EXECUTION COPY
EXHIBIT 10.5
AGREEMENT
THIS AGREEMENT ("Agreement") is made as of June 18, 2003, by and
between Xxxxxxx Inc., the Encumbered Subsidiaries and Greyhound Lines, Inc., on
the one hand, and the Pension Benefit Guaranty Corporation, on the other hand.
RECITALS
Each member of the Xxxxxxx Group is jointly and severally liable for
the Pension Plans; and
Xxxxxxx Inc. and certain other members of the Xxxxxxx Group are debtors
in the Bankruptcy Proceedings; and
The Debtors intend to reorganize under Chapter 11 of the Bankruptcy
Code and to continue the Pension Plans; and
As a consequence of the Xxxxxxx Bankruptcy Reorganization, certain of
the Debtors' unsecured debt that would be subordinate to the obligations of the
Debtors to the PBGC if the Pension Plans were terminated by the PBGC prior to
the consummation of the Reorganization Plan will be replaced by secured debt
that likely would be senior to the obligations of the Debtors to the PBGC if the
Pension Plans were terminated by the PBGC after the consummation of the
Reorganization Plan; and
Each of the Pension Plans is covered by the pension plan termination
insurance program set forth in Title IV of the Employee Retirement Income
Security Act of 1974 ("ERISA"), ERISA sections 4001-4402; and
PBGC has expressed certain concerns about the Xxxxxxx Bankruptcy
Reorganization; and
To address the PBGC's concerns, the Xxxxxxx Group and PBGC ("Term Sheet
Signatories") entered into a preliminary written agreement dated January 22,
2003 ("Term Sheet"); and
The Parties desire to enter into this Agreement, which shall constitute
the definitive documentation contemplated under the Term Sheet; and
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THEREFORE, as provided for by the Term Sheet and for good and valuable
consideration, the receipt and sufficiency of which are acknowledged, the
Parties agree as follows:
I. DEFINITIONS
As used in this Agreement, the following terms shall have the meaning
set forth below:
"ATU Plan" means the Greyhound, Inc. Amalgamated Transit Union Local
1700 Council Retirement & Disability Plan.
"Agreement" shall mean this agreement and all of its exhibits, addenda
and other attachments, by and among PBGC and the members of the Xxxxxxx Group.
"Bankruptcy Code" means the Bankruptcy Code of 1978, as amended, 11
U.S.C.Sections 101, et. seq., and any successor statute of similar import,
together with the regulations thereunder, in each case as in effect from time to
time. References to sections of the Bankruptcy Code shall be construed to refer
also to any successor sections of similar import.
"Bankruptcy Proceedings" means the jointly administered bankruptcy
proceedings styled In re Xxxxxxx USA, Inc., et al., Case Nos. 01-14099 K through
01-14104 K, pending in the United States Bankruptcy Court for the Western
District of New York.
"CFC" means an entity that is a controlled foreign corporation under
section 957 of the Internal Revenue Code.
"Contributing Sponsor" shall have the meaning set forth in ERISA
section 4001(a)(13).
"Controlled Group" shall have the meaning ascribed thereto under ERISA
section 4001(a)(14).
"Debtors" means Xxxxxxx Inc., Xxxxxxx USA, Inc., Xxxxxxx Investments
Ltd., Xxxxxxx International Finance Corporation, Xxxxxxx Transportation, Inc.,
and Xxxxxxx One, Inc.
"Effective Date" shall mean the effective date of Xxxxxxx'x
Reorganization Plan.
"Encumbered Subsidiaries" means all of Xxxxxxx'x affiliates that are
signatories to the Exit Financing Facility; provided, however, that in no
circumstance will the term Encumbered Subsidiaries
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include a CFC or insurance company. A list of the Encumbered Subsidiaries is
attached to this Agreement as Exhibit B.
"Enhanced Contributions" shall mean the cash contributions that each
member of the Xxxxxxx Group is jointly and severally obligated to pay to the
Pension Plans pursuant to sections II.A.1.(a), II.A.1.(b), and II.A.1.(c) of
this Agreement.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended, ERISA section 2 et seq., and any successor statute of similar
import, together with the regulations thereunder, in each case as in effect from
time to time. References to sections of ERISA shall be construed to refer to any
successor sections.
"Event of Default" means the event described in section VII of this
Agreement.
"Exit Financing Facility" means the credit facility consisting of: (a)
a senior secured revolving credit facility in the amount of not less than
$200,000,000.00, including a $50,000,000.00 letter of credit sub-facility; and
(b) a senior secured seven year term loan facility in the principal amount of up
to $625,000,000.00 (plus, at the request of the Debtors and at the discretion of
the lenders, an additional term loan of up to $100,000,000.00), including a
cash-collateralized $100,000,000.00 letter of credit facility that will be
entered into by the Debtors, the Exit Financing Facility Agent Bank and the
other lenders party thereto on the Effective Date, on substantially the same
terms and conditions described on Exhibit VI to the Reorganization Plan, as such
credit facility may be amended, waived, amended and restated, refinanced,
replaced, or otherwise modified from time to time, provided, however, that no
such amendment, waiver, restatement, refinancing, replacement or other
modification shall increase the size of the Exit Financing Facility to an amount
greater than the size of the Exit Financing Facility existing on the Effective
Date (including the additional discretionary term loan amount described in
clause (b) of this sentence).
"Funding Interest Rate" means the interest rate used by the Plans'
enrolled actuaries for purposes of Internal Revenue Code section 412(b)(5)(A).
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"Funding Standard Account" means the funding standard account
maintained for the Plans pursuant to the Internal Revenue Code section 412.
"Initial Credit Balance" shall mean, with respect to each Pension Plan,
the credit balance in the Plan's funding standard account for the Plan Year
ending December 31, 2002, as determined by the Plan's enrolled actuary. The
Initial Credit Balance must reflect the Plan's share of the $50,000,000 Enhanced
Contribution discussed in section II.A.1.(a) below.
"Intercreditor Agreements" shall have the meaning set forth in section
II.E. of this Agreement.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended, 26 U.S.C.Section 1, et. seq., and any successor statute of similar
import, together with regulations thereunder, in each case as in effect from
time to time. References to sections of the Internal Revenue Code shall be
construed to refer also to any successor or substantially related sections of
similar import.
"Xxxxxxx" shall mean Xxxxxxx Inc. prior to the Effective Date and New
LINC (as defined in the Reorganization Plan) after the Effective Date; provided,
however, that in no circumstance will the term Xxxxxxx include a CFC, an
insurance company, a direct or indirect subsidiary of Greyhound Lines, Inc. or
Interstate Leasing, Inc., Xxxxxx Coaches, Inc. or any of their respective direct
or indirect subsidiaries.
"Xxxxxxx Bankruptcy Reorganization" means the confirmation of the
Reorganization Plan as provided in section 1141 of the Bankruptcy Code.
"Xxxxxxx Group" shall mean each member of the Controlled Group of which
Xxxxxxx is a member as of the date the Bankruptcy Case was filed. The Xxxxxxx
Group includes, but is not limited to, Xxxxxxx, Greyhound Lines, Inc. and each
of the Encumbered Subsidiaries; provided, however, that in no circumstance will
the term Xxxxxxx Group include a CFC, an insurance company, a direct or indirect
subsidiary of Greyhound Lines, Inc. or Interstate Leasing, Inc., Xxxxxx Coaches,
Inc. or any of their respective direct or indirect subsidiaries.
"Maximum Tax Deductible Contribution Amount" shall mean, with respect
to a Plan Year, the maximum amount of contributions to the Plan for such Plan
Year that would be tax deductible pursuant to Internal Revenue Code section 404,
determined as if the applicable interest rate is the lowest interest rate
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in the "permissible range" prescribed by Internal Revenue Code section
412(b)(5)(B)(ii), as modified by Internal Revenue Code section 412(l)(7)(C), or
any successor provisions thereto to determine "current liability" as defined
under Internal Revenue Code section 412.
"Minimum Funding Contribution" means, as to any of the Plans, the
minimum funding requirements under Internal Revenue Code section 412.
"PBGC" means the Pension Benefit Guaranty Corporation, the United
States government agency that administers and enforces the mandatory termination
insurance program for defined benefit pension plans under Title IV of ERISA, 29
U.S.C. Sections 1301-1461.
"PBGC Documents" shall mean collectively this Agreement, the
Intercreditor Agreements, the Junior Security Agreement in favor of the PBGC
made by Xxxxxxx Investments LTD., an Ontario corporation as predecessor to
Xxxxxxx International, Inc., a Delaware corporation dated as of June 18, 2003,
and the Stock Trust.
"PBGC Lien" shall have the meaning set forth in section II.E. of this
Agreement.
"Pension Plans" or "Plans" means the following defined benefit pension
plans: (1) Greyhound Lines, Inc. Salaried Employees Defined Benefit Plan; (2)
ATU Plan; (3) Texas New Mexico and Oklahoma Coaches, Inc. Employees Retirement
Plan; (4) Vermont Transit Co. Inc. Employees Defined Benefit Pension Plan; (5)
Carolina Coach Company Pension Plan; (6) Carolina Coach Co. International
Association of Machinist Pension Plan; and (7) Carolina Coach Company
Amalgamated Transit Union Pension Plan; plus any successor plan to any thereof
under ERISA section 4021 or any plan or plans that result from any merger or
spinoff of or from any thereof.
"Plan Release Events" means the events described in section IV.B. of
this Agreement.
"Plan Year" shall mean, with respect to each Plan, the "plan year" as
defined in ERISA section 3(39), provided that for purposes hereof, any "Plan
Year" shall equal twelve months.
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"Reorganization Plan" shall mean the Third Amended Joint Plan of
Reorganization of Xxxxxxx USA Inc. and Its Debtor Affiliates (and all exhibits,
addenda and other attachments thereto), filed with the Bankruptcy Court on
January 23, 2003, as may be further amended.
"Required Credit Balance" means, with respect to each Plan, the amount
in each Plan's Funding Standard Account determined in accordance with section
II.C. of this Agreement.
"Standard Termination" shall have the meaning ascribed thereto under
ERISA section 4041(b). "Stock Trust" or "Trust" means the trust established
pursuant to documents in substantially the form attached as Exhibit A of this
Agreement for purposes of funding all or part of the Enhanced Contributions
required pursuant to section II.A.1.(c) of the Agreement.
"Term" means the period commencing on the latest date on which this
Agreement has been signed by all the Parties and ending on the date this
Agreement terminates pursuant to section IV of this Agreement.
"Termination Events" means the events described in section IV.A. of
this Agreement.
