Exhibit 4.11
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FORM OF
GUARANTEE AGREEMENT
BETWEEN
ENPRO INDUSTRIES, INC.
AND
THE BANK OF NEW YORK
DATED AS OF ____________, 2002
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CROSS-REFERENCE TABLE(1)
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Section of
Trust Indenture Act Section of
of 1939, as amended Guarantee Agreement
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310(a)................................................ 4.01(a)
310(b)................................................ 4.01(c), 2.08
310(c)................................................ 4.01(a)
311(a)................................................ 2.02(b)
311(b)................................................ 2.02(b)
311(c)................................................ Inapplicable
312(a)................................................ 2.02(a)
312(b)................................................ 2.02(b)
313................................................... 2.03
314(a)................................................ 2.04
314(b)................................................ Inapplicable
314(c)................................................ 2.05
314(d)................................................ Inapplicable
314(e)................................................ 1.01, 2.05, 3.02
314(f)................................................ 2.01, 3.02
315(a)................................................ 3.01(d)
315(b)................................................ 2.07
315(c)................................................ 3.01
315(d)................................................ 3.01(d)
316(a)................................................ 1.01, 2.06, 5.04
316(b)................................................ 5.03
317(a)................................................ Inapplicable
317(b)................................................ Inapplicable
318(a)................................................ 2.01(b)
318(b)................................................ 2.01
318(c)................................................ 2.01(a)
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(1) This Cross-Reference Table does not constitute part of the Guarantee
Agreement and shall not affect the interpretation of any of its terms or
provisions.
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TABLE OF CONTENTS
Page
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ARTICLE I
Definitions
Section 1.01. Definitions...........................................................2
ARTICLE II
Trust Indenture Act
Section 2.01. Trust Indenture Act; Application......................................5
Section 2.02. List of Holders.......................................................5
Section 2.03. Reports by the Guarantee Trustee......................................6
Section 2.04. Periodic Reports to the Guarantee Trustee.............................6
Section 2.05. Evidence of Compliance with Conditions Precedent......................6
Section 2.06. Events of Default; Waiver.............................................6
Section 2.07. Event of Default; Notice..............................................7
Section 2.08. Conflicting Interests.................................................7
ARTICLE III
Powers, Duties and Rights of the Guarantee Trustee
Section 3.01. Powers and Duties of the Guarantee Trustee............................7
Section 3.02. Certain Rights of Guarantee Trustee...................................8
Section 3.03. Indemnity............................................................10
Section 3.04. Expenses.............................................................10
ARTICLE IV
Guarantee Trustee
Section 4.01. Guarantee Trustee; Eligibility.......................................11
Section 4.02. Appointment, Removal and Resignation of the Guarantee Trustee........11
ARTICLE V
Guarantee
Section 5.01. Guarantee............................................................12
Section 5.02. Waiver of Notice and Demand..........................................12
Section 5.03. Obligations Not Affected.............................................12
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Page
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Section 5.04. Rights of Holders....................................................13
Section 5.05. Guarantee of Payment.................................................13
Section 5.06. Subrogation..........................................................13
Section 5.07. Independent Obligations..............................................14
ARTICLE VI
Covenants and Subordination
Section 6.01. Subordination........................................................14
Section 6.02. Pari Passu Guarantees................................................14
ARTICLE VII
Consolidation, Merger, Conveyance, Transfer or Lease
Section 7.01. Guarantor May Consolidate, etc., Only on Certain Terms...............14
ARTICLE VIII
Termination
Section 8.01. Termination..........................................................15
ARTICLE IX
Miscellaneous
Section 9.01. Successors and Assigns...............................................15
Section 9.02. Amendments...........................................................15
Section 9.03. Notices..............................................................15
Section 9.04. Benefit..............................................................17
Section 9.05. Interpretation.......................................................17
Section 9.06. Governing Law........................................................17
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GUARANTEE AGREEMENT, dated as of _____________, 2002, executed and
delivered by ENPRO INDUSTRIES, INC., a North Carolina corporation (the
"Guarantor"), and THE BANK OF NEW YORK, a New York banking corporation, as
trustee (the "Guarantee Trustee"), for the benefit of the Holders (as defined
herein) from time to time of the Convertible Preferred Securities (as defined
herein) of COLTEC CAPITAL TRUST, a Delaware statutory business trust (the
"Issuer").
