FIRST SUPPLEMENTAL INDENTURE to the INDENTURE dated as of October 18, 2004
Exhibit
4.3
THE BLACK
& XXXXXX CORPORATION
AND
THE BANK
OF NEW YORK MELLON
as
Trustee
to
the
INDENTURE
dated as
of October 18, 2004
Dated as
of March 12, 2010
THIS
FIRST SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of March
12, 2010, is among THE BLACK & XXXXXX CORPORATION, a Maryland corporation
(the “Company”), XXXXXXX XXXXX & XXXXXX, INC. (formerly known as The Xxxxxxx
Works), a Connecticut corporation (the “Guarantor”), and THE BANK OF NEW YORK
MELLON (formerly known as The Bank of New York), as trustee (the
“Trustee”).
Witnesseth:
WHEREAS,
the Company has executed and delivered to the Trustee an Indenture, dated as of
October 18, 2004, between the Company and the Trustee (the “Indenture”),
providing for the issuance from time to time of one or more series of
Securities;
WHEREAS,
the Trustee has heretofore authenticated, and the Company has heretofore issued
$300,000,000 aggregate principal amount of 4.75% Notes due 2011 under the
Indenture (the “Outstanding Notes”);
WHEREAS,
on the date hereof, a wholly-owned subsidiary of the Guarantor will merge with
and into the Company with the Company as the survivor pursuant to that certain
Agreement and Plan of Merger, dated as of November 2, 2009, among the Company,
the Guarantor and Blue Xxx Acquisition Corp., the Company will become a
wholly-owned subsidiary of the Guarantor and the Guarantor will provide a full
and unconditional guarantee (the “Guarantee”) of the obligations of the Company
under the Outstanding Notes;
WHEREAS,
pursuant to Section 9.1(c) of the Indenture, the Trustee and the Company are
authorized to enter into a supplemental indenture, without prior notice to or
consent of any Holders of the Outstanding Notes, to add guarantees with respect
to any series of Securities;
WHEREAS,
this Supplemental Indenture has been duly authorized by all necessary corporate
action on the part of the Company and the Guarantor; and
NOW,
THEREFORE, in consideration of the covenants and agreements set forth herein and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto hereby agree as
follows:
The
amendment set forth below shall become effective upon the execution and delivery
of this Supplemental Indenture by the Company, the Guarantor and the
Trustee.
ARTICLE
1
GUARANTEE
Section
1.1. Amendments
to Indenture.
The
following Sections 11.1 through and including Section 11.8 shall be added as a
new Article 11 of the Indenture, and shall hereinafter be deemed a part of the
Indenture and applicable to the Outstanding Notes. The following
definition shall apply to Article 11 of the Indenture, as amended hereby:
“Guarantor” shall mean Xxxxxxx Xxxxx & Xxxxxx, Inc., a Connecticut
Corporation.
2
Section
11.1.
Guarantees.
With
respect to each series of Securities to which this Article 11 is expressly made
applicable, the Guarantor hereby unconditionally and irrevocably guarantees to
each Holder and to the Trustee and its successors and assigns (i)(a) the full
and punctual payment of principal and interest on the Securities of such Holder
when due, whether at maturity, by acceleration, by redemption or otherwise, and
all other monetary obligations of the Company to the Holders and the Trustee
under this Indenture and the Securities and (b) the full and punctual
performance within applicable grace periods of all other obligations of the
Company under this Indenture and the Securities and (ii) in the case of any
extension of time of payment or renewal of any Securities or any of such other
obligations, that the same will be promptly paid in full when due or performed
in accordance with the terms of the extension or renewal (all of the foregoing
being hereinafter collectively called the “Guarantees”).
The
Guarantor waives presentation to, demand of, payment from and protest to the
Company of any of the Guarantees and also waives notice of protest for
nonpayment. The Guarantor waives notice of any default under the
Securities or the Guarantees. The Guarantees hereunder shall not be
affected by (a) the failure of any Holder or the Trustee to assert any claim or
demand or to enforce any right or remedy against the Company or any other Person
under this Indenture, the Securities or any other agreement or otherwise; (b)
any extension or renewal of any thereof; (c) any rescission, waiver, amendment
or modification of any of the terms or provisions of this Indenture, the
Securities or any other agreement; (d) the release of any security held by any
Holder or the Trustee for the Guarantees or any of them; (e) the failure of any
Holder or Trustee to exercise any right or remedy against any other guarantor of
the Guarantees or (f) any change in the ownership of the Guarantor.
The
Guarantor further agrees that its Guarantees hereunder constitute a guarantee of
payment, performance and compliance when due (and not a guarantee of
collection).
The
Guarantor hereby agrees that its obligations hereunder shall be as principal and
not merely as surety, and shall be absolute and unconditional, irrespective of,
and shall be unaffected by, any invalidity, irregularity or failure to enforce
the provisions of any Security or this Indenture, or any waiver, modification,
consent or indulgence granted to the Company with respect thereto (unless the
same shall also be provided the Guarantor), by the Holder of any Security or the
Trustee, the recovery of any judgment against the Company or any action to
enforce the same, or any other circumstances which may otherwise
constitute a legal or equitable discharge of a surety or guarantor; provided
that, notwithstanding the foregoing, no such waiver, modification, indulgence or
circumstance shall, without the consent of the Guarantor, increase the principal
amount of a Security or the interest rate thereon or increase any premium
payable upon redemption thereof. The Guarantees shall not be subject
to any reduction, limitation, impairment or termination for any reason,
including any claim of waiver, release, surrender, alteration or compromise, and
shall not be subject to any defense of setoff, counterclaim, recoupment or
termination whatsoever or by reason of the invalidity, illegality or
unenforceability of the Guarantees or otherwise. Without limiting the
generality of the foregoing, the Guarantor covenants that the Guarantees shall
not be discharged or impaired or otherwise affected by the failure of any Holder
or the Trustee to assert any claim or demand or to enforce any remedy under this
Indenture, the Securities or any other agreement, by any waiver or modification
of any thereof, by any default, failure or delay, willful or otherwise, in the
performance of the obligations, or by any other act or thing or omission or
delay to do any other act or thing which may or might in any manner or to any
extent vary the risk of the Guarantor or would otherwise operate as a discharge
of the Guarantor as a matter of law or equity.
3
The
Guarantor further agrees that the Guarantees shall continue to be effective or
be reinstated, as the case may be, if at any time payment, or any part thereof,
of principal, premium, if any, or interest on any Security is rescinded or must
otherwise be restored by any Holder or the Trustee upon the bankruptcy or
reorganization of the Company or otherwise.
In
furtherance of the foregoing and not in limitation of any other right which any
Holder or the Trustee has at law or in equity against the Guarantor by virtue
hereof, upon the failure of the Company to pay the principal of, premium on, if
any, or interest on any Security when and as the same shall become due, whether
at maturity, by acceleration, by redemption or otherwise, or to perform or
comply with any other obligation under the Securities, the Guarantor hereby
promises to and will, upon receipt of written demand by the Trustee, forthwith
pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal
to the sum of (i) the unpaid amount of such obligations under such Securities,
(ii) accrued and unpaid interest on such obligations under such Securities (but
only to the extent not prohibited by law) and (iii) all other monetary
obligations with respect to such Securities of the Company to the Holders and
the Trustee.
The
Guarantor will be subrogated to all rights of the Holders against the Company in
respect of any amount paid by the Guarantor pursuant to the provisions of the
Guarantee; provided, however, that the Guarantor shall not be entitled to
enforce, or to receive any payments arising out of or based upon, such right of
subrogation until the principal of, premium on, if any, and interest on such
Securities shall have been paid in full. The Guarantor further agrees that, as
between it, on the one hand, and the Holders and the Trustee, on the other hand,
(x) the maturity of the obligations with respect to the Securities hereby may be
accelerated as provided herein, notwithstanding any stay, injunction or other
prohibition preventing such acceleration in respect of the obligations with
respect to such Securities, and (y) in the event of any declaration of
acceleration of such obligations as provided herein, the Guarantees (whether or
not due and payable) shall forthwith become due and payable by the Guarantor for
the purposes of this Article 11.
The
Guarantor also agrees to pay any and all costs and expenses (including
reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder
in enforcing any rights under this Article 11.
Section
11.2.
Successors and
Assigns.
This
Article 11 shall be binding upon the Guarantor and its successors and assigns
and shall inure to the benefit of the successors and assigns of the Trustee and
the Holders and, in the event of any transfer or assignment of rights by any
Holder or the Trustee, the rights and privileges conferred upon that party in
this Indenture and in the Securities shall automatically extend to and be vested
in such transferee or assignee, all subject to the terms and conditions of this
Indenture.
4
Section
11.3.
No
Waiver.
Neither a
failure nor a delay on the part of either the Trustee or the Holders in
exercising any right, power or privilege under this Article 11 shall operate as
a waiver thereof, nor shall a single or partial exercise thereof preclude any
other or further exercise of any right, power or privilege. The
rights, remedies and benefits of the Trustee and the Holders herein expressly
specified are cumulative and not exclusive of any other rights, remedies or
benefits which either may have under this Article 11 at law, in equity, by
statute or otherwise.
Section
11.4.
Modification.
No
modification, amendment or waiver of any provision of this Article 11, nor the
consent to any departure by the Guarantor therefrom, shall in any event be
effective unless the same shall be in writing and signed by the Trustee, and
then such waiver or consent shall be effective only in the specific instance and
for the purpose for which given. No notice to or demand on the
Guarantor in any case shall entitle the Guarantor to any other or further notice
or demand in the same, similar or other circumstances.
Section
11.5.
Notation of Guarantee
Not Required.
The
Guarantor hereby agrees that the Guarantee set forth in this Article 11 shall
remain in full force and effect notwithstanding the absence on any Security of a
notation relating to the Guarantee.
Section
11.6.
Benefits
Acknowledged.
The
Guarantor acknowledges that it will receive direct and indirect benefits from
the financing arrangements contemplated by this Indenture and that the guarantee
and waivers made by it pursuant to its Guarantee are knowingly made in
contemplation of such benefits.
Section
11.7.
Release of
Guarantee.
Provided
that no notice that a Default or Event of Default has occurred and is continuing
has been delivered to the Holders, the Guarantee shall be automatically and
unconditionally released and discharged, and no further action by the Guarantor,
the Company or the Trustee is required for the release of the Guarantee, upon
the Company delivering to the Trustee an Officers’ Certificate stating that the
Guarantee is released in full.
Section
11.8.
Limitation on Guarantor
Liability.
The
Guarantor, and by its acceptance of Securities, each Holder, hereby confirms
that it is the intention of all such parties that the Guarantee of the Guarantor
not constitute a fraudulent transfer or conveyance for purposes of Title 11,
U.S. Code or any similar federal or state law for the relief of debtors, the
Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any
similar federal or state law to the extent applicable to the Guarantee. To
effectuate the foregoing intention, the Trustee, the Holders and the Guarantor
hereby irrevocably agree that the obligations of the Guarantor shall be limited
to the maximum amount as will, after giving effect to such maximum amount and
all other contingent and fixed liabilities of the Guarantor that are relevant
under such laws and after giving effect to any collections from, result in the
obligations of the Guarantor under its Guarantee not constituting a fraudulent
conveyance or fraudulent transfer under applicable law.
5
ARTICLE
2
MISCELLANEOUS
Section 2.1 Effect
of Guarantee; Guarantor to be Bound by Indenture.
The
Guarantor hereby irrevocably fully and unconditionally Guarantees to each Holder
of Outstanding Notes and to the Trustee and its successors and assigns,
irrespective of the validity and enforceability of the Indenture, any
Outstanding Notes or the obligations of the Company under the Indenture or any
Outstanding Notes, the obligations of the Company with respect to payment and
performance of each Outstanding Note and the other obligations of the Company
under the Indenture with respect to the Outstanding Notes on the terms, and
subject to the conditions, contained in Article 11 of the Indenture (as amended
by this Supplemental Indenture) and agrees to be bound by all other terms of the
Indenture.
Section
2.2. Effect
of Supplemental Indenture.
Upon the
execution and delivery of this Supplemental Indenture by the Company, the
Guarantor and the Trustee, the Indenture and each of the Outstanding Notes shall
be supplemented in accordance herewith, and this Supplemental Indenture shall
form a part of the Indenture for all purposes, and every Holder of Outstanding
Notes heretofore or hereafter authenticated and delivered under the Indenture
shall be bound thereby.
Section 2.3. Ratification
of Indenture.
Except as
supplemented hereby, all provisions in the Indenture and each of the Outstanding
Notes shall remain in full force and effect. This Supplemental
Indenture is an indenture supplemental to and in implementation of the
Indenture, and the Indenture, the Outstanding Notes and this Supplemental
Indenture shall henceforth be read and construed together. The
Indenture and the Outstanding Notes, as supplemented by this Supplemental
Indenture, shall in all respects remain in full force and effect.
Section
2.4. Trustee
Not Responsible For Recitals; Reaffirmation of Indemnity.
(a) The
recitals herein contained are made by the Company and the Guarantor and not by
the Trustee, and the Trustee assumes no responsibility for the correctness
thereof. The Trustee makes no representation as to the validity or sufficiency
of this Supplemental Indenture.
6
(b) The
Company hereby reaffirms its indemnification obligations to the Trustee pursuant
to Section 7.7 of the Indenture in connection with the Trustee’s execution of
this Supplemental Indenture.
Section 2.5
Conflict
with Trust Indenture Act.
If any
provision of this Supplemental Indenture limits, qualifies or conflicts with any
provision of the Trust Indenture Act that is required under the Trust Indenture
Act to be part of and govern any provision of this Supplemental Indenture, the
provision of the Trust Indenture Act shall control. If any provision
of this Supplemental Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the provision of the Trust
Indenture Act shall be deemed to apply to the Indenture as so modified or to be
excluded by this Supplemental Indenture, as the case may be.
Section
2.6. Terms
Defined in the Indenture.
All
capitalized terms not otherwise defined herein shall have the meanings ascribed
to them in the Indenture.
Section
2.7. New
York Law to Govern.
THIS
SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAW
PROVISIONS THEREOF TO THE EXTENT A DIFFERENT LAW WOULD GOVERN AS A
RESULT.
Section
2.8. Severability.
In case
any one or more of the provisions contained in this Supplemental Indenture, or
in the Indenture or Outstanding Notes as supplemented by this Supplemental
Indenture, shall for any reason be held to be invalid, illegal or unenforceable
in any respect, then, to the extent permitted by law, such invalidity,
illegality or unenforceability shall not affect any other provisions of this
Supplemental Indenture, the Indenture or the Outstanding Notes, but this
Supplemental Indenture, the Indenture and the Outstanding Notes shall be
construed as if such invalid or illegal or unenforceable provision had never
been contained herein or therein.
Section 2.9. Counterparts.
This
Supplemental Indenture may be executed in any number of counterparts each of
which shall be an original, but such counterparts shall together constitute but
one and the same instrument.
* * * * *
7
IN
WITNESS WHEREOF, the parties hereto have caused this First Supplemental
Indenture to be duly executed as of the day and year first above
written.
| THE BLACK & XXXXXX CORPORATION | |||
|
|
By:
|
/s/ Xxxx X. Xxxxxxxxxxx | |
| Name: Xxxx X. Xxxxxxxxxxx | |||
| Title: Assistant Treasurer | |||
|
XXXXXXX
XXXXX & XXXXXX, INC.
|
|||
|
|
By:
|
/s/ Xxxxx X. Xxxxxxx | |
| Name: Xxxxx X. Xxxxxxx | |||
| Title: Vice President and Treasurer | |||
|
THE
BANK OF NEW YORK MELLON, as Trustee
|
|||
|
|
By:
|
/s/ Xxxxxx X. Xxxxxx | |
| Name: Xxxxxx X. Xxxxxx | |||
| Title: Vice President | |||
