Exhibit 10.1
AMENDMENT NO. 13 TO SECOND AMENDED AND
RESTATED LOAN AND SECURITY AGREEMENT
------------------------------------
AMENDMENT NO. 13 TO SECOND AMENDED AND RESTATED LOAN AND SECURITY
AGREEMENT, dated as of October 12, 2006 (this "Amendment"), by and among
Wachovia Bank, National Association, successor by merger to Congress Financial
Corporation, in its capacity as agent (in such capacity, "Agent"), acting for
and on behalf of Lenders (as hereinafter defined), the financial institutions
from time to time parties to the Loan Agreement (as hereinafter defined) as
lenders ("Lenders"), Atlantic Express Transportation Corp., a New York
corporation ("AETC" or "Parent"), Amboy Bus Co., Inc., a New York corporation
("Amboy"), Atlantic Express Coachways, Inc., a New Jersey corporation
("Coachways"), Atlantic Express of L.A., Inc., a California corporation
("AELA"), Atlantic Express of Missouri Inc., a Missouri corporation ("AE
Missouri"), Atlantic Express of New Jersey, Inc., a New Jersey corporation
("AENJ"), Atlantic Express of Pennsylvania, Inc., a Delaware corporation
("AEP"), Atlantic-▇▇▇▇▇▇, Inc., a New York corporation ("AH"), Atlantic
Paratrans, Inc., a New York corporation ("AP"), Atlantic Paratrans of NYC, Inc.,
a New York corporation ("APNY"), Atlantic Queens Bus Corp., a New York
corporation ("AQ"), Block 7932, Inc., a New York corporation ("Block"),
Brookfield Transit Inc., a New York corporation ("Brookfield"), Courtesy Bus
Co., Inc., a New York corporation ("Courtesy"), G.V.D. Leasing Co., Inc., a New
York corporation ("GVD"), 180 Jamaica Corp., a New York corporation ("Jamaica"),
Merit Transportation Corp. a New York corporation ("Merit"), Metro Affiliates,
Inc., a New York corporation ("Metro"), Metropolitan Escort Service, Inc., a New
York corporation ("Metropolitan Escort"), Midway Leasing Inc., a New York
corporation ("Midway"), Staten Island Bus, Inc., a New York corporation
("SI-Bus"), Temporary Transit Service, Inc., a New York corporation ("TTS"), 201
West ▇▇▇▇▇▇▇ Realty, Inc., a California corporation ("▇▇▇▇▇▇▇"), Wrightholm Bus
Line, Inc., a Vermont corporation ("Wrightholm"), Atlantic Transit Corp., a New
York corporation ("ATC"), Atlantic Express New England, Inc., a Massachusetts
corporation ("AE-NE"), Atlantic Express of California, Inc., a California
corporation ("AE-CA"), Atlantic Express of Illinois, Inc., an Illinois
corporation ("AE-I"), Atlantic Paratrans of Arizona, Inc., an Arizona
corporation ("AP-AZ"), ▇▇▇▇▇ Bus Service, Inc., a Massachusetts corporation
("▇▇▇▇▇"), Groom Transportation, Inc., a Massachusetts corporation ("Groom"),
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Limo Service, Inc., a Massachusetts corporation ("Limo"), ▇.
