becomes effective, the
Company shall mail to Noteholders a notice briefly describing such amendment.
The failure to give such notice to all Noteholders, or any defect therein, shall
not impair or affect the validity of an amendment under this Section 9.2.
SECTION 9.3. Compliance with Trust Indenture Act. Every amendment to
this Indenture or the Notes shall comply with the Trust Indenture Act as then in
effect.
SECTION 9.4. Effect of Consents and Waivers. A consent to an amendment,
supplement or a waiver by a Holder of a Note shall bind the Holder and every
subsequent Holder of that Note or portion of the Note that evidences the same
debt as the consenting Holder's Note, even if notation of the consent or waiver
is not made on the Note. After an amendment or waiver becomes effective with
respect to the Notes, it shall bind every Noteholder.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Noteholders entitled to give their consent or
take any other action described above or required or permitted to be taken
pursuant to this Indenture. If a record date is fixed,
43
then notwithstanding the immediately preceding paragraph, those Persons who were
Noteholders at such record date (or their duly designated proxies), and only
those Persons, shall be entitled to give such consent or to take any such
action, whether or not such Persons continue to be Holders after such record
date.
SECTION 9.5. Notation on or Exchange of Notes. If an amendment changes
the terms of a Note, the Trustee may require the Holder of the Note to deliver
it to the Trustee. The Company shall provide in writing to the Trustee an
appropriate notation to be placed on the Note regarding the changed terms and
return it to the Holder. Alternatively, if the Company or the Trustee so
determine, the Company in exchange for the Note shall issue and the Trustee
shall authenticate a new Note that reflects the changed terms. Failure to make
the appropriate notation or to issue a new Note shall not affect the validity of
such amendment.
SECTION 9.6. Trustee To Sign Amendments. The Trustee shall sign any
amendment authorized pursuant to this Article IX if the amendment does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.
If it does, the Trustee may but need not sign it. In signing such amendment the
Trustee shall receive indemnity reasonably satisfactory to it and be provided
with, and (subject to Section 7.1) shall be fully protected in conclusively
relying upon, in addition to the documents required by Section 10.4, an
Officers' Certificate of the Company and an Opinion of Counsel stating that such
amendment complies with the provisions of this Article IX and that such
supplemental indenture constitutes the legal valid and binding obligation of the
Company in accordance with its terms subject to customary exceptions.
Upon the execution of any supplemental indenture under this Article IX,
this Indenture shall be modified in accordance therewith, and such supplemental
Indenture shall form a part of this Indenture for all purposes; and every
Noteholder theretofore or thereafter authenticated and delivered hereunder shall
be bound thereby.
ARTICLE X
Miscellaneous
-------------
SECTION 10.1. Trust Indenture Act Controls. If any provision of this
Indenture limits, qualifies or conflicts with the duties imposed by, or with
another provision included or which is required to be included in this Indenture
by the Trust Indenture Act, the duty or provision required by the Trust
Indenture Act shall control.
SECTION 10.2. Notices. Any notice or communication shall be in writing
(including facsimile) and delivered in person or mailed by first-class mail
addressed as follows:
if to the Company:
THE VALSPAR CORPORATION
0000 Xxxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Facsimile Number: (000) 000-0000
Attention: Treasurer
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if to the Trustee:
The Bank of New York Trust Company, N.A.
0 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Facsimile Number: (000) 000-0000
Attention: Corporate Trust Administration
Any notices between the Company and the Trustee may be by facsimile or
certified first class mail, receipt confirmed and the original to follow by
guaranteed overnight courier. The Company or the Trustee by notice to the others
may designate additional or different addresses for subsequent notices or
communications.
Any notice or communication mailed to a Noteholder shall be mailed to
the Noteholder at the Noteholder's address as it appears on the registration
books of the Registrar and shall be sufficiently given if so mailed within the
time prescribed.
Failure to mail a notice or communication to a Noteholder or any defect
in it shall not affect its sufficiency with respect to other Noteholders. If a
notice or communication is mailed in the manner provided above, it is duly
given, whether or not the addressee receives it.
SECTION 10.3. Communication by Holders with other Holders. Noteholders
may communicate pursuant to Section 312(b) of the Trust Indenture Act with other
Noteholders with respect to their rights under this Indenture or the Notes. The
Company, the Trustee, the Registrar and anyone else shall have the protection of
Section 312(c) of the Trust Indenture Act.
SECTION 10.4. Certificate and Opinion as to Conditions Precedent. Upon
any request or application by the Company to the Trustee to take or refrain from
taking any action under this Indenture, the Company shall, if requested by the
Trustee, furnish to the Trustee:
(i) an Officers' Certificate of the Company in form reasonably
satisfactory to the Trustee stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with; and
(ii) an Opinion of Counsel of the Company in form reasonably
satisfactory to the Trustee stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
Notwithstanding the foregoing, no such Opinion of Counsel shall be
given with respect to the authentication and delivery of any Initial Notes.
45
SECTION 10.5. Statements Required in Certificate or Opinion. The
certificate or opinion with respect to compliance with a covenant or condition
provided for in this Indenture shall include:
(i) a statement that the individual making such certificate or
opinion has read such covenant or condition;
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(iii) a statement that, in the opinion of such individual, he
has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(iv) a statement as to whether or not, in the opinion of such
individual, such covenant or condition has been complied with.
SECTION 10.6. When Notes Disregarded. In determining whether the
Holders of the required principal amount of Notes have concurred in any
direction, waiver or consent, Notes owned by the Company or by any Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with the Company (an "Affiliate") shall be disregarded and deemed
not to be outstanding, except that, for the purpose of determining whether the
Trustee shall be protected in conclusively relying on any such direction, waiver
or consent, only Notes which a Trust Officer of the Trustee actually knows are
so owned shall be so disregarded. Also, subject to the foregoing, only Notes
outstanding at the time shall be considered in any such determination.
SECTION 10.7. Rules by Trustee, Paying Agent and Registrar. The Trustee
may make reasonable rules for action by or a meeting of Noteholders. The
Registrar and the Paying Agent may make reasonable rules for their functions.
SECTION 10.8. Governing Law. THIS INDENTURE AND THE NOTES SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
SECTION 10.9. No Recourse Against Others. A director, officer, employee
or stockholder of the Company, shall not have any liability for any obligations
of the Company under the Notes, this Indenture or the Registration Rights
Agreement or for any claim based on, in respect of or by reason of such
obligations or their creation. By accepting a Note, each Noteholder shall waive
and release all such liability. The waiver and release shall be part of the
consideration for the issue of the Notes.
SECTION 10.10. Successors. All agreements of the Company in this
Indenture and the Notes shall bind its successors and assigns. All agreements of
the Trustee in this Indenture shall bind its successors.
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SECTION 10.11. Multiple Originals. The parties may sign any number of
copies of this Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement. One signed copy is enough to prove this
Indenture.
SECTION 10.12. Appointments of Agents. The Company initially appoints
the Trustee as Paying Agent and Registrar and custodian with respect to any
Global Notes (as defined in the Appendix hereto).
SECTION 10.13. Qualification of Indenture. The Company shall qualify
this Indenture under the Trust Indenture Act in accordance with the terms and
conditions of the Registration Rights Agreement and shall pay all reasonable
costs and expenses (including reasonable attorneys' fees for the Company, the
Trustee and the Holders) incurred in connection therewith, including, but not
limited to, costs and expenses of qualification of this Indenture and the Notes
and printing this Indenture and the Notes. The Trustee shall be entitled to
receive from the Company any such Officers' Certificates, Opinions of Counsel or
other documentation as it may reasonably request in connection with any such
qualification of this Indenture under the Trust Indenture Act.
SECTION 10.14. Table of Contents; Headings. The table of contents,
cross-reference sheet and headings of the Articles and Sections of this
Indenture have been inserted for convenience of reference only, are not intended
to be considered a part hereof and shall not modify or restrict any of the terms
or provisions hereof.
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IN WITNESS WHEREOF, the parties have caused this Indenture to be duly
executed as of the date first written above.
THE VALSPAR CORPORATION
By /s/ Xxxx X. Xxxxxxx
-----------------------------
Name: Xxxx X. Xxxxxxx
Title: Executive Vice President
& Chief Financial Officer
THE BANK OF NEW YORK TRUST
COMPANY, N.A.
as Trustee
By /s/ Xxxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxxx
Title:
EXHIBIT A
[FORM OF FACE OF INITIAL NOTE]
THE VALSPAR CORPORATION
5.100% NOTES DUE 2015
No. [R-1][S-1] Principal Amount $______________
(subject to adjustment as reflected in
the Schedule of Increases and Decreases
in Global Note attached hereto)
CUSIP NO. [If Rule 144A Notes: 920355 AB 0]
[If Reg. S Notes: U9118P AA 9]
ISIN NO. [If Rule 144A Notes: US920355AB07]
[If Reg. S Notes: USU9118PAA94]
THE VALSPAR CORPORATION, a Delaware corporation, for value received,
promises to pay to _____________, or registered assigns, the principal sum of
____________ Dollars (subject to adjustment as reflected in the Schedule of
Increases and Decreases in Global Note attached hereto) on August 1, 2015.
Interest Payment Dates: August 1 and February 1 of each year,
commencing on [February 1, 2006] [first interest payment date relating to any
Additional Notes].
Record Dates: July 15 and January 15 of each year.
Additional provisions of this Note are set forth on the other side of
this Note.
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IN WITNESS WHEREOF, THE VALSPAR CORPORATION has caused this Note to be
duly executed.
Dated:________ ___, 20__
THE VALSPAR CORPORATION
By
---------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
This is one of the Notes referred
to in the within-mentioned Indenture.
THE BANK OF NEW YORK TRUST COMPANY, N.A.,
as Trustee
By
---------------------------
Authorized Officer
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[FORM OF REVERSE SIDE OF INITIAL NOTE]
[Reverse of Note]
5.100% Notes due 2015
1. Interest
THE VALSPAR CORPORATION, a Delaware corporation (together with
its successors and assigns under the Indenture hereinafter referred to, being
herein called the "Company"), promises to pay interest on the principal amount
of this Note at the rate of 5.100% per annum; provided that, upon the occurrence
or failure to occur of certain events specified in the Registration Rights
Agreement, the Company shall, subject to the terms and conditions set forth in
the Registration Rights Agreement, pay additional interest on the principal
amount of this Note at a rate of 0.25% per annum for the first 90-day period (or
portion thereof) after such event occurs or fails to occur, which rate shall be
increased by 0.25% per annum at the beginning of the subsequent 90-day period
and continue thereafter so long as such event continues or fails to occur, as
the case may be; provided the maximum aggregate increase in the rate of interest
in respect of this Note shall in no event exceed 0.50% per annum. Such
additional interest shall be payable in addition to any other interest payable
from time to time with respect to this Note.
The Company shall pay interest semiannually on August 1 and
February 1 of each year (each such date, an "Interest Payment Date"), commencing
on [February 1, 2006] [first interest payment date relating to any Additional
Notes]. Interest on the Notes shall accrue from [July 15, 2005] [date of
issuance of any Additional Notes], or from the most recent date to which
interest has been paid on the Notes. Interest shall be computed on the basis of
a 360-day year comprised of twelve 30-day months.
2. Method of Payment
By no later than 10:00 a.m. (New York City time) on the date
on which any principal of or interest on any Note is due and payable, the
Company shall irrevocably deposit with the Trustee or the Paying Agent money
sufficient to pay such principal and/or interest. The Company shall pay interest
(except defaulted interest) to the Persons who are registered Holders of Notes
at the close of business on the July 15 or January 15 next preceding the
interest payment date even if Notes are cancelled, repurchased or redeemed after
the record date and on or before the interest payment date. Holders must
surrender Notes to a Paying Agent to collect principal payments. The Company
shall pay principal and interest in money of the United States that at the time
of payment is legal tender for payment of public and private debts. Payments in
respect of Notes represented by a Global Note (including principal, premium, if
any, and interest) shall be made by the transfer of immediately available funds
to the accounts specified by The Depository Trust Company. The Company shall
make all payments in respect of a Definitive Note (including principal, premium,
if any, and interest) by mailing a check to the registered address of each
Holder thereof or by wire transfer to an account located in the United States
maintained by the payee in accordance with the requirements set forth in the
Indenture.
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3. Paying Agent and Registrar
The Bank of New York Trust Company, N.A., a national banking
association (the "Trustee"), shall initially act as Paying Agent and Registrar.
The Company may appoint and change any Paying Agent or Registrar without notice
to any Noteholder. The Company or any of its domestically organized wholly owned
Subsidiaries may act as Paying Agent.
4. Indenture
The Company issued the Notes under an Indenture dated as of
July 15, 2005 (as it may be amended or supplemented from time to time in
accordance with the terms thereof, the "Indenture"), between the Company and the
Trustee. The terms of the Notes include those stated in the Indenture and those
made part of the Indenture by reference to the Trust Indenture Act of 1939 (15
U.S.C. xx.xx. 77aaa-77bbbb) as in effect on the date of the Indenture (the
"Trust Indenture Act"). Capitalized terms used herein and not defined herein
have the meanings ascribed thereto in the Indenture. The Notes are subject to
all such terms, and Noteholders are referred to the Indenture and the Trust
Indenture Act for a statement of those terms. To the extent any provision of
this Note conflicts with the express provisions of the Indenture, the provisions
of the Indenture shall govern and be controlling.
The Notes are senior unsecured obligations of the Company. The
Note is one of the Initial Notes referred to in the Indenture. The Notes include
the Initial Notes issued on the Issue Date, any Additional Notes issued in
accordance with Section 2.15 of the Indenture and the Exchange Notes issued in
exchange for the Initial Notes or Additional Notes pursuant to the Indenture.
The Initial Notes, any Additional Notes and the Exchange Notes are treated as a
single class of securities under the Indenture. The Indenture imposes certain
limitations on the ability of the Company and its Subsidiaries to create liens,
enter into sale and lease-back transactions and enter into mergers and
consolidations.
5. Optional Redemption
The Notes shall be redeemable, in whole or in part, at any
time and from time to time, at the option of the Company, at a redemption price
equal to the greater of (i) 100% of the principal amount of such Notes and (ii)
the sum of the present values of the remaining scheduled payments of principal
and interest thereon (exclusive of interest accrued to the date of redemption)
discounted to the redemption date on a semiannual basis (assuming a 360-day year
comprised of twelve 30-day months) at the Treasury Rate plus 15 basis points
(the "Make-Whole Amount"), plus accrued interest thereon to the redemption date.
"Comparable Treasury Issue" means the U.S. Treasury security
or securities selected by an Independent Investment Banker 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 a comparable
maturity to the remaining term of the Notes to be redeemed.
"Comparable Treasury Price" means, with respect to any
redemption date for the Notes, (a) the average of the Reference Treasury Dealer
Quotations for such redemption date, after excluding the highest and lowest of
such Reference Treasury Dealer Quotations or (b) if the
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Company obtains fewer than four such Reference Treasury Dealer Quotations, the
average of all such Reference Treasury Dealer Quotations.
"Independent Investment Banker" means one of the Reference
Treasury Dealers appointed by the Company.
"Reference Treasury Dealer" means each of Banc of America
Securities LLC, Barclays Capital Inc. or their respective affiliates which are
primary U.S. government securities dealers, and their respective successors, and
two other firms which are primary U.S. government securities dealers that the
Company selects; provided that if any of the foregoing shall cease to be a
primary U.S. government securities dealer in The City of New York, the Company
shall substitute therefor another such primary U.S. government securities
dealer.
"Reference Treasury Dealer Quotation" means, with respect to
each Reference Treasury Dealer and any redemption date, the average, as
determined by the Company, 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 Company by such Reference Treasury Dealer as of 3:30
p.m., New York City time, on the third Business Day preceding such redemption
date.
"Treasury Rate" means, with respect to any redemption date for
the Notes, the rate per annum equal to the semiannual equivalent yield to
maturity or interpolated (on a day-count basis) 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.
Except as set forth above, the Notes shall not be redeemable
by the Company prior to maturity.
The Notes shall not be entitled to the benefit of any sinking
fund.
6. Notice of Redemption
Notice of redemption shall be mailed at least 30 days but not
more than 60 days before the redemption date by first-class mail to each Holder
of Notes to be redeemed at his registered address. Notes in denominations of
principal amount larger than $5,000 may be redeemed in part but only in integral
multiples of $1,000 in excess thereof; provided that Regulation S Notes shall
have a minimum denomination of $100,000. If money sufficient to pay the
redemption price of and accrued and unpaid interest on all Notes (or portions
thereof) to be redeemed on the redemption date is deposited with the Paying
Agent on or before 11:00 a.m. (New York City time) on the redemption date and
certain other conditions are satisfied, on and after such date interest ceases
to accrue on such Notes (or such portions thereof) called for redemption.
7. Registration Rights
The Company is party to a Registration Rights Agreement, dated
as of July 15, 2005, among the Company, Banc of America Securities LLC and
Barclays Capital Inc., pursuant to which it is obligated to pay Additional
Interest (as defined therein) upon the occurrence of certain events specified in
the Registration Rights Agreement.
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8. Denominations; Transfer; Exchange
The Notes are in fully registered form without coupons in
denominations of principal amount of $5,000 and integral multiples of $1,000 in
excess thereof; provided that Regulation S Notes shall have a minimum
denomination of $100,000 and any integral multiple of $1,000 in excess thereof.
A Holder may register, transfer or exchange Notes in accordance with the
Indenture. The Registrar may require a Holder, among other things, to furnish
appropriate endorsements or transfer documents and to pay any taxes and fees
required by law or permitted by the Indenture. The Registrar need not register
the transfer of or exchange any Notes selected for redemption (except, in the
case of a Note to be redeemed in part, the portion of the Note not to be
redeemed) for a period beginning 15 days before the mailing of a notice of
redemption of Notes to be redeemed and ending on the date of such mailing.
9. Persons Deemed Owners
The registered holder of this Note may be treated as the owner
of it for all purposes.
10. Unclaimed Money
If money for the payment of principal or interest remains
unclaimed for two years after the date of payment of principal and interest, the
Trustee or Paying Agent shall pay the money back to the Company at its request.
After any such payment, Holders entitled to the money must look only to the
Company and not to the Trustee for payment.
11. Defeasance
Subject to certain conditions set forth in the Indenture, the
Company at any time may terminate some or all of its obligations under the Notes
and the Indenture if the Company deposits with the Trustee money or U.S.
