EXHIBIT 4.3
REIMBURSEMENT AGREEMENT
THIS REIMBURSEMENT AGREEMENT ("Agreement") dated as of October 10,
1995, by each of Xxxxxxxx Xxxxxxx Corporation, a Delaware corporation ("MKD"),
Xxxxxxxx Xxxxxxx Corporation, an Ohio Corporation ("MKO"), and each of the
affiliates of MKD listed on the signature pages hereof (collectively, the
"Obligors," and each, an "Obligor"), to and for the benefit of Fidelity and
Deposit Company of Maryland (the "Bonding Company").
RECITALS
A. Reference is made to (1) the Guaranty Agreement dated as of
October 10, 1995 by the Bonding Company in favor of Credit Suisse (the "Guaranty
Agreement") and (2) the Override Agreement dated as of July 31, 1995 among MKD,
MKO, the Banks and Other Financial Institutions Named Therein and Mellon Bank,
N.A., as Agent (as amended from time to time, the "Override Agreement").
Capitalized terms used but not defined herein have the meanings assigned to such
terms in the Guaranty Agreement.
B. In order to induce the Bonding Company to participate in a global
restructuring (the "Global Restructuring") of certain obligations of MKO and
MKD, the Bonding Company has required that the Obligors execute and deliver to
the Bonding Company this Agreement.
C. MKO has operated a public transportation manufacturing business
(the "Business") providing engineering services and manufacturing and
refurbishing light rail cars for various municipalities and other governmental
entities (collectively, the "Transit Division Customers").
D. The Transit Division Customers, the Obligors, the Bonding
Company, and other parties have agreed to a global restructuring of certain
obligations of the Obligors (the "Global Restructuring"), the principal terms
and conditions of which include, among other things, that MKO would transfer and
assign to American Passenger Rail Car Company, L.L.C. (the "Borrower") assets
used to conduct the Business in accordance with the terms of an Asset Purchase
Agreement dated as of October 10, 1995 (the "Asset Purchase Agreement"). In
connection with the Guaranty Agreement, the Bonding Company and the Borrower
have entered into an Indemnification and Reimbursement Agreement dated as of
October 10, 1995 (the "Indemnification and Reimbursement Agreement").
E. The Sureties are concurrently entering into a Release of even
date in reliance upon each of the following, and would not execute such Release
in the absence of any of the following: (i) the validity and enforceability of
this Agreement, the Distribution Agreement (as defined in the Override Agreement
as in effect on the date hereof) and the documents securing the obligations of
the Obligors under this Agreement, (ii) the validity and enforceability of each
of the transactions contemplated by
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the Asset Purchase Agreement, (iii) neither the Borrower nor the Sureties will
be required to make any post closing payments as a consequence of any bankruptcy
proceeding or otherwise, in order to retain the benefits of the assets
transferred in the Asset Purchase Agreement, including the contracts with the
Transit Division Customers.
F. Accordingly, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound, the Obligors hereby agree as
follows:
SECTION 1. Each of the Obligors absolutely and unconditionally
agrees, jointly and severally, to indemnify and pay the Bonding Company (a) for
any losses incurred by the Bonding Company under, pursuant to or in connection
with the Guaranty Agreement or the Indemnification and Reimbursement Agreement
and (b) for any losses incurred by the Bonding Company in connection with (i)
any loan it makes to the Borrower, (ii) any extensions of credit made pursuant
to Section 2.4 of the Intercreditor and Subordination Agreement dated as of
October 10, 1995 among the Bonding Company, Bank of America National Trust and
Savings Association, as agent for itself and certain other banks and financial
institutions, or (iii) matters referred to in Section 2 of the Agreement of
Indemnity dated as of October 10, 1995 between the Borrower and the Bonding
Company (in calculating the losses of the Bonding Company under this paragraph,
any amounts paid by the Bonding Company to any third party shall bear interest
at the interest rate then being charged under the Override Agreement (which may
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be the Prime Rate or the Default Rate, each as defined in the Override
Agreement) (the "Obligations"); PROVIDED, HOWEVER, that the maximum amount of
the Obligations hereunder shall not, except for interest referred to in the
following sentence, exceed $31,249,377.00. After the amount of the
"Obligations" hereunder has become fixed at an amount not to exceed
$31,249,377.00, such amount shall thereafter bear interest until paid at the
interest rate then being charged under the Override Agreement (which may be the
Prime Rate or the Default Rate, each as defined in the Override Agreement). The
losses referred to in this Section 1 refer only to losses incurred in connection
with the Borrower's performance of the Transit Division Contracts (as defined in
the Asset Purchase Agreement) and not in connection with the Borrower's
performance of other contracts or projects undertaken by the Borrower. In
calculating the amount of such losses, any recovery received by the Bonding
Company from any disposition of the Borrower shall not reduce such loss. The
losses referred to above will be fixed on the day (the "Loss Determination
Date") that is ninety (90) days after the date the last railcar manufactured
pursuant to the Transit Division Contracts (as defined in the Asset Purchase
Agreement) is accepted by a Transit Division Customer. The Obligors shall make
payments with respect to the Obligations in accordance with the Distribution
Agreement (as defined in the Override Agreement as in effect on the date
hereof).
SECTION 2. Each of the Obligors waives presentment to, demand of
payment from and protest to any other corporation, partnership, company, person,
firm or other entity (any of which a "Person") obligated with respect to any of
the Obligations,
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and also waives notice of acceptance and notice of protest for nonpayment. The
obligations of each Obligor hereunder shall not be affected by: (a) the failure
of the Bonding Company to assert any claim or demand or to enforce any right or
remedy against any Obligor; or (b) any rescission, waiver, amendment or
modification of, or any release from any of the terms or provisions of, any
guarantee or any other agreement, including with respect to any other Obligor
under this Agreement.
SECTION 3. Each of the Obligors waives any right to require that any
resort be had by the Bonding Company to any other Person responsible for the
Obligations or any security held for payment of the Obligations.
SECTION 4. The obligations of each Obligor hereunder shall be
absolute and unconditional and shall not be subject to any reduction,
limitation, impairment or termination for any reason, including, without
limitation, any claim of waiver, release, surrender, alteration or compromise,
and shall not be subject to any setoff, counterclaim, deduction, diminution,
abatement, suspension, reduction, recoupment, termination or defense (other than
full and strict indefeasible satisfaction of the Obligations) whatsoever.
Without limiting the generality of the foregoing, the obligations of each
Obligor hereunder shall not be released, discharged, impaired or otherwise
affected by any circumstance or condition whatsoever (whether or not the Obligor
has knowledge thereof) which may or might in any manner or to any extent vary
the risk of any Obligor or otherwise operate as a discharge of any Obligor as a
matter of law or equity (other than the indefeasible
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payment in full of all of the Obligations), including, without limitation:
(a) any amendment, modification, addition, deletion or
supplement to or other change to any of the terms of the Guaranty Agreement, the
Credit Agreement or any other instrument or agreement applicable to any of the
parties hereto or thereto, or any assignment or transfer of any thereof, or any
furnishing, acceptance, surrender, substitution, modification or release of any
security for any of the Obligations, or the failure of any security or the
failure of any person to perfect any interest in any collateral;
(b) any failure, forbearance, omission or delay on the part of
any Obligor or the Bonding Company to conform or comply with any term of any
instrument or agreement, or any failure to give notice to any Person of the
occurrence of an Event of Default under the Guaranty Agreement or the Credit
Agreement;
(c) any waiver of the payment, performance or observance of any
of the obligations, conditions, covenants or agreements contained in the
Guaranty Agreement or the Credit Agreement, or any other waiver, consent,
extension, renewal, indulgence, compromise, release, settlement, refunding or
other action or inaction under or in respect of the Obligations, or under or in
respect of any obligation or liability of the Borrower or any Obligor or the
Bonding Company or any exercise or non-exercise of any right, remedy, power or
privilege under or in respect of any of the foregoing;
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(d) any extension of the time for payment of the principal of or
interest, or of the time for performance, of any obligations, covenants or
agreements under or arising out of the Guaranty Agreement or the Credit
Agreement, or the extension or the renewal thereof;
(e) any failure, omission or delay on the part of the Bonding
Company to enforce, assert or exercise any right, power or remedy conferred on
it in any agreement relating to the Obligations, or any other failure, omission,
delay, action or inaction on the part of the Bonding Company;
(f) to the extent permitted by applicable law, any voluntary or
involuntary bankruptcy, insolvency, reorganization, moratorium, arrangement,
adjustment, readjustment, composition, assignment for the benefit of creditors,
receivership, conservatorship, custodianship, liquidation, marshaling of assets
and liabilities or similar proceedings with respect to any Obligor or any other
Person or any of their respective properties or creditors, or any action taken
by any trustee or receiver or by any court in any such proceeding (including,
without limitation, any automatic stay incident to any such proceeding); or
(g) any other occurrence, circumstance, happening or event
whatsoever, whether similar or dissimilar to the foregoing, whether foreseen or
unforeseen, and any other circumstance which might otherwise constitute a legal
or
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equitable defense, release or discharge (including the release or discharge of
the liabilities of a obligor or surety or which might otherwise limit recourse
against any Obligor, whether or not the Obligor shall have notice or knowledge
of the foregoing).
SECTION 5. Each of the Obligors agrees that its obligations hereunder
shall continue to be effective or be reinstated, as the case may be, if at any
time payment, or any part thereof, of any Obligation is rescinded, invalidated,
declared to be fraudulent or preferential, or must otherwise be returned,
refunded, repaid or restored by the Bonding Company upon the bankruptcy or
reorganization of any Obligor or otherwise.
SECTION 6. None of the Obligors shall have any right by way of
subrogation, contribution or otherwise as a result of the payment of any sums
hereunder. Each of the Obligors agrees that it will never have, and hereby
waives and disclaims, any claim or right against the Borrower or any other
Person by way of subrogation, contribution or otherwise in respect of any
payment that such Obligor may be required to make hereunder.
SECTION 7. Each Obligor represents, warrants and covenants that this
Agreement has been duly authorized by each Obligor and constitutes the legal,
valid and binding obligation of each Obligor, enforceable against each Obligor
in accordance with its terms.
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SECTION 8. This Agreement shall be binding upon each Obligor and its
successors, and shall inure to the benefit of the Bonding Company and its
successors and assigns. None of the Obligors may assign or transfer any of its
rights or obligations under this Agreement, without the prior written consent of
the Bonding Company.
SECTION 9. No failure on the part of the Bonding Company to exercise,
and no delay in exercising, any right, power or remedy hereunder shall operate
as a waiver thereof, nor shall any single or partial exercise of any such right,
power or remedy by the Bonding Company preclude any other or further exercise
thereof or the exercise of any other right, power or remedy. All remedies
hereunder are cumulative and are not exclusive of any other remedies provided by
law. The Bonding Company shall not be deemed to have waived any rights
hereunder or under any other agreement or instrument unless such waiver shall be
in writing and signed by the Bonding Company.
SECTION 10. This Agreement shall be construed in accordance with and
governed by the laws of the State of New York, without regard to its conflict of
laws doctrine.
SECTION 11. All notices, requests and other communications to any
party hereunder shall be in writing (including telex, facsimile transmission or
similar writing) and shall be given to such party at its address, facsimile
number or telex number set forth below or such other address, facsimile number
or telex number as such party may
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hereafter specify as provided through a notice complying with this section.
Each such notice, request or other communication shall be effective (i) if given
by telex, when such telex is transmitted to the telex number specified in this
section and the appropriate answer back is received, (ii) if given by facsimile
transmission, when transmitted to the facsimile number specified in this Section
and confirmation of receipt is received, (iii) if given by mail, seventy-two
(72) hours after such communication is deposited in the mails with first class
postage prepaid, addressed as aforesaid or (iv) if given by any other means,
when delivered at the address specified in this section. Addresses for the
parties as of the date of this Agreement are as follows:
If to any Obligor:
c/x Xxxxxxxx Xxxxxxx Corporation
000 Xxxx Xxxxxxxxx
Xxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with copies to:
Xxxxx, Day, Xxxxxx & Xxxxx
00 Xxxx Xxxxxx Xxxxx
Xxxxxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to the Bonding Company:
Fidelity and Deposit Company of Maryland
000 Xxxxx Xxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
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Attention: Xxxxxx X. Xxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with copies to:
Steptoe & Xxxxxxx
0000 Xxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxxxxxx Xxxxxx, Esq.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
SECTION 12. If any provision contained in this Agreement should be
held invalid, illegal or unenforceable in any respect with respect to any
Obligor, the validity, legality and enforceability of the remaining provisions
contained herein, and of such provision with respect to any other Obligor, shall
not in any way be affected or impaired. The parties shall endeavor in good-
faith negotiations to replace any invalid, illegal or unenforceable provisions
with valid provisions, the economic effect of which comes as close as possible
to that of the invalid, illegal or unenforceable provisions.
SECTION 13. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original, but all of which, when
taken together, shall constitute but one instrument; provided that this
Agreement shall be construed as a separate agreement with respect to each
Obligor and may be amended, modified, supplemented, waived or released with
respect to any Obligor without the approval of any other Obligor and without
affecting the obligations of any other Obligor hereunder.
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SECTION 14. Except as set forth in Section 13, this Agreement may not
be amended except pursuant to a written agreement executed by each of the
parties hereto.
SECTION 15. Each of the Obligors agrees, jointly with the other
Obligors and severally, to pay on demand any and all costs and expenses incurred
by the Bonding Company in connection with enforcement of any rights under this
Agreement (including the reasonable fees and expenses of counsel employed by the
Bonding Company).
SECTION 16. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, WITHOUT REGARD
TO ITS CONFLICT OF LAWS DOCTRINE. EACH OF THE OBLIGORS HEREBY IRREVOCABLY
CONSENTS TO THE PERSONAL JURISDICTION OF ANY COURT LOCATED IN THE DISTRICT OF
COLUMBIA IN ANY ACTION, CLAIM OR OTHER PROCEEDING ARISING OUT OF ANY DISPUTE IN
CONNECTION WITH THIS AGREEMENT, NEW BONDS AND ANY INDEMNIFICATION AGREEMENT, ANY
RIGHTS OR OBLIGATIONS HEREUNDER OR THEREUNDER, OR THE PERFORMANCE OF SUCH RIGHTS
AND OBLIGATIONS. EACH OF THE OBLIGORS HEREBY IRREVOCABLY CONSENTS TO THE
SERVICE OF A SUMMONS AND COMPLAINT AND OTHER PROCESS IN ANY ACTION, CLAIM OR
PROCEEDING BROUGHT BY THE BONDING COMPANY IN CONNECTION WITH THIS AGREEMENT, ANY
RIGHTS OR OBLIGATIONS HEREUNDER OR THEREUNDER, OR THE PERFORMANCE OF SUCH RIGHTS
AND
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OBLIGATIONS, ON BEHALF OF THEMSELVES AND THEIR PROPERTY, IN THE MANNER SPECIFIED
IN SECTION 11 (PROVIDED, TELECOPY NOTICES MAY NOT BE USED FOR THIS PURPOSE).
NOTHING IN THIS SECTION 16 SHALL AFFECT THE RIGHT OF THE BONDING COMPANY TO
SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR AFFECT THE RIGHT OF
THE BONDING COMPANY TO BRING ANY ACTION OR PROCEEDING AGAINST ANY OF THE
OBLIGORS OR THEIR PROPERTIES IN THE COURTS OF ANY OTHER JURISDICTIONS.
SECTION 17. THE BONDING COMPANY AND EACH OF THE OBLIGORS EACH
HEREBY IRREVOCABLY WAIVES ITS RIGHT TO A JURY TRIAL WITH RESPECT TO ANY ACTION,
CLAIM OR OTHER PROCEEDING ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS
AGREEMENT, ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THEREUNDER, OR THE PERFORMANCE
OF SUCH RIGHTS AND OBLIGATIONS.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed as of the day and year first above written.
XXXXXXXX XXXXXXX CORPORATION,
an Ohio corporation
By: /S/ XXXXXXX X. XXXXX
----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Executive Vice President
XXXXXXXX XXXXXXX CORPORATION,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Executive Vice President
NATIONAL PROJECTS, INC.
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President
and Secretary
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XXXXXXXX XXXXXXX SERVICES, INC.
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Secretary
XXXXXXXX XXXXXXX FINANCIAL COMPANY,
INC.
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Chairman, President
and Secretary
ATASCOSA MINING CO.
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Secretary
CENTENNIAL ENGINEERING, INC.
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Executive Vice President
CF SYSTEMS CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Secretary
CHEMICAL DEMILITARIZATION OF ANNISTON
COMPANY
/s/ Xxxxxxx X. Xxxxx
By:
------------------------
Name: Xxxxxxx X. Xxxxx
Title: Secretary
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JOY MK PROJECTS COMPANY
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President and Secretary
MK CAPITAL COMPANY
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President and Secretary
XX-XXXXXXXX ENGINEERING COMPANY
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Assistant Secretary
XX-XXXXXXXX OF IDAHO COMPANY
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Assistant Secretary
XX-XXXXXXXX OF OAK RIDGE COMPANY
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Assistant Secretary
MK INFRASTRUCTURE CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Secretary
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MK TRAIN CONTROL, INC.
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President and Secretary
NAVASOTA MINING COMPANY, INC.
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Secretary
YAMPA MINING CO.
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Secretary
XXXXXXXX-XXXXXXX COMPANY, INC.
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Chairman and President
XXXXXXXX-XXXXXXX ENGINEERS, INC.
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President and Secretary
XXXXXXXX-XXXXXXX INTERNATIONAL
COMPANY, INC.
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President and Secretary
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SCHEDULES AND EXHIBITS
THE REGISTRANT AGREES TO PROVIDE TO THE
SECURITIES AND EXCHANGE COMMISSION, UPON REQUEST,
WITH COPIES OF THE SCHEDULES AND EXHIBITS HERETO.
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