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Exhibit 10.1
FIRST AMENDMENT
FIRST AMENDMENT, dated as of May 1, 2000 (this "AMENDMENT"), to (i)
the Credit Agreement, dated as of June 16, 1999 (as amended, supplemented or
otherwise modified from time to time, the "CREDIT AGREEMENT"), among MCII
Holdings, Inc., formerly known as Motor Coach Industries International, Inc.,
a Delaware corporation (the "PARENT"), Motor Coach Industries International
Inc., formerly known as Transportation Manufacturing Operations, Inc. (the
"BORROWER"), the several banks and other financial institutions or entities
from time to time parties thereto (the "LENDERS"), The Bank of Nova Scotia,
as Syndication Agent (in such capacity, the "SYNDICATION AGENT"), General
Electric Capital Corporation, as Documentation Agent (in such capacity, the
"DOCUMENTATION AGENT"), and Canadian Imperial Bank of Commerce ("CIBC"), as
administrative agent and (ii) the Guarantee and Collateral Agreement, dated
as of June 16, 1999 executed pursuant to the Credit Agreement (as amended,
supplemented or otherwise modified from time to time, the "GUARANTEE AND
COLLATERAL AGREEMENT").
W I T N E S S E T H:
WHEREAS, pursuant to the Credit Agreement, the Lenders have agreed to
make, and have made, certain loans and other extensions of credit to the
Borrower; and
WHEREAS, the Borrower has requested, and, upon this Amendment becoming
effective, the Lenders shall have agreed, that certain provisions of the Credit
Agreement be amended in the manner provided for in this Amendment.
NOW, THEREFORE, for valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and in consideration of the
premises and mutual agreements contained herein, the parties hereto hereby agree
as follows:
I. DEFINITIONS. Unless otherwise defined herein, terms defined in
the Credit Agreement shall be used as so defined.
1. AMENDMENTS TO SECTION 1 OF THE CREDIT AGREEMENT: Subsection
1.1 of the Credit Agreement is hereby amended:
(a) by deleting therefrom the existing definition of "Issuing
Lender" in its entirety and by substituting, in lieu thereof, the following:
"ISSUING LENDER": as the case may be, either (a) the Bank of Nova
Scotia, in its capacity as the issuer of the Securitization L/C or (b)
CIBC, in its capacity as issuer of any other Letter of Credit.
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(b) by deleting therefrom the existing definition of "L/C
Commitment" in its entirety and by substituting, in lieu thereof, the following:
"L/C COMMITMENT" $85,000,000.
(c) by adding thereto the following definition:
"SECURITIZATION L/C": a Letter of Credit issued by The Bank of Nova
Scotia on or about April 18, 2000 in connection with a Qualified
Securitization Transaction, and any renewals or extensions thereof.
II. ADDITIONAL AMENDMENTS TO THE CREDIT AGREEMENT.
1. AMENDMENT TO SUBSECTION 3.1: Subsection 3.1 of the Credit
Agreement is hereby amended by adding thereto the following subsection:
(c) The Bank of Nova Scotia shall be the Issuing Lender with
respect to the Securitization L/C and no other Letter of Credit, and CIBC
shall be the Issuing Lender with respect to all other Letters of Credit.
2. AMENDMENT TO SUBSECTION 6.2(c): Subsection 6.2(c) of the
Credit Agreement is hereby amended by deleting said subsection 6.2(c) in its
entirety and substituting, in lieu thereof, the following:
(c) as soon as available, and in any event no later than 45 days
after the end of each fiscal year of the Borrower (or May 15, 2000, in the
case of the budget for fiscal year 2000), a detailed consolidated budget
for the following fiscal year (including a projected consolidated balance
sheet of the Borrower and its Subsidiaries as of the end of the following
fiscal year, and the related consolidated statements of projected cash
flow, projected changes in financial position and projected income)
(collectively, the "PROJECTIONS"), which Projections shall in each case be
accompanied by a certificate of a Responsible Officer stating that such
Projections are based on reasonable estimates, information and assumptions;
3. AMENDMENT TO SUBSECTION 6.2(d): Subsection 6.2(d) of the
Credit Agreement is hereby amended by deleting said subsection 6.2(d) in its
entirety and substituting in lieu thereof, the following:
(d) within 45 days after the end of each of the first three
fiscal quarters of each fiscal year of the Borrower and within 90 days
after the end of the fourth fiscal quarter of each fiscal year of the
Borrower, a narrative discussion and analysis of the financial condition
and results of operations of the Borrower and its Subsidiaries for such
fiscal quarter and for the period from the beginning of the then current
fiscal year to the end of such fiscal quarter, as compared to the portion
of the Projections covering such periods and to the comparable periods of
the previous year;
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4. AMENDMENT TO SUBSECTION 6.9(a): Subsection 6.9(a) of the
Credit Agreement is hereby amended by deleting said subsection 6.9(a) in its
entirety and substituting in lieu thereof, the following:
6.9 ADDITIONAL COLLATERAL, ETC. (a) With respect to any
property acquired after the Closing Date by Parent, the Borrower or any of
its Subsidiaries (other than (w) interests owned by a Securitization
Entity in accounts receivable and related assets conveyed to it by the
Borrower or any of its Subsidiaries, directly or indirectly, in connection
with any Qualified Securitization Transaction, (x) any property described
in paragraph (b), (c) or (d) below, (y) any property subject to a Lien
expressly permitted by Section 7.3(g) and (z) property acquired by any
Excluded Foreign Subsidiary) as to which the Administrative Agent, for the
benefit of the Lenders, does not have a perfected Lien, promptly (i)
execute and deliver to the Administrative Agent such amendments to the
Guarantee and Collateral Agreement or such other documents as the
Administrative Agent deems necessary or advisable to grant to the
Administrative Agent, for the benefit of the Lenders, a security interest
in such property and (ii) take all actions reasonably necessary or
advisable to grant to the Administrative Agent, for the benefit of the
Lenders, a perfected first priority security interest in such property,
including without limitation, the filing of Uniform Commercial Code
financing statements in such jurisdictions as may be reasonably required by
the Guarantee and Collateral Agreement or by law or as may be requested by
the Administrative Agent.
5. AMENDMENT TO SUBSECTION 7.5(f): Subsection 7.5(f) of the
Credit Agreement is hereby amended by deleting said subsection 7.5(f) in its
entirety and substituting, in lieu thereof, the following:
(f) sales of accounts receivable and related assets (including
contract rights) of the type specified in the definition of "Qualified
Securitization Transaction" to a Securitization Entity for the fair market
value thereof in connection with a Qualified Securitization Transaction,
and sales of such assets by such Securitization Entity for the fair market
value thereof in connection with such Qualified Securitization Transaction;
III. AMENDMENTS TO THE GUARANTEE AND COLLATERAL AGREEMENT.
1. AMENDMENT TO SUBSECTION 1.1: Subsection 1.1 of the
Guarantee and Collateral Agreement is hereby amended: by adding thereto the
following definitions in the appropriate alphabetical order:
"RECEIVABLES DOCUMENTS": shall mean all documentation relating to any
Qualified Securitization Transaction.
"RECEIVABLES FACILITY ASSETS": shall mean all Receivables (whether
now existing or arising in the future) of Borrower or any of its
Subsidiaries which are transferred pursuant to a Qualified Securitization
Transaction, and any assets related thereto, including without limitation
(i) all collateral given by the respective account debtor or on
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its behalf (but not by Borrower or any of its Subsidiaries) securing
such Receivables, (ii) all contracts and all guarantees (but not by
Borrower or any of its Subsidiaries) or other obligations directly
related to such Receivables, (iii) other related assets, including those
set forth in the Receivables Documents, and (iv) proceeds of all of the
foregoing.
2. AMENDMENT TO SECTION 3: Section 3 of the Guarantee and
Collateral Agreement is hereby amended by deleting the last paragraph of said
Section 3 in its entirety and substituting, in lieu thereof, the following:
Notwithstanding the foregoing, no security interest is or will be granted
in (a) any Equipment that would otherwise be included in the Collateral
during such time as such Equipment is subject to a Lien permitted by
Section 7.3(g) of the Credit Agreement or (b) any Receivables or other
assets of a type described in the definition of "Receivables Facility
Assets" during such time as such Receivables and other assets constitute
Receivables Facility Assets.
IV. EFFECTIVE DATE. This First Amendment will become effective as of
the date hereof upon its execution by the Borrower, each Guarantor, and the
Lenders in accordance with the terms of the Credit Agreement.
V. GENERAL
1. REPRESENTATIONS AND WARRANTIES. The Borrower represents and
warrants to each Lender that as of the effective date of this First Amendment
(a) this First Amendment constitutes the legal, valid and binding obligation of
the Borrower, enforceable against it in accordance with its terms, except as
such enforcement may be limited by bankruptcy, insolvency, fraudulent
conveyances, reorganization, moratorium or similar laws affecting creditors'
rights generally, by general equitable principles (whether enforcement is sought
by proceedings in equity or at law) and by an implied covenant of good faith and
fair dealing, (b) the representations and warranties made by the Loan Parties in
the Loan Documents are true and correct in all material respects on and as of
the date hereof (except to the extent that such representations and warranties
are expressly stated to relate to an earlier date, in which case such
representations and warranties shall have been true and correct in all material
respects on and as of such earlier date) and (c) no Default or Event of Default
shall have occurred and be continuing.
