Exhibit 4.10
[CONFORMED COPY]
FIFTH AMENDMENT
FIFTH AMENDMENT (the "Amendment"), dated as of May 26, 1993, 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.
W I T N E S S E T H :
WHEREAS, the Company, the Banks, Bankers Trust Company, Chemical Bank
(as successor by merger with 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"); 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 3.01(b) of the Credit Agreement is hereby amended by
(i) inserting immediately following the phrase "a rate per annum of 2-3/4%"
appearing in subclause (x) of such Section, the following phrase: "less the then
applicable Leverage Reduction Discount, if any," and (ii) inserting immediately
following the phrase "an amount equal to 1-1/2%" appearing in subclause (y) of
such Section, the following phrase: "less the Leverage Reduction Discount, if
any, applicable on the date of issuance of such Trade Letter of Credit,".
2. Section 9.02 of the Credit Agreement is hereby amended by (i)
deleting the word "and" appearing at the end of clause (viii) of such
Section, (ii) deleting the period appearing at the end of clause (ix)
of such Section and inserting in lieu thereof the following phrase ";
and", and
(iii) inserting the following new clause "and (x) Delavan-Carroll Inc, a Wholly-
Owned Subsidiary of Delavan Inc may merge or consolidate with or into, Delavan
Inc so long as Delavan Inc is the surviving corporation; PROVIDED, that all
actions taken or documentation entered into, to effect any such merger or
consolidation shall be satisfactory to the Majority Agents".
3. Section 9.03 of the Credit Agreement is hereby amended by (i)
inserting imediately following the phrase "cash dividends" appearing in clause
(v)(C) of such Section the following phrase: "in an amount not to exceed $0.10
per share" and (ii) deleting the amount "$2,500,000" appearing in the last
proviso of such Section and inserting in lieu thereof the amount "$7,500,000".
4. Section 9.05 of the Credit Agreement is hereby amended by (i)
deleting subclause (x) of clause (j) of such Section in its entirety and (ii)
deleting the amount "$5,000,000" appearing in clause (l) of such Section and
inserting in lieu thereof the amount "$15,000,000".
5. Section 9.06 of the Credit Agreement is hereby amended by (i)
deleting clause (v) of such Section in its entirety and inserting in lieu
thereof the following clause (v):
"(v) the Company, its Domestic Subsidiaries and the Canadian
Subsidiaries may make loans, advances or capital contributions to
Foreign Subsidiaries of the Company in an aggregate amount not to
exceed $20,000,000 at any one time outstanding (determined without
regard to write-offs or write-downs of such loans, advances or
contributions), PROVIDED, that any such loan or advance shall be
evidenced by a promissory note which shall be in form and substance
satisfactory to the Majority Agents and to the extent any such Person
receives capital stock in connection with any such capital
contribution, such capital stock shall be pledged to the Collateral
Agent for the benefit of the Secured Creditors in accordance with, and
to the extent provided by, the applicable Pledge Agreement;"
6. Section 9.07 of the Credit Agreement is hereby amended by (i)
deleting the word "and" appearing at the end of clause (ii) of such Section, and
(ii) inserting at the end of clause (iii) of such Section immediately after the
phrase
"Tax Disaffiliation Agreement" the following new clause: ", and (iv)
intercompany transactions may be made to the extent permitted by Section
9.02(x)".
7. Section 9.13 of the Credit Agreement is hereby amended by deleting
clause (aa) of such Section in its entirety and inserting in lieu thereof the
following new clause (aa):
"and (aa) (I) repurchases and/or repayments of 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, (II) redemptions of 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,
(III) repurchases and/or repayments of the Existing Senior Debentures
at a purchase price not in excess of the Permitted Purchase Price for
each security repurchased or repaid and (IV) redemptions of the
Existing Senior Debentures in accordance with the terms of the
Existing Senior Indenture at a redemption price not in excess of the
redemption price set forth in the Existing Senior Indenture".
8. Section 9.17 of the Credit Agreement is hereby amended by
deleting the phrase "Permitted Acquisition" appearing therein and inserting in
lieu thereof the phrase "Permitted Transaction".
9. The definition of "Additional Permitted Debt Purchase Expenditure
Amount" in Section 11 of the Credit Agreement is hereby amended by deleting the
phrase "Existing Senior Debentures," each time it appears in sub-clause (y)(ii)
and (y)(iii) of such definition.
10. The definition of "Additional Permitted Transaction Expenditure
Amount" in Section 11 of the Credit Agreement is hereby amended by deleting the
phrase "Existing Senior Debentures," each time it appears in sub-clause (y)(ii)
and (y)(iii) of such definition.
11. The definition of "Immaterial Dissolutions" in Section 11 of the
Credit Agreement is hereby amended by deleting the phrase "which is an inactive
or shell corporation so long as such Subsidiary" appearing in such definition
and inserting in lieu thereof the following new phrase: ", provided that (i)
the total assets of any such Wholly-Owned Subsidiary are less than or equal to
$500,000, (ii) the chief financial officer of the Company has determined that
such liquidation or dissolution is in the best interests of the Company and its
Subsidiaries taken as a whole and will not materially and adversely affect the
Company and its Subsidiaries taken as a whole and (iii) such Wholly-Owned
Subsidiary".
II. GENERAL PROVISIONS
12. In order to induce the Banks to enter into this Amendment, the
Company hereby (i) makes each of the representations, warranties and agreements
contained in Section 7 of the Credit Agreement and (ii) represents and warrants
that there exists no Default or Event of Default, in each case on the Amendment
Effective Date (as hereinafter defined) both before and 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 (other than Section 1 hereof) shall become
effective on the 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. Section 1 of this Amendment shall become effective on the date
when the Company and each of the 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.
17. From and after the effective date of this Amendment as set forth
in Section 16 hereof, 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.
18. In order to induce the undersigned Banks to enter into this
Amendment, the Company hereby agrees to pay each Bank which executes and
delivers this Amendment to the Administrative Agent a non-refundable fee in an
amount equal to 1/16 of 1% of an amount equal to the sum of such Bank's
proportionate share of outstanding Term Loans and such Bank's Revolving Loan
Commitment. This fee shall be earned by a bank upon its execution and delivery
of this Amendment to the Administrative Agent prior to 5:00 p.m. on June 4, 1993
and shall be payable by the Company to the Administrative Agent for distribution
to such Banks on June 7, 1993; provided, that in the event this Amendment (other
than Section 1 hereof) shall not become effective in accordance with its terms
(other than as a result of any action or inaction on the part of the Company)
then the Company shall have no obligation to pay, and the Banks shall not be
entitled to, any fees pursuant to this paragraph 18.
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
----------------------------
Title: Senior Vice President
Finance & Treasurer
BANKERS TRUST COMPANY,
Individually, as Agent, as
Mortgagee and as
Administrative Agent
By /S/ MARY KAY COYLE
----------------------------
Title: Vice President
CHEMICAL BANK
(as successor by merger with
Manufacturers Hanover Trust
Company), Individually, and
as Agent
By /S/ WILLIAM M. LANE
----------------------------
Title: Managing Director
BARCLAYS BANK PLC, NEW YORK
BRANCH, Individually, and
as Agent
By /S/ RUSSELL GORMAN
----------------------------
Title: Director
CREDIT LYONNAIS NEW YORK
BRANCH, Individually, and
as Agent
By /S/ ATTILA KOC
----------------------------
Title: Vice President
CREDIT LYONNAIS CAYMAN ISLAND
BRANCH
By /S/ ATTILA KOC
----------------------------
Title: Vice President
Authorized Signature
BANK OF MONTREAL
By /S/ JOHN M. DENSON
----------------------------
Title: Managing Director
THE BANK OF NEW YORK
By /S/ WILLIAM A. KERR
----------------------------
Title: Vice President
THE BANK OF TOKYO TRUST
COMPANY
By /S/ NEAL HOFFSON
----------------------------
Title: Vice President
BANQUE FRANCAISE DU COMMERCE
EXTERIEUR
By /S/ DAVID S. KOPP
----------------------------
Title: Vice President
By /S/ JEAN RICHARD
----------------------------
Title: First Vice President
BANQUE PARIBAS
By /S/ STEPHEN M. BURNS
----------------------------
Title: Vice President
By /S/ M. STEVEN ALEXANDER
----------------------------
Title: Senior Vice President
THE CHASE MANHATTAN BANK, N.A.
