1
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 Advanced
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
2
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 a 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:
-2-
3
(D) Funding Indemnification. If any payment of a Eurodollar Rate
Advance occurs on a date which it 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 OF 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.
-3-
4
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 document.
IN WITNESS WHEREOF, this Amendment has been duly executed and delivered
on the date first above written.
TRANSPORTATION MANUFACTURING
OPERATIONS, INC.
By: /s/ Xxxxxx X. Xxxxx
--------------------------
Name: Xxxxxx X. Xxxxx
Title: Treasurer
-4-
5
NBD BANK, as Administrative Agent,
Swing Line Bank, Issuing Lender
and Lender
By: /s/ Xxxxx X. Xxxxxx
------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
-5-
6
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
-----------------------------
Name: Xxxxxx X. Xxxxx
Title: Treasurer
XXXXXXX BUS SALES, INC.
By: /s/ Xxxxxx X. Xxxxx
-----------------------------
Name: Xxxxxx X. Xxxxx
Title: Treasurer
MCI ACCEPTANCE CORP.
By: /s/ Xxxxxx X. Xxxxx
-----------------------------
Name: Xxxxxx X. Xxxxx
Title: Treasurer
MOTOR COACH INDUSTRIES, INC.
By: /s/ Xxxxxx X. Xxxxx
-----------------------------
Name: Xxxxxx X. Xxxxx
Title: Treasurer
- 6 -
7
MOTOR COACH INDUSTRIES-CHINA, INC.
By: /s/ Xxxxxx X. Xxxxx
-----------------------------
Name: Xxxxxx X. Xxxxx
Title: Treasurer
TRANSIT BUS INTERNATIONAL, INC.
By: /s/ Xxxxxx X. Xxxxx
-----------------------------
Name: Xxxxxx X. Xxxxx
Title: Treasurer
CUSTOM ASSETS CORP.
By: /s/ Xxxxxx X. Xxxxx
-----------------------------
Name: Xxxxxx X. Xxxxx
Title: Treasurer
TRANSPORT TECHNOLOGY CORPORATION
By: /s/ Xxxxxx X. Xxxxx
-----------------------------
Name: Xxxxxx X. Xxxxx
Title: Treasurer
UNIVERSAL COACH PARTS, INC.
By: /s/ Xxxxxx X. Xxxxx
-----------------------------
Name: Xxxxxx X. Xxxxx
Title: Treasurer
- 7 -
