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4.27 SIXTH AMENDMENT TO CREDIT AGREEMENT DATED AS OF
SEPTEMBER 9, 1998
SIXTH AMENDMENT TO CREDIT AGREEMENT
SIXTH AMENDMENT TO CREDIT AGREEMENT (this "Amendment"), dated as of September 9,
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"); and
WHEREAS, the parties hereto have agreed to amend the Credit
Agreement as herein provided;
NOW, THEREFORE, it is agreed:
I. Amendments to Credit Agreement.
1. Section 3.03(e) of the Credit Agreement is hereby amended
by inserting immediately after sub-clause (E) appearing in the second
parenthetical thereof the following: "and (F) the sale of the Burbank Property,
if consummated prior to June 30, 1999 pursuant to the requirements of Section
9.02(xxvi)".
2. Section 7.08 of the Credit Agreement is hereby amended by
deleting clause (b) thereof in its entirety and inserting in lieu thereof the
following new clause (b):
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"(b) No Credit Party nor any of its Subsidiaries is engaged,
directly or indirectly, principally, or as one of its important
activities, in the business of extending, or arranging for the
extension of, credit for the purpose of purchasing or carrying Margin
Stock. No part of any Credit Event (or the proceeds thereof) will be
used to purchase or carry any Margin Stock or to extend credit for the
purpose of purchasing or carrying any Margin Stock except for (i)
purchases of Company Common Stock in compliance with Section 9.03 and
(ii) purchases of up to $2,500,000 in the aggregate at any time
outstanding with respect to Permitted Investments made under Section
9.05(vi). Neither the making of any Loan hereunder, nor the use of the
proceeds thereof, nor the occurrence of any other Credit Event, will
violate or be inconsistent with the provisions of the Margin
Regulations. At the time of each Credit Event and after giving effect
thereto, less than 25% of the value (as determined by any reasonable
method) of the assets of the Company and its Subsidiaries taken as a
whole will constitute Margin Stock."
3. Section 7 of the Credit Agreement is hereby amended by
inserting the following new Section 7.29 at the end thereof:
"7.29 Year 2000. All Information Systems and Equipment are
either Year 2000 Compliant, or any reprogramming, remediation or any
other corrective action, including the internal testing of all such
Information Systems and Equipment, are expected to be completed by June
30, 1999. Furthermore, to the extent that such reprogramming,
remediation or other corrective action is required, the cost thereof,
as well as the cost of the reasonably foreseeable consequences of
failure to become Year 2000 Compliant, to the Company and its
Subsidiaries (including, without limitation, reprogramming errors and
the failure of other systems or equipment) is not reasonably expected
to result in a Default, an Event of Default or a materially adverse
effect on the business, property, assets, condition (financial or
otherwise) or prospects of the Company (or of the Company and its
Subsidiaries taken as a whole) or on the rights or remedies of the
Banks or any Agent under any Credit Document or on the ability of the
Company and its Subsidiaries to perform their obligations to the Banks
under any Credit Document."
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4. Section 8 of the Credit Agreement is hereby amended by
inserting the following new Section 8.17 at the end thereof:
"8.17 Margin Regulations. Except as provided in the second
succeeding sentence, neither the Company nor any of its Subsidiaries
shall acquire any Margin Stock (other than shares of Company Common
Stock acquired in compliance with Section 9.03) if, after giving
effect to such acquisition, the aggregate purchase price of all Margin
Stock (other than shares of Company Common Stock held by the Company
and its Subsidiaries) owned by the Company and its Subsidiaries
exceeds $2,500,000. So long as the covenant contained in the
immediately preceding sentence is complied with, all Margin Stock at
any time owned by the Company and its Subsidiaries shall not
constitute Collateral and no security interest shall be granted (or
required to be granted) therein pursuant to any Credit Document. If at
any time the aggregate purchase price of all Margin Stock owned by the
Company and its Subsidiaries exceeds $2,500,000 (exclusive of shares
of Company Common Stock held by the Company or any of its
Subsidiaries), then (x) all Margin Stock owned by the Credit Parties
(other than shares of Company Common Stock) shall be pledged, and
delivered for pledge, pursuant to the respective Pledge Agreement (but
only to the extent that the aggregate purchase price of such Margin
Stock exceeds $2,500,000) and (y) the Company shall execute and
deliver to the Banks appropriately completed forms (including, without
limitation, Form U-1) establishing compliance with the Margin
Regulations. If at any time any Margin Stock is required to be pledged
as a result of the provisions of the immediately preceding sentence,
repayments of outstanding Obligations may be required (and subsequent
Credit Events may be restricted but only to the extent necessary) in
order to be in compliance with the applicable provisions of the Margin
Regulations."