By /S/ S. CLARKE MOODY
----------------------------
Title: Vice President
COMMONWEALTH BANK OF AUSTRALIA
By /S/ PETER F. EWERS
----------------------------
Title: First Vice President
EATON VANCE PRIME RATE
RESERVES
By /S/ BARBARA CAMPBELL
----------------------------
Title: Assistant Treasurer
THE FUJI BANK, LIMITED,
New York Branch
By /S/ NOBUAKI ONISHI
----------------------------
Title: Vice President
& Manager
GIROCREDIT BANK, New York
Branch
By /S/ RICHARD F. STONE
----------------------------
Title: Director-Specialized
Finance Department
THE INDUSTRIAL BANK OF JAPAN,
LIMITED, New York Branch
By /S/ JUNRI ODA
----------------------------
Title: Senior Vice President
& Senior Manager
THE LONG-TERM CREDIT BANK
OF JAPAN, LIMITED,
NEW YORK BRANCH
By /S/ MITSUO MATSUNAGA
----------------------------
Title: Vice President
THE MITSUBISHI TRUST AND
BANKING CORPORATION
By /S/ PATRICIA LORET DE MOLA
----------------------------
Title: Senior Vice President
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/ JAMES KYPRIOS
----------------------------
Title: Senior Vice President
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/ MARK A. OLINE
----------------------------
Title: Vice President
PRIME INCOME TRUST
By /S/ RAFAEL SCOLARI
----------------------------
Title: Investment Manager
ARAB BANKING CORP.
By /S/ LOUISE BILBRO
----------------------------
Title: Vice President
BAHRAIN MIDDLE EAST BANK E.C. New York Agency
By /S/ AUDREY BROWN
----------------------------
Title: Assistant Vice
President
By /S/ JACK MARCASCIANO
----------------------------
Title: Assistant Vice
President
BANK OF IRELAND
By /S/ RANDOLPH M. ROSS
----------------------------
Title: Vice President
THE BANK OF NOVA SCOTIA
By /S/ STEPHEN LOCKHART
----------------------------
Title: Vice President
BANK OF SCOTLAND
By /S/ ELIZABETH WILSON
----------------------------
Title: Vice President &
Branch Manager
MERRILL LYNCH PRIME FUND INC.
By /S/ R. DOUGLAS HENDERSON
----------------------------
Title: Authorized Signatory
MERRILL LYNCH PRIME RATE PORTFOLIO
BY MERRILL LYNCH INVESTMENT
MANAGEMENT, INC., as investment
advisor
By /S/ R. DOUGLAS HENDERSON
----------------------------
Title: Authorized Signatory
PROTECTIVE LIFE INSURANCE
COMPANY
By____________________________
Title:
By____________________________
Title:
RESTRUCTURED OBLIGATION BACKED
BY SENIOR ASSETS B.V.
By /S/ STEPHEN M. ALFIERI
----------------------------
Title: Vice President
RYOSHIN LEASING (USA) INC.
By____________________________
Title:
STICHTING RESTRUCTURED
OBLIGATIONS BACKED BY SENIOR
ASSETS 2 (ROSA2) (Chancellor)
By /S/ STEPHEN M. ALFIERI
----------------------------
Title: Vice President
TOKYO CITY FINANCE (ASIA)
LIMITED
By /S/ SADAMI KUBOTA
----------------------------
Title: Managing Director
TOYO TRUST AND BANKING
COMPANY, LTD. New York Branch
By____________________________
Title:
TRAVELERS INSURANCE COMPANY
By /S/ THOMAS T.S. LI
----------------------------
Title: Assistant Investment
Officer