Exhibit 10.42
EXECUTION COPY
EIGHTH SUPPLEMENTAL INDENTURE
EIGHTH SUPPLEMENTAL INDENTURE, dated as of March 1, 2002, among Atlantic
Express Transportation Corp., a New York corporation (the "Company"), the
Guarantors named herein, as guarantors, and The Bank of New York, a New York
banking corporation, as trustee (the "Trustee").
WHEREAS, the Company has duly issued its 10 3/4% Senior
Secured Notes due 2004 (the "Securities"), in the aggregate principal amount
of $150,000,000 pursuant to an Indenture dated as of February 4, 1997, among the
Company, the Guarantors named therein and the Trustee, as amended by the First
Supplemental Indenture thereto dated as of August 14, 1997, the Second
Supplemental Indenture thereto dated as of December 12, 1997, the Third
Supplemental Indenture thereto dated as of October 28, 1998, the Fourth
Supplemental Indenture thereto dated as of April 28, 1999, the Fifth
Supplemental Indenture thereto dated as of December 20, 2000, the Sixth
Supplemental Indenture thereto dated as of August 15, 2001 and the Seventh
Supplemental Indenture thereto dated as of February 26, 2002 (as so amended, the
"Indenture"), and the Securities in the principal amount of $120,000,000 are
outstanding on the date hereof; and
WHEREAS, the Company proposes to amend its existing Revolving Credit
Facility by increasing the maximum principal amount of indebtedness permitted
under the Revolving Credit Facility from $125.0 million to $143.0 million (the
"Amendment"); and
WHEREAS, in connection with the Amendment, the Company proposes to incur
additional indebtedness in a maximum aggregate initial principal amount or
initial issue price of up to $18.0 million including any increase in the
principal amount of such indebtedness resulting from any accrual, compounding or
payment-in-kind of interest under such indebtedness which is not paid currently
in cash or which is added to the principal amount of such indebtedness plus all
other accrued and unpaid interest, fees and other obligations owed under the
Revolving Credit Facility; and
WHEREAS, Section 9.2 of the Indenture provides that the Company and the
Trustee may amend any provision of the Indenture (other than certain provisions
enumerated in Section 9.2 of the Indenture, none of which provisions are
implicated hereby) with the written consent of the Holders (as defined in the
Indenture) of at least a majority of the aggregate principal amount of the then
outstanding Securities and execute a supplemental indenture; and
WHEREAS, the Company solicited, and has received, consents upon the terms
and subject to the conditions set forth in the Consent Solicitation Statement
dated February 15, 2002 (the "Statement") and the accompanying Consent Letter
(the "Consent Letter"), from Holders representing at least a majority in
aggregate principal amount of its outstanding Securities to certain amendments
described therein to the Indenture; and
WHEREAS, it is provided in Section 9.4 of the Indenture that a
supplemental indenture becomes effective in accordance with its terms and
thereafter binds every Holder;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. DEFINITIONS.
Capitalized terms not defined herein shall have the meaning given to such
terms in the Indenture.
SECTION 2. AMENDMENTS TO THE INDENTURE.
Section 2.1 Amendment to the definition of "Permitted Affiliate
Transactions."
The definition of "Permitted Affiliate Transactions" as set forth in
Section 1.1 of the Indenture is hereby amended and restated to read in its
entirety as follows:
"Permitted Affiliate Transactions" means (i) employment agreements entered
into by the Company or any Restricted Subsidiary in the ordinary course of
business with the approval of a majority of the disinterested members of the
Company's Board of Directors; (ii) transactions between or among the Company and
its 90% Owned Subsidiaries; (iii) reasonable and customary fees and compensation
paid to and indemnity provided on behalf of, officers, directors, employees or
consultants of the Company or any Restricted Subsidiary as determined in good
faith by a majority of the disinterested directors of the Company's Board of
Directors or, if none, unanimously by such Board of Directors; (iv) the "Park &
Ride Lease" between Showplace Bowling Center Inc., as lessor, and Atlantic
Express Coachways Inc., as lessee, and the lease between Dom-Rich Associates,
Inc., as lessor, and Staten Island Bus, Inc., as lessee, in each case in effect
as of the Closing Date; (v) annual premiums paid to Atlantic North Casualty
Company, in the ordinary course of business, for insurance; provided, that such
premiums do not exceed the annual aggregate deductibles on the Company's
insurance policies then in effect; and (vi) the execution, delivery and
performance of any documents, and the incurrence and payment of obligations in
respect of borrowings, interest, expenses, fees, the grant of security interests
in the assets of the Company and its Restricted Subsidiaries and guarantees, in
connection with, and including, the amendment to the Revolving Credit Facility
pursuant to which the maximum principal amount permitted to be borrowed
thereunder is increased from $125.0 million to $143.0 million (including any
increase in the principal amount of such Indebtedness resulting from any
accrual, compounding or payment-in-kind of interest under such Indebtedness
which is not paid currently in cash or which is added to the principal amount of
such Indebtedness), notwithstanding that any Affiliate of the Company may be a
party to the Revolving Credit Facility or to any transaction or payment pursuant
to or in connection with the Revolving Credit Facility, including the amendment
thereof as aforesaid.
Section 2.2 Amendment to the definition of "Revolving Credit Facility."
The definition of "Revolving Credit Facility" as set forth in Section 1.1
of the Indenture is hereby amended and restated to read in its entirety as
follows:
"Revolving Credit Facility" means that certain credit facility dated
December 22, 2000, as amended through and as of March 1, 2002, by and between
Congress Financial Corporation, as lender, the Company and those Subsidiaries of
the Company named therein, as borrowers, and the Restricted Subsidiaries, as
guarantors, in the maximum principal amount of up to $143.0 million including
any increase in the principal amount of such Indebtedness resulting from any
accrual, compounding or payment-in-kind of interest under such Indebtedness
2
which is not paid currently in cash or which is added to the principal amount of
such Indebtedness, and as the same may be further amended, modified, renewed,
refunded, replaced or refinanced from time to time, including (i) any related
notes, letters of credit, guarantees, collateral documents, instruments and
agreements executed in connection therewith, and in each case as amended,
modified, renewed, refunded, replaced or refinanced from time to time, and (ii)
any notes, guarantees, collateral documents, instruments and agreements executed
in connection with such amendment, modification, renewal, refunding, replacement
or refinancing.
Section 2.3 Amendment to the "Limitation on Incurrence of Indebtedness"
Covenant.
Section 4.9(b)(i) of the Indenture is hereby amended and restated to
read in its entirety as follows:
(b) The limitations of Section 4.9(a) shall not prohibit the
incurrence of:
(i) Indebtedness under the Revolving Credit Facility,
provided, that the aggregate principal amount of Indebtedness so
incurred on any date, together with all other Indebtedness incurred
pursuant to this clause (i) and outstanding on such date, shall not
exceed $143.0 million including any increase in the principal amount
of such Indebtedness resulting from any accrual, compounding or
payment-in-kind of interest under such Indebtedness which is not
paid currently in cash or which is added to the principal amount of
such Indebtedness plus all other accrued and unpaid interest, fees
and other obligations owed under the Revolving Credit Facility, less
any repayments thereunder pursuant to Section 4.10 hereof.
SECTION 3. EFFECTIVE DATE.
This Eighth Supplemental Indenture shall become effective on the
date hereof.
SECTION 4. MISCELLANEOUS.
Section 4.1 Governing Law.
THIS EIGHTH SUPPLEMENTAL INDENTURE SHALL BE CONSTRUED, INTERPRETED
AND THE RIGHTS OF THE PARTIES DETERMINED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE
OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. THE COMPANY AND
EACH GUARANTOR HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY NEW YORK
STATE COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK OR ANY
FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN
RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OF OR RELATING TO THIS
AGREEMENT, AND IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY,
GENERALLY AND UNCONDITIONALLY, JURISDICTION OF THE AFORESAID COURTS. THE COMPANY
AND EACH GUARANTOR IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY
DO SO UNDER APPLICABLE LAW, TRIAL BY JURY AND ANY
3
OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY
SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY
SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM. THE COMPANY AND EACH GUARANTOR IRREVOCABLY CONSENTS, TO THE
FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, TO THE SERVICE OF
PROCESS OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY
THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID,
TO THE COMPANY AT ITS ADDRESS SET FORTH IN THE INDENTURE, SUCH SERVICE TO BECOME
EFFECTIVE 30 DAYS AFTER SUCH MAILING. NOTHING HEREIN SHALL AFFECT THE RIGHT OF
ANY HOLDER TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE
LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE COMPANY OR ANY GUARANTOR IN
ANY OTHER JURISDICTION.
