EXHIBIT 10.36
CONSENT AND AMENDMENT NO. 4 TO AMENDED AND RESTATED
REFINANCING CREDIT AGREEMENT
THIS CONSENT AND AMENDMENT NO. 4 (this "Amendment") is dated
as of September 17, 2001, and amends the Amended and Restated Refinancing Credit
Agreement, dated as of November 19, 1999, by and among WESTINGHOUSE AIR BRAKE
TECHNOLOGIES CORPORATION (formerly known as Westinghouse Air Brake Company)
("Borrower") and THE GUARANTORS FROM TIME TO TIME PARTY THERETO ("Guarantors")
and THE BANKS FROM TIME TO TIME PARTY THERETO ("Banks") and LASALLE BANK
NATIONAL ASSOCIATION, as bookrunner and co-syndication agent ("Agent"), THE
CHASE MANHATTAN BANK, as administrative agent, and THE BANK OF NEW YORK, as
co-syndication agent, MELLON BANK, N.A., as documentation agent, LASALLE BANK
NATIONAL ASSOCIATION, as an issuing bank, ABN AMRO BANK N.V., as an issuing
bank, and CHASE MANHATTAN BANK USA, N.A. (successor in interest to Chase
Manhattan Bank Delaware), as an issuing bank, as amended by Amendment No. 1 to
Amended and Restated Refinancing Credit Agreement, dated as of November 16,
2000, Amendment No. 2 to Amended and Restated Refinancing Credit Agreement,
dated as of March 30, 2001, and Amendment No. 3 to Amended and Restated
Refinancing Credit Agreement, dated as of July 18, 2001 (as so amended, the
"Credit Agreement").
BACKGROUND
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Borrower and certain of its Subsidiaries propose to sell the
assets described on Schedule 1.1(C) hereto in accordance with the terms of that
Purchase Agreement, dated as of July 24, 2001, among Borrower and General
Electric Company, acting through its GE Transportation Systems Business (the "GE
Sale");
The parties hereto desire to (i) consent to the GE Sale, and
(ii) accordingly amend the Credit Agreement.
OPERATIVE PROVISIONS
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NOW THEREFORE, the parties hereto, in consideration of their
mutual covenants and agreements herein contained, incorporating the
above-defined terms herein, and intending to be legally bound hereby agree as
follows:
ARTICLE I
CONSENT AND AMENDMENTS
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1.01 Defined Terms; References. Terms not otherwise defined in this
Amendment shall have the respective meanings ascribed to them in the Credit
Agreement. As used in this Amendment, "including" is not a term of limitation
and means "including without limitation." Each reference to "hereof,"
"hereunder," "herein," and "hereby" and similar references contained in the
Credit Agreement and each reference to "this Agreement" and similar references
contained in the Credit Agreement shall, on and after the date hereof, refer to
the Credit Agreement as amended hereby.
1.02 New Definitions. Section 1.1 [Definitions] of the Credit
Agreement is hereby amended to add the following definitions in the appropriate
alphabetical order in such section:
GAIN FROM THE GE SALE shall mean the amount in Dollars of the
gain to Borrower and its Subsidiaries, on a consolidated basis, arising from the
GE Sale after the payment of all taxes arising in connection therewith, as
reported (or to be reported) on the financial statements of Borrower and its
Subsidiaries and determined in accordance with GAAP.
GE SALE shall mean that sale, to be made pursuant to the terms
of the Purchase Agreement, dated as of July 24, 2001, among Borrower and General
Electric Company, acting through its GE Transportation Systems Business, of the
assets described on Schedule 1.1(C).
1.03 Consent under and Amendment of Credit Agreement.
(a) CONSENT. The Banks hereby consent to the GE Sale.
(b) AMENDMENT TO SECTION 8.2.6(a)(i). Clause (i) of Section 8.2.6(a)
is hereby amended and restated in its entirety as follows:
(i) Sales, transfers, and other dispositions made or to be
made pursuant to the GE Sale, and transactions involving the
sale or lease of inventory in the ordinary course of business;
(c) AMENDMENT TO SECTION 8.2.6(b). Section 8.2.6(b) of the Credit
Agreement is hereby amended and restated in its entirety as follows:
(b) So long as any of the Indentures remain in effect and
notwithstanding any other term hereof, but in order to permit
Borrower to effect Borrower's tax planning objectives and
achieve the synergistic objectives of the Merger and for other
general corporate purposes, the aggregate net book value of
the assets of all Persons that were Subsidiaries of
MotivePower directly prior to the Closing Date (each a
"MotivePower Subsidiary") minus the aggregate net book value
of the assets of each MotivePower Subsidiary which are sold
pursuant to the GE Sale shall at no time decrease by an amount
in excess of 10% of the aggregate net book value of the assets
of all MotivePower Subsidiaries after giving effect to the GE
Sale.
(d) AMENDMENT TO SECTION 9.1.12. Section 9.1.12 of the Credit
Agreement is hereby amended and restated in its entirety as follows:
9.1.12 CESSATION OF BUSINESS.
The Borrower and its Subsidiaries taken as a whole cease to
conduct any material portion of their business as currently
conducted or as contemplated, except (i) as expressly
permitted under Section 8.2.5 or (ii) as may occur as a result
of the GE Sale;
(e) SCHEDULE 1.1(C). Schedule 1.1(C) to this Amendment hereby is
Schedule 1.1(C) to the Credit Agreement.
(f) DEFINITION OF CASH FLOW. The definition of "Cash Flow" as set
forth in the Credit Agreement is hereby amended and restated in its entirety as
follows:
CASH FLOW for any period of determination shall mean,
without recognition of the Gain from the GE Sale and without
recognition of any loss or expense resulting from
write-downs of tangible assets or the creation of one-time
reserves to recognize the impairment of assets (but solely to
the extent that any such write-downs or reserves are not
considered noncash charges to net income) required or
permitted by GAAP and recorded during the fiscal year of the
GE Salein an aggregate amount not to exceed the lesser of
$50,000,000 or the Gain from the GE Sale: (i) the sum of net
income, depreciation, amortization, other noncash charges to
net income, interest expense (including the interest component
of payments made in connection with capitalized leases,
synthetic leases, and the like), income tax expense, and the
actual and direct costs and expenses of and restructuring
charges associated with the Merger incurred by Borrower and
its Subsidiaries in 1999 and 2000 up to an amount equal to
$47,060,000 for Borrower's fiscal year ending in 1999 and up
to an amount equal to $25,000,000 for Borrower's fiscal year
ending in 2000 minus (ii) noncash credits to net income and
extraordinary income, in each case of the Borrower and its
Subsidiaries for such period determined and consolidated in
accordance with GAAP, other than as set forth above."
(g) DEFINITION OF CONSOLIDATED TANGIBLE NET WORTH. The definition of
"Consolidated Tangible Net Worth" as set forth in the Credit Agreement is hereby
amended and restated in its entirety as follows:
CONSOLIDATED TANGIBLE NET WORTH shall mean as of any
date of determination without duplication, total stockholders'
equity (determined and consolidated in accordance with GAAP)
adjusted as follows (i) less intangible assets of the Borrower
and its Subsidiaries, as of such date of determination,
determined and consolidated in accordance with GAAP, (ii) less
the Gain from the GE Sale, (iii) plus the amount of any
write-downs of tangible assets, plus the amount of any
one-time reserves created to recognize the impairment of
assets, in each case of any of Borrower or its Subsidiaries
required or permitted by GAAP and recorded during the fiscal
year of the GE Sale in an aggregate amount not to exceed the
lesser of (A) $50,000,000 or (B) the Gain from the GE Sale.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
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As of the date hereof, the Loan Parties, jointly and
severally, represent and warrant to the Agent and each of the Banks as follows:
2.01 The execution and delivery by the Loan Parties of this Amendment,
the consummation by the Loan Parties of the transactions contemplated by the
Credit Agreement as amended hereby, and the performance by each Loan Party of
its respective obligations hereunder and thereunder have been duly authorized by
all necessary corporate proceedings, if any, on the part of each Loan Party. On
the date of Borrower's execution hereof, there are no set-offs, claims,
defenses, counterclaims, causes of action, or deductions of any nature against
any of the Obligations.
2.02 This Amendment has been duly and validly executed and delivered by
each Loan Party and constitutes, and the Credit Agreement as amended hereby
constitutes, the legal, valid and binding obligations of each Loan Party
enforceable in accordance with the terms hereof and thereof, except as the
enforceability of this Amendment or the Credit Agreement as amended hereby may
be limited by bankruptcy, insolvency or other similar laws of general
application affecting the enforcement of creditors' rights or by general
principles of equity limiting the availability of equitable remedies.
