EXHIBIT 4.5.1
FIRST AMENDMENT
TO AMENDED AND RESTATED NOTE AGREEMENT
FIRST AMENDMENT TO AMENDED AND RESTATED NOTE AGREEMENT (this "Amendment"),
dated as of July 31, 1997, among ROHR, INC. (together with its successors, the
"Company"), and each of the holders of Notes whose name appears on the signature
pages hereof (individually, a "Holder" and, collectively, the "Holders").
RECITALS:
WHEREAS, the Company entered into that certain Amended and Restated Note
Agreement (the "Note Agreement"), dated as of January 1, 1996, between the
Company and the purchasers identified on Annex 1 thereto; and
WHEREAS, the Company has requested that the Holders modify certain terms of
the Note Agreement; and
WHEREAS, the Holders are agreeable to such modifications on the terms and
conditions hereinafter set forth;
NOW THEREFORE, in consideration of the premises and other valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:
1. DEFINITIONS.
Capitalized terms used in this Amendment and not otherwise defined herein
shall have the respective meanings ascribed to them in the Note Agreement.
2. AMENDMENTS.
Subject to the satisfaction of the conditions set forth in paragraph 3
hereof, the Note Agreement shall be amended as set forth below:
2A. Paragraph 6E of the Note Agreement shall be amended as follows:
(i) The "." at the end of subparagraph (iii) thereof shall be deleted
and replaced with the term "; less", and
(ii) New subparagraphs (iv)and (v) shall be added thereto in
appropriate numerical order as follows:
"(iv) an amount equal, on an after tax basis, to the provisions
and charges established
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by the Company at one time in fiscal 1998 or earlier in connection
with the MD-90 program, assuming a forty percent (40%) effective tax
rate, such amount not to exceed Forty Eight Million Dollars
($48,000,000); less
"(v) an amount equal, on an after tax basis, to the
provisions and charges established by the Company at one time in
fiscal 1998 or earlier in connection with the cessation of the use of
the program method of accounting, assuming a forty percent (40%)
effect tax rate, such amount not to exceed Forty Two Million Dollars
($42,000,000)."
2B. Paragraph 10B of the Note Agreement shall be amended by adding to
subparagraph (ii) of the definition of "Consolidated Net Income Available for
Fixed Charges" the following clauses in appropriate alphabetical order:
"(i) the provisions and charges, if any, not in excess of Eighty
Million Dollars ($80,000,000), established by the Company at one time in
fiscal 1998 or earlier in connection with the MD-90 program; and
(j) the provisions and charges, if any, not in excess of Seventy
Million Dollars ($70,000,000), established by the Company at one time in
fiscal 1998 or earlier in connection with the cessation of the use of the
program method of accounting."
2C. The first sentence of paragraph 11F of the Note Agreement shall be
amended and restated to read as follows:
"All accounting terms not specifically defined herein shall be
construed in accordance with generally accepted accounting principles
consistent with those applied in the preparation of the financial
statements contained in the Company's Annual Report on Form 10-K for the
fiscal year ended July 31, 1997."
3. CONDITIONS TO EFFECTIVENESS.
The amendments set forth in Paragraph 2 shall become effective only upon
the satisfaction in all respects of the conditions set forth below (the date on
which such conditions are so satisfied being the "Effective Date"):
3A. The Required Holders and the Company shall have caused this Amendment
to be executed and delivered on their behalf by duly authorized officers thereof
and the Note Agreement, as amended hereby, shall be in full force and effect.
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3B. Sections XVII (j) and (k) of the Sublease Agreement, dated as of
September 14, 1992, between the Company and State Street Bank and Trust Company
of California, National Association, and an individual trustee, not in their
individual capacities but solely as owner trustees under a trust for the benefit
of General Electric Capital Corporation, as amended through the date hereof,
shall have been amended, in substance and effect, in the same manner as set
forth in paragraphs 2A, 2B and 2C hereof, and each of the Holders shall have
received a copy of such amendment.
3C. The Company shall have paid all amounts which are payable pursuant to
paragraph 4 hereof.
4. COSTS AND EXPENSES.
Whether or not the conditions to effectiveness set forth in paragraph 3 of
this Amendment are satisfied, the Company shall pay all out-of-pocket expenses
of the Holders in connection with the negotiation, preparation, execution and
delivery of this Amendment, including, without limitation, all the fees and
expenses of special counsel engaged by the Holders in connection therewith.
Without limiting the generality of the foregoing, the Company will pay, on the
Effective Date, the reasonable fees and disbursements of the Holders' special
counsel presented on such date, and shall also pay, upon receipt of any
statement thereof, each additional statement for reasonable fees and
disbursements of the Holders' special counsel rendered after the Effective Date
in connection with this Amendment.
5. MISCELLANEOUS.
5A. All provisions of this Amendment by or for the benefit of the parties
hereto shall bind and inure to the benefit of their respective successors and
assigns hereunder.
5B. This Amendment may be executed in one or more counterparts, all of
which taken together shall constitute a single instrument.
5C. THIS AMENDMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND
THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE INTERNAL LAWS OF THE STATE
OF NEW YORK.
5D. Except as expressly provided herein, (i) no other terms and provisions
of the Note Agreement shall be modified or changed by this Amendment and (ii)
the terms and provisions of the Note Agreement shall continue in full force and
effect. The Company hereby acknowledges and reaffirms all of its obligations
and duties under the Note
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Agreement, as amended by this Amendment, and under the notes, as amended to
date, issued thereunder.
5E. Any provision of this Amendment which is prohibited or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their respective authorized officers as of the day and year
fist above written.
ROHR, INC.
By:/s/ Ken Scholz
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Name: Ken Scholz
Title: Treasurer
PRINCIPAL MUTUAL LIFE INSURANCE COMPANY
By: /s/ Warren Shank
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Name: Warren Shank
Title: Counsel
By: /s/ Fredrick A. Bell
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Name: Fredrick A. Bell
Title: Second Vice
President - Securities
Investment
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