THE BLACK & DECKER CORPORATION AND THE BANK OF NEW YORK, AS TRUSTEE FIRST SUPPLEMENTAL INDENTURE Dated as of November 16, 2006
EXHIBIT
4.6(a)
THE
BLACK & XXXXXX CORPORATION
THE BANK OF NEW YORK,
AS
TRUSTEE
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Page
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ARTICLE
I. DEFINITIONS; INCORPORATION BY REFERENCE
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SECTION
1.1
SECTION
1.2
SECTION
1.3
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DEFINITIONS
INCORPORATION
BY REFERENCE OF TRUST INDENTURE ACT
RULES
OF CONSTRUCTION
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1
2
2
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ARTICLE
II. THE NOTES
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SECTION
2.1
SECTION
2.2
SECTION
2.3
SECTION
2.4
SECTION
2.5
SECTION
2.6
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DESIGNATION
PRINCIPAL
AMOUNT; SERIES TREATMENT
PAYMENT
OF PRINCIPAL AND INTEREST
FORM
TRANSFER
RESTRICTIONS
SINKING
FUND
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2
2
3
3
4
5
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ARTICLE
III. OPTIONAL REDEMPTION OF THE NOTES; CHANGE OF CONTROL REPURCHASE
EVENT
ARTICLE
V. MISCELLANEOUS
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SECTION
5.1
SECTION
5.2
SECTION
5.3
SECTION
5.4
SECTION
5.5
SECTION
5.6
SECTION
5.7
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RATIFICATION
TRUSTEE
GOVERNING
LAW
TABLE
OF CONTENTS; HEADINGS
MULTIPLE
ORIGINALS
SEVERABILITY
EFFECTIVE
DATE
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5
5
5
5
6
6
6
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FIRST SUPPLEMENTAL INDENTURE, dated as
of November 16, 2006 (this “Supplemental
Indenture”), between THE BLACK & XXXXXX CORPORATION, a Maryland
corporation (the “Company”), and THE
BANK OF NEW YORK, a New York banking corporation, as Trustee.
A.
The Company and the Trustee have executed an indenture, dated as of
November 16, 2006 (the “Indenture”), to
provide for, among other things, the issuance from time to time of the Company’s
Debt Securities in one or more series as might be authorized under the
Indenture.
B.
The Indenture provides that the Company and the Trustee may enter into an
indenture supplemental thereto to establish the form and terms of any series of
Debt Securities as provided by Sections 2.1 and
2.3 of the
Indenture.
C.
The Company has duly authorized and desires to enter into this Supplemental
Indenture to provide for the establishment of Debt Securities to be known as the
5.750% Senior Notes due 2016 (the “Notes”), the form,
substance, terms, provisions and conditions of which shall be set forth in the
Indenture and this Supplemental Indenture.
D.
The Company has requested that the Trustee execute and deliver this Supplemental
Indenture and satisfy all requirements necessary to make (i) this Supplemental
Indenture a valid instrument in accordance with its terms and (ii) the Debt
Securities provided for hereby, when executed and delivered by the Company and
authenticated by the Trustee, the valid obligations of the Company.
NOW THEREFORE, each party agrees as
follows for the benefit of the other parties and for the equal and ratable
benefit of the Holders of the Notes:
Definitions; Incorporation
by Reference
SECTION 1.1 Definitions.
“DTC” means The
Depository Trust Company, its nominees and their respective successors and
assigns, or such other depository institution hereinafter appointed by the
Company.
“Global Notes” shall
have the meaning set forth in Section
2.4(b).
“Indenture” shall have
the meaning set forth in the first recital.
“Initial Notes” shall
have the meaning set forth in Section
2.2(a).
“Notes” shall have the
meaning set forth in the third recital.
“Supplemental
Indenture” shall have the meaning set forth in the introductory
paragraph.
SECTION 1.2 Incorporation by Reference
of Trust Indenture Act. This Supplemental Indenture is subject to the
mandatory provisions of the TIA, which are incorporated by reference in and made
a part of this Supplemental Indenture. All TIA terms used in this Supplemental
Indenture that are defined by the TIA, defined in the TIA by reference to
another statute or defined by SEC rule have the meanings assigned to them by
such definitions.
SECTION 1.3 Rules of
Construction.
(a) Unless
otherwise indicated, capitalized terms that are not defined herein shall have
the meanings given to them in the Indenture.
(b) Unless
the context otherwise requires:
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(i)
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a
term has the meaning assigned to it;
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(ii)
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an
accounting term not otherwise defined has the meaning assigned to it in
accordance with U.S. GAAP;
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(iii)
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“or”
is not exclusive;
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(iv)
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“including”means
including without limitation;
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(v)
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words
in the singular include the plural and words in the plural include the
singular;
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(vi)
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the
principal amount of any noninterest bearing or other discount security at
any date shall be the principal amount thereof that would be shown on a
balance sheet of the issuer dated such date prepared in accordance with
U.S. GAAP; and
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(vii)
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unless
otherwise indicated, all references to Articles or Sections refer to
Articles or Sections of this Supplemental
Indenture.
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ARTICLE
II
The
Notes
SECTION 2.1 Designation. The
Company hereby establishes a series of Debt Securities designated the “5.750%
Senior Notes due 2016” for issuance under the Indenture.
SECTION 2.2 Principal Amount; Series
Treatment.
(a) The
Notes shall initially be limited to an aggregate principal amount of
$300,000,000 (the “Initial Notes”). The Company may, from time to time without
the consent of the Holders of the outstanding Notes, issue additional
Notes, so that such additional Notes and the outstanding Notes shall be
consolidated together and form a single series of Debt Securities under the
Indenture, as supplemented by this Supplemental Indenture. For all purposes of
the Indenture and this Supplemental Indenture, all Notes, whether Initial Notes
or additional Notes, shall constitute one series of Debt Securities and shall
vote together as one series of Debt Securities.
2
(b) Any
additional Notes issued under Section 2.2(a)
shall have the same terms in all respects as the corresponding series of Notes,
except that interest will accrue on the additional Notes from the most recent
date to which interest has been paid on the Notes of such series (other than the
additional Notes) or if no interest has been paid on the outstanding Notes of
such series from the first date that the outstanding Notes were originally
issued under the Indenture, as supplemented by this Supplemental
Indenture.
(c) The
Notes shall be issued only in fully registered form, without coupons, and only
in minimum denominations of $1,000 and integral multiples thereof.
SECTION 2.3 Payment of Principal and
Interest. The principal amount of each Note shall be due and payable on
November 15, 2016.
The Notes will bear interest at the
rate of 5.750% per annum from November 16, 2006 until the principal thereof
becomes due and payable or to the date of redemption (if any) of the Notes, such
interest to be payable semi-annually in arrears on May 15 and November 15 of
each year, to the Holders of record of the Notes as of the close of business on
the May 1 and November 1 preceding such interest payment dates, commencing, in
the case of the Initial Notes or any additional Notes issued prior to such date,
on May 15, 2007.
Any payment of principal or interest
required to be made on a day that is not a Business Day 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 such day and no interest shall accrue as a result of such
delayed payment.
SECTION 2.4 Form.
(a) The
Notes shall contain the terms set forth in, and shall be substantially in the
form of, Exhibit A. The
terms and provisions contained in the form of Notes set forth in Exhibit A shall
constitute, and are hereby expressly made, a part of the Indenture, as
supplemented by this Supplemental Indenture.
The Notes shall have such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by the Indenture, as supplemented by this Supplemental Indenture, and
may have such letters, numbers or other marks of identification and such legends
or endorsements imprinted or otherwise reproduced thereon, not inconsistent with
the provisions of the Indenture, as supplemented by this Supplemental Indenture,
as may be required to comply with any law, or with any rules of any securities
exchange, all as may, consistently herewith, be determined by the Officers
executing the Notes as evidenced by their execution of the Notes.
3
(b) The
Company initially appoints DTC to act as Depositary with respect to the Notes
issued in the form of Global Securities.
So long as the Notes are eligible for
book-entry settlement with DTC, or unless otherwise required by law, or
otherwise contemplated herein, all of the Notes shall be represented by one or
more Notes in global form registered in the name of DTC or its
nominee.
The Notes shall be issued initially in
the form of one or more permanent Global Securities in registered form,
substantially in the form set forth in Exhibit A (the
“Global
Notes”), registered in the name of Cede & Co., the nominee of DTC,
upon Company Order, deposited with the Trustee, as custodian for DTC or its
nominee, duly executed by the Company and authenticated by the Trustee as
hereinafter provided. The aggregate principal amount of the Global Notes may
from time to time be increased or decreased by adjustments made on the records
of the Trustee, as custodian for DTC or its nominee, in accordance with the
instructions given by the Holder thereof, as hereinafter provided.
The transfer and exchange of beneficial
interests in any such Global Notes shall be effected through DTC in accordance
with this Supplemental Indenture, the Indenture and DTC’s applicable procedures.
Except as provided in the Indenture, beneficial owners of a Global Note shall
not be entitled to have certificates registered in their names, will not receive
or be entitled to receive physical delivery of certificates in definitive form
and will not be considered Holders of such Global Note.
Any Global Note shall represent such of
the outstanding Notes as shall be specified therein and shall provide that it
shall represent the aggregate amount of outstanding Notes from time to time
endorsed thereon and that the aggregate amount of outstanding Notes represented
thereby may from time to time be increased or reduced to reflect redemptions,
transfers or exchanges permitted hereby. Any endorsement of a Global Note to
reflect the amount of any increase or decrease in the amount of outstanding
Notes represented thereby shall be made by the Trustee in such manner and upon
written instructions given by the Holder of such Notes in accordance with the
Indenture and this Supplemental Indenture. Payment of principal of and interest
and premium, if any, on any Global Note shall be made to the Holder of such
Note.
SECTION 2.5 Transfer
Restrictions. The following provisions shall apply only to the Global
Notes:
(a) Each
Global Note authenticated under this Supplemental Indenture shall be registered
in the name of DTC or its nominee and delivered to DTC or its nominee or to the
Trustee if the Trustee is acting as custodian for DTC or its nominee with
respect to such Global Note, and each such Global Note shall constitute a single
Note for all purposes of the Indenture and this Supplemental
Indenture.
(b) Notwithstanding
any other provision in this Supplemental Indenture, no Global Note may be
exchanged in whole or in part for Notes registered, and no transfer of a Global
Note in whole or in part may be registered, in the name of any Person other than
DTC or its nominee except as provided in Section 2.4 of the Indenture. Any
Note issued in exchange for a Global Note or any portion thereof shall be a
Global Note; provided that any such Note so issued that is registered in the
name of a Person other than DTC or its nominee shall not be a Global
Note.
4
(c) Notes
issued in exchange for a Global Note or any portion thereof pursuant to clause
(b) above shall be issued pursuant to Section 2.4 of the
Indenture.
(d) At
such time as all interests in a Global Note have been redeemed, repurchased,
converted, canceled or exchanged for Notes in definitive form, such Global Note
shall, upon receipt thereof, be canceled by the Trustee in accordance with
standing procedures and instructions existing between DTC and the Trustee. At
any time prior to such cancellation, if any interest in a Global Note is
redeemed, repurchased, converted, canceled or exchanged for Notes in definitive
form, the principal amount of such Global Note shall, in accordance with the
standing procedures and instructions existing between DTC and the Trustee, be
appropriately reduced, and an endorsement shall be made on such Global Note, by
the Trustee, at the direction of the Trustee, to reflect such
reduction.
SECTION 2.6 Sinking Fund. The
Notes shall not be subject to a sinking fund.
Optional Redemption of the
Notes; Change of Control Repurchase Event
The Notes
may be redeemed at the option of the Company on the terms and conditions set
forth in the form of Note set forth in Exhibit A. In
the event of a Change of Control Repurchase Event (as defined in Exhibit A) the
Company will offer to repurchase the Notes on the terms and conditions set forth
in the form of Note set forth in Exhibit
A.
Execution of the
Notes
The
Notes, the Company Order and any Officers’ Certificates to be delivered under
the Indenture in connection with the authentication and delivery of the Notes
shall be executed and delivered as set forth in the Indenture.
Miscellaneous
SECTION 5.1 Ratification. The
Indenture, as supplemented by this Supplemental Indenture, is in all respects
ratified and confirmed, and this Supplemental Indenture shall be deemed part of
the Indenture in the manner and to the extent herein and therein
provided.
SECTION 5.2 Trustee. The Trustee
shall not be responsible in any manner whatsoever for or in respect of the
validity or sufficiency of this Supplemental Indenture or for or in respect of
the recitals contained herein, all of which recitals are made solely by the
Company.
SECTION 5.3 Governing Law. THIS SUPPLEMENTAL INDENTURE AND THE
NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK.
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SECTION 5.4 Table of Contents;
Headings. The table of contents and headings of the Articles and Sections
of this Supplemental Indenture have been inserted for convenience of reference
only, are not intended to be considered a part hereof and shall not modify or
restrict any of the terms or provisions hereof.
SECTION 5.5 Multiple Originals.
The parties may sign any number of copies of this Supplemental Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement. One signed copy is enough to prove this Supplemental
Indenture.
SECTION 5.6 Severability. A
determination that any provision of this Supplemental Indenture is unenforceable
or invalid shall not affect the enforceability or validity of any other
provision hereof.
SECTION 5.7 Effective Date. This
Supplemental Indenture shall be effective pursuant to Section 9.1 of the
Indenture immediately upon execution by the Company and delivery to and
execution by the Trustee of this Supplemental Indenture.
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IN WITNESS WHEREOF, the parties have
caused this Supplemental Indenture to be duly executed as of the date first
written above.
| THE BLACK &DECKER CORPORATION | |||
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By:
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/s/ Xxxxxxx X. Xxxxxx | |
| Name: Xxxxxxx X. Xxxxxx | |||
| Title: Senior Vice President and General Counsel | |||
| THE BANK OF NEW YORK, as Trustee | |||
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By:
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/s/ Xxxxxxxxx Xxxxx | |
| Name: Xxxxxxxxx Xxxxx | |||
| Title: Assistant Vice President | |||
7
EXHIBIT A
[FORM OF
FACE OF NOTE]
[Global
Notes shall bear the following legend]
[THIS
SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY
(“DTC”), AS DEPOSITARY, OR A NOMINEE OF DTC. TRANSFERS OF THIS GLOBAL NOTE SHALL
BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A
SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS
GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE
HEREOF.
Unless this certificate is presented by
an authorized representative of DTC, to the Company or its agent for
registration of transfer, exchange or payment, and any certificate issued is
registered in the name of Cede & Co., or such other name as requested by an
authorized representative of DTC (and any payment is made to Cede & Co. or
to such other entity as is required by an authorized representative of DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an
interest herein.]
A-1
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No.___
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Principal
Amount $300,000,000,
as
revised by the Schedule of
Increases
and Decreases in
Global
Security attached hereto
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ISIN:
____________
The Black & Xxxxxx Corporation, a
Maryland corporation, promises to pay to Cede & Co., or registered assigns,
the principal sum of $300,000,000 Dollars, as revised by the Schedule of
Increases and Decreases in Global Security attached hereto, on November 15,
2016.
Interest Payment Dates: May 15 and
November 15
Record Dates: May 1 and November
1
Additional provisions of this Note are
set forth on the other side of this Note.
| THE BLACK &DECKER CORPORATION | |||
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By:
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/s/ | |
| Name: | |||
| Title: | |||
TRUSTEE’S
CERTIFICATE OF
AUTHENTICATION
The Bank
of New York, as Trustee,
certifies
that this is one of the Debt
Securities
referred to in the Indenture.
| By: | |
| Authorized Signatory | |
| Date: |
A-2
[FORM OF
REVERSE SIDE OF NOTE]
5.750%
Senior Notes Due 2016
This Note is one of a duly authorized
issue of Debt Securities of The Black & Xxxxxx Corporation, a Maryland
corporation (such corporation, and its successors and assigns under the
Indenture hereinafter referred to, being herein called the “Company”), of the
series hereinafter specified, all issued or to be issued pursuant to an
indenture, dated as of November 16, 2006, as amended and supplemented by the
First Supplemental Indenture, dated as of November 16, 2006 (together referred
to herein as the “Indenture”), between
the Company and The Bank of New York, a New York banking corporation, as trustee
(the “Trustee,”
which term includes any successor Trustee under the Indenture), to which
Indenture and all indentures supplemental thereto reference is hereby made for a
description of the rights, limitations of rights, obligations, duties and
immunities thereunder of the Trustee, the Company and the Holders of the Debt
Securities. To the extent terms of the Indenture and this Note are inconsistent,
the terms of the Indenture shall govern. This Note is one of a series of Debt
Securities of the Company designated as the 5.750% Senior Notes due 2016 (the
“Notes”),
initially limited in aggregate principal amount of $300,000,000, subject to the
issuance of additional Notes as provided in the Indenture. Terms used but not
defined herein shall have the respective meanings set forth in the
Indenture.
1. Interest. The Company
promises to pay interest on the principal amount of this Debt Security at the
rate per annum shown above.
The Company will pay interest
semiannually on May 15 and November 15 of each year commencing May 15, 2007.
Interest on the Notes will accrue from the most recent date to which interest
has been paid on the Notes or, if no interest has been paid, from November 16,
2006. The Company shall pay interest on overdue principal or premium, if any
(plus interest on such interest to the extent lawful), at the rate borne by the
Notes to the extent lawful. Interest will be computed on the basis of a 360-day
year of twelve 30-day months.
2. Method of Payment. By
at least 10:00 a.m. (New York City time) on the date on which any principal of
or interest on any Note is due and payable, the Company shall deposit with the
Trustee or the Paying Agent money sufficient to pay such principal, premium, if
any, and/or interest when due. The Company will pay interest (except Defaulted
Interest) to the Persons who are registered Holders of Notes at the close of
business on May 1 or November 1 next preceding the interest payment date even if
Notes are cancelled, repurchased or redeemed after the record date and on or
before the interest payment date. Holders must surrender Notes to a Paying Agent
to collect principal payments. The Company will pay principal and interest in
money of the United States that at the time of payment is legal tender for
payment of public and private debts. Except as described in the succeeding two
sentences, the principal of, premium, if any, and interest on the Notes shall be
payable at the office or agency of the Company maintained for such purpose
pursuant to Section 3.4 of the Indenture; provided, however, that, at
the option of the Company, each installment of interest may be paid by check
mailed to addresses of the Persons entitled thereto as such addresses shall
appear on the Security Register. Payments in respect of Notes represented by a
Global Note (including principal, premium, if any, and interest) will be made by
wire transfer of immediately available funds to the accounts specified by the
Depositary. Payments in respect of Notes represented by definitive Notes
(including principal, premium, if any, and interest) held by a Holder of at
least $1,000,000 aggregate principal amount of Notes represented by definitive
Notes will be made by wire transfer to a U.S. dollar account maintained by the
payee with a bank in the United States if such Holder elects payment by wire
transfer by giving written notice to the Trustee or the Paying Agent to such
effect designating such account no later than 15 days immediately preceding the
relevant due date for payment (or such other date as the Trustee may accept in
its discretion).
