Exhibit 10.39
SEVENTH SUPPLEMENTAL INDENTURE
SEVENTH SUPPLEMENTAL INDENTURE, dated as of February 26, 2002, among
Atlantic Express Transportation Corp., a New York corporation (the "Company"),
the Guarantors named herein 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 "Notes"), 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
dated as of August 14, 1997, the Second Supplemental Indenture dated as of
December 12, 1997, the Third Supplemental Indenture dated as of October 28,
1998, the Fourth Supplemental Indenture dated as of April 28, 1999, the Fifth
Supplemental Indenture dated as of December 20, 2000, and the Sixth Supplemental
Indenture dated as of August 15, 2001, each among the Company, the Guarantors
named therein and the Trustee (as amended, the "Indenture"), and the Notes in
the principal amount of $120,000,000 are outstanding on the date hereof; and
WHEREAS, the Company has acquired Atlantic Paratrans of NYC, Inc., a New
York corporation;
WHEREAS, Section 10.12 of the Indenture provides, among other things, that
the Company shall cause each Restricted Subsidiary that is formed or acquired
after the date of the Indenture to become a Guarantor thereunder and execute and
deliver a supplemental indenture pursuant to which such Restricted Subsidiaries
shall unconditionally guarantee all of the Company's Obligations as set forth in
Section 10.7 of the Indenture; and
WHEREAS, Section 9.1 of the Indenture provides, among other things, that
the Company, the Guarantors and the Trustee may amend or supplement the
Indenture without the consent of any Holder to comply with Article 10.12 thereof
and execute a supplemental 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; and
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1 DEFINITIONS.
Capitalized terms not defined herein shall have the meanings given to such
terms in the Indenture.
SECTION 2 GUARANTEE BY RESTRICTED SUBSIDIARIES.
Atlantic Paratrans of NYC, Inc. (the "Additional Guarantor")
unconditionally guarantees all of the Company's Obligations as set forth in
Section 10.7 of the Indenture in the same manner and to the same extent as if it
had executed the Indenture as one of the parties thereto defined as the
"Guarantors" therein.
SECTION 3 MISCELLANEOUS.
Section 3.1 Governing Law.
THIS SEVENTH 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 ADDITIONAL 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 OR ANY
SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING OF ANY SUIT, ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND IRREVOCABLY ACCEPTS
FOR ITSELF AND IN RESPECT OR ITS PROPERTY, GENERALLY AND UNCONDITIONALLY,
JURISDICTION OF THE AFORESAID COURTS. THE ADDITIONAL GUARANTOR IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW,
TRIAL BY JURY AND ANY 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 ADDITIONAL 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 PURCHASER TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED
BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE
ADDITIONAL GUARANTOR IN ANY OTHER JURISDICTION.
Section 3.2 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.
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Section 3.3 Conflicts.
In the event of a conflict between the terms and conditions of the
Indenture and the terms and conditions of this Seventh Supplemental Indenture,
then the terms and conditions of this Seventh Supplemental Indenture shall
prevail.
Section 3.4 Counterpart Originals.
The parties may sign any number of copies of this Seventh Supplemental
Indenture. Each signed copy shall be an original, but all of them together
represent the same agreement.
Section 3.5 Headings, etc.
The Headings of the Sections of this Seventh 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.
[signatures on following page]
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SIGNATURES
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Supplemental Indenture as of the date first written above.
ATLANTIC EXPRESS
TRANSPORTATION CORP.
By: /s/ Xxxxxxx Xxxxx
----------------------------
Name: Xxxxxxx Xxxxx
Title: President
Attest:
/s/ Xxxx Xxxxxxxxx
------------------------------
Name: Xxxx Xxxxxxxxx
Title: Chief Financial Officer
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GUARANTORS
AIRPORT SERVICES, INC. COURTESY BUS CO., INC.
AMBOY BUS CO., INC. XXXXX BUS SERVICE, INC.
ATLANTIC-CHITTENANGO REAL GROOM TRANSPORTATION, INC.
PROPERTY CORP. G.V.D. LEASING CO., INC.
ATLANTIC-CONN TRANSIT, INC. XXXXX XXXXXXX LIMO SERVICE, INC.
ATLANTIC EXPRESS COACHWAYS, INC. JERSEY BUS SALES, INC.
ATLANTIC EXPRESS NEW ENGLAND, INC. JERSEY BUSINESS LAND CO., INC.
ATLANTIC EXPRESS OF CALIFORNIA, INC. X. XXXX, INC.
ATLANTIC EXPRESS OF ILLINOIS, INC. XXXXXXXX TRANSPORTATION, INC.
ATLANTIC EXPRESS OF L.A., INC. METRO AFFILIATES, INC.
ATLANTIC EXPRESS OF MISSOURI, INC. METROPOLITAN ESCORT SERVICE, INC.
ATLANTIC EXPRESS OF NEW JERSEY, INC. MERIT TRANSPORTATION CORP.
ATLANTIC EXPRESS OF MIDWAY LEASING INC.
PENNSYLVANIA, INC. MOUNTAIN TRANSIT, INC.
ATLANTIC EXPRESS OF SOUTH XXXXXXX BUS SERVICE, INC.
CAROLINA, INC. XXXXXXX CAPITAL CORP.
ATLANTIC-XXXXXX, INC. XXXXXXX EQUITY CORP.
ATLANTIC MEDFORD, INC. X. XXXXX BUS SERVICE, INC.
ATLANTIC PARATRANS, INC. XXXXXX X. XXXXXXXX & SON, INC.
ATLANTIC PARATRANS OF ARIZONA, INC. STATEN ISLAND BUS, INC.
ATLANTIC PARATRANS OF COLORADO, INC. TEMPORARY TRANSIT SERVICE, INC.
ATLANTIC PARATRANS OF KENTUCKY, INC. T-NT BUS SERVICE, INC.
ATLANTIC PARATRANS OF NYC, INC. TRANSCOMM, INC.
ATLANTIC PARATRANS OF WINSALE, INC.
PENNSYLVANIA, INC. WRIGHTHOLM BUS LINE, INC.
ATLANTIC TRANSIT, CORP. 180 JAMAICA CORP.
BLOCK 7932, INC. 201 WEST XXXXXXX REALTY, INC.
BROOKFIELD TRANSIT INC.
CENTRAL NEW YORK COACH SALES &
SERVICE, INC.
By: /s/ Xxxxxxx Xxxxx
----------------------------
Name: Xxxxxxx Xxxxx
Title: President
THE BANK OF NEW YORK, as Trustee
By: /s/ Xxxxx Xxxxxxxxx-Xxxxxx
----------------------------
Name: Xxxxx Xxxxxxxxx-Xxxxxx
Title: Vice President
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