AMENDMENT NO. 1 TO FIVE-YEAR CREDIT AGREEMENT Dated as of June 16, 2006
EXHIBIT 4.1
AMENDMENT NO. 1 TO FIVE-YEAR CREDIT AGREEMENT
Dated as of June 16, 2006
THE BLACK & ▇▇▇▇▇▇ CORPORATION, a Maryland corporation (the “Company”), Black & ▇▇▇▇▇▇ Holdings Inc., a Delaware corporation (“Holdings”), Black & ▇▇▇▇▇▇ Luxembourg S.ar.L., a Société responsibilité limité organized under the laws of Luxembourg (“B&D Luxembourg”), Black & ▇▇▇▇▇▇ Luxembourg Finance S.C.A., a corporate partnership limited by shares organized under the laws of Luxembourg (“B&D Luxembourg Finance” and together with the Company, Holdings and B&D Luxembourg, the “Borrowers”), the banks, financial institutions and other institutional lenders (collectively, the “Lenders”) and issuing banks (the “Issuing Banks”) listed on the signature pages hereof, and Citibank, N.A. (“Citibank”), as the administrative agent for the Lenders, hereby enter into this AMENDMENT NO. 1 TO FIVE-YEAR CREDIT AGREEMENT, as of this 16th day of June, 2006, in order to amend in certain respects the FIVE-YEAR CREDIT AGREEMENT, dated as of October 29, 2004 (the “Agreement”) among the same parties.
The parties hereto agree as follows:
Section 1. Defined Terms. Terms defined in the Agreement and not otherwise defined herein have the meanings set forth in the Agreement.
Section 2. Amendment to Agreement. The Agreement is hereby amended by deleting therefrom in its entirety the definition of "GAAP" set forth in Section 1.01 thereof and inserting the following in place thereof:
| “GAAP” means generally accepted accounting principles consistent with those applied in the preparation of the Financial Statements of the Company for the fiscal year of the Company ended December 31, 2005, filed with the Securities and Exchange Commission in the Annual Report of the Company on Form 10-K for such fiscal year, as modified for the Company’s adoption of the FASB’s Statement of Accounting Standards No. 123 (revised 2004), Share-Based Payment. |
Section 3. Conditions to Effectiveness. This Amendment No. 1 shall be effective as of the date first above written when the Administrative Agent shall have received counterparts of this Amendment No. 1 signed by each of the Borrowers and by the Required Lenders or, as to any of the Lenders, advice satisfactory to the Administrative Agent that such Lender has executed this Amendment.
Section 4. Representations. The Company hereby represents and warrants that (a) the representations and warranties contained in Section 4.01 of the Agreement, as amended hereby, are correct on and as of the date hereof; and (b) no event has occurred and is continuing that constitutes a Default.
Section 5. Reference to and Effect on the Agreement and the Notes. (a) On and after the effectiveness of this Amendment No. 1, each reference in the Agreement to “this Agreement”, “hereunder”, “hereof” or words of like import referring to the Agreement, and each reference in the Notes to “the Credit Agreement”, “thereunder”, “thereof” or words of like import referring to the Agreement, shall mean and be a reference to the Agreement, as amended by this Amendment No. 1.
(b) The Agreement and the Notes, as specifically amended by this Amendment No. 1, are and shall continue to be in full force and effect and are hereby in all respects ratified and confirmed.
(c) The execution, delivery and effectiveness of this Amendment No. 1 shall not, except as expressly provided herein, operate as a waiver of any right, power or remedy of any Lender or the Agent under the Credit Agreement, nor constitute a waiver of any provision of the Credit Agreement.
Section 6. Costs and Expenses. The Company agrees to pay on demand all costs and expenses of the Administrative Agent in connection with the preparation, execution, delivery and administration of this Amendment No. 1 and the other instruments and documents to be delivered hereunder (including, without limitation, the reasonable fees and expenses of counsel for the Administrative Agent) in accordance with the terms of Section 9.04 of the Agreement.
Section 7. Execution in Counterparts. This Amendment No. 1 may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute but one and the same agreement. Delivery of an executed counterpart of a signature page to this Amendment No. 1 by telecopier shall be effective as delivery of a manually executed counterpart of this Amendment No. 1.
Section 8. Governing Law.. This Amendment No. 1 shall be governed by, and construed in accordance with, the laws of the State of New York.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1 to be executed by their respective officers thereunto duly authorized, as of the date first above written.
| THE BLACK & ▇▇▇▇▇▇ CORPORATION
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ Title: Vice President - Investor Relations & Treasurer |
BLACK & ▇▇▇▇▇▇ HOLDINGS INC. By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ Title: Vice Chairman |
| BLACK & ▇▇▇▇▇▇ LUXEMBOURG S.ar.L.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ Title: Manager |
| BLACK & ▇▇▇▇▇▇ LUXEMBOURG FINANCE S.C.A.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ Title: Manager |
Accepted and agreed:
CITIBANK, N.A., as Administrative Agent and as Lender By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇ Title: Vice President |
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JPMORGAN CHASE BANK, N.A. By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Title: Vice President |
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BANK OF AMERICA, N.A. By: /s/ J. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Name: J. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Title: Vice President |
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BNP PARIBAS By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Title: Director |
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By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Title: Director |
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COMMERZBANK AG, NEW YORK AND GRAND CAYMAN BRANCHES By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Title: Senior Vice President |
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By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Title: Assistant Treasurer |
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BARCLAYS BANK PLC By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇ Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇ Title: Director |
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CREDIT SUISSE, CAYMAN ISLANDS BRANCH (formerly known as Credit Suisse First Boston, acting through its Cayman Islands Branch) By: /s/ ▇▇▇ ▇▇▇▇▇ Name: ▇▇▇ ▇▇▇▇▇ Title: Director |
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By: /s/ ▇▇▇▇▇ ▇▇▇▇▇ Name: ▇▇▇▇▇ ▇▇▇▇▇ Title: Associate |
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HSBC BANK USA, NATIONAL ASSOCIATION By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Title: Senior Vice President |
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MIZUHO CORPORATE BANK, LTD. By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Title: Deputy General Manager |
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SOCIETE GENERALE By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Title: Vice President |
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SUNTRUST BANK By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇. Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇. Title: Vice President |
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THE BANK OF NEW YORK By: /s/ J. ▇▇▇▇▇ ▇▇▇▇▇▇, JR. Name: J. ▇▇▇▇▇ ▇▇▇▇▇▇, Jr. Title: Vice President |
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THE BANK OF NOVA SCOTIA By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇ Title: Managing Director |
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BANK OF TOKYO-MITSUBISHI UFJ TRUST COMPANY By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Title: Vice President |
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THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., NEW YORK BRANCH (successor to The Bank of Tokyo-Mitsubishi Trust Company and UFJ Bank Limited) By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Title: Vice President |
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FIFTH THIRD BANK By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Title: Vice President |
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ING CAPITAL LLC By: /s/ ▇▇▇▇ ▇▇▇▇▇▇ Name: ▇▇▇▇ ▇▇▇▇▇▇ Title: Managing Director |
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PNC BANK, National Association By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Title: Senior Vice President |
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SANPAOLO IMI SPA By: /s/ ▇▇▇▇ ▇▇▇▇▇▇ Name: Lucca Sacchi Title: Vice President |
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By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Title: General Manager |
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SKANDINAVISKA ENSKILDA ▇▇▇▇▇▇ ▇▇ By: Name: Title: |
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