Exhibit 4.9
[CONFORMED COPY]
FOURTH AMENDMENT AND CONSENT
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FOURTH AMENDMENT AND CONSENT (the "Amendment"), dated as of September
25, 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 E T H :
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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 (as so amended, the "Credit Agreement");
WHEREAS, the Company has notified the Banks that it intends to issue
unsecured and unguaranteed senior notes (the "Senior Notes") and use the
proceeds therefrom to redeem the Existing Senior Notes (the "Refinancing"); and
WHEREAS, in order to permit the Refinancing and amend certain other
provisions of the Credit Agreement, the parties hereto wish to amend the Credit
Agreement as herein provided, and the Banks are willing to grant the consent
described herein, in each case subject to and on the terms and conditions set
forth herein;
NOW, THEREFORE, it is agreed:
I. AMENDMENTS TO THE CREDIT AGREEMENT
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1. Section 8.13 of the Credit Agreement is hereby amended by
inserting the following phrase immediately following the words "Net Permitted
Refinancing Note Proceeds" appearing in the second parenthetical phrase
appearing in clause (c) thereof:
"plus an additional amount not to exceed
$3,000,000"
2. Section 9.02 of the Credit Agreement is hereby amended by
deleting the amount "$25,000,000" appearing in clause (vi) thereof and inserting
in lieu thereof the amount "$50,000,000".
3. Section 9.02 of the Credit Agreement is hereby further amended by
deleting the word "and" appearing at the end of clause (vii) thereof; (ii)
deleting the period at the end of clause (viii) thereof and replacing it with
the phrase "; and"; and inserting the following new clause (ix) at the end
thereof:
"(ix) any Wholly-Owned Subsidiary of the Company which owns all
of the stock of another Subsidiary of the Company may transfer all of
the stock of such Subsidiary to the Company or any other Wholly-Owned
Subsidiary of the Company, PROVIDED that (x) the Majority Agents
consent to such transfer and the manner of effecting such transfer and
(y) all actions which in the opinion of the Collateral Agent are
necessary or desirable to maintain the perfection and priority of the
security interest of the Collateral Agent in the stock to be
transferred are effected simultaneously with such transfer."
4. Section 9.05 of the Credit Agreement is hereby amended by
deleting the amount "$10,000,000" appearing in clause (j) thereof and inserting
in lieu thereof the amount "$20,000,000."
5. Section 9.06 of the Credit Agreement is hereby amended by (i)
deleting the word "and" appearing at the end of clause (xv) thereof; (ii)
deleting the period at the end of clause (xvi) thereof and replacing it with the
phrase "; and"; and inserting the following new clause (xvii) at the end
thereof:
"(xvii) acquisitions of stock and capital contributions to
effect the transactions described in Section 9.02(ix) to the extent
9.02(ix) is complied with shall be permitted."
