Exhibit 4.1
AMENDMENT, WAIVER AND RELEASE AGREEMENT
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This Amendment, Waiver and Release Agreement (this "Agreement") is
entered into as of October 12, 1999, by the and among ABC-NACO Inc., a Delaware
corporation (the "Company"), ABC-NACO de Mexico, S.A. de C.V., a Mexican
corporation (the "Mexican Borrower"), Dominion Castings Limited, an Ontario
corporation (the "Canadian Borrower" and, together with the Company and the
Mexican Borrower, the "Borrowers"), each of the several financial institutions
signatory hereto (collectively, the "Majority Lenders") and Bank of America,
National Association (f/k/a Bank of America National Trust and Savings
Association) individually and as agent (the "Agent") for the benefit of the
Lenders under the Credit Agreement hereinafter referred to.
RECITALS
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A. The Borrowers, Bank of America Canada, as Canadian Revolving
Lender, the financial institutions from time to time party thereto (the
"Lenders") and the Agent and Letter of Credit Issuing Lender are parties to that
certain credit agreement dated as of February 19, 1999 (the "Credit Agreement").
Unless otherwise specified herein, capitalized terms used in this Agreement
shall have the meanings ascribed to them by the Credit Agreement.
B. Under the Loan Documents, the assets of the Mexican Borrower and
its Subsidiaries serve as collateral for the Obligations of the Company. It was
intended, however, that such assets serve as collateral only if or for so long
as such security would not result in any economic detriment for the Company.
C. As a result of circumstances unanticipated by the parties, the
Company has and will continue to incur economic detriment arising from such
collateral.
D. Accordingly, the undersigned Majority Lenders, in accordance with
Section 11.01(b) of the Credit Agreement, wish to authorize the Agent acting in
its capacity as Collateral Agent under the Collateral Documents to, effective as
of the date of the Credit Agreement, (i) effect the release of Collateral of the
Mexican Borrower and the subsidiaries of the Mexican Borrower (the "Mexican
Subsidiaries" and together with the Mexican Borrower, the "Mexican Entities")
securing the Obligations of the Company and the Canadian Borrower that such
Collateral will only secure the Mexican Borrower's Obligations; (ii) release
each of the Mexican Entities from its Obligation under the Mexican Guaranty to
guaranty the Obligations of the Company and the Canadian Borrower and (iii)
reduce the percentage of shares of the Mexican Borrower that is pledged as
Collateral, in each case on the terms and conditions set forth below
(collectively, the "Releases").
E. The Borrowers, the Agent and the undersigned Majority Lenders wish
to amend certain provisions of the Credit Agreement and waive certain provisions
of the Credit Agreement on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual execution hereof and
other good and valuable consideration, the parties hereto agree as follows:
1. Amendments to Credit Agreement. The Credit Agreement is hereby
amended as follows:
(a) The definition of "Fiscal Quarter" in Article I of the Credit
Agreement is amended by deleting it in its entirety and substituting in
lieu thereof the following:
"means, prior to November 1, 1999 each of the quarterly
accounting periods ending on October 31, January 31, April 30 and July 31
and for December 31, 1999, the accounting period ending the immediately
preceding 12 months and thereafter each of the quarterly periods ending on
March 31, June 30, September 30 and December 31 of each fiscal year."
(b) The definition of "Interest Coverage Ratio" in Article I of
the Credit Agreement is amended by deleting the period at the end thereof
and adding the following:
"provided, that, with respect to the period ending December 31,
1999, Consolidated Interest Expense shall be calculated for the immediately
preceding twelve months."
(c) The definition of "Leverage Ratio" in Article I of the Credit
Agreement is amended by deleting the period at the end thereof and adding
the following:
"provided, that, with respect to the period ending December 31,
1999, EBITDA shall be calculated for the immediately preceding twelve
months."
(d) The definition of "Senior Leverage Ratio" in Article I of the
Credit Agreement is amended by deleting the period at the end thereof and
adding the following:
"provided, that, with respect to the period ending December 31,
1999, EBITDA shall be calculated for the immediately preceding twelve
months."
(e) Sections 8.14 through 8.16 of the Credit Agreement are
amended by deleting all references therein to "January" and substituting in
lieu thereof "March."
(f) Section 8.17 of the Credit Agreement is amended by inserting
the following immediately after the "1999" in the first column of the table
therein:
"and for the immediately preceding twelve month period ending
December 31, 1999"
2. Consent and Waiver. Any breach by the Borrowers of the provisions
of Section 8.12 as a result of the change of the fiscal year of the Company and
its Subsidiaries is hereby waived.
3. Release of Collateral. As of the date of the Credit Agreement,
the undersigned Majority Lenders hereby authorize the Collateral Agent in its
discretion to take any and all necessary actions necessary to:
(a) effect a complete release of the Liens on Collateral of the
Mexican Entities securing Obligations of the Company and the Canadian
Borrower other than Liens securing the direct Obligations of the Mexican
Borrower which shall continue in full force and effect;
(b) release the Mexican Entities from their guaranty of the
Obligations of the Company and the Canadian Borrower pursuant to the
relevant Guaranty; provided, that notwithstanding anything to the contrary
set forth herein, any and all guaranties of the direct Obligations of the
Mexican Borrower shall continue in full force and effect;
(c) release the shares of stock of the Mexican Borrower
constituting more than 65% of the shares of the Mexican Borrower's stock
pledged to the Collateral Agent as Collateral securing the Obligations of
the Company under the relevant Pledge Agreement.
4. Covenants of the Borrowers. The Borrowers hereby agree, as soon
as possible, but not later than November 30, 1999, to:
(a) repay in full all outstanding obligations under that certain
loan to Creditanstalt Corporate Finance, Inc. listed on Schedule 8.05 to
the Credit Agreement and cancel all remaining commitments thereunder; and
(b) deliver to the Agent for the benefit of the Lenders:
(i) a fully executed deed of trust, mortgage or similar
document in each case in form and substance satisfactory to the Agent,
which shall cover the Borrower's rail mill facility located at 0000 Xxxxx
Xxxxx Xxxxxx xx Xxxxxxx Xxxxxxx, Xxxxxxxx (the "Chicago Heights Mill");
(ii) a mortgage title insurance policy relating to the
Chicago Heights Mill issued by a title insurance company satisfactory to
the Agent, in form and substance satisfactory to the Agent and insuring the
Agent that the mortgage is a valid and enforceable first priority mortgage
lien on the Chicago Heights Mill; and
(iii) a survey, in form and substance reasonably
satisfactory to Agent, of the Chicago Heights Mill dated a recent date,
acceptable to Agent and certified by a licensed professional surveyor in a
manner reasonably satisfactory to the Agent.
5. Representations and Warranties of the Borrowers. The Borrowers
represent and warrant that:
(a) The execution, delivery and performance by each of the
Borrowers of this Agreement have been duly authorized by all necessary
corporate action and that this Agreement is a legal, valid and binding
obligation of such Borrower enforceable
against such Borrower in accordance with its terms, except as the
enforcement thereof may be subject to the effect of any applicable
bankruptcy, insolvency, reorganization, moratorium or similar law affecting
creditors' rights generally;
(b) Each of the representations and warranties contained in the
Credit Agreement is true and correct in all material respects on and as of
the date hereof as if made on the date hereof; and
(c) After giving effect to this Agreement, no Default or
Unmatured Default has occurred and is continuing.
6. Effective Date. This Agreement shall be effective as of the date
set forth above upon the execution and delivery hereof by the Collateral Agent
and the Majority Lenders, provided, however, the Releases shall be effective as
of February 19, 1999.
7. Reference to and Effect Upon the Credit Agreement.
(a) The Credit Agreement and the other Loan Documents shall
remain in full force and effect and are hereby ratified and confirmed.
(b) The execution, delivery and effectiveness of this Agreement
shall not operate as a waiver of any right, power or remedy of the
Collateral Agent, Agent or any Lender under the Credit Agreement or any
Loan Document, nor constitute a waiver of any provision of the Credit
Agreement or any Loan Document, except as specifically set forth herein.
8. Costs and Expenses. The Company hereby affirms its obligation
under Section 11.04 of the Credit Agreement to reimburse the Agent for all
reasonable costs, internal charges and out-of-pocket expenses paid or incurred
by the Agent in connection with the preparation, negotiation, execution and
delivery of this Agreement, and with the preparation, negotiation, execution and
delivery of the collateral release documents, including but not limited to the
attorneys' fees and time charges of attorneys for the Agent with respect
thereto.
9. Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed shall be deemed an original but all
such counterparts shall constitute one and the same instrument.
(signature pages follow)
ABC-NACO INC.
/s/ Xxxxxxx X. Xxx
By: _______________________________________
Vice President & Corporate Treasurer
Title: ____________________________________
ABC-NACO de MEXICO S.A. de C.V.
/s/ Xxxxxxx X. Xxx
By: _______________________________________
Vice President & Corporate Treasurer
Title: ____________________________________
DOMINION CASTINGS LIMITED
/s/ Xxxxxxx X. Xxx
By: _______________________________________
Vice President & Corporate Treasurer
Title: ____________________________________
BANK OF AMERICA, NATIONAL
ASSOCIATION,
as Agent
/s/ Xxxxx X. Xxxxxxxx
By: __________________________________
Xxxxx X. Xxxxxxxx
Vice President
Title: _______________________________
BANK OF AMERICA, NATIONAL
ASSOCIATION,
Individually as a Lender and as the Issuing Lender
/s/ Xxxx X. Xxxxxxxxxx
By: __________________________________
Senior Vice President
Title: _______________________________
ABN AMRO BANK N.V., as a Lender
/s/ Xxxxx X. Xxxxxx
By: __________________________________
Group Vice President
Title: _______________________________
/s/ Xxxxx Xxxxxx
By: __________________________________
Assistant Vice President
Title: _______________________________
BANKBOSTON, N.A., as a Lender
By: /s/ Xxxx Xxxxxxx
----------------------------------
XXXX XXXXXXX
Title: VICE PRESIDENT
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BANK ONE, NA (Main Office Chicago),
as a Lender
/s/ Xxxxx X. Xxxxxx
By: ----------------------------------
XXXXX X. XXXXXX
Title: VICE PRESIDENT
-------------------------------
XXXXXX TRUST AND SAVINGS BANK, as a
Lender
/s/ Xxxxxxx X. XxXxxxxxx
By: __________________________________
Vice President
Title: _______________________________
LASALLE NATIONAL BANK, as a Lender
/s/ Xxxxx X. Xxxxxx
By: __________________________________
XXXXX X. XXXXXX
VICE PRESIDENT
Title: _______________________________
THE NORTHERN TRUST COMPANY, as a Lender
/s/ Xxxx X. Xxxx
By: __________________________________
Second Vice President
Title: _______________________________
PNC BANK, NATIONAL ASSOCIATION, as a
Lender
/s/ Xxxxxx X. Xxxxxxx
By: __________________________________
Senior Vice President
Title: _______________________________
U.S. BANK NATIONAL ASSOCIATION, as a
Lender
/s/ Xxxxx X. Xxxxxxxx
By: __________________________________
XXXXX X. XXXXXXXX
VICE PRESIDENT
Title: _______________________________
BANK OF AMERICA CANADA, as Canadian
Revolving Lender
/s/ Xxxxxxx X. Xxxx
By: __________________________________
Xxxxxxx X. Xxxx
Vice President
Title: _______________________________
FIRSTAR BANK MILWAUKEE, N.A., as a Lender
/s/ Xxx X. Xxxxxx
By: __________________________________
Vice President
Title: _______________________________