Government Obligations for the payment of principal of and interest on the Notes
to redemption or maturity, as the case may be.
12. Amendment, Waiver
Subject to certain exceptions set forth in the Indenture, (i)
the Indenture or the Notes may be amended with the written consent of the
Holders of at least a majority in principal amount of the outstanding Notes and
(ii) any default or noncompliance with any provision of the Indenture or the
Notes may be waived with the written consent of the Holders of a majority in
principal amount of the outstanding Notes. However, the Indenture requires the
consent of each Noteholder that would be affected for certain specified
amendments or modifications of the Indenture and the Notes. Subject to certain
exceptions set forth in the Indenture, without the consent of any Noteholder,
the Company and the Trustee may amend the Indenture or the Notes to cure any
ambiguity, omission, defect or inconsistency, or to comply with Article V of the
Indenture, or to add any additional Events of Default, or to add additional
covenants of or surrender rights and powers conferred on the Company, or to add
additional guarantees for the benefit of the Noteholders, or to secure the Notes
pursuant to the terms of the Indenture, or to add or appoint a successor or
separate trustee or other agent, or to provide for the issuance of the Exchange
Notes, or to provide for the issuance of any Additional Notes, or to comply with
any requirements in connection with qualifying the Indenture under the Trust
Indenture Act, or to
A-6
comply with the rules of any securities depositary, or to change any other
provision if the change does not adversely affect the interests of any
Noteholder in any material respect.
13. Defaults and Remedies
Under the Indenture, Events of Default include (i) default for
30 days in payment of interest on the Notes; (ii) default in payment of
principal on the Notes at maturity, upon optional redemption, upon declaration
or otherwise; (iii) failure by the Company to comply with any covenant or
agreement in the Indenture or the Notes, subject to notice and lapse of time;
(iv) default in respect of other Debt of the Company or any Significant
Subsidiary with an aggregate principal amount then outstanding in excess of
$10,000,000, which results in the acceleration of such Debt, subject to certain
conditions; and (v) certain events of bankruptcy or insolvency involving the
Company or any Significant Subsidiary.
If an Event of Default occurs and is continuing, the Trustee
or the Holders of at least 25% in aggregate principal amount of the Notes may
declare all the Notes to be due and payable immediately. Certain events of
bankruptcy or insolvency involving the Company are Events of Default which shall
result in the Notes being due and payable immediately upon the occurrence of
such Events of Default.
Noteholders may not enforce the Indenture or the Notes except
as provided in the Indenture. The Trustee may refuse to enforce the Indenture or
the Notes unless it receives indemnity or security reasonably satisfactory to
it. Subject to certain limitations, Holders of a majority in principal amount of
the Notes may direct the Trustee in its exercise of any trust or power. The
Trustee may withhold from Noteholders notice of any continuing Default or Event
of Default (except a Default or Event of Default in payment of principal or
interest) if it in good faith determines that withholding notice is not opposed
to their interest.
14. Trustee Dealings with the Company
Subject to certain limitations set forth in the Indenture, the
Trustee under the Indenture, in its individual or any other capacity, may become
the owner or pledgee of Notes and may otherwise deal with and collect
obligations owed to it by the Company and may otherwise deal with the Company
with the same rights it would have if it were not Trustee.
15. No Recourse Against Others
A director, officer, employee or stockholder of the Company,
shall not have any liability for any obligations of the Company under the Notes,
the Indenture or the Registration Rights Agreement or for any claim based on, in
respect of or by reason of such obligations or their creation. By accepting a
Note, each Noteholder waives and releases all such liability. The waiver and
release are part of the consideration for the issue of the Notes.
16. Authentication
This Note shall not be valid until an authorized signatory of
the Trustee (or an authenticating agent acting on its behalf) manually signs the
certificate of authentication on the other side of this Note.
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17. Abbreviations
Customary abbreviations may be used in the name of a
Noteholder or an assignee, such as TEN COM (tenants in common), TEN ENT (tenants
by the entirety), JT TEN (joint tenants with rights of survivorship and not as
tenants in common), CUST (custodian) and U/G/M/A (Uniform Gift to Minors Act).
18. CUSIP and ISIN Numbers
The Company has caused CUSIP and ISIN numbers and/or other
similar numbers to be printed on the Notes and has directed the Trustee to use
CUSIP and ISIN numbers and/or other similar numbers in notices of redemption as
a convenience to Noteholders. No representation is made as to the accuracy of
such numbers either as printed on the Notes or as contained in any notice of
redemption and reliance may be placed only on the other identification numbers
placed thereon.
19. Governing Law
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK.
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ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to
(Print or type assignee's name, address and zip code)
(Insert assignee's Social Security or Tax I.D. No.)
and irrevocably appoint as agent to transfer this Note
on the books of the Company. The agent may substitute another to act for him.
________________________________________________________________________________
Date: ____________________ Your Signature: ___________________
Signature Guarantee: ______________________________
(Signature must be guaranteed by a participant in a recognized Signature
Guarantee Medallion Program or other signature guarantor program reasonably
acceptable to the Trustee)
Sign exactly as your name appears on the other side of this Note.
In connection with any transfer or exchange of any of the certificated Notes
evidenced by this certificate occurring prior to the date that is two years
after the later of the date of original issuance of such Notes and the last
date, if any, on which such Notes were owned by the Company or any Affiliate of
the Company, the undersigned confirms that such Notes are being transferred:
CHECK ONE BOX BELOW:
(1) [_] to the Company or one of its Subsidiaries; or
(2) [_] for so long as the Notes are eligible for resale pursuant to
Rule 144A under the Securities Act, to a person it reasonably
believes is a "Qualified Institutional Buyer" as defined in
Rule 144A under the Securities Act that purchases for its own
account or for the account of a Qualified Institutional Buyer
to whom notice is given that the transfer is being made in
reliance on Rule 144A; or
(3) [_] pursuant to the offers and sales to non-U.S. persons that
occur outside the United States within the meaning of
Regulation S under the Securities Act in a minimum
denomination of $100,000 principal amount; or
(4) [_] pursuant to Rule 144 under the Securities Act or any other
available exemption from the registration requirements of the
Securities Act; or
(5) [_] pursuant to a registration statement that has been declared
effective under the Securities Act.
