EXHIBIT 10.38
AMENDMENT NO. 6 TO AMENDED AND RESTATED
REFINANCING CREDIT AGREEMENT
THIS AMENDMENT NO. 6 (this "AMENDMENT") is dated as of November 13, 2002,
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"), JPMORGAN CHASE 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, Amendment No.
3 to Amended and Restated Refinancing Credit Agreement, dated as of July 18,
2001, Consent and Amendment No. 4 to Amended and Restated Refinancing Credit
Agreement, dated as of September 17, 2001, and Amendment No. 5 to Amended and
Restated Refinancing Credit Agreement, dated as of November 14, 2001 (as so
amended, the "CREDIT AGREEMENT").
BACKGROUND
The parties hereto desire to amend the Credit Agreement to (i) extend the
Convertible Revolving Credit Expiration Date and (ii) provide for the addition
of lenders, now and in the future, with respect to the convertible revolving
credit facility.
OPERATIVE PROVISIONS
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
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 Amendment of Credit Agreement.
(a) Recitals. Clause (ii) of the fourth recital of the Credit Agreement is
hereby amended and restated in its entirety to read as follows:
"(ii) a 364-day convertible revolving credit facility in an amount not
to exceed $100,000,000; and"
(b) Definition of Convertible Revolving Credit Expiration Date. The
definition of "Convertible Revolving Credit Expiration Date" as set forth in
Section 1.1 of the Credit Agreement is hereby amended and restated in its
entirety as follows:
"Convertible Revolving Credit Expiration Date shall mean, with respect
to the Convertible Revolving Credit Commitments, November 11, 2003, as
such date may be extended in accordance with the terms hereof, but in
no event beyond the Revolving Credit Expiration Date."
(c) Commitments. As of the date hereof, Schedule 1.1(B) to the Credit
Agreement is hereby deleted and replaced in its entirety with Schedule 1.1(B)
hereto. For the avoidance of doubt and notwithstanding any provision of the
Credit Agreement to the contrary, the Convertible Revolving Credit Commitment of
each Bank for whom the "Amount of Commitment for Convertible Revolving Credit
Loans" is established on Schedule 1.1(B) to this Amendment at zero, "$0.00," or
the like is hereby terminated and each such Bank shall have no obligation
whatsoever to make any Convertible Revolving Credit Loan under the Credit
Agreement as modified hereby.
(d) Additional Lenders Under the Convertible Revolving Credit Facility;
Amendment to Section 11.11. The following Clause (iv) shall be added to Section
11.11 of the Credit Agreement:
"(iv) Additional lenders who are not Bank parties to this Agreement
may join in this Agreement at any time for the purpose of providing
additional Convertible Revolving Credit Commitments to Borrower;
provided that the addition of such lenders shall be subject to the
following: (1) no increase of the Convertible Revolving Credit
Commitment of any Bank which at such time is a party hereto shall
occur, (2) the maximum permitted amount of all Convertible Revolving
Credit Commitments of all Banks (after giving effect to the additional
Convertible Revolving Credit Commitments of such new lenders) shall
not exceed $100,000,000, (3) the addition of any such lender shall be
subject to (A) the consent of Borrower and Agent to the same extent as
is required at Section 11.11(i) in connection with the making of
assignments and participations and (B) the confidentiality provisions
of Section 11.12.1 with respect to potential assignees and
participants, and (4) each such additional lender shall become a Bank
under this Agreement by executing and delivering to Agent and Borrower
(with copies to be provided to each of the Banks) a joinder to this
Agreement substantially in the form of Exhibit 11.11. Agent shall
distribute to the Banks an amended Schedule 1.1(B) reflecting the
additional Convertible Revolving Credit Commitments of each additional
lender whereupon such lender shall be a Bank hereunder entitled to and
bound by the rights and obligations of a Bank hereunder."
(e) Exhibit 11.11. As of the date hereof, Exhibit 11.11 to this Amendment
shall be Exhibit 11.11 to the Credit Agreement.
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(f) Sales of Non-Equal Percentages Permitted. To permit sales by the Banks
under the Credit Agreement of all or a portion of one revolving credit facility
without selling all or an equal portion of the other revolving credit facility
thereunder, the proviso in Clause (3) of Section 11.11(i), which states
"provided that except as set forth in Section 3.4, such Bank sells an equal
percentage interest or participation in each of its Revolving Credit Commitment,
Convertible Revolving Credit Commitment, Revolving Credit Loans, and Convertible
Revolving Credit Loans," is hereby deleted and replaced with the following:
"provided that such Bank sells an equal percentage interest or participation in
its Revolving Credit Commitment or its Convertible Revolving Credit Commitment
and its Loans relating to such commitment,".
1.03 Waiver of Notice. The parties hereto hereby waive the notice periods
required by Subsections 3.4.1(a) and (b) of the Credit Agreement.
1.04 Indentures Paid; Deletion of Limitation on Guaranties and on Holdings
of Various Subsidiaries. The Loan Parties, jointly and severally, represent and
warrant to the Agent and each of the Banks that the Indentures have been paid in
full and that no principal amount is outstanding under the Indentures.
Accordingly, (i) each of the Guarantors hereby acknowledges and agrees: that the
limitation set forth at Section 16(d) of each Guaranty Agreement (and any
related limitation set forth in any of the Loan Documents on the obligations of
any Loan Party under each Guaranty Agreement) is of no further force or effect;
and, Section 16(d) of the Guaranty Agreement is hereby deleted; and (ii) Section
8.2.6(b) is hereby deleted.
1.05 Renewal Fees. On or before the date hereof and as a condition to the
effectiveness of this Amendment, Borrower shall pay in immediately available
funds to each Bank an amount equal to 15 basis points (0.15%) of the amount of
such Bank's Convertible Revolving Credit Commitment set forth on Schedule 1.1(B)
hereto. Upon any additional lender referred to in Clause (d) of this Section
1.02 becoming a Bank, Borrower shall pay in immediately available funds to each
such Bank an amount equal to 15 basis points (0.15%) of the amount of such
Bank's Convertible Revolving Credit Commitment set forth on the then applicable
Schedule 1.1(B) to the Credit Agreement.
1.06 Name Changes, Mergers. Each of the Loan Parties acknowledges,
represents, warrants, and covenants as follows:
(a) As of August 15, 2002, MotivePower Canada Corporation changed its
name to Wabtec Railway Electronics Corporation; for all purposes of
the Credit Agreement and the other Loan Documents, as amended hereby,
MotivePower Canada Corporation and Wabtec Railway Electronics Company
are one and the same, and all references in each of the Loan Documents
to MotivePower Canada Corporation are and shall be deemed to be
references to Wabtec Railway Electronics Company;
(b) Pursuant to a Certificate of Ownership and Merger of Borrower,
effective as of December 31, 2001, Vapor Corporation merged with and
into Borrower which is the surviving company of the merger;
(c) Pursuant to an Agreement and Plan of Merger between Young
Touchstone Company and Wabtec Engine Systems Company, effective as of
December 10, 2001, Wabtec Engine Systems Company merged with and into
Young Touchstone Company which was the surviving company of the
merger; and Young Touchstone Company hereby confirms
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its succession by operation of law to all obligations of Wabtec Engine
Systems Company under the Loan Documents, as amended hereby; and
(d) Each of the Loan Parties executing this Amendment as a Guarantor
include all of the direct or indirect domestic Subsidiaries of
Borrower.
REPRESENTATIONS AND WARRANTIES
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 the
consummation of the transactions contemplated hereby or by the Credit Agreement
as amended hereby nor compliance with the terms and provisions hereof or of the
Credit Agreement as amended hereby, by any of the Loan Parties,
(a) will, if such would cause or constitute a Material Adverse
Change, conflict with, constitute a default under, or result in any
breach of (i) any Law or (ii) 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,
or
(b) will (i) 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, (ii) result
in the creation or imposition of any Lien upon any property (now owned
or hereafter acquired) of any Loan Party, or (iii) 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.
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ARTICLE III
EFFECT, EFFECTIVENESS, CONSENT OF GUARANTORS
3.01 Effectiveness. Subject to Section 1.05 hereof, this Amendment shall
become effective as of the date hereof on the date that Agent shall have
received from each of the Borrower, the other 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 sufficient resolutions and a
certificate signed by the Secretary or Assistant Secretary of such Loan Party
certifying as to the articles and bylaws of such Loan Party and the due
authorization of such Loan Party to enter into this Amendment, and of the
officer executing this Amendment on its behalf, together with an opinion of
counsel with respect to the enforceability of, and the due authorization and
capacity of the Loan Parties to execute, deliver and perform, this Amendment.
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 its agreement with Sections 1.04
and 1.06 hereof, 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
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.
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4.05 Banks' Consent. Each Bank, by its execution hereof, hereby consents to
this Amendment pursuant Section 11.1 of the Credit Agreement.
4.06 Return of Convertible Revolving Credit Notes. To the extent that a
Non-Agreeing Bank [defined at Section 3.4.1(c) of the Credit Agreement] has not
assigned its Convertible Revolving Credit Commitment to another lender, such
Bank shall, as soon as practicable, return to Borrower such Bank's Convertible
Revolving Credit Note, if any; or, in the event such note has been lost or
destroyed, such Bank shall evidence to the Borrower, in a manner reasonably
satisfactory to the Borrower, such Bank's cancellation of such note and shall
execute a lost note indemnity agreement reasonably satisfactory to Agent and
Borrower.