A-3
Any payment of principal or interest
required to be made on a day that is not a Business Day 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 such day and no interest shall accrue as a result of such
delayed payment. As used in this Note, the term “Business Day” means a
day other than a Saturday, Sunday or other day on which commercial banking
institutions are authorized or required by law to close in the City of New
York.
3. Paying Agent and
Registrar. Initially, the Trustee will act as Trustee, Paying Agent and
Registrar. The Company may appoint and change any Paying Agent, Registrar or
co-registrar without notice to any Holder. The Company or any of its
Subsidiaries may act as Paying Agent, Registrar or co-registrar.
4. Indenture. The
Company issued the Notes under the Indenture. The terms of the Notes include
those stated in the Indenture and those made part of the Indenture by reference
to the Trust Indenture Act of 1939 (15 U.S.C.
§§ 77aaa-77bbbb) as in effect on the date of the Indenture (the “Act”).
Capitalized terms used herein and not defined herein have the meanings ascribed
thereto in the Indenture. The Notes are subject to all such terms, and Holders
are referred to the Indenture and the Act for a statement of those terms. In the
event of any inconsistency between the terms of this Note and the terms of the
Indenture, the terms of the Indenture shall control.
The
Notes are general unsecured and unsubordinated obligations of the Company
initially limited to $300,000,000 aggregate principal amount of Notes and will
rank equally with all of the Company’s existing and future unsecured and
unsubordinated indebtedness. The Company may at any time issue additional Notes
under the Indenture in unlimited amounts having the same terms as and treated as
a single class with the Notes for all purposes under the Indenture and will vote
together as one class with respect to the Notes. This Note is one of the Debt
Securities referred to in the Indenture. The Indenture imposes certain
limitations on, among other things the incurrence of certain liens and
sale-leaseback transactions by the Company or its Subsidiaries and
consolidations, mergers and sales of assets of the Company.
5. Redemption; Change of
Control Repurchase Event. The Notes will be redeemable, in whole or in
part, at any time, at the option of the Company, upon not less than 30 and not
more than 60 days prior notice mailed by first-class mail to each Holder of
Notes to be so redeemed at such Holder’s registered address, at a redemption
price equal to the greater of
o 100%
of the principal amount of the Notes to be redeemed; or
A-4
o the
sum of the present values of the remaining scheduled payments of principal of
and interest on the Notes to be redeemed, exclusive of interest accrued to the
redemption date, discounted to the redemption date on a semiannual basis
(assuming a 360-day year consisting of twelve 30-day months) at the Adjusted
Treasury Rate (as defined below), plus 20 basis points, as calculated by an
Independent Investment Banker;
plus, in either case, accrued and
unpaid interest on the principal amount of the Notes to be redeemed to the
redemption date.
For purposes of determining the
optional redemption price, the following definitions are
applicable:
“Adjusted Treasury
Rate” means,
with respect to any redemption date for the Notes,
o the
yield, under the heading that represents the average for the immediately
preceding week, appearing in the most recently published statistical release
designated “H.15(519)” or any successor publication that is published weekly by
the Board of Governors of the Federal Reserve System and that establishes yields
on actively traded U.S. Treasury securities adjusted to constant maturity under
the caption “Treasury Constant Maturities,” for the maturity corresponding to
the Comparable Treasury Issue (if no maturity is within three months before or
after the applicable maturity date, yields for the two published maturities most
closely corresponding to the Comparable Treasury Issue shall be determined and
the Adjusted Treasury Rate shall be interpolated or extrapolated from such
yields on a straight line basis, rounding to the nearest month); or
o if
such release (or any successor release) is not published during the week
preceding the calculation date or does not contain such yields, the rate per
annum equal to the semi-annual equivalent yield to maturity of the Comparable
Treasury Issue, calculated using 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.
The Adjusted Treasury Rate shall be
calculated on the third business day preceding the redemption date.
“Comparable Treasury Issue” means the
U.S. Treasury security selected by an Independent Investment Banker 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 applicable to the Notes (1) the average of four
Reference Treasury Dealer Quotations obtained by the Trustee for such redemption
date, after excluding the highest and lowest of such Reference Treasury Dealer
Quotations; or (2) if the Trustee obtains fewer than four such Reference
Treasury Dealer Quotations, the average of all such Reference Treasury Dealer
Quotations obtained by the Trustee.
A-5
“Independent Investment Banker” means
one of the Reference Treasury Dealers appointed by the Trustee after
consultation with the Company; provided that the Trustee will not be liable for
any errors and omissions of the Independent Investment Banker.
