EXHIBIT 4.1
FIRST AMENDMENT TO CREDIT AGREEMENT
FIRST AMENDMENT (this "First Amendment"), dated as of August 22, 1997,
among COLTEC INDUSTRIES INC, a corporation organized and existing under
the laws of the State of Pennsylvania (the "Company"), the various
Banks from time to time party to the Credit Agreement referred to
below, BANK OF AMERICA ILLINOIS, as Documentation Agent, THE CHASE
MANHATTAN BANK, as Syndication Agent, and BANKERS TRUST COMPANY, as
Administrative Agent, and acknowledged and agreed to by each of the
Subsidiary Guarantors. All capitalized terms used herein and nor
otherwise defined herein shall have the respective meanings provided
such terms in the Credit Agreement.
W I T N E S S E T H :
WHEREAS, the Company, the Banks, the Documentation Agent, the
Syndication Agent and the Administrative Agent are parties to a Credit
Agreement, dated as of March 24, 1992, amended and restated as of
January 11, 1994 and further amended and restated as of December 18,
1996, (as amended, modified or supplemented to the date hereof, the
"Credit Agreement");
WHEREAS, the Company desires to consummate a transaction (the
"Proposed Receivables Transaction") to effect the sale of accounts
receivable of the Company and certain of its Subsidiaries to Atlantic
Asser Securitization Corp., an asset-backed commercial paper issuer
administered by Credit Lyonnais:
WHEREAS, subject to the terms and conditions set forth herein, the
Banks desire to permit the Company and its Subsidiaries to consummate
the Proposed Receivables Transaction and to amend the Credit Agreement
in connection therewith; and
WHEREAS, subject to the terms and conditions set forth below, the
parties hereto agree as follows.
NOW, THEREFORE, it is agreed:
1. Section 9.02 of the Credit Agreement is hereby amended by (1)
deleting the word "and" at the end of clause (xviii), (2) deleting the
period at the end of clause (xix) and inserting a semicolon in lieu
thereof and (3) inserting the following new clauses (xx) and (xxi):
"(xx) so long as the Intangibles Subsidiary shall have executed and
delivered the documentation required by the penultimate sentence of
Section 9.15, and so long as no Event of Default exists at such time or
would result therefrom, the Company and/or any of its Subsidiaries
shall be permitted to contribute or otherwise transfer accounts
receivable to the Intangibles Subsidiary, and the Intangibles
Subsidiary shall be permitted to contribute or otherwise transfer such
accounts receivable to the Receivables SPC, in each case pursuant to a
Permitted Receivables Transaction; and
(xxi) so long as the Intangibles Subsidiary shall have executed and
delivered the documentation required by the penultimate sentence of
Section 9.15, the Company and/or any of its Subsidiaries shall be
permitted to contribute or otherwise transfer patents, trademarks,
copyrights and know-how to the Intangibles Subsidiary."
2. Section 9.02 (xii) of the Credit Agreement is hereby further
amended by inserting the text "the Receivables SPC, CNC Member,"
immediately before the word "Garlock" appearing in clause (t) of the
proviso appearing therein.
3. Section 9.05 of the Credit Agreement is hereby amended by (1)
deleting the word "and" at the end of clause (xviii), (2) deleting the
period at the end of clause (xix) and inserting the text"; and" in lieu
thereof and (3) inserting the following new clause (xx);
"(xx) so long as no Default or Event of Default exists at such
time or would result therefrom, the Company and/or any of its
Subsidiaries shall be permitted to contribute accounts receivable to
the Intangibles Subsidiary and the Intangibles Subsidiary shall be
permitted to contribute such accounts receivable to the Receivables
SPC, in each case pursuant to a Permitted Receivables Transaction."
4. Section 9.06 of the Credit Agreement is hereby amended by (1)
deleting the word "and" at the end of clause (ii) of the first sentence
and inserting a comma in lieu thereof and (2) inserting the following
new text at the end of such sentence:
"(iv) transaction between the Company, the Intangibles Subsidiary
and any other Subsidiary of the Company shall be permitted to the
extent expressly permitted by Sections 9.02 (xx) and (xxi) and 9.05
(xx)."
5. Section 11 of the Credit Agreement is hereby amended by inserting
the following new definitions in the appropriate alphabetical order:
"`CNC Member' shall mean CNC Member Inc, a North Carolina
corporation, special purpose Wholly-Owned Subsidiary of the Company,
which was created for the sole purpose of holding a 1% interest in the
Receivables SPC and which shall engaged in no other business or
activities except as reasonably related thereto, it being understood
that CNC Member shall not be required to be a party to any Guaranty or
Security Document as otherwise provided in this Agreement.
`Intangibles Subsidiary' shall mean Coltec North Carolina Inc. a
North Carolina corporation, which is a Wholly-Owned Subsidiary of the
Company created, in accordance with Section 9.15, for the purpose of
receiving (i) accounts receivable pursuant to a Permitted Receivables
Transaction and (ii) patents, trademarks, copyrights and know-how, in
each case from the Company and any of its other Subsidiaries.
`Receivables SPC' shall mean CNC Finance LLC, a North Carolina
limited liability company, which is a special purpose Wholly-Owned
Subsidiary of the Company, directly owned by the Intangibles Subsidiary
and CNC Member Inc, which was created for the sole purpose of acquiring
accounts receivable from the Intangibles Subsidiary and selling such
accounts receivable or interest therein to one or more third parties
pursuant to a Permitted Receivables Transaction and which shall engage
in no other business or activities except as reasonable related
thereto, it being understood that the Receivables SPC shall not be
required to be a party to any Guaranty or Security Document as
otherwise provided in this Agreement."
6. The definition of Permitted Receivables Transaction appearing in
Section 11 of the Credit Agreement is hereby amended by inserting the
text "and/or the Intangibles Subsidiary and/or the Receivables SPC"
immediately after the word "Company" the first place it appears
therein.
7. Notwithstanding anything to the contrary contained in the
definition of Permitted Receivables Transaction contained in the Credit
Agreement, the Banks hereby consent to the Company and its relevant
Subsidiaries consummation the Proposed Receivables Transaction and
agree that the Proposed Receivables Transaction shall constitute a
Permitted Receivables Transaction under the Credit Agreement so long as
(i) the aggregate amount outstanding under the Proposed Receivables
Transaction facility shall in no event exceed $85,000.000 at any time
and (ii) the receivables purchase agreement and related documentation
evidencing the Proposed Receivables Transaction shall be consistent
with the term sheet therefor attached hereto as Annex I and otherwise
be in form and substance satisfactory to the Administrative Agent:
provided, however, that in connection with the Proposed Receivables
Transaction, the Company shall not be required to (x) provide the
Administrative Agent and the Banks with at least 30 days' prior notice
of the Proposed Receivables Transaction or (y) apply the proceeds
received pursuant to the Proposed Receivables Transaction as a
mandatory commitment reduction otherwise in accordance with Section
3.03 (f) of the Credit Agreement.
8. Notwithstanding anything to the contrary contained in the Credit
Agreement or the Security Agreements, the Banks hereby consent to the
release of the receivables sold to Receivables SPC at any time pursuant
to the Proposed Receivables Transaction from any and all security
interests created by the Security Agreements, and, on and after the
First Amendment Effective Date, such receivables are hereby released.
In connection therewith. the Collateral Agent is hereby authorized to
(1) amend any Security Agreement to exclude such receivables from the
security interests granted thereby and (2) execute and deliver such
documentation (including UCC amendment/termination statements and the
like) deemed necessary or desirable by it in connection therewith.
9. Notwithstanding anything to the contrary contained in Section 9.15
of the Credit Agreement, in respect of the Company's new Subsidiaries
Coltec North Carolina Inc, CNC Member Inc, CNC Finance LLC and AMI
Industries Inc., (x) the Banks hereby waive (A) the requirement of ten
Business Days prior written notice of the creation thereof and (B) the
requirement that CNC Member Inc and CNC Finance LLC become parties to
the Additional Security Documents otherwise required by Section 9.15 of
the Credit Agreement and (y) the parties hereto agree (and the Banks
hereby consent) that each of Coltec North Carolina Inc and AMI
Industries Inc. shall become a party to the Subsidiaries Guaranty, the
Subsidiaries Pledge Agreement and the Subsidiaries Security Agreement
within thirty days after the First Amendment Effective Date.
10. Notwithstanding anything to the contrary contained in Section
13.16 of the Credit Agreement, the Company shall, within 30 days after
the First Amendment Effective Date (as defined below), deliver to the
Collateral Agent, as Pledgee, the capital stock constituting Pledged
Securities of Coltec Industries Pacific Pte Ltd together with executed
and undated stock powers related thereto, and the Banks hereby waive
any Default or Event of Default, if any, that may have arisen solely
from the Company's failure to deliver such capital stock and stock
powers as of the date hereof. The Company hereby represents and
warrants that the capital stock of Coltec do Brasil Products Industrias
LTDA is uncertificated and, accordingly, is not required to be
delivered pursuant to Section 13.16 of the Credit Agreement.
11. In order to induce the Banks to enter into this First
Amendment, the Company hereby represents and warrants that (i) all
representations and warranties contained in the Section 7 of the Credit
Agreement are true and correct in all material respects on and as of
the First Amendment Effective Date and after giving effect to the First
Amendment (unless such representations and warranties relate to a
specific earlier date, in which case such representations and
warranties shall be true and correct as of such as of such earlier
date) and (ii) there exists no Default or Event of Default on the First
Amendment Effective Date after giving effect to this Consent.