WHEREAS, pursuant to an Amended and Restated Declaration of Trust (the
"Declaration"), dated as of April 14, 1998, executed by Coltec Industries Inc,
as sponsor ("Coltec Industries"), The Bank of New York (Delaware), as Delaware
Trustee, The Bank of New York, as Property Trustee, and the Administrative
Trustees named therein, the Issuer issued $150,000,000 aggregate liquidation
amount of its 5 1/4% Convertible Preferred Securities, Term Income Deferrable
Equity Securities (TIDES (SM))(2) liquidation amount $50 per security (the
"Convertible Preferred Securities"), and $4,639,200 aggregate liquidation amount
of its Common Securities, liquidation amount $50 per security (the "Common
Securities" and, collectively with the Convertible Preferred Securities, the
"Trust Securities"), representing undivided beneficial ownership interests in
the assets of the Issuer and having the terms set forth in the Declaration;
WHEREAS, the Trust Securities were issued by the Issuer and the proceeds
thereof were used to purchase the 5 1/4% Convertible Junior Subordinated
Debentures due April 15, 2028 (as defined in the Declaration) (the "Convertible
Junior Subordinated Debentures") of Coltec Industries which were deposited with
the Property Trustee under the Declaration, as trust assets;
WHEREAS, Xxxxxxxx Corporation, a New York corporation ("Xxxxxxxx"), and
100% owner of the Guarantor, has transferred 100% of the common stock of Coltec
Industries to the Guarantor and contemplates spinning off the Guarantor through
a distribution of the Guarantor's common stock to Xxxxxxxx shareholders (the
"Distribution"), and Coltec Industries will be a wholly-owned subsidiary of the
Guarantor following the Distribution;
WHEREAS, Coltec Industries owns all of the outstanding Common Securities of
Coltec Capital Trust;
WHEREAS, each Convertible Preferred Security will be convertible, at the
option of the Holder, into a combination of 0.955248 of a share of the common
stock, par value $5 per share, of Xxxxxxxx, and 0.1910496 of a share of the
common stock, par value $.01 per share, of the Guarantor, subject to certain
adjustments; and
WHEREAS, the Guarantor desires to provide certain assurances with respect
to the Trust Securities, including its agreement (i) to pay to the Holders of
the Trust Securities the
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(2) The terms Term Income Deferrable Equity Securities (TIDES)(SM) and
TIDES(SM) are registered service marks of Credit Suisse First Boston
Corporation.
Guarantee Payments (as defined herein) and to make certain other payments on the
terms and conditions set forth herein and (ii) to otherwise guarantee the
performance of the obligations of Coltec Industries under (w) the Guarantee
Agreement, dated as of April 14, 1998 (the "Coltec Guarantee Agreement"),
between Coltec Industries and The Bank of New York, (x) the Indenture, (y) the
Convertible Junior Subordinated Debentures, and (z) the Declaration;
NOW, THEREFORE, intending to be legally bound hereby, the Guarantor
executes and delivers this Guarantee Agreement for the benefit of the Holders
from time to time of the Trust Securities.
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. As used in this Guarantee Agreement, the terms
set forth below shall, unless the context otherwise requires, have the following
meanings. Capitalized or otherwise defined terms used but not otherwise defined
herein shall have the meanings assigned to such terms in the Declaration as in
effect on the date hereof.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person; provided, however, that the Issuer shall be
deemed not to be an Affiliate of the Guarantor. For the purposes of this
definition, "control" when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; the terms "controlling" and "controlled" have meanings correlative to
the foregoing.
"Coltec Guarantee Agreement" has the meaning specified in the sixth recital
to this Guarantee Agreement.
"Coltec Industries" has the meaning specified in the first recital to this
Guarantee Agreement.
"Common Securities" has the meaning specified in the first recital of this
Guarantee Agreement.
"Convertible Junior Subordinated Debentures" has the meaning specified in
the second recital of this Guarantee Agreement.
"Convertible Preferred Securities" has the meaning specified in the first
recital of this Guarantee Agreement.
"Debt" means (i) the principal of, premium, if any, unpaid interest
(including interest accruing on or after the filing of any petition in
bankruptcy or for reorganization relating to the Guarantor at the relevant
contracted rate specified in the documentation for the relevant Debt whether or
not such claim for post-petition interest is allowed in such proceeding) on, and
all other Obligations relating to, indebtedness for money borrowed (including
any guarantee relating to the foregoing obligations), (ii) purchase money and
similar obligations, (iii) obligations under
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capital lease, letters of credit and reimbursement obligations relating thereto,
(iv) guarantees, assumptions or purchase commitments relating to, or other
transactions as a result of which the Guarantor is responsible for the payment
of such indebtedness of others, (v) renewals, extensions and refundings of any
such indebtedness, (vi) interest or obligations in respect of any such
indebtedness accruing after the commencement of any insolvency or bankruptcy
proceedings (at the relevant contractual rate specified in the documentation
therefor, whether or not such claim for post-petition interest is allowed in
such proceeding), (vii) all obligations to make payment pursuant to the terms of
financial instruments, such as (a) securities contracts and foreign currency
exchange contracts, (b) derivative instruments, such as swap agreements
(including interest rate and foreign exchange rate swap agreements), cap
agreements, floor agreements, collar agreements, interest rate agreements,
foreign exchange agreements, options, commodity futures contracts and commodity
options contracts and (c) similar financial instruments, and (viii) any
deferrals, renewals or extensions of any such Debt.
"Declaration" has the meaning specified in the first recital to this
Guarantee Agreement.
"Event of Default" means a default by the Guarantor on any of its payment
or other obligations under this Guarantee Agreement; provided, however, that,
except with respect to a default in payment of any Guarantee Payments, the
Guarantor shall have received notice of default and shall not have cured such
default within 60 days after receipt of such notice.