A-9
Unless one of the boxes is checked, the Trustee may refuse to register any of
the certificated Notes evidenced by this certificate in the name of any Person
other than the registered holder thereof; provided that if box (4) is checked,
the Trustee may require, prior to registering any such transfer of the Notes,
such legal opinions, certifications and other information as the Company has
reasonably requested to confirm that such transfer is being made in conformity
with Rule 144.
_____________________________________
Signature
Signature Guarantee:
_______________________________ _____________________________________
Signature
(Signature must be guaranteed by
a participant in a recognized
Signature Guarantee Medallion
Program or other signature
guarantor program reasonably
acceptable to the Trustee)
__________________________________________________________________
A-10
TO BE COMPLETED BY PURCHASER IF BOX (2) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this
certificated Note for its own account or an account with respect to which it
exercises sole investment discretion and that it and any such account is a
"qualified institutional buyer" within the meaning of Rule 144A under the
Securities Act of 1933, and is aware that the sale to it is being made in
reliance on Rule 144A and acknowledges that it has received such information
regarding the Company as the undersigned has requested pursuant to Rule 144A or
has determined not to request such information and that it is aware that the
transferor is relying upon the undersigned's foregoing representations in order
to claim the exemption from registration provided by Rule 144A.
Dated: _________________________ _____________________________________
NOTICE: To be executed by an
executive officer
Signature Guarantee:
________________________________ _____________________________________
Signature
(Signature must be guaranteed
by a participant in a recognized
Signature Guarantee Medallion
Program or other signature
guarantor program reasonably
acceptable to the Trustee)
__________________________________________________________________
A-11
[TO BE ATTACHED TO GLOBAL SECURITIES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE
The following increases or decreases in this Global Note have been made:
Principal Amount of Signature of
Amount of decrease in Amount of increase in this Global Note authorized signatory
Date of Principal Amount of Principal Amount of following such of Trustee or
Exchange this Global Note this Global Note decrease or increase Securities Custodian
-------- --------------------- --------------------- -------------------- --------------------
A-12
EXHIBIT B
[FORM OF FACE OF EXCHANGE NOTE]
THE VALSPAR CORPORATION
5.100% NOTES DUE 2015
No. _____ Principal Amount $______________
(subject to adjustment as reflected in the
Schedule of Increases and Decreases in
Global Note attached hereto)
CUSIP NO. 000000 XX 0
XXXX XX. XX000000XX00
THE VALSPAR CORPORATION, a Delaware corporation, for value received,
promises to pay to _______________, or registered assigns, the principal sum of
_____________ Dollars (subject to adjustment as reflected in the Schedule of
Increases and Decreases in Global Note attached hereto) on August 1, 2015.
Interest Payment Dates: August 1 and February 1 of each year,
commencing on [February 1, 2006] [first interest payment date relating to any
Additional Notes].
Record Dates: May 15 and November 15 of each year.
Additional provisions of this Note are set forth on the other side of
this Note.
B-1
IN WITNESS WHEREOF, THE VALSPAR CORPORATION has caused this Note to be
duly executed.
Dated:________ ___, 20__
THE VALSPAR CORPORATION
By
---------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
This is one of the Notes referred
to in the within-mentioned Indenture.
THE BANK OF NEW YORK TRUST COMPANY, N.A.,
as Trustee
By
---------------------------
Authorized Officer
B-2
[FORM OF REVERSE SIDE OF EXCHANGE NOTE]
[Reverse of Note]
5.100% Notes due 2015
1. Interest
THE VALSPAR CORPORATION, a Delaware corporation (together with
its successors and assigns under the Indenture hereinafter referred to, being
herein called the "Company"), promises to pay interest on the principal amount
of this Note at the rate of 5% per annum.
The Company shall pay interest semiannually on August 1 and
February 1 of each year (each such date, an "Interest Payment Date"), commencing
on [February 1, 2006][first interest payment date relating to any Additional
Notes][first interest payment date following completion of the Exchange Offer
referred to in the Registration Rights Agreement]. Interest on the Notes shall
accrue from [July 15, 2005] [date of issuance of any Additional Notes][date of
interest payment date immediately preceding completion of Exchange Offer
referred to in the Registration Rights Agreement], or from the most recent date
to which interest has been paid on the Notes. Interest shall be computed on the
basis of a 360-day year comprised of twelve 30-day months.
2. Method of Payment
By no later than 10:00 a.m. (New York City time) on the date
on which any principal of or interest on any Note is due and payable, the
Company shall irrevocably deposit with the Trustee or the Paying Agent money
sufficient to pay such principal and/or interest. The Company shall pay interest
(except defaulted interest) to the Persons who are registered Holders of Notes
at the close of business on the July 15 or January 15 next preceding the
Interest Payment Date even if Notes are cancelled, repurchased or redeemed after
the record date and on or before the Interest Payment Date. Holders must
surrender Notes to a Paying Agent to collect principal payments. The Company
shall pay principal and interest in money of the United States that at the time
of payment is legal tender for payment of public and private debts. Payments in
respect of Notes represented by a Global Note (including principal, premium, if
any, and interest) shall be made by the transfer of immediately available funds
to the accounts specified by The Depository Trust Company. The Company shall
make all payments in respect of a Definitive Note (including principal, premium,
if any, and interest) by mailing a check to the registered address of each
Holder thereof or by wire transfer to an account located in the United States
maintained by the payee in accordance with the requirements set forth in the
Indenture.
3. Paying Agent and Registrar
The Bank of New York Trust Company, N.A., a national banking
association (the "Trustee"), shall initially act as Paying Agent and Registrar.
The Company may appoint and change any Paying Agent or Registrar without notice
to any Noteholder. The Company or any of its domestically organized wholly owned
Subsidiaries may act as Paying Agent.
B-3
4. Indenture
The Company issued the Notes under an Indenture dated as of
July 15, 2005 (as it may be amended or supplemented from time to time in
accordance with the terms thereof, the "Indenture"), between the Company and the
Trustee. The terms of the Notes include those stated in the Indenture and those
made part of the Indenture by reference to the Trust Indenture Act of 1939 (15
U.S.C. xx.xx. 77aaa-77bbbb) as in effect on the date of the Indenture (the
"Trust Indenture Act"). Capitalized terms used herein and not defined herein
have the meanings ascribed thereto in the Indenture. The Notes are subject to
all such terms, and Noteholders are referred to the Indenture and the Trust
Indenture Act for a statement of those terms. To the extent any provision of
this Note conflicts with the express provisions of the Indenture, the provisions
of the Indenture shall govern and be controlling.
The Notes are senior unsecured obligations of the Company. The
Note is one of the Exchange Notes referred to in the Indenture. The Notes
include the Initial Notes issued on the Issue Date, any Additional Notes issued
in accordance with Section 2.15 of the Indenture and any Exchange Notes issued
in exchange for the Initial Notes pursuant to the Indenture and the Registration
Rights Agreement. The Initial Notes, any Additional Notes and the Exchange Notes
are treated as a single class of securities under the Indenture. The Indenture
imposes certain limitations on the ability of the Company and its subsidiaries
to create liens, enter into sale and lease-back transactions and enter into
mergers and consolidations.
5. Optional Redemption
The Notes shall be redeemable, in whole or in part, at any
time and from time to time, at the option of the Company, at a redemption price
equal to the greater of (i) 100% of the principal amount of such Notes and (ii)
the sum of the present values of the remaining scheduled payments of principal
and interest thereon (exclusive of interest accrued to the date of redemption)
discounted to the redemption date on a semiannual basis (assuming a 360-day year
comprised of twelve 30-day months) at the Treasury Rate plus 15 basis points
(the "Make-Whole Amount"), plus accrued interest thereon to the redemption date.
"Comparable Treasury Issue" means the U.S. Treasury security
or securities selected by an Independent Investment Banker as having an actual
or interpolated 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 a comparable maturity to the remaining term of the Notes to be redeemed.
"Comparable Treasury Price" means, with respect to any
redemption date for the Notes, (a) the average of the Reference Treasury Dealer
Quotations for such redemption date, after excluding the highest and lowest of
such Reference Treasury Dealer Quotations or (b) if the Company obtains fewer
than four such Reference Treasury Dealer Quotations, the average of all such
Reference Treasury Dealer Quotations.
"Independent Investment Banker" means one of the Reference
Treasury Dealers appointed by the Company.
B-4
"Reference Treasury Dealer" means each of Banc of America
Securities LLC and Barclays Capital Inc. or their respective affiliates which
are primary U.S. government securities dealers, and their respective successors,
and two other firms which are primary U.S. government securities dealers that
the Company selects; provided that if any of the foregoing shall cease to be a
primary U.S. government securities dealer in The City of New York, the Company
shall substitute therefor another such primary U.S. government securities
dealer.
"Reference Treasury Dealer Quotation" means, with respect to
each Reference Treasury Dealer and any redemption date, the average, as
determined by the Company, 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 Company by such Reference Treasury Dealer as of 3:30
p.m., New York City time, on the third Business Day preceding such redemption
date.
"Treasury Rate" means, with respect to any redemption date for
the Notes, the rate per annum equal to the semiannual equivalent yield to
maturity or interpolated (on a day-count basis) 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.
Except as set forth above, the Notes shall not be redeemable
by the Company prior to maturity
The Notes shall not be entitled to the benefit of any sinking
fund.
6. Notice of Redemption
Notice of redemption shall be mailed at least 30 days but not
more than 60 days before the redemption date by first-class mail to each Holder
of Notes to be redeemed at his registered address. Notes in denominations of
principal amount larger than $5,000 may be redeemed in part but only in integral
multiples of $1,000 in excess thereof; provided that Regulation S Notes shall
have a minimum denomination of $100,000. If money sufficient to pay the
redemption price of and accrued and unpaid interest on all Notes (or portions
thereof) to be redeemed on the redemption date is deposited with the Paying
Agent on or before 11:00 a.m. (New York City time) on the redemption date and
certain other conditions are satisfied, on and after such date interest ceases
to accrue on such Notes (or such portions thereof) called for redemption.
7. Denominations; Transfer; Exchange
The Notes are in fully registered form without coupons in
denominations of principal amount of $5,000 and integral multiples of $1,000 in
excess thereof; provided that Regulation S Notes shall have a minimum
denomination of $100,000 and any integral multiple of $1,000 in excess thereof..
A Holder may register transfer or exchange Notes in accordance with the
Indenture. The Registrar may require a Holder, among other things, to furnish
appropriate endorsements or transfer documents and to pay any taxes and fees
required by law or permitted by the Indenture. The Registrar need not register
the transfer of or exchange any Notes selected for redemption (except, in the
case of a Note to be redeemed in part, the portion
B-5
of the Note not to be redeemed) for a period beginning 15 days before the
mailing of a notice of redemption of Notes to be redeemed and ending on the date
of such mailing.
8. Persons Deemed Owners
The registered holder of this Note may be treated as the owner
of it for all purposes.
9. Unclaimed Money
If money for the payment of principal or interest remains
unclaimed for two years after the date of payment of principal and interest, the
Trustee or Paying Agent shall pay the money back to the Company at its request.
After any such payment, Holders entitled to the money must look only to the
Company and not to the Trustee for payment.
10. Defeasance
Subject to certain conditions set forth in the Indenture, the
Company at any time may terminate some or all of its obligations under the Notes
and the Indenture if the Company deposits with the Trustee money or U.S.
Government Obligations for the payment of principal of and interest on the Notes
to redemption or maturity, as the case may be.
11. Amendment, Waiver
Subject to certain exceptions set forth in the Indenture, (i)
the Indenture or the Notes may be amended with the written consent of the
Holders of at least a majority in principal amount of the outstanding Notes and
(ii) any default or noncompliance with any provision of the Indenture or the
Notes may be waived with the written consent of the Holders of a majority in
principal amount of the outstanding Notes. However, the Indenture requires the
consent of each Noteholder that would be affected for certain specified
amendments or modifications of the Indenture and the Notes. Subject to certain
exceptions set forth in the Indenture, without the consent of any Noteholder,
the Company and the Trustee may amend the Indenture or the Notes to cure any
ambiguity, omission, defect or inconsistency, or to comply with Article V of the
Indenture, or to add any additional Events of Default, or to add additional
covenants of or surrender rights and powers conferred on the Company, or to add
additional guarantees for the benefit of the Noteholders, or to secure the Notes
pursuant to the terms of the Indenture, or to add or appoint a successor or
separate trustee or other agent, or to provide for the issuance of the Exchange
Notes, or to provide for the issuance of any Additional Notes, or to comply with
any requirements in connection with qualifying the Indenture under the Trust
Indenture Act, or to comply with the rules of any securities depositary, or to
change any other provision if the change does not adversely affect the interests
of any Noteholder in any material respect.
