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EXHIBIT 4.4
FIFTH AMENDMENT TO CREDIT AGREEMENT
FIFTH AMENDMENT TO CREDIT AGREEMENT (this "Amendment"), dated as of March 16,
1998, among COLTEC INDUSTRIES INC, a corporation organized and existing under
the laws of the State 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 Amendment, the
various Banks party to the Credit Agreement referred to below, 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.
W I T N E S S E T H :
WHEREAS, the Company, the Canadian Borrower, the Banks, the Documentation Agent,
the Syndication Agent and the Administrative Agent are parties to a 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");
WHEREAS, the parties hereto have agreed to amend the Credit Agreement as herein
provided;
NOW, THEREFORE, it is agreed:
Amendments to Credit Agreement.
Section 3.03 of the Credit Agreement is hereby amended by (1) deleting
in its entirety in clause (c) thereof and inserting in lieu thereof the
following new text:
"(c) [intentionally omitted]";
(2) inserting immediately after the phrase "is in effect on the
Restatement Effective Date" appearing in clause (d) thereof the phrase
", or of TIDES, New Senior Notes or New Senior Exchange Notes";
(3) inserting at the end of clause (d) the following new proviso:
"provided that notwithstanding the foregoing, on each date upon which
New Senior Notes or TIDES are issued, the Total Commitment shall be
reduced by an amount equal to 66-2/3% of the gross cash proceeds
received by the Company and its Subsidiaries (including the Trust,
without duplication) from the respective issuance"; and
(4) inserting in clause (e) thereof the following new clauses (ii)(D)
and (E), in appropriate order, in the second parenthetical appearing in
said clause (e):
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"and (D) the proceeds of the sale of 100% of the capital stock of, or
all or substantially all of the assets of, Holley Automotive pursuant
to Section 9.02(xxiii) and (E) the proceeds of the issuance of TIDES,
New Senior Notes or New Senior Exchange Notes, as the case may be".
Section 7.14 of the Credit Agreement is hereby amended by
adding the following phrase immediately at the end of the third
sentence thereof:
"and except that TIDES and TIDES Mirror Debentures shall be convertible
into common stock of the Company in accordance with the terms thereof
(and of the documentation relating thereto)".
Section 7.17 of the Credit Agreement is hereby amended by
inserting immediately following the phrase "any of its Subsidiaries"
therein the phrase "(other than the Trust)".
Section 7.23 of the Credit Agreement is hereby amended by
(x) deleting the word "and" immediately preceding clause (iv) thereof
and by inserting in lieu thereof a comma and (y) inserting the
following phrase at the end thereof:
"and (v) following the issuance of TIDES, the Trust may be subject to
restrictions as provided in the documentation relating to the TIDES and
the TIDES Mirror Debentures".
Section 8.04 of the Credit Agreement is hereby amended by
deleting the phrase "or (iii)" appearing therein and inserting in lieu
thereof the following phrase:
", (iii) the dissolution or liquidation of the Trust pursuant
to, or other compliance by the Trust with, the documentation relating
to the TIDES and the TIDES Mirror Debentures or (iv)".
Section 8.12 of the Credit Agreement is hereby amended by
adding the following new phrase immediately at the end thereof :
"and (z) the Trust so long as same would be a Wholly Owned
Subsidiary of the Company but for its issuance of TIDES which are then
outstanding".
Section 8.15 of the Credit Agreement is hereby amended by
adding the following new clause (i) immediately at the end thereof:
"(i) Notwithstanding anything to the contrary contained in
this Section 8.15, elsewhere in this Agreement or in any other Credit
Document, the Trust (so long as same issues TIDES within a reasonable
period of
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time after the establishment of the Trust) shall not be required to
become a Guarantor or to execute any Credit Documents, and the equity
interests in the Trust owned by the Company shall not be required to be
pledged pursuant to any Pledge Agreement."
Section 9.01 of the Credit Agreement is hereby
amended by (x) deleting the word "and" at the end of clause (xxii)
thereof, (y) deleting the period at the end of clause (xxiii) thereof
and inserting "; and" in lieu thereof and (z) inserting in appropriate
order the following new clause (xxiv):
"(xxiv) after the issuance of the New Senior Notes, Liens on
Collateral securing the New Senior Notes and, after the issuance
thereof, the New Senior Exchange Notes on an equal and ratable basis
with the obligations otherwise secured pursuant to the Security
Documents to the extent permitted by Section 9.04(xxi); provided that
such Liens may not continue in existence at any time, and for so long
as, the Liens on the respective items of Collateral have been released
pursuant to the Security Documents or as contemplated by Section 26 of
Part I of the Fifth Amendment to this Agreement."
