EXHIBIT 10.35
AMENDMENT NO. 3 TO AMENDED AND RESTATED
REFINANCING CREDIT AGREEMENT AND RESIGNATION OF AND SUCCESSOR TO AGENT
THIS AMENDMENT NO. 3 (this "Amendment") is dated as of July
18, 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 INCLUDING LASALLE BANK
NATIONAL ASSOCIATION ("LaSalle") and ABN AMRO BANK N.V. ("ABN AMRO"), 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 and Amendment No. 2 to Amended and
Restated Refinancing Credit Agreement, dated as of March 30, 2001 (as amended,
the "Credit Agreement").
BACKGROUND
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The parties hereto desire to amend the Credit Agreement as
hereinafter provided to (i) replace ABN AMRO Bank as Agent under, and as defined
in, the Credit Agreement, (ii) waive the requirement for thirty (30) days' prior
notice thereof and (iii) otherwise amend the Credit Agreement to facilitate the
replacement of the Agent.
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
AMENDMENTS1.
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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 Amendments to Existing Definitions. (a) Section 1.1 [Definitions]
of the Credit Agreement is hereby amended by deleting the definitions of
"Agent", "Issuing Bank", and "Swingline Bank" in their entirety and inserting in
lieu thereof the following:
"AGENT shall mean LaSalle Bank National Association,
its successors and assigns."
"ISSUING BANK shall mean ABN AMRO Bank N.V., Chase
Manhattan Bank USA, N.A. 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."
"SWINGLINE BANK shall mean LaSalle."
(b) References in the Credit Agreement to "ABN AMRO", "ABN
AMRO Bank" or "ABN AMRO Bank N.V.", (i) in the preamble of the Credit Agreement,
(ii) as the Swingline Bank in the definition of "Commitment", (iii) in Section
10.1 of the Credit Agreement, (iv) in Section 10.11 of the Credit Agreement, and
(v) in all other provisions of the Credit Agreement, except for Section 2.9 of
the Credit Agreement and the definition of "Issuing Bank", are hereby deemed to
be references to "LaSalle" unless the context shall clearly otherwise require.
1.03 New Definitions. Section 1.1 [Definitions] of the Credit Agreement
is hereby amended by adding the following definitions in the appropriate
alphabetical order in such section:
"LASALLE shall mean LaSalle Bank National Association."
"VAPOR MANAGEMENT shall mean the managers of Vapor Power, a
division of Vapor Corporation, or an entity controlled by such managers."
"VAPOR POWER SALE shall mean the sale of Vapor Power, a
division of Vapor Corporation, to Vapor Management."
1.04 Appointment of Successor Agent. The Borrower and Banks acknowledge
that ABN AMRO, pursuant to an Assignment and Assumption Agreement dated as of
the date hereof, has assigned to and LaSalle has assumed from ABN AMRO all of
ABN AMRO's rights and obligations as a Bank under the Credit Agreement, as more
fully set forth therein and, accordingly, LaSalle is one of the Bank parties to
the Credit Agreement. ABN AMRO hereby provides to Borrower and the Banks, and
the Borrower and the Banks hereby acknowledge receipt from ABN AMRO of, written
notice of its resignation as Agent. The Borrower and the Required Banks hereby
waive any requirement that ABN AMRO provide to Borrower or Banks 30 days prior
notice of such resignation under Section 10.14 of the Credit Agreement and the
Required Banks hereby appoint LaSalle to be Agent under, and as such term is
used and defined in, the Credit Agreement and Borrower hereby consents to the
appointment by the Required Banks of LaSalle as the successor Agent as such term
is used and defined in the Credit Agreement. Accordingly, the Banks and the
Borrower hereby acknowledge that: LaSalle shall, without any further action, be
deemed to be substituted as the Agent for ABN AMRO in such capacity on all the
other Loan Documents.
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.
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 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 the due authorization of such Loan Party to enter
into this Amendment and of the officer 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
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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 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.
4.05 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]
[SIGNATURE PAGE 1 OF 21 TO AMENDMENT NO. 3]
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;
VAPOR CORPORATION; MOTIVEPOWER CANADA
CORPORATION; WABTEC DISTRIBUTION
COMPANY; MOTIVEPOWER, INC.; YOUNG
TOUCHSTONE COMPANY; WABTEC ENGINE
SYSTEMS COMPANY; WABTEC HOLDING CORP.;
WABTEC CORPORATION
By: (SEAL)
------------------------------
Name:
Title: Vice President of each of the
above listed companies
[SIGNATURE PAGE 2 OF 21 TO AMENDMENT NO. 3]
[BANKS AND AGENTS]
ABN AMRO BANK N.V. individually, as an
Issuing Bank and as resigning Agent,
Bookrunner, and Co-Syndication Agent
By:
-----------------------------------
Name:
Title:
By:
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Name:
Title:
[SIGNATURE PAGE 3 OF 22 TO AMENDMENT NO. 3]
LASALLE BANK NATIONAL ASSOCIATION,
individually and as successor Agent,
Bookrunner, and Co-Syndication Agent
By:
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Name:
Title:
[SIGNATURE PAGE 4 OF 22 TO AMENDMENT NO. 3]
MELLON BANK, N.A., individually and as
Documentation Agent
By:
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Name:
Title:
[SIGNATURE PAGE 5 OF 22 TO AMENDMENT NO. 3]
THE CHASE MANHATTAN BANK, individually and as
Administrative Agent
By:
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Name:
Title:
[SIGNATURE PAGE 6 OF 22 TO AMENDMENT NO. 3]
NATIONAL CITY BANK OF PENNSYLVANIA
By:
-----------------------------------------
Name:
Title:
[SIGNATURE PAGE 7 OF 22 TO AMENDMENT NO. 3]
PNC BANK, NATIONAL ASSOCIATION
By:
-----------------------------------------
Name:
Title:
[SIGNATURE PAGE 8 OF 22 TO AMENDMENT NO. 3]
FLEET NATIONAL BANK (formerly BankBoston, N.A.)
By:
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Name:
Title:
[SIGNATURE PAGE 9 OF 22 TO AMENDMENT NO. 3]
U.S. BANK NATIONAL ASSOCIATION
By:
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Name:
Title:
[SIGNATURE PAGE 10 OF 22 TO AMENDMENT NO. 3]
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. 3]
BANK ONE, N.A.
By:
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Name:
Title:
[SIGNATURE PAGE 12 OF 22 TO AMENDMENT NO. 3]
FIRST UNION NATIONAL BANK
By:
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Name:
Title:
[SIGNATURE PAGE 13 OF 22 TO AMENDMENT NO. 3]
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. 3]
THE BANK OF NOVA SCOTIA
By:
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Name:
Title:
[SIGNATURE PAGE 15 OF 22 TO AMENDMENT NO. 3]
BANK OF TOKYO-MITSUBISHI TRUST CO.
By:
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Name:
Title:
[SIGNATURE PAGE 16 OF 22 TO AMENDMENT NO. 3]
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. 3]
CREDIT LYONNAIS NEW YORK BRANCH
By:
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Name:
Title:
[SIGNATURE PAGE 18 OF 22 TO AMENDMENT NO. 3]
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. 3]
THE DAI-ICHI KANGYO BANK, LTD.
By:
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Name:
Title:
[SIGNATURE PAGE 20 OF 22 TO AMENDMENT NO. 3]
MANUFACTURERS AND TRADERS TRUST COMPANY
By:
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Name:
Title:
[SIGNATURE PAGE 21 OF 22 TO AMENDMENT NO. 3]
SUNTRUST BANK
By:
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Name:
Title:
[SIGNATURE PAGE 22 OF 22 TO AMENDMENT NO. 3]
CHASE MANHATTAN BANK USA, N.A., as an Issuing
Bank
By:
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Name:
Title:
