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EXHIBIT 10.23
FIRST AMENDMENT AND WAIVER AGREEMENT dated
as of February 28, 1997, among WESTINGHOUSE AIR
BRAKE COMPANY, a Delaware corporation (the
"Borrower"); W&P HOLDING CORP.; PULSE ELECTRONICS,
INC.; RFPC HOLDING CORPORATION; TFL, INC.; VAPOR
CORP.; RAILROAD FRICTION PRODUCTS CORPORATION; the
financial institutions listed on the signature pages
hereto (together with the Swingline Lender (as
defined below), the "Lenders"); THE CHASE MANHATTAN
BANK, as successor to Chemical Bank, as swingline
lender (in such capacity, the "Swingline Lender")
and as agent (in such capacity, the "Administrative
Agent") and collateral agent (in such capacity, the
"Collateral Agent") for the Lenders; THE CHASE
MANHATTAN BANK DELAWARE, as successor to Chemical
Bank Delaware, as issuing bank (in such capacity,
the "Issuing Bank"); and THE BANK OF NEW YORK
("BNY") as documentation agent (in such capacity the
"Documentation Agent") for the Lenders.
A. The parties hereto have agreed, subject to the terms and
conditions hereof, to increase the Commitments and make new advances under, and
make other amendments to and waivers of, the Credit Agreement, dated as of
January 31, 1995, amended and restated as of February 15, 1995, amended and
restated as of June 9, 1995, and amended and restated as of September 19, 1996
(the "Credit Agreement"), among the Borrower; the financial institutions party
thereto; the Swingline Lender; the Administrative Agent; the Collateral Agent;
the Issuing Bank; and the Documentation Agent; by amending the Credit Agreement
as set forth herein.
B. Capitalized terms used and not otherwise defined herein
shall have the meanings assigned to such terms in the Credit Agreement.
Accordingly, the parties hereto hereby agree as follows:
SECTION 1. Amendment of Credit Agreement. (a) The Preamble of
the Credit Agreement is hereby amended by deleting the amount "$125,000,000"
appearing in the seventh line of the first paragraph thereof and substituting
therefor the amount "$140,000,000".
(b) Section 1.01 of the Credit Agreement is hereby amended by
adding, in proper alphabetical order, the following defined term:
"First Amendment Effective Date" shall mean the date the
First Amendment dated as of February 28, 1997 to this Agreement shall
become effective in accordance with its terms.
(c) Section 1.01 of the Credit Agreement is hereby amended by
deleting the defined term "Stock Repurchases" in its entirety and substituting
therefor the following:
"Stock Repurchases" shall mean (a) the repurchase of Common
Stock during the period from November 9, 1995 through November 9,
1996, in the open market or in private negotiated transactions, for an
aggregate purchase price for all such repurchases not in excess of
$11,000,000, (b) the repurchases of Common Stock during the period
from the First Amendment Effective Date through April 30, 1997, from
SIH, for an aggregate purchase price for all such repurchases by the
Borrower not in excess of the lesser of (i) $46,000,000 and (ii) 40%
of the aggregate purchase price for all such purchases by the Borrower
and a group of investors, led by Vestar Capital Partners (the "Vestar
Investment Group"), and (c) the financing of all or a portion of such
repurchases with the proceeds of Revolving Credit Borrowings.
(d) Schedule 2.01 to the Credit Agreement is hereby amended
and restated to read in its entirety as set forth in Schedule 2.01 hereto.
SECTION 2. Waivers. (a) The Required Lenders hereby waive the
provisions of Section 2.12(d) of the Credit Agreement to the extent, but only
to the extent, that such provisions require the prepayment by the Borrower of
the Loans in an aggregate principal amount equal to 50% of Excess Cash Flow
with respect to the fiscal year ended December 31, 1996.
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(b) The Required Lenders hereby waive the provisions of
Sections 5.11(b) and 5.12 of the Credit Agreement to the extent, but only to
the extent, that such provisions (i) apply to the Vapor Mortgage and (ii) shall
be complied with on or before March 31, 1997.
