EXHIBIT 10.2
January 25, 2000
Congress Financial Corporation
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Re: First Amendment to Accounts Purchase and Sale Agreement
Ladies and Gentlemen:
We refer to the ACCOUNTS PURCHASE AND SALE AGREEMENT, dated as of July 8,
1999 (the "Agreement"), among CONGRESS FINANCIAL CORPORATION, a Delaware
corporation ("Purchaser"), and AMBOY BUS CO., INC., a New York corporation,
ATLANTIC PARATRANS, INC., a New York corporation, ATLANTIC PARATRANS OF KENTUCKY
INC., a Kentucky corporation, ATLANTIC EXPRESS OF L.A. INC., a California
corporation, ATLANTIC EXPRESS OF MISSOURI INC., a Missouri corporation, ATLANTIC
EXPRESS OF PENNSYLVANIA, INC., a Delaware corporation, COURTESY BUS CO., INC., a
New York corporation, CENTRAL NEW YORK COACH SALES & SERVICE INC., a New York
corporation, JERSEY BUS SALES, INC., a New Jersey corporation, STATEN ISLAND
BUS, INC., a New York corporation, ATLANTIC PARATRANS OF COLORADO, INC., a
Colorado corporation, ATLANTIC PARATRANS OF PENNSYLVANIA, INC., a Pennsylvania
corporation and ATLANTIC EXPRESS OF NEW JERSEY, INC., a New Jersey corporation
(collectively, "Sellers"), and ATLANTIC EXPRESS TRANSPORTATION CORP., a New York
corporation.
We have requested that you extend the term of the existing Agreement and
make certain changes in the terms thereof. The purpose of this letter (the
"First Amendment") is to set forth our agreements in connection with such
amendment. We hereby agree as follows:
1. Defined Terms. Unless otherwise indicated, all capitalized terms used
herein but not defined herein shall have the respective meanings assigned
thereto in the Agreement, as amended hereby. The following terms used herein
shall have the following meanings:
"Loan Agreement" means the Loan and Security Agreement, dated
February 4, 1997, by and between Purchaser, certain subsidiaries of Parent
and Parent.
2. Amendments to Agreement. The Agreement is hereby amended as follows:
(a) Section 2.1 is amended by deleting "$12,750,000" on the seventh
line thereof and replacing it with "the Maximum Investment".
(b) Appendix A of the Agreement is amended by inserting the
following definitions in the appropriate alphabetical order:
"ABD" means Atlantic Bus Distributors, Inc., a New York
corporation.
"Inventory Agreement" means the Inventory Financing Agreement
(Security Agreement), dated August 11, 1999, between Purchaser, ABD
and Atlantic Express Transportation Group, Inc., as it now exists or
may hereafter be amended, modified, supplemented, extended, renewed,
restated or replaced.
"Inventory Loans" means the revolving loans made by Purchaser
to ABD pursuant to the Inventory Agreement.
"Maximum Investment" means, at any Purchase Date, an amount
equal to $20,000,000 minus the aggregate outstanding amount of all
Inventory Loans on such Purchase Date.
(c) The definition of "Termination Date" in Appendix A of the
Agreement is deleted in its entirety and replaced with the following:
"Termination Date" means the earliest of (a) October 1, 2001,
(b) the date on which the Termination Date shall occur pursuant to
Section 10.1 hereof, or (c) ninety (90) days prior to the first to
occur of the expiration or termination of (x) the Inventory
Agreement or (y) the Working Capital Facility.
3. Conditions Precedent. Each of the following is a condition precedent to
the amendments set forth in Section 2 hereof becoming effective and Lender shall
be satisfied that such conditions precedent have been satisfied before such
amendments become effective:
(a) Lender shall have received an original copy of (i) this First
Amendment, (ii) the Third Amendment to the Loan Agreement, dated as of the
date hereof, and (iii) the First Amendment to the Inventory Agreement,
each duly authorized, executed and delivered by us, and acknowledged,
agreed and consented to by the respective guarantors thereto;
(b) Lender shall have received an opinion of counsel, in form and
substance satisfactory to you, that the Agreement, as amended hereby, does
not violate the terms of the Indenture, and such other matters as you may
request.
(c) each of the representations and warranties made by us as set
forth in the Transaction Documents is true and correct in all respects as
of the date hereof; and
(d) immediately prior, and immediately after giving effect, to the
amendments set forth in Section 2 hereof there shall exist no Event of
Termination or event or condition which, with the giving of notice,
passage of time, or both, would constitute an Event of Termination.
4. Representations and Warranties. We hereby represent, warrant and agree,
for your benefit, on and as of the date hereof, both before and after giving
effect to the amendments set forth in Section 2 hereof, that:
2
(a) each of us is a corporation duly organized and in existence and
good standing under the laws of its respective state of incorporation, and
is duly qualified or registered as a foreign corporation and in good
standing in all other jurisdictions where the nature and extent of the
business transacted by us or its ownership of property makes such
qualification or registration necessary;
(b) the execution, delivery and performance of this First Amendment
and the other Transaction Documents and all transactions contemplated
thereby, both before and after giving effect to all amendments and
agreements contained herein, are within our power, have been duly
authorized by all necessary corporate or other action and are not in
contravention of the terms of any of our articles of incorporation,
by-laws or other organizational documentation or any law, regulation,
decree, order, judgment, indenture, agreement or undertaking to which we
are a party or by which we or any of our property are bound;
(c) this First Amendment and the other Transaction Documents, both
before and after giving effect to all amendments and agreements contained
herein, constitute our legal, valid and binding obligations, enforceable
against us in accordance with their respective terms;
(d) each of our representations and warranties set forth in the
Transaction Documents is true and correct in all respects, and we hereby
remake and reaffirm each such representation and warranty with the same
force and effect as if each such representation and warranty was being
made originally on and as of the date hereof;
(e) we have no defense, set-off or counterclaim to or with respect
to the full performance of any of our obligations under the Transaction
Documents; and
(f) there exists no Event of Default or event or condition which,
with the passage of time, giving of notice or both, would constitute an
Event of Termination.
