[CONFORMED COPY]
EIGHTH WAIVER
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EIGHTH WAIVER (the "Waiver"), dated as of December 23, 1993, among
COLTEC INDUSTRIES INC (the "Company") and the financial institutions party to
the Credit Agreement referred to below (the "Banks"). All capitalized terms
used herein and not otherwise defined shall have the respective meanings
provided such terms in the Credit Agreement.
W I T N E S S E T H :
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WHEREAS, the Company, the Banks, Bankers Trust Company, Chemical Bank
(as successor by merger with Manufacturers Hanover Trust Company), Barclays Bank
PLC, New York Branch, and Credit Lyonnais New York Branch, as Agents, and
Bankers Trust Company, as Administrative Agent, are parties to a Credit
Agreement, dated as of March 24, 1992, as amended to the date hereof (as so
amended, the "Credit Agreement"); and
WHEREAS, the parties hereto wish to waive certain provisions of the
Credit Agreement as herein provided;
NOW, THEREFORE, it is agreed:
1. Notwithstanding anything to the contrary contained in Section 9.02
or any other provision of the Credit Agreement or any other Credit Document,
CFPI Inc., a Delaware corporation and a direct Wholly-Owned Subsidiary of CII
Holdings Inc. ("CFPI"), and CPFM Inc., a Delaware corporation and a direct
Wholly-Owned Subsidiary of CFPI ("CPFM"), each an indirect Wholly-Owned
Subsidiary of the Company, shall each be permitted to merge with and into the
Company (the "Merger") provided that (i) the Company shall be the surviving
corporation and shall be named "Coltec Industries Inc.", (ii) the Merger shall
be consummated on or prior to January 10, 1994 and (iii) prior to the Merger,
the Administrative Agent and the Banks shall have received a certificate signed
by the president or any vice president of the Company certifying copies of the
Certificate of Merger and the Agreement of Merger providing for such Merger and
any other documents relating to the consummation of such Merger (collectively,
the "Merger Documents"), and such Merger Documents shall comply with Section
9.13 of the Credit
Agreement and be satisfactory in form and substance to the Administrative Agent.
2. The Banks hereby acknowledge that upon the consummation of the
Merger in accordance with this Waiver, the Collateral Agent may release from
pledge under the Subsidiaries Pledge Agreement the stock certificates repre-
senting all of the issued and outstanding shares of capital stock of CFPI and
CPFM, respectively.
3. Notwithstanding anything to the contrary contained in Section
9.13(iii) of the Credit Agreement or any other provision of the Credit Agreement
or any other Credit Document, Coltec Holdings Inc. shall be permitted to amend
its Certificate of Incorporation to reduce the number of shares of authorized
common stock from 80,000 shares to 10,000 shares and to eliminate all of its
authorized preferred stock, presently consisting of 2,000,000 shares.
4. Notwithstanding anything to the contrary contained in Section
9.17 of the Credit Agreement or any other provision of the Credit Agreement or
any other Credit Document, the Company shall be permitted to create a new
subsidiary in Barbados ("Newco") in order to effect the Foreign Merger (as
defined below), provided that the Administrative Agent and the Banks shall have
received a certificate signed by the president or any vice president of the
Company certifying copies of any relevant corporate organizational documents
prepared in connection with the incorporation of Newco (collectively, the "Newco
Documents"), and such Newco Documents shall be satisfactory in form and
substance to the Administrative Agent.
5. Notwithstanding anything to the contrary contained in Section
9.02 or any other provision of the Credit Agreement or any other Credit
Document, Coltec International Inc. shall be permitted to merge with and into
Newco (the "Foreign Merger") provided that (i) the Foreign Merger shall be
consummated on or prior to January 10, 1994 and (ii) at the time of the Foreign
Merger, the Administrative Agent and the Banks shall have received a certificate
signed by the President or any Vice President of the Company certifying copies
of the Certificate of Merger providing for such Foreign Merger and any other
documents relating to the consummation of such Foreign Merger (collectively, the
"Foreign Merger Documents") and such Foreign Merger Documents shall comply with
Section 9.13 of the Credit Agreement and be
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satisfactory in form and substance to the Administrative Agent.
6. The Banks hereby acknowledge that upon the consummation of the
Foreign Merger in accordance with this Waiver, and the pledge of 66% of the
issued and outstanding shares of capital stock of Newco, the Collateral Agent
may release from pledge under the Company Pledge Agreement the stock
certificates representing 66% of the issued and outstanding shares of capital
stock of Coltec International, Inc.
7. In order to induce the Banks to enter into this Waiver, the
Company hereby (i) makes each of the representations, warranties and agreements
contained in Section 7 of the Credit Agreement and (ii) represents and warrants
that there exists no Default or Event of Default, in each case on the Waiver
Effective Date (as defined herein) both before and after giving effect to this
Waiver.
8. 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.
9. 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. A complete set of
counterparts shall be lodged with the Company and the Administrative Agent.
10. 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.
11. This Waiver shall become effective on the date (the "Waiver
Effective Date") when the Company and the Required Banks shall have signed a
copy hereof (whether the same or different copies) and shall have delivered
(including by way of facsimile) the same to the Administrative Agent at the
Notice Office.
12. From and after the effective date of this Waiver as set forth in
Section 7 hereof, all references in the Credit Agreement and the other Credit
Documents to the Credit Agreement shall be deemed to be references to such
Credit Agreement as modified hereby.
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IN WITNESSES WHEREOF, each of the parties hereto has caused a
counterpart of this Waiver to be duly executed and delivered as of the date
first above written.
COLTEC INDUSTRIES INC
By Paul Schoen
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Title: Executive Vice
President & Treasurer
BANKERS TRUST COMPANY,
Individually, as Agent, as
Mortgagee and as
Administrative Agent
By Mary Kay Coyle
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Title: Vice President
CHEMICAL BANK
(as successor by merger with
Manufacturers Hanover Trust
Company), Individually, and
as Agent
By William M. Lane
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Title: Managing Director
BARCLAYS BANK PLC, NEW YORK
BRANCH, Individually, and
as Agent
By John Giammone
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Title: Director
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CREDIT LYONNAIS NEW YORK
BRANCH, Individually, and
as Agent
By Mark Campellone
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Title: Vice President
CREDIT LYONNAIS CAYMAN ISLAND
BRANCH
By Mark Campellone
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Title: Authorized Signature
Vice President
THE BANK OF MONTREAL
By Glen A. Pole
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Title: Director
THE BANK OF NEW YORK
By William A. Kerr
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Title: Vice President
THE BANK OF TOKYO TRUST
COMPANY
By
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Title:
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BANQUE FRANCAISE DU COMMERCE
EXTERIEUR
By David Kopp
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Title: Vice President
BANQUE PARIBAS
By
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Title:
By
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Title:
THE CHASE MANHATTAN BANK, N.A.
By George Hansen
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Title: Vice President
COMMONWEALTH BANK OF AUSTRALIA
By Peter F. Ewers
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Title: First Vice President
EATON VANCE PRIME RATE
RESERVES
By Barbara Campbell
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Title: Assistant Treasurer
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THE FUJI BANK, LIMITED,
New York Branch
By
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Title:
GIROCREDIT BANK, New York
Branch
By
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Title:
THE INDUSTRIAL BANK OF JAPAN,
LIMITED, New York Branch
By Tsuneki Hara
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Title: Joint General Manager
THE LONG-TERM CREDIT BANK
OF JAPAN, LIMITED, NEW
YORK BRANCH
By Mitsuo Matsunaga
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Title: Vice President
THE MITSUBISHI TRUST AND
BANKING CORPORATION
By Patricia Loret de Mola
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Title: Senior Vice President
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THE NIPPON CREDIT BANK, LTD.,
New York Branch
By Ronald A. Fisher
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Title: Vice President
UNION BANK OF FINLAND LIMITED,
Grand Cayman Branch
By Durval Araujo
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Title: Vice President
By James Kyprios
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Title: Senior Vice President
VAN KAMPEN MERRITT PRIME
RATE INCOME TRUST
By
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Title:
ARAB BANKING CORP.
By Louise Bilbro
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Title: Vice President
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BAHRAIN MIDDLE EAST BANK E.C.
New York Agency
By Matthews Kuruvilla
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Title: General Manager/
Senior Vice President
By Audrey Brown
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Title: AVP
BANK OF IRELAND
By Randolph Ross
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Title: Vice President
THE BANK OF NOVA SCOTIA
By Stephen Lockhart
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Title: Vice President
BANK OF SCOTLAND
By
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Title:
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MERRILL LYNCH PRIME FUND INC.
By John R. Lennon
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Title: Authorized Signatory
MERRILL LYNCH PRIME RATE PORTFOLIO
BY MERRILL LYNCH INVESTMENT
MANAGEMENT, INC., as investment
advisor
By
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Title:
RESTRUCTURED OBLIGATION BACKED
BY SENIOR ASSETS B.V.
By
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Title:
RYOSHIN LEASING (USA) INC.
By
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Title:
STICHTING RESTRUCTURED
OBLIGATIONS BACKED BY SENIOR
ASSETS 2 (ROSA2)
(Chancellor)
By
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Title:
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TOKYO CITY FINANCE (ASIA)
LIMITED
By
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Title:
TOKYO TRUST AND BANKING
COMPANY, LTD. New York Branch
By
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Title:
TRAVELERS INSURANCE COMPANY
By
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Title:
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