12. Defaults and Remedies
Under the Indenture, Events of Default include (i) default for
30 days in payment of interest on the Notes; (ii) default in payment of
principal on the Notes at maturity, upon optional redemption, upon declaration
or otherwise; (iii) failure by the Company to comply with any covenant or
agreement in the Indenture or the Notes, subject to notice and lapse of time;
(iv) default in respect of other Debt of the Company or any Significant
Subsidiary with an aggregate
B-6
principal amount then outstanding in excess of $10,000,000, which results in the
acceleration of such Debt, subject to certain conditions; and (v) certain events
of bankruptcy or insolvency involving the Company or any Significant Subsidiary.
If an Event of Default occurs and is continuing, the Trustee
or the Holders of at least 25% in aggregate principal amount of the Notes may
declare all the Notes to be due and payable immediately. Certain events of
bankruptcy or insolvency involving the Company are Events of Default which shall
result in the Notes being due and payable immediately upon the occurrence of
such Events of Default.
Noteholders may not enforce the Indenture or the Notes except
as provided in the Indenture. The Trustee may refuse to enforce the Indenture or
the Notes unless it receives indemnity or security reasonably satisfactory to
it. Subject to certain limitations, Holders of a majority in principal amount of
the Notes may direct the Trustee in its exercise of any trust or power. The
Trustee may withhold from Noteholders notice of any continuing Default or Event
of Default (except a Default or Event of Default in payment of principal or
interest) if it in good faith determines that withholding notice is not opposed
to their interest.
13. Trustee Dealings with the Company
Subject to certain limitations set forth in the Indenture, the
Trustee under the Indenture, in its individual or any other capacity, may become
the owner or pledgee of Notes and may otherwise deal with and collect
obligations owed to it by the Company and may otherwise deal with the Company
with the same rights it would have if it were not Trustee.
14. No Recourse Against Others
A director, officer, employee or stockholder of the Company,
shall not have any liability for any obligations of the Company or under the
Notes, the Indenture or the Registration Rights Agreement or for any claim based
on, in respect of or by reason of such obligations or their creation. By
accepting a Note, each Noteholder waives and releases all such liability. The
waiver and release are part of the consideration for the issue of the Notes.
15. Authentication
This Note shall not be valid until an authorized signatory of
the Trustee (or an authenticating agent acting on its behalf) manually signs the
certificate of authentication on the other side of this Note.
16. Abbreviations
Customary abbreviations may be used in the name of a
Noteholder or an assignee, such as TEN COM (tenants in common), TEN ENT (tenants
by the entirety), JT TEN (joint tenants with rights of survivorship and not as
tenants in common), CUST (custodian) and U/G/M/A (Uniform Gift to Minors Act).
B-7
17. CUSIP and ISIN Numbers
The Company has caused CUSIP and ISIN numbers and/or other
similar numbers to be printed on the Notes and has directed the Trustee to use
CUSIP and ISIN numbers and/or other similar numbers in notices of redemption as
a convenience to Noteholders. No representation is made as to the accuracy of
such numbers either as printed on the Notes or as contained in any notice of
redemption and reliance may be placed only on the other identification numbers
placed thereon.
18. Governing Law
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK.
B-8
ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to
(Print or type assignee's name, address and zip code)
(Insert assignee's Social Security or Tax I.D. No.)
and irrevocably appoint as agent to transfer this Note
on the books of the Company. The agent may substitute another to act for him.
________________________________________________________________________________
Date: ____________________ Your Signature: ______________________
Signature Guarantee: ______________________________
(Signature must be guaranteed by a participant in
a recognized Signature Guarantee Medallion Program
or other signature guarantor program reasonably
acceptable to the Trustee)
________________________________________________________________________________
Sign exactly as your name appears on the other side of this Note.
B-9
[TO BE ATTACHED TO GLOBAL SECURITIES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE
The following increases or decreases in this Global Note have been made:
Principal Amount of Signature of
Amount of decrease in Amount of increase in this Global Note authorized signatory
Date of Principal Amount of Principal Amount of following such of Trustee or
Exchange this Global Note this Global Note decrease or increase Securities Custodian
-------- --------------------- --------------------- -------------------- --------------------
B-10
EXHIBIT C - Form of
Regulation S Certificate
REGULATION S CERTIFICATE
(For transfers pursuant to Sections
2.6(a), 2.6(c) and 2.6(e) of the Indenture)
To: The Bank of New York Trust Company, N.A.,
as Trustee
Re: THE VALSPAR CORPORATION - 5.100% Notes
due 2015 (the "Notes")
Reference is made to the Indenture, dated as of July 15, 2005 (the
"Indenture"), between THE VALSPAR CORPORATION (the "Company") and The Bank of
New York Trust Company, N.A., as Trustee. Terms used herein and defined in the
Indenture or in Regulation S or Rule 144 under the U.S. Securities Act of 1933,
as amended (the "Securities Act") are used herein as so defined.
This certificate relates to U.S.$________ principal amount of Notes,
which are evidenced by the following certificate(s) (the "Specified Notes"):
CUSIP No(s). ___________________________
CERTIFICATE No(s). _____________________
The person in whose name this certificate is executed below (the "undersigned")
hereby certifies that either (i) it is the sole beneficial owner of the
Specified Notes or (ii) it is acting on behalf of all the beneficial owners of
the Specified Notes and is duly authorized by them to do so. Such beneficial
owner or owners are referred to herein collectively as the "Owner". If the
Specified Notes are represented by a Global Note, they are held through DTC or
an Agent Member in the name of the undersigned, as or on behalf of the Owner. If
the Specified Notes are not represented by a Global Note, they are registered in
the name of the undersigned, as or on behalf of the Owner.
The Owner has requested that the Specified Notes be transferred to a
person (the "Transferee") who shall take delivery in the form of a Regulation S
Note. In connection with such transfer, the Owner hereby certifies that, unless
such transfer is being effected pursuant to an effective registration statement
under the Securities Act, it is being effected in accordance with Rule 903 or
904 or Rule 144 under the Securities Act and with all applicable securities laws
of the states of the United States and other jurisdictions. Accordingly, the
Owner hereby further certifies as follows:
1. Rule 903 or 904 Transfers. If the transfer is being effected in
accordance with Rule 903 or 904:
C-1
(a) the Owner is not a distributor of the Notes, an affiliate
of the Company or of any such distributor or a person acting on behalf
of any of the foregoing;
(b) the offer of the Specified Notes was not made to a person
in the United States;
(c) either:
(i) at the time the buy order was originated, the
Transferee was outside the United States or the Owner and any
person acting on its behalf reasonably believed that the
Transferee was outside the United States, or
(ii) the transaction is being executed in, on or
through the facilities of a designated offshore securities
market (as defined in Regulation S) and neither the Owner nor
any person acting on its behalf knows that the transaction has
been prearranged with a buyer in the United States;
(d) no directed selling efforts have been made in the United
States by or on behalf of the Owner or any affiliate thereof;
(e) if the Owner is a dealer in Notes or has received a
selling concession, fee or other remuneration in respect of the
Specified Notes, and the transfer is to occur during the Restricted
Period, then the requirements of Rule 904(c)(1) have been satisfied;
and
(f) the transaction is not part of a plan or scheme to evade
the registration requirements of the Securities Act.
2. Rule 144 Transfers. If the transfer is being effected pursuant to
Rule 144:
(a) the transfer is occurring after July 15, 2006 and is being
effected in accordance with the applicable amount, manner of sale and
notice requirements of Rule 144; or
(b) the transfer is occurring after July 15, 2007 and the
Owner is not, and during the preceding three months has not been, an
affiliate of the Company.
C-2
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company and the Initial Purchasers.
Dated: ------------------------------------
(Print the name of the undersigned,
as such term is defined in the
second paragraph of this certificate)
By:
---------------------------------
Name:
Title:
(If the undersigned is a corporation,
partnership or fiduciary, the title
of the person signing on behalf of
the undersigned must be stated)
C-3
EXHIBIT D - Form of
Rule 144A Certificate
RULE 144A CERTIFICATE
(For transfers pursuant to Sections
2.6(b), 2.6(c), 2.6(d) and 2.6(e) of the Indenture)
To: The Bank of New York Trust Company, N.A.,
as Trustee
Re: THE VALSPAR CORPORATION - 5.100% Notes
due 2015 (the "Notes")
Reference is made to the Indenture, dated as of July 15, 2005, (the
"Indenture"), between THE VALSPAR CORPORATION (the "Company") and The Bank of
New York Trust Company, N.A., as Trustee. Terms used herein and defined in the
Indenture or in Regulation S or Rule 144 under the U.S. Securities Act of 1933,
as amended (the "Securities Act") are used herein as so defined.
This certificate relates to U.S.$________ principal amount of Notes,
which are evidenced by the following certificate(s) (the "Specified Notes"):
CUSIP No(s). __________________________
CERTIFICATE No(s). ____________________
The person in whose name this certificate is executed below (the "undersigned")
hereby certifies that either (i) it is the sole beneficial owner of the
Specified Notes or (ii) it is acting on behalf of all the beneficial owners of
the Specified Notes and is duly authorized by them to do so. Such beneficial
owner or owners are referred to herein collectively as the "Owner". If the
Specified Notes are represented by a Global Note, they are held through DTC or
an Agent Member in the name of the undersigned, as or on behalf of the Owner. If
the Specified Notes are not represented by a Global Note, they are registered in
the name of the Undersigned, as or on behalf of the Owner.
The Owner has requested that the Specified Notes be transferred to a
person (the "Transferee") who shall take delivery in the form of a Rule 144A
Note. In connection with such transfer, the Owner hereby certifies that, unless
such transfer is being effected pursuant to an effective registration statement
under the Securities Act, it is being effected in accordance with Rule 144A or
Rule 144 under the Securities Act and with all applicable securities laws of the
states of the United States and other jurisdictions. Accordingly, the Owner
hereby further certifies as:
1. Rule 144A Transfers. If the transfer is being effected in accordance
with Rule 144A:
(a) the Specified Notes are being transferred to a person that the
Owner and any person acting on its behalf reasonably believe is a "qualified
institutional buyer" within the meaning of Rule 144A, acquiring for its own
account or for the account of a qualified institutional buyer; and
D-1
(b) the Owner and any person acting on its behalf have taken reasonable
steps to ensure that the Transferee is aware that the Owner is relying on Rule
144A in connection with the transfer; and
2. Rule 144 Transfers. If the transfer is being effected pursuant to
Rule 144:
(a) the transfer is occurring after July 15, 2006 and is being effected
in accordance with the applicable amount, manner of sale and notice requirements
of Rule 144; or
(b) the transfer is occurring after July 15, 2007 and the Owner is not,
and during the preceding three months has not been, an affiliate of the Company.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company and the Initial Purchasers.
Dated: ------------------------------------
(Print the name of the undersigned,
as such term is defined in the second
paragraph of this certificate)
By:
--------------------------------
Name:
Title:
(If the undersigned is a corporation,
partnership or fiduciary, the title
of the person signing on behalf of
the undersigned must be stated)
D-2
EXHIBIT E - Form of
Incumbency Certificate
INCUMBENCY CERTIFICATE
The undersigned, ____________, being the ____________ of ____________
(the "Company") does hereby certify that the individuals listed below are
qualified and acting officers of the Company as set forth in the adjacent right
column opposite their respective names and the signatures appearing in the far
right column opposite the name of each such officer is a true specimen of the
genuine signature of such officer and such individuals have the authority to
execute documents to be delivered to, or upon the request of, The Bank of New
York Trust Company, N.A., as Trustee under the Indenture dated as of July 15,
2005, between the Company and The Bank of New York Trust Company, N.A., as
Trustee.
Name Title Signature
____________ ____________ ____________
____________ ____________ ____________
____________ ____________ ____________
IN WITNESS WHEREOF, the undersigned has duly executed and delivered
this Certificate as of the ____ day of ________, 20__.
------------------------------------
Name:
Title:
E-1