Section 9.02 of the Credit Agreement is hereby
amended by (x) deleting the word "and" at the end of clause (xxi)
thereof, (y) deleting the period at the end of clause (xxii) thereof
and inserting a semi-colon in lieu thereof and (z) inserting in
appropriate order the following new clauses:
"(xxiii) so long as there shall exist no Default or Event of
Default (both before and after giving effect thereto), the Company
shall be permitted to sell 100% of the capital stock of, or all or
substantially all of the assets of, Holley Automotive, so long as (A)
such sale is for fair market value (as determined in good faith by the
Board of Directors of the Company), (B) the business and assets
of Holley Automotive shall not have materially changed from the
business and assets, respectively, of Holley Automotive on the Fifth
Amendment Effective Date and (C) such sale results in
consideration consisting at least 75% (for this purpose, taking the
amount of cash and the fair market value of all non-cash consideration,
as determined in good faith by the Company) of cash;
(xxiv) New Senior Notes and/or New Senior Exchange Notes may
be repurchased (so long as retired by the Company) in accordance with
the provisions of clause (iv) of Section 9.11; and
(xxv) the activities of the Trust and the Company in
connection with its issuance of TIDES, and any dissolution of the Trust
and distribution of TIDES Mirror Debentures, any conversions of TIDES
Mirror Debentures into common stock of the Company, repurchases or
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redemptions of TIDES by the Trust in accordance with the provisions of
Section 9.03 and corresponding repurchases or redemptions of TIDES
Mirror Debentures by the Company in each case as contemplated by the
documentation relating to the TIDES and the TIDES Mirror Debentures
shall be permitted without causing a violation of this Section 9.02."
Section 9.03 of the Credit Agreement is hereby
amended by (x) in clause (iii)(A) thereof, inserting the phrase
"and/or, after the issuance thereof, the Trust shall be permitted to
purchase TIDES (and in the case any outstanding TIDES are so purchased,
the Company shall, and shall be permitted to, repay, or the Trust shall
cancel, a like principal of amount of TIDES Mirror Debentures, with the
Trust using the proceeds thereof to repurchase the TIDES, which TIDES
so purchased shall be retired)" immediately after the phrase "shares of
Company Common Stock" appearing therein and (y) adding the following
new sentence immediately at the end thereof:
"Notwithstanding anything to the contrary contained in this
Section 9.03 or elsewhere in this Agreement, following the issuance of
TIDES in accordance with the provisions of Section 9.13(a)(viii), no
payments or distributions (except payments made to purchase TIDES
pursuant to clause (iii)(A) of the first sentence of this Section 9.03)
may be made with respect to the TIDES or the TIDES Mirror Debentures
except that (x) any TIDES and/or TIDES Mirror Debentures, as the case
may be, from time to time outstanding may, in accordance with the terms
of the relevant documentation therefor, be converted into common stock
of the Company, (y) cash interest may be paid on the TIDES Mirror
Debentures so long as the Trust in turn utilizes all cash interest
payments so received by it to pay accrued dividends (which shall be
permitted to be paid by the Trust with proceeds of such cash interest
payments received by it) owing with respect to TIDES then outstanding,
provided that (i) the cash interest payments made from time to
time to the Trust shall not exceed the amounts needed by it to make
dividend payments owing with respect to outstanding TIDES and costs and
expenses of the Trust in accordance with the indenture for the TIDES
Mirror Debentures, (ii) no such payments shall be made at any
time when the payment of cash interest on the TIDES Mirror Debentures
is not permitted to be made pursuant to the subordination provisions
applicable thereto and (iii) no such payments shall be made at any time
following the occurrence and during the continuance of any Default or
Event of Default or if a Default or Event of Default would exist
immediately after giving effect to such payment, and (z) to the limited
extent provided in the documentation relating to the TIDES, TIDES
Mirror Debentures may be issued by the Trust to the holders of the
TIDES in exchange therefor."