6. Section 9.10 of the Credit Agreement is hereby amended by
deleting the last three periods listed therein and inserting in lieu thereof:
"Thereafter 2.75:1"
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7. Section 9.13 of the Credit Agreement is hereby amended by (i)
deleting the word "and" after the first subclause (y) thereof and replacing it
with a semi-colon; (ii) deleting the comma after the first subclause (z) and
(iii) inserting after subclause (z) thereof (and immediately before the end of
the parenthetical in which said subclause (z) appears) the following new clause
(aa):
"and (aa) (I) repurchases and/or repayments of the Existing Senior
Debentures, the New Senior Subordinated Notes, the New Senior Notes
and the Permitted Refinancing Notes at a purchase price not in excess
of the Permitted Purchase Price for each security repurchased or
repaid in an aggregate purchase amount not to exceed the Additional
Permitted Debt Purchase Expenditure Amount on the date of repurchase
or repayment after giving effect to all other utilizations of the
Additional Permitted Debt Purchase Expenditure Amount on such date
and (II) redemptions of the Existing Senior Debentures, the New
Senior Subordinated Notes, the New Senior Notes and the Permitted
Refinancing Notes, in each case in accordance with the terms of the
indentures pursuant to which such securities were issued at a
redemption price not in excess of the redemption price set forth in
the applicable indenture and which redemption price together with any
accrued interest to the applicable redemption date shall not exceed
the Additional Permitted Debt Purchase Expenditure Amount on the date
on which the Company has become irrevocably committed to effect
the redemption after giving effect to all other utilizations of the
Additional Permitted Debt Purchase Expenditure Amount on such date"
8. Section 11 of the Credit Agreement is hereby amended by deleting
the definition of "Additional Permitted Transaction Expenditure Amount" in its
entirety and inserting the following new definitions:
"`Additional Permitted Debt Purchase Expenditure Amount' shall
mean an amount which shall initially equal zero and which shall be (x)
increased on each date a mandatory repayment is made pursuant to Section
4.02(k) by 25% of the Excess Cash Flow for the relevant Excess Cash Flow
Period and (y) reduced on each date on which (i) any cash in excess of
$25,000,000 is expended pursuant to the last sentence of Section 9.08
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by the amount of such excess, (ii) the Company purchases or repays any of
the Existing Senior Debentures, New Senior Subordinated Notes, New Senior
Notes or Permitted Refinancing Notes pursuant to subclause (aa)(I) of
Section 9.13 by the amount of the purchase price therefor and (iii) on
which the Company has become irrevocably committed to redeem any of the
Existing Senior Debentures, New Senior Debentures, New Senior Notes or
Permitted Refinancing Notes pursuant to subclause (aa)(II) of Section 9.13
by the redemption price therefor plus accrued interest.
`Additional Permitted Transaction Expenditure Amount' shall mean
an amount which shall initially equal $25,000,000 and which shall be (x)
increased on each date a mandatory repayment is made pursuant to Section
4.02(k) by 25% of the Excess Cash Flow for the relevant Excess Cash Flow
Period and (y) reduced on each date on which (i) any cash is expended
pursuant to the last sentence of Section 9.08 by the amount of such
expenditure, (ii) the Company purchases or repays any of the Existing
Senior Debentures, New Senior Subordinated Notes, New Senior Notes or
Permitted Refinancing Notes pursuant to subclause (aa)(I) of Section 9.13
by the amount of the purchase price therefor and (iii) on which the Company
has become irrevocably committed to redeem any of the Existing Senior
Debentures, New Senior Debentures, New Senior Notes or Permitted
Refinancing Notes pursuant to subclause (aa)(II) of Section 9.13 by the
redemption price therefor plus accrued interest.
'Permitted Purchase Price' shall mean a price equal to the
greater of (x) par and (y) a purchase or redemption price which would
result in a yield to maturity to the Company (calculated as if the Company
were an independent purchaser of the respective securities who would hold
same to maturity) on the security being purchased, repaid or redeemed equal
to the Base Rate (at the time of determination) plus the Applicable Margin
(at the time of determination), plus in case of either clause (x) or (y)
above, any accrued and unpaid interest on the respective securities through
the date of the respective purchase."
II. CONSENT UNDER THE CREDIT AGREEMENT
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9. By its execution hereof, each Bank hereby consents to the
issuance of the Senior Notes pursuant to
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clause (i) of Section 9.05 of the Credit Agreement (and the Senior Notes
shall constitute the Permitted Refinancing Notes for all purposes of the Credit
Documents) so long as (and this consent shall only be effective if the following
clauses (i)-(vi) are complied with) (i) the Senior Notes are unsecured and
unguaranteed Senior Notes in an aggregate principal amount not to exceed
$150,000,000, (ii) the Senior Notes shall not have any scheduled principal
payments prior to the seventh anniversary of the issuance thereof, (iii) the
Senior Notes shall have identical terms and conditions to the New Senior Notes
except for such differences as shall be approved by the Majority Agents, (iv)
the Senior Notes are issued pursuant to documentation, satisfactory in form and
substance to the Majority Agents, (v) by the 60th day after the issuance of the
Permitted Refinancing Notes, the Existing Senior Notes shall be redeemed in full
in compliance with Section 8.13(c) of the Credit Agreement and (vi) on the date
of issuance, the Net Available Proceeds therefrom, if any, shall be applied in
the manner required by Section 4.02(f) of the Credit Agreement.
