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EX 4.2
EXECUTION COPY
TRANSPORTATION MANUFACTURING OPERATIONS, INC.
AMENDMENT NO. 1
TO
CREDIT AGREEMENT
DATED AS OF SEPTEMBER 30, 1996
This Amendment No. 1 (this "Amendment") is dated as of December 17, 1996
and entered into by and between TRANSPORTATION MANUFACTURING OPERATIONS, INC.
(the "Borrower") and NBD BANK (the "Bank") and is made with reference to the
Credit Agreement dated as of September 30, 1996, by and between the Borrower and
the Bank (the "Credit Agreement"); the Bank has entered into the Credit
Agreement and this Amendment in its capacities as Administrative Agent, Swing
Line Bank, Issuing Lender and sole Lender thereunder. Capitalized terms used
herein without definition shall have the meanings ascribed thereto in the Credit
Agreement.
RECITALS: The Borrower and the Bank desire to amend the Credit Agreement to
facilitate the primary syndication of the Credit Agreement, which will benefit
both the Borrower and the Bank;
ACCORDINGLY, in consideration of the premises and the agreements and
provisions contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Borrower and the
Bank agree as follows:
Section 1. AMENDMENT TO CREDIT AGREEMENT.
1.1 Section 1.01 of the Credit Agreement is amended by amending and
restating the definition of "Majority Lenders" in its entirety as follows:
"Majority Lenders" means at any time the Lenders having at
least 66-2/3% of the Commitments, or, if the Commitments shall then
have been terminated, Lenders holding at least 66-2/3% of the then
aggregate unpaid principal amount of the Advances held by Lenders
(provided that, for purposes hereof, neither the Borrower, nor any of
its Affiliates, if a Lender, shall be included in (i) the Lenders
holding such amount of the Advances or having such amount of the
Commitments or (ii) determining the aggregate unpaid principal amount
of the Advances or the total Commitments; and provided, further, no
Lender which shall have failed to fund its pro rata share of any
Advance requested by the Borrower or any Swing Line Loan as requested
by the Administrative Agent which such Lender is obligated to fund
under the terms of this Agreement shall be included in (i) the Lenders
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holding such amount of the Advances or having such amount of the
Commitments or (ii) determining the aggregate unpaid principal amount
of the Advances or the total Commitments for so long as such failure
has not been cured).
1.2 Section 2.03(a) of the Credit Agreement is amended by adding thereto
following clause (b) thereof and before the word "exceed" the phrase "plus (c)
the amount of the Swing Line Bank's then outstanding Letter of Credit Exposure",
1.3 Section 2.07 of the Credit Agreement is amended by deleting the
references to "Section 8.04(b)" in subsections (b) and (c) thereof and
substituting therefor in each case a reference to "Section 8.04(D)",
1.4 Section 5.02(i) of the Credit Agreement is amended by amending and
restating clause (i) thereof in its entirety as follows:
(i) the Borrower may make the Xxxx Distribution, provided that
(a) any portion of the Xxxx Distribution not paid on the Effective Date
shall be paid in one or more payments on or before Xxxxx 00, 0000, (x)
on the date of each such payment, no Event of Default or Potential
Event of Default shall have occurred or be continuing, or would result
therefrom, and (c) prior to the date of each such payment after the
Effective Date, the Borrower shall deliver to the Administrative Agent
a financial condition certificate signed by the chief financial officer
or treasurer of the Borrower certifying that the Borrower is Solvent
after giving effect to such payment and attaching thereto financial
projections and a pro forma "fair value" balance sheet of the Borrower
and its Subsidiaries supporting such certification, which certificate
and attachments shall be in form and substance satisfactory to each of
the Lenders; and
1.5 Section 5.02(l) of the Credit Agreement is amended by deleting from
clause (g) thereof the words "and other operating arrangements".
1.6 Section 6.01 of the Credit Agreement is amended by adding in clause
(ii) of the remedial provisions thereof after the words "Administrative Agent"
and before the word "may" the phrase "with the consent of Majority Lenders".
1.7 Section 7.12 of the Credit Agreement is amended by deleting the words
"Loan Documents" from the first and third sentences thereof and substituting
therefor in each case the word "Guaranties" and by deleting the words "Loan
Document" from the second sentence thereof and substituting therefor the word
"Guaranty".
1.8 Section 8.04 of the Credit Agreement is amended by redesignating
subsection (D) thereof as subsection (E) and by adding a new subsection (D)
thereto to read as follows:
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(D) Funding Indemnification. If any payment of a Eurodollar Rate
Advance occurs on a date which is not the last day of the applicable
Interest Period, whether because of acceleration, prepayment, or
otherwise, or a Eurodollar Rate Advance is not made on the date
specified by the Borrower for any reason other than default by the
Lenders, the Borrower shall indemnify each Lender for any loss,
cost or expense incurred by it resulting therefrom, including, without
limitation, any loss, cost or expense in liquidating or employing
deposits acquired to fund or maintain the Eurodollar Rate Advance.
Section 2. CONDITIONS TO EFFECTIVENESS.
This Amendment shall become effective as of the date hereof when, and only
when, the Bank shall have received a counterpart of this Amendment executed by
the Borrower and shall have delivered to the Borrower a counterpart of this
Amendment executed by the Bank and the Bank shall have received a counterpart
of the Consent attached hereto executed by the Subsidiary Guarantors.
Section 3. REPRESENTATIONS AND WARRANTIES OR BORROWER.
To induce the Bank to enter into this Amendment, to amend the Credit
Agreement as provided herein and to effect the primary syndication contemplated
by the Credit Agreement, the Borrower hereby represents and warrants that:
(a) The Borrower has full power, authority and legal right to execute and
deliver this Amendment and to perform the Credit Agreement as amended hereby,
and each of the Subsidiary Guarantors has full power, authority and legal right
to execute and deliver the Consent attached hereto (the "Consent"). The Borrower
has duly executed and delivered this Amendment, and each of the Subsidiary
Guarantors has duly executed and delivered the Consent.
(b) This Amendment and the Credit Agreement as amended hereby are the
legal, valid and binding obligations of the Borrower enforceable against the
Borrower in accordance with their respective terms, and the Consent is the
legal, valid and binding obligation of each of the Subsidiary Guarantors,
enforceable against each such Subsidiary Guarantor in accordance with its terms,
in each case as enforceability may be subject to the effect of applicable
bankruptcy, insolvency, arrangement, moratorium and other similar laws affecting
creditors' rights generally and to the application of general principles of
equity.
(c) No event has occurred and is continuing or will result from the
execution and delivery of this Amendment that constitutes an Event of Default or
Potential Event of Default.
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Section 4. REFERENCE TO AND EFFECT ON THE CREDIT AGREEMENT.
(a) Upon the effectiveness of Section 1 hereof, on and after the date
hereof, each reference in the Credit Agreement to "this Credit Agreement,"
"hereunder," "hereof" "herein" or words of like import referring to the Credit
Agreement, and each reference in the other Loan Documents to the "Credit
Agreement," "thereunder," "thereof" or words of like import referring to the
Credit Agreement, shall mean and be a reference to the Credit Agreement as
amended hereby.
(b) The Credit Agreement, as amended hereby, 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) Except as expressly provided herein, the execution, delivery and
effectiveness of this Amendment shall not operate as a waiver of any right,
power or remedy of the Administrative Agent, the Lenders or any Issuing Lender,
nor constitute a waiver of any provision of the Credit Agreement or any other
documents, instruments and agreements executed and/or delivered in connection
therewith.
Section 5. GOVERNING LAW. This Amendment shall be governed by and
construed in accordance with the internal laws (as opposed to the conflict of
law provisions) of the State of Illinois.
Section 6. HEADINGS. Section headings in this Amendment are included herein
for convenience of reference only and shall not constitute a part of this
Amendment for any other purpose.
Section 7. COUNTERPARTS. This Amendment may be executed by one or more of
the parties to the Amendment on any number of separate counterparts and all of
said counterparts taken together shall be deemed to constitute one and the same
instrument. Signature pages may be detached from multiple separate counterparts
and attached to a single counterpart so that all signature pages are physically
attached to the same documents.
IN WITNESS WHEREOF, this Amendment has duly executed and delivered on the
date first above written.
TRANSPORTATION MANUFACTURING
OPERATIONS, INC.
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Treasurer
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NBD BANK, as Administrative Agent,
Swing Line Bank, Issuing Lender
and Lender
By: /s/ Xxxxx X. Junior
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Name: Xxxxx X. Junior
Title: Vice President
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CONSENT
Dated as of December 17, 1996
Each of the undersigned, as Guarantor under the Subsidiary Guaranty dated
as of September 30, 1996 (the "Guaranty") in favor of the Administrative Agent
for the benefit of the Lenders parties to the Credit Agreement referred to in
the foregoing Amendment, hereby consents to the Amendment and hereby confirms
and agrees that the Guaranty is, and shall continue to be, in full force and
effect and is hereby ratified and confirmed in all respects except that, upon
the effectiveness of, and on and after the date of, the Amendment, each
reference in the Guaranty to the "Credit Agreement," "thereunder," "thereof" or
words of like import shall mean and be a reference to the Credit Agreement as
amended by the Amendment.
BUSLEASE, INC.
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Treasurer
XXXXXXX BUS SALES, INC.
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Treasurer
MCI ACCEPTANCE CORP.
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Treasurer
MOTOR COACH INDUSTRIES, INC.
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Treasurer
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MOTOR COACH INDUSTRIES-CHINA, INC.
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Treasurer
TRANSIT BUS INTERNATIONAL, INC.
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Treasurer
CUSTOM ASSETS CORP.
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Treasurer
TRANSPORT TECHNOLOGY CORPORATION
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Treasurer
UNIVERSAL COACH PARTS, INC.
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Treasurer
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