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Section 9.04 of the Credit Agreement is hereby
amended by (x) deleting the word "and" at the end of clause (xix)
thereof, (y) deleting the period at the end of clause (xx) thereof and
inserting a semicolon in lieu thereof and (z) inserting in appropriate
order the following new clauses (xxi) and (xxii):
"(xxi) Indebtedness of the Company evidenced by its senior
notes (the "New Senior Notes") and by its senior notes issued in a
registered exchange offer for the New Senior Notes (the "New Senior
Exchange Notes"), so long as (v) the New Senior Notes are issued at par
(subject to a de minimus discount not to exceed in any event 1%) and
the aggregate principal amount of New Senior Notes so issued does not
exceed $300,000,000, (w) the terms and conditions of the New Senior
Notes shall be consistent with the term sheet therefor delivered to the
Administrative Agent prior to the Fifth Amendment Effective Date and
otherwise in form and substance reasonably satisfactory to the Agents
and the Required Banks, (x) the aggregate principal amount of New
Senior Exchange Notes so issued shall not exceed the aggregate
principal amount of New Senior Notes surrendered in exchange for the
New Senior Exchange Notes so issued, (y) the terms and conditions of
the New Senior Exchange Notes shall be substantially identical (with
exceptions regarding registration requirements, the requirement to
conduct an exchange offer and other differences not adverse to the
Banks which are approved by the Administrative Agent) to the terms of
the New Senior Notes (except that the New Senior Exchange Notes shall
be registered under the Securities Act of 1933, as amended) and (z) all
documentation evidencing the New Senior Notes and the New Senior
Exchange Notes shall be satisfactory to each Agent and the Required
Banks; provided that the New Senior Notes and the New Senior Exchange
Notes shall be permitted to be (i) guaranteed by any Subsidiary of the
Company which is a Guarantor (for so long as such Subsidiary remains a
Guarantor) and (ii) secured on a pari passu basis by the Collateral (or
any portion thereof) on terms satisfactory to the Agents and the
Required Banks (which security interests shall be granted pursuant to
the Security Documents, by amendments thereto satisfactory to the
Agents and the Required Banks); provided further that if any Guarantor
or Collateral, as the case may be, is released pursuant to the Credit
Documents, such Guarantor or Collateral shall also be automatically
released as guarantor of or security for, as the case may be,
obligations pursuant to the New Senior Notes and the New Senior
Exchange Notes. At the time of the issuance of the New Senior Notes and
the New Senior Exchange Notes, if same are secured as contemplated
above, all actions reasonably deemed necessary or desirable by the
Administrative Agent, the Collateral Agent or the Required Banks
(including, without limitation, the filing of additional UCC financing
statements, mortgage amendments, etc.) to
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protect and preserve the security interests granted (and intended to be
granted) pursuant to the Security Documents (as same may be amended as
contemplated above) shall be taken by the Company and its Subsidiaries
at their own expense. All intercreditor arrangements, if any, in
connection with any securing of the New Senior Notes and/or the New
Senior Exchange Notes shall be required to be satisfactory to the
Agents and the Required Banks. To the extent the foregoing provisions
of this clause (xxi) require that any documentation or terms relating
to the New Senior Notes (excluding amendments to Credit Documents) be
satisfactory or approved by the Required Banks, such documentation or
terms shall be deemed satisfactory and approved by the Required Banks
so long as (i) the relevant documentation (in substantially final form
excluding pricing information and in form satisfactory to the
Administrative Agent) and a term sheet containing a range of pricing
information for the New Senior Notes is distributed to the Banks at
least five Business Days prior to pricing of the New Senior Notes, (ii)
the Required Banks do not object thereto within such five Business Day
period, (iii) the final economic terms of the New Senior Notes are
within the range of pricing information contained in the term sheet
distributed to the Banks and (iv) the Administrative Agent approves the
final form of the documentation relating to the New Senior Notes. To
the extent the foregoing provisions of this clause (xxi) require that
any documentation or terms relating to the New Senior Exchange Notes
(excluding amendments to Credit Documents) be satisfactory or approved
by the Required Banks, such documentation or terms shall be deemed
satisfactory and approved by the Required Banks so long as the relevant
documentation and terms are substantially identical (with modifications
of the type described in clause (y) of the first sentence of this
clause (xxi)) to the documentation and terms of the New Senior Notes
