Exhibit 10.40
[EXECUTION COPY]
AMENDMENT NO. 7 TO AMENDED AND RESTATED
REFINANCING CREDIT AGREEMENT
THIS AMENDMENT NO. 7 (this "Amendment") is dated as of May 17, 2003, 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, Amendment No. 5 to Amended and
Restated Refinancing Credit Agreement, dated as of November 14, 2001, and
Amendment No. 6 to Amended and Restated Refinancing Credit Agreement, dated as
of November 13, 2002 (as so amended, the "Credit Agreement").
BACKGROUND
The parties hereto desire to amend the Credit Agreement to (i) permit the
Borrower and its Subsidiaries to increase their use of surety bonds in response
to the expansion of their business with transit authorities and other customers,
(ii) permit the Loan Parties to provide customers of the Borrower and its
Subsidiaries with assurances of performance without the necessity of a surety
company, and (iii) provide for a successor to an Issuing Bank.
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) Definition of Indebtedness. The definition of "Indebtedness " as set
forth in Section 1.1 of the Credit Agreement is hereby amended and restated in
its entirety as follows:
"Indebtedness shall mean, as to any Person at any time, any and all
indebtedness, obligations, or liabilities (whether matured or unmatured,
liquidated or unliquidated, direct or indirect, absolute or contingent, or
joint or several) of such Person for or in respect of: (i) borrowed money,
(ii) amounts raised under or liabilities in respect of any note purchase or
acceptance credit facility, (iii) reimbursement or payment obligations
(contingent or otherwise) under or in connection with any letter of credit,
surety bond (but only to the extent that the aggregate amount reasonably
determined to remain payable under all surety bonds outstanding at any time
exceeds $200,000,000), or Swap Agreement, with the value of any such Swap
Agreement being determined at the end of each quarter in accordance with a
method of valuation reasonably acceptable to the Agent based upon a daily
xxxx-to-market method of calculation, (iv) any other transaction (including
forward sale or purchase agreements, capitalized leases, synthetic leases,
and conditional sales agreements) having the commercial effect of a
borrowing of money entered into by such Person to finance its operations or
capital requirements (but not including trade payables and accrued expenses
incurred in the ordinary course of business which are not represented by a
promissory note or other evidence of indebtedness and which are not more
than sixty (60) days past due), (v) the current portion of mandatory
redeemable stock or similar interests, or (vi) any Guaranty of
Indebtedness."
(b) Definition of Issuing Bank. The definition of "Issuing Bank " as set
forth in Section 1.1 of the Credit Agreement is hereby amended and restated in
its entirety as follows:
"Issuing Bank shall mean ABN AMRO Bank N.V., Chase Manhattan Bank USA,
N.A. (or its assignee, JPMorgan Chase Bank), or LaSalle, provided that with
respect to any Letters of Credit issued hereunder (other than those Letters
of Credit deemed to be issued hereunder pursuant to Section 11.19 hereof)
(i) on or after the date hereof, but prior to July 18, 2001, the Issuing
Bank shall mean only ABN AMRO Bank N.V., and (ii) on or after July 18,
2001, the Issuing Bank shall mean only LaSalle."
(c) Intercompany Guaranties of Performance Permitted. The following text is
hereby added to Section 8.2.3 of the Credit Agreement immediately before the
period at the end of such Section, with effect at all times prior to and from
the date hereof:
"and (iii) notwithstanding any other provision hereof (but subject to the
proviso below), Guaranties of performance, completion, quality, and the like
provided by Borrower or any Subsidiary of Borrower with respect to performance
or similar obligations owing to a Person by Borrower or any of its Subsidiaries
provided, however, that the sum of all amounts paid plus all costs incurred, as
the case may be, by the Loan Parties with respect to Guaranties of the
performance or similar obligations of all non-domestic Subsidiaries of Borrower,
to the extent such amounts paid or costs incurred by Loan Parties are not repaid
or reimbursed by the non-domestic Subsidiaries of Borrower, shall be deemed to
be (A) Indebtedness of non-domestic Subsidiaries of Borrower owing to Loan
Parties for the purposes, and subject to the limitations, of Section 8.2.1(iv),
and (B) loans by Loan Parties to non-domestic Subsidiaries of Borrower for the
purposes, and subject to the limitations, of Section 8.2.4(iii) (as determined
by reference to Clause (v) of the definition herein of "Permitted Investments")
and Section
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8.2.5(2)(ii). For the avoidance of doubt and other than as is set forth in
Clause (iii) of the preceding sentence, none of the obligations incurred or
amounts paid or costs incurred by the Borrower or any of its Subsidiaries with
respect to such Guaranties of the performance or similar obligations of Borrower
or any of its Subsidiaries shall be deemed to be Indebtedness of or a loan to
Borrower or any of its Subsidiaries.