"Trustee" means the trustee of the Stock Trust designated in accordance
with section II.B.1. of this Agreement.
"Unfunded Benefit Liabilities" shall mean the amount of a Pension
Plan's unfunded benefit liabilities (as defined in ERISA section 4001(a)(18)).
II. XXXXXXX OBLIGATIONS
A. Payment, Allocation and Effect of Enhanced Contributions.
1. Payment of Enhanced Contributions. Effective upon the
consummation of its Reorganization Plan under Title 11 of the United States
Code, Xxxxxxx and the Xxxxxxx Group shall be jointly and severally obligated to
make Enhanced Contributions, as described in sections II.A.1.(a), II.A.1.(b),
and II.A.1.(c) below, to the Pension Plans, plus additional contributions
necessary to maintain the Initial Credit Balance and Required Credit Balance in
each of the Plans' funding standard accounts.
(a) The Xxxxxxx Group shall pay in cash to the Plans upon
the Effective Date Enhanced Contributions in the
aggregate amount of $50,000,000, allocated to the
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2002 Plan Years for funding standard account
purposes. These payments will be in addition to any
minimum funding contributions owed to the Plans for
the 2002 Plan Years;
(b) Not later than June 30, 2004, the Xxxxxxx Group shall
pay in cash to the Plans Enhanced Contributions in
the aggregate amount of $50,000,000, allocated to the
2003 Plan Years for funding standard account
purposes. These payments will be in addition to any
minimum funding contributions owed to the Plans for
the 2003 Plan Years.
(c) Not later than December 31, 2004, the Xxxxxxx Group
shall pay in cash to the Plans Enhanced Contributions
in the aggregate amount of no less than $50,000,000,
allocated to the Plan Years in which the payments are
actually made (or to the prior Plan Years, if made
within eight and one-half (8 1/2) months of the end
of any such prior Plan Year) for funding standard
account purposes. These payments will be in addition
to any minimum funding contributions owed to the
Plans for the corresponding Plan Years.
2. Allocation of Enhanced Contributions Among Pension Plans. The
Enhanced Contributions will be allocated among the Pension Plans in proportion
to the Plans' Unfunded Current Liabilities as determined by the Plans' actuaries
in accordance with Internal Revenue Code section 404(a)(1)(D)(i). To the extent
that the proceeds from any sale of the common stock of Xxxxxxx by the Stock
Trust are allocated among the Pension Plans in proportions different than the
proportions described in this Section II.A.2., the Xxxxxxx Group shall be
obligated to make, on or before December 31, 2004, additional Enhanced
Contributions (which shall be treated as contributions made pursuant to Section
II.A.1.(c)) to any Pension Plan that received, in respect of such proceeds, less
than the amount of such proceeds that would have been allocated to such Pension
Plan had such proceeds been allocated in the proportions described in this
Section II.A.2. (the amount of such shortfall being referred to herein as a
"Stock Sale Proceeds Shortfall") in an amount equal to the sum of (i) the Stock
Sale Proceeds Shortfall plus (ii) interest on the Stock Sale Proceeds Shortfall
calculated at the Plan's Funding Interest Rate for the period from the date of
the allocation of Xxxxxxx common stock sale proceeds that resulted in the Stock
Sale Proceeds Shortfall to the date of the contribution described in this
sentence.
3. Effect of Enhanced Contributions on Required Funding. The
Enhanced Contributions can be used to calculate minimum funding pursuant to the
Retirement Protection Act of 1994 (including the special provisions of the
Retirement Protection Act of 1994 that apply only to the ATU Plan), but
otherwise may not be used to offset the quarterly contributions under Internal
Revenue Code section 412(m) and ERISA section 302(e); provided however, that any
contributions pursuant to section II.A.1.(c) above in excess of $50,000,000 may
be used to offset such quarterly contributions.
B. Stock Trust
1. The Xxxxxxx Group shall take all actions necessary to
establish the Stock Trust. Pursuant to an exemption from the registration
requirements of the Securities Act of 1933, the Xxxxxxx Group shall issue to the
Stock Trust common stock of Xxxxxxx with an aggregate value of no less than
$50,000,000, as determined by the value of Xxxxxxx'x common stock upon emergence
from bankruptcy set forth in Xxxxxxx'x Disclosure Statement Pursuant to Section
1125 of the Bankruptcy Code dated January 23, 2003. The Trust shall own the
common stock. The Trustee of the Stock Trust will be independent of the Xxxxxxx
Group and the Plans, and the Xxxxxxx Group shall pay all of the Stock Trust's
fees and expenses, including those of its Trustee. PBGC for the benefit of the
Pension Plans shall have
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the exclusive and first priority lien on all of the assets in the Stock Trust,
including the common stock and any proceeds from the sale(s) of the common stock
prior to the transfer of such proceeds to the Plans.
2. Xxxxxxx shall make the stock held in the Stock Trust freely
transferable by the Trustee as soon as reasonably practicable. The common stock
in the Stock Trust may be sold in one or more transactions for no less than the
current fair market value at the time of the sale. Subject to compliance with
applicable federal and state securities laws, the Trustee will have the duty to
sell the stock held in the Stock Trust as soon as practicable and in a manner
designed to maximize sale proceeds, but no later than December 31, 2004.
Immediately upon such sale(s) the Trustee shall contribute all of the proceeds
to the Plans pursuant to the Trust Agreement. To the extent such proceeds are
allocated among the Pension Plans in the proportions described in section
II.A.2., such proceeds shall be treated as a cash payment to the Pension Plans
under section II.A.1.(c). Xxxxxxx'x consent will be required for any
Trustee-initiated sales of stock, and, subject to compliance with applicable
federal and state securities laws, Xxxxxxx will have the right to direct the
Trustee to sell the stock.
C. Maintenance of the Initial Credit Balance and the Required
Credit Balance. The Xxxxxxx Group shall maintain the Initial Credit Balance and
the Required Credit Balance for each Pension Plan throughout the term of this
Agreement as follows:
1. The Initial Credit Balance with respect to each
Pension Plan shall be the sum of (a), (b) and (c)
below, where
(a) is the credit balance in the Plan's
Funding Standard Account for the Plan Year ending
December 31, 2002, as determined by the Plan's
enrolled actuary; and
(b) is the Plan's share of the $50,000,000
Enhanced Contribution discussed in section II.A.1.(a)
of this Agreement; and
(c) is the amount, if any, of such Plan's
share of the Enhanced Contributions made to the Plan
attributable to 2002 from the Xxxxxxx Group's
performance of its obligations described in section
II.A.1.(c) of this Agreement,
plus the amount of interest calculated at the Plan's
Funding Interest Rate.
2. The Xxxxxxx Group shall make such additional
contributions to the Pension Plans that are necessary
to insure that each Pension Plan's Required Credit
Balance is preserved as of the end of each Plan Year.
(a) For each Pension Plan's Plan Year ending
December 31, 2003, the "Required Credit
Balance" shall be equal to the sum of (i),
(ii) and (iii) below, where
(i) is such Plan's Initial Credit Balance,
plus the amount of interest calculated at the Plan's
Funding Interest Rate; and
(ii) is the amount, if any, of such Plan's
share of the Enhanced Contributions made to the Plan
during or attributable to the 2003 Plan Year from the
Xxxxxxx Group's performance of its obligations
described in section II.A.1.(c) of this Agreement,
plus the amount of interest calculated at the Plan's
Funding Interest Rate. If Enhanced Contributions
under section II.A.1.(c) of this
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Agreement made during or attributable to the 2002 and
2003 Plan Years are greater than $50,000,000, the
excess over $50,000,000 is not reflected in the 2003
Required Credit Balance.
(iii) is such Plan's share of the
$50,000,000 Enhanced Contribution, discussed in
section II.A.1.(b) of this Agreement, plus the amount
of interest calculated at the Plan's Funding Interest
Rate; and
(b) For each Plan's Plan year ending December
31, 2004, the Required Credit Balance shall
be equal to the sum of (i) and (ii) below,
where
(i) is such Plan's Required Credit Balance
for the 2003 Plan year, plus the amount of interest
calculated at the Plan's Funding Interest Rate; and
(ii) is the amount, if any, of such Plan's
share of the Enhanced Contributions made to the Plan
during or attributable to the 2004 Plan Year from the
Xxxxxxx Group's performance of its obligations
described in section II.A.1.(c) of this Agreement,
plus the amount of interest calculated at the Plan's
Funding Interest Rate. If Enhanced Contributions made
during or attributable to the 2002, 2003 and 2004
Plan Years under section II.A.1.(c) of this Agreement
are greater than $50,000,000 in total, the excess
over $50,000,000 is not reflected in the 2004
Required Credit Balance.
(c) For each Plan Year ending December 31, 2005,
and thereafter for so long as the Agreement
is in effect, each Pension Plan's Required
Credit Balance shall equal the Plan's
Required Credit Balance for the previous
year plus the amount of interest calculated
at the Plan's Funding Interest Rate.
3. Except as provided otherwise in Section II.C., any
contributions necessary to meet the Required Credit
Balance for a Plan Year shall be made no later than
January 15th following the end of the Plan Year
(provided, however, that nothing in this Agreement
shall require or otherwise accelerate the timing of
the payment of the regular minimum funding
contribution which is due no later than September
15th of the following Plan Year).
4. Each Plan's Required Credit Balance shall reflect the
full Enhanced Contributions required by this Section
II., regardless as to whether they are actually paid
to the Plan.
D. Contributions in Excess of the Maximum Tax Deductible
Contribution Amount.
1. Notwithstanding anything in this Agreement, contributions to a
Plan for any given Plan year will not be required to exceed
that Plan's Maximum Tax Deductible Contribution Amount. If any
portion of an Enhanced Contribution is not deductible for a
Plan, then that portion shall be contributed to another Plan
for which it is deductible. If any portion of an Enhanced
Contribution is not deductible for any Plan for a Plan Year,
then that portion shall not be required to be contributed for
the Plan Year for which it is not deductible, and instead such
portion shall be carried over and paid in the next taxable
year in which it is
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deductible. Any such carryover payment will be in addition to
any other Enhanced Contributions required for such next year.
2. Each Plan's Required Credit Balance shall reflect the full
Enhanced Contributions required by this Section II.,
regardless as to whether the actual contributions have been
limited pursuant to the Maximum Tax Deductible Contribution
Amount.
X. Xxxxx of Security Interest. To secure their contribution
obligations under sections II.A.1.(a), II.A.1.(b), and II.A.1.(c), Xxxxxxx, and
the Encumbered Subsidiaries shall grant to PBGC on behalf of the Pension Plans a
second priority lien ("PBGC Lien") on all their property and interests, real and
personal, tangible and intangible, whether now owned or hereafter acquired, that
secure the Exit Financing Facility, including, without limitation, all such
owned real estate, leaseholds, general intangibles, inventory, furniture,
fixtures, equipment, intellectual property, contracts, books and records,
accounts, shares of stock in subsidiaries and cash, subject only to the liens
granted to secure the Exit Financing Facility and other exceptions to be agreed
upon; provided, however, that in no event shall the PBGC Lien extend to the
property or interests of any CFC or insurance company, and, with respect to
equity interests in a CFC, the PBGC Lien shall extend only with respect to 66%
of the equity interests in such CFC (consistent with, but subordinate to, the
lien on such equity interests granted to secure the Exit Financing Facility).
Any subordination of the PBGC Lien to the liens granted to secure the Exit
Financing Facility, and any conditions or restrictions on the PBGC's remedies
with respect to such liens, shall be subject to Intercreditor Agreements in form
and substance satisfactory to the lenders under the Exit Financing Facility (the
"Intercreditor Agreements").
III. PBGC'S OBLIGATIONS
In consideration of the Xxxxxxx Group's performance of its obligations
under this Agreement, PBGC will (A) forbear from instituting proceedings to
involuntarily terminate the Pension Plans pursuant to Title IV of the Employee
Retirement Income Security Act of 1974 ("ERISA") in advance of the consummation
of Xxxxxxx'x Reorganization Plan, (B) forbear from objecting to Xxxxxxx'x
Reorganization Plan, and (C) withdraw all of the claims filed by the PBGC with
respect to the Plans in Xxxxxxx'x Chapter 11 case upon consummation of its
Reorganization Plan.
IV. TERMINATION EVENTS AND PLAN RELEASE EVENTS
A. Termination Events. The events described in the following
subsections IV.A.1. and IV.A.2. shall be the Termination Events.
1. The date after March 1, 2008, on which Xxxxxxx
obtains the credit ratings (which may be private ratings in the event a
public rating is not available) specified below, or better, on either
actual unsecured debt or hypothetical unsecured debt in the amount of
at least $25 million:
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Rating Agency Rating
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Standard & Poor's BBB
Moody's Baa2.
2. The date after which a Plan Release Event has
occurred for each Pension Plan.
B. Plan Release Events. The events described in the following
subsections IV.B.1. and IV.B.2. shall be the Plan Release Events.
1. The date after December 31, 2007, on which the
Xxxxxxx Group demonstrates that the Plan has no Unfunded Benefit
Liabilities as of the last day of the Plan Year for any two full
consecutive Plan years after December 31, 2005.
2. The date on which PBGC receives a Form 501 - Post
Distribution Certification for the Plan indicating that the Plan has
been terminated in a Standard Termination.
X. Xxxxxxx shall notify the PBGC in writing upon the occurrence
of a Termination Event or a Plan Release Event. Within fifteen (15) days of
PBGC's receipt of such notification, PBGC shall, if a Termination Event or Plan
Release Event has occurred, respond in writing concurring that a Termination
Event or a Plan Release Event has occurred. If PBGC fails to so respond within
such time period, PBGC shall be deemed to have concurred.
D. Release of Plan from the Agreement. Xxxxxxx'x obligations
under the Agreement with regard to a particular Pension Plan shall terminate on
the date on which the PBGC concurs or is deemed to concur that a Plan Release
Event described in section IV.B. has occurred for such Plan; provided, however,
that the occurrence of a Plan Release Event for any Plan shall have no effect on
the Xxxxxxx Group's obligations under the Agreement for other Pension Plans.
E. Termination of Agreement. This Agreement shall terminate on
the date on which the PBGC concurs, or is deemed to concur that either
Termination Event described in section IV.A. has occurred.
F. Effect of Termination. All obligations of the Xxxxxxx Group
and PBGC under this Agreement shall terminate immediately upon termination of
this Agreement.
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V. REPORTING OBLIGATIONS
Xxxxxxx will provide the following information to PBGC, in addition to
any reporting obligations that the Xxxxxxx Group may have under ERISA or the
Internal Revenue Code:
A. Copies to PBGC's Corporate Finance and Negotiations Department
of any notices otherwise required to be filed with the
Internal Revenue Service or PBGC concerning the Plans at the
time the filing is made;
B. Written notice 30 days prior to any Plan merger or any
transfer of liabilities or assets described in the Internal
Revenue Code, under Internal Revenue Code section 414(l), to
or from any Plan (other than de minimis mergers or transfers).
C. Written notice 30 days prior to any change in any of the
Plans' actuarial assumptions or methods for the purpose of the
minimum funding standard account (other than changes required
by law), which changes shall be subject to PBGC's consent,
which consent shall not be unreasonably withheld.
D. Written notice 30 days prior to any change in any of the
Plans' Plan Years. Such changes shall be subject to PBGC's
consent, which consent shall not be unreasonably withheld.
E. Each Plan's Actuarial Valuation Report no later than the last
day of the Plan Year.
F. Each Plan's Form 5500 when filed.
G. By the last day of each Plan Year, a statement certified by
one or more of the Plans' enrolled actuaries, specifying the
following:
1. The allocation among the Plans of any Enhanced
Contributions required for the Plan Year, showing the
calculation of each Plan's unfunded current liability
in accordance with Internal Revenue Code section
404(a)(1)(D)(i);
2. The amount of contributions necessary to maintain
each Plan's Required Credit Balance and details of
the calculation of each Plan's Required Credit
Balance; and
3. A statement that the contribution necessary to
maintain each Plan's Required Credit Balance is not
limited by the Maximum Tax Deductible Contribution
Amount for the Plan Year, or, if the contribution is
so limited, the statement shall contain details
showing the calculation of the limitation and the
reallocation to other Plans or to later Plan Years.
H. By the last day of each Plan Year, a certification from
Xxxxxxx that contributions at least equal to the lesser of
V.H.1. or V.H.2. below have been made to each Plan.
1. The amount necessary to maintain each Plan's Required
Credit Balance.
2. The maximum tax deductible amount that may be
contributed to each Plan for the Plan Year.
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I. A copy of Plan amendments within 10 days of adoption.
J. Written notice within 5 days of any missed quarterly
contribution, Minimum Funding Contribution, Enhanced
Contribution, or any other contribution required to be made to
a Plan pursuant to this Agreement.
K. A written statement indicating the number of shares
contributed to the Stock Trust pursuant to section II.B. above
and the price per share as set forth in the Disclosure
Statement filed with respect to the Reorganization Plan.
L. Written confirmation as of the end of 2003 and again as of the
end of 2004, accounting for all sales of stock, including the
number of shares sold and net proceeds, and amounts
contributed to the Plans pursuant to sections II.A.1.(c) and
II.B. above.
M. Written confirmation that the $50,000,000 Enhanced
Contribution pursuant to section II.A.1.(a) above was in fact
contributed.
N. Written confirmation that the $50,000,000 Enhanced
Contribution pursuant to section II.A.1.(b) above was in fact
contributed.
O. For so long as Xxxxxxx is not a company subject to the
periodic reporting requirements under the federal securities
laws, copies of all information provided to Xxxxxxx'x
shareholders.
VI. COORDINATING ACTUARY
Xxxxxxx may appoint a single enrolled actuary to coordinate the actions
required of the Plans' enrolled actuaries in order for the Xxxxxxx Group to
discharge its obligations under this Agreement. The coordinating actuary may
establish such reasonable procedures as it deems appropriate to obtain
information from the enrolled actuaries for the Plans, and shall be entitled to
rely on the information it obtains from the Plans' enrolled actuaries. The
coordinating actuary may prepare and submit the statement described in section
V.G. The coordinating actuary may establish procedures for basing the
contribution and allocation of Enhanced Contributions to and among the Plans on
the Plans' enrolled actuaries' estimates of the unfunded current liabilities of
the Plans on the first day of the Plan Year using data available at the time of
the contribution or allocation.
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VII. DEFAULT
An Event of Default shall occur under this Agreement if the Xxxxxxx
Group breaches or is in default of any of its obligations under this Agreement,
including but not limited to the Xxxxxxx Group's obligations to make Enhanced
Contributions and to maintain the Initial Credit Balance and the Required Credit
Balance.
VIII. REMEDIES
Upon the occurrence of an Event of Default:
A. All Enhanced Contributions not already made by the Xxxxxxx
Group to the Pension Plans shall be immediately due and payable to PBGC for the
benefit of the Plans.
B. In addition to PBGC's rights under the Agreement and authority
under Title IV of ERISA, PBGC may, in its sole discretion, demand payment and
commence enforcement proceedings that are not inconsistent with the applicable
terms of the Intercreditor Agreement.
C. PBGC will provide the Xxxxxxx Group with a reasonable
opportunity to cure any default.
IX. REPRESENTATIONS AND WARRANTIES
A. PBGC represents and warrants to Xxxxxxx and the Xxxxxxx Group,
as of the date of this Agreement, as follows:
(1) Authorizations. PBGC possesses full corporate power
and authority to execute, deliver and perform this
Agreement. The officers of PBGC executing this
Agreement have been duly authorized to execute and
deliver this Agreement.
(2) Binding Effect. This Agreement has been duly executed
and delivered by PBGC and constitutes a legal, valid
and binding obligation of PBGC and is enforceable
against it in accordance with its terms.
(3) Reliance. PBGC recognizes and acknowledges that
Xxxxxxx and the Xxxxxxx Group have relied on the
representations and warranties contained in this
section IX.A in entering into this Agreement and that
these representations and warranties shall survive
the execution and delivery of this Agreement.
X. Xxxxxxx and each member of the Xxxxxxx Group represent and
warrant to PBGC, as of the date of this Agreement as follows:
(1) Authorization. Xxxxxxx is a corporation duly
organized, existing and in good standing under the
laws of Canada. Xxxxxxx and each member of the
Xxxxxxx
-14-
Group possesses full corporate power and authority to
execute, deliver and perform this Agreement. Any
person or entity executing this Agreement on behalf
of Xxxxxxx and each member of the Xxxxxxx Group has
been duly authorized to do so.
(2) Binding Effect. This Agreement has been duly executed
and delivered by Xxxxxxx and each member of the
Xxxxxxx Group and constitutes a legal, valid and
binding obligation of Xxxxxxx and each member of the
Xxxxxxx Group and is enforceable against Xxxxxxx and
each member of the Xxxxxxx Group in accordance with
its terms, subject to the effects of applicable
bankruptcy, insolvency, fraudulent conveyance,
moratorium and other similar laws relating to or
affecting creditors' rights generally, general
equitable principles (whether considered in a
proceeding in equity or at law) and an implied
covenant of good faith and fair dealing.
(3) No Conflict. The execution, delivery and performance
of this Agreement by Xxxxxxx and each member of the
Xxxxxxx Group is not in contravention of, and does
not constitute a default under, the terms of any of
Xxxxxxx'x or any member of the Xxxxxxx Group's
respective articles of incorporation, by-laws or
other organizational documentation, or any law,
regulation, decree, order, judgment, indenture,
agreement or undertaking to which Xxxxxxx or any
member of the Xxxxxxx Group is a party or by which
Xxxxxxx or any member of the Xxxxxxx Group or any of
its properties are bound or result in the creation of
imposition of any lien on any of the respective
properties of Xxxxxxx or any member of the Xxxxxxx
Group.
(4) No Consents Required. No consent, approval,
authorization, filing, registration or other similar
formality of or with any governmental authority,
agency or instrumentality, or any other person or
entity is required in connection with the execution,
delivery or performance by Xxxxxxx or any member of
the Xxxxxxx Group of this Agreement, except for
approval of this Agreement by the Bankrtupcy Court
and except as may be required under (a) state
securities or "blue sky" laws or (b) the Securities
Act of 1933, the Securities Exchange Act of 1934 or
the Trust Indenture Act of 1939.
(5) Reliance. Xxxxxxx and each member of the Xxxxxxx
Group recognizes and acknowledges that the PBGC has
relied on the representations and warranties
contained in this section IX.B. in entering into this
Agreement and that these representations and
warranties shall survive the execution and delivery
of this Agreement.
X. GENERAL PROVISIONS
A. Governing Law. This Agreement and the rights and obligations
of the parties hereunder shall be governed by and construed in accordance with
the laws of the State of Delaware and by ERISA, the Internal Revenue Code, and
other laws of the United States to the extent they preempt the laws of the State
of Delaware.
-15-
B. Entire Agreement. This Agreement and any instruments or
documents delivered or to be delivered in connection herewith represent the
entire agreement and understanding concerning the subject matter between the
parties hereto, and supersedes the Term Sheet and all other prior agreements,
understandings, negotiations, discussions, proposals and offers concerning the
subject matter hereof, whether oral or written.
C. Severability. If any provision of this Agreement shall be
rendered invalid, inoperative, or unenforceable as applied in any particular
case, such action shall not have the effect of rendering the provision in
question inoperative or unenforceable in any other case or circumstance. If any
provision of this Agreement shall be rendered invalid, inoperative, or
unenforceable in all cases, such action shall not have the effect of rendering
any other provisions of the Agreement invalid, inoperative, or unenforceable.
The invalidity of any portion of this Agreement shall not affect the remaining
portions of the Agreement.
D. Limitation of Rights. This Agreement is intended to be and is
for the sole and exclusive benefit of the Xxxxxxx Group, the PBGC, and their
assigns under X.E.. Nothing expressed or mentioned in or to be implied from the
Agreement gives any person other than the Xxxxxxx Group and PBGC any legal or
equitable right, remedy, or claim against the Xxxxxxx Group or PBGC under or in
respect of this Agreement.
E. Assignment. This Agreement may not be assigned in whole or in
part by either party without the express written consent of the other party.
F. Notices. All notices, requests, or other communications shall
be in writing and shall be deemed to have been given (1) if by courier, when
receipted for, (2) if by certified mail, return receipt requested, when the
return receipt has been received, or (3) if by telex, facsimile or similar
electronic transfer, when sent, with receipt confirmed, address as follows:
Xxxxxxx:
Mr. Xxxxx Xxxxxx
Chief Executive Officer
Xxxxxxx Inc.
00 Xxxxxx Xxxxxxxxx
Xxxxx 000
-00-
Xxxxxxxxxx, Xxxxxxxx, 00000
With copy to:
Xxxxxx X. Xxxxx, Esq.
Xxxxx Day
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
PBGC: Director, Corporate Finance and Negotiations Department
Pension Benefit Guaranty Corporation
0000 X Xxxxxx, XX, Xxxxx 000
Xxxxxxxxxx, XX 00000-0000
Facsimile: (000) 000-0000
With copy to:
General Counsel
Pension Benefit Guaranty Corporation
0000 X Xxxxxx, XX, Xxxxx 000
Xxxxxxxxxx, XX 00000-0000
Facsimile: (000) 000-0000
G. Business Days. If the last date for performing any act or
exercising any right provided for in the Agreement falls on a Saturday, Sunday
or federal holiday, unless otherwise expressly provided in the Agreement, the
act may be performed or the right exercised on the next day that is not a
Saturday, Sunday, or federal holiday with the same force and effect as if done
on the date provided in the Agreement.
H. Captions and Headings. The titles and captions used in the
section headings of this Agreement are solely for the convenience of the parties
and shall not be controlling for purposes of the interpretation of this
Agreement.
I. Counterparts. This Agreement may be executed in identical
counterparts, each of which shall be an original as against the party that
signed it, and all which together shall constitute one and the same instrument.
This Agreement will be effective as of the latest date on which it has been
signed by all the parties. The term of this Agreement ("Term") shall be from the
date indicated in the preceding sentence until the date indicated in section IV
of this Agreement; provided, however, that if the Reorganization Plan is not
consummated, this Agreement shall be null and void.
-17-
J. Amendment and Waivers. No amendment of any provision of this
Agreement shall be valid unless the amendment is in writing and signed by the
parties to this Agreement. The failure of any party to the Agreement to enforce
a provision of the Agreement shall not constitute a waiver of the party's right
to enforce that provision of the Agreement.
K. No Change to Governing Plan Documents or Plan Administration.
This Agreement is not a document or instrument governing the Pension Plans, nor
does anything in this Agreement amend, supplement, or derogate from the
documents and instruments governing the Pension Plans. Further, nothing in this
Agreement alters, amends, or otherwise modifies the operation or administration
of the Pension Plans.
L. Reservation of Rights. Nothing in this Agreement shall
preclude the PBGC from exercising its regulatory, enforcement, litigation, or
other authority as set forth in ERISA and the Internal Revenue Code with respect
to any person, other than as expressly provided otherwise in this Agreement.
M. Rules for Interpretation. For purposes of this Agreement,
unless otherwise provided herein:
(1) whenever from the context it is appropriate, each term,
whether stated in the singular or the plural, will include both the
singular and the plural;
(2) unless otherwise provided in this Agreement, any reference
in this Agreement to another agreement, contract, instrument or
document being in a particular form or having particular terms and
conditions means that such agreement, contract, instrument, or document
will be substantially in such form or substantially on such terms and
conditions;
(3) any reference to PBGC, Xxxxxxx, the Xxxxxxx Group, and the
Encumbered Affiliates includes such entities successors, assigns and
affiliates, provided, however, that any of the aforementioned
references will under no circumstances include a CFC or an insurance
company; and
(4) The language used in this Agreement shall be deemed to be
the language chosen by the Parties to express their mutual intent, and
no rule of strict construction shall be applied against any party
hereto. Nor shall any rule of construction that favors a non-draftsman
or a government agency be applied. A reference to any statute shall be
deemed also to refer to all rules and regulations promulgated under the
statute, unless the context requires otherwise.
-18-
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered
as of the day and year first set forth above.
PENSION BENEFIT GUARANTY CORPORATION
By: /s/ Xxxxxx X. Xxxxx
--------------------------
Name: Xxxxxx X. Xxxxx
Title: Deputy Director, Corporate Finance & Negotiations Dept.
Date: 6/18/03
XXXXXXX INC.
By: /s/ Xxxx X. Xxxxxx
--------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President & General Counsel
Date: 6/18/03
GREYHOUND LINES, INC.
By: /s/ Xxxx X. Xxxxxx
--------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
Date: 6/18/03
ENCUMBERED SUBSIDIARIES
XXXXXXX INVESTMENTS LTD., an Ontario corporation
(to be domesticated in Delaware as Xxxxxxx International, Inc.)