and satisfactory to the Administrative Agent. To the extent the Credit
Documents are to be amended (including any amendments and restatements
thereof) as contemplated above to provide for the sharing of security
with the New Senior Notes and the New Senior Exchange Notes, (i) such
amendments (or amendments and restatements) to the Pledge Agreements
and Security Agreements shall be distributed to the Banks and shall
require the affirmative approval of the Required Banks (with each Bank
which executes and delivers a copy of the Fifth Amendment hereby
agreeing that it will not unreasonably withhold or delay its consent)
and (ii) such amendments (or amendments and restatements) to Mortgages
or any other Security Documents (excluding the Pledge Agreements and
Security Agreements) shall be deemed satisfactory to the Required Banks
so long as same are in form approved by the Administrative Agent and
are reasonably consistent with the changes made pursuant to the Pledge
Agreements and Security Agreements; and
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(xxii) at the time of the issuance of TIDES by the Trust
pursuant to Section 9.13(a)(viii), (x) the Company shall be permitted
to issue to the Trust, and, upon liquidation or dissolution of the
Trust in accordance with the terms of the documentation for the TIDES
and the TIDES Mirror Debentures, the Trust shall be permitted to issue
to the public, convertible junior subordinated deferrable interest
debentures ("TIDES Mirror Debentures") which (i) will constitute
unsecured and unguaranteed obligations of the Company, (ii) shall
at no time exceed, in aggregate principal amount outstanding, 102% of
the aggregate liquidation preference of TIDES then outstanding (except
to the extent TIDES Mirror Debentures are issued by the Trust to
holders of TIDES in exchange therefor in the circumstances contemplated
by the relevant documentation therefor), (iii) will mature not
sooner than 15 years from the date of the issuance thereof, (iv) will
pay interest at a rate per annum not to exceed the stated dividend rate
on the TIDES, (v) will allow the Company to defer interest payments for
periods of up to 20 consecutive quarters and (vi) will have provisions
with respect to optional redemption and conversion into common stock of
the Company which are substantially similar to those of the TIDES and
(y) the Company shall be permitted to irrevocably guarantee, on a
subordinated basis, the Trust's payment of (i) all declared and unpaid
distributions on the TIDES to the extent of funds of the Trust
available therefor, (ii) all payments in the event of redemption of
TIDES to the extent of funds of the Trust available therefor and (iii)
the liquidation preference of the TIDES to the extent of the assets of
the Trust available for distribution to TIDES holders (the "TIDES
Guarantee"); provided that all documentation as described above in this
clause (xxii) shall be required to be reasonably satisfactory to the
Agents and the Required Banks. To the extent the foregoing provisions
of this clause (xxii) require that any documentation or terms relating
to the TIDES, the TIDES Guarantee and the TIDES Mirror Debentures be
satisfactory or approved by the Required Banks, such documentation or
terms shall be deemed satisfactory and approved by the Required Banks
so long as (i) the relevant documentation (in substantially final form
excluding pricing information and in form satisfactory to the
Administrative Agent) and a term sheet containing a range of pricing
information for the TIDES is distributed to the Banks at least five
Business Days prior to pricing of the TIDES, (ii) the Required Banks do
not object thereto within such five Business Day period, (iii) the
final economic terms of the TIDES are within the range of pricing
information contained in the term sheet distributed to the Banks and
(iv) the Administrative Agent approves the final form of the
documentation relating to the TIDES."
Section 9.05 of the Credit Agreement is modified by
(x) deleting the word "and" at the end of
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clause (xx) thereof, (y) deleting the period at the end of clause (xxi)
thereof and inserting in lieu thereof "; and" and (z) inserting the
following new clause (xxii) immediately at the end thereof:
"(xxii) the Company shall be permitted to establish the Trust
and acquire common equity interests therein, the Company shall be
permitted to issue and the Trust shall be permitted to acquire the
TIDES Mirror Debentures issued in accordance with Section 9.04(xxii)
and the Company may issue the TIDES Guarantee in accordance with the
provisions of Section 9.04(xxii)."
Section 9.06 of the Credit Agreement is amended by
adding the following immediately at the end thereof:
"Notwithstanding anything to the contrary contained in this
Section 9.06, the Company and the Trust shall be permitted to enter
into the transactions with each other contemplated by the documentation
for the TIDES, the TIDES Mirror Debentures and the TIDES Guarantee."