“Reference Treasury Dealer” means (1)
Banc of America Securities LLC, Citigroup Global Markets Inc. and X.X. Xxxxxx
Securities Inc. (or their respective 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 (2) one other Primary Treasury
Dealer appointed by the Trustee after consultation with the Company; provided
that the Trustee will not be liable for any errors and omissions of such Primary
Treasury Dealer.
“Reference Treasury Dealer Quotations”
means, with respect to each Reference Treasury Dealer and any redemption date,
the average, as determined by the Trustee, of the bid and asked prices for the
Comparable Treasury Issue for the Notes, expressed in each case as a percentage
of its principal amount, quoted in writing to the Trustee by such Reference
Treasury Dealer at 5:00 p.m., New York City time, on the third business day
preceding such redemption date.
In the case of any partial redemption,
selection of the Notes for redemption will be made by the Trustee at least 30
and not more than 60 days prior to the redemption date and by such method as the
Trustee shall deem to be fair and appropriate (and in such manner as complies
with applicable legal requirements) provided that (i) the Notes and portions
thereof that the Trustee selects shall be in amounts of $1,000 or an integral
multiple of $1,000 and (ii) no such partial redemption shall reduce the portion
of the principal amount of a Note not redeemed to less than $1,000. Notice of
such redemption will be given within this period of time in accordance with the
Indenture. If any Note is to be redeemed in part only, the notice of redemption
relating to such Note shall state the portion of the principal amount thereof to
be redeemed. A new Note in principal amount equal to the unredeemed portion
thereof will be issued in the name of the Holder thereof upon cancellation of
the original Note. On and after the redemption date, interest will cease to
accrue on the Notes or portions thereof called for redemption as long as the
Company has deposited with the Trustee or with a Paying Agent (or, if
applicable, segregated and held in trust) money sufficient to pay the redemption
price of, and accrued interest on, all the Notes that are to be redeemed on such
date.
If a Change of Control Repurchase Event
(defined below) occurs, unless the Company has previously exercised its right to
redeem the notes as described above, the Company will make an offer to each
Holder of Notes to repurchase all or any part (in integral multiples of $1,000)
of that Xxxxxx’s Notes at a repurchase price in cash equal to 101% of the
aggregate principal amount of Notes repurchased plus any accrued and unpaid
interest on the Notes repurchased to the date of purchase. Within 30 days
following any Change of Control Repurchase Event or, at the Company’s option,
prior to any Change of Control (defined below), but after the public
announcement of the Change of Control, the Company will mail a notice to each
Holder, with a copy to the Trustee, describing the transaction or transactions
that constitute or may constitute the Change of Control Repurchase Event and
offering to repurchase Notes on the payment date specified in the notice, which
date will be no earlier than 30 days and no later than 60
days from the date such notice is mailed. The
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notice
shall, if mailed prior to the date of consummation of the Change of Control,
state that the offer to purchase is conditioned on the Change of Control
Repurchase Event occurring on or prior to the payment date specified in the
notice. The Company will comply with the requirements of Rule 14e-1 under the
Securities Exchange Act of 1934, as amended (the “Exchange Act”) and any other
securities laws and regulations under the Exchange Act to the extent those laws
and regulations are applicable in connection with the repurchase of the notes as
a result of a Change of Control Repurchase Event. To the extent that the
provisions of any securities laws or regulations conflict with the Change of
Control Repurchase Event provisions herein, the Company will comply with the
applicable securities laws and regulations and will not be deemed to have
breached its obligations under the Change of Control Repurchase Event provisions
herein by virtue of such conflict.
On the Change of Control Repurchase
Event payment date, the Company will, to the extent lawful:
o accept
for payment all Notes or portions of Notes properly tendered pursuant to the
Company's offer;
o deposit
with the Paying Agent an amount equal to the aggregate purchase price in respect
of all Notes or portions of Notes properly tendered; and
o deliver
or cause to be delivered to the Trustee the Notes properly accepted, together
with an Officers’ Certificate stating the aggregate principal amount of Notes
being purchased by the Company.
The Paying Agent will promptly mail to
each Holder of Notes properly tendered the purchase price for the Notes, and the
Trustee will promptly authenticate and mail (or cause to be transferred by
book-entry) to each Holder a new Note equal in principal amount to any
unpurchased portion of any Notes surrendered; provided that each new Note
will be in a principal amount of $1,000 or an integral multiple
thereof.
The Company will not be required to
make an offer to repurchase the Notes upon a Change of Control Repurchase Event
if a third party makes such an offer in the manner, at the times and otherwise
in compliance with the requirements for an offer made by the Company and such
third party purchases all Notes properly tendered and not withdrawn under its
offer.
For purposes of the Notes:
“Below Investment Grade Rating Event”
means the Notes are rated below Investment Grade (defined below) 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
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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 Trustee in writing at the Company’s request 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 Company’s Voting Stock (defined below),
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.