"Guarantee Payments" means the following payments or distributions, without
duplication, with respect to the Convertible Preferred Securities, to the extent
not paid or made by or on behalf of the Issuer: (i) any accrued and unpaid
Distributions (as defined in the Declaration) required to be paid on the Trust
Securities, to the extent the Issuer shall have funds on hand available therefor
at such time; (ii) the redemption price, including all accrued and unpaid
Distributions to the date of redemption (the "Redemption Price"), with respect
to the Trust Securities called for redemption by the Issuer to the extent the
Issuer shall have funds on hand available therefor at such time; and (iii) upon
a voluntary or involuntary dissolution, winding-up or liquidation of the Issuer,
unless Convertible Junior Subordinated Debentures are distributed to the Holders
of the Trust Securities or all the Trust Securities are redeemed, the lesser of
(a) the aggregate of the liquidation amount of $50 per Trust Security plus
accrued and unpaid Distributions on the Trust Securities to the date of payment
(the "Liquidation Distribution") to the extent the Issuer shall have funds on
hand available to make such payment at such time and (b) the amount of assets of
the Issuer remaining available for distribution to Holders of the Trust
Securities upon liquidation of the Issuer after satisfaction of liabilities to
creditors of the Issuer as required by applicable law.
"Guarantee Trustee" means The Bank of New York, until a Successor Guarantee
Trustee has been appointed and has accepted such appointment pursuant to the
terms of this Guarantee Agreement and thereafter means each such Successor
Guarantee Trustee.
"Guarantor" has the meaning specified in the first recital of this
Guarantee Agreement.
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"Holder" means any holder, as registered on the books and records of the
Issuer, of any Trust Securities; provided, however, that in determining whether
the holders of the requisite percentage of Trust Securities have given any
request, notice, consent or waiver hereunder, "Holder" shall not include the
Guarantor, the Guarantee Trustee, or any Affiliate of the Guarantor or the
Guarantee Trustee.
"Indenture" means the Indenture dated as of April 14, 1998, as amended or
supplemented, between Coltec Industries and The Bank of New York, as trustee,
relating to the issuance of Convertible Junior Subordinated Debentures.
"Issuer" has the meaning specified in the first recital of this Guarantee
Agreement.
"List of Holders" has the meaning specified in Section 2.02(a).
"Majority in liquidation amount of the Trust Securities" means, except as
provided by the Trust Indenture Act, a vote by the Holders, voting separately as
a class, of more than 50% of the aggregate liquidation amount of all then
outstanding Trust Securities issued by the Issuer.
"Obligations" means all obligations for principal, premium, interest,
penalties, fees, indemnifications, reimbursements, damages and other liabilities
payable under, or with respect to, the documentation governing any Debt.
"Officers' Certificate" means, with respect to any Person, a certificate
signed by the Chairman and Chief Executive Officer, the President or any Vice
President, and by the Treasurer, any Assistant Treasurer, the Controller, the
Secretary or an Assistant Secretary of such Person, and delivered to the
Guarantee Trustee. Any Officers' Certificate delivered with respect to
compliance with a condition or covenant provided for in this Guarantee Agreement
shall include:
(a) a statement that each officer signing the Officers' Certificate
has read the covenant or condition and the definitions relating thereto;
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in the
Officers' Certificate are based;
(c) a statement that each officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such
officer to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(d) a statement as to whether, in the opinion of each officer, such
condition or covenant has been complied with.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unin-
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corporated association, or government or any agency or political subdivision
thereof, or any other entity of whatever nature.
"Responsible Officer," when used with respect to the Guarantee Trustee,
means any officer assigned to the Corporate Trust Office, including any vice
president, assistant vice president, assistant treasurer, assistant secretary or
any other officer of the Guarantee Trustee customarily performing functions
similar to those performed by any of the above designated officers and having
direct responsibility for the administration of this Guarantee Agreement, and
also, with respect to a particular matter, any other officer to whom such matter
is referred because of such officer's knowledge of and familiarity with the
particular subject.
"Senior Debt" means any Debt of the Guarantor, whether outstanding on the
date of execution of the Indenture or thereafter created, assumed or incurred,
except such Debt that is expressly stated to rank junior in right of payment to,
or pari passu in right of payment with, the Convertible Junior Subordinated
Debentures (or any guarantee thereof); provided, however, that Senior Debt shall
not be deemed to include (a) any Debt of the Guarantor which, when incurred and
without respect to any election under Section 1111(b) of the United States
Bankruptcy Code of 1978, was without recourse to the Guarantor, (b) trade
accounts payable and accrued liabilities arising in the ordinary course of
business, (c) any Debt of the Guarantor to any of its subsidiaries, or (d) any
Debt to any employee of the Guarantor.
"Successor Guarantee Trustee" means a successor Guarantee Trustee
possessing the qualifications to act as Guarantee Trustee under Section 4.01.
"Trust Indenture Act" means the Trust Indenture Act of 1939 (15 U.S.C.
Sections 77aaa-77bbbb), as amended.
"Trust Securities" has the meaning specified in the first recital of this
Guarantee Agreement.
ARTICLE II
TRUST INDENTURE ACT
Section 2.01. Trust Indenture Act; Application. (a) This Guarantee
Agreement will be qualified under the Trust Indenture Act upon the effectiveness
of a registration statement with respect to this Guarantee Agreement. This
Guarantee Agreement incorporates certain provisions of the Trust Indenture Act
identified in the Cross-Reference Table set forth in this Guarantee Agreement.
(b) Upon qualification under the Trust Indenture Act as contemplated in
clause (a) above, if and to the extent that any provision of this Guarantee
Agreement limits, qualifies or conflicts with the duties imposed by Sections 310
to 317, inclusive, of the Trust Indenture Act, such imposed duties shall
control.
