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EXHIBIT 10.33
TERMININATION AGREEMENT
This Termination Agreement ("Termination Agreement") dated as of March
17, 1999, is entered into by and between GREYHOUND LINES, INC., a Delaware
corporation ("Borrower"). FOOTHILL CAPITAL CORPORATION, a California corporation
as the facility agent (in such capacity "Facility Agent") for the Lenders (as
defined below) and BANKBOSTON, N.A., a national banking association as facility
co-agent for the Lender ("Facility Co-Agent" and collectively with Facility
Agent, the "Agents").
A. borrower has entered into that certain Third Amended and Restated
Loan and Security Agreement, dated as of May 21, 1997 (as amended, the "Loan
Agreement") with various financial institutions party thereto (collectively, the
"Lenders") and the Agents. Initially capitalized terms used but not defined in
this Termination Agreement shall have the meanings given to them in the Loan
Agreement.
B. Pursuant to the terms of the Loan Agreement and the other Loan
Documents the Lenders have made certain loans to the borrower, and have arranged
for the issuance of, or have guaranteed the reimbursement of, certain letters of
credit for the account of the Borrower that are outstanding as of the date
hereof (the "Existing Letters of Credit").
C. Borrower has notified Facility Agent that it intends to terminate
the Loan Agreement, repay in full all non-contingent Obligations existing under
the Loan Documents, and back up all outstanding Letters of Credit as provided in
the Loan Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and for other good and valuable consideration, the parties agree as
follows:
1. Payment of Pay-Out Amount and Deposit. Upon (a) payment to Facility
Agent (for the benefit of the Lenders) of the amount specified in Schedule 1
attached hereto ("Pay-Out Amount") and (b) the receipt by Facility Agent of
"back up" letters of credit in all respects satisfactory to Agents (the "Backup
LCs") in an amount equal to at least 102% of the maximum amount of the Lender
Group's obligations under the Existing Letters of Credit specified in Schedule 1
(the meeting of both such conditions constituting the "Payoff") all of the
obligations and liabilities (exclusive of any indemnification by Borrower or its
subsidiaries of Agents or Lenders contained herein or in the Loan Documents and
all non-liquidated and contingent obligations of Borrower owing to the Lender
Group) of Borrower or its subsidiaries under the Loan Documents shall be
terminated and satisfied in full. Agents hereby confirm to Borrower that payment
to the Facility Agent of the Pay-Out Amount and receipt by the Facility Agent of
the Backup LCs will not cause any prepayment penalty or other charge under the
Loan Agreement except as specified in Schedule 1.
2. Effect of Payoff. Agents hereby agree that upon the Payoff (a) all
security interests, mortgages and liens which Borrower or any of its
subsidiaries may have granted to the Facility Agent pursuant to the Loan
Documents will be released and terminated, (b) all security interests of the
Facility agent in the stock of Borrower's subsidiaries will be released and
terminated, and (c) all lockbox, blocked depository account, or similar
agreements with La Salle National Bank, Chase Texas and Questpoint concerning
the Borrower shall be terminated, and all funds received by the Facility Agent
in any related accounts after the Payoff promptly will be returned to the
Borrower; and (d) the Borrower and its subsidiaries will have no further
liability or obligation (exclusive of any indemnification by borrower or its
subsidiaries of Agents or Lenders contained herein or in the Loan Documents and
all non-liquidated and contingent obligations of Borrower or its subsidiaries
owing to the Agents or lenders) under or in connection with the Loan Documents.
3. Deliver of Lien Releases. Following the Payoff, the Facility Agent
will deliver to Borrower UCC termination statements relating to the UCC's filed
in favor of Facility Agent and shall return to the Borrower all certificates of
title in the Facility Agent's possession respecting the Borrower's or its
subsidiaries' motor vehicles
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and execute any required releases of its lien with respect thereto. Facility
Agent has prepared some of the releases and reconveyances relating to the deeds
of trust and mortgages securing the Loan Documents which shall also be delivered
to Borrower following the Payoff. On a post termination basis, the Facility
Agent has agreed to execute and deliver to Borrower all additional releases,
termination statements, reconveyances of real property, and other agreements in
connection with releasing any lien or security interest it may have pursuant to
the Loan Documents (collectively, the "Lien Releases"). The Borrower
acknowledges that it has instructed the Facility Agent to halt all work that the
Facility Agent and its attorneys have been performing in preparing the Lien
Releases and has undertaken all responsibility for preparing the Lien Releases;
and that, as a result, if such attorneys are requested in the future to prepare
(or review) such Lien Releases in bulk or individually, the time and costs of
such counsel shall be paid for by Borrower. The Facility Agent agrees that it
will promptly execute all additional Lien Releases reasonably requested by the
Borrower in the future and will cooperate with Borrower rewarding same.
4. Release of Certain Claims. Upon the Payoff, and in consideration of
the Lender Group discounting the breakage fees that would otherwise be payable
under Section 2.17(d) of the Loan Agreement associated with the prepayment of
the Eurodollar Rate Loans existing at such time and the Agents' agreements
contained in this Termination Agreement, the Borrower hereby releases and
forever discharges the Agents and the rest of the Lender Group and their
respective successors, representatives, assigns, officers, directors, agents,
employees, and attorneys, and each of them (collectively the "Affiliated
Parties"), of and from any and all claims, demands, debts, liabilities, actions
and causes of action of every kind and character and the Borrower hereby agrees
to indemnify and hold the Lender Group harmless from any and all loss, cost,
damage or expense (including, but not limited to, attorney's fees) which the
Lender Group of the Affiliated Parties may suffer or incur at any time, based on
or arising out of any delay or failure to release and reconvey the liens held by
or assigned to the Facility Agent and recorded against the real and personal
property of the Borrower or any of its subsidiaries; provided, however, that
such release and indemnification shall not excuse any party's compliance with
the terms of Section 3 above.