5. Section 9.02 of the Credit Agreement is hereby amended by
(i) deleting the word "and" appearing at the end of clause (xxiv) thereof, (ii)
deleting the period appearing at the end of clause (xxv) thereof and inserting
"; and" in lieu thereof and (iii) inserting in appropriate order the following
new clause (xxvi):
"(xxvi) the Company (or its Subsidiary that is the fee owner
of the Burbank Property) shall be permitted to agree to sell, and to
consummate the sale of, the Burbank
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Property so long as such sale is for fair market value (as determined
in good faith by the Board of Directors of the Company) and results in
consideration consisting of cash (it being understood and agreed that
such consideration may consist of one or more promissory notes so long
as such notes shall be due and payable in cash within 180 days after
the issuance thereof), and notwithstanding anything to the contrary
herein, the Net Sale Proceeds from the sale of the Burbank Property
need not be applied in accordance with Section 3.03(e)."
6. Section 9.03 of the Credit Agreement is hereby amended by
adding the following new sentence immediately at the end thereof:
"In addition to the purchases of Company Common Stock permitted
pursuant to the preceding provisions of this Section 9.03, during the
eighteen-month period commencing on September 1, 1998 and ending on
March 1, 2000, the Company shall be permitted to purchase additional
shares of Company Common Stock so long as (i) there shall exist no
Default or Event of Default (both before and after giving effect
thereto) and (ii) the aggregate purchase price of Company Common Stock
acquired by the Company pursuant to this sentence in such
eighteen-month period does not exceed $75,000,000."
7. Section 9.05 of the Credit Agreement is hereby amended by
(i) deleting the word "and" appearing at the end of clause (xxi) thereof, (ii)
deleting the period appearing at the end of clause (xxii) thereof and inserting
"; and" in lieu thereof and (iii) inserting in appropriate order the following
new clause (xxiii):
"(xxiii) the Company may purchase Company Common Stock to the
extent permitted by Section 9.03."
8. Section 11 of the Credit Agreement is hereby amended by
inserting in appropriate order the following new definitions:
"'Burbank Property' shall mean those certain parcels of land (and the
improvements thereon) located at 100 East Cedar Avenue, Burbank,
California.
`Information Systems and Equipment' shall mean all computer hardware,
firmware and software, as well as other information processing
systems, or any equipment containing
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embedded microchips, whether directly owned, licensed, leased, operated
or otherwise controlled by the Company or any of its Subsidiaries,
including through third-party service providers, and which, in whole or
in part, are used, operated, relied upon, or integral to, the Company's
or any of its Subsidiaries' conduct of their business.
'Margin Regulations' shall mean and include each of Regulation T,
Regulation U and Regulation X.
`Regulation T' shall mean Regulation T of the Board of Governors of
the Federal Reserve System as from time to time in effect and any
successor to all or a portion thereof.
`Regulation X' shall mean Regulation X of the Board of Governors of
the Federal Reserve System as from time to time in effect and any
successor to all or a portion thereof.
`Year 2000 Compliant' means, with respect to any Information Systems
and Equipment, that such Information Systems and Equipment accurately
process date data (including, but not limited to, calculating,
comparing and sequencing), before, during and after the year 2000, as
well as same and multi-century dates, or between the years 1999 and
2000, taking into account all leap years, including the fact that the
year 2000 is a leap year, and further, that when used in combination
with, or interfacing with, other Information Systems and Equipment,
shall accurately accept, release and exchange date data, and shall in
all material respects continue to function in the same manner as it
performs as of September 9, 1998 and shall not otherwise impair the
accuracy or functionality of Information Systems and Equipment."
II. Miscellaneous.
1. In order to induce the Banks to enter into this Amendment,
the Company and the Canadian Borrower hereby 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 Sixth 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
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no Default or Event of Default on the Sixth Amendment Effective Date after
giving effect to this Amendment.
2. 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.
3. 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.
4. 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.
5. This Amendment shall become effective on the date (the
"Sixth 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, without
limitation, by usage of facsimile transmission) the same to the Administrative
Agent at its Notice Office. This Amendment and the agreements contained herein
shall be binding on the successors and assigns of the parties hereto.
6. From and after the Sixth 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.
* * *
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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 /s/ Thomas B. Jones
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Title: Treasurer
COLTEC AEROSPACE CANADA LTD.
By /s/ Robert J. Tubbs
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Title: Vice President
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BANKERS TRUST COMPANY,
Individually and as
Administrative Agent
By /s/ G. Andrew Keith
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Title: Vice President
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
Individually and as
Documentation Agent
By /s/ Michale J. Mullaney
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Title: Vice President
THE CHASE MANHATTAN BANK,
Individually and as
Syndication Agent
By /s/
--------------------------------------
Title: Vice President
BANK OF MONTREAL,
Individually and as Canadian
Paying Agent and Canadian
Documentation Agent
By /s/ Bruce A. Pietka
--------------------------------------
Title: Director
ALLIED IRISH BANK, PLC,
CAYMAN ISLANDS BRANCH
By /s/ William J. Strickland
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/s/ Tracey Duffy
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Title: Sr. Vice President
Asst. Vice President
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BANK COMMERCIALE ITALIANA
NEW YORK BRANCH
By /s/ C. Dougherty
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Title: V.P.
By /s/ Karen Purelis
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Title: V.P.
BANK OF IRELAND
By /s/
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Title: Corporate Officer
THE BANK OF NEW YORK
By /s/ Ann Marie Hughes
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Title: Vice President
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY
By /s/ Freidrich N. Wilmar
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Title: Vice President
NATEXIS BANQUE BFCE, formerly
BANQUE FRANCAISE DU COMMERCE
EXTERIEUR
By /s/
--------------------------------------
Title: /s/
By /s/ G. Kevin Dooley
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Title: Vice President
CIBC INC.
By /s/ Thor Zaluckyj
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Title: Executive Director
CIBC Oppenheimer Corp., as AGENT
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ROYAL BANK OF CANADA
By
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Title:
COMMERCIAL LOAN FUNDING TRUST I
By Lehman Commercial Paper Inc.,
not in its individual capacity but
solely as
administrative agent.
By /s/ Michale Swanson
--------------------------------------
Title: Authorized Signatory
MELLON BANK CANADA
By /s/
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Title: Vice President
CREDIT LYONNAIS ATLANTA AGENCY
By /s/ David M. Caunn
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Title: First Vice President
CREDIT LYONNAIS NEW YORK
BRANCH
By /s/ Robert Ivosevich
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Title: Senior Vice President
THE DAI-ICHI KANGYO BANK, LTD.
By /s/
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Title: Account Officer
FIRST UNION NATIONAL BANK
(f/k/a First Union National
Bank of North Carolina)
By /s/ Patrick D. Finn
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Title: Senior Vice President
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THE FUJI BANK, LIMITED,
ATLANTA AGENCY
By /s/ Toshihiro Mitsui
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Title: Senior Vice President &
Joint General Manager
ERSTE BANK DER
OESTERREICHISCHEN SPARKASSEN
AG (f/k/a Girocredit Bank AG
Der Sparkassen,
Grand Cayman Island Branch)
By /s/ Arcinee Hovanessian
--------------------------------------
Title: Vice President - Erste Bank
New York
By /s/ Paul Judicke
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Title: Vice President - Erste Bank
New York
THE INDUSTRIAL BANK OF JAPAN,
LIMITED
By /s/ Kenji Tsugami
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Title: General Manager
LLOYDS BANK PLC
By /s/ David C. Rodwky
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Title: Assistant Vice President
R156
By /s/ Mela Dorgan
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Title: Assistant Vice President
Structured Finance D094
MELLON BANK, N.A.
By /s/ M. Johnst
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Title: AVP
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NATIONSBANK, N.A.
By /s/
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Title: Senior Vice President
BANK LEUMI TRUST COMPANY
OF NEW YORK
By /s/ Sami Ambar
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Title: Vice President
THE SUMITOMO BANK, LIMITED
By /s/ John C. Kissinger
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Title: General Manager
THE TOKAI BANK, LIMITED
NEW YORK BRANCH
By /s/
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Title: Assistant General Manager
WACHOVIA BANK, N.A.
By /s/ Timothy R. Hileman
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Title: Senior Vice President
BT BANK OF CANADA
By /s/ James E. Kellar
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Title: Principal
By /s/ Brian S. Strauss
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Title: Principal
BANK OF AMERICA CANADA
By /s/
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Title: /s/
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THE CHASE MANHATTAN BANK OF
CANADA
By /s/ Christine Chan
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Title: Vice President
By /s/ Arun K. Bery
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Title: Vice President
CREDIT LYONNAIS CANADA
By /s/ Robert Dyck
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Title: Manager, Corporate Banking
By /s/ David J. Farmer
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Title: First Vice President and
Manager, Central Region
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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/ Robert J. Tubbs
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Title: Vice President
On behalf of each of the above
Subsidiary Guarantors