“Investment Grade” means a rating of
Baa3 or better by Xxxxx’x (or its equivalent under any successor rating
categories of Xxxxx’x); a rating of BBB- or better by S&P (or its equivalent
under any successor rating categories of S&P); and the equivalent Investment
Grade credit rating from any additional Rating Agency (defined below) or Rating
Agencies selected by the Company.
“ Xxxxx'x” means Xxxxx'x Investors
Service Inc.
“Rating Agency” means (1) each of
Xxxxx’x and S&P; and (2) if either of Xxxxx’x 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 Xxxxx’x or S&P, or both, as
the case may be.
“S&P” means Standard & Poor’s
Ratings Services, a division of XxXxxx-Xxxx, Inc.
“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 of such person that is at the time entitled to
vote generally in the election of the board of directors of such
person.
6. Denominations; Transfer;
Exchange. The Notes are in registered form without coupons in
denominations of principal amount of $1,000 and whole multiples of $1,000. A
Holder may transfer or exchange Notes in accordance with the Indenture. The
Registrar may require a Holder, among other things, to furnish appropriate
endorsements or transfer documents and to pay any taxes and fees required by law
or permitted by the Indenture. The Registrar need not (A)
issue, register the transfer of or exchange any Note during a period beginning
at the opening of 15 days before the day of any selection of Notes for
redemption and ending at the close of business on the day of selection, (B)
register the transfer of or to exchange any Note so selected for redemption in
whole or in part, except the unredeemed portion of any Note being redeemed in
part, or (C) register the transfer of or to exchange a Note between a record
date and the next succeeding interest payment date.
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7. Persons Deemed Owners
. The registered Holder of this Note will be treated as the owner of it
for all purposes.
8. Unclaimed Money. If
money for the payment of principal or interest remains unclaimed for two years,
the Trustee or Paying Agent shall pay the money back to the Company at its
written request unless an abandoned property law designates another Person.
After any such payment, Holders entitled to the money must look only to the
Company and not to the Trustee or Paying Agent for payment.
9. Defeasance. Subject
to certain conditions set forth in the Indenture, the Company at any time may
terminate some or all of its obligations under the Notes and the Indenture if
the Company deposits with the Trustee money or U.S. Government Securities for
the payment of principal, premium, if any, and interest on the Notes to
redemption or maturity, as the case may be.
10. Amendment, Waiver.
Subject to certain exceptions set forth in the Indenture, (i) the Indenture or
the Notes may be amended with the written consent of the Holders of at least a
majority in principal amount of the then outstanding Notes and (ii) any default
(other than with respect to nonpayment or in respect of a provision that cannot
be amended without the written consent of each Holder affected thereby) or
noncompliance with any provision may be waived with the written consent of the
Holders of a majority in principal amount of the then outstanding Notes. Subject
to certain exceptions set forth in the Indenture, without the consent of any
Holder, the Company and the Trustee may amend the Indenture or the Notes to cure
any ambiguity, omission, defect or inconsistency, or to comply with Article IV of the
Indenture, or to add guarantees with respect to the Notes, or to secure the
Notes, or to add additional covenants of the Company, or surrender rights and
powers conferred on the Company, or to comply with any request of the SEC in
connection with qualifying the Indenture under the Act, or to make any change
that does not adversely affect the rights of any Holder, or to establish the
form or terms of the Notes as permitted under the Indenture, or to evidence and
provide for the acceptance of appointment under the Indenture by a successor
Trustee with respect to the Notes and as shall be necessary to provide for or
facilitate the administration of the trusts under the Indenture by more than one
Trustee.
11. Defaults and
Remedies. Under the Indenture, Events of Default include (i) default in
any payment of interest or additional interest on any Note when due, and
continuing for 30 days; (ii) default in the payment of principal or premium, if
any, on any Note when due at its Stated Maturity, upon optional redemption, upon
declaration or otherwise; (iii) default by the Company in the performance
of or breaches by the Company of any covenant or agreement in the Indenture or
under the Notes, other than those referred to in (i) or (ii), where such default
continues for 60 days after written notice to the Company by the Trustee or to
the Company and the
Trustee by the Holders of at least 25% in principal amount
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of the
outstanding Notes; (iv) (a) failure by the Company or any of its Subsidiaries to
pay, in accordance with its terms and when payable, any of the principal,
premium, if any, interest or additional amounts, if any, on any Debt (including
the Notes, but other than the Notes, if any, with respect to which the failure
to pay principal, premium, if any, interest or additional interest is also an
Event of Default under clauses (i), (ii) or both) having, in the aggregate, a
then outstanding principal amount in excess of $50,000,000, at the later of
final maturity or the expiration of any applicable grace period or (b)
acceleration of the maturity of Debt in an aggregate principal amount in excess
of $50,000,000, if that acceleration results from a default under the instrument
giving rise to or securing such Debt; or (v) certain events of bankruptcy,
insolvency or reorganization of the Company.
