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EXHIBIT 4.4
TRANSPORTATION MANUFACTURING OPERATIONS, INC.
AMENDMENT NO. 3
to
CREDIT AGREEMENT
Dated as of September 25, 1997
This Amendment No. 3 to Credit Agreement (this "Amendment") is dated as
of September 25, 1997 and entered into by and among TRANSPORTATION
MANUFACTURING OPERATIONS, INC., a Delaware corporation (the "Borrower"), the
banks set forth on the signature pages hereof (collectively, the "Lenders" and
individually, a "Lender"), and THE FIRST NATIONAL BANK OF CHICAGO, as
Administrative Agent for the Lenders.
R E C I T A L S:
A. The Borrower, certain Subsidiaries of the Borrower, as guarantors
(the "Guarantors"), the Lenders (other than Allied Irish Bank, p.l.c., Cayman
Islands Branch ("Allied Irish Bank")) and the Administrative Agent are parties
to that certain Credit Agreement dated as of September 30, 1996, as amended by
Amendment No. 1 thereto dated as of December 17, 1996 and Amendment No. 2
thereto dated as of May 23, 1997 (the "Credit Agreement"). Capitalized terms
used herein and not otherwise defined herein shall have the meanings attributed
to such terms in the Credit Agreement.
B. The Borrower has requested that the aggregate Commitments under the
Credit Agreement be increased to $170,000,000, and the parties intend that
Allied Irish Bank become a party to the Credit Agreement as a Lender.
C. The Borrower has entered into Stage I of the transaction (the
"Transaction") described in Exhibit A attached to the Waiver and Release dated
August 15, 1997, among the Borrower, the Majority Lenders and the Agent (the
"Waiver"). As part of Stage I of the Transaction, in addition to the
capitalization described in paragraph 2 of Exhibit A to the Waiver, the
Borrower caused a letter of credit to be issued for the Borrower's account and
for the benefit of General Electric Capital Corporation, as a condition of its
credit agreement with MCII Funding Inc. ("MFI"), in the amount of $5,000,000 to
cover credit losses on loans, leases and other receivables purchased by MFI and
to support MFI's obligations under such credit agreement. The Borrower still
contemplates the subsequent investment in equity capital of MCII Financial
Services Inc. in Stage II and/or one or more subsequent stages of the
Transaction, as described in Exhibit A to the Waiver.
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 parties hereto
agree as follows:
Section 1. AMENDMENTS TO CREDIT AGREEMENT.
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Effective as of the Amendment Effective Date (as defined below) and
subject to the satisfaction of the conditions precedent set forth in Section 3
below, the Credit Agreement is hereby amended as follows:
(a) The definition of "Lenders" set forth in Section 1.01 of the
Credit Agreement is amended in its entirety to read as follows:
"Lenders" means (a) each of the lenders listed on the signature
pages hereof and each Eligible Assignee that shall become a party
hereto pursuant to Section 8.07 or pursuant to an amendment to this
Agreement and (b) the Swing Line Bank.
(b) The first sentence of Section 2.01 of the Credit Agreement is
amended in its entirety to read as follows:
Subject to the terms and conditions of this Agreement and in
reliance upon the representations and warranties of the Borrower herein
set forth, each Lender severally agrees to lend to the Borrower from
time to time during the period on and after the Effective Date to but
excluding the Termination Date, Advances in an aggregate outstanding
principal amount not at any time exceeding the amount set opposite such
Lender's name on SCHEDULE 2.01 hereto as of the effective date of
Amendment No. 3 to this Agreement, or, if such Lender has entered into
any Assignment and Acceptance after such date, set forth for such
Lender in the Register maintained by the Administrative Agent pursuant
to Section 8.07(c), as such amount may be reduced pursuant to Section
2.06 (such Lender's "Commitment").
