Exhibit 2.2
FIRST AMENDMENT
TO
INVESTMENT AGREEMENT
by and among
XXXXXX XXXXXXXXXX & XXXX FUND III L.P.
CIBC WG ARGOSY MERCHANT FUND 2, L.L.C.
CO-INVESTMENT MERCHANT FUND 3, L.L.C.
and
CONSORCIO G GRUPO XXXX, S.A. de C.V.
dated as of
June 16, 1999
FIRST AMENDMENT TO INVESTMENT AGREEMENT
FIRST AMENDMENT TO INVESTMENT AGREEMENT (hereinafter referred
to as this "First Amendment"), dated as of June 16, 1999, by and among Xxxxxx
Xxxxxxxxxx & Levy Fund III L.P., a Delaware limited partnership ("JLL"), CIBC WG
Argosy Merchant Fund 2, L.L.C. ("CIBC Argosy"), Co-Investment Merchant Fund 3,
LLC ("CMF") and Consorcio G Grupo Xxxx, S.A. de C.V., a corporation organized
under the laws of the United Mexican States ("Xxxx").
WHEREAS, JLL, CIBC Argosy, CMF and Xxxx entered into an
Investment Agreement dated as of June 11, 1999 (the "Agreement"); and
WHEREAS, JLL, CIBC Argosy, CMF and Xxxx desire to amend the
Agreement upon the terms and subject to the conditions set forth herein; and
NOW, THEREFORE, in consideration of the foregoing and the
mutual representations, warranties, covenants and agreements set forth herein,
the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 DEFINITIONS. Capitalized terms used and
not otherwise defined herein shall have the respective meanings assigned to them
in the Agreement.
ARTICLE II
AMENDMENTS TO THE BACKGROUND SECTION OF THE AGREEMENT
Section 2.1 AMENDMENT TO PARAGRAPH A OF THE BACKGROUND
SECTION OF THE AGREEMENT. Paragraph A of the Background Section of the Agreement
is hereby amended and restated in its entirety to read as follows:
"A. Upon the terms and subject to the conditions of this
Agreement, at the Closing (as hereinafter defined), Xxxx shall cause its wholly
owned subsidiary, MCII Holdings (USA), Inc., a Delaware corporation (the
"Company"), to
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issue and sell, and the Investors will purchase, (i) 610,000 shares (the
"Shares") of Common Stock (as hereinafter defined), which Shares shall equal
61% of the shares of Common Stock outstanding on the Closing Date (as
hereinafter defined), and warrants (the "Warrants") to purchase up to 10% of
the Common Stock, on a fully diluted basis, for an aggregate purchase price
of $125 million and (ii) Senior Notes due 2011 of the Company, in the
aggregate principal amount of $50 million (the "Company Senior Notes"), for a
purchase price of $50 million. The Shares, the Warrants and the Company
Senior Notes are hereinafter collectively referred to as the "Securities".
The terms of the Company Senior Notes and the Warrants are set forth on
EXHIBITS A and B hereto. Such issuance, sale and purchase are referred to
herein as the "Investment.""
Section 2.2 AMENDMENT TO PARAGRAPH B OF THE BACKGROUND
SECTION OF THE AGREEMENT. Paragraph B of the Background Section of the Agreement
is hereby amended and restated in its entirety to read as follows:
"B. At the Closing, Transportation Manufacturing Operations,
Inc., a Delaware corporation and an indirect wholly owned subsidiary of the
Company ("TMO"), will enter into a credit agreement (the "Credit Agreement")
with Canadian Imperial Bank of Commerce, as agent ("CIBC"), and a syndicate of
lenders providing for a $450 million senior credit facility."
Section 2.3 AMENDMENT TO PARAGRAPH C OF THE BACKGROUND
SECTION OF THE AGREEMENT. Paragraph C of the Background Section of the Agreement
is hereby amended and restated in its entirety to read as follows:
"C. At the Closing, TMO shall issue and sell $152.25 million
of subordinated indebtedness pursuant to a private placement (the "Private
Placement" and, together with the transactions contemplated by the Credit
Agreement, the "Financing")."
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ARTICLE III
AMENDMENTS TO ARTICLE I OF THE AGREEMENT
Section 3.1 AMENDMENT TO SECTION 1.1 OF THE AGREEMENT.
Section 1.1 of the Agreement is hereby amended as follows:
(a) The definition of "Carrocera" set forth in
Section 1.1 of the Agreement is hereby amended in its entirety to read as
follows:
""Carroceria" shall have the meaning set forth in
Section 3.3."
(b) A definition for "Securities" is hereby inserted
in Section 1.1 immediately following the definition for "SEC Reports" and shall
read in its entirety as follows:
""Securities" shall have the meaning set forth in the
"Background" section."
ARTICLE IV
AMENDMENTS TO ARTICLE III OF THE AGREEMENT
Section 4.1 AMENDMENT TO SECTION 3.3 OF THE AGREEMENT.
Section 3.3 of the Agreement is hereby amended and restated in its entirety to
read as follows:
"3.3 SUBSIDIARY SALE. Prior to the Closing, Xxxx or one
of its Subsidiaries (other than the Company or any Company Subsidiary) shall
acquire from (a) Xxxx Autobuses, S.A. de C.V., a subsidiary of the Company
("Autobuses"), (i) all of the outstanding capital stock of Autopartes
Hidalguenses, S.A. de C.V. ("Autopartes") owned by Autobuses and (ii) all of the
outstanding capital stock of Carroceria Xxxxxxx, X.X. de C.V. ("Carroceria")
owned by Autobuses, (b) MCII Trucks, Inc., a wholly owned subsidiary of the
Company ("MCII Trucks"), all of the outstanding capital stock of Mexicana de
Manufacturas Especiales, S.A. de C.V. ("MME") owned by MCII Trucks, and (c)
Universal Coach Parts, Inc., an indirect wholly owned subsidiary of the Company
("Universal"), all of the outstanding capital stock of Universal Coach Parts
Mexico, S.A. de C.V. ("Universal Mexico" and, together with Autopartes,
Carroceria and MME, the "Transferred Subsidiaries")
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owned by Universal (collectively, the "Subsidiary Sale"), in each case, in
exchange for the issuance by Xxxx of a promissory note in the amount set
forth in Section 3.3 of the DISCLOSURE SCHEDULE (collectively, the "Xxxx
Notes")."
ARTICLE V
AMENDMENTS TO ARTICLE IV OF THE AGREEMENT
Section 5.1 AMENDMENT TO SECTION 4.3 OF THE AGREEMENT. The
heading and subsections (a) and (b) of Section 4.1 of the Agreement are hereby
amended and restated in their entirety to read as follows:
"4.3 CAPITALIZATION; TITLE TO SECURITIES.
(a) Immediately prior to the filing of the Charter Amendment,
the authorized capital stock of the Company consists of 1,000 shares of Common
Stock of which 1,000 shares are issued and outstanding and held by Xxxx. No
shares of Common Stock are held in the treasury of the Company. Each of the
issued and outstanding shares of capital stock of the Company has been duly
authorized and validly issued, and is fully paid and nonassessable, and free of
preemptive rights. Upon payment by the Investors of the Investment Consideration
and the issuance to the Investors of the Securities at the Closing, (i) the
Shares will be duly authorized, validly issued, fully paid and nonassessable and
free of preemptive rights, (ii) the Company Senior Notes will be validly
authorized and issued and constitute the valid and binding obligations of the
Company enforceable against the Company in accordance with their terms and (iii)
the Warrants will be validly authorized and issued and upon payment of the
exercise price therefor, the shares of Common Stock issued thereunder will be
validly issued, fully paid and nonassessable.
(b) Except as set forth in Section 4.3(b) of the DISCLOSURE
SCHEDULE, Xxxx has good and valid title to all the shares of Common Stock held
by it, free and clear of any and all Liens."
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ARTICLE VI
AMENDMENTS TO ARTICLE V OF THE AGREEMENT
Section 6.1 AMENDMENT TO SECTION 5.5 OF THE AGREEMENT.
Section 5.5 of the Agreement is hereby amended and restated to read in its
entirety as follows:
"5.5 ACQUISITION OF SECURITIES FOR INVESTMENT. Such Investor
is acquiring the Securities for investment purposes only and not with any
present intention of distributing or selling the Securities in violation of
federal or state securities laws. Such Investor shall not sell, transfer, offer
for sale, pledge, hypothecate or otherwise dispose of such Securities in
violation of any federal or state securities laws."
ARTICLE VII
AMENDMENT TO ARTICLE VII OF THE AGREEMENT
Section 7.1 AMENDMENT TO SECTION 7.5 OF THE AGREEMENT.
