Exhibit 4.1
AMENDMENT
AMENDMENT, dated as of May 16, 1994 (this "AMENDMENT"), to the Credit
Agreement, dated as of September 1, 1992 (as amended, supplemented or otherwise
modified prior to the date hereof, the "CREDIT AGREEMENT"), among W. R. GRACE &
CO.-CONN., a Connecticut corporation (the "COMPANY"), W. R. GRACE & CO., a New
York corporation ("GRACE NEW YORK"), the banks and other financial institutions
parties thereto (the "BANKS") and CHEMICAL BANK, a New York banking corporation,
as agent (in such capacity the "AGENT") for the Banks.
W I T N E S S E T H :
WHEREAS, the Company and Grace New York have requested the Agent and
the Banks to agree to amend certain provisions to the Credit Agreement as set
forth in this Amendment; and
WHEREAS, the Agent and the Banks are willing to agree to such
amendment, but only on the terms and subject to the conditions set forth in this
Amendment;
NOW, THEREFORE, in consideration of the premises and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company, Grace New York and the Agent hereby agree as follows:
1. DEFINITIONS. Unless otherwise defined herein, terms defined in
the Credit Agreement are used herein as therein defined.
2. AMENDMENT. The definition of "EBIT" in subsection 1.1 of the
Credit Agreement is hereby amended by:
(a) inserting immediately after the comma at the end of clause (c)
thereof the following new clause (d):
"PLUS (d) non-cash pre-tax charges against earnings in the approximate
amount of $316,000,000 recorded by Grace New York during the fiscal
quarter ending
June 30, 1994 to recognize the reduction in insurance coverage for
asbestos property damage litigation and claims (to the extent that
such amount has been deducted in determining the amount set forth
opposite the caption "Income from continuing operations" (or the
equivalent caption) for such period),"
(b) relettering existing clause (d) thereof as clause (e), and
(c) inserting immediately before the period at the end of such
definition the
following new clause (f):
"MINUS (f) any payments made in respect of asbestos property damage
litigation and claims which pertain to the charges referred to in
clause (d) of this definition for such period."
3. EFFECTIVENESS. This Amendment shall become effective upon
receipt by the Agent of evidence satisfactory to the Agent that this Amendment
has been executed and delivered by the Company, Grace New York and the Majority
Banks.
4. REPRESENTATIONS AND WARRANTIES. To induce the Agent and the
Banks to enter into this Amendment, the Company and Grace New York hereby
represent and warrant to the Agent and the Banks that, after giving effect to
the amendment provided for herein, the representations and warranties contained
in the Credit Agreement and the other Loan Documents (if any) will be true and
correct in all material respects as if made on and as of the date of
effectiveness hereof and that as of such date no Default or Event of Default
will have occurred and be continuing.
5. NO OTHER AMENDMENTS. Except as expressly amended hereby, the
Credit Agreement and the other Loan Documents (if any) shall remain in full
force and effect in accordance with their respective terms.
6. COUNTERPARTS. This Amendment may be executed by one or more of
the parties hereto on any number of separate counterparts and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
7. EXPENSES. The Company and Grace New York agree to pay and
reimburse the Agent for all of the out-of-pocket costs and expenses incurred by
the Agent in connection with the preparation, execution and delivery of this
Amendment, including, without limitation, the fees and disbursements of Simpson
Thacher & Bartlett, counsel to the Agent.
8. APPLICABLE LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered as of the day and year first above written.
W. R. GRACE & CO.-CONN.
By:__________________________
Title:
W. R. GRACE & CO.
By:__________________________
Title:
CHEMICAL BANK, as Agent
By:_______________________________
Title:
The undersigned Banks hereby consent and agree to the foregoing
Amendment:
CHEMICAL BANK
By:_______________________________
Title:
ABN AMRO BANK N.V.
By:_______________________________
Title:
By:_______________________________
Title:
THE CHASE MANHATTAN BANK, N.A.
By:_______________________________
Title:
CITIBANK, N.A.
By:_______________________________
Title:
COMMERZBANK AKTIENGESELLSCHAFT, ATLANTA AGENCY
By:_______________________________
Title:
By:_______________________________
Title:
MORGAN GUARANTY TRUST COMPANY OF NEW YORK
By:_______________________________
Title:
NATIONSBANK OF FLORIDA, N.A.
By:_______________________________
Title:
BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION
By:_______________________________
Title:
THE BANK OF NOVA SCOTIA
By:_______________________________
Title:
BARCLAYS BANK PLC
By:_______________________________
Title:
CREDIT LYONNAIS ATLANTA AGENCY
By:_______________________________
Title:
DRESDNER BANK AG NEW YORK AND GRAND CAYMAN
BRANCHES
By:_______________________________
Title:
By:_______________________________
Title:
THE HONGKONG AND SHANGHAI BANKING CORPORATION
LIMITED
By:_______________________________
Title:
SWISS BANK CORPORATION -- NEW YORK BRANCH
By:_______________________________
Title:
By:_______________________________
Title:
UNION BANK OF SWITZERLAND
By:_______________________________
Title:
By:_______________________________
Title:
J.P. MORGAN DELAWARE
By:_______________________________
Title:
CONTINENTAL BANK, N.A.
By:_______________________________
Title: