EXHIBIT 10.1
AMENDMENT NO. 3 AND CONSENT AGREEMENT
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THIS AMENDMENT NO. 3 AND CONSENT AGREEMENT (the "Agreement") is
entered into as of December 8, 1997 by and among ABC Rail Products Corporation
("Rail"), ABC Deco Inc. ("Deco"), and American Systems Technologies, Inc.("AST";
Rail, Deco and AST being, collectively, the "Borrowers"), the financial
institutions named on the signature page hereto (the "Lenders") and American
National Bank and Trust Company of Chicago, as agent for the Lenders (the
"Agent").
RECITALS:
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A. The Agent, the Lenders and the Borrowers have entered into a Second
Amended and Restated Loan and Security Agreement dated as of January 31, 1997
(as heretofore amended, supplemented or otherwise modified, the "Loan
Agreement").
B. The Borrowers have requested that the Agent and the Lenders agree to
amend the Loan Agreement pursuant to the terms and subject to the conditions
hereof.
In consideration of the premises set forth above, the terms and
conditions contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Definitions. Terms defined in the Loan Agreement which are used
herein shall have the same meanings as are set forth in the Loan Agreement for
such terms unless otherwise defined herein.
2. Amendment and Consent. Subject to the complete satisfaction of
all of the conditions set forth in Section 3 below: (a) the Required Lenders
hereby consent, pursuant to the provisions of Subsection 8.17 of the Loan
Agreement, to an amendment of the Subordinated Debt Documents in the form of
Exhibit A attached hereto; and (b) Subsection 8.13(B) of the Loan Agreement is
hereby amended by deleting the reference therein to "$61,530,000" and inserting
in lieu thereof the following: "$63,166,000."
3. Conditions. The terms of Section 2(a) and 2(b) above shall become
effective only when each of the following conditions have been completely, and
substantially concurrently, satisfied as determined by the Agent (the date of
such satisfaction being hereinafter referred to as the "Effective Date"):
(a) Documents. The Agent shall have received each of the
following agreements, instruments and other documents, in each case in form
and substance acceptable to the Agent:
(i) eight (8) copies of this Agreement duly executed and
delivered by each of the Borrowers and the Required Lenders; and
(ii) such other documents, certificates, agreements,
opinions and items as the Agent may request in connection herewith.
(b) Representations and Warranties; No Default. As of the
Effective Date, the representations and warranties contained herein and in
the Loan Agreement shall be true and complete, and no Default or Event of
Default shall exist.
4. Representations, Warranties and Agreements of the Borrowers.
(a) Each of the Borrowers represents and warrants that: (1) the
execution and delivery by such Borrower of this Agreement and the
agreements and instruments contemplated hereby and the performance of each
Borrower's obligations hereunder and thereunder: (i) are within the
corporate powers of each Borrower; (ii) are duly authorized by the Board of
Directors of each Borrower, and, if necessary, the stockholders of each
Borrower; (iii) are not in contravention of the terms of the Charter or By-
Laws of any Borrower, or of any contract, instrument, indenture or other
agreement or undertaking to which any Borrower is a party or by which any
Borrower or any of its property is bound or any judgment, decree or order
applicable to any Borrower; (iv) do not require any governmental consent,
registration or approval or any filing with or notice to any governmental
entity or agency; (v) do not contravene any governmental restriction
binding upon any Borrower; and (vi) will not result in the imposition of
any lien, charge, security interest or encumbrance upon any property of any
Borrower under any indenture, mortgage, deed of trust, loan or credit
agreement or other agreement or instrument to which any Borrower is a party
or by which it or any of its property may be bound or affected; (2) this
Agreement has been duly executed and delivered by each Borrower and
constitutes the legal, valid and binding obligation of each Borrower,
enforceable against each Borrower in accordance with its terms, except as
limited by applicable bankruptcy, reorganization, insolvency or similar
laws affecting the enforcement of creditors' rights generally and except as
limited by general principles of equity; (3) the Loan Agreement, after
giving effect hereto, constitutes the legal, valid and binding obligation
of the Borrowers enforceable against the Borrowers in accordance with its
terms, except as enforcement may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of
creditors' rights generally or by general equitable principles; and (4) as
of the date hereof, and as of the Effective Date, there exists no Default
or Event of Default.
(b) Each of the Borrowers hereby reaffirms all covenants,
representations and warranties made in the Loan Agreement and all other
Financing Agreements. Each of the Borrowers hereby agrees that all
covenants, representations and warranties made in the Loan Agreement and
all other Financing Agreements shall be deemed to have been remade as of
the date hereof and the Effective Date.
5. Reference to the Effect on the Loan Agreement.
(a) On and after the Effective Date, (i) each reference in the
Loan Agreement to "this Agreement," "hereunder," "hereof," "herein," or
words of like import shall mean and be a reference to the Loan Agreement as
amended hereby, and (ii) each reference to the Loan Agreement in all other
Financing Agreements shall mean and be a reference to the Loan Agreement,
as amended hereby.
(b) The Loan Agreement, and all other documents, instruments and
agreements executed and/or delivered in connection therewith, shall remain
in full force and effect, and are hereby ratified and confirmed.
(c) The execution, delivery and effectiveness of this Agreement
shall not operate as a waiver of any right, power or remedy of the Agent or
the Lenders, nor constitute a waiver of, or consent to any departure from,
any provision of the Loan Agreement, or any other documents, instruments
and agreements executed and/or delivered in connection therewith.
6. Governing Law. This Agreement shall be governed by and construed
in accordance with the internal laws (as opposed to conflicts of law provisions)
of the State of Illinois.
7. Headings. Section headings in this Agreement are included herein
for convenience of reference only and shall not constitute a part of this
Agreement for any other purpose.
8. Counterparts. This Agreement may be executed by one or more of
the parties to this Agreement on any number of separate counterparts and all of
said counterparts taken together shall be deemed to constitute one and the same
instrument. Delivery by any party of telecopied copies of executed counterparts
hereof shall constitute execution and delivery hereof by such party.
9. Termination. This Agreement shall cease to be of any effect if
the Effective Date has not occurred on or before December 31, 1997.
IN WITNESS WHEREOF, this Agreement has been duly executed as of the
day and year first above written.
ABC RAIL PRODUCTS CORPORATION
By: /s/ X. Xxxxxxxx XxxXxxxxx
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Title: Executive Vice President --
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Administration and Business Development
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ABC DECO INC.
By: /s/ X. Xxxxxxxx MacDonald
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Title:
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AMERICAN SYSTEMS TECHNOLOGIES, INC.
By: /s/ X. Xxxxxxxx MacDonald
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Title:
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AMERICAN NATIONAL BANK AND TRUST
COMPANY OF CHICAGO, individually and as
Agent
By: /s/ Xxxxxx X. Xxxxxxxx
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Title: Senior Vice President
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BTM CAPITAL CORPORATION
By: /s/ Xxxxx X. Xxxxxxxxx
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Title: V.P.--Region Manager
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LASALLE NATIONAL BANK
By: /s/ Xxxxx Xxxxxx
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Title: Vice President
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NATIONS BANK OF TEXAS, N.A.
By: /s/ Xxxxx Xxxxxxxxxx
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Title: Vice President
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MELLON BANK, N.A.
By: /s/ Xxxxxxx X. Xxxxxxxxxx
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Title: Assistant Vice President
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EXHIBIT A
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See Attached
JDRP Draft of December 8, 1997
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ABC RAIL PRODUCTS CORPORATION
the Company
AND
FIRST TRUST NATIONAL ASSOCIATION
the Trustee
____
SECOND SUPPLEMENTAL INDENTURE
Dated as of December 1, 1997
Supplementing that certain
Indenture
Dated as of January 15, 1997
as heretofore supplemented and amended
through and including the First Supplemental
Indenture dated January 15, 1997
SECOND SUPPLEMENTAL INDENTURE
This SECOND SUPPLEMENTAL INDENTURE dated as of December 1, 1997 (this
"Amendment") is made and entered into by and between ABC RAIL PRODUCTS
CORPORATION, a Delaware corporation (the "Company"), and FIRST TRUST NATIONAL
ASSOCIATION, Chicago, Illinois, a national banking association, as trustee (the
"Trustee") under the Indenture dated as of January 15, 1997 (as heretofore
supplemented and amended through and including the First Supplemental Indenture
dated January 15, 1997, the "Indenture"), between the Company and the Trustee.
Except as otherwise provided herein, capitalized terms used but not defined
herein shall have the meanings assigned to such terms in the Indenture.
RECITALS
WHEREAS, pursuant to Sections 301 and 303 of the Indenture, the Company has
heretofore executed the Officer's Certificate dated as of January 28, 1997 (the
"Officer's Certificate") establishing the provisions of a series of Securities
under the Indenture entitled "9 1/8% Senior Subordinated Notes Due 2004";
WHEREAS, it is currently necessary for the Company to restate its fiscal
year 1996 consolidated financial statements;
WHEREAS, pursuant to Section 901(2) of the Indenture, without the consent
of any Holders, the Company, when authorized by or pursuant to a Board
Resolution, and the Trustee may enter into an indenture or indentures
supplemental to the Indenture, in form satisfactory to the Trustee and the
Company, to, among other things, add to the covenants of the Company for the
benefit of the Holders of all or any series of Securities;
WHEREAS, the Company and the Trustee desire to add to a covenant of the
Company contained in the Officer's Certificate;
WHEREAS, this Amendment has been authorized by a Board Resolution;
WHEREAS, the amendments to the Officer's Certificate that are contemplated
by this Amendment are not otherwise prohibited by Section 902 of the Indenture;
NOW, THEREFORE, in consideration of the premises, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
ARTICLE I AMENDMENTS
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Section 1.1 Definitions. Capitalized terms used in this Article I shall
have the meanings assigned such terms in the Officer's Certificate.
Section 1.2 Consolidated Net Worth. Subparagraph (b) of Paragraph 10 of
the Officer's Certificate is hereby amended to read as follows:
"The Company will maintain Consolidated Net Worth at the end of each
of its fiscal quarters at an amount not less than the sum of (i) $56.6
million, plus (ii) 35% of Consolidated Net Income for each of its
fiscal quarters occurring after October 31, 1996 plus (iii) 85% of the
amount of the net proceeds from the sale of any of the Company's or
its Subsidiaries' capital stock, options or warrants computed on a
cumulative basis;"
ARTICLE II MISCELLANEOUS
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Section 2.1 Severability. If any provision of this Amendment is held to
be in conflict with any applicable statute or rule of law, or is otherwise held
to be unenforceable for any reason whatsoever, such circumstances shall not have
the effect of rendering the provision in question inoperative or unenforceable
in any other part or circumstance, or of rendering any other provision or
provisions herein contained invalid, inoperative or unenforceable to any extent
whatsoever.
The invalidity of any one or more phrases, sentences, clauses or Sections
of this Amendment shall not affect the remaining portions of this Amendment, or
any part hereof.
Section 2.2 Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of Illinois.
Section 2.3 Execution in Counterparts. This Amendment may be executed in
several counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto had caused this Amendment to be
executed and attested in their names by their respective duly authorized
officers, all as of the day and year first above written.
ABC RAIL PRODUCTS CORPORATION
By:________________________________
Title:_____________________________
(SEAL)
Attest:
__________________________
Title:____________________
FIRST TRUST NATIONAL ASSOCIATION, as
Trustee
By:_________________________________
Title:______________________________
(SEAL)
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Attest:
__________________________
Title:____________________
