Exhibit 4.8
[CONFORMED COPY]
THIRD AMENDMENT AND WAIVER
THIRD AMENDMENT AND WAIVER (the "Amendment"), dated as of September 3,
1992, among COLTEC INDUSTRIES INC (the "Company") and the financial institutions
party to the Credit Agreement referred to below (the "Banks"). All capitalized
terms used herein and not otherwise defined shall have the respective meanings
provided such terms in the Credit Agreement referred to below.
W I T N E S S E T H :
WHEREAS, the Company, the Banks, Bankers Trust Company, Manufacturers
Hanover Trust Company, Barclays Bank PLC, New York Branch, and Credit Lyonnais
New York Branch, as Agents, and Bankers Trust Company, as Administrative Agent,
are parties to a Credit Agreement, dated as of March 24, 1992 (as amended to the
date hereof, the "Credit Agreement"); and
WHEREAS, the parties hereto wish to amend the Credit Agreement as
herein provided;
NOW, THEREFORE, it is agreed:
I. AMENDMENTS TO THE CREDIT AGREEMENT
1. Section 4.02(h) of the Credit Agreement is hereby amended by
inserting at the end of the first sentence thereof the following:
"; PROVIDED, HOWEVER, no application of the Net Sale Proceeds from any
asset sale shall be required to be made in accordance with this Sec-
tion 4.02(h) (although the Company shall be required to notify the
Banks on or prior to the occurrence of any such sale of (x) the assets
proposed to be sold and (y) the expected timing of, and Net Sale
Proceeds to be realized from, such sale) unless and until the Net Sale
Proceeds of such asset sale, together with the Net Sale Proceeds of
all prior asset sales (whether or not such assets constituted
Collateral at the time of such sale but excluding asset sales referred
to in
clauses (i) and (ii) of the second parenthetical of this Section 4.02(h)
and the analogous clauses contained in Section 4.02(i)), to the extent the
Net Sale Proceeds from such prior asset sales have not at or prior to such
time been applied in accordance with this Section 4.02(h) or Section
4.02(i), equals or exceeds $10,000,000; PROVIDED FURTHER, that the Company
may elect to apply Net Sale Proceeds pursuant to this Section 4.02(h) prior
to the $10,000,000 threshold being met and may, pending any mandatory or
optional application of Net Sale Proceeds, use such Net Sale Proceeds for
general corporate purposes except that the Company may not so use such Net
Sale Proceeds directly or indirectly to repay Bank Debt or Existing Senior
Debt in violation of the "equal and ratable" provisions of the Existing
Senior Indenture. For purposes of this Section 4.02(h), Section 4.02(i)
and the last sentence of the definition of Share, proceeds shall be deemed
to be applied in accordance with Section 4.02(i) if the Company has (x)
complied with the notice provisions of the Existing Senior Indenture in
connection with a redemption of either Issue of Existing Senior Debt (for
so long as the Company continues to take all actions necessary to effect
the specified redemption in accordance with the terms of the Existing
Senior Indenture) or (y) deposited such proceeds in the cash collateral
account referred to in Section 4.02(i)."