By: /s/ Xxxx X. Xxxxxx
--------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President and
Secretary
XXXXXXX TRANSPORTATION HOLDINGS, INC.,
a Delaware corporation
-19-
XXXXXXX TRANSPORTATION MANAGEMENT INC.,
an Ohio corporation
XXXXXXX MEDICAL HOLDINGS, INC.,
a Delaware corporation
XXXXXXX INTERNATIONAL FINANCE CORPORATION INC.,
a Delaware corporation
XXXXXXX USA, INC.,
a New York corporation
XXXXXXX TRANSPORTATION, INC.,
a Delaware corporation
By: /s/ Xxxx X. Xxxxxx
----------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President and Secretary
XXXXXXX ONE INC.,
a Delaware corporation
XXXXXXX TWO, INC.,
a Delaware corporation
S.C. FOOD SERVICES (U.S.A.), INC.,
a Delaware corporation
By: /s/ Xxxx X. Xxxxxx
----------------------------------------------
Name: Xxxx X. Xxxxxx
Title: President and Secretary
CONCORDE ADJUSTERS, INC.,
a Delaware corporation
By: /s/ Xxxx X. Xxxxxx
----------------------------------------------
Title: Vice President
XXXXXXX TRANSIT HOLDINGS, INC.,
a Delaware corporation
-20-
XXXXXXX TRANSIT, INC.,
a Delaware corporation
ALLIED BUS SALES, INC.,
an Indiana corporation
XXXXXXX TRANSIT MANAGEMENT COMPANY, INC.,
a Pennsylvania corporation
CHATHAM COACH LINES, INC.,
a Delaware corporation
XXXXXXX TRANSIT SERVICES, INC.,
a Delaware corporation
SUTRAN, INC.,
a South Dakota corporation
XXX XXXX OF TUCSON, INC.,
an Arizona corporation
SAFE RIDE SERVICES, INC.,
an Arizona corporation
By: /s/ Xxxx X. Xxxxxx
----------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Secretary
EMCARE GROUP
EMCARE HOLDINGS INC.,
a Delaware corporation
EMCARE, INC.,
a Delaware corporation
AMERICAN EMERGENCY PHYSICIANS MANAGEMENT, INC.,
a California corporation
XXXXXXX X. XXXXXXXX, INC.,
a Hawaii corporation
COORDINATED HEALTH SERVICES, INC.,
a Pennsylvania corporation
-21-
ECEP, INC.,
a Missouri corporation
EMCARE ANESTHESIA SERVICES, INC.,
a Delaware corporation
EMCARE CONTRACT OF ARKANSAS, INC.,
an Arkansas corporation
EMCARE OF ALABAMA, INC.,
an Alabama corporation
EMCARE OF ARIZONA, INC.,
an Arizona corporation
EMCARE OF CALIFORNIA, INC.,
a California corporation
EMCARE OF COLORADO, INC.,
a Colorado corporation
EMCARE OF CONNECTICUT,
a Connecticut corporation
EMCARE OF FLORIDA, INC.,
a Florida corporation
EMCARE OF GEORGIA, INC.,
a Georgia corporation
EMCARE OF HAWAII, INC.,
a Hawaii corporation
EMCARE OF INDIANA, INC.,
an Indiana corporation
EMCARE OF IOWA, INC.,
an Iowa corporation
EMCARE OF KENTUCKY, INC.,
a Kentucky corporation
EMCARE OF LOUISIANA, INC.,
a Louisiana corporation
EMCARE OF MARYLAND, LLC,
a Maryland limited liability company
EMCARE OF MICHIGAN, INC.,
a Michigan corporation
-22-
EMCARE OF MINNESOTA, INC.,
a Minnesota corporation
EMCARE OF MISSISSIPPI, INC.,
a Mississippi corporation
EMCARE OF MISSOURI, INC.,
a Missouri corporation
EMCARE OF NEVADA, INC.,
a Nevada corporation
EMCARE OF NEW HAMPSHIRE, INC.,
a New Hampshire corporation
EMCARE OF NEW JERSEY, INC.,
a New Jersey corporation
EMCARE OF NEW MEXICO, INC.,
a New Mexico corporation
EMCARE OF NEW YORK, INC.,
a New York corporation
EMCARE OF NORTH CAROLINA, INC.,
a North Carolina corporation
EMCARE OF NORTH DAKOTA, INC.,
a North Dakota corporation
EMCARE OF OHIO, INC.,
an Ohio corporation
EMCARE OF OKLAHOMA, INC.,
an Oklahoma corporation
EMCARE OF OREGON, INC.,
an Oregon corporation
EMCARE OF PENNSYLVANIA, INC.,
a Pennsylvania corporation
EMCARE OF RHODE ISLAND, INC.,
a Rhode Island corporation
EMCARE OF SOUTH CAROLINA, INC.,
a South Carolina corporation
EMCARE OF TENNESSEE, INC.,
a Tennessee corporation
-23-
EMCARE OF TEXAS, INC.,
a Texas corporation
EMCARE OF VERMONT, INC.,
a Vermont corporation
EMCARE OF VIRGINIA, INC.,
a Virginia corporation
EMCARE OF WASHINGTON, INC.,
a Washington corporation
EMCARE OF WEST VIRGINIA, INC.,
a West Virginia corporation
EMCARE OF WISCONSIN, INC.,
a Wisconsin corporation
EMCARE PHYSICIAN SERVICES, INC.,
a Delaware corporation
EMCARE PHYSICIAN PROVIDERS, INC.,
a Missouri corporation
EMCARE SERVICES OF ILLINOIS, INC.,
an Illinois corporation
EMCARE SERVICES OF MASSACHUSETTS, INC.,
a Massachusetts corporation
EM-CODE REIMBURSEMENT SOLUTIONS, INC.,
a Delaware corporation
EMERGENCY MEDICINE EDUCATION SYSTEMS, INC.,
a Texas corporation
EMERGENCY SPECIALISTS OF ARKANSAS, INC. II,
a Texas corporation
FIRST MEDICAL/EMCARE INC.,
a California corporation
HEALTHCARE ADMINISTRATIVE SERVICES, INC.,
a Delaware corporation
HELIX PHYSICIANS MANAGEMENT, INC.,
a California corporation
XXXXXX XXXXX XXXXXX, INC.,
a California corporation
-00-
XXX XXXX, XXX.,
a Delaware corporation
PACIFIC EMERGENCY SPECIALISTS MANAGEMENT, INC.,
a California corporation
PHYSICIAN ACCOUNT MANAGEMENT, INC.,
a Florida corporation
PROVIDER ACCOUNT MANAGEMENT, INC.,
a Delaware corporation
REIMBURSEMENT TECHNOLOGIES, INC.,
a Pennsylvania corporation
STAT PHYSICIANS, INC.,
a Florida corporation
THE XXXXX GROUP, INC.,
a Texas corporation
TIFTON MANAGEMENT SERVICES, INC.,
a Georgia corporation
XXXXXX EMERGENCY SERVICES, INC.,
a Georgia corporation
By: /s/ Xxxx X. Xxxxxx
----------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
AMERICAN MEDICAL RESPONSE GROUP
AMERICAN MEDICAL RESPONSE, INC.,
a Delaware corporation
AMBULANCE ACQUISITION, INC.,
a Delaware corporation
AMR BROCKTON, L.L.C.,
a Delaware limited liability company
MEDLIFE EMERGENCY MEDICAL SERVICE, INC.,
an Alabama corporation
METROPOLITAN AMBULANCE SERVICE,
a California corporation
-25-
HANK'S ACQUISITION CORP.,
an Alabama corporation
AMERICAN MEDICAL RESPONSE OF INLAND EMPIRE,
a California corporation
FOUNTAIN AMBULANCE SERVICE, INC.,
an Alabama corporation
GOLDEN GATE ASSOCIATES,
a California corporation
FLORIDA EMERGENCY PARTNERS, INC.,
a Texas corporation
SAN FRANCISCO AMBULANCE SERVICE, INC.,
a California corporation
AMERICAN MEDICAL RESPONSE NORTHWEST, INC.,
an Oregon corporation
SPRINGS AMBULANCE SERVICE, INC.,
a California corporation
AMERICAN MEDICAL RESPONSE OF COLORADO, INC.,
a Delaware corporation
MEDEVAC MIDAMERICA, INC.,
a Missouri corporation
AMERICAN MEDICAL RESPONSE WEST,
a California corporation
DESERT VALLEY MEDICAL TRANSPORT, INC.,
a California corporation
INTERNATIONAL LIFE SUPPORT, INC.,
a Hawaii corporation
MEDEVAC MEDICAL RESPONSE, INC.,
a Missouri corporation
AMERICAN MEDICAL RESPONSE OF OKLAHOMA, INC.,
a Delaware corporation
AMERICAN MEDICAL RESPONSE OF TEXAS, INC.,
a Delaware corporation
XXXX AMBULANCE SERVICE, INC.,
a Wisconsin corporation
-26-
AMERICAN MEDICAL RESPONSE HOLDINGS, INC.,
a Delaware corporation
AMERICAN MEDICAL RESPONSE MANAGEMENT, INC.,
a Delaware corporation
REGIONAL EMERGENCY SERVICES, L.P.,
a Delaware limited partnership
A1 LEASING, INC.,
a Florida corporation
MOBILE MEDIC AMBULANCE SERVICE, INC.,
a Delaware corporation
METRO AMBULANCE SERVICE, INC.,
a Delaware corporation
METRO AMBULANCE SERVICE (RURAL), INC.,
a Delaware corporation
MEDIC ONE AMBULANCE SERVICES, INC.,
a Delaware corporation
AMERICAN MEDICAL RESPONSE OF SOUTH CAROLINA, INC.,
a Delaware corporation
AMERICAN MEDICAL RESPONSE OF NORTH CAROLINA, INC.,
a Delaware corporation
AMERICAN MEDICAL RESPONSE OF GEORGIA, INC.,
a Delaware corporation
XXXXXX EASTERN AMBULANCE SERVICE, INC.,
a Florida corporation
MEDI-CAR SYSTEMS, INC.,
a Florida corporation
AMERICAN MEDICAL RESPONSE OF TENNESSEE, INC.,
a Delaware corporation
PHYSICIANS & SURGEONS AMBULANCE SERVICE, INC.,
an Ohio corporation
AMERICAN MEDICAL RESPONSE OF ILLINOIS, INC.,
a Delaware corporation
XXXXX COUNTY EMERGENCY MEDICAL SERVICES, INC.,
a Georgia corporation
-27-
MEDI-CAR AMBULANCE SERVICE, INC.,
a Florida corporation
MIDWEST AMBULANCE MANAGEMENT COMPANY,
a Delaware corporation
PARAMED, INC.,
a Michigan corporation
MERCY AMBULANCE OF EVANSVILLE, INC.,
an Indiana corporation
TIDEWATER AMBULANCE SERVICE, INC.,
a Virginia corporation
AMERICAN MEDICAL RESPONSE OF CONNECTICUT, INCORPORATED,
a Connecticut corporation
ATLANTIC AMBULANCE SERVICES ACQUISITION, INC.,
a Delaware corporation
AMERICAN MEDICAL RESPONSE OF MASSACHUSETTS, INC.,
a Massachusetts corporation
ATLANTIC/KEY WEST AMBULANCE, INC.,
a Delaware corporation
AMERICAN MEDICAL RESPONSE MID-ATLANTIC, INC.,
a Pennsylvania corporation
ATLANTIC/PALM BEACH AMBULANCE, INC.,
a Delaware corporation
AMERICAN MEDICAL RESPONSE DELAWARE VALLEY, LLC,
a Delaware limited liability company
SEMINOLE COUNTY AMBULANCE, INC.,
a Delaware corporation
METRO AMBULANCE SERVICE, INC.,
a Georgia corporation
LIFEFLEET SOUTHEAST, INC.,
a Florida corporation
BROWARD AMBULANCE, INC.,
a Delaware corporation
AMERICAN MEDICAL PATHWAYS, INC.,
a Delaware corporation
-28-
XXXXXXX MEDICAL TRANSPORTATION, INC.,
a Delaware corporation
LIFECARE AMBULANCE SERVICE, INC.,
an Illinois corporation
TEK, INC.,
an Illinois corporation
HEMET VALLEY AMBULANCE SERVICE, INC.,
a California corporation
MEDIC ONE OF XXXX, INC.,
a Georgia corporation
XXXXXX TRANSFER SERVICE, INC.,
a Mississippi corporation
MERCY LIFE CARE,
a California corporation
AMERICAN MEDICAL RESPONSE OF SOUTHERN CALIFORNIA,
a California corporation
XXXXXXX AMBULANCE SERVICE, INC.,
a Georgia corporation
MERCY, INC.,
a Nevada corporation
AMERICAN INVESTMENT ENTERPRISES, INC.,
a Nevada corporation
XXXX TRANSPORTATION SERVICE, INC.,
a New York corporation
ASSOCIATED AMBULANCE SERVICE, INC.,
a New York corporation
PARK AMBULANCE SERVICE INC.,
a New York corporation
FIVE COUNTIES AMBULANCE SERVICE, INC.,
a New York corporation
SUNRISE HANDICAP TRANSPORT CORP.,
a New York corporation
By: /s/ Xxxx X. Xxxxxx
----------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
-29-
LINC TRANSPORTATION, LLC,
a Delaware limited liability company
By: /s/ Xxxx X. Xxxxxx
----------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President and Secretary
-30-
EXHIBIT A
XXXXXXX STOCK TRUST AGREEMENT
This TRUST AGREEMENT made this 20th day of June, 2003, by and
between Xxxxxxx Investments Ltd., a corporation organized under the laws of the
Province of Ontario, Canada, to be domesticated into the United States as a
Delaware corporation and thereafter known as Xxxxxxx International, Inc. (the
"Company") and U.S. Trust Company, National Association, as trustee (the
"Trustee").