Article II
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 Authorization. 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 Valid and Binding. 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 No Conflicts. 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, 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, (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, (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 No Defaults. 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. Except as otherwise set forth herein, 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 a certificate signed by the
Secretary or Assistant Secretary of such Loan Party certifying as to (i) the
articles, bylaws, and relevant resolutions, and due authorization to enter into
this Amendment, of such Loan Party, and (ii) the officer of such Loan Party, and
her or his specimen signature, 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
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.
[SIGNATURE PAGES FOLLOW]
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[SIGNATURE PAGE 1 OF 23 TO AMENDMENT NO. 7]
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
[SIGNATURE PAGE 2 OF 23 TO AMENDMENT NO. 7]
[BANKS AND AGENTS]
LASALLE BANK NATIONAL ASSOCIATION,
individually and as Agent, Bookrunner,
Co-Syndication Agent, and an Issuing Bank
By:
-------------------------------------
Name:
Title:
[SIGNATURE PAGE 3 OF 23 TO AMENDMENT NO. 7]
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 23 TO AMENDMENT NO. 7]
MELLON BANK, N.A., individually and as
Documentation Agent
By:
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Name:
Title:
[SIGNATURE PAGE 5 OF 23 TO AMENDMENT NO. 7]
JPMORGAN CHASE BANK, individually and as
Administrative Agent
By:
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Name:
Title:
[SIGNATURE PAGE 6 OF 23 TO AMENDMENT NO. 7]
NATIONAL CITY BANK OF PENNSYLVANIA
By:
-------------------------------------
Name:
Title:
[SIGNATURE PAGE 7 OF 23 TO AMENDMENT NO. 7]
PNC BANK, NATIONAL ASSOCIATION
By:
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Name:
Title:
[SIGNATURE PAGE 8 OF 23 TO AMENDMENT NO. 7]
FLEET NATIONAL BANK (formerly BankBoston,
N.A.)
By:
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Name:
Title:
[SIGNATURE PAGE 9 OF 23 TO AMENDMENT NO. 7]
U.S. BANK NATIONAL ASSOCIATION
By:
-------------------------------------
Name:
Title:
[SIGNATURE PAGE 10 OF 23 TO AMENDMENT NO. 7]
THE BANK OF NEW YORK, individually and as
Co-Syndication Agent
By:
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Name:
Title:
[SIGNATURE PAGE 11 OF 23 TO AMENDMENT NO. 7]
BANK ONE, N.A.
By:
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Name:
Title:
[SIGNATURE PAGE 12 OF 23 TO AMENDMENT NO. 7]
WACHOVIA BANK, NATIONAL ASSOCIATION
(formerly, First Union National Bank)
By:
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Name:
Title:
[SIGNATURE PAGE 13 OF 23 TO AMENDMENT NO. 7]
DZ BANK AG DEUTSCHE ZENTRAL-
GENOSSENSCHAFTSBANK, FRANKFURT AM MAIN
(successor by merger to DG BANK DEUTSCHE
GENOSSENSCHAFTSBANK AG)
By:
-------------------------------------
Name:
Title:
By:
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Name:
Title:
[SIGNATURE PAGE 14 OF 23 TO AMENDMENT NO. 7]
THE BANK OF NOVA SCOTIA
By:
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Name:
Title:
[SIGNATURE PAGE 15 OF 23 TO AMENDMENT NO. 7]
BANK OF TOKYO-MITSUBISHI TRUST CO.
By:
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Name:
Title:
[SIGNATURE PAGE 16 OF 23 TO AMENDMENT NO. 7]
CREDIT AGRICOLE INDOSUEZ
By:
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Name:
Title:
By:
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Name:
Title:
[SIGNATURE PAGE 17 OF 23 TO AMENDMENT NO. 7]
CREDIT SUISSE FIRST BOSTON
By:
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Name:
Title:
By:
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Name:
Title:
[SIGNATURE PAGE 18 OF 23 TO AMENDMENT NO. 7]
MIZUHO CORPORATE BANK, LIMITED (formerly
The Dai-Ichi Kangyo Bank, Ltd.)
By:
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Name:
Title:
[SIGNATURE PAGE 19 OF 23 TO AMENDMENT NO. 7]
MANUFACTURERS AND TRADERS TRUST COMPANY
By:
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Name:
Title:
[SIGNATURE PAGE 20 OF 23 TO AMENDMENT NO. 7]
SUNTRUST BANK
By:
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Name:
Title:
[SIGNATURE PAGE 21 OF 23 TO AMENDMENT NO. 7]
FIFTH THIRD BANK
By:
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Name:
Title:
[SIGNATURE PAGE 22 OF 23 TO AMENDMENT NO. 7]
CITIZENS BANK OF PENNSYLVANIA
By:
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Name:
Title:
[SIGNATURE PAGE 23 OF 23 TO AMENDMENT NO. 7]
JPMORGAN CHASE BANK, successor by
assignment from CHASE MANHATTAN BANK USA,
N.A., as an Issuing Bank
By:
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Name:
Title:
