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EXHIBIT 4.5
CONSENT AND AGREEMENT WITH RESPECT TO CREDIT AGREEMENT
CONSENT AND AGREEMENT WITH RESPECT TO CREDIT AGREEMENT (this "Consent"), dated
as of March_31, 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
Consent, 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 Company, the Canadian Borrower, the Banks, the Documentation
Agent, the Syndication Agent and the Administrative Agent have previously
entered into the Fifth Amendment to Credit Agreement to provide, among other
things, for the issuance of the New Senior Notes, the New Senior Exchange Notes,
the TIDES and the TIDES Mirror Debentures and the extension of the TIDES
Guarantee, all in accordance with the terms and subject to the conditions set
forth in the Credit Agreement;
WHEREAS, the Credit Agreement requires the approval of the Required Banks with
respect to the (i) terms of the respective issuances of New Senior Notes and
TIDES and (ii) certain amendments (including amendments and restatements) of
certain Credit Documents to provide for the sharing of security with the New
Senior Notes and the New Senior Exchange Notes;
WHEREAS, subject to the terms and conditions set forth below, the parties
hereto have agreed as follows; NOW, THEREFORE, it is agreed:
New Senior Notes and New Senior Exchange Notes.
The Banks hereby acknowledge that they have received (x) a preliminary
Offering Memorandum, dated March 31, 1998, with respect to the New Senior Notes
(the "New Senior Notes Preliminary Offering Memorandum") and (y) a term sheet
containing a range of pricing information for the New Senior Notes (the "New
Senior Notes Term Sheet"). Notwithstanding anything to the contrary contained in
the Credit Agreement or the Fifth Amendment to Credit Agreement, the Banks
hereby approve such documentation and agree that, so long as the
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final documentation for the New Senior Notes is substantially consistent with
the New Senior Notes Preliminary Offering Memorandum and the New Senior Notes
Term Sheet, such documentation shall require no further approval of the Required
Banks (although the Administrative Agent shall retain the right to approve the
final form of any documentation relating to the New Senior Notes). So long as
the requirements of the immediately preceding sentence are satisfied, no further
approval on the part of the Required Banks (whether pursuant to Section
9.04(xxi) of the Credit Agreement or otherwise) shall be required with respect
to the issuance of or documentation for the New Senior Notes.
TIDES, TIDES Mirror Debentures and TIDES Guarantee.
The Banks hereby acknowledge that they have received (x) a preliminary
Offering Memorandum, dated March 31, 1998, with respect to the TIDES (the "TIDES
Preliminary Offering Memorandum") and (y) a term sheet containing a range of
pricing information for the TIDES (the "TIDES Term Sheet"). Notwithstanding
anything to the contrary contained in the Credit Agreement or the Fifth
Amendment to Credit Agreement, the Banks hereby approve such documentation and
agree that, so long as the final documentation for the TIDES, the TIDES Mirror
Debentures and the TIDES Guarantee is substantially consistent with the TIDES
Preliminary Offering Memorandum and the TIDES Term Sheet, such documentation
shall require no further approval of the Required Banks (although the
Administrative Agent shall retain the right to approve the final form of any
documentation relating to the TIDES, the TIDES Mirror Debentures and the TIDES
Guarantee). So long as the requirements of the immediately preceding sentence
are satisfied, no further approval on the part of the Required Banks (whether
pursuant to Section 9.04(xxii) or 9.13 of the Credit Agreement or otherwise)
shall be required with respect to the issuance of or documentation for the
TIDES, the TIDES Mirror Debentures or the TIDES Guarantee.
2. Notwithstanding anything to the contrary set forth in the Credit Agreement,
the Trust may issue TIDES and trust common securities to the Company so long as
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 $200,000,000 (it being expressly understood and agreed that such
gross proceeds are to be applied in the manner provided in the Credit Agreement
(including without limitation Section 3.03)). In furtherance of the foregoing,
it is hereby agreed that the amount "$150,000,000" appearing in Section
9.13(a)(viii) of the Credit Agreement is hereby changed to "$200,000,000".
Security Documents.
The Banks hereby acknowledge that they have received the form of Amended
and Restated Company Pledge Agreement (in substantially final form) providing
for the sharing of security with the New Senior Notes and the New Senior
Exchange
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Notes and certain intercreditor arrangements relating thereto. The Banks hereby
consent to the execution and delivery by the Collateral Agent of the Amended and
Restated Company Pledge Agreement in the form furnished to the Banks prior to
the Consent Effective Date (with such changes, which are not adverse to the
Banks in any material respect, as may be agreed to by the Administrative Agent
and Collateral Agent). The Banks hereby further agree that the Administrative
Agent and/or Collateral Agent, as appropriate, may enter into such amendments
and restatements of, or amendments to, the other Security Documents so long as
same are in form approved by the Administrative Agent and are reasonably
consistent with the changes made in the Amended and Restated Company Pledge
Agreement in the form furnished to the Banks prior to the Consent Effective
Date. The Banks further consent to the Administrative Agent and Collateral Agent
taking all such other actions as may be deemed necessary or desirable by them in
furtherance of the foregoing (which shall include, without limitation, executing
such ancillary documentation or agreements as may be deemed necessary or
desirable by the Administrative Agent and/or Collateral Agent). So long as the
foregoing requirements are satisfied, the Banks hereby acknowledge and agree
that no further consent of the Banks shall be required in connection with the
amendments (including amendments and restatements) to the various Security
Documents and the taking of the related actions described above, in each case in
connection with the modifications thereto to be effected in connection with the
issuance of New Senior Notes and New Senior Exchange Notes. Without limiting the
foregoing, the requirements of Section 9.04(xxi) shall be deemed satisfied with
respect to any amended (including any amended and restated) Security Documents
executed and delivered in accordance with the foregoing provision.
Miscellaneous.
In order to induce the Banks to enter into this Consent, each of the
Company and the Canadian Borrower hereby represent and warrant that (i) all
representations and warranties contained in Section 7 of the Credit Agreement
are true and correct in all material respects on and as of the Consent Effective
Date (as defined below) after giving effect to the Consent (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 Consent
Effective Date after giving effect to this Consent.
This Consent is limited to the approvals and other matters as specified
herein and shall not constitute a modification, acceptance or waiver of any
other provision of the Credit Agreement or any other Credit Document.
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
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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 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.
This Consent shall become effective on the date (the "Consent 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.
From and after the Consent 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 modified 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_______________________
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
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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
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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:
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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.
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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:
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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:
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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
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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___________________________
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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___________________________
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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.
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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