(c) Section 2.04(a) of the Credit Agreement is amended by adding at
the end thereof the following:
From and after the effective date of Amendment No. 3 to this
Agreement, the letter of credit issued by The First National Bank of
Chicago ("First Chicago") and described on SCHEDULE 2.04(a) hereto (the
"Existing Letter of Credit") shall be deemed to constitute a Letter of
Credit issued by First Chicago as the Issuing Lender, and the Lenders
shall be deemed irrevocably to have purchased a ratable participation
therein, all pursuant to this Section 2.04, except that the third
sentence of this Section 2.04(a) shall not apply to the Existing Letter
of Credit. A letter of credit fee shall accrue with respect to the
Existing Letter of Credit as provided in Section 2.04(e)(ii) from and
after the effective date of Amendment No. 3 to this Agreement.
(d) Section 5.02(c)(iv) of the Credit Agreement is amended by deleting
the second proviso thereto in its entirety and substituting therefor the
following:
provided, further, that such aggregate outstanding amount may
include up to $25,000,000 of Investments by the Borrower in MCII
Financial Services Inc.
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("MFS"), an entity formed for purposes of operating as a finance
company, through its Subsidiary, MCII Funding Inc. ("MFI"), and in
which members of the Xxxxx Xxxxxx family and Xxxx or any of its
Subsidiaries may also be investors, which Investments may consist of
(x) up to $20,000,000 of debt or equity interests (or any combination
thereof) issued by MFS, the consideration for which may be cash or
other property valued at fair market value, and (y) a letter of credit
in an amount up to $5,000,000 issued for the account of the Borrower
and for the benefit of MFI or its lender to cover credit losses on
loans, leases and other receivables purchased by MFI and to support
MFI's obligations to such lender;
(e) Section 5.02(e)(iv) of the Credit Agreement is amended by deleting
the word "Newco" therefrom and substituting therefor "MCII Funding Inc."
(f) The Credit Agreement is amended by deleting SCHEDULE 1.01 thereto
in its entirety and substituting therefor AMENDED SCHEDULE 1.01 in the form
attached hereto and by adding thereto a new SCHEDULE 2.01 and a new SCHEDULE
2.04(a) in the respective forms attached hereto.
Section 2. ALLIED IRISH BANK AS A LENDER; SANWA BANK AS AN EXITING
LENDER.
(a) As of the Amendment Effective Date, Allied Irish Bank shall be
bound by the terms of the Credit Agreement, as amended hereby, and shall have
all of the rights and obligations of a Lender under the Loan Documents. Allied
Irish Bank hereby: (i) agrees that it will perform in accordance with their
terms all of the obligations which by the terms of the Loan Documents are
required to be performed by it as a Lender and (ii) confirms that it has
delivered to the Borrower and the Administrative Agent forms prescribed by the
Internal Revenue Service certifying that it is entitled to receive payments
under the Loan Documents without deduction or withholding of any United States
federal income taxes.
(b) As of the Amendment Effective Date, new Advances made by the
Lenders (other than The Sanwa Bank, Limited, Chicago Branch ("Sanwa Bank")) on
such date shall be used, in whole or in part, to repay existing Advances
outstanding on such date, and from and after the Amendment Effective Date and
payment to Sanwa Bank of all amounts due and payable to it under the Credit
Agreement, Sanwa Bank shall not be a Lender under the Credit Agreement, as
amended hereby, and shall be released from all obligations thereunder whether
heretofore or hereafter arising.
Section 3. CONDITIONS TO EFFECTIVENESS.
This Amendment shall become effective as of the date (the"Amendment
Effective Date") of receipt by First Chicago, as the new Administrative Agent,
of the following items:
(i) Counterparts of this Amendment duly executed by the Borrower and
the Lenders and of the Consent attached hereto duly executed by the
Guarantors.
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(ii) Promissory Notes payable to the order of the respective Lenders
in the amounts of their respective Commitments under the Credit Agreement,
as amended hereby, and executed and delivered by the Borrower (the "New
Notes").
