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EXHIBIT 4.5
TRANSPORTATION MANUFACTURING OPERATIONS, INC.
AMENDMENT NO. 4
to
CREDIT AGREEMENT
Dated as of June 26, 1998
This Amendment No. 4 to Credit Agreement (this
"Amendment") is dated as of June 26,1998 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,
RECITALS:
A. The Borrower, certain Subsidiaries of the Borrower,
as guarantors (the "Guarantors"), the Lenders and the Administrative
Agent are parties to that certain Credit Agreement dated as of September
30, 1996, as amended (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 parties hereto have agreed to amend the Credit
Agreement on the terms and conditions set forth herein.
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. AMENDMENT TO CREDIT AGREEMENT.
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) Section 5.01(a)(iii) of the Credit Agreement is
hereby amended by adding after the words "subdivisions (i) and
(ii) above," the words "and within 30 days after the last day of
each month that is not also the last day of a fiscal quarter,"
and by deleting therefrom the reference to "Sections (a)(ii),
(a)(vii), c(iv), and (d)(vi) of Section 5.02" and substituting
therefor a reference to "Sections (a)(ii),(a)(vii),(c)(iv),
(d)(vi), (j)(ii) and (l) of Section 5.02".
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(b) Section 5.01 (a)(iv) of the Credit Agreement is
hereby amended by adding thereto, after the words "subdivision
(ii) above," the words "and, in the case of clause (c) below,
pursuant to subdivision (i) above," and by amending clause (c)
thereof in its entirety to read as follows:
and (c) stating that based on their audit examination
nothing has come to their attention that causes them to
believe that the matters set forth in the Compliance
Certificate delivered pursuant to subdivision (iii)
above for the applicable fiscal year are not stated in
accordance with the terms of this Agreement and
providing an agreed upon procedure report on the
matters set forth in the Compliance Certificate
delivered pursuant to subdivision (iii) above for the
applicable fiscal quarter;
(c) Section 5.01(a) of the Credit Agreement is
further amended hereby by redesignating clause (xv) thereof as
clause (xvi) and adding a new clause (xv) thereto to read as
follows:
(xv) promptly upon receipt thereof, copies of
all management letters received by the Borrower, Xxxx
or any other consolidated Subsidiary of Xxxx from its
independent certified public accountants; and
(d) Section 5.02(l) of the Credit Agreement is hereby
amended by adding at the end of the last sentence thereof the
following:
, which amount may be in addition to the $20,000,000 of
inventory permitted by clause (i) above.
The parties understand and agree that the amendment set forth
in this Section 1(d) is a clarification of Section 5.02(l) and
not a substantive change thereto.
(e) Exhibit G of the Credit Agreement is hereby amended
by adding at the end of Schedule 1 thereof the following:
9. Contingent Obligations, Section 5.02(d)(i)
a. Aggregate outstanding amount of performance
and warranty bonds (other than in connection
with municipal transit authorities)..........$___________
b. Maximum amount of such bonds permitted ......$ 25,000,000
C. Aggregate outstanding amount of performance
and warranty bonds in connection with
municipal transit authorities................$___________
d. Maximum amount of such bonds permitted ......$180,000,000
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10. Restricted Junior Payments, Section 5.02(j)
a. Cumulative dividends and distributions (other than
the Xxxx Distribution) since September 30, 1996 ................. $__________
b. 50% of cumulative Consolidated Net Income
since December 31, 1996 ......................................... $__________
11. Transaction with Affiliates, Section 5.02(l)
a. Aggregate balance held in cash management
accounts ........................................................ $__________
b. Maximum balance permitted ....................................... $ 5,000,000
c. Management fees paid to Xxxx during most recent
calendar year ................................................... $__________
d. Maximum management fees permitted ............................... $ 500,000
e. Reimbursement of Xxxx expenses during most
recent calendar year............................................. $__________
f. Maximum reimbursements permitted................................. $ 500,000
g. Inventory purchased from Xxxx and its Affiliates ................ $__________
h. Maximum amount of such inventory permitted ...................... $20,000,000
i Advance payments and letters of credit for
purchase of inventory from Xxxx and its Affiliates .............. $__________
j. Maximum amount of such advance payments
and letters of credit permitted ................................. $ 7,500,000
Section 2. WAIVER.
Effective as of the Amendment Effective Date and subject to the
satisfaction of the conditions precedent set forth in Section 3 below, the
Lenders hereby waive any Event of Default or Potential Event of Default that may
have occurred prior to the effectiveness of this Amendment as a result of the
Borrower's failure to comply with the $7,500,000 limitation contained in the
last sentence of Section 5.02(1) of the Credit Agreement in connection with
certain transactions that have been disclosed to the Lenders in writing,
provided that such waiver shall be effective only until August 31, 1998.
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Section 3. CONDITIONS TO EFFECTIVENESS.
This Amendment shall become effective as of the date
hereof (the"Amendment Effective Date") upon the satisfaction of each of
the following conditions:
(a) The Administrative Agent shall have received
counterparts of this Amendment duly executed by the Borrower and the
Majority Lenders and of the Consent attached hereto duly executed by the
Guarantors.
(b) The Administrative Agent and the Arranger shall
have received a fee letter satisfactory to them and duly executed by the
Borrower, and the Borrower shall have paid to the Arranger the fee
specified therein in immediately available funds.
(c) The Administrative Agent shall have received from
the Borrower in immediately available funds, for the account of each
Lender that shall have executed this Amendment prior to 5:00 p.m. on
June 26, 1998, a fee in an amount equal to 0.125% of such Lender's
Commitment in effect on the date hereof.
(d) At the time of the effectiveness of this Amendment,
and after giving effect thereto, no Event of Default or Potential Event
of Default shall have occurred and be continuing.
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 and the Credit
Agreement as amended hereby and has duly executed and delivered this
Amendment.
(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, 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 by the
Borrower of this Amendment and the Credit Agreement as amended hereby
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.
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(d) At the time of effectiveness of this Amendment, and
after giving effect thereto, no Event of Default or Potential Event of
Default has occurred and is continuing.
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/ Xxxxxx Xxxxx Xxxxxx
-----------------------------
Name: Xxxxxx Xxxxx Xxxxxx
Title: Chairman of the Board and President
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THE FIRST NATIONAL BANK OF CHICAGO,
as a Lender and as Administrative Agent
By: /s/ Xxxxxxxxx Xxxxxxx
--------------------------------
Name: XXXXXXXXX XXXXXXX
Title: CORPORATE BANKING OFFICER
THE BANK OF NEW YORK, as a Co-Agent and
as a Lender
By:
--------------------------------
Name:
Title:
KEYBANK NATIONAL ASSOCIATION,
as a Co-Agent and as a Lender
By:
--------------------------------
Name:
Title:
COMERICA BANK, as a Lender
By:
--------------------------------
Name:
Title:
HUNTINGTON NATIONAL BANK,
as a Lender
By:
--------------------------------
Name:
Title:
BANK OF HAWAII, as a Lender
By:
--------------------------------
Name:
Title:
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THE FIRST NATIONAL BANK OF CHICAGO,
as a Lender and as Administrative Agent
By:
--------------------------------
Name:
Title:
THE BANK OF NEW YORK, as a Co-Agent and
as a Lender
By: /s/ Xxxxxx Xxxxxx
----------------------------------
Name: Xxxxxx Xxxxxx
Title: Assistant Vice President
KEYBANK NATIONAL ASSOCIATION,
as a Co-Agent and as a Lender
By:
--------------------------------
Name:
Title:
COMERICA BANK, as a Lender
By:
--------------------------------
Name:
Title:
HUNTINGTON NATIONAL BANK,
as a Lender
By:
--------------------------------
Name:
Title:
BANK OF HAWAII, as a Lender
By:
--------------------------------
Name:
Title:
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THE FIRST NATIONAL BANK OF CHICAGO,
as a Lender and as Administrative Agent
By:
--------------------------------
Name:
Title:
THE BANK OF NEW YORK, as a Co-Agent and
as a Lender
By:
--------------------------------
Name:
Title:
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:
--------------------------------
Name:
Title:
HUNTINGTON NATIONAL BANK,
as a Lender
By:
--------------------------------
Name:
Title:
BANK OF HAWAII, as a Lender
By:
--------------------------------
Name:
Title:
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THE FIRST NATIONAL BANK OF CHICAGO,
as a Lender and as Administrative Agent
By:
--------------------------------
Name:
Title:
THE BANK OF NEW YORK, as a Co-Agent and
as a Lender
By:
--------------------------------
Name:
Title:
KEYBANK NATIONAL ASSOCIATION,
as a Co-Agent and as a Lender
By:
--------------------------------
Name:
Title:
COMERICA BANK, as a Lender
By:
--------------------------------
Name:
Title:
HUNTINGTON NATIONAL BANK,
as a Lender
By: /s/ Xxxxxx Xxxxx
--------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
BANK OF HAWAII, as a Lender
By:
--------------------------------
Name:
Title:
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THE FIRST NATIONAL BANK OF CHICAGO,
as a Lender and as Administrative Agent
By:
-----------------------------------
Name:
Title:
THE BANK OF NEW YORK, as a Co-Agent and
as a Lender
By:
-----------------------------------
Name:
Title:
KEYBANK NATIONAL ASSOCIATION,
as a Co-Agent and as a Lender
By:
-----------------------------------
Name:
Title:
COMERICA BANK, as a Lender
By:
-----------------------------------
Name:
Title:
HUNTINGTON NATIONAL BANK,
as a Lender
By:
-----------------------------------
Name:
Title:
BANK OF HAWAII, as a Lender
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------
Name: XXXXX X. XXXXXX
Title: Vice President
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NATIONSBANK, N.A., as a Lender
By: /s/ XXXXXXX X. XXXXX
---------------------------
Name: XXXXXXX X. XXXXX
Title: SR. VICE PRESIDENT
THE SUMITOMO BANK, LIMITED,
as a Lender
By:
---------------------------
Name:
Title:
By:
---------------------------
Name:
Title:
ALLIED IRISH BANK, P.L.C., CAYMAN ISLANDS
BRANCH, as a Lender
By:
---------------------------
Name:
Title:
By:
---------------------------
Name:
Title:
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NATIONSBANK, N.A., as a Lender
By:
---------------------------
Name:
Title:
THE SUMITOMO BANK, LIMITED,
as a Lender
By: /s/ X. X. Xxxxxxxx
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Name: X. X. Xxxxxxxx
Title: Vice President
N.Y. Office
By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
Title: SVP
ALLIED IRISH BANK, P.L.C., CAYMAN ISLANDS
BRANCH, as a Lender
By:
---------------------------
Name:
Title:
By:
---------------------------
Name:
Title:
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NATIONSBANK, N.A., as a Lender
By:
---------------------------
Name:
Title:
THE SUMITOMO BANK, LIMITED,
as a Lender
By:
---------------------------
Name:
Title:
By:
---------------------------
Name:
Title:
ALLIED IRISH BANK, P.L.C., CAYMAN ISLANDS
BRANCH, as a Lender
By: /s/ Xxxxxxx X. Xxxxxxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Senior Vice President
By: /s/ Xxxxxx Xxxxxx
----------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
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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: June 26, 1998 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/ Xxxxxx Xxxxx Xxxxxx
--------------------------------
Name: Xxxxxx Xxxxx Xxxxxx
Title: Chairman of the Board and
President
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