Exhibit 10.34
AMENDMENT NO. 2 TO AMENDED AND RESTATED
REFINANCING CREDIT AGREEMENT
THIS AMENDMENT NO. 2 (this "Amendment") is dated as of March
30, 2001, and amends the Amended and Restated Refinancing Credit Agreement, by
and among WESTINGHOUSE AIR BRAKE TECHNOLOGIES CORPORATION (formerly known as
Westinghouse Air Brake Company) and THE GUARANTORS FROM TIME TO TIME PARTY
THERETO and THE BANKS FROM TIME TO TIME PARTY THERETO and ABN AMRO BANK N.V., as
bookrunner and co-syndication 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, and CHASE MANHATTAN BANK USA, N.A. (successor in interest
to Chase Manhattan Bank Delaware), as an issuing bank, dated as of November 19,
1999, as amended by Amendment No. 1 to Amended and Restated Refinancing Credit
Agreement, dated as of November 16, 2000 (as amended, the "Credit Agreement").
BACKGROUND
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The parties hereto desire to amend the Credit Agreement to (i)
modify the minimum interest coverage ratio, (ii) allow the Borrower to make a
loan to the current management of Vapor Power, a division of Vapor Corporation,
or an entity controlled by them ("Vapor Management") in connection with the sale
of Vapor Power to Vapor Management (the "Vapor Power Sale"), and (iii) allow the
Borrower to guaranty certain obligations of Vapor Management to a lender
providing financing to Vapor Management in connection with the Vapor Power Sale.
Vapor Corporation shall remain a Guarantor under 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
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. 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 Indebtedness, Rents Covenant. As of the date hereof, a new clause
(ix) is added to Section 8.2.1 of the Credit Agreement as follows:
"(ix) Indebtedness in the form of a Guaranty permitted under Section
8.2.3 hereof."
1.03 Guaranties Covenant. As of the date hereof, Section 8.2.3 of the
Credit Agreement is deleted in its entirety and the following is inserted
therefor:
"8.2.3. Guaranties.
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Neither the Borrower nor any of its Subsidiaries
shall, at any time, directly or indirectly, become or be
liable in respect of any Guaranty, or assume, guaranty, become
surety for, endorse or otherwise become or remain directly,
indirectly or contingently liable upon or with respect to any
obligation or liability of any other Person, except for (i)
Guaranties of the Indebtedness of the Borrower and its
Subsidiaries permitted hereunder and (ii) a Guaranty by the
Borrower of the obligations of Vapor Management to the lender
providing financing to Vapor Management in connection with the
Vapor Power Sale in an amount not to exceed $3,500,000."
1.04 Loans and Investments Covenant. As of the date hereof, Section
8.2.4 of the Credit Agreement is deleted in its entirety and the following is
inserted therefor:
"8.2.4. Loans and Investments.
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Neither the Borrower nor any of its Subsidiaries
shall, at any time, make or suffer to remain outstanding any
loan or advance to, or purchase, acquire, or own any stock,
bonds, notes, or securities of, or any partnership interest
(whether general or limited) or limited liability company
interest in, or any other investment or interest in, or make
any capital contribution to or other Investment in, any other
Person, or agree, become or remain liable to do any of the
foregoing, except:
(i) trade credit extended on usual and customary
terms in the ordinary course of business;
(ii) advances to employees of Loan Parties to meet
expenses incurred by such employees in the ordinary course of
business;
(iii) Permitted Investments;
(iv) Permitted Acquisitions; and
(v) a loan from the Borrower to Vapor Management for
the consummation of the Vapor Power Sale in an amount not to
exceed $1,000,000."
1.05 Minimum Interest Coverage Ratio. As of the date hereof, Section
8.2.14 of the Credit Agreement is deleted in its entirety and the following is
inserted therefor:
"8.2.14. Minimum Interest Coverage Ratio.
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The Loan Parties shall not permit the ratio of Cash
Flow to consolidated interest expense (including the interest
component of payments made in connection with capitalized
leases, synthetic leases, and similar leases) of Borrower and
it Subsidiaries, calculated as of the end of each fiscal
quarter for the immediately preceding four (4) fiscal quarters
then ended, (i) for the fiscal quarters ending on or before
September 30, 2001, to be less than 3.25 to 1.0, and (ii) for
the fiscal quarters ending on December 31, 2001, or
thereafter, to be less than 3.5 to 1.0."
1.06 Mergers. Each of the Loan Parties acknowledges, represents, and
warrants that, on or about December 31, 2000, MP International I, Inc., MP
International II, Inc., and TFL, Inc., each a
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Delaware corporation, merged with and into WABTEC Holding Corp. which was the
surviving company of the merger.
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 compliance with the terms and provisions hereof or
thereof 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 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, (c) require any consent or
approval of any Person under the terms of any such agreement or instrument, (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 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. Vapor
Corporation shall remain a Guarantor under the Credit Agreement.
ARTICLE III
EFFECT, EFFECTIVENESS, CONSENT OF GUARANTORS
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3.01 Effectiveness. This Amendment shall become effective in accordance
with its terms 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
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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 appropriate as to (a) authorization of such Loan Party to enter
into the transactions contemplated by this Amendment, (b) the names of the
officers of such Loan Party authorized to execute this Amendment and the true
signatures of such officers, on which the Agent and each Bank may conclusively
rely, and (c) copies of the organizational documents of such Loan Party that
have been amended, restated, supplemented or otherwise modified since the date
of the last certification to the Agent, including such Loan Party's certificate
of incorporation and bylaws, each certified, to the extent applicable, by the
appropriate state official where such documents are filed in a state office.
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
respectively 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 Expenses. The Loan Parties agree, jointly and severally, to
reimburse the Agent for its reasonable out-of-pocket expenses arising in
connection with the negotiation, preparation and execution of this Amendment,
including the reasonable fees and expenses of Xxxxxxxx Xxxxxxxxx PC, counsel for
the Agent.
4.05 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.
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4.06 Banks' Consent. Each Bank, by its execution hereof, hereby
consents to this Amendment pursuant Section 11.1 of the Credit Agreement. IN
WITNESS WHEREOF, the parties hereto, by their officers duly authorized,
have executed and delivered this Amendment as of the date first above written.
[SIGNATURE PAGES FOLLOW]
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[SIGNATURE PAGE 1 OF 21 OF AMENDMENT]
BORROWER:
WESTINGHOUSE AIR BRAKE
TECHNOLOGIES CORPORATION
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.
(successor by merger to MP
International I, Inc., and MP
International II, Inc.); WABTEC
CORPORATION
By: _________________________(SEAL)
Name:
Title: Vice President of each
of the above listed
companies
[SIGNATURE PAGE 2 OF 21 OF AMENDMENT]
BANKS:
ABN AMRO BANK N.V., individually and as
Bookrunner and Co-Syndication Agent
By:
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Name:
Title:
By:
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Name:
Title:
[SIGNATURE PAGE 3 OF 21 OF AMENDMENT]
MELLON BANK, N.A., individually and as
Documentation Agent
By:
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Name:
Title:
[SIGNATURE PAGE 4 OF 21 OF AMENDMENT]
THE CHASE MANHATTAN BANK, individually and as
Administrative Agent
By:
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Name:
Title:
[SIGNATURE PAGE 5 OF 21 OF AMENDMENT]
NATIONAL CITY BANK OF PENNSYLVANIA
By:
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Name:
Title:
[SIGNATURE PAGE 6 OF 21 OF AMENDMENT]
PNC BANK, NATIONAL ASSOCIATION
By:
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Name:
Title:
[SIGNATURE PAGE 7 OF 21 OF AMENDMENT]
FLEET NATIONAL BANK
By:
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Name:
Title:
[SIGNATURE PAGE 8 OF 21 OF AMENDMENT]
U.S. BANK NATIONAL ASSOCIATION
By:
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Name:
Title:
[SIGNATURE PAGE 9 OF 21 OF AMENDMENT]
THE BANK OF NEW YORK, individually and as
Co-Syndication Agent
By:
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Name:
Title:
[SIGNATURE PAGE 10 OF 21 OF AMENDMENT]
BANK ONE MICHIGAN
By:
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Name:
Title:
[SIGNATURE PAGE 11 OF 21 OF AMENDMENT]
FIRST UNION NATIONAL BANK
By:
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Name:
Title:
[SIGNATURE PAGE 12 OF 21 OF AMENDMENT]
DG BANK
DEUTSCHE GENOSSENSCHAFTSBANK AG
By:
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Name:
Title:
By:
--------------------------------------
Name:
Title:
[SIGNATURE PAGE 00 XX 00 XX XXXXXXXXX]
XXX XXXX XX XXXX XXXXXX
By:
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Name:
Title:
[SIGNATURE PAGE 14 OF 21 OF AMENDMENT]
BANK OF TOKYO-MITSUBISHI TRUST CO.
By:
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Name:
Title:
[SIGNATURE PAGE 15 OF 21 OF AMENDMENT]
CREDIT AGRICOLE INDOSUEZ
By:
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Name:
Title:
By:
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Name:
Title:
[SIGNATURE PAGE 16 OF 21 OF AMENDMENT]
CREDIT LYONNAIS NEW YORK BRANCH
By:
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Name:
Title:
[SIGNATURE PAGE 17 OF 21 OF AMENDMENT]
CREDIT SUISSE FIRST BOSTON
By:
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Name:
Title:
By:
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Name:
Title:
[SIGNATURE PAGE 18 OF 21 OF AMENDMENT]
THE DAI-ICHI KANGYO BANK, LTD.
By:
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Name:
Title:
[SIGNATURE PAGE 19 OF 21 OF AMENDMENT]
MANUFACTURERS AND TRADERS TRUST COMPANY
By:
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Name:
Title:
[SIGNATURE PAGE 20 OF 21 OF AMENDMENT]
SUNTRUST BANK
By:
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Name:
Title:
[SIGNATURE PAGE 21 OF 21 OF AMENDMENT]
ISSUING BANK:
CHASE MANHATTAN BANK USA, N.A.
By:
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Name:
Title:
