Exhibit 4.12
[CONFORMED COPY]
SEVENTH CONSENT
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SEVENTH CONSENT (the "Consent"), dated as of October 27, 1993, among
COLTEC INDUSTRIES INC (the "Company") and the financial institutions party to
the Credit Agreement referred to below (the "Banks"). All capitalized terms
used herein and not otherwise defined shall have the respective meanings
provided such terms in the Credit Agreement.
W I T N E S S E T H :
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WHEREAS, the Company, the Banks, Bankers Trust Company, Chemical Bank
(as successor by merger with Manufacturers Hanover Trust Company), Barclays Bank
PLC, New York Branch, and Credit Lyonnais New York Branch, as Agents, and
Bankers Trust Company, as Administrative Agent, are parties to a Credit
Agreement, dated as of March 24, 1992, as amended to the date hereof (as so
amended, the "Credit Agreement");
WHEREAS, Coltec Holdings Inc., a Delaware corporation ("Holdings"),
owns, prior to the consummation of the Reorganization described below, 35.8% of
the issued and outstanding shares of common stock of the Company (the "Coltec
Shares");
WHEREAS, the Company, Holdings and the institutions and individuals
who, collectively, own 100% of the issued and outstanding shares of capital
stock of Holdings (the "Holdings Shares") (collectively, "Holdings
Shareholders"), are parties to the Reorganization Agreement, dated as of October
13, 1993 (the "Reorganization Agreement"), whereby each Holdings Shareholder
proposes to exchange each of its Holdings Shares for 2,483 shares of common
stock of the Company issued to such Holdings Shareholder (the "New Coltec
Shares") (such exchange, the "Reorganization");
WHEREAS, immediately after giving effect to the Reorganization,
Holdings will become a direct Wholly-Owned Subsidiary of the Company;
WHEREAS, it is a condition precedent to the Reorganization Agreement
that the Company shall have received the necessary consents under the Credit
Agreement;
WHEREAS, in order to permit the Reorganization, the Banks are willing
to grant the consent described herein, subject to and on the terms and
conditions set forth herein;
NOW, THEREFORE, it is agreed:
I. CONSENT UNDER THE CREDIT AGREEMENT
1. By its execution hereof, each Bank hereby consents to the
Reorganization on the terms and conditions set forth in the Reorganization
Agreement so long as (and this consent shall only be effective if the following
clauses (i)-(iii) are complied with):
(i) the Reorganization Agreement shall not have been amended
without the consent of the Required Banks, and the Reorganization shall be
effected in accordance with the Reorganization Agreement and without the
waiver of any conditions with respect thereto set forth in the
Reorganization Agreement;
(ii) the Agents shall have received an officers' certificate from
the Company whereby the Company represents and warrants to the Banks that
at the time of the Reorganization, Holdings had (a) no significant assets
other than the Coltec Shares and cash or liquid securities, free and clear
of any encumbrances (such cash or liquid securities, "Holdings Cash"), in
an amount equal to at least $26,733,000, before payment of expenses
incurred by the Company or Holdings in connection with the Reorganization
and less any amounts paid as a result of the non-contingent liabilities
described in clause (b) hereof; (b) no non-contingent liabilities, other
than liabilities not in excess of $2,000,000 primarily required to be paid
upon delivery of previously untendered shares relating to the merger of
Colt Transition Inc. and the Company on June 10, 1988 (the "Non-Contingent
Liability Amount"); and (c) no contingent liabilities which, in the
aggregate with all contingent liabilities of Holdings, are reasonably
likely to exceed $25,100,000; and
(iii) after giving effect to the Reorganization, the capital
stock of Holdings shall be pledged to the Collateral Agent for the benefit
of the Secured Creditors in accordance with the Company Pledge Agreement
and the certificates representing such stock,
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together with stock powers duly executed in blank, shall be delivered to
the Collateral Agent.
Each Bank hereby agrees that, notwithstanding anything to the contrary
contained in the Credit Agreement, and in addition to any other repayments or
repurchases of Existing Senior Debentures permitted by the Credit Agreement, the
Company shall be permitted to repay and/or repurchase Existing Senior Debentures
at an aggregate purchase price not in excess of the amount of Holdings Cash held
by Holdings immediately after giving effect to the Reorganization, less the Non-
Contingent Liability Amount and the amount of fees and expenses paid by the
Company or Holdings in connection with the Reorganization.
II. GENERAL PROVISIONS
2. In order to induce the Banks to enter into this Consent, the
Company hereby (i) makes each of the representations, warranties and agreements
contained in Section 7 of the Credit Agreement, (ii) represents and warrants
that there exists no Default or Event of Default, in each case on the Consent
Effective Date both before and after giving effect to this Consent and (iii)
makes each of the representations and warranties required to be made pursuant to
Section 1(ii) hereof.
3. This Consent 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.
4. This Consent 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.
5. THIS CONSENT 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.
6. This Consent shall become effective on the date (the "Consent
Effective Date") when the (i) Company and the Required Banks shall have signed a
copy hereof (whether the same or different copies) and shall have delivered
(including
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by way of telecopier) the same to the Administrative Agent at the Notice Office
and (ii) each of the respective conditions precedent set forth in the
Reorganization Agreement shall have been satisfied and not waived (unless the
Required Banks also waive such conditions) immediately prior to the consummation
of the Reorganization.
7. From and after the effective date of this Consent as set forth in
Section 6 hereof, all references in the Credit Agreement and the other Credit
Documents to the Credit Agreement shall be deemed to be references to such
Credit Agreement as modified hereby.
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IN WITNESSES WHEREOF, each of the parties hereto has caused a
counterpart of this Consent to be duly executed and delivered as of the date
first above written.
COLTEC INDUSTRIES INC
By /s/ Paul G. Schoen
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Title: Senior Vice President
BANKERS TRUST COMPANY,
Individually, as Agent, as
Mortgagee and as
Administrative Agent
By /s/ Mary Kay Coyle
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Title: Vice President
CHEMICAL BANK
(as successor by merger with
Manufacturers Hanover Trust
Company), Individually, and
as Agent
By /s/ Christopher G. Mathon
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Title: Vice President
BARCLAYS BANK PLC, NEW YORK
BRANCH, Individually, and
as Agent
By /s/ John Giannone
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Title: Senior Vice President
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CREDIT LYONNAIS NEW YORK
BRANCH, Individually, and
as Agent
By /s/ Sebestian Rocco
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Title: Vice President
CREDIT LYONNAIS CAYMAN ISLAND
BRANCH
By /s/ Sebestian Rocco
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Title: Authorized Signature
THE BANK OF MONTREAL
By /s/ Glen A. Pole
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Title: Director
THE BANK OF NEW YORK
By /s/ William A. Kerr
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Title: Vice President
THE BANK OF TOKYO TRUST
COMPANY
By
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Title:
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BANQUE FRANCAISE DU COMMERCE
EXTERIEUR
By /s/ David S. Kopp
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Title: Vice President
BANQUE PARIBAS
By
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Title:
By
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Title:
THE CHASE MANHATTAN BANK, N.A.
By /s/ George Hansen
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Title: Vice President
COMMONWEALTH BANK OF AUSTRALIA
By
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Title:
EATON VANCE PRIME RATE
RESERVES
By /s/ Jeffrey S. Garner
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Title: Vice President
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THE FUJI BANK, LIMITED,
New York Branch
By
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Title:
GIROCREDIT BANK, New York
Branch
By
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Title:
THE INDUSTRIAL BANK OF JAPAN,
LIMITED, New York Branch
By /s/ Junri Oda
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Title: Senior Vice President
& Senior Manager
THE LONG-TERM CREDIT BANK
OF JAPAN, LIMITED,
NEW YORK BRANCH
By
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Title:
THE MITSUBISHI TRUST AND
BANKING CORPORATION
By
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Title:
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THE NIPPON CREDIT BANK, LTD.,
New York Branch
By /s/ Michael A. Monteleone
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Title: Assistant Vice
President
UNION BANK OF FINLAND LIMITED,
Grand Cayman Branch
By
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Title:
By
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Title:
VAN KAMPEN MERRITT PRIME
RATE INCOME TRUST
By /s/ Jeffrey W. Maillet
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Title: Vice President &
Portfolio Manager
WESTPAC BANKING CORPORATION
Grand Cayman Branch
By
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Title:
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PRIME INCOME TRUST
By
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Title:
ARAB BANKING CORP.
By /s/ Louise Bilbro
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Title: Vice President
BAHRAIN MIDDLE EAST BANK E.C.
New York Agency
By /s/ Audrey Brown
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Title: Assistant Vice
President
By /s/ Matthew Kuruvilla
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Title: General Manager &
Senior Vice President
BANK OF IRELAND
By /s/ Randolph M. Ross
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Title: Vice President
THE BANK OF NOVA SCOTIA
By /s/ Stephen Lockhart
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Title: Vice President
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BANK OF SCOTLAND
By /s/ Catherine M. Oniffrey
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Title: Vice President
MERRILL LYNCH PRIME FUND INC.
By /s/ John R. Lennon
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Title: Authorized Signatory
MERRILL LYNCH PRIME RATE PORTFOLIO
BY MERRILL LYNCH INVESTMENT
MANAGEMENT, INC., as investment
advisor
By /s/ John R. Lennon
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Title: Authorized Signatory
PROTECTIVE LIFE INSURANCE
COMPANY
By /s/ Mark K. Okada
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Title: Principal
RESTRUCTURED OBLIGATION BACKED
BY SENIOR ASSETS B.V.
By /s/ Stephen M. Alfieri
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Title: Vice President
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RYOSHIN LEASING (USA) INC.
By
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Title:
STICHTING RESTRUCTURED
OBLIGATIONS BACKED BY SENIOR
ASSETS 2 (ROSA2)
(Chancellor)
By /s/ Stephen M. Alfieri
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Title: Vice President
TOKYO CITY FINANCE (ASIA)
LIMITED
By
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Title:
TOYO TRUST AND BANKING
COMPANY, LTD. New York Branch
By
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Title:
TRAVELERS INSURANCE COMPANY
By
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Title:
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