SECTION 3. Representations and Warranties. The Borrower and
each Guarantor hereby represents and warrants to each Lender, the
Administrative Agent, the Collateral Agent, the Documentation Agent and the
Issuing Bank, on and as of the date hereof and as of the Effective Date, as
follows:
(a) The execution, delivery and performance by each Loan
Party of this Amendment Agreement (i) has been duly authorized by all
requisite corporate and, if required, stockholder action and (ii) will
not (A) violate (I) any provision of law, statute, rule or regulation,
other than any law, statute, rule or regulation, the violation of
which will not result in a Material Adverse Effect, or of the
certificate or articles of incorporation or other constitutive
documents or by-laws of the Borrower or any Guarantor, (II) any order
of any Governmental Authority or (III) any material provision of any
material indenture, agreement or other instrument to which the
Borrower or any Guarantor is a party or by which any of them or any of
their property (including the Mortgaged Properties) or assets is or
may be bound, (B) be in conflict with, result in a breach of,
constitute (along or with notice or lapse of time or both) a default
under or give rise to any right to accelerate any material obligation
on the party of the Borrower or any Guarantor, under any such
indenture, agreement or other instrument or (C) result in the creation
under the Security Documents) upon or with respect to any property or
assets now owned or hereafter acquired by the Borrower or any
Subsidiary.
(b) The Amendment Agreement has been duly executed and
delivered by each Loan Party and constitutes legal, valid and binding
obligations of the Borrower and such Loan Party enforceable against
the Borrower and such Loan Party in accordance with its terms, subject
to bankruptcy, insolvency, reorganization, fraudulent transfer,
moratorium or other similar laws affecting creditors' rights generally
and to general principles of equity (regardless of whether such
enforceability is considered in a proceeding at law or in equity) and
an implied covenant of good faith and fair dealing.
(c) No action, consent or approval of, registration or filing
with or any other action by any Governmental Authority is or will be
required in connection with the execution, delivery and performance of
the Amendment Agreement or the consummation of the transactions
contemplated by the Amendment Agreement, except for such as have been
made or obtained and are in full force and effect.
(d) No Default or Event of Default has occurred and is
continuing. No Default or Event of Default will occur or be continuing
immediately following the Effective Date after giving effect to the
transactions contemplated by the Amendment Agreement.
The representations and warranties contained in this Section 3 shall survive
the making by the Lenders of the Loans under this Amendment Agreement, and
shall continue in full force and effect as long as the principal of or any
accrued interest on any Loan or any fee or any other amount payable under this
Amendment Agreement is outstanding and unpaid and so long as the Commitments
under this Amendment Agreement have not been terminated.
SECTION 4. Effectiveness. This Amendment Agreement shall
become effective only upon satisfaction of the following conditions precedent
on or prior to April 30, 1997 (the first date upon which each such condition
has been satisfied being herein called the "Effective Date"):
(a) The Administrative Agent shall have received duly
executed counterparts of this Amendment Agreement, in each case
bearing the authorized signatures of the Borrower, each of the
Guarantors, the Required Lenders and each Revolving Credit Lender and
Revolving Credit Commitment of which has been increased pursuant to
this Amendment Agreement.
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(b) The Administrative Agent shall have received a
certificate of a Financial Officer of the Borrower, dated the
Effective Date, to the effect that the representations and warranties
set forth in Section 3 hereof are true and correct on and as of the
Effective Date.
(c) The Collateral Agent shall have received fully executed
copies of amendments or supplements, as applicable, to each of the
Mortgages (other than the Vapor Mortgage), in form and substance
satisfactory to it, that grant the Collateral Agent a security
interest in all of the real property of the Borrower or any such
Subsidiary that is a Domestic Subsidiary, and each such document
(including each Uniform Commercial Code financing statement) required
by law or reasonably requested by the Administrative Agent to be
filed, registered or recorded in order to create in favor of the
Collateral Agent for the benefit of the Secured Parties a valid, legal
and perfected first-priority security interest in and lien on the
Collateral (subject to any Lien expressly permitted by Section 6.02 of
the Credit Agreement) described in such agreement shall have been
delivered to the Collateral Agent.
(d) The Collateral Agent shall have received an endorsement
to the title policies insuring each Mortgage (other than the Vapor
Mortgage) as a valid first lien on the Mortgaged Property, free of
Liens other than Liens permitted by Section 6.02 of the Credit
Agreement.
(e) The Administrative Agent shall have received evidence
satisfactory to it that the holders of the Senior Unsecured Notes
shall have consented to the Stock Repurchase from SIH and that, after
giving effect to such Stock Repurchase and other stock purchases, no
default or event of default exists with respect to the Senior
Unsecured Notes.
(f) The Administrative Agent shall have received, for its own
account and the account of the Lenders, the fees set forth in the Fee
Letter dated as of the date hereof between the Borrower and the
Administrative Agent.