10. By its execution hereof, each Bank hereby consents to the
amendment to the Holdings Agreement in the form of Annex I attached hereto.
III. GENERAL PROVISIONS
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11. 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.
12. 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.
13. 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.
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14. 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.
15. This Amendment shall become effective on the date (the "Amendment
Effective Date") when 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.
16. 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/ Paul Schoen
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Title: Senior Vice President
Finance and Treasurer
BANKERS TRUST COMPANY,
Individually, as Agent, as
Mortgagee and as
Administrative Agent
By /s/ Jeffrey J. Glibert
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Title: Managing Director
MANUFACTURERS HANOVER TRUST
COMPANY, Individually, and
as Agent
By /s/ William M. Lane
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Title: Managing Director
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BARCLAYS BANK PLC, NEW YORK
BRANCH, Individually, and
as Agent
By /s/ J. S. Robards
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Title: Senior Associate
CREDIT LYONNAIS NEW YORK
BRANCH, Individually, and
as Agent
By /s/ David M. Cawrse
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Title: Vice President
CREDIT LYONNAIS CAYMAN ISLAND
BRANCH
By /s/ David M. Cawrse
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Title: Authorized Signature
THE BANK OF MONTREAL
By /s/ Glen A. Pole
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Title: Director
THE BANK OF NEW YORK
By /s/ David K. Nichols
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Title: Vice President
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THE BANK OF TOKYO TRUST
COMPANY
By
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Title:
BANQUE FRANCAISE DU COMMERCE
EXTERIEUR
By /s/ David S. Kopp
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Title: Vice President
By /s/ Jean Y. Richard
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Title: First Vice President
BANQUE PARIBAS
By /s/ Stephen M. Burns
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Title: Vice President
By /s/ Robert Faitell
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Title: Vice President
THE CHASE MANHATTAN BANK, N.A.
By /s/ S. Clarke Moody
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Title: Vice President
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COMMONWEALTH BANK OF AUSTRALIA
By /s/ Peter F. Ewers
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Title: First Vice President
EATON VANCE PRIME RATE
RESERVES
By /s/ Jeffrey S. Garner
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Title: Vice President
THE FUJI BANK, LIMITED,
New York Branch
By
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Title:
GIROCREDIT BANK, New York
Branch
By /s/ Anca Trifan
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Title: Vice President
THE INDUSTRIAL BANK OF JAPAN,
LIMITED, New York Branch
By /s/ Junri Oda
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Title: Senior Vice President
& Senior Manager
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THE LONG-TERM CREDIT BANK
OF JAPAN, LIMITED,
NEW YORK BRANCH
By /s/ Jay Shankar
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Title: Vice President
THE MITSUBISHI TRUST AND
BANKING CORPORATION
By /s/ Taihei Yuki
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Title: Senior Vice President
THE NIPPON CREDIT BANK, LTD.,
New York Branch
By s/ Michael A. Monteleone
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Title: Assistant Vice
President
UNION BANK OF FINLAND LIMITED,
Grand Cayman Branch
By /s/ Durval Araujo
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Title: Vice President
By /s/ John F. Kehnle
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Title: Vice President
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VAN KAMPEN MERRITT PRIME
RATE INCOME TRUST
By /s/ Jeffrey W. Maillet
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Title: Vice President
WESTPAC BANKING CORPORATION
Grand Cayman Branch
By /s/ Dennis Smith
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Title: Senior Vice President
ALLSTATE PRIME INCOME TRUST
By /s/ Rafael Scolari
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Title: Investment Manager
ARAB BANKING CORP.