Section 2.02. List of Holders. (a) At the request of the Guarantee Trustee,
the Guarantor shall furnish or cause to be furnished to the Guarantee Trustee
(i) semiannually, on or before February 1st and August 1st of each year, a list,
in such form as the Guarantee Trustee
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may reasonably require, of the names and addresses of the Holders ("List of
Holders") as of a date not more than 15 days prior to the delivery thereof, and
(ii) at such other times as the Guarantee Trustee may request in writing, within
30 days after the receipt by the Guarantor of any such request, a List of
Holders as of a date not more than 15 days prior to the time such list is
furnished, in each case to the extent such information is in the possession or
control of the Guarantor and is not identical to a previously supplied list of
Holders or has not otherwise been received by the Guarantee Trustee in its
capacity as such. The Guarantee Trustee may destroy any List of Holders
previously given to it on receipt of a new List of Holders.
(b) The Guarantee Trustee shall comply with its obligations under Section
311(a), Section 311(b) and Section 312(b) of the Trust Indenture Act.
Section 2.03. Reports by the Guarantee Trustee. (a) The Guarantee Trustee
shall transmit to Holders such reports concerning the Guarantee Trustee and its
actions under this Guarantee as may be required pursuant to the Trust Indenture
Act, at the times and in the manner provided pursuant thereto.
(b) Reports so required to be transmitted at stated intervals of not more
than 12 months shall be transmitted no later than May 15th in each calendar
year, commencing with May 15, 2000.
(c) A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Guarantee Trustee with each securities exchange upon
which the Convertible Preferred Securities are listed and also with the
Securities and Exchange Commission. The Guarantor will promptly notify the
Guarantee Trustee whenever the Convertible Preferred Securities are listed on
any securities exchange.
Section 2.04. Periodic Reports to the Guarantee Trustee. The Guarantor
shall provide to the Guarantee Trustee, and, if required by the Trust Indenture
Act, to the Securities and Exchange Commission and the Holders, such documents,
reports and information, if any, as required by Section 314 of the Trust
Indenture Act and the compliance certificate required by Section 314 of the
Trust Indenture Act, in the form, in the manner and at the times required by
Section 314 of the Trust Indenture Act. The Guarantor shall file annually with
the Guarantee Trustee a certificate as to whether or not the Guarantor is in
compliance with all the conditions and covenants applicable to it under this
Guarantee Agreement.
Section 2.05. Evidence of Compliance with Conditions Precedent. The
Guarantor shall provide to the Guarantee Trustee such evidence of compliance
with such conditions precedent, if any, provided for in this Guarantee Agreement
that relate to any of the matters set forth in Section 314(c) of the Trust
Indenture Act. Any certificate or opinion required to be given by any officer
pursuant to Section 314(c)(1) may be given in the form of an Officers'
Certificate.
Section 2.06. Events of Default; Waiver. The Holders of a Majority in
liquidation amount of the Convertible Preferred Securities may, by vote, on
behalf of the Holders, waive any past Event of Default and its consequences.
Upon such waiver, any such Event of Default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have
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been cured, for every purpose of this Guarantee Agreement, but no such waiver
shall extend to any subsequent or other default or Event of Default or impair
any right consequent therefrom.
Section 2.07. Event of Default; Notice. (a) The Guarantee Trustee shall,
within 90 days after the occurrence of an Event of Default, transmit by mail,
first class postage prepaid, to the Holders, notices of all Events of Default
known to a Responsible Officer of the Guarantee Trustee, unless such Events of
Default actually have been cured before the giving of such notice; provided,
that, except in the case of a default in the payment of a Guarantee Payment, the
Guarantee Trustee shall be protected in withholding such notice if and so long
as the Board of Directors, the executive committee or a trust committee of
directors and/or Responsible Officers in good faith determine that the
withholding of such notice is in the interests of the Holders.
(b) The Guarantee Trustee shall not be deemed to have knowledge of any
Event of Default unless a Responsible Officer charged with the administration of
the Guarantee shall have received written notice of such Event of Default.
Section 2.08. Conflicting Interests. The Declaration shall be deemed to be
specifically described in this Guarantee Agreement for the purposes of clause
(i) of the first proviso contained in Section 310(b) of the Trust Indenture Act.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE
Section 3.01. Powers and Duties of the Guarantee Trustee. (a) This
Guarantee Agreement shall be held by the Guarantee Trustee for the benefit of
the Holders, and the Guarantee Trustee shall not transfer this Guarantee
Agreement to any Person except a Holder exercising his or her rights pursuant to
Section 5.04(iv) hereof or to a Successor Guarantee Trustee on acceptance by
such Successor Guarantee Trustee of its appointment to act as Successor
Guarantee Trustee. The right, title and interest of the Guarantee Trustee shall
automatically vest in any Successor Guarantee Trustee, upon acceptance by such
Successor Guarantee Trustee of its appointment hereunder, and such vesting and
cessation of title shall be effective whether or not conveyancing documents have
been executed and delivered pursuant to the appointment of such Successor
Guarantee Trustee.
(b) If an Event of Default has occurred and is continuing, the Guarantee
Trustee shall enforce this Guarantee Agreement for the benefit of the Holders.
(c) The Guarantee Trustee, before the occurrence of any Event of Default
and after the curing of all Events of Default that may have occurred, shall
undertake to perform only such duties as are specifically set forth in this
Guarantee Agreement, and no implied covenants shall be read into this Guarantee
Agreement against the Guarantee Trustee. In case an Event of Default has
occurred (that has not been cured or waived pursuant to Section 2.06), the
Guarantee Trustee shall exercise such of the rights and powers vested in it by
this Guarantee Agreement, and use the same degree of care and skill in its
exercise thereof, as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.
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(d) No provision of this Guarantee Agreement shall be construed to relieve
the Guarantee Trustee from liability for its own negligent action, its own
negligent failure to act or its own willful misconduct, except that:
(i) prior to the occurrence of any Event of Default and after the
curing or waiving of all such Events of Default that may have occurred:
(A) the duties and obligations of the Guarantee Trustee shall be
determined solely by the express provisions of this Guarantee
Agreement, and the Guarantee Trustee shall not be liable except for
the performance of such duties and obligations as are specifically set
forth in this Guarantee Agreement; and
(B) in the absence of bad faith on the part of the Guarantee
Trustee, the Guarantee Trustee may conclusively rely, as to the truth
of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Guarantee
Trustee and conforming to the requirements of this Guarantee
Agreement; but in the case of any such certificates or opinions that
by any provision hereof or of the Trust Indenture Act are specifically
required to be furnished to the Guarantee Trustee, the Guarantee
Trustee shall be under a duty to examine the same to determine whether
or not they conform to the requirements of this Guarantee Agreement
(but need not confirm or investigate the accuracy of mathematical
calculations or other facts stated therein);
(ii) the Guarantee Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Guarantee
Trustee, unless it shall be proved that the Guarantee Trustee was negligent
in ascertaining the pertinent facts upon which such judgment was made;
(iii) the Guarantee Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance with
the direction of the Holders of not less than a Majority in liquidation
amount of the Trust relating to the time, method and place of conducting
any proceeding for any remedy available to the Guarantee Trustee, or
exercising any trust or power conferred upon the Guarantee Trustee under
this Guarantee Agreement; and
(iv) no provision of this Guarantee Agreement shall require the
Guarantee Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its duties or in
the exercise of any of its rights or powers.
Section 3.02. Certain Rights of Guarantee Trustee. (a) Subject to the
provisions of Section 3.01:
(i) The Guarantee Trustee may conclusively rely and shall be fully
protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order,
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bond, debenture, note, other evidence of indebtedness or other paper or
document (whether in its original or facsimile form) reasonably believed by
it to be genuine and to have been signed, sent or presented by the proper
party or parties.
(ii) Any direction or act of the Guarantor contemplated by this
Guarantee Agreement shall be sufficiently evidenced by an Officers'
Certificate unless otherwise prescribed herein.
(iii) Whenever, in the administration of this Guarantee Agreement, the
Guarantee Trustee shall deem it desirable that a matter relating to
compliance by the Guarantor with any of its obligations contained in this
Guarantee Agreement be proved or established before taking, suffering or
omitting to take any action hereunder, the Guarantee Trustee (unless other
evidence is herein specifically prescribed) may, in the absence of bad
faith on its part, request and conclusively rely upon an Officers'
Certificate (with respect to the Guarantor) which, upon receipt of such
request from the Guarantee Trustee, shall be promptly delivered by the
Guarantor.
(iv) The Guarantee Trustee may consult with legal counsel of its
selection, and the advice or written opinion of such legal counsel with
respect to legal matters shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted to be taken
by it hereunder in good faith and in accordance with such advice or
opinion. Such legal counsel may be legal counsel to the Guarantor or any of
its Affiliates and may be one of its employees. The Guarantee Trustee shall
have the right at any time to seek instructions concerning the
administration of this Guarantee Agreement from any court of competent
jurisdiction.
(v) The Guarantee Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Guarantee Agreement at the
request or direction of any Holder, unless such Holder shall have provided
to the Guarantee Trustee such security and indemnity reasonably
satisfactory to it, against the costs, expenses (including attorneys' fees
and expenses) and liabilities that might be incurred by it in complying
with such request or direction, including such reasonable advances as may
be requested by the Guarantee Trustee; provided that nothing contained in
this Section 3.02(a)(v) shall be taken to relieve the Guarantee Trustee,
upon the occurrence of an Event of Default, of its obligation to exercise
the rights and powers vested in it by this Guarantee Agreement.
(vi) The Guarantee Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Guarantee Trustee, in its
discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit and, if the Trustee shall determine to make
such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Guarantor, personally or by agent or
attor-
9
ney at the sole cost of the Guarantor and shall incur no liability or
additional liability of any kind by reason of such inquiry or
investigation.
(vii) The Guarantee Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
its agents or attorneys, and the Guarantee Trustee shall not be responsible
for any misconduct or negligence on the part of any such agent or attorney
appointed with due care by it hereunder.
(viii) Whenever in the administration of this Guarantee Agreement the
Guarantee Trustee shall deem it desirable to receive instructions with
respect to enforcing any remedy or right or taking any other action
hereunder, the Guarantee Trustee (A) may request instructions from the
Holders, (B) may refrain from enforcing such remedy or right or taking such
other action until such instructions are received and (C) shall be fully
protected in acting in accordance with such instructions.
(b) No provision of this Guarantee Agreement shall be deemed to impose any
duty or obligation on the Guarantee Trustee to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed on it in any
jurisdiction in which it shall be illegal, or in which the Guarantee Trustee
shall be unqualified or incompetent in accordance with applicable law, to
perform any such act or acts or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Guarantee Trustee
shall be construed to be a duty to act in accordance with such power and
authority.
Section 3.03. Indemnity. The Guarantor agrees to indemnify each of the
Guarantee Trustee, any predecessor Guarantee Trustee and its directors,
officers, agents and employees for, and to hold them harmless against, any and
all loss, damage, claim, liability or expense (including taxes other than taxes
based upon the income of the Guarantee Trustee) incurred without negligence or
bad faith on the part of the Guarantee Trustee, arising out of or in connection
with the acceptance or administration of this Guarantee Agreement, including the
costs and reasonable expenses of defending itself against any claim or liability
in connection with the exercise or performance of any of its powers or duties
hereunder. The Guarantee Trustee will not claim or exact any lien or charge on
any Guarantee Payments as a result of any amount due to it under this Guarantee
Agreement. This indemnity shall survive the termination of this Guarantee
Agreement or the resignation or removal of the Guarantee Trustee.
Section 3.04. Expenses. The Guarantor shall from time to time reimburse the
Guarantee Trustee for its reasonable expenses and costs incurred in connection
with the performance of its duties hereunder. This reimbursement obligation
shall survive the termination of this Guarantee Agreement or the resignation or
removal of the Guarantee Trustee.
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ARTICLE IV
GUARANTEE TRUSTEE
Section 4.01. Guarantee Trustee; Eligibility. (a) There shall at all times
be a Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a Person that is eligible pursuant to the Trust Indenture Act
to act as such and has a combined capital and surplus of at least
$50,000,000, and shall be a corporation meeting the requirements of Section
310(c) of the Trust Indenture Act. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of the
supervising or examining authority, then, for the purposes of this Section
and to the extent permitted by the Trust Indenture Act, the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published.
(b) If at any time the Guarantee Trustee shall cease to be eligible to so
act under Section 4.10(a), the Guarantee Trustee shall immediately resign in the
manner and with the effect set out in Section 4.02(c).
(c) If the Guarantee Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture Act, the
Guarantee Trustee and Guarantor shall in all respects comply with the provisions
of Section 310(b) of the Trust Indenture Act.
Section 4.02. Appointment, Removal and Resignation of the Guarantee
Trustee. (a) Subject to Section 4.02(b), in the absence of the existence of an
Event of Default, the Guarantee Trustee may be appointed or removed without
cause at any time by the Guarantor.
(b) The Guarantee Trustee shall not be removed until a Successor Guarantee
Trustee has been appointed and has accepted such appointment by written
instrument executed by such Successor Guarantee Trustee and delivered to the
Guarantor.
(c) The Guarantee Trustee appointed hereunder shall hold office until a
Successor Guarantee Trustee shall have been appointed or until its removal or
resignation. The Guarantee Trustee may resign from office (without need for
prior or subsequent accounting) by an instrument in writing executed by the
Guarantee Trustee and delivered to the Guarantor, which resignation shall not
take effect until a Successor Guarantee Trustee has been appointed and has
accepted such appointment by instrument in writing executed by such Successor
Guarantee Trustee and delivered to the Guarantor and the resigning Guarantee
Trustee.
(d) If no Successor Guarantee Trustee shall have been appointed and
accepted appointment as provided in this Section 4.02 within 30 days after
delivery to the Guarantor of an instrument of resignation, the resigning
Guarantee Trustee may petition, at the expense of the Guarantor, any court of
competent jurisdiction for appointment of a Successor Guarantee Trus-
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tee. Such court may thereupon, after prescribing such notice, if any, as it may
deem proper, appoint a Successor Guarantee Trustee.
ARTICLE V
GUARANTEE
Section 5.01. Guarantee. The Guarantor irrevocably and unconditionally
agrees (i) to pay in full on a subordinated basis to the Holders the Guarantee
Payments (without duplication of amounts theretofore paid by or on behalf of the
Issuer), as and when due, regardless of any defense, right of set-off or
counterclaim which the Issuer may have or assert other than the defense of
payment and (ii) to otherwise pay or perform on a subordinated basis all
obligations of Coltec Industries under the Coltec Guarantee Agreement, the
Indenture, the Convertible Junior Subordinated Debentures, and the Declaration,
to the extent not paid or performed by Coltec Industries. The Guarantor's
obligation to make a Guarantee Payment may be satisfied by direct payment of the
required amounts by the Guarantor to the Holders or by causing the Issuer to pay
such amounts to the Holders. The Guarantor shall give written notice to the
Guarantee Trustee as promptly as practicable in the event it makes any direct
payment hereunder.
Section 5.02. Waiver of Notice and Demand. The Guarantor hereby waives
notice of acceptance of the Guarantee Agreement and, with respect to its
obligations under Section 5.01, hereby waives presentment, demand for payment,
any right to require a proceeding first against the Guarantee Trustee, Issuer or
any other Person before proceeding against the Guarantor, protest, notice of
nonpayment, notice of dishonor, notice of redemption and all other notices and
demands.
Section 5.03. Obligations Not Affected. The obligations, covenants,
agreements and duties of the Guarantor under this Guarantee Agreement shall in
no way be affected or impaired by reason of the happening from time to time of
any of the following:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Issuer of any express or implied
agreement, covenant, term or condition relating to the Trust Securities to
be performed or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all or any
portion of the Distributions (other than any extension of time for payment
of Distributions that results from the extension of any interest payment
period on the Convertible Junior Subordinated Debentures as so provided in
the Indenture), Redemption Price, Liquidation Distribution or any other
sums payable under the terms of the Trust Securities or the extension of
time for the performance of any other obligation under, arising out of, or
in connection with, the Trust Securities;
(c) any failure, omission, delay or lack of diligence on the part of
the Holders to enforce, assert or exercise any right, privilege, power or
remedy conferred on the Holders pursuant to the terms of the Trust
Securities, or any action on the part of the Issuer granting indulgence or
extension of any kind;
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(d) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition or
readjustment of debt of, or other similar proceedings affecting, the Issuer
or any of the assets of the Issuer;
(e) any invalidity of, or defect or deficiency in, the Trust
Securities;
(f) the settlement or compromise of any obligation guaranteed hereby
or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise constitute
a legal or equitable discharge or defense of a guarantor, it being the
intent of this Section 5.03 that the obligations of the Guarantor hereunder
shall be absolute and unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to, or obtain
the consent of, the Guarantor with respect to the happening of any of the
foregoing.
Section 5.04. Rights of Holders. The Guarantor expressly acknowledges that:
(i) this Guarantee Agreement will be deposited with the Guarantee Trustee to be
held for the benefit of the Holders; (ii) the Guarantee Trustee has the right to
enforce this Guarantee Agreement on behalf of the Holders; (iii) the Holders of
a Majority in aggregate liquidation amount of the Trust Securities have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Guarantee Trustee in respect of this Guarantee Agreement
or exercising any trust or power conferred upon the Guarantee Trustee under this
Guarantee Agreement; and (iv) any Holder may institute a legal proceeding
directly against the Guarantor to enforce its rights under this Guarantee
Agreement, without first instituting a legal proceeding against the Issuer or
any other Person.
Section 5.05. Guarantee of Payment. This Guarantee Agreement creates a
guarantee of payment and not of collection. If the Issuer fails to make payments
as required, any Holder may immediately bring suit directly against the
Guarantor for payment of all amounts due and payable under this Guarantee
Agreement. This Guarantee Agreement will apply only to the extent that the
Issuer has funds sufficient to make such payments. If Coltec Industries does not
make interest payments on the Convertible Junior Subordinated Debentures held by
the Issuer, the Issuer will not be able to pay Distributions on the Trust
Securities and will not have funds legally available therefor. This Guarantee
Agreement will not be discharged except by payment of the Guarantee Payments in
full (without duplication of amounts theretofore paid by the Issuer) or upon
distribution of Convertible Junior Subordinated Debentures to Holders as
provided in the Declaration.
Section 5.06. Subrogation. The Guarantor shall be subrogated to all (if
any) rights of the Holders against the Issuer in respect of any amounts paid to
the Holders by the Guarantor under this Guarantee Agreement and shall have the
right to waive payment by the Issuer pursuant to Section 5.01; provided,
however, that the Guarantor shall not (except to the extent required by
mandatory provisions of law) be entitled to enforce or exercise any rights which
it may acquire by way of subrogation or any indemnity, reimbursement or other
agreement, in all
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cases as a result of payment under this Guarantee Agreement, if at the time of
any such payment, any amounts are due and unpaid under this Guarantee Agreement.
If any amount shall be paid to the Guarantor in violation of the preceding
sentence, the Guarantor agrees to hold such amount in trust for the Holders and
to pay over such amount to the Holders. Any amounts paid over to and not
subsequently recovered from the Holders pursuant to any insolvency law shall be
deemed to have been applied by the Holders to the Guarantee Payments.
Section 5.07. Independent Obligations. The Guarantor acknowledges that its
obligations hereunder are independent of the obligations of the Issuer with
respect to the Trust Securities and that the Guarantor shall (without
duplication of amounts paid by or on behalf of the Issuer) be liable as
principal and as debtor hereunder to make Guarantee Payments pursuant to the
terms of this Guarantee Agreement notwithstanding the occurrence of any event
referred to in subsections (a) through (g), inclusive, of Section 5.03 hereof.
ARTICLE VI
COVENANTS AND SUBORDINATION
Section 6.01. Subordination. This Guarantee Agreement will constitute an
unsecured obligation of the Guarantor and will rank subordinate and junior in
right of payment to all Senior Debt of the Guarantor.
Section 6.02. Pari Passu Guarantees. The obligations under this Guarantee
Agreement shall rank pari passu with the obligations of the Guarantor relating
to the BFG QUIPS(SM) and any similar guarantee agreements issued by the
Guarantor on behalf of the holders of securities issued by a trust or similar
entity created by the Guarantor and similar to Coltec Capital Trust, which
securities have substantially equivalent terms to those of the Trust Securities.
ARTICLE VII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 7.01. Guarantor May Consolidate, etc., Only on Certain Terms. The
Guarantor shall not consolidate with or merge with or into any other Person or
sell or lease its assets as, or substantially as, an entirety to any Person,
unless:
(a) the Person formed by such consolidation or into which the
Guarantor is merged or the Person which acquires by sale or lease, the
assets of the Guarantor as, or substantially as, an entirety, shall be a
corporation, partnership or trust, shall be organized under the laws of the
United States of America, any State thereof or the District of Columbia and
(if other than the Company) such successor Person shall expressly assume
the performance or observance of every covenant of this Guarantee on the
part of the Guarantor to be performed or observed;
(b) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time or both, would
become an Event of Default, shall have happened and be continuing; and
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(c) the Guarantor has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, sale or lease comply with this Article and that all
conditions precedent herein provided for relating to such transaction have
been complied with.
ARTICLE VIII
TERMINATION
Section 8.01. Termination. This Guarantee Agreement shall terminate and be
of no further force and effect upon (i) full payment of the Redemption Price of
all Trust Securities, (ii) the distribution of Convertible Junior Subordinated
Debentures to the Holders in exchange for all of the Trust Securities or (iii)
full payment of the amounts payable in accordance with the Declaration upon
liquidation of the Issuer. Notwithstanding the foregoing, this Guarantee
Agreement will continue to be effective or will be reinstated, as the case may
be, if at any time any Holder must repay any sums paid with respect to Trust
Securities or this Guarantee Agreement.
ARTICLE IX
MISCELLANEOUS
Section 9.01. Successors and Assigns. All guarantees and agreements
contained in this Guarantee Agreement shall bind the successors, assigns,
receivers, trustees and representatives of the Guarantor and shall inure to the
benefit of the Holders of the Trust Securities then outstanding. Except in
connection with a consolidation, merger or sale involving the Guarantor that is
permitted under Article VIII of the Indenture and pursuant to which the assignee
agrees in writing to perform the Guarantor's obligations hereunder, the
Guarantor shall not assign its obligations hereunder.
Section 9.02. Amendments. Except with respect to any changes which do not
materially adversely affect the rights of the Holders of Convertible Preferred
Securities (in which case no consent of the Holders will be required), this
Guarantee Agreement may only be amended with the prior approval of the Holders
of not less than a Majority of the aggregate liquidation amount of the
outstanding Convertible Preferred Securities. The provisions of Article VI of
the Declaration concerning meetings of the Holders shall apply to the giving of
such approval.
Section 9.03. Notices. Any notice, request or other communication required
or permitted to be given hereunder shall be in writing, duly signed by the party
giving such notice, and delivered, telecopied (confirmed by delivery of the
original) or mailed by first class mail as follows:
(a) if given to the Guarantor, to the address set forth below or such
other address, facsimile number or to the attention of such other Person as
the Guarantor may give notice to the Holders:
EnPro Industries, Inc.
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____ Xxxxxxxx Xxxxxxxxx, Xxxxx ___
Xxxxxxxxx, Xxxxx Xxxxxxxx _____
Fax: (704) ___-____
Attention: General Counsel
with a copy to:
Xxxxxxxx, Xxxxxxxx & Xxxxxx P.A.
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Fax: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx, Esq.
(b) if given to the Issuer, in care of the Guarantee Trustee, at the
Issuer's (and the Guarantee Trustee's) address set forth below or such
other address as the Guarantee Trustee on behalf of the Issuer may, at the
Issuer's direction, give notice to the Holders:
Coltec Capital Trust
____ Xxxxxxxx Xxxxxxxxx, Xxxxx ___
Xxxxxxxxx, Xxxxx Xxxxxxxx _____
Fax: (704) ___-____
Attention: General Counsel
with copies to:
Xxxxxxxx, Xxxxxxxx & Xxxxxx P.A.
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Fax: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx, Esq.
and
The Bank of New York
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile No.:
Attention: Corporate Trust Administration
(c) if given to the Guarantee Trustee:
00
Xxx Xxxx xx Xxx Xxxx
000 Xxxxxxx Xxxxxx, Xxxxx 00 Xxxx
Xxx Xxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: Corporate Trust Administration
(d) if given to any Holder, at the address set forth on the books and
records of the Issuer.
All notices hereunder shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid, except that if a notice or other document is refused delivery
or cannot be delivered because of a changed address of which no notice was
given, such notice or other document shall be deemed to have been delivered on
the date of such refusal or inability to deliver.
Section 9.04. Benefit. This Guarantee Agreement is solely for the benefit
of the Holders and is not separately transferable from the Convertible Preferred
Securities.
Section 9.05. Interpretation. In this Guarantee Agreement, unless the
context otherwise requires:
(a) capitalized terms used in this Guarantee Agreement but not defined
in the preamble hereto have the respective meanings assigned to them in
Section 1.01;
(b) a term defined anywhere in this Guarantee Agreement has the same
meaning throughout;
(c) all references to "the Guarantee Agreement" or "this Guarantee
Agreement" are to this Guarantee Agreement as modified, supplemented or
amended from time to time;
(d) all references in this Guarantee Agreement to Articles and
Sections are to Articles and Sections of this Guarantee Agreement unless
otherwise specified;
(e) a term defined in the Trust Indenture Act has the same meaning
when used in this Guarantee Agreement unless otherwise defined in this
Guarantee Agreement or unless the context otherwise requires;
(f) a reference to the singular includes the plural and vice versa;
and
(g) the masculine, feminine or neuter genders used herein shall
include the masculine, feminine and neuter genders.
Section 9.06. GOVERNING LAW. THIS GUARANTEE AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO THE CONFLICT OF LAW PRINCIPLES THEREOF.
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This instrument 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.
This GUARANTEE AGREEMENT is executed as of the day and year first above
written.
ENPRO INDUSTRIES, INC.
By:
-----------------------------------------
Name:
Title:
THE BANK OF NEW YORK,
AS GUARANTEE TRUSTEE
By:
----------------------------------------
Name:
Title:
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