Exhibit
4.2
____________________________________________________________________________
THE VALSPAR CORPORATION
$300,000,000 7.250% Notes due 2019
THIRD SUPPLEMENTAL INDENTURE
Dated as of June 19, 2009
to
Indenture Dated as of April 24, 2002
U.S. BANK NATIONAL ASSOCIATION
Series Trustee
and
THE BANK OF NEW YORK MELLON TRUST COMPANY,
N.A
(as successor to Bank One Trust Company,
N.A.)
Original Trustee
____________________________________________________________________________
THIRD SUPPLEMENTAL INDENTURE (this
“ Third Supplemental Indenture ”), dated as of
June 19, 2009, between THE VALSPAR CORPORATION, a Delaware
corporation (the “ Company ”), U.S. Bank
National Association, (the “ Series Trustee ”),
and The Bank of New York Mellon Trust Company, N.A. (as successor
to Bank One Trust Company, N.A.) (the “ Original
Trustee ,” and together with the Series Trustee, the
“ Trustee ”).
RECITALS
WHEREAS, the Company has heretofore
executed and delivered to the Original Trustee an Indenture dated
as of April 24, 2002 (the “ Existing Indenture ”
and, together with the First Supplemental Indenture dated as of
April 30, 2002, the Second Supplemental Indenture dated as of April
17, 2007 and this Third Supplemental Indenture, the “
Indenture ”) providing for the issuance by the Company
from time to time of its debt securities to be issued in one or
more series;
WHEREAS, the Company, in the
exercise of the power and authority conferred upon and reserved to
it under the provisions of the Existing Indenture and pursuant to
appropriate resolutions of the Board of Directors, has duly
determined to make, execute and deliver to the Series Trustee this
Third Supplemental Indenture to the Existing Indenture in order to
issue a new series of debt securities to be designated as the
“7.250% Notes due 2019” (the “ Notes
”), and to set forth the terms that will be applicable
thereto and the forms thereof;
WHEREAS, the Company has duly
determined to appoint U.S. Bank National Association as Series
Trustee, Security Registrar and Paying Agent under the Indenture
with respect to the Notes (but only with respect to the Notes) and
U.S. Bank National Association is willing to accept such
appointment with respect to the Notes;
WHEREAS, the Company is entering
into this Third Supplemental Indenture with the Original Trustee
and the Series Trustee to evidence and provide for the acceptance
of appointment thereunder by the Series Trustee with respect to the
Notes (but only with respect to the Notes), to add to or change any
of the provisions of the Existing Indenture as shall be necessary
to provide for or facilitate the administration of the trusts
thereunder by more than one Trustee, to make certain amendments to
the Existing Indenture pursuant to Section 901(2) of the Existing
Indenture to expressly permit the appointment of the Series Trustee
as Trustee for the Notes (but only with respect to the Notes), and
to make certain other amendments to the Existing
Indenture;
WHEREAS, the Company has requested
that the Original Trustee enter into this Third Supplemental
Indenture in connection with (i) the foregoing amendments and (ii)
the Company’s appointment of the Series Trustee with all of
the rights, powers, trusts, duties and obligations of Trustee,
Security Registrar and Paying Agent with respect to the Notes (but
only with respect to the Notes);
WHEREAS, Sections 201, 301 and 901
of the Existing Indenture provide, among other things, that the
Company and the Trustee may, without the consent of Holders, enter
into indentures supplemental to the Existing Indenture to provide
for specific terms applicable to any series of notes and to add to
the covenants of the Company for the benefit of the Holders of each
series of notes (and if such covenants are to be for the benefit of
less than all series of notes, stating that such covenants are
expressly being included solely for the benefit of such series);
and
WHEREAS, all things necessary to
make the Notes, when executed by the Company and authenticated and
delivered by the Series Trustee or any Authenticating Agent and
issued upon the terms and subject to the conditions set forth
hereinafter and in the Indenture against payment therefor, the
valid, binding and legal obligations of the Company and to make
this Third Supplemental Indenture a valid, binding and legal
agreement of the Company, have been done;
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NOW, THEREFORE, in consideration of
the premises and for other good and valuable consideration, the
sufficiency and adequacy of which are hereby acknowledged, the
parties hereto hereby agree as follows:
ARTICLE I
APPLICATION OF SUPPLEMENTAL
INDENTURE
AND CREATION OF
NOTES
Section 1.01 Application of this
Third Supplemental Indenture .
Notwithstanding any other provision
of this Third Supplemental Indenture, the provisions of this Third
Supplemental Indenture, including the covenants and Events of
Default set forth herein, are expressly and solely for the benefit
of Notes. The Notes constitute a series of notes as provided in
Section 301 of the Existing Indenture.
Section 1.02 Effect of this Third
Supplemental Indenture .
With respect to the Notes only, the
Existing Indenture shall be supplemented pursuant to Sections 201,
301 and 901 thereof to establish the terms of the Notes as set
forth in this Third Supplemental Indenture, including as
follows:
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(a)
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The definitions set forth in Article One of the
Existing Indenture shall be modified to the extent provided in
Article II of this Third Supplemental Indenture;
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(b)
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The forms and terms of the securities
representing the Notes required to be established pursuant to
Sections 201 and 301 of the Existing Indenture shall be established
in accordance with Sections 1.03, 1.04, 1.05 and 1.06 of this Third
Supplemental Indenture;
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(c)
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Section 501(1) of the Existing Indenture
regarding a certain event of default is deleted as contemplated by
Section 301(12) of the Existing Indenture and replaced in its
entirety by Section 5.01 of this Third Supplemental
Indenture.
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(d)
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The provisions of Article Ten of the Existing
Indenture regarding certain covenants of the Company shall be
supplemented and amended by the provisions of Article VI of
this Supplemental Indenture.
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(e)
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Section 901 of the Existing Indenture regarding
the entering into of supplemental indentures without the consent of
Holders shall be amended by inserting therein a new Section 901(8)
of the Existing Indenture (as set forth in Section 7.01 of this
Supplemental Indenture).
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(f)
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Section 901(6) of the Existing Indenture
regarding the appointment of a successor Trustee by entering into
of supplemental indentures without the consent of Holders shall be
amended and replaced in its entirety by Section 8.02 of this
Supplemental Indenture.
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Section 1.03 Designation and
Amount of Notes .
The Notes shall be known and
designated as the “7.250 Notes due 2019.” The initial
maximum aggregate principal amount of the Notes that may be
authenticated and delivered under this Third Supplemental Indenture
shall not exceed $300,000,000 except for Notes authenticated and
delivered upon registration or transfer of, or in exchange for, or
in lieu of, Notes pursuant to Sections 202, 304, 305, 306 or 905 of
the Existing Indenture (unless the issue of this series of Notes is
“reopened” pursuant to Section 901(8) of the Existing
Indenture (as set forth in Section 7.01 of this Third Supplemental
Indenture)) by issuing additional Notes of such series (the
“Additional Notes”), in an amount or amounts and
registered in the names of such Persons as shall be set forth in
any written order of the Company for the authentication and
delivery of the Notes pursuant to Section 303 of the Existing
Indenture.
Section 1.04 Terms; Form of
Security .
The Notes and the Additional Notes
shall together constitute one series for purposes of the Existing
Indenture and this Third Supplemental Indenture, including, without
limitation, waivers, amendments, redemptions and offers to
purchase. The Company shall issue any additional notes of a series
by adopting a Board Resolution in the manner set forth in
Section 301 of the Existing Indenture providing for the terms
of such issuance. Notwithstanding the foregoing, the Notes are
issuable in fully registered form as Global Notes (unless otherwise
permitted by Section 202 of the Existing Indenture) without coupons
and shall be in substantially the form of Exhibit A hereto.
