BLACK & DECKER HOLDINGS, LLC THE BLACK & DECKER CORPORATION AND THE BANK OF NEW YORK MELLON as Trustee
Exhibit
4.5
BLACK
& XXXXXX HOLDINGS, LLC
THE BLACK
& XXXXXX CORPORATION
AND
THE BANK
OF NEW YORK MELLON
as
Trustee
to
the
INDENTURE
dated as
of June 26, 1998
Dated as
of March 12, 2010
THIS
FIRST SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of March
12, 2010, is among BLACK & XXXXXX HOLDINGS, LLC (formerly known as Black
& Xxxxxx Holdings Inc.), THE BLACK & XXXXXX CORPORATION, a Maryland
corporation (the “Existing Guarantor”), XXXXXXX XXXXX & XXXXXX, INC.
(formerly known as The Xxxxxxx Works), a Connecticut corporation (the
“Additional Guarantor”), and THE BANK OF NEW YORK MELLON (as
successor-in-interest to The First National Bank of Chicago), as trustee (the
“Trustee”).
Witnesseth:
WHEREAS,
the Company and the Existing Guarantor have executed and delivered to the
Trustee an Indenture, dated as of June 26, 1998, by and among the Company, the
Existing Guarantor and the Trustee (the “Indenture”), providing for the issuance
from time to time of one or more series of Notes;
WHEREAS,
the Trustee has heretofore authenticated, and the Company has heretofore issued
$150,000,000 aggregate principal amount of 7.05% Notes due 2028 under the
Indenture, fully and unconditionally guaranteed by the Existing Guarantor (the
“Outstanding Notes”);
WHEREAS,
on the date hereof, a wholly-owned subsidiary of the Additional Guarantor will
merge with and into the Existing Guarantor with the Existing Guarantor as the
survivor pursuant to that certain Agreement and Plan of Merger, dated as of
November 2, 2009, among the Existing Guarantor, the Additional Guarantor and
Blue Xxx Acquisition Corp., the Existing Guarantor will become a wholly-owned
subsidiary of the Additional Guarantor and the Additional 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(x) of the Indenture, the Trustee, the Existing Guarantor
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 provide
additional benefits to Holders of Notes;
WHEREAS,
this Supplemental Indenture has been duly authorized by all necessary corporate
action on the part of the Company, the Existing Guarantor and the Additional
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 Existing Guarantor, the
Additional Guarantor and the Trustee.
ARTICLE
1
GUARANTEE
Section
1.1. Amendments
to Indenture.
The
following definition shall amend and replace the definition of "Guarantor" in
the Indenture, and shall hereinafter be deemed a part of the Indenture and
applicable to the Outstanding Notes. “Guarantor” shall mean Xxxxxxx
Xxxxx & Xxxxxx, Inc., a Connecticut Corporation, and The Black & Xxxxxx
Corporation, a Maryland Corporation, as joint and several obligors under the
Guarantee referred to herein, in each case until one or more successor
corporations shall have become such pursuant to the applicable provisions of
this Indenture, and thereafter means such successors.
ARTICLE
2
MISCELLANEOUS
Section
2.1. Effect
of Guarantee; Guarantor to be Bound by Indenture; Release of Guarantee by
Additional Guarantor.
(a) The
Additional Guarantor hereby irrevocably fully and unconditionally Guarantees,
jointly and severally with the Existing Guarantor, 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 10 of the Indenture and agrees to be bound by
all other terms of the Indenture.
(b)
Provided
that no notice that a Default or Event of Default has occurred and is continuing
has been delivered to the Holders, the Guarantee by the Additional Guarantor
shall be automatically and unconditionally released and discharged, and no
further action by the Additional Guarantor, the Existing Guarantor, the Company
or the Trustee is required for the release of the Guarantee by the Additional
Guarantor, upon the Additional Guarantor delivering to the Trustee an Officers’
Certificate stating that the Guarantee by the Additional Guarantor is released
in full.
Section
2.2. Effect
of Supplemental Indenture.
Upon the
execution and delivery of this Supplemental Indenture by the Company, the
Additional Guarantor, the Existing 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.
2
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, the Additional Guarantor and
the Existing 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.
(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.
3
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.
Section
2.10. Benefits
Acknowledged.
The
Additional Guarantor acknowledges that it will receive direct and indirect
benefits from the financing arrangements contemplated by the Indenture and that
the guarantee and waivers made by it pursuant to its Guarantee are knowingly
made in contemplation of such benefits.
* * * * *
4
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.
| BLACK & XXXXXX HOLDINGS, LLC | |||
|
|
By:
|
/s/ Xxxxxxxxx X. Dolce | |
| Name: Xxxxxxxxx X. Dolce | |||
| Title: Vice Chairman | |||
| 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 | |||