WHEREAS, the Company is a party to the proceedings under
Chapter 11 of the U.S. Bankruptcy Code, IN RE: XXXXXXX USA, INC. ET AL., CASE
NOS. 01-14099K THROUGH 01-14104K (the "Chapter 11 Proceedings"), in the United
States Bankruptcy Court for the Western District of New York;
WHEREAS, affiliates of the Company are the sponsors of the
following pension plans:
1. Greyhound Lines, Inc. Salaried Employees Defined
Benefit Plan;
2. Greyhound Inc. Amalgamated Transit Union Local 1700
Council Retirement & Disability Plan;
3. Texas New Mexico and Oklahoma Coaches, Inc. Employee
Retirement Plan;
4. Vermont Transit Co. Inc. Employees Defined Benefit
Pension Plan;
5. Carolina Coach Company Pension Plan;
6. Carolina Coach Co. International Association of
Machinist Pension Plan; and
7. Carolina Coach Company Amalgamated Transit Union
Pension Plan
(the "Pension Plans"), all of which are qualified defined benefit plans under
Section 401(a) of the Internal Revenue Code (the "Code");
WHEREAS, the Company has entered into a settlement agreement
with the Pension Benefit Guaranty Corporation ("PBGC"), dated June 20, 2003,
(the "Settlement Agreement") in connection with the Chapter 11 Proceedings and
the Pension Plans; and
WHEREAS, pursuant to the Settlement Agreement, the Company
desires to establish this irrevocable trust (the "Trust") and to transfer to the
Trust shares of Common Stock of the Company (the "Company Stock"), which shall
be sold by the Trustee pursuant to the terms of the Trust to generate proceeds
which shall be transferred to the Pension Plans, in satisfaction of the
Company's obligations under the Settlement Agreement;
NOW, THEREFORE, the parties do hereby establish the Trust and
agree that the Trust shall be comprised, held and disposed of as follows:
ARTICLE I
ESTABLISHMENT
Section 1.1 Trust Fund. The assets held at any time and from time to time
under the Trust collectively are herein referred to as the "Trust Fund" and
shall consist of contributions received by the Trustee, proceeds of sales,
investments and reinvestments thereof, the earnings and income thereon, and less
disbursements thereof. Except as herein otherwise provided, title to the assets
of the Trust Fund shall at all times be vested in the Trustee and securities
that are part of the Trust Fund shall be held in such manner that the Trustee's
name and the fiduciary capacity in which the securities are held are fully
disclosed, subject to the right of the Trustee to hold title in the name of a
nominee, and the interests of others in the Trust Fund shall be only the right
to have such assets received, held, invested, administered and distributed in
accordance with the provisions of this Agreement. This Trust shall be known as
the Xxxxxxx Stock Trust. The Company and the Trustee intend the Trust to be an
independent legal entity. In accordance with the Settlement Agreement, the
assets of the Trust Fund are subject to an exclusive and first priority lien in
favor of the PBGC. Pursuant to the terms of the Settlement Agreement, such lien
shall be extinguished as and to the extent that the entire Trust Fund, including
the proceeds of sales of the shares of Company Stock, are transferred to the
Pension Plans.
Section 1.2 Trustee Acceptance. The Trustee hereby accepts this Trust and
all the Company's right, title and interest in the property transferred to the
Trust and all other property coming into the possession of the Trustee pursuant
to the terms of this Agreement, and the Trustee agrees to hold, administer and
distribute the Trust property, the income therefrom, and the proceeds thereof
according to the terms and conditions hereof.
Section 1.3 Grantor Trust. The Trust has been established for the purpose
of reducing the Company's cash funding obligations to the Pension Plans under
the Settlement Agreement. The Trust is intended to be a grantor trust within the
meaning of Section 671 of the Code and shall be construed accordingly. The Trust
is intended not to be subject to the provisions of the Employee Retirement
Income Security Act of 1974, as amended.
Section 1.4 Irrevocability. The Trust shall not be revocable by the
Company. This Agreement may be amended as provided in Section 9.1.
ARTICLE II
FUNDING OF TRUST
Section 2.1 Receipt of Assets. Concurrently with the execution of this
Agreement, the Company is conveying to the Trust 3,777,419 shares of Company
Stock. The Trustee shall receive and accept for the purposes hereof all such
shares of Common Stock, and pursuant to the terms of this Agreement, shall hold,
manage, administer and distribute the Trust Fund. The Trustee need not inquire
into the source of any money or property transferred to it nor into the
authority or right of the transferor of such money or property to transfer such
money or property to the Trustee. All right, title and interest in and to the
assets of the Trust Fund shall at all times
- 2 -
be vested exclusively in the Trustee. The Trustee shall have only such duties
with respect to the Trust Fund as are set forth in this Agreement.
Section 2.2 Rights Regarding Common Stock. With respect to the manner of
voting of Company Stock held by the Trust or decisions in connection with any
tender or exchange offer for Company Stock held by the Trustee, the Trustee
shall vote the Company Stock or respond to such tender or exchange offer in the
manner recommended by the Company's Board of Directors.
ARTICLE III
DISBURSEMENTS FROM TRUST
Section 3.1 Disbursements Made To Pension Plans. As soon as practicable
after any sale of Company Stock by the Trustee, as provided in Section 3.2, the
Trustee shall transfer the net proceeds from such sale to one or more of the
Pension Plans as directed by the Company. The Company shall have no right or
power to direct the Trustee to return to the Company or to divert to others any
of the Trust assets and no asset of the Trust shall revert to the Company under
any circumstances.
Section 3.2 Sale of Stock. Subject to compliance with applicable federal
and state securities laws, the Trustee shall sell the Company Stock held by the
Trust as soon as practicable but not later than December 31, 2004 in accordance
with the guidelines set forth in this Section 3.2.
(a) The Company Stock may be sold in one or more transactions for
no less than the current fair market value at the time of any such sale
as determined by the Trustee. Any such sale shall be in accordance with
applicable state and federal laws and regulations.
(b) The Trustee, in its discretion, shall determine the time at
which the Company Stock in the Trust shall be sold. Such determination
shall be based on maximizing the proceeds from the sale of the Company
Stock.
(c) Notwithstanding the foregoing, the Trustee must obtain the
Company's consent prior to selling the Company Stock. In addition, the
Company may, at any time, direct the Trustee to sell the Company Stock
in accordance with the terms of this Agreement, and in such case the
Trustee shall sell Company Stock in accordance with such direction,
without regard to whether the Trustee has determined that the Company
Stock should be sold.
ARTICLE IV
INVESTMENTS
Section 4.1 Investments. The Trustee shall invest and reinvest the Trust
Fund exclusively in Company Stock; provided, however, that the Trustee may
temporarily invest any cash held in the Trust from time to time in (i) United
States Government obligations with maturities of less than one year, (ii)
interest-bearing accounts including, but not limited to, certificates of
deposit, time deposits, savings accounts and money market accounts, with
maturities of less than one year, or (iii) a common, collective or pooled trust
fund maintained by the Trustee whose investments are limited to those described
in clauses (i) and (ii) of this Section 4.1, in which event such part of the
Trust Fund so invested shall be subject to all of the terms and provisions of
the common,
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collective or pooled trust fund which contemplate the commingling for investment
purposes of such trust assets with trust assets of other trusts.
Section 4.2 Trustee Duties. Subject to Section 3.2, the Trustee shall have
no duty to determine or review the merit or suitability of investing the Trust
Fund in Company Stock for the objectives of the Trust.
ARTICLE V
ACCOUNTING BY TRUSTEE
Section 5.1 The Trustee shall keep accurate and detailed records of all
investments, receipts, disbursements and other transactions. All such records
shall be open to inspection and audit at all reasonable times by the Company or
the PBGC. Within sixty days following the close of each Trust Year and within
sixty days after the removal or resignation of a Trustee, the Trustee shall
deliver to the Company and the PBGC a written account of its administration of
the Trust during such year or during the period from the close of the last
preceding Trust Year to the date of such removal or resignation, setting forth
all investments, receipts, disbursements and other transactions effected by it,
including a description of all securities and investments purchased and sold
with the cost and net proceeds of such purchases or sales, and showing all cash,
securities and other property held in the Trust at the end of such year or as of
the date of such removal or resignation, as the case may be. All tax returns and
other regulatory filings required by the Trust shall be prepared by the Company.
The Trustee shall fully cooperate with the Company in the Company's preparation
of the tax returns and regulatory filings by providing all records and
information needed to accurately complete such returns and filings and by taking
any other actions that might assist the Company in its preparation of the
returns and filings. The Trustee shall make such filings as shall be directed by
the Company and shall be entitled to rely on the accuracy of all returns and
filings so prepared by the Company.
ARTICLE VI
RESPONSIBILITY AND POWERS OF TRUSTEE
Section 6.1 Duty of Trustee. (a) In performing its duties hereunder, the
Trustee shall act with the care, skill, prudence and diligence under the
circumstances then prevailing that a prudent person acting in like capacity and
familiar with such matters would use in the conduct of an enterprise of a like
character and with like aims, provided, however, that the Trustee shall incur no
liability to any person for any action taken pursuant to a direction, request or
approval given by the Company in accordance with the terms of this Agreement.
(b) The Trustee shall have without exclusion all powers conferred
on Trustees by applicable law, unless expressly provided otherwise
herein.
(c) The Trustee shall not be liable in connection with the
performance of its duties hereunder except for its negligence or bad
faith; provided, however, that the Trustee shall incur no liability for
any action taken by the Trustee in accordance with the terms of this
Agreement or pursuant to a direction, request, or approval given by the
Company in accordance with the terms of this Agreement.