▇▇▇▇, Inc., a New York corporation ("Corr"), Mountain-Atlantic, Inc., formerly
known as Mountain Transit, Inc., a Vermont corporation ("Mountain"), Jersey
Business Land Co., Inc., a New Jersey corporation ("JBL"), ▇. ▇▇▇▇▇ Bus Service,
Inc., a Massachusetts corporation ("FBS"), ▇▇▇▇▇▇▇ Bus Service, Inc., a New York
corporation ("RBS"), ▇▇▇▇▇▇▇ Capital Corp., a New York corporation ("RBC"),
▇▇▇▇▇▇▇ Equity Corp. a New York corporation ("REC"), ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ & Son,
Inc., a Massachusetts corporation ("▇▇▇▇▇▇▇▇"), Atlantic Express of Upstate New
York, Inc., formerly known as T NT Bus Service, Inc., a New York corporation
("TNT"), Transcomm, Inc., a Massachusetts corporation ("Transcomm"), Winsale,
Inc., a New Jersey corporation ("Winsale"), Atlantic Escorts Inc., a New York
corporation ("Atlantic Escorts", and together with AETC, Amboy, Coachways, AELA,
AE Missouri, AENJ, AEP, AH, AP, APNY, AQ, Block, Brookfield, Courtesy, GVD,
Jamaica, Merit, Metro, Metropolitan Escort, Midway, SI-Bus, TTS, ▇▇▇▇▇▇▇,
Wrightholm, ATC, AE-NE, AE-CA, AE-I, AP-AZ, Fiore, Groom, Limo, Corr, Mountain,
JBL, FBS, RBS, RBC, REC, ▇▇▇▇▇▇▇▇, TNT, Transcomm, and Winsale each individually
a "Borrower" and collectively, "Borrowers"), Central New York Reorganization
Corp., formerly known as Central New York Coach Sales & Service, Inc., a New
York corporation ("Central"), and Jersey Bus Sales, Inc., a New Jersey
corporation ("Jersey" and together with Central, each individually a "Guarantor"
and collectively, "Guarantors")..
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, Agent, Lenders, Borrowers and Guarantors have entered into
financing arrangements pursuant to which Agent and Lenders may make loans and
advances and provide other financial accommodations to Borrowers as set forth in
the Second Amended and Restated Loan and Security Agreement, dated as of April
22, 2004, by and among Agent, Borrowers, Guarantors and Lenders, as amended by
Amendment No. 1 to Second Amended and Restated Loan and Security Agreement,
dated as of June 14, 2004, Amendment No. 2 to Second Amended and Restated Loan
and Security Agreement, dated as of September 15, 2004, Amendment No. 3 to
Second Amended and Restated Loan and Security Agreement, dated as of October 14,
2004, Amendment No. 4 to Second Amended and Restated Loan and Security
Agreement, dated as of January 5, 2005, Amendment No. 5 to Second Amended and
Restated Loan and Security Agreement, dated as of March 3, 2005, Amendment No. 6
to Second Amended and Restated Loan and Security Agreement, dated as of April
13, 2005, Amendment No. 7 to Second Amended and Restated Loan and Security
Agreement, dated as of April 29, 2005, Amendment No. 8 to Second Amended and
Restated Loan and Security Agreement, dated as of June 30, 2005, Amendment No. 9
to Second Amended and Restated Loan and Security Agreement, dated as of August
15, 2005, Amendment No. 10 to Second Amended and Restated Loan and Security
Agreement, dated as of August 25, 2005, Amendment No. 11 to Second Amended and
Restated Loan and Security Agreement, dated as of November 3, 2005, and
Amendment No. 12 to Second Amended and Restated Loan and Security Agreement,
dated as of August 31, 2006 (as amended hereby and as the same may hereafter be
further amended, modified, supplemented, extended, renewed, restated or replaced
the "Loan Agreement", and together with all agreements, documents and
instruments at any time executed and/or delivered in connection therewith or
related thereto, as from time to time amended, modified, supplemented, extended,
renewed, restated or replaced, collectively, the "Financing Agreements"). All
capitalized terms used herein shall have the meanings assigned thereto in the
Loan Agreement and the other Financing Agreements, unless otherwise defined
herein;
WHEREAS, Borrowers and Guarantors have requested that Agent and Lenders
make certain amendments to the Loan Agreement, and Agent and Lenders are willing
to agree to such request, and make certain other amendments to the Loan
Agreement, subject to the terms and conditions set forth herein; and
WHEREAS, by this Amendment, Agent, Lenders, Borrowers and Guarantors wish
and intend to evidence such amendments.
NOW, THEREFORE, in consideration of the foregoing and the mutual agreements
and covenants contained herein, the parties hereto agree as follows:
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1. Definitions.
(a) Additional Definitions. As used herein, in the Loan Agreement or in
any of the other Financing Agreements, the following terms shall have
the meanings given to them below, and the Loan Agreement shall be
deemed and is hereby amended to include, in addition and not in
limitation, the following definitions in their proper alphabetical
order:
(i) "Amendment No. 13" shall mean Amendment No. 13 to Second Amended
and Restated Loan and Security Agreement, dated October 12,
2006, among Borrowers, Guarantors, Agent and Lenders, as the
same now exists or may hereafter be amended, modified,
supplemented, extended, renewed, restated or replaced.
(ii) "Applicable Margin" shall mean, at any time, as to the interest
rate for Prime Rate Loans and the interest rate for Eurodollar
Rate Loans, the applicable percentage (on a per annum basis) set
forth below if the Quarterly Average Excess Availability of
Borrowers for the immediately preceding fiscal quarter is at or
within the amounts indicated for such percentage:
Applicable Applicable
Quarterly Average Prime Rate Eurodollar Rate
Tier Excess Availability Margin Margin
---- ------------------------------------ ---------- ---------------
(i) Equal to or greater than $15,000,000 0% 2.25%
(ii) Less than $15,000,000 and equal to .50% 2.75%
or greater than $10,000,000
(iii) Less than $10,000,000 and equal to .75% 3.00%
or greater than $5,000,000
(iv) Less than $5,000,000 1.00% 3.25%
provided, that, the Applicable Margin shall be calculated and
established once each fiscal quarter and shall remain in effect
until adjusted thereafter during the next fiscal quarter.
(iii) "Quarterly Average Excess Availability" shall mean, at any time,
the daily average Excess Availability of Borrowers for the
immediately preceding fiscal quarter as calculated by Agent in
good faith.
(b) Amendments to Definitions.
(i) The definition of "Accounts Purchase Agreement" set forth in the
Loan Agreement is hereby deleted in its entirety and replaced
with the following:
" 'Accounts Purchase Agreement" shall mean the Accounts
Purchase and
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Sale Agreement, dated as of June 14, 2004, among Wachovia,
as Purchaser, Amboy, AE-CA, AE-I, AELA, AE Missouri, AEP,
APNY, AQ, Courtesy, Corr, RBS, SI- Bus, TNT, Transcomm and
Winsale, as Sellers, and AETC, as amended by Amendment No. 1
to Accounts Purchase and Sale Agreement, dated as of June
28, 2004, Amendment No. 2 to Accounts Purchase and Sale
Agreement, dated as of November 3, 2005, and Amendment No. 3
to Accounts Purchase and Sale Agreement, dated as of the
date of Amendment No. 13, as the same now exists or may
hereafter be further amended, modified, supplemented,
extended, renewed, restated or replaced."
(ii) The definition of "Administrative Expense Reserve" set forth in
Section 1.5 of the Loan Agreement is hereby deleted in its
entirety and replaced with the following:
"1.5 Intentionally Deleted."
(iii) The definition of "Intercreditor Agreement" set forth in Section
1.56 of the Loan Agreement is hereby deleted in its entirety and
replaced with the following:
"1.56 'Intercreditor Agreement' shall mean the Amended and
Restated Intercreditor Agreement, dated March 3, 2005, by
and among Agent and Noteholder Collateral Agent, as
acknowledged and agreed to by Borrowers and Guarantor, as
amended by Amendment No. 1 to Amended and Restated
Intercreditor Agreement, dated as of the date of Amendment
No.13, as the same now exists or may hereafter be further
amended, modified, supplemented, extended, renewed, restated
or replaced."
(iv) The definition of "Interest Rate" set forth in Section 1.59 of
the Loan Agreement is hereby deleted in its entirety and
replaced with the following:
"1.59 'Interest Rate' shall mean,
(a) Subject to clauses (b) and (c) of this definition
below: (i) as to Loans which are Prime Rate Loans, a
rate equal to one (1%) percent per annum in excess of
the Prime Rate, and (ii) as to Loans which are
Eurodollar Rate Loans, a rate equal to three and
one-quarter (3.25%) percent per annum in excess of the
Adjusted Eurodollar Rate (in each case, based on the
Eurodollar Rate applicable for the Interest Period
selected by a Borrower, or by Administrative Borrower
on behalf of such Borrower, as in effect three (3)
Business Days after the date of receipt by Agent of the
request of or on behalf of such Borrower (or
Administrative Borrower on behalf of such Borrower) for
such Eurodollar Rate Loans in accordance with the terms
hereof, whether such rate is higher or lower than any
rate previously quoted to any Borrower or Guarantor).
(b) Subject to clause (c) of this definition below,
effective as of the first (1st) day of the second (2nd)
month of each calendar quarter (commencing with the
calendar quarter ending on or about March 31, 2007),
the Interest Rate payable by Borrowers shall be
increased or decreased, as the case may be, (i) as to
Prime Rate Loans, to the rate equal to the Applicable
Margin on
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a per annum basis in excess of the Prime Rate, and (ii)
as to Eurodollar Rate Loans, to the rate equal to the
Applicable Margin on a per annum basis in excess of the
Adjusted Eurodollar Rate.
(c) Notwithstanding anything to the contrary contained in
clauses (a) and (b) of this definition, the Applicable
Margin otherwise used to calculate the Interest Rate
for Prime Rate Loans and Eurodollar Rate Loans shall be
the highest percentage set forth in the definition of
the term Applicable Margin (without regard to the
amount of Quarterly Average Excess Availability) plus
two (2%) percent per annum, at Agent's option, or at
the written direction of the Required Lenders, without
notice (i) either (A) for the period on and after the
effective date of termination or non-renewal hereof
until such time as all Obligations are indefeasibly
paid and satisfied in full in immediately available
funds or (B) for the period from and after the date of
the occurrence of any Event of Default, and for so long
as such Event of Default is continuing as determined by
Agent and (ii) on the Revolving Loans to any Borrower
at any time outstanding in excess of the Borrowing Base
or on LC Advances to any Borrower at any time
outstanding in excess of the Letter of Credit Facility
Limit (whether or not such excess(es) arise or are made
with or without Agent's or any Lender's knowledge or
consent and whether made before or after an Event of
Default)."
(v) The definition of "Junior Participation Agreement" set forth in
the Loan Agreement is hereby deleted in its entirety and
replaced with the following:
" 'Junior Participation Agreement' shall mean the Junior
Participation Agreement, dated as of October 14, 2004, among
Wachovia, GSCP II Holdings (AE), L.L.C. ("Holdings"), GSC
Recovery II, L.P., and GSC Recovery II Asset Trust, as
amended by Amendment No. 1 to Junior Participation
Agreement, dated as of the date of Amendment No. 13, as same
now exists or may hereafter be further amended, modified,
supplemented, extended, renewed, restated or replaced."
(vi) The definition of "Note Indenture" set forth in Section 1.78 of
the Loan Agreement is hereby deleted in its entirety and
replaced with the following:
"1.78 'Note Indenture' shall mean the Indenture, dated April
22, 2004, among Parent, as Issuer, The Bank of New York, as
Trustee and Collateral Agent, and the guarantors named
therein, as amended by the First Supplemental Indenture,
dated as of March 3, 2005, the Second Supplemental
Indenture, dated as of June 30, 2005, and the Third
Supplemental Indenture, dated as of March 31, 2006, as same
now exists or may hereafter be further amended, modified,
supplemented, extended, renewed, restated or replaced."
(vii) The definition of "Reserves" set forth in Section 1.102 of the
Loan Agreement is hereby amended by deleting the reference to
"and the Administrative Expense Reserve" in the third sentence
of such definition.
(viii) The definition of "Revolving Loan Limit" set forth in Section
1.103 of
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the Loan Agreement is hereby deleted in its entirety and
replaced with the following:
"1.103 'Revolving Loan Limit' shall mean $30,000,000."
(ix) The definition of "Special Reserve" set forth in Section 1.109
of the Loan Agreement is hereby deleted in its entirety and
replaced with the following:
"1.109 'Special Reserve' shall mean a Reserve established by
Agent, at its option, in the amount of $2,500,000 on July
1st of each calendar year, which Special Reserve shall be
reduced to $1,500,000 on August 1st of the same calendar
year (provided, that, no Default or Event of Default shall
exist or have occurred and be continuing on such date and
immediately after giving effect to any such reduction)."
(c) Interpretation. For purposes of this Amendment, unless otherwise
defined herein, all terms used herein shall have the respective
meanings assigned to such terms in the Loan Agreement and the other
Financing Agreements.
2. Minimum EBITDA. Section 9.17 of the Loan Agreement is hereby amended by
deleting such Section in its entirety and replacing it with the following:
" 9.17 Minimum EBITDA. At the end of each calendar month,
commencing with the month ended June 30, 2005, for the
immediately preceding twelve (12) consecutive month period,
Parent and its Subsidiaries shall have EBITDA of not less
than the following amounts:
Minimum
EBITDA
for
immediately
preceding
twelve (12)
Month(s) Ended months
------------------------------------ ------------
June 2005 and each month thereafter $11,000,000
through August 2005
------------------------------------ ------------
September 2005 $13,000,000
------------------------------------ ------------
October 2005 $13,000,000
------------------------------------ ------------
November 2005 $15,000,000
------------------------------------ ------------
December 2005 $18,000,000
------------------------------------ ------------
January 2006 $18,000,000
------------------------------------ ------------
February 2006 $19,500,000
------------------------------------ ------------
March 2006 and each month thereafter $23,000,000
through March 2007
------------------------------------ ------------
April 2007 $24,000,000
------------------------------------ ------------
May 2007 $25,000,000
------------------------------------ ------------
June 2007 and each month thereafter $26,000,000
------------------------------------ ------------
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3. Term.
(a) Section 13.1(a) of the Loan Agreement is hereby amended by deleting
the reference to "April 22, 2007" and replacing it with "February 29,
2008".
(b) Section 13.1 of the Loan Agreement is hereby amended by adding the
following new subsection (d) to the end of such Section:
"(d) Notwithstanding anything to the contrary contained in
Section 13.1(c) hereof, in the event that on and after April 23,
2007 Borrowers have provided written notice to Agent of the
termination of this Agreement in accordance with Section 13.1(a)
hereof in connection with the occurrence of a Change of Control
within the meaning of clauses (a) or (c) of the definition of
"Change of Control" and this Agreement is terminated prior to the
end of the then current term in connection therewith, then
Borrowers shall not be required to pay the early termination fee
otherwise payable pursuant to Section 13.1(c) hereof so long as
each of the following conditions are satisfied: (i) Agent and
Lenders shall have consented to such Change of Control, (ii) as
of the date of receipt by Agent of such written notice from
Borrowers, no Event of Default shall exist or have occurred and
be continuing and Agent shall not have exercised its right to
terminate this Agreement, (iii) all of the Obligations shall have
been fully and finally discharged and paid; and (iv) Agent shall
have received cash collateral (or at Agent's option, a letter of
credit issued for the account of Borrowers) from Borrowers, all
as provided in Section 13.1(a) hereof."