2. Section 4.02(i) to the Credit Agreement is hereby amended by
deleting all of the first sentence thereof beginning after the phrase "PROVIDED,
however," the first time such phrase appears and inserting in lieu thereof the
following:
"no application of the Net Sale Proceeds from any asset sale shall be
required to be made in accordance with this Section 4.02(i) (although
the Company shall be required to notify the Banks on or prior to the
occurrence of any such sale of the (x) assets proposed to be sold and
(y) the expected timing of, and Net Sale Proceeds to be realized from,
such sale) unless and until the Net Sale Proceeds of such asset sale,
together with the Net Sale Proceeds of all prior asset sales (whether
or not such assets constituted Collateral at the time of such sale but
excluding asset sales referred to in clauses (i) and (ii) of the
second
parenthetical of this Section 4.02(i) and the analogous clauses contained
in Section 4.02(h)), to the extent the Net Sale Proceeds from such prior
asset sales have not at or prior to such time been applied in accordance
with this Section 4.02(i) or Section 4.02(h), equals or exceeds
$10,000,000; PROVIDED FURTHER, that the Company may elect to apply Net Sale
Proceeds pursuant to this Section 4.02(i) prior to the $10,000,000
threshold being met and may, pending any mandatory or optional application
of Net Sale Proceeds, use such Net Sale Proceeds for general corporate
purposes except that the Company may not so use such Net Sale Proceeds
directly or indirectly to repay Bank Debt or Existing Senior Debt in
violation of the "equal and ratable" provisions of the Existing Senior
Indentures; PROVIDED FURTHER, that if the respective Issue of Existing
Senior Debt will be redeemable, in relevant part, at par (plus any accrued
interest) after the giving of the notice hereinafter described in this
proviso, then the making of any prepayment required by this Section 4.02(i)
with respect to either Issue of Existing Senior Debt may be delayed (but
not by more than 65 days) beyond the date of prepayment otherwise required
by this Section 4.02(i) to the extent necessary to comply with the notice
provisions of the Existing Senior Indenture for such repayment; PROVIDED
FURTHER, that if either Issue of the Existing Senior Debt (any such Issue,
the "Affected Issue") will not be redeemable, in relevant part, at par
(plus any accrued interest) on the date of any required prepayment pursuant
to this Section 4.02(i) (and after giving effect to the immediately
preceding proviso), then (i) the proceeds which would otherwise be applied
to such Affected Issue shall instead be deposited in a cash collateral
account to be established with the Administrative Agent (pursuant to a cash
collateral agreement in form and substance satisfactory to the
Administrative Agent) to be held (with investments of such Share in Cash
Equivalents, and only in Cash Equivalents, to be permitted, and with any
investment income on such Share being permitted to be used to pay accrued
interest owing on the securities of the Affected Issue in connection with
the offers to purchase or redemptions described below and, in addition,
which investment income (to the extent positive on a net basis) may be
withdrawn by the Company to
pay regularly accruing interest on the securities of the Affected Issue),
for the benefit of the holders of the Affected Issue until such time as
such amounts are applied or released, at the Company's option, as described
in clauses (ii), (iii) or (iv) below, (ii) the Company may distribute to
all holders of such Affected Issue an offer to purchase (the form and terms
of which offer to purchase shall conform in all material respects to all
requirements of the applicable law) on a date (any such date, regardless of
whether any securities of the respective Affected Issue are actually
tendered for purchase, is herein called a "Purchase Date") occurring not
later than 30 days (or such longer period, if any, as is required by
applicable law) after the distribution thereof, an aggregate principal
amount of such Affected Issue the purchase price of which (including any
premium payable, but excluding accrued interest) is equal to the Share
(without giving effect to any investment income received with respect
thereto) of such Affected Issue of the proceeds of the respective asset
sale or sales at a price that is equal to or greater than par and less than
or equal to par plus the redemption premium otherwise applicable to such
Affected Issue on the applicable Purchase Date (in the event that the
Affected Issue is not redeemable on such date the applicable premium shall
be the redemption premium which would be in effect on the first date on
which such securities will be redeemable), in each case, plus any accrued
interest through the Purchase Date (which accrued interest shall be paid
with any earnings on the amounts invested as described in clause (i) above
and with additional funds, to the extent needed, provided by the Company),
and (B) on the Purchase Date, accept all Existing Senior Debt of such
Affected Issue (or proportionate amounts thereof in cases where the offer
to purchase is oversubscribed, with the effect being that in no event shall
there be repurchased on any Purchase Date securities of the Affected Issue
at an aggregate purchase price (exclusive of accrued interest) which
exceeds the Share applicable thereto as described in preceding clause (A))
duly delivered to it in accordance with the terms of such offer to purchase
(such securities, the "Tendered Securities") and withdraw, from amounts
then on deposit with the Administrative Agent, an
amount equal to the Share of the respective asset sale or asset sales
applicable to such Affected Issue (or such lesser amount as equals the
principal amount of securities of the Affected Issue tendered for purchase)
and any investment income on such amounts, which amounts shall be used by
the Company (together with its own funds to the extent needed to pay
additional interest) to pay all amounts then due and owing by the Company
with respect to the purchase of Tendered Securities, (iii) on the Purchase
Date (after giving effect to the purchases, if any, of the Affected Issue
effected on such date in accordance with clause (ii) above), so long as no
Acceleration Event has occurred and continues to exist with respect to the
Affected Issue in connection with which the offer to purchase was made (and
if such an Acceleration Event is in existence, all amounts hereinafter
described in this clause (iii) shall instead be delivered by the
Administrative Agent, to the extent it has actual knowledge of such
Acceleration Event, to the Existing Senior Trustee for application to the
respective Affected Issue), all amounts remaining on deposit with the
Administrative Agent which relate to the Share of proceeds of such Affected
Issue from the asset sale or sales with respect to which the Purchase Date
has just occurred (together with any remaining investment income thereon
not withdrawn pursuant to preceding clause (i) or (ii)), shall be released
to the Company and (iv) if, at any time after the Share of the respective
Affected Issue has been deposited in the cash collateral account described
above in this proviso, such Affected Issue is redeemable, in relevant part,
at par or at par plus a redemption premium (plus any accrued interest),
then the Company may redeem, in relevant part, that portion of the
respective Affected Issue the aggregate redemption price of which (together
with the redemption premium, but excluding accrued interest) is equal to
the Share of asset sale proceeds allocable to such Affected Issue which is
then on deposit in the cash collateral account (but excluding investment
income thereon, which may be used, together with monies of the Company, to
pay accrued interest in respect of such redemption), in accordance with the
terms of the Existing Senior Indenture."
3. Section 4.02(l) of the Credit Agreement is hereby amended by
deleting the first sentence thereof in its entirety and by inserting the
following new sentence in lieu thereof:
"In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, on each date, if any, upon
which cash proceeds are released to the Company in accordance with the
second clause (iii) contained in Section 4.02(i) (excluding investment
income returned to the Company from time to time which is promptly
used by the Company to pay interest then due and payable on the
respective Affected Issue), an amount equal to the cash proceeds so
returned to the Company shall be required to be applied to prepay Term
Loans (or, if the Initial Borrowing Date has not yet occurred, as a
mandatory reduction to the Total Term Loan Commitment)."
4. Section 8.01(i) of the Credit Agreement is hereby amended by
inserting at the end thereof the phrase: "Notwithstanding the foregoing, the
Company will only be required to provide the Banks with notice of or with copies
of communications described in the immediately preceding sentence which are not
material on or prior to the tenth day after the close of the fiscal quarter in
which such communications were received".
5. The definition of "Share" appearing in Section 11 of the Credit
Agreement shall be amended by adding the following sentence at the end thereof:
"For purposes of determining the Share of the Existing Senior Notes,
Existing Senior Debentures or Bank Debt for purposes of this definition or
the definition of "Share Denominator", the determination of the outstanding
principal amount of Existing Senior Notes, Existing Senior Debentures or
Bank Debt Amount shall be made at the time that the applicable asset sale
proceeds are received (whether or not at such time the $10,000,000
threshold referred to in Sections 4.02(h) or 4.02(i) has been reached)."
6. Part A of Schedule III of the Credit Agreement is hereby amended
by deleting the sixteenth Mortgaged Property listed therein which is located at
323 South Bracken Lane, Chandler, Arizona in Maricopa county. The Company
represents and warrants to the Agents and the Banks that it
is not permitted to mortgage such property pursuant to the terms of existing
encumbrances.
7. The undersigned Banks hereby consent to the release of certain
property covered by the Mortgage with respect to the eleventh Mortgaged Property
(Burbank, California) listed on Part A of Schedule III to the Credit Agreement,
which property, the Company represents and warrants to the Agents and the Banks
was not owned, and is not owned, by the Company or any Subsidiary of the
Company.
8. The undersigned Banks hereby agree that the Mortgage Policy for
the second Mortgaged Property (West Hartford, Connecticut) listed on Part A of
Schedule III to the Credit Agreement may contain an exception for an existing
lease, provided that the Mortgage Policy will nonetheless provide affirmative
coverage that lessee's interest under such lease is subordinate to the Lien of
the Mortgage.
9. Notwithstanding anything to the contrary contained in Section
7.11 or Section 7.13 of the Credit Agreement or in the Mortgage covering the
fourteenth Mortgaged Property (Longview, Texas) listed on Part A of Schedule III
of the Credit Agreement, no representation relating to such Mortgaged Property
is made by the Company with respect to its ownership of that portion of such
Mortgaged Property consisting of a strip of land approximately 42 feet wide
running along the northerly boundary of the 12.0047 acre tract of land shown on
sheet 1 of 2 of the survey, dated 4/17/92 (revised 5/5/92) prepared by Walker &
Associates Surveying, Inc., Tyler, Texas and bounded on the southerly side by a
chain link fence.
10. Section 2 of the Subsidiaries Pledge Agreement is hereby amended,
effective as of March 24, 1992, by inserting after the phrase "Garlock Pty.
Limited" the phrase
", Garlock S.A."
II. WAIVER UNDER THE CREDIT AGREEMENT
11. The Banks hereby waive any Default or Event of Default that may
have arisen under the Credit Agreement solely as a result of (i) the Company
failing to deliver (x) an Original Mortgage with respect to the Newtown,
Pennsylvania property so long as such mortgage is delivered by September 30,
1992 or (y) the Mortgage Policies so long as such Mortgage Policies are
delivered by September 30, 1992 and (ii) the failure of the Company prior to the
date hereof to apply proceeds in an amount equal to approximately $2,278,844
from the sale of certain option securities in
accordance with the terms of the Credit Agreement, PROVIDED such amount is
applied towards the $10,000,000 threshold in accordance with Section 4.02(i)
hereof.
III. GENERAL PROVISIONS
12. In order to induce the Banks to enter into this Amendment, the
Company hereby makes each of the representations, warranties and agreements
contained in Section 7 of the Credit Agreement on the Amendment Effective Date
after giving effect to this Amendment.
13. This 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.
14. This 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.
15. THIS 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.
16. This Amendment shall become effective on the date (the "Amendment
Effective Date") when (x) the Company and the Required Banks shall have signed a
copy hereof (whether the same or different copies) and shall have delivered
(including by way of telecopier) the same to the Administrative Agent at the
Notice Office and (y) the Banks shall have received from Skadden, Arps, Slate,
Meagher & Flom, special counsel to the Company, an opinion addressed to the
Agents and each of the Banks and dated the Amendment Effective Date to the
effect that, after giving effect to this Amendment, the obligations of the
Company with respect to the Existing Senior Notes and the Existing Senior
Debentures continue to be equally and rateably secured with the Obligations
under the Credit Agreement and such obligations of the Company and its
Subsidiaries as may be incurred under the Interest Rate Protection and Other
Hedging Agreements.
17. From and after the Amendment Effective Date all references in the
Credit Agreement and the other Credit Documents to the Credit Agreement shall be
deemed to be references to such Credit Agreement as amended hereby.
IN WITNESSES WHEREOF, each of the parties hereto has caused a
counterpart of this Amendment to be duly executed and delivered as of the date
first above written.
COLTEC INDUSTRIES INC
By /S/
---------------------------
Title: Senior Vice President
Finance and Treasurer
BANKERS TRUST COMPANY,
Individually, as Agent, as
Mortgagee and as
Administrative Agent
By
---------------------------
Title:
MANUFACTURERS HANOVER TRUST
COMPANY, Individually, and
as Agent
By /S/ RICHARD STEWART
----------------------------
Title: Vice President
BARCLAYS BANK PLC, NEW YORK
BRANCH, Individually, and
as Agent
By /S/ DENNIS RUGGLES
----------------------------
Title: Associate Director
CREDIT LYONNAIS NEW YORK
BRANCH, Individually, and
as Agent
By /S/
----------------------------
Title: Vice President
CREDIT LYONNAIS CAYMAN ISLAND
BRANCH
By /S/
----------------------------
Title: Authorized Signature
THE BANK OF MONTREAL
By /S/ G. POLE
----------------------------
Title: Director
THE BANK OF NEW YORK
By /S/ DAVID K. ??
----------------------------
Title: Vice President
THE BANK OF TOKYO TRUST
COMPANY
By
---------------------------
Title:
BANQUE FRANCAISE DU COMMERCE
EXTERIEUR
By
---------------------------
Title:
BANQUE NATIONALE DE PARIS,
New York Branch
By
---------------------------
Title:
By
---------------------------
Title:
BANQUE PARIBAS
By /S/ STEPHEN M. BURNS
---------------------------
Title: Vice President
By /S/
----------------------------
Title: Senior Vice President
THE CHASE MANHATTAN BANK, N.A.
By /S/ DANA F. KLEIN
---------------------------
Title: Vice President
COMMONWEALTH BANK OF AUSTRALIA
By /S/ PETER F. EWERS
---------------------------
Title: First Vice President,
Lending
EATON VANCE PRIME RATE
RESERVES
By /S/ BARBARA E. ??
----------------------------
Title: Assistant Treasurer
THE FUJI BANK, LIMITED,
New York Branch
By
---------------------------
Title:
GIROZENTRALE VIENNA, New York
Branch
By
---------------------------
Title:
THE INDUSTRIAL BANK OF JAPAN,
LIMITED, New York Branch
By /S/
----------------------------
Title: Senior Vice President
& Senior Manager
THE LONG-TERM CREDIT BANK
OF JAPAN, LIMITED,
NEW YORK BRANCH
By /S/ JAY SHANKAR
----------------------------
Title: Vice President
THE MITSUBISHI TRUST AND
BANKING CORPORATION
By /S/
----------------------------
Title:
THE NIPPON CREDIT BANK, LTD.,
New York Branch
By /S/ MICHAEL A. MONTELEONE
----------------------------
Title: Assistant Vice
President
UNION BANK OF FINLAND LIMITED,
Grand Cayman Branch
By /S/ DURVAL ARAUJO
----------------------------
Title: Vice President
By /S/
----------------------------
Title:
VAN KAMPEN MERRITT PRIME
RATE INCOME TRUST
By /S/ JEFFREY W. MAILLET
----------------------------
Title: Vice President
Portfolio Manager
WESTPAC BANKING CORPORATION
Grand Cayman Branch
By /S/
----------------------------
Title: Senior Vice President
ALLSTATE LIFE INSURANCE CO.
By /S/ RAFAEL SCOLARI
----------------------------
Title: Investment Manager
ARAB BANKING CORP.
By /S/
----------------------------
Title: Vice President
BAHRAIN MIDDLE EAST BANK E.C.
New York Agency
By /S/
----------------------------
Title: General Manager/
Senior Vice President
By /S/
----------------------------
Title: Assistant Manager
BANK OF IRELAND
By /S/
----------------------------
Title: Vice President
BANK OF NOVA SCOTIA
By
----------------------------
Title:
BANK OF SCOTLAND
By /S/ W.P. ??
----------------------------
Title: Senior Vice President
MERRILL LYNCH PIERCE RATE
PORTFOLIO
By /S/ BOBBY VAUGHAN
----------------------------
Title: Authorized Signatory
NATIONAL DEPOSIT LIFE INSURANCE
CO.
By /S/ MARK K. OKADA
----------------------------
Title: Manager-Fixed Income
PROTECTIVE LIFE INSURANCE
COMPANY
By /S/ RICHARD BIELEN
----------------------------
Title: Vice President -
Investments
RESTRUCTURED OBLIGATION BACKED
BY SENIOR ASSETS B.V.
By /S/ MARK GOLD
----------------------------
Title: Vice President
RYOSHIN LEASING (USA) INC.
By
----------------------------
Title:
STICHTING RESTRUCTURED
OBLIGATIONS BACKED BY SENIOR
ASSETS 2 (ROSA2)
(Chancellor)
By /S/ MARK GOLD
----------------------------
Title: Vice President
TOKYO CITY FINANCE (ASIA)
LIMITED
By
----------------------------
Title:
TOYO TRUST AND BANKING
COMPANY, LTD. New York Branch
By
----------------------------
Title:
TRAVELERS INSURANCE COMPANY
By /S/ THOMAS T. S. LI
----------------------------
Title: Assistant Investment
Officer