Exhibit 4.7
COLTEC INDUSTRIES INC,
THE X.X.XXXXXXXX COMPANY,
AND
THE BANK OF NEW YORK,
as Trustee
FIRST SUPPLEMENTAL INDENTURE
Dated as of July 12, 1999
FIRST SUPPLEMENTAL INDENTURE, dated as of July 12,
1999, among Coltec Industries Inc, a Pennsylvania corporation
(the "Company"), The X.X.Xxxxxxxx Company, a New York
corporation ("BFGoodrich"), 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 OF THE COMPANY AND BFGOODRICH
WHEREAS, the Company and the Trustee are parties to an Indenture, dated
as of April 14, 1998 (the "Indenture"), relating to the Company's 5 1/4%
Convertible Junior Subordinated Deferrable Interest Debentures due 2028 (the
"Securities");
WHEREAS, on November 22, 1998, the Company, BFGoodrich, and a wholly
owned Pennsylvania subsidiary of BFGoodrich entered into an Agreement and Plan
of Merger (the "Merger Agreement"). Pursuant to the Merger Agreement,
BFGoodrich's subsidiary merged with and into the Company, with the Company being
the surviving corporation in the merger (the "Merger"), and each outstanding
share of common stock of the Company (other than shares held by the Company,
BFGoodrich or any of their direct or indirect subsidiaries) was converted into
the right to receive 0.56 of a fully paid and nonassessable share of common
stock, par value $5 per share, of BFGoodrich ("BFGoodrich Common Stock");
WHEREAS, BFGoodrich 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 First
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
CONVERSION RIGHTS OF HOLDERS
IN CONNECTION WITH THE MERGER
SECTION 1.1. CONVERSION RIGHTS. The Company, as the surviving
corporation of the Merger, and BFGoodrich hereby provide in accordance with
Section 13.04 of the Indenture that the Holder of each Security outstanding at
the effective time of the Merger 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 that number of shares of BFGoodrich Common Stock
equal to the product of 0.955248 and the number of Securities the Holder owns.
ARTICLE II
ADJUSTMENT OF CONVERSION RATE
Section 2.1. ADJUSTMENT. BFGoodrich hereby unconditionally agrees, 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
First 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 First
Supplemental Indenture shall form a part of the Indenture for all purposes, and
every Holder heretofore or hereafter authenticated and delivered under the
Indenture 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.
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SECTION 4.3. INCORPORATION OF INDENTURE. All the provisions of this
First Supplemental Indenture shall be deemed to be incorporated in, and made a
part of, the Indenture; and the Indenture, as supplemented and amended by this
First 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 First Supplemental Indenture are inserted for convenience of reference and
shall not be deemed to be a part thereof.
SECTION 4.5. COUNTERPARTS. This First Supplemental Indenture maybe
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 First Supplemental Indenture is in all respects
confirmed and preserved.
SECTION 4.7. CONFLICT WITH TRUST INDENTURE ACT. If any provision of
this First 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 First Supplemental Indenture,
the provision of the Trust Indenture Act shall control. If any provision of this
First 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 First Supplemental Indenture, as the case may be.
SECTION 4.8. SUCCESSORS. All covenants and agreements in this First
Supplemental Indenture by the Company and BFGoodrich shall be binding upon and
accrue to benefit of their respective successors. All covenants and agreements
in this First 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 First
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 FIRST SUPPLEMENTAL INDENTURE. Nothing in this
First 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 First 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 and BFGoodrich,
and
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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 First Supplemental Indenture.
SECTION 4.12. CERTAIN DUTIES AND RESPONSIBILITIES OF THE TRUSTEES. In
entering into this First 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.
SECTION 4.13. GOVERNING LAW. THIS FIRST 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.
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IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed, all as of the day and year first
above written.
COLTEC INDUSTRIES, INC
By: /s/ Xxxxxx X. Xxxxx, Xx.
--------------------------------------------
Name: Xxxxxx X. Xxxxx, Xx.
Title: Vice President and Treasurer
THE X.X.XXXXXXXX COMPANY
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President and Treasurer
THE BANK OF NEW YORK, as Trustee
By: /s/ Xxxx Xxxx Xxxxxxx
--------------------------------------
Name: Xxxx Xxxx Xxxxxxx
Title: Assistant Vice President