By /s/ Louise Bilbro
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Title: Vice President
BAHRAIN MIDDLE EAST BANK E.C
New York Agency
By /s/ Matthews Kuruvila
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Title: General Manager
Senior Vice President
By /s/ Audrey Brown
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Title: Assistant Manager
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BANK OF IRELAND
By /s/ Randolph M. Ross
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Title: Vice President
BANK OF NOVA SCOTIA
By /s/ Stephen Lockhart
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Title: Vice President
BANK OF SCOTLAND
By /s/ W.P. Hendry
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Title: Senior Vice President
MERRILL LYNCH PRIME RATE PORTFOLIO
BY MERRILL LYNCH ASSET MANAGEMENT,
INC., as investment advisor
By /s/ Bobby Vaughan
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Title: Authorized Signatory
NATIONAL DEPOSIT LIFE INSURANCE
CO.
By /s/ Mark K. Okada
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Title: Manager-Fixed Income
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PROTECTIVE LIFE INSURANCE
COMPANY
By /s/ James Dondero
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Title: Chief Investigative
Officer NDLIC
RESTRUCTURED OBLIGATION BACKED
BY SENIOR ASSETS B.V.
By /s/ Mark L. Gold
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Title: Vice President
RYOSHIN LEASING (USA) INC.
By
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Title:
STICHTING RESTRUCTURED
OBLIGATIONS BACKED BY SENIOR
ASSETS 2 (ROSA2)
(Chancellor)
By /s/ Mark L. Gold
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Title: Vice President
TOKYO CITY FINANCE (ASIA)
LIMITED
By /s/ H. Maeda
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Title: Deputy General Manager
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TOYO TRUST AND BANKING
COMPANY, LTD. New York Branch
By
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Title:
TRAVELERS INSURANCE COMPANY
By /s/ Thomas T.S. Li
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Title: Assistant Investment
Officer
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ANNEX I
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AMENDMENT TO HOLDINGS AGREEMENT
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AMENDMENT (the "Amendment"), dated as of September __, 1992, between
COLTEC HOLDINGS, INC. ("Holdings") and BANKERS TRUST COMPANY, as Administrative
Agent on behalf of the financial institutions party to the Credit Agreement
referred to below. All capitalized terms used herein and not otherwise defined
shall have the respective meanings provided such terms in the Credit Agreement.
W I T N E S S E T H :
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WHEREAS, reference is made to the Credit Agreement, dated as of March
24, 1992, among Coltec Industries Inc, the financial institutions listed
therein, 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 (as amended to the date hereof,
the "Credit Agreement");
WHEREAS, Holdings and the Administrative Agent are parties to a letter
agreement, dated as of March 24, 1992 (the "Holdings Agreement");
WHEREAS, the parties wish to amend the Holdings Agreement as herein
provided.
NOW, THEREFORE, it is agreed:
1. The fourth paragraph of the Holdings Agreement shall be amended by
deleting the phrase "7% per annum" appearing in the fourth paragraph thereof and
inserting in lieu thereof the phrase "3% per annum".
2. This Amendment is limited as specified and shall not constitute a
modification, acceptance or waiver of any other provision of the Credit
Documents.
3. 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
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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.
4. 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.
5. This Amendment shall become effective on the date (the "Amendment
Effective Date") when Holdings and the Administrative Agent (at the direction,
or with the consent, of the Required Banks) shall have signed a copy hereof
(whether the same or different copies).
6. From and after the Amendment Effective Date all references in the
Holdings Agreement shall be deemed to be references to such Holdings Agreement
as amended hereby.
COLTEC HOLDINGS, INC.
By /s/ Paul Schoen
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Title: Vice President &
Treasurer
BANKERS TRUST COMPANY, as
Administrative Agent on
behalf of the Banks.
By /s/ Jeffrey J. Glibert
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Title: Managing Director
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