The Notes are not issuable in bearer form. The terms and provisions
contained in the form of Note shall constitute, and are hereby
expressly made, a part of this Third Supplemental Indenture and the
Company, by its execution and delivery of this Third Supplemental
Indenture, expressly agrees to such terms and provisions and to be
bound thereto. Any of the Notes may have such letters, numbers or
other marks of identification and such notations, legends and
endorsements as the officers executing the same may approve
(execution thereof to be conclusive evidence of such approval) and
are not inconsistent with the provisions of the Indenture (and
which do not affect the rights, duties or immunities of the Series
Trustee), or as may be required to comply with any law or with any
rule or regulation made pursuant thereto or with any rule or
regulation of any securities exchange or automated quotation system
on which the Notes may be listed.
Section 1.05 Payment of Principal
and Interest .
(a) The
Notes shall mature, and the principal of the Notes shall be due and
payable in U.S. Dollars to the Holders thereof, together with
all accrued and unpaid interest thereon, on June 15, 2009 (the
Stated Maturity of principal of the Notes).
(b) The
Notes shall bear interest at 7.250% per annum, from and including
June 19, 2009, or from the most recent Interest Payment Date
(defined below) on which interest has been paid or provided for
until the principal thereof becomes due and payable, and on any
overdue principal and (to the extent that payment of such interest
is enforceable under applicable law) on any overdue installment of
interest at the same rate per annum. Interest shall be calculated
on the basis of a 360-day year comprised of twelve 30-day months.
Interest on the Notes shall be payable semi-annually in arrears in
U.S. Dollars on June 15 and December 15 of each year, commencing on
December 15, 2009 (each such date, an “ Interest Payment
Date ” for the purposes of the Notes under this Third
Supplemental Indenture). Payments of interest shall be made to the
Person in whose name a Note (or predecessor Note) is registered
(which shall initially be the Depositary) at the close of business
on the June 1 or December 1, as the case may be, next preceding
such Interest Payment Date (each such date, a “ Regular
Record Date ” for the purposes of the Notes under this
Third Supplemental Indenture).
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(c) For
so long as the Notes are represented by one or more Global Notes,
all payments of principal and interest shall be made by the Company
by wire transfer of immediately available funds in U.S. Dollars to
the Depositary or its nominee, as the case may be, as the
registered owner of the Global Notes representing such Notes. In
the event that definitive Notes shall have been issued, all
payments of principal and interest shall be made by the Company by
wire transfer of immediately available funds in U.S. Dollars to the
accounts of the registered Holders thereof; provided , that
the Company may elect to make such payments at the office of the
Paying Agent in The City of New York; and provided
further , that the Company may at its option pay interest by
check to the registered address of each Holder of a definitive
Note.
(d) The
Notes shall trade in the Depositary’s Same-Day Funds
Settlement System until Stated Maturity (or until they are subject
to acceleration pursuant to Article V of the Existing
Indenture) and secondary market trading activity in the Notes may
be required by the Depositary to settle in immediately available
funds.
(e) The
Notes are subject to redemption by the Company in whole or in part
in the manner described herein.
Section 1.06 Ranking
.
The Notes shall be general unsecured
obligations of the Company. The Notes shall rank pari passu
in right of payment with all unsecured and unsubordinated
indebtedness of the Company and senior in right of payment to all
subordinated indebtedness of the Company.
Section 1.07 Sinking Fund
.
The Notes are not subject to any
sinking fund.
ARTICLE II
DEFINITIONS AND INCORPORATION BY
REFERENCE
Section 2.01 Definitions
.
(a) All
capitalized terms used herein and not otherwise defined below shall
have the meanings ascribed thereto in the Existing
Indenture.
(b) The
following are definitions used in this Third Supplemental Indenture
and to the extent that a term is defined both herein and in the
Existing Indenture, the definition in this Third Supplemental
Indenture shall govern with respect to the Notes.
“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.
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“ Below Investment Grade
Rating Event ” means the Notes are rated below Investment
Grade by both Rating Agencies on any date from the date of the
public notice of an arrangement that could result in a Change of
Control until the end of the 60-day period following public notice
of the occurrence of a Change of Control (which period shall be
extended so long as the rating of the Notes is under publicly
announced consideration for possible downgrade by either of the
Rating Agencies); provided that a Below Investment Grade Rating
Event otherwise arising by virtue of a particular reduction in
rating shall not be deemed to have occurred in respect of a
particular Change of Control (and thus shall not be deemed a Below
Investment Grade Rating Event for purposes of the definition of
Change of Control Repurchase Event) if the Rating Agencies making
the reduction in rating to which this definition would otherwise
apply do not announce or publicly confirm or inform the Series
Trustee in writing at the request of the Company that the reduction
was the result, in whole or in part, of any event or circumstance
comprised of or arising as a result of, or in respect of, the
applicable Change of Control (whether or not the applicable Change
of Control shall have occurred at the time of the Below Investment
Grade Rating Event).
“ Change of Control
” means the consummation of any transaction (including,
without limitation, any merger or consolidation) the result of
which is that any “person” (as that term is used in
Section 13(d)(3) of the Exchange Act) becomes the
beneficial owner, directly or indirectly, of more than 50% of the
Voting Stock of the Company, measured by voting power rather than
number of shares. Notwithstanding the foregoing, a transaction will
not be deemed to involve a Change of Control if (1) the
Company becomes a wholly owned subsidiary of a holding company and
(2) the holders of the Voting Stock of such holding company
immediately following that transaction are substantially the same
as the holders of the Company’s Voting Stock immediately
prior to that transaction.
“ Change of Control
Repurchase Event ” means the occurrence of both a Change
of Control and a Below Investment Grade Rating Event.
“ Comparable Treasury
Issue ” means the United States Treasury security
selected by the Quotation Agent as having a maturity comparable to
the remaining term of the Notes to be redeemed that would be
utilized, at the time of selection and in accordance with customary
financial practice, in pricing new issues of corporate debt
securities of comparable maturity to the remaining term of such
Notes.
“ Comparable Treasury
Price ” means, with respect to any redemption date, (i)
the average of four Reference Treasury Dealer Quotations for such
redemption date, after excluding the highest and lowest such
Reference Treasury Dealer Quotations, or (ii) if the Series Trustee
obtains fewer than four such Reference Treasury Dealer Quotations,
the average of all such quotations, or (iii) if only one Reference
Treasury Dealer Quotation is received, such quotation.
“Consolidated Total
Assets” means total
consolidated assets as reflected in the Company’s most recent
consolidated balance sheet preceding the date of a determination
under Section 6.01(i) of this Third Supplemental
Indenture.
“Control,”
as used with respect to any Person,
means the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of such
Person, whether through the ownership of voting securities, by
agreement or otherwise. For purposes of this definition, the terms
“ controlling ,” “ controlled by
” and “ under common control with ” have
correlative meanings.
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“Debt”
means any debt for borrowed money or
any guarantee of such debt.
“Government
Securities” means
direct obligations of the United States for the payment of which
its full faith and credit is pledged, or obligations of a Person
controlled or supervised by and acting as an agency or
instrumentality of the United States the timely payment of which is
unconditionally guaranteed as a full faith and credit obligation by
the United States.
“ Investment Grade
” means a rating of Baa3 or better by Moody’s (or its
equivalent under any successor rating categories of Moody’s);
a rating of BBB- or better by S&P (or its equivalent under any
successor rating categories of S&P); or the equivalent
investment grade credit rating from any additional Rating Agency or
Rating Agencies selected by the Company.
“Lien”
means any mortgage, pledge, security
interest or lien to secure or assure payment of Debt.
“ Moody’s ”
means Moody’s Investors Service, Inc.
