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Exhibit 4.6
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RPM, INC.
AND
THE FIRST NATIONAL BANK OF CHICAGO,
Trustee
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First Supplemental Indenture
Dated as of March 5, 1998
To
Indenture
Dated as of June 1, 1995
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Liquid Asset Notes with Coupon Exchange ("LANCEs(SM)") Due 2008
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FIRST SUPPLEMENTAL INDENTURE, dated as of March 5, 1998, between RPM,
Inc., a corporation duly organized and existing under the laws of the State of
Ohio (herein called the "Company"), having its principal office at 2628 Pearl
Road, Medina, Ohio 44258, and The First National Bank of Chicago, a national
banking association duly organized and existing under the laws of the United
States, as Trustee (herein called the "Trustee") under the Indenture dated as of
June 1, 1995 between the Company and the Trustee (the "Indenture").
Recitals of the Company
The Company has executed and delivered the Indenture to the Trustee to
provide for the issuance from time to time of its unsecured debentures, notes or
other evidences of indebtedness (the "Securities"), to be issued in one or more
series as provided in the Indenture.
Pursuant to the terms of the Indenture, the Company desires to provide
for the establishment of a new series of its Securities to be known as its
"Liquid Asset Notes with Coupon Exchange ("LANCEs(SM)") Due 2008" (herein called
the "Debentures"), in this First Supplemental Indenture.
All things necessary to make this First Supplemental Indenture a valid
agreement of the Company have been done.
Now, Therefore, This First Supplemental Indenture Witnesseth:
For and in consideration of the premises and the purchase of the
Debentures by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Debentures, as follows:
ARTICLE ONE
Terms of the Debentures
Section 101. There is hereby authorized a series of Securities
designated the "Liquid Asset Notes with Coupon Exchange ("LANCEs(SM)") Due
2008", limited in aggregate principal amount to $100,000,000 (except as
provided in Section 301(2) of the Indenture). The Debentures shall mature and
the principal shall be due and payable together with all accrued and unpaid
interest thereon on March 1, 2008 and shall be issued in the form of a
registered global Security without coupons, registered in the name of Cede
& Co.
Section 102. The Debentures shall be issued in global form and the
provisions of Sections 201, 203 and 305 of the Indenture applicable to global
Securities shall apply to the Debentures.
Section 103. (a) Interest Rates. During any Floating Rate Period (as
defined below), interest on each of the Debentures shall be payable
semi-annually in arrears on each March 1 and September 1 (each an "Interest
Payment Date"), commencing on September 1, 1998, at the applicable Floating Rate
(as defined below), determined and compounded on a quarterly basis or determined
but not compounded on a semiannual basis, as applicable. During any Fixed Rate
Period (as defined below), interest on each of the Debentures shall be payable
semi-annually in arrears on each Interest Payment Date at the Fixed Rate (as
defined below). Interest, whether accruing at a Floating Rate or the Fixed Rate,
will accrue from and including the Original Issuance Date or, if later, from and
including the most recent Interest Payment Date on which interest has been paid
or duly provided for. Interest on the Debentures calculated at a Floating
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Rate for any period shall be computed on the basis of the actual number of days
elapsed in such period and a 360-day year. Interest on the Debentures calculated
at the Fixed Rate for any period shall be computed on the basis of a 360-day
year of twelve 30-day months and, for any period shorter than a full semi-annual
Interest Accrual Period for which interest is computed, on the basis of the
actual number of days elapsed in such period.
(b) Interest Rate Conversion. Effective on the Interest Rate Reset Date
or on any anniversary thereof to and including March 1, 2007 or if such date is
not a Business Day, then on the following Business Day (each, a "Reference
Date"), if a Swap Termination Date shall not have occurred by such date and the
Swap Rate (as defined below) for an interest rate swap with a remaining maturity
(as set forth below, the "Remaining Maturity") corresponding to the applicable
Reference Date is greater than or equal to the applicable reference rate (as set
forth below, the "Reference Rate"), then the interest rate on all, but not less
than all, of the Debentures shall be converted from the Fixed Rate to the
Subsequent Floating Rate for each subsequent Interest Accrual Period (in
accordance with the definition of Floating Rate Period) (the "Interest Rate
Conversion"). From and after the date of the Interest Rate Conversion (the
"Interest Rate Conversion Date") and for each Interest Accrual Period ending
prior to the end of the Floating Rate Period which begins on such Interest Rate
Conversion Date, interest on all of the Debentures shall accrue at the
Subsequent Floating Rate. The Trustee shall send notice in writing of such
Interest Rate Conversion to the Company one Business Day following the
notification of the Trustee by the trustee of the RPM, Inc. Tiers(SM)
Certificates Trust RPM 1998-1 of such Interest Rate Conversion.
Reference Date Remaining Maturity Reference Rate*
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March 1, 2000 8 years 7.285 percent
March 1, 2001 7 years 7.023 percent
March 1, 2002 6 years 7.011 percent
March 1, 2003 5 years 6.852 percent
March 1, 2004 4 years 6.859 percent
March 1, 2005 3 years 6.809 percent
March 1, 2006 2 years 6.694 percent
March 1, 2007 1 year 6.500 percent
* Represents semi-annual 30/360 rates.
(c) Notwithstanding the foregoing, upon the occurrence of a Swap
Termination Date, if the Debentures shall then bear interest at a Floating Rate,
the Holders of not less than 66_% in aggregate principal amount of the
Debentures will have the right to elect to convert the interest rate on all, but
not less than all, of the Debentures from such Floating Rate to the Fixed Rate
by delivering to the Company and the Trustee irrevocable written notice of such
Holders' election to so convert the interest rate. Such notice to the Company
and the Trustee shall set forth the name of the Holders exercising such right
and a statement that a Swap Termination Date has occurred and that the Holders
wish to exercise their right to convert the interest rate to the Fixed Rate
pursuant to this Section. Any exercise of such conversion right shall be
irrevocable. Upon receipt of such notice by the Company, (i) any Floating Rate
Period then in effect shall terminate, (ii) a Fixed Rate Period will then be in
effect and be deemed to have been in effect at all times from the then most
recent Interest Payment Date on which interest has been paid or duly provided
for (or, if no interest has been paid or duly provided for on any Interest
Payment Date, from the Original Issuance Date) and (iii) no Floating Rate Period
shall thereafter be in effect at any time.
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(d) Certain Definitions. As used in this First Supplemental Indenture
with respect to the Debentures, the following terms have the following meanings:
"Business Day" means any day, other than a Saturday or Sunday, or a day
on which banking institutions in New York, New York are authorized or obligated
by law or executive order to be closed.
"Calculation Agent" means the Swap Counterparty, as calculation agent,
and its successors in such capacity under the Swap Agreement.
"Final Maturity Date" means March 1, 2008.
"Fixed Rate" means 6.50% per annum.
"Fixed Rate Period" exists at any time until the Final Maturity Date at
which a Floating Rate Period is not in effect.
"Floating Rate" means, (i) for any Interest Accrual Period during the
Initial Floating Rate Period, a rate per annum equal to the London interbank
offered rate for United States dollar deposits ("LIBOR") for a period of six
months minus .05% (the "Initial Floating Rate") and (ii) for any Interest
Accrual Period during the Subsequent Floating Rate Period, a rate per annum
equal to LIBOR for a period of three months (the "Subsequent Floating Rate").
Each such Floating Rate shall be determined from time to time on the Interest
Determination Date during such Interest Accrual Period by the Calculation Agent
in accordance with the following provisions (in each case, with all percentages
resulting from any calculation rounded to the nearest one hundred-thousandth of
a percent, with five one-millionths of a percent rounded upward; and all dollar
amounts used in or resulting from any such calculation will be rounded to the
nearest cent, with one-half cent rounded upward):
(i) For each applicable semiannual or quarterly period, LIBOR
will be determined on the basis of the offered rates for deposits in U.S.
dollars having a six-month or three-month maturity, as applicable, commencing on
the first day of such period immediately following the related Interest
Determination Date, which appear on Telerate Page 3750 on the Dow Jones Telerate
Service (or such other page as may replace that page on that service for the
purpose of displaying London interbank offered rates of major banks) as of 11:00
a.m. (London time) on that Interest Determination Date. If such rate does not so
appear on Telerate Page 3750, LIBOR in respect of such Interest Determination
Date will be determined as described in (ii) below.
(ii) If on any applicable Interest Determination Date the rate
for deposits of U.S. dollars having a six-month or three-month maturity, as
applicable, does not appear on Telerate Page 3750 as specified in (i) above,
LIBOR will be determined on the basis of the rates at which deposits in U.S.
dollars having a six-month or three-month maturity, as applicable, are offered
by major banks selected by the Calculation Agent in the London interbank market
at approximately 11:00 a.m. (London time) on the related Interest Determination
Date to prime banks in the London interbank market for a period commencing on
the first day of such period immediately following that Interest Determination
Date and in a principal amount of not less than $1 million that in the
Calculation Agent's judgment is representative for a single transaction in such
market at such time. The Calculation Agent will request the principal London
office of each such bank to provide a quotation of its rate. If at least two
such quotations are provided, LIBOR in respect of that Interest Determination
Date will be the arithmetic mean of such quotations. If fewer than two
quotations are provided, LIBOR in respect of that Interest
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Determination Date will be the arithmetic mean of the rates quoted by major
banks in New York City selected by the Calculation Agent at approximately 11:00
a.m. (New York City time) on that Interest Determination Date for loans in U.S.
dollars to leading European banks, having a six-month or three-month maturity,
as applicable, commencing on the first day of such Interest Accrual Period
immediately following that Interest Determination Date and in a principal amount
of not less than $1 million that, in the Calculation Agent's judgment, is
representative for a single transaction in such market at such time.
The Calculation Agent's determination of any interest rate will be
final and binding in the absence of manifest error.
"Floating Rate Period" means (i) the period from the Original Issuance
Date until the Interest Rate Reset Date (the "Initial Floating Rate Period") and
(ii) after the Initial Floating Rate Period, the period from the Interest Rate
Conversion Date until the Final Maturity Date (the "Subsequent Floating Rate
Period"). Notwithstanding the foregoing, upon the occurrence of a Swap
Termination Date (if any) and the election by Holders of not less than 66_% in
aggregate principal amount of the Debentures, (A) any Floating Rate Period then
in effect shall automatically terminate, (B) a Fixed Rate Period shall
automatically be in effect and be deemed to have been in effect at all times
from the then most recent Interest Payment Date on which interest has been paid
or duly provided for (or, if no such interest has been paid or duly provided for
on any Interest Payment Date from the Original Issuance Date) and (C) no
Floating Rate Period shall thereafter be in effect at any time.
"Interest Accrual Period" means, for each Interest Payment Date, the
period from and including the prior Interest Payment Date (or, in the case of
the first Interest Accrual Period, from and including the Original Issuance
Date) to but excluding such Interest Payment Date.
"Interest Determination Date" means (i) in the case of each Interest
Accrual Period occurring during the Initial Floating Rate Period, two Market
Days prior to the first or last day of such Interest Accrual Period (whichever
results in the higher rate) and (ii) in the case of each Interest Accrual Period
thereafter during a Floating Rate Period, the second Market Day next preceding
each LIBOR Reset Date within such Interest Accrual Period.
"Interest Rate Reset Date" means March 1, 2000.
"LIBOR Reset Date" means each March 1, June 1, September 1 and December
1.
"Market Day" means any day on which dealings in deposits in U.S.
dollars are transacted in the London interbank market.
"Original Issuance Date" means March 5, 1998.
"Swap Agreement" means the ISDA Master Agreement, the Schedule thereto
and the Confirmation thereto, each dated as of March 2, 1998 between RPM, Inc.
TIERS_ Certificates Trust RPM 1998-1 and the Swap Counterparty.
"Swap Counterparty" means Salomon Swapco(R) Inc.
"Swap Rate" for any Reference Date means the bid side of the observable
rates published on Telerate page 19901 two Market Days prior to such Reference
Date, calculated on a semi-annual 30/360 basis, provided that, in the event such
rate is not available on such page, the Swap Rate shall be based on the bid side
of the observable rates published on Reuters page
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"TETC"/Telerate page 2103/4 on such date, provided further that, in the event
such rate is not available on such page, the Swap Rate for such Reference Date
shall be calculated by the Calculation Agent based on the linear interpolation
of the Swap Rate for which a bid is observable for the Remaining Maturity next
longer and the Remaining Maturity next shorter than such Remaining Maturity.
"Swap Termination Date" means the Early Termination Date as defined in
the Swap Agreement.
Section 104. The interest payable on the Debentures, and punctually
paid or duly provided for, on any Interest Payment Date will be paid by 10:00
A.M. (New York City time) on such Interest Payment Date to the Person in whose
name such Debenture (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest, which shall be
one Business Day prior to the relevant Interest Payment Date (except that if the
Debentures are no longer represented by a global Security as a result of the
occurrence of an event specified in Section 305(a) of the Indenture, the Regular
Record Date for such interest payment shall be the close of business on the
fifteenth day (whether or not a Business Day), as the case may be, next
preceding such Interest Payment Date). In the event that any date on which
interest is payable on the Debentures is not a Business Day, then payment of the
interest payable on such date will be made on the next succeeding day which is a
Business Day (without any interest or other payment in respect of any such
delay).
Section 105. Subject to agreements with or the rules of The Depository
Trust Company or any successor book-entry security system or similar system with
respect to global Securities, payments of interest will be made by check mailed
to the Holder of each Debenture at the address shown in the Security Register,
and payments of the principal amount of each Debenture will be made at maturity
by check against presentation of the Debenture at the office or agency of the
Trustee.
Section 106. The Debentures shall be issued in denominations of
$100,000 or any integral multiple of $100,000.
Section 107. Principal of and interest on the Debentures shall be
payable in the coin or currency of the United States of America, which, at the
time of payment, is legal tender for public and private debts.
Section 108. The Debentures shall be subject to defeasance, at the
Company's option, as provided for in Section 402 of the Indenture.
Section 109. The Debentures will not be redeemable at the option of the
Company or any Holder prior to maturity and will not be subject to any sinking
fund.
Section 110. Upon the occurrence of (a) a default by the Company in the
payment of any amount due (and the continuation thereof for any applicable grace
period) on the Debentures, (b) the acceleration of the maturity of the
Debentures or (c) a Swap Termination Date, the Trustee shall promptly deliver
notice of such occurrence to each Holder.
Section 111. The Company will report interest deductions on the
Debentures for federal income tax purposes under an assumption that none of the
interest on the Debentures is contingent interest.
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Section 112. The definition of "Material Subsidiary," as it appears in
Section 101 of the Indenture, is hereby amended in its entirety, with respect to
the Debentures, as follows:
"Material Subsidiary" means any Corporation of which
at the time of determination the Company or one or more Subsidiaries owns or
controls directly or indirectly more than 50% of the shares of Voting Stock and
whose net sales exceed 10% of the Company's consolidated net sales determined in
accordance with GAAP consistently applied.
Section 113. The definition of "Events of Default," as it appears at
Section 501 of the Indenture, is hereby amended, with respect to the Debentures,
as follows:
(a) Subsection (5) of Section 501 of the Indenture is hereby amended in
its entirety, with respect to the Debentures, as follows:
(5) if any event of default as defined in any
mortgage, indenture or instrument under which there may be issued, or by which
there may be secured or evidenced, any Indebtedness of the Company or any
Subsidiary, whether such Indebtedness now exists or shall hereafter be created,
shall happen and shall result in such Indebtedness in principal amount in excess
of the greater of $100,000,000 or 10% of Consolidated Shareholders' Equity of
the Company becoming or being declared due and payable prior to the date on
which it would otherwise become due and payable, and such acceleration shall not
be rescinded or annulled, or such Indebtedness shall not have been discharged,
within a period of 60 days after there shall have been given, by registered or
certified mail, to the Company by the Trustee or to the Company and the Trustee
by the Holders of at least 25% in principal amount of the Outstanding Securities
of such series, a written notice specifying such event of default and requiring
the Company to cause such acceleration to be rescinded or annulled or to cause
such Indebtedness to be discharged and stating that such notice is a "Notice of
Default" hereunder; or
(b) Subsection (6) of Section 501 of the Indenture is hereby amended in
its entirety, with respect to the Debentures, as follows:
(6) the entry of one or more judgments, orders or
decrees for the payment of money in excess of $100,000,000, either individually
or in the aggregate (net of amounts covered by insurance, bond, surety or
similar instrument), against the Company or any Subsidiary, or any of their
respective properties, which judgment, order or decree shall not be discharged
and either (a) any creditor shall have commenced an enforcement proceeding upon
such judgment, order or decree or (b) such judgment, order or decree shall
remain unstayed and in effect for a period of 60 consecutive days; or
ARTICLE TWO
Form of the Debentures
Section 201. The Debentures are to be substantially in the following
form and shall include substantially the legend shown so long as the Debentures
are global Securities:
(FORM OF FACE OF DEBENTURE)
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RPM, INC.
LIQUID ASSET NOTES WITH COUPON
EXCHANGE ("LANCEs(SM)") DUE 2008
No. R-1 $100,000,000
CUSIP No. 749685AG8
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT AND ANY CERTIFICATE
ISSUED IN EXCHANGE FOR THIS CERTIFICATE OR ANY PORTION THEREOF 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 OTHER
THAN DTC OR A NOMINEE THEREOF IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT") OR ANY STATE SECURITIES LAWS. NEITHER THIS
SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERRED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE "RESALE
RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUANCE 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, (B) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO
LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, 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, (D) PURSUANT TO OFFERS AND
SALES THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S
UNDER THE SECURITIES ACT UPON THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATION AND/OTHER INFORMATION SATISFACTORY TO THE TRUSTEE AND THE COMPANY,
OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT UPON THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATION AND/OR OTHER
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INFORMATION SATISFACTORY TO THE TRUSTEE AND THE COMPANY, SUBJECT IN EACH OF THE
FOREGOING CASES, TO A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER
SIDE OF THIS SECURITY BEING COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE
TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE
RESALE RESTRICTION TERMINATION DATE.
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Debentures"), issued and to be issued in a single
series under an Indenture, dated as of June 1, 1995 as supplemented by the First
Supplemental Indenture dated as of March 5, 1998 (herein called the "Indenture",
which term shall have the meaning assigned to it in such instrument), between
the Company and The First National Bank of Chicago, as Trustee (herein called
the "Trustee", which term includes any successor trustee under the Indenture),
and reference is hereby made to the Indenture for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Company,
the Trustee and the Holders of the Debentures and of the terms upon which the
Debentures are, and are to be, authenticated and delivered. This Debenture is
one of the series designated on the face hereof, limited in aggregate principal
amount to $100,000,000.
RPM, INC., a corporation duly organized and existing under the laws of
the State of Ohio (herein called the "Company", which term includes any
successor Person under the Indenture hereafter referred to), for value received,
hereby promises to pay to CEDE & CO., or registered assigns, the principal sum
of One Hundred Million and No/100 Dollars ($100,000,000) on March 1, 2008, and
to pay interest thereon from the Original Issuance Date or from the most recent
Interest Payment Date to which interest has been paid or duly provided for,
semi-annually in arrears on each March 1 and September 1 (each an "Interest
Payment Date"), determined as set forth herein, commencing September 1, 1998, at
the rate of interest determined as set forth herein, until the principal hereof
is paid or made available for payment. The interest so payable, and punctually
paid or duly provided for, on any Interest Payment Date will, as provided in the
Indenture, be paid to the Person in whose name this Debenture (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest, which shall be one Business Day prior to the
relevant Interest Payment Date (except that if the Debentures are no longer
represented by a global Security as a result of the occurrence of an event
specified in Section 305(a) of the Indenture, the Regular Record Date for such
interest payment shall be the close of business on the fifteenth day (whether or
not a Business Day), as the case may be, next preceding such Interest Payment
Date). In the event that any date on which interest is payable on the Debentures
is not a Business Day, then payment of the interest payable on such date will be
made on the next succeeding day which is a Business Day (without any interest or
other payment in respect of any such delay). Any such interest not so punctually
paid or duly provided for will forthwith cease to be payable to the Holder on
such Regular Record Date and may either be paid to the Person in whose name this
Debenture (or one or more Predecessor Securities) is registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest to
be fixed by the Trustee, notice whereof shall be given to Holders of Debentures
not less than 10 days prior to such Special Record Date, or be paid at any time
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Debentures may be listed, and upon such notice
as may be required by such exchange, all as more fully provided in the
Indenture.
Payment of the principal of (and premium, if any) and interest on this
Debenture will be made at the office or agency of the Company maintained for
that purpose in the Borough of Manhattan, in such coin or currency of the United
States of America as at the time of payment is legal tender for payment of
public and private debts; provided, however, that at the option of the
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Company payment of interest may be made by check mailed to the address of the
Person entitled thereto as such address shall appear in the Security Register.
Except as provided above with respect to the payment of interest, any
payment on this Debenture due on any day which is not a Business Day in the City
of New York need not be made on such day, but may be made on the next succeeding
Business Day with the same force and effect as if made on the due date and no
interest shall accrue for the period from and after such date.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to herein by manual signature, this Debenture shall not be
entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
During any Floating Rate Period (as defined below), interest on this
Debenture shall be payable semi-annually in arrears on each Interest Payment
Date, commencing on September 1, 1998, at the applicable Floating Rate (as
defined below), determined and compounded on a quarterly basis or determined but
not compounded on a semiannual basis, as applicable. During any Fixed Rate
Period (as defined below), interest on this Debenture shall be payable
semi-annually in arrears on each Interest Payment Date at the Fixed Rate (as
defined below). Interest, whether accruing at a Floating Rate or the Fixed Rate,
will accrue from and including the Original Issuance Date or, if later, from and
including the most recent Interest Payment Date on which interest has been paid
or duly provided for. Interest on this Debenture calculated at a Floating Rate
for any period shall be computed on the basis of the actual number of days
elapsed in such period and a 360-day year. Interest on this Debenture calculated
at the Fixed Rate for any period shall be computed on the basis of a 360-day
year of twelve 30-day months and, for any period shorter than a full semi-annual
Interest Accrual Period for which interest is computed, on the basis of the
actual number of days elapsed in such period.
As used herein:
"Business Day" means any day, other than a Saturday or Sunday, or a day on which
banking institutions in New York, New York are authorized or obligated by law or
executive order to be closed.
"Calculation Agent" means the Swap Counterparty as calculation agent, and its
successors in such capacity under the Swap Agreement.
"Final Maturity Date" means March 1, 2008.
"Fixed Rate" means 6.50% per annum.
"Fixed Rate Period" exists at any time until the Final Maturity Date at which a
Floating Rate Period is not in effect.
"Floating Rate" means, (i) for any Interest Accrual Period during the Initial
Floating Rate Period, a rate per annum equal to the London interbank offered
rate for United States dollar deposits ("LIBOR") for a period of six months
minus .05% (the "Initial Floating Rate") and (ii) for any Interest Accrual
Period during the Subsequent Floating Rate Period, a rate per annum equal to
LIBOR for a period of three months (the "Subsequent Floating Rate"). Each such
Floating Rate shall be determined from time to time on the Interest
Determination Date during such Interest Accrual Period by the Calculation Agent
in accordance with the following provisions (in each case, with all percentages
resulting from any calculation rounded to the nearest one hundred-
11
thousandth of a percent, with five one-millionths of a percent rounded upward;
and all dollar amounts used in or resulting from any such calculation will be
rounded to the nearest cent, with one-half cent rounded upward):
(i) For each applicable semiannual or quarterly period, LIBOR
will be determined on the basis of the offered rates for deposits in U.S.
dollars having a six-month or three-month maturity, as applicable, commencing on
the first day of such period immediately following the related Interest
Determination Date, which appear on Telerate Page 3750 on the Dow Jones Telerate
Service (or such other page as may replace that page on that service for the
purpose of displaying London interbank offered rates of major banks) as of 11:00
a.m. (London time) on that Interest Determination Date. If such rate does not so
appear on Telerate Page 3750, LIBOR in respect of such Interest Determination
Date will be determined as described in (ii) below.
(ii) If on any applicable Interest Determination Date the rate
for deposits of U.S. dollars having a six-month or three-month maturity, as
applicable, does not appear on Telerate Page 3750 as specified in (i) above,
LIBOR will be determined on the basis of the rates at which deposits in U.S.
dollars having a six-month or three-month maturity, as applicable, are offered
by major banks selected by the Calculation Agent in the London interbank market
at approximately 11:00 a.m. (London time) on the related Interest Determination
Date to prime banks in the London interbank market for a period commencing on
the first day of such period immediately following that Interest Determination
Date and in a principal amount of not less than $1 million that in the
Calculation Agent's judgment is representative for a single transaction in such
market at such time. The Calculation Agent will request the principal London
office of each such bank to provide a quotation of its rate. If at least two
such quotations are provided, LIBOR in respect of that Interest Determination
Date will be the arithmetic mean of such quotations. If fewer than two
quotations are provided, LIBOR in respect of that Interest Determination Date
will be the arithmetic mean of the rates quoted by major banks in New York City
selected by the Calculation Agent at approximately 11:00 a.m. (New York City
time) on that Interest Determination Date for loans in U.S. dollars to leading
European banks, having a six-month or three-month maturity, as applicable,
commencing on the first day of such Interest Accrual Period immediately
following that Interest Determination Date and in a principal amount of not less
than $1 million that, in the Calculation Agent's judgment, is representative for
a single transaction in such market at such time.
The Calculation Agent's determination of any interest rate will be
final and binding in the absence of manifest error.
"Floating Rate Period" means (i) the period from the Original Issuance Date
until the Interest Rate Reset Date (the "Initial Floating Rate Period") and (ii)
after the Initial Floating Rate Period, the period from the Interest Rate
Conversion Date until the Final Maturity Date (the "Subsequent Floating Rate
Period"). Notwithstanding the foregoing, upon the occurrence of a Swap
Termination Date (if any) and the election by Holders of not less than 66_% in
aggregate principal amount of the Debentures, (A) any Floating Rate Period then
in effect shall automatically terminate and a Fixed Rate Period shall
automatically be in effect, (B) a Fixed Rate Period shall automatically be in
effect and be deemed to have been in effect at all times from the then most
recent Interest Payment Date on which interest has been paid or duly provided
for (or, if no such interest has been paid or duly provided for on any Interest
Payment Date from the Original Issuance Date) and (C) no Floating Rate Period
shall thereafter be in effect at any time.
12
"Interest Accrual Period" means, for each Interest Payment Date, the period from
and including the prior Interest Payment Date (or, in the case of the first
Interest Accrual Period, from and including the Original Issuance Date) to but
excluding such Interest Payment Date.
"Interest Determination Date" means (i) in the case of each Interest Accrual
Period occurring during the Initial Floating Rate Period, two Market Days prior
to the first or last day of such Interest Accrual Period (whichever results in
the higher rate) and (ii) in the case of each Interest Accrual Period thereafter
during a Floating Rate Period, the second Market Day next preceding each LIBOR
Reset Date within such Interest Accrual Period.
"Interest Rate Reset Date" means March 1, 2000.
"LIBOR Reset Date" means each March 1, June 1, September 1 and December 1.
"Market Day" means any day on which dealings in deposits in U.S. dollars are
transacted in the London interbank market.
"Original Issuance Date" means March 5, 1998.
"Swap Agreement" means the ISDA Master Agreement, the Schedule thereto and the
Confirmation thereto, each dated as of March 2, 1998 between RPM, Inc. TIERS_
Certificates Trust RPM 1998-1 and the Swap Counterparty.
"Swap Counterparty" means Salomon Swapco(R) Inc.
"Swap Rate" for any Reference Date means the bid side of the observable rates
published on Telerate page 19901 two Market Days prior to such Reference Date,
calculated on a semi-annual 30/360 basis, provided that, in the event such rate
is not available on such page, the Swap Rate shall be based on the bid side of
the observable rates published on Reuters page "TETC"/Telerate page 2103/4 on
such date, provided further that, in the event such rate is not available on
such page, the Swap Rate for such Reference Date shall be calculated by the
Calculation Agent based on the linear interpolation of the Swap Rate for which a
bid is observable for the Remaining Maturity next longer and the Remaining
Maturity next shorter than such Remaining Maturity.
"Swap Termination Date" means the Early Termination Date as defined in the Swap
Agreement.
Effective on the Interest Rate Reset Date or on any anniversary thereof
to and including March 1, 2007 or if such date is not a Business Day, then on
the following Business Day (each, a "Reference Date"), if a Swap Termination
Date shall not have occurred by such date and the Swap Rate for an interest rate
swap with a remaining maturity (as set forth below, the "Remaining Maturity")
corresponding to the applicable Reference Date is greater than or equal to the
applicable reference rate (as set forth below, the "Reference Rate"), then the
interest rate on all, but not less than all, of the Debentures shall be
converted from the Fixed Rate to the Subsequent Floating Rate for each
subsequent Interest Accrual Period (in accordance with the definition of
Floating Rate Period) (the "Interest Rate Conversion"). From and after the date
of the Interest Rate Conversion (the "Interest Rate Conversion Date") and for
each Interest Accrual Period ending prior to the end of the Floating Rate Period
which begins on such Interest Rate Conversion Date, interest on all of the
Debentures shall accrue at the Subsequent Floating Rate. The Trustee shall send
notice in writing of such Interest Rate Conversion to the Company one Business
Day following the notification of the Trustee by the trustee of the RPM, Inc.
Tiers(SM) Certificates Trust RPM 1998-1 of such Interest Rate Conversion.
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Reference Date Remaining Maturity Reference Rate*
-------------- ------------------ ---------------
March 1, 2000 8 years 7.285 percent
March 1, 2001 7 years 7.023 percent
March 1, 2002 6 years 7.011 percent
March 1, 2003 5 years 6.852 percent
March 1, 2004 4 years 6.859 percent
March 1, 2005 3 years 6.809 percent
March 1, 2006 2 years 6.694 percent
March 1, 2007 1 year 6.500 percent
* Represents semi-annual 30/360 rates.
Notwithstanding the foregoing, upon the occurrence of a Swap
Termination Date, if the Debentures shall then bear interest at a Floating Rate,
the Holders of not less than 66-2/3% in aggregate principal amount of the
Debentures will have the right to elect to convert the interest rate on all, but
not less than all, of the Debentures from such Floating Rate to the Fixed Rate
by delivering to the Company and the Trustee irrevocable written notice of such
Holders' election to so convert the interest rate. Such notice to the Company
and the Trustee shall set forth the name of the Holders exercising such right
and a statement that a Swap Termination Date has occurred and that the Holders
wish to exercise their right to convert the interest rate to the Fixed Rate
pursuant to this Section. Any exercise of such conversion right shall be
irrevocable. Upon receipt of such notice by the Company, (i) any Floating Rate
Period then in effect shall terminate, (ii) a Fixed Rate Period will then be in
effect and be deemed to have been in effect at all times from the then most
recent Interest Payment Date on which interest has been paid or duly provided
for (or, if no interest has been paid or duly provided for on any Interest
Payment Date, the Original Issuance Date) and (iii) no Floating Rate Period
shall thereafter be in effect at any time.
The Indenture contains provisions for defeasance at any time of the
entire indebtedness of this Debenture or certain restrictive covenants and
Events of Default with respect to this Debenture upon compliance with certain
conditions set forth in the Indenture.
The Debentures are not subject to redemption at the option of the
Company or any Holder prior to maturity and will not be subject to any sinking
fund.
If an Event of Default with respect to the Debentures shall occur and
be continuing, the principal of the Debentures may be declared due and payable
in the manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Debentures of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the Debentures at
the time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of a majority in the principal amount of the
Debentures of each series at the time Outstanding, on behalf of the Holders of
all the Debentures of such series, to waive compliance by the Company with
certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Debenture shall be conclusive and binding upon such Holder and upon all
future Holders of this Debenture and of any Debenture issued upon the
registration of transfer hereof or in
14
exchange herefor or in lieu hereof, whether or not notation of such consent or
waiver is made upon this Debenture.
As provided in and subject to the provisions of the Indenture, the
Holder of this Debenture shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to the
Debentures, the Holders of not less than 25% in principal amount of the
Debentures at the time Outstanding shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default as Trustee
and offered the Trustee reasonably satisfactory indemnity, and the Trustee shall
not have received from the Holders of a majority in principal amount of the
Debentures at the time Outstanding a direction inconsistent with such request,
and shall have failed to institute any such proceeding, for 60 days after
receipt of such notice, request and offer of indemnity. The foregoing shall not
apply to any suit instituted by the Holder of this Debenture for the enforcement
of any payment of principal hereof or any premium or interest hereon on or after
the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Debenture
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and any premium and
interest on this Debenture at the times, place and rate, and in the coin and
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Debenture is registrable in the Security
Register, upon surrender of this Debenture for registration of transfer at the
office or agency of the Company in any place where the principal of and any
premium and interest on this Debenture are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Debentures
and of like tenor, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Debentures are issuable only in registered form without coupons in
denominations of $100,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, the Debentures
are exchangeable for a like aggregate principal amount of Debentures and of like
tenor of a different authorized denomination, as requested by the Holder
surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Debenture for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Debenture is registered as the owner
hereof for all purposes, whether or not this Debenture be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this Debenture which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
In Witness Whereof, the Company has caused this instrument to be duly
executed.
15
RPM, INC.
By:
-----------------------
Authorized Signature
Attest:
- ------------------
[Assistant] Secretary
CERTIFICATE OF AUTHENTICATION
Dated:
This is one of the Debentures of the series designated therein referred
to in the within-mentioned Indenture.
THE FIRST NATIONAL BANK OF CHICAGO, as Trustee
By:
-----------------------------
Authorized Signature
16
ARTICLE THREE
Original Issue of Debentures
Section 301. Debentures in the aggregate principal amount of
$100,000,000, may, upon execution of this First Supplemental Indenture, or from
time to time thereafter, be executed by the Company and delivered to the Trustee
for authentication, and the Trustee shall thereupon authenticate and deliver
said Debentures upon a Company Order without any further action by the Company.
ARTICLE FOUR
Paying Agent and Security Registrar
Section 401. The First National Bank of Chicago will be the Paying
Agent and Security Registrar for the Debentures.
ARTICLE FIVE
Miscellaneous
Section 501. Except as otherwise expressly provided in this First
Supplemental Indenture or in the form of Debenture or otherwise clearly required
by the context hereof or thereof, all terms used herein or in said form of
Debenture that are defined in the Indenture shall have the several meanings
respectively assigned to them thereby.
Section 502. The Indenture, as supplemented by this First Supplemental
Indenture, is in all respects ratified and confirmed, and this First
Supplemental Indenture shall be deemed part of the Indenture in the manner and
to the extent herein and therein provided.
-----------------------
17
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed, and their respective corporate seals
to be hereunto affixed, all as of the day and year first above written.
[SEAL] RPM, INC.
Attest: /s/ Paul A. Granzier
Secretary By /s/ Frank C. Sullivan
----------------------------
Name:
Title:
[SEAL] THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
Attest:
By /s/ Steven M. Wagner
----------------------------
Name: Steven M. Wagner
Title: Vice President
18
STATE OF OHIO)
: SS.:
COUNTY OF CUYAHOGA)
On the 3rd day of March, 1998, before me personally came
Frank C. Sullivan, to me known, who, being by me duly sworn, did depose and say
that he is Executive Vice President of RPM, Inc. an Ohio corporation, one of the
persons described in and who executed the foregoing instrument; that he knows
the seal of said Corporation; that the seal affixed to said instrument is such
Corporation's seal; that it was so affixed by authority of the Board of
Directors of said Corporation; and that he signed his name thereto by like
authority.
/s/ Andrea J. Veneskey
----------------------
[NOTARIAL SEAL]
19
STATE OF ILLINOIS)
: SS.:
COUNTY OF COOK)
On the 4th day of March, 1998, before me personally came
Steven M. Wagner, to me known, who, being by me duly sworn, did depose and say
that he is a Vice President of The First National Bank of Chicago, a national
banking association organized and existing under the laws of the United States
of America, one of the persons described in and who executed the foregoing
instrument; that he knows the seal of said Corporation; that the seal affixed
to said instrument is such Corporation's seal; that it was so affixed by
authority of the Board of Directors of said Corporation; and that he signed his
name thereto by like authority.
/s/ Maria C. Birrueta
---------------------
Notary Public
[NOTARIAL SEAL]