12. This First Amendment is limited as specified and shall not
constitute a modification, acceptance or waiver of any other provision
of the Credit Agreement or any other Credit Document.
13. This First Amendment may be executed in any number of
counterparts and by the different parties hereto on separate
counterparts, each of which counterparts when executed and delivered
shall be an original, but all of which shall together constitute one
and the same instrument. A complete set of counterparts shall be
lodged with the Company and the Administrative Agent.
14. THIS FIRST AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE LAW OF THE STATE OF NEW YORK.
15. This First Amendment shall become effective on the date (the
"First Amendment Effective Date") when each Credit Party and the
Required Banks shall have signed a counterpart hereof (whether the same
or different counterparts) and shall have delivered (including by way
of facsimile transmission) the same to the Administrative Agent at its
Notice Office.
16. From and after the First Amendment Effective Date, all
references in the Credit Agreement and each of the Credit Documents to
the Credit Agreement shall be deemed to be references to the Credit
Agreement as amended hereby.
* * *
IN WITNESS WHEREOF, the parties hereto have caused a counter part of
this First Amendment to be duly executed and delivered as of the date
first above written.
COLTEC INDUSTRIES INC
By_____________________
Title:
BANKERS TRUST COMPANY,
Individually and as Administrative Agent
By_____________________
Title:
BANK OF AMERICA NATIONAL TRUST
& SAVING ASSOCIATION
Individually and as
Documentation Agent
By____________________
Title:
THE CHASE MANHATTAN BANK
Individually and as Syndication Agent
By____________________
Title:
ABN AMRO BANK N.V.
NEW YORK BRANCH
By___________________
Title:
ALLIED IRISH BANK, PLC,
CAYMAN ISLANDS BRANCH
By___________________
Title:
BANK OF IRELAND
By___________________
Title:
BANK COMMERCIALE ITALIANA
NEW YORK BRANCH
By____________________
Title:
BANK LEUMI TRUST COMPANY
OF NEW YORK
By___________________
Title:
THE BANK OF NEW YORK
By___________________
Title:
THE BANK OF MONTREAL
By__________________
Title:
BANK OF SCOTLAND
By__________________
Title:
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY
By__________________
Title:
BANQUE FRANCAISE
DU COMMERCE EXTERIEUR
By_________________
Title:
CIBC INC.
By_________________
Title:
COMMERCIAL LOAN FUNDING TRUST
By________________
Title:
CORESTATES BANK
By________________
Title:
CREDIT LYONNAIS ATLANTA AGENCY
By________________
Title:
CREDIT LYONNAIS NEW YORK
BRANCH
By________________
Title:
THE DAI-ICHI KANGYO BANK, LTD.
By________________
Title:
FIRST UNION NATIONAL BANK
(f/k/a First Union National Bank of
North Carolina)
By________________
Title:
THE FUJI BANK, LIMITED,
ATLANTA AGENCY
By________________
Title:
GIROCREDIT BANK AG
DER SPARKASSEN,
GRAND CAYMAN ISLAND BRANCH
By________________
Title:
THE INDUSTRIAL BANK OF JAPAN,
LIMITED
By________________
Title:
LEHMAN COMMERCIAL PAPER INC.
By________________
Title:
LLOYDS BANK PLC
By_________________
Title:
MELLON BANK, N.A.
By_________________
Title:
NATIONSBANK, N.A.
By_________________
Title:
THE SAKURA BANK, LTD
By________________
Title:
THE SANWA BANK, LIMITED
By_________________
Title:
SOCIETE GENERALE
By________________
Title:
THE SUMITOMO BANK, LIMITED
By_________________
Title:
WACHOVIA BANK, N.A.
By_________________
Title:
THE YASUDA TRUST & BANKING
COMPANY, LTD.
By_________________
Title:
Acknowledged and agreed:
CII HOLDINGS INC
COLTEC CANADA INC
COLTEC INDUSTRIAL PRODUCTS INC
COLTEC TECHNICAL SERVICES INC
DELAVAN-DELTA INC.
DELAVAN INC
GARLOCK INC
GARLOCK INTERNATIONAL INC
GARLOCK OVERSEAS CORPORATION
HOLLEY PERFORMANCE PRODUCTS INC
MENASCO AEROSYSTEMS INC
COLTEC INTERNATIONAL SERVICES CO.
STEMCO INC
WALBAR INC
By_____________________
Title:
On behalf of each of the above
Subsidiary Guarantors
ANNEX I
Proposed Receivables Transaction Term Sheet.