“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 Chief Executive Officer,
the President, the Chief Financial Officer, any Executive or Senior
Vice President or the Principal Accounting Officer (so long as such
Principal Accounting Officer is at least a Vice President) of the
Company.
“Principal
Property” means
(i) any manufacturing facility, whether now or hereafter
owned, 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.
“ Quotation Agent
” means the Reference Treasury Dealer appointed by the
Company.
“ Reference Treasury
Dealer ” means (i) each of Banc of America Securities
LLC, Goldman, Sachs & Co. and a Primary Treasury Dealer (as
defined below) selected by Wachovia Capital Markets, LLC and its
successors; provided, however, that if any of the foregoing shall
cease to be a primary U.S. Government securities dealer in New York
City (a “Primary Treasury Dealer”), the Company shall
substitute therefor another Primary Treasury Dealer, and (ii) any
other Primary Treasury Dealer selected by the Company.
“ Rating Agency ”
means (1) each of Moody’s and S&P; and (2) if
either of Moody’s or S&P ceases to rate the Notes or
fails to make a rating of the Notes publicly available for reasons
outside of the Company’s control, a “nationally
recognized statistical rating organization” within the
meaning of Rule 15c3-1(c)(2)(vi)(F) under the Exchange
Act, selected by the Company (as certified by a resolution of the
Company’s Board of Directors) as a replacement agency for
Moody’s or S&P, or both, as the case may be.
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“ Reference Treasury Dealer
Quotations ” means, with respect to each Reference
Treasury Dealer and any redemption date, the average, as determined
by the Series Trustee, of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a percentage
of its principal amount) quoted in writing to the Series Trustee by
such Reference Treasury Dealer at 5:00 p.m., New York City time, on
the third business day preceding such redemption date.
“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.
“ S&P ” means
Standard & Poor’s Ratings Services, a division of
McGraw-Hill, Inc.
“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.
“ Treasury Rate ”
means, with respect to any redemption date, the rate per annum
equal to the semi-annual equivalent yield to maturity of the
Comparable Treasury Issue, assuming a price for the Comparable
Treasury Issue (expressed as a percentage of its principal amount)
equal to the Comparable Treasury Price for such redemption
date.
“ Voting Stock ”
of any specified “person” (as that term is used in
Section 13(d)(3) of the Exchange Act) as of any date
means the capital stock or other equity interest of such person
that is at the time entitled to vote generally in the election of
the board of directors or equivalent body of such
person.
“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.
Section 2.02 Other
Definitions .
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Term
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Defined in Section
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“Additional Notes”
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1.03
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Section 2.03 Incorporation by
Reference of Trust Indenture Act .
The Indenture is subject to the
mandatory provisions of the Trust Indenture Act, which are
incorporated by reference in and made a part of the Indenture. The
following Trust Indenture Act terms have the following
meanings:
“indenture securities”
means the Notes.
“indenture security
holder” means a Holder.
“indenture to be
qualified” means this Third Supplemental
Indenture.
“indenture trustee” or
“institutional trustee” means the Series
Trustee.
“obligor” on the
indenture securities means the Company and any other obligor on the
indenture securities.
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All other Trust Indenture Act terms
used in this Indenture that are defined by the Trust Indenture Act,
defined by Trust Indenture Act reference to another statute or
defined by Commission rule have the meanings assigned to them by
such definitions.
ARTICLE III
REDEMPTION
Section 3.01 Optional
Redemption .
The Notes are subject to redemption at any time
or from time to time, in whole or in part, at the Company’s
option at a Redemption Price equal to the greater of:
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(i)
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100% of the principal amount of the Notes to be
redeemed, and
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(ii)
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as determined by the Quotation Agent, the sum of
the present values of the remaining scheduled payments of principal
and interest in respect of the Notes to be redeemed (not including
any portion of those payments of interest accrued as of the date of
redemption) discounted to the date of redemption on a semi-annual
basis (assuming a 360-day year consisting of twelve 30-day months)
at the Treasury Rate plus 50 basis points
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plus accrued interest to the redemption date.
The Company may provide in such notice that payment of such
Redemption Price and performance of the Company’s obligations
with respect to such redemption or purchase may be performed by
another Person. Any such notice may, at the Company’s
discretion, be subject to the satisfaction of one or more
conditions precedent.
Section 3.02 Notices to Series
Trustee .
If the Company elects to redeem the
Notes pursuant to this Article, it shall notify the Series Trustee
in writing of the redemption date and the principal amount of Notes
to be redeemed.
The Company shall give each notice
to the Series Trustee provided for in this Section at least 35 days
but not more than 60 days before the redemption date unless the
Series Trustee consents to a shorter period. Such notice shall be
accompanied by an Officers’ Certificate and an Opinion of
Counsel from the Company to the effect that such redemption will
comply with the conditions herein. If fewer than all the Notes are
to be redeemed, the record date relating to such redemption shall
be selected by the Company and given to the Series Trustee, which
record date shall be not fewer than 15 days after the date of
notice to the Series Trustee. Any such notice may be canceled at
any time prior to notice of such redemption being mailed to any
Holder and shall thereby be void and of no effect.
Section 3.03 Selection of Notes
To Be Redeemed .
If fewer than all the Notes of a
series are to be redeemed, the Series Trustee shall select the
Notes of such series to be redeemed pro rata or by lot or by a
method that complies with applicable legal and securities exchange
requirements, if any, and that the Series Trustee in its sole
discretion shall deem to be fair and appropriate and in accordance
with methods generally used at the time of selection by fiduciaries
in similar circumstances. The Series Trustee shall make the
selection from outstanding Notes of such series not previously
called for redemption. The Series Trustee may select for redemption
portions of the principal of the Notes of a series that have
denominations larger than $2,000. The Notes and portions of them
the Series Trustee selects shall be in amounts of $2,000 or a whole
multiple of $1,000. Provisions of this Third Supplemental Indenture
that apply to the Notes called for redemption also apply to
portions of the Notes called for redemption. The Series Trustee
shall notify the Company promptly of the Notes or portions of the
Notes to be redeemed.
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Section 3.04 Notice of
Redemption .
At least 30 days but not more
than 60 days before a date for redemption of Securities, the
Company shall mail a notice of redemption by first-class mail to
each Holder of Securities to be redeemed at such Holder’s
registered address.
The notice shall identify the Notes
to be redeemed and shall state:
(b) the
redemption price and the amount of accrued interest to the
redemption date;
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(c)
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the name and address of the Paying
Agent;
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(d) that
the Notes called for redemption must be surrendered to the Paying
Agent to collect the redemption price;
(e) if
fewer than all the outstanding the Notes are to be redeemed, the
certificate numbers and principal amounts of the particular the
Notes to be redeemed;
(f) that,
unless the Company defaults in making such redemption payment or
the Paying Agent is prohibited from making such payment pursuant to
the terms of this Indenture, interest on the Notes (or portion
thereof) called for redemption ceases to accrue on and after the
Redemption Date;
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(g)
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the CUSIP number, if any, printed on the Notes
being redeemed; and
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(h) that
no representation is made as to the correctness or accuracy of the
CUSIP number, if any, listed in such notice or printed on the
Notes.
At the Company’s request, the
Series Trustee shall give the notice of redemption in the
Company’s name and at the Company’s expense. In such
event, the Company shall provide the Series Trustee with the
information required by this Section.
Section 3.05 Effect of Notice of
Redemption .
Once notice of redemption is mailed,
the Notes called for redemption become due and payable on the
Redemption Date and at the redemption price stated in the notice.
Upon surrender to the Paying Agent, such Notes shall be paid at the
redemption price stated in the notice, plus accrued interest, if
any, to the redemption date; provided , however ,
that if the redemption date is after a Regular Record Date and on
or p