(iii) Resolutions of the Board of Directors of the Borrower approving
and authorizing the execution, delivery and performance of this Amendment
and the New Notes, certified as of the date hereof by its Secretary or an
Assistant Secretary as being in full force and effect without modification
or amendment.
(iv) Such other documents as the Administrative Agent or any Lender
may reasonably request.
As a further condition to effectiveness, as of the Amendment Effective Date the
Administrative Agent shall have received for the account of the Lenders all
accrued interest on outstanding Advances, together with amounts owing in
respect of indemnification obligations pursuant to Section 8.04(D) of the
Credit Agreement, all accrued letter of credit fees pursuant to Section 2.04(e)
of the Credit Agreement, and all accrued facility fees pursuant to Section
2.05(a) of the Credit Agreement, in each case accrued to, but not including,
the Amendment Effective Date.
Section 4. REPRESENTATIONS AND WARRANTIES OF BORROWER.
To induce the Lenders to enter into this Amendment and to amend the
Credit Agreement as provided herein, the Borrower hereby represents and
warrants that:
(a) The Borrower has full power, authority and legal right to execute,
deliver and perform this Amendment, the Credit Agreement as amended hereby and
the New Notes, and has duly executed and delivered this Amendment and the New
Notes.
(b) This Amendment, the Credit Agreement as amended hereby and the New
Notes are the legal, valid and binding obligations of the Borrower enforceable
against the Borrower in accordance with their respective 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) The execution, delivery and performance of this Amendment and the
New Notes by the Borrower do not require any governmental registrations or
filings or approvals and do not and will not violate or contravene any law or
any order of any court or governmental agency or any indenture, agreement or
other instrument, including, without limitation, with respect to the Senior
Notes, to which the Borrower or any of the Guarantors is party or by which any
of them or any of their respective properties may be bound.
(d) 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 5. REFERENCE TO AND EFFECT ON THE CREDIT AGREEMENT AND OTHER
LOAN DOCUMENTS.
(a) From and after the Amendment Effective Date, each reference in any
Loan Document 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 Loan
Documents 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, the Swing Line Bank
or any Issuing Lender, nor constitute a waiver of any provision of the Credit
Agreement or any other Loan Document.
Section 6. 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 7. 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 8. 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 document.
IN WITNESS WHEREOF, this Amendment has been duly executed and delivered
on the date first above written.
TRANSPORTATION MANUFACTURING
OPERATIONS, INC.
By: /s/ Xxxxxxxxx Xxxxx Xxxxx
Print Name: Xxxxxxxxx Xxxxx Xxxxx
Title: Chief Executive Corporate Officer
THE FIRST NATIONAL BANK OF CHICAGO,
as a Lender and as Administrative Agent
By: /s/ H. Xxxxxxx Xxxxxxx
Name: H. Xxxxxxx Xxxxxxx
Title: International Banking Officer
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THE BANK OF NEW YORK, as a Co-Agent and
as a Lender
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Assistant Vice President
KEYBANK NATIONAL ASSOCIATION,
as a Co-Agent and as a Lender
By: /s/ Xxxxxxxx X. Xxxx
Name: Xxxxxxxx X. Xxxx
Title: Vice President
COMERICA BANK, as a Lender
By: /s/ Xxxxxxx X. Xxxxxxxx III
Name: Xxxxxxx X. Xxxxxxxx III
Title: Assistant Vice President
HUNTINGTON NATIONAL BANK,
as a Lender
By: /s/ Xxxxxx Xxxxx
Name: Xxxxxx Xxxxx
Title: Vice President
BANK OF HAWAII, as a Lender
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Vice President
NATIONSBANK, N.A., as a Lender
By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Sr. Vice President
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THE SUMITOMO BANK, LIMITED,
as a Lender
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Vice President
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Vice President
ALLIED IRISH BANK, P.L.C., CAYMAN ISLANDS
BRANCH, as a Lender
By: /s/ X.X. Xxxxxxxxxx
Name: X.X. Xxxxxxxxxx
Title: Senior Vice President
By: /s/ Xxxxxx Xxxxx
Name: Xxxxxx Xxxxx
Title: Assistant Vice President
THE SANWA BANK, LIMITED, CHICAGO
BRANCH, as an exiting Lender
By: /s/ Xxxxxx X. Holtley
Name: Xxxxxx X. Holtley
Title: Vice President and Manager
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AMENDED SCHEDULE 1.01
APPLICABLE LENDING OFFICES AND NOTICE ADDRESSES
INSTITUTION DOMESTIC LENDING OFFICE EURODOLLAR LENDING OFFICE
The First National Bank The First National Bank of Chicago The First National Bank of Chicago
of Chicago One First National Plaza One First National Plaza
Chicago, IL 60670 Xxxxxxx, XX 00000
Telephone: 000-000-0000 Telephone: 000-000-0000
Telecopy: 000-000-0000 Telecopy: 000-000-0000
Attn: Xxxxxxx Xxxxxxx Attn: Xxxxxxx Xxxxxxx
Reference: Transportation Reference: Transportation
Manufacturing Operations, Inc. Manufacturing Operations, Inc.
Allied Irish Bank, p.l.c., Allied Irish Bank, p.l.c., Allied Irish Bank, p.l.c.,
Cayman Islands Branch Cayman Islands Branch Cayman Islands Branch
000 Xxxx Xxxxxx 000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Telephone: 000-000-0000 Telephone: 000-000-0000
Telecopy: 000-000-0000 Telecopy: 000-000-0000
Attn: Xxxxxx Xxxxxx Attn: Xxxxxx Xxxxxx
Reference: Transportation Reference: Transportation
Manufacturing Operations, Inc. Manufacturing Operations, Inc.
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SCHEDULE 2.01
COMMITMENTS
LENDER COMMITMENT
The First National Bank of Chicago $ 27,600,000
KeyBank National Association 25,900,000
The Bank of New York 23,100,000
Comerica Bank 20,000,000
Huntington National Bank 19,800,000
Bank of Hawaii 15,000,000
The Sumitomo Bank, Limited 15,000,000
NationsBank, N.A. 13,600,000
Allied Irish Bank, p.l.c., Cayman Islands Branch 10,000,000
------------
Total $170,000,000
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SCHEDULE 2.04(a)
EXISTING LETTER OF CREDIT
LETTER OF EXPIRATION
ISSUER CREDIT NO. FACE AMOUNT DATE BENEFICIARY
The First National 365099 $5,000,000 9/11/98 General Electric
Bank of Chicago (with annual Capital Corporation,
extensions) as Agent
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CONSENT
Each of the undersigned, as a Guarantor under the Subsidiary Guaranty
dated as of October 1, 1996 (the "Guaranty") in favor of the Agent for the
benefit of the Lenders parties to the Credit Agreement referred to in the
foregoing Amendment, hereby consents to said Amendment and hereby confirms and
agrees that notwithstanding the effectiveness of said Amendment, the Guaranty
is, and shall continue to be, in full force and effect and is hereby confirmed
and ratified in all respects.
Dated: September 25, 1997 BUSLEASE, INC.
XXXXXXX BUS SALES, INC.
MOTOR COACH INDUSTRIES, INC.
MOTOR COACH INDUSTRIES-CHINA, INC.
TRANSIT BUS INTERNATIONAL, INC.
CUSTOM ASSETS CORP.
TRANSPORT TECHNOLOGY CORPORATION
UNIVERSAL COACH PARTS, INC.
By: /s/ Xxxxxxxxx Xxxxx Xxxxx
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Print Name: Xxxxxxxxx Xxxxx Xxxxx
Title: Chief Executive Corporate Officer
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