4. Amendment Fee. In consideration of this Amendment and, in addition to, and
not in limitation of, any other fee paid or payable to Agent or any Lender
under any of the Financing Agreements at any time, Borrowers shall pay to
Agent (for the benefit of Lenders), or Agent, at its option, may charge the
loan account of Borrowers maintained by Agent, an amendment fee in the
amount of $150,000 (the "Amendment Fee"), which Amendment Fee is fully
earned on the date hereof and which shall be payable in two (2)
installments, with the first installment in the amount of $100,000 payable
on the date hereof and the second installment in the amount of $50,000
payable on April 22, 2007, provided, that, the entire amount of the
Amendment Fee shall become immediately due and payable, without notice or
demand, at Agent's option, upon the occurrence of an Event of Default or
termination or non-renewal of the Loan Agreement. Notwithstanding anything
the foregoing, in the event that on and after the date of Amendment No. 13
but prior to April 23, 2007 Borrowers have provided written notice to Agent
of the termination of this Agreement in accordance with Section 13.1(a)
hereof in connection with the occurrence of a Change of Control within the
meaning of clauses (a) or (c) of the definition of "Change of Control" and
the Loan Agreement is terminated prior to April 23, 2007 in connection
therewith, then Borrowers shall not be required to pay the second
installment of the Amendment Fee otherwise payable on April 22, 2007
pursuant to this Section 4 so long as each of the following conditions are
satisfied: (i) Agent and Lenders shall have consented to such Change of
Control, (ii) as of the date of receipt by Agent of such written notice
from Borrowers, no Event
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of Default shall exist or have occurred and be continuing and Agent shall
not have exercised its right to terminate this Agreement, (iii) all of the
Obligations shall have been fully and finally discharged and paid; and (iv)
Agent shall have received cash collateral (or at Agent's option, a letter
of credit issued for the account of Borrowers) from Borrowers, all as
provided in Section 13.1(a) hereof.
5. Additional Representations, Warranties and Covenants. Each Borrower and
Guarantor, jointly and severally, represents, warrants and covenants with
and to Agent and Lenders as follows, which representations, warranties and
covenants are continuing and shall survive the execution and delivery
hereof, and the truth and accuracy of, or compliance with each, together
with the representations, warranties and covenants in the other Financing
Agreements, being a continuing condition of the making of Loans by Agent or
any Lender to Borrowers:
(a) This Amendment and the other Financing Agreements executed and/or
delivered by any Borrower or Guarantor in connection herewith
(together with this Amendment, collectively, the "Amendment
Documents") have been duly authorized, executed and delivered by all
necessary action on the part of each Borrower and Guarantor which is a
party hereto and, if necessary, their respective members or
stockholders, as the case may be, and are in full force and effect as
of the date hereof, as the case may be, and the agreements and
obligations of Borrowers and Guarantors contained herein or therein
constitute legal, valid and binding obligations of Borrowers and
Guarantors enforceable against them in accordance with their terms.
(b) As of the date hereof, all of the representations and warranties set
forth in the Loan Agreement and the other Financing Agreements are
true and correct in all material respects on and as of the date hereof
as if made on the date hereof, except to the extent any such
representation or warranty is made as of a specified date, in which
case such representation or warranty shall have been true and correct
as of such date.
(c) Neither the execution, delivery and performance of this Amendment or
any other Amendment Document, nor the consummation of any of the
transactions contemplated herein or therein (i) are in contravention
of law or any indenture, agreement or undertaking to which any
Borrower or Guarantor is a party or by which any Borrower or Guarantor
or its property are bound (including without limitation the Note
Indenture and the Third Priority Agreements) or (ii) violates any
provision of the certificate of incorporation, certificate of
formation, operating agreement, by-laws or other governing documents
of any Borrower or Guarantor.
(d) After giving effect to the increase in the Revolving Loan Limit and
the Maximum Credit provided for herein, the Indebtedness under the
Loan Agreement constitutes "Permitted Indebtedness" under (and as
defined in) the Note Indenture.
(e) No Default or Event of Default exists or has occurred and is
continuing as of the date of this Amendment.
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6. Conditions Precedent. The effectiveness of the amendments contained herein
shall be subject to the satisfaction of each of the following, in a manner
satisfactory to Agent and its counsel:
(a) Agent shall have received this Amendment, duly authorized, executed
and delivered by Borrowers and Guarantors;
(b) Agent shall have received, in form and substance satisfactory to
Agent, Amendment No. 3 to the Accounts Purchase Agreement, duly
authorized, executed and delivered by Parent and each Seller (as
defined in the Accounts Purchase Agreement);
(c) Agent shall have received, in form and substance satisfactory to
Agent, an amendment to the Intercreditor Agreement, duly authorized,
executed and delivered by Noteholder Collateral Agent and Third
Priority Collateral Agent and duly acknowledged by Borrowers, which
amendment shall, among other things, modify clause (a)(i) of the
definition of "Revolving Loan Priority Amount" in the Intercreditor
Agreement by deleting the reference to "$23,000,000" and replacing it
with "$33,000,000";
(d) Agent shall have received, in form and substance satisfactory to
Agent, Amendment No. 2 to the Junior Participation Agreement, duly
authorized, executed and delivered by Junior Participants and Buyer
(as defined in the Junior Participation Agreement);
(e) Agent shall have received, in form and substance satisfactory to
Agent, an opinion of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇, PLLC, counsel for
Borrowers and Guarantors, with respect to this Amendment and such
other matters as Agent may request;
(f) Agent shall have received, in form and substance satisfactory to
Agent, a certificate of the Chief Financial Officer of Administrative
Borrower certifying, among other things, that: (A) after giving effect
to the increase in the Revolving Loan Limit and the Maximum Credit,
the Indebtedness of Borrowers to Agent and Lenders under the Loan
Agreement shall continue to be "Permitted Indebtedness" for all
purposes under the Note Indenture, and (B) after giving effect to any
such increase in the Revolving Loan Limit and the Maximum Credit, the
performance of the terms and conditions of the Loan Agreement and the
other Financing Agreements and the incurrence of Obligations by
Borrowers and Guarantors thereunder (1) are within each Borrower's and
Guarantor's corporate powers, (2) have been duly authorized by each
Borrower and Guarantor, (3) are not in contravention of law or the
terms of any Borrower's or Guarantor's certificate of incorporation,
by laws, or other organizational documentation, or any indenture
(including the Note Indenture), agreement or undertaking to which any
Borrower or Guarantor is a party or by which any Borrower or Guarantor
or its property are bound, and (4) will not result in the creation or
imposition of, or require or give rise to any obligation to grant, any
lien, security interest, charge or other encumbrance upon any property
of any Borrower or Guarantor, other than the liens in favor of Agent;
and
(g) No Default or Event of Default shall have occurred and be continuing
as of the date of this Amendment.
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7. Effect of this Amendment. Except as expressly set forth herein, no other
amendments, consents, changes or modifications to the Financing Agreements
are intended or implied, and in all other respects the Financing Agreements
are hereby specifically ratified, restated and confirmed by all parties
hereto as of the effective date hereof and Borrowers shall not be entitled
to any other or further amendment or consent by virtue of the provisions of
this Amendment or with respect to the subject matter of this Amendment. To
the extent of conflict between the terms of this Amendment and the other
Financing Agreements, the terms of this Amendment shall control. The Loan
Agreement and this Amendment shall be read and construed as one agreement.
8. Further Assurances. The parties hereto shall execute and deliver such
additional documents and take such additional action as may be necessary or
desirable to effectuate the provisions and purposes of this Amendment.
9. Governing Law. The validity, interpretation and enforcement of this
Amendment and any dispute arising out of the relationship between the
parties hereto shall be governed by the internal laws of the State of New
York but excluding any principles of conflicts of law or other rule of law
that would cause the application of the law of any jurisdiction other than
the laws of the State of New York.