2. CONTINUING EFFECT. Except as expressly waived or amended hereby,
the Credit Agreement shall continue to be and shall remain in full force and
effect in accordance with its terms.
3. GOVERNING LAW. THIS FIRST AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
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4. COUNTERPARTS. This First Amendment may be executed by the
parties hereto in any number of separate counterparts and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
5. PAYMENT OF EXPENSES. The Borrower agrees to pay and reimburse
the Agent for all of its out-of-pocket costs and reasonable expenses incurred in
connection with this First Amendment, including, without limitation, the
reasonable fees and disbursements of counsel to the Agent.
IN WITNESS WHEREOF, the parties hereto have caused this First
Amendment to be duly executed and delivered by their properly and duly
authorized officers as of the day and year first above written.
MCII HOLDINGS, INC.
By: /s/ Horst 0. Sieben
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Title: Chief Financial Officer
MOTOR COACH INDUSTRIES
INTERNATIONAL, INC.
By: /s/ Horst O. Sieben
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Title: Chief Financial Officer
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BUS LEASE, INC.
By: /s/ Horst O. Sieben
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Name: Horst O. Sieben
Title: Chief Financial Officer
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HAUSMAN BUS SALES, INC.
By: /s/ Horst O. Sieben
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Name: Horst O. Sieben
Title: Chief Financial Officer
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MOTOR COACH INDUSTRIES, INC.
By: /s/ Horst O. Sieben
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Name: Horst O. Sieben
Title: Chief Financial Officer
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UNIVERSAL COACH PARTS, INC.
By: /s/ Horst O. Sieben
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Name: Horst O. Sieben
Title: Chief Financial Officer
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TRANSIT BUS INTERNATIONAL, INC.
By: /s/ Horst O. Sieben
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Name: Horst O. Sieben
Title: Chief Financial Officer
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MCII FINANCIAL SERVICES II, INC.
By: /s/ Horst O. Sieben
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Name: Horst O. Sieben
Title: Chief Financial Officer
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CANADIAN IMPERIAL BANK OF COMMERCE, as
Administrative Agent and as a Lender
By: /s/ Lindsay Gordon
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Title: Excecutive Director
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THE BANK OF NOVA SCOTIA, as
Syndication Agent and as a Lender
By: /s/ F.C.H. Ashby
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Title: Senior Manager Loan Operations
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VAN KAMPEN CLO I, LIMITED
By: /s/ Howard Tiffen
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Name: Howard Tiffen
Title: Senior Vice President
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VAN KAMPEN PRIME RATE INCOME TRUST
By: /s/ Howard Tiffen
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Name: Howard Tiffen
Title: Senior Vice President
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VAN KAMPEN SENIOR FLOATING RATE FUND
By: /s/ Howard Tiffen
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Name: Howard Tiffen
Title: Senior Vice President
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OPPENHEIMER SENIOR FLOATING RATE FUND
By: /s/ Scott Farrar
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Name: Scott Farrar
Title: Vice President
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SAWGRASS TRADING LLC
By: /s/ Kelly C. Walker
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Name: Kelly C. Walker
Title: Vice President
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THE TORONTO-DOMINION BANK
By: /s/ Jorge A. Garcia
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Name: Jorge A. Garcia
Title: Mgr. Cr. Admin
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ROYAL BANK OF CANADA (NEW YORK)
By: /s/ N.G. Millar
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Name: N.G. Millar
Title: Senior Manager
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SUMMIT BANK
By: /s/ James E. Cheatham
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Name: James E. Cheatham
Title: VP - Director
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MERRILL LYNCH PRIME RATE PORTFOLIO
By: Merrill Lynch Asset Management,
L.P., as Investment Advisor
By: /s/ Paul Travers
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Name: Paul Travers
Title: Authorized Signatory
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MERRILL LYNCH SENIOR FLOATING RATE
FUND II INC.
By: /s/ Paul Travers
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Name: Paul Travers
Title: Authorized Signatory
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IKB DEUTSCHE INDUSTIEBANK AG
LUXEMBOURG BRANCH
By: /s/ Edwin Brecht
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Name: Edwin Brecht
Title: Executive Director
By: /s/ Manfred Ziwey
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Name: Manfred Ziwey
Title: Director
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KZH SHOSHONE LLC
By: /s/ Susan Lee
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Name: Susan Lee
Title: Authorized Agent
