THE BLACK & DECKER CORPORATION AND THE BANK OF NEW YORK MELLON as Trustee
Exhibit
4.2
THE BLACK
& XXXXXX CORPORATION
AND
THE BANK
OF NEW YORK MELLON
as
Trustee
to
the
INDENTURE
dated as
of November 16, 2006
Dated as
of March 12, 2010
THIS
THIRD 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
November 16, 2006, between the Company and the Trustee (as amended, the
“Indenture”), providing for the issuance from time to time of one or more series
of Debt Securities;
WHEREAS,
the Trustee has heretofore authenticated, and the Company has heretofore issued,
(a) $300,000,000 aggregate principal amount of 5.75% Notes due 2016 (the “2016
Notes”) and (b) $350,000,000 aggregate principal amount of 8.95% Notes due 2014
(the “2014 Notes”), in each case under the Indenture (collectively, 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 Debt 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 each series of 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.
Section
11.1. Guarantees.
With
respect to each series of Debt 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 Debt 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 Debt Securities and (b) the full and
punctual performance within applicable grace periods of all other obligations of
the Company under this Indenture and the Debt Securities and (ii) in the case of
any extension of time of payment or renewal of any Debt 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 Debt
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 Debt 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 Debt 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 Debt 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
Debt 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 Debt 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 Debt
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.
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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 Debt 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 Debt 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 Debt 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
Debt Securities, (ii) accrued and unpaid interest on such obligations under such
Debt Securities (but only to the extent not prohibited by law) and (iii) all
other monetary obligations with respect to such Debt 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
Debt 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 Debt 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 Debt 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 Debt Securities shall automatically extend to and be
vested in such transferee or assignee, all subject to the terms and conditions
of this Indenture.
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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 Debt 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 Debt 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
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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.
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.
5
(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.
* * * * *
6
IN
WITNESS WHEREOF, the parties hereto have caused this Third 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 TRUST COMPANY, N.A.,
as Trustee |
|||
|
|
By:
|
/s/ Xxxxxx X. Xxxxxx | |
| Name: Xxxxxx X. Xxxxxx | |||
| Title: Vice President | |||