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Section 6.2 Indemnification. The Company shall indemnify and save harmless
the Trustee, its officers, directors and employees, for and from any loss or
expense (including reasonable attorneys' fees) arising (a) from the Trustee's
performance of its duties in conformance with the terms of the Agreement,
including any liability alleged to have resulted from a violation of law,
including, without limitation, the Securities Act of 1933, or the rules and
regulations of any authority having jurisdiction over the Company or any of its
affairs, (b) out of any matter as to which this Agreement provides that the
Trustee is directed, protected, not liable, or not responsible, or (c) from the
Trustee's delay or failure to act as a result of the Company's failure or delay
in providing consent for such act, to the extent the Company's consent is
required by the terms of this Agreement; provided, however, that the foregoing
provisions of this Section 6.2 shall not apply to any loss or expense resulting
from the Trustee's own negligence, recklessness, bad faith, willful misconduct
or breach of fiduciary duty.
Section 6.3 Management and Control of Trust Fund. Subject to the terms of
this Agreement, the Trustee shall have exclusive authority, discretion and
responsibility to manage and control the assets of the Trust Fund.
Section 6.4 Powers of Trustee. Without in any way limiting the powers and
discretion conferred upon it by the other provisions of this Agreement or by
law, but subject to the other provisions of this Agreement, the Trustee is
expressly authorized and empowered:
(a) To sell, exchange, convey, transfer or otherwise dispose of
any property held by it by private contract or at public auction, and
no person dealing with the Trustee shall be bound to see to the
application of the purchase money or to inquire into the validity,
expediency or propriety of any such sale or other disposition.
(b) To purchase, receive, or subscribe for any securities or other
property and to retain in trust such securities or other property.
(c) To vote any stocks, bonds or other securities; to give general
or special proxies or powers of attorney with or without power of
substitution; to exercise any conversion privileges, subscription
rights or other options and to make any payments incidental thereto; to
consent to or otherwise participate in corporate reorganizations or
other changes affecting corporate securities and to delegate
discretionary powers and to pay any assessments or charges in
connection therewith; and generally to exercise any of the powers of an
owner with respect to stocks, bonds, securities or other property held
in the Trust Fund.
(d) To make, execute and deliver, as Trustee, any and all deeds,
leases, mortgages, conveyances, waivers, releases, or other instruments
in writing necessary or desirable for the accomplishment of any of the
powers granted herein.
(e) To register any investment held in the Trust Fund in its own
name or in the name of a nominee and to hold any investment in bearer
form, or to combine certificates representing such investments with
certificates of the same issue held by the Trustee in other fiduciary
capacities, or to deposit or to arrange for the deposit of such
securities in a qualified central depositary even though, when so
deposited, such securities may be
- 5 -
merged and held in bulk in the name of the nominee of such depositary
with other securities deposited therein by any other person, or to
deposit or to arrange for the deposit of any securities issued by the
United States Government, or any agency or instrumentality thereof,
with a Federal Reserve Bank, but the books and records of the Trustee
shall at all times show that all such investments are part of the Trust
Fund.
(f) To employ suitable agents, depositaries and counsel, domestic
or foreign.
(g) To compromise or otherwise adjust all claims in favor of or
against the Trust.
(h) To settle, compromise or submit to arbitration any claims,
debts, or damages, due or owing to or from the Trust, to commence or
defend suits or legal proceedings and to represent the Trust in all
suits or legal proceedings in any court of law or before any other body
or tribunal.
(i) To do all things that the Trustee reasonably deems necessary
to carry out the purposes of this Trust.
ARTICLE VII
TAXES AND COMPENSATION OF TRUSTEE
Section 7.1 Taxes. All real and personal property taxes, income taxes and
other taxes of any and all kinds levied or assessed under existing or future
laws against the Trust Fund shall be paid from the Trust Fund. The Trustee shall
be authorized to sell Trust assets to the extent needed to pay the taxes
contemplated in the foregoing sentence.
Section 7.2 Trustee Compensation. The Trustee shall be entitled to receive
such reasonable compensation for its services as shall be agreed upon in writing
by the Company and the Trustee. The compensation and expenses of the Trustee
shall be paid directly by the Company.
ARTICLE VIII
REPLACEMENT OF TRUSTEE
Section 8.1 The Trustee acting hereunder may resign at any time by giving
sixty days' prior written notice to the Company, which notice or time period may
be waived by the Company. The Company may remove the Trustee at any time upon
sixty days' prior written notice to the Trustee, which notice or time period may
be waived by the Trustee. In case of the resignation or removal of the Trustee,
the Company shall appoint a successor trustee. Any successor trustee shall be an
independent, institutional trustee and shall have the same powers and duties as
those conferred upon the Trustee named in this Trust Agreement. The removal of a
Trustee and the appointment of a new trustee shall be by a written instrument
delivered to the Trustee. Upon the appointment of a successor trustee and after
the final account of the resigning or removed Trustee has been approved or
settled, as provided in Article V hereof, the resigning or removed Trustee shall
transfer or deliver the Trust Fund to such successor trustee. Any Trustee so
resigning or removed shall make no surrender charge with respect thereto.
- 6 -
ARTICLE IX
AMENDMENT OR TERMINATION
Section 9.1 Amendment. This Agreement may be amended by agreement between
the Trustee and the Company at any time or from time to time and in any manner,
except that no such amendment may (i) make the Trust revocable or (ii) conflict
with the requirements of the Settlement Agreement. Any such amendment shall be
expressed in an instrument executed by the Company and the Trustee and shall
become effective as of the date designated in such instrument or, if no such
date is designated, upon the date of the execution of such instrument. If the
Trustee is unable or unwilling to execute any such amendment, it may resign or
be removed as provided in Section 8.1 hereof.
Section 9.2 Termination. The Trust shall terminate upon the later of (a)
the date on which the Trust no longer holds any assets, or (b) the date as of
which the Trustee has wound up the affairs of the Trust.
ARTICLE X
MISCELLANEOUS
Section 10.1 Governing Law. The provisions of this Agreement shall be
governed by and construed in accordance with the laws of the State of Delaware.
Section 10.2 Severability. If any provisions of this Agreement shall be
held by a court of competent jurisdiction to be invalid or unenforceable, the
remaining provisions of this Agreement shall continue to be fully effective.
Section 10.3 Notices. All notices and other communications provided for in
this Agreement shall be deemed validly given only if they are in writing and
delivered personally or sent by certified mail, postage prepaid, or by overnight
courier, or by telecopier, to the following addresses or such other address as
either party provides to the other party at the address set forth below:
If to the Company:
Mr. Xxxxx Xxxxxx
Xxxxxxx International, Inc.
00 Xxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
With copy to:
Xxxxxx X. Xxxxx, Esq.
Xxxxx Day
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Facsimile: (000) 000-0000
- 7 -
If to the PBGC:
Director, Corporate Finance and Negotiations Department
Pension Benefit Guaranty Corporation
0000 X Xxxxxx, XX, Xxxxx 000
Xxxxxxxxxx, XX 00000-0000
Facsimile: (000) 000-0000
With copy to:
General Counsel
Pension Benefit Guaranty Corporation
0000 X Xxxxxx, XX, Xxxxx 000
Xxxxxxxxxx, XX 00000-0000
Facsimile: (000) 000-0000
If to the Trustee:
U.S. Trust Company, National Association
000 X. 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xx. Xxxx X. Xxxxxx
Section 10.4 Assignment. Neither the Company nor the Trustee may assign
this Agreement without the prior written consent of the other, except that the
Trustee may, after prior notification to the Company and the PBGC, assign its
rights and delegate its duties hereunder to any corporation or entity which
directly or indirectly is controlled by, or is under common control with, the
Trustee. This Trust Agreement shall be binding upon, and inure to the benefit
of, the Company and the Trustee and their respective successors and permitted
assigns. Any entity which shall by merger, consolidation, purchase, or
otherwise, succeed to substantially all the trust business of the Trustee shall,
upon such succession and without any appointment or other action by the Company,
be and become successor trustee hereunder, upon notification to the Company and
the PBGC.
Section 10.5 References. Unless the context clearly indicates to the
contrary, a reference to a statute, regulation, document or provision shall be
construed as referring to any subsequently enacted, adopted or executed
counterpart.
Section 10.6 Headings. Headings and subheadings in this Agreement are
inserted for convenience of reference only and are not to be considered in the
construction of its provisions.
Section 10.7 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall constitute an original.
[SIGNATURES ON FOLLOWING PAGE]
- 8 -
IN WITNESS WHEREOF, the parties hereto have caused this
instrument to be executed on the date set forth below by their duly authorized
officers effective as of June 20, 2003.
XXXXXXX INVESTMENTS LTD.
BY:__________________________
NAME:________________________
TITLE:_______________________
DATE: _______________, 2003
U.S. TRUST COMPANY,
NATIONAL ASSOCIATION
BY:__________________________
NAME:________________________
TITLE:_______________________
DATE: _______________, 2003
- 9 -
EXHIBIT B
ENCUMBERED SUBSIDIARIES
1. XXXXXXX INVESTMENTS, LTD., an Ontario corporation (to be domesticated
in Delaware as Xxxxxxx International, Inc.)
2. XXXXXXX TRANSPORTATION HOLDINGS, INC., a Delaware corporation
3. XXXXXXX TRANSPORTATION MANAGEMENT INC., an Ohio corporation
4. XXXXXXX MEDICAL HOLDINGS, INC., a Delaware corporation
5. XXXXXXX INTERNATIONAL FINANCE CORPORATION INC., a Delaware corporation
6. XXXXXXX USA, INC., a New York corporation
7. XXXXXXX TRANSPORTATION, INC., a Delaware corporation
8. XXXXXXX ONE INC., a Delaware corporation
9. XXXXXXX TWO, INC., a Delaware corporation
10. S.C. FOOD SERVICES (U.S.A.), INC., a Delaware corporation
11. CONCORDE ADJUSTERS, INC., a Delaware corporation
12. XXXXXXX TRANSIT HOLDINGS, INC., a Delaware corporation
13. XXXXXXX TRANSIT, INC., a Delaware corporation
14. ALLIED BUS SALES, INC., an Indiana corporation
15. XXXXXXX TRANSIT MANAGEMENT COMPANY, INC., a Pennsylvania corporation
16. CHATHAM COACH LINES, INC., a Delaware corporation
17. XXXXXXX TRANSIT SERVICES, INC., a Delaware corporation
18. SUTRAN, INC., a South Dakota corporation
19. XXX XXXX OF TUCSON, INC., an Arizona corporation
20. SAFE RIDE SERVICES, INC., an Arizona corporation
EMCARE GROUP
21. EMCARE HOLDINGS INC., a Delaware corporation
22. EMCARE, INC., a Delaware corporation
23. AMERICAN EMERGENCY PHYSICIANS MANAGEMENT, INC., a California
corporation
24. XXXXXXX X. XXXXXXXX, INC., a Hawaii corporation
25. COORDINATED HEALTH SERVICES, INC., a Pennsylvania corporation
26. ECEP, INC., a Missouri corporation
27. EMCARE ANESTHESIA SERVICES, INC., a Delaware corporation
28. EMCARE CONTRACT OF ARKANSAS, INC., an Arkansas corporation
29. EMCARE OF ALABAMA, INC., an Alabama corporation
30. EMCARE OF ARIZONA, INC., an Arizona corporation
31. EMCARE OF CALIFORNIA, INC., a California corporation
2
32. EMCARE OF COLORADO, INC., a Colorado corporation
33. EMCARE OF FLORIDA, INC., a Florida corporation
34. EMCARE OF GEORGIA, INC., a Georgia corporation
35. EMCARE OF HAWAII, INC., a Hawaii corporation
36. EMCARE OF INDIANA, INC., an Indiana corporation
37. EMCARE OF IOWA, INC., an Iowa corporation
38. EMCARE OF KENTUCKY, INC., a Kentucky corporation
39. EMCARE OF LOUISIANA, INC., a Louisiana corporation
40. EMCARE OF MARYLAND, LLC, a Maryland limited liability company
41. EMCARE OF MICHIGAN, INC., a Michigan corporation
42. EMCARE OF MINNESOTA, INC., a Minnesota corporation
43. EMCARE OF MISSISSIPPI, INC., a Mississippi corporation
44. EMCARE OF MISSOURI, INC., a Missouri corporation
45. EMCARE OF NEVADA, INC., a Nevada corporation
46. EMCARE OF NEW HAMPSHIRE, INC., a New Hampshire corporation
47. EMCARE OF NEW JERSEY, INC., a New Jersey corporation
48. EMCARE OF NEW MEXICO, INC., a New Mexico corporation
3
49. EMCARE OF NEW YORK, INC., a New York corporation
50. EMCARE OF NORTH CAROLINA, INC., a North Carolina corporation
51. EMCARE OF NORTH DAKOTA, INC., a North Dakota corporation
52. EMCARE OF OHIO, INC., an Ohio corporation
53. EMCARE OF OKLAHOMA, INC., an Oklahoma corporation
54. EMCARE OF OREGON, INC., an Oregon corporation
55. EMCARE OF PENNSYLVANIA, INC., a Pennsylvania corporation
56. EMCARE OF RHODE ISLAND, INC., a Rhode Island corporation
57. EMCARE OF SOUTH CAROLINA, INC., a South Carolina corporation
58. EMCARE OF TENNESSEE, INC., a Tennessee corporation
59. EMCARE OF TEXAS, INC., a Texas corporation
60. EMCARE OF VERMONT, INC., a Vermont corporation
61. EMCARE OF VIRGINIA, INC., a Virginia corporation
62. EMCARE OF WASHINGTON, INC., a Washington corporation
63. EMCARE OF WEST VIRGINIA, INC., a West Virginia corporation
64. EMCARE OF WISCONSIN, INC., a Wisconsin corporation
65. EMCARE PHYSICIAN SERVICES, INC., a Delaware corporation
4
66. EMCARE PHYSICIAN PROVIDERS, INC., a Missouri corporation
67. EMCARE SERVICES OF ILLINOIS, INC., an Illinois corporation
68. EMCARE SERVICES OF MASSACHUSETTS, INC., a Massachusetts corporation
69. EM-CODE REIMBURSEMENT SOLUTIONS, INC., a Delaware corporation
70. EMERGENCY MEDICINE EDUCATION SYSTEMS, INC., a Texas corporation
71. EMERGENCY SPECIALISTS OF ARKANSAS, INC. II, a Texas corporation
72. FIRST MEDICAL/EMCARE INC., a California corporation
73. HEALTHCARE ADMINISTRATIVE SERVICES, INC., a Delaware corporation
74. HELIX PHYSICIANS MANAGEMENT, INC., a California corporation
75. XXXXXX XXXXX XXXXXX, INC., a California corporation
76. OLD STAT, INC., a Delaware corporation
77. PACIFIC EMERGENCY SPECIALISTS MANAGEMENT, INC., a California
corporation
78. REIMBURSEMENT TECHNOLOGIES, INC., a Pennsylvania corporation
79. STAT PHYSICIANS, INC., a Florida corporation
80. THE XXXXX GROUP, INC., a Texas corporation
5
81. TIFTON MANAGEMENT SERVICES, INC., a Georgia corporation
82. XXXXXX EMERGENCY SERVICES, INC., a Georgia corporation
AMERICAN MEDICAL RESPONSE GROUP
83. AMERICAN MEDICAL RESPONSE, INC., a Delaware corporation
84. AMBULANCE ACQUISITION, INC., a Delaware corporation
85. AMR BROCKTON, L.L.C., a Delaware limited liability company
86. MEDLIFE EMERGENCY MEDICAL SERVICE, INC., an Alabama corporation
87. METROPOLITAN AMBULANCE SERVICE, a California corporation
88. HANK'S ACQUISITION CORP., an Alabama corporation
89. AMERICAN MEDICAL RESPONSE OF INLAND EMPIRE, a California corporation
90. FOUNTAIN AMBULANCE SERVICE, INC., an Alabama corporation
91. GOLDEN GATE ASSOCIATES, a California corporation
92. FLORIDA EMERGENCY PARTNERS, INC., a Texas corporation
93. SAN FRANCISCO AMBULANCE SERVICE, INC., a California corporation
94. AMERICAN MEDICAL RESPONSE NORTHWEST, INC., an Oregon corporation
95. SPRINGS AMBULANCE SERVICE, INC., a California corporation
96. AMERICAN MEDICAL RESPONSE OF COLORADO, INC., a Delaware corporation
6
97. MEDEVAC MIDAMERICA, INC., a Missouri corporation
98. AMERICAN MEDICAL RESPONSE WEST, a California corporation
99. DESERT VALLEY MEDICAL TRANSPORT, INC., a California corporation
100. INTERNATIONAL LIFE SUPPORT, INC., a Hawaii corporation
101. MEDEVAC MEDICAL RESPONSE, INC., a Missouri corporation
102. AMERICAN MEDICAL RESPONSE OF OKLAHOMA, INC., a Delaware corporation
103. AMERICAN MEDICAL RESPONSE OF TEXAS, INC., a Delaware corporation
104. XXXX AMBULANCE SERVICE, INC., a Wisconsin corporation
105. AMERICAN MEDICAL RESPONSE HOLDINGS, INC., a Delaware corporation
106. AMERICAN MEDICAL RESPONSE MANAGEMENT, INC., a Delaware corporation
107. REGIONAL EMERGENCY SERVICES, L.P., a Delaware limited partnership
108. A1 LEASING, INC., a Florida corporation
109. MOBILE MEDIC AMBULANCE SERVICE, INC., a Delaware corporation
110. METRO AMBULANCE SERVICES, INC., a Delaware corporation
111. METRO AMBULANCE SERVICE (RURAL), INC., a Delaware corporation
112. MEDIC ONE AMBULANCE SERVICES, INC., a Delaware corporation
113. AMERICAN MEDICAL RESPONSE OF SOUTH CAROLINA, INC., a Delaware
corporation
7
114. AMERICAN MEDICAL RESPONSE OF NORTH CAROLINA, INC., a Delaware
corporation
115. AMERICAN MEDICAL RESPONSE OF GEORGIA, INC., a Delaware corporation
116. XXXXXX EASTERN AMBULANCE SERVICE, INC., a Florida corporation
117. MEDI-CAR SYSTEMS, INC., a Florida corporation
118. AMERICAN MEDICAL RESPONSE OF TENNESSEE, INC., a Delaware corporation
119. PHYSICIANS & SURGEONS AMBULANCE SERVICE, INC., an Ohio corporation
120. AMERICAN MEDICAL RESPONSE OF ILLINOIS, INC., a Delaware corporation
121. XXXXX COUNTY EMERGENCY MEDICAL SERVICES, INC., a Georgia corporation
122. MEDI-CAR AMBULANCE SERVICE, INC., a Florida corporation
123. MIDWEST AMBULANCE MANAGEMENT COMPANY, a Delaware corporation
124. PARAMED, INC., a Michigan corporation
125. MERCY AMBULANCE OF EVANSVILLE, INC., an Indiana corporation
126. TIDEWATER AMBULANCE SERVICE, INC., a Virginia corporation
127. AMERICAN MEDICAL RESPONSE OF CONNECTICUT, INCORPORATED, a Connecticut
corporation
128. ATLANTIC AMBULANCE SERVICES ACQUISITION, INC., a Delaware corporation
129. AMERICAN MEDICAL RESPONSE OF MASSACHUSETTS, INC., a Massachusetts
corporation
130. ATLANTIC/KEY WEST AMBULANCE, INC., a Delaware corporation
8
131. AMERICAN MEDICAL RESPONSE MID-ATLANTIC, INC., a Pennsylvania
corporation
132. ATLANTIC/PALM BEACH AMBULANCE, INC., a Delaware corporation
133. AMERICAN MEDICAL RESPONSE DELAWARE VALLEY, LLC, a Delaware limited
liability company
134. SEMINOLE COUNTY AMBULANCE, INC., a Delaware corporation
135. METRO AMBULANCE SERVICE, INC., a Georgia corporation
136. LIFEFLEET SOUTHEAST, INC., a Florida corporation
137. BROWARD AMBULANCE, INC., a Delaware corporation
138. AMERICAN MEDICAL PATHWAYS, INC., a Delaware corporation
139. XXXXXXX MEDICAL TRANSPORTATION, INC., a Delaware corporation
140. LIFECARE AMBULANCE SERVICE, INC., an Illinois corporation
141. TEK, INC., an Illinois corporation
142. HEMET VALLEY AMBULANCE SERVICE, INC., a California corporation
143. MEDIC ONE OF XXXX, INC., a Georgia corporation
144. XXXXXX TRANSFER SERVICE, INC., a Mississippi corporation
145. MERCY LIFE CARE, a California corporation
146. AMERICAN MEDICAL RESPONSE OF SOUTHERN CALIFORNIA, a California
corporation
147. XXXXXXX AMBULANCE SERVICE, INC., a Georgia corporation
9
148. MERCY, INC., a Nevada corporation
149. AMERICAN INVESTMENT ENTERPRISES, INC., a Nevada corporation
150. XXXX TRANSPORTATION SERVICE, INC., a New York corporation
151. ASSOCIATED AMBULANCE SERVICE, INC., a New York corporation
152. PARK AMBULANCE SERVICE INC., a New York corporation
153. FIVE COUNTIES AMBULANCE SERVICE, INC., a New York corporation
154. SUNRISE HANDICAP TRANSPORT CORP., a New York corporation
10