Section 7.5 of the Agreement is hereby amended and restated in its entirety as
follows:
"7.5 LICENSE AGREEMENT. At the Closing, Xxxx shall and shall
cause the Company to enter into a license agreement, substantially in the form
attached hereto as EXHIBIT G (the "License Agreement"), providing for, among
other things, the grant by Xxxx to the Company of a perpetual, exclusive and
royalty-free right and license to use the name "Xxxx" and certain patents in
connection with the Business."
Section 7.2 ADDITION OF SECTION 7.9 TO THE AGREEMENT. A
new Section 7.9 is hereby added to Article VII to read in its entirety as
follows:
"Section 7.9 XXXX NAME CHANGES. Within thirty days after the
Closing, Xxxx shall cause each of its subsidiaries, to the extent necessary, to
file an amendment to its organizational document changing such subsidiary's name
so as not to include "Motor Coach", "MCI", "MCII", or "Universal Coach Parts" or
any derivative thereof or any name bearing any resemblance thereto."
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ARTICLE VIII
MISCELLANEOUS
Section 8.1 AMENDMENT. All references in the Agreement (and
in the other agreements, documents and instruments entered into in connection
therewith) to the "Agreement" shall be deemed for all purposes to refer to the
Agreement, as amended by this First Amendment.
Section 8.2 LIMITED EFFECT. Except as expressly modified
herein, the Agreement shall continue to be, and shall remain, in full force and
effect and the valid and binding obligation of the parties thereto in accordance
with its terms.
Section 8.3 COUNTERPARTS. This First Amendment may be
executed in two or more counterparts, each of which shall be considered one and
the same agreement and shall become effective when two or more counterparts have
been signed by each of the parties and delivered to the other parties.
Section 8.4 GOVERNING LAW. This First Amendment shall be
governed by and construed in accordance with the laws of the State of New York
without regard to the principles of conflicts of law thereof.
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IN WITNESS WHEREOF, the parties hereto have caused this First
Amendment to be executed as of the date first written above.
XXXXXX XXXXXXXXXX & XXXX
FUND III L.P.
By: JLL ASSOCIATES III, LLC
By:
------------------------------
Managing Member
CIBC WG ARGOSY MERCHANT
FUND 2, L.L.C.
By:
------------------------------
Xxx Xxxxxx, authorized signatory
CO-INVESTMENT MERCHANT
FUND 3, LLC
By:
------------------------------
Xxx Xxxxxx, authorized signatory
CONSORCIO G GRUPO XXXX, S.A. de C.V.
By:
------------------------------
Name:
Title:
IN WITNESS WHEREOF, the Company has caused this First
Amendment to be executed as of this 16th day of June, 1999.
MCII HOLDINGS (USA), INC.
By:
------------------------------
Name:
Title:
IN WITNESS WHEREOF, the parties hereto have caused this First
Amendment to be executed as of the date first written above.
XXXXXX XXXXXXXXXX & LEVY
FUND III L.P.
By: JLL ASSOCIATES III, LLC
By:
------------------------------
Managing Member
CIBC WG ARGOSY MERCHANT
FUND 2, L.L.C.
By:
------------------------------
Xxx Xxxxxx, authorized signatory
CO-INVESTMENT MERCHANT
FUND 3, LLC
By:
------------------------------
Xxx Xxxxxx, authorized signatory
CONSORCIO G GRUPO XXXX, S.A. de C.V.
By:
------------------------------
Name:
Title:
IN WITNESS WHEREOF, the parties hereto have caused this First
Amendment to be executed as of the date first written above.
XXXXXX XXXXXXXXXX & LEVY
FUND III L.P.
By: JLL ASSOCIATES III, LLC
By:
------------------------------
Managing Member
CIBC WG ARGOSY MERCHANT
FUND 2, L.L.C.
By:
------------------------------
Xxx Xxxxxx, authorized signatory
CO-INVESTMENT MERCHANT
FUND 3, LLC
By:
------------------------------
Xxx Xxxxxx, authorized signatory
CONSORCIO G GRUPO XXXX, S.A. de C.V.
By:
------------------------------
Name:
Title:
IN WITNESS WHEREOF, the Company has caused this First
Amendment to be executed as of this 16th day of June, 1999.
MCII HOLDINGS (USA), INC.
By:
------------------------------
Name:
Title:
