Annual Report — Form 10-K Filing Table of Contents
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THIRD
AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
Amendment
No. 3 to Third Amended and Restated Loan and Security Agreement, dated as of
September 25, 2008 (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 (“Parent”), Amboy
Bus Co., Inc., a New York corporation (“Amboy”), Atlantic Escorts Inc., a New
York corporation (“Atlantic Escorts”), Atlantic Express Coachways, Inc., a New
Jersey corporation (“Coachways”), 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 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 Express of Upstate New York, Inc., formerly known as TNT Bus
Service, Inc., a New York corporation (“AE Upstate”), Atlantic Transit Corp., a
New York corporation (“ATC”), Atlantic-Hudson, 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”), Fiore Bus Service,
Inc., a Massachusetts corporation (“Fiore”), Groom Transportation, Inc., a
Massachusetts corporation (“Groom”), G.V.D. Leasing Co., Inc., a New York
corporation (“GVD”), James McCarthy Limo Service, Inc., a Massachusetts
corporation (“Limo”), Jersey Business Land Co., Inc., a New Jersey corporation
(“JBL”), K. Corr, Inc., a New York corporation (“Corr”), 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”),
180 Jamaica Corp., a New York corporation (“Jamaica”), R. Fiore Bus Service,
Inc., a Massachusetts corporation (“FBS”), Raybern Bus Service, Inc., a New York
corporation (“RBS”), Raybern Capital Corp., a New York corporation (“RBC”),
Raybern Equity Corp., a New York corporation (“REC”), Robert L. McCarthy &
Son, Inc., a Massachusetts corporation (“McCarthy”), Staten Island Bus, Inc., a
New York corporation (“SI-Bus”), Temporary Transit Service, Inc., a New York
corporation (“TTS”), Transcomm, Inc., a Massachusetts corporation (“Transcomm”),
Winsale, Inc., a New Jersey corporation (“Winsale” and together with Parent,
Amboy, Atlantic Escorts, Coachways, AE-NE, AE-CA, AE-I, AELA, AE Missouri,
AENJ,
AEP, AE Upstate, ATC, AH, AP, APNY, AQ, Block, Brookfield, Courtesy, Fiore,
Groom, GVD, Limo, JBL, Corr, Merit, Metro, Metropolitan Escort, Midway, Jamaica,
FBS, RBS, RBC, REC, McCarthy, SI-Bus, TTS and Transcomm, each individually
a
“Borrower” and collectively, “Borrowers”) and the parties hereto from time to
time as guarantors (each individually a “Guarantor” and collectively,
“Guarantors”, as defined in the Loan Agreement).
WITNESSETH:
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 Third
Amended and Restated Loan and Security Agreement, dated as of May 15, 2007,
as
amended by Amendment No. 1 to Third Amended and Restated Loan and Security
Agreement, dated as of January 1, 2008, and Amendment No. 2 to Third Amended
and
Restated Loan and Security Agreement, dated as of August 28, 2008, by and among
Agent, Borrowers, Guarantors and Lenders (as 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:
1.
Definitions.
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 ending August 31, 2007),
Parent and its Subsidiaries shall have EBITDA of not less than $26,000,000
for
the twelve (12) consecutive month period then ended; provided,
that,
(a) Parent and its Subsidiaries shall not be required to comply with this
Section for any calendar month if Excess Availability is equal to or greater
than: (i) $5,000,000 at all times during the period from July 1, 2008 to
September 15, 2008, (ii) $8,000,000 at all times during the period from
September 16, 2008 to September 30, 2008, (iii) $4,500,000 at all
times during the period from October 1, 2008 to July 31, 2009, (iv) $4,000,000
at all times during the period from August 1, 2009 to September 15, 2009, (v)
$4,500,000 at all times during the period from September 16, 2009 to November1,2009, (vi) $8,000,000 at all times during the period from November 2,2009 to June 30, 2010, (vii) $5,000,000 at all times during the period from
July 1 to September 15 of any year (commencing in 2010), and
(viii) $8,000,000 at all times during the period from September 16 of any
year (commending in 2010) through June 30 of the immediately following year;
(b) solely for purposes of this Section 9.17: (i) the calculation of
EBITDA shall not include the effects of any non cash accounting adjustments
for
FASB 133, and (ii) for the period from January 1, 2008 through and including
February 15, 2009, the calculation of the Borrowing Base for purposes of the
calculation of Excess Availability shall not include Reserves established to
reflect obligations, liabilities or indebtedness (contingent or otherwise)
of
Borrowers or Guarantors to Agent or any Bank Product Provider arising under
or
in connection with any Hedge Agreement in an amount of up to $5,000,000; and
(c)
to the extent Parent and its Subsidiaries have failed to maintain the minimum
EBITDA required by this Section 9.17 as of the end of any such calendar month,
to the extent that Parent receives a cash capital contribution from any of
its
Permitted Holders or AETG no later than the EBITDA Capital Contribution Deadline
that would if it had been received prior to the end of such month meant that
Parent was in compliance with this Section 9.17, then Parent and its
Subsidiaries shall be deemed to have complied with this Section 9.17 for
such month.”.
3.
Amendment
Fee.
In
addition to all other fees, charges, interest and expenses payable by Borrowers
and Guarantors to Agent and Lenders under the Loan Agreement and the other
Financing Agreements, Borrowers shall pay to Agent, for the benefit of
Lenders,
an
amendment fee in the amount of $15,000, which fee shall be fully earned as
of
and payable on the date hereof and may be charged to any loan account of
Borrowers maintained by Agent.
4.
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 has 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
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, nor the consummation
of any of the transactions contemplated herein (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) 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)
No
Default or Event of Default exists or has occurred and is continuing as of
the
date of this Amendment.
5.
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; and
(b)
No
Default or Event of Default shall have occurred and be continuing as of the
date
of this Amendment.
6.
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.
7.
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.
8.
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.
9.
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.
10.
Headings.
The
headings listed herein are for convenience only and do not constitute matters
to
be construed in interpreting this Amendment.
11.
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.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
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
ESCORTS INC.
ATLANTIC
EXPRESS COACHWAYS, INC.
ATLANTIC
EXPRESS NEW ENGLAND, INC.
ATLANTIC
EXPRESS OF CALIFORNIA, INC.
ATLANTIC
EXPRESS OF ILLINOIS, INC.
ATLANTIC
EXPRESS OF L.A., INC.
ATLANTIC
EXPRESS OF MISSOURI INC.
ATLANTIC
EXPRESS OF NEW JERSEY, INC.
ATLANTIC
EXPRESS OF PENNSYLVANIA, INC.
ATLANTIC
EXPRESS OF UPSTATE NEW YORK, INC.
ATLANTIC
TRANSIT CORP.
ATLANTIC-HUDSON,
INC.
ATLANTIC
PARATRANS, INC.
ATLANTIC
PARATRANS OF NYC, INC.
ATLANTIC
QUEENS BUS CORP.
BLOCK
7932, INC.
BROOKFIELD
TRANSIT INC.
COURTESY
BUS CO., INC.
FIORE
BUS
SERVICE, INC.
GROOM
TRANSPORTATION, INC.
G.V.D.
LEASING CO., INC.
JAMES
MCCARTHY LIMO SERVICE, INC.
JERSEY
BUSINESS LAND CO., INC.
K.
CORR,
INC.
MERIT
TRANSPORTATION CORP.
METRO
AFFILIATES, INC.
METROPOLITAN
ESCORT SERVICE, INC.
MIDWAY
LEASING INC.
180
JAMAICA CORP.
R.
FIORE
BUS SERVICE, INC.
RAYBERN
BUS SERVICE, INC.
RAYBERN
CAPITAL CORP.
RAYBERN
EQUITY CORP.
ROBERT
L.
MCCARTHY & SON, INC.
STATEN
ISLAND BUS, INC.
TEMPORARY
TRANSIT SERVICE, INC.
TRANSCOMM,
INC.
WINSALE,
INC.
By:
/s/
Domenic Gatto
Title:
CEO
AGENT
AND LENDERS
WACHOVIA
BANK, NATIONAL ASSOCIATION,
successor
by merger to Congress Financial Corporation,
as
Agent
and as Lender
By:
/s/
Herb Korn
Title:
Director
Dates Referenced Herein and Documents Incorporated by Reference