10. Binding Effect. This Amendment shall be binding upon and inure to the
benefit of each of the parties hereto and their respective successors and
assigns.
11. Headings. The headings listed herein are for convenience only and do not
constitute matters to be construed in interpreting this Amendment.
12. Counterparts. This Amendment may be executed in any number of counterparts,
each of which shall be an original and all of which shall together
constitute but one and the same agreement. In making proof of this
Amendment, it shall not be necessary to produce or account for more than
one counterpart thereof signed by each of the parties hereto. Delivery of
an executed counterpart of this Amendment by telefacsimile or other means
of electronic transmission shall have the same force and effect as delivery
of an original executed counterpart of this Amendment. Any party delivering
an executed counterpart of this Amendment by telefacsimile or other means
of electronic transmission also shall deliver an original executed
counterpart of this Amendment, but the failure to deliver an original
executed counterpart shall not affect the validity, enforceability, and
binding effect of this Amendment as to such party or any other party.
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IN WITNESS WHEREOF, Agent, Lenders, Borrowers and Guarantors have caused
these presents to be duly executed as of the day and year first above written.
BORROWERS
---------
Atlantic Express Transportation Corp.
Amboy Bus Co., Inc.
Atlantic Express Coachways, Inc.
Atlantic Express of L.A. Inc.
Atlantic Express of Missouri Inc.
Atlantic Express of New Jersey, Inc.
Atlantic Express of Pennsylvania, Inc.
Atlantic-▇▇▇▇▇▇, Inc.
Atlantic Paratrans, Inc.
Atlantic Paratrans of NYC, Inc.
Atlantic Queens Bus Corp.
Block 7932, Inc.
Brookfield Transit Inc.
Courtesy Bus Co., Inc.
G.V.D. Leasing Co., Inc.
180 Jamaica Corp.
Merit Transportation Corp.
Metro Affiliates, Inc.
Metropolitan Escort Service, Inc.
Midway Leasing Inc.
Staten Island Bus, Inc.
Temporary Transit Service, Inc.
201 West ▇▇▇▇▇▇▇ Realty, Inc.
Wrightholm Bus Line, Inc.
Atlantic Transit Corp.
Atlantic Express New England, Inc.
Atlantic Express of California, Inc.
Atlantic Express of Illinois, Inc.
Atlantic Paratrans of Arizona, Inc.
▇▇▇▇▇ Bus Service, Inc.
Groom Transportation, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇ Limo Service, Inc.
▇. ▇▇▇▇, Inc.
Mountain-Atlantic, Inc.,
formerly known as Mountain Transit, Inc.
Jersey Business Land Co., Inc.
▇. ▇▇▇▇▇ Bus Service, Inc.
▇▇▇▇▇▇▇ Bus Service, Inc.
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
[SIGNATURES CONTINUED FROM PREVIOUS PAGE]
▇▇▇▇▇▇▇ Capital Corp.
▇▇▇▇▇▇▇ Equity Corp.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ & Son, Inc.
Atlantic Express of Upstate New York, Inc.,
formerly known as T-NT Bus Service, Inc.
Transcomm, Inc.
Winsale, Inc.
Atlantic Escorts Inc.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------
Title: Chief Financial Officer
-----------------------
GUARANTORS
----------
JERSEY BUS SALES, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------
Title: Chief Financial Officer
-----------------------
CENTRAL NEW YORK REORGANIZATION CORP.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------
Title: Chief Financial Officer
-----------------------
AGENT AND LENDERS
-----------------
WACHOVIA BANK, NATIONAL ASSOCIATION,
successor by merger to Congress Financial Corporation,
as Agent and as Lender
By: /s/ ▇▇▇▇ ▇▇▇▇
-------------
Title: Vice President
--------------