5. No Assignment of Claims; Advice of Counsel. The Borrower hereby
warrants and represents that neither it nor any of its subsidiaries has assigned
or in any other way conveyed, transferred, or encumbered all or any portion of
the claims or rights covered by the release set forth above. The Borrower
executes this Termination Agreement voluntarily, after consultation with
counsel, and with full knowledge of it significance.
6. Indemnity for Dishonored Items. The Borrower acknowledges that the
Pay-Out Amount is calculated on the premise that all checks and other
instruments delivered by Borrower to the Facility Agent have been or will be
honored and paid in full. The Borrower agrees to indemnify and hold the Lender
Group harmless from any and all loss, cost, damage or expense (including, but
not limited to attorneys' fees) which the Lender Group may suffer or incur at
any time as a result of any non-payment, claim, refund or dishonor of any checks
or other similar items which have been credited by the Facility Agent to the
account of the Borrower, together with any expenses or other charges incident
thereto.
Notwithstanding anything to the contrary contained herein, the
Facility Agent reserves all of its right in and to any checks or similar
instruments for payment of money heretofore received by the Facility Agent in
connection with the Facility Agent's arrangements with the Borrower, and all of
its rights to any money due or to become due under said checks or similar
instruments and/or all of the Facility Agent's claims thereon.
Notwithstanding anything to the contrary contained herein, in
the event any payment made to, or other amount or value received by the Facility
Agent from or for the account of the Borrower is avoided, rescinded, set aside
or must otherwise be returned or repaid by the Facility Agent or any of the
Lenders whether in any bankruptcy, reorganization, insolvency or similar
proceeding involving the Borrower or otherwise, the indebtedness intended to be
repaid thereby shall be reinstated (without further action by any party) and
shall be enforceable against the Borrower. In such event, the Borrower shall be
and remain liable to the Facility Agent and the Lenders for the amount so repaid
or recovered to the same extent as if such amount had never originally been
received by the Facility Agent and if Borrower fails or refuses to pay Facility
Agent for any amounts repaid by or recovered from the Facility Agent, all liens
shall automatically attach to all of the real and personal property of Borrower
with the same lien priority that such liens would have enjoyed if Facility Agent
had not released its liens. Borrower shall perform all acts reasonably required
by Facility Agent to accomplish such results.
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7. Sole Agreement; Amendments. This Termination Agreement, the Loan
Documents, and the other written documents and instruments between the parties
set fort in full all of the representations and agreements of the parties, and
this Termination Agreement may not be modified or amended, nor may any rights
hereunder be waived, except in a writing signed by the parties hereto.
8. Fees; Costs; Deposit. The Borrower agrees that it will pay the
Facility Agent's costs (including its attorneys' fees) incurred in connection
with this Termination Agreement, and any instruments or documents contemplated
hereunder, including those incurred in connection with the review, approval,
execution and delivery of such Lien Releases prepared by the Borrower, and in
connection with preparing any Lien Releases that the Borrower requests such
counsel to prepare. The Borrower agrees that the Pay-Out Amount will include a
deposit in the amount shown on Schedule 1 (the "Deposit") which shall be held by
the Facility Agent. To the extent that the Facility Agent incurs such fees and
costs after the Payoff, whether arising out of Section 3 or this Section 8
hereof or otherwise, the Facility Agent shall be permitted to recoup such costs
from the Deposit. In addition, while any Existing Letters of Credit are
outstanding, the Facility Agent may charge any Letter of Credit fees accruing
thereon (as calculated in accordance with the terms of the Loan Agreement), and
recoup such fees from the Deposit. Moreover, lender may use part of the Deposit
to pay all legal fees and costs that it has incurred prior to the Payoff. Upon
the earlier to occur of (a) June 30,1999 or (b) the Borrower providing the
Facility Agent with a written confirmation that all Lien Releases have been
filed and recorded and that no further Lien Releases shall be required of the
Facility Agent or the Lender Group, and the termination of the Existing Letters
of Credit, the Facility Agent shall return the remaining balance of the Deposit
to the Borrower. The amount and duration of the Deposit shall in no way limit
the Borrower's liability under this Termination Agreement.
9. Counterparts; Effectiveness. This Termination Agreement may be
executed in any number of counterparts and by different parties on separate
counterparts, each of which when so executed and delivered shall be deemed to be
an original. All such counterparts, taken together, shall constitute but one and
the same
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Termination Agreement. This Termination Agreement shall become effective upon
the execution of a counterpart of this Termination Agreement by each of the
parties hereto.
"BORROWER"
GREYHOUND LINES, INC.,
a Delaware corporation
By:
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Type Name: Xxxx Xxxxxxx
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Type Title: Vice President - Finance & Corporate
Development
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"FACILITY AGENT"
FOOTHILL CAPITAL CORPORATION,
a California corporation
By:
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Type Name: Xxx Xxxxxxxxx
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Type Title: Vice-President
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"FACILITY CO-AGENT"
BANK BOSTON, N.A.,
a national banking association
By:
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Type Name: Xxxx Xxxxxxx, Xx.
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Type Title: Director.
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