Section 4.2 Continuing Agreement.
Except as herein amended, all terms, provisions and conditions of
the Indenture, all Exhibits thereto and all documents executed in connection
therewith shall continue in full force and effect and shall remain enforceable
and binding in accordance with their terms.
Section 4.3 Conflicts.
In the event of a conflict between the terms and conditions of the
Indenture and the terms and conditions of this Eighth Supplemental Indenture,
then the terms and conditions of this Eighth Supplemental Indenture shall
prevail.
Section 4.4 Counterpart Originals.
The parties may sign any number of copies of this Eighth
Supplemental Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
Section 4.5 Headings, Etc.
The headings of the Sections of this Eighth Supplemental Indenture
have been inserted for convenience of reference only, are not to be considered a
part hereof and shall in no way modify or restrict any of the terms or
provisions hereof.
Section 4.6 Trustee's Disclaimer.
The recitals contained herein shall be taken as the statements of
the Company and the Guarantors and the Trustee assumes no responsibility for
their correctness. The Trustee makes no representation as to the validity or
sufficiency of this Eighth Supplemental Indenture.
[Signatures on following pages]
4
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Eighth Supplemental Indenture as of the date first written above.
ATLANTIC EXPRESS TRANSPORTATION CORP.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: President
Attest:
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Chief Financial Officer
GUARANTORS:
AIRPORT SERVICES, INC. BROOKFIELD TRANSIT INC.
AMBOY BUS CO., INC. CENTRAL NEW YORK
ATLANTIC-CHITTENANGO REAL COACH SALES & SERVICE, INC.
PROPERTY CORP. COURTESY BUS CO., INC.
ATLANTIC-CONN. TRANSIT, INC. ▇▇▇▇▇ BUS SERVICE, INC.
ATLANTIC EXPRESS COACHWAYS, INC. GROOM TRANSPORTATION, INC.
ATLANTIC EXPRESS NEW G.V.D. LEASING CO., INC.
ENGLAND, INC. ▇▇▇▇▇ ▇▇▇▇▇▇▇ LIMO SERVICE, INC.
ATLANTIC EXPRESS OF JERSEY BUS SALES, INC.
CALIFORNIA, INC. JERSEY BUSINESS LAND CO. INC.
ATLANTIC EXPRESS OF ▇. ▇▇▇▇, INC.
ILLINOIS, INC. ▇▇▇▇▇▇▇▇ TRANSPORTATION, INC.
ATLANTIC EXPRESS OF L.A. INC. METRO AFFILIATES, INC.
ATLANTIC EXPRESS OF METROPOLITAN ESCORT SERVICE, INC.
MISSOURI, INC. MERIT TRANSPORTATION CORP.
ATLANTIC EXPRESS OF NEW MIDWAY LEASING INC.
JERSEY, INC. MOUNTAIN TRANSIT, INC.
ATLANTIC EXPRESS OF ▇▇▇▇▇▇▇ BUS SERVICE, INC.
PENNSYLVANIA, INC. ▇▇▇▇▇▇▇ CAPITAL CORP.
ATLANTIC EXPRESS OF SOUTH ▇▇▇▇▇▇▇ EQUITY CORP.
CAROLINA, INC. ▇. ▇▇▇▇▇ BUS SERVICE, INC.
ATLANTIC-▇▇▇▇▇▇, INC. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ & SON, INC.
ATLANTIC MEDFORD, INC. STATEN ISLAND BUS, INC.
ATLANTIC PARATRANS, INC. TEMPORARY TRANSIT SERVICE, INC.
ATLANTIC PARATRANS OF T-NT BUS SERVICE, INC.
ARIZONA, INC. TRANSCOMM, INC.
ATLANTIC PARATRANS OF WINSALE, INC.
COLORADO, INC. WRIGHTHOLM BUS LINE, INC.
ATLANTIC PARATRANS OF 180 JAMAICA CORP.
KENTUCKY INC. 201 WEST ▇▇▇▇▇▇▇ REALTY, INC.
ATLANTIC PARATRANS OF NYC, INC.
ATLANTIC PARATRANS OF
PENNSYLVANIA, INC.
ATLANTIC TRANSIT, CORP.
BLOCK 7932, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: President
THE BANK OF NEW YORK, as Trustee
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇
Title: Vice President
