EXHIBIT 10.15
PLEDGE AGREEMENT
This PLEDGE AGREEMENT, dated as of May __, 2002 (together with
all amendments, if any, from time to time hereto, this "Agreement"), among each
of the parties named as a Pledgor on the signature pages hereto (individually, a
"Pledgor" and collectively, the "Pledgors") and BANK OF AMERICA, N.A. (the
"Agent").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, pursuant to that certain Credit Agreement, dated as
May 16, 2002, by and among the financial institutions from time to time parties
thereto (such financial institutions, together with their respective successors
and assigns, are referred to hereinafter each individually as a "Lender" and
collectively as the "Lenders"), the Agent, Citicorp USA, Inc., as Syndication
Agent, and Coltec Industries Inc, a Pennsylvania corporation ("Coltec"), Coltec
Industrial Products LLC ("CIP"), Xxxxxxx Sealing Technologies LLC, a Delaware
limited liability company ("Xxxxxxx Sealing"), Xxxxxxx Bearings LLC, a Delaware
limited liability company ("Garlock Bearing"), Xxxxx Tool Company, a Michigan
corporation ("Xxxxx Tool"), and Stemco LLC, a Delaware limited liability company
("Stemco" and, together with Coltec, CIP, Xxxxxxx Sealing, Garlock Bearing and
Xxxxx Tool, each individually referred to herein as a "Borrower" and
collectively as the "Borrowers") with Coltec acting in its capacity as Funds
Administrator for the Borrowers (as amended, restated or otherwise modified from
time to time, the "Credit Agreement"), the Lenders have agreed to make Loans to
and provide other financial accommodations for the benefit of the Borrowers;
WHEREAS, EnPro Industries, Inc., as parent company to the
Borrowers and as a Pledgor hereunder (herein, the "Parent"), has executed that
certain Parent Guarantee dated as of the date hereof (as from time to time
reaffirmed, amended, restated, supplemented or otherwise modified, the "Parent
Guarantee") in favor of the Agent, pursuant to which the Parent has agreed to
guarantee all the "Obligations" (as defined in the Credit Agreement);
WHEREAS, the Pledgors (other than the Parent and the
Borrowers) have executed that certain Subsidiary Guarantee dated as of the date
hereof (as from time to time reaffirmed, amended, restated, supplemented or
otherwise modified, the "Subsidiary Guarantee") in favor of the Agent, pursuant
to which such Pledgors have agreed to guarantee all the "Obligations" (as
defined in the Credit Agreement);
WHEREAS, each Pledgor is the record and beneficial owner of
the shares of capital stock, limited liability company equity interests and/or
the promissory notes and instruments listed on Schedule I hereto; and
WHEREAS, the extension and/or continued extension of credit,
as aforesaid, by the Lenders is necessary and desirable to the conduct and
operation of the business of the Borrowers and will inure to the financial
benefit of each Pledgor and in order to induce the Lenders to make the Loans and
provide other financial accommodations as set forth in the Credit Agreement,
each Pledgor has agreed to pledge the Pledged Collateral (as defined below) to
the Agent in accordance herewith;
NOW, THEREFORE, in consideration of the premises and the
covenants hereinafter contained and to induce the Lenders to make Loans and
provide other financial accommodations under the Credit Agreement, it is agreed
as follows:
1. Definitions. Unless otherwise defined herein, terms
defined in the Credit Agreement are used herein as therein defined, and the
following shall have (unless otherwise provided elsewhere in this Agreement) the
following respective meanings (such meanings being equally applicable to both
the singular and plural form of the terms defined):
"Bankruptcy Code" means title 11, United States Code, as
amended from time to time, and any successor statute thereto.
"Domestic Pledged Entity" means an issuer of Pledged Shares or
Pledged Indebtedness having a jurisdiction of organization inside the
United States.
"Foreign Pledged Entity" means an issuer of Pledged Shares or
Pledged Indebtedness having a jurisdiction of organization outside the
United States.
"Pledged Collateral" has the meaning assigned to such term in
Section 2 hereof.
"Pledged Entity" means either a Domestic Pledged Entity or a
Foreign Pledged Entity.
"Pledged Indebtedness" means the indebtedness evidenced by the
promissory notes and instruments listed on Part B of Schedule I hereto.
"Pledged Shares" means those shares of stock and equity
membership interests listed on Part A of Schedule I hereto.
"Secured Obligations" has the meaning assigned to such term in
Section 3 hereof.
2. Pledge. Each Pledgor hereby pledges to the Agent, and
grants to the Agent, a first priority security interest in all of the following
(collectively, the "Pledged Collateral"):
(a) the Pledged Shares and any and all certificates
representing the Pledged Shares, and, subject to Section 7(b) hereof,
all dividends, distributions, cash, instruments and other property or
proceeds from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of the Pledged
Shares;
(b) subject to the terms of this Agreement, all rights,
privileges, authority or power of such Pledgor as owner or holder of
the Pledged Shares, including, but not limited to, all rights under any
by-laws, shareholder agreement, operating agreement or similar
agreement related thereto; and
(c) the Pledged Indebtedness and the promissory notes or
instruments evidencing the Pledged Indebtedness, and all interest,
cash, instruments and other
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property and assets from time to time received, receivable or otherwise
distributed in respect of the Pledged Indebtedness; and
(d) all additional Indebtedness arising after the date hereof
and owing to such Pledgor from any Person and evidenced by promissory
notes or other instruments, together with such promissory notes and
instruments, and all interest, cash, instruments and other property and
assets from time to time received, receivable or otherwise distributed
in respect of that Pledged Indebtedness.
3. Security for Obligations. This Agreement secures, and
the Pledged Collateral is security for, the prompt payment in full when due,
whether at stated maturity, by acceleration or otherwise, and performance of
all of the Pledgors' obligations and liabilities under the Credit Agreement and
the other Loan Documents, as applicable, and all obligations of each Pledgor
now or hereafter existing under this Agreement including, without limitation,
all fees, costs and expenses whether in connection with collection actions
hereunder or otherwise (collectively, the "Secured Obligations").
4. Delivery of Pledged Collateral. All certificates and all
promissory notes and instruments evidencing the Pledged Collateral shall be
delivered to and held by or on behalf of the Agent, pursuant hereto. All
Pledged Shares evidenced by certificates shall be accompanied by duly executed
instruments of transfer or assignment in blank, all in form and substance
satisfactory to the Agent and all promissory notes or other instruments
evidencing the Pledged Indebtedness shall be endorsed by each applicable
Pledgor.
5. Representations and Warranties. Each Pledgor represents
and warrants to the Agent that:
(a) Each Pledgor is, and at the time of delivery of the
Pledged Shares to the Agent will be, the sole holder of record and the
sole beneficial owner of such Pledged Collateral pledged by such
Pledgor free and clear of any lien thereon or affecting the title
thereto, except for any lien created by this Agreement. Each Pledgor is
and at the time of delivery of the Pledged Indebtedness to the Agent
will be, the sole owner of such Pledged Collateral free and clear of
any lien thereon or affecting title thereto, except for any lien
created by this Agreement;
(b) All of the Pledged Shares representing shares of capital
stock have been duly authorized, validly issued and are fully paid and
non-assessable, the Pledged Indebtedness has been duly authorized,
authenticated or issued and delivered by, and is the legal, valid and
binding obligation of, the Pledged Entities, except as enforceability
may be limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting creditors' rights generally, by general
equitable principles or by principles of good faith and fair dealing,
and no such Pledged Entity is in default thereunder;
(c) Each Pledgor has the right and requisite authority to
pledge, assign, transfer, deliver, deposit and set over the Pledged
Collateral pledged by such Pledgor to the Agent as provided herein;
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(d) None of the Pledged Shares or Pledged Indebtedness has
been issued or transferred in violation of the securities registration,
securities disclosure or similar laws of any jurisdiction to which such
issuance or transfer may be subject;
(e) All of the Pledged Shares of corporations and limited
liability companies are presently owned by each applicable Pledgor, and
are presently represented by the certificates, if any, listed on Part A
of Schedule I hereto. As of the date hereof, there are no existing
options, warrants, calls or commitments of any character whatsoever
relating to the Pledged Shares;
(f) No consent, approval, authorization or other order or
other action by, and no notice to or filing with, any governmental
authority or any other Person is required (i) for the pledge by any
Pledgor of the Pledged Collateral pursuant to this Agreement or for the
execution, delivery or performance of this Agreement by any Pledgor, or
(ii) for the exercise by the Agent of the voting or other rights
provided for in this Agreement or the remedies in respect of the
Pledged Collateral pursuant to this Agreement, except as may be
required in connection with such disposition by laws affecting the
offering and sale of securities generally, except under antitrust and
similar laws and except for the filing of UCC financing statements;
(g) The pledge, assignment and delivery of the Pledged
Collateral pursuant to this Agreement will create a valid first
priority lien on and a first priority perfected security interest in
favor of the Agent in the Pledged Collateral and the proceeds thereof,
securing the payment of the Secured Obligations, subject to no other
lien;
(h) This Agreement has been duly authorized, executed and
delivered by each Pledgor and constitutes a legal, valid and binding
obligation of each Pledgor enforceable against each Pledgor in
accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting creditors' rights generally, by general equitable
principles or by principles of good faith and fair dealing;
(i) Except as disclosed on Schedule I, the Pledged Shares
constitute 100% of the issued and outstanding shares of capital stock
or equity membership interests, as applicable, of each Domestic Pledged
Entity and 65% of the issued and outstanding shares of capital stock of
each Foreign Pledged Entity; and
(j) Except as disclosed on Part B of Schedule I, none of the
Pledged Indebtedness is subordinated in right of payment to other
indebtedness (except for the Secured Obligations) or subject to the
terms of an indenture.
The representations and warranties set forth in this Section 5
shall survive the execution and delivery of this Agreement.
6. Covenants. Each Pledgor covenants and agrees that until
the indefeasible payment in full of all the Borrowers' Obligations and the
Secured Obligations and the expiration of the Lenders' commitment to make
advances under the Credit Agreement (the "Termination Date"):
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(a) Without the prior written consent of the Agent, each
Pledgor will not sell, assign, transfer, pledge, or otherwise encumber
any of its rights in or to the Pledged Collateral, or any unpaid
dividends, interest or other distributions or payments with respect to
the Pledged Collateral or xxxxx x xxxx in the Pledged Collateral,
unless otherwise permitted by the Credit Agreement or consented to by
the Required Lenders;
(b) Each Pledgor will, at its expense, promptly execute,
acknowledge and deliver all such instruments and take all such actions
as the Agent from time to time may request in order to ensure to the
Agent the benefits of the liens in and to the Pledged Collateral
intended to be created by this Agreement, including the filing of any
necessary Uniform Commercial Code financing statements, which may be
filed by the Agent with or (to the extent permitted by law) without the
signature of any Pledgor, and will cooperate with the Agent, at each
Pledgor's expense, in obtaining all necessary approvals and making all
necessary filings under federal, state, local or foreign law in
connection with such liens or any sale or transfer of the Pledged
Collateral;
(c) Each Pledgor has and will defend the title to the Pledged
Collateral and the liens of the Agent in the Pledged Collateral against
the claim of any Person and will maintain and preserve such liens;
(d) Each Pledgor will, upon obtaining ownership of any
additional capital stock, equity membership interests, promissory notes
or instruments of a Pledged Entity otherwise required to be pledged to
the Agent pursuant to any of the Loan Documents, which capital stock,
equity membership interests, notes or instruments are not already
Pledged Collateral, promptly (and in any event within five (5) Business
Days) deliver to the Agent an amendment to this Agreement, duly
executed by such Pledgor, in substantially the form of Schedule II
hereto (a "Pledge Amendment") in respect of any such additional capital
stock, equity membership interests, notes or instruments pursuant to
which such Pledgor shall pledge to the Agent all of such additional
capital stock, equity membership interests, notes or instruments. Each
Pledgor hereby authorizes the Agent to attach each Pledge Amendment to
this Agreement and agrees that all Pledged Indebtedness listed on any
Pledge Amendment delivered to the Agent shall for all purposes
hereunder be considered Pledged Collateral; and
(e) Each Pledgor will cause all Pledged Shares consisting of
certificated equity membership interests to be or remain certificated
securities (to the extent permitted by applicable law). Each Pledgor
will cause all Pledged Shares consisting of uncertificated equity
interests to be or remain uncertificated.
7. Pledgor's Rights. As long as no Event of Default shall
have occurred and be continuing and until written notice shall be given to such
Pledgor in accordance with Section 8(a) hereof:
(a) Each such Pledgor shall have the right, from time to time,
to vote and give consents with respect to the Pledged Collateral, or
any part thereof for all purposes not inconsistent with the provisions
of this Agreement, the Credit Agreement or any Loan Documents;
provided, however, that no vote shall be cast, and no consent shall be
given
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or action taken, which would have the effect of impairing the position
or interest of the Agent in respect of the Pledged Collateral or which
would authorize, effect or consent to (unless and to the extent
permitted by the Credit Agreement or any other Loan Document or
consented to by the Required Lenders):
(i) the dissolution or liquidation, in whole or in
part, of a Pledged Entity;
(ii) the consolidation or merger of a Pledged
Entity with any other Person;
(iii) the sale, disposition or encumbrance of all
or substantially all of the assets of a Pledged Entity, except
for liens in favor of the Agent;
(iv) any change in the authorized number of shares,
the stated capital or the authorized share capital of a
Pledged Entity or the issuance of any additional shares of its
capital stock or equity membership interests, as applicable;
or
(v) the alteration of the voting rights with
respect to the capital stock or equity membership interests,
as applicable, of a Pledged Entity; and
(b) (i) Each such Pledgor shall be entitled, from time to
time, to collect, receive and retain for its own use all
dividends, distributions and interest paid in respect of the
Pledged Shares and Pledged Indebtedness to the extent not in
violation of the Credit Agreement or any other Loan Document
other than any and all: (A) dividends and interest paid or
payable in Pledged Shares, Pledged Indebtedness or other
securities or instruments distributed in respect of, or in
exchange for, any Pledged Collateral; (B) dividends and other
distributions paid or payable in Pledged Shares, Pledged
Indebtedness or other securities or instruments distributed in
respect of any Pledged Shares in connection with a partial or
total liquidation or dissolution or in connection with a
reduction of capital, capital surplus or paid-in capital of a
Pledged Entity; and (C) Pledged Shares, Pledged Indebtedness
or other securities or instruments paid, payable or otherwise
distributed, in respect of principal of, or in redemption of,
or in exchange for, any Pledged Collateral; provided, however,
that until actually paid all rights to such distributions
shall remain subject to the lien created by this Agreement;
and
(ii) all dividends, distributions and interest
(other than such dividends, distributions and interest as are
permitted to be paid to any Pledgor in accordance with Section
7(b)(i) hereof), whenever paid or made, shall be delivered to
the Agent to hold as Pledged Collateral and shall, if received
by any Pledgor, be received in trust for the benefit of the
Agent, be segregated from the other property or funds of such
Pledgor, and be forthwith delivered to the Agent as Pledged
Collateral in the same form as so received (with any necessary
endorsement).
8. Defaults and Remedies.
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(a) Upon the occurrence of an Event of Default and during the
continuation of such Event of Default, and concurrently with written
notice to each applicable Pledgor, the Agent (personally or through an
agent) is hereby authorized and empowered to transfer and register in
its name or in the name of its nominee the whole or any part of the
Pledged Collateral, to exchange certificates or instruments
representing or evidencing Pledged Collateral for certificates or
instruments of smaller or larger denominations, to exercise the voting
and all other rights as a holder with respect thereto, to collect and
receive all cash dividends, interest, principal and other distributions
made thereon, to sell in one or more sales after ten (10) days' notice
of the time and place of any public sale or of the time at which a
private sale is to take place (which notice each Pledgor agrees is
commercially reasonable) the whole or any part of the Pledged
Collateral and to otherwise act with respect to the Pledged Collateral
as though the Agent was the outright owner thereof, each Pledgor hereby
irrevocably constituting and appointing the Agent as the proxy and
attorney-in-fact of such Pledgor, with full power of substitution to do
so, and which appointment shall remain in effect until the Termination
Date; provided, however, the Agent shall not have any duty to exercise
any such right or to preserve the same and shall not be liable for any
failure to do so or for any delay in doing so. Any sale shall be made
at a public or private sale at the Agent's place of business, or at any
place to be named in the notice of sale, either for cash or upon credit
or for future delivery at such price as the Agent may deem fair, and
the Agent may be the purchaser of the whole or any part of the Pledged
Collateral so sold and hold the same thereafter in its own right free
from any claim of each Pledgor or any right of redemption. Each sale
shall be made to the highest bidder, but the Agent reserves the right
to reject any and all bids at such sale which, in its discretion, it
shall deem inadequate. Demands of performance and, except as otherwise
herein specifically provided for, notices of sale, advertisements and
the presence of property at sale are hereby waived and any sale
hereunder may be conducted by an auctioneer or any officer or agent of
the Agent.
(b) If, at the original time or times appointed for the sale
of the whole or any part of the Pledged Collateral, the highest bid, if
there be but one sale, shall be inadequate to discharge in full all the
Secured Obligations, or if the Pledged Collateral be offered for sale
in lots, if at any of such sales, the highest bid for the lot offered
for sale would indicate to the Agent, in its discretion, that the
proceeds of the sales of the whole of the Pledged Collateral would be
unlikely to be sufficient to discharge all the Secured Obligations, the
Agent may, on one or more occasions and in its discretion, postpone any
of said sales by public announcement at the time of sale or the time of
previous postponement of sale, and no other notice of such postponement
or postponements of sale need be given, any other notice being hereby
waived; provided, however, that any sale or sales made after such
postponement shall be after ten (10) days' notice to each applicable
Pledgor.
(c) If, at any time when the Agent shall determine to exercise
its right to sell the whole or any part of the Pledged Collateral
hereunder, such Pledged Collateral or the part thereof to be sold shall
not, for any reason whatsoever, be effectively registered under the
Securities Act of 1933, as amended (or any similar statute then in
effect) (the "Act"), the Agent may, in its discretion (subject only to
applicable requirements of law), sell such Pledged Collateral or part
thereof by private sale in such manner and under such
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circumstances as the Agent may deem necessary or advisable, but subject
to the other requirements of this Section 8, and shall not be required
to effect such registration or to cause the same to be effected.
Without limiting the generality of the foregoing, in any such event,
the Agent in its discretion (x) may, in accordance with applicable
securities laws, proceed to make such private sale notwithstanding that
a registration statement for the purpose of registering such Pledged
Collateral or part thereof could be or shall have been filed under said
Act (or similar statute), (y) may approach and negotiate with a single
possible purchaser to effect such sale, and (z) may restrict such sale
to a purchaser who is an accredited investor under the Act and who will
represent and agree that such purchaser is purchasing for its own
account, for investment and not with a view to the distribution or sale
of such Pledged Collateral or any part thereof. In addition to a
private sale as provided above in this Section 8, if any of the Pledged
Collateral shall not be freely distributable to the public without
registration under the Act (or similar statute) at the time of any
proposed sale pursuant to this Section 8, then the Agent shall not be
required to effect such registration or cause the same to be effected
but, in its discretion (subject only to applicable requirements of
law), may require that any sale hereunder (including a sale at auction)
be conducted subject to restrictions:
(i) as to the financial sophistication and ability
of any Person permitted to bid or purchase at any such sale;
(ii) as to the content of legends to be placed upon
any certificates representing the Pledged Collateral sold in
such sale, including restrictions on future transfer thereof;
(iii) as to the representations required to be made
by each Person bidding or purchasing at such sale relating to
that Person's access to financial information about each
applicable Pledgor and such Person's intentions as to the
holding of the Pledged Collateral so sold for investment for
its own account and not with a view to the distribution
thereof; and
(iv) as to such other matters as the Agent may, in
its discretion, deem necessary or appropriate in order that
such sale (notwithstanding any failure so to register) may be
effected in compliance with the Bankruptcy Code and other laws
affecting the enforcement of creditors' rights and the Act and
all applicable state securities laws.
(d) Each Pledgor recognizes that the Agent may be unable to
effect a public sale of any or all the Pledged Collateral and may be
compelled to resort to one or more private sales thereof in accordance
with Section 8(c) hereof. Each Pledgor also acknowledges that any such
private sale may result in prices and other terms less favorable to the
seller than if such sale were a public sale and, notwithstanding such
circumstances, agrees that any such private sale shall not be deemed to
have been made in a commercially unreasonable manner solely by virtue
of such sale being private. the Agent shall be under no obligation to
delay a sale of any of the Pledged Collateral for the period of time
necessary to permit the Pledged Entity to register such securities for
public
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sale under the Act, or under applicable state securities laws, even if
each applicable Pledgor and the Pledged Entity would agree to do so.
(e) Each Pledgor agrees to the maximum extent permitted by
applicable law that following the occurrence and during the continuance
of an Event of Default it will not at any time plead, claim or take the
benefit of any appraisal, valuation, stay, extension, moratorium or
redemption law now or hereafter in force in order to prevent or delay
the enforcement of this Agreement, or the absolute sale of the whole or
any part of the Pledged Collateral or the possession thereof by any
purchaser at any sale hereunder, and each Pledgor waives the benefit of
all such laws to the extent it lawfully may do so. Each Pledgor agrees
that it will not interfere with any right, power and remedy of the
Agent provided for in this Agreement or now or hereafter existing at
law or in equity or by statute or otherwise, or the exercise or
beginning of the exercise by the Agent of any one or more of such
rights, powers or remedies. No failure or delay on the part of the
Agent to exercise any such right, power or remedy and no notice or
demand which may be given to or made upon any Pledgor by the Agent with
respect to any such remedies shall operate as a waiver thereof, or
limit or impair the Agent's right to take any action or to exercise any
power or remedy hereunder, without notice or demand, or prejudice its
rights as against such Pledgor in any respect.
(f) Each Pledgor further agrees that a breach of any of the
covenants contained in this Section 8 will cause irreparable injury to
the Agent, that the Agent shall have no adequate remedy at law in
respect of such breach and, as a consequence, agrees that each and
every covenant contained in this Section 8 shall be specifically
enforceable against each Pledgor, and each Pledgor hereby waives and
agrees not to assert any defenses against an action for specific
performance of such covenants except for a defense that the Secured
Obligations are not then due and payable in accordance with the
agreements and instruments governing and evidencing such obligations or
that the Secured Obligations have been paid in full in cash.
9. Waiver. No delay on the Agent's part in exercising any
power of sale, lien, option or other right hereunder, and no notice or demand
which may be given to or made upon any Pledgor by the Agent with respect to any
power of sale, lien, option or other right hereunder, shall constitute a waiver
thereof, or limit or impair the Agent's right to take any action or to exercise
any power of sale, lien, option, or any other right hereunder, without notice or
demand, or prejudice the Agent's rights as against any Pledgor in any respect.
10. Assignment. the Agent may assign, indorse or transfer
any instrument evidencing all or any part of the Secured Obligations as provided
in, and in accordance with, the Credit Agreement, and the holder of such
instrument shall be entitled to the benefits of this Agreement.
11. Termination. Upon the payment in full of the Borrowers'
Obligations and the Secured Obligations and the expiration of the Lenders'
Commitments to make advances under the Credit Agreement, the Agent shall deliver
to each Pledgor the Pledged Collateral pledged by such Pledgor at the time
subject to this Agreement and all instruments of assignment
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executed in connection therewith, free and clear of the liens hereof and, except
as otherwise provided herein, all of such Pledgor's obligations hereunder shall
at such time terminate.
12. Lien Absolute. All rights of the Agent hereunder, and
all obligations of each Pledgor hereunder, shall be absolute and unconditional
irrespective of:
(a) any lack of validity or enforceability of the Credit
Agreement, any Loan Documents or any other agreement or instrument
governing or evidencing any Secured Obligations;
(b) any change in the time, manner or place of payment of,
or in any other term of, all or any part of the Secured Obligations, or
any other amendment or waiver of or any consent to any departure from
the Credit Agreement, any Loan Documents or any other agreement or
instrument governing or evidencing any Secured Obligations;
(c) any exchange, release or non-perfection of any other
Collateral, or any release or amendment or waiver of or consent to
departure from any guaranty, for all or any of the Secured Obligations;
(d) the insolvency of any Borrower or Pledgor; or
(e) any other circumstance which might otherwise constitute
a defense available to, or a discharge of, any Pledgor (other than the
payment in full of the Borrowers' Obligations and the Secured
Obligations and the expiration of the Lenders' Commitments to make
advances under the Credit Agreement).
13. Release. Each Pledgor consents and agrees that the Agent
may at any time, or from time to time, in its discretion:
(a) renew, extend or change the time of payment, and/or the
manner, place or terms of payment of all or any part of the Secured
Obligations; and
(b) exchange, release and/or surrender all or any of the
Collateral, or any part thereof, by whomsoever deposited, which is now
or may hereafter be held by the Agent in connection with all or any of
the Secured Obligations; all in such manner and upon such terms as the
Agent may deem proper, and without notice to or further assent from any
Pledgor, it being hereby agreed that each Pledgor shall be and remain
bound upon this Agreement, irrespective of the value or condition of
any of the Collateral, and notwithstanding any such change, exchange,
settlement, compromise, surrender, release, renewal or extension, and
notwithstanding also that the Secured Obligations may, at any time,
exceed the aggregate principal amount thereof set forth in the Credit
Agreement, or any other agreement governing any Secured Obligations.
Each Pledgor hereby waives notice of acceptance of this Agreement, and
also presentment, demand, protest and notice of dishonor of any and all
of the Secured Obligations, and promptness in commencing suit against
any party hereto or liable hereon, and in giving any notice to or of
making any claim or demand hereunder upon such Pledgor. No act or
omission of any kind on the Agent's part shall in any event affect or
impair this Agreement.
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14. Reinstatement. This Agreement shall remain in full force
and effect and continue to be effective should any petition be filed by or
against any Pledgor or any Pledged Entity for liquidation or reorganization,
should any Pledgor or any Pledged Entity become insolvent or make an assignment
for the benefit of creditors or should a receiver or trustee be appointed for
all or any significant part of any Pledgor's or a Pledged Entity's assets, and
shall continue to be effective or be reinstated, as the case may be, if at any
time payment and performance of the Secured Obligations, or any part thereof,
is, pursuant to applicable law, rescinded or reduced in amount, or must
otherwise be restored or returned by any obligee of the Secured Obligations,
whether as a "voidable preference", "fraudulent conveyance", or otherwise, all
as though such payment or performance had not been made. In the event that any
payment, or any part thereof, is rescinded, reduced, restored or returned, the
Secured Obligations shall be reinstated and deemed reduced only by such amount
paid and not so rescinded, reduced, restored or returned.
15. Miscellaneous.
(a) The Agent may execute any of its duties hereunder by or
through agents or employees and shall be entitled to advice of counsel
concerning all matters pertaining to its duties hereunder.
(b) Each Pledgor agrees to promptly reimburse the Agent for
actual out-of-pocket expenses, including, without limitation,
reasonable counsel fees, incurred by the Agent in connection with the
administration and enforcement of this Agreement.
(c) Neither the Agent, nor any of its respective officers,
directors, employees, agents or counsel shall be liable for any action
lawfully taken or omitted to be taken by it or them hereunder or in
connection herewith, except for its or their own gross negligence or
willful misconduct.
(d) THIS AGREEMENT SHALL BE BINDING UPON EACH PLEDGOR AND
ITS SUCCESSORS AND ASSIGNS (INCLUDING A DEBTOR-IN-POSSESSION ON BEHALF
OF SUCH PLEDGOR), AND SHALL INURE TO THE BENEFIT OF, AND BE ENFORCEABLE
BY, THE AGENT AND ITS SUCCESSORS AND ASSIGNS, AND SHALL BE GOVERNED BY,
AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NORTH CAROLINA APPLICABLE TO CONTRACTS MADE AND PERFORMED IN THAT
STATE, AND NONE OF THE TERMS OR PROVISIONS OF THIS AGREEMENT MAY BE
WAIVED, ALTERED, MODIFIED OR AMENDED EXCEPT IN WRITING DULY SIGNED FOR
AND ON BEHALF OF THE AGENT AND THE APPLICABLE PLEDGOR.
(e) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NORTH CAROLINA
OR OF THE UNITED STATES OF AMERICA LOCATED IN THE WESTERN DISTRICT OF
NORTH CAROLINA, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH
OF THE PLEDGORS AND THE AGENT CONSENTS, FOR ITSELF AND IN RESPECT OF
ITS PROPERTY, TO THE
11
NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. EACH OF THE PLEDGORS AND
THE AGENT IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO
THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS,
WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR
PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS AGREEMENT.
NOTWITHSTANDING THE FOREGOING: (1) THE AGENT SHALL HAVE THE RIGHT TO
BRING ANY ACTION OR PROCEEDING AGAINST ANY PLEDGOR OR ITS PROPERTY IN
THE COURTS OF ANY OTHER JURISDICTION THE AGENT DEEMS NECESSARY OR
APPROPRIATE IN ORDER TO REALIZE ON THE COLLATERAL OR OTHER SECURITY FOR
THE OBLIGATIONS AND (2) EACH OF THE PARTIES HERETO ACKNOWLEDGES THAT
ANY APPEALS FROM THE COURTS DESCRIBED IN THE IMMEDIATELY PRECEDING
SENTENCE MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE THOSE
JURISDICTIONS.
(f) EACH PLEDGOR HEREBY WAIVES PERSONAL SERVICE OF ANY AND ALL
PROCESS UPON IT AND CONSENTS THAT ALL SUCH SERVICE OF PROCESS MAY BE
MADE BY REGISTERED MAIL (RETURN RECEIPT REQUESTED) DIRECTED TO SUCH
PLEDGOR AT ITS ADDRESS SET FORTH HEREIN AND SERVICE SO MADE SHALL BE
DEEMED TO BE COMPLETED FIVE (5) DAYS AFTER THE SAME SHALL HAVE BEEN SO
DEPOSITED IN THE U.S. MAILS POSTAGE PREPAID. NOTHING CONTAINED HEREIN
SHALL AFFECT THE RIGHT OF AGENT TO SERVE LEGAL PROCESS BY ANY OTHER
MANNER PERMITTED BY LAW.
(g) EACH PLEDGOR AND THE AGENT IRREVOCABLY WAIVE THEIR
RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION
BASED UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE OTHER
LOAN DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, IN
ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY
OF THE PARTIES AGAINST ANY OTHER PARTY OR ANY AGENT-RELATED PERSON,
PARTICIPANT OR ASSIGNEE, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT
CLAIMS, OR OTHERWISE. EACH PLEDGOR AND THE AGENT AGREE THAT ANY SUCH
CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A
JURY. WITHOUT LIMITING THE FOREGOING, THE PARTIES FURTHER AGREE THAT
THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF
THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH
SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY
OF THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS OR ANY PROVISION HEREOF
OR THEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT AND THE OTHER
LOAN DOCUMENTS.
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16. Severability. If for any reason any provision or
provisions hereof are determined to be invalid and contrary to any existing or
future law, such invalidity shall not impair the operation of or effect those
portions of this Agreement which are valid.
17. Notices. Except as otherwise provided herein, whenever
it is provided herein that any notice, demand, request, consent, approval,
declaration or other communication shall or may be given to or served upon any
of the parties by any other party, or whenever any of the parties desires to
give or serve upon any other a communication with respect to this Agreement,
each such notice, demand, request, consent, approval, declaration or other
communication shall be in writing and either shall be delivered in person or
sent by registered or certified mail, return receipt requested, with proper
postage prepaid, or by facsimile transmission and confirmed by delivery of a
copy by personal delivery or United States Mail as otherwise provided herein to
the applicable party's address set forth below its signature hereto or at such
other address as may be substituted by notice given as herein provided. The
giving of any notice required hereunder may be waived in writing by the party
entitled to receive such notice. Every notice, demand, request, consent,
approval, declaration or other communication hereunder shall be deemed to have
been duly served, given or delivered (a) upon the earlier of actual receipt and
four (4) Business Days after deposit in the United States Mail, registered or
certified mail, return receipt requested, with proper postage prepaid, (b) upon
transmission, when sent by telecopy or other similar facsimile transmission
(with such telecopy or facsimile promptly confirmed by delivery of a copy by
personal delivery or United States Mail as otherwise provided in this Section
17, (c) one (1) Business Day after deposit with a reputable overnight courier
with all charges prepaid, or (d) when delivered, if hand-delivered by messenger.
Failure or delay in delivering copies of any notice, demand, request, consent,
approval, declaration or other communication to the persons designated above to
receive copies shall in no way adversely affect the effectiveness of such
notice, demand, request, consent, approval, declaration or other communication.
18. Section Titles. The Section titles contained in this
Agreement are and shall be without substantive meaning or content of any kind
whatsoever and are not a part of the agreement between the parties hereto.
19. Counterparts. This Agreement may be executed in any
number of counterparts, which shall, collectively and separately, constitute one
agreement.
20. Benefit of the Agent. All security interests granted or
contemplated hereby shall be for the benefit of the Agent, and all proceeds or
payments realized from the Pledged Collateral in accordance herewith shall be
applied to the Secured Obligations.
[Signature Pages Follows]
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the date first written above.
PLEDGORS:
ENPRO INDUSTRIES, INC.
By: /s/ Xxxxxx Xxxxxx
----------------------------------------
Xxxxxx Xxxxxx, Vice President and
Assistant Secretary
Address for Notices:
0000 Xxxxxxxx Xxxx.
Xxxxxxxxx, XX 00000-0000
Fax: 000-000-0000
Attention: _______________
COLTEC INDUSTRIES INC
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------------
Xxxxx X. Xxxxxxx, Vice President and
Treasurer
Address for Notices:
0000 Xxxxxxxx Xxxx.
Xxxxxxxxx, XX 00000-0000
Fax: 000-000-0000
Attention: _______________
XXXXXXX INTERNATIONAL INC.
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------------
Xxxxx X. Xxxxxxx, Vice President and
Treasurer
Address for Notices:
0000 Xxxxxxxx Xxxx.
Xxxxxxxxx, XX 00000-0000
Fax: 000-000-0000
Attention: _______________
XXXXXXX OVERSEAS CORPORATION
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------------
Xxxxx X. Xxxxxxx, Vice President and
Treasurer
Address for Notices:
0000 Xxxxxxxx Xxxx.
Xxxxxxxxx, XX 00000-0000
Fax: 000-000-0000
Attention: _______________
GLACIER XXXXXXX BEARINGS, INC.
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------------
Xxxxx X. Xxxxxxx, Vice President and
Treasurer
Address for Notices:
000 Xxx Xxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Fax: 000-000-0000
Attention: _______________
XXXXXXX SEALING TECHNOLOGIES LLC
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------------
Xxxxxxx X. Xxxxxx, President
Address for Notices:
0000 Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Fax: 000-000-0000
Attention: _______________
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COLTEC INTERNATIONAL SERVICES CO.
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------------
Xxxxx X. Xxxxxxx, Vice President and
Treasurer
Address for Notices:
c/o Coltec Industries, Inc.
0000 Xxxxxxxx Xxxx.
Xxxxxxxxx, XX 00000-0000
Fax: 000-000-0000
Attention: _______________
AGENT:
BANK OF AMERICA, N.A.
By: /s/ Xxxxx X. Xxxxxxxx
----------------------------------------
Xxxxx X. Xxxxxxxx
Address for Notices:
Atlanta Plaza Building
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000-0000
Fax:
Attention:
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