5. Ratification. Except for the amendments expressly provided herein, the
Agreement and the other Transaction Documents are not amended, modified or
changed hereby and each such document shall remain in full force and effect in
accordance with its existing provisions. We hereby ratify and affirm, in all
respects, both before and after giving effect to the amendments and agreements
contained herein, all of the terms and provisions of the Transaction Documents
and all of our obligations thereunder.
6. Further Assurances. We will take or cause to be taken such actions, and
shall execute and deliver such additional documents as may be necessary or
desirable to effectuate the provisions of this First Amendment.
7. References to Agreements to include Amendments. All notices,
communications, agreements, certificates, documents or other instruments
executed and delivered after the execution and delivery of this First Amendment
may refer to the Agreement, without making specific reference to this First
Amendment, but nevertheless all such references shall include the amendments and
agreements contained in this First Amendment unless the context clearly requires
otherwise.
3
8. Counterparts. This First Amendment may be executed in several
counterparts and by each party on a separate counterpart, each of which, when so
executed and delivered, shall be an original, but all of which together shall
constitute but one and the same instrument.
9. Amendment, Etc. None of the terms of this First Amendment may be
modified, amended or waived in any manner other than by a writing executed by
the party against whom such modification, amendment or waiver is charged.
10. Entire Understanding. This First Amendment represents our and your
entire agreement and understanding concerning the subject matter hereof and
supersedes all other prior or contemporaneous agreements, understandings,
negotiations, discussions, representations, term sheets, commitments, offers and
contracts, whether oral or written.
11. Governing Law. This First Amendment shall be governed by and construed
in accordance with the laws of the State of New York, without regard to the
principles regarding conflict of laws that would require the application of
another state's laws.
[This Space Intentionally Left Blank]
4
Very truly yours,
SELLERS
-------
AMBOY BUS CO., INC.
By: /s/ XXXXXX XXXXXXXXX
------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Secretary
ATLANTIC PARATRANS, INC.
By: /s/ XXXXXX XXXXXXXXX
------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Secretary
ATLANTIC PARATRANS OF
KENTUCKY INC.
By: /s/ XXXXXX XXXXXXXXX
------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Secretary
ATLANTIC EXPRESS OF L.A. INC.
By: /s/ XXXXXX XXXXXXXXX
------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Secretary
ATLANTIC EXPRESS OF MISSOURI, INC.
By: /s/ XXXXXX XXXXXXXXX
------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Secretary
5
COURTESY BUS CO., INC.
By: /s/ XXXXXX XXXXXXXXX
------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Secretary
ATLANTIC EXPRESS OF
PENNSYLVANIA, INC.
By: /s/ XXXXXX XXXXXXXXX
------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Secretary
CENTRAL NEW YORK COACH
SALES & SERVICE, INC.
By: /s/ XXXXXX XXXXXXXXX
------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Secretary
JERSEY BUS SALES, INC.
By: /s/ XXXXXX XXXXXXXXX
------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Secretary
STATEN ISLAND BUS, INC.
By: /s/ XXXXXX XXXXXXXXX
------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Secretary
ATLANTIC PARATRANS OF
COLORADO, INC.
By: /s/ XXXXXX XXXXXXXXX
------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Secretary
6
ATLANTIC PARATRANS OF PENNSYLVANIA, INC.
By: /s/ XXXXXX XXXXXXXXX
------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Secretary
ATLANTIC EXPRESS OF NEW
JERSEY, INC.
By: /s/ XXXXXX XXXXXXXXX
------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Secretary
PARENT, SELLERS' REPRESENTATIVE,
AND INITIAL SERVICER
--------------------------------
ATLANTIC EXPRESS
TRANSPORTATION CORP.
By: /s/ XXXXXX XXXXXXXXX
------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Secretary
Agreed to and accepted:
CONGRESS FINANCIAL
CORPORATION
By: /s/ XXXX XXXX
---------------------------
Name: Xxxx Xxxx
Title: Assistant Vice President
7
The undersigned, in his capacity as guarantor under that certain Amended
and Restated Limited Guaranty, dated August 11, 1999 (the "Guaranty"), made in
favor of Congress Financial Corporation with respect to the obligations of the
Sellers (as defined in the foregoing Amendment), hereby (i) confirms that he has
reviewed the foregoing First Amendment and is familiar with its contents, and
(ii) represents, warrants and agrees that after giving effect to the First
Amendment and the transactions contemplated thereby, (a) the Guaranty continues
to be in full force and effect, is enforceable in accordance with its terms, and
is not subject to any defense, setoff or counterclaim, and (b) the Guaranteed
Obligations (as defined in the Guaranty) include, without limitation, all
indebtedness, liabilities, obligations, and agreements of any kind, now existing
or hereafter arising, which arise under, in connection with or as a result of
the First Amendment or any transaction thereunder.
/s/ XXXXXXX XXXXX
-----------------------------------
Xxxxxxx Xxxxx
8