If an Event of Default described in
clauses (i), (ii), (iii) and (iv) occurs and is continuing, the Trustee by
notice to the Company, or the Holders of at least 25% in outstanding principal
amount of the Notes by notice to the Company and the Trustee, may, and the
Trustee at the request of such Holders shall, declare the principal of, premium,
if any, and accrued and unpaid interest, if any, on all the Notes to be due and
payable. Upon such a declaration, such principal, premium and accrued and unpaid
interest shall be immediately due and payable. If an Event of Default described
in clause (v) above occurs and is continuing, the principal of, premium, if any,
and accrued and unpaid interest on all the Notes will become and be immediately
due and payable without any declaration or other act on the part of the Trustee
or any Holders.
Holders may not enforce the Indenture
or the Notes except as provided in the Indenture. The Trustee may refuse to
enforce the Indenture or the Notes unless it receives reasonable indemnity or
security satisfactory to it. Subject to certain limitations, Holders of a
majority in principal amount of the Notes may direct the Trustee in its exercise
of any trust or power. The Trustee may withhold from Holders notice of any
continuing Default or Event of Default (except a Default or Event of Default in
payment of principal of, premium, if any, or interest on any Note) if it
determines in good faith that withholding notice is in the interests of
Holders.
12. Trustee Dealings with the
Company. Subject to certain limitations set forth in the Indenture, the
Trustee under the Indenture, in its individual or any other capacity, may become
the owner or pledgee of Notes and may otherwise deal with and collect
obligations owed to it by the Company or its Affiliates and may otherwise deal
with the Company or its Affiliates with the same rights it would have if it were
not Trustee.
13. No Recourse Against
Others. An incorporator, director, officer, employee, Affiliate or
stockholder, of the Company, solely by reason of this status, shall not have any
liability for any obligations of the Company under the Notes or the Indenture or
for any claim based on, in respect of or by reason of such obligations or their
creation. By accepting a Note, each Holder waives and releases all such
liability. The waiver and release are part of the consideration for the issue of
the Notes.
14. Authentication. This
Note shall not be valid until an authorized signatory of the Trustee (or an
authenticating agent acting on its behalf) manually signs the certificate of
authentication on the other side of this Note.
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15. Abbreviations.
Customary abbreviations may be used in the name of a Holder or an assignee, such
as TEN COM (=tenants in common), TEN ENT (=tenants by the entirety), JT TEN
(=joint tenants with rights of survivorship and not as tenants in common), CUST
(=custodian) and U/G/M/A (=Uniform Gift to Minors Act).
16. CUSIP Numbers.
Pursuant to a recommendation promulgated by the Committee on Uniform Security
Identification Procedures the Company has caused CUSIP numbers to be printed on
the Notes and has directed the Trustee to use CUSIP numbers in notices of
redemption as a convenience to Holders. No representation is made by the Company
or the Trustee as to the accuracy of such numbers either as printed on the Notes
or as contained in any notice of redemption and reliance may be placed only on
the other identification numbers placed thereon.
17. Governing Law. This
Note shall be governed by, and construed in accordance with, the laws of the
State of New York.
The Company will furnish to any Holder
upon written request and without charge to the Holder a copy of the Indenture
which has in it the text of this Note. Requests may be made to:
The Black
& Xxxxxx Corporation
000 Xxxx
Xxxxx Xxxx
Towson,
Maryland 21286
Attention:
Treasurer
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ASSIGNMENT
FORM
To assign
this Note, fill in the form below:
I or we
assign and transfer this Note to
______________________________________________________
(Print or
type assignee’s name, address and zip code)
______________________________________________________
(Insert
assignee’s soc. sec. or tax I.D. No.)
and
irrevocably appoint _________________________ agent to transfer this Note on the
books of the Company. The agent may substitute another to act for
him.
________________________________________________________________________________________________
Date:_____________________________
Your Signature:_______________________
Signature
Guarantee:________________________________________________________________________________
(Signature must be guaranteed)
________________________________________________________________________________________________
Sign
exactly as your name appears on the other
side of this Note.
The
signature(s) should be guaranteed by an eligible guarantor institution (banks,
stockbrokers, savings and loan associations and credit unions with membership in
an approved signature guarantee medallion program), pursuant to SEC Rule
17Ad-15.
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[TO BE
ATTACHED TO GLOBAL SECURITIES]
SCHEDULE
OF INCREASES OR DECREASES IN GLOBAL SECURITY
(i) The
following increases or decreases in this Global Security have been
made:
|
Date
of Exchange
|
Amount
of decrease in Principal Amount of this Global Security
|
Amount
of increase in Principal Amount of this Global Security
|
Principal
Amount of this Global Security following such decrease or
increase
|
Signature
of authorized signatory of Trustee or Securities
Custodian
|
||||
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