2.03 Neither the execution and delivery of this Amendment nor
consummation of the transactions contemplated hereby or by the Credit Agreement
as amended hereby nor the consummation and performance of the GE Sale nor
compliance with the terms and provisions of the Credit Agreement as amended
hereby, by any of the Loan Parties, will (a) violate any Law, (b) conflict with
or result in a breach of or a default under the articles or certificate of
incorporation or bylaws or similar organizational documents of any Loan Party or
any material agreement or instrument to which any Loan Party is a party or by
which any Loan Party or any of their respective properties (now owned or
hereafter acquired) may be subject or bound, including the Indentures, (c)
require any consent or approval of any Person or require a mandatory prepayment
or any other payment under the terms of any material agreement or instrument to
which any Loan Party is a party or by which any Loan Party or any of their
respective properties (now owned or hereafter acquired) may be subject or bound,
including the Indentures, (d) result in the creation or imposition of any Lien
upon any property (now owned or hereafter acquired) of any Loan Party, or (e)
require any authorization, consent, approval, license, permit, exemption or
other action by, or any registration, qualification, designation, declaration or
filing with, any Official Body.
2.04 After giving effect to the amendments and consents made herein:
(i) no Event of Default under and as defined in the Credit Agreement has
occurred and is continuing, and (ii) the representations and warranties of each
of Borrower and the other Loan Parties contained in the Credit Agreement and the
other Loan Documents are true and correct on and as of the date hereof with the
same force and effect as though made on such date, except to the extent that any
such representation or warranty expressly relates solely to a previous date.
ARTICLE III
EFFECT, EFFECTIVENESS, CONSENT OF GUARANTORS
--------------------------------------------
3.01 Effectiveness. This Amendment shall become effective as of the
date hereof on the date that Agent shall have received from each of the
Borrower, the Loan Parties, and the Required Banks a counterpart hereof signed
by such party or facsimile or other written confirmation (in form satisfactory
to Agent) that such party has signed a counterpart hereof. Within forty-five
(45) days of the date hereof, each of the Loan Parties shall have delivered to
the Agent a certificate signed by the Secretary or Assistant Secretary of such
Loan Party certifying as to the due authorization of such Loan Party to enter
into this Amendment and of the officer executing this Amendment on its behalf.
3.02 Amendment. The Credit Agreement is hereby amended in accordance
with the terms hereof, and this Amendment and the Credit Agreement shall
hereafter be one agreement and any reference to the Credit Agreement in any
document, instrument, or agreement shall hereafter mean and include the Credit
Agreement as amended hereby. In the event of irreconcilable inconsistency
between the terms or provisions hereof and the terms or provisions of the Credit
Agreement, the terms and provisions hereof shall control.
3.03 Joinder of Guarantors. Each of the Guarantors hereby joins in this
Amendment to evidence its consent hereto, and each Guarantor hereby reaffirms
its obligations set forth in the Credit Agreement, as hereby amended, and in
each Guaranty Agreement and each other Loan Document given by it in connection
therewith.
ARTICLE IV
MISCELLANEOUS
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4.01 Credit Agreement. Except as specifically amended by the provisions
hereof, the Credit Agreement and all other Loan Documents shall remain in full
force and effect and are hereby ratified and confirmed by the parties hereto.
4.02 Counterparts, Telecopy Signatures. This Amendment may be signed in
any number of counterparts each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument; and, delivery of
executed signature pages hereof by telecopy transmission from one party to
another shall constitute effective and binding execution and delivery of this
Amendment by such party.
4.03 Governing Law. This Amendment shall be governed by and construed
and enforced in accordance with the laws of the Commonwealth of Pennsylvania
without regard to its conflict of laws principles.
4.04 Severability. If any provision of this Amendment, or the
application thereof to any party hereto, shall be held invalid or unenforceable,
such invalidity or unenforceability shall not affect any other provisions or
applications of this Amendment which can be given effect without the invalid and
unenforceable provision or application, and to this end the parties hereto agree
that the provisions of this Amendment are and shall be severable.
4.05 Banks' Consent. Each Bank, by its execution hereof, hereby
consents to this Amendment pursuant Section 11.1 of the Credit Agreement.
[SIGNATURE PAGES FOLLOW]
[SIGNATURE PAGE 1 OF 22 TO CONSENT AND AMENDMENT NO. 4]
IN WITNESS WHEREOF, the parties hereto, by their officers thereunto
duly authorized, have executed this Amendment as of the day and year first above
written.
[BORROWER]
WESTINGHOUSE AIR BRAKE TECHNOLOGIES
CORPORATION(f/k/a Westinghouse Air Brake
Company)
By:
-------------------------------------
(SEAL)
Name:
Title:
[GUARANTORS]
RAILROAD FRICTION PRODUCTS CORPORATION;
VAPOR CORPORATION; MOTIVEPOWER CANADA
CORPORATION; WABTEC DISTRIBUTION
COMPANY; MOTIVEPOWER, INC.; YOUNG
TOUCHSTONE COMPANY; WABTEC ENGINE
SYSTEMS COMPANY; WABTEC HOLDING CORP.;
WABTEC CORPORATION; WABTEC
TRANSPORTATION TECHNOLOGIES, INC.
By:
-------------------------------------
(SEAL)
Name:
Title: Vice President of each of the above
listed companies
[SIGNATURE PAGE 2 OF 22 TO CONSENT AND AMENDMENT NO. 4]
[BANKS AND AGENTS]
LASALLE BANK NATIONAL ASSOCIATION,
individually and as Agent, Bookrunner,
Co-Syndication Agent, and an Issuing Bank
By:
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Name:
Title:
[SIGNATURE PAGE 3 OF 22 TO CONSENT AND AMENDMENT NO. 4]
ABN AMRO BANK N.V., as an Issuing Bank
By:
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Name:
Title:
By:
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Name:
Title:
[SIGNATURE PAGE 4 OF 22 TO CONSENT AND AMENDMENT NO. 4]
MELLON BANK, N.A., individually and as
Documentation Agent
By:
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Name:
Title:
[SIGNATURE PAGE 5 OF 22 TO CONSENT AND AMENDMENT NO. 4]
THE CHASE MANHATTAN BANK, individually and as
Administrative Agent
By:
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Name:
Title:
[SIGNATURE PAGE 6 OF 22 TO CONSENT AND AMENDMENT NO. 4]
NATIONAL CITY BANK OF PENNSYLVANIA
By:
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Name:
Title:
[SIGNATURE PAGE 7 OF 22 TO CONSENT AND AMENDMENT NO. 4]
PNC BANK, NATIONAL ASSOCIATION
By:
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Name:
Title:
[SIGNATURE PAGE 8 OF 22 TO CONSENT AND AMENDMENT NO. 4]
FLEET NATIONAL BANK (formerly BankBoston, N.A.)
By:
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Name:
Title:
[SIGNATURE PAGE 9 OF 22 TO CONSENT AND AMENDMENT NO. 4]
U.S. BANK NATIONAL ASSOCIATION
By:
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Name:
Title:
[SIGNATURE PAGE 10 OF 22 TO CONSENT AND AMENDMENT NO. 4]
THE BANK OF NEW YORK, individually and as
Co-Syndication Agent
By:
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Name:
Title:
[SIGNATURE PAGE 11 OF 22 TO CONSENT AND AMENDMENT NO. 4]
BANK ONE, N.A.
By:
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Name:
Title:
[SIGNATURE PAGE 12 OF 22 TO CONSENT AND AMENDMENT NO. 4]
FIRST UNION NATIONAL BANK
By:
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Name:
Title:
[SIGNATURE PAGE 13 OF 22 TO CONSENT AND AMENDMENT NO. 4]
DG BANK DEUTSCHE GENOSSENSCHAFTSBANK AG
By:
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Name:
Title:
By:
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Name:
Title:
[SIGNATURE PAGE 14 OF 22 TO CONSENT AND AMENDMENT NO. 4]
THE BANK OF NOVA SCOTIA
By:
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Name:
Title:
[SIGNATURE PAGE 15 OF 22 TO CONSENT AND AMENDMENT NO. 4]
BANK OF TOKYO-MITSUBISHI TRUST CO.
By:
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Name:
Title:
[SIGNATURE PAGE 16 OF 22 TO CONSENT AND AMENDMENT NO. 4]
CREDIT AGRICOLE INDOSUEZ
By:
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Name:
Title:
By:
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Name:
Title:
[SIGNATURE PAGE 17 OF 22 TO CONSENT AND AMENDMENT NO. 4]
CREDIT LYONNAIS NEW YORK BRANCH
By:
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Name:
Title:
[SIGNATURE PAGE 18 OF 22 TO CONSENT AND AMENDMENT NO. 4]
CREDIT SUISSE FIRST BOSTON
By:
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Name:
Title:
By:
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Name:
Title:
[SIGNATURE PAGE 19 OF 22 TO CONSENT AND AMENDMENT NO. 4]
THE DAI-ICHI KANGYO BANK, LTD.
By:
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Name:
Title:
[SIGNATURE PAGE 20 OF 22 TO CONSENT AND AMENDMENT NO. 4]
MANUFACTURERS AND TRADERS TRUST COMPANY
By:
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Name:
Title:
[SIGNATURE PAGE 21 OF 22 TO CONSENT AND AMENDMENT NO. 4]
SUNTRUST BANK
By:
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Name:
Title:
[SIGNATURE PAGE 22 OF 22 TO CONSENT AND AMENDMENT NO. 4]
CHASE MANHATTAN BANK USA, N.A., as an Issuing
Bank
By:
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Name:
Title:
SCHEDULE 1.1(C)
ASSETS TO BE SOLD PURSUANT TO THE GE SALE
(a) all of the Acquired Subsidiaries Shares (as hereinafter defined);
(b) all of the assets, properties, rights (contractual or otherwise)
and business of every kind and description, wherever located, real, personal or
mixed, tangible or intangible, owned or principally used by any Wabtec Group
Member (as hereinafter defined) in connection with the Business (as hereinafter
defined);
(c) together with such other assets, rights, business, and property as
are incidental to the foregoing; and
(d) plus or minus such assets, rights, business, and property which
have in the aggregate a net effect not exceeding $20,000,000 on the
consideration paid or to be paid under the Purchase Agreement, dated as of July
24, 2001, among Borrower and General Electric Company (acting through its GE
Transportation Systems Business) and reflecting any one or more amendments
thereto since July 24, 2001.
The following words and terms used in this Schedule 1.1(C) shall have the
following respective meanings, unless the context clearly requires otherwise:
"ACQUIRED SUBSIDIARIES SHARES" means collectively all of the outstanding shares
of capital stock of MPI de Mexico, S.A. de C.V., MPI Noreste, S.A. de C.V., and
Motor Coils de Mexico, S.A. de C.V
"BUSINESS" shall mean the Westinghouse Air Brake Technologies Corporation
locomotive component manufacturing, remanufacturing, reverse engineering,
aftermarket parts supply and locomotive service business listed below:
1. Motive Power, Inc.'s locomotive services business performed on BNSF freight
locomotives and based in Barstow, CA.
2. Motive Power, Inc.'s EMD 645 series diesel engine Tier 0 emissions
technology as developed as of the date of close which GETS must complete
then license to Wabtec as developed at MPI in Boise, ID.
3. Motor Coils Manufacturing Company's new and remanufactured traction motor,
new and remanufactured locomotive generators, alternators and electrical
auxiliaries, and new and remanufactured field coils and armature coil kits
businesses based in San ▇▇▇▇ Potosi, Mexico, Emporium, PA, St. Louis, MO,
and currently located in Braddock, PA, for all market applications of those
products and services including locomotive, drilling drives and marine
propulsion.
4. Wabtec Distribution Company's (formerly Power Parts Company) locomotive
aftermarket parts and kits sourcing and distribution business based in Elk
Grove Village, IL.
5. The businesses formerly operated by G&G Locotronics, now operated by Wabtec
Distribution Company, based in Elk Grove Village, IL, of new and
remanufactured EMD High Voltage Cabinets, EMD HEP Cabinets, EMD control
stands, new 480 volt molded passenger car jumpers and accessories, new 27
pin locomotive jumpers and accessories, repaired Dash 2 modules, EMD and
Siemens brand contractors and switches, EMD controllers and cab stands,
locomotive lighting products, externally sourced distributed products and
sub-components of the aforementioned (excluding the businesses of Vapor,
Q-Tron and Wabtec Railways Electronics) with some exceptions defined as
exceptions to the Restricted Activities.
6. Wabtec Engine Systems Company's business based in Latham, NY and Elk Grove
Village, IL including new manufacture of, remanufacture of, sourcing of,
repair of and parts for (i) EMD 567, 645, and 710, Alco, and certain GE
Turbochargers, (ii) EMD 645 and 710 Power Assemblies and (iii) assorted
other EMD and GE diesel engine components as sourced or manufactured by
Engine Systems for all market applications of those products and services
including locomotive, stationary power and marine diesel engines.
7. MPI de Mexico, S.A. de C.V's complete locomotive backship and running
maintenance capability, railcar repair services and locomotive and railcar
wheel-set manufacture and repair business based in San ▇▇▇▇ Potosi, MX,
Acambaro, MX and Mexico City, MX; provided that the Wabtec Service Center
and the activities of Young Touchstone division at San Louis Potosi are
excluded.
8. All drawings, intellectual property, manuals, know-how, trade secret or
confidential information, supplier lists, customer lists, process
documentation, business records, proposals, inventory, and contracts
primarily related to any of the above, including contracts owned and
proposals submitted by Wabtec on behalf of the above such as Freight
Australia Material Supply contract and the A.L.L. locomotive services
proposal.
"WABTEC" means Westinghouse Air Brake Technologies Corporation.
"WABTEC GROUP MEMBER" means Wabtec, any of its direct or indirect subsidiaries,
or any parent entity of any of the foregoing.