Section 9.11 of the Credit Agreement is hereby
modified by (x) deleting the word "or" immediately before clause
(iii) thereof and (y) inserting in appropriate order the
following new clauses (iv) and (v):
", (iv) after the issuance of New Senior Notes, New Senior
Exchange Notes, TIDES or TIDES Mirror Debentures, as the case may be,
make (or give any notice in respect of) any voluntary or optional
payment or prepayment on or redemption or acquisition for value of, or
any prepayment or redemption as a result of any change of control or
similar event of, including, in each case without limitation, by way of
depositing with the trustee with respect thereto money or securities
before due for the purpose of paying when due, any New Senior Notes,
New Senior Exchange Notes, TIDES or TIDES Mirror Debentures; provided
that, so long as no Default or Event of Default is in existence at the
time of the taking of any actions pursuant to this proviso or
immediately after giving effect thereto, the Company may from time to
time (A) purchase, repay or prepay New Senior Notes or New Senior
Exchange Notes so long as the aggregate amount of cash expended by the
Company and its Subsidiaries pursuant to this clause (A) after the
Fifth Amendment Effective Date does not exceed $100,000,000, (B) the
Company may issue New Senior Exchange Notes in exchange for New Senior
Notes, (C) in the circumstances contemplated by the documentation
relating to the TIDES and TIDES Mirror Debentures, the Trust may
dissolve and the TIDES Mirror Debentures may be distributed to the
holders of TIDES in accordance with the documentation therefor and (D)
to the extent permitted by Section 9.03(iii)(A), TIDES may be purchased
or redeemed and the correlating payments may be made with respect to
the TIDES Mirror Debentures, or (v) after the issuance of New Senior
Notes, New Senior
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Exchange Notes, TIDES or TIDES Mirror Debentures, as the case may be,
amend or modify, or permit the amendment or modification of, any
provision of the New Senior Notes, the New Senior Exchange Notes, the
TIDES or the TIDES Mirror Debentures or any agreement (including
without limitation, any certificate of designations, purchase
agreement, indenture or loan agreement) related thereto other than
amendments not adverse to the interest of Banks".
Section 9.12 of the Credit Agreement is hereby
amended by (x) deleting the word "and" immediately at the end of clause
(iv) thereof and by inserting a comma in lieu thereof and (y) inserting
the new phrase immediately at the end thereof:
"and (vi) applicable to the Trust and the Company under or by
reason of the TIDES, the TIDES Mirror Debentures, the TIDES Guarantee
or the documentation relating thereto as approved pursuant to Section
9.13(a)(viii) and/or 9.04(xxii), as the case may be".
Section 9.13(a) of the Credit Agreement is
hereby amended by inserting in appropriate order the following new
clause (viii):
"and (viii) for the issuance by a newly-created Wholly-Owned
Subsidiary of the Company, which shall be a grantor trust (the
"Trust"), of term income deferrable equity securities ("TIDES") and
trust common securities to the Company so long as (x) the gross
proceeds (which shall include the proceeds received from any exercise
of the underwriters' over-allotment option) received from such issuance
shall not exceed $150,000,000, (y) the terms and conditions thereof
shall be consistent with the term sheet therefor delivered to the
Administrative Agent prior to the Fifth Amendment Effective Date and
otherwise in form and substance reasonably satisfactory to the Agents
and the Required Banks and (z) all documentation evidencing the TIDES
shall be reasonably satisfactory to each Agent and the Required Banks.
To the extent the foregoing provisions of this clause (viii) require
that any documentation or terms relating to the TIDES, the TIDES
Guarantee and the TIDES Mirror Debentures be satisfactory or approved
by the Required Banks, such documentation or terms shall be deemed
satisfactory and approved by the Required Banks so long as (i) the
relevant documentation (in substantially final form excluding pricing
information and in form satisfactory to the Administrative Agent) and a
term sheet containing a range of pricing information for the TIDES is
distributed to the Banks at least five Business Days prior to pricing
of the TIDES, (ii) the Required Banks do not object thereto within such
five Business Day period, (iii) the final economic terms of the TIDES
are within the range of pricing information contained in the term sheet
distributed to the Banks and (iv) the Administrative
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Agent approves the final form of the documentation relating to the
TIDES."
Section 9.15 of the Credit Agreement is hereby
amended by adding the following new sentence immediately at the end
thereof:
"Notwithstanding anything to the contrary contained above, the
Trust may be established by the Company so long as all equity interests
therein (excluding equity interest represented by the TIDES) are owned
by the Company and, as contemplated by Section 8.15(i), the Trust shall
not be required to become a Guarantor or otherwise execute and deliver
Credit Documents."
Section 9 of the Credit Agreement is hereby
amended by inserting the following new Section 9.17 immediately at the
end thereof:
"9.17 Trust. Following the issuance of any TIDES,
the Trust (x) shall not engage in any business other than its holding
of TIDES Mirror Debentures and its issuance of TIDES, or engage in any
activities other than those that are incidental or related to the
foregoing and (y) shall not transfer any TIDES Mirror Debentures,
except in connection with an exchange therefor into common stock of the
Company or to the extent same are required to be distributed in
exchange for outstanding TIDES in accordance with the terms of the
relevant documentation therefor."
Section 10.07 of the Credit Agreement is hereby
amended by adding immediately following the phrase "any of the Security
Documents" each place it appears therein the phrase "(other than such
Security Documents, if any, that have been superseded or replaced in
accordance with the terms hereof by new Security Documents to effect
the security of the New Senior Notes and/or New Senior Exchange Notes
as permitted by Section 9.04(xxi) hereof, which new Security Documents
shall instead be included)".
The definition of Consolidated EBIT appearing in
Section 11 of the Credit Agreement is hereby amended by adding,
immediately after the phrase "income, Consolidated Interest Expense and
provision for taxes" appearing therein, the phrase "(in each case to
the extent same were deducted in determining Consolidated Net Income
for such period)".
The definition of Consolidated Interest Expense
appearing in Section 11 of the Credit Agreement is hereby amended by
inserting at the end thereof the following new sentence:
"Notwithstanding the foregoing, Consolidated Interest Expense
shall not include any amounts relating to interest or dividends
accruing on the TIDES Mirror
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Debentures (so long as held by the Trust) or the TIDES, except that an
amount equal to all cash payments made to holders of TIDES or, after
any exchange of same for TIDES Mirror Debentures, in respect of TIDES
Mirror Debentures shall be treated as a component of Consolidated
Interest Expense.
The definition of Leverage Ratio appearing in Section
11 is hereby amended by inserting at the end thereof the following new
sentence:
"Notwithstanding the foregoing, for purposes of calculating
Leverage Ratio, Consolidated Indebtedness shall not include the TIDES,
the TIDES Guarantee or the TIDES Mirror Debentures."
The definition of Secured Creditors appearing in
Section 11 is hereby amended by inserting at the end thereof the
following new sentence:
"After the date of issuance of New Senior Notes in accordance
with Section 9.04(xxi), to the extent the New Senior Notes and the New
Senior Exchange Notes are secured pursuant to the Security Documents
(as a result of the amendments to the Security Documents as
contemplated by Section 9.04(xxi)), then the term "Secured Creditors"
shall also include the holders of the New Senior Notes and the New
Senior Exchange Notes and any trustee therefor, in each case to the
extent same constitute Secured Creditors pursuant to the Security
Documents as so amended."
The definition of Security Documents in Section 11 is
hereby amended by adding immediately preceding the semi-colon therein
the phrase ", as each shall be amended (including as amended and
restated), modified or supplemented from time to time, including
without limitation to secure the New Senior Notes and the New Senior
Exchange Notes as permitted by Section 9.04(xxi)".
Section 11 of the Credit Agreement is hereby further
amended by inserting in appropriate order the following new
definitions:
"'Fifth Amendment' shall mean the Fifth Amendment to this
Agreement, dated as of March 16, 1998.
'Fifth Amendment Effective Date' shall mean the date the Fifth
Amendment becomes effective in accordance with its terms.
'New Senior Exchange Notes' shall have the meaning provided in
Section 9.04(xxi).
'New Senior Notes' shall have the meaning provided
in Section 9.04(xxi).
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'TIDES' shall have the meaning provided in Section
9.13(a)(viii).
'TIDES Guarantee' shall have the meaning provided in
Section 9.04(xxii).
'TIDES Mirror Debentures' shall have the meaning
provided in Section 9.04(a)(xxii).
'Trust' shall have the meaning provided in Section
9.13(a)(viii)."
As contemplated by Section 13.12(a) of the Credit
Agreement, the Banks hereby agree that all Collateral under all of the
Security Documents shall be automatically released and all such
Security Documents shall be terminated and of no further force or
effect on the first date after the Fifth Amendment Effective Date upon
which (x) no Default or Event of Default shall be in existence and (y)
the Company has then outstanding Rated Indebtedness which is at such
time rated at least BBB- by S&P and Baa3 by Moody's, provided that the
Rated Indebtedness described above shall be required to be unsecured
or, if secured, both S&P and Moody's shall have stated to the Company
and the Administrative Agent in writing that, assuming that neither the
Credit Agreement nor the New Senior Notes were secured, the long-term
unsecured Indebtedness pursuant to the Credit Agreement and the New
Senior Notes would be rated at least BBB- by S&P and Baa3 by Moody's at
such time, provided further that such release shall not be effected
until the tenth Business Day after the Company delivers to the
Administrative Agent written notice of the attainment of such rating
and, if required above, a copy of the written statements specified
above. Notwithstanding anything to the contrary contained in the
immediately preceding sentence or the proviso thereto, the Required
Banks hereby agree that if the Company at any time requests in writing
that the Administrative Agent cause the release of all Collateral under
all the Security Documents and establishes to the satisfaction of the
Administrative Agent that (x) no Default or Event of Default is in
existence (and no Default or Event of Default shall be in existence
after the release described below) and (y) at the time of the release
of all Collateral under all the Security Documents (and after giving
effect thereto), the Company's Rated Indebtedness (which shall be
unsecured Indebtedness after the release of Collateral contemplated
hereby, and shall include the Indebtedness under the Credit Agreement
and the New Senior Notes or the New Senior Exchange Notes, as the case
may be, to the extent then outstanding) shall be rated at least BBB- by
S&P and Baa3 by Moody's (and the Company shall have furnished to the
Administrative Agent a written statement from each of S&P and Moody's
to the effect that, if neither the Credit Agreement nor the New Senior
Notes or the New Senior Exchange Notes, as the case may be, were
secured, the
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long term unsecured Indebtedness pursuant to the Credit Agreement and
the New Senior Notes would be rated at least BBB- by S&P and Baa3 by
Moody's at such time), then the Administrative Agent is hereby
authorized and directed by the Banks to release (and direct the
Collateral Agent to release) all Collateral under all the Security
Documents, in which case all Collateral under all the Security
Documents shall be so released and all such Security Documents shall be
terminated and of no further force or effect. The Administrative Agent
and the Collateral Agent shall be entitled (but not required), as a
condition to granting any releases as described above, to request such
officer's certificates and opinions of counsel from the Company as it
may reasonably deem necessary or desirable. The Banks hereby authorize
and direct the Administrative Agent and the Collateral Agent to take
all actions as may be reasonably requested by the Company in
effectuating the intent of the foregoing provisions of this Section 26,
and the Banks further agree that neither the Administrative Agent nor
the Collateral Agent shall have any liability for any actions taken by
the Administrative Agent or Collateral Agent in good faith in
accordance with the provisions of this Section 26 or in furtherance
thereof.
In addition to the express terms of this Amendment
and notwithstanding anything to the contrary contained in the Credit
Documents, the parties hereto acknowledge and agree that this Amendment
is intended to permit, and nothing contained in the Credit Documents
shall prohibit (except as expressly set forth in this Amendment), the
creation of the Trust, the issuance of the TIDES, the TIDES Mirror
Debentures, the TIDES Guarantee, the New Senior Notes and the New
Senior Exchange Notes (subject to the requirements therefor contained
in this Amendment) and the compliance by the Company and the Trust with
the documentation related thereto once such documentation has been
approved in accordance with Sections 9.04 and 9.13(a) to the Credit
Agreement (as amended hereby).
By executing and delivering this Amendment, each Bank
which is a signatory hereto agrees (x) that it will not unreasonably
withhold or delay its consent to any modifications to the Pledge
Agreements or Security Agreements as contemplated by the provisions of
clause (i) of the last sentence of Section 9.04(xxi) to the Credit
Agreement and (y) that such Bank hereby consents to any amendments (or
amendments and restatements) to other Security Documents effected in
accordance with the provisions of clause (ii) of the last sentence of
Section 9.04(xxi) to the Credit Agreement.
Miscellaneous.
In order to induce the Banks to enter into this
Amendment, the Company and the Canadian Borrower hereby
14
represent and warrant that (i) all representations and warranties
contained in Section 7 of the Credit Agreement (as amended by this
Amendment) are true and correct in all material respects on and as of
the Fifth Amendment Effective Date and after giving effect to the
Amendment (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 (ii)
there exists no Default or Event of Default on the Fifth Amendment
Effective Date after giving effect to this Amendment.
This Amendment 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 Amendment 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.
THIS AMENDMENT 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.
This Amendment shall become effective on the date
(the "Fifth Amendment 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 by usage of facsimile transmission) the
same to the Administrative Agent at its Notice Office. This Amendment
and the agreements contained herein (including without limitation the
agreements contained in Section 26 of Part I hereof) shall be binding
on the successors and assigns of the parties hereto.
From and after the Fifth Amendment Effective Date,
all references in the Credit Agreement and each of the Credit Documents
to the Credit Agreement shall be deemed to be references to the Credit
Agreement as amended hereby.
