Exhibit 4.3(i)
WAIVER
Reference is hereby made to the Credit Agreement, dated as of March 24,
1992, amended and restated as of January 11, 1994 and further amended and
restated as of December 18, 1996 (as amended, modified or supplemented to the
date hereof, the "Credit Agreement"), among Coltec Industries Inc, a corporation
organized and existing under the laws of the Commonwealth of Pennsylvania (the
"Company"), Coltec Aerospace Canada Ltd., an Ontario corporation (the "Canadian
Borrower"), the various Subsidiaries of the Company that are Credit Parties on
the date of this Waiver, the various Banks party thereto, Bank of America
National Trust and Savings Association (as successor by merger to Bank of
America Illinois), as Documentation Agent, The Chase Manhattan Bank, as
Syndication Agent, Bankers Trust Company, as Administrative Agent, and Bank of
Montreal, as Canadian Paying Agent. All capitalized terms used herein and not
otherwise defined shall have the respective meanings provided such terms in the
Credit Agreement.
The Company has informed the Banks that it has entered, or intends to
enter, into an agreement (the "Merger Agreement") pursuant to which a certain
entity (the "Acquiror"), through a newly-formed wholly-owned subsidiary of the
Acquiror ("Merger Sub"), would acquire (the "Acquisition"), 100% of the equity
of the Company by means of the merger of Merger Sub with and into the Company,
with the Company being the surviving corporation of such merger. The Company has
determined that it is in the best interests of the Company to enter into the
Merger Agreement and to consummate the Acquisition (pursuant to the terms and
subject to the conditions set forth in the Merger Agreement). The Company has
also informed the Banks that, in connection with the entering into of the Merger
Agreement, the Company and the Acquiror have entered, or intend to enter, into a
stock option agreement pursuant to which the Acquiror will grant the Company an
option with respect to certain shares of the Acquiror's common stock (the
"Acquiror Stock Option Agreement") and a stock option agreement pursuant to
which the Company will grant the Acquiror an option with respect to certain
shares of the Company's common stock (the "Company Stock Option Agreement" and,
collectively with the Acquiror Stock Option Agreement, the "Cross Stock Option
Agreements").
In consideration of the making by the Company and the Canadian Borrower
of the representations and warranties, and the payment by the Company to the
Banks of the consent fee set forth in the second succeeding paragraph, the Banks
hereby waive (subject to the provisions of the immediately succeeding paragraph)
any Default or Event of Default which may exist pursuant to the Credit Agreement
as a result of the Company's entering into the Merger Agreement and the Cross
Stock Option Agreements or, subject to the provisions of the immediately
succeeding paragraph, the performance by the Company of its obligations, or the
exercise of its rights, under or in connection with the Merger Agreement (other
than the consummation of the Acquisition thereunder) and the Cross Stock Option
Agreements so long as (i) the Merger Agreement and the Cross Stock Option
Agreements together expressly provide that the liabilities of the Company and
its Subsidiaries in the event the Merger Agreement is terminated in accordance
with its terms (including, without limitation, in respect of the payment by the
Company to the Acquiror of (x) any breakup fee under the Merger Agreement and/or
(y) any cash payment in respect of the option held by the Acquiror under the
Company Stock Option Agreement) or the Acquisition is not consummated shall in
no event exceed $95,000,000 and (ii) the Merger Agreement does not contemplate
the assumption by the Company or any of its Subsidiaries of any liabilities of,
or relating to, the Acquiror or any of its Subsidiaries other than as may occur
in connection with, and upon consummation of, the Acquisition.
It is expressly understood and agreed that this Waiver shall not apply
to permit (or to waive any Default or Event of Default resulting from) any
Change of Control arising as a result of any purchases pursuant to the Cross
Stock Option Agreements. Furthermore, it is expressly understood and agreed that
this Waiver shall not apply to permit the consummation of the Acquisition (or
any Change of Control resulting therefrom) and that neither the Company nor any
of its Subsidiaries shall be permitted to consummate the Acquisition unless
either (x) concurrently therewith or prior thereto, all Commitments and Letters
of Credit pursuant to the Credit Agreement are terminated and all amounts owing
pursuant to the Credit Agreement are repaid in full or (y) the Company has
obtained the prior written consent of the Required Banks (which consent may be
granted or withheld in the sole discretion of the Banks,
or subject to such terms or conditions as may be imposed by the Banks) adopted
in accordance with the requirements of the Credit Agreement.
In order to induce the Banks to enter into this Waiver, (i) the Company
and the Canadian Borrower hereby represent and warrant that (x) all
representations and warranties contained in Section 7 of the Credit Agreement
are true and correct in all material respects on and as of the Waiver Effective
Date (as defined below) and after giving effect to this Waiver (unless such
representations and warranties relate to a specific earlier date, in which case
such representations and warranties shall be true and correct as of such earlier
date) and (y) there exists no Default or Event of Default on the Waiver
Effective Date after giving effect to this Waiver and (ii) the Company hereby
agrees to pay to the Administrative Agent for the account of each Bank which
executes and delivers (including, without limitation, by usage of facsimile
transmission) to the Administrative Agent a counterpart of this Waiver on or
prior to 11:59 P.M. (New York time) on November 20, 1998 a non-refundable
consent fee in the amount equal to 0.05% of the Commitment of such Bank (as same
is in effect on the Waiver Effective Date), which fee shall be payable on the
first Business Day after the Waiver Effective Date, provided, however, that such
fee shall not be payable if the Waiver Effective Date does not occur. Payment of
the fee described in clause (ii) of the immediately preceding sentence shall not
be subject to counterclaim or set-off for, or be otherwise affected by, any
claim or dispute relating to any other matter.
This Waiver is limited as specified and shall not constitute a
modification, acceptance or waiver of any other provision of the Credit
Agreement or any other Credit Document. This Waiver may be executed in any
number of counterparts and by the different parties hereto on separate
counterparts, each of which counterparts when executed and delivered shall be an
original, but all of which shall together constitute one and the same
instrument. This Waiver shall become effective on the date (the "Waiver
Effective Date") when each Credit Party (including, without limitation, the
Company, the Canadian Borrower and each Subsidiary Guarantor) and the Required
Banks shall have signed a counterpart hereof (whether the same or different
counterparts) and shall have delivered (including, without limitation, by usage
of facsimile transmission) the same to the Administrative Agent at its Notice
Office. This Waiver and the agreements contained herein shall be binding on the
successors and assigns of the parties hereto.
THIS WAIVER AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF
NEW YORK.
* * *
2
IN WITNESS WHEREOF, the parties hereto have caused a counterpart of
this Waiver to be duly executed and delivered as of the 20th day of November,
1998.
COLTEC INDUSTRIES INC
By /s/ Thomas B. Jones, Jr.
-----------------------------------
Title: Vice President and Treasurer
COLTEC AEROSPACE CANADA LTD.
By /s/ Thomas B. Jones, Jr.
----------------------------------
Title: Vice President and Treasurer
BANKERS TRUST COMPANY,
Individually and as
Administrative Agent
By /s/ Patricia Hogan
-------------------------
Title: Principal
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
Individually and as
Documentation Agent
By /s/ Robert Parkhurst
----------------------------
Title: Sr. Vice President
THE CHASE MANHATTAN BANK,
Individually and as
Syndication Agent
By _____________________________
Title:
BANK OF MONTREAL,
Individually and as Canadian
Paying Agent and Canadian
Documentation Agent
By /s/ Bruce A. Pietra
------------------------------
Title: Director
ALLIED IRISH BANK, PLC,
CAYMAN ISLANDS BRANCH
By____________________________
Title:
BANK OF IRELAND
By_____________________________
Title:
BANK COMMERCIALE ITALIANA
NEW YORK BRANCH
By_____________________________
Title:
By_____________________________
Title:
BANK LEUMI TRUST COMPANY
OF NEW YORK
By______________________________
Title:
THE BANK OF NEW YORK
By /s/ Ann Marie Hughes
--------------------------
Title: Vice President
BANK OF SCOTLAND
By /s/ Annie Chin Tat
-----------------------------
Title: Senior Vice President
BANK OF TOKYO-MITSUBISHI TRUST COMPANY
By __________________________
Title:
NATEXIS BANQUE BFCE, formerly
BANQUE FRANCAISE DU COMMERCE
EXTERIEUR
By___________________________
Title:
By___________________________
Title:
CIBC INC.
By /s/ Ihor Zaluckyj
-----------------------------
Title: Executive Director
CIBC Oppenheimer Corp.
AS AGENT
ROYAL BANK OF CANADA
By________________________________
Title:
COMMERCIAL LOAN FUNDING TRUST I
By Lehman Commercial Paper
Inc., not in its
individual capacity but
solely as administrative
agent.
By______________________________
Title:
MELLON BANK CANADA
By /s/ Ed McGrath
--------------------------
Title: Vice President
CREDIT LYONNAIS ATLANTA AGENCY
By /s/ David M. Cawrse
---------------------------
Title: First Vice President
and Manager
CREDIT LYONNAIS NEW YORK
BRANCH
By________________________________
Title:
THE DAI-ICHI KANGYO BANK, LTD.
By________________________________
Title:
FIRST UNION NATIONAL BANK
(f/k/a First Union National
Bank of North Carolina)
By /s/ David Trotter
-------------------------
Title: Vice President
THE FUJI BANK, LIMITED,
ATLANTA AGENCY
By________________________________
Title:
ERSTE BANK DER
OESTERREICHISCHEN
SPARKASSEN AG (f/k/a
Girocredit Bank AG Der
Sparkassen, Grand Cayman
Island Branch)
By________________________________
Title:
By________________________________
Title:
THE INDUSTRIAL BANK OF JAPAN,
LIMITED
By________________________________
Title:
LEHMAN COMMERCIAL PAPER INC.
By________________________________
Title:
LLOYDS BANK PLC
By________________________________
Title:
By________________________________
Title:
MELLON BANK, N.A.
By /s/ John H. Gibney
-------------------------
Title: Vice President
NATIONSBANK, N.A.
By /s/ Robert Parkhurst
--------------------------
Title: Sr. Vice President
THE SAKURA BANK, LTD.
By________________________________
Title:
THE SANWA BANK, LIMITED
By________________________________
Title:
By________________________________
Title:
THE SUMITOMO BANK, LIMITED
By________________________________
Title:
THE TOKAI BANK, LIMITED
NEW YORK BRANCH
By________________________________
Title:
WACHOVIA BANK, N.A.
By /s/ Timothy R. Hileman
---------------------------------
Title: Senior Vice President
BT BANK OF CANADA
By /s/ Michael Pullella
--------------------------------
Title: Vice President and Chief
Financial Officer
By /s/ Brian S. Strauss
----------------------------
Title: Principal
BANK OF AMERICA CANADA
By /s/ Edwin B. Cox, Jr.
---------------------------------
Title: VP & Senior Credit Officer
THE CHASE MANHATTAN BANK OF
CANADA
By________________________________
Title:
CREDIT LYONNAIS CANADA
By /s/ D. J. Farmer
------------------
Title: FVP
By /s/ Robert Dyck
------------------------
Title: Manager, Corporate Banking
CANADIAN IMPERIAL BANK OF
COMMERCE
By________________________________
Title:
Acknowledged and Agreed:
AMI INDUSTRIES INC.
CII HOLDINGS INC
COLTEC CANADA INC
COLTEC INDUSTRIAL PRODUCTS INC
COLTEC INTERNATIONAL SERVICES CO
COLTEC NORTH CAROLINA INC.
COLTEC TECHNICAL SERVICES INC
DELAVAN INC (F/K/A DELAVAN NEWCO INC.)
GARLOCK INC
GARLOCK INTERNATIONAL INC
GARLOCK OVERSEAS CORPORATION
HABER TOOL COMPANY INC
JAMCO PRODUCTS, LLC
MENASCO AEROSYSTEMS INC
STEMCO INC
WALBAR INC
By /s/ Thomas B. Jones, Jr.
---------------------------------
Title: Vice President and Assistant Treasurer
On behalf of each of the above
Subsidiary Guarantors