EXHIBIT 4.12
COLTEC INDUSTRIES INC,
ENPRO INDUSTRIES, INC.,
GOODRICH CORPORATION,
AND
THE BANK OF NEW YORK,
AS TRUSTEE
SECOND SUPPLEMENTAL INDENTURE
DATED AS OF MAY 31, 2002
SECOND SUPPLEMENTAL INDENTURE, dated as of May 31,
2002, among Coltec Industries Inc, a Pennsylvania
corporation (the "Company"), EnPro Industries, Inc.,
a North Carolina corporation ("EnPro"), Goodrich
Corporation, a New York corporation ("Goodrich"), and
The Bank of New York, a New York banking corporation,
as trustee (herein called the "Trustee"). Terms not
defined herein shall have the meanings assigned to
them in the Indenture (as defined below).
RECITALS
WHEREAS, the Company and the Trustee are parties to an Indenture, dated
as of April 14, 1998 (as amended prior to the date hereof, the "Indenture"),
relating to the Company's 5 1/4% Convertible Junior Subordinated Deferrable
Interest Debentures due 2028 (the "Securities");
WHEREAS, concurrently with the execution of this Second Supplemental
Indenture, Goodrich is spinning off EnPro through a distribution of EnPro's
common stock to Goodrich shareholders (the "Distribution"), in which Goodrich
shareholders will receive one share of the common stock, par value $.01 per
share, of EnPro ("EnPro Common Stock") for each five shares of the common stock,
par value $5 per share, of Goodrich ("Goodrich Common Stock") that they hold;
WHEREAS, the Company is a wholly-owned subsidiary of EnPro;
WHEREAS, pursuant to Section 13.08 of the Indenture, the Company has
determined that, immediately following the Distribution, the Securities will be
convertible into a combination of Goodrich Common Stock and EnPro Common Stock,
and that such adjustment shall be made in lieu of any other adjustment to the
conversion ratio of the Securities as a result of the Distribution pursuant to
Article XIII of the Indenture;
WHEREAS, each of EnPro and Goodrich agrees to be bound by the
conversion and adjustment provisions set forth in the Indenture;
WHEREAS, Section 9.01 of the Indenture provides that the Company, when
authorized by a Board Resolution, and the Trustee may enter into a supplemental
indenture, without the consent of any Holder, to, among other things, make
provision with respect to the conversion rights of Holders pursuant to the
requirements of Article XIII of the Indenture; and
WHEREAS, the Company and the Trustee have determined that this Second
Supplemental Indenture complies with Section 9.01 of the Indenture and does not
require the consent of any Holders and, on the basis of the foregoing, the
Trustee has determined that this First Supplemental Indenture is in form
satisfactory to it.
NOW, THEREFORE, for and in consideration of the premises, it is
mutually covenanted and agreed, for the equal and ratable benefit of the
Holders, as follows:
ARTICLE I
ADJUSTMENT OF CONVERSION RATE IN CONNECTION WITH DISTRIBUTION
Section 1.1. Conversion Rights. The Company hereby provides in
accordance with Section 13.08 of the Indenture that the Holder of each Security
outstanding immediately after the Distribution shall have the right, during the
period such Security shall be convertible as specified in Section 13.01 of the
Indenture, to convert such Security only into a combination of (a) 0.955248 of a
share of Goodrich Common Stock, and (b) 0.1910496 of a share of EnPro Common
Stock, subject to future adjustment subsequent to the Distribution as provided
in Article XIII of the Indenture.
ARTICLE II
FUTURE ADJUSTMENTS IN CONVERSION RATE
Section 2.1. Adjustment. Goodrich and EnPro unconditionally agree, as
required by Section 13.04 of the Indenture, to make any adjustments provided for
in Article XIII of the Indenture. Notwithstanding anything herein to the
contrary, the Company shall remain obligated under the Indenture and the
Securities, in accordance with the terms of the Indenture, as supplemented
hereby.
ARTICLE III
ACCEPTANCE OF SUPPLEMENTAL INDENTURE
Section 3.1. Trustee's Acceptance. The Trustee hereby accepts this
Second Supplemental Indenture and agrees to perform the same under the terms and
conditions set forth in the Indenture.
ARTICLE IV
GENERAL PROVISIONS
Section 4.1. Effect of Supplemental Indenture. On the date hereof, the
Indenture shall be supplemented in accordance herewith, and this Second
Supplemental Indenture shall form a part of the Indenture for all purposes, and
every Holder heretofore or hereafter authenticated and delivered under the
Indentures shall be bound thereby.
Section 4.2. Indenture Remains in Full Force and Effect. Except as
supplemented hereby, all provisions in the Indenture shall remain in full force
and effect.
Section 4.3. Incorporation of Indenture. All the provisions of this
Second Supplemental Indenture shall be deemed to be incorporated in, and made a
part of, the Indenture;
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and the Indenture, as supplemented and amended by this Second Supplemental
Indenture, shall be read, taken and construed as one and the same instrument.
Section 4.4. Headings. The headings of the Articles and Sections of
this Second Supplemental Indenture are inserted for convenience of reference and
shall not be deemed to be a part thereof.
Section 4.5. Counterparts. This Second Supplemental Indenture may be
executed in any number of counterparts, each of which so executed shall be
deemed to be an original, but all such counterparts shall together constitute
but one and the same instrument.
Section 4.6. Confirmation and Preservation of Indenture. The Indenture
as supplemented by this Second Supplemental Indenture is in all respects
confirmed and preserved.
Section 4.7. Conflict with Trust Indenture Act. If any provision of
this Second Supplemental Indenture limits, qualifies or conflicts with any
provision of the Trust Indenture Act that is required under the Trust Indenture
Act to be part of and govern any provision of this Second Supplemental
Indenture, the provision of the Trust Indenture Act shall control. If any
provision of this Second Supplemental Indenture modifies or excludes any
provision of the Trust Indenture Act that may be so modified or excluded, the
provision of the Trust Indenture Act shall be deemed to apply to the Indenture
as so modified or to be excluded by this Second Supplemental Indenture, as the
case may be.
Section 4.8. Successors. All covenants and agreements in this Second
Supplemental Indenture by the Company, EnPro, and Goodrich shall be binding upon
and accrue to benefit of their respective successors. All covenants and
agreements in this Second Supplemental Indenture by the Trustee shall be binding
upon and accrue to the benefit of its successors.
Section 4.9. Separability Clause. In case any provision in this Second
Supplemental Indenture shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
Section 4.10. Benefits of Second Supplemental Indenture. Nothing in
this Second Supplemental Indenture or the Securities, express or implied, shall
give to any Person, other than the parties hereto and thereto and their
successors hereunder and thereunder and the Holders, any benefit of any legal or
equitable right, remedy or claim under the Indenture, this Second Supplemental
Indenture or the Securities.
Section 4.11. Trustee not Responsible for Recitals. The recitals
contained herein shall be taken as the statements of the Company, EnPro and
Goodrich, and the Trustee assumes no responsibility for their correctness. The
Trustee makes no representations as to, and shall not be responsible for, the
validity or sufficiency of this Second Supplemental Indenture.
Section 4.12. Certain Duties and Responsibilities of the Trustees. In
entering into this Second Supplemental Indenture, the Trustee shall be entitled
to the benefit of every provision of the Indenture relating to the conduct or
affecting the liability or affording protection to the Trustee, whether or not
elsewhere herein so provided.
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Section 4.13. GOVERNING LAW. THIS SECOND SUPPLEMENTAL INDENTURE SHALL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
[Remainder of page intentionally blank.]
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IN WITNESS WHEREOF, the parties hereto have caused this Second
Supplemental Indenture to be duly executed, all as of the day and year first
above written.
COLTEC INDUSTRIES INC
By: /s/ Scott E. Kuechle
---------------------------------------
Name: Scott E. Kuechle
Title: Vice President & Treasurer
ENPRO INDUSTRIES, INC.
By: /s/ Richard L. Magee
----------------------------------------
Name: Richard L. Magee
Title: Senior Vice President & Secretary
GOODRICH CORPORATION
By: /s/ Scott E. Kuechle
----------------------------------------
Name: Scott E. Kuechle
Title: Vice President & Treasurer
THE BANK OF NEW YORK, as Trustee
By: /s/ Dorothy Miller
----------------------------------------
Name: Dorothy Miller
Title: Vice President
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