To induce the Banks to enter into this Amendment, the
Company hereby agrees to pay to each Bank which executes and delivers
to the Administrative Agent a copy of this Amendment and consents to
any modifications or amendment to the Pledge Agreements and Security
Agreements contemplated by Section 9.04(xxi) a fee in the amount equal
to 1/5 of 1% of the Commitment of such Bank as same is in effect on the
date which occurs
15
10 days after the first date after the execution of this Amendment upon
which New Senior Notes or TIDES are issued (which Commitment shall be
determined after giving effect to any reduction on or prior to such
date to the Commitment of such Bank as a result of any reductions to
the Total Commitment on or prior to such date pursuant to the proviso
of Section 3.03(d) of the Credit Agreement as added by this Amendment),
which fee shall be payable on the date which occurs 10 days after the
first date after the Fifth Amendment Effective Date upon which New
Senior Notes or TIDES are issued. Notwithstanding anything to the
contrary contained above, the fee described above shall not be payable
(i) if the Required Banks shall not have executed and delivered this
Amendment or (ii) to any Bank if such Bank refuses to consent to any
documentation which requires the approval of the Required Banks
pursuant to Section 9.04(xxi), 9.04(xxii) or 9.13(a)(viii); provided
that a Bank shall not be deemed to have withheld its consent to any
documentation which is deemed approved by the Required Banks if not
objected to by them, so long as the respective Bank has not objected in
writing to the Administrative Agent to the terms of the respective
documentation.
* * *
16
IN WITNESS WHEREOF, the parties hereto have caused a
counterpart of this Amendment to be duly executed and delivered as of
the date first above written.
COLTEC INDUSTRIES INC
By_______________________
Title:
COLTEC AEROSPACE CANADA LTD.
By_______________________
Title:
BANKERS TRUST COMPANY,
Individually and as
Administrative Agent
By_______________________
Title:
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
Individually and as
Documentation Agent
17
By____________________________
Title:
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____________________________
Title:
ALLIED IRISH BANK, PLC,
CAYMAN ISLANDS BRANCH
18
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:
19
THE BANK OF NEW YORK
By____________________________
Title:
BANK OF SCOTLAND
By____________________________
Title:
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY
By____________________________
Title:
NATEXIS BANQUE BFCE, formerly
BANQUE FRANCAISE DU COMMERCE
EXTERIEUR
By____________________________
Title:
CIBC INC.
20
By____________________________
Title:
THE YASUDA TRUST & BANKING
COMPANY, LTD.
COMMERCIAL LOAN FUNDING TRUST I
By Lehman Commercial Paper
Inc., not in its
individual capacity but
solely as administrative
agent.
By___________________________
Title:
CORESTATES BANK
By___________________________
Title:
CREDIT LYONNAIS ATLANTA AGENCY
By___________________________
Title:
21
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___________________________
Title:
THE FUJI BANK, LIMITED,
ATLANTA AGENCY
By___________________________
Title:
22
ERSTE BANK DER
OESTERREICHISCHEN SPARKASSEN
AG (f/k/a Girocredit Bank AG
Der Sparkassen,
Grand Cayman Island Branch)
By___________________________
Title:
THE INDUSTRIAL BANK OF JAPAN,
LIMITED
By___________________________
Title:
LEHMAN COMMERCIAL PAPER INC.
By___________________________
Title:
LLOYDS BANK PLC
23
By___________________________
Title:
MELLON BANK, N.A.
By___________________________
Title:
NATIONSBANK, N.A.
By___________________________
Title:
THE SAKURA BANK, LTD.
By___________________________
Title:
THE SANWA BANK, LIMITED
By___________________________
Title:
SOCIETE GENERALE
By___________________________
24
Title:
THE SUMITOMO BANK, LIMITED
By___________________________
Title:
THE TOKAI BANK, LIMITED
NEW YORK BRANCH
By___________________________
Title:
WACHOVIA BANK, N.A.
By___________________________
Title:
BT BANK OF CANADA
By___________________________
Title:
BANK OF AMERICA CANADA
By___________________________
25
Title:
THE CHASE MANHATTAN BANK OF
CANADA
By___________________________
Title:
CREDIT LYONNAIS CANADA
By___________________________
Title:
CANADIAN IMPERIAL BANK OF
COMMERCE
By___________________________
Title:
MELLON BANK CANADA
By___________________________
Title:
Acknowledged and agreed:
AMI INDUSTRIES INC.
26
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
HOLLEY PERFORMANCE PRODUCTS
INC
JAMCO PRODUCTS, LLC
MENASCO AEROSYSTEMS INC
STEMCO INC
WALBAR INC
By__________________________
Title:
On behalf of each of the
above
Subsidiary Guarantors