(g) All legal matters incident to this Agreement, the Amended
Credit Agreement, the borrowings and extensions of credit hereunder
and thereunder shall be satisfactory to the Lenders, to the Issuing
Bank, and to Cravath, Swaine & Moore, counsel for the Administrative
Agent.
SECTION 5. APPLICABLE LAW. THIS AMENDMENT AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
SECTION 6. Counterparts. This Amendment Agreement may be
executed in any number of counterparts, each of which shall constitute an
original but all of which when taken together shall constitute but one
agreement. Delivery of an executed counterpart of a signature page by facsimile
transmission shall be effective as delivery of a manually executed counterpart
of this Amendment Agreement.
SECTION 7. Guarantors. Each Guarantor hereby acknowledges and
agrees to (i) be bound by the terms of this Amendment Agreement and (ii) the
amendments effected hereby.
SECTION 8. Security Documents. The Security Documents are
hereby acknowledged and reaffirmed and shall remain operative and in full force
and effect each in accordance with its terms and with the terms of the Credit
Agreement.
SECTION 9. Loan Documents. This Amendment shall be a Loan
Document for all purposes.
SECTION 10. Notices. All notices hereunder shall be given in
accordance with the provisions of Section 9.01 of the Credit Agreement.
SECTION 11. Headings. Section headings used herein are for
convenience of reference only, are not part of this Amendment Agreement and are
not to affect the construction of, or to be taken into consideration in
interpreting, this Amendment Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment
Agreement to be duly executed by their respect duly authorized officers as of
the day and year first above written.
WESTINGHOUSE AIR BRAKE COMPANY,
By: ________________________________
Name:
Title:
W&P HOLDING CORP.,
By: ________________________________
Name:
Title:
PULSE ELECTRONICS, INC.,
By: ________________________________
Name:
Title:
RFPC HOLDING CORPORATION
By: ________________________________
Name:
Title:
TFL, INC.,
By: ________________________________
Name:
Title:
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VAPOR CORP.,
By: ________________________________
Name:
Title:
RAILROAD FRICTION PRODUCTS CORPORATION,
By: ________________________________
Name:
Title:
THE CHASE MANHATTAN BANK, individually and as
Administrative Agent, Collateral Agent and
Swingline Lender,
By: ________________________________
Name:
Title:
THE CHASE MANHATTAN BANK DELAWARE, as Issuing Bank,
By: ________________________________
Name:
Title:
THE BANK OF NEW YORK, individually and as
Documentation Agent,
By: ________________________________
Name:
Title:
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THE BANK OF NOVA SCOTIA,
By: ________________________________
Name:
Title:
THE BANK OF TOKYO/MITSUBISHI TRUST COMPANY,
By: ________________________________
Name:
Title:
CAISSE NATIONALE DE CREDIT AGRICOLE,
By: ________________________________
Name:
Title:
COMERICA BANK,
By: ________________________________
Name:
Title:
CREDIT LYONNAIS NEW YORK BRANCH,
By: ________________________________
Name:
Title:
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CREDIT LYONNAIS CAYMAN ISLAND BRANCH,
By: ________________________________
Name:
Title:
CREDIT SUISSE,
By: ________________________________
Name:
Title:
By: ________________________________
Name:
Title:
THE FIRST NATIONAL BANK OF BOSTON,
By: ________________________________
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO,
By: ________________________________
Name:
Title:
THE FUJI BANK, LIMITED NEW YORK BRANCH
By: ________________________________
Name:
Title:
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THE LONG-TERM CREDIT BANK OF JAPAN, LIMITED,
NEW YORK BRANCH
By: ________________________________
Name:
Title:
MANUFACTURERS & TRADERS TRUST COMPANY,
By: ________________________________
Name:
Title:
MELLON BANK, N.A.
By: ________________________________
Name:
Title:
MITSUI LEASING (USA) INC.,
By: ________________________________
Name:
Title:
THE SANWA BANK, LIMITED, NEW YORK BRANCH,
By: ________________________________
Name:
Title:
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SOCIETE GENERALE, NEW YORK BRANCH,
By: ________________________________
Name:
Title:
THE SUMITOMO TRUST & BANKING CO., LTD.,
NEW YORK BRANCH,
By: ________________________________
Name:
Title:
UNION BANK OF CALIFORNIA,
By: ________________________________
Name:
Title:
UNITED STATES NATIONAL BANK OF OREGON,
By: ________________________________
Name:
Title:
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