On or prior to the date hereof, Borrower shall issue, execute, and deliver
to Agent replacement Convertible Revolving Credit Notes to give effect to any
changes in the Convertible Revolving Credit Commitments set forth on Schedule
1.1(B) hereto. Each Bank affected thereby that is not a Non-Agreeing Bank agrees
that it shall return to Agent such Bank's existing Convertible Revolving Credit
Note for substitution thereof; or, in the event such note has been lost or
destroyed, such Bank shall evidence to Agent and Borrower, in a manner
reasonably satisfactory to Agent and Borrower, such Bank's cancellation of such
note and shall execute a lost note indemnity agreement reasonably satisfactory
to Agent and Borrower.
[SIGNATURE PAGES FOLLOW]
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[SIGNATURE PAGE 1 OF 22 TO AMENDMENT NO. 6]
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; RFPC HOLDING CORP.;
WABTEC RAILWAY ELECTRONICS
CORPORATION (formerly known as
MotivePower Canada Corporation); WABTEC
DISTRIBUTION COMPANY;
MOTIVEPOWER, INC.; YOUNG
TOUCHSTONE COMPANY (successor by
merger to Wabtec Engine Systems
Company); WABTEC HOLDING CORP.;
WABTEC CORPORATION; WABTEC
TRANSPORTATION TECHNOLOGIES, INC.
By: (SEAL)
----------------------------------
Name:
Title: Vice President or Treasurer of
each of the above listed
companies
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[SIGNATURE PAGE 2 OF 22 TO AMENDMENT NO. 6]
[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:
CITIZENS BANK OF PENNSYLVANIA
By:
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Name:
Title:
[SIGNATURE PAGE 3 OF 22 TO AMENDMENT NO. 6]
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 AMENDMENT NO. 6]
MELLON BANK, N.A., individually and as
Documentation Agent
By:
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Name:
Title:
[SIGNATURE PAGE 5 OF 22 TO AMENDMENT NO. 6]
JPMORGAN CHASE BANK, individually and
as Administrative Agent
By:
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Name:
Title:
[SIGNATURE PAGE 6 OF 22 TO AMENDMENT NO. 6]
NATIONAL CITY BANK OF PENNSYLVANIA
By:
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Name:
Title:
[SIGNATURE PAGE 7 OF 22 TO AMENDMENT NO. 6]
PNC BANK, NATIONAL ASSOCIATION
By:
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Name:
Title:
[SIGNATURE PAGE 8 OF 22 TO AMENDMENT NO. 6]
FLEET NATIONAL BANK (formerly
BankBoston, N.A.)
By:
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Name:
Title:
[SIGNATURE PAGE 9 OF 22 TO AMENDMENT NO. 6]
U.S. BANK NATIONAL ASSOCIATION
By:
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Name:
Title:
[SIGNATURE PAGE 10 OF 22 TO AMENDMENT NO. 6]
THE BANK OF NEW YORK, individually and
as Co-Syndication Agent
By:
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Name:
Title:
[SIGNATURE PAGE 11 OF 22 TO AMENDMENT NO. 6]
BANK ONE, N.A.
By:
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Name:
Title:
[SIGNATURE PAGE 12 OF 22 TO AMENDMENT NO. 6]
WACHOVIA BANK, NATIONAL ASSOCIATION
(formerly, First Union National Bank)
By:
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Name:
Title:
[SIGNATURE PAGE 13 OF 22 TO AMENDMENT NO. 6]
DZ BANK AG DEUTSCHE ZENTRAL-
GENOSSENSCHAFTSBANK, FRANKFURT
AM MAIN
(successor by merger to 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 AMENDMENT NO. 6]
THE BANK OF NOVA SCOTIA
By:
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Name:
Title:
[SIGNATURE PAGE 15 OF 22 TO AMENDMENT NO. 6]
BANK OF TOKYO-MITSUBISHI TRUST CO.
By:
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Name:
Title:
[SIGNATURE PAGE 16 OF 22 TO AMENDMENT NO. 6]
CREDIT AGRICOLE INDOSUEZ
By:
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Name:
Title:
By:
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Name:
Title:
[SIGNATURE PAGE 17 OF 22 TO AMENDMENT NO. 6]
CREDIT LYONNAIS NEW YORK BRANCH
By:
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Name:
Title:
[SIGNATURE PAGE 18 OF 22 TO AMENDMENT NO. 6]
CREDIT SUISSE FIRST BOSTON
By:
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Name:
Title:
By:
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Name:
Title:
[SIGNATURE PAGE 19 OF 22 TO AMENDMENT NO. 6]
THE DAI-ICHI KANGYO BANK, LTD.
By:
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Name:
Title:
[SIGNATURE PAGE 20 OF 22 TO AMENDMENT NO. 6]
MANUFACTURERS AND TRADERS TRUST COMPANY
By:
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Name:
Title:
[SIGNATURE PAGE 21 OF 22 TO AMENDMENT NO. 6]
SUNTRUST BANK
By:
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Name:
Title:
[SIGNATURE PAGE 22 OF 22 TO AMENDMENT NO. 6]
CHASE MANHATTAN BANK USA, N.A., as
an Issuing Bank
By:
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Name:
Title:
