AMENDMENT NO. 1 DATED
AS OF MAY 23, 1997
TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF FEBRUARY 27, 1997
THIS AMENDMENT NO. 1 (this "Amendment") is entered into as of May 23,
1997, among MotivePower Industries, Inc., a Delaware corporation (the
"Borrower"), the financial institutions signatory to the hereinafter defined
Credit Agreement (collectively, the "Lenders"), and Bank of America National
Trust and Savings Association, as Agent for the Lenders (the "Agent").
RECITALS:
A. The Borrower, the Agent and the Lenders are party to that certain
Second Amended and Restated Credit Agreement dated as of February 27, 1997 (as
so amended herein, the "Credit Agreement"). Unless otherwise specified herein,
capitalized terms used in this Amendment shall have the meanings ascribed to
them in the Credit Agreement.
B. The Borrower, the Agent and the Lenders wish to amend the Credit
Agreement pursuant to the terms as set forth herein with respect to a) aggregate
amount of performance bonds the Borrower may have outstanding at any time; (b)
the aggregate amount of letters of credit the Borrower may have outstanding in
support of or in respect of any surety contracts, Surety Instruments or
performance bonds at any time; and (c) the aggregate amount of letters of credit
the Borrower may have outstanding at any time.
C. Now, Therefore, the parties hereto agree as follows:
1. AMENDMENTS TO THE CREDIT AGREEMENT.
1.1 Section 1.1 of the Credit Agreement. The definition of
"Unused Letter of Credit Subfacility" in Section 1.1 of the Credit Agreement is
hereby amended in its entirety to read as follows:
"Unused Letter of Credit Subfacility" means an amount equal to
$20,000,000 minus the sum of (a) the aggregate undrawn amount of all
outstanding Letters of Credit plus (b) the aggregate unpaid
reimbursement obligations with respect to all Letters of Credit.
1.2 Section 2.01(c)(ii)(4) of the Credit Agreement.
Section 2.01(c)(ii)(4) of the Credit Agreement is hereby amended in
its entirety to read as follows:
"(4) if the stated amount of all Letters of Credit (including
the one proposed to be issued) supporting or issued in respect of any
performance bonds, surety contracts or Surety Instruments of any kind
exceeds $10,000,000;"
1.3 Section 7.08(e) of the Credit Agreement. Section
7.08(e) of the Credit Agreement is hereby amended in its entirety
to read as follows:
"(e) Contingent Obligations of the Borrower with respect to
performance bonds or surety contracts of any kind provided that such
performance bonds or surety contracts are issued in connection with
Contractual Obligations to reconstruct railroad locomotives which
provide aggregate total consideration and payments to the Borrower and
its Subsidiaries not in excess of $30,000,000 in the aggregate (whether
or not progress payments have been made thereunder or such amounts are
then due and owing) and are issued pursuant to contracts and agreements
in form and substance and from an issuer or surety reasonably
satisfactory to the Agent, and in any event such issuer or surety shall
not be permitted to take a Lien on any property or assets of the
Borrower or its Subsidiaries other than the Inventory and Accounts
(excluding cash payments not made directly to such issuer or surety)
directly identifiable to the contract being supported by such surety or
performance bond; and"
2. REPRESENTATION AND WARRANTIES. To induce the Agent and
the Lenders to enter into this Amendment, the Borrower represents
and warrants that:
2.1 Authorization. The Borrower is duly authorized to execute
and deliver this Amendment and to perform its obligations under the Credit
Agreement, as amended hereby.
2.2 No Conflicts. The execution and delivery of this
Amendment, and the performance by the Borrower of its obligations under the
Credit Agreement, as amended hereby, do not and will not conflict with any
provision of law or of the charter or by-laws of the Borrower or of any
agreement binding upon the Borrower.
2.3 Validity and Binding Effect. The Credit Agreement,
as amended hereby, is, a legal, valid and binding obligation of the
Borrower, enforceable against the Borrower in accordance with its
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terms, except as enforceability may be limited by bankruptcy, insolvency or
other similar laws of general application affecting the enforcement of
creditors' rights or by general principles of equity limiting the availability
of equitable remedies.
3. CONDITIONS PRECEDENT TO AMENDMENTS. The amendments
contemplated by Section 1 hereof are subject to the satisfaction of
each of the following conditions precedent:
3.1 Documentation. The Borrower shall have delivered to the
Agent all of the following, each duly executed and, dated the date hereof, in
form and substance satisfactory to the Agent:
(a) Certificate. A certificate of the president or
chief financial officer of the Borrower as to the matters set out
in Sections 3.2 and 3.3 hereof.
(b) Other. Such other documents as the Agent may
reasonably request.
3.2 No Default. As of the closing date hereof, no
Default or Event of Default shall have occurred and be continuing.
3.3 Representations and Warranties. As of the closing date
hereof, the representations and warranties in Article V of the Credit Agreement
and in Section 2 of this Amendment shall be true and correct as though made on
such date.
4. GENERAL.
4.1 Expenses. The Borrower agrees to pay the Agent upon demand
for all reasonable expenses, including reasonable Attorneys' Costs, incurred by
the Agent in connection with the preparation, negotiation and execution of this
Amendment, and any document required to be furnished therewith.
4.2 Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE INTERNAL LAW OF THE STATE OF ILLINOIS; PROVIDED THAT THE
AGENT AND THE LENDERS SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
4.3 Successors. This Amendment shall be binding upon inure to
the benefit of the parties hereto and their respective successors and assigns.
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4.4 Confirmation of the Credit Agreement. Except as amended
hereby, the Credit Agreement shall remain in full force and effect and is hereby
ratified and confirmed in all respects.
4.5 References to the Credit Agreement. Each reference in the
Credit Agreement to "this Credit Agreement," "hereunder," "hereof," or words of
like import, and each reference to the Credit Agreement in any and all
instruments or documents provided for in the Credit Agreement or delivered or to
be delivered thereunder or in connection therewith, shall, except where the
context otherwise requires, be deemed a reference to the Credit Agreement as
amended hereby.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first written above.
MOTIVEPOWER INDUSTRIES, INC., as
Borrower
By:
Title:
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as Agent
and a Lender
By:
Title:
ABN AMRO BANK, N.V., as a Lender
By:
Title:
THE BANK OF NEW YORK, as a Lender
By:
Title:
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CORESTATES BANK, N.A., as a Lender
By:
Title:
CREDIT LYONNAIS NEW YORK BRANCH, as
a Lender
By:
Title:
DG BANK DEUTSCHE GENOSSENSCHAFTS
BANK, as a Lender
By:
Title:
MELLON BANK, N.A., as a Lender
By:
Title:
NATIONAL BANK OF CANADA, as a
Lender
By:
Title:
By:
Title:
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NATIONAL CITY BANK, as a Lender
By:
Title:
PNC BANK, N.A., as a Lender
By:
Title:
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IN WITNESS WHEREOF, the undersigned have accepted and agreed
to this Amendment as of the date first above written.
Motor Coils Manufacturing Company
By:
Title:
Engine Systems Company, Inc.
By:
Title:
Clark Industries Company
By:
Title:
Power Parts Company
By:
Title:
Touchstone Company
By:
Title:
MotivePower Investments Limited
By:
Title:
Boise Locomotive Company
By:
Title:
MotivePower Foreign Sales
Corporation
By:
Title:
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