ABC-NACO INC.
(formerly known as ABC Rail Products Corporation)
AND
U.S. BANK NATIONAL ASSOCIATION (as successor trustee to First Trust National
Association)
FOURTH SUPPLEMENTAL INDENTURE Dated as of May 18, 2001
Supplementing that certain Indenture
Dated as of January 15, 1997 by and between
ABC Rail Products Corporation and
First Trust National Association
FOURTH'SUPPLEMENTAL INDENTURE
THIS FOURTH SUPPLEMENTAL INDENTURE (this "Supplemental Indenture") is made
and entered into as of May 18, 2001, between ABC-NACO Inc., a Delaware
corporation (the "Company"), and U.S. Bank National Association, a national
banking association, as successor trustee to First Trust National Association, a
national banking association (the "Trustee").
RECITALS
WHEREAS, pursuant to that certain Indenture dated as of January 15, 1997
(as amended, supplemented or modified from time to time, the "indenture"),
between the Company (formerly ABC Rail Products Corporation); and U.S. Bank
National Association (successor trustee to First Trust National Association),
the Company executed (i) an officer's certificate dated January 23, 1997 (the
"Series A 10 % Officer's Certificate"), establishing a series of securities now
known as the 10 % Senior Subordinated Notes, Series A, Due 2004 in the original
principal amount of $50,000,000 (the "Series A 10 % Notes") and (ii) an
officer's certificate dated December 17, 1997 (the "Series B 10 % Officer's
Certificate") (the Series A 10 % Officer's Certificate and the Series B 10 %
Officer's Certificate each, an "Officer's Certificate" and together, the
"Officer's Certificates"), establishing a series of securities now known as the
10 % Senior Subordinated Notes, Series B, Due 2004 in the original principal
amount of $25,000,000 (the "Series B 10 % Notes" and, together with the Series A
10 % Notes, the "Notes");
WHEREAS, the Company requested that the holders of the Notes consent to the
modification of certain covenants under each Officer's Certificate and
established pursuant to Section 301(17) of the Indenture;
WHEREAS, pursuant to Section 902 of the Indenture, the holders of not less
than a majority of the aggregate principal amount of the outstanding Notes
(voting as one class) have consented to the modification of certain covenants
under each Officer's Certificate and established pursuant to Section 301(17) of
the Indenture;
WHEREAS, the Company requested that the holders of the Notes consent to the
amendment of the interest rate under Paragraph 4(a) of each Officer's
Certificate and established pursuant to Section 301 (5) of the Indenture;
WHEREAS, pursuant to Section 902 of the Indenture, the holders of not less
than a majority of the aggregate principal amount of the outstanding Notes
(voting as one class) have consented to the amendment of the interest rate under
Paragraph 4(a) of each Officer's Certificate and established pursuant to Section
301(5) of the Indenture;
WHEREAS, the Company desires to change the titles of the Series A 10 %
Notes and the Series B 10 % Notes, respectively, to reflect the amendment to the
interest rate provision;
WHEREAS, pursuant to Sections 901(4) and 901(8) of the Indenture, the
Company and the Trustee may, without the consent of any holders of the Notes,
change any provision of the Indenture or correct any provision that may be
inconsistent with any other provision of the Notes, provided that such action
does not adversely affect the rights of the holders of the Notes or any other
security in any material respect; and
WHEREAS, in order to effectuate and formalize the aforementioned
amendments, the parties hereto desire to amend the Indenture and each Officer's
Certificate as set forth below and to enter into this Supplemental Indenture.
NOW THEREFORE, the parties hereto, intending to be legally bound, and in
consideration of the premises and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, do hereby amend the
Indenture and the Officer's Certificates and further agree as set forth below:
SECTION 1. DEFINITIONS. All terms capitalized but not otherwise defined in
this Supplemental Indenture shall have the meanings assigned to such terms in
the Indenture.
SECTION 2. EFFECT OF THIS SUPPLEMENTAL INDENTURE.
(A) Except as expressly supplemented or amended by this Supplemental
Indenture, all of the terms and provisions of the Indenture and the Officer's
Certificates shall remain in full force and effect.
(B) To the extent of any inconsistency between the terms and provisions of
this Supplemental Indenture and the terms and provisions of the Indenture and
the Officer's Certificates, this Supplemental Indenture shall control.
(C) The rules of construction stated in Section 1.01 of the Indenture shall
apply to this Supplemental Indenture.
SECTION 3. AMENDMENT TO PARAGRAPH 10(B) OF EACH OFFICER'S CERTIFICATE.
Subparagraph (b) of Paragraph 10 of each Officer's Certificate is hereby
amended, effective immediately, in its entirety to read as follows:
"[intentionally omitted]"
SECTION 4. AMENDMENT TO PARAGRAPH 10(C) OF EACH OFFICER'S CERTIFICATE.
Subparagraph (c) of Paragraph 10 of each Officer's Certificate is hereby
amended, effective immediately, in its entirety to read as follows:
"The Company will not, and will not permit any Subsidiary to, Incur any
Funded Debt if, immediately after giving effect to any such creation,
incurrence, assumption or guarantee (including the retirement of any existing
Indebtedness from the proceeds of such additional Funded Debt), the aggregate
amount of Funded Debt outstanding would exceed 75% of Consolidated
Capitalization, provided, however, that the Company may Incur any Funded Debt on
or prior to December 31, 2002, as long as such Incurrence is permitted under the
Credit Facility."
SECTION 5. AMENDMENT TO PARAGRAPH 10(D) OF EACH OFFICER'S CERTIFICATE.
Subparagraph (d) of Paragraph I0 of each Officer's Certificate is hereby
amended, effective immediately, in its entirety to read as follows:
"The Company is not required to maintain any Operating Coverage Ratio at
the end of any fiscal quarter in 2001. Thereafter, it will maintain(i) at the
end of the fiscal quarter ended March 3 l, 2002, an Operating Coverage Ratio
with respect to the four consecutive fiscal quarters then ended taken as a whole
of at least 1.2:1.0, (ii) AT the end of the fiscal quarter ended June 30, 2002,
an Operating Coverage Ratio with respect to the four consecutive fiscal quarters
then ended taken as a whole of at least 1.4:1.0, (iii) at the end of the fiscal
quarter ended September 30, 2002, an Operating Coverage Ratio with respect to
the four consecutive fiscal quarters then ended taken as a whole of at least
1.6:1.0, and (iv) at the end of each of its fiscal quarters thereafter, an
Operating Coverage Ratio with respect to the four consecutive fiscal quarters
then ended taken as a whole of at least 1.8:1.0."
SECTION 6. ADDITIONS TO DEFINITIONS CONTAINED IN PARAGRAPH 10 OF EACH
OFFICER'S CERTIFICATE. The definitions contained in Paragraph 10 of each
Officer's Certificate are hereby amended, effective immediately, to add the
following additional definitions:
"'Credit Facility' means the Company's Third Amended and Restated Credit
Agreement dated as of October 30, 2000, as amended from time to time by the
parties thereto."
"'ING Holders' means (i) Xxxxxx Xxxx Investors H LP ("FS 11'3, (ii) ING
Xxxxxx Xxxx Investors IH LP ("FS Ill"), (iii) any parallel investment funds of
FS II or FS III the manager, general partner or managing member of which is
either FS Private Investments LLC or FS Private Investments Ill LLC, (iv) any
Affiliate of any of the foregoing and (v) the successors and assigns of the
foregoing."
SECTION 7. AMENDMENT TO DEFINITION OF "CHANGE OF CONTROL" CONTAINED IN
PARAGRAPH 7 OF EACH OFFICER'S CERTIFICATE. The definition of "Change of Control"
contained in Paragraph 7 of each Officer's Certificate is hereby amended,
effective immediately, in its entirety to read as follows:
"'Change of Control' means the occurrence of one or more of the following
events, whether or not approved by the Board of Directors:
(1) any Person or Persons acting together that would constitute a "group"
for purposes of Section 13(d) of the Securities Exchange Act, as amended (a
"Group"), together with any Affiliates thereof, other than any employee stock
ownership plan of the Company or the trusts for any other employee stock
ownership, benefit or pension plans of the Company or any Subsidiary, and other
than the ING Holders, shall beneficially own (as defined in Rule 13d-3 of the
Commission) at least 50% of the Voting Stock of the Company;
(2) other than the ING Holders, any one Person or Group (other than the
Board of Directors as it may be constituted from time to time), or any
Affiliates thereof, shall succeed in having sufficient of its or their nominees
elected to the Board of Directors such that such nominees, when added to any
existing director remaining on the Board of Directors after such election who is
an Affiliate of such Group, shall constitute a majority of the Board of
Directors;
(3) any sale, lease, exchange or other transfer (in one transaction or a
series of related transactions) of all, or substantially all, the assets of the
Company to any Person or Group;
(4) the shareholders of the Company shall approve any plan for the
liquidation or dissolution of the Company; or
(5) the merger or consolidation of the Company with or into another
corporation or the merger of another corporation into the Company with the
effect that immediately alter such transaction any Person or Group, other than
the ING Holders, holds more than 50% of the Voting Stock of the surviving
corporation of such merger or consolidation."
SECTION 8. AMENDMENT TO PARAGRAPH 4(A) OF EACH OFFICER'S CERTIFICATE.
Subparagraph (a) of Paragraph 4 of each Officer's Certificate is hereby amended,
effective January 1, 2002, in its entirety to read as follows:
"(a) the rate at which the Notes shall bear interest is 11 1/2%;"
SECTION 9. AMENDMENT TO PARAGRAPH 1 OF THE SERIES A 10% OFFICER'S
CERTIFICATE. Paragraph 1 of the Series A 10% Officer's Certificate is hereby
amended, effective January 1, 2002, in its entirety to read as follows:
"Pursuant to Section 301(1) of the Indenture, the title of the Securities
of the series established by this Officer's Certificate is '11~% Senior
Subordinated Notes, Series A, Due 2004.'"
SECTION 10. AMENDMENT TO PARAGRAPH 1 OF THE SERIES B 10 % OFFICER'S
CERTIFICATE. Paragraph I of the Series B 10 % Officer's Certificate is hereby
amended, effective January 1, 2002, in its entirety to read as follows:
"Pursuant to Section 301(1) of the Indenture, the title of the Securities
of the series established by this Officer's Certificate is '11~% Senior
Subordinated Notes, Series B, Due 2004.'"
SECTION 11. REFERENCES TO INDENTURE. All references in the Indenture to the
Indenture shall hereafter be deemed to refer to the Indenture as amended by this
Supplemental Indenture and as may be further amended, modified, restated or
replaced from time to time.
SECTION 12. OTHER TERMS-IN FULL FORCE AND EFFECT. Except as expressly so
amended, the Indenture and the Officer's Certificates shall remain u-modified
and in full force and effect.
SECTION 13. COUNTERPARTS. This Supplemental Indenture may be executed in
any number of counterparts with the same effect as if all parties hereto had
signed the same document. All such counterparts shall bc construed together and
shall constitute one instrument, but in making proof hereof it shall only be
necessary to produce one such counterpart.
IN WITNESS WHEREOF, thc parties hereto have caused this Supplemental
Indenture to be executed as of thc day and year first above written.
ABC-NACO Inc.
Name: Xxxxx X. Xxxxxxxx
Title: Senior Vice President and
Chief Financial Officer
ATTEST:
Name: Xxxx X. Xxxxxx
Title: Vice President, General Counsel
and Secretary
U.S. BANK NATIONAL ASSOCIATION,
as successor trustee
Name: Xxxxxxx X. Xxxxxxx
Title: Assistant Vice President
ATTEST:
Name: Xxxxxxx X. Xxxxx
Vice President
