FIRST SUPPLEMENTAL INDENTURE, dated as of April 26, 2007 (the “First Supplemental Indenture”), by and between The Toro Company, a corporation duly organized and existing under the laws of the State of Delaware (the “Company”), and The Bank of New York Trust Company, N.A., as trustee (the “Trustee”).
WHEREAS, the Company has heretofore executed and delivered its Indenture, dated as of April 20, 2007 (the “Base Indenture”) to the Trustee to provide for the future issuance of the Company’s unsecured debentures, notes, bonds or other evidences of indebtedness (the “Securities”), to be issued from time to time in one or more series and unlimited as to principal amount;
WHEREAS, the Company desires to provide for the establishment of a new series of its Securities to be known as its 6.625% Notes due May 1, 2037 (the “Notes”), which shall be in the form of unsecured and unsubordinated notes, with specific terms and provisions, the form and substance of such Notes and the terms, provisions and conditions thereof to be set forth as provided herein and in the Base Indenture;
WHEREAS, Section 9.01 of the Base Indenture provides that, without the consent of the Holders, the Company, when authorized by a Board Resolution, and the Trustee, at any time and from time to time, may enter into one or more indentures supplemental to the Base Indenture, in form satisfactory to the Trustee, to establish the form and terms of Securities of any series as permitted by Sections 2.01 and 3.01 thereof; and
WHEREAS, the Company has requested that the Trustee execute and deliver this First Supplemental Indenture, and all requirements necessary to make this First Supplemental Indenture a valid instrument in accordance with its terms, and to make the Notes, when executed by the Company and authenticated and delivered by the Trustee, the valid obligations of the Company, have been done and performed, and the execution and delivery of this First Supplemental Indenture have been duly authorized in all respects.
NOW THEREFORE, the Company and the Trustee, in consideration of the premises and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, hereby covenant and agree, for the equal and proportionate benefit of all Holders of Notes, as follows:
Section 1.01 Definitions. For all purposes of the Base Indenture and this First Supplemental Indenture relating to the series of Securities (consisting of the Notes) established hereby, except as otherwise expressly provided or unless the context otherwise requires:
(a) a term not defined herein that is defined in the Base Indenture has the same meaning when used in this First Supplemental Indenture;
(b) the definition of any term in this First Supplemental Indenture that is also defined in the Base Indenture shall supersede the definition of such term in the Base Indenture;
(c) a term defined anywhere in this First Supplemental Indenture has the same meaning throughout;
(d) the singular includes the plural and vice versa;
(e) headings are for convenience of reference only and do not affect interpretation;
(f) the following terms have the meanings given to them in this Section 1.01(f):
“Below Investment Grade Rating Event” means the Notes are rated below an Investment Grade Rating by both of the Rating Agencies (as defined below) on any date from the date of the public notice of an arrangement that could reasonably be expected to result in a Change of Control until the end of the 60-day period following public notice of the occurrence of the Change of Control (which 60-day 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).
“Change of Control” means the occurrence of any of the following: (1) the direct or indirect sale, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the properties or assets of the Company and its subsidiaries taken as a whole to any “person” (as that term is used in Section 13(d)(3) of the Exchange Act), other than the Company or one of its subsidiaries; (2) 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 then outstanding number of shares of the Company’s voting stock; or (3) the first day on which a majority of the members of the Company’s Board of Directors are not Continuing Directors; provided, however, that a transaction will not be deemed to involve a Change of Control if the Company becomes a wholly owned subsidiary of a holding company and 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. For purposes of the foregoing definition, “voting stock” means capital stock of any class or kind the holders of which are ordinarily, in the absence of contingencies, entitled to vote for the election of directors (or persons performing similar functions) of the Company, even if the right so to vote has been suspended by the happening of such a contingency.